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 KF 1050.T55 
 
 A treatise on the law of sales of person 
 
 3 1924 019 325 475 
 
Cornell University 
 Library 
 
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 tine Cornell University Library. 
 
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 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924019325475 
 
A TREATISE 
 
 THE LAW OF SALES 
 
 PERSONAL PROPERTY. 
 
 INCLUDING THE LAW OF 
 
 CHATTEL MORTGAGES. 
 
 CHRISTOPHEE G. TIEDEMAN, 
 
 Author of "Real Froperty," "Commercial Paper," Mte., Etc, 
 
 ST. LOUIS: 
 
 THE F. II. THOMAS LAW BOOK CO. 
 
 1891. 
 
Id 3 U 
 
 Kntered accordli.-, to A/t of Con/cess, in the year 1891, by 
 
 C. G. TIEl>EMAN, 
 In the Office ol the Librarian of Congress, at Washington. 
 
 T'Ttss of N^on-Jonw Prinfivff Co, 
 St. Louis, Mo. 
 
PREFACE. 
 
 In sending to the press this treatise on the law of Sales 
 of Personal Property, it will not be necessary to enter into 
 any lengthy explanation of the purpose or scope of the 
 volume. The subject is not a new one, and yet there 
 can be no doubt that on that subject a comprehensive 
 treatise of a distinctively American type is needed. And 
 the author believes that in the present volume he is sup- 
 plying this want. The treatise is constructed on the plan 
 which presumably accounts for the flattering reception 
 which the profession has accorded to his works on " Real 
 Property" and "Commercial Eaifef," and the author has 
 attempted to reproduce in this volume the same conciseness 
 and clearness of statement. 
 
 The table of contents will disclose the fact that the book 
 includes besides what ordinarily appears in other treatises, 
 special discussions of Chattel Mortgages — which is only one 
 kind of conditional sales — Involuntary and Judicial Sales, 
 Auction Sales, Sales by Agents and Personal Representa- 
 tives, and the Rights of Bona Fide Purchasers, thus intro- 
 ducing new features, which, it is believed, add materially 
 to the value of the book. The discussion of chattel mort- 
 gages in this connection makes the book particularly valu- 
 able as a text-book in the law schools, as it dispenses with 
 the use of a separate text-book on that subject. 
 
 As in the case of the other works of the author, the at- 
 tempt is made in the present instance to make the book 
 equally valuable to the busy practitioner by the addition of 
 extensive citations of authorities, and clear differentiations 
 of the legal points settled by them. 
 
 C. G. T. 
 
 University of Missouri, 
 Columbia, Mo., Jan. 21, 1891. 
 
TABLE OF CONTENTS. 
 
 CHAPTER I. 
 
 DEFINITION AND ESSENTIAL ELEMENTS OF SALES. 
 
 Section 1. Sale defined. 
 
 2. Elements of the contract of sale. 
 
 3. Sale distinguished from bailments. 
 
 4. Sale distinguished from pledges. 
 
 5. Sale and return, distinguished from bailments with right 
 
 of purchase. 
 
 6. Sale distiHguished from contract to manufacture and return . 
 
 7. Sale distinguished from deposition — Warehouses and grain 
 
 elevators. 
 
 8. Sale distinguished from consignment. 
 
 9. Sale distinguished from lease or hiring. 
 
 10. Sale distinguished from mortgage. 
 
 11. Sale distinguished from gift. 
 
 12. Sale distinguished from exchange or barter. 
 
 13. Sale distinguished from assignment. 
 
 CHAPTER II. 
 
 PARTIES. 
 
 Section 16. Who may be parties to contract of sale. 
 
 17. Disability of infants — Liability for necessaries. 
 
 18. Infant's contracts voidable, not void. 
 39. Ratification of infant's contracts. 
 
 20. Disaffirmance of sale by Infant. 
 
 21. Lunatics and imbeciles. 
 
 22. EfEect of insanity vehen unknown to other party. 
 
 23. Lunatic's contract for necessaries. 
 
 24. Ratification of lunatic's contracts. 
 
 25. Contracts of drunken persons. 
 
VI 
 
 TABLE OF CONTENTS. 
 
 Section 26. The disability of all persons under guardianship — Spend- 
 thrifts. 
 
 27. Disability of coverture — Contracts of married women. 
 
 28. Effect of marriage in ante-nuptial contracts. 
 
 29. Exceptions to married women's contractual disability. 
 
 30. Contracts of married women with a separate estate. 
 
 CHAPTER III. 
 
 ASSETS. 
 
 Section 33. General proposition. 
 
 34. Effect of variance from offer. 
 
 35. Mistakes of fact. 
 
 36. Counter -proposition works rejection of original offer — 
 
 Effect of subsequent acceptance. 
 
 37. Conditional acceptance, when binding. 
 
 38. Acceptance must be communicated. 
 
 39. Communication by mail, telegraph, telephone, phonograph. 
 
 40. Eight to retract offer. 
 
 41. When contract for option is binding. 
 
 42. Betraction of acceptance. 
 
 43. When assent not necessary. 
 
 CHAPTER IV. 
 THE PRICE. 
 
 Section 45. Necessity of a price — Indirect stipulation of the price. 
 
 46. Determination of price referred to valuers. 
 
 47. When price is provided by implication of law. 
 
 CHAPTER V. 
 THE THING SOLD. 
 
 Section 50. Sale of what has ceased to exist. 
 
 61. Sale of thing not yet existing or not yet owned by the 
 vendor. 
 
 52. Sale of a thing in potential existence. 
 
 53. The rule in equity. 
 
TABLE OF CONTENTS. 
 
 VU 
 
 CHAPTER VI. 
 
 THE STATUTE OF FRAUDS IN RESPECT TO SALES. 
 
 Section 55, 
 56. 
 67. 
 68, 
 
 69. 
 
 60. 
 61. 
 
 62. 
 63. 
 
 64. 
 65. 
 66. 
 67. 
 68. 
 
 69. 
 70. 
 71, 
 72. 
 
 73. 
 74. 
 75. 
 76. 
 
 77. 
 78, 
 79. 
 80. 
 
 General provision and effect. 
 
 Executory and executed contracts of sale distinguished. 
 
 Statute applies to all form of sales — Auction sales. 
 
 Contracts of sale distlnguislied from contracts for work and 
 labor done and material found. 
 
 What are goods, wares and merchandise — Incorporate 
 property — Fixtures — Annual and perennial crops — 
 Fnictus naturales. 
 
 Statutory limit of value. 
 
 When does the contract for sale of goods reach or exceed 
 the limit. 
 
 The conditions of validity under tlie statute of frauds. 
 
 EHect of compliance with requirement of acceptance and 
 receipt — Limit as to time. 
 
 Proof and burden of proof, of acceptance and receipt. 
 
 Acceptance and receipt by agent. 
 
 Acceptance and receipt distinguished. 
 
 What acts constitute acceptance. 
 
 Whether inspection of goods is necessary to constitute ac- 
 ceptance — Conditional acceptances. 
 
 What constitutes a receipt of the goods. 
 
 Acceptance and receipt of part of the goods — Samples. 
 
 Earnest or part payment. 
 
 Memorandum or note in writing required — Time of execu- 
 tion. 
 
 By whom should note be made — Undisclosed principal. 
 
 To whom note should be addressed. 
 
 The form of the memorandum — Separate pieces of paper. 
 
 What the memorandum should contain — Parties subject- 
 matter — Terms — Consideration — Price. 
 
 Signature of the party to be charged. 
 
 Agent duly authorized. 
 
 Brokers' bought and sold notes. 
 
 Principal's name need not be signed. 
 
 CHAPTEE VII. 
 
 THE TRANSFER OF TITLE. 
 
 Section 82. Bxecutoiy and executed contracts of sale distinguished — 
 importance of the questlun. 
 
Viii TABLE OF CONTENTS. 
 
 Section 83. Transfer of title governed primarily by Intention of the 
 parties. 
 
 84. Delivery vrhen essential to transfer of title. 
 84a.Delivery how far essential to transfer of title as against 
 
 creditors and subsequent purchasers. 
 
 85. Delivery without transfer of title— Eeservation of jus 
 ' disponendi — Prepayment of price. 
 
 86. Sale of specific goods unconditionally. 
 
 87. Sale of specific goods conditionally. 
 
 88. Sale of goods not specific. 
 
 89. What constitutes a sufficient appropriation in sales of 
 goods not specific. 
 
 CHAPTER VIII. 
 DELIVEEY. 
 
 Section 92. What is meant by delivery. 
 
 93. When buyer entitled to delivery. 
 
 94. When and how far it is vendor's duty to make delivery. 
 
 95. Delivery to the common carrier. 
 95o. Delivery to a warehouseman. 
 
 96. Place of delivery. 
 
 97. Buyer's license to enter premises, irrevocable. 
 
 98. Time of delivery. 
 
 99. Computation of time — Divisions of time — Hour of the 
 
 day. 
 
 100. Reasonable time —Forthwith — As soon as possible. 
 
 101. Quantity to be delivered — Effect of partial delivery. 
 
 102. Effect of words of indefinite estimate — More or less — 
 
 About — Say about. 
 
 103. Delivery by installments. 
 
 104. Form of delivery — Actual and constructive delivery. 
 
 105. Symbolical delivery. 
 
 106. What delivery is sufficient as against creditors and subse- 
 
 quent purchasers. 
 
 107. Second delivery permissible, when first is defective. 
 
 108. Rescission of sale — Rights of vendee's creditors. 
 
 109. Delivery Incomplete without acceptance. 
 
 CHAPTER IX. 
 
 ACCEPTANCE. 
 
 Section 112. Acceptance and delivery concurrent acts — Effect of want 
 of acceptance. 
 
TABLE OF CONTENTS. IX 
 
 Section 113. When buyer obliged to accept — Buyer's duties in accept- 
 ance of the goods. 
 
 114. Eecelpt and acceptance distinguished — Right of inspection 
 
 of goods. 
 
 115. What constitutes acceptance — Right of inspection and 
 
 rejection of goods. 
 
 116. Acceptance, where delivery by installments. 
 
 117. Acceptance final — Right of rejection barred by acceptance. 
 
 CHAPTER X. 
 VENDOR'S LIEN. 
 
 Section 119. Definition' and general explanation. 
 
 120. Howwaived — Sale on credit — Receipt of security. 
 
 121. Lien, how lost — Tender of price ^ — Delivery of goods. 
 
 122. What delivery sufficient to destroy lien. 
 
 123. Statutory liens. 
 
 CHAPTER XI. 
 
 STOPPAGE IN TRANSITU. 
 
 Section 125. General statement and definition. 
 
 126. Who may exercise the right. 
 
 127. The conditions of exercise of the right. 
 
 128. The goods must be unpaid for — Effect of partial payment. 
 
 129. When does the transit begin. 
 
 130. When does the transit end. 
 
 131. Delivery at an Intermediate point. 
 
 132. Delivery to agent at place of destination with provision 
 
 for further transportation. 
 
 133. Delivery by vendor to ship chartered by vendee — vendee 
 
 acting as the carrier. 
 
 134. Effect of resale of goods on right of stoppage in transitu. 
 
 135. Insolvency of the buyer. 
 
 136. Mode of exercising the right. 
 
 137. Effect of stoppage of goods on rights of carriers. 
 
 CHAPTER XII. 
 
 PAYMENT AND TENDER. 
 
 Section 139. Effect of payment and tender. 
 
 140. What constitutes a sufficient or legal tender. 
 
X TABLE OF CONTENTS. 
 
 Section 141. Who may make payment. 
 
 142. To whom payment may be made —Authority of agents to 
 
 receive payment. 
 
 143. Payment made with what. 
 
 144. Payment by note or bill, when absolute or conditional. 
 
 145. Payment by checks. 
 
 146. Presumptions in respect to absolute and conditional pay- 
 
 ment, how rebutted. 
 
 147. Right of action suspended by taking bill or note in pay- 
 
 ment of debt. 
 
 148. Duties of holder of bill or note taken in payment. 
 
 149. Payment in counterfeit or worthless bills. 
 
 150. Payment in specific articles. 
 
 151 . Payment by set-off. 
 
 152. Appropriation of payments. 
 
 153. Payment on Sunday. 
 
 154. Payment by mail. 
 
 CHAPTER XIII. 
 
 FRAUDULENT SALES. 
 
 Section 157. Fraud defined — Its component parts. 
 
 158. A material misi'epresentation of facts. 
 
 159. When concealment is fraudulent. 
 
 160. Intention to deceive — Negligence in the statement of false- 
 
 hoods. 
 
 161. Reliance upon representation — Deceit must be successful. 
 
 162. Damage to party deceived. 
 
 163. Remedies for fraud. 
 
 164. Material misrepresentations by the seller. 
 
 165. Employment of pufiers or by-bidders at auction and other 
 
 sales — Other fraud in auction sales. 
 
 166. Seller's expression of opinion — Dealer's talk — His state- 
 
 ments as to value and price. 
 
 167. Seller's concealment or silence when a fraud. 
 
 168. Fraudulent devices of buyers. 
 
 169. Combination of bidders. 
 
 170. Fraudulent intent not to pay. 
 
 171. Concealment of material facts by the buyer. 
 
 172. Expressions of opinion by buyer. 
 
 173. Liability of principals, partners and joint owners for 
 
 fraudulent misrepresentation. 
 
 174. Frauds on creditors — Transfers without consideration — 
 
 Voluntary conveyances — Transfers for the purpose of 
 hindering or delaying creditors. 
 
TABLE Oh' CONTENTS. XI 
 
 Section 175. Preferences by insolvents in transfer of property in pay- 
 ment of debts, when fraudulent — Voluntary assign- 
 ments for benefit of creditors. 
 
 176. Conflicting claims of vendor and vendee's creditors. 
 
 177. Fraud on creditors, on account of vendor's retention of 
 
 possession of goods. 
 
 CHAPTER XIV. 
 
 WAREANTY. 
 
 Section 180. Warranty defined and distinguished from other liabilities. 
 
 181. The consideration of a warranty. 
 
 182. Kinds of warranties — Express and implied — Of title and 
 
 quality. 
 
 183. Power of agent to bind principal by warranties. 
 
 184. Express warranty of title. 
 
 185. Implied warranty of title. 
 
 186. How and when the warranty of title is broken. 
 
 187. Implied warranty of quality — When there is and is not an 
 
 opportunity for inspection of goods . 
 
 188. Sales by samples. 
 
 189. Identity of kind — Sales by description. 
 
 190. Implied warranty of merchantability — Manufacturer's lia- 
 
 bility — Fitness for a particular use. 
 
 191. Implied warranty in sales of provisions. 
 
 192. Effect of usage on implied warranties of quality. 
 
 193. Forms of express warranties — AfBrmations and expi-es- 
 
 sions of opinion — Express warranties distinguished 
 from fraud. 
 
 194. Interpretations of warranties — Unsoundness in animals — 
 
 Warranties as to future conditions. 
 
 195. Express warranties in relation to patent or obvious defects. 
 
 196. Written and oral warranties. 
 
 197. Eemedies for breach of warranty. 
 
 CHAPTER XV. 
 CONDITIONAL SALES. 
 
 Section 200. Conditional sales defined — Kinds of conditions. 
 
 201. Words necessary to create a conditional sale. 
 
 202. Conditions distinguished from warranties. 
 
 203. Sales upon condition distinguished from consignments — 
 
 Conditional sales disguised as leases. 
 
XI 1 TABLE OF CONTENTS. 
 
 Section 204. Sales upon condition distinguisliod from chattel mort- 
 gages — Sale with the right to repurchase. 
 
 205. Preparation of goods for delivery by vendor, as a condition 
 
 precedent. 
 
 206. Conditions precedent to be performed by purchaser — Pre- 
 
 payment as a condition. 
 
 207. Mutual or concurrent conditions — Sales for " cash on de- 
 
 livery." 
 
 208. Condition as to time and place of performance. 
 
 209. Successive deliveries — Deliveries in installments. 
 
 210. Successive payments — Sales with installments of pay- 
 
 ment. 
 
 211. Notice as a condition precedent. 
 
 212. Sales dependent upon the acts of others. 
 
 213. Sales on trial — Sale or return — What constitutes a sat- 
 
 isfactory sale. 
 214:. Sale of goods to arrive. 
 
 215. Correspondence of bulk with sample or description — Gen- 
 
 uineness of commercial securities. 
 
 216. Remedies for the breach of a condition. 
 
 217. Waiver of conditions — Effect of delivery in cash transac- 
 
 tions — Effect of delay in enforcing forfeiture. 
 
 218. Impossibility of performance — Illegality of condition — 
 
 Obstruction of performance by other parly. 
 
 219. Equitable relief against forfeiture. 
 
 CHAPTEK XVI. 
 
 CHATTEL MORTGAGES. 
 
 Section 221. Chattel mortgages defined— Conflict of common law and 
 equitable theories — Equity of redemption. 
 
 222. Conditional transfer- of the title essential to a chattel 
 
 mortgage — Mortgage distinguished from a lien. 
 
 223. Mortgages distinguished from pledges. 
 
 224. Chattel mortgages distinguished from conditional sales, 
 
 with the right to repurchase. 
 
 225. A parol chattel mortgage, when valid. 
 
 226. Form of the mortgage. 
 
 227. Separate execution of the defeasance. 
 
 228. Parol defeasance, when enforcible. 
 
 229. Who may make a chattel mortgage — Parties under disa- 
 
 bility. 
 
TABLE OF CONTENTS. XI 11 
 
 Section 230. What may be mortgaged — Mortgage of flxturfis. 
 
 231. Can a chattel mortgage cover after-acquired property. 
 
 232. How far mortgage of after-acquired property is invalid — 
 
 The mortgage in equity. 
 
 233. Description of property. 
 
 231. Description of the debt — What is a sufficient indebted- 
 ness. 
 
 235. Date of the mortgage. 
 
 236. Formality of execution — Signing and sealing. 
 
 237. Delivery and acceptance of mortgage. 
 
 238. Delivery and possession of mortgaged chattels. 
 
 239. The general provisions of the recording law. 
 
 240. The effect of recording a mortgage. 
 
 241. The right of possession of mortgaged chattels. 
 
 242. The right to profits. 
 
 243. Mortgagor's right to sell the mortgaged property. 
 
 244. Mortgagor's power to create superior liens. 
 
 245. Assignment of the mortgage. 
 
 246. Effect of tender and payment of mortgage. 
 
 247. The mortgagor's right of redemption. 
 
 248. The mortgagee's right of possession after forfeiture. 
 
 249. Foreclosure on the mortgagor's equity of redemption in 
 
 equity and at law. 
 
 250. "foreclosure under power of sale. 
 
 CHAPTEE XVII. 
 
 INVOLUNTARY SALES, INCLUDING SALES BY LEGAL PROCESS. 
 
 Section 252. General propositions as to involuntary alienation. 
 
 253. Sale by guardian of ward's personal property. 
 
 254. Husband's power to sell his wife's personal property. 
 
 255. Attachment and execution. 
 
 256. Judicial sales, what are. 
 
 257. The general requirements of judicial and execution sales. 
 
 258. Who may make the sale. 
 269. When sale must be public. 
 
 260. Notice of the sale. 
 
 261. Place of sale. 
 
 262. Sale In parcels. 
 
 263. Terms of sale. 
 
 264. Sale after return day. 
 
 265. Adjournment of the sale. 
 
XlV TABLE OP CONTENTS. 
 
 CHAPTER XVIII. 
 
 SALES BY AGENTS AND PERSONAL REPRESENTATIVES. 
 
 Section 268. The general principles of agency as applied to sales of 
 personal property. 
 
 269. Power to sell, when applied — Scope of power. 
 
 270. Agent cannot act for himself in the same transaction. 
 
 271. Brokers and factors or commission merchants distin- 
 
 guished. 
 
 272. The powers of the broker. 
 
 273. The powers of the factor or commission merchant. 
 
 274. Sales by pledges. 
 
 275. Sale by master of vessel. 
 
 276. Sales by trustees. 
 
 277. Sales by executors and administrators. 
 
 278. Sales by guardians. 
 
 CHAPTER XIX. 
 
 AUCTION SALES. 
 
 Section 280. Auction sale defined. 
 
 281. Auctioneer's license and bond. 
 
 282. Objections of the auctioneer to the seller. 
 
 283. The powers of the auctioneer. 
 
 284. The conditions of the auction sale. 
 
 285. Competition must be fair — Manner of bidding. 
 
 286. Statute of frauds in respect to auction sales. 
 
 287. The auctioneer's compensation. 
 
 288. Auctioneer, when liable as vendor. 
 
 CHAPTER XX. 
 
 ILLEGAL SALES. 
 
 Section 290. General propositions — Presumption of legality. 
 
 291. By what law is legality of sale determined. 
 
 292. Effect of partial illegality. 
 
 293. Effect of execution of illegal sales. 
 
TABLI5 Ol? CONTENTS. XV 
 
 Section 294. Sales for an unlawful purpose, when illegal. 
 
 295. Sales illegal at common law. 
 
 296. Compounding of crimes and misdemeanors as a considera- 
 
 tion. 
 
 297. Contracts with allen'enemies and in aid of rebellion. 
 
 298. Bribery. 
 
 299. Lobbying. 
 
 300. Sales of public office and private recommendations. 
 
 301. Wagers. 
 
 302. Option sales, when Illegal. 
 
 303. Contracts in restraint of trade. 
 
 304. Maintenance and champerty. 
 
 305. Offenses against morality. 
 
 306. Sales in violation of statutes. 
 
 307. Sales of smuggled goods. 
 
 308. Sunday sales. 
 
 309. Sales of intoxicating liquors. 
 
 CHAPTER XXI. 
 
 EIGHTS OF BONA FIDE PURCHASERS. 
 
 Section 310. The general doctrine. 
 
 311. Sales in marlcet overt. 
 
 312. Possession, how far evidence of ownership. 
 
 313. Purchaser of stolen and lost goods. 
 
 314. Purchaser of an illegal sale — Void judicial sales. 
 
 315. Purchaser from a banlirupt or insolvent. 
 
 316. Sale by bailees in general. 
 
 317. Delivery of goods to bailee for sale — Sale by factors - 
 
 Factors' acts. 
 
 318. Documents of title. 
 
 319. Certificates of stock. 
 
 320. Warehouse receipt. 
 
 321. Definition and nature of bills of lading. 
 
 322. Form and contents of the bill of lading. 
 
 323. Transfer of bill of lading — Its negotiability. 
 
 324. Demand, when necessary. 
 
 325. Purchaser from one having a voidable or defeasible title - 
 
 Sales upon condition subsequent and precedent. 
 826. Purchaser from the mortgagee of a chattel mortgage. 
 
 327. Purchaser from fraudulent vendee. 
 
 328. Purchaser of vendor in fraud of creditors. 
 
 329. Who are bona-fide purchasers. 
 
xvi TABLE OF CONTKNTS. 
 
 CHAPTER XXII. 
 REMEDIES FOR THE BREACH OF THE CONTRACT OP SALE. 
 
 ^Section 331. General statement. 
 
 332. Seller's remedies In executed contracts — Measure of 
 
 damages. 
 
 333. Seller's remedies in personam in executory contracts — 
 
 Measure of damages. 
 
 334. Seller's remedy against the goods — His resale of the 
 
 goods. 
 
 335. Buyer's remedies for the seller's breach of the contract — 
 
 Non-delivery of the proper goods — Measure of damages. 
 
 336. Buyer's claim to special or consequential damages. 
 
 337. Buyer's action for specific performance. 
 
THE LAW OF SALES 
 
 OF 
 
 PERSONAL PROPERTY. 
 
 CHAPTEE I. 
 
 DEFINITION AND ESSENTIAL ELEMENTS OF SALES. 
 
 Section 1. Sale defined. 
 
 2. Elements of the contract of sale. 
 
 3. Sale distinguished from bailments. 
 i. Sale distinguished from pledges. 
 
 5. Sale and return, distinguished from bailments with right of 
 
 purchase. 
 
 6. Sale distinguished from contract to manufacture and return. 
 
 7. Sale distinguished from depositum — Warehouses and grain 
 
 elevators. 
 
 8. Sale distinguished from consignment. 
 
 9. Sale distinguished from lease or hiring. 
 
 10. Sale distinguished from mortgage. 
 
 11. Sale distinguished from gift. 
 
 12. Sale distinguished from exchange or barter. 
 
 13. Sale distinguished from assignment. 
 
 § 1. Sale defined. — In the sense in which the term is to 
 be employed in this book,, a sale may be defined to be a 
 contract or agreement for the transfer of the absolute 
 property in personalty from one person to another for a 
 price in money. ^ This definition does not agree with those 
 
 1 This is substantially the deflnitlon of Chancellor Kent, in 2 Kent's 
 Com. 468, with the lexceptjon that his definition is broad enough to in- 
 clude barters or exchanges, the stipulation of his definition being that 
 the contract must be " for a valuable consideration." See, also, to the 
 same efEect, 2 Abbott's Law Diet. ,Tit. Sale, p. 442 ; Cunningham v. Ash- 
 
 1 
 
§ 1 DEB'TNITION, ESSENTIAL KLEMENTS OF SALES. [CH. I. 
 
 given in all of the authorities, many of them defining sale 
 to be a transfer of personal property, instead of being a 
 contract for the transfer of such property.^ But this 
 variance in the definitions is not material, although the 
 latter is somewhat confusing and misleading. For, when 
 they have left the consideration of the definition, the judi- 
 cial and treatise writers concur without exception in speak- 
 ing of executory and executed sales, and in pointing out 
 when in the course of negotiation the title passes. The 
 sale is executed when the title is transferred, and executory 
 when the transfer has not yet occurred. An executory 
 sale is therefore a contract for the transfer of property. 
 The transfer of title is the execution of that contract. 
 
 A parallel illustration of the character of the definition, 
 adopted in the present treatise, is to be found in a lease of 
 lands. The lease itself is an executory contract for the 
 transfer of an estate less than freehold in lands, and not 
 the conveyance itself. The estate is created and trans- 
 ferred by the execution of the lease, viz., by the delivery 
 of the land , or by the lawful acquisition by the lessee of 
 the possession of the land.^ So, in the law of sales of 
 personal property, the sale is the executory agreement for 
 the transfer of the absolute property in a thing, and the 
 conveyance consists of the execution of this agreement. 
 
 brooke, 20 Mo. 553, 556 ; ■Williamson v. Berry, 8 How. 495, 544 ; Edwards 
 V. Cottrell, 43 Iowa, 194, 204; Hutmacherc. Harris, 38 Pa. St. 491, 49(s; 
 Bigley v. Klsher, 63 Pa. St. 152, 155; Mackaness v. Long, 85 Pa. St. 158. 
 This is also the sense in which the word is used in the Roman law. 
 Bell on Sale, 9; Cunningham v. Ashbrooke, 20 Mo. 553, 557. See, also. 
 Story on Sales, § 2, et seq. 
 
 ^ " It [a sale of personal property] may be defined to be a transfer of 
 the absolute or general property in a thing for a price in money. Ben- 
 jamin on Sales, § 1. Blackstone defines a sale to be " a transmutation 
 of property from one man to another in consideration of some price." 
 2 Bl. Com. 446. See, to the same effect, Martin v. Adams, 104 Mass. 262 ; 
 Wittowski V. Wasson, 71 N. C. 451; Smith v. Weaver, 90 111. 392; Story 
 on Sales, § 1; Creveling v. Wood, 95 Pa. St. 152, 158.' 
 
 2 Tiedeman on Real Property, § 174. 
 2 
 
CH. I.] DEFINITION, ESSENTIAL ELEMENTS OF SALES. § b 
 
 In the use of the word sale in this sense, there is no incon- 
 gruity in spealsin<? of executory and executed sales. Where- 
 as, if a sale is the transfer itself of personal property, 
 then there is no such thing as an executory sale. 
 
 § 2. Elements of the contract of sale. — The essential 
 elements of the contract of sale, are, 1st, parties compe- 
 tent to contract, 2d, mutual consent, 3d, the absolute 
 property in a thing, which is the subject of the transfer ; 
 4th, a price in money. These different elements are to 
 receive special treatment in subsequent chapters ; but in 
 order that the real character of a sale may from the be- 
 ginning be understood and differentiated from other similar 
 but different transactions, it is necessary that the attention 
 of the reader should be directed immediately to the third 
 and fourth elements. 
 
 § 3. Sale distinguished from bailments. — The third 
 element requires that, to constitute a sale, the absolute 
 property in a thing must be transferred. If the property 
 in the thing, which is transferred, is special, the transaction 
 is not a sale, but a bailment. In every such case the ne- 
 cessity of distinguishing between a sale and a bailment is 
 specially felt in determining on whom the loss falls, where 
 the thing is accidentally destroyed or injured. If the trans- 
 action was a sale, any subsequent loss would fall on the 
 transferee or buyer, but if it was a bailment, the loss falls 
 on the transferrer or bailor, unless the loss was occasioned 
 by the negligence of the bailee.^ In doubtful cases, a sale 
 is to be distinguished from a bailment by the fact that the 
 
 1 See Hunt v. Wyman, 100 Mass. 100, where a horse was delivered to 
 one, with the understanding that if the horse suited him, he would take 
 it, otherwise he would return it in as good condition as he got it. Be- 
 fore he had had an opportunity to try the horse, and without any fault 
 on his part, the horse was injured so seriously that the party receiving 
 him for trial was unwilling to keep him. The transaction was held to 
 be a bailment, and the loss to fall upon the bailor. 
 
 3 
 
§ 4 DEFINITION, ESSENTIAL ELEMENTS OF SALES. [CH. I. 
 
 identical thing delivered or to be delivered is to be restored 
 to the original owner. In that case, the person to whom 
 the thing is delivered does not become the absolute owner. 
 He acquires only a special property in it, which is given to 
 him, to enable him to do with it what is called for by his 
 contract. If the identical thing is not returned, then it 
 must have become the property of the person to whom it 
 was delivered ; and, since something else of value is re- 
 turned to the original owner, the transaction must be an 
 exchange or sale, according to the circumstances. It is 
 ordinarily easy to determine whether a transaction is a sale 
 or bailment. It is not diflScult in the case of 
 
 § 4. Pledges, — given to secure the payment of a debt, or 
 the performance of some other obligation, — to determine 
 that the transaction is a bailment, and that the thing pledged 
 continues to be the general property of the pledgor, until 
 the pledgee exercises the conceded power to sell tiie pledge 
 absolutely in satisfaction of his claim, when the property 
 of the pledgor passes to the purchaser.^ And it is also 
 held that an absolute bill of sale may be shown by parol 
 evidence to have been intended as a pledge, instead of a 
 sale. 2 But the fact that a transferee agrees to account to the 
 transferrer for- any excess of price obtained by a subse- 
 quent sale of the thing does not prevent the transaction 
 from being a sale.^ The pledge must also be differentiated 
 from a conditional sale with the right to repurchase.* 
 
 1 Cortelyon v. Lansing, 2 Caines Cas. 202 ; Whitaker v. Sumner, 20 
 Pick. 405; Morgan v. Dodd, 3 Col. 553; Houser v. Kemp, 3 Pa. St. 208, 
 210; Shaw v. Wiltshire, 65 Me. 485, 492; Hazard v. Loring, 10 Cush. 267; 
 Walker v. Staples, 5 Allen, 34; Eastman v. Every, 23 Me. 248; Beeman 
 V. Lawton, 37 Me. 543. 
 
 2 Kimball?). Hildreth, 8 Allen, 167; Jones v. Eahilly, 16 Minn. 323; 
 Harper 1). Ross, 10 Allen, 332; Newton v. Fay, 10 Allen, 505, 507; Ren- 
 nock V. McCormick, 120 Mass. 275, 277. 
 
 3 Reeves v. Seeburn, 16 Iowa, 237. 
 
 * Commonwealth v. Reading Sav. Bank, 137 Mass. 431, 443; Pomez 
 V. Camors, 36 La. An. 464, 465. See post, §§ 204, 223. 
 4 
 
CH. I.J DEFINITION, KSSENTIAL ELEMENTS OF SALES. § 5 
 
 § 5. Sale and return, distinguished from bailment with 
 right of purchase.! — But a delivery of personal property 
 with the right to return is not always a bailment. If the 
 thing is delivered for the purpose of inspection and trial, 
 with the understanding that if it is suitable and satisfactory, 
 the thing is to become the property of the transferee, 
 otherwise to be returned to the original owner, the transac- 
 tion is a bailment, until the transferee has exercised his 
 right of election to make the thing his property, when the 
 transaction constitutes a sale.^ However, if the transferee 
 detains the thing beyond a reasonable time, without any 
 attempt to return it, he will be presumed to have elected to 
 keep it, and the sale thus becomes coniplete.^ But if the 
 parties agree to a present transfer of the absolute title, with 
 the privilege of returning the thing, if it is not suitable or 
 satisfactory, then the transaction is one of sale and return, 
 and the absolute title passes immediately, subject to the 
 right to rescind the sale, and return the thing.* But the 
 character of such a transaction may be completely controlled 
 by special agreements, whatever may be the peculiar facts 
 of the case. If the parties expressly agree that the title 
 
 ' See post, §§ 204, 223. 
 
 2 Enlow o. Kleio, 79 Pa. St. 488, 490; Rose v. Story, 1 Barr, 190; 
 McCuUougli V. Porter, 4 Watts & S. 177 ; Clark v. Jack, 7 "Watts & S. 375 ; 
 Lehigh Co. ». Field, 8 Watts & S. 323; Beeker v. Smith, 9 Pa. St. 469; 
 Kowe V. Sharpe, 51 Pa. St. 346; Hunts. Wyman, 100 Mass. 198; Wart- 
 man V. Breed, 117 Mass. 18; Daudo t). Foulds, 105 Pa. St. 74; Chamber- 
 lain V. Smith, 44 Pa. St. 431; Wilson v. Stratton, 47 Me. 120; Elphick v. 
 Barnes, 5 C. P. Dlv. 321; Kahn v. Clabrunda, 50 Wis. 235. 
 
 3 See Moss w. Sweet, 16 Q. B. 493; Washington v. Johnson, 7 Humph. 
 468; Quinn v. Stout, 31 Mo. 160; Ray v. Thompson, 12 Cush. 181; John- 
 son 0. McLane, 7 Blackf. 501; Jameson v. Gregory, 4 Met. (Ky.) 363; 
 Fuller V. Buswell, 34 Vt. 108; Moore v. Piercy, 1 Jones (N. C), 131. 
 
 ^ McKinney v. Bradlee, 117 Mass. 321; Slutz v. Desenberg, 28 Ohio 
 St. 372; Mahler v. Schloss, 7 Daly, 291; Marsh v. Wickham, 14 Johns. 
 167; Dearborn v. Turner, 16 Me. 17; Buswell v. Bicknell, 17 Me. 344; 
 Holbrook V. Armstrong, 10 Me. 31; Perkins v. Douglass, 20 Me. 317; 
 Walkers. Blake, 37 Me. 373; Colton v. Wise, 7 Bradw. 395; Schlesinger 
 V. Siratton, 9 R. I. 578; Middlelon v. Stone, 111 Pa. St. 589. 
 
 5 
 
§ 6 DKFINITION, ESSENTIAL ELEMENTS OF SALES. [CH. 1. 
 
 shall or shall not pass upon the delivery of the thing, the 
 transaction will be a sale or bailment respectively. ^ But, 
 in the absence of such an express agreement, the intention 
 of the parties will govern the construction, as it is mani- 
 fested by the general terms of the contract. 
 
 § 6 . Sale distinguished from contract to manufacture 
 and return. — The cardinal test of a bailment, as already 
 stated, is whether the identical thing, which is delivered, is 
 to be returned. If it is to be returned, and not some equiva- 
 lent, the transaction is a bailment, it matters not how much, 
 the form of the thing may have been changed by the labor 
 of the transferee. Thus, the transaction is a bailment, if 
 leather is delivered and made into shoes, grain into meal or 
 flour, lumber into boards, wool or cotton into cloth, or cloth 
 into clothes, whenever the contract calls for the return of 
 the identical thing in its changed form.^ And the agree- 
 ment to pay a certain sum if the goods are not returned, 
 does not^er se change the transaction into a sale.^ 
 
 But if, in the delivery of the raw material to the manu- 
 facturer or artisan, the agreement does not call for the 
 return of the articles which were manufactured out of the 
 identical raw material which had been delivered, but merely 
 for articles of the kind described equal m value to the 
 raw material which had been delivered but made out of 
 any material of the same kind, then the transaction is not a 
 bailment, but an exchange or sale, according to the circum- 
 
 1 Coggill ». Hartford, etc., R. R. Co., 3 Gray, 545, 548; Crocker v. 
 GuUifer; 44 Me. 491. 
 
 2 Barker v. Roberts, 8 Greenl. 101; Schenck v. Sounders, 13 Gray, 37; 
 Mansfield v. Converse, 8 Allen, 182; Eldrldge «. Benson, 7 Gush 483; 
 BulkleyB. Andrews, 39 Conn. 70; Stephenson v. Ranney, 2 Up. Can. C. 
 P. 196; Isaac v. Andrews, 28 Up. Can. C. P. 40; Pierce v. Schenck, 3 Hill, 
 28; Mallory v. Willis, 4 N. Y. 76; Foster v. Pettibone, 7 N. Y. 433; 
 Ashby V. West, 3 Ind. 170; Irons v. Kentner, 51 Iowa, 88; Hyde v. Cook- 
 son, 21 Barb. 92; Brown v. Hitchcock, 28 Vt. 452. 
 
 3 Westcott V. Thompson, 18 N. Y. 363. 
 
 6 
 
CH. I.] DEFINITION, ESSENTIAL ELEMENTS OF SALES. § G 
 
 stances. 1 And the complications of a particular transaction 
 will not affect the result in the slightest. The single test, 
 given above, determines the result in every case. Thus, in 
 the case of Jenkins v. Eichelberger,^ the transaction was held 
 to be a sale and not a bailment, where hides were delivered 
 by a merchant to a tanner under ^ contract that they were 
 to be charged to the tanner at cost and a certain commis- 
 sion, and interest after a specified time ; and when tanned 
 the hides were to be returned to the merchant, to be sold 
 by him, who would, after deducting the cost, commission, 
 etc., pay the balance to the tanner: the first part of the 
 contract constituted a sale from the merchant to the tan- 
 ner ; while the second part constituted a consignment from 
 the tanner to the merchant. But in all these cases a 
 special agreement ' that the goods were to remain at the 
 owner's risk, would prevent the title from passing on de- 
 "livery, and as long as they were not appropriated by the 
 person to whom they were delivered. But" such an 
 agreement cannot change the transaction into a bailment, 
 as seems to be the ruling in several cases,^ as long as 
 the contract does not call for the return of the identical 
 things. 
 
 1 EwingD. French, 1 Blackf. 364; Smith ». Clark, 21 Wend. 83; 34 
 Am. Dec, 213; Hurd v. West, 7 Cow. 752; BufEum v. Merry, 3 Mass. 
 478; Chase D. Washburn, 1 Ohio St. 244; Carlisle v. Wallace, 12 Ind. 
 252; Bahilly v. Wilson, 3 Dill. 420; Eichardson v. Olmstead, 74 Dl. 213; 
 liaUey 17. Bensley, 87 111. 656; Grier v. Stout, 2 Bradw. 602; Jones v. 
 Kemp, 49JiIich. 9; Fishback v. Van Dusen, 33 Minn. Ill; Baker v. 
 Woodruff, 2 Barb. 520; Norton v. WoodrufE, 2 N. Y. 153; Tilt v. Silver- 
 thome, 11 Up. Can. Q. B. 619; Good ». Winslow, 4 Allen N. B. 241; 
 Johnston v. Brown, 37 Iowa, 200; Marsh ». Titus, 3 Hun, 560; McCabe 
 V. McKinstry, 6 Dill. 609; Benedict v. Ker, 29 Up. Can. C. P. 410; South 
 Australian Ins. Co. ■». Randall, L. K. 3 P. C. C. 101; Austin v. Selisfman, 
 21 Blatchf. 506; Jenkins ». Eichelberger, 4 Watts, 121 (28 Am. Dec. 691, 
 692). 
 
 2 4 Watts, 121 (28 Am. Dec. 691). 
 
 ' See Nelson v. Brown, 44 Iowa, 455; 53 Iowa, 655; Sexton v. Gra- 
 ham, 53 Iowa, 183; Ledyards. Hibbard, 48 Mich. 421 
 
 7 
 
§ 7 DEFINITION, ESSENTIAL ELEMENTS OF SALES. [CII. I. 
 
 § 7. Sale distinguished from depositum — Ware- 
 bouses and grain elevators. — A depositum, like every 
 other kind of bailment, requires the return of the identical 
 thing. In the ordinary deposit for safe keeping, there is 
 no doubt that the transaction is a bailment, for the identi- 
 cal thing is to be returned, and it does not matter much 
 what the thing may be.^ But where the identical thing is 
 not to be returned, but only an equivalent, the general rule 
 requires the transaction to be pronounced a sale.^ The 
 doubt has arisen in the application of the test to the de- 
 posit of grain in the elevators, with the understanding that 
 the grain will be deposited in the same bins with other 
 grain of the same quality and kind, and that the depositor 
 will be entitled on demand, not to the identical grain which 
 he has deposited, but to grain of a like quality and kind. 
 In accordance with the general rule here laid down, such a 
 transaction could not be anything else than a sale, certainly 
 not a bailment to the warehouse man ; and this is the ruling 
 of some of the courts.* But there is a tendency of late to 
 treat the transaction as the equivalent of a confusion of 
 goods, and to make all the depositors of grain tenants in 
 common of the whole bulk, while the warehouse man re- 
 mains a bailee.* But this is a very severe strain on the 
 
 1 Schindler v. Westover, 99 Ind. 396. See Lyon v. Lenon, 7 N. E. 
 Bep. 311; Ivesu. Hartley, 51 111. 520; Benedict «. Ker, 29 Up. Can. C. 
 P. 410, 412; Dean v. Lammers, 63 Wis. 331, 336; Bailey ». Bensley, 87 
 111. 556, 560; South Australian Ins. Co. v. Kandell, L. E. 8 P. C. 101, 107. 
 
 2 See generally Lonergan v. Stewart, 55 111. 45; Rahilly v. Wilson, 3 
 Dill. 420; Bankiu v. Mitchell, 1 Hannay N. B. 495; Isaac v. Andrews, 2 
 U. C. C. P. 40; Nelson v. Brown, 44 Iowa, 455; Johnson v. Brown, 37 
 Iowa, 200; Sexton v. Graham, 63 Iowa, 181; Ledyard v. Hibbard, 48 
 Mich. 421; Hughes v. Stanley, 45 Mich. 622; Jones v. Kemp, 49 Mich. 9; 
 Wilson V. Cooper, 10 Iowa, 565; Ives v. Hartley, 51 111. 520; Butterfleld 
 ■0. Lathrop 71 Pa. St. 226 ; Good v. Winslow, 4 Allen N. B. 241. 
 
 3 Chase v. Washburn, 1 Ohio St. 244 (59 Am. Dec. 623). 
 
 » See Gushing -a. Breed, 14 Allen, 376; German Nat. Bank ». Meadow- 
 craft, 4 Brad w. 630; Arthur ». Chicago, etc., Ry. Co., 61 Iowa, 648:Kice». 
 Nixon, 78 Ind. 97; Schindler v. Westover, 99 Ind. 395; Lyon v Lenon, 
 8 
 
CH. I.J DEFINITION, ESSENTIAL ELEMENTS OF SALES. § 8 
 
 principle, where it is carried to the length of holding that 
 the depositor of grain in an elevator is a temnt in com- 
 mon , not only with the other depositors who at that time 
 have grain in the elevator or as long as some of his grain 
 is still there,* but with every other person who might de- 
 posit grain in the elevator even after his grain had been 
 taken away in filling some order. In this latter case, there 
 never had been any confusion of goods, because the subse- 
 quent deposits were made when none of the grain of the 
 depositor in question was left in the elevator. The only 
 object of these later decisions seems to be to shield the ele- 
 vator proprietors from responsibility in case of destruction 
 or injury of the deposited grain. 
 
 § 8. Sale distinguished from consigniiieiit. — A con- 
 signment of goods to a factor or commission merchant is 
 a bailment and not a sale, although the object of the trans- 
 action is to sell the goods for the consignor, instead of re- 
 turning them. But the same principle is at work as in the 
 bailments, in which the identical things are to be returned, 
 since by the terms of the contract, the goods never pat^s 
 beyond the control of the consignor, except as to the con- 
 signee's lien for charges and advances, until the sales are 
 made, when the price takes the place of the goods, and is 
 held by the consignee subject to the consignor's orders. 
 And whenever the consignment is revoked, the identical 
 goods, so far as they have not been sold, are required to be 
 returned. A consignment, therefore, is a bailment and not 
 a sale, even though it is made under a del credere commis- 
 sion.^ Nor does the transaction become a sale, if the 
 
 106 Ind. 567; Broadwell v. Howard, 77 111. 305; Barker v. Bushnell, 75 
 111. 220; Sexton v. Graham, 63 Iowa, 181. 
 
 1 Inglebrlght v. Hammond, 19 Ohio, 337 ; Dole v. Olmstead, 36 III. 150 ; 
 41 111. 344; Young v. Miles, 20 Wis. 615; 23 Wis. 643. 
 
 2 Meldrum v. Snow, 9 Pick. 441 ; Audenried v. Betteley, 8 Allen, 302; 
 Walker v. Buttrick, 105 Mass. 237; Ayers v. Sleeper, 7 Met. 45; Brown 
 
 9 
 
§ 9 DEFINITION, ESSENTIAL ELEMENTS OF SALES. [CH. I. 
 
 .goods have been invoiced to the consignee at a certain 
 price,^ unless the fixing of the price is intended to be a 
 positive determination of the liability of the consignee, 
 irrespective of the price obtained by him in the sale of the 
 goods. ^ In the former case it is still a bailment, for the 
 fixing of the price may serve only as the value of the goods, 
 for the purpose of measuring damages in case of a failure 
 to account for the goods, or for the purpose of indicating 
 the minimum price for which the consignee may sell the 
 goods. In the latter case, the consignee is evidently the 
 primary debtor at all events, and hence he must have 
 acquired title to the goods, which would make the trans- 
 action a sale. Whenever the result of the transaction is 
 that the transferee is the primary debtor, even where the 
 title to the goods does not pass out of the consignor until 
 the sale, the sale of the goods by the consignee will neces- 
 sitate a previous transfer to the consignee, and the consign- 
 ment is thus changed into a sale.* 
 
 While the use of the word "consign" raises the pre- 
 sumption that the transaction is a consignment, it is not 
 conclusive ; for the context may indicate that the word was 
 used in the place of " assign." * 
 
 § 9. Sale distinguished from a lease or hiring. — A 
 
 lease or hiring is only a temporary transfer, and hence is 
 
 w. Holbrook, 4 Gray, 102 ; Weir Plow Co. v. Porter, 82 Mo. 23 ; Gooderham 
 V. Marlett, 14 U. C. Q. B. 228; Bayliss v. Davis, 47 Iowa, 340; Williams 
 V. Davis, 47 Iowa, 363 ; Boston & Maine E. R. Co. v. Warrior Mower Co., 
 76 Me. 251; Blood ». Palmer, 11 Me. 414; Selden ». Beale, SGreenl. 178; 
 Morse v. Stone, 5 Barb. 516; Conable «. Lynch, 45 Iowa, 84; Doddsc. 
 Durand, 5 U. C. Q. B. 623; Alexander v. Tomlinson, 40 Ark. 216, 218, 
 219. 
 
 ' Pam V. Vilmar, 64 How. Pr. 235. • 
 
 2 lu re Linforth, 4 Sawy. 374; Jordan v. Easter, 2 111. App. 73. 
 
 3 Mutter V. Wheeler, 2 Low. 346; Ex parte White, L. K. 6 Ch. 397; 
 Towle V. White, 21 Weekly Rep. 465. 
 
 * Schenck v. Saunders, 13 Gray, 37; Ditman v. Norman, 118 Mass. 
 319, 324 ; Reissner ». Oxley, 80 Ind. 580, 685. 
 10 
 
CH. I.] DEFIXITION, ESSENTIAL ELEMENTS OF SALES. § 9 
 
 a bailment. Where the transaction is an ordinary case of 
 hiring, its real character is not hard to recognize.^ But a 
 transaction, which is substantially a sale, cannot be changed 
 into a lease, merely by calling the periodical payments, 
 rent, if on the last payment the thing is to become the prop- 
 erty of the hirer. If, however, there is sksbonafide hiring, 
 with the privilege of purchase at a given price, over and 
 above the periodical payments, then the transaction does 
 not become a sale, until the additional sum is paid, or the 
 hirer has notified the owner of his intention to buy.^ Parol 
 evidence is admissible to show the real character of the 
 transaction, where it is at all involved in doubt. ^ 
 
 These questions have arisen lately on contracts for the 
 disposition of organs, pianos, sewing machines, etc., under 
 contracts which provide for the payment of periodical sums 
 as rent, and the thing is to become the property of the 
 other party on the payment of the last installment of rent. 
 The courts have uniformly held these contracts to be sales, 
 and not leases,* In some of the cases, the title is held to 
 pass immediately.^ But where the contract contains the 
 express stipulation, as most of them do, that the title shall 
 not pass until the last payment, the transaction is held 
 to be a conditional sale, the condition being precedent.* 
 
 1 See Smith v. Nlles, 20 Vt. 315. 
 
 2 Forest v. Nelson, 108 Pa. St. 481; Stadtfield v. Huntsman, 92 Pa. St. 
 .^3 (37 Am. Bep. 661, n. 664) ; Brunswick and Balke Co. o. Hoover, 95 Pa, 
 St. 508 (49 Am. Rep. 674) ; Edward's Appeal, 105 Pa. St. 103. 
 
 8 Domestic Sewing Maciime Co. v. Anderson, 23 Minn. 57; Singer 
 Sewing Machine Co. v. Holcomb, 40 Iowa, 33. 
 
 * See contra, Sumner v. Cottey, 71 Mo. 121. 
 
 s Greer 1). Church, 13 Bush, 480; March v. Wright, 46 111. 487; Lucas 
 V. Campbell 88 lU. 447 (31 Am. Eep. 81); Singer Mfg. Co. v. Cole, 4 
 Lea, 439 (40 Am. Rep. 21) ; Hefvey v. R. I. Locomotive Works, 93 U. S. 
 664; Price v. McCallister, 3 Grant Cas. 248. 
 
 « Sargent ». Gile, 8 N. H. 325; Kohlero. Hayes, 41 Cal. 456; Singer 
 Mfg. Co. V. Graham, 8 Or. 17 (34 Am. Eep. 67) ; Crista. Kleber, 79 Pa. 
 St. 290; Enlow». Klein, 79 Pa. St. 488; Goodell v. Farebrother, 12 R. I. 
 233; Carpenter v. Scott, 13' E. I. 474; Hine v. Roberts, 48 Conn. 267; 
 
 11 
 
§ 12 DEFINITION, ESSENTIAL ELKMENTS OF SALES. [CH. I. 
 
 The matter of conditional sales is more fully discussed else- 
 where.^ 
 
 § 10. Sale distinguished from mortgage. — A mortgage 
 is a conditional sale, made to secure the payment of a debt, 
 with the condition that the sale shall, on payment of the 
 debt, become void and the title revert to the vendor or mort- 
 gager. The title passes immediately subject to a reverter.^ 
 
 § 11. Sale distinguisbed from gift. — The sale is re- 
 quired to be supported by a valuable consideration. Hence 
 a transfer of personal property for the sake of love and af- 
 fection, or charity, is not a sale but a gift.' But this simi- 
 larity is to be observed, that, like a sale, a gift is only com- 
 plete and effectual when there has been a delivery. Without 
 delivery, the transaction is an executory contract, and being 
 without a valuable consideration cannot be enforced.* But, 
 in order that the transaction may be a sale, there need not 
 be a direct payment of money or promise to pay to the 
 transferrer of the goods. A gift whose acceptance im- 
 poses the burden of paying a sum of money to some one, 
 is essentially a sale, at least so far as the sum of money is 
 an adequate consideration.^ 
 
 § 12. Sale distinguished from exchange and barter. — 
 
 But, as generally defined, a sale not only requires to be sup- 
 ported by a valuable consideration ; but the consideration 
 
 Loomis». Bragg, 50 Conn. 228; Whitcomb v. Woodworth, 54 Vt. 544; 
 CoUender Co. v. Marshall, 57 Vt. 322 ; Gibbons v. Luke, 37 Hun, 577. 
 
 i See post, § 203. 
 
 = See post, §§ 221,224, for a fuller discussion. 
 
 3 Commonwealth v. Packard, 5 Gray, 101; Gray v. Burton, 55 N. Y. 
 68, 72; 2 Schouler Personal Prop., §§ 66, 57. 
 
 * Irons V. Smallpiece, 2 B. & Aid. 551; Champney v. Blanchard, 39 N. 
 Y. 116; Shower 1). Pilch, 4 Exch. 478; Power v. Cook, 4 Ir. C. L. 247; 
 Wing V. Merchant, 57 Me. 383; Douglass v. Douglass, 22 L. T. (n. s.) 
 127; Tenbrook v. Brown, 17 Ind. 410; Chadsey v. Lewis, 1 Gilm. 153, 155. 
 
 * See Bouvier Law Diet., Tit. Sale. 
 
 12 
 
CH. I.J DEFINITION, ESSENTIAL ELEMENTS OP SALES. § 12 
 
 mu'^t be a price in money. Although it has heen some- 
 times held that the sale must be a transfer for money, and 
 that every other transfer is an exchange or barter,^ the 
 better opinion is that the tr.insaction is still a sale, although 
 the transfer is made for something else than money, pro- 
 vided each article is transferred at an agreed or the market 
 value, so that the one thing is received in payment of the 
 price of the other. For example, a contract to deliver or 
 exchange thirty bushels of corn at twenty-five cents per 
 bushel, for ten bushels of wheat at seventy-five cents per 
 bushel, would be a sale, for the price of the corn would be 
 liquidated by the acceptance of the wheat. ^ But if one 
 thing is delivered in consideration of the receipt of some- 
 thing else, not money, and there is no agreed value at which 
 these things are to be exchanged, the transaction is not a 
 sale, but an exchange. The criterion in these Ciises is 
 whether there is a fixed price, as a determination of the 
 value at wh ch the things are to be exchanged. If there is 
 such a fixed price, the transaction is a sale ; but if there is 
 not, the transaction is an exchange.^ 
 
 But notwithstanding this distinction between sale and 
 exchange, the two transactions are so much alike in other 
 respects that they are governed by the same rules of law.^ 
 And it has been held in Massachusetts, and elsewhere, that 
 an exchange of intoxicating liquor for goods or labor was 
 
 ' See Benjamin on Sales, § 2. 
 
 2 Forsyth ». Jervls, 1 Stark. 437; Porter v. Talcott, 1 Cow. 359; Clark 
 ». Fairchild, 22 Wend. 576; Pickard ». McCormick, 11 Mich. 69; Herrick 
 V. Carter, 56 Barb. 41; Way «. Wakefield, 7 Vt. 228; Gunter ii. Lecky, 30 
 Ala. 591; Loomis v. Wainwright, 21 Vt. 520; Sheldon v. Cox, 3 Barn. & 
 C. 420; Hands v. Burton, 9 East, 349. 
 
 8 Harris ». Fowle, cited in 1 H. Bl. 287; Mitchell v. Gile, 12 N. H. 
 390; Vail v. Strong, 10 Vt. 465; Campbell ». Sewell, 1 Chitty Bep. 611; 
 Slayton ». McDonald, 73 Me. 50; Gunter v. Lecky, 30 Ala. 596; Fuller ». 
 Duren, 36 Ala. 73. 
 
 * Dowling V. McKenny, 124 Mass. 480; Eedfleld v. Legg, 38 N. Y. 
 212. 
 
 13 
 
§ 13 DEFINITION, ESSENTIAL ELEMENTS OF SALES. [CH. I. 
 
 within the statute prohibiting sales of liquor. ^ It is to be 
 expected, therefore, that when one speaks in general of 
 sales, exchanges or barters are also included. 
 
 § 13. Sale distinguished from assignment. — The term 
 " assignment" is one of generic signification, and includes 
 every species of transfer. Usually, the term is applied to 
 transfers, which have no special name, such as an assignment 
 for the benefit of creditors. And it is also used to indicate 
 transfers by means of some written instrument, as the as- 
 signment of a bill of lading or mortgage. But the term 
 also includes sales, whether oral or written. Sales are only 
 a species of assignment.^ 
 
 1 Commonwealth v. Clark, 14 Gray, 367; Mason v. Lothrop, 7 Gray, 
 355; Howard v. Harris, 8 Allen, 297; TJ. S. v. Wlttig, 2 Low, 466. But see 
 contra, Stevenson v. State, 65 Ind. 409. See also Massey v. State, 74 
 Ind. 368 ; Ex parte Beaty, 1 S. W. Rep. (Tex.) 451 ; Marmont v. State, 
 48 Ind. 21 ; State v. Mercer, 32 Iowa, 405; Kickart v. People, 79 111. 85. 
 
 2 See Ball v. Chadwick, 46 111. 31 ; Cowles v. Ricketts, 1 Iowa, 582, 
 585; Chase u. "Walters, 28 Iowa, 460; Highto. Sackett, 34 N. Y. 451; 1 
 Abbott's Law Diet. 96; Perrins v. Little, 1 Green, 248; Potters. Holland, 
 4 Blatchf. 210; 1 Bacon's Abr. 329. 
 
 14 
 
CHAPTER 11. 
 
 PARTIES. 
 
 Section 16. Who may be partifs to contract of sale. 
 
 17. Disa;bility of infants — Liability for necessaries. 
 
 18. Infant's contracts voidable, not void. 
 
 19. Ratification of infant's contracts. 
 
 20. Disaffirmance of sale by infant. 
 
 21. Lunatics and imbeciles. ^. ' 
 
 22. Effect of Insanity when unknown to other party. 
 
 23. Lunatic's contract for necessaries. r' 
 
 24. Ratification of lunatic's contracts. /Y 
 
 25. Contracts of drunken persons. '-' 
 
 26. The disability of all persons undey guardianship — Spend- 
 
 thrifts. 
 
 27. Disability of coverture — Contracts of married women. 
 
 28. Effect of marriage on ante nuptial contracts. 
 
 29. Exceptions to marriedjfomen's contractual disability. 
 
 30. Contracts of married "women with a separate estate. 
 
 § 16. Who may bC parties to contract of sale. — The 
 
 general rule is that any person has the capacity to buy 
 goods, and any one, who is owner of the goods, has the 
 capacity to sell them. But the law, for various reasons, 
 places certain persons under legal disability, and when they 
 are so disabled, their contracts of sale and of purchase are 
 either absolutely void, or voidable at the instance of the 
 party under disability. These legal disabilities will be re- 
 ferred to in the subsequent sections. 
 
 § 17. Disability of infants — liiability for necessa- 
 ries. — Persons under a certain age are called minors or 
 infants, and because of their immaturity of mind the law 
 takes away from them the power to make contracts, 
 except for necessaries. The age of majority in all of the 
 
 15 
 
§ 17 PARTIES. [CH. 11. 
 
 United States for males, and in most of the States for 
 females, iij twenty-one years, and this was the common-law 
 rule in England. But in some of the States, the majority 
 of females is placed by statute at eighteen.^ An infant's 
 contract for necessaries is binding upon him, so far that he 
 may be compelled to pay for their value; but he is not 
 bound for the contract price. His liability for necessaries 
 is rather imposed by the law, than the result of his contract.^ 
 To the question, what are necessaries, it may be replied, 
 that whatever in reason the infant needs for his main- 
 tenance, shelter, education and comfort, regard being had 
 to his means and social standing, would be held by the law 
 to be necessaries.^ And where the infant's means are con- 
 siderable, articles which are useful, but which are ordinarily 
 considered to be luxuries, unnecessaiy to the comfort of a 
 child, such as a watch, a horse, or a valet, etc., may, never- 
 theless, in special cases be treated as necessaries, for which 
 the infant will be liable on a quantum meruit.^ 
 
 But money, whether for pleasure or for business enter- 
 
 ' 1 Parsons' Contracts, 294; Bishop on Contracts, § 893; Cogelc. liaph, 
 24 Minn. 194. See Dent v. Cock, 65 Ga. 400. 
 
 2 Hyerw. Hyatt, 3 CranchC. C. 276; Robinson v. Weets, 56 Me. 102; 
 Stone V. Dennison, 13 Pick. 1; Earle v. Reed, 10 Met. 387; Gay v. Ballou, 
 
 4 Wend. 493; Commomvealtli v. Hantz, 2 Pa. 333; Hyman v. Cain, 3 
 Jones (N. C), HI; Boncliell ti. Clary, 3 Brev. 194; Morton v. Steward, 
 
 5 Bradw. 633. 
 
 " Burghart v. Angerstein, 6 C. & P. 690; Peters v. Fleming, 6 M. & W. 
 42; Ryder v. Wombwell, L. R.4 Ex. 32; Angel v. McLellan, 16 Mass. 28; 
 Hoyt V. Casey, 114 Mass. 397; Strong u. Foote, 42 Conn. 203; Wailing v. 
 Toll, 9 Jolins. 141; Gay v. Ballou, 4 Wend. 403; Werner's Appeal, 10 
 Norris (Pa.), 222; Anderson v. Smith, 33 Md. 465. 
 
 ■• " From the earliest time down to the present, the word ' necessaries ' 
 was not confined in its strict sense to such articles as were necessary to 
 the support of life, but extended to articles fit to maintain the particular 
 person in the state, station and degree in lite in which he is." Parke, 
 B., in Pertes v. Fleming, 6 M. & W. 46; BeroUes B.'fiamsay, Holt N. P. 
 77; Hart v. Prater, 1 Jur. 623; Hands v. Slaney, 8 T. R. 578; Brooker v. 
 Scott, 11 M. & W. 67; Merriam u. Cunningham, 11 Cush. 40 ; Davis ». 
 Caldwell, 12 Cush. 512. 
 
 16 
 
CH. II. J PARTIES. § 18 
 
 prises, is never a necessary, and therefore one who lends 
 money to an infant cannot recover it as a necessary even 
 though the money be afterwards spent for the necessaries.^ 
 So, also, will goods, furnished to an infant to carry on some 
 mercantile or other business, not be considered necessaries, 
 whose value can be recovered of the infant.^ But where 
 the infant is in charge of his property, under the law, it is 
 generally held that he is so far relieved of his disability as 
 to be able to contract for whatever is needed in the care 
 and management of his property. Ordinarily the guardian 
 would be authorized to make such contracts in his behalf.' 
 But in no case can a tradesman recover of an infant for 
 necessaries, when the infant is already supplied with them 
 from some other source ; the tradesman always acts at his 
 peril in such cases, if he fails to make inquiries after the 
 condition of the infant.* 
 
 § 18. Infant's contracts voidable, not void. — Since the 
 disability is imposed upon the infant for his own benefit and 
 
 1 Darbe v. Boucher, 1 Salt. 279 ; Earle v. Peal, 1 Salk. 386 ; s. c. 10 
 Mod. 67; Randall «. Sweet, 1 Denio, 460; Price v. Sanders, 60 lud. 310. 
 But If the Infant requests a third person to pay for the necessaries he 
 has already bought, or is about to buy, he is obliged to repay the money 
 so expended. Clark v. Leslie, 5 Esp. 28; Swift v. Bennett, 10 Cush. 436 ; 
 Conn V. Coburn, 7 N. H. 368; Smith v. Oliphant, 2 Sandf. 806; Halne v. 
 Torrant, 2 Hill (S. C), 400. 
 
 2 Warwick v. Bruce, 2 M. & S. 205; Whywall v. Champion, 2 Stra. 
 1083; Dilk v. Keighley, 2 Esp. 480; Mason v. Wright, 13 Met. 306; Smith 
 i;. Kelley, 13 Met. 309; Lowe v. Griffith, I Scott, 458; Decell v. Lewen- 
 thal, 57 Miss. 331. 
 
 8 Hall V. Butterfleld, 59 N. H. 354; Bartlett v. Bailey, 59 N. H. 408; 
 Eundell v. Keeler, 7 Watts, 237 ; Watson v. Hensel, 7 Watts, 344 ; Tupper 
 ■u. Caldwell, 12 Met. 559; Price v. Sanders, 60 Ind. 310; Mathes v. 
 Bobschuetz, 72 HI. 438; Dillon v. Bowles, 77 Mo. 603; Epperson v. 
 Nugent, 57 Miss. 45; Chapman v. Hughes, 61 Miss. 339 ; HufE v. Bournell, 
 48 Ga. 338. 
 
 « Barnes v. Toye, 13 Q. B. D. 410; Story v. Pery, 4 C. & P. 526; Cook 
 ». Beaton, 3 C. & P. 114; Hoyt «. Casey, 114 Mass. 397; Johnson v. 
 Lines, 6 Watts & S. 80 ; Kraker v. Byrum, 13 Rich. 163 ; Nicholson v. 
 Wilborn, 13 Ga. 467; Nichol v. Steger, 6 Lea, 393. 
 
 2 17 
 
§ 18 PARTIES. [CH. II. 
 
 protection, and not in pursuance of any public policy, his 
 contracts of any kind, whether they be under seal or 
 parol, with the exception of those for necessaries, ]ust ex- 
 plained, are not absolutely void, but only voidable at his elec- 
 tion, and may be enforced against the adult party.^ It has 
 been held that when a contract is clearly prejudicial to the 
 interests of the infant, it is absolutely void.* But the 
 authorities are not unanimous, many holding that all the 
 infant's contracts are voidable only,^ and perhaps the only 
 foundation for the doctrine that the infant's contracts may 
 be held to be void, when clearly prejudicial to him, is that 
 the courts will during infancy avoid the contract, and 
 secure a restitution of the property parted with under the 
 contract, whenever such intervention is absolutely neces- 
 sary for the infant's protection. 
 
 It is generally held that an infant's power of attorney 
 
 1 Bruce v. Warwick, 6 Taunt. 118; Warwick v. Bruce, 2 M. & S. 205; 
 Holt V. Clarencieux, 2 Stra. 937; Nightingale ». Withington, 15 Mass. 
 272; Thompsons. Hamilton, 12 Pick. 425; Irvine v. Irvine, 9 Wall. 617; 
 Baker ». Lovett, 6 Mass. 78; Edgerton v. Wolf, 6 Gray, 453; Judkins v. 
 Walker, 17 Me. 38 ; Thomas v. Dike, 11 Vt. 273 ; Hoxie v. Lincoln, 25 Vt. 
 206; Kendall v. Lawrence, 22 Pick. 540; Hunt v. Peake, 5 Cow. 475; 
 Willard v. Stone, 7 Cow. 22; Bool v. Mix, 17 Wend. 119; Wallace v. 
 Lewis, 4 Harr. (Del. J 75; Allen v. Poole, 54 Miss. 323; Haynes v. Slack, 
 32 Miss. 193; Bingham B. Barley, 55 Tex. 281; Chapman v. Chapman, 
 13 Ind. 396; Harrod v. Myers, 21 Ark. 592; Ferguson v. Bell, 17 
 Mo. 347; Lowe v. Sinklear, 27 Mo. 308; West v. Penny, 16 Ala. 186; 
 Eureka Co. ■«. Edwards, 71 Ala. 248 ; Francis v. Felmlt, 4 Dev. & Bat. 498 ; 
 Mustard v. Wohlford, 15 Gratt. 329 ; Jenkins v. Jenkins, 12 Iowa, 195. 
 
 2 Lumsden's Case, 4 Ch. Ap. 31; Robinson v. Weeks, 56 Me. 102; 
 Olivers. Houdlet, 13 Mass. 237; Owen v. Long, 112 Mass. 403; Swafford 
 V. Ferguson, 3 Lea, 292; French v. McAndrew, 61 Miss. 187; Eeg. v. 
 Lord, 12 Q. B. 757; Fisher v. Mowbray, 8 East, 330. 
 
 ' Hyer V. Hyatt, 3 Cranch C. C. 276; Fetrowu. Wideman, 40 Ind. 148; 
 ■Flexner v. Dickerson, 72 Ala. 318. It has been held that an infant's con- 
 tract of suretyship is absolutely void, because it cannot possibly be 
 beneficial to him. Maples v. Wrightman, 4 Conn. 376.. But it has been 
 decided differently in the other courts. Owen v. Long, 112 Mass. 403; 
 Williams v. Harrison, 11 S. C. 412; Hamer b. Dipple, 31 Ohio St. 72; 
 Fetrow v. Wideman, 40 Ind. 148. 
 18 
 
CH. II. J PARTIES. § 19 
 
 under seal is absolutely void. ^ And there are some author- 
 ities which deny that the infant can appoint an agent for 
 any purpose, all his acts by his agent being not merely 
 voidable, but absolutely void.'* But, perhaps, the weight 
 of authority is in favor of conceding to the infant the same 
 measure of power to act by an agent, as by himself, his 
 powers of attorney being held to be voidable only and not 
 void. And this doctrine has been frequently applied to the 
 signing of promissory notes and other commercial paper.^ 
 
 § 19. Ratification of infant's contracts. — The contract 
 made by an infant, being voidable, may be ratified by him 
 and become a binding contract when he becomes of age. 
 After ratification, the contract will be as valid a contract, 
 and of the same legal character, as if it had been originally 
 executed by an adult, and inures to the benefit of every 
 subsequent holder.* It has been held that a ratification will 
 not validate a contract and rebut the defense of infancy in 
 an action on the contract, unless it is made before the action 
 was brought ; ^ but this view has been severely criticised, 
 and it is believed that in this country a ratification will re- 
 move the defect whenever it is made.^ 
 
 1 Poof V. Stafford, 7 Cow. 179 ; Waples v. Hastings, 3 Harr. 40.3 ; 
 Wambole v. Foote, 2 Dak. 1. 
 
 2 Thomas v. Roberts, 16 M. &W. 778; Robbins v. Mount, i Bob. (N. 
 Y.) 553; Armitage v. Wildoe, 36 Mich. 124; Tapley v. McGee, 6 Ind. 56; 
 Trueblood v. Trueblood, 8 Ind. 195; Flexner v. Dickerson, 72 Ala. 318. 
 
 " Whitney v. Dutch, 14 Mass. 457; Towle v. Dresser, 73 Me. 252; Pot- 
 tenger v. Steuart, 3 Harr. & J. 347; Hall v. Jones, 21 Md. 439; Belton v. 
 Briggs, 4 Des. 465; Alsworth v. Cordiz, 31 Miss. 32; Ward v. The Little 
 Red, 8 Mo. 358; Hastings v. DoUarhide, 24 Cal. 195. 
 
 * Hunt V. Massey, 5 Barn. & Ad. 902; Lawson v. Lovejoy, 8 Greenl. 
 405; Reed v. Batchelder, 1 Met. 559; Goodsell v. Myers, 3 Wend. 479; 
 Edgerly v. Shaw, 5 Foster (N. H.), 514; Cheshire o. Barrett, 4 McCord, 
 241; Little V. Duncan, 9 Rich. 55; West v. Penny, 16 Ala. 186; King ». 
 Jamison, 66 Mo. 498. 
 
 5 Thornton v. Illingworth, 2 Barn. & C. 824. 
 
 « Parsons' N. B. 72. But see Ford v. Phillips, 1 Pick. 202; Thing v. 
 Libby, 16 Me. 55; Merriam v. Wilkins, 6 N. H. 432. 
 
 19 
 
§ 19 PARTIES. [CH. II. 
 
 It may be generally stated that no mere acknowledgment 
 of the contract will amount to a ratification of an executory 
 contract,^ nor would part payment,^ nor a submission to 
 arbitration, unless the award has been rendered.^ Noth- 
 ing short of a new promise to pay amounts to a ratifica- 
 tion. But there need not be any formal promise. Any 
 words expressing or implying a promise will suffice.* 
 
 It is also held that, while mere acquiescence in the sale 
 will not work a ratification,^ if the infant retains and en- 
 joys the use of the thing for an unreasonable time or sells 
 it after reaching majority he will be held to have ratified 
 the purchase.* But this is not a universal rule, there being 
 cases in which is held that a mere length of user will not 
 amount to a ratification.^ 
 
 No new consideration is needed,^ but where the promise 
 
 1 Smith V. Mayo, 9 Mass. 62; Ford v. Phillips, 1 Pick. 202; Thompson 
 V. Lay, 4 Pick. 48; Proctor v. Sears, 4 Allen, 95; Hale v. Gerrish, 8 N. 
 H. 374 ; Wilcox c.Eoath, 12 Conn. 550; Dunlap v. Hale, 2 Jones (N. C), 
 381; Armfleldu. Tate, 7 Ire. 258; Conklin ». Ogborn, 7 Ind. 553; Alex- 
 ander V. Hutcheson, 2 Hawks, 535 ; Reed u. Boshears, 4 Sneed, 118 ; 
 Thrupp V. Fielder, 2 Esp. 628; Benham v. Bishop, 9 Conn. 380; Whitney 
 V. Dutch, 14 Mass. 460. 
 
 2 Smith V. Mayo, 9 Mass. 62; Eobbins v. Eaton, 10 N. H. 661; Catlin 
 V. Haddox, 49 Conn. 492 ; Hinely v. Margaritz, 3 Barr. 428. 
 
 3 Benham «. Bishop, 9 Conn, 330; Barnaby v. Barnaby, 1 Pick. 221. 
 
 ' Hartley v. Wharton, 11 Ad. & El. 93; Bobs v. Hansley, 2 Bailey, 114; 
 Whitney v. Dutch, 14 Mass. 460; Wright v. Steele, 2 N. H. 51; Owis v. 
 Kimball, 3 N. H. 314; Martin v. Mayo, 10 Mass. 137. 
 
 " Boody V. McKenny, 23 Me. 617, 525. 
 
 6 Boyden v. Boyden, 9 Met. 519; Eubanks v. Peat, 2 Bailey, 497; Law- 
 son V. Lovejoy, 18 Greenl. 405; Cheshire v. Barrett, 4 McCord, 241; 
 Alexanders. Heriot, 1 Bailey Eq. 223; Aldrich v. Grimes, 10 N. H. 194; 
 Philpot tt. Sandwich Mfg. Co.. 18 Neb. 54; Robinson v. Hoskins, 14 
 Bush, 393; Boody v. McKenny, 23 Me. 517; Deason v. Boyd, 1 Dana, 45; 
 But see Henry v. Root, 33 N. Y. 626; Tarr v. Sumner, 12 Vt. 28. 
 
 ' Whitcomb «. Joslyn, 51 Vt. 79 (31 Am. Rep. 678). 
 
 8 Smith V. Kelly, 13 Met. 309; OwiS v. Kimball, 3 N. H. 314; Hoit v. 
 Underbill, 10 N. H. 220; Goodsell v. Myers, 3 Wend. 479; Gay v. Ballou, 
 4 Wend. 419 ; Millard v. Hewlett, 19 Wend. 301 ; Turner v. Gaither, 83 
 N. t!. 357. 
 
 20 
 
CH. II. j PARTIES. § 20 
 
 to pay is coupled with a condition, the condition must be 
 performed before the ratification is complete.^ In En- 
 gland and some of the States a written ratification is re- 
 quired by statute,^ but in the absence of a statute, the 
 ratification need not be in writing; it may be, and usually 
 is, by parol, and of the most informal character.^ 
 
 And ignorance of his right to disaffirm will not alter the 
 binding effect of his ratification. Ignorantia legis non ex- 
 cusat.* 
 
 § 20. Disaffirmance of sale by infant. — Where an in- 
 fant has made a sale of goods, it has always been a matter 
 of doubt, whether he would have to restore the property or 
 other thing of value which he has received in consideration 
 of the sale, before he could rescind the sale. It is held in 
 some of the cases that if he has still the possession of the 
 consideration, or it is within his control, he is obliged to 
 tender it to the buyer before he can rescind the sale ; other- 
 wise not." But there are many cases in which the question 
 is not definitely settled, but in which it appears to be 
 held that the consideration must be returned in any case. 
 Certainly the general rule is, that the consideration 
 must be returned, before the sale can be rescinded.* The 
 
 ' Cole V. Saxby, 3 Esp. 159; Davies v. Smith, 4 Esp. 36; Thompson v. 
 Lay, 4 Pick. 48; Proctor v. Sears, i Allen, 95; Everson v. Carpenter, 17 
 Wend. 419; Chandler v. Glover, 32 Pa. St. 509. 
 
 2Thurlow». Gilmore, 40 Me. 378; Stern u. Freeman, 4 Met. (Ky.) 
 309. 
 
 s Martin v. Mayo, 10 Mass. 137; West v. Penny, 16 Ala. 186; Reed v. 
 Boshears, 4 Sneed, 118. 
 
 * Morse V. Wheeler, 4 Allen, 570; Anderson v. Loward, 40 Ohio St. 
 325; Ring v. Jamison, 2 Mo. App. 584; s. c. 66 Mo. 424; Taft o. Ser- 
 geant, 18 Barb. 320. 
 
 ' Eureka Co. v. Edwards, 71 Ala. 248 (46 Am. Rep. 314) ; Heath v. 
 Stevens, 48 N. H. 251; Halle. Butterfield, 59 N. H. 354 (47 Am. Rep. 
 209) ; Bartlettv. Bailey, 59 N. H. 408. 
 
 ' Carr v. Clough, 26 N. H. 280 (59 Am. Dec. 345, 349) ; Farrti. Sumner, 
 12 Vt. 28 (36 Am. Dec. 327) ; Taft v. Pike, 14 Vt. 405; Price v. Farman, 
 
 21 
 
§ 21 PARTIES. [CH. II. 
 
 sale may be disaffirmed during minority, as well as after 
 majority.^ 
 
 § 21. liuuatics and imbeciles. — According to the early 
 English law, a man was not allowed to stultify himself by 
 alleging his own lunacy or idiocy in defense of an action on 
 his contract."^ But this rule of the common law has been 
 everywhere repudiated,^ and the contract of a person, suf- 
 fering from any form of dementia, is ordinarily held to be 
 voidable.* If the lunatic has, by an inquisition of lunacy, 
 been placed in charge of a committee or guardian, the judg- 
 ment of lunacy is by many of the authorities held to be 
 conclusive upon all parties, and that the contracts of such 
 a lunatic are void, and not voidable.^ But other authori- 
 
 27 Vt. 268; Mannings. Johnson, 26 Ala. 446; Bingham v. Bailey, 55 Tex. 
 381 (+0 Am. Rep. 801); Badger t). Phinney, 15 Mass. 359; Kitchen v. Lee, 
 11 Paige, 107. 
 
 1 Shipman v. Horton, 17 Conn. 481; StafCord v. Root, 9 Cow. 626; 
 Chapin v. Shafer, 49 N. Y. 407; Myers v. Saunders, 7 Dana, 506; Carr v. 
 Clough, 26 N. H. 280; Towle v. Dresser, 73 Me. 252; Bool v. Mix, 17 
 Wend. 119. 
 
 ' Beverley's Case, 4 Rep. 126; Stroud v. Marshall, Ore. EUz. 398; 1 
 Parsons on Contracts, 383. 
 
 ' Thornton v. Appletou, 29 Me. 298 ; Mitchell v. Kingman, 6 Pick. 431 ; 
 Seaver v. Phelps, 11 Pick. 304 ; Grant v. Thompson, 4 Conn. 203; Lang ®. 
 Whidden, 2 N. H. 435; Rice v. Pelt, 15 Johns. 603; Bensell v. Chancellor, 
 5 "Whart. 371; Turner v, Rusk, 53 Md. 65; Bai:ew v. Clark, 2 Ire. 23; 
 Folson V. Garner, 15 Mo. 494; Webster v. Woodford, 3 Day, 90. 
 
 * Arnolds. Richmond, Iron Works, 1 Gray, 434; Gibson v. Soper, 6 
 Gray, 279; AUis v. Billings, 6 Met. 415; Jackson v. Gumaer, 2 Cow. 552; 
 Moore ■«. Hershey, 9 Norris (Pa.), 196; Turner v. Rusk, 53 Md. 65; Mc- 
 Clain V. Davis, 77 Ind. 419; N. W. Mut. Ins. Co. v. Blankenship, 94 Ind. 
 535; Elston v. Jasper, 45 Tex. 409; Campbell v. Kuhn, 45 Mich. 531; 
 Allen V. Berryhill, 27 Iowa, 534; Halley v. Troester, 72 Mo. 73. 
 
 ' Nichol V. Thomas, 53 Ind. 42; Freed i). Brown, 55 Ind. 310; Pearl v. 
 McDowell, 3 J. J. Marsh. 658; Mohr v. Tulip, 40 Wis. 66; Griswold ti. 
 Butler, 3 Conn. 227; Fitzhugh v. Wilcox, 12 Barb. 235; Wadsworth v. 
 Sharpsteen, 4 Seld. 388; ImhofE v. Whitmer, 7 Casey (Pa.), 243; Elston 
 V. Jasper, 45 Tex. 409. See Van Deusen v. Sweet, 51 N. Y. 378; Allen v. 
 Allen, 9 Fost. (N. H.) 106; Edwards v. Davenport, 20 Fed. Rep. 756; s. 
 c. 4 McCrary, 34. 
 22 
 
CH. II. J PARTIES. § 21 
 
 ties, declare the judgment of lunacy to be only 'prima facie 
 evidence of lunacy, except as to those who were parties to 
 the inquisition, and hold the contracts of one, who has been 
 thus declared a lunatic, to be only voidable. ^ 
 
 Mere weakness of mind, or want of business capacity, will 
 not constitute such a dementia, as will in the absence of 
 fraud affect the validity of a contract.^ Nor will every 
 monomania,' nor even every general insanity,* necessarily 
 a,ffect the capacity of a person to enter into a lawful con- 
 tract.^ In order that insanity may constitute a good defense 
 to an action on a contract, the derangement of the mind 
 must be of sucl^a character, and so great, as that the per- 
 son so afflicted is unable to comprehend the subject of the 
 contract or appreciate its nature and probable consequences.^ 
 But where the monomania affects his understanding of the 
 business transaction, the fact that he is otherwise of sound 
 
 1 Little ». Little, 13 Gray, 264; Hart v. L»eamer, 6 Wend. 497; Jacobs 
 •0. Richards, 18 Beav. 300; Yanger v. Skinner, 1 McCart. 389; Parker v. 
 Davis, 8 Jones (N. C), 460; Hopson ». Boyd, 6 B. Mon. 296. 
 
 2 Farnum v. Brooks, 9 Pick. 212; Osmond v. Fltzroy, 3 P. Wms. 129; 
 Stewart ». Lispenard, 26 Wend. 299; Lawrence v. Willis, 75 N. C. 471; 
 Lewis v. Pead, 1 Ves. jr. 19. 
 
 ' Surges V. Pollock, 53 Iowa, 273; West v. Eussell, 48 Mich. 74; 
 Boyce v. Smith, 9 Gratt. 704; Lozear«. Shields, 8 C. E. Green, 509. 
 
 < Searl v. Galbraith, 73 111. 269. 
 
 * It follows that those who are merely deaf and dumb, deaf-mutes, 
 are not incapacitated on account of these physical disabilities, if 
 they are provided with some other means of manifesting their assent. 
 Brown ». Brown, 3 Conn. 299; Brower v. Fisher, 4 Johns. Ch. 441 ; 
 Barnett v. Barnett, 1 Jones Eq. 221; Christmas v. Mitchell, 5 Ire. Eq. 
 535. 
 
 ' Hovey v. Hobson, 55 Me. 256; Hovey v. Chase, 52 Me. 304; Somes 
 •». Skinner, 16 Mass. 348; Farnam v. Brooks, 9 Pick. 212; Bondu. Bond, 
 7 Allen, 1; Brown v. Brown, 108 Mass. 386; Dennett o. Dennett, 44 N. H- 
 jiSl; Odelli). Buck, 21 Wend. 142; Lozearu. Shields, 8 C. E. Green, 509; 
 Smith ». Beatty, 2 Ired. Eq. 456 ; Hill ». Day, 7 Stew. Ch. 150; Sieuon v. 
 Wilson, 3 Edw. Ch. 36; Edwards v. Davenport, 20 Fed Rep. 756; s. c. 
 4 McCrary, 34; Smith v. Elliott, 1 Pat. & H. 307; Musselman v. Cravens, 
 47 Ind. 1; Miller v. Craig, 36 111. 109; Henderson ■o. McGregor, 30 Wis. 
 78; Speers v. Sewell, 4 Bush, 239. 
 
 23 
 
§ 22 PARTIES. [CH. II. 
 
 mind will not prevent the avoidance of the contract on the 
 ground of insanity.^ 
 
 § 22. ££Cect of insanity, when unknown to other 
 party. — It has been very curiously and anomalously held, 
 in many cases, both in England and in this country, that 
 where the party, dealing with the lunatic, is ignorant of his 
 insanity, does not take advantage of him, acts in good faith 
 in every respect, and there was nothing in the actions of 
 the insane person to arouse the suspicions of any reason- 
 ably observant person, the contract cannot be avoided by 
 the lunatic.^ 
 
 But it is certainly an anomalous doctrin^that the lunatic 
 is bound by his contract, if the other contracting party was 
 ignorant of his lunacy. Since his capacity depends upon 
 his own mental condition, and the law, declaring the lu- 
 natic to be incapable of making a binding contract, is 
 enacted for his protection against his own acts, it is difficult 
 to see on what principle his liability can be made to de- 
 pend upon the ignorance or knowledge of the other party. 
 It would seem to be a better rule that a lunatic's contract 
 is voidable, whether the other party is ignorant of, or ac- 
 quainted with his mental condition, and such has been held 
 to be the proper rule in the cases cited below.* 
 
 1 Eiggs V. Am. Tract Soc, 95 N. Y, 503. 
 
 2 Paxon, J., iu Moore v. Hershey, 90 Pa. St. 196. See, also, to same 
 general effect, that lunacy is no defense, where it is unknown. Molton 
 V. Cameron, i Exch. 17; Elliott v. lace, 7 DeG. M. & G. 478; Dane v. 
 Kirkall, 8 C. & P. 670; Brown v. Todrell, 3 C. & P. 30; Loomis v. 
 Spencer, 2 Paige, 153 ; Mutual Life Ins. Co. v. Hunt, 79 N. Y. 541 ; Matthie- 
 son V. McMahan, 38 N. J. 536; Beals v. Shee, 10 Pa. St. 56; Lancaster 
 Co. Bk.u. Moore, 78 Pa. St. 407; Wilder i). Weakley, 34 Ind. 181 ; Behreus 
 V. McKenzie, 23 Iowa, 333; N. W. Mut. Ins. Co. v. Blankenship, 94 Ind. 
 535; Copenrath v. Kienby, 83 Ind. 18; Eiggan v. Green, 80 N. C. 236. 
 
 3 Sentance v. Poole, 3 C. & P. 1 ; Seaver». Phelps, 11 Pick. 304; Hovey 
 V. Hobson, 53 Me. 451; Sogers v. Blackwell, 49 Mich. 192; Van Patton 
 V. Beals, 46 Iowa, 63 ; Edwards v. Davenport, 20 Fed. Rep. 756 ; s. c. 4 
 McCrary, 34. 
 
 24 
 
CH. 11.] PARTIES. § 25 
 
 § 23. liunatic's contracts for necessaries. — Like the 
 infant, the lunatic has the power to contract for necessaries, 
 not only for himself, but also for his dependent family ; 
 or, rather, the law permits whoever furnishes the lunatic 
 and his family with necessaries to recover their value ; and 
 the lunatic's contract for necessaries, will be enforcible to 
 the extent of their actual value. ^ As in the case of in- 
 fants, what are to be included in necessaries can only be 
 determined by a consideration of what is fitting for one 
 having the means and social standing of the lunatic.^ 
 
 § 24. Ratification of lunatic's contracts. — Since the 
 contracts of the insane person are only voidable, not void, 
 they may be ratified or disaflarmed by the lunatic, either 
 during a lucid interval or whenever he is permanently re- 
 stored to sanity.^ Or they may be ratified or disaffirmed 
 by the committee or guardian, during his insanity,* or in 
 the event of his death by his personal representatives.^ 
 
 § 25. The contracts of drunken persons. — Drunken- 
 ness is, in legal contemplation, an aberration of mind, sim- 
 
 1 Stedman v. Hart, 1 Kay, 607; Baxters. Portsmouth, 5 B. & C. 170 (2 
 C. & P. 178) ; In re Weaver, 21 Ch. D. 615; Bead v. Legard, 6 Exch. 636; 
 Davidson v. Wood, 1 De G. J. & S. 465; McCuUis v. Bartlett, 8 N. H. 
 569; La Eue v. Gilkyson, 4 Pa. St. 375; Richardson ij. Strong, 13 Ired. 
 106 ; Pearl b. McDovrell, 3 J. J. Marsh. 658 ; Fitzgerald v. Beed, 9 Smed. 
 & M. 94; McCormick v. Littler, 85 111. 62; Darby v. Cabanne, 1 Mo. 
 App. 126 ; Van Patton ». Marks, 46 Iowa, 68. 
 
 2 Baxters. Portsmouth, 7 Dow. & Ry. 614 (2 C. &P. 178). In Williams 
 ». Wentworth, 5Beav. 325, a lunatic's contracts for the repair or pres- 
 ervation of his estate were held to be binding upon him. See Surles v. 
 Pipkin, 69 N. C. 513. 
 
 3 Arnold v. Richmond Iron Works, 1 Gray, 434 ; Gibson v. Soper, 6 
 Gray, 279; Allis v. Billings, 6 Met. 415; Turner u. Rusk, 53 Md. 65; N. 
 W. Mut. Fire Ins. Co. v. Blankenship, 94 Ind. 535; Elston v. Jasper, 4S 
 Tex. 409. 
 
 * Moore v, Hershey, 90 Pa. St. 196; McClain v. Davis, 77 Ind. 419; 
 Hailey v. Froester, 72 Mo. 73. 
 
 ' Campbell ®. Kuhn, 45 Mich. 513; SchufE u. Ransom, 79 Ind. 458. 
 
 25 
 
§ 25 PAKTIES. [CH. II. 
 
 ilar in its effect upon the reasoning faculitieS as temporary 
 insanity. Hence we find that the legal effect of contracts, 
 made by one in a state of intoxication, is affected in the 
 same way by the intoxication of the contractor, as they are 
 by his insanity. His contracts will not be invalidated by 
 the fact that he was under the influence of intoxicating 
 liquor when he made them, if he was not bereft of his 
 reason. 1 The intoxication must be so great that the per- 
 son cannot comprehend the nature of the business, or the 
 character of the instrument he is signing.^ Even an 
 habitual drunkard's contracts are valid, if they are made 
 when he is not so intoxicated that he cannot understand the 
 business.' But where a disadvantageous contract is made 
 with one whose mind has become enfeebled by habitual 
 drunkenness, and the other party knew of his mental 
 weakness, the courts will presume fraud, and avoid the 
 contract, in the a'bsence of counter proof of fair dealing.^ 
 It is not necessary that the drunkenness of the person be 
 procured by the other contracting party, in order that the 
 contract may for this reason be avoided.^ But if it was 
 
 1 Caulkins v. Fry, 35 Conn. 170; Eeinicker v. Smith, 2 Harr. & J. 421; 
 Woods V. Pindal, Wright (Ohio), 507; Heniy ». Eitenour, 31 Ind. 136; 
 Belcher v. Belcher, 10 Yerg. 121; Morris v. Nixon, 7 Humph. 579; Cav- 
 ender v. Waddingham, 5 Mo. App. 457; Reynolds v. Dechaums, 24 Tex. 
 174; Pickett v. Sutter, 5 Cal. 412. 
 
 " Pitt V. Smith, 3 Camp. 33 ; Molton v. Camroux, 2 Exch. 487; 4 Exch. 
 17; Gore v. Gibson, 13 M. & W. 623; Wigglesworth v. Steers, 1 Hening 
 & M. 154; Clark v. Caldwell, 6 Watts, 139; JennessB. Howard, 6 Blackf. 
 240; Dulaney v. Green, 4 Harr. 285; Drummond v. Hooper, 4 Harr. 327; 
 Johns 17. Fritchey, 39 Md. 258; Wilson v. Briggs, 7 Watts & S. Ill; 
 Berkley v. Cannon, 4 Kich. 136; Williams v. Inabnet, 1 Bailey, 343; Cum- 
 mingsi;. Henry, 10 Ind. 109; Wyck v. Brasher, 81 N. Y. 260; Bates v. 
 Ball, 72 HI. 108; Schramm v. O'Connor, 98 111. 539. 
 
 3 Bitter's Appeal, 9 Smith (Pa,), 9; Miller v. Finley, 26 Mich. 249. 
 
 * Holland v. Barnes, 53 Ala. 83'. In this case a note based on insuffi- 
 cient consideration was thus obtained from one who was partially intox- 
 icated and enfeebled by habitual drinking. 
 
 5 Wigglesworth «. Steers, IHen. & M. 70; E^eeman v. Staats. 4Halst. 
 Ch. 814; French v. French, 8 Ohio, 214; Donelson v. Posey, 13 Ala. 752. 
 20 
 
CH. II. j PAETIES. § 27 
 
 SO procured, with the intention to take advantage of him, 
 it would be a case of fraud, and the contract could be 
 avoided, although the intoxication did not deprive him of 
 his mental faculties completely.^ Indeed, any undue advan- 
 tage taken of a man's intoxication will avoid a contract 
 which he would not have made if he was sober .^ 
 
 § 26. The disability of all persons under guardian- 
 ship — Spendthrifts. — As in the case of infancy, lunacy, 
 so may one be placed under guardianship for other causes 
 which render him more or less unable to take care of him- 
 self; for example, the habitual drunkard and spendthrift. 
 Any one who is for any cause placed under a guardian and 
 deprived of the control of his property, is consequently 
 deprived of the power to make a contract.^ 
 
 §27. Disability of coverture — Contracts of married 
 women. — At common law, the legal personality of the 
 woman was completely merged in that of the husband, and 
 with the loss of her legal personality she was also deprived 
 of the control of her property and of her contractual pow- 
 ers.* Of late years, in this country, a tendency has been 
 manifested generally to break away from these common- 
 law rules of disability of coverture, and since the legisla- 
 tive powers of the different States are acting independently 
 
 1 Say V. Barwick, 1 Ves. & B. 195; Wilcox v. Jackson, 51 Iowa, 208. 
 
 " Burroughs v. Richman, 1 Green (N. J.), 233; Butler ??. Mulvihill, 1 
 Bligh, 137; Birdsong v. Birdsong, 2 Head, 289; Murray v. Carlin, 67 111. 
 286 ; White v. Cox, 2 Hayw. 79 ; Mansfield v. Watson, 2 Iowa, 111 ; Henry 
 V. Ritenour, 31 Ind. 136. 
 
 s Mansfield B. Felton, 13 Pick. 206; Chew ». Bank of Baltimore, 14 
 Md. 299; Lynch «. Dodge, 130 Mass. 458. For the constitutional limita- 
 tions upon the power of the State to deprive a spendthrift of the con- 
 trol of his property, and to place him under guardianship, see Tiede- 
 man's Limitations of Police Power, § 138. 
 
 * For a consideration of the reasons that induced the subjection of 
 the wife and her property to the control of the husband, see Tiedeman's 
 Limitations of Police Power, §§ 161-163. 
 
 27 
 
§ 28 PARTIES. [CH. II. 
 
 of each other and without concert, we naturally find the 
 existing law of married women to vary in detail with each 
 State, in almost all of which there is found a variable di- 
 vergence from the, common-law rules. In consequence of 
 the general character of a treatise like the present, it will 
 be impossible to state the statutory law of each State, and 
 any attempt to make a general statement of the statutory 
 modifications would be more or less misleading. It has 
 consequently been deemed advisable not to make such an 
 attempt, and confine the present statements to a considera- 
 tion of the common-law rules, warning the reader to look 
 for modifications in the statutes of the State in which the 
 contracts of a married woman are made or are to be per- 
 formed. According to the common law, a married woman 
 cannot make a valid contract of sale, and her attempt to 
 do so is absolutely void. So void are all her contracts that 
 a ratification of them after she becomes sole does not bind 
 her, unless the ratification is based upon a new considera- 
 tion.^ But it has been held that she might ratify purchases 
 for her own benefit, especially necessaries for herself and 
 the ratification would be binding upon her.^ 
 
 § 28. Effect of marriage on aate-nnptial contracts. — 
 
 If a woman, while single, makes a contract and marries 
 before it is paid, the liability for its payment is imposed by 
 the law upon the husband during the marriage. Although, 
 jn theory, this obligation of the husband for the ante- 
 nuptial debts of his wife rests upon the supposition that he 
 has come into possession of all her property, and hence the 
 
 1 Smith V. Allen, 1 Lans. 101; Watkins v. Halstead, 2 Sandf. 311; 
 Hayward u. Barker, 62 Vt. 439; Kennelly ». Martin, 8 Mo. 698; Musick 
 V. Dodson, 74 Mo. 624; Waters ». Bean, l5.Ga. 358; Porterfleld v. Butler, 
 47 Miss. 165. 
 
 2 See GoTildlng v. Davidson, 28 Barb. 438; s. c. 26 N. Y. 604; "Vance 
 ■y. Wells, 8 Ala. 399; Hubbard v. Bugbee, 55 Vt. 506. See also Hemp- 
 hill V. McClimans, 24 Pa. St. 367. 
 
 28 
 
CH. II. j PARTIES. § 29 
 
 creditors cannot secure payment from her, yet his liability 
 for these debts is not limited to the amount of property he 
 has acquired from his wife ; nor does it depend upon his 
 knowledge of their existence at the time of the marriage. 
 He is liable, even if ^he comes to him without any dowry, 
 and laden with debts, whose existence has been concealed 
 from him.^ In all such cases the husband and wife must 
 be sued jointly.^ But the liability of the husband, and of 
 his property, for the ante-nuptial contracts of his wife ex- 
 pires with the termination of the coverture, whether it 
 closes with the death of either of them or by divorce. If 
 the husband dies before action is instituted, his surviving 
 wife will alone be liable and not his estate ; and in the event 
 of her death, during the lifetime of the husband, action 
 must be brought against her personal representatives.^ 
 And all her property, remaining at her death, including her 
 choses in action, not reduced to possession by the husband, 
 will be liable in the hands of her administrator for these 
 debts.* 
 
 § 29 . ^Exceptions to married women's contractual dis- 
 ability. — There are several exceptional cases, in which the 
 married woman is given by the law the power to contract. 
 The first case is where the husband is an alien or civilly 
 dead. If the husband is an alien enemy, he is prevented 
 by law from coming to her aid; it is therefore necessary 
 for her own maintenance and support to have the power to 
 contract, and the law concedes this power to her. So, also, 
 where the husband is simply an alien, and has never resided 
 in this country, particularly when he is prohibited by the laws 
 
 1 1 Blackst. Com. 443; 2 Kent Com. 143-146; Schouler's Domestic 
 Relations, 69; 1 Daniel's Negot. Inst., § 258. 
 
 2 Mitchinson v. Hewson, 7 T. K. 348. 
 
 8 Woodman v. Chapman, 1 Camp. 189; Curtton v. Moore, 2 Jones' Eq. 
 204; 2 Kent Com. 144; Byles on Bills, (*66), HO. 
 
 * Heard v. Stamford, 3 P. Wras. 409; Morrow v. Wliitsides, 10 B. 
 Men. 411; 1 Parsons' N. & B. 86. 
 
 29 
 
§ 2i) PAETIES. [CH. II. 
 
 of his own country from leaving the realm without the per- 
 mission of the State authority.* In Massachusetts it has 
 been held that the States of the American Union are foreign 
 States so far that a husband is treated as an alien who lives 
 in a different State from that in which his wife re-^ides. 
 She has in such a case the same powers of a feme soZe, which 
 are conceded to her, when her husband lives and has al- 
 ways lived in a foreign land.^ But if the alien has once 
 lived in the same State or country with his wife, and has 
 gone abroad, she does not acquire the rights of a feme 
 sole, until, by a seven years' absence, and without communi- 
 cation or intelligence of him during that time, he is pre- 
 sumed by the law to be dead.^ In Massachusetts, permanent 
 desertion and departure of the husband to a foreign State, 
 restore the powers of a single woman to the wife, and she 
 can then make binding contracts.* But a contrary decision 
 was reached in a similar case by the Supreme Court of Mis- 
 souri. The court say: "Coverture operates [as] a legal 
 disability to contract, and all contracts of a feme covert 
 are absolutely void. The facts in this case do not bring it 
 within any of the exceptions. The cases cited from th'e 
 English books are where the husbands abjured the realm, 
 or were foreigners residing abroad. The principles settled 
 in these cases do not apply. If by a removal from one 
 State to another, or a separate residence indifferent States, 
 the indissoluble connection by which the wife is placed 
 under the power and protection of her husband could be 
 cancelled, and the parties thereby relieved of their respect- 
 ive liabilities and disabilities, there would be little need of 
 
 1 Derryt!. Duchess of Mazarine, 1 Ld. Raym. 147; Kay u. Duchesse 
 de Peinne, 3 Camp. 123; Gregory v. Paul, 15 Mass. 31; McArthur v. 
 Bloom, 2 Duer, 151. 
 
 2 Abbott v. Bailey, 6 Pick. 89. 
 
 8 Kay V. Duchesse de Peinne, 3 Camp. 123; Lorlng ». Slelneman, 1 
 Met. 204. 
 
 * Gregory ». Paul, 15 Mass. 31. 
 30 
 
CH. 11. J PARTIES. § 29 
 
 troubling the legislature or the courts on the subject of 
 divorces."^ Tlie married woman is, for like reasons, not 
 restored to the legal freedom of a single woman, when she 
 is merely living apart from her husband ; ^ or when she has 
 been divorced from her husband a mensa et thoro.^ But 
 all absolute divorces, whether common-law or statutory, 
 will remove from the married woman her marital disabil- 
 ities, since these divorces operate as a complete dissolution 
 of the marriage tie.* Impris(mment, banishment or trans- 
 portation, or the renunciation of civil life by the entry 
 into a monastery or convent, have been held to dissolve the 
 marriage tie so far as to restore the married woman to the 
 contractual and property rights of a single woman." By 
 the custom of London, a married woman was allowed to 
 become a merchant on her own account, to be a sole trader^ 
 as she was called. As a sole trader, she had the incidental 
 power to make all contracts necessary for the prosecution 
 of her separate business." In the United States, a similar 
 power is sometimes granted by statute to make all sorts of 
 contracts, in the capacity of a sole trader.' But in the 
 absence of statutory authority, the married woman can- 
 not become a trader, except by the consent of her hus- 
 band; and, of course, his consent makes him a responsible 
 party to the business.^ 
 
 1 Chouteau v. Merry, 3 Mo. 254. 
 
 2 Marshall v. Rutton, 8 T. R. 545 ; Hatchett u. Baddeley, 2 W". Black. 
 1079; Lean ». Schultz, 2 W. Black. 1195; Hyde v. Price, 3 Ves. jr. 443. 
 
 ' Fairthorne v. Blaqulre, 6 Maule & S. 73; Lewis v. Lee, 3 Barn. & C. 
 291. The rule Is different in Massachusetts. Dean u. Richmoudj 5 Pick. 
 461. 
 
 ^ Chamberlaiue v. Hewson, 5 Mod. 71; 1 Daniel's Negot. Inst., § 243; 
 Story on Bills, § 90; 1 Parsons' N. & B. 78. 
 
 '= Hatchett v. Baddeley, 2 W. Blackst. 1079; Ex parte Franks, 7 Bing. 
 762; 2 Kent Com. 136. 
 
 « Beard v. Webb, 2 B. & P. 93; Byles on Bills (*63j, 105. 
 
 ' Camden v. Mullen, 29 Cal. 566. 
 
 8 Richardson w. Merrill, 32 Vt. 27; Partridge ■«. Stocker, 36 Vt. 108; 
 James v. Taylor, 43 Barb. 530; Todd v. Lee, 16 Wis. 480; Moses v. 
 
 31 
 
§ 30 PAKTIES. [CH. II. 
 
 § 30. Contracts of married women with a separate 
 estate. — In order to relieve married women of the hard- 
 ships that ordinarily result from her common-law dis- 
 abilities, as soon as the conception of an equitable estate 
 in projDeity apart from the legal title was fully developed, 
 the English Court of Chancery so constructed the equitable 
 estate that it was held by its owner free from all the com- 
 mon-law restrictions and qualities, which hampered the en- 
 joyment of the property, or which for some other reason 
 were found to be-burdensome. It thus became the rule of 
 equity, that a married woman could hold and enjoy, sep- 
 arate from and beyond the control of the husband, any 
 property that was settled on her as an equitable estate to 
 her sole and separate use.^ In making a conveyance to the 
 separate use of a married woman, her power of alienation 
 and disposition may, by a special clause, be restricted or 
 taken away entirely during the marriage.^ In the absence 
 of such a restraining clause in England and in most of the 
 United States, a married woman is to be treated, in respect 
 to her sepai-ate property, as a, feme sole, and she may dis- 
 pose of the equitable estate as she pleases.^ In a number of 
 
 Fogartie, 2 Hill (S. C), 335; Abbott v. Mackinley, 2 Miles, 220. But it 
 has been held in New York that if a husband authorizes his wife to ex- 
 ecute notes, in order that the notes may be binding upon the husband, 
 they must purport on their face to have been given by the wife, as agent 
 or on behalf of the husband. Minard v. Mead, 7 Wend. 68. 
 
 1 See Tiedeman on Real Property, § 469. 
 
 2 Hawkes v. Hubback, L. K. 11 Eq. 5; In re Gaffee's Trusts, 1 Macu. 
 & G. 541; Tullett o. Armstrong, 4 My. &Cr. 377; Waters ». Tazewell, 9 
 Md. 291; Fellows v. Taun, 9 Ala. 999; Shirley v. Shirley, 9 Paige, 363; 
 Fears v. Brooks, 12 Ga. 195; Baggett u. Meux, 1 Phil. 627. But see 
 Dubs V. Dubs, 31 Pa. St. 149; Miller «. Bingham, 1 Ired. 428. 
 
 ' Fettiplace v. Gorges, 1 Ves. 46; Rich v. Cockerill, 9 Ves. 69; Wag- 
 staff V. Smith, 9 Ves. 520; Sturgis v. Corp., 13 Ves. 190; Major v. 
 Lansley, 2 Russ. & My. 357; Essex v, Atkins, 14 Ves. 542; Dyett v. 
 North Am. Coal Co., 20 Wend. 570; s. c. 7 Paige Ch. 1; Powell v. Mur- 
 ray, 2 Edw. Ch. 636; Gardner v. Gardner, 32 Wend. 526; Yale». Dederer, 
 18 N. Y. 269; Imlay v. Huntington, 20 Couq. 17b; Leaycraft v. Hedden, 3 
 32 
 
CH. II. j PARTIES. § 30 
 
 the States, however, the English rule has been discarded and 
 the contrary doctrine maintained, that the married woman 
 has no power over her separate estate, except what is ex- 
 pressly granted or reserved to her in the deed of settlement.^ 
 Accordingly, we find that in England, as in those States in 
 which the married woman has in respect to her separate 
 estate the powers of a single woman, and in all other States 
 when these powers are expressly reserved to her, all her 
 contracts, which are made on the faith of the separate estate, 
 can be enforced against it. In England, her separate estate 
 is liable for all of her debts, for it is presumed that credit 
 was given to her in any case on the faith of the liability of 
 the separate estate.^ And this is also the rule in many of 
 the States, denying the necessity of any express charge of 
 the debt on the estate, or even the appropriation of the 
 consideration to the benefit of her estate.^ But in New 
 
 Green Ch. 551; Wyly v. Collins, 9 Ga. 223; Cooke v. Husbands, II Md. 
 492; Chew's Admr. v. Beall, 13 Md. 848; McCroan v. Pope, 17 Ala. 612; 
 Collins V. Larenburg, 19 Ala. 685 ; Coleman v. WooUey,. 10 B. Mon. 320 ; 
 Hardy v. Van Harlinger, 7 Ohio St. 208 ; Whitesides v. Cannon, 23 Mo. 
 457; Segond v. Garland, 23 Mo. 547; Frazler v. Brownlow, 3 Ired. Eq. 
 237; Newlin v. Freeman, 4 Ired. 312, 
 
 ^ Ewing V. Smith, 3 Desa. 417; Eeed v, Lamar, 1 Strobb. Eq. 27; Cal- 
 houn V. Calhoun, 2 Strobh. 231 ; Magwood v. Johnson, 1 HiU Ch. 228 ; 
 Lancaster v. Dolan, I Eawle, 231; Wallace v. Costan, 9 Watts, 137; 
 Thomas v. Folwell, 2 Whart. 11; Patterson v, Kobinson, I Casey, 81; 
 Metcalf V. Cook, 2 E. I. 355; Williamson©, Beckham, 8 Leigh, 20; Mor- 
 gan V. Elam, 9 Yerg. 375; Marshall v. Stephens, 8 Humph. 159; Doty v. 
 Mitchell, 9 Smed, & M. 447; Montgomery v. Agricultural Bank, 10 Smed. 
 & M. 567. 
 
 2 Bulfln «. Clarke, 17 Ves. 366; Hulme v. Tenant, 1 Bro, C. C. 16; 
 Bingham o. Noyes, Chitty on Bills, (21) 28; Stewarts. Lord Kirkwall, 
 3 Mad. Ch. 387. 
 
 3 Wicks V. Mitchell, 9 Kan. 80; Bell v. Kellar, 16 B. Mon. 381; Me- 
 tropolitan Bk. V. Taylor, 62 Mo. 338; Morrison v. Thistle, 67 Mo. 596; 
 Grapergether v. Fejervary, 9 Iowa, 163; Todd v. Lee, 16 Wis. 365; 
 Major V. Symmes, 19 Ind. 117; Williams v. Urmston, 35 Ohio St. 296 
 (overruling Levi v. Earle, 30 Ohio St. 147) ; Pentz v. Simeon, 2 Beasley, 
 232; Sogers v. Ward, 8 Allen, 387; Garland v. Pamplin, 32 Gratt. 303. 
 In Frank v. Lllienfeld, 33 Gratt. 349, Burks, J., said: " It is necessary 
 
 3 33 
 
§ 30 PAltTIES. [CH. 11. 
 
 York, it has been held that in order that a married woman's 
 separate estate may be charged with her debts, the inten- 
 tion to so charge it must be declared in the contract of 
 indebtedness itself; or it must be shown that the considera- 
 tion of the debt was obtained for the benefit of the estate. ^ 
 The charge upon the separate estate is a rule in equity, 
 designed to oflFset the favor shown to married women, in 
 violation of the common-law rule of disability. As it has 
 been explained by an English chancellor,^ "the separate 
 property of a married woman, being a creature of equity, 
 it follows that if she had a power to deal with it, she has 
 the other powers incident to property in general, namely : 
 the power of contracting debts to be paid out of it; and 
 inasmuch as her creditors have not the means at law of 
 compelling payment of those debts, a court of equity takes 
 upon itself to give effect to them, not as personal liabilities, 
 but by laying hold of the separate property, as the only 
 means by which they can be satisfied." There is, there- 
 fore, in such a case no personal liability for the debt * 
 
 that it (the contract of the married woman) be entered into with refer- 
 ence to, and in the credit of, the separate estate. There must be an 
 intention to make the separate estate liable. It need not, however, be 
 express; it may be Implied. It is implied when the wife executes a 
 bond, note, or other instrument for the payment of money, either as 
 principal or as surety for another, even for her husband, no undue in- 
 fluence being used." 
 
 1 Yale V. Dederer, 22 N. Y. 450; s. c. 18 N. Y. 265 (overruling same 
 casein 21 Barb. 286) ; White v. McNett, 33 N. Y. 371 ; Ledlie ». Vroomau, 
 41 Barb. 109 ; Corn Exchange Ins. Co. v. Babcock, 42 N. Y. 613 ; Second 
 Nat. Bk. V. Miller, 60 N. Y. 639; Conlin v. CantreU, 64 N. Y. 219. See, 
 also, Kenton Ins. Co. v. McClellan, 43 Mich. 564; Heugh v. Jones, 32 
 Pa. St. 432, But the note of the married woman, given for money ex- 
 pressed to be applied to the separate estate, will be binding upon the 
 estate, although she afterwards makes some other use of it. McVey v. 
 CantreU, 70 N. Y. 295. Contra, Heugh v. Jones, 32 Pa. St. 432. 
 
 2 Lord Chancellor Cottenham in Owens v. Dickenson, 1 Craig & Ph. 
 48, 
 
 ' Lloyd v. Lee, 1 Strange, 94; LittlefieldB. Shee, 2 B. & Ad. 84; Leer 
 V. Muggridge, 5 Taunt. 36. 
 34 
 
CH. II. J PARTIES. § 30 
 
 But any separate property she might own at the time of 
 trial and judgment will be liable,^ unless the debt has been 
 made a special charge upon a particular piece of property; 
 when the right of recovery will be confined to that prop- 
 erty, and the remainder of her separate estate will not be 
 liable. 2 
 
 1 Todd V. Ames, 60 Barb. 462. 
 
 2 See Eimm v. Weippert, 46 Mo. 532; Wolf v. Van Metre, 23 Iowa, 
 397. 
 
 35 
 
CHAPTER III. 
 
 ASSENT. 
 
 Section 33. General proposition. 
 
 34. Effect of variance from ofEer. 
 
 35. Mistakes of fact. 
 
 36. Counter-proposition works rejection of original offer — 
 
 Effect of subsequent acceptance. 
 
 37. Conditional acceptance, when binding. 
 
 38. Acceptance must be communicated. 
 
 39. Communication by maU, telegraph, telephone, phonograph. 
 
 40. Bight to retract offer. 
 
 41. When contract for option is binding. 
 
 42. Eetraction of acceptance. 
 
 43. When assent not necessary. 
 
 § 33. .General proposition. — It is a universal rule of 
 the law of contracts, as well as of the law of sales, that 
 there is no binding contract, and hence no sale, unless the 
 parties have mutually assented to the same contract. Until 
 there is a clearly defined offer on the one hand and an ac- 
 ceptance on the other of the same offer, there cannot be a 
 sale ; and no title passes, even though the possession is 
 transferred.* 
 
 Mere negotiations, which do not contain a distinct 
 offer and acceptance, will not be considered a sale. For 
 example, S. wrote G. : " How many rags have you on 
 
 1 ITtley V, Donaldson, 94 U. S. 29, 47; Gardner v. Lane, 12 Allen, 39, 
 43; Summers v. Mills, 21 Tex. 77, 86, 87; 2 Kent Com. 477; Champion 
 V. Short, 1 Camp. 63; Hutchinson ». Bowker, 5 M. & W. 535; Wontner 
 V, Sharp, 4 C. B. 404; Chaplin v. Clarke, 4 Ex. 403; Honeyman v- 
 Marryatt, 6 H. L. C. 112; Proprietors Eng. & For. Cr. Co. o. Arduin, L. 
 E. 5 H. L. 64; Crossley v, Maycock, 18 Eq. 180; Stanley v. DowdesweU, 
 L. R. 10 C. P. 102; Lewis v. Brass, 3 Q. B. D. 667. 
 36 
 
CH. III.] ASSENT. § 34 
 
 hand, and your price for them?" G. replied, "We have 
 about a ton, and our price is 3^ cents." S., answered, 
 "We will take the rags at the price you name." Held, 
 to be no sale, because there was no distinct offer and ac- 
 ceptance.^ It has also been held to be no sale, where the 
 negotiations have not produced a clear statement of the 
 contract, although there may be a mutual determination to 
 make a sale.^ But where all the terms of the sale have 
 been agreed upon, and nothing further is to be done but to 
 make a more formal expression of the contract of sale, there 
 will be a present binding contract of sale, notwithstanding 
 the parties contemplate the subsequent execution of a formal 
 bill of sale.^ The sale is also void, where the terms of 
 the contract are ambiguous or unintelligible.* 
 
 § 34. Effect of variance from offer. — If the acceptance 
 varies from the offer in respect to the quantity, quality or 
 identity of the thing sold, or as to the terms and conditions 
 of the sale, there is no sale, and title does not pass. The 
 acceptance would in such cases be in effect a counter-propo- 
 sition, which would have to be accepted by the offerer, be- 
 fore it could become a complete sale." Where, therefore, 
 
 1 Smith V. Gowdy, 8 Allen, 566. See,, to same effect, Slaymaker v. 
 Irwin, i Whart. 369; Beaupre v. Pacific, &c., Tel. Co., 18 U. C. Q B. 60; 
 Moulton Ti. Kershaw, 59 Wis. 316. See, also, Craig v. Harper, 3 Cush. 
 158; Tncker v. Woods, 12 Johns. 190; McDonald v. Bewick, 51 Mich. 
 79; Fenno v. Weston, 31 Vt. 345; Falls v. Gaither, 9 Port. 605; Johnston 
 V. Fessler, 7 Watts, 48 ; Johnson v. Filkington, 39 Wis. 62. 
 
 2 Appleby v. Johnson, L. R. 9 C. P. 168. 
 
 3 Crossley v. Maycock, 18 Eq. 180; Lewis ». Brass, 3 Q. B. D, 667 C. 
 A.; Bonnewell v. Jenkins, 8 Ch. D. 70 C. A.; Brogdeno. Metropolitan 
 Bailway Co., 2 App. Cas. 672; Rossiter v. Miller, 3 App. Cas. 1124, 
 
 * Whelan v. Snllivan, 102 Mass. 204; Cummer v. Butts, 40 Mich. 322; 
 Buckmaster v. Consumers' Ice Co., 5 Daly, 313 ; Guthing o.'Lynn, 2 B. & 
 Ad. 232; Fearce v. Watts, 20 Eq. 492; Bourne v. Seymour, 16 C. B. 337; 
 24 L. J. C. P. 207. 
 
 5 Hutchinson v. Bowker, 5 M. & W. 535 ; Jordan v. Norton, 4 M. & W. 
 155; Felthouse v. Bindley, 11 C. B. (n. s.) 869; 31 L. J. C. P. 204; Watts 
 
 37 
 
§ 34 ASSENT. [CH. III. 
 
 an offer to buy a certain quantity of goods is partly filled 
 by the shipment of a smaller quantity, there is no sale, and 
 the loss of the property, while in transit, will fall on the 
 shipper, and not on the consignee.' But if the smaller 
 shipment is actually received, and retained by the party 
 ordering the larger quantity, the law will imply a contract 
 to buy the smaller quantity and the party so accepting it 
 will be responsible for the contract price. This is certainly 
 the rule, where the goods are received with the knowledge 
 that the whole amount cannot or will not be furnished.^ If 
 the part of the goods is received without knowing that the 
 whole amount would not be furnished the goods could be 
 returned, if not consumed or disposed of. And, presum- 
 ably, if consumed, the party consuming them, although 
 not liable on any implied contract of sale, would be liable 
 for a conversion of the goods to the amount of their market 
 value, instead of the contract price. A similar liability at- 
 taches, where, in response to an order for a given quantity, a 
 larger quantity is sent and a portion smaller than that which 
 
 ■o. Ainsworth, 1 H. & C. 83; 31 L. J. Ex. 448; Proprietors English and 
 Foreign Credit Co. v. Arduin, L. R. 5 H. L. 64 ; Carr v. Duval, 14 Pet. 
 77; Potts V. Whitehead, 23 N. J. Bq. 514; Hutchinson v. Blakeman, 3 
 Met. (Ky.) 80; Northwestern Iron Co. v. Meade, 21 Wis. 474; Muclajv, 
 Harvey, 90 111. 525; Myers v. Smith, 48 Barb. 614; Johnson v. Stevenson, 
 26 Mich. 63; Mcintosh v. Brill, 20 Up. Can. C. P. 426; Minneapolis, etc., 
 Railway v. Columbus Rolling Mill, 119 U. S. 149; Eggleston v. Wagner, 
 46 Mich. 610; Maynard v. Tabor, 53 Me. 511; Snow v. Miles, 3 Cliff. 608. 
 
 1 Bruce v. Pearson, 3 Johns. 534. See Corning v. Colt, 5 Wend. 253; 
 Plant Seed Co. v. Hall, 14 Kan. 553; Jenness v. Mt. Hope Iron Co., 53 
 Me. 20. 
 
 2 Bowker ■». Hoyt, 18 Pick. 558; Elanders v. Putney, 58 N. H. 358; 
 Sentell v. Mitchell, 28 Ga. 196; Booth v. Tyron, 15 Vt. 518; Ruize i). 
 Norton, 4 Cal. 355; Richards v. Shaw, 67 111. 222; Harralson v. Stein, 
 50 Ala. 347; Goodwin v. Merrill, 13 Wis. 658; Shaw c. Badger, 12 S. & 
 R. 275; Avery v. Wilson, 81 N. Y. 341; Oxendale v. Wetherell, 9 B. & 
 C. 386; Richardson v. Dunn, 2 Q. B. 222. But see apparently contra, 
 Champlin v. Rowley, 13 Wend. 258; 18 Wend. 187; Mead u. Golyer, 16 
 Wend. 632; Paiges. Ott, 5 Denio, 406; Kein v. Tupper, 52 N. Y. 555; 
 Tipton «. Eaitner, 20 N. Y. 423; Witherow v. Witherow, 16 Ohio, 238. 
 
 38 
 
CH. in. 1 ASSENT. § 35 
 
 ■was ordered, is retained, while the rest was returned. The 
 person retaining the smaller quantity is liable for their 
 value, on an implied contract to buy that quantity, and is 
 not bound to take the quantity first ordered.^ 
 
 § 35. Mistakes of fact. — Not only does an intentional 
 variance of the acceptance from the offer prevent the com- 
 pletion of the contract of sale, but there will also be no 
 , sale where, through a mistake of fact, the parties have 
 failed to agree upon the terms or the subject-matter of the 
 Siile. If, for example, one party offered a certain thing for 
 sale, and through a mistake of fact, the offeree accepted 
 under the mistaken belief that he was to get something else ; 
 or if there was a misunderstanding of the parties as to the 
 material terms of the sale, there would be no mutual assent 
 to the same contract, and hence no sale. Where the parties 
 have thus failed to agree upon the same thing, neither party 
 is bound by the transaction.^ 
 
 It is also held to be a fatal variance, where one party in 
 dealing with the other, mistakes him for a third person, and 
 enters into a contract of sale, believing that the contract is 
 made with the third person ; the courts uniformly hold that 
 
 1 Hart?;. Mills, 15 M. & W. 85. 
 
 2 Thornton v. Kempter, 5 Taunt. 786; RaflSes v. Wichelhaus, 2 H. & 
 C. 906; L. J. Ex. 160; Henkel v. Pope, L. R. 6 Ex. 7; Phillips v. Bistolli 
 2 B. & C. 511; Mudge v. Oliver, 1 Allen, 74; Gardner v. Lane, 9 Allen 
 492; Decan v. Shipper, 35 Pa. St. 239; Allen v. Hammond, 11 Pet. 63 
 Hartford, etc.,R. R. Co. v. Jactson, 24 Conn. 514; Rovengo v. Defferari 
 40 Cal. 459; Webb v. Odell, 49 N. Y. 585; Calkins v. Griswold, 18 Hun 
 208; McGoren v. Avei-y, 37 Mich. 20; Winchester v. Howard, 97 Mass 
 304; Harvey v. Harris, 112 Mass. 32; Kyle v. Kavanaugh, 103 Mass. 356 
 Hills V. Snell, 104 Mass. 173; Sheldon v. Capron, 3 R. I. 171; Rupley v. 
 Daggert, 74 111. 351 ; Chapman v. Cole, 12 Gray, 141 ; Hutmacher v. Har- 
 ris, 38 Pa. St. 491; Durfee v. Jones, U R. I. 588; Bowen v. Sullivan, 62 
 Ind. 281; Gibson v. Pelkie, 37 Mich. 380; Greene v. Bateman, 2 W. & M. 
 359; Utley u. Donaldson, 94 U. S. 29; Ketcham v. Catlin, 21 Vt. 191; 
 Byers v. Chapin, 28 Ohio St. 300; Barker i). Dinsmore, 72 Pa. St. 427; 
 Livermore v. White, 74 Me. 452; Ray u. Light, 34 Ark. 421. 
 
 39 
 
§ 35 ASSENT. [CH. in. 
 
 there is no sale. The English cases seem to require that 
 the enforcement of the contract must be shown to be preju- 
 dicial to the party making the mistake, in order that the 
 mistake as to the other party may avoid the transaction . 
 For example, it would be prejudicial to the party making 
 the mistake, where he had a set-off against the party with 
 whom he supposed he was contracting.^ But, in the United 
 States, the transaction is avoided, without affirmative proof 
 of prejudice to the person who makes the mistake,^ 
 
 But it is not every mistake which will avoid a contract 
 of sale. In order that the mistake may have that effect, it 
 must refer to the express terms of the sale, or to the sub- 
 ject-matter of the sale. If it has reference to some collat- 
 eral fact or circumstance, which was not expressed or re- 
 ferred to in the negotiations, but which was in the mind of 
 one of the parties at that time, as, for example, an impres- 
 sion that the thing was suitable for a special use, the mis- 
 take is held not to have been made in the terms of the con- 
 
 1 Mitchell V. Lepage, Holt N. P. 253 ; Bouiton v. Jones, 2 H. & N. 564 ; 
 27 L. J. Ex. 117. See, also, to same effect, Johuson v. Haylton, 7 Q. B. 
 D. 438 C. A. ; Ex parte Barnett, 3 Ch. D. 123. 
 
 2 Boston Ice Company v. Potter, 123 Mass. 28, 31, Endicott, J. : " The 
 fact that the defendant in a particular case has a claim in set-oS, against 
 the original contracting party, shows clearly the injustice of forcing 
 another person upon him to execute the contract without his consent, 
 against whom his set-off would be unavailable. But the actual 
 existence of the claim in set-off, cannot be a test to determine that there 
 is no implied assumpsit or privity between the parties. Nor can the non- 
 existence of a set-off raise an implied assumpsit. If there is such a set- 
 off it is sufficient to state that as a reason why the defendant should 
 prevail ; but it by no means follows that, because it does not exist, the 
 plaintiff can maintain his action. The right to maintain an action can 
 never depend upon whether the defendant has or has not a defense to 
 it. * • * It is, therefore, immaterial that the defendant had no claim 
 in set-off against the Boston Ice Company." See, also, Aborn v. Mer- 
 chants' Transportation Co., 135 Mass. 283; Bodliff v. Dallinger, 141 
 Mass. 1; Dean v. Yates, 22 Ohio St. 388; Hamet v, Letcher, 27 Ohio St. 
 356; Randolph Iron Co. v. Elliott, 34 N.J. L. 184; McCullis v. Allen, 57 
 Vt. 505 ; Barker v. Dinsmore, 72 Pa. St. 427. 
 
 40 
 
CH. HI.] ASSENT. § 36 
 
 tract, and hence the sale is valid notwithstanding.^ And 
 so, also, where one sold a hundred chests of tea by the 
 wrong sample, the mistake was held to have no effect 
 upon the validity of the sale, if the purchaser was will- 
 ing to take the tea, which the vendor had intended to 
 sell.* The mistake was not in the subject-matter, but in 
 giving a warranty that the tea was of the quality of the 
 sample. 
 
 But it must be remembered that where a mistake is not 
 mutual, and the other party has acted upon the declared, 
 but mistaken, intention of the first party, the first party 
 is estopped from denying that the declared intention 
 was his real intention. Where the mistake is mutual, 
 and especially where it is obvious, the courts may order a 
 reformation of the bill of sale, so that it may conform to 
 the intentions of the parties.^ 
 
 § 36. Counter-proposition works rejection of original 
 offer — Effect of subsequent acceptance. — If the re- 
 sponse to an offer be a counter-proposition, varying in 
 some material respect from the original offer, it is a virtual 
 rejection of the original offer ; and if the counter-proposi- 
 tion is likewise rejected, the offeree cannot afterwards 
 accept the original offer and hold the offerer to his propo- 
 sition against his will. The offerer is not bound by an 
 acceptance which is made after a rejection of his offer. 
 He is not supposed to continue his offer, after it has been 
 
 1 Williams v. Hathaway, 19 Pick. 387; Wheat v. Cross, 31 Md. 99; 
 Smith V. Ware, 13 Johns. 267; Taylor v. Fleet, 4 Barb. 95; Chanter v. 
 Hopkins, 4 M. & W. 399; Mondell v. Steel, 8 N. & W. 858; Foster v. 
 Smith, 18 C. B. 166; OUivant v. Bayley, 6 Q. B. 288; Pudeau v Bunnett, 
 1 C. B. (N. 8.) 613. 
 
 2 Scott ». Littledale, 8 E. &B. 816; 27 L. J. Q. B. 201; Megaw v. Mod- 
 loy, 2 Ir. L. R. C. P. D. 530. 
 
 » Wilson ». Wilson, 6 H. L. C. 40; Burohellw. Clark, 2 C. P. D. 88, 
 C. A. ; Bird's Trust, 3 Ch. D. 214 ; Anon, in Bache v. Proctor, Dougl. 
 384 ; Lloyd v. Lord Say et al., 10 Mod. 46 ; 4 Browne P. C. 73. 
 
 41 
 
§ 38 ASSENT. [CH. III. 
 
 rejected.' But ia order that there may be an implied re- 
 jection of the original offer, there must be a distinct 
 counter-proposition, A mere inquiry, whether the offerer 
 would change his terms, is not such a counter-proposition, 
 which would work a rejection of the original offer, and 
 prevent a subsequent acceptance of it.^ 
 
 §37. Conditional acceptance — When binding. — Al- 
 though as a general rule, the acceptance must be absolute 
 and unconditional; and a conditional acceptance does not 
 complete the sale: yet, if that conditional acceptance is 
 in turn agreed to by the original offerer, the sale does be- 
 come complete, and the title to the goods passes subject to 
 the performance of the condition.^ 
 
 § 38. Acceptance must be communicated. — Not only 
 must there be a concurrence of minds on the same propo- 
 sition, but where an offer has been made, its acceptance by 
 the other party must be communicated to the offerer. In 
 practical law, it is imposs^ible to take note of an operation 
 of the mind, which is not manifested by word or deed. So 
 an acceptance does not have the effect of completing the 
 contract of sale, until it has been communicated to the 
 offerer, either actually, or constructively through some 
 
 1 Minneapolis, &c., Railway v. Columbus Rolling Mill, 119 U. S. 149; 
 Hyde V. Wrench, 3 Beav. 334; Fox v. Turner, 1 111. App. 153. See also 
 Cartmel v. Newton, 79 Ind. 1; McCottert;. Mayor, 37 N. Y. 325; Solomon 
 V. Webster, 4 Col. 353; Merriam v. Lapsley, 2 McCrary, 606; Bater ». 
 Holt, 56 Wis. 100; Pulton Brothers u. Upper Canada Furniture Co., 9 
 Ont. App, 211. 
 
 2 Stevenson v. McLean, 5 Q. B. T). 346. In this case the offer was for 
 the sale of iron, "for 40s net cash, open till Monday." The telegram 
 from offeree on Monday morning was : " Please wire whether you would 
 accept forty for delivery over two months, or if not, longest limit you 
 would give." Held, not a rejection of the original ofier, and offerer 
 would be bound by a subsequent acceptance. 
 
 3 Moss V. Sweet, 16 Q. B. 493; Ex parte Wingfleld, In re Florence, 10 
 Ch. D. 591 C. A. 
 
 42 
 
CH. III. J ASSENT. § 38 
 
 ageiicy.i If the offer is made through an agent, he is im- 
 pliedly authorized to receive the acceptance, and the con- 
 tract is complete, when the acceptance is communicated to 
 this agent. ^ Notice to a duly authorized agent is equiva- 
 lent to notice to the principal. 
 
 But the acceptance need not be communicated by express 
 words. The acceptance may be communicated by a nod or 
 other gesture, or it may be implied from the language or 
 conduct of the offeree.^ The fall of the hammer at an 
 auction sale is as much of an acceptance as if uttered words 
 were used to inform the bidder of the acceptance of his 
 bid.* Even silence may under peculiar circumstances 
 amount to an acceptance. And, of course the sending of 
 goods in pursuance of an order for them, is a suiEcient ac- 
 ceptance.* 
 
 But in order that the acceptance may bind the offerer, it 
 must be communicated to the offerer within the time for 
 which the offer was left open for his acceptance, if the 
 time be stipulated.^ And where no time is stipulated, then 
 it must be accepted within a reasonable time, the offer being 
 held to continue open for acceptance for a reasonable time, 
 unless sooner retracted.' What is a reasonable time is a 
 
 1 Jenness v. Mt. Hope Iron Co., 53 Me. 20; Emerson v. Graff, 29 Pa. 
 St. 358; Borland v. Guffey, 1 Grant, 394; VThite v. Corliss, 46 N. Y. 467; 
 Beckwith v. Cheever, 21 N. H. 41; Brogden v. Metropolitan Railway Co., 
 2 App. Cas. 666. 
 
 2 Trevor v. Wood, 36 N. Y. 306 ; Mactier v. Frith, 6 Wend. 103. 
 
 3 Joyce V. Swann, 17 C. B. (n. s.) 84, 101 ; Gowingc. Knowles, 118 
 Mass. 232; Street u. Chapman, 29 lud. 142; Payne v. Cave, 3 T. E. 148; 
 Hoadley v. McLaine, 10 Bing. 482, 487. 
 
 4 Payne ». Cave, 3 T. R. 148. 
 
 ^ Brogden v. Metrop. Railway Co., 2 App. Cas. 666; Taylor v. Jones, 
 L. E. 1 C.P. D. 87, 90; Crook v. Cowan, 64 N. C. 743. 
 
 6 Curtis 0. Blair, 26 Miss. 325; Potts v. Whitehead, 20 N. J. Eq. 55; 
 Longworth v. Mitchell, 26 Ohio St, 334; Boston, &c., E. E. Co. v. Bart- 
 lett, 3 Cush. 224, 
 
 ' Loving V. Boston, 7 Met. 409; Martin v. Black, 21 Ala. 721; Minne- 
 sota Oil Co. V. Collier Lead Co., 4 Dill. 431; Craft v. Isham, 13 Conn. 
 
 43 
 
§ 39 ASSENT. [CH. III. 
 
 question of law for the court, to be determined by a con- 
 sideration of the facts of each case.^ 
 
 § 39. Communication by mail, telegraph, telephone, 
 phonograph. — Where the negotiations for a sale are 
 conducted by the parties personally, or through duly au- 
 thorized private agents, it is very plain that the sale is 
 complete when the acceptance has been communicated to 
 the offerer or to his duly authorized agent. And any 
 failure of the agent to notify his principal of the accept- 
 ance of his offer would not affect the validity of the con- 
 tract of sale. This is too general a proposition of the law 
 of agency to require any citation of authority. 
 
 At an early day, all means of communication were 
 through private agencies. The mail was transported by 
 private individuals. Hence, when by the case of Mactier 
 V. Frith, 2 it was decided that the sale was complete, when 
 the letter of acceptance was mailed, in response to a mailed 
 letter, containing the offer, the court merely decided that, 
 by sending the offer through the mail, the offerer made the 
 mail his agent for the receipt of the acceptance; and that, 
 under the existing commercial custom, the acceptance was 
 constructively communicated to the offerer, when the letter 
 of acceptance was deposited in the mail for transmission to 
 the offerer. Many of the courts rest their decision upon the 
 inability of having both parties become acquainted 
 with the completion of the contract at the same time, 
 and upon the necessity of fixing upon some time for 
 the completion of the contract.* But it would appear 
 
 41; Averill v. Hedge, 12 Conn. 424; Peru v. Turner, 10 Me. 185; Chicago, 
 &c., K. R. Co. u. Dane, 43 N. Y. 240. 
 
 1 Chicago, &c., B. R. Co. v. Bane, 43 N. Y. 240. See also cases in 
 preceding note. 
 
 2 6 Wend. 306. 
 
 3 In Mactier v. Frith, Marcy, J., said: " If a bargain can be com- 
 pleted between absent parties, it must be when one of them cannot isnow 
 the fact whether it be or be not completed. It cannot begin to be ob- 
 
 44 
 
CH. III.] ASSENT. § 39 
 
 that the theory of agency would provide more logical satis- 
 faction, by showing that an authorized agent of the 
 offerer had received notice of the acceptance. The fact 
 that the post has become a public agency, does'not prohibit 
 the application of the theory. One may make a public 
 agency his own agent, just as well as some private indi- 
 vidual. But whether the ruling of the courts is made to 
 rest upon one ground or upon the other, it is very well set- 
 tled now that, in the case of negotiations by mail, the sale 
 is complete when the letter of acceptance is deposited in 
 the mail ; and that the contract is binding upon both parties, 
 although the letter of acceptance should never reach the 
 offerer.^ The courts have also applied the rule to cases 
 
 llgatory on the one before it is on the other; there must be a precise 
 time when the obligation attaches to both, and this time must happen 
 ■when one of the parties cannot know that the obligation has attached 
 to him ; the obligation, therefore, does not arise from a knowledge of 
 the present concurrence of the wills of the contracting parties. All the 
 authorities state a contract or an agreement (which is the same thing) 
 to be aggregatio mentium. Why should not this meeting of the minds, 
 which makes the contract, also indicate the moment when it becomes 
 obligatory?" See, also, Adams v. Lindsell, 1 B. & Aid. 681 : " If thatwere 
 so (that the mailing of the acceptance did not complete the contract), 
 no contract could ever be completed by the post. For if the defendants 
 were not bound by their ofEer, when accepted by the plaintiff till the 
 answer was received, then the plaintiffs oiight not to be bound till after 
 they had received the notification that the defendants had received their 
 answer and assented to It; and so it might go on ai infinitum. The de- 
 fendants must be considered in law as making, during every instant of 
 the time their letter was traveling, the same identical offer to the plaint- 
 iffs, and then the contract is completed by the acceptance of it by the 
 latter." 
 
 1 Chiles V, Nelson, 7 Dana, 281; Mactier ». Frith, 6 Wend. 103; 
 Tayloe v. Insurance Co., 9 How. 390; Vassar v. Camp, 11 N. Y. 441 ; s. c. 
 14 Barb. 341 ; Abbott v. Shepard, 48 N. H. 14 ; Stockham v. Stockham, 32 
 Md. 196; Bryant v. Booze, 65 Ga. 438; Levy v. Cohen, 4 Ga. 1; Wheat «». 
 Cross, 31 Md. 103; Hamilton v. Insurance Co., 6 Pa. St. 339; Dunlop v_ 
 Higgins, 1 H. L. Cas. 381; Adams v. Lindsell, 1 B. & Aid. 681 ; Brisham 
 V. Boyd, 4 Paige, 17; Kentucky Mut. Ins. Co. v. Jenks, 5 Ind. 97; Hal- 
 lock V. Insurance Co., 26 N. J. Law 282; Moore v. Pierson, 6 Iowa, 279; 
 Hutcheson v. Blakeman, 3 Met. (Ky.) 80; Lungstrassu. German Ins. Co., 
 
 45 
 
§ 3D ASSENT. [CH. III. 
 
 where the offer had been made and accepted by telegraph. 
 The contract is held to be complete, when the telegram 
 announcing his acceptance has been deposited by the of- 
 feree with the telegraph company; and the contract is 
 binding, although the telegram of acceptance is never re- 
 ceived by the offerer.^ 
 
 If the offer is communicated by mail, and the acceptance 
 is communicated by telegraph, it is doubtful when the con- 
 tract is complete. If the theory of agency is made to sup- 
 port the conclusion of the courts, the contract would in 
 this case be held to be incomplete, as long as the notice of 
 acceptance has not been received. For, since the accept- 
 ance has not been communicated through the same agency, 
 by which the offer was made, the deposit of the notice of 
 acceptance with a new agency makes that agency the agent 
 of the acceptor, and therefore the notice of acceptance 
 must be delivered to the offerer, or his duly authorized 
 agent, before the contract is complete and binding. 
 
 But in all these cases, the parties may by express agree- 
 ment provide that the contract will not be binding until the 
 acceptance has been received by the offerer.^ 
 
 The telephone has lately come into general use as a means 
 of communication. Inasmuch as the communication by tele- 
 phone is personal, although the parties are at a distance 
 from and out of the sight of, each other, the ordinary rules 
 of personal communication apply ; and the only doubtful 
 
 48 Mo. 204; Washburn v. Fletcher, 42 Wis. 152; Haas v. Myers, 111 III. 
 421 ; Winterport, &c., Co. v. Schooner Jasper, 1 Holmes, 101; Ferrier v. 
 Storer, 03 Iowa 484. This rule has been adopted in a case where the 
 letter of acceptance was dropped in the letter box of the offerer at his 
 place of business, and had never reached the offerer. See Howard v. 
 Daly, 61 N. Y. 362. 
 
 1 Trevor v. Wood, 36 N. Y. 307 ; Minnesota Oil Co. v. Collier Lead 
 Co., 4 Dill. 431; Durkee v. Central Railway Co., 29 Vt. 127; Thome v. 
 Barwick, 16 Up. Can. C. P. 369; Marshiill v. Jamison, 42 Up. Can. Q. B. 
 120; Perry v. Mt. Hope Iron Co., 15 R. I. 66. 
 
 2 Lewis V. Browning, 130 Mass. 173. 
 
 46 
 
CH. III. J ASSENT. § 40 
 
 question that can arise in such cases is the question of fact 
 whether the person to whom or by whom the offer or ac- 
 ceptance was communicated, was the principal or some duly 
 authorized agent. This may at times prove to be very 
 difficult of proof, in consequence of the difficulty sometimes 
 experienced in recognizing voices. 
 
 The phonograph has not yet come into general use, and 
 hence it cannot be stated how far its general use will affect 
 the law in respect to the requirement of communication of 
 acceptances. The fact that the communication when made 
 will be in the spoken words of the principal or of his author- 
 ized agent, would be likely to class such communications as 
 personal. But on the other hand, the phonographic com- 
 munication may be transmitted by mail or express, and it 
 might fail to reach the parties. These questions will not 
 now require any settlement. 
 
 § 40. Right to retract offer. — Until the contract has 
 become complete by acceptance, no one is bound by .the 
 previous negotiations, unless there has been a binding con- 
 tract to leave the offer open for a stipulated time.^ Ordi- 
 narily, there is no complete contract, and the offer may be 
 withdrawn, although the offerer has agreed to leave the 
 offer open for acceptance for a stated- time. The offer may 
 be retracted, as long as there has been no acceptance. But , 
 in order that the offer may be retracted, the retraction must 
 be communicated to the offeree before he has accepted the 
 offer.2 Where the negotiations are conducted by the mail, 
 
 ^ See post, § 41, for a discussion of the question, when the contract 
 for au option is binding. 
 
 2 Cooke V. Oxley, 3 T. B. 653; Dickenson v. Dodds, 2 Ch. D. 463, C. 
 A. ; Stevenson v. McLean, 5 Q. B. D. 346 ; Byrne v. Van Tienhoven, 5 
 C. P. D. 344; Eoutledge v. Grant, 4 Bing. 653; Payne v. Cave, 3 T. E. 
 148; Head v. Diggon, 3 M. & B. 97; Burton «. Great Northern Railway 
 Co., 9 Ex. 507; Great Northern Railway v. Withani, L. R. 9 C. P. 16; 
 Smith V. Hudson, 6 B. & S. 431 ; 34 L. J. Q. B. 145 ; Taylor v. Wakefield, 
 6 E. &B. 765; Chicago and Great Eastern Railway Co. v. Dana, 43 N. 
 
 47 
 
§ 40 ASSENT. [CH. III. 
 
 the notice of retraction must be received by the offeree 
 before he has mailed his acceptance, for the contract ordi- 
 narily becomes complete when the letter of acceptance is 
 deposited in the mail.^ If the parties have agreed that the 
 contract does not become complete, until something else is 
 done or happens, as where it is agreed that the contract is 
 not binding until the letter of acceptance is received by the 
 offerer, or until the contract has been reduced to writing 
 and signed by the parties,^ the time of retraction is of 
 course extended until that is done which is required to com- 
 plete the contract. 
 
 If the offerer dies before acceptance, the offer is neces- 
 sarily revoked by his death, since a dead man cannot be- 
 come a party to a contract.* 
 
 Objection has been raised to the doctrine that a retraction 
 must be communicated to the offeree, before the offer can 
 be withdrawn, on the ground that the mental withdrawal of 
 the offer destroys that aggregatio mentium, which is said to 
 be necessary to every contract.* And this is the position 
 taken by the civilians ^ according to whom in such a case, 
 there is no sale, but if the offeree has relied to his loss upon 
 the completion of the contract, the offerer is bound to in- 
 
 Y. 240; Tayloe v. Merchants' Fire Ins. Co., 9 How. 390; Summers v. 
 Mills, 21 Tex. 77, 87 ; Hebb's Case, L. R. 4 Ex. 9. 
 
 1 Adams v. Lindsell, 1 B. & Aid. 681; Potter ». Saunders, 6 Hare 1; 
 Eskridge v. Glover, 5 Stew. & P. 264; Faulkner o. Heberd, 26 Vt. 462; 
 Dunlop V. Higgins, 1 H. L. C. 381 ; Beckwlth v. Cheever, 21 N. H. 41 ; 
 Household Fire Ins. Co. v. Grant, i Ex. D. 216, C. A.; Byrne v. Tien- 
 hoven, 5 C. P. D. 344; Stevenson «. McLean, 6 Q. B. D. 346; Harris' 
 Case, 7 Ch. 587; Chicago & Great Eastern Railway Co. v. Dana, 43 N. T. 
 240. 
 
 2 Governor, Guardians, etc., of the Poor of Kingston-upon-HulI v. 
 Fetch, 10 Ex. 610; 24 L. J. Ex. 23. 
 
 8 See Dickenson v. Dodds, 2 Ch. D. 475. 
 
 * Story on Sales, § 127. See McCuUoch v. Eagle Ins. Co., 1 Pick. 281 ; 
 Boston & Me. R. R. Co. v. Bartlett, 3 Cush. 224 ; Halleck v. Com. Ins. 
 Co., 2 Dutch. (N. J.) 268. 
 
 ^ Pothler Contrat de Vente, No. 32. 
 48 
 
CH. in. J ASSENT. § 41 
 
 demnify him for this loss. But the practical rule of the 
 American law, that an uncommunicated mental operation 
 has no legal existence, is a suflScient answer to this techni- 
 cal objection. 
 
 §41. When contract for option Is binding. — Very 
 often an agreement is made that the offer shall be left open 
 for acceptance for a stipulated time. This agreement is, 
 or is not, a binding contract, according to the presence or 
 absence of the essential elements of a contract. If the 
 agreement for the option is itself based upon a valuable 
 consideration, it is binding upon the offerer, but otherwise 
 it is nudum pactum, and can in no way affect the right of 
 retraction. The authorities state very generally that a 
 binding contract for an option for a given time prevents 
 any retraction of the offer during that time.^ And, very 
 likely, this statement would not ordinarily lead to any se- 
 rious error. But it would seem to be more consistent with 
 principle to hold that the binding contract to leave the offer 
 open does not prevent the retraction of the offer, since it is 
 idle to speak of an aggregatio menlium after the offer has 
 been withdrawn, and the retraction has been communicated 
 to the offeree. The civilians are right in holding that there 
 is no contract of sale in such a case. But the retraction of 
 the offer in such a case would be a breach of the contract 
 to leave the offer open for acceptance, and the offerer would 
 be liable for all damage which flows from his breach of this 
 contract. But he would not be liable for the breach of any 
 contract of sale, for there is no completed contract of sale. 
 The damages would be the same, whatever theory prevailed ; 
 but if the offeree asked for specific performance of tne con- 
 tract of sale, his right to it would depend upon the exist- 
 ence of a completed contract of sale. 
 
 1 See Cheny v. Smith, 3 Humph. 19; Eoutledge «. Grant, 3 C. &. P. 
 267; 4 Bing. 653; Cheny v. Cook, 7 Wis. 413; Dickenson v. Dodds, 2 Ch. 
 D. 463; School Directors v. Trefethren, 10 Bradw. 127. 
 
 4 49 
 
§ 43 ASSENT. [CII. III. 
 
 § 42. Retraction of acceptance. — It has been held in 
 Scotland, that if notice of the retraction of an acceptance is 
 received before, and simultaneously with, the receipt of the 
 notice of acceptance, the contract is not binding.^ But so 
 far as there has been any expression of judicial opinion 
 elsewhere, the English and American courts would hold the 
 contract to be complete when the letter or telegram of ac- 
 ceptance had been dispatched and deny the right to prevent 
 the enforcement of the contract by any subsequent retrac- 
 tion of the acceptance. 2 
 
 § 43. When assent not necessary. — The assent is never 
 necessary in implied and involuntary sales. For in all such 
 cases the transfer takes place by operation of law. Tlio 
 most common case is the transfer of property to the defend- 
 ant, in consequence of a recovery of damages in the action of 
 trover.' Some of the authorities have h'eld that an unsatis- 
 ,fied judgment in trover operates as a transfer of the title to 
 the property converted.* But the better opinion is that the 
 judgment must be satisfied, before the transfer is effected.' 
 The subject of involuntary sales is treated in a subsequent 
 chapter.® 
 
 1 Dunmore v. Alexander, 9 Shaw & Dunlop, 190. 
 
 2 Dicta of Lord Blackburn in Brogden v. Metropolitan Railway Co., 2 
 App. Cas. 691; of James, L. J., in Harris' Case, 7 Ch. 591; of Thesiger, 
 L. J., in Household Pire Ins. Co. v. Grant, 4 Ex. D. 219. But see, contra, 
 dictum of Bramwell, L. J., in Household Fire Ins. Co. v. Grant, i Ex. D. 
 235. See, also, contra, dictum of Cockburn, C. J., in Newcombe v. De 
 Eoos, 2 E. & E. 271. 
 
 ' Cooper V. Shepherd, 3 C. B. 266; Chinnery v. Viall, 5 H. &N. 288; 
 L. J. Ex. 180; Adams?). Boughton, 2 Str. 1078; Holmes «. Wilson, 10 A. 
 & E. 5037; Barnett v. Brandon, 6 M. & G. 640, note; Hepburn v. Sewall, 
 5 H. &. J. 211; Osterhout v. Roberts, 8 Cow. 43; Marader v. Cornell, 62 
 N. Y. 220; Thayer v. Manley, 73 N. Y. 309; Eox v. Prichett, 34 N. J. L. 
 13; Lovejoy v. Murray, 3 Wall. 16; Brady v. Whitney, 24 Mich. 154. 
 
 * Floyd V. Browne, 1 Eawle, 121 ; Marsh v. Pier, 4 Eawle, 287. 
 
 * Brinsmead v. Harrison, L. R. 6 C. P. 584; Ex parte Drake, 5 Ch. D. 
 866, C. A.; White v. Philbrick, 5 Greenl. 152. 
 
 « See post, Chap. XVII. 
 50 
 
CHAPTEE IV. 
 
 THE PRICE. 
 
 Section 45. Necessity of a price — Inciirect stipulation of the price. 
 
 46. Determination of price referred to valuers. 
 
 47. When price is provided by Implication of law. 
 
 § 45. Necessity of a price — Indirect stipulation of 
 the price. — As it has been explained already/ a sale is a 
 contract for the absolute transfer of personal property for 
 a price. The provision of a price in some way or form 
 is therefore essential to the character of a sale, and it dis- 
 tinguishes a sale from a gift. So important an element of 
 a sale is the price, that a failure to stipulate or agree upon 
 the price, will always prevent the completion of a sale, 
 unless the goods have been delivered to the vendee,^ or 
 unless the buyer has prevented the determination of the 
 price, when the law will imply the price to be what the 
 thing is reasonably worth. ^ 
 
 But the price need not be directly stipulated. The 
 stipulation may be indirect and descriptive, as where it is 
 agreed to be " ten cents a bushel less than the Milwaukee 
 price on any future day the vendor might name." In such 
 a case the title does pass before the naming of the day.* 
 
 1 See ante, § 1. 
 
 2 .Wittowsky ». Wasson, 71 N. C. 451 ; Bigley v. Risher, 63 Pa. St. 152 ; 
 Thurnellt). Balbimie, 2 C. B. 786; Vickers v. Vickers, 4 Eq. 529; Wilkes 
 {,. Davis, 3 Mer. 507; Cooper v, Shuttleworth, 25 L. J. Ex. 114; Milnes 
 0. Gery, 14 Ves. 400; Fuller v. Bean, 34 N. H. 290; Halton o. Moore, 26 
 Ark. 382. 
 
 ' Humaston v. Am. Tel. Co., 20 Wall. 20; Smyth v. Craig, 3 Watts & 
 S. 14; Clark v. Westroppe, 18 C. B. 765; 25 L. J. C. P. 287. 
 
 * McCannell v. Hughes, 29 Wis. 537. See, also, Cunningham v. 
 
 51 
 
§ 47 THE PEICE. [CH. IV. 
 
 If the parties should disagree in their testimony what 
 was the price agreed upon, it is competent to show which 
 of the parties was right, by proving the real value of the 
 thing. ^ 
 
 § 46. Determination of price referred to valuers. — 
 
 It is sometimes agreed between the parties that the deter- 
 mination of the price should be left to third persons, who 
 are charged with the estimation of the value and price of 
 the goods. This satisfies the requirement of the law, and 
 until the price is determined there is no sale, unless the 
 parties have executed the contract, and delivered the goods, 
 when the law will imply a promise to pay what is the rea- 
 sonable worth of the goods, ^ and so, also, where the buyer 
 prevented the valuation of the goods, he will be required 
 to pay what they are reasonably worth. ^ 
 
 § 47. When price is provided by implication of law. — 
 
 Whenever the parties to the contract of sale have failed 
 for any reason to, stipulate the price, and in every other 
 respect the contract of sale is complete, the deficient ele- 
 ment will be supplied by the implication of law that the 
 parties had agreed to pay what the goods were reasonably 
 worth. And the reasonable value is ordinarily determined 
 
 Brown, 44 Wis. 72 ("for the same as similar articles may bring after- 
 ward at auction") ; Ames v. Quimby, 96 U. S. 324; McBride v. Silver- 
 thorne, 11 Up. Can. Q. B. 545. 
 
 J Bennell B.Kimball, 5 AUen, 365; Parker d. Cabnan, 10 Allen, 82; 
 Bradbury v. Dwight, 3 Met. 31; Saunders v. Clark, 106 Mass. 331; 
 Brewer v. Housatonic R. E. Co., 107 Mass. 277; Norris v. Spofford, 127 
 Mass. 85; Johnson v. Harder, 45 Iowa, 677. 
 
 2 Brown v. Bellows, 4 Pick. 189 ; Norton v. Gale, 95 lU. 533 ; Fuller v. 
 Bean, 34 N. H. 290; Hultonu. Moore, 26 Ark. 382; Thumell v. Balbirnle, 
 2 C. B. 786; Vickers v. Vickers, 4 Eq. 629; Cooper v. Shuttleworth, 25 
 L. J. Ex. 114; Milness v. Gery, 14 Ves. 400. 
 
 s Humaston v. Am. Tel. Co., 20 Wall. 20; Smyth v. Craig, 3 Watts & 
 S. 14; Clark v. Westroppe, 18 C. B. 765; 25 L. J. C. P. 287. 
 
 52 
 
CH. IV. J THE PRICE. § 47 
 
 by the market price at the time ernd, place of delivery.' 
 But when the market is shown to be unduly inflated, some 
 other method of determining the reasonable worth of the 
 goods must be adopted.^ It was once doubted whether an 
 executory contract of sale was binding on the parties, 
 where the parties had not agreed upon a price.* But it is 
 now the established rule that the executory, as well as the 
 executed, contract of sale is binding, notwithstanding there 
 has been no express agreement as to the price, the law in 
 all such cases implying that the parties had agreed to pay 
 the value of them.* 
 
 ' McEwen v. Morey, 60 111. 32; Fenton v. Braden, 2 Cranch C. C. 550, 
 
 2 Kountz V. Klrkpatrick, 72 Pa. St. 376 ; In Acebal v. Levy, 10 Bing. 
 376, the court say : " Such a price as the jury upon the trial of the cause 
 shall under all the circumstances, decide to be reasonable. This price 
 may or may not be agreed with the current price of the commodity at 
 the port of shipment, at the precise time when such shipment is made. 
 The current price of the day may be highly unreasonable from acci- 
 dental circumstances, as on account of the commodity having been pur- 
 posely kept back by the vendor himself, or with reference to the price 
 at other ports in the immediate vicinity, or from various other causes." 
 
 ' Acebal v. Levy, 10 Bing. 376. 
 
 * Hoadly v. McLaine, 10 Bing. 482; Valpy v. Gibson, i C. B. 837; 
 Taft V. Travis, 136 Mass. 95; McEwen v. Morey, 60111. 32; James ». 
 Muir, 33 Mich. 224. 
 
 53 
 
CHAPTEE V. 
 
 THE THING SOLD. 
 
 Section 60. Sale of what has ceased to exist. 
 
 51. Sale of thing not yet existing or not yet owned by the 
 
 vendor. 
 
 52. Sale of a thing in potential existence. 
 
 53. The rule in equity. 
 
 § 50. Sale of what has ceased to exist There cannot 
 
 be a sale without there being a thing sold. Hence if one 
 contracts to sell what has ceased to exist, either at the 
 time when the contract was made/ or before the time when 
 the contract was to be executed,^ there cannot be any valid 
 contract of sale, executory or executed. 
 
 § 51. Sale of thing not yet existing or not yet owned by 
 the vendor. — For the same reason, there can be no actual 
 sale, i.e., an executed contract of sale, at law, where the 
 thing sold does not yet exist, or is not yet acquired by the 
 vendor.^ In most of the cases, in which the question arises, 
 
 1 Strickland v. Turner, 7 Ex. 208; Hastie «. Couturier, 9 Ex. 102; s.c. 
 
 5 H. L. C. 673; Barr v. Gibson, 3 M. & W. 390; Smith v. Myers, L. R. 5 
 Q. B. 429; 7 Q. B. 139; Cochrane v. Willis, 1 Ch. 58; 35 L. J. Ch. 36. 
 
 2 Dexter v. Norton, 47 N. Y. 62; Young v. Bruces, 5 Litt. 324; Harris 
 V. Nicholas, 5 Munf. 483; Carpenter v. Stevens, 12 Wend. 589. 
 
 s Beed v. Blades, 6 Taunt. 212, 222; Lunn v. Thornton, 1 C. B. 379; 
 Brown v. Bateman, L. R. 2 C. P. 272; Gittings v. Nelson, 86 111. 591; 
 Chesley v. Joselyn, 7 Gray, 489; Jones v. Richardson, 10 Met. 481; 
 Moody V. Wright, 13 Met. 17; Head v. Goodwin, 37 Me. 182; Emerson 
 V. European, etc., R. B. Co., 67 Me. 387; Cressy v. Sabre, 17 Hun, 120; 
 Barnard v. Eaton, 2 Cush. 295 ; Codman v. Freeman, 3 Cush. 306 ; Chapin 
 V. Cram, 40 Me. 661; Gale©. Burnell, 7 Q. B. 850; Hope v. Hayley, 5 E. 
 
 6 B. 830; 25 L. J. Q. B. 156; Carr v. Allatt, 27 L. J. Ex. 385; Congreve 
 r. Evetts, 10 Ex. 298; 23 L. J. Ex. 273; Chidell ii. Gallsworthy, 6 C. B. 
 
 54 
 
CH. v.] TUB THING SOLD. § 52 
 
 there is a contest between the vendee and some attachins 
 creditor or mortgagee of the vendor. But, although there 
 are a few authorities, which maintain that, as between the 
 parties, the sale is complete, and the title passes at law to 
 the vendee, as soon as the subject of the sale comes into 
 being or is acquired by the vendor,' the better opinion is, 
 that no title passes in any such case, unless the executory 
 contract of sale becomes executed by the subsequent ac- 
 quisition of the possession by the vendee, and before the 
 rights of third persons have intervened. In that case, the 
 title is good against third persons, as well as against the 
 vendor himself.'^ This is in conformity with the general 
 rule, that the non-existence of the thing does not affect the 
 sale, as an executory contract, and that the executory con- 
 tract may be enforced as soon as the thing sold comes into 
 being or is acquired by the vendor.' 
 
 § 52. Sale ot a thing in potential existence. — But it 
 has been very generally held that where a thing is in poten- 
 tial existence, as, for example, all the wool from a flock of 
 sheep, or a growing crop, a iiresent sale with present trans- 
 fer of title may be made of it, even as to third persons, 
 
 (n. s.) 471 ; Noakes v. Nicholson, 34 L. J. C. P. 273; 19 C. B. (n. s.) 290; 
 Otis V. Lill, 8 Barb. 102; Gardner v. McEwen, 19 N. Y. 123; Milliman v. 
 Neber, 20 Barb. 37; Kice v. Stone, 1 Allen, 569; 'WUliams v. Briggs, 11 
 R. I. 476; Hunter j>. Bosworth, 43 Wis. 583; Hamilton v. Kogers, 8 Md. 
 301 ; Wriglit v. Bircher, 5 Mo. App. 327. See post, § 230. 
 
 1 Allen V. Goodnow, 71 Me. 420; Frazier v. Hilliard, 2 Strobh. 309; 
 Deering v. Cobb, 74 Me. 334. 
 
 2 Cooki). Corthell, 11 E. I. 482; Kowley v. Eice, 11 Met. 333; Eowan 
 V. Sharp's Eifle Co., 29 Conn. 283; Chyuoweth v. Tenney, 10 Wis. 397; 
 Chase v. Denny, 130 Mass. 566 ; Chapman v. Weiner, i Ohio St. 481 ; 
 Walker v. Vaughan, 33 Conn. 577. 
 
 3 Stanton v. Small, 3 Saudf. 230; Casard v. Hinman, 1 Bosw. 207; 
 Tylers. Barrows, 6 Eoberts, 104; Clarke i). Foss, 7 Biss. 641; Reed «. 
 Blades, 6 Taunt. 212, 222; Lunn i). Thornton, 1 C. B. 379; Hibblewhite 
 1). Morine, 5 M. &W. 462; Mortimer u. McCallan, 6 M. & W. 68; Phillips 
 i>. Ocmnlgee Mills, 55 Ga. 633; Appleman v. Fisher, 34 Md. 551. Whether 
 such contracts are void as wagers, see post, Chap. XX. 
 
 55 
 
§ 53 THE THING SOLD. [CH. V. 
 
 having claims against the vendor.^ There are many author- 
 ities which hold that the title can pass, even as to third 
 persons, especially where possession is taken before the 
 rights of third persons can intervene, where the sale was 
 made of a crop, before it was even sown.^ So, also, it has 
 been held that the sale of the unborn young of animals is 
 valid, although made before pregnancy.^ 
 
 § 53. The rule in equity. — But in the court of equity, 
 as long as the thing may be identified by the description 
 contained in the bill of sale, the contract is valid, although 
 the thing sold may not be even in potential existence or in 
 potential possession of the vendor. In equity the title will 
 pass to the vendee, as soon as the property comes into 
 existence or into the possession of the vendor.* Since 
 
 1 14 Viner's Abr., Tit. Grant, p. 50; Grantham v. Hawley, Hob. 132; 
 Kobinsonc. Macdounel, 5 M. & S. 228; Wood and Foster's Case, 1 Leon. 
 42; Cotton v. Willoughby, 83 N. C. 75; Sanborn v. Benedict, 78 111. 309; 
 Hansen v. Dennlson, 7 Bradw. 73; Stephens v. Tucker, 65 Ga. 543; 
 Wilkinson v. Ketler, 69 Ala. 435. See Tiedeman's Real Property, § 799, 
 for a discussion of the question, whether the sale of a growing crop is 
 the sale of real or personal property. See, also, post, § 59. 
 
 2Rawlings v. Hunt, 90 N. C. 270; Watkins v. Wyatt, 9 Baxt. 250 ; 
 Conderraan v. Smith, 41 Barb. 404; Heald v. Builders' Ins. Co., Ill 
 Mass. 38; Arques v. Wasson, 51 Cal. 620; Moore v. Byram, 10 S. C. 452; 
 Parker v. Jacobs, 14 S. C. 112; Hurst v. Bell, 72 Ala. 336; Van Hoozer 
 V. Cory, 34 Barb. 9; Smith v. Atkins, 18 Vt. 461; Headrick u. Brattain, 
 63 Ind. 438. But see, contra, Hutchinson v. Ford, 9 Bush. 318; Milli- 
 man v. Nahm, 20 Barb. 38 (overruled) ; Comstock v. Scales, 7 Wis. 159; 
 Collier v. Faulk, 69 Ala. 58 (overruled); Redd v. Burrus, 68 Ga. 574; 
 Gittings V. Nelson, 86 111. 59a. 
 
 8 Hall V. Hall, 48 Conn. 250; Fonville v. Casey, 1 Murphy (N. C), 389; 
 McCarty ». Blevins, 5 Yerg. 195; Sawyer v. Genish, 70 Me. 264. 
 
 * Holroyd v. Marshall, 10 H. L. C. 191 ; Reeve v. Whitmore, 4 De G. 
 & J. & S. 1; 33 L. J. Ch. 63; Bolding v. Reed, 3 H. & C. 955; 34 L.-J. 
 Ex. 212; Mitchell v. Winslow, 2 Story, 630; Pennock i;. Coe, 23 How. 
 117; Benjamin v. Elmira R._E. Co., 49 Barb. 441; Phillips i. Winslow, 
 18 B. Mon. 431 ; Pierce v. Milwaukee R. R. Co., 24 Wis. 651 ; Smithurst 
 V. Edmunds, 14 N. J. Eq. 408; Williams v. Winsor, 12 R. I. 9; Apperson 
 V. Moore, 30 Ark. 66; Brett v. Carter, 2 Low. 458; Morrill v. Noyes, 56 
 Me. 458; Philadelphia, &c., Co. v. Woelpper, 64 Pa. St. 366; Sillers v. 
 56 
 
CH. v.] THE THING SOLD. § 53 
 
 these contracts only operate as sales in equity, it is well 
 understood that they cannot prevail against third parties 
 who have acquired rights in the property before the 
 possession has been acquired by the vendee and without 
 notice of the equitable sale. But in England, by a late 
 statute, the equity rule is now applied in law, as well as in 
 equity.* 
 
 As already stated, in all such cases of equitable sales, 
 the thing sold must be capable of identification by the de- 
 scription of it in the contract of sale.^ 
 
 Lester, 48 Miss. 513; Barnard i;. Norwich, &c., B. B. Co., 4 ClifE. 351; 
 McCaffrey v. Woodln, 65 N. Y. 459 ; Butt v. Ellett, 19 Wall. 544. But 
 see, contra, Plielps v. Murray, 2 Tenn. Ch. 746; Hunter v. Bosworth, 
 43 Wis. 683 ; Case v. Fish, 58 Wis. 56. 
 
 ' See Lazarus v. Audrade, 5 C. B. Div. 318 ; Leatbam v. Amor, 47 L. 
 J. Q. B.58I; 38L. T. B. 785. 
 
 " In re Count DeEpinevill, 20 Ch. Div. 758 ; Pennington v. Jones, 57 
 Iowa, 37. 
 
 57 
 
CHi^PTEK VT. 
 
 THE STATUTE OF FRAUDS, IN RESPECT TO SALES. 
 
 Section 55. General provision and efEect. 
 
 66. Executory and executed contracts of sale distinguished. 
 
 67. Statute applies to all forms of sales — Auction sales. 
 
 68. Contracts of sale distinguished from contracts for work and 
 
 labor done and materials found. 
 
 59. What are goods, wares and merchandise — Incorporeal 
 
 property — Fixtures — Annual and perennial crops — Fmc- 
 tus naturaUs. 
 
 60. Statutory limit of value. 
 
 61. When does the contract for sale of goods reach or exceed 
 
 the limit. 
 
 62. The conditions of validity under the statute of frauds. 
 
 63. Effect of compliance with requirement of acceptance and re- 
 
 ceipt — Limit as to time. 
 
 64. Proof and burden of proof, of acceptance and receipt. 
 
 65. Acceptance and receipt by agent. 
 
 66. Acceptance and receipt distinguished. 
 
 67. What acts constitute acceptance. 
 
 68. Whether inspection of goods is necessary to constitute ac- 
 
 ceptance — Conditional acceptances. 
 
 69. What constitutes a receipt of the goods. 
 
 70. Acceptance and receipt of part of the goods' — Samples. 
 
 71. Earnest or part payment. 
 
 72. Memorandum or note in wntingrequired — Time of execution. 
 
 73. By whom should note be made — Undisclosed principal. 
 
 74. To whom note should be addressed. 
 
 75. The form of the memorandum — Separate pieces of paper. 
 
 76. What the memorandum should contain — Parties — Subject 
 
 matter — Terms — Consideration — Price. 
 
 77. Signature of the party to be charged. 
 
 78. Agent duly authorized. 
 
 79. Brokers' bought and sold notes. 
 
 80. Principal's name need not be signed. 
 
 §55. General provision and effect Independently 
 
 of statute, a contract of sale of personal property is not re- 
 
 58 
 
CH. VI. J STATUTE OF FRAUDS, IX EKSPECT TO SALES. § 56 
 
 quired to be reduced to writing in order to be valid. But 
 the statute of frauds requires the contracts, referred to in 
 the statute, to be manifested or proved by some instrument 
 of writing; and one of the clauses, viz. : the seventeeth 
 section of the original English statute, makes special refer- 
 ence to " contracts for the sale of goods, wares and mer- 
 chandise." The section, as it appeared in the original 
 statute, and which is substantially reproduced in each of the 
 American copies of the same, is as follows: " No contract 
 for the sale of any goods, wares or merchandises, for the 
 price of ten pounds sterling, or upwards, shall be allowed 
 to be good, except the buyer shall accept part of the goods 
 so sold, and actually receive the same, or give something in 
 earnest to bind the bargain, or in part payment, or that 
 some note or memorandum in writing of the said bargain be 
 made, and signed by the parties to be charged by such con- 
 tract, or their agents thereunto lawfully authorized." 
 
 Although the object of the statute of frauds was a very 
 simple one," the inconveniences occasioned to business men 
 by the requirements of the statute developed an intense 
 opposition to any liberal construction of it; and the 
 result has been to cover up the plain meaning of the statute 
 by an overwhelming amount of close and technical inter- 
 pretation, the purpose of which, more or less concealed or 
 disguised, is to minimize its operation. This general state- 
 ment is necessary to an appreciation of the points which 
 are raised in the interpretation of the statute in general, and 
 especially in the interpretation of the seventeenth section. 
 
 § 56. Executory and executed contracts of sale dis- 
 tinguished. — The first question to arise in the interpreta- 
 tion of the seventeenth section of the statute of frauds, is 
 " what contracts are included in the words ' contracts for 
 the sale of goods, wares and merchandise,' " so as to be 
 brought within the operation of the statute ? And the first 
 effort to minimize the operation of the statute was made in 
 
 59 
 
§ 57 STATUTE OF FRAUDS, IN KESI'ECT TO SALES. [CH. VI. 
 
 distinguishing between executory and executed contracts of 
 sale, holding that the statute applied only to those few 
 contracts of sale, in which the title passed immediately, 
 without delivery, or in which an immediate performance 
 was anticipated by the parties, and that the statute did not 
 apply to agreements for the future delivery of goods, wares, 
 and merchandise. 1 These English cases have been opposed 
 by others,^ and, finally, the dispute was settled for England, 
 by " Lord Tenterden' s act," ^ which provides that the sev- 
 enteenth section of the statute of frauds " 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." 
 
 This English heresy, as it might be called, never obtained 
 a foothold in this country, and the American courts have 
 uniformly held the statute to apply to executory contracts 
 for future delivery, as well as to present sales.* So that, 
 it may now be said that the 
 
 § 57. Statute applies to all forms of sales of goods, 
 wares and merchandise. It has thus been held that it 
 applies to auction sales, as well as to private sales.^ 
 
 1 Towers v, Osborne, 1 Strange, 506; Clayton v. Andrews, 4 Burr. 
 2101 ; Groves ». Buck, 3 M. & S. 178. 
 
 2 Bondeau v. Wyatt, 2 H. BJ. 63; Cooper v. Elston, 7 T. R. 14; Gar- 
 bntt V. Watson, 7 T. E. 14. 
 
 s 9 Geo. IV. ch. 14, s. 7. 
 
 * Newman v. Morris, 4 H. & McH. 221; Bennetts. Hull, 10 Johns. 364; 
 Hlghtc. Eipley, 19 Me. 137; Edwards v. Grand Trunk R. R. Co., 48 Me. 
 379; Carman v. Smick, 16 N. J. L. 262; Finney o. Apgar, 31 N. J. L. 270; 
 Jackson ». Covert, 6 Wend. 139 ; Ide o. Stanton, 16 Vt. 686; Atwateru. 
 Hough, 29 Conn. 613; Crookshank v. Burrell, 18 Johns. 58; Cason v. 
 Cheely, 6 6a. 664; Waterman v. Meigs, 4 Cush. 497. 
 
 » Davis V. Rowell, 2 Pick. 64; Kenworthy v. Schofleld, 2 B. & C. 945; 
 60 
 
CH. VI. J STATUTE OF TEAUDS, IN RESPECT TO SALES. § 56 
 
 § 58. Contracts of sale distinguished from contracts 
 for work and labor, and materials found. — In the further 
 effort to minimize the operation of the statute of frauds, it 
 has been held in England and in this country, that the 
 seventeenth section of the statute did not apply to contracts 
 for work and labor, and materials found. And wherever it 
 was possible to hold a contract to be a contract for work 
 iind labor and materials found, instead of a contract for 
 the sale of goods, this was done, in order to take the con- 
 tract out of the statute. The earlier authorities in England 
 seem to hold that every contract for the future delivery 
 of a thing not yet in existence, was a contract for work 
 and labor, and therefore not within the statute of frauds.' 
 One other authority held that if the work and labor was 
 of the essence of the contract, it was a contract for work 
 and labor done, and not within the operation of the statute.^ 
 In still another case, it was held that where the thing 
 would never have been manufactured, but for the order 
 which was given, it was a contract for work and labor, and 
 not a contract for the sale of the thing.* There are other 
 English authorities, which introduced variations of the 
 same doctrine.* But it is not necessary to give these En- 
 glish cases any minuter examination, since all prior decis- 
 ions have been overruled by the case of Lee v. Griffin.^ In 
 that case, the action was on a contract made by a subse- 
 quently deceased person with a dentist for the manufacture 
 
 Davis V. Robertson, 1 Mill, 71; Hinde v. WMtehouse, 7 East, 558; Mor- 
 ton V. Dean, 13 Met. 385; Johnson v. Buck, 35 N. J. L. 338; Sanderlin v. 
 Trustees, R. M. Charlt. 651 ; Pike v. Balch, 38 Me. 302. It was once 
 doubted by Lord Mansfield, in Simon v. Motivos, 3 Burr. 1921; 1 W. Bl 
 599. 
 
 1 Rondeau v. Wyatt, 2 H. Bl. 63; Towers v. Osborne, 1 Strange, 506; 
 Clayton V. Andrews, i Burr. 2101; Grafton v. Armitage, 2 C. B. 336; 15 
 L. J. C. P. 20. 
 
 = Clay V. Yates, 25 L. J. Ex. 237; 1 H. & N. 73. 
 
 3 GarbutB. Watson, 5B. &Ald. 613. 
 
 * See Smith ». Summary, 9 B.&C. 568; Atkinsons. Bell, 10B.&C.277. 
 
 ' 30 L.J. Q. B. 252; 1 B. & S. 272. 
 
 Gl 
 
§ i8 STATUTE OF FRAUDS, IN' EESPECT TO SALES. [CH. VI. 
 
 of 11 set of false teeth, which were not delivered, or tendered, 
 until after the death of the person ordering them. The 
 action was brought for the price agreed upon against the per- 
 sonal representatives, and the defense was that the contract 
 was void under the statute of frauds. The plaintiff main- 
 tained that the contract was not within the statute of 
 frauds, because it was essentially a contract for the work, 
 labor and sliill of the plaintiff, and that his furnishing of 
 the materials was a secondary and unimportant incident. 
 The court, however, held that it was a contract for the 
 sale of goods, wares and merchandise, and was consequently 
 within the statute. ^ 
 
 In America, the question has not yet attained to a definite 
 and satisfactory solution. Two divergent opinions are prev- 
 alent in this country, but neither of them conforms to the 
 modern English rule.^ Without undertaking a minute ex- 
 
 1 Crompton, J., said: "When the contract is such that a chattel is 
 ultimately to be delivered by the plaintiff to the defendants when it has 
 been sent, then the cause of action is goods sold and delivered. * * * 
 I do not agree with the proposition, that wherever skill is to be exercised 
 in carrying out the contract, that fact makes it a contract for work and 
 labor, and not for the sale of a chattel. It may be, the cause of action is 
 for work and labor when the materials supplied are merely auxiliary, as 
 in the case put of attorney or printer (who furnish paper and ink) . But, 
 in the present case, the goods to be furnished, viz. : the teeth, are the 
 principal subject-matter; and the case is nearer that of a tailor, who 
 measures for a garment, and afterwards supplied the article fitted." 
 Blackburn, J., said: " If the contract be such that it will result in the 
 sale of a chattel, the proper form of action, if the employer ref u ses to 
 accept the article when made, would be for not accepting. But if the 
 work and labor be bestowed in such a manner, as that the result wou'd 
 not be anything which could properly be said to be the subject of sale, 
 then an action for work and labor is the proper remedy. * " * I do 
 not think that the relative value of the labor and of the materials on 
 which it is bestowed can in any case be the test of what is the cause of 
 action; and that if Benvenuto Celiini had contracted to execute a work 
 of art for another, much as the value of the skill might exceed that of 
 the materials, the contract would have been nevertheless for the sale of 
 a chattel." 
 
 2 A few American cases have, however, adopted the rule of Lee v. Grif- 
 
 62 
 
CH. VI. j STATUTE OF FRAUDS, IN RESPECT TO SALES. § 58 
 
 planation of the varinnce between the earlier and later New 
 York cases, it may be safely said that in New York, the 
 contract is held to be one for the sale of goods, where the 
 contract calls for the future manufacture and delivery of a 
 commodity, where it is not to be manufactured by the 
 vendor. But if the vendor's skill is bargained for, it is a 
 contract for work and labor, and materials found, and 
 therefore not within the statute of frauds ^ But while the 
 facts of some of the earlier cases do not conflict with this 
 modern ruling,^ yet thei-e are some cases, which, it seems, 
 cannot be reconciled at all.^ The Maryland court has fol- 
 lowed the earlier New York rule.* 
 
 The other prevalent American doctrine is that if the con- 
 tract calls for a special manufacture of a thing, some- 
 thing which the vendor does not keep in stock for his 
 customary ti'ade, and especially, where it cannot be sold 
 generally, then it is a contract for work and labor, and 
 materials found, and the contract is not within the statute 
 of frauds.^ But if the thing ordered is what the vendor 
 
 fin. See Hardell v. McClure, 1 Chandl. 271 ; Brown v. Sanborn, 21 Minn. 
 402; Prescott v. Locke, 51 N. H. 94. It has been expressly adopted lu 
 the Canadian case of Wolfender v. Wilson, 33 Up. Can. Q. B. 442. 
 
 ^ Downs V. Boss", 23 Wend. 270; Passaic Mfg. Co.i). Hoffman, 3 Daly, 
 495; Miller v. Fitzgibbons, 9 Daly, 505; Joy v. Schloss, 12 Daly, 533; 
 Seymour B.Davis, 2 Sandf. 239; Smith v.'S. Y. Cen. R. R. Co., 4 Keyes, 
 180; Fitzsimmons v. Woodruff, 1 N. Y. S. C. 3; Bates v. Coster, 3 N. Y. 
 S. C. 680; 1 Hun, 400; Kellogg v. Witherhead, 4 Hun, 273; Cooke u. 
 Millard, 5 Laws. 243 ; 65 N. Y. 352 ; Flint v. Corbitt, 6 Daly, 429. 
 
 2 See Bronson a. Wiman, 10 Barb. 406; Donovan v. Wilson, 26 Barb. 
 138; Parker v. Schenck, 28 Barb. 38; Mead v. Case, 33 Barb. 202; Par- 
 sons 1). Louck, 4 Roberts, 216 ; 48 N. Y. 17 ; Deal v. Maxwell, 51 N. Y. 652. 
 
 2 See Crookshank u. Burrell, 18 Johns. 58; Sewall v. Fitch, 8 Cow. 215; 
 Robertson v. Vaughan, 5 Sandf. 1. 
 
 * Eichelberger w. McCauley, 5 H. &J. 218; Bentch v. Long, 27 Md. 
 188. 
 
 5 Mixer ». Howarth, 21 Pick. 205 ; Spencer v. Cone, 1 Met. 283 ; God- 
 dard ». Binney, 115 Mass. 450; Dowling v. McKenny, 124 Mass. 480; 
 Finney v. Apgar, 31 N. J. L. 271; Phipps v. McFarlane, 3 Minn. 109; 
 Meincke v. Folk, 55 Wis. 427; Right v. Ripley, 19 Me. 137; Abbott©. 
 
 63 
 
§ 58 STATUTE OF FRAUDS, IN EESPECT TO SALKS. [CH. VI. 
 
 ordinarily sells, and it has not been specially prepared for 
 the vendee, particularly where it can be easily disposed of 
 by sale to others, then the contract is one for the sale of 
 goods, and is within the operation of the statute.^ 
 
 The American editor of Benjamin on Sales (Mr. Bennett) 
 advances the opinion that the rule in Lee v. Griffin may be 
 accounted for by the statute of 9 Geo. IV., known as "Lord 
 Teaterden's act," which has been given in a previous para- 
 graph,^ and that the absence of such a statute in the United 
 States explains the existence of a different rule in this 
 country.^ It is not difficult to point out the fallacy of this 
 conclusion. The great difficulty to be overcome, in the 
 effort to get this class of cases out of the operation of the 
 statute of frauds, is to satisfactorily explain how the title 
 to the manufactured article becomes vested in the person 
 who orders it, without there being a sale or a gift. It is 
 out of the question to call the transaction a gift, for it is 
 based upon a valuable consideration. And whether the 
 thing ordered is suitable only for the special purpose of the 
 person who orders it, as in the case of a set of false teeth, 
 or it can be utilized to the same advantage by any pur- 
 chaser, in every case of this kind there must be a sale of 
 something, in order that the manufactured article may be- 
 
 Gilchrlst, 38 Me. 260; Crockett v. Scribner, 64 Me. 447; Allen v. Jarvis, 
 20 Conn. 38; Bennett v. Nye, i Greene (Iowa), 410; Partridge ». Wilsey, 
 8 Iowa, 459; Brown ». Allen, 35 Iowa, 306. In Iowa, this rule has been 
 settled and adopted by statute. See, also, Bird v. Muhlinbrink, IBich 
 199; Gadsden v. Lance, 1 McMul. Eq. 87; Suber v. Pulling, 1 S. C. 273; 
 Rentch v. Long, 27 Md. 188; Eichelberger v. McCauIey, 5 Harr. & J. 213; ' 
 Woodford v. Patterson, 32 Barb. 630; Whitehead ». Boot, 2 Met. (Ky.) 
 584; O'Neill v. N. Y., etc., Co., 3 Nev. 141. 
 
 1 Gardner v. Joy, 9 Met. 177; Lamb v. Crafts, 12 Met. 353; Waterman 
 ». Meigs, 4 Cush. 497 ; Clark u. Nichols, 107 Mass. 547 ; May v. Ward, 134 
 Mass. 127; Edwards v. Grand Trunk Railway, 48 Me. 379; 54 Me. 105; 
 Ellison V. Brigham, 38 Vt. 64; Atwater w. Hough, 29 Conn. 609; Sawyer 
 V. Ware, 36 Ala. 675. 
 
 2 See ante, § 56. 
 
 ' Benjamin on Sales, Ed. 1888, Bennett's note, pp. 103, 104. 
 64 
 
CH. VI. J STATUTE OF FRAUDS, IN RESPECT TO SALES. § 58 
 
 come the property of the one who ordered it. If he fur- 
 nished the materials, then undoubtedly, the increase in the 
 value of the materials through the bestowal of labor and 
 skill would necessarily accrue to the owner of the materials, 
 without any sale. But if the materials are furnished also 
 by the one who expends the labor, since the person order- 
 ing owned neither the labor nor the materials, in order that 
 he may acquire the title to the manufactured article, it 
 must have been transferred to him by the manufacturer ; 
 and since the transfer was for a valuable consideration, it 
 was nothing else than a sale. It is true that there may 
 have been a sale of the materials first, and secondly, a con- 
 tract for the work and labor ; and the statute may thus be 
 avoided, where the cost of materials was below the amount 
 mentioned in the statute as the minimum value of the goods, 
 in order that the statute may operate. But when one 
 orders a set of false teeth from the dentist, a pair of shoes 
 from the shoemaker, or a suit of clothes from the tailor, 
 he does not fir.'^t buy the materials, and then contract for 
 the work and labor. The single subject-matter of the con- 
 tract, is the set of teeth, the pair of shoes, or the suit of 
 clothes. To hold otherwise is to do violence to the jilain 
 intentions of the parties. 
 
 It was claimed that this doctrine would be carried to the 
 extreme of absurdity, if it were held to be a contract for 
 the sale of goods where an attorney agreed to write up a 
 deed, or the printer to print a book, because he furnished 
 the paper and ink which were used in its execution. And 
 these transactions were conceded to be contracts for work 
 and labor done, on the principle de minimis non curat lex.^ 
 
 I Benjamin on Sales, § 107. See Blackburn, J., in Lee v. Griffln, 30 
 L.J.Q.B.2o2; 1B.&S.272. Martin,B.,inClayi). Yates, 25 L. J. Ex.237; 
 1 H. &N. 73, said: " What is the present case? The defendant having 
 ■written a manuscript, takes it to the printer to have it printed for him. 
 What does he intend to be done? He intends that the printer shall use 
 his types, and that he shall set them up by putting them in a frame ; that 
 
 65 
 
§ 5d STATUTE OF IRAUDS, IN RESPECT TO SALES. [CH. VI. 
 
 But the question, even in these cases, remains to be an- 
 swered, how did the person ordering the deed or the book 
 acquire title to the deed and book respectively. 
 
 It may have been unnecessary, and perhaps unwise, to 
 include this kind of contracts within the operation of the 
 statute of frauds. But the reasonable construction of the 
 statute would necessarily include them. 
 
 § 59. What are goods, wares, and mercliandise — In- 
 corporeal property — Fixtures — Annual and perennial 
 crops — Fructus naturales. — In the further attempt to 
 limit the operation of the statute of frauds, the English 
 courts have held that this section of the statute of frauds 
 does not apply to incorporeal property, such as shares of 
 stocks, accounts, choses in action, and the like, because 
 these things cannot be called goods, wares and merchandise, 
 the conclusion of the courts being that the statute has 
 reference only to corporeal personal property.* But a 
 broader rule is adopted in the United Slates, where it is 
 held that any kind of movable chattel is comprehendeil 
 under the term "goods, wares and merchandise," and 
 therefore within this section of the statute of frauds, 
 whether it is corporeal or incorporeal. And the rule has 
 been applied to a variety of incorporeal chattels.^ 
 
 he shall print the work on paper, etc. * * * i think the plaintiff was 
 employed to do work and labor, and supply materials for it. * * " 
 This is a case of work, labor and materials done and provided by Jhe 
 printer for the defendant." 
 
 1 As to shares of stock, see Humble D.Mitchell, 11 A. & E. 205; 
 Heseltine v. Siggers, 1 Ex. 856; Tempest a.'Kilner, 3 C. B. 249; Bradley 
 V. Holsworth, 3 M. & W. 422; Bowlby v. Bell, 3 C. B. 284; Duncroft v. 
 Albrecht, 12 Sim. 189; "Watson v. Spratley, 10 Ex. 122; 24 L. J. Ex. 53; 
 Powell V. Jessop, 18 C. B. 336; 25 L. J. C. P. 199. 
 
 2 Corporate stocks, Tisdale v. Harris, 20 Pick. 9; Boardman v. Cutler, 
 128 Mass. 388; Pray v. Mitchel, 60 Me. 480; Fine v. Hornsby, 2 Mo. App. 
 61; North u. Forest, 15 Conn. 400; Calvin v. "Williams, 3 H. &J. 38; 
 Southern Life Ins. Co. v. Cole, 4 Fla. 359. Bank-bills, Gooch ». Holmes, 
 41 Me. 523; Riggs v. Magruder, 2 Cranch C. C. 143. Promissory notes 
 
 66 
 
CH. VI. J STATUTE OF FRAUDS, IN RESPECT TO SALES. § 59 
 
 In every statute of frauds there is another section which 
 provides that a " contract or sale of lands, tenements and 
 hereditaments, or any interest in or concerning them,'" shall 
 not be actionable unless the contract, or some memoran- 
 dum thereof, be in writing, signed by the party to be 
 charged. All contracts coming within this section are re- 
 quired in any event to be evidenced by a writing, whereas 
 contracts for the sale of goods, wares and merchandise 
 must be proven by writing, only under the special circum- 
 stances enumerated in the seventeenth section. It becomes, 
 therefore, an interesting as well as an important question, 
 under which section of the statute do contracts come, 
 which provide for the sale of things which are by annexa- 
 tion a part of the soil, but which will by severance become 
 personalty. It seems to be a settled doctriue that where 
 the contract does not call for Ihe transfer of title, before 
 the thing has been severed from the soil, it is a contract for 
 the sale of goods, wares and merchandise. ^ But the ques- 
 tion becomes very difficult of solution, when the claim is 
 made that the title passes before severance. Out of the 
 contradictions of authorities, the following distinctions mav 
 be drawn: If the contract be for the sale of the natural 
 products of the soil, the trees and the fruits of trees, the 
 
 and bills of exchange, Baldwin v. Williams, 3 Met. 367; Hudson v. Weir, 
 29 Ala. 294. Open accounts, Walker v. Supple, 54 Ga. 178. The statute 
 of frauds of New York expressly includes " things in action." See 
 Artcher i). Zeh, 5 Hill, 200 ; People v. Beebe, 1 Barb. 379; Peabody u. 
 Speyers, 56 N. Y. 230. The statute was held not to apply to a contract 
 to dispose of an Interest in an invention before the patent was issued, 
 Somerby ii. Buntin, 118 Mass. 285; nor to a contract to sell shares of 
 stock in a company not yet organized. Gadsden v. Lance, 1 McMuU. Eq. 
 87; Greed v. Brooklns, 23 Mich. 48. See Blakeney v. Goode, 30 Ohio St. 
 350. The English rule is followed in Whittemore v. Gibbs, 24 N. H. 
 484 ; Vawter v. Griffin, 40 Ind. 600. See Beers v. Crowell, Dudley, 28, 
 as to checks. 
 
 1 Smith V. Surman, 9 B. & C. 661; Falmouth v. Thomas, 1 C. & M. 
 105; Marshall;!). Green, 1 C. P. D. 35; Parker v. Staniland, 11 East, 362; 
 Sainsbury v. Matthews, 4 M. & W. 434. 
 
 67 
 
§ 59 STATUTE OF FRAUDS, IN RESPECT TO SALES. L^^- ^• 
 
 contract is one for the siile of an interest in lands, and 
 comes within the fourth, instead of the seventeenth, sec- 
 tion of the statute of frauds.^ But the American cases 
 hold, in accord with one English case,^ that if the natural 
 product of the soil is to be severed immediately or within 
 a reasonable time, it matters not by whom, andthepur- 
 chasier does not expect to derive any further benefit from 
 the connection with the soil, it is a contract for the sale of 
 goods, within the seventeenth section, and not a contract 
 for the sale of an interest in land, and hence within 
 the fourth section.' In these cases it is held that the 
 title to the trees, etc., passes immediately, together 
 with a license to go upon the land and cut and remove 
 them, which is irrevocable as to the trees, etc , which are 
 already severed from the soil,* but revocable as to those 
 which are still unsevered from the soil.^ 
 
 J Crosby v. Wadsworth, 6 East, 602; Waddington ». Brlstow, 2 B. & 
 P. 452; Carrington v. Boots, 2 M. & W. 248; See veil w, Boxall, 1 T. & 
 Jerv. 396; Teal v. Aulty, 2 Br. & B. 101; Green v. Armstrong, 1 Denio, 
 650; Kingsley v. Holbrook, 46 N. H. 313; Olmstead v. Niles, 7 N. H. 
 622 ; Pattison's Appeal, 61 Pa. St. 294 ; Huff v. McCauley, 63 Pa. St. 206 ; 
 Daniels v. Bailey, 43 Wis, 566 ; Lillie «. Dunbar, 62 Wis 198; Macdonnell 
 V. McKay, 15 Grant (Ont.), 391; Summers v. Cook, 28 Grant (Ont.), 179; 
 Wliite V. Foster, 102 Mass. 375; Howe v. Batchelder, 49 N. H. 204; 
 Buck ».Pickwell, 27 Vt. 167; Slocum v. Seymour, 36 N. J. L. 138; War- 
 ren V. Leland, 2 Barb. 613; Vorebeck v. Kowe, 50 Barb. 302; HarroU v. 
 Miller, 35 Miss. 700. 
 
 2 Marshall v. Green, 1 C, P. D. 35. 
 
 3 Wliitmarsh v. Walker, 1 Met. 313; Nettleton v. Sikes, 8 Met. 34; 
 Cutler V. Pope, 13 Me. 377; McClintock's Appeal, 71 Pa. St. 365; Smitli 
 V. Bryan, 5 Md. 141; Brown v. Stanclift, 80 N. Y. 627; Claflin t;. Car- 
 penter, 4 Met. 580; Erskine v. Plummer, 7 Greenl.447; Bantonii. Shorey, 
 77 Me. 48; Sterling v. Baldwin, 42 Vt. 306; Purney v. Piercy, 40 Md. 
 212. See Cain v. McGuire, 13 B. Mon. 340; Killmore v. Howlett, 48 N. 
 Y. 569; Byassee v. Reese, 4 Met. (Ky.) 372; Boyce v. Washburn, 4 Hun, 
 792. 
 
 * Nelson ■». Nelson, 6 Gray, 386; Douglass v. Shumway, 13 Gray, 498; 
 Pierrepont v. Barnard, 6 N. Y. 279 ; Green v. North Car. R. B. Co., 73 
 N.C. 524; Cool v. Peters Box Co., 87 Ind. 531. 
 
 6 Giles V. Simonds, 15 Gray, 441; Putney v. Day, 6N. H. 430; Arm 
 68 
 
CH. VI.] STATUTE OF FKAUDS, IN RESPECT TO SALES. § 59 
 
 Where the contract is for the sale of annual crops, the 
 fruclus industriales, it is universally held to be a contract 
 forthe sale of goods, wares and merchandise, and therefore 
 within the seventeenth section of the statute of frauds.^ 
 But there are several English authorities which expressly 
 hold that where the contract calls for the present transfer 
 of title to the annual crops, it is not a contract for the sale 
 of goods, wares and merchandise, so as to bring it within 
 the seventeenth section of the statute. ^ 
 
 It is also held by the American courts that a contract for 
 the sale of fixtures is a contract for the sale of goods, wares 
 and merchandise.' But it is, however, held that if the 
 land, to which the fixtures are attached, should be sold to a 
 bona fide purchaser, after the contract for the sale of the 
 fixtures, and before their severance from the freehold, the 
 fixtures will pass to the purchaser of the land, as appurte- 
 nants, unless they are reserved in the deed.* An oral reserv- 
 ation of the fixtures will not prevent them from passing to 
 the purchaser.^ 
 
 strong V. Lawson, 73 Ind. 498; Drake v. Wells, 11 Allen, 141; Owens v. 
 Lewis, 46 Ind. 488. See, also, N. B. & N. S. Land Co. v. Kirk, 1 Allen 
 N. B. 443; Kerr v. Connell, 1 Berton, 133; Mowray v. Gilbert, 1 Hannay, 
 545. 
 
 ' Bricker v. Hughes, 4 Ind. 146 ; Brittain v. McKay, 1 Ired. 265 ; More- 
 land V. Myall, 14 Bush, 474 ; Dunne v. Ferguson, 1 Hayes, 540 ; Marshall 
 V. Ferguson, 23 CaL65; Bull v. Griswold, 19 111. 631; Evans ti. Roberts, 
 5 B. & C. 836 ; Jones v. Flint, 10 A. & E. 753; Hodwell v. PhlUips, 9 M. & 
 W. 502. 
 
 2 Mayfleldw. Wadsley, 3B.&C.357; Hallena. Rtinder,lC. M.&H.267; 
 Lord Ellenborough in Parker v. Staniland, 11 East, 365. 
 
 ' Bostwick V. Leach, 3 Day, 476; Strong v. Doyle, 110 Mass. 92; Eoss' 
 AppeaV9 Pa. St, 491; Powell u. McAshan, 28 Mo. 70; Shaw u. Corbrey, 
 13 Allen, 462; Howard v. Fessenden, 14 Allen, 124; Morris W.French, 106 
 Mass. 326; Central Branch Bk. v. Fritz, 20 Kan. 430; Long v. White, 42 
 Ohio St. 69; Rogers v. Cox, 96 Ind. 157; Foster v. Mabe, 4 Ala. 403; 
 Scoggin V. Slater, 22 Ala. 687; Dame v. Dame, 38 N. H. 429. 
 
 * Gibbs w. Estey, 15 Gray, 687; DoUiverc. Ela, 128 Mass. 559; South- 
 bridge Sav. Bank v. Exeter Machine Works, 127 Mass. 542. 
 
 « Conner ». Coffin, 23 N. H. 538; Bond b. Coke, 71 N. C. 97; Austin B. 
 
 69 
 
§ 59 STATUTE OF FRAUDS, IN RESPECT TO SALES. [CH. VI. 
 
 la England, a contract for the sale of fixtures is a con- 
 tract for the sale of an interest in land, and within the fourth 
 section of the statute. ^ 
 
 It is very difficult to understand, on general principles, 
 how the title to these annexations and products of the soil 
 can be said to pass under a contract for the sale of goods, 
 etc., before a severance from the soil, and yet the title thus 
 acquired be lost by a subsequent sale of the land to one 
 who is ignorant of the prior sale of the fixtures or product 
 of the soil. And in every such transactio-n, there is coupled 
 with the contract for the sale of the thing a license to go 
 upon the land for the purpose of severing and removing it 
 from the land. That surely is an interest in and concerning 
 land, whether the thing to be removed be a fixture, a na- 
 tural or artificial product of the soil. Sof.ir at least as the 
 license is concerned, it is a contract for the sale of nn interest 
 in land, and must come within the fourth section of the 
 statute. 
 
 Another objection to the theory of the authorities that 
 the title passes before severance, is that, until severance, the 
 thing has no separate legal existence, and everything has 
 not been done to complete the contract. There is no de- 
 livery and there can be none, until a severance has been 
 effected. 
 
 The better opinion, independent of the authorities, would 
 seem to be, that any contract, which undertakes to pass 
 title to anything annexed to the soil, without severance, is 
 a contract for the sale of an interest in land, whatever may 
 be the character of the thing to be severed, and falls within 
 the fourth section of the statute. 
 
 Sawyer, 9 Cow. 39; Noble e. Bbswortli, 19 Pick. 314. See, contra, Fea. v. 
 Pea, 35 Ind. 387; Smith a. Odom, 63 Ga. 499 (a statute afiecting if not 
 controlling the decision). In Strong v. Doyle, 110 Mass. 92, the oral 
 reservation was made prior to the deed. 
 * Lee V. Gaskell, 1 Q. B. D. 700. 
 70 
 
CH. VI. J STATUTE Ol' FRAUDS, IN RESPECT TO SALES. § 61 
 
 § 60. Statutory limit of value. — The section, which in 
 all the statutes of frauds relates to contracts for the sale of 
 goods, wares and merchandise, prescribes that it will apply 
 only where the value of goods sold reaches a certain value, 
 all contracts for the sale of goods below that amount fall- 
 ing without this section of the statute, and usually valid 
 without writing. The limit of value in the English statute 
 is £10, and in most of the United States it is $50. But in 
 other States, a different value is established ; in Arkansas, 
 Missouri, Maine and Xew Jersey, $30; in Kew Hampshire, 
 $33; in Vermont, $40; in Arizona, $100; in California 
 and Idaho, $200; in Montana and Utah, $300; while in 
 Florida and Iowa, no limit is fixed, all contracts for the 
 sale of goods, of whatever value, being within the statute. 
 
 § 61. When does the contract for sale of goods reach 
 Ol" exceed the limit. — It becomes a difficult question to 
 determine whether the limit of value has been reached, 
 where one buys several articles, the value of each article 
 being below the statutory limit, but the amount of the en- 
 tire bill being above it. The question to be determined in 
 such cases is, whether the purchase of each article consti- 
 tuted a separate independent transaction, or only a part of 
 one single transaction. If the purchase of all the articles 
 constituted one transaction, then the contract would fall 
 within the statute, although the value of no one article 
 reached the statutory limit. But if the purchase of each 
 article constituted a separate transaction, then the statute 
 would not apply, unless the value of that article reached 
 the statutory limit. In each case it becomes a question of 
 fact, the answer to which depends upon the peculiar circum- 
 stances of the case. Ordinarily, where one undertakes to 
 buy " a bill of goods," and all the items are incorporated 
 in the same bill of account, it constitutes but a single trans- 
 action, and falls within the operation of the statute, if the 
 entire amount renches or exceeds the statutory limit of 
 
 71 
 
§ 61 STATUTE OF FRAUDS, IN RESPECT TO SALES. [CH. VI. 
 
 value. 1 But variations as to mode of paj'ment, time of de- 
 livery, etc., go very far to making separate transactions 
 out of each item of the bill, if they do not establish the 
 f act.^ It is also to be presumed, that where, in consequence 
 of the illegality of the sale of some of the items, the legal 
 part is separated from the illegal, and suit allowed on the 
 legal part,^ that the separation of the illegal from the legal 
 part would necessarily destroy the unity of the transaction, 
 and make as many transactions as there are items purchased. 
 In accordance with the general principle, already given, 
 the courts have held that the purchase at an auction of 
 different lot of goods on different bids does not constitute 
 one transaction, but as many transactions as there were 
 bids made and accepted ; and the statute does not apply to 
 any one purchiise, unless the amount of it reached the 
 statutory limit of value.* But it has been held that the 
 construction of auction sales does not differ in this regard 
 from other sales, so that a purchase of goods by successive 
 bids at auction will constitute one transaction, although 
 they were made on different days, so far, at least, that the 
 receipt and acceptance of one lot of goods will take all the 
 purchases out of the statute.^ The American cases, which 
 
 1 Baldey «. Parker, 2 B. & C. 37; Oilman v. Hill, 36 N. H. 318; Gault 
 V. Brown, 48 N. H. 183; Brown u. Hall, 5 Lans. 177; Allardc. Greasert, 
 61 N. Y. 1. See Price v. Lee, 1 B. & C. 156. 
 
 2 Aldrichc. Pyatt, 64 Barb. 391; Barclay v. Tracy, 5 W. & S. 46. 
 
 3 See Walker «. Lovell, 28 N.H. 138; Carleton v. Woods, 28 N. H. 290; 
 Coburn v. Odell, 30 N. H. 557; Goodwin v. Clark, 65 Me. 280; Ware v. 
 Curry, 67 Ala. 274. 
 
 - Emmersoni;. Heelis, 2 Taunt. 38; Rugg v. Minnett, 11 East, 218; 
 Couston 0. Chapman, L. R. 22 H. L. Sc. 250; Roots v. Lord Dormen, 4 
 B. &Ad. 77; Robinson «. Green, 3 Met. 169; Wells ». Day, 124 Mass. 
 38; Stoddard v. Smith, 5 Binn. 355; Van Eps v. Schenectady, 12 Johns. 
 436. 
 
 » Jenness v. Wendell, 51 N. H. 63. See, also, to the same effect. Mills 
 V. Hunt, 17 Wend. 333; 20 Wend. 431 ; Thompkins v. Haas, 2 Pa. St. 74; 
 Coffman v. Hampton, 2 W. & S. 377; Kerr v. Shrader, 1 Weekly N. C. 
 33. See, also, 1 Salk. 65. 
 72 
 
CH. VI.] STATUTE OF FRAUDS, IN RESPECT TO SALES. § 61 
 
 are >cited in the earlier note, in support of the doctrine of 
 the English cases, relate to auction sales of real property. 
 While the same principle would govern, whether the con- 
 tract was for the sale of real or of personal property, in 
 the present condition of the authorities, it must be accepted 
 as the American doctrine, that, in respect to the question 
 under inquiry, no distinction is to be made between auction 
 and other sales. 
 
 The fact that it is uncertain, when the purchase was 
 made, whether the bill would reach or exceed the statutory 
 limit, will not prevent the application of the statute. If 
 the amount of the bill, when ascertained reaches the 
 limit, the contract falls within the operation of this section 
 of the statute.^ 
 
 Nor is the contract prevented from falling within the 
 statute, if, along with the sale of goods,^ it stipulates 
 the performance of some duty. According to an English 
 authority, it seems, that, although the value of the 
 goods could not be recovered, because the contract was 
 not in writing, yet, there could be a recovery of the value 
 of the services rendered under the part of the contract not 
 included in a sale of the goods. ^ But, according to the 
 American authority, no action could be maintained on such 
 a contract for the value of the services, unless the agreed 
 consideration for the same was separate and independent of 
 the price of the goods.* The contract in Harman v. Reeves 
 was for the sale of a mare and foal, with the obligation on 
 
 1 Watts V. Friend, 20 B. & C. 446; Bowman u. Conn, 8 Ind. 58; Car- 
 penter V. Galloway, 73 Ind. 418; Gauit v. Brown, 48 N. H. 182; Brown v. 
 Sanborn, 21 Minn. 402; Cox v. Bailey, 6 M. & G. 193; Hodges v. Rich- 
 mond Mfg. Co., 9 R. I. 482. 
 
 2 'Woods V. Benyon, 2 Cr. & J. 95; Cobbold v. Caston, 1 Bing. 899; 8 
 Moo. 456; Astey v. Emery, 4 M. & S. 262 ; Harman v. Reeve, 25 L. J. C. P. 
 257; 18 C. B. 586; Irvine ». Stone, 6 Cush. 508; McMuUen u. Eiley, 6 
 Gray, 600. 
 
 ' See Harman ». Reeve, 25 L. J.[C. P. 257; 18 C. B. 586. 
 * Irvine v. Stone, 6 Cash. 508; McMuUenw. Riley, 6 Gray, 506. 
 
 73 
 
§ 63 STATUTE OF FKAUDS, IN RESPKCT TO SALKS. [CH. VI. 
 
 the part of the vendor to agist them at his own expense 
 until Michaelmas, and also to agist another mare and foal 
 for the vendee, all for the sum of £30. 
 
 § 62. The conditions of validity under the statute of 
 frauds. — The statutes of frauds provide that contracts 
 for the sale of goods, wares and merchandise shall not be 
 allowed to be good, " except — 
 
 1. "the buyer shall accept part of the goods so sold, 
 and actually receive the same; 
 
 2. "or give something in earnest to bind the bargain, or 
 in part payment; 
 
 3. "or that some note or memorandum in writing of the 
 said bargain be made and signed by the party to be charged 
 by such contract or their agents thereunto lawfully author- 
 ized." 
 
 These requirements will be discussed separately and con- 
 secutively. 
 
 § 63. Effect of compliance with requirement of ac- 
 ceptance and receipt — Liimit as to time. — When the 
 buyer, in compliance with the statute, accepts and receives 
 part of the goods sold, it must not be understood that the 
 parties must have agreed to all the terans of the contract 
 of sale. Inasmuch as this requirement refers only to the 
 validity of the contract, and does not necessarily include a 
 performance of it, there may be, in the statutory sense, an 
 acceptance and receipt of the goods, or of a part of them, 
 although there is a dispute between the parties as to the 
 terms. And parol evidence is admissible to settle such a 
 dispute. 1 Acceptance and receipt is as necessary to bind 
 the seller, as it is to bind the buyer ; nor can there be any 
 acceptance and receipt, except with the assent of the seller.* 
 
 i Tomkinson v. Straight, 26 L. J. C. P. 85; s. c. 17 C. B. 697. 
 2 Washington Ice Co. v. Webster, 62 Me. 341; Clark v. Tucker, 2 
 Sandf. 157. 
 74 
 
CH. VI. J STATUTE OF TKAUDS, IN' RESPECT TO SALES. § C5 
 
 It hardly needs to be stated that the acceptance and receipt 
 are not required to follow the contract of sale within any 
 given time. It matters not how long a time may have 
 elapsed, provided these acts are done in pursuance of the 
 contract.^ 
 
 § 64. Proof and burden of proof, of acceptance and 
 receipt. — The burden of proving the facts of acceptance 
 and receipt always rests upon the party alleging it, usually 
 the plaintiff, whether he be the seller or buyer. Whoever 
 is undertaking to enforce the contract of sale must prove 
 the acceptance and receipt. ^ So, also, where a part of the 
 goods has been accepted and receipted, the burden of proof 
 is on the party alleging it to prove of what goods this was 
 a part.^ Ordinarily it is a question of fact for the jury, 
 whether there has been an acceptance and receipt.* But 
 when it appears, upon a consideration of all the facts of 
 the case, that the evidence in proof of acceptance and re- 
 ceipt is not sufficient to warrant an affirmative finding, the 
 court may take the case from the jury, and order a verdict 
 in accordance with this conclusion.* 
 
 § 65. Acceptance and receipt by agent. — It is not 
 
 necessary that there^ should be a personal acceptance and 
 
 1 McKnight v. Dunlop, 5 N. Y. 537; Bush v. Holmes, 53 Me. 417; 
 Elchardsou v. Squires, 37 Vt. 640; Amson v. Dreher, 35 Wis. 615; Mc- 
 Carthy V. Nash, 14 Minn. 127; Sprague v. Blake, 20 Wend. 63; Marsh v. 
 Hyde, 3 Gray, 331 ; Davis v. Moore, 13 Me. 424; Buckingham u. Osborne 
 44 Conn. 133; Sale v. Darragh, 2 Hilt. 184. 
 
 " Denny v. Williams, 5 Allen, 1; Howard v. Borden, 18 Allen, 299; 
 Quintard v. Bacon, 99 Mass. 185; Remick v. Sandford, 120 Mass. 309; 
 Shepherd v. Pressey, 32 N. H. 49; Prescott v. Locke, 51 N. H. 94 ; Young 
 V. Blaisdell, 60 Me. 272. 
 
 ' Marsh v. Hyde, 3 Gray, 331 ; Davis v. Eastman, 1 Allen, 422 ; Bowers 
 V. Anderson, 49 Ga. 143. 
 
 * Garfleld v. Paris, 96 IT. S. 563. 
 
 * Stone V. Browning, 68 N. Y. 598 ; Kealey v. Tennant, 13 Ir. C. L. 
 394; Denny v. Williams, 5 Allen, 5; Howard v. Borden, 13 Allen, 299; 
 Clark V. Marriott, 9 Gill, 331. 
 
 75 
 
§ 66 STATUTE OF FRAUDS, IN RESPECT TO SALES. [CH. VI. 
 
 receipt. A duly authorized iigent may accept and receive 
 for his principal, and this would be a sufficient compliance 
 with the statute.^ But the agent must be authorized, either 
 expressly or by implication. And an agent may be au- 
 thorized to receive for the principal, without having any 
 authority to accept in his name. Thus, while the common 
 carrier, to whom the goods are delivered for shipment to 
 the purchaser, is an impliedly authorized agent of the 
 vendee to receive the goods for his principal, he cannot 
 bind the vendee by his acceptance. Tiie common carrier's 
 reception of the goods is not in any sense an acceptance by 
 the vendee, in order to satisfy the requirement of the stat- 
 ute ; ^ not even when the common carrier has been expressly 
 selected by the vendee. At least, that appears to be the 
 better rule.^ No authority need be cited to show that a 
 delivery of unordered goods to the common carrier does not 
 amount even to a reception of them, in the statutory sense. 
 
 § 66. Acceptance andrecelptdistinguisbed. — Although 
 some of the authorities have manifested a disposition to 
 
 1 Snow ». Warner, 10 Met. 132; Dean v. Tallman, 105 Mass. 443; 
 Ontwater v. Dodge, 6 Wend. 397; Barkley v. Rensselaer R. R. Co., 71 N. 
 Y. 205; Jones v. Mechanics' Bank, 29 Md. 287; Daws v. Montgomery, 5 
 Eobetrs, 446. 
 
 2 Cross V. O'Donnell, 44 N. Y. 661 ; Frostburg Mining Co. v. New 
 England Glass Co., 9 Cush. 115; Rogers v. Phillips, 40 N. Y. 519; 
 Grimes v. Van Fechten, 20 Mien. 410; Loyd v. Wight, 20 Ga. 578; Den- 
 mead V. Glass, 30 Ga. 637; Atherton ». Newhall, 123 Mass. 141; Astey , 
 V. Emery, 4 M. & S. 262; Johnson v. Dodgson, 2 M. & W. 656; Hunt v. 
 Hecht, 8 Ex. 814; Meredith v. Meigh, 2 E. & B. 370; s. c. 22 h. J. Q. B. 
 401; Hart v. Bush, E. B. & E. 494; 27 L. J. Q. 271; Smiths. 
 Hudson, 6 B. & S. 431; 34 L. J. Q. B. 145; Hanson v. Armitage, 5 
 B. & Aid. 557; Norman v. Phillips, 14 M. & W. 276; Acebal v. Levy, 10 
 Bing. 876; Cusack v. Robinson, 1 B. & S. 299; 30 L. J. Q. B. 261; Max- 
 well V. Brown, 39 Me. 98; Hausman v. Nye, 62 Ind. 485; Daly v. Neacks, 
 Barton (N. B.) 346. 
 
 s Johnson v. Cuttle, 105 Mass. 447; Allard v. Greasert, 61 N. Y. 1; 
 Jones V. Mechanics' Bank, 29 Md. 287. But see Spencer v. Hale, 30 Vt. 
 314; Strong v. Dodds, 47 Vt. 348. 
 76 
 
CH. VI.] STATUTE OF FRAUDS, IN RESPECT TO SALES. § (36 
 
 ignore all distinctions between acceptance and receipt of 
 goodsji it is now well established by the authorities that 
 there is such a distinction, and the authorities are numerous, 
 in which the acts have been held to constitute an accept- 
 ance and not a receipt, and vice versa. ^ The acceptance is 
 a mental operation, which involves a present determination 
 to assume the proprietorship over the goods, while the 
 actual receipt of the goods involves taking possession of 
 them, either personally or through one's agent. There 
 may, therefore, be an acceptance without a receipt, as where 
 the goods have been inspected and selected by the buyer, 
 and the contract of sale made, but the goods are still in the 
 possession of the seller ; ^ and, so, also, there may be a re- 
 ceipt of the goods, without an acceptance, where the goods 
 are taken into possession by the buyer, with the intention 
 of examining the goods, before concluding to accept. And 
 he is not bound to accept, where he has received the goods, 
 simply because the goods are in every respect in accordance 
 with the centract.* The two things, acceptance and receipt, 
 are, therefore, entirely distinct and separable. Nor need 
 they occur simultaneously. An acceptance may take place 
 prior as well as subsequent to the receipt of the goods. ^ 
 
 1 Castle V. Sworder, 6 H. & N. 832; 30 L. J. Ex. 310; Marvin v. Wal- 
 lace, 6 E. & B. 726; 25 L. J. Q. B. 369. 
 
 2 Phillips V. Bistolli, 2 B. & C. 511 ; Clinitz v. Surrey, 5 Esp. 267; Smith 
 V. Hudson, 6 B. & S. 431; 34 L. J. Q. B. 145; Cusack v. Kobinson, 1 B. 
 & S. 299; SOL. J. Q. B. 261. See, also, cases cited in preceding note, of 
 effect of reception of goods by a common carrier. 
 
 s Cusack V. Robinson, 1 B. & S. 299; 30 L. J. Q. B. 261; Saunders ». 
 Topp, 4 Ex. 390. 
 
 ^ Stone V. Browning, 51 N. Y. 211; 68 N. Y. 598; Brewster v. Taylor, 
 63 N. Y. 587; Eemick v. Sandford, 120 Mass. 309; Bacon v. Eccles, 43 
 Wis. 227; Gibbs o. Benjamin, 45 Vt. 124; Hewes D.Jordan, 39 Md. 472. 
 
 « Cross V. O'Donuell, 44 N. Y. 661. In re Downing, 2 Low. 663; U. 
 S. Reflector Co. v. Rushton, 7 Daly, 410; Hewes v. Jordan, 39 Md. 484; 
 Cusack 0. Robinson, 1 B. & S. 299 ; 30 L. J. Q. B. 261 ; Nicholson v. 
 Bower, 1 E. & E. 172; 28 L. J. Q. B. 97; Saunders v. Topp, 4 Ex. 390; 
 Hunt V. Hecht, 8 Ex. 814; 22 L. J. Ex. 293. But the acceptance must 
 
 ■ 77 
 
§ (J7 fei'ATUTE OF FRAUDS, IN RESPECT TO SALES. [CH. VI. 
 
 §67. What acts constitute acceptance. — Since the 
 acceptance is itself a mental operation, it must be mani- 
 fested or communicated to others in some way, in order 
 that it may become a legal fact. The law can only take 
 cognizance of mental operations which have been published 
 to the world or to the parties interested. Of course, a 
 declaration that the buyer accepts or will take the goods, 
 would be sufficient. But in the cases in which the question 
 is raised, there is ordinarily no such explicit declaration, 
 and if acceptance is to be proved at all, it can only be by 
 the actions of the buyer, or by collateral facts, which are 
 inconsistent with the absence of an intention to accept; 
 wherever the buyer has done anything with or concerning 
 the goods, which would involve the exercise of ownership 
 over them, such as a resale of them,^ a change in the con- 
 dition or character of them,^ making use of them,* and the 
 like. As it has been expressed by an English judge, " if 
 the vendee does any act to the goods, of wrong if he is not 
 owner of the goods, and of right if he is owner of the goods, 
 the doing of that act is evidence that he has accepted 
 them." * But wherever the facts do not show an exercise 
 of ownership over the goods, as a genenil rule, the accept- 
 ance cannot be established, although there has been a re- 
 ceipt of the goods. 5 It has also been held that a mere 
 
 precede the bringing of the action. Bill v. Bament, 9 M. & W. 36 ; Fricker 
 V. Tomlinson, 1 M. & G. 772. 
 
 1 Chaplin v. Rogers, 1 East, 195; Blenkinsop v. Clayton, 7 Taunt. 597; 
 Lillywhite v. Devereaux, 16 M. & W. 285; Baines v. Jevons, 7 C. & P. 
 288; Hill v. McDonald, 17 Wis. 97; Marshall v. Ferguson, 23 Cal. Co; 
 Robinson v. Gordon, 23 Up. Can. Q. B. 143; Phillips o. Ocmulgee Min!S, 
 55 Ga. 633. 
 
 2 Parker v. Wallis, 5 E. & B . 21. See Maberley v. Sheppard, 10 Bing. 99. 
 8 Beaumont v. Brengtrie, 5 C. & B. 301. 
 
 * Erie, J., in Parker v. Wallis, 5 E. & B. 21. See, also, to the same 
 effect, Gray v. Davis, 10 N. Y. 285; Towers. Tudhope, 37 Up. Can. Q. B. 
 200; Dallard v. Botts, 6 Allen (N. B.), 443; Pinkham v. Mattox, 53 N. H. 
 606. 
 
 5 Kent V. Huskinson, 3 B. & P. 233 ; Maberley v. Sheppard, 10 Bing. 
 78 
 
CH. VX.J STATUTE OF FRAUDS, IX RESPECT TO SALES. § 68 
 
 effort to resell the goods does not necessarily prove an ac- 
 ceptance, since the parties may have expected to accept 
 only in case they could make a resale.^ 
 
 Wheie the buyer has had an opportunity to inspect the 
 goods, and indicates by marking or otherwise what goods 
 he will take, it is held that the facts show an acceptance.* 
 And an acceptance is also proven, where the goods have 
 been marked and set aside by the vendor, with the consent, 
 or by the direction of the purchaser.^ It has also been 
 held that the receipt of the goods, in pursuance of an order 
 for the same, and their retention for an unreasonable time, 
 are facts sufficient to support the presumption of an ac- 
 ceptance.^ 
 
 § 68. Whether Inspection of goods is necessary to con- 
 stitute acceptance — Conditional acceptances. — But it 
 
 has been a much mooted question in England, whether there 
 can be an acceptance, where there has been no opportunity 
 to inspect the goods, and the buyer consequently reserves 
 
 99; Curtis u.Pugh, 10 Q. B. 111. This last case is, however, not reliable, 
 there being facts sufficient to prove an exercise of ownership over the 
 goods. 
 
 1 Clarke. Noble, 2 Up. Can. Q. B. 361; Walkeru. Boulton, 3 Up. Can. 
 Q. B. (o. s.) 252; Gorham u. Fisher, 30 Vt. 431; Jones v. Mechanics' 
 Bank, 29 Md. 297. But see Blenkinsop v. Clayton, 7 Taunt. 597. 
 
 2 Cusicko. Robinson, 1 B. & S. 299; 30 L. J. Q. B. 261; Saunders v. 
 Topp, 4 Ex. 390. But the specific goods must be selected. Nicholson 
 V. Bower, 1 E. & B. 172 ; 28 L. J. Q. B. 97. 
 
 3 Bill V. Bament, 9 M. & W. 36; Proctor i;. Jones, 2 C. & P. 532; Boul- 
 ter «. Arnott, 1 C. & M. 334; Baldey v. Parker, 2 B. & C. 37; Hodgson v. 
 LeBret, 1 Camp.-233. But see Chitty on Contracts, p. 375, where it is held 
 that, "in no case tan the marking of goods with the,name of the pur- 
 chaser by his consent, constitute an acceptance within the act unless it 
 appear from the evidence that the goods have been delivered to the pur- 
 chaser." Certainly the delivery and receipt of the goods is essential to 
 the validity of the contract, but it is the previous selection of the goods, 
 which constitutes the acceptance required by the statute. 
 
 ^ Bushel V. Wheeler, 15 Q. B. 442; Norman v. Phillips, 14 M. & W. 277. 
 See Nichols v. Plume, 1 C. & P. 272. See post, I 114. 
 
 79 
 
§ 68 STATUTE OF FRAUDS, IN" ItESPECT TO SALES. [CH. VI. 
 
 the right to reject the goods upon inspection. According 
 to some of the authorities, this is a conditional acceptance, 
 and the buyer cannot afterwards repudiate the contract, ex- 
 cept upon the ground that the goods delivered do not comply 
 with the terms of the contract.* But there are other cases, 
 in which it was held that there can be no sufficient accept- 
 ance, as long as the right of rejection has not been waived.^ 
 
 1 Morton v. Tibbetts, 15 Q. B. 428; 19 L. J. Q. B. 382, Lord Campbell 
 saying : " The acceptance is to be something which is to precede, or at 
 any rate to be contemporaneous with, the actual receipt of the goods; 
 and is not to be a subsequent act after the goods have been actually re- 
 ceived, weighed, measured or examined. As the act of Parliament ex- 
 pressly makes the acceptance and actual receipt of any part of the goods 
 sold insufficient, it must be open to the buyer to object, at all events, to 
 the quantity and quality of the residue ; and even when the sale is by 
 sample, that the residue offered does not correspond with the sam- 
 ple. * * * ■yve are of opinion 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. The acceptajce to let in parol evi- 
 de nee of the contract appears to us to be a different acceptance from that 
 which affords conclusive evidence of the contract having been fulfilled." 
 In this case, defendant had ordered goods by parol, to be of a certain 
 weight, and according to sample. Before their arrival, defendant re- 
 sold the goods on the same conditions. See, to the same effect, Currie 
 V. Anderson, 2 E. & E. 592; 29 L. J. Q. B. 87; Kibble v. Gough, 38 L. T. 
 (n. s ) 204, Brett, Lord J. : "There must be an acceptance and an actual 
 receipt; no absolute acceptance, but an acceptance which could not have 
 been made, except on admission of the contract, and that the goods were 
 sent under it. I am of opinion that there was a sufficient acceptance 
 under the statute of frauds, although there was still a power of rejec- 
 tion." 
 
 2 Hunt V. Hecht, 8 Ex. 814 ; 22 L. J. Ex. 293, Martin, B. : " There 
 are various authorities to show that for the purpose of an acceptance 
 within the statute, the vendee must have had the opportunity of exercis- 
 ing his judgment with respect to the articles sent. Morton v. Tibbetts 
 has been cited as an authority to the contrary, but in reality that case 
 decides no more than this, that where the purchaser of goods takes upon 
 himself to exercise dominion over them, and deals with them in a manner 
 Inconsistent with the right of property being in the vendor, that is evi- 
 dence to justify the jury in finding that the vendee has accepted the 
 ■goods, and actually received the same. The court, indeed, there say 
 
 80 
 
CH. VI. J STATUTE OF FRAUDS, IN RESPECT TO SALES. § 68 
 
 The latter ruling seems to be generally accepted in the 
 United States.^ 
 
 It seems to me that the two opposing theories are both 
 partly erroneous. The opportunity to inspect the goods is 
 nut, or ought not to be, considered essential to the accept- 
 ance, where there has been a formal acceptance, or where 
 the other attending facts indicate very clearly an assump- 
 tion of ownership over the goods. It does not seem to be 
 impossible for the parties to make an acceptance, which 
 would be sufficient to comply with this statutory require- 
 ment, conditional upon the right of rejection, if the goods, 
 upon inspection, do not satisfy the terms of the contract. 
 If that were impossible, then nothing but an absolute ac- 
 ceptance would be sufficient. On the other hand, the want 
 of an opportunity to examine the goods, and the absence of 
 any waiver of the right of rejection on inspection, would be 
 strong evidence of a want of acceptance, which could be 
 rebutted only by the strongest proof of the buyer's exercise 
 of ownership over the goods. 
 
 There may be an exercise of ownership over the goods 
 through the disposition of the bill of lading, as by the con- 
 trol of the goods themselves.^ 
 
 that there may be an acceptance and receipt within the statute, although 
 the vendee has had no opportunity of examining the goods, and although 
 he has done nothing to preclude himself- from objecting that they do not 
 correspond with the contract. But, in my opinion, an acceptance, to 
 satisfy the statute, must be something more than a mere receipt, it means 
 some act done, after the vendee has exercised, or had the means of exer- 
 cising, his right of rejection." See, to same effect, Coombs v. Bristol & 
 Exeter B. E. Co., 3 H. & N. 510; 27 L. J. Ex. 401 ; Smith v. Hudson, 6 B. 
 &S. 431; 34 L.J. Q. B. 145. 
 
 ^ Russell V. Minor, 22 Wend. 659 ; Kathbun v. Eathbun, 6 Barb. 98 ; 
 Brand v. Fetch, 3 Keyes, 409 ; Shepherd v. Pressey, 32 N. H. 49 ; Messer 
 V. Woodman, 22 N. H. 181, 182; Belt u. Marriott, 9 Gill, 331; Oilman ». 
 Hill, 36 N. H. 311 ; Clark v. Tucker, 2 Sandf. 157; Gorham v. Fisher, 30 
 Vt. 428. 
 
 ' Currie v. Anderson, 29 L. J. Q. B. 87; s. c. 2 E. & E. 592; Meredith 
 V. Meigh, 22 L. J. Q. B. 401 ; s. c. 2 E. & B. 364. 
 
 6 81 
 
§ 69 STATUTE OF FRAUDS, IN KESl'ECT TO SALES. [CH. VI. 
 
 § 69. What constitutes a receipt of the goods. — The 
 
 cases in which this question can arise have been divided by 
 Mr. Benjamin ^ into three classes, viz. : where the goods are 
 at the time of sale in the possession, 
 
 "1. of the buyer as bailee or agent of the vendor; 
 
 "2. of a third person, whether or not as bailee or agent 
 of the vendor ; 
 
 " 3. of the vendor himself." 
 
 When the goods are already in the possession of the 
 vendee as bailee of the vendor, there can be no actual tak- 
 ing hold of the goods in receipt of them ; for the vendee 
 already has hold of them, although in a different character. 
 In the performance of the contract of sale, the only thing 
 to be done is to change the character of his possession 
 from that of bailee to that of owner of the goods. What- 
 ever, therefore, would amount to a change in the character 
 of the possession would be a suflScient receipt as well as an 
 acceptance. Under these circumstances, the receipt is im- 
 plied from the proof of acceptance. Whenever, therefore, 
 the vendee in possession does with the goods, what would 
 be consistent only with his assumption of ownership, there 
 is sufficient proof of acceptance and receipt.^ 
 
 Where the goods are in the possession of a third person 
 as bailee or agent of the vendor, there will be a sufficient 
 receipt of the goods by the vendee, if in consequence of the 
 agreement of the vendor and vendee, and with consent of, 
 or at least notice to, the bailee, the control of the goods 
 passes to the vendee. Under these circumstances, the third 
 person becomes the bailee of the vendee, in the place of 
 the vendor. But in order that there may be a sufficient re- 
 ceipt, it is held that the bailee must know of the agreement 
 for the transfer of control. The agreement does not amount 
 
 1 Benjamin on Sales, § 172. 
 
 2 Edan v. Dudfleld, 1 Q. B. 306; LiUywhite ©.Devereux, 15 M. & W. 
 285. 
 
 82 
 
CH. VI.] STATUTE OF FRAUDS, IN KESPECT TO SALES. § 69 
 
 to a receipt, if the bailee docs not expressly or impliedly 
 a^ree to bold the goods for the vendee. And this consent 
 or knowledge of the bailee is required, in order to constitute 
 a receipt, although the bailee is bound by law or by his own 
 agreement to deliver the goods to the vendor's assignee or 
 order. In referring to this obligation of the bailee, the 
 court in Bentall v. Burn,^ say: "This may be true, and 
 they (the warehousemen) might render themselves liable to 
 an action for refusing to do so ; but if they did wrongfully 
 refuse to transfer the goods to the vendee, it is clear that 
 there could not then be any actual acceptance (receipt?) 
 of them by him until he actually took possession of them." ^ 
 But if the bailee is not authorized to deliver, as where the 
 goods are in a government warehouse, awaiting the payment 
 of du^es, any agreement of the warehouseman to deliver 
 the goods to the vendee, without payment of the duties, 
 will not amount to a receipt.^ 
 
 The usual case is where the goods at the time of sale are 
 in possession of the vendor. And, ordinarily, nothing 
 short of a transfer of possession from the vendor to the 
 vendee, or his agent, will amount to a suflBcient receipt. 
 But that is not always required. It frequently occurs, that 
 the vendor will, after a completion of'the sale, agree with 
 the vendee, that he will retain possession in the capacity of 
 
 1 3 B. & C. 423. 
 
 " See, also, to the same effect, Boardman o. Spooner, 13 Allen, 353; 
 Burge V. Cone, 6 Allen, 412; Clark v. Tucker, 2 Sandf. 157; Bassett v. 
 Camp, 54 Vt. 232; King v. Jarman, 85 Ark. 190; Farina v. Home, 16 M. 
 & W. 119; Godts v. Rose, 17 C. B. 229; 25 L. J. C. P. 61; Lackington v. 
 Atherton, 7 M. & G. 360; Lucas ».Dorrien, 7 Taunt. 278; Harman v. An- 
 derson, 2 Camp. 243; Bill v. Bament, 9 M. feW. 36; Woodley v. Coven- 
 try, 2 H. & C. 164; 32 L. J. Ex. 185. See, also, to the same effect, in re- 
 spect to what constitutes delivery to the vendee, Tuxworth v. Moore, 9 
 Pick. 347; Carter v. Willard, 19 Pick. 374; BuUard v. Waite, 16 Gray, 55; 
 Linton ». Butz, 7 Pa. St. 89; Hatch v. Bayley, 12 Cush. 29; Barney u. 
 Brown, 2 Vt. 374; Gibson v. Stevens, 8 How. 384; Warren v. MiUiken, 
 67 Me. 97. 
 
 3 In re Clifford, 2 Sawy. 428. But see Dunham v. Pettee, 1 Daly, 211. 
 
 83 
 
§ 70 STATUTK OF FRAUDS, IN RESPECT TO SALES. [CH. VI. 
 
 a bailee. The most notable example is where the proprie- 
 tor of a livery stable sells a horse, and agrees to board and 
 lodge the horse at his stablB for the vendee. In such a 
 case, there is a sufficient acceptance and receipt, although 
 there is no actual transfer of possession. But, in all such 
 cases, any retention by the vendor of the vendor^sjlien, or 
 other control over the goods in the character of vendor, 
 will prevent, the proof of a receipt of the goods, sufficient 
 to satisfy the requirements of the statute.^ And it has 
 been held that the non-payment of the price is prima facie 
 evidence of the retention of the lien.^ 
 
 § 70. Acceptance and receipt of part of the goods — 
 Samples. — The statute also provides that the acceptance 
 and receipt of a part of the goods will be sufficient to take 
 the entire contract out of the statute. And this has been held 
 to be the case, even though a portion of the goods is yet to 
 be manufactured, and is not delivered for some time after 
 the acceptance and receipt of the part.^ Even the destruc- 
 
 1 Knight V. Mann, 118 Mass. 443; Safford u. McDonough, 120 Mass. 
 290; Eodgers v. Jones, 129 Mass. 422; Messer v. Woodmanj 22 N. H- 
 182; Kirby®. Johnson, 22 Mo. 354; Edwards ». Grand Trunk E. E. Co., 
 64 Me. 105; Marsh v. Rouse, 44 N. Y. 643; Dale©. Stimpson, 21 Pick. 
 3S4; Chaplin v. Eogers, 1 East, 195; Elmore ». Stone, 1 Taunt. 458; Mar- 
 vin V. Wallis, 6 E. & B. 726 ; 25 L. J. Q. B. 369 ; Beaumont v. Beevgeri, 5 
 C. B. 301; Cusack v. Eobinson, 30 L. J. Q. B. 264; 1 B. & S. 299; Saun- 
 ders V. Topp, 4 Ex. 394 ; Baldey v. Parker, 2 B. & C. 37 ; Dodsley v. 
 Varley, 12 Ad. & E. 632 ; Howe v. Palmer, 3 B. & Aid. 321 ; Smith v. Sur- 
 man, 9 B. & C. 561; Phillips v. Bistalli, 2 B. & C. 511; Hawes v. Watsom 
 2 B. & C. 540; Bill w. Bament, 9 M. & W. 37; Maberley v. Sheppard, 10 
 Bing. 101; Holmes ». Hoskins, 9 Ex. 753; Castle v. Sworden, 29 L. J- 
 Ex. 235; 30 L. J. Ex. 310; Weld v. Came, 98 Mass. 152; Janvin v. Max- 
 well, 23 Wis. 61; Means v. Williamson, 87 Me. 656; Eoss v. Welch, 11 
 Gray, 236; Eappleye v. Adee, 65 Barb. 589; Green v. Merriam, 28 Vt. 801; 
 Jackson v. Watts, 1 McCord, 288; Barrett v. Goddarrt, 3 Mason, 107. 
 
 2 Tempest v. Fitzgerald, 3 B. & Aid. 680; Carter v. Toussaint, 5 B. & 
 Aid. 865. 
 
 3 Scott «. Eastern Counties E. E. Co., 12 M. & W. 33; Elliott v. 
 Thomas, 3 M. & W. 176; Tliompson v. Maceroni, 3 B. & C. 1; Bigg v. 
 
 84 
 
CH. VI. J STATUTE OF FUAUDS, IN RESPECT TO SALES. § 70 
 
 tion of the balance of the goods by fire, while they were in 
 the possession of the vendor, will not affect the validity of 
 the contract.* But the part must be received as a part of 
 the whole, and with the implied, if not expressed, intention 
 of accepting the whole. And if the part is received with 
 an express repudiation of the balance, it will not be suffi- 
 cient to bind the buyer to take the rest of the goods. ^ It is 
 for this reason, that the acceptance and receipt of the sample 
 by which the sale was made, will not constitute an accept- 
 ance and receipt of a part of the goods, unless the sample is 
 actually accepted and received as a part of the goods, and to 
 be included in the measurement or weight of the goods sold.^ 
 It may be stated that the acceptance and receipt of a 
 part of the goods binds both parties to the whole bargain, 
 even though a part of the bargain be that the vendor shall 
 purchase the goods in a given contingency.* 
 
 Whiskin, 14 C. B. 196; Gault v. Brown, 48 N. H. 183; Farmer v. Gray, 16 
 Neb. 401; Klckey v. Tenbrock, 63 Mo. 563. 
 
 1 Townsend v. Hargrave, 118 Mass. 325. 
 
 2 Atlierton v. Newhall, 123 Mass. 141. See, also, Pratt v. Chase, 40 
 Me. 269; Gilliat v. Roberts, 19 L. J. Ex. 410; Simpson v. Krumdick, 28 
 Mirai. 852. 
 
 3 Carver v. Lane, 4 E. D. Smith, 168; Gardner v. Grout, 2 C. B. (n. s.) 
 340; Klinitz v. Surrey, 5 Esp. 267; Talver v. West, Holt, 178; Cooper v. 
 Elston, 7 T. R. 14; Foster v. Trampton, 6 B. & C. 107; Hinde v. White- 
 house, 7 East, 558, Lord Ellenborough saying: " Inasmuch as the half 
 pound sample of sugar out of each hogshead in this case is, by the terms 
 and conditions of sale, so far treated as a part of the entire bulk to be 
 delivered, that it is considered in the original weighing as constituting a 
 part of the bulk actually weighed out to the buyer, and to be allowed for 
 specifically if he should choose to have the commodity weighed, I cannot 
 but consider it as a part of the goods sold under the terms of the sale, 
 accepted and received as such by the buyer. And although it be de- 
 livered partly alio iniuito, namely, as a sample of quality, it does not 
 therefore prevent its operating to another consistent intent, also in pur- 
 suance of the purposes of the parties as expressed in the conditions of 
 sale, namely, as a part delivery of the thing itself, as soon as in virtue of 
 the bargain the buyer should be entitled to retain, and should retain it 
 accordingly. 
 
 * Fay©. Wheeler, 44 Vt. 292; Rankins ». Grupe, 36 Hun, 481; Hagar 
 V. King, 38 Barb. 200. 
 
 85 
 
§ 71 STATUTE OF FRAUDS, IN KESPECT TO SALES. [CH. VI. 
 
 §71. Earuest or part payment. — The statute provides 
 that the contract of sale will be allowed to be good, if the 
 buyer *' give something in earnest to bind the bargain, or 
 in part payment." The doctrine of earnest was drawn 
 by the common-law writers from the Eoman law, as a 
 means of binding or concluding the bargain, and the statute 
 of frauds simply adopted it, and applied it to the purpose 
 of the statute.^ It is to be distinguished from part payment 
 in that what is given in earnest is never taken as a part of 
 the consideration, whereas part payment is always a part of 
 the consideration. The subject is not much discussed in 
 the cases and books, since it is not customary to give any- 
 thing in earnest. But it is settled, however, that in order 
 that there may be a giving in earnest, the thing must be 
 transferred absolutely. If it is returned to. the vendee, 
 either immediately or subsequently on performance of the 
 contract, it is not earnest and is not sufficient to bind the 
 bargain.^ It must be something of intrinsic value, some- 
 thing more than the vendee's promise to pay. His check 
 would not be sufficient.^ 
 
 In regard to what will constitute a part payment, suffi- 
 cient to take the case out of the statute, it may be stated in 
 the first place that something of value must be given, but 
 it need not be money.* A mere promise to pay will not be 
 sufficient.* Nor will a simple tender of part payment be suf- 
 ficient. The part payment must be accepted by the vendor. 
 If he rejects it, the tender will not serve to bind the bargain.* 
 
 A release of the vendor from his indebtedness to the vendee 
 
 1 Bracton, 145; Glanville, ch. XIV. 
 
 2 Blenkinsop v. Clayton, 7 Taimt. 597; Goodall v. Skelton, 2 H. Bl. 
 316 ; Howe v. Hayward, 108 Mass. 64. 
 
 3 Noakes v. Morey, 30 Ind. 103. 
 
 * Dow V. Worthen, 87 Vt. 108; Combs v. Bateman, 10 Barb. 673; 
 Hunters. Wetsell, 17 Hun, 135; White v. Drew, 56 How. Pr. 57. 
 
 « Artcher ». Zeb, 5 Hill, 205; KrohntJ. Bantz, 68 Ind. 277. 
 
 6 Edgerton v. Hodge, 41 Vt. 676; Hicks v. Cleveland, 48 N. Y. 84; 
 Walrath v. Ingles, 64 Barb. 265. 
 86 
 
CH. VI. J STATUTE OF FKAUDS, IN RESPECT TO SALES, § 71 
 
 or to some third person, in part payment of the price of the 
 goods, will operate to take the case out of the statute, if 
 the release is provided for by some collateral agreement, 
 whether oral or written, and particularly when a written re- 
 ceipt for the debt is given. ^ But if the agreement to re- 
 lease the vendor's indebtedness in part payment of the price 
 of the goods is itself a part of the contract of sale, it will 
 not be considered such a part payment as will take the case 
 out of the statute.^ 
 
 . In most of the States it does not matter at what time the 
 part payment is made, as long as it is made before the 
 bringing of the action.* But in New York it is held that 
 the part payment must be made at the time of the contract, 
 in order to take it out of the statute.* But this rule is sat- 
 isfied, if at the time of the subsequent part paj'ment, the 
 original contract should be substantially renewed.^ 
 
 1 Brady v. Harrahy, 21 Up. Can. Q. B. 340; Furniss v. Sawens, 3 Up. 
 Can. Q. B. 77; Cotterill v. Stevens, 10 Wis. 442; Paine v. Fulton, 34 Wis. 
 83. But a mere promise to pay or release the vendor's indebtedness will 
 not be sufficient. Artcher v. Zeb, 6 Hill, 395; Ely v. Ormsby, 12 Barb. 
 670; Brand v. Brand, 49 Barb. 316; Brabin v. Hyde, 32 N. Y. 519; Wal- 
 ratli V. Richie, 5 Laws. 362 ; Teed v. Teed, 44 Barb. 96. 
 
 2 Walker v. Nussey, 16 M. & W. 302, Parke, B. : "Had there been a 
 bargain to sell the leather at a certain price and subsequently an agree- 
 ment that the sum due from the plaintiff was to be wiped off from the 
 amount of that price, or that the goods delivered should be taken in sat- 
 isfaction of the debt due from the plaintiff, either might have been €quiv- 
 alentto part payment, as an agreement to set off one item against another 
 is equivalent to payment of money. But as the stipulation respecting the 
 plaintiff's debt was merely a portion of the contemporaneous contract, it 
 was not a giving something to the plaintiff by way of earnest or in part 
 payment, then or subsequently." 
 
 3 Thompson v. Alger, 12 Met. 435; Gault v. Brown, 48 N. H. 189; 
 Davis V. Moore, 13 Me. 424. 
 
 * Artcher v. Zeb, 511111, 205; Ely v. Ormsby, 12 Barb. 670; Bissellc. 
 Bascomb, 39 N. Y. 275; AUis v. Read, 46 N. Y. 142. It wiU be a part 
 payment " at the time," if a check is given Immediately and subsequently 
 paid on presentation at the bank. Hunter v. Wetsell, 84 N. Y. 549. 
 
 " Hunter v. Wetsell, 57 N. Y. 375; 84 N. Y. 544; Jackson v. Tupper, 
 30 Hun, 220; Websteru. Zielly, 62 Barb. 482. 
 
 87 
 
§ 73 STATUTE OF FRAUDS, IN RESPECT TO SALES. [CH. VI. 
 
 § 72. Memorandum or note In writing required — 
 Time of Execution. — The last condition of validity pro- 
 vided by the statute is " that some note or memorandum in 
 writing of the said bargain be made and signed by the par- 
 ties to be charged by such contract or their agents thereunto 
 duly authorized." It is to be observed that the statute 
 does not require the contract of sale to be in writing, only 
 that a memorandum or note in writing be made of the bar- 
 gain. Hence, it will not be necessary for the memorandum 
 to be made at the same time as the contract. It does not 
 matter how much time elapses between the making of the 
 contract and the execution of the memorandum, except that 
 it is held, that the memorandum must be made before the 
 action is brought,* although it would seem rational to hold 
 that it may be made even after suit is brought, as long as 
 the trial has not been had.^ The action is not brought on 
 the memorandum, but on the oral contract, which is only, 
 to be proven by the memorandum or note in writing. 
 
 § 73. By whom should note be made — Undisclosed 
 principal. — The note may of course be made by the agents 
 who are entrusted with the transaction. The grant of au- 
 thority to buy or sell for the principal implies an authority 
 to complete the bargain and bind the parties by the execu- 
 tion of a memorandum. And the agent may make the 
 memorandum, even after the express or principal agency is 
 already terminated. The authority to bind the principal by 
 the execution of a memorandum would survive.' 
 
 It is not necessary, in order to bind the principal, that 
 the memorandum should be executed in his name. As long 
 as his name is not disclosed to the other party at the time 
 when, or before the contract or memorandum has made, the 
 other party has his election, on the discovery of the real 
 
 ' Bill V. Bament, 9 M. & W. 36; Bird v. Munroe, 66 Me. 347. 
 2 See Benjamin on Sales, Bennett's Notes (ed. 1888), pp. 199, 200. 
 ' Williams v. Bacon, 2 Gray, 387. 
 88 
 
CH. VI.] STATUTE OF FRAUDS, IN KESPECT TO SALES. § 73 
 
 principal, whom to hold liable, the real principal, or the 
 awent who appears on the face of the memorandum to be 
 the principal.^ Although parol evidence is not admissible 
 to relieve the agent of liability on a contract of sale, in 
 which the real principal is not disclosed,^ yet it can be 
 proven by parol who the real principal is, in order to hold 
 him liable on the contract, if the other party should so 
 elect. This is held to be no violation of the statute of 
 frauds, on the ground that this parol evidence " does not 
 deny that it is binding on those whom, on the face of it, it 
 purports to bind; but shows that it also binds another, by 
 reason that the act of the agent, in signing the agreement, 
 in pursuance of his authority, is in law the act of the 
 principal." ^ 
 
 How the agent should sign in order to bind the principal 
 is a question belonging to the law of agency; and it has 
 been sufficiently explained in works on contracts and 
 
 1 Truman v. Loder, 11 A. & E. 587; Higgins v. Senior, 8 M. & W. 834; 
 Humfrey v. Dale, 7 E. & B. 266; E. B. & E. 1004; 26 L. J. Q. B. 137; 27 
 L. J. Q. B. 390; Fleet v. Murton, L. R. 7 Q. B. 126; Hutchison v. Tat- 
 ham, L. E. 8 C, P. 482 ; Short v. Spakeman, 2 B. & Ad. 962 ; Jones v. Lit- 
 tledale, 6 A. & E. 486; Eeid v. Draper, 6 II. & N. 813; 30 L^ J. Ex. 208; 
 Paice V. Walker, L. E. 6 Ex. 173; Gowen v. Klous, 101 Mass. 449 ; Wiener 
 V. Whipple, 53 Wis. 302; Williams v. Bacon, 2 Gray, 387; Hunter v. Gid- 
 ding, 97 Mass. 41 ; Salmon Falls Mfg. Co. v. Goddard, 14 How. 446 ; 
 Lerned v. Johns, 9 Allen, 419; Dykers v. Townsend, 24 N. Y. 61. 
 
 2 Higgins V. Senior, 8 M. & W. 834, and cases cited supra, 
 
 " Higgins V. Senior, 8 M. & W. 834, Parke, B. ; Trueman v. Loder, 11 
 A. & E. 587: "Among the ingenious arguments pressed by the defend- 
 ants' counsel, there was one which it may be fit to notice ; the supposi- 
 tion that parol evidence was introduced to vary the contract, showing it 
 not to have been made by Higginbotham, but by the defendant, who gave 
 him the authority. Parol evidence is always necessary to show that the 
 party sued is the person making the contract and bound by it. Whether 
 he does so in his own name, or in that of another, or in a feigned name, 
 and whether the contract be signed by his own hand, or by that of an 
 agent, are inquiries not different in their natui-e from the question who 
 is the person who has just ordered goods in a shop. If he is sued for the 
 price and his identity made out, the contract is not varied by appearing 
 to have been made by him in a name not his own." 
 
 89 
 
§ 75 STATUTE OF FRAUDS, IN RESPECT TO SALKS. [CU. VI. 
 
 agency, to justify the author in presuming that the reader 
 is fully acquainted with its correct answer, and in dismiss- 
 ing the subject without further explanation. 
 
 § 74. To whom the note should be addressed. — It does 
 not matter to whom, if at all, the note or memorandum is 
 addressed. It maybe addressed to a third person,^ to the de- 
 fendant's own agent,^ and it need not be communicated to 
 any one at all, it consisting of any entry on the defendant's 
 books.' 
 
 § 75. The form of the memorandum — Separate pieces 
 of paper. — The memorandum may assume any form, pro- 
 vided the contents are ample. It may be made in a letter 
 or letters,* or it may consist of entries in commercial books 
 of account,^ or of a subscription list.® Nor is it necessary 
 that the memorandum should be made for the express pur- 
 pose of authenticating the contract. It is suflScient, if it 
 furnishes written evidence of all the terms of the contract, 
 whatever may be the purpose of its composition.' 
 
 1 Moore v. Mountcastle, 61 Mo. 424; Sugden on Vendors, p. 139, § 39; 
 Moore u. Hart, 1 Vern. 110; AylifCe v. Tracy, 2 P. Wms. 65; Fugate ». 
 Hanford, 3 Litt. 262. But see Buck v. Pickwell, 1 Williams (Vt.)i 167; 
 Clark V. Tucker, 2 Sandf. 157; Kinloch v. Savage, 1 Speers Ch. 470. 
 
 2 Gibson v. Holland, L. R. 1 C. P. 1; 35 L. J. C. P. 5; Eleeman t;. 
 Collins, 9 Bush, 467. 
 
 3 Peabody v. Soyars, 56 N. Y. 230; Argus Co. v. City of Albany, 55 
 N. Y. 495; Johnson v. Trinity Church, 11 Allen, 123; Tufts S.Plymouth 
 Gold Mining Co., 14 Allen, 407. . 
 
 * Moore v. Mountcastle, 61 Mo. 424; Dobell v. Hutchinson, 3 A. & E. 
 370; Gibson v. Holland, L. R. 1 C. P. 1; 35 L. J. C P. 6; Smith v. Sur- 
 man, 9 B. & C. 561 ; Thayer v. Luce, 22 Ohio St. 62. 
 
 s Peabody v. Soyars, 56 N. Y. 230; Argus Co. v. City of Albany, 55 N. 
 Y. 495; Johnson v. Trinity Church, 11 Allen, 123; Tufts o. Plymouth 
 Gold Mining Co., 14 Allen, 407; Peirce v. Corf, L. R. 9 Q. B. 210; Hinde 
 V. Whitehouse, 7 East, 658. 
 
 8 BoydellB. Drummond, 11 East, 142. See, also, Eitzmaurice v. Bailey, 
 9 H. L. C. 78 ; Crane v. Powell, L. R. 4 C. P. 123. 
 
 ' Ellis V. Deadman, 4 Bibb, 467; Smith v. Arnold, 5 Mason, 416; 
 Reeves v. Pye, 1 Cranch C. C. 219. 
 90 
 
CH. VI. J STATUTE OF TltAUDS, IX IlESPECT TO SALES. § 75 
 
 It is also unimportant whetiier the entire memorandum is 
 made at one time and on one paper, or parts be made at 
 different times and on different pieces of paper. The 
 memorandum may be made up of two or more separate 
 notes, provided the notes together supply written evidence 
 of all the ingredients of the contract.^ But in order that 
 the memorandum may be made up of two or more writings, 
 either all must be signed,^ or the separate papers must be 
 brought into some sort of connection with each other, A 
 physical attachment, by means of pins or of paper fasteners 
 of all kinds, will be sufficient ; ^ but this is not necessary, 
 provided the signed paper contains some sort of reference 
 to the other unsigned parts.* At one time it was supposed 
 and held that the signed paper must have a distinct reference 
 to other parts, so that these parts may be identified by the 
 description ; and that still seems to be the American rule.^ 
 But it seems now to be settled in England that the only thing 
 
 1 Peck ». Vaudemark, 99 N. Y. 29; Jelks ». Barrett, 53 Miss. 315; 
 Fisher v. Kuhn, 54 Miss. 480; Lerned v. Wannemacher, 9 Allen, 412; 
 Khoades v. Castner, 12 Allen, 132 ; Lee v. Mahony, 9 Iowa, 344. 
 
 2 Thayer v. Luce, 22 Oliio St. 62. 
 
 ^ Tallman v. Franklin, 14 N. Y. 584; Benjamin on Sales, § 222. 
 
 ^ ninde V. Whitehouse, 7 East, 558; Peirce v. Corf, L. R. 9 Q. B. 210; 
 Kenworthy v. Schofleld, 2 B. & C. 945 ; Saunderson v. Jackson, 2 B. & P. 
 238; Allen t). Bennett, 3 Taunt. 169; Cooper o. Smith, 15 East, 103; 
 Jackson v. Lowe and Lyman, 1 Bing. 9 ; Haughton o. Morton, 6 Ir. C. L. 
 329; McMullen v. Helberg, 4 L. R. Ir. 94; Richards v. Portor, 6 B. & C. 
 437; SmithB. Surman, 9B. &C. 561; Archer «. Baynes, 5 Ex. 625; 20 L. 
 J. Ex. 64; Johnson v. Buck, 35 N. J. L. 339; Morton v. Dean, 13 Met. 
 388; Smith v. Jones, 66 Ga. 338; Freeportij. Bartol, 3 Greenl. 340; Ridg- 
 •way ». Ingram, 50 Ind. 148; Beckwithi). Talbot, 95 U. S. 289. 
 
 * Peek V. North Staffordshire R. R. Co., 10 H. L. C. 472-569, Lord 
 Westbury ; " In order to embody in the letter any other document or 
 memorandum, or instrument in writing, so as to make it part of a special 
 contract contained in that letter, the letter must either set out the writing 
 referred to, or so clearly and definitely refer to the writing that, by force 
 of the reference, the writing itself becomes part of the instrument it re- 
 fers to." See, also, Moale v. Buchanan, 11 Gill & J. 322 ; Frank v. Miller, 
 38 Md. 461. Mr. Story says, § 272, that " no room must be left for doubt 
 that they all ref erto the same agreement ; and, therefore, it should appear 
 
 91 
 
§ 75 STATUTE OF FRAUDS, IN RKSPECT TO SALES. [CH. VI. 
 
 required is that the signed part should indicate that part of 
 the contract is to be found in some other paper or papers.' 
 But it must be observed that the signed paper must refer to 
 the unsigned paper; it is not sufficient or necessary that the 
 unfeigned paper should refer to the signed paper. ^ 
 
 If the communication refers to all the terms of the con- 
 tract of sale, it will be a sufficient compliance with the 
 requirements of the statute, although in the same com- 
 munication, the writer repudiates the contract.^ 
 
 Although it has not been so decided in any case, it would 
 appear reasonable that the statutory requirement will be 
 
 from intrinsic evidence in the papers, that such is the fact." Citing in 
 support of this proposition, Boydell v. Drummond, 11 East, 142; Sandi- 
 lands ■0. Marsh, 2 B. & Aid. 680; Tawney v. Crother, 3 Bro. Ch. 320, note 
 (a) ; Coles v. Trecothick, 9 Ves. 250 ; Brettel v. Williams, 4 Exch. 523 ; 
 Ida u. Stanton, 15 Vt. 685; Toomerc. Dawson, Cheves, 68; Fitzmaurice 
 V. Bayley, 9 H. L. C. 78 ; Farwell v. Mather, 10 Allen, 322 ; Hazard v. Day, 
 14 Allen, 494 ; Stocker v. Partridge, 2 Roberts, 193 ; Boardman v. Spooner, 
 13 Allen, 358; Morton v. Dean, 13 Met. 385. 
 
 ' Long V. Millar, 4 C. P. D. 450, Thesiger, L. J.: "When it is pro- 
 posed to prove the existence of a contract by several documents, it must 
 appear upon the face of the instrument, signed by the party to be charged, 
 that reference is made to another document, and this omission cannot 
 be supplied by verbal evidence. If, however, it appears from the in- 
 strument itself that another document is referred to, that document may 
 be identified by verbal evidence. A simple illustration of this rule is 
 given in Ridgway v. Wharton; there 'instructions' were referred to: 
 now instructions may be either written or verbal; but it was held that 
 parol evidence might be adduced to show that certain instructions in 
 vrriting were intended. This rule of interpretation is merely a particular 
 application of the doctrine as to latent ambiguity." See, to same effect, 
 in which the reference was to "instructions," Ridgway v. Wharton, 6 
 H. L. C. 238; " terms agreed upon," Bauman v. James, 3 Ch. 608 ; " pur- 
 chase," Long V. Millar, sup.; Shardlow v. Cotterell, 18 Ch. D. 280; 20 
 Ch. D. 90 C. A.; " our arrangement," Cave v. Hastings, 7 Q. B.D.125. 
 
 2 Brown i;. Whipple, 58 N. H. 209; Ereeport v. Bartol, 3 Greenl. 340; 
 Ridgway v. Ingram, 50 Ind. 148; Beckwithu. Talbot, 95 U. S. 289; John- 
 son V. Buck, 35 N. J. L. 339; Morton v. Dean, 13 Met. 388; Smith v. 
 Jones, 66 Ga. 338. 
 
 3 Bailey v. Sweeting, 9 C. B. (n. s.) 843 ; Eorster v. Howland, 7 H. & 
 N. 107, McLean v. Nicholl, 7 H. & N. 1016; Wilkinson u. Evans, L. R. 1 
 C. P. 407. See, contra, Richards v. Porter, 6 B. & C. 437. 
 
 92 
 
CH. VI.] STATUTE OF FRAUDS, IN KESPECT TO SALES. § 76 
 
 satisfied if the memorandum be written with pencil, instead 
 of pen and ink.^ 
 
 § 76. What the memorandum should contain — Parties, 
 subject-matter, terms — Consideration, price. — It may 
 
 be stated generally, that the memorandum should con- 
 tain every material part of the contract of sale, the names 
 of the parties, the subject-matter of the sale, and the terms 
 and conditions of the sale. 
 
 Both buyer and seller must be either named or described 
 in the contract. It will not suffice to name or describe only 
 the party to be charged by the contract. ^ It is sometimes 
 said that the memorandum must show who the buyer is and 
 who the seller is, distinguishing one from the other without 
 the aid of parol evidence.^ Yet memoranda have been 
 held to satisfy the requirement of the statute of frauds, 
 although there is nothing in the memorandum with which 
 to distinguish the buyer from the seller, their names being 
 given, without indicating directly or indirectly their exact 
 relation to the contract.* But even where it is held that 
 there must be a written distinction of one from the other, 
 the shghtest distinction is held to be sufficient.^ But it 
 
 J See Benjamin on Sales, § 231; Geary u. Physic, 5 B. & C. 234. 
 
 2 Grafton v. Cumraiugs, 99 U. S. 100; Andersons. Harold, 10 Ohio, 
 399; McElroy v. Leery, 61 Md. 397; Calkins v. Falk, 38 How. Pr. 62; 
 Lincoln v. Erie Preserving Co., 132 Mass. 129; Champion v. Plummer, 3 
 B. & P. 252; Allen v. Bennett, 3 Taunt. 169; Cooper v. Smith, 15 East, 
 103; Jacob v. Kirk, 2 M. & R. 222; Williams v. Lake, 29 L. J. Q. B. 1; 2 
 E. & E. 349; Sari v. Bondillon, 26 L. J. C. P. 78; 1 C. B. (n. s.) 188; 
 Vandenburgh B. Spooner, L. R. 1 Ex. 316; 35 L. J. Ex. 201; Newell v. 
 Radford, L. R. 3 C. P. 52; 37 L. J. C. P. 1. 
 
 5 Bailey o. Ogdens, 3 Johns. 419; Coddington ». Goddard, 16 Gray, 
 443; Sherburne v. Shaw, 1 N. H. 157; Salmon Falls Mfg. Co. v. God- 
 dard, 14 How. 458. 
 
 ' Salmon Falls Mfg. Co. v. Goddard, 14 How. 458; Sanborn ». Flag- 
 ler, 9 Allen, 474; Grafton v. Cummings, 99 U. S. Ill; Newell v. Radford, 
 L. R. 3 C. P. 52; 37 L. J. C. P. 1. 
 
 ' Butler*. Thompson, 92 U. S. 412; Newberry v. Wall, 84 N. Y. 676; 
 
 93 
 
§ 7G STATUTE OP FRAUDS, IN RESPECT TO SALES. [CH. VI. 
 
 seems that the names of both parties must appear as parties 
 to the contract. If the name of one of the parties appears 
 in the memorandum in some other way than as a party, 
 as, for example, in the description of the goods, it will 
 not be sufficient under the statute. ^ 
 
 It is not necessary that the name should be written in 
 full. The initials will suffice, parol evidence being admis- 
 sible to show whose initials they are.^ 
 
 But, instead of the name or initials of the parties being 
 given in the memorandum, the parties may be identified 
 by a written description of them, referring to their con- 
 nection with some relationship or office, and the like. If 
 parol evidence can clearly show who is meant by the 
 description, its general character will not be objection- 
 able.* 
 
 It is manifestly requisite that the subject-matter of the 
 sale should be distinctly described in the memorandum and 
 any material mistake in the same will make the memoran- 
 dum sufficient to satisfy the requirement of a writing.* 
 But while the quantity and quality must in some way be 
 
 Coate y. Terry, 24 Up. Can. C. P. 571; Coddington v. Goddard, 16 Gray, 
 436; Sanborn v. Flagler, 9 Allen, 474. 
 
 ' Vandenburgi). Spooner, L. E. 1 Ex. 316; 35 L. J. Ex. 201. In that 
 case, the memorandum was as follows : " D. Spooner, agrees to buy the 
 whole of the lots of marble purchased by Mr. Vandenburgh, now lying 
 at the Lyme Cobb, at Is. per foot." Thenameof the seller only appears 
 in the description of the marble. Held to be insufficient. 
 
 2 Salmon Falls Mfg. Co. v. Goddard, 14 How. 446; Grafton v. Cum- 
 mings, 99 U. S. Ill; Newellw. Radford, L. R. 3 C. P. 52; 37 L. J. C. P. 
 I ; Sanborn v. Flagler, 9 Allen, 474. 
 
 3 " Proprietor," Sa;e v. Lambert, 18 Eq. 1; Rossiter «. Miller, 46 L. 
 J. Ch. 228; 5Ch. D. 648, C. A.; s. c. 3 App. Cas. 1124; " Vendors," 
 Commius v. Scott, 20 Ex. 11 ; "A trustee selling under a trust for sale," 
 Catling V. King, 5 Ch. D. 660, C. A. But " vendor " was held to be m- 
 sufflcient in Potter v. DuflSeld, 18 Eq. 4. See, also, Thomas v. Brown, 
 1 Q. B. D. 714. 
 
 * Sarli;. Bourdillon, 26 L. J. C. P. 78; 1 C. B. (n. s.) 188; Thornton 
 B. Kempster, 5 Taunt. 786; May v. "Ward, 134 Mass. 127; McBlroy «. 
 Buck, 35 Mich. 434; Waterman u. Meigs, 4 Cash. 497. 
 94 
 
CH. VI.] STATUTE OP FIIAUDS, IN KESPECT TO SALES. § 76 
 
 described in the memorandum,^ yet the exact weight need 
 not always be given, as where the memorandum indicated 
 a sale of " 39 bales of cotton, at 40 cents." ^ 
 
 It has always been a much mooted question, whether the 
 statute of frauds required a statement in writing of the con- 
 sideration. The English courts have distinguished between 
 the operation of the fourth and seventeenth sections of the 
 statute, maintaining that the fourth section requires written 
 evidence of the consideration to make a complete statement 
 of the agreement^ while the seventeenth section, referring 
 to bargains instead of agreements, is satisfied without a 
 statement of the consideration, with the limitation to be 
 mentioned, the courts holding that there was a sufficient 
 difference in the meaning of the terms agreement and bar- 
 gain to justify the distinction as to the effect of the two 
 sections.* But the statement in writing of the considera- 
 tion of the coiftract of sale is waived only when the parties 
 have not agreed upon a fixed price for the goods, and 
 where the ascertainment of the price is left to a determina- 
 tion of the market price or value of the goods. Where the 
 price is agreed upon, it should be stated in the memorandum, 
 and its omission will be fatal to the validity of the contract.' 
 
 ^ See cases cited in preceding note. 
 
 2 Pennimau v. Hartshorn, 13 Mass. 87. 
 
 3 Wain V. Warlters, 5 East, 107; Saunders v. Wakefield, 4 B. & Aid. 
 595; Jenkins v. Eeynolds, 3 B. & B. 14; Morley v. Boothby, 3 Bing. 107; 
 !Fitzmaurice v. Bayley, 9 H. L. C. 79. 
 
 * Laythoorp v. Bryant, 2 Bing N. C. 735, Tindall, C. J.: " Wain v. 
 Warlters was decided on tlie express ground that an agreement under 
 the fourth section imports more than a bargain under tlie seventeenth." 
 
 « Ide V. Stanton, 15 Vt. 685 ; Phelps v. Stillings, 60 N. H. 505; Kinloch 
 V. Savage, Speer Eq. 472; Soles v. Hickman, 20 Pa. St. 180; O'Neil «. 
 Crane, 67 Mo. 250; Smith v. Arnold, 5 Mason, 416; Ashcroft ■«. Butter- 
 worth, 136 Mass. 511; Adams v. McMillan, 7 Port. 73; Argus Co. v. 
 Albany, 56 N. Y. 495; Norton B. Gale, 95 111. 538; Packard ». Kichardson, 
 17 Mass. 122; Levy I). Merrill, 4 Greenl. 180; Sage v. Wilcox, 6 Conn. 81; 
 Millerc. Irvine, 1 Dev. &Bat. 103 ; Violett b. Patton, 5 Cranch, 142; Taylor 
 V. Boss, 3 Yerg. 330; Acebal v. Levy, 10 Bing. 383; Elmore v. Kingscote, 
 SB. &C.583; Hoadley v. McLalne, 10 Bing. 482; 4 Mo. & Scott. 340; 
 
 95 
 
§ 76 STATUTE OF FRAUDS, I\ RESPECT TO SALES. [CH. VI. 
 
 As will be seen from the authorities cited, this ruling is 
 generally accepted in the United States, but in New York 
 until a, late day,^ and apparently in other States,^ the agree- 
 ment as to price must be included in the memorandum, 
 although no price has been fixed upon. 
 
 It is also required that the memorandum should contain 
 the stipulations as to the credit and time of performance 
 if there be any such stipulations. Tn the absence of ex- 
 press agreement, it is usually understood to be a cash 
 transaction , to be performed immediately, and this is implied 
 by law.^ The same rule applies to agreements as to time 
 of delivery of the goods,* and to any other terms and con- 
 ditions which the parties may have agreed upon. They 
 must all be included in the memorandum, in order to make 
 the contract of sale valid. ^ But if all the terms and con- 
 ditions of the sale, the names of the parties, and the sub- 
 
 Boydell v. Drummond, 11 East, 142; Ashcroft v. Monin, 4 M. &G. 450; 
 Jeffcott V. N. B. OH Co., 8 Ir. B. C. L. 17; Goodman v. Griffiths, 26 L. J. 
 Ex. 145; 1 H. & M. 574. But it is not fatal if tlie price is only partly 
 given, as where it was stated to be " 94 cents," the words " per square 
 foot " being omitted by mistake. Gowen v. Klous, 101 Mass. 449. 
 
 1 Sears v. Brink, 3 Johns. 210; Leonard v. Vredenburg, 8 Johns. 29. 
 
 2 See Stephens v. Winn, 2 Nott & McCord, 373 n. ; Neelson v. Sanbome 
 2 N. H. 414. lu James v. Mulr, 33 Mich. 224, the rule is applied to ex- 
 ecutory contracts. 
 
 3 Wright V. Weeks, 25 N. Y. 158; Williams v. Robinson, 73 Me. 186; 
 Norris«. Blair, 39 Ind. 90; Hawkins v. Chace, 19 Pick. 502; Mahalen v. 
 Dublin, &c., Distillery Co., 11 Ir. R. C. L. 83; Valpy v. Gibson, 4 C. B. 
 835; Davis v. Shields, 26 Wend. 341; Salmon Falls Mfg. Co. v. Goddard, 
 14 How. 446; Sales v. Hickman, 20 Pa. St. 180; Elfe v. Godsden, 2 
 Rich. (s. c.) .''73; Morton v. Dean, 13 Met. 388; Buck v. Pickwell, 1 Will- 
 iams (Vt.), 167; O'Donnell o. Leeman, 43 Me. 158. 
 
 * Kriete v. Myer, 61 Md. 558; Smiths. Shell, 82 Mo. 215; Hawkins v. 
 Chace, 19 Pick. 502. 
 
 '' Riley v. Farnsworth, 116 Mass. 223; Oakman i;. Rogers, 120 Mass. 
 214; Broadman v. Spooner, 13 Allen, 353 C" subject to the buyer's 
 approval"); Peltiers. Collins, 3 Wend. 459, an express warranty; 
 Ilinde v. Whitehouse, 7 East, 658; Peirce ». Corf., L. B. 9 Q. B. 210; 
 Rishton V. Whatmore, 8 Ch. D. 467; Archer v. Baynes, 6 Ex. 625; 20 L. 
 J. Ex. 54; Haughton v. Morton, 6 Ir. R. C. L. 329. 
 96 
 
CH. VI. J STATUTE OF FRAUDS, IN RESPECT TO SALES. § 77 
 
 ject-matter of the sale are sufficiently described in the 
 memorandum, it will be sufficient if the memorandum as- 
 sumes the form of an offer, and the absence of any written 
 evidence of the acceptance of the offer will not invalidate 
 the contract, so far as the obligation of the party signing 
 is concerned. The acceptance may be proved by parol.^ 
 
 § 77. Signature of the party to be charged. — The re- 
 quirement of a signature to the memorandum is very liber- 
 ally construed by the courts, and whatever has been done 
 with the intention of signing is generally held to be suffi- 
 cient. The signature may be written out in full, or it may 
 consist only of the initials,'' or a fictitious name,^ or it may 
 be by any other mark, which was used in the place of an 
 ordinary signature.* It may be written in pencil,^ or it 
 may consist of a printed or stamped name.^ 
 
 1 Warner v. Wellington, 3 Drew, 523; 25 L. J. Ch. 662; Clarke v. Gar- 
 diner, 12 Ir. C. L. B. 472; Smith v. Neal, 2 C. B N. S. 67; 26 L. J. C. P. 
 143; Liverpool Borough Bank v. Eccles, 4 H. & N. 139; 28 L.J. Ex. 123; 
 Reuss V. Picksley, L. R. 1 Ex. 332; 35 L. J. Ex. 218; Justice v. Lang, 42 
 N. Y. 493; Williams I). Robinson, 73 Me. 186; Mason v. Dicker, 72 N. 
 Y. 698; Barstow v. Gray, 3 Greenl. 409; Old Colony K. R. Co. v. Sears, 
 6 Gray, 25 ; Lo wber u. Connit, 36 Wis. 176 ; Lowry u. MehafEey, 10 Watts, 
 387; Gartell v. Stafford, 12 Neb. 552; Sanborn v. Flagler, 9 Allen, 474; 
 Smith V. Smith, 8 Blackf. 208; Penniman v. Hartshorn, 13 Mass. 87; 
 Shirley v. Shirley, 6 Blackf. 452; Ivory v. Murphy, 36 Mo. 584; De 
 Cordove v. Smith. 9 Tex. 129. 
 
 2 Sanborn v. Flagler, 9 Allen, 474; Palmer ». Stephens, 1 Denlo, 478; 
 Merchants' Bank v. Spicer, 6 Wend. 443; Salmon Falls Mfg. Co. v. God- 
 dard, 14 How. 446; Sweet ». Lee, 3 M. & G. 542; Caton v. Caton, L. R. 
 2 H. L. C. 127, 143; Chichester v. Cobb, 14 L. T. N. S. 433. 
 
 ^ Augur V. Couture, 68 Me. 427. 
 
 ^ Huberts. Moreau, 12 Moore C. P. 216; 2 C. & P. 528; Bickley ». 
 Keenan, 60 Ala. 293; Madison v. Zabriskie, 11 La. (O. S.) 247; Tagiasco 
 V. Molinan, 9 La. (0. S.) 512; Brown v. Butchers' Bank, 6 Hill, 443. See 
 Baker u. Dening, 8 A. & E. 94. 
 
 ' Merritt v, Clason, 12 Johns. 102; Clasonu. Hartley, 14 Johns. 484; 
 Draper v. Pattina, 2 Speers, 292; Greary v. Physic, 5 B. & C. 234. 
 
 ' Bennett v. Brumfltt, L. R. 3 C. P. 28; Boardmau v. Spooner, 13 
 Allen, 353; Brayley v. Kelly, 25 Minn. 160. 
 
 7 97 
 
§ 78 STAT0TE OF FRAUDS, IN RESPECT TO SALES. [CH. VI. 
 
 If the statute requires the memorandum to be subscribed, 
 the signature can only be made at the bottom of the writ- 
 ing. A signature in any other place will not satisfy the 
 requirement of the statute.^ But where the statute simply 
 provides that the memorandum shall be signed by the party 
 to be charged, the signature may appear in any part of the 
 writing. But in that case it must appear that the writing 
 of the name must have been done with the intention of 
 authenticating the memorandum ; and it must bear such a 
 grammatical relation to the memorandum, as to show a 
 reference to every part of it. If in writing the name else- 
 where than at the foot of the paper, there was no intention 
 of executing the memorandum in compliance with the 
 statute of frauds, it is not a sufficient signature.* 
 
 § 78. Agent duly authorized. — The statute provides 
 that the memorandum of the sale should be signed by the 
 parties to be charged, or their agents thereunto duly author- 
 ized. The agent must therefore be authorized, in order 
 that his signature may satisfy the statute ; and he must, of 
 course, be free from incapacity to act as agent. It has 
 been held that the agent must be some third person, and 
 cannot be the opposing party to the contract.* But the 
 better opinion is that one party might act as agent of the 
 other in signing the memorandum, when requested so to 
 do ; but there is never any implied authority for him to act 
 as agent, although, on account of some other relation which 
 he bears to the transaction, as where he is also the auction- 
 
 ' See Davis v. Shields, 26 Wend. 341; Vlele ». Osgood, 8 Barb. 130 j 
 James v. Patten, 6 N. Y. 9. 
 
 2 Hawkins v. Chase, 19 Pick. 502; Penniman v. Hartshorn, 13 Mass. 
 87 : Drury v. Young, 58 Md. 546 ; Schneider v. Norris, 2 M. & S. 286 ; 
 Johnson v. Dodgson, 2 M. & W. 663; Durrell v. Evans, 1 H. & C. 174; 31 
 L. J. Ex. 337; Tourret v. Cripps, 48 L. J. Ch. 667; Hubert v. Treherne, 
 3 M. & G. 743; Caton«. Caton, L. R. 2 H. L. C. 127. 
 
 » Sharman v. Brandt, L. E. 6 Q. B. 720; Wright v. Dannah, 2 Camp. 
 203. 
 
 98 
 
CH. VI. j STATUTE Or FRAUDS, IN RESPECT TO SALES. § 78 
 
 eer, he would ordinarily have that implied authority. 
 When the vendor act.s as the auctioneer of his own goods, 
 he does not have by implication the authority to bind the 
 vendee by his signed entries of sale.^ 
 
 In the case of private sales, no agent is authorized to sign 
 for either party, vvithout his knowledge or consent. There 
 is never any implied agency in private sales.^ And the 
 agency is required to be established by clear and explicit 
 evidence, there being no presumption in favor of the 
 authorization of the agency.^ 
 
 But an auctioneer has the implied authority to bind both 
 parties by his signature to the memorandum of sale, which 
 he makes at the time of sale.* And the same implied 
 authority is conceded to the auctioneer's clerk, when he 
 exercises it at the time of sale, and in the presence of the 
 auctioneer and purchaser.* But it must be understood, 
 that this implied authority exists only when the sale is 
 public. The authority of an auctioneer does not apply to 
 his private sales.* And so also, where the vendor made a 
 contract of sale prior to the auction sale, the terms of which 
 merely looked to the auction sales as a means of determin- 
 
 1" Bent V. Cobb, 9 Gray, 397; Smith v. Arnold, 5 Mason, 414; Tull v. 
 David, 45 Mo. 444. But his cleric could do so, Johnson v. Buck, 35 N. J. 
 L. 342; Frost®. Hill, 3 Weud. 386. 
 
 2 Sewall V. Fitch, 8 Cow. 215; Ijams v. Hofeman, 1 Md. 435; Entz v. 
 Mills, 1 McMuIl. 653; Cathcart ■». Keinaghau, 5 Strob. 129; Meadows v. 
 Meadows, 3 McCord, 458; Bamber u. Savage, 62 Wis. 110; Carmack v. 
 Masterson, 3 Stew. & P. 411. 
 
 8 Graham v. Musson, 5 Bing. N. C. 603; Graham u. FretweU, 3 M. & 
 6. 368; Durrell v. Evans, 30 L. J. Ex. 264; s. c. 6 H. & N. 660; s. c. 31 L. 
 J. Ex. 337; 1 H. & C. 174; Murphy v. Boese, L. K. 10 Ex. 126. 
 
 * Hinde ». Whitehouse, 7 East, 558; White u. Proctor, 4 Taunt. 209; 
 Walker v. Constable, 1 B. & P. 306; Emmerson v. Heelis, 2 Taunt. 209; 
 Farebrother v. Simmons, 5 B. & Aid. 333 ; Kenworthy v. Schofleld, 2 B. 
 & C. 946: Durrell v. Evans, 31 L. J. Ex. 337; 1 H. & C. 174; Gill v. 
 Hewett, 7 Bush. 10. 
 
 « Alna V. Plummer, 4 Greenl. 258; Price v. Durin, 56 Barb. 647; 
 Harvey v. Stevens, 43 Vt. 653; Smith v. Jones, 7 Leigh, 165. 
 
 « Mews V. Carr, 26 L. J. Ex. 39 ; 1 H. & C. 484. 
 
 99 
 
§ 79 STATUTE OF FRAUDS, IN RESPECT TO SALES. [CH. VI. 
 
 ing the price, the real sale was not by auction, but had 
 preceded it; and in such a case, the auctioneer was not the 
 agent of both parties for the purpose of signing the 
 memorandum.^ 
 
 The authority of the auctioneer to represent and bind the 
 vendor is express, or is implied from an express contract 
 of hiring. But his authority to bind the buyer rests upon 
 different grounds. The necessity of the case requires that 
 the auctioneer should have the authority to bind the buyer 
 by his entries, since there is no reasonable opportunity, in 
 the course of an auction sale, to secure the buyer's own 
 signature to a memorandum. There is, in fact, no substan- 
 tial fact, from which the authority to bind the buyer may 
 be implied. But, for the purpose of obtaining a show of 
 authority, it is held that the entry and signature must be 
 made in the presence of the buyer, his silence or acqui- 
 escence operating as a sort of ratification of the auctioneer's 
 assumption of authority.^ In some of the States, the 
 memorandum is required by statute to be made in a " sale 
 book" and at the time and place of sale.^ 
 
 § 79. Broker's bought and sold notes. — Brokers also 
 have this implied authority to bind both parties by their 
 
 1 Bartlett v. Purnell, 4 A. & E. 792. 
 
 2 " By what authority does he (the auctioneer) write down the pur- 
 chaser's name? By the authority of the purchaser. These persons bid 
 and announce their biddings loudly, and particularly to be heard by the 
 auctioneer. For what purpose do they do this? That he may write 
 down their names opposite to the lots. Therefore, he writes the name 
 by the authority of the purchaser, and he is an agent for the purchaser." 
 Lord Mansfield in Emmerson v. Heelis, 2 Taunt. 38. See Gill v. Bictnell, 
 2 Cush. 355 ; M'Comb v. Wright, i Johns. Ch. 659 ; Crooks v. Davis, 6 
 Grant (Ont.), 317. And if the memorandum is made at any other sub- 
 sequent time, the consent of the buyer to its execution must have been 
 obtained. Horton v. McCarty, 58 Me. 394; Smith v. Arnold, 5 Mason, 
 414;. Bamber v. Savage, 62 Wis. 113; Flintoff v. Elmore, 18 Up. Can. C. 
 P. 274. 
 
 3 See Hicks v. Whitmore, 12 Wend. 648; Craig v. Godfrey, 1 Cal. 415. 
 100 
 
CH. VI.] STATUTE OF FKAUDS, IN RESPECT TO SALES. § 79 
 
 signed memoranda of the sales they effect.^ But this im- 
 plied authority only exists where the broker actually as- 
 sumes to act as the agent of both parties. This is not usual 
 in the United States, and if the memorandum is made with 
 no intention of binding both parties, it will not have that 
 effect.2 
 
 In England, it is very common for brokers, in effecting 
 sales, not only to make an entry of them on their sales 
 books, and sign that entry, but also to issue what are called 
 bought and sold notes, the bought note to the buyer, in- 
 forming him that the broker had bought for him certain 
 goods on the terms mentioned ; and the sold note to the 
 vendor, announcing the sale of his goods. No difficulty is 
 experienced when the entry and the bought and sold notes 
 agree with one another. But where they vary in the state- 
 ment of terms, it becomes a difficult question to determine 
 which must be taken as the true representation of the cout 
 tract of sale. The employment of bought and sold notes 
 is so uncommon in America, that the matter has not been 
 very carefully considered by our courts.* But in England, 
 these questions have been very minutely discussed, and the 
 courts have, through a long process of evolution, settled 
 pretty much every thing of difficulty connected with it, of 
 • coursCj after making allowances for a few irreconcilable 
 decisions. 
 
 Although it was once held to the contrary,^ it is now 
 
 1 See Butler v. Thomson, 92 U. S. 412; Newberry v. Wall. 84 N. Y. 
 576; Coddington B. Goddard, 16 Gray, 436. So have their clerks. Will- 
 iams V. Wood, 16 Md. 220. 
 
 2 Shaw V. Finney, 13 Met. 453 ; Aguire «. Allen, 10 Barb. 74. 
 
 2 See on this subject, Snydomu. Clark, 5 Sandf. 133; Bacon v. Eccles, 
 43 Wis. 241 ; Calkins v. Falk, 1 Abb. App. 291; Canterberry v. Miller, 75 
 111. 355; Phippen v. Hylan d, 19 Up. Can. C. P. 416; Butters v. Glass, 31 
 Up. Can. Q. B. 379. 
 
 ■• Cummiug v. Roebuck, Holt, 172; Thornton v. Menx, M. & M. 43; 
 Groom v. Aflalo, 6 B. & C. 117; Trueman v. Loder, 11 A. & E. 509; Town- 
 end V. Drakeford, 1 Car. & K. 20. 
 
 101 
 
§ 79 STATUTK OF FRAUDS, IN RESPECT TO SALES. [CH. VI. 
 
 settled that the broker's sigaed entry in his " sales book " 
 constitutes the binding contract, and not the bought and 
 sold notes. 1 But where there is no signed entry in the 
 sales book, either no entry at all or an unsigned entry, the 
 bought and sold notes will constitute a sufficient proof of 
 the contract.^ If there be no variance between the notes, 
 the contract may be proved by the introduction of only one 
 of the notes.* And the presumption is always against there 
 being a variance. But, of course, the defendant can always 
 establish a variance by the introduction of the other note.* 
 
 If there is a variance between the bought note and the 
 sold note, the signed entry, if there be one, will govern 
 and determine what the contract is. But if the bought 
 and sold notes agree, but they differ from the signed entry, 
 then the notes, if accepted by the parties, will be con- 
 sidered as evidence of a new contract which the parties 
 have thus made.^ But if there is no signed entry, and the 
 bought and sold notes fail to agree, and there is no other 
 writing setting forth the terms of the contract, then there 
 is no valid contract, and the parties are not bound by the 
 transaction.^ 
 
 But a variance is not caused by a mere difference of 
 language, provided the meaning of the several memoranda 
 is the same.' 
 
 1 Thornton v. Charles, 9 M. & W. 802; Heyman v. Neale, 2 Camp. 
 337; Slevewright u. Archibald, 20 L.J. Q. B. 529; 17 Q. B. 115; Thomp- 
 son V. Gardiner, 1 C. P. D. 777. 
 
 2 Groom v. Aflalo, 6 B. & C. 117; Slevewright ». Archibald, 20 L. J. Q. 
 B. 529; 17 Q. B. 115. 
 
 ' Hawes v. Forster, 1 Mood. & Rob. 368. 
 * Hawes v. Forster, 1 Mood. &Rob. 368. 
 
 5 Hawes V. Forster, 1 Mood. & Rob. 368 ; Thornton v. Charles, 9 M. & 
 W. 802; Sievewright ». Archibald, 17 Q. B. 115; 20 L. J. Q. B. 529. 
 
 6 Thornton u. Kempster, 6 Taunt. 786; Gumming i). Roebuck, Holt, 
 172; Thornton v. Meux, 1 M. & M. 43; Grant ». Fletcher, 6 B. & C. 436; 
 Gregson v. Rucks, 4 Q. B. 747; Sievewright v. Archibald, 17 Q. B. 115; 
 20 L. J. Q B. 529. 
 
 ' Bold V. Rayner, 1 M. & VV. 342; Sievewright v. Archibald, 20 L. J. 
 102 
 
CH. VI.] STATUTE OF FRAUDS, IN RESPECT TO SALES. § 80 
 
 § 80. Principal's name need not be signed. — While it 
 is tlie genei'al rule of the common law that the contract 
 should run in the name of the principal, in order to make 
 it his contract, the statute of frauds is held not to require 
 such a signature to hold the real principal on the contract. 
 The requirement of the statute is satisfied if the memoran- 
 dum is signed by an agent, in his own way, thereunto duly 
 authorized. In such a case, the other party has his right 
 of election, whether he shall hold the agent or principal 
 liable.^ 
 
 Q. B. 529; 17 Q. B. 115; Eogers v. Hadley, 2 H. & C. 227; 32 L. J. Ex. 
 227: Kempson v. Boyle, 3 H. & C. 763; 34 L. J. Ex. 191. 
 » See ante, § 73. 
 
 103 
 
CHAPTEE Vn. 
 
 THE TRANSFER OF TITLE. 
 
 Section 82. Executory and executed contracts of sale distinguished— 
 Importance of the question. 
 
 83. The transfer of title governed primarily by intention of the 
 
 parties. 
 
 84. Delivery v^hen essential to transfer of title. 
 
 84a. Delivery how far essential to transfer of title as against 
 creditors and subsequent purchasers. 
 
 85. Delivery without transfer of title — Reservation of jus dis- 
 
 ponendi — Prepayment of price. 
 
 86. Sale of specific goods unconditionally. 
 
 87. Sale of specific goods conditionally. 
 
 88. Sale of goods not specific. 
 
 89. What constitutes a sufficient appropriation in fiales of goods 
 
 not specific. 
 
 § 82. Executory and executed contracts of sale distin- 
 guished — Importance of tlie question. — The object of 
 all contracts of sale is to transfer the title of the goods. 
 As long as the title or possession of the goods is not trans- 
 ferred, still remains in the vendor, the contract remains 
 executory; and it becomes executed when the title and 
 possession are both transferred to the vendee. It is an im- 
 portant question in many cases, when the title has been 
 transferred, either to determine on whom the loss will fall, 
 where the goods have been destroyed or lost,^ or to ascer- 
 
 1 See Rugg v. Minett, 11 East, 200; Zagney v. Furnell, 3 Camp. 240; 
 Logan V. LaMesurier, 6 Moore P. C. 116; Gilmour v. Supple, 11 Moore 
 P. C. 551; Martineau v. Kitching, L. R. 7 Q. B. 436; Anderson v. Morice, 
 1 App. Cas. 713; Ex. Ch. L. R. 10 C. P. 609; s. c. ib. 68; Anglo-Egyptian 
 Navigation Co. v. Bennie, L. R. 10 C. P. 271; Oliphaut v. Baker, 5Denio, 
 379; Gilbert v. N. Y. Cent. R. E. Co., 4 Hun, 378; Joyce v. Adams, 8 N. 
 104 
 
CH. VII. 1 THE TRANSFER OF TITLE. § 83 
 
 tain whether the creditors of the vendor and vendee can 
 attach or levy on on the subject-matter of the sale,^ There 
 may be other reasons for determining the time and fact of 
 transfer of title, such as to which of two vendees owns 
 the goods, and what form of action must be used in the re- 
 covery of goods, but these two are the common and most 
 important.^ 
 
 § 83. The transfer of title governed primarily by in- 
 tention of parties. — The primary factor in the determina- 
 tion of the transfer of title is in the intention of the parties. 
 This intention may be expressed or it may be implied from 
 the surrounding circumstances and the condition of the 
 goods. ^ And what the intention of the parties is always 
 
 Y. 291 ; Lingham v. Eggleston, 27 Mich. 324 ; Pleasants v. Pendleton, 6 
 Rand. 473; Hutchinson ». Hunter, 7 Pa. St. 140; Waldo v. Belcher. 11 
 Ired. 609. 
 
 1 Brewer v. Smith, 3 Greenl. 44; Golder u. Ogden, 15 Pa. St. 358; 
 Weld V. Cutler, 2 Gray, 195; Hurte v. Hires, 39 N. J. L. 4; 40 N. J. L. 
 681; Hanson v. Meyer, 6 East, 614; Acraman v. Morris, 8 C. B. 449; 
 Woods V. Russell, 5 B. & Aid. 942; Clarke v. Spence, 4 A. & E. 448; Laid- 
 ler V. Burllnson, 2 M. & W. 602; Wood v. Bell, 5E. & B. 772; 25 L. J. 
 Q. B. 148; GosSB. Quintoa, 3 M. & G. 825; Hale v. Huntley, 21 Vt. 147; 
 Comfort V. Klersted, 26 Barb. 472 ; Smart v. Batchelder, 51 N. H. 140 ; 
 Riddles. Varnum, 20 Pick. 280; Ward v. Shaw, 7 Wend. 404; Fosdick 
 V. Schall, 99 U. S. 235. 
 
 2 Kimberly v. Patchin, 19 N. Y. 330 ; Horr v. Barker, 8 Cal. 603 ; 
 Pfistner v. Bird, 43 Mich. 14; Crofoot v. Bennett, 2 N. Y. 258; Kershaw 
 B. Ogden, 34 L. J. Ex. 159; 3 H. & C. 717; Barrow v. Coles, 3 Camp, 92; 
 Mires v. Solesby, 2 Mod. 243; Groat v. Gile, 51 N. Y. 431; Cushman v. 
 Holyoke, 34 Me. 289; Devane v. Fenuell, 2 Ired. 37; Davis v. Hill, 3 N. 
 H. 382; Strauss v. Ross, 25 Ind. 300. 
 
 3 Elgee V. Cotton Cases, 22 Wall. 187; Hatc^ v. Oil Co., 100 U. S. 131 ; 
 Bellows V. Wells, 36 Vt. 599; Fitch v. Burk, 38 Vt. 689; Russell v. Car- 
 rington, 42 N. Y. 118; 1 Am. Rep. 498; Callaghan v. Myers, 89 111. 570; 
 Weeds. Boston Ice Co., 12 Allen, 377; Morse v. Sherman, 106 Mass. 
 433; Uugan v. Nichols, 125 Mass. 73; Terry v. Wheeler, 25 N. Y. 525; 
 Cunningham v. Ashbrook, 20 Mo. 553 ; Hurd v. Cook, 75 N. Y. 454 ; Stone 
 V. Peacock, 35 Me. 388; Lester w. East, 49 Ind. 588; Ogg v. Sluter, L. R. 
 10 C. P. 459; Sewell v. Eaton, 6 Wis. 490; Fletcher v. Ingram, 46 Wis. 
 201; Gleason v. Knapp, 26 Up. Can. C. P. 553; Ross v. Eby, 28 Up. Can. 
 
 105 
 
§ 84 THE TRANSFER OF TITLE. [CH. VII. 
 
 a question of fact for the jury.^ But in many cases, if not 
 in most of the cases, the evidence, not only does not dis- 
 close what the intention of the parties was, but in fact 
 shows that the parties had no clearly defined intentions as 
 to the time and fact of the transfer of title. In all such 
 cases, the intention must be implied from the facts of the 
 particular case.^ But where the intention is express that 
 the tille shall or shall not pass at a specified time, it does 
 not matter what implication as to intention the facts would 
 raise. The express intention supersedes the implied inten- 
 tion, anjd can be effectuated almost under any condition of 
 facts.' 
 
 § 84. Delivery when essential to transfer of title. — 
 
 The subject of delivery is fully treated elsewhere.* We 
 are in this connection only concerned with the effect of 
 delivery on the question of transfer of title. Unfor- 
 tunately, the word " delivery " is used in more than one 
 sense, and in consequence of this divergence of meaning 
 the authorities have become confusing on many important 
 points. The simplest sense in which the word is used 
 makes the word synonymous with " transfer of posses- 
 
 1 C. P. 316; Llngham». Eggleston, 27 Mich. 324; Spragne v. King, 1 
 Pugs. & B. 299; Gibson v. McKean, 3 Pugs. 299. 
 
 ' George v. Stubbs, 26 Me. 250; Marble v. Moore, 102 Mass. 443 
 Kidder v. McKnight, 13 Johns. 294; McClurg v. Kelly, 21 Iowa, 508 
 Caywood v. Timmons, 31 Kan. 394; Riddle v. Varnum, 20 Pick. 280 
 Merchants' Nat. Bank v. Bangs, 102 Mass. 296; Dyer v. Llbby, 61 Me. 45 
 Fuller V. Beau, 34 N. H. 290; Kelsea v. Haines, 41 N. H. 253; Wilkinson 
 V. Holllday, 33 Mich. 386. But if all the evidence clearly points in one 
 direction, the court may direct the jury to find a verdict accordingly. 
 See Wigton v. Bowley. 130 Mass. 254. 
 
 2 See Riddle v. Varnum, 20 Pick. 283; Stephens v. Santee, 49 N. Y. 36; 
 Chapman v. Shepard^ 39 Conn. 413; Bethel Steam Mill Co. v. Brown, 67 
 Me. 18. 
 
 3 See Turley v. Bates, 2 Hurl. & C. 200; Logan o. Le Mesurier, 11 
 Moore P. C. C. 116 ; Wilkinson v. Holiday, 33 Mich. 386. 
 
 * See post, Ctiapter VIII. For a discussion of the delivery in the 
 case of a sale of goods not specific, see post, § 89. 
 lOO 
 
CH. VH.J TPE TRANSFER OF TITLE. § 84 
 
 sion." But it is very often used in the sense of a transfer 
 of title, particularly where, in tlie absence of any actual 
 transfer of possession, the writers speais of " constructive 
 delivery." If the word is used in the latter sense, and the 
 doctrine of " constructive delivery" is recognized in the 
 extreme to which it has been carried by some of the au- 
 thorities, it would be neither wrong nor misleading to 
 ai<sert that no title ever passes without delivery, either 
 actual or constructive.^ But if by " delivery " is meant a 
 transfer of the possession from the vendor to the vendee, 
 or his duly authorized agent, it is equally sound to state, 
 that, as between the parties to the sale,^ the title can pass, 
 if the parties so intend, although there be no delivery. 
 Delivery is not essential to the transfer of title, unless it 
 be shown that the parlies did not intend to pass the title 
 before delivery.^ But where, by the contract of sale, the 
 
 1 See Dugan v. Nichols, 125 Mass. 43; Phlllbrook v. Eaton, 134 Mass. 
 400; McNamara v. Edinister, 11 Hun, 597; Bradley v. Wheeler, 4 
 RoBerts, 19; Merrill v. Parker, 24 Me. 89; Middlesex Co. v. Osgood, 4 
 Gray, 447; Goddard v. Binney, 115 Mass. 450; Muckey «. Howenstein, 3 
 Thomp. & C. 28; Means v. Williamson, 37 Me. 656; Chapman d. Searle, 
 3 Pick. 38; Partridge v. Wooding, 44 Conn. 277; Chamberlain b. Farr, 23 
 Vt. 265. 
 
 2 As to the right of creditors, see post, § 84a. 
 
 3 Gilmour v. Supple, 11 Moore P. C. 551 ; Calcutta Co. v, De Mattos, 
 32 L. J. Q. B. 326; Simmons v. Swift, 5 B. & C. 857; Tarling v. Baxter, 6 
 B. & C. 360; Dixon v. Yates, 5 Earn. & Ad. 313; Hinde v. Whitehouse, 7 
 East, 558; Wade v. Moffltt, 21 111. 110; 74 Am. Dec. 79; Neweomb v. 
 Cabell, 10 Bush, 460, 468 ; Taylor v. Twenty-five Bales of Cotton, 26 La. 
 An. 247; Nance v. Metcalf, 19 Mo. App. 183; Kicker v. Cross, 5 N. H. 
 570; Puckett ». Reed, 31 Ark. 131; Hooben v. Bi dwell, 16 Ohio, 509; 
 Willis V. Willis, 6 Dana, 48; Potter ». Coward, Meigs, 22, 26; Pierce v. 
 Moore, 1 Tex. App. (Civ. Cas.) 911 ; Anderson v. Levyson, 1 Tex. App. 
 (Civ. Cas.) 927; Bertelson v. Bowars, 81 Ind. 512; Upton v. Holmes, 51 
 Conn. 500; Nicolopulo v. His creditors, 37 La. An. 472; Mason v. 
 Thompson, 18 Pick. 305; Brown v. Childs, 2 Duvall, 314; Tompkins v. 
 Tibbitts, 1 Hannay (N. B.) 317; Sneathen v. Grubbs, 88 Pa. St. 147; 
 Thompson v. Cincinnati, etc., R. E. Co., 1 Bond, 152; Cougar v. 
 Galena, etc., R. E. Co., 17 Wis. 477; The Venus, 8 Cranch, 275; Devine 
 V. Edwards, 101 111. 138; Sult». Woodhall, 113 Mass. 394. 
 
 107 
 
§ 84 THE TRANSFER OF TITLE. [CH VII. 
 
 vendor is obliged to make delivery of the goods to the 
 vendee in person or by agent, or by deposit at some desig- 
 nated place, instead of simply preparing the goods for 
 their removal by the vendee, the title is presumed, iu the 
 absence of any express intention of the parties to the con- 
 trary, to remain in the vendor, until there has been a de- 
 livery in accordance with the terms of the contract.^ If 
 the vendor has agreed to deliver goods at one of two 
 jilaces, before the title will pass, so as to transfer the risk, 
 he must have deposited the goods at one of the places, and 
 notified the vendee, at which place they were deposited.^ 
 But, while it is the general rule that the title does not pass 
 before delivery, where the parties have stipulated for a 
 delivery by the vendor, yet it is not always the case. If 
 the parties intended that the title shall pass before de- 
 livery, the intention will be carried out. This intention 
 may be proven hy express declaration,^ or inferred from 
 circumstances. Thus, the intention to pass title immedi- 
 ately will be inferred from the understanding of the parties 
 that the buyer must thereafter designate the place of de- 
 livery,* where the buyer employs the seller to transfer, thus 
 
 ' Pratt ». Maynard, 116 Mass. 388; Rattary v. Cook, 50 Ala. 352; 
 Washburn Iron Co. v. Russell, 130 Mass. 543; Hunt o. Thurman, 15 Vt. 
 336 ; Phelps d. Hubbard, 51 Vt. 389 ; Sanborn v. Benedict, 78 111. 309 ; 
 Henlng©. Powell, 33 Miss. 468; Bement ». Smith, IB Wend. 493; Boyd 
 V. Pollock, 27 W. Va. 75; Sedgwick v. Cottingham, 54 Iowa, 512; Pac. 
 Ironworks v. Long Island R. R. Co., 62 N. Y. 272; Denmant). Cherokee 
 Iron Co., 56 Ga. 319; Odell v. Boston, etc., R. R. Co., 109 Mass. 50; 
 Richmond Iron Works v. WoodrufE, 8 Gray, 447; Council Bluffs Iron Co. 
 ■u. Cuppey, 41 Iowa, 104; Cocker v. Franklin Hemp Co., 3 Sumn. 530; 
 Steele Works v. Dewey, 37 Ohio St. 242; Smith v. Wheeler, 7 Oreg. 49; 
 Corwith V. Colter, 82 111. 585; Taylor v. Cole, 111 Mass. 363. But see 
 Terry v. Wheeler, 25 N. Y. 520. 
 
 2 Rogers v. Van Hoessen, 12 Johns. 221. 
 
 5 Lynch v. O'Donnell, 127 Mass. 311. See Commonwealth v. Green- 
 field, 121 Mass. 40. 
 
 * Hunter v. Wetsell, 84 N. Y. 649; Higgins v. Murray, 73 N. Y. 549; 
 Weld V. Cane, 98 Mass. 152; Higgins w. Cheesman, 9 Pick. 7. 
 
 108 
 
CH. VII. J THE TRANSFER OF TITLE. § 84a 
 
 assuming the character of a carrier/ and, particularly, 
 where everything is done besides delivery, including the 
 payment of the price,^ and whenever there is evidence 
 showing that the continued possession of the goods by the 
 vendor was in the character of bailee and for the benefit of 
 the vendee.^ 
 
 It is very often important to determine whether the title 
 passes by delivery to the common carrier, in order to set- 
 tle the question of legality of the contract, where it is a 
 case of interstate commerce, and the contract is illegal in 
 one of the States and legal in the other State.* 
 
 § 84a. Delivery, how far essential to transfer of title 
 as against creditors and subsequent purchasers. — While, 
 as between the parties to the sale, the delivery of posses- 
 sion is not essential to the transfer of the title, except when 
 the contract calls for an actual delivery by the vendor; 
 yet, as against creditors and subsequent purchasers, the re- 
 tention of the possession by the vendor is held by the 
 English and American authorities to be a badge of fraud 
 upon creditors and subsequent purchasers, and as against 
 them the title of the buyer is not absolute. In many of 
 the States, including New York, Maryland, Delaware, 
 Missouri, Indiana, Iowa, Minnesota, Wisconsin, Nebraska 
 and California, as well as in England, there are statutory 
 regulations of the effect of retention of possession by the 
 
 ' Lingham v. Eggleston, 27 Mich. 324; Hobbs v. Carr, 127 Mass. 632. 
 See Whitcomb v. Whitney, 24 Mich. 486 ; Shelton v. Franlilin, 68 111. 333 ; 
 Newcomb v. Cabell, 10 Bush, 460. 
 
 2 Terry v. Wheeler, 25 N. Y. 520. See Hunter v. Wetsell, 84 N. Y. 
 549; Gray v. Mayor of New York, 46 N. Y. S. C. 494; Boynton v. Veazie, 
 24 Me. 286; Underhill v. Boom Co., 40 Mich. 660; Muskegon Boom 
 Co. V. Underhill, 43 Mich. 629 ; Bethel Steam Mills v. Brown, 57 Me. 9. 
 
 3 See Bethel Steam Mills Co. v. Brown, 57 Me. 9. 
 
 * Orcutt V. Nelson, 1 Gray, 537; Frank v. Hoey, 128 Mass. 263; Sort- 
 well u. Hughes, 1 Curtis, 244; Woolsey v. Bailey, 27 N. H. 217; Smith 
 V. Smith, 27 N. H. 244; Garland ij. Lane, 46 N. H. 245; Arnold v. Prout, 
 61 N. H. 587; Sarbeckerr. State, 65 Wis. 675. 
 
 109 
 
§ 84a THE TRANSFER OF TITLE, [CH. VII. 
 
 vendor ; but, with or without statutory regulations, the 
 same question is raised everywhere, inasmuch as the main 
 question is held to rise under the common law, and inde- 
 pendently of the English statute. Partly affected by the 
 phraseology of the statutory regulations, the authorities 
 are divided as to the effect on the rights of creditors of the 
 vendor's retention of possession. The generally pi-e vailing 
 rule is that the retention of possession by the vendor is only 
 prima facie evidence of fraud on creditors and subsequent 
 purchasers, which only becomes conclusive upon the fail- 
 ure to rebut the presumption of fraud. Such is the rule 
 in England,^ in the United States courts,^ in Alabama,^ Ar- 
 kansas,* Georgia,^ Indiana,* Kansas,' Louisiana,* Maine,' 
 
 1 Martindale v. Booth, 3 Barn. & Ad. 498 ; Lady Arundel v. Phipps, 10 
 Ves. Jr. 145; Pennell ». Davidson, 18 C. B. 355; Edwards «. Harben, 2 
 T. K. 587; Hazellngton v. GUI, 3 T. E. 620, note (a) ; Lindon v. Sharp, 6 
 M. & G. 895-898. 
 
 2 Warner v. Norton, 20 How 448. But see, contra, until recently, 
 Hamilton v. Russell, 1 Cranch, 309 ; United States v. Howe, 3 Cranch, 
 73; Meeker v. Wilson, 2 Gall. 419; Prettiplace v. Sayles, 4 Mason, 321, 
 322; United States u. Conyngham, 4 Dall. 358. 
 
 3 Hobbs V. Bibb, 2 Stew. 54; Millard ». Hall, 24 Ala. 209; Wyatt ». 
 Steward, 34 Ala. 716; Mayer v. Clark, 40 Ala. 259, 269; Maggs v. Bene- 
 dicks, 49 Ala. 512; Crawford v. Kirksey, 50 Ala. 590; 55 Ala. 282, 285. 
 
 ^ Field V. Simco, 2 Eng. 269; Hempstead v. Johnson, 18 Ark. 123, 124; 
 George v. Norris, 23 Ark. 121. 
 
 = Peck«. Land, 2 Kelly, 1; Fleming «. Townsend, 6 Ga. 103, 104; Car- 
 ter V. Stanfleld, 8 Ga. 49; Goodwyn v. Goodwyn, 20 Ga. 600; Collins v. 
 Taggart, 57 Ga. 356. 
 
 6 Watson V. Williams, 4 Blackf. 26; Case v. Winship, 4 Blackf. 425; 
 Mitter v. Harris, 9 Ind. 88 ; Kane v. Drake, 27 Ind. 29 ; Rose ». Colter, 
 76 Ind. 590. 
 
 ' Wolfley V. Rising, 8 Kan. 297; Phillips v. Eeitz, 16 Kan. 396; Denny 
 V. Faulkner, 22 Kan. 89; Fraakhouser v. Ellett, 22 Kan. 127. 
 
 8 Miltenberger v. Parker, 17 La. An. 254; Keller v. Blanchard, 19 La. 
 An. 63; Richardson v. Cramer, 28 La. An. 357; Spiney v. Wilson, 31 La. 
 An. 653; Devonshire v. Gathreaux, 32 La. An. 1132. 
 
 9 Cutter V. Copeland, 18 Me. 127; Vinuing v. Gilbreth, 39 Me. 496; 
 Sawyer ®. Nichols, 40 Me. 212; McKee v. Garceloii, 60 Me. 165; Fairfield 
 Bridge Co. v. Nye, 60 Me. 372; Farrar v. Smith, 64 Me. 74 ; Reed v. Reed, 
 70 Me. 604. 
 
 110 
 
CH. VII.] THE TRANSFER OF TITLE, § 84a 
 
 Massachusetts,^ Michigan,^ Minnesota,^ Mississippi,* Ne- 
 braska,^ New Hampshire,'* New Jersey,' New York,* North 
 Carolina,' Ohio,i° Oregon," Rhode Island,'^ South Carolina,i^ 
 
 1 Brooks V. Powers, 15 Mass. 244; Bartlett u. Williams, IPick. 288; 
 Shum-vvay v. Kutter, 7 Pick. 56; Carter t). Willard, 19 Pick. 1, 11; Pack- 
 ard V. Wood, 4 Gray, 307; Eourke v. Bullens, 8 Gray, 549 ; Veazie u. 
 Somerby, 6 Allen, 280; Burge «. Cone, 6 Allen, 412; Lanfearu. Sumner, 
 17 Mass. 110; Ingalls v. Henick, 108 Mass. 351; Dempsey «. Gardner, 
 127 Mass. 881; Harlow v. Ilall, 132 Mass. 232. 
 
 2 Jackson v. Dean, 1 Dougl. (Mlcli.) 519; Bagg «. Jerome, 7 Midi. 
 145; Natch v. Fowler, 28 Mich. 205; Molitor v. Robinson, 40 Mich. 200; 
 Webster v. Bailey, 40 Mich. 641; McLaughlin v. Lange, 42 Mich. 81; 
 Carpenter v. Graham, 42 Mich. 191. 
 
 3 Blackmani;. Wheaton, 13 Minn. 326; Vosec. Stickney, 19 Minn. 367. 
 ' Carter v. Graves, 6 How. (Miss.) 9; Rankin v. Holloway, 3 Smed. & 
 
 M. 614; Comstocks. Eayford, 12 Smed. & M. 369; Summers v. Boas, 42 
 Miss. 749; Hilliard u. Cagle, 46 Miss. 300; Ketchum v. Brenuau, 53 
 Miss. 596. 
 
 5 Robison ». Uhl, 6 Neb. 328; Morgan ». Bogue, 7 Neb. 429; Dens- 
 more V. Tomer, 11 Neb. 118; Miller v. Morgan, 11 Neb. 121. 
 
 6 Coburn v. Pickering, 3 N. H. 415; Trask i). Bowers, 4 N. H. 309 ; 
 Paul V. Crooker, 8 N. H. 288; French u. Hall, 9 N. H. 145; Clarke «. 
 Morse, 10 N. H. 236; Kendall v. Fitts, 22 N. H. 1, 7; Putnam u. Osgood, 
 32 N. H. 148; Clapp m. Rogers, 38 N. H. 435; Sumner «. Dalton, 38 K. H. 
 295; Stow V. Taft, 38 N. H. 445; Coolidge v. Melvin, 42 N. H. 510; Cut- 
 ting V. Jackson, 56 N. H. 252; Crawford v. Forristall, 57 N. H. 102; 58 
 N. H. 114 ; Plaisted v. Holmes, 58 N. H. 293. 
 
 ' Hall V. Snowhil), 14 N. J. L. 8; Miller v. Pancoast, 29 N. J. L. 250; 
 Eunyon v. Groshen, 12 N. J. Eq. 86; Parr v. Brady, 37 N. J. L. 201. Con- 
 tra, Cliumar v. Wood, 1 Halst. 155. 
 
 8 Hanford v. Artcher, 4 Hill, 271; Thompson v. Blanchard, 4 N. Y. 
 303; Ball v. Loomis, 29 N. Y. 412, 415; Mitchell v. West, 55 N. Y. 107; 
 May V. Walter, 56 N. Y. 8; Tllson u. Terwilliger, 56 N. Y. 273; Blant v. 
 Gabler, 77 N. Y. 461; Steele v. Benham, 84 N. Y. 634. 
 
 ' Eeas. Alexander, 5 Ired. 644; Boone v. Hardie, 83 N. C. 470. 
 
 M Rogers V. Dare, Wright, 136; Burbrldge v. Seeley, Wright, 359; 
 Barr v. Hatch, 3 Ohio, 327; Hornbeck v. Van Metre, 9 Ohio, 153; Collins 
 ». Meyers, 16 Ohio, 547, 652. 
 
 " Moore v. Floyd, 4 Oreg. 101; McCulIy v. Swackhamer, Oreg. 438. 
 
 12 Anthony J). Wheatous, 7 R. I. 490, 498; Sarle v. Arnold, 7 E. I. 582; 
 Meade o, Gardnier, 13 R. I. 257. 
 
 " Preguall «. Miller, 21 S. C. 385 (53 Am. Eep. 684). See Terry ». 
 Belcher, 1 Bail. (S. C.) 568; Smith v. Henry, 2 Bail. 118; Fulmore </. 
 Burrows, 2 Rich. Eq. 96 ; Garrett v. Ehame, 9 Eich. 407 ; Quiznard v. 
 
 Ill 
 
§ 84a THE TRANSFER OF TITLE. [CH. VII. 
 
 Tennessee,^ Texas,^ Virginia,^ Wisconsin.* On the other 
 hand, the older English doctrine, as laid down in Edwards 
 V. Harber,^ in very guarded terms, is adopted in many of 
 the States, without any material qualification, and the rule 
 established, that the retention of possession is conclusive 
 evidence of fraud on creditors and subsequent purchasers. 
 This rule has been adopted and followed in California,' 
 Colorado,^ Connecticut,* Delaware,* Florida,^" Illinois," 
 
 Aldrich, 10 Rich. Eq. 253 ; Jones v. Blake, 2 Hill. Ch. 636 ; Pringle v. 
 Phame, 10 Rich. 74. 
 
 1 Grubbs v. Greer, 5 Coldw. 160; Darwin v. Handley, 3 Yerg. 502; 
 Callen v. Thompson, 3 Yerg. 475; Young v. Pate, 4 Yerg. 164; Maney v. 
 Killough, 7 Yerg. 443; Gait v. Dibrell, 10 Yerg. 146; Tenn. Nat. Bank v. 
 Ebbert, 9 Heisk. 153; Carney v. Carney, 7 Baxt. 204; Wiley v. Lashlee, 8 
 Humph. 717. 
 
 2 Bryant v- Kelton, 1 Tex. 415, 431 ; Gibson v. Hill, 21 Tex. 225; Green 
 V. Banks, 24 Tex. 508 ; Thornton v. Tandy, 39 Tex. 544 ; Kerr v. Hutohins, 
 46 Tex. 384; Scott ». Alford, 53 Tex. 82,92; Edwards ». Dickson, 66 
 Tex. (1886) 2613 ; 2 S. W. Rep. 718. 
 
 » Davis V. Turner, 4 Gratt. 422 ; Forkner ». Stewart, 6 Gratt. 197; 
 Dance o. Seaman, 11 Gratt. 778; Lipe v. Earman, 26 Gratt. 563; Bait., 
 etc., R. R. Co. V. Glenn, 28 Md. 287, discussing Virginia law. 
 
 ^ Sterling o. Ripley, 3 Chand. (Wis.) 166; Whitney?). Brunette, 3 Wis. 
 621 ; Smith v. Welch, 10 Wis. 91 ; Grant v. Lewis, 14 Wis. 487 ; Bullls v. 
 Borden, 21 Wis. 135; Williams v. Porter, 41 Wis. 422. 
 
 2 T. R. 587. 
 
 6 Wood V. Bugby, 29 Cal. 466; O'Brien v. Chamberlain, 50 Cal. 285; 
 Watson V. Rodgers, 53 Cal. 401; Grum v. Bainey, 55 Cal. 254. 
 
 ' McCraw v. Welch, 2 Col. 284; Bassinger v. Spangler, 9 Col. 175. 
 
 8 Patten v. Smith, 5 Conu. 196; Swift v. Thompson, 9 Conn. 63, 69; 
 Osborne v. TuUer, 14 Conn. 529; Kirtland v. Snow, 20 Conn. 23; Lake v. 
 Morris, 30 Conn. 201 ; Norton v. Doolittle, 32 Conn. 411 ; Hall v. Gaylor, 
 37 Conn. 550; Halstat v. Blakeslee, 41 Conn. 3^1; Mead v. Noyes, 44 
 Conn. 487. 
 
 ' Perry v. Foster, 3 Harr. 293; Burman v. Herring, 4 Harring. 458 
 Taylor v. Richardsou, 4 Houst. 300. 
 
 ^1" Gibson v. Love, 4 Fla. 217, 238; Wilson v. Lott, 5 Fla. 305, 325 
 Smith V. Hines, 10 Fla. 285, 295. 
 
 " Thornton v. Davenport, 1 Scam. 296 ; McCann v. Meyer, 4 Bradw, 
 
 376; Davis v. Ransom, 18 111. 396; Thompson v. Yeck, 21 III. 73; Ket 
 
 chum V. Watson, 24 111. 591; Walker v. Collier, 37 111. 362; Young » 
 
 Bradley, 68 111. 553; BroadweU». Howard, 77 111. 305; Strauss v. Minze 
 
 112 
 
CH. VII ] THE TRANSFER OF TITLE. § 84(1 
 
 lowa,^ Kentucky,' Maryland,' Missouri,* Nevada,^ Penn- 
 sylvania,' Vermont.' The rule, that the vendor's retention 
 of possession operates as a fraud on the creditors and subse- 
 quent purchasers, has been held not to apply to judicial 
 and other forced sales; if for no other reason, because the 
 publicity of the sale gives sufficient notoriety to prevent 
 
 shetmer, 78 111. 492; Thompson o. Wilhite, 81 111. 456; Lefever v. Mires, 
 81111. 466; Ticknor v. McClelland, 84 111. 471; Aliens. Carr, 86 111. 388; 
 Rogier v. Williams, 92 111. 187; Dunning v. Mead, 90 111. 376. 
 
 1 Prattler v. Parker, 24 Iowa, 26; Hesser u. Wilson, 36 Iowa, 152; 
 Boothby V. Brown, 40 Iowa, 104: Sutton v. Barlow, 46 Iowa, 577; McKay 
 V. Clapp, 47 Iowa, 318; Smith v. Champney, 50 Iowa, 174;^Hickok v. 
 Buell, 51 Iowa, 655. 
 
 2 Eobbins v. Oldham, 1 Duv. 28; Hundley v. Webb, 3 J. J. Marsh. 643; 
 Allen V. Johnson, 4 J. J. Marsh. 235; Brummel v. Stockton, 3 Dana, 135; 
 Anthony v. Wade, 1 Bush, 110; Morton v. Eagan, 5 Bush, 334; Wood- 
 row V. Davis, 2 B. Mon. 298; Kendall o. Hughes, 7 B. Mon. 368. But 
 see Daniel v. Morrison, 6 Dana, 185; Enders v. Williams, 1 Met. (Ky.) 
 252; Cummings v. Griggs, 2 Duv. 87; Vanmeter v. Kstill, 78 Ky. 456. 
 
 3 Gough V. Edelen, 5 Gill, 101; Green v. Treiber, 3 Md. 28; Bruce v. 
 Smith, 3 H. & J. 499. 
 
 * Claflin V. Rosenberg, 42 Mo. 439; 43 Mo. 593; Lesem ». Nerriford, 
 44 Mo. 23 ; Bishop v. O'Connell, 56 Mo. 158 ; Bnrgert v. Borchart, 59 Mo. 
 80; Wrights. Cormick, 67 Mo. 426; Stern u. Henley, 68 Mo. 262; Cator 
 •0. Collins, 2 Mo. App. 225; Basse v. Thomas, 3 Mo. App. 472; Franklin 
 V. Gummersell, 11 Mo. App. 306, 311; Allen v. Massey, 17 Wall. 351. 
 
 * Carpenter v. Clark, 2 Nev. 243; Lawrence v. Bumham, 4 Nev. 361; 
 Gray v. Sullivan, 10 Nev. 416. 
 
 " Dames v. Cope, 4 Binn. 258; Clow v. Woods, 5 S. & E. 275; Babb v. 
 Clemson, 10 S. & R. 428; Shaw v. Levy, 17 S. & R. 99; McKibben v. Mar- 
 tin, 64 Pa. St. 352 ; Bentz v. Rockey, 69 Pa. St. 71 ; Miller v. Garman, 69 
 Pa. St. 134; Garman v. Cooper, 72 Pa. St. 32; Wormanc. Kramer, 73 Pa. 
 St. 378; Bond v. Bronson, 80 Pa. St. 360; Maynes v. Atwater, 88 Pa. St. 
 496; Bismarck Bldg Assn. v. Bolster, 92 Pa. St. 123; Parks v. Smith, 94 
 Pa. St. 46; Pearson v. Carter, 94 Pd, St. 275; Barr^. Boyle, 96 Pa. St. 31; 
 Dougherty v. Haggerty, 96 Pa. St. 515; Crawford v. Davis, 99 Pa. St. 576. 
 
 ' Weeks ■». Wood, 2 Aik. 64; Boardman v. Keeler, 1 Aik. 158; Motto. 
 McNiell, 1 Aik. 162; Wilson v. Hooper, 12 Vt 653; Eockwood ». CoUa- 
 mer, 14 Vt. 141; Mills v. Warner, 19 Vt. 609; Stephenson u. Clark, 20 Vt. 
 624; Parker v. Hendrick, 29 Vt. 388; Houston u. Howard, 39 Vt. 54; 
 Daniels D.Nelson, 41 Vt. 161; Pettingill v. Elkins, 50 Vt. 431; Weeks v. 
 Prescott, 53 Vt. 57 ; Hildreth o. Fitts, 53 Vt. 684 ; Rothschild v. Rowe, 
 44 Vt. 389. 
 
 8 113 
 
§ 84a THE TRANSFER OP TITLE. [CH. VII. 
 
 any presumption of fraud.* It is also unnecessary, as 
 against creditors, to deliver the possession of goods, in order 
 to transfer the title, where the goods are exempt from at- 
 tachment and execution. It is held that there is no fraud 
 on creditors to retain the possession of such goods, because 
 the creditors cannot levy on them and therefore have no 
 interest in them.^ 
 
 In the States, in which the retention of possession is 
 held to be prima facie evidence of fraud, the authorities 
 are divided on the question, whether the good or bad faith 
 of the buyer as against the vendor's creditors or subsequent 
 purchasers, is a question of law for the court, or of fact 
 for the jury. Some of the courts hold it to be a question 
 of law for the court,^ whereas others maintain that it is a 
 question of fact for the jury.* Probably the best rule is, 
 
 1 Latimer v. Batson, 4 Barn. & C. 652; Leonard v. Baker, 1 Maule & S. 
 261 ; Watkins v. Birch, 4 Taunt. 328 ; Jezeph o. Ingram, 8 Taunt. 838 , 
 Hanford v. Obreclit, 49 111. 146; Lothrop v. Wightman, 5 Wright, 297; 
 Myers v. Harvey, 2 Pa. St. 478; Walter v. Gement, 13 Pa. St. 515; Craig's 
 Appeal, 77 Pa. St. 448; Maynes v. Atwater, 88 Pa. St. 496; Smith v. Cris- 
 man, 91 Pa. St. 428 ; Bisbing v. Third Nat. Bank, 93 Pa. St. 79. But see, 
 contra, Ponde v. Gross, 15 Wend. 628; Gardenier c. Tubbs, 21 Wend. 169; 
 Stinson D.Wrighley, 86 N. Y. 332. See, also, Wordall v. Smith, 1 Camp. 
 332; Ranney v. Moody, 6 Up. Can. Com. PI. 471. 
 
 "■ Potter V. Smith, 4 Conn. 455; Foster v. McGregor, 11 Vt. 595. But 
 see, contra, Barton v. Brown, 68 Cal. 11, on the ground that the right of 
 exemption is a personal privilege, which is waived if it is not claimed by 
 the debtor. 
 
 8 See Griswold o. Shelden, 4 N. Y. 501; Edgell v. Hart, 9 N. Y. 2, 6; 
 Eussell V. Winne, 67 N. Y. 591; Tennessee Bank v. Ebbert, 9 Heisk. 153; 
 Collins V. Meyers, 16 Ohio St. 547; Coburn v. Pickering, 3 N. H. 415; 
 Trash v. Bowers, 4 N. H. 309; Sumner o. Dalton, 38 N. H. 295; Stow v. 
 Taft, 38 N. H. 445; Cooledge v. Melvin, 42 N. H. 510; Lang ». StockweU, 
 66 N. H; 561; Cutting v. Jackson, 66 N. H. 253; Crawford v. Fonistall, 
 57 N. H. 102, Plaisted v. Holmes, 68 N. H. 293. 
 
 * Scott V. Alford, 53 Tex. 82; Gay v. Bidwell, 7 Mich. 619; Brett v. 
 Carter, 2 Low. C. C. 458; Peck v. Land, 2 Kelly, 1 ; Fleming v. Townsend, 
 6 Ga. 103, 104; Rose v. Colter, 76 Ind. 590; Mohter v. Robinson, 40 Mich. 
 200; Blackman v. Wheaton, 13 Minn. 326; Robinson v. Uhl, 6 Neb. 333; 
 Densmore v. Tomer, 11 Neb. 118 ; Hanford v. Artcher, 4 Hill, 271 ; Mitchell 
 114 
 
CH. VII. J THE TRANSFER OF TITLE. § 84a 
 
 that it is a mixed question of law and fact ; a question of 
 law as to the existence or absence of a presumption of 
 fraud, and a question of fact, as to whether the evidence 
 in favor of good faith establishes a rebuttal of the presump- 
 tion of fraud. ^ 
 
 In the States, in which the presumption of fraud is con- 
 clusive, it is generally held to be a question of fact for the 
 jury whether there has been a sufficient delivery.^ 
 
 What constitutes a sufficient delivery to be good against 
 creditors and subsequent purchasers, is discussed in a sub- 
 sequent chapter.^ 
 
 Mere delay in the delivery of the possession is ordinarily 
 not considered fraudulent as to creditors, as long as de- 
 livery is actually made before attachment. Until attach- 
 ment, the debtor has done nothing to the injury of the 
 creditor, on which to claim an avoidance of the sale.* 
 
 V. West, 55 N. Y. 107; May v. Walter, 56 N. Y. 8; Blant v. Gabler, 77 N. 
 Y. 461 ; Eea v. Alexander, 5 Ind. 644; Boone v. Hardie, 83 N. C. 470. 
 
 1 See the New York cases. See, also, Brooks v. Powers, 15 Mass. 244; 
 Bartlett v. Williams, 1 Pick. 288; Shumway v. Ritter, 8 Pick. 443; Shurt- 
 lefE V. Willard, 19 Pick. 202; Hardy v. Potter, 10 Gray, 89; Ingalls v. 
 Herrick, 108 Mass. 351. 
 
 2 Weber v. Armstrong, 70 Mo. 217; Hewson t. Tootle, 72 Mo. 632; 
 Hughes V. Cory, 20 Iowa, 399; Lake o. Morris, 30 Conn. 201; Webster v. 
 Peck, 31 Conn. 495; Clow «. Woods, 5 S. & R. 275; Evans v. Scott, 89 Pa. 
 St. 136; Rothschild v. Rowe, 44 Vt. 389; Hesthal v. Myles, 53 Cal. 623. 
 But the court may refuse to give the question to the jury, where there is 
 no evidence of a change of possession. Rothschild v. Rowe, 44 Vt. 389. 
 
 = See post, § 106. 
 
 ^ Gilbert v. Decker, 53 Conn. 401; Calkins v. Lockwood, 16 Conn. 
 276; Hall v. Gaylor, 37 Conn. 550; Bartlett v. Williams, 1 Pick. 288; 
 Shumway ». Rutter, 8 Pick. 447; Blake v. Graves, 18 Iowa, 312; Clute v. 
 Steele, 6 Nev. 335; Ktndall v. Simpson, 12 Vt. 515; Coty a. Barnes, 
 Cruikshanks v. Coggswell, 26 111. 366; Frank v. Miner, 50 111. 455; Berry 
 V. Ensell, 2 Gratt. 333 ; Snyder v. Gee, 4 Leigh, 535 ; Wilson v. Leslie, 20 
 Ohio, 389; Brown v. Webb, 20 Ohio, 389. In New York the statute calls 
 for an immediate delivery, and so likewise in Minnesota, Nebraska, and 
 Wisconsin. 
 
 In Missouri, the delivery must be made within a reasonable time after 
 
 115 
 
§ 85 THE TRANSFER OF TITLE. [CH. VII. 
 
 § 85. Delivery without transfer of title — Keservatioh 
 of jus disponendi — Prepayment Of price. — Ordinarily, 
 the delivery does operate as a transfer of the title from the 
 vendor to the vendee ; for it is presumed that the parties 
 intended by a transfer of possession to transfer the title 
 also. But this presumption is not conclusive ; and is always 
 rebutted by evidence of an express intention to the con- 
 trary. The common cases are those in which the vendor 
 reserves to himself the title, although the possession is 
 delivered to the vendee, until the price is paid. And these 
 cases may be divided into two classes, those in which the 
 delivery is to the vendee himself, and those in which the 
 delivery is to a common carrier. 
 
 Where the sale is a cash transaction, the parties are pre- 
 sumed to require prepayment of the price before there is to 
 be auy transfer of title or possession. If the goods are 
 delivered to the vendee, in the absence of an express agree- 
 ment to the contrary, the prepayment of price is presumed 
 to have been waived, and the vendee acquires title on deliv- 
 ery.^ But if the parties have expressly agreed, on delivery 
 of the goods to the vendee, that the title shall not pass 
 until payment of the price, the delivery will not affect the 
 title in the vendor. The vendor still retains the title until 
 payment of the price ; ^ and if the price be not paid in 
 
 the sale. Claflin v. Rosenberg, 42 Mo. 439 ; 43 Mo. 539 ; Bishop v. O'Con- 
 iiell, 56 Mo. 158; Burgert v. Borchert, 69 Mo. 80; Wright v. McCormick, 
 67 Mo. 626. 
 
 1 Carlton v. Sumner, 4 Pick. 516; Smith v. Dennle, 6 Pick. 262; Far- 
 low V. Ellis, 15 Gray, 229; Hammett v. Llnneman, 48 N. Y. 399; Bowen 
 V. Buck, 13 Pa. St. 146; Upton i;. Sturbridge Cotton Mills, 111 Mass. 446; 
 Goodwin v. Boston, &c., R. R. Co., Ill Mass. 487; Scudder v. Bradbury, 
 106 Mass. 422; Freeman v. Nichols, 116 Mass. 309; Haskins v. Warren, 
 116 Mass. 514; Mixey v. Cook, 31 Me. 340. 
 
 2 Coggil V. Hartford, &c., R. R. Co., 3 Gray, 545; Sargent v. Metcalf, 
 5 Gray, 306; Blanchard v. Child, 7 Gray, 155; Burbank v. Crooker, 7 
 Gray, 158; Deshou v. Blgelow, 8 Gray, 159; Hirschorn v. Canney, 98 
 Mass. 150; Zuchtmann b. Roberts, 109 Mass. 53; Beuner v. Puffer, 114 
 Mass. 378; Armour j). Pecker, 123 Mass. 145; Chase ». Pike, 125 Mass. 
 
 116 
 
CH. VII ] THE TRANSFER OP TITLE. § 85 
 
 accordance with the terms of the contract, at the time agreed 
 upon, or within a reasonable time, if no time is stipulated, 
 the vendor can recover possession of the goods. ^ 
 
 The other cases of delivery without transfer of title, are 
 where the goods are delivered to a common carrier for trans- 
 portation to the vendee. The general rule is that where 
 the goods have been delivered, with the express or implied 
 consent of the vendee, to a common carrier for transporta- 
 tion to the purchaser, the delivery to the common carrier 
 passes the title, so that the risk of loss in the course of 
 transit falls on the vendee.^ But this is not the case where 
 
 117; Wabash Elevator Co. v. First Nat. Bank, 23 Ohio St. 311; Behren 
 V. O'Donnell, 34 N. J. L. 408; Turner v. Moore, 3 Atl. Rep. (Vt.) 
 467; Bush v. Bender, 113 Pa. St. 94; 4 Atl. Rep. 213; Bishop v. Shilito, 
 2 Barn. & Aid. 329 n; Godts v. Rose, 17 C. B. 229; Brandt v. Bowlby, 2 B. 
 & Adol. 932; Porter v. Pettingill, 12 N. H. 299; Paul v. Heed, 52 N. H. 
 136; Forbes v. Marsh, 15 Conn. 384; Henderson v. Lanck, 21 Pa. St. 350; 
 Litteli;. Page, 44 Mo. 412; Ridgeway v. Kennedy, 52 Mo. 24; Fifleld v. 
 Elraes, 25 Mich. 48; Cobb «. Tufts, 2 Tex. App. (Civ. Cas.), § 152; Clark 
 V. Wells, 45 Vt. 4 (12 Am, Rep. 187); Duncans v. Stone, 46 Vt. 118; 
 Tyler ». Freeman, 3 Cush. 261; Whitney?). Eaton, 15 Gray, 225; Morris 
 V. Kexford, 18 N. Y. 552; Hasbrouoh v. Lounsbury, 26 N. Y. 598; Thomp- 
 son!). Ray, 46 Ala. 224; Shireman v. Jackson, 14 Ind. 459. 
 
 J Ayerj). Bartlett, 9 Pick. 156; Reed v. Upton, 10 Pick. 522; Barrett t). 
 Prichard, 2 Pick. 512; Whitwell v. Vincent, 4 Pick. 449; Booraem v. 
 Crane, 103 Mass. 522. See post, § 206, Chapter on Conditional Sales. 
 
 2 Burton v. Baird, 44 Ark. 556; State v. Carl, 43 Ark. 353; Magruder 
 ■u. Gage, 33 Md. 344 (3 Am. Rep. 177) ; Rauney v. Higby, 5 Wis. 62; Wil- 
 cox Silver Plate Co. v. Green, 72 N. Y. 17; Hall v. Gaylor, 37 Conn. 550; 
 Perkins «. Eckert, 55 Cal. 400; Cross v. O'Donnell, 44 N. Y. 661 ; Waite 
 I). Baker, 2 Ex. 1; Dawes v. Peck, 8 T. R. 330; Dutton v. Solomons, 3 B. 
 & P. 582; London & Northwestern Ry. Co. u. Bartlett, 7 H. & N. 400; 31 
 L. J. Ex. 92; Dunlop v. Lambert, 6 CI. & Fin. 600; Cork Distilleries Co. 
 V. Great Southern R. R. Co., L. R. 7 H. L. 269; Bradford v. Marbury, 12 
 Ala. 520 (46 Am. Dec. 264) ; Hobart v. Littlefleld, 13 R. I. 341, 342; Lud- 
 low ». Bowne, 1 Johns. 115; Garlands. Lane, 46 N. H. 248; Hunter v. 
 Wright, 12 Allen, 548 ; Sarbecker v. State, 65 Wis. 171 (56 Am. Rep. 624) ; 
 Ranney v. Higby, 4 Wis. 154; Somers v. McLaughlin, 57 Wis. 364; Jan- 
 ney v. Sleeper, 30 Minn. 473; Garbracht ». Com. 96 Pa. St. 449 (42 Am. 
 Rep. 550); Finch «. Mansfield, 97 Mass. 89; Abbergerw. Marin, 102 Mass. 
 70; Brockway v. Maloney, 102 Mass. 308; Dolan v. Green, 110 Mass. 822; 
 Franks. Hoey, 128 Mass. 263; Tegler v. Shipman, 33 Iowa, 194 (11 Am. 
 
 117 
 
§ 85 THE TRANSFER OF TITLE. [CH. VII. 
 
 in the delivery of the goods to the common carrier the vend- 
 or receives a bill of lading, in which the common carrier 
 obligates himself to deliver the goods to the order of the 
 consignor. The execution and receipt of such a bill of 
 lading arc taken as presumptive evidence of an intention 
 to reserve the title from the vendee, or consignee, and a 
 retention of the jus disponendi in the consignor. It is not 
 simply a vendor's lien, which is reserved in such a case, 
 but the absolute right of property in the goods, which en- 
 ables the vendor freely to dispose of the goods to others. ^ 
 The bill of lading, in all such cases, is taken as the symbol 
 of the property, so that a transfer of the bill of lading 
 operates as the transfer of the goods themselves.^ And 
 the obligation of the common carrier is to deliver the goods 
 to the assignee of the bill of lading.^ 
 
 The title to the goods may be reserved to the consignor, 
 in such a case, even though the goods have been delivered 
 to the buyer's ship. In such cases, the presumption is 
 that the title passes to the purchaser on delivery to the 
 
 Kep. 118); Shuenfeldt J). Junkerman, 20 Fed. Rep. 357; Hill t>. Spear, 50 
 N. H. 253 (9 Am. Rep. 205); Boothby v. Plaisted, 51 N. H. 436 (12 Am. 
 Rep. 140) ; State v. O'Neill, 58 Vt. 140 (56 Am. Rep. 557). 
 
 1 Wilmshurst ». Bowker, 2 M. & 6. 792; Ellerehaw v. Magniac, 6 Ex. 
 570; Van Casteel w. Booker, 2 Ex. 691 ; Shepherd v. Harrison, L. R. 4 Q. 
 B. 196; Ex. Ch. 493; L. R. 5 H. L. 116; Ogg v. Shuter, 1 C. P. D. 47, C. 
 A.; Ex parte Bauner, 2 Ch. D. 78 C. A.; Waite v. Baker, 2 Ex. 1; 
 Jenkyns v. Brown, 14 Q. B. 496; 19 L. J. Q. B. 286; Gabarron v. 
 Kreeft, L. R. 10 Ex. 274; St, Joze Indiano, 1 Wheat. 208; Dows v. Nat. 
 Exch. Bank, 91 U. S. 618; Hobart v. Littlefield, 13 R. I. 341; Emery ». 
 Irving Nat. Bank, 25 Ohio St. 360; Merchants' Nat. Bank v. Bangs, 102 
 Mass. 291 ; Farmers', &c , Bank v. Logan, 74 N. Y. 568; First Nat. Bank 
 V. Crocker, 111 Mass. 163, 167; Reynolds v. Scott, Cal., 4 Pac. Rep. 
 346; Mason v. Greatwestern Ry. Co., 31 Up. Can. Q. B. 73. 
 
 ' Bank of Rochester «. Jones, 4 Comst. 497; Marine Bank v. Wright, 
 ^8 N. Y. 1 ; Mich. Cent. R. R. Co. v. Phillips, 60 HI. 190; First Nat. Bank 
 V. Crockery, 111 Mass. 163; First Nat. Bank v. Bayley, 115 Mass. 230; 
 First Nat. Bank, v. Dearborn, 115 Mass. 219; Schumacher ». Eby, 24 
 Pa. St. 521. 
 
 ' See cases cited in last two notes. 
 118 
 
CH. VII. J THE TKANSFER Or TITLE. § 85 
 
 master of his ship.^ But the vendor may by special terms 
 reserve to himself the jus disponendi, even where the bill 
 of lading shows that the goods are to be free of freight, 
 because they are the property of the shipowner.^ 
 
 It is quite common for the bill of lading to be attached 
 to, and to pass with the transfer of, a bill of exchange 
 drawn by the vendor on the vendee, which is negotiated, 
 and upon payment or acceptance of the bill of exchange, 
 the bill of lading is to be delivered to the vendee. Where 
 the bill of exchange is payable on demand or at sight, the 
 holder of the bill of lading cannot deliver it to the vendee, 
 until the bill of exchange is both accepted and paid, 
 provided that the consignor would have had the right to 
 withhold the bill of lading until the purchase money has 
 been paid.^ But where the bill of exchange is payable in 
 the future, in the absence of a special agreement, the bill 
 of lading is to be delivered to the vendee upon his accept- 
 ance of the bill of exchange according to its tenor ; and the 
 holder cannot insist upon holding it until the bill of ex- 
 change is paid. The drawee of the bill of exchange may 
 refuse to accept, unless the bill of lading is surrendered to 
 him.* • 
 
 ^ Mirabita v. Imperial Ottoman Bank, L. B. 3 Ex. D. 164, 172. 
 
 2 Turner v. Liverpool Dock Trustees, 6 Ex. 543; Brandt v. Bowlby, 2 
 B. & Ad. 932; Moakes v. Nicholson, 19 C. B. N. S. 290; 34 L. J. C. P. 
 273; Fluke v. Fletcher, IS C. B. N. S. 403; 34 L. J. C. P. 146; Gamm o. 
 Lyrie, 33 L. J. Q. B. 97; 6 B. & S. 298; 34 L. J. Q. B. 124; EUenhan u. 
 Magniac, 6 Ex. 570; Van Casteel v. Booker, 2 Ex. 691; Schotsman v. 
 Lancashire, &c., Ey. Co., 2 Ch. 332. 
 
 ^ Heiskell v. Farmers', &c., Bank, 89 Pa, St. 225; First Nat. Bank ». 
 Bayley, 115 Mass. 228; Emery v. Irving Nat. Bank, 26 Ohio St. 255; 
 National Bank v. Merchants' Bank, 100 Mass. 104; Dows o. Nat. Exch. 
 Bank, 91 U. S. 618; Marine Bank u. Wright, 48 N. Y. 1. 
 
 < Lanfear v. Blossom, 1 La. Ann. 148 ; Marine Bank v. Wright, 48 N. 
 T. 1. In National Bank v. Merchant's Bank, 91 U. S., Strong, J., said: 
 " It seems to be a natural inference, indeed a necessary implication, 
 from a time draft accompanied by a bill of lading indorsed in blank, 
 that the merchandise (which in this rase was cotton), specified in the 
 
 119 
 
§ 85 THE TRANSFER OF TITLE. [CH. VII. 
 
 If the bill of lading, attached to a bill of exchange, is 
 sent direct to the vendee, the delivery of the bill is 
 nevertheless conditional and the vendee cannot retain the 
 bill of lading, without honoring the draft. He does not 
 acquire title to the goods, until he has honored the bill 
 of exchange.^ In all such cases, if the vendee is by the 
 terms of the bill of lading the consignee, he takes the 
 goods into his possession, subject to the right of the holder 
 of the bill of exchange to demand payment. The con- 
 signee must honor the bill of exchange or surrender the 
 goods. ^ If the carrier delivers the goods to the vendee in 
 contradiction of the terms of the bill of lading, i. e., 
 where the bill of lading provides for the delivery of the 
 
 bill was sold on credit, to be paid for by the' accepted draft, or that the 
 draft is a demand for an advance on the shipment, or that the transac- 
 tion is a consignment to be sold by the drawee on account of the ship- 
 per. It is difficult to conceive of any other meaning the instrument can 
 tave. If so, in the absence of any express agreement to the contrary, 
 the acceptor, if a purchaser, is clearly entitled to the possession of the 
 goods on his accepting the bill, and thus giving the vendor a completed 
 contract for payment. * * * jf ^he inference to be drawn from a 
 time draft accompanied by a bill of lading is, not that it evidences a 
 credit sale, but a request for advances on the credit of the consignment, 
 the consequence is the same. Perhaps it is even more apparent. It 
 plainly is tliat the acceptance is not asked on the credit of the drawer 
 of the draft, but on the faith of the consignment. ♦ * * Nor can it 
 make any difference that the draft with the bill of lading has been sent 
 (as in this case) ' for collection.' That instruction means simply to re- 
 but the inference from the indorsement that the agent is the owner of 
 the draft. It indicates an agency." 
 
 J Shepherd ij. Harrison, L. R. 4 Q. B. 197; 5 H. L. 116; Indiana, &c., 
 Bank v. Colgate, 4 Daly, 41 ; Marine Bank v. Wright, 48 N. Y. 1 ; Ogg v. 
 Shuter, 1 C. P. D. 47, C. A. 
 
 2 Emery «. Irving Nat. Bank, 25 Ohio St. 255; Dows v. Nat. Exch. 
 Bank, 91 U. S. 631; National Bank i). Merchants' Bank, 91 U. S. 98; 
 Heiskell v. Farmers', &c.. Bank, 89 Pa. St. 155. The consignee could 
 not in that case retain the purchase money in liquidation of a debt due 
 to him by the consignor. Emery v. Irving Nat. Bank, 25 Ohio St. 255. 
 See Jenkins v. Brown, 15 Q. B. 496; Schorman v. R. R. Co., L. R. 2 Ch. 
 App. 336; Turners. Trustees Liverpool Docks, 6 Exch. 543; Ellerslaw 
 V. Magniac, 6 Exch. 670. 
 120 
 
CH. VII.] THE TRANSFER OF TITLE. § 86 
 
 goods only on payment of the bill of exchange, neither the 
 vendee nor any innocent purchaser from him will acquire 
 title to the &ame ; a:nd the consignee of the bill of lading 
 with draft attached may recover the goods from any one 
 who has possession of them.^ 
 
 But, although the vendor may intend to retain control of 
 the goods, until Ihe bill of exchange for the purchase 
 money is paid by the purchaser, if he sends him an indorsed 
 bill of lading through the mail, without attaching it to the 
 bill of exchange, the title passes to the vendee uncondi- 
 tionally, and the vendor cannot recover the goods, if the 
 vendee should refuse to honor the bill of exchange.^ 
 Whenever goods are delivered, with the reservation of the 
 title until some condition, as the payment of the price, is 
 performed, the relation of the parties becomes somewhat 
 peculiar. The seller retains his right to sell, and his cred- 
 itors their right to attach, the property, subject to the 
 buyer's right to acquire the absolute title by the perform- 
 ance of the condition ; ^ while the buyer acquires by the 
 delivery of the goods to him, such a conditional right of 
 property, as he may transfer it to another, the sub-vendee, 
 acquiring the absolute right of property by the performance 
 of the condition.* 
 
 § 86. Sale of specific goods unconditionally. — If one 
 
 contracts to sell specific goods, without any condition what- 
 ever, the presumption is that the title to the goods passes 
 
 ^ Helsfeell V. Farmers', &c., Bank, 89 Fa. St. 155. See also Dows v. 
 Nat. Exch. Rank, 91 U. S. 631; Brandt v. Bowlby, 2 B. & Ad. 932; Sey- 
 mour V. Norton, 105 U. S. 272; Stottenwerck v. Thacher, 115 Mass. 224; 
 Alderman i>. Eastern R. R. Co., 611 Mass. 233. 
 
 2 Ex parte Banner, 2 Ch. D. 78 C. A. 
 
 s Burnell v. Marvin, 44 Vt. 277; McMillen v. Lamed, 41 Mich. 521; 
 Everett o. Hall, 67 Me. 497; Hubbard v. Bliss, 12 Allen, 590. 
 
 ■* Day V. Bassett, 102 Mass. 445; Crorapton v. Pratt, 105 Mass. 255; 
 Currier B. Knapp, 117 Mass. 324; Chase v. Ingalls, 122 Mass. 381; Car- 
 penter V. Scott, 13 R. I. 477. 
 
 121 
 
§ 86 THE TRANSFER OF TITLE. [CH. VII. 
 
 immediately, and without any further act of the parties. 
 This is universally true, where the price has been paid, or 
 the goods have been expressly sold on credit. But if the 
 contract is a cash transaction, prepayment of the price is a 
 condition precedent, according to all the authorities, to the 
 transfer of possession, and, according to the weight of 
 American authority, to the transfer of title also. This is 
 the case, whether the prepayment of the price is express, ^ 
 or implied.^ But in England, according to the later author- 
 ities, the title to a specific article is held to pass on the 
 completion of the contract, without prepayment of price, 
 notwithstanding it is a cash transaction, and the vendor has 
 the right to withhold the possession, until the price is paid.^ 
 It is difficult to see how it can be presumed that the parties 
 intended to pass title immediately on the making of the 
 contract, when the vendor may and does require prepay- 
 ment of the price before delivering the goods. It would 
 seem to be more reasonable to hold that the vendor intended 
 to keep the goods as his own, until he received the price. 
 The intention to pass title, and yet to retain possession of 
 the goods, until the price is paid, is too refined an idea to 
 make it likely, in the absence of an express agreement, that 
 the average tradesman contemplated the transaction to have 
 
 1 Barrett i>. Pritchard, 2 Pick. 512; Ayer ». Bartlett, 9 Pick. 156; Reed 
 V. Upton, 10 Pick. 522; Booraem v. Crane, 103 Mass. 522. 
 
 ' rishbackc. Van Dusen, 33 Minn. Ill; 33 Am. Law Reg. 506, note. 
 
 3 Simmons v. Swift, 5 3. & C. 862, Bayley, J. : " Generally, where a 
 bargain is made for the purchase of goods, and nothing is said about 
 payment or delivery, the property passes immediately so as to cast upon 
 the purchaser all future risk, if nothing remains to be done to the goods, 
 although he cannot take away without paying the price." See, also, 
 Dixon «. Yates, 5 A. &E. 313; Hinder. Whitehouse, 7 East, 558; Mar- 
 tindale v. Smith, 1 Q. B. 389; Gilmour v. Supple, 11 Mo. P. C. 551 ; Wood 
 i;. Bell, 6 E. & B. 355; 25 L. J. Q. B. 148; Ex. Ch. 321; Farley v. Bates, 2 
 H. & C. 200; 33 L. J. Ex. 43; Tarling v. Baxter, 6 C. & C. 300; Spartali v. 
 Bentecke, 10 C. B. 212; Calcutta Company v. De Mattos, 32 L. J. Q. B. 
 322; Chambers v. Miller, 10 C. B. (N. s.) 125; 32 L. J. C. P. 30; Joyce v. 
 Swan, 17 C. B. (n. s.) 84. 
 122 
 
CU. VII. ] THE TRANSFER OF TITLE. § 87 
 
 that effect. But, generally, the requirement of prepay- 
 ment of the price is implied from the fact that there is no 
 stated time of payment, only as long as the vendor does 
 not part with the possession of the goods. If he delivers 
 the goods to the vendee, he is presumed, in the absence of 
 ail express reservation, to have waived the condition of pre- 
 payment.^ 
 
 § 87. Sale of specific chattels conditionally. — If the 
 
 sale of specific chattt-ls is subjected to any condition pre- 
 cedent, the title does not pass until the condition is per- 
 formed. And the title will revert upon the breach of a 
 condition subsequent. The general subject of conditions 
 is treated elsewhere.^ Eeference is here had only to those 
 conditional sales, in which the vendor has something to do 
 with or concerning the goods, before they are ready for de- 
 livery. The general rule is, that whon the vendor has to 
 prepare the goods for delivery, the title does not pass to 
 the vendee, until they are so prepared for delivery. The 
 title does not pass before they are manufactured or as long 
 as the goods are in an incomplete condition.' 
 
 1 Smith V. Dennie, 6 Pick. 262; Carlton v. Sumner, 16 Gray, 229; Ham- 
 mett «. Lineman, 48 N. Y. 399; Mixer v. Cook, 31 tie. 340; Farlow «. 
 Ellis, 15 Gray, 229; Scudder C.Bradbury, 106 Mass. 422; Goodwin v. 
 Boston, etc., E. R. Co., Ill Mass. 487; Haskins v. Warren, 115 Mass. 
 314; Freeman «. Nichols, 116 Mass. 309. 
 
 2 See post, Chapter XV. 
 
 3 Foster v. Hopes, 111 Mass 10 (fish to dry) ; Hale v. Huntley, 21 Vt. 
 147 (bricks to be burned); Gibbs v. Benjamin, 45 Vt. 124; Fuller v. Bean, 
 34 N. H. 290; Gilbert o. N. T. Cent. R. R. Co., 4 Hun, 378 (goods to be de- 
 livered) ; Smith v. Sparkmau, 55 Miss. 649 (cotton to be ginned or baled) ; 
 Pritchett v. Jones, 4 Rawle, 260 (do.) ; Screws v. Roach, 22 Ala. 675 (do.) ; 
 Comfort V. Kiersted, 26 Barb. 472 (shingles to be manufactured) ; Hyde 
 V. Lathrop, 2 Abb. App. Cas. 436; Thompson v. Conover, 32 N. J. L. 466; 
 Dunning v. Gordon, 4 Up. Can. Q. B. 399 ; Anderson ». Morice, 1 App. 
 Cas. 713; Exch. L. R. 10 C. P. 609 (rice to be loaded in ship); Higgins 
 V. Cheesman, 9 Pick. 10 (bill of sale to be made out and delivered to the 
 vendee) ; Acraman v. Monis, 8 C. B. 449 (trees to be trimmed) ; Langton 
 V. Higgins, 28 L. J. Ex. 252; 4 H. & N. 402; Rugg o. Minett, 11 East, 210. 
 
 123 
 
§ 87 THE TRANSFER OF TITLE. [CH. VII. 
 
 It is also held that if the goods are to be inspected, meas- 
 ured, weighed or counted before delivery in order to ascer- 
 tain the price, the title to the goods does not ordinarily 
 pass until they have been measured, weighed or counted.^ 
 
 But where the parties have intended that the title shall 
 pass immediately, and before the completion of the prepa- 
 rations for delivery and the intention is duly manifested in 
 the terms of the contract, the title will pass notwithstand- 
 ing some thing is still to be done by the vendor, before the 
 goods are ready for delivery. ^ And it has been held in 
 England that, in the case of the manufacture of ships, the 
 agreement to pay installments of the price at successive 
 stages in the course of their building is evidence of an in- 
 tention to pass the title to the ship before its completion.^ 
 
 1 Elgee Cotton Cases, 22 Wall. 180; Kobertson v. Strickland, 28 Up. 
 Can. Q. B. 221 ; O'Neil v. Mcllmoyle, 34 Up. Can Q. B. 236 ; Nicholson v. 
 Taylor, 31 Pa. St. 128; Frost v. Woodruff, 64 111. 166; Pike v. Vaughn, 
 39 Wis. 499; Kein v. Tupper, 62 N. Y. 550; Devane v. Fennell, 2 Ired. 
 37; AUman v. Davis, 2 Ired. 12; Davis ». Hill, 3 N. H. 382; Oilman v. 
 Hill, 36 N. H. 3U ; Abat v. Atkinson, 21 La. An. 414; Nesbit v. Burry, 25 
 Pa. St. 209; Joyce v. Adams 8 N. Y. 291; Strauss v. Ross, 25 Ind. 300; 
 Lester «. East, 49 Ind. 588; McDonald v. Hewett, 16 Johns. 349; Rapelye 
 V. Mackie, 6 Cow. 250; Cutwater v. Dodge, 7 Cow. 85; McClung v. Kelly, 
 21 Iowa, 508; Jennings v. Flanagan, 5 Dana, 217; Sherwin v. Mudge, 
 127 Mass. 547 ; McDonough v. Sutton, 35 Mich. 1 ; Hanson v. Meyer, 6 
 East, 614; Zagory v. Farrell, 2 Camp. 240; Summons v. Swift, 6 B. & C. 
 867; Logan ». LeMesurier, Moo. P. C. 116; Gilmour v. Supple, 11 Moo. 
 P. C. 551; Tansley ». Turner, 2 Scott, 238; Coopers. Bill, 34 L. J. Ex. 
 161; 3 H. & C. 722; Wallace v. Breeds, 13 East, 622; Bush i). Davis, 2 
 M. & S. 397; Austen v. Craven, 4 Taunt. 644; Shepley v. Davis, 6 Taunt. 
 617; Withers v. Lyss, 4 Camp. 237; Boswell v. Kilborn, 15 Moo. P. C. 
 309. This is especially true where it is a cash transaction. HoSmau v. 
 Calver, 7 Bradw. 450; Pfistner v. Bird, 43 Mich 14. 
 
 2 See Lynch v. O'Donnell, 127 Mass. 311; Weld v. Came, 98 Mass. 
 152; Boynton v. Veazie, 24 Me. 286; Dyers. Libby, 61 Me. 45; Terry v. 
 Wheeler, 25 N. Y. 520; Underbill v. Boom Co., 40 Mich. 660; Muskegon 
 Boom Co. V. Underbill, 43 Mich. 629. 
 
 3 Woods V. Russell, 6 B. & Aid. 942; Clarke v. Spence, 4 A. & E. 448; 
 Reads. Fairbanks, 13 C. B. 692; 22 L. J. C. P. 206; Laidler v. Burlinson, 
 2 M. & W. 602; Wood v. Bell, 5 E. & B. 772; 25 L. J. Q. B. 148; s. c. Ex. 
 
 124 
 
CH. VII. J THE TRANSFER OF TITLE. § 87 
 
 But in the United States, tlie English cases are not fol- 
 lowed, the American cases holding that something more is 
 needed than an agreement to pay installments of the price 
 in the course of manufacture, in order to show an intention 
 to pass title immediately.^ The American authorities, 
 however, recognize the power of the parties to provide for 
 the transfer of the title pro tantu, in the course of manu- 
 facture, and on the payment of installments of the price, 
 if this intention is clearly manifested.''^ It has also been 
 held that the fact, that the goods have not been weighed, 
 counted or measured, will only prevent the title from pass- 
 ing when it is not the intention of the parties to do other- 
 wise ; and while it is presumed that the title does not pass 
 before the goods are weighed, measured or counted, where 
 these things are to be done before delivery, and as prelimi- 
 nary to a cash payment, yet the title will pass on a delivery 
 of the goods, although they have yet to be counted, 
 jneasured or weighed, unless the parties show in the terms 
 of their contract a contrary intention.* And it is held that 
 
 Ch. 6 E. & B. 355; 25 L. J. Q. B. 321. And this is also the case, in re- 
 spect to tlie materials wiiicli iiave been prepared and fitted to a sliip, but 
 not yet actuaKy attaclied. See Woods v. Russell, supra; Goss v. Quin- 
 ton, 3 M. & G. 825; Wood v. Bell, supra. But not If tlie materials have 
 not been fitted to, and thus constructively become a part of the ship. 
 Tripp V. Armltage, 4 M. & W. 687; Wood v. Bell, 6 E. &B. 356; 25 L. J. 
 Q. B. 321. 
 
 1 Briggs ». A Light Boat, 89 Mass. 287; Williams v. Jaclsman, 16 
 Gray, 514; Andrews v. Durant, H N. Y. 35. 
 
 2 See Clarlison v. Stevens, 106 U. S. 505; Elliott v. Edwards, 35 N. J. 
 L. 265; 36 N. J. L. 449; Scull u. Shakespear,-75 Pa. St. 297; Coursln's 
 Appeal, 79 Pa. St. 220; Lang's Appeal, 81 Pa. St. 18; Green u. Hall, 1 
 Houst. 506 ; Wright v. Tetlow, 99 Mass. 397. But see Sandford v. Wig- 
 gins Ferry Co., 27 Ind. 522; Bank of Upper Canada u. Killaly, .21 Up. 
 Can. Q. B. 9; Scudder v. Calais Steamboat Co., Cliff. 370. 
 
 3 Scott V. Wells, 6 Watts & S. 357; Dennis v. Alexander, 3 Pa. St. 61; 
 Bigley v. Kisher, 63 Pa. St. 165; Southwestern Freight Co. i;. Stanard, 
 44 Mo. 71; Ober ». Carson, 62 Mo. 209; Crofoot i;. Bennett, 2 N. Y. 268; 
 Tyler v. Strang, 21 Barb. 198; Bradley ». Wheeler, 44 N. Y. 496; Bur- 
 rows «. Whitaker, 71 N. Y. 291; Kaufman u. Stone, 25 Ark. 337; 
 
 125 
 
§ 87 THE TRANSFER OF TITLE. [CH. VII. 
 
 the title passes on delivery to the common carrier, notwith- 
 standing the goods are to be weighed or measured by the 
 buyer, in order to ascertain the price, where the contract 
 expressly provides that the goods shall be shipped at the 
 risk of the buyer. ^ It is also presumed, when the goods 
 are delivered without being measured or weighed, that the 
 buyer is expected to do what is necessary to ascertain the 
 quantity of the goods. ^ But this is only a debatable pre- 
 sumption; and if it is shown that the parties do not intend 
 to pass title until the quantity of goods has been ascer- 
 tained, the title will not pass sooner.^ 
 
 Where the buyer is required to do anything as a condi- 
 tion precedent, it follows of course that the title does not 
 pass until the condition is performed. The most common 
 example is the prepayment of the price. Before delivery, 
 the title will not pass until the price is paid, wherever the 
 contract calls for the prepayment of the price.* And so. 
 
 Bell V. Farrar, 41 111. 400; Magee v. Billingsley, 3 Ala. 679; Chambles ». 
 McKenzie, 31 Ark. 156; Riddle v. Varnum, 20 Pick. 280; Cashmau ». 
 Holyoke, 34 Me. 289; Macomber v. Parker, 13 Pick. 175; Lahlman ». 
 Mills, 3 Strobh. 385; Frazier v. Hilliard, 2 Strobh. 309; Adams Mining 
 Co. B. Senter, 26 Mich. 74; Allen v. Maury, 66 Ala. 10; Upson v. Holmes, 
 51 Conn. 500; Odell v. Boston & Maine R. R. Co., 109 Mass. 50; Leckell 
 ». Scott, 66 111. 106 ; Baldwin «. Doubleday, Vt. (4N. E. Rep. 
 
 124). See also Young v. Matthews, L. R. 2 C. P. 127; Kimberly v. 
 Patchin, 19 N. Y. 330; Russell ». Carrlngton, 42 N. Y. 118; 01Jphant«. 
 Baker, 5 Denio, 379. 
 
 1 Castle V. Playford, L. R. 5 Ex. 165; 7 Ex. 98; MartineaUB. Kitching, 
 L. R. 7 Q. B. 436; Alexander v. Gardner, 1 Bing. N. C. 671; Fragano ». 
 Long, 4 B. & C. 219. 
 
 2 Cunningham v. Ashbrook, 20 Mo. 553; Leonard v. Davis, 1 Black, 
 476; Ilaxall u. Willis, IS Gratt. 434 ; Weldv. Cutier, 2 Gray, 195; Colwell 
 17. Keystone Iron Co., 36 Mich. 51 ; Brewer v. Michigan Salt Association, 
 47 Mich. 526; Martin v. Hnrlbut, 9 Minn. 142; Burroughs v. Whitaker, 
 71 N. Y. 291; Bogy v. Rhodes, 4 Greene (Iowa), 133; Sedgwick?;. Cot- 
 tingham, 54 Iowa, 512; Whitcomb ». Whitney, 24 Mich. 486; Sewell v. 
 Eaton, 6 Wis. 490; Morrow v. Reed, 30 Wis. 81; Morgan v. Perkins, 1 
 Jones (N. C.) 171. 
 
 ' Ward V. Shaw, 7 Wend. 404. See Andrew v. Dietrich, 14 Wend. 36. 
 * Bishop V. Shillito, 2 B. & Aid. 329; Brandt v. Bowlby, 2 B. & Ad. 932; 
 126 
 
Ca. VII. J THE TRANSFER OF TITLE. § 88 
 
 also, where the goods have been delivered to the vendee, 
 the vendor having the right to retake the goods from the 
 vendee, if the price is not paid. This is quite common at 
 present in the contracts of sale of merchandise on time, 
 the terms being that the vendee does not acquire title until 
 the price is paid in full.' But even where the buyer is re- 
 quired to do .something with the goods, it is still a question 
 of intention, whether the title passes before or after he 
 does what is required of him.^ For the same reasons, the 
 title does not pass on delivery of the goods to the vendee, 
 where they are sent subject to approval, and the right to 
 return them, if they do not suit.^ 
 
 § 88. Sale o£ goods not specific. — Before one can 
 acquire the title to any kind of property, it must be defi- 
 nitely ascertained and described; i.e., the subject-matter 
 of the sale must be capable of identification. As long 
 as there is simply an obligation to sell a given quantity 
 of a thing, without specifying what lot or parcel of the 
 thing shall pass by the sale, the contract must remain 
 executory. Hence where one agrees to sell a given 
 quantity of a thing, generally, and without reference to 
 
 Shepherd v. Harrison, L. R. 4 Q. B. 196, 493; L. R. 4 H. L. 116; Barrow 
 V. Coles, 3 Camp. 92; Mires v. Solesby, 2 Mod. 243. 
 
 1 Ex parte Crawcour, 9 Ch. D. 419, C. A.; Ex parte Powell, 1 Ch. D. 
 504, C. A.; Crawcour v. Salter, 18 Ch. D. 30, C. A. ; Barrett v. Pritchard, 
 2 Pick. 512, Whitwell v. Vincent, 4 Pick. 449; Ayer v. Bartlett, 9 Pick. 
 156; Reed B. Upton, 10 Pick. 522; Booraem v. Crane, 103 Mass. 522; 
 Bauendahl v. Horr, 7 Blatchf . 548. This is the case, also, where tha vend- 
 or's creditors and subsequent purchasers claim the right to retake the 
 goods. The title does;not pass even as to them. CoggillB. Hartford, &c., 
 R. R. Co., 3 Gray, 545; Sargent v. Metcalf, 5 Gray, 306; Blanehard !). 
 Child, 7 Gray, 155. But see, ante, § 85, for a full discussion of the pass- 
 ing of title where the prepayment of price is a condition precedent. 
 
 2 Turley B. Bates, 2 H. & C. 200; Login v. Le Mesurier, 6 Moo. P. C. 
 116; Hinde v. 'Whitehouse, 7 East, 658; Kershaw v. Ogden, 34 L. J. Ex. 
 159; 3H. &C. 717. 
 
 3 Swain ». Shepherd, 1 Mood. & Rob. 223. See post, §213, on Con- 
 ditions. 
 
 127 
 
§ b8 THE TRANSFER OF TITLE. [CH. VII. 
 
 any particular lot of goocltj, or a portion of a larger 
 mass, no title passes, as a general rule, as long as the 
 subject-matter of the sale has not been selected and set 
 apart for the performance of the contract. For, until 
 this is done, the subject-matter of the sale has not been 
 individualized.^ The authorities are quite unanimous that 
 the title does not pass where the contract is for the 
 sale of a quantity of goods, generally described, and with- 
 out reference to any specific lot.^ And, also, where the 
 
 1 Wallace v. Breeds, 13 East, 522; Busk v. Davis, 2 M. & S. iJ97; White 
 V. Wilks, 5 Taunt. 176; Gillett v. Hill, 2 C. & M. 530; Austin v. Craven, 
 4 Taunt. 644; Shepley v. Davis, 5 Taunt. 617; Gabarron v. Kreeft, L. E. 
 10 Ex. 274; Brewer v. Smith, 3 Greenl. 44; Young v. Austin, 6 Pick. 280; 
 Merrills. Hunnewell, 13 Pick. 213; Woods ». McGee, 7 Ohio, 467; Dun- 
 lop V. Berry, 4 Sci^m. 327; Field v. Moore, Hill & Denio, 418; Hutchin- 
 son V. Hunter, 7 Pa. St. 140; Pollock ». Fisher, 1 Allen (N. B.) 515; Stev- 
 ens «. Eno, 10 Barb. 95; Waldo v. Belcher, 11 Ired. 609; Gardiner v. 
 Suydam, 7 N. Y. 357; Scudder v. Worster, 11 Gush. 573; Eopesc. Lane, 4 
 Allen, 510; Cook v. Logan, 7 Iowa, 142; McDougall v. Elliott, 20 Up. 
 Can. Q. B. 299; Ickington v. Elchey, 41 N. H. 275; Fuller v. Bean, 34 N. 
 H. 290; Warren v. Buckminster, 24 N. H. 337; Messer ii. Woodnian, 22 
 N. H. 172; Courtright v. Leonard, 11 Iowa, 32; Rosenthal «. Risley, 11 
 Iowa, 541; Bailey v. Smith, 43 N. H. 141; Stone v. Peacock, 35 Me. 385; 
 McLaughlin v. Piati, 27 Cal. 4C3; Haldeman v. Duncan, 51 Pa. St. 66; 
 Rodee *. Wade, 47 Barb. 53; Box «. Provincial Ins. Co., 15 Grant Ch- 
 337 (overruled in 18 Grant, 280); Browning©. Hamilton, 42 Ala. 484; 
 Baldwin v. McKay, 41 Miss. 358; Upham o. Dodd, 24 Ark. 545; Mobile 
 Sav. Bank v. Fry, 69 Ala. 350; Thomas v. The State, 37 Miss. 353; Sel- 
 ler i;. Block, 19 Ark. 566; Caruthers i;. McGarvey, 41 Cal. 15; Keeler «. 
 Goodwin, 111 Mass. 490; Foot v. Marsh, 51 N. Y. 288; Morrison v. Ding- 
 ley, 63 Me. 553 ; Hahn v. Fredericks, 30 Mich. 223 ; Huntington v. Chis- 
 holm, 61 Ga. 270; Central E. R. Co. v. Burr, 51 Ga. 553; Ferguson v. 
 Northern Bank, 14 Bush, 555; Bailey ». Long, 24 Kan. 90; Williams v 
 Feineman, 14 Kan. 288 ; Howell v. Pugh, 27 Kan. 702 ; Cleveland v. Will, 
 iams, 29 Tex. 204; Block v. Maas, 65 Ala. 211; Commercial Bank v. Gil- 
 lette, 90 Ind. 268 ; Fry v. Mobile Sav. Bank, 7b Ala. 473 ; Ober v. Carson, 
 62 Mo. 213; 6 Mo. App. 598; 9 Mo. App. 578; Fitzpatrick v. Fain, 3 
 Coldw. 15. 
 
 2 Banchor v. Warren, 33 N. H. 183; Randolph Iron Co., v. Elliott, 34 
 N. J. L. 184; Higgins v. Del. & Lack. E. E. Co., 51 N. Y. 288; 60 N. Y- 
 553; McCandlish v. Newman, 22 Pa. St. 460; Winslowc. Leonard, 24 Pa. 
 St. 12; Lewis V. Lofley, 60 Ga. 559; Pew v. Lawrence, 27 Up. Can. C. P. 
 
 128 
 
CH. VII. J THE TRANSFER OF TITLK. § 88 
 
 sale is of goods to be manufactured. The title does not 
 pass until the goods have been manufactured and made 
 ready for the delivery to the vendee. ^ But where the con- 
 tract is for the sale of an unspecified portion of a larger 
 mass, the American authorities exhibit a hopeless conflict. 
 It is maintained by some of the authorities that it can- 
 not in this case become a question of intention when the 
 title passes ; for the vendee cannot get the title to any 
 part of the goods, until that specific part has been identi- 
 fied and set apart. ^ This is, however, only true so far 
 that the acquisition of a title in severalty is impossible, 
 without a separation from the mass, whatever may have 
 been the intention of the parties. But if the parties so in- 
 tended, it is not at all impossible before separation from 
 the mass to transfer a title in common to a part, thus 
 making the transferee of a part a tenant in common with 
 . the other proprietors of the mass.* If, therefore, the 
 intention of the parlies to pass title to the goods before a 
 separation from the greater mass be proven, there is no 
 material obstacle in the way. But, except where the in- 
 tention is express, it is difficult to prove it. It requires a 
 strong array of facts, in evidence of a contrary intention, 
 to rebut the presumption that in the ordinary contract of 
 sale the parties intend to pass a title in severalty to the 
 goods sold, instead of a title in common with others to the 
 greater mass. The ordinary vendee does not expect to be- 
 
 402; WinslowB. Leonard, 24 Pa. St. 12; Moss v. Meshen, 8 Bush, 187; 
 Ormsby v. Machliu, 20 Ohio St. 295; May v. Hoaglan, 9 Bush, 171; Black 
 V. Webb, 20 Ohio, 304. 
 
 ' Nat. Bank v. Crowley, 24 Mich. 492; Ballentine v. Bobinson, 46 Pa. 
 St. 177; Moline Scale Co. v. Reed, 52 Iowa, 307; Higgins v. Murray, 4 
 tiun, 565; 73 N. Y. 252 ; Goddard v. Binney, ] 15 Mass. 460. 
 
 2 Ferguson v. Northern Bank, 14 Bush, 555, 566. 
 
 ' Kiraberly v. Patchin, 19 N. Y. 330; Hoyt u. Hartford Ins. Co., 26 
 Hun, 416; Iron Clifes Co. v. Buhl, 42 Mich. 86; Young v. Miles, 20 Wis. 
 615; Hurfe v Hires, 39 N. J. L. 4; 40 N. J. L. 681; Phillips v. Ocmulgee 
 Mills, 56 Ga. 634. 
 
 9 129 
 
§ 88 TUK TKANSKEll UF TITLK. [CH. VII. 
 
 come a tenant in common with others of a greater quantity 
 than what he bought. He expects to acquire what he 
 bought as his own individual property. In most of the 
 cases, in which the courts have held the title to have passed 
 before separation and identification of the goods, some fact 
 or circumstance has been present, from which may be in- 
 ferred, more or less strongly, the intention to pass title im- 
 mediately and to make the purchaser a tenant in common 
 with others of the whole mass. But in almost every such 
 instance, other cases will be cited in which the title was 
 held not to pass, notwithstanding the presence of facts 
 which had been held sufficient to support a contrary 
 inference, the two classes of cases being altogether irrecon- 
 cilable. 
 
 The first class of cases is composed of those, in which 
 the goods are stored in some elevator in bulk, and the 
 goods, such as grain, are not kept separate, but put into • 
 bins along with other grain of the same quality. In these 
 cases, the elevator company does not obligate itself to re- 
 turn the identical grain which has been deposited, only 
 grain of the same quantity and quality. The courts are 
 not unanimous in their description of the relation of the 
 elevator company to the deposited grain, some holding that 
 the company becomes the proprietor of the entire mass, 
 with an obligation to deliver to the depositors the grain 
 called for by the warehouse receipts, while others maintain 
 that the company is a bailee, and that the depositors be-^ 
 come tenants in common of the entire mass of deposited 
 grain.' It does not matter for the purposes of the present 
 question which of these views as to the relation of the ele- 
 vator company is sound, in any case, what the depositor 
 sells is not a part of a specific quantity of grain, but a part 
 of an incorporeal claim against another for a given amount 
 of grain. From the nature of the transaction, one would be 
 
 1 See ante, § 7. 
 130 
 
CH. VII. J THE TRANSFER OF TITLE. § 88 
 
 irresistibly forced to the conclusion, that the parties ex- 
 pected the purchaser by the contract of sale to succeed in 
 whole or in part to the incorporeal rights of the vendor.^ 
 And the same ruling has been applied to many other cases 
 in which the goods were at the time of sale in the keeping 
 of a warehouseman.^ 
 
 It has also been held to be evidence of an intention to 
 pass an immediate title in common, where the entire mass 
 is delivered to the purchaser to enable him to select Vv'hat 
 comes to him.' So, also, where the price is prepaid in 
 full,* where the parties stipulate that the goods will be at 
 the buyer's risk^ where the buyer insures his goods,® and 
 
 1 Gushing u. Breed, 14 Allen, 380; Morrisom?, Woodley, 84 111. 192; 
 Doles. Olmstead, 36 111. 150; McPherson v. Gale, 40111. 368; Kussell u. 
 Carrington, 42 N. Y. 118; Lobdell v. Stowell, 51 N. Y. 75. See Sexton 
 V. Graham, 53 Iowa, 183; German Nat. Bank v. Meadowcroft, 4 Bradw. 
 630; Bice ». Nixon, 97 Ind. 97; Schindler v. Westover, 99 Ind. 395; Lyon 
 «. Lenon, 106 Ind. 567; Barker v. Bushnell, 75 111. 220; Broadwell v. 
 Howard, 77 111. 305 ; Arthur v. Chicago, etc, Ey. Co., 61 Iowa, 648. See, 
 also, KaufEman v. Schilling, 58 Mo. 218; Andrews v. Richmond, 84 Hun, 
 24; Clark ■o. Griffiths, 24 N. Y. 595 ; Wooster v. Sherwood, 25 N. Y. 278; 
 Foot u. Marsh, 51 N. Y. 288; Galloway u. Week, 54 Wis. 604; Hoffman 
 i>; King, 58 Wis. 314. But, see, contra, Cook v. Lagan, 7 Iowa, 142, 
 where plaiatiHs were joint owners of a stock of wheat stored with de- 
 fendant, and one of the defendants sold defendant twenty bushels. 
 Held title did not pass. Although this is not an elevator case, the prin-. 
 ciple is the same. 
 
 2 Pleasants v. Pendleton, 6 Rand. 473; Horr v. Barker, 8 Cal. 603; 11 
 Cal, 393; Whitehouse v. Frost, 12 East, 614; Coffey v. Quebec Bank, 20 
 Up. Can. C. P. 110; 20 Up. Can. C. P. 555; Carpenter u. Graham, 42 
 Mich. 191; Crapo v. Seybold, 35 Mich. 169; 36 Mich. 444; Bank v. Hib- 
 bard, 48 Mich. 118; Newhall «. Langdon, 39 Ohio St. 87. But see, contra. 
 Woods V. McGee, 7 Ohio, 467; Pollock v. Fisher, 1 Allen (N. B.) 515; 
 Waldo V. Belcher, 11 Ired. 609; Gardiner v. Suydam, 7 N. Y. 357. 
 
 3 Lamprey v. Sargent, 58 N. H. 241; Page v. Carpenter, 10 N. H. 77; 
 Weld». Cutler, 2 Gray, 195; Brewer v. Salisbury, 9 Barb. 611; Crofoot 
 U.Bennett, 2N. Y. 258. 
 
 * Waldron v. Chase, 37 Me. 414. See Nesbit v. Burry, 25 Pa. St. 208. 
 
 ' Whitehouse v. Frost, 12 East, 614. 
 
 « Box V. Provincial Ins. Co., 18 Grant, 280; Cumberland Bone Co. v. 
 Andes Ins. Co., 64 Me. 466. In these cases the court held that the buyer 
 had an insurable interest. 
 
 131 
 
§ 89 THE TRANSFER OF TITLE. [CH. VII. 
 
 where the vendor agrees to hold the goods subject to the 
 buyer's order. ^ 
 
 § 89. What constitutes a sufficient appropriation in 
 sales of goods not specific. — Where the contract is for the 
 sale of goods not specifically described, the title, as already 
 explained in the preceding paragraph, does not pass until 
 there has been a suflScient appropriation of the specific goods 
 to the contract. In the first place, the goods must be 
 selected and set apart for delivery to the purchaser. But 
 this is not enough. The appropriation must be made with 
 the express or implied consent of the purchaser. As long 
 as the buyer does not in some form accept the goods, or 
 otherwise assent to the appropriation of them to the per- 
 formance of the contract, the title does not pass, and the 
 vendor may make some other disposition of the goods so 
 appropriated, without in any way invading any vested right 
 of the buyer. ^ And this is true, although the goods have 
 been expressly manufactured for the buyer. Before title 
 can pass, they must be completed and be delivered, or there 
 must be a tender of delivery.^ 
 
 ' Damon v. Osborn, 1 Pick. 476; Kimberly v. Patchin, 19 N. Y. 330; 
 Watts V. Hendry, 13 Fla. 523; Chapman v. Shepard, 39 Conn. 413. 
 But see, contra, Field v. Moore, Hill & Denio, 418 ; Scudder v. Worster, 
 11 Cush. 573; Box v. Provincial Ins. Co., 15 Grant Ch. 337; Poat v. 
 Marsh, 61 N. Y. 288. 
 
 2 Atkinson v. Bell, 8 B. & C. 277; Heyward's Case, 2 Coke, 36; Na- 
 tional Bank v. Bangs, 102 Mass. 291, 295; Aldridge v. Johnson, 7 E. & B. 
 885; 26 L. J. Q. B. 296; Bryans v. Nix, 4 M. & W. 775; Campbell s.The 
 Mersey Docks, 14 C. B. (n. s.) 412; Hanson v. Meyer, 6 East, 614; Eugg 
 V. Minett, 11 East, 210; Eohde v. Thwaltes, 6 B. & C. 688; Moody v. 
 Brown, 34 Me. 107; Eider u. Kelley, 32 Vt. 268; Stock v. Inglis, 9 Q. B. 
 Div.708; Elliott u. Pybus, 10 Bing. 512; Gowans i7. Consolidated Bank of 
 Canada, 43 Up. Can. Q. B. 318; De Wolf ». Gardner, 12 Cusli. 26; Hatch 
 V. Lincoln, 12 Cash. 34; Prince v. Boston, etc., R. R. Co., 101 Mass. 547; 
 First Nat. Bank v. Dearborn, 115 Mass. 219; Elliott v. Bradley, 23 Vt. 
 217; Grove v. Brien, 8 How. 429; Gibson v. Stevens, 8 How. 34. 
 
 3 Bement v. Smith, 15 Wend. 493; Hlgglns v. Murray, 4 Hun, 565; 
 Shawhan v. Van Nast, 25 Ohio St. 490 ; Specers v. Harvey, 9 E. I. 582 ; 
 
 132 
 
oil. VU,j TlIK TUANSFJiB Ol'' TITLK. § 89 
 
 But, as already stated, this assent need not be express. 
 It may be implied from various acts of the parties and the 
 terms of the contract. Merely putting a tag on the goods, 
 with the name of the purchaser, would not suffice, unless 
 shown to be done with the consent of the purchaser.^ But 
 notice to the purchaser of the appropriation and his promise 
 to take the goods away, will, of course, pass the title. ^ So 
 will, also, filling the purchaser's sacks with the selected 
 goods. ^ So, also, when the agreement of the parties, or 
 us:ige and custom, authorizes the vendor to do so, a de- 
 livery of the selected goods to a common carrier will be a 
 sufficient assent to the appropriation, in order to pass the 
 title.* The title also passes on delivery of the bill of lad- 
 
 Ballentine o. Robinson, 46 Pa. St. 477; Gordan v. Norris, 49 N. H. 376, 
 Mt. Hope Iron Co. v. Bufflnton, 103 Mass. 62; Goddard v. Blnney, 115 
 Mass. 456; Atkinson v. Bell, 8 B. & C. 277; Mucklows. Mangles, 1 Taunt. 
 31 8 ; Bishop v. Crawshay, 3 B. & C. 415. 
 
 1 Jenner v. L. E. 4 (J. P. 270. 
 
 2 Kohde V. Thwaites, C B. & C. 388. 
 
 3 Aldridge v. Johnson, 7 E. & B. 885 ; 26 L. J. B. 296 ; Langton v. Big- 
 gins, 4 H. & N. 402; 28 L. J. Ex. 252. 
 
 ' Fragano v. Long, 4 B. & C. 219; Dutton v. Solomonson, 3 B. & P. 
 582; Cork Distilleries Co. v. Great Southern, etc., Ey. Co., L. E. 7 H. L. 
 269; Johnson v. Lancashire, &c., Ey. Co., 3 C. P. D. 499; Krulder ». 
 Ellison, 47 N. Y. 36; Alexander v. Gardner, 1 Bing. N. C. 671; Wilklns 
 !>. Bromhead, 6 M. & G. 963; s. c. 7 Scott N. E. 921 ; Sparkes v. Marshall, 
 2 Bing. N. C. 761 ; Brown v. Hare, 3 H. & N. 484 ; 27 L. J. Ex. 372 ; Ex. 
 Ch. 4 H. & N. 822 ; 29 L. J. Ex. 6 ; Ex parte Pearson, 3 Ch. 443 ; The Mary 
 & Susan, 1 Wheat. 25; Magruder v. Gage, 33 Md. 344; Gutwillig v. Zu- 
 herbier, 2 N. Y. St. Eep. 605; Bailey v. HudsouEiver E. E. Co., 49 N. Y. 
 70; Whiting v. Farrand, 1 Conn. 60; Blum v. The Caddo, 1 Woods, 64; 
 Schmertz v. Dwyer, 53 Pa. St. 335; Putnam v. Tillotson, 13 Met. 517; 
 Waldron u. Eomanie, 22 N. Y. 368; Hunter v. Wright, 12 Allen, 548; 
 Claflin V. Boston, etc., E. E. Co., 7 Allen, 341; Torry v. Corliss, 33 Me. 
 333, 336; Ober v. Smith, 78 N. C. 318; Summeril v. Elder, 1 Binn. 106; 
 Stanton v. Eagan, IG Pick. 467; Stafford v. Walter, 67 111. 83; Eanney v. 
 Higby, 4 Wis. 154; 5 Wis. 62; Wing v. Clark, 24 Mo. 366; Griffith ». In- 
 gledew, 6 S. & E. 429 ; Grove v. Brien, 8 How. 438 ; Lawrence v. Minturn, 
 17 How. 107; Johnson v. Stoddard, 100 Mass. 306; Odell ij. Boston, &c., 
 R. E. Co., 109 Mass. 50; Armentrout v. St. Louis R. R. Co., 1 Mo. App. 
 158; Phila., &c., E. E. Co. v. Wiseman, 88 Pa. St. 265. 
 
 133 
 
§ 89 THE TKANSFER OF TITLE. [CH. VII. 
 
 ing.i Whether the title will pass to a part of the goods, 
 before the rest has been delivered to the carrier, has been 
 decided both in the affirmative,^ and in the negative.^ 
 These cases are different from those in which only part of 
 the goods is delivered with no intention of sending the rest. 
 In the latter cases, the title does not pass.* 
 
 But it is always a question of intention whether or not 
 the title to the goods passes on delivery and before actual 
 receipt by the consignee.^ The presumption of law is in 
 favor of the title passing, while the intention to the contrary 
 is usually manifested by some act of the parties or term of 
 the contract. Thus it has been held that the title does not 
 pass with delivery, where the vendor is to pay the freight,' 
 where the vendee is to prepay the price; ' where the bill of 
 lading runs in the name of the shipper, and is unindorsed 
 and not delivered to the consignee ; * and where the goods 
 delivered were not ordered at all ® or are materially differ- 
 ent from those which were ordered, either in quality or 
 
 1 Brown v. Hare, 3 H. & N. 484; 27 L. J. Ex. 372; 29 L. J. Ex. 6; 
 Tegalles v, Sewell, 7 H. & N. 571. 
 
 2 Calcutta Company v. DeMattos, 32 L. J. Q. B. 322. In this case, the 
 court held the title to pass on delivery to the carrier, although the par- 
 ties agreed that half the price was not to be due, until the goods had 
 been delivered to the consignee at the port of destination. 
 
 3 Bryans v. Nix, 4 M. & W. 775. 
 
 * Bruce v. Pearson, 3 Johns. 534; Rochester Oil Co. v. Hughley, 56 
 Pa. St. 322. 
 
 ' Merchants' Nat. Bank v. Bangs, 102 Mass. 291; Prince v. Boston, 
 &c., E. R. Co., 101 Mass. 547; Wigton v. Bowley, 130 Mass. 252; Strauss 
 V. Wessell, 30 Ohio St. 211. 
 
 6 Suit V. Woodhall, 113 Mass. 391; Dunlop v. Lambert, 6 CI. & Fin. 
 600. 
 
 ' Godis V. Rose, 17 C. B. 229; 25 L. J. C. P. 61. 
 
 » Wise V. McMahon, Longt. & T. 192. 
 
 9 The Francis, 2 Gall. 391; St. Joze Indians, 1 Wheat. 208. The Julia, 
 8 Cranch, 183. Whether a consignment to a factor for sale, or to a cred- 
 itor in liquidation of the debt, passes title on delivery to the carrier, 
 see, Elliott v. Bradley, 23 Vt. 217; Saunders v. Bartlett, 12 Heisk. 316; 
 Oliver u. Moore, 12 Heisk. 482; Bonner v. Marsh, 10 Smed. & M. 376; 
 Hodges V. Kimball, 49 Iowa, 577. 
 134 
 
CH. VII. J THE TKANSFElt OK TITLE. § 89 
 
 character ^ or in quantity, being more or less than what was 
 ordered. In such cases, the consignee may reject the entire 
 shipment. He cannot be compelled to receive the part 
 which he had ordered, nor can he be sued for the price 
 unless he had accepted the goods, thus wrongfully shipped.^ 
 So, also, the title does not pass on delivery to the carrier, 
 when there is no express or implied authority from the 
 buyers to make such a delivery.^ The title will not pass 
 o,n delivery to the common carrier, if the directions to the 
 consignee on the packages are not distinct and correct. 
 This is a natural and reasonable ruling.* 
 
 But when there has been an appropriation, which is 
 not binding for any reason, such as variance in the quan- 
 tity or quality of the goods, and the like, a second appro- 
 priation may be made, which will bind the purchaser, 
 provided the delay in shipment, caused by the error in the 
 first appropriation, does not constitute the breach of a 
 material condition of the contract.^ 
 
 1 Gardner v. Lane, 9 Allen, 492; 11 Allen, 39; 98 Mass. 617. 
 
 2 CunlifE V. Harrison, 6 Ex. 903; Hart v. Mills, 15 M. & W. 85; Dixon 
 V. rietcher, 8 M. & W. 145; Eommel v. Wingate, 103 Mass. 327; Larkin 
 V. Mitchell Lumber Co., 42 Mich. 296; Barton v. Kane, 17 Wis. 38; 
 Downers. Thompson, 6 Hill, 208; Defenbaugh v. Weaver, 87 111. 132; 
 Downs V. Mar?h, 29 Conn. 409; Bruce v. Pearson, 3 Johns. 534; Roches- 
 ter Oil Co. V. Hughley 56 Pa. St. 322; Corning v. Colt, 6 Wend. 254. In 
 Levy V. Green, 1 E. & E. 969; 28 L. J. Q. B. 319, all the goods which 
 were ordered were sent, but in addition other goods of a different 
 character were packed in the same crate. The title to the goods ordered 
 was held not to pass. See, also, Tarling v. O'Kiordan 2 L. R. Ir. 82, 
 C. A.; 27 L. J. Q. B. 111. 
 
 ' Loydu. Wright, 20 Ga. 574; Hanover ». Bartels, 2 Col. 514; Hague 
 i;. Porter, 3 Hill, 141. 
 
 * Woodruff V. Noyes, 15 Conn. 335; Finn v. Clark, 10 Allen, 479; 12 
 Allen, 522; Garrelson v. Selby, 37 Iowa, 529. 
 
 5 Borrowman v. Free, 1 Q. B. D. 500, C. A. See Gath v. Lees, 3 H. & 
 C. 568. 
 
 135 
 
CHAPTER yill. 
 
 DELIVERY. 
 
 Section 92, What is meant by delivery. 
 
 93. When buyer entitled to delivery. • 
 
 94. When and how far it is vendor's duty to make delivery. 
 
 95. Delivery to the common carrier. 
 95a. Delivery to a warehouseman. 
 
 96. Place of delivery. 
 
 97. Buyer's license to enter premises, irrevocable. 
 
 98. Time of delivery. 
 
 99. Computation of time — Divisions of time — Hour of the day. 
 
 100. Reasonable time — Forthwith — As soon as possible. 
 
 101. Quantity to be delivered — Effect of partial delivery. 
 
 102. Effect of words of indefinite estimate — More or less — 
 
 About — Say about. 
 
 103. Delivery by installments. 
 
 104. Form of delivery — Actual and constructive delivery. 
 
 105. Symbolical delivery. < 
 
 106. What delivery is sufficient as against creditors and subse- 
 
 quent purchasers. 
 
 107. Second delivery permissible, when first is defective. 
 
 108. Rescission of sale — Rights of vendee's creditors. 
 
 109. Delivery incomplete without acceptance. 
 
 § 92. What is meant by delivery. — As has been already 
 explained in a preceding chapter,^ the term "delivery" 
 has been employed in more than one sense, sometimes 
 meaning a transfer of title, and at other times a transfer of 
 possession. The only sense in which the word can properly 
 be used is in that of transfer of possession. It is in this 
 sense that the present writer employs the word. The sub- 
 ject of the present chapter is, therefore, the transfer of 
 possession in the performance of the executory contract of 
 sale. 
 
 1 See ante, § 84. 
 136 
 
CH. Vni. ] DELIVERY. § 93 
 
 § 93. When buyer entitled to delivery — Delivery and 
 payment concurrent acts. — It has been already sufEciently 
 explained in the preceding chapter,^ to enable us to di-^- 
 pense with further explanation, that there cannot be any 
 transfer of title, and hence of possession, until there has 
 been some specification or individualization of the goods 
 sold. But the buyer is not always entitled to posses- 
 sion, although the goods are specific or have been selected 
 and identified. If the sale is on credit, and nothing is said 
 about the tim.e of delivery, the buyer is entitled to imme- 
 dinte delivery, without payment of the price. The vendor 
 fiinnot ill sucli case claim the right to retain the possession, 
 until the price has been paid,^ and the title passes abso- 
 lutely.'* But if 'the possession has hot yet been transferred, 
 when the buyer becomes insolvent, it seems that the vendor 
 may retain posses-^ion, and refuse to deliver it.* 
 
 But where there is no agreement for future payments, 
 the sale becomes a cash transaction, in which the delivery 
 of the goods and the payment of the price are concurrent 
 and inter-conditional acts.® The buyer cannot demand a 
 delivery of the goods without payment of the price or a 
 tender of payment. Nor can the vendor require payment 
 without tender of delivery.^ And while a delivery without 
 
 1 See ante, chap. vii. 
 
 2 Bloxam v. Sanders, 4 Barn. & C. 941 . 
 
 ' Machaners v. Long, 85 Pa. St. 158 ; Harris v. Smith, 3 Serg. & R. 
 21 ; Scott V. Wells, 6 Watts & S. 357. 
 
 * Bloxam v. Sanders, 4 Barn. & C. 941 ; citing Tooke v. Hollingsworth, 
 5 T. R. 215. 
 
 s Hashins v. Warren, 115 Mass. 533 ; Phelps v. Hubbard, 51 Vt. 589. 
 
 « Toledo, &c., Ry . Co. v. Gllvin, 81 111. 511; Chapin v. Potter, 1 Hilt. 366, 
 376 ; Whltcomb v. Hungerf ord, 42 Barb. 177 ; Conway v. Bush, 4 Barb. 664 ; 
 Hancock B. Gibson, 3 Up. Can. Q. B. 41; Haskins v. Warren, 113 Mass. 
 533; Pierson v. Hoag, 47 Barb. 244; Flecman v. McKean, 25 Barb. 474; 
 McDonald w. Hewlett, 15 Johns. 349; Mich. Cent. E. R. Co. v. Phillips, 
 60 m. 190; Knight v. New Eng. Worsted Co., 2 Cush. 271; Upton v. 
 Sturbridge Cotton Mills, 111 Mass. 446; Goodwin v. Boston, &c., R. R. 
 Co., Ill Mass. 487; Freeman v. Nichols, 1 16 Mass. 309; Barnes v. Bart- 
 
 137 
 
f 94 DELIVERY. [CH. VIII. 
 
 exaction of payment usually operates as a waiver of pre- 
 payment, and causes the absolute title to the goods to vest in 
 the purchaser,^ if the vendor makes delivery in expectation 
 of an immediate payment of the price, the transfer of title 
 and possession is in such a case only conditional; and the 
 vendor may reclaim the goods and revest the title to them 
 in himself.^ 
 
 § 94. Wben and how far it is vendor's duty to make 
 delivery. — If the parties have not entered into any express 
 agreement in relation to it, the vendor is not required to 
 send or carry the goods to the vendee. He performs his 
 full duty when he stands ready to deliver the goods to the 
 vendee, at his call. And if the vendee dees not call for 
 the goods, the vendor may nevertheless sue for the price in 
 an action for goods bargained and sold, although the goods 
 remain in his possession.^ 
 
 lett, 15 Pick. 77; Scudder v. Bradbury, 106 Mass. 422; West. Transp. Co, 
 V. Marshall, i Abb. N. Y. App. 675; Tipton v. Feltner, 20 N. Y. 423; 
 Leonard v. Davis, 1 Black. 476; Piatt v. McFauU, 4 Up. Can. C. P. 293; 
 Moore v. Logan, 6 Up. Can. C. P. 294; Butters v. Stanley, 21 Up. Can. 
 C. P. 402; Wright v. Weed, 6 Up. Can. Q. B. 140; HefEerman v. Berry, 32 
 Up Can. Q. B. 518; McCann v. Kirlin, 3 Allen N. B. 346; Phippen v. 
 Stlckney, 19 Up. Can. C. P. 416; Machaners v. Long, 85 Pa. St. 168; 
 Southw. Freight Co. v. Plant, 45 Mo. 517. 
 
 1 Smith V. Lynes, 1 Seld. 41; Haskins «. Warren, 115 Mass. 533; 
 Parlow V. Ellis, 15 Gray, 229. 
 
 2 Paul V. Bead, 62 N. H. 136; Beauchamp v. Archer, 58 Cal. 431 (41 
 Am. Rep. 266) ; Deshon v. Bigelow, 8 Gray, 159; Ferguson v. Clifford, 37 
 N. H. 86 ; Palmer v. Hand, 13 Johns. 434 (7 Am. Dec. 392) ; Conway v. 
 Bush, 4 Barb. 564; Gardner v. Clark, 21 N. Y. 399; Hodgson v. Barrett, 
 33 Ohio St. 63 (31 Am. Eep. 527); Harris v. Smith, 3 Serg. & K. 20; 
 Henderson?;. Lanch, 21 Pa. St. 359; Adair v. Malone, 1 Hud. &B. 49; 
 Eiley v. Wheeler, 42 Vt. 528; Leedom v. Phillips, 1 Yeates, 527; Hill v. 
 McKenzie, 3 Thomp. & C. 122; Miller v. Jones, 66 Barb. 148; Leven ». 
 Smith, 1 Denio, 671 ; Luey v. Bundy, 9 N. H. 302; Marston v, Baldwin, 17 
 Mass. 606; Owens v. Weedman, 82 lU. 409. 
 
 3 Wade V. Moffltt, 21 111. 110 (74 Am. Dec. 79); Kohl v. Lindley, 39 
 111. 195; Blssell v. Balcom, 39 N. Y.-275; Morse u. Sherman, 106 Mass. 
 430, 432; Frazier v. Simmons, 139 Mass. 531, 535; Turner o. Langdon, 
 
 138 
 
CH. Vlll.] DELIVEKY. § 95 
 
 But when it is the duty of the vendor to forward the 
 goods to the vendee, he can maintain no action until he has 
 performed tliis additional duty.^ But, even then, he may 
 be excused, if the buyer was required to designate the 
 place of delivery and receipt,^ or to furnish the means of 
 transportation ,3 and he failed to do so. If the vendor pos- 
 itively agrees to deliver the goods at the residence or place 
 of business of the buyer, he incurs loss arising from dam- 
 age suffered by the goods in the course of transportation.* 
 But where there is no positive agreement to that effect, a 
 
 § 95. Delivery to the common carrier, — for transporta- 
 tion to the vendee, whether in accordance with his express 
 or implied instructions, is held to be a delivery to the 
 vendee's agent, and equivalent to a delivery to the vendee 
 himself.^ And delivery at the carrier's wharf or ware- 
 
 112 Mass. 265; Allingham v. O'Mahoney, 1 Pugs. 326; Stearns v. Wash- 
 burn, 7 Gray, 187. 
 
 1 Council Bluffs Iron Co. v. Cuppey, 41 Iowa, 104; Cocker v. Franklin 
 Hemp Co., 3 Sumn. 530; Cornwith v. Colter, 82 111. 585; Steele Works v. 
 Dewey, 37 Ohio St. 242; Smith v. Wheeler, 7 Oreg. 49. 
 
 2 Hunter v. Wetsell, 84 N. Y. 549; Hlggins v. Murray, 73 N. Y. 262; 
 Weld V. Came, 98 Mass. 152. 
 
 3 Bolton ». Kiddle, 35 Mich. 13; Kunkle v. Mitchell, 56 Pa. St. 100; 
 Armitage v. Insole, 14 Q. B. 728 ; Davies v. McLean, 21 W. E. 264 ; 28 L. 
 T. (N. s.) 113; Staunton v. Austin, L. E. 7 C. P. 651; Sutherland v. All- 
 husen, 14 L. T. (N. s.) 666. 
 
 ^ Taylor ij. Cole, 111 Mass. 363. 
 
 "■ Bradford v. Marbury, 12 Ala. 520 (46 Am. Dec. 264) ; Hobart v. Lit- 
 tlefleld, 13 B. I. 341; Ludlow*. Bowne, 1 Johns. 115; Dunlop u. Lam- 
 bert, 6 Clark & F. 600; Hunters. Wright, 12 Allen, 548; Garland v. Lane, 
 46 N. H. 245; Thompson v. Baltimore, &c., E. E. Co., 28 Md. 396; 'bur- 
 ton V. Balrd, 44 Ark. 556; State v. Carl, 43 Ark. 353; Pilgreen v. State, 71 
 Ala. 368; State o. O'Neill, 58 Vt. 140 (56 Am. Bep. 557); Sarbecker u. 
 ■State, 65 Wis. 171 (56 Am. Eep. 624) ; Pragano v. Long, 4 Barn. & C. 219 ; 
 Dawes v. Peck, 8 T. E. 330; Johnson v. Dodgson, 2 M. & W. 653; Mer- 
 edith, V. Meigh, 2 E. & B. 364; 22 L. J. Q. B. 401 ; Hart v. Bush, E. B. 
 & E. 494; 27 L. J. Q. B. 271; Smith v. Hudson, 6 B. & S. 431; 34 L. J. Q. 
 B. 145; Cusacks. Eobinson, 1 B. & S. 299; 30 L. J. Q. B. 261; .>:orman 
 V. Phillips, 4M. & W. 277; Com. v. Farnum, 114 Mass. 267; Janney v. 
 
 139 
 
§ 95 DELIVERY. [CH. VIII. 
 
 hou^o, to some receiving clerk, would ordinarily be a suffi- 
 cient delivery to the carrier, in order to pass title and risk 
 to the vendee.^ But this is not the case, where the seller 
 determines, or the contract requires him, to make the com- 
 mon carrier his own agent. In such cases, there is no 
 transfer of possession, until the goods have been delivered 
 by the carrier to the vendee or his agent.'' The common 
 method of reserving title and possession after delivery to 
 the carrier is to have the bill of lading written up in the 
 shipper's name, and the goods deliverable to the shipper's 
 order. Whenever that is done, the common carrier is an 
 agent of the seller, and there is no delivery of possession, 
 until the bill of lading has been indorsed and transferred.^ 
 But in making delivery to a common carrier, in order to 
 throw the risk on the buyer, the vendor must take every 
 precaution to insure a safe delivery to the buyer. Any 
 mistake in the address, or in the notice to the carrier of the 
 character of the goods, and the like, whereby loss of or 
 
 Sleeper, 30 Minn. 473; Garbracht o. Com., 96 Pa. St. 449 (42 Am. Rep. 
 560J; 'E'mch.v. Mansfield, 97 Mass. 89; Abberger v. Marin, 102 Mass 70; 
 Brockway v, Maloney, 102 Mass. 308; Dolan v. Green, 110 Mass. 322; 
 Franks. Hoey, 128 Mass. 263; Tegler v. Shipman, 33 Iowa, 194 (11 Am.. 
 Rep. 118); Shnenfeldt ». Junkerman, 20 Fed. Rep. 357; Hill «. Spear, 50 
 N. H. 253 (9 Am. Rep. 206) ; Boothby v. Haisted, 61 N. H. 436 (12 Am. 
 Rep. 140; Ranney v. Higby, 4 Wis. 154; Somers v. McLaughlin, 57 
 Wis. 364. 
 
 1 HobartB. Littlefield, 13 R. I. 341; Packard v. Getman, 6 Cow. 757; 
 B. R. Co. V. Barrett, 36 Ohio St. 448. 
 
 2 Dunlop V. Lambert, 6 Clark & F. 600; Wait e. Baker, 2 Ex. 1; Per- 
 kins «. Eckert, 55 Cal. 400; Hall v. Gaylor, 37 Conn. 550; Magruder v. 
 Gage, 33 Md. 344 (3 Am. Rep. 177) ; Ranney v. Higby, 6 Wis. 62; Wilcox 
 Silver Plate Co. v. Green, 72 N. Y. 17. 
 
 3 Forchelmeru. Stewart, 66 Iowa, 594 (54 Am. Rep. 80). See, First 
 Nat. Bank v. Crocker, 111 Mass. 163, 167; Reynolds v. Scott, 4 Pac. Rep. 
 346; Ellershaw v. Magniac, 6 Ex. 570; Jenkyns v. Brown, 14 Q. B. 496; 
 19 L. J. Q. B. 286; Gabarron v. Kreeft, L. R. 10 Ex. 474; Ex parte Ban- 
 ner, L. R. 2 Ch. D. 78; Mason v. Great West. Ry. Co., 31 Up. Can. Q. B. 
 73; Ogg V. Shuter, L. R. 1 C. P. D. 47; Shepherd v. Harrison, L. B. 4 Q. 
 B. 196; Waite v. Baker, 2 Ex. 1 ; Wilmshurst v. Bowker, 2 Man. & G. 792 
 (7 Man. & G. 
 
 140 
 
CH. VIII. J DELIVKKY. § 96 
 
 damage to the goods results, will make the vendor responsi- 
 ble.^ And any deviation from the express instructions of 
 the buyer, or any change by the seller in the directions for 
 transportation after the goods have been given to the car- 
 rier, would operate to retain the possession and title in the 
 vendor, and prevent the transfer of them to the vendee.' 
 
 § 95a. Delivery to a warehonseman. — There is also, a 
 sufficient delivery in order to transfer the title and risk to 
 the buyer, if the goods are delivered to a warehouseman, to 
 be kept by him for the buyer, the delivery being made in 
 accordance with the terms of the contract or the instruc- 
 tions of the buyer. ^ 
 
 § 96. Place of delivery. — If the parties have not selected 
 or designated a place for delivery of the goods in the per- 
 formance of a contract of sale, the goods must be held ready 
 for delivery at the place where they were at the time of 
 sale.* And the vendor assumes all the risk of an attempt 
 to make delivery anywhere else.® So, likewise, will he be 
 liable to the vendee for any greater expense which might 
 
 1 Clarke o. Hutchins, 14 East, 475. In this case, carrier disclaimed 
 responsibility for loss of package over 51. in value, unless notified of the 
 value. The seller failed to give this notice. See, also, Bull o. Robinson, 
 10 Ex. 341; Johnsons. Stoddard, 100 Mass. 300; Whiting u. Farrand, 1 
 Conn. 60; Downer v. Thompson, 2 Hill, 137; Quimby v. Carr, 7 Allen, 
 417; Finn v. Clark, 10 Allen, 484; a. c, 12 Allen, 522; Fosters. Roch- 
 well, 104 Mass. 170; Odell v. Boston, &c., R. R. Co., 109 Mass. 50; Wig- 
 tons. Bowiey, 130 Mass. 252. 
 
 " Wheelhouser v. Parr, Mass. (1886) 6 N. E. Eep. 787. 
 
 ' See Hunter v. Wright, 12 Allen, 548; Williams v. Lerch, 66 Cal. 330; 
 Means ». Williamson, 37 Me. 556. 
 
 * Rice V. Churchill, 2 Denio, 145; Middlesex Co. v. Osgood, 4 Gray, 
 429; Barr o. Nyers, 3 Watts & S. 299; Goodwin v. Holbrook, 4 Wend. 
 380; Kraft v. Kurtz, 11 Mo. 109; Lobdell v. Hopkins, 5 Cow. 516; Miles 
 I'. Roberts, 34 N. H. 253; Smith v. .Gillette, 50 111. 290; Js'-oby o. 
 Schwartzwelder, 1 Bibb. 430; Lucas w. Nicholls, 5 Gray, 309; Fields. 
 Bunk, 2 N. J. 525; Brownsoni). Gleason, 7 Barb. 472. 
 
 ' 2 Schouler Personal Prop., § 385. 
 
 141 
 
§ 96 DELIVERY. [CH. VIII. 
 
 be incurred in getting the goods to the intended phice of 
 destination, arising out of the vendor's delivery at the 
 wrong place. ^ But if a place is designated, or to be desig- 
 nated by the parties or by one of them, then delivery must 
 be made at th;it place, and cannot be made elsewhere, with- 
 out the consent of all parties.^ And if the buyer is to de- 
 signate the place of delivery, his failure to do so within a 
 reasonable time is a good excuse for non-delivery, and 
 enables the vendor to sue for the price without making de- 
 livery.^ So, also, if the vendor is to select the place of 
 delivery, he must give the vendee reasonable notice in 
 advance of his selection, in order that the delivery at 
 that place may operate as a transfer of possession to the 
 vendee.* 
 
 If the goods are already in the possession of the buyer, 
 no other place of delivery will be presumed; indeed, there 
 is no need of any formal delivery whatever." 
 
 1 Story on Sales, § 308. 
 
 * Lucas 17. Nichols, 5 Gray, 309; Mellidge v. Boston Iron Co., 6 Gush. 
 168 (51 Am. Dec. 59) ; Devine v. Edwards, 101 111. 138. But the parties 
 may waive delivery at the designated place, and provide for it elsewhere. 
 And the waiver may be by parol agreement. Hunt v. Thurman, 15 Vt. 
 336 (40 Am. Dec. 683) ; McCombs v. McKennan, 2 Watts & S. 216. 
 
 8 Lucas V. Nichols, 5 Gray, 309; Smith v. Wheeler, 7 Oreg. 49; Boyd 
 V. Gunnison, 14 W. Va. 1; Hunter v. Wetsell, 84 N. Y. 54!l; (38 Am. Kep. 
 544); Brunshill u. Muir, 15 Up. Can. Q. B. 213; Bolton w. Riddle, 35 
 Mich. 18; Higgins v. Murray, 73 N. Y. 252; Weld v. Came, 98 Ma'S. 152. 
 So, also, where the goods are to be delivered onboard of the purchaser's 
 vessel, the purchaser must give notice to the seller when he is ready to 
 receive them. Armitage v. Insole, 14 Q. B. 728; Davies v. McLean, 21 
 W. K. 264; 28 L. T. (n. s.) 113: Stanton v. Austin, L. R. 7 C. P. 651; 
 Sutherland v. AUhuser, 14 L. T. (n. s.) 666. 
 
 * Rogers v. Van Hoesen, 12 Johns. 221; Davies u. McLean, 21 W. R. 
 264; 28 L. T. (n. s.) 113. 
 
 « ShurtlefE v. Willard, 19 Pick. 210; Lake v. Morris, 30 Conn. 201; 
 Warden v. Marshall, 99 Mass. 305; Maeomber v. Parker, 13 Pict. 175; 
 Nichols w. Patten, 18 Me. 231. The same rule applies to sales of un- 
 divided interest in property by one tenant in common to another. Beau- 
 mont V. Crane, 14 Mass. 400; Kittredge v. Sumner, 11 Pick. 60; Cushlng 
 V. Breed, 14 Allen, 376. 
 142 
 
CH. VIII. J DELIVERY. § 98 
 
 § 97. Buyers license to enter premises irrevocable. — 
 
 If the buyer has, by the terms of the contract, to remove 
 the goods from the place of deposit, he has au implied 
 license to go upon the land, or 'into the building where they 
 are deposited, for the purpose of removing them ; and this 
 license is irrevocable.^ 
 
 § 98. Time of delivery. — The time of performance 
 does not always go to the essence of the contract, and 
 where it does not, any reasonable delay in the performance 
 of the contract will not authorize the vendee to refuse ac- 
 ceptance of the goods, when tendered, unless some injury 
 is sustained by the vendee in consequence of the delay.''' 
 But where injury results from the delay in the time of 
 perform;ince, or the parties have expressly agreed upon a 
 time of performance, in such a manner as to make its ob- 
 servance a condition precedent to the obligation of the 
 vendee for the price, — the time of performance going to 
 the essence of the contract — the vendee is not obliged to 
 receive the goods unless they are delivered within the time 
 agreed upon.* And if .any damage is suffered by the ven- 
 dee in consequence of this delay, the vendee, in addition 
 to refusing the goods, will be able to recover of the vendor 
 the damages thus suffered.* Where the buyer is to desig- 
 
 ' McLeod V. Jones, 105 Mass. 403; McNeal v. Emerson, 16 Gray, 384; 
 Wood «. Tassell, 6 Q. B. 234; Salter v. Woollams, 2 Man. & G. 650; 
 Bentall v. Barr, 3 Barn. & C. 423; Wood v. Manley, 11 Ad. & E. 34. 
 
 2 Paton V. Rogers, 1 Ves. & Beam. 351; Thomas v. Bering, 1 Keen, 
 729; Voorhees v. T>e Meyer, 2 Barb. 37. But where the delay became 
 unreasonable, although no injury resulted, the vendee may rescind the 
 sale, by giving notice to the vendor. Benson v. Lamb, 9 Beav. 502. 
 
 3 Ellis V. Thompson, 3 M. & W. 445; Jones v. Gibbons, 8 Ex. 920; 
 Samson v. Rhodes, 8 Scott, 544; Suydam v. Clarke, 2 Sandf. 133; Hipwill 
 V. Knight, 1 Younge & Call. 415; Coslake v. Till, 1 Russ. 376; Winshnrst 
 V. Deeley, 2 0. B. 253; Higgins v. Delaware B. R. Co., 60 N. Y. 557. 
 
 * Rhodes v. Cleveland Rolling Mills, 17 Fed. Rep. 426; New Haven, 
 &c., R. R. Co. V. Quintard, 31 N. Y. S. C. 89; Phillips v. Taylor, 49 N. Y. 
 S. C. 318. 
 
 143 
 
§ 99 DELIVERY. [CH. VIII. 
 
 nate the time of performance, as where he has an option 
 to buy within certain periods of time,^ or where the de- 
 livery is to be made on demand of the buyer ,^ the buyer 
 must give notice to the seller, before there can be any 
 action against the seller for breach of the contract. 
 
 The performance of the contract within the agreed time 
 may be waived by subsequent agreement or tacit under- 
 standing of the parties. But in order that a waiver as to 
 lime may be established, either acts must be shown which 
 amount to an estoppel, or an express agreement founded 
 upon a new consideration must be proven.' 
 
 § 99. Computation of time — Divisions of time — 
 Hour of the day. — In the computation of time in com- 
 mercial contracts, the word "month" means calendar 
 month, and not lunar month.* 
 
 Where the computation is by days, consecutive days, 
 including Sundays, are meant.® 
 
 Ordinarily, in the computation of time, the first day is 
 
 1 Colvin V. Weedman, 50 111. 311; Holt v. Brown, 63 Iowa, 319 ( "on 
 or before " a certain date.) 
 
 2 Bowdell V. Parsons, 10 East, 359; Squier v. Hunt, 3 Price, 68; 
 Hochster v. De La Tour, 2 El. & HI. 678 ; Amory v. Broderick, 5 Barn. & 
 Aid. 712. 
 
 3 Phillips V. Taylor, 49 N. T. S. C. 318; Hill v. Blake, 48 N. T. S. C. 
 253; Brown v. Bowen, 30 N. Y. 541; Underwoods. Farmers', &c., Ins. 
 Co., 67 N. T. 306. See Davis v. Budd, 60 Iowa, 144; Hill v. Blake, 97N. 
 Y- 216. 
 
 '< Churchill ■». Merchants' Bank, 19 Pick. 532; Eeg. v. Chawton, 1 Q. 
 B. 247; Webb v. Fairmanner, 3 M. & W. 473; Hart v. Middleton, 2 C. & 
 K. 9. See, also, Long v. Gale, 1 Manle & S. Ill; Matter of Swonford, 6 
 Maule & S. 226; McMurchey ». Robinson, 10 Ohio, 496; Thomas v. Shoe- 
 maker, 6 Watts & S. 179. At common law, lunar months were presumed 
 to have been intended, unless the contrary intention was shown. 2 
 Bouvier's Law Diet. 195; Kives v. Guthrie, 1 Jones (N. 0.) 87; Benja- 
 min Sales, §684. 
 
 ^ Brown v. Johnson, 19 M. & W. 331; Cochran v. Retberg, 3 Esp. 121. 
 See, also, Helplenstrue v. Vincennes Nat. Bank, 65 Ind. 589; People v. 
 Hatch, 33 111. 137; Pulling v. People, 8 Barb. 385; Haines v. State, 7 Tex. 
 App. 33; WooUeyi;. Clements, 11 Ala. 229. 
 144 
 
CH, VIII. J DELIVERY. § 99 
 
 excluded, and the last day included, so that delivery will 
 be good, if made at any reasonable hour on the last day 
 named. 1 But where the limit of time for performance is 
 stated to be "until" or "up to," a certain date, or 
 " between " certain dates, the last day is excluded, as well 
 as the first.^ Where the word of limitation is "to" a 
 certain date, it is doubtful whether the last day is included 
 or excluded, the result varying with the facts of each case.' 
 So, also, is " on " doubtful.* " On or before " a certain 
 day gives the vendor the whole of the day named in which 
 to make delivery.^ 
 
 If the last day in the computation of the time of per- 
 formance is a Sunday or other legal holiday, the delivery 
 must be made on the next succeeding day. This is cer- 
 tainly true where the day of delivery is described as 
 occurring a certain time after a given date.* But whether 
 this rule would apply where the time of performance is de- 
 scribed as " between " two dates, both dates being excluded, 
 so that, if the day preceding the last date is a legal holi- 
 day, the last date will be included among the days of per- 
 formance, does not appear to be settled by any of the au- 
 thorities. 
 
 1 Webb V. rairmanor, 3 M. & "W. 473. 
 
 ^ See Cleveland v. Sterritt, 70 Pa. St. 204 ; Coniwingo Petroleum Co, 
 V. Cunningham, 75 Pa. St. 138; People v. Walker, 17 N. Y. 502; Hough- 
 wort b. Boisaubin, 18 N.J. Eq. 315; Farwell i). Rogers, 4 Cush. 460; 
 Pease B. Norton, 6 Greenl. 229; Atkins v. Boylston, &c., Ins. Co., 5 Met. 
 440; Newby v. Rogers, 40In(l. 9. 
 
 3 See Coniwingo Co. v. Cunningham, 75 Pa. St. 138. 
 
 * Cocldington v. Paleologo, L. R. 2 Ex. 193. In that case, the con- 
 tract provided for " delivering on April 17th, complete 8th of May;" the 
 court divided on the question whether the seller had to begin delivery 
 ou the 17th of April. See, also, Beigham v. Blaenavon Iron Co., L. R. 
 lOQ. B. 319. 
 
 5 Adams v. Dale, 29 Ind. 273. 
 
 * See Avery v. Stewart, 2 Conn. 69; Sands v. Lyon, 18 Conn. 18; 
 Staples ». Franklin Bank, 1 Met. 43; Kuntz v. Tompel, 48 Mo. 75: Colms 
 V. Bank, 4 Baxt. 422; Salter v. Burt, 20 Wend. 205; Barrett v. Allen, 10 
 Ohio, 426. 
 
 10 145 
 
§ loo DELIVERY. [CH. VIII. 
 
 It depends upon the circumstances of each case, at what 
 hour of the appointed day must the delivery be made, in 
 order to be reasonable. 
 
 It has been held that the delivery may be made at 
 any hour before midnight, provided sufficient time be 
 given before midnight, in which to make an examina- 
 tion of the goods.^ But the ordinary customs of the 
 business world would require that the delivery to mer- 
 chants should be made during business hours, unless the 
 buyer is actually found after business hours at his place of 
 business; and in any event, the delivery should be made 
 before the time of retiring; and where the goods cannot be 
 examined and assorted, except by daylight, the delivery . 
 should be made before sunset.^ 
 
 § 100. Reasonable time — Forthwith — As soon as pos- 
 sible. — When no time is fixed for delivery, the law pre- 
 sumes that the parties intend it to be made within a rea- 
 sonable time. What is a reasonable time depends upon the 
 facts of each case, varying with the circumstances to an 
 unlimited extent.* And parol evidence is admissible to 
 show what the parties thought about the time of perform- 
 ance.* 
 
 1 Startup V. McDonald, 6 Man. & G. 593. 
 
 2 Crowlnger v. Crocker, 61 N. Y. 151 ; McClartey v. Gokey, 31 Iowa, 
 505; Bassu. White, 65 N. Y. 565; Kirkpatrick ». Alexander, 60 Ind. 95. 
 See Berry v. Noll, 54 Ala. 446. 
 
 2 See Hlggins v. Delaware, &c., E. E. Co., 553 ; Kellam v. McKinstray, 
 69 N. y. 264; Brlghty v. Norton, 3 B. & S. 805; 32 L. J. Q. B. 38; Bolton 
 V. Eiddle, 35 Mich. 1; Goodwin v. Crevely, 4 Hurl. &. N. 633; Toms v. 
 Wilson, 4 B. & S. 442; 32 L. Q. B. 33, 382; Graham v. Van Dieman's 
 Land Co., 30 Eng. L. & Eq. 579; Jackson v. Saunders, 1 Schoales & L. 
 461; Eoberts v. Mazeppa Mill Co., 30 Minn. 413; Ellis©. Thompson, 3 
 Mees. & W. 445; Cocker v. Franklin, H. & F. Mfg. Co., 3 Sumn. 530. It 
 is a question for the jury. Eoberts v. Mazeppa Mill Co., supra; Coch- 
 ran V. Toker, 14 Minn. 293; Derosia v. Winona, &c., E. E. Co., 18 Minn. 
 119, 133; Pinney ». First Div., &c., E. R. Co., 19 Minn. 211, 251. 
 
 * See Cocker v. Franklin, H. & F. Mfg. Co., 3 M. & W. 445; s. c. 3 
 146 
 
CH. VIII. ] DELIVERY. § 101 
 
 The vendor still has a reasonable time, in which to make 
 delivery, where the contract provides for delivery " forth- 
 with " " immediately," " directly," " as soon as possible." 
 But the employment of these expressions indicates an in- 
 tention to hasten the delivery, and hence less delay is per- 
 missible in such cases, than where the law implies a reason- 
 able time for performance, in the absence of all stipulations 
 whatever.^ But the attending facts may vary this conclu- 
 sion somewhat, as where the delivery was to be "forth- 
 with," but the stipulation for payment within fourteen days 
 was held to show an intention that the goods should be 
 delivered within the fourteen days.^ 
 
 § 101, Quantity to be delivered — Effect of partial 
 delivery. — Where the contract calls for the delivery of a 
 given quantity of unspecified goods, the contract cannot be 
 performed, except by the delivery of the exact quantity 
 which the buyer had bargained for. And the buyer may 
 reject the goods entirely, if the vendor should deliver more 
 of the goods than were ordered,^ or should add to those 
 
 Sumn. 530; Coates «. Sangston, 5 Md. 121; Ford v. Cotesworth, L. E. 7 
 Q. B. 127. But It is not possible to sliow by parol evidence that the 
 parties had agreed upon a time of delivery. 
 
 1 " Directly," Duncan v. Topham, L. C. B. 225; " Forthwith," Stan- 
 ton V. "Wood, 16 Q. B. 638; Roberts v. Brett, U H. Cas. 337 ; 34 L. J. C. 
 P. 241; "Immediately," Kommell ». Wingate, 103 Mass. 327; Isaacs i;. 
 Plaster Works, 67 N. Y. 124; Neldon v. Smith, 36 N. J. L. 148; "As 
 soon as possible," Hydraulic Engineering Co. v. McHaffie, L. E. 4 Q. B. 
 D. 670; 20 Eug. Eep. 102; Poper v. Filley, 3 McCrary, 190; Ehodes w. 
 Cleveland Eolling Mill Co., 17 Fed. Eep. 426. But it has been held that 
 " as soon as possible " had reference to the number of orders ahead, 
 and to the actual ability of the seller to make the delivery. See Atwood 
 V. Emery, 1 C. B. (n. s.) 110. 
 
 2 Stainton v. Wood, 16 Q. B. 638. 
 
 ' Dixon V. Fletcher, 3 M. & W. 146; Renter v. Sala, 4 C. P. D. 239, C. 
 A.; HarttJ. Mills, 15 M. &W. 85; Cunliffeu. Harrison, 6 Ex. 903; Nichol- 
 son V. Bradfleld Union, L. E. 1 Q. B. 620; 35 L. J. Q. B. 176; Eommellji. 
 Wingate, 103 Mass. 327; Chandler v. De Graff, 27 Minn. 208; Iron Cliffs 
 Co. V. Buhl, 24 Mich. 86; Croninger v. Crocker, 02 N. Y. 151. 
 
 147 
 
§ 101 DELIVERY. [CH. VIII, 
 
 ordered others of «, different kind.^ In such cases the buyer 
 is under no obligation to receive the whole package, and 
 select and separate the goods which he had bought from 
 those which had not been ordered. He could reject the 
 entire package.^ 
 
 Nor can the contract be performed by the delivery of a 
 smaller quantity than what was ordered. If the vendor 
 fails to deliver the right quantity within the time agreed 
 upon the vendee may return what he has received, if any, 
 and refuse to accept a part performance of the contract.^ 
 But if he accepts and retains the part which has been de- 
 livered, he must pay for that part,* all hough the buyer does 
 not thereby become liable for the residue M'hich is delivered 
 after the lapse of a reasonable time. He may accept and 
 pay for the part which had been delivered in due season, 
 and reject the residue, which had not been seasonably de- 
 livered.^ But until the time of delivery has completely 
 
 1 Levy V. Green, 8 E. & B. 575 ; 27 L. J. Q. B. Ill ; in Ex. C. H. 28 L. 
 J. Q. B. 318; Tarling v. O'Riordan, 2 Ir. L. E. 82, C. A. 
 
 ^ In Cualiffe v. Harrison, 6 Ex. 903, where the purchase fras of ten 
 hogshead of claret, and the vendor had sent fifteen, the performance of 
 the contract was held defective, " for the person to whom they are sent 
 cannot tell which are the ten that are to be his, and it is no answer to 
 the objection to say that he may choose which ten he likes, for that 
 would be to force a new contract upon him," Parke, B. See also, to 
 same effect, the cases cited in the preceding notes. 
 
 = Oxendale v. 'Wetherell, 9 B. & C. 38C; Bowes u. Shand, 2 App. Cas. 
 455; Senter v. Sala, 4 C. P. T). 239, 244, C. A.; Hoare v. Rennie, 5 H. & 
 N. 19; 29 L. J. Ex. 73; Haines v. Tucker, 50 N. H. 307; Morgan v. Gath, 
 3 Hurl. & C. 748; Waddington v. Oliver, 2 Bos. & P. N, R. 61; Wright 
 V. Barnes, 14 Conn. 518; Marland v. Stanwood, 101 Mass. 470; Smiths. 
 Lewis, 40 Ind. 98; Rockford, &c., R. R. Co. u. Lent, 63 HI. 288. 
 
 4 Oxendale v. Wetherell, 9 B. & C, 386 ; Haines a. Tucker, 50 N. H. 
 307; Morgan v. Gath, 3 H. & C. 748; 34 L. J. Ex. 165; Avery ». Wilson, 
 81 N. Y. 341 (37 Am. Rep. 503). But see apparently contra McMillan v. 
 Venderlip, 12 Johns. 167; Champlin v. Rowley, 13 Wend. 260; Meade. 
 DeGolyar, 16 Wend. 636; Kein v. Tupper, 52 N. Y. 555; Reed ». Randall, 
 29 N. Y. 358 (86 Am. Dec. 305, 31 1). 
 
 « See Wilson v. Wagar, 26 Mich. 462. 
 148 
 
CH. VIII.] DKLIVEKY. § 102 
 
 elapsed, the buyer cannot he required to make his election 
 to pay for the part delivered or to return it.^ 
 
 § 102. Effect of words of indefinite estimate — More 
 or less — About — Say about. — Very often the contract 
 calls for the sale of a given quantity " more or less," or 
 " about "or " say about " a given quantity; and the courts 
 are called upon to determine the effect of these words of 
 indefinite estimate. Where the contract is for the sale of 
 specific goods, and the description identifies the goods to 
 be sold, any reference to the quantity in these uncertain 
 terms is to be taken as a matter of abundant description, 
 requiring only good faith in the estimate, and does not 
 operate as a warranty. Any divergence of the actual 
 quantity from this indefinite estimate, which is consistent 
 with good faith, will not make the performance of the con- 
 tract defective.^ But if the contract be a sale of unspecified 
 goods, the estimate of quantity becomes essential; and if 
 it be given at k certain amount, qualified by any of these 
 words of indefinite estimate, the courts will construe these 
 words as serving to protect the vendor from liability for 
 slight and unimportant variations in quantity from the 
 given estimate. They do not protect the vendor from lia- 
 
 1 Waddington v. Oliver, 2 B. & P. N. R. 61; 1 Corayn Dig. Action F. 2; 
 Oxendale v. Wetherell, 9 B. & C. 386; Haines v. Tucker, 50 N. H. 307. 
 See Catlin v. Tobias, 26 N. Y. 217 (84 Am. Dec. 183). 
 
 2 Brawley v. United States, 96 U. S. 168; McLay v. Perry, 44 L. T. (s. 
 s.) 152. In the last case there was a sale of a heap of scrap-irou by one 
 who was not a regular dealer in such go ids. The estimate as to quantity 
 was 150 tons, while the heap turned out to contain only 44 tons. The 
 contract was construed to be a sale of that particular heap and not of 
 150 tons of iron more or less. See, also, McConnell v. Murphy, L. R. 5 
 C. C. 203, where the sale was of " all of the spars manufactured by A. 
 say about 600, averaging 16 inches; the above spars will be out of the 
 lot manufactured by I. B.," and a tender of 496 spars was held to be a 
 substantial performance of the contract. See, also, Leeming v. Snaitli, 
 16 Q. B. 275; Hayward v. Scougall, 2 Camp. 56; Barker v. Windle, 6 E. 
 & B. 675. 
 
 149 
 
§ 103 DELIViSRY. [CH. VIII. 
 
 bility for material and important excesses and deficiencies 
 in number or quantity.^ But what is to be deemed an im- 
 portant and material variation depends upon the facts of 
 each case, no general rule being at hand, whereby to deter- 
 mine it.^ 
 
 It has been held that these words of indefinite estimate 
 will be implied, wherever it is the commercial usage to in- 
 sert them, as a protection to the vendor against accidental 
 variations in quantity.^ 
 
 § 103. Delivery by Installments. — The contract may 
 call for delivery of the goods in installments, and in that 
 case all the installments must be delivered within the stipu- 
 lated time ; and if there be no specially stipulated time, 
 then within a reasonable time.* If the vendor should fail 
 
 1 "More or less," Cross v. Eglln, 2 B. & Ad. 106; Cockerell v. Au- 
 compte, 2 C. B. (sr. s.) 440 (26 L. J. C. P. 194) ; Holland v. Kea, 48 Mich. 
 218; Day v. Cross, 59 Tex. 695, 604; Creighton v. Comstock, 27 Ohio St. 
 648. "Abont," Bourne v. Seymour, 16 C. B. 337; Moore v. Campbell, 
 10 Ex. 323; 23 L. J. Ex. 310; Pembroke Iron Co. v. Parsons, 5 Gray, 
 589; Clapp v. Thayer, 112 Mass. 296. " Say about," McConnell v. 
 Murphy, L. R. 6 P. C. 203; Morris v. Levison, 1 C. P. D. 155; Gwillim 
 V. Daniell, 2 C. M. & K. 65; 5 Tyr. 644; Leeming v. Snaith, 16 Q. B. 276; 
 Barker v. Wlndle, 6 E. & B. 675; Hayward v. Scougall, 2 Camp. 56; Shep- 
 ard V. Lynch, 20 Kan. 377 ; Tamvaco v. Lucas, 1 El. & E. 581. " Average 
 weight," Cash v. Hinkle, 36 Iowa, 623. 
 
 2 See Brawley v. United States, 96 U. S. 168, 171; Robinson v. Noble, 
 8 Pet. 181. In Cross v. Eglin, 2 B. & Ad. 106 (sale of 300 quarters of 
 rye, and 60 quarters of wheat, deliver 345 quarters of rye and 91 of 
 wheat) ; Cockerell v. Ancompte, 2 C. B. (n. s.) 440; 26 L. J. C. P. 194 
 (coatract for 100 tons of coal, delivered, 127 tons) ; Morris v. Levison, 
 1 C. P. D. 155 (contract for " a full and complete cargo of iron ore, 
 say about 1,100 tons." Delivered 1,080 tons, whereas capacity of ship 
 was 1,210 tons), the courts held the variation to be material. 
 
 3 Moore v. Campbell, 10 Ex. 323; 23 L. J. Ex. 310. 
 
 •* See, generally, Mersey Steel, &c., Co. v. Naylor, L. R. 9 App. Cas. 
 434; Houck v. MuUer, L. R. 7 Q. B. D. 92; Johnson v. Allen, 78 Ala. 
 387 (66 Am. Rep. 34) ; Blackburn v. Reilly, 47 N. J. L. 290 (54 Am. Rep. 
 159) ; Gill V. Benjamin, 64 Wis. 362 (54 Am. Rep. 619) ; Norrington «. 
 Wright, 115 TJ. S. 188. See, also, as to the effect of modifications of 
 terms of the contract on the obligation to deliver within a reasonable 
 150 
 
CH. VIII.] DELIVEKY. § 104 
 
 to complete the delivery, after a delivery of one or more 
 of the installments, the buyer is not obliged to retain the 
 installments already delivered, but he may return them, 
 and thus relieve himself from all liability for the price. ^ 
 But this rule obtains only when there is but one entire con- 
 tract for the sale of goods, to be delivered in installments. 
 If the transaction consists of two or more severable con- 
 tracts, a failure to deliver under one contract has no effect 
 on the rights of the parties under another contract.^ 
 
 § 104. Form of delivery — Actual and constructive 
 delivery. — Where the sale is of unspecified goods, the 
 goods must first be prepared for delivery by a selection and 
 separation from the general mass.* But where the sale is 
 of specific goods, there is ordinarily nothing to do, by the 
 way of preparation for delivery. Still, whatever in the 
 matter of preparation is necessary, must, of course, in any 
 case, be done within the required time. The seller must, of 
 course, observe every requirement that the contract makes 
 of him in the matter of delivery and preparation, and in 
 the solution of all doubtful questions, a reasonable con- 
 struction is adopted.* And a well-established usage in 
 respect to the duties of the seller is generally permitted to 
 control the construction.* 
 
 time, Davis v. Budd, 60 Iowa, 144; Tyers v. Bosedale, &c., Iron Co., L. 
 R. 10 Ex. 195 ; Ireland v. Livingston, L. B. 6 H. L. 395 ; O'Neill v. James, 
 43 N. Y. 84 ; Hill v. Blake, 97 N. Y. 216 ; Bergheim v. Iron Co., L. R. 10 
 Q. B. 319; Neldon v. Smith, 36 N. J. L. 148. 
 
 1 See Klein v. Tupper, 52 N. Y. 550; Oxendale v. Wetherell, 9 B. & C. 
 386; Haines v. Tucker, 50 N. H. 307; Catlin v. Tobias, 26 N. Y. 217 
 (84 Am. Dec. 183). 
 
 2 See Verkamp v. Hubbard Co., 58 Cal. 229 (41 Am. Rep. 265) ; Cous- 
 tonti. Chapman, L. B. 2 H. L. S. App. 250. 
 
 3 See ante, § 88. 
 
 * Robinson v. United States, 13 Wall. 363; Metz v. Albrecht, 52 III. 
 491. 
 
 * Robinson v. United States, 13 Wall. 363, where a usage was proven 
 to deliver grain in sacks, where the parties had not stipulated differently. 
 
 151 
 
§ 104 DELIVERY. [CH. VIII. 
 
 Where a place of delivery is mentioned in the contract, 
 unless there is an express agreement to the contrary, the 
 seller is to bear all the expenses attending the transporta- 
 tion to that place.^ 
 
 It has been already explained when the vendor is required 
 to make an actual delivery, in order to pass title. ^ The gen- 
 eral rule is that where he is not obliged to make this de- 
 livery, he fully performs the contract of sale when he has 
 the goods ready for the buyer in season, and takes reason- 
 able care of them, until the buyer comes and takes them 
 away.* But, where there has been no actual transfer of 
 possession, tlie action by the vendor is for goods bargained 
 and sold, and not for goods sold and delivered.* Wherever 
 there is a- manual or bodily transfer of possession, the de- 
 livery is called actual. And wherever that is possible, 
 while there may be a constructive delivery, sufficient to 
 
 See, also, to same effect. Cole v. Kew, 20 Vt. 21. But see Groat v. Gile, 
 51 N. Y. 431, where evidence was held to be inadmissible, in order to 
 prove a usage for the vendor of sheep to shear them before delivery, and 
 to appropriate the wool. 
 
 ' Playford?!. Mercer, 22 L. T. (n. s.) 41, where a cargo was sold, "from 
 the deck," audit was held that the seller should pay everything neces- 
 sary to enable the buyer to remove the cargo from the deck. 
 
 2 See ante, § 84. 
 
 3 Bissell V. Balcom, 39 N. Y. 275; Wade v. Moffit, 21 111. 110 (74 Am. 
 Dec. 79); Kohl v. Lindley, 39 111. 193; Damon v. Osborn, 1 Pick. 476; 
 Coon V. Spaulding, 47 Mich. 162; Morse v. Sherman, 106 Mass. 430; 
 Frazier v. Simmons, 139 Mass. 531. 
 
 * Sterns ti. Washburn, 7 Gray, 187; Turners. Langdon, 112 Mass. 265; 
 Allingham v. O'Mahoney, 1 Pugs. 326; Morse v. Sherman, 106 Mass. 
 430; Frazier v. Simmons, 139 Mass. 531; Hart v. Tyler, 15 Pick. 171; 
 Bementi;. Smith, 15 Wend. 493; Messer v. Woodman, 22 N. H. 173; At- 
 wood V. Lucas, 53 Me. 508; Specers v. Harvey, 7 R. I. 582; Warden v. 
 Marshall, 99 Mass. 806. But see Ross o. Welch, 11 Gray, 286; Stern v. 
 Filene, 14 Allen, 9; Hart v. Summers, 38 Mich. 399, where the distinc- 
 tion between the action for goods sold and delivered and that for goods 
 bargained and sold, were not so strictly observed. It need not be more 
 than stated, that these distinctions disappear altogether under all the 
 American codes of procedure, which were patterned after the New York 
 Code. 
 
 152 
 
CH. VIII. j DELIVEUY. § 104 
 
 pass title between the parties, notliing but actual delivery 
 will be suflBcieiit to maise an effective transfer as to third 
 parties.^ But where, for any reason, actual delivery be- 
 comes impossible, the law will imply a delivery, if the in- 
 tention of the parties to transfer title and possession be 
 manifest. This is called constructive delivery. Thus, 
 whenever the goods are already in the possession of the 
 vendee, any formal delivery becomes impossible, and the 
 transfer of title takes effect in consequence of the agree- 
 ment and understanding that the relation of the party hav- 
 ing possession has been changed from that of bailee to tliat 
 of vendee and absolute owner. If any delivery can be 
 predicated of such a transaction at all, it would be a con- 
 structive or implied delivery.^ 
 
 So, also, where the purpose of the parties is that the 
 vendor shall retain possession of the goods after the sale, 
 in the capacity of a bailee of some sort, the agreement 
 for the vendor to retain possession of the goods sold makes 
 an actual delivery impossible, and the law implies a delivery 
 from a change in the character of the vendor's possession.^ 
 
 ^ Delivery of a bill of sale, Burge v. Cone, 6 Allen, 412; Dempsey v. 
 Gardner, 127 Mass. 381 (34 Am. Kep. 388) ; Carter v. Willard, 19 Pick. 1 
 Packard v. Wood, 4 Gray, 307; Veazie v. Somerby, 5 Allen, 280; BuUard 
 ». Wait, 16 Gray, 55; Ingalls «. Herrick, 108 Mass. 351; Dugan u. Nichols 
 125 Mass. 43; Hardy v. Potter, 10 Gray, 89; Thorndike ■«. Bath, 114 Mass 
 116 (19 Am. Rep. 318); Chapman v. Searle, 3 Pick. 38; Rourke n. Bui- 
 lens, 8 Gray, 549; Shumway v. Rutter, 7 Pick. 56, 59 (19 Am. Dec. 340) 
 Solomons v. Chesley, 58 N. H. 238. 
 
 2 Shurtlefe u. Willard, 19 Pick. 210; Lake v. Morris, 30 Conn 201 
 Nicliols V. Patten, 18 Me. 231; Warden v. Marshall, 99 Mass. 305; Stowe 
 V. Taft, 58 N. H. 444; Griffin v. Wright, 1 Tex. App. (Civ. Cas.), § 638. 
 The same rule obtains in sales from one tenant in common to another in 
 possession of the goods. See Beaumont v. Crane, 14 Mass. 400; Kitt- 
 redge v. Summer, 11 Pick. 50; Macomber v. Parker, 13 Pick. 175; Gush- 
 ing V. Breed, 14 Allen, 376. 
 
 3 Shumway «. Rutter, 8 Pick. 447; Stinson ?7. Clark, 6 Allen, 340; 
 Mount Hope Iron Co. v. Buffinton, 103 Mass. 62; Bates v. Conklin, 10 
 Wend. 390; Ropes v. Lane, 11 Alien, 591 ; Hobbs v. Carr, 127 Mass. 532; 
 Cartwight u. Phcenix, 7 Cal. 281; Thorndike v. Bath, 114 Mass. 116; 
 
 153 
 
§ 104 DELIVERY. [CH. VIII. 
 
 So, also, where the goods are at the time of sale in the 
 possession of a warehouseman, the title and possession passes 
 without actual delivery, on giving notice to the bailee of the 
 change of ownership^ — so, likewise where the goods are be- 
 yond the reach of the vendor, thus rendering an actual delivery 
 impossible, as where a vessel and cargo are at sea; ^ where 
 delivery is impossible, because the goods are of ponderous 
 weight,^ or because they are growing crops, and must re- 
 main in the soil until they are ripe for harvest.* A grow- 
 
 Ingalls V. Herrick, 108 Mass. 351; Hardy ». Potter, 10 Gray, 89; Webster 
 ■V. Anderson, 42 Mich. 554 (36 Am. Rep. 452) ; Pratt v, Maynard, 116 Mass. 
 388; Means v. Williamson, 37 Me. 556; Barrett v. Goddard, 3 Mason, 
 107; Merrill v. Parker, 24 Me. 89. As to the effect of retention of actual 
 possession on the rights of attaching creditors, see ante, § 40a, and post, 
 2106. 
 
 1 Salter v. WooUams, 2 M. & G. 650; Smith v. Chance, 2 B. & Aid. 753; 
 Wood V. Manley, 11 A. & E.34; Bentall v. Burns, 3 B. &C. 423; Tux- 
 worth V. Moore, 9 Pick. 347; Carter v. Willard, 19 Pick. 1; Stow D.Taft, 
 58 N. H. 445; Campbell v. Hamilton, 63 Iowa, 293. Whether it is neces- 
 sary for the bailee to consent to keep the goods for the buyer has been 
 decided both in the affirmative and negative. That it is not necessary, 
 see Carter v. Willard, supra; Bailey ». Quint, 22 Vt. 474; Pettingill o. 
 Elkins, 50 Vt. 431. See, also. Potter v. Washburn, 13 Vt. 558; Montgom- 
 ery V. Hunt, 5 Cal. 366; Hatch v. Bayley, 12 Gush. 27; Hatch ». Lincoln, 
 12 Cush. 31. See, also, apparently contra. Gill v. Frank, 12 Oreg. 607. 
 
 2 But, in the case of the sale of a vessel or of its cargo at sea, actual 
 possession must be taken of them as soon as they arrive in port, or 
 within a reasonable time thereafter. Bellam v. Tucker, 1 Pick. 389; Joy 
 Sears, 9 Pick. 4; Brinley v. Spring, 7 Greenl. 241, Turner v. Coolidge, 2 
 Met. 350; Meeker v. Wilson, 1 Gall. 419; Dawes v. Cope, 4 Binn. 258; 
 Conard v. Atlantic Ins. Co., 1 Pet. 386; Putnam v. Dutch, 8 Mass. 287. 
 
 3 Jewett v. Warren, 12 Mass. 300; Van Brunt v. Pike, 4 Gill, 270; 
 Hayden v. Demets, 53 N. Y. 426 ; Buffer v. United States, 15 Ct. of CI. 
 291; Bethel Steam Mill Co. ■!). Brown, 57 Me. 9; Toguini o. Kyles, 17 
 Nev. 209 (45 Am. Eep. 442) ; Thompson v. Bait. & Ohio R. E., 28 Md. 396 ; 
 Leonard J7. Davis, 1 Black, 476; Kingley v. White, 57 Vt. 665. 
 
 • Graff V. Fitch, 58 111. 373; Thompson v. Wilhite, 81 111. 367; Tick- 
 nor V. McClelland, 84 111. 471 ; Bellows v. Wells, 36 Vt. 600. On the 
 ground that the products of the soil cannot become the subject of a sale 
 of personalty until they have ceased to be real property by a severance 
 from the soil, the courts have distinguished somewhat between the 
 fructus naturales, and the fructus industriales, holding more strictly in the 
 154 
 
CH. VIII.J DELIVERY. § 105 
 
 ing crop could not be delivered unless the land was also 
 transferred ; and the transaction would then become a sale 
 of real property, instead of being a sale of personalty. ^ 
 
 § 105. Symbolical delivery, — being one species of con- 
 structive delivery, differs from the other kinds, in that it is 
 a delivery of one thing as the representative of, and in lieu 
 of, another, which latter is the subject of the sale, and is 
 therefore to be transferred. The title to the goods, as 
 well as the possession of them, will pass by means of the 
 symbolical delivery. While the transfer of a symbol is not 
 necessary in those cases, where constructive delivery is per- 
 mitted on account of the impracticability of an actual 
 delivery,^ yet the symbolical delivery may be and is gen- 
 erally used in such cases, because it affords more positive 
 evidence of a transfer of possession than what is given in 
 the other forms of constructive delivery. Thus, the fol- 
 lowing are recognized by the law as effective symbolical 
 deliveries : the bill of sale of a vessel and cargo, at sea, 
 and in all other cases of impracticable delivery ; ^ the bill 
 
 former cases that there must at least be a severance, before title and 
 possession can pass, unless the land itself was conveyed. Stone v. Pea- 
 cock, 35 Me. 386; Yale v. Seely, 13 Vt. 221; Lamson v. Patch, 5 Allen, 
 586. See ante, § 59, and also Tiedeman on Keal Property, § 799. See 
 also Davis ». McFarlane, 37 Cal. 638; Bobbins v. Oldham, 1 Duvall (Ky.), 
 28; Cummins ». Griggs, 2 Duvall (Ky.), 87; 6 Bush, 335. 
 
 1 See Noble v. Smith, 2 Johns. 56; Smith v. Chapney, 50 Iowa, 174; 
 Branton v. Griffiths, 2 C. P. D. 212. See, also, ante, § 59; Tiedeman on 
 Real Prop., § 799. 
 
 2 See ante, § 104. 
 
 ' Gardner v. Howland, 2 Pick. 602; Atkinson v. Mailing, 2 T. R. 43; 
 Portland Bank v. Stacey, 4 Mass. 661 ; Putnam v. Dutch, 8 Mass. 287. 
 Property in possession of a bailee, Keil v. Harris, 6 Atl. Eep. ; 
 Goods of ponderous weight, Jewitt v. Warren, 12 Mass. 300, Leonard v. 
 Davis, 1 Black. 476. But where the actually possession is transferred, 
 the bill of sale is useless, except as written evidence of the con- 
 tract of sale. Gatzweiler ». Morgner, 51 Mo. 37; 2 Schoulcr Personal 
 Prop., § 392. And whenever the bill of sale is delivered with intention 
 of pa.-ising title, it will have that efCect, as between the parties to the con- 
 
 155 
 
§ 106 DELIVERY. [CH. VIII. 
 
 of lading for goods in course of ti-ansportation ; ^ the 
 warehouse receipts, delivery orders, dock-warrants, or other 
 acknowledgment by a bailee of an obligation to deliver 
 goods, which had been consigned to his care, upon the 
 order or indorsement of the depositor ; ^ the key of the 
 warehouse, in which the goods were stored.^ A delivery 
 or tender of any one of these documents of title may be a 
 good defense to an action for non-delivery of the goods 
 sold.* 
 
 § 106. What delivery is sufficient as ag^alnst creditors 
 and subsequent purcliasers. — It has been already ex- 
 
 ti-act. Philbrook v. Eaton, 134 Mass. 398; Parson v. Dickinson, H Pick. 
 352 ; Packard v. Wool, 4 Gray, 307. But see Harlow v. Hall, 132 Mass. 
 232, as to effect on innocent purcliasers. 
 
 1 First Nat. Bank v. McAndrews, 5 Mont. 328 (51 Am. Rep. 51); Allen 
 V. Jones, 24 Fed. Rep. 11; Gibson v. Stevens, 8 How. 384; Davis v. Rus- 
 sell, 52 Cal. 611 (28 Am. Rep. 647); Russell?;. O'Brien, 127 Mass. 340; 
 Prickett i;. Read, 31 Ark. 131; King?;. Jarman, 35 Ark. 190; Pratt v. 
 Parkman, 24 Pick. 42; Bufflngton v. Curtis, 15 Mass. 528; Peters v. Bal- 
 listier, 8 Pick. 495; Conard v. Atlantic Ins. Co., 1 Pet. 386; Quintard v. 
 B:icon, 99 Mass. 185. 
 
 2 Chaplin v. Rogers, 1 East, 192; Harman v. Anderson, 2 Camp. 243; 
 Atkinson v. Maling, 2 T. R. 462; Manton v. Moore, 7 T. R. 67; Pleas- 
 ants U.Pendleton, 6 Randolph, 473; Van Blunt v. Pike, 4 Gill, 270; 
 Chapman v. Searle, 3 Pick. 38; Tuxworth v. Moore, 9 Pick. 347, 349; 
 Pratt V. Parkman, 24 Pick. 46, 47; Horrc. Barker, 8 Cal. 609; Glasgow v. 
 Nicholson, 25 Mo. 29; Mitchell?;. McLean, 7 Fla. 329; Whitaker v. 
 Sumner, 20 Pick. 405; Adams v. Foley, 4 Iowa, 44; Gill v. Frank, 
 12 Oreg. 507; Bentall?). Burn, 3 B. & C. 423; HoUingsworth v. Napier, 3 
 Caines, 182; Wilkes?;. Ferris, 5 Johns. 336. The consent of the bailee to 
 the transfer or at least notice to him, has been held to be essential to 
 make the transfer of the receipt a sufficient delivery. See Gill v. Frank, 
 12 Oreg. 507; Hallegarten v. Oldliara, 135 Mass. 1. Also, ante, §§ 
 7, 104. 
 
 3 Packard ?>. Dunsmore, 11 Gush. 282; Vining v. Gilbreth, 39 Me. 496; 
 Chappel ?!. Marvin, 2 Aikens, 79; Wilkes v. Ferris, 5 Johns. 335. 
 
 ^ Salter v. Woodlams, 2 Man. & G. 650; Wood ?;. Mauley, 11 Ad. & E. 
 34; Davis ?;. Jones, 3 Houst. 68; Gibson ?;. Stevens, 8 How. 399; McKee 
 V. Garcelon, 60 Me. 167 (11 Am. Rep. 200) ; Russell v. Carrington, 42 N. 
 Y. 118 (1 Am. Rep. 498) ; Hayden v. Deraets, 53 N. Y. 426. 
 156 
 
CH. VIII.J DELIVERy. § 106 
 
 plained ^ that delivery is essential to a transfer of the title 
 of goods sold, as against creditors and subsequent pur- 
 chasers, and that the retention of possession is at. least 
 prima facie, if not conclusive, evidence of fraud, sufficient 
 to avoid the sale in favor of the attaching creditor or subse- 
 quent purchaser. But this rule of law is never enforced in 
 so narrow a spirit as to require the parties to the contract to 
 do an impossible thing, and hence the question, whether 
 there has been a sufficient delivery as against creditors and 
 subsequent purchasers, must be considered and answered 
 in the light of the particular facts of each case. Where, 
 of course, the retention of possession by the vendor is held 
 to be only prima facie evidence of fraud, proof of good 
 faith readily removes the difficulty; but in any case the 
 title is generally held to vest absolutely in the vendee, 
 wherever constructive or symbolical delivery is heid to be 
 a sufficient substitute for an actual manual transfer of pos- 
 session.^ Thus, actual delivery is not required as against 
 creditors, where the goods are for any reason not sus- 
 ceptible of a manual transfer of possession. The con- 
 structive possession which the law implies in such cases, 
 is held to be sufficient.^ So, also, where goods are in the 
 possession of a bailee.* But in that case notice to third 
 
 ' See ante, § 84a. 
 
 2 See ante, §§ 104, 105. 
 
 5 "Growing crops," Robblns v. Oldham, 1 Duv. 29; CTiminings v. 
 Griggs, 2 Duv. 87; Morton i>. Ragan, 5Busli,335; "Ponderous articles," 
 BroadweUv. Howard, 77111.305; Jewett «. Warren, 12 Mass. 300; Davis 
 V. Ransom, 18 111. 396; Wrights. Grover, 27 111. 426; Hart «. Wing, 44 
 111. 141 ; Simmons v. Jenkins, 76 111. 479 ; Webster ». Granger, 78 111. 230; 
 Lefever v. Mires, 81 111. 456; Johnson v. HoUoway, 82 111. 334; Ticknor 
 V. McClelland, 84 111. 471 ; Allen v. Carr, 85 111. 388 ; Goodheart v. John- 
 Son, 88 111. 58; Richardson ». Rardin, 88 111. 124; Dunlap ». Eppler, 88 
 111. 82; Greenebaum v. Wheeler, 90 111. 296; Dunning v. Mead, 90 111. 
 376; Rozier v. Williams, 92 111. 187; Clow «. Woods, 5 S. & R. 275; 
 Kingsley v. White, 57 Vt. 565. 
 
 * Linton 1!. Butz, 7 Pa. St. 89; Worman v. Cramer, 78 Pa. St. 378; 
 Woods V. Hull, 81 Pa. St. 451. 
 
 L57 
 
§ 106 DELIVEEY. [CH. VIII. 
 
 persons in possession of property is essential to perfect 
 the sale.^ 
 
 It is not necessary to repeat the enumeration of the cases 
 in which the constructive and symbolical deliveries may be 
 taken as substitutes of actual delivery. It will be suffi- 
 cient to refer the reader to the preceding paragraphs .^ 
 Most of the illustrations, which are given there, of con- 
 structive and symbolical deliveries, are applicable in the 
 determination of their effect on the rights of creditors and 
 subsequent purchasers, as well as to the question of full 
 performance of the contract. In the case of creditors, the 
 transfer is required to be more notorious. 
 
 The most important, as well as most doubtful, question in 
 this connection, is whether there is a sufficient constructive 
 delivery to avoid the presumption of fraud on creditors, where 
 the veddor retains possession of the goods as bailee of the 
 vendee. Where the statutes expressly require an actual and 
 continued change of possession, it would be very doubtful, 
 except in the plainest and most notorious cases, whether 
 there was a sufficient delivery. The authorities are not 
 uniform, some holding that there would be a sufficient de- 
 livery under those facts, and this would seem to be the cor- 
 rect, as well as the more reasonable, rule.' On the other 
 hand, there are some authorities which hold that there is 
 not a sufficient delivery, where the vendor retains possession 
 
 1 Tuxworth V. Willard, 9 Pick. 347; Carter v. Willard, 19 Pick. 1; 
 Hardy v. Potter, 10 Gray, 89 ; Whitney v. Lynch, 16 Vt. 579. 
 
 2 See ante, §§ 104, 105. 
 
 ' Hobbs V. Carr, 27 Mass. 532; Phelps v. Cutler, 4 Gray, 137; Green 
 V. Eowland, 16 Gray, 58; Stinson v. Clark, 6 Allen, 840; Gushing!;. 
 Breed, 14 Allen, 376; Ingalls v. Herrick, 108 Mass. 351; Kussell «. 
 O'Brien, 127 Mass. 349; Goodheart v. Johnson, 88 111. 58; Smith o. Cris- 
 man, 91 Pa. St. 428; Steele «. Miller, 1 Atl. Bep. (Pa.) 434; Campbell 
 II. Hamilton, 63 Iowa, 393; Williams » Lerch, 56 Cal. 330; Montgomery 
 w. Hunt, 5 Cal. 366 (cattle left in charge of vendor's agent as bailee of 
 the buyer) ; Walden v. Murdock, 23 Cal. 533 (where cattle were branded 
 by the buyer) ; Evans v. Scott, 89 Pa. St. 136 (carpet bought but left 
 in the same place to be used by buyer jointly with vendor.) 
 
 158 
 
CH. Vlli.J DELIVERY. § 107 
 
 as bailee of the buyer. * But where the retention of 
 possession by the vendor is accompanied by distinct and 
 notorious acts of ownership on the part of the buyer, as 
 where the goods are kept in the same place, but the sign is 
 changed.^ So, also the branding of cattle,^ and the nail- 
 ing up holes in a corn-crib.* On the other hand, there is 
 not a sufficient possession, where the old sign is retained 
 over the door of the shop.^ 
 
 In very many cases, the facts have been held sufficiently 
 doubtful, whether there has been a sufficient change of pos- 
 session to make the sale valid against creditors and subsequent 
 purchasers, in order to submit the question to the jury.® 
 
 § 107. Second delivery permissible, when first is de- 
 fective. — If the first attempt at delivery proves unsuccess- 
 ful, a second delivery may be made, and it will be just as 
 , effective as if it had been done right in the first instance, 
 provided the time of performance had not yet expired.' 
 
 1 Euddle V. Glvens (Cal.), 18 Pac. Eep. 421; Betz v. Franz, Pa. St. 
 (13 Atl. Eep. 940); noted in 27 Cent. L. J. 19; Oro, etc., Co. v. Starr 
 (Cal.), 8 Pac. Eep. 242; Stevens v. Irwin, 15 Cal. 503; Bassinger v. 
 Spoulger, 9 Col. 175. 
 
 2 Cook V. Mann, 6 Col. 21. 
 
 3 VValden v. Murdock, 23 Cal. 633. 
 * Pope V. Cheney, 68 Iowa, 563. 
 
 " Brown v. Kimmel, 67 Mo. 430; Woods v. Bugbey, 29 Cal. 466; Law- 
 rence V. Burnham, 4 Nev. 361; Hull v. Sigsworth, 48 Conn. 258; Claflin 
 V. Eosenberg, 42 Mo. 449; Perrin». Beed, 36 Vt. 2; Piercer. Chlpman, 
 8 Vt. 337. 
 
 » EafEerty v. McKenna (Pa. St.) 1 Atl. Eep. 546 (stenciling vendee's 
 name on sides of cars) ; Wolf v. Kahn, 62 Miss. 814 (business carried on 
 in same name); Parker v. Muwell, 60 N. H. 30 (wagon left in seller's 
 possession) ; Ziegler v. Hendrick, 106 Pa. St. 57 (horse, etc., kept in 
 barn of seller's house) ; Brown v. Kimmel, 67 Mo. 430 ; Evans v. Scott, 89 
 Pa, St. 136 (leaving carpets in brother's house) ; Eoss v. Sedgwick, 69 
 Cal. 247 (brother's control of furniture in lodging-house) ; O'Gara v. 
 Lowry, 5 Mont. 427 (brother driving team which he had sold) ; Leavitt v. 
 Jones, 54 Vt. 423 (41 Am. Eep. 849) (sale by husband to wife) ; McClure 
 V. Tomey, 107 Pa. St. 414 (sale by father to daughter). 
 
 ' Borrowman v. Free, 4 Q. B. D. 500, C. A. 
 
 159 
 
§ 109 DELIVERY. [CH. Vlll. 
 
 § 108. Rescission of sale, — rights of vendee's credit- 
 ors. — If the parties to a sale, which has been once com- 
 pleted by a delivery, a^ree to rescind the sale, as much 
 formality will be required to revest the title in the vendor, 
 iis against the vendee's creditors, as was necessary to trans- 
 fer the title to the vendee.^. But there will be a sufficient 
 constructive re-delivery, if after the rescission of the sale, 
 the buyer retains the goods solely for the purpose of mak- 
 ing repairs for the vendor.^ 
 
 § 109. Delivery incomplete without acceptance. — De- 
 livery and acceptance, are concurrent acts, one supplement- 
 ary to the other, so that there cannot be a full perform- 
 ance of a contract of sale, until the goods sold had been 
 both delivered and accepted. Acceptance constitutes the 
 subject of the next chapter. 
 
 ' Quincy v. Tilton, 5 Me. 277; State of Maine ». Intoxicating Liquors, 
 61 Me. 520; Gleason ?). Drew, 9 Me. 81. 
 
 2 Beecher v. Mayall, 16 Gray, 376. See also Parks v. Hall, 2 Pick, 
 206. 
 
 160 
 
CHAPTEE IX. 
 
 ACCEPTANCE. 
 
 Section 112. Acceptance and delivery concurrent acts — Effect of want 
 of acceptance. 
 
 113. When buyer obliged to accept — Buyer's duties in accept- 
 
 ance of the goods. 
 
 114. Receipt and acceptance distinguished — Eight of inspec- 
 
 tion of goods. 
 116. What constitutes acceptance — Right of inspection and 
 rejection of goods. 
 
 116. Acceptance, where delivery is by installments. 
 
 117. Acceptance final — Right of rejection barred by acceptance. 
 
 112. Acceptance and delivery concurrent acts — 
 Effect of want of acceptance. — It is generally stated that 
 acceptance and delivery are concurrent acts; and this is 
 true so far that delivery without acceptance, actual or pre- 
 sumed, does not transfer an absolute title to the goods. 
 And until acceptance of the good's, the buyer is at liberty 
 to take exception to the quality, character or quantity of 
 the goods delivered and reject them on that account. But 
 proof of acceptance is not necessary for the transfer of the 
 title, and in order to throw the risk of loss on the buyer. 
 The vendor may recover for " goods sold and delivered," 
 as well as for " goods bargained and sold " without prov- 
 ing any actual acceptance.^ 
 
 § 113. When buyer obliged to accept — Buyer's duties 
 in acceptance of the goods. ■ — Since acceptance and de- 
 livery are concurrent and supplemental acts, the buyer is 
 
 ' Nichols V. Morse, 100 Morse, 523 ; Barton v. McKelway, 22 N. J. L. 
 165. 
 
 U 161 
 
§ 113 Acceptance. fcH. ix. 
 
 required to accept the goods, when Ihe seller has done 
 every thing that can be required of him as preliminary to 
 an acceptance. If the seller is required only to make the 
 goods ready for delivery, and the buyer is to come or send 
 for them, it is a part of the buyer's duty of acceptance to 
 take the goods away from the seller's warehouse or 
 place of business. The vendor, in such cases, need not in 
 his action for the price aver or prove any thing more than 
 that he was ready and willing to deliver the goods on pay- 
 ment of the price. ^ But the vendor must notify the buyer 
 thiit the goods are ready for delivery before the buyer can 
 be said to be ill fault. ^ When, however, he has been noti- 
 fied, the buyer must remove the goods, and if he fails to 
 do so withiu a reasonable tirae,^ he becomes liable to the 
 seller for warehouse rent and other charges for the con- 
 tinued custody of the goods, and for any other damage 
 which the seller might have incurred in consequence of the 
 delay in the removal of the goods.* 
 
 But the buyer is not obliged to accept the goods, unless 
 they have been tendered to him exactly in accordance with 
 the terms of the contract. In other words, the require- 
 
 ' Jackson v. AUoway, 6 Man. & 6. 942; Lawrence v. Knowles, 5 Bing. 
 N. C. 399; Spotswood t;. Barrow, 1 Ex. 804; Baker ». Firmlnger, 28 L. 
 J. Ex. 130; Cortt;. Ambergate Ey. Co., 17 Q. B. 127; Medina v. Norman, 
 9 Mees. & W. 820; Boyd v. Lett, 1 Con. B. 222; Baffee v. United States, 
 15 Ct. of CI. 291; Nichols v. Morse, 100 Mass. 523; Wasliburu Iron Co. 
 ■0. Eussell, 130 Mass. 643; Wright t7. Weed, 6 Up. Can. Q. B. 140; Sup- 
 ple o. Gilmour, 6 Up. Can. C. P. 318; Sedgwick ». Cottingham, 54 Iowa, 
 512; Pacific Iron Works v. Long Island R. E. Co., 62 N. Y. 272. 
 
 2 Jones V. Gibbons, 8 Ex. 920. See Cameron v. Wells, 30 Vt. 633; 
 Edwards v. Hart, 66 111. 71. 
 
 3 What is a reasonable time is always a question for the jury under 
 all the circumstances of the case. Buddie v. Green, 3 Hurl. & N. 906 ; 
 27 L. J. Ex. 33. See also as to reasonable time, Howe v. Huntington, 
 15 Me. 350; Stange ». Wilson, 17 Mich. 342; Conn. lo. Spaulding, 47 
 Mich. 162; Bass. v. White, 63 N. T. 665; Pinney ». St. Paul B. R. Co., 
 19 Minn. 251. 
 
 * Greaves v. Ashlin, 3 Camp. 426; Bloxam ». Sanders, 4 Barr. & C. 
 941 ; Denman v. Cherokee Iron Co., 56 Ga. 319 
 1G2 
 
CH. IX. J ACCEPTANCE. § 114 
 
 ments of the law as to delivery, must be observed by the 
 seller, before the buyer is obliged to accept.^ If, for ex- 
 ample, the seller has failed to make the proper delivery, 
 either because he has made it at an unseasonable time of 
 the day 2 or he has failed to deliver the exact quantity of 
 goods delivered neither more nor less, nor mixed with 
 other goods,^ or he has delivered less than the required 
 quantity,* or has not delivered in the form, called for by 
 the contract of sale;^ in every such case, the buyer may 
 refuse to accept the goods, and relieve himself from all 
 liability by rejecting them, and notifying the vendor of 
 the rejection. The buyer is of course not obliged to accept 
 the goods, until he has had an opportunity to inspect and 
 examine them. But this brings us to the subject of an- 
 other paragraph. 
 
 § 114. Receipt and acceptance distinguished — Bight 
 of inspection of goods. — Receipt and acceptance are not 
 altogether identical, although the latter includes the former, 
 A receipt of the goods constitutes a mere taking of the 
 goods into one's actual or constructive possession.® But 
 acceptance includes, in addition to receipt, the intention to 
 retain them in performance of the contract of sale. If the 
 
 '■ For a full discussion of the requirements of the law in respect to 
 delivery, see chapter VIII. 
 
 2 Startup V. McDonald, 6 Man. & G. 593. 
 
 ^ The buyer is not obliged to eelect the goods he ordered from others 
 shipped in the same package without being ordered. Dixon v. F.etclier, 
 3 M. & W. 146; Hart v. Mills, 15 M. & W. 85; Levy v. Green, 8 El. & B. 
 575; 1 EI.&E. 969; 27 L. J. Q. B. HI; 28 L. J. Q. B. 319; Nicholsons. 
 Bradtield Union, L. R. 1 Q. B. 620; 35 L. J. Q. B. 176. 
 
 ■* Corrigan v. Slieffleld, 10 Hun, 227; Bruce v. Pearson, 3 Johns. 534; 
 Keiu V. Tupper, 52 N. Y. 553; Solomon v. Neidig, 1 Daly, 200. 
 
 ^ Makin v. London Rice Mills Co., 20 L. T. (N. s.) 705; Playford ». 
 Mercer, 22 L. T. (n. s.) 41 ; Cole v. Kew, 20 Vt. 21 ; Robinson «. United 
 States, 13 Wall. 363; Great v. Gile, 51 N. Y. 431. 
 
 " See ante, §§ 61-70 for a full discussion of what constitutes accept- 
 ance and receipt of goods, sufficieut to satisfy the requirement of the 
 Statute of Frauds. 
 
 163 
 
§ 115 ACCEPTANCE. [CH. IX. 
 
 vendee has, before receipt of the goods, had an opportunity 
 to inspect and examine them, and has declared his satis- 
 faction with them, receipt of the goods will include accept- 
 ance.i But wherp the vendee has not had an opportunity 
 to inspect and examine the goods, as for example where 
 they are sold by sample, there can be no acceptance in 
 full performance of the contract, resulting from the receipt 
 of the goods, until a reasonable time has elapsed after 
 delivery and receipt, in which to examine the goods and 
 accept or reject them.^ But the right of inspection of 
 goods, after receipt of them, may be limited or taken away 
 altogether by agreement of the parties or by commercial 
 custom.^ 
 
 § 115. What constitutes acceptance — Right of inspec- 
 tion and rejection of goods. — Since the acceptance is 
 itself an operation of the mind, it must be communicated 
 or manifested to others before it can become a legal fact. 
 Of course, these manifestations may be by word or deed.* 
 
 1 Cusack V. Robinson, 1 B. & S. 299; 30 L. J. Q. B. 261; Saunders v. 
 Topp, i Ex. 390; Bill v. Bament, 9 M. & W. 36 ;' Proctor v. Joaes, 2 C. & 
 P. 532; Boulter v. Amott, 1 C. & M. 384; Baldey v. Parker, 2 B. & C. 37; 
 Hodson V. LeBret, 1 Camp. 233. 
 
 2 Shields v. Eelbe, 9 Bradw. 598; Eew v. Lawrence, 27 Up. Can. C. P. 
 402; Corrigan ». Sheffield, 10 Hun, 227; Croninger v. Crocker, 62 N. T. 
 151; Pease v. Copp, 67 Barb. 132; RafCee v. United States, 15 Ct. of CI. 
 291; Lorymer v. Smith, 1 Barn. & C. 1; Coustor v. Chapman, L. R. 2 H. 
 L. S. 250; Doane v. Dunham, 79 111. 131. And this right of inspection 
 before acceptance, obtains in the case of the sale of specific goods, as in 
 that of non-specific goods. See Isherwood v. Whitmore, 10 M. & W. 757; 
 But see, apparently contra, Heyworth v. Hutchinson, L. R. 2 Q. B. 447; 
 36 L. J. Q. B. 270. 
 
 3 Pettittt). Mitchell, 4 M. &G. 819; Moherin ». Ball, Cal. ; 8 Pac. 
 Rep. 886. 
 
 * See, generally, Pease v. Copp, 67 Barb. 132; Wells v. Smith, 2 Out. 
 App. 8; Knoblauch ». Krouschnabel, 18 Minn. 300; Delamatei; «. Chap- 
 pell, 48 Md. 244; Waters Heater Co. v. Mansfield, 48 Vt. 378; Haynes v. 
 Sherrer, 2 Bradw. 536; Belt v. Stetson, 26 Minn. 411; Cox v. Jones, 24 
 Up. Can. Q. B. 81 ; Hamilton v. Myles, 24 Up. Can. C. P. 309 ; Gowing »■ 
 JKnowles, 118 Mass. 232; Shipman v. Graves, 41 Mich. 675; Pennell v. 
 164 
 
CH. IX.] ACCEPTANCE. § 115 
 
 An express declaration of the buyer, after an examination 
 of the goods, that he will take them is naturally the most 
 satisfactory form of acceptance. But in the cases, in which 
 the question as to the fact of acceptance is raised, there is 
 ordinarily no such explicit declaration, and the acceptance 
 is inferable only from the actions of the buyer, or from col- 
 lateral facts, which are inconsistent with the absence of an 
 intention to accept. This would be the case, wherever the 
 buyer has done anything with or concerning the goods, which 
 would involve the exercise of ownership over them, such as 
 an attempted resale of them,^ any change in the condition or 
 character of them,^ making use of them,^ and the like.* 
 And if his words conilict with his acts, as where the buyer 
 says at one time that he does not expect to keep the goods, 
 and then tries to sell them, his acts will outweigh his words 
 in determining the question whether there has been an ac- 
 ceptance.^ And in every such case, his words, as well as 
 his acts, must be considered together, the court giving ef- 
 fect to the preponderance of evidence.® 
 
 It is also strong evidence of an acceptance of the goods, 
 if the vendee retains them beyond a reasonable time, with- 
 
 McAfferty, 84 111. 364; Gorgonc. Waterous.SG U. Can. Q. B. 321; Tread- 
 well V. Reynolds, 39 Conn. 31. 
 
 ^ Chaplin v. Rogers, 1 East, 195; Blenkinsop v. Clayton, 7 Taunt. 597; 
 Parker v. Palmer, 4 B. & Aid. 387; Llllywhlte v. Devereux, 15 M. & W. 
 285; Baines v. Jevons, 7 C. & P. 288; HUIb. McDonald, 17 Wis. 97; Mar- 
 shall «. Ferguson, 23 Cal. 65; Eobinson «. Gordon, 23 Up. Can. Q. B. 
 143; Delamateri). Chappell, 43 Md. 244; Phillips v. Ocmulsee Mills, 55 
 Ga. 633. 
 
 2 Parker w. Wallls, 6 E. & B. 21. See Maberly v. Sheppard, 10 Bing. 99. 
 
 ^ Beaumont v. Brengen, 6 C. B. 301. 
 
 " Erie, J. : " If the vendee does any act to the goods, of wrong if lib 
 is not owner of the goods, and of right if he is the owner of the goods the 
 doing of that is evidence that he has accepted them." Parker o. Wallis, 
 5 E. &B. 21. See, also, to the same effect, Gray v. Davis, 10 N. Y. 285; 
 Tower v. Tudhope, 37 Up. Can. Q. B. 200; Dollard v. Botts, 6 Allen (N. 
 B.) 443; Pinkham v. Mattox, 53 N. H. 606. 
 
 s Chapman v. Morton, 11 M. & W. 534. 
 
 ^ 2 Schouler' Personal Prop., § 407. 
 
 165 
 
§ 115 ACCEPTANCE. [CH. IX. 
 
 out notifying the seller of his rejection of them. Unless 
 he notifies the seller of his rejection within a reasonable 
 time after delivery of the goods to him, the buyer is pre- 
 sumed to have accepted them.^ 
 
 What is a reasonable time is a question of fact to be de- 
 termined under all the facts of the case. Ordinarily, the 
 buyer must give the seller a prompt and explicit notice of 
 his rejection, and delay in doing so is only excusable when 
 he is prevented by some overpowering obstacle ^ or the 
 seller has by agreement waived the right to a prompt notice, 
 as where he agrees to call for a notice of the buyer's de- 
 cision.^ But the buyer need not give the seller any very 
 formal notice. Any notice, which is reasonable under the 
 circumstances of the case, will be sufficient, it matters not 
 how informal it may be. Parol notice is sufficient.* 
 
 The acceptance may be conditional upon the perform- 
 ance of some act by tiie seller, as where the seller is to 
 make some change in the goods sold, before the buyer is 
 willing to talie them.^ 
 
 But the buyer must have good grounds for rejecting; 
 the goods, in order that he may be relieved from liability 
 for non-acceptance. He cannot reject the goods, if they 
 suit the purpose for which they were ordered, and cor- 
 respond in every particular to the terms of the con- 
 tract.* In such cases, the wrongfulness of his attempt to 
 
 1 Bianchi v. Nash, 1 M. & W. 545; Beverley v. Lincoln Gas Light Co., 
 6 A. & E. 829; Couston v. Chapman, L. R. 2 Sc. App. 250; Treadwell v. 
 Reynolds, 39 Conn. 31; Hirshhorn v. Stewart, 49 Iowa, 48; Boughton ». 
 StancUsh, 48 Vt. 594; Doane v. Dunham, 79 III. 131; Greenthal v. 
 Schneider, 52 How. Pr. 133 ; Neaffle v. Hart, 4 Lans. 4 ; Walkins v. Paine, 
 57 Ga. 50; Pease v. Copp, 67 Barb. 132; Stafford!). Pooler, 67 Barb. 143; 
 Reedu. Randall, 29 N. Y. 358; Henkel v. Welsh, 41 Mich. P65. 
 
 2 Couston V. Chapman, L. R. 2 H. L. S. 250; Dutchers Co. v. Harding, 
 49 N. Y. 321. 
 
 3 Suit V. Bonnell, 33 Wis. 180. See Kahn v. Klabunde, 50 Wis. 236. 
 * Grimoldby v. Wells, L. R. 10 Com. P. 391. 
 
 s Belt V. Stetson, 26 Minn. 411. 
 
 6 See Boughton v. Standish, 48 Vt. 594 ; Knoblauch v. Kronschnabel, 
 166 
 
CH. IX. J ACCEPTANCE. § 116 
 
 return the goods is apparent. But when the parties have 
 stipulated for the sale of something, provided on examina- 
 tion or trial it proves satisfactory to the buyer, without 
 any specification of the qualities the thing must have in 
 order to be satisfactory, it is difficult to determine when the 
 buyer has exceeded his right of rejection, since the only 
 limitation on his right of rejection in such cases is good 
 faith in its exercise.' 
 
 § 116. Acceptance where delivery by installments. — 
 
 Where the delivery is, according to the terms of the con- 
 tract, to be by installments, a delivery of a part of the 
 goods, and a retention of them, after the lapse of a reason- 
 able time, in which to make an examination and to reject 
 them, if unsatisfactory, will preclude the buyer from a re- 
 jection of that part, on account of any defect in quality 
 or suitableness to the purposes for which it was bought.'' 
 But the buyer will not be precluded, by his acceptance of 
 one part of inferior goods, from rejecting any other part 
 which was delivered subsequently.* But if the seller fails 
 in the end to deliver the full amount of goods called for 
 by the contract, since the buyer is not obliged to receive 
 less than the whole amount, he may return the goods 
 already received, for his acceptance of them was condi- 
 tional upon his subsequent receipt of the entire amount.* 
 
 18 Minn. 300; Simpson v. Krumdick, 28 Minn. 362; Doane c. Dunham, 
 79 111. 131. 
 
 1 See Baltimore and Ohio R. K. Co. v. Brydon, 3 Atl. Kep. 306 (Md.) ; 
 Lynn B. Baltimore & Ohio R. R. Co., 60 Md. 404; Mansileld Machine 
 Works V. Village of Lowell, 29 N. W. Rep. (Mich.) 105; Cole v. Homer, 
 53 Mich. 438. 
 
 2 See Haines v. Tucker, 50 N. H. 307- Avery v. Wilson, 81 N. Y. 341, 
 (37 Am. Rep. 503). 
 
 s Cahan v. Piatt, 69 N. Y. 348 (25 Am. Rep. 203) ; Kipp v. Meyer, 5 
 Hun, HI; Hubbard v. George, 49 HI. 275. 
 
 * Oxendale v. Wetherell, 9 Barn. & C. 386 ; Bowes v. Shand, L. R. 2 
 App. C. 455; Renter v. Sala, L. R. 4 C. P. D. 239; Marland v. Stanwood, 
 101 Mass. 470, 
 
 167 
 
§ 117 ACCEPTANCE. [CH. IX. 
 
 On the other hand, if the buyer wrongfully rejects a 
 part of the goods, the seller is held to be excused from any 
 future deliveries under the contract.^ 
 
 § 117. Acceptance final — Right of rejection barred 
 by acceptance. — When there has once been an acceptance 
 by the buyer, his right of rejection is gone. He cannot 
 change his mind, and insist on a return of the goods. ^ His 
 acceptance precludes him from afterward claiming in his 
 defense that the goods were inferior in quality or quantity, 
 as agreed by the parties,^ unless he can show that the 
 transaction is tainted with fraud, or that it rests upon a war- 
 ranty as to quality and quantity.* 
 
 But the buyer is not obliged to exercise his right of re- 
 jection before he receives the goods; and his failure to do 
 so before delivery, in reply to the seller's expression of 
 doubt that the goods will come up to the terms of the con- 
 tract, will not prevent him from afterwards objecting to 
 them.® 
 
 Where the exercise of the right of rejection is based 
 upon the existence of a fact or circumstance, which is dis- 
 coverable, if at all, on or before a receipt of the goods, 
 the right of rejection must be exercised at the time of de- 
 livery. If the buyer receives the goods under these cir- 
 cumstances he waives his right of rejection ; as, for 
 example, where the delivery is tendered after the expira- 
 tion of the agreed time of delivery.® 
 
 » Hughes V. United States, 4 Ct. of CI. 64. 
 
 " See Carondelet Iron Works v. Moore, 78 111. 65, 69. 
 
 3 McCormick v. Sarson, 45 N. Y. 265 ; Gilspn v. Bingham, 43 Vt. 410 ; 
 Thompson v. Libby, 29 N. W. Kep. (Minn.) 150; Haase v. Nounemacher, 
 21 Minn. 486; Gaylord Mfg. Co. v. Allen, 53 N. Y. 515; Locke ». Will- 
 iamson, 40 Wis. 377; Olson v. Mayer, 56 Wis. 551. 
 
 * See the chapters on Fraud and Warranty. 
 
 « Dowell V. Williams, 33 Kan. 319. 
 
 « Baker v. Henderson, 24 Wis. 509; Bock v. Healy, 8 Daly, 156; 
 Adams v. Helen, 55 Mo. 408. 
 168 
 
CHAPTER X. 
 
 VENDOR'S LIEN. 
 
 Section 119. Definition and general explanation. 
 
 120. How waived — Sale on credit — Receipt of security. 
 
 121. Lien how lost — Tender of price — Delivery of goods. 
 
 122. What delivery su£9cient to destroy lien. 
 
 123. Statutory liens. 
 
 § 119. Deflnition and general explanation. — A lien 
 may be defined as " a right of retaining property until a 
 debt due to the person retaining it has been satisfied."^ 
 And the general rule is that, unless it is waived, the vendor 
 of personal property has a lien on the goods while in his 
 possession for the price. ^ But in order that the vendor of 
 goods may claim a lien on the goods, they must have al- 
 ready become the property of the vendee ; for one cannot 
 have a lien on goods belonging to himself. Hence, as long 
 as the title has not been transferred, as where the sale is of 
 goods not specific, and they have not yet been selected and 
 prepared for delivery ; ^ or where the sale is of specific 
 
 ' Benjamin on Sales, § 796. See, also, Hammonds v. Barclay, 2 East, 
 235. 
 
 ' Miles V. Gorton, 2 C. & M. 504; Clark v. Draper, 19 N. H. 419; Parks 
 V. Hall, 2 Pick. 211; Arnold v. Delano, 4 Cush. 33 (50 Am. Dec. 754); 
 Nevins v. Schofleld, 2 Pugs-. & Bur. (N. B.) 435; Bowen ■/. Burk, 13 Pa. 
 St. 146; Safford ». McDonough, 120 Mass. 291; Ware River R. K. Co. v. 
 Vibbard, 114 Mass. 447; Carlisle v. Kinney, 66 Barb. 36.S; Cornwall v. 
 Haight, 8 Barb. 328; Bradley v. Michael, 1 Ind. 651. See, also, Barrett 
 V. Pritchard, 2 Pick. 512; Haskins v. Warren, 115 Mass. 514, 533; White 
 V. Welsh, 38 Pa. St. 396, 420; Griffiths v. Perry, 1 El. & E. 680; Dodsley 
 V. Varley, 12 Ad. & B. 632, 634; Milliken v. Warren, 57 Me. 46, 50. And 
 see Beam v. Blanton, 3 Ired. Eq. 59, 62. 
 
 3 See ante, § 88. 
 
 169 
 
§ 120 vendok's lien. [ch. x. 
 
 goods, but conditional, the vendor cannot be said to have a 
 lien (in the goods sold.' The only cases in which the vendor 
 can have a lien on the goods, are those in which the title to 
 the goods passes to the vendee without delivery of the 
 possession.^ The lien is not permitted to secure the pay- 
 ment of any thing more than the price. If the vendor has 
 any other claim against the vendee, arising out of the same 
 transaction, as for storage during the time that the goods 
 are detained by the vendor in the exercise of the lien, the 
 lien will not cover it.^ 
 
 § 120. How waived. — sale on credit — receipt of se- 
 curity. — The vendor's lien may of course be waived by 
 express agreement. Any agreement which is inconsistent 
 with the retention of the lien operates as a waiver of it.* 
 But it may also be waived by implication. For example, 
 the lien is waived, when the goods are' sold on credit by 
 open agreement,^ or by taking a time note in payment of 
 the price.® In such cases, the vendee can insist upon a 
 delivery of the goods to him before payment of the price.' 
 
 ' See ante, § 87. 
 
 2 See ante, §§ 84, 85. 
 
 3 Somes V. British Empire Shipping Co., 1 E. B. & B. 353; 27 L. J. 
 Q. B. 397; Ex. Ch., E. B. & E. 367; 28 L. J. Q. B. 220; 8 H. L. C. 338; 30 
 L. J. Q. B. 221; Crommelin v. N. Y. & Harlem R. R. Co., i Keyes, 90. 
 
 * Pickett u. Bullock, 52 N. H. 354. 
 
 5 SpartaliB. Benecke, 10 C. B. 212; 19 L. J. C. P. 293; Ford B.Yates, 
 2 M. & G. 549; Lockett v. Nicklin, 2 Ex. 3; Greaves v. Ashlin, 3 Camp. 
 426; Chase v. Westmore, 5 M. & S. 180; Crawshay v. Homfray, 4 B. & 
 Aid. 50; Cowell v. Simpson, 16 Ves. Jr. 275; Arnold v. Delano, 4 Cush. 
 33; Leonard v. Davis, 1 Black. 476; McNail v. Ziegler, 68 111. 224; 
 Thompson v. Wedge, 50 Wis. 642. 
 
 6 Arnold v. Delano, 4 Cush. 41 ; Milliken v. Warren, 67 Me. 46 ; Clark 
 V. Di-apen, 19 N. H. 419; Creanoru. Creanor, 36 Ark. 91; Jeckellc. Fried, 
 18 La. An. 192; Chapman u. Soarle, 3 Pick. 38, 45 (receipted bill of par- 
 cels) ; Johnson v. Dickinson, 78 N. Y. 42. The same rule applies also 
 Where the price is settled for by the transfer of a third person's note. 
 Benedict v. Field, 16 N. Y. 595; 
 
 ' See cases cited in preceding notes. 
 170 
 
CH. X.J vendor's likn. § 120 
 
 But if the vendor should retain possession until the time 
 of payment had arrived, the right to a lien would revive, 
 and the vendor could insist upon payment before delivery 
 of the goods where there is a simple agreement for credit.^ 
 This is likewise the case, where the price is settled for by 
 the execution of a promissory note or bill of exchange for 
 the amount as long as the note or bill has not been nego- 
 tiated.^ The lien is also waived by implication, when 
 the vendor receives some other security for the payment of 
 the price. ^ Biit the waiver of the lien, on account of the 
 agreement for credit or for collateral security, is only a 
 disputable presumption of law, which may be rebutted by 
 evidence of an intention of the parties to retain the lien 
 and withhold possession from the vendee until payment 
 has been made. And parol evidence is admissible for the 
 purpose of proving this contrary intention.* 
 
 ^ 1 Owens o. Weedman, 82 111. 409; Milliken v. Warren, 57 Me. 46; Ke 
 Batchelder, 2 Low. 245; Grice v. Richardson, L. E. 3 App. Gas. 319; 
 Thompson v. Baltimore, &c., E. E. Co., 28 Md. 396; White v. Welsh, 38 
 Pa. St. 396, 420; Hunter v. Talbot, 3 Smed. & M. 754; Parker v. Byrnes, 1 
 Low. 539; New v. Swain, 1 Dans. & L. 123; Bumiey v. Poyntz, 4 B. & 
 Ad. 568; Parks v. Hall, 2 Pick. 206, 211; Southwest Freight Co. v. 
 Stanard, 44 Mo. 71, 84. 
 
 2 Arnold v. Delano, 4 Cush. 41 ; Clark v. Draper, 19 N. H. 419 ; Milli- 
 ken V. Warren, 57 Me. 46; Creanor ». Creanor, 36 Ark. 91; Johnson v. 
 Dickinson, 78 N. Y. 72; Jeckell v. Fried, 18 La. An. 192; Gunu ,;. 
 Bolckow, L. R. 10 Ch. App. 491, 501; Dixon v. Yates, 5 Barn. & Adol. 
 313, 341; Homcastle v. Parran, 3 Barn. & Aid. 497; Hewison v. Guthrie, 
 2 Bing. N. C. 755. 
 
 3 Benedict v. Field, 16 N. Y. 595 (note of third person) ; Chambers v. 
 Davidson, L. E. 1 P. C. 296; 4 Moo. P. 0. C. N. S. 158: " Lien is not 
 the result of an express contract; it is given by implication of law. If, 
 therefore, a mercantile transaction which might involve a lien is created 
 by a written contract, and security given for the result of the dealings in 
 that relation, the express stipulation and agreement of the part es for 
 security exclude lien, and limit their rights by the extent of the express 
 contract that they have made." 
 
 * Field V. Lelean, 6 H. & N. 617; 30 L. J. Ex. 168; 1 Smith Lead Cas. 
 594, notes to Wigglesworth v, Dallison. 
 
 • 171 
 
§ 121 VENDOU'S LIISN. [CH. X. 
 
 § 121. liien how lost — Tender of price — Delivery 
 of goods. — The object of the vendor's hen is simply to 
 secure the payment of the price; and if the vendee is wih- 
 ing to pay the price in full, the vendor cannot refuse pay- 
 ment and still hold on to the lien for some other purpose. 
 While a mere tender of payment does not liquidate the 
 indebtedness, it does destroy all rights to liens and securi- 
 ties, which were given or exist for the purpose of securing 
 payment. A tender of payment of the price, therefore, 
 releases the goods from the lieii.^ While in equity, in sup- 
 port of equitable claims, a lien may exist, independent of 
 possession of the goods, at common law the lien is insepar- 
 able from the possession of the goods, and any actual 
 transfer of possession in the performance of the contract 
 of sale will operate to destroy the lien of the vendor, since 
 the vendor's lien for the price is a common law, and not an 
 equitable lien.^ But the parties to the contract may, by 
 express agreement, provide for the retention of the lien on 
 the goods, notwithstanding there has been a delivery.' 
 And it seems that parol evidence is admissible to establish 
 this agreement.* But since the common law lien is insepar- 
 able from the possession of the goods by the vendor, the 
 lien that exists and attaches to the goods, in favor of the 
 
 ' Martindale v. Smith, 1 Q. B. 389. See Dempsey v. Carson, 11 Up. 
 Can. Q. B. 462. 
 
 2 Haskins v. Warren, 115 Mass. 515; Freeman v. Nichols, 116 Mass. 
 309; Blackshear v. Burke, 74 Ala. 239; Thompson v. Wedge, 50 Wis. 
 642; McNail «. .Ziegler, 68 111. 224; Obermler v. Core, 25 Ark. 562; 
 Johnson v. Farnum, 56 Ga. 144; Gay v. Hardeman, 31 Tex. 245; Parks v. 
 Hall, 2 Pick. 306, 212; Jenkins v. Eichelberger, 4 Watts, 121; James ». 
 Bird's Adm'r, 8 Leigh, 510; Lupin v. Marie, 6 Wend. 77; Welsh v. Bell, 
 32 Pa. St. 12, 17; Boyd v. Moseley, 2 Swan, 661; Barnett ». Mason, 7 
 Ark. 263. 
 
 ' Gregory v. Morris, 96 U. S. 619; Bunn v. Valley Lumber Co., 51 
 Wis. 376; Sawyer v. Fisher, 32 Me. 28; Dunning ». Stearns, 9 Barb. 630; 
 Bradeen v. Brooks, 22 Me. 453, 471. 
 
 * See Gay v. Hardeman, 31 Texas, 245, 250; Burnham v. Marshall, 56 
 Vt. 365. 
 
 172 
 
CH. X.J Vendor's LiEisr. § 122 
 
 vendor, after the vendee has taken possession of the goods, 
 must be either an equitable, or statutory, hen. In the 
 absence of a statutory provision, this lien could not be en- 
 forced against any subsequent purchaser from the buyer. 
 But in many of the States, the statutes do provide for the 
 enforcement of such a lien against subsequent purchasers, 
 whenever the lien is created or evidenced by an instrument 
 in writing and recorded like mortgages and deeds of con- 
 veyance.^ 
 
 § 122. What delivery suflleieiit to destroy lien. — But 
 
 in order that the delivery of possession may be sufficient 
 to destroy the vendor's lien for the price, it must be made 
 in pursuance, and in execution, of the contract of sale. If 
 the possession has been given to the buyer for some other 
 purpose than to execute the contract of sale, as where the 
 seller agrees that the buyer is to have possession as bailee, 
 ■pending the further performance of the contract, the ven- 
 dor's lien still exists, for the vendor has not parted with the 
 possession of an absolute owner. ^ 
 
 So, also, there is no loss of the lien, if the vendor has 
 not yet actually parted with the possession, although they 
 have been boxed and mailed with the buyer's name, or 
 otherwise prepared for delivery to him.^ 
 
 But if every thing is done which is necessary to place the 
 goods under the control of the buyer, the most informal 
 or constructive delivery is sufficient to destroy the lien. 
 
 ' See Bughee v. Stevens, 33 Vt. 389; Barker v. Richardson, 57 Vt. 
 308; Bunn v. Valley Lumber Co., 51 Wis. 576; Loeb v. Blum, 25 La. An. 
 232; Naylor v. Young, 7 Lea. 735; McClenney v. McClenney, 3 Tex. 192, 
 197. 
 
 2 Tempest ». Fitzgerald, 3 B, & A. 680; Marvin v. Wallace, 6 E. & B. 
 726; 25 L. J. Q. B. 3G9; Reeves v. Capper, 5 Bing. N. C. 136. 
 
 ^ Goodall V. Skelton, 2 H. Bl. 316; Simmons?;, Swift, 5 B. &C. 857; 
 Proctor V. Jones, 2 C. &P. 532; Dixon v. Yates, 5 B. & Ad. 313; Town- 
 ley V. Crump, 4 A. & E. 58; Boulter «. Arnott, 1 C, &M. 333; Arnold??. 
 Delano, 4 Cush. 33; Thompson v, Baltimore, &c., R. R, Co., 28 Md. 396. 
 
 173 
 
§ 122 Vfii^DOft's LifeM. [cH. X. 
 
 Thus, the exercise by the buyer of the general authority of 
 an owner over the goods, when thej"- are lying at a public 
 wharf or warehouse, is sufficient proof of a delivery to de- 
 stroy the lien.^ 
 
 The delivery may also be constructive, as when the goods 
 are delivered to a common carrier for transportation to the 
 buyer. The delivery to the common carrier destroys the 
 vendor's lien, although the right of stoppage in transitu 
 survives,^ unless a bill of lading is issued by the common 
 carrier in which the vendor appears as the consignee. In 
 such a case, there is no constructive delivery to the buyer 
 and hence the lien of the vendor is not affected by the de- 
 livery of the goods to the common carrier. 
 
 Where, however, the vendor has taken out a bill of lad- 
 ing in his own name, he may thereafter make a delivery of 
 the goods to the vendee, sufficient to destroy the vendor's 
 lien, by transferring by indorsement the bill of lading.^ 
 
 Whether the transfer of other documents of title, such as 
 delivery orders, warehouse and elevator receipts, will con- 
 stitute a sufficient delivery of the goods themselves, — where 
 they are iii the hands of a bailee — in order to destroy the 
 vendor's lien, depends in the main upon the presence or ab- 
 sence of statutory regulations. Generally, it is not a suffi- 
 
 1 Tansley u. Turuer, 2 Bing. N. C. 151; Cooper v. Bill, 3 H. & C. 722; 
 34 L. J. Ex. 161. 
 
 ' Boyd V. Moseley, 2 Swan, 661; Dawes v. Peck, 8 T. K. 330; Warte 
 V. Baker, 2 Ex. 1; Frajano v. Long, 4 B. & C. 219; Johnson v. Dodgson, 
 2 M. & W. 653; Meredith u. Meighs, 2 E. &B. 364; 22 L. J. Q. B. 401; 
 Hart V. Bush, E. B. & E. 494; 27 L. J. Q. B. 271; Smith v. Hudson, 6 B. 
 & S. 431; Cusack v. Robinson, 1 B. & S. 299; 30 L. J. Q. B. 261; Norman 
 V. Phillips, 14 M. & W. 277; Dunlop v. Lambert, 2 M. & W. 653. See 
 ante, § 95. 
 
 3 The transfer of the bill of lading under such circumstances termln- 
 "<tes the right of stoppage in transitu as well. Newhall v. Cen. Pac. R. 
 Ct. Co., oi ^al. 345; Lee B.Kimball, 45 Me. 172; Clementson v. Grand 
 Trunk Ry. Co., 42 Up. Can. Q. B. 273; Leash v. Scott, 2 Q. B. Div. 376. 
 See post, § 134, for a fuller discussion of this question in relation to the 
 right of stoppage in transitu. 
 174 
 
oil. X.] VENDOR* S LIElf. § 12b 
 
 cient delivery, where the statutes of the State have not 
 given to these orders and receipts the negotiable character 
 of bills of lading. 1 But in many of the States, these docu- 
 ments are held to operate as symbols of the property itself, 
 either at common law or by statute, and the transfer of 
 them will be sufficient to destroy the vendor's lien.'' 
 
 Although under peculiar circumstances, a delivery of a 
 part of the goods may so far operate as a symbolical deliv- 
 ery of the whole, so as to relieve all of the goods from the 
 burden of the lien, as where the partial delivery is accom- 
 panied by an agreement, which establishes an intention that 
 the bailee of the goods should attorn to the buyer ^ yet the 
 general rule is that a partial delivery only destroys the lien 
 so far as it applies to the part delivered, the lien still rest- 
 ing on the part of the goods which remains in the possession 
 of the vendor. And this is the unvarying rule, where the 
 goods are in the possession of the vendor, instead of a 
 bailee.* 
 
 § 123. Statutory liens. — In most of the States, if not in 
 all, it is provided that the seller of goods shall hold a lien 
 
 1 See Keeler v. Goodwin, 111 Mass. 490; Re Batchelder, 2 Low. 245; 
 Southwestern Treight, &c., Co., v. Stanard, 44 Mo. 71, 81. 
 
 2 Davis V. Eussell, 52 Cal. 611; Horru. Baker, 8 Cal. 613; Burton v. 
 Curyea, 40 111. 320; Cochran v. Ripy, 13 Bush, 495; Whitlock v. Hay, 58 
 N. Y. 484; Second Nat. Bank v. Walbridge, 19 Ohio St. 424; Allen v. 
 Maury, 66 Ala. 10; Merchants' Bank v. Hibbard, 48 Mich. 118. 
 
 3 Slubey v. Heyward, 2 H. Bl. 504; Hammond v. Anderson, 1 B. & P. 
 N. R. G9;. Tausley v. Turner, 2 Ring. N. C. 151. 
 
 " Dixon c. Yates, 5 B.& Ad.313; Betts«. Gibbons, 2 A.& E.73; Bunney 
 V. Coyntz, 4 B. & Ad. 568; Simmons v. Swift, 5 B. & C. 857; Miles v. Gor- 
 ton, 2 Cr. & M. 504; Grice v. Richardson, 3 App. Cas. 319; Tanner u. 
 Scovill, 14 M. & W. 28; Jones v. Jones, 8 M. & W. 431; Whitehead v. 
 Anderson, 9 M. & W. 618; Wentworth v. Outhwaite, 10 M. & W. 436; 
 Bolton V. Lancashire, &c., R. R. Co., L. R. 1 C. P. 431; 35 L. J. 0. P. 
 137; Payne v. Shedbolt, 1 Camp. 427; Moeller v. Young, 5 E. & B. 7; 24 
 L. J. Q. B. 217; 25 L. J. Q. B. 94. The seller's lien attaches to the part 
 undelivered lor the whole price, and not simply forthe part not delivered. 
 Buckley v. Furniss, 17 Wend. 504. 
 
 175 
 
§ 123 vendor's lien. [ch. X, 
 
 for the price over them, after delivery of possession to the 
 vendee. This is particularly the case with the lien for ma- 
 terials furnished in the construction of buildings and ships, 
 and in the fitting of the latter for a voyage. In respect to 
 the latter, a lien is given by the laws of adiniralty. But 
 these classes of liens are not customarily treated in connec- 
 tion with the general law of sales of personal property, and 
 I will content myself with merely referring to their exist- 
 ence, and directing the reader to works on admiralty and 
 liens, and to the statutes of the different States for a full 
 discussion of them. 
 176 
 
CHAPTEK XL 
 
 STOPPAGE IN TRANSITU. 
 
 Section 125. General statement and definition. 
 
 126. Who may exercise the right. 
 
 127. The conditions of exercise of the right. 
 
 128. The goods mnst be unpaid for — Effect of partial payment. 
 ^29. When does the transit begin. 
 
 130. When does the transit end. 
 
 131. Delivery at an intermediate point. 
 
 132. Delivery to agent at place of destination with provision 
 
 for further transportation. 
 
 133. Delivery by vendor to ship chartered by vendee — vendee 
 
 acting as the carrier. 
 
 134. Effect of resale of goods on right of stoppage in transitu. 
 
 135. Insolvency of the buyer. 
 
 136. Mode of exercising the right. 
 
 137. Effect of stoppage of goods on rights of carrier. 
 
 § 125. General statement and definition. — Stoppage 
 in transitu is the right to regain possession of goods, which 
 have been forwarded to the buyer on credit, and then to 
 hold the possession until the price is paid.^ It is some- 
 times said that the exercise of the right is nothing more 
 than the resumption of the vendor's lien; and this is cer- 
 tainly true, so far that there is no rescission of the contract 
 of sale.^ Therefore, the vendee or his duly authorized 
 assignee is afterwards entitled to the possession of the 
 goods, on payment of the price, although the goods may 
 
 ' See Atkins ». Colby, 20 N. H. 154, 155; Inslee v. Lane, 57. N. H. 454, 
 457; Hause i. Judson, 4 Dana, 7; O'Brien v. Norris, 16 Md. 122, 130; 
 Loeb V. Peters, 6? Ala. 243 (35 Am. Rep. 17). 
 
 2 Kowley D. Blgelow, 12 Pick. 312; Jordan?). James, 5 Ohio, 88; Kemp 
 V. Falk, 7 App. Cas. 673, 581 ; Patten's Appeal, 45 Pa. St. 151. 
 
 12 177 
 
§ 125 Stoppage in transittj. [ch. xt. 
 
 have risen greatly in value.* But the lien which arises, or 
 which is enforced, in consequence of the exercise of the 
 right of stoppage in transitu, is not exactly the vendor's 
 lien which he has and can enforce before delivery to the 
 carrier, whether the vendor is insolvent or not. For the 
 right of stoppage in transitu is not at all affected by the 
 fact that the goods have been sold on a credit, the time for 
 payment of which has not yet expired. The right may be 
 exercised, notwithstanding the price is not yet due.^ Nor 
 does the acceptance of time notes or bills, in settlement of 
 the price, interfere with the exercise of the right if it does 
 not amount to an absolute payment.^ The stoppage in 
 transitu is therefore to be distinguished from mutual agree- 
 ments to rescind the contract of sale, and to restore the 
 goods to the possession of the vendor, and to revest the 
 title in him.* 
 
 The stoppage in transitu is also not to be confounded 
 with the right of a debtor to countermand the delivery of 
 goods, which he had shipped to the creditor in payment or 
 satisfaction of the debt, as long as the creditor does not 
 know of, and assent to, the transaction. This has been 
 
 1 Newhall v. Vargas, 13 Me. 93; Kucker v. Donovan, 13 Kan. 251; 
 Bogers v. Thomas, 20 Conn. 53; Stanton v. Eagar, 10 Pick. 475; Rowley 
 V. Bigelow, 12 Pick. 313; Grout v. Hill, i Gray, 361; Wart v. Scott, 6 
 Grant (Ont.) 154 ; Patten's Appeal, 45 Pa. St. 151 ; Babcock v. Bonnell, 
 80 N. Y. 244; Chandler v. Fuller, 10 Tex. 2; McElroy v. Seerey, 61 Md. 
 389 (48 Am. Rep. 110). 
 
 2 Clapp 0. Peck, 65 Iowa, 270; Clapp v. Sohmer, 55 Iowa, 273; Stubbs 
 V. Lund, 7 Mass. 453, 456; Babcock v. BonneU, 80 N. Y. 244, 249; Bell v. 
 Moss, 5 Whart. 189; Atkins v. Colby, 20 N. H. 154; Newhall v. Vargas, 
 13 Me. 193. 
 
 3 Eaton V. Cook, 32 Vt. 58; Stubbs v. Lund, 7 Mass. 453; Clapp v. 
 Sohmer, 55 Iowa, 273; Hays v. Mouille, 14 Pa. St. 48, 54; Bell v. Moss, 
 5 Whart. 189, 200; Newhall v. Vargas, 13 Me. 93; Lewis v. Mason, 36 
 Up. Can. Q. B. 590, 605-608. 
 
 < Scholdeld V. Bell, 14 Mass. 40; Groat v. Hill, 4 Gray, 361; Kahn- 
 weiler v. Buck, 2 Pearson, 69; Cox v. Burns, 1 Iowa, 64; Ash v. Putnam, 
 1 Hill, 302; Sturtevant v, Orser, 24 N. Y. 638; Mason v, Wilson, 43 Ark. 
 172. 
 
 178 
 
Ch. XI.] Stoppage in TRANSiTtf. § 126 
 
 called a stoppage in transitu,^ but it is an altogether dif- 
 ferent transaction.^ 
 
 § 126. Wlio may exercise the right. — It was once sup- 
 posed that the right could only be exercised by those who 
 were strictly called vendors of tlie goods. But it is now 
 very generally held that any one who stands in the relation 
 of vendor to the goods miiy exercise the right, whether he 
 be a factor or commission merchant, who buys for the con- 
 signee,^ or he pays the price for the vendee, and takes the 
 bill of lading in his own name, or has it assigned to him.* 
 It can also be exercised by the vendor of an executory in- 
 terest in the goods. ^ But it cannot be claimed by one 
 having a lien on the goods for labor.* It has been held in 
 Arkansas, that if A. orders goods of B,, and B. sends the 
 order to C, with directions to ship the goods to A., on B's 
 credit, C. cannot exercise the right of stoppage in transitu, 
 on the insolvency of B., on the ground that there is no 
 privity of contract between C. and A., and C is not the 
 vendor of A.' 
 
 But if one has the power to exercise the right of stop- 
 page in transitu, he is not obliged to exercise it personally. 
 His duly authorized agent may exercise it for him.® But a 
 
 1 Walter v. Boss, 2 Wash. C. C. 283. 
 
 2 Berly u. Taylor, 5 Hill. 581; Wood v. Roach, 1 Yeatesj 177; Clark v. 
 Mauran, 3 Paige, 373. 
 
 ' Newhall o. Vargas, 13 Me. 93; Seymour «. Newton, 105 Mass. 275; 
 Ex parte Miles, 15 Q. B. Div. 39; Ilsley ». Stubbs, 9 Mass. 65, 71. 
 
 ' Gossler v. Schepeler, 6 Daly, 476 ; Muller v. Ponder, 65 N. Y. 325. 
 In England, the buyer's surety may stop the goods in transitu. Siffken v. 
 Wray, 6 East. 371,380; Imperial Bank v. London, &c., Dock Co., L. E. 5 
 Ch. D. 195, 202. 
 
 5 Jenkyns v. Usborne, 7 Man. & G. 678, 698. 
 
 ^ Sweet V. Pym, 1 East, 4, 5. 
 
 ' Memphis, &c., E. E. Co. o. Freed, 38 Ark. 614. See Gwyn v. Eich- 
 mond, &c., E. E. Co., 85 N. C. 429. 
 
 8 Eeynolds v. Boston, &c., E. E. Co., 43 N. H. 580, 589; Bell v. Moss, 
 5 Whart, 206. But see Summerilr. Elden, 1 Binn. 106; Gwyn ?J. Eich- 
 mond, &c., B. B. Co., 85 N. C. 429 (39 Am. Rep. 708), 
 
 179 
 
§ 128 STOPPAGE IN TRANSITU. [CH. XI. 
 
 stoppage by an unauthorized agent ii? not good, unless it has 
 been ratified by the vendor, before the vendee has obtained 
 possession of the goods, or made any demand for it.^ But 
 it has been held to be a suflScient ratification, if made before 
 the termination of the transit, although the agent does not 
 receive notice of the ratification until after a demand for 
 the goods has been made by the vendee. ^ 
 
 § 127. The conditions of exercise of the right. — In 
 
 order that the vendor may exercise the right of stop- 
 page in transitu, the following conditions must exist: the 
 goods must be unpaid for; they must be in transit; they 
 must be in the possession of a third person ; and the buyer 
 must be insolvent.' 
 
 § 128. The goods must be unpaid for — Effect of par- 
 tial payment. — Absolute payment necessarily prevents the 
 exercise of the right, since its exercise is solely for the pur- 
 pose of enforcing payment. But the mere taking of time 
 notes or bills in satisfaction of the price does not affect the 
 right, unless by the agreement of the parties this is done 
 in absolute payment of the price.* 
 
 Part-payment also has no effect on the right to stop the 
 goods in protection of the part of the price which remains 
 unpaid.^ 
 
 1 Durgy Cement, &c., Co. v. O'Brien, 123 Mass. U; distingnishing 
 Bird V. Brown, 4 Exch. 786 ; Davis v. McWhirter, 40 Up. Can. Q. B. 5a8. 
 
 2 Kutchings v. Nunes, 1 Moo. P. C. N. S. 243. 
 
 3 More V. Lott, 13 Nev. 376, 379 ; Cooper v. Bill, 8 Hurl. & C. 722, 727 ; 
 Walsh V. Blakely, 9 Pac. Rep. (Mont.) 809'; Wood v. Roach, 2 Ball. 180; 
 Chandler v. Fulton, 10 Tex. 2 ; St. Joze Indiana, 1 Wheat, 208, 212. 
 
 ^Stubbs V. Lund, 7 Mass. 453; Clapp v. Sohmer, 55 Iowa, 273; Hays 
 II. Mouille, 14 Pa. St 48; Lewis v. Mason, 36 Up. Can. Q. B. 590; Eaton 
 V. Cook, 32 Vt. 58; Bell v. Moss, 5 Whart. 200; Newhall v. Vargas, 13 
 Me. 103. See post, § 144, as to what constitutes payment. 
 
 * Jordan v. James, 6 Ohio, 88 ; Newhall v. Vargas, 13 Me. 108 ; Hodgson 
 V, Lay, 7 T. R. 440; Feise v. Wray, 3 East, 93; Edwards v. Brewer, 2 M. 
 180 
 
CH. XI.] STOPPAGE IN TRANSITU. § 130 
 
 § 129. When does the trausit begin. — The second 
 condition is, that the goods must be in transit. Hence the 
 right could not be exercised until the transit has begun . If 
 the right of detention is exercised before the beginning of 
 the transit, it must be in pursuance of some other right, 
 than that of stoppage in transitu?- That delivery of the 
 goods to a carrier which is sufficient to destroy the vendor's 
 lien^ is sufficient proof of the fact that the transit has be- 
 gun. For the goods are in transit, in contemplation of 
 law, as soon as they come into the possession of the com- 
 mon carrier for the purpose of being transported to their 
 place of destination, even though they are not yet loaded 
 for transportation, but are still in the carrier's warehouse 
 awaiting transportation.^ 
 
 § 130. When does the transit end ? — As a general prop- 
 osition, it may be said that the transit, and therewith the 
 right of stoppage in transitu, ends, when the carrier divests 
 himself of possession of the goods in such capacity, by an 
 actual or constructive delivery of the goods to the vendee 
 or his agent.* The delivery need not be at the vendee's 
 
 &,W. 375; Van Oasteel v. Booker, 2 Ex. 702; Alkins u. Colby, 20 N. H. 
 154 ; Haven v. Place, 28 Minn. 551, 553. 
 
 1 See Thompson v. Baltimore, &c., R. E. Co., 28 Md. 396. See also 
 ante, J 122. 
 
 ? See ante, § 95. 
 
 » Bendston v. Strang, L. E. i Eq. 481 ; Stokes v. La Elviere, reported 
 in Bohlling v. Inglls, 3, East, 307; Northey v. Field, 2 Esp. 613; Hodgson 
 V. Loy, 7 T. E. 440; Hoist u. Pownall, 1 Esp. 40; Ex parte Reavear, &c., 
 Co., L. E. 11 Ch. D. 560. 
 
 * Halfe V. AUyn, 60 Tex. 278, 279; Chandler v. Fulton, 10 Tex. 13; 
 Wenger v. Bernhardt, 55 Pa. St. 300; Wind Engine, &c., Co. -o. Oliver, 16 
 Neb. 612, 614; Chicago, &c., R. E. Co. v. Painter, 15 Neb. 394, 396; Ex 
 parte Watson, L. R. 5 Ch. D. 35; Covell v. Hitchcock, 23 Wend. 611; 
 Buckley v. Furniss, 15 Wend. 137; Boyd v. Moseley, 2 Swan, 661 ; Walsh 
 V. Blakely, 9 Pac. Rep. (Mont.) 809, 812; Symns v. Schotten, 10 Pac. Rep. 
 (Kans.) 728; Hays v. Mouille, 14 Pa. St. 53. See Atkius v. Colby, 20 N. 
 H. 154; Sawyer v. Joslin, 20 Vt. 172, 179; Conyers v. Ennis, 2 Mason, 
 
 181 
 
§ 130 STOPPAGE IN TRANSITU. [CH. XI, 
 
 warehouse; for it would be sufficient, if it were made to 
 the vendee's agent at the wharf or depot of the common 
 carrier.' But the mere arrival of the goods at the place of 
 destination does not terminate the transit, as long as (he 
 carrier still has the possession of the goods as carrier.^ 
 And where the carrier still has possession, he is presumed to 
 hold the possession in the capacity of a carrier.' He is also 
 held to retain the possession as carrier, even though the goods 
 have been removed from the cars or ship, and have been 
 stored in the carrier's warehouse, as long as the freight and 
 other charges remain unpaid. The carrier is presumed to 
 remain in possession of the goods, as carrier, until all the 
 claims for transportation have been discharged.* But if the 
 carrier's charges have all been paid by the vendee or his 
 iigent, the subsequent retention of possession by the carrier 
 is then presumed to be in the capacity of a warehouseman or 
 bailee for the vendee, and hence the transit is at an end.' 
 
 236; Mohr v. Boston, &c., K. R. Co., 106 Mass. 67, 70; Hall v. Dimond, 
 8 Atl. Eep. (N. H.) 423. 
 
 ' Scott V. Pettlt, 3 Bos. & P. 469, 472; Rowe v. Pickford, 8 Taunt. 83, 
 86; Merch. Bank Co. v. Phoenix, &c., Co. L. R. 5 Ch. D. 219. 
 
 2 Seymour v Newton, 105 Mass. 275; Greve v. Dunham, 60 Iowa, 108; 
 McFetridge v. Piper, 40 Iowa, 627; Inslee v. Lane, 57 N. H. 454; Parker 
 V. Mclver, 1 Des. Eq. 281; Naylor v. Dennie, 8 Pick. 198; Mottram v. 
 Heyer, 5 Denio, 629. 
 
 3 See Kemp v. Falk, L. R. 7 App. Cas. 573, 584; Hall v. Dimond, 3 Atl. 
 Eep. (N. H.) 433; Ex parte Burrow, L. E. 6 Ch. Div. 783, 738; Ex parte 
 Cooper, L. E. 11 Ch. D. 68, 74, 76, 78; Whitehead v. Anderson, 9 M. & 
 W. 518, 535; Allen v. Griffin, 2 Cromp. & J. 218; Macon West. E. E. Co. v. 
 Meador, 65 Ga. 725; More v. Lott, 13 Nev. 376; McLean v. Breithaupt, 12 
 Ont. App. 383; Syms v. Schotten, 35 Eaus. 310; Guilford u. Smith, 30 
 Vt. 49, 72. 
 
 * Callahan v. Babcock, 21 Ohio St. 281; Syms v. Schotten, 35 Kans. 
 310; O'Neill v. Garrett, 6 Iowa, 480; More v. Lott, 13 Nev. 384; Clapp v. 
 Peck, 55 Iowa, 270; Hoover v. Tibbetts, 13 Wis. 79; Morris v. Shryock, 
 50 Miss. 591 ; Halfe v. Allyn, 60 Tex. 278 ; Chandler v. Fulton, 10 Tex. 1 ; 
 Bender©. Bowman, 2 Pearson, 517; McLean v. Breithaupt, 12 Ont. App. 
 383; Sawyer v. Joslin, 20 Vt. 172 (49 Am. Dec. 768.) 
 
 5 McFetridge v. Piper, 40 Iowa, 627; Hall v. Dimond, 63 N. H. 565; 
 I^ne V. Robinson, 18 B. Mon. G23. 
 182 
 
CH. XI. J STOPPAGE IN TllANSITU. § 130 
 
 But the mere tender of the charges for freight by the vendee 
 does not terminate the transit, if it is not accepted ; al- 
 though the tender was in every respect legal, and the car- 
 rier's refusal to deliver to the vendee was not based on any 
 sufficient grounds.^ 
 
 For the same reasons, the deposit of goods by the carrier, 
 at the place of destination, in the custom house, does not in 
 itself terminate the transit, and therewith the right of 
 stoppage in transitu. The right of stoppage in transitu 
 continues until the goods have been duly entered by the 
 consignee, and the custom house charges paid.^ The de- 
 livery need not necessarily be made to the vendee, nor even 
 to his agent. If the right to the goods has been assigned 
 by the consignee, then delivery to the assignee will termi- 
 nate the transit as well as would delivery to the consignee, in 
 the absence of an assignment.^ But the delivery must be 
 made to the vendee or his duly authorized agent or assignee, 
 in order to put an end to the right of stoppage in transitu. 
 If the goods are seized by an officer, under a writ of attach- 
 ment or execution, and taken from the carrier, the right of 
 stoppage in transitu remains unaffected by the seizure, and 
 may still be exercised.* It is a self evident proposition that 
 
 1 Allen V. Mercier, 1 Ashm. 103. 
 
 2 Cartwright v. Wilmerding, 24 N. Y. 521 ; Fraschierls v. Henriques^ 
 6 Abb. Pr. (n. s.) 251; Wiley ti. Smith, 1 Ont. App. 179; Wilds v. Smith, 
 2 Ont. App. 8; Parkers. Byrnes, 1 Low. 539; Donath v. Broomhead, 7 
 Pa. St. 301; Burnham v. Winsor, 5 Law Rep. 507; Holbrook v. Vose, 6 
 Bosw. 78; Lewis ». Mason, 36 Up. Can. Q. B. 590; In re Beams, 18 
 BaukEeg. 600; Mottram o. Heyer, 5 Denio, 629. See Mohr v. Boston, 
 &c., R. B. Co., 106 Mass. 67, 71. 
 
 3 Stevens v. Wheeler, 27 Barb. 658, 661 ; Holbrook v. Vose, 6 Bosw. 
 77; U. S. Wind Engine Co. v. Oliver, 16 Neb. 612. 
 
 * Sherman v. Rugee, 55 Wis. 346, 349; Kitchen v. Spear, 30 Vt. 545; 
 Naylor v. Dennie, 8 Pick. 198; Seymour v. Newton, 105 Mass. 275; 
 Durgy Cement, &c., Co. «. O'Brien, 123 Mass. 14; Clark v. Lynch, 4 Daly, 
 83 ; Blackman v. Pierce, 23 Gal. 508 ; Rucker v. Donovan, 13 Kan. 251 ; 
 Mississippi Mills v. Bank, 9 Lea, 314; Wood v. Yeatman, 15 B. Mou. 
 270; Covell v. Hitchcock, 23 Wend. 611; Buckley «. Furniss, 15 Wend. 
 137; 17 Wend. 504; Cox v. Burns, 1 Iowa, G4. 
 
 183 
 
§ 131 STOPPAGE IN TRANSITU. [CH. XI. 
 
 a delivery of part of the goods to the consignee is not a bar 
 to the exercise of the right of stoppage in transitu in respect 
 to the goods not yet delivered, unless by agreement of the 
 parties the delivery of a part of the goods is taken as a con- 
 structive delivery of the whole.^ 
 
 § 131. Delivery at an intermediate port. — But, in 
 order to terminate the right of stoppage in transitu, the 
 vendee need not take possession at the original place of 
 destination. If he actually acquires the possession, it will 
 be sufficient, even though it is acquired at some point inter- 
 mediate to the point of departure and the place of original 
 destination. The vendee or his assignee may intercept the 
 goods on their way and destroy the right of stoppage in 
 transitu, hy gettmg the goods into his possession.^ And 
 the rights of the vendor are lost by this interception of the 
 goods at an intermediate point, although it is done by a 
 vendee's agent under instructions to ship the goods to some 
 other point than the original place of destination.'* The 
 right of stoppage is, however, not destroyed by the inter- 
 ception of the goods by the vendee's agents, when they 
 take possession of the goods under instructions from the 
 vendee to ship them to him at the original place of destin- 
 ation. The delivery at the intermediate point is required 
 to be a bona fide delivery, in order to terminate the 
 transit and destroy the vendor's right of stoppage. And 
 delivery at the intermediate point, with the intention of 
 having the goods reshipped to the original place of 
 destination, is evidently done for the purpose of defeat- 
 
 1 Kemp V. Falk, L. E. 7 App. Cas. 573; Ex parte Cooper, L. E. 11 Ch. 
 D. 68 ; Buckley v. Furniss, 17 Wend. 504, 505. 
 
 2 Secomb v. Nutt, 14 B. Men. 324; Wood v. Teatman, 15 B. Mon. 270; 
 Stearns v. Wheeler, 27 Barb. 658 ; Mohr v. Boston, &c., E. E. Co., 106 
 Mass. 72; Poole v. Houston & Texas C. E. Co., 58 Tex. 134. 
 
 3 Beckers. Hallgarten, 86 N. Y. 167; Kendal ». Marshall, 11 Q. B. D. 
 356; Ex parte Miles, 15 Q.B. D. 39. 
 
 184 
 
CH. XI. J STOPPAGE IN TRANSITU. § 133 
 
 ing the vendor's rights, and, therefore, not a bona fide 
 delivery.' 
 
 § 132. Delivery to agent at place of destination with 
 provision for further transportation. — On the other hand, 
 if the goods are brought to the place of destination desig- 
 nated in the contract of shipment, and there delivered to 
 an agent of the vendee, it does not revive, or prevent the 
 loss of, the right of stoppage in transitu, that the vendee's 
 agent takes possession with the instructions to forward the 
 goods to another place. The provision for further trans- 
 portation does not make the delivery by the first carrier 
 any less a termination of the transit.^ 
 
 § 133. Delivery by vendor to ship chartered by vendee 
 — Vendee acting as the carrier. — Since delivery of the 
 goods to some third person as carrier is essential to the 
 exercise of the right of stoppage in transitu, and the right 
 of stoppage is lost whenever the vendee acquires possession, 
 if the vendee himself acts as carrier of the goods, either as 
 owner and manager, or charterer, of the car or ship, and 
 the goods are delivered to him for transportation, it has 
 been held that there is. ordinarily such a delivery to the 
 vendee, as to put an end to, or prevent altogether the at- 
 tachment of the right of stoppage in transitu.^ But the 
 
 1 Harris ». Pratt, 17 N. Y. 249; limited in 86 N. Y. 167; In re Foot, U 
 Blatchf. 530; Aguirre v. Parmelee, 22 Conn. 473; Pottinger v. Hecksher, 
 2 Grant, 309; McDonald ». McPherson, 12 Duval (Can.) 416; Markwald 
 V. Creditors, 7 Cal. 213; Hays v. MonlUe, 14 Pa. St. 48; Holbrook v. Vose, 
 6 Bosw. 76; Cabeer v. Campwell, 30 Pa. St. 254. 
 
 2 Gnilford v. Smith, 30 Vt. 49; Biggs ». Barry, 2 Curtis, 259; Brooke 
 Iron Co. V. O'Brien, 135 Mass. 442; Pottinger t;. Hecksher, 2 Grant (Ont.) 
 309; Sawyer v. Joslin, 20 Vt. 172; Harris v. Hart, 6 Duer, 606, 625; 
 Hays V. Mouille, 14 Pa. St. 48 ; Ex parte Gibbes, L. E. 1 Ch. D. 101, 109 ; 
 Becker v. Hallgarten, 86 N. Y. 167; G1U». Benjamin, 64 Wis. 363 (54 Am. 
 Rep. 619, 623); Kendall v. Stevens, L. E. 11 Q. B. D. 356; Ex parte 
 Miles, L. E. 15 Q. B. D. 39. 
 
 3 Ogle «. Atkinson, 5 Taunt. 759; Turner v. Trustees Liverpool Docks, 
 
 185 
 
§ 134 STOPPAGK IN TRANSITU. [CH. XI. 
 
 doctrine has been repudiated by the Massachusetts and the 
 later English cases, ^ and the right of stoppage in transitu 
 is held to exist still, notwithstanding the goods are put for 
 transportation on board of the vendee's car or vessel. But 
 it would in any event be held that if the consignor should 
 take a bill of lading providing for the delivery of the goods 
 to his order, the delivery of the goods to the vendee for 
 transportation in his own car or vessel would be to him 
 strictly in the capacity of a carrier, and he could not claim 
 to receive them as vendee. The vendor could stop the 
 goods in transitu under these circumstances.^ But it would 
 seem, however, that where the bill of lading is taken to the 
 order of the consignor, there has been no delivery of the 
 goods by the vendor at all, he has not parted with the 
 title ,^ and hence the right of stoppage in transitu has not 
 attached; but that the goods, by being stopped or ordered 
 to be returned, are controlled by their owner, the person 
 to whose order they are to be delivered on arrival at the 
 place of destination. 
 
 § 134. Effect of resale of goods or right of stoppage 
 in transitu. — A mere sale of the goods by the consignee, 
 without any agreement or understanding with the vendor, 
 would have no effect on the right of stoppage in transitu, 
 unless the subvendee acquires possession of the goods.* 
 
 6 Ex. 543; 20 L. J. Ex. 394; Van Casteel v. Booker, 2 Ex. 691; Bolln v. 
 Huffnagel, 1 Rawle, 9, 18; Thompson ». Stewart, 7 Phila. 187; Cross v. 
 O'Donnell, 44 N. Y. 661 ; Pequeno v. Taylor, 38 Barb. 375. See Newhall 
 V. Vargas, 13 Me. 107; Parker v. Mclver, 1 Des. Bq. 281; Rowley o. 
 Bigelow, 12 Pick. 307. 
 
 1 Stubbs V. Lund, 7 Mass. 463; Ilsley v. Stubbs, 9 Mass. 65; Brindley 
 V. Cilwyn Slate Co., 55 L. J. Q. B. 67; Ex parte Rosevear China Clay Co., 
 11 Ch. Div. 660. 
 
 2 Turner v. Trustees Liverpool Docks, 6 Ex. 643, 20 L. J. Ex. 394. 
 
 3 See ante, § 95. 
 
 ^ Holbrook v. Vose, 6 Bosw. 77 ; U. S. Wind Engine Co. v. Oliver, 16 
 Neb. 612 (where possession had been acquired by subvendee) ; Tread- 
 well V. Aydlette, 9 Heisk. 388 (with agreement of vendor) ; Rowley v. 
 186 
 
CH. XI. J STOPPAGE IN TRANSITU. § 135 
 
 But if a bill of lading has been issued, by a transfer of the 
 bill of lading to the subvendee, he becomes the owner of 
 the goods, and the vendor loses his right of stoppage, al- 
 though the goods are stillin transit.^ A bona fide transfer 
 of the bill of lading would destroy the right of stoppage, 
 although made in payment of an antecedent debt,^ but not, 
 where the bill is assigned merely as collateral security.^ 
 Nor, where it is transferred to an assignee for the benefit 
 of the vendee's creditors, as long as the assignee does not 
 acquire possession before the exercise of the right of stop- 
 page.* And it is also held that if the original sale was 
 tainted by the fraud of the vendee, the right of stoppage 
 in transitu may be exercised, notwithstanding the transfer 
 of the bill of lading." 
 
 § 135. Insolvency of the buyer. — The last condition of 
 the exercise of the right of stoppage in transitu is that the 
 buyer has become insolvent, or that the vendor has learned 
 of the buyer's insolvency since the goods have been ship- 
 ped to the buyer. If the insolvency occurs and is known 
 
 Bigelow, 12 Pick. 307 (agreement of vendor) ; Eaton v. Cook, 32 Vt. 58 ; 
 Wait V. Scott, 6 Grant. (Ont.) 154. 
 
 1 Newhall v. Cen. Pac. B. K., 51 Cal.345; Loeb ». Peters, 63 Ala. 248; 
 Chandler v. Fulton, 10 Tex. 2. See for effect of premature transfer of 
 bill of lading, before it has come into possession of the vendee, Patteson 
 ■a. Coulton, 33 Ind. 240; Walter v. Boss, 2 Wash. C. C. 283; Stanton v. 
 Eager, 16 Pick. 476. 
 
 2 Lee II. Kimball, 45 Me. 172; Least u. Scott, 2 Q. B. D.376; Clement- 
 son V. Grand Trunk By. Co., 42 Up. Can. Q. B. 273. 
 
 2 Loeb D. Porters, 63 Ala. 243; Lessasier v. Southwestern, 2 Woods, 3. 
 
 * Stanton i;. Eager, 16 Pick. 467; Arnold «. Delano, 4 Cush. 33; Bell 
 ». Moss, 5 Whart. 205; Buckley v. Furniss, 17 Wend. 504; Harriss u. 
 Hart. 6 Dur. 627. 
 
 * Dows V. Perrin, 16 N. Y. 326; Decan v. Shipper, 36 Pa. St. 239; 
 Brower v. Peabody, 13 N. Y. 122; Evansville, &c., E. B. Co. v. Erwin, 86 
 Ind. 457. See Barnard v. Campbell, 55 N. Y. 456 ; Pollard v. "Vinton, 106 
 U. S. 7. But see Dows v. Greene, 32 Barb. 490; 24 N. Y. 638; Dows v. 
 Hush, 28 Barb. 167; Blossom v. Champion, 28 Barb. 217. See also 
 post, § 
 
 '187 
 
§ 135 STOPPAGE IN TRANSITU. [CH. XI. 
 
 by the seller before he ships the goods, he cannot exercise 
 the right of stopp3,ge« There must be Ji change of circum- 
 stances after shipment, in order to justify his stoppage of 
 the goods. ^ 
 
 It is not necessary that there should be a technical case 
 of insolvency ; as that the buyer has failed to meet his 
 bank obligations, has taken advantage of the bankrupt law 
 or made an assignment for the benefit of creditors. It 
 is sufficient to justify the right of stoppage in transitu, 
 if the seller can show general inability on the part of the 
 buyer to pay his debts.^ 
 
 The vendor stops the goods at his peril ; and if he should 
 exercise this right of stoppage in a case where the buyer 
 was not insolvent, he would be liable to the buyer for all 
 the damages which the latter had suffered from the stop- 
 page of the goods, it matters not whether it was the result 
 of malice or of a mistake.^ 
 
 1 Benedict v. Schaettle, 12 Ohio St. 615; Loebt). Peters, 63 Ala. 243; 
 Gustine v. Phillips, 38 Mich. 675; O'Brien v. Norris, 16 Md. 122; 
 Schwabacher «. Kane, 13 Mo. App. 126; More v. Lott, 13 Nev. 380; 
 Buckley v. Furniss, 15 Wend. 137; Bender v. Bowman, 2 Pearson, 517; 
 "Wliite V. Mitchell, 38 Mich. 390; Blum o. Marks, 21 La. An. 268: Rey- 
 nolds V. Boston Maine R. Co., 43N. H. 589; Naylor b. Dennie, 8 Pick. 
 198; Stevens v. Wheeler, 27 Barb. 658. But see Rogers v. Thomas, 20 
 Conn. 53. 
 
 == O'Brien v. Norris, 16 Md. 122, 132; Durgy Cement, &c., Co. o. 
 O'Brien, 123 Mass. 12, 13; Bloomlngdale v. Memphis, &c., R. B. Co., 6 
 Lea, 616, 628; More v. Latt, 13 Nev. 376; Blum v. Marks, 21 La. An. 268; 
 Secomb c.Nutt, 14 B. Mon. 261; Lee v. Kilburn, 3 Gray, 596, 599; Walsh 
 V. Blakely, 9 Pac. Rep. (Mont.) 809; Benedicts. Schaettle, 12 Ohio St. 
 516, 519; Nayloro. Dennle, 8 Pick. 198; Hays v. Mouille, 14 Pa. St.' 48, 
 51. The mere fact that a creditor of the buyer has attached his goods in 
 transit would not be sufficient; there must be a general inability to pay. 
 Gustine v. Phillips, 38 Mich. 674. See also for definitions of legal in- 
 solvency, Thompson v. Thompson, 4 Cush. 127; Herrick«. Borst, 4 Hill 
 650; Chandler v. Pulton, 10 Tex. 2. But see Rogers v. Thomas, 20 
 Conn. 54. 
 
 3 More V. Lott, 13 Neb. 376; The Constantia, 6 Rob. Adm. 321; Bene- 
 dict V. Schaettle, 12 Ohio St. 513, 618. 
 188 
 
CH. XI.] STOPPAGE IN TRANSITU. § 137 
 
 § 136. Mode of exercising the right. — The vendor is 
 not required to regain the actual possession of the goods, 
 in order to assert his claim. It is. sufficient if he gives 
 notice to the common carrier to hold the goods suhject to 
 his order. ^ But the notice must be served on the person or 
 carrier who has the custody of the goods. It cannot be 
 served on the vendee. ^ And where the goods are aboard 
 ship, the notice must be given, either directly or indirectly, 
 to the master of the vessel, or to whatever officer is in 
 charge of the goods. If the notice is sent to the consignee 
 or owner of the ship, to be effective as a stoppage of goods 
 in transitu it must be given in time to enable this notice to 
 be communicated to the officer, who has charge of the 
 goods, the master, the supercargo or purser, before he has 
 delivered the goods to the vendee.^ 
 
 There must, of course, be a sufficient description of the 
 goods, to enable an identification of them.* 
 
 § 137. Effect of stoppage of goods on rights of car- 
 rier. — If the carrier has been duly notified of the stop- 
 ])age of the goods, he is obliged to hold them subject to 
 the seller's order, and if he delivers them to any one else, 
 he is liable to the seller.^ But if the goods have been 
 t:iken out of the possession of the carrier by an officer of 
 the law under an execution or attiichment, before the car- 
 rier receives the notice of the stoppage of the goods, he is 
 
 1 Newhall ». Vargas, 13 Me. 93; Kucker v. Donovans, 13 Kans. 251; 
 Reynolds v. Boston & Me. E. R. Co., 49 N. H. 580; O'Brien v. Norris, 16 
 Md. 122, 130; Seymour i). Newton, 105 Mass. 272, 276; Kemp v. Falk, L. 
 R. 7 App. Cas. 585; Lltt v. Cowley, 7 Taunt. 168. 
 
 2 Mottram ». Heyer, 5 Denio, 629, 634. But see apparently contra, 
 Bell V. Moss, 5 Whart. 206. 
 
 2 Whitehead v. Anderson, 9 M. & W. 518; Kemp v. Falk, 8 App. Cas. 
 685. But see Ex parte Falk, 14 Ch. D. 446 ; C. A. 455. 
 
 * Clementsen v. Grand Trunk Ey. Co., 42 Up. Can. Q. B. 263, 270. 
 
 « Bloomingdale v. Memphis, &c., E. R, Co., 6 Lea, 616 ; Ascher v. Grand 
 Trunk Ry. Co., 36 Up. Can. Q. B. 609; Howatt v. Davis, 6 Munf. 34; 
 CMlds V. Northern Ry. Co., 25 Up. Can. Q. B. 165. 
 
 189 
 
§ 137 gfStPAGE IN ffiANSITlJ, [cH. Xl. 
 
 not required to communicate the notice to the ofScer in 
 charge of the goods.^ 
 
 But the seller exercises his right of stoppage, in any 
 event, subject to the carrier's lien for freight ; and the 
 seller is not entitled, as against the carrier, to the posses- 
 sion of the goods, until the freight charges have been paid.^ 
 
 1 French v. Star Union Transportation Co., ISl Mass. 288. 
 
 2 Potts V. New York, &c., K. R. Co., 131 Mass. 455; Eucker v. Dono- 
 van, 13 Eans. 266 ; Oppeuheim v. Russell, 3 Bos. & F. 12. 
 
 190 
 
CHAPTEK XII. 
 
 PAYMENT AND TENDER. 
 
 Section 139. Effect of payment and tender. 
 
 140. What constitutes a sufficient or legal tender. 
 
 141. Who may make payment. 
 
 142. To whom payment may be made — Authority of agents to 
 
 receive payment. 
 
 143. Payment made with what. 
 
 144. Payment by note or bill, when absolute or conditional. 
 
 145. Payment by checks. 
 
 146. Presumptions in respect to absolute and conditional pay- 
 
 ment, how rebutted. 
 
 147. Right of action suspended by taking bill or note in pay- 
 
 ment of debt. 
 
 148. Duties of holder of bill or note taken in payment. 
 
 149. Payment in counterfeit or worthless bills. 
 
 150. Payment in specific articles. 
 161. Payment by set-off. 
 
 152. Appropriation of payments. 
 163. Payment on Sunday. 
 154. Payment by mail. 
 
 § 139. Effect of payment and tender. — The payment 
 of the price of a contract of sale, in the case of a cash 
 transaction, entitles the buyer to the possession of the 
 goods,^ and in every case it constitutes a complete satisfac- 
 tion of the buyer's obligations under the contract. 
 
 Nothing but payment or some other equivalent satisfac- 
 tion can discharge the buyer from his obligations under the 
 contract of sale. But if the buyer, in proper form, makes 
 a good tender of payment, while he does not thereby dis- 
 charge his obligation for the price, he relieves himself from 
 liability for damages on account of breach of duty. He is 
 
 1 See ante, § 93. 
 
 191 
 
^ 140 PAYMENT AST) TENDEJEt. [CH. XII. 
 
 not only relieved of liability for costs, but also for subse- 
 quently accruing interest,^ But he would, of course, 
 remain liable for all interest and costs, which had accrued, 
 when the tender was made, although the buyer was un- 
 aware of their accrument.^ But, since the tender has to 
 be kept up, in order to avoid costs and interest, it is prob- 
 ably necessary to bring the money into court, in the case 
 of a suit, in order to prevent the attachment of costs.^ 
 
 § 140. What constitutes a sufficient or legal tender. — 
 
 In order that the tender may operate as a defense to any 
 claim for subsequent costs and interest, it must contain all 
 all the requirements of the law for a legal tender. 
 
 1. In the first place, the tender must be made in that curr 
 rency, which the law makes a legal tender in payment of 
 debts. 
 
 The legal tender, in the United States, constitutes at 
 present the gold and silver coin of the denomination of 
 one dollar and over, and the United States treasury notes. 
 The constitutionality of the acts of Congress, which have 
 made these notes legal tender, has been very seriously 
 questioned and in one case denied by the Supreme Court 
 of the United States,* the position being taken that Con- 
 gress had no power to make legal tender of any thing which 
 had no intrinsic value.® Bat in later cases, the Federal 
 Supreme Court has pronounced these acts constitutional, 
 
 « Suffolk Bank v. Worcester Bank, 5 Pick. 105; Goff v. Rehoboth, 2 
 Cush. 475; Gracy v. Potts, 4 Baxt. 395; Cornells. Green, lOSerg.&R. 14. 
 
 2 Wright V. Behrens, 39 N. J. L. 413 ; Emerson v. White, 10 Gray, 
 351; Eaton v. Wells, 22 Hun, 123. See also Holdridge v. Wells, 4 
 Conn. 151; Ashburn v. Poulter, 35 Conn. 557. But compare Haskell ». 
 Brfwer, 11 Me. 258. 
 
 3 See Pennypacker v. Umberger, 22 Pa. St. 492 ; Wheeler v. Wood- 
 ward, 66 Pa St. 158. 
 
 * Hepburn v. Griswold, 8 Wall. 604. 
 
 s See Tiedeman's Limitations on Police Power, § 90, for a full discus- 
 sion of this question, 
 192 
 
CH. XII.] PAYMENT AND TENDER. § 140 
 
 and this may be taken as a definite settlement of the ques- 
 tion. ^ 
 
 A legiil tender cannot, therefore, be made of State bank 
 bills, ^ nor of notes or bills of private individuals, even 
 those of the seller.' But if a tender is made of the price 
 in national bank notes, and other notes, which commonly 
 pass current as money, it will be legal and sufficient, unless 
 the seller objects to the character of the money which is 
 tendered to him.* 
 
 2. In the second place, the exact amount must, as a gen- 
 eral rule, be tendered. A tender of a part of the price, if 
 not accepted by the seller, has no effect on the rights of 
 the parties under the contract of sale.^ But if the seller 
 alone knows the exact amount of the price, and he refuses 
 to inform the buyer what it is, the buyer can make a legal 
 tender, by tendering a reasonable sum in payment. Any 
 reasonable deficiency in the amount tendered will not inter- 
 fere with what would otherwise be the effect of the tender.^ 
 
 3. The money must be produced, and offered to the seller 
 unless its production is waived. A mere offer to pay with- 
 out production will ordinarily not suffice.' The possession 
 
 1 Legal Tender Cases, 12 Wall. iST; Dooley v. Smith, 13 Wall. 605; 
 Bigler v. Waller, 14 Wall. 298 ; Railroad Co. v. .Johnson, 15 Wall. 195 ; 
 Juillard v. Greenman, UOU. S. 421. 
 
 2 Moody V. Mahurln, 4 N. H. 296; Coxe u. State Bank, 8 N. J. L. 172; 
 Donaldson ». Benton, 4 Dev. & Bat. 435. 
 
 3 Cary u. Bancroft, 14 Pick. 315; Wllmarth v. Mountford, 4 Wash. C. 
 C. 79; Bellows v. Smith, 9 N. H. 285; Barker t). Walbridge, 14 Minn. 
 469. 
 
 * Ward V. Smith, 7 Wall. 447; Williams v. Rorer, 7 Mo. 556; Towson 
 V. The Havre-de-Grace Bank, 6 Har. & J. 53; Snow v. Perry, 9 Pick. 542; 
 Ball V, Stanley, 5 Yerg. 199; Fosdick v. Van Husom, 21 Mich. 567; 
 Lowell v. Henry, 6 Ala. 226; Hoyt v. Byrnes, 11 Me. 475; Brown v. 
 Dysinger, 1 Rawle, 408; Wheeler v. Knaggs, 8 Ohio, 169; Harding i). 
 Commercial Line Co., 84 111. 251; Warren v. Mains, 7 Johns. 476. 
 
 5 Wright V. Behrens, 39 N. J. L. 413. 
 
 * Nelson v. Robson, 17 Minn. 284; see Oakland Bank c. Applegarth, 
 67 Cal. 86. 
 
 ' Breed v. Ilurd, 6 Pick. 35G; Shevedine v. Gaul, 2 Dall. 190: Potts v. 
 
 13 19S 
 
§ 140 PAYMENT A\D TENDER. [CH. XII. 
 
 of the money, either actual,^ or potential, as when the 
 debtor's friend is present and willing to pay the money for 
 him,^ will not be a substitute for a production of the money, 
 unless the production was clearly waived. It is a sufficient 
 production, if the right amount contained in a bag is pro- 
 duced, although the money is not actually counted out.' 
 But it has been held to be insufficient, where the money 
 was onthe buyer's desk, and tender was made, but the seller 
 did not and could not see it, and went away without making 
 any response ; * and so, also, where the money was pro- 
 duced, but no sum was mentioned in the tender.* 
 
 However, the production and even the possession of the 
 money may be waived by the seller, expressly or by im- 
 plication , as where he refuses to accept payment if the 
 money be produced.® 
 
 4. The tender must be unconditional, the imposition of 
 any condition on the acceptance of the tender destroys its 
 value. It must be free from all conditions.' Although 
 it is not yet settled whether the buyer may ordinarily 
 demand a written receipt on payment of his debt, it 
 is clear that he cannot demand a receipt "in full," or 
 a formal discharge or cancellation of a mortgage' — 
 
 Plaisted, 30 Mich. 149; Harmon ». Magee, 67 Miss. 410; Sargent v. Gra- 
 ham, 5 N. H, 440; Fuller ». Little, 7 N. H. 535. 
 
 1 Bakeman v. Pooler, 15 Wend. 637; Strong ». Blake, 46 Barb. 227. 
 
 2 Sargent v. Graham, 6 N. H. 440. 
 
 s Behaley v. Hatch, Walker (Miss.) 369. 
 
 1 Mathewson v. Kelly, 24 Up. Can. C. P. 598. 
 
 s Knight V. Abbott, 30 Vt. 677. 
 
 6 Hazard u. Loring, 10 Cush. 267; Berry v. Nail, 54 Ala. 451; Bertliold 
 V. Eeyburn, 61 Mo. 595; Guthman v. Keam, 8 Neb. 507; Sands, v. Lyon, 
 18 Conn. 18; Ashburn v. Poulter, 35 Conn. 553; Wheeler v. Knaggs, 8 
 Ohio, 172. 
 
 ' Richardson v. Boston Chemical Laboratory, 9 Met. 52; BrooKlyn 
 Bank v. De Grauw, 23 Wend. 342; Cashman v. Martin, 50 How. Pr. 338; 
 Cass «. Higenbotam, 27 Hun, 406; Tompkins v. Batie, 11 Neb. 147; Flake 
 V. Nuse, 61 rex. 98; Kose v. Duncan, 49 Ind. 269; Roosevelt ». Bull's 
 Head Bank, 45 Barb. 679; Strong v. Blake, 46 Barb. 227. 
 
 « Wood V. Hitchcock, 20 Wend. 47; Hepburn v. Auld, 1 Cranch, 32Ii 
 
CH. XII. J PAYMENT AND TENDER. § 142 
 
 unless a statute requires such a discharge or release to be 
 given. ^ 
 
 Finally, the tender must be maintained and kept open; 
 that is, the buyer must always be ready on the subsequent 
 demimd of the price by the seller to pay it to him. Any 
 failure to comply with such a demand, would make the 
 original tender of no avail. ^ And if suit is subsequently 
 brought for the price, in order to keep the original tender 
 good, the buyer must pay the price into court for the plaintiff.^ 
 
 § 141. Who may make payment. — The buyer or his 
 duly authorized agent can alone make payment, without the 
 co-operation or assent of the parties. A stranger to the 
 transaction cannot make payment, or tender of payment so 
 as to extinguish the debt or stop the accrument of interest, 
 without the assent of the seller ; and such a payment doesnot 
 give the stranger any claim of exoneration against the buyer, 
 unless he too has assented to the payment.* 
 
 § 142. To whom payment may be made — Authority 
 of agrents to receive payment. — No one, but the seller 
 himself, has the right to receive payment, unless he be the 
 duly authorized agent of the seller. A payment to a third 
 person for the seller but without his authority, does not 
 extinguish the buyer's liability to the seller, or even oper- 
 ate as a tender, although the latter has been informed of 
 the payment.^ 
 
 Loring v. Cooke, 3 Pick. 48; Storeys. Krewson, E5 Ind. 397; Richardson 
 V. Boston Chemical Laboratory, 9 Met. 43; Thayer v. Brackett, 12 Mass. 
 450; Jewett v. Earle, 21 Jones & Sp. 349. 
 
 1 Saunders v. Frost, 6 Pick. 270; Balme v. Wambaugh, IS Minn. 116. 
 
 ' Dodger v. Fearly, 19 Hun, 277; Parks v. Alten, 42 Mich. 482; Gray 
 V. Ailgier, 62 Ga. 896; Town v. Trow, 24 Pick. 168; Grain v. McGoon, 86 
 111. 431 ; Thayer v. Meeker, 86 111. 470; Carr v. Miner, 92 111. 604. 
 
 3 Becker v. Boon, 61 N. Y. 317; Gilkeson v. Smith, 15 W. Va. 44; 
 Hamlett v. Tallman, 30 Ark. 505. 
 
 * Neely v. Jones, 16 W. Va. 625; Sinclair v. Learned, 51 Mich. 335. 
 
 « Town V. Trow, 24 Pick. 168; Breed v, Hurd, 6 Pick. 35G. 
 
 195 
 
§ 142 PAYMENT AND TENDER. [cH. XII. 
 
 But the agent in order that he may have the power to 
 receive payment for the seller, need not be expressly au- 
 thorized. The authority may be implied from a variety of 
 circumstances depending upon custom and usage. ^ The 
 mere authority to sell, which the ordinary broker, salesman 
 or drummer possesses, in the absence of any right to the 
 possession of the goods, or of the bills of account for col- 
 lection, will not imply the power to collect and receive 
 payment.^ But the agent will be presumed to have the 
 power to receive payment for the seller, if in selling the 
 goods he is given the possession of them,* or if he has the 
 possession of the bills of account although he did not sell 
 the goods.* An attorney at law, who is given a claim to 
 collect, is always authorized to receive payment and give a 
 release.'' But an officer who serves a writ of attachment or 
 execution, is never impliedly authorized to receive pay- 
 ment." 
 
 Where the buyer has a good reason for believing the 
 
 1 See Meyer v. Stone, 46 Ark. 210. 
 
 2 Higgins V. Moore, 36 N. Y. 417; Koruemann v. Monahan, 24 Mich- 
 36; Abrahams v. Miller, 87 111. 179; Clark v. Smith, 88 111. 298; Green- 
 hood V. Keator, 9 Bradw. 183; Law v. Stokes, 32 N. J. L. 250; Hirshfleld 
 V. Waldron, 54 Mich. 649; Dunn v. Wright, 51 Barb. 244; Harrison v. 
 Boss, 12 Jones & Sp. 230; Greenleaf v. Eagan, 30 Minn. 316; Chambers 
 V. Short, 79 Mo. 204; Janney v. Boyd, 30 Minn. 319; Seiple v. Irwin, 30 
 Pa. St. 513; Kohn v. Washer, 64 Tex. 131; Butler w. Dorman, 68 Mo. 
 298; Bernshouse v. Abbott, 45 N. J. L. 531; McKindly v. Dunham, 55 
 Wis. 5l5. See contra, Hoskins v. Johnson, 5 Sneed, 469; Collins v. 
 Newton, 7 Baxt. 269; Trainer v. Morrison, 78 Me. 160; Putnam v. 
 French, 53 Vt. 402. 
 
 3 Whiton V. Spring, 74 N. Y. 173; Rice v, GrafEman, 56 Mo. 434; 
 Harris v. Simmerman, 81 111. 413. But if the buyer knows that the 
 agent has not the power to receive payment, or deliver goods which he 
 sells, the buyer cannot claim title or release from liability, as against 
 the principal. Cummins v. Beaumont, 68 Ala. 204. 
 
 ^ Adams v. Humphreys, 54 Ga. 496. See Kinsman v. Kershaw, 119 
 Mass. 140. 
 
 *> Gray ij. Wass, 1 Greenl. 257; Ducett ». Cunningham, 39 Me. 386; 
 BrackettB. Norton, 4 Conn. 517; Branch v. Burnley, 1 Call. 147. 
 
 ' Waite V. Delesdemier, 15 Me. 144. 
 
CH. XII.] PAYMENT AND TENDER. § 143 
 
 party selling the goods to be the principal, a payment to 
 1 he supposed principal but actual agent will be binding on 
 the seller.^ 
 
 But the agent's authority terminates with the revocation 
 of the agency. If the agency is terminated by the death 
 of the principal, the agent's authority is revoked inslanter, 
 and a subsequent payment to the agent would not be bind- 
 ing on the estate of the deceased principal, although the 
 buyer did not know of the revocation of the agency,^ unless 
 the money so paid to the ex-agent goes to- the benefit of 
 the deceased principal's estate.* But if the agency is re- 
 voked in any other way, the payment to the agent will be 
 binding on the principal, as long as the principal does not 
 give out the proper notice of the revocation of the agency.* 
 
 The agent who has the authority to collect has only the 
 authority to receive money in payment. Any other mode 
 of settlement is beyond his authority.^ 
 
 § 143. Payment made with vrhat. — Payment can only 
 be made with money, i.e., legal tender, except with the 
 consent of the creditor. If a contract calls in general 
 terms for the payment of a given sum of dollars, the payer 
 can make payment in any kind of legal tender, and the 
 creditor cannot insist upon the selection of any one kind 
 with which to make payment. And even where one kind 
 of legal tender is depreciated in value, as in the case of the 
 United States treasury notes, during and after the Ameri- 
 
 1 Eclipse Windmill Co. v. Thornton, 46 Iowa, 181; Peel u. Shepherd, 
 58 Ga. 365; Pratt v. Collins, 20 Hun, 126; Wright v. Cabot, 89 N. Y. 
 570. 
 
 2 Clayton!). Merrett, 52 Miss. 353; Gale «. Tappan, 12 N. H. 145. 
 But see Cassidy v. McKenzie, 4 Watts & S. 282. 
 
 3 Dick V. Page, 17 Mo. 234. 
 
 * Packer ». Hinckley Locomotive Works, 122 Mass. 484. 
 
 6 Aultman v. Lee, 43 Iowa, 404; Langston v. Maitland, 11 Gill. & J. 
 286; Bevis u. Heflin, 63 Ind. 129; Falls u. G'aither, 9 Port. (Ala.) 605; 
 Burks V. Hubbard, 69 Ala. 379; Broughton v. Silloway, 114 Mass. 71. 
 
§ 143 PAYMENT AND TENDER. [CH. XII. 
 
 can civil war, it does not interfere with the right of the 
 debtor to select the depreciated money .^ And the selection 
 of the more valuable kind of legal tender, does not entitle 
 the debtor to any discount in compensation of the differ- 
 ence in value between the coin and the depreciated treasury 
 notes.2 But if the government has changed the intrinsic 
 value of the coins, without changing their denominations 
 after a contract has been made, the contract can only be 
 fully performed by a tender of the value of the given 
 amount of money, according to the old standard of value. ^ 
 
 But if the contract calls for any particular kind of legal 
 tender, it can only be satisfied by a tender of that kind, 
 and the holder may refuse to receive any other.* If, how- 
 ever, in such a case the depreciated treasury notes are tend- 
 ered and accepted, in payment of the debt, the creditor 
 can only require a payment to him of the amount called for 
 by the contract and cannot insist upon the payment of a 
 premium, to compensate the difference in value between the 
 gold-and the treasury notes. ^ 
 
 While nothing but money can be lawfully tendered in 
 payment of a bill or note * the parties themselves may agree 
 
 1 KiUough V. Alford, 32 Tex. 457. 
 
 2 Bush v. Baldrey, II Allen, 367. 
 
 3 Pilkinton •«. Corns, of Claims, 2 Knapp, 17; Da Costa v. Cole, Holt, 
 405; Skin., 272; Field, J., in Jnillard v. Greenman, 110 U. S. 465. 
 
 * Bronson v. Rhodes, 7 Wall. 245; Butler v. Horwitz, 7 Wall. 259; 
 Dewing t). Scars, 11 Wall. 379; Trebilock ». Wilson, 12 Wall. 687; Phil- 
 lips V. Dugan, 21 Ohio St. 46(5; McGoon v. Shirk, 54 111. 408 (overruling 
 Humphrey «. Clement, 44 111. 299; Whetstone v. Colley, 36 111. 328); 
 Smith V. Wood, 37 Tex. 620; Luck v. Falkner, 25 Cal. 404; Higgins ». 
 B. E. & Am. & M. Co. 27 Cal. 158; Stark o. Coffin, 105 Mass. 335; Cur- 
 rier V. Davis, 111 Mass. 480; Independent Ins. Co. v. Thomas, 104 Mass. 
 192; Warren v. Franklin Ins. Co., 104 Mass. 518. Bnt see Wood v. 
 Bullens, 6 Allen, 618; KiUough v. Alford, 32 Tex. 457, where the paper 
 being payable " in gold coin or the equivalent thereof in the United 
 States legal tender notes," was held to be discharged by the payment 
 of the given number of dollars in United States treasury notes. 
 
 * Oilman v. County of Douglass, 6 Nev. 27. 
 6 See ante, § 140. 
 
 198 
 
CH. XIl] PAYMENT AND TENDER. § 144 
 
 upon the use of something else in payment.^ But an agent 
 cannot, without explicit authority, receive anything but 
 money in liquidation of a debt.^ 
 
 It is not necessary, however, that the money should ex- 
 change hands. The mere giving of credit by the payor to 
 the payee, will constitute a payment, if accepted.^ The 
 effect of making payment with checks is discussed else- 
 where.^ 
 
 § 144. Payment by note or bill, wben absolute or con- 
 ditional. — This has been a much mooted question in the 
 courts, and, as is usual, when the reasons for the opposing 
 theories are themselves doubtful, the courts are found to 
 have rendered contradictory decisions. A terse statement 
 will be given of the various conclusions reached, but if it 
 is at all possible to formulate a rule that will approximately 
 reconcile the otherwise conflicting decisions, it would be 
 that a private bill or note, — excluding bank-notes and gov- 
 ernment treasury notes which are currency and pass as and 
 for money, — when given in payment of a debt, does not 
 constitute an absolute payment, until it itself has been paid, 
 unless the parties have expressly or impliedly agreed that 
 the note or bill shall be taken in absolute satisfaction of the 
 debt ; and this is true, although the bill or note is given in 
 payment of a debt of a different character, such as an open 
 account, or a judgment. But the decisions will be found 
 at times to run connter to this rule. 
 
 It has thus been decided in most of the courts, that if the 
 debtor gives his own note or bill in liquidation of the debt. 
 
 1 See post, §§ lU-146, 150, 151. 
 
 2 T>e Mets v. Dogon, 53 N. Y. 635; Moye v. Cogdell, 69 N. C. 93; Her- 
 rimont). Shomon, 24 Kan. 387; Bank of Kansas City ». Mills, 24 Kan. 
 610; Maddurs. Bevan, 39 Md. 485; Speur v. Ledergerber, 56 Mo. 465; 
 Chapman v. Cqwles, 41 Ala. 103. 
 
 3 Savage v. Merle, 5 Pick. 83; Pacific Bank v. Mitchell, 9 Met. 297. 
 * See post, § 145. 
 
 199 
 
§ 144 PAYMENT AND TENDER. [CH. XII. 
 
 it will be a conditional payment, whether the debt is pre- 
 cedent,^ or contemporaneous, as where one's note is given 
 
 1 Clark V. Young, 1 Cranch, 181 ; Bank of United States v. Daniel, 12 
 Pet. 32; Peters v. Beverly, 10 Pet. 532; Downey v. Hicks, 14 How. 240; 
 Tiie Kimball, 8 Wall. 45; Sheehy v. Mandeville, 6 Cranch, 253; McGuire 
 V. Gadsby, 3 Call, 324; Middlesex v. Thomas, 5 C. E. Green, 39; Clopper 
 ■u. Union Bank, 7 Har. & J. 120; Miller v. Lumsden, 16 111. 161; Archi- 
 bald c. Argall, 53 111. 307; Logan v. Attix, 7 Iowa, 77; Davis' Estate, 6 
 Whart. 537; Jones v. Strawhan, 4 Watts & S. 261 ; Mclntyre v. Kennedy, 
 29 Pa. St. 448; Merrick v. Boury, 5 Ohio St. 60; Sutliffe v. Atwood, 15 
 Ohio St. 186; Cole v. Sackett, 1 Hill, 516; Winsted Bank v. Webb, 39 N. 
 Y. 323; Hawley v. Foote, 19 Wend. 516; Frisbie v. Lamed, 21 Wend. 
 450; Smith v. Miller, 43 N. Y. 171; Board of Education v. Fonda, 77 N. 
 Y. 350; McNiel v. McCamley, 6 Tex. 163; Marshall o. Marshall, 42 Ala. 
 149; Myatts v. Bell, 41 Ala. 222; Stam v. Kerr, 31 Miss. 199; Guion ». 
 Doherty, 43 Miss. 538; Smith v. Owens, 21 Cal. 11; Poole v. Rice, 9 W. 
 Va. 73; Feamster v. Withrow, 12 W. Va. 611; Walsh v. Lennon, 98 111. 
 27; Crawford v. Roberts, 60 Cal. 236; Wilbur v. Jernegan, 11 R. I. 113; 
 Nightingale v. Chafee, 11 R. I. 609; McCluny v. Jacksoa, 6 Gratt. 96; 
 Lewis V. Davison, 29 Gratt. 226; Armistead v. Ward, 2 Pat. & H. 515; 
 Glenn v. Smith, 2 Gill & J. 612; Walton v. Bemiss, 16 La. 140; McLaren 
 V. Hall, 26 Iowa, 298; Steamboat Charlotte v. Hammond, 9 Mo. 63; 
 Yarnell v. Anderson, 14 Mo. 619; Doebling v. Loss, 40 Mo. 150; Dougal 
 V. Cowles, 5 Day, 511; Burdick v. Green, 15 Johns. 249; Gordon v. Price, 
 10 Ired. 385; Union Bank v. Smiser, 1 Sneed, 501 ; Welch v. Allington, 23 
 Cal, 322; Breitung v. Lindauer, 37 Mich. 217; Smith v. Chester, 1 T. R. 
 655; Price v. Price, 16 M. &. W.232; Richardson v. Rickman, 5 T. R. 517; 
 Day V. Thompson, 65 Ala. 269; Costar v. Davies, 8 Ark, 213; Brugman v. 
 McGuire, 32 Arls. 733; Biewster v. Bours, 8 Cal. 506; Griffith v. Grogan, 
 12 Cal. 321; Brown v. Olmsted, 50 Cal. 162; Bill v. Porter, 9 Conn. 23; 
 Clark V. Savage, 20 Conn. 258; May v. Gamble, 14 Fla. 467; Morrison v. 
 Smith, 81 111. 221; Wilhelm u. Schmidt, 84 111. 183; Kappes v. White 
 Hard Wood Lumber Co., 1 Bradw. 280; Edwards v. Trulock, 37 Iowa, 
 244; Farwell v. Grier, 38 Iowa, 83; Berry v. Griffin, 10 Md. 27; Morrison 
 V. Welty, 18 Md. 169; Haines v. Pearce, 41 Md. 221 ; Case v. Leass, 44 
 Mich. 195; Brown v. Dunokel, 46 Mich. 29; Lear v. Friedlander, 45 Miss. 
 559; Partee I!. Bedford, 51 Miss. 84; Wadlington ». Covert, 51 Miss. 631; 
 Appelton V. Kennon, 19 Mo. 637; McMurray k. Taylor, 30 Mo. 263; 
 Howard II. Jones, 33 Mo. 583; Leabo v. Goods, 67 Mo. 126; Hughes ». 
 Israel, 73 Mo. 538; Young v. Hibbs, 5 Neb. 433; JafErey v. Cornish, 10 N. 
 H. 505; Johnson v. Cleaves, 15 N. H. 332; Foster v. Hill, 36 N. H. 526; 
 Freeholders of Middlesex v. Thomas, 20 N. J. Eq. 39; Ayers v. Van 
 Lien, 5 N. J. L. 765; Emerine i;. O'Brien, 36 Ohio St. 491 ; Sweet w. James, 
 2 R. I. 271 ; Wheeler I). Schroeder, 4 R. I. 383; Hughes v. Wheeler, 8 Cow. 
 200 
 
CH. XII.J PAYMENT AND TENDER. § 144 
 
 in immediate settlement of some purchase or other con- 
 tract.^ 
 
 Where a stranger's note or bill is transferred in satisfac- 
 tion of a debt, the cases are still more at variance. Where 
 such a note or bill is given for a precedent debt, it is very 
 
 77; Tobey v. Barber, 5 Johns. 68; Schermerhorn v. Loines, 7 Johns. 313; 
 Gregory v. Thomas, 20 Wend. 17; Waydell v. Luer, 5 Hill, 44; Jagger 
 Iron Co. V. Walker, 76 N. Y. 521; Feldman v. Beier, 78 N. Y. 293; Nat. 
 Bank of Newburgh v. Bigler, 83 N. Y. 51; Thompson v. British No. Am. 
 Bank, 82 N. Y. 1 ; Parrott v. Colby, 71 N. Y. 597; Vail v. Thomas, 4 N. Y. 
 312; Spear v. Atkinson, 1 Ired. L. 262; Matasce v. Hughes, 7 Oreg. 60; 
 McGinn v. Holmes, 2 Watts, 121; Weakley v. Bells, 9 Watts, 273 ; Leas v. 
 James, 10 S. & R. 307; Brown v. Scott, 51 Pa. St. 357; League v. Waring, 
 85 Pa. St. 244; Hunter v. Moue, 98 Pa. St. 13; Watson ii. Owens, 1 Rich. 
 L. Ill; Kelsey v. Rosborongh, 2 Rich. 241; Bank v. Bobo, 9 Rich. 31; 
 Mars V. Conner, 9 S. C. 70; Dunlap v. Shanklin, 10 W. Va. 662; Eastman 
 V. Porter, 14 Wis. 39 ; Ford v. Mitchell, 15 Wis. 3C8 : Lindsey v. McClelland, 
 18 Wis. 481; Mehlbergu.Tisher, 24 Wis. 607; Paine ». Voorhees, 26 Wis. 
 526; Matteson v. Ellsworth, 33 Wis. 488. But in several of the States, 
 it Is held that the taking of a bill or note is presumptively an absolute 
 payment, but parol evidence is admissible to rebut this presumption. 
 Ely V. James, 123 Mass. 36; Parkliam Sewing M. Co. v. Brock, 113 Mass. 
 194; Gaskins B. Well, 15Ind. 253; Smith u. Bettger, C8 Ind. 254; Hutchins 
 V. Olcutt, 4 Vt. 549 ; Torrey v. Baxter, 13 Vt. 452 ; Dickinson v. King, 28 
 Vt. 378; Farr v. Stephens, 26 Vt. 299; Varner v. Nobleborough, 2 Greenl. 
 124; Gilmore v. Bussey, 12 Me. 418; Gooding v. Morgan, 37 Me. 619; 
 Ward V. Bourne, 56 Me. 161; Thatcher v. Dinsmore, 5 Mass. 302; Chap- 
 man V. Durant, 10 Mass. 51; Wood v. Bodwell, 12 Mass. 289; Dodge v. 
 Emerson, 131 Mass. 467; Green v. Russell, 132 Mass. 53G; Rowe v. Col- 
 lier, 25 Tex. 252; Hunt v. Boyd, 2 La. 109; Butts v. Dean, 2 Met. 76; 
 House V. Alexander, 2 Met. 157; Curtis v. Hubbard, 9 Met. 328; Meldege 
 V. Boston Iron Co., 5 Cush. 170; Connecticut Trust Co. v. Melendy, 119 
 Mass. 449 ; Descadillas v. Harris, 3 Greenl. 298 ; Fowler v. Ludwig, 34 
 Me. 455; Kidder w. Knox, 48 Me. 551; Paine i). Dwinell, 53 Me. 52; Mehan 
 V. Thompson, 71 Me. 492; Bunker v. Barron, 3 New Eng. Rep. 597; 
 Wait V. Brewster, 31 Vt. 516; Arnold v. Sprague, 34 Vt. 402; Welmet v. 
 Mississquoi Lime Co., 46 Vt. 458; Jewett v. Pleat, 43 Ind. 368; Maxwell 
 V. Day, 45 Ind. 509 ; Hill v. Sloan, 59 Ind. 181 ; Schneider v. Kolthoff, 59 
 Ind. 568; Teal v. Spangler, 72 Ind. 380; Krutsinger v. Brown, 72 Ind. 
 466. 
 
 1 2 Am. Lead. Cas. 263; Sheehy v. Mandeville, 6 Cranch, 253; Story 
 on Notes, § 104. But see contra 2 Parsons' N. & B. 157, where Mr. 
 Parsons pronounces the transaction " to be substantially selling a note 
 by barter, or exchanging it for goods." 
 
 201 
 
§ 1^4 PAYMENT AND TENDEK. [CH. XII. 
 
 generally held to be only a conditional payment, whether 
 the paper is payable to order and indorsed, or is payable 
 to bearer and unindorsed, by the debtor.^ But where the 
 note or bill of a stranger is given in satisfaction of a con- 
 temporaneous debt, it is held to be an absolute payment, if 
 it is payable to bearer and is transferred without indorse- 
 ment ; ^ and a conditional payment, if it is payable to order 
 and is transferred by indorsement, the reason for this dis- 
 tinction being that the conditional liability of an indorser is 
 inconsistent with the presumption of an absolute payment.^ 
 But the parties to the contract may agree in any of these 
 cases that the third person's note is to be taken in absolute 
 payment of the debt. And it would seem to be an absolute 
 payment, whether the note itself be paid at maturity, or 
 not.* 
 
 1 Camidge v. Allenby, 6 B. & C. 373; Wart v. Woolley, 3 B. & C. 439; 
 s. c. 5 Dow. & K. 374; Swinyard v. Boyes, 5 M. & S. 62; Ex parte Black- 
 burne, 10 Ves. 204; Leaugue u. Wasinn, 85 Pa. St. 244; M'Lughan v. 
 Bovard, 4 Watts, 315; Downey u. Hicks, 14 How. 249; Crane ». McDonald, 
 45 Barb. 355; Gibson v. Tobey, 53 Barb. 195; Noel v. Murray, 3 Kern. 
 169; 1 Duer, 388; Gordon v. Price, 10 Ired. L. 388; Gallagher v. Roberts, 
 2 Wash. C. C. 193; Johnson v. Weed, 9 Jolins. 310; Vail v. Poster, 4 N. 
 Y. 312. But see contra Dennis v. Williams, 40 Ala. €33; Elyi>. James, 
 123 Mass. 37. In Stain v. Ker, 31 Miss. 199; Soffe v. Gallagher, 3 E. D. 
 Smith, 507, held to be absolute payment, where it is transferred with in- 
 dorsement. Contra Cook v. Beech, 10 Humph. 413. 
 
 2 Breed v. Cook, 15 Johns. 242; Bank of England v. Newman, 1 Ld. 
 Raym. 442; Ex parte Blackburne, 10 Ves. 204; Fydell ». Clarke, 1 Esp. 
 447; Tobey v. Barber, 5 Jolms. 68; Gibson v. Tobey, 53 Barb. 195; Wliit. 
 beck II. Vanners, 11 Johns. 409; Noel v. Murray, 1 Duer, 388;- Camidge v. 
 Allenby, 6 B. & C. 373; 2 Parsons' N. & B. 156, 183. But presumption 
 may be rebutted by parol evidence. Torrey v. Hadley, 27 Barb. 196 ; 
 Porter v. Talcott, 1 Cow. 381; Eew v. Barber, 3 Cow. 279; Gordon «. 
 Price, 10 Ired. L. 388. 
 
 3 Monroe v. HufE, 5 Den. 369; Sofle v. Gallagher, 3 E. D. Smith, 507; 
 Boyd V. Hitchcock, 20 Johns. 76 ; Shriner v. Keller, 25 Pa. St. 61 ; 2 Am. 
 Lead Cas. 203; 2 Parsons' N. & B. 159. 
 
 * Conkling v. King, 10 N. Y. 440; Noel v. Murray, 13 N. Y. 167; N. Y. 
 State Bank v. Fletcher, 5 Wend. 85; Torray v. Hadley, 27 Barb. 192; 
 Wise V. Chase, 43 N. Y. 159 ; Bicknall v. Waterman, 5 R. I. 48. But see, 
 202 
 
CH. XII. J PAYMENT AND TENDER. § 146 
 
 § 145. Payment by checks. — Where a check is trans- 
 f erred in settlement of a debt, the implication of law is that 
 it is not to constitute sin absolute discharge of the debt, 
 until the check is presented by the creditor and paid or cer- 
 tified on such presentment, 1 or it is shown that the creditor 
 failed to make a presentment of the check within a reason- 
 able time, and that the bank or drawee subsequently fails to 
 the damage of the drawer.^ But, as in the ease of pay- 
 ment by notes, the parties may agree that the check shall 
 be taken as an absolute payment of the debt, and it will 
 then have that effect.' 
 
 § 146. Presumptions in respect to absolute and con- 
 ditional payment, how rebutted. — It has been already in- 
 timated that the presumption of law, in respect to the 
 character of the payment, when it is made by a note or 
 bill, is not conclusive, but may be rebutted by proof of a 
 contrary intention, whether the presumption was in favor 
 
 contra, Benedict v. Field, 16 N. Y. 595; Roberts v. Fislier, 43 N. Y. 159; 
 Roget V. Merritt, 2 Gaines, 117. 
 
 1 People V. Baker, 20 Wend. 602 ; Ocean Tow Boat Co. v. Ship Ophelia, 
 11 La. Ann. 28; Phillips v. Bullard, 58 Ga. 256; Tapley d. Marstens, 8 T. 
 R. 451; Blair & Hoge v. Wilson, 28 Gratt. 165; Currie v. Misa, L. R. 10 
 Exch. 153 ; Small v. Franlclin Mining Co., 99 Mass. 277 ; Bradford v. Fox- 
 38 N. Y. 289 ; Smith v. Miller, 43 N. Y. 151 ; 52 N. Y. 546 ; Davison v. City 
 Bank, 57 N. Y. 82; Sweet v. Titus, 11 N. Y. S. C. (4 Hun) 639; Everett 
 V. Collins, 2 Camp. 515; Hearth v. Rhodes, 66 111. 351; Kerneyerc. New- 
 let, 14 Kan. 164; Phillips v. Bullard, 58 Ga. 256; De Yampert v. Brown, 
 28 Ark. 166; Mordis v. Kennedy, 23 Kan. 408; Freeholders of Middlesex 
 D.Thomas,20.N. J.Eq. 39; Broughton ». Silloway, 114Mass. 71 ; Thomp- 
 sons. Bank, 82 N. Y. 1. 
 
 2 Taylor v. Wilson, 11 Met. 44; Hodgson v. Barrett, 33 Ohio St. 63; 
 Syracuse, &c., R. R. Co. v. Collins, 3 Lans. 33; Warriuer v. The People, 
 74 111. 346; Mclntyre u. Kennedy, 29 Pa. St. 448; Weddigen v. Boston 
 Electric, &c., Co., 100 Mass. 422; Redpath v. Kolfage, 16 Up. Can. Q. B. 
 433 ; Mehlherg v. Fisher, 24 Wis. 607 ; Smith v. Miller, 43 N. Y. 171 ; Mc- 
 lntyre V. Kennedy, 29 Pa. St. 448 ; Thayer v. Peck, 93 111. 357 ; Getchell v. 
 Chase, 124 Mass. 366; Cushman «. Libby, 15Gray, 358; Barnard u. Graves, 
 16 Pick. 41. 
 
 ' Blair v. Wilson, 28 Gratt. 165. 
 
 203 
 
§ 146 PAYMENT AND TENDER. [CH. XII. 
 
 of its absolute or conditional character. In some of the 
 cases it has been held that the presumption could be re- 
 butted by proof of an express agreement to the contrary, 
 especially to rebut the presumption of a conditional pay- 
 ment. ^ But the better opinion is that the agreement may 
 be implied from the surrounding circumstances.^ As a 
 rule, however, the mere acknowledgment of payment in 
 full, or of payment in general, could not be sufficient to 
 rebut the presumption of conditional payment without the 
 aid of corroborating circumstances.^ But it has been held 
 that the words "received and accepted in satisfaction," 
 coupled with the giving of security in the shape of an in- 
 dorsement by a third person, will establish the presump- 
 tion of an absolute p.iyment.* The mere surrender of a 
 security is not sufficient.^ If a creditor accepts the bill of 
 
 1 Muldon ». Whitlock, 1 Cow. 290; Haysu. Stone, 7 Hill, 128; Dougal 
 V. Cowles, 5 Day, 511; Glenn i). Smith, 2. Gill & J. 493; Conkling i). King, 
 10 Barb. 372. See Booth v. Smith, 3 Wend. 66; Boyd v. Hitchcock, 20 
 Johns. 76; Butts v. Dean, 2 Met. 76; Appleton v. Parker, 15 Gray, 173; 
 FoUettev. Steele, 16 Vt. 30 ; Thompson tJ. Wilson, 27 Ind. 370; Comstock 
 u. Smith, 22 Me. 262; Shumway v. Reid, 34 Me. 660; Iowa Co. v. Foster, 
 49 Iowa, 676. 
 
 2 Miller v. Lumsden, 16111. 161; Gordon v. Price, 10 Ired. 385; Hart 
 V. Boiler, 15 Serg. & R. 162; Johnson v. Cleaves, 15 N. H. 332; Merrick 
 V. Boury, 4 Ohio St. 60; Tulford u. Johnson, 15 Ala. 384; Berry v. 
 Griffin, 10 Md. 27; Slocumb v. Holmes, 1 How. (Miss.) 139; White v. 
 Howard, 1 Sandf. 81; Harris v. Lindsay, 4 Wash. C. C. 98, 271. 
 
 3 Maillard v. Duke of Argyle, 6 Man. & G. 40; Muldon v. Whitlock, 1 
 Cow. 290; Putnam v. Lewis, 8 Johns. 389; Tobey v. Barber, 5 Johns. 
 68; McLughan v. Bovard, 4 Watts, 308; Hotchin u. Secor, 8 Mich. 494; 
 Dudgeon u. Haggart, 17 Mich, 273; Burchard v. Frazer, 23 Mich. 228; 
 Berry v. Griffin, 10 Md. 27; Glenn v. Smith, 2 Gill & J. 494; Steamboat 
 Charlotte v. Hammond, 9 Mo. 58; Gardner v. Gorham, 1 Dougl. (Mich.) 
 507; Feamster 1). Withrow, 12 W. Va. 651 ; Maze v. Miller, 1 Wash. C. C. 
 328. But see, contra, Barron v. How, 13 Mart. (La.) 144. A receipt "in 
 full when paid," can only mean conditional payment. Dayton v. Trull, 
 23 Wend. 345. 
 
 * Morris v. Harvey, 76 Va. 726. 
 
 fi Butts V. Dean, 2 Met. 76 ; Pomeroy v. Eice, 16 Pick. 22 ; Fowler v. 
 Ludwig, 34 Me. 455. 
 204 
 
CH. XII.] PAYMENT AND TENDER. § 147 
 
 a third person in payment, when he had the option of tak- 
 ing cash it is held to be an absolute payment, and the 
 original debtor is discharged. ^ But it is only a conditional 
 payment if the creditor has not the option of taking cash.^ 
 As a matter of course, any fraudulent misrepresentation 
 of material facts, in making payments with bills and notes, 
 will render the transaction entirely void, and revive the 
 rights and liabilities of the parties on the original debt.^ 
 
 § 147. Right of action suspended by taking bill or note 
 in payment of debt. — Although it is generally held that 
 the acceptance of a bill or note, in satisfaction of a debt, 
 constitutes only conditional payment, it suspends all right 
 of maintaining actions on the original debt, as long as the 
 note or bill given in payment is not matured; the object of 
 the suspension being the prevention of the maintenance of 
 separate actions upon l)oth debts, and a recovery ou both, 
 in case the note or bill should be negotiated before maturity.* 
 When the note or bill falls due, the right of action is re- 
 vived, and the creditor has the right to elect on which 
 liability to bring suit.^ But if he brings suit on the original 
 
 1 Strong V. Hart, 6 B. & C. (13 C. C. L. R.) 160. 
 
 2 Marsh v. Pedder, i Camp. 257; Taylor v. Briggs, M. & M. 28; Rob- 
 inson V. Read, 9 B. & C. (17 E. C. L. R.) 444; Swinyard v. Bowes, 5 M. 
 & S. 62. 
 
 s Hawse v. Crowe, 1 R. & M. 414; Bayard v. Shunk, 1 Watts & S. 94; 
 Lowrey v. Murrell, 2 Port. 280; Long ti. SpruU, 7 Jones L. 96; Gurney 
 V. "Womersley, 4 E. & B. (82 Eng. C. L. R.) 133 ; Popley v. Ashlin, 6 Mod. 
 147; Holt, 121; Bridge v. Batchelder, 9 Allen, 394; Pierce ti. Drake, 15 
 Johns. 476; Martin v. Pennock, 2 Barr, 376; Brown v. Montgomery, 20 
 N. T. 287; Delaware Bank v. Jarvis, 20 N. Y. 226; Fenn u. Harrison, 3 
 T. R. 759; Eoget v. Merrill, 2 Cal. 117. 
 
 * Black V. Zacharie, 8 How. 483; Putnam v. Lewis, 8 Johns. 389; 
 StedmaniJ.Gooch, lEsp. 3; Griffith i>. Owen, 13 M. &W. 58; Price u. Price, 
 16 M. & W. 231; Armistead v. Ward, 2 Pat. & H. 504; Van Epps v. 
 Dillaye, 5 Barb. 244; Phoenix Ins. Co. v. Allen, 11 Mich. 501; Kearslake 
 V. Morgan, 5 T. R. 513; Maier v. Canovan, 57 How Pr. 504. 
 
 ' Owenson B. Morse, 7 T. R. 50; Bank of Ohio Valleys. Lockwood, 
 
 205 
 
§ 148 PAYMENT AND TENDER. [cH. XII. 
 
 debt, he must either produce in court and surrender the 
 note or bill given in payment of the debt sued on, or satis- 
 factorily account for its absence, in order to protect the 
 debtor against a negotiation of the note or bill, before 
 maturity, and a consequent liability upon it to some innocent 
 purchaser.^ 
 
 In order that the taking of the bill or note may operate 
 as a suspension of the right of action on the original debt, 
 the entire agreement in respect to the satisfaction of the 
 debt must have been complied with. If the agreement is 
 in part unperformed, as where the agreement was to give 
 a note for the debt, and to pay the costs of a suit begun on 
 the original debt, the failure to pay the costs would enable 
 the creditor to proceed with his suit.^ 
 
 § 148. Duties of holder of bill or note taken in pay- 
 ment. — Wherever a bill or note is given in payment of a 
 debt, whether ptecedent or contemporaneous, and the debtor 
 becomes liable on such a bill or note as a drawer or in- 
 dorser, the failure to exercise due diligence in the present- 
 ment for payment, and the giving notice of dishonor, will, 
 according to the weight of authority, not only discharge the 
 debtor of his liability as drawer or indorser, but, also, of his 
 liability on the original debt.-' But there are some author- 
 
 13 W. Va. 426; Stedman v. Gooch, 1 Esp. 4; Tobey v. Barber, 6 Johns. 
 68; Price 1). Price, 16 M. & W. 231. 
 
 1 Cole V. Sackett, 1 Hill, 516; Tobey v. Barber, 5 Johns. 66 ; Alcock v. 
 Hopkins, 6 Cush. 484; Miller v. Lumsden, 16 111. 161; Jones v. Savage, 
 6 Wend. 658; Dayton v. Trull, 23 Wend. 345; Smith v. Lockwood, 10 
 Johns. 367; Eaymond u. Merchant, 3 Cow. 150; Lazier v. Neviu, 3 Hag- 
 ans (W.Va.), 622; Bank of Ohio Valley v. Lockwood, 13 W. Va. 427; 
 Matthews v. Dare, 20 Md. 248; Hays v. McClurg, 4 "Watts, 452; Harris 
 V. Johnson, 3 Cranch, 311. 
 
 2 Putnam v. Lewis, 8 Johns. 389. The same conclusion was reached, 
 notwithstanding the new note had been negotiated. Norris v. Ayleete, 2 
 Camp. 328. Of course payment of the new note or bill would satisfy the 
 debt itself. Dillon v. Kimmer, 1 Bing. 100. 
 
 3 Mauney v, Coit, 80 N- C. 300; Beriy v. Bridges, 3 Taunt. 130; Day- 
 
 206 
 
CH. XII. J PAYMENT AKD TENDER. § 149 
 
 ities which mriintain that the debtor should not be dis- 
 charged of his liability on the original debt, unless he has 
 suffered an actual loss in consequence of the laches of the 
 creditor in respect to presentment and notice,^ applying to 
 that case, the same rule which determines the liability of 
 the debtor, when the bill or note is payable to bearer, and is 
 transferred by delivery and without indorsement. In every 
 such case the liability on the original debt is extinguished 
 only when some loss occurs from the negligence of the 
 creditor in presenting the bill or note for payment, and in 
 ffivins notice of dishonor.^ 
 
 -"3 
 
 § 149. Payment in counterfeit or worthless bills. — If 
 
 a supposed treasury note, bank-bill or private note be coun- 
 terfeit, and it be offered and received in payment of a debt, 
 it is not a vahd payment, and the debtor will be obliged to 
 make a second payment. There would in all such cases be 
 a failure of consideration, since the creditor did not get 
 what he agreed to take in payment, viz. : a treasury note. 
 
 ton V. Trull, 23 Wend. 345; Smith v. Miller, 43 N. T. 171; s. c. 52 N. T. 
 546; Betterton v- Roope, 3 Lee (Tenn.), 220; Phoenix Ins. Co. v. Allen, 
 II Mich. 501; Blanchard v. Tittavawassee Boom Co., 40 MiCh. 566; 
 Mehlbergu. Fisher, 24 Wis. 607; Allan v. Eldred, 50 Wis. 136; Middle- 
 sex V. Thomas, 5 C. E. Green, 39; Booth v. Smith, 3 Wend. 60; Jenni- 
 son V. Parker, 7 Mich. 3.';5; Tobey v. Barber, 6 Johns. 68; Peacoclt v. 
 Purcell, 14 C. B. (n. s.) 728; Huston u. Weber, 3 T. &C.147; 7 Hun, 120. 
 The same conclusion is reached, where the note or bill is transferred as 
 security Instead of in payment of the original debt. Peacock ». Purcell, 
 supra; Betterton v. Roope, supra; Haines v. Pearce, 41 Md. 221; Law- 
 rence V. McCalmont, 2 How. 426; Lee v. Baldwin, 10 Ga. 208; Roberts v. 
 Thompson, 14 Ohio, 1; Hamilton v. Cunningham, 2 Brock. 350. 
 
 1 Kephart v. Butcher, 17 Iowa, 240; Gallagher's Exrs. v. Roberts, 2 
 Wash. C. C. 191; 2 Am. Lead Cas. 259, 260. See Brooks v. Elgin, 6 Gill, 
 254; Hamilton v. Cunningham, 2 Brock. 350; Cook v. Buck, 10 Hump. 
 412. 
 
 2 Story on Bills, § 109; Story on Notes, § 117; Dayton v. Trull, 23 
 Wend. 345; Tobey v. Barber, 5 Johns. 68. The burden of proof is on 
 the defendant to show the laches and the damage flowing from the same. 
 Bishop V. Rowe, 3 M. & Sel, 362; Goodwin iJ. Coates, 1 M. & R. 221. 
 
 207 
 
§ 149 tAYJUENf AND TENDEfi. [CH. XII. 
 
 bank-bill, etc. , as the case may be. What he received was 
 something else, viz.: a piece of worthless paper.' Whether 
 the counterfeit bill must be returned before a second pay. 
 ment can be demanded is somewhat doubtful. According 
 to some of the authorities, it is sufficient if the counterfeit 
 bill is tendered back at the trial, if it is at all necessary to 
 return it.^ But the weight of authority seems to require 
 tiiat the counterfeit biJl must be returned or the debtor 
 notified within a reasonable time, in order to demand a sec- 
 ond payment.^ 
 
 If an agent innocently or knowingly receives payment 
 in counterfeit bills, he ca,nnot relieve himself of liability to 
 his principal by tendering him the counterfeit bills. He 
 must make payment in genuine bills.* 
 
 If the bank-bills are genuine, but have become worthless 
 or depreciated in value in consequence of the insolvency of 
 the bank or other body corporate which issued them, it is 
 doubtful whether the transfer and receipt of them in good 
 faith would operate as an absolute payment. Some of the 
 authorities maintain that the depreciated value of the bills 
 would have no effect on the payment made with them, if 
 the transaction was conducted in good faith by both parties, 
 the creditor having got what he had agreed to take in pay- 
 ment of his claim. ^ But the weight of authority is against 
 
 1 Markle v. Hatfield, 2 Johns. 455; Eagle Bank v. Smith, 5 Conn. 71 
 Goodrich v. Tracy, 43 Yt. 314; Eraerine v. O'Brien, 36 Ohio St. 496 
 Ritter v. Singmaster, 73 Pa. St. 400; Eamsdale v. Horton, 3 Pa. St. 330 
 Baker v. Bonestell, 2 Hilt. 397 ; Hargrave v. Dusenberry, 2 Hawks, 326 
 Young t;. Adams, 6 Mass. 182; Semmersu. Wilson, 5 Cranch C. C. 285. 
 
 2 Brewster v. Burnett, 125 Mass. 68; Kent v. Bornsteiu, 12 Allen, 342. 
 s Atwood V. Cornwall, 28 Mich. 342; Pindall v. Northwestern Bank, 7 
 
 Leigh, 617; Thomas v. Todd, 6 Hill, 340 ; Kenny v. First Nat. Bank, 50 
 Barb. 114; Cruder v. Pennock, 14 S. & R. Simms v. Clarke, 11 111. 137; 
 Vflngate v. Neldlinger, 50 Ind. 526; Samuels v. King, 50 Ind. 527. It is 
 a question for the jury, what is a reasonable time. Burrill v. Water- 
 town Bank, 51 Barb. 165. 
 
 * United States v. Morgan, 11 How. 154. 
 
 "Young V.Adams, 6 Mass. 185; Lowrey v. Murrell, 2 Port. 280; 
 208 
 
CH. XII.] PAYMENT AND TENBER. § 150 
 
 this view, probably, because the courts consider it more 
 likely that the passing of the depreciated bills was attended 
 with bad faith .^ 
 
 § 150. Payment iii specific articles. — Sometimes the 
 contract calls for the payment of the price in something 
 else than money or currency, in other words, in some other 
 goods. But this transaction is to be distinguished from an 
 exchange of goods, inasmuch as the subject-matter of the 
 sale is sold for a price, but the price is to be paid in other 
 goods ; whereas, in an exchange, one piece or lot of goods 
 is transferred in consideration of the receipt of another, 
 and there is no stipulation of a price. Where the contract 
 calls for the payment of the price in goods, the goods 
 must be tendered in strict accordance with the terms of 
 the contract, in order that their delivery may constitute a 
 payment of the price. If the contract is broken by a 
 failure of the buyer to deliver the stipulated articles in 
 payment of the price, the vendor does not have to sue for 
 their delivery, but for goods sold and delivered and re- 
 cover the price in money, as if the original transaction 
 had been a sale for cash.^ And it is doubtful whether 
 the vendor could recover anything else than the price 
 and the interest thereon. Some of the authorities main- 
 tain that he cannot,^ while others hold that he may 
 
 Ware v. Street, 2 Head, 609; Corbit ». Bank of Smyrna, 2 Harr. 235; 
 Edmunds v. Digges, 1 Gratt. 359; Scruggs v. Gass, 8 Yerg. 175; Bayard 
 V, Shunt, 1 Watts & S. 92. 
 
 1 Lightbody v. Ontario Bank, 11 Wend. 9; 13 Wend. 101; Benedict v. 
 Field, 4 Duer, 162; Fogg v. Sawyer, 9 N. H. 365; Harley v. Thornton, 2 
 Hill (S. C), 509; Westfall v. Braley, 10 Ohio St. 188; Magee v. Carmack, 
 13 111. 289; Aldrich v. Jackson, 5 R. I. 218; Honore v. Colmesnil, 1 J. J. 
 Marsh 523; Harris v. Hanover Nat. Bank, 15 Fed. Eep. 786; Roberts v. 
 Fisher, 43 N. Y. 159; Frontier Bank v. Morse, 22 Me. 88; Townsends v. 
 Bank of Racine, 7 Wis. 185; Wainright v. Webster, 11 Vt. 576. 
 
 ' Perry v. Smith, 22 Vt. 301; Stone u. Nichols, 43 Mich. 16; Roberts 
 V. Beatty, 2 Pen. & Watts, 63; Church v. Feterow, 2 Pen. & Watts, 301. 
 
 8 Heywood v, Heywood, 42 Me. 229 ; Smith v. Smith, 2 Johns. 253 ; 
 
 14 209 
 
§ 152 PAYMENT AND TENDER. [CH. XII. 
 
 recover for the value of the goods at the time and place of 
 delivery.^ 
 
 § 151. Payment bj' set-off Inasmuch as a sale ordi- 
 narily inlplies that the goods shall be paid for in money, 
 the buyer cannot propose, against the consent of the seller, 
 to pay the price by a set-off of a claim or debt which he, 
 the buyer, holds against the seller. And if has been held 
 that if the buyer attempts such a set-off, and refuses to 
 make payment of the price, it is a fraud on the seller, and 
 he may reclaim the goods .^ 
 
 § 152. Appropriation of payments. — When one is 
 indebted to another on two or more accounts or instru- 
 ments of indebtedness, and payment is made in amounts 
 not sufficient to satisfy all, it is often difficult to determine 
 in detail to which debt the payment should be appropriated. 
 But the following general rules may be deduced from the 
 adjudications upon the subject : — 
 
 1. When the payment is voluntary, and is not made 
 under the stress of legal process, the debtor has the right 
 to make the appropriation to whatever item or account he 
 pleases,^ even to the prejudice of one who is security for 
 one of the debts.* But an application by the debtor is 
 
 Pinney v. Gleason, 5 Wend. 393; Trowbridge v. Holcomb, 4 Ohio St. 38; 
 Cleveland E. E. Co. v. Kelley, 5 Ohio St. 180; Brooks v. Hubbard, 3 
 Conn. 58. 
 
 1 Mason v. Phillips, Add. 346; Clark v. Pinney, 7 Cow. 681; Edgar v. 
 Boies, 11 Serg. & E. 445; dissenting opinion of Rice, J,, in Heywood u. 
 Heywood, 42 Me. 235. 
 
 2 Wabash Elevator Co. v. First Nat. Bank, 23 Ohio St. 311. See Allen 
 V. Hartfield, 76 111. 358. 
 
 3 Taylors. Sandford, 7 Wheat. 13; United States b. January, 7Cranch, 
 572; Miller v. Trevillian, 2 Eob. 1; Hoopers. Keay, 1 Q. B. Div. 178; 
 Howard v. McCall, 21 Gratt. 205 ; Lingle v. Cook, 32 Gratt. 272 ; Whittaker 
 V. Pope, 48 Ga. 13 ; Simson v. Ingham, 2 B. & C. 72 ; Harding v. Wormley, 
 8 Baxt. 578; Clarke v. Scott, 45 Cal. 86; Sprinkle v. Martin, 72 N. C. 92. 
 
 * Goddard v. Cox, 2 Stra. 1194; Kirby v. Duke of Marlborough, 2 
 Maule & S. 18; Chitty on Bills, [*402], 454, 
 210 
 
CH. XII.] PAYMENT AND TENDER. § 152 
 
 final. Once the payment has been applied by the creditor 
 in compliance with the debtor's directions, the debtor can- 
 not make a different application without the consent of the 
 creditor. 1 Nor would the courts make any other applica- 
 tion for him.^ As between the debtor and creditor, the 
 debtor has until the bringing of the suit, in which to make 
 the appropriation; but as to third parties, he must make 
 the appropriation within a reasonable time.' 
 
 2. If the debtor does not make the appropriation, the 
 creditor may apply it as he pleases.* But it has been held, 
 with much show of reason for it, that if the debtor has, for 
 any reason, not had an opportunity to make the appropria- 
 tion, the creditor cannot exercise the right of appropria- 
 tion.^ It is likewise denied to the creditor to make the 
 
 1 Eichardson v. Woodbury, 12 Cush. 279; Mayor of Alexander ». 
 Patten, 4 Cranch, 317; Hill v. Sutherland,! Wash. (Va.) 128; Hubbell 
 V. Flint, 15 Gray, 550; Plummer v. Erskine, 58 Me. 59; Phillips v. 
 Moses, 65 Me. 70; Brown v. Burns, 67 Me. 535; Tomlinson Carriage Co. 
 V. Kinsella, 31 Conn. 269; Caldwell v. Wentworth, 14 N. H. 431. 
 
 2 Treadwellu. Moore, 34 Me. 112; Feldman«. Gamble, 26 N. J. Eq. 494. 
 
 * Philpott V. Jones, 2 A. E. 41; Mayor of Alexandria v. Patten, 4 
 Cranch, 317; United States v. Kirkpatrick, 9 Wheat. 720; Johnsons. 
 Johnson, 30 Ga. 857; Pattison v. Hull, 9 Cow. 747. But see National 
 Bank V. Bigler, 83 N. Y. 51, where it is held that the debtor's right of 
 appropriation must be exercised at the time of making payraeat, or at 
 least before the creditor has appropriated It. See also Plummer v. Ers- 
 kine, 58 Me. 61; Moss v. Adams, 4 Ired. Eq. 42; Gaston v. Birney, 11 
 Ohio St. 506; Brice v. Hamiltou, 12 S. C. 37. 
 
 * Woods V. Sherman, 71 Pa. St. 100; Allen v. Culver, 3 Den. 284; 
 Harding v. Wormley, 8 Baxt. 578; Smith u. Screven, 1 McCord, 368; 
 Chapman v. Commissioners, 25 Gratt. 721 ; Lingle v. Cook, 32 Gratt. 272; 
 Bennett v. Wilder, 67 111. 327; Bean v. Brown, 54 N. H. 395; Pattison v. 
 Hull, 9 Cow. 747. The creditor cannot change the appropriation after 
 having once made it. Mayor of Alexandria v. Patten, 4 Cranch, 317; 
 Bank of N. A. v. Meredith, 2 Wash. C. C. 47; Hill v. Southerland, 1 
 Wash. (Va.) 128; White u. Trumbull, 3 Green (N. J.), 314; Tooke u. 
 Bonds, 29 Tex. 419 ; Harding v. Wormley, 8 Baxt. 578 ; McMaster v. 
 Merrick, 41 Mich. 505; Seymour v. Marvin, 11 Barb. 80. It is otherwise, 
 if the debtor has not been notified. Hankey v. Hunter, Peake Ad. Cas. 
 107. 
 
 5 2 Parsons on Contracts, ['634], 764 ; Waller v. Lacy, Man & G. 54; 
 
 211 
 
^ 152 PAYMENT AND TENDER. [CH. XII. 
 
 appropriation to a debt, which is not yet due, if there are 
 debts already due ; ^ so, also, to a debt whose validity has 
 been denied by the debtor.^ The right of appropriation is 
 otherwise unconditional, and in the exercise oFthe right the 
 creditor can apply the payment to a debt barred by the 
 statute of liqaitations, even against the will of the debtor. 
 But such an appropriation will not take the debt out of 
 the statute as to the balance.^ But the creditor cannot 
 apply the payment to an illegal debt, i.e., one which is ab- 
 solutely void in law.* The creditor can apply the payment, 
 to suit himself, to the individual debt of the payor, or to 
 his joint debt,* or to an unsecured debt in preference to 
 one that is secured.® So, likewise, he could apply it to a 
 debt that cannot be enforced by reason of the statute of 
 frauds.' 
 
 But in order that the debtor may make an appropriation, 
 it is not necessary for him to make an express declaration 
 
 Blackstone Bank v. Hill, 10 Pick. 129; Bridenbecker v. Lowell, 32 Barb. 
 9; Cowperthwalte v. Sheffield, 3 N. Y. 243; Jones v. Benedict, 83 N. Y. 
 86; Jones v. Williams, 39 Wis. BOO. 
 
 1 Bobei;. Stickney, 36 Ala. 482. 
 
 2 Taylor v. Sandford, 7 Wheat. 13. But otherwise, if the disputed 
 debt is valid. Lee v. Early, 44 Md. 80. 
 
 3 Mills V. Foulke, 5 Blng. N. C. 455; Nash v. Hodgson, 6 De 6. & M. 
 & G. 474; Pond v. Williams, 7 Gray, 630; Williams v. Griffith, 5 M. & W. 
 ,800; Logan c. Mason, 6 Watts & S. 9; Ayer v. Hawkins, 19 Vt. 26; Liv- 
 ermore v. Band, 26 N. H. 85; Watt ». Hoch, 25 Pa. St. 411; Phillips v. 
 Moses, 65 Me. 70; Browne. Burns, 67 Me. 535. 
 
 * Caldwell v. Wentworth, 14 N. H. 431; Wright v. Lalng, 3 B. & C. 
 165; Arnold v. The Mayor, etc., of Poole, 4 Man. & G. 860; Ex parte 
 Bandleson, 2 Deacon & Ch. 534; Kidder d. Norris, 18 N. H. 532; Ban- 
 croft u. Dumas, 21 Vt. 456; Bohan v. Hanson, 11 Cush. 44; Browne. 
 Lacy, 83 Ind. 436; Greene v. Tyler, 39 Pa. St. 361; Pickett v. Merchants' 
 Bank, 32 Ark. 346; Adams v. Mahuken, 41 N. J. Eq. 332. But see contra 
 Philpott V. Jones, 2 A. & E. 41 ; Cruickshanks v. Bose, 1 Moody & R. 
 100; Treadwell v. Moore, 34 Me. 112. 
 
 * Upham V. Le Favor, 11 Met. 174. 
 
 » Van Rensselaer v. Roberts, 5 Deuio, 470. 
 
 ' Haynes v. Nice, 100 Mass. 327; Murphy v. Webber, 61 Me. 478; 
 McLendas v. Frost, 67 Ga. 448. 
 212 
 
CH. XII. J PAYMENT AND TENDER. § 152 
 
 to the creditor. Any facts or circumstances which show an 
 intention to make an appropriation will be binding upon 
 the creditor, and deprive him of the right to make the ap- 
 propriation,^ even though the creditor is unwilling to ac- 
 cede to the debtor's wishes or receives payment with a 
 different intention.^ 
 
 3. When neither debtor nor creditor has made the ap- 
 propriation, it will be applied by law, in the manner which 
 best conforms to principles of equity, and to the prob- 
 able intention of the parties. Where principal and interest 
 are due, the payment will be applied first to the interest 
 and then to the principal.* 
 
 Everything else being equal, the law will apply the pay- 
 ment to the debts of longesst standing.* Ordinarily, the 
 payment will be applied to those debts which, on account 
 of bearing interest, or of some penalty or criminal liability 
 being attached to it, is most burdensome to the debtor.' 
 But it will not be applied to the debt which is secured, in 
 preference to the unsecured debt. In this case the best 
 interest of the creditor is consulted, and payment is applied 
 
 1 Pickett «. Memphis Bank, 32 Ark. 34fi; Tayloev. Sandiford, 7 Wiieat. 
 14; Robert v. Garnie, 3 Caines, 14; Scott v. Fisher, 4 T. B. Men. 387; 
 Newmarch v. Clay, 14 East, 239; Shaw v. Plcton, 4 B. & C. 715; Mitchell 
 V. Dall, 2 Harr. & G. 159; 4 Gill & J. 361; Fowke v. Bowie, 4 Harr. & 
 J. 566; West Branch Bank v. Moorehead, 5 Watts & S. 542; Stone u. 
 Seymour, 15 Wend. 19. 
 
 2 Reed v. Boardman, 20 Pick. 441 ; Wetherell v. Joy, 40 Me. 335. 
 
 8 Lash «. Bdgerton, 13 Minn. 210. Held otherwise, if payment is 
 made before maturity. Starr v. Richmond, 30 111. 276. If the interest 
 also bears interest, then the payment must be applied to the interest on 
 interest, then to the primary interest, and finally, to the principal. 
 Auketel v. Converse, 17 Ohio St. 11. 
 
 ' United States v. Kirkpatrick, 9 Wheat. 720; Smith©. Loyd, 11 Leigh, 
 512; Home v. Planters' Bank, 32 Ga. 1; Mills v. Fowlkes, 5 Bing. N. C. 
 461; Bobe v. Stickney, 36 Ala. 482; Wendt v. Boss, 33 Cal. 650. 
 
 •* MeggottB. Mills, 1 Ld. Raym. 286; Spiller«. Creditors, 16 La. Ann. 
 292; Wright B. Laing, 3 B. & C. 165; Peters i». Anderson, 5 Taunt. 590. 
 But see Mills v. Fowlkes, 5 Bing. N. C. 455; 7 Scott, 444; Stone v. Sey- 
 mour, 15 Wend. 29. 
 
 213 
 
§ 152 PAYMENT AND TENDER. [CH. XII. 
 
 to the unsecured debt.^ But the general rule is that the law 
 favors the surety, and will apply the payment to the debt 
 on which the surety is liable,^ that is, of course, if the 
 creditor has not made the application. The creditor has the 
 right, if he chooses, to apply the payment to the unsecured 
 debt, against the interest of the surety.^ The court will 
 not apply it to a debt barred by the statute of limitations, 
 in preference to one that is not barred.* But if one of two 
 or more debts falls under the bar of the statute after pay- 
 ment and before its appropriation, the court will apply it to 
 the debt that has thus been barred.^ And where the sum 
 paid equals the amount due on one item, it will be applied 
 to that item.^ 
 
 If one is indebted, individually and as a partner, to the 
 same person, a payment will be applied to the individual or 
 partnership debt, according as the money paid belongs to 
 the individual partner' or to the firm.* If it is doubtful 
 whose money is paid, in the case of individual and joint 
 liabilities, the creditor may apply it to either debt.' And 
 
 ' Lashu. Edgerton, 13 Minn. 210; Foster v. McGraw, 64 Pa. St. id; 
 Baine v. Williams, 10 Sm. & M. 113; Standford Bank v. Benedict, 15 
 Conn. 437; Colei). "Withers, 38 Gratt. 204; MoS8 v. Adams, 4 Ired. Eq. 42 ; 
 Field V. Holland, 6 Cranch, 8; Burch v. Tebbutt, 2 Stark. 74; Trullinger 
 V. Kofold, 7 Ore. 228; Anon., 8 Mod. 235; Chitty v. Nash, 2 Dowl. 511 ; 
 Planters' Bank v. Stockman, 1 Freem. Ch. 502; Hilton v. Burley, 2 N. H. 
 193; Jones v, Kilgore, 2 Rich. Eq. 64; Moss ». Adams, 4 Ired. Eq. 42; 
 Ramsour v. Thomas, 10 Ired. 165. See contra Pattison v. Hall, 9 Cow. 
 747. See also Dorseyu. GaS8away,2 Harr. & J. 402; Guinns. Whittaker, 
 
 1 Harr. & J. 754; Robinson v. Doolittle, 12 Vt. 246. 
 
 2 Marryatts ». White, 2 Stark. 101. See Kirby ?;. Duke of Marlborough, 
 
 2 M. & S. 18 ; Pierce v. Knight, 31 Vt. 701 ; Hausen v. Rounsavell, 74 111. 
 238 ; Fridley v. Bowen, 103 111. 638. 
 
 •'' Harding v. TifEt, 75 N. Y. 461; Hanford v. Robertson, 47 Mich. 100. 
 * Nash V. Hodgson, 6 De G. M. & G. 474. 
 « Robinson's Admr. v. Allison, 36 Ala. 525. 
 6 Robert!). Garnie, 3 Caines, 14. 
 ' Fairchild v. Holly, 10 Conn. 175. 
 8 Thompson v. Brown, Moody & M. 40. 
 
 » Van Rensselaer's Exrs. v. Roberts, 5 Den. 570; Baker v. Stackpole, 
 9 Cow. 420. 
 214 
 
CH. XII.] PAYMENT AND TENDER. § 154 
 
 where there is a change in the personnel of the firm in the 
 midst of a series of commercial transactions with a particu- 
 lar creditor, the court should apply a payment to the debts 
 of the old firm.^ 
 
 § 153. Payment on Sunday. — The Sunday laws do not 
 prevent a debt from being liquidated by a payment on 
 Sunday if the creditor retains the money. ^ But if it be 
 only a partial payment of a debt which has b een barred by 
 the statute of limitations the part payment will not have 
 the effect of avoiding the statute, on the ground that the 
 avoidance of the statute in such a case rests upon the im- 
 plication of the debtor's promise to pay the balance, and 
 since any express promise made on Sunday would be 
 void, this implied promise would likewise be void.^ 
 
 § 154. Payment by mall. — As a general proposition, if 
 money is sent by mail in payment of a debt, without any 
 authority from the creditor and without sanction of any 
 general custom and usage, the money is sent at the risk of 
 the debtor, and in order that it may constitute a discharge 
 of the debt, the money must be received by the creditor.* 
 But if the creditor, expressly or by implication, authorizes 
 the transmission of the money by mail, he makes the mail 
 carrier his agent for the receipt of the money in payment 
 of his claim, and the debt is held to be discharged, al- 
 though the money never reaches the creditor and is lost in 
 
 1 Simon v. Ingham, 5 B. & C. 72; 3 Dowl. & K. 249; Hooper v. Keay, 
 2 Q. B. Div. 178. 
 
 2 Johnson v. Willis, 7 Gray, 164. 
 
 3 Clapp V. Hale, 112 Mass. 368; Dennis v. Sharmau, 31 Ga. 607; 
 Baumgardner v. Taylor, 28 Ala. 687. But see Thomas v. Hunter, 29 Md. 
 412 ; Ayres v. Bane, 30 Iowa, 518. 
 
 * Crane d. Pratt, 12 Gray, 348; Buell v. Chapin, 99 Mass. 596; Holland 
 V. Lyns, 56 Ga. 5b; Williams v. Carpenter, 36 Ala. 9; First Nat. Bank v. 
 McManigle, 69 Pa. St. 156. 
 
 215 
 
§ 154 PAYMENT AND TENDER. [CH. XII. 
 
 the mail.^ And it has been held that the authority to 
 transmit money by mail so as to throw the risk on the 
 creditor, would be implied from a request by mail "to re- 
 mit to us as soon as received." ^ 
 
 Proof that a letter, containing the money and properly 
 addressed to the creditor, had been deposited -in the post- 
 office, is prima facie evidence of payment, at least, to be 
 rebutted by proof that it has not been received by the 
 creditor, wherever the money is transmitted at the risk of 
 the debtor.* 
 
 1 Wakefleld v. Lithgow, 3 Mass. 249; Morgan v. Eichardson, 13 
 Allen, 410; Gamey v. Howe, 9 Gray, 404; Palmer v. PhcBnix Mut. Ins. 
 Co., 84 N. Y. 63. 
 
 2 Townsend v. Henry, 9 Rich. L. 318. 
 
 = Huntley v. Whittier, 105 Mass. 391 ; Waydell v. Velie, 1 Bradf. 277. 
 216 
 
CHAPTEE XIII. 
 
 FRAUDULENT SALES. 
 
 Section 157. Fraud defined — Its component parts. 
 168. A material misrepresentation of fact. 
 
 159. When concealment is fraudulent. 
 
 160. Intention to deceive — Negligence in the statement of false- 
 
 hoods. 
 
 161. Reliance upon representation — Deceit must be successful. 
 
 162. Damage to party deceived. 
 
 163. Remedies for fraud. 
 
 164. Material misrepresentations by the seller. 
 
 165. Employment of puffers or by-bidders at auctiou and other 
 
 sales — Other fraud in auction sales. 
 
 166. Seller's expression of opinion — Dealer's talk — His state- 
 
 ments as to value and price. 
 
 167. Seller's concealment or silence when a fraud. 
 
 168. Fraudulent devices of buyers. 
 
 169. Combination of bidders. 
 
 170. Fraudulent intent not to pay. 
 
 171. Concealment of material facts by the buyer. 
 
 172. Expressions of opinion by buyer. 
 
 173. Liability of principals, partners and joint owners for fraud- 
 
 ulent misrepresentations. 
 
 174. Frauds on creditors — Transfers without consideration — 
 
 Voluntary conveyances —Transfers for the purpose of 
 hindering or delaying creditors. 
 
 175. Preferences by insolvents in transfer of property in pay- 
 
 ment of debts, when fraudulent — Voluntary assignments 
 for benefit of creditors. 
 
 176. Conflicting claims of vendor and vendee's creditors. 
 
 177. Fraud on creditors, on account of vendor's retention of 
 
 possession of goods. 
 
 § 157. Fraud defined — Its component parts. — So far 
 
 as it is possible or advisable to define fraud, it may be said 
 to consist of any intentional or wrongful deception of 
 
 217 
 
§ 158 FRAUDULENT SALES. [CH. XIII. 
 
 another. 1 The forms of fraud are, however, infinite; and, 
 partly because it is for this reason difficult or impossible, 
 and partly, in order to keep the definition elastic enough to 
 cover and include every possible form of fraud, the courts 
 have not been disposed to lay down any precise definition, 
 or to present any exact statement of its nature or proof .^ 
 Suffice it to say, that fraud is a question of fact for the jury, 
 to be determined by them from the facts and circumstances 
 of each particular case.^ 
 
 The general requisites of fraud are, 1. A misrepresenta- 
 tion or concealment of a material fact. 2. An intention to 
 deceive, or negligence in uttering falsehoods, with the in- 
 tention of influencing therewith the actions of others. 3. 
 The success of the deceit in influencing the action of the 
 other party. 
 
 § 158. A material misrepresentation of fact. — In de- 
 termining the character of this requisite, it must first be 
 observed, that there must be a misrepresentation ot fact. 
 Legal fraud cannot be predicated, as a general rule, on a 
 misrepresentation of the law. Ignorance of the law excuses 
 no one, and since every one is presumed to know the law, 
 it would be a contradiction to hold that the partj'^, to whom 
 the misrepresentation was made, was misled thereby.* But 
 inasmuch as one is not expected to know foreign laws and 
 
 1 See Benjamin on Sales, § 428; Story on Sales, § 158; Dambmannv. 
 Schulting, 75 N. Y. 55; Smith v. Smith, 21 Pa. St. 367; Rodman v. Thal- 
 heimer, 75 "Pa. St. 232. 
 
 2 Stewart v. Emerson, 62 N. H. 313; 2 Pars. Contr. 769; Story Eq. 
 Jur., § 186; Story on Sales, § 158; Lawley u. Hooper, 3 Atlc. 279. 
 
 8 Hadley B. Clinton, 13 Ohio St. 502; Burrc. Clement, 9 Col. 1; Sec- 
 ond Nat. Bank v. Dix, 101 N. Y. 684. 
 
 ■• Fish 17. Clelaud, 33 111. 238; Dailey v. Jassup, 72 Mo. 144; Clem v. 
 New Eastle, &c., 9 Ind. 488; Eose v. Hurley, 39 lud. 77, 82; Clodfelter 
 V. Hulett, 72 Ind. 137, 143; Upton v. Trelbilcock, 91 U. S. 45, 50; Eawson 
 V. Harger, 48 Iowa, 269; Dillman v. Nadlehoffer, 119 HI. 567; Insurance 
 Co. V. Eeed, 33 Ohio St. 283. See Tabor «. Mich. Mut. Ins. Co., 40 Mich. 
 331. 
 
 218 
 
CH. XIII. J FRAUDULENT "SALKS. § 158 
 
 private acts, any misrepresentation as to them would be 
 fraudulent.^ In the second place, the fact to which the 
 representation refers must be one which is not equally within 
 the observation of both parties. If it is a matter open to 
 the observation of every one, or which can be ascertained 
 by the exercise of reasonable diligence in inquiry, one is 
 guilty of negligence in relying upon the representations of 
 the other party, and the latter cannot be charged with fraud, 
 unless the parties have agreed that the sale shall be made 
 upon the representation of one of them, when the repre- 
 sentations become in effect warranties. As a general rule, 
 such misrepresentations do not constitute a legal fraud. ^ 
 
 In the third place, the misrepresentation musit be of a 
 material fact, i. e., it must have a material bearing upon 
 the transaction in hand. If the representations do not 
 concern the parties to the transaction as such, or only in an 
 immaterial degree, they will not taint the transaction with 
 fraud.^ But a distinction is made by the authorities be- 
 
 1 King II. Doolittle, 1 Head QTenn.), 17. 
 
 2 Mooueyc. Miller, 102 Mass. 220; James v. Lichfield, L. R. 9 Eq. 51 ; 
 Crooks V. Davis, 6 Grant (Out.), 317; McRae v. Froom, 17 Grant (Ont.) 
 357; Coates v. Bacon, 21 Grant (Ont.) 21; Newell ». Horn, 49 N. H. 422; 
 Tui-man v. Tufts, 8 Jones & S. 284 ; Sparman v. Keim, 12 Jones & S. 163 ; 
 Longti. Warren, 68 N. Y. 426; Hess v. Young, 59 Ind. 379; Hustin u. Mc- 
 Closkey, 76 Ind. 38; Bank of Woodland v. Hiatt, 58 Cal. 234; Crown v. 
 Cuninger, 66 Ala. 590; Atwood«. Small, 6 Clark & F. 233; Brown v. Cast- 
 ides, 11 Cush. 348; Prescott ». Wright, 4 Gray, 461; Cooper «. Lovering, 
 106 Mass. 76, 79; Dickinson v. Lee, 106 Mass. 557; Poland t. Brownell, 
 131 Mass. 138; Chamberlain v. Bankin, 49 Vt. 133; Randall «>. Farnum, 
 52 Vt. 539. 
 
 3 Jennings v. Broughton, 5 De Gex, M. & G. 126; Nolan ». Cain, 3 
 Allen, 263; Brown v. Tuttle, 66 Barb. 169; Mason u. Eaplee, 66 Barb. 
 180; SwikehardB. Russell, 66 Barb. 560; Bower v. Ferm, 90 Pa. St. 359; 
 Hall V. Johuson, 41 Mich. 286; First Nat. Bank •«. Yocum, 11 Neb. 328; 
 Noel V. Horton, 50 Iowa, 687; Frenzel v. Miller, 37 Ind. 1, 17; Miller v. 
 Young, 33 111. 355; Hanna u. Sayburn, 84 111. 533; Higgins ». Bicknell, 
 82 111. 502; Race v. Weston, 86 111. 91; Melendy i;. Keen, 89 111. 395 ; 
 Smith V. Brittenham, 98 111. 188; Bradley v. Luce, 99 111. 234; Schwa- 
 backer V. Riddle, 99 III. 343; Mather v. Robinson, 47 Iowa, 403; Dawson 
 V. Graham, 48 Iowa, 378 ; Noel v. Horton, 50 Iowa, 687 ; Meyers v. Funk, 
 
 219 
 
§ 158 FRAUDULENT SALES. [CH. XIII. 
 
 tween mere expressions of opinion of the parties concern- 
 ing the value or qualifications of the subject of sale and 
 positive representations concerning them, holding that the 
 latter are common and well understood attempts by appre- 
 ciation and depreciation of the goods to make a good bar- 
 gain, and which do not mislead the more or less experienced 
 tradesmen, and hence do not constitute a legal fraud, 
 although the other party should happen to be misled.' 
 There is, however, no logical distinction between the two, 
 where the intention is to deceive ; and, if a distinction is 
 at all possible, it must rest upon the variance in the habits 
 of society, the one species of deception being common and 
 
 56 Iowa, 52; Winter v. Baudel, 30 Ark. 362; Cooper v. Merritt, 30 Ark. 
 586 ; Lapp v. Firstbrook, 24 Up. Can. C. P. 239 ; Sanders v. Lyon, 2 
 McArthur, 452; Smith v. Richards, 13 Pet. 26; Gordon ». Butler, 105 
 U. S. 553; Teague v. Irwin, 127 Mass. 217; Blair v. Laflin, 127 Mass. 
 518; Com. v. Jackson, 132 Mass. 16; Smith v. Countryman, 30 N. Y. 
 655; Rice v. Mauley, 66 N. Y. 82; Duffany d. Ferguson, 66 N. Y. 482 ; 
 Miller v. Barber, 66 N. Y. 558; Wilcox v. Henderson, 64 Ala. 535; 
 Welshbillig v. Dienhart, 65 Ind. 94; .Jones v. Hathaway, 77 Ind. 14; 
 Elsass V, Moore's Hill Inst. 77 Ind. 72; Stevens ». Rainwater, 4 Mo. 
 App. 292. 
 
 1 Homer v. Perkins, 124 Mass. 431; Somers v. Richards, 46 Vt. 170; 
 Van Epps V. Harrison, 5 Hill, 63; Buschman v. Cold, 52 Md. 202, 207; 
 Sledge V. Scott, 56 Ala. 202; Merwin v. Arbuckle, 81 HI. 501; Schramm 
 V. O'Conner, 98 111. 529; Dawson v. Graham, 48 Iowa, 378; Stevens v. 
 Rainwater, 4 Mo. App. 292; Samson v. Lord, 13 How. 198; Gordon i;. 
 Butler, 105 U. S. 553; First Nat. Bank v. Yocum, 11 Neb. 328; People v. 
 Jacobs, 35 Mich. 36 ; Kennedy v. Richardson, 70 Ind. 534 ; Cagney v. 
 Cuson, 77 Ind. 497; Wilcox v, Henderson, 6 Ala. 535, 541; Sledges. 
 Scott, 56 Ala. 202; State v. Phifer, 65 N. C. 321, 326; Uhleri). Sample, 
 20 N. J. Eq. 288; Long i;. Woodman, 58 Me. 49; Holbrook u. Conner, 60 
 Me. 578; Medbury v. Watson, 6 Met. 246, 259; Vesey v. Dalton, 3 Allen, 
 380; Mooneye. Miller, 102 Mass. 220; Cooper ■». Levering, 106 Mass. 
 79; Yeagin v. Irwin, 127 Mass. 217; Poland v. Brownell, 131 Mass. 138. 
 In GrafEenstein ». Epstein, 23 Kans. 443, the court says: " A misrepre- 
 sentation as to the market value of an article of general commerce 
 made falsely and fraudulently by one party to induce a sale, and relied 
 upon by the other, will not avoid a contract therefor when there are no 
 circumstances making it the special duty of the one party to communi- 
 cate the knowledge he possesses, and none giving him the peculiar 
 means of ascertaining such market price." 
 220 
 
Cir. XIll.] FRAUDULENT SALES. § 159 
 
 more or less condoned by commercial custom, while the 
 other is less common and is stoutly condemned by public 
 opinion. 1 
 
 § 159. When concealment is fraudulent.^ As a general 
 
 rule, the law does not require the parties to a contract to 
 supply each other with information concerning the subject- 
 matter of the contract. Caveat emptor is the cardinal rule 
 of the law of sales. The vendor and vendee are said to 
 treat with each other at arm's length, and unless 1 he parties 
 have mutually agreed to a modification of the ordinary re- 
 lation existing between them, and placed themselves under 
 obligation to give information, it is no fraud for one of 
 the parties to conceal any material fact from the other, 
 provided he does nothing to mislead the other party, or to 
 prevent or render more difficult his acquisition of the 
 knowledge.^ It is only when the one party merely keeps 
 silent, that he does not commit any legal fraud upon the 
 other. If the silence amounts to a positive concealment 
 of a material fact, as where there are attempts to draw the 
 attention of the other paity from that fact, or to cover it 
 up from view, then the silence becomes equivalent to a 
 misrepresentation, and gives the taint of fraud to the 
 transaction.^ It would also be a fraud, where one, in re- 
 sponse to an inquiry or voluntarily, made a statement, 
 which was true, as far as it went, but which would be 
 l)laced in a different light, if a suppressed fact had been 
 
 ' See Tiedeman's "Unwritten Constitution of the United States," 
 p. 10. 
 
 2 Laidlow v Organ, 2 Wheat. 178 ; Kintzing v. McElrath, 5 Pa. St. 
 467; Butler's Appeal, 26 Pa. St. 63, 66; Blydenburgh ». Welch, Baldw. 
 (U S.) 331; Perry I!. Johnston, 59 Ala. 648; People's Bank u. Bogert, 81 
 N. Y. 101, 108. 
 
 « Matthews v. Bliss, 22 Pick. 48, 52 ; Smith v. Countryman, 30 N. Y. 
 655, 681; Eosemau v. Conovan, 43 Cal. 118; Jackson u. Collins, 39 Mich. 
 557, 661; Savage v. Stevens, 126 Mass. 207. But see Graflenstein u. 
 Epstein, 23 Kans. 443. 
 
 221 
 
§ IGO FRAUDULENT SALES. [CH. XIII. 
 
 stated. In such cases, the fact stated is made to produce a 
 false impression, in consequence of the concealment of 
 another material fact.^ It is liiiewise a fraud for one to 
 suppress a fact, if he is under an obligation to disclose it, 
 on account of being in a fiduciary relation to the other 
 party. 2 
 
 § 160. Intention to deceive — Negligence in the state- 
 ment of falsehoods. — 1'he intention to deceive is a neces- 
 sary element of actual fraud. An innocent misrepresenta- 
 tion is not a fraud, however much damage it may have 
 caused,^ although such a misrepresentation might cause a 
 mistake of fact, or failure of consideration which would 
 
 1 Peck V. Gurney, L. E. 6 H. L. 403; Smith v. Chadwick, L. R. 20 Ch. 
 T>. 58; Phillips v. Foxall, L. R. 7 Q. B. G79; Lee v. Jones, 17 C. B. (x. 
 s.) 506; Arkwright v. Newbold, L. R. 17 Ch. D. 817; Devoe i;, Brandt, 
 53 N. Y. 462. See also Brown v. Montgomery, 20 N. Y. 287; Armstrong 
 V. HufEstuttler, 13 Ala. 51; Turners. Huggins, 14 Ark. 21; Pease v. Mc- 
 Clelland, 2 Bond, 42 ; Marsh v. Webber, 13 Minn. 109 ; Stevens v. 
 Orman, 10 Fla. 9 ; Hanson v. Edgerly, 29 N. H. 343. 
 
 ' Tate V. Williamson, L. R. 2 Ch. 55; Macpherson v. Watt, L. R. 3 
 App. Cas. 254; New Sombrero Phosphate Co. v. Erlanger, L. K. 5 Ch. D. 
 73; Erlanger v. New Sombrero Phosphate Co., 3 App. Cas. 1218; Emma 
 Silver Mfg. Co. v. Lewis, L. K. 4 C. P. D. 396. 
 
 » Cowley V. Smith, 46 N. J. L. 380; Weeks v. Burton, 7 Vt. 67; Salem 
 India Rubber Co. v. Adams, 23 Pick. 256; Brown y. Castles, 11 Cu h. 
 348-351; Kiug r. Eagle Mills, 10 Allen, 548; Prench ». Vming, 102 Mass. 
 132; Fisher v. Mellen, 103 Mass. 503; Cooper c. Lovering, 106 Mass. 78; 
 Beach v. Bemis, 107 Mass. 498; Boyd v. Browne, 6 Barr. 310; Kimball v. 
 Moreland, 559a. 164 ; Josselyn iJ. Edwards, 57 Ind. 212; Seller d. Clel- 
 land, 2 Col. 532 ; French t). Skead, 24 Grant's Ch. (Ont.) 179; Russell r. 
 Clark, 7 Cranch, 69; Righter v. Roller, 31 Ark. 170; Tone v. Wilson, 62 
 111. 529; Merwin v. Arbuckle, 81 111. 501; St. Louis, &c., R. Co. v. Rice, 
 85 111.406; Wharfs. Roberts, 88 111. 426; Dilworth w. Bradner, 85 Pa. 
 St. 238; Duff v. Williams, 85 Pa. St. 490; Frisbie v. Fitzsimmons, 3 
 Hun, 674; Marshall v. Fowler, 7 Hun, 237; Wetscott v. Ainsworth, 9 
 Hun, 53; Morehouse v. Yeager, 9 Jones & S. 135; Barrett v. Barrett, 66 
 Barb. 205; Babcock v. Libbey, 53 How. Pr. 255; Young v. Covell, 8 
 Johns. 25; Stilt v. Little, 63 N. Y. 427; Tryon v. Whitmarsh, 1 Met. 1 ; 
 Page V. Bent, 2 Met. 371; Stone v. Denny, 4 Met. 151, 155; Pettigrew v. 
 Chellis, 4 N. H. 95; Hanson v. Edgerly, 29 N. H. 343; Page v. Parker, tO 
 N. H.47, 69; McDonald v. Trafton, 15 Me. 225. 
 222 
 
CH. XIII. J FRAUDULENT SALES. § 161 
 
 avoid the contract; ^ or it might constitute a breach of a 
 warranty.^ 
 
 But it is to be observed that there is no ground for 
 the charge of fraud, only when the false statement is 
 made innocently and without blame. While the intent to 
 deceive is a necessary element of actual fraud, yet the reck- 
 less statement of what one does not know to be true, for 
 the purpose of influencing the actions of others is I'eprehen- 
 sible under the law, and is an offense, akin to actual fraud, 
 which might be called constructive fraud. Under those 
 circumstances, the law conclusively presumes that the ut- 
 terer of false statements intended to deceive. If, how- 
 ever, one has reasonable grounds for believing his state- 
 ments to be true, although they are false, he has made an 
 innocent mistake, for which he cannot be held responsible. 
 It is only when he makes statements, which he knows to 
 be false or has no reasonable grounds for believing to be 
 true, that he is guilty of fraud. ^ 
 
 § 161. Reliance upon representation — Deceit must 
 be successful. — It is also necessary, to constitute ground 
 
 1 See ante, § 35. See also Benjamia on Sales, §§ 420-i22, 429, 610; 
 Kennedy u. Panama Mail Co., L. R. 2 Q. B. 580, 587; Crump v.V. S. 
 Mining Co., 7 Gratt. 352; Grim v. Byrd, 33 Gratt. 293, 300; Pendarvis r. 
 Gray, 41 Tex. 326; Lopes ». Robinson, 54 Tex. 510; Allen v. Hart, 72 111. 
 106; Thorne v. Prentls, 83 111. 99; Rupp v. Jarrett, 94 111. 475, 479; Smith 
 V. Richards, 13 Pet. 26. 
 
 2 See post, § 193. 
 
 s Weir v. Bell, L. R. 3 Ex. D. 238; Mamnatt v. Emerson, 27 Me. 308; 
 Page V. Bent, 2 Met. 371; Stone v. Denny, 4 Met. 451; Burgess v. 'Wil- 
 kinson, 13 R. I. 64G; Grim«. Byrd, 32 Gratt. 293; Mitchell i). Zimmer- 
 man, 4 Tex. 75; Graham v. Mowlin, 54 Ind. 389; Hough v. Richardson, 
 3 Story, 691; Doggett i;. Emerson, 3 Story, 733; Hammond v. Pennock, 
 61 N. Y. 145; Blackman v'. Johnson, 35 Ala. 252; Sledge v. Scott, 56 Ala. 
 202; Einstein «. Marshall, 68 Ala. 153; Allen i). Hart, 72111. 104; Bower 
 V. Penn, 90 Pa. St. 359; Eawson v. Harger, 48 Iowa, 269; Clark v. Rolls, 
 58 Iowa, 201; Parmleeu. Adolph, 28 Ohio St. 10; iEtna Ins. Co. ■«. Reed, 
 83 Ohio St. 283; Foard u. McComb, 12 Bush, 723; Gunby tj. Sluter, 44 
 Md. 237; Fishery. Mellen, 103 Mass. 506; Savage u. Steyens, 12 Mass. 
 207; Hazard v. Irwin, 18 Pick. 95. 
 
 223 
 
§ 162 PKAUDULENT SALES. [CH. XIII. 
 
 for the charge of fraud, that the deceit should be success- 
 ful in that the party intended to be influenced actually relied 
 upon the misrepresentation. If the other party did not 
 rely upon the misrepresentation, but was induced by other 
 considerations to make the contract, then he was not de- 
 ceived, and he could not afterward secure a release from 
 the contract on the ground of fraud in the negotiation, for 
 he was not defrauded. It would, at the most, be only an 
 attempt to defraud, which might be made punishable, as a 
 criminal offense, but could not be made the subject of a 
 civil action.^ But it seems to be the presumption of law, 
 that if a material misrei^resentation is made the other party 
 relied upon it in the execution of the contract; and this pre- 
 sumption must be rebutted in order that the party making 
 the representation may be relieved from liability for fraud. ^ 
 
 § 162. Damage to party deceived. — The gist of the 
 charge of fraud is that the plaintiff has been deceived to his 
 own damage by the misrepresentation of the defendant. 
 It is not simply deception, but deception plus consequential 
 damage. Hence, if the party deceived has suffered no 
 damage, he has no cause of action against the other party. '^ 
 
 1 Gregory u. Schoenell, 65 Ind. 101; 2 Schouler Pers. Prop., § 605; 
 Smith V. Hughes, 6 Q. B. 597. 
 
 2 Holbrook u. Bust, 22 Pick. 646 ; Redgrave v. ITurd, L. R. 20 ch. D. 1 ; 
 Fishhacks. Miller. 15 Nev. 428. But see Taylor v. Guest, 58 N. Y. 262; 
 Merriam v. Pine City Lumber Co., 23 Minn. 314; Jackson v. Collins, 39 
 Mich. 657 ; Sims v. Eiland, 57 Miss. 607. 
 
 3 Atwood V. Small, 6 Clark, & F. 443; Smith v. Kay, 7 H. L. Cas. 774; 
 Weaver v. Wallace, 9 N. J. L. 251 ; Sledge v. Scott, 56 Ala. 206 ; Neidefer 
 V. Chastain, 71 Ind. 363; Morrison v. Lods, 39 Cal. 385; Pasley v. Free- 
 man, 3 T. R. 51 ; Vernon u. Keys, 12 East, 637 ; Phipps v. Buckman, 30 
 Pa. St. 402; Castlemann v. Griffln, 13 Wis. 635; Fisher v. Mellen, 103 
 Mass. 505 ; Page v. Bent, 2 Met. 374 ; Stiles v. White, II Met. 356 ; Milliken 
 V. Thorndike, 103 Mass. 385; Hanson ». Edgerton, 29 N. H. 357; Hart v. 
 Tallmadge, 2 Day (Conn.) 382; Young v. Hall, 4 Ga. 95; BartlettB. Blaine, 
 83 111. 25; Hughes v. Sloan, 2 Ark. 146; McMaster ». Geddes, 19 Up. Can. 
 Q. B. 216; Hagee v. Grossman, 31 Ind. 223; Weatherford v. Fishback, 3 
 
 224 
 
CH. XIII.] FRAUDULENT SALES. § 163 
 
 Thus, it is held to be no fraud to induce a debtor, by false 
 representation, to pay his just debt.^ 
 
 § 163. Kemedies for fraud. — The principal remedy for 
 fraud is the rescission of the contract. The party de- 
 frauded has the right on discovery of the fraud to rescind 
 the contract and obtain relief from all liability on the 
 contract. But the rescission must extend to the whole 
 contract. The contract cannot be rescinded in part and af- 
 firmed in part. • The rescission must be entire.^ It matters 
 not at what stage of the execution of the contract the 
 fraud was discovered, the contract can be rescinded, pro- 
 vided the parties can be put in statu quo? 
 
 Scam. (111.) 170; White w. Wheaton.'S Sedden, 352; Newell «. Horn, 45 
 N. H. 422; Raudall v. Hazelton, 12 Allen, 414; Medburyi). Watson, 6 Met. 
 246; Adams v. Paige, 7 Pick. 542; Fellowes v. Lord Gwyder, 1 Russ. & 
 M. 83; Foster ». Charles, 6 Bing. 896; 7 Bing. 105; First Nat. Bank v. 
 Yocum, 11 Neb. 328; Wiley v. Howard, 15 Ind. 169; Weist v. Grant, 71 
 Pa. St. 95; Fuller v. Hodgden, 25 Me. 248. 
 
 1 Brown v. Blunt, 72 Me. 415, 421; Marsh v. Cook, 32 N. J. Eq. 262. 
 See Clark «. Tennant, 5 Neb. 649; Mo. Valley Land Co. v. Busjhnell, 11 
 Neb. 192; First Nat. Bank v. Yocum, 11 Neb. 328; Bartlett ». Blaine, 83 
 III. 25. 
 
 2 Miners. Bradley, 22 Pick. 457; Voorhees v. Earl, 2 Hill, 292 ; Coolidge 
 ■u. Brigham, 1 Met. 550; Allen -o. Webb, 24 N. H. 278; Luey v. Bundy, 9 
 N. H. 208; Fullager u. Reville, 3 Hun, 600; Higham b. Harris, 108 Ind. 
 246; Preston v. Travelers Ins. Co., 58 N. H. 76. 
 
 s Prentiss «. Russ, 16 Me. 30; Fareis v. Ware, 60 Me. 482; Downer v. 
 Smith, 32 Vt. 1 ; Matteson v. Holt, 45 Vt. 336 ; Butler t>. Northumberland, 
 50 N. H. 39; Coolidge b. Brigham, 1 Met. 547; Kimball u. Cunningham, 
 4 Mass. 502; Waters Pat. Heater Co. v. Smith, 120 Mass. 444; Voorhees 
 V. Earl, 2 Hill, 292; Farrell v. Corbett, 4 Hun, 128; Van Lieuw v. John- 
 son, 4 Hun, 415; Dows v. Griswold, 4 Hun, 550; Baker v. Lever, 67 N. 
 Y. 304; Croyle b. Moses, 90 Pa. St. 260; JemisonB. Woodruff, 34 Ala. 143; 
 MerrittB. Robinson, 35 Ark. 483; Foulch v. Eckert, 61 111. 448; Warren 
 0. Tyler, 81 111. 15: Shaw b. Barhart, 17 Ind. 183 ; Blen v. Bear River, &c., 
 Co., 20Cal. 602; Cruess b. Fessler, 39 Cal. 336; Morrison b. Logh, 39 
 Cal. 381; Collins b. Townsend, 68 Cal. 608; Bank of Woodland b. Hiatt, 
 68 Cal. 235; Daggett b. Emerson, 3 Story, 700; Pence b. Langdon, 99 U. 
 S. 578; Street b. Blay, 2 Barn. & Ad. 456; Queen b. Saddler's Co., 10 H. 
 L. C. 420; Clarke b. Dickson, El. B. & E. 148; 27 L. J. Q. B. 223; Murray 
 
 13 225 
 
§ 1G3 FttAUDULteN* SALES. [cn. XIII. 
 
 The right must be exercised within a reasonable time 
 after the discovery of the fraud. If there is any unreason- 
 able delay the right of rescission is lost.^ There must also 
 be a prompt and complete restoration of everything of 
 value which the party defrauded had received under the 
 contract.^ If it is of any value to the other party, it must 
 
 V. Mann, 2 Exch. 538; Gushma v. Forest, 4 Cranch, 37; Chengivo v. 
 Jones, 3 Wash. C. C. 359; Gifford y. Carville, 29 Cal. 589; First Nat. 
 Banki;. Yocum, 11 Neb. 328; Gutling «. Newell, 9 Ind. 572; Hall v. Ful- 
 lerton, 69 111. 448; Buchanan «. Harvey, 12 111. 336; Pierce v. Wilson, 34 
 Ala. 596; Hooper v. Strasburger, 37 Md. 390; Lowry v. McLane, 3 Grant 
 (Pa.), 333; Anthony v. Day, 52 How. Pr. 35; Wheaton v. Baker, 14 Barb. 
 494; Kinner v. Kiornan, 2 Lans. 492; Perkins v. Bailey, 99 Mass. 61; 
 King V. Eagle Mills, 10 Allen, 551; Manahan v. Noyes, 52 N. H. 232; 
 Getchell v. Chase, 37 N. H. 110; Gates i;. Bliss, 43 Vt. 299; Foot v. Wood- 
 burn, 25 Vt. 234; Garland v. Spencer, 46 Me. 628. 
 
 1 Central E. Co. v. Kish, L. R. 2 H. L. 99; Heyman v. European, &c., 
 E. Co., L. E. 7 Eq. 154; Boughton v. Standish, 48 Vt. 594; Weeks v. 
 Eobie, 42 N. H. 316; Eoss v. TItterton, 6 Hun, 280; Davis v. Betz, 66 
 Ala. 206; Hall v. Tullerton, 69 111. 448; Rose v. Hurley, 39 Ind. 77; Col- 
 lins V. Townseud, 58 Cal. 608 ; Pence v. Langdon, 99 V. S. 578 ; Bell v. 
 Keepers, 39 Kan. 105; St. John v. Hendrickson, 81 111. 350; Gatling v. 
 Newell, 9 Ind. 672; Farmlee v. Adolph, 28 Ohio St. 10; Hammond v. 
 Pennock, 61 N. Y. 146; Willoughby v. Moulton, 47 N. H. 205; Whltcomb 
 V. Denio, 52 Vt. 382; Matteson v. Holt, 46 Vt. 336; Smith's Case, L. R. 
 2Ch. 604. 
 
 " Norton t;. Young, 3 Greenl. 30; Sumner v. Parker, 36 N. H. 449; Wil- 
 loughby 11. Moulton, 47 N. H. 205; Perley ». Balch, 23 Pick. 286; Jen- 
 nings V. Gage, 13 111. 610; Coolidge v. Bdgham, 1 Met. 550; Miner v. 
 Bradley, 22 Pick. 457; Weeks v. Eobie, 42 N. H. 316; Cushman v. Mar- 
 shall, 21 Me. 122; Thompsons. Peck, 115 Ind. 612; Burton v. Stewart, 3 
 Wend. 239; Collins v. Townsend, 58 Cal. 615; Kimball v. Cunningham, 4 
 Mass. 502; Getchell ». Chase, 37 N. H. 110; Sanborn v. Batchelder, 51 
 N. H. 434; Gifford v. Carville, 29 Cal. 592; Schiffer u. Dietz, 83 N. Y. 
 300; Monahan v. Noyes, 62 N. H. 232; Bell v. Keepers, 39 Kan. 105; 
 Downer «. Smith, 32 Vt. 7; Jemison v. Woodruff, 34 Ala. 143; Strong v. 
 Strong, 102 N. Y. 69; Shepherd v. Temple, 3 N. H. 457; Bacon v. Brown, 
 4 Bibb, 91; Christy v. Cummins, 2 McLean, 386; Carter v. Walker, 2 
 Rich. 40; Conner «. Henderson, 5 Mass. 314; Shaw «. Barnhart, 17 Ind. 
 183; Haase v. Mitchell, 68 Ind. 213; Smith v. Bitterham, 98 111. 188; Mor- 
 rison B.Lods, 39 Cal. 381; Fitz v. Bynum, 66 Cal. 459; Merritt v. Robin- 
 son, 35 Ark. 483; Rose v. Hurley, 39 Ind. 77; Dowes v. Griswold, 4 Hun, 
 656; Farrell v. Corbett, 4 Hun, 128; Van Lieuw ». Johnson, 4 Hun, 415, 
 226 
 
CH, 
 
 XIII.] FEAUDUJIiENT SALES. § 163 
 
 be returned.^ But things which have no value to any one 
 need not be returned, as, for example, worthless securities 
 or counterfeit money .^ Nor is a return required of what 
 was necessarily destroyed in the attempt to discover the 
 fraud, as in chemical and other tests of the quality of the 
 goods.* 
 
 If the parties cannot be restored to the condition in 
 which they were before the execution of the contract, in 
 consequence of the destruction or change in the condition 
 of the property which formed the consideration of the 
 contract, the party defrauded cannot rescind the contract.* 
 
 It is also necessary that the defrauded party should do 
 nothing after the discovery of«the fraud which would in 
 any way admit the existence and validity of the contract. 
 Such an admission, if clear, will operate as a bar to /his 
 right of rescission for fraud, ^ for example, it would be fatal 
 to his right to rescind, where he has mingled the property 
 with his own or offered it for sale,* or in any other way 
 exercised any rights of ownership over the goods.' 
 
 1 Perley u. Batch, 23 Pick. 283; Thayer v. Turner, 8 Met. 552. 
 
 2 Brewster v. Burnett, 125 Mass. 68; Pence v. Langdon, 99 U. S. 578; 
 Smith u, Smith, 30 Vt. 139; Eoyce v. Watrous, 7 Daly, 87; 73 N. Y. 597; 
 Hess V. Young, 59 Ind. 379; Poulton v. Lattimore, 9 B. & C. 269; Dick- 
 inson V. Hall, 14 Pick. 217; Conner u. Henderson, 15 Mass. 322; Becker 
 V. Vroman, 13 Jolms. 302; Taft u. Wildman, 15 Ohio, 123; Donelson v. 
 Young, 1 Meigs, 155; Shepherd v. Temple, 3 N. H. 455; Knapp ». Lee, 
 3 Pick. 457 ; Perley v. Balch, 23 Pick. 283. 
 
 2 Smiths. Love, 64 N. C. 439; Pacific Guano Co. v. Mullen, 66 Ala. 582. 
 
 * Am. Wine Co. v. Brasher, 13 Fed. Rep. 603; Smith v. Butterham, 98 
 111. 188; West Bankv. Addie, L. K. 1 Sc. App. 145; Sawlins v. Wickham, 
 3 De Gex & J. 322; Weeks v. Robie, 42 N. H. 316; Butler u. Northum- 
 berland, 60 N. H. 39; Sanborn u. Batchelder, 51 N. H. 420; Monahan v. 
 Noyes, 52 N. H. 232. But it is held that this destruction or change in 
 the condition of property will not prevent the rescission of the contract, 
 if it is done by the defrauding party, and the defrauded party is willing 
 to accept a partial restoration. Hammond v. Pennock, 61 N. Y. 145. 
 
 5 Brinley v. Tibbets, 7 Greenl. 70. 
 
 " Campbell v. Fleming, 1 Ad. & E. 40. 
 
 ' Towers v. Barrett, 1 T. R. 133; Okell v. Smith, 1 Stark. 107; Mllner 
 
 227 
 
§ 164 FRAUDULENT SALES. [CH. XIII. 
 
 Provided the existence of fraud is ultimately established 
 by competent evidence, the right to rescind the contract 
 will not depend upon the defrauded party's absolute knowl- 
 edge of the fraud. A party may rescind a contract on 
 suspicions of fraud, if these suspicions are subsequently 
 verified.' 
 
 The defrauded party may, however, instead of rescind- 
 ing the contract, affirm it and then recover for the dam- 
 ages which he has suffered in consequence of the fraud in 
 an action of deceit.^ In the case of the buyer's suit for 
 fraud, the difference between the actual and represented 
 value is the usual measure of damages ; ^ but he may re- 
 cover other consequential damages if such have been sus- 
 tained.* But the party defrauded cannot employ both 
 remedies ; he has only his right of election betweeen them.^ 
 
 § 164. Material misrepresentations by the seller. — 
 
 Fraud is multiform, and it would be both tedious and impos- 
 sible to give exliaustive illustrations of it. It must suffice 
 to present characteristic examples, from which the reader 
 may determine the practical application of the general 
 principles already set forth in the preceding paragraphs. 
 It has thus been held to be material misrepresentations, 
 
 V. Tucker, 1 C. & P. 15; Cash v. Giles, 3 C. & P. 407; Grimaldi v. White, 
 4E8p. 95; Thurston i;. Blanchard, 22 Pick. 20; Boorman i). Johnson, 12 
 Wemi. 506; Hoadley v. House, 32 Vt. 129; Sands v. Taylor, 5 Johns. 
 395; Kimball v. Cunningham, 4 Mass. 502; Poultou v. Lattimore, 9 Barn. 
 & C. 269; Parker?). Palmer, 4 Barn. & Aid. 387; Streets. Blay, 2 Barn. 
 & Ad. 464; Groning ». Mendham, 1 Stark. 257; Fisher v. Samuda, 1 
 Camp, 190. 
 
 1 Peterson v. Chicago, &c., E. R. Co., 38 Minn. 511. 
 
 2 Clark 17. Dickson, El. Bl. & E, 148; South, &c., K. R. Co. v. Guest, 84 
 Fed. Eep. 628; Western Bank v. Addle, L. R. 1 H. L. C. 167; Queen v. 
 Saddlers Co., 10 H. L. C. 421. 
 
 3 Durst I!. Burton, 2 Lans. 137; Stiles v. White, 11 Met, 356. 
 
 * Walker v. Moore, 10 Barn. &C. 421; Clunez v. Pezzy, 1 Camp. 8; 
 Page V. Parker, 40 N. H. 47; Jeffrey v. Bigelow, 13 Wend. 518 ; Diramick 
 V. Lockwood, 10 Wend, 142; Fox v. Macbeth, 2 Cox, 322. 
 
 5 Junkins v. Simpson, 14 Me, 364; Weeks v, Eobie, 42 K. H. 316. 
 228 
 
CH. XIII. J FRAUDULENT SALES. § 165 
 
 establishing the charge of fraud in the sale of goods, where 
 the vendor sells a note, which he knows has been paid; ^ 
 where he misrepresents the amount of the previous sales of 
 a patented article, which he is offering to sell; ^ where he 
 misrepresented the profits of his business ; ^ where he 
 stated falsely that the property he was selling was free 
 from incumbrances ; * where the vendor of a note states 
 that the makers were " wealthy and responsible men,"^ 
 where the seller states that a farm yielded a certain quan- 
 tity of hay ; ® where he sells property when it does not 
 really exist;' where he states that railroad bonds are se- 
 cured by first mortgage.* 
 
 § 165. Employment of puffers or by-bidders at auction 
 and other sales — - Other frauds In auction sales. — The 
 
 owner of goods, on putting them up for sale at auction, may 
 reserve the right to establish in advance the minimum price, 
 at which the goods may be sold ; ' or he may announce to the 
 by-standers or otherwise make public the fact that he will 
 employ an agent to bid on the projiertyfor him, in order 
 to prevent a sacrifice.^" And some of the cases go the 
 length of holding that the employment of one bidder in 
 good faith for the purpose of preventing a sacrifice, would 
 not be a fraud on the other bidders, although, seemingly, it 
 
 ' Nefi V. Clute, 12 Barb. 466; Sibley v. Hulbert, 15 Gray, 509. 
 
 2 Crossland v. Hail, 33 N. J. Eq. Ill; Miller v. Barber, 66 N. Y. 558; 
 Somers v. Richards, 46 Vt. 170. 
 
 " Taylor?). Saurman, 110 Pa. St. 3. 
 
 - Ward V. Weman, 17 Wend. 193; Haiglit v. Hoyt, 19 N. Y. 464; Mas- 
 son V. Bovet, 1 Denio, G9. 
 
 * Alexander v. Dennis, 9 Port. 174. 
 
 « Coont). Atwell, 46 N. H. 510; Martini). Jordan, GO Me. 531. 
 
 ' Wordell v. Fosdick, 13 Johns. 325. 
 
 » Clark V. Edgar, 84 Mo. 106. 
 
 » Steele v. Ellmaker, U S. & R. 86; Bush v. Cole, 28 N. Y. 261 ; War- 
 low «. Harrison, 29 L. J. Q. B. 14; Wolfe v. Lnyster, 1 Hall, 146. 
 
 '» Dimmock v. Hallett, L. R. 2 Ch. 21; Staines v. Shore, 16 Pa. St. 200; 
 Mainprice v, Westley, 6 Best. & S. 420. 
 
 229 
 
§ 165 FRAUDULENT SALES. [CH. XIII. 
 
 is not announced or made public.^ The old English chan- 
 cery rule permitted the employment of one bidder ; ^ but 
 the matter is now regulated by statute in England, and the 
 employment of even one bidder clandestinely is considered 
 to be a fraud on the buyer.* But it has always been held 
 to be a fraud, where two or more bidders were employed 
 by the vendor, for the purpose of creating an appearance 
 of competition; * or in any case where the employment of 
 a bidder is done for the fraudulent purpose of giving to the 
 property a fictitious value, and this is especially the rule 
 where the sale was advertised to be made "without re- 
 serve," etc.^ The distinction between the employment of 
 
 1 Phippen v. Stickney, 3 Met. 387; Steele v. EUmaker, 11 S. &K. 86; 
 MoncriefE o. Goldsborough, i Har. & McH. 282; Woods v. Hall, 1 Dev. 
 Eq. 411 ; Morehead v. Hunt, 1 Dev. Eq. 35; Latham v. Morrow, 6 B. Mon. 
 630; Lee v. Lee, 19 Mo. 420; Veazie v. Williams, 3 Story, 622; s. c. 8 
 How. 134; Walsh v. Barton, 24 Ohio St. 28; Reynolds v. Dechaumis, 24 
 Tex. 174; Pennock's Appeal, 14 Pa. St. 446; Wolfe v. Lnyster, 1 Hall, 
 146. 
 
 « Green y. Banerstock, 14 C. B. 204; Flint ». Woodin, 9 Hare, 618. 
 
 s Mortimer t). Bell, L. R. 1 Ch. 10; Heatley u. Newton, L. R. 19 Ch. D. 
 326. 
 
 " Veazie ». Williams, 3 Story, 622; Sahara v. Bach, 13 La. 287; Jen- 
 kins V. Hogg, 2 Const. (S. C.) 821; Tomlinson v. Savage, 6 Ired. Eq. 
 430 ; Troughton v. Johnson, 2 Hayw. 28 ; Nat. Fire Ins. Co. v. Loomis, 11 
 Paige, 431. 
 
 s Curtis V. Aspinwall, 114 Mass. 187; Morehead •». Hunt, 1 Dev. Eq. 
 35; Woods v. Hall, 1 Dev. Eq. 411; Baham iJ.Bach, 13 La. 287; Fisher v. 
 Hersey, 17 Hun, 370; Tomlinson v. Savage, 6 Ired. Eq. 430; Donaldson 
 V. McRoy, 1 Browne, 346; Peck d. List, 23 W. Va. 338; Trust ». De La 
 Plaine, 3 E. D. Smith, 219; National Bank v. Sprague, 20 N. J. Eq. 159; 
 Fowle V. Leavitt, 23 N. H. 360; Nat. Fire Ins. Co. ■!;. Loomis, 11 Paige, 
 431; Wolfe v. LufEster, 1 Hall, 146; Pennock's Appeal, 14 Pa. St. 446; 
 Staines v. Shore, 16 Pa. St. 200; Yerkes v. Wilson, 81 Pa. St. 9; MoncriefE 
 ■u. Goldsborough, 4 Har. & McH. 282; McDowell v. Sims, 6 Ired. Eq. 
 278; Latham v. Morrow, 6 B. Mon. 630; Darst c. Thomas, 87 111.222; 
 Miller v. Baynard, 2 Houst. 559; Bexwell v. Christie, 1 Cowp. 395; 
 Howard v. Castle, 6 T.E. 642; Crowder v. Austin, 3 Bing. 368; Thornett 
 V. Haines, 15 M. & W. 367; Green v. Banerstock, 14 C. B. 204; Rex ». 
 Marsh, 3 Younge & J. 331; Gilliatt v. Gilliat, L. R., P Eq. 60; Wheeler 
 r. Collier, Moody & M. 123. 
 230 
 
CH. XIII. j FRAUDULENT SALES. § 166 
 
 one bidder for the purpose of preventing a sacrifice of the 
 property, and the employment of one for the purpose of 
 giving the property a fictitious and unreal value, is very 
 fine, and must be ascertained, as it seems to me, solely by 
 the degree to which the fictitious bidding is employed, it 
 being fraudulent if the price of the goods is thereby pushed 
 up above their true market value. The same rules as to puff- 
 ing apply to all other kinds of sales, including sheriffs' sales.' 
 
 But in order that the sale may be rescinded by the buyer, 
 on account of puffing or by bidding it is held that the 
 buyer must have been influenced by it to bid more than he 
 had previously detei-mined to do,^ and the preceding bid 
 must not have been genuine.^ 
 
 The auctioneer may also commit a fraud by having a 
 private signal with any bidder for communicating bids,* or 
 by giving any other advantage to one bidder over the 
 others ; ^ or by advertising the goods to belong to one party 
 when they were the property of some one else.® 
 
 But the auctioneer will be justified in refusing to accept 
 bids from a minor,' from irresponsible persons in general," 
 or from any one else, if done in good faith and on justifi- 
 able grounds.^ 
 
 § 166. Seller's expression of opinion — Dealer's talk — 
 His statements as to value and price. — The general rule, 
 
 1 Donaldson v. McRoy, 1 Browne, 340; Lee v. Lee, 19 Mo. 420; Dim- 
 mock V. Hallett, L. R. 2 Ch. 21, 29. 
 
 2 Jennings v. Hart, 1 Russ. & Ches. 15; Veazie v. Williams, 3 Story 
 611; Tomlinson v. Savage, 6 Ired. Eq. 530. 
 
 3 National Bank v. Sprague, 20 N. J. Eq. 159, 163; Veazie v. Williams, 
 3 Story, 611; but see Curtis v. Aspinwall, 114 Mass. 187, 199. 
 
 * Conover v. Walling, 15 N. J. Eq. 173. 
 
 * Thomas u. Kerr, 3 Bush, 619; Pattison v. Josselyn, 43 Miss. 373; 
 Conover v. Walling, 15 N. J. Eq. 173. 
 
 ^ Thomas v. Kerr, 3 Bush. 619. 
 
 ' Kinney v. Showdy, 1 Hill, 544. 
 
 " Hobbs V. Beaver, 2 Ind. 142; Den v. Zellers, 2 Halst. 153. 
 
 ' Holder v. Jackson, 11 Up. Can. C. P. 543. 
 
 231 
 
§ 166 FRAUDULENT SALES. [CH. XIII. 
 
 heretofore given ^ that mere expressions of opinion do not 
 constitute a material misrepresentation, finds a special ap- 
 plication to quer^tions concerning the seller's fraud. For 
 vendors of goods are very generally in the habit of indulg- 
 ing in more or less extravagant praise of their goods, un- 
 duly extolling their merits, as to value and quality. Where 
 their statements are of a general nature, there cannot be 
 much doubt that their use will furnish no ground for the 
 charge of fraud.^ But when the vendor descends to exag- 
 geration or misstatement of specific facts or qualities, the 
 authorities are divided. For example, it is held by some 
 of the authorities that a willful misstatement of the cost of 
 the goods or of the price that has been offered for them, 
 for the purpose of enhancing the value of the goods, is not 
 a fraud.^ And it has even been held to be no fraud, for a 
 seller to misstate the appraised value of the goods which 
 he is selling.* But, on the other hand, other courts have 
 held such specific misrepresentations of value of the goods, 
 to be a fraud on the buyer which would avoid the sales. ^ 
 
 1 See ante, § 158. 
 
 2 Mowlant). Cain, 3 Allen, 263; Miller v. Young, 36 111. 354; Chester 
 V. Comstock, 6 Rob. 1; Anderson v. Hill, 12 Smed. & M. U79; Atwood v. 
 Small, 6 Ct. & I". 232; Ormrod v. Huth, 14 M. & W. 6C4; Vernon v. Keys, 
 12 East, 637; Com. v. Jaclison, 132 Mass. 16; Bisiiop v. Small, 63 Me. 
 
 . 14; Hemmer u. Cooper, 8 Allen, 334; Cooper v. Lovering, 106 Mass. 79; 
 Holbroolsi). Connor, 60 Me. 578; State v. Paul, 69 Me. 215. 
 
 s Holbrook «. [Connor, 60 Me. 578; Bishop v. Small, 63 Me. 12; Willard 
 V. Randall, 65 Me. 81 ; Chrysler v. Canaday, 90 N. Y. 272; Merrian v. Ar- 
 buckle, 81 111. 501; Rlghter i;. Roller, 31 Ark. 170; Wolcott v. Mount, 38 
 N. J. L. 496; Mooney u. Miller, 102 Mass. 217; Cooper ». Lovering, 106 
 Mass. 79; Brown ». Leach, 107 Mass. 364; Comer «. Perkins, 124 Mass. 
 431; Veasey». Dayton, 3 Allen, 381; Hemmer v. Cooper, 8 Allen, 334; 
 Gordon v. Parralee, 12 Allen, 212; Brown v. Castles, 11 Cush. 350; Med- 
 bury V. Watson, 6 Met. 259. 
 
 4 Bourr». Davis, 76 Me. 223. 
 
 « VanEpps v. Harrison, 5 Hill, 63; Page v. Parker, 43 N. H. 369; 
 Weadner v. Phillips, 39 Hun, 1 ; Sandf ord v. Handy, 23 W end. 269 ; where 
 the misrepresentations were of the price which third persons had paid 
 or offered for the goods, Medbury v. Watson, 6 Met. 240; Manning u. 
 Albee, 11 Allen, 322; Ives v. Carter, 24 Conn. 403; Sandford v. Nandy, 
 232 
 
CH. XIII. J FRAUDULENT SALES. § 166 
 
 It has been held to be a fraud,^ and likewise not a fraud, ^ 
 for the vendor of commercial paper to state falsely that the 
 parties to the paper are financially responsible. It was 
 held to be a fraud for the vendor, in the sale of a bus- 
 iness, to represent that it is profitable; ^ whereas it was 
 held to be no fraud for the statement to be made by the 
 seller that the subject-matter of the sale was good oil land.* 
 Fraudulent promises of the vendor to do something in the 
 future for the vendee, as well as fraudulent representations 
 as to what the vendee could do with the property, are held 
 not to constitute fraud. ^ On the other hand, a representa- 
 tion that an old stock of goods was " fresh and new," was 
 held to be fraudulent.® In another case it was held to be 
 doubtful whether the statement that a horse was " sound 
 and kind" was a fraudulent affirmation of a fact or an 
 irresponsible expression of an opinion.' 
 
 In all '^^hese cases of doubt, it is clearly a question of fact 
 for the jury to determine, avowedly dependent on the in- 
 tention and understanding of the parties,* but, in my judg- 
 ment, chiefly dependent upon the practices and moral per- 
 ception of the particular jury. 
 
 23 Weud. 269; Simar v. Canaday,53 N. Y. 306; Kennerc. Hardiug, 85 111. 
 ^64; McClelland v. Scott, 24 Wis. 81; Miller v. Barber, 66 N. Y. 658; 
 Cowles V. Watson, 14 Hun, 41 ; Somers v. Richards, 46 Vt. 170. 
 ^ Alexander v. Dennis, 9 Porter, 174. 
 
 2 Belcher v. Costello, 122 Mass. 188. 
 
 3 Cruessu. Fessler, 39 Cal. 336; Somers v. Richards, 46 Vt. 170; Mil- 
 ler V. Barber, 66 N. Y. 558; Crossland v. Hall, 33 N. J. Eq. 111. 
 
 * Watts V. Cummiugs, 59 Pa. St. 84. 
 
 5 Long V. Woodman, 58 Me. 52; Gordon v. Parmlee, 2 Allen, 212; Pe- 
 duckt). Porter, 5 Allen, 324; Mooney v. Miller, 102 Mass. 217 
 
 * Jackson v. Collins, 39 Mich. 557. 
 
 ' Commonwealth v. Jackson, 132 Mass. 16. 
 
 8 Morse v. Shaw, 124 Mass. 59; Commonwealth v. Jackson, 132 Mass. 
 16; State V. Tomlin, 29 N. J. L. 13; Bradley v. Luce, 99 111. 234; Sharp 
 V. Ponce, 74 Me. 470; State v. Heffner, 84 N. C. 751 : Bigler v. Flicklnger, 
 55 Pa. St. 279; Sledge v. Scott, 56 Ala. 208; Homer v. Perkins, 124 Mass. 
 431. 
 
 ■J 33 
 
§ 1(37 FRAUDULENT SALES. [CH. XIII. 
 
 § 167. Seller'sconcealmentiorsUence when a fraud. — 
 
 The general rule is that the seller's silence, when he knows 
 that the buyer is exaggerating the value or qualities of the 
 goods, is not a fraud. And this is certainly the general 
 rule where the buyer has equal facilities with the seller, for 
 discovering the defects in the goods. The seller is not 
 obliged to point out the defects, if they can be discovered 
 by the buyer with reasonable diligence. The rule caveat 
 emptor is applied here with all its force. ^ And it has been 
 held to be no fraud, for the vendor to omit unintentionally 
 to disclose defects which could not be discovered so readily 
 by the buyer, the intention to deceive being a necessary 
 element of fraud. ^ But, if he intentionally withholds in- 
 formation of the existence of defects, which are not equally 
 within the ken of the buyer, as where poison has been spilled 
 upon fodder,^ or where animals are sold for breeding pur- 
 poses, when the vendor knows they are impotent,^ it is un- 
 doubtedly a fraud. 
 
 1 Atwood V. Small, 6 CI. & T. 233; Vigers v. Pike, 8 CI. & F. 650; Hart 
 ». Holcombe, 32 N. H. 185; Teasey v. Dalton, 3 Allen, 380; Lytle v. Bird, 
 3 Jones (N. C.) 222; Port v. Williams, 6 Ind. 219; Warner v. Daniels, 1 
 Wood & M. 90, 101; Tuthill v. Babcock, 2 Wood &M. 298; Hough ». 
 Kichardson, 3 Story, 659 ; Brown v. Leach, 107 Mass. 364 ; Stephens v. 
 Orman, 10 Fla. 9; Eocchi v. Schwabacker, 33 La. An. 1364; Browne. 
 Castles, 11 Cush. 350; Dickinson v. Lee, 102 Mass. 559; Homers. Per- 
 kins, 124 Mass. 431. 
 
 2 Stevens v. Puller, 8 N7 H. 463; Hanson v. Edgerly, 29 N. H. 343; 
 Kintzing v. McBlrath, 5 Pa. St. 467; Harris v. Tyson, 24 Pa. St. 347; 
 Lardlow v. Organ, 2 Wheat, 178; Howard ». Gould, 28 Vt. 523; Fisher 'j. 
 Budlong, 10 R. I. 527. 
 
 " French v. Vinlng, 102 Mass. 135. See also to same effect, Dixon 
 V. McClutchey, Add. 322; Paddock v. Strobridge, 29 Vt. 471: McAdams 
 V. Cates, 24 Mo. 223; Barron v. Alexander, 27 Mo. 630; Duvall u. Med- 
 tart, 4 H. & J. 14; Beninger v. Corwin, 24 N. J. L. 257; Dowing v. Dear- 
 born, 77 Me. 457; Hough ». Evans, 4 McCord, 169; Cardwell o. McClel- 
 len, 3 Sneed, 150; Stevens v. Fuller, 8 N. H. 463; Prentiss ?;. Euss, 16 
 Me. 30; Milliken v. Chapman, 75 Me. 322; Corneilus v. Molloy, 1 Pa. St. 
 293; Hadleyi). Clinton, &c., Co., 13 Ohio St. 502; Cecil ». Spurger, 32 Mo. 
 462. 
 
 " Maynard v. Maynard, 49 Vt. 297. 
 234 
 
CH. XIII.] FEAUDULEXT SALES. § 168 
 
 In order that the seller's silence may not constitute a 
 fraud, he must do nothing to conceal these defects from the 
 buyer,^ or to induce him to be less vigilant in his examina- 
 tion of the goods. ^ It will also be a fraud to fail to point 
 out defects in cases in which the usage of trade requires the 
 seller to disclose them.* 
 
 But it is not a fraud, not to disclose defects in any case 
 where the buyer positively relies upon his own judgment 
 after his examination of the goods, and does not evince any 
 desire to refer to the seller's opinions or statements.* It 
 is also not a fraud on the buyer, to conceal defects, where 
 the goods are expressly sold " with all their faults." '' 
 
 § 168. Fraudulent devices of buyers. — The fraudulent 
 devices of buyers may assume a variety of forms, but the 
 more common consist of misrepresentations of the credit 
 and financial standing of the buyer,* and of his identity or 
 
 1 Paddock v. Strowbridge, 29 Vt. 420; Maynard v. Maynard, 49 Vt. 
 297; Croyle v. Moses, 90 Pa. St. 450; Beninges v. Corvvin, 24 N.J. L. 
 257; Cassell v. Herron, 5 Clark, 250. 
 
 2 Benj. on Sales, § 430. 
 
 3 Horsfall v. Thomas, 1 Hurt. & C. 90; Smith u. Hughes, L. R. 9 Q. 
 B. 597; Jones v. Bowden, 4 Taunt. 847. 
 
 * Pattlson V. Jenks, 33 Ind. 87 ; Stephens v. Ormau, 10 Fla. 9 ; Howell 
 V. Biddlecorn, C2 Barb. 131. 
 
 s Pearce v. Blackwell, 12 Ired. 49 ; Pickening v. Dawsou, 4 Taunt. 779 ; 
 Freeman v. Baker, 1 Ad. & E. 508; Hanson v. Edgerly, 29 N. H. 343; Ward 
 V. Hobbs, L. R. 2 Q. B. D. 331; s. c. L. R. 3 Q. B. D. 150; Gossler v. 
 Eagle Sugar Ref., 103 Mass. 331; Smith v. Andrews, 8 Ired. 6; Henshaw 
 V. Robins, 9 Met. 83, 90; Taylors. Fleet, 4 Barb. 102; Whitney v. Board- 
 man, 118 Mass. 247, 248; Baywater v. Richardson, 1 Ad. & E. 508; Bayle- 
 hole B. Walters, 3 Camp. 154. 
 
 ' Luckey v. Roberts, 25 Conn. 486; Gary v. Hotaillng, 1 Hill, 311; 
 Olmsteal v. Hotailing, 1 Hill, 317; Van Neste v. Couover, 20 Barb. 547; 
 Hunter v. Hudson River Iron Co., 20 Barb. 494; Eaton v. Avery, 83 N. 
 Y. 31 ; Naugatuck Cutlery Co. v. Babcock, 22 Hun, 481 ; Devoe v. Brandt, 
 53 N. Y. 462; Gregory v. Schoenell, 55 Ind. 101; Lyon v. Briggs, 14 R. 
 I. 222; Cain v. Dickinson, 60 N. H. 371; Genesee Co. Sav. Bank v. Mich. 
 Barge Co., 52 Mich. 164; Cochran v. Stewart, 21 Minn. 435; Williams v. 
 Given, 6 Gratt. 268. 
 
 235 
 
§ 168 FRAUDULENT SALES. [CH. XIII. 
 
 business connections with other men,^ of forged recom- 
 mendation of others '^ and the transfer in payment of the 
 price of worthless securities,^ counterfeit money,* stolen 
 goods, ^ or of checlis, which will not be honored on account 
 of the want of funds. ° The fraud may also consist of a 
 misrepresentation as to the age of the buyer, and a subse- 
 quent repudiation of the sale on the ground of the buyer's 
 infancy.^ It would be a fraud to allow the seller to rely 
 upon the recommendations of third persons, which contain 
 some false representation concerning the buyer.* And so, 
 also, to secure goods through an insolvent buyer from the 
 vendor of the goods by making false representations of 
 his credit and financial standing.^ The fraudulent mis- 
 
 1 Barker v. Dinsraore, 72 Pa. St. 427; Kingsford ». Merry, 1 H. & N. 
 503; McCrillis v. Allen, 57 Vt. 505; Aborn v. Merchants' Despatch Co., 
 135 Mass. 283; Radliffe B. Dallinger, 141 Mass. 1; Alexander ». Swack- 
 hamer, 105 Ind. 81 ; Hardman v. Booth, 32 L. J. (n: s.) Ex. 105. 
 
 2 Mowrey v. Walsh, 8 Cow. 238. 
 
 3 Mansing v. Albee, 11 Allen, 520. 
 
 ■* Arnott u. Cloudas, 4 Dana, 300; Green v. Humphrey, 50 Pa. St. 212; 
 Cochran v. Stewart, 21 Minn. 435; White?!. Garden, 10 C. B. 919; Har- 
 ner v. Fisher, 58 Pa. St. 453; Williams v. Given. 6 Gratt. 268. 
 
 5 Titcomb v. Wood, 38 Me. 563; Arendale v. Morgan, 5 Sneed, 703; 
 Lee V. Portwood, 41 Miss. 109. 
 
 6 Hawse v. Crowe, Ryan & M. 414; Hodgson v. Barrett, 33 Ohio St. 
 63; Bristol?). Wilsmore, 1 B. & C. 514. 
 
 ' Badger v. Phinney, 15 Mass. 359; Mills v. Graham, 4 B. & P. 140; 
 Huge V. Gallans, 10 Phila. 618; Wallace v. Morse, 5 Hill, 391; Lempriere 
 V. Lange, 12 Ch. D. 675; Fitts v. Hall, 9 N. H. 441. But see contra, John- 
 son V. Pie, 1 Keb. 913; 1 Lev. 169; Price v. Hewett, 8 Exch. 146; Liver- 
 pool Adelphi Loan Association v. Fairhurst, 9 Exch. 422. And see 
 Studwell V. Shapter, 54 N. Y. 249; Barley v. Russell, 10 N. H. 184; Con- 
 rad V. Lane, 26 Mian. 389; Merriam v. Cunningham, 11 Cush. 40, where 
 it is held that if an infant is sued at common law on his contract, it is 
 not a good replication to the defense of infancy to allege that the plaint- 
 iff was induced to make the contract by the infant's fraudulent mis- 
 representation of his age. 
 
 " Fitzsimmons v. Joslin, 21 Vt. 129; Ladd v. Lord, 36 Vt. 194. 
 
 » Biddle I). Levy, 1 Stark. 20; Hill v. Perrott, 3 Taunt. 274; Thomas D. 
 Davenport, 2 Smith's Lead. Cas. 347; Meyer o. Amidon, 23 Hun, 563. 
 See State v. Schulein, 45 Mo. 521; Phelan v. Crosby, 2 Gill, 462. 
 23() 
 
CII. XIII. J FRAUDULENT SALES. § 1(58 
 
 representations of the buyer may be made by himself 
 directly to the seller, or indirectly to him through com- 
 munications to third persons, in general, as well as through 
 the mercantile agencies, whose business it is to furnish to 
 their regular subscribers information concerning the financial 
 standing of merchants. In every such case the fraud of 
 the buyer is suflScient to avoid the sale. But it is held that 
 the misrepresentations must be shown to have been made 
 with the intention to commit a fraud upon the seller or 
 some other persons.^ But, whether the misrepresentation 
 is made directly or indirectly to the seller, in order that it 
 may constitute a fraud on him, it must be made by the 
 buyer with the intention of influencing the seller's conduct, 
 either in particular, or in general, in common with all 
 other potential sellers.^ 
 
 Fraud, however, may be committed on the seller by dis- 
 suading others from bidding at an auction by false repre- 
 sentations concerning the conduct of the seller of the 
 goods, or the condition of the goods. This is as much a 
 fraud on the seller, as if he had been influenced by false 
 representations to sell, when he would not otherwise have 
 parted with his goods. For example, it is a fraud where 
 the buyer dissuades others from bidding on the property by 
 misstating the amount of the incumbrance,^ by paying 
 them for withholding their bids,* or out of personal favor 
 to the buyer ,^ or because the seller had wronged the buyer, 
 in withholding the property from him.'' Although the 
 
 ^ DeickerhofE v. Brown, 21 Md. Kep. 583; Lindauer ii. Hay, 61 Iowa, 
 663; Victors. Henlein, 33 Hun, 549. 
 
 2 Hill V. Curley, 8 Hun, 636; Van Kleech v. Leroy, 37 Barb. 544. 
 
 2 Jackson v. Morter, 82 Pa. St. 291. 
 
 • Morris o. Woodward, 25 N. J. Eq. 32 ; Slinglufe v. Eckel, 24 Pa. St. 
 472 ; Gardiner v. Morse, 26 Me. 140. 
 
 5 Gardiner B. Tucker, 6 R. I. 551. 
 
 « Fuller V. Abrahams, 3 B. & B. 116; People v. Lord, 6 Hun, 390; 
 Jackson v. Morter, 82 Pa. St. 291; Raynes v. Orowder, 14 Up. Can. C. P. 
 
 uv. 
 
 237 
 
§ 169 FEAtJfttJLENf SALES. [CH. XIII. 
 
 sale will not be avoided, because the buj'er dissuaded 
 others from bidding at an execution sale, by truthfully 
 telling them that he was bidding in the interest of the 
 debtor; ^ yet it would, of course, be a fraud if the repre- 
 sentation of interest in the debtor was false.* And this 
 leads us to the consideration of the general subject of 
 
 § 169. Combinations of bidders. — The general propo- 
 sition is that, whatever may be the mode of chilling or 
 stifling competition among bidders at a sale, any combina- 
 tion of bidders for that purpose would be a fraud upon the 
 seller, sufficient to avoid the sale at the latter's instance.* 
 On the other hand, it is held to be permissible for bidders 
 to combine for the purchase of the entire lot of goods 
 offered for sale, and a subsequent division among them of 
 the goods so purchased by their agent, where no one of 
 them would want to purchase the whole lot. The combina- 
 tion, in such a case, is not for the purpose of depressing 
 the price, but to enable a purchase to be made, which is 
 impossible except in combination.* And, in the case of 
 
 1 Dick V. Cooper, 24 Pa. St. 217. 
 
 2 Slater v. Maxwell, 6 Wall. 268; Cocks v. Izard, 7 Wall. 559. 
 
 3 Jones u. Portsmouth, &c., 17 E. Co., 32 N. H. 544; Edsall^. Hamburg 
 M. Co., 1 Halst. Cli. 658; Hamburg M. Co. v. Edsall, 1 Halst. Ch. 249; 
 Pattison V. Joselyn, 43 Miss. 373; Stockton v. Owlings, Litt. Sel. Cas. 
 256; Seymour v. M. & C. T. Co., 10 Ohio, 47G; Stewart v. Nelson, 25 
 Mo. 309; Stewart v. Severance, 43 Mo. 322; White Crow v. White King, 
 3 Kans. 276; Forelander«. Hinks, 6 Ind. 448; Fleming v. Hutchinson, 36 
 Iowa, 519; Arnold v. Cord, 16 Ind. 177; Vantrees v. Hyatt, 5 Ind. 487 
 Griffith V. Judge, 49 Mo. 536; Mllteuberger v. Morrison, 39 Mo. 71 
 Wooton V. Hinkle, 20 Mo. 290; Martin ■«. Blight, 4 J. J. Marsh. 491 
 Mills V. Rogers, 2 Litt. 217; Carson v. Law, 2 Rich. Eq. 296; Hamilton 
 V. Hamilton, 2 Rich. Eq. 355. 
 
 » Smith V. Greenlee, 2 Dev. 126; Phippen v. Stickney, 3 Met. 387; 
 Dexter v. Shepherd, 117 Mass. 480; Maire v. Garrison, 83 N. Y. 14; Smal 
 U.Jones, 1 Watts & S. 128; McMinn. v. Phipps, 3 Sneed, 196; Swit- 
 zer V. Skiles, 3 Gilm. 529 ; Kearney v. Taylor, • 15 How. 519 ; Crooke 
 V. Dairs, 6 Grant (Out.), 317; Brown v. Pisher, 9 Grant (Ont.) 423; 
 Slater v. Maxwell, 6 Wall. 268 ; Jenkins v, Frink, 30 Cal. 580 ; Allen v, 
 238 
 
CH. XIII.] PftAUDULfcNf SALES. § 170 
 
 sales on execution, particularly, the presumption of law is 
 that a combination of bidders is not for any fraudulent 
 purpose of depressing the price, but rather for the lawful 
 purpose of securing a purchase that is otherwise beyond 
 their reach. ^ But if the bidders who enter into the com- 
 bination do not share in the division of the goods which are 
 purchased, then the combination is presumed to have been 
 made for the fraudulent purpose of depressing the price to 
 the injury of the seller and the sale may be avoided.^ 
 
 § 170. Fraudulent intent not to pay. — When one pro- 
 poses to buy goods, he makes an express or, at any rate, 
 an implied promise to pay the price. If, therefore, he has 
 no intention whatever of paying for the goods, he has made 
 in effect, if not in fact, a material misrepresentation, in 
 reliance upon the truth of which the seller has parted, or 
 has agreed to part, with his goods. But, whether it is con- 
 sidered a material misrepresentation or not, the great pre- 
 ponderance of authority in this country pronounces a sale 
 
 Stephanes, 18 Tex. 658; Dick u. Cooper, 24 Pa. St, 217; National Bank 
 ■u. Sprague, 20 N. J. Eq. 159; Wolfe v. Luyster, 1 Hall, 146; Gardiner v. 
 Morse, 25 Me. 140. 
 
 1 Brisbane v. Adams, 3 N. Y. 129; Youngw. Snyder, 3 Grant Gas. 151 ; 
 Young «. Smith, 10 B. Mon. 293; Switzer i). Skyles, 8 Gilm. 629; Jen- 
 kins V. Frink, 30 Cal. 586 ; Stewart v. Severance, 43 Mo. 322 ; Bnckner v. 
 Cliambliss, 30 Ga. 652; Bradley v. Kinajsley, 43 ST. Y. 534. 
 
 2 Newman «. Meek, 1 Freem. Ch. 441; Gardiner v. Morse, 25 Me. 140; 
 Phippen v. Stickney, 3 Met. 387; Troup v. Wood, 4 Jolins. Ch. 228; Wil- 
 bur V. Howe, 8 Johns. 444 ; Meech v. Bennett, Hill & D. 192 ; Gulich ii. 
 Ward, 5 Halst. 87; SlinglufEs. Eckel, 24 Pa. St. ,472; Martini;. Eautell, 
 5 Rich. 541; Johnson v. La Motte, 6 Rich. Eq. 347; Dudley i). Little, 2 
 Ohio, 505; Hook ». Turner, 22 Mo. 333; Pratt i7. Oliver, 1 McLean, 295; 
 Cocks V. Izard, 7 Wall. 559 ; Loyd u. Malone, 23 111. 43 ; Wooton v. Hinkle, 
 20 Mo. 290; Haynes v. Crutchfleld, 7 Ala. 189; Hamilton v. Hamilton, 2 
 Rich. Eq. 353; Woods v. Hudson, 5 Munf. 423; Dick v. Lindsay, 2 Grant 
 Cas. 431; Trust i;. Delaplaine, 3 E. D. Smith, 219; Thompson u. Davis, 
 13 Johns. 112; Doolln v. Ward, 6 Johns. 194; Jones v. Caswell, 3 Johns. 
 Cas. 29; Fenner v. Tucker, 6 E. I. 651; Pike v. Balch, 38 Me. 202; Eodges 
 V. Rodgess, 13 Grant (Ont.) 143; James v. Fulerad, 5 Tex. 612; Farr v, 
 Simms, Eich.Eq. 122, 
 
 239 
 
§ 170 PKAUDULENt SALES. [CH. Xllt. 
 
 fraudulent, in which the buyer had formed a preconceived 
 intention not to pay for the goods. The sale may for this 
 reason be avoided by the seller. ^ 
 
 But while the existence and knowledge, or the early an- 
 ticipation, of insolvency by the buyer and the absence of any 
 reasonable expectation of ability to pay are facts which tend 
 to prove the fraudulent intent not to pay for the goods — 
 it may be the principal facts ^ — they are not sufficient 
 (alone) to prove this fraudulent intent.* But if they are 
 
 1 Donaldson v. Farwell, 93 U. S. 631; Carnahan v. Bailey, 28 Fed. 
 Rep. 519; Thompson v. Taylor, 15 Phila. 250; Redlngton v. Roberts, 25 
 Vt. 694; Rowley v. Bigelow, 12 Pick. 307; Dow v. Sanborn, 3 Allen, 182; 
 Thompson v. Rose, 16 Conn. 81; Mulliken v. Millar, 12 R. I. 296; Ash v. 
 Putnam. lHill,302; Gary «. Hotailing, 1 Hill, 311; Meachamu. Collignor, 
 7 Daly, 402; Schufeldt v. Schnitzler, 21 Hun, 462; Buckley v. Archer, 21 
 Barb. 585 ; Nichols v. Pinner, 18 N. Y. 295 ; 23 N. Y. 265 ; Paddon v. Taylor, 
 44 N . Y. 371 ; Wright v. Brown, 67 N. Y. 1 ; Mears v. Waples, 3 Houst. 581 ; 
 4 Houst. 62 ; Peters v. Hilles, 48 Md. 506 ; Loel v. Flash, 66 Ala. 526 ; Des 
 Farges v. Pugh, 93 N. C. 31 ; Lane v. Robinson, 18 B. Mon. 623 ; Bidault v. 
 Wales, 19 Mo. 36; 20 Mo. 546; Taylor v. Mississippi Mills (Ark.), 1 So. 
 Rep. 283; Talcott v. Henderson, 31 Ohio St. 162; Shipmano. Seymour, 40 
 Mich. 283; Klopenstein v. Mulcahy, 4 Nev. 29C; Bell v. Ellis, 33 Cal. 620; 
 Seligman v. Kalkman, 8 Cal. 207; Allen v. Hartfleld, 76 111. 358; Oswego 
 Starch Factory b. Lendoum, 57 Iowa, 573; Rice v. Cutler, 17 Wis. 362; 
 Fox V. Webster, 46 Mo. 181; Baldwin v. Franklin, 8 Lea, 67; Wood v. 
 Yeatman, 15 B. Mon. 271; Wilson v. White, 80 N. C. 280; Dellone t». 
 Hull, 47 Md. 112; Powell u. Bradlee, 9 Gill & J. 220; Stoutenborough v. 
 Kockle, 15 N. J. Eq. 33; Devoe v. Brandt, 53 N. Y. 462; Hennequin v. 
 Naylor, 24 N. Y. 239; Hall v. Naylor, 18 N. Y. 588; Barnard v. Campbell, 
 65 Barb. 286; Mitchell v. Worden, 20 Barb. 253; Byrd v. Hall, 2 Keyes, 
 646; Bigelow o. Heaton, 6 Hill, 44; King v. Phillips, 8 Bosw. 603; Ayres 
 V. French, 41 Conn. 142, 153; Kline v. Baker, 99 Mass. 253; Wiggin v. 
 Day, 9 Gray, 97; Stewart v. Emerson, 62 N. H. 301; Burrill v. Stevens, 
 73 Me. 395; Hanchett v. Mansfleld, 16 111. App. 407; Catlin v. Warren, 16 
 111. App. 418; Lee v. Simmons, 65 Wis. 523; Parker v. Byrnes, 1 Low. C. 
 C. 539; Davis v. Stewart, 8 Fed. Rep. 803; Ferguson v. Carrington, 9 B. 
 & C. 59; Davis v. McWhirter, 40 Up. Can. Q. B. 598; Biggs v. Barry, 2 
 Curt. (tJ. S.) 262. 
 
 2 Hennequin v. Naylor, 24 N. Y. 139 ; Talcott v. Henderson, 31 Ohio 
 St. 162; Thompson v. Rose, 16 Conn. 71. 
 
 3 Cross V. Peters, 1 Greenl. 378; Redington v. Roberts, 25 Vt. 694; 
 Morrill v. Blackman, 42 Conn. 324; Lloyd v. Brewster, 4 Paige, 537; 
 
 240 
 
CH. XIII.] FRAUDULENT SALES. § 170 
 
 accompanied by other facts, such as an immediate sale of the 
 goods at a greatly reduced price, or a transfer of them to 
 some other creditor, or the secretion of the property, as 
 soon as it is received, and the like, which tend to prove a 
 preconcerted plan to accumulate some money before a sus- 
 pension of business, the jury can infer from such a com- 
 bination of facts that the buyer had a preconceived design 
 not to pay for the goods, and hence the sale was fraudulent .^ 
 The intention not to pay must be absolute, in order to 
 taint the sale with fraud. It is not fraudulent, if the 
 buyer simply had the intention not to pay at the time 
 agreed upon, and in accordance with the terms of the con- 
 tract, if he honestly intended to pay at some other time.^ 
 
 Johnson u, Monell, 2 Abb. App. 470; Byrd v. Hall, 2 Keyes, 646; Henne-: 
 quin». Naylor, 24 N. Y. 139; BidcUe u. Black, 99 Pa. St. 880; Powell t). 
 Bradlee, 9 Gill & J. 220 ; Talcott v. Henderson, 31 Ohio St. 162 ; Garbult 
 V. Bank, 22 Wis. 384; Conyers v. Bnnis, 2 Mason, 236 ; Ex parte Whittaker, 
 L. K. 10 Ch. 446; Burrill v. Stevens, 73 Me. 395; Schufeldt v. Schnitzler, 
 21 Hun, 462; Wright v. Brown, 67 Hun, 4; Klopensteln v. Mulcahy, 4 
 Nev. 296; Belding v. Frankland, 8 Lea, 67; Nichols v. Pinner, 18 N. Y. 
 295;Ontario Copper Co. v. Lightning-rod Co., 29 Up. Can. C. P. 491; 
 Biggs «. Barry, 2 Curt. C. C. 259; Shipmen a. Seymour, 40 Mich. 274; 
 Kleiu V. Rector, 57 Miss. 538 ; Mears v. Waples, 3 Houst. 581 ; 4 Houst. 
 62: Rodman v. Thalheimer, 75 Pa. St. 232; Fish v. Payne, 14 N. Y. 586; 
 7 Hun, 586; Ellison v. Bernstein, 60 How. Pr. 145; Andrew v, Dieterich, 
 14 Wend. 81; Rowley v. Bigelow, 12 Pick. 307; Hodgeden v. Hubbard, 
 18 Vt. 504; Bell v. Ellis, 33 Cal. 620; Bidault v. Wales, 19 Mo. 36; 20 Mo. 
 547; Morris v. Talcott, 96 N. Y. 100; Morrison i;. Shuster, 1 Mackey, 190; 
 Daltonu. Thurston, 3 N. E. Rep. 383; Kelsey «. Harrison, 29 Kan. 143. 
 But see, contra, Davis v. Stewart, 3 MCrary C. C. 174; 8 Fed. Rep. 803, 
 where it has been held under the bankruptcy law that the purchase of 
 goods, when o.ie knows himself to be insolvent, and that he has no 
 reasonable expectations of ability to pay, is fraudulent, at least as be- 
 tween the seller and the buyer's assignee in bankruptcy. 
 
 1 Wiggin V. Day, 9 Gray, 97; Des Earges v. Pugh, 93 N. C. 81 ; Parker r. 
 Byrnes, 1 Low. C. 0. 539, 542 ; Davis v. McWhirter, 8 Up. Can. Q. B. 598 
 Wilson ». White, 80 N. C. 280; Jordan v. Osgood, 109 Mass. 462; Hen 
 nequinv. Naylor, 24 N. Y. 139; Talcott v. Henderson, 31 Ohio St. 162 
 Thompson v. Rose, 16 Conn. 71; Lee v. Simmons, 65 Wis. 523. 
 
 " Bidault V. Woles, 20 Mo. 546; Mitchell v. Worden, 20 Barb. 253 
 Buckley v. Artcher, 21 Barb. 585. 
 
 16 241 
 
§ 171 FRAUDULENT SALES. [CH. XIII. 
 
 And the intention not to pay must be adopted prior to the 
 sale, in order to make the sale fraudulent. If it be not a 
 pre-determined intention not to pay, but one which was 
 taken up after the sale had been made, while it is fraudu- 
 lent, cannot have a retrospective effect and thus taint the 
 contract of sale. The title to the goods cannot, on account 
 of this subsequent determination not to pay, be recovered 
 by an avoidance of the contract of sale.^ But it has been 
 held that this fraudulent intention not to pay will avoid the 
 sale, if it is made at any time before the sale is completed, 
 by a delivery of the goods.^ 
 
 In Pennsylvania, however, it is held that there must be 
 some further proof of an intention to deceive, in order to 
 avoid the sale, than the concealment of the buyer's insol- 
 vency and his intention not to pay. It is required that 
 there must be " artifice intended and fitted to deceive." * 
 
 § 171. Concealment of material facts by the buyer. — 
 
 The buyer is no more required than is the seller to dis- 
 close facts within his knowledge, which would materially 
 affect the negotiations for the sale of the goods, such as 
 those which would enhance the price of the goods,* or 
 
 1 Burrill v. Stevens, 73 Me. 395; Biggs v. Barry, 2 Curt. C. C. 259; 
 Rowley c.Bigelow, 12 Pick. 307; Parker v. Byrnes, 1 How. 539^ Cross v. 
 Peters, 1 Greenl. 378. See, also, Des Farges o. Pugh, 93 N. C. 31 ; Lee 
 V. Simmons, 65 Wis. 523; Taylor v. Mississippi Mills, 1 So. Eep. 283; 
 citing, Ex parte Whittaker, L. R. 10 Ch. App. 446; Biggs v. Barry, 2 Curt- 
 C. C. 259; Hoffman v. Noble, 6 Met. 68; Nichols v. Pinner, 18 N. Y. 295; 
 Bridgeford v. Adams, 46 Ark. 136; Merritt v. Robinson, 35 Ark. 483; 
 Cross V. Peters, 1 Greenl. 376 ; Stewart v. Emerson, 52 N. H. 301 ; Don. 
 aldson v. Farwell, 93 U. S. 631. 
 
 2 Beldlng v. Frankland, 8 Lea, 67; 41 Am. Rep. 630; Pike v. Wietiog, 
 49 Barb. 314. But see, contra, Burrill v. Stevens, 73 Me. 395. 
 
 3 Smith V. Smith, 21 Pa. St. 367; Backentoss v. Speicer, 31 Pa. St. 324. 
 See Hamer v. Fisher, 68 Pa. St. 453 ; Rodman v. Thalheimer, 75 Pa. St. 
 232; Wilson v. White, 80 N. C. 280; Bell v. Ellis, 33 CaL 620; Kline ». 
 Baker, 99 Mass. 253. 
 
 * Laidlaw v. Organ, 2 Wheat. 178; Harris v. Tyson, 24 Pa. St. 347; 
 Kintzingc. McElrath, 5 Pa. St. 467; Matthews v. Bliss, 22 Pick. 48; 
 242 
 
CH, 
 
 XIll.] FRAUDULENT SALES. § 172 
 
 which relate to the solvency of the buyer,i or any other 
 facts. 
 
 The buyer is not obliged to disclose facts within his 
 knowledge, unless he assumes an obligation to furnish in- 
 formation.^ 
 
 But the buyer must scrupulously abstain from the use of 
 any statements or actions, which are calculated to disarm 
 suspicion, and to mislead on account of being half-truths. 
 In any such case, the combination of silence and a mislead- 
 ing act or word is equivalent to an actual misrepresentation 
 of a material fact, and will taint the sale with fraud. ^ 
 
 § 172. Expressions of opinion by buyer. — The buyer's 
 statements of fact are also divided into irresponsible ex- 
 pressions of opinion and fraudulent misrepresentations of 
 
 Smitli V. Beatty, 2 Ired. Eq. 456; Butler's Appeal, 26 Pa. St. 63; Fox v, 
 Mackreth, 2 Bro. Ch. 420. 
 
 1 Cross ». Peters, 1 Greeal. 378; Hedington v. Roberts, 25 Vt. 694 i 
 Morrill v. Blackman, 42 Conn. 324; Lloyd b. Brewster, 4 Paige, 537; 
 Johnson v. Monell, 2 Abb. App. 470; Byrd v. Hall, 2 Keyes, 646; Heune- 
 quin V. Naylor, 24 N. Y. 139; Biddle v. Black, 99 Pa. St. 380; Powell v. 
 Bradlee, 9 Gill & J. 220; Talcott v. Henderson, 31 Ohio St. 162; Garbutt 
 V. Bank, 23 Wis. .S84 ; Conyiss v. Ennis, 2 Mason, 236 ; Ex parte, Whit- 
 tiker, L. R. 10 Ch. 446; Burrill o. Stevens, 73 Me. 395; Sohufeldt v. 
 Schutzler, 21 ITun, 4G2; Wright a. Brown, 67 Hun, 4; Klopenstein v. 
 Mulcahy,4 Nev. 296; Belding v. Erankland, 8 Lea, 67; Nichols v. Pinner, 
 18 N. Y. 295; Ontario Copper Co. v. Lightning Rod Co., 29 Up. Can. C. 
 P. 491 ; Biggs V. Barry, 2 Curt. C. C. 259; Shipman v. Seymour, 40 Mich. 
 274; Klein o. Rectjr, 57 Miss. 538; Mears v. Waples, 3 Houst. 581; 4 
 Houst. 62; Rodman v. Thalheimer, 75 Pa. St. 232; Fish v. Payne, 7 Hun, 
 586; ». c. 14 N. Y. 586; Ellison v. Bernstein, 60 How. Pr. 145; Andrew v. 
 Dieterich, 14 Wend. 31; Rowley v. Bigelow, 12 Pick. 307; Hodgeden v. 
 Hubbard, 18 Yt. 504. 
 
 2 Dambmaun v. Schulting, 75 N. Y. 55, 62. See Carpenter v. Dan- 
 forth, 52 Barb. 581; Fisher v. Bodlong, 10 R. I. 625; Board of Tippe- 
 canoe Co. V. Reynolds, 44 Ind. 509. 
 
 3 Turner «. Harvey, Jacob, 178; Bench v. Shelden, 14 Barb. 66; Pres- 
 cott V. Wright, 4 Gray, 461 ; Paul v. Hadley, 23 Barb. 521 ; 'Dambraann v. 
 Schulting, 75 N. Y. 02; Smith v. Countryman, 39 N. Y. 655, 681 ; Howard 
 V. Gould, 28 Vt. 523; Hadley v. Clinton Co., 13 Ohio St. 502. But see 
 Vernon ». Keys, 12 East. 632 ; 4 Taunt. 488. 
 
 243 
 
§ 173 FRAUDULENT SALES. [CH. XIII. 
 
 fact. It is not always possible to draw the line very clearly 
 between the two, but it may be stated generally that when 
 the statement is very general in its terms, and in no way 
 specific, or is so common that no one of ordinary prudence 
 is misled thereby, it is called a mere expression of opinion; 
 and although it may be false, it does not avoid the sale 
 which ensues.^ 
 
 § 173. Liability of principals, partners, and joint- 
 owners for agent's fraudulent misrepresentations. — The 
 
 principal and agent are properlyconsidered, in respect to the 
 rights of third persons who have dealings with them, as one 
 person, and it does not matter which of them commits a 
 fraud in making the contract, the principal will at least be 
 liable so far as to be compelled to make restitution of every 
 thing which he has derived from and under the contract, or 
 pay for the value of the same.^ And inasmuch as the 
 agent is the alter ego of the principal in relation to all that 
 he does within the scope of his authority it would follow 
 
 1 See Belcher v. Costello, 122 Mass. 189; Van Epps v. Harrison, 5 Hill, 
 63; Ellis V. Andrews, 56 N. Y. 83; "Watts ». Cummings, 59 Pa. St. 84; in 
 which false expressions of the buyer's financial standing were"considered 
 not fraudulent. On the other hand, see McClellan v. Scott, 24 Wis. 81; 
 Simar w.Canaday, 53 N. Y. 298; Morse v. Shaw, 124 Mass. 59; Homer v. 
 Perkins, 124 Mass. 431; Stubbs v. Johnson, 127 Mass. 219. So, also, it 
 was held to be no fraud for one falsely to say, " that is all I will give " 
 and the like. Humplirey ». Haskell, 7 Allen, 498; Vernon u. Keyes, 12 
 East, 638 ; 4 Taunt. 488. 
 
 2 Veazie v. Williams, 8 How. 134; Jewett «. Carter, 132 Mass. 335; 
 Lamm v. Port Deposit Ass'n, 49 Md. 233; Chester ». Dickerson, 52 Barb. 
 350; Graves v. Spier, 58 Barb. 349; Presby v. Parker, 56 N. H. 409; 
 Sharp V. Mayor of N. Y., 40 Barb. 256; Hunter v. Hudson River Co., 20 
 Barb. 493; Concord Bank ». Gregg, 14 N. H. 331; Fogg u. Griffin, 2 Allen, 
 1; Fitzsimmons v. Joslin, 21 Vt. 129; Mundorff v. Wickersham, 63 Pa. 
 St. 87; McClellan v. Scott, 24 Wis. 81; Crump v. U. S. Mining Co., 7 
 Gratt. 352; New York, &c., K. R. Co. v. Shuyler, 34 N. Y. 30; Durst ». 
 Burton, 47 N.* Y. 167; Ludgate v. Love, 44 L. T. (n. s.) 694; Mackay v. 
 Commercial Bank, L. R. 5 B. C. 394 ; Houldsworth v. City of Glasgow 
 Bank, L. R. 5 App. Cas. 317; Weir v. Bell, 3 Ex. D. 238; Swire v. Fran- 
 cis, L. R. 3 App. Cas. 106. 
 
 244 
 
CH. Xm.] FRAUDULENT SALES. § 174 
 
 logically that the principal would be responsible civilly in 
 an action of deceit for all the damages which the other 
 party has suffered from the fraud of the agent. This rule 
 applies equally to Joint-owners and partners of the property 
 which is sold or bought, and the cases cited apply the 
 principle to all such cases. ^ But it has been held in several 
 recent cases, that the action of deceit will not lie against 
 the innocent principal for the fraud of the agent, unless 
 after learning of the fraud he distinctly approves of and 
 affirms the fraud. ^ 
 
 Where the principal instructs an agent to make use of a 
 representation which the principal knows to be false, but 
 which the agent supposes to be true, the innocence of the 
 agent will not shield the principal from responsibility for 
 his own fraud. ^ 
 
 § 174. Frauds on creditors — Transfers without con- 
 sideration — Voluntary conveyances — Transfers for the 
 purpose of hindering or delaying creditors. — The cases, 
 to which the subject of this paragraph refers, cover all 
 sorts of transfers which are made for the purpose of de- 
 frauding the vendor's creditors. They are to be distin- 
 guished from the frauds upon the vendor or vendee by the 
 fact that the frauds upon creditors never affect the validity 
 of the sale as between the parties to the contract. If either 
 
 1 Locke V. Stearns, 1 Met. 560; Fitzsimmons v. Joslin, 21 Vt. 139; 
 Bennetts. Judson, 21 N. Y. 239; Indianapolis, &c., R. R. Co. v. Tyng, 63 
 N. T- 653; Duraut v. Rogers, 87 111. 511; Elwe 1 v. Chamberlin, 31 N. Y. 
 619; TaggB. Tennessee Nat. Bank, 9 Heisk. 479; Reynolds v. Witte, 13 
 S. C. 5; Wolfe v. Pugh, 101 lud. 294; Law v. Grant, 37 Wis. 648; Reed 
 V. Peterson, 91 HI. 297; Craig v. Ward, 3 Keyes, 387: Durst b. Burton, 
 2 Lans. 137; 47 N. Y. 174; Griswold v. Haven, 25 N. Y. 595; Jeffreys. 
 Bigelow, 13 Wend. 518; White v. Sawyer, 16 Gray, 586. 
 
 2 Kennedy v. McKay, 43 N. J. L. 288 ; Western Bank v. Addie, L. R. 1 
 H. L. C. 146; Udell v. Atherton, 7 H. & N. 172. See Krumm v. Beach, 25 
 Hun, 293; 86 N. Y. 311. But see Barrlck v. Bng., &c.. Bank, L. R. 2 Ex. 
 259; Oakesi!. Turquand, L. R. 2 H. L. 325. 
 
 3 Ludgater v. Love, 44 L. T. (n. 8.) 694. 
 
 245 
 
§ 174 FKAUDULEKT SALES. [CH. XIII. 
 
 of the parties is bound by the contract of sale, both are.^ 
 And, if there is a valuable consideration to the contract, 
 both parties are liable to each other for a breach of the 
 contract. The existence of this fraud upon the vendor's 
 creditors does not enable the vendor to rescind the sale and 
 recover his property ^ which has so far become the prop- 
 erty of the vendee as that he may insure it against fire and 
 other risks, and in case of loss, hold the insurance money 
 against the vendor.^ Nor can the vendee avoid the pay- 
 ment of the consideration of the sale on account of the 
 fraud upon the vendee's creditors* although if the sale 
 should be avoided by the vendor's creditors, there would 
 be a failure of consideration, which would enable the vendee 
 to recover back the price paid for the goods, or to defend 
 any action by the vendor for the breach of the contract, 
 if he has not paid it.^ 
 
 Questions concerning the frauds upon creditors arise 
 
 ' Harvey v. Varney, 98 Mass. 118; Hill v. Pine River Bank, 45 N. H. 
 300; Barrows v. Barrows, 9 N. E. Eep. 371; Williams v. Lowe, 4 Humph. 
 62; Burgettc. Burgett, 1 Ohio, 469; Springer v. Drosch, 32 Ind. 486; 
 Douglass u. Dunlop, 10 Ohio, 162; Walton v. Bonham, 24 Ala. 513; 
 Chapin ». Pease, 10 Conn. 69; Neely v. Wood, 10 Yerg. 486; Sherk ». 
 Endres, 3 W.& S. 255; Ybarra». Lorenzana, 53 Gal. 197. 
 
 2 Osborne ». Morse, 7 Johns. 161; Murphy d. Hubert, 16 Pa. St. 60; 
 Telford v. Adams, 6 Watts, 429; Broughton v. Broughton, 4 Rich. 491; 
 Jackson u. Garnsay, 16 Johns. 189. The contract of sale may also be 
 enforced against the vendor's heirs and representatives. Drinkwater v. 
 Drinkwater, 4 Mass. 354; Dearman v. RadclifEe, 5 Ala. 192; Clapp v. 
 Tlrrell, 20 Pick. 247; Garner v. Graves, 54 Ind. 188; Reichart v. Castator, 
 5 Binn. 109; Beebe». Saulter, 87 111. 519; Stephens v. Harrow, 26 Iowa, 
 458. 
 
 s Lerow v. Wilmarth, 9 Allen, 385. And the vendee's creditors may 
 also claim the insurance money as against the grantor. Maher v. Swift, 
 14Nev. 324. 
 
 ♦ Butler D. Moore, 73 Me. 151; Davey v. Kelley, 66 Wis. 457; Car- 
 penter V. McClure, 39 Vt. 9; Fiudley v. Copley, I Blackf. 262; Gary v. 
 Jacobson, 55 Miss. 204; Bryant v. Mansfield, 22 Me. 360; Dyer v. Homer, 
 22 Pick. 253. But see Church v. Muir, 33 N. J. L. 320; Niver v. Best, 10 
 Barb. 369; Neelis v. Clark, 4 Hill, 424. 
 
 " Dyer v. Homer, 22 Pick. 253. 
 246 
 
CH. Xin.J FRAUDULENT SALES. § 174 
 
 under the statutes 13 Eliz. ch. 5, and 27 Eliz. ch. 4, which 
 have been substantially re-enacted in all the States of this 
 country. The statutes are said to be affirmatory of the 
 common law, at the most only enforcing its principles more 
 stringently.^ Whether this be so is a matter of very little 
 importance, since these statutes are uniform in their terms 
 and have been enacted very generally. The original stat- 
 ute, as well as all copies of it, declare to be void all con- 
 veyances of property, both real and personal, which are not 
 made in good faith and upon a valuable consideration, but 
 upon trust for the benefit of the grantor,^ or made in any 
 other way for the purpose of hindering, delaying, or de- 
 frauding creditors.^ 
 
 The first point to be observed, in determining under the 
 statute of Elizabeth when a sale is fraudulent as to credit- 
 ors, is that the law will not imply a sale or transfer of 
 goods to be fraudulent, if it be based upon a valuable con- 
 sideration. Such transfers of property are presumed to 
 be bona fide. But this presumption is not conclusive. 
 The presence of a valuable consideration in the sale is not 
 at all inconsistent with the fraudulent intent to defraud 
 creditors.* If the sale was actually made with a fraudu- 
 
 1 Cadogan, u. Kennett, Cowp. 432; 2 Kent CoM. 515; Whittlesey v. 
 McMahon, 10 Conn. 141; Avery v. Street, 6 Watta, 248; Hudual v. 
 Wilder, 4McCord, 297; Doyle v. Sleeper, 1 Dana, 533; Hamiltoau. Kus- 
 sell, 1 Cranch, 316; Meeker v. Wilson, 1 Gall. 419; Adams v. Broughton, 
 13 Ala. 739; O'Daniel v. Crawford, 4 Dev. 203; Wilt v. Franklin, 1 Bian. 
 £14, 623; Whitmore v. Woodward, 28 Me. 392. 
 
 2 Any trust for the benefit of the grantor is a fraud upon the grantor's 
 creditors. Twyne's Case, 3 Coke, 80; 1 Smith Lead. Cas. 1; Franklin v. 
 Claflin, 49 Md. 24; Jones v. King, 86 111. 225; Edwards ». Stinson, 59 
 Ga. 443; Young v. Heermanns, 66 K. Y. 374. 
 
 ' It may be proper to state here that the cases, whlch'are cited in sup- 
 port of proposition offered in discussion of the effect of this statute, do 
 not always consist of sales of personal property, a large number being 
 conveyances of real property. But the same statute governs both classes 
 of conveyances, and the principles would apply to every case comiiig. up 
 under the statute. 
 
 < Nugent iJ. Jacobs, 103 N. Y. 125; Roeber v. Bowe, 26 Hun, 554; 
 
 247 
 
§ 174 FRAUDULENT SALES. [CH. XIII. 
 
 lent intenl to defeat the claims of creditors, it may be 
 avoided by them, notwithstanding it is supported by a 
 valuable consideration, if the purchaser was cognizant of 
 the seller's fraudulent intent, and bought the property for 
 the purpose of aiding the seller in his fraudulent design.^ 
 But if the purchaser does not participate in the seller's 
 fraud, and pays a valuable consideration for the goods, the 
 sale will not be voidable by the creditors, because it was 
 made by the seller for the purpose of defeating the execu- 
 tion of a creditor.^ But in order that the sale may be 
 avoided, notwithstanding the payment of a valuable con- 
 Johnston V. Dick, 27 Miss. 277; Peck v. Land, 2 Kelly, 1; Billings «. 
 Russell, 101 N. Y. 226; Singer v. Jacobs, 3 McCrary, 638; Ayers v. 
 Moore, 2 Stew. 336; Wadsworth ». Williains, 100 Mass. 126; Howe u. 
 Ward, 4 Greenl. 195. 
 
 ' Swinerton v. 1 Dane Abr. 628; Kimball v. Thompson, 4 Cnsh. 447; 
 Dalglish V. McCarthy, 19 Grant's Ch. 578; Spring Lake Iron Co. v. 
 Waters, 60 Mich. 13; Hessing i>. McCloskey, 37 111.341; Andersons. 
 Warner, 5 Bradw. 416; Green u. Tanner, 8 Met. 411 ; Fo-ter ». Hall, 12 
 Pick. 89; Bridge v. Bggleston, 14 Mass. 245. 
 
 2 Wood V. Dixie, 7 Q. B. 892; Riches v. Evans, 9 C. & P. 940; Alton 
 V. Harrison, L. R. 4 Ch. 622; Boldero v. London Loan & Discount Co., 5 
 Ex. D. 47; Spencer v. Slater, L. R. 4 Q. B. D. 13; Hale v. Metr. Omnibus 
 Co., 28 L. J. Ch. 777; Farish v. McKay, 5 Up. Can. Q. B. 461; Hooker v. 
 Jarvis, 6 Up. Can. Q. B. (o. s.) 439; Armstrongs. Moodie, 6 Up. Can. 
 Q. B. (o. s.) 538; Conner ». Miller, 1 Kerr (N. B.), 302; Ingraham ». 
 Wheeler, 6 Conn. 277; Stacey v. Deshaw, 7 Hun, 449; Ford v. Johnston, 
 7 Hun, 663; Archer v. O'Brien, 7 Hun, 591; Bostwick v. Burnett, 74 N. 
 Y. 317; Francis v. Rankin, 84111. 169; Matthews «. Jordan, 88 III. 602; 
 Gray v. McAllister, 50 Iowa, 497; Story v. Agnew, 2 Bradw. 353: Mimmo 
 V. Kuykendall, 85 111. 476 ; Morris v. Tilson, 81 HI. 607 ; Dudley v. Dan- 
 forth, 61 N. Y. 626 ; Hauselt v. Vilmar, 2 Abb. N. C. 222 ; Kinnear v. 
 White, 2 Kerr (N. B.), 235; Hay ward v. White, 2 Kerr, 319; Doak v, 
 Johnson, 2 Kerr, 319; Dalglish v. McCarthy, 19 Grant (Ont.), 578; Clark 
 V. Morrell, 21 Up. Can. Q. B. 596; Oriental Bank v. Haskins, 3 Met. 340; 
 Wadsworth o. Williams, 100 Mass. 131; Clapp ». Tirrell, 20 Pick. 247 ; 
 Verplauck v. Sterry, 12 Johns. 563; Wright v. Brandis, 1 Ind. 336; 
 Ruffing V. Tilton, 12 Ind. 260; Hughes v. Monty, 24 Iowa, 499; Chapel 
 V. Clapp, 29 Iowa, 194; Wright v. Howell, 35 Iowa, 292; Carpenter v. 
 Murin, 42 Barb. 300; Jackson o. Henry, 10 Johns. 185; Somes v. Brewer, 
 2 Pick. 184. 
 248 
 
CH. Xni.] FRAUDULENT SALES. § 174 
 
 sideration, the purchaser must actually know of the fraudu- 
 lent intent. It is held that it is not sufficient if he only 
 has reasonable cause to suspect or believe that the seller 
 has such a fraudulent intent.* The vendor's fraudulent 
 intent may be established by any competent testimony. 
 Each case stands upon its own footing, and the court and 
 jury must examine into the circumstances of the particular 
 case, and determine from them whether the sale was made 
 in good faith or for the purpose of defeating the creditors.^ 
 
 Under the term valuable consideration is included every- 
 thing possessing a pecuniary value, and likewise a promise 
 to marry, as well as actual marriage. Conveyances pos- 
 sessing any one of these considerations are not voluntary.'' 
 But, although the valuable consideration must be substan- 
 tial, in order to protect the purchaser against the claims of 
 the seller's creditors, it need not be adequate.* 
 
 If a transfer of property is made without a substantial 
 valuable consideration, while the grantor is in debt, exist- 
 ing creditors can, under certain circumstances at least, 
 avoid the conveyance, and satisfy their demands by pro- 
 ceeding against the property. If the conveyance is to any 
 one except a child or wife, or, in other words, where there 
 
 1 Carroll u. Hayward, 124 Mass. 121; States. Merritt, 70Mo. 275; 
 Kyle V. Ward, 1 So. Eep. 468. But see, apparently contra, Lyons v. 
 Hamilton, 69 Iowa, 47; Bartles v. Gibson, 17 Fed. Eep. 293. 
 
 2 Hale V. Metr. Omnibus Co., 28 L. J. Ch. 777; Lang v. Stockwell, 55 
 N. H. 561 ; Solomon v. Moral, 53 How. Pr. 342 ; Cutting v. Jackson, 56 
 N. H. 253; Jones v. Nevers, 2 Pugs. & Bur. 627. 
 
 3 Eodgers v. Langham, 1 Sid. 133; Washband v. Washband, 27 Conn. 
 424; Huston v. Cantril, 11 Leigh, 176; Rockhill ?j. Spraggs, 9 Ind. 32. 
 So taking the goods for a pre-existing debt is a sale for a valuable con- 
 sideration. Dudley v. Danforth, 61 N. Y. 626. See post, § 175, fraudu- 
 lent preferences. 
 
 * Washband v. Washband, 27 Conn. 424; Salmon v. Bennett, 1 Conn. 
 525; Keade v. Livingston, 3 Johns. Ch. 500; Mercer v. Mercer, 29 Iowa, 
 557; Doe v. Hurd, 1 Blackf. 510; Bullitt v. Taylor, 34 Miss. 708; Lerow 
 V. Wilmarth, 9 Allen, 880; Sexton v. Wheaton, S.Wheat. 229; Hinde's 
 Lessee v. Longworth, 11 Wheat. 199. 
 
 249 
 
§ 174 FRAUDULENT SALKS. [CH. XIII. 
 
 is not even a good consideration passing between the 
 parties, the conveyance is presumptively void as against 
 the existing creditors, i.e., those who were already credi- 
 tors at the time of the conveyance.^ But if a voluntary 
 conveyance is made to a wife and child, and at the time of 
 the conveyance sufficient property was left in the hands of 
 the grantor to amply secure existing creditors, the convey- 
 ance will nevertheless be presumptively good against the 
 creditors. But if the grantor is insolvent at the time of 
 conveyance, it may be avoided by the existing creditors.^ 
 But this presumption which is sometimes called constructive 
 fraud, because no actual fraud is required to be estab- 
 lished,^ — is not a conclusive presumption of fraud or bad 
 faith, and it may be rebutted bj'' positive evidence to the 
 contrary.* The existence of a fraudulent intent is a ques- 
 tion for the jury, to be determined upon a consideration of 
 all the facts of each case,^ and the burden of proof is on 
 the party alleging the fraudulent intent.^ 
 
 Although it is doubtful, according to the authorities, 
 
 1 Sexton V. Wheaton, 8 Wheat. 229; Hinde's Lessee v. Longworth, 
 11 Wheat. 199; Lerow v. Wilmarth, 9 Allen, 386; Reade u. Livingston, 3 
 Johns. Ch. 500; Salmon v. Bennett, 1 Conn. 525; Washband v. Wash- 
 band, 27 Conn. 424; Doe v. Hurd, 7 Blackf. 510; Mercer v. Mercer, 29 
 Iowa, 557; Bullitt v. Taylor, 34 Miss. 708. 
 
 2 Lerow v. Wilmarth, 9 Allen, 386; Pomeroy v. Bailey, 43 N. H. 118; 
 Van Wyck v. Seward, 6 Paige, 62; Baker v. Bliss, 39 N. T. 70; Posten v. 
 Posten, 4 Whart. 42; Miller v. Pearce, 6 Watts & S. 101; Gridley v. 
 Watson, 53 111. 193; Bridgford v. Eiddel, 55 IlL 261; Pratt v. Myers, 56 
 III. 24; Stewart v. Rogers, 25 Iowa, 395; Baldwin v. Tuttle, 23 Iowa, 74. 
 
 •'■ Reade u. Livingston, 3 Johns. Ch. 481; Wadsworth v. Havens, 3 
 Wend. 412; Early v. Owens, 68 Ala. 171. 
 
 * Lerow v. Wilmarth, 9 Allen, 386; Hlnde ». Longworth, 11 Wheat. 
 199; Genesee River Bank v. Mead, 92 N. Y. 637. 
 
 ^ Jackson v. Mather, 7 Cow. 301; Jamison v. King, 50 Cal. 132; Harris 
 V. Burns, 50 Cal. 140; Clark v. Morrill, 21 Up. Can. Q. B. 600; 5 Up. Can. 
 Q. B. 561. 
 
 6 Elliott o. Stoddard, 98 Mass. 145; Brb v. Cole, 31 Ark. 554; Morgan 
 ■d. Olvey, 53 Ind. 6; Jewetto. Cook, 81 111. 260; Tontpkins v. Nichols, 53 
 Ala. 197. 
 
 250 
 
CH. XIII.J FRAUDULENT SALES. § 174 
 
 whether subsequent creditors can claim any benefit from 
 the avoidance of a transfer of property on account of con- 
 structive fraud upon creditors, where the action for avoid- 
 ance is brought by a contemporaneous creditor, there being 
 authority in support of both the affirmative ^ and the nega- 
 tive'' sides of the proposition; yet, it is settled that the 
 subsequent creditor cannot talie the initiative in avoidance 
 of the transfer, unless it has been made with an actual 
 fraudulent intent ; ^ and this intent must be shown to de- 
 fraud the subsequent creditors.* When an intent to de- 
 fraud subsequent creditors is established, the transfer may 
 be avoided by subsequent as well as by existing creditors.® 
 It would thus be a fraud against subsequent creditors for 
 one to transfer property to another without consideration, 
 in anticipation of incurring greater liabilities or of embark- 
 ing in an unusually hazardous business or speculation, 
 whereby the available assets of the debtor are appreciably 
 diminished.' 
 
 1 Spirettij. Willows, 3 De Gex, J. & S. 293; Bonazina v. Leed, 3 Low. 
 Can. 446; Carter v. Grimshaw, 49 N. H. 100; MoLane v. Johnson, 43 Vt. 
 48; Bank v. Eattenberg, 7 Grant (Ont.), 383. 
 
 2 See Shand v. Hanley, 71 N. Y. 319; Snyder v. Christ, 39 Pa. St. 499; 
 Monroe i;. Smith, 79 Pa. St. 459; Dorley v. McKiernan, 62 Ala. 34; Lloyd 
 V. Bunce, 41 Iowa, 660; Sanders v. Chandler, 26 Minn. 273; Lehmberg v. 
 Biberstein, 51 Tex. 457; Harlin v. Maglaughlan, 90 Pa. St. 293; Mullen 
 V. Wilson, 44 Pa. St. 413; Arrowsmith u. O'Sullivan, 44 N. Y. Supt. Ct. 
 573. 
 
 2 Thacher v. Phinney, 7 Allen, 150; Heal v. Warren, 2 Gray, 447; 
 Traftou v. Hawes, 102 Mass. 641; Lormore v. Campbell, 60 Barb. 62; 
 Stone V. Myers, 9 Minn. 311; Sexton v. Wheaton, 8 Wheat. 229; Howe v. 
 Ward, 4 Greenl. 195. 
 
 * Winchester v. Charter, 12 Allen, 606; 97 Mass. 106. 
 
 5 Marston B. Marston, 54 Me. 476; Parkman v. Welch, 19 Pick. 231; 
 Coolidge V. Melvin, 42 N. H. 521; Eedfleld v. Buck, 35 Conn. 329; Paulk 
 V. Cooke, 39 -Conn. 566; Van Wyck v. Seward, 6 Paige, 62; Savage v. 
 Murphy, 34 N. Y. 508 ; Case v. Phelps, 39 N. Y. 164 ; Williams v. DavLs. 
 69 Pa. St. 21; Bridgeford v. Riddel, 55 111. 261; Herschleldt v. George, 6 
 Mich. 466; Bullitt v. Taylor, 34 Miss. 740; Pratt v. Myers, 56 111. 24. 
 
 « Thacher v. Phinney, 7 Allen, 146 ; Wadsworth v. Williams, 100 Mass. 
 
 251 
 
§ 175 FRAUDULENT SALES. [CH. XIII. 
 
 In order that, in any case, a sale maybe avoided by cred- 
 itors, it is held that the thing sold must be subject to levy 
 and sale under execution. The conveyance of property 
 which is exempted from levy under the homestead and ex- 
 emption law cannot be avoided by creditors for being vol- 
 untary, at least according to most of the authorities.^ But 
 there are cases which hold to the contrary, viz. : that the 
 voluntary conveyance to a third person without considera- 
 tion is an act of abandonment, a fraud upon creditors, and 
 the creditors may attach the property in the hands of the 
 grantee.^ 
 
 § 175. Preferences by insolvents in transfer of property 
 in payment of debts, when fraudulent — Voluntary as- 
 signments for b.eneflt of creditors. — In pursuance of the 
 general rule, already explained in preceding paragraph, 
 viz. : that the transfer of goods by an insolvent is never 
 presumed to be fraudulent, where it is supported by a val- 
 uable and substantial consideration, it is very generally 
 held that there is no implied fraud, where a debtor makes 
 a transfer of his property or a part of it, to one or moro 
 creditors, in payment of their claims, to the exclusion of 
 other creditors, who, on account of the want of sufficient 
 assets of the debtor, are thereby left without an equivalent 
 
 126; Dood V. Adams, 125 Mass. 398; Kirksey v. Snedecor, 60 Ala. 192; 
 Mattlngly u. Nye, 8 Wall. 370; Graham v. Railroad Co., 102 U. S. 153; 
 Smith w. Hodges, 92 U. S. 183; Sextons. Wheaton, 8 Wheat. 229; Car- 
 penter V. Carpenter, 25 N. J. Eq. 194; Day v. Cooley, 118 Mas?. 524: 
 Winchester ». Charter, 12 Allen, 606; Beal v. Warren, 2 Gray, 447; Pel- 
 ham V. Aldrich, 8 Gray, 615; Carpenter v. Roe, 10 N. Y. 227; Babcock v. 
 Eckler, 24 N. Y. 623 ; Dygert v. Reraerschnider, 32 N. Y. 648. 
 
 1 Gassett v. Grant, 4 Met. 490; Danforth v. Seattle, 43 Vt. 138; Wood 
 V. Chambers, 20 Tex. 254; Dreutzer «. Bell, 11 Wis. 114, See, also, 
 Winebrenner u. Weisinger, 3 B. Mon. 33; Dearman o. Dearman, 4 Ala. 
 521; Planters' Bank v. Henderson, 4 Humph. 75; Legro v. Lord, 10 Me. 
 161; Vaughan v. Thompson, 17 111. 78; Foster v. McGregor, 11 "Vt. 595; 
 Garrison v. Monaghan, 33 Pa. St. 232. 
 
 2 Currier v. Sutherland, 54 N. H. 475 (20 Am. Rep. 143). 
 
 252 
 
CH. XIII. J FRAUDULENT SALES. § 175 
 
 remedy. At common law, this is not only the rule where 
 the godds are transferred directly to a particular creditor 
 or number of creditors,^ but also, where the transfer is 
 made to a trustee, in trust for the benefit of a number of 
 creditors, and in satisfaction of their claims, to the exclu- 
 sion of others.^ And in such an assignment for the benefit 
 of creditors, although there are many cases to the contrary* 
 it has been held to be lawful for a debtor to stipulate that 
 the acceptance of a benefit under the assignment by a cred- 
 itor must be conditional upon his release of the creditor's 
 claim for the remainder of the debt, which is left unpaid 
 lifter a pro rata division of the property in the hands of 
 the assignee.^ It would, however, be a fraud, which would 
 
 1 Klngi). Watson, 3 Price, 6; Bufeum v. Green, 5 N. H. 71; Wall v. 
 Lakin, 13 Mot. 167; Deforest v. Bacon, 2 Conn. 683; Hendricks «. Robin- 
 son, 2 Johns. Ch. 308; Groverj;. Wakeman, 11 Wend. 194; Wiltu. Frank- 
 lin, 1 Binn. 602; Bruce v. Smith, 3 Harr. & J. 499; Moffatt v. McDowell, 
 1 McCord Eq. 434; United States v. Bank, 8 Kob. (La.) 262; Fasset v. 
 Traber, 20 Ohio, 640 ; Marbury v. Brooks, 7 Wheat. 556 ; Brasliear v. 
 West, 7 Pet. 6"8; Brown v. Minturn, 2 Gall. (U. S.) 657; Ford v. Will- 
 iams, 3 B. Mon. 650; Stover ». Herrington, 7 Ala. 142; King v. Trice, 3 
 Ired. Eq. 567; Waters v. Comly, 3 Harr. 117; Leitch u. Hallister, 4 N. T. 
 211; NicoU V. Mumford, 2 Johns. Ch. 529; Bates v. Coe, 10 Conn. 280; 
 Stevens v. Bell, 6 Mass. 339 ; Johnson v. Whitwell, 7 Pick. 74 ; Pickstock 
 V. Lyster, 3 Manle & S. 371. 
 
 2 Holbird V. Anderson, 5 T. R. 235; Haven v. Richardson, 5 N. H. 113; 
 Ingratam v. Wheeler, 6 Conn. 277; Halsey ». Whitney, 4 Mason, 211; 
 Clark V. Peter, 13 Pet. 178; Tompkins o. Wheeler, 16 Pet. 106; Burd w. 
 Smith, 4 Dall. 85; Murray «. Riggs, 15 Johns. 571; Stevens o. Bell, 6 
 Mass. 342; Pickstock v, Lyster, 3 Maule & S. 371. 
 
 ^ Holding that the assignment must be free from conditions, in order 
 to escape being fraudulent. Searing ij. Brinkerhoff 6 Johns. Ch. 329; 
 Hyslo^j V. Clarke, 14 Johns. 459; Ingraham v. Geyer, 13 Mass. 146; Har- 
 ris V. Suitiner, 2 Pick. 129; Wakeman v. Grover, 4 Paige Ch. 23; Arm- 
 strong V. Byrne, 1 Edw. Ch. 79; Atkinson v. Jordan, 6 Ohio, 178 ; John- 
 son V. Farnam, 56 Ga. 144; Robins v. Embry, 1 Sm. & M. 208; Wilde v. 
 Rawlings, 1 Head, 34; Brown v. Knox, 6 Mo. 302; Hafner v. Irwin, 1 
 Ired. L. 490; Millers. Conklin, 17 Ga. 430; Mills «. Levy, 2 Edw. Ch. 
 183; Austin v. Bell, 20 Johns. 442. 
 
 •* i-Iatch V. Smith, 5 Mass. 42; Hewlett v. Cutler, 137 Mass. 285; King 
 J). Watson, 3 Price, 6; Skipwith i;. Cunningham, 8 Leigh, 271; Small o- 
 
 253 
 
§ 175 FRAUDULENT SALES. [CH. XIII. 
 
 Vitiate the whole transaction, if some of the creditors are 
 induced to sign a release under the assignment, in consid- 
 eration of receiving a secret payment of a part or the whole 
 of the balance left unpaid by the distribution under the as- 
 signment. ^ It would, also, be fraudulent, in a deed re- 
 quiring a release of the balance of the debt as a condition 
 precedent to sharing in the benefits of the assignment, to 
 provide for the return of the surplus to the grantor,^ where- 
 as such a provision for a return of the surplus to the 
 grantor after a settlement of all the debts is unobjection- 
 able in a general and absolute assignment lor the equal ben- 
 efit of all creditors, and one which will be implied by the 
 law if it is not expressly made.^ But this is only permis- 
 sible, where the assignment is for the benefit of all the 
 creditors,^ it being required wherever such an assignment is 
 valid, that the rest of the property must go to the creditors 
 not provided for under the provisions of the assignment.* 
 
 Marwood, 9 B. & C. 300; Dockray v. Dockray, 2 R. I. 547; Porter u. Will- 
 iams, 5 Seld. 142; Allen v. Gardner, 7 E. I. 22; Hindman v. Dill, 11 Ala. 
 689; Pfeifer v. Dargan, 14 S. C. 44; Gordon v. Cannon, 18 Gralt. 387 
 Austin V. Johnson, 7 Humph. 191; Robinson v. Bapelye, 2 Stew. 86 
 Stewart v. Spencer, 1 Curt. C. C. 157; Keating v. Vaughan, 61 Tex. 518 
 Eamsdell v. Sigerson, 2 Gill, 78 ; Ely v. Hair, 16 B. Mon. 208 ; Grimshaw 
 ■a. Walker, 12 Ala. 101; D'lvemois v. Leavitt, 23 Barb. 63; Barney v. 
 Griffln, 4 Sandf. 552; Goss v. Neale, 5 Moore, 29; Halsey v. Whitney, 4 
 Mason, 230. 
 
 1 1 Story Eq. Jur., § 378, and cases there cited; Spurritt v. Spiller, 1 
 Atk. 105; Chesterfield t). Janssen, 1 Atk. 852; Smith v. Bromley, Dongl. 
 696. 
 
 ^ Grimshaw o. Walker, 12 Ala. 101; Rankin v. Lodor, 21 Ala. 380; 
 Westu. Snodgrass, 17 Ala. 549; Clayton u. Johnson, 36 Ark. 406; Mc- 
 Callv. Hinckley, 4 Gill, 128; Whedbee v. Stewart, 40 Md. 414; Maugh- 
 lin v. Tyler, 47 Md. 545. 
 
 3 Halsey «;. Whitney, 4 Mason, 222; Van Rossum v. Walker, 11 Barb. 
 287; Curtis v. Leavitt, 15 N. Y. 120; Potter v. Paige, 54 Pa. St. 465; Hall 
 V. Denison, 17 Vt. 310. 
 
 * Barney v. Griffln, 2 N. Y. 865 ; Leitch v. Hollister, 4 N. Y. 211. 
 
 « Ely V. Hair, 16 B. Mon. 230; Miller v. S etson, 32 Ala. 161 ; Bank v. 
 Gorman, 8 W. & S. 304; N. A. & S. R. v. HufE, 19 Ind. 444; Burglnu., 
 Burgln, 1 Ired. L. 453. 
 254 
 
CH. XllI.J FRAUDULENT SALES. § 175 
 
 But the United States bankrupt laws, whenever they 
 have been in force subject the whole matter of preferential 
 settlements with creditors to statutory regulations, which 
 are designed to secure an equitable distribution among the 
 creditors, and some of the State insolvent laws^ go the 
 length of prohibiting all preferential assignments and trans- 
 fers of property to creditors, whether they are made in- 
 directly to an assignee or directly to the creditor in payment 
 of his claim. ^ It is, however, the general rule in this 
 country that a debtor in failing circumstances may, by 
 transfers of property, at least in any other mode than by 
 assignments in trust, settle the claims of one or more 
 creditors to the exclusion of others, wherever there is an 
 honest intention to pay a bona fide debt.* And such a 
 transfer was held to be valid under the late national bank- 
 rupt law, as wejl as under many of the State insolvent 
 laws, as long as it was not made when both seller and 
 buyer contemplated a speedy assignment in bankruptcy.* 
 
 1 See Berry ». Cutts, 42 Me. 455 ; Varnura v. Camp, 1 Greenl. 326 ; 
 Brown v. Lee, 7 Ga. 267; Bryan v. Burbiu, 26 Mo. 423; Gar! u. Hill, 1 
 Stock. Ch. 210; Brown v. Holcomb, I Stock. 297. 
 
 2 There are statutes to tliat effect in Alabama, California, Colorado, 
 Connecticut, Delaware, Illinois, Indiana, Iowa, Kitnsas, Kentucky, 
 Louisiana, Maine, Massachusetts, Michigan. Minnesota, Missouri, Ne- 
 braska, New Hampshire, New Jersey, Ohio, Oregon, Pennsylvania, 
 Rhode Island, Tennessee, Vermont, Wisconsin. In some of the States, 
 the statutes simply nullify the preferential provision instead of invali- 
 dating the whole assignment. Henderson v. Pierce, 9 N. E. Rep. 440; 
 Kerbs ». Ewiug, 22 Fed. Eep. 693; Nelson v. Garey, 15 Neb. 531 ; Smith 
 V. Bowen, 61 "Wis. 258. 
 
 3 York Co. Bank v. Carter, 38 Pa. St. 446, 453; Covanhovanu. Hart, 21 
 Pa. St. 495; Tompkins v. Wheeler, 16 Pet. 118; Marbury v. Brooks, 7 
 Wheat. 656; 11 Wheat 78; Fergusons. Spear, 65 Me. 277; Clarke o. White, 
 21 Pet. 178; Whitehead v. Woodruff, 11 Bush, 209; Hill v. Bowman, 3!> 
 Mich. 191 ; Fleischer v. Dignon, 53 Iowa, 288 ; Butler v. White, 25 Minn. 
 432; Blennerhassett w. Sherman, 105 U. S. 117; Gage b. Cheesbro, 49 
 Wis. 494; Beurman u. Van Buren, 44 Mich. 496 ; Eldrldge w. Phillipson, 58 
 Miss. 270; Dudley v. Danforth, 61 N. Y. 626; Smith t). Skeary, 47 Conn. 
 47,64; BrighamB.Fawcett,42 Mich. 542; Gaus «. Reushaw, 2 Pa, St. 36. 
 
 * Lincoln v. Wilbur, 125 Mass. 249; Hauselt v. Vilmar, 76 N. Y. 630; 
 
 255 
 
§ 176 FRAUDULENT SALES. [CH. XIII. 
 
 But, in every case, where the transfer is ostensibly for 
 the purpose of paying an honest debt, but actually to 
 hinder and defraud creditors, while the goods continue 
 secretly to be the property of the debtor, the transfer is, 
 of course, fraudulent, and the creditors may avoid it and 
 proceed against the property.^ 
 
 § 176. Conflicting claims of vendor and vendee's cred- 
 itors As soon as the title of the goods has passed to the 
 
 vendee, his creditors have a right to the goods as a part of 
 the debtor's assets; and if the vendee redelivers the goods 
 to the vendor, it constitutes a preferential satisfaction of a 
 debt, and is fraudulent or not, in accordance with the gen- 
 eral principles set forth in the preceding two sections.^ 
 Thus, it would be a preference to the vendor as a creditor, 
 if the goods were returned to him after the vendee had 
 acquired absolute possession of the goods ; * whereas, it is 
 not a preference of a creditor for the vendee to return the 
 goods, or allow the vendor time enough to exercise his right 
 ot stoppage in transitu, before the goods have come into the 
 
 Getman v. Oswego Bank, 23 Hun, 498; Bentz v. Rockey, 69 Pa. St. 76; 
 Jones e. Sayer, 52 Md. 211; Sife v. Earman, 26 Gratt. 566; Fraser ». 
 Thatcher, 49 Tex. 26; Gardner v. Commercial Bank, 95 III. 298; Grant v. 
 National Bank, 97 U. S. 80; Barbour v. Priest, 103 U. S. 293; Gottwalls 
 V. MulhoUand, 15 Up. Can. C. P. 62; Eish v. Sherman, 21 Grant Ch. 
 (Ont.J 250; Blennerhassett v. Sherman, 105 U. S. 100; Rogers v. Palmer. 
 102 TJ. S. 268; Auffln'ordt v. Raisin, 102 U. S. 620; Van Patten h. Burr, 
 62 Iowa, 518; Scott v. Alford, 53 Tex. 82; Eldridge v. Phillipson, 58 
 Miss. 276; Dance v. Searman, 11 Gratt. 778; Zahn v. Fry, 10 Phila. 247; 
 Frazier v. Fredericks, 24 N. J. L. 162; Guernsey v. Miller, 80 N. Y. 181; 
 James v. Mechanics' Bank, 12 R. I. 460; Farwell v. Jones, 63 Iowa, 316; 
 Perry v. Vezina, 63 Iowa, 25; Nelson v. Garey, 15 Neb. 531; Gallagher's 
 App., 7 Atl. Eep. 237; Evans v. Winston, 74 Ala. 349. 
 
 1 Roberts v. Eadcliffe, 35 Kan. 502. 
 
 2 §§174,175. 
 
 3 Barnes ». Freeland, 6 T. R. 80; Neate v. Ball, 2 East, 123; Richard- 
 eon V. Goss, 3 Bos. & P. 119; Heineckey v. Earle, 8 El. & B. 410; Atkins 
 V. Barwick, 1 Stra. 165; 10 Mod. 432; Salts v. Field, 5 T. R. 211. 
 
 256 
 
CH. Xm.J FRAUDULENT SALES. § 177 
 
 actual possession of the vendee. ^ In a preceding chapter, 
 a full discussion is given of the question, when the transfer 
 of title takes place.^ To the sections of this chapter the 
 reader is referred for a further pursuit of this inquiry, it 
 being sufficient to say in this connection that the creditors 
 of the vendee have an interest in the goods, as soon as the 
 title has passed to the vendee. 
 
 § 177. Fraud on creditors, on account of vendor's re- 
 tention of possession of goods. — It has been shown else- 
 where ^ when and how far the retention of possession of the 
 goods by the vendor after a sale, will invalidate the sale on 
 the ground of being a fraud on creditors and subsequent 
 purchasers. It will, therefore, be unnecessary to do more 
 here than to refer the reader to the preceding section. 
 
 1 Atkins V. Barwick, 10 Stra. 165; Smith v. Field, 5 T. R. 402; Wliite- 
 head v. Anderson, 9 M. & W. 529; Bartram v. Farebrothers, 4 Bing. 579; 
 Bolton V. Lancashire, &c., E. Co., L. E. 1 C. C. 431; 35 L. J. C. P. 137. 
 
 ^ See ante, ch. VIL 
 
 " See ante, § 84a. 
 
 17 257 
 
CHAPTER XIV. 
 
 WARRANTY. 
 
 Section 180, Warranty defined and distinguished from other liabilities. 
 
 181. The consideration of a warranty. 
 
 182. Kinds of warranties — Express and implied — Of title and 
 
 quality. 
 
 183. Power of agent to bind principal by warranties. 
 
 184. Express warranty of title. 
 186. Implied warranty of title. 
 
 186. How and when the warranty of title is broken. 
 
 187. Implied warranty of quality — When there is and is not 
 
 an opportunity for inspection of goods. 
 
 188. Sales by sample. 
 
 189. Identity Of liind — Sales by description. 
 
 190. Implied warranty of merchantability — Manufacturer's 
 
 liability — Fitness for a particular use. 
 
 191. Implied warranty in sales of provisions. 
 
 192. EfEect of usage on implied warranties of quality. 
 
 193. Forms of express warranties — Affirmations and expres- 
 
 sions of opinion — Express warranties distinguished 
 from fraud. 
 
 194. Interpretation of warranties — Unsoundness in animals — 
 
 Warranties as to future conditions. 
 
 195. Express warranties in relation to patent or obvious defects. 
 
 196. Written and oral warranties. 
 
 197. Remedies for the breach of warranty. 
 
 § 180. Warranty defined and distinguished from other 
 liabilities. — Warranty, which is a synonym of guaranty, 
 is an agreement, express or implied, to be responsible for 
 all damages, if a statement or assurance of a fact eventually 
 proves to be false. ^ When the assurance is that a certain 
 
 1 See Neave v. Arutz, 56 Wis. 174; Jones v. George, 61 Tex. 345; Dorr 
 V. Fisher, 1 Cush. 273; Gary v. Gruman, 4 Hill, 626; Bagley b. Cleveland 
 Rolling Mill Co., 21 Fed. Rep. 159; Reynolds ». Palmer, 21 Fed. Rep. 
 258 
 
CH. XIV. J WARRANTY. § 180 
 
 debt will be paid, it is called a guaranty ; when it relates to 
 the title or quality of property, it is called a warranty. 
 Although the warranty, express or implied, is a common 
 accompaniment of the contract of sale, it is only collateral 
 to it, and is in no sense a necessary part of it.^ 
 
 It is to be distinguished from fraud, in that the grava- 
 men of fraud is the deceit ; whereas, in warranties, the 
 liability rests upon an express or implied agreement to be 
 responsible for the consequences of a material misrepre- 
 sentation, irrespective of any intention to deceive. Actions 
 on the warranty are necessarily ex contractu: while actions 
 for fraud may be, at the option of the party defrauded, 
 either ex contractu or ex delicto? But if the misrepresen- 
 tation is accompanied by a fraudulent intent to deceive, it 
 may support an action for fraud, as well as an action for 
 breach of the warranty.'* 
 
 The warranty is also to be distinguished from a condi- 
 tion, in that the breach of the warranty simply gives rise 
 loan action for damage; wherens the entire contract, is 
 suspended or avoided by the breach of the condition, which 
 is annexed to it,* although the warranty is sometimes 
 treated ms a condition precedent for the purpose of avoid- 
 ing circuity of action.^ 
 
 439, note; Harley v. Iron Works, 66 Gal. 238; Chanter v. Hopkins, 4 M. 
 & W. 404. 
 
 1 McFarland v. Newman, 9 Watts, 55. 
 
 2 Bostwick V. Lewis, 1 Day, 250 ; Dye v. Wall, 6 Ga. 684 ; Wardell v. 
 I'osdick, 18 Johns. 325; Waterbury «. Russell, 8 Baxt. 169; Clark v. 
 Bamer, 2 Lans. 67; Larey «. Taliaferro, 57 Ga. 443; Vail v. Strong, 10 
 Vt. 467; Hillmau v. Wilcox, 30 Me. 170. It is not necessary to prove 
 deceit in an action of warranty, even where it has been alleged. Ship- 
 pen ». Bowen, 122 U. S. 575. 
 
 2 Hughes V. Funston, 23 Iowa, 257. See Sherman u. Johnson, 56 Barb. 
 59; Rose v. Hurley, 39 Ind. 77. 
 
 * Dorr V. Fisher, 1 Cush. 273. 
 
 * See Boardman ». Spooner, 13 Allen, 361; Dorr v. Fisher, 1 Cush. 
 273; Morse «. Brackett, 98 Mass. 200. As to right to rescind the con- 
 tract, restore the property and recover the price for the breach of a 
 warranty, see post, § 197. 
 
 259 
 
^!l 
 
 § T05- WAREANTT. [CH. XIV. 
 
 Although it has been held that a warranty cannot be ef- 
 fective, except in connection with the executed contract of 
 sale 1 and although this is true, so far that an action for 
 damages cannot be maintained for the breach of the war- 
 ranty, until the property has passed to the purchaser ,2 and 
 the contract is thus executed, the warranty is still effective 
 before execution of the sale, in that its breach or avoid- 
 ance furnishes to the buyer a justification or defense for 
 refusing to accept the goods. ^ 
 
 § 181. The consideration of a warranty. — A warranty, 
 being a contract, is not binding, unless it is supported by 
 some valuable consideration. If made at the time or as a 
 part of the contract of sale, the price of the goods will be 
 the consideration alike of the contract to sell and of the 
 warranty. And this is the case whether the warranty was 
 made some time before the malsing of the contract of sale, 
 provided it operated as an inducement to make the pur- 
 chase * or whether it was made after the making of the con- 
 tract, provided it is made before the completion of the 
 details.^ But if the warranty is made after the completion 
 of the contract of sale, then it is not valid or binding on 
 the seller, unless it is supported by some new and inde- 
 pendent consideration.® But any slight though material 
 consideration will suffice, such as a waiver of the right of 
 rejection of the goods, because they were not delivered in 
 
 ^ Osborn v. Gantz, 60 N. Y. 549; Harley v. Iron Works, 66 Cal. 238. 
 
 2 Frye v. Milligan, 10 Ont. 609. 
 
 « See Polhemus v. Heiman, 45 Cal. 673; Maxwell o. Lee, 27 N. W. 
 Rep. 196; Foot v. Bentley, 44 N. Y. 166; Day v. Pool, 52 N. Y. 416; Parks 
 V. Morris, &c., Co., 54 N. Y. 686; Brigg v. Hilton, 99 N. Y. 517; Kent v. 
 Friedman, 3 N. E. Rep. 905; Gibson v. Stevens, 8 How. 384. 
 
 * Wilraoto. Hurt, 11 "Wend. 684. 
 
 ^ Vincent v. Leland, 100 Mass. 432. 
 
 " Bryant v. Crosby, 40 Me. 9 ; James v. Bocage, 45 Ark. 284 ; Bloss v. 
 Kittridge, 5 Vt. 28; Summers v. Vaughn, 35 Ind. 323; Morehouse v. 
 Comstock, 42 Wis. 626; Grant v. Cadwell, 8 Up. Can. Q. B. 161; Towell 
 V. Gatewood, 2 Scam. 24; Hogias v. Plympton, 11 Pick. 99. 
 260 
 
CH. XIV.] WARRANTY. § 182 
 
 time.' And if a warranfy had been promised during the 
 negotiations for the sale, it would be supported by the 
 same consideration with the contract of sale, and would 
 need no independent consideration, although the warranty 
 was actually written after the completion of the contract.^ 
 This question of consideration can only arise in respect 
 to express warranties, for, manifestly, implied warranties 
 would arise in connection with, and as a part of, the con- 
 tract of sale, and would therefore always be supported by 
 the consideration of the primary contract. 
 
 § 182. Kinds of warranties — Express and implied — 
 Of title and of quality. — A* warranty may be express or 
 implied. It is express, when the seller actually assures the 
 buyer of the existence or non-existence of a fact, and im- 
 plied, when the law deduces or infers that assurance from 
 the execution of the contract of sale.' But an implied 
 warranty only arises when there is no express warranty ; 
 hence an express warranty will always exclude an im- 
 plied one,* even where the express warranty relates to one 
 quality, and the implied warranty has reference to another 
 and independent quality.* But if the express warranty re- 
 lates to a quality, it will not exclude an implied warranty 
 of title; nor vice versa. There is no contradiction be- 
 tween such express and implied warranties.* 
 
 1 Congar v. Chamberlain, 14 Wis. 258 ; Porter v. Pool, 62 Ga. 238. 
 
 2 Cole V. Weed, 68 Wis. 
 
 ^ Borrekins v. Bevan, 3 Rawle, 23; Otts v. Alderson, 10 Sm. & M. 476; 
 Terhune v. Dever, 36 Ga. 648; Osgood v. Lewis, 2 Har. & G. 405; Neave 
 0. Arntz, 56 Wis. 174. 
 
 ■* McGraw v. Fletcher, 35 Mich. 104; Lainer v. Auld, 1 Murph. 138; 
 Jackson v. Langston, 61 Ga. 392. See Houston v. Gilbert, 3 Brev. 63; 
 Boothby v. Scales, 27 Wis. 633; Merriam v. Field, 24 Wis. 640. 
 
 ^ Jackson v. Langston, 61 Ga. 392; Baldwin v. Van Deusen, 37 N. Y. 
 487; McGraw v. Fletcher, 35 Mich. 104; Mallain v. Thomas, 43 Conn. 
 252; Dening ■». Foster, 42 N. H. 175; International Pavement Co. •». 
 Smith, 17 Mo. App. 264. 
 
 6 See Wells e. Spears, 1 McCord, 421; Wood v. Ashe, 3 Strobh. 64; 
 Trimmier B. Thomson, 10 S. C. 164. _-.. 
 
§ 183 WARRANTY. [CH. XIV. 
 
 Warranties are also divisible into warranties of title and 
 of quality. And under warranties of quality are included 
 warranties of identity of the property. They will be dis- 
 cussed in succeeding paragraphs. SuflSce it to say here, 
 generally, that both classes of warranties, of title and of 
 quality, may be either express or implied. 
 
 § 183. Power of agent to bind principal by warran- 
 ties. — Since implied warranties are involuntary incidents 
 of the contract of sale, no question can arise as to the 
 power of agents to bind their principals by them ; for if 
 the agent has the power to sell, the warranty will be im- 
 plied from the sale. And if the express warranty is noth- 
 ing more than what the law will imply, the principal would 
 be bound by it, as, for example where the agent undertakes 
 to warrant conformity of the goods to sample.^ 
 
 But where the agent undertakes without express au- 
 thority to warrant goods which he sells, where there would 
 be no implied warranty, it is very different, and the au- 
 thorities are somewhat conflicting. While there are a few 
 cases, which seem to hold that a general agent to sell will 
 have the implied power to warrant, in the absence even of 
 a general custom to warrant,^ the better opinion is that 
 neither a general agent ^ nor a special agent,* has the power 
 
 1 Murray v. Smith, 4 Daly, 277 ; Schuchardt v. Aliens, 1 Wall. 359 ; 
 Dayton v. Hooglund, 39 Ohio St. 671 ; Andrews v. Kneeland, 6 Cow. 354. 
 
 2 See Demlngc. Chase, 48 Vt. 382; Boothby v. Scales, 27 Wis. 635; 
 Flatt». Osborne, 33 Minn. 98; Talmage v. Bierhause, 103 Ind. 270; Mur- 
 ray V. Brooks, 41 Iowa, 45. 
 
 s Smith v. Tracy, 36 N. Y. 79; Anderson v. Bruner, 112 Mass. 14; 
 Upton 17. Sufeolk Co. Mills, 11 Cush. 586; Palmer ij. Hatch, 46 Mo. 385; 
 Herring v. Skaggs, 73 Ala. 446. 
 
 ' Cooley V. Perrine, 41 N. J. L. 322; 42 N. J. L. 623; Scott v. McGrath, 
 7 Barb. 53; Brady v. Todd, 9 C. B. N. S. 592; Decker v. Fredericks, 47 
 N. J. L. 592. So also, In regard to auctioneers. The Mount AUegre, 9 
 Wheat. 647; Blood «. French, 9 Gray, 198; Schelly. Stephens, 60 Mo. 
 375; and to brokers, Doddto Farlow, 11 Allen, 426; Smith v. Tracy, 36 
 N. Y. 39; Graul v. Strutzel, 53 Iowa, 712. 
 262 
 
CH. XIV.] WARRANTY. § 183 
 
 to warrant the goods which he sells, unless the power is 
 expressly given him, or it is universally customary for such 
 agents to give warranties. But if there is a general cus- 
 tom and usage of that kind, the power to warrant will 
 be implied from the power to sell.^ But if an express 
 authority to warrant is given to the agent with limita- 
 tions on the implied authority, and the purchaser knows 
 that the agent has an express authority to warrant, he 
 Ciinnot hold the principal liable on any warranty which 
 the agent might make outside of the express grant of 
 authority,^ 
 
 An unauthorized warranty may be subsequently ratified, 
 but it will take something more than the receipt of the price 
 in ignorance of the warranty being given, to constitute a 
 ratification. It must be some act of express or implied con- 
 firmation done after the principal has become aware of the 
 unauthorized warranty.' 
 
 In the case of expressly authorized warranties by agents, 
 the authority to warrant must be proven satisfactorily and 
 by competent testimony.* 
 
 1 McCormick v. Kelly, 28 Minn. 135; Upton v. Suffolk Co. Mills, 11 
 Cush. 586; Bryant v. Moore, 26 Me. 84; Smith v. Tracy, 36 N. Y. 39; 
 Murray v. Brooks, 41 Iowa, 45 ; Deming v. Chase, 48 Vt. 382 ; Huguley 
 V. Norris, 65 Ga. 666 ; Palmer v. Hatch, 46 Mo. 585; Schuchardt v. Aliens, 
 1 Wall. 359; Applegate v. Moffit, 60 Ind. 104; Ezell v. Franklin, 2 Sneed, 
 236; Dingle v. Hare, 7 C. B. N. S. 145; Ahern v. Goodspeed, 72 N. Y. 108; 
 Herring v. Skaggs, 62 Ala. 180; Skinner v. Gunn, 9 Fort. 305; Gaines v. 
 McKinley, 1 Ala. (n. s.) 446; Bradford v. Bush, 10 Ala. 386; Hunter v. 
 Jameson, 6 Ired. 252; Croom v. Shaw, 1 Fla. 211; Victor, &c., Co. v. 
 EheinscWld, 25 Kans. 534; Dayton v. Hooglund, 39 Ohio St. 671; Fay ». 
 Richmond, 43 Vt. 25; Boothby v. Scales, 27 Wis. 626; Tice v. Gallup, 2 
 Hun, 446; Nelson v. Cowing, 6 Hill, 336; Randall v. Kehlor, 60 Me. 37; 
 l/eering v. Thorn, 29 Minn. 120. 
 
 2 Wood Mowing, &c., Co. v. Crow, 30 N. W. 609; 70 Iowa, 340. 
 
 3 Smith V. Tracy, 36 N. Y. 39; Combs v. Scott, 12 Allen, 493. 
 
 * Smiles v. Hobbs, 2 N. E. Rep. (N. H.) 845; Churchill v. Palmer, llS 
 Mass. 310; Vogelj). Osborne, 32 Minn. 167; Melby v. Osborne, 33 Minn. 
 492; E,adie v. Ashbaugh, 43 Iowa, 519. 
 
 263 
 
§ 185 WARRANTY. [CH. XIV. 
 
 § 184. E}^press warranty of title. — There may, of 
 course, be an exi)ress warranty of title ; and, as to real 
 property, it is customary to have them, since, in the ab- 
 sence of statute, there is no implied covenant of title to 
 real property, except in the deed of feoffment. ^ But, in 
 respect to personal property, it is different. Express war- 
 ranties of title to personalty are rare ; but when they are 
 given they exclude the implied warranty.^ Any distinct 
 affirmation or assertion of title in the vendor would amount 
 to an express warranty.^ And inasmuch as affirmations 
 may be made by acts as forcibly as by words, it is held that 
 the affirmation may be proof of any act which is inconsist- 
 ent with a negation of the vendor's title.* But this brings 
 us to the consideration of the 
 
 § 185. Implied warranty of title. — According to the 
 early English rule, it seems that the courts did not recog- 
 nize any implied warranty of title to personal property any 
 more than to real property, the doctrine caveat emptor ap- 
 plying without limitation to the title of both species of 
 property.^ But, as it has been justly observed by Baron 
 Parke,* that may be accounted for, " on the ground that 
 in the older days the question of title did not enter into 
 men's minds or intentions, because the sales were commonly 
 made in market overt, where the title obtained by the buyer 
 was good against everybody but the sovereign." Andif the 
 old doctrine that there is no implied warranty of title to per- 
 
 1 Tiedeman Real Prop., §§ 849, 857, 859. 
 
 2 Sims V. Marryatt, 17 Q. B. 281; 20 L. J. Q. B. 454; Long v. Ander- 
 son, 62 Ind. 637. 
 
 * Burgess v. Wilkinson, 13 R. I. 646; Adamson, Jarvis, 4 Blng. 66. 
 
 •* See Eichholz v. Bannister, 17 C. B. (n. s.) 708; Sims v. Marryatt, 17 
 Q. B. 281 ; Brown v. Cockburn, 37 Up. Can. Q. B. 592 ; Bagneley v. Haw- 
 ley, L. B,. 2 C. P. 625; note to Scott v. Hix, 2 Sneed, 192. 
 
 ' ' See lilorley o. Attenborougli, 2 Ex. 500; note to Scott v. Hix, 2 Sneed, 
 192. 
 
 • Benjamin on Sales, § 636. 
 
 264 
 
CH. XIV.] WARRANTY. § 185 
 
 sonalty obtains at all to-day, it is hedged in and " has been 
 well eaten away " by numerous exceptions. ^ The author- 
 ities, both English and American, agree now that there are 
 implied warranties of title in very many sales of personal 
 property, and that there is no implied warranty of title in 
 other sales. But they are not quite agreed from what facts 
 or statements the warranty of title may be implied. They 
 only agree in holding that, where the vendor professedly 
 sells only whatever interest he might have in the property, 
 and expressly or impliedly repudiates any intention of as- 
 serting his title to the goods, there can be no implied war- 
 ranty of title ; for his attitude towards the goods is incon- 
 sistent with the inference of a warranty of title. ^ And there 
 is an equivalent negation of intention to warrant the title, 
 where one sells the property of another, while acting in the 
 capacity of sheriff, executors, mortgagees, assignees, 
 trustees and guardians. There is no implied warranty of 
 title in such sales. ^ 
 
 Inasmuch as the principles of the market overt were not 
 recognized in this country, and consequently the necessity 
 for a warranty of title was more strongly felt here than in 
 
 " Lord Campbell in Sims v. Marryatt, 17 Q. B. 281, 290. 
 
 2 Page V. Cowajee Eduljee, L. E. 1 P. C. 127 ; Bagneley v. Hawley, L. 
 K. 2 C. P. 625; Hopkins v. Grinnell, 28 Barb. 533; Jones w. Hungerford, 
 3 Met. 515; First Nat. Bank v. Mass., &c., Co., 123 Mass. 330. 
 
 3 The Monte Allegro, 9 Wheat. 616; Sheppard v. Earles, 13 Hun, 651; 
 Ricks ». Dillahunty, 8 Port. 133; Forsythe v. Ellis, 4 J. J. Marsh. 298; 
 Bingham v. Maxey, 15 111. 295; Harrison v. Shanks, 13 Bush, 620; Bost- 
 Wick V. Winton, 1 Sneed, 525; Hensley v. Baker, 10 Mo. 157; Hicks ». 
 Skinner, 71 N. C. 539; Corwin v. Benham, 2 Ohio St. 37; Baker v. Arnot, 
 67 N. Y. 448; Neal v. Gillaspy, 56 Ind. 451 ; Mockbee v. Gardner, 2 Harr. 
 & G. 176 ; Chapman v. Speller, 14 Q. B. 621 ; Bartholomew v. Warner, 32 
 Conn. 98; Eore v. McKenzie, 58 Ala. 115; Stephens v. Ells, 65 Mo. 456; 
 Storm V. Smith, 43 Miss. 497; Brunner v. Brennan, 49 Ind. 98; Hoe v. 
 Sanborn, 21 N. Y. 652; Scott v. Hix, 2 Sneed, 192; Mechanics' Assn. v. 
 O'Connor, 29 Ohio St. 651; Scranton v. Clark, 39 N. Y. 220; Blood v. 
 French, 9 Gray, 197. But such persons may make themselves liable on a 
 positive alHrmation or guaranty of title. Johnston v. Barker, 20 Up. 
 Can. Q. B. 228. 
 
 265 
 
§ 185 WARRANTY. [CH. XIV. 
 
 England, the American courts repudiated the English doc- 
 trine, that there was ho implied warranty of title in the 
 sales of personal property ; and in their effort to find a rule 
 for indicating where there was an implied warranty of title, 
 apparently determined to give a warranty of title, as near 
 as may be, in every case in which the principles of the 
 market overt would in England have aflforded ample protec- 
 tion ; and while there are a few cases which appear to lay 
 down a different rule, recognizing an implied warranty of 
 title in every sale of goods by the owner, where the seller 
 fails to disclose the defects of the title, or to disclaim the 
 Avarranty,^ the weight of authority recognizes an implied 
 warranty of title only in those sales, in which the seller has 
 the actual or potential possession of the goods, the posses- 
 sion of the goods being the fact from which the warranty 
 of title was implied.^ But the possession, which is required 
 
 1 See McKnight ». Devlin, 52 N. Y. 401; Hoe v. Sanborn, 21 N. Y. 652. 
 
 2 Ricks 13. Dillahunty, 8 Port. 134 ; Williamson v. Sammons, 34 Ala. 691 ; 
 Iiindsay ». Lamb, 24 Ark. 224; Starr B. Anderson, 19 Conn. 341; Morris 
 (/.Thompson, 85 111. 16; Chism v. Woods, Hardin, 531; Scott ». Scott, 2 
 A. K. Marsh, 215; Richardson v. Tipton, 2 Bush, 202; Eldridge v. Wad- 
 leigh, 3 Fairf. 372; Huntingdon?). Hall, 36 Me. 601; Mockbee v. Gardner, 
 2 Harr. iSb G. 176; Matheuy v. Mason, 73 Mo. 677; Donaldson v. Newman, 
 9 Mo. App. 235; Bucknara ». Goddard, 21 Pick. 71; Dorr v. Fisher, 1 
 Cnsh. 273; Brown ». Pierce, 97 Mass. 46; Hunt v. Sackett, 31 Mich. 18; 
 Long V. Hicklngbottom, 28 Miss. 772; Sargent ». Currier, 49 N. H. 310; 
 Wood v. Sheldon, 42 N. J. L. 421; Heermance v. Vernoy, 6 Johns. 6; 
 Swett V. Colgate, 20 Johns. 196; Rew v. Barber, 3 Cow. 272; Burt «. 
 Dewey, 40 N. Y. 283; McCoy v. Archer, 3 Barb. 823; Darst v. Brockway, 
 11 Ohio. 462; Swazey c. Parker, 50 Pa. St. 441; Whitaker v. Eastwick, 
 75 Pa. St. 229; People's Bank v. Kuatz, 99 Pa. St. 344; Colcocke v. 
 Goode, 3 McCord, 513; Trigg v. Faris, 5 Humph. 343; Bank ». Bank, 10 
 Vt. 145; Patee v. Pelton, 48 Vt. 182; Byinside v. Burdett, 15 W. Va. 
 702; Lane v. Romer, 2 Chand. 61; Croninger v. Paige, 48 Wis. 220; Ed- 
 gerton v. Michels QWis.), 34 Am. Law Rep. 260, note; Costigan v. 
 Hawkins, 23 Wis. 74; Gilchrist ». Hilliard, 53 Vt. 592; Thrall «. Newell, 
 19 Vt. 202; Gookln d. Graham, 5 Humph. 480; Word v. Caven, 1 Head, 
 507; Hrumbhaer v. Birch, 83 Pa. St. 426; Flynn v. Allen, 67 Pa. St. 482; 
 McCabe v. Morehead, 1 Watts & S. 613; Griffen u. Baird, 62 N. Y. 329; 
 McKnight v. Devlin, 52 N. Y. 401; Hoe ». Sanborn, 21 N. Y. 556; Case 
 
 2(>t) 
 
CH. XIV. J WARRANTY. § 185 
 
 by this rule to be in the seller, in order to raise the implica- 
 tion of a warranty of title, need not be actual. It is suffi- 
 cient, if the goods be in the potential possession of the 
 seller, i.e., that they are in the possession of some one as 
 agent or bailee, and consequently can be brought into the 
 actual possession of the seller whenever this is necessary or 
 desirable.^ But if the goods are in the possession of an- 
 other who claims them as his own absolute property, there 
 is neither actual nor constructive possession in the seller, 
 and hence no implied warranty of title in his sale of them, 
 for it is presumed that the seller is only offering his interest 
 in the goods. ^ It i-i said, however, that possession in the 
 seller and an implied warranty of title are always presumed.^ 
 Mr. Bennett in his note to an edition of Benjamin on 
 Sales,* maintains that very many of the cases, which are 
 cited in support of the proposition that the warranty of 
 title can be implied only from the seller's possession of 
 the goods, do not lay down that rule, and that the judg- 
 ments of the courts were rendered in these cases inde- 
 
 ». Hall, 24 Wend. 102; Vlbbard «. Johnson, 19 Johns. 78; Inge v. Bond, 
 3 Hawks, 101; Wansler «. Messier, 29 N. J. L. 256; Storm v. Smith, 43 
 Miss. 497; Davis v. Nye, 7 Minn. 414; Shattuck ?;. Green, 104 Mass. 42 
 Whitney ». Haywood, 6 Cush. 86; Bennett v. Bartlett, 6 Cush. 225 
 Coolitlge ». Brigham, 1 Met. 551; Emerson v. Brigham, 10 Mass. 202 
 Dryden v. Kellogg, 2 Mo. App. 87; Rice v. Forsyth, 41 Md. 389; Thurs- 
 ton V. Spratt, 52 Me. 202 ; Butler v. Tufts, 13 Me. 202 ; Hale v. Smith, 6 
 Greenl. 420; Chancellor v. Wiggins, 4 B. Mon. 201; Payne ». Eodden, 4 
 Bibb, 304; Morris «. Thompson, 85 HI. 16; Starr ». Anderson, 19 Conn. 
 341; Lindsay v. Lamb, 24 Ark. 224; Williamson v. Sammons, 34 Ala. 
 691. 
 
 1 Whitney B. Heywood, 6 Cush. 82; Shattuck v. Green, 104 Mass. 45; 
 Huntingdon o. Hall, 36 Me. 501. 
 
 2 See Jones v. Huggeford, 3 Met. 519; Bogert v. Christie, 24 N. J. L. 
 57; Whitney D. Heywood, 6 Cush. 82; Shattuck o. Green, 104 Mass. 42; 
 Krumbhaar v. Birch, 83 Pa. St. 426; Bank of Northampton ». Mass. Loan 
 Co., 123 Mass. 330. 
 
 3 Long». Hlckingbottom, 28 Miss. 772; Scott ji. Hix, 2 Sneed, 192, 
 note. 
 
 < Edition of 1888, pp. 616-619. 
 
 267 
 
§ 185 WARRANTY. [CH. XIV, 
 
 penJently of any consideration of this principle. ^ On the 
 other hand, it is claimed in Story's Sales ^ that " this dis- 
 tinction (as to the implication of a warranty of title from 
 the seller's possession) has now become so deeply rooted 
 in the decisions of courts, in the dicta of judges, and in 
 the conclusions of learned authors and commentators, that 
 even if it were shown to be misconceived in its origin, it 
 could not at this day be easily eradicated."^ It is very 
 likely true, that the distinction could not be easily eradi- 
 cated ; but there cannot be much doubt as to the unsound- 
 ness of the rule, that a warranty of title can only be 
 implied from p'ossession of the goods by the seller. A 
 warranty of title may be, on principle, implied from any 
 unequivocal act of absolute ownership of the goods. The 
 having possession is an act of ownership ; but it does not 
 necessarily involve an assertion of absolute ownership ; for 
 one may have possession of goods as bailee or agent. But 
 when one undertakes to sell goods, he does assert his 
 dominion over the property, and exercise the power of an 
 absolute owner, for no one else but the absolute owner of 
 goods can give a good title, except in the few cases in 
 which the sheriff, trustee, and other representative persons, 
 are authorized to sell the goods of another. These cases 
 being the exception to the general rule, the reasonable pre- 
 sumption is that when one undertakes to sell goods, without 
 indicating the character in which he is offering to sell, he is 
 selling his own goods, and not the goods of another. 
 
 Nor is the sale of goods any less an assertion of domin- 
 ion over the goods, when the seller has not the posses- 
 
 1 See Andres v, Lee, 1 Dev. & Bat. Eq. 318; McCoy «. Artcher, 3 Barb. 
 323 ; Dresser v. Ainsworth, 9 Barb. 620 ; Bdick v. Crim, 10 Barb. 445 ; 
 Scott V. Hix, 2 Sneed, 192; Long v. Hickingbottom, 28 Miss. 773; Hop- 
 kins V. Grinnell, 28 Barb. 537; Scariton v. Clark, 39 N. Y. 220; Storm 
 V. Smith, 43 Miss. 497; Sheppard v. Earles, 13 Hun, 651; Byrnside u. 
 Burdett, 15W. Va. 702. 
 
 2 § 367, p. 436, 4th ed. 
 
 ' See also 2 Kent's Com., p. 478. 
 268 
 
CH. XIV. j WAREANXr. § 186 
 
 sion of them, even when the possession is in one who 
 asserts an adverse title to the seller, unless the vendee 
 knows of the adverse claim. If these propositions are 
 sound, then the modern English rule is the correct one, 
 viz.: "A sale of personal chattels implies an affirmation 
 by the vendor that the chattel is his, and therefore he war- 
 rants the title, unless it be shown by the facts and circum- 
 stances of the sale that the vendor did not intend to assert 
 ownership, but only to transfer such interest as he might 
 liave in the chattel sold." ^ 
 
 The warranty of title will be implied whatever may be 
 the character of the personal property which is offered for 
 sale. The doctrine of an implied warranty of title extends 
 not only to all kinds of goods, but also to all kinds of in- 
 corporeal per-onalty, such as choses in action, both nego- 
 tiable and non-negotiable notes, bonds ahd open accounts,^ 
 corporate stock, ^ and patent rights.* 
 
 § 186. How and when the warranty Of title is broken. — 
 
 The warranty of title amounts to an assurance that the 
 seller has a free and perfect title. Hence thp warranty is 
 broken by the enforcement, if not the mere" existence, of 
 prior incumbrances, mortgages, pledges or liens. ^ 
 
 1 BenjatDin on Sales, § 639, p. 582. Bichholz v. Bannister, 17 C. B. 
 N. S. 70S; Hall v. Couder, 2 C. B. N. S. 22; L'Apostre v. Le Plaistier, 
 cited in Eyall v. Bowles, 1 Ves. Tr. 351 ; Eyall v. Kolle, 1 Atk. 165. The 
 English rule has been indorsed in Canada. Brown v. Cockburn, 37 Up. 
 Can. Q. B. 692. But see Soraers v. O'Donohue, 9 Up. Can. C. P. 208; 
 Johnston v. Barker, 20 Up. Can. C. P. 228. 
 
 2 Flynnu. Allen, 67 Pa. St. 482; Boyd v. Anderson, 1 Over. 438; Swan- 
 zey «. Parker, 50 Pa. St. 460; Chambers v. Union Nat. Bank, 78 Pa. St. 
 205; Porter v. Bright, 82 Pa. St. 441; Woods). Sheldon, 13 Vroom, 421 ; 
 Baker v. Arnot, 67 N. Y. 448; Gilchrist v. Hilliard, 53 Vt. 592; Donald- 
 sons. Newman, 9 Mo. App. 235. For a fuU discussion of the application 
 of this principle to commercial paper, see Tiedeman Commercial Paper, 
 §§ 244, 245, 259, 260. 
 
 3 People's Banks. Kurtz, 99 Pa. St. 344. 
 * Darst J). Brookaway, 11 Ohio, 462. 
 
 ' Dresser v. Ainsworth, 9 Barb. 619; Brown v. Cockburn, 37 Up. Can. 
 
 269 
 
§ 186 WAKRANTY. [CH. XIV. 
 
 It is, however, a much mooted question at what time the 
 warranty may be considered broken, so that an action for 
 the breach of the warranty may be brought. Some of the 
 authorities hold that the warranty of title is broisen by 
 the existence of an outstanding superior title, and that the 
 action for the breach of the warranty lies immediately 
 and before there has been any eviction of the vendee.^ 
 But, other authorities maintain that the warranty is not 
 broken until the outstanding superior title has been as- 
 serted, and something equivalent to an eviction of the 
 vendee has occurred.^ 
 
 Where the defect of title does in fact exist, the purchaser 
 may buy up the outstanding claim or title and then recover 
 of the vendor the amount he paid; and he need not wait 
 until the holder of the claim against the property has as- 
 serted and enforced it.^ 
 
 Q. B. 592; Baker v. McAllister, 3 Pac. Rep. 581; Williamson ». Samraous, 
 34 Ala. 691 ; Linton v. Porter, 31 111. 107; Boyd v. Whitfield, 19 Ark. 447; 
 Heermance v. Vernoy, 6 Johns. 5; McCoy v. Artcher, 3 Barb. 323; Vib- 
 bard «. Johnson, 19 .Johns. 78; Willing v. Peters, 12 Serg. & E. 181; 
 Tipton V. TripleMr, 1 Met. (Ky.) 570; Bayse v. Briscoe, 13 B. Mon. 474; 
 Dean «. Mason, i^Conn. 428; Coolidge v. Brigham, 1 Met. 551; T)oe ?>. 
 Stanlon, 1 M. & W5^701; Chism v. Woods, Hardin, 541; Fawcett v. 
 Osborn, 32 111. 411; Word v. Gavin, 1 Head, 506; Brown v. Pierce, 97 
 Mass. 46. 
 
 1 Perkinson v. Whelan, 116 Mass. 542; Payne v. Rodden, 4 Bibb, 304; 
 Chancellor v. Wiggins, 4 B. Mon. 201; Dryden v. Kellogg, 2 Mo. App. 87; 
 Matheny v. Mason, 73 Mo. 677; McCiffen v. Baird, 62 N. Y. 329; Word v. 
 Cavon, 1 Head, 506; Gross v. Hennessey, 13 Allen, 389. 
 
 2 Sweetman v. Prince, 62 Baib. 256; Vibbard v. Johnson, 19 Johns. 
 77; Wauser v. Messier, 29 N. J. L. 256; Randon v. Toby, 11 How. 493; 
 Burt V. Dewey, 40 N. Y. 283; Linton v. Porter, 31 111. 107; Gross v. 
 Kierski, 41 Cal. Ill; Krumbhaar «. Birch, 83 Pa. St. 426; Case v. Hall, 
 24 Wend. 102. In Kentucky it is held that an eviction is necessary 
 where the warranty of title was express, but not where it is implied. 
 Tipton ». Triplett, 1 Met. 570; Scott v. Scott, 2 A. K. Marsh. 215; Payne 
 V. Kodden, 4 Bibb. 304; Chancellor v. Wiggins, 4 B. Mon. 202. 
 
 ' Sargent v. Currier, 49 N. H. 310; Harper v. Dotson, 43 Iowa, 232; 
 Lane v. Romer, 2 Chand. 61; Burt v. Dewey, 40 N. Y. 283; Cahill v. 
 Smith, 4 N. E. Rep. 739; Bordwell v. Colie, 45 N. Y. 494; McGlffen v. 
 270 
 
CH. XIV.] WARRANTY. § 187 
 
 § 187. Implied warranty of quality — When there is 
 and is not an opportunity for inspection of goods. — The 
 
 seneral rules of the Enailish aod American Imw look to the 
 fostering of self-reliance in the individual, and nowhere 
 does the common law furnish aid to the individual for the 
 vindication or protection of his interests, if the individual 
 can by the exercise of reasonable prudence protect himself. 
 No one can protect himself efficiently against the fraud of 
 the parties dealing with him ; and hence ample remedies are 
 provided for the overthrow of frauds. But in the ordinary 
 relation of vendor and vendee, where neither party indulges 
 in fraudulent misrepresentations, the parties nre in a posi- 
 tion to protect their own interests. They generally deal 
 with each other at arm's length, and each relies upon his 
 own judgment in determining whether to conclude or reject 
 a sale. Hence the cardinal rule of the law of sales is em- 
 bodied in the maxim caveat emptor; and it provides that 
 there is ordinarily no warranty for the quality unless one 
 is expressly demanded or given. 
 
 This is the rule in England ^ and in all of the States,^ 
 
 Baird, 62 N. Y. 329; Dryden v. Kellogg, 2 Mo. App. 92; Matheny o. 
 Mason, 73 Mo. 677; Plummer v. Newdigate, 2 Duval, 1. 
 
 1 Hall v. Coiider, 2 C. B. (n. s.) 40; Parkinsou v. Lee, 2 East, 320; 
 Harvey ». Young, Yel. 21; Jones v. Just, L. R. 3 Q. B. 197; Hopkins a. 
 Tanqiieray, 15 C. B. 130. 
 
 2 Cozzins B. Whitaker, 3 Stew. & P. 322; Turners. Huggins, 14 Ark. 
 22; Byrne v. Jansen, 50 Cal. 624; Dean v. Mason, 4 Conn. 428; Drew v. 
 Eoe, 41 Conn. 60; Morris v. Thompson, 85 Hi. 16; Bowman v. Clemmer, 
 50 Ind. 10; Eichardson v. Bouck, 42 Iowa, 185; Standiford's Adm'r u. 
 Schultz, 5 B. Mon. 581; Taymon v. Mitchell, 1 Md. Ch. 496; Hyatt v. 
 Boyle, 5 Gill & J. 110; Mixer v. Coburn, 11 Met. 659; Seixas v. Wood, 2 
 Gaines, 48 ; Sweet v. Colgate, 20 Jolins. 19fi ; Wright v. Hart, 18 Wend. 
 449; Beirne v. Dord, 5 N. Y. 8; Hargous v. Stone, 5 N. Y. 73; Day b. 
 Pool, 52 N. Y. 416; Jackson v. Wetherlll, 7 Serg. & R. 480; Eagan v. Call, 
 34 Pa. St. 236 ; Lord v. Grow, 39 Pa. St. 88 ; Warren v. Phi ladelphia Coal 
 Co., 83 Pa. St. 437; Stevens v. Smith, 21 Vt. 90; Bryant v. Pember, 45 
 Vt. 487; Ryan v. Ulmer, 108 Pa. St. 332; Whitaker b. Eastwick, 73 Pa. 
 St. 229; Weimer v. Clement, 37 Pa. St. 147; McFar'and v. Memmer, 9 
 Watts, 55; Hadley v. Clinton, &c., Co., 13 Ohio St. 502; Hawkins ». 
 
 271 
 
§ 187 WAERANTY. [CH. XIV. 
 
 except in Louisiana in which the civil law obtains/ and in 
 South Carolina,^ where the maxim is adopted that a sound 
 price warrants a sound article. But the maxim must not 
 be construed to mean that the vendor warrants the article 
 to be equal in value to the price, but simply that the thing is 
 sound, and free from blemishes.* There will, of course, be 
 no implied warranty where the parties agree that the buyer 
 shall take the property at his own risk,* or where the buyer 
 is informed or knows of the defects before he concludes 
 the sale.^ It is also the rule in this State, as elsewhere,* 
 that an implied warranty will be limited by an express 
 special warranty, as where the seller expressly war- 
 
 Pemberton, 51 N. Y. 198; Moses v. Mead, 1 Denio, 378; Welsh v. Carter, 
 1 Wend. 185; Holden v. Dakin, 4 Johns. 421; Otto v. Alderson, 10 Smed. 
 & M. 476; Winson v. Lombard, 18 Pick. 69; Johnston v. Cope, 3 H. & 
 John. 89; Kingsbury v. Taylor, 29 Me. 508; Seott v. Senwick, 1 B. Mon. 
 64; Dean v. Morey, 33 Iowa, 120; Humphreys v. Comline, 8 Blatchf. 616; 
 Roberts v. Hughes, 81 111. 130; Frazier v. Harvey, 34 Conn. 469; Johnson 
 V. Powers, 65 Cal. 181; Moore v. McKinlay, 6 Cal. 471 ; West v. Cunning- 
 ham, 9 Port. 104; Lukens v. Freiund, 27 Kan. 664; Getty v. Rountree, 2 
 Pinn. 379; 2 Chandl. 28; Maxwell v. Lee (Minn.), 27 N. W. Rep. 196; 
 Pac. Iron Works v. Newhall, 34 Conn. 67; Woloott v. Mount, 36 N. J. L. 
 262 ; 38 N. J. L. 496 ; Deming v. Foster, 42 N. H. 165; Warren Glass 
 Works Co. V. Keystone Coal Co., 65 Md. 547; Barnard v. Kellogg, 10 
 Wall. 383; Reynolds v. Palmer, 21 Fed. Rep. 440. 
 
 ^ Dewees v. Morgan, 1 Mart. (La.) 1 Melancon v. Robichaux, 17 La. 
 97. But see Rochi v. Schwabacher, 33 La. An. 1334. 
 
 2 Tirarod v. Shoolbred, 1 Bay, 324; State v. Gaillard, 2 Bay, 19; Bar- 
 nard V. Yates, 1 Nott & McC. 142 ; Missroon v. Waldo, 2 Nott & McC. 76 ; 
 Thomas v. Sexton, 16 S. C. 93. The rule also applies to auction sales. 
 Duncan o. Bell, 2 Nott & McC. 382; Rose v. Beatie, 2 Nott & McC. 538. 
 But not to sales by sheriff nor to judicial sales in general. Thayer v. 
 Sheriff, 2 Bay, 169; Yates «. Bond,,2 McCord, 382; Tunno v. Fludd, 1 
 McCord, 121; Robinsons. Cooper, 1 Hill, 287; Davis v. Murray, 2 Mill, 
 143; Harth v. Gibbes, 3 Rich. 316; Wlngo v. Brown, 14 Rich. 103. 
 
 8 Smith V. Rice, 1 Bailey, 648. 
 
 * Thompson v. Lindsay, 3 Brev. 305. 
 
 » Wood V. Ashe, 1 Strobh. 407; Whitefleldv. McLeod, 2 Bay, 380. See 
 Carnochan v. Gould, 1 Bailey, 179; Rose v. Beatie, 2 Nott & McC. 
 638. 
 
 ' See ante, § 182. 
 272 
 
CH. XIV.] WAREANTT. § 188 
 
 rants the soundness " according to the best of his knowl- 
 edge." i 
 
 But the maxim caveat emptor can be applied with justice 
 only where it is reasonably possible for the buyer to dis- 
 cover the defects in the goods for himself. Wherever the 
 buyer has the opportunity of inspecting the goods, and the 
 defects could be discovered by him, if discoverable at all, 
 the maxim applies, and he is required to exercise his own 
 judgment. There will be no implied warranty of quality 
 in such cases. ^ And no warranty of quality will be implied 
 in such a case, even where the defects are latent, and cannot 
 be discovered by the buyer after the closest examination, 
 und the buyer is without remedy, unless the seller is guilty 
 of fraud or the buyer has protected himself by an expresg 
 warranty.* But if the buyer has not an equal opportunity 
 with the seller of in-pocting the goods, then the reason of 
 the miixim would fail, and it would be but just to the buyer, 
 that an implied warranty of quality should be recognized in 
 his favor; and this is done at least in some cases of this 
 sort.* In the succeeding sections, the exceptions to the 
 maxim caveat emptor will be explained. 
 
 § 188. Sales by sample. — Where a sale is made of 
 goods, by means of the exposure and examination of a sam- 
 
 1 McLaughlin v. Horton, 1 Hill, 383. 
 
 2 Jones V. Just, L. R. 3 Q. B. 197; Downing v. Dearborn, 77 Me. 457 ; 
 Turners;. Muchlow, 8 Jur. (n. s.) 870; Frazier v. Harvey, 34 Conn. 469; 
 iSlaughter v. Gerson, 13 Wall. 379; Lord v. Grow, 39 Pa. St.' 388; Hun- 
 ger V. Evans, 38 Ark. 334 ; Byrne v. Jansen, 50 Gal. 624 ; Carson v. Baillie, 
 19 Pa. St. 375; Barr v. Gibson, 3 M. & W. 390. 
 
 ^ 3 Parljinson v. Lee, 2 East, 314; Frazier». Harvey, 34 Conn. 469; Had- 
 ley V. Clinton, &c., Co., 13 Oliio St. 502; Kingsbury u. Taylor, 29 Me. 
 508; Lukens i;. Freiund, 27 Ifan. 664. But see French v. Vining, 102 
 Mass. 132; Bragg v. Morrill, 49 Vt. 45; Rodgers v. Ni'es, 11 Ohio St. 
 48; Lord v. Grow, 39 Pa. St. 88; Walker v. Pue, 57 Md. 155; Dickinson 
 V. Gay, 7 Allen, 29; Hoe v. Sanborn, 21 N. Y. 552. 
 
 * See Gardiner v. Gray, 4 Camp. 144; Beals v. Olinstead, 24 Vt. 114; 
 Pease v. Sabin, 38 Vt. 432; Lord v. Grow, 39 Pa. St. 88. 
 
 18 273 
 
§ 188 WARKANTY. [CH. XIV. 
 
 pie, instead of the bulk of the goods, there is a necessary 
 implication that the seller warrants that the bulk will be 
 equal to the sample in quality Without such an implica- 
 tion, the use of the sample would be without meaning.* 
 But the implied warranty in this case only amounts to an 
 assurance that the bulk corresponds to sample in kind and 
 quality.^ There is no implied warranty against latent defects 
 in the goods, which are present iu both sample and bulk.* > 
 
 1 Moore ». McKinlay, 5 Cal. 471; Merriman v. Chapman, 32 Conn. 146; 
 Hanson v. Busse, 45 111. 499 ; Webster v. Granger, 78 111. 230 ; Home 
 Lightning-rod Co. v. NefE, 60 Iowa, 138; Gill v. KaufCman, 16 Kan. 571 ; 
 Gunther v. Atwell, 19 Md. 157; Hastings v. Levering, 2 Pick. 219; Hen- 
 shaw«. Bobbins, 9 Met. 86; Dickinson v. Gay, 7 Allen, 29; Schnitzer «. 
 Oriental Print "Works, 114 Mass. 123; Graff ». Foster, 67 Mo: 512; Hoi- 
 lender V. Koelter, 20 Mo. App. 79; Boothby v. Plaisted, 51 N. H. 436; 
 Oneida Mfg. Co. v. Lawrence, 4 Cow. 440; Gallagher v. Waring, 9 Wend 
 20; Beebe ». Robert, 12 Wend. 412; Osborn b. Gantz, 60 N. Y. 540; Mosi s 
 V. Mead, 1 Denio, 378; Beirne v. Dord, 5 N. Y. 95; Harjons v. Stone, 5 
 N. Y. 73; Reynolds v Palmer, 21 Fed. Kep. 433, note; Rose v. Beatie, 2 
 Nott & McC. 638; Whitaker v. Hue=.ke;, 29 Tex. 355; Barnard v. Ke'- 
 logg, 10 Wall. 383; Getty v. Rountree, 2 Chand. 28; Merriam v. Field, 24 
 Wis. 640; Proctor v. Spratley, 78 Va. 254; Sehuchardt v. Aliens, 1 Wall. 
 359; Brantley v. Thomas, 22 Tex, 270; Dayton v. Hooglund, 39 Ohio St. 
 671; Leonard v. Fowler, 44 N Y. 289; Brower v. Lewis, 19 Barb. 574; 
 Boorman v. Jenkins, 12 Wend. 566; Dike v. Eeitlinger, 23 Hun, 241; 
 Howard v. Hoey, 23 Wend. 350; Waring v. Mason, 18 Wend. 425; An- 
 drews V. Kneeland, 6 Cow. 354; Sands « Taylor, 5 Johns. 395; Merrill 
 V. Wallace, 9 N. H. 116; Voss v. McGuire, 18 Mo. App. 477; Day v. Ra;:- 
 net, 14 Minn. 273; Lothrop v. Otis, 7 Allen, 435; Whitmore u. South 
 Boston Iron Co., 2 Allen, 52; Williams v. Spafford, 8 Pick. 250; Bra<l - 
 ford V. Manly, 13 Mass. 139; Hall v. Plassen, 19 La. Ann. 11; Myer v. 
 Wheeler, 65 Iowa, 390; Converses. Harzfeldt, 11 Bradw. 153; Hubbard 
 V. George, 49 111. 275; Wilcox v. Howard, 51 Ga. 298; Hughes v. Bray, 
 60 Cal. 284; Parker v. Palmer, 4 B. & Aid. 387; Parkinson v. Lee, 2 East. 
 314; Mining Co. ■». Jones, 108 Pa. St. 55. 
 
 2 Gunther v. Atwell, 19 Md. 157; Pope v. Allis, 115 U. S: 363; Rnssel 
 V. Nicolopulo, 8 C. B. (n. s.) 362; Parker v. Palmer, 4 B. & Aid. 357; 
 Williams v. SpafEord, 8 Pick. 250; Hanson v. Busse, 45 111. 496; Rey- 
 nolds V. Palmer, 21 Fed. Rep. 454, note; Day «. Raquet, 14 Minn. 273; 
 Parkinson v. Lee, 2 East, 314; Beirne v. Dord, 5 N. Y. 95; Buck v. Levy, 
 101 N. Y. 614. 
 
 ' Reference is only had here to sellers of goods, manufactured by 
 others. Sands v. Taylor, 5 Johns. 404; Bradford v. Manly, 13 Mass. 
 274 
 
CH. XIV. J WARRANTO. § 188 
 
 Where the seller takes samples from different parts or 
 packages of the same bulk, and then mixes up these 
 samples, so that he may get an " average sample," i. e., 
 one that would correspond to the average quality of the 
 bulk, and the purchase is made by the buyer knowingly 
 "by average sample," there is no breach of the implied 
 warranty of correspondence of sample with bulk, if some 
 of the packages are inferior to the sample. The warranty 
 is peifornied, if the sample corresponds in quality to the 
 average quality of the bulk of the goods. ^ , /, / ■ 
 
 In Pennsylvania, the implied warranty of titlo in the 
 case of sales by sample, is confined to an assurance that 
 the bulk will be of the same species and kind as the sample, 
 and that the bulk is of a merchantable quality ; but not 
 that the bulk is equal in quality to the sample.'' 
 
 But in order that the implied warranty of correspond- 
 ence of the bulk with the sample may he claimed, it must 
 l)e a veritable sale by sample. It is not sufficient that the 
 sample is exhibited. It must be exhibited with the in- 
 tention and understanding of the parties that the seller 
 assures the buyer that the sample is a reliable representa- 
 tive of what the bulk of the goods is ; and that the buyer 
 may determine the quality of the goods by an examina- 
 tion of the quality. If the facts of the case do not sup- 
 
 139; Dickinson v. Gay, 7 Allen, 29. But see Drummond v. Van Ingen, 
 24 Rep. 731 ; 57 Law T. (n. s.) 1, where it is held that, along with the im- 
 plied warranty of correspondence to sample, there may also be an im- 
 plied warranty that the goods were suitable for the purpose for which 
 they were knowingly fold. 
 
 1 Leonard v. Fowler, 44 N. Y. 289. See also Schnitzer v. Oriental 
 Print Works, 114 Mass. 123. 
 
 2 Boyd V. Wilson, 83 Pa. St. 319 ; Barrekins v. Bevin, 3 Eawle, 23 ; 
 Jennings v. Gratz, 3 Rawle, 1G8; McFarland v. Newman, 9 Watts. 55; 
 Carson w. Baillie, 19 Pa. St. 375; Eagan v. Call, 34 Pa. St. 236; Whitaker 
 V. Eastwick, 75 Pa. St. 229 ; Weimer v. Clement, 1 Wright, 147 ; Wether- 
 111 V. Neilson, 20 Pa. St. 448; Eraley ij. Bispham, 10 Pa, St. 320; Kirk u. 
 Nice, 2 Watts, 367. 
 
 275 
 
§ 188 WAREANTT. [CH. XIV. 
 
 port the presumption that the seller intended to warrant 
 the correspondence of the bulk with the sample, the mere 
 production of the sample will not raise the implication of 
 the warranty.* The intention of the parties to make a 
 sale by sample, can only be determined by inference from 
 the facts of each case, since any expression of the inten- 
 tion to assure the buyer, that the goods corresponded in 
 quality with the sample, would make it an express war- 
 ranty, which always takes the place of and excludes the 
 implied warranty, covering the same ground.^ Parol evi- 
 dence is ordinarily admissible to prove the sale by sample,'' 
 but if the contract is in writing, and nothing in the writ- 
 ing reveals the fact that a sample was used in the making 
 of the sale, parol evidence cannot be used to establish the 
 fact that it was a sale by sample.* 
 
 The opportunity to inspect the goods is an important 
 element in determining whether the parties intended to 
 make the sale by sample or not. Ordinarily, if the buyer 
 had no opportunity to inspect the goods, and a sample is 
 exhibited at the sale, and offered to him for examina- 
 tion, the courts would presume that it was a sale by 
 sample, and would recognize the implication of a warranty 
 of correspondence of the sample with the goods. ^ But 
 this presumption is disputable, and may be rebutted 
 by other facts, as, for example, when the seller refuses 
 to sell by the sample, and suspends the final conclu- 
 
 ' Hargous v. Stone, 5 N. Y. 73; Beirne v. Dord, 5 N. Y. 96; Gardiner 
 V. Gray, i Camp. 144; Couslnery v. Pearsall, 8 J. & S. 113; Day v. 
 Baguet, 14 Miun. 282; Ames v. Jones, 77 N. Y. 614; Proctor v. Sprattey, 
 78 Va. 254; Borthwick v. Young, 12 Ont. App. 671; Selser w. Roberts, 
 106 Pa. St. 242; Atwater v. Clancy, 107 Mass. 369; Reynolds v. Palmer, 
 21 Fed. Bep. 455, note. 
 
 2 See McMullen V. Helberg. 4 L. R. Ir. 100; Powell v. Horton, 2 BIng. 
 N. C. 668; Tye v. Finmore, 3 Camp. 462. 
 
 3 Atwateru. Clancy, 107 Mass. 369. 
 * Wiener v. Whipple, 53 Wis. 298. 
 
 « Beirne v. Dord, 5 N. Y. 95. 
 276 
 
CH. XIV ] WARRANTY. § 189 
 
 sion, until the buyer has had an opportunity to inspect the 
 goods. ^ 
 
 So, on the other hand, there may be a sale by the sample, 
 and the seller may be presumed to assure the buyer that 
 the goods are equal to the sample, although there is an 
 opportunity to inspect the goods, provided from all the 
 facts of the case such an intention may be deduced.'' 
 
 It is a question of fact for the jury whether the inten- 
 tion of the parties was to make a sale by sample.^ 
 
 § 189. Identity of kind — Sales by description. — If 
 
 the buyer is not shown the goods either in bulk or in sam- 
 ple, but the sale is effected by a description of the goods, 
 there is an implied warranty that the goods when delivered 
 will correspond to the description of them, in reliance 
 upon which the sale was made. But a distinction must be 
 made between those definite descriptions, which amount to 
 a positive assurance that the goods will correspond with 
 them, and the indefinite expressions of the quality of the 
 goods, which consists simply of what is called "dealer's 
 talk" and impose no liability upon the seller. Where the 
 descriptions are definite and exact, they imply a warranty 
 that the goods will be of the same quality and kind as the 
 description represents them to be.* It is always a question 
 of law for the construction of the court, when the contract 
 is in writing ^ and a question of fact for the jury, when the 
 contract is parol, whether the expressions are sufficiently 
 definite to support the implication of a warranty that the 
 
 1 Salisbury v. Stainer, 19 Wend. 159; Barnard ». Kellogg, 10 Wall. 
 383. 
 
 2 2 Schoul. Personal Prop., § 359. See Williams v. SpafEord, 8 Pick. 
 259. 
 
 3 Atwood V. Clancy, 107 Mass. 369; Waring v. Mason, 18 Wend. 445; 
 Jones V. Wasson, 3Baxt. 211. 
 
 * Hastings v. Lovering, 2 Pick, 215; Hogins v. Plympton, 11 Pick. 97. 
 ' Behn v. Bumess, 3 Best & Smith, 751. 
 
 277 
 
§ 189 WARRANTY. [CH. XIV. 
 
 goods will correspond with tlie description.* And the 
 courts seem disinclined to construe doubtful descriptions 
 into warranties.^ 
 
 Ordinarily, the cases, in which the descriptions have been 
 held to amount to warranties, are those in which the goods 
 are known and sold by a trade name or mark, and such sales 
 raise the presumption of an assurance or warranty that the 
 goods sold are those which are known by that name.* In 
 the note below, are given illustrations of the description 
 by trade name, which is held to amount to a warranty.* 
 
 But the implied warranty arising out of a description or 
 trade name, only extends to an assurance that the goods 
 sold will be of the same kind as is sold under that descrip- 
 tion or trade-mark ; and will not include a warranty that 
 the goods will be of any particular quality. The implied 
 warranty will be satisfied if the goods delivered are sold 
 under the given trade-mark, or are known to fill the de- 
 scription.^ 
 
 » "Wolcott V. Mount, 36 N. J. L. 262; Loml v. Tucker, 4 C. & P. 15; 
 Power V. Barham, 4 Ad. & B. 473; DeSewhandberg v. Buchanan, 5 C. & 
 P. 343. 
 
 2 See Maxwell v. Lee, 27 K. W. Kep. 196; Bach v. Levy, 18 Jones & S. 
 519; (5 N. B. Rep. 345); Borcheimer v. Stewart, 65 Iowa, 504. 
 
 ^ Bagley v. Cleveland Rolling Mill, 21 Bed. Rep. 159; Baker ». Lyman, 
 38 Up. Can. Q. B. 498; Catchings v. Hacke, 15 Mo. App. 51; Blint v. 
 Lyon, 4 Cal. 17; Lewis c.'Rountree, 78 N. C. 323. 
 
 * Osgood V. Lewis, 2 Harr. & G. 495 (description — "winter-pressed 
 sperm oil " — the goods — summer -pressed sperm oil) ; Gardiner v. Lane, 
 9 Allen, 492; 12 Allen, 399; 98 Mass. 492 (description — " Mackerel No. 
 1 " — goods — Mackerel No. 3.) ; Bdgar v. Canadian Oil Co., 23 Up. Can. 
 Q. B. 333 (Rock oil) ; Mader v. Jones, 1 Russell & C. 82 (Gulf-herring Split 
 No. 1.) ; Hawkins v. Pemberton, 61 N. Y. 198 (blue vitriol, sound and in 
 good order) ; Wolcott v. Mount, 36 N. J. L. 2(;2 (description, " early 
 strap-leaf red-top turnip seed," goods "Russia Turnip-seed ") ; White v. 
 Miller, 71 N. Y. 118 (large Bristol cabbage seed) ; Dounce v. Dow, 64 N. 
 Y. 411 (XX pipe iron) ; Jones v. George, 61 Tex. 345 ("Paris Green; " 
 goods "Chrome green"); Lewis v. Rountree, 78 N. C. 323 (s-tained 
 rosin) ; Whittaker v. McCormick, 6 Mo. App. 114 (No. 2 white mixed 
 corn.) 
 
 * Lamb v. Crafts, 13 Met. 353; Winsor v. Lombard, 18 Pick. 57; 
 
 278 
 
CH. XIV. J WARRANTY. § 190 
 
 § 190. Implied warranty of merchantability — Manu- 
 facturer's liability — Fitness for a particular use. — But 
 
 while, as a general rule, the sale of goods by description 
 does not imply any other warranty than that the goods will 
 correspond to the description, and does not vd'ne by impli- 
 cation the warranty that the goods shall have any particular 
 qualities,^ yet if the goods are manufactured or prepared 
 for a special use, and the adaptation of the goods for that 
 use constitutes the essential element in the description of 
 the goods, the dealer, and especially the manufacturer, will 
 be presumed to have warranted the goods to be fit for that 
 particular use when it is understood that the goods are 
 bought for that purpose, and some of the cases go so far 
 as to hold that there is an implied warranty against all lat- 
 ent defects which would lender the goods unfit for the use 
 for which they were bought.^ And where the sale is made 
 
 Gossler v. Eagle Sugar Refinery, 103 Mass. 331 ; DoUard v. Potts, 6 
 Allen (N. B.), 443; Osgood v. Lewis, 2 Har. & G. 495; Snelgrove v. 
 Bruce, 16 Up. Can. C. P. 561 ; Carson v. Baillie, 19 Pa. St. 375; Shister v. 
 Baxter, 109 Pa. St. 443; Wetherell v. Nelson, 20 Pa. St. 448; Jennings v. 
 Gratz, 3 Rawle, 168; Coate v. Terry, 26 Up. Can. C. P. 40; Hyatt ». Boyle, 
 5 Gill & J. 110; Whitman v. Freese, 23 Me. 212. 
 
 1 See Wolcotti). Mount, 32 N. J. L. 262; Olivant v. Bayley, 5 Q. B. 
 288; Mixer v. Coburn, H Met. 559; Jones ». Just, L. E. 3 Q. B. 197; 
 Gossler t). Eagle Sugar Refinery, 103 Mass. 331; Windsor v. Lombard, 
 18 Pick. 56; Chanter v. Hopkin.s, 4 M. & W. 414. 
 
 2 Rogers a. Niles, li Ohio St. 48; Cunningham v. Hall, 1 Sprague, 
 404; White v. Miller, 71 N. Y. 118; Gammell v. Gunby, 52 6a. 604; Wil- 
 cox V. Hall. 53 Ga. 636; Wilcox «. Owens, 64 Ga. 601; Best v. Flint, 58 
 Vt. 643; Poland v. Miller, 95 Ind. 387; Wilson v. Danville, 4 L. R. Ir. 
 249; 6 L. R. Ir. 210; Seals i;. Olmstead, 24 Vt. 114; Cunningham v. Hall, 
 4 Allen, 273; Bigelowu. Baxall, 38 Up. Can. Q. B. 462; Boothby v. Scales, 
 
 27 Wis. 626; Overton v. Phelan, 2 Head, 445; Howard «. Hoey, 23 Wend. 
 330; Pacific Guano Co. u. Mullen, 66 Ala. 582; Getty v. Rountree, 2 
 Chand. 28; Robinson Mach. Works «. Chindler, 56 Ind. 675; Craver v. 
 Hornburg, 26 Kans. 94; Merrill v. Nightingale, 39 Kans. 247; Port Car- 
 bon Iron Co. V. Groves, 68 Pa. St. 149; Curtis Mfg. Co. v. Williams, 3 S. 
 W. Rep. (Ark.) 617; Pacific Iron Works v. Newhall, 34 Conn. 67; Fish 
 V. Tank, 12 Wis. 276; Brenton v. Davis, 8 Blatchf. 317; Byers v. Chapin, 
 
 28 Ohio St. 300; Downing v. Dearborn, 77 Me. 457; Harris v. Waite, 61 
 
 279 
 
§ 191 WARRANTY. [CH. XIV. 
 
 by the manufacturer he is also presumed to warrant that 
 the goods are generally merchantable, i.e., that they are 
 free from any noteworthy defect. ^ But in order tbat the 
 implied warranty of merchantability and fitness for a par- 
 ticular use may be claimed, the buyer must not himi^elf 
 select the goods. The goods must be selected by the dealer 
 or manufacturer, and he must know that the buyer wants 
 them for some particular use. The dealer or manufacturer 
 is not liable on any implied warranty, if the buyer relies upon 
 his own judgment in the selection of the goods, although 
 the seller may know that the buyer is buj'ing them for a 
 particular use, and that they are not fit for that use.* 
 
 § 191. Implied warranty in sales of provisions. — In- 
 dependently of statute, the English law does not recognize 
 any implied warranty that in a sale of provisions the goods 
 
 Vt. 480; Dawes v. Peebles, 6 Fed. Rep. 866; Thomas v. Simpson, 80 N. 
 C. 4; Pease v. Sabin, 38 Vt. 432; Bice v. Forsyth, 41 Md. 389; Whitmore 
 V. South Boston Ice Co., 2 Allen, 273; Spurr v. Albert Mining Co., 2 
 Hannay (N. B.), 361; Bounce v. Dow, 64 N. Y. 411; Gerst B.Jones, 32 
 Gratt. 518; Snow ». Schoraacker Mfg. Co., 69 Ala. Ill; Bragg ». Mor- 
 rill, 49 Vt. 46; Hoe v. Sanborn, 21 N. Y. 662; Brown v. Sayles, 27 Vt. 
 227. 
 
 1 Gallagher v. Waring", 9 Wend. 28; Merriam v. Field, 24 Wis. 640; 
 McClung 1). Kelley, 21 Iowa, 508; Mesner v. Granger, 4 Gilm. 69; Gay- 
 lord Mfg. Co. V. Allen, 53; N. Y. 815; Cullen v. Bimm, 37 Ohio St. 236; 
 Wilcox ». Halt, 53 Ga. 635; Gammell b. Gunby, 62 Ga. 504; Brantley v. 
 Thomas, 22 Tex. 270: Howard ». Hoey, 23 Wend, 360. And this implied 
 warranty of merchantability has been held to arise alongside of express 
 warranties as to other qualities. Wilcox v. Owens, 64 Ga. 601 ; Mer- 
 riam V. Field, 24 Wis. 640. But see contra, Owens v. Dunbar, 12 L. R. 
 Ir. 304; Rowe v. Farren, 8 C. L. R. Ir. 46. 
 
 2 Deeming v. Foster, 42 N. H. 166; County of Simcoe Ag. Soc. v. 
 Wade, 12 Up. Can. Q. B. 614; Walker ». Pue, 57 Md. 155; Farrows o. 
 Andrews, 69 Ala. 96; Kohl v. Lindley, 39 111. 196; Armstrong v. BufEord, 
 51 Ala. 410; Port Carbon Iron Co. ■». Groves, 68 Pa. St. 149; Shister v, 
 Baxter, 109 Pa. St. 443; Ti ton Safe Co. v. Tisdale, 48 Vt. 83; Cogel v. 
 Eniseley, 89 111. 698; Warren Glass Works v. Keystone Coal Co. 22 Rep. 
 (Md.) 651; Mason i>. Chappell, 15 Gratt. 672; Scott v. Renick, 1 B. Men. 
 63; Height v. Bacon, 126 Mass. 10. 
 
 2»0 
 
CH. XIV.] WARRANTV. § l91 
 
 are fit for use as food.* But in the United States a dis- 
 tinction is made in tliis respect between sales to the con- 
 sumer for immediate consumption, and sales of food by 
 dealer to dealer. In the former case, the warranty is im- 
 plied that the goods-are wholesome and sound and fit for 
 food, probably on the ground that the seller knows of the 
 buyer's intention to make use of the goods as food.^ But 
 the principle is not universally recognized, except so far as 
 to hold the dealer liable, when he makes the selection of 
 the goods, and the buyer does not have the opportunity of 
 inspecting them ; and the dealer is of course liable, if he 
 knows that the goods are unfit for food. And some of the 
 cases which are ordinarily cited in support of the proposi- 
 tion of the text, are in fact cases of fraud and dteceit.^ 
 
 But where the goods are sold by dealers to dealers, the 
 authorities unanimously declare that there is no implied 
 warranty arising out of the ultimate intention that the 
 goods shall be consumed as food ; the courts evidently 
 holding that the case is parallel with that of the vendor of 
 razors, who, on being remonstrated with by one of his un- 
 fortunate purchasers, claimed exemption from liability for 
 the worthlessness of the razor as a razor, on the ground 
 that the razors were made to sell, not to shave with. In the 
 case of the wholesale trade in provisions, the provisions 
 are considered solely as subjects of commerce, and not as 
 food.* 
 
 1 Burnby v. BoUett, 16 M. & W. ^ii. See Emmerton v. Matthews, 7 
 H. & N. 686; Bigge v. Parkinson, 7 H. & N. 955; Smith ». Baker, 40 L. 
 T.N. S. 261. 
 
 2 Hoover v. Peters, 13 Mich. 51 ; Morehouse v. Comstock, 42 Wis. 626; 
 Reynolds v. Palmer, 21 Fed. Rep. 453; Sinclair u. Hathaway, 57 Mich. 60. 
 
 3 Van Bracklin v. Fouda, 12 Johns. 468; Divine v. McCormick, 50 
 Barb. 116; Burch v. Spencer, 16 Hun, 304. 
 
 < Moses V. Mead, 1 Denio, 378; 5 Denio, 617; Ryder v. Neitge, 21 
 Minn. 70; Howard v. Emerson, 110 Mass. 321 ; Humphreys v. Comline, 8 
 Blachf. 516; Winson v. Lombard, 18 Pick. 61; Lukens v. Freiund, 27 
 Kan. 664. 
 
 281 
 
i 193 WAKHANTY. [CU- XIV. 
 
 § 192. Effect of usage on implied warranties of 
 quality. — A well established general usage may modify, 
 restrict and enlarge the implied warranties of quality. As, 
 for example, that tobacco shall remaia merchantable for 
 four months ; ^ or that the goods shall maintain an average 
 instead of an actual conformity to sample.* But it seems 
 to be the opinion of the courts that the usage cannot 
 raise or abrogate an implied warranty of quality in dero- 
 gation of the common-law principles. The common-law 
 principles must obtain in the matter of implied warran- 
 ties of quality, until they have been abrogated by statute. 
 Any proposed change by custom is invalid.' 
 
 § 193. Forms of express warranties — AflSrmations and 
 expressions of opinion — Express warranties distin- 
 guished from fraud. — The express warranty need not 
 assume any particular form of expression ; nor is any par- 
 ticular word necessary to indicate the intention to warrant, 
 not even the word "warrant," although it is very com- 
 monly used.* If the subject-matter of the statement is 
 suflScient to make it a warranty, the form of statement is 
 immaterial.' 
 
 1 Fatman v. Thompson, 2 Disney, 482. 
 
 2 Schnitzer v. Oriental Print Worlss, 114 Mass. 123. 
 
 3 Dickinson v. Gay, 7 Allen, 29 (wiien the usage was for dealers to war- 
 rant against latent defects) ; Dodd v. Farlow, 11 Allen, 426 (where there 
 was a usage to warrant the merchantability of goods which had been 
 inspected by the buyer ) See, also, to same effect, Wetherill «. Neilsou, 
 20 Pa. St. 448; Whitmprli v. South Boston Iron Co., 2 Allen, 52; Coxe v. 
 Heisley, 19 Pa. St. 243. 
 
 ■* Warren v. Philadelphia Coal Co., 83 Pa. St. 440; Henshaw v. Robins, 
 9 Met. 83; Callanan v. Brown, 31 Iowa, 333. See, also, Towell v. Gate- 
 wood, 2 Scam, 67; Gregory v. Underhill, 6 Lea, 207; Warder v. Bo wen, 
 31 Minn. 335; West Eepublio Mfg. Co. v. Jones, 108 Pa. St. 65; Neave v. 
 Arntz, 66 Wis. 174. 
 
 "But consult Beemau v. Buck, 3 Vt. 63; Foster v. Caldwell, 18 Vt. 
 176; McFarland o. Newman, 9 Watts, 56; Ender v. Scott, 11 111. 35; 
 House V. Fort, 4 B'ackf. 294. 
 2S2 
 
CH. XIV.] WAURAXTY. § 193 
 
 Some of the cases hold that in order that any statement 
 of the seller rjiay amount to an express warranty of quality, 
 it must be "shown that he made the statement with the in- 
 tention of warranting its truth. Unless this intention ap- 
 pears, it matters not how material and precise the statement 
 is, it will not amount to a warranty.^ But the better opinion 
 is that any positive statement of a material fact which is made 
 with the intention of influencing the buyer to buy, and the 
 truth of which is relied upon by the buyer, will constitute 
 a warranty, whether the seller intended to warrant the goods 
 or not. The intention to warrant is conclusively presumed 
 from his effort to influence the buyer's actions by a state- 
 ment of fact.^ 
 
 But in order that the statement may be construed to be a 
 warranty, it must be " a positive aflSrmation of a material 
 fact," and not an indefinite or inexact praise of the goods. 
 General commendation of the goods does not constitute a war- 
 ranty, for the reason that dealers are in the habit of praising 
 up their goods generally without any intention whatever of 
 assuring the buyer of the existence in the goods of any par- 
 ticular quality or qualities ; and this practice of indulging 
 in meaningless " dealer's talk" is so common and so well 
 
 1 McFarland v. Newman, 9 Watts, 65; Beeraan v. Buck, 3 Vt. 53; Fos- 
 ter i>. Caldwell, 18 Vt. 176; House ». Fort, 4 Blackf. 294; Ender v. Scott, 
 a 111. 35. 
 
 ' Keed v. Hastings, 61 111. 266; Kenner v. Harding, 85 111. 268; Haw- 
 kins V. Pemberton, 51 N. Y. 198; Crenshaw v. Slye, 52 Md. 146; Potomac, 
 &c., Co. V. Harlan, &c., Co., 4 Atl. Bep. (Md.) 903; Mason v. Chappell, 15 
 Gratt. 672; Henshaw v. Robins, 9 Met. 83; Gross ». Gardner, 3 Mod. 
 261; Osgood ». Lewis, 2 Har. & G. 518; Figge v. Hill, 61 Iowa, 430; Hast- 
 ings V. Levering, 2 Pick. 214; Halliday v. Briggs, 15 Neb. 219; Pasley d. 
 Freeman, 3 T. R. 57; Forcheimer v. Stewart, 65 Iowa, 593; Stroud v. 
 Pierce, 6 Allen, 413; Chisholm v. Proudfoot, 15 Up. Can. Q. B. 203; 
 DaniellSK. Aldrich, 42 Mich. 587; Baum v. Stevens, 2 Ired. 411; Bunnell 
 V. Whitlaw, 14 Up. Can. Q. B. 241; Ayres v. Parks, 3 Hawks, 59; Rich- 
 mond Trading Co. v. Farquar, 8 Blackf. 89; Horton v. Green, 66 N. C. 
 596; Tuttlec. Brown, i Gray, 457; Roberts?;. Morgan, 2 Cow. 438; Cook 
 V. Moseley, 13 Wend. 277; Erwin v. Maxwell, 3 Murphey, 241; Foggart 
 V. Blackweller, 4 Ired. 238. 
 
 283 
 
§ 193 •WAKRANTY. [CH. XIV. 
 
 understood, that none but the unwary is misled by it. 
 There is, therefore, no express warranty of quality, unless 
 the statement is of a material and specific fact.* The only 
 difference between a warranty and a fraudulent misrepre- 
 sentation is that the latter contains the element of deceit, 
 whereas that element is not at all essential to the former. 
 A misstatement of a material fact is a breach of warranty, 
 whether it was made innocently or knowingly. It does not 
 constitute a fraud, unless its falsity was known to the party 
 making it, or he made it carelessly without having reason- 
 able grounds for believing it to be true.^ 
 
 If the language used by the dealer admits of only one 
 construction, the court must declare the statement to be a 
 warranty or an irresponsible commendation of the goods, 
 as the case may be.* But, if the character of the language 
 is doubtful, it is a question for the jury, to be determined 
 by them under instructions from the court.* 
 
 The time of making the warranty is not essential, as 
 long as it has sufficient connect ion with the negotiations of 
 the sale, to have induced or helped to induce the purchase, 
 
 1 Tabor v. Peters, 74 Ala. 90; Hawkins v. Pemberton, 51 N. Y. 198; 
 Towell V. Gatewood, 2 Scam. 22; Halliday v. Briggs, 15 Neb. 219; For- 
 cheimer i;. Stewart, 65 Iowa, 59i; Reynolds v. Palmer, 21 Fed. Bep. 435; 
 Tewksburg v. Bennett, 31 Iowa, 83;. McGrew v. Forssrthe, 31 Iowa, 179; 
 Fauntleroy v. Wilcox, 80 111. 477; Hogins v. Plympton, 11 Pidk. 95; Ma- 
 son V. Chappell, 15 Gratt. 572; Byrne v. Janeen, 60 Cal. 624; Linn v. 
 Gunn, 23 N. W. Bep. (iMich.) 84 ; Bartlctt v. Hoppock, 34 N. Y. 118 ; Be' d 
 V. Hastings, 61 111. 263; Barrett v. Hall, 2 Aikens, 269; Carondelet Iron 
 Works V. Moore, 78 111. 65; Fraiey b. Bespham, 10 Pa. St. 320; Byan v. 
 Ulmer, 108 Pa. St. 332 ; Bice ». Codman, 1 Allen, 377. 
 
 2 See ante, §§ 160, 180. 
 
 » Daniel: 8 v. Aldrich, 42 Mich. 58; Stroud v. Pierce, 6 Allen, 413; 
 Halliday v. Briggs, 15 Neb. 219, 223. 
 
 * Whitney v. Sutton, 10 Wend. 412; Morrill v. Wallace, 9 N. H. HI; 
 Tnttle V. Brown, 4 Gray, 457; Baum v. Stevens, 2 Ired. 411; Foggartr. 
 Blackweller, 4 Ired. 238; Erwin v. Maxwell, 3 Murphey, 241; Cook v. 
 Mosely, 13 Wend. 277 ; Boberts v. Morgan, 2 Cow. 438 ; Horton v. Green, 
 66 N. C. 696 ; Ayres v. Parks, 3 Hawks, 59. 
 284 
 
CH. XIV.] WARRANTY. § 19^ 
 
 if it were made before the sale.^ But if it were made after 
 the sale, a new consideration would be required to support 
 and give validity to the warranty.^ 
 
 § 194. Interpretation of warranties — Unsoundness in 
 Animals — warranties as to future condition. — While it 
 is the province of the jury to determine in oral warranties 
 what were the words used upon which the claim of a war- 
 ranty could be made to rest,' yet the meaning and scope of 
 the warranty when its terms have been proved, must be 
 determined by the court, whether the warranty is written 
 or oral.* The terms of express warranties are as varied as 
 aie the manifestations of human ingenuity and human in- 
 terests, and the only general rule of interpretation, which 
 mny be given, is that the words used by the parties in the 
 making of the warranty must be taken in the sense in 
 which people ordinarily use them in the same connection. 
 Their ordinary meaning must be taken as the true meaning, 
 except where the word is proven to have a technical mean- 
 ing, when used in such a warranty, and in that case the 
 word is held to have been used in the technical sense.^ 
 
 The most common case of dispute over the scope and 
 meaning of warranties, is the warranty against unsoundness 
 in animals. At one time, it was supposed that a warranty 
 as to soundness was not broken by a temporary and curable 
 
 1 Wilmot B. Hurt, 11 Wend. 584; Diesbach v. Lewisburg Bridge Co., 
 81 Fa. St. 177; Gregory v. Underbill, 6 Lea, 207; Hoult v. Baldwin, 67 
 Cal. 610; Cbapman b. Gwyther, L. R. 1 Q. B. 463; Bristol v. Tracy, 21 
 Barb. 236; Craig v. Miller, 22 Up. Can. C. P. 348; Baldwin v. DanieU, 69 
 Ga. 791. 
 
 2 See ante, § 181. 
 
 3 See ante, § 193, and post, I 196. 
 
 •> See Short v. Woodward, 13 Gray, 86. 
 
 * See Budd j). Fairmaner, 8 Bing. 48; Waspn u. Rowe, 16 Vt. 525; 
 Richardson ». Brown, 1 Bing. 344; Chapman v. Gwyther, L. K. 1 Q. B. 
 464; Bywater b. Richardson, 1 Ad. & E. 508; Willardc. Stevens, 24 N. H. 
 271. See also Jones' Construction of Commercial & Trade Contracts, 
 pp. 271-276. 
 
 285 
 
§ 194 WARKANTY. [CH. XIV. 
 
 ailment, and even now this is held to be no breach of the 
 warranty if the temporary ailment does not interfere with 
 his present usefulness. * But it has been held that any ail- 
 ment, whether temporary or permanent, would be a breaoli 
 of the warranty of soundness, if there has been any altera- 
 tion of structure, or the prevalence of the disease in any way 
 interferes with the present or future usefulness of the ani- 
 mals.2 On the other hand, a temporary lameness has been 
 held to be no breach of the warranty,^ and so, likewise, a 
 simple cold, which could be controlled by ordinary remedies.* 
 And a maie with foal was held to fulfil the terms of a 
 warranty that she was " all right every way for livery pur- 
 poses."' But whatever variance there may be on this 
 question, it seems to be settled that the fact that the dis- 
 ease is curable does not take it outside of the warranty of 
 soundness. * Au incipient disease is as much a breach of 
 the warranty, as when it is fully developed. This has b^en 
 held to be the case with glanders, and rheumatism.' "Crib- 
 bing " is an unsoundness.* 
 
 1 Roberts v. Jenkins, 21 N. H. 119. 
 
 2 Kenner v. Harding, 25 111. 264; Coates ». Stevens, 2 Moody & E, 
 157; HoUiday 1J. Morgan, 1 El. & E. 1 ; Schurtz u. Kleinmeyer, 36 Iowa, 
 392; Kiddcll v. Burnard, 9 M. & W. 668; Roberts ». Jenkins, 21 N. H. 118; 
 Koruegay v. White, 10 Ala. 255. 
 
 ' Brown v. Bigelow, 10 Allen, 242. 
 
 ' Springstead v. Lawson, 23 How. Pr. 302. 
 
 5 Whitney v. Taylor, 54 Barb. 536. 
 
 6 Thompson v. Bertrand, 23 Ark. 731. It was held to be a doubtful 
 question, for the jury, whether "corns" in a horse's foot is unsound- 
 ness, in Alexander v. Button, 58 N. H. 282. See, a'so, on this general 
 subject, Kiddell v. Burnard, 9 M, & W. 608; Bolden u. Brogden, 2 Moody 
 & R. 113; Finley v. Quirk, 9 Minn. 194. 
 
 ' Woodbury v. Bobbins, 10 Cush. 520; Crouch v. Culbreath, 11 Rich. 
 9, overruling Stephens v. Chappell, 3 Strobh. 80. See, also, Fordreu v. 
 Durfee, 39 Miss. 323; Kenner v. Harding, 85 111. 265; Hook v. Stovall, 21 
 Ga. 69. 
 
 8 Washburn v. Cuddihy, 8 Gray, 430; Dean v. Morey, 33 Iowa, 120. 
 In Walker v. Hoisington, 43 Vt. 608, the warranty was that the horse 
 was " sound and right." 
 286 
 
CH. XIV. ] WARRANTY. § 195 
 
 The language of the warranty will of course vary ; and 
 in every case the words used should be construed according 
 to their natural import. In accordance with this general 
 rule, it seems to be accepted that such warranties that the 
 animal was " sound and right," " sound and kind," " sound 
 and perfect," " all right in every respect," and the like, 
 would Include a warranty of a kind and gentle dispositiou 
 as well as of soundness.* So also, the warranty was held 
 to be broken by partial blindness, although the warranty 
 was that the horse was " all right, except that he will some- 
 times shy." ^ 
 
 Ordinarily, warranties are presumed to assure only the 
 present state of the subject of the sale, and not to apply to 
 Its future condition.^ But if the intention that the wur- 
 ranty is to be a continuing one is made explicit in the lan- 
 guage used, there is no reason why the warranty should 
 not be construed as an assurance of future qualities and 
 condition.* 
 
 § 195. Elxpress warranties in relation to patent or ob- 
 vious defects. — It is sometimes stated without qualification 
 that an express warranty does not cover patent defects, un- 
 
 ^ See 2 Schouler Personal Prop., § HO; Walker v. Hoisington, 43 Vt. 
 608; Cookv. Mosely, 13 Weud. 277; Smith v. Justice, 13 Wis. 600 (fit- 
 ness for use in harness). In Bodurtha o. Phelon, 2 Allen, 242, the war 
 rauty was that the horse was " well broke." 
 
 ^ Kingsley v. Johnson, 49 Conn. 462. 
 
 » Stamm «. Kuhlman, 1 Mo. App. 296; Leggatt v. Sands' Ale Co., 60' 
 111. 158; Merrick v. Bradley, 19 Md. 50; Bowman v. Chemmer, 50 Ind. 
 10; Miller 17. McDonald, 13 Wis. 673. 
 
 * Fatmani!. Thompson, 2 Disney, 482; Osborn v. Nicholson, 13 Wall. 
 654; Richardson v. Mason, 53 Barb. 601; Nicholls v. Noidheimer, 22 Up> 
 Can. C. P. 48; Snow v. Schomacker Mfg. Co., 69 Ala. Ill, in which it 
 was held that the words " every piano warranted for five years," were 
 held to constitute simply an assurance that the piano had no inherent de- 
 fects which would cause it to break or get out of repair during the five 
 years and was not broken by the existence of any defect iu style or 
 grade. 
 
 287 
 
§ 195 WARRANTY. [CH. XIV. 
 
 less expressly included and referred to.^ But while this 
 may be true, so far as to raise the presumption that the 
 purchaser was aware of the patent defects, and therefore 
 did not rely upon the warranty for protection against, de- 
 fects, of whose existence he was already aware,* yet that 
 presumption cannot be held to be conclusive, and wherever 
 it can be shown that the buyer relied absolutely upon his 
 warranty, and made no attempt to exercise his own judg- 
 ment in the determination of the value and quality of the 
 goods, the warranty will cover obvious, as well as hidden 
 defects.* 
 
 But, in order that in any case the obviousness of the de- 
 fect may exclude it from the operation of the express war- 
 ranty, it must be so patent that an ordinary purchaser may 
 discover it and that no special skill or knowledge is re- 
 quired for its detection.^ And not only must the defect 
 itself be discoverable, but its full and complete scope and 
 effect. If the patent defect does not at the time of sale 
 appSar to be very serious, and it develops into a more seri- 
 ous trouble, the express warranty of soundness will be 
 broken thereby.® And the very fact that the consequences 
 of the defect cannot be reliably determined in advance, is 
 in itself evidence of an intention of the buyer to rely upon 
 the warranty for protection against the possible conse- 
 
 1 Hill u. North, 34 Vt. 604; DlUard v. Moore, 2 Eng. 166; Vande- 
 walker v. Osmer, 65 Barb. 656; Bennett v. Buchan, 76 N. Y. 386; Jordan 
 V. Foster, 6, Eng. 141; Hudgins v. Perry, 7 Ired. 102; McCorniick v. 
 Kelly, 28 Minn. 137; Williams v. Ingram, 21 Tex. .=iOO. 
 
 2 See Long v. Hicks, 2 Humpli. 306; Scliuyler v. Kuss, 2 Caines, 202; 
 Marshall v. Drawhorn, 27 Ga. 276 ; Leavitt v. Fletcher, 60 N. H. 182. 
 
 3 Pianey v. Andrews, 41 Vt. 631 ; Fletcher v. Young, 69 Ga. 591 ; First 
 Nat. Bank v. GrindstafC, 45 Ind. 158. 
 
 * Birdseye v. Frost, 34 Barb. 867; Pinney v. Andrews, 41 Vt. 631; 
 Margetson, v. "Wright, 7 Bing. 603; Henshaw v. Robins, 9 Met. 83; 
 Meickley v. Parsons, 66 Iowa, 68; Fletcher v. Young, 69 Ga. 594; Tye 
 V. Finmore, 3 Camp. 462; Brown. ». Bigelow, 10 Allen, 242; Yates v. 
 Cornelius, 59 Wis. 615. 
 
 ' Fisher v. Pollard, 2 Head, 314; Shewalter v. Ford, 34 Miss. 417. 
 288 
 
CH. XIV.] WARRANTY. § 196 
 
 quences of the defect.^ If the seller throws the purchaser 
 off his guard by his representations or actions, or in any 
 other way conceals the defects, they will of course, so far 
 as that purchaser is concerned, cease to be patent defects 
 and will be included in the warranty.^ 
 
 It hardly needs to be stated that an express warranty 
 may be so constructed as to include every obvious as well 
 as latent defect ; and that the present inquiry is simply 
 into the presumption of law, when the language of the war- 
 ranty is general, and contains no specific or necessary refer- 
 ence to the obvious defects.^ 
 
 § 196. Written and oral warranties. — If the sale is 
 made by a formally written contract, a regular bill of sale, 
 and the warranty of quality is not included, the missing 
 warrant cannot be supplied by parol evidence, whether the 
 warranty be prior to, or contemporaneous with the main 
 transaction, because this would offend the fundamental 
 doctrine that parol evidence is inadmissible to vary or con- 
 trol the terms of a written contract. The warranty, 
 although collateral to the sale, is held to be a material 
 part of the contract, and must, therefore, be included in 
 the writing, if the parties had intended to reduce the con- 
 tract of sale to writing.* But if the writing be only an 
 
 1 Wallace v. Frazier, 2 Nott & McC. 516; Stucky v. Clybiim, Cheves, 
 186; Wilson 1). Ferguson, Cheves, 190; Thompsons. Botts, 8 Mo. 710; 
 Callaway v. Jones, 19 Ga. 277. 
 
 2 Chadsey v. Green, 24 Conn. 662; Grant v. Shelton, 3 B. Mon. 423; 
 Robertson v. Clarkson, 9 B. Mon. 607; Kenner «. Harding, 86 111. 264; 
 Beals 7). Olmstead, 24 Vt. 114; Tabor v. Peters, 74 Ala. 90; Plnney v. 
 Andrews, 41 Vt. 631. 
 
 3 See Marshall v. Drawhom, 27 Ga. 275, 279; Shewalter v. Ford, 34 
 Miss. 422; Brown v. Bigelow, 10 Allen, 244; Meickley v. Parsons, 66 
 Iowa, 63; Hill v. North, 34 Vt. 604; Bank of Kansas City ». Grindstafi, 
 45 Ind. 158; McCormick v. Kelly, 28 Minn. 135. 
 
 * Lamb v. Crafts, 12 Met. 353; Eeed v. Wood, 9 Vt. 286; Boardman 
 V. Spooner, 13 Allen, 353; Frost!). Blanchard, 97 Mass. 155; Merriam z. 
 Sield, 24 Wis. 640; Randall v. Rhodes, 1 Curtis, C. C. 90; Whitmore t. 
 
 19 289 
 
§ 196 WAKKANTY. [CH. XIV. 
 
 informal memorandum or " bill of parcels," instead of a 
 formal writing, and it is not intended by the parties to be 
 the final repository of the intentions of the parties, then 
 the contract of sale is a parol contract, the terms of which 
 may be proved by parol or written evidence, or by a com- 
 bination of both. In such cases, therefore, a warranty 
 need not be proved by written evidence, although all the 
 other terms of the contract may be contained in a memo- 
 randum.^ 
 
 South Boston Iron Co., 2 Allen, 58; Jones c. Alley, 17 Minn. 292; Thomp- 
 son V. Libby, 34 Minn. 374; Shepherd o. Gilroy, 46 Iowa, 193; Galpin v. 
 Atwater 29 Conn. 93; Van Ostrand v. Keed, 1 Wend. 424; Munford v. 
 McPherson, 1 Johns. 414; Dean v. Mason, 4 Conn. 432; Wood v. Ashe, 1 
 Strobh. 407; Pender v. Fobes, 1 Dev. & Bat. 250; MuUaln v. Thomas, 43 
 Conn. 252. But see, apparently contra, dicta in Chapin v. Dobson, 78 N. 
 Y. 80, 81. 
 
 ' In Twell V. Gatewood, 2 Scam. (111.) 23, the court said of the memo- 
 randum : "It possesses none of the constituent parts of a contract, but 
 is, in form and in fact, a bill of parcels, and an acknowledgment of the 
 receipt of the purchase money, and as such was properly received in evi- 
 dence ; but it does not follow that because it is evidence, as far as it goes, 
 it is all the evidence that ought to be received " Atwater v. Clancy, 107 
 Mass. 365; Koop u. Handy, 41 Barb. 454; Gordon v. Waterous, 36 Up. 
 Can. Q. B. 321; Hazard v. Loring, 10 Cash. 267; Cassidy ». Begoden, G 
 Jones & Sp. 180; Wallace v. Rogers, 2 N. H. 506; Fletcher v. Willard, 14 
 Pick. 464; Stacy v. Kemp, 97 Mass. 168; Hildreth v. O'Brien, 10 Allen, 
 104; Sohenck v. Saunders, 13 Gray, 37; Sutton v. Crosby, 54 Barb. 80; 
 Boorman v. Jenkins, 12 Wend. 666; McMullea v. Williams, 5 Ont. App. 
 518; Pesslne ». Cooley, 39 N. J. L. 449; Filkins v. Whyland, 24 N. Y. 
 338. Parol proof of a warranty is for stronger reasons not excluded by 
 the existence of a written receipt for the price. Hersom v. Henderson, 
 21 N. H. 224; Filkins v. Whyland, 24 N. Y. 338. See, generally, in sup- 
 port of the proposition of the text, Briggs v. Hilton, 99 N. Y. 517; Pike v. 
 Fay, 101 Mass. 136; Bradford©. Mauly, 13 Mass. 139; Footw. Bentley, 4-t 
 N. Y. 166; Crocker v. Higgins, 7 Conn. 342; Collins v. Tillon's Adm'r, 
 26 Conn. 368; Bradshaw ». Coombs, 102 111. 428; Bradstreeto. Rich, 78 
 Me. 233; Lash «. Perliu, 78 Mo. 391; Lehndorf v. Schields, 13 Mo. App. 
 486; Green v. Randall, 51 Vt. 67; Risley ». Phoenix Bank of N. Y., 83 N. 
 Y. 318; Hutchins v. Hebbart, 34 N. Y. 24; Potter v. Hopkin?, 25 Barb. 
 416; Willis v. Hubbert, 117 Mass. 151; Davenport v. Mason, 15 Mass. 85; 
 Trevidick v. Mumford, 31 Mich. 470; Kemp. v. Byne, 54 Ga. 527; Irwin 
 V. Thompson, 27 Kan. 643; Cobb v. Wallace, 6 Cold. (Tenn.) 539; Bolc- 
 2{)0 
 
CH. XIV. j WAERANTY. § 196 
 
 A distinction has lately been made by the New York 
 Courts/ between warranties as to existing state of things, 
 and warranties relating to future condition and use, holding 
 that, in the latter ctise, the warranty is an absolutely inde- 
 pendent agreement, which may, therefore, be proved by 
 parol evidence, although the sale had been consummated by 
 a formal written bill of sale.^ This distinction is not recog- 
 nized by other authorities;' and, it must be said, in oppo- 
 
 kow ». Seymour, 17 C. B. N. S. 107; Shephard ?;. Haas, 14 Kans. 443; 
 Thomas v. Hammond, 47 Tex. 42; Barclay v. Hopkins, 59 Ga. 562; Rich- 
 ards V. Fuller, 37 Mich. 161; Tisdale j>. Harris, 20 Pick. 9; Brewster v. 
 Counti-yman, 12 Wend. 446; Fisher v. Abeel, 66 Barb. 381; Thomas v. 
 Nelson, 69 N. Y. 118 ; Sharp v. Rodebough, 70 Ind. 647 ; Kinney u. Whiton, 
 44 Conn. 262; Amonett ». Montague, 63 Mo. 201; Smith v. Shell, 82 Mo. 
 215; Havana R. R. Co. v. Wash, 85 III. 58; Tomlinson v. Bules, 101 Ind. 
 538; Smith w. O'Donnell, 8 Lea, 468; Brown i;. Owen, 94 Ind. 31; Board 
 V. Shipley, 77 Ind. 553; McCuUough o. Girard, 4 Wash. C. C. 289; Bar- 
 ker P. Bradley, 42 N. Y. 316; K. M. Mfg. Co. u. Macalister, 40 Mich. 84; 
 Wright V. McPike, 70 Mo. 175; Gordon v. Gordon, 96 Ind. 134. 
 
 1 Chapin v. Dobson, 78 N. Y. 82; Eighmie v. Taylor, 98 N. Y. 288. 
 
 2 In Chapin v. Dobson, 78 N. Y. 82, where the oral warranty was that 
 the machine should be so constructed as to do the buyer's work satis- 
 factorily, Danforth, J., said: "The written contract and the guaranty 
 do not relate to the same subject-matter. The contract is limited to a 
 particular machine as such. The guaranty is limited to the capacity of 
 the machine. It is one thing to agree tj sell or furnish mach.ues of a 
 specific kind, as of such a patent, or of a particular designation, and 
 another thing to undertake that they shall operate in a particular man- 
 ner, or with a certain efEect, or, as in this case, that they shall do the 
 buyer's work satisfactorily. The first would be performed by the deliv- 
 ery of machines answering the description or the specifications of the 
 patent; and whether they did or did not conform thereto would be the 
 only inquiry. As to the other, it in no respect touches the first, nor does 
 it operate as a defeasance, but leaves it valid and to be performed, and 
 the consequences of a breach of the guaranty are a recoupment or abate- 
 ment of damages in favor of the defendant, and this is so whether the 
 contracts are in writing or not; for the guaranty is valid, although not 
 in writing, and the same rule must apply, for in either case the relation 
 of the guaranty to the contract would be the same." 
 
 ' See Mast v. Pearce, 68 Iowa, 582; Golpin v. Atwater, 29 Conn. 93; 
 Maumberg v. Young, 44 N. J. L. 331, where warranties, which relate to 
 future as well as to present condition, were held to be provable by writ • 
 
 291 
 
§ 196 WAEKANTY. [CH. XIV. 
 
 silion to its soundness, that if it was generally received, it 
 would practically break away the rule requiring warranties 
 to be proved by written evidence, for all the important war- 
 ranties, except those which are confined to establishing the 
 identity of the thing sold, relate to the future adaptation of 
 the thing to the use of the purchaser. And, furthermore, 
 a warrant}' as to the future condition of the thing is as es- 
 sential an inducement to the sale, and hence a part of the 
 contract as the price paid for the goods. ^ 
 
 It must be observed, that the foregoing inquiry into the 
 admissibility of parol evidence to prove a warranty as a 
 part of a contract of sale which has been reduced to writing, 
 was confined to a consideration of warranties, which had 
 been made prior to, or contemporaneous with, the execution 
 of the contract of sale. 
 
 And, although it is true that a warranty given subsequent 
 to the making of the sale, has no binding effect, unless it is 
 supported by a fresh consideration, yet if the requisite con- 
 sideration be present, the subsequent warranty will be bind- 
 ing, although it may be made orally. For a written contract 
 may be limited or completely abrogated by a subsequent 
 oral agreement.^ 
 
 ten evidence, because the contracts of sale had been reduced to writing. 
 The cases cited by the New York court in support of this distinction, 
 were those, in which the memorandum was informal, an 1 for that reason 
 parol proof of the warranty was admissible. See Jeffery v. Walton, 1 
 Stark. 213; Batterman v. Pierce, 3 Hill, 171. In Erskine v. Adeave L. E. 
 8 Ch. App. 756; and Morgan v. GriflSth, L. R. 6 Exch. 70, the warranties 
 related exclusively to present condition, and could only be taken as hold- 
 ing that such warranties were required to be in writing, when the con- 
 tract of sale had been reduced to writing. 
 
 1 See Jones' Construction of Commercial & Trade Contracts, pp. 180- 
 217. 
 
 2 Homer v. Life Ins. Co., 67 N. X. 478; Malone v. Dougherty, 79 Pa. 
 St. 46; Courtenay v. Fuller, 65 Me. 156; Burt v. Sexton, 1 Hun, 551; 
 Eden v. Blake, 13 M. & W. 614; Blanchard v. Trimm, 38 N. Y. 225; 
 Pratt's Adm'r v. United States, 22 Wall. 496 ; Wiggin v. Goodrich, 63 Me. 
 389; Monahan v. Finn, 13 Mo. App. 586. 
 
 292 
 
CH. XIV ] WARRANTY. § 197 
 
 § 1J)7. Remedies for the breach of warranty. — The 
 
 essential distinction between conditions and warranties is in 
 the character of the remedies for their breach, and in the 
 effect of the breach of them on the contracts to which they 
 are attached. The remedy for the breach of the condition, 
 if it is a condition precedent, is the right to repudiate the 
 contract, and if it is a condition subsequent, rescission. ^ 
 
 The breach of the warranty would logically be confined 
 to an action for damages, for if the remedy of rescission or 
 repudiation of the contract were recognized as the legitimate 
 result of the breach of the warranty, the obligation of a 
 warranty would not differ from the effect of a condition ex- 
 cept in the grant to the buyer of the choice of remedies. 
 The authorities do not however keep strictly within the 
 limits imposed by logical distinctions, thus causing consid- 
 erable confusion between the effect of conditions and of 
 warranties, and the effect of refusal to accept performance 
 of the contract. 
 
 In a previous chapter,^ it has been explained that the 
 contract of sale is not completely executed by the delivery, 
 until the goods have been received and accepted by the 
 buyer, and that the buyer has the right to reject the goods, 
 if they are not what he had bought. If, therefore, the 
 buyer has bought goods by sample or by description, upon 
 receiving the goods, he may proceed to inspect them, and 
 if they do not conform to the sample or to the description, 
 he may reject them, and by notifying the seller of his de- 
 cision, the goods are placed at the risk of the seller. The 
 buyer may then either return the goods to the seller, or 
 hold them for a reasonable time at the risk, and subject 
 to the order, of the seller ; and if the seller fails to make a 
 disposition of the goods, the buyer has the right to sell 
 them for the account of the seller.^ 
 
 1 See post, § 202. 2 See ante, chapter IX, § 114. 
 
 3 Heilbut V. Hlckson, L. R. 7 C. P. 438; Messmore v. N. Y. Shot Co., 
 
 293 
 
§ 197 WARRANTY. [CH. XIV. 
 
 Now, three views may be taken of these transactions : 
 first, that there was want of performance of the principal 
 contract of sale, in that the seller did not deliver what was 
 bought ; 1 secondly, that the failure of the goods which 
 were delivered to conform to the sample or description, 
 constituted the breach of an implied condition, and thirdly, 
 that it was a breach of an implied or express warranty. 
 Under the first two views no difficulty is experienced in 
 recognizing the right of rejection as a consequence of the 
 non-conformity of the goods to sample or description. 
 And some of the authorities maintain that these are the 
 onlj' views that can be taken of the transaction. ^ But 
 according to other authorities, the non-conformity of the 
 goods to sample and description is to be treated as a breach 
 of an implied warranty. There would hardly seem to be 
 any necessity for an implied warranty in such cases, for the 
 remedy under the theory of a breach of a condition pre- 
 cedent, as well as under that of a want of performance of 
 the contract of the sale, was all-sufficient. Andtheuse- 
 lessness of the doctrine of an implied warranty in such 
 cases is made still more manifest, when, under the earlier 
 cases, it is held that whenever the buyer accepts the goods, 
 after he has had an opportunity to examine the goods, he 
 is precluded from any further remedy for the want of coii- 
 
 40 N. Y. 422; Couston v. Chapman, L. R. 2 H. L. C. 250; Freeman v. 
 Cliute, 3 Barb. 424; Parke v. Morris Axe Co., 4 Lans. 103; Pope ». AlUs, 
 115 U. S. 363; Magee v. Billingsley, 3 Allen, 679; Lorymer v. Smith, 1 
 Barn. & C. 1; Grimoldby v. Wells, L. R. IOC. P. 391; Gill v. Kaufman, 
 16 Kan. 671; Brown v. Corp. of Lindsay, 35 Up. Can. Q. B. 509; Lucy 
 V. Mouflet, 5 H. & N. 233. 
 
 1 See Jones v. George, 61 Tex. 345. 
 
 2 See Pope v. Allis, 115 U. S. 363, 371; Barr i>. Gibson, 3 M. & "W. 
 390; Okell ®. Smith, 1 Stark. 86; Woodle v. Whitney, 23 Wis. 25; Fair- 
 field V. Madison Mfg. Co., 38 Wis. 346; Nichol v. Godts, 10 Ex. 91; 
 Norrington v. Wright, 115 U. S. 188, 203; Filley v. Pope, 115 U. S. 213, 
 219; Boothby v. Scales, 27 Wis. 626; Gompertz v. Bartlett, 2 El. & B. 
 849; Chanter v. Hopkins, 4 M. & W. 399, 404. 
 
 294 
 
CH. XIV. ] WAEKAXTT. § li)~ 
 
 forinity of the goods to sample or description.* But if 
 the goods are consumed in the examination of them, the 
 only remedy for the buyer is to claim damages for non- 
 conformity to sample or description.^ 
 
 It is true that there may be an express warranty of con- 
 formity to sample or description, which is exacted by the 
 buyer for the very purpose of being relieved of the neces- 
 sity of an immediate examination and rejection of the 
 goods, if they are not up to sample. And the doctrine of 
 implied warranty would be of value, if the remedy for the 
 breach of it was not lost by an acceptance after an exami- 
 nation of the goods became possible. Hence, if the im- 
 plied warranty is to be recognized at all, the later New 
 York cases lay down the better rule, when they hold that 
 the acceptance of the goods after an opportunity for ex- 
 amination, does not preclude the recovery of damages for 
 the breach of the implied warranty that the goods will 
 conform to sample or description.^ The better statement 
 of the law in this connection is that, as long as there is no 
 acceptance of the goods, of the kind that constitutes a 
 
 1 McCormick v. Sarson, 45 N. Y. 265; Morse v. Brackett, 98 Mass. 
 205; Barnard ■■«. Kellogg, 10 Wall. 383; Carson v. Baillie, 19 Pa. St. 375; 
 Dutchess Co. V. Harding, 49 N. Y. 321; Barton v. Kane, 17 Wis. 38; 
 Reed v. Eandall, 29 N. Y. 858, 368; Sprague v. Blake, 20 Wend. 61. The 
 buyer's remedies for breach of the warranty will not be affected by his 
 acceptance of the goods, where the acceptance is induced by fraud or 
 ar ifice, which in any way prevented or hindered an examination of the 
 goods. Dutchess Co. v. Harding, 49 N. Y. 321; Mody v. Gregson, L. R. 
 4 Ex. 49. Nor will the buyer's acceptance of a part of the goods pre- 
 vent his rejection of the remainder which is subsequently delivered. 
 Hubbard ». George, 49 111. 275; Farmer v. Gray, 20 Neb. 403. But an 
 inspection of a part will preclude subsequent rejection of the remain- 
 der, if the whole is accepted in reliance upon'the partial examination. 
 Dutchess V. Harding, 49 N. Y. 321; Barton v. Kane, 17 Wis. 38. 
 
 2 Jones V. George, 61 Tex. 345. 
 
 8 Briggs V. Hilton, 99 N. Y. 617; Kent v. Friedman, lOl.N. Y. 616; 
 Day V. Pool, 62 N. Y. 416; Gumey v. Atlantic Ey. Co., ,58 N. Y. 358; 
 Gautier v. Douglass, &c., Co., 13 Hun, 514; Marshuetz v. McGreevy, 
 23 Hun, 408. 
 
§ 197 WARRANTY. [CH. XIV. 
 
 complete execution of the contract of sale ^ the failure of 
 the goods to conform to the sample or description consti- 
 tutes a breach of an implied condition precedent. But if 
 a rejection and return of the goods become impracticable, 
 either through consumption in examination or by accept- 
 ance without examination, then the buyer's remedies still 
 survive for the breach of the warranty.^ 
 
 If the warranty is express, and more particularly, if it 
 relates to the future condition or use of the thing sold, or 
 its conformity to the warranty can only be determined by 
 a more or less prolonged use of it, the logical difficulties 
 are not so great. And without a consideration of the 
 practical reasons, assigned by some of the cases for holding 
 otherwise,* the conclusion would be easily reached that the 
 only remedy for the breach of warranties of this kind, is 
 an action for damages. And this is the conclusion of the 
 English and many American authorities.* But in a majority 
 of the American States, for the purpose of avoiding circuity 
 of action, as it is claimed, the buyer may, even after ac- 
 ceptance of the goods, bring his action for breach of war- 
 ranty, rescind the contract of sale and return the goods in 
 place of bringing his action for damages.* 
 
 1 See ante, § 116. 
 
 2 See Wolcott v. Mount, 36 N. J. L. 262; Jones v. George, 61 Tex. 
 346; Behn v. Burness, 3 Best & Smith, 755; Ellen v. Topp, 6 Ex. 424- 
 441; Graves v. Legg, 9 Ex. 709-716; Boone v. Eyre, 1 H. Bl. 273; El- 
 liott V. Von Glehn, 10 C. B. (n s.) 844. 
 
 3 See further on in same section. 
 
 < Street v. Blay, 2 Barn. & Ad. 456; Mondell v. Steel, 8 M. & W. 858; 
 Heyworth W.Hutchinson, L. B. 2 Q. B. 447; Dawson v. Collis, 10 C. B. 630; 
 Day V. Pool, 52 N. Y. 416; Messmore v. N. Y. Shot, &c., Co., 40 N. Y. 422; 
 Lawton v. Keil, 61 Barb. 558; Briggs v. Hilton, 99 N. Y. 517'; Freymano. 
 Knecht, 78 Pa. St. 141; Bunce v. Beck, 43 Mo. 279; Lyon v. Bertrqw, 20 
 How. 149. 
 
 '> Dorr V. Fisher, 1 Cush. 271; Morse v. Brackett, 98 Mass. 209; Mar- 
 shall v. Perry, 67 Me. 78; Rogers v. Hanson, 35 Iowa, 283; Gates i;. Bliss, 
 43 Vt. 299; Youghiogheny Iron Co. ». Smith, 66 Pa. St. 340; Marsh?;. 
 Low, 55 Ind. 271 ; Paulson v. Osborn, 27 N. W. Bep. (Minn.) 203 ; Moral 
 296 
 
CH. XIV.] WARRANTY. § 197 
 
 The action for damages may not only be an independent 
 action for the breach of the warranty, but the claim for 
 damages may be set up as a set-off or counter-claim in the 
 seller's action for the price.^ 
 
 School Township v. Harrison, 74 Ind. 93; Dill ». Ferrell, 45 Ind. 268 ; 
 O'Malley v. Hendrickson, 29 N. J. L, 371; Ralph v. Chicago, &c., Co., 32 
 Wis. 177; Butler v. Northumberland, 60 N. H. 33; Jack v. Des Moines R. 
 R. Co., 53 Iowa, 399 ; Hyatt v. Boyle, 5 Gill. & J. 121 ; Marston v. Knight, 
 29 Me. 341 ; Bryant v. Isburgh, 13 Gray, 637. 
 
 1 Coventry v. McEviry, 13 Ir. Com. L. Rep. 160; Morrill u. Nightin- 
 gale, 39 Wis. 247; Getty v. Kountree, 2 Finn. 379; 2 Chand. 28; Smith v. 
 Dunham, 2 Eerr. 630. 
 
 297 
 
CHAPTEK XV. 
 
 CONDITIONS AND CONDITIONAL SALES. 
 
 Sbction 200. Conditional-sales defined — Kinds of conditions. 
 
 201. Words necessary to create a conditional sale. 
 
 202. Conditions distinguished from warranties. 
 
 203. Sales upon condition distinguished from consignments — 
 
 Conditional sales disguised as leases . 
 
 204. Sales upon condition distinguished from chattel mort- 
 
 gages — Sales with the right to repurchase. 
 
 205. Preparation of goods for delivery by vendor, as a condi- 
 
 tion precedent. 
 
 206. Conditions precedent to be performed by purchaser — Pre- 
 
 payment as a condition. 
 
 207. Mutual or concurrent conditions — Sales for ' ' cash on 
 
 delivery." 
 
 208. Condition as to time and place of performance. 
 
 209. Successive deliveries — Deliveries in installments. 
 
 210. Successive payments — Sales with installments of pay- 
 
 ment. 
 
 211. Notice as a condition precedent. 
 
 212. Sales dependent upon the acts of others. 
 
 213. Sales on trial — Sale or return — What constitutes a sat- 
 
 isfactory sale. 
 
 214. Sale of goods to arrive. 
 
 216. Correspondence of bulk with sample or description — 
 Genuineness of commercial securities. 
 
 216. Remedies for the breach of a condition. 
 
 217. Waiver of conditions — Effect of delivery in cash transac- 
 
 tions — Effect of delay in enforcing forfeiture. 
 
 218. Impossibility of performance — Illegality of condition — 
 
 Obstruction of performance by other party. 
 
 219. Equitable relief against forfeiture. 
 
 § 200. Conditional sales defined — Kinds of condi- 
 tions — A conditional sale is one by which the right of 
 property in. chattels is made to vest, to be modified or 
 2f»8 
 
CH. XV. J CONDITIONAL SALES. § 200 
 
 defeated upon the happening or not happening of some 
 event.* 
 
 If the right of property is to be vested or enlarged upon 
 the performance of the condition, and not before, it is 
 culled a condition precedent, if the condition is to defeat 
 or cut down an estate already vested, it is a condition subse- 
 quent. If in a contract of sale the execution of it hy one 
 of the parties is made conditional upon its performance by 
 the other, the condition is said to be mutual or concurrent, 
 but it is only a complex condition precedent ^ It is not 
 always an easy matter to determine, in a given case, whether 
 a condition is precedent or subsequent. The parties do 
 not always use language sufficiently definite, to enable this 
 distinction to be made with any certainty. The question 
 does not seem to have been raised to any extent, if at all, 
 in the construction of conditional sales of personal prop- 
 erty,^ the recorded cases having arisen out of conveyances 
 and devises of real estate upon condition; but, although it 
 may be seldom that the difficulty arises in the case of the 
 transfer of personal property, when it does arise, it may be 
 solved by the application of the same rule, which governs 
 the question in the law of real property * The rule, by 
 paraphrasing an extract from the decision of one of the 
 real estate cases ^ may be stated as follows : " If the act or 
 
 1 1 Bouvier Law Diet., Condition, 312; Tiedeman Real Prop., § 271; 
 2 Wash. Co. on Keal Prop, 2; Co. Lit. 201a; 2 Sctiouler on Personal Prop., 
 §§ 277-284. 
 
 2 See, generally, on the kinds of conditions, Hickman v. Shimp, 109 
 Pa. St. 16; Redman v. Jitna. Ins. Co., 49 Wis. 438; Seddeu v. Pringle, 17 
 Barb. 4C6; Ludlow v. N. T. & H. R. R. Co., 12 Barb. 442; Fishback v. 
 Van Dusen, 33 Minn. Ill, 116; Cadwell v. Blake, 6 Gray, 402; Chapin v. 
 School District, 35 N. H. 450 ; N. & N. W. R. R. Co. v. Jones, 2 Cold. 584 ; 
 Atkinson v. Smith, 14 M. & W. 695; Bankart v. Bowers, L. R. 1 C. P. 484; 
 Withers v. Reynolds, 2 Barn. & Ad. 882. 
 
 2 See Carpenter v. Scott, 13 R. I. 477. 
 * See Tiedeman on Real Prop., § 273. 
 
 6 Underhill v. Saratoga, &c., R. R. Co., 20 Barb. 456. See, also, 
 Finlay v. King's lessee, 3 Pet. 340; Haydeu v. Stoughton, 5 Pick. 528; 
 
 299 
 
§ 201 CONDITIONAL SALES. [CH. XV. 
 
 condition required do not necessarily precede the transfer 
 of title to the goods, but may accompany or follow it, and 
 if the act may as well be done after, as before, the transfer 
 of title; or if, from the nature of the act to be performed, 
 and the time required for its performance, it is evidently 
 the intention of the parties that the title shall pass, and the 
 buyer perform the act, after taking possession, then the 
 condition is subsequent." Conditions are also divided into 
 express and implied. An express condition is, as its name 
 implies, one which is expressly created and annexed to the 
 sale ; while an implied condition is not expressly declared, 
 but arises by implication of law as incidents of sales in 
 general, or of certain sales.' The annexation of a condi- 
 tion subsequent to a sale of personal property does not 
 restrict the transfer of the property by the conditional 
 vendee, except that the purchaser from the vendee will 
 take the property subject to the possibility of forfeiture 
 for the breach of the condition.^ 
 
 § 201. "Words necessary to create a conditional sale. — 
 
 No particular words or forms of expression are really nec- 
 essary for the creation of a conditional sale . Any words, 
 which indicate an intention to annex a condition to the sale, 
 will be sufficient. Such phrases, however, as " on condi- 
 tion," " provided," " if it shall so happen," etc., are found 
 
 Austin V. Cambridgeport Parish, 21 Pick. 215; Van Eensselaer ti. Ball, 
 19 N. Y. 100; Horsey v. Horsey, 4 Harr. 517; Jones v. Walker, 13 B. 
 Mon. 163; Jones v. Doe, 2 111. 276; Barksdale v. Elam, 30 Miss. 694; 
 Monroe v. Bowen, 26 Mich. 623; Rogan v. Walker, 1 Wis. 627; Hunt v. 
 Beeson, 18 Ind. 382; Waters v. Bieden, 70 Pa. St. 235; Barruss v. Madan, 
 2 Johns. 145; Wheeler v. Walker, 2 Conn. 201; Marwick v. Andrews, 25 
 Me. 525; Taylor v. Maxon, 9 Wheat. 325. 
 
 ^ See post, §§ 205-207, for examples of implied conditions in sales. 
 See, also, Tiedeman on Real Prop., § 271. 
 
 2 See Wilson v. Wilson, 38 Me. 18; Underhill v. Saratoga, &c., R. E. 
 
 Co., 20 Barb. 45; Taylor v. Sutton, 15 Ga. 103. These ca>es are taken 
 
 from the law of real property, but the principle of the text applies with 
 
 equal, if not greater, force to the conditional sale of personal property. 
 
 300 
 
Cil XV.] CONDITIONAL SALES. § 202 
 
 in constant use, in tlie making of conditional sales, and, if 
 employed, will usually remove any doubt as to the sale or 
 transfer being conditional. But wiiether these expressions 
 are used or not, if the intention of the parties, to make the 
 s;ile dependent upon the happening of some event or the 
 performance of some collateral obligation, can be ascer- 
 tained from the expressions of the parties, it will be a con- 
 ditional sale, it matters not what may be the language 
 used.i In the case of dispositions of personal property by 
 will, it is more difficult, than in sales, to determine whether 
 tliey are conditional, because the language used by testa- 
 tors is ordinarily looser and more inexact. But inasmuch 
 as a consideration of these transfers is not within the 
 limits of the subject of the present volume, nothing more 
 than a passing reference to it is permissible. 
 
 § 202. Conditions distinguished from warranties. — 
 
 In a previous chapter,^ the subject of warranties has been 
 fully treated, and during a discussion of some of the im- 
 plied warranties, it was shown how the courts had created 
 contusion in failing to distingui-h between conditions and 
 warranties,' and the matter will be discussed again from the 
 standpoint of conditions.* The settlement of this question, 
 so far as it relates to implied conditions, is a matter of im- 
 plication of law, and irrespective of the intentions of the 
 parties. Whether an express condition has been created 
 or not depends upon the intention of the parties. 
 
 If the parties intended to annex a condition to the sale, 
 then the parties must have intended that the title shall not 
 pass until the condition is performed, or shall be defeated 
 
 1 See Goldsborough v. Orr, 8 Wheat. 217; Gill v. Weller, 52 Md. 8; 
 Kane v. Hood, 13 Pick. 281; Tipton v. Feitner 20 N. Y. 423; Isaacs v. N. 
 Y. Plaster Works, 67 N. Y.124. 
 
 2 See ante, Chap. XIV. 
 « See ante, § 197. 
 
 ■• See post, § 216. 
 
 301 
 
§ 2U3 CONDITIONAL SALES. [CH. XV. 
 
 when the condition is broken. Whereas a warranty is 
 simply ail undertaking that the seller will be responsible to 
 the buyer for all damage which the latter may suffer from 
 the misrepresentation of the seller. The breach of a war- 
 ranty in no wise affects the title of the vendee to the goods, 
 unless the language, which creates the warranty, also 
 creates a condition. And this may be done, by employing 
 in the same sentence words of condition as well as words 
 of assurance. Thus, it is quite common in deeds of con- 
 veyance, to precede a clause by the phrase: " Provided, 
 and it is hereby agreed or guaranteed that," etc. Under 
 these circumstances, the clause which follows would be a 
 condition, because of the presence of the word " provided," 
 which shows the intention to create a condition, and a 
 covenant of warranty, because of the words of contract. 
 
 § 203. Sales upon condition distinguished from con- 
 signments — Conditional sales disguised as leases. — A 
 
 sale may be made so that the title to the goods shall remain 
 in the vendor, until the performance of the condition, al- 
 though the possession be given to the vendee. But such 
 a conditional sale is liable to be confounded with a con- 
 signment to sell. If the agreement of the parties, when 
 the possession is transferred, is that the transferee is to 
 have the title, whenever the condition — it may be the 
 payment of the price — is performed, it is a conditional 
 sale; but if the agreement is that the transferee must 
 take the goods and sell them for the account of the trans- 
 ferrer, it will be a consignment of goods to sell, a bailment 
 and not a conditional s;de, although the transferee may be 
 authorized by the terms of the contract to be a purchaser 
 of the goods. ^ 
 
 1 See Waters v. Butterlck, 105 Mass. 237; Nutter v. Wheeler, 2 Low. 
 C. C. 346; Fish v. Benedict, 74 N. Y. 618; In re Linforth, 4 Sawy. C. C. 
 370; Andenried v. Betteley, 8 Allen, 302. 
 302 
 
CH. XV.] CONDITIONAL SALES. § 203 
 
 The purpose of a conditional sale, in which the title is 
 not to pass until the price is paid, although possession is 
 given to the vendee, is to enable the vendor to recover the 
 property, in case the price is not paid. If the property 
 remains in the vendee's hands, it can be recovered by the 
 vendor on the breach of the condition, and in most of the 
 States it could be recovered, although the property had 
 passed into the hands of a bona fide purchaser.^ But in 
 several of the States, including Pennsylvania, New York, 
 and at one time Alabama, the conditional vendee was held 
 to be able to transfer a good title to a bona fide purchaser, 
 and thus the conditional sale would not be a very good se- 
 curity for the payment of the price. In consequence of 
 this danger, the vendors of sewing machines, pianos, or- 
 gans and furniture, prepared an instrument in writing in 
 the form of a lease, whereby it appeared that the vendor 
 had leased the subject-matter of the transaction upon the 
 payment at stated periods of what was called rent; that 
 upon any default in the payment of this " rent," the vendor 
 or lessor was entitled to recover the possession of what had 
 not ceased to be his property, and that when the last period- 
 ical payment is made, the thing was to become the property 
 of the "lessee." From the four corners of the instru- 
 ment, from the language, as well as from the relation of 
 the parties to the thing, it is plain that a conditional sale 
 was intended, and was disguised :is a lease, in order to pre- 
 vent the loss of the goods on default of payment, by a trans- 
 fer of them to a bona fide purchaser.^ If the periodical 
 payment was of " rent," then the ultimate transfer of thfe 
 property, if that was to be considered as an independent 
 transaction, was without consideration, for the so-called 
 
 1 See post, Chap. XXI. 
 
 2 Hervey v. Locomotive Works, 93 U. S. 664, Davis, .T. : " It was 
 evidently not Intended that this large turn should be paid as rent for the 
 mere use of the engine for one year. If so, why a-jree to sell and con- 
 voy the full title on the payment of the last installment." 
 
 303 
 
§ 203 CONDITIONAL SALES. [CH. XV. 
 
 "rent" will have become executed by the time that the 
 agreement to transfer goes into effect ; and if the transfer 
 of title ia supported by the same consideration, then the 
 rights of the parties must have become fixed at the time 
 that the contract was made, and there is no escape from the 
 conclusion that, the principal part of the transaction being 
 the transfer of the title, the transaction is a sale upon 
 condition that the title to the goods is not to pass until 
 the price is paid. A man can acquire title to goods, in 
 consideration of a sum or sums of money, by only one 
 transaction, and that is, a sale. No one ever acquired a 
 title to goods by a lease. If the option was given to the 
 "lessee" of ultimately buying the goods at a stipulated 
 price, and in the meanwhile the possible vendee is to hire 
 the property at a rental, — which is something different 
 from and independent of, the price to be paid for the 
 goods if the "lessee" ultimately decides to buy — the 
 transaction is undoubtedly a bailment, until the bailee or 
 " lessee" decides to buy.^ But in these so-called " leases " 
 by these periodical payments of " rent," the " lessee " is by 
 degrees performing the condition upon the full performance 
 of which he is to become the owner of the property, and 
 the present possession is a mere incident of the ultimate 
 transfer of the title. A disguise cannot change the sub- 
 stance of things. 
 
 In order, however, to give to the vendor a full protection 
 
 1 In Forrest y. Nelson, 19 Eep. (Pa.) 380, Sterrett, J., says; " A pres- 
 ent sale and delivery of personal property to the vendee, coupled with au 
 agreement that the title shall not vest in the latter unless he pays the 
 price agreed upon at the time appointed therefor, and that in default of 
 such payment the vendor may recover possession of the property, is 
 quite different in its effect from a bailment for use, or, as it is some- 
 times called, a lease of the property, coupled with an agreement where- 
 by the lessee may become owner of the property upon payment of a 
 price agreed upon. As between the parties to such contracts both are 
 valid and binding; but as to creditors, the latter is good, while the 
 former is invalid." 
 304 
 
CH. XV. J CONDITIONAL SALES. § 204 
 
 against a disposition of the property by the buyer to a bona 
 fide purchaser, from whom the vendor could not recover it 
 upon the breach of the condition,^ the courts have in sev- 
 eral of the States held that these dubious transactions were 
 present leases with the conditional right of sale in futuro? 
 But in most of the States, the conditional vendee cannot 
 give a hona fide purchaser any better title than what he has, 
 and hence in these States, it is held that these transactions, 
 although disguised as leases, are essentially conditional sales, 
 and that they must be considered to be such for all pur- 
 poses.^ 
 
 § 204. Sales upon condition distinguished from chattel 
 mortgages — Sale with right to repurchase. — It is very 
 of ten diflScult to distinguish between a chattel mortgage, and 
 a sale with the conditional riglit to repurchase the property ; 
 and often the attempt is made to disguise a chattel mort- 
 gage as a conditional sale of the Isind described, in order to 
 escape from the statutory regulation of the mortgage. 
 And, apart from th« statutory regulations concerning the 
 mortgage, it is irnportant to distinguish between chattel 
 
 1 See pott. Chap. XXI. 
 
 2 Chamberlain v. Smith, 44 Pa. St. 431 ; Eowe v. Sharp, 51 Pa. St. 26; 
 Crist V. Kleber, 79 Pa. St. 290; Enlow v. Klein, 79 Pa. St. 488; Becker v. 
 Smith, 69 Pa. St. 469; Henry u. Patterson, 57Pa. St. 346; Forrest «. Nel- 
 son, 19 Rep. (Pa.) 380; McOall o. Powell, 64 Ala. 264. See also Sargent 
 n. Giles, 8 N. H. 325; Bailey v. Colby, 84 N. H. 29; Havilauds. Johnson, 
 7 Daly, 297; Austin v. Dye, 46 N. Y. 500; Bean v. Edge, 84 N. Y. 510. 
 But see Stadfeldt ». Huntsman, 92 Pa. St. 53. 
 
 3 Hervey v. Locomotive Works, 93 U. S. 664; Hine w. Roberts, 48 
 Conn. 267; Carpenters. Scott, 13 K. I. 477; Price v. McCallister, 3 Grant 
 (Pa.), 248; Cole v. Berry, 42 N. J. L. 308; Murch v. Wright, 46 111. 487; 
 Sumner ». Cattey, 71 Mo. 121; Kohler v. Hayes, 41 Cal. 455; Domestic 
 Sewing Machine Co. v. Anderson, 23 Minn. 5'; Heg'er i;. Eddy, 53 Cal. 
 597; Singer Co. v. Holcembe, 40 Iowa, 33; Lucas ®. Campbell, 88 111. 
 447; Singer Mfg. Co. u. Cole, 4 Lea, 439; Greer v. Church, 13 Bush, 430; 
 Whitcomb ii. Woodworth, 54 Vt. 544; Loomis ». Bragg, 50 Conn. 228; 
 Myer». Car. Co., 102 U. S. 1; Heryford ». Davis, 102 U. S. 235. See 
 Stadtfeldt v. Huntsman, 92 Pa. St. 53. See, also, ante, § 9. 
 
 20 305 
 
§ 204 CONDITIONAL SALES. [CII. XV. 
 
 mortgages and the sale with right to repurchase, in that the 
 mortgagor' may redeem his property even after condition 
 broken, whereas in the sale with right to repurchase, the 
 repurahase must be made if at all within the time agreed 
 upon. The vendor cannot claim the right to repurchase 
 the property, after the title of the vendee has become ab- 
 solute by the breach of the condition.^ The test for deter- 
 mining the character of these doubtful transactions is as 
 follows : If (he transfer is made for the purpose of secur- 
 ing the payment of an existing debt, it is a mortgage ; it 
 matters not what may be the form of the transaction. But 
 if there is no debt at all, or the sale extinguishes the debt, 
 and the right to repurchase is an independent collateral in- 
 terest, then the transaction is a conditional sale, and not a 
 mortgage.^ Where it is doubtful whether the transaction 
 is a mortgage or conditional sale, the courts lean in favor 
 of the construction which makes the, transaction a mort- 
 gage; for there is less damage resulting from an erroneous 
 construction in that direction, than if the error was made 
 
 1 See post, Chapter XVI. lor a discussion of Chattel Mortgages. 
 
 2 " A conveyance to secure a debt is a mortgage, and the stipulations 
 of the parties cannot make it otherwise. But a conveyance to pay a debt 
 is a totally different affair. If the conveyance extinguishes the debt, and 
 the parties so intend, so that a plea of payment would bar an action, a 
 subsequent or contemporaneous stipulation in the interest of the debtor, 
 securing to him an opportunity to re-acquire the title, ought not to be 
 construedtothe creditor's prejudice. Suchatransactionis no mortgage, 
 but a conditional sale." Currier, J., in Turner v. Kerr, 44 Mo. 429. See, 
 also, to same effect. Parish v. Gates, 29 Ala. 254 ; Houser v. Camp, 3 Pa. 
 St. 208; Blodgett v. Blodgett, 52 Vt. 32; Robinson v. Willoughby, 65 N. 
 C. 520; Keeves v. Sebern, 16 Iowa, 234; Muogat v. Pumpelly, 46 Wis. 
 660; Moore v. Murdock, 26 Cal. 514; Slowey v. McMurray, 27 Mo. 113; 
 Cooper V- Brock, 41 Mich. 488; Ruffler v. Womack, 30 Tex. 332; Wilmer- 
 ding V. Mitchell, 13 Vroom, 476; Todd v. Campbell, 32 Pa. St. 250; Smith 
 V. Seattle, 31 N. Y. 542. Where the relation of debtor and creditor had 
 never existed between the parties, the transaction must be a sale with 
 right to repurchase, and cannot be a mortgage. Conway v. Alexander, 7 
 Cranch, 218; Thompson v. Chumney, 8 Tex. 389; Glover v. Payne, 1* 
 Wend. 618; Logwood v. Hussey, 60 Ala. 417. 
 
 306 
 
CH. XV.] CONDITIONAL SALES. § 204 
 
 in the other direction, and a mortgage was construed to be 
 a conditional sale.' 
 
 The same difficulty of distinguishing sales with right to 
 repurchase from mortgages is experienced in the -law of 
 real estate mortgages,^ and there it is held that the answer 
 to the question depends upon the facts and circumstances 
 of each case. Among the circumstances which tend to es- 
 tablish the presumption that the transaction is a mortgage, 
 are the inadequacy of the consideration, the continued 
 possession of the vendor, the necessities or financial em- 
 barrassments of the vendor ; while the adequacy of the con- 
 sideration, the possession of the vendee, the existence of 
 other securities for the payment of the consideration .of the 
 original sale, go to prove that it was a conditional sale, or 
 that the grantor has only the right to repurchase.* 
 
 1 Locke V. Palmer, 2B Ala. 312; Parish v. Gates, 29 Ala. 254. See, 
 also, to same effect, ia regard to real estate mortgages, Russell v. South- 
 ard, 12 How. 139 ; Eaton v. Green, 22 Pick. 526 ■ Crane v. Bonnell, 1 Green 
 Ch. 264; Baugher v. Merriman, 32 Md. 185; Bacon v. Brown, 19 Conn. 
 34 ; Turnipseed ». Cunningham, 16 Ala. 501 ; Cottrell v. Long, 20 Ohio, 
 464; Gillis v. Martin, 2 Dev. Eq. 470; O'Neill v. Capelle, 62 Mo. 209; 
 Turner v. Kerr, 44 Mo. 429; Heath v. Williams, 30 Ind. 498; Scott ii. 
 Henry, 13 Ark. 112; Sweetland v. Sweotland, 3 Mich. 645; Trucks v. 
 Lindsay, 18 Iowa, 504; Ward v. Deeriug, 4 Mon. 44. See, also, some 
 doubtful cases, which were held to be conditional sales. 
 
 2 See Tiederaan on Real Prop., § 305. 
 
 3 The following cases refer to sales of real estate, but the same prin- 
 ciples apply to conditional sales of personalty. Williams v. Owen, 5 
 Mylne & C. 303; Haines v. Thompson, 70 Pa. St. 442; Hiester v. Madeira, 
 3 Watts & S. 384 ; Baker v. Thrasher, 4 Denio, 493 ; Slowey v. McMur- 
 ray, 31 Mo. 113; Conway v. Alexander, 7 Cranch, 218; Holmes v. Grant, 
 
 8 Paige Ch. 243; Russell v. Southard, 12 How. 139; Waters v. Randall, 6 
 Met. 479; Todd v. Hardie, 5 Ala. 698; West u. Hendrix, 28 Ala. 226; 
 Luckett V. Townsheud, 3 Tex. 119; Edington v. Harper, 3 J.J. Marsh. 
 353; Davis ». Stonestreet, 4 Ind. 101; Sellers a. Stalcup, 7 Ired. Eq. 13; 
 Bennett v. Holt, 2 Yerg. 6; Flagg v. Mann, 14 Pick. 467; Low v. Henry, 
 
 9 Cal. 538; Warren v. Lovis, 53 Me. 463; Ransone ». Frayser, 10 Leigh, 
 592; Gibson 1). Eller, 13 Ind. 124; Campbell v. Dearborn, 109 Mass. 130; 
 Thompson v. Bauks, 2 Md. Ch. 430; Freeman v. Wilson, 51 Miss. 329; 
 Brown v. Dewey, 1 Sandf. Ch. 56; Garr v. Rising, 62 111. 14; Pearson v. 
 Seay, 35 Ala. 612; Elliott v. Maxwell, 7 Ired. Eq, 246; Trucks v. Lindsey, 
 
 307 
 
§ 205 CONDITIONAL SALES. [CH. XA'. 
 
 If there is no debt prior to the transaction, and the parties 
 by their language indicate an Intention that the vendee 
 shall not acquire an absolute title until the purchase-money 
 is paid, the transaction is undoubtedly a conditional sale, 
 dependent upon the condition precedent of the payment of 
 the purchase-money, and not a mortgage.' 
 
 § 205. Preparation of goods for delivery by vendor, as 
 a condition precedent. — While it is not always the duty 
 of the vendor to deliver the goods to the vendee, before he 
 can hold the vendee liable on the contract of sale,^ yet the 
 liability of the vendee is always dependent upon the con- 
 dition precedent, unless changed by express agreement of 
 the parties, that the vendor has done everything necessary 
 to make the goods ready for delivery to the vendee. Not 
 only, under this general rule, is it necessary for the vendor 
 to complete the manufacture of the goods, if they were to 
 have been made expressly for the vendee,^ and to put the 
 goods generally into a deliverable condition,* but it is also 
 necessary for the goods sold to be separated from the bulk 
 of stock, and weighed, counted or measured, before the 
 vendee can be held bound by the contract.^ But it is the 
 
 18 Iowa, 504; Gibbs v. Penny, 43 Tex. 560; Crews v. Threadgill, 35 Ala. 
 334; Wilson v. Patrick, 34 Iowa, 361; Daubenspecb v. Piatt, 22 Cal. 330. 
 
 1 In Clayton v. Hester, 80 N. C. 275, an instrument signed and sealed 
 by B. promising to pay C. f 150 " for one bay horse bought of him, and 
 to secure him the horse stands his own security " was held to be a con- 
 ditional sale. See, also, similar cases, in Worthy v. Cole, 69 N. C. 157; 
 Uowan V. Union Arms Co., 36 Vt. 124. 
 
 2 See ante, § 94. 
 
 3 Comfort!). Kiersted, 26 Barb. 472; Williams v. Jackman, 16 Gray, 
 514; West Jersey R. E. Co. v. Trenton Car Works, 32 N. J. L. 517; An- 
 drews V. Durant, 11 N. Y. 35. 
 
 « Elgee Cotton Cases, 22 Wall. 180; Bond v. Greenwald, 51 Tenn. 453; 
 Keeler r. Vandervere, 5 Lans. 313; Groffeu. Belche, 62 Mo. 400; McClung 
 V. Kelly, 21 Iowa, 508; Cleaver v. Ogle, 1 Houst. 453; Wilkinson v. 
 Holiday, 33 Mich. 386; Foster v. Hopes, 111 Mass. 10; Pritchett v. Jones, 
 4 Eawle, 260; Smith v. Parkman, 55 Miss. 649. 
 
 ' Stone*. Peacock, 35 Me. 385; Messer v. Woodman, 22 N. H. 172; 
 
 308 
 
CH. XV. J CONDITIONAL SALES. § 205 
 
 necessity of prepm-ing the goods for delivery which malses 
 these things conditions precedent to the vendee's liability 
 on the contract of sale, and not the obligation to do them. 
 If, therefore, the goods are actually delivered to the 
 vendee, he is liable on the contract for the price, although 
 something still remains to be done by the vendor to the 
 goods, in order to put them in shape as called for by the 
 contract.* 
 
 But the intention of the parties will always govern, if it 
 can be definitely ascertained. And if it be shown that the 
 parties intended that the vendee should acquire title to the 
 goods, before they have been delivered or prepared for 
 delivery, their intention will be carried out.^ 
 
 Fuller V. Bean, 34 N. H. 290; Ocklngton v. Rlchey, 41 N. H. 275; Sherwln 
 17. Mudge, 127 Mass. S47; Eapelyle v. Mackie, 6 Cow. 250; Keln v. Tuppler, 
 52 N. Y. 550; Nicholson v. Taylor, 31 Pa. St. 128; Hudson v. Weir, 29 
 Ala. 294; Chamblee v. McKenzie, 31 Ark. 155; Commercial Bank v. 
 Gillette, 90 lud. 268; O'Keefe v. Kellogg, 15 111. 347; Courtright v. 
 Leonard, 11 Iowa, 32; Obe v. Carson, 62 Mo. 209; Martin v. Hurlbut, 9 
 Minn. 142; Lingham v. Eggleston, 27 Mich. 324; Cunningham v. Ash- 
 brook, 20 Mo. 553; Frost v. Woodruff, 54 111. 155; Moffatt ». Green, 9 
 Ind. 198; Beller v. Block, 19 Ark. 566; Devane v. Fennell, 2 Ired. 36; 
 Nesbit V. Burry, 25 Pa. St. 208; Cutwater u. Dodge, 7 Cow. 85; Andrew v. 
 Dieterich, 14 Wend. 31; Riddle v. Varnum, 20 Pick. 280; Gllman v. Hill, 
 36 N. H. 311; Smart v. Batehelder, 57 N. H. 140; Handlette v. Tallman, 
 2 Shep. (Me.) 400. 
 
 1 See Hammond v. Anderson, 1 B. & P. N. E. 69; Mount Hope Iron 
 Co. V. Bufflngton, 103 Mass. 62; Goddard v. Brinney, 115 Mass. 450; 
 Greaves u. Hepke, 2 B. & Aid. 131; Macomber v. Parker, 13 Pick. 175; 
 Haxall^. Willis, 15 Gratt, 434; Cunningham v. Ashbrook, 20 Mo. 555. 
 In Macomber v. Parker, the court say: " Where the goods are actually 
 delivered, that shows the intention of the parties to complete the sale 
 by delivery; and the weighing or counting or measuring afterwards 
 would not be considered as any part of the contract of sale, but would 
 be taken to refer to the adjustment of the final settlement of the price. 
 The sale would be as complete as a sale upon credit before the actual 
 payment of the price." 
 
 2 Hurfe V. Hires, 40 N. J. L. 581; Graff v. Fitch, 68 III. 373; Young v. 
 Matthews, L. R. 2 C. P. 127; Turley v. Bates, 2 Hurl. & Colt. 200; Chapin 
 ■u. Potter, 1 Hilt. 366. 
 
 309 
 
§ 206 CONDITIONAL SALES. [CH. XV. 
 
 § 206. Conditions precedent to be performed by pur- 
 chaser — Prepayment as a condition. — The vesting of 
 the title to the goods in the purchaser may be made to de- 
 pend upon his performance of some condition. And if 
 that be the natm-e of the transaction, a transfer of the 
 possession before the performance of the condition does 
 not pass the title. The condition precedent, which the 
 purchaser is required to perform before acquiring the title, 
 is the payment of the price. Where that condition is ex- 
 press,, the title does not pass before payment of the price, 
 although the possession is given to the purchaser.^ But 
 there may be other conditions, which the purchaser may he 
 required to perform before acquiring title, such as the 
 
 1 Fosdlck V. Shall, 99 U. S. 250; Rogers v. Whltehouse, 71 Me. 222; 
 Holt V. Holt, 58 N. H. 276; Manwell v. Briggs, 17 Vt. 176; Burrell ». 
 Marvin, 44 Vt. 277; Sargent v. Metcalf , 5 Gray, 306 ; Salomon v. Hathaway, 
 126 Mass. 482; Brown v. Fitch, 43 Conn. 612; Herring v. Hoppock, 15 
 N. Y. 409; Ballard v. Burgett, 40 N. Y. 314; Cole v. Mann, 61 N. Y. 1; 
 Cole V. Berry, 42 N. J. L. 308; Hartley v. Decker, 89 Pa. St. 470; Leavell 
 V. Eobinson, 2 Leigh, 161; Vasser v. Buxton, 86 N.C, 335; Talmadge v. 
 Oliver, 14 S. C 522; Boyd i;. Lof ten, 34 Ga. 494 ; Ketchum.w. Brennan, 
 53 Miss. 596; Pattont). McCane, 15 B. Mon. 555; Price i). Jones, 8 Head, 
 84; Fleck v. "Warner, 25 Kan. 492; Sanders v. Keber, 28 Ohio St. 630; 
 Bradshaw v. Warner, 54 Ind. 58; Bailey c. Harris, 8 Clarke (Iowa), 331; 
 Little V. Page, 44 Mo. 412; Wrangler v. Franklin, 70 Mo. 659; Hunter v. 
 Warner, 1 Wis. 141; Putnam d. Lamphier, 36 Cal. 151; Cardinal v. Ed- 
 wards, 5 Nev. 36; Aultman v. Mallory, 5 Neb. 178; McClelland v. 
 Nichols, 24 Minn. 176; Fifleld v. Elmer, 25 Mich. 48; Ridgeway v. 
 Kennedy, 52 Mo. 24; Moseley v. Shattuck, 43 Iowa, 540 ; VanDuzorw. 
 Allen, 90 111. 499; Forrest ». Hamilton, 98 Ind. 91 ; Carroll «. Wiggins, 
 30 Ark. 402; Sumner v. McFarlan, 16 Kan. 600; Vaughns. Hopson, 10 
 Bush, 337; Christian v. Bunker, 38 Tex. 234; Dudley u. Abner, 52 Ala. 
 572; Jowers v. Blandy, 58 Ga. 379; Bennett v. Sims, 1 Eice, 421 ; Clayton 
 u. Hester, 80 N. C. 279; Walsh v. Taylor, 39 Md. 692; Enlow «. Klein, 
 79 Pa. St. 488; Boon u. Moss, 70 N. Y. 466; Austin ». Dye, 46 N. Y. 500; 
 Herring v. Willard, 2 Sandf. 418 ; Hine v. Roberts, 48 Conn. 267; Goodell 
 V. Fairbrother, 12 R. I. 233; Skelton v. Manchester, 12 R. I. 326; Benner 
 V. Puffer, 114 Mass. 376; Coghill v. Railroad, 3 Gray, 545; Root v. Lord, 
 23 Vt. 568; Weeks v. Pike, 60 N. Y. 447; Luey v. Bundy, 9 N. H. 298; 
 George v. Stubbs, 26 Me. 243. 
 310 
 
CH. XV. j CONDITIONAL SALES. § 207 
 
 giving of note and mortgage for the price/ or that a house 
 which was sold shall be removed from the premises within 
 a given time,'' or, in a deed of trust to secure payment of 
 a debt, that the owner of the property shall be given due 
 notice of the time and place of sale.' 
 
 § 207. Mutual or concurrent conditions — Sales for 
 " cash on delivery." — Unless the parties have expressly 
 agreed otherwise, the law implies that the liability of each 
 party is conditional upon the other party's performance of, 
 or readiness to perform, the contract. This is the case 
 with the contract of sale, as with other contracts. The 
 .seller cannot hold the buyer liable on the contract, unless he 
 is willing and ready to deliver the goods; and the buyer 
 cannot hold the seller liable unless he is ready and willing 
 to perform his part of the contract.* 
 
 If there is no agreement as to time or place of delivery 
 of the goods, it is presumed that the delivery is to be made 
 within a reasonable time and at the store or warehouse of 
 the seller, and the seller has only to make the goods ready 
 for delivery to the purchaser when he calls for them.^ But 
 where the seller expressly agrees to deliver the goods at a 
 future day certain, the seller must seek the buyer and 
 make a tender of the goods, although no place of delivery 
 is agreed upon.^ And so it is with the buyer's obligation 
 
 ^ Congar v. Bailroad, 17 Wis. 477; Thorpe v. Fowler, 57 Iowa, 541. 
 
 2 SliawD. Carbrey, 13 Allen, 462. 
 
 3 Heuderson v. Galloway, 8 Humph. 692. 
 
 * Dana •«. King, 2 Pick. 155; Jones v. Marsh, 22 Vt. 144; Gazley v. 
 Price, 16 Johns. 267; Williams v. Healey, 3 Deuio, 363; Campbell v. Git- 
 tings, 19 Ohio, 347; Simmons v. Green, 35 Ohio St. 104; Eobinson v. 
 Tyson, 46 Pa. St. 286; Summers v. Sleeth, 45 Ind. 598; Cornwall v. 
 Height, 8 Barb. 327; Smith v. Lewis, 26 Conn. 110; Swan ». Drury, 22 
 Pick. 486; Howe v. Huntington, 15 Me. 350. 
 
 <* Lobdell V. Hopkins, 5 Cow. 516; Phelps v. Hubbard, 51 Vt. 489; 
 Wilmouth V. Petton, 2 Bibb. 280. 
 
 ' Barr «. Myers, 3 Watts & S. 299 ; Roberts v. Beatty, 2 Pen. & Watts, 
 
 311 
 
§ 208 CONDITIONAL SALES. [CH. XV. 
 
 to pay the price. If no other express agreement is made, 
 it is i^resumed that the sale is for cash, and the seller is not 
 liable to the buyer on the contract of sale, unless tender is 
 made of the price. The payment of the price must pre- 
 cede the demand for the goods. ^ 
 
 The condition of prepayment of price is considered as 
 waived by a delivery of the goods, unless the parties have 
 expressly agreed that the title shall not pass, although the 
 possession is given to the buyer.* But if the possession is 
 obtained by the buyer with the understanding that the 
 payment of the price must follow immediately, then the 
 delivery is only conditional, and the title does not pass 
 until the price is paid.'^ 
 
 § 208, Condition as to time and place of perform- 
 ance. — If the contract of sale is made upon the condition 
 that it be performed within the time stipulated, and at 
 the place seated in the contract, the failure to perform in 
 the stipulated time and at the place appointed would oper- 
 
 63; Hopgood v. Shaw, 105 Mass. 276; Goodwin v. Holbrook, 4 Wend. 
 377. See, also, ante § 94. 
 
 1 Southwestern Freight Co. v. Plant, 45 Mo. 517; Talmage v. White, 
 35 N. Y. S. C. 219; Kelley b. Upton, 5 Duer, 336. Part payment does 
 not have the effect of paying the title. Plerson v. Hoag, 47 Barb. 243, 
 But it has been held that it is a question of fact, depending upon the in- 
 tentioHs of the parties, whether a sale for cash means a conditional sale, 
 with a reservation of the title in the vendor until the price is paid. 
 
 2 Warder v. Hoover, 51 Iowa, 491. See ante, § 85. See, also, 
 Dudley v. Sawyer, 41 N. H. 326. It seems, however, that the goods 
 themselves must be delivered, in order that the delivery may operate as 
 a waiver of the condition of prepayment. A transfer of the bill of lading 
 for the goods will not have the effect of passing the title to the vendee, 
 in the case of a cash sale, at least so far as the vendee is himself con- 
 cerned. Evansville, &c., E. R. Co. v. Erwiu, 84 Ind. 457. 
 
 3 Eeflning Co. v. Miller, 7 Phi la. 97; Harding v. Meitz, 1 Tenn. Ch. 
 610. And where goods are sold for cash, under a custom of trade that 
 "cash" means payment in ten days, it has been held that the sale is 
 conditional and the title does not pass until payment of the price. Dows 
 V. Dennistown, 28 Barb. 393. 
 
 312 
 
CH. XV. J CONDITIONAL SALES. § 209 
 
 ate as the breach of a condition precedent, which would re- 
 lieve the other party from all obligation to accept some 
 other performance of the contract. But whether such a 
 stipulation is to be treated as a condition precedent or as ti 
 collateral covenant or agreement, the breach of which simply 
 gives to the other party an action for damages, depends 
 upon the intention of the parties. The stipulation is not 
 held to be a condition, unless it is shown to have been fairly 
 understood by the parties to be an essential element in the 
 performance of the contract; ^ and the courts lean, in the 
 absence of positive proof to the contrary, to the opinion 
 that the stipulation as to time and place of pei-formance is 
 not a condition ; and its breach, therefore, does not justify 
 the refusal of a performance at a later time or in a differ- 
 ent place, but simply gives to the other party his action for 
 damages for the breach of the stipulation. ^ 
 
 § 209. Successive deliveries — Deliveries In install- 
 ments. — The contract of sale very frequently provides for 
 
 ^ 2 Schouler on Personal Property, § 289; Thompson «. Ray, 46 Ala. 
 224; Norrington v. Wright, 115 U. S. 188; BoUmau v. Burt, 61 Md. 415; 
 Curtis D. Gibney, 59 Md. 131; Catlin v. Tobias, 26 N. Y. 217; Smith o. 
 Brady, 17 N. Y. 173 ; Welsh v. Gossler, 89 N. Y. 540 ; Hill ». Blake, 97 N. Y. 
 216; Pope v. Porter, 102 N. Y. 366; Rouse v. Lewis, 2 Keyes, 352; Slater 
 V. Emerson, 19 How. 224; Jones v. United States, 96 U. S. 24; Cleveland 
 Rolling Mills V. Rhodes, 121 U. S. 255. In Woodwards. Burton, 115 
 Mass. 81, the principle was applied to a contract for the sale of a house, 
 with the understanding that it was to be removed from the land within 
 the stipulated time, and the court held the agreement to be a condition 
 precedent, and that the right to the house was forfeited by a failure to 
 remove it within the stipulated time. See, also, Holton v. Goodrich, 
 35 Vt. 19. But see, contra, DaviS v. Emery, 61 Me. 140, where the breach 
 of the stipulation as to time of removal was held to give to the seller 
 ooly his action for damages. 
 
 2 Jonassohn v. Young, 4 Best & Smith, 296; Simpson ». Crippen, L. 
 R. 8 Q. B. 14; Rogers v. Woodruff, 23 Ohio St. 632; Houck v. Miller, L. 
 R. 7 Q. B. D. 92; Blackburn v. Reilly, 47 N. J. L. 290; Pope v. Porter, 
 102N. Y. 366; Norrington o. Wright, 115 U. S. 188; Eilley u. Pope, 115 
 U. S.'213. See, also, to same effect, as to place of performance, Neill v. 
 Whitworth, L. R. 1 C. P. 684; 18 C. B. (n. s.) 435; 34 L. J. C. P. 155. 
 
 .313 
 
§ 209 CONDITIONAL SALES. [CH. XV. 
 
 delivery of the goods in installments in stated quantities 
 and at stated times, until the entire contract has been per- 
 formed ; and the question is raised, whether the failure to 
 deliver one of these installments in full accordance with the 
 terms will work such a complete forfeiture of the contract 
 as that the buyer cannot thereafter be required to accept 
 any more goods from the seller under the contract. It 
 seems to be less difficult to accede the right of absolute for- 
 feiture, where one of the installments of goods does not 
 conform in quality or kind to the terms of the contract ; 
 and it seems to be settled such a breach of the terms of the 
 contract would invariably defeat the right to a further per- 
 formance of the contract.^ But whether a failure to deliver 
 one of these installments at the time agreed upon would 
 operate as a breach of a condition to the whole contract 
 seems rather to depend upon the intention of the parties. 
 If the consequences of delay in delivery are serious, on 
 account of the rapid decline in prices, or otherwise, the 
 courts are inclined to hold the stipulation to be a condition, 
 the breach of which, in the case of any one of the install- 
 ments, would work a forfeiture of the whole contract.^ 
 And where the right .of forfeiture is recognized and exer- 
 cised for failure to make the delivery of an installment of 
 goods according to the terms of the contract, it is held that 
 ■ the seller has not the right to recover the value or price of 
 the installments, which had been previously delivered, on 
 the ground that there is but one contract to pay the whole 
 price for the full performance of the entire contract; and 
 that if the contract is broken in part,, and forfeited on 
 
 ' King Phillip's Mills c. Slater, 12 R. I. 82. 
 
 2 Norrlngton v. Wright, 115 U. S. 188; Cleveland Rolling Mills ». 
 Rhodes, 121 U. S. 255; Slater v. Emerson, 19 How. 224; Jones v. United 
 States, 96 U. S. 24; Pope v. Porter, 102 N. Y. 366; Welsh v. Gossler, 89 
 N. Y. 540; Hill v. Blake, 97 N. Y. 216; Elting Woolen Co. v. Martin, 5 
 Da'y, 417; Catlin v. Tobias, 26 N. Y. 217; Smith v. Brady, 17 N. Y. 173; 
 Bollman v. Burt, 61 Md. 416; Curtis v. Gibney, 59 Md. 131. 
 314 
 
CH. XV.] CONDITIONAL SALES. § 209 
 
 th'4.t account, there is no privity of contract to support the 
 claim for the price of the part of goods, which had been 
 delivered. 1 This is not, however, a general rule, although 
 it is in strict conformity with the common law doctrine of 
 entirety of the contract.^ Mr. Bishop introduces the moral 
 element of perseverance or willfulness into the discussion 
 of the right of recovering for the value of one's part per- 
 formance, before the breach and the rescission of the con- 
 tract for the bi each of a part,^ holding that if the breach is 
 a consequence of the perverse or willful refusal to complete 
 the performance of the contract, the party is not entitled 
 to any equitable relief, and hence he should not be entitled 
 to a recovery of the value of his part performance of the 
 contract.* But if the subsequent partial failure of per- 
 formance is the result of some mistake or unavoidable ac- 
 cident, the principles of equity would recognize the party's 
 right to recover for his part performance, notwithstanding 
 his subsequent breach of performance, and consequent re- 
 scission of the contract.^ 
 
 1 Catlin V. Tobias, 26 N. Y. 217; Smith v. Brady, 17 N. Y. 173. 
 
 2 See, generally, Cardell «. Bridge, 9 Allen, 355; Harrison v. Sale, 6 
 Sm. & M. 634; Britton v. Turner, 6 N. H. 481; Carroll v. Welch, 26 Tex. 
 147; Patrick v. Putnam, 27 Vt. 759; Veazie v. Hosmer, 11 Gray, 396; 
 Byerlee v. Mendel, 39 Iowa, 382; Wade v. Haycock, 1 Casey (Pa.), 382; 
 Lomax v. Bailey, 7 Blackf. 599; Goodwin v. Merrill, 13 Wis. 658; Hart- 
 well V. Jewett, 9 N. H. 249; Cahill B. Patterson, 30 Vt. 592; Pixler ». 
 Nichols, 8 Iowa, 106; Downey v. Burke, 23 Mo. 228; Clayton v. Blake, 
 4 Ired. 497; Bee Printing Co. u. Hichborn, 4 Allen, 63. 
 
 3 See Bishop's Contracts, §§ 1444, 1445. 
 
 * Citing Wooley v. Staley, 39 Ohio St. 354 ; Brewster v. Burnett, 125 
 Mass. 68; Lane ». Hogan, 5 Yerg. 290 ; Mayer ». New York, 63 N. Y. 455; 
 Devine v. Edwards, 87 111. 177 ; Bishop v. Brown, 51 Vt. 330 ; Derraott v. 
 Jones, 2 Wall. 1; Dula v. Cowles, 2 Jones (N. C.) 464; Lewis v. Esther, 
 2Cranch, C. C. 423; Brown v. Kimball, 12 Vt. 617; Malbou v. Birney, 1 1 
 Wis. 107; Bayard ». McLane, 3 Harr. 139; Martin v. Schoenberger, 8 
 Watts & S. 367; Niblett v. Herring, 4 Jones (N. C.) 202. 
 
 5 Mr. Bishop cites the following cases in supi)ort of this proposition: 
 Laduei;. Seymour, 2G Wend. 60; Dermott o. Jones, 2 Wall. 1; Hollin- 
 sead V. Mactier, 13 Wend. 275; Stewart v. Craig, 3 Greene (Iowa), 505; 
 
 315 
 
§ 210 CONDITIONAL SALES. [CH. XV. 
 
 There are, however, some respectable authorities, which 
 incline to hold that the failure to make a delivery of one 
 of the installments of goods does not justify the rescission of 
 the entire contract of sale ; in other words, the stipulation is 
 not a condition, but a contract, the breach of which in any part 
 simply gives to the party aggrieved his action for damages, 
 but not the right to rescind the contract, and refuse to accejjt 
 subsequent deliveries in conformity with the terms of the 
 contract.^ .But the right to rescind, on account of a partial 
 failure of delivery, will be waived or condoned, if the buyer 
 should accept any benefits under the contract, or delay the 
 exercise of his right to rescind for an unreasonable length 
 of time, after the breach of the condition.^ 
 
 § 210. Successive payments — Sales with installments 
 
 of payments. — In determining the effect of a failure to 
 make payment of one of the installments of the price, in a 
 contract which provides for the payment of the price in in- 
 stallments at stated times and in stated amounts, a somewhat 
 different test must be applied, in order that the authorities 
 may be understood and may be reconciled to each other. 
 Although there are a few cases, which the test will not sat- 
 isfy, the great bulk of the cases may be explained as fol- 
 lows. If the breach of condition of part payment is the 
 
 Thompson v. Purcell, 10 Allen, 426; Bassett v. Sanborn, 9 Cush. 68; 
 Pratt o. Law, 9 Cranch, 456; Lee v. Ashbrook, 14 Mo. 378; Lomax v. 
 Bailey, 7 Blachf. 599; Hargrave v. Conroy, 4 C. E. Greene, 281; Wade v. 
 Haycock, 1 Casey (Pa.) 382; Tunno v. Robert, 16 Fla. 188; Preston v. 
 Finney, 2 Watts & S. 53; Allen u. Mills, 4 La. An. 97; Drafer v. Randolph, 
 4 Harr. 454; Hall v. Cannon, 4 Harr. 360; Thomas v. Ellis, 4 Ala. 108,- 
 Hayward v. Leonard, 7 Pick. 181; Arthur v. Saunders, 9 Port. 626; 
 Whipple V. Dow, 2 Mass. 415; Merrill v. Ithaca, &c., R. R. Co., 16 Wend. 
 586; Dermott v. Jones, 23 How. 220. 
 
 1 See, to that effect, Lucesco Oil Co. v. Brewer, 66 Pa. St. 851 ; 30 Am. 
 Law Reg. 398, note; Blackburn v. RelUy, 47 N. J. L. 290; Morgan v. Mc- 
 Kee, 77 Pa. St. 228; Scott v. Kittaning Coal Co., 89 Pa. St. 287. 
 
 ' Maryland Fertilizing Co. u. Lorentz, 44 Md. 218; Morgan v. McKee, 
 77 Pa. St. 228; Scott v. Kittaning Coal Co., 89 Pa. St. 237. 
 316 
 
CH. XV.] CONDITIONAL SALES. § 210 
 
 result of some accident or oversight, or is attendant by 
 other facts and circumstances which are inconsistent with 
 ail intention to abandon the contract, and which incline one 
 to presume that the buyer intended to fully perform the 
 contract, then the failure to pay an installment at the agreed 
 time does not work a forfeiture of the whole contract, but 
 by tender of the future installments of payments he may 
 claim the benefits of the sale.^ But if the acts of the buyer, 
 in failing to make the payment of an installment, indicate 
 his intention to abandon the contract, as where the refusal 
 to pay is willful, and not through a misunderstanding or 
 accident, the entire contract is held to be forfeited, and the 
 seller cannot thereafter be compelled to perform the con- 
 tract.^ A refusal to pay, because of one's pecuniary in- 
 ability, if it is more or less continued, would be presumed 
 to show an intention to abandon the further performance of 
 the contract.* And the presumption of an intention to 
 jibandon the contract would become conclusive, if the failure 
 to pay an installment of the price was accompanied by a re- 
 fusal to receive and accept any more goods.* 
 
 Where the contract provides for the payment of the 
 price in installments, the title ordinarily, i.e., in the ab- 
 sence of an express agreement to the contrary, does not 
 vest in the purchaser, until the price has been paid in full 
 or the property is delivered ; " and the parties may provide 
 
 1 Mersey Steel Co. v. Naylor, 9 App. Cas. 434; Midland Railway Co. v 
 Ontario Rolling Mills, 10 Ont. App. 677; Hime v. Klasey, 9 Bradw. 166 
 Wiucliester v. Newton, 2 Allen, 492.; Gill v. Benjamin, 64 Wis. 362. 
 
 2 Steplienson v. Cady, 117 Mass. 6; Curtis v. Gibney, 69 Md. 131 
 Bradley v. King, 44 111. 389; Regg v. Moore, 110 Pa. St. 
 
 3 Stewart v. Many, 7 Bradw. 508; Branch ». Palmer, 65 Ga. 210 
 Dwinel u. Howard, 30 Me. 258; Robson u. Bolin, 27 Minn. 333; Landeche 
 ij. Sarpy, 37 La. An. 835; Reybold v. Voorhees, 30 Pa. St. 116. 
 
 -' Fletcher t). Cole, 23 Vt. 114; Haines v. Tucker, 50 N. H. 309. 
 
 " Forsyth v. Dickson, 1 Grant (Pa.), 26; Andrews v. Durant, 11 N. Y. 
 35; Williams v. Jackman, 16 Gray, 514; Green v. Hall, 1 Roust. 506; 
 Mixer v. Howarth, 21 Pick. 205; Edwards v. Elliott, 36 N. J. L. 449. See 
 
 317 
 
§ 210 CONDITIONAL SALES. [CH. XV, 
 
 that the title shall remain in the vendor, until a full pay- 
 ment of the price, notwithstanding the possession of the 
 goods is given to the purchaser.^ If the purchaser pays 
 one or more of the installments, and then makes default in 
 the subsequent payments, the consequent forfeiture of the 
 contract would also involve a forfeiture of the installments 
 of the price already paid, and the purchaser would be denied 
 the light to recover theni.^ But while this is the general 
 rule, it is now provided by statute in some of the States* 
 and held by many of the courts possessing equity powers,* 
 that the vendor is not permitted to retain more of the in- 
 stallments already paid than what is necessary to compen- 
 sate him for the damage done to the goods, and for the use 
 of the goods.® As in the case of successive deliveries, the 
 
 Wood V. Russell, 5 B. & Ad. 942 ; Clarke v. Spence, 4 Ad. & E. 448. See 
 ante, § 
 
 1 Hine v. Roberts, 48 Conn. 268; Knittel v. Cashing, 57 Tes. 354; 
 Sumner v. Cotley, 71 Mo. 121 ; Hervey v. Locomotive Works, 93 U. S. 
 664; Singer Mfg. Co. v. Graham, 8 Oreg. 17; Lucas v. Campbell, 88 111. 
 447; Singer Mfg. Co. v. Cole, 4 Lea, 439; Sage v. Sleutz, 23 Ohio St. 1; 
 Cole V. Munn, 3 Thomp. & C. 380; Giddey v. Altman, 27 Mich. 206; 
 Goldsmith v. Bryant,, 26 Wis. 34; Preston v. Whitney, 23 Mich. 260; 
 Sutton V. Campbell, 2 Thomp. & C. 595. 
 
 2 Angler v. Taunton Paper Co., 1 Gray, 621; Colcord v. McDonald, 
 128 Mass. 470; Everett v. Hall, 67 Me. 497; Duke v. Shackleford, 56 Miss. 
 552; Latham v. Sumner, 89 111. 233; Fleck v, Warner, 25 Kan. 492; 
 Whelan v. Couch, 26 Grant (Ont.), 74; Singer Mfg. Co. v. Treadway, 4 111 
 App. 57; Howe Machine Co. v. WiUie, 85 111. 833; Haviland v. Johnsoui 
 7 Daly, 297; Broven v. Haynes, 52 Me. 578; Knox v. Perkins, 15 Gray, 
 529; Sere v. McGovern, 65 Cal. 244. But see Cushman v. Jewell, 14 N. 
 Y. S. C. 525, where it is held that the vendor must give the purchaser 
 notice of the proposed forfeiture before the purchaser will lose his 
 claim to the money already paid. 
 
 5 Ohio, Act of 1885, p. 239, § 2; Rev. Stat. Mo. (1879), g 2508. 
 
 ' Preston v. Whitney, 23 Mich. 260; Hiue v. Roberts, 48 Conn. 267; 
 Minneapolis, &c., Co. v. Hally, 27 Minn. 495; Mott v. Havana Nat. Bank 
 22 Hun, 354 ; Gleason v. Knapp, 26 tJp. Can. C. P. 553 ; Ketchura v. 
 Brennan,53MiS8.596; Guilford ». McKinley, 61 Ga. 230; Third Nat. Bank 
 V. Armstrong, 25 Minn. 530; Johnson v. Whittemore, 27 Mich. 463. 470. 
 
 * The statutes of Missouri and Ohio provide that a certain percentage 
 may be retained as compensation for the use of the goods. 
 318 
 
CH. XV.] CONDITIONAL SALES. § 211 
 
 receipt of payment after default in payment of one of the 
 installments will operate as a waiver of the right of for- 
 feiture for the default; and the purchaser can claim the 
 property on tendering the full amount of the price. ^ 
 
 § 211. Notice as a condition precedent. — If the sale 
 is made to depend upon the happening of some contingent 
 event, the ordinary rule is tliat the seller must ascertain at 
 his own peril when the event happens, and tender delivery 
 promptly if he wants to hold the buyer to his contract. 
 The buyer is ordinarily not required to give the seller notice 
 of the occurrence of the contingency. ^ But the giving of 
 the notice by the buyer may be made the condition prece- 
 dent to the performance of the contract by the seller, so 
 that the seller is not required to deliver the goods, until 
 the buyer notifies him of the occurrence of the contingency. 
 This is not only the case where the parties expressly pro- 
 vide that the buyer shall notify the seller,^ but the buyer's 
 obligation to give notice may be implied from the fact th.'it 
 the occurrence of the contingent event is not equally within 
 the knowledge of both parties. If the fact or contingency 
 is peculiarily within the knowledge of the buyer, and it is 
 not equally accessible to the seller, it is presumed that the 
 parties intended that the buyer should give notice of its 
 occurrence, before he could require the seller to perform 
 the contract.* 
 
 1 Hutchings v. Munger, 41 N. Y. 165; Taylor v. Finley, 48 Vt. 78; 
 Shepard v. Cross, 33 Mich. 96 ; Blair v. Hamiltou, 48 Ind. 32 ; Cushman v. 
 Jewell, 7 Huu, 525. But see, contra, Hegler v. Eddy, 53 Cal. 597. 
 
 2 See Vyse v, Wakefield, 6 M. & W. 442; Watson v. Walker. 28 N. H. 
 491; 2 Scliouler Personal Prop., § 291. 
 
 3 See Baker D. Mair, 12 Mass. 121; Eames v. Savage, 14 Mais. 425; 
 Newcomb v. Brackett, 16 Mass. 161; Watson ». Garren, 6 Up. Can. Q. B. 
 542; Topping v. Boot, 5 Cow. 404; Sanborn u. Benedict, 78 111. 309. The 
 same thin° occurs where an option to buy or reject is given to the 
 buyer. Kirkpatrick u. Alexander, 44 Ind. 595. 
 
 « Haule V. Heming, 6 M. & W. 654; Vyse v. Wakefield, 6 M. & W. 442; 
 
 bl9 
 
§ 212 CONDITIONAL SALES. [CH. XV. 
 
 It is also the rule, that if the contract calls for the de- 
 livery of certain goods from time to time without any limit 
 being expressly provided, it is presumed that the seller is 
 authorized to supply these goods from time to time, until he 
 is notified by the buyer to discontinue the delivery of them.* 
 
 § 212. Sales dependent upon the acts of others. — Very 
 often the validity of the sale is made to depend upon the judg- 
 ment of some third person as to its quality or fitness for some 
 particular use. Until the judgment is pronounced, and com- 
 municated in some form, usually in the form of a certificate 
 of inspection, the buyer is not bound by his contract, 
 and cannot be compelled to receive the goods, or pay the 
 price. This is frequently the case in the sale of provisions, 
 where the buyer is permitted by law to require an inspection 
 of the goods by a public official, before he is bound to receive 
 and pay for the goods. ^ In the absence of fraud, the decis- 
 ion of the third person, to whose judgment the validity 
 of the sale is referred, is final and binding on the parties, 
 whether the judge be a private individual or a public official.^ 
 
 Quarles v. George, 23 Pick. 400; Tasker v. Bartlett, 5 Cush. 364; Clough 
 V. Hoffman, 5 Wend. 600; Watson v. Walker, 23 N. II. 471; Haines «. 
 Tucker, 50 N. H. 307. 
 
 i Houston, &c., E. E. Co. v. Mitchell, 38 Tex. 85; 2 Schouler on Per- 
 sonal Prop,, § 291a. 
 
 2 Gunther v. Atwell, 19 Md. 158; Heilbutt «. Hickson, L. E. 7 C. P. 
 438; Messmore v. N. Y. Shot Co., 40 N. Y. 422. The validity of fire in- 
 surances policies is often made dependent upon the procurement of a 
 certificate from some justice of the peace, the life insurance policy on 
 the physician's certificate of examination, and the building contract on 
 the architect's certificate of compliance by the contractor with the 
 specifications. See Smith ». Briggs, 8 Denio, 73; Johnson v. Phoenix 
 Ins. Co , 112 Mass. 49; Koumage v. Mechanics' Fire Ins. Co., 13 N. J. L. 
 110; Noonan v. Hartford Ins. Co., 21 Mo. 81; Scott v. Phoenix Ins. Co., 
 Stuart (Can.), 354; Inman v. Western Ins. Co., 12 Wend. 452; Protection 
 Ins. Co. V. McPherson, 5 Ind. 417; Leadbetter v. Mtaa Ins. Co., 13 Me. 
 265; Kirtland v. Moore, 40 N. J. Eq. 106. 
 
 8 Bobbins v. Clark, 129 Mass. 145; Flint v. Gibson, 106 Mass. 391; 
 Norfsinger v. Eing, 71 Mo. 149. 
 320 
 
CH. XV.] CONDITIONAL SALES. § 213 
 
 § 213. Sales on trial — Sale or return — WLat consti- 
 tutes a satisfactory sale. — Frequently goods are put into 
 the possession of the person who is proposing to buy them, 
 with the understanding that they can try the goods and if 
 they prove unsatisfactory, they may be returned, and the 
 price recovered if it has been paid. But the transaction 
 may assume one of two forms. If the understanding of the 
 parties is that the title shall remain in the vendor until 
 the goods have proven by the trial to be satisfactory 
 and the buyer has decided to keep them, this is called a 
 sale on trial, which constitutes a species of bailment, until 
 the decision to buy the goods is made, when the transaction 
 becomes a sale. 
 
 The title being during the trial in the vendor, any loss or 
 damage suffered by the property from any other cause than 
 the negligence of the prospective buyer, will fall on the 
 vendor.^ 
 
 If, on the other hand, the understanding of the parties is 
 that the title to the goods shall pass immediately to the 
 buyer, subject to the condition subsequent that, if the goods 
 do not prove satisfactory, he may return them, then the 
 transaction is called a sale or return, and any damage to the 
 property so sold will fall on the purchaser, whatever may 
 be the cause of it, and he will be precluded from relieving 
 himself of liability for the price by a return of the goods. 
 He can be compelled to pay the price, although he had not 
 completed his trial and examination of the goods. ^ 
 
 1 Hunt V. Wyman, 100 Mass. 198 ; Pitt's Son's Mfg. Co. v. Poor, 7 
 Bradw. 24; Fairfield v. Madison Mfg. Co., 38 Wis. 346; Spicljler v. 
 Marsh, 36 Md. 222; Aultman v. Theirer, 34 Iowa, 272; Kalin v. Klabunde, 
 50 Wis. 235; Prairie Farm Co. v. Taylor, 69 111. 440; Dewey «. Erie, 14 
 Pa. St. 211; Waters Heating Co. v. Mansfield, 48 Vt. 378; Mowbray v. 
 Cady, 40 Iowa, 604 ; Hickman v. Shimp, 109 Pa. St. ;6. 
 
 " Dearborn v. Turner, 16 Me. 17; Buswell v. Bicknell, 17 Me. 344; 
 Southwick V. Smith, 29 Mo. 228; Crocker u. Gullifer, 44 Me. 491; Martin 
 V. Adams, 104 Mass. 262; Stevens v. Cunningham, 3 Allen, 491; Walker 
 V. Blake, 37 Me. 373; Perkins v. Douglas, 20 Me. 317; McKinuey v. Brad- 
 
 21 321 
 
§ 213 CONDITIONAL SALES. [CH. XV. 
 
 But whether the transaction be a " sale on trial " or " a 
 sale or return," — a sale upon condition precedent, or a 
 sale upon condition subsequent — the decision not to take 
 or keep the goods must be made and communicated to the 
 seller within the time agreed upon, if the time has been 
 fixed by the contract, and if not, then in a reasonable time. 
 If the seller is not notified or the goods not returned within 
 the required time, the sale becomes absolute, and the buyer 
 becomes liable for the price.^ Where the contract does not 
 fix the time, as already stated, the option must be exercised 
 within a reasonable time.* And the question, what is a 
 reasonable time, is one of fact for the jury, to be deter- 
 mined under all the circumstances of the particular case.* 
 
 lee, 117 Mass. 321 ; Moss v. Sweet, 3 Eng. L. & E. 311 ; Hotchkiss v. Hig- 
 gins, 52 Conn. 205; Jameson b. Gregory, 4 Met. (Ky.) 363; Manny «. 
 Glendinning, 15 Wis. 50; Carter v. Wallace, 32 Hun, 384. 
 
 ' Sale on trial. Waters Heater Co. v. Mansfield, 48 Vt. 378 ; Dewey 
 V. Erie, 14 Pa. St. 211 ; Prairie Farm Co. v. Taylor, 69 111. 440; Kahn v. 
 Klabunde, 50 Wis. 235; Smalley ». Hendrickson, 29 N. J. L. 371; Aiken 
 V. Hyde, 99 Mass. 183; Gibson v. Vail, 53 Vt. 476; Aultman «. Theirer, 
 34 Iowa, 272 ; Spickler v. Marsh, 36 Md. 222 ; Fairfield v. Madison Mfg. 
 Co., 38 Wis. 346; Elphick v. Barnes, L. R. 5 C. P. D. 326; Mowbray c. 
 Cady, 40 Iowa, 604; Colton v. Wise, 7 111. App. 395; Hickman v. Shimp, 
 109 Pa. St. 16 ; Johnson u. McLane, 7 Blackf . 501 ; Dewey v. Erie Borough, 
 14 Pa. St. 211; Hall v. Merriwether, 19 Tex. 224; Humphries v. Carvalho, 
 16 East, 45; Delamater v. Chappell, 48 Md. 244; McCormick ». Basal, 50 
 Iowa, 523. Sales or return, where the goods ordinarily have to be re- 
 turned, if the buyer decides to reject them. Schlesinger v. Stratton, 9 
 K.I. 578; Mossc. Sweet, 3 Eng. L. &Eq. 311; Quinn ». Stout, 31 Mo. 160; 
 Beverly v. Lincoln Gas, &c., Co., 6 Ad. & E. 828; Bianchi ». Nash, 1 M. & 
 W. 545; Washington o. Johnson, 7 Humph 468; Hotchkiss c. Higgins, 
 52 Conn. 205; Jameson ». Gregory, 4 Met. (Ky.) 863; Moore v. Piercy, 1 
 Jones (N. C), 131; Eay v. Thompson, 12 Cush. 287; Jones ij. Wright, 71 
 111. 61. The buyer has the entire time in which to make his decision, 
 and he may fluctuate as much as he pleases during that time as long as 
 he does not communicate his decision to the seller. Beese u. Beck, 24 
 Ala. 651; Ellis v. Mortimer, 1 Bos. & P. N. R. 257; Aiken v. Hyde, 99 
 Mass. 183; Hartford Sorghum Mfg. Co. b. Brush, 43 Vt. 528. 
 
 2 Hickman v. Shimp, 109 Pa. St. 16 ; Quinn v. Stout, 31 Mo. 160 ; Spick- 
 ler V. Marsh, 36 Md. 222; Washington v. Johnson, 7 Humph. 468. 
 
 ' Washington v. Johnson, 7 Humph. 468. Fifteen years was held to 
 322 
 
CH. XV. J CONDITIONAL SALES. § 213 
 
 Whether the goods are to be returned to the seller, or a 
 simple notice of rejection sent to him, in order to termi- 
 nate the transaction, will vary with the terms of the agree- 
 ment, and with the understanding of the parties.^ But, in 
 the absence of express proof of the intentions of the par- 
 ties, the presumption is that notice is sufficient in the case 
 of " sales on trial ; " but that the return of the goods is 
 necessary in the "sales on return."^ But if, in a case 
 where a returu of the goods is required, the seller refuses 
 to receive the goods, the buyer is fully protected from 
 liability for the price and for the goods, if he notifies the 
 seller where the goods can be found. ^ 
 
 The right of rejection of the goods will also be lost, and 
 the sale become absolute, if the buyer so damages the goods, 
 while they are in his possession, that their value has been 
 materially impaired.* And where the trial of the property 
 involves a consumption of a part of it ; the buyer is only 
 justified in consuming what is necessary to the trial of the 
 goods, and if he consumes more than what is necessary, the 
 sale will become absolute, and the buyer will be liable for 
 the price. ^ 
 
 If the condition of the sale be that the property may be 
 returned, if it did not prove satisfactory to the buyer, or if 
 the buyer was not satisfied with it after trial, the condition 
 must be fully performed, i.e., the buyer must in fact be 
 satisfied with it. If the buyer expresses himself to be dis- 
 
 be an unreasonable delay in Cooper v. Carlisle, 2 Green (N. J.), 525; and 
 the time was held to be reasonable in Hall v. Meriwether, 19 Tex. 224, 
 where a cotton gin was kept from spring until October. 
 
 1 Gammon v. Abrams, 53 Wis. 323; HinchlifEe u. Barwick, L. R. 5 Ex. 
 D. 177. 
 
 2 See cases in preceding note. 
 
 3 Hall V. Mtna, Mfg. Co., 30 Iowa, 215; Padden v. Marsh, 34 Iowa, 
 522. 
 
 * Ray V. Thompson, 12 Gush. 281 ; 20 Am. Law Reg. (N. s.) 245, note. 
 
 * See Bl'iottD. Thomas, 3 M. & W. 170; Okell v. Smith, 1 Stark. 107; 
 Lucy V. Moufflet, 5 Hurl. & N. 229. 
 
 323 
 
§ 214 CONDITIONAL SALES. [CH. XV. 
 
 satisfied, it matters not how unreasonable or groundless his 
 dissatisfaction may be, he cannot be required to keep the 
 property. The buyer is not obliged to be satisfied, although 
 the property delivered conformed to his order. ^ But some 
 of the cases require that the dissatisfaction must be real, in 
 order to relieve the buyer from liability, although they 
 recognize that the dissatisfaction maybe unreasonable with- 
 out affecjting the right of rejection. ^ Some of the courts 
 also maintain that if the thing purchased on condition of 
 proving satisfactory is to be attached to a building or to 
 real estate in general, and a return of it will not place the 
 seller in statu quo, the buyer should be required to prove 
 that his objections to the thing were reasonable.^ But 
 other parallel cases do not support this distinction.* 
 
 § 214. Sale of goods to arrive. — Very often merchants 
 are desirous of maiiing a sale of goods, which they have 
 bought but which they have not yet received ; and so they 
 make the sale with the understanding that they are yet to 
 arrive. The sale may assume one of three forms: 1. It 
 may be an immediate sale and transfer of title of the 
 
 1 Browne. Foster, 113 Mass. 136; Baleski ». Clark, 44 Conn. 218; Hoff- 
 man e. Gallagher, 6 Daly, 42; Goodrich v. Van Nortwick, 48 111. 445; 
 Hartman v. Blackburn, 7 Pitt. Leg. Journal, 140; Sulsbury Mfg. Co. v. 
 Chico, 24 Fed. Rep. 893; Wood Reaping Machine Co. v. Smith, 50 Mich. 
 565; McClurei). Briggs, 58 Vt. 82; Pierce v. Cooley, 56 Mich. 552; Hal'i- 
 die V. Sutter St. R. R. Co., 63 Cal. 575; Exhaust Ventilator Co. v. Chicago 
 R. R. Co., 66 Wis. 218; McCormick Machine Co. v. Chesrown, 33 Minn. 
 32; Gray v. Central R. R. Co., 11 Hun, 70; Gibson v. Cravage, 39 Mich. 
 49; McCarren v. McNulty, 7 Gray, 139; Heron ». Davis, 8 Bosw. 336; 
 Grant v. Burch, 26 Hun, 376. 
 
 2 McClure v. Briggs, 58 Vt. 82; Hartford Mfg. Co. v. Brush, 43 Vt. 
 528; Daggett v. Johnson, 49 Vt. 345; Manny v. Glendinning, 15 Wis. 50; 
 Silsby Mfg. Co. v. Chico, 24 Fed. Rep. 893. 
 
 3 Walkers. Orange, 16 Gray, 193; Atkins v. Barnstable, 97 Mass. 428; 
 Duplex V. Safety Co. v. Garden, 101 N. Y. 387. 
 
 * Singerly v. Thayer, 108 Pa. St. 291 ; 84 Am. Law. Reg. 18, note. But 
 see, also, Veazie v. Bangor, 53 Me. 50; Bucksport R. R. Co. v. Brewer, 
 67 Me. 296. 
 
 324 
 
CH. XV. J CONDITIONAL SALES. § 214 
 
 goods, while in transit, in which case the purchaser is liable 
 for the price, whether the goods arrive or not ; for the loss 
 in transit, but after the sale, would fall upon the purchasers, 
 since the title to the goods was already in him. ^ 2. It may 
 be an executory sale, to become executed upon the arrival 
 of the goods, but upon their failure to arrive, neither party 
 is bound by the contract of sale, or liable on it for the 
 failure of performance, since the arrival of the goods was 
 the condition precedent to the liability of both vendor and 
 vendee. 3. It may be an executory sale, to be executed 
 on the arrival of the goods, coupled with a warranty on 
 the part of the vendor that the goods shall arrive and be 
 delivered in accordance with the terms of the contract. 
 The question, which of these three forms the contract for 
 the sale of goods in transit shall take, is one of fact, the . 
 answer to which depends upon the intentions of the parties, 
 as manifested by and in the express terms of the contract. 
 In the first place, the presumption of law is generally 
 against the contract being an executed sale. The contract 
 is presumed to be executory and conditional upon the 
 arrival of the goods. ^ So also is the contract presumed to 
 be executory and conditional, if the sale was of goods at 
 sea, "to be paid for on delivery."* But if the bill of 
 lading for goods was assigned by indorsement and delivery 
 to the purchaser, and the terms of the sale had been fixed, 
 as well as when there has been any other kind of assign- 
 ment of the goods by pieans of a written bill of sale, or 
 order, the contract will be held to be an immediate sale of 
 the goods, and transfer of title.* But inasmuch as this is 
 
 1 See ante, §§ 104, 106. 
 
 2 Shields v. Pettie, 2 Sandf . 262 ; 4 N. Y. 122; Benedict v. Field, 4 
 Duer, 154; 16 N. Y. 695; Russell v. Nichols, 3 Wend. 112; Lovatt ». 
 Hamilton, 5 M. & W..689; Stockdale ». Dunlop, 6 M. & W. 224; Johnson 
 D. McDonald, 9 M. &W. 600; Neldon ». Smith, 7 Vroom, 148, 154. 
 
 3 Shields v. Pettee, 2 Sandf. 262; 4 N. Y. 122. 
 
 < Alexander v. Gardner, 1 Bing. N. C. 671; 1 Scott, 630; 1 Hodges, 
 
 325 
 
§ 214 CONDITIONAL SALES. [CH. 
 
 XV. 
 
 a questipn of intention, even such facts as these just men- 
 tioned and their dependent presumption may be controlled 
 by an express statement of the intention of the parties to 
 the contrary. 
 
 It is also the presumption of the law, where a sale is 
 made of goods to arrive, that the parties intended that the 
 arrival of the goods, of the quality and quantity described 
 in the contract, should be a condition precedent to the as- 
 sumption of any obligation by either party; and if the 
 goods called for under the contract, did not arrive, neither 
 party was bound or liable on the contract, since the breach 
 of the condition avoided the contract entirely. There is 
 no warranty in such a contract that the goods shall ar- 
 rive. ^ And the same construction is placed upon the 
 ■contract, whether the sale was of goods " on arrival" or 
 " to arrive," the form of the contract being ordinarily 
 immaterial.^ But the parties may, expressly or by neces- 
 sary implication, provide that the vendor shall warrant the 
 arrival of the goods and if such an intention is shown in 
 any case, the vendor is liable on his warranty, if the goods 
 fail to arrive in accordance with the terms of the contract.' 
 But while the presumption is against the creation of a war- 
 ranty that the goods shall arrive in a sale of goods •' on 
 arrival," * and also where there is a statement in the con- 
 
 147; Stubbs v. Lund, 7 Mass. 453; Jordan v. James, 5 Ham. (Ohio) 89; 
 Gardner v. Howland, 2 Pick. 599; Pratt «. Parkman, 24 Pick. 42; Lautear 
 V. Summer, 17 Mass. 110; Howland v. Harris, 4 Mason, 497; Lee v. 
 Kimball, 45 Me. 172 ; Walter v. Ross, 2 Wash. C. C. 283 ; Caldwell v. 
 Ball, 1 T. E. 205. 
 
 » Shields v. Pettle, 2 Sandf . 262 ; 4 N. Y. 122 ; Neldon v. Smith, 36 
 N. J. L. 154; Johnson v. McDonald, 9 M. & W. 600; Hawes v. Lawrence, 
 4 Comst. 345; Boyd v. SifEkin, 2 Camp. 326; Russell v. Nichols, 3 Wend. 
 112; Benedicts. Field, 16 N.T. 595; Lovatt u. Hamilton, 5 M. &W. 639; 
 Stockdale v. Dunlop, 6 M. & W. 224. 
 
 2 Johnson v. McDonald, 9 M. & W. 600; Rogers v. Woodruff, 23 Ohio 
 St. 632, an important case. See Montgomery v. Middleton, 13 Ir. C. L. 1 73. 
 
 3 Dike V. Reitlinger, 23 Hun, 242. 
 * See supra. 
 
 326 
 
CH. XV. J CONDITIONAL SALES. § 214 
 
 tract that the goods will arrive on or before a certain date,* 
 if the contract contains a statement that the goods " are 
 now on their passage," it is presumed that the parties in- 
 tended to warrant the truth of that representation, and that 
 the condition referred only to the safe arrival of the goods. 
 The vendor would therefore be liable on his covenant, if 
 the vessel arrived and it was ascertained that the goods had 
 never been on board. ^ It is also held to be a warranty, in 
 a contract to take freight from another vessel in a foreign 
 port, that the vessel, from which the cargo was to come, 
 would be in the harbor awaiting a transfer of the cargo.* 
 Where the representation was made that the vessel had 
 sailed on a given date, it is held that it is presumed to be 
 neither a warranty nor a condition, but a representation, 
 the falsity of which does not impose any liability on the 
 vendor, unless it amounted to a case of fraud or deceit.* 
 Where the obligation to deliver the goods was absolute, 
 instead of being conditional on the arrival of the goods, 
 the vendor is not excused from the performance of his con- 
 tract by the blockade of a port, or any other inevitable 
 accident.^ 
 
 Where one makes a conditional sale of goods " on ar- 
 rival," the condition is not fully performed so as to bind 
 either party, unless the vessel contains the goods in quality 
 a,iid quantity, as called for by the contract. The vendee is 
 not obliged to receive, nor the vendor to deliver, goods of 
 a different quality or quantity.^ Where a sale is made of 
 
 1 Russell V. NlcoU, 3 Wend. 112; Alewyn v. Pryor, H. & M. 406. 
 
 2 Gorrisen v. Perrin, 2 C. B. (N. s.) 681. 
 
 ' Higgmson v. Weld, 14 Gray, 165; Splidt v. Heath, 2 Camp. 57; At- 
 kinson V. Ritchie, 10 East, 530. 
 
 * Hawesv. Lawrence, 4 N. Y. 346; Hawes v. Humble, 2 Camp. 327. 
 
 ^ Atkinson v. Ritchie, 10 East, 530; Hayward v. Scougall, 2 Camp. 56; 
 De Medelros B.Hill, 5 C. &P. 182; Spence ». Chadwlck, 10 A. & E. (N. S.) 
 517. 
 
 6 Vernede v. Weber, 1 H. & N. 311; 38 Eng. L. & E. 277. But see 
 Simond v. Braddon, 2 C. B. 824; 40 Eng. L..& Eq. 285, where there was 
 
 327 
 
§ 214 CONDITIONAL SALES. [CH. XV. 
 
 " a cargo," the entire cargo is meant, and the buyer is not 
 required to accept less.^ But when the carrying capacity 
 of the vessel is mentioned, it is considered only as a repre- 
 sentation not binding as a warranty or condition, and the 
 condition is fully performed, if the vessel arrives with as 
 large a cargo, as it could carry. ^ So, also, in order to bind 
 either party, must the goods arrive within the stipulated 
 time, if there be such a stipulation,^ and be of a merchant- 
 able quality, independent of any express representations as 
 to quality.* It is also a part of the condition that the goods 
 shall arrive on the vessel described in the contract, and is 
 not performed by the arrival of the goods on another ves- 
 sel or on a different voyage ofthe same vessel.^ So, also, 
 must the vessel arrive with the goods at the agreed port of 
 delivery. The condition is not performed by the arrival of 
 the goods at some other port, whether the delivery of the 
 goods at the other port was voluntary or through stress of 
 circumstances.® The condition is not fully performed, if 
 the vessel arrives without the goods.' But the contract is 
 fully performed if the vessel arrives at the agreed port, 
 with goods of the quality and quantity, called for by the 
 contract of sale, although they are not consigned to the 
 
 an absolute obligation or warranty to deliver the goods in quality and 
 quantity, as per contract. 
 
 1 Borrowman v. Drayton, 2 Ex. Div. 15. See Ireland v. Livingston, 
 L. R. 2 Q. B. 99; B. E. 5 Q. B. 516; L. R. 5 H. L. 395-410; Flanagan v. 
 Demarest, 3 Roberts, 173. 
 
 2 Pembroke Iron Co. v. Parsons, 5 Gray, 589. 
 
 3 Alewy V. Pryor, R. & M. 406; Russell v. Nicoll, 3 Wend. 112. 
 
 * Cleu V. McPherson, 1 Bosw. 480; Gorrisen v. Perrim, 2 C. B. (n. 
 s.) 681; Wright v. Hart, 17 Wend. 267; 18 Wend. 449; Chanter v. Hop- 
 kins, 4 M. & W. 399; Hyatt v. Boyles, 5 6. & J. 110; Hargous v. Stone, 
 1 Seld. 86. See ante, § 190. 
 
 5 Lovatt V. Hamilton, 5 M. & W. 639 ; Smith v. Meyers, L. R. 5 Q. B. 
 429; L. R. 7 Q. B. 139. But a mere misnomer in the description of the 
 vessel, will not afEect the inforcement of the contract. Smith v. Fettee, 
 70 N. Y. 13. 
 
 6 Idle V. Thornton, 3 Camp. 274. 
 ' Boyd V. SifEkin, 2 Camp. 325. 
 
 328 
 
CH. XV. J CONDITIONAL SALES. § 215 
 
 vendor. Unless the parties expressly stipulate that they 
 are consigned to him, the vendor will be bound by his con- 
 tract on the arrival of the goods, notwithstanding the fact 
 that he cannot buy any of the goods from the consignees. ^ 
 But it must not be understood from this, that the vender 
 would be liable, if goods of the same description arrived by 
 the same vessel, although they were not the goods which 
 were expected. The cases cited refer to cases of consign- 
 ments and the cargoes of chartered vessels, where the identi- 
 cal goods contracted for do arrive, but consigned to some 
 one other than the vendor. The same principle cannot be 
 applied to the miscellaneous cargoes of the great steamship 
 common carriers of the ocean and navigable rivers. 
 
 § 215. Correspondence of bulk with sample or de- 
 scription — Genuineness of commercial securities. — In 
 
 the preceding chapter on warranty^ it was explained what 
 confusion prevails in the cases as to the effect of a sale by 
 sample or by description, some of the authorities main- 
 taining that the correspondence of the bulk with sample or 
 description was a duty arising from an implied warranty 
 of the vendor, while others held that there was no warranty 
 but a condition usually precedent but sometimes subse- 
 quent,^ the breach of which prevented the transfer of title 
 to the purchaser, and the enforcement of the contract 
 against him, if it was a condition precedent; and if it was 
 a condition subsequent, it would work a forfeiture of the 
 
 1 Hibblewhite v. McMorine, 5 M. & W. 462; Fischel v. Scott, 15 C. B. 
 69; Gorrisea v. Perrin, 2 C. B. (n. s.) 681. In Mschel v. Scott, the court 
 say: "The oil is described pretty clearly; the question is, whether the 
 oil which came was ' oil expected to arrive by the Resolute.' " Maule, 
 J. "It is quite inconsistent with this plea that the oil contracted to be 
 sold did not arrive by the Resolute. The oil which was expected did ar- 
 rive. The defendants expected it to come consigned them ; but it turned 
 out that it was consigned to same one else." Jervis, C. J. 
 
 ' See ante, § 197. 
 
 ' See ante, g 117, on the effect of acceptance. 
 
 329 
 
^ 215 CONDITIONAL SALES. [CH. XV. 
 
 vendee's title. Inasmuch as all of the cases agree that the 
 want of correspondence of the bulk with sample or descrip- 
 tion operated to defeat or prevent the vesting of the title 
 to the goods, as well as to give to the vendee at his option 
 an action for damages, the conclusion was reached that the 
 implied provision for correspondence of bulk with sample 
 or description operated both as a condition and a warranty.^ 
 It will not be necessary to add any thing hero to the dis- 
 cussion given elsewhere, and it will suffice to refer here to 
 the cases, in which this provision has been held to operate 
 as a condition.^ 
 
 The same confusion prevails in the attempt to determine 
 whether the sale of a counterfeit commercial paper was 
 the breach of a condition or of a warranty, some of the 
 cases maintaining that the genuineness of such paper was a 
 condition,^ while others hold the sale of counterfeit securi- 
 ties to be the breach of a warranty.* But the true rule is 
 here, as in the case of sale by sample or by description, that 
 both ix condition and warranty are implied, so that the vendee 
 would have his election of remedy , although it does not seem 
 likely that any other remedy than repudiation of the sale 
 would prove effective in the sale of counterfeit securities. 
 
 1 See ante, § 197. 
 
 2 Lorymer v. Smith, 1 Bam. & C. 1 ; Dutchess Co. v. Harding, 49 N. 
 Y. 321; Hedstrom v. Toronto Car Wheel Co., 31 Up. Can. C. P. 425; 
 Nichols V. Godts, 10 Ex. 1; Azemar v. Casella, L. R. Q. C. P. 431; 36 L. 
 J. C. P. 124; Pennock v. Stymies, 54 Vt. 226; Wolcott v. Mount, 36 N. J. 
 L. 266; Woods v. Miller, 55 Iowa, 168; Carson v. Baillie, 19 Pa. St. 375; 
 Bannerman v. White, 10 C. B. (n. s.) 844; Grimoldby ». Wells, L. E. 10 
 C. P. 391. See Neavei). Arntz, 56 Wis. 174; Bagley?;. Cleveland Rolling 
 Mill Co., 21 Fed. Rep. 159; Jones?). George, 61 Tex. 345. And see Harley 
 V. Iron Works, 66 Cal. 238; McFarland v. Newman, 9 Watts, 65; Cary v. 
 Gruman, 4 Hill, 626. 
 
 3 Young V. Cole, 3 Bing. N. C. 724; Westropp v. Solomon, 8 C. B. 346; 
 Gompertz v. Bartlett, 2 El. & B. 849. 
 
 * See Aldrich o. Jackson, 6 R. I. 218; Merriam v. Wolcott, 3 Allen, 
 258; Wood v. Sheldon, 42 N. J. L. 421; Donaldson v. Newman, 9 Mo. 
 App. 235; Ledwich v. McKim, 53 N. Y. 307. 
 
 330 
 
CH. XV. J CONDITIONAL SALES. § 217 
 
 § 216. Remedies lor the breach of a condition. — 
 
 Where the condition is to be performed by the vendor, the 
 vendee may avoid the contract, tender a return of the 
 goods, and sue for the price, if he has paid. In any case, 
 he is relieved of all liability on the contract by his tender 
 of a return of the goods, and a notiiication of his repudia- 
 tion of the contract.^ Where the condition is to be per- 
 formed by the vendee, the vendor may avoid the contract 
 and recover the possession of the goods. ^ And if he has 
 reserved the right to retake the goods on default of the 
 condition, he may enter the buyer's premises for the pur- 
 pose of getting possession of the goods. ^ If the thing 
 which is sold upon condition is attached to a house in such 
 a way that it cannot be removed without injury to the 
 building, the remedy will be an action for the value of the 
 thing, and as security the vendor will have a lien on the 
 land for that amount.* And he also has the right to re- 
 cover damages for any injury which the buyer may have 
 done to the property while in her possession,^ 
 
 § 217. Waiver of conditions — Effect of delivery in 
 cash transactions — Effect of delay in enforcing forfeit- 
 ure. — The performance of a condition may, of course, be 
 waived by the party who has the right to enforce it, and if 
 a waiver is clearly established, the condition need not be 
 performed ; nor can the vendor, if the performance of the 
 condition devolved on the vendee, recover the property. 
 
 1 See ante, §§ 209-2U. 
 
 2 Solomon v. Hathaway, 126 Mass. 482; Keittr. Counts, 15 S. C. 49?; 
 Brown v. Haynes, 52 Me. 678. 
 
 s McClelland v. Nichols, 24 Minn. 176 ; Matthews v. Lucia, 55 Vt. 308 ; 
 Walsh V. Taylor, 39 Md. 592. But the vendor would not be permitted to 
 use force in retaking his property, although he has reserved the right of 
 entry on the vendee's premises. Van Wren v. Flynn, 34 La. An. 1158; 
 Churchill v. Hulbert, 110 Mass. 42; Drury ». Hervey, 126 Mass. 519. 
 
 * Cooper V. Cleghorn, 50 Wis. 113. 
 
 « Kent V. Buck, 45 Vt. 18. 
 
 331 
 
§ 217 CONDITIONAL SALES. [CH. XV. 
 
 Waivers may be express, or implied from the acts and 
 words of the party who is to perform the condition, and in 
 any case it is a question of fact, whether the condition is 
 waived.^ But the act of waiver is an intentional act, so 
 that the nets and words must show an intention to waive 
 the right of enforcing the condition, in order to constitute 
 a waiver.* And although mere delay or negligence in the 
 enforcement of the condition does not in itself amount to 
 a waiver,^ it is a fact from which, if it be not explained by 
 the proof of facts which makes the delay reasonable or 
 inevitable,* waiver may be inferred.^ 
 
 The most common case of implied waiver of the condi- 
 tion is in the case of a cash sale in which the condition is 
 that the price must be paid on or before delivery. If the 
 goods are delivered without payment, it is presumed that 
 the condition precedent was waived, and the title passes 
 absolutely to the vendee on delivery of the goods.® But 
 this presumption is not conclusive, and may be rebutted by 
 the proof of a mercantile custom to enforce the condition 
 notwithstanding the delivery,' or by the inference of a con- 
 
 1 Fishback v. Van Dusen, 33 Minn. 118. 
 
 2 Fishback v. Van Dusen, 33 Minn. 117; Fuller v. Bean, 32 N. H. 290; 
 Farlow V. Ellis, 15 Gray, 229; Hammett v. Linnemann, 48 N. Y. 399; 
 Smith V. Dennie, 6 Pick. 262. 
 
 3 Fishback v. Van Dusen, 33 Minn. 117; Farlow v. Ellis, 15 Gray, 229. 
 
 < Stone V. Perry, 60 Me. 48; Whitney v. Eaton, 15 Gray, 225; Gold- 
 smith V. Bryant, 26 "Wis. 34; Hirschorn v. Canney, 98 Mass. 148; Scud- 
 der». Bradbury, 106 Mass. 422. 
 
 5 Smith V. Dennis, 6 Pick. i262; Hutchings ». Munger, 41 N. Y. 155; 
 Fishljack v. Van Dusen, 33 Minn. 111.. See Mixer v. Cook, 31 Me. 340; 
 Scudder v. Bradbury, 106 Mass. 427; Goldsmith v. Bryant, 26 Wis. 34; 
 Bowen v. Burk, 13 Pa. St. 146. 
 
 « Fishback v. Van Dusen, 33 Minn. Ill; Smith v. Lynes, 5 N. Y. 41; 
 Hammett v. Linneman, 48 N. Y. 399; Farlow v. Ellis, 15 Gray, 229; Scud- 
 der ». Bradbury, 106 Mass. 422; Upton v. Sturbridge Cotton Mills, 111 
 Mass. 446; Caldwell v. Bartlett, 3 Duer, 341; Marston v. Baldwin, 17 
 Mass. 606; Pitts v. Owen, 9 Wis. 152; Hennequin v. Sands, 26 Wend. 640. 
 
 ' Farlow ». Ellis, 15 Gray, 229; Banendahl v. Horr, 7 Blatchf. C. C, 
 548 ; Fleeman v. McKean, 26 Barb. 474. 
 332 
 
CH. XV. J CONDITIONAL SALES. § 218 
 
 trary intention from facts and words, accompanying the 
 delivery.^ And if the goods are delivered with the under- 
 standing that the purchaser is to make an immediate pay- 
 ment, the condition is not waived by the delivery, and the 
 vendor may regain the goods, if the vendee refuses or 
 fails to pay the price.'' 
 
 The right of forfeiture for one breach of a condition, 
 which is performable in installments, is always waived by 
 the subsequent acceptance of performance of the condition. 
 And if the condition be the prepayment of the price, the 
 buyer is under these circumstances entitled to the posses- 
 sion and title of the goods when he tenders payment of the 
 whole price. ^ 
 
 The mere mental determination to waive the performance 
 of the condition will, if uncommunicated by acts or words, 
 not constitute a waiver.* 
 
 § 218. Impossibility of perfopmance — Illegality of con- 
 dition — Obstruction of performance by other party. — 
 
 If it is impossible in the legal sense to perform the con- 
 dition, it will have the same effect as if it were no condition 
 at all, and the parties will be left, in respect to the goods 
 sold upon condition, in the same state in which they 
 are found independently of the condition. If the condition 
 is subsequent, and the vendee has taken the title subject to 
 forfeiture for the breach of the condition, the impossibility 
 of performance will convert his title into an absolute one, 
 by the virtual removal of the condition fi-om it.° But if the 
 
 1 Farlow V. Ellis, 15 Gray, 229; Seed v. Lord, 66 Me. 580; Fisliback 
 V. Van Dusen, 33 Minn. 111. 
 
 2 Buseey v. Barrett, 9 M. & W. 312; Kenney v. Ingalls, 126 Mass. 488. 
 See ante, § 86. 
 
 s Hutchings v. Hunger, 41 N. Y. 155. And see, also, Cushman v. 
 Jewell, 7 Hun, 625; Blair v. Hamilton, 48 Ind. 32; Taylor v. Finley, 48 
 Vt. 78. See ante, §§ 209, 210. 
 
 ' Maxwell ». Brlggs, 17 Vt. 176. 
 
 ^ Co. Lit. 206; Taylor o. Mason, 9 Wheat. 325; Van Home's Lessee 
 
 333 
 
^ ll8 CONDITIONAL SALES. [CH. XV. 
 
 condition is precedent, and the terms of the sale therefore 
 provide that the title shall not pass to the vendee, but re- 
 main in the vendor until the performance of the condition, 
 since there cannot be under the contract any trsinsfer of 
 title to the vendee independently of the performance of the 
 condition, the impossibility of performance will leave the 
 title to the goods in tlie vendor, and does not differ in its 
 effect in this respect from inexcusable non-performance of 
 the condition.* 
 
 But in order that the impossibility of performance may 
 release the party obligor from the condition, it must be an 
 inherent impossibility and not a mere personal disability. 
 For example, want of means with which to pay the price 
 is a disability and not an inherent impossibility. If there 
 is no express reservation of release from the condition on 
 account of personal disability, if the thing is not inherently 
 impossible, the party will be bound by bis condition, 
 although its performance will be a very serious hardship 
 and burden to him. ^ But it is not every general im- 
 possibility which the courts will hold to be sufficient to re- 
 lieve the party from his obligation of performance. It is 
 very difficult to lay down any very general rule, whereby 
 to determine what kinds of impossibility will be suffici<^nt 
 to waive the performance of a condition ; but an attempt 
 
 V. Dorrance, 2 Dall. 317; Mizell v. Burnett, 4 Jones, L. 249; Martin v. 
 Ballou, 13 Barb. 119. These cases are from the law of real property, 
 but the same principle applies to conditional sales of both real and per- 
 sonal property. 
 
 1 Co. Lit. 206a; Walker's Am. Law, 298; Brandon v. Robinson, 1» 
 Ves. 429; Bradley v. Peixoto, 3 Ves. 324; Blackstone Bank v. Davis, 12 
 Pick. 42; Hughes v. Edwards, 9 Wheat. 489; Badlam v. Tucker, 1 Pick. 
 284; Merrill v. Emery, 10 Pick. 507; Taylor v. Sulton, 15 Ga. 103; Jones 
 V. Doe, 2 111. 276 ; Gadberry v. Sheppard, 27 Miss. 203. These cases are 
 all taken from the law of real property. 
 
 2 Oakley v. Morton, 11 N. Y. 25; Booth v. Spuyten Duyvil Rolling 
 Mill, 60 N. Y. 487; Smoot's Case, 15 Vail. 36 ; James v. Morgan, 1 Lev. 
 Ill; Thornburg v. Whitacre, 2 Ld. Raym. 1164; Kearon v. Pearson, 7 
 Hurl. &N. 386. 
 
 334 
 
CH. XV. j CONDITIONAL SALES. § 218 
 
 will be made to enumerate the cases in which the impossi- 
 bility of performance is a good defense to an action on the 
 condition. 
 
 In the first place, if the impossibility arises from a pro- 
 nibition of the law ; or if, in other words, the condition 
 calls for the doing of an illegal act, it is invalid, and the 
 performance of it cannot be required. ^ The performance 
 of the condition is ali^o excused, if its performance has 
 been prevented by the obstruction of the other party to 
 the contract,^ by the subsequent destruction of the subject- 
 matter of the condition, ^ by the sickness of the party who 
 was to perform the condition, where the performance in- 
 volves the personal skill of that particular individual.* But 
 in all of these cases there is an implied counter condition 
 against liability for non-performance of the ,condition. 
 And the cases seem to hold that where no counter condition 
 is implied by law, impossibility of performance does not 
 constitute a defense to an action for the breach of the con- 
 dition, in the absence of an express limitation of liability.^ 
 
 1 Bailey v. De Crespiany, L. R. 4 Q. B. 180; Newby v. Sharp, L. E. & 
 Ch. D. 39. See ^os«, Chap. XX., on illegal contracts. 
 
 2 Lone V. Dolger, 6 Roberts, 256; Wolf v. Marsh, 54 Cal. 228 ; Bolton 
 V. Riddle, 35 Mich. 13; Sulliugs v. Goodyear Dental Co., 36 Mich. 313; 
 United States v. Peck, 102 U. S. 64; Ketchum v. Zeilsdorfe,' 26 Wis. 514; 
 Fleming v. Gilbert, 3 Johns. 528. 
 
 3 Dexter v. Norton, 47 N. Y. 62 ; Gould v. Murch, 70 Me. 288; Thomp- 
 son i;. Gould, 20 Pick. 139; Wells v. Calnan, 107 Mass. 514; Thomas v. 
 Knowles, 128 Mass. 22. 
 
 * Eenton v. Clark, 11 Vt. 563; Dickinson v. Calahan, 19 Pa. St. 227; 
 Caden v. Farwell, 98 Mass. 137; Dickey v. Linscott, 20 Me. 453; Knight 
 V. Bean, 22 Me. 536; Fuller v. Brown, 11 Met. 440. 
 
 5 Eddy V. Clement, 38 Vt. 486, where a sa:e of lumber within a stated 
 time, became unperf ormable within the time in consequence of a drought, 
 which stopped the running of all the sawmills; Harmony ». Bingham, 
 12 N. Y. 99, where the contract to carry goods from New York to Mis- 
 souri within 26 days, became impossible by an unexpected freshet. See, 
 also, to same effect, Bacon v. Cobb, 45 111. 47; Tompkins v. Dudley, 25 
 N. y. 272; School Trustees v. Bennett, 27 N. J. L. 514; Stees v. Leonard,. 
 
 335 
 
§ 219 CONDITIONAL SALES. [CH. XV. 
 
 § 219. Equitable relief against forfeiture. — As a gen- 
 eral rule, equity will neither relieve against, nor enforce, a 
 forfeiture for the breach of a condition. It simply leaves 
 the parties to their remedies at law. Where the breach is 
 the result of an unlocked for accident, and where the dam- 
 ages resulting therefrom can be accurately estimated by the 
 court, as where the condition calls for the payment of a 
 sum of money at a particular time — it may be a debt or it 
 may be a gift or a rent charge, equity will prevent a for- 
 feiture and decree, instead thereof, as compensation in 
 damages, the payment of the sum of money together with 
 interest for the time which has elapsed. ^ But if the con- 
 dition be some act, collateral to the grant, and one which 
 cannot be estimated in damages, or where the breach is not 
 the result of inevitable accident, but is willfully or negli- 
 gently committed, equity will not interfere.^ 
 
 20 Minn. 494; Gilpins r. Consequa, 1 Pet. C. C. 86; Dermotti). Jones, 2 
 Wall. 1; School Dist. v. Dauchy, 26 Conn. 530; Adams v. Nichols, 19 
 Pick. 275. 
 
 1 The following cases are taken from the law of real property, but the 
 principle is the same, whether the condition is annexed to real or per- 
 sonal property. Goodtitle u. Holdfast, 2 Strange, 900; Hill i;. Barclay, 
 18 Ves. £6; Stone ». Ellis, 9 Cush. 95; Atkins v. Chilson, 11 Met. 112; 
 Bethlehem v. Annis, 40 N. H. 34; Skinner v. Dayton, 2 Johns. Ch. 526; 
 Williams ?;. 'Augell, 7 E. I. 152; Beatey v. Harkey, 2 Smed. & M. 563; 
 Warner v. Bennett, 31 Conn. 478; City Bank v. Smith, 3 Gill & J. 265; 
 Hancock v. Carlton, 6 Gray, 39. 
 
 2 The following cases are from law of real property: Hill v. Barclay, 
 18 "Ves. 56; Elliott v. Turner, 13 Sim. Ch. 485; Reynolds v. Pitt, 2 Price, 
 212; Henry i;. Tupper, 29 Vt. 56; Bacon v. Huntington, 14 Conn. 92; Liv- 
 ingston V. Thompkins, 4 Johns. Ch. 431 ; City Bank v. Smith, 3 Gill & J. 
 265; Baxter v. Lansing, 7 Paige Ch. 350; Skinner v. Dayton, 2 Johns. Ch. 
 626; Dunkley v. Adams, 20 Vt. 415; Hancock v. Carlton, 6 Gray, 39; 
 Wafer v. Mocato, 9 Mod. 112; Descarlett v. Dennett, 9 Mod. 22. 
 
 336 
 
CHAPTEK XVI. 
 
 CHATTEL MORTGAGES. 
 
 Section 221. Chattel mortgages defined — Conflict of common law and 
 equitable theories — Equity of redemption. 
 
 222. Conditional transfer of title essential to a chattel mort- 
 
 gage — Mortgage distinguished from a lien. 
 
 223. Mortgages distinguished from pledges. 
 
 224. Chattel mortgages distinguished from conditional sales, 
 
 with the right to repurchase. 
 
 225. A parol chattel mortgage, when valid. 
 
 226. Form of the mortgage. 
 
 227. Separate execution of the defeasance. 
 
 228. Parol defeasance when enforcible. 
 
 229. Who may make a chattel mortgage — Parties under disa- 
 
 bility. 
 
 230. What may be mortgaged — Mortgage of fixtures. 
 
 231. Can a chattel mortgage cover after-acquired property. 
 
 232. How far mortgage of after-acquired property is invalid — 
 
 The mortgage in equity. 
 
 233. Description of property. 
 
 234. Description of the debt — What is :i sufiicieut indebted- 
 
 ness. 
 
 235. Date of the mortgage 
 
 236. Formality of execution — Signing and sealing. 
 
 237. Delivery and acceptance of .mortgage. 
 
 238. Delivery and possession of mortgaged chattels. 
 
 239. The general provisions of the recording law. 
 
 240. The effect of recording a mortgage. 
 
 241. The right of possession of mortgaged chattels. 
 
 242. The right to profits. 
 
 243. Mortgagor's right to sell the mortgaged property. 
 
 244. Mortgagor's power to create superior liens. 
 
 245. Assignment of the mortgage. 
 
 246. Effect of tender and payment on mortgage. 
 
 247. The mortgagor's right of redemption. 
 
 248. The mortgagee's right of possession after forfeiture. 
 
 249. Foreclosure of the mortgagor's equity of redemption in 
 
 equity and at law. 
 
 250. Foreclosure uuder power of sale, 
 
 22 337 
 
§ 221 CHATTEL MORTGAGES. [CH. XVI. 
 
 § 221. Chattel mortgage defined — Conflict of common 
 law and equitable theories — Equity of redemption. — 
 
 A mortgage of personal property, according to the common 
 law, is a sale or transfer of the title to the property upon 
 the condition that if a debt of the grantor is paid when it 
 falls due, the sale will become void and the title revert, 
 otherwise to remain in full force. Upon the breach of the 
 condition, tho title becomes absolute in the grantee. ^ The 
 chattel mortgage, therefore, is nothing more than a condi- 
 tional sale, in which the condition is the payment of a debt. 
 For this reason, no work on the law of sales can be consid- 
 ered complete without including a full discussion of the law 
 of chattel mortgages.^ 
 
 If the mortgagor of a common-law mortgage, of real as 
 well as of personal property, failed to perform the condi- 
 tion at the agreed time, the title to the property became 
 absolute in the mortgagee, even though the estate may have 
 been worth much more than the mortgage debt.^ There 
 was no remedy by which the mortgagor could enforce the 
 acceptance of payment after the breach of the condition, 
 even where his failure arose from some accident or unavoid- 
 ab'e delay, or where the payment of the, debt with interest 
 to date of the tender of payment would do no injury to the 
 mortgagee. This rigorous rule of the common law did not 
 fail to be productive of great injustice in many instances, 
 and like all cases of bdrdships resulting from the technical- 
 ity of the common law it attracted the attention of the 
 Court of Chancery. A long cpntest ensued between these 
 courts from the time of the Magna Gharta until the reign of 
 
 1 Parshall v. Eggert, 52 Barb. 367; Porter v. Parmly, 43 How. Pr. 445; 
 34 N. Y. S. C. 398; Tompkins v. Batie, 11 Neb. 147, 151; Miner v. Jud- 
 son, 2 Hun, 441 ; Mowry v. Wood, 12 Wis. 413. 
 
 2 In all other treatises on sales, this Important branch of the subject 
 has been omitted. 
 
 3 Fay V. Cheney, 14 Pick. 399; Wood v. Trask, 7 Wis. 506; Brighamc. 
 Winchester, 1 Met. 390; Wade's Case, 6 Eep. 115. 
 
 338 
 
Ca. XVr.J CHATTEL MORTGAGES. § 221 
 
 James I., when chancery acquired Jurisdiction over ques- 
 tions arising out of mortgages, and decreed that the mort- 
 gagor may become entitled to redeem his property, after 
 condition brolten, by the payment of tlie debt and interest, 
 and in the reign of Charles I., the law of mortgages was 
 firmly established as a branch, of equity jurisprudence. ^ 
 This right of the mortgagor to redeem the property after 
 the breach of the condition was recognized only in a court 
 of equity. The legal title, as viewed from die legal stand- 
 point, was still considered to be absolute in the mortgagee, 
 and discharged of all rights of the mortgagor in and to the 
 property. The right to redeem was therefore no legal 
 right. Tt was simply an equity, and hence was called the 
 Equity of Repemption.^ 
 
 As a result of this equitable jurisdiction, mortgages, both 
 real and personal, assumed in equity a different character 
 from what they had in law. Equity seized hold of the 
 real intention of the parties and construed the mortgage to 
 have only the effect of a lien, instead of being a conditional 
 sale, whereby a defeasible title to the property became 
 vested in the grantee. The purposes of the parties are 
 fully carried out under this theory of a lien, while the hai-d- 
 ships of the common law forfeiture for the breach of the 
 condition are avoided. Equity treated a mortgage, there- 
 fore, as a lien, instead of a conditional sale. This is neces- 
 sarily involved in a recognition of the right of redemption.^ 
 
 1 1 Spence Eq. Jur. 603; Jones on Mortg., § 6; How v. Vigures, 1 Eep. 
 In CI.. 32; Emanuel College a. Evans, 1 Bep. In Ch. 18; Roscarrick «. 
 Barton, 1 Cas. in Ch. 217; Casborne i). Scarfe, 1 Atk. 603; Willette w. 
 Winnelly, 1 Vern. 488; Price v. Perrie, 2 Freem. 258. 
 
 => See post, § 247. 
 
 '> Flanders v. Chamberlain, 24 Mich. 305, 313; Davis v. Hubbard, 38 
 Ala. 185,189; Sidener v. Bible, 43 Ind. 230; Wood.ward ». Wilcox, 27 
 Ind. 207; Blakemore v. Taber, 22 Ind. 466; Tritipo v. Edwards, 85 Ind. 
 467; Broadhead v. McKay, 46 Ind. 595; Evans v. Merriken, 8 Gill & J. 
 .'iO; Headley v. Goundray, 41 Barb. 282; Jackson v. Willard, 4 Johns. 41; 
 iCinna v. Smith, 2 Green. Ch. 14; Bunyan o. Mersereau, 11 Johns. 534; 
 
 339 
 
§ 221 CHATTEL MORTGAGES. [cH. XVI. 
 
 But, at this point, in the development of the law, chattel 
 mortgages and the mortgages of real property part 
 company. As soon as equity assumed jurisdiction over 
 mortgages, it began to exert a potent influence over the 
 development of the law in respect to the mortgages of real 
 property, and has more or less superseded the common-law 
 theories in respect to the character of tlie real estate mort- 
 gage and the rights and interests of the mortgagor and 
 mortgagee, so that the incidents of the real estate mortgage, 
 as unfolded by the modern law of mortgages, are every- 
 where more in harmony with the equitable lien theory than 
 with the common-law theory of an estate upon condition,^ 
 But for some inexplicable reason, — unless it be that chattel 
 mortgages, until recently, have been comparatively rare, 
 and hence the same opportunity has not been present for a 
 modification of their legal character through the influence 
 of the equitable doctrines* — the same radical variation 
 from the common-law definition of a mortgage is not to be 
 noticed in the case of a chattel mortgage. Although the 
 right of redenfpiion after condition brokein is conceded to 
 the mortgagor of a chattel mortgage, it is, in the absence 
 of statute, strictly an equitable remedy, not recognized in 
 a court of law.^ After condition broken, no other right 
 than the right of redemption is recognized as belonging to 
 the mortgagor,^ and the universal judicial opinion is that, in 
 
 Eaton V. Whiting, 3 Pick. 484 ; Anderson v. Baumgartner, 27 Mo. 80 ; Rag- 
 land V. Justices, 10 Ga. 65; Hannah v. Carrington, 18 Ark. 85; Matthews 
 V. Wallwyn, 4 Ves. 118; 4 Kent's Com. 138; Tlmms v. Shannon, 19 Md. 
 296; McMillan v. Richards, 9 Cal. 365; Myers v. White, 1 Eawle, 353; 
 Whitney II. French, 25 Vt. 663; Ellison v. Daniels, 11 N. H. 280; Deedly 
 V. Cadwell, 19 Conn. 218; Hughes v. Edwards, 9 Wheat. 500; Creen v. 
 Hart, 1 Johns. 580. 
 
 1 Tiedeman on Real Prop., § 301. 
 
 2 Evans v. Merriken, 8 Gill & J. 39; Wood v. Dudley, 8 Vt. 430 
 Charter v. Stevens, 3 Denlo, 33; Bunacleugh v. Poolman, 3 Daly, 236 
 Hulson V. Walter, 34 How. Pr. 385; Porter v. Parmly, 43 How. Pr. 445 
 34 N. Y. S. C 398. 
 
 a Boyd v. Beandin, 54 Wis, 193, 198; Leach v. Kimball, 34 N. H. 
 340 
 
CH. XVI.J CHATTEL MOKTGAGES. § 221 
 
 law, the title of the mortgagee to the goods becomes abso- 
 lute upon the breach of the condition, subject only to the 
 mortgagor's right of redemption.^ The only apparent 
 exceptions to this general rule seem to be found in Michigan 
 and Oregon, where the chattel mortgage is treated as a lien, 
 and the title is not held to become absolute in the mort- 
 gagee upon breach of the condition as at common law.^ 
 The mortgagor's right of redemption is the chief distinc- 
 tion between the chattel mortgage and the ordinary condi- 
 tional sale/ 
 
 1 Langdon v. Buel, 9 Wend. 80; AcWey v. Finch, 7 Cow. 290; Fox v. 
 Burns, 12 Barb. 677; Byron v. May, 2 Chaud. 103; Anderson v. Hunn, 5 
 Hun, 79; Fuller v. Acker, 1 Hill, 473; Flanders v. Thomas, 12 Wis. 410; 
 Talman v. Smith, 39 Barb. 390; Butler v. Miller, 1 N. Y. 496; Brown v. 
 Bement, 8 Johns. 96; Brown v. Lipscomb, 9 Port. (Ala.) 472; Heyland v. 
 Badger, 35 Cal. 404; Wright v. Ross, 36 Cal. 414; Ehines i). Phelps, 3 
 Gilm. 455; Constant v. Matteson, 22 111. 546; Simmons v. Jenkins, 76 111. 
 479 ; Pike v. Colvin, 67 111. 227 ; Bean v. Barney, 10 Iowa, 498 ; Winchester v. 
 Ball, 54 Me. 558; Merchant's Nat. Bank c. McLaughlin, 1 McCrary, 258; 2 
 Fed. Rep. 128; Thornhill u. Gilmer, 4 Smed. ^ M. 153; Bowens ». Benson, 
 57 Mo. 26; Leach v. Kimball, 34 N. H. 568; Woodside v. Adams, 40 N. J. 
 L. 417, 427; Patchin v. Pierce, 12 Wend. 61; 1 Hill, 473; Moody t;. Hasel- 
 den, 1 S. C. 129; Nichols v. W>.bster, 1 Chandl. 203; Musgat v. Pumpelly, 
 46 Wis. 660; Smith v. Coolbaugh, 21 Wis. 427; Lowe v. Wine, 13 N. W. 
 Rep. 892 (1882) Wis. ; Smith v. Koust, 50 Wis. 360; Smith v. Phillips, 47 
 Wis. 202 ; Blodgett v. Blodgett, 48 Vt. 32 ; Hulsen v. Walter, 34 How. Pr. 
 385 ; Hall v. Snowhill, 2 Green (N. J.) 8 ; Bryant v. Carson River Lum- 
 bering Co., 3 Nev. 313; Robinson v. Campbell, 8 Mo. 365; s. c. 615; Vol- 
 ney Stamps v. Gilman, 43 Miss. 456; Flanders v. Barstow, 18 Me. 357; 
 Brown v. Phillips, 3 Bush, 656; Fikes v. Manchester, 43 111. 379; Durfee 
 V. Grinnell, 69 111. 371; McConnell v. People, 84 111. 583; Larmon v. Car- 
 penter, 70 111. 549; In re Haake, 2 Sawy. 231 ; Moore v. Murdock, 26 Cal. 
 514; Mervine v. White, 50 Ala. 388. And where the debt is payable in 
 installments, default in the payment of the first installment will cause the 
 title to become absolute in the mortgagee. Flanders v. Barstow, 18 Me. 
 357; Halstead v. Swartz, 1 T. & C. (N. Y.) 659; Pulver v. Richardson, 3 
 T. & C. 436; Burton v. Tannehill, 6 Blackf. 470; Murray v. Erskine, 109 
 Mass. 597. 
 
 2 Kohl o. Lynn, 34 Mich. 360; Lucking v. Wesson, 25 Mich. 443; 
 Gary v. Hewitt, 26 Mich. 228 ; Baxter ». Spencer, 33 Mich. 325 ; Chapman 
 V. State, 5 Orcg. 432. 
 
 s See pose, § 247. 
 
 341 
 
§ 222 CHATTEL MORTGAGES. [CH. XVI. 
 
 § 222. Conditional transfer of title essential to a chat- 
 tel mortgage — Mortgage distinguished from a lien. — An 
 
 absolute essential of a chattel mortgage is an immediate 
 transfer of title upon condition of defeasance upon pay- 
 ment of the debt to secure which the mortgage was given. 
 In other words, the transaction must have the characteris- 
 tic of a sale upon condition subsequent. There is scarcely 
 any limit to the informality in the execution of the mort- 
 gage, any instrument, which indicates the intention to 
 transfer a title to the goods subject to defeasance, biiing 
 held to be a good chattel mortgage.^ But if the instrument 
 does not operate as a grant upon condition, it is not a 
 mortgage at common law.^ If possession is delivered, it 
 may operate as a pledge.^ If neither possession nor title 
 is transferred, but a power to sell the goods on default of 
 payment of the debt is given, it will operate as the grant 
 of a naked power of sale, which only binds the property 
 and transfers the title when the sale is made.* And where 
 words are used, which indicate an intention to create a lieu 
 on the property, but the words used cannot be construed to 
 require or call for the transfer of title to the goods, it will 
 operate as a lien and be enforced as such in a court of 
 equity, or in a court having equitable jurisdiction.^ But 
 
 1 Farmers', &c., Bank v. Lang, 87 N. Y. 209; Bunacleugh v. Poolman, 
 .S Daly, 236; Fowler v. Stoneum, 11 Tex. 478; Hart «. Burton, 7 J. J. 
 Marsh. 322; McKnlght v. Gordon, 13 Rich. Eq. 221 ; Bissell v. Hopkins, 
 3 Cow. 166; Ross v. Ross, 21 Ala. 332; Moore v. Murdock, 26 Cal. 514; 
 Ford V. Ransom, 39 How. Pr. 429; Joyneru. Vincent, 4 D. & B. (N. C.) 
 L.512;Bartels». Harris, 4Me. 146; Barfleld D.Cole, 4 Sneed, 465; Gififord 
 V. Ford, 5 Vt. 532; Blodgett v. Blodgett, 48 Vt. 32; Cooper w. Brock, 41 
 Mich. 488; Musgat v. Pumpelly, 46 Wis. 660; McFadden v. Turner, 3 
 Jones (Ijf. C.) L. 481. See also post, § 226. 
 
 2 Parshall «. Eggart, 62 Barb. 367. 
 
 3 See post, § 223. 
 
 * Neidig v. Eifler, 18 Abb. Pr. 353; Bousey v. Amee, 8 Pick. 236; Bar- 
 nett V. Mason, 7 Ark. 253; McGriff v. Porter, 5 Fla. 373; Holmes v. Hall, 
 8 Mich. 66; Parshall v. Eggart, 52 Barb. ,367. 
 ' Sawyer u. Fisher, 32 Me. 28; Shaw v. Wilshire, 65 Me. 485; Metcalfe 
 342 
 
CH. XVI. J CHATTKL MORTGAGES. § 223 
 
 the transaction must be something more than an executory 
 agreement to give a mortgage or lien, in order that it may 
 in equity operate as a lien or mortgage, as against creditors 
 and subsequent purchasers.^ 
 
 But it must be observed that this distinction between a 
 lien and a mortgage only obtains where the common-law, 
 notion of the character of a chattel mortgage obtains and 
 is recognized. In a court of equity, therefore, where the 
 mortgage is held to have the characteristics of a lien in 
 every respect, the distinction disappears altogether, and 
 we find that the intention to make a mortgage will be 
 effectuated in equity, although the parties did not employ 
 words of conveyance in their instruments of writing.^ 
 And inasmuch as courts of law and of equity have been 
 amalgamated in many of the States, we find the same view 
 often taken of an instrument by a court that does not dis- 
 tinctly appearto have equity powers.^ 
 
 § 223. Mortgages distinguished from pledges. — Mort- 
 gages differ from pledges in two important respects : First, 
 in that the mortgage involves a conditional transfer of the 
 title to the goods to the mortgagee, whereas the pledgee 
 
 V. Fosdick, 23 Ohio St. 114; Barnett v. Mason, 7 Ark. 253; Bousey ». 
 Amee, 8 Pick. 236; Groton Mfg. Co. y. Gardiner, 11 E. I. 626; Dalton u. 
 Landahn, 27 Mich. 529; Polk ». Foster, 7 Baxt. 98; Goddard v. Coe, 55 
 Me. 385; Crane v. Pearson, 49 Me. 97; Gushee v. Robinson, 40 Me. 412. 
 
 1 Piatt V. Stewart, 13 Blatchf. 481 ; Newsom v. Beard, 45 Tex. 151. 
 
 2 'Whiting V. Eichelberger, 16 Iowa, 422; Evington v. Smith, 66 Ala. 
 393. 
 
 3 Ellington v. Charleston, 51 Ala. 166; Evington u. Smith, 66 Ala. 398; 
 De Leon v. Higuera, 15 Cal. 483; Nichols v. Hampton, 46 Ga. 253; Dun- 
 ning V. Stearns, 9 Barb. 630; Talmadge v. Oliver, 14 S. C. 522; Langdon 
 V. Buel, 9 Wend. 80; Johnson v. Crofoot, 53 Barb. 574; 37 How. Pr. 59; 
 Thompson v. Blanchard, 4N. Y. 303; Wright v. Bircher, 5 Mo. App. 322; 
 s. c. 72 Mo. 179 ; Weed v. Standley, 12 Fla. 166 ; Whiting v. Eichelberger, 
 16 Iowa, 422, Mitchell v. Badgett, 33 Ark. 387; Valentine v. Washing- 
 ton, 33 Ark. 795; Byrd v. Wilcox, 8 Bax. 65; Lee v. Clark, 60 Ga. 639; 
 Mervine v. White, 50 Ala. 388; Harris v. Jones, 83 N. C. 317. 
 
 343 
 
§ 223 CHATTEL MORTGAGES. [CH. XVI. 
 
 acquires only a special property in the pledge, while the 
 general property remains in the pledgor, until the pledge is 
 sold to satisfy the claim of thepledgee.^ Inconsequence 
 of this difference of title in the mortgagee and pledgee, re- 
 spectively, their rights in the property vary on the breach 
 of the condition. The mortgagee's title to the goods be- 
 comes absolute, and the mortgagor is divested of all rights 
 in and to them, except that he has still his equity of re- 
 demption. ^ In the case of the pledge, the title remains in 
 the pledgor notwithstanding the default in payment of the 
 debt, and he is divested of his title only when the property 
 is sold by the pledgee.^ 
 
 The second point of distinction between the mortgage 
 and pledges, is that while both mortgagee and pledgee are 
 usually entitled to the possession of the goods, immediately 
 on the creation of the mortgage and pledge, respectively, 
 the pledge cannot exist without a transfer of possession to 
 the pledgee, whereas the validity of the mortgage is not at 
 all affected by the mortgagor's retention of the possession ; * 
 and it is very common, not only for the mortgagor to re- 
 tain possession, but for the mortgage to contain a provision 
 reserving to the mortgagor the right to the possession.* 
 
 Very often, where the property is a written instrument 
 of indebtedness, such as a note or bond ^ or the title to the 
 
 1 "Walker v. Stapels, 5 Allen, 34; GifEord v. Ford, 5 Vt. 532; White v. 
 Cole, 24 Wend. 116; Wright v. Ross, 36 Cal. 414; Tannahill v. Tuttle, 3 
 Mich. 104; Conner v. Carpenter, 28 Vt. 237; Evans v. Darlington, 5 
 Blackf. 320; Eastmans. Avery, 23 Me. 248; Day D. Swift, 48 Me. 368; 
 Bceman v. Lavrton, 37 Me. 543; Jordan v. Turner, 3 Blackf. 309; Sims«. 
 Canfield, 2 Ala. 555; Dook v. Bank of the State, 6 Ired. L. 309; Heyland 
 V. Badger, 35 Cal. 404; Barfleld v. Cole, 4 Sueed, 465; Brown v. Bemeut, 
 8 Johns. 96; Wood v. Dudley, 8 Vt. 430. 
 
 2 See ante, § 221; andposf, § 247. 
 ' See Jones on Pledges, § 9. 
 
 * Barsow v. Paxton, 5 Johns. 258 ; Parshall v. Eggart, 52 Barb. 367. 
 « See post, §241. 
 
 s Tiedemau on Commercial Paper, § 304. 
 344 
 
CH. XVI.] CHATTEL MOKTGAGES. § 224 
 
 goods hypothecated is evidenced by a symbolical instru- 
 ment in writing, such as a bill of lading,' or warehouse re- 
 ceipt, in the transfer of possession of the written instru- 
 ment, there may also be a transfer of title; and this is 
 particularly true where the transfer of possession is ac- 
 companied by an indorsement of the paper .^ But, except 
 where the assignment is made in the form of a mortgage 
 and contains some sort of a defeasance, it is a question of 
 intention whether the apparent transfer of the title would 
 operate as a mortgage or as a pledge.^ And in the absence 
 of a proof of intention, the transaction is presumed to be a 
 pledge, instead of a mortgage.* 
 
 But where the instrument takes the form of a mortgage, 
 parol evidence is inadmissible to show that the parties in- 
 tended the transaction to be only a pledge.^ 
 ' Where the transaction is parol and possession is delivered, 
 the difficulty of determining whether it is a mortgage or a 
 pledge increases, but it is simply a question of intention 
 of the parties.^ 
 
 § 224. Cbattel mortgages distinguished from condi- 
 tional sales, with the right to repurchase. — Inasmuch 
 as the mortgagor has a right to redeem the property from 
 the mortgage, notwithstanding default has been made, and 
 the legal title to the property has thus become absolute in 
 the mortgaged, it is very important to distinguish a chattel 
 
 1 Casey v. Cavaroc, 96 U. S. 467, 477. 
 
 2 Wright V. Ross, 36 Cal. 442; Tyler v. Strang, 21 Barb. 198; Casey v. 
 Cavaroc, 96 U. S. 466, 477. 
 
 ' Janvin v. Fogg, 49 N. H. 340, 351 ; Whiting v. Eichelberger, 16 Iowa, 
 422; Wright v. Bircher, 5 Mo. App. 322; Warren v. Emerson, 1 Curtis, 
 239; Cooper v. Whitney, 3 Hill, 95, 101; Palmer v. Gurnsey, 7 Wend. 
 248; Wright?;. Boss, 36 Cal. 414. 
 
 ■• Haskins v. Kelly, 1 Eob. 160; 1 Abb. Pr. (n. s.) 63; Jones on Pledges, 
 § 9; Tiedeman on Commercial Paper, § 304. 
 
 « Whitney v. Lowell, 33 Me. 318. 
 
 « Beeman u. Lawton, 37 Me. 643; Bardwell v. Roberts, 66 Barb. 433. 
 See post, § 225. 
 
 345 
 
§ 224 CHATTEL MORTGAGES. [CH. XVI. 
 
 mortgage from the conditional sales which sometimes bear 
 so close a resemblance to the mortgage as to be difficult to 
 distinguish from each other. 
 
 The instrument is necessarily a mortgage, if it is based 
 upon a debt, to secure the payment of which the trans- 
 fer has been made. And where there is a debt between 
 the parties, the presumption is that the transfer was a 
 mortgage to secure the payment of the debt. This pre- 
 sumption is very strong where the debt was contracted 
 contemporaneously with the transfer; ^ but, although the 
 presumption is also in favor of a mortgage, where the debt 
 was antecedent to the transferrin that case it is not so 
 strong, and will be rebutted by comparatively slight evi- 
 dence of an intention to satisfy the debt by a sale.^ But 
 even where the debt is contemporaneous, the presumption 
 may be rebutted by facts which show an intention to muke 
 a conditional sale instead of a mortgage.* But in the latter 
 case the evidence in rebuttal is required to be comparatively 
 strong. If, however, the intention of the parties is shown 
 to be to secure the payment of the debt, the presumption 
 to give a mortsage becomes conclusive, parol evidence 
 being inadmissible to rebut it.^ Whenever, in view of all 
 
 1 Sewall V. Henry, 9 Ala. 24, 34; Perkins v. Drye, 3 Dana, 170; Koss v. 
 Ross, 21 Ala. 322 ; Weathersby v. Weathersby, 40 Miss. 462 ; Locke v. 
 Palmer, 26 Ala. 312; Smith v. Quartz Mining Co., 14^CaJ. 242. 
 
 2 Dabney v. Green, 4 H. & M. (Va.) 101; Folsom'c. Fowler, 15 Ark. 
 280. 
 
 3 Poindexter v. McCannon, 1 Dev. Eq. 377 ; M'Ginnis v. Hart, 4 Bibb, 
 327; Bistiop v. Rutledge, 7 J. J. Marsh. 217; Hart v. Burton, 7 J. J. 
 Marsh. 322; Eiland v. Eadford, 7 Ala. 724; Hickman ». Cantrell, 9 Yerg. 
 172; Magee v. Catching, 33 Miss. 672; Haynie v. Robertson, 58 Ala. 37; 
 Harrison v. Lee, 1 Litt. 191 ; Sewall v. Henry, 9 Ala. 31. The surrender 
 of the instrument of indebtedness is proof of intention to make a con- 
 ditional sale instead of a mortgage (McKinstry v. Conly, 12 Ala. 678), 
 but not conclusive proof. Locke v. Palmer, 26 Ala. 312. 
 
 * Quirk V. Rodman, 6 Duer, 285; Moss v. Green, 10 Leigh, 251. 
 
 * Kelly V. Thompson, 7 Watts, 40! ; Trucks v. Lindsay, 18 Iowa, 505; 
 Page V. Poster, 7 N. H. 392; Flagg ■!). Mann, 14 Pick. 483; Pearson ». 
 Seay, 35 Ala. 612; De France v. De France, 34 Pa. St. 385; Rice v. Rice, 
 
 346 
 
CH. XVI. j CHATTEL MORTGAGES. § 224 
 
 the known facts of the case, it appears to be doubtful what 
 the parties intended, and what was the character of the 
 consideration of the transfer, the transfer is always pre- 
 sumed to be a mortgage.' 
 
 Among the facts or circumstances which tend to prove 
 that the transaction is a mortgage, and not a conditional 
 sale, is the inadequacy of the price paid for the goods,^ 
 
 4 Pick. 349; Woodson v. Wallace, 22 Pa. St. 171; Robinson v. Cropsey, 
 2 Edw. Ch. 138; 6 Paige, 480; Hughes v. Sheaff, 19 Iowa, 335; Poindex- 
 ter V. McCannon, 1 Dev. Eq. 373; Heath v. Williams, 30 Ind. 495; Pen- 
 nington u. Hanby, 4 Munf. 140; Snyder u. Griswold, 37 111.216; Mont- 
 gomery u. Chadwick, 7 Iowa, 114; Glover v. Payne, 19 Weud. 518; Kear- 
 ney V. McComb, 16 N.J. Eq. 189; McCarron ■». Cassidy, 18 Ark. 34, 
 Henley J). Hotaling, 41 Cal. 22; Cornell «. Hall, 22 Mich. 377; Davis ». 
 Stonestreet, 4 Ind. 191; Sears v. Dixon, 33 Cal. 326; Brown v. Dtwey, 1 
 Sandf. Ch. 56; Peterson v. Clark, 15 Johns. 205; Haines v. Thompson, 
 70 Pa. St. 438; WatkinSB. Gregory, 6 Blackf. 113; Rich v. Doane, 35 Vt. 
 125; Weathersby 17. Weathersby, 40 Miss. 469; Conway u. Alexander, 7 
 Cranch, 218; Trull v. Skinner, 17 Pick. 216; Wing v. Cooper, 37 Vt. 179. 
 But If the debt is an old one, and the intention of tlie parties is to pay 
 of£ the debt by the conveyance, the agreement to repurchase will not 
 convert the conveyance Into a mortgage, as it would if the conveyance 
 was intended as a security for the conveyance. Glover v. Payne, 19 
 Wend. 518; Hillhouse v. Dunning, 7 Conn. 143; Slowey v. McMurray, 27 
 Mo. 113; Houore v. Hutchings, 8 Bush, 687; Magnusson v. Johnson, 73 
 111. 156; Westt!. Hendrix, 28 Ala. 220; Ruffler u. Womack, 36 Tex. 332; 
 Hickox?;. Lowe, 10 Cal. 197; Hall v. Saville, 3 Greene (Iowa'), 37; Pitts 
 V. Cable, 44 111. 103; O'Neill v. Capelle, 62 Mo. 202; Muvphy v. Parifay, 
 52 Gi. 480 ; French v. Sturdivant, 8 Me. 246. 
 
 1 Poindexteri). McCannon, 1 Dev. Eq. 377; Locke v. Palmer, 26 Ala. 
 312; Folsom v. Eowler, 15 Ark. 280; Fowler v. Stoneum, U Tex. 478, 
 511; Desloge v. Ranger, 7 Mo. 327; Barnes v. Holcombe, 12 Sm. & M. 
 306; Russell i;. Southard, 12 How. 139; Crane v. Bonnell, 1 Green Ch. 
 264; Bacon v. Brown, 19 Conn. .S4; Cottrell v. Long, 20 Ohio, 464; 
 O'Neill!). Capelle, 62 Mo. 209; Heath v. Williams, 30 Ind. 498; Swetland 
 «. Swetland, 3 Mich. 645; Ward v. Deeriug, 4 Mon. 44; Trucks v. Lind- 
 say, 18 Iowa, 504; Scott v. Henry, 13 Ark. 112; Turners. Kerr, 44 Mo. 
 429; Gillis ». Martin, 2 Dev. Eq. 470 ; Turnipseed u. Cunningham, 16 Ala. 
 501 ; Baugher v. Merryman, 32 Md. 185 ; Eaton v. Green, 22 Pick. 526. 
 
 2 Knox V. Black, 1 A. K. Marsh. 298; Todd v. Hardie, 6 Ala. 698; 
 Hudson u. Isbell, 5 St. & P. 67; Fountain v. Bryce, 12 Rich. Eq. 234; 
 Quirk v. Rodman, 5 Duer, 285; Leblanc v. Bouchereau, 16 La. Ann. 11; 
 Cooper V. Brock, 41 Mich. 488; Wilson v. Carver, 4 Hayw. 90; Wilson v. 
 
 347 
 
§ 225 CHATTEL MOKTGAGES. [CH. XVI. 
 
 whereas the adequacy of the price tends to prove that it 
 was a conditional sale.^ These tests are more fully stated 
 elsewhere,' and it will not be necessary to repeat them 
 here. 
 
 § 225. A parol chattel mortgage, when valid. — At 
 
 common law a chattel mortgage was not required to be iu 
 writing, any more than a sale of personal property. But 
 by the statute of frauds, certain contracts for the sale of 
 goods, wares and merchandise were under some circum- 
 stances required to be in writing^ and, of course, that pro- 
 vision of the statute would apply to chattel mortgages also, 
 since they are a species of conditional sales. And it is 
 also a statutory requirement in almost every State that to 
 be valid against subsequent purchasers without notice the 
 chattel mortgage must be recorded or filed for recording, 
 and this presupposes a writing. But independently of the 
 negatives of these statutes the parol chattel mortgage is 
 still valid ; and notwithstanding the general requirement of 
 registration of the mortgage in order to be valid against 
 third persons, as between the parties to the parol mortgage, 
 it may nevertheless be enforced.* Where the possession is 
 transferred, the transaction is generally presumed to be a 
 
 Weston, 4 Jones Eq. (N. C.) 349; Eiland v. Eadford, 7 Ala. 724; Parish 
 V. Gates, 29 Ala. 284. 
 
 1 Scott V. Britton, 2 Yerg. 215. 
 
 2 See ante, § 204. 
 
 3 See ante, Chap. VI. 
 
 * Morrow v. Turney, 35 Ala. 131; Deshazo v. Lewis, S St. &P. 94; 
 Shelburne v. Letsinger, 52 Ala. 96; Thrash v. Bennett, 57 Ala. 156; 
 Stearns v. GafEord, 56 Ala. 544; Glover v. McGillivray, 63 Ala. 508; Fer- 
 guson V. Union Furnace Co., 9 Wend. 345; Ceas v. Bramley, 18 Hun, 
 187; Flory v. Denny, 7 Exch. 581 ; Loyd v. Currin, 3 Humph. 462; Couch- 
 man V. Wright, 8 Neb. 1; Bardwell v. Roberts, 66 Barb. 433; Beeman v. 
 Lawton, 37 Me. 543; Ackley v. Finch, 7 Cow. 290; Bank of Bochester v. 
 Jones, 4 N. Y. 497; Eees v. Coates, 65 Ala. 256; Alabama Warehouse Co. 
 V. Lewis, 56 Ala. 514; Brown ti. Coates, 56 Ala. 439; Bickleyc. Keenan, 
 60 Ala. 293; Brooks v. Ruff, 37 Ala. 371; May v. Eastin, 2 Port. 414, 422. 
 348 
 
Ch. XVI.] CHATTEL JIORTG AGES. § 226 
 
 pledge,' but a verbal chattel mortgage is as valid without 
 a transfer of the property as is a written mortgage. ^ 
 
 A verbal agreement to give a mortgage may be enforced 
 in equity as between the parties;' but not against other 
 parties, such as subsequent purchasers or attaching cred- 
 itors, unless they have notice of the agreement,* or the 
 mortgage has been actually executed in pursuance of the 
 agreement. 
 
 § 226. Form of the mortgage. — Although, as stated in 
 the preceding paragraph,® a parol mortgage is, independ- 
 ently of the statute of frauds, and of the recording law, as 
 valid as a written mortgage, it is the almost universal cus- 
 tom to reduce the mortgage to writing. 
 
 The execution of the chattel mortgage is not required to 
 be so exact and formal as that of the mortgage of real 
 estate, and, in fact, no particular words seem to be required 
 to constitute a good mortgage, beyond the requirement that 
 the instrument, which was intended to operate as a mort- 
 gage, must contain words sufficient to transfer the title of 
 the goods to the mortgagee.® This is because the common- 
 law chattel mortgage was in every respect a conditional sale, 
 a sale upon the condition subsequent, that the debt was not 
 paid when due. Hence all chattel mortgages originally 
 took the form of bills of sale; and although equity has to 
 some extent engrafted on the common-law theory of chattel 
 mortgages the equitable theory of a lien, the form of a con- 
 dition^al bill of sale is still employed everywhere, with very 
 slight variations. 
 
 1 Jones on Pledges, §§ 5, 13; Beeman v. Lawton, 37 Me. 543. But see, 
 contra, Bardwell v. Eoberts, 66 Barb. 433. • 
 
 2 Morrow v. Turney, 35 Ala. 131. See post, § 238. 
 
 3 Morrow v. Turney, 35 Ala. 131; Glover v. McGilvray, 63 Ala. 508; 
 Conchman v. Wright, 8 Neb. 1 ; Coster v. Bank of Ga., 24 Ala. 37, 60. 
 
 * Couchman v. Wright, 8 Neb. 1. 
 
 « See § 225. 
 
 6 See ante, § 222. 
 
 349 
 
§ 226 CHATTEL MORTGAGES. [CH. XVI. 
 
 In some of the States, statutory forms of chattel mort- 
 gages are provided ; but they do not supersede, or exclude 
 the use of, the other pre-existing forms. In fact, they dif- 
 fer in the main from the older forms only in a greater sim- 
 plicity.' 
 
 In very many of the States, a chattel mortgage is declared 
 invalid against others than the parties to the instrument, 
 unless there is affixed to it an affidavit, the contents of 
 which are proscribed by statute. Generally the affidavit is 
 confined to affirmations of good faith in the execution of the 
 morlgage.2 But in New Hampshire and Vermont, the form 
 of affidavit, prescribed bystatuce, contains' a statement that 
 the mortgage was given for a debt which is " owing from 
 the mortgagor to the mortgagee; " and in these States, in- 
 ferentially, a chattel mortgiige given to secure the payment 
 of the debt of a third person would not be valid, except as 
 between the immediate parties to the mortgage.'* The New 
 Hampshire affidavit also precludes the use of the chattel 
 mortgage to secure future advances.* But, inasmuch as 
 the purpose of the requirement of an affidavit of this kind 
 was to prevent clandestine bills of sales in fraud of creditors, 
 which could only be possible when the alleged mortgagor 
 retained possession of the mortgaged property, it has been 
 held that the affidavit is not necessary to the validity of the 
 chattel mortgage, if the possession of the property has been 
 given to the mortgagee." And it is also held that the ab- 
 
 1 Such forms are provided by statute in California, Dakota, Mary- 
 land. In Georgia, no form is required but the statute states what con- 
 s itute the essentials of a mortgage. Jones on Chattel Mortgages, 
 §35. 
 
 2 Such statutes are to be iound in Arizona, Idaho, California, Dela- 
 ware, Maryland, Ohio. Jones Chattel Mortgages, §36. 
 
 3 Parker v. Morrison, 46 N. H. 280; Sumner v. Dalton, 58 N. H. 295; 
 Belknap v. Wendell, 31 N. H. 92. 
 
 < Page V. Ordway, 40 N. H. 253. 
 
 5 Gooding v. Riley, 50 N. H. 400; Clark ». Farbell, 57 N. H. 328, over- 
 ruling dictum to contrary in Janvrin v. Fogg, 49 N. H. 340. 
 350 
 
ClI. XVI. J CHATTEL MORTGAGES. § 227 
 
 sence of the affidavit will not invalidate the mortgage as 
 against a third person interested in the property, who ac- 
 quires that interest with knowledge that the mortgage had 
 been made in good faith to secure a bona fide debt.^ 
 
 In New Hampshire and Vermont it is also required that 
 in the execution of a second or other subsequent mortgage 
 on the same property, notice of the existence of a prior 
 mortgage should be given in the subsequent mortgage. 
 But, inasmuch as this requirement is made for the benefit 
 of the subsequent mortgagee, the subsequent mortgage can- 
 not be invalidated, on account of the absence of this notice 
 from the mortgage, except at the instance of the mortgagee.^ 
 
 § 227. ■ Separate execution of the defeasance. — The 
 
 defeasance or condition of the mortgage is usually found in 
 the same instrument which serves to transfer the title of 
 the property to the creditor; but this is not necessary. It 
 may be put into a separate instrument executed and de- 
 livered by the grantee or mortgagee to the grantor or 
 mortgagor.^ But in that event the defeasance must either 
 
 1 Roberts v. Crawford, 58 N. H. 499; Sanborn v. Robiuson, 54 N. H. 
 239. 
 
 2 Leach v. Kimball, 34 N, H. 568. 
 
 3 Carpenter v'. Snelling, 97 Mass. 452; Potter v. Boston Locomotive 
 Works, 12 Gray, 154; Winslow u. Tarbox, 18 Me. 132; Davis d. Hubbard, 
 38 Ala. 185; Polhemus v. Trainer, 30 Cal. 685; Barlels v. Harris, 4 Me. 
 146; Lobban v. Garnet, 9 Dana, 389; Taber v Kamlin, 97 Mass. 489; 
 Brown v. Bement, 8 Johns. 96; Barnes v. Holcomb, 12 Smed. & M. 306; 
 In re Garney, 7 Biss. 414; Bodwell v. Webster, 13 Pick. 411; Flints. 
 Sheldon, 13 Mass. 443; Adams v. Stevens, 49 Me. 362; French v. Sturdi- 
 vant, 8 Greenl. 246 ; Dey v. Dunham, 2 Johns. Ch. 191 ; Perkins v. Dibble, 
 10 Ohio, 433; Kent ■». Allbrittain, 5 Miss. 317; Lane v. Shears, 1 Wend. 
 433; Houser v. Lamont, 55 Pa. St. 311 ; Preschbaker v. Fearaan, 32 111. 
 475; Clark v. Lyon, 46 Ga. 203; Baxter v. Dear, 24 Tex. 17; Hill v. Ed- 
 wards, 11 Minn. 22; Robinson v. Willoughby, 65 N. C. 520; Archambau 
 V. Green, il Minn. 520; Edington v. Harper, 3 J. J. Marsh. 353; Clark v. 
 Henry, 2 Cow. 324; Hammonds v. Hopkins, 3Yerg. 525; Freeman v. 
 Baldwin, 13 Ala. 246; Enos v. Sutherland, 11 Mich. 538; Marshall v. 
 Stewart, 17 Ohio, 356; Crasson v. Swoveland, 22 Ind. 427; Copeland v. 
 
 351 
 
§ 228 CHATTEL Mortgages. [ch. xvi. 
 
 be executed at the same time or subsequently in pursuance 
 of an agreement entered into at the time of the convey- 
 ance.^ 
 
 The separate defeasance need not assume any particular 
 form. Any words which clearly describe the fact that the 
 otherwise absolute bill of sale was intended to be a raort- 
 o;age would be sufficient. And if the defeasance only pro- 
 vides for a redelivery of the property on the payment of a 
 sum of money or on a return of the consideration of the 
 original sale, parol evidence is admissible to show that the 
 transaction was intended to operate as a mortgage.^ 
 
 § 228. Parol defeasance, when enforcible. — It is a 
 cardinal rule of evidence that parol evidence is inadmissible 
 to vary or control the meaning of a written instrument. 
 And in the application of this rule to the law of mortgages, 
 it is held that where the bill of sale is executed on its face 
 apparently absolute, it cannot be made to operate as a mort- 
 gage by parol proof of the inl ention of the grantor to exe- 
 cute a mortgage instead of an absolute bill of sale. This is 
 certainly the legal rul6 ; hence at law a parol defeasance is 
 invalid, if the transfer or sale had been effected by a written 
 instrument.^ But the instrument must be a bill of sale or 
 other form of transfer of title to the goods, in order that 
 the parol defeasance may be declared invalid. The fact 
 that a bill of parcels or account has been issued, does not 
 
 Yoakum, 38 Mo. 349; Sharkey ». Sharkey, 47 Mo. 543; Plato v. Roe, 14 
 Wis. 453 ; Stoever v. Stoever, 9 Serg. & R. 434 ; Baldwin v. Jenkins, 23 
 Miss. 206; Whitney v. French, 25 "Vt. 663; Lunclti. Lund, 1 N. H. 39; 
 Warren v. Lovis, 53 Me. 464; Richardson v. Woodbury, 48 Me. 206; Har- 
 rison V. Trustees, 12 Mass. 459. 
 
 1 Freeman v. Baldwin, 13 Ala. 248. 
 
 ' Locke V. Palmer, 26 Ala. 312. 
 
 3 Harper v. Ross, 10 Allen, 332; Bryant v. Crosby, 36 Me. 562; Hogel 
 V. Lindell, 10 Mo. 483; Montany v. Rock, 10 Mo. 506; Hartshorn v. Will- 
 lams, 31 Ala. 149. But see contra, Fuller v. Parish, 3 Mich. 211; Reed v. 
 Jewett, 6 Me. 96. 
 
 352 
 
CH. XVI.] CHATTEL, MORTG4GE8. § 229 
 
 prevent the parol defeasance from being operative, for in 
 that case the sale was itself parol. ^ But in equity, this rule 
 is more or less ignored, in respect to parol defeasances ; and 
 parol evidence is very generally held to be admissible to 
 prove that a bill of sale, absolute on its face, was intended 
 to be a mortgage. The authorities are not uniform as to 
 how far, or in what cases, such evidence is admissible. 
 Some have held that in any case parol evidence can be 
 introduced to prove a bill of sale to be. a mortgage, thus 
 ignoring completely the application to mortgages of the rule 
 of evidence, just explained,^ while others either deny the 
 
 1 Caswell V. Keith, 12 Gray, 361; Hazard v. Loring, 10 Cash. 267. 
 
 2 Parks V. Hall, 2 Pick. 206; Hodges v. Tenn. Marine & Fire Ins. Co., 
 8 N. Y. 416; Coe v. Cassidy, 72 N. Y. 133; Farrell v. Bean, 10 Md. 217; 
 Dougherty v. McGalgan, 6 6. & J. 275; Stokes v. Hollis,43 Ga. 262; Todd 
 V. Hardig, 5 Ala. 698; Watson v. James, 15 La. An. 386; Scott v. Henry, 
 13 Ark. 112; Rogers v. Vaughan, 31 Ark. 62; Ward v. Deerlng, 2 Mon. 
 9; Hickman v. Cantrell, 9 Yerg. 172; Hurford ». Harne(5, 6 Oreg. 362; 
 Bartel v. Lope, 6 Oreg. 321 ; Love v. Blair, 72 Ind. 281 ; Wilmerding v. 
 Mitchell, 52 N. J. L, 476; Wilson v. Carver, 4 Hayw. 90; Loyd v. Currin, 
 3 Humph. 462; Carter v. Burris, 10 Sra. & M. 527; Humphries v. Bartee, 
 10 Sm. & M. 282; Johnson v. Clark, 5 Ark. 322; Natiobal Ins. Co. v. Web- 
 ster, 83 111. 470; Hudson v. Isbell, 5 St. & P. 67; Parish ». Gates, 29 Ala. 
 254; Laeberc. Langhor,45Md.477; Ing D.Brown, 3 Md. Ch. 521; Michel- 
 son V. Fowler, 27 Hun, 159; Smith «. Beattie, 31 N. Y. 542; Despardc. Wal- 
 bridge, 15 N. Y. 374; Trieber v. Andrews, 31 Ark. 163; Kussell v. South- 
 ard, 12 How. 139; Babcock v. Wyman,19 How. 239; Sprigg v. Bk of Mt. 
 Pleasant, 14 Pet. 201; Pierce v. Robinson, 13 Cal. 116; Farmer v. Grose, 
 42 Cal. 169; Kuhn v. Rumpp, 46 Cal. 299; Klock v. Walter, 70 111. 416; 
 Conwell V. Evill, 4 Ind. 677; Heath v. Williams, 30 Ind. 495; Johnson u. 
 Smith, 39 Iowa, 549 ; Zuver v. Lyons, 40 Iowa, 570 ; Richardson v. Wood- 
 bury, 43 Me. 206; Campbell v. Dearborn, 109 Mass. 130; Hassam v. Bar- 
 rett, 115 Mass. 24; McDonough v. Squire, 111 Mass. 256 ; Glass v. Hul- 
 bert, 102 Mass. 24; Swetlandu. Swetland, 3 Mich. 482; Belatei;. Morrison, 
 8 Minn. 87; Weide v. Gehl, 21 Minn. 449 ; Littlewort e . Davis, 50 Miss. 403; 
 Freeman v. Wilson, 51 Miss.. 329; O'Neill v. Capelle, 62 Mo. 202; Slowey 
 V. McMurray, 27 Mo. 116; Schade v. Bessenger, 3 Neb. 140; Cookes v. 
 Culbertson, 9 Nev. 109; Sweet v. Parker, 22rN. J. Eq. 453; Cottrell v. 
 Long, 20 Ohio, 464; Rhines v. Baird, 41 Pa. St. 256; Palmer v. Guthrie, 
 76 Pa. St. 441; Nichols v. Reynolds, IR. I. 30; Meads. Randolph, 8 Tex. 
 191; Gibbs v. Penny, 43 Tex. 5C0; Wright v. Bates, 13 Vt. 348; Hills v, 
 
 28 353 
 
§ 228 CHATTEL MORTGAGES. [CH. XVI. 
 
 right to admit parol evidence altogether,^ or limit its ad- 
 missibility to such cases as fall within the ordinary equitable 
 jurisdiction of fraud, accident or mistake, i.e., where the 
 failure to reduce the defeasance to writing arose out of 
 some fraud, accident or mistake.^ The courts, which 
 admit parol evidence to prove a parol defeasance in any 
 ease, justify this extension of the equitable jurisdiction on 
 the ground that " fraud in the use of the deed (mortgage) 
 is as much a ground for the interposition of equity as fraud 
 in its creation."* 
 
 The parol defeasance will not only be valid in equity 
 against the parties to the mortgage, but likewise against all 
 others who might subsequently acquii-e interests in the 
 property with notice of the fact that the sale was made 
 with a defeasance.* But it cannot be enforced against a 
 subsequent purchaser for value and without notice of its 
 existence.^ 
 
 Loomis, 42 Vt. 562; Ross v. Norvell, 1 Wash. (Va.) 14; Bird v. Wilkin- 
 son, 4 Leigh, 266; Klinck v. Price, 4 W. Va. 4; Kogan v. Walker, 1 Wis. 
 527; Wilcox V. Bates, 26 Wis. 465; Fuller u. Parrish, 3 Mich. 211; Tyler 
 V. Strang, 21 Barb. 198. 
 
 1 Bassett ». Bassett, 10 N. H. 64; Porter v. Nelson, i N. H. 130; 
 Boody V. Davis, 20 N. H. 140. See Osgood v. Thompson, 30 Conn. 27, 
 where the question is pronounced to be a very doubtful one. 
 
 - Freeman v. Baldwin, 13 Ala. 246; McKinstry v. Conly, 12 Ala. 678; 
 Sewell V. Price, 32 Ala. 97; Whitfield v. Oates, 6 Jones, Eq. 136; Wash- 
 burn V. Merrills, 1 Day, 139 ; Brainerd v. Brainerd, 15 Conn. 675; Chaircs 
 V. Brady, 19 Fla. 133; Collins v. Tillon, 26 Conn. 308; French v. Burns, 
 35 Conn. 359. In Georgia, a statute confines the admission of parol evi- 
 dence to prove a defeasance to cases of fraud. Code of 1873, § 3809; 
 Spence v. Steadman, 49 Ga. 133 ; Broach v. Barfield, 57 Ga. 601 ; Biggars 
 V. Bird, 65 Ga. 650. 
 
 s Jones on Mortgages, § 288. See, also, to same effect. Pierce v. 
 Robinson, 13 Cal. 116; Conwall v. Evil), 4 Ind. 67; O'Neill v. Capelle, 62 
 Mo. 202; Wright v. Bates, 13 Vt. 348; Strong v. Stewart, 4 Johns. 
 Ch. 167; Rogan «. Walker, i Wis. 52; Moreland o. Bernhart, 44 Tex. 
 275. 
 
 * Omaha Book Co. v. Sutherland, 10 Neb. 334. 
 
 '' Morgan v. Shinn, 15 Wall. 105. 
 
 354 
 
CH. XVI.J CHATTEL MORTGAGES. § 230 
 
 § 229. Who may make a chattel mortgage — Parties 
 under disability. — The general rule is, that any owner 
 of personal property, or his duly authorized agent, may 
 execute a valid chattel mortgage, the only exception being 
 those who are under common law disability, viz: infant,*, 
 insane persons, and married women. ^ 
 
 Inasmuch as the infant's and the insane person's contracts 
 are not void, but voidable, the mortgage is enforcible, 
 until the infant determines to avoid it. And he is not pre- 
 vented from avoiding the mortgage because he has con- 
 sumed the consideration of the mortgage, and cannot restore 
 the mortgagee to his original position.^ But if the consid- 
 eration of the mortgage has not been consumed or disposed 
 of, and can therefore be returned to the mortgagee, the 
 mortgagor cannot avoid the mortgage without returning 
 the consideration. Thus, if the property mortgaged had 
 been bought from the mortgagee, and the mortgage had 
 been given to secure the purchase-money, the mortgage 
 property would have to be returned, before the mortgage 
 could be avoided.' 
 
 Inasmuch as the general subject of parties is treated 
 elsewhere, it is not considered necessary to dwell upon it 
 here in its application to chattel mortgages.* 
 
 § 230. What may be mortgaged — Mortgage of fixt- 
 ures. — It may be stated that anything which can be the 
 
 1 See ante, Chapter, II., for a general discussion of disability to be- 
 come parties to a sale. 
 
 2 Miller v. Smith, 26 Minn. 248 ; Corey v. Burton, 32 Mich. 3C ; Green 
 V. Green, 7 Ilun, 492 ; Riley v. Mallory, 33 Conn. 206 ; Chapin v. Shafer, 
 49 N. Y. 407; State v. Plaisted, 43 N. H. 413. 
 
 3 Heath v. West, 28 N. H. 101; Curtiss v. McDougall, 26 Ohio St. 66; 
 Corey v. Burton, 32 Mich. 30; Cogley v. Cushman, 16 Minn. 397; Bartho- 
 lomew V. Fiunemore, 17 Barb. 428; Carr v. Clough, 26 N. II. 280; Knaggs 
 V. Green, 48 Wis. 601; Roberts v. Wiggins, 1 N. H. 73; Skinner v. Max- 
 well, 66 N. C. 45. 
 
 * See ante, Chapter II. 
 
 355 
 
§ 230 CHATTEL MORTGAGES. [CH. XVt. 
 
 subject of an absolute sale ^ may be mortgaged.^ Every 
 species of property, tangible or intangible, may be the 
 subject of a mortgage, choses in action, as well as property 
 in possession.^ So, also, an executory right which may be- 
 come perfect by execution of the contract may be mort- 
 gaged in equity.* 
 
 Of the same character is the interest of the vendee in 
 the subject of a conditional sale. Although defeasible, if 
 the condition is subsequent, the vendee's interest may be 
 mortgaged if he is in possession of the goods,^ subject, of 
 course, to the possibility of forfeiture on account of the 
 breach of the condition by the conditional vendee and mort- 
 gagor.^ And it would seem that the conditional vendee 
 would have a mortgageable interest, if he is in possession 
 of the goods, although the agreement between vendor and 
 vendee is that the title does not pass with the pos- 
 session to the vendee until the price is paid.' But, 
 in any case, the conditional vendee has nothing which 
 he can mortgage, if he has not taken possession of the 
 property.^ 
 
 On the other hand, if the sale is made upon condition that 
 the title shall not pass until the price is paid and the posses- 
 sion is given to the vendee, the vendor so far retains the 
 title as that he may mortgage the property, to the exclusion 
 of the rights of the conditional vendee.' The mortgagee 
 
 1 See ante, Chapter V. 
 
 2 Dorsey v. Hall, 7 Neb. 460. 
 
 3 Plndell V. Grooms, 18 B. Mon. 501 : Jencks v. Smith, 1 N. Y. 90. 
 
 < Forman v. Proctor, 9B. Mon. 124; Currier v. Knapp, 117 Mass. 324; 
 Harrington 1). King, 121 Mass. 269; Chase v. Ingalls, 122 Mass. 381. 
 
 6 Crompton ®. Pratt, 105 Mass. 255; Everett v. Hall, 67 Me. 497; 
 Greenaway v. Fuller, 47 Mich. 557; Day v. Bassett, 102 Mass. 445. 
 
 « Holman v. Lock, 51 Ala. 287. 
 
 ' Blackwell v. Walker, 8 Fed. Rep. 419 Benner v. Puffer, 114 Mass. 
 376; Hart v. Carpenter, 24 Conn. 427; Thorpe v. Fowler, 57 Iowa, 541; 
 Ballard ii. Burgett, 40 N. Y. 314; Coggill v. Hartford, &c., R. R. Co., 3 
 Gray, 547. 
 
 8 Doyle V. Mizner, 40 Mich. 160. 
 
 356 
 
CH. XVI.] CHATTEL MORTGAGES. § 230 
 
 would acquire a better and superior title to the goods than 
 that of the vendee.^ And the owner of a chattel can make 
 a mortgage of goods, as long as he has a general property 
 in the goods, although some one else has acquired possession 
 under a special property therein, such as a pledge or lien;^ 
 and whether the chattel mortgage is treated as a conditional 
 sale or as a lien, the mortgagor still has sufficient interest in 
 the property, as that it may be mortgaged again, subject, 
 of course, to the first mortgage.* 
 
 It is also unnecessary that the mortgagor should have an 
 absolute property in the thing. In the cultivation of land 
 on shares, where the agreement is that the owner of the 
 land and occupant shall become tenants in common of the 
 crop, the occupant may mortgage his undivided share; but 
 if the parties are not tenants in common of the crop, but 
 the land-owner is absolute owner of the crop, and the occu- 
 pant is only entitled to a share of the crop, on division, as 
 compensation for his services, he has no interest in the crop 
 which he can mortgage.* Any tenant in common may 
 mortgage his undivided share in the property, subject to 
 the right of partition by the other co-tenants,^ and if the co- 
 tenants are partners, the power of one to mortgage his in- 
 terest is not thereby restricted, except that the mortgagee 
 of the partner will take his undivided interest in the part- 
 nership, subject to the superior equity in favor of the 
 partnership debts. ° But in every case of the mortgage of 
 an undivided interest in a joint property, the mortgagee 
 
 1 Everett v. Hall, 67 Me. 497. 
 
 * M'Calla V. Bullock, 2 Bibb, 288; Pindell v. Grooms, 18 B. Mon. 
 501. 
 
 3 Smith V. Coolbaugh, 21 Wis. 427. 
 
 ' Powder v. Rhea, 32 Ark. 435; Leiand v. Sprague, 28 Vt. 746. 
 
 « Smith V. Eice, 56 Ala. 417; Gaar v. Hurd, 92 111. 315; Shuart v. Tay- 
 lor, 7 How. Pr. 251. 
 
 « Thompson v. Spittle, 102 Mass. 207; Nicholl v. Stewart, 36 Ark. 612; 
 Monroe v. Hamilton, 60 Ala. 226; Smith v. Andrews, 49 111. 28; Moline 
 Wagon Co. v. Kummell, 2 McCrary, 301. 
 
 357 
 
§ 230 CHATTEL MORTGAGES. [CH. XVI. 
 
 does not acquire any better right to the possession of the 
 property, than the mortgagor had.^ 
 
 Although it has been held that one in possession of goods, 
 to which he has no title whatever, — except the title which 
 he acquires by possession against all the world but the true 
 owner — has nothing which he can mortgage ; ^ yet, it would 
 appear the better rule that, except as against the true owner, 
 he did have sufficient title to the goods by his possession of 
 them, to unable him to make a mortgage of them. At any 
 rate, when the mortgagor has acquired the possession with 
 the consent of the owner, and his only offense is the viola- 
 tion of the limitations imposed by the owner on his right to 
 posssession, or where the possession was obtained by fraud, 
 the innocent mortgagee is held to acquire a perfect title to 
 the goods under the mortgage, not only against the mort- 
 gagor, but also against the true owner.* It would seem to 
 be a logical inference from this proposition that the pos- 
 sessor of chattels will in any case have sufficient title to 
 mortgage them, subject, of course, to the superior rights of 
 the true owner. 
 
 --"j5^ long as fixtures remain removable by the tenant or 
 other persons who annexed them to the land, they may be 
 the subject of a chattel mortgage, notwithstanding their 
 connection with the land.* While the presumption is, when 
 things personal in their nature are annexed to the land, 
 whether by the general owner or by a stranger, that they 
 will become a permanent part of the realty, yet in any 
 such case, the personal character of the thing may be re- 
 tained in law, notwithstanding its annexation to the soil, by 
 
 1 Smith V. Rice, 56 Ala. 417; Tarbel v. Bradley, 7 Abb. N. C. 273; 
 Shuart v. Taylor, 7 How. Pr. 251 ; Gaar v. Hurd, 92 III 315. 
 
 2 Glaze V. Blake, 56 Ala. 379 ; Stanley v. Gaylord, 1 Cush. 536 ; Waters 
 V. Cox, 2 Bradw. 129. 
 
 3 Malcolm v. Loveridge, 13 Barb. 372. 
 
 4 Smith V. Benson, 1 Hill, 176; Denham v. Sankey, 38 Iowa, 269; 
 Goodenow v. Allen, 68 Me. 308; Lamphere v. Lowe, 3 Neb. 131, 134. 
 
 358 
 
CH. XVI. J CHATTEL MORTGAGEij. § 230 
 
 the agreement of the parties. ^ And if, in the purchase of 
 the thing a chattel mortgage is given for the purchase- 
 money, as between the parties to the mortgage and all 
 others having notice of the mortgage the thing remains 
 personal property, notwithstanding its subsequent annexa- 
 tion to the soil, and can therefore be sold under the fore- 
 closure of the mortgage. 2 But such a chattel mortgage 
 could not be enforced against a subsequent purchaser of the 
 land to which the thing was annexed, who bought the land 
 without notice of the chattel mortgage over the fixture.^ 
 And this also seems to be the rule, where the mortgage of 
 realty is prior to the annexation of the thing, and the owner 
 of the land subsequently attempts to make a mortgage of 
 the chattel.* And this is certainly true, where the 
 chattel mortgage is not given for the purchase money, 
 or is given after the thing has been annexed to the 
 land.^ 
 
 But where the subsequent piiVchaser or mortgagee of the 
 realty takes the deed with knowledge of the existence of 
 the chattel mortgage, the chattel mortgage will be a superior 
 lien, and can be enforced against the subsequent purchaser 
 
 1 Smith V. Wagi^oner, 50 Wis. 155; Godard v. Gould, 14 Barb. GS2; 
 Shell V. Haywood, 16 Pa. St. 523; Ford v. Cobb, 20 N. Y. 344. 
 
 2 Corcoran v. Webster, 50 Wis. 125; Ford v. Cobb, 20 N. Y. 344; 
 Kinsey v. Bailey, 9 Hun, 452; Sissou v. Hubbard, 10 Hun, 420; Eaves v. 
 Estes, 10 Kan. 314; Western Union Te). Co. r. Burlington &C.R. R. Co., 
 11 Fed. Bep, 1 ; Coman v. Laliey, 80 N. Y. 345; Heryford v. Davis, 102 U. 
 S. 235. It is not necessary to insert into the chattel mortgage the ex- 
 press stipulation that the thing mortgaged shall remain personal in Its 
 nature, as was done in Tifft v. Horton, 53 N. Y. 377. 
 
 3 Voorhees v. McGinnis, 48 N. Y. 278, 287; Pierce v. George, 108 Mass. 
 78; Coman v. Lakey, 80 N. Y. 345; Smith v. Wagg<mer, 60 Wis. 155; 
 Keeler v. Keeler, 31 N. Y. Eq. 181. 
 
 * Hunt V. Bay State Iron Co., 97 Mass. 279; Southbridge Sav. 
 Bank v. Exeter Machine Worlcs, 127 Mass. 542; Pierce <.'. Emery, 
 32 N. H. 484; Haven v. Emery, 33 N. H. 66; Burnside v. Twitchell, 43 N, 
 H. 390. 
 
 5 Smith u. Waggoner, 50 Wis. 155; Frankland ;;. Moulton, 5 Wis. 1. 
 
 359 
 
§ 230 CHATTEL MORTGAGES. [CH. XVI. 
 
 or mortgagee of the realty.^ But if the property, personal 
 in its nature, has been so permanently and securely annexed 
 ,to the soil, as that the thing cannot be extracted without 
 serious injury to the freehold, such as bricks, mortar and 
 )lumber, which have been used in the construction of a 
 (building, it is generally held that the chattel mortgage of 
 /such things cannot be enforced against a subsequent pur- 
 ) chaser or mortgagee of the land, although such purchaser 
 !0r mortgagee may have known of the chattel mortgage. ^ 
 )But if the fixture is expressly excepted from the mortgage 
 of the realty, as a matter of course, the mortgagee can 
 } make no claim to the fixture as against the chattel mort- 
 gagee.' 
 
 It has been a much-mooted question, whether the filing 
 of the chattel mortgage of a fixture would be sufficient 
 constructive notice to a subsequent purchaser or mortgagee 
 of the realty in order to give pi'iority to the chattel mort- 
 gage. There are some cases which maintain the affirma- 
 tive;* but the weight of authority is against that view, 
 and the better opinion is that the recording of the chattel 
 mortgage is constructive notice only to subsequent pur- 
 chasers and incumbrancers of the fixture, and that the pur- 
 chaser or mortgagee of the realty will only lose his priority 
 over the mortgage of the fixture by having actual knowl- 
 edge of the latter.^ 
 
 1 Simmons v. Pierce, 16 Ohio St. 215; TifEt v. Horton, 53 N. Y. 377 j 
 Tibbetts o. Moore, 23 Cal. 208; Eaves v. Estes, 10 Kan. 314; First Nat. 
 Bank v. Elmore, 52 Iowa, 541 ; Sisson v. Hubbard, 10 Hun, 420. 
 
 2 Voorhees v. McGinnis, 48 N. Y. 278, 287; Richardson v. Copeland, 
 6 Gray, 636 ; Keeler v. Keeler, 31 N. J. Eq. 181 ; Ford v. Cobb, 20 N. Y. 
 344, 351. 
 
 3 Badger v. Batavia Paper Mfg. Co., 70 111. 302. 
 
 « Ford V. Cobb, 20 N. Y. 344; Sowdeu v. Craig, 26 Iowa, 156. 
 
 " Richardson v. Copeland, 6 Gray, 536 ; Bringhoff v. Munzenmaier, 20 
 Iowa, 513; Sowden v. Craig, 26 Iowa, 165, dissenting opinion of Dillon, 
 C. J.; Fortman v. Goepper, 14 Ohio St. 558; Brennan u, Whitaker, 15 
 Ohio St. 446. 
 360 
 
CH. XVI.] CHATTEL MORTGAGES. § 231 
 
 The mortgage of an estate for years, which is of so 
 short a duratioa that it does not come within the recording 
 laws relating to the conveyances of real property, would 
 be held to be a chattel mortgage, and should be 
 recorded as a chattel mortgage. ^ But the general rule 
 is that such a mortgage would be considered an interest in 
 realty. 
 
 In a few of the States, it is provided by statute what 
 can be the subject of a chattel mortgage, and wherever 
 there is such a statutory enumeration, there is an implied 
 exclusion of all other species of property. Under such a 
 statute, a chattel mortgage is held to be invalid if it covers 
 some article not included in the statute, or if it is not exe- 
 cuted in compliance with the statute.^ But it seems to be 
 the better opinion that the chattel mortgage, which does 
 not come within the provisions of the statute, is not abso- 
 lutely invalid ; that its validity is determined according to 
 the rules of the common law, but that the special provis- 
 ions of the statute for the protection of the mortgagee 
 will not apply to such a mortgage.* Such statutes are to 
 be found in Arizona, California, Connecticut, Idaho, Michi- 
 gan and New Hampshire. 
 
 § 231. Can a chattel mortgage cover after-acquired 
 property ? — It is said to be " a common learning in the 
 law, that a man cannot grant or charge property which he 
 hath not."* And inasmuch as the common law, and the 
 still prevalent, theory is that the chattel mortgage is a grant 
 in proesenti upon condition, there is no escape from the 
 conclusion that at law a chattel mortgage cannot as a mort- 
 
 1 Bismarck Building & Loan Association v. Bolster, 92 Pa. St. 123 ; 
 Jones on Mortgages, § 471. 
 
 2 Gaylor v. Harding, 37 Conn. 608; Stringer v. Davis, 30 Cal. 318. 
 
 8 Wildman v. Rodenaker, 20 Cal. 615; Gassuer v. Patterson, 23 Cal. 
 299. See Howe v. Keeler, 27 Conn. 538. 
 4 Perkins, § 65. 
 
 361 
 
§ 231 CHATTEL MORTGAGES. [CH. XVI. 
 
 gage be made to cover after-acquired goods. ^ Not even 
 where the subject of the mortgage is a stock of goods, and 
 the agreement of the parties is that the mortgagor shall re- 
 tain the stock, sell the goods at retail in the course of trade, 
 and keep up the stock by purchasing other goods of like 
 kind. 2 The only exception to this general rule which the 
 common law recognized was in relation to those things which 
 were in the potential, but not actual, possession of the party 
 who made the grant or mortgage, such as the increase or 
 growths from the property of the grantor or mortgagor. 
 For example, it has been held possible, at common law, to 
 make a mortgage of a growing crop, where one owned the 
 land, or had a possessory interest therein,^ and even of a 
 
 1 Jones V. Ktchardson, 10 Met. 481; Chesley v. Josselyn, 7 Gray, 485; 
 Farmers' Loan & Trust Co. ». Long Beach Imp. Co., 27 Hun, 89; Otis v. 
 Sill, 8 Barb. 102; Griffith v. Douglass, 73 Me. 532; Hunt ». Bullock, 23 
 111. 320; Wilson v. Wilson, 37 Md. 1; Rose v. Bevan, 10 Md. 4G6; Le- 
 tourno V. Ringgold, 3 Crauch C. C. 103; Looker v. Peckwell, 38 N. J. L. 
 253; Comstock v. Scales, 7 Wis. 159; Williams v. Briggs, 11 R. I. 47G; 
 Cook V. Corthell, 11 R. I. 482; Parkers. Jacobs, 14 S. C. 112; Chapman 
 V. Weimer, 4 Ohio St. 481; Hunter v. Bosworth, 43 Wis. 583; Pierce v. 
 Emery, 32 N. H. 484, 505; Wagner v. Watts, 2 Cranch C. C. 169 ; Hamil- 
 ton V. Rogers, 8 Md. 301; Roy v. Goings, 6 Bradw. 162; s. c. 96 111. 361 ; 
 Head ij. Goodwin, 37 Me. 181; Chapin v. Cram, 40 Me. 561; Gardners. 
 McEwen, 19 N. Y. 123 ; Bonsey v. Amee, 8 Pick. 236 ; Codman o. Free- 
 man, 3 Cush. 306. 
 
 2 Williams v. Briggs, 11 K. I. 476; Rose v. Bevan, 10 Md. 481; Moody 
 V. Wright, 13 Met. 17; Rhines v. Phelps, 3 Gilm. 455; Chapin v. Cram, 40 
 Me. 561; St. Louis Drug Co. v. Dart, 7 Mo. App. 690; Sharpe v. Pearcc, 
 74 N. C. 600; Barnard v. Eaton, 2 Cush. 294; Jones v. Richardson, 10 
 Met. 481; Hamilton v, Rogers, 8 Md, 301; Wright v. Bircher, 5 Mo. App. 
 322; Griffith u. Douglass, 73 Mc. 532; Parker v. Jacobs, 14 S. C. 112. In 
 Georgia, it is provided by statute that such a mortgage will be efficient to 
 cover the goods added to the stock by way of replenishing the stock. 
 Ga. Code of 1882, § 1954. See, also, in construction of this statute, 
 Chisholm «. Chittenden, 45 Ga. 213; Anderson ». Howard, 49 Ga. 313; 
 Goodrich v. Williams, 50 Ga. 425; Johnson v. Patterson, 2 Woods, 443. 
 
 * Cayce v. Stovall, 50 Miss. 396; Thrash v. Bennett, 57 Ala, 156; Jones 
 
 V. Webster, 48 Ala. 109; Stephens v. Tucker, 55 Ga. 543; s. c. 58 Ga. 391; 
 
 McGee v. Fitzer, 37 Tex. 27; Moore v. Byrum, 10 S, C. 452; Cook v. 
 
 Steel, 42 Tex. 53; Butler w. Hill, 1 Baxt. 375; Stearns v. GafEord, 56 Aia. 
 
 362 
 
CH. XVI.] CHATTEL MORTGAGES. § 231 
 
 crop not yet planted, if it is to be planted or grown during 
 the continuance of the present possessory interest in the 
 land,^ although the authorities are at variance on this latter 
 proposition, many of the cases refusing to apply the doc- 
 trine of potential existence to an unplanted crop, so as to 
 make a mortgage of the crop valid at law.^ It is also held, 
 under the same doctrine of potential existence, that a mort- 
 gage of all the crops to be grown on the land during the 
 continuance of the lease, under which the mortgagor holds 
 possession, is valid. ^ Although growing trees, fruit and 
 
 544 ; White v. Thomas, 52 Miss. 49. And if the means of identification 
 are provided in the description of the mortgaged property,the mortgage 
 may be made to cover only a part of the growing crop. Stephens v. 
 Tuclier, 55 Ga. 543. But if the description does not point out which por. 
 tion is covered by the mortgage, the mortgage is only an executory 
 agreement, until the portion of crop covered by it has been set apart, or 
 otherwise definitely ascertained. Prentice v. Nutter, 25 Minn. 485; Thui'- 
 man v Jenliins, 2 Baxt. 426; Williamson v. Steele, 3 Lea, 527. 
 
 1 Van Hoozer v. Cory, 34 Barb. 9, 12; Wood v. Lester, 29 Barb. 145; 
 Hobinson v. Ezzell, 72 N. C. 231 ; Watkins v. Wyatt, 9 Baxt. 250 ; Conder- 
 man v. Smith, 41 Barb. 404; Argues v. Wasson, 51 Cal. 620; Gotten v. 
 Willoughby, 83 N. C. 75; Womble v. Leach, 83 N. C. 84; Harris v. Jones, 
 83 N. C. 317. In New Mexico, the mortgage of a growing crop is de- 
 clared to be void and of no effect, and in California, it is provided by 
 statute that such mortgages shall be enforced even after severance of the 
 crop from the soil. Jones on Chattel Mortgages, § 143. 
 
 2 McCaffrey v. Woodin, 65 N. Y. 459; Stowell v. Bair, 5 Bradw. 104; 
 Cressey v. Sabre, 17 Hun, 120; Elmore v. Simon, 67 Ala. 526; Millman v. 
 Neher, 20 Barb. 37; Bank v. Crary, 1 Barb. 542; Kees v. Coats, 56 Ala. 
 439 ; Hutchinson v. Ford, 9 Bush, 318 ; Tomlinson v. Greenfield, 31 Ark. 
 557; Apperson v. Moore, 30 Ark. 56. In Arkansas it is now provided by 
 statute that such a mortgage shall be valid at law. Sambeth v. Ponder, 
 33 Ark. 707. But in order that an instrument may operate as a mortgage 
 of an unplanted crop, it must contain words of grant, and something 
 more than an agreement that the creditor shall have the right to enter 
 and take possession of the crop when grown. Butterfleld v. Baker, 5 
 Pick. 522; Munsell ?7. Carew, 2 Cush. 50; Milliman v. Neher, 20 Barb. 37; 
 Buskirk v. Cleveland, 41 Barb. 610. 
 
 3 Fetch V. Tutin, 15 M. & W. 110; 15 L. J. Exch. 280.; Argues v. Was- 
 son, 51 Cal. 620; Everman v. Robb, 52 Miss. 653; Booker v. Jones, 55 
 Ala. 266; Thrash v. Bennett, 57 Ala. 156; Adams v. Tanner, 5 Ala. 740; 
 Mauldin v. Armistead, 14 Ala. 702; s. c. 18 Ala. 500; Headrick v. Brat- 
 
 363 
 
§ 231 CHATTEL MORTGAGES. [CH. XVI. 
 
 grass, are generally considered a part of the realty, and as 
 such cannot be the subject of a chattel mortgage ; ^ if a 
 mortgage is given of growing trees or grasses, to be cut and 
 severed from the soil,^ and more especially where it is given 
 by one who does not own the land, but who has purchased 
 the same from the owner of the land,^ it is a good chattel 
 mortgage under the doctrine of potential existence. It is 
 futher held that a valid chattel mortgage may be made at 
 common law of the future increase of stock which the mort- 
 gagor then owned,* and of the future profits or income from 
 the use of the mortgagor's steamboat.^ And so, also, may 
 a sailor mortgage his share in the profits of a whaling voy- 
 age, which is actually begun or projected.® But a mort- 
 gage could not be made at law of the fish which may be 
 caught on a projected voyage, for the fisherman has no po- 
 
 tain, 63 Ind. 438 ; Pennington v. Jones, 57 Iowa, 37 ; Fejavary v. Broesch, 
 52 Iowa, 88; Robinson v. Kruse, 29 Ark. 575; Eoblnson i>. Mauldin, 11 
 Ala. 977 ; Stearns v. GafEord, 56 Ala. 544 ; Brown v. Coats, 56 Ala. 439 ; 
 Jones V. Vl''ebster, 48 Ala. 109; Sillers v. Lester, 48 Miss. 513; Quiriaque 
 V. Dennis, 24 Cal. 154; Smith v. Atkins, 18 Vt. 461, 465; Harris v. 
 Frank, 52 Miss. 155; Bellows v. Wells, 36 Vt. 599; Lewis v. Lyman, 22 
 Pick. 437; Moulton v. Eobinson, 27 N. H. 550. 
 
 1 Crosby v. Wadsworth, 6 East, 602; Scorell v. Borall, 1 You. & Jer. 
 396; Eodwell v. Phillips, 9 M. & W. 505; Wintermute v. Light, 46 Barb. 
 278; Green v. Armstrong, 1 Den. 550; Teal v. Anty, 2 B. & B. 99; s..c. i 
 J. B. Moo. 542; Carrington v. Roots, 2 M. & W. 248; Bank of Lanslng- 
 burg V. Crary, 1 Barb. 642, 547; Cudworth v. Scott, 41 N. H. 456, 463. 
 
 2 Cook V. Stearns, 11 Mass. 533; Douglas v. Shumway, 13 Gray, 498; 
 Cudworth V. Scott, 41 N. H. 462; Wood v. Lester, 29 Barb. 145; Erskine 
 V. Plummer, 7 Me. 447; Nelson u. Nelson, 6 Gray, 385. ' 
 
 s Claflin V. Carpenter, 4 Met. 580; Smiths. Jencks, 1 Denio, 580; s.c. 
 1 N. y. 90; Green v. Armstrong, 1 Denio, 550. See Sheldon v. Conner, 
 48 Me. 584. 
 
 * Grantham v. Hawley, Hob. 132; Sawyer v. Gerrish, 70 Me. 254; 
 Moore v. Byrum, 10 S.C. 452; Farrar «._Smith, 64 Me. 74; Oakes ». 
 Moore, 24 Me. 214, 220. 
 
 5 Stewart v. Fry, 3 Ala. 573. 
 
 8 Gardner v. Hoeg, 18 Pick. 168; Tripp u. Brownell, 12 Cush. 376; 
 Low V. Pew, 108 Mass. 347. But not the profits of a voyage not yet pro- 
 jected. Cooper V. Douglass, 44 Barb. 409. 
 364 
 
CH. XVI.] CtiAl^TEL MORTGAGE. § 232 
 
 t 
 
 tential interest in the fish which he may catch in the future, 
 although he may mortgage the earnings to be derived from 
 the voyage.^ It is also impossible to mortgage a mere 
 possibility or expectancy of acquiring property.^ 
 
 It is, also, another apparent exception to the general 
 rule, which prohibits at law the mortgage of goods not yet 
 acquired, that if personal property become annexed to 
 other property, which is itself covered by a mortgage, that 
 the thing so annexed becomes a part of the mortgaged 
 property, and as such is covered by the mortgage. This 
 happens often, where a mortgage is given of an uncom- 
 pleted article.^ And on the same principle, it is held that 
 a mortgage of domestic animals covers their increase.* 
 And so lijjewise, with the growth of cuttings from mort- 
 gaged plants.^ 
 
 § 232. How far mortg'age of after acquired property 
 is Invalid — The mortgage In equity. — But it must be 
 observed, in the foregoing discussion, that the mortgage of 
 
 1 Robinson v. McDonnell, 5 Man. & Sel. 228; Low v. Few, 108 Mass. 
 347. But see Jones v. Webster, 48 Ala. 109 ; Curtis v. Auber, IJ.&W. 526. 
 
 2 Skipper I). Stokes, 42 Ala. 255; Purcell v. Matlier, 35 Ala. 570. 
 
 3 Eeid V. Fairbanks, 1 C. L. R. V87; Harding v. Coburn, 12 Met. 333 ; 
 Jenckes v. Gofie, 1 R. I. 511; Ex parte Ames, 1 Lowell, 561; Perry v. 
 Pettingill, 33 N. H. 433; Putnam v. Gushing, 10 Gray, 334; Crosby v. 
 Baker, 6 Allen, 295; Comins v. Newton, 10 A*len, 518; Ttie Canada, 7 
 Fed. Rep. 248 ; Southworth v. Ashland, 3 Sandf . 448. And see Dunning v. 
 Stearns, 9 Barb. 630; Frost u. Willard, 9 Barb. 440; Sumner «. Hamlet, 
 12 Pick. 76; Pulcifer B. Page, 32 Me. 404; Glover v. Austin, 6 Pick. 209; 
 Gregg V. Sanford, 24 HI. 17. 
 
 * Formani;. Proctor, 9 B. Mon. 124; M'Cartyu. Blevins, 5 Yerg. 195; 
 Gundy v. Biteler, 6 Bradw. 510; Nicholson v. Temple, 4 P. & B. N. B. 
 248; Hughes v. Graves, 1 Litt. 317; Tonville v. Casey, 1 Murphy (N. C.) 
 389 ; Evans v. Menlken, 8 Gill & J. 39. But this would be the case, in the 
 absence of an express stipulation that the increase shall be included, 
 only as long as it is necessary for the young to follow the dam for 
 nurture. Winter v. Landphere,42 Iowa, 471. See Thorpe v. Cowles, 55 
 Iowa, 408; Kellogg v. Lovely, 46 Mich. 131; Fowler u. Merrill, 11 How. 
 375. 
 
 " Bryant v. Pennell, 61 Me. 108. 
 
 365 
 
§ 232 CHATTEL MORTGAGES. [cn. XVI. 
 
 after-acquired goods is held to be invalid only as against sub- 
 sequent purchasers and attaching creditors. Such a mort- 
 gage is good as between the parties to the naortgage, the 
 mortgagor being estopped from denying its validity as to 
 the after-acquired goods,' and the mortgage is also held to 
 be valid against a purchaser who buys with notice of the 
 mortgage, on the ground that since the mortgagor is bound, 
 the purchaser with notice is not misled and therefore gets 
 no better title. ^ . For the same reason, viz., that of notice, 
 if the mortgagee has taken possession of the after-acquired 
 property under the mortgage, the mortgage will be valid 
 against subsequent purchasers and attaching creditors.' 
 And the same result is attained, whether the mortgagor 
 voluntarily puts the mortgagee into possession, or the 
 mortgagee acquires possession against the will of the mort- 
 gagor, but in pursuance of an executory agreement con- 
 tained in the mortgage that he shall take possession on 
 default of payment.* Another form of validating the 
 
 1 Allen V. Goodnow, 71 Me. 420, 425; Fejavary ». Broesch, 52 Iowa, 
 88. 
 
 2 Robson V. Michigan Central E. R. Co., 37 Mich. 70; People v. Bris- 
 tol, 35 Mich. 28; American Cigar Co. v. Foster, 36 Mich. 368; Cadwell 
 V. Pray, 41 Mich. 307; Wood v. Lester, 29 Barb. 145; McGee v. Fitzer, 37 
 Tes:. 27. 
 
 3 Rowley V. Rice, 11 Met. 333; Chase v. Denny, 130 Mass. 566; But- 
 terfleld u. Baker, 5 Pick. 522; Carrington v. Smith, 8 Pick. 419; Leland 
 V. Collver, 34 Mich. 418; McCaffrey v. Woodin, 65 N. Y. 459; Kennedy v. 
 Not. Union Bank, 23 Hun, 494; Gregg i;. Sanlord, 24 111. 17; Eoy v. 
 Goings, 6 Bradw. 162 ; Chapman v. Weiner, 4 Ohio St. 484 ; Thompson v. 
 Foerstel, 10 Mo. App. 290; Farmers' Loan & Trust Co. v. Commercial 
 Bank, 11 Wis. 207; Morrow v. Reed, 30 Wis. 81 ; Booker v. Jones, 55 Ala. 
 266; Stern v. Simpson, 62 Ala. 194; Moore v. Byrum, 10 S. C. 452, 462; 
 Oliver v. Town, 28 Wis. 328; Chynoweth v. Tenney, 10 Wis. 397; Cam- 
 eran v. Marvin, 26 Kan. 612, 629; Brown v. Webb, 20 Ohio, 389; Hunt 
 V. Bullock, 23 111. 320; Titus v. Mabee, 25 111. 257; Brown v. Piatt, 8 
 Bosw. 324; Cook v. Cortrell, 11 R. I. 482; Williams v. Brlggs, 11 R. I. 
 476; Griffith v: Douglass, 73 Me. 532; Mitchell u. Black, 6 Gray, 100; 
 Moody V. Wright, 13 Met. 32. 
 
 * Thompson v. Foerstel, 10 Mo. App. 290; Chapman u. Weimer, 4 
 Ohio St. 481. And the attempted revocation of a license to enter into 
 366 
 
CH. XVI. J CHATTEL MORTGAGES. § 232 
 
 mortgage of after-acquired goods is to indorse on tlie 
 mortgage, after the goods have been acquired some sort of 
 satisfaction of the mortgage.^ 
 
 Where the after-acquired goods have been mixed up with 
 the goods which were in possession when the mortgage was 
 executed, the burden is on the mortgagee to prove which of 
 tlie goods were the property of the mortgagor at the date 
 of the mortgage.''' 
 
 But whatever doubt and confusion may prevail as to the 
 validity atlaw of mortgages which cover after-acquired goods, 
 since equity treats the chattel mortgage as a lien, instead of 
 a grant, the mortgage will be enforced in a court of equity 
 over the after-acquired property, " attaching in equity as a 
 lien or charge upon the particular property as soon as the 
 assignor or contractor acquires a title thereto, against the 
 latter and all persons asserting a claim thereto under him, 
 either voluntarily, or with notice." ^ 
 
 possession will not avail to prevent the enforcement of the mortgage. 
 Wood V. Leadbltter, 13 M. & W. 838; Wood v. Manly, 11 Ad. & E. 34; 
 McCafErey v, Woodin, 65 N. Y. 459. But see, contra, Chynowcth v. 
 Tenney, 10 Wis. 397; Single v. Phelps, 20 Wis. 398. 
 
 ' Brown V. Thompson, 59 Me. 372. See, also, Griffith u. Douglass, 73 
 Me. 532. 
 
 2 Hamilton v. Rogers, 8 Md. 301. But see Mowry v. White, 21 Wis. 
 417; Dunuicg a. Stearns, 9 Barb. 630; Simmons v. Jenkins, 76 111. 479. 
 
 3 Story, J., in Mitchell v. Winslow, 2 Story G. C. 634; Butt v. Ellett, 
 
 19 Wall. 544; s. c. 1 Woods C. C. 214; Nat. Shoe & Leather Bank ». 
 Small, 7 Ted. Eep. 837; Apperson n. Moore, 30 Ark. 66 ; Parkers. Jacjbs, 
 14 S. C. 112; Floyd v. Morrow, 26 Ala. 353; Scharfenburg v. Bishop, 35 
 Iowa, 60; Fejavary v. Broesch, 52 Iowa, 88; Phelps v. Murray, 2 Tenn. 
 Ch. 746; Cook ». Corthell, 11 E. I. 482; Groton Mfg. Co. v. Gardiner, 11 
 R. I. 626; Thompsons. Poerstel, 10 Mo. App. 290, 299; Page ?;. Gardner, 
 
 20 Mo. 507; Pennock v. Coe, 23 How. 117; Smithurst v. Edmunds, 14 N. 
 J. Eq. 408; Gevers v. Wright, 18 N. J. Eq. 330; McCaffreys. Woodin, 
 Co N. Y. 459; First Nat. Bank v. Turnbull, 32 Gratt. 695: Brockenbrough 
 V. Brockenbrough, 31 Gratt. 580; Ross v. Wilson, 7 Bush, 29; Zaring v. 
 Cox, 78Ky. 527; Borst ». Nalle, 28 Gratt. 423; Levy s. Welsh, 2 Ed w. 
 Ch. 438; Williamson v. N. J. Southern E. E. Co., 29 N. J. Eq. 311; 
 Wright Z7. Bircher, 72 Mo. 179; Griffith u. Douglas^, 73 Me. 532 ; Will- 
 iams V. Winsor, 12 E. I. 9; Sillers v. Lester, 48 Miss. 513; Stephens v. 
 
 mi 
 
§ 233 CHATTEL MOE*GAGtES. CH. XVI.] 
 
 But, in order that the chattel mortgage may, in any case, 
 at law or in equity, cover after-acquired property, the 
 mortgage must show that it was intended to cover the after- 
 acquired property ; ^ and the mortgage must describe these 
 goods so that they may be identified by the description.' 
 
 The authorities do not agree as to the effect of recording 
 a chattel mortgage which covers after-acquired property, 
 as to charging subsequent purchasers with constructive no- 
 tice of the lien on the after-acquired property. Some of 
 the cases hold that the recording does not serve to give 
 constructive notice,^ not even when the mortgage has be- 
 come valid at law by a reduction of the after-acquired 
 goods to the possession of the mortgage.* But there are 
 other courts, which maintain that the record gives con- 
 structive notice of the contents of the mortgage, although 
 it is only operative in equity.^ 
 
 § 233. Description of property. — It is the requirement 
 of every sort of conveyance or grant that the projjerty or in- 
 
 Pence, 56 Iowa, 257; Gregg v. Sanford, 24 111. 17; Robinson v. Mauklin, 
 11 Ala. 977; Schulenburg v. Martin, 1 McCrary, 348; Brett v. Carter, 2 
 Low. 458 ; Beall v. White, 94 U. S. 382. But see contra Moody v. Wright, 
 13 Met. 30; Barnard v. Eaton, 2 Cush. 294; Chynowclh v. Tenney, 10 
 Wis. 397; Hunter v. Bostworth, 43 Wis. 583. 
 ^ Phillips V. Both, 58 lovfa (1882), 499. 
 
 2 Belding v. Read, 3 Hurl. & C. 955; Lazarus v. Andrade, 5 C. P.D. 
 318. See post, I 233, for a general discussion of the requisites in de- 
 scription. 
 
 3 Jones V. Richardson, 10 Met. 493; Frost v. Willard, 9 Barb. 440; 
 Farmers' Loan & Trust Co. v. Long Beach Imp. Co., 27 Hun, 89; Jones v. 
 Chamberlin, 6 Heisk. 210; Single v. Phelps, 20 Wis. 398; Tedford v. 
 Wilson, 3 Head, 311; Polk v. Foster, 7 Barb. 98; Griffith v. Douglas, 78 
 Me. 532. 
 
 * Single V. Phelps, 20 Wis. 398; Mowry v. White, 21 Wis. 417. 
 
 5 Gregg V. Sandford, 24 111. 17; Hart v. Farmers' & Mechanics' Bank, 
 33"Vt. 252; Duke v. Strickland, 43 Vt. 494; Parkers. Jacobs, 14 S. C. 
 112; Scharfenburg v. Bishop, 35 Iowa, CO; Brown v. Allen, 35 Iowa, 306. 
 See, also, Butler v. Hill, 1 Baxt. 375; Williamson v. Steele, 3 Lea, 527, 
 as to mortgage of a growing crop. 
 368 
 
[CH. XVI. CHATTEL MORTGAGES. § 233 
 
 terest conveyed should be so particularly described as that 
 it may be identified. Property, which is not fairly included 
 in the description of the mortgaged property cannot pass 
 by the mortgage, and parol evidence is not admissible to 
 show that the parties intended the mortgage to cover the 
 property which is in fact excluded by the terms of the de- 
 scription.i And if the description is wholly false, i.e., 
 goods cannot be found which answer to the description, 
 then the mortgage is altogether invalid. ^ But where the 
 description is partly true and partly false, if the goods in- 
 tended to be covered by the mortgage may be identified and 
 differentiated from others by the part of the description 
 which is true, the false part may be rejected as surplusage, 
 under the maxim /hZsa demonstraiio non nocet.^ If a de- 
 scription is so indefinite as that the goods covered by the 
 mortgage cannot be identified, the defect may be cured, 
 as between the parties to the mortgage, and as against par- 
 ties who acquire interest in the goods subsequently, by the 
 transfer of the goods to the possession of the mortgagee.* 
 But in order that a description may be sufficient to make 
 the mortgage effectual, it need not be so exact and minute 
 as that a stranger may, without any extraneous aid, and 
 
 1 Huttont?. Arnett, 61 111. 198; Hunt v. Bullock, 23 111. 320; Ford ». 
 Sutherlin, 2 Mon. 440; Curtis «. Phillips, 5Micli. 112; Partridge ». White, 
 59 Me. 564; Kemp v. Caruley, 3 Duer, 1; Crawshay v. Collins, J. & W. 
 267; 2 Euss. 339; Fletcher ». Powers, 131 Mass. 333; Van Patten v. 
 Leonard, 55 Iowa, 520; Yant v. Harvey, 55 Iowa, 421. 
 
 2 Bowman v. Roberts, 58 Miss. 126 ; Adams v. Commercial Nat. Bank, 
 53 Iowa, 491. 
 
 3 King V. Aultman, 24 Kan. 246; Dodge ». Potter, 18 Barb. 193; Pet. 
 tis V. Kellogg, 7 Cush. 466; Spaulding v. Mozier, 67 111. 148; Harris v. 
 Kennedy, 48 Wis. 500 ; Lawrence v. Bvarts, 7 Ohio St. 194; Fordyce ». 
 Neal, 40 Mich. 705; Rowley v. Bartholomew, 37 Iowa, 374; Hunt v. 
 Shacklelord, 66 Miss. 397; Goff v. Pope, 83 N. C. 123. 
 
 * Parsons Savings Bank v. Sargent, 20 Kan. 576 ; Stephens v. Tucker, 
 14 N. J. L. 600; Pennington v. Jones, 57 Iowa, 37; Muir v. Blake, 67 
 Iowa, 662; Robinson v. Mauldin, 11 Ala. 977; Williamson v. Steele, 3 
 Lea, 530. 
 
 24 369 
 
§ 233 CHATTEL MORTGAGES. [CH. XVI. 
 
 merely by reference to the description in the mortgage, 
 select the goods which were intended to pass by the mort- 
 gage. It is a practical impossibility to bring the descrip- 
 tion to so high a state of perfection.^ And hence, although 
 parol evidence is not admissible for the purpose of making 
 a description, or of supplying its fatal deficiencies^ or of 
 contradicting its express provisions;^ it is admissible for 
 the purpose of identifying the mortgaged goods, by proving 
 their correspondence with the description in the mortgage.* 
 And with the aid of parol evidence which is suggested by the 
 description the most general sort of description is found to 
 be sufficient, to identify the property covered by the mort- 
 gage ; ^ such, for example, as all my stock of goods or tools, 
 " in or about the wheelwright's shop occupied by me," ® and 
 
 1 Comins v. Newton, 10 Allen, 618. 
 
 2 Tindall v. Wasson, 74 Ind. 495; Hunt v. Shackleford, 56 Miss. 
 397; Montgomery v. Wight, 8 Mich. 143; Eose v. Scott, 17 Q. B. U. C. 
 386. 
 
 ' Hurd V. Gallaher, 14 Iowa, 394; Button v. Arnett, 61 111. 198. 
 
 * Wagner v. Watts, 2 Cranch C. C. 169; Bums v. Harris, 66 Ind. 536; 
 Duke 11. Strickland, 43 Ind. 494; Elder ». Miller, 60 Me. 118; Skowhegan 
 Bank v. Farrar, 46 Me. 293; Smith v. McLean, 24 Iowa, 322; Pike v. 
 Calvin, 67 III. 227; Myers v. Ladd, 26 111. 415; Williams v. Merritt, 23 
 111. 623; Mattingly t>. Darwin, 23 111. 618; Jordan v. Hamilton Co. Bank, 
 11 Neb. 499; Turners. McPee, 61 Ala. 468; Beach v. Derby, 19 111. 617; 
 Bell V. Prewitt, 62 111. 361; Spaulding v. Mozier, 57 111. 148; Stephens v. 
 Tucker, 14 N. J. L.600; Brooks v. Aldrich, 17 N. H. 443; Chapin v. Cram, 
 40 Me. 561; Holmes v. Hinkle, 63 Ind. 618; Ebberle v. Mayer, 61 Ind. 235; 
 Tindall v. Wasson, 74 Ind. 496. 
 
 * Winter v. Landphere, 42 Iowa, 471 ; Yant v. Harvey, 65 Iowa, 421 ; 
 Connally v. Spragins, 66 Ala. 258; Tindall v. Wasson, 73 Ind. 496; Law- 
 rence V. Evarts, 7 Ohio St. 194; Jordan v. Hamilton Co. Bank, 11 Neb. 
 499; Smith v. McLean, 24 Iowa, 322. 
 
 ■* Harding v. Cobunr, 12 Met. 333. See similar descriptions, Burditt 
 V. Hunt, 25 Me. 419; Eussell v. Winne, 37 N. T. 591 ; Crow v. Red Kiver 
 Co. Bank, 52 Tex. 362; WoUe v. Dorr, 24 Me. 104; Conkllng v. Shelley, 
 28 N. Y. 360; Gardner v. McEwen, 19 N. Y. 123; Stephens ■<;. Pence, 56 
 Iowa, 257; Beach v. Derby, 19 111. 617; Skowhegan Bank v. Farrar, 46 
 Me. 293; Curtis v. Martz, 14 Mich. 506; Fore v. Hibbard, 63 Ala. 410; 
 Adams V. Hill, 10 Kan. 627; Ebberle v. Mayer, 51 Ind. 235; Hurtc. Redd, 
 64 Ala. 85; Smith v. McLean, 24 Iowa, 322. 
 370 
 
CH. XVI. j CHATTEL MORTGAGES. § 233 
 
 descriptions even more indefinite are held to be sufficient, if 
 explained by parol evidence, such, as " one black mule eight 
 years old," ^ two horses belonging to the mortgagor,' and the 
 like.^ A mortgage of " my entire crop of cotton and corn 
 for the present year " is good; * but the mortgage is too 
 indefinite if the year of planting is not given. ^ A general 
 description of property to be mortgaged only becomes 
 defective, when the property mortgaged constitutes a part 
 of a larger bulk or a larger number of goods of the same 
 kind. And, even where that is the case, if the means of 
 distinguishing the part mortgaged from the rest are fur- 
 nished in the description, the description is sufficiently ac- 
 curate to make the mortgage valid .^ And where the 
 mortgage is made expressly to cover an undivided share in 
 a joint property, it is not void for uncertainty of descrip- 
 tion.' But if the mortgage does not, in the terms of de- 
 scription, provide the means of identifying the part of the 
 property which is covered by the mortgage, it is void for 
 uncertainty, and parol evidence is not admissible to cure 
 the defect.* And the mortgage is also void for uncer- 
 
 1 Connally v. Spragins, 66 Ala. 258. 
 
 2 Brooks V. Aldrich, 17 N. H. 44.S. 
 
 s Elder v. Miller, 60 Me. 118; Sharpe v. Pearce, 74 N. C. 600; Burns v. 
 Harris, 66 Ind. 536; Eddy v. Caldwell, 7 Minn. 225. 
 
 < Ellis V. Martin, 60 Ala. 394 ; Crine v. Tifts, 65 Ga. 644. 
 
 5 Pennington v. Jones, 57 Iowa, 37; Mair ». Blake, 57 Iowa, 66S. 
 
 6 A lot of lumber, part of a still larger lot, described as " tiie north- 
 erly 1,250,000 feet, lying in a certain creek, and bearing a certain mark. 
 Mercliants' Nat. Bank v. McLaughlin, 1 McCrary, 258; s. c. 2 Fed. Kep. 
 128. " The first cotton that may be gathered." Stearns v. Gafeord, 56 
 Ala. 544; Robinson v. Mauldin, 11 Ala. 977; Shaffer v. Pickrell, 22 Kan. 
 619. See Crosswell v. Allis, 25 Conn. 301; Brown v. Holmes, 13 Kan. 
 482; Kelly v. Reed, 57 Miss. 89. 
 
 ' Potts V. Newell, 22 Minn. 561; Zehner v. Aultman, 74 Ind. 24. 
 
 8 Crosswell v. Allis, 25 Conn. 301; Kelly v. Eeid, 67 Miss. 89; Draper 
 t!. Perkins, 57 Miss. 277; Fowler v. Hunt, 48 Wis. 345; Washington v. 
 Love, 34 Ark. 93; Richardson v. Alpena Lumber Co., 40 Mich. 203; 
 Golden v. Cockril, 1 Kan. 259; Parsons Savings Bank v. Sargent, 20 
 Kan. 676; Williamson v. Steele, 3 Lea, 527; Montgomery v. Wight, 8 
 
 371 
 
§ 233 CHATTEL MORTGAGES. [CH. XVI. 
 
 tainty, where, under a general description of the mortgaged 
 goods, an uncertain quantity is excepted from the opera- 
 tion of the mortgage; as, for example, where the mortgage 
 is made to cover " all the mortgagor's personal effects ex- 
 cepting such as are exempt from attachment or from levy 
 and sale under execution." ^ But the exemption from at- 
 tachment and execution will not affect the validity of the 
 mortgage, as to the articles which are expressly enumerated 
 in the description, when there is other property to which 
 the exception can apply. The uncertainty would only 
 affect the relation of the mortgage to the goods not specif- 
 ically described. 2 
 
 If the mortgage provides for the annexation of a sched- 
 ule or enumeration of the things which are covered by the 
 mortgage,^ or contains a reference to a schedule or descrip- 
 tion to be found in some other deed or mortgage,* the 
 scope of the mortgage is generally determined by the terms 
 of the schedule ; and if the schedule is omitted, after being 
 referred to in the mortgage, the mortgage is invalid, unless 
 it contains some independent general description which is 
 sufficiently definite to identify the property mortgaged in 
 
 Mich. 143; Blakely ». Patrick, 67 N. C. 40; Nicholson v. Karpe, 58 Miss. 
 34; Person v. Wright, 35 Ark. 169; Newell v. Warner, 44 Barb. 263; 
 Bullock B. Williams, 16 Pick. 33. But although such a mortgage may- 
 be void for uncertainty as against third parties, it is good as between 
 the parties to the mortgage, as to whom it amounts to a power in tlie 
 mortgagee to select out of the larger bulk or number, the quantity called 
 for by the mortgage. Call v. Gray, 37 N. H. 428; Heyward's Case, 2 
 Coke, 36. 
 
 1 Newell V, Warner, 44 Barb. 258. See, to same general effect, 
 Fowler v. Hunt, 48 Wis. 345, where the exception was as to stock in 
 trade to the amount of $200. 
 
 9 Giddey w. Uhl, 27 Mich. 94. 
 
 3 Weeks v. Maillardet, 14 East, 568; Edgell v. Hart, 9 N. Y. 213; En- 
 gland V. Downs, 2 Beav. 522. When a schedule is found annexed to a 
 mortgage, in the body of which there is provision for one, the prima 
 facie presumption is that the schedule was attached to the mortgage at 
 or before its execution. Belknap v. Wendell, 21 N. H. 175. 
 
 •> Newman v. Tyraeson, 18 Wis, 172. 
 372 
 
CH. XVI. J CHATTEL MORTGAGES. § 233 
 
 whole or in part.^ But the scope of the mortgage cannot 
 be enlarged by including in the schedule things which do 
 not fairly come within the general description contained in 
 the mortgage.^ So, also, if the mortgage contains a gen- 
 eral description and refers to a schedule for a more specific 
 enumeration of the things covered by it, insteiid of its 
 covering everything which might fairly be included in the 
 general description, its operation will be confined to those 
 which are specifically described in the schedule.^ On the 
 other hand, a general description of goods, following a 
 special enumeration of articles, will bring within the oper- 
 ation of the mortgage everything • of the same kind, as 
 those which are especially mentioned; but the scope of 
 the mortgage cannot be so enlarged by the general descrip- 
 tion as to include things unlike those which are specifically 
 described.* 
 
 As long as the goods ma}' be identified by the mort- 
 gagee, any change in the character^ or location" of the things 
 covered by the mortgage will not affect the mortgagee's 
 right to them. But as against third persons having no 
 notice of the agreement other property cannot be put in 
 the place of the property described by the mortgage, al- 
 
 1 England v. Downs, 2 Beav. 522: Van Heusen v. Radclifee, 17 N. Y. 
 580; Winslow v. Merchants' Ins. Co., i Met. 306. 
 
 ' Ex parte Jardlne, 10 L. R. Ch. App. 322. 
 
 ' Wood'!). Eowclifee, 6 Exch. 407; Barton v. Dawes, 19 L. J. C. B. 
 302; Gann v. Ruttan, 7 Up. Can. C. P. 516; Kingston v. Chapman, 9 Up. 
 Can. C. P. 130; Morrell v. Fisher, i Exch. 591; s. c. 19 L. J. Exch. 273. 
 
 * Russell V. Winne, 37 N. Y. 591; s. c. i Abb. Pr. (n. s.) 384; Veazie 
 V. Somerbig, 5 Allen, 280; Thurber v. Minturn, 62 How. Pr. 27; Dixon 
 M. Coke, 77 N. C. 205; Smith t). McCullough, 104 U. S. 25; Brainerd ». 
 Peck, 34 Vt. 496; Goulding v. Swett, 13 Gray 517. 
 
 ^ Comius B. Newton, 10 Allen, 518; Crosby v. Baker, 6 Allen, 295; 
 Lawrence v. Evarts, 7 Ohio St. 194; Smith v. Beattie, 31 N. Y. 542. 
 
 6 Duke V. Strickland, 43 Ind. 494 ; Hackleman v. Goodman, 75 Ind. 
 202; White v. Brown, 12 Up. Can Q. B. 477; Wheelden o. Wilson, 44 
 Me. 1; Brown w. Thompson, 59 Me. 372; Smith v. Jenks, 1 Den. 580; 
 - Rider v. Edgar, 54 Cal. 127. 
 
 373 
 
§ 234 CHATTEL MORTGAGES. [CH. XVI. 
 
 though such a substitution would be binding between the 
 parties and those having notice of the same.i 
 
 § 234. Description of the debt — What is a sufficient 
 
 indebtedness There can be no mortgage without a 
 
 mortgage debt or liability. The debt may be either 
 antecedent or pre-existing ^ or contemporary, or it may 
 be incurred m the future, the last being known as mort- 
 gages for future advances.'^ A mortgage may also be 
 given to secure the performance of a contingent liabil- 
 
 1 Powers V. Freeman, 2 Lansing, 1271 ; Sharp v. Pearce, 74 N. C. 600. 
 
 2 Kranerti!. Simon, 65 111. 344; Prior u. White, 12 111. 261; Gilchrist 
 V. Gough, 63 Ind. 576; Wright v. Bundy, 11 Ind. 398; Smith v. Worman 
 19 Ohio St. 145; Turner v. McFee, 61 Ala. 468; Steiner v. McCall, 61 Ala 
 406; Cromelin v. McCauley, 67 Ala. 542; Paine a. Benton, 32 Wis. 491 
 Machette v. Wanless, 1 Col. 225; Busenbarke v. Eamey, 53 Ind. 499 
 McLaughlin v. Ward, 77 Ind. 383; Butters v. Haugliwont, 42 111. 18 
 Turner v. Killiau, 12 Neb. 580. In New York, and elsewhere, the mortgagee 
 has not the rights of a bona fide purchaser as against the true owner ot 
 the property, if the mortgage is given for a pre-existing debt. Wood- 
 burn V. Chamberlin, 17 Barb. 446; Van Slyck ». Newton, 10 Hun, 554; 
 Craft V. Russell, 67 Ala. 9 ; Kennedy v. Nat. Union Bank, 23 Hun, 49 1 ; 
 Thompson v. Van Vechten, 27 N. Y. 508. But in these exceptional States, 
 the mortgage of a pre-existing debt may be enforced against a general 
 creditor (Walker v. Henry, 85 N. Y. 130), but not against a prior unre- 
 corded mortgage. TifEany v. Warren, '7 Barb. 571. 
 
 3 Jones V. Guaranty & Indemnity Co., 101 U. S. 622; McCarty v. 
 Chalfant, 14 W. Va. 531; Brown v. Kiefer, 71 N. Y. 610; Monnot v. Ibert, 
 33 Barb. 24; Walker v. Snediker, 1 Hoff. Ch. 145; Hendrix ». Gorey, 8 
 Oreg. 406; Jarratt v. McDaniel, 32 Ark. 698; Ackerman v. Hunsicker, 
 85 N. Y. 43; Miller v. Finn, 1 Neb. 254, 287; Speer v. Skinner, 35 111. 282; 
 Bank of Utica v. Finch, 3 Barb. Ch. 293 ; Craig v. Toppin, 2 Saudi. Ch. 
 78; Ex parte Ames, 1 Lowell, 561 ; Barnard «. Moore, 8 Allen, 273. Some 
 of the earlier cases neld that the mortgage may be made to cover future 
 advances, if it was also given to secure the payment of an exist'^ng In- 
 debtedness. Lawrence v. Tucker, 23 How. 14; Holbrook v. Baker, 6 Me. 
 309; Wescotti;. Gunn, 4 Duer, 107; Carpenter «. Blote, 1 E. D. Smith, 
 491 ; North v. Crowell, 11 N. H. 251 ; Page v. Ordway, 40 N. H. 253; Fair- 
 banks «. Bloomfleld, 5 Duer, 434; Googins v. Gilmore, 47 Me. 9; Badlam 
 V. Tucker, 1 Pick. 389. But the mortgage is now held to be valid with- 
 out any existing debt. Schuelenberg v. Martin, 1 McCrary, 348 ; Womble 
 V. Leach, 83 N. C. 84; Brown w. Kiefer, 71 N. Y. 610. 
 
 374 
 
CH. XVI.] CHATTEL MORTGAGES. § 234 
 
 ity, as, for example, to secure a surety against loss on 
 his obligation as a surety.^ Tiie mortgage may be given 
 to secure two or more debts, and it will not be neces- 
 sary that all the debts should be owing to the moi-tgagee.^ 
 But in order that a debt may be secured by the mortgage, 
 it should be so definitely described and limited in the mort- 
 gage that it may be recognized and distinguished from other 
 obligations.* As long as the debts secured may be identi- 
 fied by the description, it is not necessary for the descrip- 
 tion to contain a full statement of all the particulars of the 
 debt.* The most general sort of a description is sufficient, 
 it not being necessary to state in the mortgage the 
 amount of the debt, whether the sum was certain or un- 
 certain,^ or the time of performance of the obligation.^ 
 It is also unnecessary for the mortgage to contain a 
 
 1 Eobinson v. Hill, 15 N. K. 477; Curtis v. Tyler, 9 Paige Ch. 432; 
 Richards v. Yoder, 10 Neb. 329; Eastman v. Foster, 8 Met. 19. See, also, 
 Goodheart v. .Tohnson, 88 111. 58; Frenchard v. Warner, 18 III. 142. 
 
 2 Jones on Mortgages, g 135; Spencer v. Pierce, 5 R. I. 63. 
 
 3 Robertson i;. Stark, 15 N. II. 12; Partridge v. Swazey, 46 Me. 414; 
 Fink V. Branch, 16 Conn. 260; Boody v. Davis, 20 N. II. 140; McKinster 
 (7. Babcock, 20 N. Y. 375; Paine v. Benton, 32 "Wis. 491 ; Hurd v. Robin- 
 son, 11 Ohio St. 232; Kimball v. Myers, 21 Mich. 276; Follett ?;. Heath, 
 15 Wis. 601; Booth v. Barnum, 9 Conn. 286; Ricketson v. Richardson, 16 
 Cal. 330; Moore ». Fuller, 6 Oreg. 272; Sheaf e u. Gerry, 18 N. H. 245; 
 Oilman v. Moody, 43 N. H. 329; McDaniels v. Calvin, 16 Vt. 300; Aull v. 
 Lee, 61 Mo. 160; Hughes v. Edwards, 9 Wheat. 489; Boyd v. Baker, 43 
 Md. 182; Kellogg u. Frazier, 40 Iowa, 502; Warners. Brooks, 14 Gray, 
 107; Johns v. Church, 12 Pick. 557; Hough v. Bailey, 32 Conn. 288; 
 Williams v. Hilton, 35 Me. 547. 
 
 * Robertson ». Stark, 15 N. H. 109; Colby ■». Everett, 10 N. H. 425; 
 Clark V. Hyman, 55 Iowa, 26 ; Hurd i). Robinson, 11 Ohio St. 232; Holmes 
 V. Hinkle, 63 Ind. 518 ; North v. Crowell, 11 N. H. 251. The rule is some- 
 what different and stricter in Connecticut. Rood v. Welch, 28 Conn. 
 157; Utley ?7. Smith, 24 Conn. 290, 314. 
 
 * Pike V. Collins, 33 Me. 38; Somersworth Sav. Bank ^.'Roberts, 38 N. 
 H. 22. But see, contra, Hart v. Chalker, 14 Conn. 77; Pearce v. Hall, 12 
 Bush, 209, which hold that where the mortgage debt is a fixed sum, the 
 amount should be stated. 
 
 " Byran v. Gordon, 11 Xlich. 531 ; Fuller v. Acker, 1 Hiil, 473. 
 
 375 
 
§ 234 CHATTEL MORTGAGES. [CH. XVI. 
 
 statement of the amount, where the mortgage is given 
 for future advances, if the purpose for which they are 
 to be made is clearly described.* But if the amount 
 is given, the mortgage cannot be enforced for a larger 
 amount, as against subsequent purchasers and mortga- 
 gees.' It is likewise not required that the mortgage 
 should show on its face that it was given for future ad- 
 vances, if it is possible to ascertain from the description, 
 with the aid of extraneous evidence, what debts or what 
 amount of debt were intended to be secnred by the mort- 
 gage.* But although the amount and other particulars need 
 not be stated in the mortgage, means must be provided in 
 it, by way of reference to other papers, accounts or records, 
 for ascertaining all the essential particulars. Thus, mort- 
 gages have been held good, where they were intended to 
 secure a general indebtedness, and which was described in 
 the mortgage as " what I may owe on book," " all the 
 notes or agreements I now owe," <'all sums that the 
 mortgagee may become liable to pay," and the like.* And 
 
 1 Jarrattc. McDaniel, 32 Ark. 598; Hughes v. Worley, 1 Bibb, 200; 
 Faye v. Bank of Illinois, 11 111. 357; Hubbard v. Savage, 8 Conn. 215; 
 Shirras v. Craig, 7 Cranch, 34; United States v. Hooe, 3 Cranch, 73; 
 Preble ». Conger, 66 111. 370; Crane v. Demlng, 7 Conn. 387; Allen v. 
 Lathrop, 46 Ga. 133. But see, contra, Wilson v. Russell, 13 Md. 404; 
 Leeds v. Cameron, 3 Sumn. 488; N. H. Bank v. Willard, 10 N. H. 210. 
 
 2 Franklin v. Meyer, 36 Ark. 96; Bell v. Radc'ife, 32 Ark. 645. 
 
 ■■' Lawrence c. Tucker, 23 How. 14 ; Craig v. Tappin, 2 Sandf . Ch. 78 ; 
 Speer v. Skinner, 35 111. 282; Collins v. Carlile, 13 111. 254; Tison v. Peo- 
 ple's Saving & Loan Ass'n, 57 Ala. 323; Stone v. Lane, 10 Allen, 74; North 
 V. Crowell, 11 N. H. 251; McConnell ». Scott, 67 111. 274; Bank of Utica 
 V. Finch, 3 Barb. Ch. 293 ; Shirras v. Craig, 7 Cranch, 34 ; Monnot v. Ibert, 
 33 Barb. 24 ; Bodley v. Anderson, 2 Bradw. 450. But see, contra, Dlvver 
 V. McLaughlin, 2 Wend. 596; Walker v. Snedlker, 1 HofE. Ch. 145; James 
 V. Morey, 2 Cow. 246, 293. 
 
 ^ Page V. Ordway, 40 N. H. 253; Merrills v. Swift, 18 Conn. 257; Lewis 
 V. De Forrest, 20 Conn. 427; Vanmeter v. Vanmeter, 3 Gratt. 148; M'ch. 
 Ins. Co. V. Brown, 11 Mich. 265; Emery v. Owiugs, 7 Gill, 488; Esterly 
 V. Purdy, 50 How. Pr. 350; Mix v. Cowles, 20 Conn. 420; United States 
 V. Sturges, 1 Paine, 525; DeMott v. Benson, 4 Edw. Ch. 297; Booth v 
 376 
 
CH. XVI. j CHATTEL MORTGAGES. § 234 
 
 if it is necessary, parol evidence is admissible to identify 
 the mortgage debt, and to establish its correspondence wilh 
 the description. 1 But parol evidence is not admissible to 
 contradict the description by showing that the parties in- 
 tended to secure by the mortgage a debt which does not cor- 
 respond to, or fall within, the description of the mortgage 
 debt,^ and hence a totally false description cannot be aided 
 by parol evidence. Parol evidence is not admissible for the 
 purpose of making a description of the debt.-'' Nor is it 
 admissible to make a mortgage cover future advances, 
 which were not contemplated at the time of the execution 
 of the mortgage.* 
 
 If the mortgage is given for a larger sum than was 
 actually due, it is presumptive evidence of fraud, but 
 it is not conclusive. It may be shown that the larger 
 sum was given by mistake,' and in any event the mort- 
 
 Barnum, 9 Conn. 286; Machette v. Wanless, 1 Col. 225; Fisher ». Otis, 
 3 Chand. 83; Seymour v. Darrow, 31 Vt. 142; Shirras v. Caig, 7 Cranch, 
 34. 
 
 1 Clark V. Houghton, 12 Gray, 38 ; Pierce v. Parker, i Met. 80 ; Cush- 
 man v. Luther, 53 'N. H. 662; Clark v. Hyman, 65 Iowa, 23; Partridge v. 
 Swazey, 46 Me. 414; Quinn v. Schmidt, 91 111. 84; Dodge ». Potter, 18 
 Barb. 193; Melyin «. Fellows, 83 N. H. 401; Johns v. Church, 12 Pick. 
 557; Crafts v. Crafts, 13 Gray, 168; Hurdo. Robinson, 11 Ohio St. 38; N. 
 H. Bank v. Willard, 10 N. H. 210; Aull v. Lee, 61 Mo. 160; Babcock v. 
 Lisk, 57 111. 327 ; Doe v. McLoskey, 1 Ala. 708 ; Gill v. Pinney, 12 Ohio St. 
 38; Baxter v. Mclntire, 13 Gray, 166; Bell v. Fleming, IBeasL 13; Hall v. 
 Tufts, 18 Pick. 456; Jackson v. Bowen, 7 Cow. 13. 
 
 2 Morris v. Tlllson, 81 111. 607 ; Varney v. Hawes, 68 Me. 442 ; Barker 
 V. Buel, 5 Cush. 519. 
 
 8 FoUett V. Heath, 15 Wis 601 ; Shepardson v. Whipple, 107 Mass. 279 ; 
 Jewett V. Preston, 27 Me. 400; Babcock v. Lisk, 57 111. 327; Hall v. Tufts, 
 18 Pick. 455; Walker v. Paine, 31 Barb. 213; Storms v. Storms, 3 Bush, 
 77; Doyle v. White, 26 Me. 341. 
 
 * Monnot v. Ibert, 33 Barb. 24; Davenport v. McChesney, 86 N. Y- 
 243. 
 
 s Wood V. Scott, 55 Iowa, 114; Wooley v. Fry, 30 111. 158; Barkow 
 V. Sanger, 47 Wis. 500; Blakeslee v. Rossman, 43 Wis. 116; Butts v. 
 Peacock, 23 Wis. 359; Strauss v. Kranert, 56 111. 254; Kalk v. Fielding, 
 60 Wis. 339 ; Bell v. Prewitt, 62 111. 361 ; Kaysing v. Hughes, 64 111. 123. 
 
 377 
 
§ 236 CHATTEL MOETGAQES. [CH. XVI. 
 
 gaj^e can only be enforced for the amount which is 
 actually due.^ 
 
 While a mortgage can be made to secure one against a 
 contingent liability, which is not only itself uncertain, but 
 whose consequences in the shape of damages are also un- 
 certain, it has been held that the damages for the breach 
 of the condition of a mortgage must always be liquidated, 
 in order that the mortgage may be foreclosed by the mort- 
 gagee's sale under a power of sale; the reason being that, 
 in an ex parte proceeding, like a sale under a power of 
 sale, the unliquidated damages could not be liquidated.^ 
 In such a case, resort must be made to a court for fore- 
 closure. 
 
 § 235. Date of the mortgage. — If a mortgage be 
 dated, it is presumed that it was executed on the given 
 day ; but it is admissible to prove a mistake in the mort- 
 gage date.^ And if the mortgage contains no date, it is 
 always possible to prove by parol evidence when the mort- 
 gage was executed.* But it is not possible to show that the 
 day of execution was later than the date of acknowledg- 
 ment, unless you likewise prove an error in the latter date.^ 
 
 § 236. Formality of execution — Signing and seal- 
 ing. — The statute of frauds, in every provision for a 
 written instrument, requires it to be signed by the party to 
 be charged. This is so well known, that citations are un- 
 necessary. Hence a chattel mortgage would have to be 
 signed or subscribed by the mortgagor. If the statute 
 requires subscription instead of signing, the name would 
 
 1 National Bank v. Sprague, 20 N. J. Eq. 13; Kaysing v. Hughes, 64 
 111. 123. 
 
 2 Fowler v. Hoffman, 31 Mich. 215. 
 
 8 Foster v. Perkins, 42 Me. 168; Stonebreaker v. Kerr, 40 Ind. 186; 
 Partridge i). Swazey, 46 Me. 414; Clark v. Houghton, 12 Gray, 38. 
 4 Burdick v. Hunt, 25 Me. 419. 
 
 « Merrill v. Dawson, Hemp. 563, See Durfee v. Grinuell, 69 111. 371. 
 378 
 
CH. XVI. J CriATTKL MOllTGAGES. § 237 
 
 have to be written at the bottom of or under the mort- 
 gage. Otherwise, the signature may appear in any part 
 of the instrument. 
 
 But, although it is quite common for chattel mortgages 
 to be sealed, and even though the statutory forms of such 
 mortgages may [as in Maryland] contain seals, in the ab- 
 sence of an express statutory requirement, the validity of 
 the chattel mortgage is in nowise affected by the absence 
 of a seal.^ 
 
 § 237. Delivery and acceptance, — of the mortgage 
 are concurrent acts, both of which are essential to the val- 
 idity of the mortgage ; the acceptance of the mortgagee 
 being as necessary as the transfer or delivery of the deed 
 by the mortgagor.^ It is not necessary for either of the 
 parties to do these acts in person. The delivery, as well as 
 the acceptance, may be done for the mortgagor and mort- 
 gagee respectively by their duly authorized agent.' 
 
 While a delivery of the mortgage to the recorder for 
 registration is not in itself sufficient to support a presump- 
 tion that the mortgagee has accepted the mortgage, and 
 hence not sufficient to pass title to the mortgaged prop- 
 erty,* not even when it is shown that the mortgagee knows 
 of the execution of the mortgage and of its delivery to 
 the recorder ; ^ yet if the delivery to the recorder is in pur- 
 
 1 Despatch Line of Packets v. Bellamy Mfg. Co., 12 N. H. 205; 
 Tapley v. Butterfleld, 1 Met. 515; Gibson v. Warden, 14 Wall. 244; 
 Gerry v. White, 47 Me. 504; Sherman v. Fitch, 98 Mass. 59, 64; Milton 
 V. Mosher, 7 Met. 244. 
 
 2 Jewett t>. Preston, 27 Me. 400; Fosters. Perkins, 42 Me. 168; 
 Welch V. Sackett, 12 Wis. 243; Miller v. Blinebury, 21 Wis. 676; Mc- 
 Cutchin V. Piatt, 22 Wis. 561; Sargeant v. Solberg, 22 Wis. 132. 
 
 3 Sargeaat v. Solberg, 22 Wis. 132. 
 
 * Day V. Griffith, 15 Iowa 104; Oxnard v. Blake, 45 Me. 607; May- 
 nard v. Maynard, 10 Mass. 456; Dole v. Bodman, 3 Met. 139; McCourt 
 V. Myers, 8 Wis. 236; Cobb v. Chase, 54 Iowa, 253. 
 
 6 Cobb V. Chase, 54 Iowa, 253. 
 
 379 
 
§ 238 CHATTEL MORTGAGES. [CH. XVI. 
 
 suance of the agreement of the parties to the mortgage, 
 there will be sufficient evidence of delivery and accept- 
 ance, in order to pass title.^ The possession of the note 
 and mortgage by the mortgagee supports the presumption 
 that they have been duly delivered and accepted. ^ On the 
 other hand, the possession of these papers by the mort- 
 gagor raises the presumption either that they have not 
 been delivered, or that they have been satisfied.* As long 
 as the rights of third parties have not intervened, the mort- 
 gagee may accept the mortgage at any subsequent time.'* 
 It is a question of fact for the jury whether there has been 
 a delivery and acceptance.^ 
 
 If the mortgage is given to secure two or more debts 
 payable to different persons, it is not necessary to deliver 
 the mortgage to each mortgagee. Delivery to one of 
 them is sufficient.' 
 
 § 238. Delivery and possession of mortgaged chat- 
 tels. — At common law, the chattel mortgage, lilie any 
 other sale, could not be enforced against third persons, who 
 acquire interests in the property without notice of its exist- 
 ence, unless the chattels mortgaged were delivered into the 
 possession of the mortgagee. The retention of the posses- 
 sion by the mortgagor made the mortgage prima facie 
 
 1 Cooper V. Jackson, 4 Wis. 537; Jordan v. Farnsworth, 15 Gray, 517; 
 Everett v. Whitney, 55 Iowa, 146; Thayer v. Stark, 6 Cush. 11. But the 
 agreement must relate specifically to the mortgage which is recorded, in 
 order to be equivalent to an acceptance. An agreement that whenever 
 a mortgage is executed it shall be delivered to the recorder, is held to be 
 insufficient proof of acceptance. Cobb v. Chase, 54 Iowa, 253; Day v. 
 Griffith, 15 Iowa, 104. 
 
 2 Molineuxfl. Coburn, 6 Gray, 124; Foster v. Perkins, 42 Me. 168. 
 
 3 Bullock V. Narrott, 49 111. 62. 
 
 * Sherman v. Fitch, 98 Mass. 58; Dole i;. Bodman, 3 Met. 139; Brown 
 V. Piatt, 8 Bosw. 324. 
 
 s Molineux v. Coburn, 6 Gray, 124; Roberts v. Jackson, 1 Wend. 478; 
 Jordan v. Farnsworth, 15 Gray, 517. 
 
 * Hubby V. Hubby, 6 Cush. 516. 
 
 380 
 
CH. XVI. j CHATTEL MORTGAGES. § 238 
 
 invalid against subsequent purchasers and creditors, although 
 valid between the parties to the mortgage and third persons 
 having notice of the mortgage.^ The recording laws of 
 the different States, to which particular reference is given 
 in a subsequent section,^ now provide that the mortgage 
 shall be absolutely void as to third persons, unless the 
 mortgage has been duly recorded or filed, or the mortgaged 
 chattels have been delivered into the possession of the 
 mortgagee. These requirements are in the alternative, 
 and the compliance with one renders compliance with the 
 other unnecessary.^ Although an immediate compliance 
 with one of these requirements has been held under the 
 provisions of the special statutes to be necessury to make 
 the mortgage valid as against subsequent purchasers and 
 creditors,* the better and the generally prevailing opinion, 
 is that an unrecorded chattel mortgage is altogether valid, if 
 the mortgagee takes possession before any third person has 
 acquired adverse rights therein by sale or by attachment.^ 
 A delivery of a part of the mortgaged goods to the mort- 
 gagee has been held to render the mortgage valid ^?"o tanto,^ 
 
 ^ Russell u. Fillmore, 15 Vt. 130; SturgiS'B. Warren, 11 Vt. 433; Haven 
 V. Low, 2 N. H. 13; Morrow v. Turney, 35 Ala. 131; Homes i;. Crane, 2 
 Pick;. 607 ; Woodward v. Gates, 9 Vt. 358. 
 
 2 See post, § 239. 
 
 ' Frank «. Miner, 50 HI. 444; Bullock v. Williams, 16 Pick. 33; Forbes 
 V. Parker, 16 Pick. 462; Shurtleff v. Willard, 19 Pick. 202. 
 
 * Waller v. Rossman, 45 Mich. 333 ; Williamson v. N. J. Southern R. 
 R. Co., 28 N.J. Eq. 277; s. c. 29 N. J. Eq. 311; Currie v. Knight, .34 N. J. 
 Eq. 485, 486. 
 
 « Cobel V. Nonemaker, 78 Pa. St. 501 ; Frank v. Miner, 50 HI. 444 ; 
 Brown v. Webb, 20 Ohio, 389; Parsell v. Thayer, 39 Mich. 467; Clute v. 
 Steele, 6 Nev. 339; Fields;. Baker, 12 Blatohf. 438; Cameron i). Marvin, 
 26 Kan. 612; Wood v. Weimar, 104 U. S. 786; Hamlin v. Jerrard, 72 Me. 
 C2, 79; Greeley v. Reading, 74 Mo. 309; Baldwin v. Flash, 58 Miss. 593; 
 Hansett v. Harrison, 105 U. S. 405 ; Brown v. Piatt, 8 Bosw. 324 ; Moresi 
 V. Swift, 15 Nev. 215; Eastman v. Water Power Co., 24 Minn. 437; Chase 
 V. Denny, 130 Mass. 566; MoTaggart v. Rose, 14 Ind. 230; Chipnon u. 
 Feikert, 68 111. 284. 
 
 « Stewart v. Smith, 00 Iowa (1882), 275. 
 
 381 
 
§ 238 CHATTKL MORTGAGES. [CH. XVX. 
 
 although a contrary opinion has been rendered by an emi- 
 nently respectable authority ^ on the ground that the mort- 
 gage itself is void if any part of the mortgaged goods is 
 retained in the possession of the mortgagor. 
 
 The delivery of the goods to the mortgagee not only 
 avoids the defect, arising from a want of record, but like- 
 wise makes the mortgage valid, although it might be other- 
 wise invalid on account of insufficient description of the 
 property,^ the insufficient execution of the mortgage, and 
 the like.* What will constitute a sufficient delivery of the 
 possession of the mortgaged goods, in order to satisfy the 
 requirement of the law, will depend in f jrhrisa upon the 
 facts of each case. It is clear that the delivery need not 
 be made to the mortgagee in person. It may be made to 
 some duly authorized agent * or trustee ^ of the mortgagee. 
 It has been held to be permissible for the mortgagee to 
 employ the mortgagor to act as his agent in the care of the 
 goods, especially when the mortgagee has removed the goods 
 to some place of deposit selected by himself,® But the 
 general rule undoubtedly prohibits such an employment of 
 the mortgagor operating as a change of possession,' unless 
 the change of ownership has, by a change in books, sign- 
 board, etc., been sufficiently notorious, as to support the 
 
 1 Benedict v. Smith, 10 Paige, 126. 
 
 2 MoiTow V. Reed, 30 Wis. 81, 84. See ante, § 233. 
 
 ' Nash V. Norment, 5 Mo. App. 545 ; Greeley v. Reading, 74 Mo. 309 ; 
 Cameron v. Mar'win, 26 Kan. 624. See Peltee v. Dustin, 58 N. H. 309 ; 
 Janvin v. Fogg, 49 N. H. 351. 
 
 4 MePortland v. Read, 11 Allen, 231; Horner v. Stout, 5 Cal. 166; 
 Carpenter v. Snelling, 97 Mass. 452; Wheeler ». Nlcholls, 32 Me. 233. 
 See Train v. Wellington, 12 Mass. 495. 
 
 6 Jones V. Swayze, 42 N. J. L. 279. 
 
 8 Dayton v. People's Savings Bank, 23 Kan. 421. 
 
 ' Steele v. Benham, 84 N. Y. 634; Hanford v. Archer, 4 Hill, 271; 
 Pickard v. Marriage, L. R. 1 Ex. T). 364; DoyleiC. Stevens, 4 Mich. 87; 
 Flagg V. Pierce, 28 N. H. 348; Porter ». Parmley, 52 N. Y. 185; Camp v. 
 Camp, 2 Hill, 628 ; Brunswick v. McClay, 7 Neb. 137. 
 382 
 
CH. XVI. J CHATTEL MORTGAGES. § 238 
 
 presumption that no one has been misled by the continuance 
 of the mortgagor's actual possession.^ Constructive de- 
 livery by the mortgagor is never sufficient to render the mort- 
 gage valid as against third persons. The delivery must be 
 as actual and notorious as the circumstances will permit.^ 
 Ponderous articles even must be given an actual delivery, 
 although of course, it need not be a manual delivery ; ' and 
 if they cannot be readily removed, it is held to be a suffi- 
 cient delivery for them to be pointed out to the mortgagee, 
 with the understanding that the possession has been there- 
 by transferred.* If the warehouse, in which the goods are 
 stored, is turned over to the mortgagee, it would necessarily 
 constitute a delivery of the goods themselves.^ But aeon- 
 current possession of the goods by the mortgagor and mort- 
 gagee is insufficient.® 
 
 If the goods are in the possession of a third person as 
 agent of the mortgagor, there is a sufficient transfer of 
 possession to the mortgagee, if by the understanding of all 
 the parties concerned the bailee undertakes in the future to 
 hold the goods for the mortgagee.' But the party in 
 
 ^ Doyle V. Stevens, 4 Mich. 87. Sec Moody v. Haselden, 1 S. 
 C. 129. 
 
 2 Crandall u. Brown, 18 Hun, 461; Steele v. Benham, 84 N. Y. 634; 
 National Bank v. gprague, 20 N. J. Eq. 13 ; Topping v. Lynch, 2 Kob. 484 ; 
 Nicholson v. Temple, 4 Pugs. & B. (N. B.) 248 ; Fraser v. Gilbert, 11 Hun, 
 634; Ceas v. Bramley, 18 Hun, 187. 
 
 3 Anderson v. Brenneman, 44 Mich. 198; Menzies v. Dodd, 19 Wis. 
 343; Doak v. Brubaker, 1 Nev. 218. 
 
 ' Morrow v. Eeed, 30 Wis. 81 ; Ticknor v. McClelland, 84 111. 471 ; Bull 
 V. Griswold, 19 HI. 631; Thompsons. Wilhite, 81 111.356. But see 
 Glttings V. Nelson, 86 HI. 596. 
 
 s Weaver v. Eeilly, 21 Hun, 585; Smith v. Skeary, 47 Conn. 47. 
 
 6 Sumner v. Dalton, 58 N. H. 295; Grifllth ». Douglass, 73 Me. 532; 
 Hale V. Sweet, 40 N. Y. 97; Flagg v. Pierce, 58 N. H. 348. 
 
 ' Morse t>. Powers, 17 N. H. 286; Smith v. Post, 1 Hun, S16; s. c. 3 
 T. & C. 647; Nash v. Ely, 19 Wend. 523; Doak v. Brubaker, 1 Nev. 218; 
 Wheeler v. Nichols, 32 Me. 233; Hodges v. Hurd, 47 111. 363; Goodwin v. 
 Kelly, 42 Barb. 194; Gaar v. Hurd, 92 111. 315. 
 
 383 
 
§ 239 CHATTEL MORTGAGES. [CH. XVI. 
 
 possession must be notified of the change of possession, 
 in order to be sufficient.^ 
 
 If anything is necessary for the purpose of specializing 
 the mortgaged chattels, such as counting, measuring or 
 separating from a larger quantity what is covered by the 
 mortgage, there can be no delivery and transfer of title 
 any more than in the case of absolute sale ,2 unless by an 
 actual delivery of the whole, the power of counting, measur- 
 ing or separating his share is reposed in the mortgagee.' 
 The burden of proving a delivery or change of possession 
 is thrown on the mortgagee, who claims title by such change 
 of possession.* 
 
 § 239. The general provisions of the recording law. — 
 
 In order that the mortgagor of chattels might retain the 
 possession of them without invalidating the mortgage, and 
 thus be enabled by the prosecution of his business or the 
 manipulation of his property, to secure the means of paying 
 off the debt, to secure which the chattel mortgage had been 
 given; it is now provided by statute in most of the States, 
 if not in all,^ that if a chattel mortgage is recorded or filed, 
 in strict compliance with the requirements of the recording 
 act, the mortgage is good and valid against subsequent pur- 
 chasers and creditors. In some of the States, the provision 
 is that the mortgage shall be recorded, whereas in other 
 States the mortgage is required to be filed with the clerk of 
 court or recorder. Eecording requires transcription in the 
 public books of record ; while in filing a paper with a public 
 officer, nothing more is required than that the paper shall 
 
 1 Sheldon v. Warner, 26 Mich. 403. 
 
 2 Frost V. WoodrufE, 54 111. 155; Seckel v. Scott, 66 111. 106. 
 
 8 See Crofoot v. Bennett, 2 N. Y. 258; Weld v. Cutter, 2 Gray, 195; 
 Tyler v. Strang, 21 Barb. 198; Bullock v. Williams, 16 Pick. 33. 
 
 * McCarthy v. Grace, 23 Minn. 182. 
 
 5 Unless recently enacted, no provision for recording chattel mortgages 
 has been made in Pennsylvania, Louisiana and Nevada. Jones on Chattel 
 Mortgages, § 190. 
 384 
 
.CH. XVI. J CHATTEL MORTGAGES. § 239 
 
 he put iuto his possession, and a memorandum be made by 
 him in such a way that any one interested in the matter 
 may ascertain the presence and existence of the mortgage. 
 Where, however, the statute requires the mortgage to be 
 filed, instead of being recorded, it usually contains the 
 further requirement that to be valid against subsequent 
 purchasers and creditors, the mortgage, the original or a 
 copy , must be refiled at stated periods , annually or biennial ly , 
 the object being to give renewed notices of the condition of 
 the property.^ The copy of the mortgage is required to be 
 accompanied by a full and accurate statement of the interest 
 of the mortgagee.^ 
 
 If the mortgagor resides within the State, the mortgage 
 must be recorded or filed in the county in which he resides 
 when the mortgage was executed ; but if the mortgagor 
 lives outside of the State, the mortgage must be recorded 
 or filed in the county in which the mortgaged chattels were 
 at the time of the execution of the mortgage.^ Any change 
 in the mortgagor's residence or in the location of the chat- 
 tels after execution of the mortgage will not affect the 
 question as to place of record.* When some of the mort- 
 
 1 See Newell v. Warren, 44 N. Y. 244 ; Wlsser v. O'Brien, 3 J. & Sp. 
 149; Lee v. Huntoon, 1 Hofe. Ch. 447; Meech v. Patchin, 14 N. Y. 71; 
 Marsden v. Cornell, 62 N. Y. 215; Stockham v. Allard, 4 T. & C. 279; 
 s. c. 2 Hun, 67; Fitch o. Humphrey, 1 Den. 163; Seaman v. Eager, 16 
 Ohio St. 209 ; Day v. Munson, 14 Ohio St. 488 ; Briggs v. Mette, 42 Mich. 
 12; Griffin v. Forest, 49 Mich. (1882) 309. 
 
 2 Fitch V. Humphrey, 1 Den. 163; Marsden v. Cornell, 62 N. Y. 215; 
 Piatt V. Stewart, 13 Blatchf. 481, 495; Newell v. Warner, 44 Barb. 258. 
 But see Patterson v. Gillies, 64 Barb. 563; Dillingham v. Bolt, 37 N. Y. 
 198; Ely ». Carnley, 19 N. Y. 496. If the statement contains a reference 
 to another document which is filed with the statement, the statements in 
 both papers will be taken together as a sufficient compliance with the 
 law. Beers o. Waterbury, 8 Bosw. 396"; Miller v. Jones, 15 Nat. Bank 
 Kep. 150; Briggs v. Mette, 42 Mich. 12. 
 
 * Boyd». Becky, 29 Ala. 703; Hicks v. Williams, 17 Barb. 523; Wallen 
 V. Cossman, 45 Mich. 333; Powers v. Freeman, 2 Lans. 127. 
 
 ■* Brigham v. Weaver, 6 Cush. 298 ; Whitney v. Heywood, 5 Gush. 82 ; 
 Hoitji. Eenrick, UN. H. 285; Hicks ». Williams, 17 Barb. 523; Elson 
 
 385 
 
§ 239 CHATTEL MOUTGAGES. [CH. XVI. 
 
 gagors are residents of the State, and others arc non-resi- 
 dents, both provisions of the law have to be complied with. 
 and the mortgage recorded or filed, not only where the 
 mortgagors reside, but also where the goods are situated.* 
 The statutes generally provide for this alternative record- 
 ing, where the mortgagors are residents and non-residents, 
 but if a statute provides for the recording or filing of a 
 chattel mortgage only in the county in which the mortgagor 
 resides, there cannot be in that State any effectual record 
 of a chattel mortgage, where the mortgagor is a non-resi- 
 dent.^ The recording law also generally provides that a 
 mortgage to be valid as against creditors and purchasers 
 must be i-ecorded within a specified time after execution^ 
 and when that is the provision, the record is ineffectual for 
 all purposes if not made within the statutory period.^ But 
 where the statute simply provides that the mortgage shall 
 not be enforcible against subsequent purchasers and credit- 
 ors, who acquire interests in the mortgaged property after 
 the execution of the mortgage and before recording, unless 
 it be filed for record within the statutory period, the failure 
 to record within that time will only have the effect of post- 
 
 V. Banier, 56 Miss. 394; Bevans v. Bolton, 31 Mo. 437; Harris v. Jones, 
 83 N. C. 317; Offutt v. Flagg, ION. H. 46; Feustc. Eowell, 62 Mo. 524; 
 Smiths. McLean, 24 Iowa, 322; Simpson v. Morris, 3 N. C. 411; Pease 
 V. Odenkirchen, 42 Conn. 416; Barrows v. Turner, 50 Me. 127. 
 
 1 De Courcey v. Collins, 21 N. J. Eq. 357; affirming s. o. 19 N. J. Eq. 
 115, and the mortgage must be recorded in every county in which a 
 mortgager resides. Stewartij. Piatt, 101 U. S. 731; Rich v. Roberts, 48 
 Me. 348; s. c. 50 Me. 395; Morrill v. Sanford, 49 Me. 566; Briggs v. 
 Leitelt, 41 Mich. 79. 
 
 2 Smith V. Moore, 11 N. H. 55. 
 
 3 Chenyworth v. Daily, 7 Ind. 284; McCord v. Cooper, 30 Ind. 9; 
 McTaggart v. Rose, 14 Ind. 230; Lockwood v. Slevin, 26 Ind. 124; 
 Sidew 13. Bible, 43 Ind. 230. The same requirement is generally made in 
 regard to refiling. The mortgage must be reflled within the given period, 
 in order to be effectual, neither before nor afterwards. Newell v. 
 Warner, 44 Barb. 258; Mitchie v. Townsend, 2 Sandf. 299; National Bank 
 V. Sprague, 20 N. J. Eq. 13. 
 
 386 
 
CH. XVI. J CHATTEL MORTGAGES. § 239 
 
 poning the lien of the mortgage to the claims of the 
 purchat-ers and creditors mentioned.^ If the statute re- 
 quires the clerk to miuute ia his book and on the mort- 
 gage the time when the mortgage is received, there is 
 no effectual record of the mortgage if he does not 
 make these minutes, as long as the mortgage is not 
 yet recorded.'' The general rule is that the notice by 
 record is secured from the time that the mortgage is left 
 with the proper officer for record,^ and the mortgagee's 
 rights are in no wise affected by the officer's neglect of 
 duty in making the record.* The index is no part of the 
 record, unless the recording act expressly required it as a 
 part of the record ; and hence, any mistake in the index or 
 failure to index the mortgage does not affect the validity 
 of the record.* 
 
 The recording law generally provides specially what in- 
 struments shall be received for record, and in order that 
 the record may furnish constructive notice of any recorded 
 
 ' Hardaway v. Semmer, 25 Ga. 305 ; Johnson c;. Patterson, 2 Woods, 
 443. The same provision is found in other States. 
 
 2 Handly v. Howe, 22 Me. 560; Holmes v. Sprowl, 31 Me. 73; Head v. 
 Goodwin, 37 Me. 181; Jones v. Parker, 73 Me. 248; McLaren v. Thomp- 
 son, 40 Me. 284. But see Smith v. Waggoner, 50 Wis. 155, where a 
 similar statutory provision was held to be directory, 3,nd a failure to 
 comply with it did not invalidate the record. 
 
 ° Craig u. Dimock, 47 El. 308; Miller v. Whitson, 40 Mo. 97; Jordan 
 V. Farns worth, 15 Gray, 517; McGregor v. Hall, 3 St. & P. 397, Wilson 
 V. Leslie, 20 Ohio, 161; Gorham v. Summers, 25 Mian. 81; Parker ». 
 Palmer, 13 R. I. 359. 
 
 " People V. Bristol, 35 Mich. 28 ; Turner v. McFee, 61 Ala. 468 ; Neele 
 V. Berryhill, 4 How. Pr. 16; Dodge v. Potter, 18 Barb. 193; Dikerman v. 
 Puckhafer, 1 Abb. Pr. (n. s. )32. 
 
 s Chase i;. Bennett, 58 N. H. 428 ; Jordan l». Hamilton Co. Bank, 11 
 Neb. 499; Dikeman v. Puckhafer, 1 Daly, 489; 1 Abb. Pr. (n. s.) 32. See 
 also Curtis v. Lyman, 24 Vt. 338; Dodge v. Potter, 18 Barb. 193; Mutual 
 Life Ins. Co. v. Dake, 1 Abb. N. C. 381; Green v. Corrington, 16 Ohio St. 
 548; Throckmorton v. Price, 28 Tex. 605; Bishop v. Schneider, 46 Mo. 
 472; Shell v. Stein, 76 Pa. St. 398. Contra, Gwyn v. Turner, 18 Iowa, 1; 
 Walley v. Small, 25 Iowa, 184; Pungleu. Dunn, 37 Wis. 449. 
 
 387 
 
§ 239 CHATTEL MORTGAGES. [CH. XVI. 
 
 instrument, the instrument must be one that can under the 
 law be admitted to the record. The record does not fur- 
 nish constructive notice of one which has been improperly 
 or unlawfully admitted to the record. Thus, if the record- 
 ing act requires the mortgage to be acknowledged before 
 being admitted to record, the record of an unacknowledged 
 or improperly acknowledged mortgage is ineffectual to 
 protect the rights of the mortgagee.^ 
 
 If the instrument is a mortgage of chattels it can be re- 
 corded under the provision for the record of such mort- 
 gages, whatever may be the unusual form of the instru- 
 ment, and a deed, absolute on its face, if in fact intended 
 to be a mortgage, will be admitted to this record as a mort- 
 gage.^ The record of such a deed is valid, although 
 the recording act requires the separate defeasance, if there 
 be one, to be recorded, in order to make the record effect^ 
 ual, provided, of course, that the defeasance has never 
 been reduced to writing.' 
 
 If the mortgage covers both real and personal property, 
 the mortgage should be recorded both as a real estate 
 mortgage and as a chattel mortgage.* But this double 
 record is not necessary unless the recording law requires 
 this expressly or by necessary implication.^ 
 
 ' Hill V. Gilman, 39 N. H. 88; Becker v. Anderson, 11 Neb. 493; Frant 
 V. Miner, 50 111. 444; McDowell v. Stewart, 83 111. 538; Selking v. Hebel, 
 1 Mo. App. 340; Koplin v. Anderson, 88 111. 120; Porter w. Dement, 35 
 lU. 478; Cook v. Eager, 3 Col. 683; Bailey v. Godfrey, 54 111.507; 
 Nichols V. Hampton, 46 Ga. 263; Darst v. Gale, 83 111. 136; Beaman v. 
 Whitney, 20 Me. 413; Wilson v. Traer, 20 Iowa, 231; Hammers v. Dole, 
 61 111. 307; Flynn v. Hathaway, 65 lU. 462; Bullock ». Narrott, 49 111. 
 62; Durfee v. Grimmell, 69 111. 371. 
 
 2 Bird V. Wilkinson, 4 Leigh, 266; Dukes ». Jones, 6 Jones iN. C.) 
 L. 14; Kuhn 1). Graves, 9 Iowa, 303; Sanders u. Pepoon, 4 Fla. 465; Shaw 
 V. Wilshire, 65 Me. 485 ; overruling Knight v. Nichols, 34 Me. 208. 
 
 8 Ing V. Brown, 3 Md. Ch. 521 ; Gaither v. Mumford, Taylor (N. C), 
 167. 
 
 * Stewart v. Beale, 7 Hun, 405 ; s. c. 68 N. Y. 629. 
 
 6 Anthony v. Butler, 13 Pet. 423. 
 388 
 
CH. XVI. J CHATTEL MORTGAGES. § 239 
 
 As a general rule, the recording law does not provide 
 for the recording of any other but mortgages of goods and 
 other tangible property. The law does not apply to mort- 
 gages of choses in action.* Nor does the law apply to 
 the mortgage of the capital stock of a corporation, ^ nor to 
 the mortgage of a legacy.* 
 
 If a schedule is made a part of the mortgage, the failure 
 to record it along with the mortgage will invalidate the 
 record of the mortgage.* But the schedule need not be 
 recorded, if it ia merely referred to in the mortgage, but 
 it is not made a part of it.^ It is also unnecessary to re- 
 cord the written agreement, to secure the performance of 
 which the mortgage was given.* 
 
 Finally, while it may be stated generally that the validity 
 of the mortgage of personal property will be determined 
 by the law of the place of contract, and a change in the res- 
 idence of the mortgagor or in the location of the property 
 will not subject the question to the law of the latter place,' 
 
 > Kirkland o. Brune, 31 Gratt. 126; Newby v. Hill, 2 Met. (Ky.) 530; 
 Bank of United States v. Huth, 4 B. Mon. 423, 448; Vanmeter v. McFad- 
 din, 8 B. Mon. 435; Monroe v. Hamilton, 60 Ala. 233; Bacon v. Bonham, 
 27 N. J. Eq. 209; Windsor ». McLellan, 2 Story, 492; Marsh ». Wood- 
 bury, 1 Met. 436. 
 
 2 Williamson v. N. J. South. R. E. Co., 26 N. J. Eq. 311; Rowland v. 
 Plummer, 50 Ala. 182. 
 
 ' Bacon v. Bonham, 27 N. J. Eq. 209. 
 
 * Sawyer v. Pennell, 19 Me. 167. 
 
 • Chapin v. Cran, 40 Me. 561. 
 
 6 Bryan v. Gordon, 11 Mich. 531 ; Shuler v. Boutwell, 18 Hun, 171. 
 
 ' Jeter v. Fellowes, 32 Pa. St. 465; Wilson v. Carson, 12 Md. 54; Kan- 
 agac. Taylor, 7 Ohio St. 134; Ryan v. Clanton, 3 Strobh. L. 411; Feust 
 V. Eowell, 62 Mo. 624; Ferguson v. Clifford, 37 N. H. 86; OfEutt v. 
 Flagg, 10 N. H. 50; Vanbuskirk v. Hartford F. Ins. Co., 14 Conn. 583; 
 Martin v. Hill, 12 Barb. 631 ; Ames Iron Works v. Warren, 76 Ind. 512; 
 Edgerlyi). Bush, 81 N. Y. 199; Blystone ?j. Burgett, 10 Ind. 28; Simms 
 V. McDee, 25 Iowa, 341 ; Smith v. McLean, 24 Iowa, 322 ; Arnold v. Pot- 
 ter, 22 Iowa, 194; Hall v. Pillow, 31 Ark. 32; Beall v. Williamson, 14 
 Ala. 55; Barker v. Stacy, 25 Miss. 471 ; R. I. Central Bank v. Danforth, 
 14 Gray, 123; Langworthy v. Little, 12 Cush. 109; Cushmau ». Luther, 53 
 
 389 
 
§ 240 CHATTEL MORTGAGES. [CH. XVI. 
 
 if the mortsraee was executed in a State other thiin that in 
 which the property was situated, the validity of the mort- 
 gage is determined by the law of the place where the prop- 
 erty was situated.^ 
 
 § 240. The Effect of recording a mortgage. — The ob- 
 ject of the recording acts is to furnish to the parties the 
 opportunity of leaving the mortgaged property in the 
 hands of the mortgagor, without invalidating the mortgage 
 as against the subsequent purchasers and attaching credit- 
 ors of the mortgagor, the common-law rule being that 
 the retention of the possession by the mortgagor was 
 presumptive evidence of fraud. Hence it is only required 
 to record the mortgage, where the mortgagor desires to re- 
 tain the possession of the mortgaged property, and the 
 mortgage is still enforcible against subsequent purchasers 
 and creditors, although unrecorded, if the possession has 
 been transferred to the mortgagee before some third per- 
 son has acquired an opposing interest in the property.^ In 
 a few of the States, the statute does not make the record- 
 ing of the mortgage an equivalent of a delivery of the pos- 
 
 N. H. 562; Nichols v. Mase, 25 Hun, 640; Clark v. Tucker, 2 Sandf. 
 157; Tyler v. Strang, 21 Barb. 198; Bank of United States v. Lee, 13 
 Pet. 103. 
 
 1 Clark V. Tarbell, 68 N. H. 88; Green v. Van Buskirk, 7 Wall. 139; 
 Martina. Potter, 34 Vt. 87; Guillandtr ti. Howell, 85 N. Y. 657; Golden 
 V. Cockrll, 1 Kan. 259; Whitman v. Conner, 40 N. Y. Sup. Ct. 339; 
 Rice V. Courtis, 32 Vt. 460; Hardaway v. Semmes, 38 Ala. 657. See Den- 
 ny j). Faulkner, 22 Kan. 89; and confro, Runyon v. Groshon, 12 N. J. 
 Eq. 86 ; Blystone v. Burgett, 10 Ind. 28 ; Ames Iron Works v. Warren, 
 76 Ind. 512. 
 
 2 Promme v. Jones, 13 Iowa, 474; Miller v. Whitson, 40 Mo. 97; Mor- 
 rill V. Sanford, 49 Me. 566; Harrington u. Brittan, 23 Wis. 541; Donald- 
 son ». Johnson, 2 Claud. (Wis.) 160; Cotton v. Marsh, 3 Wis. 221; 
 Bullocks. Williams, 16 Pick. 33; Forbes v. Parker, 16 Pick. 462; Crooks 
 V. Stuart, 2McCrary, 13; Robinson v. Elliott, 22 Wall. 513; Feust v. Ro- 
 well, 62 Mo. 524. See ante, §239. See, also, to same effect. Coles v. Clark, 
 SCush. 399; Cooper ». Brock, 41 Mich. 488; Morrow v. Reed, 30 Wis. 
 81. 
 
 390 
 
CH. XV[.J CHATTEL MORTGAGES. § 240 
 
 session in rebutting the legal presumption of fraud, arising 
 from the retention of the possession by the mortgagor ; 
 but simply requires the mortgage to be recorded in order 
 to permit the still existing presumption of fraud to be re- 
 butted by evidence of good faith. The statute simply 
 <' adds another to the grounds on which a mortgage of 
 personal chattels shall be void." ^ 
 
 But even though the chattel mortgage be not recorded 
 and the possession of the property retained by the mort- 
 gagor, yet the mortgage is not absolutely void. It may 
 still be enforced between the parties, and as against all 
 others who do not come within the definition of attaching 
 creditors and bona fide purchasers for value and without 
 notice of the prior mortgage.^ The failure to record the 
 mortgage or to take possession of the mortgaged goods, 
 does not prevent the mortgagee from acquiring title to the 
 goods. He is simply estopped from setting up his really 
 superior title against a subsequent purchaser or attaching 
 creditor.^ The mortgage is valid between the parties to it, 
 
 1 "Woodv. Lowry, 17 Wend, 492; Horton c. ■Williams, 21 Minn. 187 
 Marsh v. Barley, 13 Neb. (1882) 261; Pyle v. Warren, 2 Neb. 2il 
 Brunswick v. McClay, 7 Neb. 137; Turner v. Killian, 12 Neb. 580. 
 
 2 Johnson v. Jeffries, 30 Mo. 423; Machette v. Wanless, 2 Col. 169 
 ClagettB. Salmon, 5 G. & J. 314; Hackett v. Manlove, 14 Cal. 85; Will 
 lamsons. N.J. South. E. E. Co.,26N. J. Eq. 398; Smiths. Moore, UN 
 H. 55 ; Wilson v. Leslie, 20 Ohio, 161 ; Kilbourne v. Fay, 29 Ohio St. 264 
 McTaggart v. Eose, 14 lud. 230; Badger v. Batavia Paper Mfg. Co., 70 
 111. 302; Porter v. Dement, 35 111. 478; Forest B. Tinkham, 29 111. 141 
 Fuller D.Paige, 26 III. 358; Hudson v. Warner, 2 Har. & G. 415; West 
 cott V. Gun, 4 Duer, 107 ; Hayman v. Jones, 7 Hun, 238 ; Beeman v. Law 
 ton, 37 Me. 543; Frank v. Miner, 50 111. 444; Griffin v. Wertz, 2 Bradw. 
 487; Davis u. Ranson, 26 111. 100; Lemay v. Williams, 32 Ark. 166; Hall 
 V. Snowhill, 14 N.J. L. 8; Stewart •<;. Piatt, 101 U. S. 731; Sawyer », 
 Turpin, 91 H. S. 114; Winsor v. McLellan, 2 Story, 492; Smith v. ,4cker, 
 23 Wend. 653; Stephenson v. Browning, 48 111. 78; GafE v. Harding, 48 
 111. 148. 
 
 s Pratt ». Harlow, 16 Gray, 379; Moses v. Walker, 2 Hilt. 536; John- 
 son V. Jeffries, 30 Mo. 423; Brackett ». BuUard, 12 Met. 308; Hayman v. 
 Jones, 7 Hun, 238. 
 
 301 
 
§ 240 CHATTEL MORTGAGES. [cil. XVI. 
 
 even though it is actually fraudulent as to the mortgagor's 
 creditors.^ 
 
 The unrecorded mortgage may likewise be enforced 
 against the personal representatives of the mortgagor,^ 
 although as against creditors of the deceased, for whose 
 benefit, primarily, the personal representatives may be 
 said to have acquired the personal property of the 
 deceased debtor, the unrecorded mortgage has been held to 
 be invalid.^ 
 
 The general rule is that an unrecorded mortgage is valid 
 against creditors, as long as they do not levy on, or attach, 
 the mortgaged property, where the mortgage has been exe- 
 cuted in good faith and for a valid debt.* But there are 
 some authorities, which maintain that such a mortgage is 
 invalid as against a creditor, whose claim has accrued after 
 execution of the mortgage, and before recording or filing.^ 
 
 Whether the unrecorded mortgage can be enforced 
 against the general creditors through the voluntary assignee, 
 or assignee in bankruptcy, who takes and holds the prop- 
 erty of the debt in trust for his creditors, is doubtful, the 
 courts having decided this question, both in the affirmative ® 
 
 ' Brown V. Webb, 20 Ohio, 389; Gooding v. Eiley, 50 N. H. 406; Trem- 
 per V. Barton, 18 Ohio, 418; Andrews v. Marshall, 48 Me. 26. 
 
 2 Griffin v. Wertz, 2 Bradw. 487; Gill v. Pinney, 12 Ohio St. 38. 
 
 3 Kilbourne v. Fay, 29 Ohio St. 264; Becker v. Anderson, 11 Neb. 493. 
 
 * See cases cited supra, and, also, Stewart v. Beale, 7 Hun, 405; s. c. 
 68 N. Y. 629; Jones v. Graham, 77 N. Y. 628; Kennedy v. Nat. Union 
 Bank, 23 Hun, 494; Ransom w. Schmela, 13 Neb. (1882) 73; Cameron v. 
 Marvin, 26 Kan. 612, 627. 
 
 * Thompson v. VanVechten, 27 N. Y. 568; Fraser v. Gilbert, 11 Hun, 
 634; Brackett v. Harvey, 25 Hun, 602. 
 
 6 Mitford «. Mitford, 9 Ves. 87; Hanes v. Tiffany, 25 Ohio St. 549; 
 Sherrington v. Yates, 12 M. & W. 855; Brown v. Heathcote, 1 Atk. 160; 
 Winsor v. McLellan, 2 Story, 492; Fletcher v. Morey, 2 Story, 555; 
 Mitchell V. Winslow, 2 Story, 630; Scott v. Alford, 53 Tex. 82; In re 
 Collins, 8 Ben. 69; Curry u. McCauley, 11 Fed. Eep. 366; Nat. Shoe & 
 Leather Bank v. Small, 7 Fed. Bep. 837; Piatt «. Preston, 3 Fed. Eep. 
 394; Goddard v. Weaver, 1 Woods, 257, 260; In re Wynne, 4 Nat. Bank 
 Eep. 23; Coggeshall v. Potter, 4 Nat. Bank Rep. 73; In re Griffiths, 1 
 392 
 
CH. XVI.] CHATTEL MORTGAGES. § 240 
 
 and in the negative.^ The decisions in the negative rest 
 their opinion on the doctrine that the general creditors 
 acquire a lien on the property of the debtor in consequence 
 of its transfer to the assignee. The better opinion seems 
 to be that, if the mortgage is recorded, or the possession 
 of the goods taken by the mortgagee, before the general 
 creditors have become special creditors by judicial proceed- 
 ings of some sort, the mortgage is valid, and the rights of 
 the mortgagee amply protected against the adverse claims 
 of the general creditors.* 
 
 It was supposed that there is no inequality of equity be- 
 tween two unrecorded mortgages, so that they would be 
 enforced in the order of their execution.* But the better 
 opinion is that the second mortgage will have priority over 
 
 Lowell, 431; Hauselt v. Harrison, 105 U. S. 401, 406; Stewart ». Piatt, 
 101 U. S. 731. 
 
 1 See Ee Werner, 6 Dill. 119; Ke Gurney, 7 Biss. 414; Barkers. 
 Smith, 12 N. Bank Rep. 474; In re Collins, 12 Blatchf. 548; Piatt ti. 
 Stewart, 13 Blatchf. 481; Moore v. Young, 4 Biss. 128; Brock v. Terrell, 
 2 N. Bank Eep. 643; Goodrich v. Michael, 3 Colo. 77; Denny v. Lincoln, 
 13 Met. 200; Southard v. Benner, 73 N. Y. 424; Lockwood v. Slevin, 26 
 Ind. 124 ; Bingham v. Jordan, 1 Allen, 373 ; Adams v. Merchants' Nat. 
 Bank, 2 Fed. Eep. 174, 180; Allen v. Massey, 4 N. Bank Kep. 248; Bank 
 of Leavenworth v. Hunt, U Wall. 391 (in this case, however, the mort- 
 gage was fraudulent) ; In re Eldridge, 2 Biss. 362; ReLeland, 10 Blatchf. 
 503; Miller v. Jones, 15 N. Bank, 150, See Putnam v. Reynolds, 44 Mich. 
 113. * 
 
 2 Mitchell V. Black, 6 Gray, 100; Matthews v. Westphal, 1 McCrary, 
 446; Anibal v. Heacock, 2 Fed. Eep. 169; Sawyer v. Turpin, 91 U. S. 
 114; s. c. 13 N. Bank Eep. 271; Cook v. Tullis, 18 Wall. 332, 340; Stevens 
 V. Blanchard, 3 Cush. 169 ; National Shoe & Leather Bank v. Small, 7 
 Fed. Eep. 837; Clark v. Iselin, 21 Wall. 360; Watson v. Taylor, 21 Wall. 
 378; Burnhisel v. Firman, 22 Wall. 170. But see, conJra, Ee Eldridge, 
 2 Biss. 362; Harvey v. Crane, 2 Biss. 496; In re Manly, 3 N. Bank Eep. 
 291 ; Bean v. Amsink, 8 N. Bank Eep. 228 ; Leaver v. Spink, 8 N. Bank 
 Eep. 218; In re Morrill, 8 N. Bank, 117; Harris v. Exchange Nat. Bank, 
 4 DHL 133; Foster v. Hackley, 2 N. Bank Eep. 406; In re Hussman, 2 
 N. Bank Eep. 437, in which it is Ijeld that taking possession of the goods 
 on the eve of the mortgagor's bankruptcy, operated as a preference to 
 the mortgagee, which violated the bankrupt law in that respect. 
 
 3 TifEany v. Warren, 37 Barb. 571 ; 24 How. Pr. 293. 
 
 393 
 
§ 240 CHATTEL MORTGAGES. [CH. XVI. 
 
 the first, if the second mortgagee took his mortgage with- 
 out notice of the first; his failure to record his mortgage 
 being no reason why he should lose the priority which he 
 had gained by the failure of the first mortgagee to record 
 his mortgage. 1 
 
 Where the mortgaged property is sold, and a purchaser re- 
 sists the enforcement of the unrecorded mortgage, to be suc- 
 cessful in his opposition to the mortgage, he must show that 
 he has actually paid and not merely that he had promised to 
 pay a valuable and substantial consideration for the goods. ^ 
 And, whether the person who attacks the validity of the unre- 
 corded mortgage be a creditor or purchaser, the general rule 
 requires that he must acquire his interest in the mortgaged 
 property without actual notice of the prior unrecorded 
 mortgage,^ or without knowledge of such collateral facts as 
 
 ' De Courcey v. Collins, 21 N. J. Eq. 357. 
 
 2 Kohl V. Lynn, 34 Mich. 360; Harris v. Norton, 16 Barb. 264; Cum- 
 mingsu. Tovey, 39 Iowa, 195; Kessey v. McHenry, 54 Iowa, 187; Merrill 
 V. Dawson, Hemp. 563; Patten v. Moore, 32 N. H. 382. 
 
 2 As to purchasers, see Paine u. Mason, 7 Ohio St. 198; Simons ». 
 Pierce, 16 Ohio St. 215; Wetherell v. Spencer, 3 Mich. 123; Shuler v. 
 Boutwell, 18 Hun, 171; Sanger a. Eastwood, 19 Wend. 614; TifEany ». 
 Warren, 37 Barb. 671 ; Lewis v. Palmer, 28 N. Y. 271 ; Meech v. Patchin, 
 14 N. Y. 71 ; Gooding v. Riley, 50 N. H. 400; Clark v. Tarbell, 67 N. H. 
 328; Low v. Pettingill, 12 N. H. 337; National Banlt v. Sprague, 21 N. J. 
 Eq. 530; Allen v. McCalla, 25 Iowa, 464; Crawford ». Burton, 6 Iowa, 
 476; Campbells. Leonard, 11 Iowa, 489; Forbert v. Hayden, 11 Iowa, 
 435; Smith r. Zuroher, 9 Ala. 208; Steele «. Adams, 21 Ala. 534; Cobles. 
 Nonemaker, 78 Pa. St. 501; Hudson v. Warner, 2 Har. & G. 415; Boyd »■ 
 Beet, 29 Ala. 703; Fromme v. Jones, 13 Iowa, 474; Kuhn v. Graves, 9 
 Iowa, 303; McGavrani;. Haupt, 9 Iowa, 83; Sage «. Browning, 57 111. 217; 
 Frank v. Miner, 60 111. 444; Miller 77. Bryan, 3 Iowa, 58; Williamson!). 
 N. J. South. R. R. Co., 26 N. J. Eq. 398; McDowell v. Stewart, 83 111. 538; 
 Stowe V. Meserve, 13 N. H. 46; Tucker v. Tilton, 55 N. H. 223; Lemen v. 
 Robinson, 59 111. 115; Patten v. Moore, 32 N. H. 382; Gildersleeve v. 
 Landon, 73 N. Y. 609; Hill v. Beebe, 14 N. Y. 71; Lewis v. Palmer, 28 N. 
 Y. 271; Gould v. Marsh, 4 T. & C. 128; Gregory v. Thomas, 20 Wend. 17; 
 Paulus V. Nunn, 48 Mich. (1882) 191 ; Doyle v. Stevens, 4 Mich. 87 ; 
 Day V. Munson, 14 Ohio St. 488. As applied to creditors, see McGavran 
 V. Haupt, 9 Iowa, 83; Cragin v. Carmichael, 2 Dill. 519; Seevers v. 
 394 
 
CH. XVl] CHATTEL MORTGAGES. § 241 
 
 would put a reasonably prudent man upon his inquiiy.^ 
 But in some of the States, the statutes are held to pronounce 
 the mortgage void even against one who acquires hia subse- 
 quent interest in the mortgaged property with notice of the 
 unrecorded mortgage.^ The same point is made in New 
 York and New Jersey as to- attaching creditors, the unre- 
 corded mortgage being void as to them, notwithstanding 
 they had notice of the mortgage, although in these States 
 notice on the part of the subsequent purchaser destroj's his 
 superior equity over the prior unrecorded mortgage.^ 
 
 § 241. The right of possession o£ the mortgaged chat- 
 tels. — Except where the parties have expressly provided 
 for the contrary, the general rule of law, in conformity 
 with the common-law notion of the character of a chattel 
 mortgage, is that the mortgagee is entitled to the posses- 
 sion of the mortgaged property immediately after the exe- 
 cution and delivery of the mortgage.^ Not only is the 
 
 Delashmutt, 11 Iowa, 174; Kessey ■!). McHenry, 54 Iowa, 187; Crooks v. 
 Stuart, 2 McCrary, 13 ; Allen v. McCalla, 25 Iowa, 464. 
 
 1 Alleu V. McCalla, 25 Iowa, 464. But see Foster v. Gillespie, 68 Mo. 
 643. 
 
 2 Bingham v. Jordan, 1 Allen, 373; Travis v. Bishop, 13 Met. 304; 
 Garland v. Plummer, 72 Me. 397; Sheldon ». Conner, 48 Me. 584; Rich v. 
 Roberts, 48 Me. 548; Bryson v. Phenix, 18 Mo. 18; Selking v. Hebel, 1 
 Mo. App. 340; Bevans v. Bolton, 31 Mo. 437; Wilson v. Milligau, 75 Mo. 
 41; Gassner«. Patterson, 23 Cal. 299; Donaldsons. Johnson, 2 Chand. 
 (Wis.) 160; Moore v. Young, 4 Biss. 128; Kennedy v. Shaw, 38 lud. 474. 
 
 3 Farmers' Loan & Trust Co. v. Hendrickson, 25 Barb. 484 ; Stevens v. 
 Buffalo & N. Y. City R. R. Co., 31 Barb. 590; Saysie o. Hewes, 32 N. J. 
 Eq. 652, 656; Williamson v. N. J. South. R. B. Co., 29 N. J. Eq. 311, 336; 
 a. c. 28 N. J. Eq. 277. 
 
 * Brackett v. Bullard, 12 Met. 308; Pickard v. Low, 15 Me. 48; Flan- 
 ders V. Barstow, 18 Me. 357; Kamsdell v. Tewksbury, 73 Me. 197; 
 Holmes v. Sprowl, 31 Me. 73; Woodman b. Chesley, 39 Me. 45; Broad- 
 head u. McKay, 46 Ind. 595; Johnson v. Simpson, 77 lud. 412; Clark v. 
 Whittaker, 18 Conn. 643; Ellingtons. Charleston, 51 Ala. 166; Ross w. 
 Ross, 21 Ala. 322; Robinson v. Campbell, 8 Mo. 3G5; McGuire v. Benoit, 
 33 Md. 181; Wilson v. Brannan, 27 Cal. 258; Burdicku. McVanner, 2 
 Den. 170; Smiths. Acker, 23 Weud. 654; Wilner ». Morrell, 8 J. & S, 
 
 395 
 
§ 241 CHATTEL MORTGAGES. [CH. XVI. 
 
 mortgagee recognized as being entitled to possession as be- 
 tween the parties to the mortgage, but, also, as to third 
 parties, so that if the property falls into the possession of 
 third persons, as well as when the mortgagor has the 
 possession, the mortgagee may institute his action of trover 
 or replevin, for the wrongful conversion of the mortgaged 
 property.^ But if the mortgage contains a stipulation that 
 the mortgagor shall retain the right of possession until de- 
 fault or foreclosure, the mortgagor being thus entitled to 
 possession, the mortgagee could not maintain any action 
 for the conversion of the goods. The mortgagor must in 
 that case bring the action.^ And where the mortgagor is 
 
 222 ; Chadwick v. Lamb, 29 Barb. 518 ; Ferguson v. CliflEord, 37 N. H. 86 ; 
 Miller V. Pancoast, 29 N. J. L. 250; Whisler v. Eoberts, 19 111. 274; Frank 
 V. Miner, 50 111. 444 ; Constant v. Matteson, 22 III. 546 ; Hamlyn v. Boul- 
 ton, 15 Kan. 376; Thornton v. Gilman, 4 Smed. & M. 153; Robinson «. 
 Fitch, 26 Ohio St. 659 ; Bean v. Barney, 10 Iowa, 498 ; Bates v. Wiles, 1 
 Handy (Ohio), 632; Wolfley v. Rising, 12 Kan. 535; Kannaday v. McCar- 
 son, 18 Ark. 166; Chipron v. Feikert, 68 111. 284; Nelson u. Wheelock, 
 46 III. 25; Sanderson v. Price, 1 Zab. 637; Leach ». Kimball, 34 N. H. 
 568; Mattison v. Baucus, 1 N. Y. 295; Shuart v. Taylor, 7 How. Pr. 251 ; 
 Patohin v. Pierce, 12 Wend. 62; Fuller v. Acker, 1 Hill, 473, 475; Lang- 
 don V. Buel, 9 Wend. 80, 83; Wildman v. Radenakcr, 20 Cal. 615; Jamie- 
 son V. Bruce, 6 6. & J. 72; Williams v. Rorer, 7 Mo. 556; Brown v. Lips- 
 comb, 9 Port. 475; Pease v. Odenkirchen, 42 Conn. 416; Case ». Win- 
 ship, 4 Blackf. 425; Stewart i7. Hanson, 35 Me. 606; Pierce ti. Stevens, 
 30 Me. 184; Holly v. Huggeford, 8 Pick. 73; Coles v. Clark, 3 Cush. 399; 
 Hall V. Sampson, 35 N. Y. 274; Boise v. Knox, 10 Me. 40; Landon ». 
 Emmons, 97 Mass. 37. 
 
 1 Frisbee v. Langworthy, 11 Wis. 375; Lewis ». D'Arcy, 71 111. 648; 
 Russell V. Butterfleld, 21 Wend. 300; Pickardc. Low, 15 Me. 48; Quinn 
 o. Schmidt, 91 111. 84; Brown v. Cook, 3 E. D. Smith, 123; Badger t) 
 Batavia Paper Mfg. Co., 70 111. 302; Cotton ». Marsh, 8 Wis. 221: Bates 
 V. Wilbur, 10 Wis. 415; Montgomery i;. Kerr, 1 Hill (S. C), 291; Cutler 
 V. Copeland, 18 Me.' 127; Ashley v. Wright, 19 Ohio St. 291; Skiff v. 
 Solace, 23 Vt. 279; Chadwick v. Lamb, 29 Barb. 518. 
 
 2 Curd V. Wunder, 5 Ohio St. 92; Hathaway v. Brayman, 42 N. Y. 322; 
 Calkins v. Clement, 64 Vt. 635; Simmons v. Jenkins, 76 111. 479; Fenn v. 
 Bittleston, 21 L. J. (n. s.) Ex. 41 ; Hamilton v. Mitchell, 6 Blackf. 131 ; 
 Shinners v. Brill, 38 Wis. 648; McLeod ». Bernhold, 32 Ark. 671; Tall- 
 mann v. Jones, 13 Kan. 438. 
 
 396 
 
CH. XVI. J CHATTEL MOKTGAGE8. § 241 
 
 entitled to the possession, the mortgagee is liable to tres- 
 pass or trover for disturbing the mortgagor's possession. ^ 
 
 In many of the States the common-law rule, that the 
 mortgagee is immediately entitled to the possession of 
 the mortgaged property, is denied and instead thereof the 
 right to possession is conceded to the mortgagor, until fore- 
 closure,^ or until default in payment.^ 
 
 Where the mortgage provides for the retention of the 
 possession of the goods by the mortgagor, it usually states 
 the conditions and circumstances upon which the mortgagee 
 is to take possession, and of course these stipulations must 
 determine the mortgagee's right to the possession. The 
 provisions are various, providing for the mortgagee to take 
 possession on default in payment of principal or interest, 
 or it may be taken by him only when he intends to fore- 
 close the mortgage. Or the mortgage may provide that the 
 mortgagee shall take possession whenever he considers liis 
 security unsafe by reason of the mortgagor's possession.* 
 
 1 Ford V. Eansom, 39 How. Pr. 429 ; s. c. 8 Abb. Pr. (n. s.) 416 : Pierce 
 V. Hasbrouck, 49 111. 23; Russell ». Butterfleld, 21 Wend. 300; Briuk «. 
 FreofE, 44 Mich. 69; Jackson v. Hall, 84 N. C. 489; Spauldingc Barnes, 
 4 Gray, 330 ; Thornton v . Cochran, 51 Ala. 415 ; Mathews v. Fisk, 64 Me. 
 101; Saxton !J. Williams, 15 Wis. 292; Blodgett u. Blodgett, 48 Vt. 32 ; 
 Brown V. Phillips, 3 Bush, 656; Hall v. Sampson, 35 N. Y. 27. But only 
 the mortgagor, or some one having his title, can hold the mortgagee to 
 account in such a case. Third persons, having not the title to the goods, 
 cannot. Goar v. Hurd, 92 HI. 315; McConnell v. Scott, 67 HI. 274. 
 
 2 Kohl V. Lynn, 34 Mich. 360; Flanders «. Chamberlain, 24 Mich. 305; 
 Gary v. Hewitt, 26 Mich. 228; Lucking v. Wesson, 25 Mich. 443; Baxter 
 V. Spencer, 33 Mich. 325 ; People v. Bristol, 35 Mich. 28 ; Warner v. Beebe, 
 47 Mich. 435. . 
 
 s Sheble v. Curd, 56 Mo. 437; Barnettc. Timberlake, 57 Mo. 499, over- 
 ruling earlier cases; Buck u. Payne, 52 Miss. 271; Elson ». Barrier, 56 
 Miss. 394. But see Bowman v. Roberts, 58 Miss. 126, where it is held 
 that the trustee in a deed ol trust is not entitled under the Mississippi 
 statute to the possession of the chattels, until the creditor has requested 
 him to take possession for the purpose of foreclosure. 
 
 * Jamieson v. Bruce, 6 G. & J. 72, 75; Wells v. Chapman, 59 Iowa, 
 658; Hall J). Sampson, 35 l". Y. 274; Cline v. Libby, 46 Wis. 123; Rus- 
 
 307 
 
§ 241 CHATTEL MORTGAOES. [CII. XVI. 
 
 Where the mortgagee is authorized to take possession when- 
 ever he shall consider his security unsafe in the hands of the 
 mortgagor, he has the absolute power of determining when 
 the contingency has arisen, and he is not required to give 
 any reasons for his demand of possession. The courts can- 
 not review his decision that the mortgagor's retention of 
 possession renders his security unsafe.^ 
 
 In the absence of express stipulations of this sort, the 
 presumption is, where the mortgagor is given the right to 
 possession, that the mortgagee can take possession on de- 
 fault in payment.^ 
 
 The reservation of the right of possession to the mort- 
 gagor need not be express ; it may be implied from pro- 
 visions which determine the time when the mortgagee shall 
 take possession,^ or which provide for the mortgagor to 
 keep the property in repair,* and the like. But the com- 
 pliance with the provision must require the mortgagor's re- 
 sell V. Butterfield, 21 Wend. 300 ; St. Louis Drug Co. v. Robinson, 10 Mo. 
 App. 588; Anderson v. Holmes, 14 S. C. 162; Adener v. Bible, 43 Ind. 
 230; National Guardian Ass. Co., ex parte, 10 Ch. D.408; Prior d. Whit^, 
 12 111. 261; Wilson v. Eountree. 72 111. 570; Fox u. Kitton, 19 111. 521; 
 Beach v. Derby, 19 111. 617; Pike v. Colvin, 67 111. 227; Bailey v. Godfrey, 
 54 111. 507; Durfee v. Grinnell, 69 111. 371; Lewis v. D'Arcy, 71 111. 648; 
 Jorgensenc. Tait, 26 Minn. 327; McGuire u. Benoit, 33 Md. 181; Laing 
 V. Perrot, 48 Mich. 298. 
 
 1 Werner v. Bergman, 28 Kan. 60; Braley v. Byrnes, 21 Minn. 483; 
 Ebans v. Graham, 50 Wis. 450; Poxi>. Kitton, 19 III. 519; Durfee v. Grin- 
 nell, 69 111. 371; Smith v. Post, 1 Hun, 616; Huebner v. Koebke, 42 Wis. 
 319; Cline v. Libby, 46 Wis. 123; Bailey v. Godfrey, 54 111. 507; Lewis v. 
 D'Arcy, 71 111. 646; Roy ». Goinss, 96 111. 361; Frisbee i;. Langworthy, 11 
 Wis. 375; Welch a. Sackett, 12 Wis. 243; Grove ». Wise, 39 Mich. 161; 
 Harvey v. McAdams, 32 Mich. 472; Hugsans v. Fryer, 1 Lans. 276; Boice 
 V. Boice, 27 Minn. 371 ; Botsford v. Murphy, 47 Mich. 536. But see, contra, 
 Furlong v. Cox, 77 111. 293; Davenport v. Ledger, 80 111. 574. 
 
 2 See Robinson v. Fitch, 26 Ohio St. 659 ; Lindeman v. Ingham, 36 
 Ohio St. 1, 9. 
 
 2 Hall t!. Sampson, 35N.Y. 274; Hathaway v. Brayman, 42 N. Y. 822; 
 Letcher v. Norton, 4 Scam. 575; Sherman ». Clark, 24 Minn. 37. 
 ' Babcock v. McFarland, 43 111. 381. 
 398 
 
CH. XVI.] CHATTKL MORTGAGES. § 243 
 
 tention of possession, in order that his right to possession 
 may be implied therefrom.^ 
 
 § 242. The right to profits. — If the mortgagor is in 
 possession of the mortgaged property, he is entitled to the 
 profits and income, and he may appropriate them to his own 
 use, unless the mortgage stipulates that they should he ap- 
 plied to the liquidation of the debt, when he can be made 
 to account for them.^ If the mortgagee is in possession, he 
 is entitled to collect the profits, but he receives them in 
 trust to apply them to the liquidation of the mortgaged 
 debt and interest, and if there should be a surplus, then it 
 must be held for the mortgagor. The mortgagee never has 
 a personal right to the profits. 
 
 § 243. Mortgagor's right to sell the mortgaged prop- 
 erty. — Whatever may be the view taiien of the character 
 of the mortgagor's interest, it is transferable, i.e., the 
 mortgagor has the power to sell the mortgaged property, 
 subject to the mortgage,^ unless the power of sale has 
 by an express provision of the mortgage been taken away 
 altogether.* And while it is true that after breach of 
 the condition, according to the common-law rules, the 
 mortgagor has no legal estate in the property, and, there- 
 fore, has nothing which he can sell in law,^ yet he still has 
 
 1 Ellingtoa v. Charleston, 51 Ala. 166; Ferguson v. Thomas, 26 Me. 
 499. 
 
 2 Stewart v. Fry, 3 Ala. 573; Graves v. Sayre, 5 B. Mon. 390; North v. 
 Drayton, Harper Ch. 34. 
 
 s Chapman u. Hunt, 13 N. J. Eq. 370; Cadwell v. Pray, 41 Mich. 307; 
 Davis V. Blume, 1 Mont. 463; Porter v. Parmly, 34 N. Y. Supr. Ct. 398; 
 Hathaway v. Brayman, 42 N. Y. 322; Hammond v. Plimpton, 30 Vt. 333; 
 McLaughlin v. Smith, 45 Mich. 277; Russell u. Fillmore, 15 Vt. 130: 
 Daly V. Proetz, 20 Minn. 411; Mechanics' Building & Loan Assn. v. 
 Conover, 14 N. J. Eq. 219; Arnold v. Stock, 81 111. 407. 
 
 < See Gage v. Whlttier, 17 N. H. 312; Fisher v. Friedman, 47 Iowa, 
 443. 
 
 5 Chapman v. Hunt, 13 N. J. Eq. 370. 
 
 399 
 
§ 243 CHATTEL MORTGAGES. [CH. XVI. 
 
 an equity of redemption which he may transfer not only to 
 any one in general who wants to buy, but even to the 
 mortgagee. The mortgagee may save the cost and trouble 
 of foreclosure by buying in the mortgagor's equity of re- 
 demption. But such transactions between mortgagor and 
 mortgagee are closely watched by courts of equity, and 
 will avoid them if they have been procured from the mort- 
 gagor by fraud or undue influence.^ 
 
 A chattel mortgage is very often given over a stock of 
 goods of a merchant or tradesman, and the understanding 
 of the parties is that the mortgagor shall remain in posses- 
 sion, and by continuing the business of selling goods, be 
 enabled to pay off the debt. But in order to do this, 
 the mortgagor must have the power to sell the goods in 
 course oftrade, not merely subject to the mortgagee's lien, 
 but absolutely. Hence it is customary in such mortgages 
 to give the mortgagor the power to sell, and when the 
 mortgagor has this power, his purchasers get an absolute 
 title to the goods free from the claims of the mortgagee, 
 for the mortgagee in such a case has consented to the sale.^ 
 It is customary for the mortgage to contain an express 
 gr:int of the power to sell. But this is not necessary to 
 the existence of the power. Not only will a parol agree- 
 ment between the parties, that the mortgagor shall have 
 this power, in the absence of a statutory prohibition, be an 
 effectual grnnt of power ,^ but it may also be inferred from 
 other provisions, which mean nothing unless the power to 
 
 1 Locke V. Palmer, 26 Ala. 312; Goodman v. Pledger, U Ala. 114; 
 McKinstry v. Conly, 12 Ala. 678; Phillip v. Hunter, 22 Mo. 486; Hackle- 
 man V. Goodman, 75 Ind. 202. 
 
 " Walker v. Clay, 42 L. T. (n. s) 369; s. c. 49 L. J. R. 660; National 
 Mercantile Bank «.Hampson, 5 Q. B. D'. 177. 
 
 8 Pratt V. Maynard, 116 Mass. 388; Roberts v. Crawford, 54 N. H. 532; 
 Gage V. Whittier, 17 N. H. 312; Flenniken v. Scruggs, 15 S. C. 88; 
 Brandt v. Daniels, 45 111. 453; Carter v. Fately, 67 Ind. 427; Patrick v. 
 Meserve, 18 N. H. 300; Stafford v. Whitcomb, 8 Allen, 518. 
 400 
 
CH. XVI. J CHATTEL MORTGAGES. § 244 
 
 sell is implied. 1 The mortgagee will also be estopped 
 from denying the validity of the mortgagor's sale of the 
 goods, if he knows of the sale and does not take steps to 
 prevent it, and especially when he is present at the sale, 
 without raising objections,^ or he knowingly accepts the 
 proceeds of sale in satisfaction of any part of the debt.' 
 But when the mortgagor is given the power to sell the 
 mortgaged property, the power is confined to sales in the 
 ordinary course of business; and, unless the application of 
 the power is extended by an express stipulation, the mort- 
 gagor cannot divest the mortgagee of his title to the goods 
 by an extraordinary sale, such as a sale of the entire stock 
 of goods, and a consequent cessation of the business.* 
 
 § 244. Mortgagor's power to create superior liens. — 
 
 The general proposition is clear that the mortgagor cannot, 
 by virtue of the right of possession, claim the right to sub- 
 ject the property to a lien which will have precedence over 
 the mortgage. But if the mortgagor is authorized or re- 
 quired to do with the mortgaged property what would 
 require the contraction of a debt with others, to secure 
 which the law gives the creditor a lien over the goods, such 
 a lien will have priority over the mortgage. For example, 
 if the mortgagor is required to keep the mortgaged prop- 
 erty in repair, or to feed and care for the mortgaged 
 horses or cattle, he may in the performance of these duties 
 contract for repairs or pasturage respectively, and the per- 
 sons who make the one and furnish the other, will have a 
 superior lien for his claim over the mortgaged property.^ 
 
 1 Jenckes v. Go£E, 1 R. I. 511; Abbott v. Goodwin, 20 Me. 408; Pratt 
 V. Mayuard, 116 Mass. 388; Thompson v. Blanchard, 4 N. Y. 303. 
 
 2 See Brooks v. Record, 47 111. 30; Brandt o. Daniels, 45 III. 453; 
 Thompson v. Blanchard, 4 N. Y. 803; "White v. Phelps, 12 N. H. 382. 
 
 3 Eider v. Powell, 4 Abb. App. 63. 
 
 < Taylor v. M'Keand, 5 C. P. D. 358; s. c. 49 L. J. R. 663; Barnard v.. 
 Eaton, 2 Cush. 294; Payne v. Fern, Q. B. D. 620. 
 
 ^ Hammond t). Danielson, 120 Mass. 207; Bissell ?;. Pearce, 28 N. Y. 
 
 26 401 
 
§ 245 CHATTEL MORTGAGES. [CH. XVI. 
 
 But the mortgagor cannot give a prior lien where the law- 
 does not create one.' 
 
 § 245. Assignment of the mortgage. — The legal assign- 
 ment of the chattel mortgage can only be made by some 
 lawful mode of transfer of a written instrument, i.e., the 
 mortgage itself must be assigned. If the mortgage-debt 
 is also formally assigned, there can be no doubt that the 
 assignee has acquired the entire interest of the mortgagee 
 both in the debt and in the mortgage. And the assignee 
 of the mortgage would also acquire the debt and beneficial 
 interest in the mortgage without the formal assignment of 
 the debt, if the intention to make this absolute transfer is 
 manifested by some statement in the mortgage.^ But if 
 such an intention cannot be affirmatively established, the 
 assignment of the mortgage without the debt is either a 
 nullity or the assignee takes the mortgage in trust for the 
 holder of the debt.* 
 
 On the other hand, although the assignee cannot acquire 
 the legal title of the mortgage except by a formal transfer 
 of the mortgage, since the mortgage is considered and 
 treated in equity as an incident of the debt, and the debt as 
 the principal thing, the assignment of the debt without a 
 formal transfer of the mortgage will carry with it the 
 
 252. See, to the same efeect, Beall v. White, 94 U. S. 382; Scott v. Dela- 
 hunt, 5 Lans. 372; WilliaiDS v. AUsup, 10 0. B. (n. s.) 417; The Scio, 
 L. K. 1 Adm. & Eccl. 353; The St. Joseph, 1 Brown Adm. 202; Donnell 
 V. The Starlight, 103 Mass. 227; The Granite State, 1 Sprague, 277; 
 Provost V. Wilcox, 17 Ohio, 369; Case v. Allen, 21 Kan. 217; Buck v. 
 Payne, 52 Miss. 271. 
 
 1 See Smith v. Worman, 19 Ohio St. 145; Robinson v. Kruse, 29 Ark. 
 575; Jarchow v. Pickens, 51 Iowa, 381; Globe Works i>. Wright, 106 Mass. 
 207; liamphere v. Lowe, 3 Neb. 131 ; Sargent v. Usher, 55 N. H. 287. 
 
 2 Jones V. Huggeford, 3 Met. 515; Sirrine v. BriggS, 31 Mich. 443; 
 Barbour «, White, 37 111.164; Campbell «. Birch, 60 N. Y. 214; Hill v. 
 Beebe, 13 N. Y. 656. 
 
 3 Polhemus v. Trainer, 30 Cal. 685; Earll «. Stumpf, 66 Wis. (1882) 
 50; Lucas v. Harris, 20111. 165. 
 
 402 
 
CH. XVI.] CHATTKL JIORTGAGES. § 245 
 
 equitable title of the mortgage, and such assignee could 
 enforce the mortgage in his own behalf and name in a court 
 of equity.^ Such assignee can, in his own name, only re- 
 sort to the equitable remedies of foreclosure, and will not 
 be able to maintain the legal actions of trespass, trover 
 and replevin, except in the name of the mortgagee.^ 
 
 It has been held that the assignment of a part of the 
 debt will operate as an assignment pro lanto of the mort- 
 gage.^ But it would be only an equitable assignment, and 
 if the mortgagee were to dispose of the whole debt and 
 mortgage to one having no notice of the partial assignment, 
 the purchaser would get an absolute title.* But if there is 
 a formal assignment of the mortgage and debt jpro tanto, 
 the assignee becomes a tenant in common of the mortgaged 
 property with the original mortgagee." 
 
 If the debt is an open account or a non-negotiable instru- 
 ment of indebtedness, the assignee can acquire no better 
 title than what the assignor had, and defenses which could 
 be set up against the enforcement of the mortgage by the 
 mortgagee will prevail against his assignee also.® But, in 
 some of the States, if the instrument of indebtedness be a 
 
 1 Langdon v. Buel, 9 Wend. 89 ; Johnson v. Hart, 3 Johns. 322 ; Tisou 
 V. People's Sar. & Loan Ass., 57 Ala. 323; Woodrufe c. King, 47 Wis. 
 261; Rice v. Cribb, 12 Wis. 179; Grain v. Paine, 4 Cush. 483; Martindale 
 V. Burch, 57 Iowa, 291; Bamsdell v. Tewksbury, 73 Me. 197; Prout ». 
 Root, 116 Mass. 413; Croft u. Bunster, 9 Wis. 603; Gafe v. Harding, 48 
 111. 150; EUett v. Butt, 1 Woods, 214; Gould v. Marsh, 1 Hun, 566. 
 
 2 Ramsdell v. Tewksbury, 73 Me. 197; Grain v. Paine, 4 Cush. 487. 
 ' Emmons v. Dowe, 2 Wis. 322. 
 
 ^ French v. Haskins, 9 Gray, 195. 
 
 ' Earll V. Stumpf, 56 Wis. (1882) 50. 
 
 6 Trustees Union College ». Wheeler, 61 N. Y. 88; Ingraham v. Dis- 
 borough, 47 N. Y. 421; Davis v. Bechstein, 69 N. Y. 440; Pendleton « 
 Fay, 2 Paige Ch. :;02 ; Ellis v. Messervie, 11 Paige Ch. 467; 2 Denio, 640 
 Mott V. Clark, 9 Pa. St. 399; Twitchell v. McMurtrie, 77 Pa. St. 383 
 Losey v. Simpson, 10 N. J. Eq. 247; Musgrove v. Kennell, 23 N. J. Eq 
 75; Reeves v. Scully, Walk. (Mich.) 248; Nicholls v. Lee, 10 Mich 
 526; Croft ». Bunster, 9 Wis. 503; Goulding «. Bunster, 9 Wis. 503 
 Hortsman v. Gerker, 49 Pa. St. 282. 
 
 403 
 
ij 245 CHATTEL MORTGAGES. [CH. XVI. 
 
 negotiable instrument, the mortgage being treated as an in- 
 cident of the debt, it receives from the negotiable instrument 
 its negotiable character, and passes to the assignee free 
 from the equities existing between the mortgagor and mort- 
 gagee, unless by express terms the mortgage is assigned 
 subject to the equities. But to be free from the existing 
 equitable defenses, the assignment must be made before tho 
 debt is due.^ But, in other States, it is held that the nego- 
 tiable character of the instrument of indebtedness does not 
 extend to the mortgage, which secures its payment. .And 
 although, so far as the personal liability of the mortgagor 
 on the debt is concerned, the assignee takes the assignment 
 free from the equities, the mortgage in his hands is subject 
 to them.^ 
 
 In every other respect where the assignment has been 
 made in due form, the assignee of the mortgage may be 
 said to acquire all the rights of his assignor, neither more 
 nor less. If the mortgagee is entitled to possession, his 
 assignee will also be entitled to possession ; he may appro- 
 priate the profits and income while in possession, and in the 
 same manner as the mortgagee maintain all the actions 
 given for the protection of his interests.^ 
 
 1 Carpenter v, Longan, 16 Wall. 271; Kenicott v. Supervisors, 10 
 Wall. 452; Sprague v. Graham, 29 Me. 160; Pierce «. Faunce, 47 Me. 
 507; Gould v. Marsli, 1 Hun, 666; 4 T. & C. 128; Jackson v. Blodgett, 5 
 Cow. 305; Green v. Hart, 1 Johns. 68C; Taylor v. Page, 6 Allen, 86 ; 
 Young V. Miller, 6 Gray, 152; Breen v. Seward, 11 Gray, 118; Button v. 
 Ives, 2 Mich. 515; Bloomer v. Henderson, 8 Mich. 396; Cornell v. 
 Hichens, 11 Wis. 353; Webb v. Haselton, 4 Neb. 308. 
 
 2 Olds V. Cummings, 31 111. 188; Sumner v. Waugh, 56 111. 631 ; White 
 V. Sutherland, 64 111.181; Baily i;. Smith, 14 Ohio St. 396; Bouligny w. 
 Fortier, 17 La. An. 121; Johnson v. Carpenter, 7 Minn. 176. 
 
 3 Phillips V. Bank of Lewiston, 18 Pa. St. 394; Green v. Marble, 37 
 Iowa, 95; Garrett v. Puckett, 15 Ind. 485; McGuffey v. Finley, 20 Chio, 
 474; Walker v. Bank of Mobile, 6 Ala. 452; Andrews v. McDaniel, 68 N. 
 C. 385; Miller «. Henderson, ION. J. Eq. 320; Whitney u. McKlnney, 7 
 Johns. Ch. 144; Belles ». Carli, 72 Minn. 113; Barraque v. Manuel, 7 
 Ark. 516; Strang v. Allen, 44 111. 428; Phyfe v. Riley, 15 Wend. 248; 
 
 404 
 
CH. X\I ] CHATTEL MORTGAGES. § 246 
 
 § 246. Gffect of tender and payment on mortgage. — 
 
 If the tender or payment of the mortgaged debt is made 
 by a party having the right to redeem the property, whether 
 he be the mortgagor or his assignee, before there has been 
 a default, i.e., when the debt falls due, the mortgage by 
 its very terms becomes void, and the mortgagee's title to 
 the goods terminates.^ 
 
 But if there has been a default before tender or payment 
 has been made, their effect will depend upon the view taken 
 of the character of the mortgagee's interest in the property, 
 and of the effect of default on his title. If the chattel 
 mortgage is held to be strictly a conditional sale, and the 
 whole title of the goods is held to pass to the mortgagee, 
 subject only to the condition of forfeiture on payment of 
 the debt, when it falls due, the failure to pay the debt when 
 due operates to make the title of the mortgagee 'absolute, 
 and at law the mortgagee could rightfully refuse a tender 
 of the debt after default. Hence, where this view of the 
 chattel mortgage prevails, an unaccepted tender of payment 
 will not extinguish the mortgagee's title to the goods. ^ 
 The mortgagor's title to the mortgaged property is not a 
 legal one; it is simply an equity of redemption, and in 
 equity alone can he enforce his right to recover the prop- 
 erty by payment of the debt.' But if the tender of pay- 
 
 Henshaw v. Wells, 9 Humph. 568; Northampton Mills v. Ames, 8 Met. 
 1; Erskine v. Townsend, 2 Mass. 493; Belclmg v. Manly, 21 Vt. 551; 
 Eastman v. Batchelder, 36 N. H. 141 ; Jackson v. Hopkins, 18 Johns. 487; 
 Jackson v. Bowen, 7 Cow. 13; Jackson v. Minkler, 10 Johns. 480. 
 
 1 Shiver v. Johnston, 62 Ala. 37; Bellamy v. Doud, 11 Iowa, 285; 
 Hunt V. Daniels, 15 Iowa, 146 ; Wallard v. Worthman, 84 111. 446 ; Slaugh- 
 ter ». Swift, 67 Ala. 494; Chapman v. Hunt, 18 N. J. Eq. 414; Harrison 
 V. Hicks, 1 Port. (Ala.) 423; Bowditch u. Green, 3 Met. 360; Butler D. 
 Tufts, 13 Me. 302; Dryers. Lewis, 57 Ala. 551. 
 
 2 Rogers V. Traders' Ins. Co., 6 Paige, 683, 587, 594; Stoddard v. 
 Dennison, 38 How. Pr. 296 ; Charter v. Stevens, 3 Denio, .SS ; Patchin v. 
 Pierce, 12 Wend. 61. 
 
 3 Hulseru. Walter, 34 How. Pr. 385; Boone v. Rains, 7 Mon. 384; 
 Sims V. Canfleld, 2 Ala. 555; Wheeler k. Miller, 2 Denlo, 172. 
 
 405 
 
§ 246 CHATTEL MORTGAGES. [CH. XVI. 
 
 ment is accepted, the forfeiture for default id considered 
 as having been waived, and the mortgagee's title to the 
 mortgaged goods is undoubtedly extinguished, without any 
 resort to a court for a decree of redemption;^ and the 
 mortgagor may at once bring his action at law for 
 the recovery of the possession of the mortgaged prop- 
 erty.^ 
 
 But in some of the States, where the chattel mortgage is 
 held to be nothing more than a lien, the general title to the 
 mortgaged property remaining in the mortgagor, it is held 
 that the tender will have the effect of extinguishing the 
 mortgage, although made after the default in payment.^ 
 And even in those States, in which the common law theory, 
 as to the character of a chattel mortgage, is still retained, 
 it is sometimes held that the tender of payment will pre- 
 vent the enforcement of the mortgage, if the mortgagee 
 had not previously gained possession of the mortgaged 
 goods, by enabling the mortgagor to defend the mortgagee's 
 
 1 "West v. Crary, 47 N. Y. 423; Harrison v. Hicks, 1 Port. (Ala.") 423; 
 Parks U.Hall, 2 Pick. 206; Thompson v. Van Vechten, 27 N. Y.568; 
 Moak«. Bourne, 13 Wis. 614; Barry v. Bennett, 7 Met. 354; Browns. 
 Lipscomb, 9 Port. (Ala.) 472 ; Heyland v. Badger, 35 Cal. 404; Ackley v. 
 Finch, 7 Cow. 290; Langdon -o. Buel, 9 Wend. 80; Brown v. Bennett, 8 
 Johns. 96; Patchin u. Pierce, 12 Wend. 61; Blodgett «. Blodgett, 48 Vt. 
 32. The same rule holds good, where the mortgage is given to secure 
 the delivery of certain property at the agreed time, and a tender of de- 
 livery is made and accepted after default. Butler v. Tufts, 13 Me. 302. 
 See Moak v. Bourne, supra. But the acceptance of a part of the mort- 
 gage debt will not have the effect of extinguishing the mortgage . Patchin 
 V. Pierce, 12 Wend. 61; Barry v. Bennett, 7 Met. 354, 360; Parks v. Hall, 
 2 Pick. 206; Charter v. Stevens, 3 Denio, 33. 
 
 2 Leighton v. Shapley, 8 N. II. 359; Flanders v. Barstow, 18 Me. 357; 
 Westj). Crary, 47 N. Y. 423; Porter v. Parmley, 52 N. Y. 185, 188; Greene 
 V. Dingley, 24 Me. 131 ; Sumner v. Batchelder, 30 Me. 35, 39. 
 
 8 Planders u. Chamberlain, 24 Mich. 305 ; Fuller v. Parrish, 3 Mich. 
 211; HusauB. Kanouse, 13 Mich. 303; Caruthers v. Humphrey, 12 Mich. 
 270; Moynahan v. Moore, 9 Mich. 9; Bartel v. Lope, 6 Oreg. 321. See 
 Baxter v. Spencer, 33 Mich. 326; Kohl v. Lynn, 34 Mich. 360; Chapman 
 u. State, 5 Oreg. 432. And see, also, Smith O.Phillips, 46 Wis. 202; 
 Tompkins v. Batie, 11 Neb. 147. 
 406 
 
CH. XV. J CHATTEL MORTGAGES. § 247 
 
 action for possession. This would, however, be an equit- 
 able defense, and could be set up in a legal action only in 
 those States, in which all distinctions as to legal and equit- 
 able actions have been abolished.* And it has also been 
 held, that if the mortgaged property should be lost or de- 
 stroyed after a refusal of a proper tender of payment, the 
 loss would fall upon the mortgagee.^ 
 
 Whether the tender has to be kept good by a payment of 
 the money into court, in order to extinguish the mortgage, 
 is doubtful; some of the courts holding that this is neces- 
 sary,^ while others maintain the contrary.* 
 
 § 247. The mortgagop's right of redemption. — As has 
 been already explained,^ according to the common law, the 
 mortgagee's title to the mortgaged goods becomes absolute 
 upon default in payment, and at law the mortgagor has, 
 after default, no claim whatever on the mortgaged goods.* 
 But, as in the case of mortgages of real property, so here, 
 the court of equity assumed jurisdiction for the purpose of 
 preventing an injustice to the mortgagor resulting from the 
 forfeiture of his title to the mortgaged goods for default in 
 payment, where the value of the goods was greater than the 
 amount of the debt, and decreed that if the mortgagor 
 would pay into court the full amount of the debt within a 
 reasonable time after default, he shall have the right to re- 
 cover his property from the mortgagee. And this is called 
 
 ' Musgat V. Pumpelly, 46 Wis. 660. See Archer v. Cole, 22 How. Pr. 
 4H. 
 
 2 Goodman v. Pledger, It Ala. 114. 
 
 s Smith V. Phillips, 47 Wis. 202; Patchin v. Pierce, 12 Wend. 61 ; Hal- 
 stead V. Swartz, 1 T. & C. 559 ; Tompkins v. Batie, 11 Neb. 147. 
 
 ■* Flanders v. Chamberlain, 24 Mich. 305; Bartel v. Lope, 6 Oreg. 321. 
 See Musgat v. Pumpelly, 46 Wis. 660. See Jones on Mortgages, § 893, 
 for the cases relating to mortgage of real property. 
 
 6 See ante, §§ 221, 246. 
 
 « Taberu. Hamlin, 97 Mass. 489; Bnrtis v. Bradford, 122 Mass. 129; 
 "Wendell v. N. H. Bank, 9 N. H. 404, 420. 
 
 407 
 
§ 247 CHATTEL MOllTGAGES. [CH. XVI. 
 
 the mortgagor's riglit or equity of redemption.^ This right 
 of redemption is generally conceded to the mortgagor, in- 
 dependently of any statutory authority. ^ 
 
 The mortgagor is not permitted by any agreement, con- 
 temporaneous with the execution of the mortgage, to debar 
 himself of his right of redemption. Such an agreement is 
 absolutely void.^ 
 
 But in order that the mortgagor may redeem his property 
 from the mortgage, he must make a lawful tender of pay- 
 ment of the debt in full in the bill or before the suit is 
 brought.* And the action must be brought within a rea- 
 
 1 Planders v. Chamberlain, 24 Mich. 305, 313; Davis v. Hubbard, 38 
 Ala. 185, 189; Evans w. Merriken, 8 Gill & J. 89; Boyd c. Beandin, 54 
 Wis. 193; Leach v. Kimball, 34 N. H. 568, In a late Indiana case, it 
 was doubted whether the mortgagor had any equity of redemption in a 
 chattel mortgage. Sidener v. Bible, 43 Ind. 230. But see Blakemore v. 
 Taber, 22 Ind. 466 ; Woodward v. Wilcox, 27 Ind. 207 ; Trittipo ». Ed- 
 wards, 85 Ind. 467; Broadhead v, McKay, 46 Ind. 595. 
 
 2 Flanders v. Barstow, 18 Me. 857; Charter v. Stevens, 3 Denio, 33; 
 Stoddard v. Denison, 38 How. Pr. 296; Patchin v. Pierce, 12 Wend. 61; 
 Dupuy ». Gibson, 36 111. 197; Wjlder v. Crane, 53 111. 490; Foster v. 
 Ames, 1 Low. 313; Smith v. Coolbaugh, 21 Wis. 427; Wilson v. Brannan, 
 27 Cal. 258; Blodgett v. Blodgett, 48 Vt. 32; Tannahill v. Tuttle, 3 Mich. 
 104 ; Flanders v. Chamberlain, 24 Mich. 805 ; Van Brunt v. Wakelee, 11 
 Mich. 177; Heyland v. Badger, 35 Cal. 404; Saxton v. Williams, 15 Wis. 
 292; Flanders v. Thomas, 12 Wis. 410; Waite v. Dennison, 51 111. 319; 
 Hammers v. Dole, 61 111. 307; Bragelman v. Dane, 69 N. Y. 69; Hinmau 
 V. Judson, 13 Barb. 629 ; Pratt v. Stiles, 17 How. Pr. 211 ; *. c. 9 Abb. Pr. 
 150; West v. Crary, 47 N. T. 423. But the equitable remedy for redemp- 
 tion is always superseded by a statutory remedy, except where the latter 
 remedy proves ineffectual. Gordon v. Clapp, 111 Mass. 22; Boston & 
 Fairhaven Iron Works v. Montague, 108 Mass. 248; Bushnell ». Avery, 
 121 Mass. 148. 
 
 ' Bunacleugh v. Poolman, 3 Daly, 236; Lavigne v. Naramore, 52 Vt. 
 267. See Landers v. George, 49 Ind. 309. 
 
 * Flanders v. Chamberlain, 24 Mich. 305; Lavigne v. Naramore, 52 Vt. 
 267 ; Stoddard v. Dennison, 38 How. Pr. 296 ; Halstead v. Swartz, 46 How. 
 Pr. 289, 291; Hall v. Ditson, 55 How. Pr. 19; Adams v. Nebraska City 
 Nat. Bank, 4 Neb. 370; Tallon v. Ellison, 3 Neb. 63, 74. The failure to 
 tender payment before the suit is brought only affects the question of 
 costs. Boyd v. Bendin, 54 Wis. 193. 
 408 
 
CH. XVI.] CHATTEL MORTGAGES. § 247 
 
 sonable time after default. What constitutes a reasonable 
 time, independent of statutory regulation, will no doubt 
 depend upon the circumstances of euch case.^ It would 
 seem but proper that, as in the case of mortgages of real 
 property, the provision of the statute of limitation in ref- 
 erence to actions at law for the recovery of personal prop- 
 erty should govern by analogy this question of reasonable 
 time in respect to the bill for redemption.^ Where a statute 
 provides a time for redemption, as a matter of course the 
 action must be brought within that time.^ In Maine, 
 Massachusetts, Minnesota, Ehode Island, redemption can 
 be claimed only within sixty days after forfeiture for de- 
 fault . In Kentucky, action for redemption must be brought 
 within five years. In New Hampshire, Vermont, Delaware, 
 Florida, Missouri, Pennsylvania, and South Carolina, 
 statutes provide that the foreclosure of the mortgagor's 
 equity of redemption shall not be made until due notice 
 has been given, varying in length from 30 to 60 days.* 
 But in any case, whether there be a statute or not, the 
 time of redemption does not begin until there has been a 
 default ; and the mortgagor may by the terms of the 
 mortgage have his entire life-time in which to pay the 
 debt.5 
 
 If the mortgagee has consumed the property, or other- 
 wise disposed of it, so that he could not, in obedience to a 
 decree for redemption, restore the mortgaged property to 
 the mortgagor, the court will, instead thereof, decree dam- 
 
 1 Lavigne v. Naramore, 62 Tt. 267; Arnold v. Chapman, 13 E. I. 586; 
 Stoddard?;. Dennison, 38 How. Pr. 296; Hatfield v. Montgomery, 2 Port. 
 (Ala.) 58. 
 
 2 See Byrd v. McDanlel, 33 Ala. 18 ; Perry v. Craig, 3 Mo. 516 ; Baker 
 V. Baker, 13 B. Mon. 406. 
 
 3 Winchester v. Ball, 54 Me. 558; Clapp v. Gliddcn, 39 Me. 448. 
 
 * Jones on Chattel Mortgages, § 689. 
 
 * Joyner v. Vincent, 4 Dev. & Bat. 512 ; Bartlett v. Thynes, 2 Hill (C, 
 C.) Eq. 171. And part payment will stop the running of the time of re- 
 demption. Winchester v. Ball, 64 Me. 558. 
 
 409 
 
§ 248 CHATTEL JIOETGAGKS. [CH. XVI. 
 
 ages to be estimated by the value of the mortgaged prop- 
 erty at the time that it was disposed of by the mortgagee.' 
 
 § 248. The mortgagee's right of possession after for- 
 feiture. — Upon default in the payment of the mortgage 
 debt, the legal title of the mortgagee, according to the 
 generally prevailing theory of chattel mortgages, becomes 
 absolute in him, and the legal title of the mortgagor is de- 
 feated altogether. In consequence of his acquisition of the 
 absolute title to the mortgaged goods, the mortgagee is en- 
 titled to the possession of the goods, and may maintain his 
 action of replevin for the recovery of the possession of 
 them. And he has this right to possession after forfeitures, 
 notwithstanding the provisions in the mortgage for the sale 
 of the property, and a payment to the mortgagor of the 
 surplus remaining after a satisfaction of the mortgage debt.^ 
 
 1 Mowry v. First Nat. Bank, 54 Wis. 38; Boyd v. Beandin, 54 Wis. 
 193; Blodgett v. Blodgett, 48 Vt. 32; Stoddard v. Dennison, 38 How. Pr. 
 29C ; Bragelman v. Dane, 69 N. Y. 69. 
 
 2 Burdick v. McVanner, 2 Denio, 170; Durfree v. Grinnell, 69 111. 371 ; 
 Nichols V. Webster, 1 Cliandl. 203; McConnell »., Scott, 67 111. 274 ; Jeffer- 
 son V. Barkto. 1 Bradw. 568. See, also, generally, as to effect of default 
 on the mortgagee's title to the mortgaged ^oods, Lowe v. Wing, 56 
 Wis. (1882) 31; Smith v. Koust, 50 Wis. 360; Smith v. Coolbaugh, 21 
 Wis. 427; Musgate v. Pampelly, 46 Wis. 660; Blodgett?;. Blodgett, 48 Vt. 
 32; Hulsen v. Walter, 34 How. Pr. 385; Fuller v. Acker, 1 Hill, 473; 
 Ackley v. Finch, 7 Cow. 290; Hall v. Snowhill, 2 Green (N. J. L.) 8; 
 Bryant v. Carson River Lumbering Co., 3 Nev. 313; Robinson v. Camp- 
 bell, 8 Mo. 365; s. c. lb. 615; Volney Stamps v. Oilman, 43 Miss. 456; 
 Flanders w. Barstow, 18 Me. 357; Brown «. Phillips, 3 Bush, 656; Fikesw. 
 Manchester, 43 111. 379; Simmons v. Jenkins, 76 111.479; Constants. 
 Matterson, 22 111. 546; Rhines c-. Phelps, 3 Gilm. 455; Wright v. Ross, 36 
 Cal. 414; Heyland v. Badger, 35 Cal. 404; Brown u. Lipscomb, 9 Port. 
 472; Nervine v. White, 60 Ala. 388; Moore v. Murdock, 26 Cal. 514; In re 
 Haake, 2 Sawy. 231 ; Larmon v. Carpenter, 70 111. 649; McConnell v. Peo- 
 ple, 84 111. 683; Pike v. Calvin, 67 111. 227; Bean v. Barney, 10 Iowa, 498; 
 Winchester v. Ball, 54 Me. 658 ; Merchants' Nat. Bank v, McLaughlin, 1 
 McCrary, 258; s. c. 2 Fed. Rep. 128; Thornhill v. Gilmer, 4 Sm. & M. 153; 
 Bowcns V. Benson, 57 Mo. 26; Leach v. Kimball, 34 N. II. 668; Woodside 
 V. Adams, 40 N. J. L. 417 ; Langdon v. Buel, 9 Wend. 80 ; Patchin v. Pierce, 
 
 410 
 
CH. XVI. J CHATTEL MORTGAGES. § 248 
 
 And, although the mortgagor still has his equity of re- 
 demption, by the enforcement of which he can recover his 
 property, the mortgagee is not obliged to proceed to the 
 foreclosure of the equity of redemption, because he had 
 taken possession of the property. He has a right to hold 
 the possession, as long as the debt remains unpaid, and can 
 force the mortgagor to the action for redemption.^ 
 
 The mortgagee, by taking possession of the mortgaged 
 goods on default of payment, acquires the right, independent 
 of any decree of court or special grant of power of sale, to 
 bar the mortgagor's equity of redemption by a sale of the 
 mortgaged property. The relation of the mortgagor and 
 mortgagee, under these circumstances, is held to be equiva- 
 lent to that of pledgor and pledgee, and the mortgagee ac- 
 quires the pledgee's right to sell after due notice to the 
 mortgagor. This is not only tlie case, where there is no 
 grant of power to sell,^ but also, where express provisions 
 for the sale of the property at public auction are contained 
 
 12 Wend. 61; s. c. 1 Hill, 473; Moody v. Haseldon, 1 S. C. 129; Flanders 
 V. Thomas, 12 Wis. 410; Smith v. Phillips, 47 Wis. 202. A different rule 
 obtains in Michigan and Oregon, where It is held that the mortgagor is 
 not divested of his legal title to the mortgaged property, until the transfer 
 under a decree of foreclosure. Kohl u. Lyncn, 34 Mich. 360; Baxter v. 
 Spencer, 33 Mich. 325; Gary u. Hewitt, 26 Mich. 228; Lucking u. Wesson, 
 25 Mich. 443; Chapman v. State, 5 Oreg. 432. 
 
 1 Craig 17. Tappin, 2 Bandf. Ch. 78; Bradley?;. Redmond, 42 Iowa, 452; 
 Nichols V. Webster, 1 Chand. (Wis.) 203; Craft v. BuUard, 1 Smed. & M. 
 Ch. 366; Murry v. Erskine, 109 Mass. 597. 
 
 2 Patchin v. Pierce, 12 Wend. 61, 63; Charter v. Stevens, 3 Denio, 33; 
 Craig V. Tappin, 2 Sandf . Ch. 78, 90 ; Chamberlain v. Martin, 43 Barb. 607 ; 
 Huggans V. Fryer, 1 Lans. 276; Talman v. Smith, 39 Barb. 390; Hall v. 
 Bellows, 11 N. J. Eq. 333 ; Eunyon v. Groshon, 12 N. J. Eq. 86 ; Denny v. 
 Faulkner, 22 Kan. 89; Bryan v. Eobert, I Strobh. Eq. 334; Broadhead v. 
 McKay, 46 Ind. 595; Wilson v. Brannan, 27 CaL 258; Bryants. Carson 
 River Lumbering Co., 3 Nev. 313; Johnson v. Vernon, 1 Bailey, 627; 
 Bird v. Davis, 14 N. J. Eq. 467; Champman v. Hunt, 13 N. J. Eq. 370; 
 Long Dock Co. v. Mallery, 12 N. J. Eq. 93; Hulsen «. Walter, 34 How. 
 Pr. 385; Ballon v. Cunningham, 60 Barb. 425; Hall u. Ditson, 55 How. 
 Pr. 19; Stoddard v. Dennison, 38 How. Pr. 296; Hart v. Ten Eyck, 2 
 Johns. Ch. 62, 100. 
 
 411 
 
§ 249 CHATTEL MORTGAGES. [cH. XVI. 
 
 in the mortgage, the property may be sold at private sale, 
 under this implied power, if the mortgagee has taken pos- 
 session of the property.^ And in New York it has been 
 held that the sale operates as a valid bar of the mortgagor's 
 equity, although no notice of the projected sale has been 
 given to him.^ Bat a reasonable notice of the sale is gen- 
 erally required to be given to the mortgagor; and what is a 
 reasonable notice is generally to be determined by a con- 
 sideration of all the circumstances of each particular case.^ 
 
 § 249. Foreclosureof the mortgagor's equity of redemp- 
 tion in equity and at law. — Where the mortgagee has not 
 acquired the possession of the mortgaged property after 
 default and the mortgage cannot for that reason be consid- 
 ered to have the characteristics of a pledge, the mortgagor's 
 equity cannot be barred by the mortgagee's sale of the 
 property, unless the mortgagor has consented to the sale, 
 when it becomes in effect the joint sale of the two, and an 
 equivalent of foreclosure ; * or the sale is made under a 
 judicial decree, or in the exercise of a special power of 
 sale. 
 
 In very many of the States, the statutes provide for the 
 foreclosure of chattel mortgages, and wherever these pro- 
 visions are to be found, they must be complied with, in 
 order to secure a foreclosure of the chattel mortgage.^ But 
 
 1 Flanders v. Chamberlain, 24 Mich. 305; Talman v. Smith, 39 Barb. 
 390; Freeman v. Freeman, 17 N. J. Eq. 44; Kobinson v. Campbell, 8 Mo. 
 365; s. c. lb. 615; Dane v. Mallory, 16 Barb. 46; Landon v. Emmons, 97 
 Mass. 37; McConnell v. People, 84 111. 683; Waite v. Dennison, 61 111. 
 319; Hungate v. Reynolds, 72 111. 425; Wylder v. Crane, 53 111. 490. 
 
 2 Chamberlain v. Martin, 43 Barb. 607; Hall ». Ditson, 65 How. Pr. 
 19; s. c. 5 Abb. N. C. 198; Patchin v. Pierce, 12 Wend. 61. 
 
 s Wilson V. Brannan, 27 Cal. 358; Bird v. Davis, 14 N. J. Eq. 467. 
 See Freeman v. Freeman, 17 N. J. Eq. 44, 47. 
 
 ■* Harris v. Lynn, 25 Kan. 281 ; Talman v. Smith, 39 Barb. 390 ; Mc- 
 Connell V. People, 71 111. 481. 
 
 ' See Jones on Chattel Mortgages, Chapter XVII. 
 412 
 
CH. XVI.] CHATTEL MOKTGAGES. § 250 
 
 in the absence of exclusive statutory provisions, the court 
 of equity has ample power to decree a foreclosure of the 
 mortgagor's equity on reasonable terms.^ And the right 
 to a foreclosure by a bill in equity is not taken away or 
 precluded by the existence of a power of sale in the mort- 
 gagee for the purpose of a substitute for foreclosure. The 
 mortgage may be foreclosed in equity although the mort- 
 gage contains such a power of sale.^ Nor is the right to 
 foreclosure precluded by the mortgagee's right at law to 
 recover the possession, and by such possession to be en- 
 abled to sell the property.* 
 
 The foreclosure of chattel mortgages in equity differs in 
 no essential respect from that of real estate mortgages, 
 and inasmuch as in the case of the former, foreclosure 
 is rarely resorted to, because chattel mortgages almost 
 always contain a grant of a power to sell, it is not consid- 
 ered necessary to refer in detail to the essentials of an 
 action for the foreclosure. For further information the 
 reader may be referred to works which treat of the fore- 
 closure of real estate mortgages.* 
 
 § 250. Foreclosure under power of sale. — Chattel 
 mortgages, however, almost invariably contain an express 
 grant of the power to secure the satisfaction of the debt by 
 an absolute sale of the mortgaged chattels. This power, 
 when given in a chattel mortgage corresponds in every es- 
 
 1 Brown V. Greer, 13 Ga. 285; Broadhead v. McKay, 46 Ind. 595; 
 Morris I!. Tillson, 81 111. 607; Hammer^ w. Dole, 61 III. 807; Dupuy v. 
 Gibson, 36 111. 197; Hall v. Bellows, 11 N. J. Eq. 333; Freeman v. Free- 
 man, 17 N. J. Eq. 44 ; Charter v. Stevens, 3 Den. 33 ; Wylder v. Crane, 
 53 111. 490; Aldrich u. Goodell, 75 111. 452; Packard ». Kingman, 11 Iowa, 
 219; Blakemore v. Taber, 22 Ind. 466. 
 
 2 Briggs V. Oliver, 68 N. Y. 336; Bich v. Milk, 20 Barb. 616. 
 
 3 Marx V. Davis, 56 Miss. 745; Long Dock Co. v. Mallery, 12 N. J. 
 Eq. 93. 
 
 < 2 Jones on Mortgages, §§ 1368, 1442; Tiedeman on Real Prop., 
 ^$358, 362. 
 
 413 
 
§ 250 CHATTEL MORTGAGES. [CH. XVI. 
 
 sential particular to the implied power which the pledgee 
 has as an incident of his pledge. In most of the States, the 
 exercise of the power is. subjected to statutory regulation, 
 and it is needless to state that the requirements of the 
 statute must be strictly observed, in order that the sale 
 might be valid. The usual requirements are that the sale 
 shall be public, after due notice by publication of the time 
 and place, and in every way conducted in good faith 
 towards the mortgagor. 
 
 But in the absence of statutory requirements, the sale 
 may be conducted in any way, consistent with perfect 
 good faith and fairness towards the mortgagor. This is 
 the only general requirement in the absence of statute.^ 
 Unless otherwise required, subject always to the general 
 requirement of good faith and fairness towards the mort- 
 gagor, the mortgagee may sell at private sale, instead of at 
 public auction, certainly where he takes possession of the 
 property,^ or he is authorized to sell at either kind of sale.* 
 Nor is the customary notice to the mortgagor absolutely 
 necessary, if made at private sale.* The sale may be made 
 of the mortgaged goods in different parcels, or in one 
 lump, according to which promises to yield the largest re- 
 turns, the law ordinarily presuming, in the absence of proof 
 to the contrary, that it is to the advantage of the mort- 
 gagor to sell in lots or pai'cels, suited to the convenience 
 of the bidders.^ And where the sale is made by parcels, 
 
 1 Stoddard v. Dennison, 38 How. Pr. 296; Hall v. Ditson, 55 How. Pr. 
 19; 5 Abb. N. C. 198; Robinson v. Bliss, 121 Mass. 428; Gordon u. 
 Clapp, 113 Mass. 335; Hale v. Omaha Nat. Bank, 64 N. Y. 550; Hungate 
 u. Reynolds, 72 HI. 425. 
 
 2 Waite V. Dennison, 51 111. 319; "Wylder v. Crane, 53 HI. 490; Hun- 
 gate V. Reynolds, 72 111. 425; McConnell v. People, 84 111. 583. 
 
 8 Chamberlain v. Martin, 43 Barb. 607; Harris v. Lynn, 26 Kan. 281. 
 
 ' Wylder v. Crane, 53 111. 490, 493; Ballon o. Cunningham, 60 Barb. 
 425; Chamberlain v. Martin, 43 Barb. 607; Huggans v. Fryer, 1 Lans. 276. 
 
 * Hannah v. Carrington, 18 Ark. 85; Hungate v. Reynolds, 72 111. 425 j 
 Stromberg v. Llndberg, 25 Minn. 513. 
 414 
 
CH. XVI. j CHATTEL MOltTGAGES. § 250 
 
 it should be brought to an end, as soon as the proceeds are 
 sufficient to satisfy the mortgagee's claim. The continu- 
 ance of the sale after that point is reached would amount 
 to an unlawful conversion.^ The mortgagee may sell upon 
 credit j** but he cannot barter or exchange the mortgaged 
 property for other property.^ If it should seem on a rea- 
 sonable review of the case to the interest of all parties 
 concerned to postpone or adjourn the sale, the mortgagee 
 has the right to do so.* 
 
 But, unless specially authorized to do so in the mort- 
 gage, the mortgagee cannot be a purchaser of the mort- 
 gaged property at his own sale, on the general ground 
 that he could. not act as a vendor and vendee in the same 
 transaction, without endangering the interests of the mort- 
 gagor, since their interest would in such a case be antag- 
 onistic. A mortgagee's purchase at his own sale, whether 
 direct or indirect, is, however, not absolutely void, but 
 voidable at the instance of the mortgagor.^ /i'^^^'>€* ^ /^'V 
 
 1 Charter v. Stevens, 3 Denio, 33. ^2,*.^ 
 
 2 Williams v. Hatch, 38 Ala. 338. 
 
 3 Edwards v. Cottrell, 43 Iowa, 194. See Williamson u. Berry, 8 How. 
 496; Bigley v. Rlsher, 63 Pa. St. 152. 
 
 * Hosmer a. Sargent, 8 Allen, 97, citing Richards v. Holmes, 18 How. 
 143. 
 
 « Korns v. Shaffer, 27 Md. 83; Hungate v. Reynolds, 72 111. 425; Web- 
 ber v. Emmerson, 3 Col. 248; Pettibone v. Perkins, 6 Wis. 616; Alger v. 
 Farley, 19 Iowa, 618; Goodell v. Dewey, 100 111. 308; Emmons v. Hawu, 
 75 Ind. 356; Massey v. Hardin, 81 111. 330; Beard ». Westerman, 3? 
 Ohio St. 29; Imboden v. Hunter, 23 Ark. 622; People ■o. Wiltshire, 9 
 Bradw. 374; Gear u. Schrei, 57 Iowa, 666; Cunningham ». Rogers, 1 + 
 Ala. 147; Boyd v. Beaudin, 54 Wis. 193; Phrase u. Barbour, 49 111. 370; 
 Waite V. Dennison, 51 111. 319. The same rule is held to apply to the 
 purchase of the mortgaged goods by the creditor, where the chattel 
 mortgage and power of sale have been given to one in trust for him, and 
 the sale is conducted by the trustee. Hannah i>. Carrington, 18 Ark. 85. 
 But see, contra, Lyon v. Jones, 6 Humph. 533, which enunciates the bet- 
 ter rule. In New York and South Carolina the mortgagee is held to be 
 authorized to purchase at his own sale. Hall ». Ditson, 55 How. Pr. 19; 
 f^31eottJ^ T^oga R. R. Co., 27 N. Y. 54 6; Black o. Hair, 2 Hill (S. C.) Eq' 
 622 ; Mills c. WUliams, 16 S. C. 593. 
 
 415 
 
CHAPTEK XYII. 
 
 INVOLUNTARY SALES, INCLUDING SALES BY LEGAL PROCESS. 
 
 Section 252. General propositions as to involuntary alienation. 
 263. Sale by guardian of ward's personal property. 
 
 254. Husband's power to sell his wife's personal property. 
 
 255. Attachment and execution. 
 
 256. Judicial sales, what are. 
 
 257. The general requirements of judicial and execution sales. 
 
 258. Who may make the sale. 
 269. When sale must be public. 
 
 260. Notice of the sale. 
 
 261. Place of sale. 
 
 262. Sale in parcels. 
 
 263. Terms of sale. 
 
 264. Sale after return day. 
 
 265. Adjourament of the sale. 
 
 § 252. General propositions as to involuntary aliena- 
 tion. — It is true with personal, as with real property, that 
 as a general rule the property of one man cannot by legisla- 
 tive enactment be taken away and given to another. Not 
 only is this true in respect to known and recognized owners 
 of personal property, but it is also true where the property 
 is not claimed by any visible or known owner. Thus it 
 was held in North Carolina to be unconstitutional for the 
 State by statute to appropriate the unclaimed dividends of 
 private corporations to public uses.^ For the same reasons 
 the legislative diversion of a bequest to a different use, than 
 what was provided by the donor, was held to be unconstitu- 
 tional, although in both cases the State was the beneficiary. 
 
 1 University of North Carolina v. N. C. R. R. Co., 76 N. C. 103 (22 
 Am. Rep. 671). 
 416 
 
CH. XVir.J INVOLUNTARY SALES. § 250 
 
 The diversion was an interference with the reversionary in- 
 terest of the donor's next of kin.* 
 
 But, notwithstanding this general rule, there are a few 
 exceptional cases in which the State may lawfully dispose 
 of one's personal property against his will. They are 
 principally cases, in which the State authorities interfere 
 with one's property and proceed to sell it for the purpose 
 of satisfying the claims of creditors, private or public, or 
 in order to prevent loss to the owner, where the owner can- 
 not on account of some mental or other disability malie 
 the sale himself. These will be discussed seriatim in the 
 succeeding paragraphs. In some of the State .constitutions 
 there is a provision against the enactment of special laws 
 operating upon particular individuals or upon their prop- 
 erty. In those States, therefore, inVoluntary alienation 
 can only be effected by a general law, api)licable to all per- 
 sons under like circumstances. But in the absence of such 
 a constitutional provision, the transfer of property may be 
 made by special act of the legislature, as well as under a 
 general law,^ unless the transfer by special act would in- 
 volve the assumption by the legislature of judicial power, 
 when it will be held to be void , under the general constitu- 
 tional provision which denies to the legislature the exercise 
 of judicial power.* 
 
 It seems to be very doubtful whether there is any room 
 for the application of the principles of eminent domain to 
 personal property, although Mr. Cooley claims that the 
 State may, in the exercise of its right of eminent domain, 
 appropriate to a public use private property of every de- 
 scription.* This is confounding the meaning of terms, if 
 
 1 Trustees Book Academy v. George, 14 W. Va. 411 (35 Am. Bep. 760). 
 
 2 Sohler v. Mass. Gen. Hospital, 3 Cush. 483; Kibby v. Chitwood, 4 B. 
 Mon. 95; Edwards v. Pope, 4 111. 473. 
 
 3 Ricec. Parkman, 16 Mass. 326; Jones ». Perry, 10 Yerg. 59; Lane v. 
 Dorman, 4 111. 238; Edwards v. Pope, 4 111. 473. 
 
 < Cooley Const. Lira. 649, 652, 653. 
 
 27 417 
 
§ 252 INVOLUNTARY SALKS. [cH. XVII. 
 
 by the term "eminent domain" is meant, as its history 
 would seem to indicate, that superior and absolute right of 
 property which the State, as the legal representative* of 
 organized society, has in the lands within its borders, and 
 subordinate to which all private property therein is held.^ 
 But whether this be true or not, it is quite probable that, 
 in cases of extreme necessity, the State may appropriate 
 the personal property of the citizen on payment of its full 
 value. At least this is the case in time of war. The gov- 
 ernments of all civilized nations exercise this power of ap- 
 propriation of personal property, in order to supply them- 
 selves with whatever is needful in the prosecution of the 
 war ; and the forcible and irregular seizure of property by 
 military commanders have been justified, when the necessity 
 was urgent and such as would admit of no delay, and where 
 the civil authorities would be too late in providing the 
 means required for the occasion.^ Not only does the State, 
 in time of war, appropriate whatever personal property 
 they may need for the prosecution of the war, as food or 
 ammunition or weapons of warfare, but it more frequently 
 makes forced loans of capital from its people by compelling 
 them to accept its treasury notes as legal tender in payment 
 of debts both public and private, and that, too, in time of 
 peace, as well as during a war.^ 
 
 It is quite likely that the State may, in any other case of 
 extrpme necessity, appropriate whatever of private prop- 
 erty maybe needful to satisfy some urgent general want. 
 Suppose, for example, in the case of a general failure of 
 the crops, a famine should occur, and those who did pos- 
 sess stocks of provisions refused to sell at any reasonable 
 price, or refused to sell at all, while the people were being 
 
 1 See Tledeman's Limitations of Police Power, § 121. 
 
 2 Parmer v. Lewis, I Bush, 66. See Harmony v, Mitchell, 1 Blatchf . 
 549 ; Mitchell v. Harmony, 13 How. 115. 
 
 ' See Tiedeman's Limitations of Police Power, § 90. 
 418 
 
CH. XVII.] INVOLUNTAKY SALES. § 253 
 
 carried along to the extremity of starvation. Could not 
 the State compel those, who had a " corner " on the pro- 
 vision market, to deliver up their property for the public 
 good, on payment of a reasonable price? Every one has, 
 under the ordinary constitutionul limitations, a right to put 
 on his goods whatever price his Judgment, his cupidity, or 
 other feeling might prompt, subject ordinarily to no regu- 
 lation by the State. ^ But when the public want of food and 
 clothing becomes so great that the Iioarding of the existing 
 supply will be sure to give rise to serious disturbances of 
 the public peace and the violent appropriation of the things 
 which are denied tliem, — not to consider the moral offense 
 of withholding food from starving people — it is idle to 
 speak of the sacredness of private property. It cannot be 
 doubted that an official appropriation of articles of food, 
 under circumstances of such urgent necessity, would be ju- 
 dicially justified on the plea of necessity, however illogical 
 it may seem. 
 
 § 253. Sale by guardian of ward's personal property. — 
 
 Persons who suffer from mental disability either through 
 tenderness of age, as in the case of infants, or through de- 
 mentia, as in the ca~e of the insane person, the habitual 
 drunkard,^ or the spendthrift, •'* are placed under the per- 
 sonal control of a guardian, while their property is like- 
 wise cared for by a guardian or curator. As to the per- 
 sonal control of these persons, nothing need be said in this 
 place. The guardian or curator, of course, takes possession 
 of the property of his ward in a fiduciary character, and is 
 
 1 See Tiedeman'8 Limitations of Police Power, § 95. 
 
 2 The derangement of mind resulting from habitual drinking of in- 
 toxicating liquors, would place the drunkard in the same category with 
 the ordinary lunatic. Wadsworth v. Sharpsteen, 8 N. Y. 388 ; ImhofE w. 
 Whitmer, 21 Pa. St. 243; Devin v. Scott, 34 Ind. 67. 
 
 3 Schouler Dom. Eel. 404. As to the power to subject spendthrifts 
 to the control of a guardians, see Tiedeman's Limitations of Police 
 Power, § 138. 
 
 419 
 
§ 255 INVOLUNTAKT SALES. [f IJ . XMI. 
 
 required to deal honestly and justly, being generally placed 
 under the supervision of the probate or orphan's court and 
 required to make periodical settlements with the approval 
 of the court. But, in the absence of statutes to the con- 
 trary, the guardian has the ordinary power of selling the 
 personal property of the ward, without any order of court, 
 and whenever he should deem it advisable to do so.^ But, 
 a guardian cannot mortgage his ward's property, except in 
 pursuance of an order of court. ^ 
 
 § 254. Husband's power to sell his wife's personal 
 property. — This subject has been already sufficiently dis- 
 cussed in another place,* and it is unnecessary to say any 
 thing further here. 
 
 § 255. Attachment and Execution. — Attachment and 
 execution are both legal processes, whereby the creditor is 
 enabled to recover of his debtor sufficient property, by a 
 sale of which to satisfy his claim. Both are statutory 
 writs, and depend for their scope, and the limitation under 
 which they can be issued, upon the provisions of the 
 statutes of the several States. By these writs, the officer 
 to whom they are directed, usually the sheriff, is required 
 to seize sufficient property of the debtor to satisfy the 
 creditor's claim, and to sell the same, applying the pro- 
 ceeds of sale to the liquidation of the debt. The attach- 
 
 1 Schouler Dom. Rel. 461-479; Field ». SchiefEelin, 7 Johns. Ch. 150; 
 Wallace v. Holmes, 9 Blatchf. 67; Humphrey v. Buisson, 19 Minn. 182; 
 Woodward v. Donally, 27 Ala. 198. But see, comtra, McDuffie v. Mclu- 
 tyre, 11 S. C. 651. In California, a statute requires an order of court in 
 every case. Kendall v. Miller, 9 Cal. 591; De L. Montague v. Union Ins. 
 Co., 42 Cal. 290. 
 
 2 Sample v. Lane, 45 Miss. 556; Merritt v. Simpson, 41 m. 391; Wood 
 V. Truax, 39 Mich. 628; Battell v. Torrey, 65 N. Y. 294; United States 
 Mortgage Co. ». Sperry, 24 Fed. Rep. 838; Edwards v. Taliaiero, 34 
 Mich. 13; Lovelace v. Smith, 39 Ga. 130. 
 
 3 See ante, §§ 27-30. 
 
 420 
 
CU. XVII.] INVOLUNTARY SALES. § 255 
 
 ment is issued at the beginning of the suit between the 
 creditor and his debtor, whenever, in consequence of the 
 absconding of the debtor, or of his attempt to commit 
 fraud, the creditor is in danger of losing his claim. The 
 attachment is conditional upon the recovery of a judgment, 
 and upon the procurement of a judgment for the debt, (he 
 property is sold by the sheriff, in the same manner as he is 
 required 1o do in the case of a levy of execution. The 
 levy of execution is made on a judgment debtor's property 
 in satisfaction of the judgment which has been previously 
 obtained against him. In both cases, the effect of the levy 
 is to take the right of possession out of the debtor and to 
 vest it in the sheriff, who is thereby authorized to maintain 
 the possessory actions against any one who interferes with 
 the possession of the sheriff, during the continuance of the 
 execution,^ and prev&nts any seizure of the same goods 
 under other writs. ^ The title which the sheriff acquires 
 by his seizure under these writs is fiduciary in character, 
 and is given him for the purpose of enabling him to sell 
 the property at public sale to the highest bidder, and with 
 the proceeds of sale to pay the judgment which constitutes 
 the basis of the levy. If the debt is paid before a sale, 
 the execution is satisfied, and the title reverts to the 
 original owner. ^ 
 
 The requirements of the law in respect to the mode of 
 
 1 Dunkin o. MeKee, 23 Ind. 447; Weatherby v. Covington, 3 Strobh. 
 27; Williams v. Herndon, 12 B. Mon. 484; Brewster ». Vail, 1 Spencer 
 (N. J.), 56; Dezell ». Odell, 3 Hill, 215; Fuller d. Loring, 42 Me. 488; 
 Parker v. David, 45 Miss. 488 ; Sherman v. Howell, 40 Ga. 257 ; Martin v. 
 Watson, 8 Wis. 315; Howland v. Wells, 9 N. Y. 173. 
 
 ' Hagan v. Lucas, 10 Pet. 400; Freeman «. Howe, 24 How. 450; Wine- 
 gardner v. Hafer, 15 Pa. St. 144; Payne v. Dreme, 4 East, 523; Smith v. 
 Mclven, 9 Wheat. 532 ; Wood v. Lake, 13 Wis. 34 ; Hackley v. Swigert, 
 5 B. Mon. 86; Hardy v. Tilton, 68 Me. 195; Lewis v. Buck, 7 Minn. 104; 
 Riggs V. Johnson, 6 Wall. 197; Buckey v. Snoufeer, 10 Md. 149; Sterling 
 V. Welcome, 20 Wend. 228; Covell v. Hyman, 111 U. S. 176; Pipher v. 
 Fordyce, 88 Ind. 436. 
 
 2 See Beard v. Millikan, 68 Ind. 231; Morris v. Lake, 9 Sm. & M. 621. 
 
 421 
 
§ 25(J INVOLUNTAKY 8ALK8. [CH. XVII. 
 
 conducting sheriff's sales are so much lilie those which 
 apply to judicial sales, that it will not be necessary to dis- 
 cuss them separately. They will be presented in succeed- 
 ing pages. 
 
 § 25(3. Judicial sales, what are. — A judicial sale is 
 one which is made, in pursuance of an order or decree from 
 a court of competent jurisdiction, by the officer who is ap- 
 pointed to conduct the sale. The court is properly con- 
 sidered the vendor, the officer who makes the sale being 
 merely the instrument or agency of the court. ^ Since a 
 judicial sale is defined to rest for its validity upon some 
 special decree of the court, the sale on execution is not 
 strictly a judicial sale,^ unless such a sale is required, as is 
 the case in several of the States, to be confirmed by the 
 court, when it is strictly proper to class it with judicial 
 sales.* In these respects, judicial sales are said to be dis- 
 tinguishable from sales on execution ; first, as already 
 stated, in that the former proceeds from a judicial decree ; * 
 secondly, that the action, in which the decree is given, is 
 
 1 Bozza o. Rowe, 30 111. 198; Armor v. Cochrane, 66 Pa, St. 308, ail ; 
 Harrison v. Harrison, 1 Md. Ch. 333; Hurt v. Stull, 4 Md. Ch. 393; 
 Williamson v. Berry, 8 How. 547; Chew v. Hyman, 7 Fed. Rep. 7; Hutton 
 V. Williams, 35 Ala. 503; Saclset v. Twining, 18 Pa. St. 202; Vanderver 
 V. Baker, 13 Pa. St. 126; Halleck v. Guy, 9 Cal, 181; Ketchum v. Schieke- 
 tanz, 73 Ind. 137 ; McCracken v. Kuhn, 73 lud. 149 ; Diesback v. Stein, 
 41 Ohio St. 70; Sturdevant v. Norris, 30 Iowa, 65. 
 
 2 Griffiths;. Fowler, 18 Vt. 394; Hershy ». Latham, 42 Ark. 305; Gowan 
 V. Jones, 10 Sraed. & M. 164; Andrews v. Scotton, 2 Bland (Md.), 629; 
 Forman v. Hunt, 3 Dana, 614, 621; McKee v. Lineberger, 69 N. C. 219. 
 
 3 Griffith V. Bogert, 18 How. 159, 164; Eakin v. Herbert, 4 Coldw. 
 116; Curtis v. Norton, 1 Ohio, 278; Minnesota Co. ». St. Paul Co., 2 
 Wall. 609 ; Thompson v. Phillips, Baldw. 246, 272 ; Baily v. Baily, 9 Rich. 
 Eq. 392, 395; Smith v. Arnold, 5 Mass. 414, 420. Under the Indiana 
 statute execution sales are held to be judicial sales. Taylor v. Stock- 
 well, 66 Ind. 505; Jackman v. Nowllng, 69 Ind. 188; Lawson v. DeBolt, 
 78 Ind. 663. 
 
 * Andrews v. Scotton, 2 Bland (Md.), 629; Forman v. Hunt, 3 Dana 
 (Ky.), 614, 621; McKee v. Lineberger, 69 N. C. 219. 
 422 
 
CH. XVII. J INVOLUNTARY SALES. § 258 
 
 ■wholly or partly in rem;'^ and, thirdly, that judicial sales 
 are not within the statute of frauds, while execution sales 
 are.^ 
 
 But, notwithstanding this difference in the origin of 
 judicial and execution sales, they are both so much alike in 
 their effect, both being involuntary sales, by which the 
 owner is divested of his property against or without his 
 assent, that the same general requirements as to the manner 
 of conducting the sale are applicable to both classes of 
 sales, and hence what is stated in the succeeding para- 
 graphs, applies to execution, as well as to judicial, sales 
 unless it is otherwise stated. 
 
 § 257. The gfeneral requiremeiits of judicial and exe- 
 cution sales. — It is very common for the statutes of a 
 State to contain regulations concerning the conduct of all 
 sorts of public sales, and more especially in the case of 
 sales on execution. And where there are statutory require- 
 ments, they must be strictly obeyed, in order that the sale 
 may be valid. But, even in the absence of statutory regu- 
 lations, some formalities are required, to which reference 
 will be made. It -will be impossible, in an elementary 
 treatise like the present book, to give the statutory require- 
 ments in detail, and the present text is confined to a state- 
 ment of the general requirements of public sales. 
 
 § 258. Who may make the sale. — If it be a judicial 
 sale, the officer who is named in the order or decree must 
 conduct the sale, and no one else,^ except the officer 
 
 1 Grignon v. Astor, 2 How. 319; Beauregard ». New Orleans, 18 How. 
 497, 502. The sale under writ of attachment is based upon an action in rem. 
 
 2 Watson's Admr. v. Violett, 2 Duv. 332; Atty.-Gen. v. Day, 1 Ves. 
 Sr. 218; Blagden v. Bradbear, 12 Ves. 466. 
 
 s Chambers v. Jones, 72 111. 275. If two or more commissioners are 
 appointed by the court to conduct the sale, all must join in the sale to 
 make It valid, unless there is a statute providing the contrary. Gross v. 
 Pearcy, 2 Pat. & H. (Va.) 483. 
 
 423 
 
§ 259 INVOLUNTARY SALES. [CH. XVII. 
 
 or officers may appoint an auctioneer to conduct the sale 
 as their agent, in their presence and under their direction. 
 It would not be permissible, however, for the officer to 
 turn the sale over to the discretion of the auctioneer. ^ If 
 the sale is on execution, the writ is directed to the sheriff, 
 generally, and he or his deputy executes it and conducts 
 the sale,^ except that the sheriff cannot execute the writ, 
 when he is himself the judgment creditor.^ But if the 
 sheriff's term of office expires after the levy, but before 
 the sale, he is not only authorized to make the sale,* but 
 he may be compelled to do so.^ If the sheriff dies after 
 the levy it seems that his personal representatives may 
 make the sale.® 
 
 § 259. "When sale must be public. — As a general rule, 
 the judicial as well as the execution sales are required to be 
 by public auction ; and when that is the case, a private sale 
 is invalid.^ But in the case of judicial sales, a private sale 
 
 ' Williamson v. Berry, 8 How. 495; Blossom v. Railroad Co., 3 Wall. 
 196, 205; Heyer v. Deaves, 2 Johns. Ch. 154. 
 
 2 Levett V. Farrar, Cro. Eliz. 294; Wroe v. Harris, 2 Wash. (Va.) 
 126; Tillotson v. Cheetham, 2 Johns. 63; Glasgow's Lessee v. Smith, 1 
 Overt. 144. 
 
 8 River v. Stacy, 8 Humph. 288; Collais v. McLead, 8 Ired. L. 221; 
 Chambers v. Thomas, 3 A. K. Marsh. 536. In such a case, according to 
 the common law, the coroner was the proper party to execute the writ 
 and conduct the sale. 1 Blackst. 349. 
 
 * Purl V. Duval, 5 Har. & J. 69; Evans v. Ashley, 8 Mo. 183; Edwards 
 V. Tipton, 77 N. C. 222; Lofland v. Ewing, 5 Litt. 42; Clark v. Sawyer, 48 
 Cal. 188; Tyree v. Wilson, 9 Gratt. 59; Tukey v. Smith, 18 Me. 126. But 
 see Tennessee Bank v. Beatty, 3 Sneed, 305; Leshey v. Gardner, 3 Watts 
 & S. 314. ' 
 
 5 Clerk «. Withers, 1 Salk. 323; Elkin v. People, 3 Scam. 207; Law- 
 rence V. Rice, 12 Met. 533; State v. Roberts, 7 Halst. 114. His deputy 
 * may also be required to complete the execution of the writ. Lofland v. 
 Ewing, 5 Litt. 42; Jackson v. Collins, 3 Cow. 89; Tyree v. Wilson, 9 
 Gratt. 59; Smith v. Bodfish, 39 Me. 136. 
 
 ^ Read v. Stevens, Coxe, 264; Sanderson v. Rogers, 3 Dev. L. 38. 
 
 ' Hutchinson v. Cassidy, 46 Mo. 431 ; Mc Arthur v. Carrie, 32 Ala. 75; 
 Worten v. Howard, 2 Smed. & M. 527; Gaines v. De la Croix, 6 WalL 719; 
 424 
 
CH. XVII. J INVOLUNTARY SALES. § 260 
 
 may be ordered or permitted, in the discretion of the court. 
 But, unless otherwise expressly provided, it is presumed 
 that the sale must be pubhc' 
 
 § 260. Notice of the sale. — Inasmuch as the sale is 
 generally required to be public, it would also be a conse- 
 quent requirement that due public notice should be given 
 of the proposed sale, in order to attract purchasers. With- 
 out due notice, which usually means by publication in the 
 newspapers,^ there is not much use in having the sale 
 public* But since the requirement of notice is for the 
 benefit of the debtor and owner of the goods, it seems that 
 he may waive the notice, and permit the sale to be made 
 without it.* 
 
 Inasmuch as the notice is intended to attract purchasers 
 to the sale, it must be so constructed as to give to the world 
 knowledge of every thing connected with the proposed sale 
 which is likely to attract purchasers or is necessary to enable 
 one to determine whether it is to his interest to attend the 
 sale. Hence the notice should contain a reasonably specific 
 description of the property to be sold,^ an accurate descrip- 
 tion of the day and the time of the day, when the sale will 
 
 EUett V. Paxson, 2 Watts & S. 418; Neal v. Patten, 40 Ga. 363; Fambro 
 V. Gantt, 12 Ala. 298. But see Tyrrel v. Morris, 1 Dev. & B. Eq. 559 ; 
 Wynus V. Alexander, 2 Dev. & B. Eq. 58. 
 
 ' Ereeman on Void Judicial Sales, § 32; 2 Jones on Mortgages, § 1683. 
 
 2 But if it is impossible for any reason to secure publication in a news- 
 paper, publication by posters and handbills will be sufficient. Walton v. 
 Harris, 73 Mo. 489. 
 
 * Hoffman ». Anthony, 6 E. I. 282 ; Freeman on Executions, § 285. 
 
 ' Burroughs v. Wright, 16 Vt. 619. See Helmer v. Eehm, 14 Neb. 219, 
 as to waiver of defects in the notice by appearance in court. 
 
 6 Allen B. Cole, 9 N. J. Eq. 286 ; Stevens v. Bond, 44 Md. 606 ; Pome- 
 roy V. Winship, 12 Mass. 513; CoUier v. Vason, 12 Ga. 440; Harrison v. 
 Cachelin, 35 Mo. 79; Merwin v. Smith, 1 Green Ch. (^N. J.) 182; Frazier 
 !). Steenrod, 7 Iowa, 339; Helmer v. Eehm, 14 Neb. 219. The cases under 
 this head generally relate to sales of real property, and in these cases 
 greater accuracy in description can be secured than in the case of per- 
 sonal property ; but the same general rule applies. 
 
 4 25 
 
§ 260 INVOLUNTARY SALES. [CH. XVII. 
 
 take place,* the place, ^ and the terms of the sale.^ But, 
 in all these cases, in the absence of statutory provisions a 
 reasonable observance of these requirements is suflBcient. 
 As long as irregularities in respect to them are not material 
 enough to deter or mislead any one, who was disposed to 
 buy, «« or to depreciate the value of the property, or to 
 prevent it from bringing a fair price," the notice will be a 
 sufficient compliance with the law.* 
 
 The requirements of the notice are usually regulated by 
 statute, and where there is such a statute, its provisions 
 will supersede the general rules which the courts would 
 otherwise enforce in respect to this question of notice. The 
 statutes prescribe particularly the length of time of the 
 notice, varying of course with each State. It has been a 
 much discussed question, where the notice is required to be 
 given for a certain number of weeks successively, whether 
 the statutory provision is satisfied if a publication should be 
 made once each week for the given number of weeks, pro- 
 viding for the sale to take place before the lapse of the full 
 number of weeks after the first publication. Or, to be a 
 little more specific, if the notice is required to be published 
 
 1 renner v. Tucker, 6 E. I. 551. It is sufflcieut to describe the time 
 of day as being between certain hours. Coxe v. Halstead, 2 N. J. Eq. 31 1 ; 
 Burr V. Borden, 61 III. 388; Trustees v. Snell, 19 111. 156; Norihrop ». 
 Cooper, 23 Kan. 432. See Thornworth u. Armstrong, 20 Minn. 464. In 
 Missouri, it is held to be unnecessary for the notice to state the time of 
 day, where the statute prescribes the time of day -when all public sales 
 should be conducted. Evans v. Eobbenson, 92 Mo. 192. 
 
 ' Bottineau v. Mtna Life Ins. Co., 81 Minn. 125, 126; Burnetii. Den- 
 niston, 5 Johns. Ch. 35; Blodgetti;. Hitt, 29 Wis. 179; Hinsonv. Hiuson, 
 5 Sneed, 322. 
 
 s Farr v. Sims, Bich. Eq. 122. This can, however, be the case only 
 where the court authorizes the sale to be made on credit. In the absence 
 of a special authorization, the sale has to be for cash, and, therefore, need 
 not be stated. 
 
 * Hoftaan v. Anthony, 6 E. I. 282; 75 Am. Dec. 701, 704, Free- 
 man's note; Mowry v. Sanborn, 68 N. Y. 163; Chandler v. Cook, 2 
 McArthur, 176; Gray v. Shaw, 14 Mo. 341; Jensen «;. Weinlander, 2a 
 Wis. 477. 
 
 4i?fi 
 
CH. XVU ] INVOLUNTARr SALES. § 2G0 
 
 weekly for four weeks successively, and the first notice was 
 published on the first of the month, could the sale take 
 place any day after the twenty-first day of that month, or 
 must twenty-eight days after the first notice expire before 
 the sale can take place? This question has been answered 
 by the courts variously, some of the decisions maintaining 
 the former,! -^yhile many hold to the latter ruling.^ But an 
 excess of time in giving the notice will not afiect the validity 
 of the sale.^ 
 
 It is also a doubtful question, where the statutes require 
 a certain notice to be given of administrator's and guardian's 
 sales, whether the failure to comply with these require- 
 ments would make the sale absolutely invalid* or only 
 voidable, the exception to the sufficiency of the notice being 
 required to be taken when the sale comes up in court for 
 confirmation, and cannot be taken afterwards.^ It has also 
 been held that as against the purchaser, these statutory re- 
 quirements are only directory, and, therefore, as to him, 
 the sale cannot be avoided on account of a failure to comply 
 with the statutory requirements.* 
 
 > Garrett v. Moss, 20 111. 554; Olcott v. Eobinson, 21 N. Y. 150; Wood 
 ■u. Knapp, 100 N. Y. 109 ; Howard v. Hatch, 29 Barb. 297 ; Morrow v. 
 Weed, 4 Iowa, 77. 
 
 2 Meredith v. Chancey, 59 Ind. 466; Boyd v. McFarlln, 58 Ga. 208; In 
 re North Whitehall Twp., 27 Pa. St. 156. See, also, Smith v. Rowles, 85 
 Ind. 264; German Bank i). Stumpf, 73 Mo. 311; Enochs i;. Miller, 60 Miss. 
 19; Bacon D. Kennedy, 56 Mich. 829. 
 
 3 Wilson's. Scott, 29 Ohio St. 636; Tooke v. Newman, 75 111. 215. See 
 Taylor «. Eeid, 103 111. 349. 
 
 * See, to that effect, Thomas v. Le Baron, 8 Met. 363; Gernon v. Be- 
 stick, 15 La. An. 697; Mountour v. Purdy, 11 Minn. 384; Blodgett?;. Hitt, 
 29 Wis. 169; Corley's Succession, 18 La. An. 728. 
 
 5 See, to that effect. Morrow ». Weed, 4 Iowa, 77; Hanks ». Neal, 44 
 Miss. 212; Mofflttv. Moffltt, 69 111. 641; Hudgens c. Jackson, 51 Ala. 514; 
 McNair v. Hunt, 5 Mo. 301; Bland v. Muncaster, 24 Miss. 62. 
 
 * Maddox v. Sullivan, 2 Rich. Bq. 4 (44 Am. Dec. 234 note) ; Burton v. 
 Spiers, 92 N. C. 603; Ware v. Bradford, 2 Ala. 676; Fink v. Roe, 70 Cal. 
 296. But see, contra, Henderson v. Hays, 41 N. J. L. 387; Herrick ». 
 Ammerman, 32 Minn. 544; Hughes v. Watl, 26 Ark. 228. 
 
 427 
 
§ 262 INVOLUNTARY SALES. [CH. XVII. 
 
 § 261. Place of sale. — In regard to the sales of real 
 property, the requirements as to the place of sale are more 
 specific, but in respect to the sales of personal property, the 
 only general requirement seems to be that the sale must be 
 conducted in the presence of the property, in order that the 
 prospective purchasers may examine it. And a failure to 
 comply with this requirement will generally invalidate the 
 sale.^ But it is not necessary that the goods should be di- 
 rectly in front of the auctioneer, or in his hands, if they 
 are on the same premises, and open to inspection.^ And if 
 only a part of the goods is present, the sale will be valid as 
 to that part.^ 
 
 § 262. Sale in parcels. — Inasmuch as the interests of 
 the debtor and owner of the goods will be better subserved, 
 if the goods are sold in separate parcels, this will be re- 
 quired of the officer.* But if the officer ignores this require- 
 ment and sells in bulk, the sale is not absolutely void, btit 
 only voidable.^ And in Pennsylvania, if a sheriff, under an 
 
 ' Murphy v. Hill, 77 Ind. 129; Wright v. Mack, 95 Ind. 332; Tibbetts v. 
 Jageman, 58 111. 43 ; Stief v. Hart, 1 N. Y. 20 ; Hazard v. Burton, i Harr. 
 62; Ainsworth v. Greenlee, 3 Murph. 470; Bostick v. Keizer, 4 J. J. 
 Marsh. S97; Collins v. Montgomery, 2 Nott & McC. 392; Gift-!;. Anderson, 
 6 Hump. 577; Cresson v. Stout, 17 Johns. 116; Newman v. Hook, 3^7 Mo. 
 207 ; Kennedy v. Clayton, 29 Ark. 270. See, also, Eads v. Stephens, 63 
 Mo. 90. In Alabama, the sale is on that account only voidable. Foster 
 V. Mabe, 4 Ala. 402. 
 
 2 McNeely v. Hart, 8 Ired. L. 492. 
 
 s Linnen Doll v. Doll, 14 Johns. 222. 
 
 * Wright V. Mack, 95 Ind. 332. 
 
 ^ Weaver v. Gayer, 59 Ind. 195; Jones v. Kokomo Bldg. Assn., 77 Ind. 
 340; Nelson i>. Bronnenburg, 81 Ind. 193; Sheehau «. Stackhouse, 10 Mo. 
 App. 469; Aldrich v. Wilcox, 10 K. I. 405; Bell u. Taylor, 14 Kan. 277; 
 Foley V. Kane, 53 Iowa, 64 ; Rector v. Hartt, 8 Mo. App. 448 ; Bouldin v. 
 Ewart, 63 Mo. 330 ; Cunningham v. Cassidy, 17 N. Y. 276 ; Smith v. Scholtz, 
 68 N. Y. 41; Bunker v. Hand, 19 Wis. 253. But see, contra, Mays©. 
 Wherry, 58 Tenn. 133; Lee v. Mason, 10 Mich. 403; Banks v. Bales, 16 
 Ind. 423; Catlett v. Gilbert, 23 lad. 614; Tyler v. Wilkerson, 27 Ind. 450. 
 The most of the cases cited in this note are sales ot real property, but 
 the principle is practically the same In both classes of cases. 
 428 
 
CII. XVII.] INVOLUNTAEY SALES. § 264 
 
 execution, sells goods in bulk at the direction of the judg- 
 ment creditor, and there is no requestfrom anyone present 
 to conduct the sale in any other way, the salo being in every 
 other respect fair and honest, it is held that the sale is valid 
 and cannot be avoided.' 
 
 § 263. Terms of sale. — Unless, in the case of judicial 
 sales, the court decrees otherwise, the general rule in execu- 
 tion and judicial sales is that the sale must be for cash to 
 the highest bidder.^ The title does not pass until the pay- 
 ment of the price. =* And if payment is not made within a 
 reasonable time after the sale, the sale maybe declared void 
 and a second sale ordered.^ 
 
 § 264. Sale after return day. — If a sheriff levies upon 
 personal property while the writ of execution is still in force, 
 he will not be prevented from selling the property, because 
 he cannot sell before the return day of the writ. He can 
 lawfully sell the property afterward.^ Not only does he 
 acquire a title to the property by the levy, which would 
 alone entitle him to proceed with the sale, notwithstanding 
 the expiration of the day for the return of the writ ; ^ but 
 
 1 Smith V. Meldren, 107 Pa. St. 348. See also Furbush v. Green, 108 
 Pa. St. 503. 
 
 2 Veazie v. Williams, 8 How. 134; Swope v. Ardery, 5 Ind. 213; Irby 
 V. Irby, 11 Lea, 165; Richards v. Adamson, 48 Iowa, 248; Isler v. An- 
 drews, 66 N. C. 552 ; Foster v. Thomas, 21 Conn. 285; Swatzell v. Martin, 
 16 Iowa, 619; Chapman v. Harwood, 8 Blackf. 82. 
 
 3 Hardesty v. Wilson, 2 Gill, 481; Ruckle v. Barbour, 48 Ind. 274; 
 Leach v. Koenlg, 65 Mo. 451. The title does not even pass, where the 
 officer charges himself with the price. State v. Lawson, 14 Ark. 1 14. 
 
 * Hardesty V.Wilson, 2 Gill, 481; Conklin «. Smith.r Ired. 107; Durn- 
 ford V. Degruys, 8 Mart. (La.) 220. 
 
 s Spang u. Conn, 12 Pa. St. 360; Barnard v. Stevens, 2 Aik. (Vt.) 429; 
 Lester's Case, 4 Humph. 384; Logsdon v. Spivey, 54 111. 104; Evans u. 
 Governor, 18 Ala. 659. 
 
 « Bondurant v. Burlurd, 1 Ala. 359; Overton v. Perkins, 10 Yerg. 329. 
 The same reason seems to justify the sale under the levy, notwithstand- 
 ing the expiration of the term of office of the sheriff or his death before 
 sale. See ante, § 258. 
 
 429 
 
§ 265 INVOLUNTAEY SALES. [CH. XVII. 
 
 the levy and sale are considered only pai-ts of one transac- 
 tion, so that he who does the one is authorized to complete 
 the transaction. 1 
 
 § 265. Adjournment of the sale. — In most of the 
 States, it is permitted for officers charged with judicial and 
 execution sales, in the exercise of a wise discretion, to ad- 
 journ the sale to a subsequent day, in order to protect or 
 further the interests of the debtor.^ And if there was no 
 one present at the sale but the plaintiff in execution, it is 
 the duty of the officer to postpone the sale,* even against 
 the objections of the plaintiff.* But the power to adjourn 
 the sale can only be exercised by the officer ; it cannot be 
 delegated to any one else.^ 
 
 The adjournment may be to a different place, as well as 
 to a different time.® Some sort of notice must be given 
 of the adjourned sale ; and while it would seem necessary 
 to advertise it after the same manner and to the same ex- 
 tent as was the original sale, and such is the opinion of 
 many of the courts; ' it is also held that the public proc- 
 
 1 Rudd V. Johnson, 5 Litt. 19; Smith v. Spencer, 3 Ired. 256; Hamil- 
 ton «. Ward, 4 Tex. 363; Neilson v. Churchill, 5 Dana, 333. 
 
 2 Swartzell v. Martin, 16 Iowa, 519; Strong v. Cotton, 1 "Wis. 471; 
 Kelly V. Green, 63 Pa. St. 299; Den v. Zellers, 2 Halst. (N. J.) 153; 
 Jewett V. Guyer, 38 Vt. 209; Goddard v. Sawyer, 9 Allen, 78; Warren v. 
 Iieland, 9 Mass. 265; Russell v. Richards, 11 Me. 371 ; Aldrich v. Wilcox, 
 10 K. I. 405; Reynolds v. Hoxsie, 6 R. I. 463; Aldrich v. Grimes, 14 R 
 I. 219; Blossom ». Railroad Co., 3 Wall. 196, 209; Collier ■». Whipple, 13 
 Wend. 229; Thornton v. Boyden, 31 111. 200; Kelly v. Israel, 11 Paige 
 oil. 152; Richards v. Holmes, 18 How. 147. 
 
 s McMichael v. McDermott, 17 Pa. St. 353; Strong v. Catton, 1 Wis. 
 471. 
 
 * McDonald v. Neilson, 2 Cow. 139. 
 
 * Wolf V. Van Metre, 27 Iowa, 348. 
 
 * Richards v. Holmes, 18 How. 143; Jewett v. Guyer, 38 Vt. 209. 
 
 ' Thornton v. Boyden, 31 111. 200; Montgomery v. Barrow, 19 La. An. 
 169; Williams v. Barlow, 49 Ga. 530; Griffin v. Marine Co. of Chicago, 
 52 111. 130; Patten v. Stewart, 26 Ind. 395; Enloe v. Miles, 12 Smed. & 
 M. 147. But see Dexter v. Shepard, 117 Mass. 480. 
 430 
 
CH. XVII. ] INVOLUNTARY SALES. § 265 
 
 lamation of the adjournment at the time of the original 
 sale, with due notice of the time and place of the adjourned 
 sale, will be a sufficient notice.^ 
 
 But while the foregoing is the rule of the majority of the 
 courts, a minority of the courts hold that the officer is not 
 authorized in the absence of express grant of power to 
 adjourn a sale,^ and if the officer should be prevented, 
 by the want of bidders, from maiiing the sale, he should 
 make a return with a statement of the facts, and await the 
 issue of a writ of venditioni exponas.^ 
 
 1 Allen V. Cole, 9 N. J. Eq. 286; Corriell v. Ham, 4 G. Greene (Iowa), 
 4B5; Coxe v. Halstead, 1 Green Ch. (N.J.) 216. See also Kichards v. 
 Holmes, 18 How. 143. 
 
 2 Enloe V. Miles, 20 Miss. 147; Cash v. Toazer, 1 Watts & S. 519. 
 
 ' Reynolds v. Nye, 1 Free. (Miss.) Ch. 462; Keightley v. Birch, 3 
 Camp. 521; United States v. Brennen, Hemp. (U. S.) 320. 
 
 431 
 
CHAP TEE XVIII. 
 
 SALES BY AGENTS AND PERSONAL EEPRESENTATIVES. 
 
 Section 268. The general principles of agency as applied to sales of 
 personal property. 
 
 269. Power to sell, when implied — Scope of power. 
 
 270. Agent cannot act for himself in tlie same transaction. 
 
 271. Brokers and factors or commission merchants distin- 
 
 guished. 
 
 272. The powers of the brolcer. 
 
 273. The powers of the factor or commission merchant. 
 
 274. Sales by pledgees. 
 
 275. Sale by master of vessel. 
 
 276. Sales by trustees. 
 
 277. Sales by executors and administrators. 
 
 278. Sales by guardians. 
 
 § 268. The general principles of agency as applied to 
 sales of personal property. — ■ It will not be necessary to 
 present here a general exposition of the law of agency, for 
 such a discussion more properly belongs to 'the subject of 
 contracts, and it may be presumed that the reader has 
 already become acquainted with the general principles of 
 agency. It will suffice in this connection to state that one 
 may sell and buy through an agent, and that a sale or pur- 
 chase by a duly authorized agent is always binding on the 
 principal. The chief question in all such cases is whether 
 the supposed agent is duly authorized. Agents for these 
 purposes may receive their authority by express grant, by 
 implication, and by ratification of an otherwise unlawful 
 act. It is not necessaiy to dwell on the first source of 
 authority; nor is it necessary to refer to the last, except 
 to say that if one undertakes to sell or buy for another, 
 without having authority to do so, the supposed principal 
 432 
 
CH. XVIII.J SALES BY AGENTS. § 269 
 
 becomes bound by the contract when he has accepted the 
 benefits of the contract, the consideration or the goods, 
 according as he is represented to be the seller or buyer. ^ 
 But it is doubtful whether the receipt of the benefits of the 
 sale will serve as a ratification of the warranty which the 
 agent gave, as well as a ratification of the unauthorized 
 sale; some of the cases holding that the ratification would 
 include the warranty,^ while other cases hold that there 
 must be an express ratification of the warranty.^ 
 
 § 269. Power to sell, when implied — Scope of power. 
 
 The power to sell may be implied from permitting the al- 
 leged agent to assume such an attitude to the owner of 
 the goods, or to the goods themselves, as to lead a reason- 
 ably prudent man to believe that the supposed agent has 
 the authority to sell; and in such a case the principal will 
 be estopped from denying his authority, as against a pur- 
 chaser who relied upon this appearance of authority.* 
 
 1 Cochrane. Chltwood, 59 111. 53; Barkley v. Rensselaer, &c., R. R. 
 Co., 71 N. Y. 205; Sartwell ». Frost, 122 Mass. 184; Jones ii. Atkinson, 
 68 Ala. 167; Herring v. Skaggs, 73 Ala. 446; McDowell v. McKenzie, 65 
 Ga. 630; Parish v. Reeve, 63 Wis. 315; Bearce ». Bowker, llSMaSs. 129. 
 See Carson v. Cummings, 69 Mo. 325; Moody v. Blake, 177 Mass. 23. 
 But the intention to ratify the unauthorized acts must be clearly shown; 
 and if the evidence is doubtful, the question must be left to the jury. 
 Abbott V. May, 50 Ala. 97; Crooker d. Appleton, 25 Me. 131; Bryant i;. 
 Moore, 26 Me. 84; EstevezB. Purdy, 66 N. Y. 446; Penn., &c., Steam Nav. 
 Co. V. Dandridge, 8 6. & J. 248; Johnson v. Craig, 21 Ark. 533; Walker 
 V. Walker, 5 Heisk. 425; Farwell v. Meyer, 35 111. 40; Burr v. Howard, 
 58 Ga. 664; Barnard v. Wheeler, 24 Me. 412; Hortons v. Townes, 6 
 Leigh, 47. 
 
 2 Cochran v. Chltwood, 59 111. 53. Compare Cooley u. Perrine, 41 N. 
 J. L. 322. See, also, Joslin v. Miller, 14 Neb. 91; New England, &c., Co. 
 V. Hendrlckson, 13 Neb. 675; Elwell v. Chamberlain, 31 N. Y. 611, where 
 it is held that a ratification ol the agent's unauthorized act involves an 
 adoption of all the instrumentalities employed by the agent to effectuate 
 the sale or other act. 
 
 s Smith V. Tracy, 36 N. Y. 79. See Cooley v. Perrine, 41 N. J. L. 322. 
 
 * Hansen v. Levy, 6 Del. 407; Rockford, &c., R. R. Co. v. Wilcox, 66 
 
 111. 417; Franklin v. Globe, &c., Ins. Co., 52 Mo. 461; Bank v. Dan- 
 
 28 433 
 
§ 269 SALES BY AGENTS. [CH. XVIII. 
 
 The scope of the power to sell will depend in many cases 
 on the character of the agency. If it be a general agency, 
 for example, the power to sell will imply the power to 
 warrant the quality of the goods.' So, also, is a general 
 agent authorized by implication to make a sale, subject to 
 the condition that the subject-matter of the sale shall be 
 tested and returned if it proved to be unsatisfactory.^ 
 And any agent, whether general or special, who sells by 
 sample, has the authority to warrant the quality of the 
 goods. ^ But the general rule is that a special agent has 
 not the implied authority to warrant,* although it has been 
 held that one authorized to sell a horse for the owner is 
 
 dridge, 13 Wheat. 64; Ketchum v. Verdell, 42 Ga. 534; Singer, &c., Co. v. 
 Holdfodt, 86 111. 455; South, &c. Ala. R. R. Co. v. Henlein, 62 Ala. 606; 
 Hull V. Jones, 69 Mo. 687; Columbia, &c.. Bridge Co. v. Geisse, 88 N. J. 
 L. 39; liovell v. Williams, 125 Mass. 439; Brooks v. Jameson, 55 Mo. 
 505; Engh v. Greenbaum, 4 Th. & C. 426; Ricei). Groffman, 56 Mo. 434; 
 Haughton v. Manner, 55 Mich. 323; Shaffer v. Sawyer, 123 Mass. 294. 
 
 ' Bradford v. Bush, 10 Ala. 386; Ezell v. Franklin, 2 Sneed, 236; 
 Hunter v. Jameson, 6 Ired. 252; Applegate v. Moffitt, 6n Ind. 104; Croom 
 V. Shaw, 1 Fla. 211; Schuchardt v. Allen, 1 Wall. 359; "Victor, &c., Co. v. 
 Rheinschild, 25 Kan. 534; Palmer v. Hatch, 46 Mo. 585; Dayton v. 
 Hooglund, 39 Ohio St. 671 ; Huguley v. Norris, 66 Ga. 666; Fay v. Rich- 
 mond, 43 Vt. 25; Deming v. Chase, 48 Vt. 382; Boothby v. Scales, 27 
 Wis. 626; Murray v. Brooks, 41 Iowa, 45; Tice v. Gallup, 2 Hun, 44G; 
 Smith V. Tracy, 36 N. Y. 82; Nelson v. Cowing, 6 Hill, 336; Bryant u. 
 Moore, 26 Me. 84; Randall v. Kehlor, 60 Me. 37; Upton v. Suffolk Co. 
 Mills, 11 Cush. 686; Dingle ». Hare, 7 C. B. (sr. s.) 145; McCormick u. 
 Kelly, 28 Minn. 135; Deering «. Thom, 29 Minn. 120; Talmage v. Bier- 
 house, 103 Ind. 270. But the general agent has no authority to give a 
 warranty where It is not customary or it is unreasonable to give one. 
 Smith V. Tracy, 36 N. Y. 79; Upton ». Suffolk Co. MUls, 11 Cush. 586; 
 Henning v. SkaggS, 73 Ala. 446. 
 
 2 McCormick v. Kelly, 28 Minn. 135; Deering ». Thom, 29 Minn. 120; 
 Boothby v. Scales, 27 Wis. 626; The Monte Allegre, 9 Wheat. 616, Pit- 
 sinowski v. Beardsley, 37 Iowa, 9; Oster ». Mlckley, 28 N. W. Rep. 
 (Minn ) 710; Murray v. Brooks, 41 Iowa, 45. 
 
 s Murray v. Smith, 4 Daly, 277; Schuchardt v. Allen, 1 Wall. 359; 
 Dayton v. Hooglund, 39 Ohio St. 671; Andrews v. Kneeland, 6 Cow. 354. 
 
 * Perrine v. Cooley, 42 N. J. L. 623; Decker v. Frederick, 47 N. J. L. 
 469; Brady v. Todd, 9 C. B. (n. s.) 692; Scott v. McGrath, 7 Barb. 53. 
 434 
 
CH. XVIII.J SALES By AGENTS. § 269 
 
 impliedly authorized to warrant its soundness, unless ex- 
 pressly forbidden.^ 
 
 If the agent has the express authority to warrant with 
 limitations, he is precluded from making a warrant without 
 these limitations, and the principal will not be bound by 
 any unauthorized warranty, although it is ordinarily implied, 
 if the purchaser knew of the express limitations on the 
 pov/er to warrant.^ And in all of these cases of implied 
 warranty, it is a warranty of quality. The agent is not 
 impliedly authorized to make any unusu.'il warranty.* 
 
 The agent who is authorized to make a sale may ordina- 
 rily rescind the sale and make a new sale, whenever and 
 under the same conditions that the principal could have 
 done so.* The power to sell does not imply the power to 
 sell on any other terms than for cash.^ And if the power 
 to sell on credit be given, the credit must be a reasonable 
 one.^ The power to sell does not include the power to pay 
 commissions,' nor the power to collect the price, unless the 
 agent has possession of the goods when he makes the sale 
 and delivers them.* 
 
 1 Denning v. Chase, 48 Vt. 382; Tice v. Gallup, 2 Hun, 44G; Skinner u. 
 Guiin, 9 Port. (Ala.) 305; Cocke ». Campbell, 13 Ala. 286; Bradford 
 V. Bush, 10 Ala. 390 ; Gaines v. McKinley, 1 Ala. 446 ; Milburn v. Belloni, 
 34 Barb. 607. 
 
 2 Wood Mowing, &c., Co. v. Crow, 30 N. W. Rep. (Iowa), 609. 
 
 3 Palmers. Hatch, 46 Mo. 685; Anderson v. Bruner, 112 Mass. 14. 
 
 4 Scott i;. Wells, 6 Watts & S. 357; Victor, &c., Co. v. Rheinschilj, 25 
 Kan. 634; Bloomer v. Denman, 12 111. 240; Saladin v. Mitchell, 45 111. 79 ; 
 Luke V. Grigg, 30 N. W. Eep. (Dak.) 170; Adrain v. Lane, 13 S. C. 183; 
 Anderson v. Coonley, 21 Wend. 279. 
 
 " Burks V. Hubbard, 69 Ala. 379; Scoby v. Wood, 59 Tenn. 66; Taylor 
 «. Starkey, 59 N. H. 142; Powell ». Henry, 27 Ala. 612; Buckwalter v. 
 Craig, 65 Mo. 71; Victor, &c., Co. v. Heller, 44 Wis. 265; Stewart v. 
 Woodward, 60 Vt. 78; Flanagan v. Alexander, 50 Mo. 51 ; Greenwood v. 
 Bums, 50 Mo. 52; Wheeler, &c., Co. v, Givan, 65 Mo. 89. 
 
 6 Brown v. Central Land Co., 42 Cal. 267. 
 
 ' Atlee V. Fink, 75 Mo. 100. 
 
 8 Clark V. Smith, 88 111. 298; Wright v. Cabot, 89 N. Y. 670; Graham 
 V. Duckwall, 8 Bush, 12; Korneman B. Monaghan, 24 Mich. 86 ; McKindly 
 
 435 
 
§ 270 SALES BY AGENTS. [CH. XVIII. 
 
 The power to sell is not implied from the power to ob- 
 tain an offer on goods. * Nor is the power to sign a bill of 
 sale implied from a power to " close a bargain." ^ Nor can 
 the power to sell one thing give by implication the power 
 to sell another.' 
 
 A special agent can exercise his power only within the 
 strict limitations of the grant of power; so that a power to 
 sell on a particular day does not imply the power to sell on 
 some later day ; * nor can he sell at a different price from 
 the one stipulated.^ 
 
 § 270. Agent cannot act for himself In the jame trans- 
 action. — While the agent is acting for his principal he is 
 not permitted to so act for himself in regard to the subject- 
 matter of the sale, as to acquire interests therein antagon- 
 istic to his principal." Thus the agent for the seller cannot 
 
 V. Dunham, 55 Wis. 515; Higgins v. Moore, 34 N. Y. 417; Chambers v. 
 Short, 79 Mo. 204 ; Greenhood v. Keaton, 9 111. App. 183 ; Bernshouse v. 
 Abbott, 45 N. J. L. 531 ; Kohn v. Washer, 64 Tex. 131 ; Butler v. Dorman, 
 68 Mo. 298; Greenleaf v. Egan, 30 Minn. 316; Janney v. Boyd, 30 Minn. 
 319; Abrahams v. Weiller, 87 111. 179; Seiple v. Irwin, 30 Pa. St. 513; 
 Crosby v. Hill, 39 Ohio St. 100 ; Higgins v. Moore, 34 N. Y. 417 ; Mann v. 
 Robinson, 19 W. Va. 49; Alexander v. Jones, 64 Iowa, 207; Yerbeyu. 
 Grigsby, 9 Leigh, 387; Hackney v. Jones, 3 Humph. 612; Goodale v. 
 Wheeler, 11 N. H. 424; Hoskins v. Johnson, 5 Sneed, 469; Higgins u. 
 Moore, 6 Bosw. 344; Johnson v. McGruder, 15 Mo. 365; Peck v. Har- 
 riott, 6 Serg. & E. 146; Harris v. Simmerman, 81 111. 413. 
 
 1 Levi V. Booth, 58 Md. 305; Dempsey v. West, 69 m. 613. 
 
 2 Duffy V. Hobson, 40 Cal. 240. 
 
 s DeCordovac. Knowles, 37 Tex. 19. 
 
 * Mathews v. Sowle, 12 Neb. 398; Bliss v. Clark, 16 Gray, 60; Reedc. 
 Baggott, 5 lU. App. 257; Proudfoot v. Wightman, 78 111. 553; Cupples v. 
 Whelan, 61 Mo. 683. 
 
 6 Holbrook v. McCarthy, 61 Cal. 216. 
 
 6 Devall V. Burbridge, i Watts & S. 305; Bennett v. Van Syckle, 4 
 Duer, 462; Smeltzer«. Lombard, 57 Iowa, 294; Gilman, &c., Co. v. Kelly, 
 77 111. 426 ; Eldridge v. Walker, 60 111. 230 ; Gillenwaters v. Miller, 49 
 Miss. 150; Grumley «. Webb, 44 Mo. 444; Peckham Iron Co. v. Harper, 
 41 Ohio St. 100; Haynie v. Johnston, 71 Ind. 394; Wilber v. Hough, 49 
 Cal. 290; Dieringer v. Meyer, 43 Wis. 311- Porter 17. Woodruff, 36 N. J. 
 436 
 
CII 
 
 XVIIl.J SALES BY AGENTS. § 270 
 
 buy the property sokl.i although it would be permissible, 
 of course, for him to buy direct from his principal, and 
 with the latter's full knowledge and assent. ^ And in any 
 case of a purchase by the seller's agent, the courts will treat 
 it as a case of constructive fraud, if the agent does not 
 make a full and complete disclosure to the principal of his 
 interest as a purchaser, and of all the facts connected with 
 his purchase.'' 
 
 Eq. 174; Cadwallader ». West, 48 Mo. 483; Greenfleld Sav. Bank B.Si- 
 mons, 133 Mass. 415; Freeman v. Hartman, 45 111. 57; Davis ». Hamlin, 
 108 III. 39; Fairman v. Bavin, 29 111. 76; Case v. Carroll, 35 N. Y. 386; 
 Hill V. Frazier, 22 Pa. St. 320. 
 
 • Eldredge v. Walker, 60 III. 230; Copelandi). Mercantile Ins. Co., 6 
 Pick. 198; Martin v. Moulton, 8 N. H. 504; Cook v. Berlin Wooleo Mills, 
 43 Wiss 433 ; Taussig v. Hart, 49 N. Y. 301 ; s. c. 58 N. Y. 425 ; Cumber- 
 land Coal Co. V. Sherman, 30 Barb. 553; Tynes v. Grimstead, 1 Tenn. 
 Ch. 608; White ». Ward, 26 Ark. 445; Ames ». Port Huron, &c., Co , 11 
 Mich. 146; Ingle v. Hartmann, 37 lovca, 274; Marsh o. Whitmore, 21 
 Wall. 178; JefCries v. Wiester, 2 Sawy. 135; Keighler v. Savage Mfg. Co., 
 12 Md. 383; Scott v. Mann, 3fi Tex. 157; Clute v. Barron, 2 Mich. 192; 
 Parker v. Vose, 45 Me. 54; Ruckman v. Beigholz, 37 N. J. L. 437; Bain v. 
 Brown, 56 N. Y. 285; Stewart v. Mather, 32 Wis. 344; Banku. Farmers' 
 L. & T. Co., 16 Wis. 609; Remick v. Butterfleld, 31 N. H. 70; Kerloot v. 
 Hyman, 52 111. 512; Adams v. Sayer, 76 Ala. 609. And the sale is none 
 the less voidable because it was made at auction and lor full value and 
 was free from every suspicion of unfairness. Scott v. Freeland, 15 Miss. 
 409; Brothers v. Brothers, 7 Ired. Eq. 150; Mason v. Martin, 4 Md. 124; 
 Newcomb v. Brooks, 16 W. Va. 32; Martin v. Martin, 12 Ired. 266; Pat- 
 tou V. Thompson, 2 Jones Eq. 285; and even where he is authorized to 
 sell for a stipulated price, and he paid that sum. Porter v. Woodruff, 36 
 N. J. Eq. 174; Ruckman v. Beigholz, 37 N. J. L. 437; Peekham Iron Co. 
 V. Harper, 41 Ohio St. 100. 
 
 2 Uhlick V. Muhlke, 61 111. 499; Ingle v. Hartman, 37 Iowa, 274; Jef- 
 fries V. Wiester, 2 Sawy. 135; Fisher's Appeal, 34 Pa. St. 29; Keighler v. 
 Savage Mfg. Co., 12 Md. 383; Michoud v. Girod, 4 How. 503; Buellc. 
 Buckingham, 16 Iowa, 184. 
 
 ' Baker «. Whiting, 3 Sumner, 475; Gaines v. Allen, 58 Mo. 537; Pro- 
 vost V. Gratz, 6 Wheat. 481; Comstock v. Ames, 1 Abb. App. 411 ; Dunne 
 V, Englislj, L. R. 18 Eq. 624; Grumley ». Webb, 44 Mo. 444; Whiter. 
 Ward, 26 Ark. 445; Ackenburgh v. McCool, 36 Ind. 473; Leake v. Suther- 
 land, 25 Ark. 219; Armstrong v. Elliott, 29 Mich. 485; Lafferty -i). Jelly, 
 22 Ind. 471; Smiths. Townsend, 109 Mass. 500; Mills v. Mills, 26 Conn. 
 213; Rubidonx v. Parks, 48 Cal. 215; Mott v. Harrington, 12 Vt. 199; 
 
 437 
 
§ 270 SALES BY AGENTS. [CH. 
 
 XVIII. 
 
 On the other hand, the buyer's agent cannot as agent buy 
 his own property for his principal.^ Nor can the buyer's 
 agent, while acting as an agent, enter into competition with 
 his principal by buying the same sort of goods for himself. 
 And all such property purchased by himself will be held by 
 liim in trust for his principal. ^ The agent cannot make any 
 profit out of the transactions in which he is engaged as the 
 agent of another beyond the compensation for his services. 
 And if he should, secretly or indirectly, make any additional 
 profit out of the transaction, it would be a fraud upon his 
 principal, and he could be compelled to turn it over to the 
 principal.^ In all these cases, the law recognizes the moral 
 
 Bartholomew u. Leach, 7 Watts, 472; Persch v. Quiggle, 57 Pa. St. 247; 
 Beeson v. Beeson, 9 Pa. St. 279; Uhllch v. Muhlke, 61 111. 499; Ingle r. 
 Hartman, 37 Iowa, 274; Stewart v. Mather, 32 Wis. 344; Collins v. Case, 
 23 Wis. 230; Cook v. Berlin Woolen Mills Co., 43 Wis. 433; Conditti;. 
 Blackwell, 22 N. J. Eq. 481 ; Taussig b. Hart, 49 N. Y. 301; Lawrence v. 
 Maxwell, 6 Lans. 469; Reed v. Warner, 5 Paige, 650; Holdridge o. Gil- 
 lespie, 2 Johns. Ch. 30 ; Nesbitt ». Lockman, 34 N. T. 167; Brown «. Post, 
 1 Hun, 304; Brock v. Barnes, 40 Barb. 521. 
 
 1 BischofEsheim D. Baltzer, 20 Fed. Rep. 890; Keighler v. Savage Mfg. 
 Co., 12 Md. 383; Beal v. McKiernan, 6 La. (o. s.) 407; Ely i>. Hanford, 
 65 111. 267; Tewksbury v. Spruance, 75 III. 187; Taussig u. Hart, 58 N. Y. 
 425 ; Conkey v. Bond, 36 N. Y. 427. 
 
 2 Barzizer v. Story, 39 Tex. 354; Fisher v. Krutz, 9 Kan. 501 ; Eshle- 
 man v. Lewis, 49 Pa. St. 410; Rose v. Hayden, 35 Kan. 106; Eingo r. 
 Binns, lOPet. 269; Wolford u. Herrington, 74Pa. St. 311; VonHustem. 
 Spengeman, 17 N. J. Eq. 185; Switzer i;.- Skiles, 8 111. 529; Firestone?;. 
 Firestone, 49 Ala. 128 ; Matthews v. Light, 32 Me. 305 ; Church v. Sterling, 
 16 Conn. 388; Reed -u. Warner, 5 Paige, 650; Welford v. Chancellor, 5 
 Gratt. 39; McMurry v. Mobley, 39 Ark. 309. 
 
 8 Cottom «. Halliday, 69 III. 176; Masons. Bauman, 62 111. 76; Collins 
 ». Case, 23 Wis. 230 ; Nat. Bank v. Seward, 106 Ind. 264 ; Ackenburg v. 
 McCool, 36 Ind. 473; Button t). Willner, 52 N. Y. 312; Bain t!. Brown, 5(i 
 N. Y. 285; Dodd v. Wakeman, 26 N. J. Eq. 484; Jefiries v. Wiester, 2 
 Sawy. 135; Smith v. Stephenson, 45 Iowa, 645; Moore v. Mandlebaum, 8 
 Mich. 433; Kerfoot ». Hyman, 52 111. 512; Campbell i). Penn. Life Ins. 
 Co., 2 Whart. 53; Morris' Appeal, 71 Pa. St. 106; Leake v. Sutherland, 
 25 Ark. 219; White v. Ward, 26 Ark. 445; Rhea v. Puryear, 26 Ark. 344 : 
 Whelan v. McCreary, 64 Ala. 319; Krutz v. Fisher, 8 Kan. 90; Kent v. 
 Priest, 86 Mo. 476; Northern Pac. R. R. Co. v. Kindred, 14 Fed. Rep. 77 ; 
 4.38 
 
CH. XVUI.J SALES BV AGENTS. § 271 
 
 inability of tlie average man to do justice to his principal 
 while dealing with himself as the opposing principal in the 
 contract of sale. It is to the interest of the seller to sell at 
 the highest price, and of the buyer to buy at the lowest 
 jirice ; and no ordinary man can act justly and with the 
 utmost success as vendor and vendee in the same transac- 
 tion, and self-interest will almost invariably compel him to 
 sacrifice the interests of his principal. 
 
 § 271. Brokers and factors or commission merchants 
 distinguished. — A broker is one whose business it is to 
 secure purchases or to make sales for others, without re- 
 ceiving possession of the subject-matter of sale, and there 
 are as many kinds of brokers as there are kinds of subject- 
 matter of sales. '^ The factor or commission merchant is 
 one who receives into his possession the goods, wares and 
 merchandise of others for the purpose of sale or exchange, 
 under the instructions of the principal or the usages of 
 trade. ^ The chief distinction between brokers and factors 
 
 Moinett v. Day, 67 Tenn. 431 ; Clark v. Anderson, 10 Bush. 99 ; Green- 
 field Sav. Bank v. Simons, 133 Mass. 415; Coussin's Appeal, 79 Pa. St. 
 220 ; Bartholomew v. Leach, 7 Watts, 472 ; Judevlne v. Hardwick, 49 Vt. 
 180; Byrd v. Hughes, 84 111. 174; Barton v. Moss, 32 111. 50; Segar v. 
 Edwards, 11 Leigh. 213; Bell v. Bell, 3 W. "Va. 183; Stoner v. Weiser, 24 
 Iowa, 434; Oliver v. Piatt, 3 How. 333; Porter v. Woodruff, 36 N. J. Eq. 
 174; Love v. Hoss, 62 Ind. 255; LafCerty v. Jelly, 22 Ind. 471. 
 
 1 Coddington v. Goddard, 16 Gray, 436; Saladin v. Mitchell, 45 111. 79; 
 Graham v. Duckwall, 8 Bush, 12; Barnard v Monnot, 16 How. Pr. 440; 
 Pott V. Turner, 6 Bing. 702; State v. Duncan, 16 Lea, 75; Bromley v. 
 Elliott, 38 N. H. 287; Creveling v. Wood, 95 Pa. St. 152; Portland v. 
 O'Neill, 1 Oreg. 218; Keys v. Johnson, 68 Pa. St. 42; White v. Brownell, 
 S Abb. Pr. (n. s.) 318; Beal v. McKieman, 6 La. (o. s.) 407; Hinckley v. 
 Arey, 27 Me. 362. 
 
 "■ Baring v. Corsie, 2 B. & Aid. 143; Graham v. Duckwall, 8 Bush. 12; 
 Perkins v. State, 60 Ala. 154; Edgerton v. Michels, 66; Burton v. Good- 
 speed, 69 III. 237; Denney v. Wright, 60 Wis. 733; Bromley v. Elliott, 38 
 N. H. 287; Cotton v. Hiller, 52 Miss. 7; Lavfrence v. Stonington Bank, 6 
 Conn. 521; Taylor v. Wells, 3 Watts, G5; Winne v. Hammond, 37 111. 99; 
 Slack V. Tucker, 23 Wall. 321; Ilopkirk v. Bell, 3 Cranch,454; Duguid v. 
 
 439 
 
§ 272 SALES BY AGENTS. [CH. XVIII. 
 
 or commission merchants is that the broker makes his sales 
 without receiving the possession of the goods, while the 
 factor or commission merchant is pjiven the posset^sion of 
 the goods to be sold, and is consequently charged with the 
 care of the goods until a sale is effected. The broker is 
 purely a"n agent to sell, while the factor is a bailee to sell.^ 
 The names do not signify much, in determining the char- 
 acter of the agent ; and, although an agent may call himself 
 a broker, he is a factor or commission merchant, if he has 
 possession of the goods which he is to sell.'^ 
 
 § 272. The powers of the broker. — When one employs 
 a broker to buy or sell for him, he impliedly authorizes 
 him to make whatever contract is Justified by well-estab- 
 lished usage in the market in which the broker is carrying 
 on his business, whether the usage is known to the principal 
 or not.' And, unless restricted by express instructions or 
 
 Edwards, 50 Barb. 288; Ladd v. Arkell, 37 N. Y. Sup. Ct. 35; Higgins v. 
 Moore, 34 N. Y. 418; Ward v. Brandt, II Martin (La.), 311; Blood u. 
 Palmer, 11 Me. 414. A common carrier may be a factor, wliere he is not 
 only intrusted with the possession of goods for the purpose of trans- 
 portation, but also for the purpose of sale in the port of destination. 
 He becomes a factor as soon as the transit comes to an end, and he un- 
 dertakes the duty of selling the goods. Harrington v. McShave, 2 Watts, 
 443; Taylor v. "Wells, 3 Watts, 65; Williams v. Nichols, 13 Wend. 58; 
 Emery v. Hersey, 4 Greenl. 407; Stone v. Waitt, 31 Me. 409; Kemp v. 
 Coughtry, 11 Johns. 107. 
 
 1 Baring v. Corsie, 2 B. & Aid. 143; Slack v. Tucker, 23 Wall. 321; 
 Higgins V. Moore, 34 N. Y. 417; Saladin v. Mitchell, 45 111. 79; Stolleu- 
 werck v. Thacher, 115 Mass. 224; Fisher v. Brown, 104 Mass. 259; 
 Markham a. Jandon, 41 N. Y. 235; Graham v. Duckwall, 8 Bush. 12; 
 Barry v. Boninger, 46 Md. 69; James' Appeal, 89 Pa. St. 54; Bernshouse 
 V. Abbott, 16 Vroom, 531 ; Eutenberg v. Main, 47 Cal. 213. 
 
 2 Henry v. Philadelphia Warehouse Co., 81 Pa. St. 76 ; Wood v. Hayes, 
 15 Gray, 375; Morton v. Scull, 23 Ark.. 289; Morey v. Webb. 65 Barb. 22; 
 Talmage v. Kevins, 2 Sweeney, 38 ; McNeil v. Tenth Nat. Bank, 46 N. Y. 
 325; Andrews «. Kneeland, 6 Cow. 354 ; Jeffrey ».Bigelow, 13 Wend. 518; 
 Rutenberg v. Main, 47 Cal. 213. 
 
 ' Robinson v. Mollett, L. R. 7 H. L. 836; Young v. Cole, 3 Blng. N. 
 C. 724; Bo wring v. Shepard, L. R. 6 Q. B. 309; Scutance v. Hawley, 13 
 440 
 
CH. XVIII. J SALES BY AGENTS. ' § 272 
 
 a well-established usage, the broker has the power to make 
 use of all the means necessary lo make the sale in an ad- 
 vantageous manner. 1 But usage never controls, where 
 there are express restrictions, except as to third persons 
 who deal with the broker without knowledge of the express 
 restrictions.^ But usage will never authorize a'broker to 
 bind his principal in the doing of an unlawful or an immoral 
 act, ^ such as dealing in options.* 
 
 The broker ordinarily has power to sell by sample, and 
 to warrant correspondence of the bulk with sample.^ He 
 has not the power to sell on credit, unless he can show a 
 usage or express authority.* He is also not authorized to 
 receive payment for the goods. And if the party buying 
 
 C. B. (n. s.) 458; Eosenstock v. Tormey, 32 Md. 169; Fame Ins. Co. v. 
 Mann, 4 111. App. 485; Walker v. Walker, 5 Heisk, 425; White v. Fuller, 
 67 Barb. 267; Gilchrist ». Brooklyn Mfg. Co., 66 Barb. 390; Wanless v. 
 McCandless, 38 Iowa, 20 ; Butler v. Dorman, 68 Mo. 298 ; Day v. Holmes, 
 103 Mass. 306; Gallup v. Lederer, 1 Hun, 282; Baker v. Drake, 66 N. Y. 
 618; Higgins v. Moore, 34 N. Y. 417; Bailey i). Bensley, 87 111. 566; Rich 
 V. Boyce, 39 Md. 314; Sumner's. Stewart, 69 Pa. St. 321. 
 
 I Wilkinson v. Churchill, 114 Mass. 184; East India Co. v. Hensley, 
 lEsp. 111. 
 
 ' Scott V. Rogers, 31 N. Y. 676; Pierce v. Thomas, 4 E. D. Smith, 354. 
 
 3 Rumsey v. Berry, 65 Me. 574; YerkesiJ. Salomon, 11 Hun, 473; Lyon 
 V. Cnlbertson, 83 111. 33; Fosters. State, 45 Ark. 361; Com. v. Cooper, 
 130 Mass. 285; Ruchizky v. DeHaveu, 97 Pa. St. 202; Evans v. Wain, 71 
 Pa. St. 69; Trist «. Child, 21Wan. 441; Steers 17. Lashley, 6 T. R. 61 ; 
 Brown V. Turner, 7 T. R. 631; Irwin v. Williar, llOU. S.499; Kirk- 
 patrlck V. Bonsall, 72 Pa. St. 155; Fareira v. Gabell, 89 Pa. St. 89; 
 Farnsworth v. Hemmer, 1 Allen, 494; Pointers. Smith, 7 Heisk. 137; 
 Gregory v. Wilson, 36 N. J. L. 315; Pearce v. Foote, 113 111. 228; Gregory 
 V. Wendell, 39 Mich. 337; s. c. 40 Mich. 432. 
 
 * Stewarts. Garrett, 4 Atl. Rep. (Md.) 899. See Kirkpatrickc. Adams, 
 20 Fed. Rep. 287; Bennett v. Covington, 22 Fed. Rep. 816. 
 
 6 The Monte AUegre, 9 Wheat. 616; Boorraan u. Jenkins, 12 Wend. 
 566; Waring v. Mason, 18 Wend. 425; Andrews v. Kneeland, 6 Cow. 534. 
 See also Forcheimer v. Stewart, 65 Iowa, 694. But see Dodd v. Farlow, 
 11 Allen, 426. 
 
 « White V. Fuller, 67 Barb. 267; Wiltshire v. Sims, 1 Camp. 258; 
 Boorman v. Brown, 3 Q. B. 611; Henderson v. Barnewell, 1 Y. & Jerv. 
 387. 
 
 441 
 
§ 272 SALES BY AGENTS. [CH. XVIII. 
 
 from the broter pays him the price, he does so at his 
 peril.^ 
 
 The broker, who is authorized to sell, has no implied 
 authority to rescind the sale ; ^ nor has the broker, who is 
 empowered to buy, the implied power to sell again.* 
 Without express authority, brokers cannot appoint sub- 
 agents, and turn the business over to them.* And like all 
 other agents he can neither buy from nor sell to himself.' 
 
 Until the sale is completed, the broker is the agent of the 
 party who employed him, and for whom he acted; but 
 when the sale is consummated, he becomes the agent of 
 both seller and buyer, in order to enable him to make a 
 memorandum of the sale, which will satisfy the require- 
 ments of the statute of frauds, and hold both parties liable 
 
 1 Baring v. Corrie, 2 B. & Aid. 137; Graham v. Duckwall, 8 Bush, 12; 
 Gallup «. Leden-r, 3 Th. &C. 710; Bassett «. Lederer, 3 Th. & C. 671; 
 Doubleday o. Kress, 50 N. Y. 410; Saladin v. Mitchell, 45 111. 79 ; Selple 
 V. Irwin, 30 Pa. St. 513; Kymer c. Suwerkropp, 1 Camp. 109; Morris v. 
 Ruddy, 20 N. J. Eq. 236; Peck v. Harriott, 6 Serg. & R. 149; Bliss v. 
 Bliss, 7 Bosw. 339; Higgins v. Moore, 34 N. Y. 417; Eutenberg v. Main, 
 47 Cal. 213; Campbell v. Harsell, 1 Stark. 233. 
 
 2 Saladin v. Mitchell, 45 111. 79. 
 
 3 McNeilly v. Cont. Ins. Co., 66 N. Y. 23; Roach v. Turk, 9 Heisk. 708. 
 « Cochran v. Irlam, 2 M. & S. 301; Locke's Appeal, 72 Pa. St. 491; 
 
 Henderson v. Barnewell, 1 Y. & Jerv. 387. But this proliibition does not 
 apply to the appointment of clerks and other ralnisteiial agents, where 
 thfy are not given the power to act^iadependently or in their own dis- 
 cretion. Williams i;. Woods, 16 Md. 220; Elwell v. Chamberlain, 2 
 Bosw. 230; Commercial Bank v. Norton, 1 Hill, 501. 
 
 6 Taussig V. Hart, 58 N. Y. 423; Tewksbury v. Spruance, 76 111. 187; 
 Stewart v. Mather, 32 Wis. 344; Sharman v. Brandt, L. R. 6 Q. B. 720; 
 Mollett V. Robinson, L. R. 6 C. P. 655; Ruckman v. Bergholz, 38 N. J. L. 
 531; Hughes v. Washington, 72 111. 84; Conkey «. Bond, 34 Barb. 276; 
 RodlifEe ». Dallinger, 141 Mass. 1 ; Martin v. Moulton, 8 N. H. 504. The 
 broker's clerk is under the same prohibition. Gardner©. Ogden, 22 N. 
 Y. 327. But this restriction does not apply where the broker's sale or 
 purchase is made with the full knowledge and consent of the principal. 
 Edwards ». Goldsmith, 16 Pa. St. 43; Keys c. Johason, 68 Pa. St. 42; 
 Reed v. Reed, 82 Pa. St. 420; Stewarts. Mather, 32 Wis. 344; Grants. 
 Hardy, 33 Wis. 668. But see Tower v. O'Neill, 66 Pa. St. 332. 
 442 
 
CH. XVlIl.j SALES BY AGENTS. § 273 
 
 on the contract. 1 But for no other purpose could the 
 broker act for both parties, since their interests are antag- 
 onistic.^ 
 
 § 273. The powers of the factor or commission mer- 
 chant. — The power of the factor or commission merchant, 
 liise that of the broker, depends for its scope chiefly upon 
 the usage of the business world ; and where a particular 
 power is sanctioned by usage, he can bind his principal in 
 the exercise of it, although the principal may be ignorant 
 of the usage.* The factor has the power to do whatever 
 is usual and necessary to effect the sale.* 
 
 Like the broker, if the usage of trade justifies it, the 
 factor or commission merchant may warrant the quality of 
 the goods ^ and sell on credit ; and if he exercises reason- 
 
 ' Henderson v. Barnewell, 1 Y. & Jerv. 387; Fairbrother v. Simmons, 
 S B. & Aid. 333; Hinckley v. Arey, 27 Me. 362; Coddington «. Goddard, 
 16 Gray, 436; Everheart v. Searle, 71 Pa. St. 256; Grants. Hardy, 33 Wis. 
 668; Cassard o. Hiuman, 6 Bosw. 8; Pagsley v. Murray, 4 E. D. Smitli, 
 245; Woods v. Rocohi, 32 La. Ann. 210; Schlesiuger v. Texas, &c., R. R. 
 Co., 13 Mo. App. 471; Evans v. Wain, 71 Pa. St. 256; Raisin v. Clark, 41 
 Md. 158; Greaves v. Legg, 2 Hur. & N. 210; Wright v. Danah, 2 Camp. 
 203. See ante, § 79, as to bought and sold notes. 
 
 2 Mejer u. Hanchett, 39 Wis. 419; Stainback v. Read, U Gratt. 281; 
 Watkins v. Cousall, 1 E. D. Smith, 65; Dunlop v. Richards, 2 E. D. 
 Smith, 181: Pugsley v. Murray, 4 E. D. Smith, 245. 
 
 2 Johnson u. Usborne, H Ad. & El. 549; Coles v. Bristowe, 17 W. R. 
 105; Cotton v. Hiller, 52 Miss. 7; Phillips v. Moir, 69 111. 155; KaufEman 
 ■». Beasley, 54 Tex. 563; Dwight i;. Whitney, 15 Pick. 179; Prank ■«. Jen- 
 kins, 22 Ohio St. 597; Roosevelt v. Doherty, 129 Mass. 303; Goodenow v. 
 Tyler, 7 Mass. 36; Bailey v. Bensley, 87 111. 556 ; Lyon v. Culbertson, 83 
 111. 33; Hatcher ». Comer, 73 Ga. 418; Randall v. Kehlor, 60 Me. 87; U. 
 S. Life Ins. Co. v. Advance Co., 80 111. 549; Jackson Ins. Co. o. Partee, 9 
 Heisk. 296; Maxted v. Paine, L. R. 4 Ex. 81. 
 
 ' Bayliffe v. Butterworth, 1 Exch. 425; Randall v. Kehlor, 60 Me. 37; 
 Smith V. Tracy, 36 N. Y. 79; Van Alen v. Vanderpool, 6 Johns. 70; Pal- 
 mer V. Hatch, 46 Mo. 585; Andrews v. Kneeland, 6 Cow. 354; Upton v. 
 Suffolk Co. Mills, 11 Cush. 586; Schuchardt v. Aliens, 1 Wall. 359. 
 
 5 Schuchardt v. Allen, 1 Wall. 359; Bradford v. Bush, 10 Ala. 386; 
 Palmer a. Hatch, 46 Mo. 585; Randall v. Kehlor, 60 Me. 37; Smith?;. 
 
 443 
 
§ 273 SALES BY AGENTS. [CH. XVIII. 
 
 able care in tlie bestowal of credit, he will not be liable to 
 the principal in case of loss, unless he is selling under a del 
 credere commission.* By a del credere commission is meant 
 that the factor or commission merchant guarantees the 
 credits he gives, and receives therefor an additional per- 
 centage of commission.^ 
 
 Inasmuch as he has the possession of the goods, the fac- 
 tor is authorized to make sales of them in his own name, 
 the rights of the principal being in no wise affected there- 
 by.'' And whether the sale is made in the name of the 
 principal or of the factor, the latter not only has the right 
 to receive payment of the price, but he also has the power 
 to sue for it in his own name, the principal having the 
 same right in either case.* But if the sale were made in 
 
 Tracy, 36 N. Y. 79; Nelson v. Cowing, 6 Hill, 336; Upton v. Suffolk Co. 
 Mills, 11 Cush. 586; Woodford v. McClenahan, 9 111. 85; Hunter t). Jame- 
 son, 6 Ired. L. 252 ; Skinner v. Gunn, 9 Port. (Ala.) 305. 
 
 * Marshall v. Williams, 2 Biss. 255; Forrestier v. Boardman, I Story, 
 43; Burrill v. Phillips, 1 Gall. 360; Ernest v. StoUer, 5 Dill. 438; May v. 
 Mitchell, 5 Humph. 366; Laussatt v. Lippincott, 6 Serg. & R. 386; Byrne 
 V. Schwing, 6 B. Mon. 199; Clark v. Van Northwick, 1 Pick. 343; Roose- 
 velt V. Doherty, 129 Mass. 301; Hapgood v. B'atcheller, 4 Met. 576; 
 GoodenowB. Tyler, 7 Mass. 36; Pinckhara v. Crocker, 77 Me. 563; Gree- 
 ley V. Bartlett, 1 Greenl. 172; James 17. McCredie, I Bay, 294; Daylight 
 Burner v. Odlin, 51 N. H. 56; McConnico v. Curzer, 2 Call, 358; Winne 
 V. Hammond, 37 111. 99; Parker w. Fergus, 43111. 437; Burton v. Good- 
 speed, 69 111. 237; Foster v. Waller, 75 111. 464; Chandler v. Hoyle, 58 111. 
 46 ; Rich v. Monroe, 14 Barb. 602 ; Lelaud v. Douglass, I Wend. 490 ; 
 Robertson v. Livingston, 5 Cow. 473; Van Alen v. Vanderpool, 6 Johns. 
 69 ; Leverick v. Meigs, 1 Cow. 645. 
 
 2 Couturier v. Hastle, 16 Eng. L. & Eq. 662; 5 Exch. 40; Swan v. 
 Nesmith, 7 Pick. 220; Bradley t;. Richardson, 23 Vt. 720; Cartwright k. 
 Green, 47 Barb. 9; Sherwood u. Stone, 14 N. Y. 268; Thompson ». Perkins, 
 3 Mas. (U. S.) 232; Lewis v. Brehme, 33 Md. 412; Wolf v. Koppell, 5 
 Hill, 458; Leverick i). Meigs, 1 Cow. 645; Dalton ». Goddard, 104 Mass. 
 497; Grover v. Dubois, 1 T. R. 112. 
 
 3 Blood V. Palmer, 11 Me. 414; Graham u. Duckwall, 8 Bush, 12; 
 Slack V. Tucker, 23 Wall. 321. 
 
 * Girard v. Taggard, 6 Serg. & R. 19; Earle v. De Witt, 6 Allen, 520; 
 Lernedt). Johns, 9 Allen, 419; Tolaod v. Murray, 18 Johns. 24; Ladd v. 
 Arkell, 37 N. Y. Sup. Ct. 36 ; White v. Chouteau, 10 Barb. 202 ; Hogau 
 
 444 
 
CH. XVUI.] SALES BY AGENTS. § 273 
 
 the factor's name, the purchaser has a right to treat the 
 factor as the principal, and he does not lose the equities 
 and defenses, which he could enforce against the factor, by 
 the suit being brought in the name of the real principal.' 
 
 It is hardly necessary to add, that payment of the price 
 to either the principal or his factor precludes any recovery 
 by the other party. ^ 
 
 The factor has no implied power either to barter or to 
 pledge the goods entrusted to his care, and the pledgee, in 
 the absence of a statute to the contrary,^ acquires no title 
 to the goods as against the principal.* 
 
 V. Shorb, 24 Wend. 458; Burton v. Goodspeed, 69 111. 237; Sadler v. 
 Leigh, i Camp. 194; Drlnkwater «. Goodwin, Cowp. 251; Leach v. Bush, 
 57 Ala. 145; Graham v. Duckwall, 8 Bush, 12; Taintor v. Prendergast, 3 
 Hill, 72; Leverick u. Meigs, 1 Cow. 645; Grinnell v. Schmidt, 2 Sandf. 
 700; Eoosevelti!. Doherty, 129 Mass. 301; Barry v. Paige, 10 Gray, 398; 
 Ilsley V. Merriara, 7 Oush. 242. 
 
 1 Roosevelt v. Doherty, 129 Mass. 301; Barry v. Page, 10 Gray, 398; 
 Parkers. Donaldson, 2 Watts & S. 9; Gardners. Alleu,6 Ala. 187; Locke 
 V. Lewis, 124 Mass. 1, 7; Huntington u. Knox, 7 Cush. 371. But it is 
 different where the purchaser knew or had reason to believe, that the 
 party with whom he dea't was acting as a commission merchant. Miller 
 V. Lea, 35 Md. 396; Stewart v. Woodward, 50 Vt. 78; Ladd?;. Arkell, 40 
 N. Y. Sup. Ct. 150. Nor can he claim the right of setoff against real 
 principals if he had no reasonable grounds for the Impression that the 
 factor was the principal. Brown v. Morris, 83 N. C. 251. 
 
 2 Golden B. Levy, 1 Car. L. Repos. 527; Kelley v. Munson, 7 Mass. 
 319. 
 
 2 See post, chapter on Bona Fide Purchasers. 
 
 * Gray v. Agnew, 95 111. 315: Bowie v. Napier, I McCord, 1; Victor 
 S. M. Co. V. Heller, 44 Wis. 265; Kau£Emim v. Beasley, 54 Tex. 56:!; 
 R;>driguez v. Heffermau, 5 Johns. Ch. 417; Urquhart v. Mclver, 4 Johns. 
 103; Odiorne v. Maxey, 13 Mass. 178; Nowell v. Pratt, 5 Cush. Ill; 
 Florence Sew. M. Co. v. Warford, 1 Sweeney, 433; Laussatt v. Lippin- 
 cott, 6 Serg. & R. 391; Hayes v. Campbell, 55 Cal. 421; Horr». Barker, 
 llCaL393; Chicago Taylor, &c., Co. v. Lowell, 60 Cal. 454; Voss i). 
 Robertson, 46 Ala. 483; Steiger v. Third Nat. Bank, 2 McCrary, 494; 
 Ke:iey v. Smith, 1 Blatchf. 290; Warner v. Martin, 11 How. 209; Evans 
 u. Potter, 2 Gall. 12; Mechanics', &c., Ins. Co. v. Kiger, 103 U. S. 352; 
 Merchants' Nat. Bank ». Trenholm, 12 Heisk. 520; Bott v. McCoy, 20 
 Ala. 578; Hutchinson u. Bours, 6 Cal. 383; Wright v. Soloraoa, 19 Cal. 
 64; Newbold v. Wright, 4 Rawle, 195 1 Mackey v. Dillinger, 73 Pa. St. 85; 
 
 445 
 
§ 274 SALKS BY AGENTS. [cil. XVIII. 
 
 § 274. Sales by pledgees A pledge is a transfer of 
 
 personal property to secure the payment of a debt, and as 
 an incident of the pledge, the pledgee has the power, with- 
 out any legal process, to sell the goods on default in the 
 payment of the debt.^ But in order that he may pass to 
 his purchaser a better title than that of assignee of the 
 pledge, the pledgor must be given due notice of the time 
 and place of sale. In the absence of statutory regulations, 
 the sufficiency of the notice is determined on general prin- 
 ciples.* But actual knowledge of these things on the part 
 of the pledgor, it matters not from what source the infor- 
 mation may have come, will dispense with the requirement 
 of notice from the pledgee.' It is doubtful whether notice 
 to the pledgor by publication is sufficient,* and it would be 
 advisable, if not always necessary, to make the notice as 
 personal in character as the circumstances will allow; and 
 if personal notice cannot be given, by reason of the absence 
 of the pledgor in parts unknown, it is better to foreclose 
 the pledgor's equity of redemption by a bill in chancery.^ 
 
 Michigan State Bank v. Gardner, 15 Mass. 362; Kinder ». Shaw, 2 Mass- 
 398; Boiiito v. Mosquera, 2 Bo-!W. iOl; Walth er v. Wetmore, 1 E. 1). 
 Smith, 7; Kennedy u. Strong, 14 Johns. 138; McCreary o. Gaines, 53 Tex. 
 4-85; First Nat. Banli v. Nelson, 38 Ga. 391 ; "Wheeler, &c., Mfg. Co. v 
 Givan, 65 Mo. 89. 
 
 1 Tucker v. Wilson, 1 P. tfms. 261 ; Martin v. Read, 11 C. B. (n. s.) 
 730; Pigoti;. Cubley, 15 C. B. (n. s.) 701; Johnston v. Stear, 15 C. B. 
 (>J. s.) 330; Halliday v. Holgate, L. R. 3 Ex. 299; Lockwoo I v. Ewer, 9- 
 atod. 278; Stearns v. Marsh, 4 Denio, 227; Wheeler v. Newbold, 16 N. 
 Y. 392; Washburn v. Pond, 2 Allen, 474; 
 
 2 Bryan v. Baldwin, 63 N. Y. 233; Cushman v. Hayes, 46 111. 145; 
 Stevens u. Hurlbut Bank, 31 Conn. 146; Washburn v. Pond, 2 Allen, 474; 
 Gay V. Moss, 34 Cal. 125; Goldsmith ». Church Trustees, 6 Rep. 435; 
 Millikin v. Dehon, 10 Bosw. 325; Stearns v. March, 4 Denio, 227; 
 Conyngham's Appeal, 57 Pa. St. 474; Davis v. Funk, 39 Pa. St. 243. 
 
 3 Alexandria R. R. Co. ■«. Burke, 22 Gratt. 254. 
 
 ^ Contra, Potter v. Thompson, 10 B. I. 1; pro., Stokes v. Frazier, 72 
 111. 428. See City Bank of Racine v. Babcock, 1 Holmes C. C. 180. 
 
 8 See Stearns v. Marsh, 4 Denio, 227 ; Pigot v. Cubley, 15 C. B. (n. s.). 
 701 ; Donohoe v. Gamble, 38 Cal. 340. 
 446 
 
CII. XVni.] SALES BY AGENTS. § 274 
 
 The pledgee cannot make an absolute sale until there has 
 been a default by the pledgor. Hence if a demand of pay- 
 ment is required before the payor can be guilty of default, 
 demand of payment must iu those cases precede the adver- 
 tisement and sale of the pledge.' But, generally, demand 
 is not necessary.^ 
 
 The pledgee must sell at public auction,^ and in a fair and 
 impartial manner.* But mere inadequacy in the price will 
 not affect the character of the sale,^ and certainly not the 
 title of a bona fide purcha-er.* 
 
 Like all other agents for sale, the pledgee cannot buy at 
 his own sale, either directly or indirectly through his agent. 
 This sale may be avoided or enforced by the pledgor, at 
 his option.' 
 
 Sales by pledgees are now regulated more or less by stat- 
 utes, particularly sales by pawnbrokers ; and since these 
 statutory regulations are not uniform in character, the 
 reader must be referred to the statutes themselves for 
 further information. 
 
 1 Pigot V. Cubley, 15 C. B. (N. s.) 701 ; Wadsworth v. Thompson, 8 
 111. 423; Stokes v. Frazier, 72 111. 428; Wilson v. Little, 2 Comst. 443. 
 
 2 Martin v. Keed, 11 C. B. (n. s.) 730. 
 
 3 Wheeler v. Newbould, 16 N. Y. 392; Washburn v. Pond, 2 Allen, 
 474; Strong v. Nat. Bank Assn., 45 N. Y. 718. A sale at brokers' board 
 is private and hence invalid as a foreclosure of the pledgor's rights. 
 Dykers v. Allen, 7 Hill, 497; Wheeler v. Newbould, supra; Markham i;. 
 Jandon, 41 N. Y. 235. But see Md. Fire Ins. Co. ». Dalrymple, 25 Md. 
 242 ; Child v. Hugg, 41 Cal. 519. 
 
 * Stevens v. Hurlbut Bank, 31 Conn. 146; Alnsworth v. Bowen, 9 Wis. 
 318. 
 
 * Aiusworth v. Bowen, 9 Wis. 348. 
 
 6 Lewis V. Mott, 36 N. Y. 395; Newport Bridge Co. v. Douglass, 12 
 Bush, 673; Potter v. Thompson, 10 R. L 1 ; Stokes v. Frazier, 72 U1.428. 
 
 ' Pigot V. Cubley, 15 C. B. (n. s.) 702; Ogdcn v. Lathrop, 65 N. Y. 158; 
 Bryan v. Baldwin, 52 N. Y. 233; Stokes ». Frazier, 72 111. 428; Bait. H. 
 Ins. Co. V. Dalrymple, 25 Md. 269; Hestonville R. R. Co. v. Shields, 2 
 Brewst. 257; Bank of Old Dominion v. Dubuque R. R. Co., 8 Iowa, 277; 
 Ainsworth ii. Bowen, 9 Wis. 348; Chicago Artesian Well Co. v. Corey, CO 
 111. 73; Middlesex Bank v. Minot, 4 Met. 25; Hope v. Lawrence, 1 Hun, 
 317; Hamilton v. State Bank, 122 Iowa, 306. 
 
 447 
 
§ 277 SALES BY AGENTS. [CH. XVIII. 
 
 § 275. Sales by master of vessel. — The master of a 
 vessel has the power, when in distress and away from the 
 home port, to sell the ship and cargo, and so far as the 
 necessities of the case require the sale, the purchaser will 
 get a good title against the owners.^ But inasmuch as 
 admiralty and shipping constitute a distinct and separate 
 branch of our jurisprudence, it is not considered necessary 
 or advisable to enter into a full discussion of this subject. 
 
 § 276. Sales by trustees. — The subject of sales by 
 trustees depends to such an extent on the general doctrine 
 of trusts for elucidation that it is not considered to be 
 possible to present it intelligently without an extensive dis- 
 cussion of the law of trusts. It is better to leave the discus- 
 sion to writers upon that special topic, and to be content 
 in the present instance with the statement that the trustee, 
 in exercising the power of sale, must exercise reasonable 
 discretion, and must act always for the best interests of his 
 cestui que trusts. 
 
 § 277. Sales by executors and administrators. — The 
 
 executor or administrator, as the personal representative of 
 the deceased owner, and as a trustee for the creditors of 
 the estate and the next of kin, acquires by the common law 
 absolute control over and unrestricted power to sell all 
 kinds of personal property of the deceased owner. ^ This 
 
 ^ The Gratitudine, 3 Bob. Adm. 259; Vlierboom v. Chapman, 13 M. & 
 W. 239; Carman v. Meaburn, 1 Bing. 243; Cammell v. Sewell, 3 H. & N. 
 617; Australasian, &c., Co. v. Morse, L. R. i P. C. 222; Atlantic Ins. Co. 
 V. Huth, 16 Ch. D. 474, 481 C. A.; The Amelie, 6 Wall. 26 ; The Ship 
 Packet, 3 Masoli, 255; The Sarah Ann, 2 Sumn. 215; Howland ». India 
 Ins. Co., 131 Mass. 255; Gates v. Thompson, 57 Me. 442; Jordan ». 
 Warren Ins. Co., 1 Story, 342; Meyers v. Baymore, 10 Pa. St. 114; Pope 
 V. Nickerson, 3 Story, 466; Post ?>. Jones, 19 How. 150; Ocatos v. Burns, 
 3 Ex. D. 289, C. A.; Tronson v. Dent, 8 Moo. P. C. 419; Underwood v. 
 Robertson, 4 Camp. 138; Freeman v. East India Company, 5 B. & A. 621. 
 
 2 Hertell v. Bogert, 9 Paige, 67; Field v. Schieffelin, 7 John. Ch. 155; 
 Hunter v. Lawrence, 11 Gratt. Ill; Mead v. Byington, 10 Vt. 116; Clark 
 448 
 
CH. XVIII.J SALES BY AGENTS. § 277 
 
 power of disposition, in order to perform his duties to the 
 creditors, extends even to chattels which have been specif- 
 ically bequeathed.^ The personal representative has this 
 power at common law ; but in many of the States, authority 
 is given to the courts to assume control of the sales of exec- 
 utors and administrators, and when such statutes prevail, 
 these officers are obliged to obey the instructions of the 
 court as to the form and manner of sale ; and in the absence 
 of judicial orders, they are required by the statute to sell at 
 public auction.^ It is thus held, under the Wisconsin statute, 
 that the executor or administrator cannot without an order 
 of the court sell for a price below the appraised value.' 
 The provisions of the statutes, of course, vary in detail, 
 and it will be impossible to present here a full account of 
 them, the reader being expected to look to the statutes of 
 his own state for guidance.* The general power of the 
 
 V. Blackington, 110 Mass. 369, 375; Harnrick v. Craven, 39 Ind. 241; 
 Bradshaw v. Simpson, 6 Ired. Eq. 243; Gray b. Armistead, 6 Irod, Eq. 
 74; Nelson v. Stolleawerck, 60 Ala. 140; Wharton v. Moragne, 62 Ala. 
 201; Mead v. Ouray, 3 Atk. 239; McLeod v. Drummond, 17 Ves. 154; 
 Shaw V. Spencer, 100 Mass. 382; Smith v. Ayer, 101 U. S. 320; Goodwin 
 V. Am. Bank, 48 Conn. 550; Wood's Appeal, 92 Pa. St. 379; Carter v. 
 Manufacturer's Bank, 71 Me. 448; Vane v. Rigdon, L. R. 5Ch. 663; Scott 
 V. Tyler, 2 Dick. 720; Marshall County v. Hanna, 57 Iowa, 372; Hough v. 
 Bailey, 32 Conn. 288; Makepiece v. Moore, 10 111. 474; Tyrrell v. Morris, 
 1 Dev. & B. Eq. 559 ; Yerga v. Jones, 16 How. 37 ; Bond v. Ziegler, Eaynor 
 V. Pearsall, 3 John. Ch. 578. 
 
 1 Ewer V. Corbet, 2 P. Wms. 149; Burting v. Stonard, 2 P. Wms. 160; 
 Garnett v. Macon, 6 Call, 308; McMuUen v. O'Reilly, 15 Ir. Ch. 251; 
 Hertell v. Bogert, 9 Paige, 52. 
 
 2 Such statutes are to be found in New York, Massachusetts, 
 Wisconsin, Minnesota and other States. See Fambo v. Gnatt, 12 Ala. 
 265; Joslin v. Gaughlin, 26 Miss. 134; Bond v. Ziegler, 1 Kelly, 324; Mc- 
 Arthur v. Caine, 32 Ala. 75; Gaines v. De la Croix, 6 Wall. 719; In re 
 Sanderson (Cal.), 13Pac. Rep. 497; Butler «. Butler, 10 E. I. 501; Weyer 
 V. Second Nat. Bank, 57 Ind. 198; Bogan v. Camp, 30 Ala. 276; Saxon v. 
 Barksdale, 4 Desaus. 526; Bainesv. McGee, 1 Smed. & M. 208. 
 
 s Mouteith v. Rahn, 14 Wis. 210. 
 
 * See French v. Currier, 47 N. H. 88 ; Tell City Furniture Co. v. Stileg, 
 60 Miss. 849; McCook v. Pond, 72 Ga. 150; Wells v. Wells, 30 La. An., 
 
 29 449 
 
^ 277 SALES BY AGENIS. [CH. XVIII. 
 
 executor, where it is restricted by statute, may be enlarged 
 by an express power of sale, given in the will.' 
 
 In the absence of fraud or collusion, and where the sale 
 is made in good faith and for a valuable and substantial 
 consideration, the purchaser gets a good title, which cannot 
 be attacked by any one interested in the property as next- 
 of-kin, creditors or legatee.^ And this seems to be the case, 
 even where the sale is made by the personal representative 
 in violation of judicial, statutory or testamentary instruc- 
 tions.^ Nor is the purchaser obliged to see that the per- 
 sonal representative applies the proceeds of sale to the 
 purpose for which he was authorized to make the sale,* ex- 
 
 pt. II, 935; Hall v. Chapman, 35 Ala. 553; Crawford v. Blackburn, 19 Md. 
 40; Halleck©. Moss, 17Cal. 339; Butler ii. Butler, 10 R. I. 501; Beene v. 
 Collenberger, 38 Ala. 647; Succession of Michel, 20 La. An. 233; Jacob's 
 Appeal, 23 Pa. St. 477; Martin v. McCounell, 29 Ga. 205; Robbins v. Wol- 
 cott, 27 Conn. 234. 
 
 ' Durham's Estate, 49 Cal. 491 ; Dugan v. HoUins, 11 Md. 41 ; Smith v. 
 Taylor, 21 111. 296. It is doubtful whether a testator may by a provision 
 in the will, restrain the executor's power of sale so as to prevent the 
 passing of title to purchaser. See, apparently to the contrary, Evans v. 
 Evans' Exrs, 1 Desaus. 515, 520 ; Tyrrell v. Morris, 1 N. C. 559 ; Richard- 
 son v. Knight, 69 Me. 285. 
 
 2 Whale V. Booth, 4 T. R. 625; Jones v. Clark, 25 Gratt. 642; Lothrop 
 «. Wightman, 41 Pa. St. 297; Leitch v. Wells, 48 N. Y. 685; Overfleld ij. 
 Bullitt, 1 Mo. 749; Hough v. Bailey, 32 Conn. 288; "Walker v. Craig, 18 
 111. 116; Makepeace ». Moore, 10 111. 474; Speelman v. Culbertson, 15 
 Ind. 441; Thomas v. Reuster, 3 Ind. 369; Wilson v. Doster, 7 Ired. Eq. 
 231; Polk V. Robinson, 7 Ired. Eq. 235; Griswold v. Chandler, 5 N. H. 
 492. 
 
 ' Hadley v. Kendrick, 10 Lea, 525; Smith v. Ayer, 101 U. S. 320, 327; 
 Duncanu. Jandon, 15 Wall. 165; Bayard v. Farmers' Bank, 52 Pa. St. 232; 
 See also Price v. Nesbit, 1 Hill (S. C.) Ch. 445; Harth v. Heddlestone, 
 2 Day, 321; Sherman v. Willett, 42 N. Y. 146; Pullman v. Byrd, 2 Strobh. 
 Eq. 134; Knight «. Yarborough, 4 Rand. 566; Mead v. Byington, 10 Vt. 
 116. But see Robbins v. Wolcott, 27 Conn. 234; Joslin v. Coughlin, 30 
 Miss. 502. 
 
 * Macleod v. Drummond, 17 Ves. 154; Scott v. Tyler, 2 Dick. 725 
 Ashton V. Atlantic Bank, 3 Allen, 217; Shaw v. Spencer, 100 Mass. 382 
 Dillaye v. Commercial Bank, 51 N. Y. 345; Smith v. Ayer, 101 U. S. 320 
 Creighton v. Pringle, 3 S. O. 77; Hertell v. Bogart, 9 Paige, 52; Hutchin 
 450 
 
CII. XVIU.] SALES BY AGENTS. § 277 
 
 cept always, when the purchaser participates in the fraudu- 
 lent design either without any benefit to himself,^ or with 
 benefit to himself, where he buys at a grossly inadequate 
 price ,^ or takes the property in settlement of the represent- 
 ative's debt to him.^ 
 
 Executors and administrators are liable to the estate if 
 
 V. state Bank, 12 Met. 421. See, also, Cadbury v. Duval, 10 Pa. St. 265, 
 267; Laurens v. Lucas, GKich. Eq. 217; Hauser v. Shore, 5 Ired. Eq 357; 
 Wormley v. Wormley, 8 Wheat. 442; Gardner v. Gardner, 3 Mason, 178; 
 Andrews v. Sparhawk, 13 Pick. 393. 
 
 ' Dodsou o. Simpson, 2 Rand. 294; Ashton v. Atlantic Bank, 3 Allen, 
 217; Tyrrell v. Morris, 1 Dev. & B. Eq. 559; Shaw v. Spencer, 100 Mass. 
 382; Sherburne v. Go Iwin, 44 N. H. 271, 279. But the transaction is 
 held to be collusive on the part of the purchaser, if he with the fore- 
 knowledge that the personal representative intends to make use of the 
 proceeds for an unlawful purpose. Petrie v. Clark, 11 Serg. & R. 377i 
 Colt V. Lesnier, 9 Cow. 320 ; Wilson v. Doster, 7 Ired. Eq. 231 ; Atcheson 
 V. Scott, 51 Tex. 213; Rogers v. Zook, 86 Ind. 237; Parkers. Gilliam, 10 
 Yerg. 394; Salmon v. Clagett, 3 Bland, 125. See, also, Garrard». R. Co., 
 29 Pa. St. 154; McNair'8.4ppeal, 4 Rawle, 155; Baines v. McGee, 1 Smed. 
 
 6 M. 208; Swink v. Snodgrass, 17 Ala. 653; Williamsons. Branch Bank, 
 
 7 Ala. 906; Johnson v. Johnson, 2 Hill Ch. 277; Saxon ■». Barksdale, 4 
 Desau. 526; Williamson v. Morton, 2 Md. Ch. 94; Graff v. Castleman, 5 
 Rand. 195; Dodson v. Simpson, 2 Rand. 294; Garnett ». Macou, Call, 
 308; Sacia u. Berthoud, 17 Barb. 15; Field v. Schieffelin, 7 John. Ch. 
 250. 
 
 2 Scott V. Tyler, 2 Dick. 725; Joyner v. Conger, 6 Jones Eq. 78; Mc- 
 Mulleu u. O'Reilly, 15 Ir. Ch. 251; Skriue v. Simmons, 11 Ga. 401; Heath 
 0. Allen, 1 A. K. Marsh. 442; Rice v. Gordon, 11 Beav. 265. 
 
 3 Bouney v. Ridgard, 1 Cox, 145; Andrew's. Wrigley, 4 Bro. C. C. 136; 
 Keane ». Robarts, 4 Madd. 357; Cubbridge s. Bradwright, 1 Russ. Ch. 
 549; Eland v. Eland, 4 MyL & Cr. 427; Cole v. Muddle, 10 Hare, 186; 
 Miller v. Helm, 2 Smed. & M. 687; Carter v. Manufacturers' Bank, 71 
 Me. 448; Smart v. Waterhouse, 6 Humph. 158; Jandon v. Nat. Bank, 8 
 Blatchf. 430; Fields. Schieffelin, 7 Johns. Ch. 250; Miller v. Williamson, 
 5Md. 219; Austin s. Wiisou, 21 Ind. 252; Dodson s. Simpson, 2 Rand. 
 294; Gray v. Armistead, 6 Ired. Eq. 74; Petrie v. Clark, 11 Serg. & R. 
 377; Shaw ». Spencer, 100 Mass. 382; Bradshaw v. Simpson, 6 Ired. Eq. 
 243; Graff v. Castleman, 5 Rand. 195; Williamson v. Branch Bank, 7 Ala. 
 906; Pendleton v. Fay, 2 Paige, 202; Wilson v. Doster, 7 Ired. Eq, 231; 
 Duncan v. Jandon, 15 Wall. 142; Green v. Sargeant, 23 Vt. 466; Scott v. 
 Searles, 15 Miss. 498; Sherburne v. Goodwin, 44 N. H. 271. 
 
 451 
 
§ 277 SALES BY AGENTS. [CH. XVIII. 
 
 they sell for an inadequate price, ^ or on credit, witliout 
 taking sufficient security.^ 
 
 Like all other agents, the executor or administrator is 
 not permitted to buy at his own sale, directly or indirectly ; 
 but such a purchase is not absolutely void, only voidable 
 at the option of those who are interested .in the estate.^ 
 
 There is no implied warranty of title in sales by execu- 
 tors and administrators,* and if the personal representative 
 should give an express warranty of title or quality, the 
 warranty would bind the representative and not the estate.^ 
 But in the absence of an express warranty, the personal 
 representative is not liable for any failure in quality or 
 title, unless he can be charged with some fraudulent mis- 
 
 1 Matter of Saltus, 3 Abb. App. 243. 
 
 2 Bower v. Shay, lOS 111. 132. But see Sparrow -o. Kelso, 92 Ind. 6U. 
 
 3 Chaffe V. Farmer, 34 La. An. 1017; Blount v. Davis, 2 Dev. 19; Lyon 
 V. Lyon, 8 Ired. 24; Williams v. Marshall, 4 Gill & J. 376; Grubbs v. 
 McGlawn, 39 Ga. 672; Anderson v. Green, 46 Ga. 361; Boyd v. Blankman, 
 29 Cal. 19; Shine ». Bedwin, 30 Ga! 780; Moore v. Hilton, 12 Leigh, 1; 
 Musselman v. Eshleman, 10 Pa. St. 401; Torrey v. Bank of Orleans, 9 
 Paige, 649; Green v. Sargeant, 23 Vt. 466; Mead v. Byington, 10 Vt. 116: 
 Fhinders v. Flanders, 23 Ga. 249; Mercer c.Newson, 23 Ga. 151; Gilbert's 
 Appeal, 78 Pa. St. 266; Lytle v. Beveridge, 58 N. Y. 593; Boraemc. "Wells, 
 19 N. J. Eq. 87; Davone v. Fanning, 2 Johns. Ch. 253; Ives v. Ashley, 
 97 Mass. 198; Harrington v. Brown, 5 Pick. 519; Jennison v. Hapgood, 7 
 Pick. 1,8; Skillman v. Sklllman, 15 N. J. Eq. 388; Coat v. Coat, 63 111. 
 73; Breckenridge v. Holland, 2 Blackf. 377; Marshall v. Carson, 38 N. J. 
 Eq. 250; Prindle v. Beveridge, 7 Lans. 225; Newton v. Roe, 33 Ga. 163; 
 Frazer». Lee, 42 Ala. 25; Glass ». Greathouse, 20 Ohio, 503; McGowan 
 V. McGowan, 48 Miss. 553; Culverhouse v. Shirey, 42 Ark. 25; Bafferty 
 V. Mallory, 3 Biss. 362; Froneberger v. Lewis, 70 N. C. 456. 
 
 * Chapman v. Speller, 14 Q. B. 621 ; Bartholomew v. Warner, 32 Conn. 
 98; Bingham v. Maxey, 15 111. 295; Blood v. French, 9 Gray, 197. The 
 purchaser takes the title at his own risk, and cannot refuse to pay the 
 price if the title should prove defective. Cogan v. Frisby, 36 Miss. 178; 
 Succession of White, 9 La. Ann. 232; Stanbrough v. Evans, 2 La. An. 
 474. But see Mockbee v. Gardner, 2 Har. & G. 176, ] 77. 
 
 * Mockbee v. Gardner, 2 Har. & G. 176, 177; Buckels v. Cunningham, 
 14 Miss. 358; Lynch v. Baxter, 4 Tex. 431; Ramsey ii. Blalock, 34 Ga. 
 376; Sumner v. Williams, 8 Mass. 162. But see, contra, Craddock v. 
 Stewart, 6 Ala. 77, 80. 
 
 452 
 
CII. XVIII.J SALES BY AGENTS. § 277 
 
 representfition, whereby the purchaser had been misled.* 
 And where the sale has been procured by fraud, it is a good 
 defense in any action against the purchaser by or in the 
 name of the estate; * while the personal representative is, 
 at the same time, liable in damages for the fraud.* 
 
 The general rule is that the executor or administrator 
 cannot bind the estate by any purchase he may make, 
 although it is for the benefit of the estate, and he is him- 
 self liable on such contracts.* And if purchases have to 
 be made in order to carry on work already begun, for 
 example, the cultivation of a planted crop, the purchases 
 must be paid for out of the income of the estate ; they 
 cannot be made a general charge upon the estate.^ But if 
 the executor or administrator has confined the liability on 
 the purchase to the income of the estate, and expressly 
 exempted himself from any personal liability, he only 
 charges himself with the duty of applying the income to 
 the liquidation of the debt.^ Since it is the duty of the 
 personal representative to find investments for all super- 
 fluous funds, belonging to the estate, he has the incidental^ 
 power to buy securities and other property with these 
 funds.' And so, likewise, can he buy in jiroperty at a 
 foreclosure sale, in order to protect the interest of the es- 
 tate in the mortgage.' 
 
 It is also the duty of the executor or administrator to 
 
 ' Mockbee v. Gardner, 2 Har. & G. 176, 177. 
 
 2 Williamson v. Walker, 24 Ga. 257; Crayton v. Monger, 9 Tex. 285; 
 Able V. Cliandler, 12 Tex. 88. 
 
 3 Able V. Cliandler, 12 Tex. 88; Sumner v. Williams, 8 Mass. 162; 
 Buckels V. Cunningham, li Miss. 358; Mockbee v. Gardner, 2 Har. & G. 
 176. See West v. Wright, 98 Ind. 335. 
 
 * Harding B. Evans, 3 Port. (Ala.) 221; Lovell». Field, 5 Vt. 218. 
 "Hardee v. Cheatham, 62 Miss. 41; Cain «. Young, 1 Utah, 361; S. 
 P. Ferry v. Laible, 27 N. J. Eq. 146. 
 
 6 Nichols V. Jones, 3 A. K. Marsh. 385; Allen b. Grafflns, 8 Watts, 397. 
 ' Trull V. Trull, 13 Allen, 407. 
 « Dusing V. Nelson, 7 Cal. 184. 
 
 453 
 
§ 278 SALES BY AGENTS. [CH. XVIII. 
 
 make suitable provision for the decent burial of the de- 
 ceased. But it is difficult to determine what amount he can 
 expend in the appointments of the funeral. As against 
 distributees and legatees, the general rule is that he will be 
 allowed charges for funeral expenses which are suitable and 
 reasonable to one occupying the social and financial position 
 of the deceased. But as against creditors, in the event of 
 the insolvency of the estate, a less liberal amount is 
 allowed.^ 
 
 § 278. Sales by guardians. — From one standpoint, it 
 would have been proper to treat in this connection of sales 
 by guardians. But inasmuch as the guardian has charge 
 of the property vested in a living person, his power to sell 
 is more properly treated under the head of involuntary 
 
 1 See Flintham's Appeal, II Serg. & E. 16; McGlinsay's Appeal, 14 
 Serg. & R. 64; Yardley v. Arnold, 1 C. & M. 434, 438; Beeves v. Ward, 2 
 Scott, 395; Patterson v. Patterson, 59 N. Y. 574; Eappelyea v. Russell, 1 
 Daly, 214; Wood o. Vandenburgh, 6 Paige, 277; Faunae's Estate, 75 Pa. 
 St. 220; Patterson's Estate, 1 "Watts & S. 292; Jennison v. Hapgood, 10 
 Pick. 77; Brackett v. TiUotson, 4 N. H. 208; Metz' Appeal, 11 Serg. & R. 
 204; Augle's Appeal, 76 Pa. St. 431. But see Stagg c. Punter, 3 Atk. 
 119; Fairman's Appeal, 30 Conn. 205, where the same liberal rule is held 
 to apply whether the estate turns out to be insolvent or not. 
 
 2 See ante, § 253. 
 
 454 
 
CHAPTEE XIX. 
 
 AUCTION SALES. 
 
 Section 280. Auction sale defined. 
 
 281. Auctioneer's license and bond. 
 
 282. Obligations of the auctioneer to the seller. 
 
 283. The powers of the auctioneer. 
 
 284. The conditions of the auction sale. 
 
 286. Competition must be fair — Manner of bidding, 
 
 286. Statute of frauds in respect to auction sales. 
 
 287. The auctioneer's compensation. 
 
 288. Auctioneer, when liable as vendor. 
 
 § 280. Auction sales defined. — The auction sale is a 
 competitive sale by public outcry, whereby the property is 
 offered generally for sale at the highest price which the bid- 
 ders are willing to offer for it. The two necessary ele- 
 ments are publicity and competition between bidders.^ If 
 either of the elements is absent, the sale cannot be called 
 an auction. For example, if the sale is public, but the 
 price is fixed, it is not an auction.^ But although the auc- 
 tioneer is ordinarily engaged in selling the goods of another, 
 it does not change the character of the sale, if he should 
 offer his own goods for sale.* 
 
 § 281. Auctioneer's license and bond. — In England 
 and in many of the United States, auctioneering is consid- 
 ered as a regular business, and the auctioneers as such are 
 taxed and subjected to police regulations. The regulation 
 
 1 Crandall v. State, 28 Ohio St. 480; Goshen v. Kern, 63 Ind. 473; 
 Jordan v. Smith, 19 Pick. 287. 
 
 2 Crandall v. State, 28 Ohio St. 479. 
 
 3 Goshen v. Kern, 63 Ind. 4G8. 
 
 455 
 
§ 282 AUCTION SALES. [CH. XIX. 
 
 usually takes the form of a license tax, which the auction- 
 eer is required to pay as a condition precedent to the right 
 of plying his calling.^ And, ordinarily the license confines 
 his authority to carry on his business to some particular 
 town or county, and even to some particular building or 
 room.'' But if an auction sale should be conducted by an 
 auctioneer, who had no license, while he would be person- 
 ally liable to the statutory penalty, the validity of the sale 
 would be in nowise affected by his delinquency.'' 
 
 The auctioneer is, also, often required to give bond for 
 the faithful performance of his duties, not only to the 
 State in the matter of paying his tax, but also to his 
 customers, who might otherwise be damaged by his mal- 
 feasances.* 
 
 § 282. Obligations of the auctioneer to the seller. — 
 
 Until some bid is accepted and the sale is closed, the 
 
 1 See State v. Poulterer, 16 Cal. 614; State v. Conkling, 19 Cal. 501; 
 Waterhouse ii. Dorr, 4 Me. 333 ; Decorah v. Dunstan, 38 Iowa, 96 ; Oska- 
 loosa V. Tallis, 25 Iowa, 440; State v. Racker, 24 Mo. 557; Hunt v. I'liil- 
 adelphla, 35 Pa. St. 277; Wright «. Atlanta, 64 Ga. 645; Wiggins v. 
 Chicago, 68 111. 372 ; Fretwell u. Troy, 18 Kan. 271 ; Deposit v. Pitts, 
 18 Hun, 475; Clark v. Cushman, 5 Mass. 505; Sewall v. Jones, 9 Pick. 
 412 ; Jordan v. Smith, 19 Pick. 287 ; Amite City v. Clemnntz, 24 La. Ann. 
 27 ; Florence y. Eichardson, 2 La. Ann. 663. 
 
 ^ See Waterhouse 1). Dorr, 4 Greenl 333; Wood v. Com., 12 Serg. & R. 
 213; Robinson v. Green, 3 Met. 159. 
 
 3 Robinson i;. Green, 3 Met. 159; Williston v. Morse, 10 Met. 17; 
 Gunnaldson v. Nyhus, 27 Minn. 440. See Clark v. Cushman, 5 Mass. 
 605; Hosmer v. Sargent, 8 Allen, 97; Sewall v. Jones, 9 Pick. 412. 
 
 * See State v. Poulterer, 16 Cal. 514; State v. Girardey, 34 La. An. 
 620 ; Florence v. Eichardson, 2 La. Ann. 663 ; Commissioners v. HoUoway, 
 3 Hawks, 234; Daly v. Com., 75 Pa. St. 331; Georgetown w. Baker, 2 
 Cranch, 291; Lea v. Yard, 4 Dall. 95; Dallas v. Chalover, 3 DaU. 500; 
 Davis V. Com., 3 Watts, 297; Charleston v. Patterson, 2 Bailey, 165; 
 McMechen v. Baltimore, 3 Har. & J. 634; Charity Hospital v. Girardey, 
 36 La. Ann. 605; St. Louis Church v. Bonneval, 13 La. Ann. 321. But 
 any change in the liability of the auctioneer, as where his notes are ac- 
 cepted in lieu of the cash, will discharge his bondsmen. Monton v. 
 Noble, 1 La. Ann. 192. 
 456 
 
CH. XIX. J AUCTION SALES. § 282 
 
 auctioneer is exclusively the agent of the seller; ^ and 
 where the auction is conducted by the sheriff in execution 
 of a judgment, the principal is the judgment debtor and 
 not the creditor, so that the latter is not responsible for the 
 sheriff's misrepresentations.^ The auctioneer is bound to 
 obey the instructions given to him by the seller, and he is 
 liable in damages to the principal, if he should disobey these 
 instructions,^ or should be guilty of any negligence in the 
 performance of his duties, either in the case of the property 
 before the sale,* or in the conduct of the sale.^ He is also 
 liable for any negligence in collection and transmission of 
 the price of the goods ; ^ but in the absence of fraud or mis- 
 appropriation he is not liable for interest on account of delay 
 in transmission of the money due to the principal.' But 
 the auctioneer is not obliged to turn over to the principal a 
 sum of money, deposited by the buyer in contemplation of 
 and for the purpose of effecting the completion of the sale, 
 until the sale has been completed. For, until it is com- 
 pleted, the auctioneer holds this sum of money as a stake- 
 holder for both parties.* 
 
 1 Williams v. Poor, 3 Cranch C. C. 251. 
 
 2 Weldler v. Farmers' Bank, 11 Serg. & 11. 134; McKnight v. Gordon, 
 13 Rich. Eq. 222; Stetson v. O'SuUivan, 8 Allen, 321. 
 
 3 Warlow V. Harrison, 29 L. J. Q. B. 14; Steele v. EUmaker, 11 Serg. 
 & R. 86; Williams v. Evans, L. R. 1 Q. B. 352; Broughton v. Silloway, 
 114 Mass. 71; Williams v. Poor, 3 Cranch C. C. 251; Wolfe v. Luyster, 
 1 Hall, 146. See Bush v. Cole, 28 N. Y. 261. 
 
 * Davis V. Garrett, 6 Bing. 716; Massey v. Banner, 1 J. & W. 241; 
 Maltby v. Christie, 1 Esp. 340; Powell v. Sadler, Paley P. & A. 80; 
 Topham v. Braddick, 1 Taunt. 672. 
 
 * Hicks V. Minturn, 19 Wend. 550; Boding. McCloskey, 11 La. Ann. 
 46; Townsend v. Van Tassell, 8 Daly, 261. 
 
 « Crosskey v. Mills, 1 C. M. & B. 298; Tripp v. Barton, 13 R. I. 130; 
 Gray v. Haig, 20 Beav. 219, 239; Andrew v. Robinson, 3 Camp. 199; Earl 
 of Ferress v. Robins, 2 C. M. & R. 152; Williamson v. Baltimore, 19 Md. 
 413; Nelson v. Aldridge, 2 Stark. 435; Williams v. Millington, 1 H. Bl. 81. 
 
 ' Rogers v. Boehm, 2 Esp. 701 ; Tamer v. Burkinshaw, L. R. 2 Ch. 488. 
 
 8 Hardingham v. Allen, 17 L. J. C. P. 198; Murray v. Mann, 2 Exch. 
 538. See Ellison v. Kerr, 86 111. 427. 
 
 457 
 
§ 283 AUCTION SALES. {CH. XIX. 
 
 § 283. The powers of tlie auctioneer. — The general 
 powers of the auctioneer may be enlarged or restricted by 
 express instructions ; but in the absence of such instruc- 
 tions, they are determined by custom and usage. 
 
 In the first place, the appointment of an auctioneer is 
 personal in character ; and if he is not expressly authorized 
 to do so, he cannot delegate his discretionary powers to 
 another,^ although the ministerial acts of the crier may be 
 entrusted to another, provided (hat the appointed auc- 
 tioneer was present and in charge of the sale.^ 
 
 The auctioneer has no implied authority to warrant the 
 goods ; ' and if he warrants without express authority to do 
 so, it is not good except as his personal warranty.* 
 
 Whether the auctioneer will have the power to bind the 
 principal by his receipt of the payment of the price, de- 
 pends upon the conditions of the sale. If the sale is made 
 under the express condition that the sale will not be valid, 
 unless the auctioneer shall receive a deposit in part payment, 
 it seems that his implied authority to receive payment will 
 bo thereby excluded.^ And he also has no authority to 
 
 ' Com. V. Harnden, 18 Pick. 482 ; Wolf v. Van Metie, 27 Iowa, 348 ; 
 Singer Mfg. Co. v. Chalmers, 2 Utah, 542; Stone v. Stone, 12 Mo. 400. 
 
 2 Poree v. Bonneval, 6 La. Ann. 386 ; Com. v. Harnden, 19 Pick. 482. 
 
 3 Blood u. French, 9 Gray, 197; Worthy v. Johnson, 8 Ga. 236; Com- 
 missioner'!;. Thompson, 4 McCord, 434; Davis v. Murray, 1 Mill. Const. 
 143; Robinson v. Cooper, 1 Hill, 286; Stone «. Pointer, 5 Munf. 287; 
 Dwight's Case, 15 Abb. Pr. 259; Parker v. Partlow, 12 Rich. 679; Payne 
 V. Leconfleld, 51 L. J. Q. B. 642; Hill v. Balls, 27 L. J. Exch. 45; Isley 
 V. Stewart, 4 Dev. & B. 160; Cameron i;. Logan, 8 Iowa, 434; Thayer v. 
 Sheriff, 2 Bay, 169; Davis v. Hunt, 2 Bailey, 412; Yates v. Bond, 2 Mc- 
 Cord, 382; Bashore v. Whisler, 3 Watts, 490; The Monte Allegro, 9 
 Wheat. 646. See Stoney v. Shultz, 1 Hill Ch. (S. C) 465; Com. v. Ma- 
 con, 2 Brev. 105; Forsythe v. Ellis, 4 J. J. Marsh. 298; Com. v. Dickin- 
 son, 5 B. Mon. 606 ; Harrison v. Shanks, 13 Bush, 620. 
 
 < Dent V. McGrath, 3 Bush, 174; Schell v. Stephens, 50 Mo. 375; Mc- 
 Grew V. Forsythe, 31 Iowa, 179; Woodward v. Boston, 116 Mass. 81. 
 
 6 See Sykes v. Giles, 5 M. &. W. 645; Thompson v. Kelly, 101 Mass. 
 291. But I would consider the correctness of this opinion as somewhat 
 doubtful. 
 
 458 
 
CH. XTX.j AUCTION SALES. § 283 
 
 receive payment where he has not the possession of the 
 soods,* or the conditions of the sale indicate an intention 
 on the part of the principal to receive payment himself. 
 But in the absence of conditions and restrictions to the 
 contrary, if the auctioneer has possession of the goods 
 which he sells, he has the implied authority to receive pay- 
 ment for them.^ The principal is bound by all the acts 
 and representations which the auctioneer is authorized by 
 usage and custom to make, limited otherwise only by the 
 express restrictions of the principal and that, too, only as 
 to those who deal with the auctioneer with knowledge of 
 the existence of express restrictions upon his authority. s 
 
 The auctioneer, like every other agent, cannot buy goods 
 at his own sale ; he cannot even sell the goods to a firm or 
 company of which he is a member. And in such cases the 
 sales are voidable at the instance of the principal.* It is 
 held, however, that the auctioneer may bid himself for a 
 third party .^ 
 
 In an action brought against him by the principal for 
 the amount of the sales, the auctioneer is estopped from 
 disputing the title of the principal to the goods.' 
 
 1 Offley V. Clay, 2 M. & G. 172. 
 
 2 Sykes «. Giles, 6 M. & W. 645; Broughton ». Sillowa,y, 114 Mass. 
 71 ; Tripp v. Barton, 13 E. I 130; Taylor v. Wilson, 11 Met. 44; Capel v. 
 Tliornton, 3 C. & P. 352. 
 
 3 Bottoms V. Mithvin, 26 Ga. 481; Requa v. Rea, 2 Paige, 339; Eang- 
 don u. Summers, 10 Ohio St. 77; Ives v. Tregent, 29 Mich. 390; Pitt»- 
 Yalden, 4 Burr. 20G0; Moore v. Mourgue, Cowp. 480; Kussell v. Palmer, 
 2 Wils. 325. But see Coats v. Stewart, 19 Johns. 298; Davis v. Hunt, ; 
 Bailey, 412; Phillips i;. Behn, 19 Ga. 298; Davis v. Irwin, 8 Ga. 1532 
 Jones a. Thacker, 61 Ga. 329. 
 
 * Salomons v. Pender, 34 L. J. ExcU. 95; Baskett i). Cafe, 4 De G. & 
 Sm. 388; Brock v. Rice, 27 Gratt. 812; Swires v. Brotherline, 41 Pa. St. 
 135 ; Oliver v. Court, Dan. 301 . See Brotherline v. Swires, 46 Pa. St. 68 ; 
 Morse v. Royal, 12 Ves. 355. But see Railroad v. Marsh, 1 C. & J. 406. 
 
 « Scott V. Mann, 36 Tex. 157. But see Coles u. Trecothick, 9 Ves. 234, 
 238; Campbell ». Swan, 48 Barb. 109. 
 
 6 Hutchinsoa v. Gordon, 2 Har. 179; Osgood v. Nichols, 5 Gray, 420. 
 
 459 
 
§ 284 AUCTION SALES. [CH. XIX. 
 
 The autliority of the auctioneer to represent the princi- 
 pal ceases with the conclusion of the sale and the delivery 
 of the goods. The principal is not bound by any contract 
 or agreement which the auctioneer might make afterwards, 
 which in any way affects the terms or obligation of the 
 sale.^ 
 
 § 284. The conditions of the auction sale. — The auc- 
 tion sale is almost always subjected to conditions express 
 or implied, which the auctioneer must see performed be- 
 fore he parts with the property.* Ordinarily, these express 
 conditions are imposed by the principal, and he may 
 change them during the progress of the sale, subject, of 
 course, to the necessity of giving due notice of the change 
 to the bidders.^ But it seems that the auctioneer has, in 
 the absence of express conditions from the principal, au- 
 thority to impose reasonable conditions for the purpose of 
 preventing fraud and unfair competition.* But in order 
 that the conditions may be enforced against the purchaser, 
 they must have been advertised suflBciently by newspapers 
 and posters around the auction room and the like, as well 
 as by the verbal announcements of the auctioneer, in order 
 to be able to charge the bidders with the knowledge of the 
 conditions. If reasonable care has not been exercised in 
 giving notice of the conditions, the purchaser will not be 
 
 1 Stewart v. Garvin, 33 Mo. 103; Boinest v. Leignez, 2 Rich. 464; 
 SmlLh V. Rice, 1 Bailey, 648; Bradford u. Bush, 10 Ala. 386. 
 
 ' Langsdale v. Mills, 32 Ind. 281; Williamson v. Berry, 8 HoTT. 495; 
 Singleton v. Ilerriott, Dudley, 254; McCall v. Elliott, Dudley, 250; 
 Moore v. Owsley, 37 Tex. 603; Minnesota Co. v. St. Paul Co., 2 Wall. 
 609; Welch v. Louis, 31 111. 446. 
 
 * Morrison v. Morrison, 6 Watts & S. 618; Grantland v. Wright, 2 
 Munf. 179; McLellan v. Cumberland Bank, 24 Me. 566; Satterfleld v. 
 Smith, 11 Ired. L. 60; Daniel v. Jackson, 63 Ga. 87; Wright v. Deklyne, 
 1 Pet. C. C. 199; Eankin v. Matthews, 7 Ired. L. 286. 
 
 * National Bank of Metropolis v. Sprague, 20 N. J. 169; Wright v. 
 Yetts, 30 Ind. 185; Stead b. Course, 4 Cranch, 403; Blossom v. Railroad 
 Co., 3 Wall. 196. See Ashcom v. Smith, 2 Pen. & W. 211. 
 
 460 
 
CH. XIX. J AUCTION SALES. § 285 
 
 bound by them.^ In the absence of express conditions 
 or of notice of them, the purchaser will take the property 
 subject only to the implied conditions.^ Conditions, which 
 are usually imposed upon auction sales, relate to the man- 
 ner of bidding, the deposit of sum of money as earnest, 
 the signing of the contract, and the like. But almost any 
 condition may be attached, provided its terms and scope 
 are very clearly set forth. The statement of the condi- 
 tions must be sufficiently clear to enable the purchaser to 
 understand what they are.^ 
 
 § 285. Competition must be fair — Manner of bidding. 
 
 The universal implied condition is that the competition 
 between bidders, and the conduct of the sale by the auc- 
 tioneer, should be fair and open.* If the auctioneer or 
 principal employs persons to offer false bids, for the pur- 
 pose of raising the price beyond what the bona fide 
 
 ^ Freme v. Wright, 4 Madd. 364; Bywater b. Richardson, 1 A. & E. 
 508; Nat. Bank of Metropolis v. Sprague, 20 N. J. Eq. 159; Trickel v. 
 Myers, 18 La. Ann. 567; Shields v. Harrison, 77 N. C. 115; Pope v. Bur- 
 rage, 115 Mass. 282; Backer v. Hamilton, 18 La. Ann. 553; Brubaker v. 
 Jones, 23 Kan. 411; Wainwright v. Read, 1 Desau. 573; Torrance v. 
 Bolton, L. R. 14 Eq. 124. 
 
 2 Buggies V. Centerville Bank, 43 Mich. 192 ; McGown v. Wilklns, 1 
 Paige, 120; Parker v. Storts, 15 Ohio St. 351; Myers v. Raymond, 5 Ela. 
 516; Skull V. Glenister, 16 C. B. (n. s.) 81; Whittington v. Corder, 16 
 Jur. 1034; Stanton v. Tattershall, 1 Sm. & G. 529; Pope v. Garland, 4 
 Yo. & C. 403; Bradford v. McConihay, 15 W. Va. 782; Succession of 
 Triche, 29 La. Ann. 384; Gillett v. Balcomb, 6 Barb. 370; Hotchkiss v. 
 Clifton Air Cure, 2 Abb. App. 406. 
 
 ^ Chambers v. Tulane, 9 N. J. Eq. 146; Brown v. Hoff, 5 Paige, 235; 
 McLean v. Green, 2 McMuU. 17; Laight «. Pell, 1 Edw. Ch. 577; Leni- 
 hamu. Hamann, 14 Abb. Pr. (n. s.) 274; Brownlee v. Campbell, 5 App. 
 Cas. 925; Hanks v. Pulling, 25 L. J. Q. B. 375; Else v. Else, L. R. 13 Eq. 
 196; Atkins v. Howe, 18 Pick. 11; Osborne v. Harney, 7 Jur. 229; Gor- 
 don V. Sims, 2 McCord Ch. 151; Waterman v. Spaulding, 51 111. 425; 
 Brown V. Wallace, 4 telll & J. 479; Higgins v. Delaware, &c., R. R. Co., 
 60 N. Y. 553; Plume v. Small, 5 N. J. Eq. 460. 
 
 * Fairfax v. Hopkins, 2 Cranch C. C. 134; Myers v. Sanders, 7 Dana, 
 506 ; Johnson v. Eason, 3 Ired. Eq. 330. 
 
 461 
 
§ 2b5 AUCTION SALES. [CH. XIX. 
 
 competition would bring,^ or the buyers form a combina- 
 tion, whereby one person will represent the combination, 
 bid in the property offered for sale without competition, and 
 divide it among the members of the combination,^ the 
 sale is voidable at the instance of the party thereby de- 
 frauded. 
 
 The bidding should be conducted in an open and fair 
 manner ; and bids obtained by secret signs from parties 
 specially favored are not allowed.^' But a valid bid may 
 be received in advance of the sale, and be announced by 
 the auctioneer at the sale ; * and so, also, it has been held 
 that the owner may employ an agent to bid for him.^ 
 
 But if the sale is made expressly without reserve, it is 
 unlawful for the auctioneer to receive a bid from his prin- 
 cipal or in his behalf. A sale without reserve excludes the 
 right of the owner of the goods to bid in his own behalf, 
 and compels him to sell them for the highest price which 
 the bidders by their competition may be induced to offer .^ 
 And in any case, even where the bidding by the principal 
 is permitted, it must be openly announced at the sale. It 
 will not be lawful for the auctioneer to receive the bids 
 secretly.' But the creditor, at whose instance the sale is 
 had, is not hampered in any way in his right to protect his 
 own interests by bidding on the property.* 
 
 ' See ante, § 165, for a fuller discussion of this question. 
 2 See ante, § 169, for a fuller discussion of this fraud, 
 s Conover v. Walling, 15 N. J. Eq. 173. 
 * Tyree v. Williams, 3 Bibb, 368. 
 
 5 See ante, § 165; Bowles v. liound, 5 Ves. 508; Shaw v. Simpson, 
 1 J. & W. 389; Malius v. Freeman, 2 Keen, 25; Howard v. Castle, 6 T. 
 B. 642; Patterson v. Preston, 51 Md. 190; Delves v. Delves, L. K. 20 Eq. 
 77; Jervise v. Clarke, IJ. & W. 392. 
 
 6 Thornett o. Haines, 15 M. & W. 367; Meadows v. Tanner, 5 Madd. 
 34; Robinson v. Wall, 10 Beav. 61; Wavlow v. Harrison, 25 L. J. Q. B. 14. 
 
 ' Baham v. Bach, 13 La. 287; Bexwell u. Christie 1 Cowp. 395; War- 
 low V. Harrison, 29 L. J. Q. B. 14. The bid of the principal may be an- 
 nounced in advance of the sale. Else v. Barnard, 28 Beav. 228. 
 
 " Dexter v. Shepard, 117 Mass. 480. 
 462 
 
GH. XIX.] AUCTION SALES. § 286 
 
 The auctioneer must receive all bids impartially, except 
 that he may refuse the bids of irresponsible persons.^ 
 Before any bid has been accepted, either party may revoke 
 the auctioueer's authority. But as soon as a bid has been 
 accepted, the sale becomes binding upon both parties, and 
 neither can withdraw. But a condition, taking away from a 
 bidder the right to retract, is void." But if it can be shown, 
 after the goods have been "knocked down" to a bidder, 
 that there had been a higher bid, which the auctioneer had 
 not heard, the sale can be reopened, and the property given 
 over to the one who had actually made the highest bid.^ 
 
 § 286. Statute of frauds in respect to auction sales. — 
 
 At one time it was doubted whether the provision of the 
 statute of frauds, which required the sales of goods, wares 
 and merchandise, under certain circumstances, to be proved 
 by a memor^andum in writing, applied to auction sales. 
 But except the auction sales, which are likewise sales by 
 legal process, the statute applies to these sales, as well as 
 to private sales; and the general rule is, that, to be valid, 
 auction sales must conform to the requirements of the 
 statute of frauds in respect to sales of personal property.* 
 
 ' Kinney v. Showdey, 1 Hill, 544; Holder v. Jackson, 11 N. C. C. P. 
 543; Den v. Zellers, 7 N. J. L. 153. See ante, § 165. 
 
 ''■ Payne v. Cave, 3 T. R. 148; Byrne v. Van Lieuhoven, 5 C. P. D. 341 ; 
 Crotenkemper v. Achtermeyer, 11 Bush, 222; Mauser ». Bach, 6 Hare, 
 443. 
 
 3 Pike V. Bach, 38 Me. 302. 
 
 ■■ Davis V. Bowell, 2 Pick. 64; People v. White, 6 Cal. 75; Baker u. 
 Jameson, 2 J. J. Marsh. 547; Bleeker v. Franklin, 2 E. D. Smith, U3; 
 Sanderlln v. Roman Catholic Church, R. M. Charlt. 551 ; Burke v. Haley, 
 2 Gilm. 614; Hadden v. Johnson, 7 Ind. 394; Brent v. Green, 6 Leigh, 
 16; Christie ti. Simpson, 1 Rich. 407; Elfe v. Gadsden, 2 Rich. 373; Bick- 
 ueMv. Byrnes, 23 How. Pr. 486; Evans v. Ashley, 8 Mo. 177; Alexander 
 V. Merry, 9 Mo. 610; Singstach v. Harding, 4 H. & J. 186; Pike ». Balch, 
 38 Me. 302; Spencer v. Pearce, 10 Gill & J. 294; Dewall v. Peach, 1 Gill, 
 372; Hart v. Rector, 13 Mo. 497; Bailey v. Ogden, 3 Johns. 399; Jackson 
 V. Catlin, 2 Johns. 248; Meadows v. Meadows, 3 McCord, 458; Davis v. 
 Robertson, 1 Mill Const. 71 ; Ennls v. Walker, 3 Blackf . 472 ; Gossard v. 
 
 463 
 
§ 286 AUCTION SALE!-. [CH. XIX, 
 
 But wherever a memoramlum iu writiug is require 1 by 
 the statute of frauds, signed by the party to be charged, 
 in order to bind the parties to an auction sale, the very 
 necessity of the situation would require some departure 
 from the rule as to signature by the parties or by their 
 specially constituted agents ; and the custom and usage 
 of trade has supplied the implication that, while for 
 all other purposes the auctioneer is the agent only of the 
 seller, after the hammer has fallen, he becomes agent of 
 both seller and buyer, for the purpose of executing a mem- 
 orandum in writing of the sale, which will bind both parties 
 to it. Hence the memorandum of the sale made and signed 
 by the auctioneer, satisfies the requirements of the statute, 
 and binds both parties. ^ Like every other memorandum 
 of sale, this memorandum must contam every element of 
 the contract, so that the entire contract, — the parties, the 
 subject-matter, the considerations, the terms and condi- 
 
 Ferguson, 54 Ind. 519; Bell v. Owen, 8 Ala. 312; Buckle v. Barbour, 48 
 Ind. 274; Brock v. Jones, 8 Tex. 78; Bozza v. Bowe, 30 111. 198; Bent v. 
 Cubb, 9 Gray, 397. 
 
 1 O'Donnell v. Leeman, 43 Me. 158; Cleaves v. Foss, 4 Greenl. 1; 
 Episcopal Church v. Wiley, 2 Hill (S. C.) Ch. 584; Gordon v. Sims, 2 
 McCord Ch. 151; Doty v. Wllger, 15 111. 410; Burke v. Haley, 2 Glim. 
 (111.) 614; Sanborn v. Chamberlin, 101 Mass. 409; Pugh v. Chessedine, 
 11 Ohio, 109; White v. Crew, 16 Ga. 416; Harvey v. Stevens, 43 Vt. 653; 
 Baptist Church v. Bigelow, 16 Wend. 28 ; Lewis v. "Wells, 50 Ala. 198 ; 
 Brent u. Green, 6 Leigh, 16; Hart ». Woods, 7 Blackf. 568; Linn Boyd, 
 &o. Co. V. Terrill, 13 Bush, 463; Smith v. Arnold, 5 Mason C. C. 414; 
 Gill V. Hewett, 7 Bus'.i, 10; Hunt o. Gregg, 8 Blackf. 105; Adams v. 
 McMillan, 7 Port. 73; McComb v. Wright, 4 Johns. Ch. 659; Tallman v. 
 Franklin, 14 N. Y. 584; Dawson v. Miller, 20 Tex. 171 ; Craig v. Godfrey, 
 1 Cal. 415 ; Morton v. Dean, 13 Met. 385 ; Bent v. Cobb, 9 Gray, 397 ; Lake 
 V. Campbell, 18 111. 106; Anderson v. Chick, 1 Bailey Eq. 118; Meadows v. 
 Meadows, 3 McCord, 458; Pike v. Balch, 38 Me. 302; Alna v. Plummer, 4 
 Greenl. 258; Walker v. Herring, 21 Gratt. 678; Davis v. Kowell, 2 Pick. 
 64; Gill V. Bricknell, 2 Cush. 355; Horton v. McCarty, 53 Me. 894; White 
 V. Watkins, 23 Mo. 423; Gwathney v. Cason, 74 N. C. 5; Mews v. Carr, 
 1 Exch. 484; Entz v. Mills, 1 McMuU. 454; Clarkson v. Noble, 2 U. C. Q. 
 B. 361; Buckmaster I!. Harrop, 13 Ves. 450; Warlow v. Harrison, 28 L. 
 L. J. Q. B. 18. See ante, §§ 57, 77. 
 464 
 
CH. XIX. j AUCTION SALES. § 286 
 
 tions of sale, — may be ascertained from a perusal of the 
 memorandum.' But the memorandum need not be con- 
 fined to one paper. The memorandum may consist of a 
 number of detached papers, and if all the essentials of the 
 contract may be gathered from these several papers, the 
 statute will be satisfied, provided the papers are all at- 
 tached together, or the signed paper refers to the others 
 as being a part of the memorandum.^ 
 
 The auctioneer's clerk has the same power given him by 
 usage to sign the memorandum in the name of, or as agent 
 of, both parties, as has the auctioneer ; so that the clerk's 
 signature satisfies the requirements of the statute.^ 
 
 If the auctioneer is selling his own goods, his personal in- 
 terest as seller precludes his assumption of a fiduciary posi- 
 tion toward the buyer, and hence his memorandum of the 
 sale will not bind the buyer.* 
 
 1 Bailey v. Ogden, 3 Johns, 399; Meadows v. Meadows, 3 McCord, 
 458; Ridgway v. Ingrain, 50 Ind. 148; Jolinsou v. Buck, 35 N. J. L. 338; 
 McFarrow's Appeal, 11 Pa. St. 503; Doty v. Wilder, 15 111. 407; Lewis v. 
 Wells, 50 Ala. 198; Gwathney v. Cason, 74 N. C. 5; Morton v. Dean, 13 
 Met. 385; Soles v. Hickman, 20 Pa. St. 180; Norris v. Blair, 39 Ind. 90; 
 O'Donnell v. Leeman, 43 Me. 158; Price v. Durin, 56 Barb. 647; Eishton 
 V. Whatmorr, L. E. 8 Ch. D. 467. 
 
 2 Gowen v. Klous, 101 Mass. 449; Hinde v. Gale, 7 East, 538; Tallman 
 V. Franklin, 14 N. Y. 584; 3 Duer, 395; Horton v. McCarty, 53 Me. 394; 
 Price V. Durin, 56 Barb. 647; Adams v. McMillin, 7 Port. (.Ala.) 73; 
 Jolinson V. Buck, 35 N. J. L. 338. 
 
 8 Smith V. Jones, 7 Leigh, 165; Baptist Church v. Bigelow, 16 Wend. 
 28; Johnson v. Buck, 35 N. J. L. 338; Green v. Merriam, 28 Vt. 801; Hart 
 U.Woods, 7 Blackf. 568; Alna v. Plummer, 4 Greenl. 258; Adams ». 
 McMullan, 7 Port. (Ala.) 73; Cherry v. Long, Phill. L. 466; Gill v. Bick- 
 nell, 2 Cush. 355; Simpson v. Pettus, 7 Ala. 543; Dotyu. Wilder, 15 111. 
 407; Morris v. Blair, 39 Ind. 90; Harvey v. Stephens, 43 "Vt. 653; Frost v. 
 Hill, 3 Wend, 386; Brent v. Green, 6 Leigh, 16. But see Cathcart v. 
 Kiernaghan, 5 Strobh. 129; Christie v. Simpson, 1 Eich. 407; Entz v. 
 Mills, 1 McMull. 453; Pope v. Chafee, 14 Eich. Eq. 69; Meadows v. 
 Meadows, 3 McCord, 458; Carmack v. Masterson, 3 Stew. & P. 411. 
 
 * Full V. David, 45 Mo. 446; Smith v. Arnold, 5 Mason C. C. 414; 
 Wright D. Dannah, 2 Comp. 205; Bent. v. Cobb, 9 Gray, 397; Johnson v. 
 Buck, 36 N. J. L. 338. The auctioneer is also disabled from acting as 
 
 30 465 
 
§ 288 AUCTION Sales. [ch. xix. 
 
 § 287. The auctioneer's compensation. — The auc- 
 tioneer is of course entitled to a reasonable compensation. 
 And in the absence of statutory regulation, the parties may 
 agree upon a rate of compensation. But he does not 
 earn his compensation until he has made a sale ; ^ and this 
 is true, although his sale has been prevented by the prin- 
 cipal's private sale of the goods.^ But if the sale has been 
 completed, and through no fault of the auctioneer the sale 
 has been set aside and the goods resold, the auctioneer 
 will be entitled to compensation for both services.* The 
 auctioneer has a lien for his compensation on the goods 
 while they remain in his possession, and after their deliv- 
 ery ou the proceeds of the sale, as long as they are in his 
 possession.* And he may appropriate, in payment of his 
 claim for compensation, as much of the price of the goods 
 sold as may be necessary for that purpose.^ 
 
 § 288. Auctioneer, when liable as vendor. — Like 
 every other agent, the auctioneer is not liable as principal, 
 where he lets the owner of the goods be known to the bid- 
 ders,® as long as he does not become a participant in some 
 wrongful act of commission; as, for example, where he 
 sells goods which he knows do not belong to his principal,'^ 
 and even when he did not know that they were the prop- 
 erty of another. Even in that case, the auctioneer is liable 
 
 the agent of the buyer In making the memorandam, where he held the 
 property as guardian. Bent v. Cobb, 9 Gray, 397. 
 
 1 Cochran v. Johnson, 2 McCord, 21 ; Cannon v. Kelly, Hayes & J. 666; 
 Ward V. James, 8 Hun, 526. 
 
 2 Simpson v. Lamb, 17 C. B. 603; Girardey v. Stone, 24 La. Ann. 286 
 ' Benner's Estate, 3 Brewst. 398. But see Succession of Navarro, 
 
 24 La. An. 106. 
 
 * Williams e. MlUington, 1 H. Bl. 81 ; Succession of Dowler, 29 La. 
 Ann. 437 ; WooUe ». Home, L. J. 46 Q. B. 634. 
 
 ' Harlow B. Sparr, 15 Mo. 184. 
 
 « Dugdale o. Lovering, L. R. 10 C. P. 196. 
 
 ' Hardacre v. Stewart, 5 Esp. 104. 
 46(5 
 
CH. XIX.] AUCTION SALES. , § 288 
 
 in trover to the real owner of the goods. ^ He is also liable 
 for allowing by-bidding in a sale without reserve when he 
 makes the sale without disclosing the name of his princi- 
 pal.2 
 
 1 Hoffman v. Carow, 22 Wend. 285 ;Hills ». Snell, 104 Mass. 173 ; Coles 
 V. Clark, 3 Gush. 399; Rogers v. Hine, 1 Cal. 429; Courtis v. Cane, 32 Vt. 
 232; Gilmore v. Newton, 9 Allen, 171; ■Williams v. Merle, 11 Wend. 80. 
 
 2 Stahl V. Charles, 5 Abb. Pr. 348; Bush v. Cole, 28 N. Y. 261; Mauri 
 V. Heflernan, 13 Johns. 58; Schell v. Stephens, 50 Mo. 376; Warlow v. 
 Harrison, 28 L. J. Q. B. 18; Hanson v. Roberdeane, Peake N. P. C. 163; 
 McComb V. Wright, 4 Johns. Ch. 659; Mills v. Hunt, 20 Wend. 431; 
 Eowle V. Leavitt, 23 N. H. 360. 
 
 467 
 
CHAPTBE XX. 
 
 ILLEGAL SALES. 
 
 Section 290. General propositions — Presumption of legality. 
 
 291. By what law is legality of sale determined. 
 
 292. EHect of partial illegality. 
 
 293. Effect of execution of illegal sales. 
 
 294. Sales for an unlawful purpose, when illegal. 
 
 295. Sales illegal at common law. 
 
 296. Compounding of crimes and misdemeanors as a consider- 
 
 ation. 
 
 297. Contracts with alien enemies and in aid of rebellion. 
 • 298. Bribery. 
 
 299. Lobbying. 
 
 300. Sales of public office and private recommendations. 
 
 301. Wagers. 
 
 302. Option sales, when illegal. 
 
 303. Contracts in restraint of trade. 
 
 304. Maintenance and champerty. 
 
 305. Offenses against morality. 
 
 306. Sales in violation of statutes. 
 
 307. Sales of smuggled goods. 
 
 308. Sunday sales. 
 
 309. Sales of intoxicating liquors. 
 
 § 290. General propositions — Presumption of legal- 
 ity. — A sale is illegal, whenever it is prohibited by law, 
 expressly or by implication. A sale is presumed to be 
 valid, until it ia shown to be illegal, and the burden of 
 proving its illegality is on the party who alleges it.' And 
 if a sale is valid at common law, it is presumed to be legal 
 in every State in which the common law prevails, and a 
 
 1 Wilson V. Melvin, 13 Gray, 73; Trott v. Irish, 1 Allen, 481; Pratt v. 
 Langdon, 97 Mass. 97 ; Brigham v. Potter, 14 Gray, 522. 
 468 
 
CH. XX. J ILLEGAL SALES. § 291 
 
 statute to the contrary must be affirmatively established.^ 
 But, notwithstanding this general presumption in favor of 
 the legality of a sale, the sale is made illegal by statute, al- 
 though the statute does not expressly declare it to be void. 
 There are three forms which the statute may assume : the 
 sale may be declared void ; it may be simply prohibited; 
 and the seller may be subjected to a penalty for making the 
 sale, without the sale being prohibited or declared void. In 
 all three cases, it is held that the sale will be void.^ 
 
 An illegal sale is absolutely void, not voidable, and hence 
 there can be no ratification of it,^ not even after the repeal 
 of the law which made it illegal. A sale is illegal or not, ac- 
 cording to the law in force when the sale was made,* and a 
 promise to pay for the goods, after a repeal of the law, is not 
 binding, 'unless it is based upon some new consideration.^ 
 
 § 291. By what law is legality of sale determiijetl. — 
 
 The legality of a sale is determined by the law of the place 
 
 ' Adams v. Gay, 19.Vt. 358; Doolittle v. Lyman, 44 N. H. 608; Corn- 
 ing !). Abbott, 54 N, H. 469; Tuttle v. Holland, 43 Vt. 542; O'Eourke v. 
 O'Rourke, 43 Mich. 68. 
 
 2 Bancrofts. Dumas, 21 Vt. 456; Mitchell v. Smith, 1 Binn. 110; Mil- 
 ler?). Post, 1 Allen, 435; Griffith v. Wells, 3 Deuio, 227; Barton v. Port 
 Jackson, &c., Ice Co., 17 Barb. 404; Buxton d. Hamblen, 32 Me. 348; 
 Woods V. Armstrong, 54 Ala. 150; Roby v. West, 4 N. H. 285. 
 
 3 Story on Sales, § 617; Day r. McAllister, 15 Gray, 433 ; Pope v. Linn, 
 50 Me. 83; Vinz v. Beatty, 61 Wis. 645; Reaves v. Butcher, 31 N. J. L. 
 224; Kountz v. Price, 40 Miss. 341; Catlett v. Trustees, 62 Ind. 365; 
 Parker v. Pitts, 73 Ind. 597; Trolwert v. Decker, 51 Wis. 46; Ryno i). 
 Darby, 20 N. J. Eq. 231; Guinn v. Simes, 61 Mo^SSo; Shippey ■«. East- 
 wood, 9 Ala. 198; Ladd v. Rogers, 11 Allen, 209. But in some of the 
 States, Sunday contracts are voidable only, and may therefore be ratified. 
 Adams v. Gray, 19 Vt. 338; Sayles v. Wellman, 10 E. I. 465; Campbells. 
 Young, 9 Bush, 240; Huhns v. Gates, 92 Ind. 66; Tucker v. West, 29 Ark. 
 386; Smith v. Case, 2 Oreg. 190. See post, §308. 
 
 * Eoby V. West, 4 N. H. 285; Woods v. Armstrong, 54 Ala. 150; Decell 
 V. Lewenthal, 67 Miss. 331; Banchor v. Mansel, 47 Me. 58; Hathaway v. 
 Moran, 44 Me. 67. 
 
 « Ludlow V. Hardy, 38 Mich. 690; Dever v. Corcoran, 3 Allen (N. B.), 
 338. 
 
 4()9 
 
§ 291 ILLEGAL SALES, [CH. XX. 
 
 where the contract of sale is made and performed. If the 
 place of performance is different from the place of contract, 
 the law of the former place governs. Ordinarily, the con- 
 tract of sale is fully performed in the place where the sale 
 was made; and a delivery of goods to a common carrier for 
 transportation to the buyer is such a completion of the sale, 
 as to make its validity depend upon the law of the place 
 where the sale was made. And if valid by that law, it can- 
 not be affected by the law of the place to which the goods 
 are sent, and from which the buyer ordered them.^ But if 
 title does not pass on delivery to the common carrier, be- 
 cause the bill of lading is made out in the name of the 
 seller, and provides for the goods to be delivered to him, 
 instead of to the buyer, ^ or because the sale is conditional 
 upon the right to return the goods, if they do not prove to 
 be satisfactory, in either case the contract is not fully per- 
 formed, until the bill of lading has been indorsed and de- 
 livered to the vendee, or the condition has been performed. 
 In these cases, therefore, the legality of the sale must be 
 determined by the law of the place where the vendee 
 receives the bill of lading or the goods, or he performs the 
 condition.^ It has also been held that the sale is not com- 
 plete on delivery to the common carrier, where the vendor 
 is to pay the freight on the goods,* and where the goods 
 were sent " C. O. D ; " ^ but these conclusions cannot be 
 
 1 Tuttle V. Holland, 43 Vt. 542; Garland v. Lane, 46 N. H. 245; Finch 
 V. Mansfield, 97 Mass. 89; Abberger v. Marrin, 102 Mass. 70; Torrey o. 
 Corliss, 33 Me. 836; McCarty v. Gordon, 16 Kan. 35; Kling v. Fries, 33 
 Mich. 275 ; Frank v. Hoey, 128 Mass. 263 ; Boothby v. Plaisted, 51 N. H. 
 436; Kline v. Baker, 99 Mass. 253; Merchant u. Chapman, 4 Allen, 364; 
 Mack V. Lee, 13 E. I. 298. 
 
 2 See ante, § 95. 
 
 » Wilson V. Stratton, 47 Me. 120; CoUender Co. v. Marshall, 57 Vt. 
 232; Schlesinger v. Stratton, 9 K. I. 578. 
 
 * See Suit v. Woodhall, 113 Mass. 391; Tohnan v. Johnson, 43 Iowa, 
 129. 
 
 » State V. O'Neill, 58 Vt. 140. 
 470 
 
CH. XX. J ILLEGAL SALES. § 292 
 
 considered sound, unless they are supported by the fact that 
 the parties did not intend that the title to the goods should 
 pass until they were actually delivered to the buyer. 
 
 § 292. Effect of partial illegality. — If a sale is made 
 of several articles for one price, and the sale of some of 
 these articles is prohibited, while the sale of the others is 
 legal, the whole sale is tainted by the illegality, and no re- 
 covery can be had on the sales of any of the articles. It 
 is not considered to be consistent with public policy for the 
 courts to undertake the apportionment of the price between 
 the legal and the illegal considerations, and the avoidance 
 of the whole contract is but a merited penalty for engaging 
 in questionable proceedings.^ But if an instrument of in- 
 debtedness, such as a note, is founded upon two or more dis- 
 tinct and severable sales, one of which is illegal, although 
 there are authorities to the contrary,^ the better opinion is, 
 that no action can be maintained on the instrument for the 
 recovery of the legal part : but since the parts of the con- 
 
 ' Holt V. O'Brien, 15 Gray, 311 ; Bligh v. James, 6 Allen, 570; Robin- 
 son V. Bland, 2 Burr. 1077; Scott v. Gilmore, 3 Taunt, 226; Chapman v. 
 Black, 2 B. & Aid. 588; Cruikshanks v. Rose, 5C. &P. 19; Owens d. 
 Forter, 4 C. & P. 367; Craig v. Andrews, 7 Iowa, 17; Taylor v. Pickett, 
 52 Iowa, 467; Quigley v. DufEey, 52 Iowa, 610; Perkins v. Cummings, 2 
 Gray, 258; Brigham v. Potter, 14 Gray, 522; Hoyt ». Macon, 2 Col. 502; 
 Carlton v. Woods, 28 N. H. 292; Coburn v. Odell, 20 N. H. 540; Barnard 
 V. Backhaus, 62 Wis. 593; Gardner v. Maxey, 9 B. Mon. 90; Hyndes v. 
 Hayes, 25 B. Mon. 31; Deering v. Chapman, 22 Me. 488; Averbeck v. " 
 Hall, 14 Bush, 505; Saratoga Bank v. King, 44 N. Y. 87; Woodruff v. 
 Hinman, 11 Vt. 592; Gamble v. Grimes, 2 Ind. 392; Everhart v. Packett, 
 73 Ind. 409 ; Snyder v. Wiley, 33 Mich. 483; Wisner v. Bardwell, 38 Mich. 
 278; Wynne v. Whisenant, 37 Ala. 46; OoTington v. Threadgill, 88 N. C. 
 186; Widoe v. Webb, 20 Ohio St. 431; Wilkins v. Eiley, 47 Miss. 306; 
 Gotten V. McKenzie, 57 Miss. 418; Hyslop v. Clarke, 14 Johns. 465; 
 Clark V. Bicker, 14 N. H. 44; Chandler v. Johnson, 39 Ga. 85; Kidder v. 
 Blake, 45 N. H. 530. 
 
 2 Clopton V. Elkin, 46 Miss. 95. See Guild v. Belcher, 119 Mass. 257; 
 McGuinness v. Bligh, 11 R. I. 94; Bron v. Becnel, 20 La. Ann. 254; s. c. 
 22 La. Ann. 189. 
 
 471 
 
§ 292 ILLEGAL SALES. [CH. XX. 
 
 fiideration are separate and distinct, the illegality of one 
 part cannot affect the right of action on the legal part, 
 which exists independently of the instrument of indebted- 
 fless.i 
 
 It has been held that where the legal part of the consid- 
 eration exceeds in amount the entire instrument of indebt- 
 edness, the illegality of another part of the consideration 
 will not annihilate the instrument.^ And if there are sev- 
 eral, given in the same transaction, or at the same time, 
 and each of them exceeds in amount the illegal considera- 
 ation, the holder may apply the defense to either of the 
 instruments, as he may elect. ^ It would be difficult to f&y 
 to which of them the defense should apply, when both had 
 been assigned, so that they are held by different parties. 
 If only one of them had been assigned, it follows, as a con- 
 sequence of the inequality of equity between the original 
 holder and a subsequent indorsee, and the liability as a 
 guarantor of an indorser, that the original holder should 
 
 1 In Widoe v, Webb, 21 Ohio St. 431, the action was on a note, given 
 in settlement of an account, of which some of the items were for intoxi- 
 cating liquors sold in violation of the law. Scott, C. J. ; " With respect 
 to the items of the plaintiff's account, which were unconnected with the 
 illegal sales, he might well have maintained an action on the original 
 contracts of sale, even after the giving of this note. For being utterly 
 void it discharged none of the just indebtedness of the defendant. But 
 he chose to sue upon the note, which was prima /acie evidence of in- 
 debtedness to the extent of the whole sum promised to be paid, and thus 
 attempted to throw upon defendant the burden of showing how much of 
 it was given upon an illegal consideration, and upon the court the task 
 of separating the sound from the unsound. If this effort should result 
 in his losing what was justly due him, we can but repeat what was said 
 in a similar case: 'It is but a reasonable punishment for his including 
 with his just due that which he had no right to take.'" Eobmsonw. 
 Bland, 2 Burr. 1077; Hanover v. Doane, 12 Wall. 342; Perkins v. Cum- 
 mings, 2 Gray, 258; Brigham v. Potter, 14 Gray, 522; Clark v. Bicker, 14 
 N. H. 44; Carlton v. Bailey, 27 N. H. 234; Carlton ti. Woods, 28 N. H. 
 290; Hart». Macon, 2 Col. 508. 
 
 ' Warren v. Chapman, 105 Mass. 87. 
 
 8 Carradine v. Wilson, 61 Miss. 673. 
 472 
 
CH. XX. J ILLEGAL SALKS. § 293 
 
 have the defense prevail against him. Whether the in- 
 dorsee would have the right to compel such a disposition of 
 the defense so that the obligor may be prevented from set- 
 ting up the defense in the action by the indorsee, depends 
 upon the question, whether the acknowledged right of the 
 original holder to make the election passes by indorsement 
 of one of the instruments to the indorsee. We see no 
 reason why it should not. But where both instruments 
 have been transferred to bona fide purchasers, and the ille- 
 gality of the consideration avoids the instruments, even in 
 the hands of the innocent indorsee,^ the equities of the in- 
 dorsee being equal, it is difficult to say in the absence of 
 adjudication, what would be the ruling principle. 
 
 But whether notes and other instruments of indebtedness 
 are absolutely or only partially void, which are given in part 
 for the price of an illegal sale, it is settled that if the note 
 is declared void in toto, the seller may recover the price 
 of the legal sales, leaving out of his claim the illegal sales 
 which helped to make up the consideration of the note.^ 
 
 § 293. Eiffect of execation of Illegal sales. — If a 
 
 sale is illegal, both parties to the sale participate in the vio- 
 lation of the law; and hence, on grounds of public policy' , 
 the courts will not relieve either party from the effect of 
 executing the sale. If a sale is executed by both or by 
 either party, they will not be restored to their original 
 condition, the seller retaining the price if it is paid, 
 
 1 See Tieaeman Commercial Paper, § 178. 
 
 2 McKnight % l)evUn, 52 N. Y. 299; Gelpcke u. Dubuque, 1 Wall. 
 321; Coburn v. Odell, 30 N. H. 657; Carleton ». Woods, 28 N. H, 290; 
 Towle V. Blake, 38 Me. 528; Thurston v. Percival, 1 Pick. 415; Hanauer 
 V. Gray, 25 Ark. 350; Erie R. E. Co. ■». Union Exp. Co., 35 N. J. L. 240; 
 Lange v. Werk, 2 Ohio St. 619; Goodwin v. Clark, 65 Me. 280; Boyd v. 
 Eaton, 44 Me. 61; Walker v. Lovell, 28 N. H. 138; Foreman v. Ahl, 55 
 Pa. St. 325; Pecker v. Kennison, 28 N. H. 290; Filson o. Hives, 5 Pa. St. 
 452 ; Crookshank v. Eose, 5 C. & P. 19 ; Hlnde v. Gray, 1 Man. & G. 
 195. 
 
 473 
 
§ 294 ILLEGAL SALES. [CH. XX. 
 
 and the buyer retaining the goods if delivered, ^ although, 
 on the ground that the title to the goods cannot pass by a 
 void illegal sale, it would not seem unreasonable, apart 
 from any question of public policy to hold that the seller 
 may replevin the goods which had been illegally sold.^ 
 But whatever may be the correct rule in this respect, the 
 seller could not recover the price for goods delivered in 
 pursuance of an illegal sale. Even assumpsit will not lie 
 for their value. ^ 
 
 § 294. Sales for an unlawful purpose, when Illegal. — 
 
 Where a thing may be put to a lawful, as well as to an un- 
 lawful use, it is only illegal to buy or sell the goods for the 
 unlawful purpose. The seller has a right to sell, and the 
 buver the right to buy, them if they are not intended to be 
 put to the unlawful use. But if they are bought for the pur- 
 pose of violating the law in the use or further sale of them, 
 the contract of sale is clearly illegal, so far as the buyer is 
 concerned, and he would be denied all right of action on 
 the contract, should the seller refuse to execute the sale.* 
 
 1 Horton ». Bufflngton, 105 Mass. 399; Moore o. Murdoch, 26 Cal. 
 5U; Shuman v. Shuman, 27 Pa. St. 90; Chestnut o. Harbaugh, 78 Pa. 
 St. 473; King v. Green, 6 Allen, 139; Johnson v. Willis, 7 Gray, 164; 
 Kinney v. McDermott, 55 Iowa, 674; Ellis v. Hammond, 67 Ga. 179; 
 Greene v. Godfrey, 44 Me. 25; Block v. McMurray, 56 Miss. 217; Meyers 
 V. Meinrath, 101 Mass. 366. 
 
 2 Magee v. Scott, 9 Gush. 148; Tucker b. Mowrey, 12 Mich. 378. 
 And see Winfleld v. Dodge, 45 Mich. 355. 
 
 3 O'Donnell v. Sweeney, 5 Ala. 467; Pike v. King, 16 Iowa, 49; 
 Meader v. White, 66 Me. 90; Trolwert v. Decker, 51 Wis. 46; Tucker 
 V. West, 29 Ark. 386; Finn v. Donahue, 35 Conn. 216; Adams ». Ham- 
 mell, 2 Dougl. 73; Foreman u. Ahl, 55 Pa. St. 325; Day ». McAllister, 
 15 Gray, 433; Pope v. Linn, 50 Me. 83; Vinz v. Beatty, 61 Wis. 645; 
 Reeves v. Butcher, 31 N. J. L. 224; Kountz v. P^ice, 40 Miss. 341; Cat- 
 lett«. Trustees, 62 Ind. 365; Thompson*. Williams, 58 N. H. 248; 
 Parker v. Pitts, 73 111. 597; Ryno v. Darby, 20 N. J. Eq. 231; Guinn v. 
 Simes, 61 Mo. 336; Shippey v. Eastwood, 9 Ala. 198; Ladd v. Rogers, 
 11 Allen, 209. 
 
 1 2 Schouler's Personal Prop,, § 617. See Pringle e. Corporation 
 474 
 
CH. XX. J ILLEGAL SALES. § 294 
 
 But the same contract may be binding on the buyer, if the 
 goods could have been put to a lawful use, and the seller 
 could not be considered under the circumstances of the par- 
 ticular case as a particeps criminis. It is very clear that 
 the seller cannot recover on the contract of sale, if he in 
 any way participated in the unlawful act of the buyer by 
 packing and marking the goods in such a way as to enable 
 the buyer more successfully to put the goods to an unlaw- 
 ful use. For example, where the vendor of intoxicating 
 liquors, in a sale of them to one who lives in a State where 
 such sale is illegal and who intends to sell them in the latter 
 State in violation of the law, disguises by packing and 
 marking the character of the goods so that the buyer might 
 the better succeed in selling them without detection, the sale 
 is illegal, and the vendor cannot recover the price. ^ And 
 the same conclusion was reached, where American sardines 
 were pujt up in boxes with French labels, in order to enable 
 the retail dealer to sell them as French sardines.^ The 
 slightest aid or participation in the unlawful use of the 
 goods by the buyer will incriminate the seller.^ And some 
 of the authorities hold that the sale will be illeffal as to the 
 seller, if it is made by him "with the express purpose " 
 or " with the intent " to enable the vendee to sell or use 
 them in violation of the law, although the seller does not 
 aid the buyer in his violation of the law, except by fur- 
 
 of Napanee, 43 Up. Can. Q. B. 285; Cowan i;. Melbourne, L. R. 2 Ex. 
 230. 
 
 i Shifi V. Johnson, 57 N. H. *75; Fisher v. Lord, 63 N. H. 614; Hull 
 u. Buggies, 56 N. Y. 425; Telneman v. Sachs, 33 Kan. 621; Hill v. Speer, 
 60 N. H. 253; Holman v. Johnson, Cowp. 348. 
 
 2 Materne ». Horwitz, 18 Jones & Sp. 41; s. c. 101 N. Y. 469. See 
 Honneger v. Wettstein, 15 J. & S. 125. 
 
 » Hubbell V. Flint, 13 Gray, 277; Gaylord v. Soragen, 32 Vt. 110; 
 Aiten v. Blaisdell, 41 Vt. 656; Arnot v. Pittston Coal Co., 68 N. Y. 558; 
 Mclntire v. Parks, 3 Met. 207; Smith v. Godfrey, 28 N. H. 379; Banchor 
 V. Mansell, 47 Me. 58; Orcutt u. Nelson, 67 Mass. 536; Tracy v. Tal- 
 madge, 14 N. Y. 162; President, &c., of Merchants' Bank v. Spaulding, 
 12 Barb. 302; Kottwitz v. Alexander 11 Cush. 222. 
 
 475 
 
§ 294 ILLEGAL SALES. [CH. XX. 
 
 nishing him with the goods. ^ But the purpose or intent to 
 enable the buyer to violate the law cannot be established 
 except by the fact that the goods sold cannot be reasonably 
 used for any other but an unlawful purpose, as where one 
 manufactures and sells furniture which is suitable only for 
 use in a bar-room or gambling house, ^ or where he actively 
 aids the buyer in the accomplishment of the unlawful pur- 
 pose. In the absence of such facts from the case, it is 
 diflScult to understand how the seller's purpose or intent to 
 assist the buyer in his violation of the law can be estab- 
 lished. This would ceitainly operate against the presump- 
 tion to which the seller is entitled, that he intended to sell 
 the goods for the lawful purpose, and not for the unlawful 
 purpose. 
 
 There is also a tendency on the part of some of the courts 
 to hold that if the seller sells when he knows that the buyer 
 intends to commit some felony or heinous crime with it, 
 as in the purchase of poisonous drugs for the purpose of 
 killing some one with it ^ or the purchase of horses to be 
 used in the service of rebels against the government,* and 
 the like, he cannot recover the price.^ But, notwithstand- 
 ing these apparent and actual exceptions, the general rule 
 is accepted throughout the United States that mere knowl- 
 edge of the seller that the buyer intends to put the goods 
 to an unlawful use, where the goods are likewise susceptible 
 of a lawful use, will not make the sale illegal, and conse- 
 quently prevent the recovery of the price of the goods. 
 
 1 White V. Buss, 3 Cush. 448; Galligan v. Fannan, 7 Allen, 256; Buck- 
 man V. Bryan, 3 Denlo, 340; Webster v. Munger, 8 Gray, 684; Davis v. 
 Brownson, 6 Iowa, 410; Distilling Co. v. Nutt, 34 Kan. 724; Territt v. 
 Bartlett, 21 Vt. 184; McConike v. McMann, 27 Vt. 95. 
 
 " See Tatum v. Kelly, 25 Ark. 201, lor a general discussion of this 
 question. 
 
 ^ Langston v. Ilughes, I Maule & S. 593. 
 
 * Martin v. McMillan, 65 N. C. 199; Hanauer v. Doane, 12 Wall. 342, 
 347. See McGavock v. Puryear, 6 Cold. 34. 
 
 ' Pearce v. Brooks, L. R. 1 Ex. 212. 
 476 
 
CH. XX.] ILLEGAL SALES. § 296 
 
 The sale will be illegal as to the buyer, but legal as to the 
 seller.^ 
 
 § 295. Sales illegal at common law. — Sales are illegal 
 at common law because the subject-matter is intended to 
 be used for some criminal or immoral purpose ; or because 
 the sale itself is illegal for being against public policy. 
 Some examples of illegal sales, according to the common 
 law, will be stated and explained somewhat in detail in sub- 
 sequent paragraphs.^ But inasmuch as most of the sales, 
 which are illegal at common law, are made so because of 
 the illegality of the consideration for the sale, many of the 
 examples are found to be common to many sorts of con- 
 tracts which are invalidated on account of the illegality of 
 (he consideration, and hence some of the cited cases will 
 be found to come from other forms of contract ; but they 
 illustrate the principle just as well. 
 
 § 296. Compounding' of crimes and misdemeanors as 
 a consideration. — Since the elBcient enforcement of the 
 criminal law is highly essential to the public welfare, any 
 
 1 Bishop V. Honey, 34 Tex. 245; Cheney v. Duke, 10 G. & J. 11; Green 
 V. Collins, 3 Clifi. 494; Molntyre v. Parks, 3 Met. 207; Smith v. Godfrey, 
 28 N. H. 379; Wallace v. Lark, 12 S. C. 578; Tracy v. Talmage, 14 N. Y. 
 162; Tuttle v. Holland, 43 Vt. 642; Webber v. Donnelly, 33 Mich. 469; 
 McKinney u. Andrews, 41 Tex. 363; Curran v. Downs, 3 Mo. App. 468; 
 Hedges v. Wallace, 2 Bush, 442 ; Bickelly v. Sheets, 24 Ind. 1 ; Jameson 
 V. Gregory, 4 Met. (Ky.) 363; Tedderu. Odom, 2 Heisk. 68; 4 Heisk. 668; 
 Michael v. Bacon, 49 Mo. 474; Hill v. Spear, 50 N. H. 253; McGavock». 
 Puryear, 6 Coldw. 34; Sortwell v. Hughes, 1 Curtis, 245; Kreiss v. Selig- 
 man, 8 Barb. 439; Mahoodu. Tealza, 26 La. Ann. 108; Hubbard t). Moore, 
 24 La, Ann. 591; Feineman v.. Sacks, 33 Kan. 651; Holman v. Johnson, 1 
 Cowp. 341; Gaylord v. Soragen, 32 Vt. 110. But see Territt v. Bartlett, 
 21 Vt. 184; Eoquemore v. Alloway, 33 Tex. 461; Milner ■». Patton, 49 Ala. 
 423; States. Blakeraan, 49 Mo. 604; Alexander v. Lewis, 47 Tex. 481; 
 Eailey v. Gay, 20 La. Ann. 158 ; McMurtry v. Ramsey, 25 Ark. 238, 349, 
 376; Lewis v. Latham, 74 N. C. 283; Steele v. Curie, 4 Dana, 385; Mc- 
 Conihe v. McManny, 27 Vt. 95. 
 
 2 See post, §§ 296-305. 
 
 477 
 
§ 296 ILLEGAL SALES. [CH. XX. 
 
 commercial instrument given in consideration of dismissing 
 a criminal prosecution is illegal and void. This is called 
 compounding of crimes, and is an offense of the most serious 
 nature. Such an act cannot be a valid consideration for 
 any kind of contract.^ A promise not to institute a prose- 
 cution is as illegal a consideration as the dismissal of a 
 prosecution already instituted.^ And so, also, is an agree- 
 ment "to use all legal and proper endeavor" to have a 
 prosecution dismissed.' Compoundmg the inferior misde- 
 meanors is illegal as well as compounding felonies.* 
 
 But where the agreement is to suppress proceedings only 
 criminal in form, and involving no criminal offense, it is 
 not illegal.^ It has also been held that the promise to dis- 
 continue bastardy proceedings, a guas^-criminal process, is 
 a good legal consideration for a contract.* It is also not 
 
 1 Edgecombe v. Rodd, 5 East, 294; Galton v. Taylor, 7 T. B. 475; Brett 
 V. Tomlinson, 16 East, 293; Elworthy v. Bird, 2 Sim. & Stu. 372; Clubb 
 V. Hutson, 18 C. B. (n. s) 414; Johnson i;. Ogillry, 3P. Wms.272; Hard- 
 ing V. Cooper, 1 Stark. 467; Wallace?;. Hardacre, 1 Camp. 45; Kirk v. 
 Strickwood, 4 B. & Ad. 421 ; Commonwealth v. Pease, 16 Mass. 91 ; Clark 
 ■u. Pomeroy, 4 Allen, 534; Hinesborough v. Sumner, 9 Vt. 23; Hinds v. 
 Chamberlain, 6 N. H. 225; Clark v. Bicker, 14 N. H. 44; Parrar v. Davis, 
 53 Vt. 597; Murphy v. Bottomer, 40 Mo. 67; Sumner v. Summers, 54 Mo. 
 340; Breathwit o. Eogers, 32 Ark. 758; Collier v. Waugh, 64 Ind. ioG; 
 Chandler v. Johnson, 39 Ga. 85; Kimbrough v. Lane, 11 Bush, 656; Cain 
 V. Southern Express, 1 Baxt. 315; Wynne v. Whisenant, 37 Ala. 46; 
 Commonwealth v. Johnson, 3 Cush. 454; Porter v. Havens, 37 Barb. 343; 
 Steuben Co. Bank v. Matthewson, 5 Hill, 249 ; Vincent v. Groom, 1 Yerg. 
 430; Bell v. Wood, 1 Bay, 249; Merrill v. Carr, 60 If. H. 114; Doyle v. 
 Carroll, 28 U. C. C. P. 218; Boll v. Bagnet, 4 Ohio, 400. 
 
 2 Gardner v. Maxey, 9 B. Mon. 90. 
 
 3 Averbeck v. Hall, 14 Bush, 505; Rickets v. Harvey, 78 Ind. 152; 
 Shenk v. Phelps, 6 Bradw. 612. 
 
 * Jones V. Rice, 16 Pick. 440. 
 
 s Soule V. Bonny, 37 Me. 128. 
 
 6 Hook V. Pratt, 78 N. Y. 371; Bunn b. Winthrop, 1 Johns. Ch. 329; 
 Kniglit V. Priest, 2 Vt. 507; Cutter v. Collins, 12 Cush. 233 ; Hays v. Mc- 
 Parlan, 32 Ga. 699; Jackson v. Einney, 33 Ga. 512; Merritt v. Fleming, 42 
 Ala. 234; Maxwell v. Campbell, 8 Ohio St. 265; Haven ». Hobbs, 1 Vt. 
 238; Burger v. Strangham, 7 J. J. Marsh 683; Bobinson v. Crenshaw, 2 
 478 
 
CH. XX.] ILLEGAL SALES. § 297 
 
 illegal to give property ia settlement of any civil action in 
 tort for damages. 1 
 
 Of the same character as the compounding of crimes, is 
 the prevention of a conviction by the suppression of evi- 
 dence. Ag- cements to suppress evidence are illegal, and 
 a sale or other contract made in consideration of such an 
 agreement is invalid.^ 
 
 It is illegal to agree to dismiss a prosecution for embez- 
 zlement or larceny, even when the amount paid or promised 
 is the same as that which had been taken. The private 
 wrong, involved in the act of larceny or embezzlement, is 
 lost sight of in the greater wrong against the public.^ But 
 where the money is promised to be paid, without any stip- 
 ulations that the prosecution was to be dismissed, and 
 without any promise of clemency of any kind, the agree- 
 ment is legal and binding, notwithstanding the prosecution 
 was subsequently dismissed.* 
 
 § 297. Contracts with alien enemies and in aid of re- 
 bellion. — All contracts with alien enemies are void, and it 
 follows, as a matter of course, that any commercial instru- 
 
 Stew. & P. 176; Hicks v. Gregory, 8 C. B. 378; Jennings v. Brown, 9 M. 
 & "W. 496. 
 
 1 Price V. Summers, 2 South. 578. See also Drage v. Iberson, 2 Esp. 
 643; Coppock v. Bower, 4 M. & W. 361 ; Kneeshaw v. Collier, 30 U. C. C. 
 P. 265; 'Walbriclge v. Arnold, 21 Conn. 425; Wliitenack u. Ten Eyck, 2 
 Green Ch. 249; Prescott v. Ward, 10 Allen, 203; Lyons v. Stephens, 45 
 Ga. 141; Jones v. Kittenhouse, 87 Ind. 348. 
 
 " Nerot V. Wallace, 3 T. R. 17; Fallows v. Taylor, 7 T. R. 475; Edge- 
 come V. Rodd, 6 East, 294; Swan v. Chandler, 8 B. Mon. 97; Gardner v. 
 Maxey, 9 B. Mon. 90; Hoyt v. Macon, 2 Col. 502. 
 
 3 Taylor v. Jacques, 106 Mass. 291 ; Hinesborough v. Sumner, 9 Vt. 23; 
 Sumner v. Summers, 54 Mo. 340; Godwin v. Crowell, 56 Ga. 666; Bucki). 
 Frist Nat. Bank, 27 Mich. 292. But see, contra, Bibb v. Hitchcock, 49 
 Ala. 468; Growler v. Reed, 80 Ind. 1. It has also been held that a 
 threatened prosecution is a sufficient consideration for the indorsement as 
 surety by a third person. JafErey v. Brown, 74 N. Y. 393. 
 
 * Von Windisch v. Klaus, 46 Conn. 433; Cohoes v. Cropsy, 55 N. Y. 
 686; Armstrong ». Southern Express Co., 4 Baxt. 376, 
 
 479 
 
§ 298 ILLEGAL SALES. [CH. XX. 
 
 ment given in liquidation of such a contract would be 
 founded upon an illegal consideration. 
 
 For the same reasons, all contracts in aid of a rebellion 
 against the government are illegal, and commercial paper 
 given in settlement of such contracts is void. This rule 
 has been followed in a number of cases, in which aid had 
 in various ways been given to the Confederacy of the 
 Southern States in their operations against the government 
 of the United States. Commercial paper given in consid- 
 eration of that aid was declared to be void.^ But the fact 
 that a note was given by a Confederate officer for a horse, 
 apparently for army use, but not avowedly so, does not 
 make the note illegal. ^ 
 
 § 298. Bribery. — All forms of bribery of public officials 
 are of course illegal, and commercial instruments, made for 
 the purpose of influencing any one in the performauce of a 
 public duty, are void on account of the illegality of the 
 consideration. It is a sale of official influence or power, 
 and is of course illegal. This is the case, whether the 
 paper be given to secure a public office by influencing one 
 who has the power to appoint or elect,^ or to secure some 
 
 1 Hanauer v. Doane, 12 Wall, 342; Critcher?;. Holloway, 64N.C. 526; 
 Kingsbury v. Gooch, 64 N. C. 528; Kingsbury v. Fleming, 66 N. C. 524; 
 Martin v. McMillan, 63 N. C. 486; Taturav. Kelly, 25 Ark. 209; McMurtry 
 V. Ramsey, 25 Ark. 350; Brooker v. Robbins, 26 Ark. 660; Chancely e. 
 Bailey, 37 Ga. 532; Pickens i). Eskridge, 42 Miss. 114; Stewart ». Bosley, 
 19 La. Ann. 439; Wright v. Stacey, 19 La. Ann. 449; Heidenreich v. 
 Leonard, 21 La. Ann. 628. 
 
 2 Thedford v. McClintock, 47 Ala. 647. 
 
 "^ Parsons v. Thompson, 1 H. Bl. 322; Laying v. Paine, Wills. 571; 
 Balmer v. Bate, 2 Bred. & Bing. 673 ; Harrington v. Kloprogge, 2 Brod. & 
 Bing. 678 ; Blackford v. Preston, 8 T. R. 93 ; Stackpole v. Earle, 2 Wills. 
 133; Richardson v. Mellish, 2 Bing. 229; s. c. 9 Moore, 435; Ferris v. 
 Adams, 23 Vt. 136 ; Nichols v. Mudgett, 32 Vt. 546 ; Martin v. Wade, 37 
 Cal. 168; King ». Pitt, 1 W. Bl. 380; Allen v. Hearn, 1 T. R. 66; Lulston 
 V. Norton, 3 Burr. 1235; Webb v. Smith, 4 Bing N. C. 373; Swayze v. 
 Hull, 3 Halst. 54; Commissioners of Johnson Co. v. Milliken, 7 Blackf. 
 301. Contracts in relation to the procurement of offices in the service of 
 480 
 
CII. XX. J ILLEGAL SALES. § 299 
 
 favor of the officer, or to influence him in other ways, to 
 the benefit of the promisor or of a third person, in the dis- 
 charge of his official duties.^ It is illegal to promise exlra 
 compensation to a public officer, to induce extra diligence 
 in the performance of his duties.^ But, although it is illegal 
 to promise to indemnify an officer against damage from his 
 unlawful acts,^ it is permissible to indemnify an officer 
 against loss where he in good faith does what he thinks he 
 has a right to do, but about wiiich he might be mistaiien. 
 Bonds of indemnity of this kind are very common.* 
 
 § 299. Lobbyingr. — Although "lobbying," when done 
 in a dignified and unobjectionable manner, unaccompanied 
 by any form of bribery, is not illegal, yet since there is so 
 much danger of the lobbyist using improper means to in- 
 fluence the legislators, the services of a lobbyist are never 
 held to be a legal consideration for a contract.' 
 
 a private corporation are considered to be on a different basis, and public 
 policy does not require them to be declared illegal. Peck v. Requa, 18 
 Gray, 407. But it has been held that an administrator of another's 
 estate is a public officer in this sense, and a note given for procuring 
 one's appointment as administrator is void. Porter v. Jones, 52 Mo. 399. 
 Of the same character are commercial obligations given to induce a pub- 
 lic ofHcer to resign and exert his influence in favor of the obligor's ap- 
 pointment to the oflBce, Meacham v. Dow, 32 Vt. 721 ; or to induce one 
 candidate to vrithdraw in favor of another, Ham v. Smith, 87 Pa. St. 63. 
 See also Gray v. Hook, i N. Y. 449 ; Martin «. Wade, 37 Cal. 168. 
 
 ^ Bell V. Quin, 2 Sandf. 146; Tool Company v. -Norris, 2 Wall. 45; 
 Alston V. Atlay, 6 Nev. & M. 686 ; Denny v. Lincoln, 5 Mass. 385; Dealin 
 V. Brady, 36 N. Y. 531; Goodale v. Holdridge, 2 Johns. 193; Wheeler 
 V. Bailey, 13 Johns. 366; Bills ». Comstock, 12 Met. 468; Totteridge i;. 
 Mackally, Sir Wm. Jones, 341; Rogers v. Reeves, 1 T. R. 418; Samuel v. 
 Evans, 2 T. R. 569; Watson v. Fetcher, 8 B. & C. 25; Ashley v. Dillon, 
 19 Mo. 619. 
 
 2 Hatch V. Mann, 15 Wend. 44. 
 
 3 10 Co. 102; Ye.lv. 197; Cro. Eliz. 199. 
 
 * Cro. Jac. 652; 1 Ld. Raym. 279. But an indemnity bond cannot be 
 required by an officer where the performance of the duty is obligatory. 
 Dudley v. Butler, 10 N. H. 281. 
 
 6 Marshall v. Bait. & 0. R, R. Co.^ 16 How. 314; Triss r. Child, 21 
 
 31 481 
 
^ 30i iLLteGAL SALES. [CH. XX. 
 
 § 300. Sales of public office and private recommenda- 
 tions. — For the same reasons, the sale of a public office, or 
 of a share in its emoluments, is held to be illegal, as tend- 
 ing to prejudice the public interests.^ But it has been held 
 in Vermont that certain offices were under a statute made 
 salable.^ 
 
 On the same general grounds of public policy, a contract 
 for the sale of a recommendation of a private contract is 
 illegal, and no recovery can be had on it.* 
 
 § 301. Wagers. — At common law, wagers were not 
 necessarily illegal, and those which were held to be legal 
 would be a sufficient consideration for a contract.* If 
 the subject-matter of the wager was harmless and did 
 not in any manner offend public policy, it was legal.' But 
 if the wager has reference to the happening or doing of 
 some act which is illegal or against good morals, the 
 
 Wall. 441; Harris v. Eoof, 10 Barb. 489; Rose v. Truax, 21 Barb. 361; 
 Clippinger v. Hepbaugh, 6 Watts & S. 315. 
 
 1 Spencer v. Jones, 6 Gray, 502; Ferris v. Adams, 23 Vt. 136; Pilson 
 V. Hlnes, 5 Pa. St. 452; Eddy v. Capron, 4 E. I. 394; Gray v. Hook, 4 N. 
 Y. 449; Hunter v. Nolf, 71 Pa. St. 282; Onton v. Eodes, 3 A. K. Marsh. 
 432; Hamu. Smith, 87 fa. St. 63; Bowess v. Bowess, 26 Pa. St. 74; Cun- 
 ningham ?>. Cunningham, 18 B. Mon. 24; Meredith a. hadd, 2 N. H. 518; 
 Hager v. Catlin, 18 Hun, 448 ; Davison v. Seymour, 1 Bosw. 88. 
 
 2 See Thetford v. Hnbbard, 22 Vt. 440. 
 
 3 Holcomb V. Weaver, 136 Mass. 265; Bollman v. Loomls, 41 Conn. 
 581; WyburdB. Stanton, 4 Esp. 179. 
 
 * Daniel's Negot. Inst. 196; Randolpli Commercial Paper, § 510; Good 
 V. Elliott, 3 T. R. 693 ; Da Costa v. Jones, Cowp. 734. See Tiedeman's 
 Limitations of Police Power, § 99. 
 
 ■ * Thus It was lawful to bet that A. has purchased a wagon of B., 
 Good V. Elliott, 3T. R. 693; or to bet on a cricket match or on any other 
 lawful race, Walpole u. Saunders, 16 E. C. L. R. 276; Crump v. Secrest, 
 9 Tex. 200; McAlester v. Iladen, 2 Campb. 438. See also, generally, in 
 support of this doctrine, Sherborne v. Colebach, 2 Vent. 175; Hussey ■». 
 Crickell, 3 Campb. 168; Grant v. Hamilton, 3 M. L. 100; Cousins v. 
 Mantes, 3 Taunt. 515; Johnson v. Lousley, 12 C. B. 468; Dalby ». India 
 Life Ins. Co., 15 C. B. 365; Bampden v Walsh, L. E. 12 P. D. 192. 
 482 
 
CH. XX.] ILLEGAL SALES. § 301 
 
 wager is void and will not be enforced. ^ In no part of 
 the civilized world are contracts for the insurance of life or 
 property against accidental destruction held to be invalid. 
 The English doctrine is clearly sustained, as a part of 
 the common law, by the decision of some of the American 
 courts.^ But, except in the matter of insurance contracts, 
 all wager contracts are declared to be invalid in Main, Mas- 
 sachusetts, New Hampshire, Vermont and Pennsylvania.' 
 Tn many of the States and in England the common law is 
 changed by statutes which prohibit all wager contracts.* 
 
 1 Thus wagers are void, which rest upon the result of an illegal game, 
 Brown V. Leeson, 2 H. Bl. 43; Hunt v. Bell, 7 J. B. Moore, 212; Egerton 
 V. Furzmau, Ky. & Mo. 213; Squires v. Whisken, 3 Campb. 140; which 
 involve the abstinence from marriage, Huntley v. Rice, 10 East, 22; 
 which refer to the expected birth of an illegitimate child, Ditchburn v. 
 Goldsmith, 4 Campb. 152; to the sex of a person, and the commission of 
 adultery, Da Costa v. Jones, Cowp. 729; wagers on the result of public 
 elections, Beeley v. Wingfleld, 11 East, 46; Ku^t v. Gott, 9 Cow. 169; 
 Denny v. Elkins, 4 Cfanch C. C. 161; Brush v. Keeler, 5 "Wend. 250; 
 Pilkinton v. Green, 2 B. & P. 151; Lockhart v. HuUinger, 2 Bradw. 465; 
 Gordon v. Casey, 23 111. 70; Guyman v. Burlingame, 36 111. 201; Gregory 
 ■u. King, 58 111. 169 ; on the result of a war, Lacaussade v. White, 7 T. R. 
 535; Allen v. Hearne, 1 T. R. 57; or of a criminal prosecution, Evans v. 
 Jones, 5 M. & W. 77; and so, likewise, wagers of all binds which have 
 an injurious effect upon the feelings or interests of a third person. Da 
 Costa V. Jones, Cowp. 729; Eastbrook v. Scott, 3 Ves. 456; Eltham v. 
 Kingsham, 1 B. & Aid, 683; Harvey u. Gibbons, 2 Lev. 161; Gilberts. 
 Sykes, 16 East, 150. 
 
 2 Bunn V. Kikes, 4 Johns. 426; Campbell o. Richardson, 10 Johns. 
 406; Dewees v. Miller, 5 Harr. 347; Trenton Ins. Co. v. Johnson, 4 Zabr. 
 576; Dunman v. Strother, I Tex. 89; Wheeler v. Friend, 22 Tex. 683; 
 Monroe v. Smelley, 25 Tex. 586; Grant v. Hamilton, 3 McLean, 100 (U. S. 
 C. C); Smith v. Smith, 21 111. 244; Richardson v. Kelley, 85 111. 491; 
 Petillon V. Hippie, 90 111. 420; Carrier v. Brannan, 3 Cal. 328; Johnson v. 
 Hall, 6 Cal. 359 ; Johnson v. Russell, 37 Cal. 670. 
 
 3 See Lewis v. Littlefleld, 15 Me. 233; McDonough v. Webster, 68 Me. 
 530; Gilmore v. Woodcock, 69 Me. 118; Babcock ». Thompson, 3 Pick. 
 446; Ball v. Gilbert, 12 Met. 399; Sampson v. Shaw, 101 Mass. 150; Per- 
 kins u. Eaton, 3N. H. 152; Clarke). Gibson, 12 N. H. 386; Winchester;). 
 Nutter, 52 N. H. 507; CoUamer v. Day, 2 Vt. 144; Tarlton v. Baker, 18 
 Vt. 9 ; Phillips v. Ives, 1 Rawle, 36 ; Brua's Appeal, 56 Pa. St. 294. 
 
 * Such statutes are to be found in Vermont, New York, New Jersey, 
 
 483 
 
§ 302 Illegal sales. [ch. xx. 
 
 Inasmuch as insurance contracts serve a useful purpose, 
 they are excepted from the operation of these statutes, 
 either expressly, or by judicial construction. But in order 
 that they be valid contracts, insurance policies must be 
 taken out by some one bearing a lawful interest in the prop- 
 erty or life that is insured. A policy taken out by one 
 having no such interest, is an illegal wager, and therefore 
 void.'^ 
 
 Like every other illegal transaction, the courts will have 
 nothing to do with the subject-matter of a wager contract, 
 unless, as a penalty, the statute provides for an action to 
 compel a return of the money won and paid on a wager 
 contract. A stakeholder can do what he pleases with the 
 stakes, and no action will be entertained against him.- 
 The only person who can mamtain an action for the stakes 
 or money paid on a bet, is the creditor of the person who 
 paid it, and he only, when his debtor is insolvent.^ 
 
 § 302. Option fsales, when illegal.* — For many years, 
 in all parts of the world, a species of commercial gambling 
 has been devised and developed, and which is still increas- 
 ing in proportions. Large bodies of men in our commer- 
 cial centers congregate daily in the exchanges for the pur- 
 pose of betting on the rise and fall in the price of stocks, 
 cotton and produce of all kinds, and lately, also, of real 
 estate. The business is disguised under the name of specu- 
 lation, but it is in nothing different from the wager on the 
 result of some game of cards. The card player bets that 
 
 Tennessee, New Hampshire, Virginia, West Virginia, Wisconsin, Mis- 
 souri, Illinois, Ohio, Iowa, and probably in other States. 
 
 1 Byles on Bills, 144; Nantes v. Thompson, 2 East, 285; Kent v. Bird, 
 Cowp. S83; Roebuck v. Hamerton, Cowp. 737; Halford u. Kymer, 10 B. 
 & C. 724 ; Morgan v. Pebrer, i Scott, 230. 
 
 ' Rustc. Gott, 3 Cow. 169. 
 
 3 Claris; v. Gibson, 12 N. H. 386. 
 
 < See Tiedeman's Police Power, § 99b, for a general discussion of 
 these contracts from the standpoint of constitutional law. 
 484 
 
CH, XX. J ILLEGAL SALES. § 302 
 
 he will win the game. The merchant, dealing in "futures," 
 bets that the price of a commodity will, at a future day, 
 be a certain sum, more or less than the ruling market 
 price. In neither case does the result add anytliing to the 
 world's wealth; there is only an exchange of the owner- 
 ship of property without any corresponding benefit to the 
 former owner. 
 
 But in this class of cases, it is difficult to discover the 
 wrongful element in the prohibited transactions, and in dis- 
 tinsuishing them from legitimate trading. The so-called 
 
 DO O O 
 
 " option contracts " are in form contracts for the sale or 
 purchase of commercial commodities for future delivery, 
 at a certain price, with the option to one or both of the 
 parties in settlement of the contract to pay the difference 
 between the contract price and the price ruling on the day 
 of delivery, the difference to be paid to the seller, if the 
 market price is lower than the contract price, and to the 
 purchaser, if the market price is higher. Such a contract 
 has three striking elements : First, it is a contract for future 
 delivery; secondly, the delivery is conditional upon the 
 will of one or both of the parties; and thirdly, the pay- 
 .ment of differences in prices, in the event that the right of 
 refusal is exercised by either party. If the common-law 
 offense of regrating were still recognized in the criminal 
 law, all contracts for future delivery may be open to 
 serious objection. ^ But that, doctrine of the common 
 law is repudiated, and it may now be considered as definitely 
 settled that a contract for future delivery of goods is not 
 for that reason void. If they infringe the law, it must be 
 for some other reason than that the contract stipulates for 
 a future delivery. This is not only true when the vendor 
 has the goods in his possession at the time of sale, but also 
 when he expects to buy them for future delivery. Lord 
 Tenterden claimed that in the latter case the contract was a 
 
 ' See Tiedeman's Police Power, § 95. 
 
 485 
 
§ 302 ILLEGAL SALES, [CH. XX. 
 
 wager on the fature price of the commodity, and for that 
 reason should not be enforced.^ But the position hero 
 taken has since been repudiated by the English courts, on 
 the ground that it is not a wager, and if a wager, not one 
 which tends to injure the public. ^ The latter opinion is 
 generally followed in the United States, and it may be 
 stated, as the American rule, that bona fide contracts for 
 future delivery of goods are not invalid, because at the 
 time of sale the vendor has not in his actual or potential 
 possession the goods which he has agreed to sell.'' 
 
 1 " I have always thought, and shall continue to think until I am told 
 toy the House ol Lords that I am wrong, that if a man sells goods to be 
 delivered on a future day, and neither has the goods at the time, nor has 
 entered into any prior contract to buy them, nor has any reasonable ex- 
 pectation of receiving by assignment, but means to go into the marliet 
 and to buy the goods which he has contracted to deliver, he cannot main- 
 tain an action on such contract. Such a contract amounts, on the part 
 of the vendor, to a wager on the price of the commodity, and is attended 
 with the most mischievous consequences." Lord Tenterden in Bryan 
 V. Lewis, Reg. & Moody, 385c. See also Longmer v. Smith, 1 B. & C. 1. 
 
 2 " I have always entertained considerable doubt and suspicion as to 
 the correctness of Lord Tenterdeu's doctrine in Bryan v. Lewis. It ex- 
 cited a good deal of surprise in my mind at the time, and when exam- 
 ined, I think it is untenable. I ciinnot see what principle of law is at all 
 affected by a man's being allowed to contract for a sale of goods, of 
 wliich he has not possession at the time of tlie bargain, and has no 
 reasonable expectation of receiving. Such a, contract does not amount 
 to a wager, inasmuch as both the contracting parties know that the 
 goods are not in the vendor's possession; and even if it were a wager, 
 it is not illegal, because it has no necessary tendency to injure third 
 parties." Baron Parke in Hibblewhite v. McMorine, 5 M. & W. 58. See 
 Mortimer v. McCallan, 6 M. & W. 58; Wells v. Porter, 3 Scott, 141. 
 
 3 Head v. Goodwin, 37 Me. 181; Rumsey v. Berry, 65 Me. 570; Lewis 
 u. Lyman, 22 Pick. 437; Thrall v. Hill, HO Mass. 328; Heald v. Builders' 
 Ins. Co., Ill Mass. 38; Smith ». Atkins, 18 Vt. 4C1; Noyes u. Spaulding, 
 27 Vt. 420; Hull ii. Hull, 48 Conn. 250; Hauton v. Small, 8 Sandf. 230; 
 Currie ». "White, 45 N. Y. 822; Bigelow v. Benedict, 70 N. Y. 202; Bina's 
 Appeal, 55 Pa. St. 294; Brown v. Speyer, 20 Graft. 309; Phillips v. Oc- 
 mulgee Mills, 65 Ga. 633; Noyes v. Jenkens, 55 Ga. 586; Townville ». 
 Casey, 1 Murphy, 389; Whitehead v. Root, 2 Met. (Ky.) 584; McCarty 
 D.Blevins, 13 Tenn. 195; Wilson v. Wilson, 37 Mo. 1; Logan v. Musick, 
 81 111.415; Pixley u. Boynton, 79 111. 351 ; Pickering t). Case, 79 111. 329 ; 
 
 486 
 
CH. XX.] ILLEGAL SALES. § 302 
 
 It is also held to be an objectiouable feature in such con- 
 tracts, that the vendee has no expectation of receiving the 
 goods purchased into his actual possession, but intends to 
 resell thera before the delivery of the possession to him.^ 
 To quote the words of the Kentucky court, " sales for 
 future delivery have long been regarded and hold to be 
 indispensable to modern commerce, and as long as they 
 continue to be held valid, one who buys for future delivery 
 has as much right to sell as any other person, and there can- 
 not, in the very nature of things, be any valid reason why 
 one who buys for future delivery may not resolve, before 
 making the purchase, that he will resell before the day of 
 delivery, and especially when, by the rules of trade, and the 
 terms of his contract, the person to whom he sells will be 
 bound to receive the goods from the original seller, and pay 
 the contract price." ^ Nor is a contract necessarily hurt- 
 ful to the public welfare, which provides on payment of a 
 valuable consideration that one at^a future day shall have 
 the right to buy certain property or sell other property, 
 according as one or the other happens to be advantageous 
 to him. One may'have a lawful and beneficial end in view 
 in acquiring such a right uf refusal.^ " Mercantile contracts 
 of this character are not infrequent, and they are consist- 
 ent with a bona fide intention on the part of both parties 
 to perform them. The vendor of goods may expect to 
 produce or acquire them in time for a future delivery, and 
 while wishing to make a market for them, is unwilling to 
 enter into an absolute obligation to delivery, and there- 
 
 Lyon «. Culbertson, 83 111. 33; Corbett v. Underwood, 83 111. 324; San- 
 born V. Benedict, 78 111. 309? "Wolcott v. Heath, 78 111. 433. 
 
 1 Ashton ». Dakin, 4 H. & N. 867; Sawyer, Wallace &Co. v. Daggert, 
 14 Bush, 730; Cameron u. Durkheim, 65 N. Y. 425. But see, contra, 
 Brua's Appeal, 55 Pa. St. 294; Tareira v. Gabell, 89 Pa. St. 89; North v. 
 Philips, 89 Pa. St. 250. 
 
 2 Sawyer et al. v. Taggart, 14 Bush, 730. 
 
 3 Story V. Solomon, 71 N. Y. 420; Kingsbury v. Kirwan; 71 N. Y. 612; 
 Jlarris v. Lumbridge, 83 N. Y. 92 ; Bigelow v. Benedict, 70 N. Y. 202. 
 
 487 
 
§ 302 ILLEGAL SALES. [CH. XX. 
 
 foie bargains for an option which, while it relieves him 
 from liability, assures him of a sale, in case he is able to 
 deliver; and the purchaser may, in the same way, guard 
 himself against loss beyond the consideration paid for 
 the option, in case of his inability to take the goods, there 
 is no inherent vice in such a contract."^ And the con- 
 sideration for this option may very properly be the differ- 
 ence between the ruling market price and the price speci- 
 fied in the contract. For that would be the damage to the 
 other party resulting from the sale of the option or re- 
 fusal.^ 
 
 If each of the preceding propositions is correct, then the 
 illegality of option contracts must depend upon the inten- 
 tion of the parties not to deliver the goods bargained for, 
 but merely to pay the difference between tlie market price 
 and contract price. The cases are unanimous in the opin- 
 ion that a contract for the payment of differences in prices, 
 arising out of the rise and fall in the market price above or 
 below the contract price, is a wager on the future price of 
 the commodity, and is therefore invalid.^ If the contracts 
 
 1 Bigelow V. Benedict, 70 N. Y. 202. In this case, A., for a valuable 
 consideration, agreed to purchase gold coin of B. at a named price, the 
 coin to be delivered at any time within six months that B. might choose. 
 This case, as a legitimate transaction, is more easily understood than 
 where the option is to buy certain goods or to sell others, but the latter 
 can exist under lawful circumstances, and have a lawful end in view. 
 See Story v. Solomon, 71 N. Y. 420. 
 
 2 Story «. Solomon 71 N. Y. i20; Harris v. Lumbridge, 83 N. Y. 92, 
 and the cases cited in the next note. 
 
 3 Eumsey v. Berry, 65 Me. 674; Wyman v. Fisk, 3 Allen, 238; Brigham 
 V. Meade, 10 Allen, 246; Barratt v. Hyde, 7 Gray, 160; Brown v. Phelps, 
 103 Mass. 303; Hatch v. Douglass, 48 Conn. 116; Noyes v. Spaulding, 27 
 Vt. 240; Story v. Solomon, 71 N. Y. 420; Bigelow v. Benedict, 70 N. Y. 
 202; Harris v. Lumbridge, 83 N. Y. 92; North v. Phillips, 89 Pa. St. 250; 
 Euchlzky v. De Haven, 97 Pa. St. 202; Dickson's Exr. v. Thomas, 97 
 Pa. St. 278; Klrkpatrick v. Bonsall, 72 Pa. St. 155; Brown v. Speyer, 20 
 Gratt. 296; Williams v. Carr, 80 N. C. 294; Williams u. Tiedemann, G 
 Mo. App. 269; Lyon v. Culbertson, 83 111. 33; Cole «. Milmine, 88 111. 
 349; Corbittu. Underwood, 83 111. 324; Pickering v. Cease, 79 111. 338; 
 
 488 
 
CH. XX.] ILLEGAL SALES. § 302 
 
 were in form, as well as in fact, agreements to pay the dif- 
 ferences in price, they could be easily avoided and thrown 
 out of court. But the contracts never assume the form of 
 wngers on the price of the commodity. They are almost 
 always undistinguishable from those option contracts, in 
 which the parties in good faith have bargained for the re- 
 fusal of the goods, and which are valid contracts. ^ There 
 is no evidence on the face of the contract of the determin- 
 ation of the parties to settle on the differences in price ; 
 and while such a contract may be used as a cover for com- 
 mercial gambling, it is not necessarily a wager on the future 
 price of the commodity. It is the ordinary rule of law 
 that where a writing is susceptible of two constructions, 
 one of which is legal and the other illegal, that construc- 
 tion will prevail, which is in conformity with the hiw.^ 
 Applying this rule to the construction of option contracts, 
 it has very generailly been held that these contracts are 
 valid and enforcible, unless it be proven affirmatively that 
 the parties did not intend to make a delivery of the goods 
 bargained for, but to settle on the differences.^ And if it be 
 
 Pixley V. Boynton, 79 111. 351 ; Barnard v. Backhouse, 52 Wis. 593 ; Saw- 
 yer t). Taggart, U Bush, 727; Gregory, o. Wendall, 39 Mich. 337; Shaw 
 V. Clark, 49 Mich 284; Gregory v. Wattoma, 58 Iowa, 711; Everingham 
 V. Meighan, 55 Wis. 354; Rudolph v. Winters, 7 Neb. 125. 
 
 1 The following is a good illustration of the ambiguity of the con- 
 tract: " For value received, the bearer (S.) may call on the undersigned 
 for one hundred (100) shares of the capital stock of the Western Union 
 Telegraph Company, at seventy-seven and one-half (774) per cent, at any 
 time in thirty days from date. Or the bearer may, at his option, deliver 
 the same to the undersigned at seventy- seven and one-half (774) percent., 
 at any time within the period named, one day's notice required." 
 Story V. Solomon, 71 N. Y. 420. 
 
 2 " It is a general rule, that wheresoever the words of a deed, or of 
 the parties without deed may have a double intendment and the one 
 standeth with law and right, and the other is wrongful and against law, 
 the intendment that standeth with the law shall be taken." Coke on 
 Lyt. 42, 183. 
 
 3 Story V. Solomon, 71 N. Y. 420; Kingsbury v. Kirwan, 71 N. Y. 612; 
 Harris v. Lumbridge, 83 N. Y. 92; Williams v. Tiedemaun, 6 Mo. App. 
 
 489 
 
§ 302 ILLEGAL SALES. [CH. XX. 
 
 shown that only one of the parties entertained this illegal 
 intention, while the other acted in good faith, the contract 
 will be void as to the first, but will be enforcible in behalf 
 of the second. 1 This rule of construction is adopted by 
 most of the courts, in determining the legality of these 
 questionable contracts, but a different rule has been adopted 
 in Wisconsin. The contract which constituted the subject 
 of the suit, was in form u legitimate transaction, and there 
 was no proof that it was used as a cover for commercial 
 gambling. The court declared it to be the duty of the 
 plaintiff to show that he had made a bona fide contract for 
 the delivery of the commodities bought and sold, instead 
 of throwing upon the defendant the burden of proving that 
 the contract was made for the payment of differences in 
 price, and did not contemplate any delivery of the grain.^ 
 
 274 : Union Nat. Bank v. Carr, 15 Fed. Rep. 438, and cases cited in pre- 
 ceding notes. In delivering the opinion of the court, in Story ». Soio- 
 mon, supra, Earl, J., said : " On the faceof the contract the plaintiff pro- 
 vided for the contingency that on that day he might desire to purchase 
 the stock, or he might desire to sell it, and in either case there would 
 have to be a delivery of the stock, or payment in damages in lieu there- 
 of. We should not Infer an illegal intent unless obliged to. Such a 
 transaction, unless intended as a mere cover for a bet or wager on the 
 future price of the stock, is legitimate and condemned by no statute, and 
 that it was so intended was not proved. If it had been shown that 
 neither party Intended to deliver or accept the shares, but merely to pay 
 differences according to the rise or fall of the market, the contract 
 would have been illegal." 
 
 1 Rumsey v. Berry, 6S Me. 570; Williams v. Carr, 80 N. C. 94; Sawyer 
 etai. V. Taggert, 14 Bush, 727; Gregory v. Wendall, 39 Mich, 337. 
 
 2 The court claimed that it would " not do to attach too much weight 
 or importance to the mere form of the contract, for it is quite certain 
 tliat the parties will be astute in concealing their intention, as well as the 
 real nature of the transaction, if it be illegal. It may be safely assumed, 
 that the parties will make such contracts valid m form; but courts must 
 not be deceived l)y what appears on the face of the agreement. It is 
 often necessary to go behind, or outside of, the words of the contract — 
 to look into the facts and circumstances which attended the making of 
 it — in order to ascertain whether it was intended as a bona fide pur- 
 chase and sale of the property, or was only colorable. And to justify a 
 
 490 
 
CH. XX. J ILLEGAL SALES. § 303 
 
 § 303. Contracts ia restraint of trade. — Ever since 
 the earliest days of English national life, contracts, having 
 the object to restrain trade and oommerce, have been de- 
 clared to be illegal and void. The most common form 
 these contracts took was that of an agreement not to engage 
 in a particular calling or trade. At an early day, it was 
 held that all such agreements of every kind and degree were 
 illegal. But since the rule originated as a consequence of 
 the stringent regulations of the law relating to apprentice- 
 ship, — by which it was impossible for any one to ply a 
 trade without having served a seven years' apprenticeship, — 
 and these regulations were more and more relaxed, until 
 they were completely abrogated in most of the United 
 States, the rule prohibiting all contracts which tended to 
 restrain trade was reduced to a prohibition of all contracts 
 which restrained the obligor from carrying ou the trade 
 anywhere, while it became lawful to make contracts which 
 prohibited the prosecution of a trade or calling in some par- 
 ticular manner. 1 The limitations upon the restraint of 
 
 court in upholding such an agreement, it is not too mucli to require a 
 party claiming rights under it, to make it satisfactorily and atHrraatively 
 appear that the contract was made with an actual view to the delivery 
 and receipt of grain, not as an evasion of the statute ai;ain8t gaming, or 
 as a cover for a gambling transaction." Barnard u. Baclihouse, 52 Wis. 
 593. See, to the same eSEort, Cobb?). Prell, 15 Fed. Rep. 774. 
 
 1 In Alger v. Thacher, 19 Picli. 51, the leading case on the subject in 
 this country, Judge Morton, deliveri'ng the opinion of the court, said: 
 "Among the most ancient rules of the common law, we find it laid down 
 that bonds of restraint of trade are void. As early as the second yenr 
 of Henry V. (A. D. U15), we find by the year books that this was con- 
 sidered to be old and settled law. Through a succession of decisions, 
 it has been handed down to us unquestioned till the present time. It is 
 true the general rule has, from time to time, been modified and qualified, 
 but the principle has always been regarded as important aid salutary. 
 For two hundred years the rule continued unchanged without excep- 
 tions. Then an attempt was made to qualify it, by setting up a distinc- 
 tion between sealed Instruments and simple contracts. But this could 
 not be sustained upon any sound principle. A different distinction was 
 then started, between a general and a limited restraint of trail e, which 
 
 491 
 
§ 303 ILLEGAL SALES. [CH. XX. 
 
 trade which would make such restraint lawful may be in 
 respect to the space, within which the business may not be 
 carried on ; ^ but the authorities do not agree how restricted 
 or extensive these limitations may be, in order that the 
 restraint may be lawful.^ But, in any csise, in order to be 
 legal, the limitations expressed to be imposed upon the 
 operation of the contract in restraint of trade must be 
 made in good faith, and not merely for the purpose of 
 
 has been adhered to down to the present day. This qualification of the 
 general rule may be found as early as the eighteenth year of James I. 
 ^A. D. 1621), Broad v. Jollyfe, Cro. Jac. 596, where it was holden, that a 
 contract not to use a certain trade in a particular place was an exception 
 to the general rule and not void . And in the great and leading case on 
 this sabject, Mitchell v. Reynolds, reported in Lucas, 27, 85, 130, Fortes- 
 cue, 296, and 1 P, Wms. 181, the distinction between contracts under 
 seal and not under seal was finally exploded, and the distinction between 
 limited and general restraints fully established. Ever since that decis- 
 ion, contracts in restraint of trade generally have been held to be void; 
 while those limited as to time, or place or persons, have been regarded 
 as valid, and duly enforced. Whether these exceptions to the general 
 rule were wise, and have really improved it, some may doubt; but it has 
 been too long settled to be called in question by a lawyer. See also 
 Chappel». Brockway, 21 Wend. 157; Ross v. Sadgbeer, 21 Wend. 166; 
 Jarvis v. Peck, 1 Hoff. Ch. 479; Bowser v. Blitz, 7 Blackf. 344; Grasselli 
 V. Lowden, 11 Ohio St. 349. 
 
 1 Nobles V. Bates, 7 Cow. 307; Kinsman v. Parkhurst, 18 How. 389; 
 Metz V. Mott, 11 Barb. 127; Hulock v. Blacklowe, 2 Saund. 156, n. 1; Van 
 Marter v. Babcock, 23 Barb. 633; Davis v. Mason, 5 T. R. 118; Ward v. 
 Byrne, 4 M. & W. 648; Lawrence v. Kidder, 10 Barb. 641; Mitchell v. 
 Reynolds, 1 P. Wms. 190; Beard v. Dennis, 6 Ind. 200; Homer v. Ash- 
 ford, 3 Bing. 323 ; Horner v. Graves, 7 Bing. 735 ; Bunn v. Guy, 4 East, 
 190. 
 
 2 In Stearns v. Barrett, 1 Pick. 443, it was held lawful to make an 
 agi'eement not to use certain machines in any of the United States, ex- 
 cept two (Massachusetts and Rhode Island) . See Dean v. Emerson, 102 
 Mass. 480; Thomas v. Miles, 3 Ohio St. 274. So, also, not to follow a 
 trade or calling in, or within a certain distance (six, ten and twelve 
 miles) of, a town. Smalley v. Greene, 52 Iowa, 241 ; Linn v. Sigsbee, 67 
 lU. 75; Cook V. Johnson, 47 Conn. 175; McClurg's Appeal, 57 Pa. St. 51. 
 On the other hand it has been held to be illegal to make a contract not 
 to carry on a calling within the limits of a State. Taylor v. Blanchard, 
 13 Allen, 370; Wright v. Rider, 36 Cal. 342. But see, contra, Beal v. 
 Chase, 31 Mich. 490. 
 
 492 
 
CII. XX. J ILLEGAL SALES. § 304 
 
 evading the law.^ The limit may also be in respect to the 
 persons, with whom the business is to be carried on ; in 
 other words the agreement may be not to do business with 
 certain customers,^ or not to conduct the business in a cer- 
 tain manner, subject to or against certain trade regulations.* 
 Following the reason of the rule, which prohibits con- 
 tracts in restraint of trade, we find that it is made to pro- 
 hibit all contracts which in any way restrain the freedom 
 of trade or diminish competition, or regulate the prices of 
 commodities and services. All combinations of capitalists 
 and of workmen for the purpose of influencing trade in 
 their especial favor, by raising or reducing prices, are so 
 far illegal, that agreements to combine cannot be enforced 
 in the courts, and constitute insufficient considerations for 
 the commercial obligations that may be given in payment 
 of penalties.* 
 
 § 304. Maintenance and champerty. — Maintenance and 
 champerty are offenses at common law, and consist of inter- 
 meddling in another's lawsuits, stirring up strife, and. ad- 
 vancing the means, in the form of money or of services, 
 for prosecuting the suit. Agreements for remuneration 
 for such loans or services are void and cannot be enforced, 
 wherever the common law has not been changed by statute.^ 
 
 1 See Jones v. Lees, 1 H. & N. 189; Dunlop v. Gregory, 10 N. Y. 241. 
 
 2 Mitchell V. Reynolds, 1 P. Wms. 190; Tallis v. Tallis, 1 El. & Bl. 391; 
 Pemberton v. Vaughn, 12 Q. B. 87; Salnter v. Ferguson, 7 C. B. 7J6; 
 Mallan v. May, 11 M. & W. 653; Green v. Price, 13 M. & W. 695 Price v. 
 Green, 16 M. & W. 346; Davis v. Mason, 5 T. R. 118. 
 
 3 Gross V. La Page, Holt, 105; Lightfoot v. Tenant, 1 Bos. & P. 552. 
 * Morris Run Coal Co. o. Barclay Coal Co., 68 Pa. St. 173; Stanton «. 
 
 Allen, 5 Denio, 434 ; Brisbane v. Adams, 3 N. Y. 129 ; Noyes v. Day, 14 Vt. 
 384; Doolin v. Ward, 6 Johns. 194; Thompson v. Davies, 13 Johns. 112. 
 « Master v. Miller, 4 T. R. 340; Flight v. Leman, 4 Q. B. 883; Bell v. 
 Smith, 5 B. & C. 188; Williamson v. Hanley, 6 Bing. 299; Stanley v. 
 Jones, 7 Bing. 369; Alexander v. Polk, 39 Miss. 737; Thurston v. Perci- 
 val, 1 Pick. 415; Lathropc. Amherst Bank, 9 Met. 489; Martin?;. Voeder, 
 20 Wis. 466 ; Byrd v. Odem, 9 Ala. 755; Holloway v. Lowe, 7 Porter, 488; 
 
 493 
 
§. 306 Illegal sales. [ch. xx. 
 
 § 305. Offenses against morality and religion. — Com- 
 mercial paper, given as a compensation for the commission 
 of offenses against morality and religion, is illegal and of 
 no force, as between the parties.^ Thus, a note has been 
 held to be void, which was given as compensation for libel- 
 ing another or selling libelous books ; ^ for future illicit 
 cohabitation,^ or for renting lodgings for purposes of pros- 
 titution.* 
 
 § 306. Sales in violation of statutes. — A sale is illegal, 
 whether the statute expressly declares it to be so, or pro- 
 hibits its execution or merely imposes a penalty upon the 
 parties for making it.* But the sale itself will not be il- 
 legal, if the statute simply prohibits " offering for sale " or 
 "exposing for sale" certain goods; for a lawful sale 
 might in that case be made privately.* So, also, is a sale 
 not illegal because it is made by one who has not paid his 
 license tax to carry on his business in accordance with the 
 
 Satterlee v. Frazer, 2 Saudf . 141 ; Rush v. Laru, 4 Litt. 417; Coughlin v. 
 N. y., &c., R. Co., 71 N. Y. 443; Martin v. Clarke, 8 R. I. 389; Orr v. Tan- 
 ner, 12 R. I. 94; Quigley v. Thompson, 53 Ind. 317; Thompson v. Rey- 
 nolds, 73 III. 11 ; AUard v. Lamiraude, 29 Wis. 502. See Schomp v. 
 Sehenck, 11 Vroom, 195. 
 
 1 1 Parsons, 214; 1 Daniel, 197; Jackson v. Duchaire, 3 T. R. 551. 
 
 2 1 Daniel, 197; Stockdale v. Onwhyn, 5 B. & C. 173; Fores v. Johnes, 
 4 Esp. 97. 
 
 3 IParsons, 214; 1 Daniel, 194. But it is he'd that a note will be 
 good which has been given for a past offense of that kind. Ex parte 
 Munford, 15 Ves. 289; Gibson v. Dickie, 3 M. & S. 463; Marchioness of 
 Annandale v. Harris, 2 P. Wms. 432; Turner v. Vaughan, 2 Wils. 339; 
 Smith r. Richards, 29 Conn. 232; Brown v. Kinsey, 81 N. C. 245; Shenk 
 V. Mingle, 13 Serg. & R. 29. 
 
 * Jennings v. Throgmorton, Ry. & M. 251 ; Girardy v. Richardson, 1 
 Esp. 13. 
 
 6 Bancroft v. Dumas, 21 Vt. 456; Mitchell v. Smith, 1 Binn. 110; Mil- 
 ler V. Post, 1 Allen, 435; Griffith v. Wells, 3 Denio, 227; Barton v. Port 
 Jackson, &c.. Ice Co., 17 Barb. 404; Buxton v. Hamblen, 32 Me. 348; 
 Woods V. Armstrong, 54 Ala. 150; Roby ». West, 4 N. H. 285. 
 
 « Williams v. Tappan, 23 N. H. 385; Brackett v. Hoyt, 29 N. H. 264; 
 Jones V. Berry, 33 N. H. 209; Eberle v, Mehrbach, 55 N. Y. 682. 
 494 
 
Ctl. XX. J ILLEGAL SALES. § 3U7 
 
 requirement of the license law.^ But where the license is 
 imposed, not as a tax but as a police regulation, and the 
 prosecution of the business is positively prohibited, it is 
 probable that a sale made by one who has no such license 
 will be void.^ 
 
 It would be impossible to mention all the sales which 
 have been made illegal by statute, but a few of them are 
 given as illustrations in the note below. ^ 
 
 § 307. Sales of smuggled goods. — A contract is also 
 illegal, which provides for the sale and smuggling of goods 
 into the country in violation of its revenue laws.* 
 
 1 See Aiken v. Blaisdell, 41 Vt. 655; Smith v. Manhood, 14 M. & W. 
 452; Eahter !). First Nat, Bant, 92 Pa. St. 393; Harris v. Runnels, 12 
 How. 79; Vining v. Bricker, 14 Ohio St. 331; Lindsey v. Rutherford, 17 
 B. Mon. 245; Mandlebaum v. Gregovich, 17 Nev. 87; Corning v. Abbott, 
 54 N. H. 469; Lamed v. Andrews, 106 Mass. 435. But see Curran r. 
 Downs,"3 Mo. App. 468; Creekmore v. Chitwood, 7 Bush, 317; Swords v. 
 Owen, 43 How. Pr. 176; Best o. Bander, 29 How. Pr. 489. 
 
 2 For the distinction between the license as a police regulation, and 
 the license as a tax, see Tiedeman's Limitations of Police Power, 
 § 101. 
 
 3 The sale of unmeasured wood, Pray v. Burbank, 10 N. H. 377; coal 
 without being weighed, Ribby v. Downey, 5 Allen, 299; uucuUed hoops, 
 Durgin v. Dyer, 68 Me, 143; sales by unsealed weights and measures, 
 Milner v. Post, 1 Allen, 134; Smith v. Arnold, 106 Mass. 2G9; Sawyer v. 
 Smith, 109 Mass. 220; Palmer v. Kelleher, 111 Mass. 320; sales of re- 
 freshments to voters on election day, Duke v. Asbee, 11 Ired. 112; sale 
 of grain by the bag instead of by the bushel, Eaton v. Keagon, 114 Mass. 
 438; of bread by the loaf, instead of by the pound, Johnson v. Kalb, 8 
 W.N. C. (Pa,) 273; sales by uulicensed peddlers. Bull v. Harrigan, 
 17 B. Mon. 349; Duffy v. Gorman, 10 Cush. 45; sale of shingles under 
 statutory measurements, Wheeler v. Russell, 17 Mass. 258 ; sale of unin- 
 spected or unbranded fertilizers, Conley ». Sims, 71 Ga. 161; Woods u. 
 Armstrong, 64 Ala. 150; sale of unsurveyed lumber, Richmond u. Foss, 
 77 Me. 590. But see Abbott v. Goodwin, 37 Me. 203; Rogers v. Hum- 
 phreys, 39 Me. 302. For a discussion of the constitutionality of 
 regulations like these, see Tiedeman's Limitations of Police Power, 
 §89. 
 
 * Pellecat v. AngeU, 2 Cromp. M, & R. 311; Creekmore v. Chitwood, 7 
 Bush, 317; Story on Sales, §§ 507, 508. 
 
 495 
 
§ 308 ILLEGAL SALES. [CH. XX. 
 
 § 308. Sunday sales.^ — Independently of statute, it is 
 not unlawful to make contracts and sales and transact other 
 business on Sunday; ^ but in most of the States, if not in 
 all, as well as in England, there are statutes which make it 
 illegal to transact business on that day,^ excepting works 
 of charity. But public sentiment does not now support 
 this law so strongly as it once did, and under the influence 
 of a lax and indifPerent, if not hostile, public opinion, 
 the prohibition of sales on Sunday is very liberally con- 
 strued. If the sale is made and fully executed on Sunday, 
 it is illegal and neither party can be restored to his orig- 
 inal condition. Neither can the seller compel the buyer 
 to perform his part of the contract by paying the price, 
 nor can the buyer hold the seller liable on his warranty. 
 The law will leave the parties in the condition in which it 
 finds them.* But if the contract of sale alone is made on 
 
 1 See Tledeman's Limitations of Police Power, § 76, for a discussion 
 of the constitutionality of the Sunday Laws. 
 
 2 Bloom V. Richards, 2 Ohio St. 387; Moore v. Murdock, 26 Cal. 526; 
 Johnson v. Brown, 13 Kan. 529; Kaufman v. Hamm, 30 Mo. 387; Bats- 
 ford «. Every, 44 Barb. 616; O'Ronrkeu. O'Rourke, 43 Mich. 58; Horace 
 D. Keebler, 5 Neb. 358; Eberle v. Mehrbach, 65 N. Y. 682; Merritt tj. 
 Earle, 29 N. Y. 120. 
 
 3 See Drury v. Defontaine, 1 Taunt. 131; Bloxsome v. Williams, 6 
 Barn. & C. 232; Smith ». Beane. 15 N. H. 577; Allen v. Gardiner, 7 R. I. 
 22; Murphy v. Simpson, 14 B. Mon. 419; Mueller v. State, 76 Ind. 310; 
 Finley 17. Quirk, 9 Minn. 194; Sayre u. Wheeler, 32 Iowa, 559; Pale ». 
 Wright, 30 Ind. 476; Northrup v. Foote, 14 Wend. 248; Cranson v. 
 Goss, 107 Mass. 439; Lyon v. Strong, 6 Vt. 219. 
 
 < Horton v. Bufflngton, 105 Mass. 399; Cranson v. Goss, 107 Mass. 
 441; Block u. McMurray, 56 Miss. 217; Greene v. Godfrey, 44 Me. 25; 
 Ellis V. Hammond, 57 Ga. 179; Chestnut v. Harbaugh, 78 Pa. St. 473; 
 Shuman v. Shuman, 27 Pa. St. 00; Moore v. Murdock, 26 Cal. 574; Myers 
 (;. Meinrath, 101 Mass. 366; King i). Green, 6 Allen, 139; Kinney «. Mc- 
 Dermot, 55 Iowa, 674; Johnson v. Willis, 7 Gray, 164; Gundersonc. 
 Richardson, 56 Iowa, 66; Murphy v. Thompson, 14 B. Mon. 419; Einley 
 V. Quick, 9 Minn. 194; Howard v. Harris, 8 Allen, 297; Plaifted v- 
 Palmer, 63 Me. 576; Cardoze v. Swift, 113 Mass, 250; Lyon v Strong, 6 
 Vt. 219; Hulet «. Stratton, 5 Gush. 539; Northrup u. Foote, 14 Wend. 
 248; Robeson v. French, 12 Met. 24. 
 496 
 
CH. XX. J ILLEGAL SALES. § 309 
 
 Sunday, and the goods are delivered on some other subse- 
 quent day, the sale will be valid on the ground that a new 
 contract of sale was made when the goods were delivered.^ 
 And the sale has been held to be valid and binding, al- 
 though the goods are delivered on Sunday, if a fresh prom- 
 ise ^ or a ratification of the Sunday bargain ^ is made on 
 some other day. But this position does not seem to be a 
 sound one, if it be true that an illegal sale is absolutely 
 void instead of being merely voidable. 
 
 The statutes usually except works of charity and neces- 
 sity, so that contracts for the doing of such things will be 
 valid when made on Sunday.* And where the statute 
 simply prohibits the prosecution of one's " ordinary call- 
 ing," it will be lawful for one to sell goods on Sunday, if 
 that is not his ordinary calling.^ 
 
 § 309. Sale of intoxicating liquors. — The liquor trade 
 is now very generally subjected to police regulation, some- 
 times permitting its prosecution by those who have been 
 
 1 Bradley v. Rea, 14 Allen, 20; Dodson v. Harris, 10 Ala. 566; Kountz 
 V. Price, 40 Miss. 341; Rosenblatt «. Townsley, 73 Mo. 536; Foreman u. 
 Ah], 55 Pa. St. 325; Bradley o. Rea, 103 Mass. 188. See Smith v. Bean, 
 15 N. H. 577. 
 
 2 W^inchell «j. Carey, 115 Mass. 560; Harrison v. Colter, 31 Iowa, 16; 
 Melchior?). McCarty, 31 Wis. 252. 
 
 3 Adams v. Gay, 19 Vt. 338; Sayles v. Vi^ellman, 10 R. I. 465; Camp- 
 bell V. Young, 9 Bush, 240; Kuhns v. Gates, 92 lad. 66; Tucljer v. "West, 
 29 Ark. 386; Smith v. Case, 2 Oreg. 190. But see, contra, Thompson v. 
 Williams, 58 N. H. 248; Parker v. Pitts, 73 Ind. 597; Catlettt), Trustees, 
 62 Ind. 365; Trolwert v. Decker, 51 Wis. 46; Kountz v. Price, 40 Miss. 
 341; Ryno v. Darby, 20 N. J. Eq. 231; Reeves v. Butcher, 31 N. J. L. 
 224; Guiuni). Simes, 61 Mo. 335; Vinzo. Beatty, 61 Wis. 645; Shippeyt). 
 Eastwood, 9 Ala. 198; Popeo. Linn, 50 Me. 83; Laddu. Rogere, 11 Allen, 
 209; Day v. McAllister, 15 Gray, 433. 
 
 1 Stewart v. Davis, 31 Ark. 518; Aldrich v. Blackstone, 128 Mass. 148'; 
 Philadelpliia, &c., E. R. Co. v. Lehman, 56 Md. 209, 226; Allen v. Duffle, 
 43 Mich. 1; Dale v. Knapp,98 Pa. St. 389. 
 
 '^ Drury v. Defontaine, 1 Taunt. 131; Sanders v. Johnson, 29 Ga. 526; 
 Allen V. Gardiner, 7 R. I. 22; Mills v. Williams, IG S. C. 593. 
 
 32 497 
 
§ 309 ILLEGAL SALES. [CH. XX. 
 
 licensed by the State, and sometimes partially or totally 
 prohibiting the sale of intoxicating liquors, except for 
 medicmal, sacramental and mechanical purposes. Although 
 the constitutionality of these laws is very doubtful, on 
 principle, public opinion has been so greatly influenced by 
 the excitement of temperance agitators over the prevalent 
 drunkenness, that it has forced a recognition of the validity 
 of these laws, notwithstanding the violation of the funda- 
 mental principles of constitutional interpretation.* The 
 cases are numerous in which these prohibition laws have 
 been held to be constitutional ; ^ and as a matter of course, 
 where these laws have been violated in the sale of intoxicat- 
 ing liquors, the sale itself is illegal, and no action can be 
 maintained thereon.^ 
 
 While this is not the place for the discussion of constitu- 
 tional limitations of the police power of the state, it will 
 be well to say that the power of the state is limited to the 
 prohibition of the sales made altogether within the state, 
 and the state prohibition law cannot apply to interstate 
 
 * See Tiederaan's Limitations of Police Power, § 103. 
 
 2 Metropolitan Board of Excise v. Barrle, 34 N. Y. 657; Wynehame «. 
 People, 3 Kern, 435 ; Warren v. Mayor, &c., Charleston, 2 Gray, 98 ; Fisher 
 V. McGirr, 1 Gray, 26; Jones v. People, 14 111. 196; Goddard v. Jackson- 
 ville, 15111. 588; People v. Hawley, 3 Gibbs, 330; Preston ». Drew, 33 
 Me. 559; State v. Noyes, 30 N. H. 279; State v. Snow, 3 B. I. 68; State v. 
 Peckham, 3 R. I. 293; State v. Paul, 6 R. I. 186; State v. Wheeler, 25 
 Conn. 290; Lincoln v. Smith, 27 Vt. 328; Sante v. State, 2 Clarke (Iowa), 
 165; Prohibitory Am. Cas., 25 Kan. 761; Bartemeyer v. Iowa, 18 Wall. 
 729; State.u. Mugler, 29 Kan. 262; Perdue v. Ellis, 18 Ga. 586; Austin v. 
 State, 10 Mo. 591; State v. Searcy, 20 Mo. 489; Our House v. State, 4 
 Greene (Iowa), 172; ZumhofC v. State, 4 Greene (Iowa), 526; State v. 
 Bonehey, 8 Iowa, 396; State v. Carney, 20 Iowa, 82; State v. Baughman, 
 20 Iowa, 497; State v. Gurney, 37 Me. 156; State v. Burgoyne, 7 Lea, 173; 
 State V. Prescott, 27 Vt. 194; Lincoln v. Smith, 27 Vt. 328; State v. 
 Brennan's Liquors, 25 Conn. 278; State o. Common Pleas, 36 N. J. 72. 
 
 2 Weld V. Golden, 6 N. E. Rep. 229 (Mass ). See Butter v. North- 
 umberland,* 50 ]N. H. 33; Jameson v. Gregory, 4 Met. (Ky.) 363; Dolson 
 V. Hope, 7 Kan. IGl; Yaeger Milling Co, v. Brown, 128 Mass. 171. 
 498 
 
CH. XX. J ILLEGAL SALES. § 309 
 
 commerce law.^ And the Supreme Court of the United 
 States has lately held that the state cannot prohibit the sale 
 of goods, bought in another state, as long as the original 
 package, in which it was imported into the state, remains 
 unbroken. Until broken or changed in form, it remains an 
 article of interstate commerce, and does not become a 
 subject of domestic trade, until so changed.^ 
 
 ^ Tiedeman's Limitations of Police Power, § 202. 
 
 2 Leisy v. Harflln (U. S. Sup. Gt. X890), 10 S. C. Eep. 725. 
 
 499 
 
CHAPTEE XXI. 
 
 RIGHTS OF BONA FIDE PURCHASERS. 
 
 Section 310. The general doctrine. 
 
 311. Sales in market overt. 
 
 312. Possession how far evidence of ownership. 
 
 313. Purchaser of stolen and lost goods. 
 
 3U. Purchaser at an illegal sale — Void judicial sales. 
 
 31 5. Purchaser from a bankrupt or insolvent. 
 
 316. Sale by bailees in general — Sale by pledgee. 
 
 317. Delivery of goods to bailee for sale — Sale by factors — 
 
 Factors' acts. 
 
 318. Documents of title. 
 
 319. Certificates of stock. 
 
 320. Warehouse receipts. 
 
 321. Definition and nature of bills of lading. 
 
 322. Form and contents of the bill of lading. 
 
 323. Transfer of bill of lading — Its negotiability. 
 
 324. Demand when necessary. 
 
 325. Purchaser from one having a voidable or defeasible title — 
 
 Sales upon condition subsequent and precedent. 
 
 326. Purchaser from the mortgagee of a chattel mortgage. 
 
 327. Purchaser from fraudulent vendee. 
 
 328. Purchaser of vendor in fraud of creditors. 
 
 329. Who are bona fide purchasers. 
 
 § 310. The general doctrine. — The general principle 
 of the law of sales is that the buyer does not get any bet- 
 ter title than what the vendor had; and, therefore, if one 
 undertakes to sell goods, which do not belong to him, and 
 when he has not been authorized by their owner to sell 
 them as his agent, the purchaser does not acquire title to 
 the goods, although he buys them in good faith and pays 
 full value for them.* But there are some exceptions to 
 
 1 SaltusB. Everett, 20 Wend. 267; Ash v. Putnam, 1 Hill, 303; Quinn 
 V, Davis, 78 Pa. St. 15; Evansville, &c., B. R. Co. v. Erwin, 84 Ind. 457, 
 500 
 
CH. XXI.] EIGHTS OF BONA FIDE PUKCHASERS. § 311 
 
 this rule, which will be discussed in the succeeding pages. 
 It may, however, be stated here that no reference will be 
 made to the bona fide purchase of commercial paper, as 
 that constitutes a distinct subject in itself. Hence what 
 follows is not intended to refer to that class of property. 
 
 §311. Sales In markets overt. — According to the 
 English law, the sale of personal property in any one 
 of the public markets, which were once held in different 
 parts of England, and finally any open or public sale of 
 goods within a certain area in the city of London, was held 
 to give to the purchaser an absolute title to the goods, not- 
 withstanding they were not the lawful property of the 
 vendor. 1 The reason for this exception to the general rule 
 is that the publicity of the sale would enable the owner of 
 the goods to reclaim them, if they were not the property 
 of the vendor, and this notorious possession of the goods 
 by the vendor supports the presumption that he had a good 
 and perfect title to the goods. But the doctrine of the 
 
 166; "Whistler v. Foster, 14 C. B. (n. s.) 248; Fawcett v. Osborn, 32 111. 
 425; Wright t!. Solomon, 19 Cal. 64; Barnard ». Campbell, 55 N. Y. 460; 
 Leigh v. Mobile, &c., R. R. Co., 58 Ala. 176; Wheelwright v. Depuyster, 
 1 Johns. 471; Gibbs v. Jones, 46 111. 319; Williams v. Merle, 11 Wend. 
 80; Cundy c. Lindsay, L. R. 3 App. Cas. 463; Hamet v. Letcher, 37 Ohio 
 St. 356; Alexander o. Swackhamer, 105 Ind. 81; Ventrees v. Smith, 10 
 Pet. 161, 175; Klein v. Siebold, 89 111. 640; McCully v. Hardy, 13 111. 
 App. 631; Mayes v. Bruton, 1 Tex. App. § 699; Jennings v. Gage, 13 111. 
 610; Parsons u. Webb, 8 Greenl. 38; Prime v. Cobb, 63 Me. 200; Courtis 
 V. Cane, 32 Vt. 232; Stanley v. Gay lor, 1 Cnsh. 636; Gilmore v. Newton, 
 9 Allen, 171; Kinder u. Shaw, 2 Mass. 398; Moody ». Blake, 171, Mass. 23; 
 Wilson </. Crocker, 43 Mo. 218; Whistler v. Foster, 32 L. J. C. P. 545; 
 Peer v. Humphreys, 2 Add. & E. 161; Barrett v. Hill, 3 Hill, 348; Bearce 
 V, Bowker, 115 Mass. 129; Chapman v. Cole, 12 Gray, 141 ; Riley v. Bos- 
 ton Water Power Co., 11 Cush, 11; Bryant v. Whitchen, 52 N. H. 158; 
 Riford V. Montgomery, 7 Vt. 418; Galvin v. Bacon, 2 Fairf. 28. 
 
 1 2 Blackst. Com. 449; Cundy ■». Lindsay, L. R. 3 App. Cas, 463; Ben- 
 jamin V. Andrews, 5 C. B. (n. s.) 299; Bennett's Benjamin on Sales, § 6 ; 
 Lyons v. De Pass, 11 Ad. & E. 326; Crane v. London Dock Co., 5 Best 
 & Smith, 313; Lee v. Bayes, 18 C. B. 599. 
 
 501 
 
§ 312 RIGHTS OP BONA FIDE PURCHASERS. [CH, XXI. 
 
 market overt has never met with any recognition in this 
 country, and in most of the States it has been expressly 
 repudiated. 1 
 
 There has been some attempt to apply the doctrine of 
 market overt to sales of chattels under execution, and the 
 attempt has been somewhat successful in the case of ju- 
 dicial sales ;^ but the authorities in general refuse to hold 
 that the purchaser in an involuntary sale of any kind gets 
 any better title than what the party selling has in the prop- 
 erty.* 
 
 § 312. Possession how far evidence of ownership. — 
 
 Possession of the goods is always prima facie evidence of 
 ownership of them,* but unless the possession is accom- 
 panied by other evidences of ownership, or the facts estop 
 the real owner from asserting his title against the purchaser, 
 it is only prima facie evidence of ownership; and if it be 
 proved, as it may be, by extraneous evidence that the goods 
 
 1 Ventress v. Smith, 10 Pet. 161; Williams v. Merle, 11 Wend. 80 
 s. c. 25 Am. Dec. 609 note; Coombs v. Gordon, 59 Me. 112; Griffith 
 V. Fowler, 18 Vt. 390; Wheelwright v. Depnyster, I Johns. 180 
 Mowrey v. Walsh, 8 Cow. 238; Hosack v. Weaver, 1 Yeates, 478 
 Quinn v. Davis, 78 Pa. St. 15; Black v. Jones, 64 N. C. 318 
 Dawson v. Susong, 1 Heisk. 243; Fawcett v. Osborn, 32 111. 411 
 Kobinson v. Skipworth, 23 Ind. 311; Roland v. Gundy, 5 Ohio, 203 
 Ketchum v. Brennan, 53 Miss. 596 ; Browning v. Magill, 4 Har. & J. 308 
 Hardy v. Metzgar, 2 Yeates, 347; Easton v. Worthington, 5 Serg. & R 
 130; Hoffman v. Oarow, 22 Wend. 285; Towne v. Collins, 14 Mass. 400 
 Bryant v. Whitcher, 52 N. H. 158; Heacock v. Walker, 1 Tyler, 341. 
 
 2 See Samms v. Alexander, 3 Yeates, 268; The Monte AUegre, 9 
 Wheat. 616; Heacock v. Walker, 1 Tyler, 341; Forsythe v. Ellis, 4 J. J- 
 Marsh. 298. 
 
 3 Freeman on Executions, § 336; Chambers v. Lewis, 28 N. Y. 454; 
 Buffam V. Deane, 8 Cush. 41 ; Stone v. Ebberly, 1 Bay, 317; Sheanck v. 
 Huber, 6 Binn. 2; Austin v. Tilden, 14 Vt. 327; Williams v. Miller, 16 
 Conn. 144 ; Bartholomew v. Warren, 32 Conn. 202 ; Homesley v. Hague, 
 4 Jones, 481; Symondsc. Hull, 37 Me. 354; Champney ». Smith, 15 Gray, 
 212 ; McClanahan v. Barrow, 27 Minn. 664. 
 
 * Leigh V. Mobile, &c., R. R. Co., 58 Ala. 165, 178; Fawcett v. Osborn, 
 32 111. 411. 
 
 502 
 
CH. XXI. J EIGHTS OF BONA TIDE PUKCHASEES. § 313 
 
 do not belong to the vendor, the bona fide purchaser can- 
 not resist the demand of the owner for a delivery to him of 
 his property.^ But if the owner of the goods clothes the 
 vendor with all the indicia of title, and permits the agent to 
 appear to the world as the real owner of the goods, he is 
 then estopped, as against a bona fide purchaser, from deny- 
 ing that the agent, in selling, did not pass an absolute title 
 to the goods. ^ 
 
 § 313. Purchaser of stolen and lost goods. — The thief 
 does not, by gaining possession, acquire any right to it as 
 against the true owner, not even a qualified right; and 
 since he acquires it by his own act, and against the will, or 
 at least without the consent of the true owner, the owner 
 has not in any sense invested him with apparent ownership, 
 and hence a bona fide purchaser does not acquire from him 
 any title which he can assert against the true owner,* not 
 even where he buys in the best of faith, and for full value.* 
 This is not only the case with common-law larceny, but 
 with every sort of unlawful appropriation of the property 
 of another, where the owner has not parted with the prop- 
 erty or consented to the transfer of the property ; ^ and in- 
 
 1 Covin V. Hill, 4 Denio, 323; Leigh v. Mobile, &c., R. R. Co., 58 Ala. 
 165, 178; Andrews v. Dietricli, H Wend. 31 ; Picltering v. Busk, 15 East, 
 38; Saltus v. Everett, 20 Wend. 267; Barstow v. Savage Mining Co., 64 
 Cal. 388, 391. 
 
 2 Saltus V. Everett, 20 Wend. 378; Jennings v. Gage, 13 111. 610; Mc- 
 Nlel B. Tenth Nat. Bank, 46 N. Y. 825; Arnold c. Johnson, 66 Cal. 402; 
 Ambrose v. Evans, 66 Cal. 74; Barstow v. Savage Mining Co., 64 Cal. 
 388; Fawcett©. Osborn, 32 111. 411. This subject will be fully treated 
 in a subsequent paragraph. SeeposJ, §§ 317, 318. 
 
 3 Breckenridge v. McAfee, 54 Ind. 141; Cunday v. Lindsay, L. E. 3 
 App. Cas. 463; Williams v. Merle, 11 Wend. 80; 25 Am. Dec. 604, 606, 
 note; Barstow v. Savage Mining Co., 64 Cal. 388; Parham u. Riley, 4 
 Cold. 9; Galvin v. Bacon, 2 Fairf. 30, 31; Hoffman v. Carow, 20 Wend. 
 21. 
 
 < Lee V. Bayes, 18 C. B. 599; Robinson t!. Shipworth, 23 Ind. 311 ; 
 
 Sadler «. Lewers, 42 Ark. 148 ; Barstow w. Savage Mining Co., 64 Cal. 388 
 
 " Florence Sewing Machine Co. v. Warford, I Sweeney, 433; Malcolm 
 
 503 
 
§ 314 RIGHTS OF BONA FIDE PURCHASEES. [CH. XXI. 
 
 eludes not only robbery, or appropriation by force,' but 
 also an appropriation of the property of another by mis- 
 take.^ In every case, where one appropriates the property 
 of another, without the latter's consent or co-operation, the 
 vendor does not acquire such a title as that he may give a 
 purchaser a perfect title against the true owner ; and the 
 owner may maintain against the purchaser any action, such 
 as trover or refplevin, as may be necessary to enable him to 
 recover his property; ^ and he can do this, although the 
 purchaser has expended labor on the property, and thereby 
 more or less changed its character.* 
 
 The same rule holds good where the property was found, 
 instead of having been stolen or appropriated. The finder 
 cannot give a good title to the purchaser.^ 
 
 § 314. Purchaser at an illegal sale under execution — 
 Void judicial sales. — If an officer levies upon goods not 
 belonging to the person against whom the writ of execution 
 was issued, and sells them, the purchaser does not get a 
 good title, and both he and the officer are liable in trover 
 for the conversion, while the goods may be recovered from 
 the purchaser in an action of replevin.* And the title of 
 
 B. Loveridge, 13 Barb. 372; Keyser ^. Harbeck, 3Duer, 373; Williams t'. 
 Given, 6 Gratt. 268. See Mowry v. Walsh, 8 Cow. 238; Andrews v. Diit- 
 rich, 14 Wend. 34; Breckenridge v. McAfee, 54 Ind. 141. 
 
 1 Parnam b. Riley, 4 Cold. 9. 
 ,. 2 Williams v. Merle, 11 Wend. 80; Chapman v. Cole, 12 Gray, 141. 
 
 " Riley 1). Boston Water Power Co., 11 Cush. 11; Whitman Gold, &c., 
 Mining Co. v. Tritle, 4 Nev. 494; Freeman v. Underwood, 66 Me. 229; 
 Nesbitt V. St. Paul Lumber Co., 21 Minn. 491 ; Sharp v. Parks, 48 111. 611 ; 
 Gilmore v. Newton, 9 Allen, 171; Barrett v. Warren, 8 Hill, 348. 
 
 * Strubbee v. Trustees, 78 Ky. 481. 
 
 5 Cunday v. Lindsay, L. E. 8 App. Cas. 463; McAvoy o. Medena, 11 
 Allen, 548; Mann v. Ark., &c., Co., 24 Fed. Rep. 261 ; Bridges v. Hawkes- 
 worth, 7 Eng. L. & Eq. 424. See Sherwood v. Meadow Valley Mining 
 Co., 50 Cal. 412; Winter v. Belmont Mining Co., 53 Cal. 428; Barstow v. 
 Savage Mining Co., 64 Cal. 388. 
 
 ' Griflath V. Fowler, 18 Vt. 390; Symonds o. Hall, 37 Me. 354, 357; 
 Sanborn v. Kittridge, 20 Vt. 640; Buffum v. Deaue, 8 Cush. 41 ; Johnson 
 504 
 
CH. XXI. J RIGHTS OF BONA FIDE PURCHASERS. § 314 
 
 the purchaser in an execution sale is also defective and in- 
 valid as against the debtor, where the officer has levied upon 
 property which is exempt from levy.^ 
 
 Wherever a judicial sale is based upon a void order 
 of the court, or is conducted in violation of the instructions 
 of the court or of the law, which prescribe certain formali- 
 ties, the purchaser gets no title, as against the owner of the 
 goods, ^unless, perhaps, when the defect in the proceedings 
 is a mere irregularity, which makes the sale voidable only, 
 and not void.^ 
 
 In sales under execution ^ as well as in sales in chancery 
 and judicial sales in general,^ if the order of sale or writ of 
 execution has been issued in due form, and by the proper 
 officer, a reversal of the judgment, upon which the order or 
 writ rested, by the court of appeals will not disturb the 
 title of the purchaser, unless he was a party to the suit 
 in which the judgment had been rendered.^ 
 
 M. Babcock, 8 Allen, 583; Bartholomew v. Warren, 32 Conn. 102; Homes- 
 ley V. Hogue, 4 Jones (N. C), 431; Arendale v. Morgan, 5 Sneed, 103; 
 Burke v. McWhirter, 35 Up. Can. Q. B. 1; Klrby v. Cahili, 6 Up. Can. Q. 
 B. (o. s.) 610; Baggs v. Fowler, 16 Cal. 559; Stone v. Eberly, 1 Bay, 317; 
 Sheanck v. Ruber, 6 Binn. 2; Chapney v. Smith, 15 Gray, 512; Bryant v. 
 Whitcher, 32 N. H. 158; Coombs v. Gorden, 59 Me. 111. 
 
 1 See Cooper v. Newman, 45 N. H. 339; Williams v. Miller, 16 Conn. 
 143; Buckley v. Wheeler, 52 Mich. 1. 
 
 2 Wells V. Raglan, 1 Swan, 501; Miller v. Thompson, 60 Me. 322; 
 Wheelwright v. Depeyster, 1 Johns. 471; Harris «. Saunders, 1 Strobh. 
 Eq. 300. 
 
 " See Farrant v. Thompson, 5 Bard. & Aid. 826; Lock ». Selwood, 1 
 Q. B. 736. 
 
 ' Feger «. Keefer, Watts, 297; Taylor v. Boyd, 3 Ohio, 337; Gray v. 
 Brigmordello, 1 Wall. 627; Parker v. Anderson, 5 B. Mon. 445. But see 
 Delano v. Wilde, 11 Gray, 17. 
 
 » Galpin v. Page, 18 Wall. 350; Jackson v. Cadwell, 1 Cow. 641; 
 Taylor v. Boyd, 3 Ohio, 337; Gott v. Palmer, 41 Mo. 416; McJilton v. 
 Love, 13 111. 495; Reynolds v. Harris, 14 CaK 667. 
 
 6 Stinson^. Ross, 51 Me. 557; Galpin v. Page, 18 Wall. 350; Jackson 
 V. Cadwell, 1 Cow. 641; Taylor b. Boyd, 3 Ohio, 337; Gott v. Powell, 
 41 Mo. 416; McJilton v. Love, 13 111. 495; Reynolds v. Harris, 14 
 Cal. 667. 
 
 505 
 
§ 316 EIGHTS OF BONA FIDE PURCHASERS. [CH. XXI. 
 
 § 315. Purchaser from a bankrupt, or insolvent. — 
 
 Wherever the bankrupt and insolvent laws vest the property 
 of the bankrupt in an assignee for the creditors ; or where the 
 insolvent debtor makes a voluntary assignment for the bene- 
 fit of creditors, in either case he no longer has the title to 
 the goods, and if he should attempt thereafter to sell them, 
 his bona fide purchaser would get no title, which he could as- 
 sert against the assignee or against the creditors ; and he will 
 be guilty of conversion, if he takes possession of the goods.^ 
 
 § 316. Sale by bailees in general — Sale by pledgee. — 
 
 Except in the case of goods which have been lost and found, 
 and in which the finder becomes a bailee on taking the 
 property found into his possession, a bailment arises out of 
 a voluntary transfer of property by the owner to one who 
 is charged with some duty in respect to the property deliv- 
 ered to him, and upon the performance of this duty, he is 
 to return the goods to the owner, or dispose of them ac- 
 cording to his order or direction. For this reason, it is 
 universally held that the bailee does not acquire the abso- 
 lute title to the goods bailed, only a special property therein 
 for the purposes of the bailment. He has, therefore, in 
 himself no absolute title which he can convey to another, 
 which would enable the latter to hold the property against 
 the demand of the true owner. 
 
 This is the case in every kind of bailment, especially in 
 bailments of depositum,^ commodatum, or loan,^ for hire,* 
 for transportation ,5 or for expenditure of work on the 
 
 1 Galvin v. Bacon, 11 Me. 28; Hoare v. Parker, 2 T. R. 576; Stephens 
 V. Elwall, 4 Maule & S. 259. 
 
 2 Stanleys. Gaylord, 1 Cnsh. 536; Newcomb Buchanan Co. v. Baskett, 
 11 Bush, 658; Hartop v. Hoare, 3 Atk. 44. 
 
 = Gilmore v. Newton, 9 Allen, 171; Eoland v. Gundy, 5 Ohio, 202; 
 Heacock v. Walker, 1 Tyler, 338; Eiford ». Montgomery, 7 Vt. 411. 
 
 < Sanborn v. Coleman, 6 N. H. 14; Donald v. Arnold, 28 Tex. 97. 
 
 5 Saltus V. Everett, 20 Wend. 267; Linnen v. Crugger, 40 Barb. 633; 
 Covill V. Hill, 4 Denio, 323; Hyde v. Noble, 13 N. H. 494. 
 506 
 
CH. XXI. J RIGHTS OF BONA FIDE PURCHASERS. § 316 
 
 property bailed. ^ And where the right to purchase is 
 added to the bailment, until the right has been exercised, 
 and the sale to him has been completed, the bailee has him- 
 self no power to sell, and can give no good title to a pur- 
 chaser from him.^ This is the case with contracts for the 
 sale or return of the goods delivered, where the title remainsf 
 in the vendor until the vendee exercises his right of elec- 
 tion.^ 
 
 But while there can be no doubt that the purchaser from 
 an ordinary bailee geta no better title than what the bailee 
 had, some doubt is felt in the case of an unauthorized sale 
 by a pledgee, even though none may exist. The pledgee 
 undoubtedly has the power, when the debt falls due and 
 remains unpaid, to sell the pledge for the purpose of sat- 
 isfying the debt for which the pledge had been given, after 
 reasonable notice and, if there be statutory regulations of 
 sales by pledgee, in compliance with these regulations.* 
 But if the pledgee should attempt to sell the pledge, when 
 there has been no default in the payment of the debt, as, 
 for example, when the debt has not yet matured, the pur- 
 chaser does not get an absolute title t.o the goods, as against 
 the pledgor, and he will be liable in conversion for an ap- 
 propriation of them to his own use.^ It is the same case, 
 
 1 Buckmaster v. Mower, 21 Vt. 204 ; Wooster v. Sherwood, 25 N. Y. 278. 
 
 2 Carter u. Wallace, 35 Hun, 189; Burroughs v. Bayne, 5 Hurl. & M. 
 296; Chamberlaiu v. Smith, 44 Pa. St. 431; Hart v. Carpenter, 24 Conn. 
 427; Grant v. King, 14 Vt. 367. 
 
 3 See ante, § 213, and post, § 325. 
 
 * See Martin u. Keid, 11 C. B. (n. s.) 730 ; Pigott v. Cubley, 15 C. B. (n. 
 s.) 701; Johnson v. Stear, 15 C. B. (n. s.) 330; Rohrle v. Stidger, 50 Cal. 
 207; Stevens v. Bell, 6 Mass, 339; Mowry v. Wood, 12 Wis. 413; Robin- 
 son V. Hurley, 11 Iowa, 410; Davis v. Funk, 39 Pa. St. 243; Elder v. 
 Rouse, 15 Wend. 218; Washburn v. Pond, 2 Allen, 474; Tucker v. Wilson, 
 1 P. Wms. 261; Kemp v. Westbrook, 1 Ves. 278. 
 
 « Bailey v. Colby, 34 N. H. 29; Ashton's Appeal, 73 Pa. St. 153; Belden 
 V. Perkins, 78 111. 449; McNeill u. Tenth Nat. Bank, 55 fiarb. 59; Shelton 
 V. French, 33 Conn. 489; Moses v. Conham, Owen, 123; Whitaker v. 
 Sumner, 20 Pick. 399. 
 
 507 
 
§ 317 EIGHTS OF BONA FIDE PURCHASEES. [CH. XXI. 
 
 where on default of payment the sale is made irregularly 
 or in violation of statutory requirements as to manner of 
 sale. But whether the sale is void, because it is made be- 
 fore the maturity of the debt,' or because the sale is for 
 any reason irregular,^ in either case, the purchaser will at 
 least get whatever title the selling pledgee had ; and will 
 have the right to hold the pledge against the demand of the 
 pledgor, until the latter pays the debt, to secure which the 
 pledge was given. And until the pledgor tenders payment 
 of his debt to the purchaser from the pledgee, the pur- 
 chaser cannot be held liable for conversion. 
 
 § 317. Delivery of goods to bailee for sale — Sale by 
 factors — Factor's acts. — Where, goods are delivered to 
 a bailee for sale by him, he has given him the power to sell 
 the goods, and, of course, a purchaser for value will re- 
 ceive a perfect title, which will prevail against the owner of 
 the goods. This is the general rule. But if the factor or 
 commission merchant,' for such are the names of a bailee 
 for sale, transfers the property, consigned to him, to a cred- 
 itor in satisfaction of his own debt,* or exchanges the goods 
 for others instead of selling them,^ he will exceed his 
 powers, and the purchaser will not acquire such a title as 
 
 1 First Nat. Bank v. Boyce, 78 Ky. 42 ; Belden v. Perkins, 78 III. 449 ; 
 Lewis V. Mott, 36 N. Y. 395; Donald v. Suckling, L. R, 1 Q. B. 585. The 
 pledgee has the right to repledge the goods for his own debt, and the 
 repledgee has the right to hold against the owner, until he pays his debt, 
 to secure which the pledge was originally given. Talty v. Freedman's 
 Bank, 93 U. S. 321; Donald v. Suckling, supra; Halliday v. Holgate, L. 
 E. 3 Ex. 299. 
 
 2 See Talty v. Freedman's Bank, 93 U. S. 321 ; Kidney v. Persons, 41 
 Vt. 386; Bulkeler v. Welch, 31 Conn. 339; Lewis v. Mott, 36 N. Y. 395; 
 Baltimore Mar. Ins. Co. v. Dalrymple; 25 Md. 142; Halliday v. Holgate, 
 L. E. 3 Ex. 299. 
 
 s See ante, § 273. 
 
 " Parsons v. Webb, 8 Greenl. 38; Eodick v. Coburn, 68 Me. 170. 
 5 Haas i». Damon, 9 Iowa, 589; Trudo ». Anderson, 10 Mich. 857; Wing 
 ». Neal, 2 Atl. Eep. 881 (Me.). 
 
 508 
 
CH. XXI. J RIGHTS OF BONA IFIDE PURCHASERS. § 317 
 
 can be sustained against the demands of tlie real owner. 
 And although the factor has a lien on the goods for 
 the advances made, and for his commissions which he may 
 assign or pledge as security for his own debt,i if he pledge 
 the goods of his consignor for a larger amount than for 
 which he has a lien on the goods, to the extent of the ex- 
 cess in the amount of the pledge he has been guilty of a 
 conversion of the pledgor's goods, and the pledgor may 
 recover his goods from the pledgee, upon the payment of 
 his dues to the commission merchant or factor.^ In all these 
 cases, the bona fide purchaser gets no better title than what 
 his vendor had against his principal, and, therefore, can- 
 not resist the claim of the owner to the property.' But it 
 is different with the effect of the factor's disobedience of. 
 his principal's instructions in making the sale, as to the 
 price and the terms and conditions of the sale. As to 
 these instructions, when they are not known to the buyer, 
 the factor alone is bound by them, and a bona fide 
 purchaser from him in violation of them, but in accord- 
 ance with the prevalent mercantile custom and usage, will 
 get a good title to the goods against the principal, notwith- 
 standing the factor's divergence from his orders.* 
 
 But, in order to enable a bona fide purchaser from a fac- 
 tor — or one who is intrusted with the possession of the 
 goods, and the indicia of title, such as a bill of lading or 
 warehouse receipt, with the power to sell, — to feel sure of 
 his title, statutes have been passed in several of the States, 
 as well as in England, which provide generally that where 
 
 1 Donald v. Suchling, L. R. 1 Q. B. 585. 
 
 2 City Bank». Barrows, L. E. 5 App. Cas. 664; Wright v. Solomon, 
 19 Cal. 64; Glidden v. Lucas, 7 Cal. 26; Horr v. Barker, 11 Cal. 393; 
 Hutchinson v. Bows, 6 Cal. 385; McCreary v. Gains, 55 Tex. 485; Nowell 
 V. Pratt, 5 Cush. Ill; Baunennan ». Quackenbush, 11 Daly, 529; Mc- 
 Lachlin v. Brett, 34 Hun, 478. 
 
 s But see, contra, Higgins b, Burton, 23 Law J. Ex. 32. 
 < Sargent ». Blunt, 16 Johns. 74; Arnolds. Halenbake, 6 Wend. 34. 
 
 509 
 
§ 317 EIGHTS or fiONA PiDE tUUCHASEKS. [cH. XXI. 
 
 one takes property from a factor in due course of business, 
 either in exchange or pledge, or otherwise, without knowl- 
 edge of the real relation of the vendor to the goods and of 
 the defects of his title, when the goods are in the posses- 
 sion of the factor or he possesses the so-called documents 
 of title such as the bill of lading, warehouse or elevator re- 
 ceipt, or dock-warrant, the purchaser will get a perfect 
 title which he may successfully assert against the principal 
 and owner of the goods. Such statutes are to be found in 
 England,^ Canada,^ New York,* Massachusetts,* Alabama,^ 
 Maine, Ohio, California" and perhaps in other States;^ 
 and it seems that in some of the States, under peculiar 
 principles, the doctrines of the factor's acts will be 
 •recognized and applied at common law, so that independ- 
 ently of statute a factor, or one who is intrusted with the 
 possession of the goods, may in excess of his authority to 
 sell pass a good title to his purchaser, which he may suc- 
 cessfully assert against the owner of the goods.* 
 
 But in order that the purchaser may claim a perfect title 
 against the owner, under these acts, the requirements of the. 
 statute must be complied with. In the first place, the per- 
 
 1 See Cole v. Northwestern Bank, 9 C. P. 470; 10 C. P. 354; Navul- 
 show u. Brownsigg, 2 De Gex, M. & G. 441, 446, notes; Kaltenbach ». 
 Lewis, L. R. 24 Ch. D. 54; Johnson v. Credit Lyonnais, 2 C. P. Div. 224; 
 3 C. P. Div. 32. 
 
 2 In re Coleman, 36 Up. Can. Q. B. 659; Cockburn v. Sylvester, 27 
 Up. Can C. P. 34; Todd v. Liverpool, &c., Ins. Co., 20 Up. Can. C. P. 523. 
 
 3 Jennings 1). Merrill, 20 Wend. 9. 
 
 • De Wolf V. Gardner, 12 Cush. 19; Ullman v. Barnard, 7 Gray, 554; 
 Mich. State Bank v. Gardner, 15 Gray, 362. 
 
 s Bott V. McCoy, 20 Ala. 578. 
 
 6 Wisp V. Hazard, 66 Cal 459; Green v. Campbell, 52 Cal. 586, 589. 
 
 ' See Warren v. Martin, 11 How. 209. 
 
 8 See Crocker v. Crocker, 31 N. Y. 507; Eawles v. Deskler, 28 How. 
 Pr. 66; s. c. 4 Abb. App. Cas. 12; Qulnn a. Davis, 78 Pa. St. 15; Barker 
 ■w. Dlnsmore, 72 Pa. St. 427; Galvin B. Bacon, 11 Me. 28; McMahon «. 
 Sloan, 12 Pa. St. 229; Western Un. K. R. Co. v. Wagner, 66 111. 197; 
 Nixon V. Brown, 57 N. H. 34 ; Higgins v. Burton, 23 Law J. Ex. 32. 
 510 
 
CH. XXI. J RIGHTS OB* fiONA E"IDE tUECHASEKS. § 317 
 
 son undertaking to sell must be an agent, who is intrusted 
 with the possession for the purpose of sale; in other 
 words, he must be a factor or commission merchant.^ 
 The statute will not apply to a warehouseman, wharfinger 
 or other bailee who is not given the power to sell,^ nor to 
 agents, who do not make it their regular business to sell 
 goods for others.^ 
 
 In the second place, the agent vendor must be entrusted 
 either with the possession of the goods, or with symbolical 
 documents of title, such as the bill of lading, or the ware- 
 house or elevator receipt.* A broker does not come with- 
 in the operation of the statute.^ But in every case where 
 the agent vendor produces the document of title as evidence 
 of his authority to sell, in order that the bonaftde purchaser 
 may claim a good title against the principal, the agent must 
 have procured the document in good faith, and with the 
 consent of the owner of the goods. If he procured it from 
 the owner, without his consent or co-operation, the pur- 
 chaser does not get a good title to the goods.® 
 
 1 Stallenwerck 11. Thacher, 115 Mass. 224; Thacher». Moors, 134 Mass. 
 156; Klnsey o. Leggett, 71 N. Y. 395; Dows «. Nat. Ex. Ch. Bauk, 91 
 U.S. 618; Mechanics, etc., Bank «. Farmers, etc., Bank, 60 N. T. 40; 
 First Bank of Toledo v. Shaw, 61 N. Y. 299 ; Nickerson v. Darrow, 5 
 Allen, 419. 
 
 2 Mark*. "Whittenbury, 2 Barn. & Adol. 484; Cole v. Northwestern 
 Bank, 9 G. P. 470; s. c. 10 C. P. 354. But see Barnes v. Swarnson, 4 
 Best & Smith, 270. 
 
 3 Wood ». KowclifEe, 6 Hare, 183; Loeschman v. Machin, 2 Stark. 311 ; 
 Cooper u. Wellomat, 1 C. B. 670. . But see Hayman v. Flewker, 13 C. B. 
 (N. s.) 519. 
 
 * Howland ». Woodruff, 60 N. Y. 73 ; Cartright v. Wilmer'ding, 24 N. Y. 
 521 ; Pegram v. Carson, 10 Bosw. 505; Bonito 13. Mosquera, 2 Bosw. 401. 
 See Jenkyns ». TJsborne, 7 Man. & G. 678; Tuentes v. Montis, L. I?. 3 
 C. P. 268 ; Jones v. Hodgkins, 61 Me. 480 ; Johnson v. Credit Lyonnais, L. 
 R. 3 C. P. D. 32. 
 
 « StoUenwerck ». Thatcher, 116 Mass. 224. See Johnson v. Credit 
 Lyonnais, L. E. 3 C. P. D. 32. 
 
 6 Sheppard v. Union Bank of London, 7 Hurl. & N. 661 ; Kingsford v. 
 Merry, 11 Ex. 577; 1 Hurl. & N. 503; Higgins v. Burton, 26 Law J. Ex. 
 342; Baines v. Swainson, 4 Best & Smith, 270. 
 
 511 
 
§ 318 Rights of bona fide purchasers, [ch. xxi. 
 
 In the next place, the scope of the protection to the ftona 
 fide purchaser will depend upon the language of the statute. 
 If the statute refers only to the factor's power to sell, it 
 will not protect the bona fide pledgee from the claims of 
 the owner of the goods.^ The factors may sell on credit,^ 
 and for almost any kind of valuable consideration, including 
 contemporary debts due to the factor ; but they cannot pass 
 a good title to another in satisfaction of the factor's pre- 
 existing indebtedness.^ 
 
 Finally, the fact that the principal has already sold the 
 goods does not prevent the factor from passing under these 
 statutes the good title to his purchaser, which he may en- 
 force against the purchaser from the principal, provided 
 the factor had at the time of sale in his possession either 
 the goods or documents of title.* 
 
 § 318. Documents of title. — In discussing the effect of 
 factor's acts on the rights of bona fide purchasers, frequent 
 reference is made to documents of title, and the possession 
 of them duly indorsed or transferred enables the factor to 
 pass a good title to the innocent purchasers, however de- 
 fective his own title and authority to sell may be. But it 
 is still an important question how far these documents of 
 title have the negotiable quality, independently of the 
 factor's acts ; and this question will be answered in the sub- 
 sequent paragraphs, reference being made to the negotia- 
 bility of certificates of stock, warehouse receipts, and bills 
 of lading. 
 
 1 DeWolf 11. Gardner, 12 Cush. 19; Michigan State Bankc. Gardner, 
 15 Gray, 374; Gray v. Agnew, 95 111. 315; Laussat v. Lippincott, 6 Serg. 
 & K. 391 ; Bott v. McCoy, 20 Ala. 578; Hazard v. Flske, 18 Hun, 277; s. c. 
 88 N. Y. 287; McCreary v. Gaines, 65 Tex. 485; Wrights. Solomon, 19 
 Gal. 64; Insurance v. Kiger, 103 U. S. 352. 
 
 " Pinkham v. Crocker, 77 Me. 563; Goodenow v. Tyler, 7 Mass. 36; 
 Greely v. Bartlett, 1 Me. 172. 
 
 ' Warner v. Martin, 11 How. 209. 
 
 * Jones V. Hodgkins, 61 Me. 480, 
 512 
 
CII. XXI. ] EIGHTS OF BONA FIDE PURCHASERS. § 319 
 
 § 319. Certificates of stock. — Certificates of stock are 
 classed as quasi-negotiahle instruments. But while some- 
 times the transferee takes a better right in and to the cer- 
 tificate of stock, than what his immediate transferrer had, 
 this arises from the application of other than the principles 
 of negotiability. Thus, if the owner of stock should in- 
 trust his agent with the possession of his certificates of 
 stock, payable to bearer, or indorsed in blank, any bona 
 fide purchaser from the agent would be able to assert a 
 superior title to that of the principal, although the agent had 
 fraudulently disposed of his property, and against his ex- 
 press instructions. This conclusion is reached by an ap- 
 plication of the general principle of agency, that the 
 principal is bound by all the acts of the agent which fall 
 within the apparent scope of his authority.^ 
 
 So, likewise, the purchaser of the certificate of stock, 
 who takes possession of the certificate, acquires a better 
 title than the prior purchaser of the same certificate, who 
 makes the purchase by formal agreement or otherwise, 
 without taking into his possession the muniment of title, 
 in the shape of the certificate. And this is true, even 
 though there has been a transfer of the shares to the first 
 purchaser on the books of the corporation.^ And, on the 
 
 1 Johnston v. Laflin, 103 U. S. 800; Cushman v. Thayer Mfg. Co., 76 
 N. Y. 371; Prall v. Tilt, 28 N. J. Eq. 480; Mt. Holly Turnpike Co. v. Fer- 
 ree, 2 C. E. Green, 117; Thompson v. Toland, 48 Cal. 99; Wood's Appeal, 
 92 Pa. St. 379; Burton's Appeal, 93 Pa. St. 214; Bridgeport Bank v. New 
 York, etc., R. R. Co., 30 Conn. 275; Duke v. Cahawba Co., 10 Ala. 82; 
 Fraser v. Charleston, 11 S. C. 486 ; Commercial Bank v. Kortright, 22 
 "Wend. 348; N. Y. & N. H. R. R. Co. u. Schuyler, 34 N. Y. 30; Leitch v. 
 Wells, 48 N. Y. 585; Moore v. Metropolitan Nat. Bank, 65 N. Y. 41; 
 Holbrook v. N. J. Zinc Co., 57 N. Y. 616; McNeil v. Tenth Nat. Bank, 46 
 N. Y. 325; Burrall v. Bushwick B. R. Co., 75 N. Y. 220; Rumball «. 
 Metropolitan Bank, 2 Q. B. Div. 194. 
 
 2 DriscoU V. W. Bradley, etc., C. M. Co., 59 N. Y. 96. See also Bank 
 V. Lanier, 11 Wall. 369; Holbrook v. N. J. Zinc Co., 57 N. Y. 616. But 
 see, contra, Shropshire Union R. & C. Co. o. The Queen, L. R. 7 H. L. 
 Gas. 496. 
 
 33 513 
 
I 319 EIGHTS OF BONA fiDE PURCHASERS. [cH. XXI. 
 
 other hand, if the corporation should make a transfer of 
 the shares on its books to the wrong party, without secur- 
 ing a surrender of the certificate, it would still be liable to 
 the rightful party for the shares of stock which his certifi- 
 cate calls for.i 
 
 But the general rule is that the purchaser of the certifi- 
 cates of stock gets no better title than what his vendor had ; 
 and if stock, which is payable to bearer or indorsed in blank, 
 is stolen or found, and unlawfully transferred to an inno- 
 cent purchaser for value the real owner may nevertheless 
 recover it.^ 
 
 The customary requirement that the transfer shall be 
 made on the books of the company is for the protection of 
 the corporation, and cannot affect the rights of purchasers 
 from the shareholder, who may acquire, as against every 
 one but the corporation, an absolute right of property iif 
 the stock by any of the common methods of assignment of 
 choses in action.^ But there are authorities which hold that 
 only by a transfer on the books of the company, where 
 that is the required mode of transfer, can the purchaser 
 claim a superior title to the stock against the creditors of 
 
 1 Cushman v. Thayer Mfg. Co., 67 N. Y. 267; Bank i>. Lanier, 11 Wall. 
 3P9; Smith v. Am. Coal Co., 7 Lans. 317. 
 
 2 Bereich v. Marye, 9 Nev. 312; Burton's Appeal, 93 Pa. St. 214 
 {semhle); Railroad v. Howard, 7 Wall. 415: "Written contracts are not 
 necessarily negotiable simply because, by their terms, they inure to the 
 benefit of the bearer. Doubtless the certificates were assignable, and 
 they would have been so if the word bearer had been omitted, but they 
 were not negotiable instruments in the sense supposed by the appel- 
 lants. Holders might transfer them but the assignees took them sub- 
 ject to every equity in the hands of the original owners." 
 
 ' Black V. Zacharie, 3 How. 483; Newberry v. Detroit, etc., Iron Co., 
 17 Mich. 141 ; Bank of Utica ii. Smalley, 2 Cowen, 770 ; Gilbert k. Man- 
 chester Mfg. Co., 11 Wend. 627; Sargent©. Essex Marine R. E. Co., 9 
 Pick. 202 ; Western v. Bear River, etc., Co., 6 Cal. 42S ; Commonwealth v. 
 Watmough, 6 Wheat. 139; Stebbins i>. Phoenix Ins. Co., 3 Paige, 350; 
 farmers' Bank v. Iglehart, 6 Gill, 50; Johnson v. Underhill, 52 N. Y. 203; 
 Farmers' Bank v. Wasson, 48 Iowa, 338; Johnston v. Laflin, 103 U. S. 
 804. 
 
 514 
 
CH. XXI. J EIGHTS OF BONA FIDE PURCHASERS. § 320 
 
 the transferrer. 1 But, as against the corporation, no trnns- 
 fer of a private nature is valid, unless there has been a cor- 
 responding transfer on the books of the corporation, in 
 accordance with the requirement of its by-laws, or the 
 provisions of its charter.^ 
 
 § 320. Warejiovise receipts. — During the last fifty 
 years, grain of all kinds has been handled by merchants in 
 bulk ; and, for the more convenient transportation and 
 transfer of the same, it is kept in bulk in public ware- 
 houses, called elevators, where all the grain received is 
 stored in large bins according to quality, and irrespective 
 of any prior ownership. Upon receiving the grain, the 
 warehouseman or elevator company issues documents, in 
 which the receipt of a certain quantity of grain of a certain 
 quality and kind is acknowledged, and the promise is made 
 to deliver it to the order of the depositor. These warehouse 
 receipts are taken by the depositor or the exchanges of the 
 cities as the representative of the grain itself ; and when the 
 grain, which they represent, is sold, the certificates are 
 transferred by indorsement and delivery, or by delivery 
 alone, if made deliverable to bearer or indorsed in blank. 
 And the title to the grain will be as effectually transferred, 
 as if the grain itself had been delivered. 
 
 Tn consequence of the reliance placed by the mercantile 
 world upon the absolute liability of the warehouseman on 
 
 1 Sabin v. Bank of Worcester, 21 Me. 353; Foster v. Essex. Bank, 5 
 Gray, 373; Pinkerton v. Manchester, etc., R. R. Co., 42 N. Y. 424; Peo- 
 ple's Bank v. Gridley, 91 111. 457. 
 
 2 Union Bank v. Laird, 2 Wheat. 390, Story, J. ; "No person can ac- 
 quire a legal tlt'e to any shares except under a regular transfer accord- 
 ing to the rues of the bank; and if any person takes an equitable 
 assignment, it must be subject to the rights of the bank under the act of 
 incorporation, of which he is bound to take notice." See also Brent v. 
 Bank of Washington, 10 Pet. 596 ; German Security Bank v. Jefferson, 10 
 Bush, 328; Rogers v. Huntington Bank, 12 Serg.& R. 73; Farmers' Bank 
 V, Iglehart, 6 Gill, 50. 
 
 515 
 
§ 320 EIGHTS OP BONA FIDE I'URCHASERS. [CH. XXt. 
 
 his receipt, a disposition has been manifested to apply the 
 principles of negotiable instruments to these receipts and 
 to give to the bona fide holder the same superior rights 
 as such a holder of bills and notes has. And in many of 
 the States, the same end has been attained by the enact- 
 ment of statutes. But independently of statute, it is very 
 generally held that the warehouse receipt is not a negotia- 
 ble instrument, the principal objection being that the 
 warehouse receipt calls for the delivery of goods, instead 
 of the payment of money. ^ The receipt is so far non-ne- 
 gotiable, that the warehouseman is not liable even to a 
 bona fide holder if his agent has issued a receipt without 
 getting possession of the goods. ^ But, on the other hand, 
 if the goods have been stored, and the warehouse receipt 
 has been rightfully issued, the warehouseman cannot de- 
 liver the goods to any one but the lawful holder of the re- 
 ceipt; and the warehouseman is liable to the holder of the 
 receipt, if the goods have been delivered to any one else, 
 without the production and surrender of the receipt prop- 
 erly indorsed.* 
 
 The warehouseman is not a guarantor of the title of 
 property placed in his custody, although his receipts there- 
 for are by statute negotiable.* 
 
 ' Second Nat. Bank v. Walbridge, 19 Ohio St. 419; Burton v. Curyea, 
 40 111. 320; Canadian Bank v. McCrea, 40 111. 281 (see Illinois statute 
 on the subject); Spangler v. Butterfleld, 6 Col. 356; Solomon ». Bush- 
 nell, 11 Oreg. 272 (50 Am. Rep. 475); Durr v. Harvey, 44 Ark. 301 (51 
 Am. Rep. 594) ; Louisville Bank v. Boyce, 78 Ky. 42; Griswold v. Haven, 
 25 N. Y. 595. But see Allen v. Maury, 66 Ala. 10; Fourth Nat. Bank v. 
 St. Louis Compress Co., 11 Mo. App. 333. 
 
 2 Second Nat. Bank v. Walbridge, 19 Ohio St. 419; Griswold v. Haven, 
 25 N. Y. 595; Burton ». Curyea, 40 111. 320; McBomie v. Spader, SThomp. 
 & C. 690; 1 Hun, 193. See contra McNeil v. Hill, 1 Woolw. C. C. 96. 
 
 8 Harris v. Bradley, 2 Dill. C. C. 284; Hale v. Milwaukee Dock Co., 
 29 Wis. 492; Shepardson v. Cary, 29 Wis. 34; Cral v. PhUips, 66 111. 
 216; Greenbaum ii. Majibben, 10 Bush, 419. But seeMortimore v. 
 dale, 62 Miss. 86. 
 
 < Mechanics', etc., Ins. Co, v. Kiger, 103 U. S. 352. 
 516 
 
CH. XXI.] RIGHTS OP BONA FIDK PUECHASEES. § 321 
 
 When a warehouseman, having in store a quantity of 
 wheat deposited by several persons, for which under the 
 statute he issues receipts to each depositor, fraudulently 
 disposes of part of the wheat, the receipt-holders must share 
 in what remains according to the equitable interest of each, 
 to be ascertained by an accounting.' 
 
 § 321 . Definition and nature of bills of lading. — A 
 
 bill of lading is very often called a negotiable instrument.^ 
 But, although it does possess some of the qualities of ne- 
 gotiability,^ it is not strictly one independently of statute, 
 and is more properly described as quasi-negotiable.* 
 
 The bill of lading may be defined to be a written ac- 
 knowledgment by a common carrier of the receipt of cer- 
 tain goods described therein, and an agreement to transport 
 them to their place of destination, to be there delivered in 
 good order to the consignee or his assigns. It has, there- 
 fore, a double character, it being both a receipt and (iontract 
 for the carriage of the goods.^ As a receipt, it has be- 
 come, under the influence of commercial custom, a symbol 
 of property, and passes title to the goods by delivery in 
 the same manner as if the goods were themselves deliv- 
 ered.' But so distinct and separate are the two characters 
 
 1 Daws V. Eckstone, 1 McCrary C. C. 434. 
 
 2 Lickbarrow v. Mason, 2 T. B. 63; Berkling v. Watling, 7 Ad. & E. 
 22; Bell v. Moss, 5 Whart. 189. 
 
 3 See post, § 323. 
 
 4 Gurney v. Behrend, 3 E. & B. 622; 22 L. J. Q. B. 265; Blanchard v. 
 Page, 8 Gray, 297; Davenport Nat. Bank i;. Homeyer, 45 Mo. 145; Na- 
 tional Bank V. Merchants' Nat. Bank, 91 U. S. 98; Barnard v, Campbell, 
 66 N. Y. 462. 
 
 6 Redfleld on Carriers, § 247; Knox v. The Nivella, Crabbe, 534; 1 
 Smith Lead. Cas. 879 et seq.; Haille v. Smith, 1 Bos. &Pul. 564; How- 
 ard V. Shepherd, 19 L. J. C. B. 248; Sanders v. Vanzeller, 12 L. J. Exch. 
 497. 
 
 ' Gardner v. Howland, 2 Pick. 599 ; Empire Trans. Co. u. Steele, 70 
 Pa. St. 190; Indiana, &c.. Bank ». Colgate, 4 Daly, 41; Newhall «. Cen- 
 tral Pac. R. R. Co., 51 Cal. 345; Newsom v. Thornton, 6 East, 41; Mears 
 
 517 
 
§ 322 EIGHTS OF BONA TIDE PURCHASERS. [CH. XXI. 
 
 of the bill of lading according to the common law, that the 
 assignee of the consignee could sue the common carrier for 
 refusing to deliver the goods, called for by the bill of 
 lading ; but he could not recover damages of the carrier 
 for refusing to transport them, the bill of lading, as an 
 agreement for the carriage of the goods, being according 
 to the common-law non-assignable,^ 
 
 The bill of lading, as a symbol of property, is exhausted 
 and becomes extinguished as soon as the goods have been 
 delivered by the common carrier to the proper party. Its 
 symbolical character is taken away by the delivery of the 
 goods; and thereafter the owner's title to the goods does 
 not rest upon the bill of lading, but upon the possession of 
 the goods. 2 
 
 § 322. Form and contents of the bill of lading. — The 
 
 bill of lading is usually issued in sets of three ; one being 
 retained by the common carrier, a second by the consignor, 
 and a third to be sent to the consignee. In case of any 
 variance between them in regard to terms, the contract is 
 to be interpreted according to the terms of the copies de- 
 livered to the consignor. The copy kept by the common 
 carrier cannot control the terms of the contract, since 
 it is but a mere memorandum in the hands of the carrier.' 
 But the number of copies is immaterial. There may be 
 four copies; * and yet there need not be more than one.* 
 
 V. Waples, 3 Houst. 582; Mower v. Peabody, 3 Kem. 121; Mechanics', 
 &c., Bank v. Farmers', &c., Bank, 60 N. Y. 47. 
 
 1 Haille v. Smith, 1 Bos. & Pul. 564; Thompson v. Downing, 14 L. J. 
 Bxch. 320; Howard v. Shepherd, 19 L. J. C. P. 248; Sanders v. Vanzel- 
 ler, 12 L. J. Exch. 49T. 
 
 2 Hatfield v. Phillips, 9 M. & W. 467; Mottram v. Heyer, 5 Denio, 632. 
 See Meyerstein v. Barber, L. E. 2 C. P. 661; 36 L. J. C. P. 361; First 
 Nat. Bank v. Kelly, 57 N. Y. 34; Helskell v. Farmers', &c.. Bank, 89 Pa. 
 St. 155. 
 
 3 The Thames, 14 Wall. 98. 
 
 * Lickbarrow v. Mason, 2 T. R. 63. 
 ' Dows V. Perriu, 16 N. Y. 325. 
 518 
 
CH. XXI. J EIGHTS OF BONA FIDE PUUCHASERS. § 322 
 
 Where there are three or more copies of the bill of 
 lading, all the copies together constitute but one contract 
 and but one obligation, so far as th6 common carrier is 
 concerned. And if the copies are transferred to different 
 parties, there can be but one claim for goods against the 
 carrier. In such a case, where the equities are equal, the 
 carrier must deliver to the one who first gets possession of 
 the copy bill of lading.^ 
 
 The bill of lading should contain a description of the 
 quantity and condition of the goods received, the marks 
 on the same, the names of consignor and consignee, the 
 places of shipment and discharge, and the price of the 
 freight. If any limitations upon the liability of the com- 
 mon carrier have been agreed upon between the parties, 
 they should also be expressed in the bill of lading. The 
 shipper and carrier are both bound by the express terms 
 of the bill of lading which is signed ; and its terms cannot 
 be varied by parol evidence of agreements, which are not 
 incorporated in the bill of lading.^ 
 
 Where the bill of lading acknowledges the receipt of 
 goods " in good order and well conditioned," it has refer- 
 ence only to their external condition, and is not a guaranty 
 of good condition internally.^ 
 
 The bill usually provides for the delivery of the goods to 
 a named consignee, the consignee being either the consignor 
 or some one else. The effect is the same, when the con- 
 signor has indorsed the bill to the person for whom the 
 goods were intended, as if the bill had been originally made 
 out in the name of this latter person.* And where the 
 
 1 Lamb v. Durrant, 22 Mass. 64; Stevens v. Boston, etc., R. R. Co., 8 
 Gray, 262; 1 Smith Lead. Cas. 891. 
 
 2 Gage V. Morse, 12 Allen, 410; Germania Fire Ins. Co. v. Memphis, 
 etc., R. R. Co., 72 N. Y. 90; Belger v. Dlnsmore, 51 N. Y. 166. 
 
 s Richards v. Doe, 100 Mass. 524; The Olbers, 3 Ben. 148; Hastings 
 V. Pepper, 11 Piclc. 43; The Oriflamme, 1 Saw. 176. 
 ' Walley v. Montgomery, 3 East, 585. 
 
 519 
 
§ 323 RIGHTS OF BONA FIDE PUKCHASERS. [CH. XXI. 
 
 place for the name of the consignee is left blank, it may be 
 subsequently filled up with the name of any one who law- 
 fully gets possession of the bill of lading.^ 
 
 § 323. Transfer of bill of lading — Its negotiability. 
 
 The bill of lading is transferable usually by indorsement, 
 and strictly only by the consignee.^ But where the con- 
 signor owns the goods and ships them on his own account, 
 the consignee is in fact, then, only his agent, and he can 
 by his own assignment of the bill of lading give a title to 
 the goods, which will prevail against every one but a bona 
 fide transferee of the consignee.^ 
 
 Delivery of the bill is as essential to pass title to the 
 goods as the indorsement.* And where the goods are 
 made by the bill deliverable to bearer, or where the bill of 
 lading has been indorsed in blank, the delivery of the bill 
 without any indorsement or other writing is all that is 
 necessary to pass the title to the goods. 
 
 Not only may the indorsement of the bill of lading be 
 made in blank, but it may also be made conditional or re- 
 strictive, and the indorsee takes it under those circum- 
 stances subject to the named conditions or restrictions.' 
 
 As has been stated in a previous paragraph, the bill of 
 lading is at common law only g'wasi-negotiable. Unlike 
 the bill of exchange, the transferrer of a bill of lading does 
 not give any better title to the goods to his transferee than 
 what he has himself, where he either found or stole the 
 bill, or bought it from one who had found or stolen it ; and 
 this is the case even where the bill of lading was indorsed 
 in blank, and transferred by delivery to an innocent pur- 
 
 1 2 Daniel's Negot. Inst., § 1736; Smith Mercantile Law, 377. 
 
 2 The Sally Magee, 3 Wall. 457. 
 
 3 Conrad v. Atlantic Ins. Co., 1 Pet. 445. 
 
 < Allen V. Williams, 12 Pick. 297; Buffington v. Curtis, 15 Mass. 
 528. 
 
 6 Barrow v. Coles, 3 Camp. 92 ; Walley v. Montgomery, 3 East, 585. 
 520 
 
CH. XXI. ] EIGHTS OF BONA FIDE PURCHASERS. § 323 
 
 chaser.^ But where the bill of lading has been actually 
 transferred by the real owner, but it was procured from 
 him through the fraud of the transferee, and the transferee 
 subsequently sold it to an innocent purchaser, the bona fide 
 purchaser obtains a good title to the same, and the defense 
 of fraud cannot be set up against him.^ 
 
 The bona fide transferee will however, in taking the bill 
 of lading, defeat the vendor's right of stoppage in transitu. 
 As long as the consignee retains the bill, the vendor's right 
 of stoppage in transitu still exists ; but as soon as the bill 
 of lading has been transferred to a bona fide holder for 
 value, this right is at an end.' But the right is not de- 
 stroyed or taken away by an assignment of the consignee's 
 title to the goods in any other way than by an indorsement 
 and transfer of the bill of lading. In such a case, the as- 
 signee will take the title of the assignor to the goods, sub- 
 ject to the vendor's right of stoppage in transitu^ 
 
 It hiis also been held that the bona fide transferee 
 acquires superior rights against the common cai'rier, in 
 that the carrier cannot dispute the correctness of the ac- 
 knowledgments contained in the bill of lading even though 
 the goods, which he acknowledged in the bill to have re- 
 ceived, had never been delivered to him." But the author- 
 
 1 Gurney v. Behrend, 2 El. & B. 622; 23 L. J. Q. B. 265; Dows v. 
 Perrin, 16 N. Y. 333; Moore v. Eobinson, 62 Ala. 537; Barnard v. Camp- 
 bell, 55 N. Y. 462; Brower v. Peabody, 3 Kern. 126; Shaw v. Railroad Co., 
 101 U. S. 557; Emery v. Irving Nat. Bank, 25 Ohio St. 255. See Voss v. 
 Robertson, 46 Ala. 483. 
 
 2 Pease «. Gloahec, 1 Privy C. App. 219; Dowsi7. Greene, 24 N. Y. 644. 
 
 3 Lickbarrow v. Mason, 1 Smith Lead. Cas. 895, 896; Dows u. Greene, 
 24 N. Y. 641; Becker v. Hallgarten, 86 N.Y. 167; Newhall v. Cent. P.R. 
 R. Co., 51 Cal. 345; Gurney v. Behrend, 2 El. & B. 622; Emery v. Ii-vlng 
 Nat. Bank, 25 Ohio St. 360. 
 
 * Holmes v. Crane, 2 Pick. 606; Craven v. Ryder, 6 Taunt. 433. 
 
 6 Armour v. Mich. Cent. R. R. Co., 65 N. Y. Ill ; Sioux City & P. R. R. 
 Co. y. First Nat. Bank, 10 Neb. 656; Savings Bank v. Atchison, etc., R. 
 R. Co , 20 Kan. 519. As between the original parties, and except as to 
 the bona fide transferee, the bill of lading is on\j prima facie evidence of 
 
 521 
 
§ 323 RIGHTS OF BONA FIDE PURCHASEKS. [CH. XXI. 
 
 ities are divided on this subject and we find the weight of 
 authority in favor of the proposition, that the carrier is not 
 bound on the bill of lading issued by a clerk for goods, 
 which had never been received by the carrier, since the 
 clerk was not authorized to execute and issue the bill of 
 lading except after the goods had been received. The 
 common carrier, according to the following authorities, 
 can set up the defense that the goods had never been re- 
 ceived by him, even against a bona fide transferee of the 
 bill of lading. 1 But if the goods are received by the car- 
 rier, the bill of lading will be conclusive of any other 
 acknowledgment which the bill might contain.^ And 
 where the bill is issued with a guaranty of the quantity, no 
 question can be raised as to that matter, since the state- 
 ments in the bill are conclusive.^ 
 
 The character of bills of lading is now regulated in very 
 many States by statute, and in some of the States bills of 
 lading are declared to be negotiable like other commercial 
 paper. Under those statutes, the bill of lading may be 
 expected to have all the characteristics of bills of exchange, 
 which affect their negotiability.* 
 
 the truth of its acknowledgments. The Lady Franklin, 8 Wall. 325; The 
 Delaware, 14 Wall. 579; Sears «. Wingate, 3 Allen, 103 ; Grace b. Adams, 
 100 Mass. 505; Dickenson ». Seelye, 12 Barb. 102; Meyer v. Peck, 28 N. 
 Y. .590; Abbe v. Eaton, 51 N. Y. 410; Bissell v. Campbell, 54 N. Y. 356; 
 Bates V. Todd, 1 Mood. & K. 106; Cox v. Peterson, 30 Ala. 608. 
 
 1 The Schooner Freeman v. Buckingham, 18 How. 182; Pollard v. 
 Vinton, 105 U. S. (1882) 7; Grant v. Norway, 20 L. J. C. P. 93; 10 C. B. 
 669; Hubbersty v. Ward, 18 Eng. L. & Eq. 551 ; McLean v. Flemming.L. 
 K. 2 S. App. 128 ; Coleman v. Riches, 29 Eng. L. & Eq. 323 ; Hall v. Mayo, 7 
 Allen, 456 ; Sears v. Wlngate, 3 Allen, 103 ; Bait. & O. R . R. Co. w. Wilkens, 
 44 Md. 11; Second Nat. Bank v. Walbridge, 19 Ohio St. 419; Union, 
 etc., K. E. Co. V. Yeager, 34 Ind. 1 ; Louisiana Bank v. Laveille, 52 Mo. 
 380; Fellows v. Steamer Powell, 16 La. Ann. 316; Hunt i). Miss. C. R. 
 E. Co., 29 La. Ann. 449; Dean v. King, 22 Ohio St. 136; Robinson v. 
 Memphis, etc., E. R. Co., 9 Fed. Eep. 129. 
 
 2 Sears v. Wlngate, 3 Allen, 103. 
 
 = Bissell V. Campbell, 54 N. Y. 353. 
 
 •* See Tiedeman v. Knox, 53 Md. 612; Hale c. Milwaukee, 29 Wis. 482; 
 522 
 
CH. XXI. J EIGHTS OF BONA FIDE PURCHASERS. § 324 
 
 § 324. Demand, when necessary. — To the question 
 whether demand of possession is necessary to be made of a 
 purchaser from one having no absolute title to the goods, 
 in order to make the retention of possession by the pur- 
 chaser an act of conversion of the property of the real 
 owner, two answers may be and are given, according to 
 the standpoint from which the matter may be considered. 
 
 If in the act of conversion there is involved to any 
 degree the element of criminal intent, or, to put it in a 
 clearer light, if it is necessary for one to know that ho is 
 retaining the property of another in order to be guilty of 
 conversion of the latter' s property to his own use, then a 
 bona fide purchaser is not liable for conversion, until the 
 real owner has demanded of the purchaser the possession 
 of the goods, and the latter has refused to give up the 
 possession. And this has been the ruling in several of the 
 States, particularly where the property has been pur- 
 chased from a bailee. ^ But if conversion consists alone in 
 the fact of appropriating to one's own use the personal 
 property of another, whether it was done knowingly or in- 
 nocently, then the offense of conversion is already conti- 
 mitted as soon as adverse possession is taken of the goods 
 
 Price V. Wisconsin Co., 43 Wis. 267; Erie Dispatch Co. v. St. Louis Co., 
 6 Mo. App. 172; Greenbaum v. Megibben, 10 Bush, 419; Mercliant's Bank 
 V. Union R. R. Co., 69 N. Y. 373. In Shaw v. Railroad Co., 101 U. S. 557, 
 it is held that although bills of lading are made by statute negotiable by 
 indorsement and delivery, it does not follow that they are given every 
 characteristic of negotiability which bills of exchange possess; audit 
 was there held that the boiia fide purchaser of a lost or stolen bill of 
 lading cannot claim any better title than what the finder or thief had. 
 
 1 Storm V. Livingston, 6 Johns. 44; Pierce v. Vandyke, 6 Hill, 618; 
 Twinam v. Swart, 4 Lans. 263 ; Marshall v. Davis, 1 Wend. 109 ; Nash v. 
 Mosher, 19 Wend. 431; Fuller v. Lewis, 13 How. Pr. 219; Wood v. 
 Cohen, 6 Ind. 465; Houston «.,Dyche, Meigs, 76; Sherry v. Piclien, 10 
 Ind. 375; Parker v. Middlebrook, 24 Conn. 207; Elyv. Ehle, 3 Comst. 
 506; Rawley v. Brown, 18 Hun, 456; Millspaugh v. Mitchell, 8 Barb. 333; 
 Barrett v. Warren, 3 Hill, 348. But see Bates v. Conkling, 10 Wend. 389; 
 Wells J) Raglan, 1 Swan, 501. 
 
 523 
 
§ 324 KIGHTS OF BONA FIDE PUECHASEES. [CH. XXI. 
 
 of another, and does not depend upon any refusal of the 
 real owner's demand for possession. Under this theory, 
 the conclusion would be that demand of possession is not 
 necessary to the liability for conversion, and such is the 
 ruling of the majority of the courts.^ If the bona fide 
 purchaser takes the property from a conditional vendee, in 
 which case the title remains in the vendor until the perform- 
 ance of the condition, it has been held that the necessity of 
 the demand will depend upon whether the transfer was made 
 before or after the breach of the condition, the demand 
 being necessar}^ in the first instance, and unnecessary in the 
 latter.^ But it has also been held to be necessai-y,^ and 
 unnecessary,* irrespective of the time of breach of the 
 condition. 
 
 It is very generally held that the conditional vendor may 
 without demand recover the property from the vendee's 
 attaching creditors. ^ 
 
 1 Stanley v. Gaylord, 1 Cush. 536; Chapman v. Cole, 12 Gray, 141; 
 Heckle u. Servey, 101 Mass. 344; Galvlni;. Bacon, 11 Me. 28; Freeman o. 
 Underwood, 66 Me. 229; Hyde v. Noble, 13 N. H. 494; Klford v. Mont- 
 gomery, 7 Vt. 411; Bucklin v. Beal, 38 Vt. 653; Harker v. Dement, 9 
 Gill, 7; Johnson v. White, 21 Miss. 484; Gibbs v. Jones, 46 HI. 319; 
 Oleson V. Merrill, 20 Wis. 487; Harpending v. Meyers, 55 Cal. 555; Ward 
 V. Carsan Elver Wood Co., 13 Nev. 44; Surles v. Sweeney, 11 Greg. 21; 
 Whitman Mining Co, v. Tritle, 4 Nev. 494; Eldred v. Oconto Co., 33 Wis. 
 133; Trudo v. Anderson, 10 Mich. 357; McNeil ». Arnold, 17 Ark. 154; 
 Eobinson v. McDonald, 2 Ga. 116; Deering v. Austin, 34 Vt. 330; Grant 
 ■0. King, 14 Vt. 367; Lovejoy v. Jones, 30 N. H. 164; Eodick v. Coburn, 
 68 Me. 170; Whipple u. Gilpatrick, 19 Me. 427; Parsons v. Webb, 8 
 Greenl. 38; Carter v. Kingman, 103 Mass. 617; Gilmore v. Newton, 9 
 Allen, 171; Eiley v. Boston Water Power Co., 11 Cush. 11. But, see Tal- 
 mage v. Scndder, 38 Pa. St. 517; Dunham v. Converse, 28 Wis. 306. 
 
 2 Whitney v. McConnell, 29 Mich. 12. 
 
 s Wheeler & Wilson M. Co. v. TeetzlafE, 53 Wis. 211; TufEts v. Mot- 
 tashed, 29 Up. Can. C. P. 639. 
 
 ■* Matthews v. Lucia, 55 Vt. 308; Stone v. Perry, 60 Me. 48; Everett 
 V. Hall, 67 Me. 497. 
 
 6 Hill u. Freeman, 3 Cush. 257 ; Stone v. Perry, 60 Me. 48. See Carter 
 V. Kingman, 103 Mass. 513; Gilmore v. Newton, 9 Allen, 171. 
 524 
 
CJI. XXI. J EIGHTS 01* BONA FIDE PUECHASEKS. § 325 
 
 § 325. Purchaser from one having a voidable or de- 
 feasible title — Sale upon condition subsequent and prec- 
 edent. — So far we have discussed the rights of bona fide 
 purchasers, who acquire the property in question from one 
 altogether lacking in title to the general property in the 
 goods, and as to them we have seen that good faith is of 
 no help in resisting the demands for possession of the real 
 owner. But a different rule prevails, where the present 
 title to the goods has passed to the vendee, subject to the 
 possibility of forfeiture for the breach of a condition. If 
 the condition is subsequent, as where the sale is made sub- 
 ject to revesting of title in the vendor or default in pay- 
 ment of the price, 1 or subject to the vendor's right of re- 
 purchase,* or subject to the vendee's right of return of the 
 goods, if they prove to be unsatisfactory ; * in any one of 
 these cases, the general property in the goods has passed to 
 the vendee, and the goods have then ceased to be the prop- 
 erty of the vendor. In view of this fact, it has been held 
 that a bona fide purchaser from such a vendee will not only 
 acquire whatever title the vendee [i.e., his vendor) had, 
 but also he will take it free from the condition subsequent, 
 of which he knows nothing.* 
 
 But if the condition is precedent, and the effect of the 
 contract of sale is that notwithstanding the delivery of the 
 goods to the vendee the title to the goods remains in the 
 vendor until the condition has been performed ; then, since 
 the vendee has not yet acquired the title to the goods and 
 
 1 See Lewis v. Palmer, Hill & D. Supp. 68; Chamberlain v. Dickey, 31 
 Wis. 68; South wick B. Smith, 29 Me. 228. 
 
 2 Hills V. Snell, 104 Mass. 173, 177. 
 
 3 Moss V. Sweet, 16 Q. B. 493; 20 Law J. Q. B. 167; Kay r. Thomp- 
 son, 12 Cush. 281; Hotchkiss v. Higgins, 52 Conn. 205; Perkins v. 
 Douglass, 20 Me. 317; Martin v. Adams, 104 Mass. 262; McKinnee v. 
 Bradley, 117 Mass. 321; Jameson v. Gregory, 4 Met. (Ky.) 363; Buswell 
 V. Bicknell, 17 Me. 344; Halls. iEtna Mfg. Co., 30 Iowa, 215; Schlesin- 
 ger«. Stratton, 9 K. I. 578. 
 
 < See post, § 326. 
 
 525 
 
§ 325 RIGHTS OT* BONA FIDF! PURCHASERS. [cH. XXI. 
 
 he may be said to be altogether without any general prop- 
 erty in the goods, as much so as the thief or a bailee for 
 hire or custody, it is but reasonable to hold that the bona 
 fide purchaser does not get any tit'e from him which he 
 may enforce against the claims of the conditional vendor. 
 And such is the ruling of the great preponderance of 
 authority not only where the condition was that the vendee 
 shall have the right to inspect and examine the goods, 
 subject to the right to return, if they did not prove satis- 
 factory,^ but, more particularly, where the condition is the 
 prepayment of the price. ^ But there are authorities to 
 
 1 See ante, § 213. 
 
 2 Harkness v. Russell, 118 TI. S. 663; In re Binford, 3 Hughes, 300; 
 Truman «. Hardin, 5 Sawy. 116; Gaylor v. Dyer, 5 Cranch C. C. 461; 
 Holman v. Lock, 51 Ala. 287; Fairbanks v. Eureka Co., 67 Ala. 109; Car. 
 roll v. Wiggins, 30 Ark. 402 ; McRae v. Merrifield, 48 Ark. 160 ; Mcin- 
 tosh v. Hill, 1 S. W. Rep. 680; s. c. 47 Ark. (1886) 363; Simpson b. 
 Shackleford, 4 S. W. Rep. 165; 49 Ark. 63; Kohler r. Hayes, 41 Cal. 
 455; Hegler ». Eddy, 53 Cal. 597 ; Sere ». McGovern, 65 Cal. 244; Forbes 
 V. Marsh, 15 Conn. 384; Cragin ». Coe, 29 Conn. 51; Brown v. Fitch, 43 
 Conn. 512; Appleton ». Norwalk Library Co., 53 Conn. 4; Goodwin i;. 
 May, 23 Ga. 205; Sims 17. James, 62 Ga. 260; Augier i). Taunton Paper 
 Co., 1 Gray, 621; Brotrn v. Hayes, 52 Me. 278; Sanders v. Keser, 28 
 Ohio St. 630; Porter v. Pettlngill, 12 N. H. 299; Fleck v. Warner, 25 
 Kan. 492; Solomon n. Hathaway, 126 Mass. 482; Duke ». Shackleford, 
 56 Miss. 652; Sage c. Sleutz, 23 Ohio St. 1; Colcord v. McDonald, 128 
 Mass. 470; Chisora v. Hawkins, 11 Ind. 316; Shireman v. Jackson, 14 
 Ind. 459; Hanway u. Wallace, 18 Ind. 377; Dunbar v. Rawles, 28 Ind. 
 225; Hodson i). Warner, 60 Ind. 214; Domestic Sewing Machine Co. ». 
 Arthurhultz, 63 Ind. 325; Bailey©. Harris, 8 Iowa, 331; Baker ■». Hall, 
 15 Iowa, 277; Mosely v. Shattuck, 43 Iowa, 640; Hollowell v. Milne, 16. 
 Kan. 65; Sawyers. Shaw, 9 Greenl. 47; Whipple «. Gilpatrick, 19 Me. 
 427; Sawyer D. Fisher, 32 Me. 28; Hotchkiss ». Hunt, 49 Me. 219; Allen 
 V. Delano, 65 Me. 113; Bunker v. McKenny, 63 Me. 529; Couse v. Tre- 
 gent, 11 Mich. 65; Dunlap v. Gleason, 16 Mich. 158; Johnson, v. Whitte- 
 more, 27 Mich. 463; Deyoe «. Jamison, 33 Mich. 94; Marquette Mfg. Co. 
 «. JefCery, 49 Mich. 283; Parmolee v. Catherwood, 36 Mo. 479; Ridgeway 
 V. Kennedy, 52 Mo. 24; Fosdick u. Schall, 99 U. S. 235; Mounts. Har- 
 ris, 1 Sm. & M. 185; Heinbockle v. Zugbaum, 6 Mont. 344; Aultman ». 
 Mallory, 6 Neb. 178; Cardinal v. Edwards, 5 Nev. 36; Davis v. Emery, 
 11 N. H. 230; McFarland v. Farmer, 42 N. H. 386; King v. Bates, 67 N. 
 H. 446; Cole V. Berry, 42 N. J. L. 308; Rede will ». Gillen, 12 Pac, Rep. 
 
 526 
 
CH. XXI.] RIGHTS Ol? BONA FIDE PURCHASERS. § 325 
 
 the contrary, which maintain that the bona fide purchaser 
 from a conditional vendee taiies a perfect title free from 
 the condition, whether it is subsequent or precedent. ^ 
 Some of the cases only hold the condition good against at- 
 taching creditors, and are either doubtful about subvendees,^ 
 or expressly hold that the condition is invalid as to the lat- 
 ter,* In New York, the authorities are in an almost hopeless 
 
 (N. M.) 872; Ellison v. Jones, 4 Ired. 48; Clayton v. Hester, 80 N. C. 
 275; Call ». Seymour, 40 Ohio St. 670; Singer Machine Co. v. Graham, 
 8 Oreg. 17 ; Kosendorf v. Hirschberg, 8 Oreg. 240 ; Goodell ». Fairbrother, 
 12 R. I. 23^; Reeves v. Harris, 1 Bailey, 56,^; Gambling v. Read, Meigs, 
 281; Buson v. Dougherty, 11 Humph. 50; Harding v. Meitz, 1 Tenn. Ch. 
 f.lO; Sinker t). Comparet, 62 Tex. 470; City Nat. Banli i>. Tufts, 63 Tex. 
 113; BigelowB. Huntley, 8 Vt. 151; Kent v. Buck, 45 Vt. 18; Grants;. 
 King, 14 "Vt. 367; Davis v'. Bradley, 24 Vt. 65; Buckmaster v. Smith, 22 
 Vt. 203; Armington ». Houston, 38 Vt. 448; Child v. Allen, 33 Vt. 476; 
 Clark V. Wells, 45 Vt. 4 ; Stevenson v. Rice, 24 Up. Can. C. P. 245; Tufts 
 V. Mottashell, 29 Up. Can. 539; Mason v. Bickle, 2 Ont. App. 291; 
 "Walker u. Hyman, 1 Ont. App. 345; Mason ». Johnson, 27 Up. Can. C. 
 P. 208; Price v. Jones, 3 Head, 84; Bradshaw ». Thomas, 7 Yerg. 497; 
 Vasser v. Buxton, 88 N. C. 339 ; Parris v. Roberts, 22 Ired. 268 ; Marvin's 
 Safe Co. V. Norton, 48 N. J. L. 410; Weeks i). Pike, 00 N. H. 447; Kimble 
 V. Jackmau, 42 N. H. 242; Lucy i>. Bundy, 9 N. H. 298; Ketchum v. Bren- 
 nan, 53 Miss. 597; Little v. Paige, 44 Mo. 412; Smith v. Lozo, 42 Mich: 
 C; Fiflelds. Elmer, 25 Mich. 48; Cardinal v. Bennett, 52 Cal. 416; Put- 
 nam «. Lamphier, 36 Cal. 151; Leigh v. Mobile, &c., R. R. Co., 58 Ala. 
 165; The Marina, 19 Fed. Rep. 160; Hemans v. Newton, 4Fed. Rep. 880; 
 Copland v. Bosquet, 4 Wash. C. C. 588. 
 
 1 See Vaughan v. Hopson, 10 Bush, 337 (overruling Patton v. Mc- 
 Cane, 15 B. Mon. 555); Greer v. Church, 13 Bush, 430; Hall v. Hinks, 
 21 Md. 406; Butler ■». Gannon, 53 Md. 333; Martin v. Mathicot, 14 Serg. 
 & R. 214; Haakv. Linderman, 64 Pa. St. 499; Brunswick, &c., Co. ■«. 
 Hoover, 95 Pa. St. 508; Cochran v. Boundtree, 3 Strobh. 217; Old Do- 
 minion, &c., Co. V. Burckhardt, 31 Gratt. 664; Forrest v. Nelson, 108 Pa. 
 St. 481; StadtfieldB. Huntsman, 92Pa. St. 53; Rose i>. Story, 1 Pa. St. 190. 
 
 2 McCormick v. Hadden, 37 111. 370; Murch v. Wright, 46 111. 487; 
 Mich. Cent. R. R. Co. v. Phillips, 60 111. 190; Lucas v. Campbell, 86 111. 
 447; Van Duzor v. Allen, 90 111. 499. The condition has been held good 
 against subvendees, in Jennings v. Gage, 13 111. 610, but invalid against 
 them in Brundage v. Camp, 21 111. 330. See Fosdick ii. Schall, 99 U. S. 
 235; Hervey v. R. I. Locomotive Works, 93 U. S. 664. 
 
 3 Williams v. Connoway, 3 Houst. 63, attaching creditor; Mears v. 
 ■Waples, 4 Houst. 62, 
 
 527 
 
§ 325 EIGHTS OF BONA FIDE PURCHASERS. [CH. XXI. 
 
 confusion, but by reading between the lines, it is believed 
 that the New York courts may be pronounced to be in favor 
 of the majority rule,^ except that they are more inclined 
 to hold a delivery of the goods to be a waiver of the con- 
 dition of the prepayment of the price, and require, in order 
 to prevent such a waiver, an express and explicit provision 
 that the title is not to pass to the vendee with the delivery.^ 
 But in many of the States, including New York,^ this mat- 
 ter is now regulated by statute, some of the statutes pro- 
 viding that to be enforcible against bona fide purchasers, 
 the condition must be reduced to writing,* while in other 
 States, the condition is required to be recorded.^ 
 
 But the subsequent purchaser from the conditional vendee 
 will get whatever title the vendee had. Hence he will be 
 entitled to hold the possession against the demands of the 
 vendor, until there has been a breach of the condition ; ^ 
 and by his performance or by the vendor's waiver of the 
 condition, he can acquire an absolute title from the vendor, 
 
 1 See Ballard o. Burgett, 40 N. Y. 314; Hasbrouck ii. Lounsbnry, 2fi 
 N. Y. 598; Cole v. Mann, 62 N. Y. 1 ; Boon v. Moss, 70 N. Y. 473; Puffer 
 V. Keeve, 35 Hun, 480; Austin v. Dye, 46 N. Y. 500. 
 
 2 See Comer v. Cunningham, 77 N. Y. 391; Wait v. Green, 36 N. Y. 
 556; Smith?;. Lynes, 6 N. Y. 41; Parker v. Baxter, 86 N. Y. 587; Dows 
 V. Kidder, 14 N. Y. 128; Kaals v. Deshler, 3 Keyes, 572; Hintermister v. 
 Lane, 27 Hun, 497. 
 
 ^ See Stat. 1884, ch. 315, and Stat. 1885, ch. 488. 
 
 * Mass. St. 1884, ch. 313; Sooth Carolina, Statute of 1843. 
 
 5 Iowa Code, § 1922. See Pash v. Weston, 52 Iowa, 675 ; Budlong v. 
 Cottrell, 64 Iowa, 234; Kentucky, Gen. St., ch. 24, § 10; Barney v. Smith 
 Mfg. Co., 22 Eep. (Ky.) 782; Maine, Rev. St., ch. Ill, § 5. In Maine, 
 the provision requires the condition to be inserted in the note given for 
 the purchase money, and if the price of the goods is over $30, then the 
 condition must be recorded. See Boynton «. Libby, 62 Me. 283 ; Mis- 
 souri, Rev. Stat. (1879), § 2507; Nebraska, law of 1877; Vermont, Whit- 
 comb i;. Woodworth, 54 Vt. 544; Collender Co. ■». Marshall, 67 Vt. 232; 
 unless the purchaser has liad actual notice. Kelsey v. Kendall, 48 Vt. 24. 
 
 ' Newhall u. Kingsbury, 131 Mass. 445; Vincent v. ConneU, 13 Pick. 
 294; Lambert v. McCloud, 63 Cal. 162; Hiird v. Fleming, 34 Vt. 169^; 
 Fairbank ii. Phelps, 22 Pick. 532. But see, contra, Sims v. James, 62 Ga. 
 260; Bigelow v. Huntley, 8 Vt. 159. 
 526 
 
CH. XXI.] RIGHTS OF BONA FIDE PUECHASEES. § 326 
 
 as effectually as the original vendee.* Whether the con- 
 dition is broken or not, the snb vendee has sufficient title to 
 recover the full value of the goods from one, who has 
 wrongfully taken them away.^ But if the price was to 
 have been paid in installments, and the breach occurred in 
 the payment of one of the later installments, the subvendee 
 cannot require the return to him of the installments already 
 paid. These are forfeited by the breach of the condition,* 
 and the vendor can recover of the subvendee, without of- 
 fering to return these installments, which he has received.* 
 
 § 326, Purchaser from the mortgagee of a chattel mort- 
 gage. — As has already been explained,® a chattel mortgage 
 is held by most of the courts to be a sale upon condition 
 subsequent, the condition being the payment of a debt; and 
 the chattel mortgage is treated to such an extent as a con- 
 ditional sale as that it is very difficult at times to distin- 
 guish it from the conditional sale with the right to repur- 
 chase.* Inasmuch as the conditional title of the mortgagee 
 becomes absolute upon default in the payment of the debt, 
 the mortgagee is in consequence entitled to take possession 
 and sell the property on the strength of his legal title, 
 transferring to the purchaser an absolute title against the 
 mortgagor and the subsequent incumbrancers.' S o far the 
 question is easy of solution. But the question is difficult to 
 
 1 Day V. Bassett, 102 Mass. 445; Currier v. Knapp, 117 Mass. 324; 
 Carpenter v. Scott, 13 K. I. 477; Chase v. Ingalls, 122 Mass. 881; Cromp- 
 ton ». Pratt, 105 Mass. 255. 
 
 2 Harrington v. Kings, 121 Mass. 269. 
 
 3 See ante, § 210. 
 
 4 Angler v. Taunton Paper Co., 1 Gray, 621; Brown v. Hayes, 62 Me. 
 678; Sanders v. Keser, 28 Ohio St. 630; Porter v. Pettingill, 12 N. H. 299; 
 Fleck V. Warner, 28 Kan. 492; Duke v. Shackelford, 56 Miss. 552; 
 Hughes II. Kelley, 40 Conn. 148; Sage v. Sleutz, 23 Ohio St. 1; Colcord v. 
 McDonald, 128 Mass. 470. 
 
 6 §§, 221, 222. 
 
 « See ante, § 224. 
 
 ' See post, §§248,250. 
 
 34 529 
 
§ 327 RIGHTS OF BONA FIDE PLKCHASER8. [CH. XXI. 
 
 answer whether a bona fide purchaser before default gets 
 any better title than the mortgagee had, whom the purchaser 
 has treated in good faith as the absolute owner of the prop- 
 erty. If the mortgage has been recorded, and the posses- 
 sion has been retained by the mortgagor, as is usual, the 
 purchaser cannot claim to be anything more than the as- 
 signee of the mortgage, and acquires his rights and nothing 
 more.* But if the mortgagee has possession before condi- 
 tion broken, to which he is entitled at common law, unless 
 it has been expressly reserved to the mortgagor,* it would 
 seem, ifi accordance with the rule laid down in the preced- 
 ing section,* in respect to sales upon condition subsequent, ■ 
 that the bona fide purchaser from the mortgagee in posses- 
 sion would get a title which he could enforce against the 
 mortgagor. A chattel mortgage only differs from a sale with 
 the right to repurchase in that the mortgagor has the right 
 to redeem the mortgage, even after condition broken,* and 
 it has been held that the bona fide purchased from the con- 
 ditional vendee, in a sale with the right to repurchase, gets 
 a perfect title to the gopds, so far as the conditional vendor 
 is concerned.^ But it does not appear that the courts 
 have ever been called upon to decide the rights of bona 
 fide purchasers from a mortgagee in possession and before 
 default, and the conclusion must rest upon argument by 
 analogy. 
 
 § 327. Purchaser from fraudulent vendee. — Inasmuch 
 as the fraudulent vendee acquires the title subject to its 
 avoidance by the vendor for the fraud, a defeasible title in 
 other words,* it is now universally held that a bona fide 
 
 1 See ante, § 246. 
 
 2 See ante, § 241. 
 
 3 See ante, § 325. 
 
 * See ante, §§ 204, 219, 224. 
 5 Hills V. Snell, 104 Mass. 173, 177. 
 
 « Rowley v. Bigelow, 12 Pick. 307; Paige v. O'Neal, 12 Cal. 483; 
 530 
 
CH. XXI.] RIGHTS OF BONA FIDE PURCHASERS. § 327 
 
 purchaser from the fraudulent vendee will take the title 
 free from its defect on account of the vendee's fraud, and 
 that he may hold it against the claims of the defrauded 
 vendor.^ Some of the earlier authorities, both American 
 
 Cochran v. Stewart, 21 Minn. 435; Rice v. Cutler, 17 Wis. 362; Shufeldt 
 V. Pease, Ifi Wis. 659; Sliarp v. Jones, 18 Ind. 314; Wilson v. Puller, 9 
 Kan. 76; Hawkins t>. Davis, 5 Baxt. 698; Arendale i>. Morgan, 5 Sneed, 
 703; Lee v. Portwood, 41 Miss. 109; Kern v. Thurber, 57 Ga. 172; Will- 
 iamson V. Eussel, 39 Conn. 406; Thompson v. Kose, 16 Conn. 71; Wil- 
 loughby c. Moulton, 47 N. H. 205; Neal v. Williams, 18 Me. 391 ; Load v. 
 Green, 15 M. & W. 216 ; Oakes v. Turquand, L. R. 2 App. Cas. 326 ; Clougli 
 V. London, &c., Co., L. R. 7 Ex. 26; Morrison v. tTniv. Marine Ins. Co., 
 L. R. 8 Ex. 197; Reese River Mining Co. v. Smith, L. R. 4 App. C. 64; 
 Stevenson v. Nevraham, 13 C. B. 285 ; Powell v. Hoyland, 6 Ex. 67. 
 
 1 Neal V. Williams, 18 Me. 391; Titcomb v. Wood, 38 Me. 663; Kings- 
 bury V. Smith, 13 N. H. 109; Thompson v. Rose, 16 Conn. 71; Williamson 
 V. Russel, 39 Conn. 406; Hoffman v. Noble, 6 Met. 68; Moody v. Blake, 
 117 Mass. 23; Sargent v. Stum, 23Cal. 359; Ohio, &c., Co. v. Kerr, 49 111. 
 458; Chicago Dock Co. v. Foster, 48 111. 507; Gibson v. Moore, 7 B. 
 Mon. 92; Powell u. Bradlee, 9 Gill & J. 220; Sinclair «. Healey, 40 Pa. 
 St. 417; Thompson v. Lee, 3 Watts & S. 479; Ditson v. Randall, 33 Me. 
 202; Sparrow v. Chesley, 19 Me. 79; Trott v. Warren, 11 Me. 227; Paige 
 c. O'Neal, 12 Cal. 483; Wilson u. Fuller, 9 Kan. 76; Rice ??. Cutler, 17 
 Wis. 362; Hutchinson v. Watkins, 17 Iowa, 475; Claflln ij. Cottman, 77 
 Ind. 58; Sharp v. Jones, 18 Ind. 314; Henson v. Westcott, 82 111. 224; 
 Holland v. Swain, 9+ 111. 154; Combes v. Chandler, 33 Ohio, 178; Woodu. 
 Yeatman, 15 B. Mon. 271; Gage u. Epperson, 2 Head, 669; Arendale v. 
 Morgan, 6 Sneed, 703; Lee v. Portwood, 41 Miss. 109; Nicol v. Critten- 
 den, 55 Ga. 497; Wickham v. Martin, 13 Gratt. 427; Hears v. Waples, 3 
 Houst. 681; 4 Houst. 62; Stevens v. Brennan, 79 N. Y. 254; Devoe w. 
 Brandt, 63 N. Y. 462; Crocker v. Crocker, 31 N. Y. 607; Ash v. Putnam, 1 
 Hill, 307; Beaver v. Lane, 6 Duer, 232; Caldwell v. Bartlett, 3 Duer, 341; 
 Keyser v. Harbeck, 3 Duer, 373; Saltus v. Everett, 20 Wend. 267; Root v. 
 French, 13 Wend. 570; Easter v. Allen, 8 Allen, 7; Rowley v. Bigelow, 12 
 Pick. 307; Lynch v. Beecher, 38 Conn. 490; Willoughby c. Moulton, 47 
 N. H. 205; Lee v. Kimball, 45 Me. 172; White v. Garden, 10 C. B. 919; 
 ■Kingsford v. Merry, 11 Exch. 577; Attenborough o. London & St. Kath- 
 erine's Dock Co., L. R. 3 C. P. D. 450; 47 L. J. C. P. 763; Pease ». 
 Gloahee, L. R. 1 P. C. 220; s. c. 3 Moore P. C. (n. s.) 566; Bab- 
 cock V. Lawson, L. R. 4 Q. B. D. 394; Mowrey u. Walsh, 8 Cow. 238; 
 Andrews v. Dietrich, 14 Wend. 34; Hoffman v. Carew, 22 Wend. 318; 
 Smith V. Lynes, 1 Seld. 46 ; Fassett v. Smith, 23 N. T. 252 ; Paddon •;;. 
 Taylor, 44 N. Y. 371; Barnard ». CampDell, 65 Barb. 286; s. o. 68 N. Y. 
 73; Hall v. Hinks, 21 Md. 406; Williams v. Given, 6 Gratt. 268; Old Do- 
 
 531 
 
§ 329 RIGHTS or BONA FIDE PURCHASERS. [CH. XXI. 
 
 and English, held that the fraudulent vendee acquires no 
 title whatever.^ But either later authorities have overruled 
 these earlier cases, or the same result, so far as the bona fide 
 purchaser is concerned, is attained by holding that the 
 vendor is estopped from setting up his title to the goods 
 against a bona fide purchaser, on the ground that he, the 
 vendor, has invested the vendee with the possession and ap- 
 parent ownership of the goods, and must suffer from this 
 misplaced confidence, rather than the innocent purchaser, 
 who has been misled in his reliance upon the fraudulent 
 vendee's apparent ownership of the goods. ^ 
 
 § 328. Purchaser of vendor, in fraud of creditors. — 
 
 This subject has been already treated fully in another 
 place, ^ and need not be discussed again. 
 
 § 329. Who are bona fide purchasers. — In order that 
 one may claim to be a bona fide purchaser, three things 
 must be established. 
 
 First, he must show that he has acquired an interest in 
 the property by voluntary or involuntary transfer from 
 
 minion S. S. Co. ■». Burckhardt, 31 Gratt. 664; Kern v. Thurber, 57 Ga. 
 162; Larkin u. Eckwurzel, 42 Ala. 322; Hawkins v. Davis, 5 Baxt. 698; 
 s. c. 8 Baxt. 506; Arnott v. Cloudas, 4 Dana, 300; Dean v. Yates, 22 Ohio 
 St. 388; Van Duzer v. Allen, 90 111. 499; McNab v. Young, 81 111. 11; 
 Dickson v. Evans, 84 111. 451; Bell o. CafEerty, 21 111.411; Cochrane. 
 Stewart, 21 Minn. 435; Shnfeldt v. Pease, 16 Wis. 689; Singer Co. ». 
 Sammons, 49 Wis. 316; Wineland v. Coonce, 6 Mo. 296. 
 
 1 Ash 11. Putnam, 1 Hill, 303; Cary v. Hotailing, s. c. Olmstead v. Ho- 
 tailing, 1 HUl, 311, 317; Butleri). Collins, 12 Cal. 457; Amer v. Hightower, 
 70 Cal. 440; Mowrey v. Walsh, 8 Cow. 238; Koot». French, 13 Wend. 
 570; Hall v. Hinks, 21 Md. 417; Martin v. Pewtress, 4 Burr. 2478; Glad- 
 stone V. Hadwen, 1 Maule & S. 517; Earl of Bristol v. Willsmore, 1 Barn. 
 & C. 514 ; Duff V. Budd, 3 Bred. & B. 177; Irving v. Motley, 7 Bing. 643. 
 
 2 Barnard v. Campbell, 65 Barb. 286; s. c. 65 N. Y. 466; s. c. 58 N. Y. 
 73. See Saltus v. Everett, 20 Wend. 279; Dowsb. Kush, 28Barb. 167; 
 Combes ». Chandler, 33 Ohio St. 184; Craig v. Marsh, 2 Daly, 61; Mal- 
 com V. Loveridge, 13 Barb. 372 ; Cochran o, Stewart, 21 Minn. 435; Hall v. 
 Hinks, 21 Md. 417. 
 
 » See ante, g 174. 
 532 
 
CH. XXI. J RIGHTS OF BONA riDlC PLKCHAbERS. § 329 
 
 the former owners. But it is not necessary that the inter- 
 est acquired should be an absolute one. It may be qualified, 
 and to the extent of his interest, the claim of being a bona 
 fide purchaser can be made good by pledgees,^ brokers and 
 factors,' common carriers and other bailees, in their repre- 
 sentative capacity as well as on account of their own in- 
 terests in the goods. ^ 
 
 In the second place, the interest must be acquired for a 
 valuable consideration. Some thing of value must be 
 parted with,* or some contingent liability like a guaranty, 
 acceptance or indorsement, must be assumed by the party 
 acquiring the interest in the goods.® 
 
 Although there are a few cases which maintain that a 
 pre-existing debt is a sufficient consideration to make an 
 attaching creditor a bona fide purchaser," the better opinion 
 is that it is not sufficient because there is no parting with 
 value in reliance upon the title to the goods thus acquired,' 
 
 1 Attenborough 17. London, etc., Dock Co., L. R. 3C. P. D. 450; Thrall 
 V. Lathrop, 30 Vt. 307 ; Babcock v. Lawson, L. K. 4 Q. B. D. 394 ; s. c. 5 
 Q. B. D. 284 ; Carpenter v. Hale, 8 Gray, 157 ; Arendale v. Morgan, 5 
 Sneed, 703. 
 
 2 Fowler v. Hollins, L. E. 7 Q. B. D. 616 ; Newcomb-Buchanan Co. v. 
 Baskett, 14 Bush, 668. 
 
 8 Hall V. Hlnks, 21 Md. 206 ; Caldwell v. Bartlett, 3 Duer, 341 ; Old 
 Dominion S. S. Co. y. Burckbardt, 31 Gratt. 664; Attenborough v. Lon- 
 don, etc.. Dock Co., L. R. 3 C. P. D. 450; Pease v. Gloahee, L. R. 1 P. C, 
 220 ; Keyser v. Harbeck, 8 Duer, 373. 
 
 * Hears v. Waples, 3 Houst. 681; Hoffman v. Noble, 6 Met. 68; Atten- 
 borough V. London, etc., Dock Co., L. R. 3 C. P. D. 450; Ohio, etc., 
 Co. V. Kerr, 49 HI. 458; Chicago Dock Co. v. Foster, 48 111. 607; Dows 
 V. Rush, 28 Barb. 157; Hall v. Hinks, 21 Md. 406. 
 
 * Wood V. Yeatman, 15 B. Mon. 271; Barnard v. Campbell, 58 N. Y. 
 73; Caldwell ?). Bartlett, 3 Duer, 341. One is not a ftoreoj^de purchaser 
 because he has given notes for the purchase-money, until he has been 
 forced to pay something on them to the holder. Matson v. Melchor, 42 
 Mich. 477. 
 
 « Shufeldtc. Pease, 16 Wis. 685; Rice v. Cutler, 17 Wis. 362; Butters 
 V. Haughwoot, 42 111. 18. SeeTitcomb b. Woods, 38 Me. 563; Pease v. 
 Gloahee, L. B. 1 P. C. 220. 
 
 ' Weaver v. Barden, 49 N. Y. 286; Stevens v. Brennan, 79 N. Y. 254, 
 
 533 
 
§ 321) RIGHTS OF BONA FIDK PURCHASERS. [CH. XXI. 
 
 and that an attaching or other creditor is not a bona fide 
 purchaser,^ unless the debt was incurred subsequently and 
 upon the credit of the goods,^ or some thing of value has 
 been given in the way of security, such as notes in con- 
 sideration of the transfer of property ; ^ or where addi- 
 tional property is given to the transferrer as part con- 
 sideration of the transfer.* And the same rule. has been 
 applied to assignees in bankruptcy,^ and assignees for the 
 benefit of creditors.* 
 
 Finally, the purchaser must take the goods in good faith 
 and without notice of the defect in his vendor's title.' But 
 not only must he be without knowledge of the defect, but 
 he must not even know facts which are calculated to arouse 
 the suspicion of a reasonably prudent man that everything 
 
 Hyde v. EUery, 18 Md. 496; Fletchers. Drath, 66 Mo. 126; Sargent w. 
 Sturm, 23 Cal. 359; Boot v. French, 13 Wend. 570; Farley b. Lincoln, 
 SI N. H. 577; Adams v. Smith, 5 Cow. 280; Devoe v. Brandt, 53 N. T. 
 462; Nelson v. Rockwell, 14 111. 375; Pipers. Elwood, 4 Denio, 195; Eope 
 V. Pope, 40 Miss. 516 ; Poor v. Woodburn, 25 Vt. 285; Barnard ». Camp- 
 bell, 58 N. Y. 73, 76. 
 
 1 Jordan v. Parker, 56 Me. 557; Poori;. Woodburn, 25 Vt. 234; Field 
 V. Stearns, 42 Vt. 106; Wiggin ». Day, 9 Gray, 97; Oswego Starch Fac- 
 tory V. Lendrum, 57 Iowa, 573^ Atwood v. Dearborn, 1 Allen, 483; 
 American, etc.. Express Co. v. Willsie, 79111. 92; Whitman ». Merrill, 
 125 Mass. 127 ; Naugatuck Cutlery Co. v. Babcock, 22 Hun, 481 ; Bufflng- 
 ton V. Gerrish, 15 Mass. 158; Bradley v. Obear, 10 N. H. 477; Hackett v. 
 Callender, 32 Vt. 97; Fitzsimmons v. Joslin, 27 Vt. 129; Mowry v. 
 Walsh, 8 Cow. 245; Sargent v. Sturm, 23 Cal. 359; Devoe v. Brandt, 63 
 N. Y. 462. 
 
 2 Thompson v. Rose, 16 Conn. 71; Bradley v. Obear, 10 N. H. 477. 
 
 3 Paddon v. Taylor, 44 N. Y. 371. 
 
 * Kingsbury v. Smith, 13 N. H. 109. 
 
 « Montgomery v. Bucyrus Machine Works, 92 U. S. 257; Donaldson 
 V. Farwell, 93 U. S. 631. 
 
 6 Belding v. Frankland, 8 Lea, 67, 72; Ratcliffe v. Langston, 18 Md. 
 383, 390; Bussing v. Rice, 2 Cush. 48; Farley v. Lincoln, 51 N. H. 579. 
 But see Gibson v. Moore, 7 B. Mon. 92; Barrett v. Warren, 3 Hill, 350. 
 
 ' Lynch ». Beecher, 38 Conn. 490 ^ Allison v. Matthiew, 3 Johns. 235; 
 Meacham v. Collignon, 7 Daly, 402 ; Ratean v. Bernard, 3 Blatchf . 244 ; 
 Stearns v. Gage, 79 N. Y. 102. 
 534 
 
CH. XXI.] RIGHTS OF BONA FIDE PURCHASERS. § 329 
 
 was not right.^ And he is a bona fide purchaser only to the 
 extent of the consideration which he has transferred before 
 learning of the defect of title. He cannot claim to be a 
 bona fide holder as to the consideration which he transfers 
 after knowledge of the defect.^ 
 
 Th« burden of proof is on the party who claims the pro- 
 tection of a bona fide purchaser.^ 
 
 The bona fide purchaser takes the title so fully purged of 
 the defect that he is able to transfer a good title even to 
 one who cannot claim to be a bona fide purchaser/ unless 
 he is the man with whom the defect of title originated, as, 
 for example, where he was the fraudulent vendee, from 
 whom the bona fide purchaser took his title. ° 
 
 \ ^ 
 
 1 Cochran v. Stewart, 21 Mxnn. 435; Devoe o. Brandt, 63 N. Y. 462; 
 
 Green v. Humphrey, 50 Pa. St. 212; Loebu. Flash, 65 Ala. 526; Caldwell 
 V. Bartlettt, 3 Duer, 853. See Kern v. Thurber, 67 Ga. 176. 
 
 2 Dows B. Kidder, 84 N. Y. 121. 
 
 3 Devoe v. Brandt, 53 N. Y. 462; Lynch v. Beecher, 38 Conn. 490; 
 Porter ». Parks, 49 N. Y. 464; Leod v. First Nat. Bank, 12 Miss. 99. But 
 see Mears v. Waples, 3 Houst. 681. 
 
 * Grout V. Hill, 4 Gray, 361, 368 ; Trull v. Bigelow, 16 Mass. 406. 
 s Schutt V. Large, 6 Barb. 373. 
 
 535 
 
CHAPTEE XXII. 
 
 REMEDIES FOR THE BREACH OF THE CONTRACT OF SALE. 
 
 Section. 331. General statement. 
 
 332. Sellers' remedies in executed contracts — Measure of 
 
 damages. 
 
 333. Seller's remedies f re personam in executory contracts — 
 
 Measure of damages. 
 
 334. Seller's remedy against the goods — His resale of the 
 
 goods. 
 
 335. Buyer's remedies for the seller's breach of the contract — 
 
 Non-delivery of the proper goods — MeaiSure of dam- 
 
 336. Buyer's claim to special or consequential damages. 
 336. Buyer's action for specific performance. 
 
 § 331. General statement. — In all contracts of sale, 
 there are involved contingent and collateral liabilities, such 
 as the liability for the breach of conditions and warranties, 
 and for fraud in the making of the contract, for which ap- 
 propriate remedies are provided, apart from the remedies 
 for the direct breach of the contract of sale. But these col- 
 lateral remedies have been already fully explained in connec- 
 tion with the discussion of the subjects of fraudulent and 
 conditional sales, and of warranties, and after referring the 
 reader to the chapters, in which these remedies may be 
 found explained,^ it will be unnecessary to do more than 
 to explain the nature of the remedies for the direct breach 
 of the contract of sale. This part of the subject divides 
 itself naturally into the seller's remedies and the buyer's 
 remedies ; and this natural subdivision of them will be 
 observed in the succeeding discussion. 
 
 1 For the remedies for fraud see §§ 162, 163 ; for breach of warranty, 
 see § 197; and for breach of conditions, § 216. 
 53l> 
 
CH. XXII.] .REMEDIES FOB BREACH OF CONTRACT. § 332 
 
 § 332. Seller's remedies In executed contracts — 
 Measure of damages. — The seller's remedies are resorted 
 to in consequence of the buyer's breach of the contract, 
 and they vary according to the character of the buyer's 
 breach, which may assume one of two forms, viz. : either 
 he may refuse to receive the goods in pursuance of the 
 contract, or, having received the goods, he may refuse or 
 fail to pay the price. 
 
 Where the goods have been already delivered to the 
 buyer, and his breach of the contract consists in his refusal 
 or failure to pay the price, the seller's action against the 
 buyer will be for the recovery of the price, although 
 technically it may be stated that the action was for dam- 
 ages, for the buyer's breach of the contract. If the price 
 has been fixed by the contract, the action will berfor the 
 fixed price ; but if the contract does not provide the price, 
 then the implied promise to pay the market value of the 
 goods will be broken, and the action will be for the market 
 value of the goods at the time of sale.^ But if the goods 
 were sold on a credit, the buyer does not commit a breach 
 of his contract, unless he fsiils to pay at the expiration of 
 the time of credit ; and hence before the expiration of this 
 time, no action can be maintained against the buyer for the 
 
 » Konitzky v. Meyer, 49 N. Y. 471 ; Hill v. Hill, 1 N. J. L. 261 ; Morse 
 V. Sherman, 106 Mass. 430; Scotten v. Sutter, 37 Mich. 526; Bailey?;. 
 Smith, 43 N. H. 141 ; Althouse v. Alvord, 28 "Wis. 517. See Gage v. 
 Myers (Mich.'), 26 N. W. Rep. 470; Mitchell v. Scott, 41 Mich. 108; Mc- 
 Queen V. Pamble, 33 Mich. 344; Dubois v. Delaware, &c., Canal Co., 4 
 "Wend. 285; Flanders v. Putney, 28 N. H. 358; Horn v. Batchelder, 41 N. 
 H. 86; Moline Scale Co. v. Reed, 52 Iowa, 307; Hosley v. Scott, 26 N. W. 
 Rep. (Mich.) 659; Bullock u. Finley, 28 Fed. Rep. 514; McBain ii. Austin, 
 16 "Wis. 87; Wineman ?). Walters, 53 Mich. 470, 472; Eodmanii. Guilford, 
 112 Mass. 405; Compton u Parsons, 76 Mo. 455; Cheney-Bigelow "Wire 
 "Works «. Sorrell, 142 Mass. 442; Overstreet u. Gallaher,42 Aa-k.208; Mc- 
 Lennan V. McDermid, 52 Mich. 468; McAllisters. Safely, 65 Iowa, 719; 
 Coit V. Schwartz, 29 Kaa. 344; Britton v. Turner, 6 N. H. 481; Moulton 
 V. Trask, 9 Met. 577 ; Hoagland v. Moore, 2 Blackl. 167 ; Moon v. Harder, 
 38 Mich. 566; Begole ». McKenzie, 26 Mich. 470. 
 
 537 
 
§ 333 REMEDIES FOR BREACH OF CONTKACT. • [CH. XXII. 
 
 price, not even where the buyer is insolvent or has been 
 guilty of fraud in the procurement of the contract,^ unless 
 the buyer had agreed to give security, when he would be 
 guilty of a breach of an implied condition precedent to the 
 provision for a credit, and in that case and for that reason 
 the seller could sue immediately for the price, with perhaps 
 a reasonable discount for the unexpired time of the credit. ^ 
 So, also, if the buyer should refuse to accept the goods, 
 after he had received a part of them , his refusal would, at 
 the election of the seller, operate as a rescission of the 
 original contract in which the provision for a credit was in- 
 serted ; and in its place an implied contract to pay the value 
 of the goods received would arise, which would enable the 
 seller to bring an action immediately for the recovery of 
 the value of the part of the goods which had been delivered 
 to the buyer.^ 
 
 § 333. Seller's remedies In personam in executory con- 
 tracts — Measure of damages. — If the contract of sale is 
 executory, and remains so because the buyer refuses to ac- 
 cept any part of the goods, although they have been tend- 
 ered to him in strict compliance with the contract, the seller 
 has under the authorities his choice of three remedies. 
 
 1 Dellone v. Hall, 47 Md. 112; SherifE v. McCoy, 27 Up. Can. Q. B. 
 597; Keller v. Strassburger, 90 N. Y. 379; s. c. 23 Hun, 625; Auger «. 
 Thompson, 3 Out. App. 19; SlUiman v. McLean, 13 Up. Can. Q. B. 644; 
 Magrath v. Tinning, 6 Up. Can. Q. B. (o. s.) 484; Kellogg v. Turpie, 2 
 111. App. 55; Strutt •o. Smith, 1 Cromp. M. & R. 312; "Wakefield v. Gorrie, 
 5 Up. Can. Q. B. 159, 163; Bictnell v. Buck, 58 Ind. 354; Morlarty v. 
 Stofferan, 89 111. 628. But see Dietz v. SutclifE, 80 Ky. 650; Bice v. 
 Andrews, 33 Vt. 691, 694. 
 
 2 Hanna v. Mills, 21 Wend. 90; Einehart v. Olwlne, 5 Watts & S. 167; 
 Manton o. Gammon, 7 Bradw. 201; Barron v. Mullin, 21 Minn. 374; 
 Girard v. Taggart, 5 Serg. & E. 19 ; Carnahan v. Hughes, 9 N. E. Rep. 
 (Ind.) 79; Hays v. Weatherman, 14 Ind. 341; Clodtfeldter o, Hulett, 72 
 Ind. 137. 
 
 8 See Bartholomew v. Marwick, 15 C. B. (n. s.) 711, 716; and see, 
 further, Wayne's Merthyr Steam Co. v. Morewood, 47 L. J. Q. B. 746, 
 748, 749. 
 
 538 
 
CH. XXII.] EEMED1E8 1 OH BKEACH Or CONTEACT. § 333 
 
 His first remedy is to treat the goods contracted for as 
 still his own property, and sue the seller for the damages 
 which he has suffered, which would be estimated by ascer- 
 taining the difference between the contract price and the 
 market value of the goods at the time and place of delivery.^ 
 If there is no market at the place of delivery then the value 
 of the goods at the nearest market, plus the cost of trans- 
 portation to the place of delivery, would be the true measure 
 of damages.^ The market price usually indicates the market 
 value ; but if there should be an undue inflation or depres- 
 sion of the price at the time of delivery, 'caused by un- 
 healthy speculation, the market price would be an unreliable 
 guide, and in fixing the market value, the court and jury 
 should take into account these artificial fluctuations in the 
 price.^ The market value is determined by a reference to 
 the time and place when the goods were to have been de- 
 livered, and not to the time when the buyer announced his 
 determination not to take the goods.* This, however, is 
 
 1 Clement, &c., Co. v. Meserole, 107 Mass. 362 ; Young ». Merton, 27 
 Md. 114; Gibbons v. United States, 8 Wall. 269; Rand v. White Mount- 
 ains R. E. Co. 40 N. H. 79; Harris Mfg. Co. v. Marsh, 49 Iowa, 11; 
 Northup V. Cook, 39 Mo. 208; Whelan v. Lynch, 65 Barb. 329; 60 N. Y. 
 469; Lanbach v- Lanbach, 73 Pa. St. 392; Hayden v. Demets, 53 N. Y. 
 426; Nixon v. Nixon, 21 Ohio St. 114; Danforth v. Walker, 37 Vt. 239. 
 
 2 Washington Ice Co. v. Webster, 68 Me. 463; Bice v. Manley, 66 N. 
 Y. 82; East Tenn., &c., R. R. Co. v. Hale, 85 Tenn. 69; McHose v. Ful- 
 mer, 73 Pa. St. 865; Griffith v. Colver, 16 N. Y. 489; Capen v. De Stieger 
 Glass Co., 105 111. 185. But see Equitable Gas Light Co. ». Bait, Coal 
 Tar, &c., Co., 65 Md. 73, and Culin c. Woodbury Glass Works, 108 Pa. 
 St. 220, where it is held that other equitable rules for the measurement 
 of damages, where from the rarity of the goods its market value cannot 
 be ascertained. See, to the same effect, Chicago v. Greer, 9 Wall. 726; 
 McCormlck v. Hamilton, 23 Gratf . 561 ; Kountz v. Kirkpatrick, 72 Pa. St. 
 376; Durst v. Burton, 47 N. Y. 175. See Thurman v. Wilson, 7 Bradw. 
 312 ; Paxton v. Meyer, 58 Miss. 445. 
 
 3 See Kountz v. Kirkpatrick, 72 Pa. St. 376; Cahen v. Piatt, 69 N. Y. 
 343; Stark v. AUord, 49 Tex. 260; Trout v. Kennedy, 47 Pa. St. 393; 
 Durst V. Burton, 47 N. Y. 167. ' 
 
 4 Phillpots v. Evans, 5 M. & W. 475; Pollansbee ®. Adams, 86 111. 13; 
 Kadish v. Young, 108 III. 170. 
 
 539 
 
§ 333 KEMKDIES FOR BREACH OF CONTRACT. [CH. XXII. 
 
 only the guide where the seller has prepared himself to 
 deliver the goods called for by the contract. But if the 
 contract was for the manufacture and the sale of an article, 
 and the buyer countermands his order before the manu- 
 facture of the article is completed, it is not necessary for 
 the seller to complete the manufacture of the article and 
 then tender the finished article to the buyer, in order to 
 hold the latter liable on his contract. The seller may, if he 
 chooses, on receiving the countermand of the buyer's order, 
 discontinue the work on the goods ordered, and bring an 
 action against 'the buyer for the damages he has suffered 
 from the countermand. ^ The difference between the con- 
 tract price and the market value of the manufactured article 
 is not in that case the measure of damages but the actual 
 damage suffered by the manufacturer in the cost of raw ma- 
 terial and the expenditure of labor on the article.^ 
 
 In the second place, although there are authorities to the 
 contrary,* it seems to be the prevailing rule in America that 
 the seller may consider the goods to be the property of the 
 buyer, notwithstanding there has been no acceptance of 
 them by the buyer, and recover of the buyer the full price 
 of the goods.* In England, it seems that the seller cannot, 
 
 1 Hosmer v. Wilson, 7 Mich. 294; James v. Adams, 16 W.Va. 267; Mc- 
 Cormick v. Basal, 46 Iowa, 235 ; Pittsburg, &c. R., R. Co. v. Heck, 50 Ind. 
 303; Butler v. Butler, 77 N. Y. 472; Conihe v. N. Y. &N. E. R. R. Co., 20 
 N. Y. 495; Allen ». Jarvis, 20 Conn. 38; Eckenrode v. Chemical Co., 55 
 Md. 61, 59; Black v. Woodson, 39 Md. 194; Clement, &c., Mfg. Co. ». 
 Meserole, 107 Mass. 362 ; Cort v. Ambergate Ry. Co., 17 Q. B. 127 ; Haines 
 V. Tucker, 50 N. H. 307 ; Hughes' Case, 4 Ct. of CI. 64, 73 ; Yates «. United 
 States, 15 Ct. of CI. 119, 125; Parker v. Pettit, 43 N. J. L. 612, 517; Hock- 
 ster V. De La Tour, 2 El. & B. 678. 
 
 ■■' Collins V. Delaporte, 115 Mass. 162; Hosmer w. Wilson, 7 Mich. 294; 
 Gongon v. Madigan, 13 Wis. 67; Danforth v. Walker, 37 Vt. 239; Mc- 
 Naughtc. Dodson, 49 111. 446; Rand v. White Mountain E. E. Co., 40 N- 
 H. 79. 
 
 3 See Pittsburg, &c., R. R. Co. v. Heck, 50 Ind. 303; Indianapolis, &c., 
 R. R. Co. V. Maguire, 62 Ind. 140; Fell v. Muller, 78 Ind. 507; Moody v. 
 Brown, 34 Me. 107. / 
 
 * Bement o. Smith, 15 Wend. 493; Doremus v. Howard, 23 N. J.L."" 
 540 
 
CH. XXtl.J REMEDIES FOR BREACH OF CONTRACT. § 333 
 
 in case of non-acceptance of the goods, recover the full 
 price.^ And it is very likely that most of the American 
 cases are really exceptions to the general rule, which are 
 recognized, because on account of the peculiar circumstances 
 of the particular case a judgment for the difference between 
 the market value and the contract price would not be an 
 ample remedy. This would be the case where the goods 
 were specially manufactured for the buyer, and it would be 
 difficult, if at all possible, to find another purchaser for 
 them.^ So, also, where the market value cannot be ascer- 
 tained, and therefore the difference between it and the con- 
 tract price cannot be determined, it is held that the full 
 price can be recovered.' But instead of treating the prop- 
 
 390; Dustan ». MoAndrew, 44 N. Y. 72; Bridgford i;. Crocker, 60 N. Y. 
 627; Kodman ». Guilford, 112 Mass. 405; Higgins u. Murray, 78 N. Y. 
 252; Nichols v. Moore, 100 Mass. 277; Hunter v. Wetsell, 84 N. Y. 549; 
 Frazier v. Simmons, 139 Mass. 531; Wade u. Moffet, 21 111. 110; Bell v. 
 OfEutt, 10 Busli, 639; Ballentine c. Eobinsou, 46 Pa. St. 177; Bagley v. 
 Findlay, 83 111. 524; Donnell v. Hearn, 12 Daly, 230; QuickC. Wlieeler, 
 78 N. Y. 300; Mason ». Decker, 72 N. Y. 595; Hayden u. Dewets, 58 N. 
 Y. 426; Pollen v. Le Koy, 30 N. Y. 549; Pear-on u. Mason, 120 Mass. 53; 
 Chicago V. Greer, 9 Wall. 726. But in order that the contract may be re- 
 covered, the vendor must fully prepare the goods for delivery. Ganson 
 V. Madigan, 13 Wis. 67; Pirdicaris v. Trenton City Bridge, 39 N.J. L. 
 368; Armstrong o. Turner, 49 Md. 589; Bailey o. Smith, 43 N. H. 141. 
 And the seller must likewise show that the goods which he tenders in 
 the performance of the contract are of the kind and quality called for by 
 the contract. Brewer v. Housatonic Ry. Co., 104 Mass. 593; s. c. 104 
 Mass. 277. 
 
 1 See Laird ». Pirn, 7 M.& W. 474, 478; Barrow ». Ainaud, 8 Q. B. 604, 
 610. 
 
 2 Gordon v. Norris,49N. H. 383; Pearson v. Mason, 120 Mass. 63; 
 Goddard v. Binney, 115 Mass. 450; Black River Lumber Co. v. Warner, 
 93 Mo. (1888) 374; Allen ». Jarvis, 20 Conn. 38; Bookwalter». Clark, 11 
 Biss. C. C. 126; Thorndike v. Locke, 98 Mass. 340; Thompson ■e. Alger, 
 12 Met. 428; Canada ». Wick, 100 N. Y. 127; Shawhan ». Van Nest, 25 
 Ohio St, 490; Ballentine v. Robinson, 46 Pa. St. 177. 
 
 ' See Phelps v. McGee, 18 111. 158; Bagley ». Findlay, 82 111. 524; Gor- . 
 don V. Norris, 49 N. H. 376; Camp v. Hamlin, 55 Qa. 259; Williams u. 
 Jones, 1 Bush. 621; James v. Adams, 16 W. Va. 245; Brownlee v. Bolton, 
 44 Mich. 218; Harris Mfg. Co. v. Marsh, 49 Iowa, 11 ; Sanborn u. Bene- 
 
 541 
 
§ 334 REMEDIKS FOB BREACH OF CONTRACT. [CH. XXII. 
 
 erty as his own, or holding it as bailee for the buyer, and 
 recover the contract price, resort may be had to the 
 
 § 334. Seller's remedy against the goods — His resale 
 of the goods, — that is, in case of non-acceptance of the 
 goods, the seller may notify the buyer that he will sell the 
 goods for the account of the buyer, and hold the latter lia- 
 ble for any difference between the contract price and the 
 price obtained from the resale of the goods. ^ The right of 
 resale may be exercised within a reasonable time after de- 
 fault by the buyer ; and if delay is not unreasonable, it 
 would not be necessary for the resale to be made immedi- 
 ately after the default, although the price of the goods 
 may be on a steady decline. ^ 
 
 Although it is customary, as well as advisable, in order 
 to forestall charges of unfairness, for the seller to give the 
 
 diet, 78 111. 309; Haskell v. McHenry, 4 Cal. 411; McNaughter v Cassaly, 
 
 4 McLean, 530; Haines v. Tucker, 50 N. H. 307; Foos v. Sabine, 84 111. 
 565. 
 
 1 Van Horn v. Eucker, 33 Mo. 391; Crooks v. Moore, 1 Sand. 297; 
 Lewis V. Greider, 49 Barb. 606; Adams v. Mirick, 5 Serg. & R. 32; White 
 ». Kearney, 9 Kob. (La.) 495, 501; Williams v. Godwin, 4 Sneed, 557; 
 Saladin v. Mitchell, 45 lU. 85; Barnett » Terry, 42 Ga. 283; Walker ». 
 Gooch, 10 Biss. 159, 163; Bach v. Levy, 50 N. Y. S. C. 519; Youghiogheny 
 Iron Co. ». Smith, 66 Pa. St. 340, 344; Johnson u. Powell, 9 Ind. 5G6; 
 Judd, etc., Oil Co., v. Kearney, 14 La. An. 352; Eosenbaums v. Weeden, 
 18 Giatt, 785; Bogart v. O'Regan, 1 E. D. Smith, 590; Sands v. Taylor, 
 
 5 Johns. 395; Atwood v. Lucas, 53 Me. 508; Girard v. Taggart, 5 Serg. &. 
 E. 19; Dustan ». McAndrew, 44 N. Y. 72; Mason o. Decker, 72 N. Y. 
 599; Shawhan v. Van West, 25 Ohio St. 490; Young v. Mertens; 27 Md. 
 114; Bagley v. Findlay, 82 111. 524; Bell v. Offutt, 10 Bush, 632; Cook v. 
 Brandeis, 3 Met. (Ky.) 557; Holland u. Eea, 48 Mich. 218; Hayden ». 
 Demets, 63 N. Y. 431; Hames v. Tucker, 50 N. H. 313. 
 
 2 Smith ». Pettee, 70 N. Y. 13; George ». Glass, 14 Up. Can. Q. B. 
 614; Camp v. Hamlin, 55 Ga. 259; Linden v. Eldren, 49 Wis. 305 ; Rosen- 
 baum». Weeden, 18 Gratt. 785; Brownlee v. Bolton, 44 Mich. 218; 
 Pickering v. Bardwell, 21 Wis. 562. Two months' delay was held to be 
 reasonable in Tilt v. La Salle Silk Mfg. Co., 5 Daly, 20, and Eosenbaum 
 V. Weeden, 18 Gratt. 785; and five months in Saladin v. Mitchell, 48 111. 
 79. 
 
 542 
 
CH. XXII.] REMEDIES FOR BREACH OF CONTRACT. § 334 
 
 buyer notice of the time and place of the resale, it cannot 
 be said to be necessary.* So, also, is it unnecessary for the 
 resale to be by auction. Although the resale is usually by 
 liublic auction, a private sale is sufficient.^ All thac is 
 generallj'' required of the seller, in his conduct of the re- 
 sale, is that he shall in all his arrangements for the resale 
 reasonably consider the interests of the buyer by securing 
 the largest price possible for the goods.* The sale need 
 not necessarily be held in the place of delivery ; but it 
 must ordinarily be held in some convenient and neighbor- 
 ing market. And if it is held in a distant market it would 
 tend to support the charge of unfairness in the conduct of 
 the resale.* 
 
 If the price obtained in the resale of the goods is less than 
 the contract price, the difference may be recovered of the 
 buyer in an appropriate action.^ But if the sale was made 
 
 1 See Gaskell v. Morris, 7 Watts & S. 32; Bagley v. Flndlay, 82 III. 
 524; Rosenbaums v. Weeden, 18 Gratt. 785; Van Horn v. liucker, 33 
 Mo. 391; McClure o. Williams, 5 Sneed, 718; Redmond v. Smoek, 28 
 Ind. 365; Holland v. Rea, 48 Mich. 218; Saladin v. Mitchell, 45 111. 76; 
 Lewis V. Greeder, 49 Barb. 606 ; Hickock v. Hoyt, 33 Conn. 663 ; Dollen 
 B. LeRoy, 30 N. Y. 549; West ». Cunningham, 9 Port. 104; George v. 
 Kimball, 24 Up. Can. Q. B. 514. 
 
 2 Crooks B. Moore, 1 Sandf. 297; Lewis u. Greider, 51 N. Y. 231; 
 McGibbon i>. Schlessinger, 18 Hun, 225; UUman w. Kent, 60 111. 271; 
 Sands B. Taylor, 5 Johns. 395; Camp b. Hamlin, 55 Ga. 259; O'Brien v. 
 Jones, 47 N. Y. 67; Brownlee v. Bolton, 44 Mich. 218; Smith v. Pettee, 
 70 N. Y. 13, 18; Lindon v. Eldred, 49 Wis. 305; Pollen v. Le Roy, 30 N. 
 Y. 549, 
 
 3 SeteDuustons. McAndrew, 44 N. Y. 72; White v. Kearney, 14 La. 
 Ann. 352; Bagley b. Pindlay, 82 111. 524. 
 
 * Chapman v. Ingram, 30 Wis. 290; Rickey v. Teubroeck, 63 Mo. 
 563. 
 
 « Sands v. Taylor, 5 Johns. 395; Schultz v. Bradley, 4 Daly, 29; Hunter 
 ». Wetsell, 84 N. Y. 549; Phelps v. Hubbard, 61 Vt. 489; McLean v. 
 Richardson, 127 Mass. 339; -Lamkm u. Crawford, 8 Ala. 153; Young v. 
 Martens, 27 Md. 126; Bartley b. New Orleans, 30 La. An. 264; Bell v. 
 Offutt, 10 Bush, 632; Williams ». Godwin, 4 Sneed, 557; Van Home. 
 Rucker, 33 Mo. 491; Rosenbaums v. Weeden, 18 Gratt. 785; Whitney 
 V. Boardman, 118 Mass. 242; Jones v. Marsh, 22 Vt. 144; McGibbon b. 
 
 543 
 
§ 335 REMEDIES FOE BKEACH OF CONTRACT. [CH. XXII. 
 
 without a previous notice to the buyer of the time and 
 place of the resale, the disposition of the courts seems to 
 be, in obedience to the charge of unfairness, to disregard 
 the price obtained at the resale as a test of the market 
 value of the goods, and adopt some other standard of value, 
 for the purpose of determining the difference between it 
 and the contract price. ^ 
 
 § 335. Buyer's remedies for the seller's breach of con- 
 tract — Xon-delivery of the proper goods — Measure of 
 damages. — If the seller fails to deliver the goods in ac- 
 cordance with his contract of sale, the buyer can sue him 
 for non-delivery, and recover damages of him. And, or- 
 dinarily, if the price has not been paid, the damages will 
 be estimated by the difference between the contract price 
 and the market value at the time and place of delivery.'* 
 
 Schlessinger, 18 Hun, 225; Lewis v. Greider, 51 N. Y. 231. The neces- 
 sary expenses of the resale would, of course, be deducted first from the 
 price obtained, before calculating the difEerence between that price and 
 the contract price. See Thurman v. Wilson, 7 Bradw. 312. 
 
 1 See Girard ». Taggart, 5 Serg. & E. 32; Chapman v. Ingram, 30 
 Wis. 290; Rickey ». Tenbroeck, 63 Mo. 587; Haskell v. McHenry, i Cal. 
 411; McCombsi). McKennan, 2 Watts & S. 219; Cof£man v. Hampton, 2 
 Watts & S. 890. See Granberry ». Frierson, 2 Baxt. 326, for a state- 
 ment of the liability of the seller, when the contract price is less than 
 the price obtained in the resale. 
 
 2 Sleuter v. Wallbaum, 45 111. 44 ; Grand Tower Co. v. Phillips, 23 Wall. 
 471; Miles «. Miller, 12 Bush, 134; Somersu. Wright, 115 Mass. 292; Burn- 
 ham V. Roberts, 70 111. 19; Bushii. Holmes, 53 Me. 417; Chadwick v. But- 
 ler, 28 Mich. 349 ; Marsh v. McPherson, 105 U. S. 709 ; Guice v. Crenshaw, 
 60 Tex. 344; Gray v. Hall, 29 Kan. 704; Kribs v. Jones, 44 Md. 396; 
 Parsons v. Sutton, 66 N. Y. 92; Kountz o. Kirkpatrick, 72 Pa. St. 376; 
 Gordon w. Norris,49 N. H. 376; Rose ?;. Bozeman, 41 Ala. 678; Worthen'S. 
 Wilmot, 30 Vt. 555 ; Lush v. Druse, 4 Wend. 313 ; Harrison v. Glover, 72 N. 
 Y. 451 ; Hannau. Harter, 2 Ark. 397; Bush v. Caufleld, 2 Conn. 487; West 
 V. Pritchard, 19 Conn. 215; Phelps v. McGee, 18 111. 165; Capen v. De 
 Steiger Glass Co., 106 111. 185; Behner v. Dale, 25 Ind. 433; Cannons. 
 Folsom, 2 Iowa, 101 ; Stewart v. Power, 12 Kan. 596 ; Miles v. Miller, 12 
 Barb. 134; Marchesseau v. Chaffee, 4 La. Ann. 24; Camden, &c., Oil Co. 
 V. Schleus, 59 Md. 31; Bartlett ». Blanchard, 13 Gray, 429 ; McKercher 
 
 544 
 
CH. XXII. J REMEDIES FOE BREACH OF CONTRACT. § 335 
 
 And if the goods are to be delivered in installments at suc- 
 cessive times, the damages will be ascertained by adding 
 together the differences between the contract price of the 
 installments and their market values on their respective 
 days of delivery.^ But it must be borne in mind that the 
 buyer need not wait until the seller's failure to deliver the 
 last installment, but he may treat the failure to deliver 
 any one of the installments as a breach of the contract and 
 bring his action immediately .^ 
 
 If no time and place of delivery are provided for, then 
 the market value of the time and place of sale should be 
 compared with the contract price, in the measurement of 
 damages,^ And if there is no market at the place of de- 
 livery, resort should be had, as in the ease of the seller's 
 remedies, to the value of the goods at the nearest market, 
 plus the cost of transportation to the place of delivery.* 
 
 V. Curtis, 35 Mich. 478; Stevens v. Eyford, 7 N. H. 360; Gregory v. 
 McDowell, 8 Wend. 485; Davis v. Shields, 24 Wend. 326; McKnight v. 
 Duulop, 1 Said. 537; Clark v. Dales, 20 Barb. 42; Van Allen v. Illinois 
 Central R. E. Co., 7 Bosw. 515; White v. Tompldns, 62 Pa. St. 363; Hill 
 V. Chapman, 59 Wis. 211; Doaku. Snapp, 1 Coldw. 180; Listens. Wind- 
 muller, 20 Jones & Sp. 408; Fishell v. Winans, 38 Barb. 228; Dana v. 
 Fielder, 12 N. Y. 40; Beals v. Terry, 2 Sandf. 127; Dey v. Dox, 9 Wend. 
 120; Rand v. White Mountain R. R. Co., 40 N. H. 79; White v. Salisbury, 
 33 Mo. 150; Essex Co. v. Pacific Mills, 14 Gray, 389; Shaw v. Nudd, 8 
 Pick. 9; Smith v. Berry, 18 Me. 122; Arrowsmith u. Gordon, 3 La. An. 
 106; Porter v. Barrow, 3 La. An. 140; Gray v. Hall, 29 Kan. 704; Jem- 
 mison v. Gray, 29 Iowa, 587; CoUum v. Huntington, 51 Ind. 229; Kent 
 V. Ginter, 28 Ind. 1 ; Deere v. Lewis, 51 111. 254 ; Smith v. Dunlap, 12 111. 
 184; Wells v. Abernethy, 5 Conn. 227; Crosby v. Watkins, 12 Cal. 85. 
 
 J Johnson v. Allen, 78 Allen, 3S7 ; Hill v. Chisman, 69 Wis. 211 ; Frost 
 V. Knight, L. R. 7 Exch. Ill; Boorman ®. Nash, 9 Barn. & C. 145, 162; 
 Tyers v. Rosedale, &c., Co., L. R. 8 Exch. 305 ; Roper v. Johnson, L. R. 
 8 C. P. 167; Missouri Furnace Co. •«. Cochran, 8 Fed. Rep. 463; Burtis 
 V. Thompson, 42 N. Y. 246; Shreve v. Brewton, 51 Pa. St. 176. 
 
 2 Hill V. Chipman, 69 Wis. 211, 218. 
 
 3 Thompson v. Woodruff, 7 Cold. 401 ; Kipp v. Wiles, 3 Sandt . 585. 
 Or the market value may be taken at the time of demand of delivery, and 
 the seller's refusal to deliver. Williams v. Wood, 16 Md. 220. 
 
 » Grand Tower Co. v. Phillips, 23 Wall, 471; Douglass v. Mercele8,25 
 
 35 545 
 
§ 335 REMEDIES FOR BREACH OF CONTRACT. [CH. XXII. 
 
 If the market value cannot be ascertained by any resi- 
 sonable effort, then the damages must be estimated in some 
 other way, in accordance with the general principles of 
 equity. 1 
 
 Where there is no variation between the contract price 
 and the market value at the time and place of delivery, the 
 seller is nevertheless guilty of a breach of contract in re- 
 fusing to deliver the goods, and hence he will be liable 
 in an action for nominal damages and the costs of the 
 suit.^ 
 
 But if the buyer has paid the contract price in full, the 
 rule for the measurement of the damages varies with the 
 authorities. According to one set of authorities, the buyer 
 is entitled to receive as damages the market price at the 
 time and place of delivery.* According to the other au- 
 
 N. J. Bq. 144; Furlong v. Poileys, 30 Me. 491; McCormick v. Hamilton, 
 23 Gratt. 561; Rice v. Manley, 66 N. Y. 82; Hazelton Coal Co. v. Buck 
 Mt. Coal Co., 57 Pa. St. 301; Sellar v. Clelland, 2 Col. 532; Coxe v. 
 England, 65 Pa. St. 212; Yoang v. Lloyd, 65 Pa. St. 199; Wemple u. 
 Stewart, 22 Barb. 154 ; Berry v. Dwinel, 44 Me. 255 ; Cahen v. Piatt, 69 
 N. Y.352; Durst v. Burton, 47 N. Y. 167. See Pa. E. E. Co. v. TitusvillH 
 Plank Eoad Co., 71 Pa. St. 350; Hamilton v. McPherson, 28 N. Y. 76; 
 Humphreysville, &c., Co. v. Vermont, &c. Co., 33Vt. 92; Beymer u. 
 McBride, 37 Iowa, 114; Hopkins v. Sanford, 41 Mich. 243. 
 
 1 Bank of Montgomery o. Eeese, 26 Pa. St. 143; Culin v. Woodbury 
 Glass Works, 108 Pa. St. 220; Eamsay v. Tully, 12 Bradw. 463; Camden, 
 &c., Oil Co. V. Schlens, 59 Md. 31 ; Bell v. Reynolds, 78 Ala. 511 ; Schouse 
 V. Neiswaanger, 18 Mo. App. 236; Merrimack Mfg. Co. v. Quintard, 107 
 Mass. 127; Cockburn «. Ashland Lumber Co., 54 Wis. 619; McHose v. 
 Fulmer, 74 Pa. St. 367. 
 
 2 Bush V. Caufleld, 2 Conn. 485; Rose v. Bozeman, 41 Ala. 678; Wil- 
 son V. Whitaker, 49 Pa. St. 114; Moses v. Easln, 14 Fed. Rep. 772; Bill- 
 ings V. Vanderbeck, 23 Barb. 546; Maher v. Elley, 17 Col. 415. 
 
 ' Shepherd v. Hampton, 8 Wheat. 200; Balto., &c., Co. v. Sewell, 35 
 Md. 238; Cofleld v. Clark, 2 Cal. 102; Bear v. Harnish, 3 Brewst. 116; 
 White V. Salisbury, 33 Mo. 150; Hill v. Smith, 32 Vt. 433; McKenney v. 
 Haines, 63 Me. 74; Rose v. Bozeman, 41 Ala. 678; Smith v. Duiilap, 
 12 111. 184; SmithhurstB. Woolston, 5 Watts & S. 106; Humpheysville, 
 &c., Co. V. Vermont, &c., Co., 33 Vt. 92; Douglass v. McAllister, a 
 Cranch, 298. 
 546 
 
CH. XXII. j REMEDIES FOR BREACH OF CONTRACT. § 336 
 
 thorities, the buyer is entitled to recover as damages the 
 highest market price which has been reached any time be- 
 tween the time of delivery and the beginning of the ac- 
 tion for damages.' 
 
 § 336. Buyer's claim to special or consequential 
 damages. — Very often the claim is made by the buyer that 
 the seller's breach of the contract of sale has wrought upon 
 him injurious consequences above and beyond the difference 
 between the market value and contract price, and the right 
 to additional damages in liquidation of this consequential 
 injury is asserted. The answers of the courts to this query 
 are not by any means harmonious. But after eliminating 
 the irrconcilable cases, it is believed that the following state- 
 ment of the law is reasonably accurate and reliable. 
 
 In the first place, the claim for special damages will not 
 be recognized, if the seller did not know the use to which 
 the thing bought was to be put, and hence could not rea- 
 sonably be expected to anticipate in many particulars the 
 consequences of his breach of the contract.^ And it is also 
 required, as the foundation for a claim to special damages, 
 
 1 Dabovich v. Emeric, 12 Cal. 171; West v. Pritchard, 19 Conn. 212; 
 Cannon v. Folsom, 2 Iowa, 101; Meyer ». Wheeler, 65 Iowa, 390; Kent 
 V. Ginten, 23 Ind. 1 ; Van Allen v. Illinois Cent. R. B. Co., 7 BoBw. 515; 
 Suydam v. Jenkins, 3 Sandf. 614; Eandon v. Barton, 4 Tex. 289; Brasher 
 o. Davidson, 31 Tex, 190; Gregg v. Fitzhugh, 36 Tex. 127; Ranger v. 
 Heame, 37 Tex. 30; Canwright v. McCook, 33 Tex. 612; Caloit v. Mc- 
 Fadden, 13 Tex. 324; Bank of Montgomery v. Reese, 26 Pa. St. 143 (the 
 rule applied only to stocks, the other rule being applied to the breach of 
 other contracts of sale, see supra); Arnold v. Suffolk Bank, 27 Barb. 
 424; Clark v. Pinney, 7 Cow. 687; West v. Wenlworth, 3 Cow. 82; Gil- 
 man V. Andrews, 66 Iowa, 116; Stapleton v. King, 40 Iowa, 278; Daven- 
 port V. Wells, 1 Iowa, 598; Maher v. Riley, 17 Cal. 415. In South Caro- 
 lina, the buyer can recover the ruling market price on demand of de- 
 livery of the stock. Davis v. Richardson, 1 Bay, 105. 
 
 2 Bartlettu. Blanchard, 13 Gray, 429; Adams Exp. Co. v. Egbert, 36 
 Pa. St. 360; Fessler ». Love, 48 Pa. St. 407; Buffalo Barb Wire Co. v. 
 Phillips, 64 Wis. 338. 
 
 547 
 
§ 336 BEMEDIES FOR BREACH OF CONTRACT. [CH. XXII. 
 
 that the complaint or declaration of the plaintiff must al- 
 lege such damages.^ The authorities seem also to be ugreed 
 that mere speculative profits, which the buyer claims to 
 have been able to earn, if he had gotten the goods, and 
 which depend upon the rise and fall in price, could not be 
 taken into account in estimating the amount of damages to 
 which the buyer is entitled for the seller's breach of the 
 contract.^ But the profits, which one reasonably and re- 
 liably anticipates from the possession and manipulation of 
 the goods bought, are considered as much a part of the 
 contract of sale, as the claim to any actual increase in 
 value at the time of delivery over the contract price. And 
 hence the prevailing rule of law permits the recovery of 
 such profits as special or consequential damages.' For ex- 
 ample, if a gardener or farmer buys seeds, warranted to be 
 of a certain kind and quality, the vendor of the seed is 
 liable on the breach of that warranty for the loss of profits 
 which the buyer would have without any reasonable doubt 
 gained from the sale of his crop, if the seed had been of 
 
 1 Parsons v. Sutton, 66 N. Y. 92; Miles v. Miller, 12 Bush, 138; Co- 
 fleld V. Clark, 2 Cal. 102 ; Furlong v. Polleys, 30 Me. 491 ; Stevens v. 
 Lyford, 7 N. H. 360. 
 
 2 Ferris v. Comstock, 33 Conn. 513; Berger v. New Orleans, 35 La. 
 Ann. 523; Howe Machine Co. v. Bryson, 44 Iowa, 159; White v. Miller, 
 71 N. Y. 118; Joues v. Lathrop, 7 Col. 1; Wolcott v. Mount, 36 N. J.L. 
 262; s. c. 38 N. J. L. 496; Pennypacker v. Jones, 106 Pa. St. 237: Hous- 
 ton, &c., R. E. Co. V. Hill, 63 Tex. 351; Brigham v. Carlisle, 78 Ala. 243; 
 McKinnon v. McEwan, 48 Mich. 106. 
 
 3 Masterton v. Mayor of Brooklyn, 7 Hill, 62; Fox«. Harding, 7 Cush. 
 616; Eoyalton ». Eoyaltou, &c., Co. 14 Vt. 811; Eichmond v. Dubuque, 
 &c., R. E. Co., 40 Iowa, 264; s. c. 43 Iowa, 422; Burrell v. N. Y., &c., 
 Co., 14 Mich. 34; Cook v. Comrs. of Hamilton Co., 6 McLean, 612; Hub- 
 bard «. Eowell, 61 Conn. 423; Kendall, &c., Co. «. Commissioners, 79 
 Va. 563 ; Bell v. Eeynolds, 78 Ala. 511; United States v. Behan, 1 10 U. S. 
 338; Fairchild v. Rogers, 32 Me. 269; Nat. Filtering Oil Co. v. Citizens' 
 Ins. Co., 106 N. Y. 535; Jones v. Foster, 67 Wis. 296; McHose ». Ful- 
 mer, 73 Pa. St. 365; United States v. Speed, 8 Wall. 77; Hoy©. Grenoble, 
 34 Pa. St. 9; McAndrews v. Tippett, 39 N. J. 105; Develin?;. Mayor, &c., 
 63 N. Y. 8 ; Morrison v. Lovejoy, 6 Minn. 224. 
 
 548 
 
CH. XXII. J REMEDIES FOR BREACH OF CONTRACT. § 337 
 
 the kind it was represented to be.' In other cases, special 
 damages were allowed, where the vendor of manure failed 
 to deliver the quantity called for by the contract and in con- 
 sequence the yield of the land thus imperfectly manured, 
 was less than that of contiguous land which had been prop- 
 erly prepared ; ^ where a gas company had wrongfully re- 
 fused to supply a storekeeper with illuminating gas; * and 
 where an ice dealer failed to supply a butcher with the 
 amount of ice the latter had contracted for, in consequence 
 of which he lost a large amount of his fresh meat.* 
 
 § 337. Buyer's action for specific performance. -— The 
 
 action for specific performance of a contract is an equitable 
 remedy, which the court of equity applies whenever the 
 common-law action for damages proves to be an inadequate 
 remedy. The purpose of this equitable remedy is, as its 
 name implies, to compel a specific performance of the con- 
 tract of sale by a delivery of the goods in accordance with 
 the terms of the contract. This action is so peculiarly a 
 matter of equity practice, that its full treatment is con- 
 sidered as belonging more properly to a treatise on equity 
 jurisprudence. 
 
 In the case of sales of personal property in general , the 
 presumption of law is that the common-law action is ^ade - 
 quate ; ^ and in order that the claim to the equitable remedy 
 may be substantiated, the plaintiff must prove the fact 
 that his case constitutes an exception to the general rule. 
 
 ' Passenger v. Thorburn, 34 N. Y. 634 ; White v. Miller, 7 Hun, 427 ; 
 s. c. 71 N. Y. 118; s. c. 78 N. Y. 393; Flick !>. Weatherbee, 20 Wis. 392. 
 To the same effect, see Jones v. George, 61 Tex. 345. But see, contra, 
 Hurley v. Buchi, 10 Lea, 346. 
 
 2 Bell V. Reynolds, 78 Ala. 611. 
 
 3 Shepard v. Milwaukee Gas Light Co., 15 Wis. 318. 
 •* Hammer v. Schoenfelder, 47 Wis. 455. 
 
 * See cases cited in large numbers in 3 Pom. Eq. Jur., § 1402, note. 
 
 549 
 
§ 337 EEMEDIES FOR BREACH OF CONTRACT. [CH. XXH. 
 
 But having established this fact, he is then entitlecf to a 
 judgment or decree for specific performance. ^ 
 
 ^ Sale of a slave, Barter v. Gordon, 2 Hill, 121; Young ». Barton, 1 
 McMull. Eq. 255; sale of patent rights, Binney v. Annan, 107 Mass. 95; 
 Corbln v. Tracy, 34 Conn. 325; Satterthwait v. Marshall, i Del. Ch. 337; 
 Svrmerby v. Buntln, 118 Mass. 287 ; sale of coal tar under peculiar cir- 
 cumstances, Equitable Gas Light Co. v. Bait. Coal Tar Co., 63 Md. 285; 
 shares of stock. Leach v. Fobes, 11 Gray, 506 ; Todd v. Loft, 7 AUen, 
 371; Frue v. Houghton, 6 Col. 318; Ashe v. Johnson, 2 Jones, Eq. 149; 
 Johnson v. Brooks, 93 N. Y. 337. But in Foil's Appeal, 91 Pa. St. 434, 
 specific performance was denied to a buyer of stock, where it was shown 
 that his object was to acquire thereby the control of the corporation. 
 550 
 
TABLE OF CASES CITED- 
 
 Seferences are to Sections. 
 
 A. 
 
 Abat V. Atkinson (21 J^a. An. 414), 
 
 87. 
 Abbe V. Eaton (61 N. Y. 410), 323. 
 Abberger v. Marin (102 Mass. 90), 
 95. 
 V. Marin (102 Mass. 70), 85, 291. 
 Abbot V. Bailey (6 Pick. 89), 29. 
 ». Gilchrist (38 Me. 260), 58. 
 V. Goodwin (37 Me. 203), 306. 
 V. Goodwin (20 Me. 408), 243. 
 V. Mackinley(2 Miles, 220), 29. 
 ». May (60 Ala. 97), 268. 
 V. Shepard (48 N. H. 14), 39. 
 Able V. Cbandler (12 Tex. 88), 277. 
 Aborn v. Merchants' Transporta- 
 tion Co. (136 Mass. 283), 
 36, 168. 
 Abraham v. Miller (87 111. 179), 142, 
 
 269. 
 Acebal v. Levy (10 Bing. 376), 47, 
 
 65, 76. 
 Ackenbnrgh v. McCool (36 Ind. 
 
 473), 270. 
 Ackerman v. Hunsicker (86 N. Y. 
 
 43), 234. 
 Ackley v. Finch (7 Cow. 220), 226, 
 
 246, 248. 
 Achley v. Pinch (9 Cow. 290), 221. 
 Acraman ». Morris (8 0. & B. 449), 
 
 82, 87. 
 Adair v. Malone (1 Hud. & B. 49), 
 93. 
 
 Adams B. Boughton (2 Str. 1078), 43. 
 V. Boughton (13 Ala. 739), 174. 
 V. Commercial Nat. Bank (53 
 
 Iowa, 491), 233. 
 V. Dale t29 Ind. 273), 99. 
 Adams Exp. Co. v. Egbert (36 Pa. 
 
 St. 360), 336. 
 Adams v. Foley (4 Iowa, 44), 105. 
 V. Gray (19 Vt. 338), 290, 308. 
 V. Hammell (2 Dougl. 73), 293. 
 V. Helen (55 Mo. 468), 117. 
 V. Hill (10 Kan. 627), 233. 
 V. Humphreys (64 Ga. 496), 142. 
 V. LindseU (1 B. & Aid. 681), 39, 
 
 40. 
 V. Malinken (41 N. J. Eq. 332), 
 
 152. 
 V. McMillan (7 Port. 73), 76, 
 
 286. 
 V. Merchants' Nat. Bank (2 
 
 Fed. Rep. 174), 240. 
 V. Merick (5 Serg. & H. 32), 
 
 334. 
 V. Nebraska City Nat. Bank (4 
 
 Neb. 370), 247. 
 V. Paige (7 Pick. 542), 162. 
 V. Sayer (76 Ala. 509), 270. 
 V. Smith (5 Cow. 280), 329. 
 V. Stevens (49 Me. 362), 227. 
 V. Tanner (5 Ala. 470), 231. 
 Adams Mining Co. v. Senter (26 
 
 Mich. 74), 87. 
 Adamsonw. Jarvis (4 Bing. 66), 184. 
 Adener v. Bible (43 Ind. 230), 241. 
 .')51 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Adrain v. Lane (13 S. C. 183), 269. 
 ^tna Ins. Co. v. Reed (33 Ohio St. 
 
 283), 160. 
 Aguirre v. Parmelee (22 Conn. 473), 
 
 181. 
 Aguire o. Allen (10 Barb. 74), 79. 
 Ahem v. Goodspeed (72 N. Y. 108), 
 
 183. 
 Aiken v. Blaisdell (41 Vt. 666), 294, 
 306. 
 V. Hyde (99 Mass. 183), 213. 
 Ainsworth v. Greenlee (3 Murph. 
 470), 461. 
 V. Bowen (9 Wis. 348), 274. 
 Alabama Warehouse Co. v. Lewis 
 
 (56 Ala. 514) f 226. 
 Alcock V. Hopkins (6 Cush. 484), 
 
 147. 
 Alderman v. Eastern B. H. Co. (115 
 
 Mass. 238), 86. 
 Aldrich v. Blackstone (128 Mass. 
 148), 308. 
 V. Grimes (14 R. I. 219), 265. 
 V. Grimes (10 N. H. 194), 19. 
 V. Goodell (75 111. 462), 249. 
 V. Jackson (5 R. L 218), 149, 
 
 215. 
 V. Ryatt (64 Barb. 891), 61. 
 V. Wilcox (10 R. I. 405), 262, 
 265. 
 Aldridge b. Johnson (7 E. & B. 885; 
 
 26 L. J. Q. B. 296), 89. 
 Alewyn v. Pryor (R. & M. 406), 214. 
 Alexander v. Dennis (9 Port. 174), 
 164, 166. 
 V. Button (58 H. N. 282), 194. 
 V. Gardner (1 Bing. N. C. 671 , 
 1 Scott, 630; 1 Hodgne, 
 147), 214. 
 V. Gardner (1 Bing.N. C. 671), 
 
 87, 89. 
 ». Herlot (1 Bailey Eq. 223), 19. 
 V. Hutcheson (2 Hawks, 685), 
 
 19. 
 V. Jones (64 Iowa, 207), 269. 
 552 
 
 Alexander v. Lewis (47 Tex. 481), 
 
 294. 
 V. Merry (9 Mo. 802), 286. 
 V. Polk (39 Miss. 737), 304. 
 V. Swackhamer (105 Ind. 81), 
 
 168, 310. 
 V. Tomlinson (40 Ark. 216, 218, 
 
 219) , 8. 
 V. Burke (22 Gratt. 254), 274. 
 Alger V. Farley (19 Iowa, 518), 250. 
 V. Thacher (19 Pick. 61), 303. 
 Alhins V. (Solby (20 N. H. 154), 128. 
 Allan V. EUdred (50 Wis. 136), 148. 
 Allard v. Greasert (61 N. Y. 1), 61, 
 
 65. 
 V. Lamirande (29 Wis. 502), 
 
 804. 
 Allen V. Allen (9 Frost (N. H.) 106), 
 
 21. 
 V. Bennett (3 Taunt. 169), 75, 
 
 76. 
 V. Carr (85 111. 888), 84a, 106. 
 V. Cole (9 N. J. Eq. 286), 265. 
 V. Berry hill (27 Iowa, 534), 21. 
 V. Cole (9 N. J. Eq. 286), 260, 
 
 265. 
 0. Culver (3 Den. 284), 152. 
 V. Delano (56 Me. 113), 325. 
 V. Duffle (48 Mich. 1), 308. 
 V. Gardner (7 R. I. 22), 175, 
 
 308. 
 V. Goodnow (71 Me., 420), 51, 
 
 232. 
 V. Griffin (2 Cromp. & J. 218), 
 
 130. 
 V. Griffins (8 Watts, 397), 277. 
 V. Hammond (11 Pet. 68), 35. 
 V. Hart (72 111. 106), 160. 
 V. Hartfleld (76 111. 858), 151, 
 
 170. 
 V. Hearn (1 T. R. 66), 298, 301. 
 V. Jarvis (20 Conn. 38), 58, 333. 
 V. Johnson (4 J. J. Marsh. 235), 
 
 84a. 
 V. Jones (24 Fed. Rep. 11), 105. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Allen V. Lathrop (46 Ga. 133), 234. 
 V. Maury (66 Ala. 10), 87, 122, 
 
 300. 
 V. Massey (4 N.Bank Eep. 248), 
 
 240. 
 «. Massey (17 Wall. 361), 84a. 
 V. McCalla (25 Iowa, 464), 240. 
 V. Mercier (1 Ashm. 103), 130. 
 V. Mills(4La. An. 97), 209. 
 V. Poole (64 Miss. 323), 18. 
 V. Stephanes (18 Tex. 668) , 169. 
 V. Webb (24 N. H. 278), 163. 
 Allingham v. O'Mahoney (1 Puge, 
 
 326), 94, 104. 
 Allis V. Billings (6 Met. 416), 21, 24. 
 
 0. Read (45 N. Y. 142), 71. 
 Allison V. Matthiew (3 Johns. 235), 
 
 329. 
 AUman v. Davis (2 Ired. 12), 87. 
 Alna V. Plummer (4 Greenl. 268), 78, 
 
 288. 
 Alston V. Atlay (6 Nev. & M. 688), 
 
 298. 
 Alsworth V. Cordlz (31 Miss. 32), 
 
 18. 
 Alton V. Harrison (L. R. 4 Ch. 622), 
 
 174. 
 Althouse V. Alvord (28 Wis. 617), 
 
 332. 
 Ambrose v. Evans (66 Cal. 74), 312. 
 Amelle, The (6 Wall. 26), 275. 
 Amer v. Hightower (70 Cal. 440), 
 
 327. 
 American Cigar Co. v. Foster (36 
 
 Mich. 368), 232. 
 American, etc.. Express Co. v. Will- 
 
 sie (79111. 92), 329. 
 Ames, Ex parte (1 Lowell, 561), 231, 
 
 234. 
 Ames V. Jones (77 N. Y. 614), 188. 
 V. Port Huron, etc., Co. (11 
 
 Mich. 146), 270. 
 V. Quim by (96U. S. 324), 45. 
 Ames Iron Works v. Warren (76 
 Ind. 512), 239. 
 
 Amite City ». Clemuntz (24 La. An. 
 
 27), 281. 
 Amonett v. Montague (63 Mo. 201), 
 
 196. 
 Amory v. Broderick (5 Barn. & Aid. 
 
 712), 98. 
 Amson v. Dreher (^RS Wis. 615), 63. 
 Am. Wine Co. v. Brasher (13 Fed. 
 
 Bep. 603), 163. 
 Anderson v. Baumgartner (27 Mo. 
 80), 221. 
 V. Brenneman (44 Mich. 198), 
 
 238. 
 V. Bruner (112 Mass. 14), 183, 
 
 269. 
 V. Chiek (1 Bailey Eq. 118), 
 
 286. 
 V. Coonley (21 Wend. 279), 269. 
 V. Green (46 Ga. 361), 277. 
 V. Harold (10 Ohio, 399), 76. 
 V. Hill (12 Smed. & M. 679), 
 
 166. 
 V. Holmes (14 S. C. 162), 241. 
 V. Howard (49 Ga. 313), 231. 
 V. Hunn (6 Hun, 79), 221. 
 V. Levyson (1 Tex. App. (Civ. 
 
 Cas.) 927), 84. 
 V. Loward (40 Ohio St. 325) 19. 
 V. Morice (1 App. Cas. 713 ; Ex. 
 Ch. L. R. 10 C. P. 609; 
 s. c. lb. 58), 82, 87. 
 V. Smith (33 Md. 466), 17. 
 V. Warner (5 Bradw. 416), 174. 
 Andres v. Lee (1 Dev. & Bat. Eq. 
 
 318), 186. 
 Andrew v. Dietrich (14 Wend. 36), 
 87,170,171,205,312,315. 
 V. Robinson (3 Camp. 199), 282. 
 V. Wrigley (4 Bro. C. C. 136), 
 277. 
 Andrews v. Durant (11 N. Y. 35), 
 87, 206, 210. 
 V. Kneeland (6 Cow. 364), 183, 
 
 188, 269, 271, 272, 273. 
 V. Marshall (48 Me. 26), 240. 
 553 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Andrews v. McDaniels (68 N. C. 
 
 385), 245. 
 V, Richmond (34 Hun, 24), 88. 
 V. Scotton (2 Bland (Md.), 
 
 629), 256. 
 V. Sparhawk (13 Pick. 393), 277. 
 Angel V. McLellan (16 Mass. 28), 
 
 17. 
 Angler v. Taunton Paper Co. (1 
 
 Gray, 621), 210. 
 Anglo-Egyptian Navigation Co. v. 
 
 Eennie (L. R. 10 C. P. 
 
 271), 82. 
 Anibal v. Heacock (2 Fed. Rep. 
 
 169), 240. 
 Anthony v. Butler (13 Pet. 423), 
 
 239. 
 V. Day (52 How. Pr. 35), 163, 
 V. Wade (1 Bush, 110), 8 a. 
 V. Wheatons (7 E. I. 496), 84a. 
 Appelton V. Eennon (19 Mo. 637). 
 
 144. 
 Apperson e. Moore (30 Ark. 66), 
 
 53, 231, 232. 
 Appleby v. Johnson (L. E. 9 C. P. 
 
 158), 33. 
 Applegate v. Moffltt (60 Ind. 104), 
 
 183, 269. 
 Appleman ». Pisher (34 Md. 551), 
 
 51. 
 Appleton V. Norwalk Library Co. 
 
 (53 Conn. 4), 325. 
 V. Parker (15 Gray, 173), 146, 
 Archarabau v. Green (21 Minn 520), 
 
 227. 
 Archer v. Baynes (5 Ex. 625; 20 L. 
 
 J. Ex. 64), 76, 76. 
 V. Cole (22 How. Pr. 411), 246. 
 V. O'Brien (7 Hun, 591), 174. 
 Archibald v. Argall (53 111. 307), 
 
 144. 
 Arendale v. Morgan (5 Sneed, 703^, 
 
 68, 314, 327, 329. 
 Argues v. Wasson (51 Cal. 620), 
 
 52, 231. 
 
 5.54 
 
 Argus Co. V. Albany (55 N. Y. 495), 
 
 76. 
 Argus V. City of Albany (55 N. Y. 
 
 496), 74, 75. 
 Arkwright v. Newbold (L. R. 17 
 
 Ch. D. 817), 169. 
 Armentrout v St. Louis E. R. Co. 
 
 (1 Mo. App. 168), 89. 
 Armfield u. Tate (7 Ire. 258), 19. 
 Armington v. Houston (38 Vt. 448). 
 
 326. 
 Armitage v. Insole (14 Q. B. 728), 
 94, 96. 
 V. Wilder (36 Mich. 124), 18. 
 Armisted v. Ward (2 Pat. & H. 
 
 616), 144, 147. 
 Armor v. Cochran (66 Pa. St. 308), 
 
 256. 
 Armour v. Mich. Cent. R. R. Co. 
 (66 N. Y. Ill), 323. 
 V. Pecker (123 Mass. 145), 86. 
 Armstrong v. Bryne (1 Edw. Ch. 
 79), 176. 
 V. BufEord (61 Ala. 410), 190. 
 V. Elliott (29 Mich. 485), 270. 
 V. Huffstuttler (19 Ala. 61), 
 
 169. 
 V. Lawson (73 Ind. 498), 59. 
 V. Moodie (6 Up. Can. Q. B. 
 
 (o. 8.) 538), 174. 
 V. Southern Express Co. (4 
 
 Baxt. 376), 296. 
 V. Turner (49 Md. 589), 333. 
 Arnold V. Chapman (13 R. I. 586), 
 247. 
 V. Cord (16 Ind. 172), 169. 
 V. Delano (4 Cush. 33; 60 Am. 
 Dec. 754), 119, 120, 122, 
 134. 
 V. Halenbacke (5Wend. 34) 317. 
 ». Johnson (66 Cal. 402), 312. 
 V. Potter (22 Iowa, 194), 239. 
 V. Prout (51 N. H. 587), 84. 
 V. Richmond Iron Works (1 
 Gray, 434), 21, 24. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Arnold v. Sprague (34 Vt402'), 144. 
 V. Stock (81 111. 407), 243. 
 V. The Mayor, etc., of Poole 
 (4 Man. & G. 860), 152. 
 Amott V. Clou das (4 Dana, 300). 
 168, 327. 
 V. Pittston Coal Co. (68 N. Y. 
 668), 294, 
 Arnold v. SufEolk Bank (27 Barb. 
 
 424), 335. 
 Arrowsmlth u. Gordon (3 La. An. 
 106), 335. 
 V. O'SnlUvan (44 N. Y. Sup. 
 Ct. 673), 174. 
 Artcher u. Zeb (5 Hill. 200, 395), 
 
 59, 71. 
 Arthur v. Chicago By. Co. (61 Iowa, 
 648), 7, 88. 
 ». Sanders (9 Port. 626), 209. 
 Arundel, Lady v. Phlpps (10 Ves. 
 
 Jr. 145), 84a. 
 Archer v. Grand Trunk By. Co. (36 
 Up. Can. Q. B. 609), 137. 
 Ash V. Putnam (1 Hill, 302), 125, 
 
 170, 310, 327. 
 Ashburn v. Poulter (35 Conn. 557), 
 
 139, 140. 
 Ashby V. West (3 Ind. 170), 6. 
 Ashcroft V. Butterworth (136 Mass. 
 611), 76. 
 V. Monin (4 M. & G. 450), 76. 
 Ashe V. Johnson (2 Jones, Eq. 149), 
 
 337. 
 Ashcom V. Smith (2 Pen. & W. 211), 
 
 284. 
 Ashley v. Dillon (19 Md. 619), 298. 
 V. Wright (19 Ohio SI. 291), 
 241. 
 Ashton V. Atlantic Bank (3 Allen, 
 217), 277. 
 V. Dakln (4 H. & N. 867), 302. 
 Ashton's Appeal (73 Pa. St. 163), 
 
 316. 
 Astey V. Emery (4 M. & S. 262), 61, 
 66. 
 
 Atcheson v. Scott (61 Tex. 218), 
 
 277. 
 Atherton v. Newhall (123 Mass. 
 
 141), 65, 70. 
 Atkins V. Barnstable (97 Mass. 428), 
 213. 
 V. Barwlck (1 Stra. 166; 10 
 
 Mod. 432), 176. 
 V. Colby (20 N. H. 154), 126, 
 
 130. 
 V. Boylston, &c., Ins. Co. (6 
 
 Met. 440), 99. 
 V. Chilson (11 Met. 112), 219. 
 V. Howe (18 Pick. 11), 284. 
 Atkinson v. Bell (10 B. & C. 277), 
 58. 
 ». Bell (8B. &C. 277), 89. 
 V. Jordan (5 Ohio, 178) 176. 
 V. Maling (2 T. K. 43, 462), 106. 
 V. Ritchie (10 East, 530), 214. 
 V. Smith (14 M. & W. 695), 
 200. 
 Atlantic Ins. Co. v. Houth (16 Ch. 
 
 D. 474, 481 C. A), 276. 
 Atlee 17. Fink (75 Mo. 100), 269. 
 Atteuborongh v. London & St. 
 
 Eatherines Dock Co. (L. 
 
 E. 3 P. C. D. 450; 47 L. 
 J. C. P. 763), 327, 329. 
 
 Atwater v. Clancy (107 Mass. 
 
 369), 188, 196. 
 
 V. Hough (29 Conn. 513), 56. 
 
 Atwood V. Cornwall (28 Mich. 342), 
 
 149. 
 
 V. Dearborn (1 Allen, 483), 
 
 329. 
 V. Emery (1 C. B. (n. s.), 110), 
 
 100. 
 V. Lucas (53 Me. 508), 104, 334. 
 V. Small (6 Clark & F. 233), 
 
 158, 162. 
 V. Small (6 CI. &T. 233), 167. 
 V. Small (6 Ct. & F. 232), 166. 
 Atty.-Gen. v. Day (1 Ves. Sr. 218), 
 257. 
 
 555 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Audenried v. Bettley C8 Allen, 602), 
 
 8, 203. 
 AufflnordtB.Kaisin (102 Mass. 620), 
 
 175. 
 Auger V, Thompson (3 Ont. App. 
 
 19), 332. 
 Augier v. Taunton Paper Co. (1 
 
 Gray, 621), 325. 
 Angles' Appeal (76 Pa. St. 431), 277. 
 Augur ». Couture (68 Me. 427), 77. 
 Auketel v. Converse (17 Ohio St. 
 
 11), 152. 
 Anil V. Lee (61 Mo. 160), 234. 
 Aultman v. Lee (43 Iowa, 404), 142. 
 B. Mallory (5 Neb. 178), 206, 
 
 325. 
 V. Theiver (34 Iowa, 272), 213. 
 Austin V. Bell (20 Johns. 442), 176. 
 V. Cambridgeport Parish (21 
 Pick. 215), 200. 
 Austen o. Craven (4 Taunt. 644), 87, 
 88. 
 V. Dye (46 N. Y. 500), 203, 206, 
 
 325. 
 V. Johnson (7 Humph. 191), 
 
 175. 
 ■0. Sawyer (9 Cow. 39), 59. 
 V. Seligman (21Blatchf. 506), 6. 
 ». Tilden (14 Vt. 327), 311. 
 V. Wilson (21 Ind. 262), 277. 
 Australasian, etc., Co. v. Morse (L. 
 
 R. 4, P. C), 275. 
 Averbeck v. Hall (14 Bush. 505), 
 
 292, 296. 
 Averill v. Hedge (12 Conn. 424), 38. 
 Avery b. Stewart (2 Conn. 69), 99. 
 Avery v. Street (6 Watts, 648), 174. 
 V. Wilson (81 N. Y. 341; 37 
 Am. Hep. 503), 101, 34, 
 116. 
 Ayer».Bartlett (9 Pick. 156), 86, 87. 
 V. Bartlett (2 Pick. 612), 86. 
 B. Hawkins (19 Vt. 26), 152. 
 Ayers v. Moore (2 Stew. 336), 174. 
 B. Sleeper (7 Met. 45), 8. 
 556 
 
 Ayers v. Van Lien (6 N. J. L. 765), 
 
 144. 
 
 Aylifle b. Tracy (2 P. Wms. 66), 74. 
 
 Ayres v. Bane (30 Iowa, 518), 153. 
 
 B. French (41 Conn. 142), 170. 
 
 V. Parker (3 Hawks. 59), 193. 
 
 Azemar v. Casella (L. K. Q. C. P. 
 
 431; 36 L. J. C. P. 124), 
 
 216. 
 
 B. 
 
 Babb B. Clemson (10 S. & R. 428), 
 
 84a. 
 Babcock v. Bonnell (80 N. Y. 244), 
 125. 
 V. Eckler (24 N. Y. 623), 174. 
 B. Lawson (L. B. 4 Q. B. D. 
 
 394), 327, 329. 
 B. Libby (53 How. Pr. 235), 
 
 160. 
 o. Lisk (57 111. 327), 234. 
 B. McFarland (43 111. 381), 241. 
 B. Thompson (3Pick. 446), 301. 
 B. Wyman (19 How. 239), 228. 
 BachB. Levy (18 Jones & S. 619; 
 6 N. B. Rep. 345), 189. 
 B. Levy (60 N. Y. S. C. 519), 
 334. 
 Bache ». Proctor (DoUgl. 384), 35. 
 Backentoss v. Speicer (31 Pa. St. 
 
 324), 170. 
 Backer v. Hamilton (18 La. Ann. 
 
 663), 284. 
 Bacon v, Bonham (27 N. J. Eq. 
 209), 239. • 
 B. Brown (19 Conn. 84), 204, 
 
 224. 
 B. Brown (4 Bibb. 91), 163. 
 B. Cobb (45 111. 47), 218. 
 B. Eccles (43 Wis. 227), 66, 79. 
 B. Huntington (14 Conn. 92), 
 
 219. 
 B. Kennedy (66 Mich. 329), 260. 
 Badlam b. Tucker (1 Pick. 284), 218, 
 234. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Badger v. Batsvla Paper Mfg. Co. 
 (70 111. 302), 230, 240. 
 V. Phinney (15 Mass. 369), 20, 
 16H. 
 Bagg V. Jerome (7 Mich. 145), 84a. 
 BaggettB. Meux (1 Phil. 627), 30. 
 Baggs V. Fowler (16 Cal. 559), 314. 
 Bagley v. Cleveland Kolling Mill 
 Co. (21 Fed. Eep. 159), 
 180, 189, 215. 
 V. Findlay (82 111. 624), 333, 
 334. 
 Bagneley v. Hawley (L. K. 2 C. P. 
 
 625), 184, 185. 
 Baham v. Bach (13 La. 287), 166, 
 
 285. 
 Bally V. Baily (9 Rich Eq. 392), 256. 
 Bailey v. Bensley (87 111. 556), 6, 7, 
 272, 273. 
 V. Colby (34 N. H. 29), 203, 
 
 316. 
 V. De Crespigny (L. K. 4 Q. B. 
 
 180), 218. 
 V. Godfrey (54 111. 507), 239, 
 
 241. 
 V. Harris (8 Clarke (Iowa.), 
 
 33L), 206, 325. 
 V. Hudsoa Elver R. R. Co. (49 
 
 N. Y. 70), 89. 
 V. Long (24 Can. 90), 88. 
 V. Ogdens (3 Johns. 419), 76, 
 
 286. 
 V. Quint (22 Vt. 474), 104. 
 V. Smith (14 Ohio St. 396), 245. 
 V. Smith (43 N. H. 141), 88. 
 
 332, 333. 
 V. Sweeting (9 C. B. (n. s.) 
 843), 75. 
 Bain v. Brown (66 N. Y. 286), 270. 
 Baine v. William (10 Sm. & M. 
 
 113), 152. 
 Baines v. McGee (1 Smed. & M. 
 208), 277. 
 V. Swalnson (4 Best & Smith, 
 270), 317. 
 
 Bains v. Jevous (7 C. & P. 288), 
 
 67. 
 Balieman v. Pooler (15 Wend. 637), 
 
 140. 
 Baker v. Arnot (67 N. Y. 448), 186. 
 V. Baker (13 B. Mon. 406), 247. 
 V. Bliss (39N. Y. 70), 174. 
 V. Bonestell (2 HUt. 397), 149. 
 V. Dening (8 A. & E. 94), 77. 
 B. Drake (66 N. Y. 518), 272. 
 V. Hall (16 Iowa, 277), 325. 
 V. Henderson (24 Wis. 509), 
 
 117. 
 V. Jameson (20 J. J. Marsh. 
 
 547), 286. 
 V. Lever (67 N. Y. 304), 163. 
 V. Levett (6 Mass. 78), 18. 
 V. Lyman (38 Up. Can. Q. B. 
 498), 189. 
 
 V. Main (12 Mass. 121), 
 211. 
 D. McAllister (3 Pac. Rep. 681), 
 
 186. 
 V. Stackpole (9 Cow. 420), 162. 
 u. Thrasher (4Denio, 493), 204. 
 V. Whiting (3 Sumner, 4751 , 270. 
 V. Woodruff (2 Barb. 520), 6. 
 Baldwin v. Daniell (69 Ga. 791), 
 193. 
 o. Doubleday ( Vt. ; 4N. E. 
 
 Rep. 124), 87. 
 V. Flash (68 Miss. 693), 238. 
 V. Franklin (8 Lee, 67), 170. 
 V. Jenkins (23 Miss. 206), 227. 
 V. McKay (41 Miss. 368), 85. 
 V. Tuttle (23 Iowa, 27), 174. 
 V. Van Deusen (37 N. Y. 487), 
 
 182. 
 V. Williams (3 Met. 367), 69. 
 Baldeyu. Parker (2 B. & C. 37), 61, 
 
 67, 69, 114. 
 Baleskl v. Clark (44 Conn. 218), 213. 
 Ball V. Chadwick (46 111. 31), 13. 
 V. Gilbert (12 Met. 399), 301. 
 V. Loomis (29 N. Y. 412), 84a. 
 5.57 
 
TABLE OP CASES CITED. 
 
 References are to Sections. 
 
 Ball V. Stanley (5 Yera. 199), 140. 
 Ballard v. Burgett (ION. Y. 314;, 
 
 206, 220, 325. 
 Balleutiue o. Robinson (46 Pa. St. 
 
 177), 88, 89, 333. 
 Ballew V. Clark (2 Ire. 23), 21. 
 Ballou V. Cunningham (60 Barb. 
 
 425), 248, 250. 
 Bahn v. Bumess (3 Best & Smith, 
 
 761), 189. 
 Balme v. Wamburgh (16 Minn. 
 
 116), 140. 
 Balmer v. Bate (2 Brod. & Bing. 
 
 673), 298. 
 Baltimore and Ohio E. K. Co. v. 
 Brydon (3 Alt. Kep. 306, 
 Md.), 115. 
 Bait. M. Ins. Co. v. Dalrymple (25 
 
 Md. 269), 274, 316. 
 Bait., etc., Co. v. Sewell (35 Md. 
 
 238), 335. 
 Bait., etc., B. R. Co. v. Glenn 
 
 (28 Md. 287), 84a. 
 Bait., & Ohio R. R. Co. a. Wilkens 
 
 (44 Md. 11), 323. 
 Bamber v. Savage (52 Wis. 110), 78. 
 Bamer v. Jevons (7 C. &. P. 288), 
 
 116. 
 Bampden v. "Walsh (L. E. 12 P. D. 
 
 192), 301. 
 Banchor v. Mansel (47 Me. 58), 
 
 290, 294. 
 Banchor u. Warren (33 N. H..183), 
 
 88. 
 Bancroft v. Dumas (21 Vt. 456), 
 
 152, 306, 290. 
 Banendahl v. Horr (7 Blatchf. 548), 
 
 87, 217. 
 Bank v. Bank (10 Vt. 145), 185. 
 V. Bobo (9 Rich. 31), 144. 
 V. Crary (1 Barb. 542), 231. 
 V. Dandridge (12 Wheat. 64), 
 
 269. 
 V. Farmers L. & T. Co. (16 
 Wis. 609), 270. 
 558 
 
 Bank ». Gorman (8 W. & S. 304), 
 
 175. 
 
 B.'Hibbard (48 Mich. 118), 88. 
 
 V. Lanier (11 Wall. 369), 319. 
 
 V, Rattenberg (7 Grant, 383), 
 
 174. 
 
 Bank of England (1 Ld. Bfym. 442), 
 
 144. 
 Bank of Kansas City v. Grindgtaff 
 (45 Ind. 158), 195. 
 V. Mills (24 Kan. 610), 143. 
 Bank of Lansingburg v. Crary. (1 
 
 Barb. 542), 231. 
 Bank of Leavenworth v. Hunt (11 
 
 Wall. 391), 240. 
 Bank of Montgomery v. Reese (26 
 
 Pa. St. 143), 335. 
 Bank of N. A. v. Meredith (2 Wash. 
 
 C. C. 47), 152. 
 Bank of Northampton v. Mass. Loan 
 Co. (123 Mass. 330), 185. 
 Bank of Ohio Valley v. Lockwood 
 
 (13 W. Va. 426), 147. 
 Bank of Old Dominion v. Dubuqne 
 R. R. Co. (8 Iowa, 277), 
 274. 
 Bank of Rochester v. Jones (4 
 Const. 497), 86. 
 V. Jones, (4 N. Y. 497), 225. 
 Bank of United States v. Daniel (12 
 Pet. 32), 144. 
 V. Hutly (4 B. Mon. 423), 239. 
 V. Lee (13 Pet. 103), 239. 
 Bank of Upper Canada v. Klllaly, 
 (21 Up. Can. Q. B. 9), 
 87. 
 Bank of Utica v. Finch (3 Barb. 
 
 Ch. 293), 234. 
 Bank of Utica v. Smalley (2 Cowen, 
 
 770), 819. 
 Bank of Woodland v. Hiatt (58 
 
 Cal. 234), 168, 163. 
 Bankart v. Bowers (L. R. 1 C. P. 
 
 484), 200. 
 Banks v. Bales (16 Ind. 423), 262, 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Banner, Ex parte (2 Ch. D. 78 C. 
 A.). 86. 
 (L. E. Ch. D. 78), 95. 
 Bannerman v. White (10 C. B. (n. 
 
 8.) 844), 216. 
 Banton v. Shorey (77 Me. 48), 59. 
 Baptist Church v. Bigelow (16 
 
 Wend. 28), 286. 
 Barbour ». Priest (103 U. S. 293), 
 176. 
 V. White (37 111. 164), 246. 
 Barclay v. Hopkins (59 Ga. 562), 
 196. 
 u. Tracy (6 W. & S. 45), 61. 
 Bard well v. Roberts (66 Barb 433), 
 
 223, 226. 
 Barfield v. Cole (4 Sneed, 465), 
 
 222, 223. 
 Baring©. Corsie (2B. & Aid. 143), 
 
 271. 
 Barkers. Bradley (42 N. Y. 316), 
 196. 
 V. Buel (6 Cush. 519), 234. 
 V. Bushuell (75 III. 220), 7, 88. 
 V. Dinsmore (72 Pa. St. 427), 
 
 35, 168, 317. 
 V. Firminger (28 L. J. Ex. 
 
 130), 113. 
 V. Holt (68 Wis. 100), 36. 
 V. Richardson (57Vt.308), 121. 
 V. Roberts (8 Greenl. 101), 6. 
 V. Smith (12 N. Bank Rep. 
 
 474), 240. 
 V. Stacy (25 Miss. 471), 239. 
 V. Windle (6E.&B. 675), 102. 
 Barker v. Walbrige (14 Minn. 469), 
 
 140. 
 Barkley v. Renssalaer, etc., R. R. 
 Co. (71N.Y.205),268,65. 
 Barkow v. Sanger (47 Wis. 500), 
 
 234. 
 Barksdale v. Elam (30 Miss. 694), 
 
 200. 
 Barnaby v. Barnaby (1 Pick. 221), 
 19. 
 
 Barnard v. Backhaus (52 Wis. 
 
 593), 292, 302. 
 
 V. Campbell (65 N. Y. 466), 
 
 134, 310, 321, 323. 
 
 V. Campbell (65 Barb. 286; s.c. 
 
 58 N.Y. 73), 170,327,329. 
 
 V. Eaton (2 Cush. 295), 51, 231, 
 
 232, 243. 
 V. Graves (16 Pick. 41), 145. 
 V. Kellogg (10 Wall. 383), 187, 
 
 188, 197. 
 1). Monnot (15 How. Pr. 440), 
 
 271. 
 ». Moore (8 Allen, 273), 234. 
 V. Norwich, etc., R. R. Co. 
 
 (4 Cliff. 351), 53. 
 V. Stevens (2 Aik. (Vt.) 429), 
 
 264. 
 1). Wheeler (24 Me. 412), 268. 
 V. Yates (1 Nott & McC. 142), 
 187. 
 Barnes ». Bartlett (15 Pick. 77), 93. 
 V. Preeland (6 T- E. 80), 176. 
 V. Holcombe (12 Sm. & M. 
 
 306), 224, 227. 
 V. Swarnson (4 Best & Smith, 
 
 270;, 317. 
 V. Toye (13 Q. B. D. 410), 17. 
 V. Barnett (1 Joaes Eq. 221), 
 21. 
 Barnett v. Brandon (6 M. & G. 640), 
 
 43. 
 Barnett, Ex parte (3 Ch. D. 123), 35. 
 Barnett v. Mason (7 Ark. 253), 
 121, 222. 
 V. Terry (42 Ga. 283), 334. 
 V. Timberlake (57 Mo. 499), 
 241. 
 Barney v. Brown (2 Vt. 374), 69. 
 V. Griffin (4 Sandf. 552), 175. 
 V. Smith Mfg. Co. (22 Rep. 
 (Ky.) 782), 326. 
 Barr v. Boyle (96 Pa. St. 31), 84(1. 
 V. Gibson (3 M. & W. 390), 
 60, 187, 197. 
 
 559 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Barr v. Hatch (3 Ohio, 327), 8ia. 
 V, Meyers (3 Watts & S. 299), 
 
 207. 
 V. Myers (3 Watts & S. 299), 
 96. 
 Barraque v. Mannels (7 Ark, 516), 
 
 245. 
 Barratt v. Hyde (7 Gray, 160), 302. 
 Barrekins v. Bevin (3 Eawle, 23), 
 
 188. 
 Barrett v. Allen (10 Ohio, 426), 99. 
 V. Barrett (66 Barb. 205), 160. 
 V. Goddard (3 Mason, 107), 69, 
 
 104. 
 V. Hall (2 Aikens, 269), 193. 
 V. Hill (3 Hill, 348), 310. 
 V. Pritchard (2 Pick. 212, 512), 
 
 86, 87, 119. 
 V. Warren (3 Hill, 348), .S13, 
 324, 329. 
 Barrick v. Bng., &c.. Bank (L. B. 2 
 
 Ex. 259), 173. 
 Barron v. Alexander (27 Mo. 530), 
 167. 
 V. How (13 Mart. (La.) 144), 
 
 146. 
 D. Mullin (21 Minn. 374), 332. 
 Barrow o. Arnand(8Q. B. 604), 333. 
 Barrows v. Barrows (9 N. E. Kep. 
 371), 174. 
 V. Coles (3 Camp. 92), 82, 87, 
 323. 
 Barruss v. Madan (2 Johns. 145), 
 
 200. 
 Barry v. Bennett (7 Met. 364), 246. 
 
 V. Boninger (46 Md. 69), 271. 
 Barsow v. Paxton (5 Johns. 258) , 
 
 223. 
 Barstow v. Gray (3 Greenl. 407), 76. 
 V. Savage Mining Co (64 Cal. 
 388, 391), 312,313. 
 Bartel v. Lope (6 Oreg. 321), 228, 
 
 246. 
 Bartles v. Harris (4 Me. 146), 222, 
 227. 
 560 
 
 Bartles v. Gibson (17 Fed. Hep. 
 
 293), 174. 
 Bartlett v. Bailey (59 N. H. 408), 
 17, 20. 
 V. Blaine (83 111. 25), 162. 
 V. Blanchard (18 Gray, 429), 
 
 335, 336. 
 V. Hoppock (34 N. Y. 118), 
 
 193. 
 V. Pumell (4 A. & E. 792), 78. 
 V. Thyner (2 Hill (C. C.) Bq. 
 
 171), 247. 
 V. Williams (1 Pick. 288), 84o. 
 Bartholomew v. Pinnemore (17 
 Barb. 428), 229. 
 ■0. Leach (7 Watts, 472), 270. 
 V. Marwick (15 C. B. (n. s.) 
 
 711, 716), 332. 
 V. Warren (32 Conn. 102, 202), 
 
 311, 314. 
 V. Warner (82 Conn. 98), 185, 
 277. 
 Bartley ». New Orleans (30 La. An. 
 
 264), 334. 
 Barton v. Brown (68 Cal. 11), 84a. 
 V. Dawes (19 L. J. C. B. 302), 
 
 233. 
 V. Kane (17 Wis. 38), 89, 197. 
 V. McKelway (22 N. J. L. 165), 
 
 112. 
 ». Moss (32 111 .'50), 270. 
 B. Port Jackson, etc.. Ice Co. 
 (17 Barb. 404), 290, 306. 
 Bartram o. Farebrothers (4 Bing. 
 
 579), 176. 
 Barzizer v. Story (39 Tex. 854), 
 
 270. 
 Bashore v. Whisler (3 Watts, 498), 
 
 283. 
 Baskett v. Cafe (4 DeG. & Sm. 
 
 388), 283. 
 Bass V. White (65 N. Y. 665), 99, 
 
 113. 
 Basse v. Thomas (3 Mo. App. 472), 
 84a. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Bassettc. Bassett (10 N. H. 64), 
 228. 
 O.Camp (54 Vt;232), 69. 
 ». Lederer (3 Th. & C. 671), 
 
 272. 
 V. Sanborn (9 Gush. 58), 209. 
 Bassinger v. Spaagler (9 Col. 17S), 
 
 84a, 106. 
 Batchelder, Re (2 Low. 245), 120. 
 Bates V. Ball (72 111. 108), 26. 
 V. Coe (10 Conn. 280), 175. 
 V. Conklin (10 Wend. 390) , 104, 
 
 324. 
 V. Coster (3 N. Y. S. C. 580; 
 
 1 Hun, 400), 58. 
 B. Todd (1 Mood. & E. 106), 
 
 323. 
 V. Wllburn (10 Wis. 416), 241. 
 V. WUes (4 Handy, Ohio, 662), 
 241. 
 Batesford v. Every (44 Barb. 616), 
 
 308. 
 Battel V. Torrey (65 N. Y. 294), 253. 
 Batterman v. Pearce (3 Hill, 171), 
 
 196. 
 Baugher v. Merriman (32 Md. 185), 
 204. 
 V. Merryman (32 Md. 185), 224. 
 Baum V. Stevens (2 Ired. 411), 193. 
 Bauman v. James (3 Ch. 508), 75. 
 Baumgardner v. Taylor (28 Ala. 
 
 687), 153. 
 Baunenan v. Quackenbusb (11 
 
 Daly, 529), 317. 
 Bayard v. Parmer's Bank (62 Pa. 
 
 St. 232), 277. 
 Bayard v. McLane (3 Harr. 139), 
 209. 
 V. Shunk (1 Watts & S. 94), 
 146, 149. 
 Bayleholeo. Walters (3 Camp. 154), 
 
 167. 
 Bayliffe v. Butterworth (1 Exch. 
 
 425), 273. 
 Bayliss V. Davis (47 Iowa, 340), 8. 
 
 Bayse v. Briscoe, (13 B. Mon. 474), 
 
 186. 
 Baywater v. Bichardson (1 Ad. & E. 
 
 508), 167. 
 Baxter v. Dear (24 Tex. 17), 227. 
 V, Lansing (7 Paige Cli. 350), 
 
 219. 
 V. Mclntire (13 Gray, 166), 234. 
 V. Portsmouth (5 B. & C. 170; 
 2 C. & P. 178), 23. 
 
 V. , (7 Dow. & Ey. 614; 2 
 
 C. & P. 178), 23. 
 o. Spencer (33 Mich. 325), 221, 
 241, 246, 248. 
 Beach v. Bemis (107 Mass. 498), 
 160. 
 V. Derby (19 111. 617), 233, 
 241. 
 Beal D.Chase (31 Mich. 490), 303. 
 V. McKieman (6 La. (o. s.) 
 
 407), 270, 271. 
 0. Warren (2 Gray, 447), 174. 
 Beallr. White (94 U. S. 382), 232, 
 
 244. 
 
 Beals V. Olmsted (24 Vt. 114), 180, 
 
 187, 195. 
 
 V. Shee (10 Pa. St. 56), 22. 
 
 V. Terry (2 Sandf. 127), 335. 
 
 Beam v. Blanton, (3 Ired. Eq. 59, 
 
 62), 119. 
 Beaman v. Whitney (20 Me. 413), 
 
 239. 
 Bean w. Ainsink (8 N. Bank, 117), 
 
 240. 
 Bean v. Barney (10 Iowa, 498), 221, 
 241, 248. 
 V. Brown (64 N. H. 396), 162. 
 V. Edge (S4 N. Y. 610), 203. 
 Bear v. Harnish (3 Brewst. 116), 
 
 336. 
 Bearce v. Bowker (115 Mass. 129), 
 
 268, 310. 
 Beard ». Dennis (6 Ind. 200), 303. 
 V. Milliken (68 Ind. 231), 265. 
 V. Webb (2 B. & P. 98), 29. 
 
 561 
 
TABLE OF CASES CITED. 
 
 References are 
 Beard v, Westerman (32 Ohio St. 
 
 29), 250. 
 Beams, In re (18 Bank Beg. 500) , 
 
 130. 
 Beaty, Ex parte (1 S. W. Rep. 
 
 (Tex.) 451), 12. 
 Beatey v. Harkey (2 Smed. & M. 
 
 568), 219. 
 Beaucbamp v. Archer (58 Cal, 431; 
 
 41 Am. Rep. 266), 93. 
 Beaumont v. Brengerie (5 C. B. 
 
 301), 67, 69, 115. 
 V. Crane (14 Mass. 400), 96, 
 
 104. 
 Beaupre v. Pacific, etc., Tel. Co. 
 
 (18 U. C. Q. B. 60), 33. 
 Beauregard v. New Orleans (18 
 
 How. 497), 256. 
 Beaver v. Lane (6 Duer, 232), 327. 
 Beber v. Robert (12 Wend. 412), 
 
 188. 
 Becker v, Anderson (11 Neb. 493), 
 
 239, 240. 
 V. Boon (61 N. Y. 317), 140. 
 V. HaUgarten (86 N. Y. 167), 
 
 131, 132, 323. 
 V. Smith (59 Pa. St. 469), 203. 
 V. Vroman (13 Johns. 302), 
 
 163. 
 Beckwith v. Cheever (21 N. H. 41), 
 
 38, 40. 
 V. Talbot (95 U. S. 289), 75. 
 Beebe v. Saulter (82 III. 519), 174. 
 Beecher v, Mayall (16 Gray, 376), 
 
 108. 
 Beeker v. Smith (9 Pa. St. 469), 6. 
 Beeley v. Wingfleld (11 East, 46), 
 
 301. 
 Beeman v. Buck (3 Vt. 53), 193. 
 V. Lawton (37 Me. 543), 4, 223, 
 
 225, 240. 
 Beene v. Collenberger (38 Ala. 647), 
 
 277. 
 Bee Printing Co. v. Hickbom (4 
 
 Allen, 63), 209. 
 562 
 
 to Sections. 
 
 Benner v. Puffes (114 Mass. 376), 
 
 230. 
 Beers v. Crowell (Dudley, 28), 59. 
 V. Watterbury (8 Bosw. 396), 
 239. 
 Beeson v. Beeson (7 Pa. St. 279) , 
 
 270. 
 Regole V. McKenzie (26 Mich. 470), 
 
 332. 
 Behaley v. Hatch (Walker (Miss.), 
 
 369), 140. 
 Behn v. Burness (3 Best & Smith, 
 
 755), 197. 
 Behner v. Dale (25 Ind. 433), 335. 
 Behren v. O'Donnell (34 N. J. L. 
 
 408), 85. 
 Behrens v, McKenzie (23 Iowa 
 
 333), 22. 
 Beigham v. Blaenavon Iron Co. (L. 
 
 R. 10 Q. B. 319), 99. 
 Beirne v. Dord (5 N. Y. 8), 95, 187, 
 
 188. 
 Belate v. Morrison (8 Minn. 87), 
 
 228. 
 Belcher v. Belcher (10 Yerg. 121) , 
 25. 
 V. Costello (122 Mass. 188), 
 166, 172. 
 Belden v. Perkins (78111.449), 316. 
 Belding v. Erankland (8 Lea, 67), 
 
 170, 171, 329. 
 Belding v. Manly (21 Vt. 551), 245. 
 V. Read (3 Hurl. & C. 955), 
 232. 
 Belger v. Dinsmore (51 N. Y. 
 
 166), 322. 
 Belknap v. Wendell (31 N. H. 92), 
 
 226, 237. 
 Bell V. Bell (3 W. Va. 133), 270. 
 V. Cafferty (21 111. 411), 327. 
 V. Ellis (33 Cal. 620), 170. 
 V. Farrar (41 111. 400), 87. 
 V. Fleming (1 Beas. 13), 234. 
 V. Keepers (39 Kan. 105), 163. 
 V. Kellar (15 B. Mon. 381), 30. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Bell V. Moss (6 Whart. 189), 125, 
 126, 128, 134, 136, 321. 
 V. OfEut (10 Bush, 639), 333, 
 
 334. 
 V. Owen (8 Ala. 312), 286. 
 ■0. Prewitt (62 111. 361), 233, 
 
 234. 
 V. Quln (2 Sand. 146), 298, 
 V. Reynolds (78 Ala. 511), 335, 
 
 336. 
 
 V. Smith (5 B. & C. 188), 304. 
 
 V. Taylor (14 Kan. 277), 262. 
 
 V. Wood (1 Bay, 249), 296. 
 
 Bellam v. Tucker (1 Pick. 389), 104. 
 
 • Bellamy v. Doud (11 Iowa, 285), 246. 
 
 Beller v. Block (19 Ark. 566), 88, 
 
 205. 
 BeUows V. Smith (9N. H. 285), 140. 
 V. Wells (36 Vt. 599), 83, 104, 
 231. 
 Belto. Merriott (9 Gill, 331), 68. 
 
 ©.Stetson (26 Minn. 411), 115. 
 Belton V. Briggs (4 Des. 465), 18. 
 Bement v. Smith (15 Wend. 493), 
 
 84, 89, 104, 333. 
 Bench©. Shelden (14 Barb. 66), 171. 
 Bender©. Bowman (2Pearson, 517), 
 
 130, 136. 
 Bendston v. Strang (L. R. 4 Bq. 
 
 481), 129. 
 Benedict©. Field (4 Duer, 162), 149, 
 245. 
 V. Field (16 N. Y. 595), 120. 
 0. Field (19 N. Y. 595), 144. 
 ©. Ker (29 Up. Can. C. P. 410), 
 
 6,7. 
 ». Schaettle (12 Ohio St. 515), 
 
 135. 
 ©. Smith (10 Paige, 126), 238. 
 Benham v. Bishop (9 Conn. 330), 
 
 19. 
 Beninger ©. Corwin (24 N. J. L. 
 
 257), 167. 
 Benjamin ©. Andrews (5 C. B.(n.s.) 
 299), 811. 
 
 Benjamin ©. Elmira R. R. Co. (4 
 
 Barb. 441), 53. 
 Benner v. Puffer (114 Mass. 378), 
 
 85, 206. 
 Benner's Estate (3 Brewst. 398), 
 
 287. 
 Bennett v. Bartlett (6 Cush. 225), 
 185. 
 ©. Brumfitt (L. R. 3 C. P. 28), 
 
 77. 
 ©. Bucham (76 N. Y. 386), 195. 
 V. Covington (22 Fed. Rep. 
 
 816), 272, 
 ©.Holt (2Yerg. 6),204. 
 ©. Hull (10 Johns. 364), 56. 
 o. Judson (21 N. y. 239), 173. 
 V. Nye (4 Green (Iowa) 410), 
 
 58. 
 V. Sims (1 Rice, 421), 206. 
 V. Wilder (67 111. 327), 152. 
 V. Van Syckles (4 Duer, 462) , 
 270. 
 Bensell ©. Chancellor (5 Whart. 
 
 371), 21. 
 Benson v. Lamb (9 Beav. 602), 98. 
 Bent V. Cobb (9 Gray, 397), 78, 
 
 286. 
 Bentall v. Barr (3 Barn & C. 423), 
 97. 
 V. Burns (3 B & C. 423), 104. 
 Bentz ». Rockey (69 Pa. St. 71), 
 
 84a, 175. 
 Berelch ©. Marye(9 Nev. 312), 319. 
 Berger ©. New Orleans (35 La. 
 
 Ann. 523), 336. 
 Bergheim ©. Iron Co. (L. R. 10 Q. B. 
 
 319), 103. 
 Berkley ©. Cannon (4 Rich. 136), 25. 
 Berkling ©. Watling (7 Ad. & E. 
 
 22;, 321. 
 Beroller v. Ramsey (Holt N. P. 779) 
 
 17. 
 Berly ©. Taylor (5 Hill, 581), 125. 
 Bernshouse ©. Abbott (16 Vroom, 
 531), 271. 
 
 563 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Bernshouse v. Abbott (45 N. J. L. 
 
 631), 142, 269. 
 Berry v. Bridger (3 Taunt. 130), 
 
 148. 
 V. Cutts (42 Me. 455), 175. 
 V. Dwlnel (44 Me. 255), 335. 
 V. Bnsell (2 Gratt. 333), 84a. 
 V. Griffin (10 Md. 27), 144, 
 
 146, 269. 
 ». Noll (54 Ala. 446), 99. 
 V. Noll (54 Ala. 451), 140. 
 O.Paige (10 Gray, 398), 273. 
 V. Wilson (10 Md. 27), 146. 
 Bertelson v. Bowers (81 Ind. 512), 
 
 84. 
 Berthold v. Eeybum (65 Mo. 595), 
 
 140. 
 Best V. Bander (29 How. Pr. 489), 
 
 306. 
 Best V. Flint (58 Vt. 543), 190. 
 Bethel Steam Mill Co. v. Brown 
 
 (57 Me. 18), 83, 84, 104. 
 Bethlehem v. Bnnis (40 N. H. 34), 
 
 219. 
 Betterton v. Boope (3 Lee (Tenn.) , 
 
 220), 148. 
 Betts V. Gibbons (2 A. & E. 73), 
 
 122. 
 Betz V, Franz (13 Atl. Rep. 940), 
 
 106. 
 Bevans v. Bolton (31 Mo. 437), 
 
 239, 240. 
 Beverley v. Lincoln Gas Light Co. 
 
 (6 A. & B. 829), 115, 
 
 213. 
 Beverley's Case (4 Rep. 126), 21. 
 Bevis V. Heflin (63 Ind. 129), 142. 
 Beurmau v. Van Buren (44 Mich. 
 
 496), 176. 
 Bexwell v. Christie (1 Cowp. 396), 
 
 165, 285. 
 Beymer v. McBride (37 Iowa, 114), 
 
 335. 
 Bianchi v. Nash (1 M. & W. 545), 
 
 116,213. 
 564 
 
 Bibb V. Hitchcock (49 Ala, 468), 
 
 296. 
 BickeUy v. Sheets (24 Ind. 1), 
 
 294. 
 Bicker v. Hughes (4 Ind. 146), 69. 
 Bickley v. Keenan (60 Ala, 293), 
 
 77, 225. 
 Bicknall v. Watterman (5 E. I. 
 
 43), 144. 
 Bicknell v. Buck (58 Ind. 364), 
 
 832. 
 V. Byrnes (23 How, Pr. 486), 
 
 286. 
 Bidault V. Wales (19 Mo. 36; 20 
 
 Mo. 546), 170. 
 Blddle V. Black (99 Pa, St. 380), 
 
 171. 
 V. Levy (1 Stark. 20), 168. 
 Bigelow V. Baxall (38 Up. Can. 
 
 452), 190. 
 V. Benedict (70 N. Y. 202), 302, 
 V. Heaton (6 Hill, 44), 170. 
 V. Huntley (8 Vt. 161), 325. 
 Bigg V. Whiskin (14 C. & B. 195), 
 
 70. 
 Biggars v. Bird (55 Ga. 650), 228. 
 BIgge V. Parkinson (7 H. & N. 
 
 955), 191. 
 Biggs V. Barry (2 Curtis, 259), 132, 
 
 170, 171. 
 Bigler V. Flickinger (55 Pa. St. 279), 
 
 166. 
 V. Waller (14 Wall. 298), 140. 
 Bigley v. Fisher (63 Pa. St. 152), 1, 
 
 45, 87, 250. 
 Bill V. Bament (9 M. & W. 36), 67, 
 
 69, 72, 114. 
 V. Porter (9 Conn. 23), 144. 
 Billings ». Russell (101 N. Y. 226), 
 
 174. 
 V. Vanderbeck (23 Barb. 546), 
 
 335. 
 Bills V. Comstock (12 Met. 468), 
 
 298. 
 Bina's Appeal (55 Pa. St. 294), 302. 
 
TABLE OF CASES CITED. 
 
 References ar 
 Binford, In re (3 Hughes, 300), 325. 
 Bingham v. Bailey (55 Tex. 381 ; 40 
 Am. Bep. 801),20. 
 V. Barley (55 -rex. 281), 18. 
 V. Jordan (1 Allen, 373), 240. 
 V. Maxey (15111. 295), 185, 277. 
 V. Noyes (Chitty ou Bills (21) 
 28), 30. 
 Binney v. Annan (107 Mass. 95), 
 
 337. 
 Bird V. Brown (4 Exch. 786), 126. 
 V. Davis (14 N. J. Eq. 467), 
 
 248. 
 V. Monroe (66 Me. 347), 72. 
 V. Muhlinbrink (1 Rich. 199), 
 
 68. 
 V. Wilkinson (4 Leigh, 266), 228, 
 239. 
 Bird's Tust (3 Ch. D. 214), 35. 
 Birdseye v. Frost (34 Barb. 367), 
 
 195. 
 Birdsongu. Birdsong (2 Head, 289), 
 
 26. 
 Bisbing v. Third Nat. Bank (93 Pa. 
 
 St. 79), 84o. 
 Biscoffsheim v. Baltzer (20 Fed. 
 
 Bep. 890), 270. 
 Bishop V. Brown (51 Vt. 330), 209. 
 «. Crawshay (3 B. & C. 415), 89. 
 V. Honey (34 Tex. 245), 294. 
 V. O'Connell (56 Mo. 158), 84a. 
 V. Bowe (3 M. & Sel. 362), 148. 
 V. Butledge (7 J. J. Marsh. 
 
 217), 224. 
 ». Schneider (46 Mo. 472), 239. 
 V. Shilito (2 Barn. & Aid. 329n.), 
 
 85, 87. 
 V. Small (63 Me. 14), 166. 
 Bismarck Bldg. Assn. v. Bolster 
 
 (92 Pa. St. 123), 84a. 
 Bismarck Building & Loan Associa- 
 tion V. Bolster (92 Pa, St. 
 123), 230. 
 BisseU V. Bascomb (39 N. Y. 276), 
 71. 
 
 e to Sections. 
 
 Bissell ». Balcom (39 N. Y. 275), 
 94, 104. 
 V. Campbell (54 N. Y. 356), 323. 
 V. Hopkins (3 Cow. 166), 222. 
 V. Pearce (28 N. Y. 252), 244. 
 Black V. Hair (2 Hill (S. C.) Eq. 
 622), 250. 
 V. Jones (64 N. C. 318), 811. 
 ». Webb (20 Ohio, 304), 88. 
 V. Woodson (39 Md. 194), 333. 
 V. Zacharie (3 How. 383, 483), 
 147, 319. 
 Black Biver Lumber Co. v. Warner 
 
 (93 Mo. 374). 
 Blackford v. Preston (8 T. K. 93), 
 
 298. 
 Blackman v. Johnson (35 Ala. 
 252), 160. 
 V. Pierce, (23 Cal. 608), 130. 
 V. Wheaton (13Minn. 326), 84a. 
 Blackburn v. Beilly (47 N. J. L. 
 290; 54 Am. Bep. 159), 
 103, 208, 209. 
 Blackburn, Ex parte (10 Ves. 204), 
 
 144. 
 Blackshear v. Burke (74 Ala. 239), 
 
 121. 
 Blackstone Bank v. Davis (12 Pick. 
 42), 218. 
 V. Hill (10 Pick. 129), 152. 
 Blackwell v. Walker (8 Fed. Bep. 
 
 419), 230. 
 Blagden v. Bradbear (12 Ves. 465), 
 
 257. 
 Blair v. Hamilton (48 Ind. 32), 210, 
 217. 
 V. Laflin (127 Mass. 618), 158. 
 Blair & Hoge v. Wilson (28 Gratt. 
 
 166), 146. 
 Blake v. Graves (18 Iowa, 312), 
 
 84a. 
 Blakemore v. Taber (22 Ind. 466), 
 
 221,247,249. 
 Blakely v. Patrick (67 N. C. 40), 
 233 
 
 565 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Blakeney v. Goode (30 Ohio St. 
 
 350), 59. 
 Blakeslee v. Rossman (43 Wis. 116), 
 
 231. 
 Blancliard v. ChUd (7 Gray, 155), 
 85, 87. 
 V. Page (8 Gray, 297), 321. 
 V. Tittavawassee Boom Co. (40 
 
 Mich. 566), 148. 
 V. Trimm (38 N. T. 225), 196. 
 Bland v. Muncaster (24 Miss, 62), 
 
 260. 
 Blant V. Gabler (77 N. Y. 461), 84a- 
 Bleiker b. Franklin (2 E. D. Smith, 
 
 , 93), 286, 
 Blen V. Bear Elver, &c. (20 Cal. 602), 
 
 163. 
 Blenkinsop v. Clayton (7 Taunt. 
 
 697), 67, 71, 115. 
 Blennerhassett v. Sherman (105 U. 
 
 S. 117), 175. 
 Bllgh V, James (6 Allen, 570), 292. 
 Bliss V. Bliss (7 Bosw. 339), 272. 
 V. Clark (16 Gray, 60), 269. 
 Block V. Maas (65 Ala. 211), 88. 
 V. McMurray (56 Miss. 217), 
 293, 308. 
 Blodgett V. Blodgett (52 Vt. 32), 
 204. 
 V. Blodsett (48 Vt. 32), 221, 
 
 222, 241, 247, 246, 248. 
 V. Hitt (29 Wis. 179), 260. 
 Blood V. French (9 Gray, 198), 183, 
 185, 277, 283. 
 V. Palmer (11 Me. 414), 8, 271, 
 273. 
 Bloom V. Richards (2 Ohio St. 387), 
 
 308. 
 Bloomer v. Denman (12 111. 240), 
 269. 
 V. Henderson (8 Mich, 396), 
 245, 
 Bloomingdale v. Memphis, etc., B. 
 E. Co, (6 Lea, 616), 136, 
 137. 
 566 
 
 Blount V. Davis (2 Dev. 19), 277. 
 Bloss V. Kittridge (6 Vt. 28), 181. 
 Blossom V. Champion (28 Barb. 
 
 217), 134. 
 V. Eailroad Co. (3 Wall. 196, 
 
 305), 258, 265, 284. 
 Bloxam v. Sanders (4 Barn. & C. 
 
 941), 93, 113. 
 Bloxsomev. Williams (6 Barn. &C. 
 
 232), 308. 
 Blum». Marks (21 La. An. 268), 135. 
 V. The Caddo (1 Woods, 64), 89. 
 Blydenburgh v. Welch (Baldw. U. 
 
 S. 331), 159. 
 Blystone v. Burgett (10 Ind. 28), 
 
 239. 
 Board v. Shipley (77 Ind. 553), 196. 
 Board of Tippecanoe Co. v. Reyn- 
 olds (44 Ind. 509), 171. 
 Board of Education v. Fonda (77 
 
 N. Y. 350), 144. 
 Boardmanc. Cutler (128 Mass. 388), 
 
 59. 
 V. Keeler (1 Aik. 158), 84a. 
 0. Spooner (13 Allen, 353), 69, 
 
 75, 77, 180, 196. 
 Bobs V. Hansley (2 Bailey, 114), 19. 
 Bobe V. Stickney (36 Ala. 482), 
 
 152. 
 Bock t>. Healy (8 Daly, 156), 117. 
 Bodin V. McCloskey, (11 La. An. 
 
 46), 282. 
 Bodley v. Anderson (2 Bradw, 450), 
 
 234. 
 Bodwatha v. Phelon (2 Allen, 242), 
 
 194. 
 Bodwell V. Webster (13 Pick. 411), 
 
 227. 
 Bogan V. Camp (30 Ala. 276), 277. 
 Bogart V. O'Eegan (1 E. D. Smith, 
 
 690), 334. 
 Bogert V. Christie (24 N. J. L. 67), 
 
 185. 
 Bogy B. Rhodes (4 Greene (Iowa), 
 
 133), 87. 
 
TABLE OF CASES CITED. 
 
 References are 
 
 BoMling V. Inglis, (3 East, 307), 
 
 129. 
 Boicew.Boice (27 Minn. 371), 241. 
 Boise V. Knox (10 Me. 40), 241, 
 Bolckow V. Seymour (17 C. B. (N. 
 
 s. 107), 196. 
 Bold V. Eayner (1 M. &"W. 842), 79. 
 Bolden v. Brogden (2 Moody & B. 
 
 113), 194. 
 Boldero v. London Loan & Dis- 
 count Co. (5 Ex. D. 47), 
 
 174. 
 Boldlng V. Reed (3 H. & C. 956), 
 
 53. 
 Bolin V. Huffnagel (1 Bawle, 9), 
 
 133. 
 BoUesB. Carll (72 Minn. 113), 245. 
 Bollman v. Burt (61 Md. 415), 208, 
 
 209. 
 ». Loomis (41 Conn. 581), 300. 
 Bolton V. Lancastiire, &c., R. R. 
 
 Co. (L. E. IC. P. 431; 
 
 86 L. J. C. P. 137), 122, 
 
 176. 
 V. Riddle (35 Mich. 13), 94, 96, 
 
 100, 218. 
 Bonazinak v. Leed (3 Low. Can. 
 
 446), 174. 
 BoncliellD. Clary (3 Brew. 194), 
 
 17. 
 Bond V. Bond (7 Allen, 1), 21. 
 
 ■u. Bronson (80 Pa. St. 360), 
 
 84ce. 
 V. Coke (71 N. C. 97), 69. 
 V. Greenwald (61 Tenn. 463), 
 
 205. 
 V. Ziegler (1 Kelly, 324), 277. 
 Bondurant V. Burfurd (1 Ala. 259), 
 
 264. 
 Bonito V. Mosquera (2 Bosw. 401), 
 
 273, 817. 
 Bonner v. Marsh (10 Smed. & M. 
 
 376), 89. 
 Bonnewell v. Jenkins (8 Ch. D. 70 
 
 C. A.), 83. 
 
 to Sections. 
 Bonney v. Ridgard (1 Cox, 145), 
 
 277. 
 
 Bonrey v. Amee (8 Pick. 236), 231. 
 
 Boody V. Davis (20 N. H. 140), 228, 
 
 234. 
 
 V. McKenney (23 Me. 617), 19. 
 
 Booker v. Jones (55 Ala. 266), 231, 
 
 232. 
 Bookwalter v. Clark (11 Hiss. C. C. 
 
 126), 333. 
 Bool V. Mix (17 Wend. 119), 18, 20. 
 Boo a V. Moss (70 N. Y. 475), 206, 
 
 826. 
 Boone v. Byre (1 H. Bl. 273), 197. 
 V. Hardie (83 N. C. 470), 84a. 
 V. Rains (7 Mon. 384), 246. 
 Booream v. Crane (103 Mass. 622), 
 
 85, 86, 87. 
 Boorman v. Brown (32 B. 511), 
 272. 
 V. Jenkins (12 Wend. 556), 188, 
 
 196, 272. 
 V. Johnson (12 Wend. 516), 163. 
 V. Nash (9 Barw. & Co. 146, 
 162), 3.36. 
 Booth V. Barnum (9 Conn. 286), 
 234. 
 V. Smith (3 Wend. 66), 146, 
 
 148. 
 V. Tyron (15 Vt. 518), 34. 
 V. Spuyten DnyvU Rolling Mill 
 (60 N. Y. 487), 218. 
 Boothby v. Brown (40 Iowa, 104), 
 840!. 
 V. Plaisted (51 N. H. 436; 12 
 Am. Rep. 140), 85, 95, 188, 
 291. 
 V. Scales (27 Wis. 638), 182, 
 190, 197, 269. 
 Bootherline v. Swires (46 Pa. St. 
 
 68), 288. 
 Boraem v. Wells (19 N. J. Eq. 87), 
 
 277. 
 Bordwell v. Colie (45 N. Y. 494), 
 186. 
 
 567 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Baring «. Corrie (2 B. & Aid. 137), 
 
 272. 
 Borland v. GufiEey (1 Grant, 394), 
 
 38. 
 Borrekins v. Bevan (3 Kawle, 23), 
 
 182. 
 Borrowman v. Drayton (2 Ex. Div. 
 
 15), 214. 
 V. Free (4 Q. B.D. 600, C. A.), 
 
 89, 107. 
 Borrows v. Turner (30 Me. 127), 
 
 239. 
 Borat V. Nalle (28 Gratt. 423), 232. 
 Borthwick v. Young (12 Ont. App. 
 
 671), 188. 
 Bostick V. Eeiser (4 J. J. Marsh. 
 
 597), 261. 
 Boston & Fairhaven Iron Works v. 
 
 Montague (108 Mass. 
 
 24), 247. 
 Boston, &c., B. B. Co. v. Bartlett (3 
 
 Gush. 224), 38, 40. 
 Boston & Main K. R. Co. v. Warrior 
 
 Mower Co. (76 Me. 261), 
 
 8. 
 Boston Ice Company v. Potter (123 
 
 Mass. 28), 35. 
 BostwickB. Burnett (74 N. T. 317), 
 
 174. 
 V. Leach (3 Day, 176), 69. 
 V. Lewis (1 Day, 250), 180. 
 V. Winton (1 Sueed, 526), 185. 
 Botsford o. Murphy (47 Mich. 
 
 536). 
 »Bott V. McCoy (20 Ala. 578) , 273, 
 
 317. 
 Bottineau v. .Etna Life Ins. Co. 
 
 (31 Minn. 126), 260. 
 Bottoms V. Mithvin (26 Ga. 481), 
 
 283. 
 Boughton V. Standish (48 Vt. 594), 
 
 116, 163. 
 Bouldin v. Bwart (63 Mo. 330), 262. 
 Bouligny v. Fortier (17 La. An. 
 
 121), 245. 
 568 
 
 Boulter v. Amott (1 C. & M. 334), 
 
 67, 114. 
 Boulton V. Jones (2 H. & N. 564), 
 
 35. 
 Bourne v. Seymore (6 C. B. 337), 
 
 33, 102. 
 Bourr U.Davis (76 Me. 223), 166. 
 Bouseyo. Amee (8 Pick. 236), 222. 
 Bowdell V. Parsons (10 East, 369), 
 
 98. 
 Bowditch 0. Green (3 Met. 360), 
 
 246. 
 Bowell V. Kilborn (16 Moo. P. C. 
 
 309), 87. 
 Bowen v. Burk (13 Pa. St. 146)> 
 
 85, 119, 217. 
 V. Fern (19 Pa. St. 359), 158. 
 V. Sullivan (62 Ind. 281), 35. 
 Bowens v. Benson (50 Mo. 26), 221, 
 
 248. 
 Bower w. Fenn (90 Pa. St. 369), 
 
 160. 
 V. Shay (105 111. 402), 277. 
 Bowers v. Anderson (49 Ga. 143), 
 
 64. 
 Bower v. Shand (2 App. Cas. 456) , 
 
 101, 116. 
 Bowess 0. Bowess (26 Pa. St. 74), 
 
 300. 
 Bowie v. Napier (1 McCord, 1), 273. 
 Bowker v. Hoyt (18 Pick. 558), 34. 
 Bowlby V. Bell (3 C. & B. 284), 59. 
 Bowles V. Round (5 Ves. 508), 285. 
 Bowman v. Clemens (50 Ind. 10), 
 
 194. 
 V. Clemens (50 Ind. 10), 187. 
 V. Conn (8 Ind, 58), 61. 
 V. Roberts (58 Miss. 126), 233, 
 
 241. 
 Bowring v. Shepard (L. R. 6 Q. B. 
 
 309), 272. 
 Bowser ». Blitz (7 Blackf. 344), 
 
 303. 
 Box». Provincial Ins. Co. (15 Grant 
 
 Ch. 337), 88. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Boyce v. Smith (9 Gratt. 704'), 21. 
 
 V. Washburn (4 Hun, 792), 59. 
 Boyd V. Anderson (1 Over. 438), 
 186. 
 V. Baker (43 Md. 182), 234. 
 V. Beck (29 Ala. 703;, 240. 
 V. Becker (29 Ala. 703), 239. 
 V. Beaudin (54 Wis. 193), 221, 
 
 247, 250. 
 V. Blankman (29 Cal. 19), 277. 
 V. Browne (6 Barr, 310), 160. 
 V. Eaton (44 Me. 51), 292. 
 V. Gunnison (14 W. Va. 1),96. 
 o. Hitchcock (20 Johns. 76), 
 
 144, 146. 
 V. Loften (34 Ga. 494), 206. 
 V. Lett (1 Con. B. 222), 113. 
 V. McFarlin (58 6a. 208), 260. 
 V. Moseley (2 Swan, 661), 121, 
 
 130, 122. 
 V. Pollock (27 W. Va. 75), 84. 
 V. Siffkin (2 Camp. 326), 214. 
 V. Whitfield (19 Ark. 447), 186. 
 •</. Wilson (83 Pa. St. 319), 188. 
 Boydell v. Drummond (11 East, 
 
 142), 75, 76. 
 
 Boyden©. Boyden (9 Met. 619), 19. 
 
 Boynton v. Libby (62 Me. 283), 
 
 325. 
 
 V. Veazie (24 Me. 286), 84, 87. 
 
 Bozza V. Eowe (30 111. 198), 256, 
 
 286. 
 Brabin v. Hyde (32 N. Y. 519), 71. 
 Brock V. Terrell (2 N. Bank Eep. 
 
 643), 240. 
 Brackett v. BuUard (12 Met. 308), 
 240, 241. 
 V. Harvey (25 Hun. 602), 240. 
 V. Hoyt (29 N. H. 264), 306. 
 V. Norton (4 Conn. 517), 142. 
 V. Tillotson (4 N. H. 208). 
 Bradbury©. Dwight (3 Met, 31), 45. 
 Bradford v. Bush (10 Ala. 386), 
 183, 269, 273, 283. 
 V. Fox (38 N. Y. 289), 145. 
 
 Bradford v. Manly (13 Mass. 139), 
 188, 196. 
 V. Marbury (12 Ala. 520; 46 
 
 Am. Dec. 264), 85, 95. 
 V. McConikay (15 W. Va. 732), 
 ^84. 
 Bradley v. Holsworth (3 M. & W. 
 422), 69. 
 V. KingsJey (43 N. Y. 634), 169. 
 V. Luce (99 111. 234), 158, 166. 
 V. Michael (1 Ind. 651), 119. 
 V. Obear (10 N. H. 477), 329, 
 V. Peixoto (3 Ves. 324), 218. 
 V. Richardson (23 Vt. 720), 273. 
 V. Wheeler (44 N. Y. 496), 87. 
 V. Wheeler (4 Roberts, 19), 84. 
 Bradeen v. Brooks (22 Me. 453), 
 
 121. 
 Bradshaw v. Coombs (102 111. 428), 
 196. 
 V. Simpson (6 Ired. Eq. 243), 
 
 277. 
 V. Thomas (7 Yerg. 497), 325. 
 V. Warner (54 Ind. 58), 206. 
 Bradstreet v. Rich (78 Me. 233), 
 
 196. 
 Brady v. Harrahy (21 Up. Can. Q 
 B. 340), 71. 
 V. Todd (9 C. B. (N. s.) 592), 
 
 183, 269. 
 V. Whitney (24 Mich. 164), 43. 
 Bragelman v. Daul (69 N. Y. 69). 
 Bragg V. Morrill (49 Vt. 46), 190. 
 Bragleyu. Kelley (25 Minn. 160), 77. 
 Brainerd v. Brainerd (15 Conn. 
 575), 228. 
 V. Peck (34 Vt. 496), 283. 
 Brayley v. Byrnes (21 Minn. 483), 
 
 241. 
 Branch v. BurMey (1 Call, 147), 
 
 142. 
 Brand v. Fetch (3 Keyes, 409), 68. 
 
 V. Brand (49 Barb. 346), 71. 
 Brandon v. Robinson (18 Ves. 429), 
 218. 
 
 569 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Brandt v. Bowlby (2 B. & Ad. 932), 
 
 85. 
 
 V. Daniels (45 111. 453), 248. 
 
 Brashear 'j. West (7 Pet. 608), 175. 
 
 Brasker v. Davidson (31 Tex. 190), 
 
 335. 
 Branton ». Griffits (2 C. JP. D. 212), 
 
 104. 
 Brantley v. Thomas (22 Tex. 270), 
 
 188, 190. 
 Brawley v. United States (96 U. S. 
 
 168), 102. 
 Breathwlt v. Rogers (32 Ark. 768), 
 
 296. 
 Breckenridge v. Holland (2 Blackf . 
 377), 277. 
 V. McAfee (54 Ind. 141), 313. 
 Bradley v. Redmond (42 Iowa, 452), 
 
 248. 
 
 Breed v. Cook (15 Johns. 242), 144. 
 
 V. Hurd (6 Pick. 356), 140, 142. 
 
 Breen v. Seward (11 Gray, 118), 245. 
 
 Brennan v. Whitaker (15 Ohio St. 
 
 446), 230. 
 
 Brent v. Bank of Washington (10 
 
 Pet. 596), 319. 
 
 V. Green (6 Leigh, 16), 286. 
 
 Brenton v. Davis (8 Blatchf . 317), 
 
 190. 
 Brett V. Carter (2 Low. 458), 53, 
 232. 
 V. Tomlinson (16 East, 293), 
 296. 
 Brettel v. Williams (4 Bxch. 523), 
 
 75. 
 Brewer v. Housatonic Ry. Co. (104 
 Mass. 593), 333. 
 V. Housatonic B. R. Co. (107 
 
 Mass. 277), 45. 
 V. Michigan Salt Association 
 
 (47 Mich. 526), 87. 
 
 V. Salisbury (9 Barb. 511), 88. 
 
 V. Smith (3 Greene, 44), 82, 88. 
 
 Brewster v. Bonn (8 Cal. 606), 144. 
 
 V. Burnett (125 Mass. 28), 163. 
 
 570 
 
 Brewster v. Uurnett (125 Mass. 68), 
 
 149, 209. 
 
 V. Countryman (12 Wend. 446). 
 
 V. Taylor (63 N. T. 587), 66. 
 
 V. Vail, (1 Spencer (N. J.), 56), 
 
 255. 
 
 Brice v. Hamilton (12 S. C. 37), 
 
 152. 
 Bridge v. Batchelder (9 Allen, 394), 
 146, 
 V. Eggleston (14 Mass. 245), 
 174. 
 Bridgeford v. Adams (46 Ark. 136), 
 170. 
 V. Crockery (60 N. Y. 627), 333. 
 V Riddel (65 lU. 261), 174. 
 Bridgeport Bank v. New York, etc. 
 R. R. Co. (30 Conn. 
 275.) 
 Bridenbecker v. Lowell (32 Barb. 
 
 9), 152. 
 Bridges v. Hawksworth(7 Eng L. 
 
 & Eq. 424), 313. 
 Brietung v. Lindauer (37 Mich. 
 
 217), 144. 
 Brigg V. Hiltoa (99 N. T. 517), 
 
 180, 196, 197. 
 Briggs V. A Light Boat (89 Mass. 
 287), 87. 
 V. Leitelt (41 Mich. 79), 239. 
 V. Mette (42 Mich. 12), 239. 
 C.Oliver (68 N. Y. 336), 249. 
 Brigham v. Carlisle (78 Ala. 243), 
 336. 
 V. Fawcett (42 Mich. 542), 175. 
 V. Meade (10 Allen, 246), 302. 
 V. Potter (14 Gray, 622), 290, 
 
 292. 
 V. Weaver (6 Ci;;ih. 298), 239. 
 V. Winchester (1 Met. 390), 
 221. 
 Brighty v. Norton (3 B. & S. 305), 
 
 100. 
 Brindley v. Cilwyn Slate Co. (55 
 L.J. Q. B. 67), 133. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Bringhdff v. Munzenmaier (20 
 
 Iowa, 513), 230. 
 Brink v. FreofE (44 Mich. 69), 241. 
 Brinley «. Spring (7 Greenl. 241), 
 
 104. 
 V. Tibbets (7 Greenl. 70), 163. 
 Brinsmead v. Harrison (L. R. 6 C. 
 
 P. 584), 43. 
 Brittain v. McKay (1 Ired. 265), 
 
 59. 
 Britten v. Turner (6 N. H. 481), 
 
 209, 332. 
 Brisbane v. Adams (3 N. T. 129), 
 
 169, 303. 
 Brisbam v. Boyd (4 Paige 17), 39. 
 Bristol V Tracy (21 Barb. 236), 
 
 193. 
 V. Wilsmore (1 B. & C. 514), 
 
 168. 
 Broach v. Barfleld (57 Ga. 601), 
 
 228. 
 Broad v. JoUyfe (Cro. Jac. 596), 
 
 303. 
 Broadhead v. McKay (46 Ind. 595), 
 
 221, 241, 247, 248. 
 Broadman o. Spooner (18 Allen, 
 
 353), 76. 
 Broadwell^. Howard (77 III. 305), 
 
 7, 84o, 88, 106. 
 Brock V. Barnes (40 Barb. 521), 
 
 270. 
 V. Jones (8 Tex. 78), 286. 
 V. Rice (27 Gratt. 812), 283. 
 Brockenbrough v. Brockenbrough 
 
 (31 Gratt. 580), 232. 
 Brockway v. Maloney (102 Mass. 
 
 308), 85, 92. 
 Brogden v. Metropolitan Railway 
 
 Co. (2 App. Cas. 672), 
 
 33, 38, 42. 
 Bromley v. Elliott (38 N. H. 287), 
 
 271. 
 Bron V. Bechel (20 La. Ann. 254; 
 
 s. c. 2i La. Ann. 189), 
 
 292. 
 
 Bronson ti. Wiman (10 Barb. 406), 
 
 68. 
 Brook Iron Co. v. O'Brien (135 
 
 Mass. 442), 132. 
 Brooker v. Bobinz (26 Ark. 660), 
 297. 
 V. Scott (11 M. & W. 67), 17. 
 Brooklyn Bank v. DeGranw (23 
 
 Wend. 342), 140. 
 Brooks V. Aldrich (17 N. H. 443), 
 233. 
 ». Elgin (6 Gill, 254), 148. 
 V. Hubbard (8 Conn. 58), 150. 
 V. Jameson (55 Mo. 505), 269. 
 V. Powers (IS Mass. 244), 84o. 
 V. KufE (37 Ala. 371), 225. 
 V. Record (47111. 30), 243. 
 Broughton v. Silloway (114 Mass, 
 71), 141, 142, 174, 282, 
 283. 
 Brothers v. Brothers (7 Ired. Eq. 
 
 150), 270. 
 Brower v. Lewis (19 Barb. 574), 
 188. 
 y. Fisher (4 Johns. Ch. 441), 21. 
 0. Peabody (13 N. Y. 122), 134. 
 V. Peabody (3 Kern. 126), 323. 
 Brown v. Allen (35 Iowa, 306), 58, 
 232. 
 D. Bateman (L. R. 2 C.P. 272), 
 
 51. 
 V. Bellows (4 Pick. 189), 46. 
 V. Bennett (8 Johns. 96), 246. 
 V. Bement (8 Johns. 96), 221, 
 
 223, 237. 
 V. Bigelow (10 Allen, 242), 194, 
 
 195. 
 V. Blunt (72 Me. 41S), 112. 
 V. Bowen (30 N. Y. 541), 98. 
 B. Brown (3 Conn. 299), 21. 
 V. Brown (108 Mass. 386), 21. 
 V. Burns (67 Me. 535), 152. 
 V. Butchers' Bank (6 Hill, 443), 
 
 77. 
 V. Cartiden (11 Cnsh. 348) 158. 
 571 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Brown v. Castler (11 Cnsh. 348), 
 
 160, 166, 1167. 
 V. Central Land Co. (42 Cal. 
 
 257), 269. 
 ». Chllds (2 Duvall, 314), 84. 
 V. Coates (56 Ala. 439), 225. 
 V. Cockburn (37 Up. Can. Q. B- 
 
 592), 184, 185. 
 V. Cook (3 E. D. Smith, 123), 
 
 241. 
 V. Corp. of Lindsay (35 Up. 
 
 Can. Q. B. 509), 197. 
 V. Dewey (1 Sandf. Ch. 56), 
 
 204, 224. 
 V. Dunckel (46 Mich. 29), 144. 
 V. Dysinger (1 Eawle, 408), 140. 
 V. Fitch (43 Conn. 512), 206, 
 
 325. 
 V. Fisher (9 Grant (Ont.) 423), 
 
 169. 
 V. Foster (113 Mass. 136), 213. 
 V. Greer (13 Ga. 285), 249. 
 V. Hall (6 Lans. 177), 61. 
 O.Hayes (52 Me. 278), 325. 
 V. Haynes (52 Me. 578), 210, 
 
 216. 
 V. Heathcote (1 Atk. 160), 240.. 
 V. Hitchcock (28 Vt. 452), 6. 
 V. HofE (5 Paige, 235), 284. 
 V. Holbrook (4 Gray, 102), 8. 
 V. Holcomb (1 Stock. 297), 176. 
 V. Holmes (13 Kan. 482), 233. 
 V. Howe (3 H. & N. 484; 27 L. 
 
 J. Ex. 332 ; Ex. Ch. 4 H. 
 
 &N. 822; 29 L. J. Ex. 6), 
 
 89. 
 V. Johnson (19 M. & W. 331), 
 
 99. 
 ». Keifer (71 N. Y. 516, 610), 
 
 234. 
 V. Kimball (12 Vt. 617), 209. 
 V. Kimmel (67 Mo. 430), 106. 
 V. Kinsey (81 N. C. 245), 305. 
 V. Knox (6 Mo. 302), 175. 
 V. Lacy (83 Ind. 436), 152. 
 572 
 
 Brown v. Leach (107 Mass. 364), 
 
 166, 167. 
 V. Lee (7 Ga. 267), 175. 
 V. Leeson (2 H. Bl. 43), 301. 
 V. Lipscomb (9 Port. (Ala.) 
 
 472), 221, 241, 246, 248. 
 V. Minturn (2 Gall. (U. S.) 557), 
 
 175. 
 V. Montgomery (20 N.Y. 287), 
 
 146, 159. 
 V. Morris (83 N. C. 251), 273. 
 V. Olmsted (50 Cal. 162), 144. 
 V. Owen (94 Ind. 31), 196. 
 D.Phelps (103Mass. 303), 302. 
 V. Phillips (3 Bush, 656), 221, 
 
 241, 248, 
 V. Pierce (97 Mass. 46), 185, . 
 
 186. 
 0. Piatt (8 Bosw. 324), 232, 
 
 237, 238. 
 V. Post (1 Hun, 304), 270. 
 V. Sanborn (21 Minn. 402), 58, 
 
 61. 
 V. Scott (31 Pa. St. 357), 144. 
 V. Speyer (20 Gratt. 309), 302. 
 V. Sayler (27 Vt. 227), 190. 
 V. Stanclift (80 N. Y. 627), 59. 
 V. Thompson (59 Me. 372), 232, 
 
 233. 
 ». Todrell (3 C. & P. 30), 22. 
 ». Turner (7 T. E. 631), 272. 
 V. Tnttle (66 Barb. 169), 158. 
 V. Wallace (4 Gill & J. 479), 
 
 284. 
 V. Webb (20 Ohio, 389), 84a, 
 
 232, 238, 240. 
 V. Whipple (58 N. H. 209), 76. 
 Browning v. Hamilton (42 Ala. 
 
 484), 88. 
 0. Magill (4 Harr. & J. 308), 
 
 311. 
 Brownlee v. Bolton (44 Mich. 218), 
 
 333, 334. 
 V. Campbell (5 App. Cas.925), 
 
 284. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Brownson ». Oleason (7 Barb. 472). 
 
 96. 
 Bryant v. Booze (6S 6a. 438), 39. 
 V. Carson Bivei Lumbering Co. 
 
 (3 Nev. 313), 221, 248. 
 V. Crosby (40 Me. 9), 181. 
 V. Crosby (36 Me. 662), 228. 
 V. Isburgh (13 Gray, 687), 197. 
 V. Kelton (1 Tex. 415), 84a. 
 V. Mansfield (22 Me. 360), 174. 
 V. Moore (26 Me. 84), 188, 269, 
 
 268. 
 V. Pember (45 Vt. 487), 187. 
 ». Fennel) (61 Me, 108), 231. 
 V. Whitchen (52 N. H. 158), 
 
 310, 311, 314. 
 Bryan v. Baldwin (52 N.Y. 233), 
 
 274. 
 V. Burbin (26 Mo. 423), 175. 
 V. Gordon (11 Mich. 531), -239. 
 ©.Lewis (Keg. & Moody, 385c), 
 
 302. 
 V. Robert (1 Strobli. Eq. 334), 
 
 248. 
 Bryans v. Nix (4 M. & W. 775), 89. 
 Bryson v. Plicenix (16 Mo. 18), 240. 
 Buchanan v. Harvey (12 111. 336), 
 
 163. 
 Buck V. First Nat. Bank (27 Mich. 
 
 292), 296. 
 V. Levy (101 N.Y. 514), 188. 
 V. Payne (52 Miss. 271), 241, 
 
 244. 
 V. Pickwell (1 Williams (Vt.), 
 
 167), 74, 76. 
 V. Pickwell (27 Vt. 157), 69. 
 Buckles V. Cunningham (14 Miss. 
 
 368), 277. 
 V. Archer (21 Barb. 585), 170. 
 V. Furniss (15 Wend. 137; 17 
 
 Wend. 504), 130, 122, 
 
 145, 135. 
 V. Wheeler (52 Mich. 1), 314. 
 Buckey v. Snouffer (10 Md. 149), 
 
 256. 
 
 Buckingham v. Osborne (44 Conn. 
 
 133), 63. 
 Bucklln V. Beal (88 Vt. 494), 324. 
 Backmau v. Bryan (3 Benio, 340), 
 
 294. 
 Buckmaster -j. Consumers' Ice Co. 
 
 (6 Daly, 313), 33. 
 V. Harrop (13 Ves. 460), 286. 
 V. Moore (21 Vt. 204), 316. 
 Bucknam v. Goddard (21 Pick. 71), 
 
 186. 
 Buckner v. Chambliss (30 Ga. 
 
 652), 169. 
 Bucksport R. R. Co. v. Brewer (67 
 
 Me. 295), 213. 
 Buckwalter v. Craig (55 Mo. 71), 
 
 269. 
 Buddc.Fairinaner (8 Bing48), 194. 
 Buddie V. Green (3 Hurl. & N. 
 
 906; 27L. J.Ex. 33"),113. 
 Budlong V. Cottrell (64 Iowa, 234), 
 
 325. 
 Buechman B. Cold (52 Md. 202), 
 
 158. 
 Buell V. Chapin (99 Mass. 696), 154. 
 Buffalo Barb Wire Co. v. Phillips 
 
 (64 Wis. 338), 336. 
 Buffan V. Deane (8 Cush. 41), 311. 
 Buffiugton V. Curtis (15 Mass. 628), 
 
 105, 323. 
 V. Gerrish (15 Mass. 158), 
 
 329. 
 
 Buffum». Green (5 N. H. 71), 175. 
 
 V. Merry (3 Mass. 478), 6. 
 
 V. Beane (8 Cush. 41), 314. 
 
 Burghee ». Stevens (33 Vt. 389), 
 
 121. 
 Bulkeler v. Welch (31 Conn. 339), 
 
 316. 
 Bulkley v. Andrews (39 Conn. 70), 6. 
 Bull V. Harrigan (17 B. Mon. 349), 
 
 306. 
 V. Robinson (10 Ex. 341), 95. 
 V. Griswold (19 III. 631), 59, 
 
 238. 
 
 573 
 
TABLE OF CASES CIIED. 
 
 References are to Sections. 
 
 Bullard v. Waite (16 Gray, 56), 69, 
 
 104. 
 Bnllls V. Borden (21 Wis. 135), 84a. 
 Bullitt V. Taylor (34 Miss. 708), 
 
 174. 
 Bullock V. Finley (28 Fed. Rep. 
 518),3'32. 
 V. Narrott (49 111, 62), 237, 239. 
 V. Williams (16 Pick. 33), 233, 
 238, 240. 
 Bulfln V. Clark (17 Ves. 366), 30. 
 Bunce v. Beck (43 Mo. 279), 197. 
 Bunacleugh v. Foolman (3 Daly, 
 
 236), 221, 222, 247. 
 Bunker v. Barron (3 New Eng. Rep. 
 697), 144. 
 V. McKenny (63 Me. 529), 325. 
 V. Rand (19 Wis. 253), 262. 
 Bunn V. Guy (4 East, 190), 303. 
 V. Rikes (4 Johns. 426), 301. 
 V. Valley Lumber Co. (51 Wis. 
 376), 121. 
 Bunnell o. Whitlaw (14 Up. Can. 
 
 Q. B. 241), 193. 
 Bunn V. Winthrop (1 Johns. Ch. 
 
 329), 296. 
 Bunney v. Coyntz (4 B. & Ad. 568), 
 
 122. 
 Bunney v. Poyntz (4 B. & Ad. 568), 
 
 120. 
 Burbank o. Croker, (7 Gray, 158), 
 
 85. 
 Burbridge ij. Seeley (Wright, 359), 
 
 84o. 
 Burch V. Spencer (15 Hun, 304), 
 
 191. 
 Burchard v. Frazer (23 Mich. 228), 
 
 146. 
 Burchell v. Clark (2 C. P. D. 88, 
 
 C. A.),35. 
 Burd V. Smith (4 Dall. 85), 175. 
 Burdick v. Green (15 Johns. 249), 
 144. 
 V. McVannler (2 Den. 170), 
 241, 248. 
 574 
 
 Burditt V. Hunt (25 Me. 419), 233, 
 
 236. 
 Burge V. Cone (6 Allen, 412), 69, 
 
 84a, 104. 
 Burger v. Strangham (7 J. J. . 
 
 Marsh. 583), 296. 
 B urges 0. Pollock (63 Iowa, 273), 
 
 21. 
 Burgen v. Wilkinson (13 E. I. 646), 
 
 160. 
 Burgess v. Wilkinson (13 B. I. 
 
 646), 184, 
 Burgert v. Brochart (59 Mo, 80), 
 
 84a. 
 Burghart v. Angerstein (6 C. & P. 
 
 690), 17. 
 Burgin v. Burgin (1 Ired. L. 453), 
 
 175. 
 Burgman v. McGuive (32 Ark. 733), 
 
 144, 
 Burk V. Haley (2 Gilm. 614), 286. 
 V. McWhirter (35 Up. Can. Q. 
 
 B. 1), 314. 
 Burks V. Hubbard (69 Ala, 379), 
 
 142, 269. 
 Burley v. Russell (10 N. H. 184), 
 
 168. 
 Burman v. Herring (4 Harring. 
 
 468), 84a. 
 Burnby v. Bollett (16 M. & W. 
 
 644), 191. 
 Burnhami). Marshall (56 Vt. 366), 
 
 121. 
 V. Roberts (70111. 19), 335. 
 V. Wlnsor (5 Law Rep. 607), 
 
 130. 
 Burnell v. Marion (44 Vt. 277), 86. 
 Burnett v. Denniston (5 Johns. Ch. 
 
 35. 
 Burnhisel v. Firman (22 Wall. 
 
 170), 240. 
 Burns v. Harris (66 Ind. 536), 233. 
 Burnside v. Twitchell (43 N. H. 
 
 390), 230. 
 Burn V. Borden (61 III. 388), 260. 
 
TABLB OF CASES CITED. 
 
 References are to Sections. 
 
 Burr V. Clement (9 Col. 1), 157. 
 
 V. Howard (58 Ga. 56t), 268. 
 Burrall v. Bushwlck R. R. Co. (75 
 
 N. Y. 220), 319. 
 Burrell v. Marvin (44 Vt. 277), 
 206. 
 V. N. Y., &o., Co. (14 Mich. 
 34), 336. 
 Burrill v. Phillips (1 Gall. 360), 
 273. 
 V. Stevens (73 Me. 395), 170, 
 171. 
 Burril v. Watertown Bank (51 
 
 Barb. 165), 119. 
 Burroughs v. Bayne (5 Hurl. & M. 
 296), 316. 
 V. Richman (1 Green (N. J.) 
 
 233), 25. 
 V. Whitaker (71 N. Y.291), 87. 
 V. Wright (16 Vt. 619), 260. 
 Burrow, Ex parte (L. R. 6 Ch. Div. 
 
 783), 130. 
 Burrous v. "Whitaker (71 N. Y. 291), 
 
 87. 
 Burt V. Dewey (40 N. Y. 83), 185, 
 
 186. 
 BxiTtv. Sexton (1 Hun, 551), 196. 
 Burling v. Stonard (2 P. Wms. 160), 
 
 277. 
 Burtis V. Bradford (122 Mass. 129), 
 247. 
 V. Thompson (42 N. Y. 246), 
 335. 
 Burton's Appeal (93 Pa. St. 214), 
 
 319. 
 Burton v. Baird (44 Ark. 556), 85, 
 95. 
 V. Curyea (40 111. 320), 122, 320. 
 V. Great Northern Railway Co. 
 
 (9 Ex. 507), 40. 
 V. Goodspeed (69 111. 237), 271, 
 
 273. 
 V. Spiers (92 N. C. 503), 260. 
 V. Stewart (3 Wend. 239), 163. 
 V. Tunnehill (6 Blackf. 470), 
 
 Busenbarke v. Ramsey (53 Ind. 
 
 499), 234. 
 Bush V. Baldrey (11 Allen, 367), 
 143. 
 V. Bender (113 Pa. St. 94), 4 
 
 Atl. Rep. 213), 85. 
 V. Canfleld (2 Conn. 485), 335. 
 V. Cole (28 N. Y. 261), 165,, 
 
 282, 288. 
 
 V. Davis (2 M. & S. 397), 87, 88. 
 
 V. Holmes (53 Me. 417), 63, 
 
 335. 
 
 Bushel V. Wheeler (15 Q. B. 442), 67. 
 
 Bushnell v. Avery (121 Mass. 148), 
 
 247. 
 Bushwell V. Bicknell (17 Me. 344),, 
 
 5. 
 Buskirk v. Cleveland (41 Barb. 610), 
 
 231. 
 Buson V. Dougherty (11 Humph. 
 
 50), 325. 
 Bussey V. Barrett (9 M. & W. 312), 
 
 217. 
 Bussing V. Rice (2 Gush. 48), 329. 
 Bnswell v. Bicknell (17 Me. 344), 
 
 213, 325. 
 Butt V. Ellett (19 Wall. 644), 63, 
 
 232. 
 Butterfleld v. Lathrop (71 Pa. St. 
 226), 7. 
 V. Baker (5 .Pick. 622), 231, 232. 
 Butters v. Glass (31 Up. Can. Q. B. 
 379), 79. 
 0. Haughwout (42 111. 18), 234, 
 
 329. 
 B. Stanley (21 Up. Can. C. 
 P. 402), 93. 
 Butler's Appeal (26 Pa. St. 63), 
 
 159, 171. 
 Butler V. Butler (.10 B. I. 501), 277. 
 V. Collins (12 Cal. 457), 327. 
 B. Dorman (68 Mo. 298), 142, 
 
 269, 272. 
 V. Gannon (53 Md. 333), 325. 
 V. Hill (1 Baxt. 375), 231, 232. 
 
 575 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Butler V. Miller (1 N. Y. 496), 221. 
 V. Moore, (73 Me. 151), 174. 
 V. MuMhill (1 Bligh, 137), 25. 
 V. Horwitz, (7 "Wall. 269), 143. 
 V. Northumberland (58 N. H. 
 
 39), 163. 
 V, Northumberland (50 N. H. 
 
 33), 197, 308. 
 Vc Thompson (92 U. S. 412), 
 
 76, 79. 
 V. Tufts (13 Me. 202, 302), 246, 
 
 185. 
 V. White (25 Minn. 432), 175. 
 Buttler V. Butler (77 N. Y. 472), 
 
 333. 
 Butts V. Peacock (23 Wis. 359), 
 234. 
 V. Dean (2 Met. 76), 144, 146, 
 Buxton v. Hamblen (32 Me. 348). 
 
 290, 306. 
 Byassee v. Reese (4 Met. (Ky.) 
 
 372), 69. 
 Byerlee v. Mendel (39 Iowa, 382) , 
 
 209. 
 Byers v. Chapin (28 Ohio St. 300), 
 
 35, 190. 
 Byran v. Gordon (11 Mich, 531), 
 
 234, 
 Byrd v. Hall (2 Keyes, 646,) 170, 
 171. 
 V. Hughes (84 111. 174), 270. 
 V. McDaniel (33 Ala. 18), 247. 
 V. Odem (9 Ala. 755), 304. 
 V. Wilcox (8 Bax. 65), 222. 
 Byrne v. Jansen (50 Gal. 624), 187, 
 193. 
 V. Schwing (6 B. Mon. 199), 
 
 273. 
 V. Van Tienhoven (2 C. P. D. 
 344), 40, 286. 
 Bymside v. Burdett (15 W. Va. 
 
 702), 185. • 
 
 Byron v. May (2 Chand. 103), 221. 
 
 Bywater v. Richardson (1 Ad. & E. 
 
 508), 194, 284. 
 
 576 
 
 C. 
 
 Cabeer v. Campwell (30 Pa. St. 
 
 254), 131. 
 Cadbury v. Dubai (10 Pa. St. 266), 
 
 277. 
 Caden ». Farwell (98 Mass. 137), 
 
 218. 
 Cadogan v. Kennett (Cowp. 432), 
 
 174. 
 Cadwallader v. West (48 Mo. 483), 
 
 270. 
 Cadwell v. Pray (41 Mich. 307), 
 
 232, 243. 
 Cagney v. Cuson (77 Ind. 497), 168. 
 Cahen v. Piatt (69 N. Y. 348; 25 
 Am. Rep. 203), 116. 
 V. Piatt (69 N. Y. 343), 333. 
 V. Piatt (69 N. Y. 352), 336. 
 Cahlll V. Patterson (30 Vt. 592), 
 209. 
 V. Smith (4 N. E. Rep. 739), 
 186. 
 Cain V. Dickinson (60 N. H. 371), 
 168. 
 V. McGuire (13 B. Mon. 340), 
 
 59. 
 V. Southern Express (1 Bast. 
 
 315), 296. 
 V. Young (1 Utah, 361), 277. 
 Calcutta Company v. De Mattos 
 (32 L. J. Q. B. 322), 86, 
 89. 
 V. De Mattox (32 L. J. Q. B. 
 326), 84. 
 Caldwell v. Ball (1 T. R. 206), 214. 
 V. Bartlett (3 Duer, 341), 217, 
 
 327, 329. 
 V. Blake (6 Gray, 402), 111. 
 ». Wentworth (14 N. H. 431), 
 152. 
 Calhoun v. Calhoun (2 Strobh. 231), 
 
 30. 
 Calkins v. Clement (54 Vt 635), 
 241. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Calkins v. Falk (38 How. Pr. 62; 1 
 Abb. App. 291), 76, 79. 
 V. Griswold (18 Han, 208), 35. 
 V. Lockwood (16 Conn. 276), 
 84a. 
 Call V. Gray (37 N. H. 428), 233. 
 V. Seymour (40 Ohio, St. 670), 
 325. 
 Callaghan v. Myers (89 111. 570), 83. 
 Callahan v. Babcock (21 Ohio St. 
 
 281), ISO. 
 Callanan v. Brown (31 Iowa, 333), 
 
 193. 
 Callaway v. Jones (19 Ga. 277), 
 
 195. 
 Callen v. Thompson (3 Yerg. 475), 
 
 84a. 
 Caloit w. McFadden (13 Tex. 324), 
 
 336. 
 Calvin v. Williams (3 H. & J. 38), 
 
 59. 
 Camden v. Mullen (29 Cal. 566), 
 
 29. 
 Camden, etc.. Oil Co. ». Schlens (59 
 
 Md. 31), 335. 
 Cameron v. Durkheim (55 N. Y. 
 425), 802. 
 V. Marvin (26 Kan. 612, 629), 
 
 232, 238, 240. 
 
 V. Logan (8 Iowa, 434), 283. 
 
 V. Wells (30 Vt. 633), 113. 
 
 Camey v. Carney (7 Baxt. 204), 84a. 
 
 Camidge v. Allenby (6 B. &C. 373), 
 
 144. 
 Cammell v. Sewell (3 H. & N. 617), 
 
 275. 
 Camp V. Camp (2 Hill, 628), 238. 
 Camp o. Hamlin (55 Ga. 259), 333, 
 
 334. 
 Campbell v. Birch (60 N. Y. 214), 
 245. 
 V. Dearborn (109 Mass. 130), 
 
 204, 228. 
 V. Fleming (1 Ad. & E. 40), 
 163. 
 
 Campbell ». Gittings (19 Ohio, 347), 
 207. 
 V. Hamilton (63 Iowa, 293) , 
 
 104, 106. 
 V. Harsell (1 Stark.* 233), 272. 
 V. Euhn (45 Mich. 531), 21. 
 V. Kuhn (45 Mich. 513), 24. 
 V. Leonard (U Iowa, 489), 
 
 240. 
 V. Penn. Life Ins. Co. (2 
 
 Whart. 53), 270. 
 V. Eichardson (10 Johns. 406), 
 
 301. 
 V. Sewell (1 Chitty Rep 611), 
 
 12. 
 V. Swan (48 Barb. 109), 283. 
 V. The Mersey Docks (14 C 
 
 B. (N. s.) 412), 89. 
 V. Young (9 Bush, 240), 290, 
 308. 
 Canada, The (7 Fed. Rep. 248), 
 
 231. 
 Canada v. Wick (100 N. Y. 127), 
 
 333. 
 Canadian Bank v. McCrea (40 111. 
 
 281), 320. 
 Cannau v. Meaburn (1 Blng. 243), 
 
 275. 
 Cannon v. Folsom (2 Iowa, 101), 
 335. 
 V. Kelly (Hayes & J. 655), 287. 
 Canterberry v. Miller (75 111. 355). 
 
 79. 
 Capel V. Thornton (3 C. & P. 352), 
 
 283. 
 Capen v. De Steiger Glass Co. (105 
 
 111. 185), 333, 335. 
 Carborne v. Scarfe (1 Alk. 603), 
 
 221. 
 Cardell v. Bridge (9 Allen, 355), 
 
 209. 
 
 Cardinal v. Bennett (52 Cal. 416), 
 
 325. 
 
 V. Edwards (5 Nev. 36), 206, 
 
 325. 
 
 37 577 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Cardoze v. Swift (113 Mass. 250), 
 
 308. 
 Cardwell v. McClellan (3 Sneed, 
 
 150), 157. 
 Carleton v. Woods (28 N. H. 290), 
 
 61. 
 Carlisle v. Kinney (66 Barb. 363), 
 119. 
 V. Wallace (12 Ind. 252), 6. 
 Carlton v. BaUey (27 N. H. 284), 
 292. 
 V. Sumner (4 Pick. 516), 85. 
 V. Sumner (16 Gray, 229), 86. 
 V. Woods (28 N. H. 290), 
 
 262. 
 V. Woods (28 N. H. 292), 292. 
 Carmack v. Masterson (3 Stew. & 
 
 P. 411), 78, 286. 
 Carman v. Smick (15 N. J. L. 252), 
 
 56. 
 Carnahan v. Bailey (28 Fed.'Rep. 
 519), 170. 
 V. Hughes (9 N.E. Bep. (Ind.) 
 79), 332. 
 Camoclian v. Gould (1 Bailey, 179), 
 
 187. 
 Carondelet Iron Works v. Moore 
 
 (78 111. 65), 117, 193. 
 Carpenter v. Blote (1 E. D. Smith, 
 491), 234. 
 V. Carpenter (25 N. J. Eq. 194), 
 
 174. 
 V. Clark (2 Nev. 243), 84o. 
 V. Danforth (52 Barb. 681), 
 
 171. 
 V. Galloway (73 Ind. 418), 61. 
 o. Graham (42 Mich. 191), 84a, 
 
 88. 
 V. Hall (8 Gray, 157), 329. 
 V. Longan (16 Wall. 271), 245. 
 V. McClure (30 Vt. 9), 174. 
 V. Murin (42 Barb. 300), 174. 
 V. Eoe (10 N. Y. 227), 174. 
 V. Scott (13 E. I. 447), 325. 
 V. Scott (13 R. I. 474), 9. 
 578 
 
 Carpenter v. Scott (13R. 1. 477), 86, 
 
 200, 203. 
 V. Snelling (97 Mass. 452), 227, 
 
 238. 
 V. Stevens (12 Wend. 689), 50. 
 Carr v. AUatt (27 L. J. Ex. 385), 61. 
 o. Clough (26 N. H. 280), 20, 
 
 229. 
 V. Duval (14 Pet. 77), 34. 
 V. Miner (92 111. 604), 140. 
 Carradine v. Wilson (61 Miss. 573), 
 
 292. 
 Carrier v. Brannan (3 Cal. 328), 
 
 301. 
 Carrington u. Smith (8 Pick. 419), 
 
 232. 
 V. Roots (2 M. & W. 248), 
 
 69, 231. 
 Carroll v. Hayward (124 Mass. 
 
 121)," 174. 
 V. Wiggins (30 Ark. 402), 206, 
 
 325. 
 Carson v. Baillie (19 Pa. St. 375), 
 
 187, 188, 189, 197, 215. 
 V. Cnmmings (69 Mo. 325), 268. 
 V. Law (Rich. Eq. 296), 169. 
 Carter v. Burris (10 Sm. &' M. 
 
 227), 228. 
 V. Fately (67 Ind. 427), 243. 
 V. Graves (6 How. (Miss.) 9), 
 
 84a. 
 V. Grimshaw (49 N. H. 100), 
 
 174. 
 V. Kingman (101 Mass. 517), 
 
 324. 
 V. Kingman (103 Mass. 513), 
 
 324. 
 V. Manufacturers' Bank (71 Me. 
 
 448), 277. 
 V. Stanfleld (8 Ga. 49), 84a. 
 V. Toussaint (5 B. & Aid. 855), 
 
 69. 
 V. Walker (2 Rich-. 40), 163. 
 V. Wallace (32 Hun, 384), 213. 
 V. Wallace (35 Hun, 189), 316. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Carter v. Willard (19 Pick. 1), 84a, 
 104, 106. 
 V. Willard (19 Pick. .374), 69. 
 Cartmel v. Newton (79 Ind. 1), 36. 
 CartwightB. Phoenix (7 Cal. 281), 
 
 104. 
 Cartwright v. Green (47 Barb. 9), 
 273. 
 V. McCoofe (33 Tex. 612), 335. 
 V. Wilmerding (24 N. Y. 521), 
 130, 317. 
 Caruthers v. Humphrey (12 Mich. 
 
 270), 246. 
 Caruthers v. MoGarvey (41 Cal. 15), 
 
 88. 
 Carver v. Lane (4 E. D. Smith, 168) , 
 
 70. 
 Cary «. Bancroft (14 Pick. 31S), 140. 
 V. Gruman (4 Hill, 626), 180, 
 
 215. 
 V. Hewitt (26 Mich. 228), 221, 
 
 241, 248. 
 V. Hotailing (1 Hill, 311), 168, 
 170. 
 Casard v. Hinman (1 Bosw. 207), 
 
 51. 
 Case V. Allen (21 Kan. 217), 244. 
 V. Carroll (35 N. Y. 385), 270. 
 B. Hall (24 Wend. 402), 185. 
 V. Hall (24 Wend. 102), 186. 
 V. Leass (44 Mich. 195), 144. 
 V. Phelps (39 N. Y. 164), 174. 
 V. Winship (4 Blackf. 425), 
 
 84a, 241. 
 
 V. Winship (4 Blackf. 425), 241. 
 
 Casey v. Cavaroe (96 U. S. 467), 223. 
 
 Cash V. Giles (3 C. & P. 407), 163. 
 
 V. Hinkle (36 Iowa, 623), 102. 
 
 V. Toozer (1 Watts & S. 519), 
 
 265. 
 
 Cashman v. Holyoke (34 Me. 289), 
 
 87. 
 Cashman v. Martin (50 How. Pr. 
 
 338), 140. 
 Cason V. Cheely (6 Ga. 564), 56. 
 
 Cass e. Higenbotam (27 Hun, 406), 
 
 140. 
 Cassard v. Hinman (t Bosw. 8), 
 
 272. 
 Cassell V. Herron (6 Clark, 250) ^ 
 
 167. 
 Cassidy v. Begoden (6 Jones & Sp. 
 
 180), 196. 
 V. McKenzie (4 Watts & S. 
 
 282), 142. 
 Castle V. Playford (L. R. 5 Ex. 165; 
 
 7 Ex. 98), 87. 
 u. Sworder (6 H. & N. 832 ; 30 
 
 L. J. Ex. 310), 66. 
 V. Sworden (29 L. J. Ex. 235; 
 
 30L. J. Ex.310), 69. 
 Castlemann v. Griffln (13 Wis. 535), 
 
 162. 
 Caswell V. Keith (12 Gray, 351), 
 
 228. 
 Catchlngs v. Hacke (16 Mo. App. 
 
 51), 189. 
 Cathcart u. Keinaghan (5 Strob. 
 
 129), 78, 286. 
 Catlett V. Gilbert (23 Ind. 614), 262. 
 'v. Trustees (62 Ind. 365), 290, 
 
 293, 308. 
 Catlin V. Haddox (49 Conn. 492), 19. 
 V. Tobias (26 N. Y. 217), 208, 
 
 209. 
 ■u. Tobias (26 N. Y. 217; 84 
 
 Am. Dec. 183), 101, 103. 
 0. Warren (16 111. App. 418), 
 
 170. 
 Catling V. King (5 Ch. D. 660, C. 
 
 A.), 76. 
 Caton V. Caton (L. K. 2 H. L. C. 
 
 127), 77. 
 Cator V. Collins (2 Mo. App. 225) , 
 
 84a. 
 Caulkins v. Fry (35 Conn. 170), 25. 
 Cave V. Hastings (7 Q. B. D. 126), 
 
 75. 
 Cavender v. Waddingham (5 Mo. 
 
 App. 457), 26. 
 579 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Cayce v, Stovall (50 Miss. 396), 
 
 231. 
 Caywood v. Timmons (31 Ean. 
 
 394), 83. 
 Ceas V, Bromley (18 Han, 187), 
 
 225, 238. 
 Cecil V. Springe.* (32 Mo. 462), 167. 
 Ciustein v. Marshall (58 Ala. 163, 
 
 160), 160. 
 Central Branch Bk. v. Fritz (20 
 
 Kan. 430), 59. 
 Central R. R. Co. o. Burr (51 Ga. 
 
 553), 88. 
 Central R. Co.ii. Kish (L R. 2 H. L. 
 
 99), 163. 
 Chadsey v. Green (24 Conn. 562), 
 195. 
 i). Lewis (1 Gilm. 153) 11. 
 Chadwicku. Butler (28 Mich. 349), 
 335. 
 V. Lamb (29 Barb. 518), 241. 
 Chaffs v. Farmer (34 La. An. 1017), 
 
 277. 
 Chaives v. Brady (19 Fla. 133), 228. 
 Chamberlain v. Dickey (31 Wis. 
 68), 325. 
 V. Farr (23 Vt. 265), 84. 
 V. Martin (43 Barb, 607), 248, 
 
 250. 
 V. Rankin (49 Vt. 133), 158. 
 V. Smith C44 Pa. St. 431), 5, 
 203, 316. 
 Chamberlaine v. Hewson (5 Mod. 
 
 71), 29. 
 Chambers v. Davidson (L. R. 1 P. 
 C. 296; 4 Moo. P. C. C. 
 (N. s.) 158), 120. 
 V. Jones (72 111. 276), 267. 
 V. Lewis (28 N. Y. 464), 311. 
 V. Miller (10 C. B. (n. s.) 125; 
 
 32 L.J. C. P. 30), 86. 
 V. Short (79 Mo. 204), 142, 269. 
 V. Thomas (3 A. K. Marsh. 
 
 536), 258. 
 V. Tnlane (9 N. J. Eq. 146), 284. 
 580 
 
 Chambers v. Union Nat. Bank (78 
 
 Pa. St. 206), 186. 
 Chambles v. McEenzle (31 Ark. 
 
 155), 87, 205. 
 Champion v. Plummer (3 B. & P. 
 252), 76. 
 V. Short (1 Camp. 63), 33. 
 Cbamplin v. Rowley (13 Wend. 
 
 258), 34. 
 Champlin v. Rowley (13 Wend. 
 
 260), 101. 
 Champney v. Blanchard (39 N. T. 
 116), 11. 
 V. Smith (15 Gray, 212), 311. 
 Chancellor v. Wiggins (4. B. Men. 
 201), 186. 
 V. Wiggins (4 B. Mon. 220), 
 186. 
 Chancely v. Bailey (37 Ga. 532), 
 
 297. 
 Chandler v. Cook (2 McArthur, 
 176), 260. 
 V. Graft (27 Minn. 208), 101. 
 V. Fuller (10 Tex. 2), 126, 127, 
 
 134, 135. 
 V. Fulton (10 Tex. 13), 130. 
 V. Glover (32 Pa. St. 509), 19. 
 V. Hoyles (58 III. 46), 273. 
 V. Johnson (39 Ga. 86), 292, 
 296. 
 Chanter v. Hopkins (4 M. & W. 
 399). 35, 197, 214. 
 V. Hopkins (4 M. & W. 404), 
 
 180. 
 B.Hopkins (4 M. &W. 414), 
 190. 
 Chapel V. Clapp (29 Iowa, 194), 
 
 174. 
 Chapin v. Cram (40 Me. 561), 151, 
 231, 233, 239. 
 V. Dobson (78 N. Y. 80), 196. 
 V. Pease (10 Conn. 69), 174. 
 V. Potter (1 Hilt. 366), 93, 205. 
 V. School District (35 N. H. 
 460), 100. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Chapin v. Shaler (id N. Y. 407), 20, 
 
 229. 
 Chaplin v. Clarke (4 Ex. 403), 33. 
 V. Rogers (1 East, 192), 106. 
 V. Rogers (1 East, 195), 67, 
 
 69, 115. 
 Chapman v. Black (2 B. & Aid. 
 
 688), 292. 
 V. Chapman (13 Ind. 396), 18. 
 V. Cole (12 Gray, 141), 36, 310, 
 
 313, 324. 
 V. Commissioners (25 Gratt. 
 
 221), 152. 
 V. Cowles (41 Ala. 103), 143. 
 V. Durant (10 Mass. 51), 144. 
 V. Gwyther (L. R. 1 Q. B. 464), 
 
 194. 
 V. Gwyther (L. R. 1 Q. B. 463), 
 
 193. 
 V. Harwood (8 Blackl. 82), 
 
 263. 
 V. Hughes (61 Miss. 339), 17. 
 V. Hunt (13 N. J. Eq. 370), 243, 
 
 248. 
 V. Hunt (18 N. J. Eq. 414), 246. 
 V. Ingram (30 Wis. 290), 334. 
 V. Morton (11 M. &. W. 534), 
 
 116. 
 V. Searle (3 Pick. 38), 84, 104, 
 
 105, 120. 
 17. Shepard (39 Conn. 413), 83, 
 
 88. 
 V. SplUer (14 Q. B. 621), 185, 
 
 277. 
 o. State (5 Greg. 432), 221, 246, 
 
 248. 
 V. Weiner (4 Ohio St. 481), 51, 
 
 231, 232. 
 Chapney v. Smith (15 Gray, 512), 
 
 314. 
 Chappel V. Brockway (21 Wend. 
 
 157), 303. 
 ». Marvin (2 Aikens, 79), 105. 
 Charity Hospital v. Girardey (36 
 
 La. An. 606), 281. 
 
 Charleston v. Patterson (2 Bailey, 
 
 165), 281. 
 Charter v. Stevens (3 Denio, 33), 
 
 221,246. 
 Chase v. Denny (130 Mass. 566), 51, 
 
 232, 238. 
 V. Ingalls (122 Mass. 381), 85, 
 
 230, 325. 
 V. Pike (125 Mass. 117), 85. 
 V. Walters (28 Iowa, 460), 13. 
 », Washburn (1 Ohio St. 244), 
 
 6,7. 
 0. Westmore (6 M. & S. 180), 
 
 120. 
 Cheney-Bigelow Wire Works ». 
 
 Sorrell (142 Mass. 442), 
 
 332. 
 Cheney ■». Duke (10 G. & J. 11), 
 
 294. 
 Chengivo v. Jones (3 Wash. C. C. 
 
 359), 163. 
 Cheny v. Cook (7 Wis. 413), 41. 
 
 V. Smith (3 Humph. 19), 41. 
 Chenyworth v. Daily (7 Ind. 284), 
 
 239. 
 Cherry v. Long (Phill. L. 466), 
 
 286. 
 Cheshire v. Barret (4 MoCord, 241'^, 
 
 19. 
 Chesley v. Joselyn (7 Gray, 489), 
 
 51, 231. 
 Chester v. Comstock (6 Rob. 1), 
 
 166. 
 V. Dickerson (52 Barb. 350), 
 
 173. 
 Chestnut v. Harbaugh (78 Pa. S^ 
 
 473), 293, 308. 
 Chesterfield v. Janssen (1 Atk. 
 
 352), 175. 
 Chew V. Bank of Baltimore (14 
 
 Md. 299),26. 
 Chew's Admr. v. Beal (13 Md. 348), 
 
 30. 
 Chew. V. Hyman (7 Fed. Rep. 7), 
 
 256. 
 
 581 
 
TABLE OP CASES CITED. 
 
 References are to Sections. 
 
 Chicago Artesian Well Co. ii. Covey 
 
 (60I11.T3), 274. 
 Chicago Desk Co. v. foster (48 111. 
 
 507), 327, 329. 
 Chicago V. Greer (7 Wall. 726), 
 
 333. 
 Chicago, &c., E. E. Co. v. Dane (43 
 
 N. T. 240), 38, 40. 
 V. Painter (15 Neb. 394), 130. 
 Chicago, Taylor, &c., Co. v. Lowell 
 
 (60 Cal. 454), 273. 
 Chichester v. Cobb (14 L. T. (n. s.) 
 
 433), 77. 
 Chidell V. Galls worthy (6 C. B. (n. 
 
 s.) 471), 51. 
 Child V. Allen (33 Vt. 476), 325. 
 V. Hugg (41 Cal. 519), 274. 
 Childs V. Northern Ey. Co. (25 Up. 
 
 Can. Q. B. 165), 137. 
 Chiles V. Nelson (7 Dana, 281), 
 
 39. 
 Chinnery v. Viall (5 H. & N. 288; 
 
 29 L. J. Ex. 180), 43. 
 Chipnon v. Feikert (68 111. 284), 
 
 238. 
 Chisholm v. Chittenden (45 Ga. 
 
 213), 231. 
 V. Proudfoot (15 Up. Can. 
 
 Q. B. 203), 193. 
 Chisin V. Wood (Hardin, 531), 185. 
 
 V. Woods (Hardin, 641), 186. 
 Chisom 17. Hawkins (11 Ind. 316), 
 
 325. 
 Chitty V. Nash (2 Dowl. 511), 152. 
 Churchill v. Hulbert (110 Mass. 
 
 42), 216. 
 Chouteau v. Merry (3 Mo. 254), 29. 
 Chrislie o. Simpson (1 Rich. 407), 
 
 286. 
 Christmas v. Mitchell (5 Ire. Eq. 
 
 535), 21. 
 Christian v. Bunker (38 Tex. 234), 
 
 206. 
 Christy v. Cummires (2 McBean, 
 
 386), 163. 
 582 
 
 Chrysler v. Canaday (90 N. Y. 272), 
 
 166. 
 Chumar v. Wood (1 Halst. 155), 
 
 84a. 
 Church V. Fetevoir (2 Pen. & Watts, 
 301), 150. 
 V. Muir (33 N. J. L. 320), 174. 
 V. Sterling (16 Conn. 388), 270. 
 Churchill v. Merchants' Bank (19 
 Pick. 632) , 99. 
 V. Palmer (115 Mass. 310), 
 183. 
 Chynoweth v. Penney (10 Wis. 
 
 397), 61, 232. 
 
 City Bank of Eacine v. Babcock (1 
 
 Holmes C. C. 180), 274. 
 
 City Bank v. Barrows (L. E. 5 App. 
 
 Cas. 664), 317. 
 
 V. Smith (3 Gill & J. 266) 219. 
 
 City Nat. Bank v. Tufts (63 Tex. 
 
 113), 325. 
 Claflin V. Boston, etc., E. E. Co. (7 
 Allen, 341), 89. 
 V. Carpenter (4 Met. 580), 59, 
 
 231. 
 V. Cottman (77 Ind. 58), 327. 
 V. Eosenberg (42 Mo. 439), 
 
 84a. 
 V. Eosenberg (42 Mo. 449), 106. 
 Clagett V. Salmon (5 G. & J. 314), 
 
 240. 
 Clapp V. Glidden (39 Me. 448), 247. 
 V. Hale (112 Mass. 368), 153. 
 V. Beck (55 Iowa, 270), 125, 
 
 130. 
 V. Eogers (38 N. H. 435), 84a. 
 V. Solmer (56 Iowa, 273), 125. 
 
 128. 
 V. Tirrell (20 Pick. 247), 174. 
 V. Thayer (112 Mass. 296), 102. 
 Clark V. Anderson (10 Bush. 99), 
 270. 
 V. Bamer (2 Lans. 67), 180. 
 V. Blackington (110 Mass. 369), 
 277. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Clark V. Caldwell (6 Watts, 139), 
 
 26. 
 V. Cushman (5 Mass. 605), 281. 
 V. Dales (20 Barb. 42), 336. 
 V. Dickson (El. B. & E. 148; 
 
 27 L. J. Q. B. 223), 163. 
 V. Draper (19 N. H. 419), 119, 
 
 120. 
 V. Edgar (84 Mo. 106), 164. 
 V. Pairchild (22 Wend. 576), 
 
 12. 
 «. Earbell (67 N. H. 328), 226. 
 V. Gardiner (12 Ir. C. E. 472), 
 
 76. 
 ■w. Gibson (12 N. H. 386), 301. 
 -!). Griffltlia (24 N. Y. 695), 88. 
 V. Henry (2 Cow. 324), 227. 
 V. Houghton (12 Gray, 38), 
 
 234, 236. 
 V. Hyman (66 Iowa, 26), 134. 
 ®. Iselin (21 Wall. 360), 240. 
 V. Jack (7 Watts & S. 376), 6. 
 V. Leslie (5 Esp. 28), 17. 
 V. Lynch (4 Daly, 83), 130. 
 V. Lyon (46 Ga. 203), 227. 
 •». Marriott (9 Gill, 331), 64. 
 V. Mauran (3 Paige, 373), 125. 
 v. Morrell (21 Up. Can. Q. B. 
 
 696), 174. 
 V. Nichols (107 Mass. 547). 68. 
 V. Noble (2 Up. Can. Q. B. 
 
 861), 67. 
 V. Peter (12 Met. 178), 175. 
 V. Pinney (7 Cow. 681), 160. 
 •». Pinney (7 Cow. 687), 335. 
 V. Pomeroy (4 Allen, 534), 296. 
 ■0. Bicker (14 N. H. 44), 292, 
 
 296. 
 V. Rolls (68 Iowa, 201), 160. 
 V. Savage (20 Conn. 258), 144. 
 V. Sawyer (48 Cal. 138), 258. 
 V. Spence (4 A. & E. 448), 82. 
 ■e. Smith (88 111. 298), 142, 269., 
 V. Tarbell (58 N. H. 88), 239. 
 b. Tarbell (57 N. H. 328), 240. 
 
 Clark V. Tennant (6 Neb. 549), 
 162. 
 V. Tucker (2 Sandf. 157), 63, 
 
 68, 69, 74, 239. 
 V. VanNorthwlck (1 Pick. 343), 
 
 273. 
 ». Wells (45 Vt.4), 325. 
 V. Wells (45 Vt. 4 (12 Am. Rep. 
 
 137), 86. 
 V. Westroppe (18 C. B. 765; 25 
 
 L. J. C P. 287), 46. 
 V. White (21 Pet. 178), 1 75. 
 d. Whittaker (18 Conn. 543), 
 
 241. 
 ■0. Young (1 Cranch, 181), 144. 
 Clarke v. Eoss (7Biss. 641), 51. 
 o. Hutchinson (14 Bast, 475), 
 95. 
 Clarke «. Morse (10 N. H. 236), 
 84a. 
 ■<i. Scott (46 Cal. 86), 152. 
 ■0. Spence (4 A. & E, 448), 87, 
 210. 
 Clarkson v. Noble (2 U. C. Q. B. 
 361), 286. 
 V. Stevens (106 U. S. 605), 87. 
 Clason V. Bartley (14 Johns. 484), 
 
 77. 
 Clay B.Yates (26 L. J. Ex. 237) 1 H. 
 
 &N. 73),58. 
 Clayton v. Andrews (4 Burr, 2101), 
 68. 
 V. Blake (4Ired. 497), 209. 
 V. Hester (80 N. C. 279), 206. 
 V. Hester (80 N. C. 276), 204, 
 
 325. 
 V. Johnson (36 Ark. 406), 176. 
 V. Merrett (52 Miss. 353), 142. 
 Cleaver v. Ogle (1 Houst. 453), 
 
 205. 
 Cleaves v. Foss (4 Greenl. 1), 286. 
 Clem V. Newcastle, etc., (9 Ind. 
 
 488), 158. 
 Clement, etc., Mfg. Co. v. Meserde 
 (107 Mass. 862), 333. 
 583 
 
TABLE OP CASES CITED. 
 
 References are to Sections. 
 
 Clementson v. Grand Trunk Ry. 
 
 Co. (42 Up. Can. 2 B. 
 
 273), 122, 134. 
 Clementsen v. Grand Trunk By. 
 
 Co. (42 Up. Can. 2 B. 
 
 263), 136. 
 Clerk V. Withera (1 Salk. 323), 258. 
 Cleveland E. R. Co. v. Kelley (S 
 
 Ohio St. 180), 150. 
 Cleveland Rolling Mill v. Rhoder 
 
 '121 N. L. 255), 208, 
 
 209. 
 Cleveland v. Sterritt (70 Pa. St. 
 
 204), 99. 
 ». Williams (29 Tex. 204), 88. 
 ClifEord, In re (2 Sawy. 428), 69. 
 Clippinger v. Hepbaugh (5 Watts & 
 
 S. 315), 299. 
 Cline V. Libby (46 Wis. 123), 241. 
 Clinitz V. Surrey (5 Esp. 267), 66. 
 Clodfelteri). Hulett (72 Ind. 137), 
 
 168, 332. 
 Clopper «. Union Bank (7 Harr. & 
 
 J. 120), 144. 
 Clopton V. Elkins (46 Miss. 95), 
 
 292. 
 Clough V. Hoffman (5 Wend. 500), 
 
 211. 
 V. London, &c., Co. (L. R. 7 Ex. 
 
 26), 327. 
 Clow V Woods (5 S. & R. 276), 84a, 
 
 106. 
 Clubb V. Hutson (18 C. B. (n. s.) 
 
 414), 296. 
 Clunez V. Pezzy (1 Camp. 8), 163. 
 Clute V. Barron (2 Mich. 192), 270. 
 V. Steele (6 Nev. 335), iia. 
 V. Steele (6 Nev. 339), 238. 
 Coat V. Coat (63 111. 73), 277. 
 Coate V. Terry (26 Up. Can. C. P. 
 
 40), 189. 
 Coates V. Sangston (5 Md. 121), 
 
 100. 
 V. Stevens (2 Moody & R. 151), 
 
 194. 
 
 584 
 
 Coats V. Stewart (19 Johns. 
 
 283. 
 Coate B. Terry (24 Up. Can. C. P. 
 
 571), 76. 
 Cobb V. Chase (54 Iowa, 253), 237. 
 V. Prell (15 Fed. Rep. 774), 
 
 302. 
 V. Tults (2 Tex. App. (civ. 
 
 cas), § 152), 85. 
 V. Wallace (5 Cold. (Tenn.), 
 539), 196. 
 Cobbold V. Caston (1 Bing. 899), 8 
 
 Mo. 466), 61. 
 Cobel V. Nonemaker "(78 Pa. St. 
 
 601), 238, 240. 
 Cobumw. Odell (38 N. H. 567), 
 292. 
 V. Odell (20 N. H. 540), 292. 
 V. Odell (30 N. H. 557), 61. 
 V. Pickering (3 N. H. 41*5), 84a. 
 Cochran v. Chitwood (69 111. 63), 
 268. 
 V. Mam (2 M. & S. 301), 272. 
 V. Retberg (3 Esp. 121), 99. 
 V. Ripy (13 Bush. 495), 122. 
 V. Roundtree (3 Strobh. 217), 
 
 825. 
 ». Stewart (21 Minn. 435), 168, 
 
 326, 329. 
 V. Toker (14 Minn. 293), 100. 
 Cochrane v. Willis (1 Ch. 58; 35 L. 
 
 J. Ch. 36),50. 
 Cockburn v. Ashland Lumber Co. 
 
 (54 Wis. 619), 336. 
 Cockburn v. Sylvester (27 Up. Can. 
 
 C. P. 34), 317. 
 Cocker v. Franklin Hemp Co. (3 
 
 Sumn. 530) , 94, 100. 
 Cocke V. Campbell (13 Ala. 286), 
 
 269. 
 Cockerell v. Ancompte (2 C. B. (x. 
 s.) 440; 26 L. J. C. P. 
 194), 102. 
 Cock V. Izard (7 Wall. 559), 168, 
 169. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Codman v. Freeman (3 Cusb. 306), 
 
 51, 231. 
 Coddington D. Goddard (16 Gray, 
 
 4t3), 76. 
 V. Goddard (16 Gray, 436), 79, 
 
 271,272. 
 ■0. Paleologo (L. E. 2 Ex. 193) , 
 
 99. 
 Ooe V. Cassidy (72 N. Y. 133), 228. 
 Coffey V. Quebeck Bank (20 Up. 
 
 Can. C. P. 110), 88. 
 Coffman v. flampton (2 W. & S. 
 
 377), 61. 
 V. Hampton (2 Watts & S. 
 
 390), 334. 
 Cofleld V. Clark (2 Oal. 102), 336, 
 
 336. 
 Cogan v.Frisby (36 Miss. 178), 277. 
 CogelB. Koiseley (89 111. 598), 190. 
 
 V. Eaph (24 Minn. 194), 17. 
 Coggeshall v. Potter (4 Nat Bank 
 
 Eep. 73), 240. 
 CoggilIo.Hartford,&c., R. E. Co. (3 
 
 Gray, 547), 230. 
 Cogbill V. Bailroad (3 Gray, 545), 
 
 206. 
 Cogley V. Cushman (16 Minn. 397), 
 
 229. 
 Cohoes V. Crorpsy (55 N. Y. 685), 
 
 296. 
 Colt V. Schwartz (29 Kan. 344), 332. 
 Colby «. Everett (10 N. H. 425), 
 
 234. 
 Coloocke ». Goode (3 McCord, 513), 
 
 185. 
 Colcord V. McDonald (128 Mass. 
 
 470), 210, 325. 
 Cole i>. Berry (42 N. J. L. 308), 283, 
 
 206, 325. 
 Coles V. Bristowe (17 W. E. 105), 
 
 273. 
 Cole ». Homer (55 Mich. 438), 115. 
 V. Kew (20 Vt. 21), 104, 113. 
 V. Mann (61 N. Y. 1), 206. 
 V. Mann (62 N. Y. 1), 326. 
 
 Cole V. Milmlne (88 111. 349), 302. 
 V. Muddle ^10 Hare, 186), 277. 
 V. Munn (3 Thomp. & C. 595), 
 
 210. 
 V. Worthwestern Bank (9 C. P. 
 
 470; IOC. P. 354), 317. 
 ». Saxby (3 Esp. 159), 19. 
 V. Sackett (1 Hill, 616), 144, 
 
 147. 
 V. Weeds (68 Wis.), 181. 
 V. Whithers (33 Gratt 204), 
 162. 
 Coleman, In re (36 Up. Can. Q. B. 
 
 559), 317. 
 Coleman v. Eiches (29 Eng. L. & Eq. 
 323), 323. 
 B. Woolley(10 B. Mon. 330), 
 30. 
 Coles V. Clark (3 Cusbing, 399), 240, 
 
 241, 288. 
 Coles V. Trecothick (9 Ves. 234), 
 283. 
 B. Trecothick (9 Ves. 250), 75. 
 CoUais V. McLeod (8 Ired. L. 221), 
 
 258. 
 Collamer's Day(2 Vt. 144), 301. 
 CoUender Co. u. Marshall) 66 Vt. 
 232), 291. 
 V. Marshall (57 Vt. 322), 9, 
 325. 
 Collier v. Faulk (69 Ala. 58), 62. 
 ». Vason (12 Ga. 440), 260. 
 V. Whipple (13 Wend. 229), 
 
 265. 
 V. Waugh (64 Ind. 466), 296. 
 Collins D. Carlile (13 111. 254), 234. 
 V. Case (23 Wis. 230), 270. 
 V. Delaport (116 Mass. 162), 
 333. 
 Collins, In re (8 Ben. 59), 240. 
 
 (12 Blatchf. 548), 240. 
 Collins V. Larenburg (19 Ala. 685), 
 30. 
 V. Montgomery (2 Nott. & McC. 
 392), 261. 
 
 585 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 CoUins V. Myers (16 Ohio, 547), 84a. 
 V. Newton (7 Baxt. 269), 142. 
 V. Taggart (67 Ga. 355j, 84o. 
 V. Tillion's Admr. (26 Conn. 
 
 368), 196, 228. 
 V. Townsend (58 Cal. 608), 
 168. 
 Collumt). Huntington (51 Ind.229), 
 
 356. 
 Colms V. Bank (4 Baxt. 422), 99. 
 Colt V. Lesnier (9 Cow. 320), 277. 
 Colton V. Wise (7 Bradw. 395), 5. 
 v. Wise (7111. App. 396), 213. 
 Columbia, &c.. Bridge Co. ». Geissfe 
 
 (38N. J. L. 39), 269. 
 Colvin u. Weedman (50 III. 311), 
 
 98. 
 Colwell V. Keystone Iron Co, (36 
 
 Micli. 61), 87. 
 Coman v. Lakey (SON. Y. 346), 
 
 230. 
 Combes o. Chandler (33 Ohio, 178), 
 
 327. 
 Combs V. Bateman (10 Barb. 673), 
 71. 
 V. Scott (12 Allen, 493), 183. 
 Comer v. Cunningham (77 N. Y. 
 
 391), 325. 
 Comfort V. Kiersted (26 Barb. 472), 
 
 82, 87, 206. 
 Comins v. Newton (10 Allen, 518), 
 
 231, 233. 
 Commercial Bank v. Gillette (90 
 . Ind. 268), 88, 205. 
 V. Kortwright (22 Wend.), 348. 
 Commercial v. Norton (1 Hill, 601), 
 
 272. 
 Commins v. Scott (20 Ex. 11), 76. 
 Commissioners v. Holloway (3 
 
 Hawks, 234), 281. 
 Commissioners of Johnson Co. v, 
 Milligan (7 Blackf. 301), 
 298. 
 Commissioner v. Thompson (4 Mc- 
 Cord, 434), 283. 
 586 
 
 Commonwealth v. Clark (14 Gray, 
 367), 12. 
 V. Cooper (130 Mass. 285), 272. 
 V. Devlin (Mass.) 212. 
 V. Dickinson (68 Mon. 506), 
 
 283. 
 V. Farnam (114 Mass. 267), 95. 
 V. Greenfield (121 Mass. 40), 84. 
 V. Hantz (2 Pa. 333), 17. 
 V. Harnden (18 Pick. 482), 683. 
 V, Jackson (132 Mass. 16), 158, 
 
 166. 
 V. Johnson (3 Cush. 464), 296. 
 V. Macon (2 Brev. 105), 283. 
 V. Packard (5 Gray, 101), 11. 
 V. Pease (16 Mass. 91), 266. 
 V. Beading Sav. Bank (137 
 
 Mass. 431), 4. 
 ti. Watmough (6 Wheat. 139), 
 319. 
 Comstock V. Ames (1 Abb. App. 
 411), 270. 
 V. Bayford (12 Smed. & M. 369), 
 
 84a. 
 B. Scales (7 Wis. 159), 62, 231. 
 V. Smith (22 Me. 262), 146. 
 Conable v. Lynch (45 Iowa, 84), 8. 
 Conard v. Atlantic Ins. Co. (1 Pet. 
 
 386), 104, 106. 
 Concord Bank v. Gregg (14 N. H. 
 
 331), 173. 
 Conderman v. Smith (41 Barb. 
 
 404), 52, 231. 
 Conditt V. Blackwell (22 N. J. Bq. 
 
 481), 270. 
 Congar v. Chamberlain (14 Wis. 
 258), 181. 
 V. Galena, etc., R. E. Co. (17 
 
 Wis. 477), 84. 
 V. Railroad (17 Wis. 477), 206. 
 Congreve v. Evetts (10 Ex. 298; 23 
 
 L.J. Ex. 273), 61. 
 Conimingo Petroleum Co. v. Cun- 
 ningham (75 Fa. SI. 
 138), 99. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Conkey v. Bond (34 Barb. 276), 
 272. 
 V. Bond (36 N. Y. 427), 270. 
 Conkling v. King (10 N. Y. 440), 144. 
 
 V. King (10 Barb. 872), 146. 
 Conklin«. Ogborn (7Ind. 663), 19. 
 Conkling v. SheUey (28 N; Y. 36qj), 
 
 233. 
 Conkline v. Smith (7 Ired. 107), 
 
 263. 
 Conklin v. Cantrell (64 N. Y. 219), 
 
 130. 
 Conley v. Sims (71 Ga. 161), 306. 
 Conn V. Coburn (7 N. H. 368), 17. 
 Conn V. Spaulding (47 Mich. 162), 
 
 113. 
 Connally v. Spragins (66 Ala. 258), 
 
 233. 
 Connecticut Trust Co. v. Metendy 
 
 (111 Mass. 449), 144. 
 Comer v. Carpenter (28 Vt. 237), 
 
 223. 
 Conner v. Coffin (22 N. H. 638), 59. 
 ». Henderson (5 Mass. 314), 
 
 163. 
 V. Henderson (15 Mass. 322), 
 
 163. 
 V. MiUer (IKerr (N. B.), 302), 
 
 174. 
 Comer v. Perkins (124 Mass. 431), 
 
 166. 
 Conover v. Walling (15 N. J. Eq. 
 
 173), 165, 285. 
 Conrad v. Atlantic Ins. Co. (1 Pet. 
 
 445), 323. 
 V. Lane (26 Minn. 389), 168. 
 Constant v. Matteson (22 HI. 546), 
 
 221, 241, 248. 
 Constantia, The (6 Rob. Adm. 321) 
 
 135. 
 Couturier v, Hastie (16 Bug. L. & 
 
 Eq. 562) 6 Exch. 40), 
 
 273. 
 Converse v. Harzfeldt (11 BraiJw. 
 
 153), 188. 
 
 Conway v. Alexander (7 Cranch, ' 
 
 218), 204, 224. 
 
 V. Bush (4 Barb. 564), 93. 
 
 Conwell V. Evill, 4 Ind. 677), 228. ' 
 
 Conyngham's Appeal (57 Pa. St. 
 
 474. 
 Conyiss v. Ennis (2 Mason, 236), 
 
 130, 170, 171. 
 Cook v.. Beech (10 Humph. 413), 
 144. 
 V. Berlin Woolen Mills (43 
 
 Wis. 433), 270. 
 V. Brandeis (3 Met. (Ky.) 557), 
 
 334. 
 V. Buck (10 Humph. 412), 148. 
 !). Comrs. of Hamilton Co. (6 
 
 McLean, 612), 336. 
 V. Corthell (11 R. I. 482), 51, 
 
 231, 232. 
 V. Deaton (3 C. & P. 114), 17. 
 V. Hager (3 Col. 683), 239. 
 V. Johnson (47 Conn. 175), 303. 
 V. Logan (7 Iowa, 142), 88. 
 I). Mann (6 Col. 21), 106. 
 V, Mosely (13 Wend. 277), 193, 
 
 194. 
 V. Stearns (11 Mass. 133), 231. 
 V. Steel (42 Tex. 53), 231. 
 V. Tullis (18 Wall. 232), 240. 
 Cooke V. Husbands (11 Md. 
 
 B.Millard (5 Laws. 243; 65 N. 
 
 Y. 352), 68. 
 V. Oxley (3T. R. 653), 40. 
 Cookes V. Culbertson (9 Nev. 109), 
 
 228. 
 Cool V. Peters Box Co. (87 Ind. 
 
 531), 59. 
 
 Cooley V. Perrine (41 N. J. L. 322; 
 
 42 N. J. L. 623, 183, 268. 
 
 Coolldge V. Brigham (1 Met. 650), 
 
 163. 
 
 V. Brigham (1 Met. 561), 185, 
 
 186. 
 V. Melvin (42 N. H. 510), 84o.' 
 V. Brigham (42 N. H. 521), 174. 
 
 587 
 
TABLE OF CASES CITED. 
 
 Referenees are to SectionH. 
 
 Coombs V. Bristol & Exeter B. R. 
 Co. (3H. &N. 510; 27 L. 
 J. Ex. 401), 68. 
 V. Gorden (59 Me. Ill), 314. 
 V. Gordon (59 Me. 112), 311. 
 Coon 0. Atwell (46 N. H. 510), 164. 
 V. Spauldlng (47 Mich. 162), 104. 
 Cooper V. Bill (3 Hurl, &c., 722), 
 127. 
 V. BUI (34 L. J. Ex. 161 ; 3 H. 
 
 & C. 722), 87. 
 «. Bill (3 H. & C. 722; 34 L. J. 
 
 Ex. 161), 122. 
 V. Brock (41 Mich. 488), 204, 
 
 222, 224, 240. 
 V. Carlisle (2 Green (N. J.) 
 
 525), 213. • 
 V. Cleghorn (50 "Wis. 113), 216. 
 V. Douglass (44 Barb. 409) 231. 
 V. Blston (7 T. R. 14), 56. 
 Cooper, Ex parte (L. R. 11 Ch. D. 
 
 68), 130. 
 Cooper V. Jackson (4 "Wis. 537), 
 237. 
 V, Lovering(106 Mass. 76), 158, 
 
 160. 
 V. Lovering (106 Mass. 79), 166. 
 ».Merritt (30 Ark. 586), 158. 
 V. Shepard (3 C. & B. 266), 43. 
 V. Shuttleworth (25 L. J. Ex. 
 
 114), 45, 46. 
 V. Smith (15 East, 103), 75, 76. 
 V. "Wellonrat (1 C. B. 670), 317. 
 v. "Whitney (2 Hill, 95), 223. 
 Copsland v. Mercantile Ins. Co. (6 
 Pick 198), 270. 
 V. Yoaknm (38 Mo. 349), 227. 
 Copenrath ». Kienburg (83 Ind. 18), 
 
 22. 
 Copland V. Bosquet (4 Wash. C. C. 
 
 588), 325. 
 Coppocki?. Bower (4M. & W. 361), 
 
 296. 
 Corbett v. Underwood (83 lU. 324), 
 302. 
 588 
 
 Corbin v. Tracy (34 Conn. 325), 
 
 337. 
 Corbit V. Bank of Smyrna (2 Harr. 
 
 235), 149. 
 Corbitt V. Underwood (83 111. 
 
 324), 302. 
 Corcoran v. Webster (50 "Wis. 126), 
 
 230. * 
 
 Corey v. Burton (32 Mich. 30), 229. 
 Cork Distilleries Co. v. Great 
 
 Southern B. R. Co. (L. 
 
 R. 7 H. L. 269), 86, 89. 
 Corley v. Succession (28 La. An. 
 
 728), 260. 
 Corn Exchange Ins. Co. v. Bab- 
 cock (42 N. T. 613), 30. 
 Coming ». 4b bott (54 N. H. 469), 
 
 290, 306. 
 V. Colt (5 Wend. 264), 89. 
 ■u. ©olt (5 Wend. 253), 34. 
 Cornell v. Green (10 Serg. &R. 14), 
 
 139. 
 V. Hickens (11 Wis. 353), 245. 
 V. Hall (22 Mich. 377), 224. 
 Cornelius v. MoUoy (1 Pa. St. 293), 
 
 167. 
 Cornwall o. Height (8 Barb. 327), 
 
 207. 
 V. Height (8 Barb. 328), 119. 
 Corrall v. Welch (26 Tex. 147), 2U9. 
 Corriell V. Ham (4 G. Greene, Iowa, 
 
 485), 265. 
 Corrigan v. Sheffield (10 Hnn, 227), 
 
 114. 
 Corringham v. Sheffield (10 Hun, 
 
 227), 113. 
 Cort V. Ambergate By. Co. (172 B. 
 
 127), 113, 333. 
 Cortleyon v. Lansing (2 Caines Cas. 
 
 202), 4. 
 Corwin v. Benham (2 Ohio St. 37), 
 
 186. 
 Corwith V. Colter (82 HI. 586), 84, 
 
 94. 
 Coslake v. Till (1 Russ. 376), 98. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Costar V. Davies (8 Ark. 213), 144. 
 Coster V. Bank of 6a. (24 Ala. 37, 
 
 60), 225. 
 Costigan v. Hawkins (22 Wis. 74), 
 
 186. 
 Gotten V. McKenzie (57 Miss. 418), 
 
 292. 
 o.Wmoughby (83 N. C. 75), 
 
 231. 
 Cotterillt). Stephens (10 Wis. 442), 
 
 71. 
 Cottoms. Halliday (69 111. 176), 
 
 270. 
 Cotton V. Hiller (62 Miss. 7), 271, 
 
 273. 
 V. Marsh (3 Wis. 221), 240, 
 
 241. 
 V. Willoughby (83 N. C. 75), 52. 
 Cottrell V. Long (20 Ohio St. 464, 
 
 204), 224, 228. 
 Coachman v. Wright (8 Neb. 1), 
 
 225. 
 Coughlin V. N. Y., etc., E. Co. (71 
 
 N. Y. 443), 304. 
 Council Bluffs Iron Co. v. Cuppey 
 
 (41 Iowa, 104), 84, 94. 
 County of Simcoe Ag. Co. v. Wade 
 
 (12 Up. Can. Q. B. 614), 
 
 190. 
 Coursin's Appeal (79 Pa. St. 220), 
 
 87. 
 Courtney v. Fuller (55 Me. 156), 
 
 196. 
 Courtis ». Cane (32 Vt. 232,) 288, 
 
 310. 
 Courtwright v. Leonard (11 Iowa 
 
 32), 88, 205. ' 
 
 Couse V. Tregent (11 Mich. 75), 
 
 325. 
 Cousinery v. Pearsall (8 J. & S. 
 
 113), 188. 
 Coussin's Appeal (79 Pa. St. 220), 
 
 270. 
 Cousins V. Mantes (37 Annt. 515), 
 
 301. 
 
 Couston V. Chapman (L. R. 2 H. L. 
 S. App. 250), 103, 114, 
 115. 
 V. Chapman (L. E, 22 H. L. 
 
 Sc. 250), 61. 
 V. Chapman (L. E. 2 H. L. C. 
 250), 197. 
 Covanhovan c. Hart (21 Pa. St. 
 
 495), 176. 
 Covell V. Hitchcock (23 Wend. 
 
 611), 130. 
 Covell V. Hyman (111 U. S. 176), 
 
 266. 
 Coventry v. McEviry (13 Ir. Com. 
 
 L. Eep. 160), 197. 
 Covil V. Hill (4 Denio, 323), 312, 
 
 316. 
 Covington v. Threadglll (88 N. C. 
 
 186), 292. 
 Cowan V. Melbourne (L. E. 2 Ex. 
 
 230), 294. 
 Cowell V. Simpson (16 Yes. Jr. 
 
 275), 120. 
 Cowles V. Eicketts (1 Iowa, 682), 
 13. 
 V. Watson (14 Hun, 41), 166. 
 Cowley V. Smith (46 N. J. L. 380), 
 
 160. 
 Cowperthwaite v. Sheffield (3 N. Y. 
 
 243), 152. 
 Cox V. Bailey (6 M. & G. 193), 61. 
 V. Burns (1 Iowa, 64), 125, 130. 
 V. Heisley (19 Pa. St. 243), 
 
 192. 
 V. Jones (24 Up. Can. Q. B. 
 
 81), 115. 
 V. Peterson (30 Ala. 608), 323. 
 Coxe V. England (65 Pa. St. 212), 
 336. 
 V. Halstead (1 Green Ch. (N. 
 
 J. 216), 265. 
 V. Halsted (2 N. J. Eq. 311), 
 
 260. 
 V. State Bank (8 N. J. L. 172), 
 140. 
 
 589 
 
TABLE OP CASES CITED. 
 
 References are to Sections. 
 
 Cozzins V. Whittaker (3 Stew. & P. 
 
 322), 187. 
 Craddock v. Stewart (6 Ala. 77), 
 
 277. 
 Craft V. BuUard (1 Sneed & M. Ch. 
 
 366), 248. 
 Crafts V. Crafts (13 Gray, 168), 234. 
 Craft V. Esham (13 Conn. 41), 38. 
 
 ». Russell (67 All. 9), 234. 
 Cragin v. Coe (29 Conn. 61), 325. 
 V. Carmlcbael (2 Dill. 519), 
 240. 
 Craig's Appeal (77 Pa. St. 448), 
 
 84a. 
 Craig V. Andrews (7 Iowa, 17), 292. 
 V. Dimock (47 111. 308), 239. 
 ». Godfrey (1 Cal. 415), 78. 
 «. Harper (3 Cush. 158), 33. 
 V. Marsh (4 Daly, 61), 327. 
 V. Miller (22 Up. Can. C. P.), 
 
 348, 193. 
 V. Tappin (2 Sandf. Ch. 78, 90), 
 
 248. 
 V. Tappin (2 Sandf. Ch. 78), 
 
 284. 
 U.Ward (3 Keys, 387), 173. 
 Grain v. McGroon (86 111. 431), 140. 
 
 V. Paine (4 Cush. 483), 245. 
 Cral V. Philips (66 III. 216), 320. 
 Crandall v. Brown (18 Hun, 461) 
 238. 
 V. State (28 Ohio St. 480), 280. 
 Crane v. Bonnell (1 Green Ch.264), 
 204, 224. 
 V. Denning (7 Conn. 287), 234. 
 V. London Dock Co. (5 Best & 
 
 Smith, 313), 311. 
 V. McDonald (45 Barb. 355), 
 
 144. 
 V. Pearson (49 Me. 97), 222. 
 V. Powell (L. E. 4 C. P. 123), 
 
 75. 
 V. Pratt (12 Gray, 348), 154. 
 Cranson v. Goss (107 Mass. 439), 
 308. 
 590 
 
 Crapo V. Seybold (35 Mich. 169; 36 
 
 Mich. 444), 88. 
 Crasson v. Swoveland (22 Ind. 
 
 427), 227. 
 Craven v. Ryder (6 Taunt. 433), 
 323. 
 V. Hornburg (26 Kan. 94), 190. 
 Crawcour, Ex parte (9 Ch. D. 
 419 C. A), 87. 
 V. Salter (18 Ch. D. 30 C. A.), 
 87. 
 Crawford v. Blackburn (19 Md. 40), 
 277. 
 V. Burton (6 Iowa, 476), 240. 
 V. Davis (99 Pa. St. 676), 84o. 
 V. Forristall (57 N. H. 102; 
 
 58 N. H. 104), 84o. 
 V. Kirtsey (50 Ala. 590; 55 
 
 Ala. 282), 84a. 
 V. Roberts (50 Cal. 236), 144. 
 Crawshay v. Collins (J. & W. 2 67; 
 2 Buer, 339),233. 
 J.Homfray (4B. & Aid. 50), 120. 
 Crayton v. Munger (9 Tex. 285), 
 
 277. 
 Creanor v. Creanor (36 Ark. 91), 
 
 120. 
 Creekmore v. Chitwood (7 Bush. 
 
 317), 306. 
 Creen v. Hart (1 Johns. 580), 221. 
 Creighton v. Comstock (27 Ohio St. 
 548), 102. 
 u. Prlngle (3S.C.77), 277. 
 Crenshaw v. Slye (52 Md. 146), 193. 
 Cresson v. Stout (17 Johns. 116), 
 
 261. 
 Cressy v. Sabre (17 Hun, 120), 51, 
 
 231. 
 Crevellng v. Wood (95 Pa. St. 152), 
 
 1, 271. 
 Crews V. Tieadgill (35 Ala. 334), 
 
 204. 
 Crine v. Tifts (65 Ga. 644), 233. 
 Crist V. Kleber (79 Pa. St. 290), 9, 
 203. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Critcher v. Holloway (64 N. C. 526), 
 
 297. 
 Crocker a. Crocker (31 N. Y. 507), 
 
 317, 327. 
 Crocker v. Franklin Hemp. Co. (3 
 
 Sumn. 630), 84. 
 V. GuUifer (44 Me. 491), 6, 213. 
 V. Higgins (7 Conn. 342), 196. 
 Crockett ». Scribner (64 Me. 447), 
 
 58. 
 Crofoot V. Bennett (2 N. Y. 258) ^ 
 
 82, 87, 88, 238. 
 Croft V. Bunster (9 Wis. 503), 
 
 245. 
 Croinger v. Crocker (62 N. Y. 151), 
 
 114. 
 Cromelin v. McCauley (67 Ala. 
 
 642), 234. 
 Crommelin a. N. Y. & Harlem E. 
 
 B. Co. (4 Keys, 90), 119. 
 Crompton v. Parsons (70 Mo. 465), 
 
 332. 
 Crompton v. Pratt (105 Mass. 256), 
 
 85, 230, 825. 
 Croinger v. Paige (48 Wis. 229), 
 
 185. 
 Croningerc. Crocker (62 N.Y. 151), 
 
 101. 
 Crook V. Cowan (64 N. C. 748), 38. 
 Crooker?;. Appleton (25 Me. 131), 
 
 268. 
 Crooks V. David (6 Grant (Ont.) 
 
 317), 78, 158, 169. 
 !). Moore (1 Sandf. 297), 334. 
 V. Stuart (2 McCrary, 13), 240. 
 Croom V. Sliaw (1 Fla. 211), 183, 
 
 269. 
 Crookshank v. Burrell (18 Jolins. 
 
 58), 56, 58. 
 Crosby v. Baker (6 Allen, 296), 231, 
 
 233. 
 V. Hill (39 Oliio St. 100), 269. 
 V. Watkins (12 Cal. 86), 335. 
 V. Wadsworth (6 East, 602), 
 
 69, 231. 
 
 Cross V. Eglin (2 B. & Ad. 106), 
 
 102. 
 V. Peters (1 Greenl. 378), 170, 
 
 171. 
 V. O'Donnell (44 N. Y. 661), 
 
 65, 85, 133. 
 Crosskey v. Mills (1 C. M. & K. 
 
 298), 282. 
 Crosslandu. Hail (33 N. J. Eq* 
 111), 164. 
 V. Hall (33 N. J, Bq. Ill), 
 166. 
 Crossley v. Maycock (18 Eq. 180), 
 
 33. 
 Croswell u. AUis (25 Conn. 301) 
 
 233. 
 Crotenkemper w. Archtermeyer (U 
 
 Bush, 222), 285. 
 Crouch V. Culbreath (11 Rich. 9), 
 
 124. 
 Crow V. Red River Co. Bank (52 
 
 Tex. 362), 233. 
 Crowder v. Austia (3 Bing. 368), 
 
 165. 
 Crowinger v. Crocker (61 N. Y. 
 
 151), 99. 
 Growler v. Reed (80 Ind. 1), 296. 
 Crown V. Cuninger (66 Ind. 690), 
 
 158. 
 Croylea v. Moses (90 Pa. St. 250), 
 
 163, 167. 
 Cruder v. Pennock (14 S. & R. ), 
 
 149. 
 Cruess v. Pessler (39 Cal. 336), 163, 
 
 166. 
 Cruikshanks v. Coggswell (26 111. 
 
 366), 84o. 
 Crulckshanks v. Rose (1 Moody & 
 
 B. 100), 162. 
 Cruikshanks v. Rose (5 C. & P. 19), 
 
 292; 
 Crump V. Secrest (9 Tex. 260), 
 
 301. 
 V. U. S. Mining Co. (7 Gratt. 
 
 352), 160, 173. 
 
 591 
 
TABLE OF CASES CITED. 
 
 Seferenceg are 
 
 Cubbridge v. Bradwright (1 Euss. 
 
 Ch. 549), 277. 
 Cudworth v. Scott (41 N. H. 466), 
 
 231. 
 Culin V. Woodbury Glass Works 
 
 (108 Pa. St. 220), 335. 
 OuUen V. Blmm (37 Ohio St. 236), 
 
 190. 
 Calverhouse ». Shivey (42 Ark. 25), 
 
 277. 
 Cumberland Bone Co. v. Andes Ins. 
 
 Co. (64 Me. 466), 88. 
 Cumberland Coal Co. v. Sherman 
 
 (30 Barb. 663), 270. 
 Cummer v. Butts (40 Mich. 322), 
 
 33. 
 Cumming v. Koebuck (Holt, 172), 
 
 79. 
 Cummings v. Henry (10 Ind. 109) , 
 25. 
 V. Griggs (2 Duv. 87), 84o, 106. 
 V. Tovey (39 Iowa, 196), 240. 
 Cummins v. Beaumont (68 Ala. 
 204), 142. 
 V. Griggs (2 Duvall (Ky.), 87; 
 5 Bush, 335), 104. 
 Cunday v. Lindsay (L. R. 3 Aop. 
 
 Cas. 463), 310, 311,313. 
 CunlifE V. Harrison (6 Ex. 903) 89, 
 
 101. 
 Cunningham v. Ashbrooke (20 Mo. 
 653), 1, 83, 87, 205. 
 V. Brown (44 Wis. 72), 45. 
 V. Cassidy (17 N. Y. 276), 262. 
 0. Cunningham (18 B. Mon. 24), 
 
 300. 
 V. Hall (1 Sprague, 404), 190. 
 V. Hall (4 Allen, 273), 190. 
 V. Rogers (14 Ala. 147), 260. 
 Cupples V. Whelan (61 Mo. 583) , 
 
 269. 
 Curd V. Wunder (6 Ohio St. 92), 
 
 241. 
 Cudin V. Woodbury Glass Works 
 (108 Pa. St. 220), 233. 
 592 
 
 to Sections. 
 
 Curran v. Downs (3 Mo. App, 468), 
 
 294, 306. 
 Carrie v. Anderson (29 L. J. Q. B. 
 87;2E. &E. 592), 68. 
 V. Anderson (2 E. & E. 592; 
 
 29 L. J. Q. B. 87), 68. 
 V. Knight (34 M. J. Eq. 485), 
 
 238. . 
 V. Misa (L. R. 10 Ezch. 163), 
 
 146. 
 V. White (45 N. Y. 822), 302. 
 V. Davis (111 Mass. 480), 143. 
 V. Knapp (117 Mass. 324), 86, 
 
 • 230, 325. 
 V. Sutherland (54 N. H. 476; 
 
 20 Am. Rep. 143), 174. 
 V. McCauIey (11 Fed. Rep. 366), 
 240. 
 Curtis V. Aspinwall (114 Mass. 
 187), 165. 
 V. Auber (1 J. & W. 626), 231. 
 V. Blair (26 Miss. 325), 38. 
 V. Gibney (59 Md. 131), 208, 
 
 209, 210. 
 V. Hubbard (9 Met. 328), 144. 
 V. Lyman (24 Vt. 338), 239. 
 V. Martz (14 Mich. 506), 233. 
 Curtis Mfg. Co. v. William (3 S. 
 W. Rep. (Ark.) 517), 190. 
 Curtis V. Norton (1 Ohio, 278), 25R. 
 V. Phillips (5 Mich. 121), 233. 
 i. Pugh (10 Q. B. Ill), 67. 
 V. Tyler (9 Paige Ch.432), 234, 
 Curtiss V. Leavitt (15N.Y. 120), 175. 
 V. McDougal (26 Ohio St. 66), 
 229. 
 Curtton V. Moore (2 Jones' Eq. 
 
 204), 28. 
 Cusack V. Robinson (1 B. & S. 299), 
 122. 
 V. Robinson (30 L. J. Q. B. 
 264; IB. &S. 299), 69. 
 V. Robinson (1 B. &S. 299; 30 
 L. J. Q. B. 261), 65, 66, 
 67, 95, 114. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Cushing II. Breed (14 Allen, 376), 
 7, 96, 104, 106. 
 V. Breed (14 Allen, 380), 88. 
 Cusiima V. Forest (4 Cranch, 37), 
 
 163. 
 Cushman v. Hayes (46 111. 145), 274. 
 V. Holjoke (34 Me. 289), 82. 
 B. Jewell (7 Hun, 52.5), 217. 
 B. Jewell (14 N. Y. S. C. 525), 
 
 210. 
 V. Llbby (15 Gray, 368), 145. 
 Cushman v. Luther (53 N. H. 562), 
 234, 239. 
 V. Marshall (21 Me. 122), 163. 
 V. Thayer Mfg. Co. (76 N. Y. 
 371), 319. 
 Cutler J). Copeland (18 Me. 127)^ 
 241. 
 B. Pope (13 Me. 377), 59. 
 Cutter V. Collins (12 Cush. 233), 
 296. 
 u. Copelahd (18 Me. 127), 84a. 
 Cutting V. Jackson (66 N. H. 252) , 
 84o. 
 V. Jackson (56 N. H. 253), 174. 
 
 D. 
 
 Dabney v. Green (4 H. & M. (Va.) 
 
 101), 224. 
 Dabovich b. Bmeric (12 Cal. 171), 
 
 335. 
 DaCosta v. Jones (Cowp. 734;, 301. 
 Daggett B. Emerson (3 Story, 700), 
 
 163. 
 ». Johnson (49 Vt. 345), 213. 
 Dailey v. Jessup (72 Mo. 144), 158. 
 Dalby v. India Life Ins. Co. (15 C. 
 
 B. 366), 801. 
 Dale B. Knapp (98 Pa. St. 389), 308. 
 B. Stimpson (21 Pick. 384), 69. 
 Dalglish V. McCarthy (19 Grant's 
 
 Ch. 678), 174. 
 Dallard v. Botts (6 Allen (N. B.) 
 
 443), 67. 
 
 Dalton V. Goddard (104 Mass. 497) , 
 
 273. 
 
 v'. Landahn (27 Mich. 529), 222. 
 
 V. Thurston (3N. E. Rep. 383), 
 
 170. 
 
 Daly V. Com. (76 Pa. St. 331), 281. 
 
 V. Neacks (Berton (N. B.) 346), 
 
 66. 
 V. Proetz (20 Minn. 411), 243. 
 Dambmann v. Schulting (75 N. Y. 
 
 55, 62), 157, 171. 
 Dame v. Dame (38 N. H. 429), 59. 
 Dames v. Copes (4 Binn. 258), 84a. 
 Damon v. Osborn (1 Pick. 476), 88, 
 
 104. 
 Dana ». Fielder (12 N. Y. 40), 335. 
 
 V. King (2 Pick. 156), 207. 
 Dance v. Seaman (11 Gratt. 778), 
 
 84ffl, 175. 
 Dando v. Foulds (105 Pa. St. 74), 5. 
 Dane v. Kirkail (8 C. &P. 670), 22. 
 
 V. Mallory (16 Bare. 46), 248. 
 Danforth v. Beattie (43 Vt. 138), 
 174. 
 V. Walker (37 Vt. 239), 333. 
 Daniels v. Bailey (43 Wis. 666), 
 
 59. 
 Daniel v. Jackson (68 G. A. 87), 
 284. 
 V. Morrison (6 Dana, 186), 84o. 
 Daniels v. Nelson (41 Vt. 161), 
 
 84a. 
 Daniells v. Aldrich (42 Mich. 587), 
 
 193. 
 Darbei). Boucher (1 Salk. 279), 17. 
 Darby v. Cabanne (1 Mo. App. 126), 
 
 23. 
 Darst V. Brockaway (11 Ohio, 462) , 
 185. 
 V. Gale (88111. 136), 239. 
 V. Thomas (87 111. 222), 165. 
 Darwin v. Handley (3 Yerg. 602), 
 
 84a. 
 Danbenspeck b. Piatt (22 Cal. 330), 
 I 204. 
 
 38 593 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Davenport v. Ledger (80 111. 674), 
 241. 
 V. Mason (15 Mass. 85), 196. 
 Davenport Nat. Bank v. Hoymeyer 
 
 46 Mo. 145), 321. 
 Davenport v. Wells (1 Iowa, 698), 
 
 335. 
 Davey v. Kelly (66 Wis. 457), 174. 
 Davidson v. Wood (1 De G. J. & S. 
 
 465), 23. 
 Davies v. McLean (21 W. E. 264; 
 28 L. T. (N.s.) 113), 94, 
 96. 
 V. Smith (4 Esp. 36), 19. 
 Davis ». Bechstein (69 N. Y. 440), 
 245. 
 o.Betz (66 Ala. 206), 163. 
 V. Blume (1 Mont. 463), 243. 
 V. Bradley (24 Vt. 55), 325. 
 ■B. Bronson (6 Iowa, 410), 294. 
 V. Bndd (60 Iowa, 144), 98,103. 
 V. Caldwell (12 Cash. 612), 17. 
 V. City Bank (57 N. Y. 82), 146. 
 V. Com. (3 Watts, 297), 281. 
 D.Eastman (1 Allen, 422), 64. 
 V. Emery (61 Me. 140), 208. 
 V. Emery (11 N. H. 230), 325. 
 Davis' Estate (6 Whart. 537), 14JI. 
 Davis V. Funk (39 Pa. St. 243), 274, 
 316. 
 V. Garrett (6 Bing. 716), 282. 
 ■0. Hamlin (108 111. 39), 270. 
 V. Hill (3 N. H. 382), 82, 87. • 
 V. Hulbard (38 Ala. 185), 221, 
 
 227, 247. 
 V. Hunt (2 Bailey, 412), 283. 
 0. Irwin (8 Ga. 1532), 283. 
 B. Jones (3 Houst. 68), 105. 
 V. Mason (5 T. R. 118), 303. 
 V. Moore (13 Me. 424), 63, 71. 
 v. Murray (1 Mill. Const. 143), 
 
 283. 
 V. Murray (2 Mill. 143), 187. 
 V. McFarland (37 Cal. 638), 
 104. 
 594 
 
 Davis V. McWhirter (40 Up. Can. 
 
 Q. B. 598)k» 126, 170. 
 V. Nye (7 Minn. 414), 186. 
 V. Eawson (18 111. 396), 84o. 
 V. Kasom (26 111. 100), 240. 
 V. Richardson (1 Bay, 105), 336. 
 t>. Robertson (1 Mill. 71), 67. 
 V. Robertson (1 Mill. Const. 
 
 71), 286. 
 V. Rowell (2 Pick. 64), 57, 286. 
 1.. Russell (52 Cal. 611; 28 Am. 
 
 Rep. 647), 105, 122. 
 V. Shields (24 Wend. 326), 335. 
 V. Shields (26 Wend. 341) 76, 
 
 77. 
 V. Stewart (8 Fed. Rep. 803), 
 
 170. 
 V. Stewart (3 McCary, C. C. 
 
 174; 8 Fed. Rep. 803), 
 
 170. 
 V. Stonestreet (4Ind. 101), 204. 
 V. Stonestreet (4 Ind. 191) 224. 
 V. Turner (4 Gratt. 422), 84a. 
 Davison v. Seymour (1 Bosw. 88), i. 
 
 300. 
 Dawson v. Callis (10 C. B. 630), 
 
 197. 
 Dawes v. Cope (4 Binn. 258), 104. 
 V. Eckstone (1 McCrary C. C. 
 
 434), 320. 
 V. Peck (8 T. R. 330), 85, 95, 
 
 122. 
 o. Peebler (6 Fed. Rep. 866), 
 
 190. 
 Daws V. Montgomery (5 Roberts, 
 
 445), 65. 
 Dawson v. Graham (48 Iowa, 378)j 
 
 158. 
 ». Miller (20 Tex. 171), 286. 
 V. Lusong ( 1 Heisk. 243), 311. 
 Day V. Bassett (102 Mass. 446), 
 
 86, 325. 
 V. Cooley (118 Mass. 524), 174. 
 V. Cross (59 Tex. 595), 102. 
 V. Griffith (15 Iowa, 104), 237. 
 
TABLE OF CASES CITED, 
 
 References are 
 
 Day V. Holmes (103 Mass. 306), 
 272. 
 V. McAllister (15 Gray, 433), 
 
 290, 293, 308. 
 V. Munson (14 Ohio St. 488), 
 
 239, 240. 
 V. Pool (52 N, Y. 416), 187, 
 
 197. 
 V. Eaguet (14 Minn. 273), 188. 
 V. Eaguet (14 Minn. 282), 188. 
 V. Swift (48 Me. 868), 223. 
 V. Tliompson (65 Ala. 269), 144. 
 Daylight Burner v. Odlin (51 N. H. 
 
 66), 273. 
 Dayton v. Hooglund (39 Ohio St. 
 671), 183, 188,269. 
 V. People's Savings BanI: (23 
 
 Kan. 421), 238. 
 V. Trull (23 Wend. 345), 146, 
 147, 148. 
 Deal V. Maxwell (51 N. Y. 652), 58. 
 i)ealin v. Brady (36 N. Y.531), 298. 
 Dean v. Emerson (102 Mass. 480), 
 803. 
 V. Lammera (68 Wis. 331), 7. 
 V. Mason (4 Conn. 432), 196. 
 V. Mason (4 Conn. 428), 186, 
 
 187. 
 V. Morey (33 Iowa, 120), 187, 
 
 194. 
 V. Richmond (5 Pick. 461), 29. 
 <;. Tallman (105 Mass. 443), 65. 
 u. Yates (22 Ohio St. 388), 35. 
 ■u. Yeates (22 Ohio St. 368), 
 327. 
 Dearborn v. Turner (16 Me. 17), 5, 
 
 213. 
 Dearmau u. Radcliffe (5 Ala. 192), 
 
 174. 
 Deason v. Boyd (1 Dana, 45), 19. 
 Debane v. Fennell (2 Ired. 37),_82. 
 Decau v. Shipper (35 Pa. St. 239) , 
 
 35, 134. 
 Decell V. Lewenthal (57 Miss. 331), 
 17, 290. 
 
 to Sections. 
 
 Declier v. Frederick (47 N. J. L. 
 
 469), 269. 
 V. Fredericks (47 N. J. L. 692), 
 
 183. 
 Decorah v. Dunstan (38 Iowa, 96), 
 
 281. 
 DeCordova v. Knowles (37 Tex. 14), 
 
 269. 
 ■0. Smith (9 Tex. 129), 76. 
 DeCourcey v. Collins (21 N. J. Eq. 
 
 357), 240. 
 V. Collins (21 N. J. Eq. 367; 
 
 s. c. 19 N. J. Eq. 115), 
 
 239. 
 Da Costa ». Cole (Holt, 465; Skin. 
 
 272), 143. 
 Deedlyc. Caldwell (19 Conn. 218), 
 
 221. 
 DeEplneville, In re (20 Ch. Dlv. 
 
 758), 63. 
 Deeming B. Foster (42 N. H. 166), 
 
 190. 
 Deering v. Austin (34 Vt. 330), 324. 
 V. Chapman (22 Me. 488), 292. 
 V. Cobb (74 Me. 334), 51. 
 V. Thorn (29 Minn. 120), 183, 
 
 269. 
 V. Thorn (29 Minn. 120), 269. 
 Deere v. Lewis (51 111. 254), 335. 
 Deffenbaugh v. Weaver (87 111. 132), 
 
 89. 
 Deforest v. Bacon (2 Conn. 683) 
 
 175. 
 DeFrance v. DeFrance (34 Pa. St. 
 
 885), 224. 
 Delckerfoff v. Brown (21 Md. Eep. 
 
 583), 168. 
 DelamatarB. Chappell (43 Md. 244), 
 
 11.5. 
 V. Chappell (48 Md. 244), 115, 
 
 213. 
 DeL. Montague v. Union Ins. Co. 
 
 (42Cal. 290),253. 
 Delano v. Wilde (11 Gray, 17), 
 
 314. 
 
 ^95 
 
TABLE OP CASES CITED. 
 
 References are to Sections. 
 
 Delaware Bank v. Jarvis (20 N. Y. 
 
 226), 146. 
 Delaware, The (U "Wall. 679), 323. 
 DeLeon v. Hlguera (15 Cal. 483), 
 
 222. 
 Dellone v. Hall (47 Md. 112), 170, 
 
 332. 
 Delves v. Delves (L. E. 20 Eq. 77), 
 
 285. 
 De Medeiros v. Hill (5 C. & P. 182), 
 
 214, 
 DeMets v. Dogon (53 N. Y. 635), 
 
 143. 
 Denning v. Chase (48 Vt. 382), 183, 
 
 269. 
 V. Foster (42 N. H. 166), 187. 
 DeMott V. Benson (4 Bdw. Ch. 
 
 297), 234, 
 Dempsey v. Carson (11 Up. Can. Q. 
 
 B.462), 121. 
 V. Gardner (127 Mass. 381 (34 
 
 Ann. Eep. 388), 104. 
 B.Gardner (127 Mass. 381), 84a. 
 V. West (69 111. 613), 269. 
 Den V. Zellers (1 Halst. 153) 165, 
 
 265. 
 V. Zellen (7 N. J. L. 153), 
 
 285. 
 V. Zellers (2 Halst. (N. J.) 
 
 153), 265. 
 Denham ». Sankey (38 Iowa, 269), 
 
 230. 
 Denman v. Cherokee Iron Co. (56 
 
 Ga. 319), 113. 
 Denning v. Foster (42 N. H. 175), 
 
 182. 
 Denmead v. Glass (30 Ga. 637), 65. 
 Dennetts. Dennet (44 N. H. 631), 
 
 21. 
 Denney v. Wright (60 Wis. 733), 
 
 271. 
 Dennis v. Alexander (3 Pa. St. 61) , 
 
 87. 
 V. Sharman (31 Ga. 607), 163. 
 V. Williams (40 Ala. 633), 144. 
 59'6 
 
 Dent V. Cock (65 Ga. 400), 17. 
 V. McGrath (3 Bush. 174), 
 
 283. 
 Denny v. Elkins (4 Cranch C. C. 
 
 161), 301. 
 V. Faulkner (22 Kan. 89) 84a, 
 
 239, 248. 
 V. Lincoln (13 Met. 200), 240, 
 V. Lincoln (5 Mass. 385), 298. 
 V. Williams (5 Allen, 1),64. 
 Densmore v. Tomer (11 Neb. 118), 
 
 84a. 
 Deposit V. Pitts (18 Hun, 475), 
 
 281. 
 Dermott v. Jones (23 How. 220), 
 
 209. 
 V. Jones (2 Wall. 1), 209, 218, 
 Derosia v. Winona, &c., E, E. Co. 
 
 (18 Minn. 119), 100. 
 Derry v. Duchess of Mazarine (1 
 
 Ld. Eaym. 147), 29. 
 Descarlett v. Dennett (9 Md. 22), 
 
 219. 
 Des Farzee v. Pugh (93 N. C. 31), 
 
 170. 
 DeSewhanberg «. Buchanan (5 C. 
 
 & P. 343), 189. 
 Deshza v. Lewis (5 St. & P. 94), 
 
 225. 
 Deshon v. Bigelow ( 8 Gray, 169), 
 
 85, 93. 
 Desloge v. Eanger (7 Mo. 327), 
 
 224. 
 Despard v. Walbridge (15 N. Y. 
 
 374), 228. 
 Despatch Line of Packets v. Bel- 
 lamy Mfg. Co. (12 N. H. 
 
 205), 236. 
 Devall V. Burbridge (4 Watts & S. 
 
 315), 270. 
 Deyane v. Fennell (2 Ired. 36), 
 
 206. 
 V. Fennell (2 Ired. 37), 87. 
 Devlin v. Mayor, &c. (63 N. Y. 8), 
 
 336. 
 
TABLK OF CASES CITED. 
 
 References are to Sections. 
 
 Dever». Corcoran (3 Allen (N. B.), 
 
 338), 290. 
 Devln V. Scott (34 Ind. 67), 253. 
 Devine v. Edwards (101 111. 138), 
 
 96. 
 Devine v. Edwards (87 111. 177), 
 
 209. 
 Devoe v. Brandt (53 N. Y. 462), 
 
 159, 168, 170, 327, 329. 
 Dovone v. Fanning (2 Joiins Ch. 
 
 253), 277. 
 Devonshire v. Gathreaux (33 . La. 
 
 An. 1132), 84a. 
 Dewall V. Peach (1 Gill. 372), 286. 
 Deweesv. Miller (5 Harr. 347), 301. 
 V. Morgan (1 Mart. (La.) 1), 
 
 187. 
 Dewey v. Erie (14 Pa. St. 211), 213. 
 Dewing v. Scars (U Wall. 379), 
 
 143. 
 DeWolf V. Gardner (12 Gush. 19), 
 
 317. 
 DeWolf V. Gardner (12 Gush. 26), 
 
 89. 
 Dexter v. Norton (47 N. Y. 62), 50, 
 
 218. 
 V. Shepherd (117 Mass. 480), 
 
 169, 265, 285. 
 Dey V. Dox (9 Wend. 120), 335. 
 
 V. Dunham (2 Johns. 96), 227. 
 DeYampert v. Brown (28 Ark. 166), 
 
 146. 
 DezeU v. Odell (3 Hill, 215), 255. 
 D'lvemois v. Leavitt (23 Barb. 63), 
 
 175. 
 Dick B.Cooper (24 Pa. St. 217), 
 
 168, 169. 
 V. Linsay (2 Grant Cas. 431), 
 
 169. 
 V. Page (17 Mo. 234), 142. 
 Dickinson v. Dodds (2 Ch. D. 463), 
 
 41. 
 V. Dodds (2 Ch. D. 463 C. A.) 
 
 40. 
 V. Dodds (2 Ch. D. 475), 40. 
 
 Dickinson v. Seelye (12 Barb. 101), 
 
 323. 
 Dickerman v. Puckhafer (1 Abb. 
 
 Pr. (N. s.) 32), 239. 
 Dickey ». Linscott (20 Me. 453), 
 
 218. 
 Dickinson v. Calahan (19 Fa. St. 
 
 227), 218. 
 Dickson v. Evans (84 III. 451), 327. 
 Dickinson v. Gay (7 Allen, 29), 187, 
 
 188, 192. 
 V. Hall (14 Pick. 217), 163. 
 V. King (28 Vt. 378), 144. 
 V. Lee (102 Mass. 559), 167. 
 V. Lee (106 Mass. 557), 158. 
 V. Dickinson's Exr. a. Thomas 
 
 (97 Pa. St. 278), 302. 
 Dixon V. Yates (5 B. & Ad. 313), 
 
 122. 
 Diesback v. Stein (41 Ohio St.), 70, 
 
 256. 
 Dieringer v. Meyer (42 Wis. 311), 
 
 270. 
 Diesback v. Lewlsburg Bridge Co. 
 
 (81 Pa. St. 177), 193. 
 DietZD. SutcIifE (80 Ky. 650), 332. 
 Dike «. Reitlinger (23 Hun, 242), 
 
 214. 
 V. Reitlinger (23 Hun, 241), 
 
 188. 
 Dilk V. Keighlay (2 Esp.480), 17. 
 Dillu. Ferrell (45 Ind. 268), 197. 
 Dillage v. Commercial Bank (51 
 
 N. Y. 345), 277. 
 Dillard v. Moore (2 Eng. 166), 195. 
 Dillingham v. Bolt (37 N. Y. 198), 
 
 239. 
 Dillman v. Nadlehoffer (119 111. 
 
 567), 158. 
 Dillon V. Browles (77 Mo. 603), 17. 
 V. Rimmer (1 Bing. 100), 147. 
 Dilworth v. Bradner (85 Pa. St. 
 
 238), 160. 
 Dimmick v. Hallett (L. R. 2 Ch. 
 
 21), 165. 
 
 597 
 
TABLE OF CASES CITED. 
 
 References are to Sections 
 
 Dimmick v, Lockwood (10 Wend. 
 
 142), 163. 
 Dingle v. Hare (7 C. B. (n. s.) 145), 
 
 183, 269. 
 Distilling Co. v. Nutt (34 Kan. 724), 
 
 294. 
 Ditchburn v. Goldsmitli (4 Campb, 
 
 162), 301. 
 Ditman v. Norman (118 Mass. 319, 
 
 324), 8. 
 Ditson V. Randall (33 Me. 202), 
 
 327. 
 Divine v. McCormick (50 Barb. 
 
 116), 191. 
 Divcer v. McLaughlin (2 Wend. 
 
 696), 234. 
 Dixon V. Coke (77 N. C. 205), 233. 
 V. Fletclier (3 M. & W. 145), 
 
 89, 101, 113. 
 V. McClutcliey (Add. 322), 167, 
 V. Yates (6 A. & E. 313), 86. 
 V. Yates (5 Barn. & Ad. 313), 
 
 84. 
 V. Yeates (5 Barn. &Adol. 313), 
 120, 122. 
 Doak V. Brubaker (1 Nev. 218), 
 238. 
 V. Johnson (4 Kerr, 319), 174. 
 V. Snapp (1 Coldw. 180), 335. 
 Doane v. Dunham (79 111. 131), 114, 
 
 155. 
 Dobell«. Hutchinson (3 A. & E. 
 
 370), 75. 
 Dockrayw. Dockray (2 E. I. 547), 
 
 175. 
 Dodd V. Durand (5 U. C. 2 B. 623), 
 8. 
 V. Farlow (11 Allen, 426), 183, 
 
 192, 272. 
 V. Wakeman (26 N. J. Eq. 484), 
 270. 
 Dodge V. Emerson (131 Mass. 467), 
 144. 
 V. Potter (18 Barb. 193), 233, 
 234, 239. 
 598 
 
 Dodger v. Pearly (19 Hun, 277), 
 
 140. 
 Dodsley v. Varley (12 Ad. & E. 
 
 632), 69, 119. 
 Dodson ». Harris (10 Allen, 566), 
 308. 
 y. Simpson (2 Rand. 294), 277. 
 Doe». Hurd (1 Blackf. 610), 174. 
 V. McLoskey (1 Ala. 708), 234. 
 V. Stanlon (1 M. & W. 701), 
 180. 
 Doebling v. Loss (40 Mo. 150), 144. 
 Doggett V. Emerson (8 Story, 733), 
 
 160. 
 Dolan V. Green (110 Mass. 322), 
 
 85, 95. 
 Dole V. Bodman (3 Met. 139), 237. 
 V. Olmstead (36 111. 150), 88. 
 V. Olmstead (36 111. 150; 41 HI. 
 344), 7. 
 Dollard v. Botts (6 Alien (N. B.) 
 
 443), 115, 189. 
 DoUen V. Le Roy (30 N. Y. 549), 
 
 334. 
 Dolllver v. Ela (128 Mass. 559), .59. 
 Dolson V. Hope (7 Kan. 161), 308. 
 Doly V. Mitchell (9 Smed. & M. 447), 
 
 30. 
 Domestic Sewing Machine Co. v. 
 Anderson (23 Minn. 57), 
 9, 203. 
 V. Arthurhultz (63 lud. 325), 
 325. 
 Donale v. Arnold (28 Tex. 97), 316. 
 V. Suckling (L. R. 1 Q. B. 586), 
 316, 317. 
 Donaldsons. Benton (4 Dev. &Bat. 
 435), 140. 
 V Farwell (93 U. S. 613), 170, 
 
 329. 
 V. Johnson (2 Claud. (Wis.) 
 
 160), 240. 
 V. McRoy (1 Brown, 346), 165. 
 V. Newman (9 Mo. App. 235), 
 185, 215. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Donelson v. Posey (13 Ala. 752), 
 
 25. 
 V. Young (1 Meigs, 155), 163. 
 Donath v. Broomhead (7 Pa. St. 
 
 301), 130. 
 Donnell v. Hearu (12 Daly, 230), 
 
 333. 
 Donnell v. Starlight, The (103 
 
 Mass. 227), S44. 
 Donohne v. Gamble (38Cal. 340), 
 
 274. 
 Donovan v. Wilson (26 Barb. 138), 
 
 68. 
 Dood V. Adams (125 Mass. 398), 
 
 174. 
 Dook V. Bank of the State (6 Ired. 
 
 L. 309), 223. 
 Dooley V. Smith (13 Wall. 605), 
 
 140. 
 Doolin V. Ward (6 Johns. 194), 169, 
 
 303. 
 Doolittle V. Lyman (44 N. H. 608), 
 
 290. 
 Door V. Fisher (1 Cush. 273), 180. 
 Doreman v. Howard (23 N. J. L. 
 
 390), 333. 
 Dorr ». Fisher (1 Cush. 273), 185. 
 
 V. Fisher (1 Cush. 271), 197. 
 Dorley v. McKiernan (62 Ala. 34), 
 
 174. 
 Dorsey v. Hall (7 Neb. 400), 230. 
 Doty V. Wilder (15 111. 410), 286. 
 Doubleday v. Kress (50 N. Y. 410), 
 
 272. 
 Dougal V. Cowless (5 Day, 511), 
 
 144, 146. 
 Dougherty v. McGalgan (6 G. & J. 
 
 275), 228. 
 V. Haggerty (96 Pa. St. 615), 
 
 84a. 
 Douglass V. Douglass (22 L. T. (n. 
 
 s.) 127), 11. 
 V. Dunlop (10 Ohio, 62), 174. 
 V. Merceles (26 N. J. Eq. 144) 
 
 335. 
 
 Douglass V. McAllister (3 Cranch, 
 298), 335. 
 V. Shumway (13 Gray, 498), 59, 
 231. 
 Dounce u. Dow (64 N. Y. 411), 189, 
 
 190. 
 Dow V. Sanborn (3 Allen, 182), 
 170. 
 V. Worthen (37 Vt. 108), 71. 
 Dowellc. Williams (33 Kan. 319), 
 
 117. 
 Dowing ». Dearborn (77 Me. 457), 
 
 167. 
 Dowler, Succession of (29 La. Am. 
 
 437), 287. 
 Dowling o. McKenney fl24 Mass. 
 
 480), 12, 58. 
 Downer v. Thompson (2 Hill, 137), 
 96. 
 V. Thompson (6 Hill, 208), 89, 
 V. Smith (32 Vt. 1), 163. 
 Downey u. BurkW (23 Mo. 228), 
 209. 
 V. Hicks (14 How. 240), 144. 
 V. Hicks (14 How. 249), 144. 
 Downing v. Dearborn (77 Me. 457), 
 
 187, 190. 
 Downs V. Marsh (29 Conn. 409), 
 89. 
 V. Ross (23 Wend. 270), 58. 
 Dows V. Dennistown (28 Barb. 
 
 393), 207. 
 Dows V. Greens (24 N. Y. 644), 
 323. 
 V. Green (32 Barb. 490; 24 N. 
 
 Y.438), 134. 
 V. Griswold (4 Hun, 550), 163. 
 V. Kidder (14 N. Y. 128), 325. 
 V. Kidder (84 N. Y. 121), 329. 
 V. Nat. Exch. Bank (91 U. S. 
 
 618), 86, 317. 
 V. Perrin (16 N. Y. 325), 134, 
 
 322, 323. 
 V. Rush (28 Barb. 157), 134,327, 
 329. 
 
 599 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Doyle V. Carroll (28 N. C. C. P. 
 
 218), 296. 
 
 V. Mizner (40 Mich. 160), 230. 
 
 V. Sleeper (1 Dana, 5.S8), 174. 
 
 V. Stevens (4 Mich. 87), 238, 
 
 240. 
 V. White (26 Me. 841), 234. 
 Drefer v. Randolph (4 Harr. 454), 
 
 209. 
 
 Drage v. Iberson (2 Bsp. 643), 296. 
 
 Drake, Ex parte (5 Ch. D. 866 C. 
 
 A.), 43. 
 
 V. Wells (11 Allen, 141), 69. 
 
 Draper v. Pattina (2 Speers, 292), 
 
 77. 
 Dreper v. Perkins (57 Miss. 277), 
 
 233. 
 Dresser v. Ainsworth (9 Barb. 619), 
 186. 
 V. Ainsworth (9 Barb. 620), 
 185. 
 Drentzer v. Bell (11 Wis. 114), 174. 
 Drewc. Roe (41 Conn. 50), 187. 
 Drinkwater v. Drinkwater (4 Mass. 
 354), 174. 
 V. Goodwin (Cowp. 251), 273. 
 Driscoll V. W. Bradley, etc., C. M. 
 
 Co. (59 N. Y. 96), 319. 
 Drummond v. Hooper (4 Harr. 327), 
 25. 
 V. Van Ingen (24 Kep. 731; 57 
 Law. T. (N. 8.) 1), 188. 
 Drury v. Defontain (1 Taunt. 131), 
 308. 
 V. Hervey (126 Mass. 519), 216. 
 V. Young (58 Md. 546), 77. 
 Dryden v. Kellogg (2 Mo. App. 87), 
 185, 186. 
 V. Kellogg (2 Mo. App. 92), 186. 
 Dryer B. Lewis (57 Ala. 551), 246. 
 Dubois V. Delaware, &c., Caual Co. 
 
 (4 Wend. 285), 332. 
 Dubs V. Dubs (31 Pa. St. 149), 30. 
 Ducett V. Cunningham (39 Me. 
 386), 142. 
 600 
 
 Dudgeon v. Haggart (17 Mich. 273), 
 
 146. 
 Dudley v. Abner (62 Ala. 572), 206. 
 V. Butler (10 N. H. 281), 298. 
 V. Danforth (61 N. Y. 626), 174, 
 
 175. 
 V. Little (2 Ohio, 506), 169. 
 V. Sawyer (41 N. H. 326), 207. 
 Duff V. Budd (3 Brod. & B. 177), 
 827. 
 V. Williams (88 Pa. St, 490), 
 160. 
 Duffany v. Ferguson (66 N. Y. 482), 
 
 168. 
 Duffy V. Gorman (10 Cush. 45), 
 306. 
 V. Hobson (40 Cal. 240), 269. 
 Dugan V. HoUins (11 Md. 41), 277. 
 V. Nichols (125 Mass. 43), 84, 
 
 104. 
 C.Nichols (125 Mass. 73), 83. 
 Dngdale v. Lovering (L. E. 10 C. P. 
 
 196), 288. 
 Dugmid V. Edwards (50 Barb. 288), 
 
 271. 
 Duke V. Asabee (11 Ired. 112), 306. 
 V. Cahawba Co. (10 Ala. 82), 
 
 319. 
 V. Shackleford (56 Miss. 552), 
 
 210, 325. 
 ■u. Strickland (43 Vt. 494), 232, 
 
 233. 
 V. Jones (6 Jones (N. C .) L. 14) , 
 239. 
 Dula V. Cowler (2 Jones (N. C.) 
 
 454), 209. 
 Dulancy v. Green (4 Harr. 285), 25. 
 Dunbar ». Kawles (28 Ind. 226), 325. 
 Duncan v. Bell (2 Nott & McC. 382), 
 187. 
 t u. Jandon (16 Wall. 165), 277. 
 V. Topham (L. C. B. 225), 100. 
 Duncans v. Stone (45 Vt. 118), 85. 
 Duncroft v. Albrecht (12 Sim. 189), 
 59. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Dunham v. Converse (28 Wis. 306), 
 824. 
 V. Pettee (1 Daly, 211), 69. 
 Dunkin v. McKee (23 Ind. 447), 
 
 255. 
 Dunkley v. Adams (20 Vt. 415), 
 
 219. 
 Dunlap V. Eppler (88 111. 82), 106. 
 V. Gleason (16 Mich. 158), 325. 
 «. Hale (2 Jones (N. C.) 381)) 
 
 19. 
 
 V. Shanklin (10 W. Va. 662), 
 
 144. 
 
 Dunlop V. Berry (4 Scam. 327), 88. 
 
 D.Gregory (10 N. Y. 241), 303. 
 
 V. Higgins (1 H. L. Cas. 381), 
 
 39, 40. 
 V. Lambert (6 CI. & Fin. 600), 
 
 85, 89, 95. 
 V. Lambert (2 M. & W. 653), 
 
 122. 
 V. Richards (2 E. & D. Smith, 
 181), 272. 
 Dunman v. Strother (1 Tex. 89), 
 
 301. 
 Dunmore v. Alexander (9 Shaw & 
 
 Dunlop, 190), 42. 
 Dunn V. Wright (51 Barb. 244), 142. 
 Dunne v. English (L. R. 18 Eq. 
 524), 270. 
 V. Ferguson (1 Hayes, 540), 59. 
 Dunning v. Gordon (4 Up. Can. Q. 
 B. 399), 87. 
 V. Mead (90 111. 376), 84a, 106. 
 V. Stearns (9 Barb. 630), 121, 
 222, 231, 232. 
 Dunston v. Mc Andrew (44 N. Y. 
 
 72), 334. 
 Duplex Safety Co. v. Garden (101 
 
 N. T. 387), 213. 
 Dupuy 3. Gibson (36 111. 197), 247, 
 
 249. 
 Durante. Rogers (87 111. 511), 173. 
 Durfee v. Grinnell (69 111. 371), 
 221, 236, 239, 241, 248. 
 
 Durfee v. Jones (11 R. I. 688), 35. 
 Durgin v. Dyer (68 Me. 143), 306. 
 Durgy Cement, etc., Co. v. O'Brien 
 
 (123 Mass. 14), 126, 130. 
 
 V. O'Brien (123 Mass. 12), 135. 
 
 Durham's Estate (49 Cal. 491), 277. 
 
 Durkee v. Central Railway Co. (29 
 
 Vt. 127),39. 
 Durnfordu. Degruys (8 Mart. (La.) 
 
 226), 263. 
 Durr V. Hervey (44 Ark. 301 ; 51 Am. 
 
 Rep. 694), 320. 
 Durrell v. Evans (30 L. J. Ex. 254 ; 
 
 s. c. 6H. &N. 660; s. c. 
 
 31 L.J. Ex. 337; 1 H. & 
 
 C. 174), 77, 78. 
 Durst V. Burton (47 N. Y. 167), 173, 
 
 336. 
 ti. Burton (2 Lans. 187; 47 N. 
 
 Y. 174), 163, 173. 
 V. Burton (47 N. Y. 175), 333. 
 Dusing V. Nelson (7 Cal. 184), 
 
 277. 
 Dustan v. McAndrew (44 N. Y. 72), 
 
 333, 334. 
 Dutchers Co. v. Harding (49 N. Y. 
 
 321), 115, 197, 215. 
 Dutton ». Ives (2 Mich. 515), 245. 
 V. Solomons (4 B. & P. 582), 
 
 85. 
 V. Solomonson (3 B. & P. 582), 
 
 89. 
 V. Willmer (52 N. Y. 312), 270. 
 Duvall V. Medtart (4 H. & J. 14), 
 
 167. 
 Dwight's V. Case (15 Abb. Pr. 269), 
 
 283. 
 V. Whitney (15 Pick. 179) , 273. 
 Dwinel v. Howard (3 Me. 258), 
 
 210. 
 Dye V. WaU (6 Ga. 684), 180. 
 Dyer v. Homer (22 Pick 253), 174. 
 
 V. Libby (61 Me. 45), 831, 87. 
 Dyette v. North Am. Coal Co. (20 
 
 Wend. 570), 30. 
 601 
 
TABLE OP CASES CITED. 
 
 References are to Sections. 
 
 Dygert ». Remerschnider (32N. Y. 
 
 648), 174. 
 Dykers W.Allen (1 Hill, 497), 274. 
 V. Townsend (24 N. T. 61), 73. 
 
 E. 
 
 Eads V. Stephen (63 Mo. 90), 261. 
 Eagan v. Call (35 Pa. St. 236), 187, 
 
 188. 
 Eagle Bank v. Smith (5 Conn. 71), 
 
 149. 
 Eakin v. Herbert (4 Coldw. 116), 
 
 266. 
 Eames v. Savage (14 Mass. 425), 
 
 211. 
 Earll V. Stumpf (56 Wis. (1882), 
 
 50), 245. 
 Earlol Bristol v. Willsmore (1 Barn. 
 
 & C. 514), 327. 
 
 Earle v. De Witt (6 Allen, 520), 273. 
 
 V. Peale, (1 Salk. 386), 17. 
 
 u. Reed (10 Met. 387), 17. 
 
 Early 1). Owens (68 Ala. 171), 174. 
 
 Eastbrook v. Scott (3 Ves. 456), 
 
 301. 
 Easter v. Allen (8 Allen, 7), 327. 
 East India Co. v. Hensley (lEsp. 
 
 Ill), 272. 
 Eastman v. Avery (23 Me. 248), 
 223. 
 1). Batchelder (36 N. H. 141), 
 
 245. 
 V. Foster (8 Met. 19), 234. 
 V. Porter (14 Wis. 39), 144. 
 V. Water Power Co. (24 Minn. 
 487), 238. 
 East Tenn., ^c, R. R. Co. v. Hale 
 
 (85 Tenn. 69), 333. 
 Eaton V. Avery (83 N. Y. 31), 168. 
 V. Cook (32 Vt. 58), 125, 128, 
 
 134. 
 V. Green (22 Pick. 626), 204, 
 
 224. 
 V. Eeagen (114 Mass. 433), 306. 
 fi02 
 
 Eaton V. Wells (22 Hun, 123), 139. 
 
 V. Whiting (3 Pick. 484), 221. 
 
 V. Worthing (5 Serg. & R. 
 
 130), 311. 
 
 Eastman v. Every (23 Me. 248), 4. 
 
 Eaves v. Estes (10 Kan. 314), 230. 
 
 Ebberle v. Mayer (51 Ind. 235), 
 
 233. 
 Eberle v. Mehrbach (56 N. Y. 682), 
 
 306, 308. 
 Eckenrode v. Chemical Co. (65 
 
 Ind. 51), 333. 
 Eclipse Windmill Co. v. Thornton 
 
 f46 Iowa 181), 142. 
 Edan v. Dudfleld (1 Q. B. 306), 69. 
 Eddy V. Caldwell (7 Minn. 225), 
 283. 
 V. Capron (4 R. I. 394), 300. 
 V. Clement (38 Vt. 486), 218. 
 Eden v. Blake (13 M. & W. 614), 
 
 196. 
 Edgar v. Boies (11 Serg. & R. 445), 
 150. 
 V. Canadian Oil Co. (23 Up. 
 Can. Q. B. 333), 189. 
 Edgecombe v. Rodd (6 East, 294), 
 
 296. 
 Edgell V. Hart (4 N. Y. 2), 84o. 
 V. Hart (9N. Y. 213), 233. 
 Edgerly v. Bush (81 N. Y. 199), 
 239. 
 V. Shaw (5 Foster (N. H.), 
 614), 19. 
 Edgerton v. Hodge (41 Vt. 676), 71. 
 V. Michels (Wis.) (34 Am. Rep. 
 260), 185. 
 EdickiJ. Grim (10 Barb. 445), 186. 
 Eadie v. Ash^augh (43 Iowa, 519), 
 
 183. 
 Edington v. Harper (3 J. J. Marsh. 
 
 353), 204, 227. 
 Edmunds v. Digges (1 Gratt, 359), 
 
 149. 
 Edsall w. Hamburg M. Co. (1 Halst. 
 Ch. 658), 169. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Edward v. Brewer (2 M. & W. 375), 
 
 128. 
 Edwards' Appeal (106 Pa. St. 
 
 103), 9. 
 Edwards o. Cottrell (43 Iowa, 194), 
 1, 250. 
 V. Davenport (20 Fed. Rep. 
 756; s. 0. 4 McCrary, 34), 
 21, 22. 
 V. Diotson (66 Tex. (1886) 
 2613) 2 S. W. Rep. 718), 
 84a. 
 V. Elliot (36 N. J. L. 449), 210. 
 V. Grand Trunk Railway (48 
 Me. 379; 54 Me. 105), 
 56, 58, 69. 
 V. Goldsmith (16 Pa. St. 272), 
 V. Harben (2 T. R. 587), 84a. 
 V. Hart (66 111. 71), 113. 
 ». Pope (4 111.473), 252. 
 V. Tipton (77 N. C. 222), 258. 
 V. Talialero (34 Mich. 13), 263. 
 o. Trulock (37 Iowa, 244), 144. 
 V. Stinson (59 6a. 443), 174. 
 Egerton v. Furzman (Ry. & M. 
 
 213), 301. 
 Edgerton v. "Wolf (6 Gray, 452), 
 
 18. 
 Eggleston V. Wagner (46 Mich. 
 
 610), 34. 
 Eichelberger v. McCauley (6 H. & 
 
 J. 213), 58. 
 Eichholz V. Bannister (17 C. B. (n. 
 
 s.) 708), 184, 185. 
 Eighmie v. Taylor (98 N. Y. 288), 
 
 196. 
 Elland «. Radford (7 Ala. 724), 224. 
 Eland v. Eland (4Myl. & Cr. 427), 
 
 277. 
 Elder v. Miller (60 Me. 118), 233. 
 
 V. Rouse (16 Wend. 218), 316. 
 Eldred v. Oconto (33 Wis. 133), 
 
 824. 
 Eldridge v- Benson (7 Gush. 483) , 6. 
 V. Invoe (2 Blss. 362), 240. 
 
 Eldridge v. Phillipson (68 Miss. 
 270), 176. 
 V. Wadleigh (3 Pairf. 372), 
 
 186. 
 V. Walker (60 111. 230), 270. 
 Elfe V. Godsden (2 Rich. (S. C.) 
 373), 76, 286. 
 V. Gadsden (2 Rich. 373), 286. 
 Elgee V. Cotton Cases (22 Wall, 
 
 187), 83, 87, 205. 
 Elkin «. People (3 Scam. 207), 258. 
 Ellen ». Topp (6 Ex. 424), 197. 
 EUenhan v. Magniac (6 Ex. 670), 
 
 85. 
 EUershaw v. Magniac (6 Exch. 570) 
 
 85, 95. 
 EUett V. Butt (1 Woods, 214), 246. 
 V. Paxson (2 Watts & S. 418), 
 259. 
 Ellington v. Charleston (61 Ala. 
 
 166), 222, 241. 
 Elliott V. Bradley (23 Vt. 217), 89. 
 V. Edwards (35 N. J. L. 265; 
 
 36N. J. L. 449),87. 
 V. Ince (7 De G. M. G. 478), 
 
 22. 
 V. Maxwell (8 Ired. Eq. 246), 
 
 204. 
 V. Pybus (10 Bing. 612), 89. 
 V. Stoddard (98 Mass. 146), 
 
 174. 
 V. Thomas (3 M. & W. 186), 
 
 70, 213. 
 V. Turner (13 Sim. Ch. 485), 
 
 219. 
 V. Von Glehn (10 C. B. (n. s.) 
 844), 197. 
 Ellis V. Andrews (66 N. Y. 83), 
 172. 
 V. Dead man (4 Bibb, 467), 75 
 V. Hammond (67 Ga. 179), 293, 
 
 308. 
 V. Martin (60 Ala. 394), 233. 
 V. Messervie (11 Paige Ch. 
 467; 2 Denio 640), 245. 
 fi03 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Ellis V. Mortimer (1 Bos. & P. N. 
 R. 257), 213. 
 V. Thompson (3 M. & W. 445), 
 98, 100. 
 Ellison V. Bernsteiner (60 How. Pr. 
 145), 170, 171. 
 V. Daniels (U N. H. 280), 221. 
 V. Kerr (86 111. 427), 282. 
 V. Jones (4 Ired. 48), 325. 
 Elmore v, Kingscote (5 B. & C. 
 683), 76. 
 V. Simon (67 Ala. 626), 231. 
 V. Stone (1 Taunt. 458), 69. 
 Ely V. James (123 Mass. 36), 144. 
 V. Ormsby (12 Barb. 570), 71. 
 Emanuel College v. Evans (1 Bep. 
 
 in Ch. 18) 221. 
 Emerine i>. O'Brien (36 Ohio St. 
 
 491), 144, 149. 
 Emerson v. Brigham (10 Mass. 
 202), 185. 
 V. European, etc., K. E. Co., 
 
 67 Me. 387), 51. 
 V. Graff (72 Pa. St. 358), 38. 
 V. White (10 Gray, 351), 139. 
 Emmersou v. Heelis (2 Taunt. 38, 
 
 209), 61, 78. 
 Emery v. Hersey (4 Greenl. 407) , 
 271. 
 V. Irving Nat. Bank (25 Ohio 
 
 St. 255), 85, 323. 
 V. Owings (7 Gill, 488), 234. 
 Emma Silver Mfg. Co. v. Lewis (h. 
 B. 4 C. P. D. 396), 159. 
 Emmerton v. Mathews (7 H. & N. 
 
 586), 191. 
 Emmons v. Dowe (2 Wis. 322), 
 245. 
 V. Hawn (75 Ind. 356), 250. 
 Elphick !). Barner (5 C. P. Biv. 
 321), 6. 
 V. Barner (L. B. 6 C. P. D. 
 326), 213. 
 Blsass V, Moore's Hill Inst. (77 
 Ind. 72), 168. 
 604 
 
 Else ?). Barnard (28 Beav. 228), 
 
 285. 
 
 V. Else (L. B. 13 Eq. 196), 284. 
 
 Elson V. Banier (66 Miss. 394), 239. 
 
 17. Barrier (56 Miss. 394), 241. 
 
 Elston V, Jasper (45 Tex. 409), 21, 
 
 24. 
 Eltham v. Kingsham (1 B. & Aid. 
 
 683), 301. 
 Elwell V, Chamberlain (2 Bosw. 
 
 230), 272. 
 V. Chamberlain (31 N. Y; 619), 
 
 173, 268. 
 Elworthy v. Bird (2 Sim, & Stu. 
 
 372), 296. 
 
 Ely H. Carnley (19 N. Y. 496), 239. 
 
 V. Ehle (3 Comst. 506), 324. 
 
 V. Hair (16 B. Mon. 203), 175. 
 
 V. Hanford (65 HI. 267), 270. 
 
 Empire Trans. Co. v. Steele (70 
 
 Pa. St. 190), 321. 
 Ender v. Scott (11 111. 85), 193. 
 Enders v. Williams (1 Met. (Ky.) 
 
 252), 84a. 
 Engle V. Greenbaum (4 Th. & C. 
 
 426), 269. 
 Enlor V. Miles (20 Miss. 147), 265. 
 D. Miller (13 Smed. & M. 147), 
 
 265. 
 England v. Downs (2 Beav. 522) , 
 
 233. 
 Enlow tt. Klein (79 Pa. St. 488), 5, 
 
 9, 203, 206. 
 Ennis v. Walker (3 Blackf. 472), 
 
 286. 
 Enochs V. Miller (60 Miss. 19), 
 
 260. 
 Enos V. Sutherland (11 Mich. 538), 
 
 227. 
 Entz V. Mills (1 McMuU. 464, 553), 
 
 78, 286. 
 Episcopal Church o. Wiley (2 Hill 
 
 (S. C. ) Ch. 584), 286. 
 Epperson v. Nugent (67 Miss. 45) , 
 
 17. 
 
TABLE OF CASES CITED. 
 
 Equitable Gas Light Co. v. Bait. 
 Coal Tar, &o., Co. (65 
 Md. 73), 333, 337. 
 Erb V. Cole (31 Ark. 554), 174. 
 Erie Dispatch Co. v. St. Louis Co. 
 
 . (6Mo. App. 172), 823. 
 Erie E. R. Co. v. Union Exp. Co. 
 
 (35 N. J. L. 240), 292. 
 Erlanger v. New Sombrero Phos- 
 phate Co. (3 App. Cas. 
 1218), 159. 
 Ernest v. StoUer (5 Dill. 438), 273. 
 Erskine v, Adeave (L. E. 8 Ch. App. 
 756), 196. 
 V. Plumraer (7 Greenl. 447), 69. 
 c. Plummer (7 Me. 447), 231. 
 Brwin v. Maxwell (8 Murphy, 241), 
 
 193. 
 Bshleman v. Lewis (49 Pa. St. 410), 
 
 270. 
 Eskridge v. Glover (5 Stew. & P. 
 
 264), 4C. 
 Essex V. Atkins (14 Ves. 542), 30. 
 Essex Co. V. Pacific Mills (14 Gray, 
 
 389), 335. 
 Esterly v. Purdy (50 How. Pr. 350), 
 
 234. 
 Esteves v. Purd (66 N. Y. 446), 268. 
 Eubanks v. Peat (2 Baily, 497), 19. 
 Eureka Co. v. Edwards (71 Ala. 
 
 218), 18, 20. 
 Evans v. Ashley (8 Mo. 183), 258, 
 286. 
 V. Darlington (5 Blackl; 320), 
 
 228. 
 V. Evans' Exrs. (1 Desaus. 515), 
 
 277. 
 V. Governor (18 Ala. 659), 264. 
 V. Graham (50 Wis. 450), 241. 
 V. Jones (5 M. & M. 77'), 301. 
 V. Merriken (8 Gill & J. 39), 
 
 221, 231, 247. 
 V. Potter (2 Gall. 12), 273. 
 V. Eobbenson (92 Mo. 192), 
 260. 
 
 References are to Sections. 
 
 Evans v. Eoberts (5 B. & C. 836), 
 
 59. 
 V. Scott (89 Pa. St. 136), 84a, 
 
 106. 
 V. Wain (71 Pa. St. 256), 272. 
 V. Winston (74 AJa. 349), 175. 
 Evansville, etc., E. R. Co. v. Erwin 
 (84Ind. 457),207, 310. 
 V. Erwin (85 Ind. 457), 184. 
 Everett v. Collins (2 Camp. 515), 
 145. 
 V. Hall (67 Me. 497), 85, 210, 
 
 230, 324. 
 
 V. Whitney (£5 Iowa, 146), 287. 
 
 Bverhart ». Packett (73 Ind. 409), 
 
 292. 
 
 V. Searle (71 Pa. St. 356), 272. 
 
 Bveringham v. Meighan (55 Wis. 
 
 854), 302. 
 Bverman v. Eobb (52 Miss. 653), 
 
 231. 
 Everson v. Carpenter (17 Wend. 
 
 419), 19. 
 Evingtont!. Smith (66 Ala. 398), 222. 
 Ewer V. Corbett (2 P. Wms. 149), 
 
 277. 
 Ewing V. French (1 Blackf. 354), 6. 
 
 V. Smith (3 Desa. 417), 30. 
 Exhaust Ventilator Co. v. Chicago 
 E. E. Co. (66 Wis. 218), 
 213. 
 Ezell V. Franklin (2 Sneed, 236), 
 183, 269. 
 
 F. 
 
 Fairbanks v. Bloomfleld (5 Duer, 
 4,34), 234. 
 V. Eureka Co. (67 Ala. 109), 
 325. 
 Fairbank v. Phelps (22 Pick. 532), 
 
 325. 
 Fairchildc. Holly (10 Conn. 176), 
 152. 
 V. Rogers (32 Me. 269), 336. 
 
 (;o5 
 
TABLE OP CASES CITED. 
 
 References are to Sections. 
 
 Fairfax v. Hopkins (2 Cranch C. C. 
 
 134), 285. 
 Fairfield v. Madison Mfg. Co. (38 
 
 Wis. 626), 197, 213. 
 Fairfield Bridge Co. v. Nye (60 Me. 
 
 372), 84a. 
 Fairbrothers d. Simmons (5 B. & 
 
 Aid. 333), 272. 
 Fairman's Appeal (30 Conn. 205), 
 
 277. 
 Fairmans. Bavin (29111.75), 270. 
 Fairthorne v. Blaquire (6 Maule & 
 
 S. 73), 29. 
 Falk, Ex parte (14 Ch. D. 446; C. 
 
 A. 455), 136. 
 Fallows V. Taylor (7 T. K. 475), 
 
 296. 
 Falls V. Gaither (9 Port. 605), 33, 
 
 142. 
 Falmouth v. Thomas (1 C. & M. 
 
 105), 59. 
 Fambro v. Gnatt (12 Ala. 298), 259. 
 Fame Ins. Co. v. Mann (4 111. App. 
 
 485), 272. 
 Farebrother v. Simmons (5 B. & 
 
 Aid. 333), 78. 
 Fareira v. Gabell (89 Pa. St. 89), 
 
 272,302. 
 • Farina v. Home (16 M. & W. 119), 
 
 69. 
 Farley v. Bates (2 H. & C. 200; 33 
 
 L. J. Ex. 43), 86. 
 Farlow v. Ellis (15 Gray, 229), 85, 
 
 86, 93. 
 
 Farmer v. Gray (16 Neb. 401), 70. 
 
 V. Gray (20 Neb. 403), 197. 
 
 V. Grose (42 Cal. 169), 228. 
 
 V. Lewis (1 Bush, 66), 252. 
 
 Farmer's Bank v. Iglehart (6 Gill, 
 
 60), 319. 
 Farmers v. Wasson (48 Iowa, 338), 
 
 319. 
 Farmers Loan & Trust Co. v. Com- 
 mercial Bank (11 Wis. 
 
 207), 232. 
 
 606 
 
 Farmers', &c., Bank v. Logan (74 N. 
 Y. 568), 85. 
 V. Lang (87 N. Y. 209), 222. 
 Farmers Loan & Trust Co. v. Hen- 
 drickson (25 Barb. 484), 
 240. 
 V. Long Beach Imp. Co. 
 ^27 Hun, 89), 231, 232. 
 Farmlee v. Adolph (28 Ohio St. 10), 
 
 163. 
 Farnam v. Brooks (9 Pick. 212), 21. 
 Farnbo v. Gnatt (12 Ala. 265), 277. 
 Farley v. Lincoln (51 N. H. 577), 
 
 329. 
 Faris v. Ware (60 Me. 482), 163. 
 Farish v. McKay (5 Up. Can. Q. B. 
 
 461), 174. 
 Farlow v. Ellis (15 Gray, 229), 217- 
 Farnsworth v. Hemmer (1 Allen, 
 
 494), 272. 
 Farnum v. Brooks (9 Pick. 212), 21. 
 Farrant v. Thompson (5 Bard. & 
 
 Aid. 826), 314. 
 Farrar v. Davis (53 Vt. 597), 296. 
 
 V. Smith (64 Me. 74), 84a. 
 Farrell v. Bean (10 Md. 217), 228. 
 
 V. Corbett (4 Hun, 128), 163. 
 Farrows v. Andrews (69 Ala. 96), 
 
 190. 
 Farr v. Simms (Rich. Eq. 122), 169. 
 B. Sims (Rich. Eq. 122), 260. 
 V. Stephens (26 Vt. 299), 144. 
 V. Sumner (12 Vt. 28), 20. 
 Farwell v. Grier (38 Iowa, 83), 144. 
 17. Jones (63 Iowa, 316), 175. 
 V. Mather (10 Alien, 322), 75. 
 V. Meyer (35 111. 40), 268. 
 V. Rogers (4 Cush. 460), 99. 
 Fassett v. Smith (23 N. Y. 252), 
 327. 
 V. Traler (20 Ohio, 540), 175. 
 Fatmann v. Thompson (2 Disney, 
 
 482), 192, 194. 
 Faulkner v. Heberd (26 Vt. 452), 
 40. 
 
TABLE OF CASES CITED. 
 
 References ar 
 
 Faunce v. Estate (76 Pa. St. 220), 
 
 277. 
 Fauntleroy v, Wilcox (80 111. 477), 
 
 193. 
 Fawcett v. Osborn (32 111. 425), 310. 
 V. Osborn (32 III. 411), 186, 
 
 811, 312. 
 Fay V. Cheney (14 Pick. 399), 221. 
 V. Kichmond (43 Vt. 25), 269. 
 V. Wheeler (44 Vt. 292), 70. 
 Faye ii. Bank of lUlDois (11 111. 
 
 357), 234. 
 Feamster v. Withrow (12 W. Va. 
 
 611), 144. 
 V. Withrow (12 W. Va. 651), 
 
 146. 
 Fears v. Brooks (12 Ga. 195), 30. 
 Feger v. Keefer (6 Watts, 297), 
 
 314. 
 Feise v. Wray (3 East, 93), 128. 
 Fejavary v. Broesch (62 Iowa, 88), 
 
 231, 232. 
 Feldman «. Beier (78 N. Y. 293), 
 
 144. 
 V. Gamble (26 N. J. Eq. 494), 
 
 152. 
 Fell V. MuUer (78 Ind. 507), 333. 
 Fellows V. Lord Gwyder (1 Russ. & 
 
 M. 83), 162. 
 «. Steamer Powell (16 Ala. Ann. 
 
 316), 323. 
 ■e. Faun (9 Ala. 999), 30. 
 Felthouse v. Bindley (11 C. B. (n. 
 
 s.) 769; 31 L.J. C. P. 
 
 204), 34. 
 Fenn v. Bittleston (21 L. J. (n. s.^ 
 
 Ex. 41), 241. 
 V. Harrison (3 T. R. 759), 
 
 146. 
 Fenner v. Tucker (6 R. D. 551), 
 
 260, 169. 
 Fenno v. Weston (31 Vt. 345), 33. 
 Feuton v. Braden (2 Cranch C. C. 
 
 650), 47. 
 V. Clark (11 Vt. 563), 218. 
 
 e to Sections. 
 
 Ferguson v. Bell (17 Mo. 347), 18. 
 V. Carrington {9 B. & C. 69), 
 
 170. 
 V. Clifford (37 N. H. 86), 93. 
 V. Clifford (37 N. H. 86), 239, 
 
 241. 
 V. Northern Bank (4 Bush, 655), 
 
 88. 
 V. Spear (66 Me. 277), 175. 
 V. Thomas (26 Me. 499), 241. 
 V. Union Furnace Co. (9 Wend. 
 345), 225. 
 Ferrier v. Storer (63 Iowa, 484), 39. 
 Ferris v. Adams (23 Vt. 136), 298, 
 300. 
 V. Comstock (33 Conn. 513), 
 336. 
 Ferress v. Robins (2 C. M. & R. 
 
 152), 28^ 
 Fessler v. Love (48 Pa. St. 407), 
 
 336. 
 Petroww. Wideman (40 Ind. 148), 
 
 18. 
 Fettiplace v. Gorge (1 Ves. 46),, 
 
 30. 
 Feust». Rowell (62 Mo. 524), 239, 
 
 240. 
 Field V. Baker (12 Blatchf. 438), 
 238. 
 V. Holland (6 Cranch, 8), 152. 
 V. Leldau (6 II. & N. 617; 30 L. 
 J. Ex. 168; 1 Smith Lead 
 Cas. 694), 120. 
 V. Moore (Hill & Denio, 418), 
 
 88, 
 V. Runk (2 N. J. 625), 96. 
 V. Schieffelin (7 Johns. Ch. 
 
 150), 253, 274. 
 
 V. Simco (2 Eng. 269), 84a. 
 
 V. Stearns (42 Vt. 106), 329. 
 
 Pifield V. Ehnes (26 Mich. 48), 85, 
 
 206, 325. 
 Figgs ». Hill (61 Iowa, 430), 193. 
 Fikes V. Manchester (43 111. 379), 
 221,248. 
 
 607 
 
TABLE OF CASES CITED. 
 
 Beferences are to Sections. 
 
 Fllkins V. Whyland (24 N. Y. 338), 
 
 196. 
 Filley v. Pope (115 U. S. 213), 197, 
 
 208. 
 Filson V. Hives (5 Pa. St. 452), 292, 
 
 300. 
 Finch V. Mansfield (97 Mass. 89), 
 
 fe5, 95, 291. 
 Findley v. Cooley (I Blackf. 262), 
 
 174. 
 Fine/?;. Hornsby (2 Mo. App. 61), 
 
 69. 
 Fineman v. Sachs (33 Kan. 621), 
 
 294. 
 Fink V. Branch (16 Conn. 260), 234. 
 
 «. Roe (70Cal.296), 260. 
 Finley v. King's Lessee (3 Pet. 340), 
 200. 
 ■a. Quirk (9 Minn. 194), 194, 
 308. 
 Finn v. Clark (10 Allen, 484; s. c. 
 12 Allen, 522), 89, 95. 
 V. Donahue (35 Conn. 216), 
 293. 
 Finney v. Apgar (31 N. J. L. 270), 
 
 56, 68. 
 First Nat. Bank v. Boyce (78 Ky. 
 42), 316. 
 V. Bayley (115 Mass. 230), 85. 
 V. Crocker (111 Mass. 163), 85, 
 
 95. 
 V. Dearborn (115 Mass. 219), 
 
 89. 
 V. Elmore (52 Iowa, 541), 230. 
 V. Grindstaf£(46Ind. 158), 196. 
 V. Kelly (57 N. Y. 34), 321. 
 V. Mass., &c., Co. (123 Mass. 
 
 330), 185. 
 V. McAndrews (5 Mont. 328; 
 
 51 Am. Bep. 51), 105. 
 V. McManigle (69 Pa. St. 166), 
 
 164. 
 V. Nelson (38 Ga. 391), 273. 
 First Bank of Toledo v. Shaw (61 
 N. Y. 299), 317. 
 608 
 
 First Nat. Bank v. Tumbull (32 
 Gratt. 695), 232. 
 ». Yocum (11 Neb. 328), 158, 
 162, 163. 
 Firestone D.Firestone (49 Ala. 128), 
 
 270. 
 Fischel v. Scott (15 C. B. 69), 214. 
 Tishv. Benedict (74 N. Y. 613), 203. 
 V. Cleland (33 111. 238), 158. 
 V. Payne (14 N. Y. 586), 170. • 
 V. Payne (7 Hun, 586; s. c. 14 
 
 N. Y. 68G),171. 
 V. Tank (12 Wis. 276), 190. 
 Fishback v. Miller (15 Nev. 428), 
 161. 
 V. VanDusen (33 Minn. Ill), 
 
 6, 80. 
 V. Van Dusen (33 Minn. Ill), 
 200, 217. 
 Fishell V. Winans (38 Barb. 228), 
 
 335. 
 Fisher v. Abeel (66 Barb. 381), 196. 
 V. Budlong (10 K. I. 527), 167. 
 V. Bodlong (10 R. I. 525), 171. 
 V. Brown (104 Mass. 259), 271. 
 V. Friedman (47 Iowa, 443), 
 
 243. 
 V. Hersey (17 Hun, 370), 165. 
 V. Krutz (9 Kan. 501), 270. 
 V. Kuhn (54 Miss. 480), 76. 
 V. Lord (63 N. H. 514), 294. 
 V. Mellen (103 Mass. 509), 160, 
 
 162. 
 V. Mowbray (8 East, 330), 18. 
 V. Otis (3 Chand. 83), 234. 
 V. Pollard (2 Head, 314), 195. 
 V. Samuda (1 Camp. 190), 163. 
 Fisher's Appeal (34 Pa. St. 29), 270. 
 Fitch ». Burk (38 Vt. 689), 83. 
 
 V. Humphrey(l Den. 163), 239. 
 Fitz V. Bynum (54 Cal. 469), 163. 
 Fitzgerald v. Reed (9 Smed. & M. 
 
 94), 23. 
 Fitzhugh V. Wilcox (12 Barb. 236), 
 21. 
 
TABLE OF CASES CITED. 
 
 Beterences are to Sections. 
 
 Fitzmaurice o. Bayley (9 H. L. C. 
 
 79), 75, 76. 
 Ktzpatrick 1). Faiu (3 Coldw. 16), 
 
 88. 
 Ktzsimmons v. Joslin (21 Vt. 129), 
 
 168, 173, 329. 
 Fitzsimmons v. Woodruff (1 N. Y. 
 
 S. C. 3), 58. 
 Flags "• Mann (14 Pick. 467), 204. 
 V. Mann (.14 Pick. 483), 224. 
 ». Pierce (28 N. H. 348), 238. 
 ' Flake v. Nuse (51 Tex. 98), 140. 
 Flanagan v. Demarest (3 Roberts, 
 
 173), 214. 
 Flangan v. Alexander (60 Mo. 51), 
 
 269. 
 Flanders v. Barstow (18 Me. 357), 
 221, 241, 246, 247, 248. 
 V. Chamberlain (24 Mich. 305), 
 
 221,241, 246,247, 248. 
 V. Flanders (23 Ga. 249), 277. 
 V. Putney (28 N. H. 358), 332. 
 V. Putney (58 N. H. 358), 34. 
 V. Thomas (12 Wis. 410), 221, 
 247, 248. 
 Flatt V. Osborne (32 Minn. 98), 183. 
 Feieck a. Warner (25 Kan. 492), 
 
 206, 210, 325. 
 Flemings. Gilbert (3 Johns, 128), 
 218. 
 V. Hutchinson (36 Iowa, 519), 
 
 169. 
 V. Townsend (6 Ga. 103), 84a. 
 Flenlken v. Scruggs (15 S. C. 88), 
 
 243. 
 Fletcher v. Cole (23 Vt. 114), 210. 
 Flexner v. Dickerson (73 Ala. 318),, 
 
 18. 
 Fletcher v. Drath (66 Mo. 126), 329. 
 V. Ingram (46 Wis. 201), 83. 
 ». Morey (2 Story, 556), 240. 
 ■u. Powers (131 Mass. 333), 
 
 233. 
 V. Willard (U Pick. 464), 196. 
 D. Young (69 Ga. 591), 195. 
 
 Flnscher v. Dignon (53 Iowa, 288), 
 
 175. 
 Fleeman v. McEean (25 Barb. 474), 
 
 93. 
 V. McKean (25 Barb. 474), 217. 
 Fleet V. Marton (L. R. 7 Q. B. 126), 
 
 73. 
 Flint V. Corbitt (6 Daly, 439), 58. 
 V. Gibson (106 Mass. 391), 212. 
 Flight V. Leman (42 B. 883), 304. 
 Flint V. Lyon (4 Cal. 17), 189. 
 
 V. Sheldon (13 Mass. 443), 227. 
 Flick V. Weatherbee (20 Wis. 392), 
 
 336. 
 Flint V. Woodin (9 Hare, 618), 165. 
 Flintham's Appeal (11 Serg. & K. 
 
 16), 277. 
 Flintoff V. Elmore (18 Up. Can. C. 
 
 P. 274), 78. 
 Flory V. Denny (7 Exch. 581), 225. 
 Floyd V. Morrow (26 Ala. 353), 
 
 232. 
 Florence v. Richardson (2 La. An. 
 
 663), 281. 
 Florence Sew. M. Co. v. Warfood 
 
 (1 Sweeney, 433), 273. 
 Floyd V. Browne (1 Rawle, 121), 43. 
 Fluke V. Fletcher (18 C. B. N. S. 
 
 403; 34 L.J. C. P. 146), 
 
 85. 
 Flynn v. Allen (57 Pa. St. 482), 185. 
 V. Hathaway (65 111. 462), 239. 
 Foard D. McComb (12 Bush. 723), 
 
 160. 
 Foggart V. Blackwell (4 Ired. 238), 
 
 193. 
 Fogg V. Griffln (2 Allen, 1), 173. 
 Fogg V. Sawyer (9 N. H. 365), 149. 
 Foley V. Kane (53 Iowa, 64), 262. 
 Follanbees v. Adams (86 111. 13), 
 
 333. 
 
 FoUett V. Heath (15 Wis. 601), 234. 
 
 Follette V. Steele (16 Vt. 30), 146. 
 
 Folsom V. Fowler (15 Ark. 280) 224. 
 
 V. Garner (15 Mo. 494), 21. 
 
 39 609 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Fonde ». Gross (15Wend. 628), 84a. 
 X'ontier Bank v. Morse (22 Me. 
 
 88), 149. 
 Foot V. Bentley (44 N. Y. 166), 180, 
 
 196. 
 Foot, In re (11 Blatchf. 630), 131. 
 Foot V. Marsh (51 N. Y. 288), 88. 
 Foos V. Sabine (85 111. 665), 333. 
 Forbert v. Hayden (11 Iowa, 435), 
 
 240. 
 Forbes v. Marsh (16 Conn. 384), 86, 
 326. 
 V. Parker (16 Pick. 462), 238, 
 240. 
 Forcheimer v. Stewart (65 Iowa, 
 594; 54 Am. Bep. 30) , 95, 
 272. 
 V. Stewart (65 Iowa, 504 593), 
 189, 193. 
 Ford V. Cobb (20 N. Y. 344), 230. 
 B.Cotesworth (L. K. 7Q. B.127), 
 
 100. 
 V. Johnston (7 Hun, 663), 174. 
 ». Mitchell (15 Wis. 308), 144. 
 V. Phillips (1 Pick. 202), 19. 
 V. Ramsom (39 How. Pr. 429 ; 
 s. c. 8 Abb. Pr. (n. s.) 
 416), 222, 241. 
 V. Sutherlin (2 Mon. 440), 233. 
 V. Williams (3 B. Mon. 560), 
 
 176. 
 ■a. Yates (2 M. & G. 549), 120, 
 Forden v. Durfee (39 Miss. 323;, 
 
 194. 
 
 Fordyce v. Neal (40 Mich. 706), 233. 
 
 Fore V. Hibbard (63 Ala. 410), 233. 
 
 V. McKenzie (58 Ala. 115), 185. 
 
 Foreman v. Ahl (55 Pa. St. 325), 
 
 292, 293, 308. 
 Fores v. Johnes (4 Bsp. 97), 305. 
 Forest v. Nelson (108 Pa. St. 481), 
 9, 325. 
 V. Tinkham (29 111. 141), 240. 
 Forkner v. Stewart (6 Gratt. 197), 
 84a. 
 610 
 
 Formau v. Hunt (3 Dana, 614', 621), 
 256. 
 V. Proctor (9 B. Mon, 124), 230, 
 231. 
 Forrest v. Hamilton (98 Ind. 91), 
 206. 
 V. Nelson (19 Bep. (Pa.) 380), 
 203. 
 Forrestier v. Boardman (1 Story, 
 
 43), 273. 
 Forsteri). Howland (7 H. & N. 107), 
 
 75. 
 Forsyth v. Jervis (1 Stark, 437), 12. 
 Forsythe v. Ellis (4 J. J. Marsh. 
 298), 185, 283,311. 
 V. Dickson (1 Grant (Pa.), 26), 
 210. 
 Fortman v. Goepper (14 Ohio St. 
 
 658), 230. 
 Fosdicku. Shall (99 U. S. 250;, 206. 
 V. Schall (99 D. S. 235), 82, 325. 
 V. Van Huson (21 Mich. 567), 
 140. 
 Foster v Ames (1 Low. 313), 247. 
 V. CaldweU (18 Vt. 176), 19.S. 
 V. Charles (6Bing.396; 7 Bing. 
 
 105), 162. 
 V. Essex Bank (5 Gray, 373), 
 
 319. 
 V. Gillespie (68 Mo. 643), 240. 
 ■V. Hackley (2 N. Bank Rep. 
 
 406), 240. 
 V. Hall (12 Pick. 89), 174. 
 V. Hill (36 N. H. 526), 144. 
 V. Mabe (4 Ala. 402), 69, 261. 
 V. McGraw (64 Pa. St. 664), 162. 
 V. McGregor (11 Vt. 695), 174, 
 
 184a. 
 V. Perkins (42 Me. 168), 235, 
 
 237. 
 V. Pettibone (7 N. Y. 433), 6. 
 V Bochwell (104 Mass. 170), 
 
 95. 
 V. Ropes (111 Mass. 10), 87, 
 205. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Foster v. Smith (18 C. B. 156), 35. 
 V. State (45 Ark. 361), 272. 
 V. Thomas (21 Conn. 285), 
 
 263. 
 V. Trampton (6 B. «fe C. 107), 
 
 70. 
 V. Waller (76 111. 464), 273. 
 Eoulck V. Eokert (61 111. 448), 163. 
 Fountain ». Bryce ' (12 Rich. Eq. 
 
 234), 224. 
 Fourth Nat. Bank v. St. Louis Com- 
 press Co. (11 Mo. App. 
 333), 320. 
 Fonville v. Casey (1 Murphy (N. 
 
 C), 389), 52. 
 Fowke V. Bowie (4 Harr. & J. 566), 
 
 152. 
 Fowle V. Leavitt (23 N. H. 360), 
 
 165, 288. 
 Fowler v. Hoffman (31 Mich. 215), 
 234. 
 V. HoUine (L. K. 72 B. D. 616), 
 
 329. 
 V. Hunt (48 Wis. 345), 233. 
 V. Ludwig (34 Me. 455), 144, 
 
 146. 
 V. Merrill (11 How. 375), 231! 
 V. Stoneum (11 Tex. 478), 222, 
 
 224. 
 C.Burns (12 Barb. 677), 221. 
 a. Harding (7 Cash. 516), 336. 
 V. Kitton (19 111. 521), 241. 
 V. Prichett (34 N. J. L. 13), 43. 
 V. Macbeth (2 Cox, 322), 163. 
 V. Mackreth (2 Bro. Ch. 420), 
 
 171. 
 „. Turner (1 111. App. 153), 36. 
 V. Webster (46 Mo. 181), 170. 
 Frageno V. Long (4 B. & 0. 219), 
 87, 89. 
 V. Long (4 Barn. & C. 219), 95, 
 122. 
 Fraley v. Bispham (10 Pa. St. 
 
 188, 193. 
 Francis, The (2 Gall. 391), 89. 
 
 Francis v. Felmit (4 Dev. & Bat. 
 
 498), 18. 
 
 Francis v. Eankin (84 111. 169), 174. 
 
 Franks, Ex parte (7 Bing. 762), 29. 
 
 Frank v. Hoey (128 Mass. 263), 84, 
 
 85, 95, 291. 
 
 V. Jenkins (22 Ohio St.597), 273. 
 
 ■o. Lilienfleld (33 Gratt. 349), 
 
 30. 
 V. Miller (38 Md. 461), 75. 
 V. Miner (50 111. 455), 84a. 
 V. Miner (50 111. 444), 238, 239, 
 240, 241. 
 Frankhauser v. Ellett (22 Kan. 187), 
 
 84a. 
 Frankland v. Moulton (6 Wis. 1), 
 
 230. 
 Franklin v. Claflin (49 Md. 24), 
 174. 
 V. Globe, &c., Ins. Co. (52 Mo. 
 
 461), 269. 
 V. Gumraersell (11 Mo. App. 
 
 306), 84a. 
 V. Meyer (36 Ark. 96), 234. 
 Fraschieris v. Henriqnes (6 Abb. 
 
 Pr. (N. s.) 251), 130. _ 
 Eraser v. Charleston (11 S. C. 486), 
 319. 
 B. Gilbert (11 Hun, 634), 288, 
 
 240. 
 V. Thatcher (49 Tex. 26), 176. 
 Frazer v. Lee (42 Ala. 25), 277. 
 Frazier v. Brownlow (3 Ired. Bq. 
 237), 30. 
 V. Fredericks (24 N. J. L. 162), 
 
 175. 
 V. Harvey (34 Conn. 469), 187. 
 V. Hilliard (2 Strobh. 309), 51, 
 
 87. 
 u. Simmons (139 Mass. 531), 
 94, 104, 333. 
 Freed v. Brown (55 Ind. 310), 21. 
 Freeholders of Middlesex v. 
 Thomas (20 N. J. Bq. 
 39), 144, 145. 
 
 611 
 
TABLE OF CASES CITED. 
 
 Beferences are to Sections. 
 
 Freeman v. Baker (1 Ad. & E. 508), 
 
 167. 
 V. Baldwin (13 Ala. 246), 227, 
 
 228. 
 «. Chute (S Barb. 424), 197. 
 V. East India Co. (5 B. & A. 
 
 621), 276. 
 V. Freeman (17 N. J. Eq. 44), 
 
 248, 249. 
 V. Hartman (45 111. 67), 270. 
 V. Howe (24 How. 450), 255. 
 V. Nichols (16 Mass. 309), 85. 
 V. Nichols (16 Mass. 309), 86 
 
 93, 121. 
 V. Staats (4 Halst. Ch. 814), 
 
 25. 
 V. Underwood (66 Me. 229), 
 
 313, 324. 
 u. Wilson (51 Miss. 329), 204, 
 
 228. 
 Freeport v. Bartol (3 Greenl. 340), 
 
 75. 
 Fregman v. Knecht (78 Pa. St. 141), 
 
 197. 
 Freme v. Wright (4 Madd. 364), 
 
 284. 
 French v. Bums (35 Conn. 359), 
 
 228. 
 French ». Currier (47 N. H. 88), 
 
 277. 
 V. French (8 Ohio, 214), 25. 
 V. Hall (9 N. H. 145), 84a. 
 V. McAndrew (61 Mass 187), 
 
 18. 
 V. Star Cnlon Transportation 
 
 Co. (134 Mass. 288), 137. 
 V. Skead (24 Grant's Ch. (Ont.) 
 
 179), 160. 
 V. Sturdivant (8 Me. 246), 224. 
 V. Sturdivant (8 Greenl. 246), 
 
 227. 
 V. Vining (102 Mass. 132), 
 
 160. 
 V. Vining (102 Mass. 132, 135), 
 
 167, 187. 
 612 
 
 Frenchard v. Werner (18 111. 142), 
 
 234. 
 Frenzel v. Miller (37 Ind. 1), 158. 
 Fretwell v, Troy (18 Kan. 271), 
 
 281. 
 Fricker v. Tomlinson (1 M. & G- 
 
 772), 66. 
 Fridley v. Brown (103 HI. 633), 
 
 152. 
 Frisbee v. Langworthy (11 Wis. 
 
 375.), 241. 
 Frisbie v. Fitzsimmons (3 Hun, 
 
 674), 160. 
 B. Lamed (21 Wend. 460), 144. 
 Fromme v. Jones (13 Iowa, 474), 
 
 240. 
 Froneberger v. Lewis (70 N. C. 
 
 456), 277. 
 Frost V. Blanchard (97 Mass. 155), 
 
 196. 
 V. Hill (3 Wend. 386), 78, 286. 
 V. Knight (L. E. 7 Bxch. Ill;, 
 
 336. 
 M. WUlard (9 Barb. 440), 231, 
 
 232. 
 V. Woodruff (54 111. 156), 87. 
 V. Woodruff (54 111. 155), 205, 
 
 238. 
 Frostburg Mining Co. o. New En- 
 gland Glass Co. (9 Cush. 
 
 115), .65. 
 Frue V. Houghton (6 Col. 318), 
 
 337. 
 Fry V. Mobile Sav. Bank (75 Ala 
 
 473), 88. 
 Frye v. Milligan (10 Ont. 509), 
 
 186. 
 Fugate ^.Hanfort (3Litt.262),74 
 Full V. David (45 Mo. 446), 286. 
 FuUageru. Reville (3 Hun, 600), 163 
 Fuller V. Abrahams (3 B. & B. 116) 
 
 168. 
 V. Acker (1 Hill, 473), 221, 234 
 
 241, 248. 
 V. Bean (32 N. H. 290), 217. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 FuUer v. Bean (34 N. H. 290), 45, 
 46, 83, 87, 88, 205. 
 V. Brown (11 Met. 440), 218. 
 V. Bushwell (34 Vt. 108), 6. 
 V. Duren (36 Ala. 73), 12. 
 V. Hodgden (25 Me. 248), 162. 
 V. Lewis (13 How. Pr. 219), 824. 
 ». Little (7 N. H. 535), 140. 
 V. Loring (42 Me. 488), 255. 
 W.Paige (26 III. 358), 240. 
 V. Parisli (3 Micli. 211), 228. 
 V. Parrish (3 Mich. 211), 246. 
 Fulmore v. Burrows (2 Bicii. Bq. 
 
 96), 84a. 
 Fulton Brothers v. Upper Canada 
 Furniture Co. (9 Ont. 
 App. 211), 36. 
 FurbuBh v. Green (108 Pa. St. 503), 
 
 262. 
 Furlong v. Cox (77 111. 293), 241. 
 V. Palleys (30 Me. 491), 335, 
 336. 
 Furniss v. Sawens (3 Up. Can. Q. 
 
 B. 77), 71. 
 Fydell v. Clarke (1 Esp. 447), 144. 
 
 6. 
 
 Gaar v. Hurd (92 111. 315), 238. 
 Gabarron v. Kreeft (L. E. 10 Ex. 
 
 274), 85, 88. 
 V. Kreeft (h. R. 10 Ex. 474), 
 
 96. 
 Gadberry v. Sheppard (27 Miss. 
 
 203), 218. 
 Gadsden ». Lance (1 McMul. Eq. 
 
 87), 58. 
 Gaff V. Harding (48 111. 148), 240. 
 
 V. Harding (48 111. 150), 245. 
 Gaffelr Trust, In re (1 Macn. & G. 
 
 541. 
 Gage V. Cheesboro (49 Wis. 494), 
 
 176. 
 V. Meyers (Mich. 26 N. W. 
 
 Rep. 470)", 332. 
 
 Gage V. Morse (12 Allen 410), 322. 
 B. Whittier (17 N. H. 312), 243. 
 Gaines v. Allen (58 Mo. 537), 270 
 V. De la Croix (6 Wall. 719), 
 
 269, 297. 
 V. McKinley (1 Ala. (u. s.) 
 446), 183, 269. 
 Gaither v. Mumford (Taylor (N. 
 
 C), 167), 239. 
 Gale V. Burnell (7 Q. B. 850), 51. 
 V. Tappan ^12 N. H. 145), 142. 
 Gallagher's App. (7 Atl. Rep. 237), 
 
 175. 
 Gallagher's Exrs. v. Roberts (2 
 Wash. C. C. 191 ; 2 Am. 
 Lead. Cas. 259), 148. 
 Gallagher v. Roberts (2 Wash. C. 
 C. 193), 144. 
 V. Waring (9 Wend. 20), 188. 
 V. Waring (9 Wend. 28), 190. 
 Galligan v. Fannan (7 Allen, 255), 
 
 294. 
 Galloway ». Week (54 Wis. 604), 
 
 88. 
 Gallup V. Lederer (3 Th. & C. 710), 
 272. 
 V. Lederer (1 Hun, 282), 272. 
 Galpinc. At water (29 Conn. 93), 
 196. 
 V. Page (18 Wend. 350), 314. 
 Gait V. Dibrell (10 Yerg. 146), 84a. 
 Galtone ». Taylor (7 T. E. 476), 
 
 296. 
 Galvin v. Bacon (11 Me. 28), 317, 
 324. 
 V. Bacon (2 Fairf. 28), 310. 
 V. Bacon (2 Fairf. 30, 31), 313. 
 Gamble v. Grimes (2 lad. 392), 
 
 292. 
 Gambling v. Read (Meigs, 281), 
 
 325. 
 Gamm «;. Lyric (33 L. J. 2 B. 97; 
 
 6B. & S. 298), 86. 
 Gammell v. Gumby (62 Ga. 504), 
 190. 
 
 613 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Gammone v. Abrams (53 Wis. 323), 
 
 213. 
 Gamson v. Madigans (13 Wis. 87), 
 
 333. 
 Gann v. Buttam (7 Up. Can. C. P. 
 
 130), 233. 
 Garbracht v. Com. (96 Pa. St. 449; 
 42 Am. Eep. 550), 86, 95. 
 Garbutt v. Bank (22 Wis. 384), 
 
 170, 171. 
 Garbrat v. Watson (5 B. & Aid. 
 
 613), 58. 
 Garbrett v. Watson (7 T. R. 14), 56. 
 Gardenier v. Tubbs (21 Wend. 
 
 169), 84a. 
 
 Gardiner v. Gray (4 Camp. 144), 
 
 187, 188. 
 
 V. Lane (9 Allen, 492; 12 Allen, 
 
 399; 98 Mass. 492), 189. 
 
 V. Morse (25 Me. 140), 168, 
 
 169. 
 V. Suydam (7 N. T. 257), 88. 
 V. Tucker (6 K. I. 551), 168. 
 Gardner v. Allen (6 Ala. 187), 273. 
 V. Clark (21 N. Y. 399), 93. 
 V, Commercial Bank (95 111. 
 
 298), 175. 
 V. Gardner (3 Mason 178), 277. 
 V. Gardner (32 Wend. 526), 30. 
 V. Gorham (1 Dougl. (Mich.) 
 
 507), 146. 
 V. Grout (2 C. B. (n. s.) 840), 
 
 70. 
 V. Hoeg (18 Pick. 168), 231. 
 V. Howland (2 Pick. 699), 214, 
 
 321. 
 V. Howland (2 Pick. 602), 105. 
 V. Joy (9 Met. 177), 68. 
 V. Lane (12 Allen, i59), 33. 
 V. Lane (9 Allen 492; 11 Allen, 
 39; 98 Mass. 517), 85, 89. 
 V. Maxey (9 B. Mon. 90), 296. 
 V. McEwen (19 N. Y. 123), 51, 
 
 231, 233. 
 V. Ogden (32 N. Y. 327), 272. 
 614 
 
 Garfie'd v. Paris (96 U. S. 563), 64. 
 Garl V. Hill (1 Stock. Cli. 210), 175. 
 Garland v. Lane (46 N. H. 245), 84, 
 
 85, 95, 291. 
 V. Spencer (46 Me. 528), 163. 
 V. Plummer (72 Me. 397), 240. 
 V. Pnmelin (32 Gratt. 303), 30. 
 Garman v. Cooper (72 Pa. St. 32), 
 
 84a. 
 Garner v. Graves (54 Ind. 188), 
 
 174. 
 Garnett v. Macon (6 Call. 308), 
 
 277. 
 Garney v. Howe (9 Gray, 404), 
 
 154. 
 Garney, In re (7 Biss. 414), 227. 
 Garrard v. E. Co. (29 Pa. St. 154), 
 
 277. 
 Garrelson v. Selby (37 Iowa, 529), 
 
 89. 
 
 Garrett v. Moss (20 111. 554), 260. 
 
 V. Puchett (^15 Ind. 485), 245. 
 
 V. Rhame (9 Rich. 407), 84a. 
 
 Garrison v. Monaghan (88 Pa. St. 
 
 232), 174. 
 Gartell v. Stafford (12 Neb. 552), 
 
 76. 
 Gary v. Jacobson (56 Miss. 204), 
 
 174. 
 Gasden v. Lance (1 McMuU Eq. 
 
 87), 59. 
 Gaskell v. Morris (7 Watts & S. 
 
 82), 334. 
 Gaskins v. Wells (15 Ind. 253), 144. 
 Gassett v. Grant (4 Met. 490), 174. 
 Gassner ». Patterson (23 Cal. 299), 
 
 230, 240. 
 Gaston v. Birncy (U Ohio St. 506), 
 
 152. 
 Gates V. Bliss (43 Vt. 299), 163, 197. 
 V. Thompson (57 Me. 442), 275. 
 Gath V. Lees (3 H. & C. 558), 89. 
 Gatling v. Newell (9 Ind. 672), 163. 
 Gatzweller v. Morgner (51 Mo. 87), 
 
 105. 
 
TABLE OB' CASES CITED. 
 
 References are to Sections. 
 
 Gault V. Brown (48 N. H. 183), 61, 
 70. 
 B.Brown (48 N. H. 182), 61. 
 V. Brown (48 N. H. 189), 71. 
 Gaus V. Benshaw (2 Pa. St. 36), 175. 
 Gautier v. Douglass, &c., Co. (13 
 
 Hun, 5i4), 197. 
 Gay V. Ballon (4 Wend. 419), 19. 
 V. Ballou (4 Wend. 493), 17. 
 V. Bidwell (7 Mich. 619), 84a. 
 ■u. Handeman (41 Tex. 245), 
 
 121. 
 V. Moss (34 Cal. 145), 274. 
 Gaylor ». Harding (37 Conn. 508), 
 
 230. 
 Gaylord Mfg. Co. v. Allen (53 N. Y. 
 515), 117, 190. 
 V. Dyer (5 Cranch C. C. 461), 
 
 325. 
 V. Soragea (32 Vt. 110), 294. 
 Gayley v. Price (16 Johns. 267), 207. 
 Gear v. Schrei (57 Iowa, 666), 250. 
 Geary w. Physic (5 B. & C. 234), 76. 
 Gepcke v. Dubuque (1 Wall. 321), 
 
 292. 
 Genesee Co. Sav. Bank v. Mich. 
 Barge Co. (52 Mich. 164), 
 168. 
 Genesee River Bank v. Mead (92 N. 
 
 Y. 637), 174. 
 George v. Gias3 (Up. Can. Q. B. 
 514), 334. 
 V. Kimball (24 Up. Can. Q. B. 
 
 514), 334. 
 V. Morris (22 Ark. 121), 84a. 
 V. Stubbs (26 Me. 243, 250), 
 83, 206. 
 Georgetown v. Baker (2 Cranch, 
 
 291), 281. 
 German Nat. Bank v. Meadowcraft 
 
 (4 Bradw. 630), 7, 88. 
 Geiraan Bank v. Stumpf (73 Mor. 
 
 311) 
 German Security Bank v. Jeflerson 
 (10 Bush. 328), 319. 
 
 GermaniaFire Ins. Co. v. Memphis, 
 etc., R. R. Co. (72 N. Y. 
 90), 322. 
 Gernon v. Bestick (15 La. An. 697), 
 
 260. 
 Gerry v. White (47 Me. 504), 236. 
 Gersti;. Jones (32 Gratt. 518), 190. 
 Getchell ». Chase (124 Mass. 366), 
 
 145. 
 Getchell v. Chase (37 N. H. 110), 
 
 163. 
 Getman v. Oswego Bank (23 Hun, 
 
 498), 175. 
 Getty t). Rountree (2 Pinn. 379; 2 
 Chand. 28), 187, 197. 
 V. Rountree (2 Chand. 28), 188, 
 190. 
 Gevers v. Wright (18 N. J. Eq. 
 
 330), 232. 
 Gibbes, Ex parte (L. R. 1 Ch. D. 
 
 101), 132. 
 Gibbons v. United States (8 Wall. 
 
 369J, 333. 
 Gibbons v. Luke (37 Hun, 571), 9. 
 Gibbs ». Benjamin (45 Vt. 124), 66, 
 87. 
 V. Estey (15 Gray, 587), 59. 
 V. Jones (46 111. 314), 310. 
 ». Jones (46111. 319), 324. 
 V. Penny (43 Tex. 560), 204, 
 228. 
 Gibson v. Corvage (39 Mich. 49), 
 213. 
 V. Dickie (3 M. & S. 463), 305. 
 ». Eller (ISInd. 124), 204. 
 V. Hill (21 Tex. 225), 84a. 
 V. Holland (L. R. 1 C. P. 1 ; 35 
 
 L. J. C.P. 5), 74, 75. 
 V. Love (4 Fla. 217), 84a. 
 ». Moore (7 B. Mon. 92), 327, 
 
 329. 
 V. McKean (3 Pugs. 299), 83. 
 V. Pelkie (37 Mich. 380), 35. 
 V. Soper (6 Gray, 276), 24. 
 B. Soper (6 Gray, 279), 21. 
 61. T 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Gibson v. Stevens (8 How. 34), 89. 
 V. Stephens (8 How. 384), 69, 
 
 105, 180. 
 V. Tobey (53 Barb. 195), 144. 
 V. Vail (53 Vt. 476), 213. 
 V. Warden (14 Wall. 244), 236. 
 Giddey v. Altman (27 Micli. 206), 
 210. 
 V. Xna (27 Mich. 94) 233. 
 Gifford V. Coryille (29 CaJ. 589), 
 163. 
 V. Ford (5 Vt. 532), 222, 223. 
 Gift V. Anderson (5 Hump. 577), 
 
 261. 
 Gilbert's Appeal (78 Pa. St. 266), 
 
 277. 
 Gilbert v. Decker (53 Conn. 401), 
 84a. 
 V. Manchester Mfg. Co. (11 
 
 Wend. 627), 319. 
 V. N. Y. Cent. R. R. Co. (4 
 
 Hun. 378), 82, 87. 
 V. Sykes (16 East, 150), 301. 
 Gilchrist v. Brooklyn Mfg. Co. 
 (66 Barb. 390), 272. 
 V. Gongh (63 Ind. 576;, 234. 
 u. Billiard (53 Vt. 692), 185. 
 GUdersleeve v. Landon (73 N. Y. 
 
 609), 240. 
 Giles V. Simonds (15 Gray, 441), 59. 
 Gilkeson». Smith (15 W. Va. 44), 
 
 140. 
 
 GillB. Benjamin (64 Wis. 362; 54 
 
 Am. Rep. 619), 103, 132. 
 
 V. Benjamin (64 Wis. 362), 210. 
 
 V. Bicknell (2 Cash. 355), 78, 
 
 286. 
 V. Frank (12 Oreg. 507), 104, 
 
 105. 
 V. Hewett (7 Bush. 10), 78, 286. 
 V. Hauffman (16 Kan. 571), 
 
 188, 197. 
 V. Finney (12 Ohio St. 38), 234, 
 
 240. 
 V. Weller (52 Md. 8), 201. 
 616 
 
 Gillenwaters v. Miller (49 Miss, 
 
 150), 270. 
 Gillett V. Balcomb (6 Barb. 570), 
 284. 
 V. Hill (2 C. & M. 530), 88. 
 GUliatt V. Gilliatt (L. R. 9 Eq. 60), 
 155. 
 V. Roberts (19 L. J. Ex. 410)f 
 70. 
 Gillis V. Martin (2 Dev. Eq. 470), 
 
 204, 224. 
 Gilman v. Andrews (66 Iowa, 116), 
 335. 
 V. County of Douglass (6 Nev. 
 
 27), 143. 
 V. Hill (36 N. H. 318), 61. 
 V. Hill (36N. H. 311), 68, 87, 
 205. 
 Gilman, &c., Co. v. Kelly (77 111. 
 426), 270. 
 V. Moody (43 N. H. 329), 234. 
 Gilmore v. Bussey (12 Me. 418), 
 144. 
 V. Newton (9 Allen, 171), 313, 
 
 316, 288, 324. 
 V. Woodcock (69 Me. 118), 301. 
 Gilmour v. Supple (11 Moore P. C. 
 
 551), 82,84,86, 87. 
 Gilson V. Bingham (47 Vt. 411), 117. 
 Gilpins V. Consequa (1 Pet. C. C. 
 
 86), 218. 
 Glrard v. Taggard (5 Serg. & E. 
 19), 273, 334. 
 V. Taggart (5 Serg. & E. 32), 
 
 334. 
 ©.Taggart (5 Serg. & E. 19), 
 332. 
 Girardey v. Richardson (1 Esp. 13), 
 305. 
 V. Stone (24 La. An. 286), 287. 
 Gittings V. Nelson (86 Hi. 591), 51, 
 52. 
 V. Nelson (86 111. 596), 238. 
 Glasgow's Lessee v. Smith (1 Overt. 
 144), 258. 
 
TABLE OF CASES CITED. 
 
 Beferences, are 
 
 Glass V. Greathouse (20 Ohio, 503), 
 277. 
 V. Hulbert (102 Mass. 24), 228. 
 Giasgovr V. Nicholson (25 Mo. 29), 
 
 106. 
 Glaze V. Blake (56 Ala. 859), 230. 
 Gleason v. Drew (9 Me. 81), 108. 
 «. Knapp (26 Up. Can. C. P. 
 653), 83, 210. 
 Glenn o. Smith (2 Gill. & J. 493), 
 146. 
 V. Smith (2 Gill. & J. 494), 146. 
 17. Smith (2 GUI. & J. 512), 144. 
 Glidden v. Lucas (7 Gal. 26), 317. 
 Globe Works v. Wright (106 Mass. 
 
 207), 244. 
 Glover t). Austin (6 Pick. 209), 231. 
 V. McGillivray (63 Ala. 508), 
 
 225. 
 V. Payne (19 Wend. 518), 204, 
 224. 
 Goarj). Hurd (92 111. 315), 230, 241. 
 Godard v. Gould (13 Barb. 662), 
 
 230. 
 Goddard v. Binney (115 Mass. 456), 
 89. 
 V. Blnney (115 Mass. 450), 58, 
 
 205, 84, 88, 333. 
 ».Coe(65Me. 385), 222. 
 V. Cox (2 Stra. 1194), 152. 
 V. Sawyer (,9 Allen, 78), 265. 
 V. Weaver (1 Woods, 267), 
 240. 
 Godis». Rose (17 C. B. 229; 25 L. 
 
 J. C. P. 61), 89. 
 Godtso. Eose (17 C. & B. 229; 25 
 L. J. C. P. 61), 69, 85. 
 V. Rose (17 C. B. 229), 85. 
 Godwin o. Crowell (56 Ga. 566), 
 
 296. 
 Goff V. Pope (83 N. C. 123), 233. 
 V. Rehoboth (2 Cush. 476), 
 139. 
 Golden v. Cockril (1 Kan. 259), 233, 
 239. 
 
 to Sections. 
 Golden v. Levy (1 Car. L. Repor. 
 
 527), 273. 
 Golder v. Ogden (15 Pa. St. 358), 
 
 82. 
 Goldsborough v. Orr(8 Wheat. 217), 
 
 201. 
 Goldsmith v. Bryant (26 Wis. 34), 
 
 210. 
 B. Church Trustees (6 Rep. 
 
 436), 274. 
 Golpin V. Atwater (29 Conn. 93), 
 
 196. 
 Gompertz o. Bartlett (2 El. & B. 
 
 849), 197, 215. 
 Gonson o. Madigan (13 Wis. 67), 
 
 883. 
 Gooch V. Holmes (41 Me. 523), 59. 
 Good V. Elliott (3 T. R. 693), 301. 
 V. Winslow (4 Allen N. B. 241), 
 
 6,7. 
 Goodale v. Holdridge (2 Johns. 
 
 193), 298. 
 V. Wheeler (11 N. H. 424), 269. 
 Goodall V. Skeltou (2 H. Bl. 316), 
 
 71, 122. 
 Goodell V. Dewey (100 111. 308), 
 
 250. 
 V. Farebrother (12 R. I. 233), 
 
 9, 206, 325. 
 Goodheart v. Johnson (88 111. 58), 
 
 106, 234. 
 Gooding v. Morgan (37 Me. 619), 
 
 144. 
 Goodenow v. Allen (68 Me. 308), 
 
 230. 
 B.Tyler (7 Mass. 36), 273, 317. 
 Gooderham v. Marlett (14 U. C. Q. 
 
 B. 228), 8. 
 Gooding ». Riley (50 N. H. 400), 
 
 226. 
 V. Riley (60 N. H. 406), 240. 
 Goodman v. Griffiths (26 L. J. Ex. 
 
 146; 1 H. & M. 574), 76. 
 V. Pledger (14 Ala. 114), 243, 
 
 246. 
 
 617 
 
TABLE OF CASES CITED. 
 
 References are tp Sections. 
 
 Goodsell o. Myers (3 Wend. 497) , 
 
 19. 
 Goodrich v. Michael (3 Colo. 77), 
 
 240. 
 B.Tracy (43 Vt. 314), 149. 
 V. Van Northwick (43 111. 436), 
 
 213. 
 V. ■Williams (50 Ga. 425), 231. 
 Goodlittle v. Holdfast (2 Strange, 
 
 200), 218. 
 Goodwin V. American Bank (48 
 
 Conn. 288), 277. 
 V. Boston, &c., E. R. Co. (11 
 
 Mass. 487), 85, 86, 93. 
 V. Clark (65 Me. 280), 61, 292. 
 V. Coates (1 M. & E. 221), 148. 
 V. Crevely (4 Hurl. & N. 633), 
 
 100. 
 V. Goodwyn (20 Ga. 600), 84a. 
 V. Holbrook (4,Wend. 377), 207. 
 V. Holbrook (4 Wend. 380), 96. 
 V. Kelly (42 Barb. 194), 238. 
 V. May (23 Ga. 205), 325. 
 V. Merrill (13 Wis. 658), 34, 
 
 209. 
 Googins V. Gilmore (47 Me. 9),234. 
 Gookin v. Graham (5 Humph. 480), 
 
 185. 
 Gordon -j. Butler (105 U. S. 553), 
 
 158. 
 V. Cannon (18 Gratt. 387),175. 
 V. Casey (23 111.70), 301. 
 V. Clapp (111 Mass. 22), 247. 
 V. Clapp (113 Mass. 335), 250. 
 V. Gordon (96 Ind. 134), 196. 
 V. Norris (49 N. H. 376), 335. 
 V. Norris (49 N. H. 383), 333. 
 V. Norris (49 N. H. 376), 89. 
 V. Parmlee (12 Allen, 212), 166. 
 V. Price (10 Ired. L. 388), 144. 
 D.Price (lOIred. 385), 144, 146. 
 V. Sims (2 McCord. Ch. 151), 
 
 284, 286. 
 17. Wattrous (36 Up. Can. Q. B. 
 
 321), 196. 
 
 618 
 
 Gore V. Gibson (13 M. & W. 623), 
 
 25. 
 Gorgon v. Waterons (36 U. Can. Q. 
 
 B. 321), 115. 
 Gorham v. Fisher (30 Vt. 428), 68. 
 V. Fisher (30 Vt. 431), 67. 
 V. Summers (25 Minn. 81), 239. 
 Goss V. Quinton (3 M. & G. 825), 
 
 82, 87. 
 V. Neale (6 Moore, 29), 175. 
 Grossard v. Ferguson (54 Ind. 519), 
 
 286. 
 Goshen v. Kern (63 Ind. 473), 280. 
 Gossler v. Eagle Sugar Eef. (103 
 
 Mass. 331), 167, 189, 190. 
 V. Schepeler (5 Daly, 476), 126. 
 Gott V. Palmer (41 Mo. 416), 314. 
 Gottwalla v. MulhoUand (16 Up. 
 
 Can. C. P. 62), 175. 
 
 Gough V. Edelen (5 Gill. 101), 84a. 
 
 Gould V. Marsh (1 Hun, 566), 245. 
 
 V. Marsh (4 T. & C. 128), 240. 
 
 V. MuJCh (70 Me. 288), 218. 
 
 Gouldlngc. Bunster (9 Wis. 503), 
 
 245. 
 V. Davidson (28 Barb. 438), 27. 
 o. Swett (13 Gray, 517), 233. 
 Governor, Guardians, etc., of the 
 
 Poor of Kingston -upon- 
 
 Hull v., Petcti (10 Ex. 
 
 610; 24 L. J. Ex. 23), 40. 
 Gowan v. Jones (10 Smed. & M. 
 
 164), 256. 
 Gowans v. Consolidated Bank of 
 
 Canada (43 Up. Can. 2 
 
 B. 818), 89. 
 Gowen v. Klous (101 Mass. 449), 
 
 73,76,286. 
 Gowlng V. Knowles (118 Mass. 
 
 232), 38, 115. 
 Grace v. Adams (100 Mass. 606), 
 
 323. 
 Gracy v. Potts (4 Baxt. 395), 139. 
 Graff V. Castleman (5 Eand. 195), 
 277. 
 
TABLE OF CASES CITED. 
 
 Graft V. Fitch (58 Dl. 373), 104, 
 
 206. 
 V. Foster (67 Mo. 612), 188. 
 Graffenstein v. |Epsteia (23 Kan. 
 
 4*3), 168, 159. 
 Grafton v. Armitage (2C.& B.336), 
 
 68. 
 V. Cummings (99 U. S. 100), 
 
 76. 
 V. Cummings (99 U. S. Ill), 
 
 76. 
 Graham ». Dnokwell (8 Bush. 12), 
 
 269, 270,272,273. 
 V. Fretwell (3 M. & G. 868), 
 
 78. 
 V. Mowlin (64 Ind. 389), 160. 
 V. Musson (6 Bing. N. C. 603), 
 
 78. 
 V. Railroad Co. (102 U. S. 163), 
 
 174. 
 V. Van Dieman's Land Co. (30 
 
 Bng. L. & Eq. 579), 100. 
 Granberry v. Frierson (2Baxt. 326), 
 
 334. 
 Grand Tower Co. v. Phillips (23 
 
 Wall. 471), 335. 
 Granite State, The (1 Sprague, 277), 
 
 244. 
 Grant B. Burchy (26Huu, 376),213. 
 V. Cadwell (8 Up. Can. Q. B. 
 
 161), 181. 
 V. Fletcher (5 B. & C. 436), 79., 
 V. Hamilton (3 McLean, 100; W. 
 
 S. C. C), 301. 
 V. Hardy (33 Wis. 668), 272. 
 V. King (14 Vt. 367), 316, 324. 
 V. King (14 Vt. 376), 325. 
 V. Lewis (14 Wis. 487), 84a. 
 V. Nat. Bank (97 U. S. 80), 175. 
 V. Norway (20 L. J. C. P. 93; 
 
 10 C. B. 669), 323. 
 V. Shelton (3B. Mon.423), 195. 
 V. Thompson (4 Conn. 203), 21. 
 Grantham v. Hawley (Hob. 132), 
 
 62, 231. 
 
 References are to Sections. 
 
 Grantland v. Wright (2 Monf. 179), 
 
 284. 
 Grapergether v. Fegewary (9 Iowa, 
 
 163), 30. 
 Grasselli v. Lowden (U Ohio St. 
 
 349), 303. 
 Gratitudine, The (3 Rop. Adm. 269), 
 
 275. 
 Graul 17. Strutzel (53 Iowa, 712), 
 
 183. 
 Graves v. Legg (9 Ex. 709, 716), 
 197. 
 B. Sayre (5 B. Mon. 390), 242. 
 V. Spier (58 Barb. 349), 173. 
 Gray ». Agnew (95 111. 316), 273, 
 317. 
 V. Armistead (6 Ired. Eq. 74), 
 
 277. 
 V. Angler (62 Ga. 596), 140. 
 0. Brigmordellcf (1 Wall. 627), 
 
 314. 
 V. Burton (55 N. Y. 68), 11. 
 V. Central R. E. Co. (11 Hun, 
 
 T'O), 213. 
 V. Davis (10 N. Y. 286), 67, 
 
 115. 
 V. Haig (20 Beav. 219, 239), 
 
 282. 
 V. Hall (29 Kan. 704), 335. 
 V. Hook (4N. Y. 449), 298,300. 
 V. Mayor of New York (46 N. 
 
 Y. S. C. 494), 84. 
 17. McAllister (60 Iowa, 497), 
 
 174. 
 V. Shaw (14 Mo. 341), 260. 
 V. Sullivan (10 Nev. 416), 84a. 
 V. Wass (1 Greenl. 257), 142. 
 Grearyc. Physic (6 B.& C. 234), 77. 
 Great v. Gill (51 N. Y. 431), 113. 
 Great Northern Railway u. Witham 
 
 (L. R. 9 C. P. 16), 40. 
 Greaves v. Ashlin (3 Camp. 426), 
 113, 120. 
 V. Hepke (2 B. & Aid. 131), 
 205. 
 
 619 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Greaves v. Legg (2 Hur. & N. 210), 
 
 272. 
 Gregory v. McDowell (8 Wend. 
 
 435), 336. 
 Gregg V. Fitzhugh (36 Tex. 127), 
 336. 
 V. Sanford (24 111. 17), 231, 232. 
 Gregory v. King (68 111. 169), 301. 
 V. Morris (96 U. S. 619), 121. 
 V. Paul (15 Mass. 31), 29. 
 V. Schoenell (55 Imp. 101), 
 
 161, 168. 
 V. Thomas (20 Wend. 17), 144, 
 
 240. 
 i>. Underbill (6 Lea, 207), 193. 
 c.Wattoma (58 Iowa, 711), 302. 
 V. Wendall (39 Mich. 337), 302. 
 V. Wendell (39 Mich. 337; a. 
 
 0. 40 Mich. 432), 272. 
 V. Wilson (39 N. J. L. 315), 272. 
 Gregson v. Rucks (4 B. B. 747), 79. 
 Greve w. Dunham (60 Iowa, 108), 
 
 130. 
 Grew V. Forsythe (31 Iowa, 179), 
 
 283. 
 Greed v. Brookins (23 Mich. 48), 
 
 59. 
 Greeley v. Bartlett (1 Greenl. 172), 
 273. 
 V. Bartlett (1 Me. 172), 317. 
 V. Beading (74 Mo. 309), 238. 
 Green v. Armstrong (1 Denio, 660) , 
 59, 231. 
 V. Banerstock (14 C. B. 204), 
 
 165. 
 V. Banks (24 Tex. 508), 84a. 
 V. Bateman (2 M. & W. 359). 
 Greenwood ». Burns (50 Mo. 52), 
 
 269. 
 Green v. Campbell (62 Cal. 686), 
 317. 
 V. Church (13 Bush. 430), 9, 
 
 203, 326. 
 V. Corrington (16 Ohio St. 648), 
 239. 
 620 
 
 Green v. Green (7 Hun, 492), 229. 
 V. Hall (1 Houst. 606), 87, 210. 
 V. Hart (1 Johns. 580), 246. 
 V. Humphrey (60 Pa. St. 212), 
 
 168, 329 
 V. Marble (37 Iowa, 95), 245. 
 V. Merriam (28 Vt. 801), 69, 
 
 286. 
 V. North Car E. E. Co. (73 N. 
 
 C. 524), 59. 
 V. Price (13 M. & W. 653), 303. 
 ». Randall (57 Vt. 67), 196. 
 V. Eussell (132 Mass. 536), 144. 
 V. Sargent (23 Vt. 466). 
 V. Tanner (8 Met. 411), 174. 
 V. Trelber (3Md. 28), 84a. 
 V. Van Buekirk (7 Wall. 139), 
 
 239. 
 V. Collins (3 Clife. 494), 294. 
 Greenaway ii. Fuller (47 Mich. 
 
 557), 230. 
 Greenbaum v. Majibben (10 Bush. 
 419), 320, 323. 
 V. Wheeler (90 111. 296), 106. 
 Greene v. Dingley (24 Me. 131), 246. 
 V. Godfrey q44 Me. 25), 308. 
 V. Rowland (16 Gray, 58), 106. 
 Greenfield Sav. Bank v. Simons 
 
 (133 Mass. 416), 270. 
 Greenhood v. Eeaton (9 111. App. 
 183), 269. 
 o. Keator (9 Bradw. 183), 142. 
 Greenleaf V. Eagan (30 Minn. 316), 
 
 142, 269. 
 Greene v. Tyler (39 Pa. St. 361), 
 
 152. 
 Greenthal v. Schneider (52 How. 
 
 Pr. 133), 115. 
 Grice ». Richardson (L. B. 3 App. 
 
 Cas. 319), 120, 122. 
 Gridley v. Watson (63 111. 193), 
 
 174. 
 Grler v- Stout (2 Bradw. 602), 6. 
 Griffln v. Baird (62 N. Y. 829), 
 185. 
 
TABLE OF CASES CITED. 
 
 References are 
 
 Griffin v. Forest (49 Mich. (1882) 
 309), 239. 
 ■V. Marine Co. of Chicago (52 
 
 111. 130), 266. 
 ». Werts (2Bradw. 487), 240. 
 V. Wright (1 Tex. App. (Civ. 
 Cas.), § 638), 104. 
 Griffith 0. Bogert (18 How. 159, 
 164), 256. 
 0. Clover (16 N. Y. 489), 333. 
 V. Douglass (73 Me. 532), 231, 
 
 232, 238. 
 V. Fowler (18 Vt. 390), 311, 
 
 814. 
 V. Fowler (18 Vt. 394), 256. 
 V. Grogan (12 Cal. 321), 144. 
 V. Ingledew (6 S. & R. 429), 
 
 89. 
 V. Judge (49 Mo. 536), 169. 
 V. Owen (13 M. & W. 58), 147. 
 V. Wells (3 Dennis, 227), 290, 
 306. 
 Griffiths, In re (1 Lowell, 431), 240. 
 V. Perry (1 El. & E. 680), 119. 
 Grignon v. Astor (2 How. 319), 256. 
 Grim». Byrd (32 Gratt. 293), 160. 
 Grimaldi v. White (4 Esp. 95), 163. 
 Grimes v. Van B'echten (20 Mich. 
 
 410), 66. 
 Grimolby v. Wells (L. E. 10 Com. 
 P. 391), 115. 
 u. Wells (L. B. 10 C. P. 391), 
 197, 215. 
 Grimshaw v. Walker (12 Ala. 101), 
 
 ' 175. 
 
 Grinnell v. Schmidt (2 Sandf. 706), 
 
 273. 
 Griswold v. Butler (3 Conn. 227), 
 21. 
 V. Chandler (5 N. H. 492), 277. 
 V. Haven (25 N. Y. 595), 173, 
 
 320. 
 V. Shelden (4 N. Y. 601), 84a. 
 Groat V. Gile (61 N. Y. 431), 82, 104. 
 V. Hill (4 Gray, 361), 126. 
 
 to Sections. 
 
 Groffe V. Belche (62 Mo. 400), 205. 
 Groom v. Aflalo (6 B. & C. 117), 79. 
 Groming v. Mendbam ( 1 Stark. 257) , 
 
 163. 
 Gross V. Gardner (3Mod. 261), 193. 
 V. Hennessey (13 Allen, 389), 
 
 186. 
 V. Kierskip (41 Cal. Ill), 186. 
 V. LaPage (Holt, 105), 303. 
 V. Pearcy (2 Pat. & H. (Va.) 
 483), 257. 
 Groton Mfg. Co. v. Gardiner (11 E. 
 
 I. 626), 222, 232. 
 Grout V. Hill (4 Gray, 361), 125. 
 
 V. Hill (4 Gray, 361, 368), 329. 
 Grove v. Brien (8 How. 429), 89. 
 V. Brien (8 How. 438), 89. 
 V. Wise (39 Mich. 161), 241. 
 Grover v. Dubois (1 T. E. 112), 273. 
 V. Wakeman (11 Wend. 194), 
 175. 
 Groves v. Buck (3 M. & S. 178), 66. 
 Groy V. Hall (29 Kan. 704), 335. 
 Grubbs ». Greer (6Coldw. 160), 84a. 
 V. McGlawn (39 Ga. 672), 277. 
 Grum?). Balney (65 Cal. 254), 84a. 
 Grumley v. Webb (44 Mo. 444), 
 
 270. 
 Guernsey v. Miller (80 N. Y. 181), 
 
 176. 
 Guice V. Crenshaw (60 Tex. 844), 
 
 336. 
 Guild V. Becher (119 Mass. 257), 
 
 292. 
 GuiffordB. McKinley (61 Ga. 230;, 
 
 210. 
 Guilfford V. Smith (30 Vt. 49, 72), 
 
 130, 132. 
 Guinnc. Siraes (61- Mo. 335), 290, 
 
 293, 308. 
 Guimm v. Whittaker (1 Harr. & J. 
 
 764), 152. 
 Guion V. Doherty (43 Miss. 538), 
 
 144. 
 Gulichi;. Ward (6 Halst. 87), 169. 
 621 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Grnnaldson v. Nyhus(27 Minn. 440), 
 
 281. 
 Gunby v. Slater (44 Md. 237), 160. 
 Ganderson v. Richardson (56 Iowa, 
 
 56), 308. 
 Gundy v. Blteler (6 Bradw. 510), 
 
 231. 
 Gunn V. Bolchow (L. R. 10 Cli. App. 
 
 491), 120. 
 Gunter v. Lecky (30 Ala. 591), 12. 
 Gunther v. Atwell (19 Md. 157), 
 
 188. 
 ». Atwell (19 Md. 158), 212. 
 Gurney v. Atlantic By. Co. (58 N. 
 
 Y. 358), 197. 
 V. Behrend (3 E. & B. 622 ; 22 
 
 L. J. Q.B. 265), 321, 323. 
 Gurney, Ee (7 Biss. 414), 240. 
 
 V. Wamersley (4 E. & B. (28 
 
 Eng. Co. L. R.) 133), 
 
 146. 
 Gashel v. Robinson (40 Me. 412), 
 
 222. 
 Gustint). Phillips (38 Mich. 675), 
 
 135. 
 Guthing V. Lynn (2 B. & Ad. 232), 
 
 33. 
 Gulling V. Newell (9 Ind. 572), 163. 
 Gathman v. Kearu (8 Neb. 507), 
 
 140. 
 Gutwillig V. Zuberbier (2 N. Y. St. 
 
 Rep. 605), 89. 
 Guyman v . Burlingame (36 III. 201) , 
 
 301. 
 Gwillim V. Daniell (2 C. M. & E. 65 ; 
 
 5Tyr. 644), 102. 
 Gwyn V. Richmond, &c., R. R. Co. 
 
 (85 N. C. 429), 126. 
 V. Tunner (18 Iowa, 1), 239. 
 
 H. 
 
 Haake, In re (2 Sawy. 231), 221, 
 
 248. 
 Haas V. Damon (9 Iowa, 589), 317. 
 622 
 
 Haas V. Myers (11 111. 421), 39. 
 Haase v. Mitchell (58 Ind. 213), 
 
 163. 
 V. Nonnemacher (21 Minn. 486), 
 
 117. 
 Hackettc. OUender (31 Vt. 87), 329. 
 0. Manlove (14 Cal. 85), 240. 
 Hackleman v. Goodman (75 Ind. 
 
 202), 233, 24-3. 
 Hackley v. Swigert (5 B. Mon. 86), 
 
 255. 
 Hackney v. Jones (3 Hump. 612), 
 
 269. 
 adden v. Johnson (7 Ind. 394), 
 
 286. 
 Hadley v. Clinton (13 Ohio St. 502) 
 
 157, 167, 171, 187. 
 Hartleys. Kendrick (10 Lea, 525), 
 
 297. 
 Hafner u. Irwin (1 Ired. L. 490), 
 
 175. 
 Hagan v. Lucas (10 Pet. 400), 255. 
 Hahn v. Fredericks (30 Mich. 223). 
 
 88. 
 Haight V. Hoyt (19 N. Y. 464), 164. 
 Haille v. Smith (1 Bos. & Pul. 564), 
 
 321. 
 Haine v. Torrant(2 Hill (S. C), 
 
 400), 17. 
 Haines o. Pearce (41 Md. 221), 144, 
 
 148. 
 V. State (7 Tex. App. 33), 99. 
 V. Thompson (7 Pa. St. 438), 
 
 224. 
 V. Thompson (70 Pa. St. 442), 
 
 204. 
 V. Tucker (50 N. H. 307), 101. 
 
 103,116,211,333. 
 V. Tucker (50 N. H. 309), 210. 
 V. Tucker (50 N. H. 313), 334. 
 Hagar v. King (38 Barb. 200) , 70. 
 Hagee v. Grossman (31 Ind. 223), 
 
 162. 
 Hager v. Catling (18 Hun, 448), 
 
 300. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Hague o. Porter (3 Hill, 141), 89. 
 Haldeman i). Duncan (51 Fa. St. 
 
 66), 88. 
 Hale V. Gerrish (8 N. H. 374), 19. 
 V. Huntley (21 Vt. 147), 82, 
 
 87. 
 V. Met. Omnibus Co. (28 L. J. 
 
 Ch. 777), 174. 
 W.Milwaukee (29 Wis.4«2), 323 
 V. Milwauliee Dock Co. (29 
 
 Wis. 492), 320. 
 V. Smltli (6 Greenl. 420), 185. 
 V. Omaha Nat. Bank (64 N. Y. 
 
 550), 24. 
 V. Sweet (40 N. T. 97), 238. 
 Halff^. AUyn (60 Tex. 278), 130. 
 Halfordt). Kymer (10 B. & C. 724), 
 
 301. 
 Hall V. Mtaa, Mfg. Co. (30 Iowa, 
 
 215), 213, 325. 
 V. Bellows (11 N. J. Bq. 333), 
 
 248,249. 
 V. Bntterfleld (69 N. H. 354), 
 
 17. 
 B. Butterfleld (59 N. H. 354; 
 
 47 Am. Rep. 209), 20; 
 V. Cannon (4 Harr. 360) , 209. 
 V. Chapman (35 Ala. 553), 277. 
 V. Conder (2 C. B. (n. 8.)22), 
 
 185. 
 V. Conder (2 0. B. (n. s.) 40), 
 
 187. 
 B. Dimond (63 N. H. 565), 130. 
 V. Dimond (SAtl. Rep. (N. H.) 
 
 423), 130. 
 V. Ditson (55 How. Pr. 19), 
 
 247, 248, 250. 
 V. FuUerton (69 Ind. 448), 163. 
 V. Gaylor (37 Conn. 650), 84a, 
 
 85, 95. 
 Halleck v. Guy (9 Cal. 181), 256. 
 Hall V. Hall (48 Conn. 250), 52. 
 V. Hinks (21 Md. 406), 325. 
 V. Hinks (21 Md. 206, 406), 
 
 327, 329. 
 
 Halliday v. Holgate (L. R. 3 Ex. 
 
 299), 274. 
 Hall V. Johnson (41 Mich. 286), 
 158. 
 V. Jones (21 Md. 439), 18. 
 V. Mayo (7 Allen, 456), 323. 
 V. Merriwether (19 Tex. 224), 
 
 213. 
 V. Naylor (18 N. Y. 588), 170. 
 V. Pillow (31 Ark. 32), 239. 
 V. Plassen (19 La An. 11), 188. 
 0. Sampson (35 N. Y. 274), 241. 
 . V. Saville (3 Greene Iowa, 37), 
 224. 
 o. Snowhill (14 N. J. L. 8), 
 
 240. 
 17. Snowhill (2 Green (N. J.), 
 
 8), 221. 
 V. Snowhill (2 Green (N. J. 
 
 L.), 8, 248), 248. 
 V. Snowhill (14N. J. L. 8), 84a. 
 V. Tufts (18 Pick. 455), 234. 
 Halleck v. Com. Ins. Co. (2 Dutch. 
 (N. J.) 268), 40. 
 V. Moss (17 Cal. 339), 277. 
 Hallegarten v. Oldham (135 Mass. 
 
 1), 105. 
 Hallen v. Runder (1 G. M. & R. 
 
 267), 59. 
 Halley v. Troester (72 Mo. 73), 21. 
 Halliday u. Briggs (15 Neb. 219), 
 193. 
 V. Holgate (L R. 3 Ex. 299), 
 316. 
 Hallidie v. Sutter St. R. R. Co. (63 
 
 Cal. 675), 213. 
 Hallock V. Insurance Co. (26 N. J. 
 
 Law, 282), 39. 
 Hally V. Forester (72 Mo. 73), 24. 
 Halsey v. Whitney (4 Mason, 211), 
 
 176, 
 Halstat V. Blakeslee (44 Conn. 
 
 301), 84o. 
 Halstead v. Swartz (IT. & C. 
 559), 246. 
 
 623 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 HaU». Swartz (46 How. Pr. 289), 
 247. 
 V. Swartz (1 T. & C. (N. Y.) 
 659), 221. 
 Ham V. Smith (87 Pa. St. 63), 298, 
 
 300. 
 Hamburg M. Co. v. Edsall (1 Halst. 
 
 Ch. 249), 169. 
 Hamer v. Fisher (68 Pa. St. 463), 
 
 170. 
 Hamet v. Letcher (27 Ohio St. 
 356), P5. 
 V. Letchter (37 Ohio. St. 36.6), 
 310. 
 Hamilton v. Cunningham (2 Brock. 
 250), 148. 
 u. Hamilton (2 Kich. Eq. 355), 
 
 169. 
 V. Insurance Co. (5 Pa. St. 
 
 339), 39. 
 V. MitcheU (6 Blackf. 131) 
 
 241. 
 V. Myles (24 Up. Can. C. P. 
 
 309), 116. 
 V. McPherson (28 N. Y. 76), 
 
 336. 
 V. Eogers (8 Md. 301), 61, 231, 
 
 232. 
 V. Russell (1 Cranch, 309), 
 
 Sia. 
 V. Russell (1 Cranch. 316), 
 
 174. 
 V. State Bank (122 Iowa, 306), 
 274. 
 . V. Ward (4 Tex. 363), 264. 
 Hamlett v. Tallman (30 Ark. 605), 
 
 140. 
 Hamlin v. Jarrard (72 Me. 62, 79), 
 
 238. 
 Hamlyn v. Boultoa (15 Kan. 376), 
 
 241. 
 Hammer u. Schoenf elder (47 Wis. 
 
 455), 336. 
 Hammers v. Dole (61 111. 307), 239, 
 247, 249. 
 
 624 
 
 Hammett v. Linneman (48 N. Y. 
 
 399), 85, 86, 217. 
 Hammond v. Anderson (1 B. &P. 
 N. R. 69), 122, 206. 
 V. Danielson (126 Mass. 207), 
 
 244. 
 V. Pennick (61 N. Y. 145), 160, 
 
 163. 
 V. Plimpton (30 Vt. 333), 243. 
 Hammonds v. Barclay (2 East, 236), 
 119. 
 V. Hopkins (3 Yerg. 625), 227. 
 Hananer V. Doane (12 Wall. 342), 
 294, 297. 
 V. Gray (35 Ark. 350), 292. 
 Hanchett v. Mansfield (16 111. App. 
 
 407), 170. 
 Hancock v. Carlton (6 Gray, 39), 
 219. 
 V. Gibson (3 Up. Can. Q. B. 
 41), 93. 
 Handlettev. Tallman (2 Shep (Me.) 
 
 400), 205. 
 Handly v. Howe (22 Me. 560), 239. 
 Hands v. Burton (9 East, 349), 12. 
 
 V. Slancy (8 T. R. 578), 17. 
 Handford v. Archer (4 Hill, 271), 
 238. 
 V. Artcher (4 Hill, 271), 84a. 
 «. Obrecht (49 111. 146), 84a. 
 0. Robertson (47 Mich. 100), 
 152. 
 Hankey v. Hunter (Peake. Ad. Cas. 
 
 107), 152. 
 Hanks v. Neal (44 Miss. 212), 
 260. 
 B. Pulling (26 L. J. Q. B. 376), 
 284. 
 Hannah. Harter (2 Ark. 397), 336. 
 V. Mills (21 Wend. 90), 332. 
 V. Sayburn (84 111. 633), 158. 
 Hannah v. Carrington (18 Ark. 86), 
 
 221, 261. 
 Hansen v. Dennison (7 Bradw. 73), 
 52. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Hansett v. Harrison (105U. S. 405), 
 
 238. 
 Hansman v. Nye (62 Ind. 485), 65. 
 Hanson v, Armitage (5 B. & Aid. 
 557), 65. 
 V. Busse (45 111. 499), 188. 
 V. Edgerly (29 N. H. 34.3), 160, 
 
 167. 
 V. Edgerton (29 N.H. 357), 162. 
 V. Meyer (6 Bast, 614), 82, 87, 
 
 89. 
 V. Boberdeane (Peake, N. P. C. 
 163), 288. 
 Hanove v. Doane (12 Wall. 342), 
 
 292. 
 Hanover v. Bartels (2 Col. 614), 89. 
 Hanwayc. Wallace (18 Ind. 377), 
 
 325. 
 Hapgood«. Batchelder (4 Met. 576), 
 
 273. 
 Hardacre v. Stewart (5 Esp. 104), 
 
 288. 
 Hardee v. Cheatham (52 Miss. 41), 
 
 277. 
 Harden v. McClure (1 Chandl. 
 
 271), 58. 
 Hardestyi). Wilson (2 Gill, 481), 
 
 263. 
 Hardingham v. Allen (17 L. J. C. 
 
 P. 198), 282. 
 Harding v. Cobnrn (12 Met. 833), 
 233. 
 V. Commercial Line Co. (84 111. 
 
 251), 140. 
 V. Cooper (84 Stark, 467), 296. 
 V. Evans (3 Port. (Ala.) 221), 
 
 277. 
 V. Meitz (1 Tenn. Ch. 610), 
 207, 325. 
 Harrod v. Myers (21 Ark. 592), 18. 
 Harding ». Tifet (76 N. Y. 461), 
 162. 
 V. Womeley (8 Baxt. 678), 152. 
 Hardy v. Metzgar (2 Yeats, 347), 
 311. 
 
 40 
 
 Hardman v. Booth (32 L. J. (n. s) 
 
 Ex. 105), 168. 
 Hardy v. Potter (10 Gray, 89), 84a, 
 104, 106. 
 V. Tilton (68 Me. 195), 255. 
 V. Van Harbinger (7 Ohio St. 
 208), 30. 
 Hargrave ». Conroy (4 C. E. 
 Greene, 281), 209. 
 V. Dusenberry (2 Hawks, 326), 
 149. 
 Hargour v. Stone (5 N. Y. 73), 
 187, 188. 
 V. Stone (1 Seld. 86), 214. 
 Harjons v. Stone (5 N. Y. 73), 188. 
 Harkness v. Russell (118 U. S. 663), 
 
 325. 
 Harley v. Iron Works (66 Cal. 238), 
 180, 215. 
 V. Thornton (2 Hill (S. C.) 509), 
 149. 
 Harlin v. Maglaughlan (90 Pa. St. 
 
 293), 174. 
 Harlow v. Hall (132 Mass. 232), 
 84a, 105. 
 V. Sparr (15 Mo. 184), 287. 
 Harman v. Anderson (2 Camp. 243), 
 69, 105. 
 V. Magee (57 Miss. 410), 140. 
 V. Keeve (25 L. J. C. P. 257; 18 
 C. B. 586), 61. 
 Harmony ». Bingham (12 N. Y. 99), 
 218. 
 V. Mitchell (1 Blatchf. 549), 
 252. 
 Harner v. Dipple (31 Ohio St. 72), 
 18. 
 i>. Fisher (.58 Pa. St. 453), 168. 
 Harnrick v. Craven (39 Ind. 241), 
 
 277. 
 Harpending ». Meyers (55 Cal. 556), 
 
 324. 
 Harper v. Dotson (43 Iowa, 232), 
 186. 
 V. Boss (10 Allen, 332), 4, 228. 
 625 
 
TABLE OF CASES CITED. 
 
 Keferences are to Sections. 
 
 HarrolsoD v. Stein (50 Ala. 347), 
 
 34. 
 Harrell v. Miller (36 Miss. 700), S9. 
 Harrington v. Brittan (23 Wis. 541), 
 
 240. 
 V. Brown (5 Pick. 619), 277, 
 IK King (121 Mass. 269), 230, 
 
 325. 
 V. Eloprogge (2 Brod. & Bing. 
 
 678), 298. 
 V. McShave (2 Watts, 443), 271. 
 Harris v. Bradley (2 DUl. C. C. 284), 
 
 320. 
 V. Burns (60 Cal. 140), 174. 
 V. Case (7 Ch. 591), 42. 
 V. Case (7 Ch. 587), 40. 
 V. Exchange Nat. Bank (4 Dill. 
 
 133), 240. 
 V. Fowle (1 H. Bl. 287), 12. 
 V. Hanover Nat. Bank (15 Fed. 
 
 Rep. 786), 149. 
 V. Johnson (3 Cranch, 311), 147. 
 V. Jones (83 N. C. 317), 222, 
 
 239. 
 V. Kennedy (48 Wis. 600), 233. 
 V. Lindsey (4 Wash. C. C. 98, 
 
 271), 146. 
 V. Lnmbridse (83 N. Y. 92), 302. 
 V. Lynn (25 Kan. 281), 248, 250. 
 Harris Mfg. Co. c. Marsh(49Iowa, 
 
 11), 333. 
 Harris B. Nicholas C5Munf. 483), 50. 
 V. Norton (16 Barb. 264), 240. 
 0. Pratt (17 N. Y. 249), 131. 
 V. Roof (10 Barb. 489), 299. 
 o. Runnels (12 How. 79), 306. 
 V. Saunders (1 Strobh. Eq. 300), 
 
 314. 
 V. Simmerman (81 111.413), 142, 
 
 269. 
 V. Smith (3 Serg. v. R. 20), 93. 
 V. Smith (3 Serg. & R. 21), 83. 
 c. Sumner (2 Pick. 129), 175. 
 V. Tyson (24 Pa. St. 347), 167, 
 
 171. 
 626 
 
 Harris v. Waite (61 Vt. 480), 190. 
 Harrison v. Cachelin (36 Mo. 79), 
 
 260. 
 V. Colter (81 Iowa, 16), 308. 
 V. Glover (72 N. Y. 46), 335. 
 V. Harrison (1 Md. Ch. 333), 
 
 256. 
 V, Hicks (1 Port. (Ala.) 423), 
 
 246. 
 V. Sale (6 Sm. & M. 634), 209. 
 V. Shanks (13 Bush. 620), 182. 
 V. Rosa (12 Jones & Sp. 230), 
 
 142. 
 V. Trustees (12 Mass. 459), 227. 
 Hart V. Boiler (15 Serg. & B. 162), 
 
 146. 
 V. Burton (7 J. J. Marsh, 217), 
 
 224. 
 V. Bush (E. B. &E. 494; 27 L. 
 
 J. Q. B. 271), 66, 95, 
 
 122. 
 V. Carpenter (24 Conn. 427), 
 
 230, 316. 
 V. Chalker (14 Conn. 77), 234. 
 V. Deamer (6 Wend. 497), 21. 
 V. Farmers & Mechanics' Bank 
 
 (33 Vt. 252), 232. 
 V. Holcombe (32 N. H. 185), 
 
 167. 
 V. Maren (2 Col. 608), 292. 
 V. Middleton (12 C. & K. 9), 
 
 99. 
 V. Mills (15 M. & W. 85), 34, 
 
 113,89, 101. 
 ». Prater (1 Jur. 623), 17. 
 V. Rector (13 Mo. 497), 286. 
 V. Summers (38 Mich. 399), 
 
 104. 
 V. Tallmadge (2 Day (Conn.), 
 
 382), 162. 
 V. Ten Eych (2 Johns. Ch. 62, 
 
 100), 248. 
 V. Tyler (16 Pick. 171), 104. 
 V. Wing (44 111. 141), 106. 
 V. Woods (7 Blackf. 568), 286. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Hartford Mfg. Co. ». Brush (43 Vt. 
 
 528), 213. 
 Hartford Sorghum Mfg. Co. v. 
 Brush (43 Vt. 528), 213. 
 Hartford E. R. Co. v. Jackson (24 
 
 Conn. 514), 36. 
 Harth v. Gibbs (3 Rich, 316), 187. 
 V. Heddlestone (2 Day, 321), 
 277. 
 Hartley v. Decker (89 Pa. St. 470), 
 206. 
 V. Wharton (11 Ad. & El. 93), 
 19. 
 Hartman v. Blackburn (7 Pitt. Leg. 
 
 Journal, 140), 213. 
 Hartshorn v. Williams (31 Ala. 
 
 149), 228. 
 Hartop V. Hoare (3 Atk.44), 31. 
 Hart well v. Jewett (9 N. H. 249), 
 
 209. 
 Harvey v. Gibbons (2 Lev. 161), 
 301. 
 V. Harris (112 Miss. 32), 35. 
 V. McAdams (32 Mich. 472), 
 
 241. 
 ■o. Stevens (43 Vt. 653), 78, 286. 
 ■a. Vainey (98 Mass. 118), 174. 
 V. Young (Yel. 21), 187. 
 Hasbrouch v. Lounsburg (26 N. Y. 
 
 698), 85, 325. 
 Hashenav. Warren (115 Mass. 514), 
 
 85. 
 Hashlns v. Warren (115 Mass. 533), 
 
 93. 
 Haskell v. Brewer (H Me. 268) > 
 • 139. 
 
 V. McHenry (4 Cal. 411), 334. 
 
 V. McHenry (4 Cal. 411), 333. 
 
 Haskins v. Kelly (1 Rob. 160; 1 
 
 Abb. Pr. (N. s.) 63), 223. 
 
 V. Warren (115 Mass. 314), 86. 
 
 V. Warren (115 Mass. 514), 119. 
 
 V. Warren (115 Mass. 516), 121. 
 
 Hassam v. Barrett (115 Mass. 24), 
 
 228. 
 
 Hastie v. Couturier (9 Ex. 102; s.c- 
 
 6 H. L. C. 673), 50. 
 Hastings v. Dollarbide (24 Cal. 
 195), 18, 19. 
 V. Loverings (2 Pick. 214), 
 
 193. 
 V. Loverings (2 Pick. 216), 189. 
 V. Loverings (2 Pick. 219), 188. 
 V. Pepper (11 Pick. 43), 322. 
 Hatch V. Bayley (12 Cush. 27), 104,. 
 V. Bayley (12 Cush. 29), 69. 
 V. Douglass (48 Conn. 116), 
 
 302. 
 V. Lincoln (12 Cush. 31), 104. 
 V. Lincoln (12 Cush. 34), 89. 
 V. Mann (16 Wend. 44), 298. 
 V. Oil Co. (100 U. S. 131), 83. 
 V. Smith (5 Mass. 42), 175. 
 Hatcher v. Comer (73 Ga. 418), 
 
 273. 
 Hatchell v. Braddeley (2 W. 
 
 Block. 1079), 29. 
 Hatfield v. Montgomery (2 Port. 
 (Ala.) 68), 247. 
 ■<i. Phillips (9 M. & W. 467), 
 321. 
 Hathaway v. Bray man (42 N. Y. 
 322), 241, 242. 
 V. Moran (44 Me. 67), 390. 
 Haues o. Tiffany (25 Ohio St. 549), 
 
 240. 
 Haughton v. Manner (55 Mich. 
 323), 269. 
 V. Morton (5 Ir. C. L. 329), 
 75, 76. 
 Haule V. Heming (6 M. & W. 654), 
 
 211. 
 Hauman v. Mewker (13 C. B. (n. 
 
 8.), 519), 317. 
 Hause ». Judson (4 Dana, 7), 125. 
 Hauselt v. Harrison (106 U. S. 
 401), 240. 
 V. Vilmer (2 Abb. N. C. 222), 
 
 174. 
 c. Vilmer (76 N. Y. 630), 175. 
 627 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Hausen v. Boansarell (74 III. 238), 
 
 152. 
 Hauser 2>. Shore (Sired. Bq. 357), 
 
 277. 
 Hauton v. Small (3 Sandf. 230), 
 
 302. 
 Havana R. E. Co. v. Wash (85 111. 
 
 58), 196. 
 Haven v. Emery (33 N. H. 661, 230. 
 V. Hobbs(Vt. 238), 296. 
 ». Low (2N. H. 13), 238. 
 V. Place (28 Minn. 561), 128. 
 V. Richardson (5 N. H. 113), 
 175. 
 HavUand v. Johnson (7 Daly, 297), 
 
 203, 210. 
 
 Hawes v. Forster (Mood. & Rob. 
 
 368), 79. 
 
 ©.Humble (2 Camp. 327), 214. 
 
 V. Lawrence (4 N. Y. 346), 214. 
 
 V. Watson (2 B. & C. 540), 69. 
 
 Hawkesu. Hubback (L. R. 11 Eq. 
 
 5), 30. 
 Hawkins o. Chase (19 Pick. 602), 
 76, 77. 
 V. Davis (5Baxt. 688), 327. 
 ». Pemberton (51 N. Y. 198), 
 187, 189, 193. 
 Hawleyc, Foote (19 Wend. 516), 
 
 144. 
 Hawse v. Crowe (1 R. & M. 414), 
 146. 
 V. Crowe (Ryan & M.414), 168. 
 Haxall V. Willis (15 Gratt. 434), 87. 
 Haydenc. Demets (53 N. Y. 426), 
 104, 105, 333. 
 V. Demets (53 N. Y. 431), 334. 
 V. Stroughton (5 Pick. 528), 
 200. 
 Hayes v. Campbell (65 Cal. 421), 
 273. 
 V. Mouille (14 Pa. St. 48), 132, 
 Hayman v. Jones (7 Hun, 238), 240. 
 Haynes v. Crutchfleld (7 Ala. 189\ 
 169. 
 628 
 
 Haynes v. Nice (100 Mass. 327), 
 152. 
 V. Sherrer (2 Bradw. 636), 116. 
 Haynes «;. Slack (32 Miss. 193), 18. 
 Haynie v. Johnston (71 Ind. 394), 
 270. 
 ». Robertson (58 Ala. 37), 224. 
 Hays V. Mouille (14 Pa. St. 48) , 126, 
 128, 131, 135. 
 V. Mouille (14 Pa. St. 53), 130. 
 V. McClurg (4 Watts, 452), 147. 
 V. McFarban (32 Ga. 699), 296. 
 V. Stone (7 Hill, 128), 146. 
 V. Weatherman (14 Ind. 341), 
 332. 
 Hayward». Barker (52 Vt. 439), 27. 
 V. Leonard (7 Pick. 181), 209. 
 V. Scougall (2 Camp. 56), 102, 
 
 214. 
 V. White (2 Kerr, 319), 174. 
 Hazard v. Burton (4Harr. 62), 261. 
 V. Day (14 AUen, 494), 75. 
 V. Fisk (18 Hun, 227; s. c. 83 
 
 N. Y. 287), 317. 
 V. Irwin (18 Pick. 95), 160. 
 V. Loring (10 Cush. 267), 4, 
 140, 196, 228. 
 Hazelington v. Gill (3 T. E. 620, 
 
 note a), 84a. 
 Hazelton Coal Co. v. Buck Mt. 
 CoalCo. (57Pa.St.301), 
 335. 
 Heacock v. Walker (1 Tyler, 338), 
 316. 
 V. Walker (1 Tyler, 341), 311. 
 Head v. Diggon (3 M. R. 97), 40. ' 
 V. Goodwin (37 Me. 181), 231, 
 
 239, 302. 
 V. Goodwin (37 Me. 182), 61. 
 Headley v. Goundray (41 Barb. 
 
 282), 221. 
 Headrich v. Brattaln (63 Ind. 438), 
 
 52, 231. 
 Heald v. Builders' Ins. Co. (Ill 
 Mass. 38), 62, 802. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Heard v. Stamford (3 P. Wms. 
 
 409), 28. 
 Hearth ». Rhodes (66 111. 351), 145. 
 Heath v. Allen (1 A. K. Marsh. 
 442). 277. 
 V. Stevens (48 N. H. 257), 20. 
 ©.West (28 N. H. 101), 229. 
 ». wmiams (30 Ind. 495), 224, 
 
 228. 
 ,». ■Williams (30 Ind. 498), 204. 
 Heatly v. Newton (L. E. 19 Ch. D. 
 
 326), 165. 
 Hebbey Case (L. R. 4 Ex. 9), 40. 
 Heckle v. Servey (101 Mass. 344), 
 
 324. 
 Hedger v. Wallace (2 Bush. 442), 
 
 294. 
 Hedstom v. Toronto Car Wheel 
 Co. (31 Up. Can. C. P. 
 425), 215. 
 Heermance v. Vernoy (6 Johns. 5), 
 
 186, 186. 
 HefEerman v. Berry (32 Up. Can. 
 
 Q. B.518),93. 
 Hegler». Eddy (63 Cal. 597), 203, 
 
 210, 326. 
 Heiderrlch v. Leonard (21 La. Ann. 
 
 628), 297. 
 Height V. Bacon (126 Mass. 10), 
 
 190. 
 Heilbut «. Hickson (L. R. 7. C. P. 
 
 438), 197, 212. 
 Heineckey v. Earle (8 El. & B. 410), 
 
 176. 
 Heinbockle v. Zugbaum (6 Mont. 
 
 344), 326. 
 Heiskell v. Farmers', &c.. Bank (89 
 Pa. St. 226), 86. 
 V. Farmers', &c.. Bank (89 Pa. 
 St. 166), 321. 
 Helmer v. Rehm (14 Neb. 219), 260. 
 Helplenstrue v, Vincennes Nat. 
 Bank (66 Ind. 589), 99. 
 Hemans v. Newton (4 Fed. Rep. 
 880), 825. 
 
 Hemmer v. Cooper (8 Allen, 334), 
 
 166. 
 Hemphill v. McCUmans (24 Fa. St. 
 
 367), 27. 
 Hempstead v. Johnson (18 Ark. 
 
 123), 84o. 
 Henderson v. Barnewell (1 Y. & 
 Jerv. 387), 272. 
 V. Galloway (13 Allen, 462), 206. 
 V. Haye (41 N. J. L. 387), 260. 
 u. Lanck (21 Pa. St. 359), 93. 
 V. Lanck (25 Pa. St. 350), 85. 
 V. McGregor (30 Wis. 78), 21. 
 V. Pierce (9 N. E. Rep. 449), 
 175. 
 Hendrix«. Gorey (8 Oreg. 406), 234. 
 Hendricks v. Robinson (2 Johns. 
 
 Ch. 308), 175. 
 Henkel v. Pope (L. R. 2 Ex. 7), 35. 
 
 V. Welsh (41 Mich. 665), 115. 
 Henley v. Hotailing (41 Cal. 22), 
 
 224. 
 Hennequin v. Naylor (24 N. Y. 289) , 
 170, 171. 
 V. Sands (25 Wend. 640), 217. 
 Henning v. Skaggs (73 Ala. 446), 
 
 269. 
 Henry v. Patterson (57 Pa. St. 346), 
 ■ 203.- 
 V. Philadelphia Warehouse Co. 
 
 (81 Pa. St. 76), 271. 
 V. Root (33 N. Y. 526), 19. 
 V. Ritenour (31 Ind. 186), 25. 
 V. Tupper (29 Vt. 56), 219. 
 Henshaw v. Robbins (9 Met. 86), 
 188. 
 V. Robins (9 Met. 83), 167, 193, 
 
 195. 
 V. Wells (9 Humph. 568), 245. 
 Henson v. Westcott (82 111. 224), 
 
 327. 
 Hensley v. Baker (10 Mo. 157), 185. 
 Hepburn w. Auld (1 Cranch, 321), 
 140. 
 V. Griswold (8 Wall. 604), 140. 
 629 
 
TABLE OF CASES CITED. 
 
 References ar 
 
 Hepburn v. Sewall (5 H. & J. 211), 
 
 43. 
 Heron v. Davis (3 Bosw. 336), 
 
 213. 
 
 Herrick v. Ammerman (32 Minn. 
 
 544), 260. 
 
 V. Carter (56 Barb. 41), 12. 
 
 ». Brost (4 Hill, 656), 135. 
 
 Herrimon v. Shomon (24 Kan. 387), 
 
 143. 
 Herring v. Hoppock (16 N. Y. 409), 
 206. 
 V. Powell (33 Miss. 468), 84. 
 V. Skaggs (73 Ala. 446), 183, 
 
 268. 
 V. Willard (2 Sandf. 418), 206- 
 Herschorn v. Canney (98 Mass. 
 
 150), 85. 
 Henschfeldt v. George (6 Mich. 
 
 466), 174. 
 Hershy v. Latham (42 Ark. 305), 
 
 256. 
 Hersom v. Henderson (21 N. H. 
 
 224), 196. 
 Hertell v. Bogert (9 Paige, 57), 277. 
 Hervey v. R. I. Locomotive Works 
 (93 U. S. 044), 9, 325. 
 V. Locomotive Works (93 U .S. 
 664), 203,.21O. 
 Heryford v. Davis (102 U. S. 235), 
 
 203, 230. 
 Heseltlne v. Siggers (1 Ex. 856), 
 
 59. 
 Hesa V. Young (59 Ind. 379), 158, 
 
 163. 
 Hesser v. Wilson (36 Iowa, 152), 
 
 84a. 
 Hessingv. McCloskey (37 111. 341), 
 
 174. 
 Hesthal v. Myles (53Cal. 623), 84a. 
 Hestonville E. R. Co. v. Shields (2 
 
 Brewst. 257), 274. 
 Heugh V. Jones (32 Pa. St. 432), 
 
 30. 
 Hewes V. Jordan (39 Md. 484), 66. 
 630 
 
 e to Sections. 
 
 Hewison v. Guthrie (2 Bing. N. C. 
 
 755), 120. 
 Hewlett V. Cutter (137 Mass. 285), 
 
 175. 
 Hewson v. Tootle (72 Mo. 632), 84o. 
 Heyer v. Deaves (2 Johns. Ch. 
 
 154), 258. 
 Heyland ». Badger (35 Cal. 404), 
 
 221, 223, 246, 247, 248. 
 Heyman v. European, &c., R. Co. 
 (L. R. 7 Eq. 154), 163. 
 V. Neale (2 Camp. 237), 79. 
 Hey ward v. Case (2 Coke, 36), 89, 
 
 233. 
 Heywood v. Heywood (42 Me. 
 
 229), 150. 
 Heyworth v. Hutchinson (L. R. 22 
 B. 447; 36 L. J. Q. B. 
 270), 114. 
 V. Hutchinson (L. R. 2 Q. B. 
 447), 197. 
 Higgins V. Moore (36 N. Y. 417), 
 142. 
 V. Murray (4 Hun, 565), 89, 88. 
 V. Murray (73 N. Y. 252), 88, 94, 
 
 96, 333. 
 V. Murray (73 N. Y. 549), 84. 
 V. Senior (8 M. & W. 834), 73. 
 V. Weld (14 Gray, 165), 214. 
 HightB. Ripley (19 Me. 137), 56, 58. 
 V. Sackett (34 N. Y. 451), 13. 
 Hildreth v. Fitts (53 Vt. 684), 84a. 
 Hildreth v. O'Brien (10 Allen, 104), 
 
 196. 
 Hill V. Barclay (18 Ves. 56), 218. 
 V. Beele (14 N. Y. 71), 240. 
 V. Balls (27 L. J. Exch. 45), 283. 
 V. Beebe (13 N. Y. 656), 245. 
 V. Blake (97 N. Y. 216), 98, 
 
 103, 208, 209. 
 V. Bowman (35 Mich. 191), 175. 
 ■B. Chisman (59 Wis. 211), 336. 
 V. Chipman (59 Wis. 211, 218), 
 
 336. 
 V. Curley (8 Hun, 636), 168. 
 
TABLE OF CASES CITED. 
 
 References are 
 Hill «. Day (7 Stew. Ch. 150), 21. 
 V. Edwards (U Minn. 22), 227. 
 V, Frazier (22 Pa. St. 320), 270. 
 V. Freeman (3 Gush. 257), 324. 
 ». Gil man (39 N. H. 88), 239. 
 «. Hlil (1 N. J. L. 261), 332. 
 V. Loomis (42 Vt. 562), 228. 
 V. McDonald (17 Wis. 97), 67, 
 
 115. 
 V. McKenzie (3 Thomp. & C. 
 
 122), 93. 
 V. North (34 Vt. 604), 195. 
 V. Perrott (3 Taunt. 274), 168. 
 ■0. Pine Eiver Bank (45 N. H. 
 300), 174. 
 nibble white v. McMorine (6 M. & 
 W. 58), 302. 
 V. McMorine (5 M. & W. 462), 
 
 214. 
 V. Moriue (5 M. & W. 462), 51. 
 Hickman v. Cantrell (9 Yerg. 172), 
 224, 228. 
 V. Shimp (109 Pa. St. 16), 200, 
 213. 
 Hickock V. Hoyt (33 Conn. 553), 
 
 834. 
 Hickok V. Buell (51 Iowa, 665), 
 
 84a. 
 
 Hickox B. Lowe (10 Cal. 197), 224. 
 
 Hicks ». Cleveland (48 N. Y. 84), 
 
 71. 
 
 V. Gregory (8 C. B. 378), 296. 
 
 V. Skinner (71 N. C. 539), 185. 
 
 V. Williams (17 Barb. 523), 
 
 239. 
 V. Whltmore (12 Wend. 548) _ 
 
 78. 
 V. Walnturn (19 Wend. 6S0), 
 282. 
 Hiestero. Maderia (3 Watts & S. 
 
 384), 204. 
 Higgins V. BlckneU (82 HI. 602), 
 168. 
 V. Burton (26 Law J. Ex. 342), 
 317. 
 
 to Sections. 
 
 Higgins V. Burton (23 Law J. Ex. 
 32), 317. 
 V. B. R. & M. Co. (27 Cal. 158), 
 
 143. 
 V. Cheesman (9 Pick. 7), 84. 
 V. Cheesman (9 Pick. 10), 87. 
 V. Del. & Lack. E. E. Co. (51 
 N. Y. 288; 60 N. Y. 553), 
 88. 
 V. Delaware, &c., E. E. Co. 
 
 (60 N. Y. 553), 284. 
 V. Delaware R. E. Co. (60 N. 
 Y. 657), 98. 
 • ». Delaware, &c., E. E. Co. 
 
 553), 100. 
 Higham v. Harris (108 Ind. 246), 
 
 163. 
 Higgins V. Moore (34 N. Y. 418), 
 271, 272. 
 V. Moore (34 N. Y. 417), 269. 
 V. Moore (6 Bosw. 344), 269. 
 Hill V. Sloan (69 Ind. 181), 144. 
 V. Smith (32 Vt. 433), 335. 
 V. Spear (50 N. H. 253; 9 Am. 
 
 Eep. 205), 85, 95. 
 V. Spear (50 N. H. 253), 294. 
 V. Sutherland (1 Wash. (Va.) 
 128), 152. 
 Hills V. SneU (104 Mass. 173), 35, 
 288, 326. 
 V. SneU (104 Mass, 173, 177), 
 825. 
 Hillhouse v. Dunning (7 Conn. 143), 
 
 224. 
 Hilliard». Cagle (46 Miss. 300), 84a. 
 Hillman u. Wilcox (30 Me. 170), 180. 
 HinchlifEe v. Barwick (L. R. 5 Ex. 
 
 D. 177), 213. 
 Hinckley v. Avey (57 Me. 362), 
 
 .271, 272. 
 Hind V. Gray (1 Man. & G. 195), 
 
 292. 
 Hinde v. Chamberlain (6 N. H. 
 225), 296. 
 V. Gale (7 East, 538). 
 
 631 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Hinde v. Whitehouse (7 East, 588), 
 
 57, 70, 75, 76, 78, 84, 86. 
 
 Hlnde's Lessee ». Longworth (11 
 
 Wheat. 199), 174. 
 Hindman v. Dill (11 Ala. 689), 175. 
 Hine v. Klasey (9 Brad w. 166), 210. 
 V. Roberts (48 Conn. 267), 9, 
 
 203, 206. 
 V. Roberts (48 Conn. 268), 210. 
 Hlnelyo. Margitz (3 Barr. 428), 19. 
 Hinesborrough v. Sumner (9 Vt. 
 
 23), 296. 
 Hinman v. Jndson (13 Barb. 629), 
 247. , 
 
 Hlnson v. Hinson (5 Sneed, 322), 
 
 260. 
 Hlntermister v. Lane (27 Hun, 497), 
 
 325. 
 Hipwilli). Knight (1 Younge & Call. 
 
 415), 98. 
 Hirschorn v. Canney (98 Mass. 148), 
 
 217. 
 Hirshfield v. Waldron (64 Mich. 
 
 649), 142. 
 Hirshorn v. Stewart (49 Iowa, 48), 
 
 115. 
 Hoadley v. House (32 Vt. 129), 
 163. 
 V. McLaine (10 Bing. 482), 38, 
 
 47. 
 V. McLaine (4 Mo. & Scott, 
 340), 76. 
 Hoagland v. Moore (2 BlacM. 167), 
 
 332. 
 Hoak V. Linderman (64 Pa. St. 499), 
 
 325. 
 Hoare v. Parljer (2 T. R. 576), 315. 
 V. Rennie (5 H. &. N. 19; 29 
 L. J. Ex. 73), 101. 
 Hobart v. Littlefield (18 R. I. 341), 
 
 85, 95. 
 
 Hobbs V. Carr (127 Mass. 632), 104. 
 
 V. Carr (27 Mass. 532), 106. 
 
 V. Beaver (2 Ind. 142), 165. 
 
 V. Bibb (2 Stew. 54), 84a. 
 
 632 
 
 Hockster v. De La Tour ("2 El. & B. 
 
 678), 833, 98. 
 Hodgeden v. Hubbard (18 Vt. 604), 
 
 170. 
 Hodges V. Hard (47 111. 363), 238. 
 V. Kimball (49 Iowa, 577), 89. 
 V. Richmond Mfg. Co. (9 R. I. 
 
 482), 61. 
 V. Tenn. Marine Fire Ins. Co. 
 (8N. y. 416),228. 
 Hodgson V. Barrett (83 Ohio St. 
 63), 145, 168. 
 V. Barrett (83 Ohio St. 63; 31 
 
 Am. Rep. 527), 93. 
 V. Lay (7 T. R. 440), 128, 129. 
 V. LeBret (1 Camp. 233), 67. 
 Hodson V. LeBiet (1 Camp. 233), 
 114. 
 V. Warner (60 Ind. 214), 325. 
 Hoe V. Sanborn (21 N. Y. 552), 185, 
 
 187, 190. 
 Hoffman v. Anthony (6 R. I. 282), 
 260. 
 V. Carew (22 Wend. 318), 327. 
 V. Carow (22 Wend. 285), 288, 
 
 311. 
 V. Carow (20 Wend. 21), 313. 
 V. Claver (7 Bradw. 450), 87. 
 V. Gallagher (6 Daly, 42), 213. 
 V. King (58 Wis. 314), 88. 
 V. Noble (6 Met. 68), 170, 327, 
 329. 
 Hogan V. Shorb (24 Wend. 458), 
 
 273. 
 Hogel V. Lindell (10 Mo. 483), 228. 
 Hogins V. Plympton (11 Pick. 99), 
 181. 
 V. Plympton (11 Pick. 97), 189. 
 V. Plympton (11 Pick. 95), 193. 
 Hoyt V. Macon (2 Col. 502), 296. 
 Hoit V. Renrick (11 N. H. 286), 
 239. 
 V. Underbill (10 N. H. 220), 19. 
 Holbird v. Anderson (6 T. R. 235), 
 176. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Eolbrook v. Armstrong (10 Me. 
 31), 6. 
 V. Baker (5 Me. 309). 
 V. Bust (22 Pick. 546), 161. 
 V. Conner (60 Me. 578), 158, 
 
 166. 
 V. Hose (6 Bosw. 78), 130. 
 V. Vose (6 Bosw. 76), 131. 
 V. Vose (6 Bosw. 77), 134. 
 V. N. J. Zinc Co. (57 N. Y. 
 616), 319. 
 Holcombe v. Weaver (136 Mass. 
 
 265), 300. 
 Holden v. Dakin (4 Johns. 421), 
 
 1-87. 
 Holder v. Jackson (11 Up. Can. C. 
 P. 543), 165. 
 V. Jackson (11 N. C. C. P. 543), 
 285. 
 Holdrldge v. Gillespie (2 Johns. Ch. 
 30), 270. 
 V. Wells (4 Conn. 151), 139. 
 Holland v. Barnes (53 Ala. 83), 25. 
 V. Lyns (56 Ga. 56), 154. 
 V. Kea (48 Mich. 218), 102, 334. 
 V. Swain (94 lU. 154), 327. 
 HoUender v. Koelter (20 Mo. App. 
 
 79), 188. 
 Holliday v. Morgan (1 El. & E. 1), 
 
 194. 
 Hollinseed v. Mactier (13 Wend. 
 
 275), 209. 
 HoUoway v. Lowe (7 Porter, 488), 
 
 304. 
 HoUowell V. Milne (16 Kan. 65), 
 
 326. 
 Holly V. Huggeford (8 Pick. 73), 
 
 241. 
 Holman v, Johnson (1 Cowp. 341), 
 294. 
 V. Johnson (Cowp. 348), 294. 
 V. Lock (51 Ala. 287), 230, 325. 
 Holmes v. Crane (2 Pick. 606), 323. 
 V. Grant (8 Paige Ch. 243), 204. 
 V. Hall (8 Mich. 66), 222. 
 
 Holmes v. Hinkle (63 Ind. 618), 233, 
 
 284. 
 
 V. Hoskins (9 Ex. 763), 69. 
 
 V. Sprowl (31 Me. 73), 239, 241. 
 
 o. Wilson (10 A. & E. 5037), 43. 
 
 Holroyd v. Marshall (10 H. L. C. 
 
 191), 53. 
 Hoist D Powuall (1 Esp. 40), 129. 
 Holt V. Brown (63 Iowa, 619), 98. 
 Holt o. Clarencieux (2 Stra. 837), 
 18. 
 B.Holt (68 Vt.277), 206. 
 V. O'Brien (15 Gray, 311), 292. 
 Holton V. Goodrich (35 Vt. 19), 208. 
 Hoyt V. Macon (2 Col. 602), 292. 
 Home Lightning Rod Co. v. Nefi 
 
 (60 Iowa, 138), 188. 
 Homesley v. Hague (4 Jones, 481), 
 311. 
 ». Hogue (4 Jones (N. C), 431), 
 314. 
 Homer v. Ashford (3 Bing., 323) j 
 303. 
 V. Crane (2 Pick. 607), 238. 
 V. Life Ins. Co. (67 N. Y. 478), 
 
 196. 
 V. Perkins (124 Mass. 431), 158, 
 166, 167, 172. 
 Honeyman v. Marryatt (6 H. L. C. 
 
 112), 33. 
 Honneger v. Wettstein (15 J. & S. 
 
 126), 294. 
 Honore v. Colmesnil (1 J. J. Marsh. 
 523), 149. 
 -J. Hutchings (8 Bush, 687), 224. 
 Hooben v. Bid well (16 Ohio, 509), 
 
 84. 
 Hook V. Pratt (78 N. Y. 371), 296. 
 V. Stovall (21 Ga. 69), 194. 
 V. Turner (22 Mo. 333), 169. 
 Hooker v. Jarvis (6 Up. Can. Q. B. 
 
 (o. s.) 439), 174. 
 Hooper v. Keay (1 Q. B. Div. 178), 
 162. 
 V. Stasburger (37 Md. 390), 163. 
 633 
 
TABLE OF CASES CUED. 
 
 Beferences are to Sections. 
 
 Hoover v. Peters (13 Mich. 57), 191. 
 
 V. Tibbetts (13 Wis. 79), 130. 
 Hope V. Hayley (5 E. & B. 830; 25 
 L. J. Q. B. 155),51. 
 V. Lawrence (1 Hun, 317), 274. 
 Hopegood V. Shaw (106 Mass. 276), 
 
 207. 
 Hopkins V Grinnell (28 Barb. 533), 
 185. 
 V. Sanford (41 Mich. 243), 335. 
 V. Tanqueary (1 C. B. 130), 
 187. 
 Hopklrk V. Bell (13 Cranch, 454), 
 
 271. 
 Hopson V. Boyd (6 B. Mon. 296), 
 
 21. 
 Horace v. Keebler (5 Neb. 358), 
 
 308. 
 Horn V. Batchelder (41 N. H. 86), 
 
 332. 
 Hornbeck v. Van Metre (9 Ohio, 
 
 153), 84a. 
 Horncastle v. Farran (3 Barn. & 
 
 Aid. 497), 120. 
 
 Horner v. Graves (7 Bing. 736), 303. 
 
 303, 
 
 V. Stout (5 Call. 166), 238. 
 
 Home V. Planters' Bank (32 Ga. 1), 
 
 152. 
 Horr V. Barker (8 Cal. 603), 82, 88. 
 V. Barker (8 Cal. 609), 105. 
 V. Barker (11 Cal. 393), 317, 
 
 273. 
 
 V. Baker (8 Cal. 613), 122. 
 
 Harris v. Hart (6 Duer, 606), 132. 
 
 Harriss©. Hart (6 Duer, 627), 134. 
 
 Horsey v. Horsey (4 Harr. 517), 
 
 200. 
 Horsfall v. Thomas (1 Hurl & C. 
 
 90), 167. 
 Hart V. Burton (7 J. J. Marsh. 
 
 322), 222. 
 Horton v. Bufflu£;ton (105 Mass. 
 399), 293, 308. 
 V. Green (66 N. C. 596), 193. 
 634 
 
 Horton v. McCarty (53 Me. 394), 
 
 78, 286. 
 Hortons ». Townes (6 Leigh, 47); 
 
 268. 
 V. Williams (21 Minn. 187), 240. 
 Hortsman v. Gerker (49 Pa. St. 
 
 282). 
 Hosack V. Weaver (1 Yeates, 478), 
 
 311. 
 Hosker v. Dement (9 Gill, 7), 324. 
 Hoskins v. Johnson (5 Sneed, 469), 
 
 142. 
 Hosley v. Scott (22 N. W. Eep. 
 
 (Mich.) 659), 332. 
 Hosmer v. Sargent (8 Allen, 97), 
 
 250, 281. 
 0. Wilson (7 Mich. 294), 338. 
 Hotchin». Secor(8Mich. 494), 146. 
 Hotchkiss V. Clifton Air Cure (2 
 
 Abb. App. 406), 284. 
 V. Higgins (62.Conn. 205), 213, 
 
 325. 
 V. Hunt (49 Me. 219), 326. 
 Hauck V. Muller (L, R. 7 Q. B. D. 
 
 92), 103. 
 Hough V. Bailey (32 Conn. 288), 
 
 234, 277. 
 V. Evans (4 McCord, 169), 167. 
 V. Richardson (3 Storj, 691), 
 
 160. 
 V. Richardson (3 Story, 659), 
 
 167. 
 Houghworth v. Boisanbin (18 N. J. 
 
 Eq. 315), 99. 
 Houldsworth v. City of Glasgow 
 
 Bank (L. R. 6 App. Cas. 
 
 317), 173. 
 Hoult V. Baldwin (67 Cal. 610), 193. 
 Houmbhaer v. Birch (83 Pa. St. 
 
 426), 185. 
 Hous V. Ward (4 Greenl. 195), 174. 
 House V. Alexander (2 Met. 157), 
 
 144. 
 Household Fire Ins. Co. ». Grant 
 
 (4 Ex, D. 219), 42. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Houser v. Comp (3 Pa. St. 208), 204. 
 House V. Fort (4 Blackf. 294), 193. 
 Houser v. Kemp (3 Pa. St. 208), 4. 
 V. Lamont (65 Pa. St. 311), 227. 
 Household Fire Ins. Co. v. Grant 
 
 (4 Ex. D. 216), 40. • 
 Houston«. Dryche (Meigs, 76), 324. 
 ». Gilbert (3 Brev. 63), 182. 
 V. Howard (39 Vt. 64), 84o. 
 Houston, &c., B. B. Co. v. Mitchell 
 (38 Tex. 86), 212. 
 ». Hill (63Tex. 381),326. 
 Hovey v. Chase (52 Me. 304), 21. 
 V. Hobson (53 Me. 451), 22. 
 V. Hobson (55 Me. 256), 21. 
 Howe. Vigures (1 Eep. Ch. 32), 221, 
 Howard v. Broden (13 Allen, 299), 
 64. 
 ». Castle (6 T. B. 642), 166, 285. 
 V. Daly (61 N. Y. 362), 39. 
 V. Emerson (110 Mass. 321), 
 
 191. 
 V. Fessenden (14 Allen, 124), 
 
 59. 
 V. Gould (28 Vt. 623), 167, 171. 
 V. Harris (8 Allen, '297), 12, 
 
 308. 
 V. Hoey (23 Wend. 350), 188, 
 
 190. 
 V. Jones (33 Mo. 583), 144. 
 V. McCall (21 Gratt. 205), 152. 
 ». Shepperd (19 L. J. C. B, 
 48), 321. 
 Howland ». Harris (4 Mason, 497), 
 
 214. 
 
 Howatt B.Davis (5 Munf. 34), 137. 
 
 Howe V. Batchelder (49 N. H. 204), 
 
 69. 
 
 V. Hayward (108 Mass. 54), 71. 
 
 V. Huntington (15 Me. 360), 
 
 113, 207. 
 V. Keeler (27 Conn. 638), 230. 
 Howe Machine Co. v. Bryson (44 
 Iowa, 169), 336. 
 V. Willie (85 111. 333), 210. 
 
 Howe V. Palmer (3 B. & Aid. 321), 
 69. 
 V. Ward (4 Greenl. 195), 174. 
 Howell ». Biddlecorn (62 Barb. 131), 
 167. 
 V. Pugh (27 Kan. 702), 88. 
 Howes V. Lawrence (4 Comst. 345), 
 
 214. 
 Howland v. India Ins. Co. (131 
 Mass. 255), 275. 
 V. Wells (9 N. Y. 173), 255. 
 V. Woodruff (60 N. Y. 73), 317. 
 Hoxie V. Lincoln (25 Vt. 206), 18. 
 Hoy V. Grenoble (34 Pa. St. 9), 336. 
 Hoyt V. Byrnes (11 Me. 475), 140. 
 V. Casey (114 Mass. 397), 17. 
 V. Hartford Ins. Co. (26 Hun, 
 416)3 88. 
 Hubbard v. Bliss (12 Allen, 590), 
 85. 
 V. Bugbee (53 Vt. 506), 27. 
 V. George (49 111. 275), 116, 
 
 188, 197. 
 V. Moore (24 La. Ann. 591), 
 
 294. 
 V. EoweU (61 Conn. 423), 336. 
 V. Sava!;e (8 Conn. 215), 234. 
 Hubbell e. Flint (16 Gray, 550), 152. 
 Hubbersty v. Ward (18 Eng. L. Eq. 
 
 551), 323. 
 
 Hubby V. Hubby (5 Gush. 516), 237. 
 
 Hubert v. Moreaw (12 Moore C. P. 
 
 216; 2 C. & P. 528), 77. 
 
 Hubert v. Freherne (3 M. & G. 743), 
 
 77. 
 Huck 1;. Miller (L. E. 7Q.B.D.92), 
 
 208. 
 Hudgens v. Jackson (51 Ala. 614), 
 
 260. 
 Hudgins v. Perry (7 Ired. 102), 
 
 195. 
 Hudnal v. Wilder (4 McCord, 297), 
 
 174. 
 Hudson ». Isabelle (5 St. &P. 67), 
 224, 228. 
 
 635 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Hadsoa v. Warner (2 Har. & G. 
 
 415), 240. 
 
 V. "Weir (28 Ala. 294), 59, 205. 
 
 HuffB. Bouverell (48 Ga. 338), 17. 
 
 V. McCauley (63 Pa. St. 206), 59. 
 
 Hurff V. Hires (39 N. J. L. 4; 40 N. 
 
 J. L. 681), 88. 
 Huge V. Gallana (10 Phila. 618), 
 
 168. 
 Huggans v. Fryer (1 Lans 276), 
 
 241, 248. 
 Hughes V. Bray (60 Cal. 284), 188. 
 V. Case (4 Ct. of CI. 64, 73), 
 
 333. 
 V. Cory (20 Iowa, 399), 84a. 
 V. Edwards (9 Wheat. 489), 
 
 218, 234. 
 V. Edwards (9 Wheat. 500), 
 
 221. 
 V. Funston (23 Iowa. 269), 
 
 180. 
 V. Graves (1 Lltt. 317), 831. 
 V. Israel (73 Mo. 588), 144. 
 V. Kelly (40 Conn. 148), 325. 
 V. Monty (24 Iowa, 499), 174. 
 o. Sheaff (19 Iowa, 335), 224. 
 V. Sloan (2 Ark. 146), 162. 
 V. Stanley (45 Mich. 622), 7. 
 V. United States (4 Ct. of CI. 
 
 64), 116. 
 V. Washington (72 HI. 84), 272. 
 V. Watts (26 Ark. 228), 260. 
 V. Wheeler (8 Cow. 77), 144. 
 V. Worley (1 Bibb. 200), 234. 
 Haguley v. Norris (65 Ga. 666), 
 
 269, 183. 
 Hurd V. Robinson (11 Ohio St. 232), 
 
 234. 
 Huhns V. Gates (92 Ind. 66), 290. 
 Hulble V. Flint (13 Gray, 277), 294. 
 Hulet V. Stratton (6 Cush. 639), 
 
 308. 
 Hull V. Hull (48 Conn. 250), 302. 
 V. Jones (69 Mo. 689), 269. 
 V. Buggies (66 N. Y. 425), 294. 
 636 
 
 Hull V. Sigsworth (48 Conn. 268), 
 
 106. 
 HuUock V. Blacklowe (2 Saund. 
 
 156), 303. 
 Hulme V. Tenant (1 Bro. C. C. 
 
 16), 30. 
 Hulson V. Walter (34 How. Pr. 
 
 385), 221, 246, 248. 
 Hulton V. Moore (26 Ark. 382), 46, 
 
 46. 
 Humaston v. Am. Tel. Co. (20 
 
 Wall. 20), 45. 
 Humble v. Mitchell (11 A. & E. 
 
 205), 69. 
 Humfrey v. Dale (7 E. & B. 266; 
 
 E. B. & E. 1004; 26 L. 
 
 J. Q. B. 137), 27 L. 
 Humphrey v. Buisson (19 Minn. 
 
 182), 253. 
 V. Dale (7 E. & B. 266; E. B. & 
 
 E. 1004; 26 L. J. Q. B. 
 
 137; 27 L.J. Q. B. 890), 
 
 73. 
 V. Cornline (8 Blatchf. 516), 
 
 187, 191. 
 V. Clement (44 111. 499), 143. 
 V. Haskell (7 Allen, 498), 172. 
 Humphreysville, &c., Co. v. Ver- 
 mont, &c., Co. (33 Vt. 
 
 92), 336. 
 Humphries v. Bartee (10 Sm. & M. 
 
 282), 228. 
 V. Carvallo (16 East, 45), 213. 
 Hunaston v. Am. Tel. Co. (20 
 
 Wall. 20), 46. 
 Hundley v. Webb (3 J. I. Marsh. 
 
 643), 84o. 
 Hungate v. Reynolds (72 111. 425), 
 
 248, 250. 
 Hunger ». Evans (38 Ark. 334), 
 
 187. 
 Hunt V. Bay State Iron Co. (97 
 
 Mass. 279), 230. 
 V. Bell (7 J. B. Moore, 212), 
 
 301. 
 
TABLE OF CASES CITED. 
 
 References are 
 
 Hunt V. Beeson (18 Ind. 382), 200. 
 V. Boyd (2 La. 109), 144. 
 V. Bullock (23 lU. 820), 231, 
 
 232, 233. 
 V. Daniels (15 Iowa, 146), 246. 
 V. Gregg (8 Blackl. 586), 286. 
 V. Hecht (8 Ex. 814; 22 L. J. 
 
 Ex. 293), 66,68. 
 V. Hecht (8 Ex. 814), 65. 
 w. Massey (5 Born & Ad. 902), 
 
 19. 
 V. Peake (5 Cow. 485), 18. 
 V. Philadelphia (34 Pa. St. 277), 
 
 281. 
 V. Sackett (31 Mich. 18), 186. 
 0. Shackleford (56 Miss. 397), 
 
 233. 
 V. Thurman (15 Vt. 336; 40 
 
 Am. Dec. 683. 
 V. Thurman (15 Vt. 336), 84. 
 V. Wyman (100 Mass. 198), 5, 
 
 213. 
 V. Wyman (100 Mass. 100), 3. 
 Hunter i;. Bosworth (43 Wis. 583), 
 
 61, 53, 231, 232. 
 V. Gidding (97 Mass. 41), 73. 
 V. Hudson River Co. (29 Barb. 
 
 493), 173. 
 V. Hudson River Iron Co. (20 
 
 Barb. 494), 168. 
 V. Jameson (6 Ired. 252), 183, 
 
 273. 
 V. Jameson (6 Ired. 232), 269. 
 V. Lawrence (11 Gratt. Ill), 
 
 277. 
 V. More (98 Pa. St. 13), 144. 
 V. Wolf (71 Pa. St. 382), 300. 
 V. Talbot (3 Smed & M. 754), 
 
 120. 
 V. Warner (1 Wis. 141), 206. 
 V. Wetsell (57 N. Y. 375), 84 N. 
 
 y. 644), 71. 
 V. Wetsell (17 Hun, 135), 71. 
 V. Wetsell (84 N. Y. 549; 38 
 
 Am. Rep. 544), 96. 
 
 to Sections. 
 
 Hunter v. Wetsell (84 N. Y. 549), 
 71, 84, 94, 333, 334. 
 V. Wright (12 Allen, 648), 85, 
 89, 95, 95a. 
 Huntington v. Chisholm (61 Ga. 
 270), 88. 
 V. Knox (7 Cush. 371), 273. 
 Huntingdon v. Hall (36 Me. 601), 
 
 186. 
 Huntley w. Rice (10 East, 22), 301. 
 V. Whittier (105 Mass. 391), 
 164. 
 Hurau v. Kanouse (13 Mich. 803), 
 
 246. 
 Hurd V. Cook (75 N. Y. 454), 83. 
 V. Fleming (34 Vt. 169), 326. 
 V. Gallegher (14 Iowa, 394), 
 
 233. 
 V. West (7 Cow. 752), 6. 
 Hurff V. Hires (39 N. J. L. 4; 40, 
 . N. J. L. 581), 82. 
 V. Hires (40 N. J. L. 581), 205. 
 Hurford v. Horned (6 Greg. 362), 
 
 228. 
 Hurley v. Buchi (10 Lea, 346), 336. 
 Hurst V. Bell (72 Ala. 336), 62. 
 Hurt V. Stall (4 Md. Ch. 393), 258. 
 
 V. Redd (64 Ala. 86), 233. 
 Hussey v. Crickell (3 Campb. 168), 
 
 301. 
 Hussman, la re (2 N. Bank Rep. 
 
 437), 240. 
 Hustin V. McCloskey (76 Ind. 38), 
 
 158. 
 Huston B. Cantril (11 Leigh, 176), 
 174. 
 V. Weber (3 T. & C. 147; 7 
 Hun, 120), 148. 
 Hutchings v. Munger (41 N. Y. 
 
 165), 217. 
 Hutchins v. Hebbart (34 N. Y. 24), 
 196. 
 V. Munger (41 N. Y. 155), 210. 
 V. Nunes (Moo. P. C. (N. s.) 
 243), 126. 
 
 637 
 
TABLK OF CASES CITED. 
 
 Beferences are to Sections. 
 
 Hutchlns V. Olcutt (4 Vt. 549), 
 
 144. 
 Hutchine v. State Bank (12 Het. 
 421), 277. 
 V. Blakinan (3 Met. (Ky.) 80), 
 
 34. 
 V. Bowker (5 M. & W. 635), 33, 
 
 34. 
 V. Bours (6 Cal. 383), 273. 
 V. Bows (6 Cal. 385), 317. 
 V. Cassidy (46 Mo. 431), 259. 
 V. Ford (9 Bush, 318), 52, 231. 
 V. Gordon (2 Harr 179), 283. 
 V. Hunter (7 Pa. St. 140), 82, 
 
 88. 
 V. Watkins (17 Iowa, 475), 327. 
 Hutchlsoa V. Blakeman (3 Met. 
 (Ky.)80),39. 
 V. Fatham (L. R. 8 C. B. 482), 
 73. 
 Hutmacher v. Harris (38 ^a. St. 
 
 491), 1, 35. 
 Hutton V. Arnett (51 111. 198), 233. 
 V. Williams (35 Ala. 503), 256. 
 Hyatt». Boyle(5 Gill. & J. 110), 187, 
 189, 214. 
 V. Boyle (5 Gill. & J. 121), 197. 
 Hyde ». Cookson (21 Barb. 92), 6. 
 V. Ellery (18 Md. 496), 329. 
 V. Lathrop (2 Abb. App. Gas. 
 
 436), 87. 
 V. Noble (13 N. H. 494), 316, 
 
 324. 
 V. Price (3 Ves. Jo. 443), 29. 
 V. Wrencli (3 Beav. 334), 36. 
 Hydraulic Engineering Co. v. Mc- 
 Haffe (L. E. i Q. B. D. 
 670; 20 Bng. Rep. 102), 
 100. 
 Hyer v. Hyatt (Cranch, C. C. 276), 
 
 17, 18. 
 Hymau v. Cain (3 Jones (n. c.) 
 
 Ill), 17. 
 Hynder v. Hayes (26 B. Men. 31), 
 292. 
 638 
 
 Hyslop V. Clarke (14 Johns. 469), 
 176. 
 V. Clark (14 Johns. 465), 292. 
 
 I. 
 
 Ida V. Stanton (16 Vt. 686), 56, 75, 
 
 76. 
 Idle V. Thornton (3 Camp. 274), 214. 
 Ijams V. Hoffman (1 Md. 435), 78. 
 Ilsley V. Merriam (7 Cash. 242), 
 
 273. 
 V. Stubbs (9 Mass. 65), 126, 
 
 133. 
 imboden v. Hunter (23 Ark. 622), 
 
 250. 
 Imhoffer v. Whitmer (21 Pa. St. 
 
 243, 253. 
 Imhoff V. Whitmore (7 Casey (Pa.) 
 
 243), 21. 
 Imlay c. Huntington (20 Conn. 176), 
 
 30. 
 Imperial Bank v. London, etc., 
 Dock Co. (L. R. 5 Ch. D. 
 
 195), 126. 
 Independent Ins. Co. v. Thomas 
 
 (104 Mass. 192), 143. 
 Indiana, &c.. Bank v. Colgate (4 
 
 Daly, 41), 85, 321. 
 Indianapolis, &c., R. R. Co. v. Ma- 
 
 guire (62 Ind. 140), 333. 
 ^. Tyng (63 N. Y. 663), 173. 
 Ing V. Brown (Md. Ch. 521), 228, 
 
 239. 
 Ingallsu. Herrick (108 Mass. 351), 
 
 106. 
 V. Henick (108 Mass. 351), 84a, 
 
 104. 
 Inge 0. Bond (3 Hawks, 101), 85. 
 Ingle V. Hartman (37 Iowa, 274), 
 
 270. 
 Inglebright v. Hammond (19 Ohio, 
 
 337), 7. 
 Ingraham v. Disborrough (47 N. Y. 
 
 421), 246. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Ingraham v. Geyer (13 Mass. 156), 
 
 175. 
 V. Wheeler (6 Conn. 277), 174, 
 
 175. 
 Inkington v. Elchery (41 N. H. 275) , 
 
 8». 
 Inman v. Western Ins. Co. (12 
 
 Wend 452), 212. 
 Insleec. Lane (57 N. H. 451), 126, 
 
 130. 
 Insurance Co. v. Keed (33 Ohio St. 
 
 283), 158. 
 Insurance v. Kiger (103 U. S. 362), 
 
 317. 
 International Pavement Co. v. 
 
 Smith(17 Mo. App. 264), 
 
 182. 
 Iowa Co. V. Foster (49 Iowa, 676) , 
 
 146. 
 Irbyi). Irby (11 Lea, 165), 263. 
 Ireland v. Livingston (L. R. 2 Q. B. 
 
 99; B. R. 6, Q. B.516; L. 
 
 R. 5 H. L. 395), 103, 214. 
 Ironcliffs Co. v. Buhl (42 Mich. 
 
 86), 88. 
 V. Buhl (24 Mich. 86), 101. 
 Irons V. Kcntner (51 Iowa, 88), 6. 
 V. Smallpiece (2 B. &Alk. 551), 
 
 11. 
 Irvine v. Irvine (9 Wall. 617), 18. 
 
 V. Stone (6 Gush. 508), 61. 
 Irving V. Motley (7 Bing. 543), 327. 
 Irwin V. Thompson (27 Kan. 643), 
 
 196. 
 V. Williar (110 U. S. 499), 272. 
 Isaac V. Andrews (2 U. C. C. P. 
 
 40), 7. 
 V. Andrews (28 Up. Can. C. P. 
 
 40), 6. 
 V. N. y. Plaster Works (69 N. 
 
 Y. 124), 201. 
 Isaacs V. Plaster Works (67 N. Y. 
 
 124), 100. 
 Isler V. Andrews (66 N. C. 652), 
 
 268. 
 
 Isley V. Stewart (4 Dev. & B. 160), 
 
 283. 
 Ives V. Ashley (97 Mass. 198), 277. 
 
 V. Carter (24 Conn. 403), 166. 
 
 V. Hartley (51 III. 620), 7. 
 
 V. Fregent (29 Mich. 390), 283. 
 Ivory V. Murphy (36 Mo. 534), 76. 
 
 J. 
 
 Jack V. Des Moines E. E. Co. (53 
 
 Iowa, 399), 197. 
 Jackman c. Nowling (69 Ind. 188), 
 
 256. 
 Jackson v. AUoway (6 Man. & G. 
 
 942), 113. 
 V. Blodgett (5 Cow. 305), 245. 
 u. Bowen (2 Cow. 13), 234), 
 
 246. 
 u. Cadwell (1 Cow. 641), 314. 
 V. Catlin (2 Johns. 248), 286. 
 V. Collins (39 Mich. 557), 159, 
 
 161. 
 V. Collins (3 Cow. 89), 258. 
 V. Covert (5 Wend. 139), 56. 
 V. Dean (1 Dougl. (Mich.) 619), 
 
 84a. 
 V. Ducharie (3 T. R. 551), 306. 
 ■V. Fianey (33 Ga. 512), 296. 
 V. Garnsey (16 Johns. 189), 174. 
 V. Gumaer (2 Cow. 562), 21. 
 V. Hall (84 N. C. 489), 241. 
 ■u. Henry (10 Johns. 185), 174. 
 V. Hopkins (18 Johns. 487)^ 
 
 245. 
 Jackson Ins. Co. u. Partee (9 Heisk. 
 
 296), 273. 
 Jackson v. Langston (61 Ga. 392), 
 
 182. 
 K. Lowe & Lyman (1 Bing. 9), 
 
 75. 
 V. Mather (7 Cow. 301), 174. 
 V. Mlnkler (10 Johns. 480). 
 V. Morter (82 Pa. St. 291) ^ 
 
 168. 
 
 639 
 
TABLK OF CASES CITKD. 
 
 References are to Sections. 
 
 Jackson v. Saunders (1 Schouler 
 &L. 461), 100, 
 V. Tapper (30 Hun, 220), 71. 
 V. Watts (1 McCord, 288), 69. 
 V. Wetherlll (7 Serg. & E. 480), 
 
 187. 
 V. Willard (4 Johns. 41), 221. 
 Jacob V. Kirk (2 M &R. 222), 76. 
 Jacob's Appeal (23 Pa. St. 477), 
 
 277. 
 Jacobs o. Richards (12 Beav. 300), 
 
 21. 
 Jacoby v. Schwartzwelder (1 Bibb. 
 
 430), 96. 
 Jaffrey v. Brown (74 N. Y. 393), 
 
 296. 
 Jaffrey v. Cornish (10 N. H. 505), 
 
 744. 
 Jagger Iron Co. v. Walker (76 N. 
 
 T. 521), 144. 
 James «. Adams (16 W. Va. 245), 
 333. 
 t. Adams (16 W. Va. 267), 833. 
 James' Appeal (89 Pa. St. 54), 271. 
 James v. Bird's Admr. (8 Leigh, 
 510), 121. 
 V. Socage (45 Ark. 284), 181. 
 V. JFulerad (5 Tex. 512), 169. 
 V. Lichfield (L. E. 9 Eq. 51), 
 
 158. 
 V. Mechanics' Bank (12 R. D. 
 
 460), 175. 
 V. Morey (2 Cow. 246, 293), 
 
 234. 
 V. Morgan (1 Lev. Ill), 218. 
 V. Muir (33 Mich. 224), 47, 76. 
 ■u. McCredie (1 Bay, 294), 273. 
 u. Patten (6 N. Y. 9), 77. 
 V. Taylor (43 Barb. 530), 29. 
 Jameson v. Bruce (6 G. & J. 72) , 
 241. 
 V. Gregory (4 Met. (Ky.) 363), 
 
 5, 213, 325. 
 V, Gregory (4 Met. (Ky.) 363), 
 294, 308. 
 640 
 
 Jameson v. King (50 Cal. 132), 174. 
 Jandon v. Nat. Bank (8 Blatchf. 
 
 430), 277. 
 Janney O.Boyd (30Minn. 319), 142, 
 
 269. 
 V. Slepper (30 Minn. 473), 85, 
 
 95. 
 Janvin v, Fogg (49 N. H. 340) 223, 
 
 226. 
 V. Fogg (49 N. H. 351), 238. 
 V. Maxwell (23 Wis. 51), 69. 
 Jarchow v. Pickens (51 Iowa, 381), 
 
 244. 
 Jardine, Ex parte (10 L. E. Oh. App. 
 
 322), 233. 
 Jarratt v. McDaniel (32 Aik. 698), 
 
 234. 
 Jarvis v. Peck (1 HofE. Ch. 479), 
 
 303. 
 Jeckell V. Fried (18 La. An. 192), 
 
 120. 
 Jeffcott V. N. B. Oil Co. (8 Ir. E. C. 
 
 L. 17), 76. 
 Jefferson v. Barkto (1 Bradw. 568) i 
 
 248. 
 Jeffrey v. Bigelow (13 Wend. 518), 
 
 163, 173, 271. 
 Jeffery v. Walton (1 Stark. 213), 
 
 196. 
 Jeffries v. Wiester (2 Sawy. 135), 
 
 270. 
 Jelk V. Barrett (52 Miss. 315), 75. 
 Jemmison v. Gray (29 Iowa, 537), 
 
 335. 
 Jemison v. Woodruff (34 Ala. 143), 
 
 163. 
 Jencks v. Goff (1 E. I. 511), 243. 
 
 V. Smith (1 N. Y. 90), 230. 
 Jenking v. Brown (15 Q. B. 496), 
 
 85. 
 V. Bichelberger (4 Watts, 121), 
 
 6, 121. 
 V. Frink (30 Cal. 586), 169. 
 Jeneckes v. GofEe (1 R. I. 511), 
 
 231. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Jenkins v. Hogg (2 Const. (S. C.) 
 
 821"), 165. 
 
 V. Jenkins (.12 Iowa, 195), 18. 
 
 V. Reynolds (3 B. & B. 14), 76. 
 
 Jensen v. Weinlander (25 Wis. 
 
 477), 260. 
 Jenkyns v. Brown (14 Q. B. 496; 19 
 L. J. Q. B. 286), 85, 95. 
 V. Usborne (7 Man, & G. 678), 
 126, 317. 
 Jenness v. Howard (6 Blackf. 240), 
 25. 
 V. Mt. Hope Iron Co. (53 Me. 
 
 20), 34, 38. 
 V. Wendell (51 N. H. 63), 61. 
 Jennings v. Broughton (5 De Gex. 
 M. &G. 126), 158. 
 V. Brown (9 M. & W. 496), 296. 
 i). Flanagan (5 Dana, 217), 87. 
 V. Gage (13 111. 610), 163, 310, 
 
 312, 325. 
 V. Gratz (3 Rowle, 166), 188, 
 
 189. 
 V. Hart (1 Russ. & Ches. 15), 
 
 165. 
 V. Merrill (20 Wend. 9), 317. 
 V. Throgmorton (Ry. & M. 25), 
 305. 
 Jennison v. Hapgood (7 Pick. 1, 8), 
 277. 
 V. Hapgood (10 Pick. 77), 277. 
 V. Parker (7 Mich. 355), 148. 
 Jervise v. Clark (1 J. & W. 392), 
 
 285. 
 Jeter v. Fellowes (32 Pa. St. 465), 
 
 239. 
 Jewett V. Carter (132 Mass. 335), 
 173. 
 V. Cook (81 111. 260), 174. 
 Jewett V. Earl (21 Jones & Sp.349), 
 140. 
 V. Gayer (38 Vt. 209), 265. 
 V. Pleak (43 lad. 368), 144. 
 V. Preston (27 Me. 400), 234, 
 237. 
 
 Jewett V. Warren (12 Mass. 300), 
 
 104, 105, 106. 
 Jezeph V. Ingram (8 Taunt. 838), 
 
 84a. 
 Johassohn v. Toung (4 Best & 
 
 Smith, 296), 208. 
 Johnson v. Church (12 Pick. 657), 
 
 234. 
 Johns II. Fritchey (39 Md. 258), 25. 
 Johnson V. Allen (78Ala.387;56Ain. 
 
 Rep. 34), 103. 
 V. Allen (78 Allen, 387), 335 
 V. Babcock (8 Allen, 583), 314. 
 V. Brooks (93 N. Y. 337), 337. 
 V. Brown (37 Iowa, 200), 7. 
 V. Brown (13 Kan. 529), 308. 
 ti. Buck (35 N. J. L. 338), 57, 
 
 286. 
 V. Buck (35 N. J. L. 339), 75. 
 V. Buck (35 N. J. L. 342), 78. 
 V. Carpenter (7 Minn. 176), 
 
 246. 
 V. Clark (5 Ark. 222), 228. 
 V. Cleves (15 N. H. 332), 146. 
 V. Craig (21 Ark. 533), 268. 
 V. Credit Lyonnaise (2 C. P. 
 
 Div. 224), 317. 
 V. Crofool (53 Barb. 674; 37 
 
 How. Pr. 69), 222. 
 V. Cuttle (105 Mass. 447), 65. 
 V. Dickinson (78 N. Y. 42), 
 
 120. 
 0. Dodgson (2 M. •& W. 653) , 
 
 76, 95, 122. 
 V. Dodgson (2 M. & W. 656), 
 
 65. 
 V. Eason (3 Ired. Eq. 330), 
 
 285. 
 V. Farnman (56 Ga. 144), 121, 
 
 175. 
 V. Filkington (39 Wis. 62), 33. 
 B.Hall (6Cal. 359), 301. 
 V. Harder (46 Iowa, 677), 45. 
 V. Hart (3 Johns. 322), 245. 
 V. Holloway (82 111. 334), 106. 
 41 641 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Johnson v. JefEries (30 Mo. 423), 
 
 240. 
 V. Johnson (30 Ga. 857), 152. 
 V. Johnson (2 Itill, Ch. 277), 
 
 277. 
 V. Klab (3W. N. C. (Pa.) 273), 
 
 306. 
 V. Laflin (103 U. S. 800), 319. 
 V. La Motte (6 Rich. Eq. 347), 
 
 169. 
 V. Lancashire, &c.. By. Co., 
 
 (3 C. P. D. 499), 89. 
 V. Lines (6 Watts & S. 80), 17. 
 V. Lousley (12 C. B. 468), 301. 
 V. Monell (2 Abb. App. 470), 
 
 170, 171. 
 V. McDonald (9 M. & W. 600), 
 
 214. 
 V. McGruder (16 Mo. 365), 269. 
 V. McLane (7 Blackf. 501), 5, 
 
 213. 
 V. Ogilby (3 P. Wms. 272), 296. 
 V. Patterson (2 Woods, 443), 
 
 231, 239. 
 V. Phoenix Ins. Co. (112 Mass. 
 
 49), 212. 
 V. Pie (1 Keb. 913j 1 Lev. 169), 
 
 168. 
 0. Powell (9 Ind. 566), 334. 
 V. Powers (65 Cal. 181), 187. 
 V. Raylton (72 B. D. 438 C. P.), 
 
 35. 
 V. Eussell (37 Cal. 670), 301. 
 V. Simpson (77 Ind. 412), 241. 
 V. Smith (39 Iowa, 649), 228. 
 V. Stevenson (26 Mich. 63), 34. 
 V. Stoddard (100 Mass. 300), 95 
 V. Stoddard (100 Mass. 306), 89. 
 V. Trinity Church (11 Allen, 
 
 123), 74, 75. 
 V. TTnderhill (62 N. Y. 203), 319. 
 V. Usbome (11 Ad. & El. 649), 
 
 273. 
 V. Vernon (1 Bailey, 627), 248. 
 V. Weed (9 Johns. 310), 144. 
 fi42 
 
 Johnson v. White (21 Miss. 484), 
 
 324. 
 V. Whittemore (27 Mich. 463), 
 
 210. 
 V. Whitwell (7 Pick. 74), 175. 
 V. Willis (7 Gray, 164), 163, 293, 
 
 308. 
 Johnston v. Barker (20 Up. Can. Q. 
 
 B. 228), 185. 
 V. Brown (37 Iowa, 208), 6. 
 V. Cope (3 H. & John. 89), 187. 
 V. Dick (27 Miss. 277), 174. 
 V. Fessler (7 Watts, 48), 33. 
 V. Stear (15 C. B. (n. s.) 330), 
 
 274, 316. 
 Jones V. Alley (17 Minn. 292), 196. 
 V. Atkinson (68 Ala. 167), 2G8. 
 V. Benedict (83 N. Y. 86), 152. 
 V. Berry (33 N. H. 385), 306. 
 u. Blake (2 Hill. Ch. 636), 84«. 
 V. Bowden (4 Taunt. 847), Kw. 
 V. Caswell (3 Johns. Cas. 29), 
 
 169. 
 V. Chamberlain (5 Heisk. 210), 
 
 232. 
 V. Clark (26 Gratt. 642), 277. 
 V. Doe (2 III. 276), 218, 200. 
 V. Harris (83 N. C. 317), 231. 
 V. Flint (10 A. & E. 753), 59. 
 V. Foster (67 Wis. •2a6) , 336 
 V. George (61 Tex. 345), 189, 
 
 215, 336. 
 V. Gibbons (8 Ex. 920), 98, 
 
 113. 
 V. Graham (77 N. Y. 628), 240. 
 V. Guaranty & Indemnity Co. 
 
 (101 U. S. 622), 234. 
 V. Hathaway (77;ind. 14), 158. 
 V. Hodgkins (61 *Me. 480), 317. 
 V. Huggeford (3 Met. 515), 
 
 246. 
 V. Huggeford (3 Met. 819), 
 
 185. 
 V Hungerford (3 Met. 515), 
 186. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Jones B. Joues (8M. &'W.43l), 122. 
 V. Just (L. E. 3Q. B. 197;, 180, 
 
 187. 
 V. Kemp (49 Mich. 9), 6, 7. 
 V. Kllgore (2 Rich. Rq. 64), 
 
 152. 
 V. Kins; (86 111. 225), 174. 
 V. Eokomo Bldg. Assn. (77 
 
 Ind. 340), 262. 
 V, Lathrop (7 Col. 1), 336. 
 V. Lees (1 H. & N. 189), 303. 
 V. Littledale (6 A. & E. 486), 
 
 73. 
 V. Marsh (22 Vt. 144), 207, 
 
 834. 
 V. Mechanics' Bank (29 Md. 
 
 287), 65. 
 V. Mechanics' Bank (29 Md. 
 
 297), 67. 
 V. Nevers (2 Pugs. & Bur. 627), 
 
 174. 
 », Parker (73 Me. 348), 289. 
 V. Perry (10 Yerg. 69), 262. 
 V. Portsmouth, &c., E. R. Co. 
 
 (32 N. H. 544), 169. 
 V. Rahilly (10 Minn. 323), 4. 
 V. Rice (16 Pick. 440), 296. 
 V. Richardson (10 Met. 48i;, 
 
 61, 231. 
 V. Richardson (10 Met. 493), 
 
 232. 
 V. Eittenhouse (87 Ind. 348), 
 
 296. 
 V. Savage (6 Wend. 658), 147. 
 V. Sayer (52 Md. 211), 175. 
 V, Strawhan (4 Watts & S. 
 
 261), 144. 
 V. Swayze (42 N. J. L. 279), 238. 
 V. Thacher (61 Ga. 329), 283. 
 B. United States (96 U. S. 24), 
 
 208, 209. 
 V. Walker (13 B. Mon. 163), 
 
 200. 
 V. Wasson (3 Baxt. 211), 188. 
 V. Webster (48 Ala. 109), 231. 
 
 Jones V. Wright (71 111. 61), 213. 
 
 V. Williams (39 Wis. 300), 152. 
 
 Jordan v. Easter (2 111. App. 73), 8- 
 
 V. Farnsworth (15 Gray, 617), 
 
 237, 239. 
 V. Foster (5 Eng. 141), 195. 
 V. Hamilton Co. Bank (11 Neb. 
 
 499), 233. 
 V. James (5 Ohio, 88), 126, 128. 
 V. James (5 Ham. (Ohio) 89) , 
 
 214. 
 V. Norton (4 M. & W. 155), 34. 
 V. Osgood (109 Mass. 462), 170. 
 V. Parker (56 Me. 557), 329. 
 V. Smith (19 Pick. 479), 280, 
 
 281. 
 V. Turner (3 Blackf. 309), 223. 
 V. Warren Ins. Co. (3 Story, 
 342), 276. 
 Jorgenseu o. Tart (.26 Minn. 327), 
 
 241. 
 Joslin V. Coughlin (30 Miss. 502), 
 277. 
 V. Gaughlln (26 Miss. 134), 277. 
 V. Miller (14 Neb. 91), 268. 
 Josselyn v. Edwards (57 Ind. 212), 
 
 160. 
 Jowers V. Blandy (68 Ga. 379), 
 
 206. 
 Joy V. Sears (9 Pick. 4), 104. 
 
 V. ScMoss (12 Daly, 633), 58. 
 Joyce V. Adams (8 N. Y. 291), 87, 
 182. 
 V. Swan (17 C. B. (n. s.) 84) , 
 38, 86. 
 Joyner v. Conger (6 Jones Eq. 78), 
 277. 
 V. Vincent (4 D. & B. (N. C.) 
 
 L. 512), 222. 
 V. Vincent (4 Deb. & Bat. 512), 
 247. 
 Judd, etc.. Oil Co. v. Kearney (14 
 
 La. An. 352), 334. 
 Judwinew. Hardwick (49 Vt. 180), 
 270. 
 
 «43 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Jiiillard v. Greenman (110 U. S. 
 
 421), 140. 
 V. Greenman (110 U. S. 465), 
 
 143. 
 Julia, The (8 Cranch, 183), 89. 
 Judkins ». Walker (17 Me. 38), 18. 
 Junkins v. Simpson (14 Me. 364), 
 
 163. 
 Justice V. Lang (42 N. Y. 493), 76. 
 
 E. 
 
 Kadish v. Young (198 111. 176), 333. 
 Kahnw. Clabrunda (50 Wis. 235), 5, 
 
 115, 213. 
 Kahnweilen v. Buck (2 Pearson, 
 
 • 69), 125. 
 Kalk V. Fleding (50 Wis. 339), 234. 
 Kaltenbach v. Lewis (L. K. 24 Ch. 
 
 D. 54), 317. 
 Kanaga v. Taylor (7 Ohio St. 134), 
 
 239. 
 Kane v. Drak (27 Ind. 29), 84a. 
 
 V. Hood (13 Pick. 281), 201. 
 Kannaday v. McCarsou (18 Ark. 
 
 166), 241. 
 Kappes V. White Hardwood Lum- 
 ber Co. (1 Bradw. 280), 
 
 144. 
 Kaufman v. Hamm (30 Mo. 387), 
 
 308. 
 i;. Stone (25 Ark. 337), 87. 
 Kauffman v. Beasley (54 Tex. 563), 
 
 273. 
 V. Schilling (58 Mo. 218), 88. 
 Kay V. Duchesse de Peinne (3 
 
 Camp. 123), 29. 
 Kaysing B.Hughes (64111. 123), 234. 
 Kealey v. Tennant (13 Ir. C. L. 
 
 394), 64. 
 Kean v. Bobarts (4 Madd. 357), 277. 
 Kearney v. McComb (16 N. J. Eq. 
 
 189), 224. 
 Kearney v. Taylor (15 How. 519), 
 
 169. 
 644 
 
 Kearslake v. Morgan (5 T. B. 513), 
 
 147. 
 Kearon v. Pearson (7 Hurl. & S. 
 
 386), 218. 
 Keating v. Vaughan (61 Tex. 618), 
 
 175. 
 Keeler v. Goodwin (111 Mass. 
 490), 88, 122. 
 V. Keeley 31 N. Y. Eq. 181)^ 
 230. 
 Keeler v. Vandevere (6 Lans. 
 
 313), 205. 
 Keighler v. Savage Mfg. Co. (B. 
 
 Md. 383), 270. 
 Keightley». Birch (3 Camp. 521), 
 
 265. 
 Keil V. Harris (6 Atl. Eep.) 105. 
 Kein v. Tupper (52 N. Y. 655), 30, 
 
 87, 101, 113. 
 Kein v. Tuppler (52 N. Y. 550), 
 
 205. 
 Keitt V. Count (15 S. C. 493), 216. 
 Kellam v. McKinstrey (69 N. Y. 
 
 264), 100. 
 Keller v. Blanchard (19 La. Am. 53), 
 84a. 
 V. Strassburger (90 N. Y. 379; 
 js. c. 22 Hun, 625), 332. 
 Kelley v. Munson (7 Mass. 319), 
 273. 
 V. Smith (1 Blatchf. 290), 273. 
 V. Upton (5 Duer, 336), 207. 
 Kellogg V. Frazie (40 Iowa, 502), 
 234. 
 V. Lovely (406 Mich. 131), 231. 
 V. Turpie (2 111. App. 66), 332. 
 V. Witherhead (4 Hun, 273), 
 68. 
 Kelly V. Green (63 Pa. St. 299), 265. 
 V. Israel (11 Paige Oh. 152), 265. 
 V. Eeed (57 Miss. 89), 233. 
 V. Thompson (7 Watts, 401), 
 224. 
 Kelsea v. Haines (41 N. H. 263), 
 83. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Kelsey v. Harrison (29 Kan. 143), 
 170. 
 V. Kendall (48 Vt. 24), 326. 
 V. Rosborough (2 Rich. 241), 
 144. 
 Kemeyer v. Newlet (14 Kan. 164), 
 
 146. 
 Kemp V. Byne (54 Ga. 627), 196. 
 V. Carnley (3 Duer, 1), 233. 
 V. Coughty (llJohns. 107), 271. 
 V. Falk (L. R. 7 App. Cas. 873), 
 
 125, 130. 
 V. Falk (L. R. 7 App. Cas. 585), 
 
 136. 
 V. Westbrook (1 Ves. 278), 316. 
 Kempson v. Boyle (3 K. & C. 763; 
 
 34 L. J. Ex. 191), 79. 
 Kendal v. Marshall (11 Q. B. D, 
 
 356), 131. 
 Kendall, &c., Co. v. Commissioners 
 
 (79 Va. 563), 336. 
 Kendall v. Fitts (22 N. H. 1), 84a. 
 V. Hughes (7 B. Mou. 368), 84a. 
 V. Lawrence (22 Pick. 640), 18. 
 V. Miller (9 Call. 591), 263. 
 V. Simpson (12 "Vt. 515), 84a. 
 v. Stevens (L. R. 112 B. D. 
 356), 132. 
 Kenicott v. Supervisors (10 Wall. 
 
 452), 245. 
 Kennedy v. Clayton (29 Ark. 270) , 
 261, 
 V. McKay (43 N. J. L. 288), 
 
 173. 
 V. Nat. Union Bank (23 Hun, 
 
 494), 232, 240. 
 V. Panama Mail Co. (L. R. 2 
 
 Q. B. 680), 160. 
 u. Richardson (70 Ind. 634), 
 
 158. 
 V. Shaw (38 Ind. 474), 240. 
 V. Strong (14 Johns. 128;, 273. 
 Kennelly v. Martin (8 Mo. 698), 27. 
 KennerB. Harding (25 111. 264), 
 194. 
 
 Kenner v. Harding (85 III. 264), 166. 
 V. Harding (85 HI. 268), 193, 
 196. 
 Kenney v. Ingalls (126 Mass. 488), 
 217. 
 V. First Nat. Bank (50 Barb. 
 114), 149. 
 Kent u. Allbnttain (5 Miss. 317), 
 227. 
 V. Bird (Cowp. 583), 301. 
 V. Bornstein (12 Allen, 342), 
 
 149. 
 V. Buck (45 Vt. 18), 216, 325. 
 V, Friedman (3 N. E. Rep. 905), 
 
 180. 
 V. Friedman (101 N. Y. 616) , 
 
 197. 
 V. Ginten (23 Ind. 1), 335. 
 V. Huskinson (3 B. & P, 233), 
 
 67. 
 B. Priest (86 Mo. 476), 270. 
 Kenton Ins. Co. v. McClellan (43 
 
 Mich. 564), 30. 
 Kentucky Mut. Ins. Co. o. Jenks (5 
 
 Ind. 97), 39. 
 Kenworthy v. Schofleld (2 B. & C. 
 
 945), 57,75, 78. 
 KephartB. Butcher (17 Iowa, 240), 
 
 148, 
 Kerbs v. Ewing (22 Fed. Rep. 693), 
 
 175. 
 Kerfoot v. Hyman (62 111. 512), 
 
 270. 
 Kern v. Thurber (67 Ga. 172), 327. 
 Kerr v, Connell (1 Berton, 133), 
 69. 
 V. Hutchins (46 Tex. 384), 84a. 
 Kershaw v. Ogden (34 L. J. Ex. 
 159; 3 H. & C. 717), 82, 
 87. 
 Kerr v. Shrader (1 Weekly N. C. 
 
 33), 61. 
 Kessey v. McHenry (54 Iowa, 187), 
 
 240. 
 Ketcham v. Catlins (21 Vt. 191), 35 
 645 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Ketcbam v. Brennan (53 Miss. 596) , 
 84a, 206, 210, 311. 
 V. Brennan (53 Miss. 597), 325. 
 V. Schieketanz (73 Ind. 137), 
 
 2S6. 
 V. Verdell (42 Ga. 534), 269. 
 V. Watson (24 111. 591), 84a. 
 V. Zeiledorff (26 Wis. 514), 
 218. 
 Keyseri). Harbeck (3 Duer, 373), 
 
 327, 329, 313. 
 Keys V. Joiinson (68 Pa. St. 42), 
 
 271, 272. 
 Kibble v. Gougii (38 L. T. (n. s.), 
 
 204), 68. 
 Kibby v. Chitwood (4 B. Mon. 95), 
 
 252. 
 Kiddellt;. Barnard (9M. &W. 668), 
 
 194. 
 Kidder v. Blake (46 N. H. 630), 292. 
 B.Knox (48 Me. 551), 144. 
 V. McKnigiit[(13 Johns. 294), 
 
 83. 
 V. Norris (18 N. H. 532), 152. 
 Kidney v. Persons (41 Vt. 386), 
 
 316. 
 KUbournec. Fay (19 Ohio St. 264), 
 
 240. 
 Killmore v. Howlett (48 N. Y. 569) , 
 
 69. 
 Killough V. Alford (32 Tex. 467), 
 
 143. 
 Kimball v. Cunningham (4 Mass. 
 602), 163. 
 V. Kildreth (8 Allen, 167), 4. 
 V. Myers (21 Mich. 276), 234. 
 V. Thompson (4 Cash. 447), 
 174. 
 Kimball, The (3 Wall. 45), 144. 
 Kimberly v. Patchin (19 N. Y. 330), 
 
 82,87, 88. 
 Kimble v. Jackman (42 N. H. 242), 
 
 325. 
 Kimbrough v. Lane (11 Bush, 656), 
 296. 
 646 
 
 Kimm v. Weippert (46 Mo. 532), 
 
 30. 
 Kinder!). Shaw (2 Mass. 398), 273, 
 
 310. 
 King V. Aultmau (24 Kan. 246), 
 
 233. 
 V. Bates (57 N. H. 446), 325. 
 V. Doolittle (1 Head (Tenn.), 
 
 17), 158. 
 V. Eagle Mills (10 Allen, 548), 
 
 160. 
 V. Eagle Mills (10 Allen, 551), 
 
 163. 
 V. Green (6 Allen, 139), 293, 308. 
 ■u. Jamison (66 Mo. 498), 19. 
 V. Jarman (36 Ark. 190), 69, 106. 
 V. Phillips (8 Bosw. 603), 170. 
 V. Phillips Mills v. Slater (12 R. 
 
 I. 82), 209. 
 
 V. Pitt (1 W. Bl. 380), 298. 
 
 V. Trice C3 Ired. Eq. 667), 176. 
 
 V. Watson (3 Price, 6), 176. 
 
 Kingley v. White (67 Vt. 566), 104. 
 
 Kingsbury v. Fleming (66 M. C. 
 
 524), 297. 
 V. Gooch (64 N. C. 628), 297. 
 V. Kirwan (71 N. Y. 612), 302. 
 V. Smith (13 N. H. 109), 627, 
 
 329. 
 V. Taylor (29 Me. 108), 187. 
 V. Merry (1 H. & N. 503), 168. 
 V. Merry (11 Exch. 677), 327. 
 V. Merry (11 Ex. 577; 1 Hurl. 
 
 &N. 603), 317. 
 Kingsley u. Holbrook (45 N. H. 
 
 313), 69. 
 V. Johnson (49 Conn. 462), 194. 
 V. White (67 Vt. 565), 106. 
 Kinloch v. Savage (1 Speers Ch. 
 
 470), 74. 
 V. Savage (Speer Eq. 472), 76. 
 Kinna v. Smith (2 Green Ch. 14), 
 
 221. 
 Kinnear v. White (2 Kerr. (n. b.) , 
 
 235), 174. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Kluner v. Kiernan (2 Lans. 492), 
 
 163. 
 Kinney v, McDerraott (55 Iowa, 
 
 674), 293, 308. 
 V. Showdy (1 Hill, 644), 165, 
 
 285. 
 V. "Whlton C44 Conn. 262), 196. 
 Kinsey v. Bailey (9 Hun, 452), 230. 
 V. Leggett (71 N. Y. 395), 
 
 317. 
 Kinsman v. Kershaw (119 Mass. 
 
 140), 142. 
 V. Parkhurst (18 How. 389), 
 
 303. 
 Kintzing v. McElrath (5- Pa. St. 
 
 467), 169, 167, 171. 
 Klpp V. Meyer (5 Hun, 111), 116, 
 V. Wiles (3 Sandf. 585), 335. 
 Kirby v. Cahill (6 Up. Can. Q. B. 
 
 (o. s.) 610), 314. 
 Kirby v. Duke of Marlborough (2 
 
 Maule & S. 18), 152. 
 Kirby ^;. Johnson (22 Mo. 354), 69. 
 Kirk V. Nice (2 Watts, 367), 188. 
 Kirk V. Strickwood (4 B. & Ad. 
 
 421), 296. 
 Kirkland v. Brune (31 Gratt. 126), 
 
 239. 
 Kirtland v. Moore (40 N. J. Eq. 
 
 106), 212. 
 Kirkpatrlc v. Alexander (44 Ind. 
 
 595), 211. 
 Kirkpatrick v. Adams (20 Fed. 
 
 Kep. 287), 272. 
 V. Alexander (60 Ind. 95), 99. 
 V. Bonsall (72 Pa. St. 156), 
 
 272, 302. 
 Kirksey v. Snedecor (60 Ala. 192)) 
 
 174. 
 Kirtland v. Snow (20 Conn. 23), 
 
 84a. 
 Kitchen v. Lee (11 Paige, 107), 20. 
 
 V. Spear (30 Vt. 545), 130. 
 Kittredge v. Sumner (11 Pick. 50), 
 
 96, 104. 
 
 Klein v. Rector (57 Mich. 638), 
 
 170. 
 Kleeman v. Collins (9 Bush. 467), 
 
 74. 
 
 Klien v. Siebold (89 III. 640), 310. 
 
 V. Rector (57 Miss. 538), 171. 
 
 V. Tupper (62 N. Y. 560), 103. 
 
 Klinck V. Price (4 W. Va. 4), 228. 
 
 Kline v. Baker (99 Mass. 253), 170, 
 
 291. 
 Eling «. Pries (33 Mich. 275), 291. 
 Kllnltzj). Surrey (5 Esp. 267), 70. 
 Kiock ». Walter (70 111. 416), 228. 
 Klopenstein v. Mulcahy (4 Nev. 
 
 296), 170, 171. 
 K. M. Mfg. Co. V. Macallisters (40 
 
 Mich. 84), 196. 
 KnaggSB. Green (48 Wis. 601), 229. 
 Knapp V. Lee (3 Pick. 467), 163. 
 Kneeshaw v. Collier (30 N. C. C. P. 
 
 265), 296. 
 Knight V. Abbott (30 Vt. 577), 140. 
 
 c. Bean (22 Me. 536), 218. 
 Knittel v. Gushing (57 Tex. 364), 
 
 210- 
 Knightr. Mann (118 Mass. 443), 69. 
 V. New Eng. Worsted Co. (2 
 
 Gush. 271), 93. 
 V. Nichols (34 Me. 208), 239. 
 V. Priest (2 Vt. 507), 296. 
 Knight V. Yarborough (4 Rand. 
 
 566), 277. 
 Knoblaunch v. Krouschnabel (18 
 
 Minn. 300), 115. 
 Knox V. Black (1 A.K. Marsh. 298), 
 
 224. 
 Knox V. Perkin3(16 Gray, 529), 210. 
 V. The Nivella (Crabbe, 534), 
 321. 
 KohlB.Lindley (39 111. 195), 94, 104. 
 V. Lindley (39 111. 196), 190. 
 V. Lynn (34 Mich. 360), 221, 
 240, 241, 246, 248. 
 Kohler». Hayes (41 Gal. 465), 203, 
 326. 
 
 647 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Kohler v. Hayes (41 Cal. 456), 9. 
 Kohn V. Washer (64 Tex. 131), 142. 
 
 269. 
 Konitzky v. Meyer (49 N. Y. 471), 
 
 332. 
 Koop V. Handy (41 Barb. 464), 196. 
 Kopline. Anderson (88 111. 120), 
 
 239. 
 Konegay v. White (10 Ala. 265), 194. 
 Koruemann v. Monahan (24 Mich. 
 
 86), 142, 269. 
 Kornsc. Shaffer (27 Md. 83), 260. 
 Kottwitz V. Alexander (11 Cush. 
 
 222), 294. 
 Kountz V. Kirkpatrick (72 Pa. St. 
 
 376), 47, 333, 335. 
 V. Price (40 Miss. 341), 290, 
 
 293, 308. 
 Kraft V. Hurtz (11 Mo. 109), 96. 
 Kraker v. Byrum (13 Bich. 163), 17. 
 Kranert v. Simon (165 111. 344), 234. 
 Eratsmger v. Brown (72 Ind. 466), 
 
 144. 
 Kreiss u. Seligman (8 Barb. 439)^ 
 
 294. 
 Kribs V. Jones (44 Md. 396), 335. 
 Kriett v. Myer (61 Md. 658), 7b. 
 Krohn v. Bantz (68 Ind. 277), 71. 
 Krulder v. Ellison (47 N. Y. 36) ; 89. 
 Krumbhaar v. Birch (83 Pa. St. 
 
 426), 186. 
 Krumm v. Beach (25 Hun, 293 ; 86 
 
 N. Y. 311), 173. 
 Krutz V. Fisher (8 Kan. 90), 270. 
 Kuckle V. Barbour (48 Ind. 274), 
 
 263. 
 Kuhns V. Gates (92 Ind. 66), 308. 
 Kuhn V. Graves (9 Iowa, 303), 239, 
 
 240. 
 V. Rumpp (46 Cal. 299), 228. 
 Kanklew. Mitchell (56 Pa. St. 100), 
 
 94. 
 Kuntz V. Tompel (48 Mo. 75), 99. 
 Kyle V. Kavanaugh (103 Mass. 366). 
 
 35. 
 648 
 
 Kyle V. Ward (1 So. Rep. 468), 174, 
 Kyraer v. Suwerkropp (1 Comp. 
 109), 272. 
 
 L. 
 
 Lacaussade v. White (7 T. R, 535), 
 
 301. 
 Lackington v. Atherton (7 M. & 6. 
 
 360), 69. 
 Ladd V. Arkell (37 N. Y. Sup. Ct. 
 
 35), 271, 273. 
 Ladd V. Arkell (40 N. Y. Sup. Ct. 
 
 160), 278. 
 V. Lord (36 Vt. 194), 168. 
 V. Rogers (11 Allen, 209), 290, 
 
 293, 308. 
 Ladne v. Seymour (26 Wend. 60), 
 
 209. 
 Lady Franklin, The (8 Wall, 325), 
 
 323. 
 Lafferty v. Jelly (22 Ind. 471), 270, 
 Lahlman v. Mills (3 Strobh. 383), 
 
 87. 
 Laidlow V. Organ (2 Wheat. 178), 
 
 159, 167, 171. 
 Laldler v, Burlinson (2 M. & W. 
 
 602), 82, 87. 
 Laight V. Pell (1 Edw. Ch. 577), 254. 
 Lalner v. Auld (1 Murph. 138), 182. 
 Lainy v. Perrot (48 Mich. 298), 241. 
 Laird v. Pim (7 M. & W. 474), 333. 
 Lake v. Campbell (18 111. 106), 
 
 286. 
 V. Morris (30 Conn. 20), 84o, 
 
 96, 104. 
 Lamb v. Crafts (12 Met. 353), 68, 
 
 189, 196. 
 V. Durrant (22 Mass. 64), 322. 
 Lambert v. McCloud (63 Cal. 162), 
 
 325. 
 Lamkin v. Crawford (8 Ala. 163), 
 
 334. 
 Lamm v. Port Deposit Ass'n (49 
 
 Md. 233), 173. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Lamphere v. Lowe (3 Neb. 131), 
 
 230, 211. 
 Lampreys. Sargent (68 W. H. 241), 
 
 88. 
 Lampriere v. Lange (12 Ch. D. 
 
 675), 168. 
 Lamson v. Patch (6 Allen, 586), 
 
 104 
 Lancaster v. Dolan (1 Eawle, 231), 
 
 30. 
 Lancaster Co. Bk. v. Moore (78 Pa. 
 
 St. 407), 22. 
 Landecbe v. Spary (37 La. An. 
 
 835), 210. 
 Landers v. George (49 Ind. 309), 
 
 247. 
 Langdon v. Buel (9 Wend. 80), 221, 
 
 222, 241, 245, 246. 
 Landon v. Emmons (97 Mass. 37), 
 
 241, 248. 
 Lane v. Dormaa (4 III. 238), 252. 
 V. Hogan (6 Yerg. 290), 209. 
 V. Bobinson (18 B. Mon. 623), 
 
 130, 170. 
 V. Komer (2 Chand. 71), 186, 
 
 186. 
 V. Shearks (1 Wend. 433), 227. 
 Lanfear v. Blossom (1 La An. 148), 
 
 85. 
 V. Summer(17 Mass. 1 10), 84a, 
 
 214. 
 Lang V. Stockwell (66 N. H. 661), 
 
 84a. 
 ». Wbidden (2 N. H. 435), 21. 
 Langdon v. Summers (10 Ohio St. 
 
 77), 283. 
 Lange v. Werk (2 Ohio St. 619), 
 
 292. 
 Lang's Appeal (81 Pa. St. 18), 87. 
 Langton v. Hlgglns (4 H. & N. 402; 
 
 28L. J. Ex. 262), 89. 
 V. Higgins (28 L. J. Ex. 252; 
 
 4 H. & N. 402), 87. 
 Ijangsdale v. Mills (32 Ind. 281), 
 
 284. 
 
 Langston v. Hughes (1 Hanle & S. 
 
 693), 294. 
 V. Maltland (11 Gill. & J. 286), 
 
 142. 
 Lang worthy v. Little (12 Cash. 
 
 109), ,239. 
 L'Aportre v. Le Plaistier (1 Ves. 
 
 Jr. 351), 185. 
 Lapp V. Eirstbrook (24 U. P. Can. 
 
 C. P. 239), 168. 
 Lanbach v. Lanbach (73 Pa. St. 
 
 392), 333. 
 Laeber ». Langor (45 Md. 477), 228. 
 Lary v. Teliaferro (67 Ga. 443), 180. 
 Larkin v. Eckwurzel (42 Ala. 322), 
 
 327. 
 Larkin v. Mitchell Lumber Co. (42 
 
 Mich. 296), 89. 
 Larmon «. Carpenter (70 111. 549), 
 
 221, 248. 
 Lamed v. Andrews (106 Mass. 
 
 435), 306. 
 LaRue v. Gilkyson (4 Pa. St. 375) ,23. 
 Lash D. Edgerton (13 Minn. 210), 
 
 152. 
 ■B. Perlin (78 Mo. 391), 196. 
 Latch «. Wells (48 N. Y. 585), 319. 
 Latham ». Morrow (6 B. Mon. 630), 
 
 165. 
 V. Sumner (89 111. 233), 210. 
 Lathrop ». Amherst (9 Met. 489), 
 
 304. 
 V. Wightman (5 Wright, 297), 
 
 84a. 
 Latimer v. Batson (4 Barn. & C. 
 
 652), 84a. 
 Laurens v. Lucas (6 Eich. Eq. 
 
 217), 277. 
 Laussat v. Lippincott (6 Serg. & 
 
 R. 391), 317. 
 u. Lippincott (6 Serg. & R. 
 
 386), 273. 
 Lavigne o. Maramore (62 Vt. 267), 
 
 247. 
 Law V. Grant (37 Wis. 548), 173. 
 649 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Law V. Stoker (32 N. J. L. 250), 142. 
 
 Lawleyu. Hooper(3 Atk. 279), 157. 
 
 Lawrence v. Burnham (4 Nev. 361), 
 
 84a, 106. 
 
 V. BTarts (7 Ohio. St. 194), 
 
 233. 
 V. Kidder (10 Barb. 641), 303. 
 V. Knowles (6 Bing. N. C. 
 
 399), 113. 
 V. Maxwell (6 Lans. 469), 270. 
 ». McCalmont (2 How. 426), 
 
 148. 
 V. Minturn (17 How. 107), 89. 
 I). Eice (12 Met. 633), 258. 
 V. Stonington Bank (6 Conn. 
 
 521), 271. 
 V. Tucker (23 How. 14), 234. 
 V. Willis (75 N. C. 471), 21. 
 Lawson v. DeBolt (78 Ind. 663), 
 256. 
 V. Lovejoy (18 Greenl. 406), 19. 
 Lawtoni;. Kail (61 Barb. 538), 197. 
 Laythoorp v. Bryant (2 Bing. N. C. 
 
 735) , 76. 
 Laying v. Paine (Wills. 571), 298. 
 Lazarub v. Audrade (5 C. B. Div. 
 
 318), 63, 232. 
 Lazier v. Nevin (3 Haggems (W. 
 
 Va.) 622), 147. 
 Leabo v. Goods (67 Mo. 126), 144. 
 Leach v. Pobes (11 Gray, 606), 337. 
 V. Kimball (34 N. H. 668), 221, 
 
 241, 248. 
 V. Koenig (55 Mo. 461), 263. 
 V. Bush (57 Ala. 145), 273. 
 V. Kimball (34 tt. H. 568), 226, 
 247. 
 Leadbetter v. .Sitna Ins. Co. (13 
 
 Me. 266), 212. 
 League v. Warring (86 Pa. St, 244), 
 
 144. 
 Leake v. Sutherland (26 Ark. 219), 
 
 270. 
 Lean v. Schultz (2 W. Block. 1196;, 
 29. 
 650 
 
 Leaugue?;. Wasinn (86 Pa. St. 244), 
 
 144. 
 lieskrv. Friedlander (45 Miss. 669), 
 
 144. 
 Leas V. James (10 S. & R. 307), 144. 
 Leash B. Scott (2QB. Div. 376), 122. 
 Least V. Scott (2 Q. B. D. 376), 134. 
 Leavell v. Bobinson (2 Leigh. 161), 
 
 206. 
 Leavitt v. Fletcher (60 N. H. 182), 
 196, 
 V. Jones (54 Vt. 423 ; 41 Am. 
 Rep. 849), 106. 
 Lea V. Yard (4 Ball. 96), 281. 
 Laycraft v. Hedden (3 Green Ch. 
 
 561), 30. 
 Leblane v. Bouchereaa (16 La. An. 
 
 11), 224. 
 Leckel v. Scott (66 HI. 106), 87. 
 Ledllo V. Vrooraan (41 Barb. 109), 
 
 30. 
 Ledwich v. McKim (53 N. Y. 407), 
 
 216. 
 Ledyard v. Hibbard (48 Mich. 421), 
 
 6,7. 
 Leedom v. Phillips (1 Yeats, 627), 
 
 93. 
 Leeds V. Cameron (3 Sumn. 488), 
 
 234. 
 Leeming v. Snaith (16 Q. B. 276), 
 
 102. 
 Lee V. Ashbrook (14 Mo. 378), 209. 
 ■v. Baldwin (10 Ga. 208), 148. 
 V. Bayes (18 C. B. 699), 311, 
 
 313. 
 V. Early (44 Md. 80), 162. 
 V. Gaskell (1 Q. B. D. 700), 69. 
 V. Griffin (30 L. J. Q. B. 252; 1 
 
 B. &S. 272), 68. 
 V. Harrison (1 Litt. 191), 224. 
 V. Huntoon (1 Hoff. Ch. 447) > 
 
 239. 
 V. Jones (17 C. B. (n. s.) 606), 
 
 169. 
 V. Kilburn (3 Gray). 
 
TABLE OF CASES CITED. 
 
 Lee V. Kimball (45 Me. 172), 122, 
 134, 214, 327. 
 V. Lee (19 Mo. 420), 166. 
 V. Mahoney (9 Iowa, 344), 75. 
 V. Mason (10 Mich. 403), 262. 
 Leer v. Muggrldge (5Taunt. 36), 30. 
 Lee V. Portwood (38 Me. 563), 168. 
 V. Portwood (41 Miss. 109), 327. 
 V. Simmons (66 Wl8. 623), 170. 
 Lefever v. Mires (81 111. 456), 84a, 
 
 106. 
 Leggett V. Sands' Ale Co. (60 111. 
 
 158), 194. 
 Legro V. Lord (10 Me. 161), 174. 
 Lehigh Co. v. Field (8 Watts & S. 
 
 323), 6. 
 Lehmberg u. Blberstein (51 Tex. 
 
 457), 174. 
 Lehndorf v. Schields (13 Mo. App. 
 
 486), 196. 
 Leigh «. Mobile, &c., R. E. Co. (68 
 Ala. 176), 310. 
 V. Mobile, &c., E. E. Co. (58 
 Ala. 165), 312, 325. 
 Leighton u. Shapley (8 N. H.359), 
 
 246. 
 Leltch V. Hallister (4N.T. 211), 175. 
 
 V. Wells (48 N. Y. 585), 277. 
 Leland v. Colver (34 Mich. 418), 
 232. 
 V. Douglass (1 Wend. 490), 273. 
 Leland, Ee (10 Blatchf. 593), 240. 
 
 V. Sprague (28 Vt. 746), 230. 
 Lemay v. Williams (32 Ark:. 166), 
 
 240. 
 Lemen v. Eobinison (59 111. 115), 
 
 240. 
 Lemmer v. Hardaway (25 Ga. 306), 
 
 239. 
 Leniham v, Hamann (14 Abb. Pr. 
 
 (N. s.) 274), 284. 
 Leonard v. Baker ( 1 Maule & S. 
 261), 84a. 
 u. Davis (1 Black, 476), 87, 93, 
 104, 106, 120. 
 
 References are to Sections. 
 
 Leonard B. Fowler (44 N. Y. 239), 
 
 188. 
 V. Vradenburg (8 Johns. 29), 
 
 76. 
 Lerned v. Johns (9 Allen, 419), 73, 
 
 273. 
 V. Wainnamaker (9 Allen, 412), 
 
 75. 
 Leod ». First Nat. Bank (42 Miss. 
 
 99, 329. 
 Lerow v. Wilmarth (9 Allen, 380i 
 
 385), 174. 
 Leshey v. Gardner (3 Watts & S. 
 
 314), 268. 
 Lessasier v. Southwestern (2 
 
 Woods, 3), 134. 
 Lesem v. Nerriford, 44 Mo. 23), 84a. 
 Lester v. East (49 Ind. 688), 83, 87. 
 Lester's Case (4 Humph. 384), 264. 
 Letcher v. Norton (4 Scam. 675), 
 
 341. 
 Letham v. Amor (47 L. J. Q. B. 
 
 581; 38L. T. E. 785), 63. 
 Letourne v. Einggold (3 Canch. C. 
 
 C. 103), 231. 
 Lerry v. Welsh (2 Edw. Ch. 438), 
 
 232. 
 Leven v. Smith (1 Denio, 571), 93. 
 Leverick v. Meigs (1 Cow. 645), 
 
 273. 
 Levett V. Tarrar (Cro. Bliz. 294), 
 
 258. 
 Levi V. Booth (68 Md. 305), 269. 
 
 V. Earle (30 Ohio St. 147), 30. 
 Levy V. Cohen (4 Ga. 1), 39. 
 
 V. Green (1 E, & L. 969; 28 L. 
 
 J. Q. B. 319), 89. 
 V. Green (8 El. & B. 675; 1 El. 
 
 &E. 969; 27 L. J. Q. B. 
 
 Ill; 28 L.J. Q. B. 319), 
 
 113. 
 V. Green (8 E. & B. 675; 27 L. 
 
 J. Q. B. Ill; Ex. C. H. 
 28 L.J. Q. B. 318), 101. 
 r. Merrill (4 Greenl. 180), 76. 
 651 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Lewis V. Bahn (33 Md. 412), 273. 
 V. Buck (7 Mum. 104), 256. 
 B. Brass (2Q.B. D. 667 C. A.), 
 
 ,<}3. 
 V. Browning (130 Mass. 173), 
 
 39. 
 V. D'Arcy (71 111. 648), 241. 
 V. Davidson (29 Gratt. 226), 
 
 144. 
 t>. DeForrest (20 Conn. 427), 
 
 234. 
 V. Esther (2 Cranch C. C. 423), 
 
 209. 
 V. Greider (49 Barb. 606), 334. 
 V. Greider (61 N. Y 231), 334. 
 a. Latham (74 N. C. 283), 294. 
 V. Lee (3 Barn. & C 291), 29. 
 V. Littlefleld (16 Me. 233), 301. 
 V. Lofley (60 Ga. 659), 88. 
 V. Lyman (22 Pick. 437), 231, 
 
 302. 
 B. Meson (36 Up. Can. Q. B. 
 
 590), 126, 128, 130. 
 V. Mott (36 N. Y. 395), 274, 
 
 316. 
 V. Palmer (Hill & D. Supp. 663), 
 
 325. 
 ». Palmer (28 N. Y. 271), 240. 
 V. Plead (1 Ves. Jr. 19), 21. 
 V. RouDtree (78 N. C. 323), 189. 
 V. Wells (60 Ala. 198), 286. 
 LickbarrowB. Mason (2 T. E. 63), 
 
 321, 322. 
 Lightbody v. Ontario Bank (11 
 
 Wend. 9), 149. 
 Lightfoot V. Tenant (1 Bos. & P. 
 
 562), 303. 
 Lillie V. Dunbar (62 Wis. 198), 59. 
 LlUywliite v. Devereaux (16 M. & 
 
 W. 285), 67, 69, 115. 
 Lincoln v. Erie Preserving Co. (132 
 Mass. 129), 76. 
 V. Wilbur (125 Mass. 249), 176. 
 Lindauer v. Hay (61 Iowa, 
 168. 
 652 
 
 Lindemann v. Ingham (38 Ohio St. 
 
 1), 241. 
 Linden v. Eldren (49 Wis. 305), 
 
 334. 
 Lindon v. Eldred (49 Wis. 305), 
 334. 
 V. Sharp (6 M. & G. 895), 84a. 
 Lindsay v. Lamb (24 Ark. 224), 186. 
 V. Rutherford (17 B. Men. 246), 
 306. 
 Linforth, In re (4 Sawy. C. C. 370), 
 
 203. 
 Linforth, In re (4 Sawy. 374), 8. 
 Lingham v. Eggleston (27 Mich. 
 
 32), 82, 83, 84, 205. 
 Lingle v. Cook (32 Gratt. 272), 152. 
 Linn Boyd, &c., Co. v. Terrill (13 
 Bush, 10), 286. 
 V. Gunn (23 N. W. Rep. (Mich.) 
 
 84), 193. 
 V. Sigsbee (67 lU. 75), 303. 
 LInnen Doll v. Doll (14 Johns. 222), 
 261. 
 V. Crugger (40 Barb. 633), 316. 
 Linton V. Batz (7 Pa. St. 89), 69, 
 106. 
 V. Porter (31 111. 107) 186. 
 Lipe». Earnman (26Gratt.563), 84a. 
 Linsdey v. McClelland (18 Wis. 
 
 481), 144. 
 Listen v. Windmuller (20 Jones & 
 
 Sp. 408), 335. 
 Littel V. Page (44 Mo. 412), 85. 
 Littlefleld v. Shee (2 B. & Ad. 84), 
 
 30. 
 
 Little V. Duncan (9 Rich. 65) , 19. 
 
 V. Little (13 Gray, 264), 21. 
 
 V. Page (44 Mo. 412), 206. 
 
 V. Paige (40 Mo. 412), 325. 
 
 Littlewort v. Davis (50 Miss. 403), 
 
 228. 
 Litt V. Cowley (7 Taunt. 168), 136. 
 Livermore ». Rand (26 N. H. 85), 
 152. 
 V. White (74 Me. 452), 35. 
 
TABLE or CASES CITED. 
 
 References are to Sections. 
 
 Liverpool Adelphi Loan Associa- 
 tion V. Falrhurst (9 Exch. 
 122;, 168. 
 Liverpool Borough Bank v. Eccles 
 (4 H. &N. 139; 28 L. J. 
 Eq. 123), 76. 
 Livingston v. Ttiompkins (4 Johns. 
 
 Ch. 431), 219. 
 Lloyd V. Brewster (4 Paige, 537), 
 170, 171. 
 V. Bunck (41 Iowa, 660), 174. 
 V. Lord Say et al. (10 Mod. 
 46; 4 Browne, P. C. 73), 
 36. 
 Load ». Greea (15 M. & W. 216), 
 
 327. 
 liObban i;. Barnett (9 Dana, 389), 
 
 227. 
 Lobdell u. Hopkins (5 Cow. 616), 
 96, 207. 
 V. Stowell (51 N. T. 75), 88. 
 iiOck V. Selwood (12 B. 736), 314. 
 Locke ». Lewis (124 Mass. 1, 7), 
 273. 
 V. Palmer (26 Ala. 312), 204, 
 
 224, 243. 
 V. Stearns (1 Met. 560), 173. 
 V. Williamson (40 Wis. 377), 
 117. 
 Lock's Appeal (72 Pa. St. 491), 272. 
 Lockett V. Nichlia (2 Ex. 3), 120. 
 Lockhart v. Hallinger (2 Bradw. 
 
 465), 301. 
 Lockwoodj). Ewer (9 Mod. 278), 
 274. 
 V. Slewin (26 Ind. 124), 239, 
 240. 
 Loeb V. Blum (25 La. An. 232), 
 121. 
 J). Flash (66 Ala. 526), 329. 
 V. Flash (66 Ala. 626), 170. 
 V. Peters (63 Ala. 243), 135. 
 V. Peters (63 Ala. 243 ; 35 Am. 
 
 Eep. 17), 125. 
 V. Peters (63 Ala. 248), 134. 
 
 Loeschman v. Machln (2 Stark, 
 
 311), 317. 
 Loflandc. Ewiag (6 Litt. 42), 268. 
 Logan V. Attix (7 Iowa, 77), 144. 
 V. Le Mesurier (11 Moore P. C. 
 
 C. 116), 83. 
 V. Le Mesurier (Moore P. C. 
 
 116), 87. 
 V. Mason (6 Watts & S. 9), 152. 
 V. Musick (81 111. 415), 302. 
 V. La Mesurier (6 Moore P. C. 
 116), 82. 
 Logsdoni;. Spivey (54 111. 104), 264. 
 Logwood V. Hussey (60 Ala. 417), 
 
 204. 
 Lomax v. Bailey (7 Blackf. 599), 
 
 209. 
 
 Lomi V. Tucker (4 C. & P. 15), 189. 
 
 London & Northwestern Ry. Co. v. 
 
 Bartlett (7 H. & N. 400), 
 
 85. 
 
 Lone V. Dolger (6 Roberts, 256), 
 
 218. 
 Lonergan v. Stewart (55 111. 45), 7. 
 Long V. Anderson (62 Ind. 537), 
 
 184. 
 Long Dock Co. v. Mallery (12 N. J. 
 
 Eq. 93), 248, 249. 
 Long 11. Gale (1 Maule & S. Ill), 99. 
 V. Hickingbottom (28 Miss. 
 
 772), 185. 
 V. Hicks (2 Humph. 305), 195. 
 V. Millar (4 C. P. D. 450), 75. 
 V. Sprull (7 Jones, L. 96), 146. 
 V. Stockwell (55 N. H. 561), 174. 
 w. Warren (68 N. Y. 426), 158. 
 V. White (42 Ohio St. 59), 59. 
 V. Woodman (58 Me. 49), 168. 
 V. Woodman (58 Me. 52), 166. 
 Longmeri). Smith (1 B. & C. 1), 
 
 302. 
 Longworth u. Mitchell (26 Ohio St. 
 
 334), 38. 
 Looker v. Beckwell (38 N. J. L. 
 253), 231. 
 
 653 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Loomis V. Bragg (50 Conn. 282), 9, 
 203. 
 V. Spencer (2 Paige, 163), 22. 
 V. Wainwright (21 Vt. 520), 12. 
 Lopes V. Robinson (54 Tex. 510), 
 
 160. 
 Lord V. Grow (39 Pa. St. 88), 187. 
 Lorlng V. Cooke (3 Pick. 48), 140. 
 
 V. Sleinman (1 Met. 204), 29. 
 Loremore B.Campbell (60 Barb. 62), 
 
 174. 
 Lorymer v. Smith (1 Barn. & C. 1) , 
 
 114, 197,215. 
 Losey v. Simpson (10 N. J. Eq. 
 
 247), 245. 
 Louisiana Bank v. Laveille (62 Mo. 
 380), 323. 
 V. Boyce (78 Ky. 42), 320. 
 Lothrop V. Otis (7 Allen, 435), 188. 
 V. Wightman (41 Pa. St. 297), 
 277. 
 Lavatt V. Hamilton (5 M. & W. 
 
 639), 214. 
 Love V. Blair (72 Ind. 281), 228. 
 
 V. Hoss (62 Ind. 255), 270. 
 
 Loving V. Boston (7 Met. 409), 38. 
 
 Lovejoy v. Jones (30 N. H. 164), 
 
 324. 
 
 V. Murray (3 Wal. 16), 43. 
 
 Lovelace v. Smith (39 Ga. 130), 
 
 253. 
 Lovell V. Pield (5 Vt. 218), 277. 
 V. Williams (125 Mass. 439), 
 269. 
 Low V. Henry (9 Cal. 538), 204. 
 V. Pettingill (12 N. H. 337), 
 
 240. 
 b. Pew (108 Mass. 347), 231. 
 Lowber v. Connit (36 Wis. 176), 76. 
 Lowe V. Wing (66 Wis. (1882) 31), 
 248. 
 V. Griffith '1 Scott, 468), 17. 
 V. Sinkler (27 Mo. 308), 18. 
 V. Wing (13 N. W. Rep. 892), 
 221. 
 654 
 
 Lowell tj. Henry (6 Ala. 226), 140. 
 
 Lowry v. McLane (3 Grant. (Pa.) 
 
 333), 163. 
 
 V. Mehaffey (10 Watts, 387), 76. 
 
 Lowrey v. Murrell (2 Port. 280), 
 
 146, 149. 
 
 Loyd u. Currin (3 Humph. 462), 
 
 225, 228. 
 
 V. Lee (1 Strange, 94), 30. 
 
 V. Malone (23 111. 43), 169. 
 
 V. Wright (20 Ga. 674), 89. 
 
 V. Wright (20 Ga. 578), 66. 
 
 Lozear o. Shields (8 C. E. Green, 
 
 509), 21. 
 Lucas V. Campbell (86 111. 447), 
 326. 
 V. Campbell (88 111. 447), 9, 
 
 203,210. 
 V. Dorrien (7 Taunt. 278), 69. 
 V. Harris (20 111. 166), 245. 
 V. Nlcholls.(5 Gray, 309), 96. _ 
 Lucesco Oil Co. v. Brewer (66 Pa. 
 St. 351; 30 Am. Law. 
 Beg. 398), 209. 
 Luckett V. Townsend (3 Tex. 119), 
 
 204. 
 Lucky V. Roberts (25 Conn. 486), 
 168. ' 
 
 Lucking v. Wesson (25 Mich. 443), 
 
 221,248,443. 
 
 LuckB. Falkner (26 Cal. 404), 143. 
 
 Lucy V. Bundy (9 N. H. 298), 163, 
 
 206, 326. 
 
 V. Bundy (9 N. H 302), 93. 
 
 V. Moufflet (5 Hurl. & N. 229), 
 
 213. 
 V. Mouflet (6 H. & N. 233), 
 197. 
 Ludgate v. Love (44 L. T. (n. s.) 
 
 694), 173. 
 Ludlow V. Browne (1 Johns. 115), 
 85, 95. 
 V. Hardy (38 Mich. 690), 290. 
 ». N. Y. & H. R. B. Co. (12 Barb. 
 442), 200. 
 
TABLE OP CASES CITED. 
 
 References are to Sections. 
 
 Lynch v. Baxter (4 Tex. 431), 277. 
 V. Becher (38 Conn. 490), 827, 
 
 329. 
 V. Dodge (130 Mass. 468), 26. 
 ■0. O'Donnell (127 Mass. 311), 
 84, 87. 
 Lynn v. Baltimore & Ohio K. B. Co. 
 
 (60 Md. 404), 115. 
 Lyon V. Bertram (20 How. 149), 
 197. 
 V. Culbertson (83 111. 33), 272, 
 
 273, 302. 
 ■B. Jones (6 Humph. 533), 250. 
 V. Lenon (106 Ind. 667), 7. 
 V. Lenon (7 N. E. Eep. 311), 7. 
 V. Lyon (8 Ired. 24), 277. 
 V. Strong (6 Vt. 219), 308. 
 Lyons v. Briggs (14 E. I. 222), 168. 
 0. De Pass (11 Ad. & E. 326), 
 
 311. 
 V. Hamilton (69 Iowa, 47), 174. 
 V. Stephens (46 Ga. 141), 296. 
 Lytle V. Bird (3 Jones (N. C), 
 222), 167. 
 V. Beveridge (58 N. Y. 593), 
 277. 
 Lukens v. Freiund (27 Kan. 664), 
 
 187, 191. 
 Luke V. Grigg (30 N. W. Kep. 
 
 (Dak.) 170. 
 Lulston V. Norton (3 Burr. 1235), 
 
 298. 
 Lnmsden's Case (4 Ch^ Ap. 31), 18. 
 Lund V. Lund (1 N. H. 39), 227. 
 Lungstrass c. German Ins. Co. (48 
 
 Mo. 204), 39. 
 Lunn«. Thornton (1 C. & B. 379), 
 
 51. 
 Lupin V. Marie (6 Wend. 77), 121. 
 Lush V. Druse (4 Wend. 313), 335. 
 
 Maberly o. Sheppard (10 Bing. 99), 
 67, 116. 
 
 Mabbon v. Bimey (11 Wis. 107), 
 
 209. 
 Maberly v. Sheppard (10 Bing. 
 
 101), 69. 
 Maconnell v. Hughes (29 Wis. 537), 
 
 46. 
 MacAvoy v. Meldena (11 Allen, 
 
 648), 313. 
 Macdonnell v. McKay (15 Grant, 
 
 (Ont.) 391), 59. 
 Machaners B. Long (85 Pa. St. 158), 
 
 93. 
 Machette v. Wanless (1 Col. 225), 
 
 234. 
 V. Wanless (1 Col. 169), 240. 
 Mack V. Lee (13 R. I. 293), 291. 
 Mackaness v. Long (85 Pa. St. 
 
 158), 1. 
 Mackay v. Commercial Bank (L. 
 
 R. 6B. C. 394), 173. 
 Mackey v. Dillinger (73 Pa. St. 
 
 85), 278. 
 Maclay v. Harvey (90 111. 526), 34. 
 Macomber v. Parker (13 Pick. 176), 
 
 87, 96, 104, 205. 
 Macon West E. E. Co. v. Meador 
 
 (65 Ga. 725), 130. 
 Macpherson v. Watt (L. B. 3 App. 
 
 Cas. 254), 159. 
 Mactier v. Frith (6 Wend. 103), 38, 
 
 39. 
 Maddur v. Bevan (38 Md. 485), 14j. 
 Mader v. Jones (1 Russell & C. 82), 
 
 189. 
 Madison!). Zabriskie (11 La. (o. s.) 
 
 247), 77. 
 Maddox V. Sullivan (2 Eich. Eq. 
 
 4; 44 Am. Dec. 234), 260. 
 Magee ». Billingsley (3 Ala. 679), 
 
 87, 197. 
 V. Carmack (13111.289), 149. 
 V. Catching (33 Miss. 672), 224. 
 V. Scott (9 Cush, 148), 293. 
 Maggs V. Benedicks (49 Ala. 512), 
 
 84a. 
 
 655 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Masuasson v. JohcsoD (73111. 156), 
 
 224. 
 Magrath v. Tinning (6 Up. Can. Q. 
 
 B. (o. s.) 484), 332. 
 Magruder v. Gage (33 Md. 344; 
 
 3 Am. Eep. 177), 85, 89, 
 
 95. 
 Magwood V. Johnson (1 Hill Cli. 
 
 228), 30. 
 Mahalen v. Dublin, etc.. Distillery 
 
 Co. (11 Ir. E. C. L. 83), 
 
 76. 
 Maliler v. Schloss (7 Daly, 291), 5. 
 Maher v. Eiley (17 Cal. 415), 335. 
 
 V. Swift (14 Met. 324), 174. 
 Maillard v. Duke of Argyle (6 Man. 
 
 & G. 40), 146. 
 Mainprice v. Westley (6 Best. & S. 
 
 420), 165. 
 Maies v. Canvass (57 How. Pr. 504), 
 
 147. 
 Maire v. Garrison (83 N. Y. 14), 
 
 169. 
 Mair v. Blake (57 Iowa, 665), 233. 
 Makepiece v. Moore (10 111. 474), 
 
 277. 
 Maljin V. London Eice Mill Co. (20 
 
 L. T. (N. 8.) 705), 113. 
 Mallan v. May (11 M. & W. 653), 
 
 303. 
 Malcolm v. Loveridge (13 Barb. 
 
 372), 230,313,327. 
 Malins v. Freeman (2 Keen, 25), 
 
 285. 
 Malone v. Dougherty (79 Pa. St. 
 
 46), 196. 
 Mallory v. Willis (4 N. T. 76), 6. 
 Maltby v. Christie (1 Esp. 340), 
 
 282. 
 Mamnatt v. Emerson (27 Me. 308), 
 
 160. 
 Manahan v. Noyes (62 N. H. 232), 
 
 162. 
 Maney v. Eillongh (7 Yerg. 443), 
 
 84a. 
 656 
 
 Mandlebaum v. Gregovlch (17 Nev. 
 
 87), 306. 
 Manly, In re (3 N. Bank Eep. 291), 
 
 240. 
 Mann v. Ark, etc., Co. (24 Fed. 
 Eep. 261), 313. 
 V. Robinson (19 W. Va. 49), 
 269. 
 Manning v. Albee (11 Allen, 322), 
 166. 
 V. Johnson (26 Ala. 446), 20. 
 Manny v, Glendinniug (15 Wis. 
 
 50), 213. 
 Mansfield Machine Works v Vil- 
 lage of Lowell (29 N. W. 
 Eep. (Mich.) 105), 115. 
 Mansfield v. Converse (8 Allen,. 
 182), 6. 
 V. Felton (13 Pick. 206), 26. 
 V. Watson (2 Iowa, 111), 25. 
 Manser v. Bach (6 Hare, 448), 285. 
 Mansing v. Albee (11 Allen, 520), 
 
 168. 
 Manton v. Moore (7 T. E. 67), 105. 
 Manwell v. Briggs (17 Vt. 176), 
 
 206. 
 Maples V. Wrightman (4 Conn. 
 
 376), 18. 
 Marader v. Conell (62 N. Y. 220), 
 
 43. 
 Marble v. Moore (102 Mass. 443), 
 
 83. 
 Marbury v. Brooks (7 Wheat. 556), 
 
 175. 
 March ». Wright (46 111. 487), 9. 
 Marchesseau v. Chaffee (4 La. Ann. 
 
 24), 335. 
 Marchioness of Annandale v. Harris 
 
 (2P. Wms. 432), 305. 
 Margetson v. Wright (7 Blng. 603), 
 
 195. 
 Mark v. Whittenburn (2 Bam. & 
 
 Adol. 484), 317. 
 Markham v. Jandon (41 N. Y. 236), 
 271. 274. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Markie v. Hatfield (2 Johns. 45S), 
 
 149. 
 Markwald v. Creditors (7Cal.213), 
 
 131. 
 Maribita v. Imperial Ottoman Bank 
 (L. H. 3 Ex. D. 164), 85. 
 Marina, The (19 Fed. Eep. 160), 
 
 SfeS. 
 Marine Bank v. Wright (48 N. Y. 
 
 1), 86. 
 Morland v. Stanwood (101 Mass. 
 
 470), 101, 116. 
 Marmont v. State (48 Ind. 21), 12. 
 Marquett Mfg. Co. v. Jeffrey (49 
 
 Mich. 283), 325. 
 Marrjatts v. White (2 Stark. 101), 
 
 162. 
 Mars V. Conner (9 S. C. 70), 144. 
 Marsden v. Cornell (62 N. Y. 215), 
 
 239. 
 Marsh v. Burley (13 Neb. (1882) 
 261), 240. 
 V. Cook (32 Mo. J. Eq. 262), 
 
 162. 
 V. Hyde (8 Gray, 331), 63, 64. 
 V. Eedder (4 Camp. 257), 146. 
 V. Low (55 Ind. 271), 197. 
 V. McPherson (105 ij. S. 709), 
 
 335. 
 V. Pier (4 Eawle, 287), 43. 
 V. Kouse (44 N. T. 643), 69. 
 V. Titus (3 Hun, 550), 6. 
 V. Webber (13 Minn. 189), 
 
 159. 
 V. Whltmore (21 Wall. 178), 
 
 270. 
 V. Wickham (14 Johns. 167), 5. 
 V. Woodburry (1 Met. 436), 
 239. 
 Marshall v. Bait. & Q. R. R. Co. 
 (16 How. 314), 299. 
 V. Carson (38 N. J. Eqs. 260), 
 277. 
 Marshall County v. Hanna (67 
 Iowa, 472), 277. 
 
 Marshall v. Davis (1 Wend. 109); 
 324. 
 V. Drawhorn (27 Ga. 278), 195. 
 V. Ferguson (23 Cal. 65), 59, 
 
 67, 115. 
 V. Fowler (7 Hun, 237), 160. 
 V. Green (1 C. P. D. 35), 59. 
 V. Jamison (42 Up. Can. Q. B. 
 
 120), 39. 
 V. Marshall (42 Ala. 149), 144. 
 Marshuetz v. McGreevy (23 Hun, 
 
 408), 197. 
 Marshall v. Berry (67 Me. 78), 197. 
 V. Button (8 T. R. 545), 29. 
 V. Stephens (8 Humph. 159), 
 
 30. 
 o. Stewart (17 Ohio, 356), 227. 
 V. Williams (2 Biss. 255). 
 Marshton v. Marshton (64 Me. 
 
 476), 174. 
 Marston v. Baldwin (17 Mass. 606), 
 93, 217. 
 V. Knight (29 Me. 341), 197. 
 Martin v. Adams (104 Mass. 262), 
 1, 213, 325. 
 V. Black (21 Ala. 721), 38. 
 V. Ballou (14 Barb. 119), 218. 
 V. Blight (4 J. J. Marsh. 491), 
 
 169.. 
 V. Clarke (8 R. I. 389), 304. 
 V. Hill (12 Barb. 631), 239. 
 V. Hurlbut (9 Minn. 142), 87, 
 
 205. 
 V. Jordan (60 Me. 531), 164. 
 V. Martin (12 Ired. 268), 270. 
 V. Mathicot (14 Serg. & R. 214), 
 
 326. 
 V. Mayo (10 Mass. 137), 19. 
 V. McConnell (26 Ga. 205), 277. 
 V. McMillan (63 N. C. 486), 297. 
 V. McMillan (66 N. C. 199), 294. 
 V. Moulton (8 N. H. 504), 270, 
 
 272. 
 V. Remrock (2 Barr, 376), 146. 
 V. Pewtress (4 Burr, 2478), S27. 
 42 657 
 
TABLE OF CASES CITED. 
 
 Keferences are to Sections. 
 
 Martin D.Rantell (5 Rich. 541), 169. 
 V. Raid Cll G. B. (n. s.) 730), 
 
 274, 316. 
 V. Schoenberger (8 Watts & S. 
 
 367), 209. 
 V. Voeder (20 Wis. 466), 304. 
 V. Wade (37 Cal. 168), 298. 
 V. Watson (8 Wis. 315), 255. 
 Martindale v. Booth (3 Barn. & Ad. 
 498), 84. 
 V. Burch (67 Iowa, 291), 245. 
 Martineau v. Eitching (L. R. 7 Q. 
 B. 436), 87. 
 V. Kitching (L. R. 9 Q. B. 436), 
 82. 
 Martindale ». Smith (1 Q. B. 389), 
 
 86, 121. 
 Marvin v. Wallace (6 E. & B. 276; 
 25 L. J. Q. B. 369), 66, 
 69, 122. 
 Marvin's Safe Co. v. Norton (48 N. 
 
 J. L. 410), 325. 
 Marx V. Davis (56 Miss. 746), 249. 
 Mary v. Susan, The (1 Wheat. 25), 
 
 89. 
 Maryland Fertilizing Co. v. Lorentz 
 
 (44 Md. 218), 209. 
 Mason v. Bauman (62 111. 76), 270. 
 V. Bickle (2 Ont. App. 291), 325. 
 V. Chappel (ISGratt. 572), 190. 
 V. Chappell (15 Gratt. 672), 193. 
 B. Decker (.72 N. Y. 595), 333. 
 0. Decker (72 N. Y. 599), 334. 
 o. Dicker (72 N. Y. 698), 76. 
 V. Greatwestern Ry. Co. (31 
 Up. Can. Q.B. 73), 85,96. 
 V. Johnson (27 Up. Can. C. P. 
 
 208), 325. 
 V. Lathrop (7 Gray, 355), 12. 
 V. Martin (4 Ind. 124), 270. 
 V. Phillips (1 Add. 346), 150, 
 V. Raplee (66 Barb. 180), 168. 
 V. Thompson (18 Pick. 305), 84. 
 V. Wilson (43 Ark. 172), 126. 
 V. Wright (13 Met. 306), 17. 
 658 
 
 Massey v. Hardin (81 111. 330),26ff. 
 V. Banner (1 J. & W. 241), 282. 
 V. State (74 Ind. 368), 12. 
 Masson v. Bovet (1 Denlo, 69), 164. 
 Mast V. Pearce (53 Iowa, 582), 196. 
 Master v. Miller (4 T. R. 340), 304. 
 Masterton v. Mayor of Brooklyn (7 
 
 Hill, 62), 336. 
 Matasce v. Hughes (7 Oreg. 60) > 
 
 144. 
 Materne v. Horwitz (15 J. & Sp. 41 j 
 s. 0. 101 N. Y. 469), 294. 
 Matheny v. Mason (73 Mo. 677), 
 
 185, 186. 
 Mather v. Robinson (47 Iowa, 403), 
 168. 
 V. Dobschuetz (72 111. 438), 17. 
 Mathews v. Fish (64 Me. 101), 241. 
 
 V. Sowl (12 Neb, 398), 269. 
 Mathewson v. Kelly (24 Up. Can. 
 
 C. P. 698), 140. 
 Matson v. Melchor (42 Mich. 477), 
 
 829. 
 Matteson «. Ellsworth (33 Wis, 
 488), 144. 
 V. Holt (45 Vt. 886), 163. 
 Matthews v. Bliss (22 Pick. 48), 
 159, 171. 
 V. Dare (20 Md. 248), 147. 
 V. Light (32 Me. 305), 270. 
 V. Lucie (55 Vt. 308), 21G, 
 
 324. 
 V. Jordan (88 111. 602), 174. 
 V. Wallwyn (4 Ves. 418), 221. 
 V. Westphal (1 McCrary, 446), 
 240. 
 Matthiesson v. McMahan (38 N. J. 
 
 536), 22. 
 Mattingly v. Darwin (23 111. 61S), 
 233. 
 v. Nye (8 Wall. 370), 174. 
 Mattlson v. Baucns (1 N. Y. 95), 
 
 241. 
 Maughlin v. Tyler (47 Md. 546), 
 175. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Mauldrin ti. Armistead (14 Ala. 702; 
 
 s. c. 18 Ala. 600), 231. 
 Maumberg v. Young (44 N. Y. L. 
 
 331), 196. 
 Mauney v. Colt (80 N. C. 300), 148. 
 Maurle v. Hefieruan (13 John. 58), 
 
 288. 
 Maxey v. Gardner (9 B. Mon. 90), 
 
 292. 
 Maxwell v. Briggs (17 Vt. 176), 217. 
 V. Brown (39 Me. 98), 65. 
 V. Campbell (8 Ohio St. 265), 
 
 296. 
 «. Day (45 Ind. 509), 144. , 
 V. Lee (27 N. W. Rep. 196), 
 
 180, 189. 
 u. Lee (Minn.) 27 N. W. Eep. 
 196), 187. 
 Maxted v. Paine (L. E. 4 Ex. 81), 
 
 273. 
 Major V. Lansley (2 Buss. & My. 
 357), 30. 
 • B. Symmes (19 Ind. 117), SO. 
 Mayers. Clark (40 Ala. 259), 84a. 
 V. New York (63 N. Y. 455), 
 209. 
 Mayes v. Bruton (Tex. App., § 699), 
 
 310. 
 Mayfield v. Wadsley (3 B. & C. 357), 
 
 59. 
 Maynard v. Maynard (10 Mass. 
 456), 237. 
 V. Maynard (49 Vt. 297), 167. 
 V. Tabor (53 Me. 511), 34. 
 Maynes v. Atwater (88 Pa. St. 496), 
 
 84a. 
 Mayor of Alexander v. Fatten (4 
 
 Crancb, 317), 152. 
 May V. Eastiu (2 Port. .414), 225. 
 V. Gamble (14 Fla. 467), 144. 
 V. Hoaglan (9 Bush, 171), 88. 
 ». Mitchell (5 Humph. 365), 
 
 273. 
 V. Walter (56 N. Y. 8), 84a. 
 V. Ward (134 Mass. 127), 58, 76. 
 
 Mays V. Wherry (58 Tenn. 133), 
 
 262. 
 Maze V. Miller (1 Wash.C. C. 328), 
 
 146. 
 McAdams v. Cater (24 Mo. 223), 
 
 167. 
 McAllister v. Safely (65 Iowa, 
 
 719), 332. 
 McAlsler v. Haden (2 Campb. 
 
 438), 301. 
 McAndrews v. Tippett (39 N. J. 
 
 105), 336. 
 McArthur u. Bloom (2 Duer, 157), 
 
 29. 
 V. Carrie (32 Ala. 76), 259. 
 V. Caine (32 Ala. 75), 277. 
 McBain v. Austin (16 Wis. 87). 
 
 332. 
 McBomie v. Spader (3 Thomp., &c., 
 
 690; s. c. 1 Hun, 193), 
 
 320. 
 McBribe v. Silversthoone (11 Up. 
 
 Can. Q. B. 545), 46. 
 McCabe v. McKinistry (5 Dill. 
 
 509), 6. 
 ». Moorehead (1 Watts. & S. 
 
 513), 185. 
 McCaffrey v. Woodin (65 N. Y. 
 
 459), 63, 231, 232. 
 McCall V. Elliott (Dudley, 250), 
 
 284. 
 V. Hinckley (4 Gill, 128), 175. 
 V. Powell (64 Ala. 254), 203. 
 McCalla v. Bullock (2 Bibb. 288), 
 
 230. 
 McCandlish v. Newman (22 Pa. St. 
 
 460), 88. 
 McCann v. Kirlin (3 Allen, N. B. 
 
 345), 93. 
 V. Meyer (4 Bradw. 376), 
 
 Sia. 
 McCarren v. McNulty (7 Gray, 139), 
 
 213. 
 McCarron v. Cassidy (18 Ark. 34), 
 
 224. 
 
 659 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 McCarthy v. Grace (23 Minn. 182), 
 
 238. 
 V. Nash (14 Minn. 127), 63. 
 McCarty v. Blevins (13 Tenn. 196), 
 
 302. 
 V. Blevins (5 Yerg. 195), 52, 
 
 231. 
 V. Chalfant (14 W. Va. 631), 
 
 234. 
 V. Gordon (16 Kan. 35), 291. 
 McCiffon V. Baird (62 N. Y. 329), 
 
 186. 
 McClain v. Davis (77 Ind. 419), 21, 
 
 24. 
 McClanahan v. Barrow (27 Minn. 
 
 664), 311. 
 McClartey v. Gokey (31 Iowa, 505) , 
 
 99. 
 McClelland v. Nichols (24 Minn. 
 
 176), 206, 216. 
 McClelland w. -Scott (24 Wis. 81), 
 
 166, 172, 173. 
 McClenney v. McClenney (3 Tex. 
 
 192), 121. 
 McClintock's Appeal (7 Pa. St. 365), 
 
 69. 
 McCluney v. Jackson (6 Gratt. 96), 
 
 144. 
 McClunge v. Kelly (21 Iowa, 508), 
 
 83, 87, 190, 206. 
 McClure v. Briggs (68 Vt. 82), 213. 
 V. Tomey (107 Pa. St. 414), 
 
 106. 
 McClurg's Appeal (67 Pa, St. 51), 
 
 303. 
 McClure v. Williams (5 Sneed, 718), 
 
 334. 
 McCoUough V. Porter (4 Watts & 
 
 S. 177), 6. 
 McComb V. Wright (4 Johns. Ch. 
 
 689),78, 286, 288. 
 McCombs V. McKennan (2 Watts. 
 
 & S. 216), 96, 334. 
 McConike v. McManny (27 "Vt. 96), 
 
 294. 
 660 
 
 McConnellB. Murphy (L. E. SCO. 
 203), 102. 
 ». People (71 111. 481), 249. 
 McConnell v. People (84 111. 683), 
 221, 248, 250. 
 V. Scott (67 111. 274), 234, 241, 
 248. 
 McConnico v. Curzer (2 Call. 358), 
 
 278. 
 McCook V. Pond (72 Ga. 150), 277. 
 McCord V. Cooper (30 Ind. 9), 239. 
 McCormlck Machine Co. v. Ches- 
 rown (33 Minn. 32), 213. 
 V. Basal (46 Iowa, 235), 333. 
 V. Basal (50 Iowa, 523), 213. 
 V. Hadden (37 111. 370), 325. 
 V. Hamilton (23 Gratt. 561), 
 
 333, 335. 
 V. Kelly (28 Minn. 136), 183, 
 
 196, 269. 
 V. Littler (85111. 62), 23. 
 V. Sorson (45 N. Y. 265), 117, 
 197. 
 McCotter v. Mayor (37 N. Y. 325), 
 
 36. 
 McCourt V. Meyers (8 Wis. 236), 
 
 237. 
 McCoy V. Archer (3 Barb. 323), 186, 
 
 186. 
 McCrackers v. Knhn (73 Ind. 149), 
 
 256. 
 McCraw v. Welch (2 Col. 284), 
 
 S4a. 
 McCreary v. Gaines (65 Tex. 485), 
 
 273, 317. 
 McCrillis v. Allen (57 Vt. 605), 168. 
 McCroan v. Pope (17 Ala. 612), 30. 
 McCuUis V. Allen (67 Vt. 505), 35. 
 
 V. Bartlett (8 N. H. 569), 23. 
 McCulloch V. Eagle Ins. Co. (1 
 
 Pick. 281), 40. 
 McCuIly V. Hardy (13 111. App. 
 631), 310. 
 V. Swackhamer (6 Oreg. 438), 
 84a. 
 
TABLE OF CASKS CITKD. 
 
 Beferences are to Sections. 
 
 McCutcWn u. Piatt (22 Wis. 561), 
 
 237. 
 McDaniels v. Calvin (6 Vt. 300), 
 
 231. 
 McDonald v. Benriok (61 Mich. 
 79), 33. 
 V. Hewett (15 Johns. 849), 87, 
 
 93. 
 V. McPherson (12 Duvall (Can.) 
 
 416), 131. 
 V. Neilson (2 Cow. 139), 268. 
 V. Trafton (15 Me. 225), 160. 
 McDonough v. Squire (111 Mass. 
 256), 228. 
 V. Sutton (86 Mich. 1), 87. 
 «. Webster (68 Me. 630), 301. 
 McDougall V. Elliott (20 Up. Can. 
 
 Q. B. 299), 88. 
 McDowell o. McKenzie (65 Ga. 
 630), 268. 
 V. Sims (6 Ired. Eq. 278), 165. 
 ». Stewart (83 111. 588), 239, 
 240. 
 McDuffie V. Molntyre (11 S. C. 
 
 561), 253. 
 McElroyi). Buck (36 Mich. 434), 
 76. 
 V. Leery (61 Md. 397), 76. 
 0. Seerey (61 Md. 389; 48 Am. 
 Eep. (10), 125. 
 McEwen v. Morey (60 111. 32), 47. 
 McFadden v. Turner (3 Jones 
 
 (N. C), L. 481), 222. 
 McFarland v. Farmer (42 N. H. 
 386), 325. 
 a. Newman (9 Watts, 55), 180, 
 187, 188, 193, 216. 
 McFarrow'a Appeal (11 Pa. St. 
 
 503), 286. 
 McFetrldge v. Piper (40 Iowa, 
 
 627), 130. 
 McGavock v. Paryear (6 Cold. 34) , 
 
 294. 
 McGavran v. Haupt (9 Iowa, 83), 
 240. 
 
 McGee v. Titzer (87 Tex. 27), 231, 
 
 232. 
 McGibbon v. Schlessing (18 Hun, 
 
 225), 334. 
 McGiffen v. Baird (62 N. Y. 329), 
 
 186. 
 McGinns. Holmes (2 Watts, 121), 
 
 144. 
 McGinnis v. Hart (4 Bibb. 327), 
 
 224. 
 McGlinsay's Appeal (14 Serg. & E. 
 
 ^4), 277. 
 McGoon V. Shirk (54 111. 408), 143. 
 McGoven v. Avery (37 Mich. 20), 35. 
 McGowan v. McGowan (48 Miss. 
 
 553), 277. 
 McGown V. Wilkins (1 Paige, 120), 
 
 284. 
 McGraw v. Fletcher (85 Mich. 104), 
 
 182. 
 McGregor v. Hall (3 St. & P. 397), 
 
 239. 
 McGrew v. Forsyth (31 Iowa, 179), 
 
 193. 
 McGriff V. Porter (5 Fla. 373), 222. 
 McGuffey V. Finley (20 Ohio, 474), 
 
 245. 
 McGuinness v. Blight (11 R. I. 94), 
 
 292. 
 McGuire v. Benoit (33 Md. 181), 
 
 241. 
 V. Gadsby (3 Call. 324), 144. 
 McHose V. Fulmer (73 Pa. St. 365), 
 
 333, 336. . 
 McHouse V. Fulmer (74 Pa. St. 367), 
 
 335. 
 Mclntire v. Parks (3 Met. 207), 
 
 294. 
 Mcintosh V. Brill (20 Up. Can. C. 
 
 P. 426), 34. 
 V. Hill (1 S. W. Rep. 689 ; s, c. 
 
 47 Ark. 863), 325. 
 Mclntyre v. Kennedy (29 Pa. St. 
 
 448), 144, 146. 
 McJilton V. Love (13 111. 496), 314. 
 661 
 
TABLE OF CASES CITED. 
 
 References are 
 
 McKay v. Clapp (47 Iowa, 318), 
 
 84a. 
 
 McKee v. Garceloa (60 Me. 167; 
 
 11 Am. Eep. 200), 105. 
 
 V. Gracelan (6^ Me. 165), 84a. 
 
 V. Llneberger (69 N. C. 219), 
 
 266. 
 
 McHenry v. Haines (63 Me. 74), 
 
 335. 
 McKercher v. Curtis (35 Mich. 
 
 478), 335. 
 McKibben v. Martin (64 Pa. St. 
 
 352), 84a. 
 McKindley v. Dunham (55 Wis. 
 
 516), 142, 269. 
 McKinney v. Andrews (41 Tex. 363), 
 294. 
 V. Bradles (117 Mass. 321), 5, 
 213, 325. 
 McKinnon v. McEwan (47 Mich. 
 
 106), 336. 
 McKinster v. Babcock (20 N. Y. 
 
 375), 234. 
 McKintry v. Conly (12 Ala. 678) , 
 
 224, 228, 243. 
 McKnight v. Devlin (52 N. Y. 401), 
 186. 
 V. Devlin (52 N. Y. 299), 292. 
 V. Dunlop (5 N. Y. 537), 63. 
 V. Dunlop (1 Seld. 537), 335. 
 V. Gordon (11 Eich. Eq. 221), 
 
 222. 
 V. Gordon (13 Rich. Eq. -22), 
 282. 
 McLachlin v. Barett (34 Hun, 478), 
 
 317. 
 McLane v. Johnson (43 Vt. 48), 174. 
 McLaveni). Hall (26 Iowa, 298), 144. 
 V. Thompson (40 Me. 284), 239. 
 McLaughlin v. Horton (1 Hill, 383), 
 187. 
 V. Lange (42 Mich. 81), 84a. 
 o. Piati (27Cal. 463),88. , 
 0. Smith (45 Mich. 277), 243. 
 V. Ward (77 Ind. 883), 234. 
 662 
 
 to Sections. 
 
 McLay v. Perry (44 L. T. (n. s.) 
 
 152), 102. 
 McLean v. Breithaupt (12 Ont. App. 
 383), 130. 
 V. Flemmlng (L. R. 2. S. App. 
 
 128), 323. 
 
 V. Green (2 McMulI. 17), 284. 
 
 V. NichoU (7 H. & N. 1016), 75. 
 
 V. Richardson (127 Mass. 339), 
 
 334. 
 
 MeLelland v. Cumberland Bank (24 
 
 Me. 566), 284. 
 McLendas v. Frost (57 6a. 448), 162. 
 McLennan v. McDermid (52 Mich. 
 
 468), 332. 
 McLeod V. Bemhold (32 Ark. 671), 
 241. 
 V. Drummond (17 Ves. 154), 
 
 277. 
 V. Jones (105 Mass. 403), 97. 
 McLughan v. Bovard (4 Watts, 
 
 315), 144, 146. 
 McMahon v. Sloan (12 Pa. St. 229), 
 
 317. 
 McMaster v. Geddes (19 Up. Can. 
 Q. B. 216), 162. 
 V. Merrick (41 Mich. 505), 152. 
 McMechen v. Balimore (3 Har. & 
 
 J. 534), 281. 
 McMichael v. McDermott (17 Pa. 
 
 St. 353), 266. 
 McMillan v. Richards (9 Cal. 365), 
 221. 
 V. Venderlip (12 Johns. 167), 
 101. 
 McMilleni). Lamed (41 Mich. 521)-, 
 
 85. 
 McMinn v. Phillips (3 Sneed, 196), 
 
 169. 
 McMullen v. Helberg (4 L. R. Ir. 
 94), 74. 
 V. O'Reilly (16 Ir. Ch. 251), 277. 
 V. Riley (6 Gray, 500), 61. 
 V. Williams (5 Ont. App. 518), 
 196. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 McMurchey v. Eobinson (10 Ohio. 
 
 496), 99. 
 McMurry v. Mobley (39 Ark. 309), 
 
 270. 
 u. Taylor (30 Mo. 263), 144. 
 McMurtry v. Ramsey (25 Ark. 238, 
 
 349), 294. 
 McMurty i>. Eamsey (25 Ark. 360), 
 
 297. 
 McNab V. Young (81 111. 11), 327. 
 McNail V. Zlegler (68 111. 224), 
 
 120, 121. 
 McNamara v. Edmlster CH Hun, 
 
 697), 84. 
 McNair's Appeal (4 Eawle, 165), 
 
 277. 
 McNair v. Hunt (6 Mo. 301), 260. 
 McNaughter v. Cassaly (4 McLean, 
 
 530), 333. 
 McNeal v. Emerson (15 Gray, 384) , 
 
 97. 
 McNeelyt!. Hart (8 Ired. L. 492), 
 
 261. 
 McNeU V. Arnold (17 Ark. 164), 
 
 324. 
 V. Hill (1 Woolw. C. C. 96), 
 
 320. 
 V. McCamley (6 Tex. 163), 144. 
 V. Tentli Nat. Bank (46 N. Y. 
 
 325), 312, 271, 319. 
 V. Tentli Nat. Bank (55 Barb. 
 
 69j, 316. 
 McNeillyc. Cont. Ins. Co. (66 N. 
 
 Y. 23), 272. 
 McPIierson v. Gale (40 111. 368), 88. 
 McPortland v. Reed (11 Allen, 231), 
 
 238. 
 McQueen ji.Pamble (33 Mich. 344), 
 
 332. 
 McRae v. Merrifleld (48 Ark. 160), 
 
 325. 
 McTaggart v. Rose (14 Ind. 230)., 
 
 238, 239, 240. 
 McVeyo. Cantrell (70 N. Y. 295), 
 
 30. 
 
 Meach v. Patchln (14 N. Y. 71), 
 
 239. 
 Meacham ». Colliguor (7 Daly, 402), 
 170, 329. 
 V. Dow (32 Vt. 721), 298. 
 Mead v. Byington (10 Vt.ll6), 277. 
 V. Case (33 Barb. 202), 58. 
 ». Duray (3 Atk. 239), 277. 
 ». Golyer (16 Wend. 632), 34, 
 
 101. 
 V. Noyer (44 Conn. 487), 84o. 
 V. Randolph (8 Tex. 191), 228. 
 V. Gardner (13 R. I. 257), 84a. 
 Meader v. "White (66 Me. 99), 293. 
 Meadows v. Meadows (3 MoCord, 
 458), 78, 286. 
 V. Tanner (6 Madd. 34), 285. 
 Means v. Williams (37 Me. 566), 
 
 69, 84, 96o, 104. 
 Mears v. Waples (3 Houst. 582), 
 321. 
 V. Waples (3 Houst. 681; 4 
 Houst. 62), 170, 171, 327, 
 329. 
 V. Waples (4 Houst. 62), 325. 
 Mechanics' Assn. v. O'Connor, (29 
 
 Ohio St. 651), 185. 
 Mechanics', &c.. Bank v. Farmers', 
 &c.. Bank (60 N. Y. 47), 
 321. 
 V. Parmer's, &c.. Bank (60 N. 
 Y. 40), 317. 
 Mechanics' Building & Loan Assn. 
 V. Conover (14 N. J. Bq. 
 219), 243. 
 Mechanics', &c., Ins. Co. v. Kiger 
 (103 U. & S. 352), 273, 
 320. 
 Medbury v. Watson {6 Met. 246), 
 
 158, 162, 166. 
 Medina v. Norman (9 Mees. & W. 
 
 820), 113. 
 Meech v. Bennett (Hill &D. 192), 
 169. 
 V. Patchin (14 N. Y. 71), 240. 
 663 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Meeker v. Wilson (1 Gall. 419), 
 
 104, 174, 184a. 
 Megaw V. Moaloy (2 Ir. L. K. C. P. 
 
 D. 530), 35. 
 Meggottc. Mills (1 Ld. Raym. 286), 
 
 152. 
 Mehan v. Thompson (71 Me. 492), 
 
 144. 
 Mehlberg v. Fisher (24 Wis. 607), 
 
 144, 145, 148. 
 Meickley v. Parsons (66 Iowa, 63), 
 
 195. 
 Meincke v. Folk (55 Wis. 427), 58. 
 Melanconii. Eobichaux (11 La. 97), 
 
 187, 
 Melby v. Osborne (33 Minn. 492), 
 
 183. 
 Melchior v. McCarty (31 Wis. 252), 
 
 308. 
 Meldege u. Boston Iron Co. (5 
 
 Cush. 170), 144. 
 Meldmm v. Snow (9 Pick. 441), 8. 
 Melendy v. Keen (89 111. 395), 158. 
 Melvin v. Fellows (33 N. H. 401), 
 
 234. 
 Memphis, &c., R. B. Co. v. Freed 
 
 (38 Ark. 614), 126. 
 Menzier v. Dodd (19 Wis. 343), 238. 
 Mercer v. Newson (23 Ga. 151), 
 
 277. 
 V. Mercer (129 Iowa, 557), 174. 
 Merchant v. Chapman (4 Allen, 
 
 364), 291. 
 Merchants' Kat. Bank v. Bangs 
 (102 Mass. 291), 85. 
 V. Bangs (102 Mass. 296), 83. 
 V. Hibbard (48 Mich. 118), 122. 
 V. McLaughlin (1 McCarry, 
 
 258; 2 Fed. Rep. 128), 
 
 221, 233, 248. 
 Merch. Bank Co. v. Pboentx,&c., Co. 
 
 (L. R. 6 Ch. D. 219), 
 
 130. 
 Merchants' Bank;;. Splcer (6 Wend. 
 
 443), 77. 
 664 
 
 Merchants Nat. Bank v. Trenholm 
 
 (12 Heisk. 520),273. 
 V. Union R. R. Co. (69 N. Y. 
 
 373), 323. 
 Meredith v. Chancey (59 Ind. 466), 
 
 260. 
 V. Ladd (2 N. H. 518), 300. 
 V. Mergh (2 E. & B. 364; 22 L. 
 
 J. Q. B. 401), 95. 
 V. Meigh (2 E. & B. 370; 22 L. 
 
 J. Q. B. 401), 65. 
 V. Meigh (22 L. J. Q. B. 401 ; 
 
 2E. &B. 364), 68. 
 V. Meighs (2 B. & B. 364), 122. 
 Merriam o. Arbuckle (81 111. 601), 
 
 166. 
 V. Chapman (32 Conn. 146), 187. 
 V. Cunningham (11 Cush. 40), 
 
 17, 168. 
 V. Field (24 Wis. 640), 182, 188, 
 
 190, 196. 
 V. Lapsley (2 McCrary, 606), 36. 
 V. Pine City Lumber Co. (23 
 
 Minn. 314), 161. 
 V. WUkins (6 N. H. 432), 19. 
 V. Wolcott (3 Allen, 258), 215. 
 Merrick v. Boury (4 Ohio St. 60), 
 
 146. 
 ■u. Boury (5 Ohio St. 60), 144. 
 V. Bradley (19 Md. 50), 184. 
 Merrill v. Carr (60 N. H. 114), 
 
 296. 
 V. Dawson (Hemp. 563), 236, 
 
 240. 
 V. Emery (10 Pick. 567), 218. 
 V. Hunnewell (13 Pick. 213), 88. 
 V. Ithaca, &c., R. R. Co. (16 
 
 Wend. 586), 209. 
 V. Nightingale (39 Kan. 247), 
 
 189. 
 u. Parker (24 Me. 89), 84, 104. 
 V. Swift (18 Conn. 257), 234. 
 II. Wallace (91 N. H. 116), 188. 
 Merrimack Mfg. Co. v. Quintard 
 
 (107 Mass. 127), 335. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Merritt«. Clason (12 Johns. 102), 
 77. 
 V. Barle (29 N. Y. 120), 308. 
 V. Fleraing (42 Ala. 234), 296. 
 Merntt v. Robinson (35 Ark. 483), 
 163, 170. 
 V. Simpson (41 111. 391), 253. 
 Mersey Steele, &c., Co. v. Naylor 
 (L. R. 9 App. Cas. 434), 
 103, 210. 
 Mervlne ». White (50 Ala- 388), 
 
 221. 
 Merwin v. Smith (1 Green Ch. (N. 
 J.), 182), 260. 
 V. Arbuckle (81 lU. 501), 158, 
 160. 
 Mesner v. Granger (4 Gilm. 69), 
 
 190. 
 Messer v. Woodman (22 N. H. 172), 
 88, 205. 
 V. Woodman (22 N. H. 173), 
 
 104. 
 «. Woodman (22 N. H. 181), 68. 
 V. Woodman (22 N. H. 182), 
 69. 
 Messmore v. N. Y. Shot Co. (40 N. 
 
 Y. 422), 197, 212. 
 Metcalf V. Cook (2 R. I. 355), 30. 
 Metcalfe v. Fosdick (23 Ohio St. 
 
 114), 222. 
 Metropolitan Bank v. Taylor (62 
 
 Mo. 338), 30. 
 Metz' Appeal (11 Serg. & R. 204), 
 277. 
 V. Albrecht (52 111. 491), 104. 
 V. Mott (II Barb. 127), 303. 
 Mews V. Carr (1 Exch. 484) , 286. 
 MewSM. Carr (26 L. J. Ex. 39; 1 
 
 H. & C. 484), 78. 
 Meyer v. Amidou (23 Hun, 553), 
 168. 
 V. Hanchett (39 Wis. 419), 272. 
 V. Peck (28 N. Y. 590), 323. 
 V. Stone (46 Ark. 210), 142. 
 V. Wheeler (66 Iowa, 390), 336. 
 
 Meyer v. Baymore (10 Pa. St. 114), 
 275. 
 ■B. Fnnk (56 Iowa, 52), 158. 
 Meyerstein v. Barber (L. B. 2 P. C. 
 
 661), 321. 
 Mich. Cent. R. R. Co. v. Phillips 
 (60 111. 190), 85, 93, 235. 
 Michigan State Bank v. Gardner 
 
 (15Mass. 362),273, 317. 
 Mich. Ins. Co. v. Brown (11 Mich. 
 
 265), 284. 
 Michael v. Bacon (49 Mo. 474), 294. 
 Michael, Saccessiou ol (20 La. An. 
 
 233), 277. 
 Michelson v. Fowler (27 Hun, 159), 
 
 228. 
 Michoud V. Girod (4 How. 573), 
 
 270. 
 Middlesex Bank v. Mlnot (4 Met. 
 
 25), 273. 
 Middlesex Co. v. Osgood (4 Gray, 
 429), 96. 
 V. Osgood (4 Gray, 447), 84. 
 Middlesex v. Thomas (6 C. E. 
 Green, 39), 148. 
 V. Thomas (5 C. B. Green, 253) , 
 144. 
 Middleton v. Stone (111 Pa. St. 
 
 689), 5. 
 Midland Railway Co. v. Ontario 
 Rolling Mills (10 Ont. 
 App. 77), 210. 
 Milburn v. Belloni (34 Barb. 507), 
 
 269. 
 Miles, Ex parte (L. R. 15 Q. B. D. 
 i59), 132. 
 ». (16 Q. B. Div. 39), 126, 131. 
 Miles V. Foulke (5 Bing. N. C. 
 455), 152. 
 V. Gorton (2 Cr. & M. 504), 
 
 122. 
 V. Miller (12 Barb. 134), 335. 
 ». Miller (12 Bush. 134), 335, 
 
 336. 
 0. Roberts (34 N. H. 253), 96. 
 665 
 
TABLE OF CASES CITED. 
 
 Seferences are to Sections. 
 
 Millard «. Hall (24 Ala. 209), 8ia. 
 
 V. Hewlett (19 Wend. 301), 19. 
 Miller v. Barber (66 N. Y. 568), 
 
 158, 164,166. 
 V. Baynard (2 Houst. 559), 165. 
 V. Bingham (1 Ired. 423), 30. 
 V. Blinebury (21 Wis. 676), 
 
 237. 
 V. Bryan (3 Iowa, 58), 240. 
 V. Conklin (17 Ga. 430), 175. 
 V. Craig (36 111. 109), 21. 
 V. Finley (26 Mich. 249), 25. 
 V. Finn (1 Neb. 254, 287), 234. 
 V. Fitzgibbons (9 Daly, 505), 
 
 58. 
 V. Garman (69 Pa. St. 134), 84a. 
 V. Helm (2 Smed. & M. 687), 
 
 277. 
 V. Henderson (10 N. J. Eq. 
 
 320), 245. 
 V. Irvine (1 Dev. & Bat. 103), 
 
 76. 
 V. Jones (15 Nat. Bank Bep. 
 
 150), 239, 240. 
 V. Jones (66 Barb. 149), 93. 
 V. Lea (35 Md. 396), 273. 
 V. Lumsden (16 111. 161), 144, 
 
 146, 147. 
 V. McDonald (13 Wis. 673), 
 
 194. 
 V. Morgan (11 Neb. 121), 84a. 
 V. Padcoast (29 N. J. L. 250), 
 
 84a, 241. 
 «. Pearce (6 Watts & S. 101), 
 
 174. 
 ©.Post (1 Allen, 435), 290, 308 
 V. Smith (26 Minn. 248), 229. 
 V. Stetson (32 Ala. 161), 175. 
 V. Thompson (60 Me. 322), 314. 
 V. Trevillian (2 Rob. 1), 152. 
 V. Whitson (46 Mo. 97), 239, 
 
 240. 
 V. Williamson (5 Md. 219), 277. 
 V. Young (33 111.355), 158. 
 V. Young (36 111. 354), 166. 
 
 666 
 
 Millidgc V. Boston Iron Co. (5 Cush, 
 
 158; 51 Am. bee. 59), 96. 
 
 Milllken v. Chapman (75 Me. 322), 
 
 167. 
 
 V. Dehon (10 Bosw. 335), 274. 
 
 V. Thorndike (103 Mass. 385), 
 
 162. 
 c. iWarren (57 Me. 46), 119, 
 120. 
 Milliman v. Nahn (20 Barb. 38), 62. 
 V. Neber (20 Barb. 37), 51. 
 V. Nehen (20 Barb. 37), 231. 
 Milner v. Patton (49 Ala. 423), 294. 
 V. Post (1 Allen, 134), 306. 
 1). Tucker (1 C. & P. 15), 163. 
 V. Gery (14 Ves. 400), 45, 46. 
 MUes 17. Gorton (2 C. & M. 504), 
 119. 
 V. Graham (4 B. &C. 140), 168. 
 V. Hunt (17 Wend. 333; 20 
 Wend. 431), 61. 
 Mills V. Hunt (20 Wend. 431), 288. 
 V. Levy (2 Edw. Ch. 183), 
 
 176. 
 V. Mills (26 Conn. 213), 270. 
 V. Rogers (2 Litt. 217), 169. 
 V. Warner (19 Vt. 609), 84o. 
 V. Williams (16 S. C. 693), 250, 
 308. 
 Millspaugh v. Mitchell (8 Barb. 
 
 333), 324. 
 Miltenberger v. Morrison (39 Mo. 
 
 71), 169. 
 Milton V. Mosher (7 Met. 244), 
 
 236. 
 Miltenberger v. Parker (17 La. An. 
 
 254), 84a. 
 Mimme v. Kuykendall (85 111. 476), 
 
 174. 
 Minnard v. Mead (7 Wend. 68), 29. 
 Miner v. Bradley (22 Pick. 457), 
 163. 
 V. Judson (2 Hun, 441), 221. 
 Mining Co. v. Jones (108 Pa. St. 
 55), 188. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Minnesota Oil Co. v. Collier Lead 
 Co. (4 Dill. 431), 38. 
 B. Collier Lead Co. (4 DiU. 
 431), 39. 
 Minneapolis, &c.. Railway v. Col- 
 umbus Rolling Mill (119 
 U. S. 149), 30, 34. 
 V. Hally (27 Minn. 495), 210. 
 Minnesota Co. v. St. Paul Co. (2 
 
 Wall. 609), 236, 284. 
 Mires v. Solenby (2 Mod. 243), 82, 
 
 87. 
 Mississippi Mills v. Bank (9 Lea, 
 
 314), 130. 
 Missouri Furnace Co. v.- Cochran 
 (8 Fed. Rep. 463), 335. 
 V. "Waldo (2 Nott & McC. 76), 
 187. 
 Mitchell V. Badgett (3 Ark. 387), 
 222. 
 V. Black (6 Gray, 100), 232, 240. 
 17. Dall (2 Harr. & G. 159; 4 
 
 Gill & J. 361), 152. 
 V. Gile (12N. H. 390), 12. 
 V. Harmony (13 How. 115), 252. 
 V. Kingman (5 Pick. 431), 21. 
 u. Le Page (Holt N. P. 583), 33. 
 V. McLean (7 Fla. 329), 105. 
 0. Reynolds (1 P. Wms. 181), 
 
 303. 
 V. Scott (41 Mich. 108), 332. 
 V. Smith (1 Binn. 110), 290, 
 
 306. 
 ». West (55 N. Y. 107), 84a. 
 V. Winslow (2 Story, 630), 53, 
 
 200. 
 V. Winslow (2 Story, C. C. 634), 
 
 232. 
 V. Worden (20 Barb. 253), 170. 
 V. Zimmerman (4 Tex. 75), 160. 
 Mitchiei). Townsend (2 Sandf. 299), 
 
 239. 
 Mltchinson v. Hewson (7 T. R. 
 
 348), 28. 
 Mitford V. Mitford (9 Ves. 87), 240. 
 
 Mitter v. Harris (9 Ind. 88), 84a. 
 Mix V. Cowles (20 Conn. 420), 
 
 234. 
 Mixer v. Coburn (11 Met. 559), 187, 
 
 190. 
 V. Howarth (21 Pick. 205), 58, 
 
 210. 
 MLxey v. Cook (31 Me. 340), 85, 86, 
 
 217. 
 Mizell V. Burnett (4 Jones L. 249), 
 
 218. 
 Moak V. Bourne (13 Wis. 514), 246. 
 Moakes v. Nicholson (19 C. B. (n. s.) 
 
 290; 34 L. J. C. P. 273), 
 
 85. 
 Moale V. Buchanan (11 Gill. & J. 
 
 322, 75. 
 Mobile Sav. Bank v. Fry (69 Ala. 
 
 350), 88. 
 Mockbee c.' Gardner (2 Harr. & G. 
 
 177), 185, 277. 
 Moeller v. Young (5 B. & B. 7; 24 
 
 L.J. Q. B. 217; 25 L. J. 
 
 Q. B. 94), 122. 
 Mody V. Gregson (L. E. 4 Ex. 49), 
 
 197. 
 Moffatt V. Green (9 Ind. 198), 205. 
 V. McDowell (1 McCord, Eq. 
 
 434), 175. 
 Moffltt V. Moffltt (69 ni. 641), 260. 
 Moherin v. Ball (Cal.) 8 Pac. Kep. 
 
 886), 114. 
 Mohr V. Boston, &c., R. R. Co. (106 
 
 Mass. 72), 130, 131. 
 ». Tulip (40 Wis. 66), 21. 
 Moinett v. Day (57 Tenn. 431), 
 
 270. 
 Moline Scale Co. v. Reed (52 Iowa, 
 
 307), 88, 332. 
 Moline Wagon Co. v. Rummell (2 
 
 Crary, 301), 230. 
 Molineaux v. Coburn (6 Gray, 124) , 
 
 237. 
 Molitor V. Robinson (40 Mich. 200), 
 
 84a. 
 
 667 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Mollett V. Robinson (L. R. 5 C. P. 
 
 655), 272. 
 Molton V. Camronx (2 Exch. 487) , 
 25. 
 V. Cameron (4 Exch. 17), 22. 
 Monahan v. Elan (13 Mo. App. 
 585), 196. 
 V. Noyes (52 N. H. 232), 163. 
 Monscriff v. Goldsborrough (4 Har. 
 
 & McH. 283), 165. 
 Mondell^;. Steel (8 N. & W. 858), 
 
 35, 197. 
 Monnot v. Ibert (33 Barb. 24), 234. 
 Monroe v. Bowen (26 Mich. 623), 
 200. 
 C.Hamilton (6 Ala. 226), 230. 
 V. Hamilton (60 Ala. 233), 239. 
 V. Huff (5 Den. 369), 144. 
 V. SmeUey (25 Tex. 586), 301. 
 V. Smith (79 Pa. St. 459), 174. 
 Montany v. Rock (10 Mo. 506), 228. 
 Monte Allegro, The (9 Wheat. 616), 
 
 185,311, 616, 645. 
 Monteith v. Babn (14 Wis. 210), 
 
 277. 
 
 Montgomery v. Agricultural Bank, 
 
 (lOSmed. & M. 567), 30. 
 
 Montgomery v. Barrow (19 La. An. 
 
 169, 265. 
 
 V. Bucyrus Machine Works (22 
 
 U. S. 257). 
 V. Chadwick (7 Iowa, 114), 224. 
 V. Hunt (5 Cal. 366), 104, 106. 
 V. Kerr (1 Hill (3. C.),291), 
 
 241. 
 V. Middleton (18 Ir. C. L. 173), 
 
 214. 
 V. Wight (8 Mich. 143), 233. 
 Monton v. Noble (1 La. An. 192), 
 
 281. 
 Moody V. Blake (177 Mass. 23), 
 268, 310, 327. 
 V. Hazelden (1 S. C. 129), 221, 
 
 238, 248. 
 V. Mahurin (4 N. H. 296), 140. 
 668 
 
 Moody V. Wright (13 Met. 17), 61, 
 
 231. 
 V. Wright (13 Met. 32), 232. 
 Moon V. Harder (38 Mich. 566), 332. 
 Moorehouse v. Comstock (42 Wis. 
 
 626), 191. 
 Mooney o. Miller (102 Mass. 217), 
 
 166. 
 V. Miller (102 Mass. 220), 158. 
 Moore v. Byram (10 S. C. 452), 52, 
 
 231, 232. 
 r). Campbell (10 Ex. 323) (23 L. 
 
 J. Ex. 310), 102. 
 V. Owsley (37 Tex. 603), 284. 
 V. Floyd (4 Oreg. 101), 84a. 
 c. Fuller (6 Oreg. 272), 234. 
 D. Hart (Vera. 110), 74. 
 V. Hershey (90 Pa. St. 196), 21, 
 
 22, 24. 
 V. Hilton (12 Leigh, 1), 277. 
 V.Logan (5 Up. Can. C. P. 
 
 294), 93. 
 V. Mandlebanm (8 Mich. 433), 
 
 270 
 V. McKinley (5 Cal. 471), 187. 
 V. Metropolitan Nat. Bank (56 
 
 N. Y.41), 319. 
 V. Mourgue (Cowp. 480), 283. 
 V. Mountcastle (61 Mo. 424), 
 
 74, 75. 
 V. Merdock (26 Cal. 514), 504, 
 
 221,222, 243, 293. 
 V. Mnrdock (26 Cal. 526), 308. 
 V. Piercy (1 Jones (N. C.) 
 
 131), 5, 213. 
 V. Plerson (6 Iowa, 279), 39. 
 u. Robinson (62 Ala. 537), 323. 
 ». Young (4 Biss. 128), 240. 
 Moral School Township v. Harri- 
 son (74Ind.93), 197. 
 More V. Lott (13 Nev. 376), 127, 
 
 130, 135. 
 Morehead v. Hunt (l Dev. Eq. 411), 
 
 165. 
 o. Hunt (1 Dev. Eq. 35), 165. 
 
TABLR OF CASES CITED. 
 
 References are to Sections. 
 
 Morehouse ». Comstock (42 Wis. 
 
 626), 181. 
 Morehouse v. Ycager (9 Jones & S. 
 
 135;, 160. 
 Moreland v. Bernhardt (44 Tex. 
 275), 228. 
 V. Myall (14 Bush, 474), 59. 
 Moreley v. Attenborough (2 Ex. 
 
 600), 186. 
 Moresl v. Swift (16 Nev. 215), 238. 
 Morey v. Webb (25 Barb. 22), 271. 
 Mordis o. Kennedy (23 Kan. 408), 
 
 145. 
 Morgan v. Bogue (7 Nob- 429), 84o. 
 V. Dodd (3 Col. 653), 4. 
 V. Elam (9 Yerg. 375), 30. 
 V. Gath (3 Hurl. & C. 748), 101. 
 V. Griffiith (L. R. 6 Bxch. 70), 
 
 196. 
 c. McKee (77 Pa. St. 228), 209. 
 V. Olivey (53Ind.6), 174. 
 V. Pebrer (4 Scott, 230), 301. 
 V. Perkins (1 Jones (N. C), 
 
 171), 87. 
 V. Richardson (13 Allen, 410), 
 
 164. 
 !). Shlnn (15 Wal. 105), 228. 
 Morlarty v. Stofferan (89 111. 528), 
 
 332. 
 Morley v. Boothby(3 Bing. 107),76. 
 Mowell ». Fisher (4 Exch. 591 ; s. 
 c. 19 L. J. Exch. 273), 
 233. 
 Morrill V. Bbackman (42 Conn. 
 324), 170, 171. 
 V. Nightingale (39 Wis. 247), 
 
 197. 
 ». Noyes (56 Me. 468), 53. 
 V. Sanford (49 Me. 666), 239, 
 
 240. 
 V. Wallace (9 N. H. Ill), 193. 
 Morris' Appeal (71 Pa. St. 106), 
 
 270. 
 Morris v. French (106 Mass. 326), 
 59 
 
 Morris v. Harvey (75 Va. 726), 146. 
 V. Lake (9 Sm. & M. 621), 255. 
 V. Levlson (1 C. P. D. 156), 
 
 102. 
 V. Nixon (7 Hump. 579), 25. 
 V. Rexford (18 N, Y. 652), 85. 
 V. Ruddy (26 N. J. Eq. 236), 
 
 272. 
 V. Shyrocls (60 Miss. 591), 130. 
 V. Thompson (85 HI. 16), 186, 
 
 187. 
 V. Tilson (81 111. 607), 174, 234, 
 
 249. 
 V. Woodward (25 N. J. Eq. 32), 
 
 168. 
 Morris Run Coal Co. v. Barclay Coal 
 
 Co. (68 Pa. St. 173), 303. 
 Morrison v. Dingley (63 Me. 563), 
 
 88. 
 V. Lods (39 Cal. 385), 162. 
 V. Lovejoy (6 Minn. 224), 336. 
 ». Logh (39 Cal. 381), 163. 
 o. Morrison (6 Watts & S. 518), 
 
 284. 
 i). Smith (81 111. 221), 144. 
 V. Thistle (67 Mo. 596), 30. 
 V. Shnster (1 Mackey, 190), 
 
 170. 
 V. Univ. Marine Ins. Co. (L. 
 
 8 Ex. 197), 327. 
 
 V. Welty (18 Md. 169), 144. 
 
 V. Woodley (84 HI. 192), 88. 
 
 Morrow v. Reed (30 Wis. 81), 87, 
 
 232, 238, 240. 
 V. Tnrney (35 Ala. 131), 225, 
 
 238. 
 V. Weed (4 Iowa, 77), 260. 
 V. Whitsides (10 B. & Mon. 
 
 411), 28. 
 Morse ». Bracket!) 98 Mass. 200), 
 
 180. 
 V. Brackett (98 Mass. 206), 
 
 197. 
 V. Powers (17 N. H. 286), 238. 
 V. Royal (12 Ves. 355), 283. 
 -669 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Morse v. Shaw (12JI Mass. 69), 166, 
 
 172. 
 V. Sherman (106 Mass. 430), 
 
 94, 104, 832. 
 «. Sherman (106 Mass. 433), 83. 
 V. Stone (5 Barb. 516), 8. 
 V. Wheeler (4 Allen, 470), 19 
 Mortimer ». Bell (L. R. 1 Ch. 10), 
 
 165. 
 V. McCallan (6 M.& W. 38), 51, 
 
 302. 
 V. Bagsdale (62 Miss. 86), 320. 
 Morton v. Dean (13 Met. 385), 57, 
 
 76, 286. 
 cDean (13 Met. 388), 75, 76. 
 V. Eagan (5 Bush, 334), 84o. 
 V. Ragan (5 Bush, 335), 106. 
 V. Scull (23 Ark. 289), 271. 
 V. Steward (5 Bradw. 633), 17. 
 V. Tibbetts (15 Q. B. 428; 19 L. 
 
 J. Q. B. 382), 68. 
 Mosely o. Shutuck (43 Iowa, 540), 
 
 206. 
 V. Shatuck (43 Iowa, 540), 325. 
 Moses 0. Coham (Owen, 123), 316. 
 V. Fogartie (2 Hill (S.C), 335), 
 
 29. 
 o. Mead (1 Denio, 373), 187. 
 ■u. Mead (1 Denio 378; 5 Denio, 
 
 617), 188, 191. 
 V. Walker (2 Hilt. 646), 240. 
 V. Rasin (14 Fed. Rep. 772), 
 
 335. 
 Moss V. Adams (4 Ired. Eq. 42), 
 
 152. 
 V. Green (10 Leigh, 261), 224. 
 V. Meshen (8 Bush, 187"), 88. 
 0. Sweet (3 Eng. L. &Eq. 311), 
 
 213. 
 V. Sweet (16 Q. B. 493), 5, 36, 
 
 325. 
 Mott». Clark (9 Pa. St. 399), 245. 
 V. Harrington (12 Vt. 199), 270. 
 V. Havana Nat. Bank (22 Hun, 
 
 364), 210. 
 670 
 
 Morse v. McNiell (1 Alk. 162), 84a. 
 Mottram v. Heyer (6 Denio, 626), 
 
 130, 136. 
 V. Heyer (6 Denio, 632), 321. 
 Moulton V. Kershaw (59 Wis. 316), 
 
 33. 
 V. Robinson (27 N. H. 560), 
 
 231. 
 V. Trask (9 Met. 677), 332. 
 Mount w. Harris (1 Sm. & M. 185), 
 
 326. 
 Mount AUegre, The (9 Wheat. 
 
 647), 183. 
 Mount Holly Turnpike Co. v. Feree 
 
 (2C. E.Green, 117), 319. 
 Mount Hope Iron Co. v. Buffington 
 
 (103 Mass. 62), 89, 104. 
 
 205. 
 Mountonr v. Perdy. (11 Minn. 384), 
 
 260. 
 Mowbray v. Cady (40 Iowa, 604), 
 
 213. 
 Mower ». Peabody (3 Keam, 121), 
 
 321. 
 Mowery v. Walsh (8 Cow. 238), 
 
 168. 
 Mowlaa v. Cain (3 Allen, 262), 166. 
 Mowrey v. Gilbert (1 Hannay, 645), 
 
 59. 
 Mowrey v. Walsh (8 Cow. 238), 
 
 311, 329. 
 Mowry v, Nat. Bank (64 Wis. 38), 
 
 247. 
 V. Sanborn (68 N. T. 163), 260. 
 V. Wilsh (8 Cow. 238), 313. 
 V. White (21 Wis. 417), 232. 
 V. Wood (12 Wis. 413), 221, 316. 
 Mueller u. State (7 Ind. 310), 308. 
 Muckey o. Howensteln (3 Thomp. 
 
 & C. 28), 84. 
 Mucklow V. Mangles (1 Taunt. 318), 
 
 89. 
 Mudge V. Oliver (1 Allen, 74), 35. 
 Muir V. Blake (57 Iowa, 662), 
 
 233. 
 
TABLE OP CASES CITED. 
 
 References are 
 
 Muldon V. Whitlock (I Cow. 290), 
 
 14S. 
 Mullain v. Thomas (43 Conn. 252) , 
 
 182, 196. 
 
 Mullen V. ■Wilson (44 Pa. St. 413), 
 
 174. 
 MuUer «. Ponder (55 N.Y. 325) ,126. 
 MuUiken v. Millar (12 R. I, 296), 
 
 170. 
 Mundroff v. Wickersham (63 Pa. 
 
 St. 87), 173. 
 Munford v. McPlierson (1 Johns. 
 
 414), 196. 
 Munsell v. Carew (2 Gush. 50) 231. 
 Muogat B. Purapelley (46 Wis. 660), 
 
 204. 
 Murch V. Wright (46 111. 487) 203, 
 
 323. 
 Mureford, Ex parte (15 Ves. 289), 
 
 305. 
 Murphy v. Doese (2. L. B. 10 Ex. 
 126), 78. 
 V. Bottomer (40 Mo. 57), 296. 
 «. Hill (77 Ind. 129), 261. 
 V. Hulbert (16 Pa. St. 50), 174. 
 V. Parifay (52 Ga. 480), 224. 
 V. Simpson (14 B. Mon. 419), 
 
 308. 
 V. Thompson (14 B. Mon. 419), 
 
 308. 
 V. Webber (61 Me. 478), 152. 
 Murray ». Brooks (41 Iowa, 45), 
 
 183, 269. 
 
 V. Mann (2 Exch. 538), 163, 
 
 282. 
 V. Eiggs (15 Johns, 671), 176. 
 V. Smith (4 Daly, 277), 183, 
 
 269. 
 V. Erskine (109 Mass. 697), 
 221,248. 
 Murry v. Carlin (67 111. 286), 25. 
 Musgat B.Fumpelly (46 Wis. 660), 
 
 221, 222, 246, 248. 
 Musgrove v. Kennell (23 N. J. Eq. 
 75), 245. 
 
 to Sections. 
 
 Muskegon Boom Co. v. Underbill 
 
 (43 Mich. 629), 84, 87. 
 Musics. Dodson (74 Mo. 624), 27. 
 Musselman v. Cravens (47 Ind. 1), 
 21. 
 B. Eshleman (10 Pa. St. 401), 
 277. 
 Mustard v. Wohlford (15 Gratt. 
 
 329), 18. 
 Mutter V. Wheeler (2 Low. 346), 8. 
 Mutual Life Ins. Co. v. Drake (1 
 Abb. N. C.381), 239. 
 V. Hunt (79 N.Y. 541), 22. 
 Myatts V. Bell (41 Ala. 222), 144. 
 Myer ». Car. Co. (102 W. S. 1), 203. 
 V. Wheeler (65 Iowa, 390), 188, 
 Myers v. Harvey (2 Pa. St. 478), 
 84a. 
 0. Ladd (28 111. 415), 233. 
 V. Meinrath (101 Mass. 366), 
 
 293, 308. 
 W.Raymond (5 Fla. 516), 284. 
 V. Saunders (7 Dana, 506), 20, 
 
 285. 
 ». Smith (48 Barb. 614), 34. 
 u. White (1 Rawle, 353), 221. 
 
 Jf. 
 
 N. A. & S. R. V. Huff (19 Ind. 444), 
 
 175. 
 Nance B. Metcalf (19 Mo. App. 183), 
 
 84. 
 Nangatuck Cutlery Co. v. Babcock 
 
 (22 HuD, 481), 168. 
 Nantes v. Thompson (2 East, 285) , 
 
 301. 
 Nash V. Ely (19 Wend. 523), 238. 
 V. Hodgson (6 De. G. M. & G. 
 
 474), 152. 
 V. Mosher (19 Wend. 431), 324. 
 V. Norment (5 Mo. App. 545), 
 238. 
 Natch V. Fowler (28 Mich. 205), 84a. 
 671 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 National Bank v. Bangs (102 Mass. 
 
 291), 89. 
 V. Bigler (83 N. Y. 51), 144, 
 
 162. 
 V. Crowley (24 Mich .492), 88. 
 V. Merchant's Bank (91 U. S. 
 
 98), 85, 321. 
 V. Merchant's Bank (100 Mass. 
 
 104), 85. 
 V. Seward .(106 Ind. 264), 270. 
 V. Sprague (20 N. J. Bq. 13, 
 
 159),, 165, 169, 234, 238. 
 V. Sprague (21 N. J. Eq. 530), 
 
 240. 
 Nat. Filtering Oil Co. v. Citizens' 
 
 Ins. Co. (106 N. T. 635), 
 
 336. 
 Nat. Fire Ins. Co. v. Loomis (11 
 
 Paige, 431), 165. 
 National Guardian Ass. Co., Ex 
 
 Parte (10 Ch. D. 408), 
 
 241. 
 National Ins. Co v. Webster (83 
 
 111. 470), 228. 
 National Mercantile Bank v. Hamp- 
 
 son (5 Q. B. D. 177), 
 
 243. 
 Nat. Shoe & Leather Bank v. Small 
 
 (7 Fed. Rep. 837), 232, 
 
 240. 
 Naught V. Dodson (49 111. 446), 333. 
 Navarro, Succession of (24 La. An. 
 
 105), 287. 
 Navulshow v. Brownsigg (2 De 
 
 Gex, M. & G. 441), 317. 
 Naylor »,Dennie (8 Pick. 198), 130, 
 
 135. 
 V. Young (7 Lea, 735), 121. 
 Neaffle B.Hart (4 Lans.4), 116. 
 Neate v. Ball (2 Bast, 123), 176. 
 Neal V. Gillaspy (56 Ind. 451), 186. 
 Neal V. Patten (40 Ga. 363), 259. 
 
 V. Williams (18 Me. 391), 327. 
 Neave v. Arntz (56 Wis. 124), 182, 
 
 193,215. 
 
 672 
 
 Neave v, Arntz (56 Wis. 176), 180. 
 Neele v. Berryhill (4 How. 16), 
 
 239. 
 Neely ». Wood (10 Yerg. 486), 
 
 174. 
 Neelis v. Clark (4 Hill, 424), 174. 
 Neelson v. Sanborne (2 N. H. 414), 
 
 76. 
 Neely v. Jones (16 W. Va. 626), 
 
 14L 
 Neff o. Clute (12 Barb. 466), 164. 
 Neidefer v. Cbastaln (71 Ind. 363), 
 
 162. 
 Neidig V. Eifler (18 Abb. Pr. 353), 
 
 222. 
 Neill V. Whitworth (L. K. 1 C. P. 
 
 684; 18C.B. (n. 8.)43o; 
 
 34 L. J. C. P. 155), 208. 
 Neilson v. Churchill (5 Dana, 333), 
 
 264. 
 Neldon v. Smith (36 N. J. L. 148), 
 
 100, 103. 
 V. Smith (7 Vroom, 148), 214. 
 Nelson v. Aldridge (2 Stark. 435), 
 
 282. 
 V. Brannonburg (81 Ind. 193), 
 
 262. 
 V. Brown (44 Iowa, 455; 53 
 
 Iowa, 565), 6, 7. 
 V. Couring (6 Hill, 336), 183, 
 
 269, 273. 
 V. Garey (15 Neb. 531), 175. 
 N. H. Bank v. WiUard (10 N. H. 
 
 210), 234. 
 Nelson v. Nelson (6 Gray, 386), 69, 
 
 231. 
 V. Bobson (17 Minn. 284), 140. 
 Nelson v. EochweU (14 111. 375), 
 
 329. 
 V. StoUenwersk (67 Ala. 140), 
 
 277. 
 V. Wheelock (46 111. 26), 241. 
 Nerotc. Wallace (3 T. R. 17), 296. 
 Nervine v. White (50 Ala. 388), 
 
 248. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Nesbit V. Buiry (25 Pa. St. 208), 
 205. 
 V. Burry (25 Pa. St. 209), 87, 
 88. 
 Nesbitt V. Lockman (Si N. Y. 107), 
 270. 
 V. St. Paul Lumber Co. (21 
 Minn. 491), 313. 
 Nettletonw. Sikes (8 Met. 34), 59. 
 Nevins v. Scofleld (2 Bugs. & Bur. 
 
 (N. B.), 435), 119. 
 Newberry v. Detroit, etc., Iron Co. 
 (17 Mich. 141), 319. 
 V. Wall (84 (N. Y.) 576), 76, 79. 
 Newbold v. Wriglit (4 Bawle, 195), 
 
 273. 
 Newby n. Hill (2 Met. (Ky.) 530), 
 239. 
 V. Rogers (40 Ind. 9), 99. 
 Newby v. Sharp (L. R. 8 Ch. D. 39), 
 
 218. 
 Newcomb v. Brackett (16 Mass. 
 161), 211. 
 V. Brooks (16 W. Va. 32), 270. 
 «. Buchanan Co. v. Baskett (11 
 
 Bush. 658), 316. 
 V. Buchanan Co. v. Baskett (1 4 
 
 Bush. 658), 329. 
 V. Cabell (10 Bush. 460), 84. 
 V. De Ross (2 E. & E. 271), 42. 
 Newell V. Horn (49 N. H. 422), 152, 
 162. 
 V. Radford (L. R. 3 C. P. 52 ; 37 
 
 L. J. C. P. 1),76. 
 V. Warren (44 N. Y. 244), 239. 
 V. Warner (44 Barb. 293), 233. 
 New Eng., &c., R. R. Co. v. Hend- 
 rickson (13 Neb. 575), 
 268. 
 Newhall v. Cen. Pac. R. R. Co. (51 
 Cal. 345), 122, 124, 821, 
 323. 
 V. Kingsbury (131 Mass. 445), 
 
 325. 
 V. Langdon (39 Ohio St. 87), 88. 
 
 Newhall v. Vargas (13 Me. 93), 126, 
 136. 
 V. Vargas (13 Me. 107), 133. 
 Newhall v. Vagas (13 Me. 108), 
 128. 
 V. Vargas (13 Me. 93), 125. 
 New Haven, etc., R. R. Co. v. 
 Quintard (31N.Y. S. C. 
 89), 98. 
 Newlint?. Freman (4Ired. 312), 30. 
 Newman v. Hook (37 Mo. 207), 261. 
 V. Meek (1 Freem. Ch. 441), 
 
 169. 
 V. Morris (4 H. & McH. 221), 
 
 56. 
 V. Tymeson (13 Wis. 172), 233. 
 New March v. Clay (14 East, 239), 
 
 152. 
 Newport Bridge Co. v. Douglass 
 
 (12 Bush. 673), 274. 
 Sewv. Swaiu (1 Dans. & L. 123), 
 
 120. 
 Newson u. Thornton (6 East, 41), 
 
 321. 
 New Sombrero Phosphate Co. v. 
 Erlanger (L. R. 5 Ch. D. 
 73), 159. 
 Newson v. Beard (45 Tex. 151), 222. 
 Newton v. Pay (10 Allen, 505), 4. 
 
 V. Roe (33 Ga. 163), 277. 
 New York, &c., R. R. Co. v. Shuyler 
 
 (34 N. Y. 30), 173, 389. 
 N. B. & N. S. Lond Co. a. Kirk (1 
 
 Allen N. B. 443), 59. 
 Niblett V. Herring' (4 Jones (N. C), 
 
 262), 209. 
 Nichols ». Patten (18 Me. 231), 104. 
 Nichol «. Crittenden (53 Gi. 497), 
 327. 
 V. Godts (10 Ex. 91), 197. 
 0. Steger (6 Lea, 393), 17. 
 V. Thomas (53 Ind. 42), 21. 
 NichoU V. Mumford (2 Johns. Ch. 
 629), 175. 
 I V. Stewaift (36 Ark. 612) , 230. 
 43 673 
 
TABLE OP CASES CITED. 
 
 References are to Sections. 
 
 Nicholls V. Noidheimer (22 Up. Can. 
 C. P. 48), 194. 
 V. Lee (10 Mich. 526), 245. 
 Nichols V. Godts (10 Exch. 1), 215. 
 V. Hampton (46 Ga. 253), 222 
 239. 
 Nichols V. Jones (3 A. K. Marsh. 
 385), 277. 
 V. Moore (100 Mass. 277), 333. 
 V. Morse (100 Morse, 523), 112, 
 
 113. 
 V. Mudgett (32 Vt. 546), 298. 
 V. Patten (18 Me. 231), 96. 
 V. Pinner (18 N. Y. 295; 23 N. Y. 
 
 265), 170, 171. 
 V. Plume (1 C. & P. 272), 67. 
 V. Reynolds (1 R. I. 30), 228. 
 V. Webster (1 Chandl. 203), 221, 
 248. 
 Nicholson V. Bower (1 E. & E. 172; 
 38 L. J. Q. B. 97), 66, 
 67. 
 ». Bradfleld Union (L. E. 1 Q. B. 
 620; 25 L.J. Q. B. 176), 
 101. 
 V. Bradfleld Union (L. R. 1 Q. B. 
 620; 35 L.J. Q. B. 176), 
 113. 
 V. Karpe (58 Miss. 34), 233. 
 V. Taylor (31 Pa. St. 128), 87, 
 
 205. 
 V. Taylor (31 Pa. St. 128), 205. 
 V. Temple (4 Pugs. &B. (n. b.) 
 
 248), 231, 238. 
 
 V. Wilborn (13 Ga. 467), 17. 
 
 Nickersonz?. Darrow (5 Allen, 419), 
 
 317. 
 Nicolopnlo V. His Creditors (37 La. 
 
 An. 472), 84. 
 Nightingale v. Ciiafee (11 R. I. 
 609), 144. 
 V. Withlngton (15 Mass. 272), 
 18. 
 Niver v. Best (10 Barb. 369), 174. 
 Nixon V. Brown (57 N. H. 34), 317. 
 674 
 
 Nixon V. N'xon (21 Ohio St. 114), 
 
 333. 
 Noakes v. Morey (30 Ind. 103), 71. 
 V. Nicholson (34 L. J. C. V. 
 273; 19C. B. (N. s.)290), 
 51. 
 Noble, V. Bosworth (19 Pick. 314), 
 59. 
 V. Smith (2 Johns, 66), 104. 
 Nobles V. Bates (7 Cow. 307) , 303. 
 Noel V. Horton (50 Iowa, 687), 158. 
 V. Murray (1 Duer, 388;, 13 N. 
 
 Y. 167), 144. • 
 0. Murray (3 Kem, 169), 144. 
 Nolan V. Cain (3 Allen, 263), 158. 
 Noonan v. Hartford Ins. Co. (21 
 
 Mo. 81), 212. 
 Noofsinger v. Ring (71 Mo. 149), 
 
 212. 
 Norman o. Phillips (14 M. & W. 
 276), 65. 
 u. Phillips (14 M. & W. 277), 
 67, 95, 122. 
 Norrington v. Wright (115 U. S. 
 188), 103, 197, 208, 209. 
 Norris v. Ayleete (2 Camp. 328), 
 147. 
 V. Blair (39 Ind. 90), 76, 286. 
 V. Spofford (127 Mass. 85), 45. 
 North V. Crowell (11 N. H. 251), 
 234. 
 V. Drayton (Harper Ch. 34), 
 
 242. 
 V. Forest (15 Conn. 400), 59. 
 ■d. Phillips (89 Pa. St. 250), 
 302. 
 North Whitehall Twp., In re (27 
 
 Pa. St. 156), 260. 
 Northampton Mills v. Ames (8 Met. 
 
 1), 246. 
 Northern Pac. R. R. Co. v. Kindred 
 
 (14 Fed. Rep. 77), 270. 
 Northey v. Field (2 Esp. 613), 129. 
 N. & N. W. R. R. Co. V. Jones (2 
 Cold. 584), 200. 
 
TABLE OF CASES CITED. 
 
 References are 
 
 Northup V. Cooper (23 Kan. 432), 
 260. 
 V. Cook (39 Mo. 208), 333. 
 V. Foote (14 Wead. 248), 308. 
 Northwestern Iron Co. v. Mead (21 
 
 Wis. 474), 34. 
 N. W. Mnt. Fire Ins. Co. e. Blank- 
 enship (94 Ind. 635), 24. 
 N. W. Mut. Ins. Co. v. Blankenship 
 
 (94 Ind. 535;, 21, 22. 
 Norton v. Doolittle (32 Conn. 411), 
 84o, 
 o. Gale (95 111.533), 46. 
 V. Gale (95 111.538), 76. 
 o. Woodruff (2 N. Y. 153), 6. 
 B.Young (3 Greenl. 30), 163. 
 Newell V. Pratt (5 Cash. Ill), 273, 
 
 317. 
 Noyes v. Bay (14 Vt. 384), 303. 
 V. Jenkins (55 Ga. 686), 302. 
 ». Spalding (27 Vt. 420), 302. 
 Nugent V. Jacobs (103 N. Y. 125), 
 
 174. 
 Nutter V. Wheeler (2 Low. C. C. 
 346), 203, 
 
 0. 
 
 Oakes v. Moore (24 Me. 214), 231. 
 u. Turquand (L. K. 2 App. Cas. 
 
 325), 327. 
 V. Turquand (L. R. 2 H. L. 
 325), 173. 
 Oakland Bank o. Applegarth (67 
 
 Cal. 86), 140. 
 Oakley v. Morton (11 N. Y. 25), 
 
 218. 
 Oakman v. Rogers (120 Mass. 214), 
 
 76. 
 Obe V. Carson (62 Mo. 209), 205. 
 Ober V. Carson ("62 Mo. 209), 87. 
 V. Carson (62 Mo. 213; 6 Mo. 
 App. 698; 9 Mo. App. 
 578), 88. 
 V. Smith (78 N. C. 313), 89. 
 
 to Sections. 
 
 Obermier v. Core (25 Ark. 662), 121. 
 O'Brien v. Chamberlain (50 Cal. 
 
 285), 84o. 
 V. Jones (47 N. Y. 67), 334. 
 .,. Norris (16 Md. 122), 125, 135, 
 
 136. 
 O'Catos V. Burns (3 Ex. D. 289 C. 
 
 A.), 276. 
 Ocean Tow Boat Co. v. Ship Ophe- 
 lia (11 La. Ann. 28), 145. 
 Ockington v. Kichey (41 N. H. 275), 
 
 206. 
 O'Danlel ». Crawford (4 Dev. 203), 
 
 174. 
 Odell V. Boston, etc., R. R. Co. (109 
 
 Mass. 60), 84, 87, 89, 95. 
 Odell V. Buck (21 Wend. 142), 21. 
 Odiorne v. Mexey (13 Mass. 178), 
 
 273. 
 O'Donnell v. Leeman (43 Me. 168), 
 
 76, 286. 
 V. Sweeney (5 All. 457), 293. 
 Offley V. Clay (2 M. & 6. 172), 283. 
 0£futt». Plagg (ION. H. 46), 239. 
 O'Gara v. Loury|(5 Mont. 427), 106. 
 Ogden V. Lathrop (65 N. Y. 158), 
 
 274. 
 Ogg V. Shuter (1 C. P. D. 47 C. A.) 
 
 85. 
 ». Shuter (L. R. 1 C. P. D. 47), 
 
 95. 
 V. Sluter (L. R. 10 C. P. 459), 
 
 83. 
 Ogle V. Atkinson (5 Taunt. 759), 
 
 133. 
 Ohio, etc., Co. •».Kerr (49 111. 468), 
 
 327, 329. 
 Olmstead i. Holtailing (1 Hill, 311, 
 
 317), 327. 
 O'Keefe v. Kellog (15 III. 347), 206. 
 Okell V. Smith (1 Stark, S. C), 
 
 197. 
 Okeil v. Smith (1 Stark, 107), 163, 
 
 213. 
 Olbers, The ( 3 Ben. 148), 322. 
 675 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Olcott V. Robinson (21 N. Y. 250), 
 260. 
 V. Tioga R. R. Co. (27 N. Y. 
 546), 260. 
 Old Colony R. R. Co. v. Sears (6 
 
 Gray, 25), 76. 
 
 Old Dominion, &c., Co. v Burchart 
 
 (31 Gratt. 664), 325, 327, 
 
 329. 
 
 Olds V. Cummings (31 111.188), 245. 
 
 Olesome ®. Merrill (20 Wis. 478), 
 
 324. 
 Ollbant V. Bayley (5 Q. B. 288), 190. 
 Oliphant v. Baker (5 Denio, 379), 
 
 82, 87. 
 Ollivant v. Bayley (5 Q.B. 288), 35. 
 OUiver v. Court (Dan. 301), 283. 
 V. Hondlet (13 Mass. 237), 18. 
 V. Piatt (3 How. 333), 270. 
 V. Moore (12 Heisk. 482), 89. 
 B. Town (28 Wis. 328), 232. 
 Olmstead v. Hotailing (1 Hill, 317), 
 168. 
 t). Niles (7N. H. 522), 59. 
 Olson V. Mayer (56 Wis. 551), 117. 
 Omaha Book Co. v. Sutherland (10 
 
 Neb. 334), 228. 
 O'Malley v. Hendrickson (29 N. J. 
 
 L. 371), 197. 
 Onedia Mfg. Co. v. Lawrence (4 
 
 Cow. 440), 1»8. 
 O'Neil V. Capelle (62 Mo. 209), 204. 
 ■B. Crane (67 Mo. 250), 76. 
 V. Mcllmoyle (34 Up. Can. Q. 
 B. 236), 87. 
 O'Neill V. Capelle (62 Mo. 202), 224, 
 228. 
 V. James (43 N. Y. 84), 103. 
 V. N. Y., etc., Co. (3 Nev. 141), 
 68. 
 Onendale v. Wetherell (9 B. & C. 
 
 386), 1'03. 
 Ontario Copper Co. v. Lightning- 
 rod Co. (29 Up. Can. C. 
 P. 491), 170, 171. 
 676 
 
 Oppenheim v. Russell (3 Bos. & P. 
 
 42), 137. 
 Orcutt V. Nelson (67 Mass. 536), 
 294. 
 V. Nelson (1 Gray, 537), 84. 
 Oriental Bank v. Harkins (3 Met. 
 
 340), 174. 
 Oriflamme, The (1 Saw. 176), 322. 
 Ormrod v. Huth (14 M. & W. 664), 
 
 166. 
 Ormsby v. Machlin (20 Ohio St. 
 
 295), 88. 
 Oro, etc., Co. v. Starr (Cal.) (8 Pac. 
 
 Rep. 242), 106. 
 Orr V. Tanner (12 R. I. 94), 304. 
 O'Rourk V. O'Rourk (43 Mich. 68), 
 308. 
 V. O'Rourk (43 Mich. 58), 290. 
 Osborn v. Gantz (fiO N. Y. 549), 
 180. 
 V. Nicholson (13 Wall. 654), 
 
 194. 
 V. Fuller (14 Conn. 629), 84o. 
 V. Gantz (60 N. Y. 540), )88. 
 V. Harney (7 Jur. 229), 284. 
 V. Morse (7 Johns. 161), 174. 
 Osgood V. Lewis (2 Harr. & G. 405), 
 182. 
 V. I^wis (2 Harr. & 6. 495), 
 
 189. 
 V. Lewis (2 Harr. & G. 618), 
 
 193. 
 V. Nichols (5 Gray, 420), 283. 
 V. Thompson (30 Conn. 37), 
 228. 
 Ohkaloosa v. Tallis (25 Iowa, 440), 
 
 281. 
 Osmond ».Fitzroy (3 P. Wms. 129), 
 
 21. 
 Oster V. Mickley (28 N. W. Rep. 
 
 (Minn.) 710), 269. 
 
 Osterhout v. Roberts (8 Cow. 43) 
 
 43. ' 
 
 Oswego Starch Factory c. Lendoum 
 
 (67 Iowa, 573), 170, 329. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Otis V. Lill (8 Barb. 102), 51, 231. 
 Ottis V. Aldersou (10 Smed. & M. 
 
 476), 182, 187. 
 Outon V. Bodes (3 A. K. Marsh. 
 
 432), 300. 
 Cutwater v. Dodge (6 Wend. 397), 
 65. 
 V. Dodge (7 Cow. 85), 87, 205. 
 Overfield v. Bullitt (1 Mo. 749), 
 
 277. 
 Overstreet v. Gallagher (42 Ark. 
 
 208), 332. 
 Overton v. Perkins (10 Yerg. 329), 
 264. 
 V. Phelan (2 Head, 445), 190. 
 Owen V. Long (112 Mass. 403), 18. 
 Owens V. Dickenson (1 Craig. & 
 Ph. 48), 30. 
 V. Dunbar (12 L. B. Jr. 304), 
 
 190. 
 V. Lewis (46 lud. 488), 59. 
 V. Porter (4 C. & P. 867), 
 
 292. 
 V. Weedman (82 III. 409), 93, 
 100. 
 Owis V. Kimball (3 N. H. 314), 19. 
 Owenson v. Morse (7 T. E. 50), 
 
 147. 
 Oxendale v. Wetherell (9 B. & C. 
 SSe), 34, 101. 
 V. Wetherell (9 Barn. & C. 
 386), 116. 
 Oxnard v. Blake (45 Me. 607), 237. 
 
 P. 
 
 Paciflc Bank v. Mitchell (9 Met. 
 
 297), 143. 
 Paciflc Guano Co. v. Mullen (66 
 
 Ala. 582), 163, 190. 
 Pac. Iron Works v. Long Island R. 
 
 E. Co. (62N. T.272),84, 
 
 113. 
 Paciflc Iron Works v. Newhall (34 
 
 Conn. 67), 187, 190. 
 
 Pa. R. E. Co. V. Titusville Plank 
 KoadCo. (71 Pa. St. 350), 
 335. 
 Packard o. Dunsmore (11 Cush. 
 282), 105. 
 V. Getman (6 Cow. 767), 95. 
 V. Kingman (11 Iowa, 219), 
 
 249. 
 !>. Low (16 Me. 48), 241. 
 V. Eichardbou (17 Mass. 122), 
 
 76. 
 V. Wood (4 Gray, 307) 84a, 
 104, 105. 
 Packer v. Hinckley Locomotive 
 Works (122 Mass. 484), 
 142. 
 Packet, The Ship (3 Mason, 255), 
 
 275. 
 Paddon o. Marsh (34 Iowa, 522), 
 
 213. 
 Paddock v. Strobridge (29 Vt. 471), 
 
 167. 
 Paddon v. Taylor (44 N. Y. 871), 
 170, 327, 229. 
 V. Bent (2 Met. 371), 160. 
 V. Bent (2 Met. 274), 162. 
 e. Carpenter (10 N. H. 77), 88. 
 V. Cowagee Eduljec (L. E. 1 
 
 C. C. 127), 186. 
 V. Foster (7 N. H. 392), 224. 
 V. Gardner (20 Mo. 507), 232. 
 V. Ordway (40 N. H. 253), 226, 
 
 284. 
 V. Parker (40 N. H. 47, 69), 
 
 160, 168. 
 V. Parker 43 N. H. 869) , 166. 
 Paice V. Walker (L. R. 5 Ex. 173), 
 
 78. 
 Paige ». O'Neal (2 Cal.488), 326. 
 
 V. Ott (5Denio,406), 84. 
 Paine ». Benton (32 Wis. 491), 234. 
 V. Duinell (53 Me. 52), 144. 
 V. Fulton (34 Wis. 83), 71. 
 V. Mason (7 Ohio St. 198), 240. 
 V. Voorhees (26 Wis. 526), 144. 
 677 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Palmers. Gurney (7 Wend. 248), 
 223. 
 V. Guthrie (76 Pa. St. 441),228- 
 V, Hand (13 Johns. 434), 93. 
 V. Hatch (46 Mo. 385), 183. 
 V. Hatch (46 Mo. 685), 269, 
 
 273. 
 V. Kelleher (111 Mass. 320), 
 
 306. 
 V. Phoenix Mut. Ins. Co. (34 
 
 N. Y. 63), 154. 
 
 V. Stephens (1 Denio, 478), 77. 
 
 Pam V. Vilraar (54 How. Pr. 235), 8. 
 
 Parish v. Gates (29 Ala. 254), 204, 
 
 224, 228. 
 
 V. Eeeve (63 Wis. 315), 268. 
 
 Parke v. Morris Axe Co. (4 Lans. 
 
 103), 197. 
 Parkham Sewing M. Co. v. Brock 
 (113 Mass. 194), 144. 
 V. Welch (19 Pick. 231), 174. 
 Parkinson v. Lee (2 East, 314), 
 
 187. 
 Parker v. Anderson (5 B. Mon. 
 445), 314. 
 V. Baxter (85 N. Y. 587), 325. 
 V. Byrenes (1 Low. 539), 120, 
 130. 
 Parker v. Byrnes (1 Low. C. C. 
 539), 170. 
 V. Cabnan (10 Allen, 82), 45. 
 V. David (45 Miss. 488), 255. 
 V. Davis (8 Jones (N. C), 460), 
 
 21. 
 V. Donaldson (2 Watts & S. 
 
 9), 273. 
 V. Fergus (43 111. 437), 278. 
 V. Gilliam (10 Yerg. 394), 277. 
 V. Hendrick (29 Vt. 388), 84a. 
 W.Jacobs (14 S. C. 112), 52, 231, 
 
 232. 
 V. Mclver (1 Des. Eq. 281), 
 
 130, 133. 
 V. Mlddlebrock (24 Conn. 307), 
 324. 
 678 
 
 Parker v. Morrison (46 N. H. 280), 
 226. 
 V. Muwell (60 N. H. 30), 106. 
 V. Palmer (4 B. & Aid. 387), 
 
 115, 163, 188. 
 V. Palmer (1. R. I. 359), 239. 
 V. Parthow (12 Rich. 679), 283. 
 V. Pettit (43 N. J. L. 512, 517), 
 
 333. 
 V. Pitts (73 Ind. 697), 290, 3C8. 
 V. Pitts (73 111. 597), 293. 
 ■u. Schenck (28 Barb. 38), 58. 
 V. Staniland (11 East, 362), 59. 
 V. Storts (15 Ohio St. 351), 
 
 284. 
 V. Vose(45Me. 54), 270. 
 V. Wallis (5 B. & B. 21), 67, 
 115. 
 Parks V. Alten (42 Mich. 482), 140. 
 V. Hall (2 Pick. 206)), 108, 120, 
 
 228, 246. 
 V. Hall (2 Pick. 211), 119. 
 V. Hall (2 Pick. 306, 212), 121. 
 V. Morris, etc., Co. (54 N. Y. 
 
 586), 180. 
 V. Smith (94 Pa. St. 46), 84a. 
 Parmlee v. Adolph (28 Ohio St. 10), 
 160. 
 V. Catherwood (36 Mo. 479), 
 325. 
 Parnam v. Riley (4 Cold. 9), 313. 
 Parshall v. Eggert (52 Barb. 367), 
 
 221, 222, 223. 
 Parr v. Brady (37 N. J. L. 201), 84o. 
 Parris v. Roberts (22 Ired. 268), 
 
 325. 
 Parrott v. Colby (71 N. Y. 597), 
 
 144. 
 Parsell v. Thayer (39 Mich. 468), 
 
 238. 
 Parson v. Dickinson (11 Pick. 352), 
 
 105. 
 Parson v. Webb (8 Greenl. 38), 310. 
 V. Louck (4 Roberts, 416; 48N. 
 Y. 17), 58. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Parsons Sav. Bank v. Sargent (20 
 
 Kan. 576), 233. 
 Parsons v. Sutton (66 N. Y. 92), 
 335, 336. 
 ■0. Thompson (1 H. Bl. 322), 
 
 298. 
 V. Webb (8 Greenl. 38), 317, 
 324. 
 Partee v. Bedford (61 Miss 84), 
 
 144. 
 Partridge v. Stoclser (36 Vt. 108), 
 29. 
 V. Swazey (46 Me. 414), 234, 
 
 235. 
 
 V. Wilsey (8 Iowa, 459), 58. 
 
 H. White (59 Me. 564), 233. 
 
 V. Wooding (44 Conn. 277), 84. 
 
 Pashu. Weston (52 Iowa, 675), 325. 
 
 Pasleyj). Freeman (3 T. E. 51), 162, 
 
 193. 
 Passaic Mfg. Co. v. Hoffman (3 
 
 Daly, 495), 58. 
 Passenger v. Thorburn (34 N. Y. 
 
 634), 336. 
 Patehin 'j. Pierce (12 Wend, 61 \ 1 
 Hill, 473), 221. 
 V. Pierce (12 Wend. 61), 246, 
 
 247, 248. 
 V. Pierce (12 Wend. 62), 241. 
 Pate V. Wright (30 Ind. 476), 308. 
 Patee v. Pelton (48 Vt. 182), 185. 
 Paton V. Sogers (1 Ves. & Beam. 
 
 367), 98. 
 Patrick v. Meserve (18 N. H. 300), 
 243. 
 u. Putnam (27 Vt. 759), 209. 
 Patten v. Moore (32 N. H. 382), 
 240. 
 V. Smith (6 Conn. 196), 84a. 
 V. Stewart (26 Ind. 395), 266. 
 Patten's Appeal (45 Pa. St. 161), 
 
 125. 
 Patterson v. Coulton (33 Ind. 240), 
 134. 
 V. Gillies (64 Barb. 563), 239. 
 
 Patterson v. Patterson (59 N. Y. 
 574), 277. 
 V. Preston (31 Ind. 190), 285. 
 V. Robinson (1 Casey, 81), 30. 
 Patterson's Estate (1 Watts & S. 
 
 292), 277. 
 
 Patterson v. Hall (9 Cow. 747), 152. 
 
 V. Hull (9 Cow. 747), 152. 
 
 V. Jenlcs (33 Ind. 87), 167. 
 
 ». Jocelyn (43 Miss. 373), 169. 
 
 Patterson's Appeal (61 Pa, St. 294), 
 
 59. 
 Patton V. McCane (16 B. Mon. 
 655), 206, 325. 
 V. Thompson (2 Jones Eq. 2^5), 
 270. 
 Paul V. Crooker (8 N. H. 288'), 84a. 
 V. Hadley (23 Barb. 521), 171. 
 V. Eeed (52 N. H. 136), 86, 93. 
 Paulk V. Cooke (39 Conn 666), 174. 
 Paulson V, Osborn (27 N. W. Eep. 
 
 (Minn.) 203), 197. 
 Paulus V. Nunn (48 Mich. (1882), 
 
 191), 240. 
 Paxton V. Meyer (48 Miss. 446), 
 
 3.33. 
 Payne v. Cave (3 T. R. 148), 38, 40, 
 285. 
 V. Dreme (4 East, 623), 255. 
 V. Fern (5 Q. B. D. 620), 243. 
 V. Leconfleld (51 L. J. Q. B. 
 
 642), 283. 
 ». Eodden (4 Bibb, 304), 185, 
 
 186. 
 V. Shedbolt (1 Camp. 427), 122. 
 Pea V. Pea (35 Ind. 387), 59. 
 Peabody v. Speyers (66 N. Y. 230), 
 59. 
 V. Soyars (56 N. Y. 230), 74, 
 76. 
 Peacock v. Purcell, 14 C. B. (n. s.), 
 
 728), 148. 
 Pearce v. Blackwell (12 Ired. 49) , 
 167. 
 V. Brooks (L.R. 1 Ex. 212), 294. 
 679 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Pearce v. Foote (113 111. 228), 272. 
 
 V. Hall (12 Bush, 209), 234. 
 Pearce «. Watts (20 Eq. 492), 33. 
 Pearle v. McDowell (3 J. J. Marsh, 
 
 668), 21, 23. 
 Pearson v. Carter (94 Pa. St. 275), 
 
 84a. 
 Pearson, Ex parte (3 Ch. 443), 89. 
 Person v. Mason (120 Mass. 23), 
 333. 
 V. Seay (35 Ala. 612), 204, 224. 
 Pease v. Copp (67 Barb. 132), 114, 
 115. 
 V. Gloahec (1 Privy C. App. 
 
 219), 323. 
 V. Gloahee (L. K. 1 P. C. 220; 
 s. c. 3 Moore. P. C. (n. 
 8.) 556), 327, 329. 
 D. McClelland (2 Bond, 42), 
 
 159. 
 V. Norton (6 Greenl. 229), 99. 
 V. Odenkirchen (42 Conn. 415), 
 
 241. 
 V. Saloin (38 Vt. 432), 187, 190. 
 Pecko. Gurney (L. R. 6 H. L. 403), 
 159. 
 V. Harriott (6 Serg. & R. 146), 
 
 269. 
 V. Harriott (6 Serg. & R. 148), 
 
 272. 
 V. Land (2 Kelly 1), 8ia, 174. 
 V. List (23 W. Va. 338), 165. 
 V. Requie (18 Gray, 407), 298. 
 ». Vanderaark (99 N. Y. 29), 
 75. 
 Pecker v. Kennison (28 N. H. 290), 
 
 292. 
 Peckbam Iron Co. v. Harper (41 
 
 Ohio St. 100), 270. 
 Peduck V. Porter (5 Allen, 324) , 166. 
 Peek V. North Staffordshire R. R. 
 Co. (10 H. L. C. 472), 75. 
 Feel V. Shepherd (58 Ga. 365), 142. 
 Peer v. Humphreys (2 Add. & E. 
 161), 310. 
 680 
 
 Pegram v. Carson (10 Bosw. 605), 
 
 317. 
 Peirce, Corf. (L. R. 9 Q. B. 210), 75, 
 
 76. 
 Pelhara v. Aldrlch (8 Gray, 515), 
 
 174. 
 Pellecat v. Angell (2 Cromp. M. & 
 
 R. 311), 307. 
 Peltee v. Dustin (58 N. H. 309), 
 
 238. 
 Peltier v. Collins (3 Wend. 4.59), 
 
 76. 
 Pembertont). Vaughn (12 Q.B. 87), 
 
 303. 
 Pembroke Iron Co. v. Parsons (5 
 
 Gray, 689), 102, 214. 
 Pence v. Langdon (99 U. S. 678), 
 
 163. 
 Pendarrisj). Gray (41 Tex. 326), 
 
 160. 
 Pender v. Fobes (2 Dev. & Bat. 
 
 250),. 196. 
 Pendleton «. Fay (2 Paige Ch. 202), 
 
 245, 277. 
 Penn, etc., Sleam Nav. Co. v. Dan- 
 
 dridge (8 6. & J. 248) , 
 
 268. 
 Pennell v. Davidson (18 C. B.355), 
 94a. 
 V. McAfferty (84 111. 364), 115. 
 Pennimanv. Hart-horn (13 Mass. 
 
 87), 76, 77. 
 Pennington v. Hanby (4 Muni. 140), 
 
 224. 
 u. Jones (57 Iowa, 37), 63, 231, 
 
 233. 
 Pennock v. Coe (23 How. 117), 53, 
 
 232. 
 V. Stygler (54 Vt. 226), 216. 
 Pennock's Appeal (14 Pa. St. 446), 
 
 165. 
 Pennypacker v Jones (106 Pa. St. 
 
 237), 336. 
 V. Umberger (22 Pa. St, 492), 
 
 139. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Feotz V. Simeon (2 Beasley, 332), 
 
 80. 
 People V. Baker (20 Wend. 602), 
 145. 
 V. Bristol (36 Mich. 28), 232, 
 
 239, 241. 
 V. Hatch (33111. 137), 99. 
 0. Jacobs (35 Mich. 36), 158. 
 V. Lord (6 Hun, 390), 168. 
 V. Walher (17 N. Y. 502), 99. 
 V. Wiltshire (9 Bradw. 374), 
 
 250. 
 V. White (6 Cal. 75), 286. 
 People's Bank v. Bogert (81 N, Y. 
 101), 159. 
 V. Grldley (91 111. 457), 319. 
 V. Kurtz (99 Pa. St. 344), 186. 
 Pequeno v. Taylor (38 Barb. 375), 
 
 133. 
 Percham v. Eiley (4 Cold. 9), 313. 
 Perkins v. Bailey (99 Mass. 61), 
 163. 
 V. Cummings (2 Gray, 268), 
 
 292. 
 V. Dibble (10 Ohio, 433), 227. 
 V. Douglas (20 Me. 317), 5, 
 
 326. 
 
 V. Drye (3 Dana, 170), 224. 
 
 Perkins v. Eaton (3 N. H. 152), 301. 
 
 V. Echert (55 Cal. 400), 85, 95. 
 
 V. State (50 Ala. 154), 271. 
 
 Perkinson o. Whelaa (116 Mass. 
 
 542), 186. 
 Perley v. Balch (23 Pick. 286), 163. 
 Perrin ». Eeed (35 Vt. 2), 106. 
 Perrine v. Cobley (42 N. J. L. 623), 
 
 269. 
 Perrlns v. Little (1 Green, 248), 13. 
 Persch v. Quiggle (57 Pa. St. 247), 
 
 270. 
 Person D.Wright (35 Ark. 169), 
 
 233. 
 Pertes v. Fleming (6 M. & W. 46), 
 
 17. 
 Peru V. Turner (10 Me. 186), 38. 
 
 Perry v. Craig (3 Mo. 616), 247. 
 V. Poster (3 Harr. 293), 84a. 
 V. Johnston (69 Ala. 648), 159. 
 V. Mt. Hope Iron Co. (15 R. I. 
 
 66), 39. 
 V. Pettingill (33 N. H. 433), 
 231. 
 Perry v. Smith (22 Vt. 301), 150. 
 V. Vezine (63 Iowa, 26), 175. 
 Pessine v. Cooley (39 N. J. L. 449), 
 
 196. 
 Fetch V. Tutin (15 M. & W. 110; 
 15 L. J. Exch. 280), 231. 
 Peters v. Anderson (5 Taunt. 696), 
 152. 
 V. Ballistier (3 Pick. 495), 105. 
 V. Beverly (10 Pet. 532), 144. 
 V. Fleming (6 M. & W. 42), 17. 
 V. Hilles (48 Md. 506), 170. 
 Peterson v. Chicago, &c., E. R. Co. 
 (38 Minn. 511), 163. 
 V. Clark (15 Johns. 205), 224. 
 Petillion V. Hippie (90 111. 420), 
 
 301. 
 Petls V. Kellogg (7 Cush. 456), 
 
 233. 
 Petrie v. Clark (11 Serg. v. R. 377), 
 
 277. 
 Pettibone v. Perkins (6 Wis. 616), 
 
 250. 
 Pettigrew v. Chellis (4 N. H. 95), 
 
 160. 
 Pettingill v. Blkins (50 Vt. 431), 
 
 84a, 104. 
 Pettitt V. Mitchell (4 M. &, G. 819), 
 
 116. 
 Pew V. Lawrence (27 Up. Can. C. 
 
 P. 402), 88. 
 Pfeifer v. Dargan (14 S. C. 44), 175. 
 Pflstner v. Bird (43 Mich. 14), 82, 
 
 87. 
 Phelan v. Crosby (2 Gill. 462), 168. 
 Phelps ». Cutler (4 Gray, 137), 
 106. 
 V. Hubbard (61 Vt. 389), 84. 
 681 
 
TABLE OF CASES CITED. 
 
 Phelps V. Hubbard (51 Vt. 
 207, 334. 
 V. Hubbard (51 Vt. 689), 93. 
 V. Magee (18 111. 158), 333. 
 V. McGee (18 111. 155), 335. 
 V. Murray (2 Tenn. Ch.' 746), 
 
 53, 232. 
 V. Stillings (60 N. H. 605), 76. 
 Philadelphia, &c., K. R. Co. ». Leh- 
 man (56 Md. 209, 226), 
 308. 
 V. Wiseman (88 Pa. St. 265), 
 
 89. 
 V. Woepper (64 Pa. St. 366), 53. 
 Phllbrook v. Eaton (134 Mass. 398), 
 
 105. 
 Phillbrook v. Eaton (134 Mass. 400), 
 
 84. 
 Phillip V. Hunter (22 Mo. 485), 243. 
 Phillips V. Bank of Lewiston (18 
 Pa. St. 394), 245. 
 V. Behn (19 Ga. 298), 283. 
 V. BistoUi (2 B. & C. 511), 35, 
 
 66, 69. 
 I). BuUard (58. Ga. 256), 145. 
 V. Dugan (21 Ohio St. 466), 143. 
 ».Foxall (L. B. 7 Q. B. 679), 
 
 159. 
 V. Phillips 0. Ives (1 Eawle, 
 
 36), 301. 
 V. Moir (69111. 155), 273. 
 V. Moses (65 Me. 70), 152. 
 V. Ocmulgee Mills (55 Ga. 633), 
 
 51, 67, 115, 302. 
 V. Ocmulgee Mills (55 Ga. 634), 
 
 88. 
 V. Keitz (16 Kan. 396), 84o. 
 V. Tylor (49 N. Y. S. C. 318), 
 
 98. 
 ». Winslow (18 B. Mon. 431), 
 53. 
 Philport V. Sandwich Manfg. Co. 
 
 (18 Neb. 54), 19. 
 Phillpots V. Evans (5 M. & W. 
 , 475), 383. 
 682 
 
 References are to Sections. 
 
 Phllpott V. Jones (2 A & E. 41), 163. 
 Phippen v. Hyland (19 Up. Can. C. 
 
 P. 416), 79. 
 Phippen v. Siickney (3 Met. 387), 
 165, 169. 
 V. Stickpey (19 Up. Can. C. P. 
 416), 93. 
 Phipps V. Bnckman (30 Pa. St. 402), 
 162. 
 V. McFarlane (3 Minn. 109), 
 58. 
 Phoenix Ins. Co. v. Allen (11 Mich. 
 
 501), 147, 148. 
 Phrase v. Barbour (49 111. 370), 
 
 250. 
 Phyfe V. Blley (16 Wend. 248), 245. 
 Pickard v. Low (16 Me. 48), 241. 
 V. Marriage (L. E. 1 Ex. D. 
 
 364), 288. 
 I. McCormick (11 Mich. 69), 
 12. 
 Pickening v. Dawson (4 Taunt. 
 
 779), 167. 
 Pickens v. Eskridge (42 Miss. 114), 
 
 297. 
 Pickering v. Bardwell (21 Wis. 
 562), 334. 
 J). Burk (18 East, 38), 312. 
 V. Case (79 111. 329), 302. 
 V. Cease (79 111. 338), 302. 
 Pickett V. Bullock (62 N. H. 364), 
 120. 
 V. Merchants' Bank (32 Ark. 
 346), 152. 
 Pickett V. Memphis Bank (32 Ark. 
 346), 152. 
 V. Sutter (5 Cal. 412), 25. 
 Pickstock V. Lyster (3 Maule & L. 
 
 371), 175. 
 Pierce v. Chipman (8 Vt. 337), 106. 
 V. Uooly (56 Mich. 552), 213. 
 V. Drake (16 Johns. 475), 146. 
 V. Emery (32 N. H. 484, 505), 
 
 230, 231. 
 V. Faunce (47 Me. 507), 245. 
 
TABLE OF CASES CITED. 
 
 References ar 
 
 Pierce B.George (108 Mass. 78), 230. 
 V. Hasbrouoh (49 111. 23), 241. 
 ». Knight (31 Vt. 701), 152. 
 V. Milwaukee E. E. Co. (24 
 
 Wis. 551), 53. 
 V. Moore (1 Tex. 4.pp. (civ. 
 
 cas.) 911), 84. 
 V. Parker (4 Met. 80), 234. 
 V. Eobinson (13 Cal. llfi). 228. 
 V. Shenck (3 Hill, 28), 6. 
 V, Stephens (30 Me. 184), 241. 
 V. Thomas (4E. D. Smith, 364), 
 
 272. 
 V. Vandyke (6 Hill, 613), 324. 
 V. Wilson (34 Ala. 596), 163. 
 Pierrepoint v. Barnard (6 N. Y. 
 
 279), 59. 
 Piersonij.Hoog (47 Barb. 243), 207. 
 
 V. Hoag (47 Barb. 244), 93. 
 Pigot V. Cubley (15 C. B. (n. s.) 
 
 701), 274, 316. 
 Pike V. Balch (38 Me. 202), 169. 
 V. Balch (38 Me. 302), 59, 285, 
 
 286. 
 V. Collins (33 Me. 38), 234. 
 V. Colvin (67 111.227), 221, 233, 
 
 241, 248. 
 v. Fay (101 Mass. 136), 196. 
 V. King (16 Iowa, 49), 293. 
 V. Vaughn (39 Wis. 499), 87. 
 V. Wieting (49 Barb. 314), 170. 
 Pilgreen v. State (71 Ala. 368), 95. 
 Pilkinton v. Corns, of Claims (2 
 Knapp, 17), 143. 
 V. Green (2 B. & P. 151), 301. 
 Pinckham o. Crocker (77 Me. 563), 
 
 273. 
 PindellH. Grooms (18 B. Mon. 501), 
 
 230. 
 Pindall v. Northwestern Bank (7 
 
 Leigh. 617), 149. 
 Pinkham v. Crocker (77 Me. 663), 
 317. 
 V. Mattox (53 N. H. 606), 67, 
 115. 
 
 e to Sections. 
 
 Pinkerton v. Manchester, etc., R. 
 
 E. Co. (42 N. Y. 424), 
 
 318. 
 
 Pinney v. Andrews (41 Vt. 631), 
 
 195. 
 
 ». First Div.,&c., E. E. Co. (19 
 
 Minn. 211), 100. 
 V. Gleason (5 Wend. 393), 150. 
 V. St. Paul E. E. Co. (19 Minn. 
 251), 113. 
 Piper V. Elwood (4 Denio, 195), 
 
 329. 
 Pirdicaris v. Trenton City Bridge 
 
 (39 N. J. L. 368). 
 Pitsinowski v. Beardsley (37 Iowa, 
 
 9), 269. 
 Pitt V. Yaeden (4 Burr. 2060), 283. 
 
 V. Smith (3 Camp. 33), 25. 
 
 Pitts V. Cable (44 111. 103), 224. 
 
 V. Hall (9N. H. 441), 168. 
 
 V. Owen (9 Wis. 152), 217. 
 
 Pitts Son's Mfg. Co. v. Boot (7 
 
 Bradw. 24), 213. 
 Pittsburg, &c., B. E. Co. v. Heck 
 
 (50 Ind. 303), 333. 
 Pixler V. Nichols (8 Iowa, 106), 
 
 209. 
 Pixley V. Boynton (79 111. 361), 
 
 302. 
 Plaisted v. Holmes (58. N. H. 293), 
 84a. 
 V. Palmer (66 Me. 576), 308. 
 Plant Seed Co. v. Hall (14 Kan. 
 
 553), 34. 
 Planters Bank v. Stockman (1 
 
 Freem. Ch. 502), 152. 
 Plato V. Eoe (14 Wis. 463), 227. 
 Piatt V. McFauU (4 Up. Can. C. P. 
 293), 93. 
 V. Preston (3 Fed. Eep. 394), 
 
 240. 
 ■V. Stewart (13 Blatchf. 481), 
 222, 240, 496. 
 Playford v Mercer (22 L. T. (N. s.) 
 41), 104, 113. 
 
 683 
 
TABLE OF CASES CITED. 
 
 References ar 
 
 Fleasants v. Pendleton (6 Band. 
 
 473), 82, 88, 105. 
 Plume V. Small (5 N. J. Bqr. 460), 
 
 284. 
 Plummer v, Brsklne (58 Me. 59), 
 152. 
 V. Newdigate (2 Duval, 1), 
 186. 
 Poindexter v. McCannon (1 Dev. 
 
 377), 224. 
 Pointer v. Smith (7 Heisk. 137), 
 
 272. 
 Poland c.Brownell (131 Mass. 138), 
 158. 
 V. Miller (95 Ind. 387), 190. 
 Polhemus v. Heiman (45 Cal. 573), 
 180. 
 V. Trainer (30 Cal. 686), 227, 
 245. 
 Polk V. Foster (7 Baxt. 98), 222. 
 V. Foster (7 Barb. 98), 232. 
 V. Robinson (7 Ired. Ex. 236), 
 277. 
 Pollard V. Vinton (105 U. S. (1882) 
 
 7), 134,323. 
 Pollen V. Le Koy (30 N. Y. 649), 
 
 333, 334. 
 Pollock V. Fisher (1 Allen (n. b.), 
 
 615), 88. 
 Pomeroy». Bailey (43 N. H. 118), 
 174. 
 V. Rice (16 Pick. 22), 146. 
 V. Winship (12 Mass. 613), 260. 
 Pond V. Williams (7 Gray, 630), 
 
 162. 
 Pool V. Stafford (7 Cow. 179), 18. 
 Poole V. Houston & Texas C. E. Co. 
 (168 Tex. 134), 131. 
 V. Bice (9 W. Va. 73), 144. 
 Poor V. Woodburn (23 Vt. 235), 
 329. 
 V. Woodburn (25 Vt. 234), 
 163. 
 PopeB.AlUs (115 U. S. 363), 188, 
 197. 
 684 
 
 e to Sections. 
 Pope t). Burrage (15 Mass. 282), 
 
 284. 
 V. Chafee (14 Rich. Eq. 69), 
 
 286. 
 V. Cheney (68 Iowa, 662), 106. 
 V. Garland (4 Y. & C. 403), 284. 
 V. Linn (50 Me. 83), 290, 293, 
 
 308. 
 V. Nickerson (3 Story, 466), 
 
 276. 
 V. Pope (40 Miss. 516), 329. 
 V. Porter (102 N. Y. 366), 208, 
 
 209. 
 Poper V. Filley (3 McCrary, 190), 
 
 100. 
 Popley V. Ashlin (6 Mod. 147; Holt, 
 
 121), 146. 
 Poree v. Bonneval (5 La. Ann. 
 
 386. 
 Port Carbon Iron Co. v. Groves 
 
 (68 Pa. St. 149), 190. 
 Port V. Williams (6 Ind. 219), 167. 
 Porter v. Barrow (3 La. An. 140), 
 
 335. 
 V. Bright (.32 Pa. St. 441), 185. 
 V. Dement (35 HI. 478), 239, 
 
 240. 
 V. Havens (37 Barb. 343), 296. 
 ». Jones (52 Mo. 399), 298. 
 V. Nelson (4 N. H. 130), 228. 
 V. Parmley (52 N. Y. 185, 188), 
 
 238, 246. 
 V. Parmey (43 How. Pr. 445 ; 
 
 34 N. Y. S. C. 398), 221. 
 V. Parmley (34 N. Y. Sup. Ct. 
 
 398), 243. 
 V. Pettingill (12 N. H. 299), 85, 
 
 325, 
 V. Ponks (49 N. Y. 464), 329. 
 V. Pool (62 Ga. 238), 181. 
 V. Talcott (1 Cow, 869), 12. 
 V. Talcott (1 Cow. 381), 144. 
 V. Williams (6 Seld. 142), 176. 
 V. Woodruff (36 N. J. Eq. 174), 
 
 270. 
 
TABLE or CASES CITED. 
 
 Keferences ar 
 
 Porterfleld v. Butler (47 Miss. 165), 
 
 27. 
 Portland Bank v. Stacey (4 Mass. 
 6C1), 105. 
 V. O'Neill (1 Oreg. 218), 271. 
 Post V. Jones (19 How. 150), 275. 
 Posten u. Posten (4 Whart. 42), 
 
 174. 
 
 Potomac, etc., Co. o. Hanlan, etc, 
 
 Co., 4 AtL Kep. (Md.) 
 
 903), 193. 
 
 Pott V. Turner (6 Bing. 702), 271. 
 
 Pottenger v. Stewart (3 Harr. & J. 
 
 347), 18. 
 Potter V. Boston Locomotive Works 
 (12 Gray, 154), 227. 
 ■it. Coward (Muigs, 22), 84. 
 u. Dnffleld (18 Eq. 4), 76. 
 u. Ilollanct (4Blatchf. 210), 13. 
 V. Hopkins (25 Barb. 416), 106. 
 V. Paige (54 Pa. Sb. 465). 175. 
 V. Saunders (6 Hare, 1), 40. 
 V. Smith (4 Conu. 455), 84a. 
 V. Thompson (10 R. D. 1), 274. 
 V. Washburn (13 Vt. 558), 104. 
 Pottlnger v. Hlcksher (2 Grant 
 
 (Ont.), 309), 131, 132. 
 Potts V. Newell (22 Minn. 561), 233. 
 V. New York, &c., R. R. Co. 
 
 (131 Mass. 455), 137. 
 V. Plalsted (30 Mich. 149), 140. 
 V. Whitehead (20 New J. Eq. 
 
 65), 38. 
 V. Whitehead (23 N. J. Eq. 514), 
 34. 
 Poulton V. Lattimore (9 B. & C. 
 
 239), 163. 
 Powder v. Rhea (32 Ark. 435), 
 
 230. 
 Powell V. Bradlee (9 Gill & J. 220), 
 
 170, 171, 327. 
 Powell Ex parte (1 Ch. D. 504 C. 
 A.), 87. 
 V. Henry (27 Ala. 612), 269. 
 V. Hoyland (6 Ex. 67), 327. 
 
 'e to Sections. 
 
 Powell «. Jassop (18C. &B. 336; 26 
 L. J. C. P. 199), 69. 
 V. Murray (2Edw. Ch. 636), 30. 
 V. Sadler (Parley P. & A. 80), 
 282. 
 Power V. Barham (4 Ad. & E. 473), 
 189. 
 ... Cook (4Ir. C. L. 247), 11. 
 Powers V. Freeman (2 Lansing, 
 1271), 233. 
 V. Freeman (2 Lans. 127), 239. 
 0. Osborne (1 Strange, 606), 56. 
 Prairie Farm Co. v. Taylor (69 111. 
 
 440), 213. 
 Pratt V. Tilt (28 N. J. Eq. 480), 319. 
 V. Chase (40 Me. 269), 70. 
 u. Collins (20 Hun, 126), 42. 
 V. Harlow (16 Gray, 37'J), 240. 
 V. Langdon (97 Mass. 97), 290. 
 V. Law (9 Cranch, 456), 209. 
 V. Maynard (116 Mass. 388) 84, 
 
 104, 243. 
 V. Myers (56 111. 24), 174. 
 V. Oliver (1 McLean, 295), 169. 
 u. Parkraan (24 Pick. 42), 214. 
 V. Parkman (24 Pick. 46), 105. 
 V. Stiles (17 How. Pr. 21 1 ; «. c. 
 9 Abt. Pr. 150), 247. 
 Prattler v. Parker (24 Iowa, 26), 
 
 84a. 
 Pratt's Adm'r v. United States, 
 
 (22 Wall. 496), 196. 
 
 Pray w. Burbank (10 N. H. 377), 
 
 306. 
 
 V. Mitchell (60 Me. 430), 59. 
 
 Prebbe v. Conger (66 111. 370), 234. 
 
 Pregnall v. Miller (26 S. C. 385; 53 
 
 Am. Rep. 684), 84a. 
 Prentiss v. Nutter (25 Minn. 485), 
 231. 
 V. Kuss (16 Mo. 30), 163, 167. 
 Presby v. Parker (56 N. H. 409), 
 
 173. 
 Preschboker v. Feaman (32 III. 
 475), 227. 
 
 685 
 
TABLE OF CASES CITED. 
 
 Keferences are to Sections. 
 
 PrescottB. Locke (51 N. II. 94), 
 58, G4. 
 V. Ward (10 Allen, 203), 296. 
 V. Wright (4 Gray, 461), 158, 
 171. 
 President, etc., of Merchants' Bank 
 V. Spaulding (12 Barb. 
 302), 294. 
 Preston v. Finney (2 Watts & S. 
 53), 209. 
 V. Travelers Ins. Co. (58 N. H. 
 
 76), 163. 
 V. Whitney (23 Mich. 206), 210. 
 Prettlplace v. Sayler (4 Mason, 
 
 321), 84a. 
 Price V. Durin (56 Barb. 647), 78, 
 286. 
 V. Forman (27 Vt. 268), 20. 
 V. Green (16 M. W. 346), 303. 
 V. Hewett (8 Exch. 146), 168. 
 V. Jones (3 Head, 84), 206, 326. 
 V. Lee (1 B. & C. 156), 61. 
 V. McCallister (3 Grant Cas. 
 
 Pa. 248), 9, 203. 
 V. Nesbit (1 Hill (S. G.) Ch. 
 
 445), 277. 
 V. Perrie (2 Treem. 258), 221. 
 V. Price (16 M. & W. 232), 144, 
 
 147. 
 V. Sanders (60 Ind. 310), 17. 
 V. Summers (2 South. 578), 296. 
 V. Wisconsin Co. (43 Wis. 267), 
 323. 
 Prickett v. Read (31 Ark. 131), 105. 
 Prime v. Cobb (63 Me. 200), 310. 
 Prince v. Boston, &c., R. R. Co. 
 
 (101 Mass. 547), 89. 
 Prindle v. Beveridge (7 Lans 225), 
 
 277. 
 Pringle v. Corporation of Napanee 
 (43 Up. Can. Q. B. 285), 
 294. 
 Pringle t). Phame (10 Rich. 74), 84a. 
 Prior u. White (12 111. 261), 241, 
 234. 
 686 
 
 Pritchett u Jones (4 Rawle, 260) 
 
 87, 206. 
 Proctor V. Jones (2 C. & P. 632), 
 
 67, 104, 122. 
 V. Sears (4 Allen, 95), 19. 
 V. Spratley (78 Va. 264), 188. 
 Proprietors Eng, & For. Cr. Co. v. 
 
 Arduin (L. R. 5 H. L. 
 
 64), 33, 34. 
 Protection lus. Co. v. McPherson 
 
 (6 Ind. 417), 212. 
 Proudfoot V. Wightman (78 III. 
 
 553), 269. 
 Front V. Root (116 Mass. 413), 245. 
 Provost V. Gratz (6 Wheat. 481), 
 
 270. 
 V. Wilcox (17 Ohio, 359), 244. 
 Puckett V. Reed (31 Ark. 131), 84. 
 Pudean v. Burnett (1 C. B. (n. s.) 
 
 613), 35. 
 Puffer V. Reebe (36 Hun, 580), 325. 
 Pugh V. Chessedine (11 Ohio, 109), 
 
 286. 
 Pugsley V. Murray (4 E. D. Smith, 
 
 245), 272. 
 Pulcifer v. Page (32 Me. 404), 231. 
 Pulling V. People (8 Barb. 385), 
 
 99. 
 Pullman j. Byrd (2 Strobh. Eq. 
 
 134), 277. 
 Pungle V. Dunn (37 Wis. 449), 
 
 239. 
 Purcell V. Mather (35 Ala. 670), 
 
 231. 
 Purl V. Duval (6 Har. & J. 69), 
 
 258. 
 Purney v. Piercey (40 Md. 212), 59. 
 Putnam v. Cushing (10 Gray, 34), 
 
 231. 
 ^. Dutch (8 Mass. 287), 105. 
 V. French (53 Vt. 402), 142. 
 V. Lamphier (36 Cal. 151), 206, 
 
 326. 
 V. Lewis (8 Johns. 389), 146, 
 
 147. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Putnam v. Osgood (32 N. H. 148), 
 84a. 
 
 0. Reynolds (44 Mich. 113), 240. 
 Putnan v. Dutch (8 Mass. 289), 104. 
 
 V. Tollotson (13 Met. 517), 89. 
 Putney v. Day (6 N. H. 430), 59. 
 Pyle V. "Warren (2 Neb. 241), 240. 
 
 Q. 
 
 Quander v. George (23 Pick. 400), 
 
 211. 
 Queen v. Saddle's Co. (10 H. L. P. 
 
 420), 163. 
 Quick V. Wheeler (78 N. Y. 300), 
 
 333. ** 
 
 Qulgley V. Duffey (52 Iowa, 610), 
 
 292. 
 V. Thompson (o3Ind, 317), 304. 
 Quin V. Stout (21 Mo. 160), 5. 
 Quimby v. Carr (7 Allen, 417), 95. 
 Qulncy v. Tilton (5 Me. 277), 108. 
 Quinn v. Davis (78 Pa. St. 15), 310, 
 
 311,317. 
 V. Schmidt (91 111. 84), 234, 
 
 241. 
 ■o. Stout (31 Mo. App. 160), 213. 
 Quintard v. Bacon (99 Mass. 185), 
 
 64, 105. 
 Quiriagure ». Dennis (24 Cal. 154), 
 
 231. 
 Quirk V. Bodman (5 Duer, 285), 
 
 224. 
 Quiznard v. Aldrich (10 Rich. Eq. 
 
 253), 84a. 
 
 B. 
 
 Race V. Weston (86 111. 91), 158. 
 Radfiffe v. Dallinger (141 Mass. 
 
 1), 168. 
 Eaffee v. United States (16 Ct. of 
 
 CI. 291), 113, 114. 
 Kafferty v. Mallory (3 Biss. 362), 
 
 277. 
 
 Rafferty v. McKenna (Pa. St.) I 
 
 Atl. Bep. 646),106. 
 Baffler v. Wichelhaus (2 H. & C. 
 
 90C), 35. 
 Ragland v. Justine (10 Ga. 65), 
 
 221 
 Bahilly v. Wilson (3 Dill. 420), 6, 
 
 7. 
 Rahter v. First Nat. Bank (92 Pa. 
 
 St. 393), 306. 
 Railey v. Gay (20 La. Ann. 158), 
 
 294. 
 R. R. Co. V. Barrett (36 Ohio St. 
 
 448), 95. 
 Railroad v. Howard (7 Wall. 465), 
 
 319. 
 Railroad o. Marsh (1 C. & J. 406) ^ 
 
 283, 
 Railroad Co. v. Johnson (15 Wall. 
 
 195), 140. 
 Raisin v. Clark (41 Md. 158), 272. 
 Ralph V. Chicago, etc., Co. (32 Wis. 
 
 177), 197. 
 Ransdale v. Horton (3 Pa. St. 330), 
 
 149. 
 Ramsay v. TuUy (12 Bradw. 463), 
 
 335. 
 Ransdell v. Segerson (2 Gill. 78) ^ 
 
 175. 
 V. Tewksbury (73 Me. 197), 
 
 241, 245. 
 Ramsey ». Blalock (34 Ga. 376), 
 
 277. 
 Ramsour v. Thomag (10 Ired, 165), 
 
 152. 
 Rand v. White Mountain (E. R. Co. 
 
 40 N. H. 79), 333. 
 Randall v. Hazeltou (12 Allen, 414), 
 
 162. 
 V. Kehlor (60 Me. 37), 183, 269,. 
 
 273. 
 V. Rhodes (1 Curtis C. C. 90), 
 
 196. 
 V. Sweet (1 Denio, 460), 17. 
 IK Tarnam (52 Vt. 539), 158. 
 687 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Randleaon, Ex parte (2 Deacon & 
 
 Ch. 534), 152. 
 Randolph Iror Co. v. Elliott (34 N. 
 
 J. L. 184), 35, 88. 
 Random B. Toby (11 How. 493), 
 
 186. 
 
 Randon v. Barton (4 Tex. 289), 335. 
 
 Ranger v. Hearne (37 Tex. 30), 335. 
 
 Rankin v. Grnpe (36 Hun, 481), 70. 
 
 V. Holloway (3 Smed. & M. 
 
 614), 84a. 
 V. Lodor (21 Ala. 380), 175. 
 V. Mathews (7 Ired. L. 286), 
 
 284. 
 Rankin v. Mitchell (1 Hennay (n. 
 
 B.) 465), 7. 
 Ranney v. Higby (5 Wis. 62), 85. 
 V. Higby (4 Wis. 154; 5 Wis. 
 
 62), 85, 89, 95. 
 V. Moody (6 Up. Can. Com. PI. 
 
 471), 84rt. 
 Ransom v. Schmela (13 Neb. (1882) 
 
 73), 240. 
 Rawson v. Horger (48 Iowa, 269), 
 
 158. 
 Ransom v. Trayser (10 Leigh, 592), 
 
 204. 
 Rappleye v. Adee (65 Barb. 589), 
 
 69. 
 Rapelye o. Mackie (6 Cow. 250), 
 
 87, 205. 
 Rappelyea v. Russell (1 Daly, 214), 
 
 277. 
 Ratcliffe v. Langston (18 Md. 383, 
 
 390), 329. ■ 
 Ratean v. Bernard (2 Blatchf . 244), 
 
 329. 
 Rathbun v. Ratbun (6 Barb. 98), 
 
 68. 
 Rattarg «. Cook (50 Ala. 352), 84. 
 Rawles v. Deshler (58 How. Pr. 66; 
 
 s. c. 4 Abb. App. Cas. 
 
 12), 317. 
 Rawley o. Brown (18 Hun, 466), 
 
 324. 
 688 
 
 Rawlins v. Hunt (9 N. C. 27:), 52. 
 Rawson v. Harger (48 Iowa, 209), 
 
 160. 
 Ray V. Light (34 Ark. 421), 35. 
 V. Thompson (12 Cush, 181), 5. 
 V. Thompson (12 Cush, 281), 
 
 213, 325. 
 Raymonds. Merchant (3 Com. 150), 
 
 147. 
 Raynes v. Crowder (14 Up. Can. C. 
 
 P. Ill), 168. 
 Eaynor v. Pearsall (3 Johns, ch. 
 
 578), 277. 
 Rea U.Alexander (Sired. 644), 84a. 
 Read ». Fairbanks (13 C. B. 692; 
 
 22 L. J. C. P. 206), 87. 
 u. Legard (6 Exch. 636), 23. 
 V. Stevens (Coxe, 264;, 258. 
 V. Livingstone (3 John Ch. 
 
 600), 174. 
 Reavear, Ex parte, &c., Co. (L. R. 
 
 11 Ch. D. 560) 129. 
 Eeavis v. Butcher (31 N. J. L. 
 
 224), 290. 
 Recton v. Hartt (8 Mo. App. 448), 
 
 262. 
 Redd V. Burns (58 Ga. 574), 62. 
 Redewell v. Gillen (12 Pac. Rep. 
 
 (IS. M. ) 872), 325. 
 Eedfleld v. Buck (35 Conn. 329), 
 
 174. 
 V. Legg (38 N. Y. 212), 12. 
 Redgrave v. Hurd (L. R. 20 Ch. D. 
 
 1), 161. 
 Redington v. Roberts (25 Vt. 694), 
 
 170, 171. 
 Redman v. Mtna, (Ins. Co. (49 
 
 Wis. 438), 200. 
 Redmond v. Smock (28 Ind. 365), 
 
 334. 
 Redpathu. Kolfage (16 Up. Can. Q. 
 
 B. 433), 145. 
 Reed v. Baggott (5 111. App. 257), 
 
 269. 
 V. Batchelder (1 Met. 159'> 19. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Keed v. Blades (5 Taunt. 212), 51. 
 V. Boardman (20 Pick. 441), 
 
 152. 
 V. BoBhears (4 Sneed. 118), 19. 
 V. Hastings (61 111. 266), 193. 
 V. Jewett (6 Me. 96), 228. 
 V. Lamar (1 Strobh. Eq. 27), 
 
 30. 
 V. Peterson (91 111. 297), 173. 
 V. Randall (29 N. Y. 358; 86 
 
 Am. Dec. 305), 101, 116, 
 
 197. 
 V. Eeed (70 Me. 504), 84a. 
 v. Keed (82 Pa. St. 420), 272. 
 V. Upton (10 Pick. 522), 86, 87. 
 V. Warner (5 Paige, 650), 270. 
 V. Wood (9 Vt. 286), 196. 
 Keese v. Beck (24 Ala. 651), 218. 
 V. Coates (65 Ala. 256), 225. 
 V. Coates (56 Ala. 439), 231. 
 Eeese Elver Mining Co. v. Smith 
 
 (L. E. 4 App. C. 64), 
 
 327. 
 Eeeve ». Whitmore (4 De G. & J. 
 
 &S. 1; 33 L.J. Ch. 63), 
 
 53. 
 Eeeves v. Butcher (31 N. J. L. 
 
 224), 293, 308. 
 V. Capper (5 Bing. (N. C.) 
 
 136), 122. 
 V. Harris (1 Bailey, 563), 325. 
 V. Pye (1 Crouch C. C. 219), 
 
 75. 
 V. Scully (Walk. (Mich.) 248), 
 
 245. 
 Eeeves 0. Sebern (16 Iowa, 234), 
 
 204. 
 V. Seeburn (16 Iowa, 237), 4. 
 V. Ward (2 Scott, 395), 277. 
 Eeflning Co. v. Miller (7 Phila. 97), 
 
 207. 
 Eeg V. Chauton (1 Q. B. 247), 99. 
 
 V. Lord (12 Q. B. 767), 8. 
 Eeichartv. Castators (5Binn. 109), 
 
 174. 
 
 Eeid V. Draper (6 H. & N. 813; 30 
 L. J. Ex. 268), 73. 
 V. Fairbanks (1 C. L. E. 787), 
 231. 
 Eelnecker v. Smith (2 Harr. & J. 
 
 421), 25. 
 Eeissner v. Oxley (80 Ind. 680, 
 
 585), 8. 
 Eemick v. Butterfleld (31 N. H. 70), 
 270. 
 V. Sanford (120 Mass. 809), 64, 
 66. 
 Eennell ». Kimball (5 Allen, 365), 
 
 46. 
 Eennock v. McCormick (120 Mass. 
 
 275), 4. 
 Rentch v. Long (27 Md. 188), 68. 
 Renter v. Sala (4 C. P. D. 239 C. 
 
 A.), 101. 
 Renter v. Sala (L. E. 4 C. P. D. 
 
 239), 116. 
 Requa v. Rea (2 Paige, 339), 283. 
 Reuss V. Picksley (L. E. 1 Ex. 332; 
 
 35L. J. Ex. 218),76. 
 Eew V. Barber (3 Cow. 272), 
 186. 
 V. Barber (3 Cow. 279), 144. 
 V. Lawrence (27 Up. Can. C. P. 
 402), 114. 
 Eex V. Marsh (Younge & J. 331), 
 
 166. 
 Eeybold v. Voorhees (30 Pa. St. 
 
 116), 210. 
 Reynolds iJ. Boston Maine E. Co. 
 (43 N. H. 589), 185. 
 V. Boston, etc., E. E. Co. (43 N.^ 
 
 H. 580), 136. 
 u. Boston, &Me. E. R. Co. (49 
 
 N. H. 580), 136. 
 V. Dechaums (24 Tex. 174), 28, 
 
 165. 
 V. Harris (14 Cal. 667), 314. 
 V. Hoxsie (6 R. I. 463), 265. 
 W.Nye (1 Free (Miss.), Ch. 
 462), 265. 
 
 44 689 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Beynolds v. Palmer (21 Fed. Rep. 
 
 429), 180. 
 V. Palmer (21 Fed. Eep. 433), 
 
 188. 
 V. Palmer (21 Fed. Rep. 440), 
 
 187. 
 V. Palmer (21 Fed. Rep. 453), 
 
 191. 
 V. Pitt (2 Price, 212), 219. 
 V. Scott ( Cal. ), 4 Pac. Eep. 
 
 346), 85, 95. 
 V. Witte (13 S. C. 5), 173. 
 Rhea v. Puryear (26 Ark. 344), 270. 
 Rhlnes v. Baird (41 Pa. St. 256), 
 
 228. 
 V. Phelps (3 Gilm. 455), 221, 
 
 231, 248. 
 Rhoades v. Castner (12 Allen, 132), 
 
 75. 
 R. I. Central Bank v. Danforth (14 
 
 Gray, 123), 239. 
 Rhodes v. Cleveland Rolling Mill 
 
 (17 Fed. Rep. 426), 98, 
 
 100. 
 Ribby v. Downey (6 Allen, 299), 
 
 306. 
 Rice V. Andrews (33 Vt. 691), 332. 
 V. Churchill (2 Denio, 145), 96. 
 V. Codman '1 Allen, 377), 193. 
 V. Courtis (32 Vt. 460), 239. 
 V. Cribb (12 Wis. 179), 245. 
 V. Cutler (17 Wis. 362), 327, 
 
 329. 
 V. Cutter (17 Wis. 362), 170. 
 V. Forsyths (41 Md. 389), 185, 
 
 190. 
 V. Gordon (11 Beav. 265), 277. 
 V. GrafEman (56 Mo. 434), 142. 
 
 269. 
 V. Manley (66 N. Y. 82), 158, 
 
 335. 
 V. Manley (66 N. Y. 82), 333. 
 V. Nixon (78 Ind. 97), 7. 
 V. Nixon (97 Ind. 97), 88. 
 V. Pelt (15 Johns. 503), 21. 
 690 
 
 Rice V. Parkman (16 Mass. 326), 
 
 252. 
 V. Rice (4 Pick. 349), 224. 
 V. Stone (1 Allen, 569), 51. 
 Rich V. Boyce (39 Md. 314), 272. 
 V. Cockerill (9 Ves. 69), 30. 
 V. Doane (35 Vt. 125), 224. 
 V. Milk (20 Barb. 616), 249. 
 V. Monroe (14 Barb. 612), 273. 
 V. Roberts (48 Me. 348; s. c. 
 
 50 Me. 395), 239. 
 V. Roberts (48 Me. 648), 240. 
 Richard v. Woodburry (12 Cash. 
 
 279), 152. 
 Richards v. Adamson (43 Iowa, 
 
 248), 263. 
 V. Doe (100 Mass. 524), 322. 
 V. Fuller (37 Mich. 161;, 196. 
 ■V. Holmes (18 How. 143), 250. 
 V. Holmes (18 How. 147), 265. 
 V. Porter (6 B. &. C. 437), 75. 
 V. Shaw (67 111. 222), 34. 
 V. Yoder (10 Neb. 329), 234. 
 "Richardson v, Alpena Lumber Co. 
 
 (40 Mich. 203), 233. 
 V. Boston Chemical Laboratory 
 
 (9 Met. 43, 52), 140. 
 V. Brown (1 Bing. 344), 194. 
 V. Bouck (42 Iowa, 185), 187. 
 V. Cramer (28 La. An. 357), 84«. 
 V. Copeland (6 Gray, 536), 230. 
 V. Dunn (2 Q. B. 222), 34. 
 V. Goss (3 Bos. & P. 119), 176. 
 V. Kelly (85 111. 491), 301. 
 V. Knight (69 Me. 285), 277. 
 V. Mason (63 Barb. 601), 194. 
 V. Mellish (2 Bing. 229; s. c. i» 
 
 Moore, 435), 298. 
 V. Merrill (32 Vt. 27), 29. 
 V. Olmstead (74 111. 213). 
 V. Rardin (88 111. 124), 106. 
 V. Rickman (5 T- R. 517), 144. 
 V. Squires (38 Vt. 640), 63. 
 V. Strong (13 Ired. 106), 23. 
 V. Tipton (2 Bush, 202), 185. 
 
TABLE OF CASES CITED. 
 
 References are 
 
 Richardson v. Woodbury (48 Me. 
 
 206), 227. 
 Kiches v. Evans (9 C. & P. 940), 
 
 174. 
 Richmond v. Dubuque, &o., R. R. 
 
 Co. (40 Iowa, 264 ; s. c. 
 
 43 Iowa, 422), 336. 
 Richmond Trading Co. v. Farquar 
 
 (8 Blatchf. 89), 193. 
 Richmond v. Foss (77 Me. 590"i, 
 
 306. 
 Richmond Iron Works v. Woodruff 
 
 (8 Gray, 447), 84. 
 Rickart». People (79 lU. 85), 12. 
 Ricker v. Cross (5 N. H. 670), 84. 
 Ricketson v. Richardson (16 Cal. 
 
 330), 234. 
 Ricketts V. Harvey (78 Ind. 152), 
 
 296. 
 Rickey v. Tenbrock (63 Mo. 563), 
 
 70, 334. 
 1). Tenbrock (63 Mo. 687), 334. 
 Ridford V. Montgomery (7 Vt. 418) , 
 
 310. 
 Ricks V. Dillahunty (8 Port. 133), 
 
 186. 
 Rider ». Edgar (64 Cal. 127), 233. 
 V. Kelley (32 Vt. 268), 89. 
 V. Powell (4 Abb. App. 63), 
 
 243. 
 Riddle V. Varnum (20 Pick. 280), 
 
 32, 83, 87, 205. 
 Ridgway v. Ingram (60 Ind. 148), 
 
 76, 286. 
 V. Wharton (6 H. L. C. 238), 
 
 76. 
 Ridgeway v. Kennedy (52 Mo. 24), 
 
 85, 206, 826. 
 Riford V. Montgomery (7 Vt. 411), 
 
 816, 824. 
 Rigg V. Johnson (6 Wall. 197), 255. 
 Riggan V. Green (80 N. C. 236), 
 
 22. 
 RiggsB.Am. Tract Soc. (96 N. Y. 
 
 503), 21. 
 
 to Sections. 
 
 Riggs V. Magmder (2 Cranch C. 0. 
 
 143), 69. 
 Righter v. Keller (31 Ark. 170), 
 
 160, 166. 
 Riley v. Boston Water Power Co. 
 (11 Cush. 11), 310, 313, 
 824. 
 V. ¥ransworth (116 Mass. 223), 
 
 76. 
 ■0. Mallory (33 Conn. 206), 229. 
 ». Wheeler (42 Vt. 528), 93. 
 Reinhart v. Olwin (5 Watts & S. 
 
 167), 332. 
 Ring V. Jamison (2 Mo. App. 684; 
 
 s. c. 66 Mo. 424) 19. 
 Ringo V. Binns (10 Pet. 269), 270. 
 Rish V. Sherman (21 Grant, Ch. 
 
 (Ont.) 250, 176. 
 Rishton v. Whatmore (8 Ch. D. 
 467), 76. 
 V. Whatmorr (L. E. 8 Ch. D. 
 467), 286. 
 Rising V. Garr (62 111. 14), 204. 
 Risley v. PhcBnix Bauk of N. Y. (83 
 
 N. Y. 318), 196. 
 Ritter's Appeal (9 Smith Pa. 19), 
 
 26. 
 Ritter o. Singmaster (73 Pa. St. 
 
 400), 149. 
 Rive V. Stacy) 8 Humph. 288), 258, 
 V. Guthrie (1 Jones N. C.) 87), 
 99. 
 Roach V. Turk (9 Heisk. 708), 272. 
 Eoch|». Deshler (3 Keyes, 572), 325. 
 Robert v. Garnie (3 Cains. 14), 152. 
 Roberts v. Veatty (2 Penn. & 
 Watts, 63), 150, 207. 
 V Brett (11 H. Cas. 337), 34; L. 
 
 J. C. P. 241), 100. 
 V. Crawford (58 N. H. 499), 226. 
 V. Crawford (64 N. H. 532), 243. 
 V. Fishee (43 N. Y. 159), 144, 
 
 149. 
 u. Hughes (81 111. 130), 187. 
 V. Jackson (1 Wend. 478), 237. 
 691 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Roberts B.Jenkins (21 N. H. 119), 
 
 194. 
 V. Mazeppa Hill Co. (30 Minn. 
 
 413), 100. 
 V. Morgan (2 Cow. 438), 193. 
 V. Eadclige (35 Kan, 602), 175. 
 V. Tliompson (14 Ohio, 1), 148. 
 V. Wiggins (1 N. H. 73), 229. 
 Bobertson v. Clarkson (9 B. Mon. 
 
 607), 195. 
 V. Livingston (5 Cow. 473), 
 
 273. 
 V. Stark (16 N. H. 12, 109), 234. 
 V. Strickland (28. Up. Can. 
 
 221), 87. 
 V. Yaughan (5 Sandf. 1), 68. 
 Boberson v. French (12 Met. 24), 
 
 308. 
 Robins v. Embry (1 Sm. & M. 
 
 208), 176. 
 Bobbins v. Baton (10 W. H. 561), 
 
 19. 
 V. Mount (4 Bob. (N. T.) 553), 
 
 18. 
 V. Oldham (1 Duv.28), 84a. 
 V. Oldham (1 Duball (Ky.) 28), 
 
 104. 
 V. Oldham (1 Duv. 29), 106. 
 V. Wolcott (27 Conn. 234), 277. 
 Bobiuson's Admr. v. Ellison (36 
 
 Ala. 525), 152. 
 Bobinson v. Bland (2 Burr. 1077), 
 
 292. 
 «. Bliss (121 Mass. 428), 250. 
 V. Campbell (8 Mo. 365; s. c. 
 
 615), 221, 248. 
 V. Campbell (8 Mo. 365), 241. 
 V. Cooper (1 Hill, 286), 283. 
 V. Cooper (1 Hill, 287), 187. 
 u. Corpsey (2 Edw. Ch. 138; 
 
 6 Paige, 480), 224. 
 V. Crenshaw (2 Stew. & P. 176), 
 
 296. 
 V. Doolittle (12 Vt. 246), 152. 
 V. Elliot (22 Wall. 513), 240. 
 692 
 
 Bobinson v. Ezzell (72 N. C. 231), 
 
 231. 
 V. Fitch (26 Ohio St. 659), 
 
 241. 
 V. Gordon (23 Up. Can. Q. B. 
 
 143), 67, 116. 
 V. Green (3 Met. 159), 61, 281. 
 V. Hill (15 N. H. 477), 234. 
 V. Hoskins (14 Bush. 393), 19 
 V. Hurley (H Iowa, 410), 316. 
 V. Krnse (29 Ark. 676), 231, 
 
 244. 
 Bobinson Mach. Works v. Chandler 
 
 (56 Ind. 576), 190. 
 V. Macdonnel (5 M. & S. 228), 
 
 252. 
 V. Mauldin (1 Ala. 977), 231, 
 
 232, 233. 
 V. MoUett (L. B. 7 H. L. 836), 
 
 272. 
 V. McDonald (2 Ga. 116), 324. 
 V. McDonnell (6 Man. & Sel. 
 
 228), 231. 
 V. Noble (8 Pet. 181), 102. 
 V. Bapelye (2 Stew. 86), 175. 
 V. Bead (9 B. & C. j 17 E. C, L. 
 
 R. 444), 146. 
 V. Shlpworth (23 Ind. 311), 
 
 311. 
 V. Tyson (46 Pa. St. 286), 207. 
 V. Uhl (6 Neb. 328), 84a. 
 V. United States (13 Wall. 363), 
 
 104,113. 
 V. Wall (lOBeav. 61), 285. 
 V. Weeks (56 Me. 102), 77, 18. 
 V. WiUoughby (65 N. C. 520), 
 
 227, 204, 227. 
 Bobson V. Bohn (27 Minn. 333), 
 
 210. 
 V. Michigan Central E. B. Co. 
 
 (37 Mich. 70), 232. 
 Boby V. West (4 N. H. 285), 290, 
 
 306. 
 Rocchi V. Schwabacker (33 La An. 
 
 1364), 167. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Rochester Oil Co. b. Hughley (56 
 
 Pa. St. 322), 89. 
 Kockvill V. Spraggs (9 Ind. 32), 
 
 174. 
 Eockford, etc.,R. E. Co. v. Lent (63 
 
 111. 288), 101. 
 V. Wilcox (66 111. tl7), 269. 
 Rockwoodv. CoUamer (H Vt. 141), 
 
 84a. 
 Rodee v. Wade (47 Barb. 53), 88. 
 Rodgers v. Jones (129 Mass. 422), 
 
 69. 
 V. Langhan (1 Sid. 133), 174. 
 V. Niles (11 Ohio St. 48), 187. 
 Bodges?;. Eodgess (13 Grant (Ont.), 
 
 143), 169. 
 Eodick V. Coburn (68 Me. 170), 317, 
 
 324. 
 Rodliff V. Dallinger (141 Mass. 1), 
 
 35, 272. 
 Rodman v. Guilford (112 Mass. 
 
 405), 332, 333. 
 V. Thalheimer (75 Pa. St. 232), 
 
 157, 170, 171. 
 Eodvigney v. Hefferman (5 John 
 
 Ch. 417), 273. 
 Eodwell V. Phillips (9 M. & W. 
 
 502), 59. 
 V. Phillipps (9 M. & W. 606), 
 
 231. 
 Eoeber v. Boone (26 Hun, 554), 
 
 174. 
 Eoebuoku. Hanerton (Comp. 737), 
 
 301. 
 Eochi V. Schwabacker (33 La. An. 
 
 1334), 187. 
 Eogan V. Walker (1 Wis. 527), 200, 
 
 228. 
 Rogers v. Blackwell (49 Mich. 192), 
 
 22. 
 V. Boehm (3 Esp. 701), 282. 
 V. Cox (96 Ind. 167), 69. 
 V. Dave (Wright, 136), 84a. 
 V. Hadley (2 H. & C. 227; 32 L. 
 
 J. Ex. 227), 79. 
 
 Rogers v. Hanson (35 Iowa, 
 197. 
 V. Hine (1 Cal. 429), 288. 
 V. Humphreys (39 Me. 302), 
 
 306. 
 V. Huntington Bank (12 Geog. 
 
 & R. 73), 219. 
 V. Miles (11 Ohio St. 48), 190. 
 V. Palmer (102 U. S. 263), 176. 
 V. Phillips (N. Y. 619), 65. 
 ». Reeves (1 T. E. 418), 298. 
 V. Thomas (20 Conn. 64), 136. 
 ^. Thomas (20 Conn. 63), 126, 
 
 136. 
 V. Traders Ins. Co. (6 Paige, 
 
 583, 694), 246. 
 V. Van Hoessen (12 Johns. 221) , 
 
 84. 
 V. Vaughan (31 Ark. 62), 228. 
 V. Ward (8 Allen, 387), 30. 
 V. Whltehouse (71 Me. 222), 
 
 206. 
 ■0. Woodruff (23 Ohio St. 632), 
 
 208, 214. 
 V. Zook (86 Ind. 237), 277. 
 Roget V. Merritt (2 Calnes, 117), 
 
 144, 146. 
 Rogier tf. Williams (92 III. 187), 
 
 84a. 
 Rohan u. Hanson (11 Gush, 44), 
 
 152. 
 Rohde V. Thwaites (6 B. & C. 688), 
 
 89. 
 Rohrle v. Stidger (50 Cal. 207), 316. 
 Roland v. Grundy (5 Ohio, 202), 316. 
 
 V. Grundy (5 Ohio, 203), 311. 
 Roll V. Ragnet (4 Ohio, 400), 296. 
 Rommel v. Wingate (103 Mass. 
 
 227), 89, 100, 101. 
 Rood V. Welch (28 Conn. 157), 234. 
 Roosevelt v. Bull's Head Bank (46 
 Barb. 579), 140. 
 V. Doherty (129 Mass 303), 273. 
 Root V. French (13 Wend. 570), 
 327, 329. 
 
 693 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Root V. Lord (23 Vt. 568), 206. 
 Boots V. Lord Dormen (4 B. & Ad. 
 
 77), 61. 
 Roper V. Johnsoa (L. B. 8 C. P. 
 167), 335. 
 V. Lane (9 Allen, 610), 88. 
 ».Lane (11 Allen, 591), 104. 
 Boquemore v. Alloway (33 Tex. 
 
 461), 294. 
 Roscarrlck v. Barton (1 Cas. inch. 
 
 217), 221. 
 Rose V. Seattle (2 Nott & McC. 
 538), 187, 188. 
 V. Bevan (10 Md. 466), 231. 
 ». Bozeman (41 Ala. 678), 335. 
 V. Colter (76 Ind. 690), 843. 
 V. Duncan (49 Ind. 269), 140. 
 V. Hayden (35 Kans. 106), 270. 
 V. Hurley (39 Ind. 77), 158, 
 
 163, 180. 
 V. Scott (17 Q. B. U. C. 386), 
 
 233. 
 V. Story (1 Barr. 190), 5, 325. 
 V. Trueax (21 Barb. 361), 299. 
 Roseman v. Conovan (48 Cal. 118), 
 
 159. 
 Rosenbaum v. Weeden (18 Gratt. 
 
 786), 334. 
 Rosenblatt v. Townsley (73 Mo. 
 
 536), 308. 
 Rosendort v. Hirschberg (8 Oreg. 
 
 240), 325. 
 Rosenstock v. Tormey (32 Md. 
 
 169), 272. 
 Rosenthal v. Rizley (11 Iowa, 541), 
 
 88. 
 Rosevear China Clay Co., Ex parte 
 
 (11 Ch. Div. 560), 133. 
 Ross' Appeal (9 Pa. St. 491), 59. 
 Ross V. Eby (28 Up. Can. 1 C. P. 
 316), 83. 
 V. Norvell (1 Wash. (Va.) 14), 
 
 228. 
 V. Ross (21 Ala. 322), 222, 224, 
 241. 
 694 
 
 Ross V. Sadgbeer (21 Wend. 166), 
 303. 
 V. Sedgwick (69 Cal. 247), 106. 
 V. Titterton (6 Hun, 280), 163. 
 V. Welch (11 Gray, 235), 104. 
 V. Welch (11 Gray, 236), 69. 
 V. Wilson (7 Bush, 29), 232. 
 Rossiter v. Miller (3 App. Cas. 
 1124), 33. 
 V. Miller (46 L. J. Ch. 228; 5 
 Ch. D. 648, C. A; s. c. 3 
 App. Cas. 1124), 76. 
 Rothschild v. Rowe (44 Vt. 389), 
 
 Sia. 
 Roudeau v. Wyatt (2 H. Bl. 63), 
 
 56, 58. 
 Rounge v. Mechanics' Fire Insur- 
 ance Co. (13 N. J. L. 
 110), 212. 
 Rourke v. BuUens (8 Gray, 549), 
 
 84a, 104. 
 
 Rouse V. Lowis (2 Keys, 352), 208. 
 
 Routledge v. Grant (3 C. & P. 
 
 267 (4 Bing. 663), 41. 
 
 V. Grant (4 Bing. 653), 40. 
 
 Rovengo v. DefEerari (40 Cal. 459), 
 
 35. 
 Rowan v. Sharps Rifle Co. (29 
 
 Conn. 283), 61. 
 Rowen V. Union Arms Co. (36 Vt. 
 
 124), 204. 
 Rowe V. Collier (25 Tex. 252), 144. 
 V. Farren (8 C. L. Ir. 46), 190. 
 V. Pickford (8 Taunt. 83), 130. 
 V. Sharp (57 Pa. St. 26), 203. 
 V. Sharpe (57 Pa. St. 346), 6. 
 Rowell V. McAshen (28 Mo. 70), 
 
 59. 
 Rowland v. Plummer (50 Ala. 182), 
 
 239. 
 Rowley v. Bartholomew (37 Iowa, 
 374), 233. 
 V. Blgelow (12 Pick. 207), 326. 
 V. Bigelow (12 Pick. 307), 133, 
 134, 170, 171. 
 
TABLE OF CASES CITED. 
 
 References are 
 
 Eowley u. Bigelow (12 Pick. 812), 
 
 125. 
 V. Eice (11 Met. 333), 51, 232. 
 Eoy V. Goings (6 Bradw. 162; s. c. 
 
 96 III. 3G1), 231, 232. 
 V. Goings (96 HI. 361), 241. 
 Eoyalton v. Eoyalton, &c., Co. (14 
 
 Vt. 311), 336. 
 Eoyce v. Watrous (7 Daly, 87; 73 
 
 N. Y. 597), 163. 
 Eozier v. WiUiams (92 111. 187), 106. 
 Eubidoux V. Parks (48 Cal. 215), 
 
 270. 
 Euchizky v. De Haven (97 Pa. St. 
 
 202), 272, 302. 
 Eucker ». Donovan (13 Kan. 251), 
 
 125, 130, 136. 
 V. Donovan (13 Kan. 256), 137. 
 Buckle V. Barbour (48 Ind. 274), 
 
 286. 
 Buckmau v. Beigholz (37 N. J. L. 
 
 437), 270. 
 V. Bergholz (38 N. J. L. 631), 
 
 272. 
 Budd V. Johnson (5 Litt. 19), 264. 
 V. Givens (Cal. 18 Pac. Eep. 
 
 421), 106. 
 Eudolph V. Winters (7 Neb. 125), 
 
 302. 
 Buffer V. United States (15 Ct. of 
 
 CI. 291), 104. 
 Buffiier V. Womack (30 Tex. 332), 
 
 204, 224. 
 Buffing V. Tilton (12 Ind. 260), 174. 
 Eugg V. Minett (11 East, 210), 87, 
 
 89. 
 V. Minnett (11 Bast, 218), 61. 
 V. Minnett (11 East, 200), 82. 
 Buggies V. Centerville Bank (43 
 
 Mich. 192), 284. 
 Buize V. Norton (4 Cal. 355), 34. 
 Eumball ». Metropolitan Bank (2 
 
 Q. B. Div. 194), 319. 
 Eumseyi). Berry (65 Me. 674), 272. 
 V. Berry (65 Me. 470), 302. 
 
 to Sections. 
 
 Bundell v. Keeler (7 Watts. 237), 17. 
 
 Eunyan v. Mersereau (11 Johns. 
 
 534), 221. 
 
 V. Groshen (12 N. J. Eq. 86), 
 
 84a, 239, 248. 
 
 Eupley V. Daggert (74 111. 351), 35. 
 
 Euppe V. Jarrett (94 111. 475), 
 
 160. 
 Bush V. Lane (4 Litt. 417), 304. 
 Eussell V. Butterfleld (21 Wend. 
 300), 241. 
 ». Carrington (42 N. Y. 118; 
 lAm. Eep. 498), 83, 105. 
 0. Carrlngton (43 N. Y. 118), 
 
 87, 88. 
 V. Clark (7 Cranch, 69), 160. 
 V. Fillmore (15 Vt. 130), 238, 
 
 243. 
 V. Minor (22 Wend. 659), 68. 
 V. Nichols (3 Wend. 112), 
 
 214. 
 B. Nicholopulo (8 C. B. (n. 8.) 
 
 362), 188. 
 ». O'Brien (127 Mass. 340, 549), 
 
 105, 106. 
 V. Palmer (2 WUs. 325), 283. 
 i;. Eichards (11 Me. 371), 265. 
 V. Southard (12 How. 139), 204, 
 
 224, 228. 
 V. Winne (67 N. Y. 591), 84a. 
 V. Winnie (37 N. Y. 591), 233. 
 Bust V. Gott (9 Cow. 169), 301. 
 Butenberg B. Main (47 Cal. 213), 
 
 271, 272. 
 Eyallu. EoUe (1 Ves. Jr. 851; 1 
 
 Atk. 165), 185. 
 Eyan v. Clanton (3 Strobh. L. 411), 
 
 289. 
 Eyani). Ulmer (108 Pa. St. 382), 
 
 187, 193. 
 Eider v. Nltge (21 Minn. 70), 191. 
 Eyder v. Wombwell (L. E. 4 Ex. 
 
 32), 17. 
 Eyno V. Darby (20 N. J. Eq. 231), 
 290, 298, 308. 
 
 695 
 
TABLE OF CASES CITED. 
 
 fieferences are to Sections. 
 
 Sabin v. Back of Worcester (21 Me. 
 
 353), 319. 
 Sacla V. Berthoud (17 Barb. 15), 
 
 277. 
 Sackett v. Twining (18 Pa. St. 202.) 
 Sadler v. Leigh (4 Camp. 194), 
 
 273. 
 V. Lewera (42 Ark. 148), 313. 
 Saftordo. McDonough (120 Mass. 
 
 290), 69. 
 V. McDonough (120 Mass. 291), 
 
 119. 
 Sage V. Browning (57 111. 217), 240. 
 V. Sleutz (23 Ohio St. 1), 210, 
 
 325. 
 V. Wilcox (6 Conn. 81), 76. 
 Sainsbury v. Matthews (4 M. & W. 
 
 434), 69. 
 St. John V. Hendrickson (81 111. 
 
 350), 163. 
 St. Joseph, The (1 Brown Adm. 
 
 202), 244. 
 St. Joze Indiana (1 Wheat. 208), 
 
 85, 89, 127. 
 St. Louis Church v. Bonneval (13 
 
 La. An. 321), 281. 
 St. Louis Drug Co. e. Dart (7 Mo. 
 
 App. 590), 231. 
 V. Kobinson flO Mo. App. 688), 
 
 241. 
 St. Louis E. R. Co. v. Rice (85 111. 
 
 406, 160. 
 Sainteru. Ferguson (7 C. B. 716), 
 
 303. 
 Saladin v. Mitchell (45 111. 79), 269, 
 
 271, 334. 
 V. Mitchell (46 111. 86), 334. 
 Sale V. Darragh (2 Hilt. 184), 63. 
 
 V. Lambert (18 Eq. 1), 76. 
 Salem India Rubber Co. «;. Adams 
 
 (23 Pick. 266), 160. 
 Sales V. Hickman (3 Pa. St. 180), 
 
 76. 
 696 
 
 Salisbury v. Stainer (19 Wend. 159), 
 
 188. 
 Sally Magee, The (3 Wall. 457), 323. 
 Salmon v. Bennett (1 Com. 625), 
 174. 
 V. Claggett (3 Bland, 126), 277. 
 Salmon Falls Mfg. Co. v. Goddard 
 (14 How. 446), 73, 77. 
 V. Goddard (14 How. 458), 76. 
 Salmons v. Pender (34 L. J. Exch. 
 
 95), 283. 
 Salsbury Mfg. Co. v. Chico (24 Fed. 
 
 Rep. 893), 213. 
 Salter v. Burt (20 Wend. 206), 99. 
 Salter v. Woolams (2 Man. & G. 
 
 660), 97, 104, 105. 
 Salts B. Field (5 T. R. 211), 176. 
 Saltus V. Everett (20 Wend. 267, 
 
 378), 310, 312. 
 Saltus V. Everett (20 Wend. 267), 
 
 316, 327. 
 Saltus, Matter of (3 Abb. App. 
 
 243), 277. 
 Sambeth v. Ponder (33 Ark. 707), 
 
 231. 
 Samms v. Alexander (3 Yeates, 
 
 268), 311. 
 Sample v. Lane (45 Miss. 566), 253. 
 Sampson v. Shawl (101 Mass. 150), 
 
 301. 
 Samson v. Lord (13 How. 198), 168. 
 
 V. Rhodes (8 Scott, 544), 98. 
 
 Samuel v. Evans (2 T. R. 669), 298. 
 
 Samuels v. Kings (60 Ind. 527), 149. 
 
 Sanborn v. Batchelder (61 N. H. 
 
 434), 163. 
 
 V. Benedict (78 111. 309), 62, 84, 
 
 211, 302, 333. 
 V. Coleman (6 N. H. 14), 316. 
 V. Flagler (9 Allen, 474), 76, 77. 
 V. Robinson (64 N. H. 239), 226. 
 V. Kittridge (20 Vt. 640), 314. 
 Sanders v. Chandler (26 Minn. 273), 
 174. 
 V. Johnson (29 Ga. 626), 308. 
 
TABLE OF CASES CITED. 
 
 Beferences are to Sections. 
 
 Sanders v. Keber (28 Ohio St. 630), 
 206, 325. 
 V. Lyon (2 McArtlmr, 462), 168. 
 V. Pepoon (4 Fla. 466), 239. 
 V. Vanzeller (12 L. J. Exch. 
 497), 321. 
 Sanderlin v. Roman Oatiiolic 
 Churcli (R. M. Cliarlt. 
 651), 286. 
 V. Trustees (R. M. Cliarlt. 
 651), 57. 
 Sanderson, In re (Cal. 13 Pac. Rep. 
 497), 277. 
 V. Price (1 Zab. 637), 241. 
 V. Rogers (3 Dev. L. 38), 258. 
 Sandilands v. Marsh (2 B. & Aid, 
 
 680), 76. 
 Sandford v. Handy (23 Wend. 269), 
 166. 
 V. Wiggins Ferry Co. (27 Ind. 
 622), 87. 
 Sands v, Lyon- (18 Conn. 18), 99, 
 140. 
 V. Taylor (5 Johns. 395), 163, 
 
 188, 334. 
 ». Taylor (5 Johns. 404), 188. 
 Sanger v. Eastwood (19 Wend. 
 
 614), 240. 
 Sarah Ann, The (2 Suran. 216), 276. 
 Saratoga Bank v. King (44 N. Y. 
 
 87), 292. 
 Sarbecker B. State (65 Wis. 171; 
 66 Am. Rep. 624), 85, 95. 
 Sarbecker v. State (66 Wis. 675), 
 
 84. 
 Sargeant v. Solberg (22 Wis. 132), 
 
 237. 
 Sargent v. Blunt (16 Johns. 74), 
 317. 
 V. Currier (49 N. H. 310), 185, 
 
 186. 
 V. Essex Marine R. R. Co. (9 
 Pick. 202), 319. 
 Sartwell v. Frost (122 Mass. 184), 
 268. 
 
 Sargent v. Giles (8 N. H. 325), 
 203. 
 V. Gill (8 N. H. 326), 9, 
 V. Graham (5 N. H. 440), 140. 
 V. Metcalf (5 Gray, 306), 85, 
 
 87, 206. 
 
 V. Strum (23 Cal. 359), 829. 
 
 V. Usher (55 N. H. 287), 244. 
 
 Sari V. BondUlon (26 L. J. C. P. 78 ; 
 
 1 C. B. (N. s.) 188), 76. 
 
 Sarle i>. Arnold (7 R. I. 582), 84a. 
 
 Sarter d. Gordon (2 Hill, 121), 337. 
 
 Satterfleld v. Smith (11 Ired. L. 
 
 60), 284. 
 Satterlee v. Frazer (2 Saudf. 141), 
 
 304. 
 Satterthwait ». Marshall (4 Del. 
 
 Ch. 337), 337. 
 Saunders v. Bartlett (12 Heisk. 
 316), 89. 
 V. Clark (106 Mass. 331), 45. 
 V. Frost (5 Pick. 270), 140. 
 Sauuderson v. Jackson (2 B. & P. 
 
 238), 75. 
 Saunders 'J. Topp (4 Ex. 290), 66. 
 V. Topp (4 Ex. 390), 67, 114. 
 V. Topp (4 Ex. 394), 69. 
 V. Wakefield (4 B. & Aid. 695), 
 76. 
 Savage v. Merle (5 Pick. 83), 143. 
 V. Murphy (34 N. Y. 508), 174. 
 V. Stephens (126 Mass. 207), 
 169, 160. 
 Savings Bank v. A-tchinson R. R. 
 
 Co. (20 Kan. 519), 323. 
 Sawlinsw. Wickham (3 De. Ges. & 
 
 J. 322), 163. 
 Sawyer et al. v. Taggart (14 Bush, 
 730), 302. 
 V. Fisher (32 Me. 28), 121, 222, 
 
 325. 
 V. Gerrish (70 Me. 254), 52, 
 
 231. 
 V. Joslin (20 Vt. 172), 130, 132. 
 V. Nichols (40 Me. 212), 84a. 
 
 697 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Sawyer v. Pennell (19 Me. 167), 
 
 239. 
 V. Shaw (9 Greenl. 47), 325. 
 V. Smith (109 Mass. 220), 306. 
 V. Turpin (91 U. S. 114; s. c. 
 
 13 N. Bank Eep. 271), 240. 
 Sawyer Wallace & Co. v. Daggert 
 
 (14 Bush, 730), 302. 
 V. Ware (36 Ala. 675), 58. 
 Saxon V. Barksdale (4Desaus. 526), 
 
 277. 
 Saxton V. Williams (15 Wis. 292), 
 
 241, 247. 
 Say V. Barwick (1 Ves. &B. 195), 25. 
 Sayles v. Wellman (10 R. I. 465), 
 
 290, 308. 
 Sayre v. Wheeler (32 Iowa, 559), 
 
 308. 
 Saysle v. Hewes (32 N. J. Bq. 652), 
 
 240. 
 Schade v. Bessenger (3 Neb. 140), 
 
 228. 
 Scharferburg v. Bishop (35 Iowa, 
 
 60), 232. 
 Schellc. Stephens (50 Mo. 375), 183, 
 
 283, 288. 
 Schenck v. Saunders (13 Gray, 37), 
 
 6, 8, 196. 
 Schennerhorn v. Loines (7 Johns. 
 
 313), 144. 
 Schiffer?7. Dietz (83 N. Y. 800), 163. 
 Schindler v. Westoover (99 Ind. 
 
 395) ,7. 
 Schlesinger v. Stratton (9 E. I. 
 
 578), 6, 213, 291, 325. 
 V. Texas, &c., R. R. Co. (13 
 
 Mo. App. 471), 272. 
 Schmertz v. Dwyer (53 Pa. St. 335), 
 
 89. 
 Schneider v. KolthofE (59 Ind. 668), 
 
 144. 
 V. Norris (2 M. & S. 286), 77. 
 Schnitzer v. Oriental Print Works 
 
 (114 Mass. 123), 188, 
 
 192. 
 
 698 
 
 Schomp V, Schenck (11 Vroom, 
 
 196), 304. 
 Scholfleld V. Bell (14 Mass. 40), 125. 
 School Director v. Trefethern (10 
 
 Bradw. 127), 41. 
 V. Dauchy (25 Conn. 630), 218. 
 School Trustees ». Bennett (27 N. 
 
 J. L. 614), 218. 
 Schooner Freeman, The v. Buck- 
 ingham (18 How. 182), 
 
 323. 
 Schorman ». R. R. Co. (L. R. 2 Ch. 
 
 App. 336), 85. 
 Scholsman v. Lancaster, &c., Ry. 
 
 Co. (2 Ch. 332), 85. 
 Schouse V. Neiswaanger (18 Mo. 
 
 App. 236), 335. 
 Schramm v. O'Connor (98 111. 539), 
 
 26, 168. 
 Schrutz V. Kleinmeyer (36 Iowa, 
 
 392), 194. 
 Schuchardt v. Aliens (1 Wall. 359), 
 
 183, 188, 269, 273. 
 Schufeldt V. Schnitzler (21 Hun, 
 
 462) 170, 171. 
 Schuff V. Ransom (79 Ind. 468), 24. 
 Schuelenberg v. Martin (1 McCrery, 
 
 348), 232. 
 Scull V. Shakespear (75 Pa. St. 
 
 297), 87. 
 Schultz V. Bradley (4 Daly, 29), 334. 
 Schutt V. Large (6 Barb. 373), 329. 
 Schuyler v. Euss (2 Caines, 202), 
 
 195. 
 Schwabacher v. Kane (13 Mo. App. 
 
 126), 136. 
 V. Riddle (99 III. 343), 158. 
 Scio, The (L. R.Adm. &Eccl. 353), 
 
 244. 
 Scoby V. Wood (69 Tenn. 66), 269. 
 Scorell V. Borall (1 How. & Jer. 
 
 396), 231. 
 Scott V. Alford (33 Tex. 82), 84o, 
 
 176, 240. 
 V. Britton (2 Yerg. 215), 324. 
 
TABLE or CASES CITED. 
 
 References are to Sections. 
 
 Scott V. Delahunt (5 Lans. 372), 
 
 241. 
 V. Eastern Counties E. R. Co. 
 
 (12 M. & W. 33), 70. 
 V. Fisher (i T. B. Men. 387), 
 
 152. 
 ■V. Freeland (16 Miss. 409), 270. 
 V. Gillmore (3 Taunt. 226), 292. 
 «. Henry (18 Ark. 112), 204, 
 
 224, 248. 
 V. Hi-s (2 Sneed, 192), 184, 185. 
 V. Kittaning Coal Co. (89 Va,. 
 
 St. 237), 209. 
 V. Llttledale (8 E. & B. 815; 27 
 
 L. J. Q. B. 201), 35. 
 V. Mann (36 Tex. 157), 270, 
 
 283. 
 V. McGrath (7 Barb. 63), 153, 
 
 269. 
 V. Pettit (3 Bos. & P. 469), 
 
 130. 
 ». PliOBGix Ins. Co. (Stuart 
 
 (Can.), 354), 212. 
 V. Eenick (1 B. Mo. 63), 190. 
 «. Eogers (31 N. Y. 676), 272. 
 V. Scott (2 A. K. Marsh, 215), 
 
 185, 186. 
 V. Searles (15 Miss. 498), 277. 
 V. Senwick (1 B. Mon. 64), 
 
 187. 
 V. Tyler (2 Dick. 720), 277. 
 V. Wells (6 Watts & S. 367), 
 
 87, 93, 269. 
 Scotten V. Sutter (37 Mich. 526), 
 
 332. 
 Scovell V. Boxall (5 Y. & Jerv. 396), 
 
 59. 
 Scranton v. Clark (39 N. Y. 320), 
 
 185. 
 Screwes v. Boach (22 Ala. 675), 87. 
 Scroggin v. Slater (22 Ala. 687), 59. 
 Scrnggs V. Gass (8 Yerg. 175), 
 
 147. 
 Scudder v. Bradbury (106 Mass. 
 
 422), 85, 86, 93, 217. 
 
 Scadder v. Calais Steamboat Co. 
 
 (Cliff. 370), 87. 
 V. Worater (11 Cush. 673), 88. 
 Sculance v. Hawley (13 0. B. (n. 
 
 S.) 458), 272. 
 Seaman ». Eager (16 Ohio St. 209), 
 
 239. 
 Scarl V. Galbraith (73 111. 269), 21. 
 Searing v. Brinkerhoff (5 Johns. 
 
 Ch. 329), 175. 
 Sears v. Brink (3 Johns. 210), 76. 
 V. Dixon (33 Cal. 326), 224. 
 V. Wingate (3 Allen, 103), 323. 
 Seaver v. Phelps (11 Pick. 304), 21, 
 
 22. 
 Seckel v. Scott (66 111. 106), 238. 
 ISecond Nat. Bank v. Dix (101 N. Y. 
 
 684), 157. 
 V. Miller (60 N. Y. 639), 30. 
 V. Walbridge (19 Ohio St. 419), 
 
 320, 323. 
 u. Walbridge (19 Ohio St. 424), 
 
 122. 
 Secomb v. Nutt (14 B. Mon. 261), 
 
 135. 
 V. Nutt (14 B. Mon. 324), 131. 
 Sedden a. Pringle (17 Barb. 466), 
 
 200. 
 Sedgwick v. Cottingham (54 Iowa, 
 
 512), 84, 87, 113. 
 Seed V. Lord (66 Me. 580), 217. 
 Seevers v. Delashmutt ("11 Iowa, 
 
 174), 240. 
 Segar v. Edwards (11 Leigh, 213), 
 
 270. 
 Segond v. Garland (23 Mo. 547), 
 
 30. 
 Seiple V. Irwin (30 Pa. St. 513), 
 
 142, 269, 272. 
 Seixas v. Wood (2 Cains, 48), 187. 
 Selden v. Beale (3 Greenl. 178), 8. 
 Seligmau v. Ealkman (8 Cal. 207), 
 
 170. 
 Selking v. Hebel (1 Mo. App. 840), 
 
 239, 240. 
 
 699 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Sellar v. Clelland (2 Col. 532), 335. 
 Seller v. ClellaDd (2 Col. 532), 160. 
 Sellers v. Stalcup (7 Ired. Eq. 13), 
 
 204. 
 Selser v. Roberts (105 Pa. St. 242), 
 
 188. 
 Semmers v. Wilson (5 Cranch C.C. 
 
 285), 149. 
 Sentance v. Poole, (3 & P. 1), 22. 
 Sentell v. Mitchell (28 Ga. 196), 34. 
 Senter v. Sala (4 P. D. 239 C. 
 
 A.), 101. 
 Sere v. McGovern (65 Cal. 244), 
 
 210, 325. 
 Sewall V. Pitch (8 Cow. 215), 58, 
 
 78. 
 Sewall V. Henry (9 Ala. 31), 224. 
 
 u. Henry (9 Ala. 24), 224. 
 Sewell V. Eaton (6 Wis.490), 83, 87. 
 V. Jones (9 Pick. 412), 281. 
 V. Price (32 Ala. 97), 228. 
 Sexton V. Graham (53 Iowa, 181), 7. 
 V, Graham (53 Iowa, 183), 6, 
 
 88. 
 B.Wheaton (8 Wheat. 229), 
 174. 
 Seymour v. Darrow, (31 Vt. 142), 
 234. 
 V. Davis (2 Sandf. 239), 58. 
 V. Marvin (11 Barb, 80), 152. 
 V. M. & C. T. Co. (10 Ohio, 
 
 476), 169. 
 V. Newton (105 Mass. 272), 136. 
 V. Newton (105 Mass. 275), 126, 
 
 130. 
 V. Norton (105 IT. S. 272), 85. 
 Shaffer v. Pickrell (22 Kan. 619), 
 233. 
 V. Sawyer (123 Mass. 294), 269. 
 Shand v. Hanley (71 N. Y. 319), 174. 
 Shardlow v. Cotterell (18 Ch. D. 
 280; 20 Ch. D. 90 C. A.), 
 76. 
 Sharkey v. Sharkey (47 Mo. 543), 
 227. 
 700 
 
 Sharman v. Brandt (L. K. 6 Q. B. 
 
 720), 78, 272. 
 Sharp V. Jones (18 Ind. 314), 327. 
 V. Mayor of N. Y. (40 Barlj. 
 
 256), 173. 
 V. Parks (48 111. 611), 313. 
 V. Ponce (74 Me. 470), 166. 
 V. Rodebpugh (70 Ind. 547), 
 196. 
 Sharpe v. Pearce (74 N. C. 600), 231, 
 
 233. 
 Shattuch V. Green (104 Mass. 42), 
 
 185. 
 Shaw V. Badger (12 S. & B. 275), 
 84. 
 V. Barkart (17 Int. 183), 163. 
 V. Clark (49 Mich. 284), 302. 
 V. Corbrey (13 Allen, 462), 59, 
 
 206. 
 V. Finney (13 Met. 453), 79. 
 V. Levy (17 S. & K. 99), 84a. 
 B. Nudd (8 Pick. 9), 835. 
 V. Picton (4 B. & C. 715), 162. 
 V. Railroad Co. (101 U. S. 567), 
 
 323. 
 V. Simpson (1 J. & W. 389), 
 
 286. 
 V. Spencer (100 Mass. 382), 277. 
 Shawhan v. Van Nast (25 Ohio St. 
 
 490), 89, 333, 334. 
 Shaw V. Wiltshire (65 Me. 485), 4, 
 
 222, 239. 
 Sheaf e v. Gerry (18 N. H. 245), 
 
 234. 
 SheanckB. Huber (6 Bum. 2), 311, 
 
 314. 
 Sheble v. Curd (56 Mo. 437), 241. 
 Sheehan v. Stackhouse (10 Me. 
 
 App. 469), 262. 
 Sheehy v. Manderville (6 Cranch, 
 
 263), 144. 
 Shelburn v. Letslnger (62 Ala. 96), 
 
 226. 
 Sheldon v. Capron (3B. I. 171), 36. 
 V. Conner (48 Me. 684), 231, 240. 
 
TABLE or CASES CITED. 
 
 Eeferences are to Sections. 
 
 Sheldon ii. Cox (8 Barn &C. 420), 12. 
 
 V. Warner (26 Mich. 403), 238. 
 
 Shell V. Hey wood (16 Pa. St.), 623, 
 
 230. 
 ■ V. Stein (76 Pa. St, 398), 239. 
 Shelton v. Franklin (68 111. 333), 84. 
 V. French (33 Conn. 489), 816. 
 Shenk v. Mingle (13 Serg. & R. 29), 
 306. 
 V. Phelps (6 Bradw. 612), 296. 
 Shepard v. Cross (33 Mich. 96), 210. 
 V. Milwaukee Gas Light Co. 
 (16 Wis. 818), 886. 
 Shepardson v. Gary (29 Wis. 34), 
 
 320. 
 Shepherd v. Gllroy (46 Iowa, 893), 
 
 196. 
 Sheperdtj. Hampton (8 Wheat 200), 
 
 835. 
 Shepard v. Lynch (26 Kan. 877), 
 
 102. 
 Shepardson v. Whipple (107 Mass. 
 
 442), 234. 
 Shephard v. Haas (14 Kan. 443), 
 
 196. 
 Shepherd v. Harrison (L. R. 4 Q 
 B. 196; L. R. 4 H. L. 
 116), 87. 
 o. Harrison (L. R. 4 Q. B. 196), 
 
 95. 
 V. Harrison (L. R. 4 Q. B. 196 ; 
 Ex. Ch. 498; L. R. 6 H. 
 L. 116), 85. 
 V. Pressey (32 N. H. 49), 64, 68. 
 V. Temple (3 N. H. 455), 1 68. 
 V. Temple (3 N. H. 457), 163 
 Shepleyt). Davis (5 Taunt. 617), 87, 
 88. 
 V. Earles (13 Hun, 661), 185. 
 Sheppard v. Union Bank of London 
 
 (7 Hurl. & N. 661), 317. 
 Sherbourne ». Colebach (2 Vent. 
 175), 301. 
 V. Goodwin (44N. H. 271, 279), 
 277. 
 
 Sherburne v. Shaw (I N. H. 157), 
 
 76. 
 Sheredine v. Gaul (2 Dall. 190), 
 
 140. 
 Sheriff v. McCoy (27 Up. Can. Q. 
 
 B. 597), 382. 
 Sherk v. Endres (13 W. & S. 266), 
 
 174. 
 Sherman v. Fitch (98 Mass. 59, 64), 
 236. 
 V. Clark (24 Minn. 37), 241. 
 B. Fitch (98 Mass. 58), 237. 
 <^. Howell (40 Ga. 257), 255. 
 V. Johnson (56 Barb. 69), 180. 
 V. Rugel (55 Wis. 346), 130. 
 V. Willett (42 N. Y. 146), 277. 
 Sherrington v. Yeates (12 M. & W. 
 
 866), 240. 
 Sherry v. Picker (10 Ind. 375), 824. 
 Sherwood v. Meadow Valley Mining 
 
 Co. (50 Cal. 412), 313. 
 Sherwin v. Mudge (127 Mass. 547), 
 
 87, 205. 
 Sherwood v. Stone (14 N. Y. 278), 
 
 278, 
 Shewalter v. Ford (34 Mass. 417), 
 
 196. 
 Shields v. Harrison (77 N. C. 116), 
 284. 
 V. Pettie (2 Sandf. 262; 4 N. Y. 
 
 122), 214. 
 V. Reibe (9 Bradw. 598), 114. 
 Shiff V. Johnson (57 N. H. 475), 294. 
 Shinners v. Brill (38 Wis. 648), 241. 
 Shipman v. Graves (41 Mich. 675), 
 115. 
 V. Horton (17 Conn. 481), 20. 
 V. Seymour (40 Mich. 283), 170, 
 171. 
 Shippen V. Bowen (122 U. S. 575), 
 
 180. 
 Shippey v. Eastwood (9 Ala. 198), 
 
 290, 293, 308. 
 Shireman v. Jackson (14 Ind. 459), 
 85, 825 
 
 701 
 
TABLE OP CASES CITED. 
 
 References are 
 
 Shirley v. Shirley (6 Blackf. 452), 76. 
 
 V. Shirley (9 Paige, 363), 30. 
 Shirras v. Craig (7 Cranch, 34), 
 
 234. 
 Shister v. Baxter (109 Pa. St. 443), 
 
 189, 190. 
 Shiver v. Johnston (62 Ala. 37), 246. 
 Short V. Spakeman (2 B. & Ad. 962), 
 73. 
 V. Woodward (13 Gray, 86), 
 194. 
 Shreve v. Brewston (51 Pa. St. 
 
 176), 336. 
 Shriner v. Keller (25 Pa. St. 61 ; 2 
 Am. Lead. Cas. 263), 
 144. 
 Shropshire Union R. & C. Co. v. 
 The Queen (L. E. 7; H. 
 L. Cas. 496), 319. 
 Shuart v. Taylor (7 How. Pr. 251), 
 
 230. 
 Shuenfeldt v. Junkerman (20 Fed. 
 Rep. 357), 85, 95. 
 V. Pease (16 Wis. 659), 327, 
 329. 
 Shumacher v. Eby (24 Pa. St. 521), 
 
 85. 
 Shuler v. Boutwell (18 Hun, 171), 
 
 239, 240. 
 Shuman v. Shu man (27 Pa. St. 90), 
 
 293, 308. 
 Shumway v. Reid (34 Me. 660), 
 146. 
 V. Ritter (8 Pick. 443), 84a. 
 V. Rutter (7 Pick. 66), 84a. 
 V. Rutter (7 Pick. 56; 8 Pick. 
 447), 104. 
 Shurtlefe v. Willard (19 Pick. 210), 
 96, 104. 
 V. Willard (19 Pick. 202), 84a, 
 238. 
 Sibley v. Hulbert (15 Gray, 609), 
 
 164. 
 Sidener ». Bibb (43 Ind. 230), 221, 
 247. 
 702 
 
 to Sectious. 
 
 Sidew V. Bible (43 Ind. 230), 239. 
 Sienon v. Wilson (3 Bdw. Ch. 36), 
 
 21. 
 Sievewright v. Archibald (20 L. J. 
 
 Q.B. 629; 17 Q. B. 116j, 
 
 79. 
 Sife V. Earman (26 Gratt. 666), 175. 
 Siffken v. Wray (6 East, 371), 126. 
 Silaby Mfg. Co. v. Chico (24 Fed. 
 
 Rep. 893), 213. 
 Sillers v. Lester (48 Miss. 513), 53, 
 
 232. 
 Silliman v. McLean (13 Up. Can. Q. 
 
 B. 644), 332. 
 Simar v. Canaday (53 N. Y. 298), 
 
 172. 
 V. Canaday (53 N. Y. 306), 166. 
 Simmons v. Green (35 Ohio St. 
 
 104), 207. 
 V. Jenkins (76 111. 479), 106, 
 
 221, 232, 248. 
 17. Pierce (16 Ohio St. 216), 
 
 230. 
 V. Swift (6 B. & C. 857), 122. 
 V. Swift (5 B. & C. 862), 86. 
 Simms v. Clarke (11 111. 137), 149. 
 V. MeDee (25 Iowa, 341), 239. 
 Simond v. Braddon (2 C. & B. 324; 
 
 40 Eng. L. & E. 285), 
 
 214. 
 Simon v. Ingham (6 B. & C. 72; 3 
 
 Dowl. & R. 249), 152. 
 Simon v. Motwos (3 Burr. 1921; 1 
 
 W. Bl. 699), 57. 
 Simons v. Jenkins (76 111. 479), 241. 
 ■V. Pierce (16 Ohio St. 216), 240. 
 Simpson v. Crippen (L. R. 8 Q. B. 
 
 14), 208. 
 V. Krumdick (28 Minn. 352), 
 
 70, 115. 
 V. Lamb (17 C. B. 603), 287. 
 Simpson v. Morris (3 N. C. 411), 
 
 239. 
 Simpson v. Peltus (7 Ala. 643), 
 
 286. 
 
TABLE OP CASES CITED. 
 
 References are to Sections. 
 
 Simpson v. Sliackleford (4 S. W. 
 
 Bep. 166; 49 Arlt. 63), 
 
 325. 
 Sims V. Canfleld (2 Ala. 555), 223, 
 
 246. 
 V. Eilancl (57 Miss. 607), 161. 
 V. James (62 Ga. 260), 325. 
 V. Marryatt (17 Q. B. 281; 
 
 20 L. J. Q, B. 454). 184, 
 
 185. 
 Simpson V. Ingham (2 B. & C. 72), 
 
 152. 
 Sinclair ». Hathaway (67 Mich. 60), 
 
 191. 
 Sinclair «. Healey (40 Pa. St. 417), 
 
 327. 
 Sinclair v. Learned (51 Mich. 335), 
 
 141. 
 Singer Co. v. Holcombe (40 Iowa, 
 
 33), 203. 
 Singer Co. ». Sammons (49 Wis. 
 
 316), 327. 
 Singer Machine Co. v. Graham (8 
 
 Oreg. 17), 325. 
 V. Jacobs (5 McCrary, 638), 174. 
 Singer &c., Co. v. Holdfodt (86 III. 
 
 455), 269. 
 Singer Mfg. Co. v. Chalmers (2 
 
 Utah, 542), 283. 
 V. Cole (4 Lea, 439; 40 Am. 
 
 Rep. 21), 9,210, 203. 
 V. Graham (8 Or. 17; 34 Am. 
 
 Eep. 57), 9, 210. 
 Singer Sewing Machine Co. v. 
 
 Treadway (4 111. App. 
 
 67); 210. 
 .V. Holcomb (40 Iowa, 33), 9. 
 Singerly v. Thayer (108 Pa. St. 
 
 291 ; 34 Am. Law Beg. 
 
 18), 213. 
 Sinker v. Comparett (62 Tex. 470), 
 
 325. 
 Single V. Phelps (20 Wis. 398), 232. 
 Singleton v. Herrlott (Dudley, 254), 
 
 284. 
 
 Singstach v. Harding (4 H. J. 186), 
 
 286. 
 Sioux City & P. B. B. Co. v. First 
 
 Nat. Bank (10 Neb. 566), 
 
 323. 
 Sirrine». Briggs (31 Mich. 443), 245. 
 Sisson V. Hubbard (10 Hun, 420), 
 
 230. 
 Skelton v. Manchester (12 B. I. 
 
 326), 206. 
 Skiff V. Solace (23 Vt. 279), 241. 
 Skillman v. Skillman (15 N. J. Bq. 
 
 388), 277. 
 Skinner v. Dayton (2 Johns. Ch. 
 
 526), 219. 
 Skinner v. Gunn (9 Port. (Ala.) 
 
 305), 269, 273. 
 V. Maxwell (66 N. C. 45), 229. 
 Skippers. Stokes (42 Ala. 255), 231.. 
 Skipwith V. Cunningham (8 Leigh, 
 
 271), 176. 
 Showhegan Bank v. Farrar (46 Me. 
 
 293), 233. 
 Skrine v. Simmons (11 6a. 401), 
 
 277. 
 Skull V. Glemister (16 C. B. (n. s.) 
 
 81), 284. 
 Slack V. Tucker (23 Wall. 321), 271. 
 Slater v. Emerson (19 How. 224), 
 
 208, 209. 
 V. Maxwell (0 Wall. 268), 168, 
 
 169. 
 Slaughter v. Gerson (13 Wall. 379), 
 
 187. 
 Slaughter v. Swift (67 Ala. 494), 
 
 246. 
 Slaymaker v. Irwin (4 Whart. 369), 
 
 33. 
 Slayton v. McDonald (73 Me. 50), 
 
 12. 
 Sledge B. Scott (56 Ala. 202), 168, 
 
 160, 162. 
 ■u. Scott (56 Ala. 208), 166. 
 Sleuter v. Wallbaum (45 111. 44), 
 
 335. 
 
 703 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Slime V. Redwin (30 Ga. 780), 277. 
 SlinglufE V. Eckel (24 Pa. St. 472), 
 
 168, 169. 
 Sbuart v. Taylor (7 How. Pr. 251), 
 
 230, 241. 
 Slocum V. Seymour (36 N. J. L. 
 
 138), 59. 
 Slocumbi). Holmes (1 How. (Miss.) 
 
 139), 146. 
 Slowey V. McMurray (27 Mo. 113), 
 
 204. 
 Slowey V. McMnrray (27 Mo. 116), 
 
 228. 
 Slnbey v. Heyward (2 H. Bl. 504), 
 
 122. 
 Slutz V. Desenberg (28 Ohio St. 
 
 372), 5. 
 Small V, Franklin Mining Co. (99 
 Mass. 277), 145. 
 V. Jones (1 Watts & S. 128), 
 
 169. 
 V. Marwood (9 B. & C. 300), 
 175. 
 Smalley v. Greene (52 Iowa, 241), 
 303. 
 V. Hendrickson (26 N. J. L. 
 371), 213. 
 Smart v. Batchelder (57 N. H. 
 140), 82, 205. 
 V. Waterhouse (6 Humph. 
 158), 277. 
 Smeltzer o. Lombard (57 Iowa, 
 
 294) 270. 
 Smiles v. Hobbs (2 N. E. Kep. (N. 
 
 H.) 845), 183. 
 Smith V. Acker (23 Wend. 653), 
 240. 
 V. Acker (23 Wend. 654), 241. 
 V. Allen (1 Lans. 101), 27. 
 V. Andrews (49 111. 28), 230. 
 V. Arnold (106 Mass. 269), 306. 
 V. Arnold (5 Mason, 416), 75, 
 
 76. 
 V. Arnold (5 Mass. 414, 420), 
 256. 
 704 
 
 Smith V. Arnold (5 Mason C. C. 
 
 414), 286. 
 e. Arnold (S Mason, 414), 78. 
 V. Atkins (18 Vt. 461), 52, 231, 
 
 302. 
 V. Ayer (101 U. S. 320), 277. 
 V. Bakers (40 L. T. (n. s.) 261), 
 
 191. 
 V. Beane (15 N. H. 577), 308. 
 V. Beatty (2 Ired. Eq. 466), 21, 
 
 171. 
 V. Beattie (31 N. Y. 542), 204, 
 
 228, 233. 
 V. Benson (1 Hill, 176), 230. 
 V. Berry (18 Me. 122), 335. 
 V. Bettger (68 Ind. 254), 144. 
 V. Bitterham (98 111. 188), 163. 
 V. Bodfish (39 Me. 136), 258. 
 V. Bowen (61 Wis. 258), 175. 
 ». Brady (17 N. Y. 173), 208, 
 
 209. 
 V. Briggs (3 Denio, 73), 212. 
 V. Brittenham (98 111. 188), 168. 
 V. Broomley (Dougl. 650), 175. 
 V. Bryan (5 Md. 141), 59. 
 V. Bryant (26 Wis. 34), 217. 
 V. Butterham (98 111. 188), 163. 
 V. Case (2 Oreg. 190), 290, 308. 
 V. Chadwick (L. R. 20 Ch. D. 
 
 58), 159. 
 V. Champney (50 Iowa, 174), 
 
 84a, 104. 
 V. Chance (2 B. & Aid. 753), 
 
 104. 
 V. Chester (1 T. R. 655), 144. 
 V. Clark (21 Wend. 83), 6. 
 V. Coolbaugh (21 Wis. 427), 
 
 221, 230, 247, 248. 
 ©.Countryman (30N. Y. 655), 
 
 158, 171. 
 V. Crisman (91 Pa. St. 428), 84o, 
 
 106. 
 V. Dennie (6 Pick. 262), 86, 86, 
 
 217. 
 V. Dunham (2 Kerr. 630), 197. 
 
TABLE OF CASES CITED. 
 
 Beferences are to Sections. 
 
 Smith V. Dunlap (12 111. 184), 335. 
 V. Elliott (1 Eat. & H. 307), 21. 
 V. Field (5 T. E. 402), 176. 
 V. Gillette (60 111. 290), 96. 
 V. Godfrey (28 N. H. 379), 294. 
 V. Gowdy (8 Allen, 566), 33. 
 V. Greenley (2 Dev. 126), 169. 
 V. Henry (2 Bail. 118), 84a. 
 V. Hines (10 Fla. 285), 84a. 
 V. Hodges (92 U. S. 183), 174. 
 V. Hudson (6 B. & S. 431), 122. 
 V. Hudson (6 B & S. 431; 34 
 L. J. Q. B. 143), 40, 65, 
 66, 68, 95. 
 V. Hughes (L. E. 9. Q. B. 597), 
 
 167. 
 V. Hughes (6 Q. B. 597), 161. 
 V. Jenks {1 Den. 580), 233. 
 B. Jenclis (1 Denio, 580; s. c. 
 IN. Y. 90), 231. 
 Jones (66 Ga. 338), 75. 
 Jones (7 Leigh, 165), 78. 
 Jones (7 Leigh, 176), 286. 
 Justice (13 Wis. 600), 194. 
 Kay (7 H. L. Gas. 774), 162. 
 Kelley (13 Met. 309), 17, 19. 
 Koust (50 Wis. 360), 221, 
 
 248 
 Lewis (40 Ind. 98), 101. 
 Lewis (26 Conn. 110), 207. 
 Lockwood (10 Johns. 367), 
 
 147. 
 Love (64 N. C. 439), 163. 
 Loyd (11 Leigh, 512), 152. 
 Lozo (42 Mich. 6), 325. 
 Lynes (1 Seld. 41), 93. 
 Lynes (1 Seld. 46), 327. 
 Lynes (5 N. Y. 41), 217, 326. 
 Manhood (14 M. & W. 452), 
 
 306. 
 McCullough (104 U. S. 25), 
 
 233. 
 Mclven (9 Wheat. 632), 265. 
 McLean (24 Iowa, 322), 233, 
 239. 
 
 Smith V. Meldren (107 Pa. St. 348), 
 
 262. 
 V. Meyer (9 Mass. 62), 19. 
 V. Meyers (L. E. 6 Q. B. 429; 
 
 L. E. 7 Q. B. 139), 214. 
 V. Miller (43 N. Y. 151 ; 62 N. 
 
 Y. 646), 145. 
 V. Miller (43 N. T. 171; s. c. 
 
 62 N. Y. 546), 148. 
 V. Miller (43 N. Y. 171), 144. 
 ». Moore (11 N. H. 65), 239, 
 
 '240. 
 V. Meyers (L. E. 5 Q. B. 429;7 Q. 
 
 B. 139), 60. 
 V. Neal (2 C. B. (n. s.) 67; 26 L. 
 
 J. C. P. 143), 76. 
 ». Niles (20 Vt. 315), 9. 
 V. N. Y. Cen. E. E. Co. (4 Keys, 
 
 180), 68. 
 V. Odom (63 Ga. 499), 59. 
 V. O'Donnell (8 Lea, 468), 196. 
 V. Owens (21 Cal. 11), 144. 
 V. Parkman (55 Miss. 649), 205. 
 V. Pettee (70 N. Y. 13), 214, 
 
 334. 
 V. Phiilips (47 Wis. 209), 221, 
 
 246, 248, 
 V. Post (1 Hun, 616), 241. 
 V. Post (1 Hun, 616; s. c. 3 T. 
 
 & C. 647), 238. 
 V. Quartz Mining Co. (14 Cal. 
 
 242), 224. 
 V. Eice (1 Bailey, 6'48), 187, 
 
 283. 
 V. Eice (56 Ala. 417), 230. 
 B.Eichards (29 Conn. 232), 306. 
 V. Eichards (13 Pet. 26), 158, 
 
 160. 
 V. Eowles (85 Ind. 264), 260. 
 V. Scholtz (68 N. Y. 41), 262. 
 V. Screven (I McCord, 368), 
 
 152. 
 V. Shell (82 Mo. 215), 76, 196. 
 e. Skeary (47 Conn. 47, 64), 
 
 176. 
 45 705 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Sinith V. Skeary (47 Conn. 47), 238. 
 V. Smith (21 Pa. St. 367), 157, 
 
 170. 
 O.Smith (27 N. H. 244), 84, 
 u. Smith (8 Blackf. 208), 76. 
 V. Smith (30 Vt. 39), 163. 
 V. Smith (2 Johns. 263), 150. 
 V. Smith (21 111. 244), 301. 
 V. Sparkman (55 Miss. 649) , 87. 
 V. Spencer (3 Ired. 256), 264. 
 V. Stephenson (45 Iowa, 645), 
 
 270. » 
 
 V. Summary (9 B. & C. 668), 58. 
 V. Surman (9 B. & C. 561), 75, 
 
 59, 69. 
 V. Taylor (21 111. 296), 277. 
 V. Townsend (109 Mass. 510), 
 
 270. 
 V. Tracy (36 N. Y. 82), 269. 
 V. Tracy (36 N. T. 79), 183, 
 
 268, 273. 
 V. Waggoner (60 WiSi. 155), 
 
 230, 289. 
 V. Ware (13 Johns. 257), 85. 
 V. Weaver (90 111. 392), 1. 
 V. Welch (10 Wis. 91), 84o. 
 V. Wheeler (7 Oreg. 49), 84, 94, 
 
 96. 
 V. Wood (37 Tex. 620), 143. 
 V. Worman (19 Ohio St. 145), 
 
 234, 244. 
 a. Zarcher (9 Ala. 208), 240. 
 Smith's Case (L. R. 2 Ch. 604), 
 
 163. 
 Smithurst v. Edmunds (14 N. J. Eq. 
 
 408), 53, 232. 
 V. Woolston (6 Watts & S. 
 
 106), 335. 
 Smoot's Case (15 Wall. 36), 218. 
 Smyth V. Craig (3 Watts & S. 14), 
 
 45, 46. 
 Snelgrove v. Bruce (16 Up. Can. C. 
 
 561), 189. 
 Snow V. Berry (9 Pick. 542), 140. 
 V. Miles (3 Cliff. 608), 34. 
 706 
 
 Snow V. Schomacher Mfg. Co. (69 
 Ala. Ill), 190, 194. 
 u. Warner (10 Met. 132), 65. 
 Snyder v. Gee (4 Leigh, 636), 84o. 
 V. Griswold (37 III. 216), 224. 
 V. Wiley (38 Mich. 483), 292. 
 Soffe V, Gallagher (3 E. D. Smith, 
 
 607), 144. 
 Sohier v. Mass. Gen. Hospital (3 
 
 Cush. 483), 252. 
 Soladina v. MitcheU (45 lU. 79), 
 
 272. 
 Soles V. Hickman (20 Pa St. 180), 
 
 76, 286. 
 Soloman v. Bushnell (11 Oreg. 272 j 
 
 60 Am. Rep. 475), 320. 
 Solomon v. Hathaway (126 Mass- 
 
 482), 206, 216, 325. 
 Solainon v. Moral (63 How. Pr. 
 342), 174. 
 V. Neidlg (1 Daly, 200), 113. 
 V. Webster (4 Col. 353), 36. 
 V. Chesley (58 N. H. 238), 104. 
 Somerby v. Buntin (118 Mass. 285), 
 
 59. 
 Somers v. McLaughlin (67 Wis. 
 364), 85, 95. 
 V. O'Donphue (9 Up. Can. C 
 
 P. 208), 185. 
 V. Richards (46 Vt. 170), 168, 
 
 164, 166. 
 V. Wright (116 Mass. 292), 336 
 Soraersworth Sav. Bank v. Roberts 
 
 (38 N. H. 22), 234. 
 
 Somer v. Brewer (2 Pick. 184), 174. 
 
 V. British Empire Shipping Co. 
 
 (IE. B. &E. 333; 27 L. 
 
 J. Q. B. 397; Ex. Ch.,E. 
 
 B. &E.367; 28L. J. Q.B. 
 
 220; 8 H. L. C. 338), 119. 
 
 Somes o. Skinner (16 Mass. 348), 
 
 21. 
 Sortwell V. Hughes (1 Curtis, 245), 
 294. 
 V. Hughes (1 Curtis, 244), 84. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Soule V. Bonney (37 Me. 128), 296. 
 South, etc., Ala. B. E. Co. v. Hen- 
 
 len (52 Ga. 606), 269. 
 South, etc., E. E. Co. v. Guest (34 
 
 Fed. Eep. 628), 163. 
 South, Australian Ins. Co. v. Ean- 
 
 dall (L. B. 3 P. C. C. 
 
 101), 6, 7. 
 Southard v. Benner (73 N. Y. 42i), 
 
 240. 
 Sottthbrldge Sav. Bank v. Exeter 
 
 Machine Works (127 
 
 Mass. 542), 59, 230. 
 Southern Life Ins. Co. v. Cole (4 
 
 Fla. 359), 69. 
 Southern Freight Co. v. Plant (45 
 
 Mo. 517), 93, 207. 
 Southwestern Freight Co. v. Stan. 
 
 ard (44 Mo. 71), 87, 120, 
 
 122. 
 Southwick V. Smith (29 Me. 228), 
 
 213, 325. 
 South worth v. Ashland (3 Sandf . 
 
 448), 231. 
 Sowden ». Craig (26 Iowa, 156), 
 
 230. 
 Spang V. Conn (12 Pa. St. 360), 264. 
 Spangler «. Butterfleld (6 Col. 356), 
 
 320. 
 S. P. Ferry u. Liable (27 N. J. Eq. 
 
 146), 277. 
 Sparker v. Marshall (2 Biug. N. C. 
 
 761), 89. 
 Spanman v. Eeim (12 Jones & S. 
 
 163), 158. 
 Sparrow v. Kelso (92 Ind. 514), 
 
 277. 
 Spartali ». Benecke (10 C. B. 212; 
 
 19 L. J. C. P. 293), 120. 
 
 V. Bentecke (10 C. B. 212), 86. 
 
 Spaulding v. Barnes (4 Gray, 330), 
 
 241. 
 B. Mozier (57 HI. 148), 233. 
 Specers v. Harvey (9 B. 1. 582), 89, 
 
 104. 
 
 Spear v. Atkinson (1 Ired. L. 262), 
 
 144. 
 Speelman v. Culberson (15 Ind. 
 
 441), 277. 
 Speero. Skinner (35 111. 282), 234. 
 Speers v. Sewell (4 Bush. 239), 21. 
 Spence v. Chadwick (10 A. & E. (n. 
 
 s.) 577), 214. 
 Spence v. Steadman (44 Ga. 133), 
 
 228. 
 Spencer v. Cone (1 Met. 283), 58. 
 V. Hale (30 Vt. 314), 65. 
 V. Jones (6 Gray, 602), 300. 
 V. Pearce (10 Gill & J. 294), 286. 
 V. Pierce (5 E. I. 63), 234. 
 V. Slater (L. E.4 Q. B. D. 13), 
 
 174. 
 Speur o. Ledergerber (56 Mo. 466), 
 
 143. 
 Spickler». Marsh (36 Md. 222), 
 
 213. 
 Spillers ». Creditors (16 La. Ann. 
 
 292), 152. 
 Spiney v. Wilson (31 La. An. 653), 
 
 84a. 
 Spirrett v. Willows (3 DeGex, J. & 
 
 S. 293), 174. 
 Speidt V. Heath (2 Camp. 57), 214. 
 Spotswood V. Barrow (1 Ex. 804), 
 
 113. 
 Spraguec. Blake (26 Wend. 61), 
 
 197. 
 V. Blake (20 Wend. 63), 63. 
 V. Graham (29 Me. 160), 245. 
 V. King (1 Puss. & B. 299), 83. 
 Sprigg V. Bk. of Mt. Pleasant (14 
 
 Pet. 201), 228. 
 Springer v. Drosch (32 Ind. 486), 
 
 174. 
 Spring Lake Iron Co. v. Waters 
 
 (50 Mich. 13), 174. 
 Springsted «. Lawson (23 How. Pr. 
 
 302), 194. 
 Sprinkle v. Mastin (72 N. C. 92), 
 
 152. 
 
 707 
 
TABLE OF CASES CITED. 
 
 References are 
 
 Spurr V. Albert Mining Co. (2 
 
 Hannay (N. b.), 361), 
 
 190. 
 Spurritt v. Spiller (1 Atk. 105), 
 
 175. 
 Squler v. Hunt (3 Price, 68), 98. 
 Squires u.Whidkan (3 Campb. 140), 
 
 301. 
 Stacey v. DeShaw (7 Hun, 449), 
 
 174. 
 Stackpole «. Earle (2 WiUs. 133), 
 
 298. 
 Stacy V. Kemp (97 Mass. 168), 
 
 196. 
 Stadfelt V. Huntsmen (92 Pa St. 
 
 53), 203. 
 Stadtfield v. Huntsman (92 Pa. St. 
 
 53), 9, 325. 
 Stafford ». Pooler (67 Barb. 143), 
 
 115. 
 V. Boot (9 Cow. 626), 20. 
 0. Walter (67 111. 83), 89. 
 V. Whitcomb (8 Allen, 518), 
 
 243. 
 Stagg V. Punter (3 Atk. 119), 277. 
 Stahl ». Charles (5 Abb. Pr. 348), 
 
 288. 
 Stain w.Ker (31 Miss. 199), 144. 
 Stainbackc. Read (11 Gratt. 281), 
 
 272. 
 Staines v. Shore (16 Pa. St. 200), 
 
 165. 
 Stallenwarck c. Thacher (115 Mass. 
 
 224), 317. 
 Stam V. Kerr (31 Miss. 199), 144. 
 Stamm v. Kuhlman (1 Mo. App. 
 
 296), 194. 
 Stanbrough v. Evans (2 La. An. 
 
 474), 277. 
 Stanford Bank v. Benedict (15 
 
 Conn. 437), 152. 
 Standiford's Admr. v. Schultz (5 B. 
 
 Mon. 681), 187. 
 Stanley v. Dowdeswell (L. R. 10 C. 
 
 P. 102), 33. 
 708 
 
 to Sections. 
 
 Stanley v. Gay lord (1 Cush. 636), 
 230, 316. 
 V. Gaylor (1 Cush. 636), 810, 
 
 324. 
 V. Jones (7 Blng. 369), 304. 
 Stanton v. Allen (5 Denlo, 434), 203. 
 e. Austin (L. R. 7 C. P. 651), 96. 
 V. Eagan (16 Pick. 467), 89, 134. 
 V. Eagar (10 Pick. 475), 125. 
 V. Tattershall (1 Sm. & 0. 529), 
 
 284. 
 V. Small (3 Sandt. 240), 51. 
 u. Wood (16 Q. B. 638), 100. 
 Staples V. Franklin Bank (1 Met. 
 
 43), 99. ' 
 Stapleton v. King (40 Iowa', 278), 
 
 335. 
 Stark V. Alford (49 Tex. 260), 333. 
 
 V. Coffin (105 Mass. 335), 143. 
 Starr v. Anderson (19 Conn. 431), 
 185. 
 V. Richmond (30 111'. 276), 152. 
 Startup V. McDonald (6 Man. & G. 
 
 593), 99, 113. 
 State V. Blakeman (49 Mo. 604), 
 294. 
 V. Carl (43 Ark. 353), 85, 95. 
 V. Conklin (19 Cal. 501), 281. 
 V. Duncan (16 Lea, 75), 271. 
 State Bank v. Fletcher (5 Wend. 
 
 85), 144. 
 State V. Gilliard (2 Bay, 19), 187. 
 V. Girardey (34 La. Am. 620), 
 
 281. 
 V. Heffner (84 N. C. 751), 166. 
 V. Lawson (14 Ark. 114), 263. 
 State of Maine v. Intoxicating 
 Liquors (61 Me. 520), 
 108. 
 State V. Mercer (38 Iowa, 415), 12. 
 V. Merritt (70 Mo. 275), 174. 
 V. O'Neal (58 Vt. 140), 56 Am. 
 
 Rep. 557), <^5. 
 V. O'Neil (58 Vt. 140) (56 Am. 
 Rep. 557), 95, 291. 
 
TABLE OF CASES CITED. 
 
 Beferences are to Sections. 
 
 State u. Phifer (65 N. C. 351), 158. 
 V. Plaisted (43 N. H. 413), 229. 
 V. Poulterer (16 Cal. 614), 281. 
 V. Roberts (7 Halst. 114), 258. 
 V. Backer (24 Mo. 657), 281. 
 V. Schulein (45 Mo. 621), 168. 
 V. Tomlin (29 N. J. L. 13), 166. 
 Staunton v. Austin (L. E. & C. 651), 
 
 94. 
 Stead V. Course (4 Craneh, 403), 
 
 284. 
 Steadman v. Hart (1 Kay, 607), 23. 
 Steamboat Charlotte v, Hammond 
 
 (9 Mo. 63), 144. 
 Stearns v. Barrett (1 Pick. 443), 
 303. 
 V. Gafford (56 Ala. 544), 225, 
 
 231. 
 V. Gage (79 N. Y. 102), 329. 
 V. Marsh (4 Denlo, 227), 274. 
 V. Washburn (7 Gray, 187), 94. 
 V. Wheeler (27 Barb. 658), 131. 
 Stebbins v. Phoenix Ins. Co. (9 
 
 Paige, 350), 319. 
 Stedmano. Gooch (1 Esp. 3), 147. 
 Steele v. Adams (21 Ala. 534), 24. 
 V. Benham (84 N. Y. 634), 84a, 
 
 238. 
 V. Curie (4 Dana, 385), 294. 
 V. Eilmaker (11 L. & R. 86), 
 
 165, 282. 
 V. MiUer (1 Atl. Rep. (Pa.) 434), 
 106. 
 Steele Works v. Dewey (37 Ohio St. 
 
 242), 84, 94. 
 Steers v. Lashley (6 T. E. 61), 272. 
 Stern v. Simpson (62 Ala. 194), 232. 
 Steets V. Leonard (20 Minn. 494), 
 
 218. , 
 
 Steiger v. Third Nat. Bank (2 Mc- 
 
 Crary, 494), 273. 
 Steiner ». McCall (61 Ala. 406), 234. 
 Stephens v. Chappell (3 Stobh. 80), 
 194. 
 V. EUs (65 Mo. 456) 185. 
 
 Stephens v. Elwall (4 Maule & L. 
 259), 315. 
 V. Harrow (26 Iowa, 458), 174. 
 V. Orman (11 Fla. 9), 167. 
 V. Pence (66 Iowa, 257), 232, 
 
 233. 
 <7. Sautee (49 N. Y. 35), 83. 
 V. Tucker (55 Ga. 643; s. c. 58 
 
 Ga. 391), 62, 231. 
 V. Tucker (14 N. J. L. 600), 233. 
 V. Winn (2 Nott & McCord, 
 R73m.), 76. 
 Stephenson v. Browning (48 111. 
 78), 240. 
 V. Cady (117 Mass. 6), 210. 
 V. Clark (20 Vt. 624), 84o. 
 ».. McLean (5 Q. B. D.346), 36, 
 
 40. 
 ■o. Newnham (13 C. B. 285), 327. 
 V. Eanney (2 Up. Can. C. P. 
 
 196), 6. 
 V. State (65 Ind. 409), 12. 
 Sterling v. Baldwin (42 Vt, 306), 
 59. 
 V. Ripley (3 Chand. Wis. 166), 
 
 84a. 
 ■17. Welcome (20 Wend. 228), 
 255. 
 Sterne v. Eilene (14 Allen, 9), 104. 
 Stern v. Freeman (4 Met. (Ky.) 
 309), 19. 
 V. Henley (68 Mo. 262) 84a. 
 Sterns v. Washburn (7 Gray, 187), 
 
 104. 
 Stetson V. O'SuUivan (8 Allen, 321), 
 
 282. 
 Steuben Co. Bank v. Mattheisson 
 
 (5 Hill, 249), 296. 
 Stevans v. Bell (6 Mass. 339) 316. 
 Stevans v. Hurlbed Bank (31 Conn. 
 
 146), 274. 
 Stevant v. Breunan (79 N. Y. 264), 
 
 329. 
 Stevens v. Bell (6 Mass. 339, 342), 
 175. 
 
 709 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Stevens v. Blanchard (3 Cush. 169), 
 
 240. 
 V. Bond (44 Md. 606), 260. 
 V, Boston, etc., K. R. Co. (8 
 
 Gray, 262), 322. 
 V. Brennan (79 N. Y. 254), 327. 
 V. Buffalo & N. Y. City K. K. 
 
 Co. (31 Barb. 690), 240. 
 V. Cunningham (3 Allen, 491), 
 
 213. 
 V. Eno (10 Barb. 95), 88. 
 V. Fuller (8 N. H. 463), 167. 
 «. Hurlbet Bank (31 Conn. 146), 
 
 274. 
 V. Irwin (15 Cal. 503), 106. 
 ». Lyford (7 N. H. 360), 336. 
 V. Orman (10 Fla. 9), 159. 
 V. Rainwater (4 Mo. App. 292), 
 
 158. 
 V. Kyford (7 N. H. 360), 335. 
 V, Smith (21 Vt. 90), 187. 
 V. Wheeler (27 Barb. 658), 130, 
 
 135. 
 Stewart v. Beale (7 Hun, 405; ». c. 
 
 68N.Y. 629), 239, 240. 
 V. Bosley (19 La. Ann. 439), 
 
 297. 
 V. Craig (3 Greene (Iowa), 
 
 505), 209. 
 V. Davis (31 Ark. 618), 308. 
 V. Emerson (52 N. H. 301), 
 
 170. 
 V. Emerson (62 N. H. 313), 
 
 167. 
 V. Fry (3 Ala. 673), 231, 242. 
 V, Garrett (4 Atl. Rep. (Md.), 
 
 399), 272. 
 V. Garvin (33 Mo. 103), 283. 
 V. Hanon (35 Me. 606), 241. 
 V. Lispenard (26 Wend. 299), 
 
 21. 
 V. Lord Kirkwall (8 Mad. Ch. 
 
 387), 30. 
 V. Mather (82 Wis. 344), 270, 
 
 272. 
 710 
 
 Stewart v. Nelson (26 Mo. 309), 
 168. 
 V. Piatt (101 U. S. 731), 239, 
 
 240. 
 V. Power (12 Kan. 596), 336. 
 V. Rogers (25 Iowa, 395), 174. 
 V. Severance (43 Mo. 322), 169. 
 V. Smith (60 Iowa (1882), 275), 
 
 238. 
 V. Spencer (1 Curt. C. C. 157), 
 
 175. 
 V. Woodward (50 Vt. 78), 268, 
 278. 
 Stiles V. White (11 Met. 356), 162, 
 
 163. 
 Steel V. Hart (1 N. Y. 20), 261. 
 StUt V. Little (63 N. Y. 427), 160. 
 Stinson v. Clark (6 Allen, 340), 104, 
 106. 
 V. Wrighley (86 N. Y, 332), 84a. 
 Stock V. Inglis (9 Q. B. Diy. 708), 
 
 89. 
 Stockdale ». Dunlap (6 M. & W. 
 224), 214. 
 V. Onwhyn (5 B. & C. 173), 
 306. 
 Stocker v. Partridge (2 Roberts, 
 
 193), 75. 
 Stockam v. AUard (4 T. & C. 279), 
 239. 
 V. Stockham (32 Md. 196), 39. 
 Stockton 27. Owlings (Litt. Sel. Cas. 
 
 266), 169. 
 Stoddard v. Dendison (38 How. 
 Pr. 296), 246, 247, 248, 
 260. 
 V. Smith (5 Bin. 355), 61. 
 Stoever v. Stocver (9 Serg. & B. 
 
 434), 227. 
 Stokes V. Frazier (72 111. 428), 274. 
 V. HoUis (43 Ga. 262), 228. 
 V. La Riviere, reported, in (3 
 East, 307), 129. 
 Stollenwerck v. Thatcher (115 
 Mass. 224), 271. 
 
TABLE OF CASES CITED. 
 
 References are 
 
 Stone V. ^Browning (51 N. Y. 211; 
 68 N. Y. 698), 66. 
 V. Browning (68 N. Y. 598), 
 
 64. 
 V. Dennison (13 Pick. 1), 17. 
 V. Denny (4 Met. 151), 160. 
 Stone V. Ebberly (1 Bay, 317), 311, 
 314. 
 V. Ellis (9 Cash, 95), 219. 
 ■u. Lane (16 Allen, 74), 234. 
 V. Meyers (9 Minn. 311) 174. 
 V. Nichols (43 Mich. 16), 150. 
 B. Peacock (35 Me. 385), 88, 104, 
 
 205, 386. 
 ■». Peacock (35 Me. 888), 83. 
 V. Perry (60 Me. 48), 217, 324. 
 ■0. Pointer (5 Munf. 287), 283. 
 D. Seymour (15 Wend. 19), 152. 
 V. Stone (12 Mo. 400), 283. 
 V. Waitt (31 Me. 409), 271. 
 Stonebreaker v. Kerr f40 Ind. 186), 
 
 235. 
 Stoner «. Weisser (24 Iowa, 434), 
 
 270. 
 Stoney v. Schultz (1 HiUCh. (S. C.) 
 
 465), 283. 
 Storeys. Krewson (66 Ind. 397), 140. 
 Storm V. Livingston (6 Johns. 44) , 
 324. 
 V. Smith (43 Miss. 497), 185. 
 Storms V. Storms (3 Bush, 77), 234. 
 Story V. Aguew (2 Bradw. 353), 
 174. 
 «. Pery (4 0: & P. 626), 17. 
 V. Solomon (71 N. Y. 420), 302. 
 Stottenwercki;. Thacher (115 Mass. 
 
 224), 86. 
 Stoutenborough v. Konkle (15 N. 
 
 J. Eq. 38), 170. 
 Stover V. Herrington (7 Ala. 142), 
 
 175. 
 Stowe ». Meserve (13 N. H. 46), 
 240. 
 V. Taft (58N.H.444), 104. 
 V. Taft (38 N. H. 445), 84a, 104. 
 
 to Sections. 
 Stowell V. Bair (5 Bradw. 104), 
 
 281. 
 Stowey V. McMurray (27 Mo. 113), 
 
 224. 
 Strang v. Allen (44 111. 428), 246. 
 Strange v. Wilson (17 Mich 342), 
 
 113. 
 Strauss v. Kranert (56 III. 254), 
 
 284. 
 Strauss v. Minzesheimer (78 111. 
 492), 84a. 
 ». Boss (25 Ind. 800), 82, 87. 
 II. Wessell (30 Ohio St. 211), 
 89. 
 Street v. Blay (2 Barn. & Ad. 456), 
 163, 197. 
 V. Chapman (29 Ind. 142), 38. 
 Stricklank v. Turner (7 Ex. 208), 
 
 50. 
 Stringer v. Davis (30 Gal. 318), 
 
 230. 
 Stronsberg v. Lindberg (25 Minn. 
 
 678), 250. 
 Strong a. Blake (46 Barb. 227), 
 140. 
 V. Cotton (1 Wis. 47), 266. 
 ». Dodds (47 Vt. 848), 66. 
 V. Doyle (110 Mass. 92), 59. 
 V. Foote (42 Conn. 203), 17. 
 ■o. Hart (6 B. & C. (13 C. C. L. 
 
 K.) 160), 146. 
 V. Nat. Bank Asso. (46 N. Y. 
 
 718), 274. 
 V. Stewart (4 Johns. Ch. 167), 
 
 228. 
 «. Strong (102 N. Y. 69), 163. 
 Stroud ». Marshall (Cro. Eliz. 398), 
 21. 
 V. Pierce (6 Allen, 413), 193. 
 Strubbeei). Trustees (78 Ky. 481), 
 
 813. 
 Strutt V. Smith (1 Comp. M. & R. 
 
 312), 332. 
 Stubbs V. Johnson (127 Mass. 219), 
 172. 
 
 711 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Stubbs V. Lund (7 Mass. 453), 125, 
 
 128, 133,214. 
 Stuckyu. Clyburn (Cheves, 186), 
 
 195. 
 Studwell V. Sharpter (54 N. Y. 249), 
 
 168. 
 Sturdevant ». Norrls (30 Iowa, 65). 
 Sturgls V. Corp (13 Ves. 190), 30. 
 
 V. Warren (11 Vt. 433), 238. 
 Sturtevant v. Orser (24 N. Y. 538), 
 
 126. 
 Suber v. Pulling (1 S. C. 273), 68. 
 Suffolk Bank v. Worcester Bank (6 
 
 Pick. 105), 139. 
 Suit V. Bonnell (33 Wis. 180), 115. 
 ■o. WciodhaU (113 Mass. 391), 
 
 89, 291. 
 V. Woodhall (113 Mass. 294), 84. 
 Sailings v. Goodyear Dental Co. (36 
 
 Mich. 313), 218. 
 Sumerby v. Buntin (118 Mass. 287), 
 
 337. 
 Summeril v. Elder (1 Binn. 106), 
 
 89, 126. 
 Summers i). Cook (28 Grant fOnt.), 
 179), 59. 
 V. Mills (21 Tex. 77), 40. 
 V. Mills (21 Tex. 47), 33. 
 V. Eoas (42 Miss. 749), 84a. 
 . Sleeth (45 Ind. 598), 207. 
 V. Vaughn (35 Ind. 323), 181. 
 Summons v. Swift (5 B. & C. 867), 
 
 87. 
 Sumner v. Batchelder (30 Me. 35, 
 39), 246. 
 V. Cattey (71 Mo. 121), 203, 210. 
 V. Cottey (71 Mo. 121), 9. 
 V. Dalton (38 N. H. 296), 84o, 
 
 226, 238. 
 V. Hamlet (12 Pick. 76), 231. 
 V. McFarlan (15 Kan. 600), 206. 
 V. Parker (36 N. H. 449), 163. 
 V. Stewart (69 Pa. St. 321), 272. 
 V. Summers (54 Mo. 340), 296. 
 V. Waagh (56 111. 531), 246. 
 712 
 
 Sumner v. Williams (8 Mass. 162), 
 
 277. 
 Suple V. Gilmour (5 Up. Can. C. P. 
 
 318), 113. 
 Surless v. Pipkin (69 N. C. 513), 
 23. 
 V. Sweeney (11 Oreg, 21), 324. 
 Sutherland v. AUhuser (14 L T. 
 (N. 8.) 113), 96. 
 V. Allhnsen (14 L. T. (n. s.) 
 666), 94. 
 Sutlifteo. Atwood (15 Ohio St. 
 
 186), 144. 
 Sutton V. Barlow (46 Iowa, 577), 
 84a. 
 V. Campbell (2 Thomp. & C. 
 
 695), 210. 
 V. Crosby (54 Barb. 80), 196. 
 Suydomu. Clark (5Sandf. 133), 79, 
 
 98. 
 Swan V. Chandler (8 B. Hon. 97), 
 296. 
 V. Drury (32 Pick. 485), 207. 
 V. Neswirth (7 Pick. 220), 273. 
 Swanford, Matter of (6 Maule & S. 
 226), 99. 
 V. Fnrguson (3 Lea, 292), 18. 
 Swain v. Shepherd (1 Mood & Rob. 
 
 223), 87. 
 Swatzell V. Martin (16 Iowa, 519), 
 
 263, 265. 
 Swayze v. Hull (3 Halst. 54), 298. 
 Swazey v, Parker (50 Pa. St. 441), 
 
 185. 
 Sweet V, Colgate (20 Johns. 196), 
 187. 
 V. James (2 E. I. 271), 144. 
 O.Lee (3M. &G. 542), 77. 
 V. Parker (22 N. J. Eq. 453), 
 
 228. 
 V. Pym (1 East, 4), 126. 
 V. Titus (11 N. Y. S. C. (4 
 Hun, 639), 146. 
 Sweetland v. Sweetland (3 Mich. 
 645), 204. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Sweetman vi Prince (62 Barb. 256) , 
 
 186. 
 S wetland v. S wetland (3 Mich. 482), 
 228. 
 V. Swetland (8 Mich. 646), 224. 
 Swett V. Colgate (20 Johns. 196), 
 
 186. 
 Swift V. Bennett (lOCush. 436), 17. 
 V. Thompson (9 Conn. 63), 84a. 
 Swikehard v. Russell (66 Barb, 560) , 
 
 158. 
 Swinkv.Snodgrass (17 Ala. 663), 
 
 277. 
 Swlnyard v. Boyes (6 M. & S. 62), 
 
 144, 146. 
 Swire v. Francis ("L. R. 3App.Cas. 
 
 106), 173* 
 
 Switzer v. Shiles (8 111. 529), 270. 
 
 V. Skiles (3 Gilm. 629), 169. 
 
 V. Skyles (8 Glim. 629), 169. 
 
 Swives V. Brotherline (41 Pa. St. 
 
 135), 283. 
 Swords V. Owen (43 How. Pr. 176), 
 
 306, 
 Swope V. Ardery (6 Ind. 213), 263. 
 Syms V, Scbotten (35 Kans. 310), 
 
 130. 
 Symns v. Schotten (10 Pac. Kep. 
 
 (Kans.) 728), 130. 
 Symonds v. Hull (37 Me. 364), 311, 
 
 314. 
 Syracuse, etc., E. E. Co. v. Collins 
 (3 Lans. 33), 145. 
 
 T. 
 
 Tabem. Hamlin (97 Mass. 489), 
 
 227, 247. 
 Tabor v. Mich. Mut. Ins. Co. (4 
 
 Mich. 331), 168. 
 Tabors «. Peters (74 Ala. 90), 195. 
 Taft V. Pike (14 Vt. 406), 20. 
 
 V. Sergeant (18 Barb, 320), 19. 
 V. Travis (136 Mars. 95), 47. 
 v.yradm&n (15 Ohio, 123), 163. 
 
 Tagg V. Tennessee Nat. Bank (9 
 
 Heisk. 479), 173. 
 Taglasco v. Molinan (9 (La. (o.s.) , 
 
 512), 77. 
 Taintor v, Prendergast (3 Hill, 72), 
 
 273. 
 Talcott V, Henderson (31 Ohio St.- 
 
 162), 170, 171. 
 Tallis V. Tallis (1 El. & BL 391), 
 
 303. 
 Tallman v. Franklin (14 N.Y. 684), 
 76, 286. 
 V. Jones (13 Kan. 438), 241. 
 Talton V. Ellison (3 Neb. 63, 74), 
 
 247. 
 Talmadge v. Blerhans (103 Ind. 
 270), 183. 
 V. Oliver (14 S. C. 522), 206, 
 222. 
 Talmage v. Bierhouse (103 Ind. 
 270), 269. 
 V. Nevins (2 Sweeney, 38), 271. 
 V. Scudder (38 Pa. St. 617), 
 
 324. 
 «. White (35 N. Y. S. C. 219), 
 207. 
 Talman v. Smith (39 Barb. 390), 
 
 221, 248, 219. 
 Tatty V. Freed man's Bank (93 U. 
 
 S. 321), 31 6. 
 Talver v. West (Holt, 178), 70. 
 Tamvaco v. Lucas (I El. & E. 681), 
 
 102. 
 Tamer v. Burkinshaw (L. E. 2 Ch. 
 
 488), 282. 
 Tamahill v. Tuttle (3 Mich. 104), 
 
 223, 247. 
 Tanner e. ScovUl (14 M. &W. 28), 
 
 122. 
 Tansley v. Turner (2 Bing. N. C. 
 
 161), 122. 
 Tansley|». Turner (2 Scott, 238), 87. 
 Tapley v. Butterfleld (1 Met. 515), 
 236. 
 V. Marstens ''8 T. R. 451), 146. 
 71.3 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Tabley v. McGee (6 Ind. 56), 18. 
 Tarbel v. Bradley (7 Abb. (N. C.) 
 
 273), 230. 
 Tailing i;. Baxter (6 B. & C. 360), 
 84, 86. 
 V. O'Elordan (2 L. R. Ir. 82, 
 C. A.; 27 L. J. Q. B. 
 Ill;, 89, 107. 
 Tarlton v. Baker (18 Vt. 9), 301. 
 Tarru. Sumner (12 Vt. 28), 19. 
 Tasker v. Bartlett (5 Cush. 364), 
 
 211. 
 Tate V. Williamson (L. R. 2 Cli. 
 
 55), 169. 
 Taussig ». Hart (49 N. Y. 301; s. 
 c. 58; N. Y. 425), 270, 
 272. 
 Tatum V. Kelly (25 Ark. 201), 294, 
 
 297. 
 Tawney v. Crother (3 Bro. Ch. 
 
 320), 75. 
 Tayloe v. Insurance Co. (9 How. 
 390), 39. 
 V. Merchants' Fire Ins. Co. (9 
 How. 390), 40. 
 Taylor v. Cole (111 Mass. 363), 84, 
 94. 
 V. Blanchard (13 Allen, 370), 
 
 303. 
 V. Boyd (3 Ohio, 337), 314. 
 V. Briggs (M. & M. 28), 146. 
 V. Finley (48 Vt. 78), 217. 
 V. Fleet (4 Barb. 95), 35, 167. 
 V. Guest (58 N. Y. 262), 161. 
 V. Jacques (106 Mass. 291), 
 
 296. 
 V. Jones (L. R. 1 C. P. D. 87), 
 
 38. 
 V. Mason (9 Wheat. 325), 218. 
 V. Maxow (9 Wheat. 325), 200. 
 V. M'Knead (5 C. P. D. 358; 
 s. c. 49 L. J. R. 563), 
 243. 
 V. Mississippi Mills (Ark.), 1 
 S. Rep. 283), 170. 
 714 
 
 Taylor v. Page (6 Allen, 86), 245. 
 V. Pickett (52 Iowa, 467), 292. 
 V. Reid C103 111. 349), 260. 
 V. Richardson (4 Houst. 300), 
 
 8ia. 
 V. Ross (3 Yerg. 330), 76. 
 V. Sandford (7 Wheat. 13), 152. 
 V. Saurman (110 Pa. St. 3), 164. 
 V. Starkey (59 N. H. 142), 269. 
 V. Stockwell (66 Ind. 505), 266. 
 V. Sutton (15 Ga. 103), 200, 
 
 218, 
 V, Twenty-flve Bales of Cotton 
 
 (26 La. An. 247), 84. 
 V. Wakefield (6 E. & B. 766), 
 
 40. . 
 V. Wells (3 Watts, 65), 271. 
 V. Wilson (11 Met. 44), 145, 
 283. 
 Taymon v. Mitchell (1 Md. Ch. 496), 
 
 187. 
 Teal V. Anty (2 B. & B. 99; s. c. 4. 
 J. B. Moo. 542), 231. 
 ■u. Aulty (2 Br. & B. 101), 59. 
 u. Spangler (72 Ind. 380), 144. 
 Teague v. Irwin (127 Mass. 217), 
 
 158. 
 Teasey v. Dalton (3 Allen, 380), 
 
 167. 
 Tedder v. Odom (2 Heisk. 68; 4 
 
 Helsk. 668), 294. 
 Tedford v. Wilson (3 Head. 311 
 
 232. 
 Teed v. Teed (44 Barb. 96), 71. 
 Tegalles v. Sewell (7 H. & N. 571), 
 
 89. 
 Tegler v. Shipman (33 Iowa, 194 ; 
 11 Am. Rep. 118), 85, 95. 
 Telford v. Adams (6 Watts, 429), 
 
 174. 
 Tell City Furniture Co. v. Stiles 
 
 (60 Miss. 849), 277. 
 Tempest v. Fitzgerald (3 B. &. Aid. 
 680), 69, 122. 
 V. Kilner (3 C. & B. 249), 59. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Tenbrook v. Brown (17 Ind. 410), 
 
 11. 
 Tennessee Bank v. Beattv (3 Sneed, 
 
 305), 258. 
 Tenn. Nat. Bank*. Albert (9 Heisk, 
 
 153), 84a. 
 Terhnne v. Dever (36 Ga. 648), 
 
 182. 
 Territt v. Bartlett (21 Vt. 184)_ 
 
 294. 
 Terry v. Belcher (1 Ball. (S. C.) 
 668), 84a. 
 V. Wheeler (25 N. Y. 525), 83, 
 84, 87. 
 Tewksburg v. Bennett (31 Iowa, 
 83), 193. 
 V. Spruance (75 lU. 187), 270, 
 272. 
 Thacher v. Moors (134 Mass. 156), 
 
 317. 
 Thames, The (14 Wall. 98), 322. 
 Thatcher v. Dinsmore (5 Mass. 
 302), 144. 
 V. Phinney (7 Allen, 150), 174. 
 Thayer v. Bracket! (12 Mass. 450), 
 140. 
 V. Luce (22 Ohio, St. 62), 75. 
 V. Manley (73 N. T. 309), 43. 
 V. Meeker (86 III. 470), 140. 
 1). Peck (93 111. 357), 145. 
 V. Sheriff (2 Bay, 169), 187, 283. 
 V. Starch (6 Cash. 11), 237. 
 V. Turner (8 Met. 552), 163. 
 Thetford v. Hubbard (22 Vt. 440), 
 
 300. 
 Thedford v. McClintock (47 Ala. 
 
 647), 297. 
 Thing V. Libby (16 Me. 65), 19. 
 Third Nat. Bank v. Armstrong (25 
 
 Minn. 530), 210. 
 Thomas v. Brown (1 Q. B. D 714), 
 76. 
 ». Davenport (2 Smith's Lead 
 
 Cas. 347) , 168. 
 V. Bering (1 Keen. 729), 98. 
 
 Thomas v. Bike (11 Vt. 273), 18- 
 B.Ellis (4 Ala. 108), 209. 
 V. Folwell (2 Whart. 11), 30. 
 V. Hammond (47 Tex. 42), 196. 
 V. Hunter (29 Md. 412), 153. 
 ■u. Kerr (3 Bush, 619), 165. 
 ■a. Knowles (128 Mass. 22), 218. 
 ■a. Le Baron (8 Met. 363), 260. 
 V. Miles (3 0^.io St. 274), 303. 
 V. Melson (69 N. Y. 118), 196. 
 V. Renster (3 lud. 369), 277. 
 ». Roberts (16 M. & W. 778), 
 
 18. 
 V. Sexton (15 S. C. 93), 187. 
 V. Shoemaker (6 Watts & S. 
 
 179), 99. 
 V. Simpson (80 N. C. 4), 190. 
 V. The State (37 Miss. 353), 88. 
 B.Todd (6 Hill. 340), 149. 
 Thompkins u. Haas (2 Pa. St. 74), 
 
 61. 
 Thompson o. Alger (12 Met. 435), 
 
 71, 333. 
 V. Baltimore, &c., R. R. Co. (28 
 
 Md. 396), 95, 104, 120, 
 
 122, 129. 
 V. Bank (82 N. Y. 1), 145. 
 V. Bankes (2 Md. Ch. 430), 204. 
 o. Bertrand (23 Ark. 731), 194. 
 V. Blanchard (4 N. Y. 303), 84a. 
 
 222, 243. 
 B. Botts (8 Mo. 710), 195. 
 V. British No. Am. Bank (82 N^ 
 
 Y. 1), 144. 
 V. Brown (Moody & M. 40), 152. 
 V. Chummey (8 Tex. 389), 204. 
 V. Conover (32 N. J. L. 466), 87. 
 V. Bavis (13 Johns. 112), 169, 
 
 303. 
 V. Bowning (14 L. J. Exch. 
 
 320), 321. 
 V. Foerstel (10 Mo. App. 290), 
 
 232. 
 V. Gardiner (1 C. P. D. 777), 79. 
 V. Gould (20 Pick. 139), 218. 
 715 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Thompson v. Kelley (10 Mass. 291), 
 
 283. 
 V. Lay (4 Pick. 48), 19. 
 V. Lee (3 Watts & S. 479), 327. 
 V. Llbby (34 Minn. 374), 196. 
 V. Libby (29 N. W. Rep. 
 
 (Minn.) 150), 117. 
 V. Lindsay (3 Brev. 306), 187. 
 V. Maceroni (3 B. &C. 1), 70. 
 V. Peck (115 Ind. 612), 163. 
 V. Perkins (3 Mass. (U. S.) 
 
 232), 273. 
 V. Phillips (Baldw. 246, 272), 
 
 256. 
 V, Bay (46 Ala. 224), 85, 208. 
 V. Reynolds (73111. 11), 304. 
 V. Rose (16 Conn. 81), 170,327, 
 
 329. 
 V. Spittle (102 Mass. 207), 230. 
 W.Taylor (15 Phila. 250), 170. 
 V. Thompson (4 Cush. 127), 
 
 135. 
 V. Toland (48 Cal. 99), 319. 
 V. Van Vechten (27 N. Y. 568), 
 
 234, 240, 246. 
 V. Wedge (50 Wis. 642), 120, 
 
 121. 
 V. Wilhite (81 111. 365, 456), 
 
 84a, 104, 138. 
 V. ■Williams (58 N. H. 248), 
 
 293, 408. 
 V. Wilson (27 Ind. 370), 145. 
 V. Woodruff (7 Cold. 401) ^ 
 
 335. 
 V. Yeck (21 111. 73), 84a. 
 Thornburg v. Whitacre (2 Ld. 
 
 Raym-. 1164), 218. 
 Thorndike ». Bath (114 Mass. 116; 
 
 19 Am. Rep. 318), 104. 
 V. Locke (98 Mass. 340), 533. 
 Thorne v. Barwick (16 Up. Can. C. 
 
 P. 369), 39. 
 V. Prentis (83 111. 99), 160. 
 Thornett v. '• Haines (15 M. & W. 
 
 367), 166, 285. 
 716 
 
 Thornhill v. Gilmer (4 Smed. & M. 
 
 153), 221,248. 
 Thornton v. Appleton (29 Me. 298), 
 21. 
 V. Hoyden (31 111. 200), 266. 
 V. Charles (9 M. & W. 802), 79. 
 C.Cochran (61 Ala. 415), 241. 
 V. Davenport (1 Scam. 296), 
 
 84a. 
 V. Gllman (4 Smed. & M. 153), 
 
 241. 
 V. mingworth (2 Barn. & C. 
 
 824), 19. 
 V. Kempter (6 Tannt. 786), 35, 
 
 76, 79. 
 V. Meux (1 M. & M. 43), 79. 
 V. Tandy (39 Tex. 544), 84o. 
 Thornworthi). Armstrong (20 Minn. 
 
 464), 260. 
 Thorpe v. Cowles (55 Iowa, 408), 
 231. 
 V. Fowler (57 Iowa, 541), 206, 
 230. 
 Thrall v. Hill (110 Mass. 328), 302. 
 V. Lathrop (30 Vt. 307), 329. 
 V. Newell (19 Vt. 202), 186. 
 Thrash v. Bennett (57 Ala. 156), 
 
 225. 
 Throckmorton v.' Price (28 Tex. 
 
 605), 239. 
 Thrupp V. Fielder (2 Esp. 628), 19. 
 Thurber v. Minturn (62 How. Pr. 
 
 27), 233. 
 Thurlow V. Gilmore (40 M. 378), 19. 
 Thurman v. Jenkins (2 Baxt. 426), 
 231. 
 V. Wilson (7 Bradw. 312), 333, 
 334. 
 Thnmell v. Balbrine (2 C. B. 786), 
 
 45, 46. 
 Thurston ». Blanchard (22 Pick. 
 20), 163. 
 V. Percival (1 Pick. 415), 292, 
 
 304. 
 V. Spratt (52 Me. 202), 185. 
 
TABLE OF CASES CITED, 
 
 References are to Sections. 
 
 Tibbetts ». Jageman (58 111. 43), 261. 
 
 V. Moore (23 Cal. 208), 230. 
 
 Tice V. Gallup (2 Hun, 446), 183. 
 
 269. 
 Tlcknor v. McClelland (84 lU. 471). 
 
 84o, 106. 
 Tiedeman v. Knox (68 Md. 612), 
 
 323. 
 Tiffany v. Warren (37 Barb. 571 ; 24 
 
 How. Pr. 293), 240. 
 Tufft V. Horton (53 N. Y. 377), 230. 
 Tillotson V. Cheetham (2 Johus. 
 
 63), 258. 
 Tilson V. TerwlUiger (56 N. Y. 273), 
 
 84a. 
 Tilt V. La Salle Silk Mfg. Co. (5 
 
 Daly, 20), 334. 
 V. SilverthroDe (U Up. Can. Q. 
 
 B. 619), 6. 
 Tilton Safe Co. v. Tisdale (48 Vt. 
 
 83), 190. 
 Timras v. Shannon (19 Md. 296), 
 
 221. 
 Timrod v. Shoolbred (1 Bay, 324), 
 
 187. 
 Tindall v. Wasson (74 Ind. 495), 
 
 233. 
 Tipton V. Faitner (20 N. Y. 423), 
 
 34. 
 V. Feltner (20 N. Y. 423), 93, 
 
 201. 
 o. Triplett (1 Met. (Ky.) 676), 
 
 186. 
 Tisdale v. Harris (20 Pick. 9), 59, 
 
 196. 
 Tison V. People's Saving & Loan 
 
 Ass'n (57 Ala. 323), 234, 
 
 245. 
 Titcomb v. Wood (38 Me. 563), 168, 
 
 327, 329. 
 Titus V. Mabee (25 HI. 257), 232. 
 Tober v. Peters (74 Ala. 90), 193. 
 Tobey v. Barber (5 Johns. 68), 144, 
 
 146, 147, 148. 
 Toddo V. Ames (60 Barb. 462), 30. 
 
 Todd V. Campbell (32 Pa. St. 260), 
 204. 
 V. Hardie (5 Ala. 698), 204, 224. 
 V. Hardig (5 Ala. 698), 228. 
 V. Lee (16 Wis. 365), 30. 
 V. Lee (16 Wis. 480), 29. 
 V. Liverpool, &c., Ins. Co. (20 
 Up. Can. C. P. 623), 317. 
 V. Loft (7 Allen, 371), 337. 
 Togninl w. Kyles (17 Nev. 209; 45 
 
 Am. Rep. 442), 104. 
 Tohnan v. Johnson (43 Iowa, 129) , 
 
 291. 
 Tooke V. Hollingsworth (6 T. R. 
 
 216), 93. 
 Toland v. Murray (18 Johns. 24), 
 
 273. 
 Toledo, etc., Ry. Co. v. Gilvin (81 
 
 111. 511), 93. 
 Tomkins v. Katie (11 Neb. 147), 
 
 140. 
 Tomkinson v. Straight (25 L. J. C. 
 P. 85; 17 C. B. 697), 63. 
 Tonilinson v. Bulls (101 Ind. 538), 
 
 196. 
 Tomlinson Carriage Co, o. Kin- 
 sella (31 Con. 269), 152. 
 V. Greenfield (31 Ark. 267), 
 
 231. 
 V. Savage (6 Ired. Eq. 278), 
 165. 
 Tompkins v. Batie (11 Neb. 147, 
 151), 221. 
 V. Batie (11 Neb. 147), 246. 
 V. Dudley (25 N. Y. 272), 218. 
 ». Nichols (63 Ala. 197), 174. 
 V. TifBtts (Hannay .(n. b.) 
 
 317), 84. 
 0. Wheeler (16 Pet. 106), 175. 
 Tompson v. Cincinnati, etc. , R. R. 
 Co. (1 Bond, 152). 84. 
 V. Purcell (10 Allen, 426), 209. 
 V. Stewart (7 Phila. 187), 133. 
 Toms V. Wilson (4 B. & S. 442; 32 
 L. Q. B. 33, 382), 100. 
 717 
 
TABLE OF CASKS CITED. 
 
 Eet'erences are to Sections. 
 
 Tone V. Wilson (62 111. 529), 160. 
 Tonvllle v. Casey (I Murphy (N. 
 
 C), 389), 231. 
 Tooke V. Bonds (29 Tex. 419), 152. 
 
 V. Newman (75 III. 215), 260. 
 Toole Company v. Norrls (2 Wall. 
 
 46), 298. 
 Toomer ». Dawson (Cheves, 68), 75. 
 Tophamt). Braddick (1 Taunt. 572), 
 
 282. 
 Topping V. Lynch (2 Rob. 484), 
 
 238. 
 V. Boot (5 Cow. 404), 211. 
 Torrance v. Bolton (L. R. 14 Eq. 
 
 124), 284. 
 Tourret v. Cripps (48 L. J. Ch. 567), 
 
 77. 
 Torrey v. Bank of Orleans (9 Page, 
 
 649), 277. 
 V. Baxter (13 Vt. 452), 144. 
 Torry v. Corliss (33 Me. 333), 89, 
 
 291. 
 Torrey v. Hadley (27 Barb. 196), 
 
 144, 
 Totteridge v. Mackally (Sir Wm. 
 
 Jones, 341), 298. 
 Towell V. Gatewood (2 Scam. 24), 
 
 181, 193. 
 Tower v. O'Neill (66 Pa. St. 332), 
 
 272. 
 », Tudhope (37 Up. Can. Q. B. 
 
 200), 67, 115. 
 Towers ». Osborne (1 Strange, 506), 
 
 68. 
 V. Barrett (1 T. B. 133), 163. 
 Towle V. Blake (38 Me. 528), 292. 
 V. Dresser (73 Me. 332), 18, 20. 
 V. White (21 Weekly Rev. 
 
 465), 8. 
 Town V. Trow (24 Pick. 168), 140, 
 
 142. 
 Towns V. Collins (14 Mass. 400), 
 
 311. 
 Townley v. Crump (4 A. & E. 58), 
 
 122. 
 718 
 
 Townsends v. Bank of Becine (7 
 
 Wis. 185), 149. 
 Townsend v. Drakeford (1 Car. & 
 
 K. 20), 79. 
 V. Hargrave (118 Mass. 826), 
 
 70. 
 V. Van Tassell (8 Daly, 261), 
 
 282. 
 Townvill V. Casey (1 Murphy, 389), 
 
 302. 
 Towsend v. Henry (9 Bich. L. 318), 
 
 154. 
 Towson V. Havre -de -Grace Bank* 
 
 The(6Har. &J.53),140. 
 Tracy «. Tolmedge (14 N. Y. 162), 
 
 294. 
 Traftono. Hawes (102 Mass. 541), 
 
 174. 
 Train v. Wellington (12 Mass. 496), 
 
 238. 
 Trainer v. Morrison (78 Me. 160), 
 
 142. 
 Trash v. Bennett (67 Ala. 166), 231. 
 Trask v. Bowers (4 N. H. 309), 
 
 840. 
 Travis ». Bishop (13 Met. 304), 
 
 240. 
 Treadwell v. Moore (34 Me. 112), 
 
 152. 
 Tredwell v. Beynolds (39 Conn. 31), 
 
 115. 
 Treawello. Aydlette (9 Heisk. 388), 
 
 133. 
 Trebilock v. WUson (2 Wall. 687), 
 
 143. 
 Tremper v. Barton (18 Ohio, 418)f 
 
 240. 
 Trenton Ins. Co v. Johnson (4 Zabr. 
 
 676), 301. 
 Trevidlck v. Mumford (31 Mich. 
 
 470), 196. 
 Trevor ». Wood (36 N. T. 306), 38, 
 
 39. 
 Trichie, Succession of (_29 La. An. 
 
 384), 284. 
 
TABLE OF CASES CITED. 
 
 Keferences are 
 
 TrickelB. Myers (18 La. An. 667) 
 
 284. 
 Tricknor v. McClelland (84 111 
 
 471), 104, 238. 
 Trieber v. Andrews (31 Ark. 163) 
 
 228. 
 TrigK V. Faris (5 Humph. 343) 
 
 186. 
 Trimmier v. Thomson ^10 S. C- 
 
 164), 182. 
 Tripp V. Armltage (4 M. & W. 687) 
 
 87. 
 V. Barton (13 E. I. 130), 282 
 
 283. 
 V. Brownell (12 Cush. 376) 
 
 231. 
 TrissD. Child (21 Wall. 441), 299. 
 Tristv. Child (21 Wall. 441), 272. 
 Tntipo V. Edwards (35 Ind. 467) 
 
 221, 247. 
 Twolwert v. Decker (51 Wis. 46) 
 
 290, 293, 308. 
 Troughton v. Johnson (2 Hayw 
 
 28), 165. 
 Troup V. Wood (4 Johns. Ch. 228) 
 
 169. 
 Trouson v. Denf (8 Moo. P.O. 419) 
 
 275. 
 Trott V. Irish (1 Allen, 481), 290. 
 Trout V. Kennedy (47 Pa. St. 393 1 
 
 333. 
 Trowbridge v. Holcomb (4 Ohio 
 
 St. 38), 150. 
 Trucks V. Lindsay (18 Iowa, 604) 
 
 204, 224. 
 Trudo V. Anderson (10 Mich. 357) 
 
 317, 324. 
 Trueblood v. Trueblood (8 Ind 
 
 195), 18. 
 Trull V. Bigelow (16 Mass. 406) 
 
 329. 
 V. Skinner (17 Pick. 216), 224 
 V. Trull (13 Allen, 407), 277. 
 Trnllinger ®. Kofold (7 Ore. 228) 
 
 162. 
 
 to Sections. 
 
 Truman v. Hardin (6 Sawy. 115), 
 
 325. 
 V. Loder (11 A. &. B. 687), 73, 
 
 74. 
 Trust V. De La Plaine (3 E. D. 
 
 Smith 219), 166, 169. 
 Trustees v. Snell (19 111. 156), 260. 
 Trustees Book Academy v. George 
 
 (14 W. Va. 411; 36 Am. 
 
 Rep. 760), 252. 
 Trustees Union College (Wheeler, 
 
 61 N. Y. 88), 245. 
 Tryon 'v. Whltmarsh (1 Met. 1), 
 
 160. 
 Tucker v. Mowery (12 Mich. 378), 
 
 293. 
 c;. Tilton (55 N. H. 223), 240. 
 u. West (29 Ark. 386), 290, 293, 
 
 308. 
 u. WUson (1 P. Wms. 261), 
 
 274, 316. 
 V. Woods (12 Johns. 190), 33. 
 Tuentes v. Montis (L. E. 8 C. P. 
 
 268), 317. 
 Tuffts V. Mottashed (29 Up. Can. 
 
 C. P. 539), 324, 325. 
 Tufts V. Plymouth Gold Mining 
 
 Co. (14 Allen, 407), 74, 
 
 75. 
 Tulford V. Johnson (15 Ala. 384), 
 
 146. 
 Tull V. David (45 Mo. 444), 78. 
 TuUett V. Armstrong (4 My . & Car 
 
 377), 30. 
 Tunno v. Eobert (16 Fla. 138), 209. 
 Tunot). Fludd (1 McC. 121), 187. 
 Tapper v. Caldwell (12 Met. 659), 
 
 17. 
 Turkey v. Smith (18 Me. 125), 258. 
 Turley v. Bates (2 Hurl. & C. 200), 
 
 83, 87, 205. 
 Turman v. Trifts (8 Jones & S. 
 
 284), 158. 
 Turner v. Coolidge (2 Met. 350),. 
 
 104. 
 
 719 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Turner s.Gaither (83 M. C. 357), 19. 
 ». Harvey (Jacobs, 178), 171. 
 V. Higgins(14 Ark. 21), 159, 187. 
 V. Kerr (44 Mo. 429), 204, 224. 
 V. Killain (12 Neb. 680), 234, 
 
 240. 
 V. Langdon (112 Mass. 265), 
 
 94, 194. 
 V. Liverpool Dock Trustees 
 
 (6 Ex. 643), 85. 
 V. McFee (61 Ala. 468), 233, 
 
 234, 239. 
 V. Moore (3 Atl. Kep. (Vt ) 
 
 467), 85. 
 V. Machlow (8 Jur. (n. s.) 
 
 870), 187. 
 V. Rusk (52 Md. 65), 21, 24. 
 V. Trustees Liverpool Docks 
 (6 Ex. 543; 20 L. J. Ex. 
 394), 133. 
 V. Vaughan (2 Wiils. 339), 305. 
 Turnlpseed v. Cuaninghain (16 
 
 Ala. 601) 204, 224. 
 Tuthill V. Babcock (2 Wood & M. 
 
 298), 167. 
 Tuttle V. Brown (4 Gray, 467), 193. 
 V. Holland (43 Vt. 542), 290, 
 291, 294. 
 Tuxworth V. Moore (9 Pick. 347), 
 69, 104, 105. 
 V. ■Willard(9 Pick. 347), 106. 
 Twell V. Gatevyood (2 Scam. (111.) 
 
 196. 
 Tv7inam v. Swart (4 Lans. 263), 
 
 324. 
 Twitchell v. McMurtrie (77 Pa. St. 
 
 383), 245. 
 Twyne's Case (3 Coke, 80), 174. 
 Tye II. Finmore (3 Camp. 462), 196. 
 Tyers v. Rosedale, &c., Iron Co. 
 (L. R. 10 Ex. 195), 103. 
 V. Rosedale, &c., Co. (L. R. 8 
 Ex. Ch. 305), 335. 
 Tyler v. Borrows (6 Boberts, 104), 
 51. 
 720 
 
 Tyler v. Freeman (3 Cush. 261), 85. 
 V. Strand (21 Barb. 198), 87, 
 
 223, 228, 238, 239. 
 Tynes v. Grlmstead (1 Tenn. Ch. 
 
 608), 270. 
 Tyree v. "Williams (3 Bibb, 386), 
 
 286. 
 V. Wilson (9 Gratt. 59) 258. 
 Tyrrel v. Mbrris (1 Dev. & B. Eq. 
 
 659), 259,277. 
 Tyrrell v. Morris (1 N. C. 559), 277. 
 
 U. 
 
 Udell V. Atherton (7 H. & N. 172). 
 
 173. 
 XJhler V. Semple (20 N. J. Eq. 288), 
 
 168. 
 Uhlick«, Muhlke (61 111. 499), 270. 
 Ullman v. Barnard (7 Gray, 554), 
 
 317. 
 Ullman v. Kent (60 HI. 271), 334. 
 Underbill v. Boom Co. (40 Mich. 
 660), 84, 87. 
 V. Saratoga, etc., R. R. Co. (20 
 Barb. 455), 200. 
 Underwood ®. Farmers', etc., Ins. 
 Co. (57 N. Y. 306), 98. 
 V. Robertson (4 Camp. 138), 
 275. 
 United States v. Bank (8 Rob, (La.) 
 262), 175. 
 V. Behan (110 U. S. 338), 336.. 
 ». Drennen (Hemp. (U. S.) 
 
 320), 265. 
 V. Conyngham (4 Dall. 358), 
 
 84a. 
 V. Howe (3 Cranch. 73), 84a. 
 V. Hooe (3 Cranch. 73), 234. 
 V. January (7 Cranch. 572), 152. 
 V. Kirkpatrick (9 Wheat. 720), 
 152. 
 United States Life Ins. Co. v. Ad- 
 vance Co. (80 111. 549), 
 273. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 United States v. Morgan (11 How. 
 
 154), U9. 
 
 ». Peck (102 U. S. 64), 218. 
 
 V. Speed (8 Wall. 77), 336. 
 
 . V. Sturges (1 Paine, 125), 234. 
 
 U. S. Wind Engine Co. v. Oliver 
 
 (16 Neb. 612), 130, 133. 
 United States v. Wittig (2 Low, 
 
 466), 12. 
 United States Mortgage Co. v. 
 Sperry (24 Fed. Bep. 
 838), 253. 
 Union Bank v. Laird (2 Wheat. 
 390), 319. 
 V. Smiser (1 Sneed, 601), 144. 
 Union, etc., E. E. Co. v. Yeager 
 
 (34 Ind. 1), 323. 
 Union Nat. Bank v. Carr (IS Fed. 
 
 Eep. 438), 302. 
 University of North Carolina v. N. 
 C. E. E. Co. (76 N. C. 
 103; 22 Am. Eep. 671), 
 252. 
 Upham ». Dodd (24 Ark. 645), 88. 
 V. LeFavor (11 Met. 174), 152. 
 Upton V, Holmes (51 Conn. 500), 
 84, 87. 
 V. Sturbridge Cotton Mills (HI 
 
 Mass. 446), 86, 93, 217. 
 V. Suffolk Co. Mills (11 Cush. 
 
 586), 183, 269, 273. 
 V. Trelbilcock (91 U. S. SO), 
 158. 
 Urquhart v. Mclver (4 Johns. 103) , 
 
 273. 
 Utley V. Donaldson (94 U. S. 29), 
 33. 
 V. Smith (24 Conn. 290, 314), 
 234. 
 
 T. 
 
 Vail ». Foster (4 N. Y. 313), 144. 
 V. Strong (10 Vt. 457), 180, 12. 
 V. Thomas (4 N. Y. 312), 144. 
 
 Valentine v. Washington (33 Ark. 
 
 795), 222. 
 Valpey v. Gibson (4 C. B. 837), 17, 
 
 76. 
 Van Allen v. Illinois Cent. E. E. 
 
 Co. (7BOSW. 515),335. 
 V. Vanderpool (6 Johns. 70), 
 
 273. 
 Van Blunt v. Pike (4 Gill, 270), 105. 
 Van Bracklin v. Fonda (12 Johns. 
 
 468), 191. 
 Van Burnt v. Pike (4 GUI, 270), 
 
 104. 
 Van Brunt v. Wakelee (11 Mich. 
 
 177), 247. 
 Van Buskirk v. Hartford F. Ins. 
 
 Co. (14 Conn. 583), 239. 
 Van Casteel v. Booker (2 Ex. 691). 
 
 85, 128, 133. 
 Van Bppa v. Dlllaye (5 Barb. 244), 
 
 147. 
 Van Epps v. Harrison (5 Hill, 63), 
 
 158, 166, 172. 
 Van Eps v. Schenectady (12 Johns. 
 
 436), 61. 
 Vandervere v. Baker (13 Pa. St. 
 
 226), 256. 
 Van Dusen v. Sweet (61 N.Y. 378), 
 
 21. 
 Vandewalker v. Osmer (65 Barb. 
 
 556), 195. 
 Van Duzon v. Allen (90 111. 499), 
 
 206, 326, 327. 
 Van Heusen v. Eapcliffe (17 N. Y. 
 
 680), 233. 
 Van Hoozer v. Cory (34 Barb. 9), 
 
 62, 231. 
 Van Horn v. Eucker (33 Mo. 391), 
 
 334. 
 Vanhorne's Lessee v. Dorrance (2 
 
 Ball. 317), 218. 
 VanKleech v. Leroy (37 Barb. 
 
 644), 168. 
 Van Lieuw v. Johnson (4 Hua, 
 416), 163. 
 46 721 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Van Marter v. Babcock (23 Barb. 
 
 633), 303. 
 Vanmeters. Estill (78 Ky. 456), 
 
 81a. 
 D.McFadden (8 B. Mon. 436), 
 
 239. 
 ». Vanmeter (3 Gratt. 148), 
 
 234. 
 Van Neste v. Conover (20 Barb. 
 
 647), 168. 
 Van Ostrand v. Keed (1 "Wend. 
 
 424), 196. 
 Van Patton v. Seals (46 Iowa, 63) , 
 
 22. 
 Van Patten v. Burr (52 Iowa, 618), 
 
 175. 
 V. Leonard (66 Iowa, 520), 233. 
 Van Patton v. Marks (46 Iowa, 63), 
 
 23. 
 Van Rensselaer!;. Eoberts (5 Denio, 
 
 470), 152. 
 Van Rensselaer's Exrs. v. Roberts 
 
 (6 Den. 570), 162. 
 Van Eosson v. Walker (11 Barb. 
 
 237), 176. 
 Van Slyck v. Newton (10 Hun, 
 
 554), 234. 
 Van Wren v. Flynn (34 La. An. 
 
 1158), 216. 
 Van Wyck v. Seward (6 Paige, 62) • 
 
 174. 
 Vance v. Wells (8 Ala. 399), 27. 
 Vane D. Eigdon (L. R. 5 Ch. 663), 
 
 277. 
 Vandenbnrgh v. Spooner (L. R. 1 
 
 Ex.316; 36 L. J. Ex. 
 
 201), 76. 
 Vansselaer v. Ball (19 N. Y. 100), 
 
 200. 
 Vantrees v. Hyatt (6 Ind. 487), 
 
 169. 
 Varner v. Nobleborough (2 Greenl. 
 
 124), 144. 
 Varney v. Hawes (68 Me. 442), 
 234. 
 722 
 
 Varnum ®. Camp (1 Greenl. 326), 
 
 176. 
 Vassar v. Camp (11 N. Y. 441), 139. 
 V. Buxton (86 N. C. 336), 206, 
 325. 
 Vanghan v. Hopson (10 Bush. 337), 
 206, 326. 
 V. Thompson (17 111. 78), 174. 
 Vawterst;. Griffin (40 Ind. 600), 
 
 69. 
 Veasey o. Dayton (3 Allen, 381), 
 
 166. 
 Veazie v. Bangor (53 Me. 50), 213. 
 0. Hosmer (11 Gray, 396), 209. 
 V. Somerby (6 Allen, 280), 84a, 
 
 104, 233. 
 V. Williams (3 Story, 622 ; s. c. 
 8 How. 134), 165, 173, 
 263. 
 Ventress v. Smith (10 Pet. 161, 
 
 175), 310, 311. 
 Venus, The (8 Cranch, 275), 84. 
 Verkamp v. Hubbard Co. (58 Cal. 
 229; 41 Am. Rep. 265), 
 103. 
 Vemede v. Weber (1 H. & N. 311 ; 
 38 Eng. L. & E. 277), 
 214. 
 Vernon v. Keys (12 East, 637), 
 
 162, 166, 171. 
 Verplauck v. Sterry (12 Johns. 
 
 562), 174. 
 Vesey v. Dalton (3 AUen, 380)» 
 
 158. 
 Vibbard u. Johnson (19 Johns. 78), 
 
 186. 
 Vickers ii. Vickers (4 Eq. 529), 46, 
 
 56. 
 Victor V. Henlein (33 Hun, 549), 
 168. 
 V. Eheinschild (25 Kan. 534), 
 183, 269. 
 Victor S. M. Co. •». Heller (44 Wis. 
 
 265). 
 Viele ». Osgood (8 Barb. 130), 77. 
 
TABLE OF CASES CITED. 
 
 Beferences are to Sections. 
 
 Vigers v. Pike (8 CI. & F. 650), 
 
 167. 
 Violett V. Patton (6 Cranch. 142), 
 
 76. 
 Vincent w. Connell (13 Pick 294), 
 
 326. 
 V. Groom (1 Yerg. 430), 296. 
 V. Leland (100 Mass. 432), 181. 
 Vinlng V. Bricken (14 Ohio St. 
 
 331), 306. 
 Vinning v. Gilbretli (39 Me. 496), 
 
 84a, 105. 
 Vlnz V. Beatty (61 Wis. 645), 290, 
 
 293, 308. 
 VUenboom v. Chapman (13 M. & 
 
 W. 239), 275. 
 Vogel V. Osborne (32 Minn, 173), 
 
 183. 
 Volney Stamps v. Oilman (43 Miss. 
 
 466), 221, 248. 
 VonHuster v. Spengemad (17 N. 
 
 J. Eq. 185), 270. 
 VonWindlsh v. Klaus (46 Conn. 
 
 433), 296. 
 Vorebeck v. Eowe (50 Barb. 302), 
 
 69. 
 Voorhees v. DeMeyer (2 Barb. 37), 
 
 98. 
 0. Earl (2 Hill. 292), 163. 
 V. McGinnis (48 N. Y. 278, 
 
 287), 230. 
 Voss V. Stickney (19 Minn. 367), 
 
 84a. 
 u. McGuire (18 Mo. App. 477), 
 
 188. 
 V. Robertson (46 Ala. 483), 273, 
 
 323. 
 Vyse V. Wakefield (6 M. & W. 442), 
 
 211. 
 
 W. 
 
 Wabash Elevator Co. v. First 
 Nat. Bank (23 Ohio St. 
 311), 86, 161. 
 
 Waddington i). Bristow (2 B. & P. 
 452), 69. 
 u. Oliver (2 Bos. & P. N. E. 61), 
 101. 
 Wadlington u. Covert (61 Miss. 
 
 631), 144. 
 Wade V. Haycock (1 Casey (Pa.) 
 382), 209. 
 V. Moffltt (21 111. 110), 74 Am. 
 Dec. 79), 84, 94, 104, 
 333. 
 Wade's Case (5 Eep. 115), 221. 
 Wado V. Belcher (11 Ired. 609), 88. 
 Wadsworth v. Haven (3 Wend. 
 412), 174. 
 V. Sharpsteen (4 Seld. 388), 21, 
 
 253. 
 B. Thompson (8 III. 423), 274. 
 B. Williams (100 Mass. 126), 
 174. 
 Wafer v. Mocato (9 Mod. 112), 219. 
 Wagner v. Watts (2 Cranch C. C. 
 
 169), 231, 233. 
 Wagstaff ». Smith (9 Ves. 600), 30. 
 Wailing v. Toll (9 Johns. 141), 17. 
 Wain V. Warlters (5 East, 107), 76. 
 Wainwright v. Bead (1 Oesau. 
 673), 284. 
 V. Webster (11 Vt. 576), 149. 
 Wait V. Green (36 N. Y. 556), 325. 
 ■o. Scott (6 Grant (Ont.), 154), 
 134. 
 Waitew. Baker (2 Ex. 1), 85, 95. 
 y. Brewster (31 Vt. 616), 144. 
 V. Delesdernier (16 Mo. 144), 
 
 142. 
 V. Dennison (51 111. 319), 247, 
 248, 260. 
 Wakefield v. Gowie (5 Up. Can. Q. 
 B. 159), 332. 
 V. Lithgow (3 Mass. 249), 164. 
 Wakeman v. Grover (4 Paige Ch. 
 
 23),175. 
 Walbridge v. Arnold (21 Codti. 
 426), 296. 
 
 723 
 
TABLE OF CASES CITED, 
 
 References are to Sections. 
 
 Walcott V. Heath (78 111. 433), 302. 
 Walde V. Belcher (II Ired. 609), 
 
 82. 
 Walden ». Murdock (23 Cal. 633), 
 
 106. 
 Waldron v. Chase (37 Me. 414), 88. 
 V. Eomanle (22 N. Y. 368), 89. 
 Walker v. Bank of Mobile (6 Ala. 
 
 452), 245. 
 V. Blake (37 Me. 373), 5, 213. 
 V. Boulton (3 Up. Can. Q. B. 
 
 (o. 8.) 252), 67. 
 V. Buttrick (105 Mass. 237), 8. 
 0. Clay (42 L. T. (n. s.) 369, 
 
 s. c. 49 L. J. E. 660). 
 
 243. 
 V. Collier (37 HI. 362) 840. 
 V. Constable (1 B. & P. 306), 
 
 78. 
 ■o. Craig (18 111. 116), 277. 
 V. Gooch (10 Bliss. 169, 163), 
 
 334. 
 V. Henry (85 N. Y. 130), 234. 
 V. Herring (21 Gratt. 678), 286 
 V. Hoisington (43 Vt. 608), 194. 
 V. Hyman (1 Ont. App. 345), 
 
 325. 
 V. Lovell (28 N. H. 188), 61, 
 
 292. 
 e. Moore (10 Barn. & C. 421), 
 
 163. 
 V. Nnssey (16 M. & W. 302), 
 
 71. 
 V. Orange (16 Gray, 193), 213. 
 V. Paine (31 Barb. 213), 234. 
 V. Pue (57 Md. 155), 187, 190. 
 o. Snediker (1 Hoff. Ch. 146), 
 
 234. 
 V. Staples (6 Allen, 34), 4, 223. 
 V. Supple (54 Ga. 178), 69. 
 V. Vaughan (33 Conn. 577), 51. 
 V. Walker (5 Heisk. 425), 268, 
 
 372. 
 Walklns v. Paine (67 Ga. 50), II5- 
 Wall V. Lakin (13 Met. 167), 175. 
 724 
 
 Wallace v. Breeds (13 Bast, 522), 
 87, 88. 
 V. Costan (9 Watts, 137), 30. 
 o. Frazier (2 Nott & McC. 616), 
 
 196. 
 V. Hardacre (I Camp. 45), 296. 
 V. Holmes (9 Blatchf. 67), 263. 
 V. Lark (12 S. C. 678), 294. 
 V. Lewis ( 4 Harr, (Del.) 75), 
 
 18. 
 V. Morse (5 Hill, 391), IfiS. 
 V. Rogers (2 N. H. 606), 196. 
 Wallard v. Worthman (84 III. 446), 
 
 246. 
 Wallen v. Rossman (46 Mich. 333), 
 
 238, 239. 
 Waller v. Lacy (Man. & G. 64), 152. 
 Walley v. Montgomery (3 East, 585) , 
 322, 323. 
 ■0. Small (25 Iowa, 184), 239. 
 Walpole o. Saunders (16 B. C. L. R. 
 
 276), 301. 
 Walrath v. Ingles (64 Barb. 265), 71. 
 V. Ritche (5 Lans. 362), 71. 
 V. Barton (24 Ohio St. 28), 165. 
 V. Blakely (9Pac. Rep. (Mont.) 
 
 809), 127, 130, 135. 
 V. Lennon (98 111. 27) 144. 
 V. Taylor (39 Md. 692), 206, 216. 
 Walter v. Gement (13 Pa. St. 515), 
 840. 
 V. Road (2 Wash. C. C. 283), 
 214, 125, 134. 
 Walthero.Wetmore (1 B.D. Smith, 
 
 7), 273. 
 Walton V. Bemlse (16 La. 140), 144. 
 1). Bonham (24 Ala. 513), 174. 
 ■u. Harris (73 Mo. 489), 260. 
 Wambole v. Foote (2 Dak. 1), 18. 
 Wanless v. McCandless (38 Iowa, 
 
 20), 272. 
 Wanser v. Messier (29 N. J.L. 266), 
 
 186, 186. 
 Waples V. Hastings (3 Harr. 403), 
 18. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Ward V. Bourne (66 Me. 161), 144. 
 D.Brandt (11 Martin (La.),311), 
 
 271. 
 V. Byrne (4 M. & W. 548), 303- 
 V. Carsau Eiver Wood Co. (13 
 
 Neb. 44), 324. 
 V. Deering (4 Mou. 44) 204, 224, 
 
 228. 
 u. HobbS (2 Q. B. D. 331 ; s. c. 
 
 L. E. 3 Q. B. D. 150), 
 
 167. 
 V. Shaw (7 Wend. 404), 82, 87. 
 V. Smith (7 Wall. 447) 140. 
 V. The Little Bed (8 Mo. 358 ), 
 
 18. 
 V. Weman (17 Wend. 193), 
 
 164. 
 WardeU v. Fosdick (13 Johns. 325), 
 
 180. 
 Warden v. Marshall (99 Mass. 305), 
 
 96, 104. 
 Warders. Bowen (31 Minn. 336), 
 
 193. 
 
 V. Hoover (61 Iowa, 491), 207. 
 
 Ware v. Bradford (2 Ala. 676), 260. 
 
 V. Currey (67 Ala. 274), 61. 
 
 V. Street (2 Head, 609), 149. 
 
 Ware Eiver E. E. Co. v. Vibbard 
 
 (114 Mass. 447), 119. 
 Waring v. Mason (18 Wend. 425), 
 
 188, 272. 
 Warlow V. Harrison (25 L. J. Q. B. 
 
 14), 285. 
 0. Harrison (28 L. J. Q. B. 18), 
 
 286, 288. 
 V. Harrison (29 L. J. Q. B. 14;, 
 
 166, 282. 
 Warner v. Beebe (47 Mich. 436), 
 
 241. 
 V. Bennett (31 Conn. 478), 219. 
 V. Brooks (14 Gray, 107), 234. 
 V. Daniels (1 Wood & M. 90), 
 
 167. 
 V. Martin (11 How. 209), 317. 
 I'. Norton (29 How. 448), 84a. 
 
 Warren v. Buckmister (24 N. H. 
 337), 88. 
 I. Chapman (105 Mass. 87), 
 
 292. 
 V. Emerson (1 Curtis, 239), 223. 
 V. Franklin Ins. Co. (104 Mass. 
 518), 143. 
 Warren Glass Work Co. v. Key- 
 stone Coal Co. (66 Md. 
 647), 187, 190. 
 Warren v. Leland (2 Burb. 613), 59. 
 V. Leland (9 Mass. 265), 265. 
 V. Lovis (53 Me. 463), 204, 227. 
 V. Mains (7 Johns. 476), 140. 
 V. Martin (11 How. 209), 317. 
 V. Milliken (67 Me. 97), 69. 
 V. PhUadelphia Coal Co. (83 Pa 
 
 St. 437), 187, 193. 
 V. Tyler (81 111. 16), 163. 
 Warriner v. The People (74 III. 
 
 346), 146. 
 Wart V. Scott (6 Grant (Ont.), 164), 
 126. 
 V. Woolley (3 B. & C. 439), 
 144. 
 Warte v. Baker (2 Ex. 1), 122. 
 Wartman v. Breed (117 Mass. 18), 
 
 5. 
 Warwick v. Bruce (2 M. & S. 206), 
 
 17, 18. 
 Washband v. Washband (27Conn. 
 
 424), 174. 
 Washburn v. Cuddihy (8 Gray, 
 430), 194. 
 ». Fletcher (42 Wis. 152), 39. 
 V. Merrills (1 Day, 139), 228. 
 V. Pond (2 Allen, 474), 274, 316. 
 Washburn Iron Co. v. Eussell (130 
 
 Mass. 543), 84, 113. 
 Washington Ice Co. v. Webster 
 (62 Me. 341), 63. 
 V. Webster (68 Me. 463), 333. 
 Washington v. Johnson (7 Humph. 
 468), 6, 213. 
 V. Love (34 Ark. 93), 233. 
 725 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Wason ». Eowe (16 Vt. 625), 194. 
 Waterbury v. Eussell (8 Baxt. 159), 
 
 180. 
 Waterhouse v. Dorr (4 Me. 333), 
 
 281. 
 Watterman.o. Meigs (4 Cush. 497), 
 
 66, 68, 76. 
 Waterman v. Spaulding (51 111. 
 
 425), 284. 
 Waters v. Bean (15 Ga. 368), 27. 
 V. Bleden (70 Pa. St. 236), 200. 
 B. Butterick (105 Mass. 237), 
 
 203. 
 u. Comely (3 Har. 117), 175. 
 V. Cox (12 Bradw. 129), 230. 
 Waters Heater Co. v Mansfield (48 
 
 Vt. 378), 116, 213. 
 Waters Pat. Heater Co. v. Smith 
 
 (120 Mass. 444), 163. 
 Waters D.Randall (6 Met. 479), 204. 
 
 V. Tazewell (9 Md. 291), 30. 
 WatkinsB. Birch (4 Taunt. 328), 
 84a. 
 V. Consall (1 L. D. Smith, 419, 
 
 272. 
 V. Halstead (2 Sandf. 311), 
 
 27), 27. 
 V. Gregory (6Blackf. 113), 224. 
 V. Wyatt (9 Baxt. 250), 52, 
 231. 
 Watson, Ex parte (L. R. 5 Ch. D. 
 35), 130. 
 V. Fetcher (8 B. & C. 26), 298. 
 V. Garren (6 Up. Can. Q. B. 
 
 542), 211. 
 i;. Hensel (7 Watts, 344), 17. 
 V. James (15 La. An. 386), 228. 
 V. Owens (1 Rich L. Ill), 144. 
 V. Rogers (53 Cal. 401), 84a. 
 V. Spratley (10 Ex. 122), 59. 
 V. Taylor (21 Wall. 378), 240. 
 V. Walker (23 N. H. 491), 211. 
 V. Williams (4 Blackf. 26), 84a. 
 Watson's Admr. v. VIolett (2 Dur. 
 332), 267. 
 726 
 
 Watts V. Ainsworth (1 H. & C. 83), 
 34. 
 V. Cummings (59 Pa. St. 84), 
 
 166, 172. 
 
 V. Friend (20 B. & C. 446), 61. 
 
 V. Hendry (13 Fla. 523), 88. 
 
 V. Hoch (25 Pa. St. 411), 152. 
 
 Way i;. Wakefield (7 Vt. 228), 12. 
 
 Waydell v. Luer (5 Hill, 44), 144. 
 
 V. Velie (Bradf. 277), 154. 
 Wayne's v. Merthyr Steamer Co. v. 
 Moorewood (47 L. J. Q. 
 B. 746,749), 332. 
 Weadner v. Phillips (39 Hun, 1), 
 
 166. 
 Weakley v. Reller (9 Watts, 273), 
 
 144. 
 Weatherby v. Covington (3 Strobh. 
 
 27), 256. 
 Weatherford v. Fishback (3 Scam. 
 
 (111.) 170), 162. 
 Weave v. Braden (49 N. Y. 286), 
 
 329. 
 Weaver v. Gayer (59 Ind. 195), 262. 
 Weaver, In re (21 Ch. D. 615), 23. 
 V. Beilly (21 Hun, 685), 238. 
 V. Wallace (9 N. J. L. 251), 
 162. 
 Webb V. Fairmanner (3 M. & W. 
 473), 99. 
 ■u. Haselton (4 Neb. 308), 245. 
 V. Odell (49 N. Y. 681), 36. 
 V. Smith (4 Bing. (N. C.) 373), 
 298. 
 Webber v. Donnelly (33 Mich. 
 469), 294. 
 V. Emnierson (3 Col. 248), 250. 
 Weber v. Armstrong (70 Mo. 217), 
 
 84a. 
 Webster v. Anderson (42 Mich. 
 564; 36 Am. Rep. 452), 
 104. 
 V. Bailey (40 Mich. 641), 84a. 
 V. Granger (78 111. 230), 106, 
 188. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Webster o. Hunger (8 Gray, 684), 
 294. 
 V. Peck (31 Conn. 485), 84a. 
 V. "Woodford (3 Day, 90), 21. 
 V. Zielly (52 Barb. 482), 71. 
 Weddlgen v. Boston Electric, etc., 
 Co. (100 Mass. 422), 145. 
 Weed V. Boston Ice Co. (12 Allen, 
 377), 88. 
 V. Stanley (12 Fla. 166), 222. 
 Weeks v. Burton (7 Vt. 67), 160. 
 V. Mailiardet (14 East, 568), 
 
 233. 
 V. Pike (60 N. Y. 447), 206, 
 
 325. 
 V. Prescott (53 Vt. 57), 84a. 
 V. Eoble (42 N. H. 316), 163. 
 V. Wood (2 Alk. 64), 84a. 
 Weide v. Gehl (21 Minn. 449), 228. 
 Weldlerc. Farmers Bank (11 Serg. 
 
 & R. 86), 282. 
 Weimeru. Clement (37 Pa. St. 147), 
 187. 
 11. Clement (1 Wright, 147), 188. 
 Weir V. Bell (L. K. 3 Ex. D. 238), 
 
 160, 173. 
 Weist V. Grant (71 Pa. St. 96), 
 
 162. 
 Weir Plow Co. v. Porter (82 Mo. 
 
 23), 8. 
 Welch V. AUington (23 Cal. 322), 
 144. 
 V. Louis (81 111. 446), 284. 
 V. Sackett (12 Wis. 243), 237, 
 241. 
 Weld V. Canae (98 Mass. 152), 69, 
 96. 
 V. Cane (98 Mass. 152), 84, 94. 
 V. Cutler (2 Gray, 196), 82, 87, 
 
 88. 
 V. Cutter (2 Gray, 196), 238. 
 V. Golden (6 N. E. Rep. 229), 
 308. 
 Welford v. Chancellor (6 Gratt. 
 39), 270. 
 
 Wells ». Abernethy (5 Conn. 227), 
 335. 
 V. Calnan (107 Mass. 514), 218. 
 V. Chapman (59 Iowa, 658), 241. 
 V. Day (124 Mass. 38) 61. 
 V. Porter (3 Scott, 141), 302. 
 V. Raglan (1 Swan, 501), 314, 
 
 324. 
 
 V. Smith (2 Ont. App. 8), 115. 
 
 V. Spears (1 McCord, 421), 182- 
 
 V. Wells (30 La. An. Pt. II, 
 
 985), 277. 
 
 Welmet o. Mississquoi Lime Co. 
 
 (46 Vt. 458), 144. 
 
 Welsh B. Bell (32 Pa. St. 12), 121. 
 
 V. Carter (1 Wend, 185), 187. 
 
 V. Gossler (89 N. Y. 640), 208, 
 
 209. 
 
 Welshbilllg v. Diershart (65 Ind. 
 
 94), 158. 
 Wemple v. Stewart (22 Barb. 154), 
 
 335. 
 Wendell v. N. H. Bank (9 N. H. 
 
 404, 420), 247. 
 Wendt B, Ross (33 Cal. 660), 152. 
 Wenger v. Bernhardt (66 Pa. St. 
 
 300), 130. 
 Wentworth v. Outhwaite (10 M. & 
 
 W. 436), 122. 
 Werner's Appeal (10 Morris, Pa. 
 
 222), 17. 
 Werner c. Bergman (28 Kan. 60), 
 
 241. 
 Werner, In re (5 Dill. 109), 240. 
 West V. Crary (47 N. Y. 423), 246, 
 
 247. 
 West V. Canningham (9 Port. 104), 
 
 187, 334. 
 West V. Hendrix (28 Ala. 226), 204, 
 
 224. 
 West Jersey R. R. Co. v. Trenton 
 Com. Works (32 N. J. L. 
 617), 205. 
 West i;. Penney (16 Ala. 186), 18, 
 19. 
 
 727 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 West V. Pritchard (19 Conn. 216), 
 
 336. 
 West Hepublic Mfg. Co. v. Jones 
 
 (108 Pa. St. 65), 193, 
 
 West V. Bnssell (48 Mich. 74), 21. 
 
 V. Snodgrass (17 Ala. 549), 175. 
 
 V. Wentworth (3 Cow. 82), 335. 
 
 'J. Wright (98 Ind. 335), 277. 
 
 West Branch Bank v. Moorehead 
 
 (5 Watts &L. 642), 152. 
 Wescott V. Gunn (4 Duer, 107), 234, 
 
 240. 
 Westcott V. Thompson (18 N. Y. 
 
 363), 6. 
 Western Bank v. Addle (L. K. 1 H. 
 
 L. C. 167), 163, 173. 
 Western v. Bear Eiver, etc., Co. (6 
 
 Cal. 425), 319. 
 West Transp. Co. v. Marshall (4 
 
 Abbs. N. Y. App. 575), 
 
 93. 
 Western Union E. E. Co. v. Wagner 
 
 (65 111. 197), 317. 
 Western Union Tel. Co. v. Burling- 
 ton, etc. E. E. Co. (11 
 
 Fed. Eep. 1), 230. 
 Westfall V. Braley (10 Ohio St. 188), 
 
 149. 
 Westropp V. Solomon (9 C. B. 345), 
 
 216. 
 Wetherell v. Joy f40 Me. 325), 152. 
 
 V. Spencer (3 Mich. 123), 240. 
 Wetherill v. Neilson (20 Pa. St. 
 
 448), 188, 189, 192. 
 Wethersby v. Wethersby (40 Miss. 
 
 462), 224. 
 Wetscott V. Ains worth (9 Hun, 53), 
 
 160. 
 Weyer v. Second Nat. Bank (57 Ind. 
 
 198), 277. 
 Whale V. Booth (.4 T. R. 625), 277. 
 Wharf V. Roberts (88 111. 426), 160. 
 Wharton v. Moragne (62 Ala. 201). 
 
 277. 
 Wheat V. Cross (31 Md. 99), 36, 39. 
 728 
 
 Wheaton v. Baker (14 Barb. 494) 
 
 163. 
 Whedber v. Stewart (4 Md. 414), 
 
 175. 
 Wheelden v. Wilson (44 Me. 1), 
 233. 
 V. Bailey (13 Johns. 366), 298. 
 V. Collier (Moody & M. 123), 
 
 166. 
 V. Friend (22 Tex. 683), 301. 
 V. Knaggs (8 Ohio, 169), 140. 
 V. Miller (2 Denio, 172), 246. 
 V. Newbold (16 N. Y. 392), 274. 
 V. NichoUs (32 Me. 233), 238. 
 V. Russell (17 Mass. 258), 306. 
 V. Schroeder (4 E. I. 383), 
 144. 
 Wheeler & Wilson Machine Co v. 
 Teetzlaff (53 Wis. 211), 
 324. 
 Wheeler v. Woodward (66 Pa. St. 
 
 168), 139. 
 Wheeler, etc., Co. v. Givan (66 Mo. 
 
 89), 269, 273. 
 Wheelhouser o. Parr (Mass. (1886), 
 
 6 N. E. Eep. 787), 95. 
 Wheelright v. Depuyster (1 Johns. 
 
 471), 310, 311, 314. 
 Whelan v. Couch (26 Grant (Ont.), 
 74), 210. 
 V. Lynch (65 Barb. 329; s. c. 
 
 60 N. Y. 469), 333. 
 V. McCreary (64 Ala. 319), 270. 
 Whelan v. Sullivan (102 Mass. 204), 
 
 33. 
 Whetstone ». Colley (36 111. 328), 
 
 143. 
 Whipple V. Dow (2 Mass. 415), 
 209. 
 V. Gilpatrick (19 Me. 427), 324, 
 325. 
 Whisler v. Foster (32 L. J. C. P. 
 
 545), 310. 
 Whistler v. Foster (14 C. B. (n. s.) 
 248), 310. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Whielero. Koberts (19 111. 274), 
 
 241. 
 Whittaker v. Ba*;wich (76 Pa. St. 
 
 229), 185, 187, 188. 
 V. Hulske (29 Tex. 365), 188. 
 ». Sumner (20 Pick. 406), 4, 
 
 105, 316. 
 Whltbeck v. Vernon (11 Johns. 
 
 409), 144. 
 WhitcombB. Denio (62 Vt. 382), 
 
 163. 
 V. Hungerford (42 Barb. 177), 
 
 93. 
 V. Whitney (24 Mich. 486), 84, 
 
 87. 
 V. Wood worth (64 Vt. 544), 
 
 9, 203, 325. 
 White V. Brown (12 Up. Can. Q. B. 
 
 477), 233. 
 V. Brownell (3 Abb. Pr. (n. s.) 
 
 378), 271. 
 V. Chouteau (10 Barb. 202), 
 
 273. 
 V. Cole (24 Wend. 116), 223. 
 V. Cox (2 Hayw. 79), 25. 
 V. Crew (16 6a. 416), 286, 287. 
 White Crow v. White King (3 Kan. 
 
 276), 169. 
 
 White ». Drew (56How.Pr. 57), 71. 
 
 White, Ex parte (L. R. 6 Ch. 897), 8. 
 
 White V. Foster (102 Mass. 375) , 59. 
 
 V. Fuller (67 Barb. 267), 272. 
 
 V. Garden (10 C. B. 919), 168, 
 
 327. 
 V. Howard (1 Sandf. 81), 146. 
 ». Kearney (14 La. Ann. 362), 
 
 334. 
 V. Kearney (9 Bob. (La.) 495, 
 
 501), 334. 
 V. McNett (38 N. Y. 371), 30. 
 V. Miller (71 N. Y. 118), 189 
 
 190, 336. 
 V. Miller (7 Hun, 427; s. c. 71 
 
 N. Y. 118; s. c. 78 N. Y. 
 
 393), 336. 
 
 White V. Mitchell (38 Mich. 390), 
 136. 
 V. Phelps (12 N. H. 382), 243. 
 V. Philbrick (6 Greenl. 152), 43. 
 V. Proctor (4 Taunt. 209), 78. 
 0. Salisbury (33 Mo. 160), 335. 
 V. Sawyer (16 Gray, 586), 173. 
 White, Succession (9 La. An. 232) 
 277. 
 V. Sutherland (64 lU. 181), 
 
 245. 
 V. Thomas (62 Miss. 49), 231. 
 V. Tompkins (62 Pa. St. 363), 
 
 335. 
 <;. Trumbull (3 Green (N. J.) 
 
 314), 152. 
 1!. Ward (26 Ark. 445), 270. 
 *. Watkins (23 Mo. 423), 286. 
 V. Welsh (38 Pa. St. 396). 119, 
 
 120. 
 V. Wheaton (3 Sedden, 362), 
 
 162. 
 V. Wilks (5 Taunt. 176), 88. 
 Whitefleld v. McLeod (2 Bay, 
 
 380), 187. 
 Whitehead o. Anderson (9 M. & 
 W. 518), 122, 130, 136, 
 476. 
 V. Boot (2 Met. (Ky.) 584), 58, 
 
 302. 
 0. Woodruff (11 Bush, 209), 
 175. 
 Whitehouse v. Frost (42 East, 
 
 614), 88. 
 Whitemarsh u. Walker (1 Met. 
 
 313), 59. 
 Whitenack v. Ten Eyck (2 Green 
 
 Ch. 242), 296. 
 Whitfield 0. Cates (6 Jones' Eq. 
 
 136), 228. 
 Whitewell v. Vincent (4 Pick. 
 
 449), 85. 
 Whiting V. Eichelberger (16 Iowa, 
 422), 222, 223. 
 V. Farrand (1 Conn. '60), 89, 95. 
 729 
 
TABLE OF CASES CITED. 
 
 References are 
 
 Whltlock V. Hay (.68 N. Y. 484), 
 
 122. 
 Whitman v. Conner (40 N. Y. Sup. 
 Ct. 339), 239. 
 V. rreese (23 Me. 212), 189. 
 V. Merrill (125 Mass. 127), 329. 
 Whitman Gold, &c.. Mining Co. v. 
 Tritle (4 Nev. 494), 313, 
 324. 
 Whitmore v. South Boston Iron Co. 
 (2 Allen, 52), 188, 196. 
 V. South Boston Ice Co. (2 
 
 Allen, 273), 190. 
 V. Woodward (28 Me. 391), 174. 
 Whitmork v. South Boston Iron Co. 
 
 (2 Allen, 52), 192. 
 
 Whitney v. Boardraan (118 Mass. 
 
 247), 167, 334. 
 
 V. Brunette (3 Wis. 621), 84a. 
 
 V. Dutch (14 Mass. 457), 18, 19. 
 
 V. Eaton (15 Gray, 225), 85, 
 
 217. 
 V. French (25 Vt. 663), 221, 227. 
 V. Heywood (5 Cush. 82), 239- 
 V. Haywood (6 Cush. 86), 185. 
 V. Lowell (33 Me. 318), 223. 
 V. Lynch (16 Vt. 579), 106. 
 V. McConnell (29 Mich. 12), 
 
 324. 
 D.McKinney (7 Johns. Ch. 144). 
 V. Sutton (10 Wend. 412), 193. 
 V. Taylor (54 Barb. 536) , 194. 
 Whiton V. Spring (74 N. Y. 173), 
 
 142. 
 Whitsides v. Cannon (23 Mo. 457), 
 
 30. 
 Whittaker, Ex parte (L. E. 10 Ch. 
 
 446), 170, 171. 
 
 Whittaker v. McCormick (6 Mo. 
 
 App. 114), 189. 
 
 V. Pope (48 Ga. 13), 152. 
 
 Whittinston v. Corder (16 Jur. 
 
 1034), 284. 
 Whittlesey v. McMahon (10 Conn. 
 r41), 174. 
 7.30 
 
 to Sections. 
 
 Whlttemore v. Gibbs (24 N. H. 
 
 484), 59. 
 Whitwell V. VincAt (4 Pick. 449), 
 
 87. 
 Whywall v. Champion (2 Stra. 
 
 1083), 17. 
 Wickham v. Martin (13 Gratt. 427), 
 
 327. 
 Wicks V. Mitchell (9 Kan. 80), 30. 
 Wldoe V. Webb (20 Ohio. St. 431), 
 
 292. 
 Wilner v. Whipple (53 Wis. 302), 
 
 73, 188. 
 Wiggans v. Chicago (68 111. 372), 
 
 281. 
 Wiggin V. Day (9 Gray, 97), 170, 
 329. 
 V. Goodrich (63 Me. 389), 196. 
 Wigglesworth v. Steers (1 Hen. & 
 
 M. 70), 25. 
 Wigton V. Rowley (130 Mass. 254), 
 
 83, 95. 
 Wilber ». Howe (49 Cal. 290), 270, 
 V. Howe (8 Johns. 444), 169. 
 V. Jemegan (11 R. I. 113), 144. 
 Wilcox V. Bates (26 Wis. 465), 
 228. 
 V. Hall (53 Ga. 635), 180. 
 V. Henderson (6 Ala. 535), 168. 
 V. Howard (51 Ga. 298), 188. 
 V. Jackson (57 Iowa, 208), 25. 
 V. Owens (64 Ga. 601), 190. 
 V. Roath (12 Conn. 559), 19. 
 Wilcox Silver Plate Co. v. Green 
 
 (72 N. Y. 17), 85, 96. 
 Wilde V. Rawlings (1 Head. 34), 
 
 175. 
 Wilder v. Weakley (34 Ind. 181), 
 
 22. 
 Wildman v. Eokenaker (20 Cal. 
 
 615), 230, 241. 
 
 Wilde V. Smith (2 Ont. App. 8), 130- 
 
 Wiley V. Howard (15 Ind. 169), 162. 
 
 V. Lashlee (8 Humph. 717), 84a. 
 
 V. Smith (1 Ont. App. 179). 130-, 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Wilhelm v. Schmidt (84 lU. 183), 
 
 144. 
 Wilkes V. Davis (3 Mer. 607), 46. 
 
 V. Ferris (5 Johns. 335), 105. 
 Wilkins v. Bromhead (6 M. & G. 
 963; a. c. 7 Scott N. K. 
 921), 89. 
 V. Eiley (47 Mich. 306), 292. 
 Wilkinson v. Charchill (114 Mass. 
 184), 272. 
 V. Evans (L. B. 1 C. P. 407), 
 
 76. 
 V. Holiday (33 Mich. 386), 205. 
 V. Ketler (96 Ala. 436), 52. 
 V. Holiday (33 Mich. 386), 83. 
 Willard v. Kandall (65 Me. 81), 166. 
 V. Stevens (24 N. H. 271), 194. 
 V. Stone (17 Cow. 22), 18. 
 Willette V. Winnelly (1 Vern. 488) ^ 
 
 221. 
 
 Williams v. Allsup (10 C. B. (n. 
 
 s.), 417), 244. 
 
 V. Angell (7 E. I. 152), 219. 
 
 V. Bacon (2 Gray, 387), 73. 
 
 V. Barlow (49 Ga. 630), 265. 
 
 Williamsoa v. Berry (6 How. 195), 
 
 258. 
 Williams v. Briggs (11 R. I. 476), 
 51,231, 232. 
 V. Carr (80 N. C.294), 3G2. 
 !)'. Connoway (3 Houst. 63), 
 
 326. 
 V. Carpenter (36 Ala. 9), 164. 
 V. Davis (47 Iowa, 363), 8. 
 V. Davis (69 Pa. St. 21), 174. 
 V. Evans (L. K.l Q. B. 342), 282. 
 V. Feineman (14 Kan. 288), 88. 
 V. Given (6 Gratt. 268), 168, 313, 
 
 323. 
 V. Godwin (4 Sneed, 657), 334. 
 V. Griffith (5 M. & W. 300), 152. 
 Williamson v. Hanley (6 Bing. 299), 
 
 304. 
 Williams v. Harrison (11 S. C. 412), 
 18. 
 
 Williams v. Hatch(38 Ala. 338), 250. 
 V. Hathaway (19 Pick. 387), 35. 
 V. Healey (3 Denio, 363), 207. 
 V. Herndon (12 B. Mon. 484), 
 
 256. 
 V. Hilton (35 Me. 647), 234. 
 V. Inabuet (1 Bailey, 343), 25. 
 V. Ingram (21 Tex. 300), 196. 
 •». Jackmau (16 Gray, 614), 87, 
 
 205, 210. 
 V. Lake (29 L. J. Q. B. 1; 2 B. 
 
 &E. 349), 76. 
 V. Lerch (56 Cal. 330), 95a, 106. 
 V. Lowe (4 Humph. 62), 174. 
 V. Marshall (4 Gill & J. 376), 
 
 277. 
 V. Merle (11 Wend. 80), 288, 
 
 310, 311, 313. 
 V. Merritt (23 111. 623), 233. 
 V. Millington (1 H. Bl. 81), 
 
 287. 
 V. Morton (2 Md. Ch. 94), 277. 
 «. Miller (16 Conn. 144), 311. 
 C.Nichols (13 Wend. 58), 271. 
 V. Owens (5 Mylne & C. 303), 
 
 204. 
 V. Poor (3 Cranch. C. C. 251), 
 
 282. 
 V. Porter (41 Wis. 422), 84a. 
 ■o. Kobinson (73. Me. 186), 76. 
 ti. Eorer (7 Mo. 566), 140, 241. 
 ji. Spafford (8 Pick. 850), 188, 
 n. Tappan (23 N. H. 386), 306. 
 ^. Tiedemann (6 Mo. App. 
 
 269), 202. 
 ■u. Urmston (35 Ohio St. 296), 
 
 30. 
 V. Wentworth (5 Beav. 325), 
 
 23. 
 V. Wells (6 Dana, 48), 84. 
 V. Winson (12 E. I. 9), 63, 232. 
 V. Wood (16 Md. 220), 79, 272, 
 
 335. 
 Williamson o. Baltimore (19 Md. 
 
 413), 282. 
 
 731 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Williamson v. Beckhams (8 Leigh, 
 20), 30. 
 V. Berry (8 How. 495), 1, 260, 
 
 256, 284. 
 V. Branch Bank (7 Ala. 906), 
 277. 
 Willis V. Hubbert (117 Mass. 161), 
 
 196. 
 Williamson v. Jones (1 Bush. 621), 
 333. 
 V. Millington (1 H. Bl. 81), 
 
 282. 
 V. N. J. South. E. R. Co. (26 N. 
 
 J. Eq. 311), 239, 240. 
 V. N. J. Southern E. E. Co. (28 
 N.J. Eq. 277; 29N.J. Eq. 
 311), 238. 
 V. N. J. Southern E. E. Co. 
 (29 N. J. Eq. 311), 332, 
 238, 240. 
 V. Eussell (39 Conn. 406), 327. 
 V. Sammons (34 Ala. 691), 185, 
 
 186. 
 V. Steele (8 Lea, 627), 231, 232, 
 
 233. 
 V. Walker (24 Ga. 257), 277. 
 Willing V. Peters (12 Serg. & E. 
 
 181), 186. 
 Williston V. Morse (10 Met. 17), 
 
 281. 
 WiUonghby v. Moulton (47 N. H. 
 
 205), 163, 327. 
 Wilraarch v. Mountford (4 Wash. 
 
 C. C. 79), 140. 
 Wilmerding », Mitchell (13 Vroom 
 476), 204. 
 V. Mitchell (52 N. J. L. 476), 
 228. 
 WUmoto. Hurt (11 Wend. 584), 
 
 181. 193. 
 Wilmouth V. Petton (2 Bibb. 280), 
 
 207. 
 Wllmshurst v. Bowker (2 M. & G. 
 792 J 7 Man. & G. 
 95. 
 732 
 
 Wilmshurst v, Bowker (2 M. & G. 
 
 792), 85. 
 Wilner v. Morrell (8 J. & S. 222), 
 
 241. 
 Wilson V. Brannan (27 Cal. 258), 
 
 241, 247, 248. 
 V. Briggs (7 Watts & S. Ill), 
 
 25. 
 V. Carson (12 Md. 64), 239. 
 V, Carver (4 Hayw. 90), 224^ 
 
 228. 
 V. Cooper (10 Iowa, 665), 7. 
 V. Crocker (43 Mo. 218), 310. 
 p. Danville (4 L. E. Ir. 249; 6 
 
 L. E. Ine. 210), 190. 
 V. Dosler (7 Ired. Eq. 231), 
 
 277. 
 V. Ferguson (Cheves, 190), 195. 
 V. Fuller (9 Kan. 76), 327. 
 V. Hooper (12 Vt. 653) 84o. 
 V. Leslie (20 Ohio, 161, 389), 
 
 84a, 239, 240, 
 V. Little (2 Const. 443), 274. 
 V. Lott (5 Fla. 306), 84a. 
 V. Melvin (13 Gray, 73), 290. 
 V. Milligan (76 Mo. 41), 240. 
 V. Patrick (34 Iowa, 361), 204. 
 ». Eoundtree (72 111. 670), 241. 
 V. Eussell (13 Md. 494), 234. 
 V. Scott (29 Ohio St. 636), 260. 
 V. Stratton (47 Me. 120), 5, 
 
 291. 
 V. Traer (20 Iowa, 231), 239. 
 V. Wagar (26 Mich. 462), 101. 
 V. Weston (4 Jones Eq. (N. C.) 
 
 349), 224. 
 V. White (80 N. C. 280), 170. 
 V. Whitaker (49 Pa. St. 114), 
 
 336. 
 V. Wilson (37 Md. 1), 231. 
 V. Wilson (38 Me. 18), 200. 
 V. Wilson (5 H. L. C. 40), 35. 
 V. Wilson (37 Mo. 1), 302. 
 Wilt V. Franklin (1 Binn. 514, 523), 
 
 174, 175. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Wiltshire ». Sims (1 Camp. 258), 
 
 272. 
 Winchell v. Carey (115 Mass. 660), 
 
 308. 
 Winchester v. Ball (34 Me. 658), 
 221, 247. 
 V. Charter (12 Allen, 606; 97 
 
 Mass. 106), 174. 
 
 V. Howard (97 Mass. 304), 36. 
 
 V. Newton (2 Allen, 492), 210. 
 
 V. Nutter (52 N. H. 507), 301. 
 
 Wind Engine, &c., Co. v. Oliver (16 
 
 Neb. 612), 130. 
 Windsor v. Lombard (18 Pick. 65), 
 190. 
 V. McLellan (2 Story, 492), 
 239. 
 Winegardner v. Hafer (15 Pa. St. 
 
 144), 256. 
 Wineland ». Coonce (6 Mo. 296) , 
 
 327. 
 Wineman v. Walters (53 Miss. 
 
 430), 332. 
 Winfleld v. Dodge (45 Mich. 356), 
 
 293. 
 Wing V. Clark (24 Mo. 366), 89. 
 V. Cooper (37 Vt. 179), 224. 
 V. Merchant (57 Me. 383), 11. 
 V. Neal (2 Atl. Hep. 881 (Me.), 
 317. 
 Wingate v. Neidlinger (50 Ind. 
 
 526), 149. 
 Wingfield Ex parte, Florence, lu. 
 re. (10 Ch.D.591C.A.), 
 36. 
 Wings V. Brown (14 Rich. 103), 
 
 187. 
 Winne v. Hammond (37 111. 99), 
 
 271. 
 Winshurst v. Deely (2 C. B. 253), 
 
 98. 
 Winslowc. Leonard (24 Pa. St. 12), 
 88. 
 V. Merchants Ins. Co. (4 Met. 
 306), 233. 
 
 Winslow V. Tarbox (18 Me. 132), 
 
 227. 
 Winsom v. Lombard (18 Pick. 59) 
 
 187, 191. 
 Winsore. Lombard (18 Pick. 57), 
 189. 
 V. McLellan (2 Story, 492), 240. 
 Winsted Bank v. Webb (89 N. Y. 
 
 325), 144. 
 Winter v. Bandel (30 Ark. 362), 158. 
 V. Belmont Mining Co. (63 Cal. 
 
 428), 313. 
 V. Landphere (42 Iowa, 471), 
 231, 233. 
 Wintermute v. Light (46 Barb. 278) , 
 
 231. 
 Winterfort, etc., Co. v. Schooner 
 
 Jasper (1 Holmes, 101), 39. 
 Wise V. Chase (43 N. Y. 159), 144. 
 V. McMahon (Longhi.&T. 192), 
 89. 
 Wisp V. Hazard (66 Cal. 469), 317. 
 Wirner v. Bardwell (38 Mich. 278), 
 
 292. 
 Wisser v. O'Brien (3 J. & Sp. 149), 
 
 239. 
 Wltherow v. Witherow (16 Ohio, 
 
 230), 34. 
 Withers v. Lyss (4 Camp. 237) 87. 
 Withers v. Reynolds (2 Barn. & 
 
 Ad. 882), 200. 
 Willowski V. Wasson' (71 N. C. 
 
 461), 1, 45. 
 Wolcott V. Mount (32 N. J. L. 262), 
 190. 
 V. Mount (36 N. J. L. 262; 38 
 N. J. L. 496), 166, 187, 
 189, 197, 215, 336. 
 WoU V. Kahn (62 Miss. 814), 106. 
 V. Koppell (5 Hill, 458), 273. 
 V. Marsh (54 Cal. 228), 218. 
 B. Van Metre (23 Iowa, 397), 
 
 30. 
 !>. Van Metre (27 Iowa, 348), 
 265, 283. 
 
 733 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Wolfe ». Dorr (24 Me. 104), 233. 
 V. Lnyster (1 Hall, 146), 165, 
 
 169, 282. 
 V. Pugh (101 Ind. 494), 173. 
 Wolfender v. Wilson (33 Up. Can. 
 
 Q. B.442), 68. 
 Wolfley V. Eising (8 Kan. 297), 84a. 
 
 V. Eising (12 Kan. 535), 241. 
 Wolford V. Harrington (74 Pa. St. 
 
 311), 270. 
 Womble v. Leach (83 N. C. 84), 231, 
 
 234. 
 Wontnero. Sharp (4 0. B. 404), 
 
 33. 
 Wood ». Ashe (1 Strobh. 407) , 187, 
 
 196. 
 V. Ashe (3 Strobh. 64), 182. 
 V. Armstrong (54 Ala. 150), 
 
 290, 306. 
 V. Bell (6 E. & B. 772; 25 L. J. 
 
 Q. B. 148; s. c. Ex. Ch. 
 
 6 B. & B. 355; 25 L.J. 
 
 Q. B. 321), 82, 86, 87. 
 V. Bodwell (12 Mass. 289), 144. 
 V. Bugby (29 Gal. 466), 84a. 
 V. BuUena (6 Allen, 518), 143. 
 V. Chambers (20 Tex. 254), 174. 
 V. Cohen (6 Ind. 455), 324. 
 V. Dudley (8 Vt. 430), 221, 223. 
 o. Dickie (7 Q. B. 892), 174. 
 V. Hayes (15 Gray, 376), 271. 
 B. Hitchcock (20 Wend. 47), 
 
 140. 
 V. Knapp (100 N. Y. 109), 260. 
 V. Lak (13 Wis. 34), 255. 
 V. Leadbitter (13 M. & W. 838), 
 
 232. 
 V. Lester (29 Barb. 145), 231, 
 
 232. 
 V. Lowry (17 Wend. 492), 240. 
 V. Manley (11 Ad. & B. 34), 97, 
 
 104, 105, 232. 
 Wood Mowing, &c., Co. v. Crow 
 
 (SON. W. 609; 70 Iowa, 
 
 340), 183,269. 
 
 734 
 
 Wood B. Pindal (Wright (Ohio), 
 
 607), 25. 
 Woods Eeaping Machine Co. v. 
 Smith (50 Mich. 566), 
 213. 
 Wood V. Eoach (2 Dall. 180), 127. 
 V. Eoach (1 Yeates, 177), 126. 
 V. Eowcliffe (6 Exch. 407), 233. 
 V. Eowcliffe (6Harr. 183), 317. 
 V. Eussell (5 B.& Ad. 942), 210. 
 V. Scott (55 Iowa, 114), 234. 
 V. Sheldon (42 N. J. L. 421), 186, 
 
 215. 
 V. Sheldon (13 Vroom. 421), 
 
 186. 
 V. Tassell (6 Q. B. 234), 97. 
 V. Trask (7 Wis. 666), 221. 
 V. Truax (39 Mich. 628), 253. 
 V. Vandenburgh (6 Paige, 277), 
 
 277. 
 V. Weiner (104 U. S. 786), 238. 
 V. Yeatman (16 B. Mon. 270), 
 130, 131, 327, 329. 
 Wood and Poster's Case (1 Leon. 
 
 42), 52. 
 Woodburn v. Chamberlain (7 Barb. 
 
 446), 234. 
 Woodbury v. Bobbins (10 Cash. 
 
 520), 194. 
 Woodford v. McClenahan (9 111. 85), 
 273. 
 C.Patterson (32 Barb. 630), 68. 
 Woodle V. Whitney (23 Wis. 25), 
 
 197. 
 Woodley v. Coventry (2 H. & C. 
 164; 32L.J.EX. 185),69. 
 Woodman v. Chapman (1 Camp. 
 189), 28. 
 V. Chesley (39 Me. 45), 241. 
 Woodrow V. Davis (2 B. Mon. 298), 
 
 84a. 
 Woodruff V. Hinman (11 Vt. 692), 
 292. 
 V. King (47 Wis. 261), 246. 
 V. Noyes (16 Conn. 336), 89. 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Wood's Appeal (92 Pa. St. 379), 
 
 277, 319. 
 Woods V. Benyott (2 Gr. & J. 95), 
 61. 
 V. Bugbey (29 Cal. 466), 106. 
 V. HaU (1 Dev. Bq. 411), 165. 
 V. Hudson (6 Munf. 423), 169. 
 ■0. Hull (81Pa. St. 451), 106. 
 V. McGee (7 Ohio, 467), 88. 
 B. Miller (55 Iowa, 168), 215. 
 V. Sherman (71 Pa. St. 100), 
 
 152. 
 V. Kocchi (32 La. An. 210), 
 
 272. 
 V. Russell (5 B. & Aid. 942), 82, 
 87. 
 Woodside v. Adams (40 N. J. L. 
 
 417), 221, 248. 
 Woodson V. Wallace (22 Pa. St. 
 
 171), 224. 
 Woodward v. Boston (115 Mass. 
 81), 283. 
 V. Barton (116 Mass. 81), 208. 
 V. Donnally (27 Ala. 198), 253. 
 V. Gates (9 Vt. 358), 238. 
 B.Wilcox (27 Ind. 207), 221, 
 247. 
 Woolle V. Home (L. J. 46 Q. B. 
 
 534), 287. 
 Wooleny v. Fry (30 111. 158), 284. 
 V. Staley (39 Ohio St. 354), 209. 
 WooUey ». Clements (11 Ala.. 229), 
 
 99. 
 Woolsey v. Bailey (27 N. H. 217), 
 
 84. 
 Wooster w. Sherwood (25 N. Y. 
 
 278), 88, 316. 
 Wooton V. Hinkle (20 Mo. 290), 
 
 169. 
 Word V. Caven (1 Head, 507), 185, 
 
 186. 
 Wardall v. Smith (1 Camp. 335), 
 
 84<z. 
 Woraell ». Fosdick (13 Johns. 326), 
 164. 
 
 Worman«. Cramer (78 Pa.^St. 378), 
 
 106. 
 V. Kramer (73 Pa. St. 378), 84a. 
 Warner v. Wellington (3 Drew. 
 
 523), 76. 
 Wormley v. Wormley (8 Wheat. 
 
 442), 277. 
 Worten v. Howard (2 Smed. & M. 
 
 527), 259. 
 Worthen v. Wilmot (30Vt. 555), 
 
 335. 
 Worthy v. Cole (69 N. C. 157), 204. 
 
 V. JohnsOQ (8 Gi. 236), 284. 
 Wrangler v. Franklin (70 Mo. 659) . 
 
 206. 
 Wrights. Alanta (54 Ga. 645), 281. 
 V. Baroes (14 Conn. 518), 101. 
 V. Bates (13 Vt. 348), 228. 
 V. Behrens (39 N. J. L. 413), 
 
 139, 140. 
 V. Bircher (70 Mo. 179), 232. 
 V. Bircher (5 Mo. App. 322; 72 
 
 Mo. 179), 222. 
 V. Bircher (5 Mo. App. 327), 51, 
 
 223,231. 
 V. Brandis (1 Ind. 336), 174. 
 V. Brown (67 N. Y. 1), 170, 171. 
 ». Kundy (11 Ind. 398), 234. 
 ». Cabot (89 N. Y. 570), 142, 
 
 269. 
 V. Cormick (67 Mo. 426), 84a. 
 V. Dannah (117 Camp. 203), 78, 
 
 272, 286. 
 V. Dehlynes (1 Pet. C. C. 199), 
 
 284. 
 V. Grover (27 111. 426), 106. 
 V. Hart (17 Wend. 267; 18 
 
 Wend. 449), 214. 
 V. Hart (18 Wend. 449), 187. 
 V. Howell (35 Iowa, 292), 174. 
 V. Laing (3 B. & C. 165), 152. 
 V. Mack (95 Ind. 332), 261, 262. 
 V. McCormick (67 Mo. 626) > 
 
 84a. 
 V. McPike (70 Mo. 175), 196. 
 
 735 
 
TABLE OF CASES CITED. 
 
 References are to Sections. 
 
 Wright V. Eider (36 Cal. 342), 303. 
 V. Ross (36 Cal. 4U), 221, 223, 
 
 248. 
 V. Stacey (19 La. Ann. 449), 
 
 297. 
 V. Steele (2 N. H. 51), 19. 
 V. Solomon (19 Cal. 64), 273, 
 
 310, 317. 
 V. Tetlow (99 Mass. 397), 87. 
 V. Weed (6 Eep. Can. Q. B. 
 
 140), 98, 113. 
 V. Weeks (25 N. Y. 158), 76. 
 V. Yetts (30 Ind. 185), 284. 
 Wroe V. Harris (2 Wash. (Va.) 
 
 126), 258. 
 Wyatt«. Steward (34 Ala. 716), 
 
 84a. 
 Wayburd«>. Stanton (4 Esp. 197), 
 
 300. 
 Wyck V. Brasher (85 N. Y. 260), 25. 
 Wyldere. Crane (53 111. 490), 247, 
 
 248, 249, 250. 
 Wyly V. Collins (9 Ga. 223), 30. 
 Wyraan v. Fisk (3 Allen, 238), 302. 
 Wynne, In re (4 Nat. Bank Eep. 
 28), 240. 
 V. Wiseraant (37 Ala. 46), 296, 
 292. 
 Wynns v. Alexander (2 Dev. & B. 
 Eq. 58), 259. 
 
 Y. 
 
 Yaeger Milling Co. v. Brown (128 
 
 Mass. 171), 308. 
 Yale V. Dederer (18 N. Y. 269), 30. 
 V. Dederer (22 N. Y. 450), 30. 
 Yale V. Sealy (15 Vt. 221), 104. 
 Yangerc. Skinner (1 McCart. 889), 
 
 21. 
 Yant V. Harvey (55 Iowa, 421), 
 
 233. 
 Yardley v. Arnold (1 C. & M. 434), 
 
 277. 
 736 
 
 Yarnell v. Anderson (14 Mo. 619), 
 
 144. 
 Yates V. Bond (2 McCord, 382), 
 283. 
 V. Cornelius (59 Wis. 615), 
 \ 193. 
 
 V. United States (15 Ct. of CI. 
 119, 125), 333. 
 Ybarra o.Lorenzana (68 Cal. 197), 
 
 174, 
 Yeagin v. Irwin , (127 Mass. 217), 
 
 158. 
 Yerbey v. Grigsbey (9 Leigh,-B87), 
 
 269. 
 
 Yerga v, Jones (16 How. 37), 277. 
 
 Yerkes v. Solomon (11 Hun, 473), 
 
 272. 
 
 V. Wilson (81 Pa. St, 91), 165. 
 
 York Co. Bank v. Carter (89 Pa. St 
 
 446), 175. 
 
 Youghiogheny Iron Co. v. Smith 
 
 (66 Pa. St. 340), 197, 834. 
 
 Young V. Adams (6 Mass. 182), 149. 
 
 V. Austin (6 Pick. 280), 88. 
 
 V. Barton (1 McMull, Eq. 265), 
 
 337. 
 V. Blaisdell (60 Me. 242), 64. 
 V. Bradley (68 111. 553), 84o. 
 V. Bruces (5 Litt. 324), 50. 
 V. Cole (3 Bing. (N. C.) 724), 
 
 215, 272. 
 c.Covell (8 Johns. 25), 160. 
 V. Hall (6 Ga. 95), 162. 
 V. Heermanns (66 N. Y. 374), 
 
 174. 
 V. Hibbs (5 Neb. 483), 144. 
 V. Lloyd (66 Pa. St. 199), 335. 
 V. Matthews (L. E. 2 C. P. 
 
 127), 87. 
 V. Mertens (27 Md. 126), 334. 
 V. Merton (27 Md. 114), 333. 
 V. Miller (6 Gray, 152), 24 5. 
 V. Miles (20 Wis. 616; 23 Wis. 
 
 648), 7, 88. 
 V. Pate (4 Yerg. 164), 84a. 
 
TABLE OP CASES CITED. 
 
 Beferences are to Sections. 
 
 Young V. Smith (10 B. Mon. 293), 
 169. 
 V. Snyder (3 Grant Gas. 151), 
 169. 
 
 Z. 
 
 Zagney ». Furnell (3 Camp. 240), 
 
 82. 
 Zagory v. Farrell (2 Camp. 240), 87. 
 
 Zahn V. Pry (10 Phila. 247), 176. 
 Zarlng v. Cox (78 Ky. 527), 232. 
 Zehner v. Aultman (74 Ind. 24), 
 
 233. 
 Zleglerc. Hendrick (106 Pa. St. 
 
 57), 106. 
 Znchtmann v. Boberts (109 Mass. 
 
 53), 85. 
 Zuver V. Lyons (40 Iowa, 570), 
 
 228. 
 47 737 
 
INDEX. 
 
 Beferences are to Sections. 
 
 A. 
 
 "ABOUT," 
 
 meaning of, 102. 
 ACCEPTANCE, 
 
 acceptance and delivery, concurrent acts — effect of want of, 112. 
 
 when buyer obliged to accept — buyer's duties in acceptance of 
 goods, 113. 
 
 receipt and acceptance distinguished — right of inspection of goods, 
 114, 115. 
 
 what constitutes acceptance — right of Inspection and rejection of 
 goods, 116, 114. 
 
 acceptance when delivery by installments, 116. 
 
 acceptance final — right of rejection barred by acceptance, 117. 
 
 effect of subsequent acceptance, 36. 
 
 conditional acceptance, when binding, 37, 68. 
 
 acceptance must be communicated, 38. 
 
 retraction of acceptance, 42. 
 
 effect of compliance with requirement of acceptance and receipt, 63. 
 
 burden of proof of acceptance and receipt, 64. 
 
 acceptance and receipt by agent, 65. 
 
 acceptance and receipt distinguished, 66, 114, 115. 
 
 what acts constitute acceptance, 67, 115, 114. 
 
 whether inspection of goods is necessary to constitute acceptance, 68. 
 
 acceptance of part of the goods, etc., — samples, 70. 
 
 delivery incomplete without acceptance, 109. 
 
 acceptance of offer to sell, 33. 
 
 acceptance by mail, telegraph, telephone, etc., 39 
 
 conditional acceptances, 68. 
 
 acceptance of mortgage, 237. 
 ACCOUNTS, 
 
 sale of, within statute of frauds, 59. 
 AGENT, See Sales by Agent axd Personal Representatives ; Auc- 
 tion Sales ; Factors and Brokers. 
 
 acceptance and receipt by, 65. 
 
 undisclosed principals, 73. 
 
 agent duly authorized, 78. 
 
 principal's name need not be signed, 80. 
 
 739 
 
INDEX. 
 
 References are to SectionB. 
 
 AGENT — Continued. 
 
 delivery to agent, 132, 130. 
 
 autliority of agent to receive payment, 142. 
 
 liability of principals, partners and joint-owners for fraudulent 
 misrepresentations of, 173. 
 
 power of infant to appoint agent, 18. 
 
 agent may execute note or memorandum under statute, 73. 
 
 how agent should sign in order to bind principal, 73. 
 
 authority of agent to sign note to memorandum, 78. 
 
 when common carrier agent of vendor, of vendee, 96. 
 
 when agent may exercise right of stoppage in transitu, 126. 
 
 authority of agent to make payment, 141. 
 
 agent only authorized to receive money in payment, 143. 
 
 agent liable for receiving payment in counterfeit bills, 149. 
 
 when creditor constitutes mail carrier his agent for the receipt of 
 money, 154. 
 
 power of agent to bind principal by warranties, 183. 
 
 agent may accept or deliver mortgage, 237. 
 
 agent may accept delivery of goods under chattel mortgage, 238. 
 
 purchase from agent intrusted with certificates of stock, 319. 
 ALIEN, 
 
 rights of wife where husband is an alien, 29. 
 
 contract with alien enemies and in aid of rebellion, 297. 
 ANIMALS, 
 
 unsoundness in, 194. 
 
 mortgage of domestic animals held to include increase, 231. 
 APPROPRIATION, 
 
 what constitutes a sufficient appropriation in sale of goods not spe- 
 cific, 89. 
 APPROPRIATION OF PAYMENT. See Payment and Tender. 
 ASSENT, 
 
 general proposition, 33 
 
 effect of variance from ofiEer, 34. 
 
 mistakes of fact, 35. 
 
 counter proposition works rejection of original offer — effect of sub- 
 sequent acceptance, 36. 
 
 conditional acceptance, when binding, 37. 
 
 acceptance must be communicated, 38. 
 
 communication by mail, telegraph, telephone, phonograph, 39. 
 
 right to retract offer, 40. 
 
 when contract for option is binding, 41. 
 
 retraction of acceptance, 42. 
 
 when assent not necessary, 43. 
 
 assent need not be express, may be implied, 89. 
 740 
 
INDEX. 
 
 References are to Sections. 
 
 ASSIGNMENT, 
 
 sale distinguished from, 13. 
 
 voluntary assignment for benefit of creditors, 175. 
 
 of mortgage, 245. 
 AS SOON AS POSSIBLE. See Time. 
 ATTACHMENT, 
 
 unnecessary to deliver goods, exempt from, in order to transfer title 
 as against creditors, 81a, 106. 
 
 sales under, 265. 
 AUCTION SALES, 57. 
 
 employment of puffers or by-bidders at auction sales, 165. 
 
 other frauds in auction sales, 165. 
 
 pledgees must sell at auction, 274. 
 
 sales by executors and administrators must be at auction, 277. 
 
 auction sale defined, 280. 
 
 auctioneer's license and bond, 281. 
 
 objections of the auctioneer to the seller, 282. 
 
 the powers of the auctioneer, 283. 
 
 the conditions of the auction sale, 284. 
 
 competition must be fair — manner of bidding, 285. 
 
 statute of frauds in respect to auction sales, 286. 
 
 the auctioneer's compensation, 287. 
 
 auctioneer, when liable as vendor, 288. 
 AUCTIONEER. See Auction Sales. 
 
 implied authority of, to sign note or memorandum, 78. 
 
 frauds of, in auction sales, 165. 
 
 B. 
 
 BAILEE. See Bailment. 
 BAILMENTS, 
 
 sale distinguished from, 3. 
 
 sale and return distinguished from bailments with right of purchase, 5. 
 
 sale by bailee in general, 316. 
 
 delivery of goods to bailee for sale, 817 
 BANKRUPT. See Insolvency. 
 
 baetee, 
 
 sale distinguished from, 12, 
 BIDDERS. See Auction Sales, 
 
 combinations of, 169. 
 BILL OF EXCHANGE, 
 
 with bill of lading attached, 85. 
 BILL OF LADING, 
 
 delivery of, effective symbolical delivery, 105. 
 
 bill of lading attached to bill of exchange, 85. 
 
 741 
 
INDEX. 
 
 References are to Sections. 
 
 BILL OF LADING — Continued. 
 
 title passes on delivery of, 89. 
 
 bona fide transfer of, destroys right of stoppage xn transitu, 124, 323 
 
 definition end nature of, 321. 
 
 form and contents of the bill of lading, 322. 
 
 transfer of bill of lading — its negotiability, 323, 
 BILLS AND NOTES. See Notes. 
 BOUGHT AND SOLD NOTES, 
 
 by brokers, 79. 
 BRIBERY, 298. 
 BROKERS, 
 
 bought and sold notes, 79. 
 
 brokers and factors or commission merchants distinguishea 
 
 the powers of the broker, 272. 
 BURDEN OF PROOF, 
 
 of acceptance and receipt, 64, 67, 68, 69. 
 
 on party alleging fraudulent interest, 174. 
 
 on party claiming protection of bona fide purchaser, 329. 
 BUYER. See Vendees. 
 BY-BIDDERS. See Auction Sales; Bidders. 
 
 C. 
 
 CAPACITY TO CONTRACT. See Parties. 
 CARRIERS, 
 
 delivery to, 95. 
 
 how far bound by acknowledgments in bill of lading, 323. 
 
 vendee acting as carrier, 133. 
 
 effect of exercise of right of stoppage in transitu on rights of car- 
 rier, 137. 
 
 impliedly authorized to receive, 65. 
 
 when agent of vendor, of vendee, 95. 
 
 when delivery to common carrier passes title, 85. 
 CASH SALES. See Sales. 
 
 prepayment of price condition precedent in, 85, 86. 
 
 sales for cash on delivery, 207. 
 
 waiver of condition in, 217. 
 CAVEAT EMPTOR. See Warranty. 
 CERTIFICATES OF STOCK, 319. 
 CHAMPERTY. See Illegal Sales. 
 CHATTEL MORTGAGES, 
 
 chattel mortgage defined — conflict of common-law and equitable 
 theories — equity of redemption, 221. 
 742 
 
INDEX. 
 
 References are to Sections. 
 
 CHATTEL MORTGAGES — Continued. 
 
 conditional transfer of title essential to a chattel mortgage — mort- 
 gages distinguished from lien, 222. 
 
 mortgages distinguished from pledges, 223. 
 
 chattel mortgages distinguished from conditional sales with the right 
 to repurchase, 221. 
 
 a parol chattel mortgage, when valid, 225. 
 
 form of the mortgage, 226. 
 
 separate execution of the defeasance, 227. 
 
 parol defeasance, when enforcible, 228. 
 
 who may make a chattel mortgage, 229. 
 
 parties under disabilities, 229. 
 
 what may be mortgaged — mortgage of fixtures, 230. 
 
 can a chattel mortgage cover after-acquired property, 231. 
 
 how far mortgage of after-acquired property is valid — the mort- 
 gage in equity, 232. 
 
 description of property, 233. 
 
 description of the debt — what is a sufficient indebtedness, 234. 
 
 date of mortgage, 235. 
 
 formality of execution — signing and sealing, 236. 
 
 delivery and acceptance of mortgage, 287. 
 
 delivery and possession of mortgaged chattels, 238. 
 
 the general provisions of the recording law, 239. 
 
 the effect of recording a mortgage, 240. 
 
 the right of possession of mortgaged chattels, 241. 
 
 the right of profits, 242. 
 
 mortgagor's right to sell the mortgaged property, 243. 
 
 mortgagor's power to create superior liens, 244. 
 
 assignment of the mortgage, 245. 
 
 effect of tender and payment on mortgage, 246. 
 
 the mortgagor's right of redemption, 247. 
 
 the mortgagee's right of possession after forfeiture, 248. 
 
 foreclosure of the mortgagor's equity of redemption in equity and at 
 law, 249. 
 
 foreclosure under power of sale, 250. 
 
 right of guardian to mortgage ward's property, 254. 
 
 purchaser from mortgagee of, 326. 
 CHECKS, 
 
 payment by, 145. 
 CHOSE IN ACTION, 
 
 sale of, within the statute of frauds, 59. 
 
 when right of action upon, suspended by taking bill or note in pay- 
 ment, 147. 
 
 implied warranty of title in sale of, 185. 
 
 743 
 
INDEX. 
 
 References are to Sections. 
 
 CHOSE IN ACTION — Continued. 
 
 chose In action may be mortgaged, 230. 
 mortgage of, need not be recorded, 239. 
 COMMISSION MERCHANT. See Tactor. 
 COMMON CARRIERS. See Carriers. 
 COMMUNICATION, 
 
 by mail, telegraph, telephone,'etc., 39. 
 acceptance must be communicated, 38. 
 retraction must be communicated, 40. 
 CONDITIONAL SALES. See Sales. 
 
 conditional sales defined — kinds of conditions, 200. 
 
 words necessary to create a conditional sale, 201. 
 
 conditions distinguished from warranties, 202. 
 
 sales upon condition distinguished from consignments — conditioQal 
 
 sales disguised as leases 203. 
 sales upon condition distinguished from chattel mortgage, 204. 
 sales with the right to repurchase, 204. 
 
 preparation of goods for delivery, by vendor, as a condition prec- 
 edent, 205. 
 conditions precedent to be performed by purchaser, 206. 
 prepayment as a condition, 206. 
 
 mutual or concurrent conditions, sales for cash on delivery, 207 
 condition as to time and place of performance, 208. 
 successive deliveries — deliveries in installments, 209. 
 successive payments — sales with installments of payment, 210. 
 notice as a condition precedent, 211. 
 sales dependent upon the acts of others, 212. 
 sales on trial — sales or return — what constitutes a satisfactory 
 
 sale, 213. 
 sale of goods to arrive, 214. 
 correspondence of bulk with sample or description— genuineness 
 
 of commercial securities, 215 • 
 remedies for breach of condition, 216. 
 waiver of conditions — effectof delivery in cash transactions — effect 
 
 of delay in enforcing forfeiture, 217. 
 impossibility of performance — Illegality of condition — obstruction 
 
 of performance by other party, 218. 
 equitable relief against forfeiture, 219. 
 chattel mortgages distinguished from conditional sales with the 
 
 right to repurchase, 224, 221, 326. 
 CONDITIONS. See Conditional Sales. 
 sale of specific goods conditionally, 87. 
 acceptance may be conditional, 115. 
 of exercise of right of stoppage in transitu, 127. 
 744 
 
INDEX. 
 
 References are to Sections. 
 
 CONDITIONS — Continued. 
 
 tender must be unconditional, 140. 
 
 payment by note or bill, when absolute, when conditional, 144. 
 
 presumptions in respect to absolute and conditional payment, how 
 
 rebutted, 146. 
 warranty distinguished from conditions, 180, 202 — 
 warranties as to future«condition, 194, 196. 
 distinction between conditions and warranty, 197. 
 remedies lor a breach of condition, 216. 
 waiver of conditions, 217. 
 Illegality of condition, 218. 
 right of mortgagor to redeem property after breach of condition, 
 
 221. 
 conditional transfer of title essential to a chattel mortgage, 222. 
 conditions of auction sales, 284. 
 sale upon condition subsequent and precedent, 325. 
 CONTRACT. See Remedies roR Beeach ov Contract of Sale. 
 elements of the contract of sale, 2. 
 
 sale distinguished from contract to manufacture and return, 6. 
 who may be parties to contract of sale, 16. 
 infant's contract voidable, not void, 18. 
 ratification of contracts by infants, 19. 
 of lunatics and imbeciles, 21. 
 of lunatics for necessaries, 23. 
 ratification of contract by lunatics, 
 of drunken persons, 25. 
 of persons under guardianship, 26. 
 of spendthrifts, 26. 
 of married women, 27, 
 
 effect of marriage on ante-nuptial contracts, 28. 
 exceptions to married women's contractual disability, 29. 
 contracts of married women with separate estates, 30. 
 contract for option when binding, 41. 
 
 executory and executed contract of sale distinguished, 56, 82. 
 contracts of sale distinguished from contracts for work and labor 
 
 done and material furnished, 58. 
 when does the contract for the sale of goods reach or exceed the 
 
 statutory limit of value, 60, 61. 
 contract not binding unless there is mutual assent, 33. 
 what contracts must be reduced to writing, 55, 59. 
 warranty a contract, 181. 
 
 contract with alien enemies and in aid of rebellion, 297. 
 contracts of insurance — wager contracts, 301. 
 option contracts, 302. 
 
 745 
 
INDEX. 
 
 References are to Sections. 
 
 CONTEACT — Continued. 
 
 contracts in restraint of trade, 303. 
 
 bill of lading as, 321, 322. 
 CONSIDERATION, 
 
 note in writing or memorandum under statute of frauds should con- 
 tain consideration, 76. 
 
 transfer without consideration, 174. 
 
 sale must be supported by valuable, 11. 
 
 consideration of sale must be price or money, 12. • 
 
 new consideration not necessary to support promise on contract made 
 during minority, 19. 
 
 whether consideration must be returned before infant can rescind 20, 
 229. 
 
 ratification of married woman's contracts must be based upon a new 
 consideration, 27. 
 
 agreement for option must be based upon a valuable consideration, 11. 
 
 earnest money no part of consideration, 71. 
 
 the consideration of a warranty, 181. 
 
 must be new consideration to support warranty if made after sale, 
 193. 
 
 when must consideration be returned to enable party to avoid or 
 rescind contract or sale, 229. 
 
 compounding of crimes and misdemeanors as consideration, 296. 
 
 lobbying as consideration for contract, 293. 
 
 wagers as consideration, 301. 
 
 consideration in option contracts, 302. 
 
 one must have paid valuable consideration in order to be bona fide 
 holder or purchaser, 329, 
 CONSIGNMENT, 
 
 sale distinguished from, 8, 203. 
 COUNTEEEEIT MONEY, 
 
 payment in, 149. 
 
 need not be returned under rescission of sale, 168. 
 COVEETTJEE, 
 
 disability of, 27. 
 
 liability of husband on ante-nuptial contracts expires with termi- 
 nation of, 28. 
 CEEDIT, 
 
 sale on, 120. 
 
 when buyer entitled to immediate delivery when sale is on credit, 93. 
 
 misrepresentation of, by buyer, 168. 
 
 mortgagee may sell mortgaged property on, 25C. 
 
 nature of power to sell on, 269. 
 
 broker has not the power to sell on, 272. 
 746 
 
INDEX. 
 
 Befereuces are to Sections. ' 
 
 CEOPS, 
 
 annual and perennial, 59. 
 
 right to mortgage crops, 231. 
 
 sale of fructus industriaUs within 17 sec. statute of frauds, 59. 
 
 what constitutes delivery of, 104. 
 CUSTOM, 
 
 right of inspection of goods may be taken away after receipt by com- 
 mercial custom, Hi. 
 
 of warranting goods, 183. 
 
 effect of usage upon implied warranties of quality, 192 
 
 usage as controlling power of broker, 272. 
 
 usage as governing powers of factors and commission merchants, 
 273. 
 
 powers of auctioneer determined by custom, 283 
 
 D. 
 
 DAMAGE, 
 
 to party deceived, 162. 
 
 measure of, in buyer's suit for fraud, 163. 
 
 action for damage on implied warranty, 197. 
 
 seller's remedies in executed contracts — measure of damage, 332. 
 
 seller's remedy in personam In executory contracts — measure of 
 damages, 333. 
 
 buyer's remedies for seller's breach of contract — measure of dam- 
 ages, 335. 
 
 buyer's claim to special or consequential damage, 336 
 DAY, 
 
 hours of, for delivery, 99. 
 
 sale after return day, 264. 
 DEALER'S TALK, 
 
 seller's expression of opinion, 166. 
 
 his statements as to value and price, 166. 
 DECEIT. See Ekaudulknt Sales. 
 DEFINITION AND ESSENTIAL ELEMENTS OF SALES, 
 
 sale defined, 1. 
 
 elements of the contract of sale, 2. 
 
 sale distinguished from bailments, 3. 
 
 sale distinguished from pledges, 4. 
 
 sale and return distinguished from bailments with right of pur. 
 chase, 5. 
 
 sale distinguished from contract to manufacture and return, 6. 
 
 sale distinguished from depositum — warehouses and grain ele- 
 vators', 7. 
 
 sale distinguished from consignment, 8. 
 
 747 
 
INDEX. 
 
 References are to Sections. 
 
 DEFINITION AND ESSENTIAL ELEMENTS OF SALES — Continued. 
 
 sale distiugaished from lease or hiring, 9. 
 
 sale distinguished from mortgage, 10. 
 
 sale distinguished from gift, 11. 
 
 sale distinguished from exchange or barter, 12. 
 
 sale distinguished from assignment, 13. 
 DEMAND, 
 
 when necessary, 324. 
 DELIVERY, 
 
 what is meant by delivery, 92. 
 
 when buyer entitled to delivery, 93. 
 
 when and how far it is vendor's duty to make delivery, 94. 
 
 delivery to the common carrier, 95. 
 
 delivery to a warehouseman, 95a. 
 
 place of delivery, 96, 131, 132, 207. 
 
 buyer's license to enter premises irrevocable, 97. 
 
 time of delivery, 98, 207. 
 
 computation of time — divisions of time —hour of the day, 99. 
 
 reasonable time — forthwith — as soon as possible. 100. 
 
 quantity to be delivered, 101. 
 
 effect of partial delivery, 101. 
 
 effect of words of indefinite estimate — more or less — about — say 
 about, 102. 
 
 delivery by installments, 103, 116, 209. 
 
 form of delivery — actual and constructive delivery, 104. 
 
 symbolical delivery, 106. 
 
 what delivery is sufiScient as against purchasers, 106. 
 
 second delivery permissible when first is defective, 107. 
 
 rescission of sale — rights of vendee's creditors, 108. 
 
 delivery incomplete without acceptance, 109. 
 
 when essential to transfer of title, 84. 
 
 delivery without transfer of title, 85. 
 
 how far essential to transfer of title, as against creditors and subse- 
 quent purchasers, 84a, 106. 
 
 delivery of goods, wares and merchandise, 121. 
 
 what delivery is sufficient to destroy vendor's lien, 122. 
 
 delivery at intermediate points, 131. 
 
 delivery to agent at place of destination with provision for further 
 transportation, 132. 
 
 delivery by vendor to ship chartered by vendee — vendee acting as 
 carrier, 133. 
 
 delivery and payment concurrent acts, 93. 
 
 as a general rule title does not pass until goods are ready for deliv- 
 ery, 87. 
 748 
 
INDEX. 
 
 References are to Sections. 
 
 DELIVERY — Continued. 
 
 acceptance and delivery concurrent acts, 112. 
 
 preparation of goods by vendor for delivery as condition precedent, 
 205. 
 
 successive deliveries, 209. 
 
 effect of delivery in cash transactions, 217. 
 
 delivery of mortgage, 237. 
 
 delivery and possession of mortgaged chattels, 238. 
 
 contracts for future delivery, 302. 
 
 of goods to bailee for sale, 817. 
 
 delivery of bill of lading essential to pass title, 323. 
 
 non-delivery of proper goods, 335. 
 DEL CREDEEB COMMISSION, 
 
 meaning of, 273. 
 DEPOSITUM, 
 
 sale distinguished from, 7. 
 DESCRIPTION, 
 
 sale by, 187. 
 
 implied warranty of conformity of goods to sample and descrip- 
 tion, 197. 
 
 correspondence of bulls with description, 215. 
 
 of property, 233. 
 
 of debt In case of mortgage, 231. 
 DISAFFIRMANCE, 
 
 of sales by infants, 20. 
 DOCUMENTS OF TITLE, 317, 318. 
 DRUNKARD, 
 
 contract of, 25. 
 
 E. 
 EARNEST, 
 
 and part payment, distinguished, 71. 
 EMINENT DOMAIN, 
 
 meaning of term — confiscation of personalty under right of, 252. 
 EXCHANGE, 
 
 sale distinguished from, 12. 
 
 mortgagee cannot barter or exchange mortgaged property for other 
 property, 250. 
 
 factor has not the right to exchange and barter principal's goods, 273. 
 EXECUTION, 
 
 unnecessary to deliver possession of goods exempt from, in order to 
 transfer title as against creditors and subsequent purchasers, 84a, 
 106. 
 
 conveyance of property exempt from execution cannot be avoided by 
 creditors, 174. 
 
 749 
 
INDEX. 
 
 References are to Sections. 
 
 EXECUTION — Continued. 
 
 sales under execution, 25 
 
 judicial and execution sales distinguished, 256. 
 
 execution sales within statute of frauds, 256. 
 
 general requirement of execution sales, 257. 
 
 who may make sale on execution, 258. 
 
 when sales on execution must be public, 269. 
 
 notice in sales on, 260. 
 
 place of sale, 261. 
 
 sale in parcels, 262. 
 
 terms of sale, 263. 
 
 sale after return day, 264. 
 
 adjournment of sales, 265. 
 
 purchaser at an illegal sale under execution, 314. 
 .EXECUTION SALES. See Execution. 
 EVIDENCE, 
 
 of acceptance, 67. 
 
 of receipt, 69. 
 
 non-payment of price prima facie evidence of retention of vendor's 
 lien, 69. 
 
 it may be shown by parol evidence who real principal is, 73. 
 
 parol evidence admissible to show who party is, whose initials ap- 
 pear in note or memorandum, 76. 
 
 parol evidence admissible to show time of performance, 100. 
 
 retention of possession of goods by vendor prima fade evidence of 
 fraud of on creditors and subsequent purchasers, 84a, 106. 
 
 parol evidence admissible to show intention not to waive lien, 120. 
 
 parol evidence admissible to prove sale by sample, 188. 
 
 parol evidence not admissible to show warranty when there is a 
 formal bill of sale in writing, 196. 
 
 what evidence admissible to prove warranty as to future condition, 
 196. 
 
 where instrument takes form of a mortgage, parol evidence admis- 
 sible to show transaction a pledge, 223. 
 
 when parol evidence admitted to show a bill of sale to be mortgage, 
 228. 
 
 parol evidence not admissible to show parties intended mortgage to 
 include property excluded by description, 233. 
 
 parol evidence may be made use of to aid description, 233. 
 
 when parol evidence admissible to identify mortgage debt, 234 
 
 parol evidence admissible to show date of mortgage, 235. 
 
 agreements to suppress evidence as consideration, 296. 
 
 possession, how far evidence of ownership, 312. 
 
 terms of bill of lading cannot be varied by parol evidence, 322. 
 750 
 
INDEX. 
 
 Beferences are to Sections. 
 
 F. 
 
 FACT, 
 
 mistakes as to, 36. 
 
 a material misrepresentation of, 158. 
 
 concealment of material facts by the buyer, 171. 
 FACTOR, 
 
 consignment of goods to, not a sale, 8. 
 
 brokers and factors or commission merchants distinguished, 271 . 
 
 powers of factor or commission merchant, 273. 
 
 sale by, factor's acts, lien, 317. 
 FEME COVERT. See Husband and Wifb. 
 FIXTURES, 
 
 what are fixtures, 59. 
 
 mortgage of fixtures, 230. 
 FOOD. See Provisions. 
 FRAUD. See Fbaudulbnt Sai.es. 
 FRAUDULENT SALES. See Sales; Fraud. 
 
 fraud defined, its component parts, 157. 
 
 a material misrepresentation of fact, 158. 
 
 when concealment is fraudulent, 159. 
 
 intention to deceive — negligence in the statements of falsehoods, 
 160. 
 
 reliance upon representation — deceit must be successful, 161. 
 
 damage to party deceived, 162. 
 
 remedies for fraud, 163. 
 
 material misrepresentations by the seller, 164. 
 
 employment of puffers or by-bidders at auction and other sales, 165. 
 
 other frauds in auction sales, 165. 
 
 seller's expression of opinion, 166. 
 
 dealer's talk — his statements as to value and price, 166. 
 
 seller's concealment or silence, when a fraud, 167. 
 
 fraudulent devices of buyers, 168. 
 
 combinations of bidders, 169. 
 
 fraudulent intent not to pay, 170. 
 
 concealment of material facts by the buyer, 171. 
 
 expressions of opinion by the buyer, 172. 
 
 liability of principals, partners and joint-makers for fraudulent mis- 
 representations of agents, 173. 
 
 fraud on creditors — transfers without consideration, 174. 
 
 voluntary conveyances — transfers for the purpose of hindering or 
 delaying creditors, 174. 
 
 retention of goods by vendor, 84a, 106. 
 
 fraudulent transfer of bill of lading does not destroy right of stop- 
 page in transitu, 134. 
 
 751 
 
INDEX. 
 
 References are to Sections. 
 
 FEAUDULENT SALES — Continued. 
 
 fraud defined, 157. 
 
 fraud distinguished from warranty, 180. 
 
 express warranties distinguished from fraud, 193. 
 
 purchaser from fraudulent vendee, 327. 
 
 purchaser of vendor in fraud of creditors, 328. 
 FRUCTUS INDUSTEIALES. See Crops. 
 FRUCTUS NATURALES. See Crops. 
 
 G. 
 
 GIFT, 
 
 distinguished from sale, 11. 
 GOODS, WARES AND MERCHANDISE. See The Statttteoi' Frauds 
 IN Respect to Sales. 
 
 what are they, 59. 
 
 whether inspection of, Is necessary to constitute acceptance, 68. 
 
 what constitutes acceptance of, 67, 114, 115. 
 
 what constitutes receipt of, 69. 
 
 acceptance and receipt of apart of the goods, etc., 70. 
 
 sale of specific goods, etc., unconditionally, 86. 
 
 sale of specific goods, etc., conditionally, 87. 
 
 sale of goods, etc., not specific, 88. 
 
 what constitutes a sufficient appropriation in gale of goods, etc., not 
 specific, 89. 
 
 delivery of goods, etc., 121. 
 
 payment in specific, 150. 
 
 sales of, to arrive, 214. 
 GRAIN ELEVATORS, 
 
 deposits in, distinguished from sale, 7. 
 GROWING CROPS. See Crops. 
 GUARANTY. See Warranty. 
 GUARDIANSHIP, 
 
 disability of all persons under, 26. 
 
 sale by guardian of ward's personal property, 254. 
 
 sales by guardian, 278. 
 
 H. 
 
 HIRING, 
 
 sale distinguished from lease or, 9. 
 HOUR, 
 
 of day for delivery, 99. 
 HUSBAND AND WIFE. See Parties. 
 
 husband's power to sell his wife's personal property, 255, 27-80. 
 
 752 
 
INDEX. 
 
 References are to Sections. 
 
 I. 
 
 IDIOTS. See Lunatics. 
 ILLEGALITY. See Illegal Sales. 
 ILLEGAL SALES, 
 
 general propositions, presumptions of legality, 290. 
 
 by what law is legality of salejdetermined, 291. 
 
 effect of partial illegality, 292. 
 
 effect of execution of illegal sales, 293. 
 
 sales for an unlawful purpose, when illegal, 29i. 
 
 sales illegal at common law, 295. 
 
 compounding of crimes and misdemeanors as a consideration, 296. 
 
 contracts with alien enemies and in aid of rebellion, 297. 
 
 bribery, 298. 
 
 lobbying, 299. 
 
 sales of public office and private recommendations, 300. 
 
 wagers, 301. 
 
 option sales, when illegal, 302. 
 
 contracts in restraint of trade, 303. 
 
 maintenance and champerty, 301. 
 
 offenses against morality, 305. 
 
 sales in violation of statute, 306. 
 
 sales of smuggled goods, 307. 
 
 Sunday sales, 308. 
 
 sales of intoxicating liquors, 309. 
 
 purchaser at illegal sale under execution, 314. 
 
 illegality of conditions, 218. 
 IMBECILES, 
 
 as parties to contracts of sale, 21. 
 IMPLIED WARRANTY. See Warranty. 
 INCORPOREAL PROPERTY, 59. 
 INFANTS, 
 
 disability of, 17. 
 
 liability for necessaries, 17. 
 
 contracts of, voidable not void, 18. 
 
 ratification of contracts by, 19. 
 
 disafflrraance of sale by, 2.0. 
 
 power of infants to execute chattel mortgage, 229. 
 
 power of Infant to appoint agent, 18. 
 INSANITY, 
 
 effect of, when unknown to other parties or party, 22. 
 
 as a defense, 21,229. 
 INSOLVENCY, 
 
 of buyer as affecting right of stoppage in transitu, 127, 135. 
 
 48 753 
 
INDEX. 
 
 Beferences are to Sections. 
 
 INSOLVENCY —Continued. 
 
 preferences by insolvents in transfer of property in payment of debtSj 
 when fraudulent, 175. 
 
 purchaser from a bankrupt or insolvent, 316. 
 INSPECTION, 
 
 right of rejection and inspection, 115, 114. 
 
 whether Inspection is necessary to constitute acceptance, 68. 
 
 implied warranty of quality — where there is and is not an oppor- 
 tunity for inspection of goods, 187. 
 INSTALLMENTS, 
 
 delivery by, 103, 209. 
 
 acceptance, when delivery by installments, 116. 
 
 payment by, 9. 
 
 sales with installments of payment, 210. 
 INTENTION. NOT TO PAY. See Fraudulent Sales. 
 INVOLUNTARY SALES, 
 
 including sales by legal process — general proposition as to involun- 
 tary alienation, 2S2. 
 
 sale by guardian of ward's personal property, 253. 
 
 husband's power to sell his wife's personal property, 254. 
 
 attachment and execution, 255. 
 
 judicial sales, what are, 256. 
 
 the general requirement of judicial and execution sales, 257. 
 
 who may make the sale, 258. 
 
 when sale must be public, 259. 
 
 notice of the sale, 260. 
 
 place of sale, 261. 
 
 sale in parcels, 262. 
 
 terms of sale, 263. 
 
 sale after return day, 264. 
 
 adjournment of the sale, 265. 
 
 JOINT-MAKERS, 
 
 liability of, for misrepresentation, 173. 
 JUDICIAL SALES, 
 
 retention of possession in, does not operate as fraud upon credit- 
 ors and subsequent purchasers, 84a. 
 
 judicial sales, what are, 266. 
 
 general requirements of judicial sales, 257. 
 
 judicial sales not within statute of frauds, 266, 
 
 who may make judicial sales, 258. 
 
 when must be public, 269. 
 754 
 
INDEX. 
 
 Beferences are to Sections. 
 
 JUDICIAL SALES — Continued. 
 
 notice in judicial sales, 260. 
 
 place of sale, 261. 
 
 sales in parcels, 262. . 
 
 terms of sale, 263. 
 
 adjournment of sales, 26B. 
 
 void judicial sales, 314. 
 JUS DISPONENDI, 
 
 reservation of, 85. 
 LEASE, 
 
 sale distinguished from, 8. 
 
 conditional sale disguised as lease, 203. 
 
 LEGAL HOLIDAYS, 
 
 when delivery should be made when last day is a legal holiday, 79. 
 LEGAL TENDER, 
 
 tender of payment must be made in, 140. 
 
 U. S. treasury notes as legal tender, 140. 
 
 payment made with, 143. 
 LICENSE, 
 
 of buyer to enter premises irrevocable, 97. 
 
 sale without, when void, 306. 
 LIEN. See Vendor's Lien. 
 
 mortgage in equity treated as a lien, 221. 
 
 mortgage distinguished from lien, 222. 
 
 mortgagor's power to create superior liens, 244. 
 
 auctioneer's lien on goods in possession, or purchase price for his 
 compensation, 287. 
 
 factor's lien, 317. 
 LOBBYING, 299. 
 LORD'S DAY. See Sunday. 
 LUNATICS, 
 
 as parties to contracts of sale, 21. 
 
 contracts for necessaries, 23. 
 
 ratiflcatiou of contracts, 24. 
 
 M. 
 
 MAIL, 
 
 communication by, 39. 
 
 payment by, 154. 
 MAINTENANCE AND CHAMPERTY, 304. 
 
 755 
 
INDEX. 
 
 References are to Sections. 
 
 MANUFACTURE, 
 
 sale distinguished from contract to manufacture and return, 6. 
 
 manufacturer's liability, 190. 
 MARKET OVERT, 186, 311. 
 MARRIAGE, 
 
 effect of on ante-nuptial contracts, 28. 
 MARRIED WOMEN, 
 
 contracts of, 27. 
 
 disability of, 27. 
 
 exceptions to their contractual disability, 29. 
 
 contracts of married women with separate estate, 30. 
 
 power of married women to execute chattel mortgages, 229. 
 MEASURE OF DAMAGES. See Damages. 
 
 MEMORANDU-M OR NOTE IN WRITING UNDER STATUTE OF 
 FRAUDS, 
 
 memorandum or note in writing required — time of execution, 
 72. 
 
 by whom it should be made, 73. 
 
 to whom addressed, 74. 
 
 the form — separate pieces of paper, 76. 
 
 what it should contain, 76. 
 
 right of auctioneer to sign, 78. 
 
 right of brokers to sign, 79. 
 
 broiler may make note, etc., 272. 
 
 power of auctioneer to make memorandum, etc., 286. 
 MERCHANDISE. See Goods, Wakes, &c. 
 MERCHANTABILITY, 
 
 Implied warranty of, 190. 
 
 goods must be merchantable independent of representations as to 
 quality, 214. 
 MINORS. See Infants. 
 
 MISREPRESENTATION. See Fraudulent Sales. 
 MISTAKE, 
 
 of fact, 35. 
 MONEY, 
 
 never a necessary, 17. 
 
 payment can only be made with 143. 
 MONTH, 
 
 meaning of, in computation of time, 99. 
 MORE OR LESS, 
 
 effect of such words, 102. 
 MORTGAGE. See Chattel Mortgage. 
 
 distinguished from sale, 10,204. 
 MUTUAL ASSENT. See Assent. 
 756 
 
INDEX. 
 
 References are to Sections. 
 
 5. 
 NECESSARIES, . 
 
 infant liable for, 17. 
 
 contracts of lunatics for, 23. 
 
 what are necessaries, 17. 
 NEGOTIABLE SECURITIES. See Notes; Bills of Exchange; Bills 
 
 OF. Lading. 
 NOMINAL DAMAGES. See Damages. 
 NOTES, 
 
 broker's bought and sold notes, 79. , 
 
 payment by bill or note when absolute, when conditional, 143, 146. 
 
 right of action suspended by taking bill or note In payment of debt, 
 U7. 
 
 duties of holder of bill or note taken in payment, 148. 
 
 payment in counterfeit or worthless bills, 149. 
 
 what notes are 'legal tender, 140. 
 NOTICE, 
 
 as a condition precedent, 211. 
 
 what notice necessary in cases of sales on trial and return, 213. 
 
 notice of repudiation of contract in case of breach of condition, 216. 
 
 filing of chattel mortgage as constructive notice, 230. 
 
 what notice necessary when sale of mortgaged property by the 
 mortgagee, 248. 
 
 notice in judicial and execution sales, 260. 
 
 notice in adjournments of involuntary sales, 265. 
 
 notice in sales by pledgees, 274. 
 
 notice of conditions in auction sales, 284. 
 
 must buy without, to be bonaftde purchaser, 329. 
 
 notice of place of resale by seller, 334. 
 
 0. 
 
 OFFER, 
 
 effect of variance from, 34, 35. 
 
 counter-proposition works rejection of original offer, 36. 
 
 right to retract offer, 40. 
 
 offer to sell, 33. 
 OFFSET. See Set-off. 
 OPTION, 
 
 contract for, when binding, 41. 
 OPTION SALES, 
 
 when illegal, 302. 
 ORAL WARRANTIES. See Warranties. 
 
 757 
 
INDEX. 
 
 Beferences are to Sections. 
 
 P. 
 
 PAROL EVIDENCE. See Evidence. 
 PARTIES, 
 
 who may be parties to contract of sale, 16. 
 
 disability of infants — liability for necessaries, 17. 
 
 infant's contracts voidable, not void, 18. 
 
 ratification of infant's contracts, 19. 
 
 disaffirmance of sale by infants, 20. 
 
 lunatics and imbeciles as, 21. 
 
 effect of insanity when unknown to other party, 22. 
 
 lunatic's contracts for necessaries, 23. 
 
 ratification of lunatic's contracts, 24. 
 
 contracts of drunken persons, 25. 
 
 the disability of all persons under guardianship — spendthrifts, 26. 
 
 disability of coverture — contracts of married women, 27. 
 
 effect of marriage on ante-nuptial contracts, 28. 
 
 exceptions to married women's contractual disability, 29, 
 
 contracts of married women with a separate estate, 30. 
 
 note in writing or memorandum under statute of frauds should con- 
 tain names of parties, 76. 
 
 signature of party to be charged under statute of frauds, 77. 
 
 transfer of title governed primarily by intention of parties, 83. 
 
 mistake as to, 35. 
 
 damage to party deceived, 162. 
 
 who may make a chattel mortgage — parties under disability, 229. 
 PARTNERS, 
 
 liability of, for misrepresentation of agent, 173. 
 PAYMENT AND TENDER,, 
 
 effect of payment and tender, 139. 
 
 what constitutes a sufficient or legal tender, 140. 
 
 who may make payment, 141. 
 
 to whom payment may be made — authority of agents to receive 
 payment, 142. 
 
 payment made with what, 143. 
 
 payment by note or bill, when absolute or conditional, 144. 
 
 payment by checks, 145. 
 
 presumptions in respect to absolute and conditional payment, how 
 rebutted, 146. 
 
 right of action suspended by taking bill or note in payment of 
 debt, 149. 
 
 duties of holder of bill or note taken in payment, 148. 
 
 payment in counterfeit or worthless bills, 149. 
 758 
 
INDEX. 
 
 References are to Sections. 
 
 PAYMENT AND TENDER — Continued. 
 
 payment in specific articles, 150. 
 
 payment by set-off, 151. 
 
 appropriation of payments, 162. 
 
 payment on Sunday, 153. 
 
 payment by mail, 154. 
 
 earnest or part payment, 71. 
 
 prepayment of price, 85, 86. 
 
 tender of price, 121. 
 
 effect of partial payment, 128. 
 
 payment by installments, 9. 
 
 payment concurrent act with delivery, 93. 
 
 where there is no agreement for future payment sale presumed to be 
 for cash, 98. 
 
 fraudulent intent not to pay, 170. 
 
 prepayment as a condition, 206. 
 
 successive payment, 210. 
 
 sales with installments of payment, 210. 
 
 effect of tender and payment on mortgage, 246. 
 
 broker not authorized to receive payment, 272. 
 
 factor has the right to demand and receive payment, 273. 
 
 when auctioneer authorized to receive payment, 283. 
 PHONOGRAPH, 
 
 communication by, 39. 
 PLACE, 
 
 of delivery, 96, 132, 207. 
 
 condition as to time and place of performance, 208. 
 
 validity of chattel mortgage determined by law at place of con- 
 tract, 239. 
 
 place of involuntary sales, 261. 
 
 place of resale, 334. 
 PLEDGES, 
 
 sale distinguished from, 4. 
 
 mortgages distinguished from, 223. 
 
 factor has not the power to pledge goods in his possession in the 
 capacity of factor, 273. 
 
 sales by pledgees, 274, 316. 
 PLEDGEE. See Pledges. 
 POTENTIAL EXISTENCE. See The Thing Sold. 
 
 sale of thing in, 52. 
 
 mortgage of property in, 231. 
 POWER OF ATTORNEY, 
 
 by Infant, 18. 
 PREPAYMENT. See Payment and Tender. 
 
 759 
 
INDEX. 
 
 References are to Sections. 
 
 PREPAYMENT OF PRICE. See The Price. 
 PRICE. See The Price. 
 PRINCIPAL AND AGENT. See Agent. 
 PROOF. See Burden of Proof. 
 PROPERTY IN GOODS, 
 
 incorporeal property, 59. 
 PROVISIONS, 
 
 implied warranty in sales of, 191. 
 PUBLIC HOLIDAYS. See Legal Holidays. 
 PUFFERS AT AUCTION SALES. See Auction Sales. 
 PURCHASER. See Rights of Bona Fide Purchaser. 
 
 B. 
 
 RATIFICATION, 
 
 of contracts by infants, 19. 
 
 of contracts by lunatics, 24. 
 
 of contracts by married women, 27. 
 
 ratification of warranty by principal, 183, 268. 
 
 ratification of Sunday sales, 308. 
 RECEIPTS, 
 
 warehouse receipts, etc., 320. 
 
 bill of lading as, 821. 
 RECEIPT OF SECURITY, 120. 
 RECEIPT, UNDER STATUTE OP FRAUDS, 
 
 effect of compliance with requirement of acceptance and receipt, 63. 
 
 burden of proof of acceptance and receipt, 64. 
 
 acceptance and receipt by agent, 65. 
 
 acceptance and receipt distinguished, 65, 114, 115. 
 
 what constitutes a receipt of goods, etc., 69. 
 
 receipt of part of the goods, etc., 70, 34. 
 REJECTION, 
 
 right of, 115. 
 
 when right of, barred by acceptance, 116. 
 REMEDIES FOR THE BREACH OF THE CONTRACT OF SALE, 
 
 general statement, 381. 
 
 seller's remedies in executed contracts — measure of damages, 332. 
 
 seller's remedies in personam in executory contracts — measure of 
 damages, 833. 
 
 seller's remedies against goods — his resale of goods, 334. 
 
 buyer's remedies for the seller's breach of contract — non-delivery of 
 the proper goods — measure of damages, 336. 
 
 buyer's claim to special or consequential damages, 336. 
 
 buyer's action for specific performance, 337. 
 760 
 
INDEX. 
 
 Beferences are to Sections. 
 
 REPRESENTATION. See Fraudulent Sales. 
 REPURCHASE, 
 
 sale with right to, 204. 
 
 chattel mortgage distinguished from conditional sale with the right 
 to repurchase, 224, 321, 326. 
 RESALE, 
 
 effect of, on right of stoppage in transitu, 134. 
 
 attempted resale as proof of acceptance, 115. 
 
 seller's resale, 334. 
 RESCISSION, 
 
 of sales, 108. 
 
 right of, in case of fraud, 163. 
 
 whether consideration must be returned before minor can rescind, 
 20. 
 
 right of rescission when delivery by installment, 209. 
 
 power of agent to rescind, 116. 
 RETRACTION, 
 
 right of, 40. 
 
 by mail, 41. 
 
 of acceptance, 42. 
 RIGHTS OF BONA FIDE PURCHASERS, 
 
 the general doctrine, 310. 
 
 sales in " marfcet overt," 311. 
 
 possession how far evidence of ownership, 312. 
 
 purchaser of stolen and lost goods, 313. 
 
 purchaser at an illegal sale — void judicial sales, 314. 
 
 purchaser from a bankrupt or insolvent, 315. 
 
 sale by bailees in general — sale by pledgee, 316. 
 
 delivery of goods to bailee for sale — sale by factors — factor's acts, 
 317. 
 
 documents of title, 318. 
 
 certificates of stock, 319. 
 
 warehouse receipts, 320. 
 
 definition and nature of bills of lading;, 321. 
 
 form and contents of the bills of lading, 322. 
 
 transfer of bill of lading — its negotiability, 323. 
 
 demand, when necessary, 324. 
 
 purchase from one having a voidable or defeasible title, 325. 
 
 sales upon condition subsequent and precedent, 325. 
 
 purchaser from the mortgagee of a chattel mortgage, 326. 
 
 purchaser from fraudulent vendee, 327. 
 
 purchaser of vendor in fraud of creditors, 328 . 
 
 who are bona fide purchasers, 329. 
 
 761 
 
INDEX. 
 
 Seferenccs are to Sections. 
 
 S. 
 
 SALES. See Fraudulent Sales ; The Statute or Frauds in Respect 
 TO Sales; Conditional Sales; Auction Sales; Involuntary 
 Sales, Including Sales by Legal Process ; Illegal Sales. 
 
 sale defined, 1. 
 
 elements of the contract of sale, 2. 
 
 sale distinguished from bailment, 3. 
 
 sale distinguished from pledges, i. 
 
 sale and return, distinguished from bailment with the right of pur- 
 chase, 6. 
 
 sale distinguished from contract to manufacture and return, 6. 
 
 sale distinguished from depositum — warehouses and grain eleva- 
 tors, 7. 
 
 sale distinguished from consignment, 8. 
 
 sale distinguished from lease or hiring, 9. 
 
 sale distinguished from mortgage, 10. 
 
 sale distinguished from gift, 11. 
 
 sale distinguished from exchange or barter, 12, 
 
 sale distinguished from assignment, 13. 
 
 infant's disaffirmance of, 20. 
 
 who may be parties to contract of, 16. ..- 
 
 lunatics and imbeciles as parties to contract of, 21. 
 
 sale of what has ceased to exist, 60. 
 
 sale of thing not yet existing or not yet owned by vendor, 61. 
 
 sale of a thing in potential existence, 52. 
 
 sale of specific goods, etc., unconditionally, 86. 
 
 sale of specific goods, etc., conditionally, 87. 
 
 sale of goods not specific, 88. 
 
 what constitutes a sufficient appropriation in sale of goods, etc., not 
 specific, 89. 
 
 rescission of sale, 108. 
 
 sales on credit, 120. 
 
 sales at auction (see auction sales.) 
 
 contract of sale distinguished from contract for work and labor, and 
 materials found, 68. 
 
 executed and executory contract of sale distinguished, 82, 56. 
 
 sales by samples, 188. 
 
 sales by description, 189. 
 
 sales of provisions, 191. 
 
 sales on trial, 212, 213. 
 
 sales or return, 212, 213. 
 
 foreclosure of mortgage, or mortgagor's equity of redemption under 
 power of sale, 249, 260. 
 762 
 
INDEX. 
 
 Keferences are to Sections. 
 
 SALES BY AGENTS AND PERSONAL REPRESENTATIVES, 
 
 the general principles of agency as applied to sales of personal 
 property, 268. 
 
 power to sell, when implied — scope of power, 269. 
 
 agent cannot act for himself in the same transaction, 270. 
 
 brokers and factors or commission merchants distinguished, 271. 
 
 the powers of the broter, 272. 
 
 the powers of the factor or commission merchant, 273. 
 
 sales by pledgees, 274. 
 
 sales by master of vessel, 275. 
 
 sales by trustees, 276. 
 
 sales by executors and administrators, 277. 
 
 sales by guardians, 278. 
 SAMPLES, 
 
 acceptance and receipt by, 70. 
 
 sales by, 188. 
 
 implied warranty of conformity of goods to sample, 197, 215. 
 
 power of broker to sell by, 272. 
 " SAY ABOUT," 
 
 meaning of term, 102. 
 SECURITY, 
 
 receipt of, 120. 
 SELLER. See Vendor. 
 SET-OFF, 
 
 payment by, 151. 
 SIGNATURE OF PARTY UNDER THE STATUTE OF FRAUDS, 
 
 signature of party to be charged, 77. 
 
 agent duly authorized to sign, 78. 
 
 principal's name need not be signed, 80. 
 
 formality of execution — signing and sealing of mortgage, 236. 
 SILENCE, 
 
 when it amounts to fraud, 167, 159. 
 SPECIAL OR CONSEQUENTIAL DAMAGE. See Damage. 
 SPENDTHRIFTS, 
 
 disability of, 26. 
 SOUNDNESS. See Wakranty. 
 STATUTE OF FRAUDS. See The Statute of Frauds in Respect 
 
 TO Sales. 
 STATUTORY LIENS, 123. 
 STOPPAGE IN TRANSITU, 
 
 general statement and definition, 125. 
 who may exercise the right, 126. 
 the conditions of exercise of the right, 127 
 the goods must be unpaid for — effect of partial payment, 128. 
 
 763 
 
INDEX. 
 
 References are to Sections. 
 
 STOPPAGE IN TRANSITU— Continued, 
 when does the transit begin, 129. 
 when does the transit end, 130. 
 delivery at an intermediate point, 131. 
 delivery to agent at place of destination with provision for further 
 
 transportation, 182. 
 delivery by vendor to ship chartered by vendee — vendee acting as 
 
 carrier, 133. 
 effect of resale of. goods on right of stoppage in transitu, 134. 
 insolvency of the buyer, 135. 
 mode of exercising the right, 186. 
 effect of stoppage of goods on rights of carrier, 137. 
 bona Me transfer of bUI of lading destroys right of, 323, 124. 
 SUNDAY, 
 
 payment on, 153. 
 Sunday sales, 308. 
 
 T. 
 
 TELEGRAPH, 
 
 communication by, 39. 
 TELEPHONE, 
 
 communication by, 39. 
 TENDER. See Payment and Tender. 
 THE PRICE, 
 
 necessity of price — indirect stipulation of the price, 45. 
 
 determination of price referred to valuers, 4C. 
 
 when price is provided by implication of law, 47. 
 
 note or memorandum under statute of frauds should contain the 
 price, 76. " 
 
 prepayment of, 85, 86, 87. 
 
 tender of the price, 121. 
 
 dealer's statements as to the price, 166. 
 
 goods invoiced to consignee at a price, whether sale or consignment, 8. 
 
 essential element of a sale, 2. 
 
 consideration of sale must be price or money, 12. 
 
 a fixed price criterion for determining whether transaction is a sale 
 or exchange, 18. 
 
 the vendor's lien only permitted to secure payment of, 119. 
 
 tender of payment does not discharge obligation to pay price, 139. 
 
 prepayment of, condition precedent in cash sales, 207. 
 
 payment of, by installment, 210. 
 
 apportionment of price in illegal sales, 292. 
 
 as to waiver of price, 325. 
 
 seller's action for recovery of, 332. 
 764 
 
INDEX. 
 
 References are to Sections. 
 
 THE PRICE — Continued. 
 
 non-payment of, prima fade evidence of retention of vendor's lien, 69. 
 buyer entitled to delivery without payment of price wlien sale is on 
 
 credit, 93. 
 THE STATUTE OF FRAUDS IN RESPECT TO SALES, 
 general provision and effects, 65. 
 
 executory and executed contracts of sale distinguished, 66. 
 statute applies to all forms of sales — auction sales, 57. 
 contracts of sale distinguished from contracts for work and labor 
 
 done, and material found, 58. 
 what are goods, wares and merchandise, 69. 
 incorporeal property, fixtures — annual and perennial crops, 69. 
 fructus naturales, 59. 
 statutory limit of value, 60. 
 when does the contract for the sale of goods reach or exceed the 
 
 limit, 61. 
 the conditions of validity under the statute of Jfrauds, 62. 
 effect of compliance with requirement of acceptance and receipt — 
 
 limit as to time, 63. 
 proof and burden of proof of acceptance and receipt, 64. 
 acceptance and receipt by agent, 66. 
 acceptance and receipt distinguished, 66. 
 what acts constitute acceptance, 67. 
 
 whether inspection of goods is necessary to constitute acceptance, 68. 
 conditional acceptance, 68. 
 what constitutes a receipt of the goods, 69. 
 acceptance and receipt of part of the goods, samples, 70. 
 earnest or part payment, 71. 
 memorandum or note in writing i-equired, 72. 
 time of execution, 72. 
 by whom should note be made, 73. 
 undisclosed principals, 73. 
 to whom note should be addressed, 74. 
 the form of the memorandum, separate pieces of paper, 75. 
 what the memorandum s'.:ould contain, parties, subject-matter, terms, 
 
 consideration, price, 76. 
 signature of the party to be charged, 77. 
 agent duly authorized, 78. 
 broker's bought and sold notes, 79. 
 principal's name need not be signed, 80. 
 judicial sales not within the statute of frauds — excution sales are, 
 
 266. 
 creditor may apply payment to debt that cannot be enforced by reason 
 
 of statute of frauds, 162. 
 
 7()5 
 
INDEX. 
 
 References are to Sections. 
 
 THE STATUTE OF EEAUDS IN RESPECT TO SALES — Continued, 
 the statute of frauds in respect to auction sales, 286. 
 sale of accounts within statute, 69, 
 THE THING SOLD, 
 
 saleof what has ceased to exist, 50. 
 
 sale of thing not yet existing or not yet owned by vendor, 51. 
 sale of a thing in potential existence, 52. 
 the sale in equity, 53. 
 THE TRANSFER OF TITLE. See Title; Rights of Boka Fide 
 
 Purchasers. 
 executory and executed contracts of sale — distinguished, 82. 
 importance of the question, 82. 
 
 the transfer of title governed primarily by intention of the parties, 83. 
 delivery, when essential to transfer of title, 84. 
 delivery without transfer of title — reservation of jus disponendi — 
 
 prepayment of price, 85. 
 in sale of specific goods unconditionally, 86. 
 in sale of specific goods conditionally, 87. 
 in sale of goods not specific, 88. 
 what constitutes a suflScient appropriation In sales of goods not 
 
 specific, 89, 93. 
 delivery, how far essential to transfer of title, as against creditors and 
 
 subsequent purchasers, 81a. 
 what a sufficient delivery to transfer title, 94, 95. 
 when title passes in case of mortgage, 10. 
 title does not pass where acceptance varies from offer, 34, 35. 
 as a general rule title does not pass until goods are ready for deliv- 
 ery, 87. 
 goods sold subject to condition precedent, title does not pass until 
 
 performance of condition, 87. 
 there can be no absolute transfer of title without delivery, 112. 
 vendee's creditors have interest in goods as soon as title has passed 
 
 to him, 176. 
 where payment of price is by installment, title does not ordinarily 
 
 pass until price is paid in full, 21 0. 
 in sales on trial title remains in vendor, 213. 
 in sales or return, title is transferred to vendee, 213. 
 conditional transfer of title essential to a chattel mortgage, 222, 223. 
 purchaser from one having a voidable or defea.sible title, 325. 
 TIME, 
 
 limit as to, 63. 
 
 of execution of note in writing, or .memorandum under statute of 
 
 frauds, 72. 
 of delivery, 98, 207. 
 766 
 
INDEX. 
 
 References are to Sections. 
 
 TIME — Continued. 
 
 computation ol time — division of time — liour of tlie day, 99. 
 
 reasonable time — forthwitii — as soon as possible, 100. 
 
 entire memorandum need not be made at same time, 75. 
 
 memorandum must contain stipulations as to time of performance, 76. 
 
 condition as to time and place of performance, 208. 
 TITLE. See The Transfer of Title. 
 
 warranty of title and quality, 182. 
 
 express warranty of title, 184. 
 
 implied warranty of title, 185. 
 
 how and when the warranty of title is broken, 186. 
 TRANSIT, 
 
 as affecting right of stoppage in transitu, 127. 
 
 when does It begin, 129. 
 
 when does it end, 130. 
 
 U. 
 
 USAGE. See Custom. 
 
 T. 
 
 VALUE, 
 
 statutory limit of, 60, 61. 
 
 dealer's statement as to, 166. 
 
 anything given in earnest must have value, 71. 
 VALUERS, 
 
 determination of price referred to, 46. 
 VENDEES, 
 
 rights of, in case of rescission of sale, 108. 
 
 delivery by vendor to ship chartered by vendee, vendee acting as 
 carrier, 133. 
 
 when entitled to delivery, 94. 
 
 what a sufficient delivery to, 96. 
 
 when common carrier agent of, 95. 
 
 license to enter premises irrevocable, 97. 
 
 vendees, when obliged to accept, 113. 
 
 duties in acceptance of goods, 113. 
 
 when entitled to return goods, 116. 
 
 fraudulent devices of buyers, 168. 
 
 concealment of material facts by buyer, 171. 
 
 expression of opinion by buyer, 172. 
 
 conflicting claims ol vendor's and vendee's creditors, 177. 
 
 conditions precedent to be performed by purchaser, 206. 
 
 buyer's action for specific performance, 337. 
 
 purchaser from vendee with voidable or defeasible title, 325. 
 
 purchaser from fraudulent vendee, 327. 
 
 767 
 
INDKX. 
 
 Keferences are to Sections. 
 
 VENDEES — Continued, 
 
 buyer's remedies for scjller's breach of contract, 335. 
 
 buyer's claim to special or consequential damage, 336. 
 VBNDOES. See Vendor's Lien. 
 
 Sale of thing not yet owned by, 52. 
 
 Tvhen and how far It is vendor's duty to make delivery, 9i, 113. 
 
 delivery by vendor to ship chartered by vendee, vendee acting as 
 carrier, 133. 
 
 when common carrier agent of, 95. 
 
 effect of vendor's retention of possession, 84a, 106. 
 
 material representations by seller, 164. 
 
 seller's expression of opinion, 166. 
 
 seller's concealment or silence when a fraud, 167. 
 
 preparation of goods by vendor for delivery as condition precedent, 
 205. 
 
 seller's remedies in executed contracts, 332. 
 
 seller's remedies in personam in executory contracts, 233. 
 
 seller's remedies against the goods, 334. 
 
 conflicting claims of vendor's and vendee's creditors, 176. 
 
 fraud on creditors on account of vendor's retention of posses- 
 sion, 177. 
 VENDOK'S LIEN. See Lien. 
 
 definition and general explanation, 119. 
 
 how waived — sale on credit — receipt of security, 120. 
 
 lien how lost — tender of price — delivery of goods, 121. 
 
 what delivery sufficient to destroy lien, 122. 
 
 statutory liens, 123. 
 
 W. 
 
 WAGEE, 301, 302. 
 WAIVER, 
 
 of vendor's lien, 120. 
 
 of conditions, 217. 
 
 as to waiver of price, 325. 
 WAREHOUSE, 
 
 deposits in, distinguished from sale, 7. 
 
 delivery to warehouseman, 96a. 
 
 warehouse receipts, 320. 
 WARES. See Goods, Wares, etc. 
 WARRANTY, 
 
 warranty defined and distinguished from other liabilities, 180, 202. 
 
 the consideration of a warranty, 181. 
 
 kinds of warranties — express and implied — of title and quality, 182. 
 
 power of agent to bind principal by warranties, 183, 268. 
 768 
 
INDEX. 
 
 Keferences are to Sections. 
 
 WABEANTY — Continued. 
 
 express warranties oJ title, 184. 
 
 implied ■warranty of title, 185. 
 
 how and wlien the warranty of title is broken, 186. 
 
 Implied warranty of quality, when there is i-nd is not an opportunity 
 for inspection of goods, 187. 
 
 sales by sample, 188, 215. 
 
 identity of kind — sales by description, 189, 215. 
 
 'implied warranty of merchantability— manufacturer's liability — fit- 
 ness for a particular purpose, 190. 
 
 implied warranty in sales of provisions, 191. 
 
 effect of usage on implied warranty of quality, 192. 
 
 forms of express warranties — affirmations and expressions of opin- 
 ions — express warranties distinguished from fraud, 193. 
 
 interpretation of warranties — unsoundness in animals — warranties 
 as to future condition, 194. 
 
 express warranties in relation to patent or obvious defects, 195. 
 
 written and oral warranties, 196. 
 
 remedies for the breach of warranty, 197. 
 
 warranty in case of executory sale of goods to arrive, 214. 
 
 ratification of warranty, 268. 
 
 broker may warrant the correspondence of bulk with sample, 272. 
 
 warranty by executor or administrator, 277. 
 
 warranty by auctioneer, 283. 
 WIFE. See Husband AND Wife. 
 WORDS. 
 
 effect of words of indefinite estimate, 102. 
 
 construction of words used in warranty, 194. 
 
 words necessary to create a conditional sale, 201. 
 
 49 769 
 

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