ni/i) 
 
CORNELL UNIVERSITY LIBRARY 
 
 3 1924 085 5 
 
Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924085514606 
 
^^fli^iL^o^ Itm^.^ -AB. ipi 
 
A TREATISE 
 
 ON THE LAW OF 
 
 PERSONAL PROPERTY 
 
 BY 
 
 HORACE R SMITH, LL. D. 
 
 L^TX Dsiif or the Ai.BAirz h\yr Sohool 
 
 SECOND EDITION 
 
 BHVISBD AND ENLABGEli 
 
 BT 
 
 GEORGE LAWYER 
 
 OF THE jLUaAKT BAB 
 
 LxcnntsB on the Law or CIontbacts akd Fessonal Pbofebtt 
 IN THE Albany Law School 
 
 CHICAGO 
 
 T. H. FLOOD AND COMPANY. 
 Law Book Publishers 
 1908 *' 
 
Entered according to act of Congress, in the year eighteen hundredud Binety-thraa^ taj 
 
 HOEA.CE E. SMITH, 
 
 In the office of the Librarian of Congress, at Washington, D. OL 
 
 COPYEIQHT, 1908, 
 
 BY 
 
 JEANIE OLIVER SMITH. 
 
 STATE JOURNAL PRLNTrfTO COMPAMT, 
 
 Printers akd Stbiieotyper% 
 
 uadisoh, wis. 
 
PREFACE. Ul 
 
 PREFACE. 
 
 In the early history of our law under the English feudal 
 system, personal property was regarded as of small conse- 
 quence in comparison with real estate. The latter was the 
 measure of wealth, and the gauge of social and political 
 rank. It is quite different at present with the relative im- 
 portance of the two kinds of property, especially in the 
 United States. The great change in our country is the re- 
 sult of various causes; among which may be mentioned as 
 prominent, the form and genius of our government, the 
 character of our institutions, and the allodial system of 
 land ownership. The last half century has witnessed an 
 increase in new and varied industries, an enlargement and 
 extension of commerce and manufactures, little less than 
 marvelous, and marked changes in sociological conditions, 
 all contributing to the volume and great importance of the 
 law of personal property. The cultivation of this depart- 
 ment of jurisprudence has not been equal to its demands, 
 as measured by the importance of the subject, and its var- 
 ied application to human relations and affairs. When this 
 work was undertaken, the only American publication treat- 
 ing exclusively upon the subject of Personal Property, 
 known to the author, was the learned and elaborate work 
 of Mr. Schouler, in two volumes; while on most branches 
 of the law there were numerous text-books at command of 
 the profession. A practice of many years in the profes- 
 sion, supplemented by ten years' experience with students 
 at the Albany Law School, impressed the writer with the 
 conviction that a treatise on this subject, differing some- 
 
IV PREFACE. 
 
 what in character and aim from any then before the pub- 
 lic, might be a useful addition to our legal literature. Un- ' 
 der this conviction, and with the view of meeting what 
 seemed to be a want, the following pages were prepared. 
 The plan and aim of the work is, to bring the leading and 
 essential principles of the law of personal property within 
 a narrow compass, and in such a manner as to serve the 
 following purposes : First, to furnish the student with the 
 means of acquiring an adequate and discriminating knowl- 
 edge of the subject, without unnecessary and confusing dis- 
 cussion; secondly, the practitioner with a ready and relia- 
 ble solution of questions arising iu the exigencies of his 
 professional business, when time is wanting for extended 
 research ; and, third, to meet the wants of those outside the 
 legal profession, who may desire to obtain a knowledge of 
 the general principles of the subject, as a qualification for 
 business, or an essential to a libe*al education, but are un- 
 able to devote much time to the study. In carrying out his 
 plan, the writer has endeavored to state the rule or prin- 
 ciple of law on points in question, as settled by the weight 
 of authority, in a manner as clear and succinct as practi- 
 cable, without entering at large upon phUosophieal discus- 
 sion, or marshaling in the text an array of conflicting cases. 
 Yet, sufficient references to decided cases, and standard 
 text-books, have been furnished to, facilitate an exhaustive 
 examination of questions when necessary or desirable. 
 Special care has been taken, however, to formulate defini- 
 tions, and state principles, with such perspicuity and relia- 
 ble accuracy as to render extended research unnecessary. 
 
 The author might have constructed a more elaborate and 
 imposing work with much less cost of time, thought, and 
 labor; but the product, he believes, would have been less 
 intrinsically valuable for the purpose intended. If he has 
 
PREFACE. V 
 
 succeeded to a reasonable extent in realizing his purpose, 
 the reader will find in one small volume aU the leading and 
 essential principles of this department of law, so system- 
 atized and presented as to be easily available for study or 
 use. The author his not the vanity to think that his work 
 is free from imperfections ; but he hopes that it may prove 
 useful to the classes for which it is designed, and trusts, 
 that it wiU be received with considerate kindness by a lib- 
 eral profession. 
 
PREFACE TO THE SECOND EDITION. 
 
 Nearly fifteen years have elapsed since the first edition 
 of this work was published. By statute and by decision 
 the rules applying to certain branches of the law of per- 
 sonal property have been so materially modified or ex- 
 tended that the value of the work as a present authority 
 necessitated an enlargement and revision. 
 
 The excellent plan and arrangement adopted by Mr. 
 Smith have been retained and changes have been made 
 only where unavoidable for a proper presentation of the 
 subject. 
 
 Many recent decisions in explanation or illustration of 
 the various rules and principles have been collected and 
 cited, with especial reference to such cases as may have 
 application to those portions of the law concerning which 
 authorities have not been uniform. 
 
 It is believed that this edition may be found of present 
 assistance, both to student and practitioner, in the knowl- 
 edge and application of the law of personal property. 
 
 Albany, N. Y., October 31st, 1907. G. L. 
 
 b 
 
TABLE OF CONTENTS. 
 
 CHAPTER I. 
 
 INTRODUCTORY; DEFINITION AND USES OF THE WORD 
 PROPERTY; GENERAL CLASSIFICATIONS. 
 
 PAGK. 
 
 § 1. Definition of the term, "property" 1 
 
 2. Uses of the term 2 
 
 3. Real, and personal, property 2,3 
 
 4. Absolute, and qualified, property 3 
 
 6. Limitations of absolute ownership 3, 4 
 
 CHAPTER II. 
 
 CHARACTERISTICS OF PERSONAL PROPERTY. 
 
 S 6. Mobility 5 
 
 7. Change from personal to real, and vice versa 5,6 
 
 8. Duration of the time of enjoyment 6 
 
 CHAPTER III. 
 
 IRREGULAR SPECIES OF PROPERTY. 
 I. Fixtures, 
 
 i 9. What are fixtures 7,8 
 
 10. Rules for guidance 8,9 
 
 11. Between what parties 10 
 
 12. Time of removal 10, 11 
 
X TABLE OF CONTENTS. 
 
 II. EmMements. 
 
 PAQE. 
 
 13. What are emblements 12 
 
 14. What products the tenant may remove 12,13 
 
 15. Who, and when, entitled to emblements 13-15 
 
 16. Incidents 15 
 
 III. Heir-looms. 
 
 § 17. Character, and law of, defined 16,17 
 
 IV. Manure. 
 
 18. When real, and when personal, property 17,18 
 
 v. Church Furniture. 
 
 19. Law of this species of property 18-20 
 
 VI. Mortuary Property. 
 
 20. Kinds, legal rules, and burial rights 20,21 
 
 CHAPTER IV. 
 
 NOMENCLATURE, AND SUBORDliSTATB DIVISIONS OP PER- 
 SONAL PROPERTY. 
 
 § 21. Chattels, real, and personal 22, 23 
 
 22. Choses in possession; choses In action 23,24 
 
 23. Estate, real, and personal 24-26 
 
 24. Goods, wares, merchandise, effects, credits 26,27 
 
 25. Personal property in expectancy 27, 28 
 
 CHAPTER V. 
 
 PERSONAL PROPERTY, HOW HELD, OR OWNED. 
 
 S 26. Joint owners 29-31 
 
 27. Ownership in common 31-34 
 
 28. Part-owners of ships 34-35 
 
 29. Partners , 35-38 
 
 30. Corporations ' 38-42 
 
 31. Joint stock companies 42-45 
 
TABLE OP CONTENTS. Xl 
 
 CHAPTER VI. 
 MODES OF ACQUIRING TITLE TO PERSONAl. PROPERTY. 
 
 FAOE. 
 
 I S2. Modes of acquiring title classified, 46. 47 
 
 First. By original acquisition, embracing: 
 
 1. Occupancy, including: 
 
 (a) Goods taken by capture in ■war; 
 
 (b) Goods casually lost by the owner, and 
 unreclaimed, or designedly abandoned; 
 
 (c) Waifs; and 
 
 (d) Reclamation of animals ferw naturx. 
 
 2. Accession, including: 
 
 (a) Fruits of the earth produced naturally 
 or by human Industry; 
 
 (b) The increase of animals; 
 
 (c) Materials of one person united to the 
 materials of another; and 
 
 (d) Confusion of goods. 
 
 Second. Transfer by act of law, embracing: 
 
 1. Forfeiture; 
 
 2. Succession; ^ 
 
 3. Judgment; 
 
 4. Intestacy; 
 
 5. Insolvency; and 
 
 6. Marriage. 
 
 Third. Transfer by act of the parties, Including: 
 
 1. Gifts inter vivos; 
 
 2. Gifts causa mortis; 
 
 3. Title by will or testament; 
 
 4. Sales; 
 
 5. Indorsements; 
 
 6. Assignments; and 
 
 7. Bailments. 
 
 CHAPTER VII. 
 TITLE BY ORIGINAL ACQUISITION. 
 I 33. Occupancy, the first known method of acquiring 
 
 title *8-51 
 
HI TABLE OF CONTENTS. 
 
 PAGE. 
 
 34. Goods taken by capture in war 51-53 
 
 35. Goods lost or abandoned 64-57 
 
 36. Waifs 57 
 
 37. Reclamation of animals /erop natures 58-60 
 
 38. Title by accession 60,61 
 
 39. Fruits of the earth 61 
 
 40. Increase of animals 61, 62 
 
 41. Materials of one person united to the materials of 
 
 another 62-65 
 
 42. Products of intellectual labor 66 
 
 43. Patents for inventions and designs 66-68 
 
 44. Essentials of a patentable invention, etc 68-71 
 
 46. Mode of obtaining, and conditions, of a valid patent 72-74 
 
 46. Other points In the law of patents 74-76 
 
 47. Copyright 76-78 
 
 48. How to secure the statutory right 78-81 
 
 49. Essentials to copyright 81-84 
 
 60. Remedies for infringement 84, 85 
 
 51. Letters from one correspondent to another 85-87 
 
 52. Lectures 87-89 
 
 63. Trade-marks 89-97 
 
 64. A common law right 90, 91 
 
 66. What may constitute a trade-mark 91, 92 
 
 56. By whom acquired 92, 93 
 
 67. Freedom from fraud 93, 94 
 
 58. How acquired 94, 95 
 
 59. Infringement , 95, 96 
 
 60. Remedies for Infringement 96, 97 
 
 CHAPTER VIII. 
 
 THE SECOND GENERAL MODE OF ACQUIRING TITLE TO 
 PERSONAL PROPERTY— TRANSFER BY ACT OF LAW. 
 
 § 61. Special modes included in this division 98 
 
 I. Forfeiture. 
 
 62. Definition, and examples 98, 99 
 
 63. England, and United States 99 
 
TABLE OF CONTENTS. XIU 
 
 FAGK. 
 
 64. "When title passes 99,100 
 
 65. Forfeiture odious lOO 
 
 II. Succession. 
 
 66. Deflnition, and kinds 100,101 
 
 67. Common law succession , . . . 101, 102 
 
 III. Judgment. 
 
 68. Definition 102,103 
 
 69. Judgments ■which transfer title 103-105 
 
 IV. Intestacy. 
 
 70. Deflnition, history, and incidents 105-108 
 
 V. Insolvency. 
 
 71. Meaning of the terms "Insolvency" and "bank- 
 
 ruptcy" , 108,109 
 
 72. Distinction between bankrupt, and insolvent, laws 109,110 
 
 73. General purposes, and effect, of insolvent laws. . . . 110, 111 
 
 74. United States bankrupt, and insolvent, laws 111,112 
 
 VI. Marriage. 
 
 75. Transfer of chattels by marriage 113 
 
 76. As to the wife's choses in action 113,114 
 
 77. No imjust discrimination against the wife 114, 115 
 
 CHAPTER IX. 
 
 THE THIRD GENERAL MODE OF ACQUIRING TITLE TO 
 PERSONAL PROPERTY— TRANSFER BY 
 ACT OF THE PARTIES. 
 
 I. Oifts inter vivos. 
 
 S 78. Deflnition, and subjects of these gifts 116,117 
 
 79. Delivery essential 117,118 
 
 80. Validity of gifts ' 118 
 
 81. Gifts on condition, with reservation, or a trust.. 119 
 
 82. Gifts between parent and child 119,120 
 
 83. Gifts between husband and wife. 120 
 
 84. Revocation of gifts 120 
 
XIV TABLE OP CONTENTS. 
 
 II. Gifts causa mortis. 
 
 PAQG. 
 
 85. Definition 121,122 
 
 86. Essentials to this gift 122,123 
 
 87. Title of donee, delivery, and effect 123,124 
 
 88. Revocation 124,125 
 
 69. Not favored In law 125 
 
 III. Title 6j/ Will or Testament. 
 
 90. Why assigned to this division 125, 126 
 
 91. Last will and testament defined 127 
 
 92. Testamentary capacity 127-129 
 
 93. Written, and unwritten, wills 130 
 
 94. Revocation 130, 131 
 
 95. When the will takes effect 132 
 
 IV. Sales. 
 
 96. Sale defined 132,133 
 
 97. Elements of a valid sale 134 
 
 98. Parties competent to contract 134 
 
 99. Mutual assent 134-136 
 
 100. The subject of the sale , 136-138 
 
 101. A price In money, paid or promised 138 
 
 102. The Statute of Frauds 138-152 
 
 103. Contract in respect of passing title 152-157 
 
 104. Mistake; failure, and Illegality, of consideration. 157-160 
 
 105. Fraudulent sales 160-W6 
 
 106. Illegal contracts of sale 166, 167 
 
 107. CJonditionSi and conditional sales 167, 168 
 
 108. Warranty 169-172 
 
 109. Delivery in performance of the contract 172-176 
 
 110. The vendor's lien 176 
 
 111. Stoppage in transitu 176-179 
 
 112. Payment and tender 179-186 
 
 113. Remedies of the vendor .' 186-189 
 
 114. Remedies of the vendee 190-194 
 
 V. Indorsement. 
 
 115. Title by, and kinds 194, 195 
 
TABLE OP CONTENTS. XV 
 
 VI. Assignment, 
 
 PAGE. 
 
 118. Acquisition of title by 195, 196 
 
 VII. Bailment. 
 
 117. Special property In bailee 196, 197 
 
 CHAPTER X. 
 
 LIMITATIONS. 
 
 S 118. History and purpose 198,199 
 
 119. When the limitation begins 200,201 
 
 120. Now promise , 201-205 
 
 CHAPTER XL 
 
 INSURANCE. 
 
 ! 121. Definition, and terms employed 206,207 
 
 122. Nature, and form, of the contract 207-209 
 
 123. Classes of policies 209-211 
 
 124. Consimimation of the contract 211-214 
 
 125. Subject-matter of the contract 214 
 
 126. Insurable interest 214-216 
 
 127. Warranties, and representations 216-219 
 
 128. Special provisions of the contract 219-222 
 
 129. Mutual insurance , . . . . 222-224 
 
 CH[APTER XII, 
 
 LEGACIES, AND DISTRIBUTIVE SHARES. 
 I. Legacies. 
 
 S 130. Definition, and principal classes 225-227 
 
 131. Minor divisions, rules and incidents 227,231 
 
 132. Abatement, ademption, payment and satisfaction 231-235 
 
 I. Distributive Shares 
 
 133. Defined and explained '. 235,236 
 
XVI TXBUE OF CONTENTS. 
 
 CHAPTER XIII. 
 STOCK, AND STOCKHOLDERS. 
 
 PAGE. 
 
 5 134. Stock, and shares of stock, defined 237-239 
 
 135. Methods of acquiring title to stock 239-241 
 
 136. Llahility of stockholders 241-251 
 
 137. The assets on dissolution 251-253 
 
 MISCELLANEOUS SPECIES OF PERSONAL PROPERTY NOT 
 HEREINBEFORE SPECIFICALLY TREATED. 
 
 I. Money. 
 
 § 138. What it is 254 
 
 139. Constitutional money 254-257 
 
 140. Suhject to levy under execution 257,258 
 
 II. Deits. 
 
 141. Definition, and classification 258-266 
 
 142. Debt, how discharged 266-273 
 
 III. Mortgages. 
 
 143. Definition, and essential elements 274 
 
 144. Formal requisites 274-276 
 
 145. Subjects of a chattel mortgage 276-278 
 
 146. Possession of the mortgaged property 279,280 
 
 147. Mortgage distinguished from pledge 280, 281 
 
 148. Equity relief of mortgagor 282 
 
 149. Conditional sales with the right to repurchase, dis- 
 
 tinguished 283 
 
 150. Foreclosure of the equity of redemption 284,285 
 
 IV. Bottomry, and respondentia, bonds. 
 
 151. Defined and explained 285, 286 
 
 152. Hypothecation by the master, or the owner 286,287 
 
 153. Miscellaneous rules 287-289 
 
 V. Rent 
 
 154. Definition and properties 290 
 
 155. The kinds of rent 291, 292 
 
TABLE OF CONTENTS. XVll 
 
 PAGE. 
 
 156. Remedy by distress for rent in arrear 292-297 
 
 157. Remedies by action at law, and a suit in equity. . 297-300 
 
 158. Obligation to pay rent; eviction a defense 300-302 
 
 159. Apportionment of rent 302-304 
 
 CHAPTER XV 
 
 DEVOLUTION OP PI21S0NAI. PROPERTT ON DEATH OF 
 
 OWNER. 
 
 S 160. General rules 305,306 
 
TABLE OF OASES. 
 
 [References are to pages.] ' 
 
 A. 
 
 Abbott T. American Hard Rubber Co., 33 Barb. B78, 4 
 
 Blatchf. 489 253 
 
 Abbott V. Hampden Mut. Fire Ins. Co., 30 Me. 414 216 
 
 Abbott V. Howard, Hayes (Irlsb), 381 218 
 
 Abbott v. Shepard, 48 N. H. 14 135 
 
 Abemethy v. Ch. of the Puritans, 3 Daly, 1 19 
 
 Acebal v. Levy, 10 Bing. 376 145, 151 
 
 Acraman t. Morris, 8 C. B. 449 153 
 
 Adams v. Broughton, Strange, 1078 103 
 
 Adams V. Linsdell, 1 B. & Aid. 681 135 
 
 Adams v. McMillan, 7 Post 73 151 
 
 Adams v. Mirick, 5 Serg. & R. 32 187 
 
 Adams V. Story, 1 Paine C. C. 79 110 
 
 Adams Exp. Co. v. Egbert, 36 Pa. St. 360 191 
 
 Adler v. Milwaukee, etc., Co., 13 Wis. 57 245 
 
 Agar T. Lisle, Hob. 187 54 
 
 Agnew V. Johnson, 17 Pa. St. 373 33 
 
 Alabama & Fla. R. R. Co. v. Rowley, 9 Fla. 508 243 
 
 Alcock V. Hopkins, 6 Cush. 484 181 
 
 Alden v. Dewey, 1 Story, 336 73 
 
 Alderson t. Schulze, 64 Wis. 460 31 
 
 Aldridge v. Johnson, 7 E. & B. 885, 26 L. J. B. 296 157 
 
 Alexander v. Gardner, 1 Bing. N. C. 671 157 
 
 Alexander v. Whipple, 45 N. H. 502 204 
 
 Allan T. Carpenter, 15 Mich. 25 14 
 
 Allan v. Eldred, 50 Wis. 132 182 
 
 AUard v. Greasert, 61 N. Y. 1 1** 
 
XX TABLE OF CASES. 
 
 [References are to pages.] 
 
 Allen 7. Bennett, 3 Gaunt. 169 151 
 
 Allen V. Blunt, 2 Woodb. & M. 121 69 
 
 Allen V. Cowan, 23 N. Y. 502 117 
 
 Allen V. Franklin Ins. Co., 9 How. Pr. Rep. 501 215 
 
 Allen V. Hunter, 6 McLean, 303 70 
 
 Allen V. Jarvis, 20 Conn. 38 141 
 
 Allen V. Montgomery R. R. Co., 11 Ala. 437, 450 244, 248 
 
 Allen V. Webster, 15 Wend. 284 202 
 
 AUer V. AUer, 11 Vroom. 446 270 
 
 Allerton v. Lacey, 10 Bosw. 362 118 
 
 AUingham v. O'Mahoney, 1 Pugsl. 326 173 
 
 AUis v. Read, 45 N. Y. 142, 149 135 
 
 Alsop V. Com. Ina. Co., 1 Sumner, 451 210 
 
 Am. Horse Ins. Co. v. Patterson, 28 Ind. 17 213 
 
 Am. Solid Leather Button Co. v. Anthony, Cowell & Co., 
 
 15 R. I. 338 90,92 
 
 Ames V. Molr, 138 U. S. 306 268 
 
 Amesbury v. Bowditch Mut. Fire Ins. Co., 6 Gray, 596... 220 
 
 Amoskeag Manuf. Co. t. Spear, 2 Sandf. Super. Ct. 599.. 92 
 
 Amoskeag Manuf. Co. t. Trainer, 101 U. S. 51 92 
 
 Anderson t. Baker, 1 Ca. 595 117 
 
 Anderson t. Baumgartner, 27 Mo. 80 282 
 
 Anderson v. Fitzgerald, 24 Eng. L. & Eq. 1, 4 H. of L. 
 
 Gas. 484 217 
 
 Anderson t. Greene, 7 J. J. Marsh. 448 118 
 
 Anderson v. Harold, 10 Ohio, 399 151 
 
 Anderson v. Parsons, Greenl. 486 231 
 
 Anderson, Receiver, y. Philadelphia Warehouse Co., Ill 
 
 U. S. 479 250 
 
 Appeal of Rowley, 9 Atl. Rep. 329 241 
 
 Archer v. Hudson, 7 Beav. 551 120 
 
 Archer v. Zeh, 6 Hill, 200 141, 148 
 
 Arey v. Stephenson, 11 Ired. L. 86 203 
 
 Argus Co. V. Mayor, etc., of Albany, 55 N. Y. 495 151 
 
 Armory v. Delamirle, Str. Rep. 556 54 
 
 Armory v. Flyn, 10 Johns. 102 59 
 
 Armsted v. Ward, 2 Pat & H. 504 181 
 
TABLE OF CASES. XXI 
 
 [References are to pages.] 
 
 Arnold v. Delano, 4 Cush. 33, 38 176 
 
 Arnold v. Delano, -7 Cush. 33 187 
 
 Arnold v. Suftolk Bank, 27 Barb. 424 190 
 
 Ash V. Ash, 9 Ohio St. 383 131 
 
 Ashbumer v. McGuire, Br. C. C. 108 232 
 
 Ashcu-oft V. Butterworth, 136 Mass. 511 135 
 
 Aspinwall V. Sacchi, 57 N. Y. 331 250 
 
 Aspinwall V. The King's Proctor, Curt Ecc. 246 107 
 
 Astley V. Emery, 4 M. & G. 262 145 
 
 Atherton v. Atherton, 181 U. S. 155 262 
 
 Atherton V. Tllton, 44 N. H. 452 36 
 
 Atkins V. Colby, 20 N. H. 154 177 
 
 Atkins V. Saxton, 77 N. Y. 195 38 
 
 Atkinson v. Allen, 12 Vt. 619 263 
 
 Atkinson v. Bell, 8 B. & C. 277 157 
 
 Atlantic Milling Co. t. Robinson, 20 Fed. Rep. 217 91,93,95 
 
 Attenbergh v. People, Car. & P. 212 295 
 
 Attorney General v. Johnstone, Amb. 577 228 
 
 Atwater v. Hough, 29 Conn. 509, 516 140, 141 
 
 Atwood V. Clark, 2 Me. 249 175 
 
 Atwood V. Lucas, 53 Me. 508 187 
 
 Atwood V. Small, 6 Clark & F. 443 163 
 
 Audubon v. Schufeldt, 181 U. S. 585 268 
 
 Autman's Appeal, 98 Pa. St. 505 250 
 
 Ayer v. Bartlett, 9 Pick. 156 154, 155 
 
 Ayers v. Bane, 39 Iowa, 518 185 
 
 B. 
 
 Babb v. Read, 5 Rawle, 157 44 
 
 Babcock v. Bonnell, 80 N. Y. 244, 249, 250, 251 177, 178 
 
 Bkbcock T. Booth, 2 Hill, 181 108 
 
 Bibcock V.Gill, 10 Johns. 287 66 
 
 Babcock v. Hawkins, 23 Vt. 561 266 
 
 Babcock v. Wyman, 19 How. 289 276 
 
 Bacon v. Robertson, 18 How. (U. S.) 480 252 
 
 Bacon v. Eccles, 43 Wis. 227 145 
 
 Backhouse v. Harrison, 5 B. & Ad. 1098 56 
 
XXn TABLE OF CASES. 
 
 tReferences are to pages.] 
 
 Badrick V. Stevens, 2 Br. C. C. 431 232 
 
 Bagwell V. Dry, 1 P. Wms. 700, 2 P. Wms. 400 230 
 
 Bailey V.Clark, 91 Wall. 284 237 
 
 Baileyv.Day, 26 Me. 88 267 
 
 Bailey V. Hollister, 26 N. Y. 112 250 
 
 Baileyv. Smith, 43 N. H. 141 156 
 
 Bailey V. Wright, 3 McCord, 484 293 
 
 Baird's Case, L. R. 5 Ch. 725 250 
 
 Bakerv.Holt, 56 Wis. 100 135 
 
 Baker V. Kenworthy, 41 N. Y. 215 258 
 
 Baker V. Lever, 67 N. Y. 304 272 
 
 Baker v. Wheeler, 8 Wend. 505, 508 66 
 
 Baltimore, etc., Turnpike Co. v. Barnes, 6 Harris & J. 
 
 (Md.) 57 240 
 
 Baltimore Fire Ins. Co. v. Loney, 20 Md. 20 209 
 
 Balto, etc., Co. v. Sewell, 36 Md. 238 190 
 
 Balme v. Wambaugh, 16 Minn. 116 186 
 
 Baldy v. Parker, 2 B. & C. 37 144 
 
 Baldwin v. Williams, 3 Met. 367 141 
 
 Ball v. Chadwick, 46 111. 28 195 
 
 Ball v. Gilbert, 12 Met. 395, 399 211 
 
 Ballard v. Noaks, 2 Pike, 45 266 
 
 Ballentine v. Robinson, 46 Pa. St. 177 189 
 
 Banet v. Alton, etc., R. R. Co., 13 111. 504 242 
 
 Bank v. Bangs, 102 Mass. 291, 195 157 
 
 Bank of Attica v. Mf gs. & Trs. Bank, 20 N. Y. 501 241 
 
 Bank of Columbia v. Patterson, 7 Cranch, 299 40 
 
 Bank of Commonwealth v. Van Vleck, 49 Barb. 508 257 
 
 Bank of Ohio Valley v. Lockwood, 13 W. Va. 392, 426. .. . 181 
 
 Bank of Rochester v. Jones, 4 N. Y. 497 155, 275 
 
 Bank of St. Marys v. St John, 25 Ala. 566 238 
 
 Bank of United States v. Donnally, 8 Pet. 361, 371 265 
 
 Bank of U. S. T. Dandridge, 12 Wheat. 64 41 
 
 Baink of Utica v. Ballou, 49 N. Y. 155 203 
 
 Banks v. Thornton, 11 Hare, 176 132 
 
 Banorgee v. Hovey, 5 Mass. 11 , 266 
 
 Banton v. Shorey, 77 Me. 48 143 
 
 Baptist Church v. Brooklyn Ins. Co. 19 N. Y. 305 210 
 
TABLE OF CASES. XXUl 
 
 [References are to pages.] 
 
 Baptist Ch. v. Blgelow, 16 Wend. 28 19 
 
 Bardwell v. Robert, 66 Barb. 433, 275 
 
 Barclay v. Barclay, 184 111. 375 269 
 
 Barfield v. Cole, 4 Sneed, 465 275 
 
 Barfleld v. Nicholson, 2 Sim. & St. 1 83 
 
 Barkley v. Rensselaer R. R. Co. 71 N. Y. 205 146 
 
 Barker v. Dinsmore, 72 Pa. St. 427 55 
 
 Barnes v. Underwood, 47 N. Y. 351 114 
 
 Barney v. Leeds, 54 N. H. 128 34 
 
 Barrow v, Paxton, 5 Johns. 258 281 
 
 Bartels v. Harris, 4 Me. 146 275 
 
 Bartel v. Lope, 6 Oreg. 321 276 
 
 Barton's Case, 4 De Gex. & J. 46 243 
 
 Barnard v. Bartholomew, 22 Pick. 291 203 
 
 Barnard v. Graves, 16 Pick. 41 182 
 
 Barnard v. Kellogg, 10 Wall. 383 171 
 
 Barnett v. Terry, 42 Ga. 283 187 
 
 Bartlett v. Blanchard, 13 Gray, 429 191 
 
 Bartlett v. Crittenden, 4 McLean, 300, 5 McLean, 32 88 
 
 Bartlett v. Pearson, 29 Me. 9 196 
 
 Bartlett v. Vinor, Carth. 251 167 
 
 Bartholomew v. Sawyer, 1 Fish. 516 71 
 
 Barr v. Ayers, 3 Watts & S. 299 173; 
 
 Barron v. Baltimore, 7 Pet. 243 4 
 
 Barrett v. Crane, 16 Vt. 246 260 
 
 Barrett V. Goddard, 3 Mason, 107 147 
 
 Barrett v. Hall, 1 Mason, 447 75 
 
 Barrett v. Pritchard, 2 Pick. 512 155 
 
 Barrow v. Coles, 3 Camp. 92 153- 
 
 Barry v. Merchants' Ex. Co., 1 Sandf. Ch. 280, 305 40, 237' 
 
 Barwick v. Foster, Cro. Jac. 227 . . ., 303-. 
 
 Bassett v. Bassett, 10 N. H. 64 276: 
 
 Bassett v. Camp, 54 Vt. 232 147 
 
 Bates V. Coster, 1 Hun. 400 141! 
 
 Bates V. Nellis, 5 Hill, 651 293' 
 
 Bates V. New York Ins. Co., 3 Johns. Cas. 238 239 
 
 Bates V. Sparrell, 10 Mass. 323 19 
 
 Bauman t. James, 3 Ch. 508 161 
 
 c 
 
XXIV TABLE OP CASES. 
 
 tReferences are to pages.] 
 
 Bautleman v. Smith, 2 Binn. 146 293 
 
 Bayard v. Farmers, etc.. Bank, 52 Pa. St. 232 42 
 
 Bayley v. Homan, 3 Bing. (N. C.) 621 267 
 
 Baxter v. Penniman, 8 Mass. 134 203 
 
 Beach v. Owen, 5 T. R. 409 148 
 
 Beattie v. Abercombie, 18 Ala. 9 105 
 
 Bear v. Harnish, 3 Brewst, 116 190 
 
 Bearce t. Banker, 115 Mass. 129 65 
 
 Bearinger v. O'Hare, 26 Iowa, 259 294 
 
 Bean v. Smallwood, 2 Story, 408 69 
 
 Beaumont v. Beevgerle, 5 C. B. 301 146 
 
 Beaumont t. Crane, 14 Mass. 400 32 
 
 Becker v. Boon, 61 N. Y. 317 186 
 
 Beckwith v. Talbot, 95 U. S. 289 150 
 
 Bedell v. Carll, 33 N. T. 581 125 
 
 Bedford v. Hunt, 1 Mason, 301, 303 70 
 
 Beecher v. Buckingham, 18 Conn. 110 105 
 
 Beecher v. Dillsbury, etc. R. R. Co., 76 Pa. St. 306 240 
 
 Beecher v. Mayall, 16 Gray, 376 270 
 
 Beema.n v. Lawton, 37 Me. 543 275 
 
 Behner v. Dale, 25 Ind. 433 190 
 
 Behn v. Bumess, 3 Best & Smith, 751 171 
 
 Belden v. Meeker, 47 N. Y. 307 196 
 
 Bell V. Daniels, 1 Fish. 372 71 
 
 Bell V. Lamprey, 57 N. H. 168 200 
 
 Bell V. Locke, 8 Paige, 75 97 
 
 Bell T. Morrison, 1 Peters, 362 202 
 
 Bell T. Moss, 5 Wheat. 189 177 
 
 Bell v. OSutt, 10 Bush, 632, 639 189, 212 
 
 Bell v. Potter, 6 Hill, 497 295 
 
 Bell v. Reynolds, 78 Ala. 511 191 
 
 Bell V. Shibley, 33 Barb. 610 224 
 
 Bellv. Shrieve, 14 111. 462 280 
 
 Belmont v. Erie Raiilway Co., 52 Barb. 637 40 
 
 Bellows V. Wells, 36 Vt. 599 154 
 
 Belt V. Marriott, 9 Gill. 331 146 
 
 Bement t. Smith, 15 Wend. 493 189 
 
 Benjamin v. Stremple, 13 111. 466 197 
 
TABLE OF CASES. XXV 
 
 [References are to pages.] 
 
 Bennett V. Hull, 10 Johns. 363 140 
 
 Bennett v. Nye, 4 Greene (la.) ,410 141 
 
 Bennett v. Smith, 15 Wend. 493 157 
 
 Benson v. Benson, 1 P. Wms. 130, 131 265 
 
 Bentall t. Burn, 3 B. & C. 423 147 
 
 Bent V. Hart, 10 Mo. App. 143, 146 237 
 
 Benton' v. Hawkes, 4 B. & Aid. 540, 550 69 
 
 Bergen v. Udall, 31 Barb. 9 120 
 
 Berkly v. Hardy, 5 Barn. & C. 355 299 
 
 Bernecker v. Miller, 40 Mo. 473 32 
 
 Berry v. Berry, 31 Iowa, 415 119 
 
 Berry v. Usher, 11 Ves. 87 235 
 
 Betterton v. Roope, 3 Lee (Tenn.) ,220 181 
 
 Betts et al v. Lee, 5 Johns. 349 66 
 
 Beverage v. New York El. R. R. Co.. 112 N. T. 1, 27 239 
 
 Biddleson v. Whytel, 3 Burrows, 1545-1548 103 
 
 Bigelow V. Baldwin, 1 Gray, 245 266 
 
 Bill V. Bament, 9 M. & W. 36 150 
 
 Billings V. Robinson, 94 N. Y. 415 248 
 
 BJmelar v. Dawson, 5 111. 536 '. 262 
 
 Bird V. Munroe, 66 Me. 347 ; 150 
 
 Bishop V. Bishop, 11 N. Y. 123 9 
 
 Bishop V. Small, 63 Me. 12 162 
 
 Black V. Delaware, etc. Canal Co., 22 N. J. Eq. 130, 415, 24 
 
 N. J. Eq. 455 253 
 
 Black T. Thornton, 31 Ga. 641 118 
 
 Black V. Zacharie, 3 How. 483 181 
 
 Blaine v. Ship Charles Carter, 4 Cranch, 328 288 299 
 
 Blair v. Claxton, 18 N. Y. 529 302 
 
 Blaisdell v. Souther, 6 Gray, 152 133 
 
 Blake v. Portsmouth, etc. R. R. Co., 39 N. H. 435 252 
 
 Blakemore v. Tabor, 22 Ind. 446 284 
 
 Blanch V. Bradford, 38 Pa. St. 344 296 
 
 Blanchard T. Noyes, 3 N. H. 518 267 
 
 Blanchard v. Russell, 13 Mass. 1 110 
 
 Blanche v. Rogers, 26 N. J. Eq. 563 11 
 
 Blaney V. Hoke, 14 Ohio St. 292 212 
 
 Elen V. Bear River, etc. Co., 20 Cal. 602 272 
 
XXVI TABLE OF CASES. 
 
 [References are to pages.] 
 
 Blenklnsop v. Clayton, 7 Taunt. 597 , 148 
 
 Blessing v. House, 3 Gill. & J. 290 32 
 
 Blight V. Ashley, 1 Pet. C. C. 15 , 212 
 
 Bliss V. Schaub, 84 Barb. 339 197 
 
 Blodgett V. Blodgett, 48 Vt. 32 282 
 
 Bloomer v. Bloomer, 2 Bradf . Surr. 339 131 
 
 Bloss V. Klttridge, 5 Vt. 28 169 
 
 Blount V. Burrow, 1 Ves. Jun. 546 123 
 
 Boale V. Mayor, 19 C. B. N. S. 76 265 
 
 Boardman v. Brittania Co., 35 Conn. 402 90 
 
 Boardman. v. Cutler, 128 Mass. 388 141 
 
 Boardman v. Lake Shore, etc. Railway Co., 84 N. Y. 157. . 239 
 
 Bordman v. Meridan Brittannia Co., 35 Conn. 402 92 
 
 Boardman v Spooner, 13 Allen, 353 147 
 
 Bodger v. Arch, 28 Bng. L. & Eq. 464 203 
 
 Boehem v. Combe, 2 M. & S. 172 211 
 
 Boeppler v. Menown, 7 Mo. App. 447 246 
 
 Bogan V. Pinley, 19 La. An. 94 117 
 
 Bogert V. Indianapolis, 13 Ind. 134 21 
 
 Bolton V. Riddle, 35 Mich. 13 174 
 
 Bonner v. Campbell, 48 Pa. St. 286 37 
 
 Boody V. Davis, 20 N. H. 140 276 
 
 Boon V. Moss, 70 N. Y. 465 154 
 
 Borradaile v. Hunter, 5 M. & G. 639 217 
 
 Boston, etc. R. R. Co. v. N. Y. & N. B. R. R. Co., 13 R. L 
 
 260 253 
 
 Boston Music Hall v. Cory, 129 Mass. 435 241 
 
 Bostwick V. Leach, 3 Day, 476 143 
 
 Boucicault v. Hart, 13 Blatchf. 47 89 
 
 Boucicault v. Wood, 2 Blss. 34 78 
 
 Boughner v. Meyer, 5 Colo. 71 211 
 
 Bowen v. Buck, 13 Pa. St. 146 154 
 
 Bowen V. Burk, 13 Pa. St. 146 187 
 
 Bowen v. Darby, 14 Fla. 202 257 
 
 Bower v. Stoddard, 10 Met. 375 35 
 
 Bowery Fire Ins. Co. v. N. Y. Ins. Co., 17 Wend. 359 208 
 
 Bowman v. Coun, 8 Ind. 58 144 
 
 Boyce v. Washburn, 4 Hun. 792 143 
 
TABLE OF CASES. ZXVll 
 
 [References are to pages.] 
 
 Boyd V. Brown, 6 Barr. 310 162 
 
 Boyd V. aunnison, 14 W. Va. 1 174 
 
 Boydell v. Drummond, 11 East. 142 ,. 150 
 
 Boylan v. Meeker, 28 N. J. L. 274 ■. 130 
 
 Boynton v. Bobbitt, 2 Vent. 68 302 
 
 Brackett v. Bullard, 12 Met. 308 279 
 
 Brackett v. Hoitt, 20 N. H. 257 107 
 
 Bradbury v. Beeton, 39 Law J. Rep. Ch. (N. S.), 57 94 
 
 Braddock v. Phil. etc. R. R. Co., 45 N. J. L. 363 242 
 
 Bradshaw v. Heath, 13 Wend. 407 262 
 
 Bradford v. Fox, 38 N. Y. 289 182 
 
 Bradley v. Norton, 33 Conn. 157 92 
 
 Bradley v. Michael, 1 Ind. 551 187 
 
 Bragleman v. Dane, 69 N. Y. 69 276, 282 
 
 Brainerd v. Brainerd, 15 Conn. 575 276 
 
 Brand v. Fetch, 3 Keyes, 409 146 
 
 Brandon v. HuntsvlUe Bank, 1 Stewart (Ala.), 320 54 
 
 Brant v. Bowlby, 2 B. & Adol. 932 154 
 
 BTMitiey t. Thomas, 22 Tex. 270 171 
 
 Braunstein y. Accidental Death Ass. Co., 1 Best & Smith, 
 
 782 222 
 
 Bray v. Bates, 9 Met. 235 285 
 
 Brennan t. Emery, 99 Fed. Rep. 971 91 
 
 Brennan v. Whittaker, 15 Ohio St. 446 279 
 
 Brewer v. Browne, 68 Ala. 210 37 
 
 Brewer v. Smith, 3 Greenl. 44 153,156 
 
 Brewster v. Taylor, 63 N. Y. 587 145 
 
 Brlcker v. Hughes, 4 Ind. 146 143 
 
 Bridge v. Ford, 4 Mass. 641 264 
 
 Bridges T. Smyth, 2 Moore & P. 740 294 
 
 Bridges v. Hawkesworth, 9 Eng. L. & Eq. 424 54 
 
 Bridges v. Hawkesworth, 7 Eng. L. & Eq. 424 55 
 
 Bridgford v. Crocker, 60 N. Y. 627 189 
 
 Briggs v. Oliver, 68 N. Y. 336 285 
 
 Briggs V. Hosford, 22 Pick. 288, 289 227 
 
 Brigham v. Mead, 10 Allen, 245 248, 249 
 
 Bringhoff v. Munzenmaler, 20 Iowa, 513 278 
 
 Brlghtwell v. Mallory, 10 Yerg. 196 42, 241 
 
XXviii TABLE OF CASES. 
 
 [References are to pages.] 
 
 Brink v. Cfould, 7 Lans. 425 * 117 
 
 Brinley T. Kupper, 6 Pick. 179 31 
 
 Brittain v. McKay, 1 Ired. 265 1*3 
 
 Brodhead v. McKay, 46 Ind. 595 279, 280, 284 
 
 Brogden v. Metropolitan Railway Co;, 2 App. Cas. 666. .. . 135 
 
 Bronson v. Rodes, 7 "Wall. 229 257 
 
 Brooke Iron Co. Vj O'Brien, 135 Mass. 442 179 
 
 BrougMon v. Silloway, 114 Mass. 71 182 
 
 Brown v. Brown, 18 Conn. 410 125 
 
 Brown v. Graham, 24 111. 628 32 
 
 Brown v. Greer, 13 6a. 285 284 
 
 Brown v. Hall, 5 Lans. 177 14* 
 
 Brouwer v. Harbeck, 9 N. Y. 589 109 
 
 Brown v. Hlggs, 4 Ves. 708 n. b 231 
 
 Brown V. Railroad Co., 44 N. Y. 79 212 
 
 Brown v. Roger Williams Ins. Co., 5 R. I. 304, 7 R. I. 301 220 
 
 Brown v. Sanborn, 21 Minn. 402 140, 144 
 
 Brown v. Sax, 7 Cow. 95 65 
 
 Brown v. Stanclift, 80 N. Y. 627 143 
 
 Brown v. State Bank, 10 Ark. 134 203 
 
 Brown v. Sullivan, 62 Ind. 281 54 
 
 Brown v. V. S., 8 Cranch, 110 53 
 
 Brown v. Wootton, Cro. Jac. 73 103 
 
 Brown v. Whipple, 58 N. H. 209 150 
 
 Brownlee v. Bolton, 44 Mich. 218 188 
 
 Brownson v. Gleason, 7 Barb. 472 173 
 
 Brooklyn Bank v. De Grauw, 23 Wend. 342 266 
 
 Bruce et ux v. Savannah Mut. ' Ins. Co., 24 Ga. 97 220 
 
 Bruen v. Marquand, 17 Johns. 58 270 
 
 Brunshill v. Muir, 15 Up; Can. Q. B. 213 174 
 
 Brunswick v. Dunning, 7 Mass. 445, 447 38 
 
 Bryan v. Blythe, 4 Blackf. (Ind.), 249 260 
 
 Bryant v. Booze, 55 Ga. 438 135 
 
 Bryant v. Crosby, 40 Me. 9 169 
 
 Bryant v. Proctor, 14 B. Mon. 457 266 
 
 Bryant v. Wltcher, 52 N. H. 158, 161 55 
 
 Buchan v. Sumner, 2 Barb. Ch. 165 37 
 
 Buck V. Hermance, 1 Blatchf. 398 75 
 
TABLE OF CASES. XXIX 
 
 [References are to pages.] 
 
 Buck V. Rockwell, 27 Vt. 157 143 
 
 Buck V. Spofford, 31 Me. 34 31 
 
 Buckland v. Rice, 40 Ohio St., 526 94 
 
 Burckle v. Eckhart, 3 N. Y. 132 36 
 
 Buckley v. Morgan, 46 Conn. 393 165 
 
 Bucklin T. Thompson, 1 J. J. Marsh. (Ky.), 223 281 
 
 Buckout V. Swift, 27 Cal. 438 15 
 
 Buckingham V. Smith, 23 Conn. 453 203 
 
 Bukup T. Valentine, 19 Wend. 554 '. 295 
 
 Budd V. Multnomah St Ry. Co., 15 Pac. Rep. 659 ...... 242,243 
 
 Buel T. Chapln, 99 Mass. 596 184 
 
 Buford T. Keokuk, etc. Packet Co., 3 Mo. App. 159 253 
 
 Buffalo City Cemetery v. Buffalo, 46 N. Y. 503 20 
 
 Buffalo & A. R. R. Co. v. Cary, 26 N. Y. 75 247 
 
 Buffalo, etc. R. R. Co. v. Dudley, 14 N. Y. 336 240, 241 
 
 Buffar V. Bradford, 2 Atk. 220 230 
 
 Bulkeley v. Barker, 6 Ex. 164 35 
 
 Bulkly v. Orms, Brayt. (Vt.) 124 100 
 
 Bun v. Griswold, 19 111. 631 143 
 
 Bumgardner v. Taylor, 28 Ala. 687 185 
 
 Bunge v. Koop, 5 Rob. 1 267 
 
 Bunacleugh v. Poolman, 3 Daly, 236 275 
 
 Bunn V. Markham, 7 Taunt. 224, 231 121,124 
 
 Burd v. Burd, 4 Pa. St 182 229 
 
 Burgess v. Heape, 1 Hill (S. C), Ch. 397 113 
 
 Burkholder v. Plank, 19 Smith (Pa. ) , 225 269 
 
 Burne v. Richardson, 4 Taunt 720 295 
 
 Burnes v. Simpson, 9 Kan. 658 103 
 
 Burnside v. Weightman, 9 Watts, 46 14 
 
 Burtenshaw v. Gilbert, Cowp. 51 131 
 
 Burton v. Tannehill, 6 Blackf. 470 280 
 
 Burrall v. Bushwick R. R. Co., 75 N. Y. 211 237, 238, 251 
 
 Burrell v. N. Y. etc. Co., 14 Mich. 34 191 
 
 Burrill v. Nahant Bank, 2 Met 163 40 
 
 Burrows v. Smith, 10 N. Y. 550 241 
 
 Buschman v. Cold, 52 Md. 202, 207 162 
 
 Bush V. Holmes, 53 Me. 417 .'. 190 
 
XXX TABLE OP CASES. 
 
 [References are to pages.] 
 
 Bush v. Wilklns, 4 Johns. Ch. 506 131 
 
 Busk V. Davis, 2 M. & S. 397 156 
 
 Buster y. Newkirk, 20 Johns. 75 60 
 
 Butler's Case, 3 Inst. 107 55 
 
 Butler V. Hildreth, 5 Met. 49 165 
 
 Butler V. Howe, 13 Me. 397 201 
 
 Butler V. Northumberland, 50 N. H. 33 192 
 
 Buxton V. Edwards, 134 Mass. 567 203 
 
 Byers v. Byers, 6 Dana (Ky.), 312 126 
 
 Byron v. Johnson, 8 Tenn. R. 410 299 
 
 Buzzard v. Capel, 8 Bam. & C. 141 290 
 
 0. 
 
 Cable V. McCune, 26 Miss. 371 259 
 
 Cadwell v. Blake, 6 Gray, 402 169 
 
 Cahoon v. Ring, 1 CUfE. 592 70 
 
 Caldwell v. Fifield, 24 N. J. L. 150 15 
 
 Caldwell v. Pickens, 39 Ala. 514 119 
 
 Calkins v. Clement, 54 Vt. 635 279 
 
 Calkins v. Falk, 38 How. Pr. 62 151 
 
 •Callagan v. Myers, 89 111. 570 154 
 
 Calvin v. Williams, 3 H. & J. 38 141 
 
 ■Cambridge v. Roas, 8 Ves. 12, 15 228 
 
 Cameron v. Wells, 30 Vt. 633 175 
 
 Camp V. Hamlin, 55 Ga. 259 187 
 
 Campbell v. Birch, 60 N. Y. 214 281 
 
 Campbell v. Brown, 20 Ga. 415 270 
 
 Campbell v. N. E. Mut. Life Ins. Co., 98 Mass. 381 217, 218 
 
 Campbell v. Phelps, 1 Pick. 62 104 
 
 Campbell v. Strong, Hemp. 265 263 
 
 Campbell v. Thompkins, 5 Stew. Ch. 170 270 
 
 Camp's Appeal, 36 Conn. 88 117 
 
 Canal Co. v. Ray, 101 U. S. 522, 527 271 265 
 
 Candee v. Deere, 54 111. 437 94 
 
 Canfield v. Bostwick, 21 Conn. 550 132 
 
 Cannan v. Bryce, 3 B. & Aid. 179, 183, 184 167 
 
 Cannon v. Folsom, 2 Iowa, 101 190, 191 
 
TABLE OF CASES. XXXI 
 
 [References are to pages.] 
 
 Canrole v. Cone, 4 Barb. 220 258 
 
 Carey v. Faden, 5 Ves. 24 83 
 
 Carleton v. Lovejoy, 54 Me. 445 113 
 
 Carlisle v. Burley, 3 Greenl. 250 103 
 
 Carlisle v. Cahawba & Marion R. R. Co., 4 Ala. (N. S.) 70 243 
 
 Carlisle v. Kinney, 66 Barb. 363 187 
 
 Carman v. Smick, 15 N. J. L. 252 140 
 
 Carpenter v. Atherton, 25 Cal. 564 257 
 
 Carpenter v. Beer, Comb. 246 167 
 
 Carpenter V. Dodge, 20 Vt. 595 117 
 
 Carpenter v. Galloway, 73 Ind. 418 144 
 
 Carpenter t. Northfield Bank, 39 Vt. 46 256 
 
 Carpenter v. Prov. Wash. Ins. Co., 16 Pet. 495 207,214 
 
 Carpenter v. Snelling, 97 Mass. 452 274 
 
 Carpenter v. Stevens, 12 Wend, 589 137 
 
 Carrington v. Merchants' Ins. Co., 8 Pet 495 54 
 
 Carrington v. Roots, 2 M. & W. 248 142 
 
 Carson v. Artie Mining Co., 5 Mich. 288 244 
 
 Carson v. Marine Ins. Co., 2 Wash. C. C. 468 210 
 
 Carter v. Burr, 39 Barb. 59 302 
 
 Carter v. Boehm, 3 Burr, 1095 214 
 
 Carter v. Humboldt Fire Ins. Co., 12 Iowa, 287 220 
 
 Carter v. Miller, 4 Mass. 559 33 
 
 Carver v. Bowles, 2 Russ. & My. 301 233 
 
 Carver v. Oakley, 4 Jones (N. C.) , Bq. 85 231 
 
 Cason V. Cheeley, 6 Ga. 554 140 
 
 Castleman v. Griffin, 13 Wis. 535 163 
 
 Caswell V. Keith, 12 Gray, 351 276 
 
 Cathcart v. Fire Department, etc., 26 N. Y. 529 99 
 
 Caughran v. Gilman, 72 Iowa, 570 262 
 
 Caulkins v. Hellman, 47 N. Y. 449 145 
 
 Cave V. Hastings, 7 Q. B. D. 125..: 151 
 
 Ceas V. Bramley, 18 Hun. 187, 188 275 
 
 Central Branch Bank v. Fritz, 20 Kan. 430 143 
 
 Central Railway v. Hisch, Law Rep. 2 H. L. 99, 120 162 
 
 Chadwick v. Butler, 28 Mich. 349 190 
 
 ChafEe v. Ludeling, 27 La. An. 607 247 
 
 Chaffee v. Rutland R. R. Co., 55 Vt. 110 236 
 
XXXU TABLE OF CASES. 
 
 [References are to pages.] 
 
 Chalres v. Brady, 19 Fla. 133 276 
 
 Chambers v. Garland, 3 Green, G. ( la. ) , 322 202 
 
 Champion v. Plummer, 3 B. & P. 252 151 
 
 Chancellor v. Wiggins, 4 B. & Mon. 201 170 
 
 Chandler v. Brown, 77 111. 333 246 
 
 Chandler t. Edson, 9 Johns. 362 66 
 
 Chandler v. Fuller, 10 Tex. 2 178 
 
 Channon v. Lusk, 2 Lans (N. Y.), 211 33 
 
 Chaplin V. Rogers, 1 Bast, 195 148 
 
 Chapin t. School District, 35 N. H. 450 169 
 
 Chapman v. Haley, 43 N. H. 300 196 
 
 Chapman v. Ingram, 30 Wis., 290 188 
 
 Charles River Bridge v. Warren Bridge, 7 Pick. 344, 445. 4 
 
 Charter v. Stevens, 3 Denio, 33 280, 282 
 
 Chartran v. Schmidt, Rice, 229 273 
 
 Chase v. East Tenn. etc. R. R. Co., 5 Lea, 415 243 
 
 Chase v. Lord, 77 N. Y. 1 245 
 
 Chase v. Walters, 28 Iowa, 460 195 
 
 Chaworth v. Beech, 4 Ves. 555 227 
 
 Cheetham v. Ward, 1 B. & P. 630 235 
 
 Chelsey v. Welch, 37 Me. 106 13 
 
 Chelsyn v. Daby, 4 Young & C. 238 203 
 
 Cheney's Case, 3 Leon, 260 298 
 
 Chesley v. Joselyn, 7 Gray, 489 137 
 
 Chesley v. St. Clair, 1 N. H. 189 197 
 
 Chester Glass Co. v. Dewey, 16 Mass. 94 241 
 
 Chicago & Great West. R. Co. v. Dane, 43 N. Y. 240 136 
 
 Chintz V. Surey, S Bsp. 267 145 
 
 Chjpman v. Marting, 13 Johns. 340 293 
 
 Chouteau Spring Co. v. Harris, 20 Mo. 382 241, 248 
 
 Christenson v. Bno, 106 N. Y. 97, 100 245 
 
 Christman v. Floyd, 9 Wend. 340 295 
 
 Christmas v. Whingates, 3 Swab. & Tr. 81 130 
 
 Christopher v. Austin, 11 N. Y. 216 301 
 
 Church V. Feterow, 2 Pen. & Watts, 301 183 
 
 Church V. Sherman, 36 Wis. 404... 40 
 
 Claflin V. Carpenter, 4 Met. 580 143 
 
 Clapp V. HaJe, 112 Mass. 368 185 
 
TABLE OP CASES. XXxiii 
 
 [References are to pages.] 
 
 Clapp v. Peck, 55 la. 270 177 
 
 Clapp V. Sohmer, 55 la. 273 177 
 
 Clapp T. Stoughton, 10 Bick. 463 107 
 
 Clark V. Bogardus, 12 "Wend. 67 235 
 
 Clark V. Bryan, 16 Md. 171 260 
 
 Clark V. Bush, 3 Cow., 151 270 
 
 Clarke v. Davis, 1 Redf. Surr. Rep. 249 129 
 
 Clark T. Depew, 25 Penn. St. 509 119, 121 
 
 Clark V. Draper, 19 N. H. 419 187 
 
 Clark V. Dutcker, 9 Cow. 674 203 
 
 Clark V. Griffith, 24 N. Y. 595 66 
 
 Clark v. Jetton, 5 Sneed, 229 233 
 
 Clark V. Nichols, 107 Mass. 547 141 
 
 Clark V. Pinney, 7 Cow. 687 190 
 
 Clark V. Protection Ins. Co., 1 Story, 109 100 
 
 Clark V. Tucker, 2 Sandf. 157 146 
 
 Clark V. Whittaker, 18 Conn. 543 279 
 
 Clarke v. Thomas, 34 Ohio St. 46 246 
 
 Clement, etc. Co. v. Meserole, 107 Mass. 362 189 
 
 Cloud V. Clinkinbeard, 8 B. Mon. 397, 399 235 
 
 Coats V. Holbrook, 2 Sandf. Ch. 586 93 
 
 Cock V. Honychurch, T. Raym. 203, 2 Kele, 690 266 
 
 Cockerell v. Cincinnati Ins. Co., 16 Ohio, 148 216 
 
 Coddington v. Johnstone, 1 Beav. 520 15 
 
 Coe V. Cassidy, 72 N. Y. 183, 137 276 
 
 Coffeen v. Brunton, 4 McLean, 516 93 
 
 CofEman v. Hampton, 2 "Watts & S. 399 188 
 
 Cofield V. Clark, 2 Cal. 102 190 
 
 Cohen v. Dupont, 1 Sandf. 260 '. 302 
 
 Colburn v. Simms, 2 Hare, 543 78 
 
 Cole V. Patterson, 25 "Wend. 456 303 
 
 Cole V. Ryan, 52 Barb. 168 * • • ^41 
 
 Coleman v. Coleman, 2 Ves. Jr. 640, 160 226,227 
 
 Coleman T. Darling, 66 "Wis. 155 37 
 
 Coles V. Iowa State Mut. Ins. Co., 18 Iowa, 426 222 
 
 Colgan v. Danheiser, 35 Fed. Rep. 150 92 
 
 CoUaday v. Baird, 4 Phila. 139 96 
 
 Collender v. Griffith, 11 Blatchf. 211 82 
 
XXXIV TABLE OP CASES. 
 
 [References are to pages.] 
 
 Collins T. TJllon, 26 Conn. 368 276 
 
 Colt V. Mass. Arms Co. 1 Pish. 108 69 
 
 Colthran v. Forsyth, 68 Ga. 560 270 
 
 Columbia Ins. Co. t. Lawrence, 2 Pet. 25 215 
 
 Coman v. Lakey, 80 N. Y. 345 278 
 
 Combs V. Bateman, 10 Barb. 573 148 
 
 Comfort V. Kiersted, 26 Barb, 472 153 
 
 Commercial Bank of Albany v. Hughes, 17 "Wend. 94 ... . 258 
 Commercial, etc. Ins. Co. v. Union Mut. Ins. Co., 19 How. 
 
 318 209,213 
 
 Commercial Union Ins. Co. v. Hocking, 115 Pa. St. 407.. 222 
 
 Commonwealth v. Chace, 9 Pick. 15 59 
 
 Commonwealth v. Clark, 14 Gray, 267 133 
 
 Cominonwealth v. Kneeland, 30 Pick. 206, 220 84 
 
 Commonwealth v. Loveridge, 11 Mass. 337 264 
 
 Commonwealth v. Otis, 16 Mass. 198 264 
 
 Conchman v. Wright, 8 Neb. 1 275 
 
 Concklin v. Havens, 12 Johns. 314 62 
 
 Conderman v. Smith, 41 Barb. 404 138 
 
 Congregational Society v. Fleming, 11 Iowa, 533 20 
 
 Congress & Empire Spring Co. v. High Rock Congress 
 
 Spring Co., 45 N. Y. 291 93 
 
 Conner v. Carpenter, 28 Vt. 237 274,281 
 
 Conover v. Earl, 26 Iowa, 167 34 
 
 Conover v. Hoffman, 15 Abb. Pr. 100 130 
 
 Consinery v. Pearsall, 8 Jones & Sp. 114 188 
 
 Converse v. Converse, 21 Vt. 168 129 
 
 Converse v. Ferre, 11 Mass. 325 33 
 
 Conway v. Reyburn, 22 Ark. 290 203 
 
 Cooch V. Goodman, 2 Q. B. 590 269 
 
 Cook V. Com'rs of Hamilton Co., 6 McLean, 612 191 
 
 Cooke V. Millard, 65 N. Y. 352 141 
 
 Cook V. Oxley, 3 T. R. 653 134 
 
 Cook V. Patterson, 35 Ala. 102 54 
 
 Cook V. Phillips, 56 N. Y. 310 167 
 
 Coolidge y. Brigham, 1 Met. 550 271 
 
 Coombs V. Bristol & Exeter R. R. Co., 27 L. J. Ex., 101, 3 
 
 H. & N. 510 146 
 
 Coombs V. Gorden, 59 Me. Ill B51 
 
 Cooper V. Brock, 41 Mich. 488 275 
 
TABLE OF CASES. XXXV 
 
 [References are to pages.] 
 
 Cooper y. Burr, 45 Barb. 9 117 
 
 Cooper V. Davis, 15 Conn. 556, 563 14, 15 
 
 Cooper V. Presb. Ch., 32 Barb. 222 19 
 
 Cooper v. Sunderland, 3 Iowa, 114 284 
 
 Cooper y. Shepherd, 3 C. B. 266 104, 273 
 
 Cooper V. Smith, 15 East, 103 151 
 
 Cooper V. 'Woolfltt, 2 Hurl. & N. 122 ; 14 
 
 Coppin V. Coppin, 2 P. Wms. 291, 296 234 
 
 Corbyn y. French, 4 Ves. 418* 230 
 
 Corcoran v. Webster, 50 Wis. 125 278 
 
 Corn V. Mut Assurance Co., 6 Crabbe, 192 223 
 
 Cornell v. Hall, 22 Mich. 377 283 
 
 Cornell v. Lamb, 2 Cow. 652 293 
 
 Corwin y. Daly, 7 Bosw. 222 92 
 
 Cotter y. Layer, 2 P. Wms. 623, 624 131 
 
 Cotton V. Gillard, 44 L. J. (N. S.) 90 93 
 
 Coty y. Barnes, 20 Vt. 78 280 
 
 Count Phalen's Case, L. R. 9 Eq. 107 244 
 
 Cowin y. Toole, 31 Iowa, 513 263 
 
 Cowles y. Ricketts,- 1 Iowa, 582 195 
 
 Cowley y. Smyth, 46 N. J. L. 380 162 
 
 Cowling y. Cowling, 26 Beav. 449 228 
 
 Cox y. Bodflsh, 35 Me. 302 44 
 
 Cox y. Bailey, 6 M. & G. 193 144 
 
 Cox y. Griggs, 2 Fish, 174 70 
 
 Cox y. Harris, 17 Md. 23, 31 231 
 
 Craddock y. Riddlesbarger, 2 Dana (K), 205 15 
 
 Craft y. Thompson, 51 N. H. 536 263 
 
 Craig y. Kittredge, 46 N. H. 57 122 
 
 Craig y. Tappin, 2 Sandf. Ch. 78, 90 280 
 
 Grain y. Paine, 4 Cush. 483 196 
 
 Crandall y. I^ncoln, 52 Conn. 73 250 
 
 Crane y. Pratt, 12 Gray, 348 183 
 
 Crane y. Price, Webs. Pat. Gas. 409 69 
 
 Crapster y. Griffith, 2 Bland. 55 34 
 
 Crawford y. Gaulden. 33 Ga. 173 200 
 
rXXVl TABLE OF CASES. 
 
 [References are to pagres.] 
 
 Crawford v. Rolirer, 59 Md. 599 245,242 
 
 Crawford v. The William Penn, 3 Wash. 484 287 
 
 Crawford v. Rohrer, 59 Md. 590 245 
 
 Cray v. Hartford Ins. Co., 1 Blatchf . 280 221 
 
 Crease v. Babcoek, 51 Mass. 525 250 
 
 Creed v. Creed, 11 Clark & F. 491 227 
 
 Cressey v. Sabre, 17 Hun, 120 137 
 
 Creswell v. Lawson, 7 Gill & J. (Md.) ,227 126 
 
 Creuse v. Deflganlere, 10 Bosw. 122 203 
 
 Crevellng v. Wood, 95 Pa. St. 152, 158 132 
 
 Croffoot V. Bennett, 2 N. Y. 258 153 
 
 Crofoot V. Bennett, 2 N. Y. 258 156 
 
 Croft V. Day. 7 Beav. 84 95 
 
 Crommelin v. N. Y. & Harlem R. R. Co., 4 Keyes, 90. . . . 187 
 
 Crommelln v. Thiess, 31 Ala. 412 301 
 
 Crompton v. Pratt, 105 Mass. 255 277 
 
 Crook V. Cowan, 64 N. C. 743 135 
 
 Crosby v. Loop, 13 111. 625 303 
 
 Crosby v. Wadsworth, 6 East, 602 142 
 
 Crosby v. Watkins, 12 Cal. 85 190 
 
 Crosse v. Gardner, Garth. 90 170 
 
 Cross V. O'Donnell, 44 N. Y. 661 145 
 
 Crossley v. Conn. Fire Ins. Co., 27 Fed. Rep. 30 222 
 
 Crouch V. Smith, 1 Md. Ch. Rep. 401 6 
 
 Cucullu V. Hernandez, 103 U. S. 405 203 
 
 CuUen V. Bimm, 37 Ohio St. 236 171 
 
 Cumberland Valley Mut. Prot. Co. v. Schell, 29 Pa. St 31 223 
 
 Cummings v. Arnold, 3 Met. 486 ■ 271 
 
 Cummings v. Fullam, 13 Vt. 434 196 
 
 Curd V. Wunder, 5 Ohio St. 92 279 
 
 CurrJe v. Anderson, 2 E. & B. 592, 29 L. J. Q. B. 87 146 
 
 Curriess v. Mut. Ass'n Soc, 4 H. & M. (Va.) 315 222 
 
 Curry v. Woodward, 44 Ala. 305, 53 Ala. 371 239,246,252 
 
 Curtis V. Groat, 6 Johns. 168, 169 65, 104 
 
 Cusac V. Robinson, 30 L. J. Q. B. 261, 1 B. S. 299 145 
 
 Cushman v. Holyoke, 34 Me. 289 153 
 
 Cushman v. Libbey, 15 Gray, 358 182 
 
 Cushman v. North Western Ins. Co., 34 Me. 487 210 
 
TABLE OF CASES. XSXvli 
 
 IReferences are to pages.] 
 
 Cuthbert v. Cuthbert, 3 Teates, 486 227 
 
 Cuthbertv.Kuhn, 3 Whart, 357 303 
 
 Cuylerv. Cuyler, 2 Johns. 186 270 
 
 D. 
 
 Dabovlch v. Emerlc, 12 Cal. 171 191 
 
 D'Aqulla T. Lambert, 2 Eden, 77 s. c. Amb. 399 177 
 
 Dain v. Cowing, 22 Me. 347 S3 
 
 Dalton V. Midland Counties R'y Co., 13 C. B. 474 239 
 
 Dambmann v^ Schulting, 75 N. Y. 55 160 
 
 Dame v. Dame, 38 N. H. 429 144 
 
 Dana v. Fiedler, 12 N. Y. 40 190 
 
 Dana v. Munro, 38 Barb. 528 224 
 
 Danbury, etc., R. R. Co. v. Wilson, 22 Conn. 435 244 
 
 Danforth v. Culver, 11 Johns. 146 203 
 
 Danforth v. Walker, 37 Vt. 239 189 
 
 Daniel v. Owens, 70 Ala. 297 38 
 
 Daniel v. Wood, 1 Pick. 102 19 
 
 Daniels v. Bailey, 43 Wis. 566 142 
 
 Daniels v. Hudson River Fire Ins. Co., 12 Cush. 416 216,218 
 
 Daniels v. Pond, 21 Pick. 367 18 
 
 Danlelson v. Roberts, 44 Ore. 108 60 
 
 Darling v. Hubbell, 9 Conn. 350 264 
 
 Darrah v. Baird, 101 Pa. St. 265 11 
 
 Dartmouth Coll. v. Woodward, 4 Wheat. 518, 633, 636.. 38,39,101 
 
 Dauchy v. Brown, 24 Vt. 197 245 
 
 Davenport v. Peoria, etc. Ins. Co., 17 Iowa, 276 210, 213 
 
 Davidson v. Rankin, 34 Cal. 503 245 
 
 Davles V. McLean, 21 W. R. 264, 28 L. T. (N. S.), 113.. 174 
 
 Davis V. Bliss, 187 N. Y. 77 278 
 
 Davis v. Gyde, 4 Nev. & M. 462 293 
 
 Davis v. Haycock, L. R. 4 Exoh. 373 249 
 
 Davis V. Hill, 3 N. H. 382 . 153 
 
 Davis v. Howell, 3 N. J. Eq. 72 38 
 
 Davis v. Hubbard, 38 Ala. 185, 189 282 
 
XXXVm TABLE OF CASES. 
 
 [References are to pa^es.] 
 
 Davis V. Lottich, 46 N. Y. 393 31,33 
 
 Davis V. Palmer, 2 Brock. 298, 310 69 
 
 Davis V. Payne, 4 Rand. 333 296 
 
 Davis V. Steiner, 14 Pa. St. 275 203 
 
 Dawson v. King, 20 Md. 442 203 
 
 Day V. Bassett, 102 Mass. 445 277 
 
 Dayv.Pool, 52 N. Y. 416 192 
 
 Dayv.Postal Tel. Co., 7 Atl. Rep. 608 251 
 
 Day V. Watson, 8 Mich. 535 301 
 
 Dayton V. Borst, 31 N. Y. 435 246 
 
 Dayton v. Trull, 23 Wend. 345 181, 182 
 
 Dean v. Tallman, 105 Mass. 443 146 
 
 Dease v. Jones, 23 Miss. 133 201 
 
 Debow V. Colfax, 5 Halst. 128 14 
 
 Decordova v. Smith, 9 Texas, 129 152 
 
 Deming v. Foster, 42 N. H. 165 171 
 
 Deyampert v. Brown, 28 Ark. 166 182 
 
 DeKuyper v. Witteman, 23 Fed. Rep. 871 94 
 
 Delafield v. Parish, 25 N. Y. 9, 29 129, 131 
 
 Delacherois v. Delacherols, 11 H. L. Cas. 62 132 
 
 Delaware, etc. Co. v. Sansom, 1 Binn. 70 244 
 
 Delmotte v. Taylor, 1 Redf. Surr. Rep. 417 125 
 
 Demarest v. Wynkoop, 3 Johns. Ch. 129 201 
 
 Denhma v. Sankey, 38 Iowa, 269 277 
 
 Dennis v. Leclerc, 1 Mart. (Orleans T.), 297 85 
 
 Dennis v. Sharman, 31 Ga. 607 185 
 
 Denny v. Faulkner, 22 Kan. 89 280 
 
 Denny v. Parnell, 1 Rol. Abr. 591 L. 28 298 
 
 Denton v. Livingston, 9 Johns. 96 42 
 
 Darby v. Darby, 3 Drew, 495 37 
 
 Derrick v. Monette, 73 Ala. 75 135 
 
 Derringer v. Plate, 29 Cal. 292 94 
 
 Despatch Line of Packets v. Bellamy Mf'g Co., 12 N. H. 
 
 205 10 
 
 Deupree v. Deupree, 45 Ga. 415 139 
 
 Devane v. Fennell, 2 Ired. 36 153 
 
TABLE OF CASES. XXXIX 
 
 [References are to pases,] 
 
 Devane v. Larklns, 3 Jones (N, C.) , Eq. 377 , 229 
 
 Devoe v. Brandt, 53 N. Y. 462 165 
 
 Deux V. Jeffries, Cro. Eliz. 352 270 
 
 De Witt V. Berry, 134 U. S. 306 171 
 
 De Witt V. Hastings, 69 N. Y. 518 247 
 
 De Witt V. Yates, 10 Johns. 156 228 
 
 Deverer v. Voorhies, 81 N. Y. 153 , 263 
 
 Dibblee v. Sheldon, 10 Blatch. 178 165. 
 
 Dick V. Webster, 6 Wis. 481 263^ 
 
 Dickinson v. Dodds, 2 L. R. Ch. D. 463, 472 134' 
 
 Dickinson v. Hatfield, 1 Moody & Rob. 141 • 20? 
 
 Diehl V. Adams Co. Mut. Ins. Co., 58 Pa. St. 443 222 
 
 Dingwell V. Askew, 1 Cox. Eq. R. 427 232 
 
 Dinsmore v. Dinsmore, 21 Me. 433 203 
 
 Disbrow v. Jones, Hair. (Mich.) Ch. 48 207 
 
 Dlttmar v. Norman, 118 Mass. 319 133 
 
 Divine v. McCormick, 50 Barb. 116 172 
 
 Dixey V. Pollock, 8 Cal. 570 263: 
 
 Dixon T. Yates, Barn & Ad. vol. 5, 313 154 
 
 Doak v. Bank of the State, 6 Ired. (N. C.) L. 309 281 
 
 Doane v. Badger, 12 Mass. 65 33: 
 
 Dodge V. Kellock, 13 Me. 136 264= 
 
 Doe V. Mace, 7 Black, 2 14, 15 
 
 Doe d. Stewart v. Sheffield, 13 East, 526 231 
 
 Dole v. Lincoln, 31 Me. 422 117 
 
 Bollard v. Potts, 6 Allan (N. B.), 443 146 
 
 Dornick v. Reichenback, 10 Serg. & R. 84 129- 
 
 DominicTi v. Moore, 2 Bradf . Surr. 201 229 
 
 Donohoo V. Lea, 1 Swan (Tenn.), 119 232 
 
 Donaldson v. Becket, 4 Burr, 2408 77, 78 
 
 Donaldson v. Farwell, 93 U. S. 631 165 
 
 Doremus v. Howard, 23 N. J. L. 390 189- 
 
 Doughty V. Doughty, 27 N. J. Eq. 315 263 
 
 Douglass V. McAllister, 3 Cranch, 298 190' 
 
 Douglass Axe Co. v. Gardner, 10 Cush. 88 192 
 
 Dow v. Prescott, 12 Mass. 419 264 
 
 Dow V. Sanborn, 3 Allen, 181 165 
 
 Dow V. Worthen, 37 Vt. 108 148 
 
 Dowling V. McKenney, 124 Mass. 478 133 
 
XL TABLE OP CASES. 
 
 [References are to page^.] 
 
 Downer v. Smith, 32 Vt. 1 271 
 
 Dows V. Nat. Exch. Bank, 91 U. S. 618 155 
 
 Downs V. Ross, 23 Wend. 270 140 
 
 Drake v. Mitchell, 3 East. 258 104 
 
 Dr. Jaeger's Sanitary Woolen System Co. v. Boutillier, 47 
 
 • Hun, 521 91 
 
 Drury v. Smith, 1 P. Wms. 404 123 
 
 Dubois V. Dubois, 6 Cow. 494 258 
 
 Duclaud V. Rosseau, 2 La. An. 168 119 
 
 Dudley v. Cadwell, 19 Conn. 218 282 
 
 Dudley v. Hurst, 67 Md. 44 10 
 
 Duffield T. Elwees, 1 Bligh (N. S.), 497 125 
 
 Dugans v. Livingston, 15 Mo. 230 132 
 
 Duke of Queensbury v. Shebbeare, 2 EMen, 329 85 
 
 Duncan v. Self, 1 Murph. (N. C), 466 119 
 
 Dunham v. Johnson, 135 Mass. 310 205 
 
 Dunk V. Hunter, 5 Barn. & Adol. 332 293 
 
 Dunlop V. Lambert, 6 Clark & F. 600 174 
 
 Dunne v. Ferguson, 1 Hayes, 540 143 
 
 Duppa V. Mayo, 1 Saund. R. 287 295, 303 
 
 Dupper V. Mayo, 1 Saund. 276 f. n. 4 126 
 
 Dupuy V. Gibson, 36 111. 197 282, 284 
 
 Durfee v. Jones, 11 R. I. 588 54 
 
 Durkee v. Central Railway Co., 29 Vt. 127 135 
 
 Durrant v. Friend, 5 DeGex & Sm. 343 232 
 
 Dusenberry v. Hoyt, 53 N. Y. 521 269 
 
 Dustan V. McAndrew, 44 N. Y. 72 187 
 
 Dutch Church v. Mott, 7 Paige 77 41 
 
 Duvergier v. Fellows, 5 Bing. 248 42 
 
 E. 
 
 Eager t. Commonwealth, 4 Mass. 182 201. 
 
 Eagle Ins. Co. v. Lafayette Ins. Co., 9 Ind. 443 208 
 
 Eakright v. Logansport & N. Ind. R. R. Co., 13 111. 404. . . 242 
 
 Easter v. Allen, 8 Allen, 7 .'. 165 
 
 Eastman V. Avery, 23 Me. 248 281 
 
 Eastman v. Shaw, 65 N. Y. 522 195 
 
 Eastman v. Wright, 6 Pick, 316 270 
 
 Eaton V. Munroe, 52 Me. 63 64,66 
 
TABLE OP CASES. xli 
 
 [References are to pages.] 
 
 Eaton V. Whiting, 3 Pick, 484 282 
 
 Eaves v. Estes, 10 Kan. 314 11, 278 
 
 Edan V. Dudfleld, 1 Q. B. 306 147 
 
 Eddy V. Davis, 116 N. Y. 247 ' 186 
 
 Edgerton v. Hodge, 41 Vt. 676 148 
 
 Edinburgh, etc., Ry. v. Hibblewhite, 6 M. & W. 707 243 
 
 Edwards v. Grand Trunli R. R. Co., 54 Me. 105, 48 Me. 
 
 379 140, 141, 147 
 
 Eldridge v. Eldrldge, 6 Gush. 516 229 
 
 Blgee T. Cotton Cases, 22 Wall. 187 154 
 
 Elkins V. Camden, etc., R, R. Co., 36 N. J. Eq. 233 238 
 
 Ellershaw v. Magniac, 6 Ex. 570 155 
 
 Ellicott T. United States Ins. Co., 8 Gill & Johns. (Md.), 
 
 166 214 
 
 Ellington v. Charleston, 51 Ala. 166 279 
 
 Elliott v. Davenport, 1 P. Wms. 83 230 
 
 Elliott V. Porter, 5 Dana, 299 104 
 
 Elliott V. Stoddard, 98 Mass. 145 133 
 
 Ellis V. Andrews, 56 N. Y. 83 162 
 
 Ellis V. Walker, Ambler, 310 ,227 
 
 Ellison V. Brigham, 38 Vt. 64.. 141 
 
 Ellison V. Daniels, 11 N. H. 280 282 
 
 Ellison V. Ellison, 6 Ves. 656 118 
 
 Ellithorp V. Robertson, 4 Blatchf . 307 69, 70 
 
 Elmore v. Klngsgate, 5 B. & C. 583 151 
 
 Elmore v. Stone, 1 Taunt. 458 148 
 
 Enders v. Enders, 2 Barb. 362, 367 227 
 
 Engman v. Inmiel, 59 Wis. 249 202 
 
 Enoch Morgan Sons' Co. v. Schwackhoefer, 55 How. Pr. 37 95 
 
 Erskine v. Plummer, 7 Greenl. 447 143 
 
 Erwin v. Oregon Ry. & Nav. Co., 27 Fed. Rep. 635 253 
 
 Essex Co. v. Pacific Mills, 14 Allen, 389 257 
 
 Essex V. Essex, 20 Beav. 442 36 
 
 Essex Bridge Co. v. Tuttle, 2 Vt. 393 243 
 
 Evan V. Herring, 27 N. J. L. 243 295 
 
 Evans V. Coventry, 25 L. J. Ch. 489 250 
 
 Evans v. Darlington, 5 Blackf. 320 281 
 
 Evans V. Merriken, 8 Gill & J. 39 282 
 
xlii TABLE OF CASES. 
 
 IReferences are to pagres.J 
 
 Brans V. Fowls, 1 Exch. 907 267 
 
 Evans v. Roberts, 5 B. & C. 836 143 
 
 Evans V. Secrest, 2 Ind. 545 114 
 
 Evans v. Von Laer, 32 Fed. Rep. 153 92 
 
 Everett V. Hall, 67 Me. 497 277 
 
 Ewell V. Crocker, 4 Bosw. 22 224 
 
 Ex parte Smyth, 1 Swanst, 338 303 
 
 Ex parte Gladhill, 8 Met. 168, 170 278 
 
 Ex parte Gouthwait, 3 Mach. & G. 187 250 
 
 Ex parte Smith, 16 U. S. Pat. Gaz. 179 93 
 
 Ex parte Bagshaw, L. R. 4 Eq. 341 253 
 
 Ex parte Beresford, 2 Macn. & G. 197 244 
 
 Ex parte Miles, 15 Q. B. Div. 39 179 
 
 Ex parte Thompson, 4 Bradf . Surr. Rep. 154 130 
 
 Ex parte Halliday, 16 U. S. Pat. Gaz. 506 93 
 
 Ex parte Dubost, 18 Ves. 140, 150 118 
 
 Ex parte Brick Presb. Ch., 3 Edw. Ch. 155 19 
 
 Ex parte Reformed Presb. Ch., 4 Sandf . Ch. 471 20 
 
 Ex'rs of Gilmore v. Bank of Cincinnati, 8 Ohio, 62, 71. . . . 248 
 
 Eyre v. Higbee, 22 How. Pr. 198 85,87 
 
 F. 
 
 Fairbanks Canning Co. v. Metzgar, 118 N. T. 267 172 
 
 Fairbanks v. Sargent, 104 N. Y. 108 196 
 
 Fairchild v. Lynch, 99 N. Y. 359 263 
 
 Fairfield C. T. Co. v. Thorp, 13 Conn. 173 242 
 
 Fallow V. Chidester, 46 la. 588 131 
 
 Fallows V. Taylor, 7 T. R. 475 269 
 
 Falmouth v. Thomas, 1 C. & M. 105 142 
 
 Farges v. Pugh, 93 N. C. 31 165 
 
 Farina v. Home, 16 M. & W. 119 147 
 
 Farley v. Craig, 6 Halst. 262 303 
 
 Farmer v. Grose, 42 Cal. 169 276 
 
 Farmers, etc.. Bank v. Lang, 87 N. Y. 209 275 
 
 Farmers, etc.. Bank v. Logan, 74 N. Y. 568 155 
 
 Farmers' Loan & Trust Co. v. Farmers' Loan & Trust Co. 
 
 of Kansas, 21 Abb. N. C. 104 96 
 
TABLE OF CASES. xliii 
 
 [References are to pages.] 
 
 Farquharson v. Cave, 2 Coll. 356 124 
 
 Farrell v. Bean, 10 Md. 217 276 
 
 Farrow v. Bivings, 13 Rich. Eq. 25 250 
 
 Farwell v. Mather, 10 Allen, 322 150 
 
 Fassett v. Boylston, 19 Pick. 361 19 
 
 Faust's Adm'rx v. Blrner, 30 Mo. 414 231 
 
 Favorite v. Deardott, 84 Ind. 555 16 
 
 Fa-wcett V. Laurie, 1 Drew. & Sm. 192 239 
 
 Fawcett v. Oshorn, 32 111. 411 170 
 
 Faxon v. Durant, 9 Met. 330 116 
 
 Fay V. Muzzey, 13 Gray, 53 18 
 
 Feise v. Aquilar, 3 Taunt. 506 210 
 
 Fell V. Muller, 78 Ind. 507 189 
 
 Fell V. McHenry, 42 Pa. St. 41 223 
 
 Fenton v. Bradon, 2 Cranch C. C. 650 138 
 
 Ferguson v. Wilson, L. R. 2 Ch. 77 241 
 
 Ferguson V. Davol Mills, 7 Phila. 253, 2 Brewst. 214, 
 
 314 90, 93 
 
 Ferrie v. The Public Administrator, 3 Bradf. Surr. Rep. 
 
 240, 262, 263 105,107,108 
 
 Ferry v. The Bank of Central N. Y.,,15 How Pr. Rep. 445, 
 
 451 109 
 
 Fessler v. Love, 48 Pa. St. 407 191 
 
 Fetridge v. "Wells, 23 How. Pr. 385 92, 94 
 
 Fieldv. Flanders, 40 111. 470 263 
 
 Field V. Pierce, 102 Mass. 253, 261 238 
 
 FUey V. Fassett, 44 Mo. 168 94 
 
 Fine v. Hornsby, 2 Mo. App. 61 141 
 
 Finley, etc., Co. v. Hurtz, 34 Mich. 89 241 
 
 Finn v. Donahue, 35 Conn. 216 167 
 
 Finney v. Apgar, 31 N. J. L. 271 141 
 
 Fire Department of New York v. Kip, 10 Wend. 266 99 
 
 First Nat. Bank v. Bailey, 115 Mass. 230 155 
 
 First Nat. Bank t. McManigle, 69 Pa. St. 156 183 
 
 Fishback v. Van Dusen, 33 Minn. Ill, 116 33 Am. L. R. 
 
 506, note 155,169 
 
 Fisherv.Essex Bank, 5 Gray, 37B, 378 238 
 
 Fisher v. Kuhn, 54 Miss. 480 150 
 
xliv TABLE OF CASES. 
 
 {References are to pages.] 
 
 Fisher V. Murray, 1 E. D. Sm. 341 » S7 
 
 Fisk V. Attorney General, Law Rept. 4 Eq. 521 230 
 
 Fisk V.Miller, 20 Tex. 579 261 
 
 Fltchv.Burk, 38 Vt. 689 154 
 
 Fitch T. Peckham, 16 Vt. 150 234 
 
 Fitzmaurice v. Bailey, 9 H. L. C. 78 150 
 
 Flaggy. Mann, 14 Pick. 483 283 
 
 Flanders V. Barstow, 18 Me. 357 274,282 
 
 Flanders V. Chamberlain, 24 Mich. 305 280,282 
 
 Fleck V. Wamer, 25 Kan. 492 154 
 
 Fleckner v. U. S. Bank, 8 Wheat. 338 40 
 
 Fleicherman v. Newman, 16 N. Y. State Rep. 794 92 
 
 Fletcher v. Commonwealth Ins. Co., 18 Pick. 419 215 
 
 Fletcher V. Ingram, 46 Wis. 201 154 
 
 Fletcher V. McGill, 10 N. E. 651 241 
 
 Flick y. Weatherbee, 20 Wis. 392 191 
 
 Flinty. Ohio Ins. Co., 8 Ohio, 501 213 
 
 Flory y. Denny, 7 Exch. 581 275 
 
 Floyd V. Brown, 1 Rawle, 125 103 
 
 Folsom V. Marsh, 2 Story, 109, 113 82, 86, 87 
 
 Fonville v. Casey, 1 Murphy (N. C.) , 387 138 
 
 Foot V. Marsh, 51 N. Y. 288 156 
 
 Foote, Appellant, 22 Pick. 299 226 
 
 Foote V. CoMn, 3 Johns, 216 14 
 
 Foote V. Silsby, 3 Blatchf. 260 69 
 
 Forbes V. Shattuck, 22 Barb. 568 34 
 
 Forbush v. Cook, 20 Law R. 664 75 
 
 Fordv.Cobb, 20 N. Y. 344 278 
 
 Fordv.Ford, 3 Foster (N. H.), 212 232 
 
 Ford V. Ransom, 39 How. Pr. (N. S.), 416 279 
 
 Foreman v. Nelson, 2 Rich. Eq. 287 273 
 
 Forsyth v. Price, 8 Watts. 282 15 
 
 Forsyth v.Vehmyer, 177 U. S. 177 268 
 
 Fortman v. Goepper, 14 Ohio St. 558 279 
 
 Fortunate v. Patten, 147 N. Y. 277 196 
 
 Fosdick V. Shall, 99 U. S. 235, 250 153,154 
 
 Foster v. Mabe, 4 Ala. 402 144 
 
 Foster v. Smith, 18 C. B. 156 169 
 
 Fountain v. Tyler, 9 Price, 94, 104 226 
 
TABLE OF CASES. Xlv 
 
 [References are to pages.] 
 
 E>>urfh Ecclesiastical Soc. v. Mather, 15 Conn. 587 ^ 114 
 
 Fowle v. Spear, 7 Penn. Li. J. 176 94 
 
 Fowler t. Indemnity Ins. Co,, 26 N. T. 422 216 
 
 Fowler t. Stoneman, 11 Tex. 478 275 
 
 Fox T. Fox, 1 Atk. 462 235 
 
 Fox T. Horah, 1 Ired. (N. C), 358 252 
 
 Fragano t. Long, 4 B. & C. 219 157 
 
 Frank v. Calhoun, 59 Pa. St. 381 257 
 
 Frank v. Miller, 38 Md. 450 150 
 
 Franklin Ins. Co. v. Drake, 2 B. Mon. (Ky.), 47 215 
 
 Franklin Ins. Co. v. Findlay, 6 Whart. (Pa.) , 483 215 
 
 Franklin Sav. Inst. v. People's Sav. Bank 31 
 
 Franklin v. Robinson, 1 Johns. Ch. 157 34 
 
 Franklin Bridge Co. v. Wood, 14 Ga. 80 39 
 
 Frazier v. Simmons, 139 Mass. 531, 535 173 
 
 Frederick's Appeal, 52 Penn. St. 338 127 
 
 Freeman v. Baldwin, 13 Ala. 246 275 
 
 Freeman v. Freeman, 17 N. J. Bq. 44 284 
 
 Freeman t. Winchester, 18 Miss. 577 244 
 
 Freeport v. Bartol, 3 Greenl. 340 150 
 
 French v. Burns, 35 Conn. 359 276 
 
 French v. Vining, 102 Mass. 132 162 
 
 Freyman v. Knecht, 78 Pa. St. 141 192 
 
 Frost V. Johnson, 8 Ohio, 393 266 
 
 Frostbury Mining Co. v. New England Glass Co., 9 Cush. 
 
 115 145 
 
 Fry v. Breckinridge, 7 B. Mon. 31 295 
 
 Fry V. Lexington, etc., R. R. Co., 2 Mete. (Ky.) , 314 240 
 
 Fryatt v. Sullivan Co., 7 Hill, 529 61 
 
 Fryer v. Ranken, 11 Sim. 55 254 
 
 Fryer v. Roe, 12 C. B. 437, 22 Eng. L. & Eq. 440 200 
 
 Fullager v. RevUle, 3 Hun, 600 27l 
 
 Fullam V. New York, etc. Ins, Co., 7 Gray, 61 221 
 
 Fuller V. Howe, 57 N. Y. 23 247 
 
 Fullington v. Goodwin, 57 Vt. 641 10 
 
 Furgeson v. Davol Mills, 7 Phila. 253 90 
 
 Ferguson v. Miller, 1 Cow. 243 59 
 
 Ferguson v. Ray, 44 Ore. 557 
 
 55 
 
 Fergusson v. Norman, 5 Bing. N. C. 76 167 
 
Xlvi TABLE OF CASES. 
 
 [References are to pagres.] 
 &. 
 
 eaar v. Hurd, 92 111. 315 277 
 
 Gadsden r. Lance, 1 McMul. ^. 87 141 
 
 Gager v. Babcock, 48 N. Y. 154 287 
 
 Gale V. Dixon, 6 C!ow. 445 298 
 
 Gallagher v. Waring, 9 Wend. 20, 28 171 
 
 Gallup T. Jocelyn, 7 Vt. 334 61 
 
 Galpln T. Page, 18 Wall. 350 262 
 
 Gannard t. Elslava, 29 Ala. 732 119 
 
 Gaunt V. Tucker, 18 Ala. 27 123 
 
 Gano v. Hart, Hardiings (Ky.), 297 295 
 
 Gardner V. Buckbee, 3 Cow. 120 263 
 
 Gardner v. Cleveland, 9 Pick. 334 33 
 
 Gardiner v. Gardiner, 34 N. Y. 155 129 
 
 Gardner V. Joy, 9 Met. 177 141 
 
 Gardner V. Merritt, 32 Md. 78 117 
 
 Gardner v.MoBwen, 19 N. Y. 123 137 
 
 Gardner V. Printup, 2 Barb. 83, 89 230 
 
 Garforth v. Bradley, 2 Ves. 675 v 114 
 
 Garvin v. Wiswell, 83 111. 210 56 
 
 Garnett v. Macon, 6 Call. 308 270 
 
 Gates v. Bliss, 43 Vt. 299 192 
 
 Gates V. Fraser, 9 111. App. 624 31 
 
 Gates V. Green, 4 Paige, 355 300 
 
 Gates T. Madison Co. Mut. Ins. Co., 5 N. Y. 469 218 
 
 Gault V. Brown, 48 N. H. 183 144 
 
 Gebhard v. Gamier, 12 Bush. 321 103 
 
 Gee v. Pritchard, 2 Swans. 413 86 
 
 Gee V. Young, Hayw. 17 13 
 
 George v. Concord, 45 N. H. 484 256 
 
 G«orge V. Green, 13 N. H. 521 132 
 
 Germantown, etc., R'y Co. v. Fitler, 60 Pa. St. 124 242 
 
 Gheen v. Osborn, 17 Serg. & R. 171 303 
 
 Gibbon v. Ogden, 9 Wheat. 197, 227, 235, 238 112 
 
 Gibbons v. United States, 8 Wall. 269 , 189 
 
 Gibbs V. Benjamin, 45 Vt. 124 145 
 
 Gibson v. Carruthers, 8 M. & W. 337 177 
 
 Gibson v. Perry, 29 Mo. 245 301 
 
TABLE OP CASES. xlvii 
 
 [References are to pages.] 
 
 Giflord v. Carvill, 29 Cal. 589 170 
 
 Gifford V. Ford, 5 Vt. 532 281 
 
 Gillord V. Thome, 9 N. J. Eq. (1 Stock.) ,702 229 
 
 Gilbert v. N. Y. C. R. B. Co., 4 Hun, 378 153 
 
 Giles v. Comstock, 4 N. Y. 270 302 
 
 Gill V. Kauffman, 16 Kan. 571 171 
 
 Gill V. Weaver, 1 Dev. & B. (N. C.) Eq. 41 229 
 
 Gillett V. Mason, 7 Johns. 16 59 
 
 Gillott v. Esterbrook, 48 N. Y. 374 92 
 
 Gillman v. Hill, 36 N. H. 311, 318 144,146 
 
 Gilman v. Andrews, 66 Iowa, 116 191 
 
 Gilmer V. GUmer, 42 Ala. 9 226 
 
 Gilmore v. Supple, 11 P. C. 551 154 
 
 Girard v. Taggart, 5 Serg. & R. 32 188 
 
 Giroux V. Stedman, 145 Mass. 439 172 
 
 Gittlngs v. Nelson, 86 111. 591 137 
 
 Gladstone v. King, 1 Maule & S. 35 219 
 
 Gleason v. Dodd, 4 Met. 333 202 
 
 Gleason v. Drew, 9 Me. 81 271 
 
 Glenn V. Sample, 80 Ala. 159 246 
 
 Glenn V. Williams, 60 Md. 93 246 
 
 Glick V. Crist, 37 Ohio St. 388 203 
 
 Glover v. Payne, 19 Wend. 518 283 
 
 Goddard v. Binney, 115 Mass. 450 141 
 
 Godfrey v. White, 60 Mich. 443 34 
 
 Godillott V. Harris, 81 N. Y. 263 96 
 
 Godst V. Rose, 17 C. B. 229, 25 L. J. C. P. 61 147 
 
 GofE V. Craven, 34 Hun, 150 104 
 
 Golf V. Kilts, 15 Wend. 550 60 
 
 Golden v. Cockrill, 1 Kan. 259 282 
 
 Golden V. Glock, 57 Wis. 118 6 
 
 Colder v. Ogden, 15 Pa. St. 358 153 
 
 Good V. Cheeseman, 2 B. & Ad. 704 267 
 
 Goodall V. N. E. Mut. Fire Ins. Co., 5 Frost (N. H.) 169. . . 213 
 
 Goodall V. Skelton, 2 H. Bl. 316 148 
 
 Goodman v. Griffiths, H. & N. 574 151 
 
 Goodman V. Simonds, 20 How. 343 56 
 
 Goodnow V. Allen, 68 Me. 308 277 
 
sJviii TABLE OF CASES. 
 
 [References are to pa£res.J 
 
 Goodrich v. Jones, 2 Hill, 142 18 
 
 Goodwin v. Hardy, 57 Me. 143 239 
 
 Goodyear v. Day, 2 Wall. Jr. 283 69,70 
 
 Coram V. Fisher, 30 Yt. 428 146 
 
 Gordon v. Butler, 105 U. S. 553 162 
 
 Gordon V. Clapp, 113 Mass. 355 284 
 
 Gordon v. London Assurance Co., 1 Burr. 492 209 
 
 Gordon v.Norris, 49 N. H. 376 190 
 
 Gorman v. Russell, 18 Cal. 688 43, 44 
 
 Gorton v. Hadsell, 9 Cush. 508 19,20 
 
 Gosslerv. Sohepeler, 5 Daly, 476 179 
 
 Gourley v. Linsenbigler, 51 Penn. St. 345 122 
 
 Gourley v. Thompson, 2 Sneed. ( Tenn. ) , 387 132 
 
 Cowing v. Knowles, 118 Mass. 232 135 
 
 Graflenstein v. Epstein, 23 Kan. 443 162 
 
 Grafton T. Cummings, 99 U. S. 100 * 151 
 
 Graham V. Roberts, 1 Head, 56, 59 263 
 
 Granard v. Dunkin, 1 Ball & B. 207 85 
 
 Grand Tower Co. v. Phillips, 23 Wall. 471 190 
 
 Granger y. Bassett, 98 Mass. 462 42 
 
 Grantham v. Hawley, Hob. 132 13, 138 
 
 Gratz v. Redd, 4 B. Mon. 178 238 
 
 Graves v. Weld, 5 B. & Ad. 105 13 
 
 Gray y. Baker, 17 Mass. 435 19 
 
 Gray v. Barton, 55 N. Y. 68, 72 117 
 
 Gray V. Bennett, 3 Met. 522 259 
 
 Gray v. Coffin, 9 Cush. 192 245 
 
 Gray v. Davis, 10 N. Y. 285 146 
 
 Grayv.Hall, 29 Kan. 704 190 
 
 Gray V. Russell, 1 Story, 11 83 
 
 Great Northwestern Ry. Co. v. Kennedy, 4 Exch. 417, 425 244 
 
 Great Palls Mut. Fire Ins. Co. v. Harvey, 45 N. H. 292 223 
 
 Greathouse v. Dunlap, 3 McLean, 303 270 
 
 Greeley v. Waterhouse, 19 Me. 9 286, 287 
 
 Green v. Armstrong, 1 Denio, 550 142 
 
 Green v. Komegay, 4 Jones (N. C.) , L. 66 118 
 
 Green v. Merriam, 28 Vt. 801 147 
 
 Greenway v. Fuller, 47 Mich. 557 277 
 
TABLE OF CASES. xlix 
 
 [References are to pages.] 
 
 Gregory T. Schoenell, 55 Ind. 101 163 
 
 Gregory V. Stryker, 2 Den. 628 64 
 
 Gridley v. Dom, 57 Cal. 78 211 
 
 Grier v. Cowan, Addis, 347 293 
 
 Griffith V. Charlotte, etc. R. R. Co., 23 S. C. 65, 55 Am. 
 
 Rep. 1 21 
 
 Griffith V. Cowen, 13 M. & W. 58 181 
 
 Griffith V. Mangam, 73 N. Y. 611 245 
 
 Grignon v. Astor, 2 How. 319 261 
 
 Grim v. Byrd, 32 Gratt. 293 1C2 
 
 Grimes v. Van Vechten, 20 Mich. 410 145 
 
 Grlgsby t. Breckenridge, 2 Bush (Ky.), 480, 486 85,86,87 
 
 Grlssell v. Brlstowe, L. R. 3 C. P. 112 249 
 
 Griswold v. Penniman, 2 Conn. 564 114 
 
 Groat v. Glle, 51 N. Y. 431 153 
 
 Grose v. Hilt, 36 Me. 22 ' 245 
 
 Gross v. Nugent, 5 B. & Ad. 58, 65, 66 271 
 
 Grosse Isle Hotel Co. v. I'Anson's Exrs., 42 N. J. L. 10, 
 
 43 N. J. li. 442 242 
 
 Grout v. Hill, 4 Gray, 361 178 
 
 Grove v. Brien, 8 How. 429 157 
 
 Grover v. Grover, 24 Pick. 261 118 
 
 Grymes v. Hone, 49 N. Y. 17, 20 123 
 
 Guice V. Crenshaw, 60 Tex. 344 .". 190 
 
 Guier t. Pearce, 2 Brownie (Pa.), 35 202 
 
 Gunther v. Atwell, 19 Md. 157 171 
 
 Gurney v. Howe, 9 Gray, 404 183 
 
 Guthrie V. Jones, 108 Mass. 191 11 
 
 Guthrie v. Weaver, 1 Mo. App. 136 21 
 
 Guyther v. Taylor, 3 Ired. (N. C.) , Bq. 328 229 
 
 Gwin's Estate, 1 Tuck. Surr. 44 1?0 
 
 H. 
 
 Hackett v. Manlove, 14 Cal. 85 281 
 
 Hackney v. Vrooman, 62 Barb. 650 117 
 
 Haddock v. Haddock, 201 U. S. 562 262 
 
 Hadley V. Russell, 40 N. H. 109, 112 250 
 
1 TABLE OP CASES. 
 
 [References are to pages.] 
 
 Hagar v. Union National Bank, 63 Me. 509 239 
 
 Hahn v. Doolittle, 18 Wis. 196 170 
 
 Haigh v. De la Cour, 3 Camp. 319 210 
 
 Hale T.Hale, 4 Humph. 183 203 
 
 Hale v. Huntley, 21 Vt. 147 153 
 
 Hale v. Omaha Nat. Bank, 64 N. Y. 550 284 
 
 Halev.Rice, 124 Mass. 292 205 
 
 Hallv.Bellows, 11 N. J. Eq. 333 2J0 
 
 Hall V. Barrows, 8 L. T. (N. S.), 227, 9 L. T. (N. S.), 561 94 
 
 Hall V. Ditson, 52 How. Pr. 19 284 
 
 Hall V. Durham, 109 Ind. 434 261 
 
 Hall V. Gaylor, 37 Conn. 550 174 
 
 Hallv.Hall, 18 Ga. 40 KS 
 
 Hall T. Hamlin, 2 Watts (Pa.), 354 263 
 
 Hall T. Hill. 1 Dru. & War. 94. 111-133 233 
 
 Hall T. MuUln, 5 Har. & J. 190, 193 167 
 
 Hall V. Rose Hill, etc., Co., 6 Ohio St 489 239 
 
 Hall V. Sampson, 35 N. Y. 274 279 
 
 Hall V. Snowhill, 14 N. J. L. 8 280 
 
 Hall V. United States Ins. Co., 5 Gill (Md.), 484 248 
 
 Hall T. Wiles, 2 Blatchf. 194-200 69 
 
 Hall T. Williams, 6 Pick. 232 262 
 
 Hallen v. Runder, 1 C. M. & R. 267 143 " 
 
 Hallock V. Com. Ins. Co., 2 Dutch. (N. J.), 268, 3 Dutch. 
 
 (N. J.) 645 212,214 
 
 Hallowel V. Skinner, 4 Ired. (N. C.) L. 165 119 
 
 Hamaker v. Blanchard, 90 Pa. St. 377, 35 Am. Rep. 664.. 54 
 
 Hamilton v. Mitchell, 6 Blackf. 131 279 
 
 Hamilton Mut. Ins. Co. v. Hobart,.2 Gray, 543 223 
 
 Hammell v. Thurmorid, 17 Ark. 203 263 
 
 Hammers v. Dole, 61 111. 307 284 
 
 Hammett v. Linneman, 48 N. Y. 399 154 
 
 Hanley v. Donohue, 116 U. S. 1 262 
 
 Hanna V. Flint, 14 Cal. 73 36 
 
 Hanson t. Buckner, 4 Dana, 251 119, 120 
 
 Hanson v. Edgerton, 29 N. H. 357 163 
 
 Hanson v. Myer, 6 East, 614 153,157 
 
TABLE OF CASES. H 
 
 [References are to pages.] 
 
 Harbaugh v. Kohn, 52 Ind. 243 263 
 
 Harden v. McCIure, 1 Chandl. 271 140 
 
 Hare v. Pearson, 4 Ired. (N. C.) L. 76 15 
 
 Harkness v. Eraser, 12 Fla. 836 161 
 
 Harkness v. Russell, 118 U. S. 680 284 
 
 Harlow v. Ellis, 15 Gray, 229 154 
 
 Harman v. Reeve, 25 L. J. C. P. 257, 18 C. B. 586 144 
 
 Harper v. Hampton, 1 Harr. & J. 673 267 
 
 Harper v. McWhorter, 18 Ala. 229 113 
 
 Harrell v. Miller, 35 Miss. 700 143 
 
 Harriman v. Harriman, 12 Gray 341 267 
 
 Harris v. Cornell, 80 111. 54 2C3 
 
 Harris v. Eagle Ins. Co., 5 Johns. 368 210 
 
 Harris v. Harris, 23 Gratt. 737 269 
 
 Harris v. Howard, 56 Vt. 695 204 
 
 Harris v. McGovern, 99 U. S. 161 200 
 
 Harris v. Nicholas, 5 Manf. 483 137 
 
 Harris v. Pratt, 17 N. Y. 249 179 
 
 Harris v. Shipway, Bull. N. P. 182 293 
 
 Harris v. York Mut. Ins. Co.. 50 Pa. St. 341 216 
 
 Harris Mfg. Co. v. Marsh, 49 Iowa, 11 189 
 
 Harrison v. Barnsby, 5 Tenn. R. 246 294 
 
 Harrison v. Vines, 46 Tex. 15, 21 238 
 
 Hart V. Burton, 7 J. J. Marsh. 322 275 
 
 Hart V. Jewett, 11 Iowa, 276 263,273 
 
 Hart V. Rendergast, 14 M. & W. 746 202 
 
 Hartford, etc. R. R. Co. v. Boorman, 12 Conn. 530 248 
 
 Hartman v. Ogborn, 54 Pa. St. 120 261 
 
 Hartman v. Strickler, 82 Va. 225 129 
 
 Hartshorne r. Watson, 5 Scott, 506 299 
 
 Hartwell v. Bissell, 17 Johns. 128 15 
 
 Harvey v. Cherry, 76 N. Y. 436 33 
 
 Harvey V. Harvey, 127 Ind. 91 34 
 
 Hasbrouck v. Lounsbury, 26 N. Y. 598 154 
 
 Haskell v. McHenry, 4 Cal. 411 188 
 
 Haslem v. Lockwood, 37 Conn. 500 18 
 
 Hastie v. Conturier, 5 H. L. C. 673, 9 Ex. 102 137 
 
iii TABLE OF CASES. 
 
 [References are to pages.] 
 
 Hastings v. Drew, 76 N. Y. 9 238 
 
 Hastings v. Lovering, 2 Pick. 215 171 
 
 Hatch V. Atkinson, 56 Me. 323 124,125 
 
 Hatch V. Dana, 101 U. S. 205 246 
 
 Hatch V. Oil Co., 100 U. S. 131 154 
 
 Hathaway v. Moran, 44 Me. 67 167 
 
 Hathom V. King, 8 Mass. 371 129 
 
 Hathway v. Brayman, 42 N. T. 322 279 
 
 Hausman v. Nye, 62 Ind. 485 145 
 
 Havens V. Havens, 1 Sandf. Ch. 324 232 
 
 Hawkins v. Everett, 5 Jones (N. C.) Eq. 45 231 
 
 Hawley v. Upton, 102 U. S. 314 240 
 
 Hayden v. Demets, 53 N. T. 426 189 
 
 Hays V. Sulsor, 1 Fish. 532 71 
 
 Hazard v. Day, 14 Allen, 494 150 
 
 Hazlebaker v. Reeves, 12 Pa. St. 264 202 
 
 Hazleton v. Allen, 3 Allen, 114 109 
 
 Hazzard v. Irwin, 18 Pick. 95, 106 270 
 
 Hazzard v. Loring, 10 Cush. 267 276 
 
 Head v. Goodwin, 37 Me. 182 137 
 
 Headley v. Goundray, 41 Barb. 282 282 
 
 Healey v. Spence, 8 Exch. 668 267 
 
 Heart v. State Bank, 2 Dev. Eq. Ill 241 
 
 Heath v. Barmore, 50 N. Y. 302 2t;i 
 
 Heath V. Williams, 30 Ind. 495 276,283 
 
 Hederich v. Smith, 103 Ind. 203 11 
 
 Heeney v. St. Peter's Ch., 2 Bdw. Ch. 608 19 
 
 Hegan v. Johnson, 2 Taunt. 148 29? 
 
 Hegeman v. McArthur, 1 E. D. Smith, 147 SOI 
 
 Hegeman & Co. v. Hegeman, 8 Daly, 1 94 
 
 Henkle v. Dillon, 15 Ore. 610 9 
 
 Henkle v. Salem Mfg. Co., 39 Ohio St. 547 250 
 
 Hennequin v. Naylor, 24 N. Y. 139 1C5 
 
 Henry v. Jackson, 37 Vt. 431 44 
 
 Henry v. Vermillion, etc. Turnpike Co., 17 Ohio, 187 245 
 
 Henshaw V. Foster, 9 Pick. 312 130 
 
 Hensloe's Case, 9 Rep. 37, 38 107 
 
 Hepburn v. Sewell, 5 Har. & J. 211 104, 273 
 
TABLE OP CASES. liii 
 
 [References are to pages.] 
 
 Hershfleld v. Claflln, 25 Kan. 166 38 
 
 Heryford v. Davis, 102 U. S. 235 278 
 
 Hess v. Werts, 4 Serg. & R. 356 43 
 
 Hewes v. Jordan, 39 Md. 472 145 
 
 Heyland v. Badger, 35 Cal. 404. 281 
 
 Hiatt v. Griswold, 5 Fed. Rep. 573 250 
 
 Hickman v. Shimp, 109 Pa. St. 16 169 
 
 Hicliok V. Buck, 22 Vt. 149 197 
 
 Hicks v. Cleveland, 48 N. Y. 84 148 
 
 Hier v. Abraham, 82 N. Y. 519 90 
 
 Higglns V. Kusterer, 41 Mich. 318 6 
 
 Higgins v. Murray, 73 N. Y. 252 189 
 
 Higgins V. Scott, 2 B. & Ad. 413 204 
 
 Higham v. Harris, 108 Ind. 246 271 
 
 Hight V. Ripley, 19 Me. 137 '. 141 
 
 Hight v. Sackett, 34 N. Y. 447, 451 195 
 
 Hightower v. Thornton, 8 Ga. 486, 500 237, 242, 245 
 
 Hill T. Chapman, 59 Wis. 211 190 
 
 Hill V. Hollister, 1 Wilson, 129 221 
 
 Hill T. Kidd, 43 Cal. 615 211 
 
 HUl V. Smith, 32 Vt. 433 190 
 
 Hill v. Snell, 104 Mass. 173 56 
 
 Hill V. Wentworth, 28 Vt. 428 9 
 
 Hinde v. Whitehouse, 7 Bast, 558 150 
 
 Hinneman v. Rosenback, 39 N. Y. 98 257 
 
 Hitchins v. Pettengill, 58 N. H. 3 162 
 
 Hoadley v. House, 32 Vt. 179 192 
 
 Hoadley v. McLaine, 10 Bing. 482, 487 135, 138 
 
 Hobart v. Littlefield, 13 R. I. 341 155 
 
 Hobbs V. Francis, 19 How. Pr. Rep. 567 94 
 
 Hocker v. Gentry, 3 Mete. (Ky.) 463 231 
 
 Hodge V. Macauley, 25 Vt. 216 204 
 
 Hodges V. Green, 28 Vt. 358 19 
 
 Hodges T. Richmond Mfg. Co., 9 R. I. 482 144 
 
 Hodges T. Tenn. M. & F. Ins. Co., 8 N. Y. 416 276 
 
 Hodgson v. Barret, 33 Ohio St. 63 182 
 
 Hodsden v. Lloyd, 2 Br. Cr. Cas. 534 131 
 
 Hogg v. Emmerson, 6 How. 437 72 
 
liv TABLE OF CASES. 
 
 tReferences are to pases.] 
 
 Hogins V. Plympton, 11 Pick. 97 169,171 
 
 Hoffman v. Carow, 22 Wend. 285 56,118 
 
 Holbrook V. Chamberlin, 116 Mass. 155 11 
 
 Holderness v. Shackles, 8 B. & C. 612 35 
 
 Holford V. Wood, 4 Ves. 76 228 
 
 Holland v. Lyns, 56 Ga. 56 184 
 
 Holland v. Rea, 48 Micji. 218 187 
 
 Holland v. Trotter, 22 Gratt. 136 263 
 
 HoUister v. Abbott, 31 N. H. 442 263, 273 
 
 Hollzapffel v. Baker, 18 Ves. 415 300 
 
 Holman v. Lock, 51 Ala. 287 277 
 
 Holmes v. Charlestown Mut. Fire Ins. Co., 10 Met. 211.. 210 
 
 Holmes v. Gilman, 138 N. Y. 369 66 
 
 Holmes V. Hlggins, 1 B. & C. 74 43 
 
 Holmes t. Mitchell, 7 C. B. N. S. 361 151 
 
 Holmes V. Tremper, 20 Johns, 29 10 
 
 Holroyd v. Marshall, 10 H. L. C. 191 138 
 
 Holt V. Johnson, 14 Johns. 425 296 
 
 Homer v. Perkins, 124 Mass. 431 162 
 
 Hone V. Mut. Safety Ins. Co., 1 Sandf. 137 1 209 
 
 Hooper v. Hudson River Ins. Co., 17 N. Y. 424, 426 216 
 
 Hoover v. Peters, 13 Mich. 51 172 
 
 Hope T. Bddington, Lalor, 43 301 
 
 Hope V. Hutchins, 9 Gill & J. (Md.) 77 119 
 
 Hopkins v. Tanqiieray, 23 L. J. C. P. 162, 15 C. B. 130. . 169 
 
 Hopson V. Fountain, 5 Humph. (Tenn.) 140 254 
 
 Hopwood V. Hopwood, 7 H. L. Cas. 728 233 
 
 Home V. Home, 9 Ired. (N. C.) L. 99 129 
 
 Horner v. Carter, 11 Fed. Rep. 362 252 
 
 Horr V. Baker, 8 Cal. 603 153 
 
 Hornbostel v. Kinney, 52 N. Y. Super. Ct. 41 92 
 
 Horton v. Buffington, 105 Mass. 399 167 
 
 Hostetter v. Adams, 20 Blatchf. C. C. 326 90, 92 
 
 Hotchkiss V. Greenwood, 11 How. 248 69 
 
 Hotham v. East India Co., 1 Doug. 272, 277 167 
 
 House V. Grant, 4 Lans. 296 123 
 
TABLK OF CASES. Ik 
 
 IReferences are to pages.] 
 
 Housemire v. Moulton, 15 Ind. 367 267 
 
 Houston V. Moore. 5 Wheat. 34, 49, 52, 54 112 
 
 Hovey v. Henry, Law J. 153 71 
 
 How V. Gunn, 32 Beav. 462 85 
 
 Howard v. Albany Ins. Co., 3 Denio, 301 216 
 
 Howard v. Coke, 7 B. Mon. (Ky.) 655 129 
 
 Howard v. Daly, 61 N. Y. 362 135 
 
 Howard v. Doolittle, 3 Duer, 464 301 
 
 Howard v. Emerson, 110 Mass. 321 172: 
 
 Howard v. Fessenden, 14 Allen, 124 US 
 
 Howard V. First Parish, 7 Pick. 138 20 
 
 Howard v. Gunn, 32 Beav. 462 86 
 
 Howard v. Harris, 8 Allen, 297 133 
 
 Howard v. Hoey, 23 "Wend. 350 171 
 
 Howard v. Rawsay, 7 Harr. & J. 120 296 
 
 Howe V. Batchelder, 49 N. H. 204, 319 14,143 
 
 Howe V. Hayward, 108 Mass. 54 148 
 
 Howe V. Howe, 1 N. H. 49 29» 
 
 Howe V. Starkweather, 17 Mass. 240 42 
 
 Howe V. Stevens, 47 Vt. 262 19 
 
 Howell V. Schenck, 4 Gabe, 89 14 
 
 Howell V. Young, 5 B. & C. 259 100 
 
 Howes V. Bigelow, 13 Mass. 384 114 
 
 Howland v. Coffin, 12 Pick. 125 298 
 
 Hoxie V. Chaney, 143 Mass. 592, 58 Am. Rep. 149 94 
 
 Hoydon v. Green, 56 Iowa, 733 270 
 
 Hoyt V. Hartford Ins. Co., 26 Hun, 416 156 
 
 Hoyt V. Mackenzie, 3 Barb. Ch. 320 86 
 
 Hubbard v. Hubbard, 8 N. Y. 196 130 
 
 Hubbard v. Rowell, 51 Conn. 423 191 
 
 Huddersfield Canal Co. v. Buckley, 7 T. R. 36 248 
 
 Hudson V. Porter, 13 Conn. 59 1& 
 
 Hudson V. Weir, 29 Ala. 294 i 141 
 
 Huff V. Hires, 39 N. J. L. 4 153^ 
 
 Huff V. McCauley, 53 Pa. St. 206 14^ 
 
 Hughes v. AnUetam Mfg. Co., 34 Md. 316 24a 
 
 Hughes V. Edwards, 9 Wheat. 500 282 
 
 Hughes v. Shealt, 19 Iowa, 335 283: 
 
 e 
 
Ivi TABLE OP CASES. 
 
 [References are to pages.] 
 
 Hughes V. Vermont Cop. Mining Co., 72 N. Y. 207, 210 238 
 
 Hull V. Carnley, 2 Duer, 99 281 
 
 Hull V. Fields, 76 Va. 591 163 
 
 Hull V. Hull, 48 Conn. 250 137 
 
 Humble v. Oliver, Cro. Eliz. 328 298 
 
 Humphreys v. Comline, 8 Blatchf . 516 172 
 
 Humphreysville, etc. Co. v. Vermont, etc. Co., 33 Vt. 92. 190 
 
 Humphries v. Humphries, 3 Ired. 362 15 
 
 Hungate v. Reynolds, 72 111. 425 284 
 
 Hunt V. Bates, 7 R. I. 217 103 
 
 Hunt V. Cope, Cowper, 242 302 
 
 Hunt V. Hecht, 8 Ex, 814, 22 L. J. Ex. 293 146 
 
 Hunt V. Hunt, 72 N. Y. 217, 240 262, 263 
 
 Hunter v. Blain, 2 Bailey, 168 294 
 
 Hunter v. Bosworth, 43 "Wis. 583 138 
 
 Hunter v. Loconte, 6 Cow. 728 294 
 
 Hunter v. Wetsell, 17 Hun, 135 148, 149 
 
 Hunter v. "Westell, 84 N. Y. 594, 38 Am. Rep. 544 173 
 
 Hunter v. "Wetsel, 84 N. Y. 544 14J, 149 
 
 Huntington v. Hall, 36 Me. 501 170 
 
 Huntley v. "Whittier, 105 Mass. 391 184 
 
 Hunton v. Nichols, 55 Tex. 217 260 
 
 Hurd V. Cook, 75 N. Y. 454 154 
 
 Hurd V. "West, 7 Cow. 752 197 
 
 Hurford v. Harned, 6 Oreg. 362 276 
 
 HurfE V. Hires, 39 N. J. L. 4 156 
 
 Hurlburt v. Hurlbut, 49 Hun, 189 117 
 
 Hurry v. The John and Alice, 1 "Wash. 293 287 
 
 Hutchins v. Masterson, 46 Tex. 551 11 
 
 Hutchings v. Miner, 46 N. Y. 456 117 
 
 Hutchinson v. Dubois, 45 Mich. 143 38 
 
 Hutchinson v. Hunter, 7 Pa. St. 140 153, 15G 
 
 Hutchinson v. Scott, 2. Mees & W. 809 295 
 
 Hutzler v. Lord, 64 Md. 534 249 
 
 Huwer v. Dannenhofeer, 82 N. Y. 499, 502 92, 95 
 
 Huxley ▼. King, 40 Mich. 73. 263 
 
 Hyatt et al. v. Allen, 56 N. Y. 553 42 
 
 Hyde v. Cookson, 21 Barb. 92 60 
 
 Hyde v. Stone, 9 Cow. 230 33,113 
 
TABLE OF CASES. Ivii 
 
 [References are to page3.] 
 
 I. 
 
 Ide T. Stanton, 15 Vt. 685 140, 150,151 
 
 Idley V. Bowen, 11 Wend. 227 131 
 
 Idol V. Jones, 2 Dev. (N. C.) L. 162 60 
 
 lies v. Cox, 83 Ind. 577 270 
 
 Ilsley V. Stubbs, 9 Mass. 65, 71 179 
 
 Indianapolis, etc., R. R. Co. v. Maguire, 62 Ind. 140 189 
 
 Ing V. Bro-wn, 3 Md. Ch. 521 274 
 
 In re Pye, ex parte, 18 Ves. 140, 153 233 
 
 Zn re Burka, 5 Am. B. R. 12 267 
 
 In re Dyer, 1 Hagg. 219 130 
 
 In re Lewes' Trusts, Law Rep. 11 Eq. 236 230 
 
 In re Marcus, 5 Am. B. R. 19 267 
 
 In re Moore, 6 Am. B. R. 590 268 
 
 In re Powell, 5 Jur. N. S. 331 254 
 
 In re Pratt, 10 U. S. Pat. Gaz. 866 93 
 
 Instone v. Frankford Bridge Co., 2 Bibb. 576 244 
 
 Insurance Co. v. Chase, 5 "Wall. 509 218 
 
 Insurance Co. v. Connor, 17 Pa. St. 136 223 
 
 International Harv. Co. v. Lyman, 10 Am. B. R. 450 269 
 
 Irish V. Nutting, 47 Barb. 370 117, 122, 124 
 
 Iron Cliffs Co. v. Buhl, 42 Mich. 86 156 
 
 Irrine v. Stone, 6 Cush. 608 140 
 
 J. 
 
 Jack V. Smith, 1 Bay, 315 293 
 
 Jackson v. Covert, 5 Wend. 139 140 
 
 Jackson v. Eddy, 12 Mo. 209 301 
 
 Jackson V. Housel, 17 Johns. 281, 283 1 
 
 Jackson v. Johnson, 5 Cow. 74 201 
 
 JaoEson v. Sheldon, 5 Cow. 448 294 
 
 Jackson V. SUckhouse, 1 Cow. 122 269,270 
 
 Jackson v. Twenty-third St B. Co., 88 N. Y. 520, 526 117 
 
 Jackson V. Watts, 1 McCord, 288 148 
 
 Jackson v. Wheat, 18 Johns. 40 201 
 
iviii TABLE OF CASES. 
 
 [References are to pages.] 
 
 Jackson's Adm'rs v. Newark Plank Road Co., 31 N. 3. 
 
 Law, 277 239 
 
 James v. Bocage, 45 Ark. 284 169 
 
 James V. Muir, 33 Mich. 224 138 
 
 James v. Parry, 35 Albany L. J. 12, 55 L. T. Rep. N. S. 415 93 
 
 James v. Woodruff, 10 Paige, 541 251 
 
 James v. Woodruff, 2 Denio, 574 44 
 
 Jarrold v. Houlston, 3 Kay & J. 708 83 
 
 Jefferys v. Boosey, 4 H. L. C. 962 78 
 
 Jefferys v. Jefferys, Craig & P. 138, 24 L. T. Rep. N. S. 177 251, 270 
 
 Jeffries v. Great Western R. R. Co., 34 Eng. L. & Eq. 122 54 
 
 Jelks V. Barrett, 52 Miss. 315 150 
 
 Jenkins v. Fowler, 63 N. H. 244 254 
 
 Jenkins v. Norton, 3 B. Mon. (Ky.), 28 299 
 
 Jenkins v. Powell, 2 Vern. 115 233 
 
 Jenkyns v. Usborne, 7 M. & G. 678, 698, 8 Scott, N. R. 505 179 
 
 Jenness v. Wendell, 51 N. H. 63, 67 145 
 
 Jennings v. Chenango Co. Mut. Ins. Co., 2 Denio, 75 217 
 
 Jennings v. Ins. Co. of Pa., 4 Binn. 244 286 
 
 Jewett V. Smith, 12 Mass. 309 107 
 
 Johnson v. Buck, 35 N. J. L. 339 150 
 
 Johnson v. Crawf ordsville R. R, Co., 11 Ind. 258 242 
 
 Johnson v. Dodgson, 2 M. & W. 656 145 
 
 Johnson v. Hunt, 11 Wend. 135 61 
 
 Johnson V. Jefries, 30 Mo. 423 282 
 
 Johnson V. Johnson, 30 111. 215 260 
 
 Johnson v. Oppenheim, 55 N. Y. 291 176 
 
 Johnson v. Root, 2 Pish. 291 70 
 
 Johnson v. Shippin, 2 Ld. Raym. 984 288 
 
 Johnson v. Underhill, 52 N. Y. 203 249 
 
 Johnson V. Willis, 7 Gray, 164 185 
 
 Johnston v. Marinus, 18 Abb. N. C. 72 21 
 
 Jones V. Barkley, 2 Doug. 684-691 169 
 
 Jones V. Creveling, Harr. N. J. 127 228 
 
 Jones T. Davis, 35 Ohio St. 474, 477 238 
 
 Jones V. Emery, 40 N. H. 348 160 
 
 Jones V. Flint, 10 A. & E. 755 143 
 
 Jones V. Jones, 91 Ind. 378 200 
 
TABLE OP CASES, lix 
 
 [References are to pages.] 
 
 Jones V. Mechanics' Bank, 29 Md. 287 146 
 
 Jones V. Rimmer, 14 L. R. Ch. D. 588, 592 161 
 
 Jones V. Savage, 6 Wend. 658 181 
 
 Jones v. Selby, Free. Ch. 300 124 
 
 Jones V. Thomas, 8 Blackf . 428 14, 15 
 
 Jones v. Towne, 58 N. H. 462 19 
 
 Jordan v. James, 5 Ohio, 88 178 
 
 Jordan t. Norton, 4 M. & W. 155 134 
 
 Joy v. Schloss, 12 Daly, 533 141 
 
 Joyce V. Adams, 8 N. T. 291 153 
 
 Joyce V. Swann, 17 C. B. (N. S.). 84, 101 135 
 
 Judson v. Cope, 1 Fish. 615 71 
 
 Junction R. R. Co. v. Reeve, 15 Ind. 236 240 
 
 Jurgensen v. Alexander, 24 How. Pr. R. 269 . . 97 
 
 Justice T. Lang, 42 N. Y. 493 152 
 
 K 
 
 Kansas City Hotel Co. v. Hunt, 57 Mo. 126 240 
 
 Kase v. John, 10 Watts, 107 192 
 
 Kay v. Waghorn, 1 Taunt. 428 267 
 
 Kean v. Johnson, 9 N. J. Eq. 401 253 
 
 Kearney v. Macomb, 16 N. J. Eq. 189 284 
 
 Keeler v. Salisbury, 33 N. Y. 648 267 
 
 Keene v. Kimball, 16 Gray, 645 83 
 
 Keffer v. Grayson, 76 Va. 517 270 
 
 Keller v. Tutt, 31 Mo. 301 133 
 
 Kell v. Charmer, 23 Beav. 195 130 
 
 Keller v. Paine, 34 Hun, 167, 107 N. Y. 83 281 
 
 Kelley v. Mariposa, etc. Co., 4 Hun, 632 253 
 
 Kellogg V.Dickinson, 18 Vt. 266 20 
 
 Kellogg v. Stockwell, 75 111. 68 249 
 
 Kellogg v.Witherhead, 4 Hun, 273 141 
 
 Kelly V. Commonwealth Ins. Co., 10 Bosw. 82 213 
 
 Kellyv.Mlze, 3 Sneed (Tenn.), 59 273 
 
 Kelly T.Thompson, 7 Watts, 401 283 
 
Ix TABLE OF OASES. 
 
 tReferences are to pages.] 
 
 Kemp V. Falk, 7 App. Cas. 573, 581 178 
 
 Kenebel t. Scrafton, 2 East, 630 131 
 
 Kent V. Ginten, 23 Ind. 1 191 
 
 Kentv. Huskinson, 3 B. & P. 233 ■ 146 
 
 Kentucky Mut. Co. v. Jenks, 5 Ind. 96 214 
 
 Kenworthy v. Scofleld, 2 B. & C. 945 150 
 
 Kerley v. Clay, 4 Bibb. 241 34 
 
 Kerneyer v. Newbt, 14 Kan. 164 182 
 
 Kerr V. Condy, 9 Bush (Ky.) 372 262 
 
 Kerrv.Kerr, 41 N. Y. 272 262 
 
 Kesler V. HcConachy, 1 Rawie, 335 296,302 
 
 Ketchum V. Buffalo, 14 N. Y. 356 41 
 
 Keyling's Case, 1 Eq. Cas. Abr. 239, pi. 25 234 
 
 Kibble v. Gough, 38 L. T. (N. S.), 204 146 
 
 Kidder v. Kidder, 33 Pa. St. 268 269 
 
 Kimball T. Aetna Ins. Co., 9 Allen, 540 218 
 
 Kimball V. Rowley, 24 Pick. 347 19 
 
 Kimball v. Vorman, 25 Mich. 310 192 
 
 Kimberlyv.Patchln, 19 N. Y. 330 153,156 
 
 Kimberly, Matter of, 150 N. Y. 90 31 
 
 Kincald's Appeal, 66 Pa. St. 411 19,20 
 
 King V. Earbury, Fort. 37 100 
 
 King V. Jarman, 35 Ark. 190 147 
 
 King V. Patterson, etc. R'y Co., 29 N. J. Law, 404 239 
 
 King V. Strong, 9 Paige, 105 228 
 
 Kingman v. Spurr, 7 Pick. 235 44 
 
 Kingsbury v. Collins, 4 Bingh. 209 13 
 
 Kingsford v. Merry, 11 Ex. 577, 25 L. J. Ex. 166 165 
 
 Kingsley V. Holbrook, 45 N. H. 313, 319 14,142 
 
 Kingsley v. N. E. Mut. Fire Ins. Co., 8 Cush. 393 217 
 
 Kinna v. Smith, 2 Green. Ch. 14 282 
 
 Kinne V. Johnson, 60 Barb. 69 129 
 
 Kinne V. Kinne, 9 Conn. 102 ' 129 
 
 Kinnebrew v. Kinnebrew, 35 Ala. 628 .., 270 
 
 kinsey v. Bailey, 9 Hun, 420 278 
 
 Kirby v. Johnson, 23 Mo. 354 147 
 
 Kirk V. Edows, 3 Hare, 509 233 
 
 Kistler v. Hereth, 75 Ind. 177 200 
 
TABLE OP CASES. Ixi^ 
 
 [References are to pages.] 
 
 Klttredge t. Woods, 3 N. H. 503 13 
 
 Klein v. Seibold, 89 111. 540 B4 
 
 Klelnwort v. Maittlna, 2 App. Cas. 156 , 287 
 
 Klock T. Walter, 70 111. 416 276 
 
 Knapp T. Winchester, 11 Vt. 351 54 
 
 Kneass v. The Schuylkill Bank, 4 Wash. 9, 11 68, 75 
 
 Knight T, Bennett, 3 Bing. 361 293, 
 
 Knight T. Mann, 118 Mass. 143 147 
 
 Knight v. Wall, Dev. & B. (N. C.) L. 125 231 
 
 Knott V. Morgan, 3 Keen, 213 97 
 
 Knowles t. Gas Light Co., 19 Wall. 58 , 262 
 
 Knox V. Campbell, 1 Pa. St. 366 32 
 
 Kohl V. LIndley, 39 111. 195 173 
 
 Kohl T. United States, 91 U. S. Rep. 367 ' 4 
 
 Kohne y. Ins. Co. of North America, 1 Wash. (U. S. C. 
 
 C), 93 213 
 
 Kounts T. Fitzpatrick, 72 Pa. St. 376 138 
 
 Kraft V. Hurtz, 11 Mo. 109 173 
 
 Krebs v. Carlisle Bank, 2 Wall. Jr. (C. C), 33 251 
 
 Kribs T. Jones, 44 Md. 396 190 
 
 Kriete v. Myer, 61 Md. 558 152: 
 
 Krohn v. Bautz, 68 Ind. 277 148; 
 
 Krulder T. Ellison, 47 N. Y. 36 157 
 
 L. 
 
 Lackey v. Stouder, 2 Ind. 376 170 
 
 Lacustrine Fert. Co. v. Lake Guano Co., 82 N. Y. 476.... 142 
 
 Lacy V. Kinnaston, 3 Salk. 298 270 
 
 Ladd V. Thomas, 12 Ad. & El. 117 294 
 
 La Grange v. Ward, 11 Ohio, 257 263 
 
 Lagrange V. Ward, 11 Ohio, 257 273 
 
 Laidley v. Bright, 17 W. Va. 779 265 
 
 Lamb v. Crafts, 12 Met. 358 141 
 
 Lamore ▼. Frisbie, 42 Mich. 186 185 
 
 Lamottv. Stenett, 1 Harr. & J. 42 301 
 
 Lamphere v. Lowe, 3 Neb. 131, 134 277 
 
 Landon v. Emmons, 97 Mass. 37 280 
 
 Landreth v. Landreth, 22 Fed. Rep. 41 94 
 
 Lane County v. Oregon, 7 Wall. 71 257 
 
Ixii TABLE OP CASES. 
 
 [References are to pagrea.] 
 
 Lane t. Gluckauf, 28 Cal. 288 257 
 
 Lane v. King, 8 Wend. 584 14, 15 
 
 Larrabee v. Baldwin, 35 Cal. 155, 168 103 
 
 Lassell V. Reed, 6 Oreenl. 222 18 
 
 Latham t. United States, 1 U. S. Ct. CI. 149 256 
 
 Lauferty v. Wheeler, 11 Abb. N. 0. 220 247 
 
 Laughton t. Atkins, 1 Pick. 535 131 
 
 Lauman v. Lebanon Valley R. R. Co., 30 Pa. St. 42 253 
 
 Laurence t. Hopkins, 13 Johns. 288 203 
 
 Laurence Co. v. Lowell Mills, 129 Mass. 325 92 
 
 "Law of Burial," 4 Bradf. Surr. R. 403-532 21 
 
 Lawrence v. Dana, 2 Am. T. R. N. S. 423, 2 Am. L. T. R. 
 
 N. S. 402 , 83 
 
 Lawrence v. French, 25 Wend. 443 302 
 
 Lawrence Manuf. Co. v. Lowell Hosiery Mills, 37 Am. 
 
 Rep. 362, 129 Mass. 325 90 
 
 Lawrence v. Wright, 23 Pick. 128 107 
 
 Lawson v. Lawson, 1 P. Wms. 441 121 
 
 Leake T. Robinson, 2 Mer. 363, 393 228 
 
 Lee T. Biddis, 1 Dall. 175 254 
 
 Lee V. Blendy, 2 Fish. 89 75 
 
 Lee T. Kilburn, 3 Gray, 594 109 
 
 Lee T. Mahony, 9 Iowa, 344 150 
 
 Legal Tender Cases, 12 Wall. 457 255, 256, 257 
 
 Legg V. Legg, 8 Mass. 99 114 
 
 Leggett V. Hyde, 58 N. Y. 272 36 
 
 Leicester v. Hoadley, 9 Am. B. R. 379 268 
 
 Leidersdorf v. Flint. 8 Biss. C. C. 327". 91 
 
 Leigh V. Savidge, 14 N. J. Eq. 124 132 
 
 Leland V. Medora, 2 Woodf. & M. 92, 105 289 
 
 Leland v. Sprague, 28 Vt. 746 277 
 
 Leland v. The Ship Medora, 2 Woodf. & M. 92 286 
 
 Leonard v. Fowler, 44 N. Y. 289 171 
 
 Leonard V. Pitney, 5 Wend. 30 200 
 
 Leonard v. Scarborough, 2 Ga. 73 33 
 
 Lepage v. McNamara, 5 Iowa, 124 126 
 
 LeRoy v. Globe Ins. Co., 2 Edw. Ch. 657 42 
 
 Lerned v. Wannemacher, 9 Allen, 412 150 
 
TABLE OP CASES. Ixiii 
 
 [References are to pages.] 
 
 Lester v. East, 49 Ind. 588., 133,154 
 
 lietcher v. Norton, 5 111. 575 281 
 
 Lewis V. Greider, 49 Barb. 606 187 
 
 Lewis V. Jones, 5 Harris, 226 18 
 
 Lewis V. Ocean N. & P. Co., 125 N. Y. 350 11 
 
 Lewis y. Rogers, 16 Pa. St. 18 261,263 
 
 Lewis V. Rosier, 16 "West. Va. Rep. 333 6, 142 
 
 Lightburn v. Cooper, 1 Dana, 273 192 
 
 Lilllewhlte v. bevereaux, 15 M. & W. 285 147 
 
 Lillie V. Dunbar, 62 Wis. 198 142 
 
 Lincoln v. Erie Preserving Co., 132 Mass. 129 151 
 
 Lincoln T. Tower, 2 McLean, 473 262 
 
 Lindeman v. Ingham, 36 Ohio St. 1, 9 280 
 
 Linden v. Eldren, 49 Wis. 305 187 
 
 Lindeneau v. Desborough, 3 Man. & Ry. 45 219 
 
 Lindsay v. Winona & St. Peter R. R. 43 Am. Rep. 228, 29 
 
 Minn. 411 61 
 
 Lingham v. Eggleston, 27 Mich. 324 153 
 
 Linn v. Minor, 4 Nev. 462 257 
 
 Linsell v. Bonsor, 2 Bing. N. C. 241 204 
 
 Lintonv. Hart, 25 Pa. . St. 193 303 
 
 Linton v. Porter, 31 111. 107 170 
 
 Lister v. Hodgson, Law. Rep. 4 Eq. 30, 36 270 
 
 Little V. Gould, Blatchf. 165, 362 80 
 
 Livermore v. White, 74 Me. 456 54 
 
 Lobley v. Stocks, 19 Beav. 392 228 
 
 Lock V. Wilson, 9 Heisk. 784, 10 Heisk. 441 204 
 
 Lockhart v. Van Alstyne, 31 Mich. 76 238 
 
 Logan V. La Mesurier, 6 Moore P. C. 116 153 
 
 Logan V. Plummer, 70 N. C. 388 270 
 
 Long V. Milar, 4 C. P. D. 450; C. A 151 
 
 Longv. White, 42 Ohio St. 59 144 
 
 Long Dock Co. v. Mallory, 12 N. J. Eq. 93 285 
 
 Loomis V. Decker, 1 Daly,. 186 202 
 
 Lord Southampton v. Brown, 6 Bam. & C. 718 299 
 
 lioring v. Bacon, 4 Mass. 575 33 
 
 Losh V. Hague, 1 Web. Pat. Cas. 207 69 
 
 Lothrop v. Stedman, 13 Blatchf. 134 252 
 
Ixiv TABLE OF CASES. 
 
 IReferences are to pages.] 
 
 Loughran v. Ross, 45 N. Y. 772 IJ 
 
 Louisiana v. Mayor, 109 U. S. 285 103 
 
 Lore V. Blair, 72 Ind. 281 276 
 
 Lowber v. Connit, 36 Wis. 176 152 
 
 Lowell V. Lewis, 1 Mass. 182 ; 69, 70 
 
 Lowndes v. Anderson, 13 East. 130 56 
 
 Lowndesv. Stanford, 18 Q. B. 425 222 
 
 Lowrey v. Craig, 30 Miss. 19 114 
 
 Lowrey v. MechafEey, 10 Watts, 387 152 
 
 Loyd V. Wight, 20 Ga. 578 145 
 
 Lucas v. Dorrien, 7 Taunt. 278. 147 
 
 Lucas V. Jefferson Ins. Co., 6 Cow. 635 209 
 
 Lucena v. Crawford, 2 New Rep. 301 214 
 
 Lucena v. Crawford, 2 Bos. & Pul. N. R. 300 207 
 
 Lucy V. Bundy, 9 N. H. 278 271 
 
 Ludlam's Estate, 1 Harris, 188 226 
 
 Ludwell V. Newman, 6 Tenn. 458 302 
 
 Lukens v. Freiund, 27 Kan. 664 172 
 
 Lum V. Robertson, 6 Wall. 277 252 
 
 Lunn v. Thornton, 1 C. B. 379 137 
 
 Lycoming, etc. Ins. Co. v. UpdegraiC, 40 Pa. St 311 220 
 
 Lyman v. Robinson, 14 Allen, 242, 254 212 
 
 Lynch v. Dalzell, 3 Bro. P. C. 492 216 
 
 Lynde t. Rowe, 12 Allen, 101 15 
 
 M. 
 
 Maberly ▼. Sheppard, 10 Blng. 99 146 
 
 Macauley v. Robinson, 18 La. An. 619 244 
 
 Mack V. Mack, 3 Hun, 323 120 
 
 Mactler v. Frith, 6 Wend. 103 135 
 
 Magee v. BUlingsley, 3 Ala. 679 192 
 
 Maguire v. Park, 140 Mass. 21 10 
 
 Maher v. Riley, 17 Gal. 415 191 
 
 Mahoney v. Bland, 14 Ind. 176 113 
 
 Malone v. Mooring, 40 Miss. 247 226 
 
 Mamma v. The Potomac Co., 8 Peters, 281, 286 251 
 
 Man V. Man, 2 Str. 905 230 
 
TABLE OF CASES. LXV 
 
 [References are to pages.] 
 
 Mandell v. Buttles, 21 Minn. 391 192 
 
 Manhattan Medicine Co. v. Wood, 108 U. S. 218 94 
 
 Mann v. Cook, 20 Conn. 178 244 
 
 Manning v. Gasharie, 27 Ind. 399 45 
 
 Manning v. Mltcherson, 47 Am. Rep. 764, 69 Ga. 447 59 
 
 Manning v. Thesslnger, 3 Mylne & K. 29 228 
 
 Manny v. Jagger, 1 Blatchf. 372 69, 70 
 
 Many v. Sizer, 1 Fish. 17 70 
 
 March V. Freeman, 3 Lev. 383 299 
 
 Marine Bank v. Wright, 48 N. Y. 1 155 
 
 Marks t. Ryan, 63 Cal. 107 11 
 
 Marquand v. N. Y. Manuf . Co., 17 Johns. 535 44 
 
 Marriott v. Thompson, Willes, 186, 189 265 
 
 Marsden v. Cornell, 62 N. Y. 215 279 
 
 Marsh v. Burroughs, 1 Wood, 463 240, 246 
 
 Marsh v. Fuller, 18 N. H. 360 , 117 
 
 Marsh v.Pier, 4 Rawle, 273 103 
 
 Marsh v. Rouse, 14 N. Y. 643 147 
 
 Marsh V. Webber, 13 Minn. 109 170 
 
 Marshall V. Crow's Adm'r, 29 Ala. 278 34 
 
 Marshall v. Ferguson, 23 Cal. 65 143 
 
 Marshall V. Green, 1 C. P. D. 35 142,143 
 
 Marshall v. Jamison, 42 Up. Can. Q. B. 120 136 
 
 Marston v. Marston, 1 Fost. 491 119 
 
 Martin T. Adams, 104 Mass. 262 132 
 
 Martin v. Berry, 2 Bankr. Reg. 629, 37 Cal. 208 112 
 
 Martin v. Broach, 6 Ga. 21 203' 
 
 Martin V. Hunter, 1 Wheat. 304 273 
 
 Martin V. Thompson, 62 Cal. 618, 45 Am. Rep. 663 ,61 
 
 Martineau v. Kitching, L. R. 7 Q. B. 436 153 
 
 Martinetti v. Maguire, 1 Deady, 216 83 
 
 Matrick v. Linfleld, 21 Pick. 325 119 
 
 Marvin v. Treat, 37 Conn. 96 56 
 
 Marx V. Davis, 56 Miss. 745 285 
 
 Maryland v. Railroad Co., 22 Wall. 105 257 
 
 Mason v. Dicker, 72 N. Y. 598 152 
 
 Mason V. Connell, 1 Whart. 381 44 
 
 Mason V. Decker, 72 N. Y. 595, 599 187,189 
 
Ixvi TABLE OP CASES. 
 
 [References are to pages.] 
 
 Mason v. Hackett, 4 Nev. 420 30 
 
 Mason v. Lothrop, 7 Gray, 355 133 
 
 Mason V. Moyers, 2 Rob. (Va.), 606 13 
 
 Masters v. Masters, 1 P. Wms. 424 228 
 
 Masterton v. Mayor of Brooklyn, 7 Hill, 62 191 
 
 Mathews v. Durgee, 17 Abb. Pr. 256 263 
 
 Matson v. Abbey, 141 N. Y. 179 118 
 
 Matter of the Empire Bank, 18 N. Y. 199 2?0 
 
 Matter of Forman, 54 Barb. 274 131 
 
 Matter of Klmberly, 150 N. Y. 90 31 
 
 Matter of Long Island R. R. Co., 19 Wend. 37, 32 Am. Dec. 
 
 429 244 
 
 Matter of Swezy, 62 How. 215 94, 95 
 
 Matterson v. Holt, 45 Vt. 336 271 
 
 Matthews V. Albert, 24 Md. 527 248 
 
 Matthews v. Dare, 20 Md. 248 181 
 
 Matthews V. Skates, 1 Fish. 602 TO 
 
 Matthewson v. Stockdale, 12 Ves. 270 83 
 
 Maxwell v. Brown, 39 Me. 98 145 
 
 Maxwellv.Lee 27 N. W. Rep. 196 171 
 
 Maxwell V. Magee, 12 Cush. 137 258 
 
 Mayv.Estin, 2 Port. 414, 422 275 
 
 Mayv.Parker, 12 Pick. 34 32 
 
 Mayv.Ward, 134 Mass. 127 141,151 
 
 Mayfleld t. Wadsley, 3 B. & C. 357. 143 
 
 Mayor of Berwick v. Oswald, 1 El. & B. 295 267 
 
 Mayor of N. Y. v. Colgate, 2 Duer. 1, 12 N. Y. 140 204 
 
 Mayo V. Fletcher, 14 Pick. 525 15 
 
 Mayraunt v. Davis, 1 Desaus, 202 227 
 
 McAvoy V. Medina, 11 Allen, 548 55 
 
 McCaffrey v. Woodin, 65 N. Y. 459 138 
 
 McCall v. Lenox, 9 Serg. & R. 302 14,15 
 
 McCalla v. Bullock, 2 Bibb. 208 277 
 
 McCartee v. Orph. Asy. Soc, 9 Cow. 437 41 
 
 McCarty v. Blevins, 5 Yerg. 195 138 
 
 McChing v. Kelley, 21 Iowa, 508 171 
 
 McClintock v. Graham, 3 McCord ( S. C.) . 553 9 
 
 McClintock's Appeal, 71 Pa. St. 365 143 
 
TABLE OF CASES. Ixvii 
 
 [References are to pages.] 
 
 McCombs T. McKennan, 2 Watts & S. 219 1«8 
 
 McComi V. The N. Y. C. & H. R. R. Co., 50 N. Y. 176 103 
 
 McConnell v. People, 84 111. 583 284 
 
 McCord V. Ohio & Miss. R. R. Co., 13 Ind. 220 241 
 
 McCormick V. Seymour, 16 How. 480, 2 Blatchf. 240, 19 
 
 How. 96 71 
 
 McCormick v. Talcott, 20 How. 409 72 
 
 McCuUoch v. Maryland, 4 Wheat. 316, 424 39 
 
 McCurdy v. Myers, 44 Pa. St. 535 253 
 
 McCurtie v. Stevens, 13 Wend. 527 270 
 
 McDonald v. Brown, 10 Am. B. R. 58 268 
 
 McEllery v. Flanagan, 1 Har. & G. 308 302 
 
 McElroy v. Buck, 35 Mich. 434 151 
 
 McElroy v. Leery, 61 Md. 397 151 
 
 McElroy v. Seerey, 61 Md. 389, 48 Am. Rep. 110 178 
 
 McEwen v. Morey, 60 111. 32 138 
 
 McFarland v. Newman, 9 Watts, 55 169 
 
 McGuire v. Benoit, 27 Cal. 258 279 
 
 Melntyre v. Kennedy, 29 Pa. St. 448 182 
 
 Mclntyre v. Preston, 5 Gilm. (111.) , 48 224 
 
 Mclver v. Estabrook, 134 Mass. 550 11 
 
 McKenney t. Haines, 63 Me. 74 190 
 
 McKenzie v. Kittridge, 24 U. C. C. P. 1 248 
 
 McKeon v. Whitney, 3 Denio, 452 298 
 
 McKinley t. Miller, 19 Mich. 142, 151 270 
 
 McKinnon v. Thompson, 3 Johns. Ch. 307 232 
 
 McKinstry v. Conly. 12 Ala. 678 276 
 
 McKnight v. Gordon, 13 Rich. Eq. 221 275 
 
 Mcleod V. Bemhold, 32 Ark. 671 279 
 
 McMichael v. Carlyle, 53 Wis. 504 200 
 
 McMuUen v. Riley, 6 Gray. 506 144 
 
 McPherson v. Watt, L. R. 3 App. Cas. 254 161 
 
 McRea v. Central Nat. Bank of Troy, 66 N. Y. 489 9 
 
 McVaughters v. Elder, 2 Brev. ( S. C.) , 307 107 
 
 Mean's Appeal, 85 Pa. St. 75 246 
 
 Mechanics, etc. Bank v. Farmers, etc. Bank, 60 N. Y. 40. . 56 
 
 Medina v. Stoughton, 1 Ld. Raym. 593 170 
 
 Meeker v. Wright, 76 N. Y. 262 33 
 
Ixviii TABLE OP CASES. 
 
 [References are to pages.] 
 
 Mehlbery v. Fisher, 24 Wis. 607 182 
 
 Meigs' Appeal, 62 Pa. St. 28 11 
 
 Melncke v. Folk, 55 "Wis. 427 141 
 
 Merchant v. Merchant, 2 Bradf. Surr Rep. (N. Y.) 
 
 432 121, 124, 125 
 
 Merhcants' Bank v. Bank of Columbia, 5 Wheat 326 40 
 
 Merchants' Savings, etc. Co. v. Goodrich, 75 III. 554 211 
 
 Merrimac Mining Co. v. Bagley, 14 Mich. 501 248 
 
 Merrimac Mining Co. v. Levy, 54 Pa. St. 227 240, 248 
 
 Merrlam v. Field, 24 Wis. 640 171 
 
 Merrick v. Germania Fire Ins. Co., 54 Pa. St 277 209 
 
 Merrill V. Bartlett 6 Pick. 46 35 
 
 Merrill v. Hunnewell, 13 Pick. 213 156 
 
 Merriman v. Chapman, 32 Conn. 146 171 
 
 Merrit v. Johnson, 7 Johns. 473 64 
 
 Mesner v. Granger, 4 Gilm. 69 171 
 
 Messer v. Woodman, 23 N. H. 181, 182 146,147 
 
 Methudy v. Ross, 10 Mo. App. 101, 106 212 
 
 Metropolitan Bank v. Van Dyck, 27 N. Y. 400 256 
 
 Meyer v. Wheeler, 65 Iowa, 390 191 
 
 Michener v. Dale, 23 Penn. St. 59 121 
 
 Mich. Cent. R. R. Co. v. Phillips, 60 111. 190 155 
 
 Middlebrook v. Convin, 15 Wend. 169 18 
 
 Middlesex R. R. Co. v. Boston, etc. R. R. Co., 115 Mass. 
 
 347 253 
 
 Middlesex Co. v. Osgood, 4 Gray, 429 173 
 
 Mildham Foundry v. Hovey, 21 Pick. 417 259 
 
 Miles V. Bough, 3 O. B. 845 243 
 
 Miles.v. Conn. Mut Life Ins. Co., 3 Gray, 580 219 
 
 Miles V. Miller, 12 Bush. 134 190 
 
 Miles V. Roberts, 34 N. H. 253 173 
 
 Millar v. Taylor, 4 Burr. 2303 77 
 
 Millens v. Smith, 1 Drew & S. ( Ireland, Ch. ) , 204 226 
 
 Miller v. Barkeloo, 8 Ark. 318 260 
 
 Miller V. Fitzgibbons, 9 Daly, 505 141 
 
 Miller V. Lumsden, 16 111. 161 181 
 
 Miller V. Reigne, 2 Hill (S. C), 592 107 
 
 Miller v. The Rebecca, Bee Adm. 151 287 
 
 MUler V. Young, 33 111. 354 170 
 
TABLE OF CASES. Ixix 
 
 [References are to pages.] 
 
 MlUington v. Fox, 3 Mylne & C. 338 97 
 
 Mills v. Husson, 140 N. T. 99 31 
 
 Mills V. Stewart, 41 N. Y. 384 244 
 
 Miner T. Bradley, 22 Pick. 457 271 
 
 Miner v. Judson, 2 Hun, 441 274 
 
 Minter v. Wells, Webs. Pat. Cas. 129 73 
 
 Mires v. Solesby, 2 Mod. 243 153 
 
 Mitchell V. Beckman, 64 Cal. 117: 240,241 
 
 Mitchell v. Gile. 12 N. H. 390 132 
 
 Mitchell v. Lycoming Ins. Co., 51 Pa. St. 402 222 
 
 Mitchell T. Selman, 5 Md. 276 203 
 
 Mitchell V. Winslow, 2 Story, 630 138 
 
 Mitchell v. Zimmerman, 4 Tex. 75 1G2 
 
 Mixer v. Howarth, 21 Pick. 205 141 
 
 Mixey v. Cook, 31 Me. 340 154 
 
 Moale v. Buchanan, 11 Gill & J. 322 150 
 
 Mobile Mut. Ins. Co. v. CuUum, 49 Ala. 558 241 
 
 Moline Wagon Co. v. Rummell, 2 McCrary, 301 277 
 
 Mondell v. Steele, 8 M. & W. 858 169 
 
 Monroe v. Hamilton, 6 Ala. 226 277 
 
 Montague v. Montague, 15 Beav. 565 233 
 
 Montefiori v. Montefiori, Wm. Bl. 363 167 
 
 Montgomery v. Lampton, 9 Met. Ky. 519 205 
 
 Moody V. Blake, 117 Mass. 23, 26 55 
 
 Moody V. Browe, 34 Me. 107 189 
 
 Moody V. Brown, 34 Me. 107 157 
 
 Moore v. Bank of Columbia, 6 Pet. 86 202 
 
 Moore v. Bank of Commerce, 52 Mo. 377 42 
 
 Moore v. Barton, 4 De G. & Sur. 517 124 
 
 Moorev.Hyman, 13 Ired. 272.. 203 
 
 Moore v. Murdock, 26 Cal. 514 167, 275 
 
 Morehouse v. Comstock, 42 Wis. 024, 626 169,172 
 
 Moreland v. Myall. 14 Bush, 470 143 
 
 Morgan v. Morgan, 65 Ga. 495 13 
 
 Morgan v. Richardson, 13 Allen, 410 183 
 
 Morgan v. Rogers, 19 Fed. Rep. 596 94 
 
 Morrell v. Frith, 3 M. & W. 405 202 
 
 Morris v. French, 106 Mass. 326 143 
 
 Morris v. Thomson, McCart. (N. J.) , Ch. 493 226 
 
IXX TABLE OF CASES. 
 
 [References are to pages.] 
 
 Morris v. TUlson, 81 111. 607 284 
 
 Morrison v. Lods, 39 Cal. 385 163 
 
 Morrison v. Lovejoy, 6 Minn. 224 191 
 
 Morrison v. Semple, 6 Binn. Pa. 93 1 
 
 Morrow v. Turney, 35 Ala. 131; 275, 281 
 
 Morse V. Bellows, 7 N. H. 549 270 
 
 Morse V. Sherman, 106 Mass. 430, 432 173 
 
 Morse V. Tappan, 3 Gray, 411 102 
 
 Morton v. Dean, 13 Met. 388 150 
 
 Morton V. Onion, 45 Vt. 145 131 
 
 Morton v. Tibbetts, 15 Q. B. 428, 19 L. J. Q. B. 382 146 
 
 Moses V. Meed, 5 Denio, 617, 1 Denio, 378 172 
 
 Mosley v. Crockett, 9 Rich. (S. C.) Eq. 339 274 
 
 Moss v. Sweet, 16 Q. B. 493 135 
 
 Mossman v. Forrest, 27 Ind. 233 284 
 
 Moulton V. Norton, 5 Barb. 286 293 
 
 Moultrie v. Jennings, 2 McMull. ( S. C.) 508 118 
 
 Mowry v. Wood, 12 Wis. 413 274, 251 
 
 MuUaly v. People, 86 N. Y. 365 60 
 
 Muller V. Eno, 14 N. Y. 597 192 
 
 Muller v. Poudir, 55 N. Y. 325, 337 179 
 
 Mullett V. Bradley, 24 Misc. (N. Y.) . 695 60 
 
 Mulllken v. Millar, 12 R. I. 296 165 
 
 Mumford v. Nicoll, 20 Johns. 611 35 
 
 Munro v. Tousey, 129 N. Y. 38 90 
 
 Murray v. Bogart, 14 Johns. 318 44 
 
 Murray v. Lardner, 2 Wall. 710 56 
 
 Mut. Ins. Co. T. Dale, 18 Md. 26 218 
 
 Myers v. Kaufman, 37 Ga. 600 257 
 
 Mygatt V. N. Y. Prot. Ins. Co., 21 N. Y. 52 222 
 
 Myrick v. Dame, 9 Cush. 248 270 
 
 N. 
 
 Nassoiy v. Tomllnson, 148 N. Y. 326 267 
 
 Nathan v. Whitlock, 9 Paige, 152 246 
 
 National Bank v. Landon, 45 N. Y. 410 45 
 
 National Bank, etc. v. Landon, 45 N. Y. 410, 414 247 
 
TABLE OF CASES. Ixxi 
 
 [References are to pages.] 
 
 National Filtering Oil Co. v. Citizens Ins. Co., 106 N. T. 
 
 535 191 
 
 National Citizens' Bank v. Howard, 3 How. Pr. Rep. (N. 
 
 S.), 512 258 
 
 Naugatuck Cutlery Co. v. Babcock, 22 Hun, 481 165 
 
 Needham v. Hill, 127 Mass. 131 33 
 
 Needham's Case, 8 Co. 135a 235 
 
 Neidefer v. Chastain, 71 Ind. 362 16a 
 
 Neiler v. Kelley, 69 Pa. St 403, 407 238 
 
 Nelson v. McGiffert, 3 Barb. Ch. 158 130' 
 
 Nelson v. Pub. Adm'r, 2 Bradf . Surr. 210 130 
 
 Nellis V. Lothrop, 22 Wend. 121 303 
 
 Nepton V. Leaton, 71 Mo. 358 262 
 
 Nettleton v. Sikes, 8 Met. 34 14a 
 
 Neufville v. Thomson, 2 Edw. Ch. 92 KO 
 
 New Castle Fire Ins. Co. v. McMorran, 3 Dow. P. C. 255. . 217 
 
 Newcomb t. Peck, 17 Vt. 302 , 262 
 
 New England Mut. Fire Ins. Co. v. Belknap, 9 Cush. 140. . 223 
 
 New England Mut. Fire Ins. Co. v. Butler, 34 Me. 351... 223 
 
 New England, etc. Ins. Co. v. Robinson, 25 Ind. 536 213 
 
 New Haven Pat. Rolling Spring Co. v. Farren, 51 Conn. 
 
 324 96 
 
 Newhall V. Vargas, 13 Me. 93, 193 177, 17» 
 
 Newman v. Alvord, 51 N. Y. 189, 49 Barb. 588 90, 95 
 
 Newman v. Morris, 4 Har. & McH. 221 140 
 
 Newport v. Cook, 2 Bradf. Surr. 332 229 
 
 New York Mar. Ins. Co. v. Prot. Ins. Co., 1 Story (C. C. 
 
 Rep.), 458 208 
 
 New York & H. R. Co. v. Hawes, 56 N. Y. 175 54 
 
 Newry, etc. R'y Co. v. Moss, 14 Beav. 64 250- 
 
 Newton v. Potter, 69 N. Y. 137 66 
 
 N. H. Sav. Bank v. Downing, 6. N. H. 187 40' 
 
 Niblo V. North Am. Ins. Co., 1 Sandf. 551 215 
 
 Nicol V. Am. Ins. Co., 3 Wood & M. (U. S. 0.) 589 21* 
 
 Nichol V. Stewart, 36 Ark. 612 277" 
 
 Nicholas v. Adams, 2 Whart. 22 121, 122, 125- 
 
 Nichols v. Moore, 100 Mass. 277 189' 
 
 Nicholson T. Chapman, 2 H. Bl. 254 66 
 
 f 
 
Lxxii TABLE OP CASES. 
 
 [References are to pages.] 
 
 Nixon V. Brown, 57 N. H..34 55 
 
 Nixon V. Nixon, 21 OMo St. 114 189 
 
 N. & N. W. R. R. Co. V. Jones, 2 Cold. 584 169 
 
 Noakes v. Morey, 30 Ind. 103 148 
 
 Norrls V. Blair, 39 Ind. 90 152 
 
 Norris t. Harrison, 2 Mad. Ch. R. 268 303 
 
 North V. Forrest, 15 Conn. 400 141 
 
 Northwestern Ins. Co. v. Atkins, 3 Bush. (Ky.) 328 220 
 
 North Western Ins. Co. v. Phoenix Oil & Candle Co., 1 Pa. 
 
 St. 449 220 
 
 Northwestern Ins. Co. v. Reward, 36 N. Y. 139 286 
 
 Northwood v. Rennic, 3 Ont. Ap. 37 (1878) 192 
 
 Norwood V. Cobb, 24 Tex. 551 262 
 
 N. Y. Cab Co. T. Mooney, 15 Abb. N. C. 152 95 
 
 N. Y. etc. R. R. Co. V. Haws, 56 N. Y. 175 54 
 
 o. 
 
 Oakman v. Rogers, 120 Mass. 214 152 
 
 Oakes V. Turquand, L. R. 2, H. L. 325 ' 165 
 
 Chert V. Hammel, 3 Harr. 73 270 
 
 O'Brien v. Young, 95 N. Y. 428 103 
 
 O'Donnel v. Seybert, 13 Serg. & R. 57 296 
 
 O'Donnell v. Sweeney, 5 Ala. 467 167 
 
 Ogden V. Saunders, 12 Wheat. 213 110, 112 
 
 Ogilvie T. Hull, 5 Hill, 52. 301 
 
 O'Hear v. Goesbriand, 33 Vt. 593 19 
 
 Ohio Mut. Ins. Co. v. Marietta Woolen Factory, 3 Ohio St. 
 
 N. S. 348 222 
 
 Old Colony R. R. Co. v. Sears, 6 Gray, 25 152 
 
 Oliphant v. Baker, 5 Denio, 379 153 
 
 Oliver V. Oliver, 11 C. B. N. S. 139 87 
 
 Olmstead v. Niles, 7 N. H. 522 142 
 
 Ombony v. Jones, 19 N. Y. 234 . ; 10 
 
 O'Neil v. Crane, 67 Mo. 250 151 
 
 O'Neill V. N. Y. etc. Co., 3 Nev. 141 141 
 
 O'Reilly v. Bard, 105 Pa. St. 569 245 
 
 O'Reilly v. Morse, 15 How. 62 71 
 
TABLE OF CASES. Ixxiii 
 
 [References are to pages.] 
 
 Orr V. Kalnes, 2 Ves. Sen. 193 234 
 
 Osborne v. Bank of U. S., 9 Wheat. 738 39 
 
 Osborne v. Barge, 35 Fed. Rep. 92 37 
 
 Osterhout v. Roberts, 8 Cow. 43 104 
 
 Ottoman Woolen Mills Co. v. Hawley, 44 Iowa, 57 9 
 
 Cutwater v. Dodge, 6 Wend, 397 146 
 
 Owenson v. Morse, 7 T. & R. 50 181 
 
 P. 
 
 Packard V. Louisa, 2 Woodb. & M. 49 289 
 
 Packard V. Kingman, 11 Iowa, 219 284 
 
 Pacific R. R. Co. v. Lincoln Co., 1 Dill. C. C. R. 314 39 
 
 Paddon v. Taylor, 44 N. Y. 371 165 
 
 Page V. Esty, 54 Me. 319 263 
 
 Page V. Ferry, 1 Fish. 298 70 
 
 Page V. Foster, 7 N. H. 392 283 
 
 Page v. Symunds, 63 N. H. 17 20 
 
 Page V. Trufant, 2 Mass. 159, 162 267 
 
 Paige V. FuUerton Woolen Co., 27 Vt. 485 212 
 
 Paine v. Parsons, 14 Pick. 318 233 
 
 Palmer v. DeWitt, 47 N. Y. 532, 47 N. Y. 538 78, 80, 85, 89 
 
 Palmer v. Medina Ins. Co., 20 Ohio, 537 41 
 
 Palmer v. Palmer, 55 Mich. 293 105 
 
 Palmer v. Phoenix Mut. Ins. Co., 84 N. Y. 63 183 
 
 Palmer v. Shirley, 16 Ind. 380 274 
 
 Parham v. Thompson, 2 J. J. Marsh. (Ky.) 206 15 
 
 Parker V. Fergus, 43 111. 437 36 
 
 Parker v. Ferguson, 1 Blatchf. 407 69 
 
 Parker V. Marston, 27 Me. 196 124 
 
 Parker v. Merchant, 1 Phil. (N. C.) 355 254 
 
 Parker v. Staniland, 11 East, 362, 365 142, 143 
 
 Parker V. Stiles, 15 How. 44 71 
 
 Parker v. Wallis, 5 E. & B. 21 146 
 
 Parkhurst v. Kinsman, 1 Blatchf. 488 69, 70 
 
 Parmlee v. Adolph, 28 Ohio St. 10 162 
 
 Parshall v. Eggart, 52 Barb. 367 274, 281 
 
 Parsons v. Camp, 11 Conn. 525 18 
 
Ixxiy TABLE OF CASES. 
 
 tHeferences are to pages.] 
 
 Parsons v. Suttoa, 66. N. T. 92 .'.... 190 
 
 Parton V. Prang, 3 Cllfl. 537, 556 80 
 
 Partridge V. Badger, 25 Barb. 146 40 
 
 Partridge v. First, etc. Ch., 39 Md. 631 20 
 
 Partridge V. Menck, 1 How App. Cas. 547 94,96 
 
 Partridge v. Partridge, Cas. 1 Talb. 226 232 
 
 Pasley v. Freeman, 3 T. R. 51 170 
 
 Passaic Mfg. Co. v. Hoffman, 3 Daly, 495 140 
 
 Passenger y. Thorbum, 34 N. Y. 634 191 
 
 Patcline v. Pierce, 12 Wend. 61, 63 280 
 
 Patten's Appeal, 45 Pa. St. 151 178 
 
 Pattison's Appeal, 61 Pa. St 29, 294 14,142 
 
 Pattison y. Wilbur, 10 K. I. 448 268 
 
 Patton V. The Randolpli, Gilp. 457 287 
 
 Pawson V. Watson, Cowp. 785 217 
 
 Payey. Paye, 2 P. Wms. 489 230 
 
 Payne y. Caye, 3 T. R. 148 135 
 
 Payson y. Stoeyer, 2 Dill. 427 246 
 
 Peabody y. Speyers, 56 N. Y. 230 141 
 
 Pearson y. Seay, 35 Ala. 612 283 
 
 Pease y. Gloahec, L. R. 1 P. C. 220 165 
 
 Pease y. Smith, 61 N. Y. 477 56 
 
 Peay y. Barber, 1 Hill Ch. (S. C.) 95 228 
 
 Peck y. Burr, 10 N. Y. 294 167 
 
 Peck y. Vandemark, 99 N. Y. 29 150 
 
 Peek y. North Staffordshire R. R. Co., H. L. C. 472-5699. . 150 
 
 Peltier y. Collins, 3 Wend. 459 152 
 
 Pence y. Langdon, 99 U. S. 578 272 
 
 Pendergast y. Turton, 1 Young & Coll. (N. R.) 98 99 
 
 Pendergast y. Turton, 1 Young &. C. Ch. 87 240 
 
 Pendleton y. Dyett, 4 Cow. 58, 581, 8 Cow. 727 301. 302 
 
 Penfield v, Thayer, 2E. D. Smith, 305.... 116 
 
 Penhallow y. Dwight, 7 Mass. 34 14, 15 
 
 Penn. Ins. Co. y. Murphy, 5 Minn. 36 44 
 
 Penniman y. Hartshorn, 13 Mass. 87 151 
 
 Pennock y. Coe, 23 How. 117 138 
 
 Pennywit y. Foote, 27 Ohio St. 600 262 
 
 Penroyer y. Sheldon, 4 Blatchf . 316 126 
 
TABLE OF CASES. IxXV 
 
 tReferences are to pages.] 
 
 People V. Anderson, 14 Johns. 294 55 
 
 People V. Assessors, etc., 1 Hill, 616, 620 38, 39 
 
 People V. Cogdell, 1 Hill, 84 55 
 
 People V. Gordon, 82 111. 435 200 
 
 People V. Johnson, 14 111. 342 117 
 
 People V. McGarren, 17 Wend. 460 55 
 
 People V. O'Brien, 111 N. T. 1 252 
 
 People T. Peacock, 98 111. 172 245 
 
 People V. Phoenix Bank, 7 Bosw. 20 263 
 
 People V. Rnggles, 3 Johns. 290 84 
 
 People V. Smith, 61 Barb. 360 263 
 
 Peoria Marine & Fire Ins. Co. v. Lewis, 18 111. 553 209 
 
 Peoria Ins. Co. v. Whitehill, 25 111. 466 220 
 
 Perceval v. Phipps, 2 Ves. & B. 19, 24 85, 86, 87 
 
 Perkins v. Eckert, 55 Cal. 400 174 
 
 Perrin v. Granger, 30 Vt. 595 244 
 
 Perrin V. Terrell, 30 N. J. L. 454 192 
 
 Perrins v. Little, 1 Green, 248 195 
 
 Perryv.Carr, 44 N. H. 122 18 
 
 Perryv.Mt. Hope Iron Co., 15 R. I. 66 .• 136 
 
 Perry V. Smith, 22 Vt. 301 183 
 
 Perry v. Truefitt, 6 Beav. 66 94 
 
 Pettee v. Orser, 18 How. Pr. R. 442 37 
 
 Peters V. Newkirk, 6 Cow. 103 293,294 
 
 Peters T. Peters, 43 N. J. Bq. 140 21 
 
 Pettis T. Ray, 12 R. I. 344 266 
 
 Peytoe's Case, 9 Rep. 79b 266 
 
 Peyton v. Smith, Dev. & B. (N. C.) L. 325 33 
 
 Pflstner v. Bird, 43 Mich. 14 153 
 
 Phelps V. StlUings, 6 N. H. 505 151 
 
 Phila. & Trenton R. Co. v. Stimpson, 14 Pet. 458 43, 73 
 
 Philadelphia Ins. Co. v. Washington Ins. Co., 23 Pa. St 
 
 250 208 
 
 Philips V. Ocumulgee Mills, 55 Ga. 634 156 
 
 Philips V. Stevens, 16 Mass. 240 301 
 
 Phillips v. Bistolli, 2 B. & C. 511 145 
 
 Phillips T. BuUard, 58 Ga. 256 182 
 
 Phillips V. Winslow, 18 B. Mon. 431 138 
 
Ixxvi TABLE OP CASES. 
 
 [References are to pages.] 
 
 Phipps V. Buckman, 30 Pa. St. 402 163 
 
 Phipps V. McFarlane, 3 Minn. 109 141 
 
 Phoenix Ins. Co. v. Allen, 11 Mich. 501 181 
 
 Phoenix, etc. Co. v. Badger, 67 N. Y. 294 246 
 
 Plcard v. McCormick, 1 Mich. 68 ' 133 
 
 Pickering v.Bardwell, 21 Wis. 562 188 
 
 Pickering V. Langdon, 22 Me. 413 126 
 
 Pickett V. King, 34 Barb. 192 204 
 
 Pierce v. Corf. L. R. 9 Q. B. 210 150 
 
 Pierce V. George, 108 Mass. 78 278 
 
 Pierce v. Hasbrouck, 49 111. 23 279 
 
 Pierce v. Swan Pt. Cemetery, 10 R. I. 227 21 
 
 Pierce V. "Wright, 33 Tex. 631 270 
 
 Pierson v. Catlin, 18 Vt. 77 273 
 
 Pierson v. Crooks, 115 N. Y. 539 176 
 
 Pierson v. Post, 3 Cai. Cas. 175 60 
 
 Pike v. Nicholas, 20 L. T. N. S. 906 83 
 
 Plnkham v. Mattox, 53 N. H. 66 146 
 
 Pinnel's Case, 5 Rep. 117 267 
 
 Pitts V. Beckett, 13 M. & "W. 743 151 
 
 Pitts V. Mangum, 2 Bailey, 588 IIS 
 
 Pitts V. Wemple, 6 McLean, 558 75 
 
 Pitts v. Whitman, 2 Story, 609 75 
 
 Pittsburg & Cornellsville R. R. Co. v. Clark, 29 Pa. St. 146 242' 
 Pittsburgh, etc. R. R.- Co. v. County of Allegheny, 63 Pa. 
 
 St. 126 238 
 
 Pittsburg, etc. R. R. Co. v. Heck, 50 Ind. 303 169 
 
 Planters' Bank v. Andrews, 8 Port. 404 40 
 
 Pleasants v. Pendleton, 6 Rand. 473 153 
 
 Plimpton V. Blgelow, 93 N. Y. 592, 599 238 
 
 Plumer v. Plumer, 30 N. H. 558 18 
 
 Poole V. Middleton, 29 Beav. 646 241 
 
 Pope V. Cole, 55 N. Y. 124 36 
 
 Pope V. Curl, 2 Atk. 342 85, 87 
 
 Popham V. Cole, 66 N. Y. 69 93, 96 
 
 Port Carbon Iron Co. v. Groves, 68 Pa. St. 149 , 171 
 
 Portage County Mut. Ins. Co. v. West, 6 Ohio, 599 220 
 
 Porter v. Barrow, 3 La. An. 140 189 
 
TABLE OF CASES. Ixxvii 
 
 [References are to pages.] 
 
 Porter v. Nelson, 4 N. H. 130 276 
 
 Porter v. Parmly, 42 How. Pr. 445 274 
 
 Post V. Hampshire Mut. Ins. Co., 12 Mass. 555 210 
 
 Postell V. Skirling, Desaus. (S. C.) Eq. 158 31 
 
 Potter V. Cromwell, 40 N. Y. 287 9 
 
 Pott,er V. Holland, 4 Blatchf. 210 195 
 
 Potter V. Neal, 62 How.Pr. R. 158 33 
 
 Potts T. New Jersey Arms, etc., Co., 17 N. J. Bq. 395 9 
 
 Powder v. Rhea, 32 Ark. 435 277 
 
 Powder Co. v. Burkhart, 97 IT. S. 110 133 
 
 Powell T. Barham, 4 A. & E. 473 170 
 
 Powell v. McAshan, 28 Mo. 70 143 
 
 Powell V. North Mo. R. R. Co., 42 Mo. 63 252 
 
 Powell V. Waters, 8 Cow. 669 195 
 
 Pratt V. Huggins, 29 Barb. 277 204 
 
 Pratt V. Railroad Co., 21 N. Y. 305 212 
 
 Pray v. Mitchell, 69 Me. 430 141 
 
 Prentiss v. Russ, 16 Me. 30 271 
 
 Presb. Ch. v. Andrus, 1 Zabr. 325 19 
 
 Prescott V. Locke, 51 N. H. 94 140 
 
 Prescott V. Wells, 3 Nev. 82 8 
 
 Price V. Pickett, 21 Ala. 741 13 
 
 Price V. Price, 16 M. & W. 231 181 
 
 Price & Brown's Case, 3 De Gex & Sm. 146 250 
 
 Prime v. Cobb, 63 Me. 200 '. 55 
 
 Prince v. Hazleton, 20 Johns. 502 130 
 
 Prince Albert v. Strange, 2 De G. & Sm. 652 78 
 
 Prince Man'f g Co. v. Prince Metallic Paint Co., 20 N. T. 
 
 Supp. 462 94 
 
 Prindell v. Grooms, 18 B. Mon. 501 277 
 
 Pringle v. Phillips, 5 Sandf . 157 165 
 
 Pritchard v. Howell, 1 Wis. 131 202 
 
 Protection Ins. Co. v. Harmer, 2 Ohio St. 452 218 
 
 Providence Bank v. Billings, 4 Pet. 562 38 
 
 Provincial Ins. Co. v. Shaw, U. C. D. B. 533 248 
 
 Public Administrator v. Hughes, 1 Bradf. Surr. Rep, 125, 
 
 128, 129 107 
 
 Pulciver v. Page, 32 Me. 404 64 
 
Ixxviii TABLE OF CASES. 
 
 [References are to pages.] 
 
 Pullen V. Palmer, 3 Salk. 207 294 
 
 Pullman V. Upton, 96 U. S. 328 250 
 
 Pvtlte V. Derby, 5 McLean, 328 78 
 
 Purdy V. Austin, 3 Wend. 187 262 
 
 Purney v. Piercy, 40 Md. 212 143 
 
 Purse V. Snaplln, 1 Atk. 414 226 
 
 Putnam v. Lewis, 8 Johns. 389 181 
 
 Putnam v. The Polly, Bee Adm. 157 287 
 
 Putnam v. Wiley, 8 Johns. 432 62 
 
 Putnam V. Wise, 1 Hill, 234 44 
 
 Q. 
 
 Quincy T. Tilton, 5 Me. 277 271 
 
 Qulner T. Marhlehead Ins. Co., 10 Mass. 476 42 
 
 R 
 
 Race ▼. Mississippi, 25 Miss. 54 264 
 
 Raddin T. Arnold, 116 Mass. 270 11 
 
 Rae V. Hulburt, 17 111. 572, 580 103 
 
 Ragland y. Justices, 10 Ga. 65 282 
 
 Railroad Company v. Howard, 7 Wall. 392 238 
 
 Ramsell v. Tewksbury, 73 Me. 197 279 
 
 Randv. Hubbell, 115 Mass. 461, 474 239 
 
 Rand v. White Mountains R. R. Co., 40 N. H. 79 189, 243 
 
 Randall v. Johnson, 13 R. I. 338 38 
 
 Randon v. Barton, 4 Tex. 289 191 
 
 Rankin v. Barnes, 5 Bush. (Ky.) 20 262 
 
 Raphael v. The Bank of England, 17 C. B. 161 56 
 
 Rasor V. Quails, 4 Blackf . 286 15 
 
 Rawlings v. Hunt, 90 N. C. 270 138 
 
 Raymond v. Commissioners, etc., 5 Ohio, 205 41 
 
 Raymond'T. Merchant, 3 Cow. 147, 150 181 
 
 Read v. Lanahan, 47 N. Y. Super. Ct Rep. 275 38 
 
 Redfield v. Tegg, 38 N. Y. 212 133 
 
 Reed v. Cutter, 1 Story, 590 69, 70 
 
TABLE OF CASES. Lxxix 
 
 [References are to pages.] 
 
 Re Flanders, 10 Am. B. B. 379 268 
 
 Reeder v. Sager, 70 Ind. 180 14 
 
 Reed .v Shaw, 1 Blackf . 245 270 
 
 Reed v. Spaulding, 42 N. H. 114 117 
 
 Reed v. Upton, 10 Pick. 522 154, 155 
 
 Redgrave v. Hurd, 20 Ch. D. 1, 13 161 
 
 Redman v. wSltna Ins. Co., 49 Wis. 438 169 
 
 Rees V. Peltzer, 75 111. 475 78 
 
 Reeve v. Whitmore, 4 DeG. J. & S. 1 138 
 
 Reeves v. McKenzie, 1 Bailey, 497, 500 293, 296 
 
 Remick v. Sandford, 120 Mass. 309 145 
 
 Rensselaer, etc., R. R. Co. v. Wetsel, 21 Barb. 56 244 
 
 Rentch v. Long, 27 Md. 188 141 
 
 Re Lorillard, 5 Am. B. R. 602 269 
 
 Re Pontius,, 26 Hun, 232 252 
 
 Rex V. Arkwright, Webs. Pat. Cas. 71-73 75 
 
 Rex V. Bayley, 1 Car. & P. 435 270 
 
 Rex V. Collector, 2 M. & S. 236 35 
 
 Rex V. Mucklow, 1 Ryan & M. 160 55 
 
 Reynolds v. Kortright, Beav. 417, 427 228 
 
 Rhoads v. Jones, 92 Ind. 328 265 
 
 Rice V. Barnard, 29 Vt. 479 37 
 
 Rice v. Churchill, 2 Den. 145 173 
 
 Ricev.Rice, 4 Pick. 349 283 
 
 Rice, Robertson v. Montgomery, Rice, 87 273 
 
 Rich V. Lippincott, 2 Fish. 1 70 
 
 Richy.Milk, 20 Barb. 616 285 
 
 Richard v. Bankes, 13 East, 20 254 
 
 Richard v. Borden, 42 Miss. 71 11 
 
 Richards V. Humphreys, 15 Pick. 133, 135 232 
 
 Richards V. Killam, 10 Mass. 243, 247 29S 
 
 Richards v. Richards, 2 Barn. & Adol. 447 114 
 
 Richardson v. Copeland, 6 Gray, 536 278 
 
 Richardson v. Dutch Ch., 32 Barb. 42 20 
 
 Richmond v. Dubuque, etc., R. R. Co., 40 Iowa, 264, 43 
 
 Iowa, 422 191 
 
 Ricketts v. Dorrell, 55 Ind. 470 61 
 
 Rickey v. Tenbroeck, 63 Mo. 587 188 
 
IXXX TABLE OP CASES. 
 
 [References are to pages.] 
 
 Ridden v, Tirall, 125 N. Y. 572 122 
 
 Riddle v. Driver, 12 Ala. 590 66 
 
 Riddleberger v. Hartford Ins. Co., 6 Wall. 386, 7 Wall. 386 221 
 
 Ridenour v. Mayo, 40 Ohio St. 9 247 
 
 Rider v. Wager, 2 P. Wms. 329, 330 232 
 
 Ridges V. Morrison, 1 Br. Cr. Cas. 389 228 
 
 Ridgway v. Ingraham, 50 Ind. 148 150 
 
 Ridgway v. Wharton, 6 H. L. C. 238, 264, 268 151,212 
 
 Riggs V. Magruder, 2 Cranch C. C. 143 141 
 
 Riley v. Farnsworth, 116 Mass. 223 152 
 
 Ring V. Kelley, 10 Mo. App. 411 270 
 
 Ripley t. ^tna Fire Ins. Co., 30 N. Y. 136 216 
 
 Ripley v. Waterworth, 7 Ves. 425 87 
 
 Rishton v. Whatmore, 8 Ch. D. 467 150 
 
 Robblns V. Ayers, 10 Mo. 538 265 
 
 Robbins V. Butler, 24 111. 387 43,44 
 
 Robbins V. Clay, 33 Me. 132 253 
 
 Robbins V. Farley, 2 Strobh. 348 203 
 
 Roberts v. Beatty, 2 Pen. & Watts, 63 183 
 
 Roberts V. Caldwell, 5 Dana, 512 262 
 
 Robertson V. Berry, 50 Md. 591 95 
 
 Robertson v. Bullions, 11 N. Y. 243 3& 
 
 Robertson v. Smith, 18 Johns. 459 35 
 
 Robie V. Sedgwick, 35 Barb. 319 41 
 
 Robinson v. Bliss, 12 Mass. 428 284 
 
 Robinson y. Campbell, 8 Mo. 365 279 
 
 Robinson v. Cropsey, 2 Bdw. Ch. 138 •• 283 
 
 Robinson v. Fitch, 26 Qhio St 659 280 
 
 Robinson v. Georges Ins. Co., 17 Me. 131 221 
 
 Robinson v. Hoffman, 4 Bing. 562 294 
 
 Robinson v. Lane, 19 Ga. 337 252 
 
 Robinson v. McDonnell, 6 M. & S. 228 13S 
 
 Rockville, etc.. Turnpike Co. v. Maxwell, 2 Cranch C. C. 
 
 451 244 
 
 Rodgers v. Jones, 129 Mass. 422 147 
 
 Rodman v. Thalheimer, 7 Pa. St. 232 160 
 
 Rodwell V. Phillips, 9 M. & W. 502 143 
 
 Rogers v. Cox, 96 Ind. 157 144 
 
TABLE OF CASES. ' Ixxxi 
 
 [References are to pages.] 
 
 Rogers V. Crow, 40 Miss. 91 20 
 
 Rogers v. Moore, 1 Rice, 60 . . , 103 
 
 Rogers v. Phillips, 40 N. Y. 519 145 
 
 Rogers v. Thomas, 20 Conn. 53 178 
 
 Rodgers v. Jones, 129 Mass. 422 147 
 
 Rogers v. Williams, 5 Mo. 335 15 
 
 RootT. Ball, 4 McLean, 177 71 
 
 Rose v. Bozeman, 41 Ala. 678 190 
 
 Rosenbaum v. "Weeden, 18 Gratt. 785 187 
 
 Rosevelt v. Brown, 11 N. Y. 148 250 
 
 Ross' Appeal, 9 Pa. St. 491 143 
 
 Ross V. Bank, etc., 19 Pao. Rep. 243 244 
 
 Rosseau v. City of Troy, 49 How. Pr. R. 492 21 
 
 Rosslter v. Miller, 46 L. J. Ch. 228, 5 Ch. D. 648, C. A.. . 151 
 
 Rowley V. Bigelow, 12 Pick. 312 178 
 
 Rowley v. Stoddard, 7 Johns. 207 270 
 
 Royal Baking Powder Co. v. Sherrell, 93 N. Y. 331 92 
 
 Royal Bank of India's Case, L. R. 7 Eq., 91 250 
 
 Royalton v. Royalton, etc., Co., 14 Vt. 311 191 
 
 Rucher v. Conyngham, 2 Pet. Adm., 295 286 
 
 Rucker v. Donovan, 13 Kan. 251 178 
 
 Rugg T. Minett, 11 East, 200 153 
 
 Runneford Chemical Works v. Muth, 35 Fed. Rep. 524... 92 
 
 Russell V. Carrington, 42 N. Y. 118, 1 Am. Rep. 498 154 
 
 Rutland & Burlingtpn R. R. Co. v. Thrall, 35 Vt. 536 243,244 
 
 Ryan T. Goodwin, 3 Sum. 514,518 69 
 
 Ryan v. Ward, 48 N. Y. 204 267 
 
 Ryder v. Neitge, 21 Minn. 70 172 
 
 Rynders v. Crane, 3 Daly, 339 120 
 
 Ryno V. Darby, 20 N. J. Bq. 231 167 
 
 S. 
 
 Sabine v. Bank of Woodstock, 21 Vt. 353 42 
 
 Sackett V. Andross, 5 Hill, 327 110 
 
 Saddler's Co. v. Babcock, 2 Atk. 554. 534 207, 216 
 
 SafEord v. McDonough, 120 Mass. 290 147 
 
 Sainsbury V. Matthews, 4 M. & W. 434 142 
 
IxXXii TABLE OF CASES. 
 
 [References are to pages.] 
 
 Saladln v. Mitchell, 45 III. 85 187 
 
 Sale V. Lambert, 18 Eq. Rep. 1 151 
 
 Salsbury v. Parsons, 43 Hun, 12 16 
 
 Salt Lake City Nat. Bank v. Hendrickson, 40 N. J. Law, 
 
 52 245 
 
 Samson v. Rose, 65 N. T. 411 , 66 
 
 Sampson v. Graham, 96 Pa. St. 405 8 
 
 Samuel v. Berger, 4 Abb. Pr. Rep. 88 93, 95 
 
 Sanborn V. Goodhue, 28 N. H. 48 120 
 
 Sanders v. Logan, 2 Fish. 167 71 
 
 Sanderson v. Caldwell, 2 Aiken, 195 104 
 
 Sands v. Hill, 42 Barb. 65 222 
 
 Sanger V.Upton, 91 U. S. 56 242 
 
 Sanger v. Waterbury, 116 N. Y. 371 156 
 
 Sargent v. Franklin Ins. Co., 8 Pick. 90 239 
 
 Sari V. Bourdillon, 1 C. B. (n. s.) 188, 26 L. J. C. P. 78.. 151 
 
 Saunders V. Frost, 5 Pick. 270 186 
 
 Saunders V. Topp, 4 Ex. 390 • 145 
 
 Sawyer V. Gerrish, 70 Me. 254 138 
 
 SawyerT. Hoag, 17 Wall. 610, 620 242,246 
 
 Sawyer v. Ware, 36 Ala. 675 141 
 
 Sayles v. North Western Ins. Co., 2 Curtis (U. S. 0. C.) 
 
 612 217 
 
 Scarlett v. Academy of Music, 43 Md. 203 243 
 
 Scheifele v. Schmitz, 42 N. J. Bq. 700 10 
 
 Schneider v. Norrls, 2 M. & T. 286 130 
 
 Schollenberger v. Brlnton, 52 Pa. St. 9, 100 256 
 
 Schroeder v. Insurance Co., 2 Phil. Pa. 286 221 
 
 SchuUer v. Laclede Bank, 120 U. S. 511 196 
 
 Schumaker v. Eby, 24 Pa. St. 521 155 
 
 Schuyler v. Leggett, 2 Cow. 660 293 
 
 Scoggin v. Slater, 22 Ala. 687 144 
 
 Scott V.Avery, 2 Eng. L. & Eq. 327, 5 H. L. C. 311 221 
 
 Scott V. Haddock, 11 Ga. 258 201 
 
 Scott V. Henry, 13 Ark. 112 274,276 
 
 Scott v.Simea, 10 Bosw. 314 120 
 
 Scott V. Stanford, Law Rep. 3 Eq. 718 83 
 
TABLE OP CASES. Ixxxiii 
 
 [References are to pases.] 
 
 Scott V. The Phoenix Ass. Co., 1 Stewart (Lower Canada) 
 
 152 221 
 
 Scotton V. Scotton, 1 Stir. 235 233 
 
 Scoville V. Thayer, 105 U. S. 143 246 
 
 ScovJUe v. Tolland, 6 West. Law Jour. 84 S2 
 
 Scranton v. Clark, 39 N. Y. 220 170 
 
 Searing v. Searing, 9 Paige, 283 114 
 
 Secor V. Secor, 18 Abb. N. C. 78 n 21 
 
 Seddenv. Prindle, 17 Barb. 466 169 
 
 Seller V. Clelland, 2 Col. 532 162 
 
 Sellon V. "Watts, 7 Jur. N. S. 134, 9 Weekly Repr. 847 232 
 
 Semayn's Case, 5 Co. R. 91 296 
 
 Sessions v. Mosely, 4 Cush. 87 „ 124 
 
 Sewal v. Glidden, 1 Ala. 52 117 
 
 Sewal V. Jones, 9 Pick. 412 100 
 
 Sewell V. Price, 32 Ala. 97 276 
 
 Sexton V. Montgomery Ins. Co., 9 Barb. 191 220 
 
 Sexton V. Wheaton, 8 Wheat. 229 119,121 
 
 Seymont v. Street, 5 Neb. 85 265 
 
 Seymour v. Davis, 2 Sandf . 229 141 
 
 Seymour v. Minturn, 17 Johns. 169 269 
 
 Seymour v. Newton, 105 Mass. 275 179 
 
 Shaf tsbury v. Shaftsbury, 2 Vern. 747 232 
 
 Shanks V. Klein, 104 U. S. 18 37 
 
 Shannon v. Jones, 4 Ired. (N. C.) L. 206 16 
 
 Shardlow v. Cottrell, 18 Ch. D. 280, 20 Ch. D. 90 C. A... 15] 
 
 Sharington v. Stratton, 1 Plow. 298, 309 269 
 
 Sharp v.'Gibbs, C. B. 4 N. S. 527 265 
 
 Sharp T. Gray, 5 B. Monr. 4 104 
 
 Sharpley v. Harrell, Cro. Jac. 208. 286 
 
 Shaver v. Shaver, 37 Am. Rep. 194, 54 Iowa, 208 91, 97 
 
 Shaw V. Barhart, 17 Ind. 183 272 
 
 Shaw V. Beveridge, 3 Hill, 26 19 
 
 Shaw V. Corbrey, 13 Allen, 462 143 
 
 Shawham v. Van Nast, 25 Ohio St. 490 157 
 
 Shawhant v. Van West, 25 Ohio St. 490 187 
 
 Shears v. Sollinger, 10 Abb. Pr. Rep. (N. S.) 287 112 
 
IXXXiv TABLE OF CASES. 
 
 [References are to pages.] 
 
 Sheldon, etc. Co. v. Bickmeyer, etc. Co., 56 How. Pr. 71, 90 
 
 N. Y. 607 253 
 
 Sheldon v. Fairfax, 21 Vt. 102 41 
 
 Shepherd V. Hampton, 3 Wheat. 200 190 
 
 Shepard v. Milwaukee Gas Light Co., 15 Wis. 318 191 
 
 Shepherd v. Pressey, 32 N. H. 49 146 
 
 Sherman v. Champion Transp. Co., 31 Vt. 162 170 
 
 Sherman v. Duch, 16 111. 283 295 
 
 Sherwood v. Am. Bihle Soc, 1 Keyes, 561 39 
 
 Shickle v. Watts, 7 S. W. Rep. 274 245 
 
 Shinners v. Brill, 38 Wis. 648 279 
 
 Shook T. Daly, 49 How. Pr. 366, 368 83 
 
 Shuart v. Taylor, 7 How. Pr. 251 277 
 
 Shuman t. Shuman, 27 Pa. St. 90 167 
 
 Shuttleworth v. Greaves, 4 Mylne & C. 35 230 
 
 ShutUeworthv. Winter, 55 N. Y. 624 120 
 
 Sibley V. Perry, 7 Ves. 530 227 
 
 Sidener v. Bihle, 43 Ind. 230 282 
 
 Siegert v. Abbott, 61 Md. 276, 48 Am. Rep. 101 94 
 
 Silsby V. Barlow, 16 Gray, 329 39 
 
 Silsbury v. McCoon, 6 Hill, 425, 3 N. Y. 379 64, 65 
 
 Simmons v. Clark, 56 111. 96 266 
 
 Simonds v. Hodgson, 3 Barn. & Adol. 50 286 
 
 Simmons V. Jenkins, 76 111. 479 279 
 
 Simmons V. Swift, 5 B. & C. 857 Ibi 
 
 Singer Manuf . Co. v. Kimball, Scottish L. R. 173 97 
 
 Singer v. Walmsley, 1 Fish. 558 70 
 
 Slsson V. Hibbard, 10 Hun, 420 278 
 
 Six Carpenters' Case, 8 Rep. 146 h 294 
 
 Skinner v. Dayton, 19 Johns. 513 44 
 
 Skinner v. Oakes, 10 Mo. App. 45 91, 93 
 
 Skinner v. Perot, 1 Ashur. 57 100 
 
 Sledge V. Scott, 56 Ala. 202 162 
 
 Sleuter v. Wallbaum, 45 111. 44 190 
 
 Slocum V .Seymour, 36 N. J. L. 138 143 
 
 Smart v. Batchelder, 51 N. H. 140 153 
 
 Smith V. Acker, 23 Wend. 654 279 
 
 Smith V. Alexander, 4 Sneed, 482 273 
 
XABLE OF OASES. IxxXV 
 
 [References are to pages.] 
 
 Smith T. Andrews, 49 111. 28 277 
 
 Smith T. Arnold, 5 Mason, 416 151 
 
 Smith v. Seattle, 31 N. Y. 542 274 
 
 Smith T. Benson, 1 Hill, 176 277 
 
 Smith V. Brown, 3 Hawks, 850 267 
 
 Smithv.Bryan, 5 Md. 141 143 
 
 Smith V. Clark, 34 Barb. 140 131 
 
 Smith V. Colson, 10 Johns. 91 293 
 
 Smith v. Coolbaugh, 21 Wis. 427 277,-282 
 
 Smith V. Dolby, 4 Harr. (Del.) 350 131 
 
 Smith T. Dorsey, 38 Ind. 451 122 
 
 Smith V. Dunlap, 12 111. 184 190 
 
 Smith V. Ely, 15 How. 137 71 
 
 Smith V. Flyer, 2 Hill, 648 293 
 
 Smith T. Hudson, 5 B. & S. 431, 34 L. J. Q. B. 145 145, 146 
 
 Smith V. Hughes, 6 Q. B. 597 163 
 
 Smith V. Jenks, 1 Denio, 580, 1 N. T. 90 27-7 
 
 Smith V. Jones, 18 Neb. 481 38 
 
 Smith V. Jones, 66 Ga. 338 150 
 
 Smith V. Jones, 4 Ohio, 115 232 
 
 Smith V. Kay, 7 H. L. Cas. 774 163 
 
 Smith V. Knowlton, 11 N. H. 191 260 
 
 Smith V. Lampton, 8 Dana, 69 227 
 
 Smith v. Maryland, 6 Cranch, 286 273 
 
 Smith T. McChesney, 15 N. J. Ch. 359 131 
 
 Smith V. Miller, 43 N. T. 171, 52 N. Y. 546 181, 182 
 
 Smith V. Moore, 11 N. H. 55 282 
 
 Smith V. Neal, 2 C. B. (N. S.) 67, 26 L. J. C. P. 143 152 
 
 Smith V. New York, etc. Co., 18 Abb. Pr. 419, 435. 253 
 
 Smithv.N. Y. C. R. R. Co., 4 Keyes, 180 141 
 
 Smith V. Park, 31 Minn. 70 11 
 
 Smithv.Pettee, 70 N. Y. 13, 18 176,187 
 
 Smithv.Rice, 56 Ala. 417 277 
 
 Smith V. Shell, 82 Mo. 215 152 
 
 Smith V. Smith, 4 Rand, 95 34 
 
 Smith V. Smith, 21 Pa. St. 367 160 
 
 Smith V. Smith, 8 Blackf. 208 152 
 
 Smith r. Smith, 1 Thomp. & Cook (N. Y.) 63 : . . 256 
 
IxXXVi TABJLB OF GASES. 
 
 [References are to pages.] 
 
 Smith v.Spooner, 3 Pick. 229 100 
 
 Smith V. Stanchfield, 7 Am. B. R. 498 269 
 
 Smith V. Stewart, 6 Johns. 48 298 
 
 Smith V. Surman, 9 B. & C. 561 142 
 
 Smith V. Waggoner, 50 Wis. 155 9 
 
 Smith V. Waite, 4 Barb. 28 131 
 
 Smith V. Walker, 57 Mich. 456 , 92 
 
 Smith V. Weaver, 90 111. 392 132 
 
 Smith V. Wheeler, 5 Gray, 309 173 
 
 Smithv.Wood, 37 Tex. 616 256 
 
 Smithurst V.Edmunds, 14 N. J. Eq. 408 138 
 
 Smithurst v. Woolston, 5 Watts & S. 106 190 
 
 Sneed v. Hooper, Cook (Tenn.) 200 105 
 
 Snevily v. Read, 9 Watts, 396 205 
 
 Snow V. Perkins, 60 N. H. 493, s. c. 49 Am. Rep. 333 18 
 
 Snow V. Warner, 10 Met. 132 146 
 
 Snowdon V. Craig, 26 Iowa, 165 278 
 
 Snyder v. Knuckleman, 3 Penn. 487, 490 293 
 
 Snyder v. Snyder, 60 How. Br. R. 368 21, 20 
 
 Soars V. Home Ins. Co., 140 Mass. 343 222 
 
 Sohier v. Trinity Ch., 109 Mass. 1 19 
 
 Soles V. Hickman, 20 Pa. St. 180 151 
 
 Somes V. British Empire Shipping Co., 1 E. B. & E. 367, Li. 
 
 J. Q. B. 220, 8 H. L. C. 338, 30 L. J. Q. B. 221 187 
 
 Somers V. Richards, 46 Vt. 170 162 
 
 Somers v. Wright, 115 Mass. 292 190 
 
 Southworth v. Smith, 27 Conn. 355 31,34 
 
 South Carolina v. Seymour, 153 U. S. 82 91 
 
 Spangler v. Ind. & 111. Central R. R. Co., 21 111. 276 242,243 
 
 Sparhawk v. Buell, 9 Vt. 41 231 
 
 Spears v. Hartley, 3 Esp. 81 204 
 
 Spencer v. McGown, 13 Wend. 256 296 
 
 Spivey v. Morris, 18 Ala. 254 104, 273 
 
 Spxigg V. Bank of Mt Pleasant, 14 Pet 201 276 
 
 String Co. v. Knowlton, 13 Otto, 49 , 194 
 
 S. P. Stubbs V. Houston, 33 Ala. 555 129 
 
 St. Joseph R. R. Co. v. Shacklett, 30 Mo. 551, 558 237 
 
 St. Joze V. Indians, 1 Wheat. 208 155 
 
TABLE OF CASES. Ixxxvil 
 
 tReferences are to pages.] 
 
 St. Louis Iron M. etc. Co. v. Loftin, 30 Ark. 693, 709 237 
 
 St. Paul's Gh. V. Ford, 34 Barb. 16 19 
 
 Stafford Bank v. Palmer, 47 Conn. 443 247 
 
 Stafford v. Bryan, 2 Paige, 45, 3 Wend. 532 202,205 
 
 Stagg V. Beekman, 2 Edw. Ch. 89 23& 
 
 Stagg V. Compton, 81 Ind. 171 135 
 
 Stalnbank v. Fanning, 6 Eng. L. & Bq. 412 288 
 
 Stall V. "Wilbur, 77 N. Y. 158 34 
 
 Stanley v. Nelson, 28 Ala. 514 16T 
 
 Stanley v. Whipple, 3 McLean, 35 70 
 
 Stansfleld v. Portsmouth, 4 C. B. (N. S.) 119 11 
 
 Stanton v. Eager, 10 Pick. 475 17S 
 
 Stanton v. Small, 3 Sandf. 230 137 
 
 Starbuck v. Murray, 5 Wend. 148 262 
 
 State V. Armfield, 2 Hawks. 246 296 
 
 State V. Bailey, 16 Ind. 46 253 
 
 State T. Bonham, 18 Ind. 231 8 
 
 State V. Doe, 79 Ind. 9 60 
 
 State V. Franklin Bank, 10 Ohio, 90, 97 42 
 
 State V. House, 65 N. C. 315 60 
 
 State v. Lyman, 26 Ohio St. 400 60 
 
 State of Maine v. Intoxicating Liquors, 61 Me. 520 271 
 
 State V. Moore, 18 Mo. App. 406 105 
 
 State V. Murphy, 8 Blackf. 498 60 
 
 State V. Randolph, 26 Mo. 213 264 
 
 State v. Smith, 2 Me. 62 264 
 
 State V. Thackaw, 1 Bay, 358 296 
 
 State V. Whittaker, 19 La. Ann. 142 264 
 
 Stedman v. Gooch, 1 Esp. 3, 4 181 
 
 Steadman v. Page, 1 Salk. 390 294 
 
 Stearns v. Barrett, 1 Mason, 153 73 
 
 Stearns V. Hall, 9 Cush. 31 271 
 
 Stearns V. Washburn, 7 Gray, 187 173 
 
 Stephenson v. Dowson, 3 Beav. 342 22S 
 
 Stevens v. Briggs, 5 Pick. 177 64 
 
 Stevens V.Lodge, 7 Blackf. 594 296 
 
 Stevens V. Vancleve, 4 Wash. C. C. 262 12» 
 
 Stevenson v. Newnham, 13 C. B. 285, 22 L.. J. C. P. 10.... 16& 
 
 g 
 
IxXXviii TABLE OF CASES. 
 
 [References ar» to pages.] 
 
 Stevenson v. Lambard, 2 Bast, 576 302 
 
 Stewart V.Bell, 33 Miss. 154 62 
 
 Stewartv.Lay, 45 Iowa, 604 246,250 
 
 Stires v. Van Rensselaer, 2 Bradf . Surr. 172 231 
 
 Stockdale v. Onwhyn, 5 Bam. & C. 173 83 
 
 Stocken's Case, L. R. 3 Ch. 412 244 
 
 Stocker v. Partridge, 2 Roberts, 193 150 
 
 Stockett V. Sasscer, 8 Md. 374 202 
 
 Stockham v. Stockham, 32 Md. 196. 135 
 
 Stockton V. Ford, 18 How. 418 263 
 
 Stockwell V. Phelps, 34 N. Y. 363 61 
 
 Stoddard v. Dennison, 38 How. Pr. 296 284 
 
 Stoddard v. Shetucket Foundry Co., 34 Conn. 542 239 
 
 Stokes V. Cooper, 4 Camp. 514 302 
 
 Stokes V. Hollis, 43 Ga. 262 276 
 
 Stone V. Aldrich, 43 N. H. 52 31 
 
 Stone V. Browning, 68 N. T. 598, 51 N. Y. 211 145 
 
 Stone V. Flagg, 72 111. 397 39 
 
 Stone V. Nichols, 43 Mich. 16 183 
 
 Stone V. Peacock, 35 Me. 388 153 
 
 Stonebreaker v. Stonebreaker, 33 Md. 252 97 
 
 Story's Ex'rs v.. Holcombe, 4 McLean, 306 83 
 
 Storey's Will, 20 111. App. 183 130 
 
 Stout V. City Fire Ins. Co., 12 Iowa, 371 217 
 
 Stoval V. Barnett, 4 Litt. 207 270 
 
 Strauss v. Eagle Ins. Co., 5 Ohio St. 59 ^ 
 
 Strauss v. Frederick, 19 N. C. 121 38 
 
 Strauss v. Ross, 25 Ind. 300 153 
 
 Street V. Blay, 2 Barn. & Ad. 456 272 
 
 Street V. Chapman, 29 Ind. 142 135 
 
 Strickland v. Turner, 7 Ex. 208 137 
 
 Strohecker v. Grant, 18 Serg. & R. 237 299 
 
 Strong v.jColter, 13 Minn. 82 32 
 
 Strong v. Doyle, 110 Mass. 92 143 
 
 Strong V. Manuf . Ins. Co., 10 Pick. 40 215 
 
 Strong V. Williams, 12 Mass. 391 235 
 
 Stuart T. Landers, 16 Cal. 372 ., 103 
 
TABLE OF CASES. IxxxJi 
 
 [References aro to pages.] 
 
 Strubee v. Cincinnati So. Ry. Trustees, 39 Am. Rep. 251, 
 
 78 Ky. 481 66 
 
 Stubbs V*. Lund, 7 Mass. 453, 456 177 
 
 Sturges V. Crownlnshield, 4 Wheat. 122, 195, 12 Wheat. 
 
 119 110, 112 
 
 Suber v. Pulling, 1 S. C. 273 141 
 
 Suisse V. Lowther, 2 Hare, 424, 432, 433 228 
 
 Sullivan v. Park, 33 Me. 438 100 
 
 Sumner V. Sumner, 7 Harr. & J. (Md.) 388 131 
 
 Summers v. Vaughn, 35 Ind. 323 169 
 
 Sun Mut. Ins. Co. v. Mayor, 8 Barb. 450 223 
 
 Sutton V. Sutton, 5 Harr. (Del.) 459 129 
 
 Sweny v. Smith, L. R. 7 Bq. 324 244 
 
 Swiggart t. Harbor, 5 111. 364 263 
 
 Swtooper's Appeal, 27 Pa. St. 58 233 
 
 Sykes v. Beadon, 11 Ch. D. 170 167 
 
 Syler v. Eckhart, 1 Binn. (Pa.) 378 119 
 
 Sylvester v. Girard, 4 Rawle, 185 54 
 
 Symons v. Hughes, 2 Eq. 475, 479 194 
 
 T. 
 
 Taber v. Hamlin, 97 Mass. 498 274 
 
 Taft V. Travis, 136 Mass. 95 138 
 
 Talbot V. DeForest, 3 Iowa, 586 274 
 
 Talbot V. Conger, 151 N. Y. 119 11 
 
 Tallman v. Franklin, 14 N. Y. 584 15D 
 
 Tallmanv.Hoey, 89 N. Y. 537 196 
 
 Tallman V. Jones, 13 Kan. 438 279 
 
 Talman v. Smith, 39 Barb. 390. .. : 280 
 
 Tancil v. Seaton, 28 Gratt. (Va.) 601 54 
 
 Tanner v. Smart, 6 B. & C. 603, 609 202,203 
 
 Tappan t. Bailey, 4 Md. 535 44 
 
 Tate V. Williamson, L. R. 2 Ch. 55 161 
 
 Tayloe v. Insurance Co., 9 How. 390. 135 
 
 Taylor V. Bowers, 1 Q. B. D. 291, C. A 194 
 
 Taylor v. Carpenter, 3 Story, 458 93 
 
ZC TABLE OF CASES. 
 
 [References are to pages.] 
 
 Taylor v. Carpenter, 2 Sandf . Ch. 611, 612 97 
 
 Taylor V. Cox, 2 B. Mon. (Ky.) 429 31 
 
 Taylor v.Kelley. 5 Hun, 115 117 
 
 Taylor v. Jones, L. R. C. P. D. 87 135 
 
 Taylor v. Patterson, 9 La. An. 251 100 
 
 Taylor v. Taylor, 8 How. 199 125 
 
 Taylor et al t. The United States, 3 How. 197 54 
 
 Taylorv. Wilson, 11 Met. 44 182 
 
 TeafC V. Hewitt,! Ohio N. S. 511 8 
 
 Teese v. Phelps, 1 McAU. 48 70 
 
 Temple v. Mead, 4 Vt. 536 130 
 
 Tenney v. The N. E. Protective Union, 37 Vt. 64 43,44 
 
 Terboss v. "Williams, 5 Cow. 407 295 
 
 Terrell v. Martin, 64 Tex. 121 31 
 
 Terry v. Wheeler, 25 N. Y. 525 154 
 
 Terwilliger v. Knapp, 2 B. D. Sm. 86 174 
 
 Tesson v. Atlantic Mut. Ins. Co., 40 Mo. 33 218 
 
 Tewksbury v. Bennett, 31 la. 83 170 
 
 The Agelica, Blatchf. Pr. Cases, 566 53 
 
 The Augusta, 1 Dod. 283 289 
 
 The Aurora, 1 Wheat. 96 289 
 
 The Bray v. Bates, 9 Met. 237 286 
 
 The Brig Atlantic, 1 Newb. Adm. 514 287 
 
 The Brig Nestor, 1 Sumn. 85 289 
 
 The Caledonia, 4 Wheat. 100 53 
 
 The Cargo of Ship Emulous, 1 Gall. 563 53 
 
 The Chusan, 2 Story C. C. 468 289 
 
 The Cognac, 2 Hagg. Adm. 387 286 
 
 The Collins Co. v. Cowen, 3 Kay & J. 428 93 
 
 The Collins Co. v. Brown, 3 Kay & J. 423 93 
 
 The Constancia, 10 Jur. 850 288 
 
 The Draco, 2 Sumn. 157 285, 287 
 
 The Duke of Bedford, 2 Hagg Adm.. 294 287 
 
 The Emancipation, 1 Wm. Rob. 129 287 
 
 The Fortitude, 3 Sumn. 246 287 
 
 The Glen £ Hale Manuf. Co. v. Hall, 61 N. Y. 226, 230. . 92, 95 
 
 The Hero, 2 Dod. 139 289 
 
 The Hilarity, Blatchf. & H. Adm. 90 287 
 
TABLE OF CASES. XOl 
 
 [References are to pages.] 
 
 Tlie Hunter, Ware, 341 287 
 
 The Jane, 1 Dod. 466 287 
 
 The Kammerheive v. Rozencratz, 1 Hagg. Adm. 62 288 
 
 The King v. Dodd, 9 East, 516 43 
 
 The Leather Cloth Co. v. The Am. Leather Cloth Co., 
 
 De Gex, J. & S. 137, 11 House of Lords Cas. 523 92, 94 
 
 The Lord Cochrane, 2 Wm. Rob. 320 287 
 
 The Lucy Ann, 23 Law Rep. 545 115 
 
 The Madonna D'Idra, 1 Dod. 40 288 
 
 The Mary, 1 Paine, 671 286, 287 
 
 The Mary Ann, 9 Jur. 95 288 
 
 The Mears, 8 Cranch, 417 100 
 
 The Merrimac, Blatchf . Pr. Cases, 584 53 
 
 The Nelson, 1 Hagg. 169, 176 288, 289 
 
 The Packet, 3^ Mason, 255 289 
 
 The Royal Stuart, 33 Bng. L. & Bq. 602 287 
 
 The Ship Packet, 3 Mason, 255 287 
 
 The Sidney Cove, 2 Dod. 1, 13 288 
 
 The State v. Stevenson, 2 Baily, 334, 335 100 
 
 The State v. Weston, 9 Conn. 527 55 
 
 The Surplus, etc. of the Edith, 5 Ben. 144 257 
 
 The Tartar, 1 Hagg. 1 289 
 
 The Virgin, 8 Pet. 638, 8 Pet. 583 288 
 
 The Ysabel, 1 Dod. 273 289 
 
 The Zodiac, 1 Hagg. 320, 326 289 
 
 Thomas' Case, L. R. 13 Eq: 437 244 
 
 Thomas' Case, 1 De Gex & Sm. 579 250, 251 
 
 Thomas v. Heathorn, 2 B. & C. 477 267 
 
 Thomas v. Hunter, 29 Md. 412 .• 185 
 
 Thompson's Appeal, 57 Pa. St. 175 263 
 
 Thompson V. Blanchard, 4 N. Y. 303 275 
 
 Thompson v. French, 10 Yerg. 453 20Tt 
 
 Thompson v. Hyner, 67 Penn. 368. 129 
 
 Thompson v. Pacific R. R. Co., 9 Wall. 519 39 
 
 Thompson V. Ray, 46 Ala. 224 154 
 
 Thompson T. Spittle, 102 Mass. 207 277 
 
 Thompson v. Stanhope, Amh. 732 85 
 
 Thompson v. Thompson, 6 Munf . 514, 4 Cush. 134 13, 109 
 
XCU TABLE OP CASES. 
 
 [References are to pages,] 
 
 Thompson t. The Bank of British N. A., 82 N. T. 1 182 
 
 Thompson v. Winchester, 19 Pick. 214 97 
 
 Thomson v. Batie, 11 Neb. 147, 151 274 
 
 Thomson v. Dougherty, 12 Serg. & R. 448 119,120 
 
 Thorn v. Newsom, 64 Tex. 161 261 
 
 Thorn V. Sutherland, 123 N. Y. 236 11 
 
 Thorn v. Thorn, 51 Mich. 167 27^ 
 
 Thome v. Barwick, 16 Up. Can. C. P. 369 136 
 
 Thorndike v. Stone, 11 Pick. 183, 187. 285, 286, 287 
 
 Thornton v. Crowley, 47 N. Y. Super. Ct. (15 J. & S.) 527 90 
 
 Thornton v. Kempster, 5 Taunt. 786 . 151 
 
 Thurlow V. Massachusetts, 5 How. U. S. Rep. 504 4 
 
 Thurst V. West, 31 N. Y. 215 104 
 
 TifEt V.Porter, 8 N. Y. 518 226,227 
 
 TitEtv.Hortoi?, 53 N. Y. 377 278 
 
 Tiley v. Moyers, 43 Pa. St. 404 302 
 
 Tillinghast v. Wheaton, 8 R. I. 536 125 
 
 Tilton Safe Co. V. Tisdale, 48 Vt. 83 171 
 
 Timms V. Shannon, 19 Md. 296 282 
 
 Tinney v. Stebbins, 28 Barb. 290 34 
 
 Tippets V. Heane, Cromp. M. & R. 252 204 
 
 Tisdale v. Harris, 20 Pick. 9 141 
 
 Tobey v. Barber, 5 Johns. 68 .' 181 
 
 Tobeyy.Reed, 9 Conn. 216 14,15 
 
 Tobey V. Russell, 9 R. I. 68 246 
 
 Todd v. Harding, 5 Ala. 698 276 
 
 Tompkins v. Halleck, 133 Mass. 32, 43 Am. Rep. 480 89 
 
 Tongue V. Nutwell, 31 Md. 302 215 
 
 Tongue v. Nutwell, 13 Md. 415 231 
 
 Tower v. Tudhope, Up. Can. Q. B. 200 146 
 
 Towns V. Springer, 9 Ga. 130 260 
 
 Townsend v. Henry, 9 Rich. L. 318 183 
 
 Traders' Mut. Ins. Co. v. Stone, 9 Allen (Mass.) 483.... 222 
 
 Trammell v. Thurmond, 17 Ark. 203 273 
 
 Transportation Co. v. Chicago, 99 U. S. Rep. 367 4 
 
 Treadwell v. Salisbury Mfg. Co., 7 Gray, 392 253 
 
 Treakly v. Fox, 9 B. & C. 130 235 
 
 Trebilcock v. Wilson, 12 Wall. 687 257 
 
TABLE OP CASES. XClll 
 
 [References are to pages.] 
 
 Tredwen v. Holman, 1 Hurl. & C. 72 222 
 
 Trevor v. Wood, 36 N. Y. 307 135 
 
 Trimble v. Ratcliffe, 9 B. Mon. 511 119 
 
 Tripp v. Riley, 15 Barb. 333, 336 33, 34 
 
 Tritt's Adm'rs t. Colwell's Adm'rs, 31 Penn. 232 114 
 
 Trost V. Dingier, 118 Pa. St. 259 130 
 
 Trott V. City Ins. Co., 1 Cliff. (U. S. C. Ct.) 438 222 
 
 Trucks V. Lindsay, 18 Iowa, 505 283 
 
 Trumen v. Fenton, Cowper, 548 199 
 
 Tryon v. Sutton, 13 Cal. 490 .'.. 114 
 
 Tucker Manuf . Co. v. Boynton, 10 TJ. S. Pat. Gaz. 455 .... > 93 
 
 Tucker V. West, 29 Ark. 386 167 
 
 Tucker v. Woods, 12 Johns. 190 135 
 
 Tuckerman v. Brown, 33 N. Y. 297 224 
 
 Turner v. Burrows, 8 Wend. 144 215 
 
 Turner v. Langdon, 112 Mass. 265 17? 
 
 Turner v. Tendall, 1 Cranch, 116 258 
 
 Tuthill V. Skidmore, 124 N. Y. 148 178 
 
 Tutton V. Darke, 5 Hurl. & N. 654 295 
 
 Tyler v. .(Etna Ins. Co., 12 Wend. 507 218 
 
 Tyler v. Gardiner, 35 N. Y. 559 129 
 
 U. 
 
 Umsted v. Buskirk, 17 Ohio St. 113 250 
 
 Union Ins. Co. v. Hoge, How. (U. S.) 35 222 
 
 Union Meeting House v. Rowell, 66 Me. 400 19 
 
 United States v. Behan, 110 U. S. 338 191 
 
 United States v. Burdett, 9 Pet. 682 100 
 
 United States v. Delaware Ins. Co., 4 Wash. C. C. 418 288 
 
 United States Roche, 1 McCrary C. C. 385 91 
 
 United States v. Seventy-six Thousand One Hundred and 
 
 Twenty-five Cigars, 18 Fed. Rep. 147 100 
 
 United States v. StefCens, 100 U. S. 82 91 
 
 United States v. Tanner, 6 McLean, 128 85 
 
 United States v. The Active, 2 Car. Law Rep. 192 ~^ 54 
 
 United States v. Thompson, Gilp. 614 270 
 
iClV TABLE OF CASES. 
 
 CReferencea are to pages.] 
 
 United States v. Two Hundred, etc., Bales of Cotton, Law 
 
 Rep. N. S. 451 54 
 
 Updegraph v. Commonwealth, 11 Serg. & R. 394 84 
 
 Upton V. Hansbrough, 3 Biss. 417 248 
 
 Upton V. Tribilcock, 91 U. S. 45 246 
 
 Utley v. Donaldson, 94 U. S. 29, 47 135 
 
 Y. 
 
 Vacuum Oil Co. v. Buffalo Lubricating Oil Co., 26 Weekly 
 
 Dig. 570 96 
 
 Vaden v. Vaden, 1 Head. (Tenn.) 144 113 
 
 Vail V. Strong, 10 Vt. 457 132 
 
 Va-isey v. Reynolds, 5 Russ. 12 251 
 
 Valentine v. Foster, 1 Met. 520 205 
 
 Valentine v. Jackson, 9 Wend. 302, 322 108, 293 
 
 Van Bell V. Prescott, 82 N. Y. 630 94 
 
 Van Bracklin v. Fonda, 12 Johns. 468 172 
 
 Vandenberg v. Palmer, 4 Kay & John. 204 118 
 
 Vanderheyden v. Mallory, 1 N. Y. 452 268 
 
 Vap Deusen v. Rowley, 8 N. Y. 358 119 
 
 Van Doren v. Baity, 11 Hun, 239 31 
 
 Van Dyke V. Bastedo, 15 N. J. L. 224 273 
 
 Van Guysling V. Van Kuren, 35 N. Y. 70 129 
 
 Van Hanswyck v. Wiese, 44 Barb. 494 129 
 
 Van Houton v. Reformed Dutch Ch., 2 Green (N. J.) 126 20 
 
 VanNest v. Conover, 20 Barb. 547 163 
 
 Van Nostrand v. Carr, 30 Md. 128 112 
 
 Van Rensselaer v. Bradley, 3 Denio, 135 803 
 
 Van Rensselaer v. Dennlson, 35 N. Y. 393 26 
 
 Van Rensselaer's Ex'rs v. Gallup, 3 Denio, 445 303 
 
 Van Rensselaer's Ex'rs v. Jewett, 5 Denio, 135 293 
 
 Van Rensselaer v. Jones, 2 B^rb. 643 303 
 
 Van Ripper v. Van Ripper, 1 Green. Ch.l 235 
 
 Van Valkenburgh v. Smith, 60 Me. 97 269 
 
 Van Vechten v. Van Vechten, 8 Paige, 104 142, 229 
 
 Van Wert v. Benedict, 1 Bradf. Surr. 114 130 
 
 Vassar v. Buxton, 86 N. C. 335 154 
 
TABLE OF CASES. XCV 
 
 [References are to pages.] 
 
 Vasser v. Camp. 11 N. Y. 441 135 
 
 Ventress V. Smith, 10 Pet. 161 56 
 
 Vermilyea v. Austin, 2 E. D. Smith, 203 301 
 
 Viele V. Osgood, 8 Barb. 130 19 
 
 Vincent v. Leland, 100 Mass. 432 192 
 
 Virtue v. Beasley, 2 Mood. & M. 21 294 
 
 Voorhees v. McGinnis, 48 N. Y. 278, 287 278 
 
 Voorhes v. Earl, 2 Hill, 288 192 
 
 Voorhees v. Presb. Ch., 17 Barb. 103 20 
 
 Voorhies t. Earl, 2 Hill, 292 271 
 
 Voorhis v. Child's Ex'r, 17 N. Y. 354 36 
 
 Vorebeck v. Rowe, 5 Barb. 302 143 
 
 Vose V. Deane, 7 Mass. 280 264 
 
 Vose V. Life and Health Ins. Co., 6 Cush. 42 219 
 
 Vroom T. Van Home, 10 Paige, 549 108 
 
 W. 
 
 Waddington V. Bristow, 2 B. & P. 452 142 
 
 Waddington v. Buzby, 43 N. J. Eq. 154 130 
 
 Wade T. Moffitt, 21 111. 110, 74 Am. Dec. 79 154, 173, 189 
 
 Wadleigh r. Janvrin, 41 N. H. 508 8 
 
 WagstafE v. "Wagstaff, Law R. Eq. 229 132 
 
 Walnnaman v. Keinman, 1 Ezch. 118 185 
 
 Wainwright v. Bland, 2 Mad. & Rob. 481, 1 Mees. & W. 32 213 
 
 Waite V. Dennison, 51 111. 319 284 
 
 Wakefield v. Fargo, 90 N. Y. 213 248 
 
 Walden v. Chamberlain, 3 Wash. 290 287 
 
 Waldman v. Broder, 10 Cal. 378 31 
 
 Waldo T. Belcher, 11 Ired. 609 153, 156 
 
 Walker v. Bartlett, 18 C. B. 845 249 
 
 Walker's Case, 3 Rep. 22 b 298 
 
 Walker V. Hall, 34 Pa. St. 483 1-31 
 
 Walker v. Pue, 57 Md. 155 171 
 
 Walker V. Staples, 5 Allen, 34 281 
 
 Walker V. Suple, 54 Ga. 178 141 
 
 Walker V. Wait, 50 Vt. 668 203 
 
 Wall V. Wall, 28 Miss. 409 263, 273 
 
XCVl TABLE OF CASES. 
 
 [References are to pages.] 
 
 Wallace v. Breeds, 13 East, 522 156 
 
 Wallacev. Burden, 97 N. Y^ 131 117 
 
 Wallace V. Pomfret, 11 Ves. 542 233 
 
 Walrath v. Ingles, 64 Barb. 265 148 
 
 Walls V. Gates, 6 Mo. Ap. 242 ...'. 192 
 
 Walls V. Stewart, 4 Harris, 281 226 
 
 Walter v. Flint, Cro. Eliz. 742 303 
 
 Walton v. Crowley, 3 BlatcM. C. C. 440 94 
 
 Walton v. Walton, 7 Johns. Ch. R. 258, 262, 264 232 
 
 Walsh V. Sexton, 55 Barb. 251, 256 125 
 
 Walsh V. Washington, etc., Ins. Co., 32 N. Y. 427 220 
 
 Warburton v. Aken, 1 McLean, 460 263 
 
 Ward v. Griswoldville Mfg. Co., 16 Conn. 593 245 
 
 Ward V. Shaw, 7 Wend. 404 153 
 
 Ward v. State, 48 Ala. 161 60 
 
 Ward V. Turner, 2 Ves. Sen. 431, 439, 440 121, 124 
 
 Warel v. Lant, Free. Ch. 182 233 
 
 Warne v. Beach, 4 Gray, 162 131 
 
 Warner v. Wellington, 3 Drew. 523, 25 L. J. Ch. 662 .... 152 
 
 Warren V. Leland, 2 Barb. 613 143 
 
 Warren v. State, 1 Greene (la.) 106 60 
 
 Warren v. Tomey, 13 Serg. & R. 52 , 293 
 
 Warren V.Tyler, 81 111. 15 272 
 
 Warren v. Whitney, 24 Me. 561 205 
 
 Warriner v. The People, 74 111. 346 182 
 
 Wart V. Scott, 6 Grant (Ont), 154 178 
 
 Washburn v. Gould, 3 Story, 122 69, 70 
 
 Washburn v. Merrills, 1 Day, 139 276 
 
 Waters v. Thanet, 2 Q. B. 757 200 
 
 Water's Patent Heating Co. v. Smith, 120 Mass. 444 272 
 
 Waterman v. Meigs, 4 Cush. 497 140, 151 
 
 Watkinson V. Inglesby, 5 John. 386 266 
 
 Watts V. Friend, 20 B. & C. 446 144 
 
 Waugh V. Cope, 6 M. & W. 824 204 
 
 Waukford v. Waukford, 1 Salk. 299 235 
 
 Waukon, etc., R. R. Co. v. Dwyer, 49 Iowa, 121 240 
 
 Waydell v. Velie, 1 Bradf . 277 184 
 
 Wear v. Jacksonville £ Savannah R. R. Co., 24 111. 593 . . 243 
 
TABLE OP CASES. XCVil 
 
 [References are to pages.] 
 
 Weaver v. Wallace, 9 N. J. L. 251 163 
 
 Webster v. DeWitt, 36 N. Y. 340 123 
 
 Webster v. Granger, 78 111. 230 171 
 
 Webster v. Upton, 91 U. S. 65 248 
 
 Webster V. Zielly, 52 Barb. 482 149 
 
 Weed v. Boston Ice Co., 12 Allen, 377 154 
 
 Weeks v. Burton, 7 Vt. 67 162 
 
 Weeks v. Silver Islet, etc., Co., 55 N. Y. Super. Ct. (J. & 
 
 S.) 1, 16, 55 J. & S. (N. Y.) 1 99, 244 
 
 Weikersheim's Case, L. R. 8 Ch. 831 250 
 
 Weir V. Bell, L. R. 3 Ex. D. 238 162 
 
 Welch V. Sackett, 12 Wis. 243 32 
 
 Weld V. Cutler, 2 Gray, 195 153 
 
 Weld V. Oliver, 21 Pick. 559 33 
 
 Weld V. Walker, 130 Mass. 422; s. c. 39 Am. Rep. 465 21 
 
 Weller v. Shearman, 2 Denio, 362 295 
 
 Wells V. Larrabee, 86 Ted. Rep. 866 250 
 
 Wells V. March. 30 N. Y. 344 37 
 
 Wells V. Martine, 2 Bay, 20 100 
 
 Wentworth v. BuUen, 9 B. & C. 850 . . , . : 267 
 
 Wentworth v. Day, 3 Met. 352 56 
 
 Wentworth's Ex'rs, 2 Phill. 261 230 
 
 Wentworth v. First Parish, 3 Pick. 344 19 
 
 West Branch Ins. Co. v. Helfenstein, 40 Pa. St. 289...... 216 
 
 West V. Crary, 47 N. Y. 423 '. 282 
 
 West V. Pritchard, 19 Conn. 212, 215 190, 191 
 
 West V. Wentworth, 3 Cow. 82 191 
 
 Westchester, etc., R. R. Co. v. Jackson, 77 Pa. St. 321. ... 239 
 
 Westcott V. Minnesota, etc., Co., 23 Mich. 145 243 
 
 Westervelt v. Lewis, 2 McLean, 511 260 
 
 Westfall V. Hudson River Fire Ins. Co., 2 Duer, 490, 494. . 217 
 
 Weston V. Hight, 17 Me. 287 124 
 
 Wetherbee v. Green, 22 Mich. 311 66 
 
 Wetherill v. Stillman, 65 Pa. St. 105 262 
 
 Wetmore v. Zabriskie, 29 N. J. Eq. 62 34 
 
 Whatron v. Morris, 1 Dall. 134 254 
 
 Wharton v. Stoughtenburgh, 35 N. J. Eq. 266 212 
 
 Wheaton v. Gates, 18 N. Y. 395 i . 19 
 
XCVIU TABLE OF OASES. 
 
 [References are to pasea.] 
 
 Wheaton v. Peters, 8 Pet. 591 78 
 
 Wheeler v. Wheeler, 11 Vt. 60 267 
 
 Whetstone v. Whetstone, 31 Iowa, 276 263 
 
 Whipple V. Parker. 29 Mich. 370 45 
 
 Whipple V. Stevens, 2 Foster, 219 203 
 
 Whisler V. Roberts, 19 111. 274 280 
 
 White V. Allen, 2 Fish. 440 71 
 
 White V. Bascom, 28 Vt. 2i68 197 
 
 White V. Brooks, 43 N. H. 402 32, 33 
 
 Whitev.Buss, 3 Gush. 448, 450 167 
 
 White T. Casten, 1 Jones L. N. C. 197 130 
 
 White V. Cole, 24 Wend. 116 281 
 
 White V. Dingley, 4 Mass. 433 270 
 
 White V. Foster, 102 Mass. 375 142 
 
 White V. Halght. 16 N. Y. 310 224 
 
 White V. Havens, 2 How. Pr. Rep. 177 222 
 
 White V. Methodist Bpis. Ch., 3 Lans. 477 19 
 
 White V. Miller, 7 Hun, 427, 71 N. Y. 118, 78 N. Y. 393 ... . 191 
 
 White V. Molyneux, 2 Ga. 124 301 
 
 White V. Palmer, 1 McMulI (S. C.) Ch. 115 119 
 
 White V. Philbrick, 5 Grenl. 147 103 
 
 White V. Salisbury, 33 Mo. 150 190 
 
 White V. Tompkins, 52 Pa. St 363 190 
 
 Whitfield V. Cates, 6 Jones Eq., 136 276 
 
 Whitfield V. Whitfield, 40 Miss. 352 119 
 
 Whitley v. Roberts, 1 McClel. & Y. 107 294 
 
 Whitmarsh V. Cutting, 10 Johns. 360 13 
 
 Whitmarsh V. Walker, 1 Met. 313 143 
 
 Whitmore v. Scovell, 3 Edw. Ch. 320 86 
 
 Whitney V. Emmett, 1 Baldw. 303 70,75 
 
 Wiitney V. French, 25 Vt. 663 282 
 
 Whitney v. Lowell, 33 Me. 318 280 
 
 Whitney v. Myers, 1 Duer, 267 302 
 
 Whittaker v. Farmers' Union Ins. Co., 29 Barb. 312 21i 
 
 Wicks V. Ludwig, 9 Cal. 173 260 
 
 Wiggle v. Wiggle, 6 Watts, 522 124 
 
 Wikoffs Appeal, 15 Pa. St. 281 130 
 
 Wilcox V. Hall, 53 Ga. 635 171 
 
TABLE OF CASES. XCIX 
 
 [References are to pages.] 
 
 Wilcox V. Kassick, 2 Mich. 165 262 
 
 Wild V. Williams, 6 M. & W. 490 270 
 
 Wilkins V. Lindo, 7 M. & W. 81 270 
 
 Wilkinson v. Tousley, 16 Minn. 299 211 
 
 Willard v. Tillman, 19 Wend. 358 301 
 
 Willard v. Whitney, 49 Me. 235 263 
 
 Williams v. Bacon, 2 Gray, 387 150 
 
 Williams v. Carpenter, 36 Ala. 9 184 
 
 Williams V. Crary, 5 Cow. 370, 8 Id. 246, 4 Wend. 443.... 234 
 
 Williams v. Howard, 3 Munf. 277 294 
 
 Williams v. Jones, 13 East, 439 204 
 
 Williams v. Robinson, 73 Me. 186 152 
 
 Williams v. Spencer, 4 Johns. 352 290 
 
 Williams v. Storm, 2 Duer, 52 195 
 
 Williams t. The Bank of Mich., 7 Wend. 542 43, 44 
 
 Williams v. Watkins, 3 Pet. 51 32 
 
 Williams v. Western Union Tel. Co., 93 N. Y. 162, 188 ... . 237 
 
 Williamson v. Sammons, 34 Ala. 691 170 
 
 Willings v. Consequa, Pet. C. C. 301 270 
 
 Wilmer v. The Smilax, 2 Pet. Adm. 295 289 
 
 Wilmerding v. Mitchell, 52 N. J. L. 476 276 
 
 Wilmshurst v. Bowker, 2 M. & G. 792 155 
 
 Wilson V. .(Etna Ins. Co., 27 Vt. 99 220 
 
 Wilson V. Brannan, 27 Cal. 258 279, 280, 282 
 
 Wilsonv.Hill, 3 Met. 66 207,214 
 
 Winchester v. Nutter, 52 N. H. 507 211 
 
 Windt v. German Reformed Ch., 4 Sandf. Oh. 471 20 
 
 Wing V. Merchant, 57 Me. 383 118 
 
 Winslow V. Crocker, 17 Me. 29 114 
 
 Winsor v. McLellan, 2 Story, 492 282 
 
 Winter v. Bandell, 30 Ark. 362 163 
 
 Wintermute v. Reddington, 1 Fish. 239 70 
 
 Witherby v. Ellison, 19 Vt. 379 18 
 
 Witherell v. Marine Ins. Co., 49 Me. 200 217 
 
 Withers v. Buckley, 20 How. U. S. Rep. 84 4 
 
 Withers v. Weaver, 10 Penn. St. 391 119 
 
 Wittersheim v. Lady Carlisle, 1 M. & W. 533 200 
 
 WittowskI V. Wasson, 71 N. C. 451 182 
 
C TABLE OP CASES. 
 
 [References are to pages.] 
 
 Wolcott T. Mount, 36 N. J. L. 262 171 
 
 Wolf V. Estes, 7 Ind. 448 119 
 
 Wolfe V. Goulard, 18 How. Pr. 64 92 
 
 Wolf V. Washburn, 6 Cow. 201, 299 
 
 Wood V. Ash, Owen's Rep. 139 62 
 
 Wood V. Dummer, 3 Mason, 308, 322 242, 251 
 
 Wood V. Munn, 5 Bing. 10 295 
 
 Wood V. Pierson, 45 Mich. 313 56 
 
 Woodbury Savings Bank v. Charter Oak Ins. Co., 31 Conn, 
 
 517 219 
 
 Woodcock V. Parker, 1 Gall. 438 69, 70 
 
 Woodruff V. Dobbins, 7 Blackf. 582 266 
 
 Woods V. McGee, 7 Ohio, 467 156 
 
 Woodson V. McClelland, 4 Mo. 495 120 
 
 Woodson V. Wallace, 22 Pa. St. 171 283 
 
 Woodwell V. Keeler, 8 Watts & S. 63 44 
 
 Woodworth v. Rogers, 3 Woodb. & M. 135 75 
 
 Woodworth v. Sherman, 3 Story, 172 73 
 
 Woolam V. Ratcliff, 1 Hem. & M. 259 96 
 
 WooUaston's Case, 4 De Gex & J. 437 244 
 
 Woolsey v. Judd, 4 Duer, 379, 384 85, 86, 87 
 
 Wooton V. Redd, 12 Gratt. (Va.) 196 126 
 
 Word V. Carin, 1 Head, 506 170 
 
 Work V. Merchants', etc., Fire Ins. Co., 11 Cush. 271 .... 215 
 
 Worthen v. Wllmot, 30 Vt. 555 190 
 
 Worthington v. Bearse, 12 Allen, 382 216 
 
 Wright v. BroWn, 67 N. Y. 1 165 
 
 Wrlghtv.Ross, 36 Cal. 414 281 
 
 Wright V. Ward, 65 Cal. 523 38 
 
 Wright V. Weeks, 25 N. Y. 158 152 
 
 Wyer v. Dorchester, etc., 11 Ciish. 51 254 
 
 Wylder v. Crane, 53 111. 490 282, 284 
 
 Wyman v. Am. Powder Co., 62 Mass. 168 241 
 
 Wynkoop T. Wynkoop, 42 Pa. St. 293 21 
 
 z. 
 
 Xenos V. Markham, 2 Law Repts. (H. L.) 296 213 
 
TABLE OF CASES. Ci 
 'fReferences are to paeres.] 
 
 T. 
 
 Yockney v. Hansard, 3 Hare, 620. 622 228 
 
 YostI v. Laughran, 49 Misso. 594 161 
 
 Young V. Bruces, 5 Litt. 324 137 
 
 Young V. Glendenning, 6 Watts (Pa.) 509 119 
 
 Young V. Hall, 4 Ga. 95 163 
 
 Young T. Merton, 27 Md. 114 189 
 
 Young V. Miles, 20 Wis. 615 156 
 
 Young v. Monpoey, 2 Bailey (S. C.) 278 202 
 
 Young Y. Moses, 53 Ga. 628 252 
 
 Young V. Ward, 21 111. 223 114 
 
 Youngv. Young, 80 N. Y. 422, 430 117 
 
 Young T. Young, 7 Am. B. R. 171 269 
 
 z. 
 
 ZaQuey ▼. Famell, 3 Camp. 240 153 
 
 Zarega's Case, Fed. Cas. No. 18204 268 
 
 Zelgler V. Eckhert, 6 Fa. St. 13 235 
 
 Zuver y. Lyons, 40 Iowa, 670 276 
 
THE LAW OF PEESONAL PJROPEETT 
 
 CHAPTEH I. 
 
 INTRODUCTORY.— DEFINITION AND USES OF THE WORD 
 "PROPERTY."— GENERAL CLASSIFICATION& 
 
 S 1. Definition of the term. 
 
 2. Uses of the term. 
 
 3. Real, and personal, property. 
 
 4. Absolute, and qualified, property. 
 6. Limitations of absolute ownership. 
 
 § 1. Definition of the term.— Th e word "property" 
 may be defined briefly as the exclusive right of possessing , 
 e njoying , and jisposin g of^ la nrlg anrl pViat.felg^ The term 
 "exclusive right," however, does not confine the ownership 
 to a single individual, for property may be owned by two 
 or more persons at the same time, jointly, or in common ; * 
 nor does it necessarily imply immediate possession; for 
 there may be an intermediate and temporary rightful pos- 
 session by a third party having a special or qualified prop- 
 erty in the subject of ownership; as in cases of a life in- 
 terest, a mere usufruct, a lease, a bailment, ox a trustee- 
 ship. TTi P! exrluxivp. riffh t in our definition of property, is 
 i hp. uUim nip. prnprip,tarij r ight vested in One Or more ver - 
 sions an owners. 
 
 iSch. Pers. Prop. pp. 4, 5; And. L. Diet "Property;" Bouv. L. 
 Diet. "Property;" 1 Cooley's Black, p. 139, notes 18, 19; Jackson 
 V Housel, 17 Johns. 281, 283; Morrison v. Semple, 6 Binn. Pa. 94. 
 
 2 See infra §§ 26, 27; Bouv. L. Diet "Property," sub. 4. 
 1 
 
2 USES OF TEBM " PROPERTY. " [§§ 2, 3. 
 
 § 2. Uses of the term. — The word " wrovertv " as used 
 in the law, has two general significations; first, to indica te 
 t he right or interest of a person j" m- tn thn gnhiyint. in 
 q uestion, as whether ab solute or qualified; the absolu te 
 rig ht being the ultimate, exclusive proprietary right, con - 
 stit uting ownershi p; and th e qualified property being an 
 interm ediate, limited and temporary interest, or a rightful 
 p ossession.* And, second, in connection with qualifyin g 
 wordsit ^ characterizes the particular s ubject or kind of 
 pro perty in question, in respect of classification, as whether 
 r eal or persona l.* In other words, it is used both to indi- 
 cate tTTpJpnfl nv plagg nf pTpjTPrH^^Ti question, an d the in- 
 ■ter^^f a party therein ; sometimes the one, and sometimes 
 ithe other. 
 
 4 3. Real, and personal, property. — The principal line 
 of distinction between the two classes runs b etween m o' bilit'H 
 a nd immoiility . Real property is that which is immoyable 
 a nd permanent in its character or use . Under the feudal 
 law it was designated by, and embraced in, the terms 
 "lands, tenements and hereditaments." The term real 
 propert y, as now used in contradistinction to personal prop- 
 erty, inclu des land, to gether_wit h perma nent stnicli^rfia 
 upo n and under i ts surface ; and, in }e,ga\ o.nntP^^n■p^at^nn^ 
 land extends upwards usquiz^Jid- Gcelum, a nd downw ards 
 us qutz ad in feros. It will be seen, however, in a subsequent 
 chapter, that certain things personal in their character are, 
 under some circumstances, regarded as part of the realty. 
 
 P ersonal p rn pftrtv is m nvahlp! in its nature, and embraces 
 
 every species of property not possessing the characteristics 
 
 of r eal property, as above d efined." 
 
 » Bouv. L. Diet. "Property," sub. 3; see intra § 4; And. L. Diet 
 •"Absolute Property." 
 
 * See infra § 3. 
 
 • Tiede. on R. Prop. §§ 1, 2; Bouv. L. Diet "Real Property," 
 
§§4, 5.] ABSOLUTE, AND QUALIFIED, PROPERTY. 3 
 
 As personal property constitutes the subject of this treat- 
 ise, its characteristics will be more fully shown in subse- 
 quent chapters. 
 
 § 4. Absolute, and qualified, property. — ^A bsolute pr op- 
 erty consi sts in a fnll nnrl nnmplp te title to, and dominion 
 Q Yer, a thing . Qualified property is a temporary or special 
 interest in a thing, which is liable to be totally extinguished 
 by .^ ^ occurrence of some particular contingency, without 
 *^ mf "^' thPi JTitArTnAHia tfl posHftsRor or p r oprietor . For 
 examples of this class may be mentioned the interest of a 
 person in light; title to animals ferce naturce when cap- 
 tured; the interest of a bailee in goods bailed or pledged; 
 the title of executors and administrators to decedent's es- 
 tate; and title of trustees and guardians to the trust es- 
 tate. And, the legal title to a thing may be in one person 
 s m^ the equifnhle nnferixtf jti qTintb oT, at. on e and the sam e 
 time. ' 
 
 § 5. Limitations of absolute ownership. — Absolute owur 
 ership of property is limited by the necessary conditions of 
 organized society and civil government: 
 
 First. A person is not at liberty to so use his own as to 
 in jure the rights of another. Sic utere tuo ut alienum 
 non Icedas is the legal maxim.'' 
 
 Second. The State, under what is known as t he police 
 power, has authority to control the use of property in the 
 hands of its owner, within certain limits ; and, in some cases, 
 
 "Personal Property;" 1 Sch. Pers. Prop. p. 25; 2 Black. Com. 
 p. 385; 2 Kent, Com. pp. 340, 341 and note. 
 
 oBouv. Jm Diet. "Property," sub. 3; 2 Kent, Com. pp. 347, 348; 
 2 Sch. Pers. Prop. p. 695; Edw. Bail. §§ 36-42, 369-372. 
 
 'Broom's Leg. Max. pp. 275-289; 1 Sch. Pers. Prop. p. 21; 1 
 Cooley's Black, pp. 217-219; Bishop, Non-Cont. Law, §§ 14, 15, 
 412-422. 
 
4 UMITATIONS. [§ 5. 
 
 even to take it from him without his consent and against 
 his will. Solus popuU suprema lex.^ 
 
 Third. The citizen o wes to government allegiance an d 
 support ^in return for protection and benefits received ; and 
 the government has a rightful claim upon so much of his 
 propert^ias. may, he requisitifl for its maintenaacajaxiiLdue 
 administrati on. On this claim rests the authoritv forJ ax- 
 ation.* 
 
 Fourth. The prerogative of e minent domain, is a sover - 
 eign power of the state, by which private property may be 
 taken for public use without the consent of the owner. This 
 power is lodged in the Legislature as the representative of 
 the state, and its exercise conditioned, in this country, upon 
 providing for compensation to the owner.*' 
 
 Fifth. The pro perty of every person is liable" for the s at- 
 isfa ction of all his just debts, except in so far as it may b e 
 exempt by statute. He cannot legally alienate his property 
 by gift, or otherwise dispose of it, in fraud of his creditors. 
 A hona fide purchaser, however, will be protected as having 
 an equity superior to that of a creditor.** The enforce- 
 ment of this limitation is ordinarily effected through the 
 instrumentality of the courts of justice." 
 
 8 Broom's Leg. Max. pp. 2-7; Bishop, Non-Cont. Law, §§ 91-96; 
 Thurlow V. Mass. 5 How. U. S. Rep. 504. 
 
 »1 Sch. Pers. Prop. pp. 22-24; 1 Story, Const. §§ 906-1053, Coo- 
 ley, Const. Law, pp. 54-62; Cooley, Const. Lim. pp. 479-521. 
 
 10 2 Kent, Com. p. 339; Bishop, Cont (2nd Enl. Ed.), § 573; 1 
 Sch. Pers. Prop. pp. 22-23; Bishop, Non-Cont Law, § 119; Const. 
 U. S. Amend'ts Art. V.; Barron V.Baltimore, 7 Pet 243; Withers 
 V. Buckley, 20 How. U. S. Rep. 84; Transportation Co. v. Chicago, 
 99 U. S. Rep. 635, 642; Kohl v. United States, 91 U. S. Rep. 367; 
 Charles River Bridge v. Warren Bridge, 7 Pick. 344, 445. 
 
 11 Bishop, Cont (2nd Eiil. Ed.), §§ 1200-1213; 1 Sch. Pers. 
 Prop. p. 21; 1 Whart Cont § 377. 
 
 12 2 Kent, Com. pp. 340, 341 (note a) ; 2 Black. Com. pp. 16, 17, 
 384, 385-397; 1 Sch. Pers. Prop. p. 25; Tiede. R. Prop. § 1. 
 
§§ 6, 7.] CHABACTEEISTICS. 5 
 
 CHAPTER II. 
 
 CHARACTERISTICS OP PERSONAL, PROPB5RTY. 
 
 § 6. Mobility. 
 
 7. Change from personal to real, and vice versa. 
 
 8. Duration of the time of enjoyment 
 
 § 6. Mobility. — ^Th e leading and essential characteris- 
 tic of personal property, and that which distinguishes it 
 from real property, ig_ jnobility . Under this distinction it 
 is quite easy to classify all subjects of property that are 
 tangibl e ; but without further instruction the student might 
 find difiSculty in the case of intangible property, of which 
 there is a large class, such as debts, obligations, and the 
 li ke, denominated choses in action . Thesc ^in contemp la- 
 tio n of la w, a re mova ble. They are supposed to attend the 
 person of the owner, are subject to the laws of his domicile 
 in case of intestacy and insolvency, and actions concerning 
 them are generally transitory. 
 
 § 7. Chajige from personal to real, and vice versa. — 
 Through the operations of nature, or the act of man, things 
 immovable in their character become movable, so as to 
 change them from real, to personal, property, and vice 
 versa. Examples of real, changed to personal, property: 
 A tree while growing on the land is real property, but when 
 felled and cut into timber or wood it becomes personal; 
 minerals while in the earth are part of the realty, but when 
 quarried they become personal property ; and growing fruit 
 trees are real property, but their severed fruit is personal. 
 Examples of personal, changed into real, property : Build- 
 ing materials, which are personal property, when wrought 
 into a house become real ; a young tree planted temporarily 
 in a nursery is personal property, but when sold and trans- 
 
6 DUBATiON OF ENJOYMENT. [§ 8. 
 
 planted it is converted into real property. Ice when taken 
 from the water for purposes of merchandise becomes a 
 chattel or chose in possession.^ 
 
 § 8. Duration of the time of enjoyment. — ^^nt the term 
 personal property, at common law, includes more than is 
 characterized by the word movable. Duration of the time 
 of enjoyment i s. in some cases, a determining factor in the 
 classification, placing in the general division of personal 
 property things immovable in their nature. 
 
 I n the English law, any interest in the realty less than 
 a life estate was classed as personal property. This was due 
 to the fact that under the feudal system personal property 
 was regarded as of small importance compared with real 
 estate; an interest in land limited in duration to a deter- 
 minate period! did not rise to the dignity of a freehold, 
 and was consi^ed to the inferior rank of personal prop- 
 erty. 
 
 In the progress of events, t&e advance of civilization, and 
 the expansion of commerce, there has been a marked Chalnge 
 in the comparative importance of the two classes of prop- 
 erty, especially in the United States ; yet the old classifica- 
 tion ranains unchanged at common law. Hence it is that a 
 lif e estate in land " "t"! +PTiPTnPTif^g is real property, while an 
 est ate for years ranks as personal property, although th e 
 years of the latter may far outnumber thejmrs_af_the 
 fo rmer . Pe rsonal property, then, includes two elements . 
 m obiUtv and duration of the time of enjoyment.' 
 
 iSch. Pers. Prop. pp. 26, 27; Crouch v. Smitli, 1 Md. Ch. Rep. 
 401; Golden v. Glock, 57 Wis. 118; Lewis v. Rosier, 16 West Va. 
 Rep. 333; Higgins v. Kusterer, 41 Mich. 318. 
 
 2 Pom. Mun. Law. §§ 376, 377; 2 Black. Com. pp. 385-388; 2 
 Kent, Com. pp. 341-343; 4 Kent, Com. pp. 93-95; 1 Sch. Pera. 
 Prop. pp. 27, 28; Williams, Pers. Prop. pp. 1, 2, and note 1. 
 
§ 9.] FIXTUHBS. 7 
 
 CHAPITER m. 
 mREOULAH SPECIES OP PROPESRTT. 
 
 FiXTUBES. 
 
 8 9. What are fixtures. 
 
 10. Rules for guidance. 
 
 11. Between what parties. 
 
 12. Time of removal. 
 
 EMBUafENTB. 
 
 13. What are emblements. 
 
 14. What products the tenant may remoT«. 
 16. Who, and when, entitled to emblements. 
 
 16. Incidents. 
 
 Heib-looms. 
 
 17. Character, and law of. defiiied. 
 
 Manttkb. 
 
 18. When real, and when personal, property. 
 
 Chubch FuBinruBE. 
 
 19. Law of this species of property. 
 
 MOETDAEY PEOPEatTT. 
 
 20. Kinds, legal rules, and burial rights. 
 
 There are certain species of properly which, for reasons 
 appearing in this chapter, are irregular in respect of classi- 
 fication, and require separate notice. 
 
 1. Fixtures. 
 
 9. What are fixtures. — T hey are things which, thongh 
 pers onal in their nature, may become real property whe n 
 annex ed to, or used in connection with, the freehol d. They 
 are ambulatory, being sometimes on one side of the diVid- 
 
8 FIXTUBES. [§ 10. 
 
 ing line between real and personal property, and again on 
 the other. On which side of the line the law will place a 
 thing in a given case may depend upon one or more of 
 these conditions: 1, the permanency of the annexation ; 
 2, the purpose and use of the thing annexed; 3, t he inten - 
 tio n of the parties; and, 4, ot her circumstances being th e 
 sam e, the turnin g point m ay be the parties concerned, o r. 
 in other words, the parties b etween whom the question i s 
 raised .^ 
 
 § 10. Eules for guidance. — The subject of fixtures has 
 caused considerable perplexity in the administration of the 
 law; and it is impossible, in a concise discussion, to relieve 
 it from all practical difficulties; but a few rules, deduced 
 from the authorities, may be helpful to the student and 
 practitioner. 
 
 1. Annexation to the soil, either actual or constructive . 
 i s requisite to convert a thing nersonal in its nature into 
 a fixture . A ctual annexation implies physical attachmen t 
 to the freehold ; cons tructive annexation is that which ex- 
 ists in contem platioTi of law, where there is no actual phy si- 
 c al attachment. ' To the latter kind belong things adapted 
 for use in connection with the realty; and things essential 
 to the beneficial enjoyment of the premises; as deeds and 
 other muniments of title, keys, fencing materials, family 
 pictures, and other things of like character and use. 
 
 iTiede, R. Prop. §§ 3-7; 1 Sch. Pers. Prop. pp. 135-160; And. L. 
 Diet. "Fixtures;" Bouv. L. Diet. "Fixtures;" 2 Kent, Com. pp. 
 343-347; ■Williams, Pars. Prop. pp. 343-347, and notes; Wadleigh 
 T. Janvrln, 41 N. H. 503; Prescott v. Wells, 3 Nev. 82; State v. 
 Bonham, 18 Ind. 231; Sampson v. Graham, 96 Pa. St 405; Teaff 
 V. Hewitt, 1 Ohio N. S. 511. 
 
 ITiede. R, Prop. § 3; 1 Sch. Pers. Prop. pp. 137-139; Bouv. L. 
 Diet. "Fixtures," sub. 2; Williams, Pers. Prop. p. 14, n. 1; And. 
 L. Diet. "Fixtures." 
 
§ 10.] FIXTUEBS. 9 
 
 2. As a general rule, JJi ings actually annexed to the free- 
 ho ld become part of the realty ; and t hev so r eTnain when 
 their re moval cannot be effected without serioua injury to 
 t he freehol d.^ But, when their removal can be effected 
 without such injury, there are cases in which annexation 
 does not convert personal into real property. For example, 
 where the thing has been annexed for the purpose of carry- 
 ing on a trade ; where it is manifest that it is the intention, 
 to use the fixture in some employment distinct from that of 
 the occupant of the real estate; and, generally, when it is 
 clearly the intention of the parties concerned that the thing 
 annexed shall not become a part of the realty.* 
 
 3. In some cases, wh ere the attachment to the freehol d 
 is slight, or whe re thin gs permanently used in connec tion 
 with th e land a re tem porarily detached, they may be r e- 
 garded as fixtur es passing witJi the lan d. For example, 
 hop-poles stacked in piles ; rolls in an iron min lying loose 
 in the mill ; and machinery fastened by screws to the floor. 
 Here, intention may become an important factor in det er- 
 mining the class of the thing in ques tion. 
 
 4. It should be remembered th at the common law on this 
 sub j e ct is so meti mes modified by statutory enactments ; an d 
 these must be examined in all, cases to which they apply. 
 For example, in New York the rule as between the heir and 
 the executor is fixed by statute. 
 
 » Citations supra, under § 9; Tayl. Land, and Ten. § 550; Bout. 
 I.. Diet. "Fixtures," sub. 3; 1 Sch. Pers. Prop. p. 140; And. L. 
 Diet. "Fixtures." 
 
 *l'Sch. Pers. Prop. p. 141, and citations supra, under § 9; Pot- 
 ter v. Cromwell, 40 N. Y. 287; McRea v. Central Nat. Bank of 
 Troy, 66 N. Y. 489; Potts v. New Jersey Arms, etc., Co., 17 N. J. 
 Eq. 395; Hill v. Wentworth. 28 Vt. 428; Henkle v. Dillon, 15 Ore. 
 610; Smith v. Waggoner, 50 Wis. 155; McClintock v. Graham, 3 
 MeCord (S. C), 553; Ottoman Woolen Mills Co. v. Hawley, 44 
 Iowa, 57; Bishop v. Bishop, 11 N. Y. 123. 
 
10 Pts^EES. [§§ 11, 12. 
 
 ^ 11. Between what parties,— Tte question whether in 
 a paKiciilar case a thing i!s, or is not, a fixture, and also' the 
 right of removing the same, may depend for solution upon 
 the parties interested. Such parties are, 1, th e heir and the 
 execn|pf;2, d eyisefes an d t he execiit or; 3, the executo r 
 of the tenant for life, and t he remainder-man or rever- 
 s ioner ; 4, v endor and ven^^ e : 5, m ortgagor and mortpfa p[ee : 
 
 6, d ehtor an d nref|it.nr an d tJie heir or vendee and t he 
 vt'idow , in respect to premises set off to her for dower : an d. 
 
 7, la ndlord and ten ant. In the first, second, fourth, fifth, 
 and Sixth of these classes the general rule is that things 
 firmly annexed to the freehold pass with it respectively to 
 the heii^, devisee, vendee, mortgagee, heir or vendee and 
 the widow; aind cannot be removed by the other parties, 
 while in the third and seventh classes the right of removal 
 belong respectively to tile executor of the tenant for life, 
 and the tenant. Especially is tihe rule against removal re- 
 laxed in favor of tenants. As between landlord and ten - 
 ant fli'e prevailiTig doctrine now is, that the latter may re - 
 m ove all fixtures annexed bv him foT traVlp , a g rrinnltnrR nr 
 
 do mestic use and convenieflce. when such rem nvnl will nnt 
 rpRTJTt. jn Rprinm^-and permatient injur y to the freehold ." 
 
 § 12, Time of removal. — The right of removing fixtures 
 may be affected by the time of its attempted exercise. 
 
 1. A tenant for years mav remove them at anv time be - 
 fo re he yields possession, although he mav be holding over . 
 "When the landlord has resumed possession the fixtures be- 
 come his property, and the tenant's right of removal is gone. 
 
 ' Citations supra, under § 9; Despatcli Line of Packets v. Bel- 
 lamy Mf'g Co., 12 N. H. 205; Dudley v. Hurst, 67 Md. 44; Schei- 
 fele V. Schmitz, 42 N. J. Eq. 700; Maguire v. Park, 140 Mass. 21; 
 Pulllngton V. Goodwin, 57 Vt 641; Ombony t. Jones, 19 N. Y. 234; 
 Holmes v. Tremper, 20 Johns. 29. 
 
§ 12.] FIXTUKES. 11 
 
 2. I ft on the expiration of jus form, the tenant accepts a 
 new lease^ containing no reservat ion of the right of remova l, 
 he t hereby loses his right in^the fixtures. But where there 
 has been no acceptance of the new lease, the tenant simply 
 continuing in possessi on after the expiration of his term^ 
 he may rem nvfi t.TiP! fiTrtnrpa 
 
 3. T enants for life or at will, having uncertain interest s 
 in t he land, are permitted to remove their fixtures within a 
 reaso nable time, after the termination of. their tenancy 
 without their own fault. 
 
 4. If the_tenn be f(}rfei±ed by_any act of t he lessee, his 
 assignee or sub-lessee has ajreagonable time after such ter- 
 minat ion of the leas e in which to remQveJhe-fixtures.' On 
 the part of the landlord, an action to recover the chattels 
 and for damages for their conversion may be maintained. 
 It is held, however, in certain cases, that so long as the fix- 
 tures constitute a part of the realty, such action cannot be 
 maintained. But after severance, the owner of the prop- 
 erty may maintain an action in replevin or trover, as in 
 other cases of personal property. The tenant's right to 
 bring such action rests in the fact that the fixtures were al- 
 ways chattels and removable by him while in possession of 
 the property.* 
 
 • Citations supra, under §§ 9 and 10; Meigs' appeal, 62 Pa. St. 
 28; Richard v. Borden, 42 Miss. 71; Bares v. Bstes, 10 Kan. 314; 
 Holbrook v. Chamberlin, 116 Mass. 155; Blanche v. Rogers, 26 
 N. J. Eq. 563; Hutchins v. Masterson, 46 Tex. 551; Hederich v. 
 Smith, 103 Ind. 203; Smith v. Park, 31 Minn. 70; Marks v. Ryan, 
 63 Cal. 107; Mclvor v. Estabrook, 134 Mass. 550; Loughran v. 
 Ross, 45 N. T. 792; Darrah v. Baird, 101 Pa. St. 265; Stansfleld 
 T. Portsmouth, 4 C. B. (N. S.) 119, Talbot v. Conger, 151 N. Y. 
 119; Lewis v. Ocean N. & P. Co., 125 N. Y. 350. 
 
 TRaddin v. Arnold, 116 Mass. 270; Guthrie v. Jones, 108 Mass. 
 191; Thorn v. Sutherland, 123 N. Y. 236. 
 
.12 EMBLEMENTS. [§§ 13, 14. 
 
 2. Emblements. 
 
 § 13. What are emblements. — The term is derived from 
 the Norman French word emhlear, meaning to sow ; and, in 
 legal terminology, emblements are the annual products of 
 the soil, to which the tena nt is entitled on the t erminatio n 
 o f his estate, as the result of his own righ tful care and la- 
 bor. While outgrowths of the soil, and hence in their na- 
 ture part of the realty, emblements are treated as personal 
 property. The doctrine of emblements is founded upon the 
 just principle that a tenant, who cultivates and sows the 
 land with a reasonable expectation of reaping the harvest, 
 ought to be permitted to enjoy the fruits of his industry.* 
 
 § 14. What products the tenant may remove. — They 
 are t.Tipi annual, p rndu cts of the sowing nr p TaritrnfT arid cul- 
 tivat ion o f flie ten ant, the outco gag_i}fj[k_own^arg_and^la- 
 bor. They are characterized by the term fructus indus- 
 triales, in contradistinction to fructus naturales. As a rule, 
 only such products of the soil as are of annual cultivation 
 are regarded as emblements; but to this rule hops are an 
 exception, and for the reason that, although tjie product of 
 perennial roots, they require annual culture. Cereals and 
 vegetables generally are included; while products of sponta- 
 neous growth, perennial in their nature and not requiring 
 annual cultivation, such as grasses and trees, are excluded.* 
 
 But, as to what constitutes emblements the common law 
 
 8 Web. Diet. TJnab'gd, "Emblement;" And. Li. Diet. "Emble- 
 ments;" Bouv. L. Diet. "Emblements;" Tiede. R. Prop. §§ 8, 70; 
 1 Washb. R. Prop. pp. 104, 132-137; 1 Sch. Pers. Prop. pp. 126- 
 128; Williams, Pers. Prop. (4 Ed.), pp. 17-19, and Am. notes; 
 4 Kent, Com. p. 73; Tayl. Land, and Ten. § 534; Cooley's Bl. B. 
 II, p. 123, and notes 3, 4. 
 
 » Citations supra, under § 13; Benj. Sales, §§ 120-128. 
 
§ 15.] EMBLEMENTS. 13 
 
 may be, and sometimes is, varied by local customs, and by 
 statutory enactments. The scope of this work will not per- 
 mit a reference to such changes. They are not numerous, 
 and the careful student and practitioner will here, as in all 
 common-law cases, examine the statutes and adjudications 
 of his own State. 
 
 § 15. Who, and when, entitled to emblements. — 1. To 
 entitle one to the crops, they must have been sown and 
 planted J iy himself. _a nd not by another. Cultrgation and 
 care of the crops will not alone confer upon the claimant 
 the right of removal, where the sowing or planting was done 
 by another. In such case one may not reap where another 
 has sown.^" 
 
 2. The r ifrht belo Tifrg mi^y to a tenant whose estntfi was nf 
 unce rtain dura tion. Included in this class are tenants for 
 life, and their representatives. Tenan ts at will, also, hav e 
 th e righ t; but not tenants for years, or tenants at suffer- 
 ance. The distinction between certain and uncertain ten- 
 ancies is based upon the doctrine that it is unwise for the 
 tenant to sow with fuU knowledge, or a reasonable proba- 
 bility, that he cannot reap, by reason of the termination of 
 his tenancy before the time of harvest.*^ 
 
 3. As the reason of the rule vdoes not apply to a case 
 where the estate of the tenant has terminated unexpectedl y, 
 
 loTiede. R. Prop. § 70; 1 Sch. Pers. Prop. p. 128; 1 Washb. R. 
 Prop. p. 103; Grantham v. Hawley, Hob. 132; Gee v. Young, 
 Hayw. 17; Price v. Pickett, 21 Ala. 741; Thompson v. Thompson, 
 6 Munf. 514. 
 
 "Tiede. R. Prop. §§ 8, 70, 71; Tayl. Land, and Ten. § 534; 2 
 Bl. Com. pp. 145, 146, 122-124; 4 Kent, Com. p. 110; Co. Litt. 56; 
 Chelsfey v. Welch, 37 Me. 106; Klttredge v. Woods, 3 N. H, 503; 
 Whitmarsh v. Cutting, 10 Johns. 360; Graves v. Weld, 5 B. & 
 Ad. 105; Kingsbury v. Collins, 4 Blngh. 209; Mason v. Moyers, 2 
 Rob. (Va.) 606; Morgan V. Morgan, 65 Ga. 495. 
 
14 EMBLEMENTS. [§ 15. 
 
 and witho ut his f ault, the rule does not apply. But if the 
 estate terminates th rough the fault of the tenant, he loses 
 his right to emblements.^^ 
 
 4. As between the executor of the tenant in fee and th e 
 heir, the former is entitled to the crops if they are i^ipe for 
 harvest. And the right to emblements extends to assignees, 
 and sfub-lessees, except when the tenant is restricted from 
 aliening the land.^' 
 
 5. When the owner sows the land, and then conveys i t 
 away, the title to the^rop s passes t ot he vendee by the co n- 
 veyance; and the vendor's executors and administrators 
 have no interest in either land or emblements. So, also, 
 emblements pass by devise of the land, and by the convey- 
 ance of a reversion subject to an existing particular estate.^* 
 
 6. A mortgasfee. as against the mortgagor and his grant- 
 ees, ha s the p aramnn nt right to the emblement s.^' But a 
 foreclosure after the crops are severed carries no interest 
 in them to the mortgagee or purchaser.^' It is held by some 
 authorities that, if the purchaser under a foreclosure sale 
 permit the mortgagor, or one claiming under him, to retain 
 possession and plant crops, the latter will be entitled to 
 
 12 1 Sch. Pers. Prop. pp. 127-129; 2 Kent, Com. p. 73; Tayl. 
 Land, and Ten. § 535; Debow v. Colfax, 5 Halst 411; Reeder v. 
 Sager, 70 Id. 180. 
 
 13 Tlede. R. Prop. § 71; Penhallow t. Dwight, 7 Mass. 34; Kings- 
 ley V. Holbrook, 45 N. H. 319; Howe v. Batchelder, 49 N. H. 
 319; Pattison's Appeal, 61 Pa. St. 29; Doe v. Mace, 7 Black. 2; 
 Tobey v. Reed, 9 Conn. 216; Cooper v. Davis, 15 Conn. 556; Mc- 
 Call V. Lenox, 9 Serg. & R. 302; Allan v. Carpenter, 15 Micli. 
 88; Jones v. Tbomas, 8 Blackf. 428. 
 
 1*1 Sch. Pars. Prop. p. 130; 1 Washb. R. Prop. p. 104; 1 Will- 
 iams, Ex'rs, p. 674; Foote v. Colvin, 3 Johns. 216; Burnside v. 
 Weightman, 9 Watts, 46; Cooper v. Woolfitt, 2 Hurl. & N. 122. 
 
 "Tayl. and Land. Ten. § 537; Tiede. R. Prop. § 71; Lane v. 
 King, 8 Wend. 584; 1 Sch. Pers. Prop. p. 133; 1 Washb. R. Prop. 
 p. 106; Howell v. Schenck, 4 Gabe, 89. 
 
§ 16.] EMBOIMENTS. 15 
 
 them.*' But, on this point, there does not seem to be entire 
 
 unanimity of judicial opinion.** 
 
 7. The doctrine of emblements has no application to the 
 
 public lands of the United States.** 
 * 
 
 § 16. Incidents. — 1. As a rule, the tenant or his repre- 
 sentative, when entitled- to emblements, has a right to enter 
 upon the land after the termination of the tenancy, for the 
 purpose of taking necessary care of the growing crop, and 
 harvesting and removing it when ripe. But this right is 
 limited to what is reasonably requisite for the purposes, 
 and must not be abused.^" 
 
 2. An agreement for a transfer of the property in some- 
 thing that is attached to the soil, as growing crops, or trees, 
 but which is to be severed from the soil before delivery to 
 the purchaser, is a sale o f fip.rsfmnl pmpp.rtij.^'^ 
 
 3. Growin g crops of the species fructus indusf,r i/i1.p.s are 
 subject t o levy ar rl ""^^ ^y o-g-pmiti"Ti as personal property . 
 
 22 
 
 16 1 Sch. Pers. Prop. p. 133; Buckout v. Swift, 27 Cal. 438; 
 Codington v. Jonhnstone, 1 Beav. 520. 
 
 IT Doe V. Mace, 7 Black. 2; Tobey v. Reed, 9 Conn. 216; Cooper 
 V. Davis, 15 Conn. 556; McCall v. Lenox, 9 Serg. & R. 302; Jones 
 V. Thomas, 8 Blackf. 428. 
 
 18 Mayo T. Fletcher, 14 Pick. 525; Lynde v. Rowe, 12 Allen, 
 101; Lane v. King, 8 Wend. 584. 
 
 19 Rogers v. Williams, 5 Mo. 335; Rasor v. Quails, 4 Blackf. 
 286. 
 
 zoTiede. R. Prop. § 70; 1 Sch. Pers. Prop. p. 131; 1 Washb. R. 
 Prop. pp. 105, 136, 137; 1 Williams, Ex'rs (6 Ed.), p. 679; Co. 
 Litt. 56o; Handson v. Porter, 13 Conn. 59; Forsythe v. Price, 8 
 Watts, 282; Humphries v. Humphries, 3 Ired. 362. 
 
 siBenj. on Sales (Ed. 1888), § 118, and Am. Notes to §§ 111- 
 133. 
 
 22 Smith's Sherf. and Cons. pp. 323, 324; Caldwell v. Fifield, 24 
 N. J. L. 150; Parham v. Thompson, 2 J. J. Marsh. (Ky.) 206; 
 Craddock v. Riddlesbarger, 2 Dana (Ky.), 206; Penhallow v. 
 Dwight, 7 Mass. 34; Hartwell v. Bissell, 17 Johns. 128; Hare v. 
 
16 HEm-LOOMS. [§ 17. 
 
 3. Heir-looms. 
 
 § 17. (Jharacter and law of, defined. — ^Law writers and 
 philologists do not agree as to the etymology of the word 
 heir-loom. By some it is thought to be composed of "heir" 
 and "loom," the latter word originally meaning a loom to 
 weave in, which descended to the heir; and that the com- 
 posite, by use and accommodation,' has grown to embrace 
 many other things. Others regard the termination loom as 
 of Saxon origin, in which language it signified a limi or 
 member, giving to heir-loom the signification of a limb or 
 member of the inheritance. Others, stiU, derive loom from 
 the Saxon "loma," or "geloma," which signifies household 
 stuff, and this with the English word heir makes heir-loom, 
 meaning such utensils and other things as go to the heir.^' 
 
 The etymology, however, is of very little practical im- 
 portance. He ir-looms are a species of proTjertv. perso nal 
 in their nature, which, by force of special custmn. or b e- 
 cau se they are essential to the completeness and full em'o v- 
 ment of th e freehold, are treated as real property, and d e- 
 scend to the hei rs with the inherita nce.'* 
 
 In respect of usefulness to the enjoyment of the freehold, 
 heir-looms rest upon the same basis of reason as the class of 
 fixtures which are not physically annexed to the soil; and 
 the fact that the same things are, by some text-writers, as- 
 signed to both kinds of property indiscriminately, and with- 
 out explanation, tends to confusion in the minds of students. 
 
 Pearson, 4 Ired. (N. C.) L. 76; Shannon v. Jones, Id. 206; Sals- 
 bury V. Parsons, 43 Hun, 12; Favorite v. Deardoff, 84 Ind. 555. 
 
 23B0UV. L. Diet. "Heir-loom;" And. L. Diet. "Heir-loom;" 
 Webster's Diet, (unab'gd), "Heir-loom;" 1 Sch. Pers. Prop. p. 
 117; 2 Black. Com. p. 428. 
 
 24Cooley's Bl. B. II, pp. 427-429, n. 2; Williams, Pers. Prop. 
 pp. 13, 14; 1 Sch. Pers. Prop., pp. 117-122; Co. Litt. 186. 
 
§ 18.] MANDHK. 17 
 
 As examples of heir-looms mentioned in text-books are, 
 among other things, ancient jewels of the British crown; 
 the coat of arms of an ancestor hung in the church, and his 
 sword and insignia of rank; ancient portraits and family 
 pictures in a house ; conies in a warren, and doves in a dove- 
 cote; fish in an artificial pond; deeds and other muniments 
 of title, together with the chest or box in which they have 
 usually been kept; and the keys of a house. 
 
 It will be noticed that some of these things are also 
 classed with fixtures by text-writers. They are classed with 
 heir-looms for the same reason that they are treated as fix- 
 tures, namely, on account of their special relation and im- 
 portance to the free-hold; while those not placed in both 
 classes are regarded as heir-looms in obedience to special 
 custom. Among these are some things not essential to the 
 fuU enjoyment of the freehold.^" 
 
 It may be noticed in passing th at heir-looms do not pa ss 
 by rlp-gp^ "^ hpqnpgt oopoTQ+p tvnm fhp freehold; and this 
 for the reason that a will does not take effect till after the 
 death of testator; whereas the realty, including everything 
 that goes with the land, passes to the heir simultaneously 
 with the passing of the breath from the body of decedent, 
 and vests instantaneously in the heir, and thus takes prece- 
 dence of the devise or bequest.^' 
 
 4. Manure. 
 
 § 18. When real, and when personal, property.— -As a 
 
 general rule, in t his country, manure made upon the farm 
 by consumption o f its products is real proper ty. And, in 
 the interest of good husbandry, which requires that manure 
 
 2e See citations supra, under § 17. 
 
 28 1 Sch. Pers. Prop. p. 118; 2 Black. Com. p. 429; Co. Utt 
 1856; 1 Williams, Ex'rs (6 Eng. Ed.), 681. 
 
 2 
 
18 CHUECH FURNITUEE. [§ 19. 
 
 made from the products of the land shall be used to renew 
 and enrich the soil, the rule has been established that, when 
 a farm is leased for agricultural purposes, the manure made 
 upon it the last year of the term shall be left by the out- 
 going tenant. Local or neighborhood custom may, however, 
 affect the question in some cases; but with no particular 
 agreement in such leases in regard to the manure, it belongs 
 to the farm, and not to the tenant. He has no right to re- 
 move it, or dispose of it to others, so that it shall not be 
 used on the farm. But, if the manure be made from prod- 
 ucts purchased elsewhere and brought to the land by the 
 tenant, as in case of a livery stable, it is personal property, 
 and belongs to the tenant with the right of removal ; and is 
 subject to all the incidents of personal property.*^ 
 
 It is held in one case that, manure left in the street be- 
 longs originally to the owners of the animals that dropped 
 it, but is to be regarded as abandoned property. Being 
 abandoned property, the first taker has a right to appropri- 
 ate it ; and after one has gathered it into heaps he must be 
 regarded as entitled to it, against any person having no 
 title, and must be allowed a reasonable time to take it away. 
 It cannot be regarded as real estate.^' 
 
 5. Church Furniture. 
 
 § 19. Law of this species of property, — As a general 
 rule, both in England and in this country, pews are re- 
 
 zTTiede. R. Prop. § 2; Tayl. Land, and Ten. § 541; Bouv. L. 
 Diet. "Manure;" Goodrich v. Jones, 2 Hill, 142; Parsons v. Camp, 
 11 Conn. 525; Perry v. Carr, 44 N. H. 122; Fay v. Muzzy, 13 Gray, 
 53; Witherby v. Ellison, 19 Vt. 379; Middlebrook v. Corwin, 15 
 Wend. 169; Daniels v. Pond, 1 Pick. 371; Lassell v. Reed, 6 
 Greenl. 222; Lewis v. Jones, 5 Harris, 226; Snow v. Pefkins, 60 
 N. H. 493, 49 Am. Rep. 333; Plumer v. Plumer, 30 N. H. 558; And. 
 L. Diet. "Manure." 
 
 28 Halsen v. Lockwood, 37 Conn. 500. 
 
§ 19.] CHURCH PROPERTY, 19 
 
 garded as part of the realty. But in some of our S tates 
 they ar e made personal property bv statute.' " The pew- 
 holder has, as a rule, the exclusive right to occupy his pew ; 
 and he may maintain an action of trespass against any one 
 who, without lawful authority, disturbs him in his seat.'* 
 But, as against the society or corporation, the interest of the 
 pew-holder in his pew is not absolute, but qualified and con- 
 ditional. It is a usufruct merely, consisting in the right of 
 occupancy upon occasions of public worship.'* The right 
 of occupancy must yield to circumstances of necessity or 
 expediency, growing out of the rights in common of the 
 society; and if the trustees, or other authorized officials, 
 make such changes in the edifice as the necessities or inter- 
 ests of the society demand, and thereby destroy the owner's 
 pew, he must be content with adequate compensation.'^ 
 But, it would seem, that, should the church edifice become 
 useless by dilapidation or other cause, and have to be re- 
 
 29Cooley's Bl. B. II, p. 429, n. 2; 1 Washb. R. Prop. p. 9; 2 
 Potter, Corp. § 603; Bouv. L. Diet. "Real Property," sub. 6, and 
 "Pews;" 1 Sch. Pers. Prop. pp. 158, 159; Baptist Ch. v. Bigelow, 
 16 Wend. 28; Viele v. Osgood, 8 Barb. 130; St. Paul's Ch. v. Ford, 
 34 Barb. 16; Bates v. Soarrell, 10 Mass. 332; Hodges v. Green, 28 
 Vt 358; And. L. Diet "Church," "Pew." 
 
 80 Gray v. Baker, 17 Mass. 435; Gorton v. Hadsell, 9 Gush. 508; 
 Shaw V. Beveridge, 3 Hill, 26; O'Hear v. Goesbriand, 33 Vt. 593, 
 and citations last supra. 
 
 31 Wheaton v. Gates, 18 N. Y. 395; Cooper v. Presb. Ch., 32 Barb. 
 222; White v. Methodist Epis. Ch., 3 Lans. 477; Abemethy v. Ch. 
 of the Puritans, 3 Daly, 1; Howe v. Stevens, 47 Vt. 262; Sohier v. 
 Trinity Ch., 109 Mass. 1; Union Meeting House t. Rowell, 66 Me. 
 400; Gay v. Baker, 17 Mass. 435; Daniel v. Wood, 1 Pick. 102; 
 Kimball v. Rowley, 24 Pick. 347; Presb. Ch. v. Andrus, 1 Zabr. 
 325; Kincaid's Appeal, 66 Pa. St. 411; Ex parte Brick Presb. Ch., 
 3 Edw. Ch. 155. 
 
 32Wentworth v. First Parish, 3 Pick. 344; Cooper v. Presb. 
 Ch., 32 Barb. 222; Heeney v. St. Peter's Ch., 2 Edw. Ch. 608; Fas- 
 sett V. Boylston, 19 Pick. 361; Jones v. Towne, 58 N. H. 462. 
 
20 MORTUABT PBOPEETT. [§ 20. 
 
 built, the right of the pew-holder to his pew, aad to com- 
 pensation as well, would be gone.'' 
 
 Bells, organs, furnaces, stoves and pipes, may, by their 
 use or placing, become real property oi* fixtures.** 
 
 6. Mortuary Property, 
 
 § 20. Einds, legal rules, and burial rights. — The grant 
 of a burial lot in a churchyard, or public cemetery, though 
 in terms a conveyance of the fee, is generally, an_easement 
 merely. It will be protected from disturbance, and the 
 rights of the owner for burial purposes secured to him, 
 while the place continues to be used as a burial ground, but 
 the grant of a burial lot in a church-yard will not empower 
 the grantee to prevent a sale of the church property; and 
 in all cases his right must yield to public necessity.'" 
 
 Vaults and monuments erected upon a lot in a public 
 cemetery, and decorations of the grave, are the personal 
 property of the holder of the lot, and he may remove the 
 same at his pleasure." 
 
 While a corpse, in the strict sense of the common law is 
 not the subject of property, there is in it a quasi property 
 which confers upon the relatives of the deceased the rights 
 
 S3 Voorhes v. Presb. Ch., 17 Barb. 103; Howard v. First Parish, 
 7 Pick. 138; Van Houten v. Reformed Dutch Ch., 2 Green. (N. J.) 
 126; Kellogg v. Dickinson, 18 Vt. 266; Gorton v. Hadsell, 9 Gush. 
 508. 
 
 3*1 Sch. Pars. Prop. p. 159; Congregational Society v. Fleming, 
 11 Iowa, 533; Rogers v. Crow, 40 Miss. 91. 
 
 35 Richardson v. Dutch Ch., 32 Barb. 42; Ex parte Reformed 
 Presb. Ch., 7 How. Pr. R. 476; Windt v. German Reformed Ch., 4 
 Sandf. Ch. 471; Page v. Symonds, 63 N. H. 17; Buffalo City Cem- 
 etery V. Buffalo, 46 N. Y. 503. 
 
 »«Patridge v. First, etc., Ch., 39 Md. 631; Kincald's Appeal, 66 
 Pa. St. 411; Snyder v. Snyder, 60 How. Pr. R. 368. 
 
§ 20.] MOBTUABT PBOPEBTT. 21 
 
 of custody and control, which the courts will protect. The 
 person having charge of the body holds it as a sacred trust 
 for the benefit of all who may, from family ties or friend- 
 ship, have an interest in it. This trust a court of equity 
 will regulate and enforce.'^ 
 
 In the absence of any testamentary directions on the part 
 of the deceased, the right, and place, of burial belong exclu- 
 sively to the next of kin.'* If, by the term "next of kin," 
 as thus used, husband and wife are to be excluded, it may 
 well be doubted whether there should not be a qualification 
 of the broadly stated doctrine in their favor." In case of 
 disagreement among relatives in regard to the burial, the 
 court will determine the matter upon equitable grounds.** 
 
 S7 Griffith V. Charlotte, etc., R. R. Co., 23 S. C. 25, 55 Am. Rep. 
 1; Guthrie v. Weaver, 1 Mo. App. 136; Pierce v. Swan Pt. Ceme- 
 tery, etc., 10 R. I. 227; Snyder v. Snyder, supra; Bogert v. Indian- 
 apolis, 13 Ind. 134. 
 
 38 Law of "Burial." 4 Bradf. Surr. R. 503-532; And. L. Diet. 
 "Burial;" Tyler's Ecc. Law, § 971; Moak's Eng. Rep. vol. 12, p. 
 656; Wynkoop v. Wynkoop, 42 Pa. St 293; Rosseau v. City of 
 Troy, 49 How. Pr. R. 492. 
 
 39 Johnston v. Marlnus, 18 Abb. N. C. 72, and Appendix to 
 same, p. 75; Secor v. Secor, 18 Abb. N. C. 78 n.; Snyder v. Sny- 
 der, supra. 
 
 40 Weld V. Walker, 130 Mass. 422, 39 Am. R. 465; Peters v. 
 Peters, 43 N. J. Eq. 140; Snyder v. Snyder, supra. 
 
22 CHATTLJEP, EEAL, AND PERSOJiAU [§ 21. 
 
 CHAPTER IV. 
 
 NOMENCLATURE, AND SUBORDINATE DIVISIONS. OP PER- 
 SONAL. PROPERTY. 
 
 i 21. Chattels, real, and personal. 
 
 22. Choses in possession; choses in action. 
 
 23. Estate, real and personal. 
 
 24. Goods, wares, merchandise, ellects, credits. 
 
 25. Personal property in expectancy. 
 
 § 21. Chattels, real, and personal. — ^The term chattel, 
 according to Blackstone, is derived from the technical Latin 
 word catella, which primarily signified beasts of husbandry, 
 cattle; but which, by accommodation, has a wider applica- 
 tion, including every species of property which is not real 
 estate, or a freehold. 
 
 It is a fact of historic interest to the student, that an- 
 ciently property was not, as at present, nominally divided 
 into real and personal, but into lands, tenements, and here- 
 ditaments on the one hand, and goods and chattels on the 
 other. This division and nomenclature was the outgrowth 
 of the feudal system ; and it will be remembered that, under 
 the proprietary rights and social conditions of that system, 
 goods and chattels were regarded as constituting an in- 
 ferior, and a comparatively unimportant, class of property. 
 
 In the course of time certain estates and interests in land 
 grew up which had no existence under the ancient feudal 
 system ; notably, leases for years. To these the feudal rules 
 concerning the realty did not apply ; and, moreover, being 
 regarded as inferior in character and value to lands held 
 under the feudal tenure, they were assigned to the rank and 
 
§ 22.] CHOSES IN POSSESSION, ETC. 23 
 
 class of goods and chattels. But, as leases for years, and 
 other interests of a like nature, are in fact interests in land, 
 they are denominated c hattels real, to distinguish them 
 from property personal in its nature, all species of which 
 are embraced in the term chattels personal. 
 
 Ch attels real, then, may be defined briefly as such inter- 
 ests as_axe_ann^ed^tOijorjoncem,_real_est^ ch attels p er- 
 sonal, STic.^ things as aro mnv^hlft, ^nTift-gpd to ftf ff.P"-"'^ tlio 
 person nf the oTCner. It will be seen that the present gen- 
 eral division of property is into real, and personal; and 
 that the term chattel is equivalent to the term person al 
 prop erty, including every species of prop erty^ not^mbraced 
 in the HivisinTi tfrnnftfl indiflFer entlY re al property, o r real 
 estate} 
 
 § 22. Choses in possession ; choses in action. — The word 
 "cliQse," which is a contribution from the French, means 
 a thing ; and in our law it is applied to personal property. 
 According to Blackstone, a chose or thing in possessio n 
 " subsists there only, where a man hath both the right, an d 
 al so the occupation, of t he thing;" wh \]p. a r.h.osp, nr thinff in 
 a ction, is "whe re a man hath not the occupation, but merely 
 a bare right to occupy the thing in question : the possessi on 
 whereof rnayjiuyw^pr Tip rpnnvpro d by a suit or action a t 
 l^Wj from whence the thing so recoverable is called a thing 
 or chose in action." 
 
 Mr. Schouler, in his learned treatise on personal property, 
 suggests that these terms are calculated to mislead; that 
 "they do not intend just what they appear to express;" 
 and that Blackstone "confounds two senses of the word 
 'property,' the one signifying the thing possessed, the other 
 
 1 2 Black. Com. p. 385; 2 Kent, Com. p. 341; 1 Sch. Pers. Prop, 
 pp. 29, 45; Williams' Pers. Prop. p. 2; Bout. L. Diet. "Chattels." 
 
24 ESTATE, OEAIi, AKD PERSON AL. [§ 23. 
 
 the right of possessing." He thinks a general division of 
 property into things corporeal and things incorporeal would 
 be preferable to the ordinary classification of the conunon 
 law. However this may be, the classification generally 
 adopted, and thoroughly incorporated into the law of per- 
 sonal property, is sufficiently accurate for the purpose, and 
 quite consonant with the plan of this work, which is to pre- 
 sent a clear and succinct statement of the law as generally 
 laid down by text writers, and recognized by the courts. 
 
 Adopting, then, the ordinary divisions and nomenclature, 
 choses in possession are things in which the right of prop - 
 e rty, and the occupancy, unite in the same person ; while 
 ch oses in action are things in which a person has the rig ht 
 of pr operty, but not the occupancy, po ssessio n being re cov- 
 erable by an ac ^^'"" fif- law; tignco the significance of the 
 designation, choses in action. 
 
 The latter division covers a broad field, including a great 
 variety of subjects of personal property. "It embraces," 
 says Chancellor Kent, "the most diffuse, and in this com- 
 mercial age, the most useful learning of the law. By far 
 the greater part of the questions arising in the intercourse 
 of social life, or which are litigated in the courts of justice, 
 are to be referred to this head of personal rights." * 
 
 § 23. Estate, real and personal. — The term "estate," 
 — in Latin status, — is derived from stare, to stand, meaning 
 the fixed condition of anything or person. Applied to law, 
 it signifies the condition or circumstances in which the 
 owner stands in relation to his property. The term "es- 
 
 2 1 Black. Com. p. 397; 2 Kent, Com. p. 351; 1 Sch. Pera. Prop, 
 pp. 32-40, 76, 86; Bouv. L. Diet "Choses in Action;" Williams' 
 Pers. Prop. pp. 4-7, 63; Pom. Mun. Law, §§ 779-781. 
 
§ 23.] ESTATE, REAL, AND PEKSONAIi. 23 
 
 tate" is properly applicable only to real property. It is 
 indigenous to the feudal system, under which absolute own- 
 ership is unknown, an estate being all that can be held or 
 enjoyed by the tenant. 
 
 By the English common law, all lands were held, either 
 mediately or immediately of the crown, the king being 
 called lord paramount. This is, in brief, the feudal tenure, 
 by which all lands in England are held; but which, with 
 few exceptions, does not exist in the United States. True, 
 it is maintained by jurists of repute, that there cannot be 
 an absolute ownership of lands in any system of jurispru- 
 dence, and t hatm this country t.hp nlt.imat^ ghgolntpi nwnftr - 
 ship vests in the state . On the other hand, it is insisted by 
 high authority that, while in the United States lands pass 
 to the state in case of forfeiture and escheat, this does not 
 constitute the feudal relation proper, but results from the 
 attribute of sovereignty in the body politic. 
 
 In this country, generally, lands a re allodia l, not feudal 
 in character or tenure. 
 
 The distinction between the two systems is, in brief, this : 
 under the feudal tenure, the absolute ownership of lan d, 
 the dominium directum, is in one man, whi le the actu al 
 possession la nd profitable use, the <Zo™ ^''»%??' i'i:'iJ'>, ig in ftp- 
 other; whereas, under the allodial system the ownershi p 
 and use, the dominium directum and the dominium utU e. 
 unite i n the same perso n. 
 
 While, however, the term "estate," in its original and 
 proper use, applies only to real property, it is frequently 
 employed to designate personal property. Especially is 
 this true in testamentary instruments and law, and in bank- 
 rupt and insolvent law. "AH my estate, real and per- 
 sonal," is a phrase often found in wills, and sometimes in 
 
26 ESTATE, GOODS, WAEBS, ETC. [§ 24. 
 
 other written instraments. The term "estate" alone is 
 sometimes used to cover both real and personal property, 
 and sometimes to cover real, or personal, property only; de- 
 pending in each case upon intention, which must be sought 
 by the rules of interpretation and construction. 
 
 As, under the feudal system, estates or interests in land 
 may be absolute or qualified, so when the term "estate" is 
 applied to personal properly, it may represent an absolute, 
 or a qualified interest.' 
 
 § 24. Goods, wares, merchandise, effects, credits. — ^The 
 word "goods" applies to personal property, and when not 
 joined to other substantives, is generally held to be more 
 limited in its scope than the word "chattels," embracing 
 inanimate objects only. It should be noticed, however, that 
 in wills it may embrace all the personal property of the 
 testator, animate and inanimate, corporeal or incorporeal, 
 depending for scope and significance in every case upon the 
 context and construction of the instrument. 
 
 The terms "wares" and "merchandise," when standing 
 by themselves, require no explanation. In the English 
 Statute of Frauds the phrase "goods, wares, and merchan- 
 dises" is employed, and like words are found in our Amer- 
 ican statutes. As thus employed, these terms have been un- 
 der judicial consideration, both in England and in this 
 country, and the result shows some contrariety of judicial 
 interpretation. While generally held to be very compre- 
 hensive in their scope, embracing all corp oreal movable 
 
 sBouv. L. Diet. "Estate," "Allodium;" Williams' Pers. Prop. 
 pp. 7, 8, 206, 259; Pom. Mun. Law, §§ 378-385, 434, 435, 842, 843; 
 Tiede. Real Prop. §§ 19, 25; 3 Kent, Com. pp. 513, 514; Goodeve, 
 Pers. Prop. p. 3; Dayt Surr. p. 232; Van Rensselaer v. Dennlson, 
 35 N. Y. 393. 
 
§ 25.] IN EXPECTANCY. 27 
 
 VmSS^ty, these terms, it is held hy some courts, do not 
 embrace all kinds of personal property. The prevailing 
 doctrine of the English authorities is, that these words com- 
 prehend only corporeal movable property, while the Amer- 
 ican authorities generally adopt a more liberal construction, 
 including inc orporeal property, choses in action, as well. 
 But the courts in our States are not^in full accord in re- 
 gard to the interpretation of this statutory phrase. 
 
 The term "effects" is often used to designate personal 
 property, and generally has a broader signification than the 
 term "goods." In a will it may carry the whole of a testa- 
 tor's personal estate, depending upon intention as deter- 
 mined by judicial construction. 
 
 The word "cgg dits" applies to d ebts due, money d e- 
 mands, and to all chos es in actio n.* 
 
 r — ' — 
 
 § 25. Personal property in expectancy. — Contrary to 
 the ancient common-law doctrine, it is now well established 
 that there may be an i nterest jti PTppntanny in pprgnn al 
 p ropeytv . That is to say, one per son may have the right 
 of po ssession and the usufruct for a term of ypars or for 
 life, while-another atj the same time hn-s n rpvPTHinTi or rp- 
 maiader in the same property. 
 
 It should be noticed, however, that the rule against per- 
 petuities is made applicable to personal property. The sub- 
 ject is regulated by statute in some of our States. For in- 
 stance, New York has the following provision: "The abso- 
 lute ownership of personal property shall not be suspended 
 by any limitation or condition whatever, for a longer pe- 
 
 *Bouv. L. Diet "Goods," "Merchandise," "Effects," "Credits;" 
 1 Sch. Pers. Prop. pp. 39, 40, 86, 87; Benj. on Sales, pp. 105, 118; 
 Am. Notes, §§ 111-133; Bishop, Con. (2nd Enl. Ed.) S 1315; 2 
 Pars. 0<m. (7 Ed.) pp. 4a-^l. 
 
28 IN EXPECTANCY. [§ 25. 
 
 riod than during the continuance and until the termination 
 of not more than two lives in being at the date of the instru- 
 ment containing such limitation or condition ; or if such in- 
 strument be a will, for not more than two lives in being at 
 the death of the testator." » 
 
 » Sch. 1 Pers. Prop. pp. 161-185; Williams' Pers. Prop. pp. 260- 
 262, and n. 1; 2 Kent, Com. pp. 352-354; Gen. Laws and Rev. 
 Stat (Heydecker's) p. 3900; N. T. Pers. Prop. Law. art I, sec. 2. 
 
§ 26.] JOINT OWNBBS. 29 
 
 CHAPTEE V. 
 
 PERSONAL PROPERTY, HOW HELD OR OWNED. 
 
 § 26. Joint owners. 
 
 27. Ownership in common. 
 
 28. Part-owners of ships. 
 
 29. Partners. 
 
 30. Corporations. 
 
 31. Joint-stock companies. 
 
 § 26. Joint owners. — Ownership in severalty requires 
 no discussion, tlie expression itself being plainly significant, 
 and fully characteristic. Joint ownership is more compli- 
 cated in its nature. It exists whe re two or mor f f ^-^ jninoH 
 in the ownershi p of the same T)rnpprtv h y fnnr nnit.jpg 
 namely, title, tiffiS^ in teres t, and possession. TJn itv of titl e 
 signi fies that the title of al l the joint owners sic^gnmA nnd er 
 o ne and the same instru ment, or was create d by the sa me 
 act on the part of the vendor or donor. Unity of time re- 
 quires that the interest of each should have vestsd-flLJihe 
 sa me mo ment. Unit y of inte rest implies that the interest 
 of each in the property is the same in quanti ty, and for the 
 sa me dura tion. Unity of pn gspssinn mpang that Ptinh nf the 
 owners has an un divided possession o f each entire part, and 
 also of the who le. In ancient technical expression, each is 
 possessed "per my et per tout." But as to unity of time, 
 the case of joint ownership created by will is an exception. 
 
 To the relationship of joint ownership, thus created, cer- 
 tain important rules appertain, which must not be over- 
 looked. 
 
 First. The rip ^ht of snr°^'°^"^^T ^^^ i^s accrescendi. 
 That is, in case of the death of one joint owner, the survivor 
 
30 JOINT OWNERS. [§ 26. 
 
 or survivors will take the entire interest in the properly, 
 unaffected by any disposition the deceased joint owner may 
 have made by his will, if there had, been no severance of 
 the joint ownership in the lifetime of the parties. 
 
 To the right of survivorship, however, an exception has 
 been made in favor of trade and agriculture, in cases of 
 partnership and joint undertaking in these branches of 
 commerce and industry, in which cases the interest of a de- 
 ceased joint owner vests in his executors or administrators. 
 
 The operation of survivorship in diverting the interest of 
 a deceased owner from his next of kin, to whom it naturally 
 belongs, is generally regarded as unreasonable and unjust, 
 and hence is not favored by courts or legislatures. Numer- 
 ous statutes have been passed providing in effect, that where 
 property is given or sold, granted or devised, to two or 
 more persons without words expressly, or by necessary im- 
 plication, creating a joint tenancy or ownership, it shall be 
 held to constitute a tenancy or ownership in common, rather 
 than a joint tenancy or ownership. And, in the absence of 
 legislation on the subject, courts generally incline to a con- 
 struction of instruments that wiU establish a tenancy or 
 ownership in common, in preference to a joint tenancy or 
 ownership. 
 
 But the doctrine of survivorship is well adapted to execu- 
 tors, administrators, trustees, and others actiug in a fiduci- 
 ary capacity, who have the legal title, but no equitable in- 
 terest in the property. Hence they are generally held and 
 treated as joint owners. 
 
 Second. As between themselves, each of the joint owner s 
 is entitled to an equal share of the rents, income, and prof- 
 its, during his life; and, as a logical result of this rule, if 
 one receives more than his share, the others have an action 
 against him to recover the excess. 
 
§ 27.] OWNERSHIP IN COMMON. 31 
 
 Third. From tlie unity of possession, each owner having 
 an undivided possession of each part as well as of the whole, 
 it follows that the possession of one is the possession of all. 
 Hence the rule, that one cannot maintain an action against 
 his co-owner for the possession; but in case of a wrongful 
 conversion of the property by one, the others may maintain 
 an action against him for damages. 
 
 Fourth. Joint ownership in personal properly may be 
 severed by agreement of the parties, by act of one in 
 disposing of his interest, by a decree of a court of equity, ' 
 and, as some authorities hold, by levy and sale of the in- 
 terest of one under an execution ; but as to the latter mode 
 of severance there might, in some cases, be serious practical 
 difficulty as each joint owner is entitled to the possession of 
 the whole property. In case of more than two joint owners 
 of the same property, if the interest of one pass to a third 
 party, the latter wiU become an owner in common, to the 
 extent of such interest, with the remaining joint owners, 
 who wiU continue joint owners as between themselves.^ 
 
 § 27. Ownership in common. — In analogy to a tenancy 
 in common_of_reaLfi§tate, ownership of personal property 
 is constituted by one unity, that of possession . Some or all 
 the other unities essential to joint ownership, title, time, 
 
 1 Williams' Pers. Prop. pp. 302-306; 1 Sch. Pers. Prop. pp. 18ft- 
 193, 195; 2 Bl. Com. p. 399; 2 Kent, Com. p. 351; 4 Id. pp. 363, 
 364; Davis v. L«ttich, 46 N. Y. 393; Van Doren v. Baity, 11 Hun, 
 239; Anderson v. Schulze, 64 Wis. 460; Gates v. Fraser, 9 111. 
 App. 624; Taylor v. Cox, 2 B. Mon. (Ky.) 429; Southworth v. 
 Smith, 27 Conn. 355; Terrell v. Martin, 64 Tex. 121; Franklin 
 Sav. Inst. V. People's Sav. Bank, 14 R. I. 632; Waldman v. 
 Broder, 10 Cal. 378; Buck v. Spofford, 31 Me. 34; Brinley v. 
 Kupper, 6 Pick. 179; Stone v. Aldrich, 43 N. H. 52; Postell v. 
 Skirling, Desaus. {S. C.) Eq. 158; Mills v. Husson, 140 N. Y. 99; 
 Matter of Kimberly, 150 N. Y. 90. 
 
32 OWNERSHIP IN COMMON. [§ 27. 
 
 and interest, may be wanting; yet, if the several parties in 
 interest have a united possession they are owners in com- 
 mon, or, as the relation is generally expressed, tenants in 
 common. The titles of the respective owners may have 
 come from different sources, and have vested at different 
 times, and their interests may be unequal, still, if united in 
 possession, they will be tenants in common; but, in the ab- 
 sence of this unity, whatever else their relations or interests 
 may be, they will not be owners in common, for unity of 
 possession is absolutely esesential to this kind of ownership. 
 The owners are interested, in legal technics, "per tout, et 
 non per my," each in contemplation of law, having a sepa- 
 rate ownership in the whole of his own share whatever it 
 may be, and not, as in joint tenancy, an undivided interest 
 in each part as well as in the whole. The unity of posses- 
 sion consists in a combination of the respective units of the 
 several owners, the share of each measuring his interest in 
 the common property. 
 
 As a general rule, joint owners or owners in common 
 should join in actions for trover or trespass for conversion, 
 or injuries received from a third person." 
 
 The doctrine of survivorship does not apply to ownership 
 in common, but on the death of one his interest passes to 
 his executors or administrators.' 
 
 The principal incidents of ownership in common are : 
 
 First. The possession of one is the possession of all,-and- 
 all are equally entitled^ poss ession.* 
 
 2 May V. Parker, 12 Pick. 34 ; White v. Brooks, 43 N. H. 402. 
 
 ?1 Sch. Pers. Prop. p. 193 et seq.; Williams' Pars. Prop. p. 306; 
 Beaumont v. Crane, 14 Mass. 400; Knox v. Campbell, 1 Pa. St. 
 366; Welch v. Sackett, 12 Wis. 243; Blessing v. House, 3 Gill. & 
 J 290; Brown v. Graliam, 24 111. 628; Bernecker v. Miller, 40 Mo. 
 473. 
 
 * References last supra; Williams v. Watkins, 3 Pet. 51 ; Strong 
 
§ 27.] OWNERSHIP IN COMMON. B3 
 
 Second. One can not maintain _an action against his co- 
 tenant to recover possession of the common property; but 
 he may have an action of tort against him for its conversion 
 or destruction. A use of property which amounts to de- 
 struction or spoliation constitutes conversion and will au- 
 thorize an action by those injured." 
 
 Third. The interest of one is subject to levy and sale by 
 execution for his debts ; but if the officer sell the whole prop- 
 erty, and not merely the interest of the judgment debtor, 
 he will be Uable to an action by the other co-owner for hi& 
 undivided interest. 
 
 Fourth. One owner in common of chattels may recover 
 from another any money properly expended on it beyond 
 his due proportion ; but there must have been a previous re- 
 quest to join in making the necessary repairs, unless there 
 exist some agreement or prescription binding either party 
 exclusively to make repairs.' 
 
 Fifth. Where personal property in common bulk and of 
 
 the same quality, severable in its nature, is owned by two or 
 
 more persons in common, each may sever and appropriate 
 
 his share if- it can be determined by measurement or weight, 
 
 without the consent of the others, and without liability to 
 
 an action for the conversion of the common property.^ 
 
 V. Colter, 13 Minn. 82; Southworth v. Smith, 27 Conn. 355; Har- 
 vey v. Cherry, 76 N. Y. 436; Meeker v. Wright, 76 N. Y. 262. 
 
 sDain v. Cowing, 22 Me. 347; Leonard v. Scarborough, 2 Ga. 
 73; Weld v. Oliver, 21 Pick. 559; White v. Brooks, 43 N. H. 402;. 
 Hyde v. Stone, 9 Cow. 230; Potter v. Neal, 62 How. Pr. R. 158;. 
 Agnew V. Johnson, 17 Pa. St. 373; Needham v. Hill, 127 Mass.. 
 133; Davis v. Lottlch, 46 N. Y. 393. 
 
 sLorlng V. Bacon, 4 Mass. 575; Carter v. Miller, Id. 559; Con- 
 verse V. Ferre, 11 Mass. 325; Doane v. Badger, 12 Id. 65; Gard- 
 ner V. Cleveland, 9 Pick. 334; Peyton v. Smith, Dev. & B. (N. C.) 
 L. 325. 
 
 'Forbes v. Shattuck, 22 Barb. 568; Tripp v. Riley, 15 Id. 333 j 
 Channon v. Lusk, 2 Lans. 211; Stall v. Wilbur, 77 N. Y. 158. 
 
 3 
 
34 PABT OWNEE OP SHIPS. [§ 28. 
 
 Sixth. Owners in common of personal property may 
 maintain a suit in equity for partition ; and in case a divi- 
 sion be impracticable, they may have a decree for the sale 
 of the common property, and a division of the proceeds. 
 But they are not entitled to compensation from each other, 
 for services rendered in the care of the common property, 
 in the absence of an agreement to that effect.* 
 
 § 28. Part-owners of ships. — ^A ship is a personal chat- 
 tel; and when owned by two or more parties, they hold a 
 peculiar relation to each other in respect of the joint prop- 
 erty, characterized in the law as "part-owners." They are 
 not classed with joint owners, tenants in common, or as 
 partners. Generally, however, they are owners in comm on 
 of t>in_gV)ip^ ""'l^^pa rtners in the maritim e enterprises in 
 which the vessel is en^asfed. 
 
 But they may be, and sometimes are, partners in the ship 
 as weU. Partners may own a ship as partnership property ; 
 and persons not general partners may, by agreement, be- 
 come owners as partners of a particular ship. In the ab- 
 sence of these conditions, they are not regarded in law as 
 either partners, or, technically, tenants in common, but 
 part-owners. 
 
 In respect to third parties, the several part-owners of a 
 ship are but one owner ; and hence in actions of contract by 
 and against them, all should be joined. But if torts be com- 
 mitted by several, an action for damages may be maintained 
 
 8 Godfrey v. White, 60 Mich. 443; Tripp v. Riley, supra, 333, 
 336; Tinney v. Stebbins, 28 Barb. 290; Wetmore v. Zabrlskle, 29 
 N. J. Eq. 62; Crapster v. Griffith, 2 Bland, 525; Smith v. Smith, 
 4 Rand. 95; Kerley v. Clay, 4 Bibb, 241; Marshall v. Crow's 
 Adm'r, 29 Ala. 278; Conover v. Earl, 26 Iowa, 167; 3 Pom. Eq. 
 §1391; Franklin v. Robinson, 1 Johns. Ch. 157; Harvey v. Har- 
 vey, 127 Ind. 91; Barney v. Leeds, 54 N. H. 128. 
 
§ 29.] PARTNERS. 35 
 
 against a part or all of tliem, at the pleasure of the injured 
 party." 
 
 § 29. Partners. — Chancellor Kent defines partnership 
 thus: "Partnership is a contract of two or more competent 
 persons, to place their money, effects, labor and skill, or 
 some, or all of them, in lawful commerce or business, and to 
 divide the profit, and bear the loss, in certain proportions." 
 Other definitions by approved authors, differing somewhat 
 in expression, are substantially the same in effect. 
 
 Whether a partnership exists is a question of fact; what 
 constitutes a partnership is a question of law.^' 
 
 The leading characteristics, and ordinary features, of a 
 partnership are, a community of interest for business pur- 
 poses in the stock and profit of the firm, and a sharing of 
 profit and loss. While community of interest in the stoek 
 or profit is essential to a partnership, community in the 
 property does not, in itself, constitute a partnership; for 
 such a community exits in other relations, as, for example, 
 in joint and common ownership. And there may be a shar- 
 ing in the profits of a business as a compensation for serv- 
 ices rendered by a person who is not a partner; the ascer- 
 tained profit of the firm being a fimd from which such com- 
 pensation is derived, and his share the measure of the same. 
 
 There are other qualifications and rules touching the cre- 
 ation and test of a partnership, but their discussion in this 
 
 » 3 Kent, Com. p. 152, et seg.; 1 Sch. Pers. Prop. p. 250, et seg.; 
 Abb. Ship. (Ed. 1854), pp. 1, et seg. and 127 et seg.; Bishop, Non- 
 Con. L. §§ 927, 928; Mumford V. Nicholl, 20 Johns. 611; Merrill 
 V. Bartlett, 6 Pick. 46; Holdemess v. Shackels, 8 B. & C. 612; 
 Rex V. Collector, 2 M. & S. 223; Bulkeley v. Barker, 6 Ex. 164; 
 Robertson v. Smith, 18 Johns. 459; Bower v. Stoddard, 10 Met. 
 375. 
 
 10 3 Kent, Com. p. 24; Bates, Part 5 1; 1 Sch. Pers. Prop. p. 
 205. 
 
36 PAETNEBS. [§ 29. 
 
 connection is forbidden by the limitations of the plan and 
 scope of the work in hand ; the purpose here being to briefly 
 explain the ownership of personal property by partners.^* 
 
 Partners are joint tenants or owners of their stock in 
 trade and effects, but without the right of survivorship; 
 and on a dissolution of the partnership they become tenants 
 in conmion of the partnership property. 
 
 The death of one partner is, ipso facto, a dissolution of 
 the partnership ; and thereupon his interest in the concern 
 passes to his personal representatives, who become tenants 
 or owners in common with the survivors. It should be 
 added, however, that on the death of one, the survivors have 
 the exclusive right to the possession of the partnership 
 property, and the management of the business, for the pur- 
 pose of closing up the same, paying the firm debts, and ad- 
 justing the equities between themselves and the deceased 
 partner. The survivors become the trustees of the prop- 
 erty, and in its administration are subject to the rules ap- 
 plicable to that class of fiduciaries. The interest of the de- 
 ceased partner will be the residue of his share after pay- 
 ment of partnership debts, and adjustment of the equities. 
 
 The representatives of a deceased partner cannot be held 
 for a partnership debt until the remedy against the surviv- 
 ing partners is exhausted or shown valueless.^^ 
 
 Eeal estate, bought with partnership funds, and used for 
 partnership purposes, is treated in equity as personal prop- 
 erty, and is subject to the same rules as other personal assets 
 
 "Bates, Part. §§ 15-71; 1 Sch. Pers. Prop. p. 210; Mason v. 
 Hackett v. Nev. 420; Atherton v. Tilton, 44 N. H. 452; Buckle v. 
 Eckhart, 3 N. Y. 132; Leggett v. Hyde, 58 Id. 272; Hanna v. 
 Flint, 14 Cal. 73; Parker v. Fergus, 43 111. 437. 
 
 12 Bates, Part. § 580; 1 Sch. Pers. Prop. p. 225; 3 Kent, Com. 
 p. 37; Voorhis T. Childs' Ex'r, 17 N. Y. 354; Pope v. Cole, 55 
 N. Y. 124. 
 
§ 29.] PARTNERS. 37 
 
 of the firm. But, after paying partnership debts and ad- 
 justing the equities between the partners, what becomes of 
 the residue, if any? Does it retain the impress of person- 
 alty, and pass to the executors and administrators for the 
 benefit of the next of kin, or does it resume its original and 
 intrinsic character as real estate, and descend to heirs? 
 The authorities disclose a disagreement between the Eng- 
 lish and American doctrine on this point; the former hold- 
 ing that M'hen once converted into personalty for partner- 
 ship purposes, it so remains and passes to personal repre- 
 sentatives for the benefit of the next of kin; while, by the 
 weight of authority, in this country, it resumes its true 
 character of real estate, and descends to heirs.*' 
 
 Each partner is the agent of all, and has full authority 
 to bind the others by his acts and contracts relating to the 
 business of the firm. He may sell, assign, and transfer 
 partnership property in the regular business of the partner- 
 ship, and for the payment of the firm debts. But in regard 
 to the authority of one partner to make a general assign- 
 ment of all the partnership property for the benefit of cred- 
 itors, without the knowledge or consent of his co-partners, 
 there is some difference of judicial opinion. The weight, 
 however, seems to be against such authority, especially 
 where preferences are made.** 
 
 The interest of each partner in the tangible partnership 
 
 13 Pars. Part. pp. 369-372; Essex v. Essex, 20 Beav. 442; Derby 
 V. Derby, 3 Drew. 495; Ripley v. Waterworth, 7 Ves. 425; Bon 
 ner v. Campbell, 48 Pa. St. 286; Brewer v. Browne, 68 Ala. 210; 
 Shanks v. Klein, 104 U. S. 18; Rice v. Barnard, 20 Vt 479; Bu- 
 chan V. Sumner, 2 Barb. Ch. 165. 
 
 11 Bates, Part. § 338; Story, Agen. § 37; Bouv. L. Diet "Part' 
 ners," sub. 9 et seq.; Pettee v. Orser, 18 How. Pr. R. 442; Fisber 
 V. Murray, 1 E. D. Sm. 341; Wells v. March, 30 N. T. 344; Os- 
 borne V. Barge, 35 Fed. Rep. 92; Coleman v. Darling, 66 Wis. 155> 
 
38 OOEPOKATIONS. [§ 30, 
 
 property is liable to sale by execution for payment of his 
 individual debts; and the purchaser on such sale becomes 
 a tenant or owner in common with the other partners. But 
 partnership property must first be applied to the payment 
 of the partnership debts, and the adjustment of partner- 
 ship equities; and, hence, a purchaser on a sale at the in- 
 stance of an individual creditor, wiU take only the interest 
 of the judgment debtor remaining after the payment of 
 such debts, and an adjustment of equities between the part- 
 ners.^* 
 
 § 30. Corporations. — ^A corporation is an artificial per- 
 son created by law, and endowed by its creator with certain 
 attributes, rights, and privileges, common to a natural per- 
 son. It has, however, some franchises which do not belong 
 to individuals generally of common right, and is subject to 
 some limitations from which natural persons are free. In 
 contemplation of law, the artificial body thus created is an 
 entity distinct from the individuals that compose it; and 
 corporations aggregate are characterized as immortal by 
 Chief Justice Marshall, in the famous Dartmouth CoUege 
 case, meaning thereby that they have the property of suc- 
 cession, by which the body remains the same under all 
 changes of its membership.** 
 
 16 Wright v. Ward, 65 Cal. 523; Daniel v. Owen, 70 Ala. 297; 
 Randall v. Johnson, 13 R. I. 338; Read v. Lanahan, 47 N. Y. 
 Super. Ct. Rep. 275; Hutchinson v. Dubois, 45 Mich. 143; Hersh- 
 neld V. Claflin, 25 Kan. 166; Atkins v. Saxton, 77 N. Y. 195; 
 Strauss v. Frederick, 19 N. C. 121; Smith v. Jones, 18 Neb. 481; 
 Davis V. Howell, 33 N. J. Eq. 72. 
 
 loMorawetz, C!orp. vol. 1, § 1; 1 Dill. Mun. Corp. § 9; 2 Black. 
 Com. p. 468, et seg.; Boone, Corp. § 1; Dartmouth Coll. v. Wood- 
 ward, 4 Wheat 633; People v. Assessors, etc., 1 Hill, 616, 620; 
 Providence Bank v. Billings, 4 Pet. 562; Brunswick v. Dunning, 
 7 Mass. 445, 447. 
 
§ 30.] CORPORATIONS* 39 
 
 Corporations are created by the sovereign power of the 
 state which, in this country, is exercised through the legis- 
 lature. They may rest on prescription; but in such case 
 long user presupposes an original grant from which their 
 existence was derived.^^ 
 
 The United States Congress, as well as the State legisla- 
 tures, has power to create corporations, public or private, 
 "whenever these become an appropriate means of exercis- 
 ing any of the constitutional powers of the general govern- 
 ment, or of facilitating its lawful operations in the States 
 or Territories."" 
 
 Corporations are classified thus : Public, and private ; ag- 
 gregate and sole ; ecclesiastical or religious, and lay ; and the 
 latter are subdivided into eleemosynary, and civil. But the 
 plan and scope of this work do not require more than a 
 statement of the classification; and most of the doctrines 
 presented under this section apply especially, though not 
 exclusively, to private corporations aggregate, as illustrat- 
 ing the method of holding or owning personal property, the 
 point now under discussion.^' 
 
 It is quite apparent, from the nature and organization of 
 corporations, that they must act through natural persons as 
 agents; and these are primarily and principally the officers 
 
 iTJiorawetz, Corp. vol. 1, § 8; 1 Dill. Mun. Corp. §5 15, 17; 2 
 Kent, Com. p. 276; McCulloch v. Maryland, 4 Wheat. 316, 424; 
 Franklin Bridge Co. v. Wood, 14 Ga. 80; Stone v. Plagg, 72 111. 
 397; Slierwood v. Am. Bible Sec. 1 Keyes, 561. 
 
 18 1 Dill. Mun. Corp. § 18; Morawetz, Corp. vol. 1, § 9; Os- 
 borne V. Bank of V. S., 9 Wheat. 738; Thompson v. Pacific R. R, 
 Co , 9 Wall. 519; Pacific R. R. Co. v. Lincoln Co., 1 Dill. C. C. R. 
 314. 
 
 18 Morawetz, Corp. vol. 1, 5 3; 1 Dill. Mun. Corp. §34; Dart- 
 mouth Coll. V. Woodward, 4 Wheat. 518; People v. Assessors, 
 etc., 1 Hill, 616; Robertson v. Bullions, 11 N. Y. 243; Silsby v. 
 Barlow, 16 Gray, 329. 
 
40 COBPOHATIONS. [§ 30. 
 
 of the corporate body. But, corporations generally have the 
 same power as natural persons of appointing sub-agents, 
 when the legitimate business of the body makes it necessarj-- 
 or proper. The officers are, in a sense, superior to their 
 principal in so far as the individual corporators constitute 
 the body. They are charged by law with certain duties, and 
 clothed with certain authority; and in the discharge of 
 these duties, or the exercise of this authority, the corpora- 
 tors cannot rightfully interfere. Courts of equity will not 
 exercise their jurisdiction to direct or control officers in re- 
 gard to their duties, except in clear cases of fraud or ex- 
 cess of authority, where there is no adequate remedy at 
 law.^o 
 
 The early common-law doctrine that a corporation aggre- 
 gate has no power of contract except by specialty, is so 
 changed that such a corporation, when acting within the 
 limits of its chartered powers, and the range of the purposes 
 of its organization, may take binding parol contracts. In 
 case of specialties the corporate seal is still essential to a 
 binding contract, but in all other respects the power of a 
 corporation to perform all legitimate acts, and make all 
 necessary and proper contracts by parol, through its author- 
 ized agents, is substanially the same as that of a natural 
 person. And, as in case of a natural person, promises may 
 be implied from the acts of a corporation, or of its agents.*^ 
 
 «»Morawetz, Corp. vol. 1, §§ 503, 504; Pom. Eq. § 1090; Plant- 
 ers' Bank v. Andrews, 8 Port. 404; N. H.Sav. Bank v. Downing, 
 6 N. H. 187; Church v. Sherman, 36 Wis. 404; Belmont v. Erie 
 Railway Co., 52 Barb. 637. 
 
 "2 Kent, Com. pp. 289-291; Bank of Columbia v. Patterson, 7 
 Cranch, 299; Pleckner v. U. S. Bank, 8 Wheat. 338; Burrill v. 
 Nahant Bank, 2 Met. 163; Strauss v. Eagle Ins. Co., 5 Ohio St. 59; 
 Partridge v. Badger, 25 Barb. 146;- Barry v. Merch. Exch. Co., 1 
 Sandf. Ch. 280; Merchants' Bank v. Bank of Columbia, 5 Wheat. 
 
§ 30.] COEPOKATIONS. 41 
 
 By the common law, corporations have the capacity of 
 taking, holding, possessing, aliening, and transmitting in 
 succession, real and personal property to the same extent 
 as natural persons, so far as necessary for the purposes of 
 their creation. But this capacity may be, and generally 
 is, limited by their charter, or by general statutory law, es^ 
 pecially in respect to real estate.''^ 
 
 The individual corporators have not the same ownership 
 or interest in the corporate property, as have tenants or 
 owners in common, joint owners, or partners, in the com- 
 mon property of their respective associations. In other 
 words, they are not owners in common, joint owners, or 
 partners ; but the title is in the artificial body which, in con- 
 templation of law as we have seen, is distinct from the 
 members of the corporation. The capital of private cor- 
 porations aggregate is divided into shares, called stock. 
 These shares give to holders an interest in the capital to the 
 extent of their value, and entitle them to a corresponding 
 and proportionate part of the profits of the business. The 
 term stock, in its full legal import, embraces the whole in- 
 terest of the share-holders in the corporation, and all their 
 rights growing out of the relation. It includes the right to 
 share in all dividends, and surplus profits issuing from the 
 use of the capital stock, and also their proportionate share 
 of the capital and property of the corporation on its disso- 
 lution, after payment of the debts. 
 
 But a shareholder has no legal title to the property or 
 
 326; Bank of, U. S. v. Dandrldge, 12 Wheat. 68; Sheldon v. Fair- 
 fax, 21 Vt. 102; Palmer v. Medina Ins. Co., 20 Ohio, 537. 
 
 22Morawetz, Corp. vol. 1, § 327; 2 Kent, Com. p. 278; Dutch 
 Church V. Mott, 7 Paige, 83; Raymond v. Commissioners, etc., 5 
 Ohio, 205; McCartee v. Orph. Asy. Soc., 9 Cow. 437; Ketchum v. 
 Buffalo, 14 N. Y. 356; Robie v. Sedgwick, 35 Barb. 319; Infra, 
 Ch. XIII. 
 
42 JOINT-STOCK COMPANIES. [§ 3L 
 
 profits until a division is made, or a dividend is actually 
 declared. When declared it is, in contemplation of law, 
 severed from the common fund, and becomes the individual 
 property of the stockholders, which they are entitled to re- 
 ceive, and for which, on demand and refusal, they may 
 severally maintain an action of assumpsit against the corpo- 
 ration. A dividend declared is thereafter held as a trust 
 fund by the corporation, and it cannot rightfully be de- 
 voted to other objects. 
 
 The owner of stock may assign or transfer it at pleasure, 
 and give to the assignee the same title and interest held and 
 owned by himself, including dividends thereafter declared, 
 whether earned before or after the transfer; and the as- 
 signee will be subject to the obligations and disabilities of 
 the assignor among which is the liability for installments 
 thereafter called for. But a share-holder cannot so dispose 
 of his interest as to separate it from the body of stock held 
 in common with other stockholders. 
 
 At common law, stock cannot be taken in execution and 
 sold for the debts of the owner; but it may be reached for 
 the benefit of creditors by means of equity proceedings." 
 
 § 31. Joint-stock companies. — These associations oc- 
 cupy a middle ground between eorpiorations and partner- 
 ships, having features peculiar to each. Like corporations 
 
 ssMorawetz, Corp. vol. 1, §§ 31-227; Pom. Eq- Jur. § 1090; 
 1 Sch. Pers. Prop. p. 642; Ang. & Ames, Corp. §§ 588, 589; Hyiatt 
 et al. v. Allen, 56 N. Y. 196; Brightwell v. Mallory, 10 Yerg. 196; 
 State v. Franklin Bank, 10 Ohio, 90, 97; Duvergier v. Fellows, 5 
 Bing. 248; Quiner v. Marblehead Ins. Co., 10 Mass. 476; Moore v. 
 Bank of Commerce, 52 Mo. 377; Bayard v. Farmers, etc.. Bank, 
 52 Pa. St. 232; Sabine v. Bank of Woodstock, 21 Vt. 353; Howe v. 
 Starkweather, 17 Mass. 240; Denton v. Livingston, 9 Johns. 96; 
 Granger v. Bassett, 98 Mass. 462; LeRoy v. Globe Ins. Co., 2 Edw. 
 Ch. 657. 
 
§ 31.J JOINT-STOCK COMPANIES. 43 
 
 they have a common name, usually descriptive of their busi- 
 ness, and which does not, as in partnerships, consist of the 
 names of the members. They have also, like corporations, 
 their officers, by-laws, and rules of procedure, and by these 
 ivies and by-laws the election of officers, transactions of 
 business, and the transfer of shares, are regulated. The 
 transfer of shares or the interest of a member in the prop- 
 erty of the company, is made by certificate or scrip, issued 
 and recorded in substantially the same manner and form as 
 in the case of corporations. But they are more assimilated 
 to partnerships than to corporations, both in respect of or- 
 ganic character, and of their internal and external rela- 
 tions ; and th^ are generally subject to the law of partner- 
 ships. , They have been characterized as partnerships in 
 which the capital is divided, or agreed to be divided, into 
 shares so as to be transferable without the express consent 
 of all the co-partners, not an inapt characterization.^* 
 
 In England joint-stock companies are regulated by stat- 
 ute. "When not incorporated, or organized under and regu- 
 lated by statute, general or special, they are in essence part- 
 nerships by whatever name christened, albeit partnerships 
 of a peculiar character. *"* 
 
 Joint stock companies have not been favored in America. 
 
 Between corporations and joint-stock companies there is 
 a mailed difference in this: In the former the rights, du- 
 ties, and responsibilities of the body and of its members, 
 
 MMorawetz, Corp. vol. 1, § 6; Pars. Part. pp. 541-546; 1 Sch. 
 Pers. Prop. pp. 247-250; 3 Kent, Com. pp. 27, 28; Bouv. L. Diet. 
 "Joint-stock Companies." 
 
 28 Citations supra; and Williams v. The Bank of Mich., 7 Wend. 
 542; Tenney v. The N. E. Protective Union, 37 Vt. 64; The King 
 V. Dodd, 9 East. 516; Holmes v. Hlggins, 1 B. & C. 74; Hess v. 
 W«rts, 4 Serg. & R. 356; Gorman v. Russell, 18 Cal. 688; Robbing 
 V. Butler, 24 111. 387. 
 
44 JOINT-STOCK COMPANPS. [§ 31, 
 
 are prescribed and governed strictly by the provisions of 
 their respective charters, and the general corporation laws 
 applicable to such corporations; and stockholders are not 
 personally or individually liable for the acts or contracts 
 of the officers or members of the body, unless expressly so 
 made by the charter, or the general statutory law applica- 
 ble to such bodies. Whereas, in all unincorporated compa- 
 nies, where the conmion-law rule is not changed by statute, 
 the stockholders are personally responsible in their indi- 
 vidual capacities for all acts and contracts of the company, 
 and of its authorized agents, within the scope of the busi- 
 ness of the association, the same as in partnerships proper."' 
 
 There is an important difference between a partnership 
 and a joint-stock company in the effect produced by the 
 death of a member, or the transfer of all his interest in tiie 
 association. In the former it works a dissolution of the 
 company; but not necessarily, or generally, so in the lat- 
 ter." 
 
 From what has now been said in regard to joint-stock 
 companies, it will be correctly inferred that the common- 
 law rule applicable thereto may be changed by statute, or 
 modified in their application by articles of agreement. And 
 it should be noted that, when associations intended as 
 
 20 1 story, Part, pp 107-109; Pars. Part. pp. 544, 545; Babb v 
 Read, 5 Rawle, 157; Tappan v. Bailey, 4 Md. 535; Cox v. Bad- 
 fish, 35 Me. 302; Skinner v. Dayton, 19 Johns. 513; Penn. Ins. 
 Co. V. Murphy, 5 Minn. 36; Henry v. Jackson, 37 Vt 431; and 
 Gorman v. Russell, 18 Cal. 688; Williams v. The Bank of Mich., 
 Tenney v. The N. B. Protective Union, and Robbins v. Butler, 
 cited supra. 
 
 2Tpars. Part. pp. 545, 547; Putnam v. Wise, 1 Hill, 234; Mur- 
 ray V. Bogart, 14 Johns. 318; Marquand v. N. Y. Manuf. Co., 17 
 Id. 535; Woodwell v. Keeler, 8 Watts & S. 63; Kingman v. Spurr, 
 7 Pick. 235; Mason v. Connell, 1 Whart. 381; James v. Woodruff, 
 2 Denio, 574. 
 
§ 31.] JOINT-STOCK COMPANIHS. 45 
 
 joint-stock companies, fail to become such on account of 
 some informality in their organization, they generally con- 
 stitute partnerships, and are subject to the laws applicable 
 thereto."' 
 
 In some cases the legal title to all the property of the 
 company is vested in trustees, who hold it in trust for the 
 benefit of the share-holders, who have the equitable interest ; 
 but this does not affect the rules herein presented as gov- 
 erning such companies. 
 
 It may be added that generally, as in the case of corpora- 
 tions, the business of joint-stock companies is managed by 
 their officers and other agents employed for the purpose; 
 and to the relation of principal and agent, thus created the 
 general law of agency applies."* 
 
 Joint-stock companies, like corporations aggregate and 
 partnerships, may take, hold, and alien, both real, and per- 
 sonal property, subject to statutory limitations and regula- 
 tions. 
 
 MPars. Part. p. 548; Whipple v. Parker, 29 Mich. 370; Man- 
 ning T. Gasharie, 27 Ind. 399; National Bank t. Landon, 45 N. T. 
 410. 
 
 29 Pars. Part p. 542. 
 
46 MOD^ OP ACQUIBINa TITLiB. [§ 32. 
 
 CHAPTER VL 
 
 MODES OP ACQUIRING TITLE TO PERSONAL PROPERTY. 
 
 S 32. Modes of acquliing title classified and analyzed. 
 
 § 32. Modes of acquiring title classified and analyzed. — 
 By a common and convenient analysis and grouping, there 
 are three general ways in which title to personal properly 
 may be acquired, viz : 
 
 First. By original acquisition; 
 
 Second. By transfer by act of law; and 
 
 Third. By transfer by act of the parties.* 
 
 These general ways are severally sub-divided into par- 
 ticular methods, each embracing its specific ways of ac- 
 quiring title to-wit: 
 
 First. Original acquisition; sub-divided into — 
 
 1. Occupcmcy; embracing (a) goods taken by cap- 
 
 ture in war; (b) goods casually lost by the 
 owner, and unreclaimed, or designedly aban- 
 doned; (c) waifs; and (d) reclaiming ani- 
 mals feres naturce. 
 
 2. Accession; embracing (a) fruits of the earth, 
 
 produced naturally, or by human industry; 
 (b) the increase of animals; (c) materials of 
 one person united to the materials of another ; 
 and (d) confusion of goods. 
 
 12 Black. Com. pp. 2 et seq., 401; 2 Kent, Com. p. 356; 2 Sch. 
 Pers. Prop. p. 4, 
 
§ 32.] MODES OF ACQUIRING TITLE. 47i 
 
 3. Products of intellectual labor; embracing (a) 
 
 patents for inventions and designs ; (b) copy- 
 right; (c) letters addressed from one corres- 
 pondent to another; and (d) lectures. 
 
 4. Trade-marks. 
 
 Second. Transfer hy act of law; sub-divided into (1) for- 
 feiture; (2) succession; (3) judgment; (4) intestacy; 
 (5) insolvency; and (6) marriage. 
 
 Third. Transfer hy act of the parties; sub-divided into 
 (1) gifts inter vivos; (2) gifts causa mortis; (3) title by 
 win or testament ; (4) sales; (5) indorsements; (6) assign- 
 ments; and (7) bailments. 
 
 In the chapters following, these general and particular 
 methods of acquiring title to personal property will be dis- 
 cussed briefly in the order above named, including the spe- 
 cific modes tinder each sub-division. 
 
 In considering the methods of acquiring title, the ways of 
 losing it will necessarily appear; and hence direct treat- 
 ment of the latter would be superfluous. 
 
48 OCCUPANCY. [§ 33. 
 
 CHAPTER Vn. 
 TITLE BY ORIGINAL ACQUISITION. 
 
 § 33. Occupancy; the first known metliod of acquiring title. 
 
 34. Goods taken by capture in war. 
 
 35. Goods lost or abandoned. 
 
 36. Waifs. 
 
 37. Reclamation of animals ferm naturcB, 
 SS. Title by accession; defined. 
 
 39. Fruits of the earth. 
 
 40. Increase of animals. 
 
 41. Materials of one person united to those of another. 
 
 42. Products of intellectual labor, discussed. 
 43-46. Patents for inventions and designs. 
 47-50. Copyright. 
 
 51. Letters from one correspondent to another. 
 
 52. Lectures. 
 53-60. Trade-marks. 
 
 § 33. Occupancy. — Under original acquisition, the first 
 general mode of acquiring title to personal property, occu- 
 pancy is primal. This includes the original or beginning 
 of title, and also the recommencement when the chain has 
 been broken, and the connecting link is lost. Occupancy is 
 generally regarded as the first known method of acquiring 
 exclusive title to property. 
 
 The origin and foundation of the right of private prop- 
 erty has given rise to much learned discussion, and some 
 difference of opinion among publicists. Without attempt- 
 ing in this connection to present the different views and 
 lines of argument on the question, it will be assumed in ac- 
 cord with the author's belief, that the right of property is 
 of Divine origin, derived by title deed from the original 
 Creator of all things, and attested by universal intuition. 
 
§ 33.] OCCUPANCT. 49 
 
 Among all nations and peoples, from the rudest and most 
 barbarous to the most highly civilized and polished, there 
 has always existed a natural sense of property, the recogni- 
 tion of a natural law of property. There has always and 
 everywhere existed an intuitive conviction of a natural 
 right to gratify the universal desire of mankind to acquire 
 and possess external things, and to exercise exclusive do- 
 minion over them. And it is written by the pen of inspira- 
 tion that our infinitely wise and beneficent Creator gave to 
 men ' ' dominion over the fish of the sea, and over the fowl 
 of the air, and over the cattle, and over all the earth, and 
 over every creeping thing that creepeth upon the earth. ' ' ^ 
 
 But assuming that by force of natural law and Divine 
 ordinance, the right of property in external things in the 
 aggregate belongs to the human race collectively, the ques- 
 tion still remains, — How can an individual acquire exclu- 
 sive title to things in the segregate? To this question no 
 writer has given a more satisfactory answer than Chancellor 
 Kent, who says: "The exclusive right of using and trans- 
 ferring property, follows as a natural consequence, from 
 the perception and admission of the right itself," that is, 
 the perception and admission of the truth that the acquisi- 
 tion and enjoyment of property is a law of man's nature. 
 
 It is claimed by some writers, that in the infancy of so- 
 ciety there was a community of goods. There may have 
 been a community in the substance of things, in the sense 
 that property in tiie aggregate belongs to mankind as a 
 whole; but community cannot reasonably be predicated of 
 the use of things while in the possession of individuals, it 
 being impracticable, and in conflict with the natural right 
 of private property. Eef erring to the germinant period of 
 legal ideas in the early stages of society, we find that the 
 
 1 Genesis, ch. I, t. 26. 
 4 
 
50 OCCUPANCY. [§33- 
 
 usufruct constituted the only benefit and value of prop- 
 erty ; and hence the theory of a community in the substance 
 of things, based upon the doctrine that to manldnd in gen- 
 eral belong the subjects of property as a whole is not in- 
 compatible with the right of individuals to the exclusive 
 use of particular things. 
 
 But, whatever theory we adopt the fact is, that he who 
 first appropriated a thing to his own use acquired a prop- 
 erty therein, and an exclusive right thereto, by common 
 consent ; which property and right continued, so long as the 
 exclusive use or occupancy continued, and no longer. The 
 right of possession was limited to the act of possessioif; 
 when the latter ceased the former was lost ; whereupon any 
 other individual might appropriate the thing to his own 
 use, with the like right and limitation ; and so on in succes- 
 sion indefinitely. This rule is well adapted to the intelli- 
 gence and wants of man in a rude and undeveloped condi- 
 tion of the race. His nature is largely sensuous ; he is un- 
 able to grasp abstract principles, and his perception of in- 
 telligent ideas is confused and feeble. Hence the truth of 
 the saying that "property without possession, was too ab- 
 stract an idea for savage Ufe." It may be said also with 
 equal truth, that the mere use or occupancy of goods and 
 chattels was ample for the few and simple wants of man in 
 the primitive condition of society. 
 
 But the world moved ; population, and the wants of man 
 increased; social relations became more complex; indiAdd- 
 ual interests clashed; and the time came when it was seen 
 that personal rights, and the peace and welfare of society, 
 required practical recognition of exclusive private prop- 
 erty in the substance, as well as in the use, of things. 
 
 This doctrine established, another step in advance, the 
 right of transferring both the title and the possession of 
 
§ 34.] GOODS TAKEN BY CAPTUKE IN WAR. 51 
 
 property, was natural and logical. Thus, advancing step 
 by step as the exigencies of society demanded, and reason 
 dictated, grew up that just and enlightened system of prin- 
 ciples and rules which constitutes the law of personal prop- 
 erty. Briefly stated, the order of development was, first, the 
 right of possession or occupancy, the usufruct; second, the 
 right to the substance of the thing, which carries with it 
 the prima facie right of possession ; and, third, the right to 
 transfer the thing itself, including both the substance and 
 the possession. 
 
 With this brief historical sketch of title to personal prop- 
 erty, we are prepared to discuss the different ways of ac- 
 quiring title by occupancy, one of the subdivisions of title 
 by original acquisition.* 
 
 § 34. Goods taken by capture in war. — This constitutes 
 one mode of acquiring title by occupancy. At the common 
 law, the title to goods taken by capture in war vested in 
 the captor, whether seized by national agency or by volun- 
 tary individual action; but now, by the general consensus 
 of civilized nations, the title in either case vests primarily 
 in the sovereign ; and captured goods belong to the individ- 
 ual captors only to the extent, and under regulations, pre- 
 scribed by positive law. 
 
 The right of seizure is now generally regarded as a mari- 
 time right; and the purpose of its exercise is the destruc- 
 tion of the enemy's conunerce and navigation, thus weak- 
 ening his naval power. In contemplation of law, a declara- 
 tion of war duly made by the sovereign or government of a 
 state, is a declaration of war by all its subjects individually 
 
 2 2 Black. Com. pp. 2 et seq.; 258, 401; 2 Kent, Com. pp. 317 et 
 seq., 356; 1 Sch. Pers. Prop. pp. 1-24; 2 Id. pp. 5-8; Bouv. L. 
 Diet. "Acquisition;" Holy Bible, Gen. I. 28; And. L. Diet "Occu- 
 pancy." 
 
52 GOODS TAKEN BY CAPTURE IN WAR. [§ 34. 
 
 and collectively, and is binding upon all. As a corollary of 
 this doctrine, not only do the belligerent nations become 
 enemies, but by implication all the subjects of each become 
 enemies to all the subjects of the other. From this doc- 
 trine, in connection with the rule of public law that the 
 property of an enemy, or of his subjects, is liable to cap- 
 ture by the adverse nation, it would seem to follow logically 
 that the seizulre may be made voluntarily by a private citi- 
 zen, as weU as by direct sovereign or governmental author- 
 ity ; and such is the law. As a consequence, title to the cap- 
 tured property being lost by the owner, would, at common 
 law, vest directly in the captors, as the title must be in 
 some body, natural or corporate; and such is strictly and 
 logically the rule as between the belligerent parties. But 
 the prevailing doctrine of public law on the subject now is, 
 that when a private citizen makes the seizure he is sup- 
 posed to act in behalf of the government, whose prerogative 
 it is to adopt or repudiate the seizure at pleasure. Adop- 
 tion by the government being equivalent to a precedent au- 
 thority or command, the seizure becomes the act of the gov- 
 ernment. If the government repudiates, or fails to adopt 
 the capture, the individual captors will take no title to the 
 property seized. 
 
 In all maritime captures, whether by sovereign authority 
 or by voluntary private action, the captured property, with 
 proofs of legality of seizure, must be submitted to a prize 
 court, whose adjudication determines the legality of the 
 capture, and the transfer of title. If the seizure be sus- 
 tained, the proceeds of the captured property is generally 
 distributed among the captors as a "reward for bravery, 
 and a stimulus to exertion." 
 
 Regarding the property of qlien enemies foimd within the 
 limits of a state on the commencement of hostilities, there 
 
§ 34.] GOODS TAKEN BY CAPTURE IN WAR. 53 
 
 has been considerable discussion, but the doctrine seems to 
 be well established that the state has the right to capture 
 and confiscate such property. But the exercise of this harsh 
 and practically unjust measure rests in the discretion of 
 the government ; and the right itself has been to a large ex- 
 tent practically nullified by the laws and ordinances of 
 many governments, and by international treaties. By these 
 provisions in the interest of justice and progressive civiliza- 
 tion, property of alien enemies brought into the country in 
 irood faith and with the sanction of the government, before 
 the outbreak of hostilities, is protected from confiscation. 
 In the United States the existence of this right is made to 
 depend upon act of Congress. 
 
 The right of seizure and confiscation of private property 
 is not the same upon the land as in naval warfare. It is 
 true that, in cases of military necessity, the capture or de- 
 struction of the enemy's property on land is sanctioned by 
 the law of nations ; but the doctrine seems to be established 
 that no private right of property arises from capture by 
 land forces. And, unnecessary depredations upon private 
 property in the prosecution of hostilities upon land are re- 
 stricted and discouraged by wise and humane commanders. 
 
 Before closing this section, it may be well to note that 
 one consequence of a declaration of war is, to interdict all 
 commercial intercourse between the subjects of the belliger- 
 ent powers, and to render contracts between them void, ex- 
 cept such as are made under license of the government, ex- 
 press or implied.' 
 
 »1 Kent, Com. pp. 55-59, 97, 101, 108-112; 1 Cooley's Black, 
 p. 259, and n.; 1 Abb. U. S. Pr. pp. 545-554; Abb. Ship. (7 Am. 
 Ed.), pp. 29-34, and notes; Bouv. L. Diet. "Capture;" Conkl. Prac. 
 p. 461; Bishop, Con. (Enl. Ed.), § 1000; Brown v. United States, 
 8 Cranch, 110; The Cargo of Ship Emulous, 1 Gall. 563; The 
 Angelica, Blatchf. Pr. Cas. 566; The Merimac, Id. 584; The Cale- 
 
54 GOODS LOST OE ABANDONED. [§ 35. 
 
 § 35. Goods lost, or abandoned. — ^At common law, to 
 goods lost by the owner and unreclaimed, or designedly- 
 abandoned by him, the finder acquires title by occupancy. 
 But the former owner must have completely relinquished 
 the chattel before a perfect title will accrue to the finder.* 
 
 The title to lost goods remains in the former owner until 
 he abandons the intention of reclaiming them, and such in- 
 tention may be presumed by lapse of time, or shown by 
 some affirmative act on his part ; the fact in aU cases being 
 determined by the circumstances. Until such abandonment 
 he will have the right to take possession of the lost chattel 
 whenever and wherever he may find it, even though it may 
 have passed into the hands of a bona fide purchaser. But, 
 in the meantime, the finder or purchaser will have a special 
 property in the chattel, which wiU enable him to maintain 
 trespass or trover against a stranger for an unauthorized 
 interference with, or conversion of, the property." 
 
 In case the finder knows the owner, or if circumstances 
 
 donia, 4 Wheat. 100; Carrington v. Merchant's Ins. Co., 8 Pet. 
 495; Taylor et al. v. The United States, 3 How. 197; United 
 States V. The Active, 2 Car. Law Repos. 192; United States v. 
 Two hundred, etc., bales of Cotton, Law Rep. N. S. 451; And. L. 
 Diet. "Capture." 
 
 *2 Kent, Com. pp. 356, 357; 2 Sch. Pers. Prop. p. 14 et seq.; 
 Williams, Pers. Prop. p. 24; Bridges v. Hawkesworth, 9 Eng. L. 
 & Ea. 424; Livermore v. White, 74 Me. 456, Am. Rep. 600; 
 Hamaker v. Blanchard, 90 Pa. St. 377, 35 Am. Rep. 664; 
 Brown v. Sullivan, 62 Ind. 281; Tancil v. Seaton, 28 Gratt. (Va.) 
 601; Durfee v. Jones, 11 R. I. 586; New York & H. R. Co. v. Haws, 
 56 N. Y. 175. 
 
 2 Kent, Com. p. 356; 2 Sch. Pers. Prop. p. 14 et seq.; Williams, 
 Pers. Prop. pp. 23-26; Armory v. Delamirie, Str. Rep. 556; Bran- 
 don V. Huntsville Bank, 1 Stewart (Ala.), 320; Agar v. Lisle, Hob. 
 187; Knapp v. Winchester, 11 Vt. 351; Cook v. Patterson, 35 Ala. 
 102; Jeffries v. Great Western R. R. Co., 34 Eng. L. & Eq. 122; 
 Sylvester v- Girard, 4 Rawle, 185; New York, etc., R. R. Co. v. 
 Haws, 56 N. Y. 175. 
 
§ 35.] GOODS LOST OR ABANDONED. 55 
 
 come to his knowledge indicating the true ownership, and 
 he conceals the finding and converts the property to his 
 own use, he may be held guilty of larceny. But some cases 
 hold that, to constitute larceny the finder must have had 
 the animus furandi when the property was found and taken 
 by him, and that no subsequent act or intent can render 
 him guilty of larceny.* 
 
 The acquisition of title by finding is limited to chattels 
 on the earth's surface, and does not apply to treasure trove, 
 goods hidden in the earth. Treasure trove originally was 
 coin or money hidden in the earth, or in a private place, 
 the owner being unknown. Although the title was in the 
 finder, by the English rule, it is now held that title is vested 
 in the sovereign or state. This question, however, has not 
 been definitely decided in the United States.'' It is held 
 with reason that, the fact of burying or concealing the 
 property by the owner, indicates his purpose of retaining, 
 and negatives the intention of abandoning, the same.* 
 
 Stolen corporeal properly may be recovered by the owner, 
 not only from the thief, but from any person in whose 
 hands it may be found, even from a hona fide purchaser. 
 The thief acquires no title, and has none to convey.' 
 
 8 2 Kent, Com. p. 357; Bishop, Crim. L. §§ 880-883; 2 Sch. 
 Pers. Prop. pp. 24, 25; Rex v. Mucklow, 1 Ryan & M. 160; But- 
 ler's Case, 3 Inst. 107;. People v. Anderson, 14 Johns. 294; People 
 V. Cogdell, 1 Hill, 94; The State v. Weston, 9 Conn. 527; People 
 V. McGarren, 17 Wend. 460; McAvoy v. Medina, 11 Allen, 548; 
 Bridges v. Hawkesworth, 7 Eng. L. and Eq. 424; And. L. Diet. 
 "Abandoned." 
 
 T Ferguson v. Ray, 44 Ore. 557. 
 
 8 2 Kent, Com. p. 358; and cases cited supra. 
 
 8 3 Pars. Cont. (7th Ed.) p. 520; 2 Sch. Pers. Prop. p. 22; Bearce 
 V. Banker, 115 Mass. 129; Moody v. Blake, 117 Mass. 23 26; 
 Prime v. Cobb, 63 Me. 200; Bryant v. Witcher, 52 N. H. 158. 161; 
 Klein v. Seibold, 89 111. 540; Nixon v. Brown, 57 N. H. 34; 
 Coombs V. Gorden, 59 Me. Ill; Barker v. Dinsmore, 72 Pa. St 
 
56 GOODS LOST OB ABANDONED. [§ 35. 
 
 But commercial policy has established a different rule in 
 respect to money, bank notes, and current negotiable se- 
 curities, to which a bona fide holder acquires and wiU re- 
 tain title against a former owner, in whatever way he may 
 have lost the chattel, even though it were stolen from him.^* 
 
 And, for like reasons, the bona fide holder of negotiable 
 commercial paper indorsed in blank, or payable or in- 
 dorsed to bearer, and acquired by him before its maturity, 
 for a valuable consideration, and without notice of the loss, 
 acquires a good title, and can maintain it against the 
 former owner. Nothing «hort of mala fides wiU defeat the 
 holder's title." 
 
 As it is the duty of the finder to take proper care of the 
 goods, and to make all reasonable efforts to ascertain the 
 true owner, it is but simple justice that he should receive 
 suitable compensation for his trouble and expense in that 
 regard ; and this the law awards him. But it is held that 
 the finder has no lien on the property for his trouble and 
 expense except as to a reward offered for its recovery.'^ 
 
 The common-law doctrine on this subject has been more 
 or less modified in gome of our States, and elsewhere, by 
 legislation, making the state instead of the finder the para- 
 
 427; Mechanics, etc., Bank v. Farmers, i etc.. Bank, 60 N. Y. 40; 
 Hill V. Snell, 104 Mass. 173; Pease v. Smith, 61 N. Y. 477. 
 
 10 2 Sch. Pers. Prop. p. 23; Ventress v. Smith, 10 Pet. 161; Hoff- 
 man V. Carow, 22 Wend. 285; Goodman v. Simonds, 20 How. 343; 
 Backhouse v. Harrison, 5 B. & Ad. 1098; Lowndes v. Anderson, 
 13 East. 130; Raphael v. The Bank of England, 17 C. B. 161. 
 
 11 2 Dan. Neg. Inst. § 1469 ; Story on Notes, § 382 ; Story, Bills, 
 S 416; Chitty, Bills (13 Am. Ed.) pp. 254, 255; Murray v. Lardner, 
 2 Wall. 710; Garvin v. WIswell, 83 111. 216. 
 
 12 2 Kent, Com. p. 356; 2 Sch. Pers. Prop. pp. 15, 16; Williams, 
 Pers. Prop. p. 28 et seq.; Nicholson v. Chapman, 2 H. Bl. 254; 
 Wentworth v. Day, 3 Met 352; Marvin v. Treat, 37 Conn. 96; 
 Wood V. Pierson, 45 Mich. 313. 
 
§ 36.] WAIFS. 57 
 
 mount owner, subject to the rights of the true owner, and 
 also in some other particulars. 
 
 § 36. Waifs. — Stolen goods waived or thrown away by 
 a thief in his flight, through fear of apprehension, are 
 called waifs. If the goods thus waived be seized by a pub- 
 lic officer, or by a private person, before the owner reclaims 
 them, then, the latter, at common law, loses his title thereto. 
 This is on the assumption that the owner was culpably neg- 
 ligent in pursuing the thief and reclaiming his goods, and 
 therefore should lose his title as a punishment. In Eng- 
 land, when waifs are first seized by somebody other than 
 the owner, the title vests in the crown; but if first seized 
 and reclaimed by the owner he does not forfeit his title. 
 When the title does pass to the crown, the owner may re- 
 gain his goods by following and capturing the thief, or by 
 furnishing evidence sufficient to cause his conviction after 
 capture. If the thief conceals the goods, or does not take 
 them with him in his flight, they are not waifs and the 
 owner may have them again at his pleasure. 
 
 The goods of a foreign merchant, though stolen and 
 waived in flight by the thief, are not deemed waifs or bona 
 waviata; the reason whereof, suggested by Blackstone, be- 
 ing, "not only for the encouragement of trade, but also be- 
 cause there is no willful default in the foreign merchant's 
 not pursuing the thief; he being generally a stranger" to 
 the laws, usages, and language of England. 
 
 In this country, it is generally held that waifs pass to 
 the state in trust for the true owner, who may regain his 
 property by making due proof of his rights.^* 
 
 13 Black. Com. (Cooley's Ed.) p. 297, and notes; 2 Id. p. 409; 
 Kent, Com. p. 359; 2 Sch. Pers. Prop. p. 9; And. L. Diet "Waifs;" 
 Bouvier L. Diet. "Waifs." 
 
58 RECLAMATION OP ANIMALS. [§ 37. 
 
 § 37. Reclamation of animals ferae naturae. — Another 
 mode of obtaining title to personal property by original ac- 
 quisition, through occupancy, is by reclaiming animals wild 
 by nature, fera natures. Wild animals belong to nobody 
 in particular; yet they become the qualified property of 
 any one who subjects them to his possession or power. The 
 qualified property thus acquired continues in the captor 
 while possession or control is maintained, or until the ani- 
 mal becomes so far domesticated that it will not voluntarily 
 leave without the animus revertendi. When this point is 
 reached the qualified, has ripened into alsolute, property, 
 the nature of the animal being changed from fers natures 
 to domita natures, wild to tame. Until thus changed, and 
 while in the possession or power of the captor, his qualified 
 property will be fully under the cognizance and protection 
 of law; but if the animal escape and regain its natural free- 
 dom, without the animus revertendi, the captor's title is 
 wholly lost, and any other person may rightfully talie the 
 fugitive, thereby acquiring the same qualified property pos- 
 sessed by the first captor; and so on indefinitely.^* 
 
 Some text writers have suggested a practical difficulty 
 in drawing the dividing line between the two classes of ani- 
 mals, wild and tame ; and there has been some controversy 
 among distinguished publicists respecting the origin of the 
 distinction. By some it is claimed that all animals are by 
 nature wild and free ; the mild and docile character of those 
 classed as tame being the natural efEect of their subjuga- 
 tion and bondage to men ; while others insist that wild and 
 savage animals are by nature mild and tame, their wild and 
 ferocious disposition being due to the violent and inhuman 
 treatment of man. 
 
 1*2 Black. Com. (Cooley's Ed.), pp. .390-395, and notes; Id. 
 p. 404; 2 Kent, Com. pp. 348-350; 1 Sch. Pers. Prop. pp. 77-83; 
 Williams, Pers. Prop. pp. 19, 20; And. L. Diet "Animal." 
 
§ 37.] RECLAMATION OP ANIMALS. 59 
 
 These speculations are of little or no practical value; 
 facts and experience far outweigh theories. Prom a remote 
 age of the world two classes of animals, wild and tame, 
 have been universally recognized ; and there ought not to be 
 any serious embarrassment in marking the division line be- 
 tween them. Animals that are generally found living con- 
 tentedly in and about the dwellings of man, or grazing in 
 his fields, and that minister to his pleasure or profit, such 
 as dogs, horses, sheep, oxen, and other- cattle, are classed as 
 tame or domestic by common and unquestioning consent. 
 While animals of a predatory or ferocious character, that 
 run at large in fields and forests, and never visit the abodes 
 or haunts of men except on stealthy and mischievous ex- 
 cursions, or on bold raids in quest of prey, are known and 
 classed as wild without doubt or hesitancy. Belonging to 
 the latter class there are, however, some of an exceptionally 
 mild type that frequently become domesticated, and hence 
 absolute property in their owners; among which are deer, 
 hares, rabbits, and others of like character.^" 
 
 Doves are also classed as animals fercz natures. As such 
 they are not the subject of larceny, except when in the care 
 and custody of the owner.^° 
 
 Honey-bees are ferce natures; but, when reclaimed and 
 hived, they become the subjects of qualified property. But 
 the finding of a bee-tree on the land of another, and mark- 
 ing it does not give title to the finder. If bees when hived 
 escape, or a swarm departs from the hive, the owner does 
 not lose his property in them so long as he pursues and is 
 able to identify them.^' 
 
 IB Citations supra, and Manning v. Mitcherson, 69 Ga. 447, 
 47 Am. Rep. 764; Amory t. Flyn, 10 Johns. 102. 
 
 J« (Jommonwealth v. Chace, 9 Pick. 15. 
 
 "Kent, Com. p. 350; 2 Black. Com. (Cooley's Ed.), p. 393; 
 1 Sch. Pers. Prop. p. 83; Gillet v. Mason, 7 Johns. 16; Furgeson 
 
60 , TITLE BY ACCESSION. [§ 38. 
 
 Although some animals feres naturae may be the subject 
 of ownership, so as to give civil remedies, yet another is not 
 criminally liable, who molests them, for the reason that 
 they are considered of too base a nature. Sables, ferrets 
 and coons have been included in this class.^* A better 
 rule is to refer such cases, to the test of money value, as in 
 other instances of stealing. In some states a dog has not 
 been considered the subject of larceny. But in New York, 
 it has been held otherwise.^' 
 
 While property in wild animals can be acquired only by 
 occupancy, actual or constructive, an actual taking is not 
 always necessary to create title ; it is sufficient if the pursuer 
 bring the animal within his power or control.^" 
 
 § 38. Title to personal property by accession. — ^Falling 
 under the second subdivision of original acquisition, is title 
 by accession. Chancellor Kent, following the French and 
 Louisiana Codes, defines the right of accession "to be the 
 right to all which one's own property produces, whether 
 that property be movable or immovable, and the right to 
 that which is united to it by accession, either naturally or 
 artificially." This definition is sufficiently accurate and 
 comprehensive for practical purposes ; and a better it would 
 be difficult to formulate. It embraces fruits of the earth, 
 the increase of animals, and materials of one person united 
 to the materials of another. 
 
 V. Miller, 1 Cow. 243; Idol v. Jones, 2 Dev. (N. C.) L. 162; State 
 V. Murphy, 8 Blackf. 498; GofE v. Kilts, 15 Wend. 550. 
 
 18 State V. Lyman, 26 Ohio St. 400; Ward v. State, 48 Ala. 161; 
 State V. Doe, 79 Ind. 9; Mullaly v. People, 86 N. Y. 365. 
 
 18 Warren v. State, 1 Greene (Pa.) 106; State v. House, 65 N. 
 C. 315. 
 
 20 1 Sch. Pers. Prop. p. 80; 2 Kent, Com. pp. 349, 350; Pierson 
 V. Post, 3 Cai. Cas. 175; Buster v. Newkirk, 20 Johns. 75; Mul- 
 lett V. Bradley, 24 Misc. (N. Y.) 695. 
 
§ 39.] FRUITS OF THE EARTH. 61 
 
 Confusion of goods, though differing somewhat from ac- 
 cession proper, and sometimes treated separately, is near 
 of kin to accession, and may conveniently be discussed in 
 the same connection."^ 
 
 § 39. Fruits of the earth. — ^It is a familiar doctrine that 
 the fruits of the earth, whether produced naturally or by 
 human industry, belong generally to the owner of the soil, 
 and this doctrine rests upon the right of accession. 
 
 The same rule applies to trees, plants, and seeds, set out 
 or sown on land, whether by the owner or some other per- 
 son; excepting, however, trees and plants placed tempor- 
 arily in the soil of another by his consent, with the privilege 
 of removal at pleasure. 
 
 Under sanction of this general doctrine, it has been held, 
 that a party in possession of land, claiming adversely, may 
 pass the legal title to the crops raised thereon by him, as 
 against the true owner of the land who is out of posses- 
 sion.^" 
 
 § 40. Increase of animals. — Of tame or domestic ani- 
 mals, the offspring belong to the dam or mother, by the law 
 of accession. The maxim partus sequitur venfrem applies 
 to the brute creation, both under the English, and the civil, 
 law, but not, generally, to the human species. Under the 
 Eoman law, however, and also by the slave code formerly 
 existent in the United States, the maxim was applied to the 
 
 212 Kent, Com. pp. 361-365; French Code, Civil, Nos. 546, 547; 
 Civil Code of La. art. 490, 491; 2 Black. Com. p. 405; 2 Sch. Pars. 
 Prop. pp. 31-40; Bouv. L. Diet. "Accession." 
 
 22 Citations supra; and Johnson v. Hunt, 11 Wend. 135; Fryatt 
 v. Sullivan Co., 7 Hill, 529; Gallup v. Josselyn, 7 Vt. 334; Ricketts 
 V. Dorrell, 55 Ind. 470; Stockwell v. Phelps, 34 N. Y. 363; Martin 
 V. Thompson, 62 Cal. 618, 45 Am. Rep. 663; Lindsay v. Winona 
 & St. Peter R. R., 29 Minn. 411, 43 Am. Rep. 228. 
 
62 MATERIALS UNITED. [§ 41. 
 
 children of slave mothers; and for the reason, doubtless, 
 that In contemplation of these laws slaves were chattels. 
 The reason of the rule as applied to the brute creation is, 
 according to Puffendorf, that the male is frequently un- 
 known, and that the dam during pregnancy is almost use- 
 less to the proprietor, while having to be maintained at his 
 expense; and, therefore, "as her owner is the loser by her 
 pregnancy, he ought to be the gainer by her brood." 
 Blackstone mentions an exception to the rule in question in 
 the case of young cygnets, which belong equally to the 
 owner of the cock and hen; and this because the male is 
 well known by his constant association with the hen, t.nd 
 the owner of one does not suffer more than the other during 
 pregnancy and nurture; and hence, as the reason of the 
 rule ceases in this case, the rule itself ceases, the maxim 
 being cessante ratione legis cessat et ipsa lex. 
 
 The rule in question applies, also, to the hirer of do- 
 mestic animals for a limited period, he being entitled to 
 their increase during the demise.^' 
 
 § 41. Materials of one person united to the materiab 
 of another. — The general doctrine on this variety of ac- 
 cession commonly found in our text-books is, that where 
 the materials of one person are united to the materials of 
 another, by the labor of the latter, who furnishes the 
 principal materials, the property in the joint product is in 
 the latter by right of accession. 
 
 "While this statement of the law is correct as far as it 
 goes, a more comprehensive statement of the general doc- 
 trine may be formulated thus: "Where materials are fur- 
 
 23 2 Black. Com. p. 390 ; 2 Kent, Com. pp. 361, 362 ; 1 Sch. Pers. 
 Prop. 79; Droit Nat. Lib. 4, ch. 7, 5 4; Inst. 2, 1, 37; Wood v. Ash, 
 Owen's Rep. 139; Putnam v. Wiley, 8 Johns. 432; Stewart v. Bell, 
 33 Miss. 154; Concklin v. Havens, 12 Johns. 314. 
 
§ 41.] MATERIALS UNITED. 63 
 
 nished by one person, or several, and are united by the labor 
 of another, the joint product will, in the absence of any 
 agreement, belong to the contributor of the most important 
 or valuable constituent, whether it be materials or labor. 
 The word "accession" fairly implies a drawing of the less 
 to the greater. 
 
 In many of the reported cases, however, the skill of the 
 artist, or labor of the manufacturer, is not weighed as 
 against the materials, because the latter are delivered to the 
 former to be wrought into a chattel, on a bailment or other 
 contract ; and in doubtful cases of fact, which doctrine shall 
 apply and govern, contract or accession, will depend upon 
 the intention of the parties. But, that under the doctrine 
 of accession the value of the skill or labor contributed to 
 the joint product may constitute the principal element, and 
 carry the ownership, there can, on principle, be no reason- 
 able doubt. 
 
 This view is in accordance with the Roman law which, in 
 case of a fine painting on canvas, deemed the latter the 
 accessory, and awarded the picture to the artist by right of 
 accession. Mr. Kent suggests that the Koman law on this 
 point was inconsistent, in holding that the same rule did 
 not apply to a poem or history, but gave the joint product 
 to the person furnishing the paper or parchment. But 
 Blackstone's comment upon the rule of the Roman law in 
 question seems to relieve it from inconsistency. After stat- 
 ing the rule involving the supposed inconsistency; he adds, 
 "meaning thereby the mechanical operation of writing, for 
 which it directed the scribe to receive a satisfaction ; for in 
 works of genius and invention, as in painting on another 
 man's canvas, the same law gave the canvas to the painter." 
 This explanation vindicates the consistency of the Roman 
 law, and at the same time recognizes the just rule that the 
 
64 MATERIALS UNITED. [§ 41. 
 
 minor contributor is not denied compensation for his labor 
 or materials.^* 
 
 The rule that the most important or valuable constituent 
 of the combination draws to itself as accessories all the 
 others, finds illustration in the case of building materials 
 furnished by one person, and by him wrought into a house 
 on the land of another. In such case, under the combined 
 operation of personal, converted into real, property, and the 
 right of accession, the materials will belong with the house 
 to the owner of the land, provided the building be of such 
 a character as to make it part of the realty. Generally, 
 however, the builder is entitled to compensation for his ma- 
 terials and labor, either by express or implied contract. 
 
 Title is also gained by a confusion of goods. A confusion 
 exists when there is such a mixture of the goods of two or 
 more persons that the goods cannot be distinguished. If 
 this is by mutual consent of the owners, the interest of each 
 in the mixture is in proportion to his share. But if the 
 confusion is caused by the willful act of one party, without 
 the other's consent, the one causing the mixture must sep- 
 arate the goods at his peril and he must bear the whole 
 loss.^° 
 
 The doctrine is sometimes laid down without qualifica- 
 tion, that where the materials of one person are converted 
 by another into a new species of chattel, and the identity 
 of the materials destroyed, the new product belongs to the 
 transformer ; as where wine, oil, or bread, is made out of an- 
 
 2* Citations supra, under § 38; Pulcifer v. Page, 32 Me. 404; 
 Merritt v. Johnson, 7 Johns. 473; Betts v. Lee, 5 Johns. 338; Ste- 
 vens T. Briggs, 5 Pick. 177; Gregory v. Stryker, 2 Den. 628; E&ton 
 V. Munroe, 52 Me. 63. 
 
 2s Merritt v. Johnson, 7 Johns. 473; Silshury v. MoCoon, 6 Hill, 
 425. 
 
§ 41.] MATERIALS UNITED. 65 
 
 other's grapes, olives, or wheat.^' But the rule thus 
 broadly stated needs qualification. The true doctrine, the 
 writer thinks, is pronounced by the Court of Appeals of 
 New York, in the case of Silsbury v. McCoon. The question 
 is there thoroughly discussed by several of the judges ; and 
 the report gives also, the very learned and elaborate argu- 
 ment of that eminent lawyer, the late Nicholas Hill, of 
 counsel for the plaintiffs in error. The reporter's head 
 notes bearing upon this question, are as follows: "If a 
 chattel wrongfully taken retains its original form and sub- 
 stance, or may be reduced to its original materials, it be- 
 longs to the original owner; and this rule, it seems, holds 
 against an innocent purchaser from the wrong-doer, with- 
 out regard to the increased value bestowed by him upon the 
 chattel. 
 
 "But if the chattel be converted by an innocent pur- 
 chaser or holder into a thing of a different species, as whero 
 wheat is made into bread, olives into oil, or grapes into 
 wine, the original owner cannot reclaim it. 
 
 "There is no such distinction, however, in favor of a will- 
 ful wrong-doer. He can acquire no property in the goods 
 of another by any change wrought in them by his labor 
 or skill, however great the change may be, provided the 
 article was made from the original material. There is no 
 difference between the civil and the common law in this 
 respect." 
 
 That a person cannot acquire title by a wiUful tort, as 
 against the true owner, is not only just iu itself, and in 
 harmony with the general doctrines and spirit of the law, 
 but is sanctioned by numerous adjudications.'" 
 
 2«2 Kent, Com. pp. 364, 365; 2 Black. Com. p. 405; Silsbury v. 
 McCoon, 6 Hill, 425, 3 N. Y. 379. 
 f Citations supra; Brown v. Sax, 7 Cow. 95; Curtis v. Groat, 
 
 5 
 
66 PRODUCTS OF intejjLECtual labor. [§ 42. 
 
 § 42. Products of intellectual labor. — These constitute 
 the third division of the first general way of acquiring title 
 to personal property, that of original acquisition; and em- 
 brace patents for inventions and designs, copyrights, let- 
 ters addressed from one correspondent to another, lectures 
 and telegrams. 
 
 The general doctrine in regard to proprietary rights in 
 the products of intellectual labor is, that every one has a 
 natural right to, and dominion over, his own ideas and the 
 fruits of his brain-work; he may keep them to himself or 
 impart them to others at his option ; but when once volun- 
 tarily published by him, in the absence of statutory provi- 
 sions for their protection, they are beyond his control, and 
 become the property of the public, equally available to all. 
 Hence, for the purpose of promoting science, encouraging 
 literature, and stimulating inventions, legislation is invoked, 
 by which the natural rights of authors and inventors are 
 protected, and the public at the same time benefited by 
 their genius.^' 
 
 § 43. Patents for inventions and designs. — The prac- 
 tice of patent law is generally a specialty, confined to a few 
 members of the profession. A thorough knowledge of the 
 
 6 Johns. 169; Chaadler v. Edson, 9 Johns. 362; Betts et al. v 
 Lee, 5 Johns. 348; Babcock v. Gill, 10 Johns, 287; Baker v 
 Wheeler, 8 Wend. 505, 508; Hyde v. Cookson, 21 Barb. 92; Eaton 
 V. Munroe, 52 Me. 63; Riddle v. Driver, 12 Ala. 590; Strubee v.* 
 Cincinnati So. Ry. Trustees, 78 Ky. 481, 39 Am. Rep. 251; Wether- 
 bee V. Green, 22 Mich. 311; Clark v. Griffith, 24 N. Y. 595; Sam- 
 son V. Rose, 65 N. Y. 411; Newton v. Potter, 69 N. Y. 137; Holmes 
 V. Gilman, 138 N. Y. 377. 
 
 28 2 Kent, Com. pp. 365, 366; 2 Black. Com. p. 406; 1 Sch. Pera 
 Prop. p. 654; 2 Id. p. 29; Williams, Pers. Prop. p. 235 et seq., 
 Goodeve, Pers. Prop. pp. 180, 181; Bell's Princp. § 1349; Phillip^ 
 Pat. ch. 11; Drone, Copyr. p. 1 et seq.; Bouv. L. Diet. "Patent,* 
 "Copy-right;" Curtis, Pat (3d Ed.) preliminary obs. 
 
§ 43.] PATENTS. 67 
 
 subject is essential to the successful practitioner; and such 
 a knowledge can be acquired only by a careful study of the 
 text-books, statutes, and adjudications relating exclusively 
 to the law of patents. It will not, therefore, be attempted 
 in this treatise to do more than give an outline view of the 
 subject, showing the nature, and mode of obtaining, a 
 patent, and the general principles and rules applicable to 
 this species of personal property. 
 
 A patent is concisely and accurately defined to be "a 
 g rant by the state of the exclusive privilege of making , 
 using, and vending, and authorizing others to make, use, 
 a nd vend, an invention . ' ' ** The gr ant by government i s 
 upon c ertain conditi ons; the grant on one s ide, an d a com- 
 plianc e with the conditions on the other, constituting i n 
 eff ect a. contrac t. In consideration of the probable benefits 
 that may accrue to the public from a knowledge and use of 
 a patentable invention, and also with the view of stimulat- 
 ing and fostering inventive genius, the state offers to the 
 inventor its guaranty of an exclusive right to his invention 
 for a limited period, on condition that he wiU publish it in 
 such a manner that it may become available to the public 
 at large on the expiration of his exclusive term, and on 
 certain other prescribed conditions. Under this govern- 
 mental guaranty, the inventor retains his exclusive right 
 after publication for the stipulated term, and has a prop- 
 erty therein which is under the protection of the law as 
 fuUy as any property to which he may have title. 
 
 In the United States, Great Britain, and a majority of 
 foreign states, the subject of patents is regulated by statute, 
 and in most, if not all, foreign states having no legislation 
 on the subject, special privileges are granted to inventors 
 
 2» i Kent, Com. p. 366; Phillips, Pat. p. 2. 
 
68 ESSENTIALS. • [§44. 
 
 throngli the executive departments of tlieir respective gov- 
 emments.^' 
 
 The authority for patent legislation in the United States 
 is derived from the Federal Constitution, which confers 
 upon Congress the power: "To promote the progress of 
 science and useful arts, by securing for limited times to 
 authors and inventors the exclusive right to their respec- 
 tive writings and discoveries."'^ Under this provision of 
 the Constitution acts of Congress have been passed from 
 time to time, culminating in the act of revision and con- 
 solidation passed July 8, 1870.^^ 
 
 § 44. Essentials of a patentable invention or discov- 
 ery. — To entitle a person to the privileges and protection 
 offered by the government, he must, first of aU, present a 
 patentable invention or discovery. The essentials of such 
 invention or discovery, under the laws of the United States, 
 are as follows : 
 
 1. The alleged invention or discovery must be new, "not 
 known or used by others in this country." Novelty is es- 
 sential; and it is new in contemplation of the patent law 
 when, and only when, it is substantially different from what 
 has been known to precede it.^' 
 
 In determining the question of novelty, the character of 
 the result, and not the apparent amount of skill, ingenuity, 
 or thought, exercised by the inventor, is the controlling 
 consideration. If the result, or the mode of producing the 
 result, be substantially different from what has gone be- 
 fore, the requisite of novelty is so far satisfied.'* 
 
 80 Whitman, Pat. Law, Part 11. 
 »i U. S. Const, art I, sec. 8. 
 
 82 U. S. Rev. St. (2 Ed.), §§ 4883-4947; citations supra under 
 § 42. 
 38 U. S. Rev. St. (2 Ed.), § 4886. 
 84 Curtis, Pat. § 41; Kneass v. The Schuylkill Bank, 4 Wash. 
 
§ 44.] "essentials. 69 
 
 The invention must be new as to all the public; not the 
 abstract discovery merely, but the concrete invention ; not 
 the newly-discovered principle resting in the brain of the 
 discoverer, but the principle embodied and utilized in an 
 "art, machine, manufacture, or composition of matter."*' 
 
 Moreover, the embodied result of the alleged invention 
 or discovery must be new, and not merely the purpose to 
 which it is applied, constituting what is known as " a double 
 use. ' ' Illustrating this essential of novelty, Buller, J., said, 
 "it would be a very extraordinary thing to say that, ail 
 mankind having been accustomed to eat soup with a spoon, 
 a man could take out a patent because he says you might 
 eat peas with a spoon." " 
 
 2. Another requisite of a patentable invention is utility. 
 It must be both new and useful. The degree of utility, 
 however, is not important; but the invention must have, at 
 least, a small measure of usefulness. Inventions of a mis- 
 chievous or immoral nature, and such as are wholly useless, 
 are not patentable. For illustration, in 1870, an applica- 
 tion was made for letters patent for "a new process of 
 making butter, to be used in the place of ordinary butter. ' ' 
 The process of manufacture described by the applicant con- 
 sisted in taking about ten pounds of ordinary butter, and 
 
 9, 11; Davis v. Palmer, 2 Brock. 298, 310; Hall v. Wiles, 2 Blatchf. 
 194-200; Ryan v. Goodwin, 3 Sum. 514, 518; Foote v. Sllsby, 2 
 Blatchf. 260; Crane v. Price, Webs. Pat. Cas. 409. 
 
 35 Washburn v. Gould, 3 Story, 122; Reed v. Cutter, 1 Id. 590; 
 Woodcock V. Parker, 1 Gall. 438; Lowell v. Lewis, 1 Mass. 182; 
 Allen v. Blunt, 2 Woodb. & M. 121; Parker v. Ferguson, 1 Blatchf. 
 407; EUithorp v. Robertson, 4 Id. 307; Manny v. Jagger, 1 Id. 372; 
 Parkhurst v. Kinsman, Id. 488; Goodyear v. Day, 2 Wall. Jr. 283; 
 Colt V. Mass. Arms Co., 1 Fish. 108. 
 
 asLosh V. Hague, 1 Web. Pat. Cass. 207; Benton v.'Hawkes, 4 
 B. & Aid. 540, 550; Bean v. Smallwood, 2 Story, 408; Hotchkiss 
 r. Greenwood, 11 How. 248. 
 
70 ESSENTIALS. [§ ii. 
 
 washing it in clear lime water; next, warming the butter 
 and mixing it with sweet milk and flour into paste; and 
 then coloring it with eggs, carrot, or annotta and tumeric ; 
 thus increasing the weight of the compound to eighteen 
 pounds of "prime dairy iutter." The application was re- 
 jected as not possessing the patentable requisite of utility.'^ 
 
 3. To be patentable, the invention must not have been 
 Imown or used by others in this country. The applicant 
 for a patent must have been not only an original, but the 
 first inventor; that is, the first inventor who has reduced 
 his invention to a practical condition. The statute on the 
 subject contemplates a knowledge and use existing in a 
 form and condition accessible to the public ; and, therefore, 
 a machine constructed for experiment merely, and not 
 completed or practically tested, is no bar to a patent for a 
 perfected practical invention.'* 
 
 Two persons may have conceived the same machine, each 
 being an original inventor; but the one who first reduces 
 his coijception to practice, or to a condition in which it 
 may be utilized for its purpose, is the first inventor, and 
 entitled to a patent. In such case the maxim applies, "Qui 
 prior est in tempore, prior est in jure."^' 
 
 4. To entitle an applicant to a patent, the invention 
 
 37 Curtis, Pat. § 106; Bedford v. Hunt, 1 Mason, 301, 303; Whit- 
 ney V. Bmmett, 1 Baldw. 303; Manny v. Jagger, supra; Stanley 
 V. Whipple, 2 McLean, 35; Wintermute v. Reddington, 1 Fish. 
 239; Page v. Ferry, Id. 298. 
 
 38 Reed V. Cutter, Woodcock v. Parker, Lowell v. Lewis and 
 Washburn v. Gould, supra; Cahoon v. Ring, 1 Cllffl. 592 ; Teese v. 
 Phelps, 1 McAU. 48; and Ellithorp v. Robertson, Parkhurst v. 
 Kinsman, Goodyear v. Day, supra. 
 
 38 Citations supra; Allen v. Hunter, 6 McLean, 303 ; Cox v. 
 Griggs, 2 Fish. 174; Many v. Sizer, 1 Id. 17; Singer v. Walmsley, 
 Id. 558; Matthews t. Skates, Id. 602; Rich v. Lippincott, 2 Id. 1; 
 Johnson v. Root, Id. 291. 
 
§ 44.] ESSENTIALS. 71 
 
 must not have been "patented or described in any printed 
 publication in this or any foreign country, before his inven- 
 tion or discovery thereof, and not in public use or on sale 
 for more than two years prior to his application, unless the 
 same is proved to have been abandoned." *" 
 
 The language of the statute is, be it noted, "before his 
 invention or discovery," and not before his application for 
 a patent. It may well happen that a foreign patent, or 
 the publication mentioned in the statute, ante-dates the 
 application, but not the invention; the former of which the 
 courts say is not sufficient to bar or invalidate a patent. It 
 is also held, that to give effect to the "printed publication" 
 mentioned in the statute, the description therein of the in- 
 vention must have been so full, clear and accurate, that 
 from it a competent mechanic, instructed in the business 
 to which it relates, could embody and utilize its principles 
 in a practical manufacture.*^ 
 
 The "two years" clause in the statute is a recognition 
 and embodiment of a provision first introduced into our 
 system of patent law by an act of Congress passed in 1839. 
 Prior to that act, if an inventor consented to the public 
 use of his invention at any time before application for a 
 patent, however limited such use, he might forfeit his right 
 to a patent. Now, he may experiment himself in private 
 or public, and permit others to use his invention during 
 the "two years," without losing his right, provided it does 
 not appear that he intended to abandon his invention, or 
 dedicate it to the public.*^ 
 
 *oU. S. Rev. Stat. (2 Ed.), § 4886. 
 
 *i O'Reilly V. Morse, 15 How. 62; Smith v. Ely, Id. 137; Parker 
 V. Stiles, Id. 44; Judson v. Cope, 1 Fish. 615; Hays v. Sulsor, Id. 
 532; Bartholomew v. Sawyer, Id. 516; White v. Allen, 2 Fish. 440 
 
 <2 McCormick v. Seymour, 2 Blatchf. 240, 16 How. 480, and 19 
 How. 96; Root v. Ball, 4 McLean, 177; Sanders v. Logan, 2 Pish. 
 167; Bell v. Daniels, 1 Id. 372; Hovey v. Henry, West. Law J. 153. 
 
72 VALID PATENT. [§ 45. 
 
 § 45. Mode of obtaining, and conditions, of a valid pat- 
 ent. — If the iavention be patentable within the rules now 
 stated, and the inventor wishes to obtain letters patent 
 therefor, he must make application to the commissioner of 
 patents in the manner prescribed by statute. The applica- 
 tion must be accompanied by a written description of the 
 invention, "and of the manner and process of making, con- 
 structing, compounding, and using it, in such full, clear, 
 concise, and exact terms as to enable any person skilled in 
 the art or science to which it appertains, or with which it 
 is most nearly connected, to make, construct, compound, 
 and use the same ; and in case of a machine, he shall explain 
 the principle thereof, and the best mode in which he has 
 contemplated applying that principle, so as to distinguish 
 it from other inventions; and he shall particularly point 
 out and distinctly claim the part, improvement, or com- 
 bination which he claims as his invention or discovery."** 
 
 "When the subject of the invention is a composition of 
 matter, the applicant, when required by the commissioner, 
 must furnish specimens of ingredients, and of the compo- 
 sition, sufficient in quantity for the purpose of experi- 
 ment." 
 
 In cases which admit of representation by model, the 
 applicant, if required by the commissioner, shall furnish 
 one of convenient size to exhibit advantageously the several 
 parts of the invention or discovery; and when the nature 
 of the case admits of drawings, the applicant must furnish 
 a copy to be filed in the patent ofSce; and a copy of these 
 is issued with the patent when granted, and forms part of 
 the specification.*" 
 
 *3U. S. Rev. St. (2 Ed.), § 4888, and cases there cited, 
 "tr. S. Rev. St. (2 Ed.), § 4890. 
 
 «tr. S. Rev. St. (2 Ed.), § 4891; Hogg v. Emmerson, 6 How. 
 437; McCormick v. Talcott, 20 Id. 409. 
 
§ 45.] VALID PATENT 73 
 
 There are other conditions precedent to the issuance of 
 letters patent, but these are the most important. Their 
 purpose is, to render the invention available to the public 
 on the expiration of the patent; and hence the requisite 
 of a specification from which alone the invention could be 
 constructed and used. The benefit to the public constitutes 
 the principal consideration of the grant, and a want or 
 failure of consideration would invalidate the patent. It is 
 of special moment that the inventor's claim be intelligently 
 and carefully stated in the specification. It should be as 
 broad as the invention, but no broader; should clearly dis- 
 criminate between the old and the new; must not contain 
 statements intended to deceive the public; and should be 
 free from ambiguity. A mistake in any of these particu- 
 lars would be dangerous, and might vitiate the grant. 
 
 An applicant with a patentable invention, or one that 
 the officials at the patent office regard as patentable, having 
 complied with all the conditions prescribed by the govern- 
 ment, is entitled to letters patent, granting to him, "his 
 heirs or assigns, for the term of seventeen years, the exclus- 
 ive right to make, use, and vend the invention or discovery 
 throughout the United States, and the Territories there- 
 of. "« 
 
 Patents thus granted are prima facie valid ; but in an ac- 
 tion for infringement, the defendant may defeat the plaint- 
 iff by showing the invalidity of the grant on either of the 
 following grounds :" 
 
 First. "That for the purpose of deceiving the public the 
 description and specification &ted by the patentee in the 
 
 «U. S. Rev. St. (2 Ed.), § 4884, and cases there cited. 
 
 47 Curtis, Pat. § 472; Alden v. Dewey, 1 Story, 336; Woodworth 
 V. Sherman, 3 Id. 172; Stearns v. Barrett, 1 Mason, 153; Minter v. 
 Wells, Webs. Pat. Cas. 129; Phila. & Trenton R. Co. v. Stimpson, 
 14 Pet 458; U. S. Rev. St. (2 Ed.), § 4920, and cases there cited. 
 
74 OTHER POINTS OF PATENTS. [§ 46. 
 
 patent office was made to contain less than the whole truth 
 relative to his invention or discovery, or more than is nec- 
 essary to produce the desired effect; or, 
 
 Second. "That he had" surreptitiously or unjustly ob- 
 tained the patent for that which was in fact invented by 
 another, who was using reasonable diligence in adapting 
 and perfecting the same ; or. 
 
 Third. "That it had been patented or described in some 
 printed publication prior to his supposed invention or dis- 
 covery therof ; or. 
 
 Fourth. "That he was not the original and first inventor 
 or discoverer of any material or substantial part of the 
 thing patented; or, 
 
 Fifth. ' ' That it had been in public use or on sale in this 
 country for more than two years before his application for 
 a patent, or had been abandoned to the public." 
 
 Unfortunately for sanguine inventors, many patents are 
 issued that will not bear the test of a thorough judicial in- 
 vestigation. 
 
 § 46. Other points in the law of patents. — There may 
 be granted for the term of three years and six months, for 
 seven years, or for fourteen years, as the applicant may 
 elect, patents for designs ; and all the regulations and pro- 
 visions of the statutes in relation to obtaining or protect- 
 ing patents for inventions or discoveries will apply to 
 patents for designs so far as the same may be applicable 
 thereto, and not inconsistent with other provisions of the 
 statutes.*' 
 
 A patent for a new and useful improvement of an "art, 
 machine, manufacture, or composition of matter," may be 
 granted with the same rights, and under the same rules 
 
 «XJ. S. Rev. (2 Ed.), §§ 4929-4993. 
 
§ 46.] OTHER POINTS OP PATENTS. 75 
 
 and conditions, as for an original; but if the original be 
 patented, the patentee of the improvement does not, by his 
 grant, acquire any right in the former patent ; nor does the 
 patentee of the original, by virtue of his patent, acquire 
 any right in or to the patented improvement.** 
 
 There may, also, be a valid patent for a combination of 
 several things, whether the constituents of the combination 
 are, or are not, separately patented. The patent, be it 
 noted, is for the combination, and not for any or all of its 
 elements separately. As the combination patented consists 
 in the union of a certain number of things, a union of less 
 than the prescribed number does not constitute the com- 
 bination, and is not protected by the patent; nor does the 
 use of one or more of the constituent elements, less than 
 the whole number forming the combination, constitute an 
 infringement of the patent. If a patent for any of the ele- 
 ments be held by another, the patentee of the combination 
 does not, by virtue of his grant, acquire any right in such 
 other patent ; nor does the patentee of the element, by vir- 
 tue of his patent, acquire any right to use the patented 
 combination.'"' 
 
 A patent is property, and the owner has the same right 
 to dispose of it as have the owners of any other species of 
 personal property. He may assign it in whole or in part, 
 for all or a portion of the territory covered by it, thus 
 giving the assignee a right in the patent itself ; or he may 
 
 4»U. S. Rev. St. (2 Ed.), § 4886; Curtis, Pat §§ 35, 42; Rex v. 
 Arkwright, Webs. Pat. Cas. 71, 72, 73; Kneass v. The Schuylkill 
 Bank, 4 Wash. 9, 11; Whitney v. Emmett, 1 Baldw. 303; Pitts v. 
 Wemple, 6 McLean, 558; Woodworth v. Rogers, 3 Woodb. & M. 
 135. 
 
 sol Curtis, Pat. §§ 111, 332; Buck v. Hermance, 1 Blatchf. 398; 
 Forbush v. Cook, 20 Law R. 664; Barrett v. Hall, 1 Mason, 447; 
 Pitts T. Whitman, 2 Story, 609; Lee v. Blandy, 2 Fish. 89; Pitts 
 V. Wemple, 6 McLean, 558. 
 
76 COPYRIGHT. [§ 47. 
 
 grant special licenses under it, giving the licensee the privi- 
 lege of making, using, or selling the invention, on payment 
 of a royalty. 
 
 For infringement of a valid patent the law affords ample 
 remedies in the Federal Courts, by actions at law, suits in 
 equity, and injunctions."^ 
 
 There are other questions connected with the law of pa- 
 tents; but they are not essential to a general view of the 
 principles involved in the subject, and are omitted from 
 this discussion for the same reasons stated supra under 
 § 43. 
 
 A few, only, of the numerous authorities on the subject 
 of patent law have been cited in the outline view now pre- 
 sented. 
 
 § 47. Copyright. — This product of intellectual labor 
 furnishes another instance of title to personal property by 
 original acquisition. " Copyright is the exclusive right of 
 the owner to multiply a nd to dispose of copies of an in - 
 te llectual production . It is the sole right to the copy or to 
 copy it."°^ Otherwise stated it "is the exclusive right of 
 the owner to possess, use, and dispose of intellectual pro- 
 ductions," which have the attributes of property "when 
 embodied in written or spoken language." "^ 
 
 The nature and source of this right have been the subject 
 of much learned discussion; the principal question being 
 its source, whether a natural right recognized and protected 
 by the common law, or a statutory grant ; and if the form- 
 er, whether the right is lost by publication, or destroyed by 
 statute."* The limited scope of this work will not permit 
 
 81 U. S. Rev. St. (2 Ed.) §§ 4919, 4992; Curtis, Pat. §§ 494-499. 
 02 Drone, Copyr. pp. 100, 101; Williams, Pers. Prop. p. 246. 
 63 Drone, Copyr. pp. 97, 98. 
 04 Drone, Copyr. pp. 1, 2. 
 
§ 47.] COPYEIGHT. 77 
 
 a presentation of the arguments and authorities pro and 
 conj nor is such a presentation requisite to a correct state- 
 ment of the law of copyright as now settled. A fuU and 
 very able historical and critical discussion of the subject 
 may be found in "Drone on Copyright," to which refer- 
 ence is herein freely made as the best service the author 
 could render his readers. 
 
 It seems quite clear that, prior to the statute of Anne in 
 1710,°° the common law right was unquestioned in Eng- 
 land; and that for half a century thereafter the courts of 
 chancery recognized the right, holding in effect that it was 
 not lost by publication, or destroyed by statute.^* In the 
 case of Miller v. Taylor, decided by the Court of K. B. in 
 1769, the question was thoroughly discussed, and decided 
 in accordance with the opinions of Lord Mansfield and 
 Justices Aston and Willes, sustaining the common law 
 right. Justice Yates dissenting. But five years later the 
 House of Lords decided the question adversely to the Court 
 of K. B., holding that the common law right, if any existed, 
 could not be exercised beyond the time limited by statute.^' 
 
 The English statute was copied by Congress in 1790, 
 and the Supreme Court of the United States, in Wheaton 
 V. Peters,^^ decided in 1834, followed the English case of 
 Donaldson v. Becket. 
 
 It is now the settled doctrine, both in England and the 
 United States, that at common law the author of an un- 
 published literary composition has an absolute property 
 therein. It is personal property, and governed by the same 
 
 ess Anne, Ch. 19. 
 
 69 Drone, Copyr. pp. 1, 54-82; Millar y. Taylor, 4 Burr. 2303. 
 oT Donaldson v. Becket, 4 Burr. 2408; and Drone Copyr. cited 
 supra. 
 68 8 Pet. 591; and see citations supra. 
 
78 STATUTORY EIGHT. [§ 48. 
 
 rules, and entitled to the same protection, as other personal 
 property. But when published in print, the common law 
 right is lost, unless protected by statute ; the author or pro- 
 prietor having then "no exclusive common law right to 
 multiply copies, or to control the subsequent issue of copies 
 by others," the right to multiply copies to the exclusion 
 of others being the creation of statute."' 
 
 Practically, in this country, the proprietary right after 
 publication, namely, the exclusive right to the profits of 
 publication, rests upon, and is regulated and protected by, 
 the acts of Congress. 
 
 § 48. How to secure the statutory right. — The same 
 constitutional provision which gives to Congress jurisdic- 
 tion of the subject of patents, confers upon it authority to 
 legislate on the subject of copyright."' By virtue of this 
 authority Congress has enacted'^ that: "Any citizen of the 
 United States or resident therein, who shaU be the author, 
 inventor, designer, or proprietor of any book, map, chart, 
 dramatic or musical composition, engraving, cut, print, or 
 photograph or negative thereof, or of a painting, drawing, 
 chromo, statue, statuary, and of models or designs intended 
 to be perfected as works of the fine arts, and the execu- 
 tors, administrators, or assigns of any such person shall, 
 upon complying with the provisions of this chapter, have 
 the sole liberty of printing, reprinting, publishing, com- 
 pleting, copying, executing, finishing, and vending the 
 
 OB Drone, Copyr. pp. 101-104; Donaldson v. Becket, 4 Burr 
 2408; Colbum v. Simms, 2 Hare, 543; Jefferys v. Boosey, 4 H. 
 L. C. 962; Prince Albert v. Strange, 2 De G. & Sm. 652; Wheaton 
 V. Peters, 8 Pet. 591; Pulte v. Derby, 5 McLean, 328; Palmer v. 
 De Witt, 47 N. T. 532; Rees v. Peltzer, 75 lU. 475; Boucicault v. 
 Wood, 2 Biss. 34. 
 
 «o U. S. Ck>nst art. I, § 8. 
 
 «iU. S. Rev. St. (2 Ed.), § 4952. 
 
§ 48.] STATUTOBT RIGHT. 79 
 
 same; and, in the case of a dramatic composition, of pub- 
 licly performing or representing it, or causing it to be per- 
 formed or represented by others. And authors may re- 
 serve the right to dramatize or to translate their own 
 works." 
 
 To entitle a person to a copyright he must, 
 
 1. Before publication, "deliver at the office of the li- 
 brarian of Congress, or deposit in the mail addressed to the 
 librarian of Congress, at Washington, District of Colum- 
 bia, a printed copy of the title of the book or other article, 
 or a description of the painting, drawing, chromo, statue, 
 statuary, or a model or design of a work of the fine arts, 
 for which he desires a copyright."'^ 
 
 2. "Not later than the day of the publication thereof in 
 this or any foreign country, deliver at the office of the 
 librarian of Congress, at Washington, District of Colum- 
 bia, two copies of such copyright book or other article ; or 
 in case of a painting, drawing, statue, statuary, model, or 
 design for a work of the fine arts, a photograph of the 
 same.'"' 
 
 3. "The proprietor of every copyright book or other 
 article shall deliver at the office of the librarian of Con- 
 gress, or deposit in the mail addressed to the librarian of 
 Congress at Washington, District of Columbia, not later 
 than the day of the publication thereof in this or any forr 
 eign country two complete printed copies thereof, of the 
 best edition issued, or description or photograph of such 
 article as hereinbefore required, and a copy of every sub- 
 sequent edition wherein any substantial changes shall be 
 made."" 
 
 •2 U. S. Rev. St. (2 Ed.), § 4956. 
 •3 U. S. Rev. St. (2 Ed.), § 4956. 
 •* U. S. Rev. St. (2 Ed.), ! 4959. 
 
80 STATUTOET BIGHT. [§ 48. 
 
 For a failure to comply with either of the last two pro- 
 visions the proprietor of the copyright is liable to a pen- 
 alty of twenty-five dollars."'' 
 
 4. Pay to the librarian of Congress for recording the 
 title or description of any copyright book or other article, 
 fifty cents; and for every copy under seal of such record 
 actually given to the person claiming the copyright, or his 
 assigns, fifty cents.*" 
 
 A compliance with the foregoing conditions secures to 
 the author, inventor, or designer, a copyright for the term 
 of twenty-eight years."' 
 
 And, upon recording the title of the work, or description 
 of the article so secured, a second time, and complying 
 with all other regulations in regard to original copyright, 
 within six months before the expiration of the first term, 
 the author, inventor, or designer, if he be still living and 
 a citizen of the United States or a resident therein, or his 
 widow or children if he be dead, shall have the same ex- 
 elusive right continued for the further term of fourteen 
 years. "And such person shall, within two months from 
 the date of said renewal, cause a copy of the record thereof 
 to be published in one or more newspapers, printed in the 
 United States, for the space of four weeks." "' 
 
 Literary property in unpublished work, being personal, 
 is assignable, and governed by the general rules applica- 
 ble to other personal property."" And copyright is ex- 
 pressly made assignable by statute.'' 
 
 •6 XJ. S. Rev. St (2 Ed.), § 4960. 
 
 •« U. S. Rev. St. (2 Ed.), § 4958. 
 
 «T U. S. Rev. St. (2 Ed.), § 4953. 
 
 •8 U. S. Rev. St. (2 Ed.), § 4954. 
 
 •» Drone, Copyr. p. 104 et seq.; Palmer r. De Witt, 47 N. T. 538; 
 Parton v. Prang, 3 Cliff. 537, 550; Little v. Gould, 2 Blatchf. 165, 
 362. 
 
 '0 U. S. Rev. St. (2 Ed.), § 4955; Stat. 5 & 6 Vict. c. 45, s. 25. 
 
§ 49.] ESSENTIALS TO COPYRIGHT 81 
 
 To entitle the owner to maintain an action for infringe- 
 ment of his copyright, he must "give notice thereof by in- 
 serting in the several copies of every edition published, on 
 the title page or the page immediately following it, if it 
 be a book ; or if a map, chart, musical composition, print, 
 cut, engraving, photograph, painting, drawing, chromo, 
 statue, statuary, or model, or design intended to be per- 
 fected and completed as a work of the fine arts, by inscrib- 
 ing upon some portion of the face or front thereof, or on 
 the face of the substance on which the same shall be 
 mounted, the following words, ' Entered acording to Act of 
 
 Congress, in the year , by A. B., in the office of the 
 
 librarian of Congress, at Washington."^ Or, 'Copyright, 
 ^,by A. B.""=' 
 
 A person inserting or impressing such notice, who has 
 not obtained a copyright, is liable to a penalty of one hun- 
 dred dollars.'* 
 
 § 49. Essentials to copyright. — ^Legislation is silent in 
 regard to the character and qualities essential to copyright, 
 and the law must be sought in judicial records. On several 
 points the courts have spoken, and the following rules may 
 be regarded as established : 
 
 1. Originality. — That originality is essential 'to copyright 
 admits of no reasonable doubt. The constitutional au- 
 thority to legislate on the subject was given to Congress 
 for the purpose of promoting "the progress of science and 
 the useful arts, by securing for limited times to authors 
 and inventors the exclusive right to their respective writ- 
 ings and discoveries.'"* Both the letter and the spirit 
 
 " U. S. Rev. St. (2 Ed.), § 4962. 
 
 72 Drone, Copyr. p. 265, n. 8. 
 
 73 U. S. Rev. St. (2 Ed.), % 4963. 
 
 74 U. S. Const., art. I, § 8; Drone, Copyr. pp. 193-208. 
 
 6 
 
82 ESSENTIALS TO COPYRIGHT. [§ 49. 
 
 of this provision demand originality and exclude plagiar- 
 ism; require honesty and give no countenance to fraud; 
 and on this point the courts are in accord. But what con- 
 stitutes originality, or when that requisite is wanting in a 
 work, it is not always easy to determine. The test of 
 originality furnished by Mr. Drone is the following: "In 
 all cases, whatever may be the kind or character of the 
 work for which protection is claimed, the true test of 
 originality is whether the production is the result of in- 
 dependent labor, or of copying. A close resemblance be- 
 tween two publications may afford strong evidence of copy- 
 ing; and in some cases, especially when the similarity is not 
 explained, it may amount to conclusive proof of piracy. 
 But, when it is established that a work is the result of 
 honest authorship, its likeness to another publication is im- 
 material. " ^"^ 
 
 2. Merit or value. — That a production should possess 
 some merit or value, literary or other, to entitle it to the 
 privilege and protection of the copyright law is quite ob- 
 vious. There are quite enough objects and subjects of 
 weighty human interest to engage the genius and labor 
 of writers and compilers of every grade, without adding to 
 the catalogue things of no value or importance. But mere 
 literary merit is not essential to copyright; it is enough 
 that a production may contribute to useful knowledge ; and 
 the courts have been quite liberal in this direction, ex- 
 tending the protection of the copyright law to compilations 
 of various kinds, annotations consisting of common ma- 
 terials, collections of statistics,, calendars, catalogues, and 
 other compilations involving no literary ability.'" 
 
 T5 Drone, Copyr. p. 208. 
 
 T« Drone, Copyr. pp. 153, 208-212; Folsom y. Marsh, 2 Story. 
 109; Scovllle v. Tolland, 6 West. Law Jour. 84; CoUender y. 
 
§ 49.] ESSENTIALS TO COPYRIGHT. 83 
 
 3. Seditious or libellous puhlications. — The law univer- 
 sally condemns publications which are seditious and libel- 
 lous, and cannot, therefore, consistently extend to them its 
 protection. Such publications are justly treated as out- 
 laws. On this point there is no ground for contrariety of 
 judicial opinion, and none is found in reported cases.''' 
 
 4. Immoral productions. — These, like seditious and libell- 
 ous publications, are under the condemnation of the law, 
 and excluded from its protection. The law has no higher 
 or nobler function than the encouragement and protection 
 of public and private morality. This truth is expressed in 
 the spirit of Blackstone's definition of municipal law: a 
 rule of civil conduct prescribed by the supreme power in 
 the state, commanding what is right and prohibiting what 
 is wrong. ' ' '* This definition has been criticised as in some 
 respects inaccurate ; but it may well be questioned whether 
 the criticisms are not hypercritical.''* 
 
 5. Blasphemous publications. — From the principles al- 
 ready stated it is clear that publications of a blasphemous 
 character cannot be the subjects of copyright, and are not, 
 of course, under the protection of copyright law. This rule 
 is recognized and enforced by the courts, both in Great 
 Britain and the United States. But, what constitutes 
 
 Griffith, 11 Blatchf. 211; Lawrence v. Dana, 2 Am. L. T. R. N. S. 
 423; Jarrold v. Houlston, 3 Kay & J. 708; Pike v. Nicholas, 20 
 L. T. N. S. 906; Gray v. Russell, 1 Story, 11; Story's Bx'rs v. 
 Holcombe, 4 McLean, 306; Barfield v. Nicholson, 2 Sim. & St. 1; 
 Carey v. Faden, 5 Ves. 24; Matthewson v. Stockdale, 12 Ves. 270; 
 Scott V. Stanford, Law Rep. 3 Eq. 718; Lawrence v. Dana, 2 Am. 
 L. T. R. N. S. 402. 
 
 77 Drone, Copyr. pp. 112-114, 181-185. 
 
 78 1 Black. Com. p. 44. 
 
 78 Drone, Copyr. pp. 112-114, 185-187; Stockdale v. Onwhyn, 5 
 Barn. & C. 173; Martinetti v. Maguire, 1 Deady, 216; Keene v. 
 Kimball, 16 Gray (82 Mass.) 548; Shook v. Daly, 49 How. Pr. 
 366, 368. 
 
84 BEMEblES FOE INFRINGEMENT. [§ 50. 
 
 blasphemy, and what liberty is permitted to' an author in 
 treating of religious subjects, are perplexing questions for 
 judicial determination. The decisions on the subject do 
 not furnish a satisfactory solution of the questions; and 
 from the nature of the case it seems quite impossible to 
 establish a definite and universal rule for the trial and test 
 of every case that may arise. The condition of society, the 
 character of the government, the local laws, public opinion, 
 and the sentiments of the tribunal, will to a greater or less 
 extent affect the decision of each particular case presented 
 for adjudication. While, therefore, there is unity of judi- 
 cial opinion regarding the principle involved, there will 
 necessarily be diversity in its application, even where the 
 facts are substantially the same. 
 
 From the liberal character of the government of the 
 United States, and the freedom of religious belief and wor- 
 ship accorded to all its citizens, it may reasonably be in- 
 ferred that large liberty of discussion and publication on 
 moral and religious subjects would be permitted. And 
 such is the fact, as appears from our comparatively meager 
 judicial records involving the subject. But in this country, 
 nevertheless, there are limitations to the liberty of speech 
 and the press; and there is such a thing as blasphemy 
 known to the law, and punishable as a crime.'* 
 
 50. Remedies for infringement. — ^Both the common 
 law and statutory rights of authors and proprietors of 
 brain products are amply protected by law. Remedies by 
 actions at law, suits in equity, and injunction, are avail- 
 able for any invasion of these rights. 
 
 80 Drone, Copyr. pp. 187-196; People v. Ruggles, 3 Johns. 290; 
 Commonwealth v. Kneeland, 20 Pick. 206, 220; IJpdegraph v. Cum- 
 monwealth, 11 Serg. & R. 394; 1 Bishop, Crlm. L. §§ 497, 498; 
 2 Id. §§ 74-78. 
 
§ 51.] LETTEBS. 85 
 
 In the case of eommon law property, if the owner's 
 maniiseript be published in print, his dramatic or musical 
 composition be publicly performed, or copies of his worlc 
 of art be either publicly circulated or exhibited, without 
 his consent, his rights are invaded; and in such case the 
 State courts are open to the injured party for redress.*^ 
 
 For a violation of statutory copyright the remedies, legal 
 and equitable, are provided by the statutes which confer 
 the right; but in such cases the remedies must be sought 
 in the Federal courts."'' 
 
 § 51. Letters from one correspondent to another. — ^Let- 
 ters addressed from one correspondent to another are 
 classed with products of intellectual labor, and possess sub- 
 stantially the same proprietary qualities as other unpub- 
 lished manuscripts. 
 
 When written and sent, to whom do they belong, the 
 writer or the receiver? Or, more accurately, in whom is 
 the property of the writing? This question has elicited 
 considerable discussion by the courts ; but the doctrine may 
 now be regarded as settled, that the writer has a literary 
 property in his letters, which is not lost by their trans- 
 mission to the receiver.*' From this doctrine it follows, 
 as a general rule, that the receiver has no right to publish 
 
 81 Drone, Copyr. pp. IO7-IIO; Palmer v. De Witt, 47 N. Y. 532. 
 
 82 U. S. Rev. St. (2 Ed.), §§ 4963-4970; Drone, Copyr. pp. 544- 
 552, 496 et seq. 
 
 83 Drone, Copyr. p. 127; Duke of Queensbury v. Shebbear, 2 
 Eden, 329; Thompson v. Stanhope, Amb. 732; Pope v. Curl, 2 
 Atk. 342; Granard v. Dunkln, 1 Ball & B. 207; Perceval v. Phipps, 
 2 Ves. & B. 19; How v. Gunn, 32 Bea,v. 462; Dennis v. Leclerc, 1 
 Mart. (Orleans T.) 297; United States v. Tanner, 6 McLean, 128: 
 Woolsey v. Judd, 4 Duer, 379; Byre v. Higbee, 22 How. Pr. 198; 
 Grigsby v. Breckinridge, 2 Bush (Ky.) 480. 
 
86 LETTERS. [§ 51. 
 
 the letters without the consent of the writer; and such pub- 
 lication wiU be enjoined by a court of equity.** 
 
 It has been judicially held that a court of equity will 
 interpose by injunction for the reason that the unauthor- 
 ized publication of private letters is an act of bad faith 
 tending to a disturbance of the public peace, a violation of 
 the obligations of "social ethics," and subversive of that 
 free interchange of opinions and sentiments essential to a 
 weU-conditioned state of society.*" While such publication 
 may be justly obnoxious to aU these criticisms, it is not, 
 according to the prevailing doctrine, for any or all of these 
 that a court of equity exercises its restraining power, but 
 solely on the ground of protection to the literary property 
 of the writer." 
 
 There are exceptions to the rule that the writer is the 
 owner of the property in the letters written by him. For 
 example, the letters of an employee written in and concern- 
 ing the business of his employer.*^ So, also, official letters 
 written by officers of the government belong to the govern- 
 ment, with the right to publish them or to refrain from 
 so doing, at will, and to restrain their unauthorized pub- 
 lication; and this on the ground of public policy.™ 
 
 Does the property of the writer depend at aU upon the 
 literary merit of his letters? The affirmative of this ques- 
 tion has been held in some reported cases.** But the weight 
 of authority decides the question in the negative; and rea- 
 
 8* See cases cited under last paragraph. 
 
 85 Folson V. Marsh, 2 Story, 111. 
 
 88 Gee V. Pritchard, 2 Swans. 413; Woolsey v. Judd, 4 Duer, 384; 
 Grigsby V. Breckenridge, 2 Bush (Ky.) 486; Perceval v. Phipps, 
 2 Ves. & B. 24; Whitmore v. Scovell, 3 Edw. Ch. 320. 
 
 87 Howard v. Gunn, 32 Beav. 462. 
 
 88 Drone, Copyr. p. 132; Folsom v. Marsh, 2 Story, 113. 
 
 "9 Perceval v. Phipps, 2 Ves. & B. 28; Whitmore v. Scovell, S 
 Edw. Ch. 515; Hoyt v. Mackenzie, 3 Barb. Ch. 320. 
 
§ 52.] LECTURES. 87 
 
 son approves the decision."" Theoretically, and in con- 
 templation of the law, every letter has literary merit in 
 which a property exists; albeit the quantum may be mic- 
 roscopic, and undiscoverable by ordinary perception. 
 Practically, however, the wisdom of this rule is apparent 
 in view of the difficulty of drawing the liae between the 
 different degrees of literary merit. The opposite rule 
 would render the administration of the law on this subject 
 embarrassing, uncertain, and unequal as no standard of 
 literary merit could be prescribed that would suit all tri- 
 bunals, and measure all cases. 
 
 "What rights, if any, has the receiver in a letter ad- 
 dressed to him? So far as this question has been passed 
 upon by the courts, the doctrine seems to be established 
 that, while he has no literary property in the letter, he has 
 a corporeal property in the material on which it is writ- 
 ten."^ He has the right to retain possession of it, and is 
 not bound to preserve it for the benefit of the writer."^ 
 
 It has been held in several cases that the receiver may 
 publish a letter when it becomes necessary for the purpose 
 of vindicating his reputation from false charges or unjust 
 imputations made by the writer."^ But Mr. Drone dis- 
 sents emphatically from this holding, and his reasoning on 
 the point is cogent.'* 
 
 § 52. Lectures. — ^Manifestly lectures are a product of 
 brain-work; and, on principle and judicial authority, their 
 
 soWoolsey v. Judd, 4 Duer, 3T9; Grigsby v. BrecWnridge, 2 
 Bush (Ky.) 480; Drone, Copyr. pp. 132-135. 
 
 91 Drone, Copyr, pp. 135, 136; Pope v. Curl, 2 Atk. 342; Oliver 
 V. Oliver, 11 C. B. N. S. 139; Eyre v. Higbee, 22 How. Pr. 198; 
 Grigsby v. Breckinridge, supra. 
 
 »2 See cases cited last, supra. 
 
 »s Perceval v. Phlpps, 2 Ves. & B. 19; Polsom v. Marsh, 2 Story, 
 111; Woolsey v. Judd, 4 Duer, 379, 407 
 
 «* Drone, Copyr. pp. 138, 139. 
 
88 LECTURES. [§ 52. 
 
 creator has a common-law proprietary right in them be- 
 fore publication, on the same ground that supports an 
 author's right in other unpublished manuscripts.*" On 
 first view it may be thought that a lecture orally delivered 
 cannot be regarded as a manuscript and entitled to pro- 
 tection as such ; but the courts will assume that the lecturer 
 has a written composition, either in full or in skeleton, 
 from which he speaks memoriter, and is, therefore, the 
 author of a manuscript represented in the oral delivery. 
 
 But, wiU the public reading, or the oral delivery, of a 
 lecture by the author operate as an abandonment of his 
 exclusive proprietary right therein, and deprive him of 
 legal protection from piratical appropriation of his brain- 
 product? If so, the right would be of very little, if any, 
 value to the author, for most lectures are prepared for 
 public delivery. Both reason and the weight of judicial 
 authority concur in the rule, that a public reading or oral 
 delivery of a lecture is not to be regarded as in itself a 
 relinquishment of title by the author, or as operating to 
 divest him of his propespty in the manuscript. Where per- 
 sons are admitted, as pupils or otherwise, to hear public 
 lectures, it is upon the implied confidence and contract 
 that they will not use any means to injure or take away 
 the exclusive right of the lecturer in his own lectures. 
 They may take notes for their own' information, but may 
 not publish them for profit.*" 
 
 In the analagous case of playright, the question of pub- 
 lication has undergone much discussion by the courts, and 
 their reasoning and opinions, applicable to lectures as well, 
 sustain the doctrine just stated. An interesting and in- 
 
 »5 Drone, Copyr. p. 107. 
 
 86 Drone, Copyr. ppi. 118, 119, 554-584; 2 Kent, Com. pp. 378, 
 379 ; Bartlett v. Crittenden, 4 McLean, 300, 5 Id. 32. 
 
§ 53.] TBADB-MARKS. 89 
 
 structive history of this discussion will be found in Drone 
 on Copyright."' 
 
 In England the sole privilege of publishing their lectures 
 is secured to authors by statute,"' which affords protection 
 against piracy. But "lectures delivered in any university 
 or public school or college, or on any public foundation, 
 or by any individual in virtue of or according to any gift, 
 endowment or foundation," are excepted from the opera- 
 tion of this act. 
 
 In the United States a remedy is given by statute for 
 the unauthorized publication of a manuscript."' 
 
 For a violation of the author's right he may maintain 
 an action at law; and, in a proper case, a court of equity 
 will interpose by injunction.^ 
 
 The remedies are available in a state court; and a citizen 
 or resident of the United States may obtain redress in a 
 Federal court.* 
 
 § 53. Trade-marks. — Property in trade-marks is gen- 
 erally and properly classed under the first general mode 
 of acquiring title to personal property, that of original 
 acquisition. 
 
 A trade-mark has been well defined as "the name, sym- 
 bol, figure, letter, form or device, adopted and used by 
 a manufacturer, or merchant, in order to designate the 
 goods 'that he manufactures, or sells, and distinguish them 
 from those manufactured or sold by another; to the end 
 
 97 Pages 554-584; and see Palmer v. De Witt, 47 N. Y. 532; 
 Thompkins v. Halleck, 133 Mass. 32, 43 Am. Rep. 480. 
 
 »8 5 & 6 Will. rV. c. 65; Drone, Copyr. p. 658; Goode, Pars. Prop 
 pp. 217, 218. 
 
 o»U. S. Rev. St. (2 Ed.), § 4967; Drone, Copyr. pp. 124-127. 
 
 lU. S. Rev. St (2 Ed.), § 4967; Drone, Copyr. p. 124; Bouci 
 cault V. Hart, 13 Blatchf. 47. 
 
 2 Drone, Copyr. pp. 545, 546; Palmer v. De Witt, 47 N. T. 532. 
 
90 A COMMON LAW EIGHT. [§ 54. 
 
 that they may be known in the market as his, and thus 
 enable him to secure such profits as result from a reputa- 
 tion for superior skill, industry or enterprise." ' 
 
 A trade name is to be distinguished from a trade-mark 
 A trade-mark exists because affixed to property; a trade 
 name is allied to the good will of a business. The trade 
 name of a firm, corporation or publication, although not a 
 trade-mark, will be protected like a trade-mark. 
 
 § 54. A common law right. — ^A trade-mark is the crea- 
 ture of common law, and not like the subjects of patents 
 and copyright, dependent upon statute for existence or 
 protection. The two species of property, especially trade- 
 marks and copyright, are sometimes confounded ; but, while 
 having some features in common, they are essentially dif- 
 ferent in character. Copyright property, as we have seen,* 
 is the exclusive right of multiplying and vending copies 
 of original productions of the mind, and "is a property in 
 the thing itself, the words, letters, designs or symbols, which 
 are the signs of things, and the forms and embodiment of 
 thought." While trade-marks are property, "not in the 
 words, letters, designs and symbols, as things, as signs 
 of thought, as productions of the mind; but simply and 
 solely as a means of designating things; the things thus des- 
 ignated being the productions of human skill, or industry, 
 
 'TJpton, Trade-marks, p. 9; and see 2 Bouv. L. Diet. "Trade- 
 marks;" Newman v. Alvord, 51 N. Y. 189; Hostetter v. Adams, 20 
 Blatch. C. C. 326; Lawrence Manuf. Co. v. Lowell Hosiery Mills, 
 129 Mass. 325, 37 Am. Rep. 362; Hier v. Abraham, 82 N. Y. 519; 
 Thornton v. Crowley, 47 N. Y. Super. Ct. (15 J. & S.) 527; Am. 
 Solid Leather Button Co. v. Anthony Cowell Co., 2 New Engl. 
 Rep. 630; Ferguson v. Davol Mills, 7 Phila. 253, 2 Brewst. 314; 
 Boardman v. Meriden Brittania Co., 35 Conn. 402; Munro v. 
 Tousey, 129 N. Y. 38. 
 
 * Supra, § 47. 
 
§ 55.] WHAT MAY CONSTITUTE A TRADE-MARK. 91 
 
 whether of the mind or the hand, or a combination of 
 both."» 
 
 A very stringent and carefully drawn statute on the sub- 
 ject of trade-marks, was passed by Congress in 1870 and 
 amended in 1876.* But this law was held to be tmeon- 
 stitutional by the Federal courts.'' The provision of the 
 United States Constitution for securing "to authors and 
 inventors the exclusive right to their respective writings 
 and discoveries," on which the law of patents and copy- 
 right is based, does not apply to trade-marks.* 
 
 Based upon the commerce clause in the constitution, at 
 least one of the acts of Congress regulating trade-marks 
 has been declared constitutional, the act of March 31, 1881. 
 
 The act provides that the owners of existing trade-marks 
 used in commerce with foreign nations or with Indian 
 tribes only, may register such trade-mark in the patent 
 office by complying with the act." 
 
 There are also provisions in the laws of Congress look- 
 ing to the protection of domestic manufacturers from the 
 copying, or simulation, of their names or trade-mark on 
 imported merchandise.^" 
 
 § 55. What may constitute a trade-mark. — ^By the defi- 
 nition supra,^^ a trade-mark may consist of a name, sym- 
 
 B Upton, Trade-marks, pp. 14, 15; Dr. Jaeger's Sanitary Woolen 
 System Co. v. Le Boutillier, 47 Hun, 521; Skinner v. Oakes, 10 
 Mo. App. 45; Atlantic Milling Co. v. Robinson, 20 Fed. Rep. 217; 
 Shaver v. Shaver, 54 Iowa, 208, 37 Am. Rep. 194. 
 
 «U. S. Rev. St. (2 Ed.), §§ 4937-4947. 
 
 7 Leldersdorf v. Flint, 8 Blss. C. C. 327; afflnned on appeal to 
 the United States Supreme Court. 
 
 s United States v. Steffens, 100 U. S. 82; and see United States 
 v. Roche, 1 McCrary, C. C. 385. 
 
 » S. C. v. Seymour, 153 U. S. 82; Brennan v. Emery Dry Goods 
 Co., 99 Fed. Rep. 971. 
 
 10 U. S. Rev. St. (2 Ed.) § 2496; U. S. St. 1882-83, § 2496; U. S. 
 St. 1889-90, S 7, 
 
 11 § 53. 
 
92 BY WjaOM ACQUIRED. [§56. 
 
 bol, figure, letter, form or device. But it should be noticed 
 that a name or word which expresses only the quality, 
 kind, texture, composition, or utility of an article, wiU not 
 be protected as a trade-mark. The use of such names and 
 words is common, and equally free to all and no one per- 
 son, therefore, can monopolize their exclusive use for his 
 own benefit.^* 
 
 The same rule applies to marks, symbols, letters, and 
 figures, which are used only to denote the quality, grade, 
 appropriate name, or the peculiar mode or process of man- 
 ufacture of the article to which they arc applied.^' 
 
 But it has been held that marks, such as arbitrary com- 
 binations of figures, indicating style or quality, which also 
 indicate origin, may be the subject of a trade-mark." 
 
 § 56. By whom acquired. — Trade-marks are a species 
 of personal property,'" and may be acquired by any per- 
 son capable of acquiring and possessing other kinds of 
 
 12 Corwin v. Daly, 7 Bos. 222 ; Wolfe v. Goulard, 18 How. Pr 
 64; Fetrldge v. Wells, 13 Id. 385; Evans v. Von Laer, 32 Fed. 
 Rep. 153; Colgau v. Danheiser, 35 Id. 150; Runneford Chemical 
 Works V. Muth, Id. 524; Smith v. Walker, 57 Mich. 456; Hom- 
 bottle V. Kinney, 52 N. Y. Super. Ct. 41; Hostetter v. Adams, 20 
 Blatchf. C. C. 326; Fleischerman v. Newman, 16 N. Y. State Rep. 
 79*. 
 
 18 Royal Baking Powder Co. v. Sherrell, 93 N. Y. 331; Amos- 
 keag Manuf. Co. v. Trainer, 101 U. S. 51; Same v. Spear, 2 Sandf. 
 Super. Ct. 599. 
 
 i*Am. Solid Leather Button Co. v. Anthony Crowell & Co., 2 
 New Eng. Rep. 630; Boardman v. Merlden Britannia Co., 35 
 Conn. 402; Lawrence Co. v. Lowell Mills, 129 Mass. 325; Gillott 
 V. Esterbrook, 48 N. Y. 374. 
 
 10 Bradley v. Norton, 33 Conn. 157; Huwer v. DannenhofEer, 82 
 N. Y. 499, 502; The Leather Cloth Co. v. The Am. Leather Cloth 
 Co., De Gex, J. & S. 137, 11 House of Lords Gas. 523; The Glen 
 & Hale Manuf. Co. v. Hall, 61 N. Y. 226. 
 
§ 57.] FREEDOM FKOM FRAUD. 93 
 
 personal property, an alien as well as a citizen." But the 
 exclusive right can exist only in a person, who, in some 
 form, and to some extent, possesses an exclusive right in 
 the property to which it is appended. It is not an ah- 
 stract right to the exclusive use of a certain mark, dis- 
 associated from the article property which its use is to 
 designate, and distinguish from other articles of the same 
 general character.^' 
 
 The question has been under judicial consideration, 
 whether a drawing or picture of an article may be used 
 as a trade-mark. It would not be safe to affirm that this 
 question has been definitively settled. The courts of this 
 country, so far as they have spoken on this point, and the 
 English courts, do not seem to be in accord ; the former in- 
 clining to the affirmative,^' and the latter to the negative, 
 of the question.^" 
 
 § 57. Freedom from fraud. — The right of a party to 
 a trade-mark will not be recognized by. the courts where 
 he is guilty of fraud or deception in its acquisition or use. 
 Courts of equity exercise jurisdiction in trade-mark cases 
 for a two-fold purpose: First, to stimulate and reward 
 skill and honesty in trade and manufactures; and, sec- 
 
 10 Taylor v. Carpenter, 3 Story, 458; The Collins Co. v. Brown, 
 3 Kay & J. 423; Same t. Cowen, Id. 428; Coats v. Holbrook, 2 
 Sandf. Ch. 586; CofEeen v. Brunton, 4 McLean, 516. 
 
 17 Atlantic Milling Co. v. Robinson, 20 Fed. Rep. 217; Skinner 
 V. Oakes, 10 Mo. App. 45; Ferguson v. Davol Mills, 7 Phlla. 253, 
 2 Brewst. 214; Congress & Empire Spring Co. v. High Rock Con- 
 gress Spring Co., 45 N. Y. 291; Cotton v. Gillard, 44 L. J. (N. S.) 
 Ch. 90; Samuel v. Berger, 4 Abb., Pr. Rep. 88. 
 
 18 Zm re Pratt, 10 IJ. S. Pat. Gaz. 866; Tucker Manuf. Co. v. 
 Boyington, 9 Id. 455; Ex parte Halliday, 16 Id. 506; Ex parte 
 Smith, Id. 179. And see Popham v. Cole, 66 N. Y. 69. 
 
 i» James v. Parry, 55 L. T. Rep. N. S. 415, 35 Albany L. J. 12. 
 
94 HOW ACQUIRED. [§ 58. 
 
 ondly, to protect the public against fraud and imposition 
 by unscrupulous dealers, who seek to pass off spurious and 
 inferior commodities for the genuine. Hence the just and 
 wise rule that, no person can establish an exclusive right to 
 a trade-mark acquired dishonestly, or used for fraudulent 
 purposes.^" 
 
 § 58. How acquired. — Property in a trade-mark is pri- 
 marily acquired by adoption and use by the manufacturer, 
 or other person possessed of an exclusive right in the thing 
 to which it is applied.^^ No duration of time as to the use 
 is requisite to create the property right.^^ 
 
 To give an exclusive right, the use of the trade-mark 
 by the person adopting and claiming it must be new, hav- 
 ing never previously been used in appliance to a like art- 
 icle.2^ 
 
 Property in a trade-mark may, also, be acquired by a 
 voluntary transfer from the person whose title originated 
 in adoption and use.** But, as we have seen supra,"" the 
 
 2oFetridge v. Wells, 13 How. Pr. Rep. 385; Partridge v. Menck, 
 How. App. Cas. 547; Perry v. Truefitt, 6 Beav. 66; Fowls v. 
 Spear, 7 Penn. L. J. 176; Hobbs v. Francis, 19 How. Pr. Rep. 567; 
 Siegert v. Abbott, 61 Md. 276, 48 Am. Rep. 101; Buckland v. Rice, 
 40 Ohio St. 526; Manhattan Medicine Co. v. Wood, 108 U. S. 218; 
 Landreth v. Landreth, 22 Fed. Rep. 41; De Kuyper v. Witteman, 
 23 Id. 871. 
 
 21 Upton, Trade-marks, pp. 46, 47; Deringer v. Plate, 29 Cal. 
 292; Filley v. Fassett, 44 Mo. 168; Candee v. Deere, 54 111. 439; 
 Bradbury v. Beeton, 39 Law J. Rep. Ch. (N. S.) 57. 
 
 22 Hall V. Barrows, 8 L. T. (N. S.) 227, on appeal, 9 L. T. (N. S.) 
 561; Brown, Trade-marks, § 252. 
 
 23 Van Beil t. Prescott, 82 N. Y. 630; Derringer v. Plate, 29 Cal. 
 292; Upton Trade-marks, pp. 46, 47. 
 
 24Hoxie V. Chaney, 143 Mass. 592, 58 Am. Rep. 149; Morgan v. 
 Rogers, 19 Fed. Rep. 596; Hegeman & Co. v. Hegeman, 8 Daly, 
 1; Matter of Swezy, 62 How. 215; Walton v. Crowley, 3 Blatchf. 
 C. C. 440; The Leather Cloth Co. v. The Am. Leather Cloth Co., 
 
§ 59.J INFRINQEMENT. 95 
 
 abstract trade-mark is not assignable when disconnected 
 with the thing designated by it; the right either to manu- 
 facture or sell the merchandise to which the mark has been 
 applied must go with it, or no title will vest in the as- 
 signee; the original proprietor can transfer no greater 
 right than that possessed by himself, which is, simply, the 
 exclusive right to use the mark to designate, and distin- 
 guish from articles of the same general character, the mer- 
 chandise which he manufactures or sells.^' 
 
 So, also, property in a trade-mark will pass by opera- 
 tion of law. On the decease, or bankruptcy, of the pro- 
 prietor of a trade-mark, the property in it passes to the 
 party lawfully succeeding to the control of the business in 
 which the mark was used. 
 
 Unless provision is made by statute, a trade-mark is not 
 subject to execution.''^ 
 
 § 59. Infrinifement. — The violation of a trade-mark 
 consists in the unauthorized application of it, or of a color- 
 able imitation of it, to the goods manufactured or sold by 
 the wrong-doer, under the fraudulent representation that 
 they are the genuine merchandise of the proprietor, where- 
 by purchasers and consumers may be deceived, and the 
 owner of the trade-mark damnified.^' • 
 
 De Gex, J, & S. 137, 11 House of Lords Cases, 523; The Glen & 
 Hall Manuf. Co. v. Hall, 61 N. Y. 226, 230; Huwer v. Dennen- 
 hofEer, 82 Id. 499, 502. 
 
 25 § 56. 
 
 28 Samuel v. Burger, 4 Abb. Pr. Rep. 88; Atlantic Milling Co. 
 v. Robinson, 20 Fed. Rep. 217. 
 
 27Huwer v. Dannenhoffer, 82 N. Y. 499, 502; Matter of Swezy, 
 62 How. 215; Croft v. Day, 7 Beav. 84; Upton, Trade-marks, p. 80 
 et seq.; Prince Manuf. Co. v. Prince Metallic Paint Co., 20 N. Y. 
 Supp. 462. 
 
 28 Newman v. Alvord, 49 Barb. 588; Enoch Mofgan Sons' Co. 
 Y. Schwackhoefer, 55 How. Pr. 37, 5 Abb. N. C. 265; N. Y. Cab. 
 
^6 REMEDIES FOE INFEINGEMENT. [§ 60. 
 
 Prom the definition of an infringement, and the au- 
 thorities cited, it will appear that a colorable imitation cal- 
 culated to deceive the purchaser without a close inspection, 
 will constitute a violation of the proprietor's right, and en- 
 title him to legal and equitable relief.^' But this rule does 
 not include a ease in which the simulation would not de- 
 ceive a person of ordinary prudence; the maxim in such 
 case applying, "Vigilantibus non dormientibus leges sub- 
 veniunt."^" 
 
 § 60. Remedies for infringement. — ^For a violation of 
 trade-mark property t he courts of law, anrl nf pgnity are 
 both open to the injured party for redress. In the former, 
 he may have an action for da mages; in the la tter, a su it 
 for an injunction, and a decre e for pecuniary satisfactio n. 
 The extraordinary restraining power by injunction belongs 
 to a court of equity; an action primarily for damages, to a 
 court of law. By a familiar rule, however when a court of 
 equity obtains jurisdiction of a matter for any purpose, it 
 will exercise its powers for all purposes connected there- 
 with, and grant full relief to injured parties. Under this 
 rule in a suit praying for an injunction a court of equity 
 obtains jurisdiction of the case, and, having full control 
 and power, will decree damages when such redress is de- 
 manded by justice and equity. The court, has power also 
 in such case to compel the defendant to render a full and 
 
 Co. V. Mooney, 15 Abb. N. C. 152; Farmers' Loan & Trust Co. v. 
 Farmers' Loan & Trust Co. of Kansas, 21 Id. 104; GodUlott v. 
 Harris, 81 N. Y. 263; Robertson v. Berry, 50 Md. 591. 
 
 20 Vacuum OH Co. v. Buffalo Lubricating Oil Co., 26 Weekly 
 Dig. 670; New Haven Pat. Rolling Spring Co. v. Farren, 51 Conn. 
 324; Robertson v. Berry, 50 Md. 5P1. 
 
 30 Popham v. Cole, 66 N. Y. 69 ; Partridge v. Menck, 2 Sandf. 
 Ch. 622, on appeal, 1 How. App. Cas. 548; CoUaday y. Baird, 4 
 Phila. 139; Woolam v. Ratcliff, 1 Hem. & M. 259. 
 
§ 60.] REMEDIES FOR INFEINGEMENT. 97 
 
 true account, vmder oath, of all sales by him of merchandise 
 bearing the pirated trade-mark, thus facilitating the ad- 
 ministration of justice between the parties.*^ 
 
 •iTTpton Trade-marks, pp. 233, 234; Knott v. Morgan, 2 Keen, 
 213; Millington v. Fox, 3 Mylne & C. 338; Taylor v. Carpenter, 
 2 Sandf. Ch. 611, 612; Bell v. Locke, 8 Paige, 275; Thompson t. 
 Winchester, 19 Pick. 214; Jurgenson v. Alexander, 24 How. Pr. 
 Re. 269; Stonebreaker v. Stonehreaker, 33 Md. 252; Shaver v. 
 Shaver, 54 Iowa, 208, 37 Am. Rep. 194; Singer Manuf. Ck). v. Kim- 
 baU, 10 ScotUsh L. R. 173. 
 
 7 
 
98 FOEFEITUBB. [§- 62. 
 
 CHAPTEE Vm. 
 
 THE SECOND GENERAL MODE OF ACQTJIRrNG TITLE TO 
 
 PERSONAL PROPERTY— TRANSFER BY 
 
 ACT OF LAW. 
 
 § 61. Special modes included in this division. 
 62-65. Forfeiture. 
 66-67. Succession. 
 68-69. Judgment. 
 70. Intestacy. 
 71-74. Insolvency. 
 75-77. Marriage. 
 
 § 61. The special modes included. — Transfer of title to 
 persona] property by act of law embraces: I. Forfeiture ; 
 II. Successio n ; III. Judgment; IV. I ntesta cy ; V. Insol- 
 vency; and VI. Marriag e. 
 
 I. Forfeiture. 
 
 § 62. Definition and examples. — Forfeiture is a loss of 
 titlg_to his goods and chatte ls b y the owner, as a pnniah- 
 ment for crim e, a penalty for tha vinla.tinTi of law, or a 
 breach_fl£- contract, a.Ti d a. transfei ; ' thereof to the govern - 
 me nt, or other corporation , or to a privatp pt^Tgmi^gg.il;'' 
 case may b e.^ 
 
 As examples, may be mentioned forfeiture of all the 
 goods and chattels of the offender for treason, and other 
 high crimes; forfeiture of goods for evasion of the reve- 
 nue laws, or other statutes, State or national; forfeiture 
 
 12 Kent, Com. p. 385; 1 Black. Com. (Cooley's Ed.), p. 298; 
 2 Id. p. 408 et seq., 420, 421; 4 Id. pp. 382, 387; 1 Bouv. L. Diet. 
 "Forfeiture;" And. L. Diet. "Forfeiture." • 
 
§ 64.] POEFEITUEE. 99 
 
 under the police power of the state for the illegal use of 
 property; and forfeiture of the shares of a stockholder in 
 a corporation for a failure to pay assessments when due.* 
 
 § 63. England, and United States. — ^Anciently in Eng- 
 land there were numerous statutory forfeitures for crime; 
 but modern legislation has largely reduced the number, 
 and greatly softened the rigor of the ancient law. 
 
 In the United States, forfeiture for crime is of rare oc- 
 currence. Legislation, both national and State, is generally 
 in harmony with the spirit of the Federal Constitution, 
 which provides that "no attainder of treason shall work 
 corruption of blood, or forfeiture, except during the life 
 of the person attained. ' ' ' By act of Congress it is pro- 
 vided that, "no conviction or judgment shall work cor- 
 ruption of blood, or any forfeiture of estate. ' ' * 
 
 In most, if not all, of the States of the Union forfeiture 
 is regulated by organic or statutory law, or both. In the 
 absence of such regulation, forfeiture of pro^rty for trea- 
 son and felony still exists, it being part of the common law 
 inherited from England." 
 
 § 64. When title passes. — ^As a general rule, the inejir- 
 rence of the forfeiture does not ipso facto transfer the for- 
 feited property to the state, or the party to whom it goes ; 
 b ut a final judgmep t nf a. omrt. of co mpetent jurisdictio n 
 is requisite to pass the title ." 
 
 2 Citations supra; and Chit. Cr. L. pp. 730-735; 1 Bishop, Cr. L. 
 §§ 944, 824, 835; Weeks v. Silver Islet, etc., Co., 55 N. Y. Super. 
 Ct. (J. & S.) 1, 16; Pendergast v. Turton, 1 Young & Coll. (N. R.) 
 98; Story Eq. Jur. § 1325; Cathcart v. Fire Department, etc., 26 
 N. Y. 529. 
 
 s U. S. Const, art. 3, § 3. 
 
 * U. S. Rev. St. (2 Ed,), 5 5326. 
 
 6 2 Kent, Com. p. 386. 
 
 « 1 Bishop, Cr. L. § 967; Fire Department of New York v. Kip, 
 
100 SUCCESSION, [§ 66. 
 
 Tt nt t.Tift fnrfpiit nrf; ■^>"'" Aoo-roaA^ Tplfltp fi back to the 
 ti me wlien _it_ was incurred .'' 
 
 § 65. Forfeiture odious. — In the administration of stat- 
 utory law, it is important to observe the distinction be- 
 tween things odious and things favored, as affecting the 
 rule of construction applicable to each. Statutes creating 
 the former aresubject to strict construction, while the lat- 
 ter kind are constr^ieS'liberally Forfeitures and penalties 
 belong to the odious class, and fall under the rule of strict 
 construction.' The rule of construction applicable may be 
 decisive of a case. 
 
 II. Succession. 
 
 § 66. Definition, and kinds. — ^Defined in a general way, 
 su ccession is the transfer of title o r riphts fvnm otip ppr- 
 s on, or set of persons to another, either by act of the partie s 
 o r by operat JQg of law, whe reby the latter becomes the su c- 
 cess or of the former in respect of such title or right s. 
 
 There are several kinds or modes of succession by opera- 
 tion of law, without the act of the parties, classified as fol- 
 lows : fi rst, the succession to the government of the pprsnnfi l 
 an d real estate of an intestate. wTipti >ip huf^ nn lipirg, or 
 ne xt of kin to claim it; second, w hat is sometimes called 
 
 10 Wend. 266; King v. Earbury, Fort. 37; Wells v. Martlne, 2 
 Bay, 20; Skinner v. Perot, 1 Ashm. 57. 
 
 7 Bulkly V. Orms, Brayt. (Vt.) 124; Clark v. Protection Ins. Co., 
 1 Story, 109; The Hears, 8 Cranch, 417; United States v. Seventy- 
 Six Thousand One Hundred and Twenty-Five Cigars, 18 Fed. Rep, 
 147. 
 
 8 Bishop, Cont. (2 Enl. Ed.), § 417; Bishop, Written Laws, § 192 
 et seq.; Taylor v, Patterson, 9 La. An. 251; Smith v, Spconer, 3 
 Pick. 229; Sewal v. Jones, 9 Id. 412; Sullivan v. Park, 33 Me. 
 438; The State v. Stevenson, 2 Bally, 334, 335; United States v. 
 Burdett. 9 Pet. 682. 
 
§ 67.] SUCCESSION. 101 
 
 l egal successioii, w hich goYerns the, distribution of decede nt 
 e states , and which is treated, post, under the head of In - 
 t estacy : ® and, tlnVf), pmrnnnTi la w succession , "t he mode b y 
 whic h one set of persons, me mbers of a corporation aggr e- 
 gate, acquire the rights of another set which precede d 
 them." 
 
 Testamentary succession is sometimes erroneously classed 
 with succession by act of law, instpaf l nf by pet of the par - 
 t ies^ to which class it belongs, as the devisee and ^f'.fratp■.p. 
 ta Ve titip dirppt from the testato r. This kind of succession 
 is discussed post,^^ under the head, "Title by will or testa- 
 ment." 
 
 The third kind only, that of common-law succession, 
 will be considered in this connection. 
 
 § 67. Common-law succession. — This mode of acquiring 
 title relates mainly to corporations aggregate, which were 
 treated supra." According to Blackstone, the acquisition 
 of property in chattels by succession "iSi_JD_s£rictn£Ss 
 of law, only applicable to corporations aggrp.gate." "in 
 w hich one set of men may, bv succeeding another set^ ac - 
 q uire a property in all t.bft gnoHs, mnvablpH^ anri fttbpr 
 ch attels of the corporation ."^^ But as we have seen, the 
 term "succession" may have a broader scope. 
 
 Chief Justice Marshall, in the celebrated Dartmouth 
 College ease,^* speaking of the properties of corporations 
 
 Ȥ 70. 
 
 loBouv. Law Diet "Succession;" 2 Kent, Com. p. 387; 2 Black. 
 Com. pp. 430, 431; 1 Id. pp. 468, 469, 475; And. L. Diet "Succes- 
 sion.'' 
 
 11 § 90, etc. 
 
 12 § 30. 
 
 13 2 Black. Com. pp. 430, 431. 
 
 1* Dartmouth College v. Woodward, 4 Wheat. 636. And see 
 1 Black. Com. pp. 469, 470, 471, 475; 2 Kent, Com. p. 273; 1 Pot- 
 ter, Corp. §§ 2, 3, 4. 
 
102 JUDGMENT. [§ 68. 
 
 aggregate, says: "They enable a corporation to manage 
 its own affairs, and to hold property without the perplex- 
 ing intricacies, the hazardous and endless necessity of per- 
 petual conveyances for the purpose of transmitting it from 
 hand to hand. It is chiefly for the purpose of clothing 
 bodies of men in succession, with these qualities and ca- 
 pacities, that corporations were invented, and are in use. 
 By these means a perpetual succession of individuals is 
 capable of acting for the promotion of the particular ob- 
 ject, like one immortal being." 
 
 In sole corporations a distinction is made in respect of 
 succession. " When a sole corporation is the representative 
 of a niunber of persons, it has the same capacity as a co r- 
 p oration aggregate to take chattels jn Rnnpfissinp ; butjn 
 ca se of sole corporation which represent only one perso n, 
 cha ttel interests do not pass in succession .^" 
 
 Sole corporations proper are rare in the United States, 
 but there are quasi corporations possessing some of the 
 properties, and subserving some of the purposes, of sole 
 corporations.^" 
 
 III. Judgment. 
 
 § 68. Definition. — A judgment is the conclusion of law . 
 upon the facts of a case judi ciall y a-scprtainprl pronounce d 
 by a competent tribunal having -jnrisdip.t jon in the Pre m- 
 ise s, in a matter regularly before it for adindicatin n 
 
 Judgments in actions ex contractu are classed with con- 
 tracts of record by some text-writers and courts ; " but 
 
 i»2 Black. Com. pp. 431, 432; Kent, Com. pp. 273, 274; 1 Pot- 
 ter, Corp. § 18. 
 
 iBMorawetz, Corp. vol. 1, § 2. 
 
 "1 Pars. Cont. (7 Ed.), p. 8; Mete. Cont p. 4; Anson, Cont. 
 pp. 8, 37, 38; Wald's Pollock Cont. pp. 145, 146; Morse v. Tap- 
 
§ 69.] JUDGMENT. 103 
 
 other authorities dissent, holding that no judgment has the 
 ess ential elements of a contract ; ^^ and the weight of au- 
 thority seems to be on this side of the question. 
 
 But, whatever may be the rule respecting judgments in 
 actions ex contractu, there is no good reason for classing 
 judgments ex delicto with contracts ; ^* and it is with these 
 mainly, that we are concerned in this connection. 
 
 § 69. Judgments which transfer title. — ^In actions of 
 trover, or of de bonis asportatis, if the plaintiff recovers 
 judgment, and obtains satisfaction, the title to the prop- 
 erty in question is transferred to the defendant; the dam- 
 ages recovered being regarded as the price of the chattel 
 so transferred by operation of law.^" 
 
 It is a mooted question whether the recovery of judg- 
 ment alone, without satisfaction, will transfer the title to 
 the property in question to the defendant. There are 
 eases, English and American, holding the affirmative of the 
 question on, at least, plausible grounds ; -^ on the other hand, 
 there are numerous cases holding the negative, the judgment 
 being regarded as a security merely, leaving the title to the 
 
 pan, 3 Gray, 411; Gebhard v. Garnier, 12 Bush. 321; Stuart v. 
 Landers, 16 Cal. 372. 
 
 IS Bishop, Cont. (2 Enl. Ed.), § 141; O'Brien v. Young, 95 N. T. 
 428; Louisiana v. Mayor, 109 U. S. 285; Rae v. Hulbert, 17 111. 
 572, 580; Burnes v. Simpson, 9 Kan. 658 ; , Larrabee v. Baldwin, 
 35 Cal. 155, 168; McConn v. The N. Y. C. and H. R. R. Co., 50 
 N. Y. 176; Biddleson v. Whytel, 3 Burrows, 1545-1548. 
 
 18 Bishop, Cont. (Enl. Ed.), § 141. 
 
 20 2 Kent, Com. pp. 387, 388; 2 Blaclc. Com. pp. 437, 438; 
 Bishop, Non-Cont. Law, § 399. 
 
 21 Brown v. Wootton, Cro. Jac. 73; Adams t. Broughton, 
 Strange, 1078; Rogers v. Moore, 1 Rice, 60; White v. Philbrick, 
 5 Greenl. 147; Carlile v. Burley, 3 Id. 250; Floyd v. Browne, 1 
 Rawle, 125; Marsh v. Pier, 4 Id. 273; Hunt v. Bates, 7 R. I. 217. 
 
104 JUDGB^NT. [§ 69. 
 
 property in the plaintiff until payment bf the price repre- 
 sented by the judgment.^^ 
 
 It seems but reasonable and just that the owner should 
 not lose title to his chattel against his will, by the tortious 
 act of another, without receiving compensation for it; and 
 equally reasonable and just that the wrong-doer should 
 not profit by his tort without first paying the judgment 
 price. 
 
 There are some other cases, generally assigned to this 
 mode of acquiring title to personal property, of which 
 notice should be taken. They differ somewhat from the 
 cases now considered, and do not in all respects strictly 
 fall within the same doctrine, yet for all practical pur- 
 poses they may properly be placed in the same category. 
 
 1. C ases of penalties given by statute, w hich may be re- 
 covered by any party who will sue for the same; and qui 
 tarn actions, i n which an informer may sue for the penalty 
 i n his own name, as well on behalf of himself as the stat e. 
 In this class of cases no particular person has any right in, 
 or claim upon, the penal sum before action brought. He 
 who first hrinya t.Tip acti on ptiH nhtninn jnrl:;Tnnnt, nrgnim 
 title J2it.'» 
 
 2. Dam ages awarded to a man a s a compensat ion for an 
 injury s ustained; as for a battery, f or false imprisonment, 
 for slander or trespass, and, generally, for injuries result- 
 ing from torts, for which the damages recoverable are un- 
 
 *2 Curtis V. Groat, 6 Johns. 168; Osterhout v. Roberts, 8 Cow. 
 43; Sanderson v. Caldwell, 2 Aiken, 195; Elliott v. Porter, 5 
 Dana, 299; Campbell v. Phelps, 1 Pick. 62; Sharp v. Gray, 5 B. 
 Monr. 4; Hepburn v. Sewell, 5 Har. and J. 211; Spivey v. Morris, 
 18 Ala. 254: Drake v. Mitchell, 3 East, 258; Cooper v. Shepherd, 
 3 C. B. 266; Go£E v. Craven, 34 Hun, 150; Thurst v. West, 31 
 N. Y. 215. 
 
 23 2 Black. Com. p. 437; Bishop, Written Laws, § 250 d. 
 
 24 2 Black. Com. p. 438. 
 
§ 70.] ■ INTESTACY. 105 
 
 certain. In this class of cases, the damages, when fixed_by 
 judgment, become the property of the plaintiff, transferred 
 to him from the defendant by operation of law.''* 
 
 rV. Intestacy. 
 
 § 70. Definition, history, and incidents. — In testacy is 
 the state or condition of a person dvinp- witbnnt. Ipaving a 
 valicLiill.'"' Applied to the subject in hand, it signifies 
 the state of on^ dying and leaving testable personal prop- 
 erty undisposed of by will. 
 
 The intestate's title to his property dies with him; and 
 where the title rests intermediate his death and the ap- 
 pointment of an administrator, is a question which has 
 caused some confusion of thought. It does not vest in his 
 heirs at law for they take only decedent's real estate; it 
 does not pass directly to the next of kin, for they take no 
 legal title to his personal property; neither their title nor 
 that of any other person can accrue in other mode than 
 through the medium of an administrator.^* 
 
 A brief historical sketch of the law of intestacy will 
 relieve the question from difficulty. "We have seen*'' that 
 occupancy is the first known method of acquiring title to 
 personal property; that the right of property in external 
 things in the aggregate belongs to the human race collec- 
 tively; that he who first appropriated a thing to his own 
 use acquired a property therein, and an .exclusive right 
 thereto, which property and right continued so long as the 
 
 zsBouT. L. Diet. "Intestacy;" 2 Black. Com. p. 494. 
 
 28 Ferrie v. The Public Administrator, 3 Bradf. Surr. Rep. 249, 
 262; Beattie v. Abercrombie, 18 Ala. 9; Sneed v. Hooper, Cooke 
 (Tenn.), 200; Beecher v. Buckingham, 18 Conn. 110; State v. 
 Moore, 18 Mo. App. 406; Palmer v. Palmer, 55 Mich. 293." 
 
 27 Supra, § 33. 
 
106 INTESTACY. [§ 70. 
 
 exclusive use or occupancy continued, and no longer. That 
 when possession was abandoned the right was lost, and any 
 other person might appropriate the thing to his own use, 
 with the like right and limitation; and so on in succession 
 indefinitely. The abandonment of the thing by the pos- 
 sessor relegated it to the common stock belonging to man- 
 kind as a whole. In other words, the abandoned thing be- 
 came a part of the unappropriated body of property known 
 as bona vacantia; and the death of the possessor was re- 
 garded as an abandonment having this effect. 
 
 Eeferring especially to England, in the progress of 
 events bona vacantia became the property of the king. He 
 seized upon such goods as parens patricB and general 
 trustee of the kingdom. 
 
 Originally the king exercised this prerogative by his 
 own ministers of justice; but later it was granted as a 
 franchise to many of his lords of manors, and others who 
 thereunder acquired a right to grant administration to 
 their intestate tenants and suitors in their own courts 
 baron, and other courts. 
 
 Subsequently the crown granted this right to the popish 
 clergy. The ordinary — i. e. one who had ordinary or im- 
 mediate jurisdiction in matters ecclesiastical, an ecclesiasti- 
 cal judge — ^might seize and keep the goods of an intestate, 
 keep them without wasting, give, alien, or sell them at will, 
 and dispose of the proceeds in pios usus. 
 
 But the clerical garb was not proof against temptation, 
 and after a while the clergy came to the pious conclusion 
 that they were the rightful beneficiaries, and appropriated 
 to themselves most of the estates thus left them in trust, 
 without even paying the debts of the deceased. 
 
 Finally, Parliament interposed and placed administra- 
 tion in the hands of the "nearest and most lawful friends 
 
§ 70.] INTESTACY. 107 
 
 of the deceased;" and by a subsequent act, it was granted 
 either to the widow, or next of kin, or both.^* But the 
 ordinary still had jurisdiction in the administration of es- 
 tates, and granted letters, the administrators being re- 
 garded as his officers. 
 
 This is the origin, and history in brief, of administration 
 in England. It will be seen that the administration of 
 the property of an intestate is based upon the doctrine 
 that his_J£ath_was a n abandonme nt of title, and that his 
 personality thereupo n became bon a vacantia, passing to 
 the sovereign as the parens patriee, or general trustee of 
 
 the realm. The lp. rm.l titl^ VRsts in t.Tio PT-nwn ; t.^ift pquitth- 
 
 ble titl e in decede nt's credit ors and nest of kin . 
 
 The same doctrine prevails in the American States, sub- 
 stituting "government" for "king" or "crown," and, as 
 a necessary sequence, intermediate the death of intestate 
 and the issuance of letters of administration, the legal title 
 to his personal property vests in the government in trust.''' 
 
 There are cases, however, holding that after the death of 
 the intestate his personal property may be considered in 
 abevanc e"till admin istrati on grantedTand is then v ested in 
 the administrator by relation to the time of decedent's 
 death. ^^ But to this view there are several objections. 
 First, it is historically illogical; secondly, it is in conflict 
 with the axiomatic principle that in the matter of title to 
 
 2s statutes, 31 Edw. Ill, c. 11; and 21 Hen. VIII, tj. 5. 
 
 29 2 Black Com. pp. 3, 11, 259, 401, 494-496; Pom. Munic. L. § 787; 
 Aspinwall v. The King's Proctor, Curt Ecc. 246; Hensloe's Case, 
 9 Rep. 37, 38; Public Administrator v. Hughes, 1, Bradf. Surr. 
 Rep. 125, 128. 129; Ferrie v. The Public Administrator, 3 Id. 249, 
 
 262, 263. 
 
 30 jewett V. Smith, 12 Mass. 309; Clapp v. Stoughton, 10 Pick. 
 463; Lawrence v. Wright, 23 Id. 128; Brackett v. Hoitt, 20 N. H. 
 257; McVaughters v. Elder, 2 Brev. (S. C. , 307; Miller v. Reigne, 
 2 Hill (S. C), 592. 
 
108 INSOLVENCY. [§. 71. 
 
 property the law abhors a vacuum, that the title must be 
 somewhere; and, thirdly, it leaves the personal effects of 
 intestate without lawful custody and protection until the 
 grant of administration, which is often delayed for a con- 
 siderable length of time. Tr ue, on the appointment of an 
 ad ministrator, the legal title passes to him bv operation of 
 law, and relates ba ck to the death of the intestate for t he 
 purpose s ot securing the estate, and protecting persons 
 dealing with parties entitled to administration. The ad- 
 ministrator may maintain an action for an unredressed 
 tortious injury to, or conversion of, the property of the 
 estate prior to his appointment.*^ Yet the want of present 
 adequate protection intermediate his appointment and the 
 death of the intestate, might result in irreparable injury 
 to the estate. 
 
 While the legal title to the intestate's personal property 
 is in the administrator as trustee, so that for the purposes 
 of administration he may sell the same and give a good 
 title to the purchaser, the next of kin have a vested inte r- 
 es t ia JJifi-s urplus of the^ fis tato. afte r the p'ayment of the 
 debts.'^ 
 
 The appointment, powers, and duties of an administra- 
 tor, and the distribution of intestate's personal property, 
 are generally regulated by statute; and the rules of the 
 common law are more or less modified in most, if not all, of 
 the American States. 
 
 V, Insolvency. 
 § 71. Meaning of the terms insolvency, and bank- 
 ruptcy. — This mode of acquiring title to personal prop- 
 si Citations supra, and Dayt Surr. p. 234; Valentine v. Jackson, 
 
 9 Wend. 302; Babcock v. Booth, 2 Hill, 181; Vroom v. Van Home, 
 
 10 Paige, 549. 
 
 82 Ferrie v. The Public Administrator, 3 Bradf. Surr. Rept. 
 249, 262; Pom. Munic. L. § 798. 
 
§ 72.] INSOLVENCY. 109 
 
 erty embraces bankruptcy, wbich is included in the generic 
 term insolvency. 
 
 "Writers do not agree in respect to the derivation of the 
 word bankruptcy. The weight of authority favors the 
 view that it is derived from the words iancas, which means 
 the table or counter of a tradesman, and ruptus, broken, 
 signifying the broken bench or counter, and denoting one 
 whose shop or place is broken or gone. This view is rend- 
 ered probable from the custom said to have once existed 
 among the bankers of Italy, who carried on the business in 
 public places, seated on forms, with benches on which to 
 count their cash. When one became insolvent, his bench 
 was broken, either as a mark of reproach, or to make room 
 for another.^^ 
 
 The word insolvent means not solvent. In law it ex- 
 presses the state of a person who is unable, for any cause^ 
 to p ay his debt s. Or, what is perhaps a better definition, 
 the state of one who i ° iipQi^io tft pay his debts as they fall 
 due i n the usual course of trade or business .'* 
 
 § 72. Distinction between bankrupt, and insolvent, 
 laws. — Originally there were several points of difference 
 between bankrupt and insolvent laws, and such distinc- 
 tions still exist where they are not modified or obliter- 
 ated by statute. 
 
 1. Bankrupt laws apnlv onlv t,n trad ps^ (^v mprpbants ; 
 while insolvent laws apply to all indiscriminate ly. 
 
 2. Bankrupt laws discharge absolutely th e obligation of 
 
 88 2 Black. Com. p. 472; Bouv. L. Diet "Bankruptcy;" 8 Pars. 
 Cont. (7- Ed.), p. 423, n. (b); 1 Beaw, Lex. Merc. 371. 
 
 34 Bouv. L.. Diet. "Insolvency;" Ferry t. The Bank of Central 
 New York, 15 How. Pr. Rep. 445, 451; Thompson v. Thompson, 
 4 Gush. 134; Brower v. Harbeck, 9 N. Y. 589; Lee v. Kilburn, 3 
 Gray, 594; Hazleton v. Allen, 3 Allen, 114. 
 
110 INSOLVENCY. [§ 73. 
 
 the honest debtor; while insolvent laws discharge only the 
 PG TSon of the debtor, lea ving his future acquisitions still 
 liabl e for his de bts. ' ~ ' 
 
 3. Formerly , while all p ftT^onf "wing d^'bta f^n^d^t^" 
 the benefit,ji£-aa-iiisolEeat__law, none who were not trad- 
 ers, _or_jgita£i_tradera__could__be_Jorced^Jnt^ 
 against their will , at the snit of others. 
 
 But these distinctions are of very little practical im- 
 portance at present, in this country, having been quite 
 generally, obliterated by the legislation both of the Federal 
 Government and the States.'' 
 
 § 73. General purposes, and effect, of insolvent laws. — 
 "We have seen that one of the li mitatiop g tft ^^'^ ahsn. 
 lute nwrifirship of pprsonal proper ty, is its liability for the 
 satisfaction of all his just debts, except in so far as it may 
 be exempt by statute.^' 
 
 The effect of insolvency is, in contemplation of law, to 
 convert the insolvent's estate into a common fund for the 
 payment of his debts. The proceedings in bankruptcy, or 
 insolvency, constitute the legal machinery by which the 
 estate is transferred to his creditors.*' 
 
 Under these proceedings the insolvent's property is 
 transferred by operation of law to an assignee or trustee, 
 who is clothed with authority to administer the same for 
 the benefit of creditors. He sells the property, or so much 
 thereof as may be necessary for the purpose, and, after 
 
 M3 Pars. Cont. (7 Ed.), pp. 430, 431; R. S. of U. S. (2 Ed.), 
 § 5014; Blanchard v. Russell, 13 Mass. 1; Ogden v. Saunders, 12 
 Wheat. 213; Sturges v. Crowninsliield, 4 Id. 119; Sackett v. Aa- 
 dross, 5 Hill, 327; Adams v. Storey, 1 Paine C. C. 79. 
 
 88 Supra § 5; and see 3 Pars. Cont. (7 Ed.), pp. 428, 429. 
 
 »7 Sturges V. Crowninshield, 4 Wheat 195. 
 
§ 7*-] mSOLVBNOT. Ill 
 
 paying expenses of administration, distributes the residue 
 among the creditors pro rata, if the fund be insufficient to 
 pay them in full. If there be a surplus after paying ex- 
 penses and all the creditors in full, it is paid over to the 
 insolvent or his legal representatives. 
 
 The operation of these laws embraces two classes of 
 debtors: 1. Dishonest debtors, who do not wish or intend 
 to pay their debts, in whose case the law interposes and 
 does for them, and for the benefit of their creditors, what 
 they ought to do voluntarily, but will not. 2. Honest debt- ' 
 ors, who wish to pay their debts, but are unable to do so 
 in full. In this class of cases the law comes to the aid of 
 both debtor and creditor, takes the property of the for- 
 mer for the benefit of the latter, and relieves the honest 
 but unfortunate debtor from further obligation and em- 
 barrassment.** 
 
 § 74. United States bankrupt, and insolvent laws.— 
 Under the Federal Constitution Congress is authorized to 
 establish "uniform laws on t he sub.iect of bankruplx dea 
 throughout the United States. ' ''* In virtue of this author- 
 ity, Congress has enacted four general laws on the subject, 
 three of which have been repealed, viz: 1. The act of 
 1800, repealed 1803; 2. The act of 1841, repealed 1843; 
 and 3, The act of 1867, repealed 1878, and the act of 1898, 
 as amended by the act of 1903, which is now in force.*" 
 
 It is well settled that the Sta tes have the re^ p^^"'^ p^woT- 
 to e naet insolvent laws, notwithstanding the authority 
 vested in Congress by the United States Constitution, and 
 the laws passed on the subject by Congress and the State 
 
 88 3 Pars. Cont. p. 431; 2 Black. Com. pp. 473, 474. 
 »» U. S. Const. Art I, § 8. 
 41) Collier Baiikruptcy, p. 861. 
 
112 INSOLVENCY. [§ 74; 
 
 legislature, have, generally, each contained the distinctive 
 feautres of both bankrupt and insolvent laws.*^ 
 
 To the power of the States, however, there are certain 
 limitations. 
 
 1. T>i(^Rtji.t.A hanTrm pt or insnlvpnt. law must not imp air 
 the obli gation of a contra ct. 
 
 2. It mns t, Tint ponflifit with any existing act of ConsTress 
 on the subjec t. 
 
 3. The State cannotjass a law that s haUac t upon t he 
 [rights 9f_citi2ens^ of ^thg r States, who do not volunta rily 
 
 become parties to proceedings under it affecting such 
 I rights.** 
 
 As to when statutes are in conflict it is held, that two 
 having the same general object, and a cting upon the sam e 
 persons anJ~the same cases, by different modes and in dif- 
 ferent jurisdictiojLS,_must be in conflict with each oth er. 
 Though the modes by which the remedy is administered 
 may vary, yet, where the bankrupt act and the State in- 
 solvent law have substantially the same scope and object, 
 and act upon the same persons and cases, the State law is 
 suspended.*' 
 
 The effect of a conflict is to suspend, not to abrogate, 
 the State insolvent law. If the act of Congress which sus- 
 pends a State law be repealed, the latter is thereby revived 
 and rendered operative.** 
 
 «2 Kent, Com. p. 391; 3 Pars. Cont pp. 435-446; Story's C!om. 
 on Conts. U. S. Vol. Ill, p. 11. 
 
 *2 2 Kent, Com. p. 391, et seq.; Sturges v. Crowninshield, 4 
 Wheat. 122; Gibbons v. Ogden, 9 Id. 197, 227, 235, 238; Houston 
 V. Moore, 5 Id. 34, 49, 52, 54; Ogden v. Saunders, 12 Id. 213; 
 3 Pars. Cont. (7 Ed.), pp. 431-446. 
 
 «M!artin v. Barry, 2 Bankr. Reg. 629, 37 Cal. 208; Van Nos- 
 trand v. Carr, 30 Md. 128; Shears v. Sollinger, 10 Abb. Pr. Rep. 
 (N. S.), 287; 3 Pars. Cont. (7 Ed.), p. 446 and notes. 
 
 ** Sturges V. Crowninshield, 4 Wheat 122; 3 Pars. Cont (7 
 Ed.), p. 446. 
 
§ 76.] MARRIAGE. 113 
 
 VI. Marriage. 
 
 § 75. Transfer of chattels by marriage. — At common 
 law marriage vests the husband with title to the chattels of 
 the wife, and with the same degree of property, and the 
 same powers, as the wife when sole had in and over them.*" 
 
 This effect of marriage is the logical outcome of the doc- 
 trine that husband and wife constitute a unit, of which 
 the husband is the embodiment. By the common law the 
 individuality, and being, even, of the wife is in a degree 
 suspended during coverture, or legally merged in that of 
 her husband.*" 
 
 The personal property of the wife in possession at the 
 time of her marriage, in her own right, vests immediately 
 and absolutely in her husband. He can dispose of it at 
 will, and on his death it passes to his representatives.*^ 
 
 § 76. As to the wife's choses in action. — The husband 
 
 h as a^ Ual^P'^ P^^P'^rtiy ] V the r,hn.<t p,o i-" nrtiyvn. ViAlrmgnng 
 
 t" b^s wi^f ft t.TiPjrr ne of their marria ge: but tq^ofctai n an 
 absolute title, and rend er them availabla^tn him, he must 
 reduce them to possessionjby some unfigniiQeal act aignify- 
 ing his claim of ownership. He may^ue^r^asd, recover, or 
 release and assign, them; and when^recove red or assig ned 
 the avails, whether in specie or money, become absolutely 
 his own property.*' 
 
 40 2 Black. Com. p. 433; 2 Kent, Com. pp. 130, 134; Reeve, Dom. 
 Rel. (4 Ed.), p. 1, et seg.; Browne, Dom. Rel. p. 29; Bish. Mar. 
 Div. and Sep. §§ 14, 15. 
 
 4«2 Black. Com. p. 433; 2 Kent, Com. p. 129. 
 
 « 2 Kent. Com. p. 143; Hyde v. Stone, 9 Cow. 230; Harper v. 
 McWhorter, 18 Ala. 229; Mahoney v. Bland, 14 Ind. 176; Burgess 
 V. Heape, 1 Hill (S. C), Ch. 397; Vaden v. Vaden, 1 Head 
 (Tenn.), 444; Carleton v. Lovejoy, 54 Me. 445. 
 
 "2 Kent, Com. p. 135; Reeve, Dom. Rel. (4 Ed.), p. 2, and 
 
 8 
 
114 MAKEIAGB. [§ 77. 
 
 But, in case thg_husband die s wi thout hav ing redu ced 
 the chos e in action to posse ssion, it will belong to the wife 
 in her own right without administering on his estate.*' 
 
 On the other hand, in case of the wife's death before 
 the husband has reduced her choses to possession, he, sur- 
 viving her, is not vested with the absolute title in virtue 
 of his marital rights; but he may recover the same to his 
 own n spi t bT-nng fh Ipt.tp.rg of administratio n, to which the 
 husband is generally entitled.""* 
 
 § 77. No unjust discrimination against the wife. — To 
 
 relieve the common law from the unmerited reproach cast 
 upon it by ardent reformers, on account of its alleged 
 cruel discrimination against the wife, it should be noticed 
 that the marital relation lays burdens upon the husband 
 from which the wife is relieved. He becomes liable for 
 the payment of her debts contracted before marriage, even 
 though she brings him no dower."^ He is obliged to main- 
 tain his wife, and provide her with necessaries suitable to 
 her situation and his condition in life, and he is liable for 
 debts that she may contract for such things during cohab- 
 itation." 
 
 notes; Winslow v. Crocker, 17 Me. 29; Tryon v. Sutton, 13 Cal. 
 490; Fourth Ecclesiastical Soc. v. Mather, 15 Conn. 582; Young v. 
 Ward, 21 111. 223; Evans v. Secrest, 3 Ind. 545; Lowery v. Craig, 
 30 Miss. 19; Tritt's Adm'rs v. Colwell's Adm'rs, 31 Penn. 232. 
 
 «2 Kent, Com. p. 135; Reeve, Dom. Rel. (4 Ed.), p. 4, and n. 
 1; Legg V. Legg, 8 Mass. 99; Howes v. Bigelow, 13 Id. 384; G-rls- 
 wold V. Penniman, 2 Conn. 564; Searing v. Searing, 9 Paige, 283. 
 
 so 2 Kent, Com. p. 135; Reeve, Dom. Rel. (4 Ed.), p. 13; Gar- 
 forth V. Bradley, 2 Ves. 675; Richards v. Richards, 2 Bam. and 
 Adol. 447; Barnes v. Underwood, 47 N. Y. 351. 
 
 512 Kent, Com. pp. 143, 144; Browne, Dom. Rel. pp. 18, 19; 
 Reeve, Dom. ReL (4 Ed.), p. 95, et seq. 
 
 52 2 Kent, Com. pp. 146-149; Browne, t>om. Rel. pp. 20-25. 
 
§ 77.] MARRIAGE. 115 
 
 He is also liable for her torts committed both before 
 and after marriage."' 
 
 Not merely does the law relieve the wife of burdens in- 
 cident to humanity, and lay them upon her husband, but 
 it carefully and tenderly provides protection for her rights, 
 and security against injustice and oppression by her hus- 
 band. If, for example, the husband seeks the aid of a 
 court of equity to get possession of his wife's property to 
 which he may be entitled in law, he will be required first 
 to make a reasonable provision out of it for the mainten- 
 ance of herself and her children. 
 
 And chancery will sometimes restrain the husband from 
 recovering her property at law, until a suitable provision 
 is made for her support."* 
 
 It only remains to notice, that by statute in most of the 
 States of the Union, the wife is empowered to hold and 
 deal with her property independent of her husband, with 
 equal freedom, and to the same extent, as a feme sole. 
 
 For the law on this subject as thus changed, reference 
 must be had to the statutes of the several States. 
 
 53 2 Kent, Com. pp. 149, 150; Reeve, Dom. Rel. (4 Ed.), p. 
 100; Browne, Dom. Rel. p. 26. 
 
 »« 2 Kent, Com. p. 139, et seq.; Reeve, Dom. (4 EM.), p. 12 and 
 notes. 
 
116 GITT INTEB VIVOS. [§ 78. 
 
 CHAPTER IX. 
 
 THB THIRD GENERAL MODE OF ACQUIRING TITLE TO 
 
 PERSONAL PROPERTY— TRANSFER BY ACT 
 
 OF THE PARTIES. 
 
 §§ 78-84. Gift s inter viv os. 
 85-89. dift s causa mo rtis. 
 90-95. Title by will or testam ent 
 96-114. S ales. 
 
 115. Indorgsmgnt. 
 
 116. Assi gnmen t. 
 
 117. Bail ment 
 
 This general mode includes: I. Gifts inter vivos; 
 II. Gifts causa mortis; III. Title by will or testament; 
 IV. Sales; V. Indorsements; VI. Assignments; VII. Bail- 
 ments. 
 
 These will now be severally discussed in their order. 
 
 I. Gifts Inter Vivos. 
 
 § 78. Definition, and subjects, of these gifts. — A gift 
 inter iiiiinx ]<i a voluntary, actual, and immediate transfe r 
 of a thing by one living person to. or for, another livin g 
 person . The student should observe that the terra 
 "vo luntar y" here, and generally in the law, me ans wit.Tinn t 
 con^ijifiiation.^ 
 
 iBouv. L. Diet, "Gift;" 2 Kent Com. p. 438, et seq.; 1 Pars. 
 Cont (7 Ed.), pp. 234-236; 2 Sell. Pers. Prop. p. 68, et seq.; Will- 
 iams, Pers. Prop. p. 36; Bish. Cont (2nd Bnl. Ed.) §§ 82, 83; 
 Faxon v. Durant, 9 Met 339; Penfield v. Thayer, 2 E. D. Smith, 
 305. 
 
§ 79.] GIFT INTEE VIVOS. 117 
 
 Personal property of every descr rotion. corporeal or in - 
 c orporeal, may be transferred by gif t.^ 
 
 § 79. D elivery esiiieTitia l. — Tq^ complete a transfer by 
 gift, the donor must have a present intention of renoun- 
 cing aU right to, and dominion over, the thing given, with- 
 out po wer of revocation, and he must deliver p osses- 
 sion to, or for the don ee.^ This rule is satisfied by an 
 absolute delivery to a third person divesting the posses- 
 sion and title of the donor, and intended to confer the 
 title upon the donee.* And it has been held, even, that 
 the donor may, by an apt declaration to that effect, con- 
 vert himself into a trustee for the donee." Delivery may 
 be constructive or symbolical, as well as actual and man- 
 ual, but delivery must be actual if the thing is capable 
 of delivery." 
 
 A debt due from the donee to the donor may be the 
 subject of a gift from the latter to the former; and the 
 gift may be consummated by a delivery to the donee by 
 the donor of any evidence of the debt existing; and if 
 there be none, then by a delivery of a receipt in full.' 
 
 2 Citations last supra; and see Bogan v. Finlay, 19 La. An. 94. 
 
 3 Citations supra under § 78; Sewal v. Glidden, 1 Ala. 52; An- 
 derson V. Baker, 1 Ga. 595; People v. Johnson, 14 III. 342; Dole 
 V. Lincoln, 31 Me. 422; Reed v. Spaulding, 42 N. H. 114; Carpen- 
 ter V. Dodge, 20 Vt. 595; Irish v. Nutting, 47 Barb. 370; Brink v. 
 Gould, 7 Lans. 425; Jackson v. Twenty-third Street Railway Co., 
 88 N. Y. 520, 526; Wkllace v. Burdell, 97 Id. 131. 
 
 *Hurlbut V. Hurlbut, 49 Hun, 189; Young v. Young, 80 N. Y. 
 422, 430; Hutchings v. Miner, 46 N. Y. 456; Sch. Pers. Prop. pp. 
 80, 82. 
 
 B Taylor v. Kelley, 5 Hun, 115; Gray t. Barton, 55 N. Y. 68, 72. 
 
 « Citations supra under § 78; Allen v. Cowan, 23 N. Y. 502; 
 Marsh v. Fuller, 18 N. H. 360; Cooper v. Burr, 45 Barb. 9; Hack- 
 ney v. Vrooman, 62 Id. 650; Camp's Appeal, 36 Conn. 88; Gardner 
 V. Merritt, 32 Md. 78. 
 
 1 Gray v. Barton, 55 N. Y. 68; 2 Sch. Pers. Prop. p. 90. 
 
118 GIFT INTER VIVOS. [§ 80. 
 
 If the subject of the gift be a chose in action, there must 
 be an assignment or what is equivalent to it, and the 
 transfer must be actually executed.* 
 
 A wriftATi ggj^jipminpnt nn/^oT oool r>f T nonfiy in POSSeSSJOn 
 
 of ^^ third person, delivered to the assignee, may constitut e 
 a v alid gift^ and acc eptance of the m oney.' 
 
 Equ itable assignmen ts, are recognized and enforced 
 where there is not a perfect legal transfer under the rules 
 of the common law, and yet where the donor has so far 
 completed his gift that the donee is entitled, in justice, 
 to invoke the aid of a court of equity to perfect his title.^" 
 
 § 80. Validity of gifts. — Stole n goods cannot be the 
 subject of a valid gift as against the true owner. The 
 thief takes no transmissible interest. The general rule of 
 law that one cannot transfer a better title than he posses- 
 ses applies with full force to gifts.^^ But the e quities of 
 subsequ ent bonaiHrJ/i purf ^hfliR''"' "^^^ b e respected .^' 
 
 Gifts of chattels prejudicial to the rights of creditors 
 are invalid. It is a well established rule of law, that a 
 man holds his property subject to its liability for his 
 debts. He must be just before he is generous, and he is 
 not at liberty to alien his property by gift, or otherwise, 
 in fraud of his creditors.^* 
 
 8 2 Sch. Pers. Prop. pp. 72-74; 2 Kent, Com. p. 439. 
 
 9 Matson v. Abbey, 141 N. Y. 179. 
 
 10 2 Sch. Pers. Prop. pp. 75-79; Williams, Pers. Prop. p. 36; 
 Grover v. Grover, 24 Pick. 261; Wing v. Merchant, 57 Me. 383; Al- 
 lerton y. Lacey, 10 Bosw. 362; Ellison v. Ellison, 6 Ves. 656; Ex 
 parte Dubost, 18 Id. 140, 150; Vandenberg v. Palmer, 4 Kay & 
 John. 204. 
 
 11 2 Sch. Pers. Prop. 100; Hoffman v. Carow, 22 Wend. 285. 
 
 12 2 Sch. Pers. Prop. p. 100; Anderson v. Green, 7 J. J. Marsh, 
 448; Black y. Thornton, 31 Ga. 641; Green y. Komegay, 4 Jones 
 (N. C), L. 66; Moultrie y. Jennings, 2 McNull (S. C), 508. 
 
 ufittpra, § 5; 2 Sch. Pers. Prop. p. 101, et seq.; 2 Kent, Com. 
 
§ 82.] GIFT INTER VIVOS 119 
 
 § 81. Gifts on condition, with reseirvation, or a trust. — 
 Gifts are sometimes made with a condition or reserva- 
 tion imposed by the donor, in which cases the transfer 
 is sometimes upheld as a qualified gift, and sometimes 
 fails altogether, according to circumstances.^* 
 
 If there be a lawful condition precedent imposed, the 
 gift will take effect when, and only when, the condition 
 is complied with.^^ 
 
 Trusts are sometimes attached to gifts at the time of 
 delivery, which are sustained by the courts.^' 
 
 § 82. Gifts between parent and child. — Ordinarily the 
 law does not presume a gift; but, in the absence of quali- 
 fying or contrary evidence, a delivery of personal property 
 by a parent to his child, on or after marriage, will be 
 regarded as a gift or advancement. And, generally, less 
 evidence is requisite to characterize the transfer of per- 
 sonal property by parents to children as a gift, than in 
 cases of non-kinship.^^ 
 
 pp. 440-443; 1 Pars. Cont. (7 Ed.), p. 235; Thomson v. Dougherty, 
 12 Serg. and R. 448; Hanson v. Buckner, 4 Dana, 251; Sexton v. 
 Wheaton, 8 Wheat. 229; Gannard v. Elslava, 20 Ala. 732; Clark 
 V. Depew, 25 Penn. St. 509; Trimble v. Ratcliffe, 9 B. Mon. 511. 
 
 1* Citations last supra; The Lucy Ann, 23 Law Rep. 545; Due- 
 laud V. Rousseau, 2 La. An. 168; Wolf v. E)stes, 7 Ind. 448; Hope 
 V. Hutchins, 19 Gill and J. (Md.), 77; Duncan v. Self, 1 Murph. 
 (N. C. , 446; Pitts v. Mangum, 2 Bailey, 588; Withers v. Weaver, 
 10 Penn. St. 391. 
 
 IB 2 Sch. Pers. Prop. p. 116; Berry v. Berry, 31 Iowa, 415; Mart- 
 rick V. Linfield, 21 Pick. 325. 
 
 18 2 Sch. Pers. Prop. pp. 115-117; Marston v. Marston, 1 Post 
 491. 
 
 iTHallowell v. Skinner, 4 Ired. (N. C.) L. Ii65; White v. Pal- 
 mer, 1 McNull (S. C), Ch. 115; Whitfield v. Whitfield, 40 Miss. 
 352; Syler v. Eckhart, 1 Binn. (Pa.), 378; Young v. Glendemnig, 
 6 Watts (Pa.), 509; Van Deusen v. Rowley, 8 N. Y. 358; Caldwell 
 V. Pickens, 39 Ala. 514. 
 
120 GIFT INTER VIVOS. [§ 84. 
 
 But a gift by the child to the parent, while the former 
 is still under parental authority, is presumed to be made 
 under parental anfluence, and therefore invalid. The bur- 
 den of proof rests upon the parent to rebut the presump- 
 tion, by showing that the child had independent advice, 
 or was otherwise in a position to exercise an independ- 
 ent judgment as to the gift.^* 
 
 § 83. Gifts between husband and VTlfe. — ^At common 
 law there cannot be a gift from the husband to the wife 
 during coverture, they being one person only, in contem- 
 plation of law. But equity has always upheld such gifts, 
 whether made with, or without, the intervention of a trus- 
 tee, when the claims of creditors were not affected.^* 
 
 § 84. Revocation of gifts. — "Wh en a gift is fuUy exe- 
 cuted it is irrevocable as to the partie s a"f) ihmv ipo-al rep- 
 re sentatives, ex cept fQ £_ fraud, for ce, undue influence, o r 
 men tal incapacity on the part of t he donor. Gifts are no 
 more revocable in their nature than transfers of property 
 in other modes. Possession being given with intent to part 
 with the property in the thing, the right of ownership and 
 dominion for all purposes goes with it. But in behalf of 
 creditors and bona fide purchasers, executed gifts may be 
 set aside.'* 
 
 "Story, Eq. Jur. | 309; Pom. Eq. Jur. § 962; Browne, Dom. 
 Rel. p. 78; Burgen v. Udal, 31 Barb. 9; Taylor v. Taylor, 8 How. 
 199; Archer v. Hudson, 7 Beav. 551. 
 
 19 2 Kent, Com. p. 163; Shuttleworth v. Winter, 55 N. Y. 624; 
 Rynders v. Crane, 3 Daly, 339; Scott v. Simes, 10 Bosw. 314; 
 Woodson T. McClelland, 4 Mo. 495; Neufville v. Thomson, 3 Edw. 
 Ch. 92; Mack v. Mack, 3 Hun, 323. 
 
 20 2 Sch. Pers. Prop. p. 114; 2 Kent, Com. p. 440; 1 Pars. Cont 
 (7 EM.), p. 236; Sanborn v. Goodhue, 28 N." H. 48; Thomson v. 
 Dougherty, 12 Serg. & R. 448; Hanson v. Buckner, 4 Dana, 251; 
 
§ 85.] GIFTS CAUSA MORTIS. 121 
 
 II. Gifts Causa Mortis. 
 
 § 85. Definition. — ^Various definitions of gifts causa 
 mortis are found in the books, differing in some unimport- 
 ant respects, but none is more accurate and comprehen- 
 sive than that of Judge Redfield. He says: " They may 
 b e defined as gifts of personal esta te, made_ui_Iiixispeet 
 o f death at n o very remote per io d, and which are de- 
 pendent upon the condition o f d eath occurring subst an- 
 tially as _expected by the donor, and that the same be n ot 
 revok ed before deat h.'^ 
 
 The original source of our law upon this species of gift 
 is found in the civil law.'^ It occupies a middle ground 
 between gifts inter vivos and legacies, partaking in some 
 respects of the nature of both, while differing from each 
 in other particulars.''' It h as the substantial qualities of 
 a legacy in being ambulatory and revocable during the 
 li fe of the donor , in not vesting until donor's death, and 
 in being subjec t to the debts o f the deceased;. bu t diffe rs 
 from a leg acy in that no action of a court, or ag§ent_Qf_±h£ 
 executor, is ess ential to confirm and pffectna.t. e it.^* It is 
 li ke a gift inte^r mv os iTi_rf;spftP,t tn the fimnpptpnfiy nf tlipi 
 donor, th e subjects ^oLt^" S'^^j what_ constitutes the gif t, 
 
 Clark v. Depew, 25 Penn. St. 509; Saxton v. Wheaton, 8 Wheat. 
 229. 
 
 21 3 Redf. Wills (2 Ed.), p. 322, § 42; and see 2 Sch. Pers. Prop, 
 p. 122; 2 Black. Com. p. 514; 2 Kent, Com. p. 444; Bouv. L. Diet. 
 "Donatio mortis causa;" Michener v. Dale, 23 Penn. St. 59; Nich- 
 olas V. Adams, 2 Whart 22; And. L. Diet. "Donatio mortis causa." 
 
 22 2 Kent, Com. p. 444. 
 
 23 3 Redf. Wills (2 Ed.), p. 322, § 42, sub. 3; 2 Sch. Pers. Prop, 
 p.' 126; Bunn v. Markham, 7 Taunt. 224, 231; Merchant v. Mer- 
 chant, 2 Bradf. Surr. Rep. 432; Ward v. Turner, 2 Ves. Sen. 431, 
 439, 440; Lawson v. Lawson, 1 P. Wms. 441. 
 
 24 Citations last supra. 
 
122 GIFTS CAUSA MOETIS. [§ 86. 
 
 d elivery, a n d invalidity as ap rainst. t.hft rip ;hts of crftditor s : 
 and unlike in respect of its revocability during the life of 
 the donor.^" 
 
 § 86. Essentials to this gift. — To constitute a gift causa 
 mortis four elements are essential: 1. It must be made 
 w ith a view to donor's death from prftsftnt illn PHg^ nr from 
 exte rnal and apprehended peril j 2. TVio ^^f^nor mngt /^^P 
 o f th:it nilmont nr jirTn] ^ 3. Ther e must be a ^pIivptv: 
 4. The fflft must be absol ute. 
 
 Under the head of gifts inter vivos were discussed the 
 competency of the donor, the subjects of the gift, renun- 
 ciation of the donor, delivery, and the effect upon credit- 
 ors of the donor ;^° and as the same doctrines apply to and 
 govern gifts causa mortis in the particulars named, it is 
 only necessary here to consider the rules specially applica- 
 ble to this species, and not common to both. 
 
 1. The gift must be made with a view to the donor's 
 death from present illness, or from external and appre- 
 hended peril. 
 
 This requisite has been the subject of much difference 
 of opinion. But the general doctrine established by the 
 best considered cases is, that the donor must be in expect- 
 ation of death, then imminent, either from illness or ex- 
 ternal peril.^^ 
 
 It is not necessary, however, that the donor should be 
 in extremis. It is only necessary that he shall not recover 
 from the disease from which he apprehended death.^' 
 
 25 Citations last supra; and see 1 Pars. Cont. (7 Ed.), p. 237. 
 
 26 Supra, §§ 78-84. 
 
 2' Gourley v. Linsenbigler, 51 Penn. St. 345; Irish v. Nutting, 
 47 Barb. 370; Nicholas v. Adams, 2 Whart. 17; Smith v. Borsey, 
 38 Ind. 451; Craig v. Kittredge, 46 N. H. 57. 
 
 28 Ridden V. Thrall, 125 N. Y. 572. 
 
§ 87.] GIFTS CAUSA MOKTIS. 123 
 
 2. The donor must die of the ailment, or peril, in view 
 of which the gift was made. If he be ill and recover, or 
 in peril and escape, the gift does not take effect. On this 
 point the authorities are in harmony.^* 
 
 § 87. Title of donee, delivery, and effect. — ThfLjifliifie 
 de rives title directly from the donor in his lifetime , and 
 not from his executors, or by virtue of administration. 
 Nor has the executor or administrator of the donor any 
 claim upon the subject of the gift, for the purpose of ad- 
 ministration and the shares of distributees.'* 
 
 To complete this kind of gift, as in case of gifts inter 
 vivos, dfilivpTv I'g PSfiPTitia.1 But there are some points of 
 difference between the two species in this regard, which 
 should not be overlooked. In the case of a gift inter vivos 
 there must be such a delivery by the donor, either actual 
 or symbolical, to or for the donee, as will divest the for- 
 mer of all title to, and dominion over, the subject of the 
 gift, and irrevocably vest the same in the donee. In the 
 case of gifts causa mortis a distinction is made between 
 delivery to an agent of the donor, and a trustee of the 
 donee. The possession of the agent would be the posses- 
 sion of his principal, the donor, whose death would termi- 
 nate the agent's authority, so that he could not thereafter 
 make a valid delivery to the donee. But possession of the 
 trustee would be the possession of his principal, the donee ; 
 so that delivery to the trustee is, in effect, delivery to the 
 donee, thus completing the gift, subject to revocation. 
 
 28 3 Redf. Wills (2 Ed.), p. 324, | 42, sub. 5; 2 Kent, Com. p. 
 444; 2 Sch. Pers. Prop. p. 151; Drury v. Smith, 1 P. Wms. 404; 
 Blount V. Burrow, 1 Ves. Jun. 546; Grymes v. Hone, 49 N. Y. 
 17, 20. 
 
 aoGannet v. Tucker, 18 Ala. 27; House v. Grant, 4 Lans. 296; 
 Webster v. DeWitt, 36 N. Y. 340. 
 
124 GIFTS CAUSA MOETIS. [§ 88. 
 
 The trustee has power to make actual delivery to the donee 
 after the donor's death, in case of non-revocation. 
 
 The fact that the donor of a gift causa mortis has, dur- 
 ing his life, the power of revocation, logically implies that 
 such a delivery has taken place as would sustain a gift in- 
 ter vivos, otherwise there would be nothing to revoke.*^ 
 
 § 88. Revocation. — We have seen that gifts inter vivos, 
 when complete, are irrevocable.'^ But a gift causa mortis, 
 until fuUy confirmed by the donor's death as contempla- 
 ted, is revocable in three instances: 1. By the donor's re- 
 p. nvftry fT-fiTn t.Tip particular illness, or escape from the im - 
 minent pn^i'i j j view of which the gift was mad e; 2 . By 
 the d''"^^^ f)^' ^^^ f^n^ qe prior to that of the donor ; and, 
 3. By the act of the donor revoking the gi ft. 
 
 It is not necessary that the donor should actually regain 
 possession of the property, nor is it necessary that the 
 donee know that the gift is revoked and the property re- 
 claimed. 
 
 If the donee resume possession after the property has 
 been reclaimed by the donor, without the latter 's consent, 
 or after his decease and the donee retains the property, 
 claiming it as a gift, he may, be compelled to surrender it 
 to the personal representatives of the donor.'' 
 
 But these gifts are not revoked by the donor's subse- 
 quent will for the reagpn that on his death the title of the 
 
 SI 2 Sch. Pers. Pi:op. pp. 152-167; Ward v. Turner, 2 Ves. Sen. 
 431; Irish v. Nutting, 47 Barb. 370; Hatch v. Atkinson, 56 Me. 
 324; Sessions v. Mosely, 4 Gush. 87; Farquharson v. Cave, 2 Coll. 
 356; Moore v. Darton, 4 De G. & Sm. 517. 
 
 32 Supra, § 84. 
 
 33 2 Sch. Pers. Prop. p. 176, et seq.; 2 Kent, Com. p. 444; 
 Weston V. Hight, 17 Me. 287; Merchant v. Merchant, 2 Bradf. 
 Surr. Rep. (N. Y.) 432; Bunn v. Markham, 7 Taunt 230; Wiggle 
 V. Wiggle, 6 Watts, 522; Parker v. Marston, 27 Me. 196. 
 
§ 90.] TITLE BY WILL OB TESTAMENT. 125 
 
 donee becomes absolute, and therefore irrevocable by the 
 will, which is inoperative during the donor's lifetime, the 
 only period during which he could exercise the power of 
 revocation.** 
 
 § 89. Not favored in the law. — ^In closing this topic it 
 should be noticed, that gifts causa mortis are not favored 
 in the law. They are regarded as a fruitful source of liti- 
 gation, and lack the formalities and safeguards surround- 
 ing wills, designed to prevent fraud and injustice. 
 
 It is therefore held that the evidence to sustain such 
 gifts must be of the most clear and satisfactory character.'" 
 
 III. Title hy Will or Testament. 
 
 § 90. Why assigned to this division. — Title by will or 
 testament is classed with transfers by act of the party, for 
 the reason that it is derived immediately from the testator 
 who, by virtue of his will, executed with due formality, 
 gives direction to his property after his death. The 
 title comes to his legatees, not in virtue of a common-law 
 rule, or by force of a statutory provision, as to distribu- 
 tees in case of intestacy, but by act of the testator in mak- 
 ing and publishing his last will and testament. True, the 
 beneficiaries do not take possession of, and acquire domin- 
 ion over, the property given them by .the will without the 
 action of an intervening party or court, as the donee takes 
 from the donor in case of a gift inter vivos, or the vendee 
 from the vendor in case of a sale but the title of legatees 
 
 34 Merchant v. Merchant, supra; Nicholas v. Adams, 2 Whart. 
 17; Jones v. Selby, Free. Ch. 300. 
 
 sBi Delmotte v. Taylor, 1 Redf. Surr. Rep. 417;- Duffield V. 
 EJlwees, 1 Bllgh (N. S.), 533; "Walsh v. Sexton, 55 Barb. 251, 256; 
 Tllllnghast v. Wheaton, 8 R. I. 536; Hatch v. Atkinson, 56 Me. 
 324; Brown v. Brown, 18 Conn. 410; Bedell v. Cfarll, 33 N. Y. 581. 
 
126 TITLE BY WILL OK TESTAMENT. [§ 90. 
 
 comes, nevertheless, in virtue and by force of the act of 
 the testator.'* 
 
 There are several kinds of legacies: g sneral. spjfiifie 
 d emonstrativ e, cumulative, vested, con tingent , ab solute , 
 mnditioTial, a nd residuary y but their consideration is 
 omitted here, as unnecessary for the purpose of explaining 
 the method of acquiring title now under discussion, and 
 not within the scope of this treatise. The subject of leg- 
 acies is examined post." 
 
 The student will observe, that when the will operates 
 upon personal property it is often called a t estament , and 
 when upon rpal astatp, a flovisp , but the more general and 
 popular denomination of the instrument is, last will and 
 testament. "D gvise" is the appropriate term for the testa- 
 mentary disposition of real estate, "legac y' for personal 
 property. But as "bequest" has no corresponding term to 
 designate the taker, like "devisee" and "legatee," it is not 
 always a convenient term for use.'* These terms are often 
 used inaccurately and indiscriminat«ly in testamentary 
 instruments, sometimes causing perplexity in the construc- 
 tion. As the leading rule of construction and adjudication 
 is, to ascertain and enforce the intention of the testator, 
 the terms employed will not be held to strict definitions, 
 and may be used indiscriminately without necessarily 
 thwarting the will of the testator.'* 
 
 3« 2 Black. CJom. pp. 512, 513; 1 Sch. Pers. Prop. p. 728, et seq.; 
 Underbill, Wills, Chap. XIX; 1 Rop. Leg. 842. 
 
 37 § 130. 
 
 s8 TJnderhill, Wills, p. 431; 1 Williams, Ex'rs, 6; 1 Jarm. Wills 
 (Eng. Ed. 1861), 702, n. k.; Dupper v. Mayo, 1 Saund. 276 f. n. 4. 
 
 3» 4 Kent, Com. p. 535 et seq.; O'Hara, Wills, p. 29, § 5 et seq.; 
 Wootton V. Redd, 12 Gratt. (Va.), 196; Lepage v. McNamara, 5 
 Iowa, 124; Byers v. Byers, 6 Dana (Ky.), 312; Pickering v. Lang- 
 don, 22 Me. 413; Creswell v. Lawton, 7 Gill & J. (Md.), 227; Pen- 
 royer v. Sheldon, 4 Blatchf. 316. 
 
§ 92.] TITLE BY WILL OE TESTAMENT. 127 
 
 § 91. Last will and testament defined. — The books con- 
 tain various definitions of a last will and testament, differ- 
 ing in phraseology and unimportant particulars, but all 
 substantially embodied in the brief definition of Judga 
 Eedfield — "the disposition of one's property, to take effect 
 after death."*" 
 
 It is well said in Turner v. Scott, *^ that "t he essence of 
 tlie de finition of a will is that it is a disp o sition of prope rty 
 to t ake effect after death . * ' 
 
 § 92. Testamentary capacity. — ^All persons, not under 
 7iatural or legal disability, are competent to execute a 
 valid wiU, the exceptional persons, and grounds of disabil- 
 ity, will now be briefly noticed. 
 
 1. Aliens. — ^While by the common law aliens are incom- 
 petent to devise real estate, alien friends — subjects of 
 governments at peace with us — may dispose of personal 
 property by will. But alien enemies — subjects of govern- 
 ments at war with us — are incapable of executing a valid 
 will of personal property, even, unless by special license 
 from the government to reside and transact business within 
 our territorial limits during the continuance of hostilities.*- 
 
 2. Infants — ^Under a certain age an infant is incapable 
 of disposing of his property, real or personal, by last will 
 and testament. The limitation of age is regulated by stat- 
 ute, both in England and in the American States, and is 
 not uniform; but quite generally the age of the testament- 
 ary capacity is earlier in females than in males, and for 
 the assumed reason that the former mature earlier than the 
 
 40 Underbill, Wills, pp. 7, 8; 2 Black. Com. p. 500; 4 Kent, Com. 
 p. 501; Dayt. Surr. p. 42; Swinb. pt. 1, § 2. 
 
 *i51 Penn. St. 126; and see Frederick's Appeal, 52 Id. 338. 
 
 *2 Underbill, Wills, pp. 82-88; 2 Kent. Com. pp. 62, 63; 1 Pars. 
 Cont. (7 Ed.), pp. 397, 398; Williams, Pers. Prop. p. 46. 
 
128 TITLE BY WILL OK TESTAMENT. [§: 92. 
 
 latter. In England until a comparatively recent period, in 
 conformity to the Roman civil law, males at fourteen, and 
 females at twelve,*' might dispose of their personal estate 
 by will. But the present English statute on the subject 
 provides, that "no will made by any person under the 
 age of twenty-one years shall be valid." ** 
 
 In New York, males at eighteen, and females at sixteen, 
 may bequeath their personal estate by will.*' 
 
 Each State has its own statutory provisions on the sub- 
 ject, and to these the student and practitioner will neces- 
 sarily refer. 
 
 3. Coverture. — Under the Roman civil law, the married 
 woman had the same testamentary capacity as a feme 
 sole, but in England coverture created a disability. To 
 this rule, however, there were several exceptions. In many 
 of the American States women were, until a compara- 
 tively recent period, and in some of the States still are, 
 subject to this disability. But it is fast disappearing be- 
 fore the tide of modem legislation setting in that direc- 
 tion." 
 
 4. Mental incapacity. — The exception covers a wide 
 field, embracing idiocy, imbecility, insanity in its various 
 species and multiplex nomenclature, and, generally, all 
 persons included in the comprehensive designation non 
 compos mentis. 
 
 It is generally held, that where the testator is free 
 from the presence and disturbing influence of adverse 
 parties, a lower degree of mental capacity will suffice to 
 make a valid will, than is requisite for the transaction of 
 
 *» 2 Black. Com. p. 497. 
 ** 1 Vic. c. 26. 
 
 «4 N. Y. R. S. (8 Ed.), P. 2547, § 21. 
 
 *«UnderhUl, Wills, pp. 182-184; Reeve, Dom. Rel. (4 Ed.), p. 
 187, n. 1; Browne, Dom. Rel. p. 53. 
 
§' 92.] TITLE BY WILL OB TESTAMENT. 129 
 
 other business where two minds, stimulated by opposite in- 
 terests, contend for advantage.*' 
 
 But the tAHtqtnr "TTingt^ at tViP timo nf I'Yffnti^fr t^° 
 
 will, h ave had sufficient capacity to comprehend perfectly 
 the c ondition of his property , ^ and his relations towards; 
 the persons who are or might be the objects of his bounty, 
 and the scope and bearing of the provisions of his will." ** 
 
 5. Undue influence, and fraud. — It is not only essential 
 that the testator should have had the requisite mental ca- 
 pacity at the time of executing his will, but he must hav e 
 b een free to use the same. In other words, the instrument 
 produced as his last will and testament, must have been 
 his will, and not that of another. The exercise of undue 
 influence, or practice of fraud, may so dominate or blind 
 the testator as to induce him to affix his executive hand to 
 an instrument that does not express his assenting will. 
 Such an instrument, it is scarcely necessary to state, is in- 
 valid. 
 
 To constitute undue influence having the effect stated, 
 it must be such as is exercised by coercion, imposition, or 
 fraud, and not that which arises from gratitude, affection, 
 or esteem.*' 
 
 " Converse v. Converse, 21 Vt. 168; Stevens v. Vancleve, 4 
 Wash. C. C. 262; Thompson v. Hyner, 65 Penn. 368; S. P. Stubbs 
 V. Houston, 33 Ala. 555; Howard v. Coke, 7 B. Mon. (Ky.), 655; 
 Kinne v. Kinne, 9 Conn. 102; and see Delafield v. Parish, 25 N. 
 T. 9. 
 
 *8 Delafield v. Parish, last supra, p. 29; Van Guysling v. Van 
 Kuren, 35 N. Y. 70; Tyler v. Gardiner, Id. 559; Hall v. Hall, 18 
 Ga. 40; Sutton v. Sutton, 5 Harr. (Del.). 459; Hathorn v. King, 
 8 Mass. 371; Domick v. Reichenback, 10 Serg. & R. 84; Home v. 
 Home, 9 Ired. (N. C.) L. 99. 
 
 *» Kinne v. Johnson, 60 Barb. 69; Van Hanswyck v. Wlese, 44 
 Id. 494; Clarke v. Davles, 1 Redf. Surr. Rep. 249; Gardiner v. 
 Gardiner, 34 N. Y. 155; Hartman v. Strickler, 82 Va. 225; Wad- 
 
 9 
 
130 REVOCATION OF WILL. [§ 94. 
 
 § 93. Written, and unwritten wills. — At common law , 
 a w ill of person al property was good without writing,"" but 
 now, both in England and the United States, nuncupative 
 wills are not valid, as a general rule at least, except in the 
 two cases of sailors and soldiers, while in actual service 
 and danger.'^ 
 
 A wiU may be written on any material, and in any lan- 
 guage ; in pencil instead of ink ; and the whole or a portion 
 may be in print, an engraving, or lithograph."^ 
 
 § 94. Revocation. — ^A will, being ambulatory during the 
 testator's life,"' may be revoked by him at his pleasure. 
 It is also revocable by implication or inference of law."* 
 
 1. The testator may revoke by a subsequent duly exe- 
 cuted will, or, pro tanto, by a codicil.'"' But the rules in 
 regard to testamentary capacity, and formalities of execu- 
 tion, apply to a subsequent will, and codicil, and must be 
 observed or the instrument will have no effect upon a for- 
 mer will."' 
 
 dlngton y. Buzby, 43 N. J. Eq. 154; Trost t. Dingier, 118 Pa. 
 St. 259; Storey's Will, 20 111. App. 183. 
 
 00 4 Kent, Com. p. 517; Swinb. Wills, 6; Prince v. Hazleton, 
 20 Johns. 502; Ex Parte Thompson, 4 Bradf. Surr. Rep. 154. 
 
 Bi Citations last supra; and Gwin's Estate, 1 Tuck. Surr. 44; 
 Hubbard v. Hubbard, 8 N. Y. 196; Black. Com. pp. 500, 501; 4 
 Kent, Com. p. 517. 
 
 BzUnderhill, Wills, pp. 1-28; In re Dyer, 1 Hagg. 219; 
 Schneider v. Norrls, 2 M. & S. 286; Temple v. Mead, 4 Vt. 536; 
 Henshaw v. Foster, 9 Pick. 312; Kell v.' Charmer, 23 Beav. 195. 
 
 63 Supra § 85. 
 
 0* 4 Kent, Com. p. 521. 
 
 BBtrnderhill, Wills, pp. 302-390, Christmas v. Whingates, 3 
 Swab. & Tr. 81; White t. Casten, 1 Jones, L. N. C. 197; Nelson 
 T. McGiffert, 3 Barb. Ch. 158; Conovor v. Hoffman, 15 Abb. Pr. 
 R. 100; Van Wert v. Benedict, 1 Bradf. Surr. 114. 
 
 56 Citations last supra; and Boylan v. Meeker, 28 N. J. L. 274; 
 Wikoff's Appeal, 15 Pa. St. 281; Nelson t. Pub. Adm'r, 2 
 
§ 94.] REVOCATION OF WILL. 131 
 
 2. The testator may revoke his vsdll by burning, tearing, 
 canceling, obliterating, or otherwise destroying the instru- 
 ment itself, with the intent of revoking the same.'^ But 
 such a revocation requires testamentary capacity, the same 
 as required to execute a will. There must be an intelligent 
 animus revocandi, and freedom of volition and action."* 
 
 3. Marriage and the birth of issue. The rule generally 
 obtains that the marriage of a feme sole works a revocation 
 of her will previously executed. The marriage of a man 
 does not, of itself alone, have the same effect, but marriage 
 and the birth of issue does so operate, unless where the 
 father prior to making his will, or cotemporaneously there- 
 with, makes express provision, by a separate instrument, 
 for such future issue."* 
 
 4. Revocation by the birth of children subsequently to 
 the execution of a wiU is quite generally regulated by stat- 
 ute in this country. The statutory provisions of the dif- 
 ferent states on the subject, are not in all particulars alike, 
 but the prevailing rule is, that the birth of a child revokes 
 a wiU previously made, so far, at least, as to let in the child 
 to a share in the property, unless some provision is made 
 for it, either in the will or otherwise.*" 
 
 Bradf. Surr. 210; Delafield v. Parish, 25 N. Y. 9; Smith v. Mc- 
 Chesney, 15 N. J. Ch. 359. 
 
 67 Burtenshaw v. Gilbert, Cowp. 51; Smith v. Clark, 34 Barb. 
 140; Smith v. Dolby, 4 Harr. (Del.), 350; Summer v. Summer, 7 
 Harr. & J. (Md.), 388. 
 
 68 Idley V. Bowen, 11 "Wend. 225; Matter of Porman, 54 Barb. 
 274; Smith v. Waite, 4 Id. 28; Laughton v. Atkins, 1 Pick. 435. 
 
 Bs'underhill, Wills, pp. 328-330; Hodsden v. Lloyd, 2 Br. Cr. 
 Cas. 534; Cotter t. Layer, 2 P. Wins. 623, 624; Kenebel v. Scraf- 
 ton, 2 Bast, 530; Bush v. Wilklns, 4 Johns. Ch. 506; Warner v. 
 Beach, 4 Gray, 162; Morton v. Onion, 45 Vt. 145. 
 
 80 4 Kent, Com. p. 526; Walker v. Hall, 34 Pa. St. 483; Ash v. 
 Ash, 9 Ohio St. 383; Fallow v. Chidester, 46 la. 588; Deupree v. 
 Deaupree, 45 Ga. 415; Bloomer v. Bloomer, 2 Bradf. Surr. 339. 
 
132 SALES. [§ 96. 
 
 § 95. When the will takes effect. — ^A will of personal 
 property does not, as a rule, take effect, nor are there any 
 rights acquired under it, u ntil the death of the testator. 
 In legal phrase, a wiU speaks from the death of a testator.'* 
 
 The subject of wills is regulated by statute in the several 
 states of the Union, presenting considerable diversity of 
 provisions, so that general rules, only, could here be given, 
 and only a few of the multitude of cases on the subject 
 have been cited. 
 
 rV. Sales. 
 
 § 96. Sale defined. — ^A bargain and sale of goods, 
 termed in brief "a sale," is accurately defined to be "a 
 trans fer of the absolute or general property in a. tTiinior fnr 
 a price in monev ." °^ Chancellor Kent thus defines a sale: 
 " A sale is a contract for the transfer of property from ori s 
 p erson to another, for a valuable consideratio n. ' ' " This 
 definition differs from the above by embracing cases of 
 barter and exchange, where the consideration is other than 
 money, and which do not, therefore, constitute a sfi.lpi a. n- 
 cording to the strict common law definition, w Tiinb rpqm' rps 
 a consideration in money, paid or promised. ° ^ But it has 
 
 eijarm. Wills (5 Am. Ed.), 600; Banks v. Thornton, 11 Hare, 
 176; Delasherois v. Delasherois, 11 H. L. Cas. 62; WagstafE v. 
 WagstafC, Law R. Bq. 229; Deegan v. Livingston, 15 Mo. 230; 
 Leigh V. Savidge, 14 N. J. Eg. 124; Gourley v. Thompson, 2 
 Sneed (Tenn.), 387; Canfleld v. Bostwick, 21 Conn. 550; George 
 V. Green, 13 N. H. 521; Van Vechten v. Van Vechten, 8 Paige, 
 104. 
 
 82Benj. Sales, p. 1; 2 Sch. Pers. Prop. 186; 2 Black. Com. p. 
 446; Story, Sales, § 1; Martin v. Adams, 104 Mass. 262; Wittow- 
 ski v. Wasson, 71 N. C. 451; Smith v. Weaver, 90 111. 392; Crev. 
 eling V. Wood, 95 Pa. St. 152, 158. 
 
 «s 2 Kent, Com. p. 468. 
 
 8<Benj. Sales, p. 1, n. 1; 1 Pars. Cont. (7 Ed.), p. 521, n. (g); 
 Mitchell V. Gile, 12 N. H. 390; Vail v. Strong, 10 Vt. 457. 
 
§' 96.] SALES. 133 
 
 been held that if property be taken at a fixed money price, 
 the transfer amounts to a sale, whether the price be paid 
 in cash or in goods.'" The distinction between a sale and 
 barter or exchange is frequently ignored in the books, and, 
 indeed, it is not of much practical importance, as the prin- 
 cipal elements of the contract, and the rights and remedies 
 of the parties, are substantially the same in both cases.*' 
 
 Mr. Tiedeman, in his excellent treatise on Sales, formu- 
 lates for his treatment of the subject the following defini- 
 tion: "In the sense in which the term is t® be emplsyed 
 in this book, a sale may be defined t^ he a. contract or agree- 
 ment for the transfer of the absolute property in person- 
 alt y from one person to another for a price in money . ' ' " 
 This definition differs from the common one by embracing 
 in effect executory sales. The distinction between executed, 
 and executory, contracts of sale must be observed in the 
 study of this subject. In the former, there is a present 
 transfer of the absolute property in the subject of the sale ; 
 in the latter, an agreement o f sale and future transfer ; and 
 in such case, the subsequent transfer of the thing converts 
 an executory, into an executed, contract. It will be ob- 
 
 serve d that , while o ne cannot se ll, he may ma ke a valid 
 agreement to sell, a thi ng to which h e has no^present title.'^ 
 
 8BPicard T. McConnlck, 11 Mich. 68; S. P. Keller v. Tutt, 31 
 Mo. 301. 
 
 ssDowllng V. McKenney, 124 Mass. 480; Redfield v. Tegg, 38 
 N. T. 212; Ckymmon wealth v. Clark, 14 Gray, 367; Ho-ward v. 
 Harris, 8 Allen, 297; Mason v. Lothrop, 7 Gray, 355. 
 
 sTTlede. Sales, § 1. 
 
 ssTiede. Sales, § 1; Benj. Sales, pp. 1, 2; Am. n. pp. 3, 4; 
 Joyce V. Murphy, 8 N. Y. 291; Blaisdell v. Souther, 6 Gray, 152; 
 Elliott v. Stoddard. 98 Mass. 145; Dittmar v. Norman, 118 Masa 
 3X9; Lester v. East, 49 Ind. 588; Powder Co. v.. Burkhart, 97 U. 
 S. 110. 
 
134 SALES. [§ 99. 
 
 § 97. Elements of a valid sale. — ^A concurrence of the 
 following elements is essential to a valid sale, viz. : 1. Pur- 
 ties co mpetent jia-^ontract ; 2. MutuaLa^ent ; 3. A,.^iag, 
 the absolute pro perty in which is the subjec t of the tr ans- 
 f er ; and 4. A pricejn m oney paid or pr omised. 
 
 These elements will now be treated briefly in the order 
 named. 
 
 § 98. Parties competent to contract. — ^For a full discus- 
 sion of the subject of competency, reference must be had 
 to works embracing the subject of contracts in general, and 
 contracts of sale. It must sufiSce for present purposes to 
 state, that to constitute a valid sale, the parties must have 
 both natural and legal capacity to contr act. "By natural 
 capacity is meant a competent measure of mental power. 
 Legal capacity includes natural, and also the permission of 
 the law to exercise it." " There may be a want of either, 
 or both, which creates incompetency to contract. For ex- 
 ample, infants, persons non compos mentis, drunkards, 
 married women, outlaws and persons attainted, aliens, 
 spendthrifts, and seamen may be wholly or partially in- 
 competent. 
 
 § 99. Mutual assent. — To constitute a valid contract of 
 sale, there must be not only competent parties, but the mu- 
 tual assent of these parties to aU the terms and conditions 
 of the same. The minds of the parties must meet, and as- 
 sent to the same thing, in the same sense, and at the same 
 instant of time.'" 
 
 «»Met Cont. (Heard's Ed.), p. 41. 
 
 70 Bishop, Cont. (2nd Enl. Ed.) § 313; 1 Pars. Cont. (7 Ed.), p. 
 475; Mete. Cont. (Heard's Ed.), p. 16; Tiede. Sales, § 33; Benj. 
 Sales, p. 43; Am. n. pp. 70-75; Dickinson v. Dodds, 2 Ch. D. 463, 
 472; Cook v. Oxley, 3 T. R. 653; Jordan v. Morton, 4 M. & W. 
 
§ 99.J SALES. 135 
 
 If an offer be made by one party in writing, orally, per- 
 sonally, by agent, by mail or telegraph, and received by 
 the other party, its unconditional acceptance by the latter, 
 communicated to the first party, completes a contract/^ 
 If there be a conditional acceptance, or counter proposition, 
 communicated to the first party, his assent thereto, duly 
 communicated to the second party, is requisite to complete 
 a contract.'''' It is not essential to the completion of the 
 contract that the assent should be express. It may be im- 
 plied from language, or conduct, such as appropriating 
 the benefits of the proposed contract, or otherwise treating 
 it as complete, or even inferred from silence.''* "Where the 
 offer is made by mail or telegraph, the contract is complete 
 when the letter of acceptance is mailed, or the telegram 
 announcing acceptance is deposited with the telegraph com- 
 pany for transmission, although such letter or telegram 
 should never reach the offerer.''* 
 
 155; AUis v. Read, 45 N. Y. 142, 149; Utley v. Donaldson, 94 U. 
 S. 29, 47. 
 
 " Tiede. Sales, §§ 38, 39; Bishop, Cont. (2nd Enl. Ed.), §§ 321- 
 324. 
 
 72 Tiede. Sales, § 37; 1 Pars. Cont. p. 477; Moss v. Sweet, 16 
 Q. B. 493; Derrick v. Monette, 73 Ala. 75; Baker v. Holt, 56 Wis. 
 100; Aslicroft v. Butterworth, 136 Mass. 511; Stagg v. Compton, 
 81 Ind. 171. 
 
 Ts Tiede. Sales, § 38; Benj. Sales, p. 42; Am. n. pp. 70-75; 
 Joyce V. Swaee, 17 C. B. (N. S.), 84, 101; Gowing v. Knowles, 118 
 Mass. 232; Street v. Chapman, 29 Ind. 142; Payne v. Cave, 3 T. 
 R. 148; Hoadley v. McLaine, 10 Bing. 482, 487; Brogden v. Met- 
 rop. Railway Co., 2 App. Cas. 666; Taylor v. Jones, L. R. C. P. D. 
 87, 90; Crook v. Cowan, 64 N. C. 743; Tucker v. "Wioods, 12 Johns. 
 190. 
 
 7*Mactier v. Frith, 6 Wend. 103; Adams v. Lindsell, B. & Aid. 
 681; Taylor v. Insurance Co. 9 How. 390; Vassar v. Camp, 11 N. 
 Y. 441; Abbott v. Shepard, 48 N. H. 14; Howard v. Daly, 61 N. Y. 
 362; Stockham v. Stockham, 32 Md. 196; Bryant v. Booze, 55 Ga. 
 438; Trevor v. Wood, 36 N. Y. 307; Durkee v. Central Railway 
 
136 SITBJECT OP SALE. [§ 100. 
 
 A telephone message is a personal communication, and 
 the general rules of the law of contracts apply to agree- 
 ments made by telephone.'"' 
 
 If, by reason of a mistake of fact in regard to the sub- 
 ject matter, or terms of the contract, the minds of the par- 
 ties do not meet, there will be no mutual assent to the same 
 contract, and, therefore, no sale or contract binding upon 
 either party. And the same rule applies ^here one of the 
 parties mistakes the other for a third person ; in which case 
 he makes no binding contract.'" 
 
 An offer may be withdrawn at any time bef ore acce pt- 
 ance, unless there be an agreement for a valuable consid- 
 eration to hold it open a stipulated time for acceptance. 
 In case of such an agreement, should the party making 
 the offer withdraw the same before the expiration of the 
 stipulated time, he would become liable to the other party 
 for all damages resulting from his breach of contract to 
 hold open, but no liability will attach to an option entered 
 into without consideration.'' 
 
 § 100. The subject of the sale. — One of the elements of 
 a valid sale, is a thing, the absolute or general property in 
 which is the subject of the transfer.'" 
 
 The distinctions between absolute and qualified property 
 
 Co., 29 Vt. 127; Thome v. Barwlck, 16 Up. Can. C. P. 369; Mar- 
 shall V. Jamison, 42 Up. Can. Q. B. 120; Perry t. Mt Hope Iron 
 Co., 15 R. I. 66. 
 
 TO See TIede. Sales, § 39. 
 
 TSTiede. Sales, § 35; Bishop, Cont (2nd Enl. Ed.), § 695, et 
 seq.; Ben]. Sales, p. 57, et seq. 
 
 ii Tlede. Sales, §§ 40, 41; Benj. Sales, p. 46, etseq.; Bishop, Cont 
 (2nd Enl. Ed.), i§ 78, 321; Chic. & Great West R. Co. v. Dane, 
 43 N. Y. 240. 
 
 '8 Supra, §§ 96, 97. 
 
§ 100.] SUBJECT OF SALE. 137 
 
 ■will be recalled.'" A thing may have, in a certain sense, 
 two owners, one of whom has the general, and the other the 
 special, property in it. For example, when goods are de- 
 livered in pawn or pledge, the general property remains 
 in the pawnor, and a special property vests in the pawnee. 
 Manifestly, a -transfer of the special property is not a sale 
 of the thing. 
 
 At law, there cannot be a sale of a thing that has no ex- 
 istence, acitual ©r patential. A nominal sale of property 
 which is not in existence at the time of making, or the time 
 of executing, the contract, conveys ns title.*" But, while 
 there can be no executed sale of a thing not yet in exist- 
 ence, or the title to which has not been acquired by the ven- 
 dor, thei-e may be a valid executory agreement for the sale 
 of such a thing.'^ And, if the vendor afterwards acquires 
 title, and the vendee obtains lawful possession before the 
 rights of third parties have intervened, the executory con- 
 tract is converted into an executed contract of sale, and ti- 
 tle vests in the vendee.*' 
 
 There may, however, be a valid sale of a thing in poten- 
 tial existence, before maturity of actual existence, as, for 
 example, a growing crop, the wool from a flock of sheep, 
 or the unborn young of animals.*' 
 
 T9 Supra, § 4. 
 
 BoTiede. Sales, § 50; Ben]. Sales, p. 76; Am. n. pp. 80, 81; 
 Strickland v. Turner, 7 Ex. 208; Ifastle v. Conturier, 9 Ex. 102, 
 and 5 H. L. C. 673; Lunn v. Thornton, 1 C. B. 379; Young v. 
 Bruces, B Litt. 324; Harris v. Nicholas, 5 Munf. 483; Carpenter 
 V. Stevens, 12 Wend. 589. 
 
 siTiede. Sales, § 51; Benj. Sales, pp. 78, 79; Am. n. pp. 80-82; 
 Gittings V. Nelson, 86 111. 591; Chesley v. Joslyn, 7 Gray, 489; 
 Head v. Goodwin, 37 Me. 182; Cressy v. Sabre, 17 Hun, 120, Gard- 
 ner V. McEJwen, 19 N. T. 123; Stanton v. Small, 3 Sandf. 230. 
 
 82 See citations last supra. 
 
 BsTiede. Sales, § 52; Benj. Sales, Am. n. p. 82; Hall v. Hall, 
 
138 STATUTE OP FEAUDS. [§' 102. 
 
 While at law the rules are as now stated, in equity, if the 
 subject of the sale ca n be identified by the description in 
 thg_£Qntract, the sale is valid even though the thing be not 
 even in potential existence. As soon as the thing comes 
 into existence, or into the possession of the vendee, the title 
 passes to him.'* 
 
 § 101. A price in money, paid or promised. — ^We have 
 seen that to distinguish a sale from barter or exchange, 
 there must be a price in money, paid or promised.'" The 
 price may be fixed by the agreement of the parties, or es- 
 tablished by implication of law. "When property is sold 
 without fixing the price by stipulation, the law raises a 
 promise by implication on the part of the purchaser, that 
 he will pay for the same what it is reasonably worth; and 
 this has the same binding force as an express agreement of 
 the parties." 
 
 § 102, The Statute of Frauds. — To the common law 
 requisites of a valid contract of sale, the Statute of Frauds 
 
 48 Conn. 250; McCarty v. Blevlns, 5 Yerg. 195; Fonville v. Casey, 
 1 Murphy (N. C), 387; Sawyer v. Gerrish, 70 Me. 254; Gran- 
 than V. Hawley, Hob. 132; Robinson v. McDonnel, 5 M. & S. 228; 
 Rawlings v. Hunt, 90 N. C. 270; Conderman v. Smith, 41 Barb. 
 404. 
 
 8<Tiede. Sales, § 53; Benj. Sales, Am. n. p. 81; Holroyd v. 
 Marshall, 10 H. L. C. 191; Reeve v. Whitmore, 4 De G. J. & S. 1; 
 Mitchell V. Wlnslow, 2 Story, 630; Pennock v. Coe, 23 How. 117; 
 McCaffrey v. Woodin, 65 N. Y. 459; Hunter v. Bosworth, 43 Wis. 
 583; Phillips v. Winslow, 18 B. Monr. 431; Smithhurst v. Ed- 
 munds, 14 N. J. Eq. 408. 
 
 sBSwpra, § 96. 
 
 8«Tiede. Sales, § 47; Benj. Sales, pp. 83, 85; Am. n. pp. 85, 86; 
 Hoadly v. McLaine, 10 Bing. 482; Taft v. Travis, 136 Mass. 95; 
 James v. Muir, 33 Mich. 224; McEwen v. Moray, 60 111. 32; Fenton 
 V. Braden, 2 Cranch C. C. 550; Hountz v. Kirkpatrick, 72 Pa. St. 
 376. 
 
§ 102.] STATUTE OF FRAUDS. 139 
 
 adds other conditions to certain specified contracts. The 
 English Statute of Frauds was enacted in 1676, under the 
 title, — "An Act for Prevention of Frauds and Perjur- 
 ies;" *^ and has been adopted, in substance, in most, if not 
 all, of the American states. The fourth and seventeenth 
 sections of this statute affect contracts of sale; the former 
 applying to "lands, tenements, and hereditaments, or any 
 interest in or concerning them," and the latter to the sale 
 of personal property, or, in the language of the English 
 statute, "any goods, wares, or merchandises, for the price 
 of ten pounds sterling or upwards." 
 
 It is the seventeenth section that we now have to con- 
 sider. It provides that contracts of this class "shall not 
 be allowed to be good" except upon one of three conditions, 
 namely: 1. The buyer shaU 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 bar- 
 gain be made and signed by the parties to be charged by 
 such contract or their agents thereunto lawfully authorized. 
 These contracts and conditions will now be considered: 
 1. What contracts embraced. — It may now be regarded 
 as settled that this section of the statute embraces execu- 
 tory, as well as executed, contracts of sale. This question 
 gave rise to considerable discussion, and some conflict of 
 opinion, in the English courts, until it was put at rest by 
 a statute known as "Lord Tenderden's Act," ** which pro- 
 vides in effect that the seventeenth section of the Statute 
 of Frauds shall apply to executory contracts of sale. The 
 courts in this country have quite uniformly held that execu- 
 
 87 29 Car. 2. c. 3. 
 
 88 Geo. IV, c. 14, sec. 7. 
 
140 STATUTE OF FEAUDS. [§' 102. 
 
 t Sry contracts fc th° f"^^^^" ^nHy^iy ^f frrfni^s avp am- 
 
 braced in this section." 
 
 2. Contracts not embraced. — ^It may be regarded as es- 
 tablished that this section of the statutes does not apply to 
 contr acts for work and labor, and materials found. But 
 the dividing line between such a contract and a contract of 
 sale where the vendor's labor and materials enter into and 
 become a constituent element in the subject of the sale, is 
 not always easily drawn. Considerable discussion has 
 arisen, and some difference of judicial opinion has been 
 developed, in an effort to formulate a rule for determining 
 on which side of the line a given case belongs, but no uni- 
 versally satisfactory test has yet been furnished. There 
 was a lack of unanimity in the English authorities down to 
 the case of Lee v. Griffin,'" and in this country the eases 
 stiU fail to harmonize. Some follow the case of Lee v. 
 Griffin, which holds, in effect, that a contract for the f u- 
 ture deliv ery of a thing which is properly the sub;iect of a 
 sale^ is a contract of sale, and not a contract for work and 
 labor and materials furnished, notwithstanding the skill of 
 the vendor is to be exercised, and materials are furnished 
 by him, in carrying out the contract.*^ Other cases hold, 
 that if the vendor's skil Lis bargained for, it is a contrac t 
 f or work and labor^ not a contract for sale, and, therefore, 
 not within the Statute of Frauds."* The doctrine of an- 
 
 «»Tiede. Sales, § 56; Benj. Sales, pp. 88, 89; Am. n. pp. 99, 
 100; Newman v. Morris, 4 Har. & McH. 221; Carman v. Smick, 15 
 N. J. L. 252; Edwards v. Grand Trunk R. R. Co., 48 Me. 379; Ben- 
 nett V. Hull, 10 Johns 364; Ide v. Stanton, 15 Vt. 685; Atwater v. 
 Hough, 29 Conn. 513; Waterman v. Meigs, 4 Gush 497; Cason ■». 
 Cheely, 6 Ga. 554; Jackson v. Covert, 5 Wend. 139. 
 
 M 30 L. J. Q. B. 252; 1 B. & S. 272. 
 
 •I Harden v. McClure, Chandl. 271; Brown v. Sanborn, 21 
 Minn. 402; Prescott v. Locke, 51 N. H. 94. 
 
 82 Downs v. Ross, 23 Wend. 270; Passaic Mfg. Co. v. Hoffman, 
 
§ 102.] STATUTE OP FRAUDS. 141 
 
 other line of cases, briefly stated, is, that a contract for the 
 special manufacture of an article which the vendor does not 
 keep in stock, is a contract for work and labor and ma- 
 terials furnished, and not a sale within the Statute of 
 Frauds." But where the article ordered is "what the ven- 
 dor ordinarily sells, and it has not been specially prepared 
 for the vendee," it is a contract of sale, falling within the 
 Statute of Frauds." 
 
 3. What are "goods, wares and merchandise." — The 
 English courts restrict this clause of the statute to cor- 
 poreal movable property ; ** but the American authorities 
 allow it a broader scope, including incorporeal property, 
 such as shares of stock, choses in action, and the like." 
 
 3 Daly, 495; Miller v. Fltzglbbons, 9 Daly, 505; Joy v. Schloss, 12 
 Id. 533; Seymour v. Davis, 2 Sandf. 239; Smith v. N. Y. C. R. R. 
 Co. 4 Keyes, 180; Bates v. Coster, 1 Hun, 400; Kellogg v. Wither- 
 head, 4 Hun, 273; Cook v. Millard, 65 N. Y. 352; Rentch t. Long, 
 27 Md. 188. 
 
 93 Mixer v. Howarth, 21 Pick. 205; Goddard v. Binney, 115 
 Mass. 450; Phipps v. McFarlane, 3 Minn. 109; Meincke v. Folk, 
 55 Wis. 427; Finney v. Apgar, 31 N. J. L. 271; Hight v. Ripley, 
 19 Me. 137; Allen v. Jarvis, 20 Conn. 38; Bennett v. Nye, 4 
 Greene (la.), 410; Suber v. Pulling, 1 S. C. 273; Gadsen v. Lance, 
 1 McMul. Eq. 87; O'Neill v. N. Y. etc., Co., 3 Nev. 141. 
 
 »iMay V. "Ward, 134 Mass. 127; Clark v. Nichols, 107 Id. 547; 
 Gardner v. Joy, 9 Met. 177; Lamb v. Crafts, 12 Id. 353; Ed- 
 wards V. Grand Trunk Railway, 48 Me. 379; 54 Me. 105; Ellison 
 V. Brigham, 38 Vt. 64; Atwater v. Hough, 29 Conn. 509; Sawyer 
 V. Ware, 36 Ala. 675. 
 
 wTiede. Sales, § 59; Benj. Sales, p. 105, et seq. 
 
 98Benj. Sales, Am. n. pp. 118-120; Tisdale v. Harris, 20 Pick. 
 9; Boardman v. Cutler, 128 Mass. 388; Pray v. Mitchell, 60 Me. 
 430; Fine v. Hornsby, 2 Mo. App. 61; North v. Forrest, 15 Conn. 
 400; Calvin v. Williams, 3 H. & J. 38; Riggs v. Magruder, 2 
 Cranch, C. C. 143; Baldwin v. Williams, 3 Met. 307; Hudson v. 
 ¥7eir, 29 Ala. 294; Walker v. Suple, 54 Ga. 178. The statute of 
 New York expressly includes "things in action," Part II, Title 
 2, C. 7, § 3. And see Archer v. Zeb, 5 Hill, 200; Peabody v. Spey- 
 ers, 56 N. Y. 230. 
 
142 STATUTE OF FRAUDS. [§' 102. 
 
 When the subject of the sale is part of the soil hy an- 
 nexation, which becomes personalty on severance, care is 
 requisite in determining whether the case falls within the 
 seventeenth section of the statute relating to sales of per- 
 sonal property, or the fourth, which applies to real estate. 
 All contracts within the latter section must be evidenced 
 by a writing, while in the former a writing is not requisite 
 where the buyer accepts part of the goods sold, and actu- 
 ally receives the same, or gives something to bind the bar- 
 gain, or in part payment. As a rule, therefore, if the eon- 
 
 tract contemplates the transfer of title before severance, it 
 fal ls within the fourth section, but , if the transfer is no t 
 to taVp pln/^A ntitn a ftfir severance, it i a within fhp. srvptI- 
 fe enth section .'^ Severance may be actual or constructive. 
 A constructive severance wiU not operate to the prejudice 
 of subsequent purchasers for value of the realty without 
 notice."* 
 
 It should be noticed, however, that in regard to contracts 
 calling for a transfer of title before severance, the authori- 
 ties distinguish between the natural products of the soil, 
 fructus naturales, and annual crops, or the fruits of culti- 
 vation, fructus industriales. If the subject of sale be the 
 former, it is quite generally held to fall within the fourth 
 section." But where the natural product of the soil is to 
 
 07 Smith V. Surman, 9 B. & C. 561; Falmouth v. Thomas, 1 C. 
 & M. 105; Marshall v. Green, 1 C. P. D. 35; Parker v. Staniland, 
 11 East, 362; Sainsbury v. Matthews, 4 M. & W. 434. 
 
 »8 Lewis V. Rosier, 16 W. Va. 323; Lacustrine Fert. Co. v. 
 Lake Guano Co., 82 N. Y. 476. 
 
 8» Crosby v. Wadsworth, 6 East, 602; Waddlngton v. Bristow, 
 2 B. & P. 452; Carrington v. Roots, 2 M. & W. 248; Green v 
 Armstrong, 1 Denio, 550; Kingsley v. Holbrook, 45 N. H. 313 
 Olmstead v. Niles, 7 N. H. 522; Pattison's Appeal, 61 Pa. St. 294 
 Huff V. McCauley, 53 Pa. St. 206; Daniels v. Bailey, 43 Wis. 566 
 LlUie v. Dunbar, 62 Wis. 198; White v. Foster, 102 Mass. 375 
 
§ 102.] STATUTE OF FRAUDS. 143 
 
 be severed immediately, or witliin a reasonable time, and 
 no further benefit is expected to accrue to the purchaser 
 from its connection with the soil, the contract is governed 
 by the seventeenth section.^ It is a well established Amerir 
 can doctrine that a contract for the sale of annual crops, 
 fructus industriales, is governed by the seventeenth section,^ 
 but some of the English authorities hold, that where the 
 contract calls for the present transfer of title, it is not a 
 contract for the sale of goods, wares and merchandise, and 
 not, therefore, within the seventeenth section.' 
 
 The American courts hold, also, that a contract for the 
 sale of fixtures is within the seventeenth section of the 
 statute.* 
 
 4. What contracts reach the statutory limit of £10. — 
 "Where the sale consists of only one article, arid its value 
 is known, or agreed upon by the parties, no difficulty on 
 
 Howe V. Batchelder, 49 N. H. 204; Buck v. Rockwell, 27 Vt 157; 
 Slocum V. Seymour, 36 N. J. L. 138; "Warren v. Leland, 2 Barb. 
 613; Vorebeck v. Rowe, 5 Barb. 302; Harrell v. Miller, 35 Miss. 
 700. 
 
 1 Marshall v. Green, 1 C. P. D. 35; McClintock's Appeal, 71 Pa. 
 St. 365; Whitmarsh v. Walker, 1 Met. 313; Claflln v. Carpenter, 4 
 Met. 580; Nettleton v. Sikes, 8 Met. 34; Smith v. Bryan, 5 Md. 
 141; Boyce v. Washburn, 4 Hun, 792; Brown v. Stanclift, 80 N. 
 Y. 627; Erskine v. Plummer, 7 Greenl. 447; Banton v. Shorey, 
 77 Me. 48; Purney v. Piercy, 40 Md. 22. 
 
 2 Marshall v. Ferguson, 23 Cal. 65; Bull v. Griswold, 19 111. 
 631; Brlcker v. Hughes, 4 Ind. 146; Dunne v. Ferguson, 1 Hayes, 
 540; Brittain v. McKay, 1 Ired. 265; Moreland v. Myall, 14 Bush, 
 470; Evans v. Roberts, 5 B. & C. 836; Jones v. Flint, 10 A, ft E. 
 755; Rodwell v. Phillips, 9 M. & W. 502. 
 
 3 Hallen v. Runder, 1 C. M. & R. 267; Mayfleld v. Wadsley, 3 B. 
 & C. 357; Parker v. Staniland, 11 East, 365. 
 
 *Ross' Appeal, 9 Pa. St 491; Powell v. McAshan, 28 Mo. 70; 
 Bostwick T. Leach, 3 Day, 476; Strong v. Doyle, 110 Mass. 92; 
 Shaw V. Corbrey, 13 Allen, 462; Howard v. Fessenden, 14 Allen, 
 124; Morris v. French, 106 Mass. 326; Central Branch Bank t. 
 
144 STATUTE OP FRAUDS. [§' 102. 
 
 this point is presented; but where the sale embraces sev- 
 eral articles, each of which is of less value than ten pounds, 
 the question may arise whether it reaches the statutory 
 limit. A satisfactory test may be found in answer to the 
 question: Was the transaction a unit, one entire contract, 
 although composed of different parts? If yea, and the 
 aggregate value of the articles equals or exceeds ten 
 pounds, it is within the statute ; otherwise not." If, at the 
 time of the bargain, it be uncertain whether the subject of 
 the sale wiU reach the statutory Hmit, the sale will be held 
 to come within the operation of the statute if it turn out 
 that the value actually equals or exceeds ten pounds ster- 
 ling.' 
 
 A contract may include a sale of goods, and also other 
 matters not within the statute, as, for example, the rendi- 
 -tion of service. In such case, if the value of the goods be 
 ten pounds or upwards, the statute will apply, at least to 
 the goods. But whether an action can be maintained for 
 the value of the services, or other items included in the con- 
 tract besides the goods, is a question upon which the au- 
 thorities do not agree. One English case, at least, holds 
 the affirmative ; ^ while some American cases hold the nega- 
 tive, unless there was a separate and independent consid- 
 eration for the services, or other thing included.* 
 
 Fritz, 20 Kan. 430; Long v. "White, 42 Ohio St. 59; Rogers v. Cox, 
 96 Ind. 157; Foster v. Mabe, 4 Ala. 402; Scoggin v. Slater, 22 Ala. 
 687; Dame v. Dame, 38 N. H. 429. 
 
 B Baldey v. Parker, 2 B. & C. 37; Oilman v. Hill, 36 N. H. '318; 
 Gault V. Brown, 48 N. H. 183; Brown v. Hall, 5 Lans. 1.77; Al- 
 lard v. Greasert, 61 N. Y. 1; Jenness v. Wendell, 51 N. H. 63, 67. 
 
 6 Bowman v. Coun, 8 Ind. 58; Carpenter v. Galloway, 73 Ind. 
 418; Gault v. Brown, 48 N. H. 182;- Brown v. Sanborn, 21 Minn. 
 402; Hodges v. Richmond Mfg. Co., 9 R. I. 482; Watts v. Friend, 
 20 B. & C. 446; Cox v. Bailey, 6 M. & G. 193. 
 
 iHarman v. Reeve, 25 L. J. C; P. 257; 18 C. B. 586. 
 
 sMcMullen v. Riley, 6 Gray, 506; Irvine v. Stone, 6 Cush 508. 
 
§■ 102.] STATUTE OP FRAUDS. 145 
 
 5. Acceptance and receipt. — To satisfy this alternative 
 condition of the statute, two things must concur ; the buyer 
 must accept and actually receive part of the goods. There 
 may be an actual receipt without an acceptance; and so, 
 also, there may be an acceptance without a receipt. A re- 
 ceipt may be, and often is, evidence of acceptance, but it 
 is not conclusive, or the same thing. The purchaser may 
 receive the goods for the purpose of ^amination, that he 
 may intelligently exercise his option of acceptance or rejec- 
 tion.* So, also, a receipt of goods by a common carrier 
 consigned to the purchaser, although in general a delivery 
 to the latter, is not an acceptance by him, the carrier not 
 being his agent authorized to accept the goods.^" 
 
 A compliance with this condition of the statute requires 
 a delivery of the goods, or some portion of them, by the ven- 
 dor with the intention of vesting the right of possession in 
 the vendee, and an actual acceptance by the latter with the 
 intention of taking possession as owner. ^^ Acceptance and 
 receipt by a duly authorized agent is, in law, an acceptance 
 and receipt by the principal, and hence a compliance with 
 
 »SmitIi v. Hudson, 5 B. & S. 43X; 34 L. J. Q. B. 145; Chintz 
 V. Surey, 5 Esp. 267; Philips v. Bistolli, 2 B. & C. 511; Cusac v. 
 Robinson, 1 B. & S. 299; 30 L. J. Q. B. 261; Saunders v. Topp, 4 
 Ex. 390; Stone v. Browning, 51 N. T., 211; 68 Id. 598; Brewster v. 
 Taylor, 63 N. Y. 587; Remick v. Sanford, 120 Mass. 309; Bacon v. 
 Eccles, 43 Wis. 227; Gihbs v. Benjamin, 45 Vt 124; Hewes v. 
 Jordan, 39 Md. 472; Caulkins v. Hellman, 47 N. Y. 449. 
 
 10 Rogers V. Phillips, 40 N. Y. 519; Cross v. (yDonnell, 44 N. 
 Y. 661; Frostbury Mining Co. v. New England Glass Co., 9 Cush. 
 115; Grimes v. Van Fetchen, 20 Mich. 410; Loyd v. Wight, 20 6a. 
 578; AsUey v. Emery, 4 M. & G. 262; Johnson v. Dodgson, 2 M. 
 & W. 656; Smith v. Hudson, 6 B. & S. 431; 34 L. J. Q. B. 145; 
 Acebal V. Levy, 10 Bing. 376; Maxwell v. Brown, 39 Me. 98; Hans- 
 man V. Nye, 62 Ind. 485. 
 
 112 Sch. Pers. Prop. pp. 484, 600; Benj. Sales, pp. 126, et seg., 
 142, et seg.; Am. n. 151-155; Tiede. Sales, §§ 67-70. 
 
 10 
 
146 STATUTE OF FEAUDS. [§' 102. 
 
 the statute.^^ But, a common carrier, while an agent of 
 the vendee to receive the goods, is not, as we have just 
 seen, his agent to accept them, unless, it should be added, 
 he is specially authorized to accept. 
 
 What acts constitute acceptance have been considered by 
 the courts, and from the authorities the rule may be de- 
 duced, that t.ViP AYPrAigp nf nyn iership over the goods by the 
 vendee, in whatever ma nner, or by whatever ac ts, is evi: 
 de nce of _acppptfluce.^^ 
 
 As to whether inspection of the goods is requisite to con- 
 stitute acceptance there is some conflict of authority.^* 
 But the doctrine is established by the weight of authority, 
 that so long as the right of rejection remains to the pur- 
 chaser, there has not been a sufficient acceptance to satisfy 
 this condition of the statute.^" 
 
 The question in regard to the actual receipt of the goods 
 generally occurs, if at aU, in cases where, at the time of 
 the sale, the goods are in the vendor's possession. In these 
 cases, generally, a transfer of the possession from the ven- 
 
 12 Cutwater v. Dodge, 6 Wend. 397; Barkley v. Rensselaer R. 
 R. Co., 71 N. T. 205; Snow v. Wamer, 10 Met. 132; Dean v. Tall- 
 man, 105 Mass. 443; Jones v. Mechanics' Bank, 29 Md. 2S7. 
 
 13 Parker v. Wallis, 5 E. & B. 21; Gray v. Davis, 10 N. Y. 285; 
 Tower v. Tudhope, 37 Up. Can. Q. B. 200; Dallard v. Botts, 6 Al- 
 len (N. B.), 443; Pinkham v. Mattox, 53 N. H. 606; Beaumont v. 
 Beevgerie, 5 C. B. 301; Kent v. Huskinson, 3 B. & P. 233; Maber- 
 ley V. Sheppard, 10 Bing. 99. 
 
 1* Morton v. Tibbetts, 15 Q. B. 428; 19 L. J. Q. B. 382; Currie v. 
 Anderson, 2 B. & E. 592; 29 L. J. Q. B. 87; Kibble v. Gough, 38 
 L. T. (N. S.), 204; Hunt v. Hecht, 8 Ex. 814; 22 L. J. Ex. 293; 
 Coombs V. Bristol & Exeter R. R. Co., 3 H. & N. 510; 27 L. J. Ex. 
 401; Smith v. Hudson, 6 B. & S. 431; 34 L. J. Q. B. 145. 
 
 IB Brand v. Fetch, 3 Keyes, 409; Shepherd v. Pressey, 32 N. H. 
 49; Messer v. Woodman, 22 N. H. 181, 182; Gilman v. Hill, 36 N. 
 H. 311; Belt v. Marriott, 9 Gill, 331; Coram v. Fisher, 30 Vt 428; 
 Clark V. Tucker, 2 Sandf. 157. 
 
§ 102.] STATUTE OF FRAUDS. 147 
 
 dor to the vendee, or his agent, is requisite. But, on the 
 completion of the bargain, it may be ag reed between_fc e 
 par ties that the vendor shall retain possession as the p ur- 
 ch aser's agent, or bailee, and this will constitute a suffi- 
 cient receipt. Or, at the ti me of the sale, the goods may 
 be jn the possession of the buyer as agent or bailee o f the 
 v endor ; in which case no act of receiving is necessary, as 
 the vendee thereafter holds the goods as owner. Or,j^e_ 
 goods att he time of th e sale may be in, or be placed in . 
 the_gcissessj on of a third person, to hold a s tbe stfmt n r 
 bailee^ of the purchaser, and this will be a sufficient receipt 
 by the vendee to satisfy the statute. It should be noticed, 
 however, that to render the receipt by a third person suffi- 
 cient, he_niust_faow_of_md_consentJto_th£to per- 
 son cannot ordinarily be made a ba ilgej)r_trusteR witbnnt 
 his knowledge and consent, or by operation of law.^° 
 
 A retenti on of lien by the vendnr , or of any control over 
 the goods as vendor, is incompatible with such a delivery 
 of possession, acceptance and receipt as the statute requires. 
 In regard to retention of vendor's lien, the reasoning runs 
 thus: Reneipl: inn pHes deliver y- there can, therefore, be no 
 actual receipt by the vendee until delivery by the vendor; 
 the ypTwjnjl^gjTgTi ia ygf. hy rlAlivAry; therefore, if vendor's 
 lien be lost there has been an actual receipt by the vendee, 
 otherwise not.^^ 
 
 i« Bentall v. Bum, 3 B. & C. 423; Boardman v. Spooner, 13 Al- 
 len, 353; Bassett v. Camp, 54 Vt 232; King v. Jarman, 35 Ark. 
 190; Farina v. Home, 16 M. & "W. 119; Godst v. Rose, 17 C. B. 
 229; 25 Ii. J. C. P. 61; Lucas v. Dorrien, 7 Taunt. 278; Edan v. 
 Dudfield, 1 Q. B. 306; Lilliewhite v. Devereaux, 15 M. & W. 285. 
 
 IT Marsh v. Rouse, 44 N. Y. 643; Kiiight v. Mann, 118 Mass. 
 443; Safford v. McDonough, 120 Mass. 290; Rodgers v. Jones, 129 
 Mass. 422; Messer v. Woodman, 22 N. H. 182; Kirby v. Johnson, 
 22 Mo. 354; Green v. Merriam, 28 Vt. 801; Edwards v. Grand 
 Trunk R. R. Co., 54 Me. 105; Barrett t. Goddard, 3 Mason, 107; 
 
148 STATUTE OF FRAUDS. [§ 102. 
 
 6. Earnest, or part payment. — One' of the alternative 
 conditions of the statute is, that the buyer shall "give 
 something in earnest to bind the bargain, or in part pay- 
 ment." The two things are sometimes regarded as the 
 same, but such was not the original meaning of the statute. 
 "Ra.mpfif: bindn thr hnrcnin; or, in other words, render s the 
 ba rgain complete and binding under the sta tute, while 
 part payment pre-supp ose s, or assumes the existence of a 
 bargain. The something given in earnest may be applied 
 in payment, and thus become "part payment;" but, 
 among the Romans, and as practiced in England at an 
 early day, it was an overt act designed to express the full 
 and final assent of the parties to the contract.^* Earnest . 
 must be something of intrinsic value. actuaUv passed by 
 th e buyer to th e vendor, a nd not returned by hi m.^* If, 
 pa rt payment is relied on to satisfy the statutSr it mustJ iR 
 som ething of pecuniary value, actually paid and accent ed. 
 A mere promise to pay will not suffice.^" 
 
 It is generally held in this country that the time of the 
 part payment is immaterial, if it be made before action 
 brought. But in the New York Statute of Frauds, the 
 provision corresponding to the English condition under 
 consideration is, "unless the buyer shall, at the time, pay 
 some part of the purchase money. "^^ In construing this 
 
 Chaplin v. Rogers, 1 East, 195; Elmore v. Stone, 1 Taunt 458; 
 Jackson v. Watts, 1 McCord, 288. 
 
 isBracton, 145; Glanville, ch. XIV; Beach v. Owen, 5 T. E. 
 409; Goodall v. Skelton, 2 H. Bl. 316. 
 
 iBBlenkinsop v. Clayton, 7 Taunt. 597; Howe t. Hayward, 108 
 Mass. 54; Noakes v. Morey, 30 Ind. 103. 
 
 20 Combs V. Bateman, 10 Barb. 573; Dow v. Worthen, 37 Vt. 
 108; Hunter v. "Wetsell, 17 Hun, 135; Archer v. Zeb, 5 Hill, 205; 
 Krohn v. Bautz, 68 Ind. 277; Edgerton v. Hodge, 41 Vt. 676; 
 Hicks V. Cleveland, 48 N. Y. 84; Walrath v. Ingles, 64 Barb. 265. 
 
 n N. T. R. S. Part II, TiOe 2, Ch. VII, § 3, sub. 3. 
 
§ 102.] STATUTE OF FRAUDS. 149 
 
 provision, however, the courts have held that it is satisfied 
 if a subsequent part payment be made for the express pur- 
 pose of complying with the statute, and the contract be 
 the n re-affirm e d by tha part.iesL- In such case the part pay- 
 ment is made "at the time," within the meaning of the 
 statute."^ 
 
 While the American statutes of frauds generally, and 
 in the main, are the same in substance as the English, 
 there may be differences in particulars and phraseology 
 which will require attention in weighing and applying au- 
 thorities. 
 
 7. Note or memorandum in writing. — The third alter- 
 native of the statute is in these words : " Or that some note 
 or memorandum in writing of the said bargain be made 
 and signed by the parties to be charged by such contract, 
 or their agents thereunto lawfully authorized." This pro- 
 vision, it should be observed, was not intended for cases 
 in which the parties, either in person or by their agents, 
 have signed a written contract, but it applies to parol con- 
 tracts, only. The written "note or memorandum" of the 
 contract, and the contract itself, are distinct things. The 
 "note or memorandum" assumes the existence of an ante - 
 ce dent parol contract , of which the writing required is a 
 brief note or memorandum, an essential under the statute 
 to validate the parol contract. 
 
 The principal questions arising under this alternative 
 condition of the statute may be considered under two 
 heads: 
 
 First. Time, and manner, of noting. — It is not essential 
 that the note or memorandum should be made at the same 
 
 22 Hunter v. Wetsell, 57 N. Y. 375; 84 N. T. 544; Webster v. 
 Zielly, 52 Barb. 482. 
 
150 STATUTE OF FRAUDS. [§' 102. 
 
 time with the contract,'" and it has been held that where 
 the sale was made by an agent, his authority to bind the 
 principal by executing the memorandum after the termi- 
 nation of his agency for other purposes, survives.** It is 
 not necessary that all the terms of the contract should be 
 noted at one time, or on one piece of paper, but it wiU suf- 
 fice if the whole contract be in substance contained on sep- 
 arate pieces, and these memoranda make such reference to 
 each other as to show that they are parts of one whole.^" 
 "Where the memorandum is made up of two or more writ- 
 ings, they must either all be signed, or the signed papers 
 must so refer to the unsigned parts that the latter may be 
 identified by the description,*' and the signed paper must 
 refer to the unsigned. A reference in the unsigned to the 
 signed . will not suffice.*'' Parol evidence to connect the 
 parts is not admissible,*' nor is it admissible to show terms 
 or stipulations not contained in the written memorandum.** 
 
 2SBlrd V. Munroe, 66 Me. 347; Bill v. Bament, 9 M. & W. 36; 
 Tiede. Sales, § 72; Benj. Sales, p. 174, et seq. 
 
 24 Williams v. Bacon, 2 Gray, 387. 
 
 25 Peck V. Vandemark, 99 N. Y. 29; Jelks v. Barrett, 52 Miss. 
 315; Fisher v. Kuhn, 54 Miss. 480; Lerned v. Wannemacher, 9 
 Allen, 412; LiCe v. Mahoney, 9 Iowa, 344; Tallman v. Franklin, 14 
 N. Y. 584; Hinde v. Whitehouse, 7 East, 558; Benj. Sales, p. 174, 
 et seq.; Tiede. Sales, § 75. 
 
 26 Tiede. Sales, § 75; Peek v. North Staffordshire R. R. Co., H. 
 L. C. 472-569; Moale v. Buchanan, 11 Gill & J. 322; Frank v. 
 Miller, 38 Md. 461; Farwell v. Mather, 10 Allen, 322; Hazard v. 
 Day, 14 Allen, 494; Ide v. Stanton, 15 Vt. 685; Stocker v. Part- 
 ridge, 2 Roberts, 193. 
 
 27 Freeport v. Bartol, 3 Greenl. 340; Brown v. "Whipple, 58 N. 
 H. 209; Ridgway v. Ingraham, 50 Ind. 148; Johnson v. Buck, 35 
 N. J. L. 339; Beckwith v. Talbot, 95 U. S. 289; Morton v. Dean, 
 13 Met. 388; Smith v. Jones, 66 Ga. 338. 
 
 28 Hinde v. Whitehouse, 7 East, 558; Kenworthy v. Scofield, 2 
 B. & C. 945; Pierce v. Corf, L. R. 9 Q. B. 210; Rishton v. What- 
 more, 8 Ch. D. 467; Benj. Sales, p. 174. 
 
 2» Fitzmaurice v. Bailey, 9 H. L. C. 78; Boydell v. Drummond, 
 
§ 102.] STATUTE OF FRAUDS. 151 
 
 But parol evidence is admissible to show that the writing 
 is not a correct or full memorandum of the parol agree- 
 ment." And if the reference contained in the signed pa- 
 per is ambiguous, parol evidence will be allowed to explain 
 the ambiguity, and identify the document to which the ref- 
 erence is made. This rule is in accordance with the doc- 
 trine of interpretation applicable to cases of latent ambigu- 
 ity." 
 
 Second. What the memorandum should contain. — 
 Stated generally, and in brief, the memorandum should 
 contain, in substance, all the material pa Tta nf tVio onryjr-int^ 
 incl uding the names, or a description , of both parties :^' 
 the subject matter, which must be fnvrpcMy gt.atprl -^s the 
 price, i f actually agreed upon by the parties;** the stipu- 
 lat ions as to credit , and the time and p lace of paymeTit. 
 
 11 East, 142; Holmes v. Mitchell, 7 C. B. N. S. 361; Benj. Sales, 
 Am. n. p. 200. 
 
 80 Elmore v. Kingsgate, 5 B. & C. 583; Goodman v. Griffiths, 1 
 H. & N. 574; Acebal t. Levy, 10 Bing. 376; Pitts v. Beckett, 13 M. 
 & W. 743. 
 
 3iRidgway v. Wharton, 6 H. L. C. 238; Bauman v. James, 3 
 Ch. 508; Long v. Milar, 4 C. P. D. 450; Cave v. Hastings, Q. B. D. 
 125; Shardlow v. Cotterell, 18 Ch. D. 280; 20 Ch. D. 90, C. A. 
 
 32 Cooper V. Smith, 15 Elast, 103; Allen v. Bennett, 3 Taunt. 
 169; Champion v. Plummer, 3 B. & P. 252; Lincoln v. Erie Pre- 
 serving Co., 132 Mass. 129; Calkins v. Falk, 38 How. Pr. 62; Mc- 
 Elroy V. Leery, 61 Md. 397; Anderson v. Harold, 10 Ohio, 399; 
 Grafton v. Cummings, 99 XJ. S. 100; Sale v. Lambert, 18 Eq. Rep. 
 1; Rossiter v. Miller, 46 L. J. Ch. 228; 5 Ch. D. 648, C. A. 
 
 33 Thornton v. Kempster, 5 Taunt. 786; Sari v. Bourdillon, 26 
 L. J. C. P. 78; 1 C. B. (N. S.), 188; May v. Ward, 134 Mass. 127; 
 McBlroy T. Buck, 35 Mich. 434; Waterman y. Meigs, 4 Cush. 497; 
 Penniman v. Hartshorn, 13 Mass. 87. 
 
 34lde v. Stanton, 15 Vt. 685; Smith v. Arnold, 6 Mason, 416; 
 Phelps V. Stillings, 6 N. H. 505; Adams v. McMillan, 7 Port. 73; 
 Soles V. Hickman, 20 Pa. St. 180; O'Neil v. Crane, 67 Mo. 250; 
 Argus Co. T. Mayor, etc., of Albany, 55 N. T. 495. 
 
152 PASSING OF TITLE. [§ 103. 
 
 if such there be;" and any other terms and condition s 
 making a na,rt, of the contract .^" If the memorandum con- 
 tains all the statutory requisities, and appears as an offer, 
 its a cceptance may be proved by parol in the absence o f 
 written evidence of the acceptance.*^ 
 
 In regard to the signature of the party to be charged, 
 or his authorized agent, it is sufficient for the present 
 purpose to say, that this requirement of the statute has 
 generaly been quite liberally construed by the courts 
 where anything has been done with the intention of sign- 
 ing.*' 
 
 § 103. Contract of sale in respect of passing title. — 
 Having considered what contracts of sale are within the 
 statute of frauds, and the conditions requisite to render 
 such contracts "good" within the true meaning of the 
 statute, we come now to treat of contracts of sale in the 
 respect of passing property or title. The formation of a 
 valid contract is one thing, and its effect when formed, 
 another; and here we dismiss the Statute of Frauds, and 
 recur to common law doctrines. 
 
 The first question demanding consideration, both on 
 account of its importance and frequent occurrence, is the 
 distinction between an exe cuted and executo ry contract 
 
 88 Wright V. Weeks, 25 N. Y. 158; Norris v. Blair, 39 Ind. 90; 
 Williams v. Robinson, 73 Me. 186; Keiete v. Myer, 61 Md. 558; 
 Smltli T. Shell, 82 Mo. 215. 
 
 s« Riley v. Farnsworth, 116 Mass. 223; Oakman. v. Rogers, 120 
 Mass. 214; Peltier v. Collins, 3 Wend. 459. 
 
 87 Warner v. Wellington, 3 Drew. 523, 25 L. J. Ch. 662; Smith 
 V. Neal, 2 C. B. (N. S.), 67; 26 L. J. C. P. 143; Justice v. Lang, 
 42 N. Y. 493; Mason v. Dicker, 72 N. Y. 598; Old C!olony R. R. 
 Co. V. Sears. 6 Gray. 25; Lowber v. Connit, 36 Wis. 176; Smith v. 
 Smith, 8 Blackf. 208; DeCordon v. Smith, 9 Tex. 129; Lowrey 
 V. Mechaffey, 10 Watts, 387. 
 
 s«Tlede. Sales, §§ 79, 80; Benj. Sales, p. 204, et seq. 
 
§ 103.] PASSING OP TITLE. 153 
 
 of sale. This distinction has been already briefly noticed,*" 
 but some further attention will be given to it in this 
 connection. The importance of the question appears from 
 the fact that the answer may determine on whom the loss 
 falls, where the subject of the sale has been lost or des- 
 troyed;*" or decide conflicting claims upon the property 
 by the creditors of the vendor and vendee;*^ and, also, in 
 other cases sometimes arising, as where there are conflicting 
 claims between vendees touching the ownership of the 
 property, or where it becomes necessary to decide upon the 
 proper form of action for the recovery of the goods.*^ 
 
 The principal rules governing the transfer, to be con- 
 sidered in determining the question in cases liable to arise 
 in practice, will now be noticed briefly : 
 
 1. Int ention of the varties. — The leading rule is, the 
 int ention of the parties . The intentio n may he expre ssed, 
 or im plied from the circums tances; and when ascertained, 
 
 s» Eiipra, § 96. 
 
 *oMartineau v. Kltching, L. R. 7 Q. B. 436; Logan v. La M&- 
 surier, 6 Moore, P. C. 116; Rugg v. Minett, 11 East, 200; Zaquey 
 V. Furnell, 3 Camp. 240; Ollphant v. Baker, 5 Denio, 379; Gil- 
 bert V. N. Y. C. R. R. Co. 4 Hun, 378; Joyce v. Adams, 8 N. Y. 
 291; Pleasants v. Pendleton, 6 Rand. 473; Llngham v. Eggleston, 
 27 Mich. 324; Hutchinson v. Hunter, 7 Pa. St. 140; Waldo v. Bel- 
 cher, 11 Ired. 609. 
 
 *i Hanson v. Myer, 6 East, 614; AcranuCn v. Morris, 8 C. B. 449; 
 Colder v. Ogden, 15 Pa. St. 58; Brewer v. Smith, 3 Greenl. 44; 
 Weld V. Cutler, 2 Gray, 195; Huff v. Hires, 39 N. J. L. 4; Hale v. 
 Huntley, 21 Vt. 147; Smart v. Batchelder, 51 N. H. 140; Comfort 
 V. Kiersted, 26 Barh. 472; Ward v. Shaw, 7 Wend. 404; Posdick 
 V. Schall, 99 U. S. 235. 
 
 42HDrr V. Baker, 8 Cal. 603; Croft v. Bennett, 2 N. Y. 358; 
 KImberly v. Patchin, 19 N. Y. 330; Groat v. Gile, 51 N. Y. 431; 
 Pfistner v. Bird, 43 Mich. 14; Barrow v. Coles, 3 Camp. 92; Mirea 
 V. Solesby, 2 Mod. 243; Cushman v. Holyoke, 34 Me. 289; Devane 
 V. Pennell, 2 Ired. 37; Davis v. Hill, 3 N. H. 382; Strauss v. Ross, 
 25 Ind. 300. 
 
154 PASSING OF TITLE. [§ 103. 
 
 if legal, it will be decisive of the question. On this point 
 the authorities are abundant and harmonious.*' 
 
 2. Deliver y. — Treating delivery as related to a transfer 
 of title, it may be stated that an actual delivery of posses- 
 sion from the vendor to the vendee, is not requisite to pass 
 the title as between the parties, unless it wagjieic-inlfin- 
 tion that the t.itlfi shnnld pass before such deliv ery. But 
 it is quite generally held that retention of possession by 
 the vendor is prima facie evidence of fraud upon creditors 
 and subsequent purchasers.** 
 
 3. Delivery without transfer of title. — Th e vendor m ay 
 flpliTOTijwygpgginTi to the Purchaser, reserving to himse lf 
 the ti tle until nayment of the purchase price . D elivery , 
 however, wit hout reservation of the title by express agree - 
 m ent is p rftsmnptively ajwajy gr of prepay ^eTit, and passes 
 title to the v endee.*' 
 
 If the vendor thus retains title, and the purchase price 
 be not paid according to the agreement, Via ms^y vponvpr 
 possessio n of t he goods.*' 
 
 43Tiede. Sales, § 83; Benj. Sales, Am. n. pp. 239, 240; Russell 
 V. Carrington, 42 N. Y. 118, 1 Am. Rep. 498; Terry v. Wlieeler, 
 25 N. Y. 525; Hurd v. Cook, 75 N. Y. 454; Hatch v. Oil Co., 100 
 U. S. 131; Elgee v. Cotton Cases, 22 Wall. 187; Bellows v. Wells, 
 36 Vt. 599; Fitch v. Burk, 38 Vt. 689; Callagan v. Myers, 89 111. 
 570; Weed v. Boston Ice Co., 12 Allen, 377; Stone v. Peacock, 35 
 Me. 388; Liester v. Bast, 49 Ind. 588; Fletcher v. Ingram, 46 Wis. 
 201. 
 
 ** Simmons v. Swift, 5 B. & C. 857; Gilmore v. Supple, 11 P. C. 
 551; Dixon v. Yates, Barn. & Ad. 313; Wade v. Moffit, 21 111. 110. 
 
 iBHammet v. Linneman, 48 N. Y. 399; Bowen v. Buck, 13 Pa. 
 St. 146; Harlow v. Ellis, 15 Gray, 229; Mixey v. Cook, 31 Me. 
 340. 
 
 *8Ayer v. Bartlett, 9 Pick. 156; Reed v. Upton, 10 Pick, 522; 
 Hasbrouck v. Lounsberry, 26 N. Y. 598; Brant v. Bowlby, 2 B. & 
 Adol. 932; Thompson v. Ray, 46 Aid. 224; Fosdick v. Shall, 99 U. 
 S. 250; Boon v. Moss, 70 N. Y. 465; Vassar v. Buxton, 86 N. C. 
 335; Fleck v. Warner, 25 Kan. 492. 
 
§ 103.] PASSING OP TITLE. 155 
 
 The delivery of goods to a common carrier c onsigned 
 to the vendee, is, as a rule, delivery to the vendee, and 
 transfers the title to him. But where the bill of lading is 
 taken by the vendor, to his own order, he reserves, pre- 
 sumptively, the title and the jus disponendi, and is at 
 liberty to dispose of the goods to others.*^ Th e bill o f 
 lading r epresents the goods, and its transfer nperatea hk a. 
 transf er of the same.*° 
 
 4. Sale of specific goods unconditionally. — I n a contract 
 of sale of specifi c goods unconditionally, presumptively th e 
 title pas ses immediatel y: and, according to American au- 
 thorities, there is an immediate transfer of_ titIe in case th e 
 
 pri(?A^Vigg Vippp pair), nr nrprlit. pyprpsaly fyivan Butjwhere 
 
 the goods are not sold on credi t. pT-ppgympnt nf prino ia a 
 condition _precedent to th etra nsfer of titl e.*' It should be 
 stated, however, that some of the later English cases hold, 
 that the title passes on completion of the contract, without 
 prepayment of price, but that the vendor may withhold 
 possession until the price is paid. The American holding 
 seems the more reasonable."* 
 
 5. Sale of specific chattels conditionally. — I t is qui te 
 obvious that on a sale of specific chattels subject to a co n- 
 dition precedent, the title will not pass until the conditio n 
 
 «Dows v. Nat. Exch. Bank, 91 V. S. 618; St. Joze v. Indians, 
 1 Wheat. 208; Hobart v. Littlefield, 13 R. I. 341; Farmers' etc.. 
 Bank v. Logan, 74 N. Y. 568; Wilmhurst v. Bowker, 2 M. & G. 
 792; Bllershaw v. Magniac, 6 Ex. 570. 
 
 48 Marine Bank v. Wright, 48 N. Y. 1; Bank of Rochester v. 
 Jones, 4 N. Y. 497; Mich. Cent. R. R. Co. v. Phillips, 60 111. 190; 
 Schumaker v. Eby, 24 Pa. St. 521; First Nat Bank v. Bailey, 
 115 Mass. 230. 
 
 49Tiede. Sales, § 86; Barrett v. Pritchard, 2 Pick. 512; Ayer v. 
 Bartlett, 9 Pick. 156; Reed v. Upton, 10 Pick. 522; Fishhack v. 
 Van Dusen, 33 Minn. Ill; 33 Am. L. R. 506, note. 
 
 BO See Tiede. Sales, § 86. 
 
156 PASSING OF TITLE. [§ 103. 
 
 i s perfor med. While the general doctrine thus stated is 
 quite simple, and nniversaUy recognized, the question as 
 to when the contract is encumbered with a condition pre- 
 cedent, has given rise to considerable discussion, and some 
 conflict of judicial opinion. As the limitation of this 
 treatise will not permit a full examination of the question, 
 the reader is referred to the textbooks hereunder named, 
 and the authorities therein cited, for an exhaustive discus- 
 sion of the subject.*^ 
 
 6. Sale of goods not specific. — Ident ification of the sn b- 
 ject m atter of the sale is essential to tha traM (\ fojK(\r\p .f>r of 
 title thereto . Hence, where the contract is for the sale of 
 a quantity of goods without reference to any particular lot, 
 or of a portion of a larger bulk, no title passes in severalty 
 until the goods which are to constitute the subject of the 
 sale are ident ifipfi, or Rftlfwtpd for trans fer. 
 
 Thus far the authorities are substantially in accord, and 
 a few citations will suffice."' In regard to the sale of an 
 unidentified portion of a larger bulk, some authorities hold 
 that, while titie in severalty cannot be acquired by the 
 vendee without a separation from the bulk, he may acquire 
 titie to a part in common with the other proprietors of the 
 mass.'* This doctrine may be accepted as applicable to 
 
 siTiede. Sales, § 87; Benj. Sales, p. 244, et seq.; Am. n. 263, 
 et seq.; 2 Kent, Com. p. 497; 2 Sch. Pers. Prop. p. 281. 
 
 62 Foot v. Marsh, 51 N. Y. 288; Brewer v. Smith, 3 Greenl. 44; 
 Merrill v. Humiewell, 13 Pick. 213; Woods v. McGee, 7 Ohio, 467; 
 Hutchinson v. Hunter, 7 Pa. St 140; Waldo v. Belcher, 11 Ired. 
 609; Bailey v. Smith, 43 N. H. 141; \sfallace v. Breeds, 13 East, 
 522; Busk v. Davis, 2 M. & S. 397. 
 
 53Crofoot V. Bennett, 2 N. Y. 258; lOmberly v. Patchin, 19 N. 
 Y. 330; Sanger v. Waterbnry, 116 N. Y. 371; Hoyt v. Hartford 
 Ins. Co., 26 Hnn, 416; Young v. Miles, 20 Wis. 615; Iron Cliffs 
 Co. V. Buhl, 42 Mich. 86; HurfT v. Hires, 39 N. J. U 581; PhUips 
 V, Ocmulgee Mills, 55 Ga. 634. 
 
§' 104.] MISTAKE, ETC., OF CONSIDERATION. 157 
 
 cases where it appears that the parties intended a transfer 
 of the title before a separation of the part from the whole. 
 7. Appropriation on sale of goods not specific. — ^Under 
 a contract for the sale of goods not specific, in order to pass 
 the title i|n severalty to the vendee, there nnist he an appro- 
 priati on of particular goods to the contract, and this must 
 be with the consent of the vendee, express or implied.'* 
 
 § 104. Mistake, failure, and illegality of considera- 
 tion. — 1. Mistake. — ^We have seen '"' that the assent of par- 
 ties is an essential element of a valid contract; that the 
 minds of the parties must meet and assent to the same 
 thing, in the same sense, at the same instant of time; and, 
 consequently, that a mistake of fact in regard to the sub- 
 ject matter, or terms of the contract, in any material re- 
 spect, will be fatal to the validity of the contract. Or, more 
 accurately stated, in case of such a mistake, no contract is 
 made for want of the requisite assent of parties. 
 
 The leading rules governing mistakes are the following: 
 
 (a) The mistake under consideration is one of fact, and 
 not of law. Every person competent to contract is pre- 
 sumed to know the law; the ancient and universal rule be- 
 ing, ignorantia juris neminem excusat. 
 
 (b) As a general rule it is only a mutual mistake that 
 will render a contract void, or voidable, but a mistake on 
 one side and a fraud on the other will have the same effect. 
 
 BiTiede. Sales, § 89; Benj. Sales, pp. 283-293, 312-314; Han- 
 son V. Myer, 6 East, 614; Atkinson v. Bell, 8 B. & C. 277; Moody 
 V. Brown, 34 Me. 107; Grove v. Brlen, 8 How. 429; Bank v. 
 Bangs, 102 Mass. 291, 295; Bennett v. Smith, 15 Wend. 493; 
 Shawham v. Van Nast, 25 Ohio St. 490; Aldrldge v. Johnson, 7 E. 
 & B. 885, 26 L. J. B. 296; Fragano v. Long, 4 B. & C. 219; Krul- 
 der V. Ellison, 47 N. Y. 36; Alexander v. Gardner, 1 Bing. N. C. 
 671. 
 
 nil Supra, § 99. 
 
158 MISTAKE, ETC., OF CONSIDERATION. [§' 104. 
 
 "Where one_2arty only acts under a mistake, the other 
 party not being responsible for it, the contr act js ordina r- 
 ily enforceable. But to this rule there are exceptions 
 based on special circumstances to which the reason of the 
 rule is not applicable; and, as "reason is the soul of the 
 law, when the reason of any rule ceases, so does the law 
 itself." The maxim is, cessante ratione legis cessat et ipsa 
 lex. 
 
 (c) A mist ake of the character now _d pfiTifffl will excuse a 
 
 party frnm t,b" pPTformaTinp nf ati p.TCP.cutrtry contract, and 
 will also entitle him to rescind it. aftfir fiYftcntioTi if hp. 
 plac es the other party in statu quo. "And if that be not 
 possible," says Benjamin, "the dec eived party must be 
 content ^th a coa p'^nfi''^^^i"" in da^ riagps " If he has paid 
 for an article he may recover back the money, provided he 
 restores the article to the other party in the same condition, 
 substantially, as when received by him, otherwise not.°° 
 
 2. Failure of consideration. — It is an elementary prin- 
 ciple that a sufficient con sideration is essential to a valid 
 co ptract. In general a valuahle prnigirlATatimi is rpi^nigito ; 
 but a good consideration, "such as that of blood, or of 
 natural love and affection," will suffice in some cases.'^ 
 Mr. Bishop's concise and comprehensive definition of a 
 cons ideration is, "so mething esteemed in law as nf valnp!, ^^ 
 exc hange for which the promise in a contract is made ; ' ' 
 and such a consideration only is in question under the head 
 of failure. 
 
 Cases sometimes occur in which the consideration, ap- 
 parently valuable and sufficient at the time of the con- 
 
 o«Benj. Sales, pp. 346-356; Am. n. p. 356; Bishop, Cont. (2n(J 
 Bnl. Ed.), §§ 462-466, 693-706; 1 Story, E<i. Jur. § 142, et seq.; 
 Pom. Eq. § 852, et seq. 
 
 »T1 Pars. Cont. p. 427, et seq.; 1 Bouv. L. Diet. "Considera 
 tlon;" Bishop, Cont. (2nd Enl. Ed.), § 35, et seq. 
 
§' 104.] MISTAKE, ETC., OF CONSIDERATION. 159 
 
 tract, turns out to be false or valueless, revealing a total 
 failure of consideration. Money paid or deposited on such 
 a contract may be recovered back."* 
 
 It should be noticed, however, that if the purchaser gets 
 what he bargained for, in the absence of mistake or fraud, 
 he will not be permitted to allege failure of consideration, 
 however worthless it may be, in avoidance of the contract.'* 
 
 If the failure of consideration be only partial, the 
 b uyer's right to rescind will depend upon thfl-^antirety, or 
 divisibility, of the contract. If the contract be entire, and 
 the buyer has not accepted, or is not willing/to^accept,-a 
 "partial performance, he may reject the contract in t oto, 
 and reco ver back the pr ice. But if heh as accepted a^ar - 
 tial performance, he is not at liberty to rescind, and must 
 seek another remedy. If, however, the consideration and 
 the agreement founded thereon are both divisible, consist- 
 ing of several parts, and the part failure of consideration 
 can be apportioned to a corresponding part of the agree- 
 ment, it may be regarded and treated as several contracts, 
 and the rights of the parties adjusted accordingly. Money 
 paid on the failed portion of the agreement may be recov- 
 ered back." 
 
 3. Illegality of consideration. — It is a well established 
 principle that a contract founded upon a consideration, 
 or requiring the performance of an act which is immoral, 
 illegal, or contrary to public policy, will fall before the 
 judgment of a court, either of law or equity. If the con- 
 sideration for an indivisible promise be in part legal and 
 in part iUegal, the promise will be of non-effect, because of 
 
 68 1 Pars. Cont. p. 462; Bishop, Cont. (2nd Enl. Ed.), $ 71; 
 Benj. Sales, pp. 346-355; Am. n. p. 356; Bout. L. Diet "Consid- 
 eration," sub. 12. 
 
 80 Citations last supra. 
 
 «oSee authorities cited, tupra. 
 
160 FRiUDULENT SALES. [§ 105. 
 
 riBsting in part upon an illegal consideration which vitiates 
 ite whole ; but if the promise be divisible, or in other words 
 if there be two promises, the one resting on the legal, and 
 the other on the illegal, consideration, the former will stand 
 and the latter faU.'^ 
 
 § 105. Fraudulent sales. — ^It is a well established and 
 wholesome rule, t hat fraud renders all contracts voidable. 
 This for two reasons ; first, s uch a contract lacks the assen t 
 o f t.hpi (^pi PpivpH i'"T^7, f"^ an assent obtained by fraud, in 
 contemplation of law, is no real assen t ; and, secondly, it is 
 agai nst the spirit and policy of the law to per mit the c^p.- 
 frauding party to profit by his own wron g."^ 
 
 It is quite difficult, if not impossible, to formulate a de- 
 finition of fraud that shall be at once sufficiently accurate' 
 and comprehensive, for the reason that its modes and 
 forms are multifarious, and its disguises subtlfe and spec- 
 ious. It will better subserve our purpose to point out the 
 principal elements of such fraud as will avoid a contract 
 of sale, and the rules applicable thereto. 
 
 1. Mis rfi.'prP.IIPMtntimt,. nr "'^'"'•"nli^emt nf n mnieri^l fnrj^ 
 
 To constitute such a fraud there must be a misrepresenta- 
 tion or concealment of a material fact. 
 
 It is not necessary that the misrepresentation be in 
 words. It may be effected by acts and devices which create 
 in the mind of the other party a mistaken belief in regard 
 to the fact. Great skill is often exercised in practicing 
 
 "Bishop, Cont (2nd Enl. Ed.), §§ 59, 74, 469, et seq.; 1 Pars. 
 Cont (7 Ed.), pp. 456-459; Bouv. L. Diet. "Consideration," sub. 
 11. 
 
 e^Benj. Sales, p. 360, et seq.; Bishop, Cont. (2nd Enl. Ed.), 
 §§ 641, 642; Dambmann v. Schulting, 75 N. Y. 55; Rodman v. 
 Thalhelmer, 7 Pa. St. 232; Smith v. Smith, 21 Pa. St. 367; Jones 
 V. Emery, 40 N. H. 348 
 
§' 105.] FRAUDULENT SALES. 161 
 
 deceit." But concealment alone of a material fact is not 
 necessarily fraudulent in law, however it may be judged i» 
 the forum of conscience. It is only so when a party is- 
 bound to disclose his knowledge in regard to all material 
 facts by reason of his fiduciary relation to the other party ^ 
 or where the subordinate condition, or menta.1 incapacity, 
 of the other party demands of him entire frankness and 
 scrupulous honesty.** As a general rule, with the excep- 
 tions now stated, where an article is offered for sale, and i» 
 open to the inspeption of the purchaser, he will not be al- 
 lowed to complain that the alleged defects were not pointed 
 out to him by the vendor. 
 
 There are two maxims that apply in such cases, namely : 
 Caveat emptor, and simplex commendatio non obligat. 
 The purchaser, in the absence of fraud on the part of the 
 vendor, and with an opportunity of ascertaining the char- 
 acter and quality of the goods, must rely upon his own 
 care and judgment.®" This rule, however, must be taken 
 with the qualification that the use of any device by the 
 vendor to induce the buyer to omit inquiry, or to divert 
 his attention from defects, may constitute fraud. 
 
 While the maxim caveat emptor requires the exercise of 
 care and judgment on the part of the purchaser, there are 
 cases holding that he may rely on a misrepresentation with- 
 out inquiry, believing it to be true, and yet have his action 
 for fraud."" These cases do not seem to be wholly con- 
 sistent with the general trend of authorities on the subject. 
 
 83Tiede. Sales, §§ 158, 164; Benj. Sales, p. 361; Bishop, Cont. 
 -(2nd Bnl. Ed.), §§ 651, 652. 
 
 e*Tiede. Sales, § 159; Bishop, Cont. (2nd Enl. Ed.), §§ 655-660; 
 Benj. Sales, p. 361; 2 Kent, Com. p. 482, et seq.; Tate v. William- 
 son, L. R. 2 Ch. 55; McPherson t. Watt, L. R. 3 App. Cas. 254; 
 Yosti V. Laughran, 49 Misso. 594 ; Harkness v. Fraser, 12 Fla. 33R. 
 
 •BTIede. Sales, § 159; Benj. Sales, p. 362; 2 Kent, Com. p. 485. 
 
 ••Jones V. Rimmer, 14 Ch. D. 588, 592; Redgrave v. Hurd, 20 
 
 11 
 
162 FRAUDULENT SALES. [§' 105. 
 
 The vendor may lawfully commend his goods, even to 
 exaggeration, provided he do not make any false repre- 
 sentation as to matters of fact. The mere expression- of an 
 opinion in regard to the qualities or value of an article 
 will not, as a rule, constitute an element of fraud. The 
 distinction in law is between the expression of an opinion 
 and the statement of a fact."'' 
 
 2. Intention to deceive. — ^An essential element of a 
 fraudulent sale is an intention to deceive; or, what i s 
 equ ally culpable, a reckless false statement of facts to in - 
 duc e a purchase, without knowledge of the truth or falsity 
 of the statement. Fraud cannot be predicated of repre- 
 sentations which the vendor honestly believes to be true, 
 albeit they are false in fact. But a party has no moral 
 or legal right to make representations of the truth or fals- 
 ity of facts of which he is ignorant, and if such representa- 
 tions prove false, he will be held responsible as for an in- 
 tentional misrepresentation."' 
 
 3. Beliance upon the representations. — To sustain a 
 charge of fraud, it must appear that the false represen- 
 
 Ch. D. 1, 13; Hitchlns v. Pettengill, 58 N. H. 3; Central Railway 
 V. Hisch, Law Rep. 2, H. L. 99, 120; 2 Chit. Cont. (11 Am. Ed.), 
 1040, 1041; Leake, Cont. (2 Ed.), 380-383; Bishop, Cont. (2nd 
 Enl. Ed.), § 655. 
 
 «i Ellis V. Andrews, 56 N. Y. 83; Bishop v. Small, 63 Me. 12; 
 Somers v. Richards, 46 Vt. 170; Homer v. Perkins, 124 Mass. 431; 
 Buschman v. Cold, 52 Md. 202, 207; Sledge v. Scott, 56 Ala. 202; 
 Gordon v. Butler, 105 U. S. 553; Graffenstein v. Epstein, 23 Kan. 
 443; Tiede. Sales, §§ 158,166; Bishop, Cont. (2nd Enl. Ed.), § 664; 
 2 Kent, Com. pp. 485^87. 
 
 68 Bishop, Cont ((2nd Enl. Ed.), § 661; Tiede. Sales, § 160; 
 French v. Vining, 102 Mass. 132; Weeks v. Burton, 7 Vt. 67; Cow- 
 ley v. Smith, 46 N. J. L. 380; Boyd v. Browne, 6 Barr, 310; Seller 
 V. Clelland, 2 Col. 532; Weir v. Bell, L. R. 3 Ex. D. 238; Mitchell 
 v. Zimmerman, 4 Tex. 75; Grim t. Byrd, 32 Gratt. 293; Parmlee 
 V. Adolph, 28 Ohio St 10. 
 
§' 105.] FRAUDULENT SALES. 163 
 
 tatioD S, were relied upon b y the party who m they were in - 
 tended to influence, otherwise he could not complain of 
 having been deceived, or defrauded, by such representa- 
 tions. It is not necessary, however, that the misrepresen- 
 tations should have constituted the sole inducement to the 
 contract, but to sustain the charge of fraud, it must appear 
 that the false representations were so far influential, that 
 without them assent to the contract would not have been 
 given." 
 
 4. Damage sustained. — ATinthgr easential plfiment in an 
 actionable fraud, is the resultiiigJamage„sustaiBed,bxJhe 
 part^_decfii2ed. No matter how gross the fraud, if no 
 damage ensues no cause of action arises. The doctrine 
 applicable is tersely stated by Lord Coke thus: "Fraud 
 without damage, or da,mage without fraud, gives no cause 
 of action."" 
 
 5. Fraud on the vendor. — ^What has now been said of 
 fraudulent sales relates mainly to frauds practiced by the 
 vendor upon the buyer. The latter may become the fraud- 
 ulent party to the contract, and the former his victim. 
 Frauds of the buyer are various in forms and modes, but 
 all are schemes to procure from the vendor his goods with- 
 out payment of the purchase price. In essence and moral 
 quality, they constitute the crime of larceny in the guise 
 of honest traffic. The effect of the buyer's fraud upon the 
 
 •9 Bishop, Cont. (2nd Enl. Ed.), §§ 653, 654; Tiede. Sales, § 161; 
 Hull V. Fields, 76 Va. 591; Winter v. Bandell, 30 Ark. 362; Greg- 
 ory V. Schoenell, 55 Ind. 101; Smith v. Hughes, 6 Q. B. 597; 2 
 Sch. Pers. Prop. p. 632. 
 
 70 3 Bulst. 95. Tiede. Sales, S 162; Smith t. Kay, 7 H. L. Cas. 
 774; Atwood v. Small, 6 Clark & F. 443; Weaver v. Wallace, 9 
 N. J. L. 251; Neidefer v. Chastain, 71 Ind. 363; Morrison v. Lods, 
 39 Cal. 385; Phipps v. Buckman, 30 Pa. St. 402; Hanson v. Edger- 
 ton, 29 N. H. 357; Young v. Hall, 4 Ga. 95; Castleman v. Griffin, 
 13 Wis. 535. 
 
164 FRAUDULENT SALES. [§ 105. 
 
 contract is substantially the same as that of the vendor, to 
 render it void ab initio, or voidable.'^ 
 
 The doctrine is often met with in the books, that in case 
 of a fraudulent purchase the title does not pass from the 
 vendor to the vendee. This is not an accurate statement 
 of the law. A distinction should be made betweeQ_a_S3'e 
 to a frau dulent purchaser, and a mere delivery of goo ds 
 into his_possession . Or, differently stated, a distinction 
 between a case where the owner intends to transfer both 
 title and possession, and where he only intends to transfer 
 the possession. In the former case there is a sale, however 
 fraudulently procured ; in the latter not. This distinction 
 is manifest in view of the effect of a transfer of the goods 
 by the fraudulent vendee to a third party, a bona fide . 
 purchaser. If t.TiA wtiHpp ^alrpg hnth fitlPi anrl possessinn. 
 and tr ansfers the goods to a bona fide purchaser before dis - 
 affirmanc e of the contract by the vendor , suc h purcha ser 
 will ta ke a good title which he can maintain against the 
 rights of the original vendo r. On the contrary, if the 
 original transferee took possession only, the vendor not in- 
 tending to pass the title, he cannot convey a title to any- 
 body, and for the sufficient reason that he has none to 
 convey. It may be difficult to see, at a glance, how the 
 defrauded vendor may reclaim his property from his 
 vendee when the title has passed to the latter, so that he 
 could transfer a good title to a third party. Chief Justice 
 Shaw speaks of this difficulty in Hoffman v. Noble,'"' where 
 he says: "It is a well established rule, that goods ob- 
 tained by fraud in the sale, as by false representations, 
 may be reclaimed by the vendor. This does not proceed 
 on the ground that the property in the goods does not pass 
 
 "Tiede. Sales, § 168: Beni. Sales, d. 366. 
 " 6 Met. 73. 
 
§' 105.] ifRAUDUliENT SALES. 165 
 
 by the sale, but that the dishonest purchaser shall not hold 
 it against the deceived vendor." But when such a pur- 
 chaser transfers the goods to a third party, a hona fide pur- 
 chaser, the superior equity of the latter will prevail over 
 the legal rights of the vendor." 
 
 Cases sometimes occur in which a buyer purchases goods 
 with the intention of not paying for them. The doctrine 
 may be regarded as established by the weight of authority, 
 that in such cases t he purchase is fraudulent and vnidabler 
 although no false representations were made, or active 
 fraud committed by the vendee. It should be noticed that 
 to constitute this species of fraud the purchaser, at the 
 ti me of the sale, m ust have an affirmative intentioTi not to 
 pay for the goo ds. A mere negative or purposeless con- 
 dition of mind wiU not suffice, but a design to defraud may 
 be inferred from the conduct and circumstances of the 
 buyer.''* 
 
 6. Fraud on preditors. — ^We have seen ■"* that one of the 
 limitations to the absolute ownership of property, is its 
 liability for the satisfaction of the just debts of the owner. 
 He cannot legally alienate it by gift, or otherwise dispose 
 cf it, in fraud of his creditors. 
 
 Ts Benj. Sales, p. 366, et seg.; Tiede. Sales, § 168; Stevenson v. 
 Newnham, 13 C. B. 285; 22 L. J. C. P. 10; Pease v. Gloahec, L. R. 
 1 P. C. 220; Kingsford v. Merry, 11 Ex. 577; 25 L. J. Ex. 166; 
 Oakes v. Turquand, L. R. 2, H. L. 325; Naugatuck Cutlery Co. v. 
 Babcock, 22 Hun, 481; Van Nest v. Conover, 20 Barb. 547; Butler 
 V. Hildreth, 5 Met. 49; Buckley v. Morgan, 46 Conn. 393; Dlbley 
 V. Sheldon, 10 Blatch. 178; Easter v. Allen, 8 Allen, 7; Pringle v. 
 Phillips, 5 Sandf. 157; Devoe v. Brandt, 63 N. Y. 462; Paddon v. 
 Taylor, 44 N. T. 371. 
 
 14 Tiede. Sales, § 170; Hennequln v. Naylor, 24 N. T. 139; Dow 
 V. Sanborn, 3 Allen, 181; Donaldson r. Parwell, 93 U. S. 631; 
 Wright V. Brown, 67 N. Y. 1; Farges v. Pugh, 93 N. C. 31; Mul- 
 liken v. Millar, 12 R. I. 296. 
 
 T5 Supra, § 6, 
 
166 ILLEGAL CONTRACTS OF SALE. [§ 106. 
 
 The English statutes on this subject^' have been incor- 
 porated, in substance, into the statutes of most, if not all, 
 of the States of this country. They expressly declare void 
 all conveyances made with intent to "hinder, delay, or de- 
 fraud creditors." These statutes embody, clearly express, 
 and re-enforce by legislative sanction, a principle of the 
 common law. By virtue of this principle, a contract un- 
 impeachable by the parties, may be void as against existing 
 creditors. And a transfer may be avoided by subsequent 
 creditors, even, where it is made to appear that the con- 
 veyance was made for the purpose of defrauding such 
 creditors, as a voluntary conveyance with the view of 
 shielding the property from liability for anticipated in- 
 debtedness.'^ 
 
 Discussion of subordinate and incidental rules applicable 
 to the species of frauds under consideration is necessarily 
 omitted under the prescribed limitations of this treatise. 
 The reader will find these rules f uUy discussed in the text- 
 books hereunder named, and in the adjudications therein 
 cited. 
 
 § 106. Illegal contracts of sale. — ^Illegality of consid- 
 eration has been already noticed.'* Illegality of subject- 
 matter, purpose, or tendency, will now be considered. 
 
 The general doctrine on this subject is concisely and 
 comprehensively stated by Mr. Bishop as follows: "Any 
 act which is forbidden either by the common or the stat- 
 utory law — whether it is malum in se, or merely malum 
 
 '8 13 Ellz. ch. 5, and 27 Eliz. ch. 4. 
 
 " Benj. Sales, p. 412, et seq.; Tiede. Sales, § 174; 2 Kent, Com. 
 p. 440, et seq.; 3 Pars. Cont. (7 Ed.), pp. 447, n. (g), 440-443; 
 Bishop, Cont (2nd Enl. Ed.), §§ 1200-1213; 2 Sch. Pers. Prop, 
 p. 101, et seq. 
 
 '8 § 104, sub. 3. 
 
§' 107.] CONDITIONS, ETC. 167 
 
 prohibitum; indictable, or only subject to a penalty or 
 forfeiture; or however otherwise prohibited by a statute, 
 or the common law — cannot be the foundation of a valid 
 contract; nor can anything auxiliary to, or promotive of, 
 such act. And this doctrine is the same in the equity tri- 
 bunals as in those of law." " 
 
 If the contract of sale be void from any of the causes 
 now mentioned, neither party can maintain an action upon 
 it. Ex turpi causa, non oritur actio is the maxim that ap- 
 plies. Nor win either party be relieved from the effect of 
 executing the sale. The vendor wiU be at liberty to retain 
 the price if it be paid, and the buyer may hold the goods 
 if deUvered.*" 
 
 § 107. Conditions, and conditional sales. — Of conditions 
 affecting the sale and transfer both of personal and real 
 property, there are three kinds, namely: Conditions pre- 
 cedent, subsequent, and concurrent. If by the terms, or 
 true construction, of the contract, the property in the 
 subject of the sale dn pa not, vpst in the vendue until p er- 
 form ance of the c"r '^'^^^^""j ^* ^^ 1i c ondition precedent . If 
 
 78 Bishop, Cont. (2nd Bnl. Ed.), § 171; and see Id. § 169, et 
 seq.; Tiede. Sales, § 290, et seq.; Benj. Sales, p. 462, et seq.; 2 
 Sch. Pers. Prop. p. 643, et seq.; Cannan v. Bryce, 3 B. & Aid. 179, 
 183, 184;' White v. Buss, 3 Cush. 448, 460; Poplett v. Stockdale, 
 Ryan & M. N. P. 337; Bartlett v. Vinor, Carth. 251; Furgusson v. 
 Norman, 5 Bing. N. C. 76; Cook v. Phillips, 56 N. Y. 310; Hatha- 
 way V. Moran, 44 Me. 67; Carpenter v. Beer, Comb. 246; Stanley 
 V. Nelson, 28 Ala. 514; Hall v. Mullln, 5 Har. & J. 190, 193; Sykes 
 V. Beadon, 11 Ch. D. 170; Hotham v. East India Co., 1 Doug. 272, 
 277. 
 
 80 Montefiori v. Monteflori, "Wm. Bl. 363; Peck v. Burr, 10 N. Y. 
 294; Horton v. Bufflngton, 105 Mass. 399; Moore v. Murdock, 26 
 Cal. 514; Shuman v. Shuman, 27 Pa. St. 90; O'Donnell v. Sweeney, 
 5 Ala. 467; Tucker v. West, 29 Ark. 386; Finn v. Donahue, 36 
 Conn. 216; Ryno v. Darby, 20 N. J. Eq. 231. 
 
168 CONDITIONS, ETC [§' 107. 
 
 the condition be such that the effect of its nonperformance 
 will be to defeat or impair an estate or interest already 
 vested, it is a condition subsecjue nt. If, by the terms, or 
 true construction, of the contract, its executi o n rtr ^ftrfnrm- 
 ance by the parties simultaneously is required or intended, 
 the condition is termed mutu al or concu rrent, and under 
 such a condition neither party will be heard to complain of 
 its non-performance by the other, without performance, or 
 an offer of performance, on his own part. 
 
 A prmnisp, f^tatpmpnt., nv rpprpspntatinn made before, Or 
 at the time of the contract, is not necessarily a part of it 
 in contemplation of law, but may be merely an inducement, 
 or ^m jipthing c oll ateral, to the contract. If it be an in- 
 tegral and essential part of the contract, the question may 
 arise whether it is a dependent, or an independent, coven- 
 ant. If the former, it becomes in effect a condition preced- 
 ent, or concurrent, the performance of which must be made 
 or cendered by the covenantor before he can rightfully claim 
 performance by the other party to the contract. If the 
 latter, each party is bound to perform on his part without 
 regard to performance or non-performance of the other 
 party ; or, failing, he will be liable to an action for a breach 
 of contract; and non-performance by the other party will 
 entitle him to damages for the breach. 
 
 The distinctions between the several kinds of conditions 
 often present difficulties in construction, which have pro- 
 duced some confusion and conflict in the adjudications. 
 And, indeed, the whole subject of conditions is generally 
 regarded as "subtle and perplexing;" but the authorities 
 hereunder cited will, it is believed, furnish the intelligent 
 and discriminating student and practitioner with ample 
 means of mastering all the difficulties involved.** 
 
 siTIede. Sales, § 200, et seq.; Ben]. Sales, p. 507, et seq.; Am. 
 
§' 108.] WAERANTT. 169 
 
 § 108. Warranty. — A warranty in the sale of goods ia 
 a c ollateral undertaking, forming a part of the contrac t 
 by agreement of the partiea, ex pres s or implied, b ut in th e 
 absenc e of such afyT-eeme Tit, it is not, an essential elem ent 
 of the contract, for a sal ^ "lay ha pmnplptp -nHtlinnt. a war- 
 ranty . Antecedent representations made by the vendor 
 as an inducement to the buyer, but not entering into and 
 forming part of the contract, are not warranties. On the 
 other hand, a representation made during the negotiation 
 and before the conclusion of the bargain, may, by the ex- 
 press or implied agreement of the parties, enter into and 
 become a part of the contract, and a warranty.'* A war- 
 ranty given after the coTismmTnation of the sale, without 
 som e new consideration, is voi d.'' 
 
 There are express, and implied, warranties. An express 
 warranty is the direct statement of a material fact, either 
 past or existing. But no form of words is requisite to con- 
 stitute a warranty, a mere affirmation being sufficient when 
 it is so intended. For determining whether an affirmation 
 amounts to a warranty, this test has been given: "Did the 
 vendor assume to assert a fact of which the buyer was 
 
 n. p. 551, et seq.; 2 Sch. Pers. Prop. p. 273, et seq.; Hickman v. 
 Shimp, 109 Pa. St. 16; Redman v. >3Etna Ins. Co., 49 Wis. 438; 
 Fishback v. Van Dusen, 33 Minn. Ill, 116;Cadwell v. Elalte, 6 
 Gray, 402; Chapin v. School District, 35 N. H. 450; Sedden v. 
 Prindle, 17 Barb. 466; N. & N. W. R. R. Co. v. Jones, 2 Cold. 584; 
 Jones V. Barkley, 2 Doug. 684-691. 
 
 ezBenj. Sales, p. 563; Tlede. Sales, i 180; Foster v. Smith, 18 
 C. B. 156; Mondell v. Steele, 8 M. & W., 858; Hopkins v. Tanque- 
 ray, i5 C. B. 130; 23 L. J. C. P. 162; McFarland v. Newman, 9 
 Watts, 55. 
 
 83 Bryant v. Crosby, 40 Me. 9; James v. Bocage, 45 Ark. 284; 
 Bless V. Kittridge, 5 Vt. 28; Summers v. Vaughn, 35 Ind. 323; 
 Morehouse T. Comstock, 42 Wis. 624; Hogins v. Plympton, 11 
 Pick. 99. 
 
170 WAKEANTT. [§ 108. 
 
 ignorant, or merely give an opinion or judgment upon a 
 matter of which the buyer could aa well judge as the ven- 
 dor?" '* An implied warranty is one dedu ced by the law 
 when the execut i pTi nf tT)^ contract, and the evidenc_e i_iiis- 
 t,ifv _or demand - it. As a rule, the existence of an express 
 warranty excludes an implied one, but from the operation 
 of this rule are excepted cases where the former relates to 
 quality, and the latter to title, in which cases the co-exist- 
 ence of both in the same contract involves no inconsistency. 
 
 It is the well established doctrine in this country, that in 
 the sale by a vendor, as his own, of an article in his posses- 
 sion, there is an implied warranty of title, but otherwise 
 when the property is not in his possession at the time of 
 the sale.'* 
 
 As a general rule, there is no implied warranty of quality 
 in the sale of personal property, where the buyer has an 
 opportunity to inspect the goods and determine the quality 
 for himself. In the absence of fraud, and of an express 
 warranty, each of the parties relying upon his own judg- 
 ment, the maxim caveat emptor applies." But to the 
 general rule there are some exceptions. 
 
 8<Pasley v. Freeman, 3 T. R. 51; Cross v. Gardner, Carth. 90; 
 Medina v. Stoughton, 1 Ld. Raym. 593; Powell v. Barham, 4 A. & 
 E. 473; Hahn v. Doolittle, 18 Wis. 196; Marsh v. Webber, 13 Minn. 
 109; Tewksbury v. Bennett, 31 la. 83; GifEord v. Carvill, 29 Cal. 
 589; Miller v. Young, 33 111. 354. 
 
 86 Bishop, Cont. (2nd Enl. Ed.), § 243; 2 Kent, Com. p. 478; 
 Williamson v. Sammons, 34 Ala. 691; Linton v. Porter, 31 111. 107; 
 Chancellor v. Wiggins, 4 B. Monr. 201; Sherman v. Champlaia 
 Transp. Co., 31 Vt. 162; Fawcett v. Osborn, 32 111. 411; Word v. 
 Gavin, 1 Head, 506; Lackey v. Stouder, 2 Ind. 376; Scranton v. 
 Clark, 39 N. Y. 220; Huntington v. Hall, 36 Me. 501; Tiede. Sales, 
 § 185; Benj. Sales (Ed. 1888), p. 564, et seq.; Am. n. p. 614, et seq. 
 
 88 Tiede. Sales, § 187; Benj. Sales, p. 644, et seq.; Bishop, Cont. 
 (2nd Enl. Ed.), § 244; 2 Kent, Com. p. 478, et seq.; 2 Sch. Pers. 
 Prop. p. 353. 
 
§ 108.] WAERANTT. 171 
 
 1. Sales by sample. — In a sale by sample, intended by 
 the parties as such, there is an implied warranty that the 
 bulk of the goods shall be of equal quality to the sample.'^ 
 
 2. Sales hy description. — ^Where the buyer has no oppor- 
 tunity to inspect the goods, either in bulk or sample, and 
 the vendor's description is positive, definite and exact, 
 there is an implied warranty that the goods will answer the 
 description, both in kind and quality.'* 
 
 3. Merchantability; fitness for a particular use. — In a 
 sale by a manufacturer, there is an implied warranty that 
 the goods are joerchantable., s uch as are free from serious 
 defects, and will command the ordinary market price. 
 And where goods are bought for a particular purpose or 
 use, known to the vendor, and are selected by him, the 
 buyer not relying on his own judgment, there is an implied 
 warranty that the articles shall be fit for such purpose or 
 use. But an express warranty of quality by a manufacturer 
 will exclude an implied warranty of merchantability." 
 
 4. Sales of provisions. — In the United States it is held, 
 that in a sale of provisions for immediate domestic con- 
 sumption, there is an implied warranty that the articles 
 
 87 Merriman v. Chapman, 32 Conn. 146; Webster v. Granger, 78 
 111. 230; Gill V. Kauffman, 16 Kan. 571; Gunther v. Atwell, 19 Md. 
 157; Gallagher v. Waring, 9 Wend. 20; Barnard v. Kellogg, 10 
 Wall. 383; Leonard v. Fowler, 44 N. Y. 289. 
 
 88 Hastings v. Loverlng, 2 Pick. 215; Hogins v. Plympton, 11 
 Pick. 97; Behn v. Bumess, 3 Best & Smith, 751; Wolcott v. Mount, 
 36 N. J. L. 262; Maxwell v. Lee, 27 N. W. Rep. 196. 
 
 89 Howard v. Hoey, 23 Wend. 350; Gallagher v. Waring, 9 Wend. 
 20, 28; Merriam v. Field, 24 Wis. 640; McChlng v. Kelley, 21 Iowa, 
 508; Mesner v. Granger, 4 Gilm. 69; CuUen v. Bimm, 37 Ohio St. 
 236; Wilcox v. Hall, 53 Ga. 635; Brantley v. Thomas, 22 Tex. 270; 
 Deeming v. Foster, 42 N. H. 165; Walker v. Pue, 57 Md. 155; Port 
 Carbon Iron Co. v. Groves, 68 Pa. St. 149; Tllton Safe Co. v. Tls- 
 dale, 48 Vt. 83; De Witt v. Berry, 134 U. S. 306. 
 
172 PEEFOKMANCE OP OONTBACT. [§ 109. 
 
 are so und, wholesome- anti fit, for food.° ° But as between 
 dealers where provisions are sold as merchandise and not 
 for immediate consumption by the purchaser, there is no 
 implied warranty of fitness for use.*' 
 
 5. Sale of commercial paper. — In the sale of com mercial 
 paper there is an implied warranty by the vendor that the 
 c,;p>notny^c. o^^ ^^r^-,-.i-r, ^ auj thc slgucrs competent to con- 
 tT-gfft^ hi^l tho waTT-gnty (Joes uot cxtcua to tlie pecuuiary 
 responsibility or solvency of the signers.*^ 
 
 It may be regarded as an established doctrine, that an 
 express general warranty does not cover patent defects. 
 Where such defects exist the buyer must exact a special 
 warranty against them, or submit to* the application of the 
 rule, caveat emptor.'^ 
 
 § 109. Delivery in performance of the contract. — ^Deliv- 
 ery as related to the transfer of title has already been con- 
 sidered,"* and it remains to notice briefly the rules govern- 
 ing delivery of possession in performance of the execu- 
 tory contract of sale. When the contract is complete, 
 and the buyer has complied, or is ready to comply, with the 
 conditions precedent or concurrent, it becomes the im- 
 mediate duty of the vendor to deliver possession of the 
 
 80 Morehouse v. Comstock, 42 Wis. 626; Hoover v. Peters, 13 
 Mich. 51; Van Bracklln v. Fonda, 12 Johns. 468; Devine v. 
 McCormick, 50 Barb. 116; Fairbanks Canning Co. v. Metzgar, 118 
 N. -Y. 267. 
 
 «i Moses v. Meed, 5 Denio, 617; 1 Denio, 378; Howard v. Emer- 
 son, 110 Mass. 321; Ryder v. Neitge, 21 Minn. 70; Humphreys v. 
 Comllne, 8 Blatehf. 516; Lukens v. Freiund, 27 Kan. 664; Glroux 
 V. Stedman, 145 Mass. 439. 
 
 82 Benj. Sales, Am. n. pp. 620, 621; 1 Dan. Neg. Inst. § 670. 
 
 ssTiede. Sales, § 195; Benj. Sales, pp. 567-569. 
 
 »* Supra, § 102. 
 
§ 109.] PERFORMANCE OF CONTRACT. 173 
 
 goods in the performance of the contract, in the absence of 
 stipulations to the contrary. 
 
 1. How, and where, delivery to he made. — In the absence 
 of an express agreement in respect to delivery, the vendor 
 is Tinder no obligation to transport the goods to the pur- 
 chaser. He is only required to hold the goods ready for 
 delivery to the buyer, or his order, on demand. And if the 
 vendee fails to call for the goods, and they remain in the 
 possession of the vendor, he may recover the price in an 
 action for goods bargained and sold."" When the parties 
 have not agreed upon a place of delivery, the goods must ' 
 be held ready for delivery at the place where they were 
 at the time of sale. Should the vendor attempt to deliver 
 them elsewhere he would incur all the attendant risk, and 
 be liable to the vendee for the increased expense, if any, 
 arising from such unauthorized delivery.'* 
 
 Obviously, if a place of delivery be designated by the 
 parties, or either of them thereto authorized by the con- 
 tract, it cannot rightfully be made elsewhere, without the 
 consent of all the parties. If the buyer is to designate the 
 place, and he neglects to do so within a reasonable time, 
 it will excuse the vendor from making delivery, and enable 
 him to maintain an action for the purchase price while the 
 goods remain in his possession."' If the vendor is to select 
 the place of delivery, it becomes his duty to give the vendee 
 
 9B Kohl V. Llndley, 39 III. 195; Morse r. Sherman, 106 Mass. 430, 
 432; "Wade V. Moffit, 21 111. 110; 74 Am. Dec. 79; Frazler v. Sim- 
 mons, 139 Mass. 531, 535; Turner v. Langdon, 112 Mass. 265; 
 Stearns v. Washburn, 7 Gray, 187; Allingham v. O'Mahoney, 1 
 Pugsl. 326. 
 
 »»Rice V. Churchill, 2 Den. 145; Brownson v. Gleason, 7 Barb. 
 472; Middlesex Co. v. Osgood, 4 Gray, 429; Barr v. Ayers, 3 Watts 
 & S., 299; Kraft v. Hurtz, 11 Mo. 109; Miles v. Roberts, 34 N. I-I. 
 253; 2 Sch. Pers. Prop. p. 400. 
 
 97 Hunter v. Westell, 84 N. T. 594, 38 Am. Rep. 544 ; Smith v. 
 
174 PERFORMANCE OF CONTRACT. [§' 109. 
 
 reasonable notice in advance of the place selected, so that 
 delivery there will transfer the possession of the goods to 
 the latter.'' 
 
 2. Delivery to a common carrier. — ^Where the contract 
 binds the vendor to send the goods to the purchaser, de- 
 livery to a common carrier is a compliance, it being in con- 
 templation of law a delivery to the purchaser himself. 
 The carrier, in such cases, is the bailee of the purchaser, or 
 consignee." But where the contract requires the seller to 
 make the conmion carrier his own agent, or he does so 
 voluntarily, transfer of possession and risk from the ven- 
 dor to the vendee will not take place, until the goods have 
 been actually delivered by the carrier to the vendee or his 
 agent.* ^ 
 
 3. Quantity to 6e delivered. — A contract for a specific 
 quantity will not be satisfied by a tender or delivery of 
 more or less ; or by sending the goods bargained for mixed 
 with other goods, thus compelling the buyer to select and 
 separate for himself. In either case the purchaser may 
 rightfully refuse to accept the whole.* 
 
 4. Time of delivery. — In the absence of a stipulated time 
 for delivery, the law prescribes a reasonable time. "WJat 
 is a reasonable time becomes a question of fact for the i nrv. 
 to be deter mined by_ _t.hfi circnTns tances of each case ." 
 "Where the contract expresses the time of delivery, the 
 
 Wheeler, 5 Gray, 309; Boyd v. Gunnison, 14 W. Va. 1; Brunshill 
 v. Muir, 15 Up. Can. Q. B. 213; Bolton v. Riddle, 35 Mich. 13. 
 
 B8 Rogers v. Van Hoesen, 12 Johns. 221; Davies v. McLean, 21 
 W. R. 264, 28 L. T. (N. S.), 113. 
 
 »9 Tlede. Sales, § 95; Benj. Sales, pp. 146, 647. 
 
 1 Citations last supra; and see Dunlop v. Lambert, 6 Clark & F. 
 600; Perkins v. Bckert, 55 Cal. 400; Hall v. Gaylor, 37 Conn. 550. 
 
 2 Benj. Sales, p. 642, et seq.; Tlede. Sales, § 101. 
 
 » 2 Sch. Pers. Prop. p. 401, et seq.; Tlede. Sales, §§ 98-100; Ter- 
 williger v. Knapp, 2 B. D. Sm. 86. 
 
§' 109.] PEEPOBMANCE OF CONTBACT. 175 
 
 question involved is one of construction, and hence a ques- 
 tion of law for the court, and not of fact for the jury.* 
 
 5. Actual, constructive, and symbolical delivery. — An 
 actual delivery is the "man ual or bodily transfer of pos - 
 s ession. ' ' Constru ctive delivery is the intentional transfer 
 o f title and possession in place of actual, bv agreement o f 
 t he parties, or where actual delivery is impossible. As 
 examples of constructive delivery may be mentioned cases 
 where the goods are in the actual possession of the vendee 
 at the time of the sale; where it is the intention of the 
 parties that the goods shall remain in the possession of the 
 vendor as bailee after the sale; where the goods are in 
 possession of a warehouseman, or other third party, at the 
 time of the sale, and he thereafter holds them as bailee of 
 the purchaser; where the goods are at sea, or otherwise 
 beyond the power of the vendor to make actual delivery; 
 where the goods are too ponderous for possible or conven- 
 ient actual delivery; and where the subject of the sale is 
 growing crops, not ripe for actual delivery. Sjonbolica l 
 deli very is the actual delivery of something as the rep re- 
 senta tive or symbol of the property sold, as the key of t he 
 
 T»raToVimigo _y|lPTO tht^ ^nnt^c ira gtn rpt^ ; the bill of Rale of a 
 
 vessel and cargo at sea; and, indeed, in all cases of impos- 
 sible or impracticable delivery." 
 
 6. Acceptance. — Accept ance is thf pAmpioTnont nt Aa- 
 livery, both being essential to a full performan np nf tb*^ 
 c ontrac t. TEis subject was discussed under the require- 
 ments of the Statute of Frauds,* and requires but brief 
 
 «Beiij. Sales, p. 638; Atwood v. Clark, 2 Me. 249; Cameron v. 
 Wells, 30 Vt. 633. 
 
 oTiede. Sales, §§ 104, 105; Benj. Sales, p. 648; 2 Kent, Com. 
 p. 500; 1 Pars. Cont (7 Ed.), p. 531; 2 Sch. Pers. Prop. p. 408, 
 et seq. 
 
 » Supra, S 102, sub. 6. 
 
176 STOPPAGE IN TRANSITU. [§ 111. 
 
 additional reference here. The buyer has a reasonable 
 time after the receipt of goods to inspect, accept or reject 
 them.' An objection to goods for one reason may be a 
 waiver of any other reasons.' 
 
 § 110. The vendor's lien. — ^A lien is a "rip;bt to InnW 
 goods, the property of another, in security for some debt , 
 dut y, or other obligati on." * , The vendor of personal prop- 
 erty, still in his possession, has a lien upon it as security 
 for the purchase price.^" But this lien may be waived or 
 lost, either expressly or by implication. A sale on credit is 
 a waiver. The receipt of other security for the payment of 
 the purchase price is a waiver by implication. Delivery of 
 the goods is a waiver. A legal tender of payment by the 
 vendee discarges the lien. And, in short, any agreement, 
 or dealing with the goods, inconsistent with the retention 
 of the lien, will operate as a waiver.^^ 
 
 § 111. Stoppage in transitu. — ^Where the vendor has 
 parted With the possession of goods sold before payment 
 of the purchase price, and placed them in the hands of 
 a carrier, or other middleman, for delivery to the buyer, if 
 while the goods are in transitu he discovers that the vendee 
 has become insolvent since the sale, or, unbeknown to him, 
 was insolvent at the time of the sale, he may retake and 
 
 » 
 
 TTlede. Sales, ch. IX; BenJ. Sales, pp. 662-667; Pierson v. 
 Crooks, 115 N. Y. 539. 
 
 8 Johnson v. Oppenheim, 55 N. Y. 291; Smith v. Pettee, 70 N. Y. 
 13. 
 
 » Arnold v. Delano, 4 Cush. 33, 38. 
 
 I'Tlede. Sales, § 119; Benj. Sales, p. 750, et seq.; Am. n. p. 773, 
 et seq.; 1 Sch. Pers. Prop. 482, et seq.; 2 Id. p. 579, et seq.; Bouv. 
 L. Diet "Lien;" And. L. Diet. "Lien." 
 
 "Tlede. Sales, §§ 120-122; Benj. Sales, p. 751, et seq.; Am. n. 
 p. 774. . ~ 
 
§ 111.] STOPPAGE IN TRANSITU. 177 
 
 hold the goods as security for the price.^* "This is a 
 right," it is well said, "which arises solely upon the insol- 
 vency of the buyer, and is based on the plain reason of 
 justice and equity that one man's goods shall not he ap- 
 plied to the payment of another man's debt." *° 
 
 "While the right of stoppage in transitu, and the vendor's 
 lien, are nearly related in spirit and purpose, there is a 
 distinction between them which is not always observed, 
 leading to some confusion and apparent conflict in the 
 cases. We have seen ^* that the vendor of personal 'prop- 
 erty, stiU in his possession, has a lien upon it as security 
 for the price, but that in a sale on credit no lien attaches 
 or, as it is sometimes expressed, the lien is waived by im- 
 plication. The right of stoppage in transitu, on the con- 
 trary, is not affected by the credit, and may be exercised 
 before payment falls due.^" 
 
 The theory or principle on which the right of stoppage 
 in transitu depends, and the effect of its exercise, have 
 given rise t® csnsiderable discussion, and some difference 
 »f »pini«n. On one theory, there is a constructive posses- 
 sion in the seller for the purpose of a lien, which is en- 
 forced by the stoppage; on another, the vendor has a right 
 to rescind the contract in ease of insolvency, which right 
 may be exercised by stoppage in transitu. The lien theory 
 is favored by the weight of American authority, which 
 
 i2Benj. Sales, p. 778, et seq.; Am. n. p. 817, et seq.; Tiede. 
 Sales, § 125, et seq.; 2 Sch. Pers. Prop. p. 586, et seq.; 2 Kent, 
 Com. p. 540, et seq.; Gibson v. Carruthers, 8 M. & W. 337. 
 
 IS D'Aquila v. Lambert, 2 Eden, at p. 77; Amb. 399. 
 
 li Supra, § 110. 
 
 i« Stubbs V. Liind, 7 Mass. 453, 456; Clapp v. Peck, 55 la. 270; 
 Clapp V. Sohmer, 55 la. 273; Babcock v. Bonnell, 80 N. Y. 244, 
 249; Bell v. Moss, 5 Wheat, 189; Atkins v. Colby, 20 N. H. 154; 
 Newhall v. Vargas, 13 Me. 193. 
 12 
 
178 STOPPAGE IN TEANSITU. [§ 111. 
 
 seems to establish the doctrine that the exercise of the right 
 of stoppage does not operate as a rescission of the contract 
 of sale; and that the vendee is afterwards entitled to the 
 possession of the goods on payment or tender of the pur- 
 chase price, even though the goods may have greatly ap- 
 preciated in value.^® In New York it has been held that 
 the vendor, after stopping the goods for insolvency of the 
 fcuyer, may sell the goods and give good title to a buyer, so 
 that he may maintain replevin against an of&cer attaching 
 them as goods of the vendee." 
 
 Chief J. Shaw, in Arnold v. Delano,^^ speaking of the 
 waiver of vendor's lien by the giving of credit, says: "But 
 the law in holding that a vendor, who has thus given credit 
 for goods, waives his lien for the price, does so on one im- 
 plied pnr\i^Wnr^ wTi^pJi i«^ that t.hfl venflpft shall Tr eep ]\ }S 
 
 c redit go od. If, therefore, before payment, the vendee 
 become bankrupt or insolvent, and the vendor still retai ns 
 the cus todv of the good s, or an y part of them , or if th e 
 goods_a re in the h ands of a carrier, or mid ^^^Ttianj fu thflir 
 way ^:n til ft VPTLCJPP,^ anri havp not yet got into his actual 
 possession, and the vendor, before they do, can regain his 
 actual possession, by a stoppage in transitu, then his lien is 
 restored and he may hold the goods as security for the 
 price." 
 
 The right of stoppage, being considered just and equit- 
 
 i« Babcock v. Bonnell, 80 N. Y. 244, 250, 251; Jordan v. James, 5 
 Ohio, 88; Rowley v. BIgelow, 12 Pick. 312; Patten's Appeal, 45 Pa. 
 St. 151; Kemp v. Falk, 7 App. Cas. 573, 581; Newhall v. Vargas, 
 13 Me. 93; Rogers v. Thomas, 20 Conn. 53; Rucker v. Donovan, 13 
 Kan. 251; Stanton v. Eager, 10 Pick. 475; Wart v. Scott, 6 Grant. 
 (Ont.) 154; Grout v. Hill, 4 Gray, 361; Chandler v. Fuller, 10 Tex. 
 2; McBlroy v. Seerey, 61 Md. 389, 48 Am. Rep. 110. 
 
 II Tuthill V. Skldmore, 124 N. Y. 148. 
 
 18 4 Cush. 33, 38-41. 
 
§ 112.] PAYMENT AND TENDEB. 179 
 
 able, is extended to others than vendors, to persons occupy- 
 ing a similar position, quasi vendors. For examples, a 
 factor or commission merchant, who buys for the con- 
 signee;^' to one who pays the price for the vendee, and 
 takes the bill of lading in his own name, or has it assigned 
 to him ; "'^ and the vendor of an interest in an executory 
 agreement.*^ 
 
 "When does the transit begin, and when does it end? 
 Answering generally, i t begins when the vendor parts wit h 
 th e possession fully , s o that his right of lien is gone, an d 
 end s when the goods reach the actual possession of the ve n- 
 dee, or his authorized age nt. The statement often found 
 in the books that the transit terminates when the goods 
 reach their ultimate destination is liable to mislead, and is 
 not accurate if the expression "ultimate destination" be 
 used in the sense of locality, and not the actual possession 
 of the vendee. The goods may have reached the place of 
 consignment, and still be ip transit to the vendee while i n 
 the hand s of a wharfinger, warehouseman, cartman, o r 
 other middleman . If at the end of the route, possession 
 i s given to the vendee's agent or warehouseman, although 
 the goods _are not actua lly dftlivp rfid trt tho vfindfift, tba right 
 i s lost. ^" 
 
 § 112. Payment and tender. — On compliance with the 
 contract of sale by the vendor, he is entitled to payment 
 
 19 Newhall v. Vargas, 13 Me. 93 ; Seymour v. Newton, 105 Mass. 
 275; Ilsley v. Stubbs, 9 Mass. 65, 71; Ex parte Miles, 15 Q. B. Div. 
 39. 
 
 aoMuUer v. Poudlr, 55 N. Y. 325, 337; Gossler v. Sohepeler, 5 
 Daly, 476. 
 
 21 Jenkyns v. Osbome, 7 M. & G. 678, 698; 8 Scott, N. R. 505. 
 
 22Tiede. Sales, §§ 129-133; Benj. Sales, p. 784, et seq.; Am. n. 
 pp. 820-825; 2 Sch. Pers. Prop. p. 590, et seq.; Harris v. Pratt, 17 
 N. Y. 249; Seymour t. Newton, 105 Mass. 275; Brooke Iron Co. 
 V. O'Brien, 135 Mass. 442. 
 
180 PAYMENT AND TENDER. [§ 112. 
 
 accor ding to its terms, exprsss or iTuplip fl. Where no stipu- 
 lat ion is made by the parties in regard to the mode, or time. 
 of ^payment, an immediate and a-hsnlnt^ payment in cas h 
 is implied b y_Iaw. and obligatory upon the yende e. But 
 the contract may provide for other kinds of payment, or a 
 credit may be given for a stipulated time. When payment 
 becomes due, the debtor cannot safely wait for demand to 
 be made, but must seek' the vendor or his authorized agent, 
 and make, or tender payment.''* 
 
 Other than money payments: 
 
 1. Payment by note or bill. — A payment by bill or note 
 may b e absolute or conditional . It is generally held that 
 the debtor's own note or biU given in liquidation of his 
 debt, is a conditional navment. and will not effect an abso- 
 lute discharge of the debt until itself is paid, unless it be 
 taken by agreement of the parties as an absolute payment. 
 The indebtedness of the buyer in itself gives the vendor an 
 implied promise of -payment, and a promissory note only 
 supplements the implied, unwritten, with an express, writ- 
 ten, promise. It does hot increase the obligation of the 
 buyer, or add to the security of the vendor, but the latter 
 is at liberty to accept the written promise as an absolute 
 payment and discharge of the debt, if he will. The trans- 
 fer to the vendor by the purchaser of a note or biU of a 
 third part y is in som e cas es an absolute, and in oth ers only 
 a conditional, payment. If payable to bearer, a nd trans- 
 f erre d at the time of the sale without indorsement, it is 
 v rima facie an absol ute payment; but if payable to order 
 and transferred by indorsement, it wiU operate only as 
 conditional payment unless otherwise agreed by the parties. 
 In some of the states, th e transfer of a negotiable bill o r 
 note by a debtor to his creditqr for a precedent simple 
 
 23 2 Sch. Pers. Prop. p. 425; Benj. Sales, pp. 669, 670. 
 
§ 112.] PAYMENT AND TENDER. 181 
 
 co ntract debt, is deemed, prima facie,, an absolute payment 
 or discharge of tbe debt, but in a majority of the states 
 such a transfer is held to be only a conditional pajrment in 
 the absence of proof of a differ^t agreement by the par- 
 ties." 
 
 As a rule, the acceptance of a bill or note conditionally 
 in payment of a debt, su spends the right of action on the 
 original , debt until maturity of the paper. '" On maturity 
 the right of action revives, and it is then optional with 
 the creditor to bring his action on the paper, or on the 
 original debt.'" Should he elect the latter alternative, he 
 must produce in court and surrender the paper, or so ac- 
 count for its absence as to show that the debtor will be 
 free from liability upon it to a third party.''' 
 
 If the debtor becomes liable on the bill or note as a 
 drawer or indorser, failure of the holder to exercise due 
 diligence in presenting the same for payment, and giving 
 notice of dishonor, will, it is generally held, discharge the 
 debtor both from his liability on the dishonored paper, and 
 on the original debt, where such negligence results in loss.'" 
 
 2*Tlede. Sales, § 144; Benj. Sales, Am. n. pp. 699, 700, where 
 the decisions in the several states on this point are collated. 
 
 25 Stedman v. Gooch, 1 Esp. 3; Griffith v. Cowen, 13 M. & W. 58; 
 Black V. Zacharie, 8 How. 4833; Putnam v. Lewis, 8 Johns, 389; 
 Price V. Price, 16 M. & W. 231; Armstead v. Ward, 2 Pat. & H. 
 504; Phoenix Ins. Co. v. Allen, 11 Mich. 501. 
 
 28 Bank of Ohio Valley v. Lockwood, 13 W. Va. 426; Owenson v. 
 Morse, 7 T. R. 50; Steadman v. Gooch, 1 Esp. 4; Price v. Price, 
 16 M. & W. 231; Tobey v. Barber, 5 Johns. 68. 
 
 2T Jones V. Savage, 6 Wend. 658; Dayton v. Trull, 23 Wend. 345; 
 Raymond v. Merchant, 3 Cow. 147, 150; Alcock v. Hopkins, 6 
 Cush. 484; Miller v. Lumsden, 16 111. 161; Matthews v. Dare, 20 
 Md. 248. 
 
 28 Smith V. Miller, 43 N. Y. 171, 52 N. Y. 546; Betterton v. 
 Roope, 3 Lee (Tenn.), 220; Phcenlx Ins. Co. v. Allen, 11 Mich. 
 
182 PAYMENT AND TENDER. [§ 112. 
 
 2. Payment iy check or draft. — The authorities are not 
 etitirely agreed upon the effect of payment by check or 
 draft. Some hold that the buyer's negotiable check is 
 prima facie payment, conditionally, and if the drawer has 
 no funds in the drawee's hands to meet the check, or draws 
 them out before the holder has a reasonable time to present 
 the check, it will not operate as a payment, and the cred- 
 itor may resort to his original cause of action.^' But if, at 
 the time of giving the check, the drawer has sufficient funds 
 in the hands of the drawee, and the payee neglects for an 
 unreasonable time to present the check, and the drawee in 
 the meantime fails, the loss falls upon the creditor. He 
 becomes the victim of his own negligence, and cannot main- 
 tain an action on the original indebtedness." Other cases 
 hold that the creditor may recover on the original cause of 
 action, unless the debtor shows that the check has been paid, 
 or that a loss has resulted from an unreasonable delay of 
 the creditor in presenting the check for payment.'^ 
 
 3. Payment in counterfeit, or worthless hills. — Counter- 
 feit or forged bills, bank notes, or personal notes, given in 
 payment, do not constitute payment, or discharge the debt. 
 The creditor in such case,, gets no value, no quid pro quo. 
 Some cases hold that the receiver of counterfeit or forged 
 paper is bound to use due diligence in ascertaining its 
 
 501; Mehlbery v. Fisher, 24 Wis. 607; Allan v. Eldred, 50 Wis. 
 136; Dayton v. Trull, 23 Wend. 345. 
 
 2» Broughton v. Sllloway, 114 Mass. 71. 
 
 soCushman v. Llbbey, 15 Gray, 358; Taylor t. Wilson, 11 Met. 
 44; Hodgson v. Barrett, 33 Ohio St. 63; Barnard v. Graves, 16 
 Pick. 41; Warriner v. The People, 74 111. 346; Mclntyre v. Ken- 
 nedy, 29 Pa. St. 448. 
 
 31 Bradford v. Fox, 38 N. Y. 289; Smith v. Miller, 43 N. Y. 171; 
 Thompson v. The Bank of British N. A., 82 N. Y. 1; Kerneyer v. 
 Newbt, 14 Kan. 164; Phillips v. Bullard, 58 Ga. 256; DeGampart 
 V. Brown, 28 Ark. 166. 
 
§ 112.] PAYMENT AND TENDER. 183 
 
 character, and to promptly return the same, or notify the 
 other party of its character, and that failing in this regard, 
 its receipt by him will be deemed a valid payment. The 
 necessity or utility of returning an utterly worthless piece 
 of paper, or of notifying the other party of its character, 
 is not obvious on first thought, but in some cases, an early 
 notice might enable an innocent party to obtain redress 
 from prior parties.*^ 
 
 4. Payment in specific articles. — ^By agreement of the 
 parties, the price may be payable in specific articles. It 
 is only necessary to say, that when so payable, the articles 
 must be delivered in accordance with the terms of the con- 
 tract, and in default thereof the price becomes payable in 
 cash.*' 
 
 5. Payment hy mail. — ^Where the creditor authorizes or 
 requests payment by mail, or other specific mode, he there- 
 by appoints his own agency for the transmission of the 
 funds, and assumes all the risk attendant upon such mode 
 of . remittance. The obligation of the debtor wiU be fully 
 discharged by sending the money as authorized or re- 
 quested, even although it may never reach the creditor.'^ 
 But money sent by mail without authority of the creditor, 
 or the sanction of any general usage or custom, is at the 
 risk of the debtor, and if not received by the creditor, the 
 debt remains uncanceled.*" It has been held, however, that 
 
 32 Benj. Sales, Am. n. pp. 697, 698, and cases cited; Tlede. Sales, 
 § 149; 2 Pars. Cont. (7 Ed.), p. 622. 
 
 »8 Perry v. Smith, 22 Vt. 301; Roberts v. Beatty, 2 Pen. & Watts, 
 63; Churcli v. Feterow, 2 Pen. & Watts, 301; Stone v. Nichols, 43 
 Mich. 16. 
 
 34Gurney v. Howe, 9 Gray, 404; Morgan v. Richardson, 13 Al- 
 len, 410; Palmer v. Phoenix Mut. Ins. Co., 84 N. Y. 63; Townsend 
 V. Henry, 9 Rich. L. 318. 
 
 35 Crane v. Pratt, 12 Gray, 348; First Nat. Bank v. McManlgle, 
 
184 PAYMENT AND TENDER. [§ 112. 
 
 depositing the money in the postoffice, in an envelope prop- 
 erly addressed to the creditor at his place of business, la 
 prima facie evidence that he received it." 
 
 6. Appropriation of payments. — Questions in regard to 
 the appropriation of payments arise where several debts 
 are due from one person to another, and a payment is made 
 v^hich is insufficient to satisfy all. The general rules gov- 
 erning such cases may be briefly summarized. 
 
 (a) The debtor, at the time of payment, has the right to 
 designate the claim to which it shall apply. This done, 
 and the appropriation so made by the creditor, it cannot 
 afterwards be changed by the debtor, and will not be 
 changed for him by the law. 
 
 (b) If the debtor fails to make the application where he 
 has the opportunity of so doing, the creditor may apply 
 the payment to any one of several legal claims at his option. 
 He may apply it to a claim barred by the statute of limita- 
 tions, but such appropriation will not revive the balance of 
 the debt, if any ; to a debt against the payer and others ; to 
 an unsecured debt in preference to one secured; an d to a 
 debt not enforceable b y reaso n of_lhe-Statuts_xif_Erajids. 
 But he is noLa t liberty to apply it to an illeg al claim; nor 
 to a debt absolutely void for usury; nor to a debt__n ot ye t 
 due. ii3here-be ^ sufficient indebtedness^ua- to absorb t he 
 pajmgnt. 
 
 (c) If neither debtor nor creditor make the application, 
 the law will apply the payment as justice and equity re- 
 quire, and in accordance with the probable intention of the 
 parties.'' 
 
 69 Pa. St. 156; Buell v. Chapin, 99 Mass. 596; "Williams v. Car- 
 penter, 36 Ala. 9; Holland v. Lyns, 56 Ga. 56. 
 
 S8 Huntley v. Whittier, 105 Mass. 391; Waydell v. Velie, 1 
 Bradf. 277. 
 
 37Benj. Sales, Am. note, pp. 704, 705; Tiede. Sales, § 152; 2 
 
§ 112.] PAYMENT AND TENDER. 185 
 
 7. Payment on Sunday, — ^A p ayment made an d received 
 on Sunday, if retained by the creditor, will discharge the 
 debt.'* But such payment is not as effectual for all pur- 
 poses as a payment on a week day. Fo r example, a partia l 
 pa yment on Sunday will not revive a debt ba rrpd h y th e 
 Sta tute of Limitatio ns."' 
 
 8. Tender. — ^While nothing but payment, or its equiva- 
 lent accepted by the vendor, will discharge the buyer's in- 
 debtednes for the price, a valid tender will relieve him from 
 liability for costs, and for subsequently accruing interest. 
 The requirements of such a tender are : 
 
 First. — It must be made in gold or silver coin, or United 
 States treasury notes. But if the tender be made of bank 
 notes which commonly pass current as money, and no ob- 
 jection be made by the vendor to the money tendered, it 
 will be sufficient. 
 
 Second. — The full amount due must be tendered; a 
 tender of a part, if refused by the vendor, will not suffice. 
 An exception to this rule, however, occurs where the ven- 
 dor alone knows the exact amount due, and declines to 
 inform the buyer, in which case the latter may tender a 
 reasonable sum in payment, and an inconsiderable de- 
 ficiency will not render it invalid. 
 
 Third. — As a rule, the money must be actually produced 
 and offered to the vendor or his authorized agent, in such a 
 manner that the person to whom the tender is made may 
 
 Whart. Cont. §§ 923-934; 2 Pars. Cont. (7 Ed.), p. 630, et seq.; 
 1 Am. Lead'g Cas. 268. 
 
 38 Johnson v. Willis, 7 Gray, 164 ; Lamore v. Frisble, 42 Mich. 
 186. 
 
 89 Walnnaman v. Keinman, 1 Exch. 118; Clapp v. Hale, 112 
 Mass. 368; Bumgardner v. Taylor, 28 Ala. 687; Dennis v. Shar- 
 man, 31 Ga. 607. But see Thomas v. Hunter, 29 Md. 412; and 
 Ayres v. Bane, 39 Iowa, 518, differing as to admission of debt by 
 a Sunday payment. 
 
186 raSMEDIES OF THE VENDOR. [§ 113. 
 
 have an opportunity to examine and count it for himself. 
 But its production may be waived by the person to whom 
 the tender is made, or rendered impracticable by his refusal 
 to examine or accept it; and in such case if the buyer, or 
 his authorized agent, has the right amount of legal tender 
 present, and offers to produce it for examination and ac- 
 ceptance, the tender will be sufficient and legAl. 
 
 Fourth. — The tender must be unconditional. It is a well 
 settled rule that a tender with conditions imposed, as that 
 the debtor shall receive a release or a receipt in full, or the 
 like, is not good. But it has been held that where a statute 
 makes it obligatory upon the debtor to give a release, it 
 may properly be demanded where the tender is made,*" and 
 a note may be demanded as the condition of a tender of its 
 payment. 
 
 Fifth. — The tender must be kept good. If it be properly 
 made, and acceptance be refused, the debtor must there- 
 after have the money in readiness for the creditor on his 
 demand, otherwise the original tender would be insufficient. 
 And if suit be subsequently brought upon the claim for 
 which the tender was made, the money must be brought 
 into court for the use of the plaintiff.*^ 
 
 § 113. Remedies of the vendor. — ^A vendor of personal 
 property has several remedies for securing the purchase 
 price, or for breach of the contract, each adapted to cir- 
 cumstances. 
 
 1. Vendor's lien. — As we have seen, he may have a lien 
 
 <o Saunders /. Frost, S Pick. 270; Balme v. Wambaugh, 16 
 Minn. 116. 
 
 *iTiede. Sales, § 140; Benj. Sales, Am. note, pp. 706-708; 2 
 Pars. Cont. pp. 637, et seq., and 647, et seq.; 2 Sch. Pers. Prop, 
 pp. 428-432; Bouv. L. Diet. "Tender," And. L. Diet. "Tender;" 
 Eddy V. Davis, 116 N. Y. 247; Beckert v. Boon, 61 N. Y. 317. 
 
§ 113.] EEMEDIES OF THE VENDOR. 187 
 
 for the purchase price upon goods sold, while they remain 
 in his possession. It is only, however, whe re the proper ty 
 in t he goods has pass ed to tht ^. vendee that, his lip n nttanhpg 
 for, ohviously, one cannot have a lien on his own prop- 
 erty.*^ The lien, it should be noted, is only good as secur- ■ 
 ity for the unpaid price, and wiU not hold for any other 
 claim, whether one growing out of the same transaction, 
 or otherwise.*' 
 
 2. Be-sale. — ^The vendor may re-sell the goods in the case 
 of non-acceptance by the vendee, and hold the latter liable 
 for any difference between the contract price and the sum 
 realized on the re-sale. This right may be exercised within 
 a reasonable time after the buyer's default. The vendor 
 should notify the buyer that he will sell the goods for the 
 account of the buyer, and hold the latter liable for the dif- 
 ference between the contract price and the re-sale price; 
 and, while not absolutely essential to the right of re-sale, 
 it is prudent for the vendor to give notice to the buyer of 
 the time and place of the intended sale, thus forestalling 
 a charge of unfairness in the transaction.** Where the 
 
 ii Supra, § HO. And see Tiede. Sales, 119; Benj. Sales, p. 720, 
 Am. n. p. 773; 2 Sch. Pers. Prop. p. 556, et seq.; Clark v. Dra- 
 per, 19 N. H. 419; Arnold v. Delano, 7 Cush. 33; Bowen v. Burk, 
 13 Pa. St. 146; Carlisle v. Kinney, 66 Barb. 363; Bradley v. Mi- 
 chael, 1 Ind. 551. 
 
 « Crommelin v. N. T. & Harlem R. R. Co., 4 Keyes, 90; Somes 
 V. British Empire Shipping Co., 1 E. B. & B. 367; L. J. Q. B. 220; 
 8 H. L. C. 338; 30 L. J. Q. B. 221. 
 
 4* Tiede. Sales, § 334; Benj. Sales, p. 737, et seq., Am. n. p. 747; 
 Lewis V. Greider, 49 Barb. 606; Dustan v. McAndrew, 44 N. Y. 72; 
 Mason v. Decker, 72 N. Y. 595, 599; Adams v. Mirick, 5 Serg. & 
 R. 32; Saladin v. Mitchell, 45 111. 85; Barnett v. Terry, 42 Ga. 
 283; Atwodd v. Lucas, 53 Me. 508; Shawhaut v. VanWest, 25 Ohio 
 St. 490; Holland v. Rea, 48 Mich. 218;. Smith v. Pettee, 70 N. Y. 
 13; Camp v. Hamlin, 55 Ga. 259; Linden v. Bldren, 49 Wis. 305; 
 Rosenbaum v. Weeden, 18 Gratt. 785; Smith v. Pettee, 70 N. Y. 13, 
 
188 KEMEDIES OF THE VENDOR. [§ 113. 
 
 vendor elects to re-seU on default of acceptance by the 
 vendee, and notifies the latter of his intention of so doing, 
 the vendor becomes the agent of the buyer for the purposes 
 of such sale, and is bound to the exercise of good faith and 
 reasonable diligence to effec" a sale at the best price; and, 
 it has been held that the vendor is bound to obey the in- 
 structions given him by the vendee as to the time and man- 
 ner of sale, where he can do so without sacrificing his lien 
 under the contract. If the vendor neglects to give notice 
 to the buyer of the time and place of the resale, and there 
 be evidence of fraud or unfairness in the transaction, the 
 courts may adopt some other standard than the price ob- 
 tained as a test of the market value of the goods, in deter- 
 mining the difference between it and the market price.*' 
 
 3. Stoppage in transitu. — Another remedy of the vendor 
 against the goods is stoppage in transitu. This remedy has 
 already been sufficiently considered, for "the purposes and 
 plan of this treatise.*' 
 
 4. Reclamation. — We have seen that where the vendee 
 purchases goods under false representations, or with an in- 
 tention not to pay for them, he does not acquire a good 
 title as against the defrauded vendor, who may reclaim 
 the goods from the fraudulent vendee, or from any one 
 other than a iona fide purchaser of such vendee.*^ 
 
 5. Action for refusal to receive the goods. — ^Where the 
 property in the goods has not passed to the buyer, and he 
 
 18; Consinery v. Pearsall, 8 Jones & Sp. 114; Pickering v. Bard- 
 well, 21 Wis. 562; Brownlee v. Bolton, 44 Mich. 218. 
 
 «Tiede. Sales, § 334; Glrard v. Taggart, 5 Serg. & R. 32; Chap- 
 man V. Ingram, 30 Wis. 290; Rickey v. Tenhroeck, 63 Mo. 587; 
 Haskell v. McHenry, 4 Cal. 411; McComhs v. McKennan, 2 Watts 
 & S. 219; CofEman v. Hampton, 2 Watts & S. 399, 
 
 <« Supra, § 111. 
 
 " Supra, § 105, sub. 5 
 
§ 113.] EEMEDIES OF THE VBNDOH. 189 
 
 wrongfully refuses to accept and pay for them according 
 to promise, the vendor may have an action against the ven- 
 dee, in which he will be entitled to recover the actual dam- 
 ages sustained, but not the full purchase price of the goods. 
 The me g.sure_ of imag es generally governing in this action, 
 is the difference between the con tract pric e and the market 
 p rice o f such goods at the time when the contract was 
 broken, and the date of breach is the time when the goods 
 were to have been delivered.*' 
 
 6. Action for the price. — ^According to the weight of 
 American authority, when the vendor has complied with 
 the contract on his part he may regard the goods as the 
 property of the buyer, notwithstanding his refusal or neg- 
 lect to accept, and recover of him the fuU contract price.*' 
 There are some authorities which are not in harmony with 
 the general trend of judicial opinion on this point.'^" 
 
 7. It is hardly necessary to add that in case the goods 
 are delivered to, and accepted by, the vendee, and he re- 
 fuses or neglects to pay for them when payment is due, the 
 vendor may maintain an action' against him for the pur- 
 chase price. 
 
 *8 Benj. Sales, pp. 708, 710, Am. n. p. 716. Tiede. Sales, § 333 ; 
 Gibbons v. United States, 8 Wall. 269; Clement, etc., Co. v. Meser- 
 ole, 107 Mass. 362; Rand v. White Mountains R. R. Co., 40 N. H. 
 79; Young v. Merton, 27 Md. 114; Harris Mfg. Co. v. Marsh, 49 
 Iowa, 11; Hayden v. Demets, 53 N. Y. 426; Danforth v. Walker, 
 37 Vt 239; Nixon v. Nixon, 21 Ohio St. 114. 
 
 49 Supra, § 109, sub. 1; Tiede. Sales, § 333; 3 Pars. Cont. (17 
 Ed.), p. 210; Mason v. Decker, .72 N. Y. 595, 599; Bement v. Smith, 
 15 Wend. 493; Doremus v. Howard, 23 N. J. L. 390; Bridgford v. 
 Crocker, 60 N. Y. 627; Higgins v. Murray, 73 N. Y. 252; Nichols 
 V. Moore, 100 Mass. 277; Wade v. Moffet, 21 111. 110; Bell v. Oflutt, 
 10 Bush, 639; Ballentine v. Robinson, 46 Pa. St. 177. 
 
 oo Pittsburg, etc., R. R. Co. v. Heck, 50 Ind. 303; Indianapolis, 
 etc., R. R. Co. V. Maguire, 62 Ind. 140; Fell v. Muller, 78 Ind. 
 507; Moody v. Browe, 34 Me. 107 
 
190 EEMEDIES OF THE VENDEE. [§' 114. 
 
 § 114. Bemedies of the vendee. — The vendee, as well 
 as the vendor has several remedies for non-performance 
 or breach of the contract, each adapted to the particular 
 circumstances of the case. 
 
 1. Action for non-delivery. — In case of failure by the 
 vendor to deliver the goods in pursuance, and according 
 to the terms, of his contract, the buyer has an action 
 against him for damages. "When the price has not been 
 paid, the measure of damages will be the difference between 
 the contract price and the market value at the time and 
 place of delivery.'^ The authorities do not agree as to 
 the measure of damages where the contract price has been 
 paid. One class hold that the buyer is only entitled to 
 receive the market price at the time and place of delivery."' 
 Other authorities hold that the measure of damages is the 
 highest market price of the goods between the time of de- 
 livery and the commencement of the action."* 
 
 t>i Tlede. Sales, § 335; Benj. Sales, p. 829, et seq., Am. n. p. 859; 
 Dana v. Fielder, 12 N. T. 40; Parsons v. Sutton, 66 N. Y. 92; 
 Sleuter v. Wallbaum, 45 111, 44; Grand Tower Co. v. Phillips, 23 
 Wall. 471; Bush v. Holmes, 53 Me. 417; Somers v. Wright, 115 
 Mass. 292; Miles v. Miller, 12 Bush, 134; Chadwick v. Butler, 28 
 Mich. 349; Guice v. Crenshaw, 60 Tex. 344; Gray v. Hall, 29 Kan. 
 704; Kribs v. Jones, 44 Md. 396; Gordon v. Norris, 49 N. H. 376; 
 Rose V. Bozeman, 41 Ala. 678; Worthen v. Wilmot, 30 Vt. 555; 
 West V. Pritchard, 19 Conn. 215; Behner v. Dale, 25 Ind. 433; 
 Cannon v. Folsom, 2 Iowa, 101; White v. Tompkins, 52 Pa. St. 
 363; Hill v. Chapman, 59 Wis. 211; Porter v. Barrow, 3 La. An. 
 140; Crosby v. Watklns, 12 Cal. 85. And see supra, § 103. 
 
 B^Cofleld V. Clark, 2 Cal. 102; Shepherd v. Hampton, 3 Wheat. 
 200; Bear v. Harnish, 3 Brewst 116; Balto., etc., Co. v. Sewell, 
 36 Md. 238; White v. Salisbury, 33 Mo. 150; Hill v. Smith, 32 Vt. 
 433; Rose v. Bozeman, 41 Ala. 678; McKenney v. Haines, 63 Me. 
 74; Smith v. Dunlap, 12 111. 184; Smlthhurst v. Woolston, 5 Watts 
 & S. 106; Humphreysville, etc., Co. v. Vermont, etc., Co., 33 Vt 
 92; Douglass v. McAllister, 3 Cranch, 298. 
 
 " Clark V. Pinney, 7 Cow. 687; Arnold v. Suffolk Bank, 27 Barb. 
 
§ 114.] REMEDIES OF THE VENDKB. 191 
 
 2. Special damages. — ^In some cases the buyer is ehtitled 
 to special damages beyond the difference between the 
 market value and the contract price. While the alleged 
 loss of mere speculative profits constitutes no ground for 
 the recovery of damages, profits which would naturally 
 result from the possession of the goods bought, and the 
 reasonable expectation of which may have been an induce- 
 ment to the purchase, may be recovered as special or con- 
 sequential damages; and this especially where the vendor 
 knows the use for which the goods were bought.'* 
 
 3. Specific performance. — Cases of non-delivery some- 
 times occur in which an action at law will not afford the 
 buyer an adequate remedy. In such cases the court of 
 equity grants relief by compelling specific performance of 
 the contract by a delivery of the goods in accordance with 
 its terms. For the riiles governing an action for specific 
 performance, the student and practitioner will consult 
 works on equity jurisprudence."" 
 
 424; West v. Wentworth, 3 Cow. 82; Dabovlch v. Emerlc, 12 Cal. 
 171; Cannon v. Folsom, 2 Iowa, 101; West v. Pritchard, 19 Conn. 
 212; Meyer v. Wheeler, 65 Iowa, 390; Kent v. Ginten, 23 Ind. 1; 
 Randon v. Barton, 4 Tex. 289; Gllman v. Andrews, 66 Iowa, 116; 
 Maher v. Riley, 17 Cal. 415. 
 
 6*Tiede. Sales, § 336; Benj. Sales, p. 829, et seq., Am. n. p. 859, 
 et seq.; Royalton v. Royalton, etc., Co., 14 Vt. 311; Masterton v. 
 Mayor of Brooklyn, 7 Hill, 62; Cook v. Com'rs of Hamilton Co., 
 6 McLean, 612; Burrell v. N. Y., etc., Co., 14 Mich. 34; Hubbard v. 
 Howell, 51 Conn. 423; United States v. Behan, 110 U. S. 338; Nat. 
 Filtering Oil Co. v. Citizens Ins. Co., 106 N. Y. 535; Morrison v. 
 Lovejoy, 6 Minn. 224; Passenger v. Thorburn, 34 N. Y. 634; White 
 V. Miller, 7 Hun, 427, 71 N. Y. 118, 78 N. Y. 393; Flick v. Weather- 
 bee, 20 Wis. 392; Bell v. Reynolds, 78 Ala. 511; Shepard v. Mil- 
 waukee Gas Light Co., 15 Wis. 318; Bartlett v. Blanchard, 13 
 Gray, 429; Adams Exp. Co. v. Egbert, 36 Pa. St. 360; Fesaler v. 
 Love, 48 Pa. St 407; Richmond v. Dubuque, etc., R. R. Co., 40 
 Iowa, 264, 43 Iowa, 422. 
 
 sBTiede. Sales, § 337; Ben]. Sales, p. 848, Am. n. p. 862. 
 
192 REMEDIES OF THE VENDEE. [§ 114. 
 
 4. Remedies for hreach of warranty. — Receipt of the 
 goods by the vendee under an executory contract of sale, 
 does not bar his remedies for a breach of warranty. There 
 may be a breach of warranty of title; of the quality of 
 the goods; in not delivering goods of the same kind or 
 quality as those bought; in delivering goods that do not 
 correspond with the sample, where the sale is by sample. 
 In these cases the buyer has the choice of three remedies: 
 First, he may, except in the case of a specific chattel in 
 which the property has passed to him, refuse to accept the 
 goods, and return them, or give notice to the vendor that 
 he rejects them, and that they remain at the seller's risk; 
 second, he may accept the goods and have his action for a 
 breach of the warranty; or, third, if he has not paid the 
 price, and is sued therefor by the vendor, he may set up 
 the breach of warranty as a defense in recoupment, or as a 
 counterclaim."" 
 
 In some of the States the courts hold, that in the absence 
 of fraud, or knowledge of the defect by the vendor, or of 
 an agreement to return, the mere breach of warranty does 
 not confer that right.'^ There is a lack of unanimity in 
 the authorities on this point. 
 
 oBBenj. Sales, p. 851, et seq., Am. n. p. 863, et seq.; Tiede. Sales, 
 § 197; Hoadley v. House, 32 Vt. 179; Butler v. Northumberland, 
 50 N. H. 33; Magee v. Billlngsley, 3 Ala. 679; Voorhes v. Earl, 
 2 Hill, 288; Gates v. Bliss, 43 Vt. 299; Freyman v. Knecht, 78 Pa. 
 St. 141; Douglass Axe Co. v. Gardner, 10 Cush. 88; Perrin v. Ter- 
 rell, 30 N. J. L. 454; Mandell v. Buttles, 21 Minn. 391; Northwood 
 V. Rennic, 3 Ont. Ap. 37 (1878) ; Kimball v. Vorman, 35 Mich. 
 310; Muller v. Eno, 14 N. Y. 597; Day v. Pool, 52 N. Y. 416; Vin- 
 cent V. Leland, 100 Mass. 432. 
 
 B'Lightburn v. Cooper, 1 Dana, 273; Voorhes v. Earl, 2 Hill, 
 288; Muller v. Eno, 14 N. Y. 597; Kase v. John, 10 Watts, 107; 
 Walls V. Gates, 6 Mo. Ap. 242. See suipra, §§ 105, 107, 108, in re- 
 gard to fraud, conditions and warranty. 
 
§ 114.] REMEDIES OP THE VENDEE. 193 
 
 5. Mistake and failure of consideration. — If, by reason 
 of a mistake in regard to a material fact, the minds of the 
 parties fail to meet upon the subject matter, or terms in an 
 executory contract of sale, the vendee is excused from its 
 performance. If the mistake be not discovered until after 
 the execution of the contract, the vendee may then rescind 
 by placing the other party in statu quo, and recover back 
 what he has paid. And the same rule, substantially, ap- 
 plies in case of a failure of consideration."* 
 
 6. Illegal contracts of sale. — ^Before passing from the 
 subject of remedies, it should be stated that, according to 
 the weight of American authority, the courts wiU not 
 grant relief to either party to an illegal contract of sale, 
 whether executory or executed, upon the ground of public 
 policy. The vendor can retain the price if paid, but if 
 unpaid he cannot maintain an action for the value of the 
 goods. This just and wholesome rule is in accordance 
 with the common law maxim: Ex turpi causa non oritur 
 actio, which applies as well to a statement of defense as to 
 a statement of claim. Says Lord Mansfield, in Montefiori 
 V. Montefiori,'^* "no man shall set up his own iniquity as a 
 defense any more than as a cause of action." '* But Eng- 
 lish cases hold, that under an unlawful agreement remain- 
 ing executory, the party paying the price or delivering the 
 goods, may repudiate the transaction, and recover back 
 his money or goods. The action, it is said, "is there 
 founded, not upon the unlawful agreement, but upon its 
 
 fiiBenj. Sales, p. 346, et seq.. Am. n. p. 356; Tiede. Sales, S 35; 
 Elsh. Cont (2nd Enl. Ed.), §| 693-714, 632; 2 Kent, Com. p. 491. 
 See supra, § 104. 
 
 Bs Bl. 363. 
 
 *oTlede. Sales, § 293; Benj. Sales, p. 462, et seq., Am. n. p. 497, 
 et seq. And see supra, § 106. 
 
 13 
 
194 INDORSEMENT. [§ 115. 
 
 disaffirmance."" To the same eflEect is a decision of the 
 Supreme Court of the United States.** 
 
 V. Indorsement. 
 
 § 115. There are several kinds of instruments, choses 
 in action , which, contrary to our inherited common law, 
 are now held in this country to be negotiable, the title to, 
 and property in which will pass from vendor to vendee by 
 indorsement and delivery, or delivery alone, according to 
 the tenor of the instrument. The principal instruments 
 of this class are Bills of Eynh ange. Pro missory Note s. 
 Cou pon Bond s. Che cks, Cer tificat es of Deposit, Bank No tes, 
 ■Certific ates of stock . Dra fts^ Bills of Credit . Ci rcular Note s. 
 Bills of Lading. Guarant ees, and Lette rs, of Credi t." 
 
 Bills of lading and certificates of stock, however, are only 
 quasi negotiable, but are generally classed with negotiable 
 instruments. 
 
 Mr. Daniel, in his excellent treatise on Negotiable In- 
 struments, gives this definition of such an instrument: 
 "An instrument is called negotiable when the legal title 
 to the instrument itself, and to the whole amount of money 
 expressed upon its face, may be transferred from one to 
 another by indorsement and delivery by the holder, or by 
 delivery only."** When made payable to order, title 
 passes by indorsement and delivery ; and by delivery with- 
 
 «i Taylor v. Bowers, 1 Q. B. D. 291, C. A.; Symons y. Hughes, 2 
 Eq. 475, 479. 
 
 «2 Spring Co. v. Knowlton, 13 Otto, 49. 
 
 OS 1 Dan. Neg. Inst. pp. 1-3, 5-7, 28-31, 351, et seq., 660, et seq.; 
 2 Dan. Neg. Inst. pp. 442, et seq., 456, 458, 529, 532, 638, 641, 646, 
 647, 650, 651, 612, et seq. 
 
 84 1 Dan. Neg. Inst. p. 1. 
 
§ 116.] ASSIGNMENT. 195 
 
 out indorsement when payable to bearer in terms, or legal 
 effect." 
 
 In order to constitute a sale and transfer of a negotiable 
 instrument, it must have a pre-existing vitality; otherwise 
 there is nothing to sell or transfer.*' 
 
 Negotiable instruments are referred to in this connection 
 merely as illustrations of the acquisition of personal prop- 
 erty by indorsement. It is not within the scope of this work 
 to treat of such instruments, or the contract and effect of 
 indorsement, in other relations and branches of the law. 
 
 VI. Assignment. 
 
 § 116. The term "assignment" is very comprehensive, 
 including every kind of transfer. By use the term is ap- 
 propriated to special transfers, such as an assignment for 
 the benefit of creditors; transfer of commercial paper not 
 negotiable, and of such as is negotiable without indorse- 
 ment; transfer of bonds; and transfers by a written in- 
 strument. But the term is not confined to written trans- 
 fers." 
 
 At common law choses in possession might be assigned 
 by delivery of possession with intent to transfer the title. 
 But choses in action could not be assigned. Equity, how- 
 
 BBEdw. Bills, p. 263; 1 Dan. Neg. Inst. p. 92. 
 
 «6Edw. Bills, p. 352; 1 Dan. Neg. Inst. pp. 603, 604; Powell v. 
 Waters, 8 Cow. 669; Williams v. Storm, 2 Duer, 52; Eastman v. 
 Shaw, 65 N. Y. 522. 
 
 67Tiede. Sales, § 13; 1 Dan. Neg. Inst. p. 585; 1 Bouv. L. Diet 
 "Assignment;" Edw. Bills, p. 245; 2 Sch. Pers. Prop. p. 673, et 
 seq.; Williams, Pers. Prop. pp. 34-36, 117, 118; Bish. Cont. (2nd 
 Enl. Ed.), §i 1177-1189; Ball v. Chadwick, 46 111. 31; Cowles v. 
 Blcketts, 1 Iowa, 582; Chase v. Walters, 28 Iowa, 460; Hight v. 
 Sackett, 34 N. Y. 447, 451; Perrins v. Little, 1 Green, 248; Potter 
 V. Holland, 4 Blatchf. 210. 
 
196 BAILMENT. [§ 117. 
 
 ever, has established the rule that all personal property, 
 if not negotiable, may be assigned by the owner.*' 
 
 No particular form need be observed to effect the trans- 
 fer, so long as the intent is present."* In order to perfect 
 a title, the weight of authority is that it is indispensable 
 that the assignee should immediately give notice of the as- 
 signment, otherwise a priority may be obtained by a subse- 
 quent assignee.'''* This rule however is contrary to the New 
 York decisions. It is there held that as between different 
 assignees of a chose in action by express assignment from 
 the same person, the one prior in point of time will be pro- 
 tected, although he has given no notice of such assignment 
 to either the subsequent assignee or the debtor.''* 
 
 An assignment may be impeached for fraud upon as- 
 signors or creditors. Unless the title is thus disputed, as 
 between debtor and assignee, it is immaterial what consid- 
 eration was paid.'" 
 
 The assignor cannot impair or defeat the assignee's right, 
 either at law or in equity.'" 
 
 After notice of the assignment equities between the a*" 
 signor and debtor are unavailable.''* 
 
 VII. Bailment. 
 
 § 117. Bailment, — from the French word iailler signi- 
 fying to deliver, — ^is sometimes classed as a mode of acquir- 
 
 »8 Story, Eq. Jur. §§ 1040-1057. 
 
 •« Grain v. Paine, 4 Gush. 483; Tallman v. Hoey, 89 N. T. 537. 
 
 TO Schuller v. Laclede Bank, 120 U. S. 511; Story, Eq. Jur. 
 § 1035; Eaton on Equity, p. 503. 
 
 'iFortunato v. Patten, 147 N. T. 277; Fairbanks v. Sargent, 
 104 N. Y. 108. 
 
 It Belden v. Meeker, 47 N. Y. 307. 
 
 78 Chapman v. Haley, 43 N. H. 300. 
 
 7*Bartlett v. Pearson, 29 Me. 9; Cummlngs T. Fellam, 13 Vt 
 434. 
 
§ 117.] BAILMENT. 197 
 
 ing title to personal property, in the third division now 
 under treatments Between this and the other modes of 
 acquiring title already considered, there is the important 
 distinction that in a hailment the special property only, 
 at the most, passes to the hailee, the general or absolute 
 property remaining in the bailor, while in the other modes 
 of transfer the full title and absolute property, as a rule, 
 pass to the transferee.'"' Generally, however, the bailee 
 has a right to the possession for the purposes of the bail- 
 ment, and may protect it, and the thing bailed, against 
 everybody except the true owner.'" And in some cases 
 the bailee may have an action against the true owner for a 
 violation of the contract, or an infringement of the right 
 of the former based upon his special property in the thing 
 bailed." 
 
 The subject of bailment covers an important and separ- 
 ate branch of the law, and its discussion is not in place 
 here, except in so far as it constitutes a mode of acquiring 
 a special property or possessory interest in personal prop- 
 erty. 
 
 TBTiede. Sales, § 3; Story, Bailm. §§ 93-96; Benj. Sales, Am. n. 
 p. 4; 2 Sch. Pers. Prop. p. 695, et.seg. 
 
 78 2 Black. Com. p. 452; Story, Bailm. § 93; Bouv. L. Diet. "Bail- 
 ment," sub. 5; Hurd v. West, 7 Cow. 752; White v. Bascom, 28 Vt. 
 268; Chesley v. St. Clair, 1 N. H. 189; Bliss v. Schaub, 48 Barb. 
 339. 
 
 ■n 2 Pars. Cont. pp. 126, 127; Hickok v. Buck, 22 Vt 149; Benja- 
 min T. Stremple, 13 III. 466. 
 
198 LIMITATIONS. [i§ 118. 
 
 CHAPTER X. 
 
 LIMITATIONa 
 
 I 118. History and purpose. 
 
 119. When the period of limitation begins to run. 
 
 120. New promise. 
 
 § 118. History and purpose. — At common law, the 
 period of limitation for the commencement of actions upon 
 personal claims was twenty years, and this is still the law 
 where the time has not been changed by statute.^ This 
 limitation, it is thought, was based upon the presumption 
 of payment after the lapse of so many years, a presumption 
 favored by the natural desire of honest debtors to pay, and 
 the general inclination of creditors to enforce payment 
 within a reasenable time.' The common law limitation 
 was changed by act of Parliament, 21 James I, c. 16, which 
 prescribed the period of six years for the commencement 
 of certain actions therein named. The provisions of this 
 statute, and of the act of 9 George IV, c. 14, subsequently 
 passed, have been quite generally adopted in this country, 
 and now prevails in substance in most of our States, there 
 being, however, other statutory provisions for special de- 
 mands or debts. 
 
 The history of adjudications under these statutes in 
 England developes much apparent conflict of opinion which 
 is largely due, it is believed, to different views in regard to 
 the true theory or ground of limitation. One line of de- 
 
 13 Pars. Cont (7 Ed.), p. 61, et seq.; Blah. C!ont (2nd Enl. 
 Ed), § 1351. 
 2 See 3 Pars. Cont. (7 Ed.), at p. 61. 
 
§ 118.] HISTORY AND PUEPOSB. 199 
 
 cisions is based upon the theory of prestimption of pay- 
 ment, as was the common law limitation; the other upon 
 the ground of impolicy in suffering claims to lie unsettled 
 for a long period of time, and the danger of injustice in 
 the enforcement of stale demands. The question of differ- 
 ence was, and is, in brief, whether statutes of limitation are 
 statutes of presumption, or of repose. The two views lead 
 to quite different results, and account for the conflict of 
 authority. If the lapse of time simply raises a presump- 
 tion of payment, it is neutralized by whatever will rebut 
 the presumption; and anything will have this effect which 
 implies, or amounts to an acknowledgment, that the debt 
 has not been paid or satisfied. As to what acknowledg- 
 ment, under this theory, is sufficient to take a case out of 
 the Statute of Limitations, Lord Mansfield, in Truman v. 
 Fenton,^ says: "The slightest acknowledgment has been 
 held sufficient, as saying, 'prove your debt, and I wiU pay 
 you;' 'I am ready to account, but nothing is due you.' 
 And much slighter acknowledgments than these will take 
 a case out of the statute." But if the Statute of Limita- 
 tions be a statute of repose, it remains a bar to the enforce- 
 ment of a claim within its provisions, unless the debtor 
 voluntarily renounces its benefit, and makes a new promise 
 to pay the old debt. 
 
 The course of adjudications by the English courts under 
 these statutes, is somewhat remarkable. The early diecis- 
 ions adopted the theory of repose, but soon the theory, of 
 presumption obtained, and continued through a long line 
 of adjudications. This view, however, gradually yielded 
 to the first, which is now the prevailing doctrine both in 
 England and the United States.* 
 
 »Cowper, 548. 
 
 4 3 Pars. Cont. (7 Ed. ), p. 63; Bish. Cont. (2ixd Enl. Ed.), 
 
200 WHEN LDMITATION BEGINS. [§ 119. 
 
 § 119. When the period of limitation begins to run. — 
 This may be governed by the wording of the particular 
 statute in question in a given ease, but as a general rule 
 the limitat ion begins to run wTibti tha right of aotinn 
 accrues. It is then only that the reason of the limitation 
 applies, whether the theory of presumption, or of repose, 
 be adopted as the basis of the statute." 
 
 The period of limitation once begun, continues to run, 
 as a general rule, notwithstanding the subsequent occur- 
 rence of some disability which did not exist at the com- 
 mencement of the action, and whi^, had it then existed, 
 would have postponed the running of the statute until 
 removal of the disability.' 
 
 To the general rule governing the time when the statute 
 begins to run, there are certain exceptions. By the 
 statute of James, above referred to, it is provided in sub- 
 stance, that if the plaintiff, at the time the action accrues, 
 be an infant, feme covert, non compos mentis, imprisoned, 
 or beyond the seas, he may bring his action at any time 
 within, the prescribed period of limitation after the dis- 
 ability ceases. Substantially like provisions exist in the 
 statutes of the several States of our Union, with some 
 variety of details. And it is held, that if several disabili- 
 
 1351; 2 Sch. Pers. Prop. p. 687. For English statutes on this sub- 
 ject, see Goodeve, Mod. L. Pers. Prop. p. 271, et seql 
 
 eS Pars. Cont. (7 Ed.), pp. 90-94; Bish. Cont. (2nd Enl. Ed.), 
 SS 1354-1355; 2 Sch. Pers. Prop. p. 680; Jones v. Jones, 91 Ind. 
 378; McMichael v. Carlyle, 53 Wis. 504; Wittersheim v. Lady 
 Carlisle, 1 M. & "W. 533; Fryer v. Roe, 12 C. B. 437; 22 Eng. L. & 
 Eq. 440; Bell v. Lamprey, 57 N. H. 168. 
 
 «3 Pars. Cont. (7 Ed.), p. 95; Harris v. McGovern, 99 U. S. 161; 
 People V. Gordon, 82 111. 435; Hunton v. Nichols, 55 Tex. 217; 
 Kistler v. Hereth, 75 Ind. 177; Howell v. Young, 5 B. & C. 259; 
 Crawford v. Gaulden, 33 Ga. 173; Waters v. Thanet, 2 Q. B. 757; 
 Leonard v. Pitney, 5 Wend. 30. 
 
§ 120.] NEW PEOMISE. 201 
 
 ties co-exist when the right of action accrues, the statute 
 does not begin to run until all are removed. But if only 
 one exists when the cause of action accrues, other dis- 
 abilities arising afterwards cannot be tacked to the first, 
 so as to extend the time of limitation.'' 
 
 Absence of the defendant from the jurisdiction of the 
 State, will also create a disability, and postpone the run- 
 ning of the statute against the plaintiff until such disabil- 
 ity ceases.* 
 
 The expression in the English statute "beyond the 
 seas," or similar substituted phrases, are used in some of 
 the American statutes, and the courts have not fully 
 agreed in their construction. Some construe such phrases 
 to mean beyond the limits of the United States, while 
 others hold, that beyond the State or jurisdiction where 
 the action is tried, will satisfy the statutes.' 
 
 § 120. New promise. — A new promise, either in fact or 
 by operation of law, will take a case out of the statute, 
 revive a claim already barred, and extend the time of limi- 
 tation when made before its expiration. In either case a 
 new, or extended, limitation begins to run from the making 
 of the new promise, of the same duration as that of the 
 original period. Otherwise stated, the new promise, 
 whether made by the debtor in fact, or for him by opera- 
 tion of law, as by part payment, establishes a new initial 
 point for the period of limitation.^* 
 
 t3 Pars. Cont. (7 Ed.), "p. 94, et seq.; 2 Sch. Pers. Prop. pp. 689, 
 690; Demarest v. Wynkoop, 3 Johns. Ch. 129; Jackson v. Johnson, 
 5 Cow. 74; Butler v. Howe, 13 Me. 397; Jackson v. Wheat, 18 
 Johns. 40; Eager v. Commonwealth, 4 Mass. 182; Dease v. Jones, 
 23 Miss. 133; Scott v. Haddock, 11 Ga. 258. 
 
 8 3 Pars. Cont. (7 Ed.), p. 96, et seq.; 2 Sch. Pers. Prop. p. 690. 
 
 » 3 Pars. Cont. (7 Ed.), p. 99. 
 
 loBish. Cont. (2nd Enl. Ed.), §§ 1359-1365; 2 Sch. Pers. Prop, 
 pp. 691-694; 3 Pars. Cont. (7 Ed.), p. 80, et seq. 
 
202 NEW PEOMISB. [§ 120. 
 
 By the English statute, and the statutes in most of our 
 States, a new promise effectual to take a case out of the 
 statute must be in writing. 
 
 There is not entire conformity in the authorities upon 
 the question, — "What will constitute a new promise? The 
 difference of opinion may be due in part to differences in 
 the statutory provisions on the subject. Eliminating from 
 the discussion the conflict, or apparent conflict in adjudica- 
 tions resulting from diversity of statutes, there are certain 
 rules which may be considered as established by the weight 
 of authority. 
 
 1. The re must be either an express promise, or an ac - 
 knowl edgment of an existing indebtedness so expresse d. 
 and under such circu^tan c es as to give it the meanin g, 
 and ther efore the force and eff fi^t n^ " nft^ prnr"^"" The 
 rule laid down by Story, J. in Bell v. Morrison,^'' that an 
 acknowledgment sufficient to remove the bar of the statute, 
 must be an unequivocal and positive recognition of an 
 existing debt, which the party is liable and willing to pay. 
 And to the same effect are many other American authori- 
 ties." 
 
 2. It is not necessary that the acTmnwIftd gTinfint ghnnlrl 
 be nf any particular amount. If there be an admission of 
 a legal debt, and of a liability to pay it, evidence is admis- 
 sible to show the amount." 
 
 11 Tanner v. Smart, 6 B. & C. 603; Morrell v. Frith, 3 M. & W. 
 405; Hart v. Rendergast, 14 M. & W. 746. 
 
 12 1 Peters, 362. 
 
 nPurdy v. Austin, 3 Wend. 187; Allen v. Webster, 15 Wend. 
 284; Stafford v. Bryan, 2 Paige, 45; Loomis v. Decker, 1 Daly, 
 186; Chambers v. Garland, 3 Green, G. (la.), 322; Stockett v. 
 Sasscer, 8 Md. 374; Pritchard v. Howell, 1 Wis. 131; Moore t. 
 Bank of Columbia, 6 Pet. 86; Guier v. Pearce, 2 Browne (Pa.), 
 35; Young V. Monpoey, 2 Bailey (S. C), 278. 
 
 1* Dickinson v. Hatfield, 1 Moody & Eob. 141; Hazlebaker v. 
 
§ 120.] KBW PEOMISB. 203 
 
 3. An acknowle^gmesnt of a general indebtedness. 
 me rely, will not suffice ; it must be broad enough to mclT j i de 
 the g Beeific debt in question , and yet sufficiently precise and 
 definite to indicate unmistaJiably such debt." 
 
 4. We ha ve seen that an ackn owledgment, effectual to 
 remove the bar of the statute, m ust be equivalent to a new 
 projajsg. It follows that an acknowledgment, although in 
 other respects complete, which is so guarded and qualified 
 by the maker as to negative a promise, or which cannot 
 be fairly construed into a promise, will not suffice.** 
 
 5. P art payment of a deb t w^i^; fl° a '•nip takf it nnt 
 of the statute. The fact of payment is an acknowledgment 
 of an existing indebtedness, and on such acknowledgment 
 the law raises a promise of payment.*^ Bu t it must app ear 
 that t he paym ^Ti^^^ jfj rnnrln nnly fin ti pfirt nf ft lar ger debt: 
 for in the absence of conclusive testimony, it will not be 
 
 Reeves, 12 Fa. St. 264; Dinsmore v. Dinsmore, 21 Me. 433; Chel- 
 syn V. Dalby, 4 Young & C. 238; Barnard v. Bartholomew, 22 
 Pick. 291; Davis v. Steiner, 14 Pa. St. 275; Hale v. Hale, 4 
 Humph. 183; Thompson v. French, 10 Yerg. 453. 
 
 16 Moore v. Hyman, 13 Ired. 272; Buckingham v. Smith, 23 
 Conn. 453; Dawson v. King, 20 Md. 442; Stafford v. Bryan, 3 
 Wend. 532; Clark v. Dutcher, 9 Cow. 674. 
 
 18 Tanner v. Smart, 6 B. & C. 609; Mitchell v. Selman, 5 Md. 
 376; Danforth v. Culver, 11 Johns. 146; Creuse v. Deflganier, 10 
 Bosw. 122; Lawrence v. Hopkins, 13 Johns. 288; Brown y. State 
 Bank, 10 Ark. 134; Martin v. Broach, 6 Ga. 21; Conway v. Rey- 
 burn, 22 Ark. 290; Arey v. Stephenson, 11 Ired. L. 86; Robbins 
 v. Farley, 2 Strobh. 348. 
 
 1' 3 Pars. Cont. p. 80, et seq.; 2 Sch. Pers. Prop. pp. 691-694; 
 Bish. Cont. (2nd Enl. Ed.), § 1363; Whipple v. Stevens, 2 Foster, 
 219; Baxter v. Penniman, 8 Mass. 134; Bodger v. Arch, 28 Eng. 
 L. & Eq. 464; Bank of Utica v. Ballou, 49 N. Y. 155; Walker v. 
 Wait, 50 Vt 668; CucuUy v. Hernandez, 103 U. S. 105; Bngman v. 
 Immel, 59 Wis. 249; Glick v. Crist, 37 Ohio St. 388; Buxton v. 
 Edwards, 134 Mass. 567. 
 
204 NEW PROMISE. [§ 120. 
 
 deemed an admission of any more indebtedness than the 
 sum paid.^* 
 
 6, The Stata te of Limitations affects the remedy only ; 
 it d oes not f lifip^n^'f'ft t^p f^°^t| but simply bars an acti on 
 upo n it after the lapse of the stat utory limitation. ^' Hence 
 it follows logically that, while the remedy by action is gone 
 with the lapse"" of the limitation, a lien or security for the 
 debt is not lost by the running of the statute ; and to such 
 effect is the weight of judicial authority.*" 
 
 7. No if™^ fiopgid"^it''"i ''° '•pq^ ^ite to validate a new 
 pr omise, whether it be a promise made in fact by the 
 debtor, or one made for him by operation of law. As the 
 debt itself is not paid or discharged by the running of the 
 statute, the original consideration will sustain the new 
 promise.*^ The renewal of a debt barred by the statute, 
 so far as the necessity of a new consideration to sustain 
 a new promise is concerned, must not be confounded with 
 the voluntary release of a debt by the creditor for a suf- 
 ficient consideration, or under seal without consideration 
 in fact, in which case the debt itself is discharged. A new 
 promise, founded on a new and sufficient consideration, 
 may create a new contract, obliging the debtor to pay the 
 old debt; but this contract will not rest upon the original 
 
 18 Tippets V. Heane, Cromp. M. & R. 252 ; Linsell v. Bonsor, 2 
 BIng. N. C. 241; Waugh v. Cope, 6 M. & W. 824; Hodge v. Ma- 
 cauley, 25 Vt. 216; Pickett v. King, 34 Barb. 193; Lock v. Wilson, 
 9 Heisk. 784, 10 Helsk. 441; Harris v. Howard, 56 Vt. 695. 
 
 IBS Pars. Cont. pp. 100, 101; 2 Sch. Pers. Prop. p. 693. 
 
 20 Spears v. Hartley, 3 Esp. 81; Williams v. Jones, 13 East, 439; 
 Higgins V. Scott, 2 B. & Ad. 413; Mayor of N. Y. v. Colgate, 2 
 Duer. 1, 12 N. Y. 140; Alexander v. Whipple, 45 N. H. 502; Pratt 
 V. Huggins, 29 Barb. 277. 
 
 siBish. Cont. (2nd Enl. Ed.), §§ 1360, 1361. 
 
§ 120.] NEW PROMISE. 205 
 
 consideration as in case of limitation, for that consideration 
 died with the original obligation of which it formed the 
 basis.** 
 
 There are some other incidental rules of minor import- 
 ance pertaining to this topic, which cannot be noticed un- 
 der the limitations of this treatise ; but the foregoing outline 
 view of the general principles governing the subject, •yrill, 
 it is believed, furnish a sufficient guide to the student and 
 the practitioner. 
 
 22 See Bish, Cont (2nd Enl. Ed.), 5 1360, In connection with 
 §§ 95-99; also Hale v. Rice, 124 Mass. 292; Bunham y. Johnson, 
 135 Mass. 310; Valentine v. Foster, 1 Met. 520; Montgomery v. 
 Lampton, 9 Met. (Ky.), 519; Warren v. Whitney, 24 Me. 661; 
 Snevlly y. Read, 9 Watts, 396. 
 
206 mSUKANCE, DEFINITION, ET& [§ 121. 
 
 CHAPTER XL 
 
 INSURANCE. 
 
 § 121. Definition and terms employed. 
 
 122. Nature, and form, of tlie contract. 
 
 123. Classes of policies. 
 
 124. Consummation of the contract. 
 
 125. Subject-matter of tbe contract 
 
 126. Insurable interest. 
 
 127. Warranties; representations; statements. 
 
 128. Special provisions of the contract 
 
 129. Mutual insurance.' 
 « 
 
 § 121. Definition, and teems employed. — The risk or 
 policy of insurance, being a species of incorporeal personal 
 property, is entitled to recognition in this treatise, but for 
 a full discussion of the subject in all its details, reference 
 must be had to works specially devoted to insurance law. 
 
 TnsnraTififi ia. in brief, a contract nf inHfinmitv against 
 a loss whic h Tnay ariao (>ti t>iP t^p^mirrence of some even t. 
 It may provide for the payment of a specififtH Hum in p.aa R 
 of Insa, as in Tnarine and fire insurance contracts; or for 
 the pay ment of the stipulated val ue of the articles insu red, 
 as provided in what are termed "val ued polic ies" in fire 
 insurance; thus putting the party insured in as good a 
 condition as he would have been had no loss occurred. Or, 
 as in "open" or non-valued fire insurance contracts, the 
 provision for indemnity may be only for the repayment of 
 expenses incurred, and payment for the lost property at 
 its market value at the commencement of the risk. In 
 either case the insurer takes upon himself certain risks to 
 which the insured would otherwise be exposed; and hence 
 
§ 122.] NATURE AND POEM OP CONTRACT. 207 
 
 the contract of insurance is like in character and effect to 
 a bond of indemnity, or the guaranty of a debt.^ 
 
 The party undertaking to make the indemnity is called 
 the insurer or assurer; the party indemnified, the insured 
 or assured,; the consideration of the contract is called the 
 premium; the instrument embodying the contract is 
 termed the policy; the events and causes of loss insured 
 against are named risks or perils; and the property or 
 rights of the insured, in respect of which he is liable to 
 loss, constitutes the subject-matter of the insurance, or 
 insurable interest,' 
 
 § 122. Nature, and form, of the contract. — I t is a per - 
 so nal contrac t, and does not run with the subject matter 
 of the insurance, unless by force of special stipulations 
 which are not usual or legitimate elements of the contract 
 itself.* Whatever may be the kind or form of insurance, 
 the object and in tent of the contract is iTideTum'ty . as shown 
 in the last section, supra. Whether the contract provides 
 for the payment of a fixed sum on the occurrence of a 
 certain event, as in the case of life and marine insurance, 
 and of valued policies in fire insurance; or simply guar- 
 antees indemnity for loss, whatever it may be, within the 
 limitations and conditions of the contract, as in the case of 
 open or non- valued policies; the principle is the same, the 
 distinction between the different kinds and forms of con- 
 tract being only in the measure, and mode of determining 
 
 1 Phillips, Ins. p. 1; May, Ins. §§ 1, 2, 8; Williams, Pers. Prop, 
 p. 175; 1 Sch. Pers. Prop. p. 677; Bouv. L. Diet. "Insurance;" Lu- 
 cena v. Crawford, 2 Bos. & Pul. N. R. 300. 
 
 2 Citations last, supra. 
 
 3 May, Ins. § 6; Wilson v. Hill, 3 Met. (Mass.), 66; Disbrow v. 
 Jones, Harr. (Mich.), Ch. 48; Carpenter v. Providence, Wash. 
 Ins. Co., 16 Pet. 495; Sadlers' Company v. Babcock, 2 Atk. 554. 
 
208 NATUKE AND FORM OP CONTEACT. [§' 122. 
 
 the amount of indemnity in case of loss.* In the further 
 discussion of the subject, therefore, the different kinds of 
 insurance, mutual excepted, will not be treated separately. 
 Mutual insurance has some peculiar features which are 
 pointed out in a subsequent section." 
 
 Be4nsurance is an indemnity to the insurer against a 
 loss from a risk already assumed by him. The insurer 
 by a contract with another party becomes the insured 
 against loss on a risk for which he is the insurer. The 
 new contracting party undertakes in reference to the 
 first insurer, what the latter has undertaken in reference 
 to the party insured by him, and subject to like rights, 
 duties and obligations." 
 
 The original insured remains liable on his contract 
 with the party insured by him. There being no privity of 
 contract between the latter and the re-insurer, he has no 
 claim upon him in case of loss.'' If a loss occurs the re- 
 insured may have no action against the reinsurer, without 
 first paying the loss to the original insured. To main tain 
 the ac tion he m ust prov e hisjntfirfist in the subject matter, 
 and the fact and amount of loss, as the original insured 
 must have proved them against him, and he is entitled to 
 the same defenses that are available to the original insurer 
 on the first contract.* 
 
 *May, Ina S 7. 
 « § 129. 
 
 «May, Ins. |§ 9, 11; 1 Sch. Pers. Prop. p. 686; 3 Kent, Com. p. 
 279; 1 Phillips, Ins. §§ 78a, 404. 
 
 7 1 Sch. Pers. Prop. p. 688; 3 Kent, Com. p. 279; Bowery Fire 
 Ins. Co. v. N. Y. Ins. Co., 17 Wend. 359; Philadelphia Ins. Co. v. 
 Washington Ins. Co., 23 Pa. St. 250; Eagle Ins. Co. v. Lafayette 
 Ins. Co., 9 Ind. 443. 
 
 8 May, Ins. § 11; 3 Kent, Com. p. 279; New York Mar. Ins. Co. 
 V. Prot Ins. Co., 1 Story (C. C. Rep.), 458; Eagle Ins. Co. v. 
 
§ 123.] CLASSES OP POLICIES. 209 
 
 Dou^ejinsiirance means two or more insurances on the 
 same risk, and the same interest. But, as the insured is 
 only entitled to indeniniiy, he can recover no more than 
 enough for that purpose in case of loss. He may, how- 
 ever, recover his whole loss of any one of the insurers; 
 and the one paying the loss will have a claim for contri- 
 bution against the other insurers for their respective pro- 
 portions of the amount paid; the several ins^jrers holding 
 substantially the relation to each other of co-sureties, 
 with the like rights, duties, and obligations.' The amount 
 of recovery against any one of the co-insurers is now 
 quite generally limited in the contract to such proportion 
 of the loss as the amount insured by him bears to the 
 aggregate amount of insurance.^" 
 
 The form of the contract is not essential. If, as a whole, 
 on a fair and reasonable interpretation, it imports an in- 
 surance, it will stand, however informal and inartificial in 
 structure. Written insurance contracts, termed policies, 
 are quite generally in use, and are advisable in aU cases, 
 but, on the weight of authority, an oral contract may be 
 valid when not contrary to statute.*' 
 
 § 123. Classes of policies. — There are three classes of 
 policies; valued, and open ; iitn.^pr anrl interpst j and-iime 
 and vnvane. 
 
 Lafayette Ins. Co., 9 Ind. 443; Hone v. Mut. Safety Ins. Co., 1 
 Sandf. 137. 
 
 • May, Ins. i 13; 1 Sch. Pers. Prop. pp. 688, 689; 3 Kent, Com. 
 pp. 281, 282; Lucas v. Jefferson Ins. Co., 6 Cow. 635; Peoria Ma- 
 rine & Fire Ins. Co. v. Lewis, 18 111. 553; Merrick v. Germanla 
 Fire Ins. Co., 54 Pa. St. 277; Baltimore Fire Ins. Co. v. Lovey, 
 20 Md. 20; Gordon v. liondon Assurance Co., 1 Burr. 492. 
 
 10 Citations last, supra. 
 
 "May, Ins. § 14, et seq.; 1 Sch. Pers. Prop. p. 680; Fland. Fire 
 Ins. 62, 63; Commercial, etc., Ins. Co. v. Union Mut Ins. Co., 19 
 
 14 
 
210 CLASSES OF POLICIES. [§ 123. 
 
 A valued policy is one in which t.hfi valna nf ^lift p rop- 
 erty insured, and t he sum to be paid in nasft of loss, ^ .m 
 fix ed by the terms of the contrac t; and in an action on 
 the policy by the insured, when the loss is total, no proof 
 on these points dehors the written contract is requisite or 
 admissible. And if the insurance be upon several articles 
 of equal value at a stipulated aggregate valuation, the 
 insured will recover for the loss of one the proportion 
 which it bears to the whole.^* 
 
 An opp,n pnlicii i s one in which the value, aniL-damages 
 in^eaafi-of loss, are not fixed by the policy, bji±_left-open 
 to be prn vpd, or otherwise deter mined by thpi partie Sj 
 whi ch determination is called adjustment of the los s.^^ The 
 same policy, it should be noticed, may be open as to one 
 or more articles insured, and valued as to others.^* 
 
 A vmqp.r pnUr.jf ig nyiP in wViiVTi fr ft insured has nO in - 
 terests^ nothing i nsurable, and h ence runs no r isk. It is, 
 in other words, a p-ambling contr act. The want of interest 
 appears by the terms of the policy, indicated by such ex- 
 pressions as, "Without further proof of interest than the 
 policy," "interest or no interest," and the like. 
 
 Wager policies are prohibited in England, and such 
 clauses as those just quoted are held as conclusive proof 
 that the contract is a wager. But in this country it has 
 
 How. 318; Davenport v. Peoria, etc., Ins. Co., 17 Iowa, 276; Bap- 
 tist Cliurcll V. Brooklyn Ins. Co., 19 N. Y. 305. 
 
 12 May, Ins. §§ 30, 31; 1 Sch. Pers. Prop. pp. 680, 681. 
 
 13 citations last, supra. And see Alsop v. Com. Ins. Co., 1 Sum- 
 ner, 451; Carson v. Marine Ins. Co., 2 Wash. C. C. 468; Haight v. 
 De la Cour, 3 Camp. 319; Feise v. Aquilar, 3 Taunt. 506; Holmes 
 V. Charlestown Mut. Fire Ins. Co., 10 Met. (Mass.), 211; Cush- 
 man v. North Western Ins. Co., 34 Me. 487; Harris v. Eagle Ins. 
 Co., 5 Johns. 368. 
 
 i« May, Ins. § 32; Post v. Hampshire Mut. Ins. Co., 12 Mass. 555; 
 Cushman v. North Western Ins. Co., 34 Me. 487. 
 
§ 124.] CONSUMMATION OF THE OONTBAOT. 211 
 
 been held that these clauses are only priina facie evidence, 
 and are open to explanation. As to whether wager con- 
 tracts are enforceable the authorities in this country are 
 not in full agreement." But the better opinion, in accord- 
 ance with sound morality and the demands of public 
 policy, is against the enforcement of such contracts, how- 
 ever christened, or in whatever guise they may appear. 
 
 Mr. Bishop in his work on Contracts, uses this lan- 
 guage: "And on a just view of things, a judge would 
 better serve the state, and more adorn his ofiSce, to go round 
 with blacking and brush shining the boots of the officers 
 of his court, than to sit on the bench enforcing a wager." ^^ 
 
 An interest policy is one in whif jii ^7 ^^^ tprmc^ ihe, in- 
 sured has an interest in the subject matt er of the i nsurance 
 an d hence a risk constituting the basis for I'n/^oTmnity in 
 caa e of loss .^^ 
 
 A time policy, as ils nam o inrlit^ntpg^ ig nnp in which th e 
 duratio n of the risk is fixed by definite periods of tim e. 
 
 A j }oyage policy is one in which the duration of the ris k 
 is determined by g'onn'rap^iinai limita^ qc t^nm Mow York 
 to Glasgow, and is applicable, also, to transportation by 
 land as well as by water.** 
 
 § 124. Consummation of the contract. — ^As a general 
 rule, dftliverv of a written contract^ whfitber a spficialtv m 
 a sim ple pon trac t, is es sential to its completion fmd ^"ij'^- 
 ity . Otherwise stated, if the parties intend to reduce the 
 
 15 Wincliester v. Nutter, 52 N. H. 507; Ball v. Gilbert, 12 Met. 
 395, 399; Wilkinson v. Tousley, 16 Minn. 299; Hill v. Kidd, 43 
 Cal. 615; Merchants' Savings, etc., Co. v. Goodrich, 75 111. 554; 
 Boughner v. Meyer, 5 Colo. 71; Gridley v. Dorn, 57 Cal. 78. 
 
 i«Bish. Cont. (2nd Enl. Ed.), § 531. 
 
 "May, Ins. § 33; 3 Kent, Com. pp. 371, 277, 278. 
 
 i»May, Ins. S 34; Boehem v. Combe, 2 M. & S. 172. 
 
212 CONSUMMATION OF THE CONTKACT. [§ 124. 
 
 agreement to writing, it w ill not take effect until deliver y 
 of the inter <^ftfi writtfi-n instrmnPTi t.^* There is, however, 
 authority for saying that there are exceptions to the gen- 
 eral rule; that parties may be bound by an agreement, if 
 perfect in all other respects, even where it is thereafter to 
 be reduced to writing, in the absence of a stipulation to 
 the contrary. But the fact that the parties do intend a 
 reduction of their agreement to writing, wiU be regarded 
 as strong evidence that they did not consider the unwritten 
 negotiations aa constituting a complete and binding con- 
 tract.^" 
 
 Insurance contracts, more frequently than most others, 
 fall within the exception to the general rule. This may 
 be due to the character of these contracts, and the 
 machinery of insurance companies and their agencies. 
 Where negotiations for insurance have been had, the ques- 
 tion sometimes arises whether such negotiations have re- 
 sulted in an agreement binding upon the parties, and in 
 some cases this question is not readily solved. The test 
 applied by the courts is : Have the parties come to a definite 
 agreement upon all the elements and terms of the con- 
 tract, so that nothing remains to be done, but to fill up 
 and deliver the policy by the insurers, and to pay the 
 premium by the insured ? If yea, the contract is consum- 
 mated, in the absence of a stipulation by the parties, and 
 
 "Bish. Cont. (2nd Enl. Ed.), § 349, and cases cited. 
 
 2« Waldo's Pollock, Cont. pp. 41, 42; Pratt v. Railroad Co., 21 
 N. Y. 305; Blaney v. Hoke, 14 Ohio St. 292; Bell v. Offutt, 10 
 Bush, 632; Blight v. Ashley, 1 Pet C. C. 15; Wharton v. Stough- 
 tenburgh, 35 N. J. Eq. 266; Paige v. PuUerton Woolen Co., 27 Vt. 
 485; Ridgway v. Wharton, 6 H. L. C. 238, 264, 268; Lyman v. 
 Robinson, 14 Allen, 242, 254; Brown v. Railroad Co., 44 N. Y. 79, 
 86; Methudy v. Ross, 10 Mo. App. 101, 106. 
 
§ 124.J CONSUMMATION OF THE CONTEACT. 213 
 
 of a law, making delivery of the policy essential to the 
 validity of the agreement; if nay, the contract is not com- 
 pleted.*^ "Where the terms are all agreed upon by the 
 parties, the liability of the insurers may become fixed be- 
 fore the issuance of the policy, so that the insured will 
 be entitled to recover for a loss happening in the interim; 
 and if the insurers refuse to issue a policy in pursuance of 
 the agreement, when the rights and interests of the insured 
 require it, a court of equity will compel its issuance.** 
 
 "When the negotiations are conducted by written cor- 
 respondence through the mail, the time when the contract 
 is consummated so as to bind both parties has been much 
 discussed, and developed some difference of judicial 
 opinion. The same rule that governs other contracts thus 
 negotiated, and which is fully treated in works specially 
 devoted to the subject of contracts, applies to insurance 
 negotiations and contracts as well. 
 
 Where delivery of the policy is essential to the con- 
 summation of a contract, the question occurs: "What con- 
 stitutes delivery? Obviously, an actual manual transfer 
 from one party to the other will constitute a delivery. 
 But this is not a necessary formality. It has been well said 
 that the "delivery may be by any act intended to signify 
 
 21 May, Ins. § 44; Hallock v. Commercial Ins. Co., 2 Dutch. 
 (N. J.), 268, 3 Dutch. (N. J.), 645; Flint v. Ohio Ins. Co., 8 Ohio, 
 501; Am. Home Ins. Co. v. Patterson, 28 Ind. 17; Xenos v. Mark- 
 ham, 2 Law Kepts. (H. L.), 296; Kelly v. Commonwealth Ins. 
 Co., 10 Bosw. 82; Com. Mut. Marine Ins. Co. v. Union Mut. Ins. 
 Co., 19 How. 318; New England, etc., Ins. Co. v. Robinson, 25 Ind. 
 536; Davenport v. Peoria, etc., Ins. Co., 17 Iowa, 276. 
 
 22 May, Ins. § 45; Kohne v. Ins. Co. of North America, 1 Wash. 
 (U. S. C. C), 93; Goodall v. N. E. Mut. Fire Ins. Co., 5 Fost. 
 (N. H.), 169; and see, also, citations last supra. 
 
214 INSURABLE INTEREST. [§' 126. 
 
 that the instrument shall have present validity."^' TliP 
 question of del ivery is often one of intention." 
 
 Mr. Justice Dodderidge, in his Sheppard's Touchstone, 
 quaintly defines delivery thus: "D divery is either aC ' 
 tual, i. e., b y doing something and saying nothing ; or else 
 verbal, i. e., b y saying something and doing nothing ; or it 
 may be by both; and either of these may make a good deliv- 
 ery and a perfect deed. ' ' " 
 
 § 125. Subject-matter of the contract. — The field of in- 
 surable property is very broad. Any property which is 
 the subiect of lawful ownership or use. a Tid which is law- 
 ft jly employe d, may be insured. The doctrine is well 
 stated by May as follows : "Wh atever has an appreciable 
 p ecuniarv value, and is subject to loss or deteriorati on, 
 or of which one may be deprived, or which he may fail 
 to realize, whereby his pecuniary interest is or may be pre- 
 judiced, may properly constitute the subject matter of 
 insurance."** This statement, it will be seen, embraces 
 every species of property, real, personal, and mixed; 
 corporeal and incorporeal; in esse or in posse; and in pos- 
 session or expectancy. The doctrine thus broadly and com- 
 prehensively stated is fully sustained by the authorities.^' 
 
 § 126. Insurable interest. — That the insured must have 
 snTTn» inRTrrahle interest in the Subject matter of the insur- 
 
 "Hallock V. Com. Ins. Co., 2 Dutch. (N. J.), 268; s. c. 3 Dutch. 
 (N. J.), 645. 
 
 2* May, Ins. § 60; Whlttaker v. Farmers' Union Ins. Co., 29 Barb. 
 312; Kentucky Mut. Co. v. Jenks, 5 Ind. 96. 
 
 s» 1 Shep. Touch. 57. 
 
 "May, Ins. S 72. 
 
 "May, Ins. §| 71-73; WUson v. Hill, 3 Met. 66; Carpenter v. 
 Prov. Wash. Ins. Co., 16 Pet. 495; Elllcott v. United States Ins. 
 Co., 8 Gill & Johns. (Md.), 166; Carter v. Boehm, 3 Burr. 1095; 
 Lucena t. Crawford. 2 New Reo. 301. 
 
§' 126.] INSURABLE INTEREST. 215 
 
 ance is a cardinal and well established principle. Without 
 such interest the contract would be essentially a gambling 
 contract, and hence iavalid.^' This rule, it should be un- 
 derstood, applies only to an insurance ^'gzLtb" T^QTioflt nf a 
 par ^ to the contr act. A person having no insur able 
 inte rest in the subject-matter may infinrfi In bifi ff^m nnnif 
 for the benefit of the true owner of the property.^ ' It is 
 not easy to define with accuracy what constitutes an in- 
 surable interest, so as to relieve the question from doubt in 
 all cases that may arise, but it may suffice for practical 
 purposes in general to say, that the insured must have such 
 an interest [^ t>io gn>>jAPt.TT^f), f,t,er as. in case of its -destgae- 
 tin^i , m- in-jyT ^ he would suffer pecuniary damag e. Within 
 this rule the property, title, or interest, of the insured in 
 or to the subject-matter of the insurance may be absolute 
 or qualified, general or special, legal or equitable, existent 
 or potential, present or prospective. Numerous examples 
 are furnished by the books.'" From a legitimate practical 
 application of this doctrine, it logically follows that there 
 may be separate insurable interests in the same property, 
 as the legal, and equitable, title or interests, and in other 
 cases embraced in the principle stated.'^ 
 
 2s Supra, 5 123; May, Ins. §§ 33, 74; 1 Sch. Pers. Prop. p. 682; 1 
 Bouv. li. Diet. "Insurable Interest;" 3 Kent, Com. p. 262. 
 
 2»1 Sch. Pers. Prop. p. 684; Fland. Fire Ins. 378; Turner v. 
 Burrows, 8 Wend. 144; Work v. Merchants', etc.. Fire Ins. Co., 11 
 Cush. 271. 
 
 30 May, Ins. § 76, ei seg.; 3 Kent, Com. p. 262, et seq.; 1 Sch. 
 Pers. Prop. p. 682, et seg.; Bouv. L. Diet. "Insurable Interest." 
 
 31 May, Ins. § 81, et seq.; 1 Sch. Pers. Prop. pp. 682-684; Strong 
 V. Manuf. Ins. Co., 10 Pick. 40; Columbian Ins. Co. v. Lawrence, 
 2 Pet. 725; Allen v. Franklin Ins. Co., 9 How. Pr. Rep. 501; 
 Franklin Ins. Co. v. Findlay, 6 Whart. (Pa.), 483; Niblo v. North 
 Am. Ins. Co., 1 Sandf. 551; Fletcher v. Commonwealth Ins. Co., 
 18 Pick. 419; Tongue v. Nutwell, 31 Md. 302; Franklin Ins. Co. v. 
 
216 WAREANTIES AND EEPEESENTATIONS. [§ 127. 
 
 To entitle the insured to recover on his contract, he must 
 have had an interest in the subject- matter at the ti me 
 whe n it was c onsumma ted, and also where the los s occurred .'" 
 It follows that alienation of the insured property after 
 insurance, continued until occurrence of the loss, will bar 
 a recovery of the party insured ; and it has been held that 
 alienation of title will have this effect, even although the 
 insured should regain title and hold it at the time of the 
 loss.'' But the soundness of this decision is much 
 doubted'* 
 
 Modem policies quite generally, if not in all cases, con- 
 tain stipulations in regard to the assignment of the policy, 
 and the alienation of the subject-matter of insurance. 
 These stipulations, as construed by the courts, determine 
 the rights of the respective parties. 
 
 § 127. Warranties, and representations. — Statements, 
 provisos, conditions, by-laws, and stipulations of various 
 kinds, when found in the policy and expressly made part 
 of it, become warranties, and are so held and treated by 
 the courts. A warrant y, it is held, is a n as^reement in the 
 nat ure of a condition preced ent, an d must be strictly com - 
 p lied with ." The existence or non-existence of a warranty 
 
 Drake, 2 B. Mon. (Ky.), 47; Abbott v. Hampden Mut. Fire liis. 
 Co., 30 Me. 414; Harris v. York Mut. Ins. Co., 50 Pa. St. 341; and 
 many other cases, illustrating the application of the doctrine, 
 too numerous for citation. 
 
 82 May, Ins. § 100; 1 Sch. Pers. Prop. p. 685; Howard v. Albany 
 Ins. Co., 3 Denio, 301; Fowler v. Indemnity Ins. Co., 26 N. Y. 422; 
 Lynch v. Dalzell, 3 Bro. P. C. 492; Sadler's Co. v. Babcock, 2 Atk. 
 534. 
 
 ssCockerell v. Cincinnati Ins. Co., 16 Ohio, 148. 
 
 8* May, Ins. §§ 101, 265, and cases there cited; Worthington v. 
 Bearse, 12 Allen, 382; Hooper v. Hudson River Ins. Co., 17 N. Y. 
 424, 426; West Branch Ins. Co. v. Helfenstein, 40 Pa. St. 289. 
 
 so Daniels v. Hudson River Fire Ins. Co., 12 Cush. 416; Ripley 
 
§ 127.] -WARRANTIES AND REPRESENTATIONS. 217 
 
 will not depend in any case upon a particular form of 
 words; but any statement or stipulation, upon the literal 
 truth or fulfillment of which it is apparent that the parties 
 intended to rest the validity of the contract, will constitute 
 a warranty." And whether the fact stated or stipulation 
 made be material to the risk, or otherwise, will not affect 
 the question of warranty.*^ 
 
 Of warranti es there are two classes, a ffirmative , and 
 y romisso rv. The former con cern thfi present, being such 
 as affirm the existence or non-existence of some fact at the 
 time of insurance; whUe the lat t^er ^ctnk to the future, r e- 
 quiring s omething to be done or omitted by the insur ed 
 durin g the continuance of t^° '^"^ A b reach of eit her 
 wiU_ajQid_the_crairact.'* 
 
 A representatjnn is definefl aa "a statement incident al 
 to ttie__contraot, re lative to so me fact having reference 
 ti^er eto. and u pon the faith of which thft onwtvap.t is m - 
 te red in to.""' The difference between a warranty and a 
 representation is, in brief, this; the former enters into 
 and be comes an essential part of the cn ntrac.tj whila the 
 latter is a statement incidental or collateral to the contra ct. 
 
 V. Mtna, Fire Ins. Co., 30 N. Y. 136; Campbell v. N. B. Mut. Life 
 Ins. Co., 98 Mass. 381; May, Ins. § 156, et seq.; 3 Kent, Com. p. 
 289; 1 Sch. Pers. Prop. pp. 686-688. 
 
 3« Citations last supra; and Westfall v. Hudson River Fire Ins. 
 Co., 2 Duer, 490, 494; Kingsley v. N. E. Mut. Fire Ins. Co., 8 Cush. 
 393. 
 
 S7 Sayles v. North Western Ins. Co., 2 Curtis (U. S. C. C), 612; 
 New Castle Fire Ins. Co. v. McMorran, 3 Dow. P. C. 255; With- 
 erell v. Marine Ins. Co., 49 Me. 200; Pawson v. Watson, Cowp. 
 785; Anderson v. Fitzgerald, 24 Eng. L. & Eq. 1; 4 H. of L. Cas. 
 484. 
 
 88 Citations supra and Borradaile v. Hunter, 5 M. & G. 639; 
 Jennings v. Chenango Co. Mut. Ins. O).. 2 Denio, 75; Stout v. City 
 Fire Ins. Co., 12 Iowa, 371._ 
 
 39 May, Ins. § 181. 
 
218 WAEBANTIES AND BBPEESENTATIONS. [§ 127. 
 
 If an a.fe\rma.tive representation be material to the risk. 
 and substanti ally false, the contract cannot be enforced, 
 and the breach of a material promissory representation 
 will have the same effect. But, as already stated, under 
 warranties the question of materiality does not arise. 
 They must be strictly and literally complied with, whether 
 material or immaterial to the risk, while a substantial 
 compliance with a representation in such particulars as 
 may reasonably be supposed' to have influenced the insur- 
 ers in consummating the contract, will suffice.** 
 
 Representations, like warranties, are of two kinds, 
 affirmative and promissory. The former are allegations 
 of facts existing at the time the contract is made; the 
 latter are statements or promises in regard to matters in 
 the future during the term of insurance, which may affect 
 the risk.*^ The representations of the insured should be 
 full, as well as true. That is, every fact material to the 
 risk which is known to the insured, and which he believes, 
 or has reason to believe, is material must be disclosed. 
 A failure in this respect, termed in the law of insurance 
 concealment, wiU be treated as a fraudulent suppression 
 of the truth, and invalidate the contract. And facts ma- 
 terial to the risk, if called for by the insurer, must be dis- 
 closed by the insured in his application, even though he 
 
 *oMay, Ins. §§ 181-184; 1 Sch. Pers. pp. 686-688; 3 Kent, Com. 
 p. 282, et seq.; Daniels v. Hudson River Fire Ins. Co., 12 Cush. 
 416; Campbell v. N. E. Mut. Life Ins. Co., 98 Mass. 381; Nlcol v. 
 Am. Ins. Co., 3 Wood & M. (U. S. C), 529; Wainwright v. Bland", 
 2 Mad. & Rob. 481, 1 Mees. & W. 32; Abbott v. Howard, Hayes 
 (Irish), 381; Kimball v. .^tna Ins. Co., 9 Allen, 540; Tyler v. 
 .lEtna Ins. Co., 12 Wend. 507; Protection Ins. Co. v. Harmer, 2 
 Ohio St 452; Insurance Co. v. Chase, 5 Wall. 509; Tesson v. At- 
 lantic Mut. Ins. Co., 40 Mo. 33; Mut. Ins. Co. v. Dale, 18 Md. 26; 
 Gates V. Madison Co. Mut. Ins. Co., 5 N. Y. 469. 
 
 « May, Ins. § 182. 
 
§■ 128.] SPECIAL PROVISIONS OP THE CONTBACT. 219 
 
 do not think them material ; and when expressly made part 
 of the contract, the representations, whether voluntary or 
 in response to questions, become wai;ranties.*'' 
 
 § 128. Special provisions of the contract. — Modem in- 
 insuranee policies contain numerous provisions, and have 
 become so complicated in their structure that a full under- 
 standing and proper construction of them often requires 
 considerable legal acumen, and careful study. The prac- 
 tice of accepting them without intelligent examination, or 
 competent legal advice, has been the subject of judicial 
 animadversion. In Woodbury Savings Bank v. Chhrter 
 Oak Ins. Co.*^ it was said in substance by the court, that 
 before executing almost any other instrument of equal 
 perplexity, the parties would deem it necessary to take 
 the advice of counsel; that questions frequently arise as 
 to the proper construction of the terms used, which divide 
 the opinion of the most learned jurists. 
 
 For a discussion of the special provisions of insurance 
 policies separately, and in detail, reference must be had 
 to works specially devoted to the law of insurance. Only 
 the classes, and the general rules governing each class, 
 can be noticed in this connection. 
 
 There are generally two classes of provisions or stipu- 
 lations in the modem policy; one of which embraces mat- 
 ters before, and the other, things done or omitted after, 
 the loss. Th e purpos e ^ of the former is to define and 
 determine th e risk, including title, alienation, locatio n. 
 
 occu pation, use, character, habits, mode of life, o r what- 
 
 /- — " 
 
 *2 May, Ins. § 200, et seq.; Lindeneau v. Desborough, 3 Man. & 
 Ry. 45; Vose v. Life and Health Ins. Co., 6 Cush. 42; Miles v. 
 Conn. Mut. Life Ins. Co., 3 Gray, 580; Gladstone v. King, 1 Maule 
 & S. 35. 
 
 *3 31 Conn. 517. 
 
220- SPECIAL PEOVISIONS OP THE CONTRACT. [§ 128. 
 
 ever may affect the risk; the offic e of the l atter_is to pre- 
 scribe the rights and duties of the respefitive parties- aiter 
 a loss, and the mode of enforcing the c ontract. The first 
 class, it will be seen, affect the substance of the contract, 
 determining its validity, the liability of the insurers, and 
 the security of the insured; while the second class apply 
 only when the rights and liabilities of the respective par- 
 ties have become fixed by the terms of the contract, and 
 relate to the formalities prescribed for observance by the 
 insured in enforcing his claim for indemnity. By reason 
 of their superior importance, the rule has become estab- 
 lished that the first class of stipulations will be more 
 strictly construed than those of the second class. The 
 latter, however, must be substantially complied with." 
 
 There are two provisions which it may be well to notice 
 specially in passing; the one concerning limitation of an 
 action on the policy; and the other in reference to arbitra- 
 tion. It is quite common for the parties to a contract of 
 insurance to create for themselves and the contract a limi- 
 tation unknown to the statute, by inserting a provision in 
 the policy that no action upon it on a claim for indemnity 
 shall be maintained, unless it be commenced within a speci-. 
 fied time after the loss, or after notice of the loss. Such a 
 provision is held to be valid, binding the insured.'" 
 
 «May, Ins. § 216, et seq.; Northwestern Ins. Co. y. Atkins, 3 
 Bush (Ky.), 328; Walsh v. Washington, etc., Ins. Co., 32 N. T. 
 427; Sexton v. Montgomery Ins. Co., 9 Barb 191; Lycoming, etc., 
 Ins. Co. V. Updegraff, 40 Pa. St. 311. 
 
 iBjiay, Ins. § 478; Amesbury v. Bowditch Mut. Fire Ins. Co., 6 
 Gray, 596; Brown v. Roger Williams Ins. Co., 7 R. I. 301, 5 R. I. 
 304; Peoria Ins. Co. v. Whitehill, 25 111. 466; North Western Ins. 
 Co. V. Phoenix Oil and Candle Co., 1 Pa. St. 449; Wilson v. iEtna 
 Ins. Co., 27 Vt. 99; Bruce, et ux. v. Savannah Mut. Ins. Co., 24 
 Ga. 97; Portage County Mut. Ins. Co. v. West, 6 Ohio, 599; Car- 
 
§ 128.] SPECIAL PKOVISIONS OP THE . CONTRACT. 221 
 
 Coupled with this provision is the further one, that the 
 lapse of the prescribed period of limitation without com- 
 mencing an action, shall be conclusive evidence against the 
 plaintiff's claim in an action for its enforcement subse- 
 sequently commenced. These stipulations, combined, not 
 only create for the parties and contract a special limita- 
 tion, but also establish for the parties and the court, a new 
 and special rule of evidence for an action on the policy. 
 Both of these provisions are held to be valid.*' :The other 
 provision to which attention is directed is, that in case of 
 loss, and of disagreement upon the terms of adjustment, 
 all matters in dispute shall be submitted to arbitration. 
 But it is generally held by the courts that this provision 
 has no binding force. The parties may voluntarily arbi- 
 trate their differences, and this course will be approved by 
 the courts; but they cannot, by an agreement between 
 themselves in advance, deprive the courts of their juris- 
 diction conferred by law. The parties are not above the 
 law, or in all respects a law unto themselves. Moreover, 
 as the courts have power to compel specific performance 
 of contracts, if the provision in question were held valid, 
 they might be called upon to enforce it, thus obtaining judi- 
 cial cognizance of a matter as to which the stipulation of 
 parties had denied them jurisdiction. This result, it is 
 said in Hill v. noUister," would place the parties in "the 
 
 ter V. Humbolt Fire Ins. Co., 12 Iowa, 287; Rlddlesbarger v. Hart- 
 ford Ins. Co., 7 Wall. 386. 
 
 48 Citations last supra, and Cray v. Hartford Ins. Co., 1 Blatchf. 
 280; Riddlesberger v. Hartford Ins. Co., 6 Wall. 386; Fullam v. 
 New York, etc., Ins. Co., 7 Gray, 61; Schroeder v. Insurance Co., 
 2 Phil. Pa. 286. 
 
 *^ 1 Wilson, 129. And see May, Ins. § 492 ; Scott v. Avery, 2 
 Eng. L. & Eq. 327, 5 H. L. C. 311; Scott v. The Phoenix Ass'n Co., 
 1 Stuart (Lower Canada), 152; Robinson v. Georges Ins. Co., 17 
 
222 MUTUAL INSURANCE. [§ 129. 
 
 ludicrotis attitude of coming into court for the purpose of 
 compelling each other to keep out." 
 
 But, while the courts cannot, by a stipulation in the 
 policy, be deprived of jurisdiction, or the insured of an 
 action at law to determine his right of recovery, a provision 
 in the contract for the adjustment of damages, or other 
 subordinate particulars, not affecting the merits of the 
 claim for indemnification, will bind the parties, and be 
 enforced by the courts.*' 
 
 § 129. Mutual insurance. — ^It has been already stated *' 
 that mutual insurance differs in some respects from other 
 kinds of insurance. The leading peculiarity of mutual in- 
 surance is, that each person insured becomes a member of 
 the company insuring, participates in the management, 
 shares in the profits and losses of the business, is clothed 
 with the rights, and subject to the liabilities, of a stock- 
 holder. "He is at once insurer and insured." The ac- 
 ceptance of a policy by a party makes him a member of 
 the company, and he thereby becomes bound by its rules 
 which he is presumed to know/* But neither a by-law, 
 
 Me. 131; Commercial Union Ins. Co. v. Hocking, 115 Pa. St. 407; 
 Crossley v. Conn. Fire Ins. Co., 27 Fed. Rep. 30. 
 
 *8 May, Ins. § 493 ; Braunstein v. Accidental Death Ass'n Co., 1 
 Best & Smith, 72; Tredwen v. Holman, 1 Hurl. & C. 72; Lowndes 
 V. Stamford, 18 Q. B. 425; Trott v. City Ins. Co., 1 Cliff. (U. S. 
 C. Ct.) 438; Soars v. Home Ins. Co., 140 Mass. 343. 
 
 «» § 122 supra. 
 
 eoMay, Ins. §§ 548, 552; 1 Sch. Pers. Prop. pp. 678, 679; Bouv. 
 L. Diet. "Insurance Company;" Mygatt v. N. Y. Prot. Ins. Co., 21 
 N. Y. 52; Ohio Mut. Ins. Co. v. Marietta Woolen Factory, 3 Ohio 
 St. N. S. 348; Union Ins. Co. v. Hoge, How. (U. S.), 35; White v. 
 Havens, 2 How. Pr. Rep. 177; Mitchell v. Lycoming Ins. Co., 51 Pa. 
 St. 402; Coles v. Iowa State Mut. Ins. Co., 18 Iowa, 426; Diehl v. 
 Adams Co. Mut. Ins. Co., 58 Pa. St. 443; Sands v. Hill, 42 Barb. 
 65; Traders' Mut. Ins. Co. v. Stone, 9 Allen (Mass.), 483; Currie 
 
§ 129.] MUTUAL INSUEANCE. 223 
 
 nor any other act of the company, affecting his contract or 
 relation to the company, passed or done without his con- 
 sent, will bind hipa."^ 
 
 There are noticeable differences between a joint stock, 
 and a mutual, insurance company in respect to capital. 
 In the former, the capital is limited in the act of incorpor- 
 ation; while in the latter, it is ordinarily unlimited, de- 
 pending upon the amount earned by the company and 
 invested for the purposes of its business. The former, 
 like other joint stock companies with a cash capital, issues 
 transferable shares representing the capital; while in the 
 latter, the capital is made up by what are termed ' ' deposit 
 notes," by premiums paid on insurance, and by the busi- 
 ness earnings of the company."^ In addition to the de- 
 posit notes given to make up the capital stock of the com- 
 pany, and assessable to pay losses, notes are sometimes 
 given to the company in advance for premiums, usually 
 called "stock notes," made payable in terms by insurance 
 from time to time, as the makers require. The former 
 class are subscription notes to the capital stock of the 
 company, are held for the security of dealers, are negotia- 
 ble, or collectible for the payment of losses or debts, and 
 valid obligations to the full amount thpreof, whether any 
 premiums have been actually earned or not, while in the 
 latter class the makers are only liable for the pro rata 
 
 V. Mut. Ass'n Soc, 4 H. & M. (a.), 315; Fell v. McHenry, 42 Pa. 
 St. 41; New England Mut. Fire Ins. Co. v. Belknap, 9 Cush. 140. 
 
 "New England Mutual Fire Ins. Co. v. Butler, 34 Me. 351; 
 Hamilton Mut. Ins. Co. v. Hobart, 2 Gray, 543; Insurance Co. v. 
 Connor, 17 Pa. St. 136; Great Falls Mutual Fire Ins. Co. v. Har- 
 vey, 45 N. H. 292. 
 
 B2l Sch. Pers. Prop. p. 678; May, Ins. § 549; Fland. Fire Ins. 
 18, 19; Cumberland Valley Mut Prot. Co. v. Schell, 29 Pa. St. 
 31; Sun Mut. Ins. Co. v. Mayor, 8 Barb. 450; Corn v. MuL Assur- 
 ance Co., G Crabbe, 192. 
 
224 MUTUAL INSUEANCB. [§ 129. 
 
 share of such losses as may occur upon risks thereafter 
 assumed, in common with all other premium notes held by 
 the company. The former, being payable absolutely, are 
 subject to the Statute of Limitations, while the latter, being 
 payable on a contingency that may never happen, are not, 
 as a whole, subject to the statute, but only such portion of 
 them as may be called for, and from the time of the call." 
 
 BSMay, Ins. § 549; 1 Sch. Pers. Prop. p. 680; Dana v. Munro, 38 
 Barb. 528; Ewell v. Crocker, 4 Bosw. 22; Bell v. Shilley, S3 Barb. 
 610; Mclntyre v. Preston. 5 Gilm. (111.), 48; White T. Haight. 
 16 N. T. 310; Tuckerman v. Brown, 33 N. T. 297. 
 
§ 130.] liEGACIBS, DEFINITION, AND CLASSSa 225 
 
 CHAPTEB Xn. 
 
 LEGACIES AND DISTRIBUTIVE SHARES. 
 
 LXOACIES. 
 
 1 iiO. Definition, and principal classes. 
 
 131. Minor divisions, rules and Incidents. 
 
 132. Abatement, ademption, ipiayment and satisfaction. 
 
 DISTBIBUTrVi: SHABE3. 
 
 133. Defined and explained. 
 
 Le gacies and distributive shares, being species of ineor - 
 po real personal property , are legitimate subjects of notice 
 in this treatise. 
 
 I. Legacies. 
 
 § 130. Definition and principal classes. — ^A legacy is a 
 testamentary gift of perso nal proper ty. The word "be- 
 quest" has the same significance; and its verb "bequeath" 
 is generally used in wills, the substantive "legacy" having 
 no corresponding verb.^ 
 
 Legacies naturally range in three general classes, 
 namely, general, demonstrative, and specific. 
 
 1. Getieral. — A general legacy is one whic h giT^ply pi-irnp 
 a sum of money, or other p roperty, withnnt fnrthfir ^p- 
 scrip tion, and, conseque ntly without limiting the subjec t 
 of the gift to _amy particular portio n_of ^ the estat e^J]i_cx- 
 clusion of other portions of the same kind. 
 
 2. Demonstrative. — A legacy of this class is briefly de - 
 fine d, a gift of a general legacy to be drawn from a speci fic 
 
 iSch. Pers. Prop. p. 328; Bouv. L. Diet. "Legacy;" O'Hara's 
 Wig. Wills, p. 330, et seq.; And. L. Diet "Legacy." 
 
 15 
 
226 LEGACIES, DEFINITION, AND CLASSES. [§' 130. 
 
 fund. If the fund fails, the legacy becomes a charge upon 
 the general assets. 
 
 3. Specific. — A specific legacy is the gift of a thing in 
 specie, anrl not nf its value.^ In other words, it i s a bequest 
 of a sp ecified part of a testator's personal estate^ distin- 
 guished from all others of the same kind. " 
 
 Between general and specific legacies there is this im- 
 portant difference: In the latter, if the testator do not 
 leave the specific thing bequeathed t he gift fails altogether , 
 the legatee having no claim on the estate at large in virtue 
 of the legacy. But if th e specific thing be found a mon g 
 the assets ^ the legatee will be entitled to it without diminu- 
 tion, or contribution by reason of a deficiency in the estate 
 to pay all fee legacies in fu ll.° A general legacy on the 
 other hand, is a charge upon the whole personal estate, 
 and must be paid in full if the assets be sufficient to satisfy 
 debts and legacies in full ; but in case the personalty be in- 
 sufficient for such purpose, the general legacy will abate 
 or be subject to contribution.* 
 
 Demonstrative legacies partake, in certain respects, of 
 the nature both of general, and specific legacies; of the 
 former, in that if the fund from which the legacy is to be 
 paid for any reason fails, the legatee will not lose his be- 
 
 2 0'Hara's Wig. Wills, p. 330; Underbill, Wills, pp. 557, 565; 
 1 Sch. Pers. Prop. p. 730; Will. Exrs. p. 340; 2 Maed. Ch. Pr. 
 pp. 7, 8; Coleman v. Coleman, 2 Ves. Jr. p. IGO; Tifft v. Porter, 
 8 N. T. 518; Ludlam's Estate, 1 Harris, 188; Walls v. Stewart, 4 
 Harris, 281; Malone v. Mooring, 40 Miss. 247; MlUens v. Smith, 
 1 Drew & S. (Ireland, Ch.), 204; Gilmer v. Gilmer, 42 Ala. 9. 
 
 8 1 Sch. Pers. Prop. pp. 730, 731; Will. Exrs. p. 350; 2 Williams' 
 Exrs., 1076, et seq.. Underbill, Wills, p. 554; Fountain v. Tyler, 9 
 Price, 94, 104; Purse v. Snaplin, 1 Atk. 414; Morris v. Thomson, 
 McCart. (N. J.), Ch. 493; Foote, Appellant. 22 Pick. 299; Ste- 
 phenson V. Dowson, 3 Beav. 342. 
 
 * Citations last supra. 
 
§ 131.] MINOH DIVISIONS, RULES, ETC. 227 
 
 quest, but may receive it from the general assets; of the 
 latter, in the particular that the legacy is not liable to 
 abatement upon a deficiency of assets to pay all the leg- 
 acies." 
 
 It should be observed in passing that the courts are 
 disinclined to construe legacies as specific, unless com- 
 pelled so to do by the clearly expressed intention of the 
 testator, for the reason that specific legacies are regarded 
 as "less consonant to reason and justice," and more liable 
 to render a provision of the testator ineffective, than gen- 
 eral legacies." 
 
 § 131. Minor divisions, rules and incidents. — In addi- 
 tion to the principal classes of legacies now briefly noticed, 
 there are several minor divisions, with rules and incidents 
 that require attention. 
 
 1. Cumul ative legac ies. — ^When the same, or a different, 
 amount of money, or other things, estimated by quantity, 
 is given to the same person more than once by will or 
 codicil, the question arises whether the several bequests 
 are to be construed as cumulative, or merely repetitions, 
 giving the beneficiary but one legacy. The rule of con- 
 struction governing such cases seems to be weU established, 
 that where the legacies are of the same amount, and in the 
 
 BSch. Pers. Prop. p. 732; O'Hara's Wig. Wills, p. 331; Un- 
 derbill, Wills, pp. 555, 556; Will. Bxrs., p. 357; Creed v. Creed, 11 
 Clark & F. 508; Coleman v. Coleman, 2 Ves. Jr. 640; 2 Wms. 
 Exrs. (6th Eng. Ed.), 1078. 
 
 6 O'Hara's Wig. Wills, pp. 333, 334; Will. Exrs. p. 349; Sibley v. 
 Perry, 7 Ves. 530; Smith v. Lampton. 8 Dana, 69; Brlggs v. Hos- 
 ford, 22 Pick. 288, 289; Chaworth v. Beech, 4 Ves. 555; Mayraunt 
 V. Davis, 1 Desaus. 202; Cuthbert v. Cuthbert, 3 Yeates, 486; El- 
 lis v. Walker, Ambler, 310; Walton v. Walton, 7 Johns. Ch. R. 
 264; Tifft v. Porter, 8 N. Y. 518; Enders v. Enders, 2 Barb. 362, 
 367. 
 
228 MINOR DIVISIONS, RULES, ETC. [§ 131. 
 
 same mstrument, it will be presumed that they are repeti- 
 tions of the same gift, and will be so adjudged, unless a 
 different intent is shown by the language of the instru- 
 ment, and the surrounding circumstances. But where the 
 legacies are not in the same instrument, or of the same 
 amount, the presumption is that they are cumulative, and 
 the legatee will take both, unless it be clearly shown that 
 the testator intended but one gift.'' 
 
 2. Residuary legacy. — ^A residuary bequest carries to 
 the legatee all the personal property of the testator which 
 he did not attempt to otherwise dispose of by his vrill, aii d 
 als o every thing that he did attempt to otherwise dispos e 
 o f, but ineffectually, as void and lapsed legaci es. This 
 effect results from a presumption in favor of the residuary 
 legatee, and a decided disinclination of the courts to adopt 
 a construction of wills which would result in partial in- 
 testacy.* 
 
 3. Vested, and contingent, legacies. — A vested lega cy 
 ia_oTiA that tjiVpg pfFpft^ nr hecnmes vested, on the death 
 of the testator; at testator's decease it becomes "a certa in 
 
 interest in a np'rtain pprgnn " A CO^tingent legacy OP 
 
 the other h and, is one the vesting of wh ic h depends up on 
 
 » Underbill, "Wills, pp. 568, 571; O'Hara's Wig. Wills, pp. 
 350-352; 1 Sch. Pers. Prop. p. 733; Will. Exrs. pp. 362, 363; 
 Suisse V. Lowther, 2 Hare, 424, 432, 433; Holford v. Wood, 4 Ves. 
 76; Manning v. Thessiger, 3 Mylne & K. 29; Ridges v. Morrison, 
 1 Br. Cr. Cas. 389; Yockney v. Hansard, 3 Hare, 620, 622; Lobley 
 V. Stocks, 19 Beav. 392; DeWitt v. Tates, 10 Johns. 156; Jones v 
 Creveling, Harr. N. J. 127; Masters v. Masters, 1 P. Wms. 424. 
 
 8 1 Sch. Pers. Prop. p. 732; O'Hara's Wig. Wills, pp. 349, 350; 
 Attorney General v. Johnstone, Amb. 577; Cowling v. Cowling, 
 26 Beav. 449; King v. Strong, 9 Paige, 105; Peay v. Barber, 1 Hill 
 Ch. (S. C), 95; Cambridge v. Roas, 8 Vesey, 12, 15; Leake v. 
 Robinson, 2 Mer. 363, 393; Reynolds v. Kortright, Beav. 417, 427. 
 
§ 131.] MINOE DIVISIONS, EtJLES, ETC '229 
 
 so me rnicertain person or event,.' If there be nothing in 
 the will clearly indicating a contrary intention, the legacy 
 will take effect at testator's decease, the presumption 
 being in favor of a vested, rather than a contingent, leg- 
 acy; and, in ease of ambiguity, the courts in construing 
 the will incline to a vested, in preference to a contingent, 
 interest.^* 
 
 It must not be understood, however, that the mere fact 
 that the legatee does not become entitled to the immediate 
 possession and enjoyment of the legacy at the death of the 
 testator, or at the time when legacies are payable by law, 
 necessarily makes it contingent, for two est ates or interests 
 m ay vest at testator's de ath, the one in possession arid the 
 ntht^v in ^^ppf»taTipy The enj oyment of the gift by the 
 Lega tee may be postponed for a limited period after tes - 
 tato r's death, and yet he a vpsted leyacy^ The intere st, 
 may ve st in right, although not in immediate possessi on." 
 
 4. Absolute, and conditional legacies. — These are nearly 
 allied to, and in some respects the same as, vested and con- 
 tingent legacies. An absolute legacy is an unnuaJified 
 testamentary gift . A co nditional legacy is a beques t 
 depending upon the occurrence or non-occurrence of an 
 
 »0'Hara's Wig. Wills, pp. 261-265; 1 Sch. Pers. Prop. pp. 
 737-738; Will. Bxrs. p. 358; Redf. Surr. p. 322. 
 
 10 Citations last supra, and see Guyther v. Taylor; 3 Ired. (N. 
 C), Eq. 328; Eldrldge v. Bldridge, 6 Cush. 51^; Devane v. Lar- 
 kins, 3 Jones (N. C), Eq. 377; Gill v. Weaver, 1 Dev. & B. (N. 
 C), Eq. 41; Burd v. Burd, 4 Pa. St. 182; Gilford v. Thome, 9 
 N. J. Eq. (1 Stock.), 702; Van Veohten v. Van Vechten, 8 Paige, 
 104; Domlnick v. Moore, 2 Bradf. Surr. 201; Newport v. Cook, 
 Td. 332. 
 
 11 0'Hara's Wig. Wills, p. 261; 1 Sch. Pers. Prop. pp. 739, 740; 
 Dayt Surr. p. 387, et seq. 
 
230 jimoB DIVISIONS, eules, etc. [§ 131. 
 
 micertain_eientr ^ which t be-legafy. will jvegt ^r he^ d e- 
 featedi'' ^ 
 
 There are two kinds of conditions, precedent and subse- 
 quent. The form er are those in which the vesting of the 
 legac y is postponed to. and made conditional upon , the 
 happening of some gi ven event, or the arrival of som e 
 specified time. The latter is a legacy which, though vested , 
 may be defeated Jby the happ^ing ^r not happening of 
 some f ntnre five nt.** 
 
 5. Lapsed legacies. — Laps e^is the failure of a testamen- 
 t ary gift, general ly caused by the death of the donee prio r 
 to that of the testator. But a legacy may lapse after the 
 death of the testator, by reason of a contingency, upon 
 which the vesting is conditioned, so that a general legacy 
 which never vests is deemed a lapsed legacy, whether the 
 lapse occurs before or after the testator's death.^* 
 
 Where the l egacy is to several persons .jointly, a laps e 
 will not occur u nless all the donees die prior to thft dea th 
 of the testator; but i t is otherwise if the legate pj^ t ^>p as 
 tenants_m_£^mon.^'' And a bequest to a class, as to the' 
 children of A., whether he be alive or dead, will not lapse 
 so long as any one of the class survives.^' 
 
 12 Will. Exrs. p. 358, et seq.; 1 Sch. Pers. Prop. p. 738; 1 Rop. 
 Leg. 645; Underbill, Wills, pp. 637, 641. 
 
 13 Citations last supra. 
 
 "O'Hara's Wig. Wills, p. 416; Underbill, Wills, p. 358, et seq.; 
 1 Scb. Pers. Prop. p. 735; Dayt. Surr. pp. 338-391; 2 Wms. Exrs. 
 1084; Fisk v. The Attorney Greneral, Law Rept. 4 Eq. 521; In re 
 Lewes' Trusts, Law Rep. 11 Bq. 236; Elliott v. Davenport, 1 P. 
 Wms. 83; Corbyn v. French, 4 Ves. 418; Wentwortb's Exrs. 2 
 Phlll. 261. 
 
 le Citations last supra. And see BuSar v. Bradford, 2 Atk. 220; 
 Paye v. Paye, 2 P. Wms. 489; Gardner v. Printup, 2 Barb. 83, 89; 
 Man V. Man, 2 Str. 905; Bagwell v. Dry, 1 P. Wms. 700; 2 Id. 400. 
 
 18 Underbill, Wills, Chap. XV; Sbuttleworth v. Greaves, 4 
 
§ 132.] ABATEMENT, ADEMPTION, ETC: 231 
 
 The lapsed legag£_w ill either fall into the r esit^miTn, or 
 be undisposed of by the will and subject to the law of dis- 
 tributions. The first alternative will be preferred in con- 
 struing the will, partial intestacy not being favored by the 
 courts.^' 
 
 It should be noticed that there is an important distinc- 
 tion between personal, and real, estate in regard to the 
 devolution of void and lapsed legacies. The former, it is 
 generally held, fall int-o the rPisidnnTti, while the latter de- 
 scend to the heirs." 
 
 § 132. Abatement, ademption, payment and satisfac- 
 tion. 
 
 1. Abatement. 
 
 We have seen that one of the limitations to the absolute 
 ownership of property, or, in other words, absolute prop- 
 erty in things, is the liability of one's property to appro- 
 priation in satisfaction of his just debts.^* The applica- 
 tion of this principle to legacies involves their partial or 
 total abatement when the assets are insufficient to pay all 
 the debts. The order of abatement is, first, general lega- 
 cies ; second, if there still be a deficiency, the demonstrative 
 and specific legacies. Demonstrative legatees must first 
 look to the demonstrative fund for payment, but if this 
 
 Mylne & C. 35; Doe d. Stewart v. Sheffield, 13 East, 526; Ander- 
 son V. Parsons, Greenl. 486; Sparhawk v. Buell, 9 Vt. 41; Hocker 
 V. Gentry, 3 Mete. (Ky.), 463; Knight v. Wall, Dev. & B. (N. C.) 
 Ii. 125; Stlres v. Van Rensselaer, 2 Bradf. Surr. 172; Carver v. 
 Oakley, 4 Jones (N. C), Eq. 85; Hawkins v. Everett, 5 Id. 45. 
 
 17 Dayt. Surr. pp. 439, 440; supra, § 131, sub. 2, and cases cited. 
 
 18 Cox V. Harris, 17 Md. 23, 31; Brown v. Higgs, 4 Ves. 708, 
 n. h.; Tongue v. Nutwell, 13 Md. 415; Faust's Adm'rx T. Birner, 
 30 Mo. 414. 
 
 10 Supra, % 5, sub. 5. 
 
S32 ABATEMKNT, ADEMPTION, ETC, [§ 132. 
 
 fond prove insufBcient for the purpose, the deficiency, in 
 common with general legacies, will be a charge upon the 
 general fund. A "demonstrative legacy," it is said, "has 
 the priority of right to the fund out of which it is directed 
 to be paid, as against all other claims except those of cred- 
 itors."^" A specific legacy is only liable to abatement in 
 case of a deficiency of assets to pay all the debts, after 
 abatement in full of general and demonstrative legacies.*^ 
 As already shown, it is not liable to contribution to- 
 wards a deficiency of assets to pay all the legacies in full." 
 
 2. Ademption. 
 
 Used in this connection, a demption means the revocation 
 or takin g awav of a leafaev. Specific legacies are adfifimp d 
 wh^ a^the subject of the gift is wholly lost, destroyed, or 
 disposed of by t he testator during his life, or when its 
 for m is so changed as not to remain in specie ." An ex- 
 ception to this rule is found in cases where the change in 
 the subject of the bequest is effected by operation of law, 
 instead of the act of the testator, or through other agency.** 
 
 so Underbill, Wills, p. 535; Will. Bxrs. p. 382; O'Hara's Wig. 
 Wills, p. 353, et seq.; Sellon v. Watts, 7 Jur. N. S. 134; 9 Weekly 
 Repr. 847. 
 
 " Will. Exrs. p. 382; Redf. Surr. p. 331. 
 
 t^Bupra, § 130. 
 
 28 TJnderhlll, Wills, pp. 556, et seq.; 1 Sch. Pers. Prop. 740, 741; 
 O'Hara's Wig. Wills, p. 361; Will. Exrs. p. 351; Ashbumer v. 
 McGuire, Br. C. C. 108; Durant v. Friend, 5 DeGex & Sm. 343; 
 Ford V. Ford, 3 Foster (N. H.), 212; Walton v. Walton, 7 Johns. 
 Ch. 258, 262; McKinnon v. Thompson, 3 Johns. Ch. 307; Badrick 
 V. Stevens, 3 Br. C. C. 431; Rider v. Wager, 2 P. Wms. 329, 330; 
 Donahue v. Lea, 1 Swan (Tenn.), 119; Havens v. Havens, 1 Sandt. 
 Ch. 324; Smith v. Jones, 4 Ohio, 115. 
 
 2* Partridge v. Partridge, Gas. 1 Talb. 226; Shaftsbury v. Shafts- 
 bury, 2 Vern. 747; Dingwell v. Askew, 1 Cox, 427; Richards v. 
 Humphreys, 15 Pick. 133, 135. 
 
§ 132.] ABATEMENT, ADEMPTION, ETC. 233 
 
 The questio n of ademption of general legacies is ordi - 
 na rily connected with advancements and portions. "While 
 the intention of the testator must govern, courts of equity 
 incline to treat advancements to a child by a father, or 
 one in loco parentis, as an ademption of a general legacy 
 theretofore given by his will, to the extent of the amount 
 advanced.*' In cases of doubtful intention, the courts 
 have received parol evidence, not for the purpose of di- 
 rectly affecting the will, or of varying or contradicting 
 the written instrument, but to establish independent facts 
 which may aid the court in discovering the testator's in- 
 tention.*' 
 
 3. Payment and satisfaction. 
 
 Wa TiavP! seen that a will sneaks from the time of testa- 
 t or's death.' ^ And it has been shown that if there be 
 nothing in the will, or extrinsic evidence, indicating a con- 
 trary intention of the testator, a legacy will take effect, or 
 become vested, at his decease.*' It follows that the title , 
 or rig ht, to such a legacy passes to the legatee on the deat h 
 of the_t gstator, subject to the payment of his debts, but t he 
 asse nt of the executor is reouisite to perfect the donee 's 
 title." The executor is regarded in equity as a trustee, 
 
 »1 Sch. Pers. Prop. pp. 741, 742; Underhlll, Wills, pp. 598, et 
 seq.; In re Pye, ex parte, 18 Ves. 140, 153; Hopwood v. Hopwood, 7 
 H. L. Cas. 728; Warel v. Lant, Prec. Ch. 182; Jenkins v. Powell, 
 2 Vem. 115; Scotton v. Scotton, 1 Str. 235; Carver v. Bowles, 2 
 Russ. & My. 301; Montague v. Montague, 15 Beav. 565. 
 
 28 Underhlll, Wills, p. 599; 1 Sch. Pers. Prop. p. 742; Kirk v. 
 Edows, 3 Hare, 509; Clark v. Jetton, 5 Sneed, 229; Paine v. Par- 
 sons, 14 Pick. 318; Swooper's Appeal, 27 Pa. St. 58; Wallace v. 
 Pomfret, 11 Ves. 542; Hall v. Hill, 1 Dru. & War. 94, 111-133. 
 
 27 Supra, 5 95, with citations. 
 
 28 Supra, § 131, sub. 3, with citations. 
 
 2» Underhlll, Wills, pp. 574, et seq.; 1 Sch. Pers. Prop. 744; 
 Redf. Surr. p. 318; Will. Bxrs. pp. 379, 380. 
 
234 ABATEMENT, ADEMPTION, ETC. [§ 132. 
 
 having a right to hold the legacy until after the payment 
 of the debts,'" but if he unreasonably withholds his assent, 
 a court of equity will compel him to yield it.*^ 
 
 The rule is quite general that an executor may have one 
 year in which to ascertain the condition of the estate, na- 
 ture and extent of assets, and the claims of creditors, be- 
 fore being compelled to pay legacies. He may, however, 
 pay or deliver the legacy prior to the expiration of the 
 year, or other limited period, but he will do so at his peril 
 should the assets prove insufficient to pay all the debts.'^ 
 
 As a general rule, a legacy by a debtor to his credit or 
 wh ich is of equal or gr eater amount than the debt, a nd 
 of the sam e character, and payable after the de bt becom es 
 due, will b e^ considered as a satisfaction of i t. But any 
 circumstances tending to rebut the pi-esumption that such 
 effect was intended by the testator, will be available to 
 prevent the application of the rule.'' 
 
 Whether a legacy by a creditdr to his debtor shall be 
 regarded as a release or discharge of the debt, will depend 
 upon the intention of the testator; and his intention must 
 be determined by the structure and language of the will, 
 under settled rules of construction, aided in doubtful cases 
 by parol proof of circumstances whereon to found infer- 
 ences and presumptions.'* 
 
 «» Citations last supra. 
 
 »i Citations supra; and 2 Wms. Exrs. p. 1238. 
 
 82 Underhill, Wills pp. 575, 576; O'Hara's "Wig. Wills, p. 343; 
 1 Sch. Pers. Prop. pp. 744-746; Will. Exrs. pp. 377-379; 1 Rop. 
 Leg. pp. 456, 457; 1 Sch. Pers. Prop. pp. 472, 473; Coppin v. Cop- 
 pin, 2 P. Wms. 291, 296; Keyling's Case, 1 Eq. Cas. Abr. 239, pi. 
 25; Orr v. Kaines, 2 Ves. Sen. 193. 
 
 88 Underhill, Wills, p. 443; 1 Id. pp. 539, 540, n. 6; Will. Exrs. 
 p. 366; Dayt Surr. pp. 395, 396; Williams v. Crary, 5 Cow. 370; 
 8 Id. 246; 4 Wend. 443. 
 
 8*2 Rop. Leg. 1064, 1065, 1070; Fitch v. Peckham, 16 Vt. 150; 
 
§ 133.] DISTRIBUTIVE SHAKES. 235 
 
 It is a commo n law doetrine that the appointment by a 
 cr editor of his debtor to be his executor, operates as a 
 
 Tplpgg^ pf *hc i^ehi fnr tlio voaann t >iat hv a. union Of th e 
 
 rig hts of debtor and creditor in one person, the debt woul d 
 no longer be the subject of an action at law, the_rHlfi-lifiing 
 that in suc h an action the same person ca nno t bo bot h 
 pla intiff and defendant. " But the same rule does not 
 apply in equity. There the executor is held to have paid 
 the debt to himself, and wiU be accountable for the amount, 
 as assets in his hands, to any party entitled to claim them.'" 
 It should be noticed that the rule of law in question does 
 not apply to the appointment of the debtor as administra- 
 tor, because that is the act of the law and not of the cred- 
 itor." 
 
 II. Distributive Shares. 
 
 § 133. Distributive shares defined and explained. — In 
 
 case of intestacy, after the payment of debts and expenses 
 of administration, the pe rsonal pro perty of intestate 
 passes to his next of kin under statutes of distribution . 
 The several portions thus distributed constitute what are 
 known in legal parlance as "distributive shares." The 
 statutes of distribution in the United States are based, in 
 
 Strong V. Williams, 12 Mass. 391; Van Ripper v. Van Ripper, 1 
 Green Ch. 1; Clarke v. Bogardus, 12 Wend. 67; Zelgler v. Eck- 
 hert, 6 Pa. St. 13. 
 
 35 Went. Exrs. 73, 74, 75; Stagg v. Beekman, 2 Edw. Ch. 89; 
 Berry v. Usher, 11 Ves. 87; Fox v. Fox, 1 Atk. 463; Needham's 
 Case, 8 Co. 135o; Cheetham v. Ward, 1 B. & P. 630; Waukford v. 
 Waukford, 1 Salk. 299. 
 
 36 Treakly v. Fox, 9 B. and C. 130; Strong v. Williams, 12 Mass. 
 391, 393; Cloud v. Cllnkinbeard, 8 B. Mon. 397, 399. 
 
 ST Waukford v. Waukford, 1 Salk. 299, 303, 306; supra, §§ 70, 
 90. 
 
236 DISTEIBUTIVB STTARTTj ^ , [§ 133. 
 
 large part, upon tlie English Statute of Distributions,' 22 
 and 23 Charles II., ch. 10. »« 
 
 It has been shown'" that the legal title to intestate's 
 personal property does not pass directly to the next of kin 
 on his death; th at title can accrue to them only through 
 t he medium of an administrato r. The lggal _ title pass es 
 t o the ad m^'"''°^""°^"^i on his appointment, in t^aat-fey the 
 purposes ftf administr ation, but tha npTft. nf Vi'ti, pntitlgrl 
 to distributive shares under the statute, h ave a vested in - 
 terest in the surplus after the payment of debts and ex- 
 penses of administration. 
 
 The statutes of the several States present some variety 
 in details, an examination of which would require more 
 space than the scope of this work wiU permit, but the gen- 
 eral principles now briefly stated apply to alL 
 
 »»2 Kent, Com. p. 420; 1 Sch. PersL Prop. pp. 747-750; Under- 
 hill. Wills, pp. 837, et seq. 
 >* Supra, i 70, and cases cited. 
 
§ 134.] STOCK AND STOCKHOLiDEBS. 237 
 
 CHAPTER XIII. 
 STOCK AND STOCKHOLDERS. 
 
 S 134. Stock, and shares of stock, defined. 
 
 135. Methods of acquiring title to stock. 
 
 136. Liability of stockholders. 
 
 137. Assets upon dissolution of the company. 
 
 We have already considered the organization and char- 
 acter of corporations, and incidentally therewith the na- 
 ture of stock, and the interest and rights of stockholders.^ 
 But the great and constantly increasing importance of 
 this species of personal property demands further atten- 
 tion. 
 
 § 134. Stock, and shares of stock, defined. — The term 
 " stock" is frequently used to signify money invested in 
 busi ness bv an individual or fJTm. hut in this connecti on 
 it means the capital of business mrpnratinTis and jnint- 
 st oek companie s. The money or property contributed by 
 subscribers to the fund which constitutes the business cap- 
 ital of the corporation or association, is termed "capital 
 stock." The amount of capital stock is generally fixed 
 by the corporate charter, or limited by the statutes under 
 which the company is organized.* 
 
 1 Supra, §§30 and 31. 
 
 2 Barry v. Merchants' Ex. Co., 1 Sandf. Ch. 280, 305; Burrall v. 
 Bushwick R. R. Co., 75 N. Y. 211; Williams v. Western Union 
 Tel. Co., 93 N. Y. 162, 188; Bailey v. Clark, 91 Wall. 284; High- 
 tower V. Thornton, 8 Ga. 486, 500; St. Joseph R. R. Co. v. Shack- 
 lett, 30 Mo. 551, 558; St. Louis Iron M., etc. Co. v, Loftin, 30 Ark. 
 693, 709; Bent v. Hart, 10 Mo.App. 143, 146; Cook on Stock, §§3, 
 199; Morawetz, Corp. §§ 137, 781; 1 Sch. Pers. Prop. p. 618, et seq. 
 
238 STOCK AND STOCKHOLDERS. [§ 134. 
 
 The capital stock of a company is sometimes confused 
 in thought with the amount of its property, but the two 
 funds are clearly distiaguishable. The capital stock re- 
 mains as fixed in the organization of the company, unless 
 subsequently changed in amount by authority of statute, 
 but the property of the company may vary in amount and 
 value from time to time, as affected by the condition of 
 business, and by gains and losses. This distinction is 
 emphasized by the rule that dividends can legally be made 
 only from net profits; that dividends which impair the 
 capital stock are illegal, and may be recovered back from 
 the stockholders.' 
 
 A share of stock embraces and represents the whole in- 
 terest of the holder in the corporation, or company, and 
 all his rights growing out of the relation. These, sum- 
 marized, are a right to participate in the management of 
 the company, to share, in proportion to his interest in the 
 stock, in the profits when declared as dividends, and to re- 
 ceive an aliquot part of the proceeds of the capital and as- 
 sets on dissolution of the company, after payment of its 
 debts.* But a shareholder, while having the rights now 
 stated, has no separate legal title to the property or profits 
 
 'Citations last supra, and Cook on Stock, §§ 546, 547; Hughes 
 V. Vermont Cop. Mining Co., 72 N. Y. 207, 210; Chafeee v. Rutland 
 R. R. Co., 55 Vt. 110; Elkins v. Camden, etc., R. R. Co., 36 N. J. 
 Eq. 233; Lockhart v. Van Alstyne, 31 Mich. 76; Pittsburgh, etc., 
 R. R. Co. V. County of Allegheny, 63 Pa. St. 126; Railroad Com- 
 pany V. Howard, 7 Wall. 392; Hastings v. Drew, 76 N. Y. 9; 
 Gratz V. Redd, 4 B. Mon. 178; Bank of St. Marys v. St. John, 25 
 Ala. 566. 
 
 4 Cook on Stock, § 5; Morawetz, Corp. § 288; 1 Potter, Corp. pp. 
 329, 330; Burrall v. Bushwick R. R. Co., 75 N. Y. 211; Plimpton v. 
 Bigelow, 93 N. Y. 592, 599; Field v. Pierce, 102 Mass. 253, 261; 
 Jones V. Davis, 35 Ohio St. 474, 477; Harrison v. Vines, 46 Tex. 15, 
 21; Fisher v. Essex Bank. 5 Gray, 373, 378; JJeiler v. Kelley. 69 
 Pa. St 403, 407. 
 
§ 135.] ACQUIRING TITLE TO STOCK. 239 
 
 of the corporation, until a division is made, or a dividend 
 declared." The act of legally declaring a dividend, in con- 
 templation of law, has the effect of severing the stockhold- 
 er's share from the common fund of the company, and set- 
 ting it apart for his use and benefit, in his individual right. 
 The share thus set apart becomes immediately a debt due 
 from the company to the shareholder, which he may re- 
 cover by an action at law, if it be not paid on demand.' 
 
 It should be observed, however, that the dividend of a 
 stockholder is applicable to a debt due from him to the 
 company at the time the dividend becomes payable, and 
 if an action be brought for the dividend the company may 
 set up the debt by the way of set-off or counter-claim.' 
 
 § 135. Methods of acquiring title to stock. — There are 
 two general methods of acquiring stock, and thus becom- 
 ing stockholders; one by original subscription to the stock 
 in the formation of the company; the other by transfer 
 from a stockholder. 
 
 1. Subscription. — The amount of capital of a private 
 business corporation is fixed by charter, or by its articles 
 of association when organized under a general statute, and 
 
 5 Cook on Stock, §§ 534, 535; Beverage v. New York El. R. R. 
 Co., 112 N. Y. 1, 27; Curry v. Woodward, 44 Ala. 305; Boardman 
 V. Lake Shore, etc., R'y Co., 84 N. Y. 157; Goodwin v. Hardy, 
 57 Me. 143; Rand v. Hubbell, 115 Mass. 461, 474. 
 
 «Cook on Stock, § 544; Jackson's Adm'rs v. Newark Plank 
 Road Co., 31 N. J. Law, 277; Westchester, etc., R. R. Co. v. Jack- 
 son, 77 Pa. St. 321; Stoddard v. Shetucket Foundry Co., 34 Conn. 
 542; Hall v. Rose Hill, etc., Co., 6 Ohio St. 489; Fawcett v. Laurie, 
 i Drew & Sm. 192; Dalton v. Midland Counties R'y Co., 13 C. B. 
 
 474. 
 
 7 Cook on Stock, § 545; Hagar v. Union National Bank, 63 Me. 
 509; King v. Patterson, etc., R'y Co., 29 N. J. Law, 504; Sargent 
 V. Franklin Ins. Co.. 8 Pick. 90; Bates v. New York Ins. Co., 3 
 Johns. Cas. 238. 
 
240 ACQUIRING TITLE TO STOCK. [§ 135, 
 
 is divided into a certain number of shares. Subscriptions 
 to the shares of stock are requisite, both to complete the 
 organization of the company, and to furnish the necessary 
 capital. As the par value of the shares is not ordinarily 
 paid in fuU by the subscribers at first, it becomes essential 
 to the life of the company, and for the security of credit- 
 ors, that the subscriptions should be binding and enforce- 
 able obligations, taking the place of the unpaid balance in 
 making up the capital stock of the company. An^^sulj,- 
 scriptinTifi are he ld to be contracts whic h, when legally 
 made, atp b^'urliT^^Tr ar,A oTifnTnogV.ip Thc rights, privileges, 
 and benefit of membership in the company , constitute a 
 valid and sufficient consideration for the promise of the 
 subscriber, express or implied. The preliminary subscrip- 
 tions become vested in the company immediately upon its 
 formation, their face value being contributions to its capi- 
 tal stock.* It is a settled rule that a subscription for shares 
 implies a promise to pay for them, without proof of an ex- 
 press promise, or of any particular consideration.* 
 
 "While, on the one hand, the unpaid subscription may be 
 recovered by an action at law, on the other hand, the sub- 
 scriber is entitled to a certificate of stock representing his 
 interest in the company. If, on demand, the company re- 
 fuses to issue the certificate, the subscriber or stockholder 
 may compel its issuance by a suit in equity, provided the 
 
 8 Cook on Stock (2 Ed.), § 52, et seq.; Pendergast v. Turton, 1 
 Young & C. Ch. 97; Baltimore, etc.. Turnpike Co. v. Barnes, 6 
 Harris & J. (Md.), 57; Kansas City Hotel Co. v. Hunt, 57 Mo. 126; 
 Beeclier v. Dillsbury, etc., R. R. Co., 76 Pa. St. 306; Junction, etc., 
 R. R. Co. v. Reve, 15 Ind. 236; Marsh v. Burroughs, 1 Wood, 463. 
 
 9 Citations last supra, and Hawley v. Upton, 102 U. S. 314; Buf- 
 falo, etc., R. R. Co. V. Dudley, 14 N. Y. 336; Waukon, etc., R. R. 
 Co. V. Dwyer, 49 Iowa, 121; Mitchell v Beckman, 64 Cal. 117; 
 Merrjmac, etc., Co. v. Levy, 54 Pa. St. 227; Fry v. Lexington, 
 etc., R. R. Co., 2 Mete. (Ky.), 314; Morawetz, Corp. §§ 43-108 
 
§ 136.] LIABILITY OF STOCKHOLDERS. 241 
 
 full capital stock has not been issued, and if it has been, 
 the stockholder may recover of the company the value of 
 the shares at the time of demand.^* 
 
 2. Transfer. — It is well settled that stock is personal 
 property, transferable, and capable of alienation and suc- 
 cession, like other species of personal property, and by the 
 same methods. It follows, therefore, that one may acquire 
 title to shares, and become a shareholder, by purchase and 
 transfer from another.^* 
 
 § 136. Liability of stockholders, and how enforced. — 
 The several ways in which a stockholder may be liable on 
 his stock, will now be briefly noticed. 
 
 1. To the company, and its creditors. — It has already 
 been shown that a stockholder is liable to the company on 
 his contract for the unpaid amount of his subscription.^^ 
 So, also, is he liable to the corporation creditors for such 
 unpaid amount, by virtue of the doctrine, now weU estab- 
 lished, that unpaid subscriptions constitute a trust fund 
 for the benefit of the company's creditors. Courts of equity 
 by their flexible and efficient methods of procedure, will 
 
 10 Cook on Stock, §§ 60, 192; Fletcher v. McGUl, 10 N. B. 651; 
 Appeal of Rowley, 9 Atl. Rep. 329; Chester Glass Co. v. Dewey, 
 16 Mass. 94; Fergeson v. Wilson, L. R. 2 Ch. 77; Wyman v. Am. 
 Powder Co., 62 Mass. 168; Finley, etc., Co. v. Hurtz, 34 Mich. 89; 
 McCord V. Ohio & Miss. R. R. Co., 13 Ind. 220; Buffalo, etc., R. R. 
 Co. T. Dudley, 14 N. Y. 336, 337; Mitchell v. Beckman, 64 Cal. 117; 
 Burrows v. Smith, 10 N. Y. 550. 
 
 "Cook on Stock, §§ 6, 7, 331; Morawetz, Corp. § 172; 1 Potter, 
 Corp. § 257; Heart v. State Bank, 2 Dev. Bq. Ill; Cole v. Ryan, 
 52 Barb. 168; Mobile Mut. Ins. Co. v. Cullum, 49 Ala. 558; Boston 
 Music Hall V. Cory, 129 Mass. 435; Chouteau Spring Co. v. Har- 
 ris, 20 Mo. 382; Poole v. Middleton, 29 Beav. 646; Brightwell v. 
 Mallory, 10 Yerg. (Tenn.), 196; Bank of Attica v. Mgfs. & Trs. 
 Bank, 20 N. Y. 501. 
 
 12 Supra, §§ 134, 135. 
 
 16 
 
242 LIABILITY OP STOCKHOLDERS. [§ 136. 
 
 «,lways readily give their protection to the rights and inter- 
 ests of creditors, who are a favored class in that forum.^* 
 
 The contract of subscription does not, generally, specify 
 a time of payment, and hence is regarded and treated as a 
 promise to pay in the future at such times, and in such 
 parts, as the company may officially demand by way of 
 "calls." The calls, however, must be made by the proper 
 authorities, and in accordance with law, or they wiE be in- 
 valid and unavailable.^* 
 
 The authorities are not in agreement respecting the 
 necessity of giving notice of the caU to the stockholders be- 
 ifore bringing an action for the recovery of the amount 
 ■called for. A majority of cases hold that notice is unnec- 
 essary in the absence of an express provision, either in the 
 charter of the company, the statute governing, the by-laws, 
 or the subscription, making notice a condition precedent to 
 the maintenance of an action. This holding is based upon 
 the ground that the contract is a promise to pay on de- 
 mand, and that the commencement of an action is a suffi- 
 cient demand. There are, however, weighty authorities 
 
 i»Cook on Stock, § 199, et seq.; 1 Sch. Pers. Prop. p. 646, et 
 seq.; Sawyer v. Hoag, 17 Wall. 610, 620; "Wood v. Dummer, 3 Ma- 
 son, 308; Germantown, etc., Ry. Oo. v. Fltler, 60 Pa. St. 124; 
 Hightower v. Thornton, 8 Ga. 486; Crawford v. Roher, 59 Md. 
 599; Sanger t. Upton, 91 U. S. 56; and numerous other cases in 
 the same line. 
 
 14 Cook on Stock, §§ 104-116; Morawetz, Corp. §§ 43-46, et seq.; 
 Boone, Corp. §§ 116, 118; Braddock v. Phil., etc., R. R. Co., 45 
 N. J. L. 363; Banet v. Alton, etc., R. R. Co., 13 111. 504; Spangler 
 y. Ind. & 111. Central R. R. Co., 21 111. 276; Grosse Isle Hotel Co. 
 V. L' Anson's Bxra., 42 N. J. L. 10; s. c. 43 N. J. L. 442; Pittsburg 
 & Cornellsville R. R. Co. v. Clarke, 29 Pa. St. 146; Budd v. Mult, 
 nomah St. Ry. Co., 15 Pa<j. Rep. 659; Eakright v. Logansport & 
 N. Ind. R. R. Co., 13 111. 404; Johnson v. Crawfordsville R. R. 
 Co., 11 Ind. 280; Fairfield C. T. Co. v. Thorp, 13 C<mn. 173. 
 
§ 136.] STABILITY OF STOCKHOLDEBS. 243 
 
 on the other side, which seem to the writer more in accord- 
 ance with sound reason, and the dictates of justice.*' 
 
 The company is not limited to an action at law for the 
 recovery of unpaid subscriptions, several other remedies 
 being available. First, a suit may be brought , nri tliPi snh- 
 sor iption, a judgment obtained, and the stock sold on ex - 
 ecutio n to apply on the judgmen t. Second, the company 
 may bring an action for a breach of the contract, and r e- 
 cover as the measure of damages the difference betwee n 
 the valu e of the stock at the subscription price, and its 
 market value at the date of default iti tnalnnfr p aympmt. 
 Third, the re is the remedy of forfeiture of the stock fo r 
 no n-payme nt. The common-law action to collect the sub- 
 scription as a debt, and forfeiture, are the remedies gen- 
 erally elected. The forfeiture may be effected, either by 
 what is termed a "strict foreclosure," where the company 
 takes the stock to itself, or by a public sale thereof, and ap- 
 plication of the proceeds in payment of the subscription. 
 Forfeiture, not being a common-law remedy, is only avail- 
 able to the company when authorized by statute or charter, 
 or by consent of the stockholders indorsed upon the cer- 
 tificate of stock.*' 
 
 w Carlisle v. Cahawba & Marion R. R. Co., 4 Ala. (N. S.), 70; 
 Wear v. Jacksonville & Savannah R. R. Co., 24 111. 593; Scarlett 
 V. Academy of Music, 43 Md. 203; Essex Bridge Co. v. Tuttle, 2 
 Vt. 393; Spangler v. Ind. & 111. Central R. R. Co., 21 111. 276; Rut- 
 land & Burlington R. R. Co. v. Thrall, 35 Vt. 536; Miles v. Bough, 
 3 Q. B. 845; Edinburgh, etc., Ry. v. Hibblewhite, 6 M. & W., 707; 
 Alabama & Florida R. R. Co. v. Rowley, 9 Fla. 508; Hughes v. 
 Antietam Mfg. Co., 34 Md. 316. 
 
 IS Cook on Stock, §§ 121, 123, and cases cited; Chase v. East 
 Tenn., etc., R. R. Co., 5 Lea, 415; Rand v. White Mountains R. R. 
 Co., 40 N. H. 79; Barton's Case, 4 DeGex & J. 46; Budd v. Mult- 
 nomah St Ry. Co., 15 Pac. Rep. 659; Westcott v. Iflnnesota, etc.. 
 
244 T.TABn.TTY OF STOCKHOLDEES. [§ 136. 
 
 "Wldle several remedies are open to the choice of the com- 
 pany as now shown, it is held in the larger number of cases 
 involving the question, that forfeiture of stock cannot be 
 supplemented by an action at law for the unpaid balance, 
 if any, due on the subscription; that the election of for- 
 feiture is exhaustive of remedies.^^ It should be observed, 
 however, that there are dissenting cases, holding that after 
 forfeiture the company may have an action for deficiency, 
 the same as in the case of a mortgage foreclosure.^' 
 
 The forfeiture of a shareholder's stock has the import- 
 ant effect of relieving him from liability to the creditors 
 of the company, even, where the debts were contracted 
 prior to the forfeiture of the stock." But a stockholder 
 cannot, by his own wiU and act, abandon his shares and 
 effect a forfeiture that will discharge him from liability on 
 his own subscription.^" 
 
 A bill in equity is the ordinary remedy of the creditor 
 
 Co., 23 Mich. 145; Perrin v. Granger, 30 Vt. 595; Weeks v. Sil- 
 ver, etc., Co., 55 J. & S. (N. Y.), 1; Matter of Long Island R. R. 
 Co., 19 Wend. 37, 32 Am. Dec. 429. 
 
 17 Cook on Stock, §§ 124, 125; Morawetz, Corp. § 122, et seq.: 
 . Delaware, etc., Co. v. Sanson, 1 Blnn. 70; Instone v. Frankford 
 
 Bridge Co., 2 Bibb. 576; Rensselaer, etc., R. R. Co. v. Wetsel, 21 
 Barb. 56; Freeman v. Winchester, 18 Miss. 577; Mann v. Cook, 
 20 Conn. 178; Rutland, etc., R. R. Co. v. Thrall, 35 Vt. 536, and 
 many other cases in the same line. 
 
 18 See Carson v. Arctic Mining Co., 5 Mich. 288; Danbury, etc., 
 R. R. Co. v. Wilson, 22 Conn. 435; Great Northwestern Ry. Co. v. 
 Kennedy, 4 Exch. 417, 425. 
 
 19 Cook on Stock, § 127; Macauley v. Robinson, 18 La. An. 619; 
 Allen V. Montgomery R. R. Co., 11 Ala. 437, 450; Mills v. Stew- 
 art, 41 N. Y. 384; Woollaston's Case, 4 DeGex & J. 437; Ex parte, 
 Beresford, 2 Macn. £ 6. 197. 
 
 soRockville, etc.. Turnpike Co. v. Maxwell, 2 Cranch, C. C. 451; 
 Sweny v. Smith, L. R. 7 Eq., 324; Stocken's Case. L. R. 3 Ch. 
 412; Count Phalen's Case, L. R. 9 Eq., 107; Thomas' Case, L. R. 
 13 Eq. 437; Ross v. Bank, etc., 19 Pac. Rep. 243. 
 
§ 136.] LIABIUTY OF STOCKHQLDEES. 245 
 
 to enforce his rights. It is both appropriate and efficient, 
 inasmuch as it brings all the parties interested in the 
 matter before the court, and deals with the equities.*^ 
 
 Other remedies, however, have been held available to 
 Creditors. "When the stockholder is in default for non- 
 payment of installments after call, he is a debtor of the 
 company, and this debt, like any other, is subject to at- 
 tachment or garnishment in a suit by a creditor against 
 the company. And it has been held, also, that for an un- 
 paid subscription, after call, the creditor has a remedy 
 by action at law against the delinquent stockholder, who 
 will be liable in such action to the full extent of his unpaid 
 subscription.^^ 
 
 2. Statutory liability. — Stockholders in a corporation are 
 liable only to the extent of the par value of their stock, 
 unless made so by statute for the benefit of company 
 creditors. Additional liability for this purpose is fre- 
 quently created by charter, or by a general statute. But 
 such a statutory provision will be strictly construed by the 
 courts, in obedience to a well settled rule of construction 
 applicable to statutes in derogation of the common law.^' 
 The statutory liability, being designed for the benefit of 
 
 21 Cook on Stock, §§ 204-211; 1 Story, Bq. Jur. § 350; Griffith 
 V. Mangam, 73 N. Y. 611; Ward v. Griswoldville Mfg. Co., 16 
 Conn. 593; Shickle v. Watts, 7 S. W. Rep. 274; Chrlstenson v. 
 Eno, 106 N. Y. 97, 100; Crawford v. Roher, 59 Md. 590; High- 
 tower V. Thornton, 8 Ga. 486; Adler v. Milwaukee, etc., Co., 13 
 Wis. 57; Henry v. Vermillion, etc.. Turnpike Co., 17 Ohio, 187. 
 
 22 See Cook on Stock, §§ 201, 203, and cases cited. 
 
 23 Bishop, Wr. Laws, §§ 119, 189a; People v. Peacock, 98 111. 
 172; O'Reilly v. Bard, 106 Pa. St. 569; Chase v. Lord, 77 N. Y. 1; 
 Gray v. Coffin, 9 Cush. 192; Grose v. Hilt, 36 Me. 22; Dauchy v. 
 Brown, 24 Vt. 197; Salt Lake City Nat. Bank v. Hendrickson, 
 40 N. J. Law, 52; Davidson v. Rankin, 34 Cal. 53. 
 
246 UABUJTT OP STOCKHOLDEES. [§ 136. 
 
 creditors, can be enforced by them only; and generally tbe 
 remedy is in a court of equity.''* 
 
 A court, in the exercise of its equity power, will make a 
 call for unpaid subscriptions, or order the payment of 
 the same for the benefit of creditors, when the company 
 unjustifiably neglects or refuses so to do, and such action 
 becomes necessary to meet corporate obligations. For- 
 tunately for the public, it is not discretionary with a 
 corporation, or its oiBcers, to deprive creditors of the relief 
 due them in justice and equity."" 
 
 Receivers and assignees in bankruptcy of an insolvent 
 corporation, representing both the company and its cred- 
 itors, are clothed with the power, and charged with the 
 duty, of collecting the unpaid subscriptions, so far as 
 may be necessary for the purpose of pajdng the corpo- 
 rate debts. And the appropriate remedy is by bill in 
 equity, to which all the delinquent share owners should be 
 made parties."" 
 
 3. Liability from defective organization. — To effect a 
 legal organization of a corporation, or a joint stock com- 
 pany under statutory authority, all the essential provi- 
 sions of the statute must be substantially complied with. 
 
 24 Cook on Stock, §§ 218, 222, and cases cited. 
 
 20 Cook on Stock, §§ 108, 207; Scoville v. Thayer, 105 TJ. S. 143 
 Glenn v. Williams, 60 Md. 93; Hatch v. Dana, 101 U. S. 205 
 Glenn v. Sample, 80 Ala. 159; Marsh y. Burroughs, 1 Woods, 463 
 Boeppler v. Menown, 7 Mo. App. 447; Curry v. Woodward, 53 
 Ala. 371. 
 
 28 Cook on Stock, § 208; High, Rec. (2 Ed.) 1; Nathan v. Whit- 
 lock, 9 Paige, 152; Dayton v. Borst, 31 N. Y. 435; Mean's Appeal, 
 85 Pa. St 75; Chandler v. Brown, 77 111. 333; Tobey v. Russell, 
 9 R. I. 58; Stewart v. Lay, 45 Iowa, 604; Clarke v. Thomas, 34 
 Ohio St 46; Phoenix, etc., Co. v. Badger, 67 N. Y. 294; Sawyer 
 V. Hoag, 17 Wall. 610, 621; Upton v. Tribllcock, 91 U. S. 45; Pay- 
 eon V. Stoever, 2 Dill. 427. 
 
§ 136.] UABILITT OP STOCKHOLDEBS. 247 
 
 For a failure in this regard liabilities may accrue to stock- 
 holders which would not have arisen under a regular 
 organization. "While, as a general rule, a subscriber for 
 stock cannot avail himself of a defective organization of 
 the company as a defense when sued for calls, nor can the 
 company repudiate its contracts on such ground, both being 
 estopped from setting up such a defense,"^ a company 
 creditor may proceed against the individual members for 
 the recovery of his debt. The doctrine of estoppel does 
 not apply to the creditor in such a case, as he is seeking 
 to enforce, not to repudiate a contract."' But the mere 
 fact of an irregularity in the organization, does not neces- 
 sarily render the members absolutely liable for all the debts 
 of the company. Each wiU be liable tn tTiR ftYtp nt hp. wnnld 
 ha ve been had the original purpose been the formation of 
 a partnership . He will not be liable on a debt contracted 
 before he was a member,^* and it has been held that one 
 who becomes a member subsequently to the attempted 
 organization, taking no part therein, or in the management 
 of the company, cannot be held liable for its debts.^* 
 "Where, however, a general statute authorizes the formation 
 of companies for the prosecution of certain kinds of busi- 
 ness, an organization under it which does not specify its 
 particular business will be void as a corporation, and the 
 members will become liable as partners.'^ 
 
 27 See Cook on Stock, §§ 183-186, and cases cited; Buffalo & 
 A. R. R. Co. V. Cary, 26 N. Y. 75. 
 
 asLauferty v. Wheeler, 11 Abb. N. C. 228; Chaffe v. Ludellng, 
 27 La. An. 607; National Bank, etc., v. Landon, 45 N. T. 410, 414; 
 Ridenour v. Mayo, 40 Ohio St. 9. 
 
 29 Fuller v. Rowe, 57 N. Y. 23. 
 
 aoDeWitt v. Hastings, 69 N. Y. 518; Stafford Bank v. Palmer, 
 47 Conn. 443. 
 
 <iCook on Stock, §S 231-234, and cases cited. 
 
248 T.TAR n.TTV OP STOCKHOLDERS. [§ 136. 
 
 4. Liability as affected by transfers. — This topic em- 
 braces the liability of transferer and transferee, and, also, 
 transfers made prior, and subsequent, to registration in 
 the corporate stock book. Shares may be transferred at 
 any time after the contract of subscription is made, either 
 before or after registration, and also either before or after 
 payment in part, or in whole, of the subscription price. 
 And where an absolute transfer in good faith is made, and 
 duly recorded in the corporate stock book, the transferer is 
 whoUy relieved from all further liability for the subscrip- 
 tion price.'^ The burden thus lifted from the transferer 
 rests thereafter upon the transferee." 
 
 From the rules now stated, it would seem to follow 
 logically that the transferee is not liable, either to the 
 company for an unpaid subscription, or to creditors for 
 corporate debts, prior to registration of the transfer, until 
 which time the transferer is not relieved from liability, 
 and such is the law.'* 
 
 It may happen, that intermediate the contract of transfer 
 and the registration, calls wiU be made, or creditors' rights 
 intervene, and in such contingency what are the relations, 
 liabilities, and rights of the respective parties? It has 
 been shown that the transferer is, and the transferee is 
 
 »2 Billings V. Robinson, 94 N. Y. 415; Bx'rs of Gilmore v. Bank 
 of Cincinnati, 8 Ohio, 62, 71; Huddersfleld Canal Co. v. Buckley, 
 7 T. R. 36; Wakefield v. Fargo, 90 N. Y. 213; Chouteau Spring 
 Co. V. Harris, 20 Mo. 382; Allen v. Montgomery R. R. Co., 11 
 Ala. 437, 451; McKenzie v. Kittridge, 24 U. C. C. P. 1; Provincial 
 Ins. Co. V. Shaw, U. C. Q. B. 533. 
 
 S3 Merrimac Mining Co. v. Levy, 54 Pa. St. 227 ; Upton v. Hans- 
 brough, 3 Biss. 417; Webster v. Upton, 91 U. S. 65; Hall v. United 
 States Ins. Co., 5 Gill (Md.), 484; Merrimac Mining Co. v. Bagley, 
 14 Mich. 501; Brigham v. Mead, 10 Allen, 245; Hartford, etc., 
 R. R. Co. V. Boorman, 12 Conn. 530. 
 
 »* See Cook on Stock, §§ 258, 260, 261, and cases cited. 
 
§ 136.] UABILITT OF STOCKHOLDERS. 249 
 
 not, liable to the company or its creditors until registration. 
 "While this rule governs as between the parties to the 
 transfer on the one hand and the company and its creditors 
 on the other, a different relation exists between the parties 
 to the transfer themselves, and to them, in that relation, 
 equitable rules apply. The transferee, being the real and 
 beneficial owner of the stock, is equitably bound to respond 
 to calls and claims. Hence he may be compelled to in- 
 demnify the transferer for aU liabilities incurred and paid 
 by him after transfer prior to registration.'" 
 
 While title to the stock may pass absolutely by transfer 
 from the vendor to the vendee, yet in the hands of the 
 latter it may be subject to a corporate lien for a debt due 
 from the former to the company at the time of the transfer. 
 It is well settled that no such lien exists at common law ;" 
 but it is equally well settled that the company may have a 
 lien in virtue of a statute, or by charter. But whether 
 'such lien may obtain by force of a by-law cannot be con- 
 sidered as settled, there being a difference of judicial opin- 
 ion on the question.*' 
 
 If a share-holder is compelled to pay a debt of the com- 
 pany of which he is a member, he may maintain an action 
 against his co-shareholders for contribution. This is in 
 virtue of the just demand of equity principles, based upon 
 the maxim that equality is equity. "Where several persolis 
 are equally bound for the payment, of the same debt, and 
 are equally relieved on its payment by one of them, tha 
 
 85 Johnson v. Underbill, 52 N. Y. 203; Hutzler v. Lord, 64 Md. 
 B34; Kellogg v. Stockwell, 75 111. 68; "Walker v. Bartlett, 18 C. B. 
 845; Brigham v. Mead, 10 Allen, 245; Grlswell v. Bristowe, L. R. 
 3 C. P. 112; Davis v. Haycock, L. R. 4 Exch. 371. 
 
 36 Cook on Stock, § 521, and cases cited; Morawetz, Corp. § 201, 
 et seg. 
 
 8T See Cook on Stock, § 522, et seq.; § 532, and cases cited. 
 
250 I.TABILJTY OF STOCKHOLDERS. |§ 136. 
 
 plainest dictates of justice require that all should contri- 
 bute, each in proportion to the benefit received by him." 
 
 5. Liability of pledgees. — A pledgee in whose name the 
 I)ledged stock stands on the corporate books is, as to cred- 
 itors of the company, the absolute owner, and liable as 
 such." The pledgee may, however, avoid this liability by 
 having the stock registered in the name of another person 
 designated by him, the nominee in such case being gen- 
 erally a person of no pecuniary responsibility, a mere- 
 "dummy."" 
 
 6. Liability of executors and administrators. — The 
 liability of a shareholder at the time of his decease devolves 
 upon his estate in the hands of his executor or admfnistra- 
 tor. Hence, these personal representatives succeed to the 
 liability of decedent, to the extent of the property that 
 comes to their hands for the purposes of administration, 
 the same as in case of other charges upon the estate.*^ 
 And the executor or administrator may become personally 
 
 »8 1 Story, Bq. Jur. § 493; Pom. Eq. §§ 405, 406; Cook on Stock, 
 § 227; Aspinwall v. Sacchl, 57 N. Y. 331; Umsted v. Buskirk, 17 
 Ohio St. 113; Stewart v. Lay, 45 Iowa, 604; Matthews v. Albert, 
 24 Md. B27; Hadley v. Russell, 40 N. H. 109, 112; Farrow v. Biv- 
 Ings, 13 Rich. Bq. 25. 
 
 MCook on Stock, §§ 247, 470; Pullman v. Upton, 96 U. S. 328; 
 Autman'a Appeal, 98 Pa. St. 505; Crease v. Babcock, 51 Mass. 
 625; Rosevelt v. Brown, II N. Y. 148; Matter of the Empire Bank, 
 18 N. Y. 199; Royal Bank of India's Case, L. R. 7 Eq. 91; Weiker- 
 Bheim's Case, L. R. 8 Ch. 831; Price & Brown's Case, 3 D«Gex & 
 Sm. 146. 
 
 *o Cook on Stock, §§ 247, 466, 470; Anderson, Receiver, v. Ftila- 
 delphia Warehouse Co., Ill U. S. 479; Welles v. Larrabee, 36 Fed. 
 866; Henkle v. Salem Mfg. Co., 39 Ohio St 547; Newry, etc., R'y 
 Co. V. Moss, 14 Beav. 64; Hiatt v. Griswold, 5 Fed. 573. 
 
 "Baird's Case, L. R, 5 Ch. 725; Thomas' Case, 1 DeGex & Sm. 
 679; BVans v. Coventry, 25 L. J. Ch. 489; Ex parte Gouthwait, 
 3 Mac. & G. 187; Crandall v. Lincoln, 52 Conn. 73; Bailey v. Hol- 
 Uster, 26 N. Y. 112. 
 
§ 137.] ASSETS UPON DISTRIBUTION. 251 
 
 liable upon the stock, if lie appropriates the assets of the 
 estate to legacies, without making provision to meet the 
 liability of the estate on the stock.** 
 
 7. Liability of agents. — ^When stock is subscribed for, or 
 purchased, by one person as the agent of another, and 
 registered on the stock book of the company in the agent's 
 name, both the agent and the principal will be liable to 
 corporate creditors, who may hold either responsible on 
 the stock. But the agent will have a just and enforceable 
 claim against his principal for any charges he may have 
 been compelled to pay on such liability.*' 
 
 § 137. The assets upon dissolution of the company. — 
 We have seen that the capital stock and property of the 
 company constitute a trust fund for the benefit of cred- 
 itors,** and also that the stockholders are entitled to a 
 distributive share of the assets upon dissolution of the 
 company, after payment of the corporate debts.*" The 
 company is the trustee of this fund, and the corporate cred- 
 itors are the beneficiaries. In virtue of the well settled 
 doctrine of equity, the latter may follow and claim the 
 trust property through all changes of form, so long as it 
 can be identified, and into whosever possession it may pass, 
 except tona fide purchasers.*' 
 
 42 Jefferys v. JefEerys, 24 L. T. Rep. N. S. 177; Thomas' Case, 
 supra; Cook on Stock, § 248. 
 
 *8 Cook on Stock, § 249, and cases cited. 
 
 *4 Supra, § 136, sub. 1. 
 
 45 Supra, § 134; and see Krebs v. Carlisle Bank, 2 Wall (C. C), 
 33; James v. Woodruff, 10 Paige, 541; Wood v. Dummer, 3 Mason, 
 308, 322; Heath v. Barmore, 50 N. Y. 302; Burrall v. Bushwick 
 R. R. Co., 75 N. Y. 211; Day v. Postal Tel. Co., 7 Atl. Rep. 608; 
 Mamma v. The Potomac Co., 8 Peters. 281, 286. 
 
 48 Story, Ea. Jur. § 1252; Pom. Eq. §§ 1048-1051, 1080; Mora- 
 •wetz, Corp. § 1035, et seq.; Cook on Stock, §§ 641, 642. 
 
252 ASSETS UPON DISTRIBUTION. [§ 137. 
 
 If the assets are placed in the hands of any person, offi- 
 cial or otherwise, for distribution, they may be reached by 
 creditors, and also by stockholders entitled to a share. The 
 remedy of the latter is a suit in equity, to which the com- 
 pany, as well as the person holding the assets, should be 
 made a party.*' 
 
 The real estate of a corporation, it is now generally held, 
 constitutes a part of its assets, and, on dissolution, is avail- 
 able to creditors and stockholders, each in their order, and 
 according to their respective rights.** It should be noticed, 
 however, in passing that while the weight of authority 
 sustains the rule as now stated, there is not entire unanim- 
 ity of adjudications on the question. And, moreover, the 
 decisions in some of the States are governed by statutes 
 which change the common-law rule. 
 
 Important questions have arisen and been much dis- 
 cussed in regard to the sale of all the corporate property by 
 the directors, or in pursuance of a vote of a majority of 
 the stockholders against the wishes of the minority, and 
 especially respecting a sale to another company and taking 
 its stock in payment, or a consolidation with another, for 
 the purpose of dissolving the old, and forming a new com- 
 pany. "Without attempting to review the discussions on 
 the subject, it may be stated as settled by the weight of 
 authority, that neither the directors, nor a majority of the 
 stockholders, have power to sell all the corporate property 
 
 *'' Young V. Moses, 53 Ga. 628. For remedies in some other con- 
 tingencies, see Homer t. Carter, 11 Fed. Rep. 362, and Re Pon- 
 tius, 26 Hun, 232. 
 
 ■•» Lum v. Robertson, 6 Wall. 277; Bacon v. Robertson, 18 How. 
 (U. S.), 480; Robinson v. Lane, 19 Ga. 337; Lothrop v. Stedman, 
 13 Blatclif. 134; Blake v. Portsmouth, etc., R. R. Co., 39 N. H. 
 435; Fox v. Horah, 1 Ired. (N. C), 358; Curry v. Woodward, 63 
 Ala. 371; Powell v. North Mo. R. R. Co., 42 Mo. 63; People v. 
 O'Brien, 111 N. Y. 1. 
 
§ 137.] ASSETS UPON DISTRIBUTION. 253 
 
 against the dissent of a minority, however small, unless the 
 sale be made for the purpose of paying the debts of the 
 corporation, or with a view to its dissolution, and a bona 
 fide discontinuanc e of the business.** In case, however, a 
 corporation becomes financially embarrassed, or proves a 
 failing enterprise, it seems that a majority of the stock- 
 holders may dispose of all the corporate property with a 
 view to dissolution, even against the dissent of a minority,"" 
 and may accept stock of another corporation in payment. 
 But dissenting stockholders cannot be compelled to take the 
 stock of another company in payment of their interest in 
 the assets of the dissolved company. They are entitled 
 to cash. 
 
 The shares of stock in the new company thus taken in 
 payment for the assets of the old, may be distributed 
 among such of the stockholders of the old as consent to 
 accept them, and the balance must be sold for cash, and 
 the proceeds distributed pro rata among the dissentients 
 according to their respective interests in the assets of the 
 old company."^ 
 
 *» Abbott v. American Hard Rubber Co., 33 Barb. 578; 4 Blatchf. 
 489; Smith v. New York, etc., 18 Abb. Pr. 419, 435; Robbins v. 
 Clay, 33 Me. 132; Sheldon, etc., Co. v. Eickmeyer, etc., Co., 56 
 How. Pr. 71, 90 N. Y. 607; Middlesex R. R. Co. v. Boston, etc., 
 R. R. Co., 115 Mass. 347; Kean v. Johnson, 9 N. J. Bq. 401; Erwin 
 V. Oregon Ry. & Nav. Co., 27 Fed. Rep. 635; Boston, etc., R. R. 
 Co. V. N. Y. & N. E. R. R. Co., 13 R. I 260. And see Cook on 
 Stock (2 Ed.), §§ 629, 630. 
 
 «o See Lanman v. Lebanon Valley R. R. Co., 30 Pa. St. 42. 
 
 BiCook on Stock, § 667; State v. Bailey, 16 Ind. 46; Kelley v. 
 Mariposa, etc., Co., 4 Hun, 632; McCiirdy v. Myers, 44 Pa. St. 535; 
 Ex parte Bagshaw, L. R. 4 Eq. 341; Treadwell v. Salisbury Mfg. 
 Co., 7 Gray, 392; Black v. Delaware, etc.. Canal Co., 22 N. J. Eq. 
 130, 415, 24 Id. 455; Buford T. Keokuk, etc., Packet Co., 3 Mo. 
 App. 159. 
 
 * 
 
254 MONET. [§ 139. 
 
 CHAPTER XI7. 
 
 MISCELLANEOUS SPECIES OF PERSONAL PROPERTY NOT 
 HEREINBEFORE SPECIFICALLY TREATED. 
 
 S§ 138-140. Money. 
 141-142. Debts. 
 143-150. Mortgages. 
 
 151-153. Bottomry, and respondentia, bonds. 
 154-157. Rent 
 
 I. Money. 
 
 § 138. What it is. — ^Money, in the ordinary and gen- 
 eral acceptance of the term, means that which constitutes 
 the co mmon medium of exchange in a civilized nation . 
 It includes coijvgold ^and silve r and other peta ls stamp ed 
 by puJlia.aulhority, and use3 as the standard of values and 
 medium of commerce and also any currency usually and 
 lawfuly employed in business as the equivalent of coined 
 metals, such as bank notes and the like.^ 
 
 § 139, Constitutional money. — ^It is claimed that under 
 certain provisions of the United States Constitution the 
 term "money" is limited to, or synonymous with coin. 
 These provisions are found in Art. I, Sees. 8 and 10. Sec. 
 8 confers upon Congress the power "to coin money, regu- 
 
 iBouv. L. Diet "Money;" Web. Unab'gd, "Money;" Bolles on 
 Banks, § 33; Wharton v. Morris, 1 Dall. 124; Lee v. Biddis. Id. 
 175; Hopson v. Fountain, 5 Humph. (Tenn.), 140; Wyer y. Dor- 
 chester, etc., 11 Cush. 51; Richard t. Bankes, 13 East, 20; Parker 
 V. Merchant, 1 Phil. (N. C), 355; In re Powell, Johns, 49, 5 Jur. 
 N. S. 331; Fryer v. Ranken, 11 Sim. 55; Vaisey v. Reynolds, 5 
 Russ. 12; Jenkins v. Fowler, 63 N. H. 244; Bouv. L. Diet "Money 
 Had and Received." And. L. Diet "Money." 
 
§ 139.] CONSTITUTIONAL MONET. 255 
 
 late the value thereof, and of foreign coin." Sec. 10 
 provides that "No state shall • • • coin money; emit 
 bills of credit ; nor make anything but gold and silver coin 
 a tender in payment of deits." These provisions seem 
 to indicate that the framers of the Constitution intended 
 to make gold and silver coin the money of the United States 
 in exclusion of other currency, and also the only legal 
 tender in payment of debts. Congress seems to have fav- 
 ored this view from the fact that, until recently copper 
 and nickel coins, although authorized to "pass current" 
 as are the coins of foreign nations, the value thereof being 
 regulated by Congress under the power granted by the 
 Constitution,' were not, like gold and silver, declared to be 
 "legal tender in payment of debts."* But under the ex- 
 igencies of the late civil war Congress authorized the 
 issuance by the government of notes, generally known as 
 "legal tenders" or "greenbacks," and provided in effect 
 that these notes should serve the same purpose as a circulat- 
 ing medium, and represent the same value, as gold and 
 silver coin of the same denominations. The several acts 
 of Congress known as the "Legal Tender Acts," were 
 passed February 25, 1862; July 11, 1862; and March 3, 
 1863. These acts made the notes which they authorized 
 "receivable in payment of all loans made to the United 
 States, and of all duties, debts, and demands due to the 
 United States, except duties on imports and interest on the 
 public debt, and of all claims and demands against the 
 United States substantially, except for interest on its coin- 
 bearing loans." It was further provided that these notes 
 should "be lawful money and legal tender in payment 
 
 »Art I, §§ 8, 10. 
 
 «Bouv. L. Diet. "Money;" 1 Sch. Pers. Prop. p. 440; Whart. 
 Com. Am. Law, S 412; Legal Tender Cases, 12 Wall. 45T. 
 
256 CONSTITUTIONAL MONET. [§ 139. 
 
 of all debts, public and private, within the United States." 
 It is not surprising that an earnest controversy arose 
 in the country, and in the courts, in regard to the constitu- 
 tionality of the "Legal Tender Acts." The Supreme 
 Court of the United States, in 'Sepburn v. Griswold,* de- 
 cided by a majority of one judge, that the provision mak- 
 ing such notes a legal tender, as to debts contracted both 
 before and after the enactment of the statute, was un- 
 constitutional. Subsequently, on the addition of two new 
 judges to the bench, the decision in Hepburn v. Griswold 
 was overruled, and the constitutionality of the statute 
 affirmed by a majority of one." The State courts furnish 
 numerous decisions in harmony with the last cited cases, 
 some in obedience to the authority of the United States 
 Supreme Court, and others on an independent judgment of 
 the law.' Nevertheless, in view of the clear language of 
 the Constitution, the construction generally given it by 
 Congress and the courts, until the preservation of the na- 
 tional life required extraordinary measures, and the di- 
 vided opinion of the judges of the United States Supreme 
 Court, there is ground for the opinion, widely entertained, 
 that the Legal Tender Acts, in so far as they substitute 
 paper for coin in payment of debts generally, and "Make 
 such paper legal tender, can only be justified and sustained 
 as a temporary measure of contrbUing necessity.'' 
 Although a debt created by a contract to pay money 
 
 4 8 Wall. 603. 
 
 "Legal Tender Cases, 12 Wall. 457. 
 
 « Smith V. Smith, 1 Thomp. & Cook (N. Y.), 63; Smith v. Wood, 
 37 Tex. 616; Metropolitan Bank v. Van Dyck, 27 N. Y. 400; Schol- 
 lenberger v. Brinton, 52 Penn. St. 9, 100; Latham v. United States, 
 1 Court CI. 149; George v. Concord, 45 N. H. 484; Carpenter v. 
 Northfleld.Bank, 39 Vt. 46; and many others. 
 
 i-l Sch. Pers. Prop. pp. 445-448; Whart Com. Am. Law, { 442. 
 
§ 140.] SUBJECT TO LEVY UNDER EXECUTION. 257 
 
 generally may, as the law now stands, be discharged by 
 legal-tender notes, a contract may be made expressly or 
 impliedly, requiring payment "in specie," or in gold and 
 silver coin," under which these notes cannot be substituted 
 for gold and silver, and will not constitute a legal tender.* 
 The States, it is held, have the constitutional authority to 
 prescribe the currency in which debts due to themselves 
 for taxes must be paid," and creditors may stipulate in 
 contracts the currency in which debts due them thereunder 
 may, or shall, be paid.^" 
 
 § 140. Money subject to levy under execution. — ^Money, 
 being p erson ajjrcrpfirty, is subject t o levy by execut ion 
 against the property of the defendant, and, as a general 
 rule, must be paid over by the officer as so much money 
 collected, without exposing it for sale.^^ 
 
 But in the New York Code of Civil Procedure,** it is 
 provided that where the money levied upon consists of gold 
 coin, the officer must sell it like other personal property, 
 unless he is otherwise directed by an order of the judge, 
 or of the judgment in the particular cause. 
 
 M oney i s only subjegLlQ-levy, however, w hen it belong s 
 to the judgment debioE^nd is within his contr ol. In obed- 
 
 8 Legal Tender Cases, 12 Wall. 457; Trebilcock v. Wilson, Id. 
 687; Bronson v. Rhodes, 7 Id. 229; Hinneman v. Rosenback, 39 
 N. Y. 98; Essex Co. v. Pacific Mills, 14 Allen, 389; Myers v. Kauf- 
 man, 37 Ga. 600; Bank of Commonwealth v. Van Vleck, 49 Barb. 
 508; Frank v. Calhoun, 59 Pa. St. 381; The Surplus, etc., of the 
 Edith, 5 Ben. 144; Bowen v. Darby, 14 Fla. 202; Maryland v. Rail- 
 road Co., 22 Wall. 105. 
 
 9 Bronson v. Rhodes, 7 Wall. 229; Carpenter v. Atherton, 25 
 Cal. 564; Lane v. Gluckauf, 28 Id. 288; Linn v. Minor, 4 Nev. 462. 
 
 10 Lane County v. Oregon, 7 Wall. 71. 
 
 11 Smith's Sheriffs, etc., p. 326. 
 «S 1410. 
 
 17 
 
258 DEBTS. [§ 141. 
 
 ience to this rule it has been held that money collected oji 
 an execution, while in the hands of the collecting officer, 
 cannot be levied upon under an execution against the per- 
 son for whom it was collected, the money not being strictly 
 paid over.^' 
 
 So as to money deposited in a bank by the judgment 
 -debtor, for such money, under an ordinary general de- 
 posit, becomes the property of the bank. The relation of 
 debtor and creditor between the bank and the depositor 
 is created.^* 
 
 In application of the same rule it has been held, that 
 money collected by an attorney for the judgment debtor 
 is not subject to levy by execution against the latter, while 
 the money remains in the attorney's hands." 
 
 II. DeMs. 
 
 § 141. Definition and classification. — The term "debt" 
 is from the Latin dehere, signifying to owe ; and in a gen- 
 eral sense may be defined as that which is due a person 
 under any form of obligation or promise; or, more con- 
 cisely stated, that which is owed. But, in certain species 
 of contract the term is ordinarily used in a more restricted 
 sense, signifying a de bt of record , or a debt by contract 
 under seal, te rmed a speci alty. There is a third and quite 
 extensive class of debts imder the general definition above, 
 founded on contracts not under seal, and termed simple 
 contr act deb ts." 
 
 13 Dubois V. Dubois, 6 Cowen, 499; Baker v. Kenworthy, 41 N. T. 
 215; Turner t. Tendall, 1 Cranch, 116. 
 
 "Canrole v. Cone, 4 Barb. 220; National Citizens' Bank t. 
 Howard, 3 How. Pr. Rep. (N. S.), 512; Commercial Bank of Al- 
 bany V. Hughes, 17 Wend. 94. 
 
 16 Maxwell v. McGee, 12 Cush. 137. 
 
 "1 Bouv. L. Diet. "Debt;" 1 Sch. Pers. Prop. pp. 459-461; Wll- 
 
§ 141.J DEBTS. 259 
 
 The classification of actions, including the action of debt, 
 is herein omitted as properly belonging to the subject of 
 pleading. It does not strictly follow the above divisions, 
 and there is, moreover, a lack of uniformity in the decisions 
 on the subject. 
 
 The different classes of debts will now be noticed. 
 
 1. A debt of reoord.T-This is briefly and well defined by 
 Blackstone, as "a debt due bv thfi yividf-T^ po nf g nmiTt nf 
 record ." ^^ And a court of record is defined by the same 
 author as that, "where the acts and judicial proceedings 
 are enrolled in parchment for a perpetual memorial and 
 testimony. " ** "With the recognition of the fact that paper 
 may now, as a general rule, be substituted for parchment, 
 Blackstone 's definition is sufficiently accurate for the pres- 
 ent time. It must not be assumed, however, that the mere 
 fact that a record is kept determines the character of a 
 court.^* Another definition of a court of record is furnished 
 by Chief Justice Shaw, of Massachusetts, in Ex parte Glad- 
 Mil,^" giving more fully the characteristics and distinctive 
 qualities of these courts. In passing upon the character 
 of the police court in Lowell, after mentioning its organ- 
 ization and functions, he says. "This indicates the estab- 
 lishment of a court, or judicial, organized tribunal, having 
 attributes and exercising functions, independently of the 
 person of the magistrate designated generally to hold it, 
 and distinguishes it from the case of a justice of the peace, 
 
 liams, Pers. Prop. pp. 96, 104, 105, 109; 2 Black. Com. p. 465; 3 
 Id. p. 154; Gray v. Bennett, 3 Met. 522; Cable v. McCune, 26 Miss. 
 371; Mlldam Foundry v. Hovey, 21 Pick. 417. And. L. Diet. 
 "Debt." 
 
 "2 Black. Com. p. 465. 
 
 18 3 Black. Com. pp. 24, 25. 
 
 19 See 1 Bout. L. Diet. "Court of Record," and cases there cited. 
 
 20 8 Met. 168, 170. And. L. Diet "Court of Record." 
 
260 DEBTS. [§ I'll, 
 
 on whom, personally, certain judicial powers are conferred 
 by law."" 
 
 It should be noticed, also, that the character of a court, 
 as to whether of record or otherwise, as weU as its jurisdic- 
 tion, powers and functions, is often determined by statute. 
 
 The judgment roll of the court of record was regarded 
 by the English common law of such high authority that its 
 truth could not be questioned, the settled rule and maxim 
 being "that nothing shall be averred against a record, nor 
 shall any plea, or even proof, be admitted to the contrary. ' ' 
 And if the existence of the record was denied, it had to 
 be tried by nothing but itself, on bare inspection.^^ But 
 this rule, wherever existing, does not prevent the impeach- 
 ment of a judgment for want of jurisdiction in the court 
 which assumed to render it, or for fraud. It is absolutely 
 essential to the validity of a jud_gment, that the court ren- 
 dering it should have jurisdiction, both of the subject 
 matter, and of the parties. "Without such jurisdiction 
 the judgment is simply a nullity, and fraud vitiates every- 
 thing with which it is tainted.'" Bui;, as a general rule, 
 it is not competent to show a want of jurisdiction in oposi- 
 tion to the recitals in the record, provided the court be 
 competent, by its constitution, to decide on its own juris- 
 diction. There is a distinction in this regard between 
 courts of general, and of special, or limited, jurisdiction. 
 In the latter, the record of judgment should contain all 
 the facts essential to confer jurisdiction; in the former, 
 
 21 See 3 Black. Com. p. 25; 1 Sch. Pers. Prop. 461, et seq. 
 
 22 3 Black. Com. pp. 24, 25. 
 
 2« Towns V. Springer, 9 Ga. 130; Miller v. Barkeloo, 8 Ark. 318; 
 Wicks V. Ludwig, 9 Cal. 173; Johnson v. Johnson, 30 111. 215; 
 Clark V. Bryan, 16 Md. 171; Westervelt v. Lewis, 2 McLean, 511; 
 Bryan v. Blythe, 4 Blackf. (Ind.), 249; Smith v. Knowlton, 11 
 N. H. 191; Barrett v. Crane, 16 Vt 246. 
 
§ 141.] DEBTS. 261 
 
 jurisdiction will be presumed until the contrary be shown. 
 In Grignon v. Astor,"* the distinction is thus stated: "The 
 tru e line of distinction between courts whose decisions are 
 c onclusive if not removed by an appellate court, and tho se 
 wbnsft pT-np.ppr|iTigs ^^"^ Tmllitipg jf ^Vi e jurisdiction does not 
 appear on t heir face^ is this : A coiirt^g hich is competen t 
 by its constitut io n to decide on its own jurisdiftinn, and t. n 
 exerri se it to final jud^ 'ment withnnt setting- forth in it s 
 proceedings t he facts and evide nce on which it is rendere d, 
 whose record is absolute verit y, not to be impugned by 
 averment or proof to the contrary, is of the first descrip- 
 tion; there can be no judicial inspection behind the judg- 
 ment, save by appellate power. A court which is so con- 
 stituted that its judgment can be looked through for the 
 facts and evidence which are necessary to sustain it, 
 whose decision is not evidence of itself to show jurisdiction 
 and its lawful exercise, is of the latter description. Every 
 requisite for either must appear on the face of their pro- 
 ceedings, or they are nullities.'""' 
 
 In courts of general jurisdiction the question must be 
 raised, and the evidence showing a want of jurisdiction 
 produced, on the trial. As a rule the judgment can not b e 
 impe ached coUaterallv. exc ept for fraud.' " 
 
 As to whether foreign judgments, rendered by a court 
 of general jurisdiction, may be impeached for want of 
 jurisdiction, by going behind the record, the authorities 
 are not in agreement, so far, at least, as the judgments of 
 otir sister States are concerned. These States being inde- 
 
 2*2 How. 319. 
 
 25 And see Bouv. L. Diet. "Jurisdiction," subs. 4 and 6 and the 
 cases there cited. And. L. Diet. "Jurisdiction." 
 
 26Hartman v. Ogborn, 54 Pa. St. 120; Fisk v. Miller, 20 Tex. 
 579; Lewis v. Rogers, 16 Pa. St. 18; Thorn v. Newsom. 64 Tex. 
 161; Hall v. Durham, 109 Ind. 434. 
 
262 DEBTS. [§ 141. 
 
 pendent sovereignties, judgments rendered in tke courts 
 of one State are foreign judgments in every other, unless 
 they are placed on an equality with domestic judgments 
 by the Constitution of the United States. That instru- 
 ment provides that "full faith and credit shall be given 
 in each State to the acts, records, and judicial proceedings 
 of every other State;" and authorizes Congress to pre- 
 scribe the manner of proving such acts, records and pro- 
 ceedings.^' Under this authority Congress provided that 
 records and judicial proceedings, when authenticated as 
 directed by the act, shaU receive such faith and credit in 
 every court within the United States as they have by law 
 or iisage in the courts of the State from whence they are 
 taken.^' Uiider these provisions, it would seem that judg- 
 ments recovered in one State ought to have the same force 
 and effect in every other as domestic judgments. But the 
 courts have not aU taken this view, at least in regard to 
 discrediting the record on the question of jurisdiction.'* 
 
 If the record of a judgment in a sister State may be 
 attacked collaterally, and the record discredited, when it 
 
 27 Art. 4, § 1. 
 
 28 Act of May 26th, 1790; U. S. R. S. sec. 905. 
 
 29 See Starbuck v. Murray, 5 Wend. 148; Bradshaw v. Heath, 13 
 Wend. 407; Hall v. Williams, 6 Pick. 232; Gleason v. Dodd, 4 Met. 
 333; Norwood v. Cobb, 24 Tex. 551; Knowles v. Gas Light Co., 19 
 Wall. 58; Kerr v. Kerr, 41 N. Y. 272 (but see Hunt v. Hunt, 72 
 N. Y. 217, 240); Kerr v. Coudy, 9 Bush (Ky.), 372; Pennywit v. 
 Foote, 27 Ohio St. 600; and Nepton v. Leaton, 71 Mo. 358; New- 
 comb V. Peck, 17 Vt. 302; Wilcox v. Kassick, 2 Mich. 165; Bimelar 
 V. Dawson, 5 111. 536; Roberts v. Caldwell, 5 Dana, 512; Lincoln v. 
 Tower, 2 McLean, 473; Caughran v. Gilman, 72 Iowa, 570; Rankin 
 V. Barnes, 5 Bush (Ky.), 20; Wetherill v. Stillman, 65 Pa. St. 105; 
 Galpin v. Page, 18 Wall. 350; and Hanley v. Donaghue, 116 U. S. 
 1; Haddock v. Haddock, 201 U. S. 562; Atherton v. Atherton, 181 
 U. S. 155 
 
§ 141.] DEBTS. 263 
 
 comes under judicial cognizance in other States, a fortiori 
 may a judgment rendered by a court in a foreign country 
 be impeached in like manner and on the same grounds. 
 
 That a judgment, foreign or domestic, may be i m- 
 peach ed collaterallv for fraud, by third partip,s whose right s 
 or interests are endangered or injured thereby, is well 
 settled.*" And a court of equity may vacate and set aside 
 a judgment, at the instance of parties or privies, where it 
 has been procured by collusion, and is injurious to their 
 interests."^ 
 
 But a judgment upon the merits, by a competent court, 
 having jurisdiction over the subject-matter and the parties, 
 while unreversed, and not set aside or vacated, is binding 
 and conclusive upon the parties and privies, both as to law 
 and fact, in respect to all matters actually litigated in the 
 action, and also all matters which might have been ad- 
 judicated under the pleadings.^^ 
 
 «o Thompson's Appeal, 57 Pa. St. 175; Atkinson v. Allen, 12 Vt. 
 619; Hall v. Hamlin, 2 Watts (Pa.), 354; People v. Phoenix Bank, 
 7 Bosw. 20; Lewis v. Rogers, 16 Pa. St. 18; Dlxey v. Pollock, 8 
 Cal. 570; Willard v. Whitney, 49 Me. 235; Whetstone v. Whet- 
 stone, 31 Iowa, 276; Cowin v. Toole, Id. 513. 
 
 SI Field V. Flanders, 40 111. 470; Dexter v. Voorhles, 81 N. Y. 
 153; Hunt v. Hunt, 72 Id. 217; Harbaugh v. Kohn, 52 Ind. 243; 
 Harris v. Cornell, 80 111. 54; Doughty v. Doughty, 27 N. J. Eq. 
 315; Craft v. Thompson, 51 N. H. 536; Holland v. Trotter, 22 
 Gratt. 136; Graham y. Roberts, 1 Head, 56, 59; Huxley v. King, 
 40 Mich. 73. 
 
 82 Campbell v. Strong, Hemp. 265; Hollister v. Abbott, 31 N. H. 
 442; Wall v. Wall, 28 Miss. 409; Warburton v. Aken, 1 McLean, 
 460; Swlggart v. Harber, 5 111. 304; LaGrange v. Ward, 11 Ohio, 
 257; Hammell v. Thurmond, 17 Ark. 203; Housemlre v. Moulton, 
 15 Ind. 367; Hart v. Jewett, 11 Iowa, 276; Page v. Esty, 54 Me. 
 319; People v. Smith, 51 Barb. 360; Gardner v. Buckbee, 3 Cow. 
 120; Dick v. Webster, 6 Wis. 481; Stockton v. Ford, 18 How. 418; 
 Mathews v. Durgee, 17 Abb. Pr. 256; Falrchlld v. Lynch, 99 N. Y. 
 359. 
 
264 DEBTS. [§ 141. 
 
 The effect of foreign judgments as res judicata is not 
 so well established. It is generally agreed, however, that 
 foreign judgments in rem, when not impeached for want 
 of jurisdiction or fraud, have the same force and effect as 
 domestic judgments. But in respect to the conclusiveness 
 of foreign judgments in personam, the authorities are not 
 in agreement.*' The scope of this work will not permit a 
 discussion of this point. 
 
 2. Recognizance. — ^A d ebt m ay a lso be created by reco g- 
 niz ance, which is an obligation entered into before a cour t 
 o r officer duly authorized for that purpose, with a conditi on 
 to do, or ca u se to be done, some particular act which is 
 the rein specified. This undertaking by the cognizor is 
 made a record of the court, and thus becomes an obligation 
 of record. The undertaking may be made by bail, in civil 
 cases, conditioned that they will pay the debt, interest and 
 costs recovered by the plaintiff; and for other purposes 
 under statutes; or, in criminal cases, conditioned for the 
 appearance of a party before the proper court, to answer 
 to such charges as are or shall be made against him." A 
 recognizance taken by a court of inferior jurisdiction, must 
 contain sufficient recitals in the condition to show that the 
 court has jurisdiction of the subject matter, or the recog- 
 nizance will be void, the same rule applying to a recogni- 
 zance as to a judgment by such a court." 
 
 s8 1 Greenl. Ev. §§ 541, 546. 
 
 3*2 Black. Com. p. 342; 2 Bouv. L. Diet. "Recognizances;" Wil- 
 liams' Pers. Prop. p. 105; Race v. Mississippi, 25 Miss. 54. 
 
 35 Bridge v. Ford, 4 Mass. 641; State v. Smith, 2 Me. 62; Dodge 
 V. Kellock, 13 Me. 136; Commonwealth v. Loveridge, 11 Mass. 
 337; Vose v. Deane, 7 Mass. 280; Darling v. Hubbell, 9 Conn. 350; 
 State V. Whittaker, 19 La. Ann. 142; State v. Randolph, 26 Mo. 
 213; Commonwealth v. Otis, 16 Mass. 198; Dow v. Prescott, 12 
 Mass. 419. 
 
§ 141.] DEBTS. 265 
 
 3. Specialty debts. — The second class of debts are what 
 are termed, in brief, specialties, that is a deed, or contract 
 under seal. It includes a sealed conveyance of real estate ; 
 a deed-poll, that is, a deed from one to another who does 
 not join in it ; an indenture, that is a deed in which two or 
 more persons join in mutual covenants; bonds; and, in 
 short, all writings obligatory under seal." 
 
 The essentials of a valid specialty are substantially the 
 same as any other valid contract, with a seal added. A 
 specialty is regarded in law as superior to an unsealed 
 instrument ; and hence, if the parties to a simple contract — 
 that is an unsealed contract — enter into a specialty on the 
 same matter, and co-extensive therewith, the former is 
 merged in and extinguished by the latter.'^ It was an 
 early and well established doctrine of the common law, that 
 a specialty cannot be varied or abrogated by words, viritten 
 or unwritten, if they are not under seal. But this rule has 
 been modified, if not wholly reversed, as appears by modern 
 authorities.'* 
 
 4. Simple contract debts. — This is the lowest class of con- 
 tract debts, and falls under the general definition above 
 given in the beginning of this section. It includes aU 
 contracts not under seal, both oral and written, and em- 
 
 »«2 Black. Com. p. 465; Bishop, Cont, (2nd Enl. Ed.), §§ 104- 
 110; Williams, Pers. Prop. p. 106; 1 Sch. Pers. Prop. p. 465; 
 Benson v. Benson, 1 P. Wms., 130, 131; Harriot v. Thompson, 
 Willes, 186, 189; Laidley v. Bright, 17 W. Va. 779; Seymont v. 
 Street, 5 Neb. 85; Bank of United States v. Dormally, 8 Pet. 361, 
 371. 
 
 87 Bishop, Cont. (2nd Enl. Ed.), S 129; 1 Chit. Cont. (11 Am. 
 Ed.) 9; Robblns v. Ayers, 10 Mo. 538; Banorgee v. Hovey, 5 Mass. 
 11; Rhoads v. Jones, 92 Ind. 328; Boale v. Mayor, 19 C. B. N. S. 
 76; Sharp v. Gibbs, C. B. N. S. 527. 
 
 38 Bishop, Cont. (2nd Enl. Ed.), §S 130-137; Canal Co. v. Ray, 
 101 U. S. 522, 527. 
 
266 HOW DISCHAE6ED. [§ 142. 
 
 braces a large proportion of the debts growing out of the 
 various departments of business, which furnish the sub- 
 jects of litigation.^' 
 
 § 142. Debts, how discharged. — There are various ways 
 in which debts may be discharged, or the debtor released 
 from his legal obligation; as payment; 'accord and satisfac- 
 tion; bankruptcy; release; rescission; lapse of time; nova- 
 tion; former recovery; and, generally, by performance of 
 the condition. These will now be briefly noticed. 
 
 1. Payment. — This subject has already been sufficiently 
 considered.** 
 
 2. Accord and satisfaction. — This is an executed agree- 
 ment between_&eparties, made by the debtor, an d accepted 
 b y.^the creditor or claimant, in satisfaction and discharge 
 of the original (jcht nr Hafnajre .*'^ A mere unexecuted 
 agreement by way of accord, wiU not discharge the orig- 
 inal obligation, nor bar an action upon it, unless the agree- 
 ment itself is made the satisfaction. The creditor or 
 claimant may accept a new promise in satisfaction of his 
 debt or claim. *^ The effect of the new agreement, whether 
 in itself a satisfaction, is a question of construction. If the 
 new promise be founded upon a new and valid considera- 
 
 s»2 Black. Com. p. 466; Williams' Pers. Prop. p. 110; Bishop, 
 Cont. (2iid Enl. Ed.), § 163, et seq. 
 
 M Supra, i 112. 
 
 *i2 Pars. Cont. (7 Ed.), p. 681, et seq.; 1 Bouv. L. Diet "Ac- 
 cord;" 3 Black. Com. p. 16; 2 Greenl. Bv. § 28. And. L. Diet. 
 "Accord." 
 
 42 2 Pars. Cont. (7 Ed.), p. 682; Cock v. Honychurch, T. Raym. 
 203; 2 Keble, 690; Peytoe's Case, 9 Rep. 79b; Watkinson v. In- 
 glesby, 5 Johns. 386; Frost v. Johnson, 8 Ohio, 393; Woodruff v. 
 Dobbins, 7 Blackf. 582; Ballard v. Noaks, 2 Pike, 45; Brooklyn 
 Bank v. DeGrauw, 23 Wend. 342; Bryant v. Proctor, 14 B. Mon. 
 457; Bigelow v. Baldwin, 1 Gray, 245; Babcock v. Hawkins, 23 
 Vt 561; Simmons v. Clark, 56 111. 9G; Pettis v. Ray, 12 R. I. 344. 
 
§ 142.] HOW DISCHARGED. 267 
 
 tion, and is binding on the original promisor, it will gen- 
 erally warrant, if not require, a construction making the 
 new, a satisfaction of the old, promise;*' and, as in other 
 cases of contract, the intention of the parties will be in- 
 fluential in determining the construction. 
 
 In case of an undisputed debt for a specific sum, or of a 
 claim for liquidated damages, the acceptance by the cred- 
 itor, or claimant, of a less sum in satisfaction, will not bar 
 an action for the balance.** If, however, the promise of 
 a smaller sum be made upon additional security by a third 
 party, or any other new and valid consideration, the prom- 
 ise and payment will work a satisfaction.*' 
 
 It is held that an accord and satisfaction made before 
 default in payment or performance by the debtor cove- 
 nantor, is not a bar to an action for a subsequent breach.*" 
 
 3. Bankruptcy. — While as a general rule every debt 
 entitled to be proved as a claim may be discharged under 
 the existing bankruptcy act, there are certain exceptions. 
 
 No d ebt incurred after a netition in bankruptcy has b een 
 filed can be discharg ed.*^ It is also a fundamental rule 
 that oblig ations due the state or sovereion are not a.ffpnf,pfl 
 by the bankruptcy statutes. Therefore all fines imposed as 
 
 *3Good V. Cheeseman, 2 B. & Ad. 704; Evans v. Powis, 1 Exch. 
 907; Bayley v. Homan, 3 Bing. (N. C), 621; Wentworth v. Bul- 
 len, 9 B. & C. 850. 
 
 <* Harriman v. Harriman, 12 Gray, 341; Bunge v. Koop, 5 Rob. 1; 
 Ryan v. Ward, 48 N. Y. 204; Pinnel's Case, 5 Rep. 117; Thomas 
 V. Heathom, 2 B. & C. 477; Blancliard v. Noyes, 3 N. H. 518; 
 Wheeler v. Wheeler, 11 Vt. 60; Bailey v. Day, 26 Me. 88. 
 
 ^oKeeler v. Salisbury, 33 N. Y. 648; Nassoy v. Tomllinson, 148 
 N. Y. 326; 2 Pars. Cont. pp. 619, 620, and cases there cited; 2 
 Greenl. Ev. § 28, and cases cited. 
 
 48Healy v. Spence, 8 Exch. 668; Mayor of Berwick v. Oswald, 1 
 El. & B. 295; Kay v. Waghorn, 1 Taunt. 428; Smith v. Brown, 3 
 Hawks, 580; Harper v. Hampton, 1 Harr. & J. 673. 
 
 *T In re Burka, 5 Am. B. R. 12; In re Marcus, 5 Am.. B. R. 19. 
 
268 HOW DISCHAEGED. [§ 142. 
 
 penalties for crimes and all debts due the United States or 
 State, so long as the latter acts in a, sovereign capacity are 
 not within the statute.*' 
 
 The effect is also sometimes limited by the claimant's 
 citizenship or by his relation to other persons or business 
 entities. For example the debt of an alien, whether a resi- 
 dent or not may be discharged, although the discharge 
 cannot be pleaded in a foreign court.*" On the other hand 
 the debt of an alien bankrupt, which has been discharged 
 by a decree of a court of his own country, may still be sued 
 upon here."" 
 
 If the bankrupt is liable for his wife's debts, by the 
 laws of his state, as for necessaries, his discharge will 
 release the debts.°^ Under the former bankruptcy statute, 
 liabilities for torts were not discharged unless in judg- 
 ment. "When, however, the tort grows out of a contract, the 
 weight of authority is that it will be discharged, although 
 the debt has not been reduced to judgment. But fraudu- 
 lent liabilities are not affected or claims for obtaining 
 goods by false pretenses or by false representations."^ 
 
 Under the clause of the present statutes exempting from 
 discharge liabilities for willful and malicious injuries to 
 the person or property of another, a judgment for aliena- 
 tion of a husband's affection, a judgment for malpractice, 
 and a judgment for libel have been included." Although 
 there is much conflict of authority on the subject, the 
 
 «« 1 TJ. S. Bank Act 1898, sec. 17; In re Moore, 6 Am. B. R. 590. 
 
 4» Pattison v. Wilbur, 10 R, I. 448. 
 
 BO Zarega's Case, Fed. Cas. No. 18,204. 
 
 51 Vanderheyden v. Mallory, 1 N. T. 452. 
 
 82 Ames T. Moir, 138 U. S. 306; Forsyth v. Vehmyer, 177 XI. S. 
 177. 
 
 «8 Leicester v. Hoadley, 9 Am. B. R. 379; Be Flanders, 10 Am. 
 B. R. 379; McDonald v. Brown, 10 Am. B. R. 58. 
 
^ 142.] HOW DISCHARGED. 269 
 
 weight of judicial opinion is that alimony, whether due 
 or not, is neither provable nor dischargeable."* 
 
 It is to be remembered, however, that a debt discharged 
 is not paid. The moral obligation will still constitute a 
 su fficient consideration to support a new promise."" An 
 oral promise will be sufficient unless a written promise is 
 required by statute, but whether oral or in writing the 
 promise must be definite, express, distinct, and unam- 
 biguous."* A conditional oi3fer of payment not accepted 
 by the creditor will not suffice to revive a debt discharged 
 in bankruptcy."' 
 
 4. Eelease. — As ordinarily used, the term "release" may 
 be defined as the giving up or surrender, in any manner, of 
 a claim or right. It may be effected by the voluntary 
 act of the parties, intended as a surrender, or by operation 
 of law."' A consi deration is essential to the validity of a 
 rel ease by the act of the parties, and there must , therefore, 
 either be a considerat ion in fact, or a seal , which imports 
 a consideration, and, as a general rule, estops a party in 
 law from denying it."" But, while the seal may estop a 
 party in law from denying a consideration, it does not 
 
 B^Toung V. Young, 7 Am. R. B. 171; Barclay v. Barclay, 184 
 III. 375; Audubo nv. Schufeldt, 181 U. S. 575. 
 
 48 DusenBerry v. Hoyt, 53 N. Y. 521. 
 
 08 Smith v. Stanclifleld, 7 Am. B. R. 498; Re LorlUard, 5 Am. 
 B. R. 602. 
 
 0' International Harv. Co. v. Lyman, 10 Am. B. R. 450. 
 
 88 2 Bouv. L. Diet. "Release;" Bishop, Cont. (2nd. Enl. Ed.), 
 § 850. 
 
 »» Bishop, Cont. (2nd Enl. Ed.), §§ 51. 83, 119, 24, 851, 852, 874; 
 Harris v. Harris, 23 Gratt. 737; Van Valkenburgh v. Smith, 60 
 Me. 97; Sharlngton v. Stratton, 1 Plow. 298, 309; Page v. Tru- 
 fant, 2 Mass. 159, 102; Fallows v. Taylor, 7 T. R. 475; Cooch v. 
 Goodman, 2 Q. B. 580; Burkholder v. Plank, 19 Smith (Pa.), 225; 
 Kidder v. Kidder, 33 Pa. St. 268; Seymour v. Minturn, 17 Johns. 
 169; Jackson v. Stackhouse, 1 Cow. 122. 
 
270 HOW DISCHARGED. [§ 142. 
 
 estop a court of equity from looking behind it for the facts, 
 and of granting such relief as the equities demand." And 
 in some of the States of the Union, the want or failure of 
 consideration is held to be a good defense to an action on 
 a specialty; the seal being presumptive evidence of con- 
 sider ation, but not con clusive.'^ In some other States 
 a seal is rendered unnecessary by statute, an unsealed, 
 being made equally effectual with a sealed, instrument.'^ 
 
 As instances in which a release may be effected by opera- 
 tion of law, may be mentioned the ease of a release of one 
 of two or more promisors or obligors, which operates as a 
 discharge of all;'* a release by one of several joint prom- 
 isees is effectual as against all ;'* a covenant never to sue ;" 
 and a bond or covenant to save harmless and indemnify 
 the debtor against his debt, is a release of the debt." And 
 
 80 Bishop, Cont. (2nd Enl. Ed.), §§ 120, 121; Lister v. Hodgson, 
 Law Rep. 4 Eq. 30, 36; Jefeerys v. JefEerys, Craig & P. 138; Kef- 
 fer V. Grayson, 76 Va. 517; Logan v. Plummer, 70 N. C. 388; Haz- 
 zard V. Irwin, 18 Pick. 95, 106; Obert v. Hammel, 3 Harr. 73; lies 
 V. Cox, 83 Ind. 577; Thorn v. Thorn, 51 Mich. 167; Coranth v. 
 Forsyth, 68 Ga. 5G0; Hoydon v. Green, 56 Iowa, 733. 
 
 61 Pierce v. Wright, 33 Tex. 631; Greathouse v. Dunlap, 3 Mc- 
 Lean, 303; Kinnebrew v. Kinnebrew, 35 Ala. 6^8; Stoval v. Bar- 
 nett, 4 Lltt. 207; Ring y. Kelley, 10 Mo. App. 411; Campbell v. 
 Thompkins, 5 Stew. Ch. 170; AUer v. AUer, 11 Vroom. 446. 
 
 62 McKinley v. Miller, 19 Mich. 142, 151; MoCurtie v. Stevens, 
 13 Wend. 527. 
 
 «3 Lacy V. Klnnaston, 3 Salk. 298 ; Rex v. Bayley, 1 Car. & P. 
 435.; Rowley v. Stoddard, 7 Johns. 207; Willlngs v. Consequa, 
 Pet. C. C. 301; Campbell 'v. Brown, 20 Ga. 415; United States v. 
 Thompson, Gilp. 614; Myrick v. Dame, 9 Cush. 248. 
 
 64Myrick v. Dame, last cited; Wilkins v. Lindo, 7 M. & W. 81; 
 Wild v. Williams, 6 M. & W. 490; Eastman v. Wright, 6 Pick. 316; 
 Bruen v. Marquand, 17 Johns. 58; Morse v. Bellows, 7 N. H. 549. 
 
 «5 Cuyler v. Cuyler, 2 Johns. 186; Jackson v. Stackhouse, 1 Cow. 
 122; Dew v. Jeffries, Cro. Bliz. 352; White v. Dingley, 4 Mass. 
 433; Reed v. Shaw, 1 Blackf. 245; Garnett v. Macon,. 6 Call, 308. 
 
 «8 Clark V. Bush, 3 Cow. 151. 
 
§ 142.] HOW DISCHAEQEID. 271 
 
 generally, whatever may be the form, or words, of the 
 instrument, it will operate as a release, provided it clearly 
 manifests the purpose of the creditor to discharge the 
 debt and the debtor. 
 
 It was a common law doctrine that an obligor could only 
 be released by an instrument of as high dignity as that by 
 which he was bound, and hence, when obligated under seal, 
 he could be released only by a sealed instrument. But the 
 trend of modem authority is against this doctrine, it 
 being held on high authority that a sealed obligation may 
 be released by parol.'^ And it has been held that a contract 
 which a statute requires to be in writing may be released by 
 parol.*' 
 t 5. Rescission. — In case of a debt arising upon contract, 
 the parties by mutual consent, may rescind the contract 
 and thus discharge the debt. It has been held, however, 
 that in a contract of sale, Where the property has passed, 
 as much formality will be required to re-vest the title in 
 the vendor, as against the vendee's creditors, as was nec- 
 essary to transfer the title to the vendee." In case of a 
 fraudulent sale, the defrauded party may, on discovery of 
 the fraud, rescind the contract and relieve himself from 
 all liability thereunder, provided the parties can be placed 
 in statu quo.'"' 
 
 61 Bishop, Cont. (2nd Enl. Ed.), §§ 130-137, 852; Canal Co. v. 
 Ray, 101 V. S. 522, 527. 
 
 68 Gross V. Nugent, 5 B. & Ad. 58, 65, 66; Cummings v. Arnold, 
 3 Met. 486; Stearns v. Hall, 9 Cush. 31. 
 
 69 Quincy v. Tilton, 5 Me. 277 ; State of Maine v. Intoxicating 
 Liquors, 61 Me. 520; Gleason v. Drew, 9 Me. 81; Beecher v. May- 
 all, 16 Gray, 376. 
 
 Tovoorhies v. Earl, 2 Hill, 292; Lucy v. Bundy, 9 N. H. 278; 
 Miner v. Bradley, 22 Pick. 457; Coolidge v. Brigham, 1 Met. 550; 
 Fullager v. Reville, 3 Hun, 600; Higham v. Harris, 108 Ind. 246; 
 Prentiss v. Russ, 16 Me. 30; Downer v. Smith, 32 Vt. 1; Matter- 
 
272 HOW DISCHAEGED. [§ 142. 
 
 6. Lapse of time. — Discharge by lapse of time has been 
 considered under the head of "Limitations,"''^ and re- 
 quires no further discussion in this connection. ' 
 
 7. Novation. — This is briefly and comprehensively de- 
 fined by Bouvier thus: "The substitution of a new obliga- 
 tion for an old one, which is thereby extinguished." '^ 
 
 For the present purpose it is only necessary to notice two 
 kinds of novation: First, when a new debt takes the place 
 of an old one, thus discharging it, the debtor and creditor 
 remaining the same ; and, second, when the debt remains the 
 same, but a new debtor is substituted for the old, who is 
 thereby discharged. 
 
 To effect a novation several things are essential; first, 
 there must be an existing valid obligation, else there will 
 be nothing to extinguish; second, the parties innovating 
 must consent to the substitution; and, third, there must 
 be an express intention to innovate. An important con- 
 sequence of the innovation is, that the extinction of the 
 old debt destroys all the rights and liens thereto pertain- 
 ing." 
 
 8. Former recovery. — ^First, what is the effect of a judg- 
 ment, as res judicata f The doctrine, stated generally, 
 is, that a judgment of a court of competent authority, 
 having jurisdiction of the subject matter and of the parties 
 is, while unreversed, conclusive of the questions in issue. 
 
 son v. Holt, 45 Vt. 336; Water's Pat. Heating C!o. v. Smith, 120 
 Mass. 444; Baker v. Lever, 67 N. T. 304; Warren v. Tyler, 81 111. 
 15;- Sliaw y. Barhart, 17 Ind. 183; Blen v. Bear River, etc., Co., 
 20 Cal. 602; Pence v. Langdon, 99 U. S. 578; Street v. Blay, 2 
 Bam. & Ad. 456; Tlede. Sales, § 163. 
 i^Siipra, §§ 118, 119. 
 
 T2 2 Bouv. L. Diet. "Novation;" And. L. Diet. "Novation." 
 '3 1 Pars. Cont (7tli Ed.), p. 217, et seq.; 2 Whart. Cent. ! 852, 
 et seq. \ 
 
§ 142.] HOW DISCHARGED. 273 
 
 as between the parties and privies, whether privies in es- 
 tate, in blood, or in law.'* From this doctrine, and princi- 
 ples hereinbefore stated, it follows that when a simple con- 
 tract debt, or a specialty debt, is merged in a judgment, 
 the original debt is extinguished. The doctrine of res 
 judicata as now stated, is generally held to apply to for- 
 eign judgments in rem, with the same force and effect as to 
 domestics, but in regard to foreign judgments in personam, 
 the authorities are not in full agreement.'"' The scope of 
 this work will not permit a discussion of this point. 
 
 Although dealing with contracts, it may be of service 
 to the student to notice in this connection that a satisfied 
 judgment in trover, not only extinguishes the plaintiff's 
 claim for the injury sustained, but invests the defendant 
 with title to the property wrongfully converted by him." 
 
 It may be stated generally, in conclusion, that debts 
 may be discharged by performance of the condition of 
 the obligation, whatever it may be, as the payment in 
 full of a money bond, or the production of a party in 
 court in pursuance of the exigency of a recognizance. 
 
 T4l Bouv. L. Diet. "Former recovery;" 2 Id. "Res judicata;" 1 
 Greenl. Ev. § 522, et seq.; 2 Pars. Cont. (7 Ed.), p. 867, et seq.; 
 Best, Ev. pp. 574, 577, 580; Bishop, Cont. (2iid Enl. Ed.), § 270,-: 
 Supra, under § 141; Holllster v. Abbott, 31 N. H. 442; Wall v. 
 Wall, 28 Miss. 409; Lagrange v. Ward, 11 Ohio, 257; Trammell v. 
 Thurmond, 17 Ark. 203; Hart v. Jewett, 11 Iowa, 276; Vandyke 
 v. Bastedo, 15 N. J. L. 224; Kelly v. Mize, 3 Sneed (Tenn.), 69; 
 Pierson v. Catlln, 18 Vt. 77; Martin v. Hunter, 1 Wheat. 304; 
 Smith V. Maryland, 6 Cranch, 286. 
 
 76 1 Greenl. Ev. §§ 541, 546. 
 
 7« Bishop, Non-Con t. Law, § 999; Osterhout v. Roberts, 8 Cow. 
 43; Foreman v. Nelson, 2 Rich. Eq. 287; Cooper v. Shepherd, 3 
 C. B. 266; Chartrau v. Schmidt, Id. 229; Hepburn v. Sewell, 5 Har. 
 & J. 211; Spivey v. Morris, 18 Ala. 254; Smith v. Alexander, 4 
 Sneed, 482. 
 18 
 
274 MOETGAGES. 144. 
 
 III. Mortgages. 
 § 143. Definition, and essential elements. — ^A_chaJttel 
 
 mnrt^afr^ is tliP traTis|f^r ^ f the title to nsraOTial propfirlry 
 as RAP^irify fnr a flfi^it nv obligation, in such form that on 
 fail ure of the mortgagor to comply with the terms of th e 
 pontTact, thft titl e of the prnpftrt.y will he in thfi mort- 
 gagee.''^ 
 
 An analysis of the definition will show the essential 
 elements of the mortgage in question. 
 
 1. A transfer of title to the chattels from the mortgagor 
 to the mortgagee. 
 
 2. It must be intended as a security for a debt or obli- 
 gation. 
 
 3. The transfer of title must be upon the condition, 
 express or implied, that payment of the debt when due 
 and payable, or discharge of the obligation, shall operate 
 as a defeasance, and re-vest the title in the mortgagor. 
 
 4. That on default of payment, or performance of the 
 condition, the title shall become absolute in the mort- 
 gagee. 
 
 § 144. Formal requisites. — No particular form of words 
 is requisite to constitute a mortgage. "Whatever be the 
 form or language of the instrument, if it shows an inten- 
 
 TTParshall v. Eggart, 52 Barb. 367; Porter v. Parmly, 42 How. 
 Pr. 445; Thomson t. Batie, 11 Neb. 147, 151; Miner v. Judson, 2 
 Hun, 441; Mowry v. Wood, 12 Wis. 413; Palmer v. Shirley, 16 
 Ind. 380; Scott v. Henry, 13 Ark. 112; Ing v. Brown, 3 Md. Ch. 
 521; Carpenter v. Snelling, 97 Mass. 452; Taber v. Hamlin, 97 
 Mass. 498; Smith v. Beattle, 31 N. Y. 542; Mosley v. Crocket, 9 
 Rich. (S. C), Bq. 339; Talbot v. DeForest, 3 Iowa, 586; Flanders 
 V. Barstow, 18 Me. 357; Conner v. Carpenter, 28 Vt. 237; Tiede. 
 Sales, % 221, et seq. 
 
§ 144.] MORTGAGES. 275 
 
 tion of transferring title to the goods as security, subject 
 to defeasance, it will constitute a chattel mortgage.'" 
 
 Parol chattel mortgages. — These are valid at common 
 law, but to satisfy the Statute of Frauds they must be 
 in writing.'" And quite generally in the States of the 
 Union there are statutes providing, in effect, that as 
 against creditors and subsequent purchasers and mort- 
 gagees in good faith, chattel mortgages shall not be valid 
 without recording or filing; which provisions, by impli- 
 cation, require a written instrument. But notwithstand- 
 ing these statutes, parol mortgages, as between the par- 
 ties, may be valid and enforceable.** 
 
 Separate defeasance. — "While one instrument usually and 
 properly contains both the grant and defeasance, the 
 latter may be in a separate instrument without affecting 
 the validity of the mortgage. But it must either be exe- 
 cuted at the same time, or subsequently in pursuance of 
 an agreement made at the same time, of the transfer of 
 title. When thus executed the two instruments, in virtue 
 of an elementary principle of the law of contracts, consti- 
 tute but one in contemplation of law.'^ 
 
 78 Hart V. Burton, 7 J. J. Marsh. 322; Farmers', etc.. Bank v. 
 Lang, 87 N. Y. 209; Fowler v. Stoneman, H Tex. 478; Bunacleugh 
 V. Polman, 3 Daly, 236; McKnight v. Gordon, 13 Rich. Eq. 221; 
 Moore v. Murdock, 26 Cal. 514; Bartels v. Harris, 4 Me. 146; Bar- 
 field V. Cole, 4 Sneed, 465; Ctooper v. Brock, 41 Mich. 488; Thomp- 
 son T. Blanchard, 4 N. Y. 303. 
 
 ■!» Supra, § 102. 
 
 so Bank of Rochester v. Jones, 4 N. Y. 497; Flory v. Denny, 7 
 Exch. 581; Morrow v. Turney, 35 Ala. 131; Ceas v. Bramley, 18 
 Hun, 187, 188; Couchman t. Wright, 8 Neb. 1; Beeman v. Law- 
 ton, 37 Me. 543; May v. Estin, 2 Port. 414, 422; Bardwell v. Rob- 
 erts, 66 Barb. 433. 
 
 SI Freeman v. Baldwin, 13 Ala. 246; Bishop, Cont (2nd Eal. 
 Ed.), § 165; 2 Pars. Cont. p. 503. 
 
276 SUBJECTS OF MOETGAGES. [§ 145. 
 
 Parol defeasance. — It is a well-established common-law 
 rule, that parol evidence is inadmissible to vary or contra- 
 dict a written instrument. This rule applied, an uncondi- 
 tional sale cannot be converted into a conditional transfer 
 by parol. But equity relaxes the strict legal rule, and 
 receives parol evidence to show that an absolute bill of sale 
 was intended by the parties as a mortgage. Courts of law 
 have caught the spirit of equity which "mitigates the rigor 
 of the law itself," and now quite generally admit parol 
 evidence for the purpose of showing that a written transfer 
 of personal property, absolute on its face, was in fact condi- 
 tional, intended simply as a defeasible security.'^ 
 
 There are cases, however, that adhere strictly to the 
 common law rule, and refuse to receive parol evidence 
 where the effect would be to vary or contradict the written 
 instrument; while other cases confine the introduction of 
 such evidence to cases of fraud, accident or mistake.** 
 
 § 145. Subjects of a chattel mortgage. — Stated gener- 
 ally, an kinds of personal prop erty, corporeal and incor- 
 
 «2 Hodges V. Tenn: M. & F. Ins. Co., 8 N. Y. 416; Bragleman v. 
 Dane, 69 N. Y. 69; Coe v. Cassldy, 72 N. Y. 133, 137; Farrell v. 
 Bean, 10 Md. 217; Caswell v. Keith, 12 Gray, 351; Hazzard v. 
 lioring, 10 Cush. 267; Stokes v. HoUls, 43 Ga. 262; Todd v. Hard- 
 ing, 5 Ala. 698; Scott v. Henry, 13 Ark. 112; Hurford v. Harned, 
 6 Oreg. 362; Bartel v. Lope, Id. 321; Love v. Blair, 72 Ind. 281; 
 Wilmerding v. Mitchell, 52 N. J. L. 476; Babcock v. Wyman, 19 
 How. 239; Sprigg v. Bank of Mt. Pleasant, 14 Pet. 201; Farmer v. 
 Grose, 42 Cal. 169; Klock v. Walter, 70 111. 416; Heath v. Wil- 
 liams, 30 Ind. 495; Zuver v. Lyons, 40 Iowa, 570. 
 
 83 Porter v. Nelson, 4 N. H. 130; Bassett v. Bassett, 10 N. H. 
 64; Boody v. Davis, 20 N. H. 140; McKinstry v. Conly, 12 Ala. 
 678; Sewell v. Price, 32 Ala. 97; Washburn v. Merrills, 1 Day. 
 139; Whitfield v. Gates, 6 Jones, Bq. 136; Brainerd v. Brainerd, 
 15 Conn. 575; Collins v. Tillon, 26 Conn. 368; French v. Burns, 
 35 Conn. 359; Chaires v. Brady, 19 Fla. 133. 
 
§ 145.] SUBJECTS OF MORTGAGES. 277 
 
 p oreal, in possession or in ap.tioTi, may ha Tnnrt^a.f >;p.d. A 
 
 party jnay mortgg g" gn yfTiiTinr iti tuhinTn \tn >in<i n pnnpnTt ^ ^ 
 ahsnlntft nr qnalifiptlj anH wTiiVli nan Vi p t.bfi aiih-)ft nt. of an 
 ab solute sal e. For examples: The interest of a vendee 
 in the subject of a conditional sale, if he be in possession of 
 the goods;'* an owner of a chattel having a general prop- 
 erty therein, may mortgage it, notwithstanding another 
 party has acquired possession under a special title, as in 
 case of a pledge or lien ; *° grass growing, when it is owned 
 by one who does not also own the land ;'° a tenant in com- 
 mon may mortgage his undivided share, subject, of course, 
 to the rights of the other co-tenants, whatever they may 
 be." 
 
 The relation of this subject to fixtures presents ques- 
 tions of some difficulty, owing to the peculiar character 
 of this species of property.*' "When impressed with the 
 character of personal property, they may be the subject 
 of a chattel mortgage; and they will possess and retain 
 this character while removable by the tenant, or whoever 
 annexed them to the land." And it has been held, that if 
 
 8* Everett v. Hall, 67 Me. 497; Crompton v.^ratt, 105 Mass. 255; 
 Greenway v. Fuller, 47 Mich. 557; Day v. Bassett, 102 Mass. 445; 
 Holman v. Lock, 51. Ala. 287. 
 
 86 Prindell v. Grooms, 18 B. Hon. 501; McCalla v. Bullock, 2 
 Bibb, 208; Smith v. Coolbaugh, 21 Wis. 427. 
 
 88 Smith V. Jenks, 1 Denio, 580, 1 N. Y. 90. 
 
 87Gaar v. Hurd, 92 111. 315; Smith v. Rice, 56 Ala. 417; Shu- 
 art V. Taylor, 7 How. Pr. 251; Powder v. Rhea, 32 Ark. 435; Le- 
 land V. Sprague, 28 Vt. 746; Thompson v. Spittle, 102 Mass. 207; 
 Nichol V. Stewart, 36 Ark. 612; Monroe v. Hamilton, 6 Ala. 226; 
 Smith V. Andrews, 49 111. 28; Moline Wagon Co. v. Rummell, 2 
 McCrary, 301. 
 
 88 See "Fixtures," supra, §§ 9, 10. 
 
 89Denham v. Sankey, 38 Iowa, 269; Smith v. Benson, 1 Hill, 
 176; Goodnow v. Allen, 68 Me. 308; Lamphere v. Lowe, 3 Neb. 
 131, 134. 
 
278 SUBJECTS OP MOETGAGES. [§ 145 
 
 a mortgage be given for the purchase price of a chattel, 
 the thing will remain personal property, as to the parties 
 to the mortgage and all others having notice of it, although 
 subsequently annexed to the freehold.*" It is held, how- 
 ever, that such a mortgage is not enforceable against sub- 
 sequent purchasers and mortgagees of the land without 
 notice of the incumbrance upon the fixture.*' And some 
 of the decisions take the ground that where property, per- 
 sonal in its nature, has become so attached to the land that 
 it cannot be removed without serious injury to the free- 
 hold, the chattel mortgage upon it is not enforceable 
 against subsequent purchasers or mortgagees of the land, 
 even though they had actual notice of the prior incum- 
 brance upon the fixture.*^ 
 
 There has been considerable discussion, and some conflict 
 of judicial opinion as to whether the filing of the mortgage 
 will protect the mortgagee of fixtures against subsequent 
 purchasers or mortgagees of the real estate. The weight 
 of authority seems to be that it would not; that the con- 
 structive notice by filing will only effect subsequent pur- 
 chasers and incumbrancers of the fixtures; and that noth- 
 ing short of actual notice or knowledge would be sufficient 
 as against subsequent purchasers and mortgagees of the 
 land.'* 
 
 »o Ford V. Cobb, 20 N. T. 344; Corcoran v. Webster, 50 Wis. 125; 
 Klnsey v. Bailey, 9 Hun, 420; Sisson v. Hubbard, 10 Hun, 420; 
 Coman v. Lakey, 80 N. Y. 345; Eaves v. Estes, 10 Kan. 314; Her- 
 ryford v. Davis, 102 U. S. 235; Tifft v. Horton, 53 N. Y. 377; Da- 
 vis V. Bliss, 187 N. Y. 77. 
 
 »i Coman v. Lakey, 80 N. Y. 345; Voorhees v. McGinnis, 48 
 N. Y. 278, 287; Pierce v. George, 108 Mass. 78. 
 
 92 See cases cited supra. 
 
 •8 Bringhoff v. Munzenmaier, 20 Iowa, 513 ; Richardson v. Cope- 
 land, 6 Gray, 536; Ford v. Cobb, 20 N. Y. 344. And see Snowdon 
 
§ 146.] POSSESSION BY MORTGAGOR. 279 
 
 § 146. Possession of the mortgaged property. — ^Upon 
 the execution and delivery of the mortgage, the mort - 
 gagee is entitled to the imme diate possession of the mort- 
 gag ed property, except where the parties have expressly 
 agreed that the mo rtgagor may retain possession until 
 default. On this rule the authorities are in accord.** 
 The title carries with it, t.TiPi ri gTit nf pncgp ssion. and the 
 mortga gee, in the absenc e of an agreement that the mor t- 
 gagor may retain possession, ca n mai ntain an action of 
 trespass or trover against any person, even the mortgago r, 
 who withholds or disturbs his possession.*' But where 
 the right of posse^on is" reserved to the mortgagor until 
 default, the mortgagee cannot maintain an action for the 
 conversion of the chattels while the mortgagor's right con- 
 tinues. The action in such case must be brought by the 
 mortgagor, as the right to immediate possession is requisite 
 to the maintenance of the action of trover.*" While the 
 mortgagor is legally in possession he may bring action in 
 replevin or conversion against a mortgagee or his agents 
 for interfering with the property.*' On default of the 
 
 V. Craig, 26 Iowa, 165; Fortman v. Goepper, 14 Ohio St. 558; Bren- 
 nan v. Whittaker, 15 Ohio St. 446. 
 
 9*Ramsdell v. Tewksbury, 73 Me. 197; Brackett v. Bullard, 12 
 Met. 308; Broadhead v. McKay, 46 Ind. 595; Clark v. Whittaker, 
 18 Conn. 543; Ellington v. Charleston, 51 Ala. 166; Robinson v. 
 Campbell, 8 Mo. 365; McGuire v. Benoit, 3 Md. 181; Smith v. 
 Acker, 23 Wend. 654; Wilson v. Brannan, 27 Cal. 258. 
 
 85 Hathaway v. Brayman, 42 N. Y. 322; Curel v. Wunder, 5 Ohio 
 St. 92; Simmons v. Jenkins, 76 111. 479; Calkins v. Clement, 54 
 Vt. 635; Hamilton v. Mitchell, 6 Blackf. 131; Shinners v. Brill, 
 
 38 Wis. 648; Tallman v. Jones, 13 Kan. 438; Ford y. Ransom, 
 
 39 How. Pr. (N. S.), 416; Pierce v. Hasbrouck, 49 111. 23. 
 
 06 The cases last cited, supra; and McLeod v. Bernhold, 32 Ark. 
 671. 
 
 sTHall V. Sampson, 35 N. T. 274; Marsden v. Cornell, 62 N. Y. 
 215. 
 
280 DISTINGUISHED FROM PLEDGE. [§ 147. 
 
 mortgagor the suspended right of possession vests in the 
 mortgagee, and if the goods are not delivered on demand, 
 the law will furnish him a remedy by action of replevin, 
 or trover."* 
 
 The authorities warrant the statement that the mort- 
 gagee, by taking possession on default of the mortgagor, 
 acquires the right to bar the mortgagor's equity of re- 
 demption by a sale of the mortgaged chattels; and this 
 without any special grant in the mortgage of power to 
 sell, or decree of court. The mortgagor and mortgagee 
 in such case, it is held, sustain to each other a relation 
 equivalent to that of pledgor and pledgee, the mortgagee 
 having, like the pledgee, a right to sell after due notice 
 to the mortgagor.*' 
 
 § 147. Mortgage distinguished from a pledge. — ^We 
 have seen that a conditional transfer of the title to the 
 property is essential to a chattel mortgage, but no such 
 transfer takes place in case of a pledge. If a conveyance 
 is taken as security it is a mortgage or a pledge. If the 
 conveyance is intended as full or part payment of a debt, 
 it is a sale. The pledgee takes possession of the goods, and 
 acquires a special property therein, while the general 
 property remains in the pledgor. Prfnult nf tlif plfldc'^^ 
 does not work anv change in the title of either party; a 
 
 98 Robinson v. Fitch, 26 Ohio St. 659; Lindeman v. Ingham, 36 
 Ohio St. 1, 9; Bell v. Shrieve, 14 111. 462; Whisler v. Roberts, 19 
 111. 274; Burton v. Tannehill, 6 Blackf. 470; Whitney v. Lowell, 
 33 Me. 318; Hall v. Snowhill, 14 N. J. L. 8; Coty v. Barnes, 20 
 Vt. 78. 
 
 »» Charter v. Stevens, 3 Denio, 33 ; Patcline v. Pierce, 12 Wend. 
 61, 63; Craig v. Tappin, 2 Sandf. Ch. 78, 90; Hall v. Bellows, 11 
 N. J. Eq. 333; Denny v. Faulkner, 22 Kan. 89; Broadhead v. Mc- 
 Kay, 46 Ind. 595; Wilson v. Brannaft, 27 Cal. 258; Talman v. 
 Smith, 39 Barb. 390; Flanders v. Chamberlain, 24 Mich. 305; Lan- 
 don V. Emmons, 97 Mass. 37. 
 
§' 147.] DISTINGUISHED FROM PLEDGE. 281 
 
 sal e of the goods _ by the pledgee^ o n due notice to the 
 pledgor, being the only way in which he can render the 
 security available for its purpose. Whereas, on default 
 of the mortgagor, the title to the property becomes, at 
 law, absolutely vested in the mortgagee, no sale or decree 
 of court being requisite to effect this result. A pledgor 
 may redeem by payment of the debt, but a mortgagee can 
 enforce redemption only by suit in equity.^ 
 
 Another distinction between a mortgage and a pledge 
 is, that to constitute the latter, a transfer of possession 
 to the pledgee is essential ; while the retention of the prop- 
 erty by the mortgagor does not necessarily affect the valid- 
 ity of the mortgage; and quite generally now a stipulation 
 is inserted in the mortgage reserving to the mortgagor the 
 right of possession till default in the condition.* 
 
 In some of the states there are statutory provisions 
 for recording or filing chattel mortgages, and on com- 
 pliance with these provisions the mortgagor may retain 
 possession of the goods without enjiangering the security 
 of the mortgagee. And where such provisions do not ex- 
 ist, it is generally held that retention of possession by the. 
 mortgagor, does not invalidate the mortgage, except as 
 against subsequent bona fide purchasers and incumbran- 
 cers, and creditors.* 
 
 1 White V. Cole, 24 "Wend. 116; GifEord v. Ford, 5 Vt. 532; 
 Wright V. Ross, 36 Cal. 414; Walker v. Staples, 5 Allen, 34; Con- 
 nor V. Carpenter, 28 Vt 237; Evans v. Darlington, 5 Blackf. 320; 
 Eastman v. Avery, 23 Me. 248; Heyland v. Badger, 35 Cal. 404; 
 Doak V. Bank of the State, 6 Ired. (N. C), L. 309; Mowry v. 
 Wood, 12 Wis. 413; Keller v. Paine, 34 Hun (N. Y.), 167; s. c. 
 107 N. Y. 83; Campbell v. Birch, 60 N. Y. 214. 
 
 zParshall v. Eggart, 52 Barb. 367; Barsow v. Paxton, 5 Johns. 
 258; Bucklln v. Thompson, 1 J. J. Marsh. (Ky.) 223; Letcher v. 
 Norton, 5 111. 575; Hull v. Carnley, 2 Duer. 99. 
 
 8 Morrow v. Turney, 35 Ala. 131; Hackett v. Manlove, 14 Cal. 
 
282 EQUITY BELIEP OF MOBTGAGOE. [§ 148. 
 
 § 148. Equity relief of the mortgagor. — ^Hitherto we 
 have been considering chattel mortgages under the com- 
 mon law. The discussion would be incomplete without 
 some notice of the rules of equity applicable to this species 
 of security. At law, on default of the mortgagor the title 
 to the mortgaged property becomes absolute in the mort- 
 gagee;* the mortgagor's rights and remedies are extin- 
 guished, notwithstanding his default may have arisen 
 from accident or circumstances beyond his control; and 
 the mortgaged property may far exceed in value the mort- 
 gage debt. A tender of the debt in full, with interest, 
 would be of no avail. From the oppressive operation of this 
 rigorous common law rule, a court of equity will relieve 
 the mortgagor, by permitting him to redeem, on making 
 a legal tender of the debt, principal and interest, in fuU.* 
 "While the law treats a chattel mortgage as a defeasible sale 
 of the property, and a transfer of the title, equity regards 
 it as a lien, simply, giving the mortgagee a special prop- 
 erty in the mortgaged chattels by way of security.' 
 
 85; Golden v. Cockrill, 1 Kan. 259; Johnson v. Jefries, 30 Mo. 
 423; Smith v. Moore, 11 N. H. 55; Winsor v. McLellan, 2 Story, 
 492. 
 
 * Bupra, § 143. 
 
 6 Charter v. Stevens, 3 Denio, 33; Wylder v. Crane, 53 111. 490; 
 Flanders v. Barstow, 18 Me. 357; Dupuy v. Gibson, 36 111. 197; 
 Smith V. Coolbaugh, 21 Wis. 427; Wilson v. Brannan, 27 Cal. 258; 
 Blodgett V. Blodgett, 48 Vt. 32; Flanders v. Chamberlain, 24 Mich. 
 305; Bragleman v. Dane, 69 N. Y. 69; West v. Crary, 47 N. Y. 423. 
 
 6 See cases last cited, supra; and Davis v. Hubbard, 38 Ala. 185, 
 189; Sidener v. Bible, 43 Ind. 230; Evans v. Merriken, 8 Gill & 
 J. 39; Headley v. Goundray, 41 Barb. 282; Kinna v. Smith, 2 
 Green. Ch. 14; Eaton v. Whiting, 3 Pick. 484; Anderson v. Baum- 
 gartner, 27 Mo. 80; Ragland v. Justices, 10 Ga. 65; Timms v. 
 Shannon, 19 Md. 296; Whitney v. French, 25 Vt 663; Ellison v. 
 Daniels, 11 N. H. 280; Deedly v. Cad-well, 19 Conn. 218; Hughes 
 V. Edwards, 9 Wheat. 500. 
 
§ 149.] DISTINGUISHED FROM CONDITIONAL SALES. 283 
 
 § 149. Conditional sales with the right to re-purchase, 
 distinguished. — We are now prepared to distinguish he- 
 tween a chattel mortgage and a conditional sale with the 
 right to re-purchase. The features of the two contracts 
 are so much alike, and the inartificial manner in which 
 written instruments are often drawn, that in many cases 
 special care is required to distiaguish the one from the 
 other. In bot h there is a conditional sale which passes 
 the title from the yendor to the vendee ; th e difference be- 
 tween them being that in case of a sale with the right to 
 re-purchase, t he right must be exercised. iT^t all, within 
 the time limited by the contract; w hile in the case of a 
 mortgage the right of redemption exists and may be exer- 
 cised a fter" aetauit or concution proKen . In short, the dis- 
 tinguishing feature is, the equity of redemption in the 
 latter case, and the absence of it, or its equivalent, in the 
 former. It is obviously quite desirable to have a test 
 which, applied to a contract of conditional sale in cases of 
 obscurity and doubt, will determine whether it is a mort- 
 gage or a sale with a right to re-purchase. Such a test 
 is found in answer to the question : Was the transfer made 
 as a security for a debt or liability? If yea, it is a mort- 
 gage ; if nay, it is not a mortgage, but a sale with the right 
 of re-purchase. The purpose of security, we have seen, 
 is the very essence of a mortgage ; and whatever the form 
 of words, if the instrument manifests such intention, it 
 may safely be pronounced a mortgage.'' 
 
 1 Supra, §§ 143, 144; and Robinson v. Cropsey, 2 Bdw. Ch. 138; 
 Woodson T. Wallace, 22 Pa. St. 171; Kelly v. Thompson, 7 Watts, 
 401; Trucks v. Lindsay, 18 Iowa, 505; Page v. Foster, 7 N. H. 392; 
 Flagg v. Mann, 14 Pick. 483; Pearson v. Seay, 35 Ala. 612; Rice 
 v. Rice, 4 Pick. 349; Hughes v. Sheaff, 19 Iowa, 335; Heath v. 
 Williams, 30 Ind. 495; Glover v. Payne, 19 Wend. 518; Cornell v. 
 
284 rOKECLOSUEE, ETC. [§ 150. 
 
 § 150. Foreclosure of the equity of redemption. — ^When 
 the mortgage contains a stipulation that the mortgagee 
 may seU the property on default of the mortgagor, as a 
 means of satisfying the debt; or if, without such stipula- 
 tion, he has possession of the property after default, he 
 may make an absolute sale of the same, and thus bar the 
 mortgagee's equity of redemption. This procedure avoids 
 the necessity of the more dilatory and expensive foreclosure 
 by bill in equity. In the absence of statutory require- 
 ments, the mortgagee may sell the goods at private sale, 
 or at public auction;* but the sale must be conducted in 
 good faith and fairness towards the mortgagor." 
 
 In many of the States there are statutory provisions 
 authorizing the foreclosure of chattel mortgages, and pre- 
 scribing the procedure ; and, in obedience to a well settled 
 rule, these provisions must be substantially complied with 
 in order to effect a regular and valid foreclosure. This 
 rule applies to courts as well as to individuals.*' 
 
 Independent of statutory provisions, however, a court 
 of equity has power to decree a foreclosure of a chattel 
 mortgage.** And there may be a foreclosure in equity 
 
 Hall, 22 Mich. 377; Kearney v. McComb, 16 N. J. Eq. 189; Hark- 
 ness V. Russell, 118 U. S. 680. 
 
 sWaite V. Dennlson, 51 111. 319; Wylder v. Crane, 53 111. 490; 
 McConnell v. People, 84 111. 583. 
 
 » Hale T. Omaha Nat. Bank, 64 N. Y. 550; Robinson v. Bliss, 12 
 Mass. 428; Stoddard v. Dennison, 38 How. Pr. 296; Hall v. Dit- 
 son, 52 How. Pr. 19; Gordon v. Clapp, 113 Mass. 355; Hungate v. 
 Reynolds, 72 111. 425. 
 
 loMossman v. Forrest, 27 Ind. 233; Cooper v. Sunderland, 3 
 Iowa, 114. 
 
 "Morris v. Tillson, 81 111. 607; Broadhead v. McKay, 46 Ind. 
 595; Brown v. Greer, 13 Ga. 285; Hammers v. Dole, 61 111. 307; 
 Dupuy V. Gibson, 36 111. 197; Freeman v. Freeman, 17 N. J. Eq. 
 44; Packard v. Kingman, 11 Iowa, 219; Blakemore v. Tabor, 22 
 Ind. 446. 
 
§ 1.51.J BOTTOMRY, ETC., BONDS. 285 
 
 notwithstanding a power of sale is contained in the mortr 
 gage, designed as a substitute for an equity foreclosure.*' 
 
 rV. Bottomry, and Bespondentia, Bonds. 
 
 § 151. Defined and explained. — ^A bottomry bond is a 
 con tract by which a ship is hypothecated as a secnritv for 
 mon ey borrowed for its use, bv the owner, or the master o r 
 his ag ent, on maritime interes t. 
 
 It is called a bottomry bond because the keel or iottom 
 is hypothecated as representing the whole ship, pars pro 
 toto. 
 
 The term "hypothecation," borrowed froni the civil law, 
 is used to distinguish it from a chattel mortgage, from 
 which it differs, and from a pledge, in which the possession 
 of the property is given to the pledgee. 
 
 The term "maritime interest" means ext raordinary vn - 
 terest, which is allowable and paid on account of the marine 
 risk assumed by the lender. The risk arises from certain 
 perils enumerated in the bond, it being stipulated therein, 
 that if the ship be lost in the course of the specified voy- 
 age, or during the time limited in the contract, by any of 
 the enumerated perils, the lender shall lose his money, 
 principal and interest. Thus the lender, by assuming the 
 risk, becomes a kind of insurer, and is permitted to stipu- 
 late for a premium in the shape of extraordinary interest." 
 
 A respondentia contract or bond is substantially the same 
 
 "Briggs V. Oliver, 68 N. Y. 339; Rich v. Milk, 20 Barb. 616; 
 Marx V. Davis, 56 Miss. 745; Long Dock Co. v. Mallory, 12 N. J. 
 Eq. 93. 
 
 13 Abb. Ship. (7 Am. Ed.), p. 202, et seq.; 2 Bouv. L. Diet. "Bot- 
 tomry;" 2 Pars. Cont. p. 280, et seq.; 1 Sch. Pers. Prop. p. 559, 
 et seq.; The Draco, 2 Snmn. 157; Thorndike v. Stone, 11 Pick. 
 183; Bray v. Bates, 9 Met. 235. 
 
286 HYPOTHECATION OF TECB SHIP. [§ 152. 
 
 as that of bottomry, except that it hypothecates the cargo 
 insfpi aY^ of t.Tifi sTiip a.T\(\ its t.ap.k lfi.^* The two contrabts may 
 be embraced in one instrument. 
 
 It will be seen that the peculiarity of these bonds which 
 distinguishes them from other forms of security is, that 
 the Tender assnTnes the risk of certain perils, a nd takes the 
 chance of losin g his money with the security in the ev ent 
 that the ship, or cargo, be lost by any of the enumerated 
 perils ; but receives for the use of his money, and the risk 
 assumed, maritime interest, in case the ship or cargo — 
 whichever be the subject of the contract — escapes loss or 
 injury from the specified perils.^' 
 
 § 152. Hypothecation by the master, or the owner. — 
 The master of a ship, from the nature and circumstances 
 of his duties and responsibilities, is clothed with extraor- 
 dinary powers as an agent, especially when at sea, or in a 
 foreign port. He is often compelled to decide and act in 
 exigencies involving the safety of the vessel and cargo, and 
 consequently the interest of the owners, without an oppor- 
 tunity of communicating with them, and receiving special 
 instructions for the emergency. Among the powers con- 
 ceded to, and exercised by the master from an early period 
 in the history of navigation and maritime law, is that of 
 hypothecating the ship, or cargo, or both, on bottomry and 
 respondentia bonds. The power may be exercised in a 
 
 14 2 Bouv. L. Diet. "Respondentia;" and authorities last supra. 
 
 10 In addition to cases cited last supra, see The Cognac, 2 Hagg. 
 Adm. 387; Sharpley v. Hurrell, Cro. Jac. 208; Slmonds v. Hodg- 
 son, 3 Barn. & Adol. 50; Jennings v. Ins. Co. of Pa., 4 Blnn. 244; 
 Greeley v. Waterhouse, 19 Me. 9; Leland v. The Ship Medora, 2 
 Woodb. & M. 92; The Bray v. Bates, 9 Met. 237; Thorndlke v. 
 Stone, 11 Pick. 187; Rucher v. Conyngham, 2 Pet. Adm. 295; The 
 Mary, 1 Paine, 671; Northwestern Ins. Co. v. Seward, 36 N. Y. 139. 
 
§' 153.] MISCELLANEOUS RULES. 287 
 
 foreign port, in the absence of the owners or employers, for 
 the purpose of raising money for repairs or equipment, or 
 to enable the ship to return to her home port. But, it must 
 be a case of necessity, both as to the money required, and 
 this way of raising it ; so that, if the necessary amount of 
 money can be obtained on the credit of the owners or em- 
 ployers of the ship, or otherwise, the master is not author- 
 ized to borrow it on bottomry or respondentia.^' 
 
 The owners, or part owners, may hypothecate the ship 
 by a bottomry contract, to the extent of their respective 
 interests.^'' While in a bottomry contract by the owner 
 the necessity of hypothecation is not essential to its valid- 
 ity, as in case of the master, it is essential that the lender 
 should assume the risk, and put his money at hazard, in 
 order to constitute a bottomry bond proper.^' The owner 
 may, of course, mortgage or pledge his ship, as he could 
 any other personal property, subject to the common law 
 rules applicable to such securities. 
 
 § 153. Miscellaneous. — There are some other rules con- 
 nected with this subject which may be conveniently no- 
 
 i« Story, Agen. § 116; Abb. Ship. (7 Am. Ed.), p. 203; 2 Pars. 
 Cont. (7 Ed.), pp. 281, 284; Putnam v. The Polly, Bee Adm. 157; 
 The Aurora, 1 Wheat. 96; Hurry v. The John and Alice, 1 Wash. 
 293; Walden v. Chamberlin, 3 Wash. 290; Crawford v. The Wil- 
 liam Penn, Id. 484; Patton v. The Randolph, Gilp. 457; Kleim- 
 worth V. Marrittinia, 2 App. Cas. 156; The Fortitude, 3 Sumn. 
 246; The Ship Packet, 3 Mason, 255; The Royal Stuart, 33 Eng. 
 L. & Eq. 602; 2 Pars. Ship 23; Gager v. Babcock, 48 N. Y. 154. 
 
 IT The Duke of Bedford, 2 Hagg. Adm. 294; The Mary, 1 Paine, 
 671; The Draco, 2 Sumn. 157; The Hilarity, Blatchf. & H. Adm. 
 90; Miller v. The Rebecca, Bee Adm. 151; Thorndike v. Stone, 11 
 Pick. 183; Greeley V. Waterhouse, 19 Me. 9. 
 
 18 See The Jane, 1 Dod. 466; The Emancipation, 1 Wm. Rob. 
 129; The Lord Cochrane, 2 Wm. Rob. 320; The Hunter, Ware, 341; 
 The Brig Atlantic, 1 Newb. Adm. 514. 
 
288 MISCEliLANEOUS EULES. [§' 153. 
 
 ticed in passing, without special regard to logical arrange- 
 ment. 
 
 1. "The contract of hypothecation made by the master 
 does not transfer the property of the ship, but only gives 
 the creditor a privilege or claim upon ^t, to be carried into 
 effect by legal process." ^* 
 
 2. The owner is not personally bound by a bottomry bond 
 executed by the master ; the personal remedy of the lender 
 being against the master, unless the bond provides for his 
 exemption from personal liabilily.^'' 
 
 3. A bottomry bond takes precedence as a security to 
 every other claim for the voyage on which it is founded, 
 except the claim for seaman's wages, which are sacred "as 
 long as a single plank of the ship remains." '■^ 
 
 If the lender on bottomry discharges the wages due to 
 the crew, he will be entitled to the same priority and lien 
 on the proceeds of the ship, which they would have.^^ 
 
 4. The bottomry bond does not vest in the lender any 
 absolute indelible interest in the ship; hence, as against 
 subsequent purchasers or creditors it must be enforced 
 within a reasonable time, or yield to their superior equities. 
 So, also, as to judgment creditors; if, for example, the 
 bottomry holder permits the ship to make several voyages 
 without asserting his lien, and in the mean time other cred- 
 os Johnson v. Shippin, 2 Ld. Raym. 984; Blaine v. Ship Charles 
 
 Carter, 4 Cranch, 328; United States v. Delaware Ins. Co., 4 Wash. 
 C. C. 418. 
 
 ittThe Nelson, 1 Hagg. 169, 176; Stalnbank v. Fanning, 6 Eng. 
 L. & Eq. 412; The Virgin, 8 Pet. 538. 
 
 21 The Sidney Cove, 2 Dod. 1, 13; The Madonna D'Idra, 1 Dod. 
 40; Blaine v. The Ship Charles Carter, 4 Cranch, 328; The Mary 
 Ann, 9 Jur. 95; The Constancia, 10 Jur. 850. 
 
 22 The Kammerheive v. Rosencratz, 1 Hagg. Adm. 62; The Vir- 
 gin, 8 Pet. 583. 
 
5 153.] MISCELLANEOUS ElILBS. - 289 
 
 itors levy executions upon the ship, the holder wiU lose 
 his lien." 
 
 5. On the arrival of the ship ia the home port, if the loan 
 be not paid according to its terms, the bottomry holder 
 has his remedy in the Court of Admiralty, by a proceed- 
 ing in rem. On the proper application to the Court under 
 the procedure in Admiralty, the ship will be seized and 
 held to await the adjudication of the claims of the several 
 parties interested, who wiU be cited to appear before the 
 Court, if they wish to be heard. The Court has power tc 
 decree a sale of the ship, if necessary, which will be con- 
 ducted by the Marshal of the District, or other proper 
 officer, and the proceeds brought into court for distribution 
 among the claimants, as justice and equity may require." 
 
 6. It should be mentioned in this connection that a bot- 
 tomry bond may be sustained as to some of the claims for 
 which it was given, and held invalid as to others; iu other 
 words, it may be good in part, and bad in part.^° 
 
 7. While, as a rule, the maritime interest may be what 
 the parties agree upon, the Court has power to reduce it, 
 and wUl do so if, under all the circumstances, the rate be 
 oppressive and unjustifiable. In the exercise of this 
 power, however, the Court will act with caution, and, in 
 the absence of fraud, will disturb the agreement of the 
 parties only in extreme eases, and in obedience to the im- 
 perative demands of justice and equity.*' 
 
 23 Blaine v. The Ship Charles Carter, 4 Cranch, 328; Leland v. 
 Medora, 2 Woodb. & M. 92, 105; Packard v. Louisa, Id. 49; The 
 Chusan, 2 Story, C. C. 468; The Brig Nestor, 1 Sumn. 85. 
 
 24 Abb. Ship. (7 Am. Ed.), p. 223. 
 
 26 The Aurora, 1 Wheat. 96; The Packet, 3 Mason, 255; The Tar- 
 tar, 1 Hagg. 1; The Nelson, Id. 169; The Hero, 2 Dod. 139. 
 
 26 The Zodiac, 1 Hagg. 320, 326; The Ysabeli, 1 Dod. 273; The 
 Augusta, Id. 283; The Packet, 3 Mason, 255; Wilmer v. The Sml- 
 lax, 2 Pet. Adm. 295. 
 19 
 
290 BENT. [§ 154, 
 
 V. Bent. 
 
 § 154. Definition and properties. — Mr. "Washburn de- 
 fines as "a right to the periodical receipt of money or 
 money's worth in respect of lands, which are held in pos- 
 session, reversion or remainder, by him from whom the 
 payment is due." ''' In Bouvier's Law Dictionary we find 
 the following definition: "A return or compensation for 
 the possession of some corporeal inheritance, and is a cer- 
 tain profit, either in money, provisions, or labor, issuing 
 out of the lands and tenements, in return for their use." "' 
 Careful attention to these definitions will show that the 
 principal and characteristic properties of rent are, a profit 
 to the proprietor of lands or tenements, certain in its char- 
 acter or capable of being reduced to a certainty, issuing 
 periodically out of the subject of the demise to or posses- 
 sion of the party from whom payment is due, which must 
 be corporeal in its nature. The proprietor is called the 
 landlord, the other party, the tenant, and the profit or 
 compensation for the use of the premises, the rent.^" Rent 
 cannot issue out of a mere privilege or easement.^" 
 
 It is not essential to rent that the profit or compensation 
 for the use of the land should be in money ; it may be wheat, 
 com, or other produce of the land, fowls, or, indeed, any 
 other personal property; so, also, it may consist in services 
 or manual operations, rendered by the tenant to the land- 
 lord." 
 
 ST 2 Washb. Real Prop. 272. 
 
 28 2 Bouv. L. Diet. "Rent;" And L. Diet. "Rent." 
 
 2» 3 Kent, Com. p. 460; 2 Bouv. L. Diet. "Rent;" Tayl. Land, and 
 Ten. § 369, et seq.; Tlede. Real Prop. §§ 641-646. 
 
 30 3 Kent, Com. p. 461; 2 Black. Com. p. 41; Glib. Rents, 9; Buz- 
 zard v. Capel, 8 Bru. & C. 141. 
 
 •I Authorities cited supra, under this section. 
 
§ 155,] KINDS OP RENT. 291 
 
 § 155. The kinds of rent. — ^At common law there are 
 three Mnds of rent, known, respectively, as rent service, 
 rent charge, and rent seek. 
 
 Rent service, as its name indicates, is that in which cor- 
 poral service is rendered in return or as a compensation 
 for the use of the land; and this kind is annexed to and 
 connected with a reversionary estate remaining in the 
 grantor. 
 
 Bent charge, is where the owner of the rent has no fu- 
 ture interest in the land, hut in his grant reserves to himself 
 a rent, with a clause authorizing its collection by distress. 
 
 Bent-seek — reditus siccus — is simply a rent reserved by 
 deed, without the distress clause, and which can only be 
 collected by an ordinary action at law. 
 
 There is another species of rent mentioned in the books, 
 called a fee-farm rent, which is, in fact, a rent-charge 
 issuing out of an estate granted in fee. It is, therefore, 
 omitted in the foregoing classification.** 
 
 The design and scope of this work will not justify a 
 full discussion of these different species of rent, with the 
 rules applicable to each. And, indeed, such discussion 
 would be of little benefit, by reason of the changes in the 
 common law, both in England and in the United States. 
 The difference between them, so far as the remedy for 
 their xecovery is concerned, has been abolished in Eng- 
 land,'" and generally in this country, distress for rent be- 
 ing authorized if payment is not made or renderd when 
 due. In some of the States of the Union, however, distress 
 for rent has been abolished by statute in all cases. 
 
 The subject of rent is introduced and will be treated, 
 
 »s Authorities, supra, under this section. 
 u 4 Geo. II, c. 28. 
 
292 BEMEDY BY DISTBESS. [§ 156. 
 
 mainly, in its character as a chose in action, which justifiea 
 its discussion in a treatise on Personal Property. 
 
 § 156. Remedy by distress. — This is an ancient and effi- 
 cient remedy for the collection of rent, when available 
 for that purpose. At common law, as we have seen,** this 
 remedy does not exist in case of rent-seek, but it has been 
 extended by statute to all kinds of rent, and is now avail- 
 able to the landlord in most, if not aU, of the States of the 
 Union, except those in which distress for rent has been 
 abolished by statute. 
 
 Originally, distress as a remedy extended to other 
 cases than rent in arrear, as, for example, the case of cattle 
 of a stranger found by the owner of lands on his premises, 
 damage feasant. The owner might distrain the cattle 
 as a pledge until he received satisfaction for the injury 
 sustained by the trespass.'* In the case of rent in arrear, 
 the landlord might seize any personal chattels found on 
 the demised premises as a pledge for the payment of the 
 over-due rent. In both cases, and others in which distress 
 was allowable, the distraining party was bound to hold the 
 pledge until the other party, as pledgor, saw fit to redeem 
 it. If the other party offered pledges for the satisfaction 
 of the injury, or the performance of his duty, and the 
 landlord should persist in holding the chattels distrained, 
 the owner thereof might recover them by writ of replevin.** 
 
 The ancient common law rule, and practice, have been 
 so far changed, that distress now consists of a summary 
 seizure and sale of the property subject to distress, to ob- 
 tain satisfaction for the injury, or payment of the claim. 
 
 s< Supra, § 155. 
 
 »» 3 Black. Com. p. 7. 
 
 MTayl. Land, and Ten. § 557; 3 Black. Com. pp. 6, 7, and note. 
 
§' 156.] REMEDY BY DISTRESS. 293 
 
 To the existence of the right of distress, and for its 
 exercise, there are several essential elements and rules de- 
 manding attention. 
 
 1. There must be an actual demise, at a certain fixed 
 rent, or an amount that may be reduced to a certainty by 
 calculation.'^ 
 
 2. The relation of landlord and tenant must be fuUy 
 completed, and not merely in contemplation ; an agreement 
 for a lease will not suffice; but the relation once estab- 
 lished, the right of distraining being incident thereto, the 
 landlord can only be deprived of it by a termination of 
 the tenancy." A parol lease will be sufficient to create the 
 relation and authorize a distress.'" 
 
 3. An unsatisfied judgment for the rent, does not, at 
 common law, extinguish the right of distress.** A prom- 
 issory note, given and accepted for the rent, will not defeat 
 the right of distress, unless upon agreement of the parties 
 to the effect that it shall so operkte, or it be taken in ab- 
 solute payment.*^ A surrender of part of the premises 
 will not bar a distress as to the residue.*^ But it has been 
 held, that if the landlord has treated his tenant as a tres- 
 
 87 Dunk V. Hunter, 3 Barn. & Adol. 332; Valentine v. Jackson, 
 9 Wend. 322; Grier v. Cowan, Addis. 347; Reeves v. McKenzie, 1 
 Bailey, 500; Moulton v. Norton, 5 Barb. 286; Jackson v. Smith, 1 
 Bay, 315; Smith v. Colson, 10 Johns. 91; Smith v. Fyler, 2 Hill, 
 648. 
 
 38 Schuyler v. Leggett, 2 Cow. 660; Jack v. Smith, 1 Bay, 816; 
 Hegan v. Johnson, 2 Taunt. 148; Knight v. Bennett, 3 Bing. 361. 
 
 3» Citations last supra, and Cornell v. Lamb, 2 Cow. 652. 
 
 40 Snyder v. Kunckleman, 3 Penn. 490; Chipman v. Martin, 13 
 Johns. 240; Bautleton v. Smith, 2 Binn. 146; Bates v. Nellis, 5 
 Hill, 651. 
 
 "Peters v. Newkirfc, 6 Cow. 103; Snyder v. Knuckleman, 3 
 Penn. 487; Harris v. Shlpway, Bull. N. P. 182; Davis v. Fyde, 4 
 Nev. ft M. 462; Bailey v. Wright, 3 McCord, 484; Warren v. Tor- 
 ney. 13 Serg. & R. 52. 
 
294 REMEDY BT DISTRESS. [§' 156. 
 
 passer he, cannot lawfully distrain, even though the latter 
 remains in possession down to the day of the distress.*' 
 
 4. The right of distress is canceled by a legal tender of 
 the amount due, althougli not made until after the rent- 
 day; or even not tiU after the commencement of distress pro- 
 ceedings, provided the tender includes the expenses of 
 such proceedings.** But it is too late after cattle are 
 actually impounded, because they are then in custody of 
 the law.*' 
 
 5. Any one of several joint tenants may distrain for 
 the whole rent, and may appoint an agent to do so without 
 the assent of his co-tenants.*' But co-parcenors, before 
 partition, must all join in the proceedings ; after partition 
 they may severally distrain.*^ Tenants in common must 
 distrain severally.*' 
 
 At common law, the landlord could only distrain during 
 the continuance of the term, as a privity of estate between 
 the tenant and the distrainor was essential to the right of 
 distress. By statute in England,** the rule was so changed 
 that the distress could be made at any time within six 
 months next following the determination of the lease, pro- 
 vided the lahdlord's title or interest stiU continued, and 
 
 *2 Peters v. Newkirk, 6 Cow. 103. 
 
 *8 Bridges v. Smyth, 2 Moore & P. 740; Jackson v. Sheldon, 6 
 Cow. 103. 
 
 ** Williams v. Howard, 3 Munf. 277; Hunter v. Loconte, 6 Cow. 
 728; Six Carpenters' Case, 8 Rep. 14C6; Hunter v. Blain, 2 Bailey, 
 168; Virtue v. Beasly, 2 Mood. & M. 21. 
 
 *» Ladd V. Thomas, 12 Ad. & Bl. 117. 
 
 loPullen T. Palmer, 3 Salk. 207; Robinson v. Hoffman. 4 Blng. 
 562; Bearinger v. O'Hare, 26 Iowa, 259. 
 
 *i Steadman v. Page, 1 Salk. 390; Co. Lit. 1636. 
 
 "Whitley v. Roberts, 1 McClel. & Y. 107; Harrison v. Barnsby, 
 5 Term R. 246. 
 
 " 8 Anne, c. 14. 
 
§ 156.] BEUEDY BT DISTBESS. 295 
 
 the tenant remained in possession. This statute, in sub- 
 stance, has quite generally been adopted in the United 
 States.*' There are, also, various statutory provisions on 
 the subject- of distress in the several States of the Union, 
 which must be consulted by the practitioner when neces- 
 sary. 
 
 7. As a distress can only be taken for rent in arrear, the 
 landlord cannot legally make the seizure until the day fol- 
 lowing that on which it is payable, the tenant having until 
 the last minute of that day to make payment, and will not, 
 therefore, be in default until the following day."* At com- 
 mon law, a distress for rent cannot be made in the night, 
 but must be a work of the day, between sunrise and sun- 
 set." 
 
 8. In making a distress, if there be several articles in the 
 house subject thereto, the landlord may seize upon any one 
 in the name of all, with the declaration that none shall be 
 removed until his rent is paid, and this, it is held, will au- 
 thorize him to follow an article thereafter removed with- 
 out his consent."* The landlord, for the purpose of making 
 a distress, may enter into any building through the doors 
 and windows which are unfastened, but if fastened, he 
 cannot lawfully break them open. If, however, an en- 
 
 Bo Terboss v. Williams, 5 Cow. 407; Christman v. Floyd, 9 Wend. 
 340; Burne v. Richardson, 4 Taunt. 720; Buckup v. Valentine, 19 
 Wend. 554; Bell v. Potter, 6 Hill, 497; Weller v. Shearman, 2 
 Denio, 362. 
 
 siGano v. Hart, Hardin (Ky.), 297; Duppa v. Mayo, 1 Saun. 
 2S7; Evan v. Herring, 27 N. J. L. 243. 
 
 62 Co. Litt 142o; Gilb. DIstr. 50; Attenbergh v. People, Car. & 
 P. 212; Tutton v. Darke, 5 Hurl. & N. 654; Sherman v. Duch, 16 
 111. 283; Fry v. Breckinridge, 7 B. Mon. 31. 
 
 03 Wood V. Munn, 5 BIng. 10; see Hutchinson v. Scott, 2 Mees. & 
 W. 809. 
 
296 REMEDY BY DISTRESS. [§ 156. 
 
 trance be gained through an open outer door, an inner may 
 be broken for the lawful purpose in view."* 
 
 9. It is the general common law riile, that all the mov- 
 able goods and chattels found on the premises may be 
 taken upon a distress for rent, whether they belong to the 
 tenant, under-tenant, or some other person."" To this gen- 
 eral rule, however, there are various exceptions, both at 
 common law and by statute, but the exceptions are not uni- 
 form in number or character in aU the states of the Union. 
 It would not be profitable to notice them in detail here, 
 did the limitations of the work permit, as the practitioner 
 will necessarily acquaint himself with the peculiar laws 
 of his own state on the subject."' 
 
 10. The goods and chattels distrained must be safely 
 and properly kept, the tenant duly notified of the seizure, 
 and then, after the expiration of the time prescribed by 
 law, if due notice of the time and place of the sale has been 
 given, and the chattels have not been redeemed, the land- 
 lord may sell them at public auction, or sufficient of them 
 to pay the rent in arrear, together with interest and cost 
 of distress proceedings. The place and mode of keeping 
 the distrained property, the notice of seizure to, and day of 
 grace for, the tenant, the notice and manner of sale, and 
 other particulars connected with the proceedings, have 
 varied in the course of time, and are not at present uni- 
 
 0*1 Rol. Abr. 671, 1, 7, 17; Co. Litt. 161a; Semayn's Case, 6 Co. 
 R. 91; Williams v. Spencer, 4 Johns. 352; State v. Thackaw, 1 
 Bay, 358; State v. Armfleld, 2 Hawks, 246. 
 
 B5 Spencer v. McGown, 13 Wend. 256; Holt v. Jobnson, 14 Johns. 
 425; Kesler v. McConachy, 1 Rawle, 435; O'Donnel v. Seybert, 13 
 Serg. & R. 57; Howard v. Rawsay, 7 Harr. & J. 120; Davis v. 
 Payne, 4 Rand. 334; Reeves v. McKenzIe, 1 Bailey, 497; Blanch v. 
 Bradford, 38 Pa. St. 344; Stevens v. Lodge, 7 Blackf. 594. 
 
 08 See 3 Kent, Com. pp. 476-479. 
 
§ 157.] OTHER REMEDIES. 297 
 
 form throughout the Union. But the aim of legislation, 
 and of the administration of the law, is, to afford the land- 
 lord a summary, efficient remedy for the collection of his 
 rent, and at the same time to protect the tenant from in- 
 justice and oppression. On seizing the goods and chattels 
 of the tenant, the distrainor is quite generally and very 
 properly required to give notice to the former of the dis- 
 tress, with an inventory of the articles taken, and a state- 
 ment of his claim for rent, thus affording him an oppor- 
 tunity of redeeming his chattels by paying the rent and 
 costs, or of intdligently declining so to do for what he may 
 deem sufficient reasons. Five days are usually allowed by 
 law for redemption, and five days previous notice of the 
 time and place of sale required, but as already stated, the 
 rules governing the proceedings are not uniform." 
 
 There are some minor incidental rules connected with 
 this topic, the discussion of which is necessarily omitted, 
 but to these the attention of the reader wiU be directed by 
 a study of the rules and principles set forth in this sec- 
 tion, and the authorities cited. 
 
 § 157. Remedies by actions at law, and a suit in 
 equity. — ^Por rent in arrear the landlord has a remedy by 
 action of debt, covenant, and assumpsit, and in some cases 
 by a suit in equity. 
 
 1. Action of debt. — ^At common law an action of debt is, 
 in most cases, the appropriate remedy. It is called by this 
 name because it is brought for the recovery of debt, eo 
 nomine and in numero. In the common law classification 
 of actions, the term debt implies a liquidated or certain 
 sum of money due.'* 
 
 BT Tayl. Land, and Ten. §§ 605-614; 3 Kent, Com. p. 480. 
 
 88 Steph. PI. (9 Am. Ed.), p. 14; Chit. PI. (7 Am. Ed.), p. 123. 
 
298 OTHEB BEMEDIZS. [§ 157. 
 
 "While damages are generally awarded for the detention 
 of the debt, they are in most cases only nominal, and not 
 the principal object of the action, aa in covenant and as- 
 Buinpsit.''* 
 
 By this action all kinds of rent, certain in amount, are 
 recoverable, whether the demise be by deed or by parol; 
 and whether payable in money, or produce of the land re- 
 served by the lease. If payable in money, the plaintiff 
 will recover the debt, and interest on it from the time it 
 became due and payable ; if payable in produce, he will 
 recover its value, and interest thereon from the stipulated 
 time of delivery." 
 
 As this action is founded on the privity of contract an- 
 nexed to the person in respect to the estate, and follows it 
 when the estate is transferred, the remedy passes with it. 
 Hence, if the lessor grants his reversion, the remedy fol- 
 lows to the grantee, and if he assigns it the remedy passes 
 to the assignee.'^ 
 
 2. Action of covenant. — This action lies for the recovery 
 of damages for the breach of a covenant or contract under 
 seal, whether express or implied, and whether contained 
 in a deed poll or indenture.'^ It is the peculiar remedy 
 for the breach of covenant when the damages are unliqui- 
 dated, depending upon the opinion of a jury.'* But it is, 
 in most cases, a concurrent remedy with the action of 
 
 «»Tayl. Land, and Ten. § 615; 3 Kent, Com. p. 472; McKeon v. 
 Whitney, 3 Denlo, 452. 
 
 •0 Denny v. Parnell, 1 Rol. Abr. 591, L. 28; Cheney's Case, 3 
 Leon. 260; Ven Rensselaer's Ex'rs v. Jewett, 5 Denio, 135. 
 
 01 Walker's Case, 3 Rep. 22B; Humble v. Oliver, Cro. Bliz. 328; 
 Howland v. Coffin, 12 Pick. 125. 
 
 02 1 Chitt. PI. (7 Am. Ed.), p. 131; Steph. PI. (9 Am. Ed.), p. 
 16; Tayl. Land, and Ten. § 661; Gale v. Nixon, 6 Cow. 445. 
 
 •a Richards v. Killam, 10 Mass. 243, 247; Smith t. Stewart, 6 
 Johns. 48. 
 
§ 157.] OTHER BEHEDIBS. 299 
 
 debt.** But there are some exceptions; as, for example, 
 where there has been an eviction from part of the land, 
 the action of covenant wiU not lie against the lessee, be- 
 cause his liability arises on his personal covenant, which 
 cannot be apportioned; nor can a person not a party or 
 privy to the deed maintain an action of covenant, except 
 where the common law rule has been changed by statute. °° 
 It lies only in favor of a person who is a party to the cove- 
 nant, and in the name of the covenantee, who holds the le- 
 gal interest; not in the name of a person only beneficially 
 interested ; nor can such person be joined in the action."" 
 
 3. Action of assumpsit. — The action of assumpsit gives 
 stm another remedy. This action lies for a breach of a 
 simple contract, that is a contract not under seal, whether 
 parol or written. It may be either express or implied. 
 "Where there is no express promise, the law implies a prom- 
 ise to do that which a party is, in justice, bound to per- 
 form; in other words, if the party makes no promise for 
 himself in such case, the law makes it for him by imputa- 
 tion." A landlord may recover in this action a reasonable 
 satisfaction for the use and occupation of his lands and 
 tenements Tinder any agreement, express or implied, not 
 under seal. The recovery is not for rent, technically, as 
 in the action of debt, but an equivalent therefor, namely, 
 a reasonable compensation for the use and occupation of 
 
 •4 March v. Freeman, 3 Lev. 383; Byron v. Johnson, 8 Term R. 
 410; Hartshorne v. Watson, 5 Scott, 506. 
 «8 Tayl. Land, and Ten. | 662. 
 
 66 Jenkins v. Norton, 3 B. Mon. (Ky.), 28; Wolf v. Washburn, 
 6 Cow. 201; Strohecker v. Grant, 18 Serg. & R. 237; Lord South- 
 ampton V. Brown, 6 Bam. & C. 718; Howe v. Howe, 1 N. H. 49; 
 Berkly v. Hardy, 5 Barn. & C. 355. 
 
 67 staph. PI. (9 Am. Ed.), p. 19; 1 Chit. PI. (7 Am. Ed.), pp. 
 112, 113; Bishop, Cont. (2nd Enl. Ed.), § 184; 2 Black. Com. p. 
 443. 
 
300 OBLIGATION TO PAT EENT, ETC. i[§ 158. 
 
 the premises. If the compensation is fixed by agreement, 
 it will govern the measure of damages ; if not, the damages 
 mn&t be determined by proofs aliunde." 
 
 4. A suit in equity. — There are cases in which the law 
 fails to furnish the landlord an adequate remedy, and in 
 such cases it is the province of equity to grant relief." 
 
 In some of our states, it should be observed, the powers 
 and functions of law and equity are blended in one trib- 
 unal. The essential distinction, however, between law and 
 equity is not, as many suppose, obliterated, but, simply, 
 the two departments of jurisprudence are administered by 
 one and the same court, instead of two distinct and inde- 
 pendent tribunals. Law is still law, and equity is equity, 
 as of old, each with its peculiar principles and rules of ad- 
 ministration. 
 
 § 158. Obligation to pay rent; eviction a defense. — 
 Where the relation of landlord and tenant exists, whether 
 created by specialty or simple contract, the tenant is under 
 obligation to pay rent, even without an express covenant 
 in the lease to that effect. In the absence of an express 
 covenant, the law will, as we have seen,'* supply an im- 
 plied promise to pay, which is equally binding upon the 
 tenant. At common law, under an express covenant to 
 pay rent, the obligation of the tenant will continue for the 
 term, although the tenement, in the meantime, be destroyed 
 by fire or other external violence, unless the lease other- 
 wise provides.''^ The tendency in modern times has been 
 
 osTayl. Land, and Ten. § 635, et seq.; 1 Chit. PI. (7 Am. Ed.), 
 pp. 112, 120, et seq. 377. 
 
 «» See 1 Story, Bq. Jur. §§ 684-687; 1 Pom. Eq. Jur. § 189; Tay- 
 lor, Land, and Ten. §§ 656-660. 
 
 10 Supra, I 157, sub. 3; and see Tayl. Land, and Ten. § 371. 
 
 71 Gates v. Green, 4 Paige, 535; HoUzapffel v. Baker, 18 Vea. 
 
§ 158.] OBLIGATION TO PAT KENT, ETC. 301 
 
 to a relaxation of this severe rule, and in some of our states 
 it has been changed by statute, relieving the tenant from 
 payment of rent thereafter, on destruction of the tenement, 
 until the premises are restored to a tenantable condition. 
 Nevertheless, prudence suggests the insertion of a provi- 
 sion in the lease for the protection of the tenant in such 
 a contingency. 
 
 The obligation of the tenant to pay rent is upon the im- 
 plied condition that he shall have the peaceable and quiet 
 possession and enjoyment of the demised premises, with- 
 out disturbance or eviction by the landlord, and if sued 
 for the rent, the landlord's breach of this covenant will 
 constitute a good defense. An eviction" by the landlord 
 from part of the premises will release the tenant from ob- 
 ligation to pay rent, even on the part retained by him, the 
 contract, and the consideration, being each a unit, and in- 
 divisible by the wrongful act of the landlord.'"' 
 
 Eviction from the whole of the demised premises by the 
 lawful act of a third person, has the same effect upon the 
 obligation of the tenant as an eviction by the landlord, but 
 not so where the eviction by a third party is from a part, 
 only, of the premises, in which case the rent will be appor- 
 tioned, and the tenant obliged to pay for the portion en- 
 joyed by him." 
 
 415; Lamott v. Stenet, 1 Harr. & J. 42; Philips v. Stevens, 16 
 Mass. 240; Howard v. Doolittle, 3 Duer, 464; Willard v. Tillman, 
 19 Wend. 358; 3 Kent, Com. p. 465, et seq.; Gibson v. Perry, 29 
 Mo. 245; White v. Molyneux, 2 Ga. 124. 
 
 72Tayl. Land, and Ten. §§ 378, 379; 3 Kent, Com. pp. 464, 465; 
 Pendleton v. Dyett, 4 Cow. 581; 8 Cow. 727; Hope v. Eddington, 
 Lalor, 43; Ogilvie v. Hull, 5 Hill, 52; Crommelin v. Thiess, 31 
 Ala. 412; Jackson v. Eddy, 12 Mo. 209; Day v. Watson, 8 Mich. 
 
 635. 
 
 TsHegeman v. McArthur, 1 E. D. Smith, 147; Christopher v. 
 Austin, 11 N. T. 216; Vermilyea v. Austin. 2 B. D. Smith, 203; 
 
 7 
 
302 APPOBTIONMENT OF EENT. [§' 159. 
 
 Actual physical expulsion is not necessary to produce an 
 eviction. The tenant is entitled to the quiet, peaceful, and 
 beneficial enjoyment of the premises, without molestation 
 or annoyance from the landlord, either directly or indi- 
 rectly, and acts by the latter which deprive the tenant of 
 such enjoyment of the premises will, in contemplation of 
 law, amount to an eviction. For example, using, or per- 
 mitting the use of an apartment connected with the de- 
 mised premises, as a place of resort for lewd women, there- 
 by producing nocturnal noise and disturbance, has been 
 held an eviction.'* 
 
 The eviction, to constitute a valid defense to an action 
 for rent, must have taken place before the rent fell due. 
 It will not, therefore, bar a recovery for rent already due." 
 
 § 159. Apportionment of rent. — It is a rule of the com- 
 mon law, that a unit of indebtedhess, or obligation, cannot 
 be divided into fractions, or "split up" as it is generally 
 expressed, and enforced by action in separate parts, there- 
 by subjecting the debtor to the trouble and expense of sev- 
 eral suits for the one original cause of action. The case 
 of rent forms an exception to this rule, being in some in- 
 stances subject to apportionment.'* A few examples will 
 sufBee for the present purpose. As rent is an incident to 
 the reversion, whenever that is severed, either by act of 
 
 Carter v. Burr, 39 Barb. 59; Blair v. Claxton, 18 N. Y. 529; TIley 
 V. Moyers, 43 Pa. St 404; Stevenson v. Lambard, 2 East, 576; 
 Hunt v. Cope, Cowper, 242; Lawrence v. French, 25 Wend. 443; 
 . Ludwell V. Newman, 6 Tenn. 458. 
 
 T* Pendleton v. Dyett, 4 Cow. 58; Cohen v. Dupont, 1 Sandf. 260. 
 
 T» Giles y. Comstock, 4 N. Y. 270; Kesler v. McConachy, 1 Rawle, 
 335; Boynton v. Bobbitt, 2 Vent. 68; Stokes v. Cooper, 4 Camp. 
 514; Whitney v. Myers, 1 Duer, 267. 
 
 7*3 Kent, Com. pp. 469-471; Tayl. Land, and Ten. §§ 383-385. 
 
§ 159.] APPOETIONMBNT OP RENT. 303 
 
 the parties or by operation of law, the rent will follow the 
 reversion, and become payable to the assignees or owners 
 of the respective portions thereof.^^ Whenever there is a 
 severance by act of law, there will be an apportionment of 
 the rent; as upon a descent of the reversion among heirs, 
 or a judicial sale of part of the demised premises, the ten- 
 ants wiU be bound to pay rent to the heirs or purchasers, 
 respectively, for the portion of the premises belonging to 
 each.'* In case a lessor, being owner of the fee, dies after 
 rent becomes due, it is payable to his executors or adminis- 
 trators, and not to the heir at law, but if he dies before 
 the rent accrues, it belongs to the heir, and not to his ex- 
 ecutors or administrators.''" Where the rent is payable at 
 stated periods during the term, as quarterly or monthly, 
 the portion due and unpaid at the lessor's death, having, 
 by severance from the reversion, become a chose in action, 
 falls into his personal estate, and hence is payable to his 
 executor or administrator, while the portion not yet due 
 remains an incident to the reversion, and passes with it to 
 the heir. 
 
 There are other species of personal property, but none 
 possessing peculiarities that require special treatment, as 
 
 TTNellis V. Lothrop, 22 Wend. 121; Van Rensselaer v. Jonea, 
 2 Barb. 643; Van Rensselaer's Bx'rs v. Gallup, 3 Denlo, 454; Cuth- 
 bert v. Kuhn, 3 Whart. 366; Farley v. Craig. 6 Halst. 262: McEl- 
 lery v. Flannagan, 1 Har. & G. 308; Van Rensselaer v. Bradley, 3 
 Denio, 135; 3 Kent, Com. p. 376. 
 
 TsCole v. Patterson, 25 Wend. 456; Walter v. Flint, Cro. Ellz. . 
 742; Linton v. Hart, 25 Pa. St. 193; Crosby v. Loop, 13 111. 625. 
 
 '7» Cole V. Patterson, supra, and Duppa v. Mayo, 1 Saund. R. 
 287; Barwlck v. Foster, Cro. Jac. 227; Norrls v. Harrison, 2 Mad. 
 Ch. R. 268; Gheen v. Osborn, 17 Serg. & R. 171; Ex parte Smyth, 
 1 Swanst 338. 
 
304 APPOBTIONSUSNT OF BENT. [§' 159. 
 
 they present no serious difficulties, and none that may not 
 be readily solved by an intelligent application of the prin- 
 ciples and rules developed and illustrated on the foregoing 
 pages. 
 
 There only remains for consideration in this treatise, 
 the devolution of personal property on the death of its 
 owner, which is the subject of the next, and last, chapter. 
 
§ 160.J GENiaiAL EULBS. 305 
 
 CHAPTER XV. 
 
 DBVOLXrriON OF PERSONAL PROPERTY ON DEATH OF 
 
 OWNER. 
 
 9 160. General rules. 
 
 § 160. General rules. — The owner of property, both real 
 and personal, when not under disability, may, by last will 
 and testament, determine its disposition after his death.^ 
 Dying intestate, his real estate descends directly to his 
 heirs, and his personal property, after payment of debts 
 and expenses of administration, passes indirectly to his 
 next of kin. Who constitute heirs, and the order of inheri- 
 tance, is determined by statutes, called statutes of descent; 
 the next of kin, and rules of distribution, are also pre- 
 scribed by statutes, called statutes of distribution. These 
 statutes are generally based upon the English statutes of 
 distribution,^ and which Mr. Kent says were borrowed 
 from the 118th novel of Justinian.* But, while the Ameri- 
 can statutes are based on the English, there are some points 
 of difference between them, and although the statutes in 
 the several states of the Union are alike in general char- 
 acter and policy, there are differences among them more 
 or less marked. It is, therefore, impracticable to state the 
 rules of distribution applicable to all parts of our national 
 domain, without a special examination of the local laws of 
 each state, which the character and scope of this work will 
 
 1 Supra, §§ 90-95. 
 
 2 22 and 23 Charles II, ch. 10. 
 
 3 See 2 Kent, Com. p. 420, et seq.; 1 Bouv. L. Diet. "Distribu- 
 tion;" 1 Sch. Pers. Prop. pp. 747-750; Williams, Pers. Prop. pp. 
 361-368; Goodeve Pers. Prop. p. 285, et seq. 
 
306 GENERAL RULES. [§ 160. 
 
 not permit. It may be assumed that the practitioner will 
 be familiar with the general principles of law on the sub- 
 ject, and he wiU consult the local statutes when necessary 
 for guidance in matters under consideration.* 
 
 This brief chapter closes the discussion, in outliae, of the 
 Law of Personal Property. In taking leave of the subject, 
 and of his readers, the writer would fain indulge the hope 
 that his earnest desire to present this important branch of 
 the law in a helpful manner will not be regarded by his 
 professional brethren as a failure. 
 
 «2 Kent, Com. p. 422. 
 
INDEX. 
 
 [References are to pages.] 
 
 A. 
 
 ABATEMENT, 
 
 of legacies 231,232 
 
 ABSOLUTE, 
 
 property, absolute and qualified 2 
 
 and conditional legacies 229,232 
 
 ABSENCE 
 
 of defendant from the State extends the time for 
 tommencing action against him 201 
 
 ACCESSION, 
 
 defined 60 
 
 title to fruits of the earth by 61 
 
 title to increase of animals by 61, 62 
 
 materials of one person united t6 those of another.. 62, 63 
 
 ACCEPTANCE (see Sams), 
 
 offer and acceptance 135,137,138 
 
 under the Statute of Frauds 145-147 
 
 the complement of delivery on sales 175, 176 
 
 ACCORD AND SATISFACTION (see Debts), 
 
 defined; discharge of debts by 266,267 
 
 ACCOUNT, 
 
 rendition of by violator of trade-mark compelled. ... 96, 97 
 
 ACKNOWLEDGMENT, 
 
 of debt barred by statute of limitations 202-204 
 
 ACTION, 
 
 by vendor of personal property 188, 189 
 
 by vendee of personal property 189-194 
 
 by landlord for rent in arrear 297-299 
 
 ADEMPTION, 
 
 of legacies explained 232, 233 
 
308 DtDXX. 
 
 [References are to pages.] 
 
 ADMINISTRATORS (see Intestacy), 
 
 history and incidents of the law of Intestacy, and ad- 
 ministration 105-108 
 
 powers and duties of administrator 107 
 
 liability of decedent's subscription for stock 250, 251 
 
 ADMIRALTY (see Bottomet, and Respondentia, Bonds), 
 
 remedy for holder of these bonds in court of 288 
 
 AGEJNT, 
 
 each partner the agent of all 35 
 
 ALIEN ENEMIES, 
 
 property of liable to seizure and confiscation In time 
 of war 62 
 
 testamentary Incapacity of 125 
 
 ALLODIAL (see E3state, Real and Personal), 
 
 difference between allodial, and feudal tenure 25 
 
 AMBULATORY (see Fixtubes— Wills), 
 
 fixtures sometimes real, and sometimes personal 
 property 7 
 
 wills are ambulatory 130 
 
 ANIMALS, 
 
 ferw naturcB, reclamation of 58, 59 
 
 title acquired by redaimant 59 
 
 dividing line between wild, and tame 68, 59 
 
 title to increase of animals by accession 61, 62 
 
 APPROPRIATION (see Payment), 
 
 of payments 184 
 
 on sale of goods not specific 157 
 
 property acquired by 50 
 
 APPORTIONMENT, 
 
 of rent 302, 303 
 
 ARBITRATION, 
 
 proTision for in contract of insurance 220, 221 
 
 ASSENT (see Sales). 
 ASSETS, 
 
 of a corporation, on dissolution, a trust fund 251, 252 
 
 ASSIGNMENT, 
 
 as to authority of one partner to assign partnership 
 property 37 
 
INDEX. 309 
 
 [References are to pages.] 
 
 ASSrGNMB3NT— Co»«»wed, 
 
 of corporate stock by the owner 42 
 
 gift of chose in action by assignment 118 
 
 equitable assignments 118 
 
 ASSUMPSIT, 
 
 action of for rent in arrear 299 
 
 EL 
 
 BAILMENT, 
 
 defined and explained 196 197 
 
 general property in bailor, special in bailee 197 
 
 BANK NOTES, 
 
 lost or stolen, bona fide holder of protected , 55, 56 
 
 BANKRUPTCY (see Insoltewot). 
 BARGAIN AND SALE (see Sales). 
 BEQUEST, 
 
 meaning and use of the term 126 
 
 BOTTOMRY, AND RESPONDENTIA, BONDS, 
 
 defined and explained 285, 286 
 
 meaning of the terms "hypothecation," and "mari- 
 time interest" 285 
 
 nypothecation by the master, or owner 286 
 
 does not transfer property of ship 288 
 
 owner not personally bound by a bond executed by 
 
 the master 288 
 
 the bond takes precedence as security to every other 
 
 claim for the voyage except seamen's wages 288 
 
 as against creditors the bond must be enforced with- 
 in a reasonable time 288 
 
 remedy of holder in Admiralty, by a proceeding in 
 
 rem 289 
 
 the court has power to reduce the stipulated rate of 
 
 interest 289 
 
 BURIAL RIGHTS (see Moetuaey Peopeett). 
 
 
 
 CALXiS (see Stock and Stockholdees). 
 CAPITAL STOCK (see Stock aud Stockholdeks). 
 
310 INDEX. 
 
 [Beferences are to pa^es.] 
 
 CAPTURE^ 
 
 title to goods captured In war 51 
 
 in whom, or where, the title vests 52, 53 
 
 in marine captures the property, and legality of the 
 
 seizure, determined by a prize court 52 
 
 property of alien enemies subject to seizure 62, 53 
 
 right of seizure and confiscation not the same upon 
 land as in naval warfare 63 
 
 CHATTELS, 
 
 definition, and derivation, of "chattel" 22, 23 
 
 real, and personal, defined and distinguished 22, 23 
 
 wife's transferred to husband by marriage 113 
 
 CHECK, 
 
 payment by 182 
 
 CHOSBS, IN POSSESSION, IN ACTION, 
 
 origin and meaning of the word "chose" 23 
 
 In possession, and in action, what are 23, 24 
 
 wife's transferred to husband by marriage 113, 114 
 
 CHURCH FURNITURE, 
 
 sometimes personal, and sometimes real, property; 
 
 the law governing 18, 19 
 
 rights of a pew-holder 19 
 
 bells, organs, furnaces, stoves and pipes, may become 
 
 real property or fixtures , 20 
 
 COMMERCIAL PAPESR, 
 
 warranty in the sale of 172 
 
 lost or stolen, when indorsed in blank, or payable or 
 Indorsed to bearer, not recoverable by the owner 
 
 from a bona fide purchaser 56, 57 
 
 COMMON CARRIER, 
 
 effect of delivery to, on sale of goods 174 
 
 CONDITIONS (see Saub — Instjeance), 
 
 the several kinds, and effects, in contracts of sale . . 167, 168 
 CONGRESS, 
 
 power to create corporations 39 
 
 to grant patents, and copyrights 67, 68 
 
 to establish uniform laws on the "subject of bank- 
 ruptcies throughout the United States" 111,112 
 
INDEX. 311 
 
 [References are to pages.] 
 
 CONFUSION OF GOODS (see Accession). 
 
 OONSmURATION, 
 
 how failure of aftects contracts of sale 158,159 
 
 effect of Illegal consideration 159 
 
 new, unnecessary to validate new promise 204,205 
 
 CONSTITUTIONAL (see Money). 
 
 CONTRACT, 
 
 executory, and executed 133 
 
 transfer of title by 152,157 
 
 power of, possessed by corporations 40, 41 
 
 power of joint-stock companies to contract 44, 45 
 
 authority of partners to bind co-partners by 36, 37 
 
 contract with alien enemies invalid 53 
 
 between the state and a patentee 67. 68 
 
 Implied contract of auditors not to violate lecturer's 
 
 right of property in his lecture 88 
 
 whether judgments are contracts 102, 103 
 
 Insurance contracts 207-209 
 
 subscription for stock a contract 242 
 
 Illegal contracts of sale 166, 167 
 
 CONTRIBUTION, 
 
 between co-shareholders when one is compelled to 
 
 pay a debt of the company 249 
 
 COPYRIGHT, 
 
 defined '^6 
 
 nature, and source, of the right 76-78 
 
 how to secure the statutory right 78-81 y 
 
 essentials to a valid copyright 81-84 
 
 merit, or value, essential 82 
 
 seditious, or libellous, publications, outlaws 83 
 
 immoral productions not protected 83 
 
 blasphemous publications under legal condemnation 83,84 
 remedies for infringement 84 
 
 CORPORATIONS, 
 
 defined, and how created • 38 
 
 Congress, and the State legislatures, each power to 
 
 create corporations ' 
 
 39 
 classification of 
 
312 INDEX. 
 
 CORPORATIONS— (7o««ntted. 
 
 act through their officers, and other agents 39 
 
 the officers, in a sense, superior to their principal...: 40 
 
 power of contract substantially the same as that of a 
 
 natural person 41, 42 
 
 Interest of individual corporators In the corporate 
 
 property 41 
 
 what the term stock, in its full import, embraces.. 41 
 
 owner of stock may assign it, and what the assignee 
 takes 42 
 
 CORPSE (see Moettjaey Peopeety), 
 
 quasi property in, conferring upon relatives the right 
 
 of custody and control 20, 21 
 
 to whom the right, and place, of burial belongs.... 20,21 
 
 CORRUPTION OP BLOOD (see Foe™ituee), 
 
 provisions in relation to, in the Federal Constitution, 
 and Act of Congress 99 
 
 CREDITS (see Goods, Waees, Meechandise, Etc.). 
 
 CREDITORS (see Debtoe and Ceeditoe), 
 
 contracts in fraud of, voidable 165, 166 
 
 gitte prejudicial to the rights of. Invalid IIS 
 
 ri^nts of, as against corporations, and stockholders 241-246 
 
 COVENANT, 
 
 action of, for rent in arrear 298, 299 
 
 COUNTEIRFEIT, 
 
 payment in counterfeit bills not good 182, 183 
 
 COVERTURE, 
 
 as affecting testamentary capacity 128 
 
 D. 
 
 DAMAGES, 
 
 an essential element In an actionable fraud 163 
 
 vendee, in some cases, entitled to special 191 
 
 DEBTS (see Debtoe and Ceeditoe), 
 
 definition, and classification, of 258, 259 
 
 a debt of record defined 259, 260 
 
 Judgment roll of a court of record, authority of 260, 261 
 
 distinction between courts of general, and of special, 
 
 jurisdiction 260, 261 
 
INDEX. 313 
 
 [Eeferences are to pages.} 
 DEJBTS — Continued. 
 
 Judgment Impeachable for want of Jurisdiction, or 
 
 for fraud 261,262 
 
 respecting Impeachment of foreign judgments 261-264 
 
 eftect of foreign judgments as res judicata 264 
 
 debts by recognizance 264 
 
 specialty debts explained 265 
 
 what are simple contract debts 265, 266 
 
 how debts are discharged 266, 267 
 
 by payment 180-184 
 
 as to payment In Legal Tender notes 255, 266 
 
 by accord and satisfaction 266, 267 
 
 by bankruptcy 108-112 
 
 release by act of the parties, or by operation of law 269-271 
 
 by rescission of contract 271 
 
 by lapse of time 198, 199 
 
 by novation; what It is 272 
 
 by former recovery 272, 273 
 
 action of debt for rent 297,298 
 
 debt from donor to donee subject of a gift to the lat- 
 ter 117 
 
 DEBTOR AND CREDITOR (see Insolvency— Debts), 
 question of fixtures between them and the heir or 
 
 vendee, and the widow 10 
 
 gifts prejudicial to creditors Invalid 118-120 
 
 stoclcholder's liability to creditors 241-245 
 
 assets of a corporation, on dissolution, constitute a 
 
 trust fund for the benefit of creditors 251, 252 
 
 sale of goods in fraud of creditors, invalid 165, 166 
 
 ownership of property subject to the just claims of 
 
 creditors - < 
 
 DEFEASANCE (see Moetgaqes). 
 DELIVBRT, 
 
 essential to a gift 117-120 
 
 difEerent kinds of delivery 117-176 
 
 delivery under the Statute of Frauds 145, 146 
 
 In respect to a transfer of title 154 
 
 effect of delivery to common carrier 155-177 
 
314 INDEX. 
 
 [References are to pages.] 
 
 DELIVERY — Continued. 
 
 In performance of the contract of sale 172-176 
 
 how, and 'where, delivery to be made 173 
 
 delivery of Insurance policy 212, 213 
 
 DEVISE, 
 
 testamentary disposition of real estate 126 
 
 DEVOLUTION, 
 
 of personal property on death of the owner 305, 306 
 
 DISOHABGE (see Debts). 
 
 DISTRIBUTIVE SHARES, 
 
 defined and explained 235,236 
 
 DISTRESS (see Rent), 
 
 remedy of landlord for rent In arrear 292,297,298 
 
 DONOR, AND DONEE (see Gifts Ihteb Vivos, and 
 
 Causa Mobtis). 
 DOUBLE INSURANCE (see Insubancb). 
 
 E. 
 EASEMENT, 
 
 grant of burial lot in a churchyard, or public ceme- 
 tery, generally an easement 2(^ 
 
 EMBLEMENTS, 
 
 defined, and doctrine of, stated 12 
 
 what products the tenant may remove 12, 13 
 
 who, and when, entitled to 13-15 
 
 incidents of 15 
 
 EMINENT DOMAIN, 
 
 power of the State to take private property for pub- 
 lic use; a, limitation of absolute worship 4 
 
 ESTATE, 
 
 derivation, and meaning, of the word 24, 25 
 
 properly applicable to real property only, but fre- 
 quently applied to personal, and sometimes both 
 
 to real and personal property 25, 26 
 
 the feudal tenure prevails in England; in the United 
 States, lands are allodial; the difference explained 25,26 
 
INDEX. 315 
 
 [References are to pages.3 
 
 ESTATE3 — Continued. 
 
 when "estate" is applied to personal property, It may 
 
 represent an absolute, or qualified. Interest 25,26 
 
 real estate of a partnership, on dissolution, treated 
 
 as personalty, and part of the assets 251 
 
 EFFECTS (see Goods, Waees, Mebohandise, Etc.). 
 EXECUTOR (see Title by Will ob Testament), 
 
 question of fixtures between executor and ,helr, de- 
 visees, executor of tenant for life, and remainder 
 
 man or reversioner 10 
 
 succeeds to decedent's liability on subscription for 
 
 stock 250,251 
 
 EXEX3UTI0N, 
 
 interest of an owner in common subject to 32, 33 
 
 and so of a partner's in the common property 37, 38 
 
 money subject to levy under execution 257, 258 
 
 EQUITY, 
 
 enforces equitable assignments 118 
 
 upholds gifts between husband and wife 120 
 
 furnishes remedy for infringement of trade-marks.. 96,97 
 
 remedy in, for infringement of copyright 84, 85 
 
 restrains violation of author's right in lectures 89 
 
 remedy in, for infringement of patents 76 
 
 decrees payment of subscription for stock, for the 
 
 benefit of creditors 246 
 
 aids stockholder in securing his rights 241-245 
 
 rules in, governing the transfer of stock 248, 249 
 
 affords relief to mortgagor 280 
 
 foreclosure of equity of redemption in 284, 285 
 
 remedy of landlord in, for arrear of rent 300 
 
 restrains unauthorized publication of letters 86 
 
 enforces specific performance of contract 191 
 
 EXPECTANCY (see Pbesonal Pbopeety), 
 
 personal property in, now recognized . . . ., 27, 28 
 
 EXCLUSIVE, 
 
 exclusive right of property defined 1 
 
 ETVICTION (see Rent), 
 
 when a defense to an action for rent 301, 302 
 
316 INDEX. 
 
 [References are to pa?ea.l 
 
 F. 
 
 FEUDAL (see Estate, Reai. and Pe^bsohai.), 
 
 distinction between feudal, and allodial, tenure.... 25,26 
 
 FIXTURES, 
 
 defined 7,8 
 
 ambulatory; sometimes real and sometimes personal, 
 
 property 7, 8 
 
 conditions tliat may determine which 8 
 
 rules for guidance in determining 8, 9 
 
 annexation to the soil, actual, or constructive 8,9 
 
 character of, affected by the parties interested 10 
 
 time of removal ' 10, 11 
 
 as subjects of chattel mortgages 276, 277 
 
 FORECLOSURE (see Moetgaoes), 
 
 of the equity of redemption 243 
 
 FORFEITURE, 
 
 definition, and examples of 98, 99 
 
 law of in England, and in the United States 99 
 
 when title passes by 99, 100 
 
 forfeiture for crime limited in the United States .... 99 
 
 of stock for non-payment of subscription 243 
 
 forfeiture odious in law 100 
 
 FRAUD, 
 
 vitiates title to trade-mark 93, 94 
 
 affects the validity of patents 73, 74 
 
 Its effect upon wills 129 
 
 vitiates contracts of sale 160-166 
 
 impeachment of judgments for 260, 261 
 
 FRUITS OF THE EARTH (see Accession), 
 
 title to, by accession 61 
 
 FURNITURE (see Chuech Fuenitttbe). 
 
 G. 
 
 GIFTS INTER VIVOS, 
 
 definition, and subjects of IIS, 117 
 
 delivery essential 117, 118 
 
INDEX. 317 
 
 [References are to pagrea.] 
 
 GIFTS INTER VIVOS— Continued. 
 
 may be constructive or symbolical, or to a third per- 
 son 117 
 
 debt due from donee to donor subject of a gift to the 
 
 former 117 
 
 donor may make himself trustee of the gift 117 
 
 gift of a chose in action by assignment 118 
 
 stolen goods not the subject of a gift as against the 
 
 owner 118 
 
 gifts prejudicial to the rights of creditors invalid.. 118 
 
 gifts on condition, with reservation, or in trust.... 119 
 
 gifts between parent and child 119 
 
 a gift ordinarily not presumed 120 
 
 gifts between husband and wife 120 
 
 when upheld in equity 120 
 
 gifts, when revocable, and when irrevocable 120 
 
 GIFTS CATJSA MORTIS, 
 
 defined 121 
 
 law of, derived from the civil law 121 
 
 occupy middle ground between gifts inter vivos, and 
 
 legacies 121. 122 
 
 essentials to gifts causa mortis 122, 123 
 
 donee derives title directly from donor 123 
 
 delivery essential 123 
 
 distinction between delivery to agent of donor, and 
 
 a trustee of the donee 123 
 
 revocation of; not revoked by donor's subsequent 
 
 will 124,125 
 
 GOODS LOST OR ABANDONED, 
 
 the finder acciuires title by occupancy 54 
 
 owner's title and rights not lost until he abandons 
 
 the intention of reclaiming his goods 54 
 
 the finder, if he knows the owner, and conceals the 
 
 finding, may be held guilty of larceny 54, 55 
 
 acquisition of title by finding limited to goods on the 
 
 earth's surface; not applicable to treasure-trove.. 55 
 
 stolen corporeal property recoverable by the owner, 
 
 even from a bona fide purchaser 55 
 
 7 
 
318 INDEX. 
 
 [References are to pages,] 
 
 GOODS LOST OR ABANDONED— Continued. 
 
 a different rule applies to money, bank notes, and 
 
 current negotiable securities 66 
 
 duties of the finder, compensation, etc 56 
 
 title not acquired by tortious conversion 64, 65 
 
 GOODS, WARES, MERCHANDISE. EFFECTS, AND 
 CREDITS, 
 
 meaning, and use, of the terms 26,27 
 
 GRANT, 
 
 of burial lot In a churchyard, or public cemetery, 
 generally an easement 20 
 
 H. 
 
 HEIR-LOOM, 
 
 character, and law of, defined 16 
 
 examples of 17 
 
 do not pass by devise or bequest separate from the 
 
 freehold; the reason 17 
 
 HONEY-BEES, 
 
 property In, and rules governing 59 
 
 HUSBAND AND WIFE (see Maebiage), 
 
 •wife's chattels transferred to husband by marriage.. 113 
 
 law in regard to gifts between 120 
 
 HYPOTHECATION (see Bottomet, and RESPONDjafTiA, 
 
 BOT^DS), 
 
 master, or owner, may hypothecate ship, or cargo.. 286,287 
 by master, does not transfer property of the ship... 288 
 
 I. 
 
 INDORSEMENT, 
 
 title by, and sale of negotiable instruments 194, 195 
 
 INFANT, 
 
 testamentary capacity of 127, 128 
 
 competency to contract 134 
 
 INJUNCTION, 
 
 unauthorized publication of letters restrained by. . . , 85, 86 
 vioaltion of proprietary right in lectures restrained 
 by 89 
 
INDEX. 319 
 
 [References are to pases.] 
 
 INJUNCTION — Continued. 
 
 infringement of trade-marks restrained by 89 
 
 husband sometimes restrained from recovering prop- 
 erty of 'Wife in an action at law 115 
 
 INSOLVENCY, 
 
 meaning of the terms insolvency, and hanJeruptoy . . 108 
 
 distinction between bankrupt, and insolvent, laws.. 109,110 
 
 general purposes, and effect, of insolvent laws 110, 111 
 
 United States bankrupt, and insolvent, laws Ill 
 
 limitations of the power of the States to make 112 
 
 ■when statutes of the United States and of the States 
 conflict, the latter are suspended, but not abro- 
 gated by an act of Congress 112 
 
 the classes of persons embraced by insolvent laws.. 110 
 
 INSURANCE, 
 
 defined, and terms employed 206, 207 
 
 nature, and form, of the contract 207-209 
 
 the several classes of policies defined 209-211 
 
 consummation of the contract 211-213 
 
 what constitutes delivery 213, 214 
 
 subject-matter of the contract 214 
 
 . Insurable interest 214-216 
 
 warranties, and representations; two classes of each, 
 
 afflrmative and promissory 216-219 
 
 special provisions of the contract 219-222 
 
 limitation of time for commencing an action on the 
 
 policy 220 
 
 provision for arbitration, to what extent binding. . . 220, 221 
 
 mutual insurance 222-224 
 
 INTENTION, 
 
 of parties a factor in determining the character of a 
 
 thing as a fixture, or otherwise 9 
 
 as affecting question of a transfer of title 153. 154 
 
 INTEREST (see Joint Ownees), 
 
 interest policy of Insurance 211 
 
320 INDEX. 
 
 [References are to pages.] 
 
 INTESTACY, 
 
 definition, history, and incidents of 105-108 
 
 where title to Intestate's property rests intermediate 
 his death, and the appointment of an administrator 105-108 
 
 J. 
 
 JOINT OWNERS, 
 
 joint-ownership defined, and the unities constituting 
 
 it explained 29 
 
 rules appertaining to the relation 29-31 
 
 each entitled to an equal share of the rents. Income 
 
 and profits, during his life 3C^ 
 
 possession of one, the possession of all 31 
 
 Joint-ownership, how severed 31 
 
 partners joint owners of their stock in trade and 
 
 effects, but without the right of survivorship.... 36 
 
 JOINT-STOCK COMPANIES, 
 
 defined; in what respects like, and in what unlike, 
 
 corporations, and partnerships 42, 43 
 
 business managed by ofileers and agents 45 
 
 may take, hold, and alien, property, real, and per- 
 sonal 45 
 
 are regulated by statute 43 
 
 JOINT TENANTS (see Joint Ownees), 
 
 each may distrain for the whole rent in arrear 313 
 
 JUBGMBNT (see Debts), 
 
 defined, and classified 102,103 
 
 whether judgments are contracts 102, 103 
 
 what, and when, judgments transfer title 103-105 
 
 authority of a judgment roll of a court of record 260,261 
 
 Impeachable for want of jurisdiction, or fraud 260, 261 
 
 distinction between courts of general, and of special, 
 
 jurisdiction 260, 261 
 
 as to impeachment of foreign judgments 261, 262 
 
 effect of, as res judicata 264, 272, 273 
 
 JXXRISDICTION (see Debts — Judgment), 
 
 impeachment of judgments for want of 260-262 
 
INDEX. 321 
 
 [References are to pases.] 
 
 L. 
 
 LANDLORD AND TENANT (see Rent), 
 
 question of fixtures between 10 
 
 landlord's remedies for rent in arrear 292-302 
 
 LAECENT, 
 
 finder of lost goods may become guilty of 54, 55 
 
 LAST WILL OR TESTAMENT (see Title by Wnx ob 
 
 Testament). 
 
 LEXDTURES. 
 
 product of intellectual labor 87,88 
 
 their creator bas a common-law proprietary right in 
 
 them 88 
 
 the right not lost by oral delivery 88 
 
 as to rights of persons admitted to hear public lec- 
 tures 88 
 
 the same rules, substantially, apply to playright. ... 88,89 
 
 statutes in England, and in the United States 89 
 
 remedies for violation of the right 89 
 
 LEGACIES, 
 
 likeness, and unlikeness to gifts causa mortis 121 
 
 the several kinds 126 
 
 defined, and classified 225-227 
 
 minor divisions, rules, and Incidents 227-231 
 
 residuary legacy 228 
 
 vested, and contingent, legacies 228, 229 
 
 absolute, and conditional, legacies 229, 230 
 
 lapsed legacies 230,231 
 
 abatement of 231,232 
 
 ademption of 232, 233 
 
 payment, and satisfaction, of 233-235 
 
 LETTERS BETWEEN CORRESPONDENTS, 
 
 products of intellectual labor, and subjects of prop- 
 erty 85 
 
 respective rights of the writer, and receiver 85 
 
 unauthorized publication of, restrained by a court of 
 
 equity *8 
 
 21 
 
 J 
 
322 INDEX. 
 
 [References are to pases.] 
 
 LETTERS BETWEEN CORRESPONDENTS — Continued. 
 every letter, in contemplation of law, has literary 
 
 merit, in which a property right exists 87 
 
 the receiver has a corporeal property in the material 
 on which the letter is written, and the right to 
 its possession 87 
 
 LIEN (see Sales), 
 
 vendor's lien on sale of goods 176 
 
 corporation's for debt of share-holder 249 
 
 stock in hands of vendee may be subject to a corpo- 
 rate lien for debt of vendor to the company 249 
 
 LIMITATIONS, 
 
 of absolute ownership 3, 4 
 
 common law, and statutory, limitations 198-200 
 
 when the period of limitation begins to run 200,201 
 
 debt barred by statute revived by new promise 201-205 
 
 no new consideration requisite 204 
 
 revival of barred debt by acknowledgment 202-204 
 
 effect of part payment 203 
 
 limitation affects the remedy, only 204. 
 
 limitation of action on policy of insurance 220, 221 
 
 on deposit notes In mutual insurance company 223,224 
 
 M, 
 
 MANURE, 
 
 when real, and when personal, property 17, 18 
 
 payment by 183,184 
 
 offer by 135 
 
 MARITIME, 
 
 right of seizure of enemies' goods in war 61-53 
 
 MARITIME INTEREST, 
 
 extra interest for loan of money on bottomry, or re- 
 spondentia, bonds 28.') 
 
 MASTER OF SHIPS (see Bottombt and Respondkntia, 
 Bonds), 
 personally bound on bottomry bond executed by him 288 
 
INDEX. 323 
 
 [References are to pages.] 
 MARRIAGE. 
 
 transfers wife's chattels to husband 113 
 
 husband's right to wife's closes in action, and how to 
 
 obtain absolute title, and possession 113 
 
 they belong to the wife in her own right, when the 
 
 husband dies before reducing them to irossession. . 114 
 when husband can gain possession only through ad- 
 ministration of wife's estate 114 
 
 no unjust discrimination in law against the wife.... 114 
 
 marriage lays burdens upon the husband, from which 
 
 the wife is relieved 114, 115 
 
 ma,rital unit broken Into fractions by modern legis- 
 lation 115 
 
 marriage, as affecting wills 131 
 
 MATERIALS, 
 
 title by accession on union of materials of different 
 
 persons 62-65 
 
 MAXIMS, 
 
 usqum ad ccelum; usquw ad inferos 2 
 
 sic utere tuo ut aUenum non Icedas 3 
 
 salus populi suprema lex 4 
 
 vigilanWbus, non dormientibus, leges subveniunt . . . . 96 
 
 cessante ratione legis, cessat et ipsa lex 62, 158 
 
 qui prior est in tempore, prior est in jure 70 
 
 ignorantia juris neminem excusat 157 
 
 caveat emptor 161 
 
 simplex commendatio non obligat 161 
 
 MERCHANTABILITY (see Sazes), 
 
 warranty of in sales 171 
 
 MERCHANDISE (see GiooDS, Wares, Meechandise, Etc.). 
 
 MISTAKE (see Sales), 
 
 mistake of fact negatives assent 136 
 
 its effect in avoiding contracts 157, 158 
 
 MOBILITY (see Real, and Peksonal Peopebtt), 
 
 the principal characteristic of personal property..* 5,6 
 
 MODE, 
 
 modes of acquiring title classified and analyzed.... 46,47 
 
324 INDEX. 
 
 [References are to pases.] 
 
 MONET, 
 
 a price In, paid or promised, essential to a sale 138 
 
 what constitutes a good tender 185 
 
 "money" defined 254 
 
 constitutional money 254-257 
 
 the "Legal Tender Acts" 255,256 
 
 the States may prescribe the currency in which debts 
 
 due them for taxes may be paid 257 
 
 creditors may stipulate In contracts in which debts 
 
 due them thereunder shall be paid 257 
 
 subject to levy under execution 257, 258 
 
 stolen, not recoverable by owner from a tona fide 
 
 purchaser 57 
 
 MONUMENTS (see Mobtuaet Peopeety), 
 
 personal property of holder of the buriai lot 20 
 
 MORTGAGES, 
 
 definition, and essential elements of 274 
 
 formal requisites of 274-276 
 
 parol chattel mortgages valid at common law 275 
 
 writing generally reijuired by statute 275 
 
 separate, and parol, defeasance 275, 276 
 
 subjects of chattel mortgage 276-278 
 
 fixtures may be 277 
 
 possession of the mortgaged property 279 
 
 distinguished from a pledge 280, 281 
 
 from a conditional sale with the right to re-purchase 283 
 
 relief in equity for the mortgagor 282 
 
 foreclosure of the equity of redemption 284, 285 
 
 MORTUARY PROPERTY, 
 
 kinds, legal rules, and burial rights 20, 21 
 
 grant of a burial lot generally an easement only. ... 20 
 vaults, monuments, and decorations of the grave, per- 
 sonal property of the holder of the lot 20 
 
 a quasi property in a corpse, giving relatives the 
 
 right of custody and control 20, 21 
 
 to whom the right, and place of, burial belongs 21 
 
INDEX. 325 
 [References are to pages.] 
 
 K 
 
 KEGOTIABL^ SSK!UIIITIES (see Indobsement), 
 
 title of a lona fide purchaser protected 66 
 
 sale of, and indorsement 194,195 
 
 NEW PROMISE (see Limitations), 
 
 revives debt barred by the statute 201, 202 
 
 NOTE, ETC. (see Sales), 
 
 requisites under Statute of Frauds 149 
 
 NOVATION (see Debts), 
 
 defined, and discharge of debt by 272 
 
 o. 
 
 OCCUPANCY. 
 
 the first known method of acquiring title 48-51 
 
 foundation of the right of private property 48-51 
 
 property acquired by appropriation 61 
 
 right of possession originally limited to act of posses- 
 sion 50 
 
 title by capture in war 51-53 
 
 maritime right of seizure '. 51, 52 
 
 of goods lost or abandoned 54-57 
 
 title by finding not extended to treasure-trove 55 
 
 finder's duty to take proper care of the goods 56 
 
 waifs, what they are, and the law of 57 
 
 reclamation of animals ferw naturcB 58-60 
 
 dividing line between wild, and tame 59 
 
 honey-bees, property in, and law governing 59 
 
 title by accession, and confusion of goods 60, 61 
 
 title to fruits of the earth 61 
 
 title to increase of animals 61, 62 
 
 materials of different persons united 62-65 
 
 respecting materials wrongfully converted 64, 65 
 
 title to products of intellectual labor 66 
 
 patents for Inventions and designs 66-76 
 
 copyright, the law of 76-85 
 
 letters between correspondents 85, 86 
 
 lectures, property and rights of authors in. 87-89 
 
 trade-marks, the law of 89-97 
 
326 INDEX. 
 
 [References are to pages.] 
 
 OFF£Sl (see Sauss), 
 
 different modes of, and acceptance 135,136 
 
 under the Statute of Frauds' 145-147 
 
 , OFFICERS, 
 
 of corporations, authority and power of 39,40 
 
 of joint-stock companies 42,43 
 
 ORGANIZATION, 
 
 liability of stockholders in case of defect In 246,247 
 
 OWNER, 
 
 of stolen corporeal property may recover It, even 
 
 from a bona fiie purchaser 65 
 
 not BO in respect to money, hank notes, and commer- 
 cial paper indorsed in blank, or payable or in- 
 dorsed to bearer 66 
 
 OWNERSHIP IN COMMON (see TeaiANTS in Common), 
 
 defined, and how differing from joint-tenancy 31,32 
 
 incidents and rules of 32, 33 
 
 P. 
 
 PARENT AND CHILD, 
 
 gifts between 119 
 
 PARTIES. 
 
 how question of fixtures aSected by 10, 11 
 
 competency to contract 134 
 
 testamentary capacity 127-129 
 
 PARTNERS, 
 
 definition, and leading characteristics, of 35 
 
 joint owners of their stock in trade and effects, but 
 
 without survivorship 35 
 
 on dissolution of partnership they become tenants in 
 
 common of the partnership property 36 
 
 death of one works a dissolution of the partnership 36 
 
 his interest, passes to his personal representatives, 
 
 who become tenants in common with the survivors 36 
 
 the survivors have the exclusive right to the posses- 
 sion of the partnership property, for the purpose 
 of closing up the affairs of the concern, and adjust- 
 
INDEX. 327 
 
 [References are to pages.] 
 
 PARTNERS— Continttcd. 
 
 Ing the equities; but they hold the property aa trus- 
 tees 3(( 
 
 real estate of the partnership treated in equity as per- 
 sonal property 36,37 
 
 each partner Is the agent of all 37 
 
 as to his authority to assign partnership property, 
 
 ■without consent of his co-partners 37 
 
 Interest of each partner in the tangible property lia- 
 ble to sale on execution for payment of his debts. 37, 38 
 the purchaser becomes a tenant in common with the 
 
 other partners ' 37,38 
 
 PAROL, 
 
 chattel mortgages when valid 274, 276 
 
 as to parol defeasance of mortgages 275 
 
 PART-OWNERS OF SHIPS, 
 
 their relation defined, and distinguished from joint 
 owners; generally tenants in common of the ship, 
 
 and may be partners 34, 35 
 
 PATENTS, 
 
 title to by original acquisition 66, 67 
 
 defined, and policy of the law of 67, 68 
 
 contract between the inventor and the State 67 
 
 subject of, regulated by statute 67, 68 
 
 essentials in a patentable invention 68-71 
 
 mode of obtaining, and conditions of, a valid patent 72-74 
 
 other poihts in the law of patents 74, 75 
 
 PAYMENT, 
 
 by note or bill 180 
 
 by check or draft 182 
 
 in counterfeit or worthless bills 182, 183 
 
 in specific articles 183 
 
 In "Legal Tender" notes 255-257 
 
 payment by mail 183,184 
 
 on Sunday, effect of 185 
 
 part payment under Statute of Frauds 148, 149 
 
 payment by vendee on sale and purchase 180 
 
328 INDEX. 
 
 [References are to pagres,] 
 
 PAYMENT — Contimied. 
 
 debt barred by statute of limitations, reylved by part 
 
 payment 203-205 
 
 payment of legacies 233-235 
 
 appropriation of payments 184 
 
 PERFORMANCE, 
 
 specific performance of contracts of sale 191 
 
 delivery, in performance of the contract 172-176 
 
 PERSONAL PROPERTY, 
 
 its characteristics; mobility the leading one 2,5 
 
 change from personal to real, and vice versa 5 
 
 duration of enjoyment an element in 6 
 
 real estate of a partnership treated as personal prop- 
 erty In equity 36,37 
 
 brain products, personal property 66 
 
 patents for inventions and designs 66, 67 
 
 letters between correspondents 85, 86 
 
 personal property in expectancy 27 
 
 statutes against perpetuities apply to 27, 28 
 
 wife's personal property transferred to her husband 
 
 by marriage, at common law 113 
 
 devolution of, on death of the owner 305, 306 
 
 PEW (see Chubch Fdbnitueb), 
 
 rights of pew-holder 19,20 
 
 PLEDGE (see Moetqage), 
 
 as distinguished from a mortgage 280, 281 
 
 liability of pledgee of stock 248,249 
 
 POSSESSION, 
 
 one of the unities constituting joint-ownership .... 29 
 
 I)Ossession of one the possession of all 31 
 
 the only unity in a tenancy in common 31, 32 
 
 right of possession originally limited to act of posses- 
 sion 50 
 
 transfer of title and possession an advance step in 
 
 the history and rights of property 50, 51 
 
 of mortgaged property 279, 280 
 
 PRifiSUMPTION, 
 
 a gift not ordinarily presumed 119 
 
INDEX. 329 
 
 [References are to pagres.] 
 
 PRODUCTS, 
 
 of the brain, title to by accession gg 
 
 of the fruits of the earth, title to 61 
 
 what products a tenant may remove 12 
 
 PROMISE (see Limitations), 
 
 new, to revive debt barred by the statute 201-205 
 
 PROPERrsr, 
 
 the term defined, and its uses 1,2 
 
 distinction between real, and personal 2, 5 
 
 absolute, and qualified, defined 3 
 
 limitations of absolute ownership 3, 4 
 
 property In brain products 66 
 
 In patents for inventions and designs 66, 67 
 
 In letters between correspondents 85, 86 
 
 In lectures 87, 88 
 
 In trade-marks 89, 90 
 
 quasi property in a corpse 20 
 
 qualified, in captured wild animals 68-60 
 
 absolute property in a thing essential to a sale 136 
 
 general property In bailor, special, In bailee 196, 197 
 
 E. 
 
 RBAIi PROPERTY (see Reai, aistd Personal, Pbopeett), 
 
 defined, and what It includes 2 
 
 RECEIVER, 
 
 in banliruptcy of a stockholder, power and duty of. . 246 
 
 RECLAMATION (see Animals), 
 
 a remedy of vendor on sale of goods 188, 189 
 
 RE-INSURANCE (see Insubance). 
 
 RE}L.EASE (see Debts), 
 
 discharge of debts by 269-271 
 
 REMEDIES, 
 
 for Infringement of copyright 84 
 
 for infringement of a patent 84 
 
 for violation of author's right in his lectures 89 
 
 for Infringement of a trade-mark 96, 97 
 
 restraining the unauthorized publication of letters. . 85 
 
 of vendee on purchase of goods 190-192 
 
330 * INDEX. 
 
 [References are to pages.] 
 
 KBSMEDIES— Continued. 
 
 of vendor on sale of goods 186-18& 
 
 of a corporation against a stockholder 242, 243 
 
 of mortgagor In equity 282 
 
 of holder of bottomry bond In a court of Admiralty. . 288 
 
 landlord's remedies for rent in arrear 292 
 
 RBJNT (see Landloed and Tbwant), 
 
 definition, and properties of 290 
 
 the kinds of rent 291,292 
 
 landlord's remedy for rent in arrear by distress.... 292-297 
 essentials to the right of distress, and incidental 
 
 rules 293-297 
 
 the right canceled by a legal tender 294 
 
 not extinguished by an unsatisfied judgment 293 
 
 any one of several joint tenants may distrain 294 
 
 goods and chattels distrained must be safely kept. . . 296, 297 
 landlord may have an action of debt for rent due and 
 
 In arrear 297,298 
 
 an action of covenant 298, 299 
 
 an action of assumpsit 299, 300 
 
 or a suit in equity in some cases 300 
 
 tenant's obligation to pay rent 300-302 
 
 apportionment of rent 302, 303 
 
 RHPRESBNTATIONS (see Sale — Insiteancb), 
 
 on sale of goods 160-162 
 
 in contracts of insurance 216-218 
 
 two classes, afflrmative and promissory 217 
 
 REJ-SALE (see Sai^s), 
 
 when vendor may re-sell 187, 18S 
 
 REVOCATION, 
 
 wills, how revoked 130, 131 
 
 of gifts inter vivos, and causa mortis 120, 124 
 
 s. 
 
 SALES, 
 
 ■ defined; elements of a valid sale 132, 133 
 
 parties competent to contract 134 
 
 . mutual assent 134, 135 
 
INDEX. 331 
 
 tKeferences are to pages.] 
 
 SAIiElS — Continued. 
 
 offer and acceptance 135,136 
 
 withdrawal of offer before acceptance 136 
 
 mistake of fact negatives mutual assent 136 
 
 subject of the sale 136, 137 
 
 Tender must have an absolute property in 136, 137 
 
 must have an actual, or potential, existence 137 
 
 a price in money, paid or promised 138 
 
 the contract as affected by the Statute of Frauds 138-149 
 
 It embraces both executory, and executed, contracts 139 
 
 contracts not embraced in it 140, 141 
 
 what embraced in "goods, wares, and merchandise". . 141, 142 
 
 statutory limit of "£10 and upwards" 143, 144 
 
 acceptance and receipt 145-147 
 
 "earnest, or part payment" 148, 149 
 
 "note or memorandum in writing" 149 
 
 contracts in respect to passing title 152-157 
 
 Intention of the parties 153, 154 
 
 delivery as related to transfer of title 154, 155 
 
 sale of specific goods unconditionally 155 
 
 of specific chattels conditionally 155, 156 
 
 of goods not specific 156, 15" 
 
 appropriation on sale of goods not specific 157 
 
 failure of consideration 157, 158 
 
 illegality of consideration 159, 160 
 
 fraudulent sales, voidable 160 
 
 misrepresentation, or concealment 160-162 
 
 intent to deceive an essential element 162 
 
 reliance upon representations, and damage 162,163 
 
 fraud on vendor 163-165 
 
 on creditors 165, 166 
 
 illegal contracts of sale 166, 167 
 
 conditions, and conditional sales 167, 168 
 
 warranties on sales 169-172 
 
 in sales by sample 171 
 
 In sales by description 171 
 
 as to merchantability 171 
 
 fitness for a particular use 171 
 
332 INDEX. 
 
 [References are to pages.] 
 
 SAIiEiS — Continued. 
 
 In sale of provisions 171,172 
 
 of commercial paper 172 
 
 delivery In performance of the contract 172, 173 
 
 how, and where, delivery to be made 173, 174 
 
 delivery to a common carrier 174 
 
 kinds of delivery, quantity, and time of 174, 175 
 
 acceptance, the complement of delivery 175, 176 
 
 the vendor's lien 176 
 
 stoppage in transitu 176-179 
 
 tender by the vendee 179, 185, 186 
 
 remedies of the vendor 186, 187 
 
 reclamation of the goods 188 
 
 actions by the vendor 189 
 
 remedies of the vendee 190-194 
 
 specific performance of the contract 191 
 
 SAMPLE (see Sai^s), 
 
 warranty on sales by 171 
 
 SATISPACTION, 
 
 of legacies 233-235 
 
 of debts 266, 267 
 
 SEAMEN, 
 
 wages of, preferred claims 288 
 
 SHARES (see Stock and Stockholdebs — ^Disteibuttve Shakes). 
 
 SHIP (see Bottomet and Respondentia, Bonds), 
 
 relation of part-owners to each other, and to third 
 
 persons 34, 35 
 
 property in, not transferred by hypothecation 288 
 
 STATUTE OP FRAUDS (see Sales), 
 
 effect of, in contracts of sale 138, 139 
 
 STOCK, 
 
 what it embraces In corporations 41, 237 
 
 stock, and shares of stock, defined 237-239 
 
 rights of a shareholder summarized 238, 239 
 
 acquisition of title by subscription 239, 240 
 
 by a transfer 241 
 
 liability of stockholder to the company, and its cred- 
 itors 241-245 
 
INDEX. 333 
 
 [References are to pagas.] 
 
 STOCK— Continued. 
 
 subscription, a contract to pay on "calls" 242 
 
 remedies of company for unpaid subscriptions . , 243-245 
 
 statutory liability of a stockholder 246, 246 
 
 stock notes in mutual insurance companies 223, 224 
 
 STOLEN PROPERTY, 
 
 stolen corporeal property recoverable by the owner, 
 
 even from a Bona fide purchaser 55 
 
 a difCerent rule obtains in respect to money, and ne- 
 gotiable commercial paper 56, 57 
 
 not the subject of a gift as against the true owner. . 118 
 
 stolen goods of a foreign merchant not deemed waifs 57 
 
 STOPPAGE IN TRANSITU (see Sai^), 
 
 a remedy of vendor 176, 179 
 
 SUBSCRIPTION, 
 
 for stock, rights and liabilities of subscriber 239-251 
 
 SUCCESSION (see Coepobations), 
 
 definition, and kinds 100, 101 
 
 common law succession 101, 102 
 
 in corporations aggregate 101 
 
 when it exists, and when not, in sole corporations.. 102 
 
 SUNDAT, 
 
 effect of payment on 185 
 
 SURVIVORSHIP (see Joint Ownees), 
 
 a characteristic of joint-ownership 30 
 
 does not belong to ownership in common 32 
 
 T 
 
 TENANT (see Embmiments — Landlord and Tenant — 
 Rent), 
 question of fixtures between landlord and tenant. ... 10 
 
 removal of fixtures by tenant 10, 11 
 
 what products tenant may remove 12 
 
 who, and when, entitled to remove products 13-15 
 
 relation and rights of tenant in common 82-34 
 
 obligation of tenant to pay rent 300-302 
 
 when eviction a defense to an action for rent 300-302 
 
334 INDEX. 
 
 [References are to pases.] 
 
 TENANTS IN COMMON (see Owneeship ik Commok), 
 partners are, of the partnership property, on a disso- 
 lution of the partnership , 36 
 
 purchaser of a partner's interest becomes a tenant in 
 
 common with the other partners 37 
 
 TENDER (see Sams — ^Money), 
 
 by vendee on purchase of goods 179, 180 
 
 the requisites of a good tender 185, 186 
 
 as to the effect of the "Legal Tender" Acts 255-257 
 
 right of distress canceled by a legal tender 294 
 
 TESTAMENT (see Last Will oe Testament). 
 
 TIME, 
 
 one of the unities in Joint ownership 29 
 
 for the removal fixtures 10, 11 
 
 of noting contract under Statute of Frauds 149, 150 
 
 of delivery on sale of goods 174 
 
 time-policy of insurance 211 
 
 limitation of time for commencing actions 200, 201 
 
 TITLE, 
 
 modes of acquiring title to personal property classi- 
 fied and analyzed 46, 47 
 
 one of the unities in joint-ownership 29 
 
 cannot be acquired by a willful tort 65 
 
 when title passes in case of forfeiture 98 
 
 when a judgment transfers title 99, 100 
 
 legal title of intestate's property in the administrator 108 
 
 wife's title to her chattels transferred to her husband 
 
 by marriage 113 
 
 title by will or testament 125-132 
 
 methods of acquiring title to stock 239, 240 
 
 title by assignment 195 
 
 by indorsement 194, 195 
 
 by bailment 196,197 
 
 by finding 54-56 
 
 where title to intestate's goods rests intermediate his 
 
 death, and the appointment of an administrator.. 105,109 
 
INDEX. 335 
 
 [References are to pages.) 
 TORTS, 
 
 damages for Injuries resulting from 104,105 
 
 wrong doer not allowed to profit by his tort 104 
 
 TRADB-MAEKS, 
 
 defined 89,90 
 
 In what sense property 90 
 
 how differing from copyright 90 
 
 a common law right 90,91 
 
 what may, and what may not, be adopted and used 
 
 as a trade-mark 91, 92 
 
 by whom, and how, acquired 92-95 
 
 freedom from fraud 93, 94 
 
 title to, will pass by operation of law 95 
 
 what constitutes an Infringement 95,96 
 
 remedies for Infringement ■ 96, 97 
 
 TRUST, 
 
 BurrlTors of a deceased partner, trustees of the part- 
 nership property 36. 37 
 
 executors and administrators hold decedent's prop- 
 erty in trust 108 
 
 assets of a corporation, on dissolution, a trust fund 
 for the benefit of creditors 251, 252 
 
 V. 
 
 VAXTLiTS (see Moktoabt Peopektt), 
 
 when, personal property 20 
 
 VENDOR AND VENDEE (see Sales), 
 
 auestion of fixtures between 10 
 
 fraud on vendor in sales 163-165 
 
 when, and when not, an implied warranty In a sale 
 
 of personal property 169, 170 
 
 duty of vendor to deliver when the sale Is complete. . 172 
 
 his lien on a sale of goods 176, 186, 187 
 
 right of stoppage in transitu 176, 177, 188 
 
 tender by vendee on purchase of goods 179, 180 
 
 special damages for breach of contract 191 
 
 VOLUNTARY, 
 
 meaning, as generally used in the law ' 116 
 
336 iNSSX. 
 
 [References are to pages.] 
 
 VOTAGB (see iNSUKAifCE, Bottombt, awd Resfondektu. 
 Boin>s). 
 
 w. 
 
 WAIFS, 
 
 stolen goods, waived or thrown away by a tMef In 
 
 his flight 57 
 
 If seized before the owner reclaims them he loses his 
 
 title 57 
 
 to whom the title passes, and how the owner may 
 
 regain his goods 57 
 
 stolen goods of a foreign merchant, not deemed waifs 57 
 
 WAGER-POLICY (see Insueance) , 
 
 a wager-policy invalid 210 
 
 WARES (see Goods, Wabes, ant Merchandise, Etc.). 
 
 WARRANTY (see Sales — Instjeance), 
 
 several kinds In sales 169-172 
 
 on sales by sample 171 
 
 by description 171 
 
 of merchantability 171 
 
 of fitness for a particular use 171 
 
 In sale of provisions 171, 172 
 
 of commercial paper 172 
 
 when there Is, and when not, an implied warranty of 
 
 title in a sale 170 
 
 remedies of vendee for a breach of 192 
 
 warranties in contracts of insurance 216, 217 
 
 WAR (see Captube), 
 
 seizure and confiscation of enemies' goods In time of 
 war 51-53 
 
 WIFE (see Mabeiase, Husbakd awd WrpE). 
 
 WILii (see Titi-e by Wiii oe Testament), 
 
 of donor does not revoke a gift causa mortis 124,125 
 
 title by, derived immediately from testator 124, 125 
 
 will or testament defined 127 
 
 testamentary capacity 127-129 
 
 written, and unwritten, wills 130 
 
 revocation of wills 130, 131 
 
 when the will takes effect 132 
 
libiii^-sp 
 
 
 81 
 II