(JflrtifU Slam i^rljocl ICtbratg 
 
Cornell University Library 
 KF 801.B62 
 
 Commentaries on the law of contracts upo 
 
 3 1924 018 805 857 
 
Cornell University 
 Library 
 
 The original of tliis book is in 
 tlie Cornell University Library. 
 
 There are no known copyright restrictions in 
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 http://www.archive.org/details/cu31924018805857 
 
COMMENTARIES 
 
 ON THE 
 
 LAW OF CONTRACTS 
 
 UPON A 
 
 NEW AND CONDENSED METHOD. 
 
 BT 
 
 JOEL PRENTISS BISHOP, LL.D. 
 
 SUPERSEDING THE AUTHOB's SMALLER ONE. 
 
 CHICAGO: 
 T. H. FLOOD AND COMPANY, 
 
 Law-Book Publishebs. 
 1887. 
 
. Entered according to Act of Congress, in the year 188?, 
 i! . -^ ■ By Joel Peentiss Bishop, 
 
 In the Office of the Librarian of Congress, at Washington. 
 
 
 , University Press: 
 John Wilson and Son, Caubbidge. 
 
PREFATORY EXPLANATIONS. 
 
 The endeavor in' this volume has been to group, set in 
 order, and illustrate the entire elementary doctrines of the 
 Law of Contracts, in such manner as to render obvious their 
 application 'in practice, and indicate the true rule where 
 opinions differ. The compressing of all into one volume, 
 contrary to what has heretofore been deemed possible, is 
 effected by a combination of means ; such as the omission 
 of useless words and phrases, the selection of short forms of 
 expression where equally perspicuous and complete in mean- 
 ing with the longer ones, the reduction of the repetitions 
 to the smallest limits consistent with clearness ; and, in its 
 several expositions, the bringing forward, not of all the illus- 
 trations of doctrines which the books contain, but simply of 
 such and so many as will render them and their applications 
 plain. Presenting the law in its orderly sequences, and 
 divested of superfluities, — beginning at the beginning of its 
 subject, and conducting the reader upward by graded steps 
 to its close, — keeping constantly before his sight the reason 
 for the particular thing in -hand, — it asks of the profession to 
 be admitted to the now vacant place of a thoroughly satisfac- 
 tory book for the student's first reading, for the practitioner's 
 often-repeated rereading, and for first consultation in practice 
 whenever a question under its title arises. Especially it claims 
 that, by reason of its peculiar structure, while thus it teaches 
 what it professes to, it prepares the reader to enter intelli- 
 gently into any further examinations which he has occasion 
 
IV PREFATORY EXPLANATIONS. 
 
 for, in the other treatises, the statutes, the digests, and the 
 decisions, the last of which it largely cites. Differing, there- 
 fore, widely from the other books on contracts, the author 
 craves attention to fuller explanations of it here than are 
 commonly deemed necessary in a preface. 
 
 In 1878, a smaller work of mine was published, entitled 
 " The Doctrines of the Law of Contracts, in their principal 
 Outlines, stated, illustrated, and condensed." It was well 
 received by the profession, a good deal used in practice, and 
 adopted as a text-book in various law-schools. Being elec- 
 trotyped, it was always in print, and many impressions were 
 manufactured from the plates. The preface states : — 
 
 " I have travelled through the adjudged cases, collected the leading 
 doctrines, and arranged from them what I deemed to be a skeleton of 
 the law of the subject, put with it so much of flesh in the form of 
 illustrations as seemed imperative, and draped the whole with as thin 
 a gauze of needless words as I deemed the public taste would bear. 
 My object has been to present the body of the law of contracts, with- 
 out its bloat, in form to be examined and re-examined, by old and 
 young, the learned and the unlearned, — the student, the practising 
 lawyer, the judge, the man of business, — as any skeleton is, by all 
 classes of inquirers." 
 
 In most respects, this work satisfied me, as far as it went. 
 But, on reflection, I deemed that its sphere might be most 
 profitably enlarged. So I have extended its scope, — adding 
 topics, collecting omitted doctrines, and somewhat increasing 
 the illustrations, — have changed in a measure the arrange- 
 ment ; and, above all, have made more prominent the reasons 
 of the law, constituting as they do the law itself. And oth- 
 erwise I have rendered the book new. In expression equally 
 concise, its former bulk is now more than doubled. Leav- 
 ing, therefore, the old book, I proceed with the elucidations 
 of the new. 
 
 First. Brevity of Expression. — Those who have observed 
 the early English statutes, and such works as Littleton's 
 Tenures, are aware that there was a time when lawyers 
 
PREFATORY EXPLANATIONS. V 
 
 wrote concisely. But afterward all the floodgates of verbi- 
 age were opened into their pens. The idea captured and 
 ruled the profession, that prolix language was in the law 
 the equivalent of precise and profound thought, so that only 
 by pyramids on pyramids of words could legal doctrine be 
 fitly enunciated. Gradually and imperfectly, in later periods, 
 this idea has been modified ; being now neither on the one 
 hand what it was, nor on the other hand what it should be, . 
 yet just how it lies in the mind of the average lawyer no one 
 can say. In 1856, the first volume of the first edition of my 
 " Criminal Law " was published ; it was specially concise in 
 language, compact, and containing an immense mass of legal 
 doctrine. But it was so grievously misrepresented and falsi- 
 fied by reason largely of its brevity of expression, that, not 
 having established a reputation, I felt compelled to expand 
 it in the second edition, not as many of our books are, but 
 by much over a hundred pages, — the only departure from 
 my own judgment which clamor ever succeeded in extorting 
 from me. And I continued this moderately expanded form 
 of writing until the Criminal Law Series was, with the ex- 
 ception of " Directions and Forms," completed. Finally, 
 being unwilling to die with the books so, and greatly need- 
 ing space for accumulated material, by immense labor, even 
 approaching that of writing new books, I condensed all. 
 But, while thus I improved them greatly for practical use,' 
 and rendered them more attractive to any enlightened gener- 
 ation which in the future may choose to look into them, not 
 certainly did I much enhance their present reputation, abso- 
 lutely not to any degree commensurate with their augmented 
 usefulness. For the condensations of the present work, 
 which have reduced to one volume what otherwise would 
 have required two or more, I have no fear; because, however 
 they may be regarded by the majority, there are now enough 
 lawyers who appreciate this sort of writing, and are willing 
 to be saved money in buying, and labor in reading, to insure 
 
vi PBKFATOET EXPLANATIONS. 
 
 me reasonable success at first, and the errors of to-day are 
 corrected by the light of to-morrow. 
 
 Prolixity of expression does not give clearness, as many 
 deem, but it obscures. Nor does it enhance precision; it 
 oftener produces vagueness and uncertainty. And, as it 
 largely appears in our law books, it increases their bulk 
 greatly beyond what those who have not looked into the 
 question imagine. For example, in writing § 426 of this 
 volume, I commenced : " Said Lord EUenborough, ' The 
 same sense is to be put upon the words of a contract in an 
 instrument under seal as would be put upon the same words 
 in any instrument not under seal.' " Having proceeded thus 
 far, I discovered that, desirous as I was of being able to 
 boast, as some authors do, of having set down the doctrine 
 "in the very words of the learned judges," I must either 
 stop this sort of doing, or have two or three volumes instead 
 of one. So I erased, then wrote : " Words signify the same 
 in sealed and unsealed contracts." Is this sentence obscure ? 
 Does it lack precision ? Is it not as lucid, as exact, and as 
 complete in meaning as that of "the learned judge"? Yet 
 it is in nine words, and " the very words " are thirty-two. 
 On which basis of calculation, had I written the present book 
 on the prolix plan, not only should I have saved half the 
 labor, but should have secured to myself three and a half 
 times the copj'right money which this doubling of it will 
 bring me. Beyond this, I should have compelled my patrons, 
 if they would derive the same benefit, to buy three and a half 
 volumes instead of one, and devote to them a large percentage 
 more of their time. If herein I have wronged my profes- 
 sional brethren, I am now ready to stand up and receive their 
 reprimand. Doubtless there are lawyers who will shut their 
 eyes, bandage their ears, and thrust into a mist their brains, 
 then refuse to look, hear, or think; and, taking this book in 
 their hands, and balancing it for its avoirdupois, propound: 
 " This work is too much condensed, the author has mistaken 
 
PREFATORY EXPLANATIONS. yii 
 
 his functions, the box is not big enough to hold the substance 
 of ten thousand six hundred and thirty cases, let him learn 
 wisdom of me ! " My answer is, that I have not written for 
 men of this class, but for those who look, see, hear, examine, 
 and think. 
 
 Secondly. Avoiding Repetitions. — No writing absolutely 
 without repetitions could be lucid. But the practice of the 
 law has created as to them a style which, however necessary 
 and to be commended in an argument to the court, or espe- 
 cially to a jury, is unfit for any printed book. The oral ad- 
 dress vanishes as fast as it is uttered ; and it is often the 
 highest art in the speaker to repeat without seeming to, and 
 still repeat, with varying phrase and fresh illustrations, the 
 same idea, until it bores and wears away its path into the 
 hearer's understanding. Without the skill to do this, and 
 the ever-present perception of its necessity, no advocate ever 
 did or ever will achieve any high success. The advocate's 
 duty pertains to the moment, and it is discharged only when 
 he carries his hearers with him. But the legal author is 
 required simply to present truth accurately and clearly ; it is 
 not his fault if a reader, not understanding at the first perusal 
 what is intrinsically plain, refuses to reread ; or if, after read- 
 ing, he closes his mind and locks his understanding against 
 conviction. And every man competent to be a legal author 
 knows that, however lucid and just his expositions are, if in- 
 volving anything contrary to the preconceptions of his read- 
 ers, they will in nine instances out of ten treat them in this 
 way ; except when stimulated by the exigencies of a cause, 
 for use in which the reading takes place. For these reasons, 
 I have striven in this boot, by devices in the arrangement of 
 it as a whole and in its minuter parts, and by other means 
 which need not be specified, I trust with success, to reduce 
 the repetitions to the minimum of what is consistent with 
 perspicuity ; beyond which, no condensation in any law writ- 
 ing is justifiable. 
 
VUl PREFATORY EXPLANATIONS. 
 
 Thirdly. The Legal Doctrine. — There are those who deem 
 legal doctrine to be a myth, like the mermaid and the sea- 
 serpent. When it is pointed out to them, they can no more 
 discern it than can other men the raven-haired maid or his 
 immense snakeship. For this they do not deserve reproach ; 
 it comes from an original defect in their mental makeup, not 
 altogether dissimilar to the incapacity to distinguish colors or 
 the notes of music. Between persons of this class and those 
 whose perceptions of legal doctrine are absolutely far-reach- 
 ing and distinct, the diversified minds of men are of every 
 imaginable grade ; each one simply agreeing with the others 
 that nothing which is not seen by " me " exists. One can 
 derive, from a judicial decision compelling a defendant to pay 
 for his two-dollar shoes, the doctrine that purchasers must pay 
 also for their five-dollar boots ; while here his vision termi- 
 nates, nothing further away being visible to him. Another 
 may be able to deduce from these two propositions a third ; 
 namely, that men of inherited fortunes, or even that all men, 
 are legally obligated to make remuneration for whatever oth- 
 ers furnish them, at their request, to eat, drink, or wear. 
 Another can extend his mental vision a little further, and 
 another further still ; but, for all, there is an outer verge 
 where the horizon closes upon their sight, and nothing is dis- 
 cerned beyond. Prominent among the causes which create 
 differences and obscurities in judicial doctrine, is the shorter 
 and longer mental vision of the different practitioners and 
 judges. In the elucidations of this volume, I have endeav- 
 ored to take into the contemplation what may be termed the 
 human horizon, or utmost reach of the ordinary judicial 
 vision, in distinction from the diversified narrower horizons 
 which bound the shorter juridical sight of different indi- 
 viduals. Upon what may lie beyond this larger, or human, 
 horizon, its province is not to speculate. 
 
 Various consequences flow from this. One is, that I set 
 down no proposition as law simply because some judge has 
 
PBEFATORT EXPLANATIONS. ix 
 
 uttered it. However imperfectly I may have carried out the 
 plan of this writing, it is first to lay every formula of doctrine 
 at what may be deemed the focus of the human horizon, and 
 then to accept it only if, on being compared with the mass of 
 doctrines within such horizon, it is found to be correct ; or if, 
 not being found so, it has become irrevocably established by 
 adjudication under the rule of stare decisis. 
 
 Another consequence is, that, by lifting and extending the 
 horizon under which various decisions in departure from the 
 better doctrine were pronounced, I have been able to state 
 the law, it is believed, in a way to produce harmony in the 
 place of discord in future adjudications. When, thirty-five 
 years ago, I made my first appearance as a legal author in 
 "Marriage and Divorce," I did not venture to entertain an- 
 ticipations so sanguine. But the observations of intervening 
 years have shown that our judges, in exact obedience to duty, 
 while paying no heed to the mere dictum of an author, or 
 even to his reasonings, if he has the folly to introduce them 
 into his book, are always swayed by the reasonings of the law, 
 whenever so presented as to be duly apprehended by them. 
 Even those few judges are who profess not to be influenced 
 by any sort of reasoning, or who deny that there is such a 
 thing as legal reason. To say otherwise would be to charge 
 our judiciary with the grossest dereliction ; for it is the first 
 and chief judicial duty to follow the law, and the law's rea- 
 sonings constitute the law. Nor is it material to the effect of 
 these reasonings whether they are suggested by a legal au- 
 thor, by counsel in a cause, by the crier of the court, or by 
 any lettered tramp. 
 
 Fourthly. Practical or Scientific. — The terms " practical " 
 and " scientific " have been so abused, in their application to 
 legal text-books, that it is impossible for me to say anything 
 on this subject except under the probability of being mis- 
 understood. According to my understanding, these two 
 words, so applied, are exact synonyms. Nothing is scientific 
 
X PREFATORY EXPLANATIONS. 
 
 which is not practical, or practical which is not scientific. 
 And the thing which is equally well expressed by either 
 word is what I have endeavored to produce in this volume, — 
 not either one of the two different things which are oftener 
 meant by those who use them. 
 
 To state the law exactly as it is, making my book neither 
 more nor less scientific than the law, — to write the best 
 practical book possible for me, — this one thing, expressed in 
 these two forms, is what I have striven after in this volume. 
 
 For example, we have various classes of law books ordina- 
 rily termed practical, while they are so but in part. They 
 comprehend all those differing ones the object whereof is 
 only to state what the courts have heretofore adjudged, in 
 distinction from what they will decide in the future. I do 
 not undervalue learning which goes thus far, and there stops. 
 But I have never written, and I do not now write, simply to 
 impart this learning. The practical question with every 
 lawyer, under whatever circumstances, is, " What will the 
 court which decides my causes, on being duly enlightened, 
 hold in the future ? " Historically, it ma}' be as interesting 
 to know what has been adjudged in the past as how the 
 battle of Waterloo resulted. But, beyond the domain of 
 history, the past is dead and buried. We are all now dealing 
 with the present and the future. The general of to-day will 
 study the Waterloo battle of yesterday as one of the means 
 of instruction for planning the battles of to-morrow. So 
 likewise the lawyer of to-day will inquire into the decisions 
 of yesterday, in so far as they may help him to shape to- 
 morrow's contests in the courts. But the thing he cares 
 for, the practical thing with him, is of to-morrow; not of 
 yesterday. 
 
 In like manner, the various forms of speculation which are 
 inaccurately termed scientific have their uses. Thus, if an 
 author takes up an axiomatic proposition of natural reason, 
 walks through the law with it, and points out that here the 
 
PEEPATORT EXPLANATIONS. xi 
 
 law fits it and there it does not, pronouncing our jurispru- 
 dence to be therefore -wrong at the latter places, the mind of 
 the reader is wholesomely diverted and stirred. He is now 
 prepared to apprehend the further and true idea, that the 
 law has adopted very many axiomatic propositions of natural 
 reason, and with them many technical ones which the courts 
 and legislative bodies invented ; that it is a practical science, 
 devised to do justice in an immense variety of actual affairs ; 
 and, therefore, that it thence becomes of the highest impor- 
 tance to the practising lawyer to learn what are the principles 
 which the law recognizes, and how they operate singly, or in 
 combination, or which ones must in particular circumstances 
 give way to what others. Still, for myself, I have striven 
 rather to avoid than to develop a science which perverts 
 the law. 
 
 Fifthly. The Reasoning. — The law which the superficial 
 observer sees, consists of unwritten rules, of statutes, and of 
 written constitutions. But the law which actually controls 
 affairs is composed of the deductions of judicial reason from 
 these, for the guidance of persons under ever-shifting facts. 
 The rules, whether written or unwritten, are, while standing 
 inert, like a human body from which the soul has fled. It is 
 juridical reason, or reasoning, — in other words, the law's 
 reasoning, — which gives life and effect to what would other- 
 wise be mere dead matter. Hence our jurisprudence is com- 
 monly spoken of as a system of legal, or technical, reasoning. 
 But the law can express its reasoning only in words, through 
 the lips or pen of man. In the same way, a man expresses 
 his own reasoning. Out of this fact has grown a jumble of 
 ideas. Some object to the embodiment, in a law book, of the 
 author's reasoning. I think all ought to object; for it is 
 liable to be confounded with the reasoning of the law, and 
 thus practically to mislead. From the present book, there- 
 fore, the same as from all my others, I have carefully ex- 
 cluded every particle of my own reasoning. Others, not 
 
Xii PREFATOET EXPLANATIONS. 
 
 distinguishing the law's reasoning from the author's own, 
 object even to it. But a book without it is never, whatever 
 the author may call it, a law book. So I endeavor to set 
 down the law's reasoning ; and if, as may sometimes happen, 
 there is found to be a reader unable to distinguish the law's 
 reasoning, when given in my words, from mine, the misap- 
 prehension is one for which I am in no degree responsible. 
 
 There are, in our profession, young men and imperfectly 
 educated older ones, who, not having discerned the distinc- 
 tion between the law's reason and natural reason, deem the 
 more helpful book to be the one which is really made value- 
 less by excluding from it all reason, and stating the mere 
 naked points. It has been so from the earliest periods down- 
 ward. Books termed legal treatises, with no law in them, — 
 some with the author's lucubrations in the places where the 
 law ought to be, and others with nothing but the bare points, 
 — have come in applauded swarm after swarm, then passed 
 away to a neglected death. And thus it will be onward from 
 generation to generation, unless this course of things is inter- 
 cepted by a more enlightened professional education. I have 
 striven to avoid this error, yet with what success it is not for 
 me to say. 
 
 Finally. Need of the Booh. — When I left practice for law 
 writing, I resolved, and made the resolution irrevocable, to 
 write no book which I should not deem to be imperatively 
 needed. Not undertaking to say what, had I been tempted, 
 I might have thought of the morality of imposing an un- 
 necessary burden on the profession, I should but too gladly 
 have returned to the more lucrative practice if the time came 
 when there was nothing to write on the principle thus laid 
 down. Of course, the decision as to any book could be 
 made only by myself, and at my own peril. As to my first 
 venture, " Marriage and Divorce," the profession has sus- 
 tained me by using the book almost exclusively these thirty- 
 five years since it originally appeared ; and the courts have 
 
PREFATORY EXPLANATIONS. XIU 
 
 made its doctrines, every one of them, as laid down in the 
 first edition, theirs, not only in substance but in form. My 
 great venture, the Criminal Law Series, was finished less 
 than two years ago when " Directions and Forms " appeared ; 
 but, for many years, there have been no books on criminal 
 law, pleading, practice, or evidence used to any wide extent 
 except mine, or those which upon their face have been 
 transmuted from what was most steeply unlike into the 
 closest imitations of them. If there is any reader not aware 
 of the facts as to this, let him look into the books, edition 
 by edition, observing the dates, and learn. Or, for a short 
 method, let him compare my recently published " Directions 
 and Forms" with the like books previously before the pro- 
 fession, then compare the prior parts of my Criminal Law 
 Series with the current books other than mine, noting the dis- 
 similitudes in the one case, and the similitudes in the other. 
 From discovering that "Directions and Forms" did not cast 
 shadows while yet it did not exist, the step will be easy to 
 the discovery that so likewise did not the other books of the 
 Series, between which and the corresponding ones previouslj' 
 in use there was originally as wide a difference as there is 
 now between "Directions and Forms" and the prior books of 
 Precedents ; the shadows coming, growing, and varying with 
 the forming, enlarging, and improving substance. 
 
 Having thus been sustained by the profession as to my 
 earlier works, I should like to be so also as to the present 
 one. But I neither expect nor ask that no other book on 
 contracts shall be bought or used. Nor do I desire that the 
 other books shall be changed to imitate mine, or otherwise 
 kneel to them, or adore. Nor yet do I crave from the pro- 
 fession so immediate an approving response, in any form, as 
 in the other two instances. Having stated the principle on 
 which the determination to write this book proceeded, I am 
 content that the Future shall take her own time for recording 
 the verdict, for or against me. 
 
XIV PBEPATOET EXPLANATIONS. 
 
 Yet I cannot close this preface without expressing my 
 admiration for the learning and labor with which some of the 
 books on this subject, now in professional use, were written. 
 The most important ones, I believe all in which any informed 
 person would expect to find valuable ideas of the author's 
 own, with the exception of those written only for students, 
 were beside me while writing. Undoubtedly I. have over- 
 looked much worthy matter in them ; but I have occasionally 
 referred to them, always where I derived any help from 
 them, unless now and then, yet seldom, a mere reference to 
 a case. These are Parsons on Contracts, a work which has 
 long stood at the very head in popularity ; the venerable 
 Chitty, a book old when I was a law student, yet ever fresh ; 
 the later Addison, Leake, Pollock ; and the smaller works of 
 Smith and Metcalf. 
 
 J. P. B. 
 
 Cambridge, Jan. 1, 1887. 
 
CONTENTS. 
 
 Chapter Section 
 
 I. Preximinaeies 1-21 
 
 BOOK I. 
 
 THE MORE GENERAL DOCTRINES WITH THEIR 
 ILLUSTRATIONS. 
 
 II. The Elements of a Conteact 22-34 
 
 III. The Consideration 35-102 
 
 § 35, 36. Introduction. 
 
 37-75. In General of the Consideration. 
 
 76-79. Contract wholly executory (Mutual Promises). 
 
 80-84. Wholly executed. 
 
 85-87. Executed in part. 
 
 88-93. Consideration executeiU 
 
 94-100. Waiver as to Consideration. 
 
 101, 102. Doctrine of Chapter restated. 
 
 IV. Contracts under Seal ........... 103-139 
 
 § 103. Introduction. 
 
 104-118. In Geribral. 
 
 119-127. The Consideration. 
 
 128-138. High Nature and Consequences. 
 
 139. Doctrine of Chapter restated. 
 
 V. Contracts of Record 140-150 
 
 VI. Oral Contracts 151-161 
 
 VII. Simple Contracts in Writing 162-180 
 
XVI CONTENTS. 
 
 Chapter Sectiok 
 
 VIII. CoNTKACTS Created bt Law 181-238 
 
 § 181. Introduction. 
 
 182-203. General Doctrine. 
 
 204-237. Illustrative Instances. 
 
 238. Doctrine of Chapter restated. 
 
 IX. Contracts Implied from Express Ones . . . 239-256 
 
 X. Contracts Implied as of Fact 257-263 
 
 XI. Estoppel as a Species of Contract Created by 
 
 Law 264-311 
 
 § 264. Introduction. 
 265-269. In General. 
 270-273. By Judicial Record. 
 274-279. By Deed. 
 280-310. In Pais. 
 
 311. Doctrine of Chapter restated. 
 
 XII. The Mutual Assent 312-334 
 
 § 312-314. Introduction. 
 
 315-320. By Mutual Written or Spoken Words. 
 
 321-329. By Offer accepted in Terms. 
 
 330-333. By Offer acted upon. 
 
 334. Doctrine of Chapter restated. 
 
 Xni. Formalities at the Making of Written Con- 
 tracts 335-364 
 
 § 335-339. Introduction. 
 340,341. The Writing. 
 342-348. Signing. 
 349-361. Delivery. 
 362, 363. Incidental Questions. 
 
 364. Doctrine of Chapter restated. 
 
 XrV. The Interpretation op the Contract as to its 
 
 Meaning 365-428 
 
 § 365-368. Introduction. 
 369-378. What in Connection with Written Words. 
 379-418. Leading Kules of Interpretation. 
 419-423. Precedence of the Rules. 
 424-427. Further Explanations. 
 
 428. Doctrine of Chapter restated. 
 
 XV. The Interpretation of the Contract as to its 
 
 Effect 429-437 
 
CONTENTS. 
 
 XVll 
 
 Chapter Section 
 
 XVI. Law, Cdstom, and Usage as Elements in the 
 
 CONTEACT 438-460 
 
 § 438. Introduction. 
 
 439-443. Law an Element. 
 
 444-448. Nature of Custom and Usage. 
 
 449-459. Their Effect in a Contract. 
 
 460. Doctrine of Chapter restated. 
 
 XVII. Law and Fact as to the Paeties' Knowledge 
 
 OR Ignorance thereof 461-466 
 
 467-549 
 
 XVIII. Contracts Illegal or op Evil Tendency 
 
 § 467, 468. Introduction. 
 469-490. General Doctrine. 
 491-497. In Obstruction of Judicial Justice. 
 498-504. In Obstruction of Governmental Order. 
 505-512. Violative of Good Morals. ' 
 513-520. In Restraint of Trade. 
 521-528. Partaking of Unlawful Conspiracy. 
 529-535. Gaming Contracts. 
 536-546. Violative of Lord's Day. 
 547, 548. Contrary to Statutes regulating Business. 
 549. Doctrine of Chapter restated. 
 
 XIX. The Constitutional Protection op the Obliga- 
 tion OP Contracts 560-576 
 
 § 550. Introduction. 
 
 551-554. General Doctrine. 
 
 555-564. Parties and Contract. 
 
 565, 566. Laws under which Contract made. 
 
 567-575. Laws impairing or not. 
 
 576. Doctrine of Chapter restated. 
 
 XX. The Impossible in Law and Fact 
 
 577-609 
 
 § 577, 578. Introduction. 
 579-583. Express Stipulation against the Impossible. 
 584-590. What deemed such or Equivalent. ^ 
 
 591-608. Further of Stipulation and how in Absence thereof 
 609. Doctrine of Chapter restated. 
 
 XXI. The Void and Voidable in Contracts 
 
 § 610-612. Introduction. 
 613-616. Void. 
 617-621. Voidable. 
 
 622. Doctrine of Chapter restated. 
 6 
 
 610-622 
 
xviil CONTENTS. 
 
 Chapter Section 
 
 xxii. conteacts distinguished as executory and 
 
 Executed 623-636 
 
 XXIII. Fraud in the Contract 637-692 
 
 § 637. Introduction. 
 638-640. Relations of Subject. 
 641-643. In General of Fraud. 
 644-649. As to Signing and Delivery. 
 650-670. In Substance of Contract. 
 671-691. Nature and Effect of Fraudulent Contract. 
 692. Doctrine of Chapter restated. 
 
 XXIV. Mistake in the Contract 693-714 
 
 § 693, 694. Introduction. 
 
 695-706. How at Law. 
 
 707-713. Reforming and Rescinding in Equity. 
 
 714. Doctrine of Chapter restated. 
 
 XXV. Contracts made under Duress 715-730 
 
 XXVI. Contracts under Constraining Combinations and 
 
 other Constraints than the foregoing . 731-744 
 
 XXVII. The Unauthorized Altering of the Written 
 
 Contract 745-761 
 
 XXVIII. Altering the Contract by Mutual Consent 762-776 
 
 XXIX. Election and Waiver 777-808 
 
 § 777, 778. Introduction. 
 
 779-788. Election. 
 
 789-807. Waiver. 
 
 808. Doctrine of Chapter restated. 
 
 XXX. Rescission of the Contract 809-842 
 
 § 809-811. Introduction. 
 
 812-822. By Mutual Consent. 
 
 823-836. By one Party as of Right. 
 
 837-841. Wrongfully by a Party. 
 
 842. Doctrine of Chapter restated. 
 
 XXXI. Ratification or Affirmance op the Contract 
 
 AND Release therefrom 843-879 
 
 § 843. Introduction. 
 844-849. Ratification or Affirmance. 
 850-857. Release by Oral or Written Words. 
 858-866. Release by Death. 
 867-878. Otherwise by Operation of Law. 
 879. Doctrine of Chapter restated. 
 
CONTENTS. 
 
 XIX 
 
 BOOK 11. 
 
 THE PARTIES AND OTHER PARTAKERS AS AGENTS OR 
 INTERESTED IN THE CONTRACT. 
 
 Chapter 
 XXXII. 
 
 XXXIII. 
 
 In Geneeai of the Parties 
 
 Section 
 880-891 
 
 Infants 892-946 
 
 § 892. Introduction. 
 
 893-905. Capacity in General. 
 
 906-916. Necessaries and other Created Contracts. 
 
 917-92,3. Valid Actual Contracts. 
 
 924-928. Voidable. 
 
 929-935. Void. 
 
 936-945. AfBrmance and Disaffirmance. 
 
 946. Doctrine of Chapter restated. 
 
 XXXIV. Married Women 947-954 
 
 XXXV. Insane Persons 955-978 
 
 XXXVI. Drunken Persons 979-987 
 
 XXXVII. The Government and its Officers 
 XXXVIII. Foreign Governments and Aliens . 
 
 XXXIX. Corporations 
 
 § 1003, 1004. Introduction. 
 1005-1013. Power of Contract. 
 1014-1023. By what Methods. 
 
 1024. Doctrine of Chapter restated. 
 
 XL. Contracts made through Agents . 
 
 § 1025. Introduction. 
 
 1026-1033. General Doctrine. 
 
 1034-1041. Who may be Agent. 
 
 1042-1049. How Agency created. 
 
 1050-1056. How terminated. 
 
 1057-1068. Express and Implied Powers of Agent. 
 
 1069-1090. Manner and Forms of the Contract. 
 
 1091-1110. Unauthorized, and Ratification. 
 
 1111-1115. Frauds by and to Agents. 
 
 1116-1 121. Rights and Liabilities of Agents. 
 
 1122. Doctrine of Chapter restated. 
 
 . 988-996 
 
 . 997-1002 
 
 1003-1024 
 
 1025-1122 
 
XX CONTENTS. 
 
 Chapter Section 
 
 XLI. Special Sorts of Agents 1123-1142 
 
 XLII. Persons in Paktnership 1143-1153 
 
 XLIII. Other Unincorporate Associations . . 1154-1164 
 
 XLIV. Blanks in the Written Contract and Filling 
 
 THEM 1165-1176 
 
 § 1165, 1166. Introduction. 
 1167-1172. Specialties. 
 1173-1175. Simple Contracts. 
 
 1176. Doctrine of Chapter restated. 
 
 XLV. Assignors and Assignees 1177-1199 
 
 §1177,1178. Introduction. 
 1179-1183. Non-negotiable Choses in Action. 
 1184-1189. Negotiable Choses in Action. 
 1190-1192. Covenants running with Land. 
 1193-1195. The Doctrine in Equity. 
 1196-1198. By Operation of Law. 
 
 1199. Doctrine of Chapter restated. 
 
 XLVI. Creditors 1200-1213 
 
 XLVII. Other Thuid Persons 1214-1227 
 
 BOOK III. 
 
 CONTRACTS REQUIRED TO BE IN WRITING. 
 XLVIII. The Statote of Frauds 1228-1285 
 
 § 1228. Introduction. 
 
 1229-1233. The Statute. 
 
 1234-1249. Rules Common to the Several Clauses. 
 
 1250-1255. Promises by Executors and Administrators. 
 
 1256-1266. Promise to answer for Another. 
 
 1267-1271. On Consideration of Marriage. 
 
 1272-1284. Not to be performed within a Year. 
 
 1285. Doctrine of Chapter restated. 
 
 XLIX. Bargainings Relating to Real Estate . 1286-1307 
 
 L. Bargainings in Personal Property . . 1308-1325 
 
 LI. Other Contracts as to Writing . . . 1326-1335 
 
CONTENTS. xxi 
 
 BOOK IV. 
 
 TIME AND PLACE. 
 
 Chapteb Section 
 
 LII. Time as an Element in the Contkact . . 1336-1349 
 
 § 1336. Introduction. 
 
 1337-1343. How compute. 
 
 1344-1348. Essence of Contract or not. 
 
 1349. Doctrine of Chapter restated. 
 
 LIII. The Statute of Limitations ...... 1350-1367 
 
 LIV. The Conteact as Affected by the Conflicting 
 
 Laws op Different Jurisdictions . . . 1368-1412 
 
 § 1368. Introduction. 
 
 1369-1371. In General. 
 
 1372-1389. Inception of Contract. 
 
 1390-1398. Interpretation and Effect. 
 
 1399-1402. Discharge. 
 
 1403-1411. Procedure for Enforcement. 
 
 1412. Doctrine of Chapter restated. 
 
 BOOK V. 
 
 THE BREACH AND PERFORMANCE OF THE 
 CONTRACT. 
 
 LV. What is a Breach authorizing a Suit at Law 1413-1440 
 
 § 1413. Introduction. 
 
 1414-1418. In General. 
 
 1419-1424. As to Plaintiff. 
 
 1425-1432. As to Defendant. 
 
 1433-1439. Further Questions. 
 
 1440. Doctrine of Chapter restated. 
 
XXU CONTENTS. 
 
 Chapter Section 
 LVI. The Conteact which the Law Creates aftek a 
 Bkeach, Imperfect Performance, or Abandon- 
 ment 1441-1447 
 
 LVII. The Provisions for Liquidated Damages and for 
 
 A Penalty 1448-1461 
 
 § 1448. Introduction. 
 1449-1454. Liquidated Damages. 
 1455-1460. Penalty. 
 
 1461. Doctrine of Chapter restated. 
 
 The Doctrine of this Volume restated .... 1462-1471 
 
 Page 
 Index to the Cases cited 603 
 
 Index of Subjects 693 
 
LAW OF CONTRACTS. 
 
LAW OF CONTRACTS. 
 
 CHAPTER I. 
 
 PEELIMINAKIES. 
 
 § 1. Orderly Development. — This work, being addressed as 
 well to readers wholly unacquainted with the law as to advanced 
 students and lawyers, should, for the sake of the former class, 
 begin at the beginning. And a considerable part of the latter 
 class will be equally benefited by this method ; for, as the law 
 is often studied among us, the beginning is altogether neg- 
 lected.- Every science has its first, second, and third things, 
 the same as its one hundredth, two hundredth, and three 
 hundredth. And the learner who commences with the three 
 hundredth, and travels backward to the first, takes each step 
 at disadvantage. He comprehends nothing well, the atmos- 
 phere of his science seems a haze, the relations of things are 
 imperfectly discerned; his mind, instead of growing, dwarfs ; 
 and, though at last he has gained something, it is too little 
 for the sacrifice made. But he who, with mental faculties 
 adapted to his science, takes up, examines, and lays away the 
 things in their order, discerns all clearly, and makes rapid 
 growth both in knowledge and power. Let us, therefore, to 
 such extent as is practicable, here begin at the beginning. 
 But — 
 
 § 2. Elsewhere. — The author in his other writings has 
 presented much of what thus belongs at the beginning. Rep- 
 etitions are as far as possible to be avoided. Yet this matter 
 
 1 1 
 
§ 7 PRELIMINARIES. 
 
 is in importance so transcendent that the reader is requested 
 to excuse some repetition of it ; while, on the other hand, this 
 consideration, as well as the great demand made on these 
 pages by the main subject of the work, will induce brevity. 
 Again, — 
 
 § 3. Necessary Limitation. — In the nature of any legal 
 subject, where doctrine limits and extends doctrine, there is 
 no possible division, no setting down of the first things first, 
 so orderly as to enable the learner to understand everything 
 quite perfectly as he goes along. For, whatever be the ar- 
 rangement, the fuller expositions of what must stand later 
 on will cast backward their light upon what went before. 
 
 § 4. Whence the Law. — Contrary to the idea of many un- 
 thinking people, the law is not a mere emanation from the 
 legislature, mingled with judicial breath. Like the atmos- 
 phere and the other surroundings of man, it came from God ; 
 and the capacity to comprehend it is one of the attributes of 
 the human mind. It is this capacity which sees the relations 
 of things, and distinguishes right and wrong. 
 
 § 5. Law a Necessity. — The existence of man without law 
 is impossible.! Hence, — 
 
 § 6. Growth of Law. — As there always was law, and as 
 the law which God gave to man filled the whole atmosphere of 
 his existence, our human laws are, and should always be con- 
 templated as being, limitations, modifications, and definings 
 of the divine ; or, to be exact, the first human law was a 
 modification of the divine, the second was a modification of 
 the modified mass, and thus the course of legal things has 
 been running onward to the present time. This is impor- 
 tant to be borne in mind. A statute, for example, is not 
 construed as a mere original provision, but as an element 
 added to the prior mass of laws ; modifying yet not neces- 
 sarily repealing them, and limiting and being extended by 
 them .2 
 
 § 7. Whence. — The familiar method of making or modi- 
 fying laws is by legislative enactment. Yet, in fact, not all 
 
 1 1 Bishop Crim. Law, § 5-7. 
 
 ^ Bishop Written Laws, § 82, 86 et seq. 
 
 2 
 
PRELIMINARIES. § 11 
 
 our human laws or their modifications are of this sort. In- 
 deed, the laws which were never written in statutes num- 
 ber many times more than those which are thus written. 
 They proceed from custom or usage, from the enlightenment 
 of the human understanding and conscience, and from the 
 decisions of the courts ; and these laws, termed unwritten, 
 even control the interpretation and effect of the statutory 
 laws.^ 
 
 § 8. Unwritten Law with ua. — Our unwritten or common 
 law was brought from England by our forefathers ; it is, with 
 exceptions and qualifications not necessary to be here speci- 
 fied, the law of England, common, equitable, in some degree 
 ecclesiastical, and statutory, as it stood at the time when the 
 several colonies which afterward became our original States 
 were respectively settled. 
 
 § 9. How the Law regarded now. — Practically, at the pres- 
 ent time, we are to look upon the law as a mass of original 
 tight furnished by God for human use, its several parts vari- 
 ously curtailed, extended, made exact, or otherwise defined 
 by man, thi'ough lines of doctrine drawn as the exigencies 
 of his situation required, some proceeding from usage, some 
 from judicial decision, some from statutes, and some from our 
 written constitutions. 
 
 § 10. Judicial Decisions. — Not all the law is administered 
 by the courts ; but most of it is, including that to which this 
 work is devoted. The courts, to administer any law, must 
 first expound it;^ hence, though they do not make law, 
 they make expositions which in a certain sense have the 
 effect of law. While, as all are aware, they declare the 
 meaning of statutes and written constitutions, they do equally 
 the same of the customs and usages which are proved before 
 them, or of which they take judicial cognizance, and of the 
 rules involved in their own and their predecessors' prior 
 decisions. And, — 
 
 §11. stare Decisis. — Commonly, when an interpretation 
 of any sort of law has been made by the higher courts, espe- 
 cially one establishing a rule of property which the people 
 1 Bishop Written Laws, § 131-137. 2 lb. § 116. 
 
 s 
 
§ 14 PEELIMINAEIES. 
 
 have acted upon, it will be adhered to in subsequent cases.^ 
 But sometimes, even in a case of this sort, the court will 
 refuse to follow it afterward, if obviously it proceeded from 
 mistake, and justice or the harmony of the law requires ; 
 while in other classes of cases the reversal will be more 
 readily made, though oftener what has been decided once or 
 twice will ever after be accepted as the law. Moreover, — 
 
 § 12. The Decision and its Reasons, compared. — The rea- 
 sons which a court gives for its decision are not, like the de- 
 cision, binding on a subsequent tribunal. They are looked 
 into, and are often but not necessarily followed. While the 
 result is right, they may be wrong.^ A fortiori, the mere 
 dictum of a judge, in a matter not within the record, is not 
 an authority in a subsequent case.^ 
 
 § 13. With us, — most of the cases to which in practice a 
 tribunal is referred, or which are cited in a legal treatise, are 
 not of authority in the court with which a particular practi- 
 tioner or reader is concerned. For in no one of our States 
 are English adjudications which were pronounced since the 
 American Revolution, or those of any other of our States, 
 except a parent State as to what transpired before the State 
 was divided, to be deemed authority ; whUe yet such deci- 
 sions are commonly and properly cited, and are regarded with 
 respect. The discerning reader, therefore, will see that with 
 him much of what in this work is set down as the law rests, 
 in fact, simply on its reasons and the respect due to the opin- 
 ions of learned men ; but it is open to question in the tri- 
 bunals of his own State, though it may not be in those of 
 England or of another State of the Union. 
 
 § 14. Reason as Law — The Instances. — When a court de- 
 cides that a defendant must pay the plaintiff the five dollars 
 promised for a hat, it, in strictness, adjudges nothing con- 
 cerning the purchase of a suit of clothes, or of a hat for any 
 
 1 Jnne V. Purcell, 36 Ohio State, 396; » Bole v. Horton, Vaugh. 360, 382; 
 Rex V. Pedley, Cald. 218, 227; Barden Cutler v. Bonney, 30 Mich. 259, 262; 
 V. Southerland, 70 N. C. 528, 530. Rohrbach v. Germania Fire Ins. Co. 62 
 
 2 Bishop First Book, § 169 ; Palmer N. Y. 47, 58 ; Gordon v. Harper, 7 T. R. 
 V. Yarrington, 1 Ohio State, 253, 262. 9, 11 ; Rex v. Jarvis, 1 Bur. 148, 153. 
 
 4 
 
PRELIMINARIES. § 15 
 
 other price. Yet, in reason, if the law compels one to pay 
 according to agreement for his hat, it should make him pay, 
 in like manner, for his other clothing. Moreover, it should, 
 for the same reason, enforce against him the payment he 
 agrees to make for his flour, for the help in his house, and for 
 the house itself. But, aside from reason, there is no ground 
 upon which one decision of a court can be authority for an- 
 other ; for, in the infinite variety of human things, no two 
 cases are in all their facts precisely alike. Hence it is estab- 
 lished doctrine that the law is a system of reason, or reason- 
 ing, and that the several decisions are merely instances within 
 a larger rule. There have always been persons, accredited as 
 lawyers, who deny this, but no great master of the law ever 
 denied it, and our books are full of expressions affirming it.i 
 So that, though a court may find no case from the facts of 
 which to decide a particular question before it, and in this 
 sense the question is new, if it finds a principle, within which 
 the case falls, it will proceed thereon with the same confi- 
 dence as though there were thousands of decisions.^ The 
 visible signs of the law, therefore, are the adjudged cases, 
 reported in our authoritative books of reports ; but the law 
 itself consists of principles invisible to the outward eyes, yet 
 by reason brought to the cognizance of the understanding. 
 This is so even in the domain of statutory law ; for what 
 the courts enforce, is not the collection of words in which 
 the legislature has written its will, but its interpreted will 
 deduced from the words, and applied to the particular facts 
 of each successive case by reason. Now, — 
 
 § 15. Nature of Reason. — The reason, whereof it is thus 
 seen the law consists, is not, to borrow Lord Coke's words, 
 " every man's natural reason," but it is " an artificial perfec- 
 
 ' For example, consult WUliamson Commercial Bank v. Reliance, &c. Soc. 
 
 B.Beckham, 8 Leigh, 20, 24; Rex u. 27 Ch. D. 187, 195. "Precedents are 
 
 Bembridge, 3 Doug. 327, 332 ; People v. useful to decide questions ; but, in such 
 
 Fish, 4 Parker C. C. 206, 211 ; Jones v. cases as depend upon fundamental prin- 
 
 Kandall, LofEt, 383, 385. ciples from which demonstrations may 
 
 2 Collins V. Blantem, 2 Wils. 347, be drawn, millions of precedents are to 
 
 352; Carmthers v. Hollis, 8 A. & E. no purpose." Vaughan, C. J. 8 Howell 
 
 113, 117; Keeble v. Hickeringill, 11 St. T. K. 78; Vaugh. 419. 
 East, 574, 575, in notes; West London 
 
§ 17 PRELIMINABIES. 
 
 tion of reason, gotten by long study, observation, and expe- 
 rience." ^ It is the same reason which the Maker gave to 
 man for his guide in all earthly affairs, yet it cannot be made 
 practically available in the law by one uninstructed in what 
 is already established therein. For the law is a harmonious 
 system,^ consisting of technical rules drawn upon a ground- 
 work of natural right ; and it is vain for one to reason upon 
 it, until he has acquired, at least, some competent knowledge 
 of the technical rules with which the question he is consid- 
 ering comes in contact, and from which it receives its solu- 
 tion. In other words, the reason of which the law consists is 
 not the reason of the mere moralist, or of the man of affairs, 
 or of the legislator, but it is the reason of the law. In this 
 sense, yet in no other, the law, which the student of our laws 
 is to acquire, is a system of legal reason. And he becomes 
 competent to practise it only when he has acquired the power 
 to frame an argument, not like the metaphysician, but like 
 the personified Law, after the law's methods, laying down 
 the law's propositions, not his own, and drawing, not his 
 individual conclusions, but the law's. 
 
 § 16. What for this Work. — It is proposed in this work to 
 state the leading principles of the law of its subject after the 
 manner of the law's reasons. Unless the author fails in his 
 purpose, his own reasoning will not here appear ; it will be 
 the law's. It will be necessary, therefore, to present, not 
 merely the legal doctrines, but also the several manners of 
 their application. This will be done by mingling with the 
 doctrines sufficient illustrative instances. 
 
 § 17. How read. — This work is so condensed and its an- 
 nunciations of legal doctrine are so carefully constructed, 
 every word having its use, and there being little repetition, 
 that the reader is required to note the exact terms of every 
 sentence, or he will fail of the fuU benefit meant. This cau- 
 tion is of the utmost importance in view of the fact that the 
 
 * Co. Lit. 97 6 ; Bishop First Book, monl&g hands of imperfect man hare 
 
 § ^2. ^ left in it some imperfections, and with 
 
 ^ Such is the theory of it, and it is these the student should acquaint him- 
 
 practically so in the main ; but the self the same as with the rest. 
 
 6 
 
PBELIMINABIES. § 19 
 
 present generation is given to reading too rapid to be service- 
 able in the pursuit of science. What Lord Coke said of his 
 Reports is even more important in respect of the present 
 work ; namely, " I desire the reader, that he would not read, 
 and as it were swallow, too much at once ; for greedy appe- 
 tites are not of the best digestion. The whole is to be 
 attained to by parts ; and nature, which is the best guide, 
 maketh no leap." And to enforce this view he brings for- 
 ward the authority of Seneca; thus," Quo plus recipit animus, 
 hoc se magis laxat; the mind, the more it suddenly receiveth, 
 the more it loseth, and freeth itself. A cursory and tumult- 
 uary reading doth ever make a confused memory, a troubled 
 utterance, and an incertain judgment." ^ 
 
 § 18. Collateral Reading. — The construction of this work 
 is such that it may be serviceably read through, in its order, 
 without anj' collateral helps. But the reader will not thus 
 derive from it the full benefit it is capable of conferring. 
 Since many questions depend more or less upon statutes 
 which are not quite identical in all our States, he should have 
 before him the statutes of his own State, and carefully note 
 (upon the margin of the book, if he owns the copy which he 
 is reading, and) in his understanding and memory, every- 
 thing in the statutes which modifies in any degree the state- 
 ments in the book. In like manner, the decisions of his own 
 court may not in every particular harmonize with the gen- 
 eral doctrine, therefore he should have them before him, and 
 note the differences. Moreover, — 
 
 § 19. Cases cited. — To an extent to which the reader can 
 best judge for himself, he should read, in connection with the 
 text, cases cited in the notes. In a few instances, the case 
 first cited will be found specially pertinent, but not so gen- 
 erally. He will commonly prefer those of his own State, and 
 will make selections from other States and from England 
 according to his own particular bias. The objects to be ac- 
 complished by this collateral reading of cases are numerous. 
 One is to extend his views of the doctrine. Another is to 
 teach him practically how legal doctrine is derived from the 
 1 6 Co. Tras. ed. Pref. 18. 
 
 7 
 
§ 21 PRELIMINARIES. 
 
 adjudged cases, — a matter of the utmost importance. A 
 large part of every lawyer's work consists of informing him- 
 self and the courts of the law which governs a particular 
 state of facts, by consulting what has already been decided. 
 And one of the very great obstacles to professional success, 
 which young men encounter without knowing it, is that they 
 are unable to deduce the doctrines of the law from the de- 
 cisions, and apply them to facts differing from those on which 
 the decisions were rendered. The doctrine, it should be 
 remembered, dwells in the law ; often it is announced in 
 terms by the judge delivering an opinion, but not always, 
 and sometimes a wrong doctrine is laid down by him ; often 
 it is derivable from a single case, yet in other instances it can 
 be learned only by comparing case with case, and accumu- 
 lating numerous cases which, no one of itself, no half dozen 
 of themselves, but all in combination, sustain one brief prop- 
 osition, never in terms announced by any judge; often — 
 but the forms and methods are numberless. The author is 
 tempted to extend this matter here to great length, with ex- 
 planations and illustrations ; but, on reflection, he feels com- 
 pelled to reserve his space for the direct subject of the work. 
 Contracts. 
 
 § 20. other Books on Contracts — may, if the reader 
 chooses, be perused in connection with this one. For occa- 
 sional consultation, if no more, they will be useful. 
 
 § 21. Distinguishing Doctrine from Illustration. — One who 
 reads this or any other book of the law should carefully 
 and constantly distinguish doctrine from illustration, and lay 
 the results away in his memory accordingly. The neglect 
 to do this is not a small factor among the causes which pro- 
 duce so many incompetent lawyers. This general idea is 
 always acted upon in successful practice. The master of his 
 profession, to whom a question of law is submitted, first con- 
 siders the principles of law involved in it, then searches the 
 reports for illustrations. 
 8 
 
CHAP, II.] 
 
 ELEMENTS OP CONTRACT. 
 
 §22 
 
 BOOK I. 
 
 THE MORE GENERAL DOCTRINES WITH THEIR 
 ILLUSTRATIONS. 
 
 CHAPTER II. 
 
 THE ELEMENTS OF A CONTKACT. 
 
 § 22. Defined. — A contract is a promise from one or more 
 persons to another or others, either made in fact or created 
 by the law, to do or refrain from some lawful thing; being 
 also under the seal of the promisor, oi being reduced to a 
 judicial record, or being accompanied by a valid considera- 
 tion, or being executed, and not being in a form forbidden or 
 declared inadequate by law.^ More in detail, — 
 
 1 Some of the definitions in our other 
 books are — 
 
 BlacJcstone, — " An agreement, upon 
 sufficient consideration, to do or not to 
 do a particular thing." 2 Bl. Com. 442. 
 
 Kent. — The same as Blackstone, 
 both limiting the definition to executory 
 contracts. Kent deems this definition 
 "distinguished for neatness and pre- 
 cision." It is found also in some other 
 books. 2 Kent Com. 449, note. 
 
 Marshall, C.J. — "A contract is an 
 agreement in which a party undertakes 
 to do or not to do a particular thing." 
 Stnrges v. Crowninshield, 4 Wheat 122, 
 197. 
 
 Freedman, J. — " The union of two 
 or more minds in a thing done or to be 
 done." Dietz o. Farish, 53 How. Pr. 
 217,221. 
 
 Parsons. — "An agreement between 
 
 two or more parties for the doing, or 
 the not doing, of some particular thing." 
 1 Pars. Con. 6. 
 
 Chitty. — "A contract or agreement 
 not under seal may be defined to be an 
 engagement entered into between two 
 or more persons, whereby, in considera- 
 tion of something done or to be done by 
 the party or parties on one side, the 
 party or parties on the other promise to 
 do or omit to do some act." 1 Chit. 
 Con. 11th Am. ed. 11. 
 
 Savigny. — A correspondent calls my 
 attention to Savigny's much admired 
 definition ; namely, " A contract is the 
 agreement of several persons in a con- 
 current declaration of intention, whereby 
 their legal relations are determined." 
 Syst. Mod. Roman Law, § 140. The 
 translation given in Pollock Con. 2, is 
 sh'ghtly different, " When two or more 
 9 
 
§ 27 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 § 23. Executed. — Where a promise without consideration 
 has been executed, the courts will not disturb what has been 
 done under it. But, — 
 
 §24. Consideration. — Except in contracts by specialty or 
 by record, the performance of the promise will not be en- 
 forced unless there is for it an adequate consideration. 
 Even, it is believed, the law will not create or imply a con- 
 tract without a consideration. 
 
 § 25. Kinds of Contract. — A contract may be — 
 
 Specialty. — A specialty; that is, an instrument under 
 seal.i Or, — 
 
 Record. — It may be by matter of record.^ Or, — 
 
 Parol. — It may be a parol contract.^ 
 
 § 26. How Parol Contracts divided. — Parol contracts are 
 divided * into — 
 
 Written. — Written contracts not under seal,^ and 
 
 Oral. — Contracts by mere spoken words.^ But — 
 
 § 27. Explanation as to Parol. — The term " parol " properly 
 means by word of mouth ; ' and it is employed by legal 
 writers to distinguish what is spoken from what is written, 
 whether sealed or not. Thus, it is said that parol evidence 
 is inadmissible to vary a contemporaneous writing.* For- 
 merly there was no distinction, in legal effect, between a 
 written contract not under seal and an oral one ; and the 
 term " parol," as applied to either, was not misleading. Now 
 there are various statutes requiring what might then have 
 been done by word of mouth to be in writing ; therefore, at 
 
 persons concur in expressing a common literary taste, there is, therefore, no occa- 
 
 intention, so that rights or duties of sion to inquire. 
 
 those persons are thereby determined, > Post, § 103 et seq. ; Chit. Con. 11th 
 
 this is an agreement." The words of Am. ed. 4. 
 
 the original are, Vertrag ist die Vereini- ^ Post, § 140 et seq. ; Salisbury v. 
 
 gung Mehrerer zu einer ubereinsttmmenden Philips, 1 Salk. 43. 
 
 Willenserlclarung, wodurch ihre Rechtsver- " Chit. Con. 11th Am. ed. 5, 6 ; Bann 
 
 hiUtnisse bestimmt werden. v. Hughes, 7 T. K. 350, 351, note. 
 
 For other definitions, see Pelham v. * Ballard v. Walker, 3 Johns. Cas. 
 
 The State, 30 Texas, 422, 426 ; John- 60, 65. 
 
 son V. Martin, 54 Ala. 271. 6 Post, § 162 et seq. 
 
 If my definition is in more words « Post, § 151 et seq. See Met. Con. 
 
 than the others, it is more complete and 3, 4. 
 
 exact in meaning, hence more service- ^ Toml. Law Diet. Parol, 
 
 bale. How it compares in neatness and ^ i Greenl, Et. § 275. 
 10 
 
GHAP. Hi] ELEMENTS OF CONTRACT. § 29 
 
 this day, if an author would avoid being misunderstood, he 
 should generally designate what used to be called a parol 
 contract by the word " oral " or " written," as the fact in the 
 particular instance may be. Again, — 
 
 § 28. Implied. — Sometimes a contract is implied where 
 there is no direct proof of any, or, in fact, none has been 
 made. The term "implied "is vague, and contracts under 
 this name differ greatly. Of implied, — 
 
 Created by Law. — There are contracts, commonly called 
 implied, which, to speak more accurately, are created by the 
 law to establish justice between the parties. They do not re- 
 quire mutual consent, but may even bind a party against his 
 will.i Or, — 
 
 Implied as of Fact. — In Other circumstances, the presump- 
 tion, in the absence of rebutting proof, is that the parties 
 really consented ; and it is a good defence for one to show 
 that, in fact, he did not consent. This contra,ct, also, is des- 
 ignated as implied. Or, — 
 
 impUed from Express. — A contract may be implied by the 
 law out of the terms of an express one, viewed in connection 
 with the circumstances and the subject. 
 
 § 29. Parties. — As one cannot sue himself,^ or, conse- 
 quently, enter mto any obligation enforceable by law with 
 himself,^ there must be two or more parties to every 
 contract. And, unless it is a contract which the law has 
 created, — 
 
 Of Sound Mind. — A party, to be bound, must be of suf- 
 ficiently sound mind to give the needful assent. Also, — 
 
 Of Adequate Age. — He must be of such age as the law 
 requires. And — ^ 
 
 No Legal Disability. — He must not be under any such legal 
 disability as avoids the contract. A familiar but not the 
 only illustration of this, is a married woman, where the 
 common-law rules prevail.* 
 
 1 Post, § 181 et seq. Whitehead v. Hellen, 76 N. C. 99; Col- 
 
 2 MofEat V. Van Millingen, 2 B. & P. Uns v. Tilton, 58 Ind. 374. 
 
 124, note. * 1 Bishop Mar. Women, § 842. 
 
 8 Taussig V. Hart, 58 N. Y. 425; 
 
 11 
 
§ 34 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 § 30. Minds in Accord. — Except where the contract is 
 created or implied by law, the minds of the parties must 
 come into complete accord, the one consenting to exactly 
 the same thing to which the other does.^ 
 
 § 31. Subject. — The contract must be for something 
 which the law permits to be contracted for, — not contrary 
 to the law or its policy .^ Finally, — 
 
 § 32. Law's Forms. — In some circumstances, the law has 
 made a particular form necessary ; as, by specialty, or simply 
 by a writing which need not be under seal, or by written 
 words prescribed by a statute. A mere oral undertaking, or 
 a written one not comforming to law, will then, of course, be 
 inadequate. 
 
 § 33. Course of the Discussion. — These elements of con- 
 tract, and some others not necessary here to be mentioned, 
 will occupy us through a series of chapters. We shall then 
 proceed with such further unfoldings as will bring to view, 
 and so far illustrate as to render comprehensible, most of the 
 doctrines of the law of contracts. 
 
 § 34. The Doctrine of this Chapter restated. 
 
 * 
 To sum all up, a contract is a promissory obligation in such 
 
 form, and founded on such reasons, as the justice or policy 
 of the law has prescribed to render it binding. In general, 
 this obligation is not forced upon men, but is made to depend 
 on their free consent ; for, by this rule, the justice and policy 
 of the law are in most instances best promoted. And none 
 can consent without legal and actual capacity. But if one 
 resists the justice of the law, or is destitute of capacity to 
 consent, and the general or individual weal requires that 
 there should be a contract, the law will imply it as of fact, 
 or create it by indisputable presumption. 
 
 1 Post, § 312 et seq. ; Peirce v. Bur- 434, 2 Jur. 595 ; Hawes v. Stebbins, 
 
 roughs, 58 N. H. 302 ; Smith v. Gowdy, 49 Cal. 369 ; Dunkin v. Hodge, 46 
 
 8 Allen, 566. Ala. 523 ; Cope v. Rowlands, 2 M. & W. 
 
 ^ McKinaell v. Kobinson, 3 M. & W. 149. 
 
 12 
 
CHAP. III.] THE CONSIDERATION. § 37 
 
 CHAPTER III. 
 
 THE CONSIDEEATION. 
 
 § 35, 36. Introduction. 
 
 37-75. In General of the Consideration. 
 
 76-79. Contract wholly executory (Mutual Promises). 
 
 80-84. Wholly executed. 
 
 85-87. Executed in part. 
 
 88-93. Consideration executed. 
 
 94-100. Waiver as to Consideration. 
 
 101, 102. Doctrine of the Chapter restated. 
 
 §35. Here — Elsewhere. — The consideration is a prime 
 element in every contract ; hence the more convenient form 
 for these elucidations will be to present, in this chapter, an 
 outline of the doctrine as it threads the entire law of contract, 
 leaving various special illustrations of it for the particular 
 topics. 
 
 § 36. How Chapter divided. — We shall consider, I. In 
 General of the Consideration ; II. Where the Contract is 
 wholly executory, as depending on Mutual Promises ; III. 
 Where it is wholly executed ; IV. Where it is executed in 
 part ; V. Where the Consideration is executed ; VI. The 
 Waiver of Imperfections in the Consideration. 
 
 I. In Creneral of the Consideration. 
 
 § 37. Compared with Motive. — The motives to promises 
 are numerous. One motive, for example, is to confer a 
 benefit on the promisee ; springing from particular affec- 
 tion, or from general benevolence. Another is to obtain 
 the quid pro quo; that is, the consideration, in exchange 
 for which the promise is given. So that, though the con- 
 
 13 
 
39 
 
 IN GENERAL WITH ILLUSTRATIONS. 
 
 [book I. 
 
 sideration may be deemed a motive, it is one only among 
 many motives.^ 
 
 § 38. Consideration defined. — A consideration is something 
 esteemed in law as of value, in exchange for which the prom- 
 ise in a contract is made.^ 
 
 § 39. Whence and Why. — The doctrine of the considera- 
 tion is said to have been introduced into the common law 
 from the civil. But its civil-law and common-law forms 
 differ considerably, whether the comparison is made with the 
 Roman law, or with that of modern Europe.'^ In morals, 
 no consideration is required to render a promise binding ; for 
 it is a grievous wrong' to excite one's hopes by a promise, and 
 then refuse to fulfil it. Moreover, in this way a confiding 
 person may be ruined, should he, relying on the promise, 
 assume obligations which on its breach he cannot discharge. 
 So that, when the law declines to enforce an undertaking 
 entered into without consideration, it does not declare its 
 
 1 And see Philpot v. Gruninger, 14 
 Wal. 570 ; Eockwellku. Brown, 54 N. T. 
 210; Thomas i>. Thomas, 2 Q. B. 851, 
 859. 
 
 2 Other definitions are, ^— 
 
 Tet-mes de la Ley. — " Consideration 
 is the material cause, or quid pro quo, of 
 a contract, without which it will not be 
 effectual or binding." Adopted in Met. 
 Con. 161. 
 
 Di/er. — "A consideration is a cause, 
 or meritoiious occasion, requiring a 
 mutual recompense, in fact or in law." 
 Calthorpe's Case, 3 Dy. 334 ft, 336 6. 
 Adopted in Met. Con. 161. 
 
 Evans. — " Any act by which the 
 person making the promise has bene- 
 fit, or" the person to whom it is made 
 has any labor or detriment." App. 
 to Pothier's Obligations, approved in 
 Pollock Con. 2d ed. 151. "A con- 
 sideration is sufficient if there be a 
 benefit to the defendant or a detriment 
 to the plaintiff." Blackburn, J. in 
 Edgeware Highway Board v. Harrow 
 Dist. Gas Co. Law Rep. 10 Q. B. 
 92, 95. 
 
 Lush, J. — "A valuable considera- 
 
 14 
 
 tion, in the sense of the law, may con- 
 sist either in some right, interest, profit, 
 or benefit accruing to the one party, or 
 some forbearance, detriment, loss, or re- 
 sponsibility, given, suffered, or under- 
 taken by the other." Currie v. Misa, 
 Law Rep. 10 Ex. 153, 162. 
 
 Patteson, J. — " Consideration means 
 something which is of some value in the 
 eye of the law, moving from the plain- 
 tiff; it may be some benefit to the plain- 
 tiff, or some detriment to the defend- 
 ant." Thomas v. Thomas, 2 Q. B. 851, 
 859. 
 
 Kent. — "A valuable consideration is 
 one that is either a benefit to the party 
 promising, or some trouble or prejudice 
 to the party to whom the promise is 
 made." 2 Kent Com. 465. 
 
 Leake. — " The consideration may be 
 described generally as some matter ac- 
 cepted or agreed for as a return or equiv- 
 alent for the promise made, showing 
 that the promise is not made gratui- 
 tously." Leake Coni 17. 
 
 a 2 Kent Com. 4G3 ; Pollock Con. 
 2d ed. 151-155; 1 Pars. Con. 427 et 
 seq. 
 
CHAP, in.] THE CONSIDERATION. § 42 
 
 violation just, but simply it will not take jurisdiction to rec- 
 tify the moral wrong. 
 
 § 40. Required. — It is, therefore, the rule of our law, 
 prevailing both in the courts of law^ and in those also of 
 equity,^ that no executory, simple contract is valid with- 
 out a consideration. The contracts here meant are express 
 ones, and those implied as of fact; yet it is believed like- 
 wise that, without a consideration, the law never creates a 
 contract.^ 
 
 § 41. Nature of Value. — Our law estimates its values * in 
 money. So that one who has suffered a civil wrong of what- 
 ever nature, when he sues the wrong-doer for his damages, 
 can have a judgment expressed in dollars and cents, but not 
 in anything else. True, there are actions at law for the pos- 
 session of lands, in equity for specific performance, and other 
 like actions ; but they all relate to things which may be esti- 
 mated in money. Even a divorce suit is of this sort ; for a 
 man who has seduced away another's wife can be made to pay 
 money damages. Hence, in reason, and it is believed sub- 
 stantially on the authorities, the consideration should be some- 
 thing to which a jury can attach pecuniary value ; though, 
 like the value of a thing stolen in larceny,^ it may be less 
 than the smallest coin or denomination known to the law. 
 Still, — 
 
 § 42. Exception — " Love and Affection " — (Deed). — A 
 deed of land offers a single exception, peculiar in its nature. 
 We shall see in the next chapter that a seal imports a consid- 
 eration, so no actual one need in general be added to make a 
 sealed contract binding. But for a technical reason a deed of 
 land, which is under seal, if, like most of our deeds, it derives 
 
 > Travis v. DufFan, 20 Texas, 49; ton, &c. Railroad, 11 Neb. 186; Gay y. 
 
 Doebler v. Waters, 30 Ga. 344 ; Lowe v. Botts, 13 Bush, 299. 
 Bryant, 32 Ga. 235 ; Aldridge v. Tur- = 1 Story Eq. Jut. §787 ; Leake Con. 
 
 ner, 1 Gill & J. 427 ; Tenney v. Prince, 608 ; Littlejohu v. Patillo, 2 Hawks, 
 
 4 Pick. 385, 7 Pick. 243; Bailey v. 302; Washington Bank v. Farmers 
 
 Walker, 29 Misso. 407 ; Lang v. John- Bank, 4 Johns. Oh. 62. 
 son, 4 Fost. N. H. 302 ; Culver v. Ban- ' Ante, § 24. 
 
 ning, 19 Minn. 303 ; Eagle Manuf. Co. * Ante, § 38. 
 
 V. Jennings, 29 Kan. 657 ; Hendy v. * 1 Bishop Grim. Law, § 224. 
 Kier, 59 Cal. 138 ; Reynolds v. Burling- 
 
 15 
 
§ 43 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 its effect from the Statute of Uses, must be founded on an ac- 
 tual consideration.^ Now, by early decisions, extending more 
 or less downward to later periods and our own country, if the 
 deed was by what was called bargain and sale, the consider- 
 ation for it must be of the " valuable " sort ; ^ but, if it was 
 by covenant to stand seised, which was the form in family 
 settlements and conveyances to the grantor's relatives, the 
 " good " consideration of "love and affection " was appropriate 
 and sufficient.^ Thereupon, when a deed of bargain and sale 
 was found to lack its valuable consideration, and to be inade- 
 quate as such, if it was between persons so related that it should 
 have been by covenant to stand seised, supportable on love 
 and affection, the court, to give effect to the intent of the 
 parties, would treat it as a covenant to stand seised ; * thus 
 was the distinction, as to the form of the deed, broken down. 
 Time and legislation have exerted still further modifying 
 influences both in England and with us. So that now, in 
 each of our States, we have in practical use but a single form 
 of deed ; requiring, if between strangers, the valuable consid- 
 eration ; if between the other parties mentioned, the mere 
 " good " consideration will, where no rights of third persons 
 intervene, suffice.^ For the purpose of this distinction, — 
 
 § 43. " Good," " Valuable," defined. — "A good considera- 
 tion," says Blackstone, " is such as that of blood, or of nat- 
 
 ^ Post, § 124. the conveyance be an inadequate mode 
 
 " Mildmay's Case, 1 Co. 175 a, 177, of giving eflfect to the intention, accord- 
 
 and the authorities in the next note. ing to the letter of the instrument, it is 
 
 ' Sharington i'. Strotton, Plow. 298, to be construed under the assumption of 
 
 301, 309; Ward v. Lambert, Cro. Eliz. another character, so as to give it effect." 
 
 394 ; Milburn v. Salkeld, "Willes, 673 ; 4 Kent Com. 493. And see post, § 395. 
 
 Bedell's Case, 7 Co. 40 a; Goodtitle v. 6 Gale w. Williamson, 8 M. & W. 405, 
 
 Petto, 2 Stra. 934 ; 4 Kent Com. 492 ; 409 ; Gully v. Exeter, 10 B. & C. 584 ; 
 
 Saunders v. Cadwell, 1 Cow. 622 ; How- Schnell v. Nell, 17 Ind. 29 ; Kirkpatrick 
 
 ell V. Delancey, 4 Cow. 427 ; Gault v. v. Taylor, 43 111. 207 ; Ford v. EUing- 
 
 Hall, 26 Maine, 561 ; Houseman v. Seb- wood, 3 Met. Ky. 359 ; Pennington v. 
 
 ring, 16 Johns. 515; Perry v. Price, 1 Gittings, 2 Gill &'j. 208; Hayes v. Ker- 
 
 Misso. 553. show, 1 Sandf . Ch. 258 ; Coggeshall v. 
 
 < Crossing?). Scudamore, 1 Vent. 137, CoggeshaU, 2 Strob. 51; Killough v. 
 
 1 Mod. 175 ; Milburn v. Salkeld, Willes, Steele, 1 Stew. & P. 262 ; Stovall v. Bar- 
 
 673 ; Wallis v. Wallis, 4 Mass. 135 ; nett, 4 Litt. 207 ; Hanson v. Bnckner, 
 
 Parker v. Nichols, 7 Pick. 111. "It is 4 Dana, 251; Blackerby v. Holton, 5 
 
 a principle of law, that, if the form of Dana, 520. 
 16 
 
CHAP. III.] THE CONSIDERATION. § 45 
 
 ural love and affection, when a man grants an estate to a near 
 relation ; being founded on motives of generosity, prudence, 
 and natural duty. A valuable consideration is such as inoney, 
 marriage, or the like, which the law esteems an equivalent 
 given for the grant ; and is, therefore, founded in motives of 
 justice. Deeds made upon good consideration only, are con- 
 sidered as merely voluntary, and are frequently set aside in 
 favor of creditors and bona fide purchasers." ^ 
 
 § 44. " Moral Obligation." — Some of the older authorities 
 hold, that, if one under what was termed a moral obligation 
 to do a thing promises to do it, this is a consideration 
 rendering the promise valid in law.^ Such a doctrine, carried 
 to its legitimate results, would release the tribunals from the 
 duty to administer the law of the land ; and put, in the place 
 of law, the varying ideas of morals which the changing in- 
 cumbents of the bench might from time to time entertain. 
 It does not, therefore, now prevail in England,^ or probably 
 to any wide extent in our States ; * though there are States 
 in which it has been adhered to so recently that we could not 
 say it is not there the law now.^ And there are American 
 cases in which this untenable doctrine of a moral obligation 
 is put forward as the basis of sound decisions,^ which would 
 better rest on other reasons.^ 
 
 § 45. Amount of Value. — Where an exact sum of money 
 is given or to be given by the one party in return for some- 
 thing not money by the other, or where the thing on neither 
 
 ' 2 Bl. Cora. 297. Ky. 519 ; Musser v. Ferguson, 5 Smith, 
 
 2 Lee V. Muggeridge, 5 Taunt. 36 ; Pa. 475. I forbear to cite the body of 
 
 Vance v. Wells, 8 Ala. 399 ; Hawkes v. the American authorities on either side 
 
 Saunders, Cowp. 289, 290. of this question, since they would oc- 
 
 5 Eastwood V. Kenyon, 11 A. & E. cupy space to little purpose. Eachprac- 
 
 438 ; Beaumont v. Reeve, 8 Q. B. 483, titioner must determine the question, 
 
 487 ; Jennings u. Brown, 9 M. & W. for his own State, upon an examination 
 
 496 ; note to Wennall ». Adney, 3 B. & which could be but little aided by any- 
 
 P. 247, 249. thing further here. 
 
 * Dodge V. Adams, 19 Pick. 429; 6 Ante, § 12. 
 
 Ehle V. Judson, 24 Wend. 97 ; Waters ' For example, Edwards v. Nelson, 
 
 V. Bean, 15 Ga. 358 ; Updike v. Titus, 2 51 Mich. 121 ; Stebbins v. Crawford, 1 1 
 
 Beasley, 151 ; McElven v. Sloan, 56 Ga. Norris, Pa. 289. As to which see Shep- 
 
 208; Burton v. Le Roy, 5 Saw. 510; ard v. Rhodes, 7 R. L 470. And see 
 
 Nine ». Starr, 8 Oregon, 49. post, § 100. 
 
 * Montgomery v. Lampton, 3 Met. 
 
 2 17 
 
§ 47 IN GENERAL WITH ILLUSTRATIONS. [BOOK I, 
 
 side is money, a court of law and commonly a court of equity 
 will not interfere with their estimates of value, but will 
 hold the contract good though the judge or jury should deem 
 the value to be greatly more or less thau the parties did. 
 Yet inadequacy of value may be " strong evidence of fraud," ^ 
 should that question be raised, or it may suggest fraud ;2 and, 
 in a gross case, it may be the controlling circumstance in es- 
 tablishing the fraud.3 So, on an appeal to the discretion of the 
 court, in a bill for specific performance, this relief will be with- 
 held, not simply where the price is greater or less than the 
 court would deem adequate, but where it is so much greater 
 or less as to render the bargain unconscionable or its enforce- 
 ment unjust, — a question upon which there are some distinc- 
 tions, and perhaps dififerences of judicial opinion.* But, — 
 
 § 46. Two Values fixed by Law. — Where the law has estab- 
 lished the values, as it has of coin and some other things, a par- 
 ticular sum of money, or another thing thus made equal in 
 worth to such sum, is not a consideration for a greater sum, or 
 for a thing which the law has made to be worth more.^ Thus, — 
 
 § 47. Fees of Officer. — If a statute has prescribed an exact 
 fee for the performance of a specified duty by an officer, an 
 agreement with him to pay more is void.^ And it is so though 
 
 1 Griffith V. Spratley, 1 Cox, 383, 389. say, 5 Ohio, 468 ; Osgood v. Franklin, 2 
 
 2 Talbott V. Hooser, 12 Bush, 408. Johns. Ch. 1 ; Hallett v. Collins, 10 
 s Newhall w. Paige, 10 Gray, 366; How. U. S. 174; Odineal v. Barry, 24 
 
 Earl V. Peck, 64 N. T. 596 ; Hunter Missis. 9 ; Haines v. Haines, 6 Md. 435 ■ 
 
 V. McLaughlin, 43 Ind. 38 ; Merriman v. McCormick v. Malin, 5 Blackf. 509. 
 Lacefield, 4 Heisk. 209; McMuIlen v. * Haywood v. Cope, 25 Beav. 140; 
 
 Gable, 47 HI. 67 ; Comstock v. Purple, Bower v. Cooper, 2 Hare, 408 ; Powers 
 
 49 111. 158; Duncan v. Sanders, 50 111. v. Hale, 5 Post. N. H. 145; Gasque v. 
 
 475; Nash I). Lull, 102 Mass. 60; Worth Small, 2 Strob. Eq. 72; Cathcart ». 
 
 V. Case, 42 N. Y. 362 ; Callaghan v. Robinson, 5 Pet. 263, 276 ; Seymour 
 
 Callaghan, 8 CI. & F. 374; Groves v. v. Delancy, 3 Cow. 445; Harrison ». 
 
 Perkins, 6 Sim. 576; Stilwell v. Wil- Town, 17 Misso. 237; Shepherd v. 
 
 kins, Jacob, 280, 282 ; Taylor v. Obee, Bevin, 9 Gill, 32 ; Galloway v. Barr, 12 
 
 3 Price, 83 ; Western v. Russell, 3 Ves. Ohio, 354 ; Cole v. Cole, 106 HI. 482 ; 
 
 & B. 187 ; Murray v. Palmer, 2 Sch. & Conrad v. Schwamb, 53 Wis. 372 ; Ab- 
 
 Lef. 474, 488 ; Clarkson v. Hanway, 2 bott v. Sworder, 4 De G. & S. 448. 
 P. Wms. 203 ; Griffith v. Spratley, I « Schnell v. Nell, 17 Ind. 29 ; Bailey 
 
 Cox, 383 ; Hough v. Hunt, 2 Ohio, 495 ; v. Day, 26 Maine, 88. See Brachan v. 
 
 Green v. Thompson, 2 Ire. Eq. 365 ; Griffin, 3 Call, 433. 
 White V. Flora, 2 Tenn. 426 ; Hardeman » Burk v. Webb, 32 Mich. 173 ; Mor- 
 
 V. Burge, 10 Yerg. 202; Knobb ».Lind- rell v. Quarles, 35 Ala. 544; Territory 
 18 
 
CHAP. III.] THE CONSIDERATION. § 50 
 
 he puts forth more than the ordinary exertions.^ But a 
 promise to pay for services quite outside of what the law 
 requires of him may be enforced. ^ 
 
 § 48. To do what Law requires. — One by undertaking to 
 do or by doing what the law or a previous agreement requires 
 of him merits nothing, and it is not a consideration for any- 
 thing else.3 Thus, — 
 
 § 49. To pay Interest due. — A debtor's promise to pay 
 interest for which he is already liable will not support an 
 agreement by the creditor to postpone the collection of the 
 debt.* So, — 
 
 § 50. Less than due. — When any ascertained sum of 
 money is fully due and payable from one to another, if the 
 creditor accepts a less sum in satisfaction,^ or promises to 
 take less,® the payment in the one instance is a discharge of 
 only so much as it amounts to, and in the other the promise 
 is void. This, in most of the cases, is assumed to be the law, 
 settled beyond controversy. And, on principle, there is here 
 no consideration, and the mere unexecuted promise to accept 
 the less sum is void. But under our third sub-title we 
 
 V. King, 1 Oregon, 106 ; Evans v. Tren- 6 f'jtch v. Sutton, 5 East, 230; Bange 
 
 ton, 4 Zab. 764 ; Smith v. Whildin, 10 v. Koop, 48 N. Y. 225 ; Bliss v. Swartz, 
 
 Barr, 39; Kernion v. Hills, 1 La. An. 7 Lans. 186; Bryan i;. Foy, 69 N. C. 
 
 419 ; Decatur v. Vermillion, 77 111. 315 ; 45 ; Rea v. Owens, 37 Iowa, 262 ; Craw- 
 
 Joliet V. Tuohey, 1 Bradw. 483. ford v. Millspaugh, 13 Johns. 87 ; Heath- 
 
 1 Hatch V. Mann, 15 Wend. 44. cote v. Crookshanks, 2 T. R. 24; Smith 
 
 * England v. Davidson, 1 1 A. & E. v. Bartholomew, 1 Met. 276 ; Pearson v. 
 
 856. Possibly the authorities are not Thomason, 15 Ala. 700; Bailey u. Day, 
 
 quite in harmony on this question, but I 26 Maine, 88 ; Harrlman v. Harriraan, 
 
 have stated what I believe to be the true 12 Gray, 341 ; Curran v. Rnmmell, 118 
 
 doctrine. Mass. 482; Longworth v. Higham, 89 
 
 8 Ayrcs v. Chicago, &c. Railroad, 52 Ind. 352 ; Warren v. Hodge, 121 Mass. 
 
 Iowa, 478; Tilden v. New York, 56 106; Lathrop v. Page, 129 Mass. 19; 
 
 Barb. 340 ; Eblin v. MUIer, 78 Ky. 371 ; Willis v. Gammill. 67 Misso. 730 ; We- 
 
 Merrick v. Giddlngs, 1 Mackey, 394 ; ber v. Couch, 134 Mass, 26. 
 Keffer v. Grayson, 76 Va. 517; Lydick « Foakes v. Beer, 9 Ap. Cas. 605; 
 
 V. Baltimore, &c. Railroad, 17 W. Va. McKenzie v. Culbieth, 66 N. C. 534; 
 
 427 ; Shci-win v. Brigham, 39 Ohio Line v. Nelson, 9 Vroom, 358 ; Rose v. 
 
 State, 137. Compare with Goebel v. Daniels, 8 R. I. 381 ; Moore v. Hylton, 
 
 Linn, 47 Mich. 489. 1 Dev. Eq. 433 ; Robert i;. Bamnm, 80 
 
 4 Stuber v. Schack, 83 111. 191 ; Dow Ky. 28; Smith v. Phillips, 77 Va. 548; 
 
 V. Chambers, 14 Philad. 647 ; Holmes Bryan v. Brazil, 52 Iowa, 350 ; Lank- 
 
 V. Boyd, 90 Ind. 332 ; Hume v. Maze- ton v. Stewart, 27 Minn. 346 ; Wharton 
 
 lin, 84 Ind. 574. v. Anderson, 28 Minn. 301. 
 
 19 
 
§51 
 
 IN GENERAL WITH ILLUSTRATIONS. 
 
 [book I. 
 
 shall see that an executed contract requires no considera- 
 tion ; ^ so that, if, on the part payment of a debt, though fully 
 due, the creditor forgives the rest, in any form which will 
 constitute a gift, he can no more maintain a suit for it after- 
 ward than for any other gift. And such is believed to be the 
 true law.^ Moreover, — 
 
 § 51. Release under Seal. — As a seal implies a considera- 
 tion,3 a creditor's release under seal to his debtor, or even to 
 one of several joint debtors, without actual payment, will bar 
 a suit for the debt* Or, — 
 
 1 Post, § 80-84. 
 
 2 Tyler Cotton-press Co. v. Chevalier, 
 56 Ga. 494; The State v. Story, 57 
 Missis. 738; Lamprey v. Lamprey, 29 
 Minn. 151 ; Paddleford ». Thacher, 48 
 Vt. 574 ; Burrill v. Saunders, 36 Maine, 
 409. And see Murray v. Snow, 37 
 Iowa, 410; White v. Gray, 68 Maine, 
 579 ; Smalley v. Line, 1 Stew. Ch. 348 ; 
 Paxton V. Wood, 77 N. C. 11. The 
 cases in which, upon the facts, the ques- 
 tion of the effect of accepting a less sum 
 for the greater, viewed as a gift of the 
 difference, might have been raised, have 
 generally passed off without the atten- 
 tion of counsel or the court being di- 
 rected to the point ; and they cannot, in 
 any just view, be an authority for what 
 was not considered. " We take it to be 
 a sound principle," it was observed in 
 the Supreme Court of the United States, 
 " that no proposition of law can be said 
 to be overruled by a court, which was 
 not in the mind of the court when the 
 decision was made." Woodruff v. Par- 
 ham, 8 Wal. 123, 138. So that, when 
 the cases are properly regarded, there is 
 believed to be not one which is contrary 
 to the doctrine of the text. The facts 
 of some of them exclude this view, and 
 the law cannot draw inferences against 
 the facts. Thus, if the debtor promised 
 to ,pay the balance when able, Fitch v. 
 Sutton, 5 East, 230, there can have been 
 no gift of such balance by the creditor. 
 And when the question is one of plead- 
 ing, a plea of the acceptance of a less 
 sum in satisfaction of a greater, Down v. 
 
 20 
 
 Hatcher, 10 A. & E. 121, cannot be ad- 
 judged otherwise than bad. Said Hol- 
 royd, J. in one of these cases: "An 
 agreement between a debtor and cred- 
 itor, that part of a larger sum due should 
 be paid by the debtor and accepted by 
 the creditor as a satisfaction for the 
 whole, might, under special circum- 
 stances, operate as a discharge of the 
 whole debt. But then the legal effect of 
 such an agreement might be considered 
 to be the same as if the whole debt had 
 been paid, and part had been returned, 
 as a gift to the party paying. Here," 
 &c. Thomas v. Heathorn, 2 B. & C. 
 477, 481, 482. For, as well said by Lord 
 Coke, " a lesser sum of money cannot 
 be a satisfaction of a greater," Co. Lit. 
 212 6; Pinnel's Case, 5 Co. 117 a; 
 though, obviously, a creditor receiving 
 the less sum may make a gift to his 
 debtor of the balance. It is quite within 
 the principles we are considering, and is 
 sound law, that the payment of a part 
 of a sum due is not a sufficient consid- 
 eration for a promise to extend. the time 
 to pay the residue. Eoyal v. Lindsay, 
 15 Kan. 591; Turnbull v. Brock, 31 
 Ohio State, 649; Overton v. Banister, 
 3 Hare, 503. 
 
 8 Post, § 119 ; Rutherford v. Baptist 
 Convention, 9 Ga. 54; Patton ». Ash- 
 ley, 3 Eng. 290; Wing v. Chase, 35 
 Maine, 260; Brewer v. Bessinger, 25 
 Missis. 86. 
 
 * Schuylkill Navigation Co. v. Har- 
 ris, 5 Watts & S. 28 ; Bender v. Samp' 
 son, II Mass. 42, 44,45; Valentine v. 
 
CHAP. III.] 
 
 THE CONSIDERATION. 
 
 §54 
 
 § 52. Payment in Values not fixed. — If, without the seal, 
 to a partial payment some consideration however small is 
 added, of a sort the value whereof is not, like money or a fee, 
 fixed by law,^ or if the whole payment is of a like sort,^ this, 
 when accepted in full discharge of the debt, will be effectual. 
 Thus (a distinction very thin), — 
 
 § 53. Payment guaranteed. — Though the payment of a 
 part, which is accepted in full, will not be adequate, even 
 where the debtor is in failing circumstances ; yet a guaranty 
 of such part from a responsible third person,^ or the payment 
 of such part in the third person's notes, which are afterward 
 paid,* or the third person's check,^ will operate in law, the 
 parties so agreeing, as a discharge of the whole. So, — 
 
 § 54. Payment before due — At Different Place. — If a part 
 is paid before the debt is due,* or at a different place from 
 that originally agreed upon,'' the discharge will be good. 
 Or,-. 
 
 Foster, 1 Met. 520 ; Walker v. McCul- 
 loeh 4 Greenl. 421 ; Lee v. Lancashire, 
 &c. Railway, Law Rep. 6 Ch. Ap. 527, 
 534 ; Payler v. Homersham, 4 M. & S. 
 423 ; Willing v. Peters, 12 S. & R. 177 ; 
 Willoughby v. Backhouse, 4 D. & R. 
 539, 2 B. & C. 821 ; Pinnel's Case, 5 Co. 
 117 a; Maclary v. Reznor, 3 Del. Ch. 
 445. Bat see Bra ton v. Wooten, 15 Ga. 
 570. 
 
 1 Williams v. Stanton, 1 Root, 426 ; 
 Blinn v. Chester, 5 Day, 359. 
 
 2 Pinnel's Case, 5 Co. 117 o; Bull v. 
 Bull, 43 Conn. 455 ; Arnold v. Park, 8 
 Bush, 3 ; McKenzie v. Culbreth, 66 N. C. 
 534. 
 
 8 Maddux v. Bevan, 39 Md. 485; 
 Little V. Hobbs, 34 Maine, 357 ; Boyd 
 V. Hitchcock, 20 Johns. 76 ; Le Page v. 
 McCrea, 1 Wend. 164 ; Kellogg i'. Rich- 
 ards, 14 Wend. 116; Gunn v. McAden, 
 2 Ire Eq. 79 ; Mason v. Campbell, 27 
 Minn. 54 ; Singleton v. Thomas, 73 Ala. 
 2U5, 208. There are cases which put 
 this upon the ground that to permit the 
 creditor to sue the debtor would be a 
 fraud on the. surety and the other cred- 
 itors. Steinmaa v. Magnus, 11 East, 
 
 390; Smith v. Bartholomew, 1 Met. 276, 
 278. See a similar principle in Poague 
 V. Spriggs, 21 Grat. 220. See, also, 
 Brooks V. White, 2 Met. 283 ; Goodnow 
 V. Smith. 18 Pick. 414; Fellows v. Ste- 
 vens, 24 Wend. 294; Keeler v. Salis- 
 bury, 33 N. Y. 648. 
 
 ^ Sanders v. Branch Bank, 13 Ala. 
 353 ; Webb v. Goldsmith, 2 Duer, 413 ; 
 Frisbie v. Lamed, 21 Wend. 450 ; Booth 
 V. Smith, 3 Wend. 66 ; Brooks v. White, 
 
 2 Met. 283 ; Brassell v. Williams, 5 1 Ala. 
 349, 352. 
 
 5 Guild V. Butler, 127 Mass. 386. 
 
 6 Pinnel's Case, 5 Co. 117 a; Schwei- 
 der V. Lang, 29 Minn. 254; Arnold v. 
 Park, 8 Bush, 3 ; Bowker v. Childs, 3 
 Allen, 434. 
 
 ' Pinnel's Case, supra ; McKenzie v. 
 Culbreth, 66 N. C. 534 ; Smith v. Brown, 
 
 3 Hawks, 580 ; Jones v. Bullitt, 2 Litt. 
 49 ; Fenwick v. Phillips, 3 Met. Ky. 87 ; 
 Jones V. Perkins, 29 Missis. 139 ; Reid 
 V. Hibbard, 6 Wis. 175. Future Pay- 
 ment. — One's own promissory note 
 for a part of a sum due, payable at a 
 future day, was in an old case held 
 inadequate in satisfaction for the whole, 
 
 21 
 
§ 57 IN GENERAL WITH ILLUSTRATIONS, [BOOK I. 
 
 § 55. Composition with Creditors. — If creditors, either all 
 or two or more of them, agree with their debtor and with one 
 another to accept a part of what he owes them severally 
 in discharge of the whole, the forbearance of one is a benefit 
 to another who might otherwise lose his whole debt, and it is 
 a saving of expense to all ; so that, on the execution of a 
 compromise like this, though not under seal, the new agree- 
 ment becomes a substitute for the old liabilities ; and, so long 
 as the debtor is in the performance of his part, he is pro- 
 tected from all further claims of those who have become 
 parties to the arrangement.^ 
 
 § 56. Sum in Dispute — Unliquidated. — If there is an un- 
 liquidated claim, or the sum due is in dispute, the payment of 
 any agreed sum, or the promise to pay it, in full discharge, 
 will be deemed to have proceeded on a sufficient consideration, 
 and will be adequate.^ A doctrine akin to this is — 
 
 § 57. Litigation — (Compromise). — To settle or avoid litiga- 
 tion is an object of value. So that, if one whom another is in 
 good faith pressing or suing, makes a promise on the strength 
 of which the suit is forborne or withdrawn, he can be com- 
 pelled to fulfil it ; though it should be afterward shown, or 
 the promisor knew at the time, that the demand was not well 
 founded in law or in fact.* And, in general terms, the com- 
 
 Cnmber K. Wane, 1 Stra. 426. Yet re- top v. Eodgdon, 119 Mass. 453; Fal- 
 cently, where a surety was added, this conbury v. Kendall, 76 Ind. 260. See 
 was adjudged sufficient. Whitsett v. Lanes v. Squyres, 45 Texas, 382. 
 Clayton, 5 Colo. 476. Possibly, under ^ Simmons v. Almy, 103 Mass. 33; 
 special circumstances, one might deem a Steams v. Johnson, 1 7 Minn. 142 ; Stew- 
 promise to pay a smaller sum at a fa- art v. Kershaw, 52 Misso. 224 ; Wehrum 
 ture time, especially when secured, pref- v, Kuhn, 61 N. Y. 623 ; Snow v. Grace, 
 erable to a larger sum in ready money. 29 Ark. 131 ; Falmerton v. Huxford, 
 To many an improvident man it might 4 Denio, 166; Taylor v. Nussbaum, 
 so prove. But this is chopping the logic 2 Duer, 302; Paxson v. Hewson, 14 
 of the law fine. Philad. 174; Bull v. Bull, 43 Conn. 455 ; 
 1 Good V Cheesman, 2 B. & Ad. 328 ; Euffner v. Hewitt, 7 W. Va. 585 ; Mur- 
 Norman v. Thompson, 4 Exch. 755; phy v. United States, 104 U. S. 464; 
 Steinman v. Magnus, 11 East, 390; Berdell u. Bissell, 6 Colo. 162 ; Childs ». 
 Boyd V. Hind, 1 H. & N. 938, 3 Jnr. Millville, &c. Ins. Co. 56 Vt. 609 ; Whit- 
 N. e. 566; Fellows ». Stevens, 24 Wend, ney v. Cook, 53 Missis. 551. And see 
 294 ; Pierce v. Jones, 8 S. C. 273 ; Chem- Sheldon v. Rice, 30 Mich. 296. 
 ical Nat. Bank v. Kohner, 85 N. Y. 189 ; » Bidwell v. Catton, Hob. 216 ; Cook 
 Robert v. Bamum, 80 Ky. 28 ; Perkins v. Wright, 1 B. & S. 559 ; Ex parte 
 V. Lockwood, 100 Mass. 249; Earring- Lucy,4DeG.M.&G.356, 17 Jur. 1143; 
 
 22 
 
CHAP. III.] THE CONSIDERATION. § 59 
 
 promise, fairly obtained, of a right at the time doubtful, con- 
 stitutes a valuable consideration, whatever a subsequent en- 
 lightenment may reveal concerning its validity.^ The value 
 consists in the release from an uncertain position with it* 
 anxieties, from apparent danger, and from inevitable expenses 
 and trouble. Still, — 
 
 § 68. Limits. — This doctiine runs close to another, from 
 which it is not easily distinguishable in a way to reconcile 
 all the cases. Manifestly, in legal reason, if the party setting up 
 the claim did not act in good faith, the settlement is void for 
 the fraud ; ^ or, if the parties were under a mutual misappre- 
 hension of the facts, it is void for the mistake ; ^ so, also, it is 
 void if obtained by threats or other like undue means.* Look- 
 ing at these and other principles in connection with the de- 
 cisions, we may deem the true rule to be, that, where the 
 claim is utterly destitute of foundation in law and fact, but 
 this was not known to him who made his promise in settle- 
 ment of it, thus negativing any presumption of his having 
 given the promise simply to avoid litigation, — or where there 
 is any other circumstance excluding the case from the reasons 
 controlling the last section, — there is no sufficient considera- 
 tion, and the promise to pay is without effect.^ Also, if the 
 compromise is, as in some circumstances it may be, in viola- 
 tion of public policy or law, it will be, within the principle 
 about to be stated, void.® 
 
 § 59. Illegal — Against Public Policy. — The courts, being 
 
 Warren v. Williamson, 8 Baxter, 427 ; 61 N. Y. 623 ; Troy v. Bland, 58 Ala. 
 
 Little ». Allen, 56 Texas, 133; Parker 197. 
 
 i;. Enslow, 102 III. 272; Longridge v. ^ Stewartu. Ahrenfeldt, 4Denio, 189 
 
 Dorville, 5 B. & Aid. 117; Wilkinson ». » Bell v. Gardiner, 4 Scott N. R. 
 
 Byers, 1 A. & E. 106; Flannagan v. 621, 4 M. & G. 11 ; Southall v. Bigg, II 
 
 Kilcome, 58 N. H. 443; Jones v. Kit- C. B. 481, 15 Jur. 706; Forman v. 
 
 tenhouse, 87 Ind. 348. Wright, 11 C B. 481, 15 Jur. 707. 
 
 1 Callisher v. BischofFsheim, Law * BuUene v. Blain, 6 Bis. 22. 
 Rep. 5 Q. B. 449 ; Hund v. Geier, * Compare the cases cited to the last 
 
 72 III. 393; Honeyman v. Jarvis, 79 section with Davisson v. Ford, 23 W. 
 
 111. 318 ; Husband v. Epling, 81 111. Va. 617 ; MulhoUand v. Bartlett, 74 111. 
 
 172; Cooke v. Murphy, 70 HI. 96; 58; Ware v. Morgan, 67 Ala. 461; 
 
 DafiSn V. Kobeits, 9 Bradw. 103; Hin- Seaman u. Seaman, 12 Wend. 381. 
 
 dert V. Schneider, 4 Bradw. 203 ; Wray And see post, § 70. 
 V. Chandler, 64 Ind. 146 ; Allen v. Buck- • 1 Pars. Con. 440 ; Everinghara v. 
 
 nam, 75 Maine, 352 ; Wehmm v. Euhn, Meighan, 55 Wis. 354. 
 
 23 
 
§62 
 
 IN GENERAL WITH ILLUSTRATIONS. 
 
 [book I. 
 
 established to conserve thie law, good morals, and the due 
 order of society, cannot lend their aid to parties conspiring to 
 impede these objects. Therefore a consideration immoral, 
 illegal, or contrary to public poUcy will not support a con- 
 tract.^ This topic will occupy a chapter further on.^ 
 
 § 60. 'What concerns the Parties. — If a consideration, how- 
 ever adequate in itself, in no way concerns the parties either 
 personally or as representing the interests of others, — or, if 
 it is procured neither by one of them nor by any other person 
 in behalf of such one, — it will not support a contract.^ The 
 common form of this doctrine is, that — 
 
 § 61. Benefit or Disadvantage. — It must be something ben- 
 eficial to the one party, or disadvantageous to the other, or to 
 persons whom the parties represent.* Thus, — 
 
 §62. Extending Time. — If one to whom another owes 
 money simply promises him to extend the time of payment, 
 
 I Tucker v. West, 29 Ark. 386 ; Tay- 
 lor V. Chester, Law Rep. 4 Q. B. 309 ; 
 Porter v. Jones, 52 Misso. 399; Har- 
 wood V. Knapper, 50 Misso. 456 ; Ston^ 
 enburg v. Lybrand, 13 Oliio State, 228 ; 
 Stembarg v. Bowman, 103 Mass. 325 ; 
 Bailey ii. Bussing, 28 Conn. 455 ; Ache- 
 son V. Miller, 2 Ohio State, 203; Widoe 
 V. Webb, 20 Ohio State, 431 ; Hennessey 
 V. Hill, 52 HI. 281 ; Pearce v. Brooks, 
 Law Rep. 1 Ex. 213; Deans v. Mc- 
 Lendon, 30 Missis. 343 ; BIy v. Second 
 National Bank, 29 Smith, Pa. 453 ; Ives 
 V. Bosley, 35 Md. 262 ; Brown v. Brine, 
 1 Ex. D. 5. 
 
 '' See also post, § 74, 467. 
 
 3 Thomas ». Thomas, 2 Q. B. 851, 
 859 ; Simson v. Brown, 68 N. Y. 355. 
 And see Stewart v. Hamilton College, 2 
 Denio, 403 ; Salmon v. Brown, 6 Blackf. 
 347 ; Bingham v. Kimball, 17 Ind. 396 ; 
 Fugure v. Mutual Society, 46 Vt. 362 ; 
 Philpot V. Gruninger, 14 Wal. 570 ; Page 
 V. Becker, 31 Misso. 466. 
 
 « Ante, § 38, note ; 1 Chit. Con. 11th 
 Am. ed. 28; Met. Con. 163; Edgeware 
 H. Board v. Harrow Dist. Gas Co. Law 
 Rep. 10 Q. B. 92, 95, 96 ; Currie v. Misa, 
 Law Rep. 10 Ex. 153, 162; Buchanan 
 V. International Bank, 78 111. 500; Cole- 
 24 
 
 man v. Eyre, 45 N. T. 38 ; Glasgow v. 
 Hobbs, 32 Ind. 440 ; Greene v. Barthol- 
 omew, 34 Ind. 235 ; Pitt v. Gentle, 49 
 Misso. 74; Williamson v. Clements, 1 
 Taunt. 523; Sanford v. Hnxford, S2 
 Mich. 313; Neal v. Gilmore, 29 Smith, 
 Pa. 421 ; Conover v. Stillwell, 5 Vroom, 
 54; McCarty v. Blevins, 5 Yerg. 195; 
 Tompkins v. Philips, 12 Ga. 52; Moly- 
 neux V. Collier, 17 Ga. 46; Doyle v. 
 Knapp, 3 Scam. 334 ; Warren v. Whit- 
 ney, 24 Maine, 561 ; Hildreth v. Pinker- 
 ton Academy, 9 Post. N. H. 227 ; Brown 
 V. Brine, I Ex. D. 5, 7; Sands w. 
 Crooke, 46 N. Y. 564. Said Stanley, 
 J. in Flannagan v. Kilcome, 58 N. H. 
 443 : " A slight benefit conferred on the 
 defendant, or the smallest injury or in- 
 convenience, or risk of injury or incon- 
 venience, suffered by the plaintiff, though 
 neither the defendant nor any other per- 
 son was benefited thereby, is enough." 
 Referring also to Sanborn v. French, 2 
 Fost. N. H. 246, 248 ; Davis v. Morgan, 
 4 B. & C. 8 ; Scotson v. Pegg, 6 H. & N. 
 295 ; 1 Pars. Con. 431. And that actual 
 benefit need not be realized, see Bills v. 
 Polk, 4 Lea, 494; Dyer v. McPhee, 6 
 Colo. 174. 
 
CHAP. III.] 
 
 THE CONSIDEBATION, 
 
 §63 
 
 nothing passing between the parties as a consideration for 
 this, the promise is void.^ But if the debtor pays to his 
 creditor the interest in advance,^ or undertakes to pay an 
 increased rate of interest,^ or gives him anything else of 
 value,* this, though the debt is fully due and payable, will 
 sustain a promise fixing a day for paying it in the future. 
 On the other hand, — 
 
 § 63. Same as a Consideration. — A creditor's mere delay 
 to sue his debtor is regarded either as a gift or as a thing of 
 no value, unless there is an agreement for delay.^ But a 
 forbearance pursuant to a promise, or even a mere promise to 
 forbear, is sufficient to support an undertaking to do some- 
 thing else.® An agreement to forbear in general terms means, 
 for a reasonable time, and it is good ; ^ " for a short time," is 
 too indefinite to have effect.^ Forbearance of a claim not 
 valid in lavs^ is never a consideration ; ® as, if one whose money 
 
 1 Kellogg V. Olmsted, 25 N. Y. 189 ; 
 Bates V. Starr, 2 Vt. 536; Krst Na- 
 tional Bank v. Church, 3 Thomp. & C. 
 10 ; Van Allen v. Jones, 10 Bosw. 369 ; 
 Farmelee v. Thompson, 45 N. Y. 58. 
 
 2 Dickersou v. Ripley, 6 Ind. 128; 
 Wright V. Bartlett, 43 N. H. 548 ; Wil- 
 liams V. Scott, 83 Ind. 405. And see 
 Warner v. Campbell, 26 111. 282 ; Har- 
 bert V. Bumont, 3 Ind. 346. 
 
 * Beckner v. Carey, 44 Ind. 89 ; Enapp 
 V. Mills, 20 Texas, 123; Clarkson v. 
 Creely, 35 Misso. 95 ; Smith v. Graham, 
 34 Mich. 302. See Kinsey v. Wallace, 
 36 Cal. 462. 
 
 * Miller v. Gardner, 49 Iowa, 234 ; 
 Smith V. School District, 17 Kan. 313. 
 
 * Mecomey v. Stanley, 8 Cush. 85 ; 
 Manter v. Churchill, 127 Mass. 31. 
 
 " Hockenbury v. Meyers, 5 Vroom, 
 346; Mechanics, &c. Bank v. Wixson, 
 42 N. Y. 438 ; Gary v. White, 52 N. Y. 
 138 ; Underwood v. Hossack, 38 111. 208 ; 
 Raymond v. Smith, 5 Conn. 555 ; Rus- 
 sell v. Babcock, 14 Maine, 138 ; Cook v. 
 Duvall, 9 Gill, 460 ; Pennsylvania Coal 
 Co. V. Blake, 85 N. Y. 226; Collins v. 
 Barnes, 2 Norris, Pa. 15; Benner v. 
 Van Norden, 27 La. An. 473; New- 
 ton V. Carson, 80 Ky. 309; Jasper v. 
 
 Tavis, 76 Misso. 13 ; Brownell v. Harsh, 
 29 Ohio State, 631 ; Morton ». Burn, 7 
 A. & E. 19 ; Gove v. Newton, 58 N. H. 
 359. 
 
 '' Glasscock v. Glasscock, 66 Misso. 
 627; Calkins v. Chandler, 36 Mich 320; 
 Payne v. Wilson, 7 B. & C. 423 ; Old- 
 ershaw v. King, 2 H. & N. 517, 3 Jur. 
 N. s. 1152. 
 
 8 Lonsdale v. Brown, 4 Wash. C. C. 
 148; Sidwell w. Evans, 1 Pa. 383. It 
 appears to be the doctrine, about which 
 there may perhaps be some question on 
 the authorities, that, if the promise to 
 forbear is in general terms, yet too in- 
 definite to satisfy the law, if the promisor 
 does actually forbear for a reasonable 
 time, this makes the consideration -good. 
 Howe V. Taggart, 133 Mass. 284, and the 
 cases cited p. 287. This doctrine, rightly 
 understood, appears just. Post, § 87. 
 But it could in reason be applied only 
 where the terms of the contract were 
 such general ones as would include the 
 forbearance actually rendered, not where 
 they were precise and the particular for- 
 bearance was excluded by them. 
 
 9 Met. Con. 175; Loyd v. Lee, 1 
 Stra. 94; Leake Con. 625; Nispel v. 
 Laparle, 74 111. 306. 
 
 25 
 
§ 66 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 has been stolen from a contractor for carrying the mail, for- 
 bears to sue him and takes his note on time, both mistakenly 
 supposing there was a legal liability, the note cannot be col- 
 lected.i In like manner, a creditor's promise not to institute 
 proceedings in bankruptcy against his debtor will not support 
 a third person's undertaking to pay the debt, if, contrary 
 to the belief of the parties, such proceedings could not have 
 been maintained.^ 
 
 § 64. Gratuitous Bailment. — One's promise to another to 
 carry and deliver for him, to a third person, without compen- 
 sation, an article of personal property, is void because there 
 is no consideration for it.^ But if he takes the article into 
 his possession, he is then under legal obligation to deliver it ; 
 because, should he keep it, he would derive a benefit to 
 himself and cause a disadvantage to another, contrary to his 
 promise.* 
 
 § 65. Good-will. — The good-will of a business, though a 
 mere right of a not very tangible sort, is often sold for money, 
 and the law deems it a thing of value.^ Hence it is adequate 
 as a consideration.^ 
 
 §66. Knowledge. — The lawful communication of knowl- 
 edge, of any sort, to one who seeks it, is a valuable consider- 
 ation.' 
 
 1 Foster v. Metis, 55 Missis. 77. Johnson v. Reynolds, 3 Kan. 257 ; Coggs 
 
 2 Ecker I). McAllister, 54 Md. 362. v. Bernard, supra; Met. Con. 164-166, 
 
 * Coggs V. Bernard, 2 Ld. Raym. and cases there cited. 
 
 909, 911,919. And see Elsee v. Gat- * Succession of Journe, 21 La. An. 
 
 ward, 5 T. R. 143 ; Dartnall v. Howard, 391 ; Bradford v.' Peckham, 9 R. t 250 ; 
 
 4 B. i C. 345. Hoyt v. Holly, 39 Conn. 326 ; Bozon v. 
 
 * The correctness of this doctrine is Earlow, 1 Meriv. 459; Labouchere v. 
 settled by the authorities beyond dispute, Dawson, Law Rep. 13 Eq. 322; Buck- 
 but the same reason (ante, § 12) is not ingham v. Waters, 14 Cal. 146; Dayton 
 always given as in the text. Graves v. v. Wilkes, 17 How. Pr. 510; Williams 
 Tickuor, 6 N. H. 537 ; Colyar v. Tay- v. Wilson, 4 Sandf. Ch. 379. 
 
 lor, 1 Coldw. 372 ; Beardslee v. Rich- <> Smock v. Pierson, 68 Ind. 405 ; 
 
 ardson, 11 Wend. 25; Bland v. Wo- Bnnn o. Guy, 4 Bast, 190; Heichew «. 
 
 mack, 2 Mnrph. 373; Delaware Bank Hamilton, 4 Greene, Iowa, 317 ; Cruess 
 
 V. Smith, Edm. Sel. Cas. 351 ; Lloyd v. v. Kessler, 39 Cal. 336. 
 
 Barden, 3 Strob. 343 ; Clark v. Gaylord, ' Reed v. Golden, 28 Kan. 632 ; 
 
 24 Conn. 484; Jenkins v. Motlow, 1 Williams v. United States, 12 Ct. of 
 
 Sneed, Tenn. 248 ; Persch v. Quiggle, 7 CI. 192 ; Gates v. Bales, 78 Ind. 285 ; 
 
 Smith, Pa. 247; GuUedge v. Howard, Huckins v. Second National Bank, 47 
 
 23 Ark. 61 ; Dart v. Lowe, 5 Ind. 131 ; Mich. 92. 
 26 
 
CHAP, ni.] THE CONSIDERATION. S 70 
 
 § 67. Marriage — changes the rights and relations of the 
 parties to each other and to the community, hence it is a 
 valuable consideration, — one of the best in the law to sup- 
 port any promise.^ Yet, if a man has already agreed to marry 
 a woman, her mere expectation that he will do it, nothing new 
 passing between the parties, will not sustain a fresh promise 
 from him.2 
 
 § 68. Old Contract for New. — The cancelling of a contract, 
 or the relinquishment of rights under it, is a valid consid- 
 eration for entering into a new one.^ On this, among other 
 grounds, the substitution of contracts is sustained.* 
 ^-^^§ 69. other nlustrationiB — might be added indefinitely. 
 But, as each case must stand on its individual facts, always 
 varying, and the principles already appear, they would be of 
 little practical service. 
 
 § 70. Non-ezisteuce of Thing — Misapprehension. — The non- 
 existence, contrary to the belief of the parties, of that whereto 
 the consideration relates, will render it ineffectual.^ For ex- 
 ample, a deed supposed to convey land, but conveying noth- 
 ing;^ forbearance, as just said, where the cause of action is 
 without foundation in law ; ' an obligation which the parties 
 look upon as legal, but not so in truth, and the question not 
 even doubtful ; * a patent apparently good, yet really void for 
 
 1 1 Bishop Mar. Women, § 775, 776 ; The State v. Illyes, 87 Ind. 405 ; Rogers 
 Wright V. Wright, 54 N. Y. 437 ; Wall v. Walsh, 12 Neb. 28 ; Hopkins v. 
 V. Scales, 1 Dev. Eq. 476. A release Hinkley, 61 Md. 584. 
 
 from a contract to marry is a valuable * Murphy v. Jones, 7 Ind. 529. See 
 
 consideration. Snell v. Bray, 56 Wis. Campbell v. Medbury, 5 Bis. 33 ; Frier- 
 
 156. mood V. Bouser, 17 Ind. 461 ; Sheldon v. 
 
 2 Raymond v. Sellick, 10 Conn. 480, Harding, 44 111. 68 ; EUery v. Cunning- 
 483. ham, 1 Met. 112; Anderson v. Arm- 
 
 » Cutter ». Cochrane, 116 Mass. stead, 69 111. 452 ; Curtis u. Clark, 133 
 
 408 ; post, § 768. Mass. 509. See Webster v. Laws, 89 
 
 * Rollins V. Marsh, 128 Mass. 116, N. C. 224. 
 120; Little v. District of Columbia, 19 ' Ante, § 63; Palfrey v. Portland, 
 
 Ct. of CI. 323 ; Thornton v. Gnice, 73 &c. Railroad, 4 Allen, 55, 57 ; Sharpe v. 
 
 Ala. 321; Marine, &c. Mining, &c. Co. Rogers, 12 Minn. 174; Strahn v. Ham- 
 
 V. Bradley, 105 U. S. 175; Farrar v. ilton, 38 Ind. 57. 
 
 Toliver, 88 111. 408 ; Windham k. Doles, 8 Logan v. Mathews, 6 Barr, 417; 
 
 59 Ga. 265 ; Shaffer v. McKanna, 24 Jarvis v. Sutton, 3 Ind. 289. See Flem- 
 
 Kan. 22; Perkins w. Hoyt, 35 Mich. 506 ; ing v. Ramsey, 10 Wright, Pa. 2.52; 
 
 Lee V. Davis, 70 Ind. 464. ^ Allen v. Prater, 30 Ala. 458 ; Ott v. 
 
 ' Gibson v. Pelhie, 37 Mich. 380 ; Garland, 7 Misso. 28. 
 
 27 
 
§72 
 
 IN GENERAL WITH ILLTJSTEATIONS. 
 
 [book I. 
 
 the want of novelty and utility;^ — these are specimens of 
 apparent considerations, without substance, and therefore not 
 adequate to support a promise.^ If a suit on the promise is 
 brought, the defence is based on what is termed a — 
 
 § 71. FaUure of Consideration. — For, if that for which the 
 promise was made proves a nullity, the contract becomes 
 void.3 Thus, a promissory note given for a warranted sewing- 
 machine found to be worthless cannot be collected by the 
 original holder.* If, while the consideration is supposed to 
 be valid, money is paid on the contract, it may on discovery 
 of the invalidity be recovered back.^ And the like principle 
 applies to things other than money .^ But, — 
 
 § 72. Defect known. — If the parties are in no degree mis- 
 taken, and the thing is exactly what they supposed it to be, — 
 and there is no fraud, — the law, not undertaking to interfere 
 with their bargain, will hold the consideration to be good.^ 
 For example, if at a public sale it is announced that only such 
 a person's interest in the thing is to be disposed of, and that 
 if he has no interest the purchaser will get none, an entire 
 
 1 First National Bank v. Peck, 8 
 Kan. 660; Bierce e. Stocking, 11 Gray, 
 174 ; Lester v. Palmer, 4 Allen, 145 ; 
 Cross V Huntley, 13 Wend. 385 ; Geiger 
 V. Cook, 3 Watts & S. 266 ; Vaughan v. 
 Porter, 16 Vt. 266; Clongh v. Patrick, 
 37 Vt. 421 ; Dickinson v. Hall, 14 Pick. 
 217 ; Albright v. Teas, 10 Stew. Ch. 171. 
 
 2 For other illustrations see Hocker 
 V. Gentry, 3 Met. Ky. 463 ; Wentworth 
 V. Wentworth, 5 N. H. 410; Cabot u. 
 Haskins, 3 Pick. 83 ; Long v. Towl, 42 
 Misso. 545 ; Ehle v. Jndson, 24 Wend. 
 97; Crosby v. Wood, 2 Selden, 369; 
 Woods V. Schlater, 24 La. An. 284 ; 
 Strong V. Courtney, 6 Mod. 265. 
 
 8 Dodge V. Oatis, 27 Kan. 762 ; Sor- 
 rells V. McHenry, 38 Ark. 127 ; Montelins 
 V. Wood, 56 Iowa, 254 ; Powell v. Sa- 
 bers, 67 Ga. 448 ; Jeffries v. Lamb, 73 
 Ind. 202 ; Jones v. Hathaway, 77 Ind. 
 14 ; Stockmeyer v. Weidner, 32 La. An. 
 106; House v. Kendall, 55 Texas, 40; 
 Simpson Centenary College v. Bryan, 50 
 Iowa, 293 ; Snyder v. Kurtz, 61 Iowa, 593. 
 28 
 
 * Thompson v. Wheeler, &c. Manuf. 
 Co. 29 Kan. 476. On the like principle, 
 Lathrop v. Hickson, 67 Ga. 445. 
 
 6 Met. Con. 219 ; Add. Con. 7th Eng. 
 ed. 232; 2 Chit. Con. 11th Am. ed. 921 ; 
 Chapman v. Brooklyn, 40 N. Y. 372 ; 
 Foss w. Richardson, 15 Gray, 303 ; Darst 
 V. Brockway, 11 Ohio, 462; Spring v. 
 Coffin, 10 Mass. 31 ; Wharton v. O'Hara, 
 2 Nott & McC. 65 ; Pettibone v. Rob- 
 erts, 2 Root, 258 ; Steele v. Hobbs, 16 
 111. 59 ; Woodward v. Pels, 1 Bush, 162; 
 Griggs V. Morgan, 9 Allen, 37 ; Hotch- 
 kiss V. Judd, 12 Allen, 447 ; Leach v. 
 Tilton, 40 N. H. 473 ; Putnam v. West- 
 cott, 19 Johns. 73 ; Rice v. Peet, 15 
 Johns. 503 ; Smith v. McCluskey, 45 
 Barb. 610; French v. Millard, 2 Ohio 
 State, 44. 
 
 « Essery v. Cowlard, 26 Ch. D. 
 191. 
 
 ' Haigh V. Brooks, 10 A. & E. 309 ; 
 Pollard V. Lyman, 1 Day, 156; Foy v. 
 Haughton, 85 N. C. 168; Carson ti. 
 Kelley, 57 Texas, 379. 
 
CHAP, m.] THE CONSIDEBATION. § 74 
 
 failure of title will not lift from the buyer the obligation to 
 pay what he agreed.* And, where parties are mutually cog- 
 nizant of a doubt as to a title, if one of them, in exchange for 
 the other's promise to pay an agreed sum, executes to him a 
 release, the promise can be enforced though it is ascertained 
 that there was no title.^ A fortiori — 
 
 § 73. Matter Subsequent. — A subsequent depreciation in 
 the value of the thing, or its failure, does not constitute an 
 available failure of consideration.^ So it was where, during 
 slavery, persons bought* or hired ^ slaves, their promises to 
 pay were not rendered void by emancipation. And a note 
 given to the mother of a bastard child, in discharge of an 
 obligation for its support, remains good though the child 
 dies.^ Or if, after a patent is sold on credit, improvements 
 are made by which it becomes valueless, this is no defence to 
 a suit for the purchase-money.^ 
 
 § 74. Partial Failure of Consideration — Unlawful in Part. — 
 Where the consideration for an indivisible promise is in part 
 something done in violation of law ^ and in remainder some 
 lawful thing, the promise cannot find support on the lawful 
 part without resting also on the unlawful, and the whole will 
 be void.® But if there are two promises, the one founded on 
 the unobjectionable in the consideration and the other on the 
 evil, the former will be sustained and the latter will fail.*" 
 For example, a note given in settlement of an account con- 
 taining lawful charges and charges for liquor sold in violation 
 of a statute cannot be collected ; ^^ but, before the settlement, 
 the creditor might have separated the items, and enforced 
 
 1 Ellis V. Adderton, 88 N. C. 472. « Potter v. Earnest, 45 Ind. 416. 
 
 2 Kerr v. Lucas, 1 Allen, 279 ; Fay i'. ' Harmon v. Bird, 22 Wend. U3. 
 Richards, 21 Wend. 626. « Ante, § 57. 
 
 ' Smith V. Gower, 2 Duvall, 17 ; 9 McBratney v. Chandler, 22 Kan. 
 
 Perry v. Bnckman, 33 Vt. 7 ; Byrne v. 692 ; Tenney v. Foote, 95 111. 99 ; Bar- 
 
 Cummings, 41 Missis. 192 ; Gore v. Ma- ton w. Port Jackson, &c. Plank Koad, 
 
 son, 18 Maine, 84; Kerchner v. Gettys, 17 Barb. 397. 
 
 18 S. C. 521 ; Smock v. Pierson, 68 Ind. i" Bishop Stat. Crimes, § 1030. 
 
 405 ; Blackman v. Dowling, 63 Ala. ^^ Perkins v. Cummings, 2 Gray, 
 
 304; Daniel v. Tarver, 70 Ga. 203. 258; Covington v. Threadgill, 88 N. C. 
 
 * Dowdy V. McLellan, 52 Ga. 408. 186 ; Gotten v. McKenzie, 57 Missis. 
 
 5 Taylor u. Mayhew, 11 Heisk. 596; 418. 
 Topp f. White, 12 Heisk. 165. 
 
 29 
 
§ 75 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 payment for the lawful.^ Where there is a failure of a part 
 of a lawful consideration, the reasoning is different. The 
 part which failed was simply a nullity, it imparted no taint 
 to the residue. Hence, in such a case, no particular amount 
 of consideration being required,^ the promise may be enforced.^ 
 At the same time the defendant'may have suffered damages in 
 respect of the part of the consideration which failed, and so be 
 entitled to his cross-action against the plaintiff, or to recoup 
 the damages, or maintain a set-off, or rescind the whole con- 
 tract ; and, in the last case, return what of value he received, 
 and treat the consideration as having altogether failed. Often 
 there is an election of methods. All this could not be profit- 
 ably explained except to a reader familiar with the entire law 
 of contracts and with the proceedings in courts. It is deemed 
 best, therefore, not to pursue the subject further in this place ; 
 reserving the rest for other connections.* 
 
 § 75. Oral Proof of Consideration. — In principle, there is 
 a distinction between what the parties mutually undertake to 
 do, and the cause — or consideration — which moves them to 
 the undertaking. So, in practice, if they set down their 
 promises in writing, the terms expressing them are carefully 
 worded ; but the part which states the consideration as often 
 varies from the real truth as otherwise. Therefore the con- 
 sideration expressed in a written contract ought to be open 
 to inquiry by oral evidence. The better doctrine holds it 
 to be so.^ Such evidence in no degree modifies that to which 
 
 1 Chase t;. Barkholder, 6 Harris, Fa. held that he could maintain no action 
 48. on the agreement; because the father's 
 
 2 Ante, § 45. release did not bar the son's claim, and 
 ' Gotten I'. McKenzie, HI Missis. 418 ; it was impossible to discern what part of 
 
 Franklin v. Miller, 4 A. & E. 599, 605 ; the sum was due to the father. Green 
 
 Juchter ». Boehm, 63 Ga. 71 ; Case w. o. Perkins, 3 Lea, 491 . See also Torinns 
 
 Grim, 77 Ind. 565 ; Hodgdon v. Colder, v. Buckham, 29 Minn. 128. 
 75 Maine, 293, 295. Such is the gen- * For a citation of many cases on the 
 
 eral rule, and the cases supporting it are topic, and some helpful suggestions, see 
 
 innumerable. But where a father made 1 Pars. Con. 462-467 ; Met. Con. 216, 
 
 a compromise with a turnpike company, 219, 220. 
 
 releasing it from all liability for injuries ' FarnsworthB.Boardman, 131 Mass. 
 
 both to himself and to his minor son, 115 ; Holmes's Appeal, 29 Smith, Pa. 
 
 and receiving in return the company's 279; Wilkinson v. Scott, 17 Mass. 249, 
 
 promise to pay him a gross sum, it was 257; Kinzie v. Penrose, 2 Scam. 515; 
 30 
 
CHAP. HI.] 
 
 THE CONSIDERATION. 
 
 §T6 
 
 they give their mutual consent.^ This doctrine may on spe- 
 cial grounds require some partial exceptions in particular 
 cases,^ and thei'e are decisions more or less adverse.^ But by 
 what is deemed the just view, limited only in ways not affect- 
 ing the mass of cases, the reason of the rule which forbids oral 
 evidence to control a written instrument does not extend to 
 the consideration for a promise embodied in it, therefore the 
 rule itself does not.* 
 
 II. Where the Contract is wholly executory, as depending on 
 Mutual Promises. 
 
 § 76. What. — The only case of a contract wholly execu- 
 tory — that is, executory on both sides — is where there are — 
 
 Mutual Promises. — A promise of a thing of value is itself 
 valuable when made on a consideration ; so that, if two 
 persons simultaneously promise, each to the other, some valu- 
 
 Rockhill V. Spraggs, 9 Ind. 30 ; Jones «. 
 Jones, 12 Ind. 389 ; Lawton v. Bucking- 
 ham, 15 Iowa, 22; Emmons v. Little- 
 field, 13 Maine, 233; Kumler v. Fergu- 
 son, 7 Minn. 442 ; Morris Canal, &c. 
 Co. V. Ryerson, 3 Dutcher, 457 ; Wooden 
 V. Shotwell, 3 Zab. 465 ; Jack v. Dough- 
 erty, 3 Watts, 151 ; Curry v. Lyles, 2 
 Hill, S. C. 404 ; Holbrook v. Holbrook, 
 30 Vt. 432 ; Hannah v. Wadsworth, 1 
 Root, 458 ; Stravvbridge r. Cartledge, 7 
 Watts & S. 394 ; Brown v. Summers, 91 
 Ind. 151 ; Kennedy v. Goodman, 14 Neb. 
 585 ; Huebsch v. Scheel, 81 III. 281 ; 
 Bragg V. Stanford, 82 Ind. 234 ; Taylor 
 V. Wightman, 51 Iowa, 411 ; The State 
 V. Gott, 44 Md. 341 ; Altringer v. Cape- 
 heart, 68 Misso. 441. 
 
 » Stnfflebeem v. Arnold, 57 Cal. 11. 
 
 2 Post, § 275 ; McConnell v. Brayner, 
 63 Misso. 461 ; Connor v. Follansbee, 59 
 N. H. 124. 
 
 ' Murphy v. Mobile Branch Bank, 
 16 Ala. 90; Morse v. Shattuck, 4 N. H. 
 229 ; Schemerhorn v. Vanderheyden, 1 
 Johns. 139 ; Emery v. Chase, 5 Greenl. 
 232. Where the expression is, " for di- 
 vers other good considerations," the real 
 
 consideration may be shown. John- 
 son V. Boyles, 26 Ala. 576. " Value 
 received," Osgood v. Bringolf, 32 Iowa, 
 265. 
 
 * Ely V. Wolcott, 4 Allen, 506, 507 ; 
 Peacock v. Monk, 1 Ves. Sen. 127 ; Lla- 
 nelly Railway, &c. i: London, &c. Rail- 
 way, Law Rep. 7 H. L. 550, 556, 8 Ch. 
 Ap. 942 ; Gowaid v. Waters, 98 Mass. 
 596, 599; Kirkham v. Boston, 67 HI. 
 599 ; Coggeshall v. Coggeshall, 1 Strob. 
 43 ; Arms v. Ashley, 4 Piok. 71 ; Attix 
 V. Pelan, 5 Iowa, 336 ; Tingley v. Cut- 
 ler, 7 Conn. 291 ; Mouton v. Noble, 1 La. 
 An. 192 ; Cummings v. Dennett, 26 
 Maine, 397; Patchin v. Swift, 21 Vt. 
 292 ; Thompson v. Blanchard, 3 Comst. 
 335 ; Long v. Davis, 18 Ala. 801 ; Petti- 
 bone V. Roberts, 2 Root, 258 ; Smith v. 
 Brooks, 18 Ga. 440; Herrick v. Bean, 
 20 Maine, 51 ; Newton v. Jackson, 23 
 Ala. 335; Marsh v. Lisle, 34 Missis. 
 173 ; Warren v. Walker, 23 Maine, 453 ; 
 Haynes v. Rogillio, 20 La. An. 238; 
 Collier 1-. Mahan, 21 Ind. 110; Aurora 
 V. Cobb, 21 Ind. 492; Swope v. Forney, 
 17 Ind. 385; Burrill v. Saunders, 36 
 Maine. 409. 
 
 31 
 
§ 78 IN GENERAL WITH ILLUSTRATIONS, [BOOK I. 
 
 able thing, this constitutes a good contract. The promise of 
 the one is the consideration for that of the other .^ It is so 
 even though the promise of the one is oral while that of the 
 other is in writing ; ^ or of the one is express while the 
 other's is implied.^ And if parties mutually agree to post- 
 pone the time for the performance of a contract, this is effec- 
 tual, the promise of the one being a consideration for that 
 of the other.* But — 
 
 § 77. By one only. — A promise by one, with nothing in 
 return, is void ; ^ as, if he undertakes in writing to convey 
 land to another who neither agi'ees to buy nor pays anything 
 for the promise,® or to remain with and learn a trade of 
 another who does not agree to teach.' 
 
 § 78. Both bound or neither, — A common method of en- 
 tering into this contract is for one person to make an offer to 
 another ; then, if the latter accepts it, the contract becomes 
 thereby perfected.* And, unless both are bound, so that an 
 action could be maintained by either against the other for a 
 breach, neither will be bound.^ This proposition is absolutely 
 axiomatic, not admitting of being overthrown by authorities, 
 so long as the law requires something of value as a considera- 
 tion ; ^" for, where it is admitted that there is nothing for A's 
 promise to rest on but B's promise, if B has not promised 
 
 1 Funk V. Hough, 29 111. 145 ; ^ Dicken v. Morgan, 54 Iowa, 684. 
 
 Downey v. Hinchman, 25 Ind. 453 ; * Jones v. Binford, 74 Maine, 439. 
 Phillips V. Preston, 5 How. TJ. S. 278 ; * McNish v. Reynolds, 14 Norris, Pa. 
 
 Leach v. Keach, 7 Iowa, 232 ; Eippey v. 483. 
 
 Priede, 26 Misso. 523 ; Hartzell v. Saun- ^ Thome v. Deas, 4 Johns. 84. 
 
 ders, 49 Misso. 4.33 ; Coleman w. Eyre, * Bean v. Burbank, 16 Maine, 458; 
 
 45 N. Y. 38 ; Nunnally v. "White, 3 Met. Burnet v. Bisco, 4 Johns. 235 ; Mers v. 
 
 Ky. 584; Babcock v. Wilson, 17 Maine, Pranklin Ins. Co. 68 Misso. 127. 
 372 ; Whitehead v. Potter, 4 Ire. 257 ; ' Lees v. Whitcomb, 5 Bing. 34, 2 
 
 Appleton 1). Chase, 19 Maine, 74 ; Byrd Moore & P. 86, 3 Car. & P. 289. And 
 
 V. Pox, 8 Misso. 574 ; Congregational see Booth v. Fitzer, 82 Ind. 66. 
 Society u. Perry, 6 N. H. 164; George ^ Goodpasterti. Porter, 11 Iowa, 161 ; 
 
 V. Harris, 4 N. H. 533 ; Briggs v. Sizer, Thomason v. Dill, 30 Ala. 444 ; Boies 
 
 30 N. Y. 647 ; Forney v. Shipp, 4 Jones, v. Vincent, 24 Iowa, 387. 
 N. C. 527; Nott v. Johnson, 7 Ohio » Stiles v. McClellan, 6 Colo. 89; 
 
 State, 270 ; Abrams v. Suttles, Busbee, Townsend v. Fisher, 2 Hilton, 47 ; Ew- 
 
 99; Barringer v. Warden, 12 Cal. ins u. Gordon, 49 N. H. 444. And see 
 
 311; Missisquoi Bank I). Sabin, 48 Vt. Jenkins v. Williams, 16 Gray, 158; 
 
 239 ; Winberry v. Koonce, 83 N. 0. post, § 318. 
 351. 10 Ante, §41,45. 
 
 32 
 
CHAP. III.] THE CONSIDERATION. § 80 
 
 A's promise rests on nothing, and is. void. There may be cases 
 in seeming contradiction to this ; if there are any really so, 
 they are not to be followed. In one case, (parties agreed that 
 one of them should supply the other during a designated 
 period with certain stores, as the latter might order. He 
 made an order, which was filled ; then made another, which 
 was declined ; and on suit brought the defendant rested his 
 case on the lack of mutuality in the contract, which, he con- 
 tended, rendered it void. Plainly it stood, in law, as a mere 
 continuing offer by the defendant; but, when the plaintiff 
 made an order, he thereby accepted the offer to the extent of 
 the order, and it was too late for the other to recede. So 
 judgment went for the plaintiff; Brett, J., observing, that 
 this case " does not decide the -question whether the defend- 
 ant might have absolved himself frojoi the further performance 
 of the contract by giving notiee."iiJ So, in the proper place, 
 we shall see that a contract by mutual promises, between 
 an adult and a minor, is binding on the adult ; but that is 
 because the minor's promise is only voidable, and his right to 
 recede is a personal privilege. 
 
 § 79. Simultaneous. — If the promise of each is made at a 
 different time from that of the other, though on the same day, 
 and the two are not connected, both are void. In form or effect 
 they must be simultaneous.^ Still, as we have just seen, along 
 time may in mere form intervene between the promises ; as, 
 where a standing offer is made by the one party, then months 
 afterward it is accepted by the other. Here, in legal effect, 
 the promises became simultaneous on the latter day. 
 
 III. Where the Contract is wholly executed. 
 
 § 80. In General. — One's first impression of a dontract 
 fully executed on both sides is, that it is ended, and no ques- 
 tions concerning it remain. But, on reflection, we see that 
 the rights, relations, and responsibilities of the parties are 
 
 1 Great Northern Eailway v. With- 583; Keep v. Goodrich, 12 Johns. 397; 
 anj, Law Eep. 9 C. P. 16, 20. Tucker v. Woods, 12 Johns. 190 ; James 
 
 2 Livingston v. Rogers, 1 Caines, v. Fulcrod, 5 Texas, 512. 
 
 3 33 
 
§ 83 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 changed, in degrees and ways differing with the varying cir- 
 cumstances. For example, property has been acquired or 
 lost, a new executory contract has been created by the law, 
 creditors have been invested with new rights, the status of 
 the parties is altered, or something else has been done or 
 suffered ; so that, though the contract is in a sense ended, in 
 another and most important sense it remains. The particular 
 explanations will in the main be given in other connections, 
 but something should be added in this place. 
 
 § 81. "Without Consideration. — Though a contract is with- 
 out consideration, yet, if it is voluntarily and with full knowl- 
 edge of the facts executed, the property in the thing, whether 
 money or a chattel, is transferred, and it cannot be reclaimed.^ 
 So that a consideration is not an essential part of an exe- 
 cuted contract ; ^ yet, where the claims of creditors intervene, 
 the want of it may, as to them, be important.^ A common 
 illustration is a — 
 
 § 82. Gift — (Delivery). — A mere promise of a thing to 
 one is void for want of consideration, and words of present 
 gift are only a promise.* But when the promise is executed 
 by the delivery of the thing, the imperfection in the contract 
 of gift is cured, and the thing cannot be reclaimed.^ And, — 
 
 § 83. Under Seal without Delivery. — As delivery is not 
 essential to a sale of personal property where no rights 
 of third persons are concerned;^ so it is not to a gift, 
 
 1 Matthews !'. Smith, 67 N. C. 374; Scott, 877; Bourne v. Fosbrooke, 18 
 Newell V. March, 8 Ire. 441 ; Hubbard C. B. n. s. 515, U Jur. N. s. 202. 
 
 V. Hickman, 4 Bush, 204. 5 Faxon v. Durant, 9 Met. 339 ; 
 
 2 Maxwell v. Graves, 59 Iowa, 613. Camp's Appeal, 36 Conn. 88 ; Succes- 
 
 3 lies V. Cox, 83 Ind. 577 ; Tuttle sion of De Pouilly, 22 La. An. 97 ; 
 V. Turner, 28 Texas, 759; Kerrigan Rockwood v. Wiggin, 16 Gray, 402; 
 V. Rautigan, 43 Conn. 17; Cothran v. Gardner ii. Merritt, 32 Md. 78; Ellis v. 
 Forsyth, 68 Ga. 560. Secor, 31 Mich. 185; Smith v. Smith, 
 
 * Brewer v. Harvy, 72 N. C. 176; 7 Car. & P. 401 ; Bond «. Bunting, 28 
 
 Irons V. Smallpiece, 2 B. & Aid. 551 ; Smith, Pa. 210 ; Marsh v. Fuller, 18 
 
 Madison v. Shockley, 41 Iowa, 451 ; N. H. 360; Hillebrant v. Brewer, 6 
 
 Morse v. Low, 44 Vt. 561 ; Pearson v. Texas, 45 ; Little v. Willets, 55 Barb. 
 
 Pearson, 7 Johns. 26 ; Phelps v. Pond, 125,37 How. Pr. 481 ; Payne v. Powell, 
 
 23 N. Y. 69 ; Thompson v. Dorsey, 4 Md. 5 Bush, 248. 
 
 Ch. 149 ; Johnson v. Stevens, 22 La. An. « McCoy v. Moss, 5 Port. 88 ; Visher 
 
 144 ; Spencer v. Vance, 57 Misso. 427 ; ». Webster, 13 Cal. 58 ; Sidwell v- Lobly, 
 
 Reeves i;. Capper, 5 Bing. N. C. 136, 6 27 111. 438; IngersoU v. Kendall, 13 Sm. 
 34 
 
CHAP. III.] THE CONSIDERATION. § 87 
 
 if made by a writing under seal, which imports a consid- 
 eration.^ 
 
 § 84. Other Illustrations — might be added, but these will 
 make sufiSciently plain the main doctrine of the sub-title ; 
 namely, that no consideration is necessary in an executed 
 contract. 
 
 IV. Where the Contract is executed in part. 
 
 § 85. Ne-w Consideration. — If a contract, imperfect for 
 want of consideration^ is in part executed, — then, if the con- 
 tract is renewed on sufficient consideration, — the past as 
 well as the future is thereby made secure.^ Thus, — 
 
 § 86. Past and Future Support. — An undertaking to pay 
 for the support of a child, both past and future, in considera- 
 tion of a promise to continue the child's nurture, is binding 
 as to board already furnished equally as to future board.* 
 Again, — 
 
 § 87. Validated by Part Execution. — A contract is often 
 such that, until something is done under it, the consideration 
 is imperfect, yet a partial performance, or complete perform- 
 ance on one side, supplies the defect.* If, for example, one 
 promises another, who makes no promise in return, to pay him 
 money when he shall have done a specified thing, if he does 
 it, not only is the contract executed on one side, but also the 
 consideration is perfected, and payment can be enforced.* 
 And, in more general terms, when for any cause the party 
 from whom the consideration moves is not compellable to 
 render it, if he does render it, the contract becomes thereby 
 perfected.® On this principle, one's voluntary promissory 
 
 & M. 61 1 ; Burt i-. Dutcher, 34 N. Y. 493 ; * Met. Con. 201 ; Loomis v. Newhall, 
 
 Hooban v. Bidwell, 16 Ohio, 509; Lud- 15 Pick. 159 ; Andrews v. Ives, 3 Conn, 
 
 wig B. Fuller, 17 Me. 162; post, § 1309. 368. 
 
 1 McCutchen v. McCutchen, 9 Port. ' Wiggins v. Keizer, 6 Ind. 252. 
 
 650 ; Irons v. Smallpiece, 2 B. & Aid. * See, for a helpful illustration, ante, 
 
 551, 552; Horn v. Gartman, 1 Fla. 63; § 78. 
 
 Hannon o. The State, 9 Gill, 440. See ^ Andreas v. Holcombe, 22 Minn. 
 
 Butler V. Soofield, 4 J. J. Mar. 139 ; 339 ; Miller v. McKenzie, 95 N. Y. 
 
 Gordon ». Wilson, 4 Jones, N. C. 64 ; 575. 
 
 McEwen v. Troost, I Sneed, Tenn. 186 ; « Storm v. United Sfates, 94 U. S. 76. 
 
 Abbot V. Williams, 2 Brev. 38. Guilford Methodist Ep. Par. v. Clarke, 
 
 35 
 
§ 90 IN GENERAL WITH IIlLUSTRATIONS. [BOOK I. 
 
 notev given to aid in ^^^ construetion of a railroad, is, when 
 the road is built and in operation, no longer voluntary, but 
 on a valuable consideration.^ 
 
 V. Where the Consideration in executed. 
 
 § 88. Connection of Consideration and Promise. — For the 
 consideration and promise to depend each on the other, so as 
 together to constitute a contract, there must obviously be the 
 proper connection between them. If, in the cases just stated, 
 the thing done to complete the consideration were some act 
 having no relation to the promise, it would have no effect ; 
 so, on the other hand, if the promise lacks the proper relation 
 to the consideration, there will be no contract. Thus, — 
 
 § 89. Gift not a Consideration. — One who has made a gift 
 of a thing to another cannot go back on his own act and com- 
 pel payment.^ Therefore what has been given, or otherwise 
 voluntarily paid, or transferred, with full knowledge of the 
 facts, without expectation of anything in return, as already 
 explained,^ or with no legal liability assumed at the time on 
 the other side, can be no consideration for a fresh promise.* 
 Hence, — 
 
 § 90. Past Consideration. — It has become established, as 
 general doctrine, requiring such qualifications as its reasons 
 indicate, that a past and executed consideration will not sus- 
 tain a promise.^ For example, it is a debtor's duty to pay his 
 debt promptly on its becoming due, so that forbearance by 
 the creditor is a consideration for an agreement between the 
 parties.® But after the day of payment has gone by, and the 
 creditor has forborne, this thing of the past is no considera- 
 tion for a fresh promise.'^ And where those necessaries which 
 
 74 Maine, llOj Birdsall v. Birdsall, 52 6 Ante, §79; Mills _i>. Wyman, 3 
 
 Wis. 208. Pick. 207 ; LoQmis v. Ne'whall, 15 Pick. 
 
 1 Wright V. Irwin, 35 Mich. 347; 159; Barlow u. Smith, 4 Vt. 139; Com- 
 Stevens v. Corbitt, 33 Mich. 458. stock v. Smith, 7 Johns. 87 ; Tomliuson 
 
 2 University v. McNair, 2 Ire. Eq. 605. v. Smith, 2 Iowa, 39 ; Snow v. Hix, 54 
 » Ante, § 52, 56-58, 70, 72, 82. Vt. 478. 
 
 * Watson V. Dnnlap, 2 Cranch C. C. "Ante, § 63. 
 
 14; Bulkley m. Landon, 2 Conn. 404; 7 Sliealy u. Toole, 56 Ga. 210. And 
 
 Eastwood V. Kenyon; 11 A. & E. 438. see Young v. Hill, 67 N. Y. 162. 
 
 36 
 
CHAP, ni.] THE CONSIDERATION. §93 
 
 ordinary paternal duty requires a father to supply have been 
 sold to a minor son solely on the credit of the latter, it now 
 becomes impossible for the father, by a mere promise, to bind 
 himself to the seller to pay fpr them.^ B^, — 
 
 § 91. At Request. — If the thing done' was at the request 
 of the promisor, it will sustain the promise ; ^ because, as the 
 reader perceives, though the request, the doing, and the prom- 
 ise may have been on different days, or even in different years, 
 the whole thus becomes one transaction. And, — 
 
 § 92. Implied Request. — Where the evidence or circum- 
 stances do: not clearly show that the executed consideration 
 was a gratuity, or was something else which cast no legal ob- 
 ligation on the promisor, and out of which the law created no 
 promise, the jury under direction of the court may infer, as of 
 fact or of law, a previous request, to satisfy the justice of the 
 particular case.^; Of course^ — > 
 
 § 93. Previous Obligation. — If, under the circumstances, the 
 law had created a promise wifen the cona^eration passe^,* — 
 as, if a b|^nefit had been conferred on the promisor and ac^ 
 cepted, with no evidence of its being a gratuity,^ — or, if the 
 promise is made in discharge of any subsistingiegal oblig^on, 
 however it m^ have originated in some dcktv transacti&n,® — 
 
 1 Freeman v. Bobinson, 9 Vroom, Reeve, 8 Q. B. 483) ; Allen v. Davison, 
 383. See also Bestor 6. Boberts, 58 Ala. 16 Ind. 416; Maurer v. Mitchell, 9 
 331. Watts & S. 69 ; Spaulding v. Crawford, 
 
 2 Hunt V. Bate, 3 Dy. 272 a ; Lamp- 27 Texas, 155 ; Cook v. Bradley, 7 Conn, 
 leigh V Brathwait, Hob. 10.5 ; Carson 57; Bailey v. Bussing, 29 Conn. 1 ; 
 V. Clark, 1 Scam. 113; Comstock v. Merrick v. Bank of the Metropolis, 8 
 Smith, 7 Johns. 87; Allen «. Wood- Gill, 59; Swift u. Crocker, 21 Pick. 241 ; 
 ward, 2 Fost N. H. 544; Alcinbrook v. Warner u. Booge, 15 Johns. 233; Bel- 
 Hall, 2 Wils. 309 ; Tappin v. Broster, I fast v. Leominster, 1 Pick. 123, 127. In 
 Car. & P. 112. Beaumont v. Reeve, supra. Lord Den- 
 
 ? Oatfield V. Waring, V4 Johns. 188 ; man, C. J., at p. 487, said : ''An express 
 
 Hicks V. Bnrhans, 10 Johns. 243; Wil- promise cannot be supported: by a con^ 
 
 son V. Edmonds, 4 Fost. N. H. 517; sideration from which the law could not 
 
 Doty ti. Wilson, 14 Johns. 378. imply a promise, except where the ex- 
 
 * Exall V. Partridge, 8 T. R. 308. press promise does away with a legal 
 
 * Post, §210; Seymour t). Marlboro, suspension or bar of a right of action 
 40 Vt. 171 ; Kenan v. HoUoway, 16 Ala. which.but for such suspension or bar, 
 53. would be valid;" adding: "This result 
 
 » Beadle v. Whitlock, 64 Barb. 287 ; we arrived at, after much deliberation, 
 Jennings v. Brown, 12 Law J. n. s. Ex. and we now adhere to it." See Runna- 
 86 (which compare with Beaumont V. maker u. Cordray, 54 111. 303. 
 
 37 
 
95 
 
 IN GENERAL WITH ILLUSTRATIONS, 
 
 [book I. 
 
 the consideration will require no previous request to make it 
 adequate ; though, in mere form of technical pleading, such 
 an allegation may be necessary.^ 
 
 VI. The Waiver of Imperfections in the Consideration. 
 
 § 94. Waiving Legal Rights in General. — The doctrine is 
 familiar, that no man is compellable to stand on a right which 
 the law gives him. He can always waive it, if he chooses. 
 And the rule applies equally to a right conferred by the 
 common law, by a statute, and by a written constitution." 
 Therefore, — 
 
 § 95. Bar of Statute of Limitations. — If the right to sue 
 upon a violated contract is barred by the Statute of Limita- 
 tions, the delinquent may waive this defence.^ One method 
 of waiver is to neglect to plead the statute when sued.* But 
 the common method, which is sufficient, is by an express 
 promise to pay, or by such an acknowledgment of present 
 indebtedness as implies a promise." On this principle, it is no 
 defence to an agreement to pay the note of a third person, that 
 the Statute of Limitations has fully run against the note,^ A 
 conditional promise will suffice ; but, in this case, the debt 
 
 ' Met. Con. 193 et seq. 
 
 2 1 Bishop Crim. Law, § 995-1007 ; 
 I Bishop Crim. Procei. I. § 117-126. 
 
 ' The doctrine is not always put on 
 these reasons. Ante, § 12. But the 
 views in the text accord, if not with the 
 language of the modern decisions, with 
 the decisions themselves. The old no- 
 tion, that the lapse of the statutory pe- 
 riod creates a presumption of payment, 
 consequently that payment will be en- 
 forced whenever this presumption is 
 rebutted by the evidence, is exploded. 
 A late English writer, speaking of these 
 and the other like cases, says : " The 
 efficacy of such promises is now referred 
 to the principle that a person may re- 
 nounce the benefit of a law made for his 
 own protection." Leake Con. 317. And 
 he cites Earle v. Oliver, 2 Exch. 71, 90; 
 
 38 
 
 Flight V. Reed, 1 H. & C. 703, 713, 
 716; note to Wennall v. Adney, 3 
 B. & P. 247, 249. Among American 
 decisions, see Shepard t'. Rhodes, 7 R. I. 
 470. See post, § 1350-1367. 
 
 * 1 Saund. Wms. ed. 283, notes ; 2 
 lb. 63 a, note. 
 
 ' Chasemore v. Turner, Law Rep. 10 
 Q. B. 500, 14 Eng. Rep. 304, and Moak's 
 note at p. 326 ; Johns v. Lantz, 13 Smith, 
 Pa. 324; Georgia Ins. Co. v. Ellicott, 
 Taney, 130; Chambers v. Rubey, 47 
 Misso. 99 ; Simonton ». Clark, 65 N. 0. 
 525; Harper v. Fairley, 53 N. Y. 442; 
 Tanner v. Smart, 6 B. & C. 603 ; Norton 
 V. Colby, 52 111. 198. See Shapley w. 
 Abbott, 42 N. Y. 443; Beardsley v. 
 Hall, 36 Conn. 270. 
 
 ° Amonett v. Montague, 75 Misso. 
 43. 
 
CHAP, III,] THE CONSIDERATION. § 97 
 
 can be recovered only on the plaintiff's showing that the con- 
 dition has been fulfilled.^ Again, — 
 
 § 96. Bankruptcy, &c. — If a debt is discharged under 
 banKruptcy or insolvency laws, the debtor, by a promise to 
 pay it, waives the benefit of those laws, and payment may be 
 compelled.2 The old consideration sustains the debt;^ and 
 the better reasoning conducting to this result is, that no con- 
 sideration is required to make valid a promise to waive a 
 privilege which the law has tendered. But the promise 
 must be distinct and unequivocal ; * yet the message, " tell him 
 
 1 intend to pay him," has been adjudged sufficient." Like the 
 promise under the Statute of Limitations, it may be condi- 
 tional.^ While the old liability remains, — that is, before the 
 bankrupt's discharge, — the law's tender to him of protection 
 from suit not having been made, his waiver, it has been held, 
 is premature ; the fresh promise, to be binding, must be given 
 after the discharge.^ One's mere promise to pay another's 
 debt barred in bankruptcy, even his father's, cannot be en- 
 forced.8 Once more, — 
 
 § 97. Indorser — Demand and Notice. — An indorser of a 
 note or bill, who is released from liability by the holder's 
 neglecting demand and notice, may waive this advantage. 
 And he does waive it if he promises payment with full knowl- 
 edge of the facts.^ In short, — 
 
 1 MeyerhofE v. Froehlich, 3 C. P. D. ers, &c. v. Flint, 17 Vt. 508; KuU v. 
 
 333, 4 C. P. D. 63 ; post, § 1364. Farmer, 78 N. C. 339. 
 
 * Penn v. Bennet, 4 Camp. 205; s Second Nat. Bank v. Wood, 59 
 
 Trueman v. Fenton, Cowp. .544 ; Rob- N. H. 407. 
 
 erts V. Morgan, 2 Esp. 736 ; Lang v. * McDougall v. Page, 55 Vt. 187. 
 
 Mackenzie, 4 Car. & P. 463 ; Williams v. * Hubbard v. Farrell, 87 Ind. 215. 
 
 Dyde, Peake, 68 ; Besford v. Saunders, « Lanier v. ToUeson, 20 S. C. 57. 
 
 2 H. Bl. 116; Fleming v. Hayne, 1 ' Ogden ». Redd, 13 Bush, .S81. 
 Stark. 370; Lerow v. Wilmarth, 7 Al- 8 McElven v. Sloan, 56 Ga. 208. 
 len, 463 ; Williams v. Bugbee, 6 Cush. ' Sigerson v. Mathews, 20 How. TJ. S. 
 418; Fitzgerald u. Alexander, 19 Wend. 496; Thornton v. Wynn, 12 Wheat. 
 402; Kenyon i>. Worsley, 2 R. 1.341; 183; Ladd v. Kenney, 2 N. H. 340; 
 Baltimore, &c. Railroad v. Clark, 19 Arnold w. Dresser, 8 Allen, 435; Low w. 
 Md. 509; Smith v. Richmond, 19 Cal. Howard, 10 Cush. 159; First National 
 476; Earnest v. Parke, 4 Rawle, 452; Bank w. Crittenden, 2 Thomp.& C. 118; 
 Sconton v. Eislord, 7 Johns. 36; Tur- Bogart v. McClung, H Heisk. 105, 
 ner n. Chrisman, 20 Ohio, 332; Farm- 119. 
 
 39 
 
§ 101 IN GENERAL WITH ILLUSTRATIONS. [BOOK T. 
 
 § 98. Any Bar tendered by the Law — may be waived by a 
 promise of payment.^ But, — 
 
 § 99. Release by Party. — If the party, claiming under a 
 contract, or to whom a debt is due, voluntarily, for a sufficient 
 consideration, or under seal with no consideration in fact, re- 
 leases his claim, the obligation thus released will not support 
 a fresh promise of payment, nor is it in any way revived 
 thereby.^ And this rule extends to all things resting on the 
 agreement of the parties.^ In this class of cases, unlike the 
 others, the law has not tendered to the party an advantage, 
 which he may therefore waive ; but, by the act of the parties, 
 the contract or debt has ceased to exist. There is nothing to 
 waive.* 
 
 § 100. Contrary Opinions. — Contrary to this view, there 
 are some cases,^ not very recent, whicb put a release under 
 seal, where no actual consideration for it passes, on the same 
 ground as a discharge in bankruptcy ; holding, as to both, 
 that the new promise revives the debt, not as a waiver of a 
 legal right, but on the now exploded doctrine of a moral 
 obligation.^ 
 
 § 101. The Doctrine of this Chapter restated. 
 
 In morals, one who by a promise creates an expectation is 
 required to make the expectation good.'' And, if we look 
 into the reason, we find the case not essentially different from 
 a class of legal ones in which there is deemed to be a consid- 
 eration.^ The promise was a gift, which indeed the promisor 
 was under no duty to make; but, having made it, he has 
 
 1 Stebbins v. Crawford, 11 Norris, S •Willing v. Peters, 12 S. & R. 177 
 Pa. 289 ; Anspach v. Brown, 7 Watts, (perhaps overruled by Snevily ». Read, 
 139- 9 Watts, 396) ; Stafford v. Bacon, 25 
 
 2 Hale u. Rice, 124 Mass. 292. Wend. 384. 
 
 ' Dnnbara v. JolinsDn, 13.5 Mass. 6 Ante, § 44 ; Stebbins ». Crawford, 
 
 310; Davis i!. German Am. Ins. Co. 1 1 Norris,> Pa. 289 ; Edwards w. Nelson, 
 
 135 Mass. 251. 51 Mich. 121 ; McElven t>. Sloan, 56 Ga. 
 
 * Valentine v. Poster, 1 ' Met. 520 ; 208. 
 
 Montgbmery w. Larapton, 3 Met. Ky. ' Ante, § 39 ; Paley Moral Phil. b. 3, 
 
 619; Warren K. Whitney, 24 MainC) pt. 1, c. 5. 
 
 561 ; Snevily v. Read, 9 Watts, 396. s As, for example,ante, §42,52,64,65. 
 40 
 
CHAP. III.] THE CONSIDERATION. § 102 
 
 morallj no more right to reclaim it than to take back any 
 other delivered gift.^ If he does reclaim it, he inflicts a 
 mental wrong, and often a pecuniary one also. The promisee 
 may have so acted on the promise that the withdrawal of it 
 will be his ruin.^ Still, as the law of the land cannot redress 
 all wrongs, it is doubtless wise in requiring a pecuniary con- 
 sideration for the promises it consents to enforce. Anything, 
 however small, which the law esteems of value, is an adequate 
 consideration ; but a thing without legal value is not.^ Thus 
 it is with executory contracts, being those which the law en- 
 forces. But an executed contract, which the parties have vol- 
 untarily carried out, requires, for its collateral and resulting 
 consequences, no consideration. 
 
 § 102. The rest of the dhapter consists of applying these 
 propositions to the various questions which arise in prac- 
 tice. The following is a convenient way to test the exec- 
 utory contract. Assume that the law, when called upon to 
 enforce this contract, requires value for value ; also that, ex- 
 cept where it has ordained the values of things, as of money, 
 fees, and the like, the parties in making their contract may 
 place their own values upon them, with the single limitation 
 that they must be things to which it accords some value. 
 This formula is somewhat technical, but it may be reasoned 
 upon in methods not technical, after the ordinary reasoning 
 of mankind.* And, when the result of the reasoning discloses 
 a quid pro quo, the contract is to be pronounced good, other- 
 wise when none is thus shown. 
 
 1 Ante, § 82, 89. » Ante, § 4T, 45. - 
 
 2 Ante, § 39. * Ante, § 9, 12, 14, 15. 
 
 41 
 
§ 105 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 CHAPTER IV. 
 
 CONTRACTS UNDEK SEAL. 
 
 § 103. Introduction. 
 
 104-118. In General. 
 
 119-127. The Consideration. 
 
 128-138. High Nature and Consequences. 
 
 139. Doctrine of Chapter restated. 
 
 § 103. How Chapter divided. — We shall consider these 
 coutracts as to ; ' I. In General ; II. The Consideration ; 
 III. Their High Nature and its Consequences. 
 
 I. In General. 
 
 § 104. Meanings. — The principal terms denoting contracts 
 under seal are — 
 
 Specialty. — Any contract under seal is a specialty,' or 
 special contract, in distinction from a simple or parol one.* 
 The meaning of the word ^ is of late sometimes extended to 
 include judgments;^ but there is no exigency in the language 
 requiring it, and the correctness of the extended meaning 
 has well been denied.* 
 
 § 105. Deed. — In the strict sense, the word " deed " is sub- 
 stantially the equivalent of specialty.^ It signifies, says Coke, 
 " an instrument consisting of three things, namely, writing, 
 sealing, and delivery ; comprehending a bargain or contract 
 
 1 2 BI. Com. 464, 465, and Chitty's 2 Ante, § 25. 
 
 notes ; Benson v. Benson, 1 P. Wms. ' Seymour v. Street, supra. 
 
 130, 131 ; Marriott v. Thompson, Willes, * Kimball v. Whitney, 15 Ind. 280. 
 
 186, 189 ; Laidley i». Bright, 1 7 W. Va. * 2 Bl. Com. ut sup. ; Benson v. Ben- 
 
 779; Seymour v. Street,. 5 Neb. 85; son, 1 P. Wms. 130,131; Reg. w. Mor- 
 
 Bank of United States v. Donnally, 8 ton. Law Rep. 2 C. C. 22; Master v. 
 
 Pet. 361,371. Miller, 4 T. E. 320, 345. 
 42 
 
CHAP. IV.] 
 
 CONTRACTS UNDER SEAL. 
 
 §109 
 
 between party and party, man or woman." ^ But its actual 
 use is oftener limited to a sealed conveyance of real estate, 
 either absolute ^ or in mortgage.^ A deed from one to another, 
 who does not join in it, is called a deed-poll.* An — 
 
 § 106. Indenture — is a deed in which two or more persons 
 join in mutual covenants.^ The term — 
 
 § 107. Covenant — ordinarily denotes a sealed instrument;* 
 or, more frequently, a particular promise under seal, as when 
 we speak of the " covenants in a deed." ^ And so a promise 
 under seal to pay rent is a covenant.^ But this word does 
 not in every connection, or so certainly as the words just 
 mentioned, imply a seal.' A — 
 
 § 108. Bond — is an instrument under seal whereby one 
 acknowledges himself indebted to another in a specified sum, 
 generally but not necessarily conditioned for the performance 
 of some act.^" 
 
 § 109. Obligation — Writing Obligatory. — Each of these 
 terms commonly implies a seal ; ^^ but it does not always, or 
 
 1 Co. Lit. 171 i; 2 Bishop Crim. 
 Law, § 567. 
 
 2 Wood V. Owings, 1 Cranch, 239 ; 
 Van Eps v. Schenectady, 12 Johns. 
 436 ; Ketchum v. Bvertson, 13 Johns. 
 3.59, 363 ; Parker v. McAllister, 14 Ind. 
 12. 
 
 ' Bishop Stat. Crimes, § 340 ; People 
 V. Caton, 25 Mich. 388 ; Herron v. Her- 
 ron, 91 Ind. 278. 
 
 * 2 Bl. Coni. 296. 
 
 » 2 BI. Com. 295, 296 ; Van Sant- 
 wood V. Sandford, 12 Johns. 197 ; Hope- 
 well V. Amwell, 1 Halst. 169; Engle- 
 flelrt's Case, 4 Leon. 169, 175 ; Cabell v. 
 Vaughan, 1 Sannd. Wras. ed. 291, note 
 1. These authorities appear distinct to 
 the proposition that this word necessa- 
 rily implies a seal. But see, contra, 
 Magee v. Fisher, 8 Ala. 320. 
 
 * Toml. Law Diet. Covenant; Mc- 
 Voy V. Wheeler, 6 Port. 201 ; Davis v. 
 Jadd, 6 Wis. 85 ; Bobbins «. Ayres, 10 
 Misso. 538 ; Benson v. Benson, 1 P. 
 Wms. 130, 131. 
 
 ' Leake Con. 143. 
 
 8 Greenleaf v. Allen, 127 Mass. 248. 
 
 9 1 Saund. Wms. ed. 291, note; Van 
 Santwood v. Sandford, 12 Johns. 197; 
 Hayne v. Cummings, 16 C. B. ir. 8. 
 421 ; Hays v. Lasater, 3 Pike, 565. See 
 Graves v. Smedes, 7 Dana, 344. 
 
 w Wood V. Willis, 110 Mass. 454; 
 Bouv. Law Diet. Bond ; United States 
 V. Linn, 15 Pet. 290, 311. See People 
 V. Mead, 24 N. Y. 114. "A bond con- 
 taining such acknowledgment simply is 
 called a single bond ; but there may be 
 appended to it a condition that upon 
 ttie performance of a certain act the 
 bond is to be void, otherwise to remain 
 in full force, and it is then called a bond 
 with a condition." Leake Con. 143, 144. 
 It is believed that, by the better opinion, 
 the word necessarily imports a seal, but 
 there are cases to the contrary. For a 
 collection of authorities, see Abbott Law 
 Diet. Bond. 
 
 11 Toml. Law Diet. Bond ; Cantey v. 
 Duren, Harper, 434 ; Taylor v. Glaser, 
 2 S. & R. 502 ; Denton v. Adams, 6 
 Vt. 40; Deming v. Bullitt, 1 Blackf. 
 241; Skinner v. McCarty, 2 Port. 19; 
 Harman v. Harman, Bald. 129; Harden 
 
 43 
 
§ 111 IN GENERAL WITH ILLU8TEATI0NS. [BOOK I. 
 
 by all opinions.^ In various connections, the word " obliga- 
 tion " does not even import a writing ; as, where we say one 
 is under obligation to do a thing. 
 
 §110. Specialty defined. — A contract under seal, or spe- 
 cialty, is an undertaking in writing, made solemn by the seal 
 of the party. It must be, not on wood,^ or, adds Coke, on 
 "leather^ clotk, or the like, but only upon parchment or 
 paper; for," he continues, "the writing upon them can be 
 least vitiated, altered, or corrupted." ^ 
 
 § 111. What the Seal. — ■ The seal is an impression on any 
 impressible substance adhering to the paper. It was wax 
 in early times; but a wafer is as good, and so is any other 
 tenacious material on which an impression is made.* Or, by 
 what is believed to be the better opinion, it may be embossed 
 on the paper itself.® By statutes or judicial decisions in a 
 part of our States, not all, even a scroll formed with the pen, 
 or the word " seal," written or printed, if employed as a seal, 
 is adequate.* But the existence on an instrument of a seal, if 
 not meant for such, does not make it a specialty ; ^ nor can 
 there be a specialty without some sort of seal.* Yet a court 
 with equity powers may treat as sealed a writing executed as 
 such by the parties, where it is plain the omission of the seal 
 was by mistake.^ And where a statute calls for a sealed 
 
 V. Webster, 29 Ga. 427 ; Clark v. Phil- 322 ; Cromwell «. Tate, 7 Leigh, 301 ; 
 
 lips, Hemp. 294. 4 Kent Com. 453; Gourand v, VoUmer, 
 
 1 Stone V. Bradbury, 14 Maine, 185; 31 Texas, 397 ; NorvcU ». Walker, 9 W. 
 Hargroves». Cooke, 15 Ga. 321. Va. 447; Lewis v. Overby, 28 Grat. 
 
 2 Pollock Con. 129 ; Smith Con. 2d 627 ; Burton v. Le Roy, 5 Saw. 510 ; 
 Eng. ed. 5. Green v. Lake, 2 Mackey, 162. 
 
 ' Co. Lit. 35 i. ' Clement u. Gunhonse,. 5 Esp. 83; 
 
 * Tasker v. Bartlett, 5 Cush. 359; Add. Con. 7th Eng. ed. 20; Blaekwell 
 Warren v. Lynch, 5 Johns. 239 ; Beards- v. Hamilton, 47 Ala. 470. 
 
 ley V. Knight, 4 Vt. 471 ; Gillespie v. * The State v. Thompson, 49 Misso. 
 
 Brooks, 2 Redf. 349 ; Richard v. Boiler, 188 ; Vance v. Funk, 2 Scam. 263; Chil- 
 
 6 Daly, 460; Hendrix w.Boggs, 15 Neb. ton w. People, 66 111. 501 ; The State v. 
 
 469. Humbird, 54 Md. 327. 
 
 5 Pierce v. Indseth, 106 U. S. 546, ^ Rutland v. Paige, 24 Vt. 181 ; Mc- 
 
 549. Contra, Coit v. MUlikin, I Denio, Carley v. Tippah Supervisors, 58 Missis, 
 
 376 ; Bank of Rochester v. Gray, 2 Hill, 483 ; Wadsworth v. Wendell, 5 Johns. 
 
 N. Y. 227; Farmers & Manuf. Bank i>. Oh. 224. See 'Brinkley v. Bethel, 9 
 
 Haight, 3 Hill, N. Y. 493. Heisk. 786 ; Arnold ». Nye, 23 Mich. 
 
 * Underwood o. DoUins, 47 Misso. 286. "It has been settled, upon fun- 
 259; Groner v. Smith, 49 Misso. 318, damental principles of, equity juiis- 
 
 44 
 
CHAP. IV.] 
 
 CONTRACTS UNDER SEAL. 
 
 §114 
 
 instrument, then requires it to be judicially approved, the 
 approval, followed by acting under it, estops inquiry, and the 
 objection is then too late.^ There should properly be a sepa- 
 rate seal for every signature ; yet in strict law one seal, or 
 scroll where it constitutes a seal, will answer for any number 
 of signers, if each adopts it as his own.^ 
 
 § 112. Signing. — One executing a specialty commonly 
 signs it, the same as an instrument not sealed. But the sign- 
 ing was early held not to be necessary, where the party puts 
 upon the parchment his seal ; for the seal creates the deed.^ 
 There is probably no modern authority contrary to this early 
 doctrine, which seems still to prevail.* 
 
 § 113. Delivery. — An instrument, to be a deed, must, like 
 any other written contract, be delivered ; ^ not merely as an 
 escrow, but absolutely.^ Thereupon it takes effect.^ 
 , § 114. Date and Place. — It need have no date ; * it is even 
 good with an impossible one, or one differing from the fact. 
 
 prudence, by many precedents of high 
 authority, that, when the seal of a party, 
 required to make an instrument valid 
 and effectual at law, has been omitted 
 by accident or mistake, a court of chan- 
 cery, in order to carry out his inten- 
 tion, will, at the suit of those who are 
 justly and equitably entitled to the bene- 
 fit of the instrument, adjudge it to be as 
 valid as if it had been sealed, and will 
 grant relief accordingly, either by com- 
 pelling the seal to be affixed, or by re- 
 straining the setting up of the want of it 
 to defeat a recovery at law." Gray, J. 
 in Bernards v. Stebbins, 109 U. S. 341, 
 349, referring to Smith v. Ashton, Freem. 
 Ch. 308, Cas. temp. Finch, 273 ; Cock- 
 erell v. Cholmeley, 1 Russ. & Myl. 418, 
 424; Montville w. Haughton, 7 Conn. 
 543, and other cases cited in this note ; 
 also Wiser v. Blachly, 1 Johns. Ch. 607 ; 
 Green v. Morris,. &c. Railroad, 1 Beas. 
 165, 2 McCarter, 469 ; Druiff v. Parker, 
 Law Rep. 5 Eq. 131. 
 
 1 Whitney v. Coleman, 9 Daly, 238. 
 See United States v. Hodson, 10 Wal. 
 395. 
 
 2 Tasker v. Bartlett, supra ; Bail v. 
 
 Punsterville, 4 T. R. 313; Norvell v. 
 Walker, 9 W. Va. 447; Northumber- 
 land V. Cobleigh, 59 N. H. 250 ; Burnett 
 V. McCluey, 78 Misso. 676; New Or- 
 leans, &c. Railroad v. Burke, 53 Missis. 
 200 ; Pickens v. Ryraer, 90 N. C. 282 ; 
 The State v. Spartanburg, &c. Railroad, 
 8 S. C. 129. 
 
 * Cromwell v. Grflnsden, 2 Salk. 462 ; 
 Smith Con. 2d Eng. ed. 5. 
 
 * Cooch u. Goodman, 2 Q. B. 580; 
 Jeffery v. Underwood, 1 Pike, 108; 
 Taunton v. Pepler, 6 Madd, 166; Ex 
 parte Hodgkinson, 19 Ves. 291, 296; 
 Wright V. Wakeford, 17 Ves. 454 a, 459 ; 
 Saunders v. Hackney, 10 Lea, 194. 
 
 5 Post, § 349-361. 
 
 6 4 Kent Com. 454 ; Smith Con. 2d 
 Eng. ed. 6 ; 1 Chit. Con. Uth Am. ed. 
 4 ; Cannon v. Cannon, 11 C. E. Green, 
 316; Hawkes v. Pike, 105 Mass. 560; 
 Watkins v. Nash, Law Rep. 20 Eq. 
 262. 
 
 ' Browne v. Burton, 5 Dowl. & L. 
 289, 2 Bail Court, 220. 
 
 8 McMichael v. Carlyle, 53 Wis. 
 504. 
 
 45 
 
§ 119 IN GENERAL WITH ILLUSTRATIONS. [BOOK 1, 
 
 Its date in law is that of the delivery. Nor need it mention 
 the place where executed.^ 
 
 § 115. Form of Words. — As in other instruments, the form 
 of words is immaterial if the meaning is distinct.^ Even — 
 
 Foreign Language. — It is not made ill by being written in a 
 foreign language-* Thus also, — 
 
 § 116. Name of Obligor. — It is the correct and common 
 form to place thd name of the obligor in the body of the in- 
 strument ; yet, if it is not there, or if it is there and differs 
 from the name sijjned, it will be good.* But, — 
 
 § 117. Uncertain. — If the obligee or grantee is uncertain,* 
 or if otherwise thfe meaning cannot be sufficiently ascertained, 
 the instrument will be void.® An abbreviation iu the name 
 may be explaii/ed by oral evidence.^ 
 
 § 118. Els^here. — A part of the foregoing propositions 
 are common to all written contracts, by reason of which they 
 will be more fully explained in other connections. 
 
 II. The Consideration. 
 
 § 119. General Rule. — Except as about to be seated, a 
 sealed instrument is binding in a court of law, though no 
 consideration is mentioned in it, and though there is none in 
 "fact. The seal is said to import a consideration, and to estop 
 the party from denying it.* But, — 
 
 1 Anonymous, 7 Mod. 38 ; Willion ' Parker v. Eennaday, Cro. Jac. 208. 
 i>. Berkley, 1 Plow. 223,231 ; Dodson v. < Williams v. Greer, 4 Hayw. 235, 
 Kayes, Yelv. 193; Cromwell v. Grims- 239; Smith t'. Crooker, 5 Mass. .'538; 
 dale. Comb. 477 ; s. c. nom. Cromwell v. Foamier v. Cyr, 64 Maine, 32, 35 ; Ex 
 Grunsden, 2 Salk. 462, 1 Ld. Raym. 335 ; parte Fulton, 7 Cow. 484 ; Partridge ». 
 Pierce v. Richardson, 37 N. H. 306 ; Jones, 38 Ohio State, 375. 
 
 Fournier i'. Cyr, 64 Maine, 32 ; Armote « Douthitt v. Stinson, 63 Misso. 268. 
 
 V. Bream, Holt, 212 ; Goddard's Case, 6 Worthington v. Hylyer, 4 Mass. 
 
 2 Co. 4 6, 3 Leon. 100; Add. Con. 7th 196, 205; Swain v. Ransom, 18 Johns. 
 
 Eng. cd. 18. See post, § 178. 107 ; post, § 316, 390. 
 
 2 Taylor v. Preston, 29 Smith, Pa. ' Aultman, &c. Manuf. Co. v. Rich- 
 436; Bedow's Case, 1 Leon. 25; Ciom- ardson, 7 Neb. 1. 
 
 well V. Grumsdale, 12 Mod. 193; Dob- 8 Ante, § 51, 83; Harris u. Harris, 23 
 
 son V. Keys, Cro. Jac. 261 ; s. o. nom. Grat. 737 ; Van Valkenburgh v. Smith, 
 
 Dodsonu.Kayes, Yelv. 193; Saunders w. 60 Maine, 97; Sharington i\ Strotton, 
 
 Hanes, 44 N. Y. 353 ; Wood v. Copper 1 Plow. 298, 309 ; Page v. Trufant, 2 
 
 Miners Co. 7 C. B. 906. Mass. 159, 162; Fallowes ». Taylor, 7 
 46 
 
CHAP. IV.] CONTRACTS UNDER SEAL. § 121 
 
 § 120. In Equity. — Though a court of equity holds this 
 general doctrine ; and so, for example, will not relieve against 
 a bond on the mere ground that it is without consideration,^ 
 and though it will presume a consideration from a seal ; ^ yet, 
 on the other hand, it will not interfere with its special reme- 
 dies, such as to aid a defective conveyance of land,^ or decree 
 specific performance of a covenant to convey,* where there 
 was no consideration in fact.' Again, — 
 
 § 121. Illegal — Fraud, &o. — Inquiring into. — If the sealed 
 undertaking is to do a thing unlawful, or against public 
 policy or morals, or if the unexpressed consideration for it 
 is in fact thus tainted, or if it was obtained by fraud or 
 duress, the seal will not serve as a screen for the wrong ; but 
 the real nature of the transaction, though it does not appear 
 on the face of the instrument, may be shown, and a party 
 maj'^ avail himself of this matter, the same as though there 
 were no seal.^ And the general doctrine, that we may look 
 into the real consideration of a wi'itten contract, already ex- 
 plained,^ applies as well to sealed contracts as to others.^ If 
 
 T. R. 47^; Cooch v. Goodman, 2 Q. B. 5 Jur. 1076 ; HoUoway w. Headington, 8 
 
 580, Denman, C. J. observing, " that a Sim. 324 ; Downs v. Porter, 54 Texas, 59. 
 covenant, being under seal, does not by ^ Leake Con. 147, 608, 609 ; post, 
 
 law require any consideration to support § 124. But see Jones v. Jones, 6 Conn, 
 
 it; and, though an illegal consideration 111. 
 
 may be shown, and will vitiate it, and if ® Cases cited ante, § 119; also Smith 
 a consideration be stated on the face of Con. 2d Eng.ed. 12-16 ; Logan i>. Plura- 
 a deed a different one may be proved in mer, 70 N. C. 383 ; Mitchell v. Key- 
 order to raise a legal defence, yet a mere nolds, 10 Mod. 130, 134 ; Hodson v, In- 
 failure of consideration which once ex- gram, Aleyn, 60 ; Hacket v. Tilly, 1 1 
 isted may have no more effect than a Mod. 93; Beawfage's Case, 10 Co. 99 6; 
 total want of consideration in the first Carpenter v. Beer, Comb. 246 ; Burk- 
 instance," p. 599 ; Douglass w. Rowland, holder v. Plank, 19 Smith, Pa. 225; 
 24 Wend. 35; Burkholder v. Plank, 19 Reniger i-. Fogossa, 1 Plow. 1, 19; 
 Smith, Pa. 2-'5; Mack's Appeal, 18 Hazard v. Irwin, 18 Pick. 95, 106; 
 Smith, Pa. 231 ; Wing v. Peck, 54 Vt. Obert v. Hammel, 3 Harrison, 73; lies 
 245 ; The State v. Gott, 44 Md. 341. v. Cox, 83 Ind. 577 ; Thorn v. Thorn, 51 
 
 ^ Jenk. Cent. 109. Mich. 167; Cothran v. Forsyth, 68 Ga. 
 
 ^ Northern Kansas Town Co. v. Os- 560 ; Hogdon v. Green, 56 Iowa, 733. 
 wald, 18 Kan. 336. '' Ante, § 75. 
 
 » Anonymous, 12 Mod. 603. 8 xhe State v. Gott, 44 Md. 341 ; 
 
 * Lister v. Hodgson, Law Rep. 4 Eq. Altringer v. Capeheart, 68 Misso. 441, 
 
 30, 36 ; Jefferys v. JefEerys, Craig & P. 444 ; Clifford i>. Turrell, 1 Y. & Col. C. C. 
 
 138; Keffer v. Grayson, 76 Va. 517. 138, 9 Jur. 633; Pique w. Arcndale, 71 
 
 And see James v. Bydder, 4 Beav. 600, Ala. 91 ; Huebsch v. Scheel, 81 111. 281. 
 
 47 
 
§124 IN GENERAL WITH ILLUSTEATIONS. [BOOK I. 
 
 the law were not so, the seal "would," in the words of Lord 
 Ellenborough, " be made a cover for every species of wick- 
 edness and illegality." ^ Thus, — 
 
 § 122. Compounding. — A bond, the real consideration for 
 which is, though not stated, that the obligee will not appear 
 against another in a criminal cause, will be held void on the 
 fact appearing."'^ Or, — 
 
 § 123. Unlawful Arrest. — If one gives a bond to procure 
 his discharge from an unlawful arrest, the consideration and 
 duress may be shown, whereupon it will be adjudged void.* 
 
 § 124. Exceptional Reasons — may require a consideration, 
 contrary to the general rule. The priucipal and perhaps .only 
 specialties within this exception are — 
 
 Conveyances of Land. — It was an earlj"^ doctrine under the 
 Statute of Uses, that, in the words of Coke, "an use cannot 
 be raised by any covenant or proviso, or by bargain and sale, 
 upon a general consideration ; " " for it doth not appear to 
 the court that the bargainor hath quid pro quo, and the court 
 ought to judge whether the consideration be sufficient or not, 
 and that cannot be when it is alleged in such generality."* 
 A somewhat different expression of the doctrine is, that, by 
 the rules of the equity tribunals, which hud the sole jurisdic- 
 tion of uses before the statute, a use could not be enforced 
 without a consideration,® and the statute made legal only 
 what before existed in equity.® It became, therefore, and still 
 remains a rule of law that, in conveyances which derive their 
 force from the Statute of Uses, the seal does not supersede 
 the necessity of a consideration otherwise appearing.'^ And 
 these comprehend most of the conveyances commonly em- 
 
 1 Paxton V. Popham, 9 East, 408, ^ Hudson v. Alexander, 3 Johns. 484, 
 
 421. See Hartshorn v. Day, 19 How. 488, 491. 
 U. S. 211 , 222. 1 Smith Con 2d Eng. ed. 12 ; Springs 
 
 " Collins V. Blantern, 2 Wils. 341 ; v. Hanks, 5 Ire. 30 ; Bolton v. Carlisle, 
 
 Gondy v. Gebhart, 1 Ohio State, 262. 2 H. Bl. 259 ; Sargent v. Reed, 2 
 
 ' Bowker v. Lowell, 49 Maine, 429; Stra. 1228, 1229 ; 1 Chit. PI. 8th Am. 
 
 Greathouse v. Dunlap, 3 McLean, 303. ed. 366 ; 2 lb. 576 et seq. ; Thomas's 
 
 * Mildmay's Case, 1 Co. 175 a, 176 a ; note to 1 Co. 1 76 a ; Allen v. Florence, 
 
 and see the notes, with the authorities 16 Johns. 47; 3 Washb. Real Prop. 4th 
 
 collected, by Thomas. ed. 368. 
 
 6 Ante, § 120. 
 
 48 
 
CHAP. IV.] CONTRACTS UNDER SEAL. § 125 
 
 ployed in our States.^ But we have seen that on this ex- 
 ception the law has engrafted another as to the nature of the 
 consideration ; for, while a simple executory contract to be 
 enforced must proceed on a " valuable " consideration, that 
 of the executed deed of conveyance of lands may, in a 
 family arrangement, and as between the parties, be simply 
 " good," — to be set aside, in proper cases, in favor of third 
 persons with superior claims.^ The consideration, whether 
 valuable or merely good, must, by the general doctrine, either 
 be set down in the deed or, if -suit is brought, be proved, but 
 the latter alone will suflSce in the absence of the former.' 
 Still there may be a conveyance valid as between the parties 
 without any, even the " good," consideration in fact.* The 
 result of which reasoning appears to be, that, for a gift of land 
 neither in family settlement nor to a relative of the grantee to 
 be effectual, the deed must in form recite a valuable consid- 
 eration, which still may be a mere fiction.^ And such would 
 seem to be the doctrine of some courts,® but others hold that 
 no consideration need be even expressed.^ The statutes and 
 decisions differ so much in our States ^ that it is deemed best 
 to leave the question here, with no further attempt even to 
 cite authorities, but with the caution to the practitioner to 
 look for himself into the law of his own State. 
 
 § 125. Conveyances of Chattels — are not governed by the 
 
 1 Hudson D.Alexander, supra; Wal- Brayner, 63 Misso. 461 ; Richardson v. 
 lis V. Wallis, 4 Mass. 135; Parker v. Clow, 8 Bradw. 91 ; post, § 275. 
 Nichols, 7 Pick. Ill; Gale v. Cohurn, ^ Howell u. Delancey, 4 Cow. 427; 
 18 Pick. 397, 400; Hortonu. Sledge, 29 Saunders v. Cad well, 1 Cow. 622; 
 Ala. 478; Piatt v. Brown, 30 Conn. .336. Grout v. Townsend, 2 Hill, N. T. 554, 
 
 2 Ante, § 42, 43 ; Gully v. Exeter, 10 557 ; Coxe v. Sartwell, 9 Harris, Pa. 
 B. & C. 584, 606. 480. 
 
 8 Goodtitle v. Petto, 2 Stra. 934 ; ' Rogers v. Hillhouse, 3 Conn. 398 ; 
 
 Mildmay's Case, 1 Co. 175a, 176a. Randall v. Ghent, 19 Ind. 271 ; Croft v. 
 
 * 4 Kent Com. 465; Fouty v. Fouty, Bunster, 9 "Wis. 503. See Peacock v. 
 
 34 Ind. 433 ; Shaw v. Bran, 1 Stark. Monk, 1 Ves. Sen. 127. 
 319. 8 Compare Huston v, Markley, 49 
 
 5 Estoppel. — To such a deed it ap- Iowa, 162 ; "Warren v. Tobey, 32 Mich, 
 
 pears the doctrine would, as between the 45 ; Mason v. Moulden, 58 Ind. 1 ; Mc- 
 
 parties, well apply, that evidence eon- Crea w. Pnrmort, 16 "Wond. 460; Kirk- 
 
 tradicting the consideration will not be patrick v. Taylor, 43 111. 207 ; Ford v- 
 
 received to defeat the deed. Clarkson v. EUingwood, 3 Met. Ky. 359 ; Penning- 
 
 Hanwav, 2 P. Wms. 203 ; McConnell v. ton v. Gittings, 2 Gill & J. 208. 
 4 49 
 
§ 127 IN GENERAL WITH ILLtTSTRATIONS. [BOOK I. 
 
 real-estate rules. So, in them, a seal imports a consideration, 
 and none need be either expressed or shown in evidence.^ 
 
 § 126. In Restraint of Trade. — A contract in restraint of 
 trade is, in general, void as against public policy .2 It is equally 
 so, therefore, whether under seal or by parol.^ But a partial 
 restraint, which operates to divide the field of trade between 
 different persons, is in many circumstances unobjectionable, 
 and the agreement for it good, if on such valuable considera- 
 tion as shows the restraint to be reasonable.* Therefore, as 
 there must be, not merely a seal, but a consideration in fact, 
 such consideration must appear in the writing equally whether 
 under seal or not.® So are the authorities; still, if, distin- 
 guishing the consideration from the covenants or promises,^ 
 we conclude that the consideration need not appear in an 
 ordinary agreement in writing, we may carry the reasoning 
 to the result that, in the present case, it will be sufficient if 
 appearing in the averments and proofs at the trial. And 
 this we have seen, on authority, to be the rule as to the con- 
 sideration in a deed of landJ Finally, — 
 
 § 127. Local Usage or Statute. — " By local usage in some 
 of the States of the Union, and by statute in others, the want 
 or failure of consideration is a valid defence to a suit on 
 a sealed contract ; " ^ or, the seal is reduced to mere presump- 
 tive evidence of a consideration.^ In some other States a 
 seal is by statute rendered always unnecessary, so that an in- 
 strument without seal is equally effectual with a sealed one.^" 
 
 1 Bunn V. Winthrop, 1 Johns. Ch. « Ante, § 75. 
 329. 7 Ante, § 124. 
 
 2 Post, § 513-520. 8 Met. Con. 161, 162; Pierce ». 
 ' Alger V. Thacher, 19 Pick. 51; Wright, 33 Texas, 631; Greathouse v. 
 
 Saratoga County Bank v. King, 44 N. T. Dunlap, 3 McLean, 303 ; Kinnebrew v. 
 87, 91; Allsopp V. Wheatcroft, Law Kinnebrew, 35 Ala. 628 ; Stovall w. Bar- 
 Rep. 15 Eq. 59. nett, 4 Litt. 207; 1 Pars. Con. 6th ed. 
 
 * Mitchel V. Reynolds, 1 P. Wms. 429 ; Ring v. Kelly, 10 Misso. Ap. 
 
 1 81 , 10 Mod. 27, 85 ; Gunmakers v. Fell, 411. 
 
 Willes, 384; Smith Con. 2d Eng. ed. 9 Campbell v. Tompkins, 5 Stew. 
 
 133; Davis u. Mason, 5 T. R. 118, 120. Ch. 170; AUer t>. Aller, 11 Vroom, 
 
 5 1 Chit. PI. 8th Am. ed. 366 ; Met. 446. 
 
 Con. 2, 233 ; Tomlinson v. Dighton, 1 w McKinney v. Miller, 19 Mich. 142, 
 
 P. Wms. 149, 156, 157 ; Mallan ».May, 151. 
 11 M. & W. 653, 665. 
 
 50 
 
CHAP. IV.] CONTRACTS UNDER SEAL. § 130 
 
 III. The High Nature of the Specialty and its Consequences. 
 
 § 128. 'What the Doctrine. — An instrument under seal is 
 deemed by the law of a higher nature than one not sealed. 
 Therefore, — 
 
 § 129. Merger. — If the parties to a simple contract enter 
 into one on the same matter under seal, the former is merged 
 in and extinguished by the latter.^ And it is immaterial 
 whether they intended this consequence or not; for, said 
 Maule, J., " one cannot have, in respect of the same demand, 
 a coexisting remedy, by proceeding both on covenant and on 
 simple contract." 2 But the mere giving, under seal, of secu- 
 rity for a simple-contract debt, and incidentally acknowledg- 
 ing it, does not elevate it to a specialty ; ^ if, beyond this, the 
 covenant embraces also a promise to pay, the simple contract 
 is merged and extinguished.* Always, for the specialty to 
 have this effect, it must be coextensive with the simple con- 
 tract, and between the same parties.^ Again, — 
 
 § 130. Varied or abrogated. — It is said in the older cases, 
 and repeated in many of the modern ones, that a specialty 
 cannot be varied or abrogated by words not under seal ; ® " for 
 every contract or agreement ought to be dissolved by matter 
 of as high a nature as the first deed." ^ On the other hand, 
 the exact reverse has been laid down as the better present 
 doctrine.^ The old rule is certainly not now followed with- 
 
 1 1 Chit Con. llth Am. ed. 9 ; Smith « Rutland's Case, .5 Co. 25 6 ; Parker 
 Con. 2d Eng. ed. 19 ; Bobbins v. Ayrcs, v. Ramsbottom, 5 D. & R. 138, 3 B. & C. 
 10 Misso. 538; Banorgee v. Hovey, 5 257 ; Miller v. Hemphill, 4 Eng. 488 ; 
 Mass. 1 1 ; Rhoads v. Jones, 92 Ind. 328. Harper v. Hampton, 1 Har. & 3. 622 ; 
 See Witbeck v. Waine, 16 N. Y. 532 ; Delacroix v. Bulkley, 13 Wend. 71 ; Sin- 
 Charles V. Scott,. 1 S. & R. 294. ard ». Patterson, 3 Blackf.353; Thomp- 
 
 " Price V. Moulton, 10 C. B. 561, 15 Bon v. Brown, 1 Moore, 358, 7 Taunt. 
 
 Jur. 228, 229. 656 ; Rogers v. Payne, 2 Wils. 376 ; 
 
 * Marryat v. Marryat, 28 Beav. 224, Neal v. Sheaffield, Cro. Jac. 254 ; Vaughn 
 6 Jur. w. 8. 572; Holmes v. Bell, 3 Man. v. Ferris, 2 W-itts & S. 46; Perry v. 
 & G. 213, 3 Scott, N. R. 479; Two- Clymore, 3 McCord, 245 ; Hume «. Tay- 
 penny p. Young, 3 B. & C. 208. lor, 63 111. 43 ; Chapman v. McGrew, 20 
 
 * Saunders v. Milsome, Law Rep. 2 111. 101 ; Barnett v. Barnes, 73 111. 216. 
 Bq. 573. ' Rutland's Case, supra. 
 
 6 Boaler v. Mayor, 19 C. B. n. b. 76; « Canal Co. v. Ray, 101 U. S. 522. 
 
 Sharpe v. Gibbs, 16 C. B. n. s. 527. 527. 
 
 51 
 
§ 135 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 out modifications,! if, indeed, it ever was. Descending to 
 particulars, the common and reasonable course of the adjudi- 
 cations is that — 
 
 § 131. No Consideration — Parol License. — A mere verbal 
 license, which passes without consideration, to one to do 
 a thing contrary to his covenant will not avail the doer in 
 defence of an action on the covenant.^ But, — 
 
 § 132. Accord and Satisfaction. — As a specialty under- 
 taking can be performed without seal, so also without seal 
 there can be accord and satisfaction of it.^ And, — 
 
 § 133. Modify. — By oral or written words founded on 
 a consideration, if plain in intent and terms, a sealed contract 
 may be modified without seal.* Yet, as the new part, or mod- 
 ification, is not a specialty, and what remains of the old part 
 has ceased to be the perfected agreement to which the seal 
 was attached, and has become merged in the unsealed pro- 
 visions, the whole is now to be treated as one parol contract.^ 
 In like manner, — 
 
 § 134. Discharged. — For a valuable consideration, the spe- 
 cialty may, before breach, the same as after, be discharged by 
 the mutual parol agreement of the parties,® — a proposition 
 substantially the same as before laid down.^ A fortiori, — 
 
 § 135. Rescind by Executed Parol. — If a parol agreement 
 rescinding a specialty is fully executed, it will be effectual.* 
 Again, — 
 
 1 Herzog v. Sawyer, 61 Md. 344, 352 ; 6 jnu Dam Foundry v. Hovey, 21 
 White V. Walker, 31 111. 422. Pick. 417, 429 ; Baird v. Blaigrove, 1 
 
 2 West V. Blakeway, 2 Man. & G, Wash. Va. 170; Quigley v. De Haas, 2 
 729; Chapman v. McGrew, 20 III. 101. Out. Pa. 292; Miller w. Watson, 7 Cow. 
 See Farley v. Thompson, 15 Mtss. 18. 39. 
 
 8 Alden i>. Blague, Cro. Jac. 99 ; ' Herzog v. Sawyer, 61 Md. 344; 
 
 Gilson V. Stewart, 7 Watts, 100 ; Parker Dearborn v. Cross, 7 Cow. 48 ; Thoma- 
 
 D. Ramsbottom, 3 B. & C. 257, 271, 272. son v. Dill, 30 Ala. 444; Robinson v. 
 
 And see Moody v. Leavitt, 2 N. H. 171 ; Bullock, 66 Ala. 548. Contra, as to 
 
 Lawall V. Rader, 2 Grant Pa. 426 ; Reed the discharge before breach. Spence v. 
 
 V. McGrew, 5 Ohio, 375, 381. Healey, 8 Exch. 668. An unsealed re- 
 
 * Canal Co. v. Ray, 101 TJ. S. 522; lease without consideration is, of course, 
 
 Robinson v. Bullock, 66 Ala. 548 ; Flem- without effect. Miller v. Hemler, 5 
 
 ing V. Gilbert, 3 Johns. 528 ; Cooke Watts & S. 486 ; Kidder v. Eidder, 9 
 
 V. Murphy, 70 111. 96 ; Le Fevre v. Le Casey, Pa. 268. 
 
 Fevre, 4 S. & R. 241 ; Lawrence v. Mil- ' Ante, § 132. 
 
 ler, 86 N. Y. 131, 139. 8 phelps v. Seely, 22 Grat. 678; 
 
 52 
 
CHAP. IV.] CONTRACTS UNDER SEAL. § 139 
 
 § 136. Engraft Parol on it. — An agreement not under seal 
 may be engrafted on a prior sealed one; but, by this, the 
 whole is reduced in law to a simple contract.^ Or, — 
 
 § 187. Substitute Parol. — A parol contract may be substi- 
 tuted for a sealed one.^ Also, — 
 
 § 188. msewhere. — In other connections will be found 
 various incidental illustrations of the subject of this sub-title. 
 
 § 139. The Doctrine of this Chapter restated. 
 
 An instrument under seal has derived, from the ancient 
 law, a dignity superior to that of any other private writing. 
 And, in conclusiveness, it occupies a middle ground between 
 the simple contract and judicial record. Something in modern 
 times — it is difficult to say how much — has been abated of 
 the respect with which it was formerly regarded ; and, in a 
 few of our States, it has ceased to be more, or much more, 
 than a simple contract. There is a little uncertainty in the 
 doctrines at some points, or in some States ; and practitioners 
 should acquaint themselves specially with the decisions of the 
 courts of their own State relating to this subject. 
 
 Green v. Wells, 2 Cal. 584 ; Townsend New, 28 N. Y. 147 ; Acker v. Bender, 
 
 ». Empire Stone-Dressing Co. 6 Duer, 33 Ala. 230 ; Vauglin v. Ferris, 2 Watts 
 
 208; Dearborn v. Cross, 7 Cow. 48; &S. 46; Aikin v. Bloodgood, 12 Ala. 
 
 Dickerson v. Ripley, 6 Ind. 128. And 221 ; Whiting v. Heslep, 4 Cal. 327. 
 see Brown v. Brine, 1 Ex. D. 5 ; John- ^ McGrann v. North Lebanon Rail- 
 
 ston V. Salisbury, 61 III. 316 ; Lawrence road, 5 Casey, Pa. 82 ; Low v. Forbes, 
 
 V. Dole, 11 Vt. 549. 18 111. 568 ; Byrd v. Bertrand, 2 Eng. 
 
 1 Hydeville Co. v. Eagle Railroad 321 ; Baird v. Blaigrove, I Wash. Va. 
 
 and SlatB Co. 44 Vt. 395; French u. 170; Bolt v. Dawkins, 16 S, C. 198. 
 
 63 
 
§ 142 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 CHAPTER V. 
 
 CONTBACTS OP EECOBD. 
 
 § 140. Defined. — A contract of record is one made and 
 entered of record before a judicial tribunal. 
 
 § 141. Judgments. — Ordinary judgments, wherein defend- 
 ants are required to pay specified sums to plaintiffe, are by 
 some writers classed as contracts.^ Under common-law rules, 
 the action of debt,^ but not of assumpsit,^ lies on the judg- 
 ment ; except that, upon a foreign judgment, one may at his 
 election maintain assumpsit, for it is not deemed a record.* 
 This view is not conclusive that the domestic — including, 
 with us, the interstate — judgment is not to be regarded as a 
 contract. Still, where it is founded on a pure tort,, it is not 
 traceable back to any assent of the mind, as even the contract 
 created by law commonly is ; and, where it is the outcome 
 of a contract, such contract is absorbed in the judgment;^ so 
 there is no scientific necessity for classifying it under this 
 head, contrary to the common sense of the question. Re- 
 jecting, therefore, these judgments from this title, — 
 
 § 142. Limited Extent. — With, perhaps, exceptions in 
 some of our States, we have no contracts of record other than 
 recognizances, and it is believed to be substantially the same 
 now in England.^ 
 
 1 2 BI. Com. 461, 465 ; Leake Con. * Battrick v. Allen, 8 Mass. 273 ; 
 125, 155. Harris v. Saunders, 4 B. & C. 411. 
 
 2 Williams v. Jones, 13 M. & W. « Ex parte Fewings, 25 Ch. D. 338, 
 628 ; Cole «. Driskell, 1 Blackf. 16. 355. 
 
 » 1 Chit. PI. 103 ; Andrews v. Mont- 6 Smith Con. 2d Eng. ed. 3. But 
 
 gomery, 19 Johns. 162; Vail v. Mum- see, as to the warrant of attorney and 
 ford, 1 Boot, 142 ; Bain v. Hunt, 3 cognovit actionem, Leake Con. 156, 157. 
 Hawks, 572; India Bubber Factory v. 
 Hoit, 14 Vt. 92. 
 
 54 
 
CHAP, v.] CONTRACTS OP EECOED. § 147 
 
 § 143. Statutes Merchant and Staple. — Formerly, in 
 England, there were familiar bonds of record, known as 
 statutes-merchant and statutes-staple. They were a species 
 of recognizance.^ In rare instances they may have been re- 
 sorted to in some of our States in early times,^ but they are 
 now unknown with us. 
 
 § 144. Recognizance. — The recognizance, with us, is most 
 frequently, but not exclusively, employed in criminal causes ; 
 obligating the parties and witnesses, and their bail and other 
 sureties for them, to appear in court, to prosecute, defend, 
 pay adjudged costs, testify, and the like.* 
 
 § 145. Recognizance defined. — As defined in the English 
 books, it is " an obligation of record, which a man enters into 
 before some court of record, or magistrate duly authorized, 
 with condition to do some particular act;"* as, to appear at 
 the assizes, to keep the peace, &c.^ 
 
 § 146. Discharging. — A recognizance, being a record, fol- 
 lows the rule of other record debts and judgments as to a dis- 
 charge out of court ; it may be done, and can be only, by an 
 instrument under seal.® 
 
 § 147. Compounding. — After forfeiture, the sum to be paid 
 may be remitted or reduced in court, by order of the judge, 
 on proper cause shown .^ Such is believed to be the com- 
 mon-law rule,* though plainly it could not be applied to 
 the impairing of vested private interests. Still it was held in 
 Massachusetts not competent for the tribunal to relieve the 
 cognizor against a forfeited penalty, as on a hearing in equity 
 upon a bond ; ^ but a statute afterward provided for a remis- 
 sion of the penalty in proper cases.^'' On this and other 
 questions relating to the recognizance, there has been much 
 
 1 2 Bl. Com. 160 ; 4 lb. 426, 428 ; 2 ? In re Fellow, 13 Price, 299 ; s. c. 
 Tidd Pr. 1132. nom. Ex parte Pellow, McClel. Ill ; 2 
 
 2 As, see Kilty Rep. Stats. 143. Chit. Gen. Pr. 396, 397 ; Rex v. Han- 
 8 Explained 1 Bishop Crim. Proced. kins, McClel. & Y. 27. 
 
 § 264-264 n. « 1 Bishop Crim. Proced. § 264 A. 
 
 < 2 TiddPr. 1131. 9 Johnson ». Randall, 7 Mass. 340; 
 
 * Toml. Law Diet. Recognizance. Merrill v. Prince, 7 Mass. 396. 
 
 « Sewall V. Sparrow, 16 Mass. 24, 26 ; lo Commonwealth v. Dana, 14 Mass. 
 
 The State v. Moody, 69 N. C. 529 ; Bar- 65. 
 ker V. St. Qnintin, 12 M. & W. 441. 
 
 55 
 
§ 150 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 legislation with us, and the practitioner should carefully ex- 
 amine the statutes of his own State. 
 
 § 148. Infancy — Coverture. — The recognizance, when it is 
 for a necessary thing, like the procuring of one's discharge 
 from arrest, binds, it seems, an infant.^ But it is not quite so 
 with a married woman ; for, under the common-law rules, she 
 cannot render herself personally holden even for necessaries. 
 Hence her recognizance will not be valid at the common law, 
 however it may be in equity, or under statutes enlarging her 
 powers.2 
 
 § 149. Enforcement. — Like any other record, it proves itself. 
 It may be enforced by " scire facias, — a writ which lies on a 
 record only, and consequently cannot be made use of for the 
 purpose of enforcing any other description of contract." ^ 
 Likewise the action of debt is maintainable, or in some of 
 our States there is a statutory proceeding.* 
 
 § 150. The Doctrine of this Chapter restated. 
 
 A contract entered into and made of record before a court 
 becomes itself a sort of judgment, in advance, against him who 
 may afterward prove to be in default. It does not admit of 
 the same freedom of inquiry into the merits of the case as do 
 other forms of contract. Hence, in general, the law does not 
 suffer parties to resort to it. The ordinary recognizance, by 
 which some simple thing, like an appearance, is agreed to be 
 done in the presence of the court itself, is not open to this 
 objection, and is, therefore, permitted. 
 
 1 1 Bishop Crim.Proced. §264c; Ex 2 i Bishop Crim. Proced. § 264 c. 
 
 parte Williams, McClel. 493, 13 Price, » Smith Con. 2d Eng. ed. 4. 
 
 673. But see Patchin v. Cromach, 13 * 1 Bishop Crim. Proced. § 264 m. 
 Vt 330. 
 
 56 
 
CHAP. VI.] OEAL CONTEACTS. § 153 
 
 CHAPTER VI. 
 
 ORAL CONTRACTS. 
 
 § 151. Formerly. — Speech, in the order of time, preceded 
 writiDg. Even pleadings in court were once, in England, 
 oral ; and in our country we have, at the present day, rem- 
 nants of oral pleas.^ So likewise there appears to have been 
 in our law a period when contracts of nearly or quite every 
 sort could be made orally, with the same effect as by writing. 
 Thus, for a long time after the Norman Conquest, a deed was 
 not an essential part of a feoffment, but the feoffor could ex- 
 plain his intent orally, while making livery of seisin upon the 
 land.2 Since then, — 
 
 § 152. Changes. — The convenience of business has intro- 
 duced contracts which, in their nature, could not be oral, — 
 as, for example, oral words for a bill of exchange cannot be 
 transmitted through the mails, or indorsed on its back, — 
 and the needful perpetuation of some other contracts can be 
 secured only by writing. Moreover, legislative policy has, on 
 one ground and another, rendered writing essential to some 
 contracts. Thus exceptions to the general doctrine have 
 been created. Hence, — 
 
 § 153. AU Contracts, except. — Every contract, on what- 
 ever subject, may be in oral words, which will have the same 
 effect as if written, except where some positive rule of the 
 common or statutory law has provided otherwise.^ Thus, — 
 
 1 1 Bishop Crim. Proced. §340, 788- ron v. Benedict, 44 Vt. 518; Besshears 
 790, 848. V. Kowe, 46 Misso. 501 ; Coleman v. 
 
 2 Deane Conv. 300 ; 4 Kent Com. Eyre, 45 N. Y. 38 ; Green v. Brookins, 
 450. 23 Mich. 48; White v. Maynard, 111 
 
 8 Mallory v. Gillett, 21 N. Y. 412 ; Mass. 250 ; Parsons v. Loucks, 48 N. Y. 
 Wyinan ». Goodrich, 26 Wis. 21 ; Bar- 17; Selma v. Mullen, 46 Ala. 411; 
 
 57 
 
§ 159 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 § 154. Insurance. — A contract of insurance, which in prac- 
 tice is usually by written policy, is equally good if verbally 
 made ; ^ except where, as in some of our States, a statute pro- 
 vides to the contrary. And, — 
 
 § 155. Assignment. — Though an assignment of a debt 
 is commonly by writing, yet a verbal assignment is good.^ 
 So,— 
 
 § 156. Arbitration. — A verbal submission of a controversy 
 to arbitration is valid ; except that neither it nor the award 
 can extend to what the parties could not themselves do ver- 
 bally .^ Even — 
 
 § 157. Acceptance. — A verbal acceptance of a bill of ex- 
 change,* or of a non-negotiable order,^ is, if there is no statute 
 to the contrary, good. 
 
 §158. Equal in Grade with 'Written. — While a verbal 
 contract is not of the same high nature as a specialty,^ it 
 is, when valid, on exactly the same footing as a written one 
 unsealed.'^ It differs merely in the methods of proof. Both 
 are termed — 
 
 § 159. Simple Contracts. — All contracts, not under seal, 
 — that is, all parol contracts, whether written or unwritten, — 
 are known as simple contracts.* 
 
 Bardwell v. Roberts, 66 Barb. 433 ; St. BuUard, 26 Maine, 448 ; Crane v. 
 
 Louis, &c. Railway i>. Maddox, 18 Kan. Gough, 4 Md. 316 ; Cleveland v. Mar- 
 
 546 ; Ungley v. Ungley, 4 Ch. D. 73, tin, 2 Head, 128 ; Bollison v. Hope, 18 
 
 5 Ch. D. 887 ; Bacon v. Daniels, 37 Ohio Texas, 446. 
 
 State, 279. a French v. New, 28 N. Y. 147 ; 
 
 1 Sanborn v. Fireman's Ins. Co. 16 Thomasson v. Risk, 11 Bush, 619; 
 Gray, 448 ; Walker i'. Metropolitan Ins. Copeland v. Wading Biver Reservoir, 
 Co..56Maine, 371 ; First Baptist Church 105 Mass. 397; Peabody v. Rice, 113 
 V. Brooklyn Fire Ins. Co. 19 N. Y. 305 ; Mass. 31 ; Phelps v. Dolan, 75 III. 90; 
 Hening v. United States Ins. Co. 2 Dil- Stockwell v. Bramble, 3 Ind. 428. 
 
 Ion, 26; Strohn v. Hartford Fire Ins. * Pierce b. Kittredge, 115 Mass. 374; 
 
 Co. 33 Wis. 648; Gerrish v. German Scudder v. Union National Bank, 91 
 
 Ins. Co. 55 N. H. 355; Westchester U. S. 406; Barnet v. Smith, 10 Fost 
 
 Fire Ins. Co. v. Earle, 33 Mich. 143. N. H. 256 ; Stockwell v. Bramble, 3 Ind. 
 
 And see Carrugi v. Atlantic, &c. Ins. 428. 
 Co. 40 Ga. 135. s Bird ». McElvaine, 10 Ind. 40. 
 
 2 Simpson v. Bibber, 59 Maine, 196, « Ante, § 128-138. 
 
 199; Ponton v. GrifiSn, 72 N. C. 362; T Ante, §; 25-27 ; Chit. Con. 11th 
 
 Currier v. Howard, 14 Gray, 511, 513; Am. ed. 5. 
 
 Spafiford v. Page, 15 Vt. 490; Garnsey 8 Add. Con. 7th Eng. ed. 2. 
 
 II. Gardner, 49 Maine, 167; Porter v. 
 
 58 
 
CHAP. VI.] ORAL CONTRACTS. § 161 
 
 § 160. Oral blending with 'Written. — Many questions arise 
 as to the effect of the blending of oral contracts and written, 
 in respect both of things which the law requires to be done 
 in writing, and of those which it does not. But they are 
 reserved for other connections. 
 
 § 161. The Doctrine of this Chapter restated. 
 
 Since oral words preceded written ones, and the time never 
 was when men could live together without entering into con- 
 tracts, those by mere speech were on every subject originally 
 good. And such is still the general rule. The exceptions 
 are contracts which, in their nature, can be made only in 
 writing, therefore could not have existed until it came into 
 use ; and those which, by a usage grown to be common law, 
 or by some statute, are specially required to be written. Prima 
 fade, we look upon an oral contract as good ; but, in the par- 
 ticular sort of case, writing may be found to be necessary. 
 
 59 
 
§16i 
 
 IN GENERAL WITH ILLUSTRATIONS. 
 
 [book 
 
 CHAPTER VII. 
 
 SIMPLE CONTRACTS IN WRITING. 
 
 § 162. Elsewhere. — Most of what would be appropriate 
 under this head can be better explained, further on, under 
 other titles. We shall here take only a general view of the 
 subject. 
 
 § 163. Defined. — A simple contract in writing differs from 
 a specialty ^ chiefly in not being under seal. A written con- 
 tract is one which, in all its terms, is in writing. 
 
 § 164. Partly in 'Writing. — A contract partly in writing 
 and partly oral is, in legal effect, an oral contract.^ It occurs 
 where an incomplete writing, or one expressing only a part 
 of what is meant, is by oral words rounded into the full con- 
 tract ; ^ or where there is first a written contract, and after- 
 ward it is changed orally.* 
 
 1 Ante, § no. 
 
 2 Ante, § 133 ; Hulbert v. Atherton, 
 59 Iowa, 91 ; St. Lonis, &c. Railway v. 
 Maddox, 18 Kan. 546 ; Smith v. O'Don- 
 nell, 8 Lea, 468 ; Vicary ». Moore, 2 
 Watts, 451 ; Wright v. Weeks, 25 N. Y. 
 153 ; Brooks v. Wheelock, 11 Pick. 439 ; 
 Dwight V. Pomeroy, 17 Mass. 303, 328; 
 Lang V. Henry, 54 N. H. 57 ; Dana v. 
 Hancock, 30 Vt. 616; Briggs v. Ver- 
 mont Central Railroad, 31 Vt. 211: In 
 Mullain v. Thomas, 43 Conn. 252, 254, 
 the learned judge deems it " difficult to 
 see how a contract can be partly oral 
 and partly in writing." Still the books 
 are full of cases in which learned judges 
 supposed they saw it. If I give a man 
 my note payable to himself, and he 
 promises to indorse it and get it dis- 
 counted, and then pay to my creditor the 
 
 60 
 
 money less one per cent for his trouble 
 and risk, — my written and his oral 
 promise being considerations for each 
 other, — is not this a contract partly 
 oral and partly in writing ? And a sim- 
 ilar case is where, as in Welz v. Rhodius, 
 87 Ind. 1, a man by written lease lets 
 real estate to another to be used in a 
 certain business, and as a part of the 
 bargain promises orally not to carry on 
 himself the same business in the same 
 city. The oral part can be orally 
 proved. lb. And see post, § 175. 
 
 8 Hawkins v. Lee, 8 Lea, 42; Cal- 
 lan V. Lukens, 8 Norris, Pa. 134 ; Moss 
 V. Green, 41 Misso. 389; Des Moines 
 V. Hinkley, 62 Iowa, 637. 
 
 * Aldrich i>. Price, 57 Iowa, 151; 
 Courtenay v. !Fuller, 65 Maine, 156. 
 
CHAP. VII.] SIMPLE CONTRACTS IN WRITING. § 169 
 
 § 165. Separate 'Writings, — on one piece of paper, or on 
 several attached pieces, or on separate papers referring to one 
 another or relating to the same subject, whether made simul- 
 taneously or on different occasions and days, may be regarded 
 as one contract, when this view of them is just, and accords 
 with the intent of the parties ; and, whether so or not, all 
 should be interpreted together.^ Yet, — 
 
 § 166. One Contract or more. — As foundation for suing, 
 what thus appears to be one contract may in law constitute 
 more contracts than one ; this will depend upon the words, 
 the subject, and the other facts and the justice of the case.^ 
 Within the same principle, — 
 
 §167. Simultaneous — (Oral — Written). — Two or more 
 contracts may be simultaneously entered into between the 
 same parties, both in writing or both oral, or one in writing 
 and the other oral.^ Again, — 
 
 § 168. Writings as Memoranda, &c. — Parties entering into 
 an oral contract may employ written memoranda in aid of 
 it ; in which case, and in others wherein there are writings 
 evidently not meant to be complete, the contract is oral, and 
 as such is not prevented from being good by what is written.* 
 
 § 169. Oral to contradict written. — These explanations 
 will assist the reader to avoid being misled by the leading 
 rule, that, in the absence of fraud or mistake, oral evidence 
 
 1 Bobbitt V. Liverpool, &c. Ins. Co. w. Kittarniing Coal Co. SNorris, Pa.231. 
 66 N. C. 70; Lyburn v. Warrington, See Whitaker t>. Hawley, 30 Kan. 317. 
 
 1 Stark. 162; Ridgway u. Wharton, 6 H. » Phillips v. Preston, 5 How. D. S. 
 
 L. Cas. 238, 4 Jur. N. a. 173 ; Patch v. 278 ; Garrow v. Carpenter, 1 Port. 359 ; 
 
 Phcenix, &c. Ins. Co. 44 Vt. 481 ; Wild- Berryman v. Hewit, 6 J. J. Mar. 462 ; 
 
 man v. Taylor, 4 Ben. 42 ; Heath u.Wil- Page v. Sheffield, 2 Curt. C. C. 377 ; 
 
 liaras, 30 Ind. 495 ; Taylor v. Cornelius, Price v. Sturgis, 44 Cal. 591 ; Oregonian 
 
 10 Smith, Pa. 187; Pillow «. Brown, 26 Railway v. Wright, 10 Oregon, 162; 
 
 Ark. 240, 249 ; Bradley v. Marshall, 54 Reynolds v. Hassara, 56 Vt. 449 ; Hedge 
 
 111.173,174; Smith w. Turpin, 20 Ohio v. Gibson, 58 Iowa, 656; Trayer v. 
 
 State, 478 ; Crop v. Norton, 2 Atk. 74, Reeder, 45 Iowa, 272. 
 9 Mod. 233 ; Dean v. Lawham, 7 Ore- * Mobile Marine, &c. Co. v. McMil- 
 
 gon, 422; Bradstreet u. Rich, 74 Maine, Ian, 31 Ala. 711; The Alida, 1 Abb. 
 
 303 ; Mackenzie v. Edinbnrg School Tr. Adm. 173; Pacific Iron Works v. New- 
 
 72 Ind. 189 ; 1 Chit. Con. 11th Am. ed. hall, 34 Conn. 67; Ruggles v. Swan- 
 
 146, 147. See post, § 382, wick, 6 Minn. 526 ; Pinney v. Thomp- 
 
 2 More V. Bonnet, 40 Cal. 251 ; Da- son, 3 Iowa, 74 ; Lathrop v. Bramhall, 
 vidson V. Peticolas, 34 Texas, 27 ; Scott 64 N. Y. 365. 
 
 61 
 
§ 170 IN GBNKRAL WITH ILLUSTEATIONS. [BOOK I. 
 
 of what was said before^ or at the time of^ the making of a 
 written contract is not admissible to vary or especially to 
 contradict its terms, all such matter being deemed to be 
 merged in the writing.^ For example, — 
 
 Illustrations. — If the writing calls for payment in money, 
 a contemporaneous oral agreement to pay in something else 
 cannot be shown.* If in form it is a promissory note, proof 
 that it was orally understood between the parties to be a 
 receipt is not permissible.^ A mortgage cannot be thus ex- 
 cepted out of the operation of the covenant of warranty in 
 a deed of land.^ Nor can it be thus shown that a chattel 
 mortgage in writing was meant to include items not therein 
 inserted ; ^ or, that an agreement in writing to ship a speci- 
 fied quantity of ice was orally limited to what the shipper 
 owned.8 But — 
 
 § 170. Not meant for Contract. — It may be shown by parol 
 that a writing, however complete in form and execution it 
 appears, was not intended by the parties to be their contract; 
 as, where they signed it on the understanding that it should 
 take effect only on a condition which has not been fulfilled.^ 
 Yet one cannot thus set up that it was to have simply a par- 
 
 1 Quartermous v. Kennedy, 29 Ark. Clure v. People's Freight Eailway, 9 
 544 ; Woodall v. Greater, 51 Ind. 539 ; Norris, Pa. 269. 
 
 Harding v. Commercial Loan Co. 84 III. ^ Dickson v. Harris, 60 Iowa, 727. 
 
 251. 6 Johnson b. Walter, 60 Iowa, 315; 
 
 2 Martin v. Cole, 104 U. S. 30; Bel- Bigham v- Bigham, 57 Texas, 238. 
 cher V. Mulhall, 57 Texas, 57, 19 ; Ben- ' Van Evera v. Davis, 51 Iowa, 637. 
 dor o. Montgomery, 8 Lea, 586, 593 ; Dra- Compare with post, § 177. 
 
 per V. Rice, 56 Iowa, 1 14 ; Davis v. Lib- 8 Schreiber o. Bntler, 84 Ind. 576. 
 erty, &c. Gravel Road, 84 Ind. 36 ; Huff- » Pym v. Campbell, 6 Ellis & B. 370, 
 
 man w. Hummer, 2 C. E. Green, 26-3, 269. 2 Jur. N. s. 641; Wallis v. Littell, 11 
 
 ' Kelly V. Roberts, 40 N. Y. 432 ; C. B. N. s. 369, 8 Jur. if. s. 745 ; Davis 
 Morse v. Low, 44 Vt. 561 ; Giraud v. v. Jones, 17 C. B. 625 ; Juilliard ». Chaf- 
 Eichmond, 2 C. B. 835 ; Day v. Thomp- fee, 92 N. Y. 529, 535. See Greenawalt 
 son, 65 Ala. 269 ; Grimes v. Simpson v. Kohne, 4 Norris, Pa. 369. Where the 
 Centenary College, 48 Iowa, 208 ; Tay- parties go so far as to deliver their writ- 
 lor 17. Trnlock, 55 Iowa, 448 ; Seckler v. ten contract, a distinction generally ad- 
 Fox, 51 Mich. 92 ; Hei v. Heller, 53 Wis. mitted is, that the doctrine of the text 
 415; Ives V. Williams, 50 Mich. 100. applies if it is not under seal, but not if 
 See Meredith v. Salmon, 21 Grat. 762; it is a specialty; the voluntary delivery, 
 Hilb V. Peyton, 21 Grat. 386; Shep- in the latter case, being so high an act 
 ard V. Haas, 14 Kan. 443. as not to admit of a parol denial of its 
 
 * Eonndtreeu.Gilroy, 57 Texas, 176; appropriate effect. Westman ». Krnm- 
 
 EimbaU v. Bryan, 56 Iowa, 632 ; Mc- weide, 30 Minn. 313 ; post, § 357. 
 62 
 
CHAP. VII.] SIBIPLE CONTRACTS IN WRITING. § 173 
 
 tial operation as their contract, for this would amount to a 
 contradiction of its terms.^ Again, — 
 
 § 171. lUegality — Fraud — Mistake. — Such illegality, fraud, 
 or mistake as renders a contract void may be shown by parol. 
 And it is no objection to this evidence that it conflicts with 
 the terms of the writing ; for, when the law has pronounced 
 it void, it has no terms, and it is not a contract.^ 
 
 § 172. Add to. — A parol contract may be added to a writ- 
 ten one without contradicting the written ; and the two may 
 stand together, though entered into simultaneously .^ Thus, — 
 
 Illustrations. — If one by writing conveys property to an- 
 other, this is a complete written contract ; yet, as a part of 
 the same transaction, the seller may obligate himself orally to 
 take back the property, should the other not like it, and to 
 pay for improvements thereon. This verbal agreement does 
 not vary the writing or its legal effect, it simply provides for 
 something beyond its scope.* Or, if a bank depositor buys 
 of the bank sight drafts, — such drafts constituting, it is per- 
 ceived, written contracts, — and if at the same time the bank 
 verbally promises to receive back and credit to him the drafts 
 with interest should he not purchase cattle with them as con- 
 templated, there is here nothing which conflicts with the 
 writing, and the verbal agreement is valid.^ Or, if one gives 
 to another a written bill of sale of goods, it may still be 
 shown by parol how the proceeds of the goods were to be 
 applied.® So, likewise, an oral contract and a simultaneous 
 written mortgage to secure its fulfilment may stand to- 
 gether.^ Moreover, — 
 
 § 173. Mortgage by Oral Defeasance. — A deed or other 
 
 1 Fenwick v. Brinkworth, 2 Fost. & Montelius v. Atherton, 6 Colo. 224 ; 
 
 F. 86. Green v. Randall, 51 "Vt. 67. 
 
 2 Ante, §121; 2 Kent Com. 556; * Greenawalt w. Kohne, 4 Nonis, Pa. 
 
 Isenhoot v. Chamberlain, 59 Cal. 630 ; 369. T have stated here what I under- 
 
 Thorne v. Warfflein, 4 Out. Pa. 519 ; stand to Be the true reasoning of the 
 
 Nelson v. Wood, 62 Ala. 175 ; Childs v. law, though it does not quite accord with 
 
 Dobbins, 61 Iowa, 109; Deakins v. Al- that in the report. Ante, § 12-16. 
 ley, 9 Lea, 494. ' Collingwood v. Merchants Bank, 
 
 * Ante, § 167 ; Hawkins v. Lee, 8 Lea, 15 Neb. 118. 
 42; Trayer v. Reeder, 45 Iowa, 272; » Ewaldt w. Farlow, 62 Iowa, 212. 
 
 ' Reynolds v. Hassam, 56 Vt. 449. 
 
 63 
 
§ 173 IN GENEEAL WITH ILLUSTRATIONS. [BOOK I. 
 
 written conveyance of property real or personal, absolute on 
 its face, will, if meant for mere security, take effect as a mort- 
 gage. And that it was so meant may be shown by oral evi- 
 dence.i Of course, under our registry laws, one purchasing 
 land so conveyed, not knowing of the defeasance, will hold it 
 absolutely .2 This doctrine, now abundantly established in 
 authority, struggled against some early opposition, and against 
 denials of it when its application was attempted in courts 
 of law ; and it carries the principle of admitting oral evidence 
 as against a writing to the very verge. Where the thing con- 
 veyed is such as can be legally transmitted from party to party 
 without writing, or such as one can orally obligate himself to 
 sell, there is no difficulty in principle with the doctrine. But 
 where it is something which, like lands, the law permits the 
 parties to contract about only in writing, if we look upon the 
 oral part as engrafting a defeasance on the written, it changes 
 it in violation of the rule, or if we look upon it as an added 
 agreement for a reconveyance, it attempts to do orally what 
 the statute says cannot so be done. Still, to the author, this 
 doctrine appears sound, but to rest on another form of rea- 
 soning, as follows. We shall see, in other connections, that the 
 statutes which require a writing to make a particular con- 
 tract good are construed to apply only to actual agreements, 
 not to those which the law creates.*^ And where the consid- 
 
 1 Odell V. Montross, 68 N. Y. 499 ; U. S. 289 ; Vandegrift v. Herbert, 3 
 Matthews v. Sheehan, 69 N. Y. 585 ; C. E. Green, 466 ; Madigan v. Mead, 31 
 McAnnulty v. Stick, 59 Iowa, 586; Minn. 94; King ». Warrington, 2 New 
 Carter v. Evang, 17 S. C. 458 ; Bettis v. Mex. 318 ; Reed v. Reed, 75 Maine, 264; 
 Townsend, 61 Cal. 333 ; Shear v. Rob- Votaw v. Diehl, 62 Iowa, 676. The 
 inson, 18 Fla. 379 ; Wallace p. Lewis, 60 cases to this proposition, a small pro- 
 Texas, 247 ; Pierce i". Fort, 60 Texas, portion of which are here cited, are mul- 
 464 ; Davis v. Brewster, 59 Texas, 93 ; titudinous. A few of them, principally 
 Loving V. Milliken, 59 Texas, 423 ; the older ones, deny this doctrine at law, 
 Huoncker v. Merkey, 6 Oat. Pa. 462 ; but admit it in equity ; most accept it in 
 Hartley's Appeal, 7 Out. Pa. 23 ; Um- both. 
 
 benhower v. Miller, 5 Out. Pa. 71 ; Nic- ^ Trink 7). Adams, 9 Stew. Ch. 485; 
 oils V. McDonald, 5 Out. Pa. 514 ; Hurst Hurst v. Beaver, 50 Mich. 612 ; Newhall ' 
 V. Beaver, 50 Mich. 612; Anthony v. u. Pierce, 5 Pick. 450 ; Friedley f. Ham- 
 Anthony, 23 Ark. 479; De Wolf v. ilton, 1 7 S. & R. 70 ; Mills a. Comstock, 
 Strader, 26 111. 225 ; Crane v. Buchanan, 5 Johns. Ch. 214. 
 29 Ind. 570; Lane v. Shears, 1 Wend. s Post, § 192-195. 
 433, 437 ; Babcock v. Wyman, 19 How. 
 64 
 
CHAP. VII.] SIMPLE CONTBACTS IN WHITING. § 176 
 
 eration of a conveyance, which can always be inquired into 
 by parol,^ is found to be a loan, so that to keep the prop- 
 erty when the loan is paid would be unjust, the law will 
 create the promise, not necessary to be in writing, to reconvey 
 on the payment of the loan, thus making of the transaction 
 a mortgage. 
 
 § 174. Subsequent Change. — At any time after a written 
 contract has been entered into, the parties may orally, on a 
 fresh consideration, vary or abrogate it ; ^ or they may sub- 
 stitute for it a new written one.^ And — 
 
 Discharge. — A parol discharge will be good even of a con- 
 tract required by the Statute of Frauds to be in writing.* 
 
 § 175. Imperfect. — Where, on the face of the writing, it 
 appears to be incomplete or imperfect as a contract, or to em- 
 brace only a part of the stipulations meant,^ oral evidence may 
 be introduced in connection with it, and from the two the ac- 
 tual contract will be determined.^ In such a case, the oral 
 proofs of the intent of the writing should be direct and dis- 
 tinct.'^ And to certain common writings and parts of contracts 
 this doctrine particularly applies. Thus, — 
 
 § 176. Receipts. — In general, receipts of payment, whether 
 embodied in written instruments or not, are deemed to be of 
 the imperfect sort, which, though prima facie evidence of 
 what they declare, may be explained or contradicted orally.^ 
 
 1 Ante, § 75. ler, 37 Mich. 161. And see Birce v. 
 
 2 Flanders v. Fay, 40 Vt. 316 ; Lister Bletchley, 6 Madd. 17. 
 
 V. Clark, 48 Iowa, 168 ; Roberts v. Wil- ' Wilson Sewing Machine Co. v. Eut- 
 
 kinson, 34 Mich. 129 ; Church v. Flor- ledge, 60 Iowa, 39. 
 
 ence Iron Works, 16 Vroom, 129 ; Burk- s Rollins v. Dyer, 16 Maine, 475; 
 
 ham V. Mastin, 54 Ala. 122 ; Maxfiold Marston v. Wilcox, 1 Scam. 270 ; Wal- 
 
 V. Terry, 4 Del. Ch. 618; Juilliard v. ters v. Odom, 53 Ga. 286; Smith v. 
 
 Chaffee, 92 N. Y. 529, 535. Holland, 61 N. Y. 635 ; Ryan v. Ward, 
 
 8 Ante, § 68 ;' Chrismau v. Hodges, 48 N. Y. 204 ; Hannan v. Oxley, 23 
 
 75 Misso. 413 ; Flanagin v. Hambleton, Wis. 519 ; Bryant v. Hunter, 6 Bush, 
 
 54 Md. 222 ; McDonongh v. Kane, 75 75 ; Walker v. Christian, 21 Grat. 291 ; 
 
 Ind. 181. Smith v. Schulenberg, 34 Wis. 41 ; 
 
 4 Goman v. Salisbury, 1 Vem. 240. Graves v. Key, 3 B. & Ad. 313 ; Winans 
 
 6 Ante, § 168. v. Hassey, 48 Cal. 634 ; Sears v. Wemp- 
 
 « Lathrop v. Bramhall, 64 N. Y. 365 ; ner, 27 Minn. 351 ; Swain v. Frazier, 8 
 
 Lash V. Parlin, 78 Misso. 391 ; Camp- Stew. Ch. 326 ; Dorman v. Wilson, 10 
 
 bell M. Short, 35 La. An. 447 ; Phelps w. Vroom, 474; Shoemaker v. Stiles, 6 
 
 Whitaker, 37 Mich. 72; Richards y.Ful- Out. Pa. 549; Pool v. Chase, 46 Texas, 
 
 5 65 
 
§ 178 IN GENEEAL WITH ILLUSTRATIONS. [BOOK I. 
 
 They are so even when expressed to be in full of all demands.^ 
 For example, the recital in a partnership contract that each 
 partner has contributed to the capital stock a specified sum 
 may be controlled in this way.^ And so may even a bank 
 certificate of deposit, but the evidence must be clear and 
 satisfactory.^ Where the writing is both a receipt and a con- 
 tract, it is only to the receipt part that this doctrine, ap- 
 plies.* A warehouse receipt may be of this sort, and then 
 the contract therein cannot be orally contradicted,* but the 
 rest can be.^ 
 
 § 177. Bill of Sale. — Ordinarily a simple bill of sale is of 
 the imperfect class, open to parol explanation.'^ But an in- 
 spection of its terms may show it not to be within this prin- 
 ciple ; or, if it goes further, and embodies a contract, oral 
 testimony as to it will be excluded.^ Again, — 
 
 § 178. Date. — The same applies to the date of the writing. 
 Prima facie it is the true date, but the real fact may be 
 shown.^ Therefore, for example, parties cannot validate a 
 contract they make on Sunday by dating it as of some other 
 
 207; Ellicott v. Barnes, 31 Kan. 170; Houghton v. Carpenter, 40 Vt. 588; 
 
 Eylar V. Read, 60 Texas, 387; Ditch Picard u. McCormick, 11 Mich. 68; Hil- 
 
 V. VoUhardt, 82 111. 134; Reading o. dreth v. O'Brien, 10 Allen, 104; Lins- 
 
 Traver, 83 111. 372 ; Pauley v. Weisart, ley v. Lovely, 26 Vt. 123 ; Filkins v. 
 
 59 Ind. 241. See Grumley «. Webb, 48 Whyland, 24 N. Y. 338; Hersom v. 
 
 Misso. 562. Henderson, 1 i"ost. N. H. 224. 
 
 1 Lee V. Lancashire, &c. Railway, ^ Smith v. Gibbs, 44 N. H. 335; 
 Law Rep. 6 Ch. Ap. 527 ; Guyette v. McCloskey v. McOormick, 37 111. 66. 
 Bolton, 46 Vt. 228 ; Connell v. Vander- ' Ante, § 114 ; Shaughnessey w. Lewis, 
 werken, 1 Mackay, 242; American 130 Mass. 355; Smith v. Porter, 10 
 Bridge Co. v. Murphy, 13 Kan. 35. Gray, 66 ; Perrin v. Broadwell, 3 Dana, 
 
 2 Lowe V. Thompson, 86 Ind. 503. 596 ; Plunkett v. Dillon, 4 Del. Ch. 198; 
 ' First National Bank v. Myers, 83 Eaton v. Trowbridge, 38 Mich. 454 ; 
 
 111. 507. Buchanan v. Tracy, 45 Misso. 437 ; 
 
 * Goodwin v. Goodwin, 59 N. H. Winn's Succession, 33 La. An. 1392; 
 548 ; Morris v. St. Paul, &c. Railway, Knisely v. Sampson, 100 111. 573 ; Potez 
 21 Minn. 91 ; Alcorn v. Morgan, 77 v. Glossop, 2 Exch. 191 ; Anderson v. 
 Ind. 184; Krutz v. Craig, 53 Ind. 561. Weston, 6 Bing. N. C. 296; Laws v. 
 See Williamson v. Reddish, 45 Iowa, Rand, 3 C. B. n. s. 442. See Seldon- 
 550. ridge v. Connable, 32 Ind. 375 ; Bich- 
 
 * Stewart v. Phoenix Ins. Co. 9 ards «. Betzer, 53 111.466. There is no 
 Lea, 104 ; Johnston v. Browne, 37 Iowa, presumption, from the date, as to when 
 200. a forged deed was delivered. Reming- 
 
 f Hughes V. Stanley, 45 Iowa, 622. ton Paper Co. v. O'Dougherty, 81 N. Y. 
 ' Hazard v. Loring, 10 Cush. 267, 474. 
 268 ; Irwin v. Thompson, 27 Kan. 643 ; 
 66 
 
CHAP. VII.] SIMPLE CONTEACTS IN WRITING. § 180 
 
 day.i The date of aa instrument with no date written in 
 may be orally established.^ 
 
 § 179. Void or Unintelligible. — Where, from any cause, 
 a written contract is void, — as, for example, where it is 
 unintelligible, — the party is permitted, if he can, to show 
 the oral understanding ; and, if it constitutes a complete and 
 unobjectionable contract, it will prevail. A void writing is 
 not a thing capable of oral contradiction, there is nothing to 
 contradict.3 
 
 § 180. The Doctrine of this Chapter restated. 
 
 All the contracts which may be made orally are equally 
 good in writing. But, unless they are sealed, they rank in 
 law only as parol contracts ; in other words, as simple con- 
 tracts. There are classes of contracts which, by special pro- 
 visions of law, must be in writing. To them the parties may 
 aflSx their seals if they choose ; and, though they are thus 
 made specialties, they are still written, within the laws which 
 require writing.* A writing may constitute a part of an oral 
 contract ; as, where it is a mere accompanying memorandum, 
 or where what was once a written contract has been varied 
 orally, or the like. Whether a transaction or form of words 
 has created one contract or more than one will depend upon 
 the intent of the parties, the subject, their words, and the 
 construction of law thereon. A written contract honestly 
 made, and meant by the parties to embrace their entire bar- 
 gain, may be confirmed by oral testimony,^ but it cannot thus 
 be contradicted. 
 
 1 Post, §543; Heller v. Crawford, * McKensie w. Farrell, 4 Bosw. 192. 
 37 Ind. 279. ' Southern Mut. Ins. Co. v. Trear, 
 
 2 Davis V. Jones, 17 C. B. 625. 29 Grat. 255. 
 ' Moulding v. Prussing, 70 111. 151. 
 
 67 
 
§ 183 IN GENERAL WITH ILLUSTRATIONS. [bOOK 
 
 CHAPTER VIII. 
 
 CONTRACTS CREATED BY LAW. 
 
 § 181. Introduction. 
 182-203. General Doctrine. 
 204-237. Illustrative Instances. 
 
 238. Doctrine of Chapter restated. 
 
 § 181. How Chapter divided. — We shall consider, I. The 
 General Doctrine ; II. Illustrative Instances. 
 
 I. The General Doctrine. 
 
 § 182. Fictions of Law. — One of the most interesting fea- 
 tures of our law is its fictions. Not quite all of them are 
 useful and wise, but most are, and some of them are so essen- 
 tial that they could be dispensed with only at great incon- 
 venience. Of the latter sort is the fiction to be explained in 
 this chapter. 
 
 § 183. Torts and Contracts. — The great mass of our law, 
 not all, is divided into two parts ; namely, contracts, and 
 those rights the violations whereof are termed torts. And 
 the procedure of the courts for its enforcement takes shape 
 accordingly. To accommodate the procedure, and render 
 the law itself more lucid, the fiction that the law creates 
 in certain circumstances a contract^ has been recognized, 
 rather than invented, by the tribunals. It is that — 
 
 ^ Terms and Classifleation. — Con- vides contracts into express and implied, 
 
 tracts created by law are often, perhaps "Express contracts," he says, "are 
 
 oftener than otherwise, confounded with where the terms of the agreement are 
 
 the implied contracts to be treated of in openly uttered and avowed at the time 
 
 the next two chapters, all being called of the making, as to deliver an ox, or 
 
 implied. Blackstone, for example, di- ten loads of timber, or to pay a stated 
 
 68 
 
CHAP, vin.] 
 
 CREATED BY LAW. 
 
 §185 
 
 § 184. Defined. — When the law lays on one a duty to 
 another, it creates a promise from the former to the lat- 
 ter to discharge the duty.^ The limits of the doctrine are, 
 that, — 
 
 § 185. Limits of Doctrine. — Where, from the nature of 
 the case, not merely from inability of the party ,2 there could 
 not be a contract in fact, the law does not undertake to create 
 the impossible. Thus, since a tort would not be a tort if the 
 party injured consented,^ since also the tort-feasor did not 
 consent in fact as to a contract, and since an actual contract 
 requires mutual consent, the law does not transmute into a 
 contract the tort which neither was nor could be such in fact. 
 Again, since two inconsistent contracts cannot exist together, 
 and since there is no need for two which coincide, if the 
 
 price for certain goods. Implied are 
 snch as reason and justice dictate, and 
 which therefore the law presumes that 
 every man undertakes to perform. As, 
 if I employ a person to do any busi- 
 ness for me or perform any work, the 
 law implies that I undertook, or con- 
 tracted, to pay him as much as his labor 
 deserves." 2 Bl. Com. 443. The con- 
 tracts which Blackstone thus indicates 
 in illustration of the implied may quite 
 properly be called by the name. But 
 where the law compels a man to respond 
 as to a contract against his dissent ut- 
 tered simultaneously with the making, — 
 as, for example, where it holds him to 
 pay a tradesman for necessaries fur- 
 nished his discarded wife at the very in- 
 stant he is notifying the tradesman that 
 he will not pay, 1 Bishop Mar. & Div. 
 § 555 ; Central Bridge v. Abbott, 4 
 Cush. 473, 475, — the term "implied" 
 seems less accurately to designate this 
 legal conclusion than "created." Still, 
 in the many sorts of transaction which 
 are subject to this one legal result, there 
 are great diversities ; and it is not al- 
 ways plain whether a particular instance 
 should be classed with the implied or the 
 created contracts. I by no means assume 
 that the classifications of these chapters 
 are perfect ; they are such as seemed 
 
 convenient. To the learner, this mere 
 matter of classification is not of prime 
 importance; for, except as to a few 
 questions, it does not affect the law 
 itself. 
 
 1 Concerning Definitions. — This 
 definition, like all others in the law, pro- 
 ceeds, not from any single adjudication, 
 since no one judgment of a court ever 
 did or could create or establish a defini- 
 tion, but from all the decisions on the 
 subject, and all the legal reasons relating 
 thereto, combined. For a definition in 
 the law is the epitomized law which it 
 defines. A text-writer may adopt as his 
 own a form of definition given by some 
 judge or preceding author, or he may 
 condense anew the law into a definition, 
 as the exigencies of the particular in- 
 stance indicate ; but, whether the one or 
 the other, the definition is simply his 
 own judgment of the effect which the 
 condensation produces. In the strict 
 sense, therefore, a definition in the law 
 has no weight in authority ; it is not 
 the law, but the author's judgment of 
 what the law in epitome is. And see 
 post, § 217, note. 
 
 2 Post, § 200. 
 
 8 Peacock v. Terry, 9 Ga. 137 ; Rey- 
 nolds V. Penton, 2 Philad. 298. 
 
 69 
 
§ 187 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 parties have covered a particular transaction by their actual 
 contract, the law will not create one.^ To be more specific, — 
 
 § 186. As to Torts. — There is no authority for deeming 
 that the law will, under any circumstances, treat that as a 
 contract which in fact was a tort ; and both reason and the 
 adjudications 2 exclude such an assumption. An apparent 
 exception confirms this rule ; namely, that, in certain cases, 
 principally where the tort-feasor has converted into money 
 the things which he took by wrong, the person injured may 
 waive the tort and sue as on a contract created by law.^ 
 
 § 187. As to where there is Contract in Pact. — Obviously, 
 to follow up what was just stated,* if a transaction proceeded 
 on the express terms of an agreement, and they were not 
 departed from, those terms will furnish the limits of the 
 rights and responsibilities of the parties ; and the law, having 
 no occasion to, will not create others.^ There is authority 
 for qualifying this proposition by another ; namely, that, if 
 the express contract is not under seal, and embraces only 
 what the law would imply, a party may sue on it or the im- 
 plied contract at his election.® But where, as in this case, 
 the express contract supplies all needs, completely covering 
 the transaction, does the law commit the folly of creating the 
 needless ? Is there any implied contract ? In reason, no.'' 
 
 1 Van Pleet v. Van Fleet, 50 Mich. W. 444, 448 ; Oughton v. Seppings, 1 
 1 ; Commercial Bank v. Pfeiffer, 22 B. & Ad. 241 ; Hambly v. Trott, Cowp. 
 Hun, 327 ; Pontifex v. Midland Kail- 372 ; Sraitli v. Baker, Law Rep. 8 C. P. 
 way, 3 Q. B. D. 23, 27. " Promises in 350. 
 
 law only exist where there is no express * Ante, § 185. 
 stipulation between the parties." Bui- ^ Toussaint v. Martinnant, 2 T. E. 
 
 ler, J. in Toussaint v. Martinnant, 2 100 ; North v. Nichols, 37 Conn. 375 ; 
 
 T. K. 100, 105. Whiting v. Sullivan, 7 Mass. 107; Dra- 
 
 2 McCoun V. New York Central, &o. per v. Randolph, 4 Harring. Del. 454 ; 
 Railroad, 50 N. Y. 176; Jones v. Hoar, Voorhees v. Combs, 4 Vroom, 494; 
 5 Pick. 285; Schweizer v. Weiber, 6 Holden Steam Mill v. Westervelt, 67 
 Rich. 159; Carson River, &c. Co. v. Maine, 446. 
 
 Bassett, 2 Nev. 249; Balch v. Patten, ^ Qibbs v. Bryant, 1 Pick. 118; 
 
 45 Maine, 41 ; Fuller v. Duren, 36 Princeton, &c. Turnpike v. Gulick, 1 
 
 Ala. 73. Harrison, 161. 
 
 8 Gilmore v. Wilbur, 12 Pick. 120, ' And see Walker v. Brown, 28 111. 
 
 124 ; Jones v. Baird, 7 Jones, N. C. 152 ; 378 ; Dermott v. Jones, 2 Wal. 1 ; Hyde 
 
 Strother v. Butler, 17 Ala. 733 ; Bethle- v. Liverse, 1 Cranch C. C. 408 ; Mau- 
 
 hem V. Perseverance Fire Co. 31 Smith, pin v. Pic, 2 Cranch C. C. 38 ; Brockett 
 
 Pa. 445, 460 ; Eodgers v. Maw, 15 M. & v. Hammond, 2 Cranch C. C. 56 ; Brown 
 70 
 
CHAP, vin.] 
 
 CEEATED BY LAW. 
 
 §189 
 
 § 188. Express Contract Voidable or Void. — Obviously a 
 void contract is the same as none,^ and a voidable one may be 
 so treated. Therefore in either case there is room for the law 
 to create what the parties have not supplied. So that, for 
 example, if an express agreement fails by reason of the con- 
 sideration being illegal, one who in reliance upon it has bene- 
 fited the other by some lawful thing may recover pay therefor, 
 on a contract which the law will create.^ Or if necessaries 
 are furnished a minor or insane person on terms agreed, yet 
 not binding by reason of the minority or insanity, the party 
 may recover of the one in law liable to pay, not what the 
 apparent contract provides, though it may be looked to, but 
 what they were reasonably worth.^ 
 
 § 189. Nature of the Created Contract. — For most purposes 
 
 V. Perry, 14 Ind. 32 ; Eggleston v. Buck, 
 24 111. 262; Western v. Sharp, 14 B. 
 Monr. 177; Chandler v. The State, 5 
 Har. & J. 284. Further of this.— 
 In Met. Con. 7, 8, the exception stated 
 in the text as doubtful is accepted, and 
 others are added ; namely, " If the terms 
 of an express agreement have been per- 
 formed, so as to leave a mere simple 
 debt or duty between the parties, the 
 plaintiff may recover on the implied 
 contract." This proposition is familiar 
 in the common law of pleading, and by 
 it the plaintiff is enabled greatly to 
 shorten his declaration. But the im- 
 plied contract grows out of a new state 
 of facts, and it is not coincident with 
 the express one. Its creation by the law 
 was not absolutely indispensable to jus- 
 tice, yet it was highly convenient, and 
 practically useful. Another " excep- 
 tion" stated by the author is that, 
 " when both parties have departed from 
 the special agreement, the law will raise 
 an implied one." This instance is fur- 
 ther than the other from the creation of 
 a contract coinciding with the express 
 one. Here the thing created grows dis- 
 tinctly out of new facts, without which 
 the creation would not be. Again, 
 " when a party has failed to perform his 
 express contract according to its terms, 
 but has performed it defectively, and 
 
 cannot maintain an action thereon, yet 
 if he has acted in good faith he may re- 
 cover of the other party, on an implied 
 contract, the amount of the benefit, if 
 any, which , that party has received," 
 though it is otherwise iif what he did was 
 in bad faith. Here also there was no 
 express contract; for, though there had 
 been one, it was set aside. Therefore 
 this case furnishes no exception to the 
 rule, that the law will not create a con- 
 tract out of a transaction which has an 
 express one to govern it. This author 
 goes on to observe, that, though the law 
 will not, in the absence of any legal 
 duty resting on a party, imply a con- 
 tract contrary to his declaration, " this 
 can be true only where there is no legal 
 duty paramount to " his will. If "such 
 duty exists, a promise will be implied 
 even against the party's strongest pro- 
 testations." And see ante, § 183, note. 
 There can be no doubt of either branch 
 of this proposition. It was affirmed in 
 full in Earle v. Coburn, 130 Mass. 596, 
 598. " The law," where it has imposed 
 the duty on the objecting party, " prom- 
 ises," said Lord, J. " in his stead." 
 
 1 Gist V. Smith, 78 Ky. 367. 
 
 2 Thurston v. Percival, 1 Pick. 415. 
 
 8 Parsons v. Keys, 43 Texas, 557; 
 Ballard v. McKenna, 4 Rich. Eq. 358 ; 
 Hyer v. Hyatt, 3 Cranch C. C. 276. 
 
 71 
 
§ 193 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 a contract which the law has created is not distinguishable, 
 except in the mode of proof, from one formerly entered into 
 between the parties.^ Thus, — 
 
 § 190. In Pleading. — Under the common-law rules, con- 
 tracts created by law and all implied contracts are alleged in 
 a declaration in the same manner as express ones.^ For ex- 
 ample, the form of action may be assumpsit ; ^ and then, as in 
 other cases of assumpsit, a consideration must be alleged.* 
 There are statutory rules under which this is otherwise. 
 Still, — 
 
 § 191. Meaning of " Contract." — Almost universally, both in 
 legal and popular language, the word " contract" is employed 
 to denote an undertaking voluntarily entered into between 
 the parties ; not drawing into contemplation any creation of 
 the law. We have seen that so are the definitions in all our 
 books of the law preceding in date the present work.^ Such 
 also are the definings both in our law dictionaries and in the 
 general dictionaries of the language. Hence, properly, — 
 
 § 192. In statute. — The word in a statute is ordinarily 
 interpreted in the same way, as referring only to contracts 
 actually or presumably made in fact, and not including these 
 creations of the law.® It has even been held not to com- 
 prehend a recognizance,' though we have seen^ that a re- 
 cognizance is, in the law of contracts, to be reckoned as a 
 contract. To illustrate, — 
 
 § 193. Statute of Frauds. — The Statute of Frauds, requir- 
 ing contracts on some particular subjects to be in writing, 
 
 1 "The difference between express 470; Downing v. Freeman, 13 Maine, 
 and implied contracts is merely a dif- 90 ; Wood v. O'Kelley, 8 Cush. 406 ; 
 ference in the mode of proof." Lord Monson v. Williams, 6 Gray, 416. 
 Denman, C. J. in Church v. Imperial * Wingo v. Brown, 12 Eich. 279. 
 Gas-light and Coke Co. 6 A. & E. 846, 6 Ante, § 22, note. 
 
 860. 6 For example, McCoun v. New York 
 
 2 1 Chit. PI. 302 ; "Wingo v. Brown, Central, &c. Eailroad, 50 N. Y. 176, 
 12 Rich. 279; Bailey v. Bussing, 29 180-182. Meohanio's Lien. — It is 
 Conn. 1. held that a mechanic's lien maybe en- 
 
 8 Johnson v. Reed, 3 Eng. 202 ; forced on an implied contract. Foerder 
 
 Ridgeway v. Toram, 2 Md. Ch. 803; v. Wesner, 56 Iowa, 157; Neilson v. 
 
 Wyman v. American Powder Co. 8 Iowa Eastern Eailroad, 51 Iowa, 184. 
 Cush. 168, 180; Pawlet v. Sandgate, 19 ' Gay v. The State, 7 Kan. 394. 
 
 Vt. 621 ; Stimpson v. Sprague, 6 Greenl. » Ante, § 144-146. 
 
 72 
 
CHAP. VIII.] CREATED BY LAW. § 195 
 
 is construed as not extending to those which are created by- 
 law, or by special statutes, not depending on the will of the 
 parties.^ Within this rule are — 
 
 § 194. Resulting Trusts. — A provision of this statute makes 
 writing necessary in agreements affecting interests in lands. 
 But, as it is not applied by the courts to the creations of the 
 law, if land is bought and paid for with the money of one 
 man and the deed is made to another, and there is no evi- 
 dence or presumption that a gift was intended, the law will 
 imply a promise by the grantee to hold it in trust for the 
 person whose money procured the conveyance. This is called 
 a resulting trust.^ In some of the States, the statute ex- 
 pressly excepts resulting trusts ; but, whether the exception 
 is in the statute or not, the consequence is the same ; namely, 
 that the trust thus created by law is good, though there is no 
 writing declaring it, and it may be even established by verbal 
 evidence.^ By a like construction, — 
 
 § 195. Mortgage. — It was shown in the last chapter* that, 
 notwithstanding the Statute of Frauds, and notwithstanding 
 the rule of evidence which forbids a writing to be varied by 
 oral proofs, if the consideration of a deed of land was a loan, 
 which the law requires the grantee to repay, it, to follow the 
 better reasoning, will create a promise from him to the grantor 
 to repay it, thus converting the conveyance absolute on its 
 face into a mortgage. The word " contract " or " agreement " 
 in the statute being construed to refer only to what actually 
 transpired between the parties, not in any degree to the law's 
 
 1 Thompson v. Blanchard, 3 Comst. = 4 Kent Com. 305, 306; Caple v. 
 335 ; Doolittle v. Dininny, 31 N. Y. 350 ; McCoUum, 27 Ala. 461 ; Cook «. Ken- 
 Smith w. Bradley, 1 Root, 150; Goodwin nerly, 12 Ala. 42; McGuire u. Ramsey, 
 V. Gilbert, 9 Mass. 510. See post, § 309. 4 Eng. 518; Dean v. Dear, 6 Conn. 285 ; 
 
 2 2 Bishop Mar. Women, § 118 et Peabody w. Tarbell, 2 Cush. 226; Hanft 
 seq. ; Follansbe v. Kilbreth, 1 7 111. 522 ; t'. Howard, 3 Jones Eq. 440 ; James t'. 
 Chastain v. Smith, 30 6a. 96 ; Brown Fulcrod, 5 Texas, 512 ; Leakey v. Gun- 
 V. Dwelley, 45 Maine, 52 ; Smith v. Bo- ter, 25 Texas, 400 ; Cload v. Ivie, 28 
 quet, 27 Texas, 507 ; Gee v. Gee, 32 Misso. 578 ; Earriugton v. Barr, 36 N. H. 
 Missis. 190; Hatton v. Landman, 28 86; Benson v. Matsdorf, 11 Johns. 91 ; 
 Ala. 127 ; Partridge v. Hayens, 10 Paige, Malin v. Malin, 1 Wend. 625 ; Slaymaker 
 618; Donglass v. Brice, 4 Rich. Eq «. St. John, 5 Watts, 27; post, §1216. 
 322 ; Shepherd v. White, 10 Texas, 72; * Ante, § 173. 
 
 Goldsberry v. Gentry, 92 Ind. 193. 
 
 73 
 
§ 199 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 creation, there is nothing therein to intercept this consequence 
 of the law. Again, — 
 
 § 196. In Express Contract. — A written contract is inter- 
 preted similarly to a statute.^ Therefore express terms in it 
 are not applied to restrain the law in making its creations. 
 Thus, — 
 
 § 197. Bankruptcy as to Assignment of Policy. — An as- 
 signment in bankruptcy is a contract created by the law of 
 bankruptcy. Hence an insurance policy, with a clause mak- 
 ing it void if assigned without the consent of the insurer, does 
 not become so on an assignment in bankruptcy, executed by 
 the proper officer.^ Moreover, — 
 
 § 198. Condition in Covenant. — A lease with the condition 
 that the lessee shall not " let, set, assign, transfer, make over, 
 barter, exchange, or otherwise part with this indenture," does 
 not prevent the leased premises being taken in execution, even 
 though the judgment was confessed on a warrant of attorney 
 from the lessee. By express words, it would be in the power 
 of the parties to avoid this result.^ These illustrations are 
 sufBcient for the conclusion which they indicate ; namely, — 
 
 § 199. Not Written or Unwritten. — A contract created by 
 law — not merely presumed, but created * — constitutes a 
 class by itself ; being deemed neither written nor unwritten. 
 Not only, as we have just seen, may it be superinduced by 
 the courts on a transaction as to which the parties could not 
 contract except by writing,^ but it may be so also where they 
 
 1 Bishop "Written Laws, § 4, 77, 98 a. lease as renewed, either for two years, or 
 
 ^ Starkweather v. Cleveland Ins. Co. for one. The case seems plain, and the 
 
 2 Abb. U. S. 67. decision is unquestionably correct. But 
 
 8 Mitchinson v. Carter, 8 T. E. 57. the learned judge, in delivering the opln- 
 
 ^ Ante, § 183, note. ion, said some things not quite consistent 
 
 6 An Inaccurate Dictum. — In with what is abundantly established. 
 
 Chase v. Second Avenue Railroad, 97 Thus, " The law did not imply a renewal 
 
 N. Y. 384, it was held that the lessee, of the contract for a term of two years, 
 
 in writing, of the exclusive privilege because such a contract, which was not 
 
 to put advertisements in the defend- to be performed and could not be per- 
 
 ant's cars for two -years, did not, by formed within one year, not being in 
 
 exercising the privilege without objec- writing, was void under the Statute 
 
 tion from the defendant for a short time of Frauds. The law will not imply an 
 
 after the two years expired, acquire a unwritten contract which the parties 
 
 right by implication of law to treat the themselves could not make without writ- 
 
 74 
 
CHAP. VIII.] CREATED BY LAW. § 203 
 
 are persons iacapable of binding themselves by contract in 
 any form. For example, — 
 
 § 200. Mental and Legal Capacity. — While an express con- 
 tract requires mental and legal capacity in the party, the law- 
 can create one without. Illustrations of this appear in other 
 connections ; ^ as, in the cases of infants and insane persons, 
 whom the law often binds by contracts which it creates, where 
 they could not bind themselves. Thus, — 
 
 § 201. Infant for "Wiie's Ante-nuptial Debts. — An infant 
 cannot contract to pay the debts of another.^ Yet, if he 
 marries, the common law (it is otherwise under various re- 
 cent statutes) creates for him the contract to pay the ante- 
 nuptial debts of his wife.^ Again, — 
 
 § 202. Infant accepting Deed-poll. — As an infant has the 
 capacity to accept an estate, he is bound by any conditions in 
 the deed conveying it to him.* Plainly, therefore, if the deed 
 has recitals of things to be done by the grantee, the law, 
 which would found a promise upon them were he of age, will 
 do it equally in the case of an infant. But, further, — 
 
 § 203. Law's Promise not a Specialty — Deed-poll. — From 
 the doctrine of the deed-poll, we derive the further proposi- 
 tion that the law's promise is not a specialty ; just as, we have 
 seen," it is neither a written nor an oral contract. If one ac- 
 cepts a deed-poll conveying lands, and it recites that he shall 
 do such and such things, the law creates a promise from him 
 to do them ; but the promise is not, like the deed-poll, under 
 
 ing. It will sometimes imply an obliga- that is, where the words were really in- 
 
 tion on the part of a person who has re- terchanged by speech or by writing, — 
 
 ceived a benefit under a contract con- there can be no objection to these obser- 
 
 demnedby the Statute of Frauds, to make rations But if otherwise, the authori- 
 
 compensation to the other party. An ties which sustain the text of the several 
 
 implied contract is one which the law connected sections above are conclusive 
 
 infers from the facts and circumstances that he spoke.unadvisedly. 
 
 of the case; but it will not be inferred, i Ante, § 188; post, § 227, 232, 234, 
 
 so far as I can conceive, in any case 235. 
 
 where an express contract would for 2 Maples v. Wightman, 4 Conn. 376 ; 
 
 any reason be invalid. The law will not , Nightingale v. Withington, 15 Mass. 272, 
 
 make that valid without a writing which 274. 
 
 the law requires should be in writing." » Butler v. Breck, 7 Met. 164. 
 
 p. 388, 389. If the learned judge here * Parker i>. Lincoln, 12 Mass. 16, 18. 
 
 refers to a presumed actual contract, — ^ Ante, § 199. 
 
 75 
 
§ 206 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 seal. It is not a covenant, but a simple-contract promise, on 
 which the action of assumpsit, but not of covenant, may be 
 maintained.^ Nor yet is the promise deemed to be in writing, 
 for it is not within the Statute of Frauds ; it is, let us repeat, 
 simply a promise in law.'^ 
 
 II. Illustrative Instances. 
 
 § 204. Already, — in the foregoing sub-title, we have had, 
 in connection with the doctrine, many illustrations of it. So 
 this sub-title will be little else than a continuation of the 
 other. 
 
 Law's Command. — The law, by placing its command in 
 whatever form upon one to do a thing for the benefit of an- 
 other or the State, creates the promise from the former to the 
 latter to do it ; as, for example, in the words of Blackstone, 
 " whatever the laws order any one to pay, that becomes in- 
 stantly a debt, which he hath beforehand contracted to dis- 
 charge." 3 Thus, — 
 
 § 205. statutory Duty. — When a statute imposes on one a 
 duty, the law creates a promise from him to the party to be 
 benefited thereby to perform it.* To illustrate, — 
 
 § 206. Tolls. — A person who passes a toU-gate evading 
 the statutory toll may be proceeded against under a promise 
 of payment which the law will make for him. And it is so 
 even where the statute has provided a penalty.^ Further to 
 illustrate, — 
 
 1 Harnman v. Park, 55 N. H. 471 ; Met. 522, 526 ; Bowen v. Hoxie, 137 
 Mellen v. "Whipple, 1 Gray, 317 ; Brewer Mass. 527, 531. 
 
 V. Dyer, 7 Gush. 337, 340; Guild v. * Hillsborough v. Londonderry, 43 
 Leonard, 18 Pick. 511; Nugent r. Riley, N. H. 451; Anonymous, 6 Mod. 27; 
 1 Met. 117; Newell v. Hill, 2 Met. 1 80 ; "Waller v. Bank of Ky. 3 J. J. Mar. 201 ; 
 Rex B. Arneshy, 3 B. & Aid. 584, 587 ; Bridgen v. Cheever, 10 Mass. 450 ; Paw- 
 Burnett v. Lynch, 5 B. & C. 589, 602 ; let v. Sandgate, 19 "Vt. 621 ; Tilson v. 
 Martin v. Drinan, 128 Mass. 515 ; "Wil- "Warwick Gas Light Co. 4 B. & C. 962, 
 lenborg v. Illinois Central Railroad, 11 967; Goody v. Penny, 9 M. & W. 687, 
 Bradw. 298; 1 Chit. PI. 104. But see 691 ; Swansea v. Hopkins, 8 M. & W. 
 AtlanticDockCo. K.Leavitt, 54N. Y.35. . 901; Shepherd v. Hills, 11 Exch. 55, 
 
 2 Goodwin v. Gilbert, 9 Mass. 510, 63, 67. 
 
 514; Harriman v. Park, supra, Smith, ' New Albany, &c. Plank Road v. 
 
 J., at p. 472. Lewis, 49 Ind. 161 ; Central Bridge v. 
 
 « 3 Bl. Com. 160 ; Gray v. Bennett, 3 Abbott, 4 Gush. 473. 
 76 
 
CHAP. VIII.] CREATED BY LAW. " § 208 
 
 § 207. Compensation for Statutory Duty. — To some ex- 
 tent, yet limited by provisions in our constitutions, the legis- 
 lature of a State may require of the people personal services 
 for purposes designated. There are, connected with this pro- 
 position, questions not within the scope of the present work, 
 and the courts in discussing those within it have not always 
 employed reasons^ quite considerately. But the reasoning 
 which the present elucidations suggest, leading to the results 
 arrived at by the tribunals, is, that when the legislature hav- 
 ing authority imposes on one a duty, it creates the promise 
 from him to discharge it ; so that, being under the obligation, 
 he can claim no pay for doing the duty, and any pay given 
 him is a mere gratuity .^ By reason of which, a statute may 
 at the legislative pleasure vary or take away, as to future 
 services, an established compensation. Thus, — 
 
 § 208. Official Persons. — Every citizen is under obligation, 
 when duly required, to accept a public office and discharge its 
 duties.^ Therefore, following the above reasoning, a public 
 officer is, in the absence of any constitutional regulation of the 
 question, entitled to no fees or other pay, except what is pro- 
 vided by the statutes ; and the legislature may at will diminish 
 so much of a compensation which it has established as has not 
 yet been earned, or take it away, or impose additional duties 
 without added pay, or abolish the office.* A legislative act 
 creating an office, or fixing a salary, is not a " contract " 
 within the provision of the Constitution of the United States ^ 
 forbidding the States to pass laws " impairing the obligation 
 of contracts." ^ And except under a constitutional guaranty. 
 
 1 Ante, § 12, 14-16. Ind. 32 ; Haynes v. The State, 3 Humph. 
 
 2 Anderson v. Jefferson, 25 Ohio 480; Farwell v. Kockland, 62 Maine, 
 State, 13; The State v. Baldwin, 14 296; Crittenden v. Crump, 25 Ark. 
 S. C. 135; Cincinnati, &c. Railroad v- 235; Kitchell v. Madison, 4 Scam. 163; 
 Lee, 37 Ohio State, 479. People v. Campbell, 3 Gilman, 466 ; 
 
 8 1 Bishop Crim. Law, § 246, 458- Barker v. Pittsburgh, 4 Barr, 49 ; Joliet 
 
 464. V. Tuohey, 1 Bradw. 483 ; ante, § 47. 
 
 * Hall V. The State, 39 "Wis. 79; ^ Const. U. S. art. 1, § 10. 
 Carlyle v. Sharp, 51 HI. 71 ; People v. « The State v. Smedes, 26 Missis. 47 ; 
 Devlin, 33 N. Y. 269 ; Andrews v. Unit- Swann v. Buck, 40 Missis. 268 ; Hobo- 
 ed States, 2 Story, 202 ; Turpen v. Tip- ken v. Gear, 3 Dutcher, 265. And sea 
 ton, 7 Ind. 172; Miami v. Blake, 21 Marden u. Portsmouth, 59 N. H. 18. 
 
 77 
 
§ 211 IN GENERAL WITH ILLUSTEATIONS. [BOOK I, 
 
 there can be no contract, express or implied, for the perma- 
 nence of the salary of a public officer.^ Again, — 
 
 § 209, Paupers. — If a statute has imposed on a town or 
 county the duty of rendering support to paupers, the fore- 
 going reasoning shows that, after it has furnished the support 
 in a particular instance, thus discharging its own obligation, 
 it can recover therefor nothing of any other body or person. 
 The common illustration is where the pauper is found after- 
 ward in possession of property, or his estate is so, upon his 
 death ; and it is held that, in the absence of fraud, there is no 
 implied promise whereon to base an action for pay. Another 
 form of reasoning, leading to the same result, is to regard the 
 relief as an executed gift;^ which, therefore, cannot be re- 
 claimed.^ Now, — 
 
 § 210. Gift. — In all cases of a gift, whether of money, 
 goods, services, or anything else, made perfect by the delivery 
 of the thing given,* there is nothing out of which the law 
 can create a promise. And it is believed that a contract will 
 never be implied where the consideration was originally in- 
 tended for a gift.^ Thus, — 
 
 § 211. Pay another's Debt. — One's voluntary payment of 
 another's debt is like any other gift. If accepted by the 
 creditor in discharge of the debt, it has that effect in law,^ 
 but the person paying has no claim upon the debtor. For, in 
 our law, whatever may be the rule in other systems of juris- 
 prudence, no one can make himself the creditor of another 
 
 1 Bishop Written Laws, § 178a; Mass. 85, 90; Osier v. Hobbs, 33 Ark. 
 Koontz V. Franklin, 26 Smith, Pa. 154. 215 ; French v. Smith, 58 N. H. 323; 
 
 2 Ante, § 82. Keiser v. The State, 82 Ind. 379. 
 
 8 Stow V. Sawyer, 3 Allen, 515, 517 ; ^ Martin v. Quinn, 37 Cal. 55 ; Har- 
 
 Bremer v. Curtis, 54 Iowa, 72 ; Deer- rison v. Hicks, 1 Port. 423. In matter 
 
 isle V. Eaton, 12 Mass. 328. of mere pleading, it is said that accord 
 
 ^ Ante, § 82 ; Sanborn v. Goodhue, and satisfaction, where the satisfaction is 
 
 8 Post. N. H. 48; Biddle v. Carraway, laid as from a stranger, is not good. 
 
 6 Jones Eq. 95. Edscombe v. Rodd, 5 East, 294 ; Clow 
 
 s Whaley v. Peak, 49 Misso. 80 ; v. Borst, 6 Johns. 37 ; Grymes v. Blo- 
 
 Schnell v. Schroder, Bailey Eq. 334 ; field, Cro. Eliz. 541 ; Daniels v. Hallen- 
 
 Safety Deposit Life Ins. Co. v. Smith, beck, 19 "Wend. 408 ; Stark v. Thomp- 
 
 65 HI. 309 ; Rockford, &c. Railroad v. son, 3 T. B. Monr. 296, 302. As to 
 
 Sage, 65 III. 328 ; Watson v. Ledonx, 8 which, and supporting the text, see 2 
 
 La. An. 68; Davenport v. Mason, 15 Chit. Con. Uth Am. ed. 1133. 
 
 78 
 
CHAP. VIII.] CREATED BY LAW. § 215 
 
 who does not in fact or by legal implication consent.^ To 
 this there is a single exception, limited to the law-merchant ; 
 namely, — 
 
 § 212. Paying supra Protest. — A person who accepts and 
 then pays, or pays without accepting, supra protest, a dishon- 
 ored bill of exchange, has his remedy over against the drawer 
 or other party for whose honor he interposed, though he was 
 not requested, and was not the agent of such party .^ Still, — 
 
 § 213. Under Obligation. — Consistently with the foregoing 
 doctrine, if one who is under any obligation, of a sort recog- 
 nized in a court either of law or of equity, makes, pursuant 
 thereto, a payment on the account of another, the law creates 
 a promise from the latter to reimburse him.^ But a mere 
 moral obligation will not satisfy this rule.* The common 
 illustration is — 
 
 § 214. Suretyship. — A person who has become surety for 
 another is, if he discharges the debt of his principal, entitled 
 to recover of him what he paid, on a contract which the law 
 will imply, though nothing on the subject was said when the 
 suretyship was entered iuto.^ Again, — 
 
 § 215. Save own Property. — Where one's own property 
 can be preserved only by paying the debt of another, the law 
 will create, on its payment, the promise from the debtor to 
 reimburse the payer.^ Thus, if, after goods are bought, there 
 
 1 Johnson v. Royal Mail Steam- ^ 3 Kgj,t Com. 87; Bayley Bills, 5 th 
 
 packet. Law Rep. 3 C. P. 38, 41 ; Exall Eng. ed. 178, 325, 326; Byles Bills, 
 
 V. Partridge, 8 T. R. 308, 310 ; Sleigh v. 150-154 ; Leake v. Burgess, 13 La. An. 
 
 Sleigh, 5 Exch. 514 ; South Scituate v. 156. 
 
 Hanover. 9 Gray. 420 ; Junkins v. Union ^ Hutton v. Eyre, 6 Taunt. 289, 296. 
 
 School District, 39 Maine, 220 ; Ban- ^ Atkins v. Banwell, 2 East, 505. 
 
 croft V. Abbott, 3 Allen, 524 ; Little v. Compare with ante, § 44. 
 
 Gibbs, 1 Southard, 211; Jones v. Wil- « Copis v. Middleton, Turn. & B. 
 
 son, 3 Johns. 434 ; Menderback v. Hop- 224 ; Gibbs v. Bryant, 1 Pick. 118, 121 ; 
 
 kins, 8 Johns. 436 ; Munroe v. Easton, 2 Powell v. Smith, 8 Johns. 249 ; Hassin- 
 
 Johns. Gas. 75 ; Beach v. Vandenburgh, ger v. Solms, 5 S. & R. 4, 8 ; Ward v. 
 
 10 Johns. 361 ; Richardson v. Williams, Henry, 5 Conn. 595 ; Appleton v. Bas- 
 
 49 Maine, 558; Woodford v. Leaven- com, 3 Met. 169; Kimble v. Cummins, 
 
 worth, 14 Ind. 311; Oden v. Elliott, 10 3 Met. Ky. 327; Exall v. Partridge, 8 
 
 B. Monr. 313; Winsoru. Savage, 9 Met. T. B. 308, 310; Clay v. Severance, 55 
 
 346 ; Lewi.'! v. Lewis, 3 Strob. 530 ; Vt. 300. 
 
 Blanchard w. First Association of Spirit- ^ Exall v. Partridge, 8 T. R. 308; 
 
 ualists, 69 Maine, 202. Cole v. Malcolm, 66 N. Y. 363. 
 
 79 
 
§ 216 IN GENERAL WITH ILLUSTBATIONS. [BOOK I. 
 
 is discovered on them a lien which was placed by the seller, the 
 latter will be under the law's promise to repay, to the buyer, 
 what he pays to lift the lien.^ So, also, if an innocent pur- 
 chaser of goods which were imported in violation of the 
 revenue laws, is compelled to pay money to prevent their 
 forfeiture, he may recover it of the seller.^ 
 
 § 216. Contribution. — When persons are under equal obli- 
 gation to do a thing not violative of law, and one of them 
 does it, if there is no circumstance rendering the equities be- 
 tween them otherwise than equal, and no express agreement, 
 the doer is entitled, under a promise which the law creates, 
 to recover such sums of his several companions as shall leave 
 the burdens equal.^ This is the familiar rule as between 
 sureties* and other joint promisors,^ where one has discharged 
 more than his proportion of a debt ; and it applies also in 
 other like cases.^ If there is an express agreement, it pre- 
 vails, even though made by parol ;^ so likewise other equities 
 in the particular case may vary the result.^ But, since even 
 an express promise founded on a consideration immoral, ille- 
 gal, or contrary to public policy is void,^ the law will not 
 create a contract between its violators ; ^^ so that, for example, 
 if execution on a judgment against several persons for a tort 
 is satisfied out of the efifects of one, he cannot compel contri- 
 bution from his co-defendants.^^ This exception does not pre- 
 
 1 Alford V. Cobb, 28 Hun, 22. » Ante, § 59. 
 
 2 Summers v. Clark, 29 La. An. 93. i" Nichols v. Nowling, 82 Ind. 488 ; 
 ' Dimes v. Arden, 6 Nev. & M. 494; Miller v. Fenton, 11 Paige, 18; Vose 
 
 Fowler w. Donovan, 79 111. 310 ; Ejncaid w. Grant, 15 Mass. 505, 521; Hunt v. 
 
 V. Hocker, 7 J. J. Mar. 333. Lane, 9 Ind. 248. 
 
 * 1 Story Eq. § 493, 499 d ; Robert- " Merryweather v. Nixan, 8 T. R. 
 
 son w. Deatherage, 82 111.511; Wells u. 186, Lord Kenyon, C. J. observing. 
 
 Miller, 66 N. Y. 255. " This decision would not affect cases of 
 
 5 Owens V. CoUinson, 3 Gill & J. 25 ; indemnity, where one man employed 
 
 Chipmau v. Morrill, 20 Cal. 130; Sny- another to do acts not unlawful in them- 
 
 der V. Kirtley, 35 Misso. 423. selves for the purpose of asserting a 
 
 ^ Fowler v. Donovan, supra. right ; " Betts ». Gibbins, 2 A. & E. 57, 
 
 ' Robertson v. Deatherage, supra. 74, Lord Denman, C. J. observing, " The 
 
 8 Wells V. Miller, supra ; Craven v. general rule is that between wrong-doers 
 
 Freeman, 82 N. C. 361 ; Scofield v. Gas- there is neither indemnity nor contribu- 
 
 kill, 60 Ga. 277 ; Healey v. Scoiield, 60 tion, the exception is where the act is 
 
 Ga. 450 ; Crayton v. Johnson, 27 Ala. not clearly illegal in itself." 
 
 503. 
 
 80 
 
CHAP. VIII.] CREATED BY LAW. § 219 
 
 vail, therefore contribution may be enforced, against a party 
 not within its reason ; that is, not knowing the facts which 
 render him a wrong-doer, so deemed such only by implication 
 of law.^ 
 
 § 217. Benefit accepted. — Any benefit, of a sort commonly 
 the subject of pecuniary compensation, which one, not intend- 
 ing it as a gift,^ confers on another who accepts it, is, in the 
 absence of any agreement in fact, an adequate foundation for 
 the law's created promise to render back its value.^f There 
 may be, in some special circumstances, actual or apparent 
 deviations from this rule ; * but, if so, they will be obvious to 
 the practitioner who takes his steps in the light of the reasons 
 from which the rule proceeds, and they cannot well be for- 
 mulated into an exception. To illustrate, — 
 
 § 218. Goods ordered. — If one orders goods from a trader, 
 or receives and uses them, but says nothing of pay, a promise 
 to pay for them will be implied by law.^ Or, — 
 
 § 219. Work and Services. — If he procures work or ser- 
 vices from a person under no special ties of relationship or 
 
 1 Adamson v. Jarvis, 4 Bing. 66; § 14-16, 19, 184, note. It is held, in the 
 Wooley «. Batte, 2 Car.&P.4l7; Pear- severalcases, fragment by fragment; and 
 son V. Skelton, 1 M. & W. 504 ; Acheson only by pntting together the fragments, 
 V. Miller, 2 Ohio State, 203 ; Moore v. and permitting the law's reasons to 
 Appleton, 26 Ala. 633. The doctrine give them adherence, can we discover it 
 seems to be, that, to take away the equi- as a compact whole. Bishop Written 
 table right of enforcing contribution, Laws, § 125. Among the authorities to 
 there must be an evil intent similar to some of the fragments are Elder «. Hood, 
 the element of intent in the criminal 38 111. 533 ; Adams v. Cosby, 48 Ind. 
 law, where an ignorance of fact of a sort 1 53 ; Watchman v. Crook, 5 Gill & J. 
 to free one from culpability will excuse 239 ; Morris v. Morris, 4 Grat. 293 ; 
 what otherwise would be punishable. 1 Jones v. Woods, 26 .Smith, Pa. 408 ; 
 Bishop Crim. Law, § 301-303 a, and the Morrison v. Jones, 6 Bradw. 89 ; Stan- 
 note to the latter section. But the hop v. Ecquester, Latch, 87 ; Hathaway 
 wrongful act need not be a crime. I v. Winneshiek, 30 Iowa, 596. The rest 
 have not seen the rule stated in these are interspersed with other matter 
 terms, yet such appears to be, at least, throughout this entire chapter. 
 
 the philosophy of it. Post, § 481. * Ross v. Hardin, 79 N. Y. 84 ; North 
 
 2 Ante, § 210. Providence v. Dyerville Manuf. Co. 13 
 
 3 Authorities and how regarded. R. I. 45 ; Davis v. Breon, 1 Ariz. 240 ; 
 — In the nature of the law, this propo- Boston v. District of Columbia, 19 Ct. 
 sition, like multitudes of others which of CI. 31 ; French v. Auburn, 62 Maine, 
 every competent law-writer introduces 452. 
 
 into his text-book, is not sustainable by a ^ Met. Con. 4 ; Weatherby v. Ban- 
 reference to any single authority. Ante, ham, 5 Car. & P. 228. 
 
 6 81 
 
§ 222 IN GENERAL WITH ILLUSTRATIONS. [bOOK I. 
 
 the like, or knowingly receives the benefit of them, the law 
 creates the promise to pay for what he accepted to his own 
 advantage.^ But, — 
 
 § 220. Voluntary. — If in the particular case it is shown 
 that the services were not rendered for pay, but were volun- 
 tary, no payment for them can be recovered, however great 
 the benefit conferred.^ An instance of this occurs, for ex- 
 ample, where two persons having dealings together are in 
 the habit of doing for each other things not intended to be 
 included in the accounts ; the one who has done more than 
 the other cannot enforce pay for the balance.^ Within this 
 principle, — 
 
 § 221. Organization of Corporation. — When a corporation 
 is about to be organized, if one renders services therein, or 
 otherwise does what, were it in existence, would create a 
 debt from it to him, he cannot, on the organization being 
 perfected, enforce payment from it. So far as it is concerned, 
 what was done must be presumed to have been voluntary; 
 for he could not expect paj'^ from a body not in existence, nor 
 could the law impose an obligation on a nonentity.* So 
 likewise, — 
 
 § 222. Extra Services. — If one under a salary or other 
 regular pay performs, without any express understanding as 
 to compensation, duties in excess of what the contract of 
 employment demands, they will be presumed to have been 
 rendered under the contract or voluntarily, and the law will 
 create no promise to pay for them.^ Something as to the 
 
 1 Moreland v. Davidson, 21 Smith, v. O'DriscoU, 2 Bay, 101 ; Watson v. 
 Pa. 371 ; Ford v. Ward, 26 Ark. 360 ; Ledoux, 8 La. An. 68 ; Bartholomew v. 
 James v. Bixby, 11 Mass. 34, 37 ; In re Jackson, 20 Johns. 28. 
 
 Scott, 1 Redf. 234 ; Farmington Acad- » Potter v. Carpenter, 76 N. Y. 157 ; 
 
 emy v. Allen, 14 Mass. 172, 176; St. Jared v. Vanvleet, 13 Bradw. 334. 
 
 Patrick's Church v. Abst, 76 111. 252 ; * Rockford, &c. Railroad v. Sage, 65 
 
 Camfrancq v. Pilie, 1 La. An. 197; 111. 328; Western Screw, &c. Co. v. 
 
 Dougherty v. Whitehead, 31 Misso. 255 ; Cousley, 72 111. 531 ; Marchand v. 
 
 Hurst V. Hite, 20 W. Va. 183; Mc- Loan and Pledge Assoc. 26 La. An. 
 
 Crary v. Ruddick, 33 Iowa, 521 ; Reg. 389. 
 
 V. Doutre, 9 Ap. Cas. 745; Jones v. ^ Levisee v. Shreveport City Bail- 
 
 Woods, 26 Smith, Pa. 408. road, 27 La. An. 641 ; Pew v. Gloucester 
 
 2 Force v. Haines, 2 Harrison, 385 ; National Bank, 130 Mass. 391, 396. 
 White V. Jones, 14 La. An. 681 ; James 
 
 82 
 
CHAP. VIII.] CREATED BY LAW. § 224 
 
 case where there is an express promise may be derived from 
 what is said in another connection.^ 
 
 § 223. Relationship. — Where services on the one hand and 
 board on the other are rendered between members of one 
 family, particularly if the relation of parent and child exists, 
 or where the head of the family stands in loco parentis to a 
 member,^ the law's promise of payment does not arise.^ The 
 case of a brother and sister living together and constituting a 
 family has been held to be within this rule.* Yet an express 
 contract to make compensation will be good ; ^ and, in spe- 
 cial circumstances, not differing greatly, even an agreement 
 for pay will be implied.® 
 
 § 224. Bequest in Payment. — One rendering services un- 
 derstood to be gratuitous, yet with the hope of receiving in 
 return a gift or bequest from the person served, cannot, on 
 being disappointed, turn round and enforce pay ; as, for ex- 
 ample, by suing his executor.^ And there are English cases 
 from which the doctrine seems even to go further ; namely, 
 that, though the party benefited expressly promises remuner- 
 ation by a legacy, the meaning is that it shall depend on his 
 mere pleasure, and the other will have no remedy should he 
 break his promise and not make the legacy.* But this inter- 
 pretation is contrary to reason ; since it leaves the parties 
 precisely where they stood without the agreement, reducing 
 
 1 Ante, § 48-50. deemed not alone sufficient to rebut the 
 
 * Thorp V. Bateman, 37 Mich. 68 ; presumed obligation to pay for services 
 Ryan ». Lynch, 9 Misso. Ap. 18; Wind- rendered in the grandfather's family, 
 land B. Deeds, 44 Iowa, 98 ; Smith v. Hauser v. Sain, 74 N. C. 552. 
 Johnson, 45 Iowa, 308. 6 Byrnes v. Clark, 57 Wis. 13 ; Meds- 
 
 8 Harris v. Currier, 44 Vt 468 ; ker v. Richardson, 72 Ind. 323 ; Wence 
 
 Mariner v. Collins, 5 Harring. Del. 290 ; v. Wykoif, 52 Iowa, 644. 
 Cauble v. Eyman, 26 Ind. 207 ; Hert- ^ Ensey v. Hiues, 30 Kan. 704 ; Mor- 
 
 zog V. Hertzog, 5 Casey, Pa. 465 ; Hays ton v. Rainey, 82 HI. 215. 
 V. McConnell, 42 Ind. 285 ; Daaben- ' Davison v. Davison, 2 Beasley, 246 ; 
 
 speck V. Powers, 32 Ind. 42; Keegan v. Little v. Dawson, 4 Dall. Ill ; Lee i>. 
 
 Malone, 62 Iowa, 208 ; Cohen v. Cohen, Lee, 6 Gill & J. 316 ; Kennard v. Whitr 
 
 2 Maekey, 227 ; Houck v. Houck, 3 son, 1 Houston, 36 ; Le Sage v. Couss- 
 
 Ont. Pa. 552; Wilson v. Wilson, 52 maker, 1 Esp. 187. 
 Iowa, 4+ ; Greenwell v. Greenwell, 28 <* Baxter v. Gray, 4 Scott N. R. 374, 
 
 Kan. 675. 3 M. & G. 771 ; Osborn v. Guy's Hos- 
 
 * Taylor v. Taylor, 1 Lea, 83. The pital, 2 Stra. 728. 
 relationship of granddaughter has been 
 
 83 
 
§ 227 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 it to a mere nullity. It is never permissible thus to interpret 
 words away when another construction is obvious. And the 
 law is well settled, both in England and this country, that 
 a promise by one to make a will or devise in another's favor 
 »is, if in due form and on good consideration, binding.^ Even 
 such a promise may, in proper cases, be enforced in equity by 
 a decree for specific performance.? Or, with us, however the 
 rule may be in England, an action at law may, after the party 
 dies without fulfilling his agreement, be maintained against 
 his executor to recover the value of the services.^ And if 
 there is a provision in the will, and it is sufficient to compen- 
 sate for the services only in part, an action is maintainable 
 against the executor for the residue.* 
 
 § 225. Distinguished. — In the larger part of the foregoing 
 illustrations of the contract which the law creates, there is 
 no impossibility that, in truth, the party might have made the 
 promise thus imputed to him, however plain it may be that he 
 did not. But in other of the cases the fact of there being 
 no promise is conclusive, and in still others its existence is 
 impossible. Thus, — 
 
 § 226. Money wrongfully obtained. — If, by fraud, duress, 
 or any trespass, a man gets possession of another's money or 
 other property, the law raises the promise to return the same, 
 though plainly he did not mean to do it, and could not have 
 so contracted in fact.^ Or, — 
 
 § 227. Labor of Apprentice. — If a man knowingly entices 
 
 1 Graham v. Wickham, 1 De G. J. & Tarr, 53 Ind. 390, 392 ; Martin v. 
 S. 474, 9 Jnr. N. s. 702 ; Hammersley v. Wright, 13 Wend. 460. ^ 
 
 De Biel, 12 CI. & F. 4.^ ; s. c. nom. De * Reynolds v. Eobinson, 64 N. Y. 
 
 Beil V. Thomson, 3 Bear. 469; In re 589. 
 
 Brookman's Trust, Law Rep. 5 Ch. Ap. ^ Gilbert v. Ross, 1 Strob. 287 ; Hins- 
 
 182; Loffiis V. Maw, 8 Jur. N. s. 607. dill v. White, 34 Vt. 558; Pheteplace v. 
 
 2 Mnndorff v. Kilbourn, 4 Md. 459 ; Eastman, 26 Iowa, 446 ; Swatara Eail- 
 Parsell u. Stryker, 41 N. Y. 480. If two road k. Brune, 6 Gill, 41; Gorman d. 
 persons agree to make wills in each oth- Carroll, 7 Allen, 199 ; Jamison v. Moon, 
 er's favor, a will made contrary to the 43 Missis. 598 ; Gordon v. Bruner, 49 
 agreement may be vacated by judicial Misso. 570; Hagaman v. Neitzel, 15 
 decree. Robinson v. Mandell, 3 Clif. Kan. 383 ; McDonald v. Todd, 1 Grant, 
 169. Pa. 17; McDonald v. Peacemaker, 5 
 
 8 Shakespeare v. Markham, 10 Hun, W. Va. 439 ; Allen v. Burlington, 45 
 311,322; Eagan u. Kergill, 1 Dem.464; Vt.202; Wilson u. Short, 6 Hare, 366. 
 Taylor i-. Wood, 4 Lea, 504 ; Frost v. 
 
 84 
 
CHAP. VIII.] CREATED BY LAW. § 231 
 
 away, or takes by force, or harbors another's apprentice, the 
 law creates a promise from him to the master to pay the latter 
 for the services rendered by the apprentice.^ 
 
 § 228. Concurrent Remedies. — In the cases mentioned in 
 the last two sections there is generally a concurrent remedy 
 by an action for the tort, which the injured party may have 
 instead, if he chooses.^ Again, — 
 
 § 229. Husband and Wife. — Within a principle already 
 mentioned,^ and by reason of the mutual dependence of hus- 
 band and wife, no services which the one may render the 
 other will be followed, at the common law, by any implied 
 duty to pay ; nor, except by force of some of our recent stat- 
 utes, can either be bound to the other by an express promise.* 
 So, also, — 
 
 § 230. Parent and Minor Child. — To a considerable ex- 
 tent, the same consequence attends the mutual transactions 
 of parent and minor child.^ Yet there may be valid bargain- 
 ings between them ; even a father may be compelled, on his 
 distinct, express promise, to pay wages to such child.^ And 
 he may give the child his earnings ^ or an article of property,® 
 so that he cannot reclaim them, or he may emancipate the 
 child.^ The further consideration of this class of questions is 
 not for this place.^" 
 
 § 281. Medical Aid in Emergency. — Should a medical prac- 
 titioner be called by an unauthorized person to a man de- 
 prived of his senses by a blow, rendering immediate relief 
 necessary to save life, duty would require it to be given. 
 And, if he gave it, not in charity but expecting to be paid, 
 the law would create a promise of payment from the patient, 
 
 -1 Foster v. Stewart, 3 M. & S. 191 ; 886, 887 ; 2 lb. § 438, 456, and other 
 
 Lightly V. Clouston, 1 Taunt 112; places. 
 
 Eades v. Vandeput, 5 East, 39, note, 4 ^2 Kent Com. 189 et seq. 
 
 Doug. 1 ; James v. Le Eoy, 6 Johns. * Titman v. Titman, 14 Smith, Pa. 
 
 274. 480; Wilson v. McMillan, 62 Ga. 16. 
 
 2 Neate v. Harding, 6 Exch. 349; ' Monaghan v. School District; 38 
 
 Blalock V. Phillips, 38 6a. 216 ; Intemar Wis. 100. 
 
 tional Bank o. Monteath, 39 N. Y. 297 ; « Smith v. Smith, 7 Car. & P. 401. 
 
 Stuart V. Simpson, 1 Wend, 376. » Farrell v. Earrell, 3 Houst. Del. 
 
 s Ante, § 204-209. 633. 
 
 \ M Bishop Mar. Women, §883,- w Ante, § 223 ; post, § 892-946. 
 
 85 
 
§ 234 IN GENERAL WITH ILLUSTEATIONS. [BOOK I. 
 
 who, in fact, not even asked for the aid, or consented to its 
 being rendered ; ^ being incapable of asking or consenting.^ 
 So,— 
 
 § 232. Necessaries to Insane Person. — In any case of in- 
 sanity, one who, whether by formal agreement with the 
 insane person or not, in good faith furnishes him with " neces- 
 saries," — being things required for his sustenance or com- 
 fort, and suitable to his means, condition, and habits of life, 
 — can, if he is not otherwise supplied, recover of him, on a 
 promise which the law will imply, what they are reasonably 
 worth. Were the law " not so, the insane might perish." ^ 
 Even expenditures and services for the protection of his estate 
 may be included in this class.* Thus, — 
 
 § 233. Benefit to Insane Person's Estate. — Though a con- 
 tract with an insane person is, as a contract, void or voidable, 
 there is a doctrine not quite uniformly held by the tribunals, 
 and to be further explained in another chapter,^ to the effect 
 that, if the other party does not know of the insanity, and 
 confers on him or his estate a substantial benefit by executing 
 what was in good faith supposed to be a valid agreement, and 
 the parties cannot, on a rescission of such agreement, be placed 
 in statu quo, he may be compelled to pay what the benefit 
 conferred was worth.^ 
 
 § 234. Necessaries to Infants. — Though an infant (being 
 any person under twenty-one years of age) has not the same 
 power of contract as an adult, yet, if he is not provided 
 for by his parents or otherwise, and is in want, one who, in 
 response to his request, supplies him with necessaries can 
 recover of him what they are worth, on a contract which the 
 
 1 Ante, § 217. 6 Post, § 969, 970. 
 
 2 Arguendo, in Richardson v. Strong, ' Wilder v. Weakley, 34 Ind. 181 ; 
 13 Ire. 106, 107. Matthiessen & Weichers Eefining.Co. ». 
 
 » Sawyer u. Lufkin, 56 Maine, 308, McMahon, 9 Vroom, 536; Lancaster 
 
 309 ; Richardson v. Strong, 13 Ire. 106 ; National Bank v. Moore, 28 Smith, Pa. 
 
 Pearl v. McDowell, 3 J. J. Mar. 658 ; 407 ; Behrens v. McKenzie, 23 Iowa, 
 
 Skidmore v. Romaine, 2 Bradf. 122 ; 333 ; Ballard v. McKenna, 4 Rich. Eq. 
 
 Leach v. Marsh, 47 Maine, 548 ; Baxter 358 ; Sims v. McLure, 8 Rich. Eq. 286 ; 
 
 V. Portsmouth, 5 B. & C. 170; Went- Dodds v. Wilson, 1 Tread. 448; Abbott 
 
 worth V. Tubb, 1 Y. & Col. C. C. 171. v. Creal, 56 Iowa, 175, 177. And see 
 
 * Williams jj.Wentworth, 5 Beav. 325. Niell v. Morley, 9 Vea. 478. 
 
 86 
 
CHAP. VIII.] CREATED BY LAW. § 237 
 
 law will create.^ One suing him on this promise has the 
 burden of proving the circumstances rendering the things fur- 
 nished, in the particular instance, necessaries.^ By the doc- 
 trine of some courts, denied by others, an infant in want, not 
 emancipated or deserting his home, may in like manner charge 
 his father for reasonable necessaries ;^ in many circumstances, 
 by all opinions, he will be presumed to have authority from 
 the parent.* 
 
 § 235. Necessaries to Wife. — Whatever be the rule be- 
 tween parent and child, the duty of the husband to support 
 the wife, while she is in the path of duty, is by all opinions 
 absolute. And if, not being herself in the wrong, she is des- 
 titute through his neglect or refusal, the law will create a 
 promise by him to pay any third person who may furnish 
 necessaries to her, at her request, directing them to be charged 
 to him. ^ Again, — 
 
 § 236. Saving Property. — The duty to save the property 
 of a third person is so absolute that he who does it in an 
 emergency when otherwise it would be lost, not in mere vol- 
 untary kindness,® but expecting to be paid, can recover from 
 the owner compensation for his outlay or labor, on a contract 
 created by law. If the owner had abandoned the article, and 
 did not seek to reclaim it, the rule would be otherwise ; for 
 then it would belong to the finder.^ Finally, — 
 
 § 237. Burying the Dead. — The duty of burying the dead 
 is so absolute, and the necessity of its prompt discharge so 
 urgent, that, if it is not done by those on whom it primarily 
 rests, — for example, if a wife dies while the husband is out 
 of the country and does not or cannot bury her, — any person 
 
 1 Parsons v. Keys, 43 Texas, 557; don v. Potter, 17 Vt. 348; Weeks v. 
 
 Met. Con. 69; Barnes v. Toye, 13 Q. B. Merrow, 40 Maine, 151 ; Townsend v. 
 
 D. 410 ; Wharton v. Mackenzie, 5 Q. B. Burnham, 33 N. H. 270 ; Kelley v. Da- 
 
 606 ; Gay v. Ballou, 4 Wend. 403 ; Hy- vis, 49 N. H. 187. 
 
 man v. Cain, 3 Jones, N. C. 111. * I Bishop Mar. & Div. § 553, 555, 
 
 « Wood V. Losey, 50 Mich. 475 ; 565, 568 et seq., 578. 
 
 Clarke v. Leslie, 5 Esp. 28 ; Wailing v. ^ Watson u. Ledoux, 8 La. An. 68. 
 
 Toll, 9 Johns. 141. ''2 Kent Com. 356 ; Chase v. Corco- 
 
 ' 2 Bishop Mar. & Div. § 528. ran, 106 Mass. 286. See Perkins v. 
 
 * And see Stanton v. Willson, 3 Day, Ladd, 1 14 Mass. 420 ; Boothe v. Fitz- 
 
 37; Keaton v. Davis, 18 Ga. 457; Gor- patrick, 36 Vt. 681. 
 
 87 
 
§ 238 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 in whose custody the dead body may be, or any other person, 
 may give it decent burial according to the estate and con- 
 dition of the deceased, and enforce payment of the person 
 primarily obligated ; as, in the case supposed, of the husband.^ 
 Where the primary duty rests on the estate of the deceased, 
 so much of the expenses of the burial as cannot properly be 
 postponed until after the appointment of an administrator ^ 
 may, if he has assets, be recovered of him in his administra- 
 tive capacity or personally ; or, if after his appointment he 
 neglects this duty, another may discharge it and enforce re- 
 imbursement in like manner. In all these cases, the contract 
 for pay is created by the law.^ Always the funeral expenses 
 are a proper subject of charge by the administrator against 
 the estate ;* it is so even where it is insolvent, but they must 
 be reasonable.^ 
 
 § 238. The Doctrine of this Chapter restated. 
 
 When a duty is cast upon one by a statute,® or by "equity 
 and good conscience " (the standard whereof is to be found 
 in the books of the law rather than in those on moral sci- 
 ence),'^ or in any way by the law, whether statutory or com- 
 mon,* — or, when one has been benefited by another who 
 was discharging such duty,^ or responding to an imperative 
 social call,^" under the anticipation of being paid, — or, again, 
 
 1 Jenkins v. Tucker, 1 H. Bl. 90; Bank,3 J. J. Mar. 201, 205; Bath ». Free- 
 Ambrose V. Kerrison, 10 C. B. 776; port, 5 Mass. 325 ; Brigham w. Eyeleth, 
 Bradshaw v. Beard, 12 C. B. n. s. 344. 9 Mass. 538 ; Hillsborough v. London- 
 
 2 Samuel v. Thomas, 51 Wis. 549. derry, 43 N. H. 451. 
 
 8 Luscomb V. Ballard, 5 Gray, 403, ^ Howe v. Buffalo, &c. Railroad, 37 
 
 405; Hapgood v. Houghton, 10 Pick. N. Y. 297; Turner v. Jones, 1 Lans. 
 
 1 54 ; Tugwell v. Heyman, 3 Camp. 298 ; 1 47 ; Thompson v. Thompson, 5 W. Va. 
 
 Comer o. Shew, 3 M. & W. 350, 356; 190; Allen v. McKean, 1 Sumner, 276, 
 
 Rogers v. Price, 3 Y. & J. 28; Myer 317; Wilson v. Sergeant, 12 Ala. 778; 
 
 V. Cole, 12 Johns. 349; In re Miller, Gardiner Manuf. Co. u. Heald, 5 Greenl. 
 
 4 Redf. 302. 381 ; BrinckerhoiF v. Wemple, 1 Wend. 
 
 * Clayton v. Somers, 12 C. E. Green, 470 ; Wilby v. Phinney, 15 Mass. 116; 
 
 230 ; Green v. Salmon, 8 A. & E. 348. Stuart v. Lake, 33 Maine, 87. 
 
 6 Steger v. Erizzell, 2 Tenn. Ch. 369 ; 8 Baker v. Thayer, 3 Met. 312, 315; 
 
 Hancock v. Podmore, 1 B. & Ad. 260 ; ante, § 204. 
 Yardley «. Arnold, Car. & M. 434. 9 Camden v. Mulford, 2 Dutcher, 49. 
 
 6 
 
 Ante, § 205; Waller v. Kentucky i« Hewett v. Bronson, 5 Daly, 1. 
 
CHAP. VIII.] CREATED BY LAW. § 238 
 
 has knowingly accepted something of value from another, who 
 may be presumed to have been expecting compensation,^ the 
 law creates a promise from him to do the thing or pay for the 
 benefit. Yet these propositions are to be accepted as in some 
 degree limited and defined by what has been the course of the 
 courts heretofore. In other words, the law creates a promise 
 from one person to another, though none was in fact made, 
 whenever such assumed promise is necessary as a foundation 
 on which to enforce so much of natural, statutory, or common- 
 law justice as comes within judicial cognizance. Hence, in 
 the application of these principles, the court takes into view 
 the equities of the individual case, what has been decided be- 
 fore, and the analogies to be drawn from the entire statutory 
 and unwritten law ; being, however, in the main, guided by 
 past decisions in like cases. 
 
 1 Day V. Caton, 119 Mass. 513. 
 
§ 242 IN GENERAL WITH ILLUSTRATIONS, [BOOK I. 
 
 CHAPTER IX. 
 
 CONTRACTS IMPLIED FEOM BXPBESS ONES. 
 
 § 239. Distinguished. — The distinctions between the con- 
 tracts of this chapter and those of the last and of the one 
 next following are not always so obvious as we might wish, 
 though in a part of the cases they are plain. And while 
 commonly they are of little practical consequence,^ there are 
 contracts which will differ in legal effect according to the 
 class into which they are interpreted. The reader, by carry- 
 ing this fact in mind, may avoid misapprehensions. 
 
 § 240. Elsewhere. — The interpretation of contracts is ex- 
 plained in a chapter further on.^ The subject of this chapter 
 is in one view a part of that, and the two may not unprofita- 
 bly be read together. 
 
 § 241. Doctrine defined. — The doctrine of this chapter is, 
 that what is implied in an express contract is as much a part 
 of it as what is expressed.^ It is the same doctrine which 
 governs a statute.* 
 
 § 242. Why ? — Since in all language what the speaker 
 supposes the hearer to understand is not expressed, yet the 
 latter constitutes a part of the thought meant to be conveyed 
 while the former composes the residue, it would be unreason- 
 able to hold a contract as an exception, and it is not. The 
 doctrine, therefore, is inherent in human speech. It would 
 be futile for this chapter to undertake to exhaust the illustra- 
 
 1 Ante, § 183, note. construed as if those terms which the 
 
 " Post, § 365 et seq. law will imply were expressly introdnced 
 
 ' Hudson Canal ». Pennsylvania Coal into it." Willes, J. in Whincup v. 
 
 Co. 8 Wal. 276. "It is a well known Hughes, Law Eep. 6 C. P. 78, 84. 
 
 rtile of law that every contract must be * 2 Bishop Mar. Women, § 63. 
 
CHAP. IX.] 
 
 IMPLIED FROM EXPRESS. 
 
 §244 
 
 tions of it, so just enough are here given to make the doctrine 
 plain. Thus, — 
 
 § 243. Title to Thing sold — ('Warranty). — If one sells an 
 article of personal property in his possession, as his own, and 
 for a fair price, in law he also warrants the title.^ But when 
 he has it not in possession,'^ and in some other circumstances,*^ 
 there is no warranty of title implied. Moreover, — 
 
 § 244. Quality. — The warranty by implication of law does 
 not ordinarily extend to the quality of a chattel sold, even 
 where the full price for a good article is paid.* But, on this 
 question, judicial opinions are not quite harmonious ; some ac- 
 cepting the doctrine of the civU law, contrary to the common- 
 law rule, that the taking of a sound price warrants the article 
 sound.^ And the implied warranty of soundness may extend 
 to things at sea, or otherwise not in a position to be inspected 
 by the purchaser, and to sales by sample.^ 
 
 1 2 Kent Com. 478 ; Williamson v. 
 Sammons, 34 Ala. 691 ; Linton v. Por- 
 ter, 31 111. 107 ; Chancellor v. Wiggins, 
 4 B. Monr. 201 ; Defreeze v. Trumper, 
 1 Johns. 274 ; Cozzins o. Whitaker, 3 
 Stew. & P. 322 ; Boyd v. Whitfield, 19 
 Ark. 447; Sherman v. Champlain 
 Transp. Co. 31 Vt. 162 ; Costigan v. 
 Hawkins, 22 Wis. 74; Fawcett v. Os- 
 born, 32 111. 411 ; Word v. Gavin, 1 
 Head, 506 ; Dryden v. Kellogg, 2 Misso. 
 Ap. 87. See Sparks v. Messick, 65 
 N. C. 440. The English doctrine seems 
 slightly different, and to imply a war- 
 ranty of title only from special circum- 
 stancea of a sale. Morley v. Attenbor- 
 ougb, 3 Exch. 500 ; Leake Con. 105, 402, 
 403. 
 
 2 Lackey v. Stouder, 2 Ind. 376 ; 
 Huntingdon v. Hall, 36 Maine, 501 ; 
 Scranton v. Clark, 39 N. Y. 220 ; Scott 
 V. Hix, 2 Sneed, Tenn. 192; Long v. 
 Hickingbottom, 28 Missis. 772. 
 
 ' Richardson v. Tipton, 2 Bush, 202 ; 
 The Monte AUegre, 9 Wheat. 616; 
 Yates V. Bond, 2 McCord, 382. 
 
 * 1 Bishop Crim. Law, § 11 ; Preston 
 V. Dunham, 52 Ala. 217; West v. Cun- 
 ningham, 9 Port. 104 ; Mason ». Chap- 
 pell, 15 Grat. 572; Weimer v. Clement. 
 
 1 Wright, Pa. 147; Beninger ». Corwin, 
 4 Zab. 257 ; Johnston v. Cope, 3 Har. 
 & J. 89 ; Fenniman v. Pierson, 1 D. 
 Chip. 394 ; Dean v. Mason, 4 Conn. 
 428; Boit v. Maybin, 52 Ala. 252; 
 Gossler v. Eagle Sugar Eefinery, 103 
 Mass. 331 ; Gaylord Manuf. Co. v. Al- 
 len, 53 N. Y. 515; Jones v. Murray, 3 
 T. B. Monr. 83 ; Emerson v. Brigham, 
 10 Mass. 197 ; Moses v. Mead, 1 Denio, 
 378, 5 lb. 617 ; Bartlett v. Hoppock, 34 
 N. Y. 118; Goldrich v. Ryan, 3 E. D. 
 Smith, 324 ; Wright v. Hart, 18 Wend. 
 449 ; 8. o. in court below, nom. Hart v. 
 Wright, 17 Wend. 267; Holden v. Da- 
 kin, 4 Johns. 421 ; Jones v. Just, Law 
 Rep. 3 Q. B. 197, 202. 
 
 5 Champneys v. Johnson, 2 Brev. 
 268; Rose v. Beattie, 2 Nott & McC. 
 538 ; Crawford v. Wilson, 2 Mill, 353 ; 
 Barnard v. Yates, 1 Nott & McC. 142 ; 
 Lester v. Graham, 1 Mill, 182 ; Missroon 
 V. Waldo, 2 Nott & McC. 76 ; Mitchell 
 V. Dubose, 1 Mill, 360; Thompson v. 
 Lindsay, 1 Tread. 236, 3 Brer. 305; 
 Tons V. Long, Taylor, 17. 
 
 6 Moore v. McKinlay, 5 Cal. 471 ; 
 Getty V. Rountree, 2 Chand. 28 ; Fish v. 
 Roseberry, 22 111. 288; Howard «. 
 Hoey, 23 Wend. 350; Hanks v. Mc- 
 
 91 
 
§ 250 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 § 245. Warranty of Note. — If one sells a promissory note, 
 the law implies the warranty that it is not forged, but genuine 
 and binding on the parties,^ and not subject to any legal 
 defence.^ Yet in the absence of fraud there is no warranty 
 of the maker's solvency or ability to pay.^ So — 
 
 § 246. Faithfulness and Capacity. — A person who un- 
 dertakes a particular business contracts also, bj' implication, 
 with his employer to integrity, care, and reasonable skill. ^ 
 Again, — 
 
 § 247. Warranty of Agency. — One who enters into a con- 
 tract with another as the agent of a third person, agrees also 
 with the other, in matter of law, that he is such agent.^ 
 
 § 248. In Conveyances of Land — warranties are implied.* 
 Generally they may exist though there are express warranties 
 also, but they cannot have an effect contrary to what is 
 expressed.^ It will not be well here to enter into this learn- 
 ing; but,— 
 
 § 249, Bounded on Street. — Where a deed bounds the 
 land on one side by a way, it creates by implication the cov- 
 enant that there is such a way.' 
 
 § 250. Implications from Particular Terms. — In the illus- 
 trations thus far, the implied contract has, in the main, grown 
 
 Kee, 2 Litt. 227 ; Waring v. Mason, 18 8 lb. 647 ; Baltzen v. Nicolay, 53 N. T. 
 
 Wend. 425 ; Whittaker v. Hueske, 29 467 ; Spedding v. Nevell, Law Eep. 4 
 
 Texas, 355; Phelps v. Quinn, 1 Bush, C. P. 212; Kichardson u. Williamson, 
 
 375; Merriam v. Field, 24 Wis. 640. Law Rep. 6 Q. B. 276 ; post, § 1120. 
 
 1 Lobdell V. Baker, 1 Met. 193; 6 4 Kent Com. 473. Yet not of title, 
 Merriam v. Wolcott, 3 Allen, 258 ; Bell it appears, in Georgia. McDonald v. 
 V. CafFerty, 21 Ind. 411 ; Tyler v. Bai- Beall, 55 Ga. 288. 
 
 ley, 71 111. 34. And see Presbury v. ' Roebuck v. Duprey, 2 Ala. 535; 
 
 Morris, 18 MIsso. 165. Blair v. Hardin, 1 A. K. Mar. 231 ; 
 
 2 Fake v. Smith, 2 Abb. Ap. Dec. 76. Morris v. Harris, 9 Gill, 19 ; Gates ». 
 And see Thomas v. Bartow, 48 N. Y. Caldwell, 7 Mass. 68 ; Sumner v. Wil- 
 193. liams, 8 Mass. 162,201 ; Vanderkarrt). 
 
 3 Day U.Kinney, 131 Mass. 37. And Vanderkarr, 11 Johns. 122; Kent i'. 
 see Graul v. Strutzel, 53 Iowa, 712. Welch, 7 Johns. 258; Crouch v. Fowle, 
 
 * Met. Con. 5 ; Stevens v. Walker, 9 N. H. 219. 
 55 III. 151; Zulkee v. Wing, 20 Wis. 8 Parker v. Smith, 17 Mass. 413; 
 
 408; Waul v. Hardie, 17 Texas, 553; Emerson v. Wiley, 10 Pick. 310,315; 
 
 Harmer u. Cornelius, 5 C. B. N. 8. 236 ; Tohey v. Taunton, 119 Mass. 404; 
 
 Page V. Wells, 37 Mich. 415 ; O'Hara Zearing v. Raber, 74 111. 409 ; Crowell 
 
 t>. Wells, 14 Neb. 403; post, §1416. v. Beverly, 134 Mass. 98; Burke ». 
 
 fi Collen V. Wright, 7 Ellis & B. 301, Wall, 29 La. An. 38. 
 92 
 
CHAP. IX.] IMPLIED FEOM EXPRESS. § 255 
 
 out of the nature of the express one, or out of the sort of 
 transaction. In other instances, it depends more on the inter- 
 pretation of terms. Thus, — 
 
 §251. "House" — "Miu." — In a grant or reservation, the 
 word "house" or "mill" carries by implication the land on 
 which it stands, being necessary to the enjoyment of the thing 
 expressed.^ 
 
 § 252. Included in, or created as Consequence. — The 
 reader should distinguish ^ between the contracts of this chap- 
 ter, where the thing implied is deemed an extension of the 
 contract itself;^ and cases where, as in that of a deed-poll 
 mentioned in the last chapter,* the law creates, out of the act 
 of acceptance, an independent promise. For the contracts of 
 this chapter, the following, it is submitted, is — 
 
 § 253. The Rule. — What comes by construction from an 
 express contract has the same effect as if the matter thus 
 interpreted into it stood therein in form ; and it takes 
 the degree of a specialty, of a written contract not under 
 seal, or of an oral one, accorded to the part expressed. 
 Thus, — 
 
 § 254. statute of Frauds. — Implications, created by con- 
 struction, may be added to the words of a contract, to 
 render it a sufiQcient writing under the Statute of Frauds.^ 
 Again, — 
 
 § 255. Implied Covenants. — Where covenants are implied 
 in a deed — that is, come by construction from it — they 
 are to be deemed as parts of the deed. The action for 
 the breach of them is to be covenant and not assumpsit, 
 and they are to be set out in the declaration in the same 
 manner as if they were expressed.^ 
 
 1 Bacon v. Bowdoin, 22 Pick. 401, ^ Smith Con. 2d Eng. ed. 53 ; Hawes 
 406; Webster ti. Potter, 105 Mass. 414, v. Armstrong, 1 Bing. N. C. 761 ; Fes- 
 415. senden v. Mussey, 11 Cush. 127. 
 
 2 Ante, § 239. « Grannis v. Clark, 8 Cow. 36 ; Bar- 
 ' Ante, § 241. ney v. Keith, 4 Wend. 502; Shaeffer u. 
 * Ante, § 202, 203. And see Mar- Geisenberg, 11 Wright, Pa. 500; Wood 
 
 ryat v. Marryat, 28 Beav. 224, 6 Jar. v. Hardisty, 2 Collyer, 542. 
 jf. 8. 572. 
 
 93 
 
§ 256 IN GBNEEAL WITH ILLUSTRATIONS. [BOOK I. 
 
 § 256. The Doctrine of this Chapter restated. 
 
 Like a statute or other law,' a contract must be interpreted 
 by the court in order to, and in advance of, its enforcement. 
 It is the interpreted stipulation, not its naked words, which 
 in the trial of a cause the judge submits to the jury as the 
 foundation for their verdict. Hence, of necessity, there is 
 and can be no distinction between the parts set down in terms 
 and those which the judge adds. The contract as shaped 
 or to be shaped by judicial hands is the real undertaking 
 between the parties, and the written or spoken words fill 
 simply the office of helps to the tribunal in determining the 
 contract. 
 
 1 Bishop Written Laws, § 116. 
 
 94 
 
CHAP. X.] IMPLIED AS OF FACT. § 261 
 
 CHAPTER X. 
 
 CONTRACTS IMPLIED AS OF PACT. 
 
 § 257. Not differ from Express. — A contract which, as a 
 question of fact, not of law, is implied, does not differ from 
 an express one excfept in form of proof. But it is so often 
 spoken of in our books as an implied contract that this sepa- 
 rate mention of it becomes desirable. Moreover, — 
 
 § 258. Presumptions of Pact and Law mingle. — In numer- 
 ous cases, as actually presented to the tribunal, where the 
 parties are capable, and are not affirmatively shown to have 
 been averse to contracting, the two questions blend, — Did 
 they enter into a contract in form ? In the absence of any 
 formal contract, shall one be presumed by the law ? There- 
 fore, in such a case, the jury pass upon the whole issue, under 
 proper instructions from the court as to the law involved in 
 the latter question.^ But — 
 
 § 259. Actual Contract presumed. — There are circum- 
 stances in which an express agreement, in distinction from an 
 implied one, will, by the law or by the jury, be presumed as 
 of fact.2 Thus, — 
 
 § 260. Deed of Land. — An actual conveyance of land, not 
 in law possible except by writing under seal, will be pre- 
 sumed from a long possession which could have had no lawful 
 origin without.^ And — 
 
 § 261. Marriage. — The marriage status is created only 
 
 1 Chamberlin v. Donahue, 44 Vt. 57 ; Missis. 628 ; Boyle v. Parker, 46 Vt. 
 
 Whaley ». Peak, 49 Misso. 80 ; Cauble 343. 
 
 V. Byman, 26 Ind. 207 ; Davenport v. " Boothby v. Scales, 27 Wis. 626. 
 
 Mason, 15 Mass. 85 ; Belden v. Meeker, ' Lyon v. Reed, 13 M. & W. 285, 303 ; 
 
 47 N. Y. 307, 311 ; Cock v. Oakley, 50 Whinnet v. Jones, 3 Moore & S. 472. 
 
 95 
 
§ 263 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 where the parties, expressly agree to assume it. No court 
 ever imposed it on them as of law. Yet, oftener than other- 
 wise, it is shown in proof, not by witnesses to the contract, 
 but by circumstantial evidence.^ Still, — 
 
 § 262. Evidence. — Questions of this sort belong rather 
 to the department of evidence than of law. So it is deemed 
 best to pursue the subject here no further. 
 
 § 263. The Doctrine of this Chapter restated. 
 
 The contract treated of in this chapter is an express one, 
 proved by circumstantial evidence. And, should the question 
 whether it was in writing, or even whether it was under seal, 
 be important, the affirmative of this also may be shown by the 
 like evidence. Thus, to draw another illustration from the 
 law of marriage, its existence may be presumed from circum- 
 stances, even under statutes which require minute* formalities 
 in its constitution. The form of the inquiry into the ex- 
 istence of this contract will vary with the cases ; it does not 
 admit of a universal rule. In some, the jury will be told that 
 the presumption follows as of law from admitted facts; in 
 others, they are to say whether or not, on the evidence, they 
 believe that the alleged contract was made ; and, in general, 
 varying rules of law will enter into the question. These are 
 particulars, not for this work, but for a book of evidence. 
 
 1 1 Bishop Mar. & Div. § 218, 219, 237, 482-518, 538. 
 96 
 
CHAP. XI.] ESTOPPEL AS A CONTBACT. 8 266 
 
 CHAPTER XI. 
 
 ESTOPPEL AS A SPECIES OF CONTRACT CREATED BY LAW. 
 
 §264. 
 
 Introduction. 
 
 265-269. 
 
 In General. 
 
 270-273. 
 
 By Judicial Record. 
 
 274-279. 
 
 By Deed. 
 
 280-310. 
 
 In Pais. 
 
 311. 
 
 Doctrine of Chapter restated. 
 
 § 264. What for this Chapter and. how divided. — The doc- 
 trine of estcfppel permeates the entire law, so not all of it per- 
 tains to contract. We shall take a mere glimpse of its larger 
 outlines, but in the filling up shall endeavor to keep within 
 those parts of the doctrine which enter into the subject of 
 the volume ; in the following order, I. In General ; II. By 
 Judicial Record; III. By Deed; IV. In Pais. 
 
 I. In Creneral. 
 
 § 265. Defined. — Estoppel is that principle of law by which, 
 for putting an end to litigation, and otherwise for promoting 
 justice, a fact once ascertained is, within limits which a long 
 course of adjudication has prescribed, to be deemed settled, 
 so that it cannot be inquired into afterward.^ 
 
 § 266. Beneficial. — This doctrine has not unfrequently 
 
 1 Coke's definition, followed in many estoppel was an admission or a declara- 
 
 of our later books, is not quite happily tion which the law does not permit him 
 
 expressed ; thus, " It is called an estop- who has made it to deny or disprove, for 
 
 pel or conclusion, because a man's own his own benefit, and to the injury of an- 
 
 act or acceptance stoppeth or closeth other." 2 Pars. Con. 787. My defini- 
 
 np his mouth to allege or plead the lion does not diifer from these so much 
 
 truth." Co. Lit. 352 a. Parsons ob- in meaning as in expression, 
 serves, " We should say rather, that an 
 
 7 97 
 
§ 268 IN GENERAL WITH ILLUSTRATIONS. [bOOK I. 
 
 been decried as odious in the law, and therefore not to be 
 favored .1 But surely, if the law permitted men to be har- 
 assed by constant litigations of the same thing over and over, 
 or suffered one to mislead another and then turn round and by 
 proving himself a falsifier ruin him with the truth, it would 
 merit no high commendation. And now equitable estoppels, 
 if not others, are, at least by some tribunals, favored ; be- 
 cause they prevent fraud and establish justice.^ Uudoubtedly 
 our books show instances wherein, through some judicial per- 
 verseness, or something unfortunate in the particular case, 
 the estoppel has not resulted beneficially ; but so it is also of 
 other beneficent doctrines of the law. 
 
 § 267. Betvreen -whom (Parties and Privies). — Estoppels 
 operate only between parties ^ and their privies ; strangers 
 not being permitted to take advantage of them.* Again, — 
 
 § 268. Mutual. — They must be mutual, both parties being 
 bound or neither.^ A common illustration is where a married 
 woman, under the common-law disabilities, or a minor, not 
 having capacity to make a lease of lands, executes one by in- 
 denture ; here the lessee will not be estopped by his covenants, 
 because the lessor is not.^ But this case might well be put on 
 the ground that the lease is void.^ Another, from the old 
 books, not admitting of being thus explained away, is that, 
 " if a man takes a lease for years of his own lands by patent 
 from the king,^ rendering rent, this shall not estop the lessee, 
 as an indenture between common persons in such case would 
 do ; because the king cannot be estopped, . . . and if he 
 
 1 Lampon v. Corke, 5 B. & Aid. 606, 11 111. 531 ; Petrie v. Nuttall, 11 Exch. 
 611; Leicester v. Rehobofh, 4 Mass. 569,575. 
 
 180; Owen v. Bartholomew, 9 Pick. ' Co. Lit. 352 a; Lansing v. Mont- 
 
 520, 527 ; Abbot v. "Wilbur, 22 La. An. gomery, 2 Johns. 382 ; Longwell «. Bent- 
 
 368. ley, 3 Grant, Pa. 177; Chope i). Lorman, 
 
 2 Post, § 282 ; The State v. Pepper, 20 Mich. 327 : Schnhman v. Garratt, 16 
 31 Ind. 76; Buckingham v. Hanna, 2 Cal. 100 ; McDonald W.Gregory, 41Iowa, 
 Ohio State, 551. 513 ; Stoddard v. Burton, 41 Iowa, 582. 
 
 » Post, § 310. 6 Bac. Abr. Lease 0, p. 442 ; James 
 
 * McDonald v. Gregory, 41 Iowa, v. Landon, Cro. Eliz. .16. 
 
 513; Stoddard !). Burton, 41 Iowa, 582; 7 Post, §279; Sinclair v. Field, 8 
 
 Hill V. Morse, 61 Maine, 541 ; Simpson Cow. 543, .'587 ; Kercheval v. Triplett, 1 
 
 V. Pearson, 31 Ind. 1 ; Griffin v. Rich- A. K. Mar. 493. 
 
 ardson, 11 Ire. 439; Massure v. Noble, * Post, § 310. 
 
CHAP. XI.] ESTOPPEL AS A CONTRACT. § 270 
 
 be not estopped neither shall the lessee, because all estoppels 
 ought to be mutual." ^ Yet the law does not carry the doctiine 
 of mutuality to extremes ; as, for example, it is very familiar 
 learning that a deed-poll estops the maker,^ and so does a bond 
 sealed only by one party ,8 while still the grantee or obligee 
 incurs no responsibility in form of specialty ; his liability, if 
 any, being on a promise created from him by the law.* But 
 on this promise, quite different in legal contemplation from 
 one by deed, the law may found an estoppel ; ^ so that, though 
 there is a sort of mutuality, it is imperfect. 
 
 § 269. Double Estoppel. — " Estoppel against estoppel doth 
 put the matter at large." ® 
 
 II. By Judicial Record. 
 
 §270. Defined. — An estoppel by judicial record occurs 
 where there has been a litigation, and therein a matter per- 
 taining to the question or the cause was admitted by the party 
 or adjudged by the court ; while the record of it remains un- 
 reversed, he cannot deny it either in the same proceeding, or 
 in any other between the same parties.'^ Coke further ex- 
 plains by saying, that " matters alleged by way of supposal in 
 counts shall not conclude after nonsuit, otherwise it is after 
 
 1 Bac. Abr. ut sup. in his digests. Yet the following may 
 
 a Blake v. Tucker, 12 Vt.39; How- be helpful: Strong v. Irwin, 12 Neb. 
 
 ard Mutual Loan, &c. Assoc, v. Mcln- 446 ; Cleveland, &c. Railroad v. Mara, 
 
 tyre, 3 Allen, 571. 26 Ohio State, 185 ; Morris v. Shannon, 
 
 ' Cole V. Raymond, 9 Gray, 217; 12 Bush, 89; Irwin «. Nuckolls, 3 Neb. 
 
 Goodrich v. Bryant, 5 Sneed, Tenn. 441 ; Kenan v. Du Bignon, 46 6a. 258 ; 
 
 325. Degelos v. Woolfolk, 21 La. An. 706 ; 
 
 * Ante, § 202, 203. Jenkins v. Rosenberg, 105 111. 157 ; 
 
 5 Johnson v. Thompson, 129 Mass. Whitehurst v. Rogers, 38 Md. 503 ; 
 
 398, 400. Streeks v. Dyer, 39 Md. 424 ; Dorsey r. 
 
 8 Co. Lit. 352 6; Carpenter V. Thompson, 37 Md. 25; Watterson v. 
 
 Thompson, 3 N. H. 204. Lyons, 9 Lea, 566 ; Kennerty v. Etiwan 
 
 ' I believe this to be a fair epitomiza- Phos. Co. 17 S. C. 411 ; Hill v. Morse, 
 
 tion (ante, § 184, note) of the law of 61 Maine, 541 ; Smith v. Denman, 
 
 the present sub-title, but nothing would 48 Ind. 65 ; Baker v. Kerr, 13 Iowa, 
 
 be gained by any full citation of the 384 ; Bender v. Belknap, 23 La. An. 
 
 numerous cases by comparison of which 764 ; Way v. Stebbins, 47 Mich. 296 ; 
 
 the definition is sustained. The reader Beals v. Hill, 58 N. H. 61 ; Mariner v. 
 
 can find them in more convenient form Milwaukee, &c. Railway, 26 Wis. 84. 
 
 99 
 
§ 274 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 judgment given. And after nonsuit, albeit the supposal in 
 the count shall not conclude, yet the bar, title, replication, or 
 other pleading of either party, which is precisely alleged, 
 shall conclude." 1 
 
 § 271. Not for this Place. — A full exposition of the sub- 
 ject of this sub-title would occupy much space with what, 
 in the main, would be remote from the law of contracts. 
 But something relevant may be set down under it; such 
 as, — 
 
 § 272. Recovering back Money. — Though, in the ordinary 
 case of money paid under compulsion while not legally due, 
 it can be recovered back by suit, it cannot be when the com- 
 pulsion was by process of law. Then the remedy is to pro- 
 cure a reversion of the record ; and, if this cannot be done, 
 the injury is without remedy .^ Again, — 
 
 § 273. Rescission of Contract. — If, in a suit involving a 
 contract, a party sets up that it is rescinded, and the case 
 goes to judgment on such theory, he cannot in any subse- 
 quent litigation with the same party claim the right to 
 carry it out as still operative.^ 
 
 III. By Deed. 
 
 § 274. Defined. — The doctrine of this sub-title is, that a 
 seal when attached to a contract imparts to it the status of 
 absolute verity, both as to the direct stipulations,* and as to 
 those recitals which in any way qualify it or give it effect,^ 
 
 1 Co. Lit. 352 6. T. R. 169, 171; Jones ». Willisms, 2 
 
 2 Harriot u. Hampton, 7 T. R. 269, Stark. 52; Norton v. Sanders, 7 J. J. 
 2Esp. 546. Mar. 12; Redman v. Bellamy, 4 Cal. 
 
 8 Martin v. Boyce, 49 Mich. 122. On 247 ; Harding v. Ambler, 3 M. & W. 
 
 the same principle, one cannot both rely 279, 283 ; Douglass v. Scott, 5 Ohio, 194, 
 
 on the nullity of a judgment and have 198. 
 
 the proceeds of a sale under it. Blessey ^ Mnnroe v. Parkhurst, 9 Wend. 209 ; 
 V. Kearny, 24 La. An. 289. And see, Cutler v. Dickinson, 8 Pick. 386 ; Bow- 
 of the like sort, Flanigan v. Turner, 1 man v. Taylor, 2 A. & E. 278, 290, 293 ; 
 Black, 491; The Mary, 1 Mason, 365; Lainson v. Tremere, I A. & E. 792; 
 Giles V. Halbert, 12 N. Y. 32 ; Bishop v. Coleman v. Bean, 14 Abb. Pr. 38 ; Way- 
 Fletcher, 48 Mich. 555. man v. Taylor, 1 Dana, 527 ; Ottawa i). 
 
 * Lit. §667; Edwards v. Bailey, National Bank, 105 U. S. 342 ; Smith w. 
 
 Cowp. 597, 601 ; Mytton ». Gilbert, 2 Burnham, 9 Johns. 306. 
 100 
 
CHAP. XI.] ESTOPPEL AS A CONTRACT. § 276 
 
 but not as to those which are merely collateral and immate- 
 rial.i The estoppel binds the parties in all controversies 
 respecting the matter of the particular contract, and third 
 persons as to whatever they claim under it, but neither third 
 persons otherwise nor the parties as to any disconnected 
 matter.^ Thus, — 
 
 § 275. Consideration. — Since the seal gives to the stipula- 
 tions absolute verity, they need not be in fact, or purport to 
 be, upon a consideration, — a doctrine which, with its modi- 
 fications, has already been explained.^ The consideration, 
 therefore, being immaterial, may, for any collateral purpose, 
 as, for example, in a suit to recover the purchase-money of 
 land conveyed by a deed in question,* be inquired into ; ^ but 
 it cannot be for the purpose of rendering the specialty void ; 
 for thereby the estoppel of the seal would be contradicted.® 
 Still,— 
 
 § 276. General and Particular. — Estoppels are not created 
 by implications, or by anything short of express terms, or, at 
 least, their equivalents^ in meaning.^ In the words of Coke, 
 they must " be a precise affirmation of that which maketh the 
 estoppel."* It is common, therefore, to say, that general 
 expressions will not suffice, there must be an affirmance of a 
 particular thing.^" For example, — 
 
 1 Zimmler v. San Luis Water Co. 57 Thayer v. Viles, 23 Vt. 494 ; Schillinger 
 Cal. 221 ; Rhine v. Ellen, 36 Cal. 362 ; v. McCann, 6 Greenl. 364. I under- 
 Osborae v. Endicott, 6 Cal. 149 ; Wal- stand such to be the true doctrine, but 
 lace V. Miner, 6 Ohio, 366. there are cases adverse ; as, Mendenhall 
 
 2 Ex parte Morgan, 2 Ch. D. 72; ». Parish, 8 Jones, N. C. 105; Hudson 
 Carter v. Carter, 3 Kay & J. 617, 4 Jur. v. Critcher, 8 Jones, N. C. 485. 
 
 N. 8. 63; Ostrander v. Hasbrouck, 3 6 ^^^g^ g 75. jryine y. McKeon, 23 
 
 Johns. 331 ; Carpenter « BuUer, 8 M. Cal. 472. 
 
 & W. 209; Ottawa v. National Bank, 6 Ante, § 124, note; Farrington v. 
 
 105 U. S. 342 ; Taylor v. Needham, 2 Barr, 36 N. H. 86 ; Goodspeed v. Puller, 
 
 Taunt. 278; Douglass v. Scott, 5 Ohio, 46 Maine, 141. 
 
 194, 198 ; Carver v. Astor, 4 Pet. 1, 83 ; "> Ante, § 241. 
 
 Crane v. Morris, 6 Pet. 598 ; O'Neal v. 8 Zimmler v. San Luis Water Co. 57 
 
 Duncan, 4 McCord, 246; Breckenridge Cal. 221; Carroll v. Smith, 111 TJ. S. 
 
 V. Ormsby, 1 J. J. Mar. 236 ; Clamorgan 556. 
 
 V. Greene, 32 Misso. 285. » Co. Lit. 3526. 
 
 ' Ante, §119-127; Mann u.Eckford, W2 Smith Lead. Cas. 2d ed. 457; 
 
 15 Wend. 502, 520. Shelley v. Wright, Willes, 9; Salter v. 
 
 * Taggart v. Stanbery, 2 McLean, Kidley, 1 Show. 58, where Lord Holt 
 
 543; Thompson v. Allen, 12 Ind. 539; says, " General recital is not an estop- 
 
 101 
 
§ 277 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 § 277. Quitclaim Deed — Warraiity. — A quitclaim deed 
 of lands carries, to the ordinary understanding, a strong im- 
 plication that the grantor has some interest in them, but it 
 affirms nothing of this in particular. So, though it passes 
 whatever interest he may chance to have, it works no estop- 
 pel ; and, should he afterward acquire a title, he may, under it, 
 hold the lands against his former grantee the same as against 
 any third person.^ And the doctrine appears further to he, 
 that even a deed which asserts a seisin and right to convey 
 does not, within the principle of the last section, negative the 
 existence of any paramount outstanding title, and so does not 
 work an estoppel as against any such title, which the grantor 
 may afterward obtain ; ^ but it does estop him from setting up 
 a title subsequently acquired inconsistent with his averment 
 of present seisin and right to convey.^ A covenant of war- 
 ranty in a deed of lands goes further. It contains within 
 itself the assertion that there exists no adverse right or title, 
 or possibility of title ; so that, should the grantor afterward 
 come into possession, by whatever means, of an adverse 
 title or claim, the estoppel in his warranty will preclude his 
 setting it up, and it will' inure to the benefit of his grantee 
 under this warranty. Such is the universal doctrine ; the 
 reasons for which, however, are not always stated in precisely 
 these terms.* In the immense variety of transactions, there 
 
 pel, but a recital of a particular fact v. Collins, 94 Ind. 201 ; Comstock v. 
 
 is so." Smith, 13 Pick. 116; White ». Patten, 
 
 1 Lit. § 446 ; Weidman v. Hubble, 1 24 Pick. 324 ; Wark v. Willard, 13 N. H. 
 Cow. 613; Robertson O.Wilson, 38 N.H. 389; Churchill v. Terrell, 1 Bush, 54; 
 48 ; Kinsman v. Loomis, 11 Ohio, 475 ; Bush v. Marshall, 6 How. U. S. 284, and 
 McCrackin v. Wright, 14 Johns. 193 ; multitudes of other cases. As to the 
 Harriman v. Gray, 49 Maine, 537 ; Bell English doctrine, see Helps v. Hereford, 
 V. Twilight, 6 Fost. N. H. 401 ; Pike v. 2 B. & Aid. 242. The doubts, occasion- 
 Galvin, 29 Maine, 183. ally expressed, concerning this doctrine, 
 
 2 Allen ?;. Sayward, 5 Greenl. 227. have evidently their origin in the imper- 
 And see, as within this principle, Doane feet reasons for it sometimes assigned. 
 V. Willcutt, 5 Gray, 328. Ante, § 12. But the real reasons — the 
 
 8 French v. Spencer, 21 How. U. S. lav/s reasons (ante, § 14-16) — are con- 
 
 228. elusive. It being established that, as 
 
 * Raines i-. Walker, 77 Va. 92 ; Cur- between the parties and their representa- 
 
 ran w. Burdsall, 20 Fed. Rep. 835 ; tives, the seal gives verity to the deed 
 
 House V. McCormick, 57 N. Y. 310 ; and its recitals, if, after a grantor has 
 
 Crake v. Boot, 2 Colo. 685; Hannah negatived under his seal, and thereby 
 
 102 
 
CHAP. XI.] ESTOPPEL AS A CONTRACT. § 280 
 
 are, on the one side and on the other, cases within the general 
 range of this section, yet, in their particulars, not quite within 
 any of these propositions. But the principles here stated will 
 suffice for their solution.^ Of course, a warranty in a deed 
 which is unlawful and therefore void works no estoppel.^ 
 
 § 278. other Illustrations — of the doctrine of estoppel by 
 deed are numerous in the books ; but the considerate reader, 
 who alone has any just right to solicit from clients the charge 
 of their legal interests, will have no difficulty in applying to 
 the cases, as they arise in practice, the simple rules already 
 stated and illustrated. 
 
 § 279. Double Reasons. — Many conclusions of the law rest 
 on two or more distinct reasons or lines of reasoning, any 
 one of which will be adequate ; and all of which would, if 
 stated in a text-book together, be confusing to the reader. 
 No thoughtful writer, when he assigns one reason and no 
 more, means to be understood that no more exist. Some 
 of the conclusions to be stated in our next sub-title are, 
 where there is an instrument under seal, equally deducible 
 from the doctrines of this. 
 
 IV. In Pais. 
 
 § 280. Importance. — The specially-important part of the 
 doctrine of estoppel, when viewed as a branch of the law of 
 contracts, is termed, with equal propriety, estoppel by matter 
 in pais, or equitable estoppel. It is of wide application and 
 highly beneficial, even in many circumstances indispensable to 
 justice.^ 
 
 has estopped himself to deny, any and Blanchard v. Ellis, 1 Gray, 195 ; Pope v. 
 
 every present or prospective interest in Henry, 24 Vt. 560 ; Pratt v. Phillips, 1 
 
 the land (for such is the effect of the Sneed, Tenn. 543; Teal ». Woodworth, 
 
 ordinary warranty), he was permitted to 3 Paige, 470 ; Bush v. Person, 18 How. 
 
 come in with a title afterward acquired U. S. 82 ; Eigg v. Cook, 4 Oilman, 336. 
 
 and oust his grantee, the deed would be These cases will suffice for illustration, 
 
 just as effectually overthrown as though Possibly not all were decided correctly, 
 
 his title were of a prior date. There is but the reader can judge for himself. 
 
 no room for doubt on this question. '^ Atkinson v. Bell, 18 Texas, 474 ; 
 
 1 See, for example, ColUns v. Box, Mytton v. Gilbert, 2 T. R. 169 ; Langan 
 
 40 Texas, 190; Gonzales v. Hukil, 49 v. Sankey, 55 Iowa, 52. 
 
 Ala. 260; Way v. Arnold, 18 Ga. 181 ; » Ante, § 266. 
 
 103 
 
§ 283 IN GENERAL WITH ILLUSTEATIONS, [BOOK I. 
 
 § 281. Law or Equity. — The estoppels of this class "are 
 called equitable," says a learned judge, "not because their 
 recognition is peculiar to equitable tribunals, but because they 
 arise upon facts which render their application in the protec- 
 tion of rights equitable and just. Courts of equity recognize 
 them in cases of equitable cognizance, but the courts of com- 
 mon law just as readily and freely ; and it is never necessary 
 to go into equity for the mere purpose of obtaining the bene- 
 fit of an equitable estoppel, when the case is not otherwise of 
 equitable jurisdiction." ^ This is the general American doc- 
 trine,* but in a few of our States the courts seem inclined to 
 give these estoppels a somewhat wider effect in equity than 
 at law.' 
 
 § 282. Promote Justice. — A leading doctrine, to which all 
 the other doctrines of this sub-title are subordinate, is, that 
 the purpose of the equitable estoppel is to prevent fraud and 
 promote justice, and it will be applied only where such will 
 be its effect.* For example, it can be invoked neither in 
 aid of a fraudulent scheme,^ nor in favor of one who has en- 
 trapped another into the admission set up to estop him.® 
 
 § 283. Quasi Contract, and how. — This estoppel creates a 
 species of contract, of the executed sort, therefore not re- 
 quiring a consideration,'' and not commonly the foundation 
 for a suit. Ordinarily, one simply stands upon it. And it 
 resembles a specialty in that, as explained' in the last sub-title, 
 it cannot be contradicted. One of the distinctions seems to 
 be, that, when a contract created by law is in the executed 
 form, it is called an estoppel in pais; when it is executory, it 
 is known by the other name. 
 
 1 Cooley, J. in Barnard v; German- 426 ; MeAfEerty v. Conover, 7 Ohio 
 American Seminary, 49 Mich. 444. State, 99 ; Eidgway v. Morrison, 28 Ind. 
 
 2 Dickerson v. Ripley, 6 Ind. 128. It 201 ; Buckingham v. Hanna, 2 Ohio 
 wonld be useless to multiply authorities State, 551. 
 
 to this ; they are cited, in sufficient num- 5 Royce v. Watrous, 73 N. Y. 597. 
 hers, in Barnard v. German-American ^ Stanford v. Lyon, 10 Stew. Ch. 94. 
 
 Seminary, supra. And see Rochester Ins. Co. v. Martin, 
 
 * See, for example, Kelly v. Hen- 13 Minn. 59; Thorne B. Mosher, 5 C. E. 
 dricks, 57 Ala. 193. Green, 257. 
 
 * Ante, § 266; Mills v. Graves, 38 ' Ante, § 81. 
 111. 455; Thomas v. Bowman, 29 III. 
 
 104 
 
CHAP. XI.] 
 
 ESTOPPEL AS A CONTRACT. 
 
 §285 
 
 § 284. Defined. — The doctrine is, that, whenever one per- 
 son sustains to another a relation wherein social or legal duty- 
 demands of him to disclose a fact, and, either by silence or 
 by words, he wilfully, or even through culpable carelessness, 
 misleads the other, who in reliance thereon does some act 
 detrimental but for such fact, the fact will, as between the 
 parties and persons claiming under them,^ be conclusively 
 held to be as thus represented.^ 
 
 § 285. As to which. — This definition embraces, in essence, 
 the entire doctrine of the subject ; and it is exactly adapted 
 to the more numerous class of cases. But, for cases of other 
 classes, some other expression would better cover the special 
 form of the facts ; as, for example, — 
 
 Assumed or recited in Contract. — If parties contracting. 
 
 1 Ante, § 267. 
 
 ' The Minnesota court has defined : 
 "An estoppel in pais arises when one, 
 by his acts or representations, or by his 
 silence when he ought to speak out, in- 
 tentionally, or through culpable negli- 
 gence, induces another to believe certain 
 facts to exist, and such other rightfully 
 acts, on the belief so induced, in such 
 manner that, if the former be permitted 
 to deny the existence of such facts, it 
 will prejudice the latter." Pence v. 
 Arbuckle, 22 Minn. 417; Hawkins v. 
 Methodist Episc. Ch. 23 Minn. 256. In 
 England : " A party, who negligently or 
 culpably stands by and allows another 
 to contract on the faith and understand- 
 ing of a fact which he can contradict, 
 cannot afterwards dispute that fact in 
 an action against the person whom he 
 has himself assisted in deceiving." Lord 
 Denman, C. J. in Gregg v. Wells, 10 
 A. & E. 90, 98. As to which, and the 
 less comprehensive defining in Pickard 
 1.-. Sears, 6 A. & E. 469, 474, see the 
 observations of Parke, B. in Freeman v. 
 Cooke, 2 Exch. 654, 662, 663. Again : 
 "If, in the transaction itself which is 
 in dispute, one has led another into the 
 belief of a certain state of facts, by con- 
 duct of culpable negligence calculated 
 to have that result, and such culpable 
 
 negligence has been the proximate cause 
 of leading and has led the other to 
 act, by mistake, upon such belief to his 
 prejudice, the second cannot be heard 
 afterwards, as against the first, to show 
 that the state of facts referred to did not 
 exist." Brett, J. in Carr v. London, 
 &c. Railway, Law Rep. 10 C. P. 307, 
 318. And see Phillips v. Im Thurn, 
 Law Rep. 1 C. P. 463; Continental 
 Bank v. Commonwealth Bank, 50 N. Y. 
 575 ; Helmsley v. Loader, 2 Camp. 450 ; 
 Lipscombe v. Holmes, 2 Camp. 441 ; 
 O'Brien v. Wetherell, 14 Kan. 616; 
 Gotham v. Gotham, 55 N. H. 440 ; 
 Richmond v. Dubuque, &c. Railroad, 33 
 Iowa, 422 ; Carroll v. Manchester, &c. 
 Railroad, 111 Mass. 1 ; Connihan v. 
 Thompson, 111 Mass. 270; Mercer Min- 
 ing and Mannf. Co. v. McKee, 27 Smith, 
 Pa. 170; Hooker v. Hubbard, 102 Mass. 
 239; Eaton v. Winnie, 20 Mich. 156; 
 Kuhl V. Jersey City, 8 C. E. Green, 84 ; 
 Payne v. Burnhara, 62 N. Y. 69 ; Con- 
 rad V. Gallery, 22 La. An. 428 ; Barnard 
 V. Campbell, 55 N. Y. 456; Baltes v. 
 Ripp, 1 Abb. Ap. Dec. 78; Lacy ». Wil- 
 son, 24 Mich. 479 ; Timon v. White- 
 head, 58 Texas, 290 ; Cowles v. Bacon, 
 21 Conn. 451 ; Taylor v. Ely, 25 Conn. 
 250. 
 
 105 
 
§ 286 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 even without seal,^ recite or otherwise assume, by the writ- 
 ten or oral words which constitute the contract, facts serving 
 to qualify or limit it or its effect or interpretation, each, to- 
 gether with those claiming under him, as against the other and 
 his legal representatives, is estopped to deny such facts in any 
 controversy under the contract.^ But this defining is in sub- 
 stance the same as our larger definition ; for here there is 
 a mutual duty to disclose the facts, each states them to the 
 other, who acts upon them ; and, if they are not true, one is 
 misled to his injury ; hence the law holds them conclusively 
 to be true. Again, — 
 
 § 286. Accepting Benefit. — One who accepts a benefit is 
 thereby estopped to den}' the existence or validity of that in 
 return for which it came to him.^ Thus, a person who re- 
 ceives and retains purchase-money affirms the sale.* One 
 who takes the damage-money for laying out a way over his 
 land is precluded from questioning the validity of the laying- 
 out proceedings.^ A person who has received from a corpo- 
 ration a loan, and secured it by a mortgage, cannot on a 
 foreclosure suit deny the power of the corporation to make 
 the loan.^ The taking of what is given under an award 
 estops the taker to controvert its validity.^ And if the licens- 
 ing power under liquor laws receives the fee and approves 
 
 1 Ante, § 274, 279 ; Carpenter v. this title. And compare specially with 
 
 Bailer, 8 M. & W. 209, 212. ante, § 274. 
 
 ^ This definition, like all the rest, ^ Hall Manuf. Co. v. American Ky. 
 
 comes less from a single case than from Sup. Co. 48 Mich. 331 ; Miller v. Mc- 
 
 the combined cases, ante, § 217, note; Manis, 57 III. 126; Helena v. Turner, 
 
 such as Moale v. Baltimore, 56 Md. 496 ; 36 Ark. 577 ; Bynum v. Miller, 86 N. C. 
 
 Hunter v. Miller, 6 B. Monr. 612; 559; Hardigree v. Mitchum, 51 Ala. 
 
 Drury w. Fay, 14 Pick. 326; Dikeman 151; Stone v. Gilman, 58 N. H. 135; 
 
 V. Norrie, 36 Cal. 94; Palmer v Smith, Hooker v. Hubbard, 102 Mass. 239. 
 10 N. Y. 303, 306 ; Lewis v. Hodgdon, * Maple v. Kussart, 3 Smith, Pa. 
 
 17 Maine, 267 ; Sinclair r. Murphy, 14 348; Hathaway v. Payne, 34 N. T. 92, 
 
 Mich. 392 ; Loffus v. Maw, 8 Jur. N. s. 103. 
 
 607; Phoenix Ins. Co. v. McLoon, 100 ^ Hartshorn v. Potroil, 89 111. 509; 
 
 Mass. 475 ; Phenix Ins. Co. v. Findley, Chatterton v. Parrott, 46 Mich. 432. 
 59 Iowa, 591 ; Dn Val ?'. Marshall, 30 6 Pancoast v. Travellers Ins. Co. 79 
 
 Ark. 230; Hall v. Harris, 16 Ind. 180; Ind. 172. To the like effect, St. Joseph 
 
 Depew V. Limestone Bank, 1 J. J. Mar. Fire, &c. Co. v. Hauck, 71 Misso. 465. 
 378. The truth of the definition ap- ' Kellogg v. United States, 1 Ct. of 
 
 pears also from a comparison of various CI. 310. 
 propositions interspersed throughout 
 
 106 
 
CHAP. XI.] ESTOPPEL AS A CONTRACT. § 288 
 
 the bond, it cannot set up informalities to revoke the license.^ 
 These cases are, in effect, though not in form, within our 
 general definition. Turning back to that definition,^ and 
 copying in substance its terms, we have the following. The 
 parties, in these several cases, were under the mutual duty to 
 deal honestly with the facts. The one who received the ben- 
 efit affirmed, equally with the other, the truth of that in return 
 for which it was given. And the latter, by bestowing it in 
 reliance on the assumed fact, did an " act detrimental but for 
 such fact ; " that is, from which detriment will come to him 
 if the fact is overthrown. Hence, as between the parties and 
 those claiming'under them, the fact must thereafter be con- 
 clusively held to be as thus affirmed. 
 
 § 287. Elements — Division of Subject. — The elements of 
 this estoppel, which together constitute it, and without which 
 in combination, either formal or in essence, it cannot exist,^ 
 are. First, Misrepresentation contrary to Duty ; Secondly, 
 Evil Intent therein ; Thirdly, Reliance and Injurious Acting 
 on the Misrepresentation. After considering them in their 
 order, we shall add something concerning, Fourthly, The 
 Elements in Combination ; Fifthly, Further Views. 
 § 288. First. Misrepresentation contrary to Duty : — 
 Duty — Relations of Parties. — One's misrepresentations 
 estop liim only when the circumstances make some sort of call 
 on him for the truth.* If, for example, he is asked about 
 a thing by another who, as he reasonably supposes, has no in- 
 terest in it, or intention of acting on the information, he is 
 not estopped though he gives a false answer and the other 
 does act thereon.^ And simply to refuse information will not 
 necessarily work an estoppel where misleading the questioner 
 would ; as, to decline disclosing, to a person inquiring for his 
 own guidance, the nature of one's title to property in posses- 
 
 ' Oshkosh V. The State, 59 Wis. 425. Hazlett, 9 Casey, Pa. 307 ; Wooley v. 
 
 " Ante, § 284. Edson, 35 Vt. 214 ; Shaw v. Beebe, 35 
 
 » Holmes v. Crowell, 73 N. C. 613 ; Vt. 205. 
 Barnard v. Campbell, 55 N. Y. 456; * Hambleton v. Central Ohio Eail- 
 
 Copeland v. Copeland, 28 Maine, 525 ; road, 44 Md. 551. 
 Califf V. Hillhouse, 3 Minn. 311 ; Tay- ' Durant v. Pratt, 55 Vt. 270. 
 lor V. Zepp, 14 Misso. 482 ; Eldrcd v. 
 
 107 
 
§ 292 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 sion.i Information imparted must, to work an estoppel, be 
 to one having some right to it ; ^ or, if to the community at 
 large, be appropriated by one having right. An illustration 
 of the latter is where a party holds out as his agent or partner 
 another who is not such in fact ; he is estopped to deny the 
 agency or partnership to one who in good faith deals with the 
 person in that capacity.^ And the like rule applies to one who 
 thus pretends to be himself a partner.* 
 
 § 289. Under Oath. — It is held by some tribunals that, if 
 one makes a disclosure in due form under oath, any other 
 person having an interest is entitled to act thereon, and the 
 former will be estopped, as to him, to deny its truth.^ Others 
 do not so adjudge.^ The former doctrine is wholesome, and 
 there would seem to be no principle of law forbidding it. 
 
 § 290. "Words — Conduct — Silence. — - It is immaterial 
 whether the misrepresentation is by words,'' or by conduct,' 
 or by silence where duty requires the person to speak.^ 
 
 § 291. Nature of Misrepresentation. — The misrepresenta- 
 tion, to work an estoppel, must be distinct and unequivocal,^" 
 not admitting of an interpretation by which its effect would 
 be less.^^ Further than this, nothing more appears to be 
 required than that it should proceed from the purpose and 
 produce the consequence about to be stated. 
 
 § 292. Secondly. Evil Intent : — 
 
 Fraud. — The general doctrine is, that an equitable estoppel 
 is the response of the law to a party's intentional fraud, com- 
 
 1 Cunningham v. Milner, 56 Ala. ' Boyce v. Kalbangh, 47 Md. 334 ; 
 522. Williams v. "Wells, 62 Iowa, 740 ; Funk 
 
 2 Sullivan u. Park, 33 Maine, 438. v. Newcomer, 10 Md. 301; Osborn v. 
 « Thompson u. Toledo Bank, 111 Elder, 65 Ga. 360 ; Mayer ». Ramsey, 46 
 
 U. S. 529; Union Mut. Life Ins. Co. Texas, 371. 
 
 V. White, 106 111. 67 ; Airey v. Okolona « Hogan v. Brooklyn, 52 N. T. 282; 
 
 Savings Inst. 33 La. An. 1346. Walker y. Flint, 3 McOrary, 507; Broyles 
 
 * Kirk 17. Hartman, 13 Smith, Pa. 97. v. Nowlin, 3 Baxter, 191; Wilson i». 
 
 * Aiusworth v. Miller, 20 Kan. 220; Sherffbillich, 30 Minn. 422; Austin v. 
 Cooley V. Steele, 2 Head, 605 ; Nelson Loring, 63 Misso. 19. 
 
 V. Claybrooke, 4 Lea, 687. l» Ante, § 276. 
 
 6 Smith t). Cremer, 71 111. 185; Du- "Ware v. Cowles, 24 Ala. 446; 
 rant v. Pratt, 55 Vt. 270. Thompson v. Thompson, 9 Ind. 323 ; 
 
 7 Kirkpatrick v. Brown, 59 Ga. 450; Tainter v. Winter, 53 Maine, 348; Can- 
 Sherrill v. Sherrill, 73 N. C. 8. ning v. Harlan, 60 Mich. 320. 
 
 108 
 
CHAP. XI.] ESTOPPEL AS A CONTRACT. § 295 
 
 pelliiig him to stand to the truth of that wherewith he meant 
 to mislead another to his injury .^ It may be deemed a branch 
 of the wider rule, that no one shall rely, in a court of justice, 
 on his own fraud as a ground either of action or defence.^ 
 The elements are — 
 
 § 293. Knowledge — (Mistake). — Ordinarily, if a person 
 is mistaken as to a fact, and states what he believes to be 
 true, no estoppel will follow though an innocent party accepts 
 and acts upon the erroneous utterance to his injury.^ And 
 one's right to rely on such mistake of fact in bar of the estop- 
 pel has been supposed to extend also to a mistake of law;* 
 but, on the other hand, the better doctrine is believed to be, 
 that, since every one is conclusively presumed to know the 
 law, a misstatement of it cannot be assumed to have influenced 
 the person to whom it was made, hence cannot constitute an 
 estoppel.^ And — 
 
 § 294. Carelessness. — One's gross carelessness mayT^ in 
 the criminal law,^ supply the place of knowledge ; so that 
 ignorance, produced by the carelessness, will not take away 
 the estopping effect of the misstatement. The commonly ac- 
 cepted rule is, that the carelessness, or negligence, must in 
 degree be gross, or equivalent to actual or constructive fraud.^ 
 Hence, — 
 
 § 295. Design to Mislead. — Not in all circumstances need 
 there be, to complete the estoppel, an actual purpose to mis- 
 lead,^ however effective against the party such purpose would 
 
 1 Morgan ». Railroad, 96 U. S. 716; 73 N. C. 613; Steele v. Putney, 15 
 Blount V. Eobeson, 3 Jones Eq. 73 ; Maine, 327 ; Wright v. Thomas, 26 Ohio 
 Dorlarqne v. Cress, 71 III. 380; Sutton State, 346. 
 
 V. Wood, 27 Minn. 362 ; Bailey v. United * Newton v. Liddiard, 12 Q. B. 925. 
 
 States, 15 Ct. of CI. 490. ^ Plact v. Scott, 6 Blackf. 389 ; Hart 
 
 2 Montefiori v. Montefiori, 1 W. Bl. v. Bullion, 48 Texas, 278. See Mayer 
 363; Roberts v. Roberts, 2 B. & Aid. v. Ramsey, 46 Texas, 371. 
 
 367, 368 ; Holman v. Johnson, Cowp. ^ 1 Bishop Crim. Law, 303 o, note, 
 
 341, 343 ; Jones v. Yates, 9 B. & C. 532, 313 et seq. 
 
 539. ' Brant v. Virginia Coal, &c. Co. 93 
 
 * Fay V. Tower, 58 Wis. 286 ; Thrall U. S. 326 ; Trenton Banking Co. v. 
 
 V. Lathrop, 30 Vt. 307 ; Turner v. Fer- Duncan, 86 N. Y. 221 ; Mayer v. Er- 
 
 guson, 58 Texas, 6 ; Clinton v. Haddam, hardt, 88 111. 452 ; Sutton v. Wood, 27 
 
 50 Conn. 84 ; Colbert v. Daniel, 32 Ala. Minn. 362 ; Bailey v. United States, 15 
 
 314 ; Davis v. Davis, 26 Cal. 23 ; Keys Ct. of CI. 490. 
 
 V. Test, 33 111. 316 ; Holmes v. Crowell, 8 Beebe v. Wilkinson, 30 Minn. 548. 
 
 109 
 
§ 296 IN GENERAL WITH ILLUSTEATIONS. [bOOK I. 
 
 be ill some other cases. If, for example, he was under a duty 
 to speak, of a sort suggesting to extreme caution, and he knew 
 that the other party was relying on his statement in a matter 
 of great pecuniary importance, he would be specially obligated 
 to avoid mistake ; and, whenever justice in the particular in- 
 stance required, would be estopped, however free from inten- 
 tional blame his conduct. Where the result thus depends on 
 varying complications of facts, there cannot be for it an exact 
 rule.^ If, to illustrate one aspect of the question, a person 
 contemplating the purchase of another's note applies to him 
 and is told there is no defence thereto, such maker, if fully 
 informed of the reasons for the inquir)', will be estopped to 
 set up against the purchaser a defence however just in itself, 
 and however honestly he misled the other.^ It is the same 
 when one thus acknowledges, for a like purpose, his signature 
 to what proves to be a forgery.* 
 
 § 296. Thirdly. Reliance and Injurious Acting on the Mis- 
 representation : — 
 
 In General. — Tlie estoppel takes place only when the party 
 to whom the misrepresentation is made relies and acts upon 
 it to what, but for the estoppel, would be his injury; or, 
 as the expression sometimes is, " to the injurious altering of 
 his position."* If the one complaining knew the facts, and 
 proceeded on his knowledge, and not on what the other said, 
 there is no estoppel.^ And it is the same where the act was 
 one of submission to a supposed superior authority.^ Indeed, 
 
 1 Compare Coleman v. Pearce, 26 man u. Cooke, 2 Exch. 654; Brown e. 
 
 Minn. 123; Winslow w. Cooper, 104 III. Wheeler, 17 Conn. 345; Preston v. 
 
 235; Gilbert w. Groff, 28 Hun, 50 ; Blair Mann, 25 Conn. 118; Heath r. Derry 
 
 V. Wait, 69 N. Y. 1 13 ; Tiffany v. An- Bank, 44 N. H. 174 ; Wilson v. Cobb, 1 
 
 derson, 55 Iowa, 405 ; Raley t). Williams. Stew. Ch. 177; Holmes v. Crowell, 73 
 
 73 Misso. 310 ; Farley v. Pettes, 5 Misso. N. C. 613 ; Morgan v. Railroad, 96 U. S. 
 
 Ap. 262; PVeston v. Mann, 25 Conn. 716; Murray v. Mann, 2 Exch. 538; 
 
 118; Andrews v. Lyons, 11 Allen, 349. Watson v. Poulson, 15 Jur. I'Ul; Mid- 
 
 " Simpson v. Moore, 5 Lea, 372 ; land Railroad v. Hitchcock, 10 Stew. 
 
 Hoover v. Kilander, 83 Ind. 420 ; Carey Ch. 549 ; Johnson v. Byler, 88 Texas, 
 
 V. Dunsmore, 58 N. H. 357 ; Plummer 606. 
 
 V. Farmers Bank, 90 Ind. 386. » McCune ». McMichael, 29 Ga. 312. 
 
 8 Leach v. Buchanan, 4 Esp. 226, « Jersey City v. The State, 1 Vroom, 
 
 228. 621. 
 
 * Wythe V. Salem, 4 Saw. 88; Free- 
 
 110 
 
CHAP. XI.] ESTOPPEL AS A CONTRACT. § 299 
 
 want of previous knowledge of the facts, good faith, believ- 
 ing what is falsely represented to be true, and acting on the 
 erroneous belief thus induced, are, severally and conjointly, 
 indispensable elements.^ 
 
 § 297. Fourthly. The JSlements in Combination: — 
 
 Illustrations. — It is proposed now to give some illustra- 
 tions of estoppels created by the combined action of the fore- 
 going elements. Thus, — 
 
 § 298. Own Property sold. — If one discovers that his own 
 property, real or personal, is being sold by a third person to 
 another who is about to purchase it in ignorance of any de- 
 fect in the title, the duty due from every man to every other 
 demands of him to make known his ownership. Then, if he 
 does not, and especially if he entices the purchaser to buy, or 
 if he is guilty of any other deceit or neglect amounting to a 
 fraud, in consequence of which the purchase is made, he is 
 estopped ever after to claim the property ; so that practically 
 the purchaser gets a good title.^ 
 
 § 299. other like Cases. — The cases similar to the fore- 
 going, or depending on like principles, are apparently limitless 
 in number and aspect. Thus, after one has sold as his own 
 another's chattel, if the owner collects to his own use a note 
 which he knows the purchaser gave for it, he is estopped to 
 assert title to the chattel.^ One, bitten by a dog, inquired of 
 another if he owned it. The latter, knowing that the ques- 
 
 1 Plammer v. Mold, 22 Minn. 1.5; Mass. 270; Burnell ti. Maloney, .39 Vt. 
 
 Brant v. Virginia Coal, &c. Co. 93 U. S. 579. 
 
 326; Trenton Banking Co. w. Duncan, ^2 Bishop Mar. Women, § 487'; 
 86 N. Y. 221 ; Graves v. Blondell, 70 Winchell v. Edwards, 57 111. 41 ; Leeper 
 Maine, 190; Andrews u. ^tna Life Ins. v. Hersman, 58 111. 218; Davidson v. 
 Co. 85 N. Y. 334 ; Hambleton v. Central Silliman, 24 La. An. 225 ; Miller v. 
 Ohio Railroad, 44 Md. 551 ; Mutual Life Springer, 20 Smith, Pa. 269 ; Dean v. 
 Ins. Co. V. Norris, 4 Stew. Ch. 583 ; Martin, 24 La. An. 103 ; Trowbridge v. 
 O'Mulcahy v. Holley, 28 Minn. 31 ; St. Matthews, 28 Wis. 656 ; Sweezey v. Col- 
 Joseph Manuf. Co. v. Daggett, 84 111. lins, 40 Iowa, 540 ; Funk v. Newcomer, 
 556 ; McAfferty v. Conover, 7 Ohio 10 Md. 301 ; Sherrill v. Sherrill, 73 N. C. 
 State, 99 ; Pounds v. Richards, 21 Ala. 8 ; Vilas v. Mason, 25 Wis. 310 ; Mason v. 
 424 ; Dnell v. Bear River, &c. Co. 5 Cal. Williams, 66 N. C. 564 ; Gregg v. Wells, 
 84 ; Stanley v. Green, 12 Cal. 148 ; Car- 10 A. &E. 90 ; Hardin v. Joice, 21 Kan. 
 roll V. Manchester, &c. Railroad, 111 318; Miles w. Lefi, 60 Iowa, 168. See 
 Mass. 1 ; Connihan v. Thompson, 111 Brown w. Tucker, 47 Ga. 485. 
 
 8 Moore v. Hill, 85 N. C. 218. 
 
 Ill 
 
§500 
 
 IN GENERAL WITH ILLUSTRATIONS. 
 
 [book I. 
 
 tion was asked to ascertain who was liable, affirmed owner- 
 ship ; and he was held to be estopped from denying it when 
 sued.^ So where a party, answering a demand upon another 
 for a thing, declares that he has it himself, thereby inviting 
 an action against himself, he cannot thereon deny the posses- 
 sion.2 If, on an irregularly issued execution, the defendant 
 sees his property sold without protesting, he cannot claim the 
 proceeds on the ground of the irregularity.^ And where one 
 stands by while his personal effects are being converted by 
 another in good faith,* and, knowing all, does not protest, he 
 is estopped from afterward claiming them.^ But, not to mul- 
 tiply this class of illustrations, — 
 
 § 300. Same as to Real Estate. — One who, with full knowl- 
 edge that the title to particular lands is in dispute, encourages 
 another who is ignorant of the adverse claim to settle on and 
 improve the lands, will not be permitted afterward to allege 
 anything against the title.® But if the person making im- 
 
 1 Robb V. Shephard, 50 Mich. 189. 
 
 2 Hall V. White, 3 Car. & P. 136. 
 As to which. — This case and the last 
 carry the doctrine of estoppel in this 
 particular direction quite as fer as it will 
 bear. Where, during the pendency of an 
 action for a money judgment, the plain- 
 tiffs inquired of a third person, with a 
 view to garnishee him, whether he owed 
 the defendant, and he admitted an in- 
 debtedness, he was held not estopped to 
 deny it on garnishment proceedings 
 thereupon instituted. The court deemed 
 that this case was not distinguishable 
 from any other in which a person ac- 
 knowledges an indebtedness and is then 
 sued. " Yet," said Taylor, J., " we are 
 forced to admit that the learned counsel 
 has cited ns to some decisions, and we 
 have found one not cited, which seem 
 to give countenance to that doctrine. 
 Meister v. Birney, 24 Mich. 435 ; Fin- 
 negan v. Carraher, 47 N. Y. 493 ; Hall 
 V. White, 3 Car. & P. 136. But, when 
 examined, we think they fall far short 
 of sustaining the views of the learned 
 counsel for the respondent." Warder v. 
 Baker, 54 Wis. 49, 54. The true dis- 
 tinction is believed to be, that if one in 
 
 112 
 
 the ordinary case simply concedes an 
 indebtedness, either in general or in a 
 particular sum, this is but prima facie 
 evidence against him, and he is not es- 
 topped; but if, understanding that the 
 inquiry is made with a view to a con- 
 templated suit, he makes, not a general 
 acknowledgment (ante, § 276), but a 
 particular representation of some precise 
 and essential fact, and the party brings 
 his suit in reliance thereon, the estoppel 
 takes effect. There may be circumstances 
 in which the precise application of the 
 doctrine will be open to dispute. 
 
 3 Slagel V. Murdock, 65 Misso. 522. 
 A case somewhat similar is Austin v. 
 Loring, 63 Misso. 19. Compare with 
 Holmes v. Steele, 1 Stew. Ch. 173; Sel- 
 lars V. Cheney, 70 Ga. 790 ; Tribble v. 
 Anderson, 63 Ga. 31. 
 
 * Ante. § 296. 
 
 5 Hogan V. Brooklyn, 52 N. Y. 282 ; 
 Hentz V. Miller, 94 N. Y. 64. 
 
 ^ McCorraiok v. McMurtrie, 4 Watts, 
 192 ; McKelvey v. Truby, 4 Watts & S. 
 323 ; Beaupland v. McKeen, 4 Casey, Pa. 
 124; Steel v. Smelting Co. 106 U. S. 
 447. 
 
CHAP. XI.] ESTOPPEL AS A CONTRACT. § 302 
 
 provements knows that he has no title,^ he cannot invoke 
 this rule for his protection.^ The principle applies in all cases 
 where an owner of real estate, in bad faith, sees another, in 
 good faith, by the expenditure of money or otherwise, " inju- 
 riously altering his position "^ to it without protesting, or 
 notifying him of the facts, even though he does not, and 
 especially if he does, actively encourage him ; such owner 
 is estopped to allege afterward anything in conflict with 
 the " injuriously altered position." The minor forms which 
 this doctrine assumes in the varying cases are innumerable.* 
 One is — 
 
 § 301. Building on Land. — Though a conveyance of land 
 otherwise than by a writing under seal is ineffectual, still, 
 under the doctrine of estoppel, if a father orally promises his 
 son to deed to him a lot on his erecting a house upon it, the 
 father is, when the house is built, estopped from setting up 
 his title to the land as against the son.^ Even more broadlj', 
 if any one, claiming lands, stands by and sees another in 
 good faith putting a building thereon, supposing them to be 
 his own, and neither objects nor discloses his title, he cannot 
 assert ownership afterward ; ® or, should he afterward agree to 
 a rent to be paid for the building, neither party can dispute 
 the right of the builder to use the land.'^ In like manner, — 
 
 § 302. Division Line. — If adjoining proprietors recognize 
 
 J Ante, § 296. one person will not be permitted, in 
 
 2 Steel V. St. Louis Smelting, &c. equity, to enrich himself by the loss or 
 
 Co., supra, at p. 456. at the expense of another, when the 
 
 * Ante, § 296. loss would have been avoided had the 
 
 * Griffin v. Lawrence, 135 Mass. 365 ; former acted honestly and in good faith. 
 Evans v. Snyder, 64 Misso. 516; Fre- His silence, in such case, is tantamount 
 mont Ferry v. Dodge, 6 Neb. 18; St. to a fraudulent concealment of his title, 
 Louis Smelting, &c. Co. v. Green, 4 and to the extent that the party in pos- 
 McCrary, 232 ; Boyce v. Kalbangh, 47 session has been thereby misled into the 
 Md. 334 ; Wilson v. Vaughn, 40 Iowa, making of improvements that he other- 
 179; Ross v. Thompson, 78 Ind. 90; wise would not have made, a court of 
 Texas, &c. Railroad v. Jarrell, 60 Tex- equity grants relief by charging the 
 as, 267 ; Slocumb v. Chicago, &c. Rail- value of the improvements as a lien 
 road, 57 Iowa, 675 ; Chicago, &c. Rail- upon the estate to which they have been 
 way w. People, 91 111. 251. — In Equity, added." Boynton, J. in Preston v. 
 — Where, in these circumstances, im- Brown, 35 Ohio State, 18, 28, 29. 
 provements have been made on lands, ° Campbell v. Mayes, 38 Iowa, 9. 
 equity will enforce a lien. " The doc- « Walker v. Flint, 3 McCrary, 507. 
 trine proceeds upon the principle that ' Mold v. Wheatcroft, 27 Beav. 510. 
 
 8 113 
 
§ 305 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 a particular line as the true dividing one, and one of tliem 
 erects improvements and maintains undisputed possession for 
 many years, the other will be estopped though the line was 
 erroneous, and the Statute of Limitations has not fully run.^ 
 The cases of this general sort vary in their particulars, but 
 the proposition thus stated bears a leading part in their solu- 
 tion.2 Once more, — 
 
 § 303. Witnessing Deed. — It is no contradiction of the 
 foregoing principles to hold, as the courts do, that one who 
 subscribes his name as witness to a deed of lands is not pre- 
 sumed to know its contents ; hence, though they should be 
 his own, is not estopped thereby to claim them. But if his 
 knowledge is aflSrmatively shown, it will work the estoppel.^ 
 Again, — 
 
 § 304. Existence of Corporation. — One cannot, in the same 
 transaction, both affirm and deny the existence of a corpora- 
 tion ; as, if he gives a note running to it, he is estopped, when 
 called on for payment, to dispute its corporate being,* and it 
 is the same after he has made with it any other contract.* On 
 the other hand, a de facto corporation is estopped to deny, to 
 those who deal with it, its corporate existence, though not 
 that such existence has subsequently ceased.® If there is 
 fraud, it may modify these propositions. '^ And — 
 
 § 305. Under Will. — One accepting a benefit under a will 
 is estopped from asserting a claim repugnant to its provisions.* 
 But in various circumstances, steps taken in apparent recog- 
 
 1 Majors v. Rice, 57 Misso. 384. See ^ Butchers, &c. Bank v. McDonald, 
 Day u.'Caton, 119 Mass. 513 ; Columbet 130 Mass. 264 ; Jones v. Kokomo Build- 
 V. Pacheco, 48 Cal. 395. ing Assoc. 77 Ind. 340 ; Newburg Pe- 
 
 2 Hartung v. Witte, 59 Wis. 285; troleum Co. v. Weare, 27 Ohio State, 
 Hass V. Plautz, 56 Wis. 105 ; Cooper v. 343. See AUer v. Cameron, 3 Dillon, 
 Vierra, 59 Cal. 282; Leonard r. Qnin- 198; McCullough v. Talladega Ins. Co. 
 Ian, 121 Mass. 579; Biggins w. Champ- 46 Ala. 376 ; Hungerford National Bank 
 lin, 59 Cal. 113. v. Van Nostrand, 106 Mass. 559; Mud 
 
 8 Coker v. Ferguson, 70 Ala. 284; Creek Draining Co. v. The State, 43 
 
 Hale V. Skinner, 117 Mass. 474. Ind. 236. 
 
 * Nashua Fire Ins. Co. v. Moore, 55 « Dobson i-. Simonton, 86 N. C. 492. 
 
 N. H. 48 ; Tarleton v. Kennedy, 21 La. ' Doyle v. Mi/.ner, 42 Mich. 332 ; 
 
 An. 500 ; White v. Ross, 4 Abb. Ap. Wallace v. Loomis, 97 U. S. 146. 
 Dec. 589; Stoutimore v. Clark, 70 8 Cox v. Rogers, 27 Smith, Pa. 160. 
 
 Misso. 471. And see Scholey v. Rew. 23 Wal. 331. 
 
 114 
 
CHAP. XI.] ESTOPPEL AS A CONTRACT. § 307 
 
 nition of it will not preclude the party from contesting its 
 validity.^ 
 
 § 306. Tenant as to Landlord's Title. — The doctrine is 
 familiar that a tenant, whether the letting is by a sealed in- 
 strument, or by writing not under seal, or by oral words, is 
 estopped 2 to deny the landlord's title.^ In accepting the 
 tenancy, he necessarilj"- acknowledged the landlord's right; 
 and the latter, relying on the acknowledgment, "injuriously 
 altered his position." Hence the estoppel.* But there are, 
 connected with this question, considerable numbers of nice 
 distinctions, to explain a part of which without the rest 
 would not be advisable, and to elucidate all would take 
 us too far from our main subject. Within the principle of 
 this section, — 
 
 § 307. other like Questions. — A common carrier or other 
 bailee of goods cannot ordinarily dispute the title of the 
 person from whom he received them. But here also there 
 are distinctions into which it is not necessary to enter.^ So 
 a bank that has accepted money on deposit cannot generally 
 dispute the depositor's title ; but, as against the true owner, 
 or an attaching creditor, it is otherwise.^ Likewise one to 
 whom a sheriff has confided attached goods for safe keeping 
 is estopped, when sued on his promise to redeliver them, to 
 
 1 Moore v. Johnson, 7 Lea, 580 ; Lee v. Phalen, 12 R. I. 495 ; Gage v. Camp- 
 V. Templeton, 73 Ind. 315; Billings's bell, 131 Mass. 566. 
 
 Appeal, 49 Conn. 456 ; Daiden v. Har- * Ante, § 284, 285, 296. 
 
 rill, 10 Lea, 421. « Story Bailm. § 266, 582; Wallace 
 
 2 Ante, § 285. v. Matthews, 39 Ga. 617; Chicago, &c. 
 8 Knight V. Smythe, 4 M. & S. 347 ; Eailroad v. Shea, 66 111. 471 ; Dodge v. 
 
 Wills V. Stiles, 1 Cow. 575 ; Smith v. Meyer, 61 Cal. 405 ; Nudd v. Montanye, 
 
 Stewart, 6 Johns. 34; Van Alen v. Vos- 38 Wis. 511. Contrary to the teachings 
 
 burgh, 7 Johns. 186 ; Colton v. Harper, of the American cases just cited, it was 
 
 5 Wend. 246 ; Walden v. Bodley, 14 in the English Court of Common Pleas 
 
 Pet. 156, 162 ; Moore v. Beasley, 3 Ohio, held that a carrier, by reason of the com- 
 
 294 ; Ingraham v. Baldwin, 5 Selden, pulsory nature of his employment, is 
 
 45 ; Towne v. Butterfield, 97 Mass. 105; not estopped to dispute the title of him 
 
 Plumer v. Plumer, 10 Fost. N. H. 558 ; from whom he received the goods. 
 
 Newman v. Mackin, 13 Sm. & M. 383 ; Sheridan v. New Quay Co. 4 C. B. N. s. 
 
 Hichardson v. Harvey, 37 Ga. 224; La- 618, 5 Jur. N. s. 248. The like as to a 
 
 taillade v. Santa Barbara Gas Co. 58 warehouseman was adjudged in Ogle v. 
 
 Cal. 4 ; Parker v. Nanson, 12 Neb. Atkinson, 5 Taunt. 759. 
 419; Providence County Saving Bank * Lock Haven Bank v. Mason, 14 
 
 Norris, Pa. 113. 
 
 115 
 
§ 309 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 set up that they were not liable to attachment.^ The books 
 are full of illustrations of this sort of doctrine. 
 
 § 308. Fifthly. Further Views : — 
 
 Limitations of Doctrine. — The practitioner should carefully 
 avoid overlooking any of the before-stated limitations of the 
 general rules. And there may be others, to be found in the 
 books, deserving of consideration. Still, in the jurisprudence 
 of our country, this doctrine of equitable estoppel is advancing 
 rather than receding ; and it is believed that, if the facts of 
 some of the cases to which it was not deemed applicable 
 come afresh before another court in the same or another State, 
 the result will be different. On a single yet vital question, 
 there are a few cases, not old, which embody a most unfortu- 
 nate retrograde, and which, therefore, should not be followed ; 
 thus, — 
 
 § 309. Land — Statute of Frauds. — In these few cases, it 
 is adjudged that the estoppel cannot operate to afiect the 
 title of lands, so as to work a transfer of them ; because the 
 Statute of Frauds requires all contracts or sales by which one 
 is charged in respect of them to be in writing.^ It is admitted 
 that there is abundant authority the other way.^ Indeed, if a 
 judge, when tempted to accede to this doctrine, will lay be- 
 fore him the title estoppel in any digest of reported cases old 
 or new, he will see that he must overturn a large part of them 
 to make the doctrine stand ; in fact, must destroy half of the 
 law of equitable estoppel, and not the less beneficent half, 
 which the juridical wisdom of ages has built up to protect the 
 innocent against the machinations of the wicked and crafty. 
 The better doctrine is explained in a preceding chapter, 
 wherein it is shown that the Statute of Frauds has no relation 
 whatever to contracts created by law,* among which the equi- 
 table estoppel may be included.^ The purpose of this statute 
 
 1 Smith 0. Cudworth, 24 Pick. 196. » Brown v. Wheeler, 17 Conn. 345; 
 
 2 Hayes v. Livingston, 34 Mich. 384 ; Irion v. Mills, 41 Texas, 310 ; Be Her- 
 Kellyw. Hendricks, 57 Ala. 193 (holding ques v. Marti, 85 N. Y. 609 ; Vicks- 
 it to be so in a court of law, but there burg, &c. Eailroad v. Ragsdale, 54 Missis. 
 may be relief in equity) ; Gimon v. Da- 200, 505. 
 
 ris, 36 Ala. 589 ; De Mill v. Moffat, 49 * Ante, § 193. 
 
 Mich. 125 ; Wimmer v. Ficklin, 14 ^ Ante, § 283. 
 
 Bush, 193. 
 
 116 
 
CHAP. XI.] ESTOPPEL AS A CONTRACT. § 311 
 
 is very different. And although our statutes for the record- 
 ing of deeds of real estate might, on a superficial view, seem 
 to be interfered with by this common-law estoppel, a little 
 consideration will present the subject otherwise. Those stat- 
 utes were not meant to enable a party to trace ownership in 
 a lot of land simply by looking into the registry of deeds, with 
 no inquiry in pais. Deaths, domestic and foreign marriages, 
 births, domestic and foreign divorces, and estoppels go on, 
 equally and alike, without the slightest regard to the register's 
 record. And it is no more onerous, or contrary to the spirit 
 of those statutes, while certainly it is not contrary to their 
 letter, to compel a person looking up a title, to inquire into 
 one of these matters in pais than into the others. To con- 
 strue a statute expressly made for the suppression of fraud, 
 as forbidding the courts to employ also for the same purpose 
 one of the most effective and beneficial of all the common- 
 law methods, is even to draggle justice herself in the mud. 
 
 § 310. The Faities. — Ordinarily and by most opinions an 
 estoppel does not take effect against the sovereign or State or 
 United States.^ But a legislative act or grant may estop the 
 State.^ And municipal ^ and other corporations are as much 
 •within the law of estoppel as individuals.* How it is with 
 the privies we have seen.^ 
 
 § 311. The Doctrine of this Chapter restated. 
 
 ■ Estoppel, which we have seen to be a species of contract 
 created by law,® is, together with the contract commonly 
 bearing the latter name, to be ranked among the fictions of 
 
 1 Ante, § 268 ; The State v. Bevers, » Union Depot Co. v. St. Louis, 76 
 
 86 N. C. 588 ; People v. Brown, 67 111. Misso. 393 ; Cook v. Harms, 108 111. 
 
 435; Johnson v. United States, 5 Ma- 151. See Buena Vista v. Iowa Tails, 
 
 son, 425 ; "Wallace v. Maxwell, 10 Ire. &c. Railroad, 46 Iowa, 226. 
 110; Candler ». LuDsford, 4 Dev. & Bat. * Little Rock & Napoleon Railroad 
 
 407. Contra, The State v. Ober, 34 La. v. Little Rock, Mississippi River, &c. 
 
 An. 359. Railroad, 36 Ark. 663 ; Selma, &c. Rail- 
 
 ^ Commonwealth K. Pejepscut Propri- road v. Tipton, 5 Ala. 787; Hale v. 
 
 etors, 10 Mass. 155; Commonwealth Union Mut. Fire Ins. Co. 32 N. H. 29S. 
 V. Andre, 3 Pick. 224 ; Enfield v. Permit, ^ Ante, § 267. 
 5 N. H. 280. * Ante, § 283, 309. 
 
 117 
 
§ 311 IN GENERAL WITH ILLUSTRATIONS. [bOOK I. 
 
 the law. A legal fiction is a thing which the law, for the 
 promotion of justice, for the convenience of litigation, or for 
 any other adequate reason, assumes to be true, contrary to 
 the real fact ; and it will be given such form and be so re- 
 stricted as not to work injustice, or contravene the purpose of 
 its creation.! Therefore the estoppel takes place whenever, 
 without it, the justice or order of the law would fail; and, 
 where the matter pertains to contract, it operates as a species 
 of contract created by the law. But as the measure of the 
 law's justice and order is the collective conscience and under- 
 standing of the judiciary of all times, not those of a single 
 judge, the limits of the doctrine are in the principles which 
 from age to age have guided the judicial decisions. Moreover, 
 as the law creates contracts which the parties have no capa- 
 city to enter into voluntarily ,2 so, by an estoppel, it may ac- 
 complish what they could not do voluntarily, even by deed.^ 
 
 1 Co. Lit. 150 a; Mostyn v. Fabri- Pa. 286; Weisenfeld v. Mispelhorn, 5 
 gas, Cowp. 161, 177; Bennett v. Isaac, W. Va. 46. 
 10 Price, 154 ; Junk v. Canon, 10 Casej, " Ante, § 200-202. 
 
 8 2 Bishop Mar. Women, § 488. 
 
 118 
 
CHAP. XII.] MUTUAL ASSENT. § 315 
 
 CHAPTER Xir. 
 
 THE MUTUAL ASSENT. 
 
 § 312-314. Introduction. 
 315-320. By Mutual Written or Spoken Words. 
 321-329. By Offer accepted in Terms. 
 330-333. By Offer acted upon. 
 
 334. Doctrine of Chapter restated. 
 
 § 312. Actual. — Leaving the consideration of contracts 
 created by law^ and by estoppel,^ we return to the actual 
 ones. And — 
 
 § 313. Doctrine defined. — The doctrine of this chapter is, 
 that, to constitute a contract in fact, the two or more parties 
 must concurrently assent ^ to exactly the same thing at the 
 same instant of time. So that, if one consents to a thing, and 
 another to a thing in any degree different, or if the former 
 consents at one time and the latter at another, by reason of 
 which their wills do not at any instant completely coincide, 
 they do not enter into a contract.* . 
 
 § 814. How Chapter divided. — The different methods of 
 bringing the minds into concurrence indicate the division 
 of the subject; namely, I. By Mutual Written or Spoken 
 Words ; II. By Offer accepted in Terms ; III. By Offer 
 acted upon. 
 
 I. By Mutual Written or Spohen Words. 
 
 § 315. Writing. — If the thing to be done is set down in 
 writing, the parties by signing and delivering it mutually con- 
 sent to the same thing at the same instant. But, — 
 
 1 Ante, § 181 et seq. 472 ; Cooke v. Oxley, 3 T. R. 653 ; Jor- 
 
 2 Ante, § 264 et seq. dan v. Norton, 4 M. & W. 155 ; Allis v. 
 » Hedge'sAppeal, 13Smith, Pa. 273; Read, 45 N. T. 142, 149; Hazard v. 
 
 Gibbs V. Linabury, 22 Mich. 479. New England Marine Ins. Co. 1 Sum- 
 
 * Dickinson v. Dodds, 2 Ch. D. 463, ner, 218. 
 
 119 
 
§ 318 IN GENBEAL WITH ILLU8TEATI0NS. [BOOK I. 
 
 § 316. Meaning XTncertain. — Should the written terms, 
 though intended for a contract, be so incomplete, indistinct, 
 or equivocal as, after applying to them all the helps which the 
 rules of interpretation afford or permit, to leave it uncertain 
 what it was to which the parties mutually consented, the con- 
 sequence is the same as where there is no consent ; there 
 is no contract.^ The illustrations of this are innumerable. 
 Thus, if one stipulates to take of another a house on its being 
 "put into thorough repair, the drawing-rooms to be hand- 
 somely decorated according to the present style, paint re- 
 quired both inside and out, although perhaps for some parts 
 one coat might be sufficient," it is impossible to say, with 
 such precision as will enable a court to enforce the stipulation, 
 how much or what either party meant ; so, there being no 
 evidence of the coincidence of their wills, there is no con- 
 tract.2 Still, — 
 
 § 317. Estopped to Deny. — The words of the parties 
 are the proper evidence of the mutual condition of their 
 minds ; and by them, irrespective of any secret purpose of 
 one party, both will be bound.^ Though one should intend 
 a mere imposition or fraud on the other who acts in good 
 faith, he will be estopped to set up such intent, so that their 
 mutual stipulations will constitute a valid contract* "al- 
 though," as it has been expressed, "he intended only to 
 prevaricate." ° 
 
 § 318. All or None. — " There cannot be a contract with- 
 out two parties." ^ And, though the consideration should be 
 
 I Ante, § 117 ; post, § 390; Culver say v. Lynch, 2 Sch. & Lef. 1, 7; Ex 
 
 V. Culver, 10 Vroom, 574; Smith v. parte Tootell, 4 Ves. 372. 
 Crawford, 81 HI. 296 ; Pepper v. Harris, 2 Taylor v. Portington, 7 De G. M. 
 
 73 N. C. 365 ; Breaid v. Hunger, 88 & G. 328, 1 Jur. n. s. 1057. 
 N. C. 297; Thompson v. Gordon, 72 « White v. Smith, 37 Mich. 291; 
 
 Ala. 455; Barnett v. Nichols, 56 Missis. Brunhild v. Freeman, 77 N. C. 128. 
 622 ; Crooks v. Whitford, 47 Mich. 283 ; * Cornish o. Abington, 4 H. & N. 
 
 Moulton V. Egery, 75 Maine, 485 ; Dun- 549 ; Smith v. Hughes, Law Rep. 6 
 
 kart V. Eineheart, 89 N. C. 354 ; Gigos Q. B. 597, 607. 
 
 V. Cochran, 54 Ind. 593 ; Krouskop v. ^ Todd v. Weber, 95 N. Y. 181, 191. 
 
 Shontz, 51 Wis. 204 ; Hollen v. Davis, « Sir James Mansfield, C. J. in 
 
 59 Iowa, 444 ; Palmer v. Albee, 50 Iowa, Champion v. Plummer, 1 N. B. 252, 
 
 429 ; Brown v. Caldwell, 23 W. Va. 187 ; 254. 
 Sheedy v. Roach, 124 Mass. 472 ; Lind- 
 
 120 
 
CHAP. XII.] MUTUAL ASSENT. § 321 
 
 executed on one side, so that nothing remains to be done by 
 one of them, the rule is necessarily universal that both must 
 be bound or neither will be.^ 
 
 § 319. Informal and Preliminary. — If parties agree on terms, 
 however precise, " subject to the preparation and approval of 
 a formal contract," the concurrence of their wills is suspended ; 
 and, where nothing further is done, there is no contract.^ Yet 
 the mere fact that the reduction of an informal agreement, 
 oral or written, to a formal written one was contemplated or 
 stipulated for, does not prevent the former from taking im- 
 mediate effect ; the question whether it does or not depends 
 on what the parties intended.^ Of course, in either case, if 
 the contemplated formal contract is made, it alone will govern 
 the parties.* 
 
 § 320. other Questions — properly within this sub- title are 
 reserved for the next two chapters. 
 
 II. By Offer accepted in Terms. 
 
 § 321. Not accepted. — A mere offer or promise, not ac- 
 cepted, involves no concurrence of wills, and it can never 
 constitute a contract.^ But, — 
 
 1 Payne v. Cave, 3 T. R. 148, 149; Dering, 1 Keen, 729, 1 Jur. 211, 427; 
 Atkyns v. Horde, 1 Bur. 60, 120, 123 ; May v. Thomson, 20 Ch. D. 705 ; Bonne- 
 McDonald V. Bewick, 51 Mich. 79, 80; well v. Jenkins, 8 Ch. D. 70, 74; Mon- 
 Black V. Woodrow, 39 Md. 194. See tague u. Weil, 30 La. An. 50 ; Fredericks 
 ante, § 77, 78. Deed-poll. — A deed- v. Fasnacht, 30 La. An. 117; Avendano 
 poll might seem at the first impression v. Arthur, 30 La. An. 316; McDonald 
 to be an exception to this rule, but it ». Bewick, 51 Mich. 79. 
 
 is not. Without acceptance by the * Sinclair v. Stevenson, 2 Bing. 514, 
 
 grantee, — which, however, the law com- 1 Cw. & P. 582 ; Farquharson v. Bars- 
 
 monly presumes, — it passes nothing; tow, 4 Bligh, N. s. 560. 
 
 and so, as the grantee is not bound, ^ Bower v. Blessing, 8 S. & R. 243 ; 
 
 neither is the grantor. And see Madan Bieber v. Beck, 6 Barr, 198 ; McKinley 
 
 V. Sherard, 73 N. T. 329. v. Watkins, 13 111. 140; Esmay v. Gor- 
 
 2 Winn V. Bull, 7 Ch. D. 29. See ton, 18 111. 483; Brown i>. Rice, 29 
 Hussey u. Home-Payne, 4 Ap. Cas. 311. Misso. 322; Tuttle v. Love, 7 Johns. 
 
 8 Ridgway v. Wharton, 6 H. L. Cas. 470; Deraoss v. Noble, 6 Iowa, 530; 
 
 238, 4 Jur. N. 8. 173; Methudy v. Ross, Bruce v. Pearson, 3 Johns. 534; Corn- 
 
 10 Misso. Ap. 101 ; Dietz v. Parish, 53 ing v. Colt, 5 Wend. 253 ; Peru v. 
 
 How. Pr. 217, 222; Wilson v. Lee's French, 55 111. 317; Quick w. Wheeler, 
 
 Summit, 63 Misso. 137; Bourne v. 78 N. Y. 300; Taylor v. Shouse, 73 
 
 Shanleieh, 9 Misso. Ap. 64 ; Thomas v. Misso. 361 ; Madan f. Sherard, 73 N. Y. 
 
 121 
 
§ 325 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 § 322. Accepted. — If one makes to another an offer, 
 verbal or written, direct, by letter, or by telegram, of a sort 
 implying nothing to be done except to assent or decline, abd 
 the latter accepts it, adding no qualification, there is thus con- 
 stituted a mutual consent to the same thing at the same time ; 
 in other words, a contract.^ And the question of the suffi- 
 ciency of the transaction to work this result is of law for the 
 court.2 On the other hand, — 
 
 § 323. Imperfect Acceptance. — Though there is an ac- 
 ceptance, if it is not to the exact thing offered, or if it 
 is accompanied by any conditions or reservations however 
 slight, in time or otherwise, no contract is made."^ It is 
 so, for example, where new terms are introduced ; they 
 constitute an offer on the other side, and leave the question 
 open.* 
 
 § 324. Offer Incomplete. — If the offer is in language not 
 sufficiently certain ^ for the stipulations to be enforced, or if 
 what is written is to be construed as a mere opening of nego- 
 tiations, no acceptance can transmute it into a contract.^ 
 
 § 825. Offer withdrawn. — Since an offer is not a contract, 
 the party making it may withdraw it at any time before ac- 
 ceptance.^ Even though it is in writing, and by its terms is 
 to stand open for a specified period, the result is the same. 
 
 329 ; Harlow v. Curtis, 121 Mass. 320; 225; Carri:. Duval, 14 Pet. 77 ; Moxley 
 Smith V. Weaver, 90 111. 392. v. Moxley, 2 Met. Ky. 309 ; Smith v. 
 
 1 Wells V. Milwaukee and St. Paul Surman, 9 B. & C. 561. 
 
 Railway, 30 Wis. 605 ; Abbott v. Shep- * Hussey r. Horne-Payne, 8 Ch. D. 
 ard, 48 N. H. 14; Hart v. Bray, 50 670, 678, 4 Ap. Cas. 311; Derrick v. 
 Ala. 446 ; Calhoun v. Atchison, 4 Bush, Monette, 73 Ala. 75 ; Baker v. Holt, 56 
 261; Duble v. Batts, 38 Texas, 312; Wis. 100; Holland i-. Eyre, 2 Sim. & S. 
 Smith V. Colby, 136 Mass. 562; Che- 194; Routledge u. Grant, 4 Bing. 6.53, 3 
 ney v. Eastern Transp. Line, 59 Md. Car. & P. 267 ; Falls Wire Manuf. Co. 
 557 ; Highland v. Rhoades, 26 Ohio v. Broderick, 12 Misso. Ap. 378 ; Ash- 
 State, 411; Johnson v. Talley, 10 Lea, croft v. Butterworth, 136 Mass. 511; 
 248. Stagg V. Compton, 81 Ind. 171. 
 
 2 Robinson Machine Works u.Chand- * Ante, § 316. 
 
 ler, 56 Ind. 575. « Ahearn v. Ayres, 38 Mich. 692; 
 
 8 Rommel K.Wingate, 103 Mass. 327; Moulton v. Kershaw, 59 Wis. 316; 
 
 Barrow v. Ker, 10 La. An. 120 ; Bel- Preston v. Luck, 27 Ch. D. 497 ; Chiodi 
 
 fast, &c. Railway v. Unity, 62 Maine, v. Waters, 1 Stark. 335% 
 
 148 ; Crossley v. Maycock, Law Rep. 18 ' Cooke v. Oxiey, 3 T. R. 653 ; Wei- 
 
 Eq. 180; Bruner v. Wheaton, 46 Misso. den v. Woodruff, 38 Mich. 130; Burton 
 
 363; Eliason v. Henshaw, 4 Wheat, v. Shotwell, 13 Bush, 271; Tucker ». 
 122 
 
CHAP. XII.] MUTUAL ASSENT. § 328 
 
 With no money consideration,^ and no corresponding promise 
 from the person to whom it is made, the promise not to 
 withdraw it has no binding force.^ If a consideration for 
 the undertaking to leave the offer open is given and accepted, 
 this constitutes of itself a contract, and the offer cannot be 
 withdrawn. 
 
 § 326. Methods of Withdrawal. — The ordinary method is 
 by notice,^ but it may be done otherwise. Thus, disposing of 
 a thing offered for sale is a withdrawal of the offer, nor in this 
 case need the party be expressly notified. It is enough that 
 he knows the fact.* If the offer was made by mail, the mere 
 posting of a counter letter, which does not arrive until after 
 the former letter comes to hand and is answered by accept- 
 ance, will not suffice.^ And it appears to be now settled that, 
 to effect a withdrawal, there must be actual knowledge or 
 notice received.^ Moreover, — 
 
 § 327. Lapse of Time — operates as a withdrawal. In the 
 absence of time expressed or presumed from usage,'' the offer 
 is to be construed as open for a reasonable time ; then, when 
 it has elapsed, an acceptance will be too late. What is a 
 reasonable time will, it appears, depend on the particular case 
 and its circumstances.^ 
 
 § 328. By Letter or Telegram. — One who makes an offer 
 by mail or by telegraph constitutes thereby the post-office or 
 telegraph company his agent for its transmission.^ Therefore, 
 if it is not delivered, it amounts to nothing ; or, if the tele- 
 gram is altered in the transmission, he is bound by it as 
 
 Lawrence, 56 Vt. 467 ; Quick v. Wheeler, « Stevenson v. McLean, 5 Q. B. D. 
 
 78 N. T. 300, 304. 346, 351, 352 ; Tayloe v. Merchants Fire 
 
 1 Cherry v. Smith, 3 Humph. 19. Ins. Co. 9 How. U. S. 390; Leake Con. 
 
 2 Eoutledge v. Grant, 3 Car. & P. 43; Pollock Con. 10. 
 
 267, 4 Bing. 653 ; Dickinson v. Dodds, ' Maclay v. Harvey, 90 III. 525. 
 
 2 Ch. D. 463 ; Cheney v. Cook, 7 Wis. « Loring v. Boston, 7 Met. 409; 
 
 413 ; School Directors v. Trefethren, 10 Martin v. Black, 21 Ala. 721 ; Chicago 
 
 Bradw. 127. and Great Eastern Railway v. Dane, 43 
 
 ' Stevenson v. McLean, 5 Q. B. D. N. Y. 240 ; Mactier v. Frith, 6 Wend. 
 
 346. 103 ; McCurdy v. Rogers, 21 Wis. 197 ; 
 
 * Dickinson v. Dodds, 2 Ch. D. 463. Stone v. Harmon, 31 Minn. 512; Dun- 
 
 6 Byrne v. Van Tienhoven, 5 C.P. D. lop v. Higgins, 1 H. L. Cas. 381, 12 Jur. 
 
 344. And see Stevenson v. McLean, 295 ; Judd v. Day, 50 Iowa, 247. 
 
 snpra ' ° Leake Con. 36, 37. 
 
 123 
 
329 
 
 IN GENERAL WITH ILLUSTRATIONS. 
 
 [book I. 
 
 transmitted.^ And if the receiver accepts the offer, the con- 
 tract becomes complete on the delivery of the answer of accept- 
 ance at the post or telegraph office, nor is an actual receiving 
 of it essential.2 This result may be varied by the special 
 terms of the offer; as, "if I do not hear from you," &g., 
 making the actual receipt of it indispensable.* 
 
 § 329. Overt Act of Acceptance. — A mere determination 
 
 1 Saveland v. Green, 40 Wis. 431. 
 
 2 Tayloe v. Merchants Fire Ins. Co. 
 9 How. U. S. 390 ; Trevor v. Wood, 36 
 N. Y. 307 ; Minnesota Oil Co. v. Collier 
 Lead Co. 4 Dil. 431 ; Potter v. Sanders, 
 6 Hare, 1 ; Dunlop v. Higgins, 1 H. L. 
 Cas. 381, 12 Jur. 295; Duncan v. Top- 
 ham, 8 C. B. 225 ; Washburn v. Fletcher, 
 42 Wis. 152 ; Adams v. Lindsell, 1 B. & 
 Aid. 681 ; Byrne v. Van Tienhoven, 
 5 C. P. D. 344. Compare with post, 
 §354. 
 
 2 Lewis V. Browning, 130 Mass. 173. 
 From this case, and from McCulloch v. 
 Fiaglelns. Co. 1 Pick. 278, therein cited, it 
 appears that in Massachusetts the receipt 
 of the answer is always deemed necessary. 
 In Adams v. Lindsell, supra, the Eng- 
 lish court stated the reason for the com- 
 mon doctrine, thus : " If that [namely, 
 the doctrine requiring the receipt of the 
 answer] were so, no contract could ever 
 be completed by the post. For if the 
 defendants were not bound by their offer 
 when accepted by the plaintiffs till the 
 answer was received, then the plaintiffs 
 ought not to be bound till after they had 
 received the notification that the defend- 
 ants had received their answer and as- 
 sented to it. And so it might go on ad 
 infinitum. The defendants must be con- 
 sidered in law as making, during every 
 instant of the time their letter was trav- 
 elling, the same identical offer to the 
 plaintiffs ; and then the contract is com- 
 pleted by the acceptance of it by the 
 latter." p. 683. Looking a little fur- 
 ther into the reason, we have the fol- 
 lowing. When the person making the 
 offer puts his letter into the post-office, 
 he constitutes thereby, as said in the 
 text, the post-office his agent for its 
 
 124 
 
 transmission. This proposition is not 
 only sustained by the decisions ; but, in 
 the nature of things, any power which a 
 man employs is his agent. To say that 
 he employs the post-office, and to say 
 that the post-office is his agent, are sim- 
 ply two forms of expressing the same 
 idea. Equally, also, in asking, whether 
 in terms or by implication, an answer by 
 post, he makes the post-office his agent 
 for bringing it to him. Ex parte Cote, 
 Law Eep. 9 Ch. Ap. 27, 32. It is the 
 same as though his written offer was 
 sent by his clerk, and the request put 
 into it to transmit the reply by the 
 bearer. No one would doubt that, in 
 this case, the delivery of the reply to his 
 agent the clerk was in law a delivery to 
 the principal. The fact that, in either 
 case, the agent is forbidden to break the 
 seal, makes no difference. Again, the 
 contract consists of the two letters, con- 
 stituting the offer and its acceptance. 
 And the analogies derivable from the 
 rules governing the signing and delivery 
 of other written contracts conclusively 
 show, that this one is complete when it 
 is thus signed by both parties, and all of 
 it in this finished form has by mutual 
 consent been in the :hands of one of 
 them. A contract, not' in duplicate, 
 cannot be in the hands of both parties 
 at the same time. Hence, in this case, 
 the fact that, after the execution, a por- 
 tion of this single contract is in the pos- 
 session of one party and the remainder 
 is on its journey to the other, can make 
 no difference ; the execution has, to re- 
 peat, already fully taken place. If the 
 part which is on its travels is lost the 
 consequence is simply the same as where 
 any other executed writing is lost. 
 
CHAP. XII.] MUTUAL ASSENT. § 333 
 
 of the will to accept an offer does not constitute an accept- 
 ance ; there must be words, written or spoken, or some other 
 overt act.l <- The doing of a thing pprsitant to an offer may be 
 both an acceptance and performance.^ 
 
 III. By Offer acted upon. 
 
 § 330. Doctrine defined. — If one makes an offer to another, 
 or to all persons in general, and does not withdraw it while 
 the other person in the former case, or any one in the latter, 
 goes forward and does the thing, such performance carries 
 with it an acceptance of the offer ; and the person who made 
 it must pay or do what lie proposed.* A common case is 
 that of — 
 
 § 331. Reward for Arrest, &c. — Where a private person, 
 or an official one acting under competent authority,* publicly 
 offers a given sum as a reward to any person who will make 
 a particular arrest, or give information leading to it, or do 
 any other like thing for the promotion of public justice or for 
 any other lawful purpose, and one comes forward and does 
 the act, the former or his principal may be compelled to pay. 
 It is a contract entered into and executed by the act itself.® 
 But — 
 
 § 332. "Withdrawn. — Such offer, like any other, may be 
 withdrawn before performance. If both it and the withdrawal 
 Avere by public advertisement, one to be cut off from the 
 reward need not have received actual notice.^ 
 
 § 333. Goods Ordered. — An illustration, so familiar as 
 scarcely to attract notice, is that of goods ordered of a trader 
 
 1 White V. Corlies, 46 N. Y. 467; Davis u. Munson, 43 Vt. 676 ; Thatcher 
 Trevor v. Woodi 36 N...Y. 307 ; Hough- v. England, 3 C. B. 254 ; Loring i; Bos- 
 wout V. Boisaubin's C. B. Green, 315. ton, 7 Met. 409, 411 ; Tarner v. Walker, 
 
 2 Post, § 330, 331 ; Briisle v. Thomas, Law Rep. 2 Q. B. 301 ; England v. Da- 
 7 La. An. 349 ; Woodworth v. Wilson, vidson, 11 A. & E. 856 ; Shuey v. United 
 11 La. An. 402;' Street d. Chapman, 29 States, 92 U. S. 73. See Babcock v. 
 Ind. 142. Kaymond, 2 Hilton, 61 ; Hayden v. Sou- 
 
 8 Eeif w. Paige, .55 Wis. 496 ; Springer ger, 56 Ind. 42. 
 V. Cooper, 11 Bradw. 267. « Shuey v. United States, 92 U. S. 7.3. 
 
 * Hungerford v. Moore, 65 Ala. 232; As to whether there need be any publi- 
 Hngill V. Kinney, 9 Oregon, 250. cation, see Auditor v. Ballard, 9 Bush, 
 
 s Janvrin w. Exeter, 48 N. H. 83 ; 572 ; Eagle v. Smith, 4 Houst. Del. 293. 
 
 125 
 
§ 334 IN GENEEAL WITH ILLUSTRATIONS. [BOOK I. 
 
 and by him supplied. A contract is thereby formed, under 
 which the person receiving them is compellable to pay. Even 
 though the goods did not satisfy the terms of the order, if 
 they are accepted and used the same result follows.^ 
 
 § 384. The Doctrine of this Chapter restated. 
 
 The substance of this chapter is embraced in the simple 
 proposition, that only when the wills of the parties, as shown 
 on due outward manifestations, so unite in the same thing as 
 exactly to coincide, does the law recognize a contract. In 
 other chapters, the other elements of contract which must 
 combine with this one, and the formalities required to attend 
 upon and evidence this union of wills, are explained. 
 
 1 Dennis v. Stonghton, 55 Vt. 371 ; Downs v. Marsh, 29 Conn. 409 ; Bruce 
 V. Pearson, 3 Johns. 534. 
 
 126 
 
CHAP. Xm.] FOEMALITIES AT MAKING. § 340 
 
 CHAPTER XIII. 
 
 FORMALITIES AT THE MAKING OP "WRITTEN CONTRACTS. 
 
 § 335-339. Introdaction. 
 
 340,341. The Writing. 
 
 342-348. Signing. 
 
 349-361. Deliyery. 
 
 - 362, 363. Incidental Questions. 
 
 364. Doctrine of Chapter restated. 
 
 § 335. Oral. — "Where the contract is oral, it, of course, 
 will not necessarily be attended by any formalities ; and the 
 proof of it will be guided by rules of evidence, not for discus- 
 sion here. 
 
 § 336. Under Seal. — We have already considered of the 
 seal,i and whatever else is special to this form of contract.^ 
 But what is common to it and other written contracts, to- 
 gether with some comparisons between the two as to their 
 formalities, is within the scope of this chapter. Something of 
 its interpretation will appear in the next chapter. 
 
 §337. By Agents — Pilling Blanks. — These are for con- 
 sideration in other connections.^ 
 
 § 338. Elsewhere. — A few questions remain which, though 
 proper for this chapter, are reserved for other places equally 
 or more appropriate. 
 
 § 339. How Chapter divided. — We shall consider, I. The 
 Writing ; II. The Signing ; III. The Delivery ; IV. Inci- 
 dental Questions. 
 
 I. The Writing. 
 
 § 340. On what Material. — We have seen,* that the law is 
 particular to secure durability in the material on which are 
 
 1 Ante, §111. 8 Post, §1165-1176. 
 
 2 Ante, § 103-139. < Ante, § 110. 
 
 127 
 
§ 343 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 written sealed instruments. But since written contracts not 
 under seal rank simply as parol ones,^ and since the writing 
 may, as we are about to see, be even in pencil, there is no 
 reason to require the material to be paper or parchment; 
 wood, for example, ought to sufl&ce. But on this question 
 the author is not able to refer to authorities. 
 
 § 341. Consists of what. — In general, not saying that 
 there may not be exceptions, the use of pen and ink, which 
 is the ordinary method, is not indispensable to the production 
 of what the law will deem a writing.^ A lead-pencil will 
 suffice ^ even for the party's signature.* And printed matter, 
 when employed as a writing, is equally good as if done with 
 a pen.^ 
 
 II. The Signing. 
 
 § 342. Whether Necessary. — The common and appropriate 
 method of attesting a writing is to sign it. But, in general, 
 a mere oral consent to what has been written out for a con- 
 tract will, at the common law, suffice.® There are, for exam- 
 ple, numerous unsigned writings which, by reason of their 
 being of legal validity, may be the subjects of forgery .''' And 
 evidently among them are contracts.^ A familiar illustration 
 is where one of the parties signs a writing, and another orally 
 accepts it ; both are bound.^ But under various statutes, a 
 leading one of which is the Statute of Frauds, the contract to 
 have effect must be signed by the party to be charged. 
 
 § 343. The Signature — consists properly of the name of 
 
 ' Ante, § 26, 158. Dutch v. Mead, 36 N. Y. Superior, 427 ; 
 
 2 1 Bishop Crim. Proced. § 337 ; 2 Leake Con. 184. See Tucker v. Bruce, 
 
 Bishop Crim. Law, § 52.5-527. 121 Mass. 400. 
 
 s Geary v. Physic, 7 D. & R. 653, 5 '2 Bishop Crim. Law, § 529 et seq. 
 
 B. & C. 234 ; Reed v. Roark, 14 Texas, B And see Selby v. Selby, 3 Mcriv. 2 ; 
 
 329 ; McDowel v. Chambers, 1 Strob. Marshall v. Hann, 2 Harrison, 425 ; 
 
 Eq. 347; Lucas w. James, 7 Hare, 410, Grove v. Hodges, 5 Smith, Pa. 504; 
 
 419 ; Myers v. Vanderbelt, 3 Norris, Pa. Paige v. Fullerton Woolen Co. 27 Vt. 
 
 510. 485; Steams v. Haven, 16 Vt. 87; 
 
 * Geary v. Physic, supra ; Merritt v. Pooley v. Driver, 5 Ch. D. 458, 468, 
 
 Clason, 12 Johns. 102. 469. 
 
 6 2 Bishop Crim. Law, nt sup. ' Brandon Manuf. Co. v. Morse, 48 
 
 8 Farmer v. Gregory, 78 Ky. 475 ; Vt. 322 ; Reuss v. Picksley, Law Rep. 
 
 Bacon v. Daniels, 37 Ohio State, 279 ; 1 Ex. 342, 352. 
 
 128 
 
CHAP. XIII.] FORMALITIES AT MAKING. § 345 
 
 the party duly attached to the writing. But the initials only, 
 and especially the initials of the Christian name with the full 
 surname, will suffice,^ and so will the printed name, when 
 employed as a signature.^ Or if a person, to convey property, 
 executes a deed of it in a name not his own, he is bound by 
 such name, and the conveyance is effectual.^ Indeed anything 
 which a man writes for his name is, under the common-law 
 rules, a good signature ; thus, the figures " 1. 2. 8.," written 
 on a bill of exchange, were held to constitute the writer's 
 valid indorsement of the bill, being so intended.* On this 
 principle, the Christian name alone,^ or the English transla- 
 tion of a French name, as " Seam " for " Couture," ^ will 
 suffice. This doctrine may require some qualification under 
 a statute providing for a signature by the " name " of the 
 party ; when, doubtless, it must be some word or words by 
 which he is commonly known.'' 
 
 § 344. Place of Signature. — The usual and proper place 
 for the signature is at the foot of the matter which it attests. 
 But, in strict law, it will suffice if, with the intent to constitute 
 a signing, it is inserted in the writing at any other place.^ 
 
 § 345. Manner of Signing. — One signing a contract com- 
 monly writes his name with his own hand. Practically he 
 ought always to do so if able. Still, if another writes it for 
 him in his presence and at his request,^ o^ if he holds the top 
 of the pen while the other writes it,^" or makes his mark to 
 
 1 Palmer v. Stephens, 1 Denio, 471 ; see Gardner v. Lucas, 3 Ap. Cas. 
 Sanborn v. Flagler, 9 Allen, 474, 478 ; 582. 
 
 The State v. Beck, 81 Ind. 500. 8 Knight v. Crockford, 1 Esp. 190; 
 
 2 2 Bishop Crim. Law, § 527 ; Cora- Lemayne v. Stanley, 3 Lev. 1 ; Saun- 
 monwealth v. Ray, 3 Gray, 441 ; Schnei- derson v. Jackson, 2 B. & P. 238 ; Cod- 
 der V. Norris, 2 M. & S. 286. dington v. Goddard, 16 Gray, 436, 444 ; 
 
 ' David V. Williamsburgh City Fire Saunders v. Hackney, 10 Lea, 194. 
 Ins. Co. 83 N. Y. 265 ; Janes v. Whit- ^ Jansen v. McCahill, 22 Cal. 563 ; 
 
 bread, 11 C. B. 406 ; Devendorf w. West Frost v. Deering, 21 Maine, 156 ; Pierce 
 
 "Virginia Oil, &c. Co. 17 W. "Va. 135; v. Hakes, 11 Harris, Pa. 231; Rex v. 
 
 Elliot V. Davis, 2 B. & P. 338. And Longnor, 1 Nev. & M. 576; Bird v. 
 
 see Nixon v. Cobleigh, 52 111. 387. Decker, 64 Maine, 550 ; Nye v. Lowry, 
 
 * Brown v. Butchers and Drovers 82 Ind. 316, 320; McMurtry v. Brown, 
 
 Bank, 6 Hill, N. Y. 443. 6 Neb. 368 ; Croy v. Busenbark, 72 
 
 « Zann v. Haller, 71 Ind 136. Ind. 48. 
 
 ' Augur V. Couture, 68 Maine, 427. w Helshaw v. Langley, 11 Law J. N.s. 
 
 7 Reg. V. Avery, 18 Q. B. 576. And Ch. 17. 
 
 9 129 
 
§ 346 IN GENERAL WITH ILLTTSTEATIONS. [BOOK I. 
 
 his name which the other has written ; ^ or, if he acknowl- 
 edges the signature, however made, — whether honestly by a 
 third person, or by forgery, or by the other party, — to be his 
 own,2 this is sufficient, even in specialties. But one's ac* 
 knowledgment that he has signed a written instrument will 
 not, it appears, constitute his signature, if there is a mere 
 blank where it should stand.^ Impressing on the paper a 
 stamp, whereon is engraved the ordinary signature, may 
 suffice.* 
 
 § 346. Reading at Signing. — One is never required to, and 
 never should, execute any written instrument without first 
 becoming fully acquainted with its contents.^ He should 
 read it if able ; or, if illiterate,^ have it read to him. And', 
 when he has signed a written contract, the law prima facie 
 presumes that he discharged this duty;'' therefore, whether in 
 fact he did it, or chose to waive the privilege, his signature 
 binds him.8 On the other hand, if the instrument is fraudu- 
 lently read to him in terms different from its real ones ; or if, 
 not being read, its contents are fraudulently misrepresented, 
 and he cannot himself read, or is otherwise without laches ; 
 he will not be holden by the signing.^ If the thing signed is 
 
 > Baker v. Dening, 8 A. & E. 94 ; ' Smyth v. Munroe, 84 N. Y. 354, 
 
 Zimmerman v. Sale, 3 Rich. 76 ; Foye v. 361 ; Campau v. Lafferty, 50 Mich. 114 ; 
 
 Patch, 132 Mass. 105 ; Brown v. Mc- Foye v. Patch, 132 Mass. 105. 
 
 Clanahan, 9 Baxter, 347. ' Thoroughgood's Case, 2 Co. 9o; 
 
 2 Powell V. Blackett, 1 Esp. 97 ; Pe- Chapman o. Rose, 56 N. Y. 137 ; Rex v. 
 
 qnawkett Bridge v. Mathes, 7 N. H. 230 ; Longnor, I Nev. & M. 576 ; School 
 
 Mclntyre K. Park, 11 Gray, 102; Rhode Committee v. Kesler, 67 N. C. 443; 
 
 V. Lonthain, 8 Blackf. 413; Hill v. Wheeler & Wilson Manuf. Co. ». Long, 
 
 Scales, 7 Yerg. 410; Speckels v. Sax, 1 8 Bradw. 463; McCormack v. Molburg, 
 
 E. T). Smith, 253 ; Hawkins v. Chace, 43 Iowa, 561 ; Susqiiehanna Mut. Fire 
 
 19 Pick. 502; Wellington v. Jackson, Ins. Co. w. Swank, 6 Out. Pa. 17; Wei- 
 
 121 Mass. 157, 159; Sisters of Charity ler's Appeal, supra; Frits r. Frits, 32 
 
 V. Kelly, 67 N. Y. 409 ; Haynes v. Ark. 327 ; Maine Mut., &c. Ins. Co. v. 
 
 Haynes, 33 Ohio State, 598 ; Nye v. Hodgkins, 66 Maine, 109. 
 
 Lowry, 82 Ind. 316, 320; Clough » lb. ; Sims u. Bice, 67 111. 88 ; Suf- 
 
 u. Clough, 73 Maine, 487. fern v. Butler, 3 C. E. Green, 220; 
 
 » Jones V. Gurlie, 61 Missis. 423. Green v. North Buffalo, 6 Smith, Pa. 
 
 * Bennett v. Brumfitt, Law Rep. 8 110; Palmer v. Largent, 5 Neb. 223; 
 
 C. P. 28. Cole V. Williams, 12 Neh. 440; Tram- 
 
 6 Weller's Appeal, 7 Out. Pa. 594 ; bly v. Ricard, 130 Mass. 259, 261 ; First 
 
 Hazard v. Griswold, 21 Fed. Rep. National Bank v. Lierman, 5 Neb. 247 ; 
 
 178. Griffith V. Short, 14 Neb. 259; Consols 
 
 6 Manser's Case, 2 Co. 3 a. Ins. Assoc, v. Newall, 3 Post. & F. 130; 
 
 130 
 
CHAP. XIII.] FORMALITIES AT, MAKING. § 348 
 
 commercial paper, and it pa,sses into the hands of an innocent 
 third person, or is a mortgage on the security of which an in- 
 nocent third person lends his money, or is any other instru- 
 ment where the question arises simply between the defrauded 
 signer and a defrauded third person, it does not seem quite 
 clear how far this fact will increase the responsibility of the 
 signer. But evidently he will sometimes be holden in these 
 circumstances when he would not be in a litigation with the 
 person practising the fraud.^ On this class of questions, it 
 has been well observed that " the authorities are conflicting." ^ 
 In reason, to some of these. cases the common-law doctrine 
 must be applicable, that, as between two innocent persons, 
 the law casts its protection over the one who is the mores 
 absolutely vigilant and without carelessness. If the writing 
 was correctly read to a party having the legal capacity to 
 contract, he cannot avoid the effect of his signature by 
 showing his own misapprehension of its meaning.* 
 
 § 347, Intent in the Signing. — The signing must be with 
 intent to execute the instrument as a contract, else it will not 
 bind the parties.* Hence, — 
 
 § 348. AU the Signatures. — If, by parol stipulation,^ or, 
 a fortiori, if by the writing itself,^ the contract was not to be 
 deemed complete until other signatures should be added, it, 
 without such addition, will not bind those who have signed 
 it.'' But, if nothing of this appears, the parties signing will 
 
 Hummel v. Tyner, 70 Ind. 84; Webb v. Whitford v. Laidler, 94 N. Y. 145, 151, 
 
 Corbin, 78 lud. 403. See post, § 645, 152 ; Latch v. Wedlake, 11 A. & E. 
 
 655. 959. 
 
 1 Roach V. Karr, 18 Kan. 529 ; Kel- « Waggeman v, Bracken, 52 111. 468; 
 
 logg V. Curtis, 65 Maine, 59 ; Williams Sharp v. United States, 4 Watts, 21 
 
 B.. StoU, 79 Ind. 80 ; Whitaker v. Miller, (which compare with People v. Johr, 22 
 
 83 111. 381. See post, § 646-649, 655. Mich. 461) ; Beau v. Parker, 17 Mass. 
 
 3 Kellogg !). Curtis, supra. 591, 605; Barber v. Burrows, 51 Cal. 
 
 s Jackson v. Lemle, 35 La, An. 855. 404, 473; Chase v. Bailey, 49 Vt. 71 ; 
 
 * Grierson v. Mason, 60 N. Y. 394; Woodin v. Durfee, 46 Mich. 424. 
 Armstrong v. McGhee, Addison, 261; ' Unimportant Omission. — Where 
 
 Morrill v. Tehama Consolidated Mill, one signed a composition deed with cred- 
 
 &c. Co. 10 Nev. 125 ; Ramaley v. Le- itors under the stipulation that it should 
 
 land, 6 Rob. N. Y. 358. not bind him unless all signed, the failure 
 
 'Butler I'. Smith, 35 Missis. 457; to execute it by a single creditor, whose ^V 
 
 Keener v. Crago, 32 Smith, Pa. 166; claim was only two and a half dollars. 
 
 Laird v. Campbell, 4 Out. Pa. 159; was held not to avoid the deed ; the con- 
 
 131 
 
§ i350 IN GENERAL WITH ILLUSTRATIONS, [BOOK I. 
 
 be holden, though even on the face of it the signatures of 
 others were contemplated by the draughtsman.^ To an ex- 
 tent not quite clear on the authorities, for they are discordant, 
 a doctrine of the section before the last may be invoked here 
 also, for the protection of innocent third persons who have 
 incurred obligations in reliance on what appeared to be a duly 
 executed contract.^ 
 
 III. The Delivery. 
 
 § 349. Essential. — Not only a specialty, as we have already 
 seen,^ but a promissory note * and every other written con- 
 tract, must, to take effect, be delivered ; and the delivery 
 must be absolute, not as a mere escrow." 
 
 § 350. Defined. — The delivery of a written contract is any 
 act whereby the party delivering it relinquishes his power 
 over the writing, whether by passing it directly to the other 
 party, or to any third person, or otherwise, with the expressed 
 or implied intent that it shall operate as a conti-act ; the other 
 party, in fact, or in presumption of law, consenting thereto.* 
 
 dition being "substantially and legally * Burson v. Huntington, 21 Mich, 
 
 complied with." Fahey v. Clarke, 80 415; Howe w. Ould, 28 Grat. 1. 
 
 Ky. 613. This is an instructive applica- ' Hopper v. Eiland, 21 Ala. 714; 
 
 tionofthe maxim that the law does not Carter v. McClintock, 29 Misso. 464; 
 
 concern itself about trifles. 1 Bishop Lansing v. Gaine, 2 Johns. 300 ; Fay v. 
 
 Grim. Law, § 212. Richardson, 7 Pick. 91 ; McPhersou ». 
 
 1 Haskins v. Lombard, 16 Maine, Meek, 30 Misso. 345 ; Freeman v. Peay, 
 140 ; Webb v. Baird, 27 Ind. 368 ; Ad- 23 Ark. 439 ; Hawkes v. Pike, 105 Mass. 
 ams V. Bean, 12 Mass. 137 ; Cutter v. 560 ; Thatcher v. St. Andrew's Church, 
 Whittemore, 10 Mass. 442; Hallett v. 37 Mich. 264; Heffron k. Flanigan, 37 
 Collins, 10 How. U. S. 174; Scott Mich. 274 ; Johnson ». Brook, 31 Missis. 
 «. Whipple, 5 Greenl. 336; Dillon v. 17; Jelks v. Barrett, 52 Missis. 315; 
 Anderson, 43 N. Y. 231; The State v. White v. Core, 20 W. Va. 272; Kex v. 
 Lewis, 73 N. C. 138 ; Los Angeles Lambton, 5 Price, 428 ; Hyner v. Dick- 
 V. Melius, 59 Cal. 444. inson, 32 Ark. 776. 
 
 2 Lyttle V. Cozad, 21 W. Va. 183; « The books seem absolutely bare of 
 Nash V. Fugate, 32 Grat. 595 ; Mowbray definitions of the delivery sufficiently 
 w. The State, 88 Ind. 324, 330 ; Sartwell precise to be of value. After examining 
 o. Humphrey, 136 Mass. 396 ; Davis a good deal of matter under this head, 
 V. Gray, 61 Texas, 506 ; Hastings, &c. for the purpose of quoting definitions by 
 Bailroad v. Miles, 56 Iowa, 447 ; Loving others, I find nothing which would be 
 V. Dixon, 56 Texas, 75 ; Underbill v. of any essential service to the reader. 
 Horwood, 10 Ves. 209, 225. As to the elements of this definition, 
 
 * Ante, § 113. see, among other places, Thompson v. 
 
 1.32 
 
CHAP. XIII.] FORMALITIES AT MAKING. § 351 
 
 § 351. Elements and Reasons. — This question most fre- 
 . quently arises where the contract is single, — that is, not in 
 duplicate, — and it conveys or promises something from the 
 delivering party to the other ; as, for example, where it is a 
 deed of land. Then there must be, either in fact or by pre- 
 sumption of law, a relinquishment of the writing by the 
 grantor or promisor, his intent that it shall take effect, and its 
 acceptance by the other party.^ But so much of this comes or 
 may come by operation of law from acts which outwardly fall 
 short of what is thus stated, and from intents which the law 
 presumes though in truth they may not exist, and in the cases 
 the courts so often overlook important principles to which 
 they would assent if their attention was called to them, that 
 the question appears in the books somewhat confused, and 
 the judicial utterances and adjudications seem not absolutely 
 harmonious. Three principles ought constantly to be borne 
 in mind: the one, that the law presumes an acceptance of 
 whatever is beneficial to a party to whom it is conveyed ; ^ 
 another, that one who has in his possession anything belong- 
 ing to a third person is under the duty to deliver it to the 
 owner, whether such owner knows of the thing and its pos- 
 session or not ; ^ the third, that, when the contract has taken 
 
 Easton, 31 Minn. 99 ; Jelks v. Barrett, ' The law is full of affirmations of 
 
 52 Missis. 315 ; Campbell v, Thomas, 42 this doctrine. Thus, if one finds goods 
 
 Wis. 437 ; Howe v. Ould, 28 Grat. 1 ; which another has lost, and knows who 
 
 Vaughan v. Godraan, 94 Ind. 191; the owner is, his duty is to restore them ; 
 
 Davenport v. Whisler, 46 Iowa, 287 ; and if, instead of doing this, he converts 
 
 Uamison v. Craven, 4 Del. Ch. 31 1 ; them to his own use, he commits larceny 
 
 Brunn v. Schuett, 59 Wis. 260; Fisher of them. 2 Bishop Crim. Law, § 882. 
 
 V. Hall, 41 N. Y. 416 ; American & Co. Another illustration is from the doctrine 
 
 V. Frank, 62 Iowa, 202 ; Thatcher v. St. of interpleader. If one has a thing of 
 
 Andrew's Church, 37 Mich. 264. value in his possession, it being conceded 
 
 1 Brown v. Brown, 66 Maine, 316; that he is under obligation to deliver it 
 Jordan v. Davis, 108 111. 336. to the true owner, then if two persons 
 
 2 Stirling v. Vaughan, 11 East, 619, claim it under different titles, a bill of 
 623 ; Garnons v. Knight, 5 B. & C. 671, interpleader may be maintained in equity 
 692; Jones v. Swayze, 13 Vroom, 279; to settle the right. 2 Story Eq. § 806. 
 Elsberry v. Boykin, 65 Ala. 336, 341 ; This could not be if one might do as he 
 Parker v. Parker, 56 Iowa, HI, 113; chose about delivering up a thing to its 
 Palmer v. Palmer, 62 Iowa, 204 ; Church owner. But it is needless to multiply 
 V. Gilman, 15 Wend. 656 ; Tibbals v. proofs of so plain and familiar a doc- 
 Jacobs, 31 Conn. 428 ; Mallory v. Stod- trine. 
 
 der, 6 Ala. 801. 
 
 133 
 
§ 352 IN GENERAi; WITH ILLUSTRATIONS. : [BOOK I. 
 
 effect, — as', for example, when a deed of land has operated 
 to transfer the title,' -^ the possession of the writing becomes 
 tinimportant.i Bearing these principles in mind, — 
 
 § 352. Possession — ^ (To whom Deliver). — The' ordilisiry- 
 and proper possession of the contract, on and after its delivery, 
 is with the party taking a benefit thereunder. But it is pos- 
 sible there should be a valid delivery while yet it does not 
 apparently pass from the maker's possession ; as, if the ob- 
 ligor in a bond, after signing and sealing it, holds it out in 
 his hand and says to the obligee, "Here is your bond, what 
 shall I do with it? " this is a delivery though it is not other- 
 wise transferred to the latter. The reader will notice that 
 the maker of the writing, in this case, 'relinquished all right 
 to it, and put it in the power of the other party, who accepted 
 its benefit, to take possession of it, and such party's right to 
 the possession became absolute and irrevocable. After that, 
 the delivery being accomplished, it was of no legal conse- 
 quence what became of the writing. ' And it is believed that 
 these are the true elements of a delivery j^ A delivery to the 
 
 1 Austin V. Fendall, 2 MacAr. 362 ; ery Is meant, must pass out of the con- 
 Taliaferro v. Rolton, 34 Ark. 503 ; Hart trol of the maker. That it must so pass 
 V. Rust, 46 Texas, 556 ; Towery v. Hen- seems to be affirmed in such cases as the 
 derson, 60 Texas, 291 ; Otis v. Spencer, following : Johnson v. Brook, 31 Missis. 
 102 111.622. 17; Jelks v. Barrett, 52 Missis. 315;' 
 
 2 Folly V. Vantuyl, 4 Halst. 153; Johnson v. Farley, 45 N. H. 505; Eiy- 
 Waddell v. Hewitt, 1 Ire. Eq. 475 ; Gar- ard v. Walker, 39 111. 413 ; Cook v. 
 nons V. Knight, 5 B. & C. 671 ; Farrar Brown, 34 N. H. 460 ; O'Ne&l w. Brown, 
 
 5 Humph. 411; Harris v. 67 Ga. 707; Hatton ». Jones, 78 Ind. 
 Saunders, 2 Strob. Kq. 370; Xenos v. 466. See Canfield u. Ives, 18 Pick. 253; 
 "Wickham, Law Rep. 2 H. L. 296 ; Rutledge v. Montgomery, 30 Ga. 899. 
 Scrugham v. Wood, 15 Wend. 545; Still I cannot but think that these dif- 
 Hall V. Palmer, 3 Hare, 532, 8 Jar. 459 ; ferences are reasonably reconciled by 
 Hope V. Harman, 11 Jur. 1097, 1100; a comparison of the principles stated 
 Regan i>. Howe, 121 Mass. 424, 426 ; in the text. The writing, it seems to 
 Fisher v. Hall, 41 N. Y. 416; Gage v. me, must go out of the control of the 
 Gage, 36 Mich. 229 ; McLure v. Col- promisor or grantor, yet this need be 
 clough, 17 Ala. 89; Mallett v. Page, 8 only for the instant during which the 
 Ind. 364 ; Stevens v. Hatch, 6 Minn. 64 ; delivery is taking effect. If the one in 
 Warren li. Swett, 11 Fost. N.H. 332; whose possession' it is, tenders to the 
 Floyd V. Taylor, 12 Ire. 47; Dayton v. other the manual control of it, — so re- 
 Newman, 7 Harris, Pa. 194; Goddright linquishing for the instant all power 
 w. Gt-egory, Lofft, 339. There appear over it, — and the other accepts it with- 
 to be some differences of judicial opinion out taking it into his hands, this suffices, 
 as to how far the writing, where a deliv- but nothing less will. A fortiori, where 
 
 134 
 
CHAP. XIII.] FOEMALITIES AT MAKING. § 354 
 
 party's agent is the same as to himself ; ^ and, beyond this, 
 within a principle stated in the last section, a delivery to any 
 third person is likewise the same. Nor, since the party is by 
 law presumed to accept it, will it be other\vise should he be 
 ignorant of the fact.^ A fortiori, the delivery of a trust deed 
 to the cestui que trust will suffice.^ 
 
 § 353. Acceptance by Third Person. — In these cases of 
 the delivery of the writing to a third person, there is authority 
 for saying that, if he does not undertake to act as the agent 
 of the party to whom it runs, and this party, by no word or 
 sign, signifies his acceptance of it, there is no delivery.* And 
 in just reasoning, whether the third person accepts or declines 
 the supposed agency, if the grantor or promisor does not re- 
 linquish all dominion over the writing and all power to re- 
 claim it, such delivery is not effectual.^ But if the third 
 person so far acts as to have the writing in his possession, 
 the grantee or promisee being the owner of it by reason of the 
 other party's having relinquished it, the law^ creates the 
 promise^ to deliver it to the owner whether in form he con- 
 sents or jefuses, so that in this way the instrument becomes 
 effectual. And this is believed to be the true doctrine.^ 
 
 § 354. Delivery to Post-office. — The putting of a deed 
 or promissory note into the post-office, directed to the grantee 
 or promisee, is a delivery if so intended.^ 
 
 the former transfers to the latter the pos- ' Crocker v. Lowenthal, 83 111. 579. 
 
 session, under the mutual understanding * Johnson v. Farley, 45 N. H. 505 ; 
 
 that he has no further claim to It, his Curtis v. Gorman, 19 111. 141 ; Carey v. 
 
 power over it is gone. Dennis, 13 Md. 1 ; The State v. Oden, 2 
 
 1 Everett v. Whitney, 55 lovra, 146 ; Har. & J. 108, note. 
 
 Adams !.•. Ryan, 61 Iowa, 733 ; Henry u. ^ Brown v. Brown, 66 Maine, 316; 
 
 Anderson, 77 Ind. 361. Williams v. Schatz, 42 Ohio State, 47. 
 
 2 Garnons v. Knight, 5 B. & C. 671 ; « Ante, § 351. 
 Withers v. Jenkins, 6 8. C. 122 ; Palmer ' Ante, § 204. 
 
 «. Palmer, 62 Iowa, 204; Myrover v. * Consult, among other cases, Brooks 
 
 French, 73 N. C. 609 ; Jones v: Swayze, v. Marbury, 1 1 Wheat. 78, 96-98 
 
 13 Vroom, 279 ; Elsberry v. Boykin, 65 Tompkins v. Wheeler, 16 Pet. 106, 113 
 
 Ala. 336; Wheelwright u. Wheelwright, Garnons v. Knight, 5 B. & C. 671 
 
 2 Mass. 447, 452; Hatch v. Hatch, 9 Grove v. Brien, 8 How. U. S. 429 
 
 Mass. 307; Regan v. Howe, 121 Mass. Merrills v. Swift, 18 Conn. 257; Wood- 
 
 424; Byington v. Moore, 62 Iowa, 470; ward v. Camp, 22 Conn. 457, 461 ; Pin 
 
 Exton V. Scott, 6 Sim. 31; Lloyd v. tard ». Bodle, 20 Johns. 184. 
 Bennett, 8 Car. & P. 124. See Grugeon « McKinney v. Rhoads, 5 Wntts, 343 ; 
 
 V. Gerrard, 4 T. & Col. Ex. 119. Mitchell v. Byrne, 6 Rich. 171; Kirk- 
 
 136 
 
§ 357 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 § 355. Delivery to Register for Record. — The delivery of 
 a deed of lands to the register of deeds for record is, when 
 viewed independently of its special circumstances, neither a 
 delivery to the party in point of law, nor conclusive evidence 
 of a prior delivery to him in fact. The authorities, as to its 
 precise effect, are not quite harmonious ; but, by some of them, 
 and on principle, it is a delivery to the party if so intended, 
 not otherwise ; also, it is prima facie evidence of such prior 
 delivery. It is not worth while here to distinguish the cases, 
 but a reference to a few of them may be convenient.^ 
 
 § 356. DeUvery as Escrow. — The term " escrow " is com- 
 monly applied to deeds, but evidently it is equally applicable 
 to other written contracts.^ The instrument is called by this 
 name when, after formal execution appears on its face, it is 
 committed to a third person to be delivered and to take effect 
 on the happening of a contingency .^ There appear to be no 
 rules, other than as disclosed in the next section, limiting to 
 any class the person competent to be custodian of an escrow. 
 Even the attorney of the grantee is competent.* And the 
 grantee may be the agent of the grantor to convey the escrow 
 to the third person.^ Further as to which, — 
 
 § 357. Specialty and Simple Contract, distinguished. — The 
 
 man v. Bank of America, 2 Coldw. 397. 56 ; Stewart v. Anderson, 59 Ind. 375 ; 
 
 And compare with ante, § 328. Kemp v. Walker, 16 Oliio, 118. 
 
 1 Barns v. Hatch, 3 N. H. 304; s Worrall v. Munn, 1 Seldeu, 229; 
 Hayes v. Davis, 18 N. H. 600 ; Derry Badcock v. Steadman, 1 Root, 87. 
 Bank v. Webster, 44 N. H. 264, 268 ; * Watkins v. Nash, Law Rep. 20 Eq. 
 Harman v. Oberdorfer, 33 Grat. 497; 262; Price v. Pittsburgh, &c. Railroad, 
 Walsh V. Vermont Mut. Kre Ins. Co. 54 34 111. 13. 
 
 Vt. 351 ; Connard v. Colgan, 55 Iowa, ^ Brown v. Reynolds, 5 Snecd, Tenn. 
 
 538; Tharp v. Jarrell, 66 Ind. 52; 639 ; Dietz k. Farish, 53 How. Pr. 217, 
 
 Palmer v. Palmer, 62 Iowa, 204 ; Alex- 223 ; Gilbert v. North Amer. Fire Ins. 
 
 ander v. Alexander, 71 Ala, 295,297; Co. 23 Wend. 43. But this has been 
 
 Walton V. Burton, 107 111. 54 ; Union questioned as to the case where the 
 
 Mnt. Ins. Co. v. Campbell, 95 111. 267 ; grantee violates his trust. Braman v. 
 
 Gould V. Day, 94 U. S. 405; Summers Bingham, 26 N. Y. 483, 491, 492. In 
 
 V. Darne, 31 Grat. 791. And see Lloyd Dietz v. Farish, supra, Freedman, J. ob- 
 
 t). Bennett, 8 Car. & P. 124; Foley v. served: " A deed may be deposited with 
 
 Howard, 8 Iowa, 56 ; Ward v. Ward, the grantee, or handed to him, for any 
 
 2 Hayw. 226 ; Burt v. Cassety, 12 purpose other than as the deed of the 
 
 Ala. 734; Stewart v. Weed, 11 Ind. grantor or as an effective instrument be- 
 92. . tween the parties, without becoming at 
 
 2 Ortmann r. Monroe Bank, 49 Mich, all operative as a deed." p. 223. 
 
 136 
 
CHAP. XIII.] FORMALITIES AT MAKING. § 358 
 
 delivery of a deed to the grantee in person gives it immediate 
 force, even though accompanied by an oral stipulation that it 
 shall not take effect until a specified contingency has trans- 
 pired. Such stipulation, or condition, is simply void.^ But 
 it is otherwise of a written contract not under seal ; a parol 
 condition that its operation shall commence only on the trans-- 
 piring of a future event will be good.^ If at the first impres- 
 sion this distinction seems technical, a minuter examination 
 will show it to be otherwise. In the case of a specialty, there 
 could be no incorporation into it of a parol condition post- 
 poning its effect without destroying its character as a sealed 
 instrument.^ But oral and written simple contracts being 
 equally parol ones, the degree of this instrument is not 
 reduced by the oral condition. 
 
 § 358. Second Delivery. — When the condition on which 
 the escrow was committed to the custodian is fulfilled, he 
 should deliver it to the grantee. If, in violation of his trust, 
 he delivers it without such fulfilment, or if in any other way 
 it comes into the hands of the grantee surreptitiously, it 
 passes nothing.* There may be special cases, such as where 
 the holder of the escrow is the grantor's agent under circum- 
 stances to justify the grantee in believing him authorized, 
 wherein the grantor will be estopped, after delivery by the 
 agent, to deny that it was authorized and effectual.^ If an 
 escrow is fraudulently delivered, equity may interfere with its 
 
 1 Co. Lit. 36'a; Miller v. !Fletcher, sitions of the text, many of which are 
 
 27Grat. 403; Foley u. Cowgill, 5 Blackf. cited, are not absolutely uniform); Al- 
 
 18; Holford v. Parker, Hob. 246; Mor- exander v. Wilkes, 11 Lea, 221 (but see 
 
 ice V. Leigh, 1 Dy. 34 6; Badcock v. Stewart v. Anderson, 59 Ind. 375); 
 
 Steadraan, 1 Boot, 87 ; Jordan v. Pol- Michels v. Olmstead, 14 Fed. Rep. 219. 
 lock, 14 Ga. 145 ; Graves )). Tucker, 10 » Ante, § 133. 
 
 Sm. & M. 9 ; Worrall v. Munn, 1 Sel- * Cresainger v. Dessenburg, 42 Mich, 
 
 den, 229 ; Bramau v. Bingham, 26 N. Y. 580 ; People v. Bostwick, 32 N. Y. 445 ; 
 
 483 ; Gibion v. Partee, 2 Dev. & Bat. Bobbins v. Magee, 76 Ind. 381 ; Skinner 
 
 530 ; Hagood v. Harley, 8 Rich. 325 ; v. Baker, 79 III. 496 ; White v. Core, 20 
 
 Williams v. Higgins, 69 Ala. 517; W. Va. 272; Peter v. Wright, 6 Ind. 
 
 Wendlinger v. Smith, 75 Va. 309 ; Mc- 183 ; Russell v. Rowland, 6 Wend. 666 ; 
 
 Canu V. Atherton, 106 III. 31; Watkins Everts v. Agnes, 4 Wis. 343 ; Ogden v. 
 
 V. Nash, Law Rep. 20 Eq. 262. Ogden, 4 Ohio State, 182. 
 
 ^ Ante, § 170; Westman v. Krnm- * Simonton's Estate, 4 Watts, 180; 
 
 weide, 30 Minn. 313 (where it is said Thomas v. Bleakie, 136 Mass. 668, 
 
 that the authorities to these two propo- 571. 
 
 137 
 
§ 359 IN GENERAL WITH ILLUSTRATIONS. [BOOK 1. 
 
 injunction against acting thereon, -^ a remedy concurrent 
 with the law's, which holds the delivery void.^ 
 
 § 359. "When takes Effect. — Ordinarily, the delivery of 
 the escrow to the grantee by the holder is essential to its 
 taking effect as a deed, even where the condition has been 
 fulfilled.^ When, after fulfilment, it is delivered, its effect 
 in general dates from such second delivery .^ Connected 
 with this proposition there are some nice distinctions ; as, for 
 example, it is said that, if a deed is delivered to a third 
 person " merely to await the lapse of time, or the happening of 
 some contingency, and not the performance of any condition, 
 it will be deemed the grantor's deed presently," not an escrow. 
 Yet, even in this case, " it will not take effect as a deed until 
 the second delivery ; but, when thus delivered, it will take 
 effect by relation from the first delivery."* Indeed, it is 
 believed that there are various circumstances wherein the 
 transpiring of the event, without any second delivery, will 
 give operation to the writing; and it is immaterial whether 
 we then call it an escrow or not.^ Passing over this kind of 
 distinction, the " general rule does not apply,"- to quote the 
 language of Kent, " when justice requires a resort to fiction.® 
 The relation back to the first delivery, so as to give the deed 
 effect from that time, is allowed in cases of necessity, to avoid 
 
 1 Wyckoff V. Victor Sewing Machine the law that a deed is without effect 
 Co. 43 Mich. 309. until delivery, applicable even where the 
 
 2 4 Kent Com. 454 ; Bushel v. Pas- grantee is entitled to have it delivered, 
 more. Holt, 213 ; Harkreader v. Clayton, and the delivery is refused. 
 
 56 Missis. 383 ; Simpson v. McGlathery, ' Gratz v. Catlin, 2 Johns. 248; 
 
 52 Missis. 723; Chastien v. Philips, 11 Bushel «. Pasmore, Holt, 213; Carter w. 
 
 Ire. 255. I think that such is the law. Turner, 5 Sneed, Tenn. 178 ; Williams's 
 
 and that it is sufficiently shown by the note to Holford v. Parker, Hob. 246 ; 
 
 authorities just cited. But it is mar- Hooper r. Kamsbottom, 6 Taunt. 12; 
 
 vellous how speciously they might sev- Price v. Pittsburgh, &c. Railroad, 34 111. 
 
 erally be reasoned away. In principle, 13 ; Teneick v. Plagg, 5 Dutcher, 25 ; 
 
 the law must be so. The oral condition Kussell v. Rowland, 6 Wend. 666 ; Eeir- 
 
 on which the deed is transferred to the sted v. Avery, 4 Paige, 9. 
 third person cannot be held to pertain * Foster u. Mansfield, 3 Met. 412,415; 
 
 to the deed, for the reason just above Hathaway v. Payne, 34 N. Y. 92, 105. 
 stated. Ante, §357. It is, therefore, a 6 Perryman's Case, 5 Co. 84a; Peck 
 
 condition in the contract for delivery ; v. Goodwin, Kirby, 64. 
 namely, that the deed shall not be deliv- « Simpson v. McGlathery, 52 Missis. 
 
 ered to the grantee until a specified 723; Beekman t>. Frost, 18 Johns, 
 
 thing has transpired. It does not change 644. 
 
 138 
 
CHAP. 2III.] FORMALITIES AT MAKING. § 361 
 
 injury to the operation of the deed from events happening 
 between the first and second delivery, Thus, if the grantor 
 was a feme sole when she executed the deed, and she married 
 before it ceased to be an escrow by the second delivery, the 
 relation back to the time when she was sole is necessary to 
 render the deed valid. But if the fiction be not required for 
 any such purpose, it is not admitted, and the deed operates 
 according to the truth of the case, from the second deliv- 
 ery." ^ Within this principle, — 
 
 § 360. Death. — Since a deed cannot be delivered to a dead 
 man,2 if, while an escrow is lying in the hands of the third 
 person the grantee dies, and then the condition is' fulfilled, 
 the law by its fiction holds the deed to have taken effect from 
 its first and only possible delivery.^ 
 
 § 361. Escrow deliverable on Grantor's Death. — The fore- 
 going distinctions may help us to determine the effect of a 
 deed made to be delivered on the grantor's death." The cases 
 appear a little in conflict or indistinct. If one, to make a gift' 
 of lands, writes and duly acknowledges a deed of them, keep- 
 ing it in his possession but intending that the grantee shall 
 find and record it on his death, it, though thus found and re- 
 corded, is ineffectual because not delivered in the lifetime of 
 the grantor.* But if the grantor commits the deed to a third 
 person to be delivered by the latter on the transpiring of this 
 event, intending it to be absolute, and reserving no right to 
 reclaim or otherwise control it, the estate will pass, either 
 by or independently of the second delivery,^ and as of the 
 date of the first delivery.^ On the other hand, if the grantor, 
 expressly or by implication, reserves in these circumstances 
 the right to reclaim the deed, it will be of no effect.'^ 
 
 1 4 Kent Com. 454. terson v. Snell, 67 Maine, 559 ; Byars «. 
 
 ^ Morgan v. Hazlehurst Lodge, 53 Spencer, 101 111. 429. 
 
 Missis. 665. 5 Latham v. Udell, 38 Mich. 238 ; 
 
 * Ferryman's Case, 5 Co. 84 o, 846; Hatch v. Hatch, 9 Mass. 307. 
 
 Coare v. Glblett, 4 East, 85, 94; Best- « Ball u. Foreman, 37 Ohio State, 132. 
 
 wick V. McEvoy, 62 Cal. 496; Enggles ' Brown v. Brown, 66 Maine, 316; 
 
 V. Lawson, 13 Johns. 285. See Holt's Williams u. Schatz, 42 Ohio State, 47; 
 
 Appeal, 2 Out. Pa. 257; Keirsted v. Walters. Ford, 74 Misso. 195. And see 
 
 Avery, 4 Paige, 9. Campbell w. Thomas, 42 Wis. 437 ; Otto 
 
 1 Huey V. Huey, 65 Misso. 689; Pat- v. Doty, 61 Iowa, 23 ; Byars v. Spencer, 
 
 139 
 
§ 364 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 IV. Incidental Questions. 
 
 § 362. Attesting Witnesses. — 111 soine of our States, cer- 
 tain deeds require, either for their validity or for some col- 
 lateral purpose, to be attested by witnesses subscribing their 
 names thereto.^ And as a means of preserving the evidence, 
 this is commonly practised, not only in deeds but in various 
 other written contracts. Yet, in the absence of a statute, this 
 is not indispensable to the legal validity of the instrument.^ 
 
 § 363. Acknowledgment. — Under our registration laws, the 
 grantor's acknowledgment of his deed, given before a magis- 
 trate, is commonly a prerequisite to its being recorded. And 
 under some of them, it may have other effects. Otherwise it 
 is immaterial.^ But this sort of regulation varies in our States, 
 so we need not further pursue the inquiry here. 
 
 § 364. The Doctrine of this Chapter restated. 
 
 The law, to promote justice and carry out the purposes 
 of contracting parties, has established certain formalities to 
 
 101 111. 429. Contra, Morse v. Slason, ing as his deed to the depositary, to be 
 13 Vt. 296. Substantially in accord delivered to the grantee at his death, or 
 with the propositions of the text is the on some future event, it is the grantor's 
 summary, by Boynton, C. J. in Ball v. deed presently, and the depositary be- 
 Foreman, supra, at p. 139, 140. I copy comes a trustee of the grantee. Crooks 
 it, with the authorities cited by hira. u. Crooks, 34 Ohio State, 610; Mitchell 
 " The following propositions relative to v. Ryan, 3 Ohio State, 377 ; Wheel- 
 the delivery of deeds seem to be well wright v. Wheelwright, 2 Mass. 447, 452 ; 
 established, both upon principle and au- Foster v. Mansfield, 3 Met. 412 ; Mather 
 thority. 1st. Where the grantor places v. Corliss, 103 Mass. 568; Hathaway v. 
 in the" hands of a depositary, a deed to Payne, 34 N. Y. 92. In such case the 
 be delivered to the grantee upon the deed passes a present interest to be en- 
 death of the grantor, reserving the right joyed in the future. Ruggles v. Law- 
 or power to recall the deed at any time son, 13 Johns. 285, 286 ; Tooley v. 
 before his death, there is no delivery, and Dibble, 2 Hill, N. Y. 641." 
 the deed passes no title to the premises i French v. French, 3 N. H. 234 ; 
 therein described. In such case the de- Center w. Morrison, 31 Barb. 155. See, 
 positary is the agent of the grantor, and for a historical view of this subject, 2 
 holds the deed subject to his direction Bl. Com. 307. 
 
 and control. Shirley u. Ayres, 14 Ohio, ^ Morton r. Leland, 27 Minn. 35; 
 
 307; Cook II. Brown, 34 N. H. 460; Dole v. Thurlow, 12 Met. 157, 166; 
 
 Prutsman i>. Baker, 30 Wis. 644. 2d. Quinney v. Denney, 18 Wis. 485. 
 
 But where the grantor delivers the writ- ° Washington v. Dunn, 27 Grat. 608. 
 
 140 
 
CHAP. XIII.] FORMALITIES AT MAKING. § 864 
 
 attend the making of written contracts. They are only to a 
 small degree technical. In the absence of any statute com- 
 manding otherwise, neither a simple contract in writing nor a 
 specialty need be signed, if only the assent of the party in the 
 one case, or his seal in the other, is given. But of some con- 
 tracts our statutes have made signing necessary. A mark, 
 the recognition of the signature when written by another, the 
 writing of the mere initials of the name, — with pen and ink, 
 a pencil, printers' types, or anything else which will leave a 
 legible impression, — will constitute a signing. If no fraud is 
 practised, the written contract will be valid though not read ; 
 but it must be delivered. The rules for the delivery are con- 
 structed in recognition of whatever is within the essence and 
 spirit of a delivery, and they do not enforce outward form and 
 ceremony. The reader will be more benefited by a reperusal 
 of them in full than he would be by any condensed repetition 
 here. 
 
 141 
 
367 IN GENEaiAL WITH ILLCSTBATIONS. [BOOK: I,. 
 
 CHAPTER XIV. 
 
 THE UfTEEPRETATION OP THE CONTEACT AS TO ITS 
 MEANING. 
 
 § 365-368. Introduction. 
 369-378. What in Connection with Written Words. 
 379-418. Leading Rnles of Interpretation. 
 419-423. Precedence of the Rules. 
 424-427. Further Explanations. 
 
 428. Doctrine of Chapter restated. . ■ , 
 
 § 365. Meaning — Effect. — The interpretation of a contract 
 is the ascertaining, not only of its verbal meaning, but also of 
 its legal effect. The former is for elucidation in this chapter, 
 the latter in the next. 
 
 § 366. Difficulties of Subject. — The construction of con- 
 tracls, like that of statutes with which it is nearly identical,^ 
 is a subject both easy and difficult of comprehension. Its dif- 
 ficulties are threefold : first, in bringing the mind down, from 
 its ordinary upward straining after something great, to the 
 simple common-sense of the thing ; secondlj', in applying the 
 nearly axiomatic rules of interpretation in such way as to 
 give each its proper force, and preserve the due order of pre- 
 cedence among the rules; thirdly, in appreciating the fact 
 that the books do impart real light on the subject, and that 
 it is the practitioner's duty to study and consult them. The 
 rules themselves are easily enough ascertained ; and, like 
 other good tools, they do excellent work when well handled, 
 and mischief in the hands of the bungler. 
 
 § 367. Importance. — In importance, this entire topic, in- 
 cluding the interpretation of statutes and all other legal 
 
 1 Bishop Written Laws, § 4. 
 
 142 
 
CHAP. XIV.] INTEEPBETATION • — MEANING. § 370 
 
 writiiigs, is second to no other in the law. As said by Mr. 
 Preston, speaking of the exposition of deeds, a knowledge of 
 it is " indispensable," — ■ " as essential as is the knowledge of 
 the alphabet, and of the rules of grammar, to those persons 
 who would become proficients in any language."^ This is 
 among the reasons which induced the author to place this 
 chapter so early in the volume. 
 
 § 368. How Chapter divided. — We shall inquire, I. What 
 is to be regarded in Connection with the Written Words ; 
 II. What are the Leading Rules of Interpretation ; III. 
 Precedence of the Rules; concluding with, IV. Further 
 Explanations. 
 
 I, What is to be regarded in Connection with the Written 
 
 Words. 
 
 § 369. Fragmentary Nature of the Authorities. — The sub- 
 ject of this sub-title calls once more to mind the fact, never to 
 be lost sight of in the investigation of legal questions, that to 
 a considerable extent our law authorities present the respec- 
 tive doctrines in fragments, instead of completed entities.^ 
 It could not be otherwise ; for, from the nature of judicial 
 functions, our courts must, and therefore do, constantly limit 
 their investigations by the limited facts of the particular case 
 under decision. So their horizon of vision is always contracted, 
 and it is never precisely the same in two cases. Hence, of 
 necessity, their several enunciations are but fragments of the 
 real, rounded doctrine, which often no court has occasion to 
 propound. To collect these fragments, and mould them into 
 the pillared law which bestuds the pathway of the finished 
 jurist, is the proper work of the commentator. In the spirit 
 of this duty, if not in its complete fulfilment, let us endeavor to 
 discern how, on a wider view than the books generally give 
 us, yet not departing from their teachings, the law of this sub- 
 title stands. 
 
 § 370. Governing Principles. — Persons contracting together 
 
 1 In his edition of Shep. Touch. 88. * Ante, § 184, note, 217, note. 
 
 148 
 
§ 372 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 have around them the entire world and all its wisdom and 
 folly. But evidently they do not know all ; and, if one is 
 cognizant and another ignorant of the same thing, a principle 
 already stated,^ whereby, for the promotion of fair dealing, 
 the former is estopped to set up what lies in his own mind 
 unknown to the other, will prevent any knowledge which is 
 not actually or presumptively mutual from being taken into 
 the account. The parties, therefore, speak in their contract 
 from the fountain of mutual knowledge ; ^ and, if we would 
 precisely interpret their words, we must put ourselves exactly 
 in their position, and know just what they mutually knew, 
 with neither addition nor abatement.^ But fully to do this is 
 impossible. The interpreter can accomplish, in this direction, 
 only what, within the rules of evidence, is practicable, and 
 there he must stop. The most conspicuous of all the limits 
 which the law of evidence will impose upon him is, that he 
 shall not undertake to inform himself of anything not legally 
 adapted to illumine the question of the meaning.* In fact, 
 the author is not quite prepared to say that this is not the 
 only limit. Hence, — 
 
 § 371. Defined. — The doctrine of this sub-title is, that the 
 interpreter of a contract shall look, not only into the words, 
 but in connection with them into all such of the surrounding 
 facts as, without violating any rule of law, and being known 
 to both parties, tend to modify the interpretation. To take 
 now up the subject more neail}' in the ordinary language of 
 the books, — 
 
 § 872. Surroundings. — Though the writing cannot be orally 
 contradicted,^ except when it is to be reformed in equity as 
 not expressing what both the parties intended, or under equi- 
 table rules is to be treated as thus reformed,^ yet the parties' 
 surroundings, their relations to each other, and the like, may 
 
 1 Ante, § 317. Griswold v. Scott, 13 Ga. 210; Clark v. 
 
 2 Haddock v. Woods, 46 Iowa, 433. Lillie, 39 Vt. 405. 
 
 8 Rawson v. Beach, 13 R. I. 151, 152. 6 1 Greenl. Ev. § 296 o ; Murray u. 
 
 * 1 Greenl. Ev. § 52 ; Stephen Ev. Dake, 46 Cal. 644 ; Popplein v. Foley, 
 
 May's ed. 37. 61 Md. 381 ; Kelley v. McKinney, 5 
 
 5 Ante, § 169; Glendale Woolen Co. Lea, 164; post, § 687. 
 V. Protection Ins. Co. 21 Conn. 19; 
 
 144 
 
CHAP. XIV.] INTEEPRETATION — MEANmG. §374 
 
 be shown as helps to the understanding of their written stipu- 
 lations.^ And within this rule are, not only parol facts, but 
 likewise contemporaneous writings which do not constitute 
 parts 2 of the contract.^ But our books do not always express 
 the doctrine quite so broadly ; and, in truth, — 
 
 § 373. Limitations of Surroundings. — The doctrine is lim- 
 ited and restrained, as just intimated,* within comparatively 
 narrow bounds. Fully to draw the lines of distinction be- 
 tween the admissible and inadmissible would conduct us too 
 far into the law of evidence, which is not for the present 
 work. Some illustrations are, — 
 
 § 374. Names of Persons — (^Latent Ambiguity^. — The 
 surroundings may be looked into to discover persons bearing 
 the names written in the contract. Then, should two of one 
 of those names be found, the oral evidence may be carried to 
 the further point of showing which of the two was meant.* 
 In other words, if, bringing by oral proofs the surroundings 
 before us, we find two persons of the one name, there is dis- 
 closed to us what is called a latent ambiguity; that is, an 
 ambiguity arising out of the evidence where, on the face of 
 the writing, all is plain. Thereupon the rule is, that such 
 ambiguity, being created by parol, may be explained by parol.® 
 But, — 
 
 1 1 Greenl. Er. § 297 ; Add. Con. 7th 3 Norris, Pa. 514 ; Crawford v. Elliott, 
 
 London ed. 164; Maryland v. Railroad. 78 Misso. 497; Pratt v. Canton Cotton 
 
 22 Wal. 105 ; Dodge «. Gardiner, 31 N. Y. Co. 51 Missis. 470 ; Mobile, &c. Railway 
 
 239 ; Western N. Y. Life Ins. Co. v Clin- v. Jurey, 111 U. S. 584, 692 ; Knick v. 
 
 ton, 66 N. Y. 326, 331 ; Clark v. New Knick, 75 Va. 12, 19; Stewart v. Smith, 
 
 York Life Ins. &c. Co. 64 N. Y. 33, 37 ; 3 Baxter, 231 ; Garmichael v. White, 
 
 PoUardo.Maddox, 28 Ala. 321; Sumner 11 Heisk. 262; Spaulding v. Coon, 50 
 
 V. Williams, 8 Mass. 162, 214; Price v. Mich. 622. 
 Evans, 26 Misso. 30 ; Codman v. John- ^ pogt, § 382. 
 
 son, 104 Mass. 491 ; Masters v. Freeman, » Wilson v. Randall, 67 N. Y. 338 ; 
 
 17 Ohio State, 323 ; Hutchins v. Hebhard, Marietta Savings Bank v. Janes, 66 Ga. 
 
 34 N. Y. 24 ; Webster v. Blount, 39 Misso. 286. 
 500 ; Salisbury v. Andrews, 19 Pick. 250, * Ante, § 370. 
 
 253 ; Knight v. New England Worsted « The State v. Weare, 38 N. H. 314 ; 
 
 Co. 2 Cnsh. 271 ; Farmers Loan, &e. Co. Simpson v. Dix, 131 Mass. 179, 184. 
 V. Commercial Bank, 15 Wis. 424 ; Wil- « Post, § 390 ; BrufE v. Conybeare, 13 
 
 liamson v. McClure, 1 Wright, Pa. 402 ; C. B. N. 8. 263, 9 Jur. n. s. 78, 79 ; Bank 
 
 Tracy v. Chicago, 24 III. 500 ; Aldrich v. of United States v. Dunn, 6 Pet. 51, 58 ; 
 
 Aldrich, 135 Mass. 153; Rockwell v. Cnbberly v. Cubberly, 7 Halst. 308; 
 
 Humphrey, 57 Wis. 410 ; Lacy v. Green, Steadman v. Taylor, 77 N. C. 134. 
 
 10 145 
 
§ 377 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 § 375. Patent Ambiguity. — Since the general doctrine for- 
 bids the modification of written contracts by oral proofs,^ there 
 is no very clear ground for excepting the parts which are 
 obscure. So it has become a sort of i^e, that an ambiguity 
 in the writing itself, termed a patent ambiguity, cannot be 
 explained by parol. Yet this does not exclude all evidence 
 of the surroundings; and in various circumstances the am- 
 biguity, though patent, may be removed by the oral elucida- 
 tions.2 Again, — 
 
 § 376. Subject of Contract. — Parol evidence is always ad- 
 missible to identify the subject of a contract ; of course, in 
 subordination to its terms.® Thus, on a deed of a mill and 
 its appurtenances, the appurtenances may be pointed out 
 orally;* or, if one bargains with another to pay him so much 
 for his " farm," the farm may be located by parol ; ^ or, to 
 buy a certain number of hogs, the animals may in this 
 manner be identified.^ And so may all uncertainties in the 
 descriptions of things, if the facts allow, be explained by 
 parol.'' 
 
 § 377. Meanings of Words and Terms. — Ijf the contract is 
 in our own language, the meanings of its wo^s are judicially 
 known to the court ; ^ but, if in a foreign language, they are 
 to be proved.^ The common abbreviations are English, and 
 
 J Ante, § 372. * Scheible v. Slagle, 89 Ind. 323 ; 
 
 2 Fish V. Hubbard, 21 Wend. 651, Baker v. Bessey, 73 Maine, 472. 
 
 659 ; Richmond Trading, &c. Co. v. Far- 6 Brinkerhoff v. Olp, 35 Barb. 27. 
 
 qnar, 8 Blackf. 89 ; Haven v. Brown, 7 To the like effect, Baucnm v. George, 65 
 
 Greenl. 421; Crawford «. Jarrett, 2 Ala. 259; Pettigrew v. Dobbelaar, 63 
 
 Leigh, 630; Locke u. Sioux City, &c. Cal. 396; Chicago Dock, &o. Co. v. 
 
 Railway, 46 Iowa, 109 ; Merriam v. Kinzie, 93 111. 415. 
 
 Pine City Lumber Co. 23 Minn. 314; « Pope ». Machias, &c. Co. 52 Maine, 
 
 Rockwell ». Humphrey, 57 Wis. 410; 535. To the like effect, Norris ». Spof- 
 
 Nilson 0. Morse, 52 Wis. 240; Hueske ford, J 27 Mass. 85. 
 
 w.Broussard, 55 Texas,- 201. ' Cooper u. White, 30 Ark. 513; Mes- 
 
 s Hildebrand v. Fogle, 20 Ohio, 147 ; ser v. Oestreich, 52 Wis. 684 ; Hamm 
 
 Coleman v. Manhattan Imp. Co. 94 «. San Francisco, 17 Fed. Eep. 119. 
 
 N. Y. 229 ; Almgren v. Dutilh, 1 Sel- 6 i Greenl. Ev. § 5 ; Bishop Stat, 
 
 den, 28, 33 ; Bennett v. Pierce, 28 Crimes, § 1006 o. 
 
 Conn. 315 ; McGregor v. Brown, 5 » Bishop Dir. & F. § 619, note; 
 
 Pick. 170, 174; Pharoah v. Lush, 2 Grell w. Levy, 16 C. B. N. s. 73, 10 Jur. 
 
 Fost. & F. 721 ; Howard v. Pepper, n. B. 210; Di Sora u. Phillipps, 10 H. L. 
 
 136 Mass. 28. Cas. 624. 
 
 146 
 
CHAP. XIV.] INTEEPRETATION — MEANING. §379 
 
 SO taken cognizance of without proof ; ^ as, for example, 
 "admr." for administrator.^ In this way, "C. O. D.," once 
 unintelligible to most people, has come so fully into use that 
 its signification is now known judicially.^ And words and 
 abbreviations are constantly being added to the language, 
 and the courts thus recognize their definitions as fast as their 
 use becomes common.* But while they are employed only in 
 a particular locality, or by a particular class of persons, their 
 significations in a contract must, to be known by the judge 
 and jury, be proved ; as, that " f. o. b." means free on board.^ 
 In this way, such words as " put " and " call," ^ " on margin," ^ 
 "cuts," 8 "stubble," 3 "current funds,"!" and "spitting of 
 blood," !! have been explained. The meaning of an ancient 
 charter in Latin is derivable from evidence of ancient use and 
 practice,!^ and all old charters may be interpreted in the light 
 of long usage under them.^^ Again, — 
 
 § 378. Law and Usage. — Both the court and the parties 
 are conclusively presumed to know the law,!* but a local or 
 limited custom or usage must be proved.!^ 
 
 II. The Leading Rules of Interpretation. 
 
 § 379. Need for Interpretation. — There should be interpre- 
 tation only .where it is needed ; that is, only where, without 
 it, the meaning or effect of the contract would be in doubt.^^ 
 Assuming such need, — 
 
 1 Stephen v. The State, II Ga. 225; " Singleton v. St. Louis Mut. Ins. 
 Weaver v. McElhenon, 13 Misso. 89. Co. 66 Misso. 63. 
 
 But see Ellis v. Park, 8 Texas, 205 ; 12 Attorney-General v. Boston, 9 Jur. 
 
 Eussell a. Martin, 15 Texas, 238. 838. 
 
 2 Mosoley v. Mastin, 37 Ala. 216. i' Newcastle Pilots v. Bradley, 2 Ellis 
 8 United States Express Co. v. Kee- & B. 428, note, 16 Jur. 494; Blankley 
 
 fer, 59 Ind. 263. ' v. Winstanley, 3 T. R. 279 ; Gape v. 
 
 * 1 Bishop Crim. Proced. § 347. Handley, 3 T. R. 288, note; Rex v. Os- 
 
 6 Silberman v. Clark, 96 N. Y. 522. bourne, 4 East, 327 ; Rex v. Varlo, 
 
 6 Pixley V. Boynton, 79 111. 351. Cowp. 248. 
 
 ' Hatch V. Douglas, 48 Conn. 116. " Hart v. United States, 95 U. S. 316. 
 
 8 Houghton V. Watertown Fire Ins. '^ Page v. Cole, 120 Mass 37 ; Jones v. 
 Co. 131 Mass. 300. Hoey, 128 Mass. 585 ; Mand v. Trail, 92 
 
 9 Callahan v. Stanley, 57 Cal. 476. Ind. 521 ; Branch v. Palmer, 65 Ga. 210. 
 w Haddock v. Woods, 46 Iowa, 433. " Vattel Law of Nations, b. 2, § 263 ; 
 
 147 
 
§ 382 IN GENERAL WITH a,LUSTRATIONS. [BOOK I. 
 
 § 380. Intent of Parties. — The rule most conspicuous and 
 wide-reaching of all is, that a written contract shall be so 
 interpreted as, if possible, to carry out what the parties 
 meant.i This is likewise the foremost rule for the interpre- 
 tation of statutes ; namely, so to render them as to give effect 
 to the legislative intent.^ At the same time, — 
 
 § 381. Words of Contract. — The parties are bound by the 
 terms which they have voluntarily employed.^ And since 
 they cannot plead ignorance of the law,* neither likewise can 
 they, of the effect of their language.^ Within this rule, a 
 stipulation for a thing will not be satisfied by something else 
 presumably as good ; as, if a railroad, by its ticket, promises a 
 ride from Portland to Boston, it cannot be compelled to fur- 
 nish one from Boston to Portland.^ And if an insurance 
 policy declares that certain answers shall constitute a part of 
 the contract and be a warranty, the insured person cannot 
 avoid their effect by showing their immateriality.'' 
 
 § 382. Entire Writing — Other Writings. — The whole of 
 the written instrument, whether on one piece of paper or on 
 detached pieces constituting one contract, and all writings on 
 the same subject, whether together forming one agreement or 
 
 Bishop 'Written Laws, §72; BToyes v. are curious and almost subtle, asbiti 
 Nichols, 28 Vt. 159 ; Means f. Presbyte- (which is the word used iu the proverbs 
 rian Church, 3 Watts & S. 303; McCon- of Solomon in a good sense), to invent 
 nell V. New Orleans, 35 La. An. 273 ; reasons and means to make acts accord- 
 Walker V. Tucker, 70 111. 527. ing to the just intent of the parties, and 
 1 Collins V. Lavelle, 44 Vt. 230 ; to avoid wrong and injury." Hobart, J. 
 Browning v. Wright, 2 B. & P. 13, 26 ; in Clanrickard v. Sidney, Hob. 273, 277 6. 
 Hunter ». Miller, 6 B. Monr. 612; This doctrine is confirmed in Crossing ». 
 Wolfe V. Scarborough, 2 Ohio State, Scudamore, 1 Vent. 137, 141. 
 361; Higgins v. Wasgatt, 34 Maine, 2 Bishop Written Laws, § 70, 7.% 76. 
 305; Wilkinson v. Tranmarr, Willes, 8 Ante, § 317, 370 ; Strohecker v. 
 682, 2 Wils. 75 ; Stadhard v. Lee, 3 B. Farmers Bank, 6 Barr, 41 ; Holmes v. 
 & S. 364, 9 Jur. n. s. 908 ; Pomery v. Hall, 8 Mich. 66 ; Furbush v. Goodwin, 
 Partington, 3 T. R. 665 ; Smith v. "jer- 5 Post. N. H. 425. 
 sey, 3 Bligh, 290, 2 Brod. & B. 473. < Ante, § 378 ; post, § 462. 
 " If a deed can operate two ways, one * Boner v. Mahle, 3 La. An. 600 ; 
 consistent with the intent and the other Watrons v. McKie, 54 Texas, 65. 
 repugnant to it, courts will be ever as- « Keeley v. Boston, &c. Railroad, 67 
 tute so to construe it as to give efiect to Maine, 163. To the like effect, How- 
 the intent." Dallas, C. J. in Solly v. ard v. Chicago, &c. Railroad, 61 Missis. 
 Forbes, 2 Brod. & B. 38, 48, 49. " I do 194. 
 exceedingly commend the judges that ' Thomas u. Fame Ins. Go. 108111. 91. 
 
 148 
 
CHAP. XIV.] 
 
 INTERPRETATION — MEANING. 
 
 §383 
 
 more than one, if made simultaneously or sometimes when 
 even executed on different days, should be looked at in inter- 
 preting each particular part.^ Plans, maps, specifications, 
 schedules, and other like things referred to in the principal 
 writing should be considered as constituting with it a whole.^ 
 
 § 383. Inaccuracies. — No inaccuracy of language, whether 
 from false grammar, from employing a word in a wrong mean- 
 ing, omitting a word or even a clause plainly meant to be in- 
 serted, inserting a word not meant, using the wrong word, or 
 otherwise, will be permitted to defeat the intent, when it can 
 thus be distinctly ascertained.^ For example, to give effect 
 to the evident meaning, "or" may be read as "and;"* 
 "quarterly" as "annually;"^ and "party of the first part" 
 as "party of the second part."® So a bond beginning "I 
 hereby bind myself," and signed by more persons than one, 
 is obligatory on all.'^ And in England a bill for " twenty- 
 
 1 Collins u. Lavelle, 44 Vt. 230; 
 KoTthamberland v. Errington, 5 T. R. 
 522, 526 ; Hesse v. Stevenson, 3 B. & P. 
 565; Wildman v. Taylor, 4 Ben. 42; 
 New Hampshire Bank v. Willard, 10 
 N. H. 210 ; Thomas v. Austin, 4 Barb. 
 265; Holmes v. Martin, 10 Ga. .503; 
 Stover V. Metzgar, 1 Watts & S. 269; 
 Whitehurst v. Boyd, 8 Ala. 375 ; Casey 
 V. Holmes, 10 Ala. 776; Stacey v. Ran- 
 dall, 17 III. 467; Makepeace i>. Harvard 
 College, 10 Pick. 298, 302; Hunt v. 
 Frost, 4 Cash. 54; Craig v. Wells, 1 
 Kernan, 315; Berry v. Wisdom, 3 Ohio 
 State, 241 ; Dibol v. Minott, 9 Iowa, 
 403; Berryman v. Hewit, 6 J. J. Mar. 
 462 ; Payler v. Homersham, 4 M. & S. 
 423, 426 ; Morss v. Salisbury, 48 N. Y. 
 636; Byrd v. Ludlow, 77 Va. 483; 
 Wood V. Bibbins, 58 Ind. 392 ; HUl v. 
 Parker, 10 Bradw. 323 ; Cooper v. 
 Shaver, 5 Out. Pa. 547. See ante, 
 §165. 
 
 2 Walker v. Boynton, 120 Mass. 349 ; 
 Erskine v. Monlton, 66 Maine, 276; 
 Snow V. Schomacker Manuf. Co. 69 Ala. 
 Ill ; Weeks o. Maillardet, 14 East, 568 ; 
 Reed v. Lammel, 28 Minn. 306 ; Cum- 
 mings V. Browne, 61 Iowa, 385 : Sexton 
 
 V. Chicago, 107 111. 323; Jenkins v. 
 Harrison, 66 Ala. 345. 
 
 3 Wilson 17. Wilson, 5 H. L. Cas. 40, 
 66; Kelley v. Upton, 5 Duer, 336; 
 Thayer v. Lapham, 13 Allen, 26 ; Oliver 
 V. Brown, 3 Bur. 1626, 1634, 1635; 
 Leach v. Micklem, 6 East, 486 ; Stock- 
 ton V. Turner, 7 J. J. Mar. 192; De 
 Soto V. Dickson, 34 Missis. 150; Kin- 
 cannon V. Carroll, 9 Yerg. 11 ; Pannell 
 V. Mill, 3 C. B. 625, 638 ; Salmon Falls 
 Manuf. Co. v. Portsmouth Co. 46 N. H. 
 249; Fowle v. Bigelow, 10 Mass. 379, 
 383 ; Sauuders v. Hanes, 44 N. Y. 353 ; 
 Caldwell v. Layton, 44 Misso. 220 ; At 
 lanta and West Point Railroad ». Speer, 
 32 Ga. 550; Morey v. Homan, 10 Vt. 
 565 ; Bennehan v. Webb, 6 Ire. 57 ; Ire- 
 dell V. Barbee, 9 Ire. 250; Whitsett w. 
 Womack, 8 Ala. 466; Hogans v. Car- 
 ruth, 19 Fla. 84, 90. 
 
 * Elliott V. Ellis, 14 Philad. 188 ; 
 Bishop Written Laws, § 243. 
 
 6 Fowler v. Woodward, 26 Minn. 
 347. 
 
 6 Huyler v. Atwood, 11 C. E. Green, 
 504. 
 
 ' Knisely v, Shenberger, 7 Watts, 
 193. 
 
 149 
 
§ 385 IN GENERAL WITH ILLUSTRATIONS. [BOOK I.. 
 
 five, seventeen shillings, and three pence " is for twenty-five 
 pounds, &c. " It must mean pounds, it cannot mean anything 
 else." ^ Yet, excepting these and other like cases, the rule is, 
 that — 
 
 § 384. Effect given every Clause and ^^ord. — Every clause 
 and even every word should, when possible, have assigned to 
 it some meaning. It is not allowable to presume, or to con- 
 cede when avoidable, that the parties in a solemn transaction 
 have employed language idly.^ And this applies the same to 
 the writing as a whole as to its particular expressions ; so that, 
 for illustration, if it may operate as a deed, yet if for want of 
 due attestation it cannot take effect as a will, it will be held 
 to be the former.^ Still, — 
 
 § 385. Surplusage. — The necessities of the interpretation 
 may compel the rejection of a word or phrase. Thus, if an 
 insurance policy on dry goods and groceries, not covering the 
 building, declares that the keeping of gunpowder " upon or in 
 the premises insured " shall render the policy void, this pro- 
 vision will be rejected in the interpretation ; for there is 
 nothing to which it can be applied.* And a false description 
 in a deed will be thus rejected, if there is other matter suffi- 
 ciently showing the intent.^ So likewise may be any mean- 
 ingless word,^ and so even a sealJ If a conveyance of real 
 and personal property is invalid as to the realty, it may still 
 take effect as to the personalty.* Among the obscurities 
 which require this sort of treatment, is — 
 
 1 Phipps t!. Tanner, 5 Car. & P. 488, Bosworth, 2 Ves. & B. 341 ; Fowle v. 
 by Tindal, C. J. To the like effect, Kerchner, 87 N. C. 49. 
 
 Harman v. Howe, 27 Grat. 676 ; Coles v. » Dismukes v. Parrott, 56 Ga. 513. 
 Hulme, 8 B. & C. 568 ; Butler v. Bohn, * Mosley w. Vermont Mat. Fire Ins. 
 
 31 Minn. 325. Co. 55 Vt. 142. 
 
 2 Shelle/s Case, 1 Co. 93 6, 956; ^ Jackson v. Hodges, 2 Tenn. Oh. 
 Heywood v. Heywood, 42 Maine, 229 ; 276 ; Getchell v. Whittemore, 72 Maine, 
 Baron v. Placide, 7 La. An. 229 ; Met- 393 ; Harris v. Hull, 70 Ga. 831 ; Brad- 
 calf V. Taylor, 36 Maine, 28 ; Hydeville shaw v. Bradbury, 64 Misso. 334. 
 
 Co. V. Eagle Railroad and Slate Co. 44 ' Decorah v. Kesselmeier, 45 Iowa, 
 
 Vt. 395; Churchill w. Reamer, 8 Bush, 166. 
 
 256, 260; Randel v. Chesapeake and 1 Thomas «. Joslin, 30 Minn. 388. 
 
 Delaware Canal, 1 Barring. Del. 151; * Thompson w. Marshall, 36 Ala. 504. 
 
 Bush V. Watkins, 14 Beav. 425 ; Cor- And see Northern Pacific Railroad v. 
 
 bin V. Healy, 20 Pick. 514; Herrick v. United States, 15 Ct. of CI. 428. 
 Hopkins, 23 Maine, 217; Stratford v. 
 
 150 
 
CHAP. XIV.] INTERPRETATION — MEANING. §388 
 
 § 386. Repugnancy. — After interpretation has exhausted 
 itself in harmonizing the several clauses and words, if there is 
 a residue which cannot be reconciled, the repugnancy must be 
 got rid of by rejecting what will free the writing from it.^ 
 The difficulty is to determine what to reject and what to re- 
 tain. The author believes it to be the true method to regard 
 but lightly the technical rules on this question ; and, feeling 
 after the intent of the parties,^ to discard on the one hand, , 
 and retain on the other, what in the result will best give effect 
 to such intent.^ Still, there are some minor rules, of unequal 
 value, which, applied in subordination to the superior one of 
 following the intent, may be of service. To illustrate, — 
 
 § 387. Proviso. — If the main body of the writing is followed 
 by a proviso wholly repugnant thereto, it must necessarily be 
 rejected, because otherwise the entire contract will be ren- 
 dered null.* But where it can be construed to qualify the 
 main provisions, so that all may stand together, it will be re- 
 tained." Likewise, — 
 
 § 388. Inconsistent Power — Habendum. — As a married 
 woman under the common-law disabilities can alienate her 
 lands only in concurrence with her husband, if, in a devise or 
 deed of lands to her, there is embodied a power to dispose of 
 them independently of him, it will be void, because repugnant 
 to the gift or grant. It could not stand without overthrowing 
 all.^ So a conveyance in fee cannot be cut down to a life 
 estate by the habendum of the deed ; for it would be incon- 
 
 1 Lambe v. Reaston, 5 Taunt. 207 ; « Bac. Abr. Grant, I. 1 ; Stewkley's 
 
 Cooleyw. Warren, 53 Misso. 166; She- Case, Sir F. Moore, 880; JFurnivall v. 
 
 waiter v. Pirner, 55 Misso. 218; Wells Coombes, 5 Man. & G. 736, 6 Scott, 
 
 V. Wright, 2 Mod. 285 ; Phillips v. For- N. R. 522. 
 
 ter, 3 Pike, 18; Eldridge v. See Ynp ' Williams v. Hathaway, 6 Ch. D. 
 
 Co. 17 Cal. 44; Gibson v. Bogy, 28 544. Compare with Bishop Written 
 
 Misso. 478 ; Emerson v. White, 9 Fost. Laws, § 65. 
 
 N. H. 482. " Goodill v. Brigham, 1 B. & P. 192, 
 
 * Ante, § 380. Eyre, C. J., putting the reason thus : 
 
 ' Driscoll 0. Green, 59 N. H. 101 ; " When a devisor gives an estate to a 
 
 Case V. Dwire, 60 Iowa, 442 ; Smith v. feme covert and attempts to relieve her 
 
 Flanders, 129 Mass. 322; Findley v. from the disability arising from her cov- 
 
 Armstrong, 23 W. Va. 113; Erskine erture, his estate being exhausted, the 
 
 V. Moulton, 66 Maine, 276 ; Gallaher v. law must control her enjoyment of it." 
 
 District of Columbia, 19 Ct. of CI. 564. p. 196. 
 
 151 
 
§ 390 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 sistent with the former part of it, which, for the reason just 
 stated, must prevail.^ Again, — 
 
 § 389. Order of Clauses. — Some of the books, particularly 
 the older ones, undertake to give effect to the order of repug- 
 nant clauses in writings ; often making what is earlier yield to 
 what stands nearer the end, as a later expression of the in- 
 tent.2 This idea is now less insisted upon than formerly, and 
 ■it is believed to be utterly destitute of practical value.^ In 
 Sheppard's Touchstone, an old distinction within this idea is 
 stated thus : " If there be two clauses or parts of the deed 
 repugnant the one to the other, the first part shall be received 
 and the latter rejected, except there be some special reason to 
 the contrary. And therefore herein a deed doth differ from 
 a will ; for, if there be two repugnant clauses in a will, the 
 first shall be rejected and the latter received." * It is hardly 
 presumable that, at the present day, many courts would much 
 regard this distinction. Surely, in reason, as the whole of a 
 written contract or will was executed simultaneously, there 
 can be in it no first, no middle, no last. 
 
 § 890. Void for Uncertainty. — If the meaning of the parties 
 cannot be ascertained from the interpreted writing, — and the 
 case is not one of a latent ambiguity, which, being created by 
 oral testimony, may be orally explained,® — the contract will 
 be void for uncertainty.* Something of this was shown in 
 an earlier chapter.'' To add a few of the innumerable illus- 
 trations, a promise to sell "forty acres of land" is ordinarily 
 
 1 Robinson v. Payne, 58 Missis. ' Ante,. § 117, 316; Garnett ii. Gar- 
 690. nett, 7 T. B. Monr. 545 ; Grand Golf 
 
 2 2 Pars. Con. 513, 514. Railroad and Banking Co. «. Bryan, 8 
 ' Bishop Written Laws, § 65 ; Ham- Sm. & M. 234 ; Winslow v. Winslow, 62 
 
 ilton V. Thrall, 7 Neb. 210. Ind. 8 ; Church, &c. Soc. v. Hatch, 48 
 
 * Shep. Touch. 88. N. H. 393 ; Eleinpeter v. Harrigan, 21 
 
 S Ante, §374; 1 Greenl. Ev. § 297 ; La. An. 196; Tolhurst ». Brickinden, 
 
 Cnbberly v. Cubberly, 7 Halst. 308 ; Cro. Jac. 250 ; Webster v. Ela, 5 N. H. 
 
 McCulIough V. Wainright, 2 Harris, 540; Price v. Gri65th, 15 Jur. 1093; 
 
 Pa. 171 ; Hiscocks v. Hiscocks, 5 M. & Brooklyn Life Ins. Co. v. Bledsoe, 52 
 
 W. 363, 368 ; Clark v. Powers, 45 111. Ala. ,538 ; Buckmaster v. Consumers 
 
 283; Leonard v. Carter, 16 Wis. 607; Ice Co. 5 Daly, 313; Atkins ». Van 
 
 Murray v. Blackledge, 71 IS. C. 492; Buren, 77 Ind. 447. 
 
 Bulkeley v. Wilford, 2 Car. & P. 173, 8 ' Ante, § 316. 
 
 D. & R. 549. 
 
 162 
 
CHAP. Xrv.] INTERPRETATION — MEANING. § 393 
 
 void ; 1 but, in all cases, where parol evidence can duly locate 
 the land,2 a general designation is good.^ Though the de- 
 scription appears on its face adequate, it will be void if the 
 parol attempt at identification fails.* The words " this note 
 to be extended if desired by makers," indorsed on it, are 
 too indefinite to have legal efi^ect.^ But one's promise to sell 
 to another all the straw he has to spare,^ or to deliver a " car- 
 load " of ice,^ is sufficiently certain.^ 
 
 § 391. Uphold the Transaction. — The foregoing views dis- 
 close, that, if possible, the contract shall be so construed as to 
 carry into effect the purpose of the parties, instead of being 
 void.* Thus, — 
 
 § 392. Lawful. — If the terms admit of two meanings, or 
 two ways of effecting the object, by one of which the thing 
 would be unlawful and by the other lawful, the latter con- 
 struction must be adopted.^" Or the lawful can be separated 
 from the unlawful, and the contract enforced for the former.-'^ 
 For illustration, — 
 
 § 393. Statutory Bond. — A statutory bond must, to be 
 valid under the statute, conform in substance to the statutory 
 provisions, — a question upon which there are distinctions 
 
 1 Thompson v. Gordon, 72 Ala. 455 ; Mass. 337 ; Miller v. Kendig, 55 Iowa, 
 Palmer v. Albee, 50 Iowa, 429; Moul- 174 ("reasonable amount"); Cooper u. 
 ton V. Egery, 75 Maine, 485 ; Breaid v. Hood, 26 Beav. 293, 4 Jur. N. s. 1266 
 Munger, 88 N. C. 297 ; Barnett v. Nich- ("good- will"). 
 
 ols, 56 Missis. 622 ; Goodbar v. Dunn, ' Pray v. Pierce, 7 Mass. 381, 384 ; 
 
 61 Missis. 618. Marshall ;;. Fisk, 6 Mass. 24, 32 ; Beilly 
 
 2 Ante, § 376. w.Chouquette, 18 Misso. 220; Milbourne 
 
 3 Pennington "v. Flock, 93 Ind. 378 ; v. Simpson, 2 Wils. 22 ; Thrall v. New- 
 Thomas «. Mathis, 92 Ind. 560 ; Crooks ell, 19 Vt. 202; Anderson v. Baugh- 
 V. Whitford, 47 Mich. 283 ; Tucker v. man, 7 Mich. 69 ; Gano v. Aldridge, 27 
 Field, 51 Missis. 191;. Thornburg v. Ind. 294; Edwards v. Bailey, Cowp. 
 Masten, 88 N. C. 293 ; Dorr v. School 597, 600 ; Wells v. Atkinson, 24 Minn. 
 District, 40 Ark. 237; Miller v. Mann, 161. 
 
 55 Vt. 475; American Emigrant Co. v. i" Merrill v. Melchior, 30 Missis. 516; 
 
 Clark, 62 Iowa, 182; Giier v. Puter- Crittenden w. French, 21111. 598; Ormes 
 
 baugh, 108 111. 602. v. Dauchy, 82 N. Y. 443. 
 
 * Bernstein v. Humes, 71 Ala. 260. i^ Harrington v. Kloprogge, 4 Doug. 
 ' Erouskop V. Shontz, 51 Wis. 204. 5, 2 Brod. & B. 678, note; Newman v. 
 
 * Parker ». Pettit, 14 Vroom, 512. Newman, 4 M. & S. 66. Presump- 
 ' Schreiber v. Butler, 84 Ind. 576. tion. — It will not be presumed that the 
 
 * The contract was held not to be law will be violated in carrying out a 
 void in Crawford v. Geiser Manuf. Co. contract where it can be done lawfully. 
 88 N. C. 554 ; Raymond o. Rhodes, 135 Sheffield v. Balmer, 52 Misso. 474. 
 
 153 
 
§395 
 
 IN GENERAL WITH ILLUSTBATIONS. 
 
 [book I. 
 
 not necessary to be here examined minutely.^ Then, if in 
 such a bond there is matter which the statute does not author- 
 ize, it, to render the instrument good, will be rejected as sur- 
 plusage.^ And a writing meant to be a statutory bond, yet 
 void as such for not conforming to the statute,^ may take 
 effect at the common law.* Again, — 
 
 § 394. Imperfect Deed. — Where an instrument which the 
 parties executed for a deed of land lacks the necessary seal,^ 
 or where the seal was affixed by an agent not duly authorized, 
 or where from the nature of the interest assumed to be con- 
 veyed, or from the loss of the instrument without being re- 
 corded, or from any other like cause, it cannot operate as a 
 deed, it may be construed as an agreement to convey, if there 
 is no obstacle to its going into operation as such.* The ex- 
 pression sometimes is, that it invests the grantee with an 
 equitable title.^ So, — 
 
 § 395. Sort of Deed. — If the law, as formerly, and it is 
 believed still in a part of our States, has provided deeds of 
 different sorts for the conveyance of land, — such as bargain 
 and sale, lease and release, covenant to stand seised, and the 
 like, — each for its particular sort of case, then, if in a given 
 instance the parties mistakenly employ one not available for 
 the case, or omit from it something essential to its kind, it will 
 
 1 Post, § 443 ; Gardener v. Wood- 
 year, 1 Ohio, 170; Commissioner of In- 
 Bolvents V. Way, 3 Ohio, 103; Mclntyre 
 V. White, 5 How. Missis. 298 ; Amos v. 
 AUnutt, 2 Sm. & M. 215; Common- 
 wealth V. Laub, 1 Watts & S. 261 ; 
 Yale V. Flanders, 4 Wis. 96 ; Lawton v. 
 The State, 5 Texas, 270 ; Baker v. Ha- 
 ley, 5 Greenl. 240. 
 
 2 Hall V. Gushing, 9 Pick. 395, 404 ; 
 
 United States v. , 1 Brock. 195; 
 
 Dixon V. United States, 1 Brock. 177 ; 
 Walker v. Chapman, 22 Ala. 116; 
 Woods V. The State, 10 Misso. 698; 
 Shunk V. Miller, 5 Barr, 250 ; Harper v. 
 Eowe, 55 Cal. 132. 
 
 8 Lawton v. The State, 5 Texas, 
 272. 
 
 * Lane r. Kasey, 1 Met. Ky. 410; 
 Rowlet V. Eubank, 1 Bush, 477 ; Gath- 
 
 154 
 
 wright V. Callaway, 10 Misso. 663; Hes- 
 ter V. Keith, 1 Ala. 316; Burroughs o. 
 Lowder, 8 Mass. 373; Wolfe v. Mc- 
 Clure, 79 111. 564. 
 
 6 Ante, § 111. * 
 
 « McCaleb v. Pradat, 25 Missis. 257 ; 
 Bayler v. Commonwealth, 4 Wright, Pa. 
 37; Porter v. Read, 19 Maine, 363; 
 Blight V. Banks, 6 T. B. Monr. 192; 
 Cummings v. Coe, 10 Cal. 529 ; Varick 
 V. Edwards, Hoffman, 382 ; Johnson v. 
 Houghton, 19 Ind. 359; Conrad v. 
 Schwamb, 53 Wis. 372 ; Hex v. Eidg- 
 well, 6 B. & C. 665, 9 D. & R. 678; 
 Dreutzer v. Lawrence, 58 Wis. 594 ; Ca- 
 rey V. Stafford, 3 Swanst. 427. 
 
 7 Grandin v. Hernandez, 29 Hun, 
 399 ; Jewell v. Harding, 72 Maine, 124; 
 Brinkley v. Bethel, 9 Heisk. 786. See 
 post, § 709. 
 
CHAP. XIV.] INTERPRETATION MEANING. § 398 
 
 be enforced, as a deed of any other sort which can legally take 
 effect.^ Likewise, — 
 
 § 396. other like Illustrations. — Of two deeds of the same 
 date and constituting one transaction, that will be presumed 
 to have been made first which will best support the intent.^ 
 Trees are a part of the realty which, by the Statute of Frauds, 
 can be conveyed only in writing ; but, if one sells them orally, 
 the ineffectual sale will operate, until revoked, as a license to 
 enter upon the land and carry them away.^ And a writing in 
 the form of a receipt may be construed as a bill of sale.* 
 
 § 397. The Subject — of the contract, and the nature of the' 
 transaction, should be considered ; and they will more or less 
 influence the interpretation.^ Thus, — 
 
 § 398. streets — (Present and Subsequent). — Where land 
 is conveyed under the restriction that no building shall be 
 erected thereon within a certain distance of the street, and 
 then the street is altered by public authority, the location of 
 a building, it has been held, must be governed by that of the 
 street as it was at the making of the deed.® But an agreement 
 with a city to remove the dirt and rubbish from the paved 
 streets during a specified period of years was adjudged to in- 
 clude, with the existing streets, those subsequently estab- 
 lished.'^ So a power of attorney to manage all the lands of 
 the principal extends, by interpretation, to those afterward 
 acquired.^ Perhaps the particular phraseology in these cases 
 had something to do with the interpretation, still the nature 
 of the transaction and the subject-matter entered into it like- 
 wise.^ Again, — 
 
 1 Ante, §42; Shep. Touch. 82, 83, Life Ins. Co. 85 N. Y. 317; Grant v. 
 224 ; Edwards v. Bailey, Cowp. 597, 600 ; Dabney, 19 Kan. 388 ; Kennedy v. Rich- 
 Wilkinson V. Tranmarr, Willes, 682, 2 ardson, 70 Ind. 524 ; Myers v. Gross, 59 
 Wils. 75. 111. 436. 
 
 2 Atkyns v. Horde, 1 Bur. 60, 106. « Tobey v. Moore, 130 Mass. 448. 
 » Jenkins v. Lykes, 19 Fla. 148 ; Compare with Lyall v. Edwards, 6 H. & 
 
 Carrington v. Roots, 2 M. & W. 248. N. 337. 
 
 4 Bush V. Bradford, 15 Ala. 317. ' Crocker v. Buffalo, 90 N. Y. 351. 
 
 6 Robinson v. Fiske, 25 Maine, 401 ; » Berkey v. Judd, 22 Minn. 287. 
 
 Higgins V. Wasgatt, 34 Maine, 305; 9 Compare with the doctrine as to 
 
 Phelps V. Bostwick, 22 Barb. 314; Bai- statutes extending both to the past and 
 
 ley V. Hill, 77 Va. 492 ; Pratt v. Pratt, to the future. Bishop Written Laws, 
 
 42 Mich. 174; Fenfold v. Universal §82-85 6,176. 
 
 155 
 
§ 402 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 § 399. Words of Inheritance, or not. — A deed of land will, 
 in general, convey a fee only when it runs to the grantee and 
 his " heirs." ^ This comes from technical reasons govern- 
 ing the particular subject, and from ancient usage. But with- 
 out this word an executory agreement may, and prima fade, 
 or in the absence of special facts, it does, bind the party to 
 convey a fee free from incumbrances.^ Likewise in a devise, 
 technical words of inheritance are not indispensable to pass a 
 fee.^ 
 
 § 400. Reasonable and Just. — Interpretation will lean to 
 the rendering which will make the contract reasonable and 
 just.* Thus, — 
 
 § 401. Mutual Promises — - (Dependent or Independent). — 
 Where it consists of mutual promises, the promise on the one 
 side being the consideration for that on the other,^ the con- 
 struction which renders them dependent, so that neither party 
 can sue the other unless himself ready to perform, will be pre- 
 ferred to the one making them independent, because more 
 reasonable and just.® But this rule must yield, as other rules 
 do, to the intent of the parties when it A.\i\y appears, and to 
 the nature of their agreement.' 
 
 § 402. Grammatical Construction — Punctuation. — Nor will 
 the strict grammatical construction, or the punctuation, pre- 
 
 1 Hogan V. Welcker, 14 Misso. 177 ; 340; Liddell v. Sims, 9 Sm. & M. 596; 
 Martin v. Long, 3 Misso. 391 ; Nichol- Clopton v. Bolton, 23 Missis. 78 ; Ham- 
 Bon V. Caress, 59 Ind. 39 ; Jordan v. ilton v. Thrall, 7 Neb. 210. 
 McClure, 4 Norris, Pa. 495. ' Pordage v. Cole, 1 Sannd. Wms. 
 
 2 Bodley v. Ferguson, 30 Cal. 511; ed. 319/, and the notes; McCrelish v. 
 Hughes V. Parker, 8 M. & W. 244 ; Churchman, 4 Rawle„ 26 ; Tileston v. 
 Gaule V. Bilyeau, 1 Casey, Pa. 521; Newell, 13 Mass. 406, 411; Johnson 
 Defraunce v. Brooks, 8 Watts & S. 67 ; v. Reed, 9 Mass. 78; Rowland v. Leach, 
 Bower v. Cooper, 2 Hare, 408 ; Ungley 11 Pick. 151, 154 ; Gardiner v. Corson, 
 v.. Ungley, 5 Ch. D. 887, 891. 15 Mass. 500 ; Bean v. Atwater, 4 Conn. 
 
 8 4 Kent Com. 535. 3; Todd v. Summers, 2 Grat. 167; Ev- 
 
 4 Halloway v. Lacy, 4 Humph. 468 ; ans v. Fegely, 17 Smith, Pa. 370 ; Eun- 
 
 Baron v. Placide, 7 La. An. 229 ; Bick- kle v. Johnson, 30 111. 328 ; Gillum v. 
 
 ford V. Cooper, 5 Wright, Pa. 142 ; Eoy- Dennis, 4 Ind. 417 ; Sewall v. Wilkins, 
 
 alton V. Royalton, &c. Turnpike, 14 Vt. 14 Maine, 168 ; Hutchings v. Moore, 4 
 
 311 ; Myers v. Gross, 59 111. 436. Met. Ky. 110; Kettle ». Harvey, 21 Vt. 
 
 6 Ante, § 76-79. . 301 ; Booth v. Tyson, 15 Vt. 515; Stans- 
 
 ° Mecum v. Peoria, &c. Railroad, 21 bury v. Fringer, 11 Gill & J. 149. 
 
 111. 533 ; Peques v. Mosby, 7 Sm. & M. 
 
 156 
 
CHAP. XIV.] INTERPRETATION — MEANING. § 405 
 
 vail over the evident intent.^ Still these and all other like 
 things, when they appear in the writing, may be looked to as 
 helps to the meaning.^ On this principle, — 
 
 § 403. Double Commas — may have the effect of the word 
 " ditto." 3 
 
 § 404. Meaning of the 'Words. — The language and terms 
 of the contract will be understood in the ordinary, popular 
 sense ; * unless they relate to some technical subject, — as, a 
 particular trade or science, the law, or a custom, — in which 
 case their technical meaning will be given them.^ But if, 
 from the connection, or from the subject, it is apparent that 
 the parties did not employ them so, or according to their true 
 definitions, they will receive the meaning thus shown to have 
 been intended. For example, "give " has been construed as 
 "pay" when applied to money, and "convey" when applied 
 to land.^ And " children " has been rendered, contrary to the 
 legal sense, as signifying heirs.' Indeed, in these cases, as 
 in others, the interpretation is to carry into effect the in- 
 tent of the parties, as derivable from the whole instrument 
 and the surroundings, whether they employed language accu- 
 rately or not.* 
 
 § 405. Technical or not. — Though in a particular contract 
 
 1 Morey v. Homan, 10 Vt 565 ; Net- Rogers v. Danfortb, 1 Stock. 289 ; Mc- 
 tletonu. Billings, 13 N.H.446; English Avoy v. Long, 13 111. 147; Wayne v. 
 V. McNair, 34 Ala. 40 ; White v. Smith, The General Pike, 16 Ohio, 421 ; Eaton 
 9 Casey, Pa. 186; Ewing v. Burnet, 11 v. Smith, 20 Pick. 150; EUmaker v. Ell- 
 Pet. 41; Reeves v. Topping, 1 Wend, maker, 4 Watts, 89; Robinson u. Fiske, 
 388; Hancock v. Watson, 18 Cal. 137; 25 Maine, 401. 
 
 Osborn v. Farwell, 87 111. 89. ^ Carter v. Alexander, 71 Misso. 585. 
 
 2 Leake Con. 221 ; White v. Smith, To the like effect, Jewry v. Busk, 5 
 9 Casey, Pa. 186; Willis v. Martin, 4 Taunt. 302. 
 
 T. R. 39, 65, 66 ; Wangh v. Middleton, ' Warn v. Brown, 6 Out. Pa. 347. 
 
 8 Exch. 352, 357; Bishop Written s ■Wadlington ti. Hill, 10 Sm. & M. 
 
 Laws, §78, 81. , 560; Pavey v. Burch, 3 Misso. 447; 
 
 * Steinraetz v. Versailles, &c. Turn- Marvin v. Stone, 2 Cow. 781 ; Quack- 
 pike, 57 Ind. 457, 460. enboss v. Lansing, 6 Johns. 49 ; Watch- 
 
 * Hawes v. Smith, 3 Fairf. 429 ; man i). Crook, 5 Gill & J- 239 ; Killian 
 Mansfield, &c. Railroad v. Teeder, 17 v. Harshaw, 7 Ire. 497; Shoenberger v. 
 Ohio, 385; Bradshaw v. Bradbury, 64 Hay, 4 Wright, Pa. 132 ; Foley ». Cow- 
 Misso. 334; Griffith v. Harrison, 4 T. R. gill, 5 Blackf. 18 ; Wallis v. Smith, 21 
 737, 749. ' Ch. D. 243, 257 ; De Witt v. Buckley, 
 
 5 Findley v. Findley, 11 Grat. 434; 11 Stew. Ch. 291; Cook v. Lillo. 103 
 Rindskoff o. Barrett, 14 Iowa, 101 ; IT. S 792. 
 
 157 
 
§ 409 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 technical words might be appropriate, it will be equally good 
 without them if the meaning is plain.^ 
 
 § 406. General and Specific. — Where there are general 
 and specific words and phrases, and all cannot stand together 
 in their proper significations, those of wider import will be re- 
 strained by those of narrower, and the less by the more exact. 
 This rule will be applied only when the expressions cannot 
 be otherwise reconciled, and it will always yield to the plain 
 intent of the parties.^ For example, — 
 
 § 407. Recitals. — General words may be limited by the 
 recitals.^ So, — 
 
 § 408. Description of Land conveyed. — If in a deed land 
 is described by metes and bounds, or by other visible objects, 
 they, being specific and exact, will restrain and control words 
 of general description ;* while still the courses, distances, and 
 the like will aid as they may.^ Yet this rule will not be car- 
 ried so far as to defeat the conveyance where, by the rejec- 
 tion of a call for a monument, it can be made good.® And in 
 various other instances it will yield, for no one rule is univer- 
 sally supreme.^ Again, — 
 
 § 409. General after Particular. — A clause in wider terms, 
 following a specific enumeration, will generally be restricted 
 by interpretation to things of a like sort with those enumer- 
 ated.^ But the restriction will not be applied to defeat a 
 
 1 Bamey v. Worthington, 37 N. Y. * Emery v. Fowler, 38 Maine, 99; 
 
 112; Chesapeake, &c. Canal v. Balti- Bosworth v. Sturtevant, 2 Cush. 392; 
 
 more, &c. Railroad, 4 Gill & J. 1 ; Dawes u. Prentice, 1 6 Pick. 435 ; Butler 
 
 Levering v. Levering, 13 N. H. 513; ». Widger, 7 Cow. 723; Whiting v. 
 
 Polhemus v. Heiman, 45 Cal. 573. Dewey, 15 Pick. 428; Dalton v. Rust, 
 
 '■^ Browningr. Wright, 2B. &P. 13; 22 Texas, 133; Richardson v. Chick- 
 Hesse V. Stevenson, 3 B. & P. 565; ering, 41 N. H. 380 ; Blasdell ti. Bissell, 
 Barton v. Fitzgerald, 15 East, 530; 6 Barr, 258 ; Cunningham r. Curtis, 57 
 Holmes v. Martin, 10 Ga. 503; Hey- N. H. 157. 
 
 wood V. Heywood, 42 Maine, 229 ; Field « Tyler v. Fickett, 73 Maine, 410. 
 
 V. Huston, 21 Maine, 69 ; Moore v. Grif- « White v. Luning, 93 U. S. 514 ; 
 
 fin, 22 Maine, 350; Huntington v. Ha- Miller v. Bryan, 86 N. C. 167. 
 
 vens, 5 Johns. Ch. 23 ; Herrick v. Hop- ' Hamilton v. Foster, 45 Maine, 32 ; 
 
 kins, 23 Maine, 217; Corwin o. Hood, Sawyer v. Kendall, 10 Cush. 241,246; 
 
 58 N. H 401. Bradford v. Pitts, 2 Mill, 115. 
 
 s Boyes v. Bluck, 13 C. B. 652; 8 Anonymous, LofTt, 398; Pollock 
 
 Walsh V. Trevanion, 15 Q. B. 733, 751 ; Con. 409 (referring to Rooke v. Ken- 
 
 Payler v. Homersham, 4 M. & S. 423, sington, 2 Kay & J. 753, 771, and Bulk- 
 
 425 ; Rich v. Lord, 18 Pick. 322, 325. ley v. Wilford, 8 D. & E. 549) ; Meyrick 
 
 158 
 
CHAP. XIV.] INTERPRKTATION — MEANING. § 413 
 
 larger intent ; as, if a party makes for the benefit of his cred- 
 itors an assignment wherein, after enumerating various sorts 
 of personal property, he adds " and all his personal estate 
 whatsoever," the latter clause will carry a term for years, 
 though it is not within any species named , because the ex- 
 pression is in itself wide enough, and the term is within the 
 evident intent of the instrument. ^ On the other hand, where 
 there is a power of attorney to do a particular act, followed by 
 general words, the latter are limited in their construction to 
 what is essential to the act ; for plainly the parties did not 
 contemplate more.^ 
 
 § 410. Derogation of Law. — Terms in a contract in dero- 
 gation of law — that is, establishing for the particular instance 
 a rule contrary to what the law would provide — are, like pro- 
 visions in a statute in derogation of the common law,^ con- 
 strued strictly.* For instance, — 
 
 § 411. Iiimiting Carrier's Liability. — It is SO when a common 
 carrier undertakes to limit his liability by a special agreement 
 with the party ; he can claim nothing beyond what is plainly 
 within the words.^ 
 
 § 412. Parties' Interpretation. — In a case of doubt, the in- 
 terpretation which the parties by their acts under their con- 
 tract have practically given it, will have weight, and it may 
 be controlling.^ But this rule will not be suffered to over- 
 throw the plain terms of an agreement.^ 
 
 § 413. ■Written and Printed. — If the contract is made from 
 
 ». Meyrick, 2 Tyrw. 178,2 Cromp. &J. « French v. Pearce, 8 Conn. 439; 
 
 223. Jakeway w. Barrettj 38 Vt. 316; Chi- 
 
 1 Ringer v. Cann, 3 M. & W. 343, cago v. Sheldon, 9 Wal. 50, 54 ; Farrar 
 347, 348. V. Rowly, 2 La. An. 475 ; D'Aquin v. 
 
 2 Perry v. HoU, 2 De G. F. & J. 38, 6 Barbour, 4 La. An. 441 ; Casey v. Pen- 
 Jur. N. s. 661. To the like effect, Roun- noyer, 6 La. An. 776 ; Coleman v. 
 tree ». Denson, 59 Wis. 522. Grubb, 11 Harris, Pa. 393; Hamm ». 
 
 8 Bishop Written Laws, § 119, 155. San Francisco, 17 Fed. Rep. 119 ; Cam- 
 
 * Duflef V. Boykin, 9 La. An. 295 ; den, &c. Land Co. h. Lippincott, 16 
 
 Delaware, &c. Tow-boat Co. v. Starrs, Vroom, 405. See Dunn v. Mobile 
 
 19 Smith, Pa. 36. Bank, 2 Ala. 152 ; Hutchins v. Dixon, 
 
 6 Monzell ». Railway, 1 Dillon, 531 ; 11 Md. 29. 
 Baltimore, &c. Railroad v. Brady, 32 ' Citizens Fire Ins. &c. Co. v. Doll, 
 
 Md. 333 ; Lamb «. Camden, &c. R. and 35 Md. 89 ; Bishop v. White, 68 Maine, 
 
 T. Co, 46 N. Y. 271 ; The City of Nor- 104. 
 wich, 4 Ben. 271. 
 
 169 
 
§ 415 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 a printed blank, the printed matter is as much a part of it as 
 the written.! gut ^g the printed words are general, intended 
 for any like occasion, and the written were specially selected 
 for the particular instance,^ the latter, in a case of conflict, 
 will prevail.^ Still interpretation will reconcile all where it 
 reasonably can ; * and, as a means to this end, will give greater 
 weight to the written parts than to the printed.^ In govern- 
 ment contracts, prepared on printed blanks, it has been deemed 
 important that the unchanging portions should receive a uni- 
 form construction.^ 
 
 § 414. 'Words of Party Speaking. — A rule not very im- 
 portant, but resorted to when all other means fail,^ is, that, in 
 a deed-poll, or other writing of the like sort, the words shall 
 be taken in their strict sense against the grantor, or him who 
 employs them, and liberally in favor of the other party .^ By 
 a part of the authorities, and perhaps by the better reason, on 
 a question not quite clear in principle, this rule is not appli- 
 cable to contracts subscribed by both parties, such as inden- 
 tures ; " because," in them, " the law makes each party privy 
 to the speech of the other."® But, by other authorities, the 
 rule seems to be applicable equally to them.^" There is one 
 exception ; namely, — 
 
 § 415. state or Crown. — Where the State with us, or in 
 England the Crown, is a party on the one side, and a subject 
 
 1 Wallwork v. Derby, 40 HI. 527. Wells v. Pacific Ins. Co. 44 Cal. 397 ; 
 
 2 Robertson v. French, 4 East, 130, Aurora Fire Ins. Co. v. Eddy, 49 HI. 
 136. 106 ; Winslow v. Patten, 34 Maine, 25; 
 
 » Hernandez v. Snn Mutual Ins. Co. Salisbury v. Andrews, 19 Pick. 250, 253; 
 
 6 Blatch. 317 ; American Express Co. Hoey v. Jarman, 10 Vroom, 523; Dur- 
 
 V. Pinckney, 29 111. 392; Howard Fire yea v. New York, 62 N. Y. 592 ; Eolker 
 
 Ins. Co. ». Bruner, 11 Harris, Pa. 50 ; v. Great Western Ins. Co. 4 Abb. Ap. 
 
 Chadsey v Guion, 97 N. Y. 333. 76 ; Richardson v. People, 85 111. 495 ; 
 
 * Wheeling, &c. Railroad ». Gourley, Gantz v. District of Columbia, 18 Ct. 
 
 3 Out. Pa. 171. of CI. 569 ; Teutonia Ins. Co. v. Boyls- 
 
 6 Clark V. Woodruff, 83 N. Y. 518. ton Mut. Ins. Co. 20 Fed. Eep. 148; 
 
 6 Yates V. United States, 15 Ct. of Warde v. Warde, 16 Beav. 103. 
 
 CI. 119. ' Staunford and Walsh in Browning 
 
 7 Fallcy V. Giles, 29 Ind. 114. v. Beston, 1 Plow. 131, 134 ; Say's Case, 
 
 8 Green's Case, 1 Leon. 218; Drink- 10 Mod. 40, 47 ; Met. Con. 312. 
 water v. London Assurance Corp. 2 i" 1 Chit. Con. 11th Am. ed. 136; 
 Wils. 363 ; Beeson v. Patterson, 12 Casey, Browning v. Wright, 2 B. & P. 13, 22. 
 Pa. 24 ; Bennehan v. Webb, 6 Ire. 57 ; 
 
 160 
 
CHAP. XIV.] INTEEPBETATION — MEANING. § 418 
 
 is a party on the other, the entire contract is construed more 
 strongly against the subject.^ 
 
 § 416. Made Certain. — The maxim applies in all cases, that 
 what can be made certain is certain. For example, since there 
 can be no heirs to a living person, a deed to such person's 
 "heirs" is void;^ yet there can be a good deed to those of 
 one deceased, for n6w he may have heirs who, though not 
 named, can be ascertained.^ So a conveyance to a living 
 person's " children " is effectual if he has children.* 
 
 § 417. Odious or Favored. — An important distinction in 
 statutory interpretation is between things odious and things 
 favored ; statutes creating the former sort being construed 
 strictly, the latter liberally.^ A like principle, though not 
 commonly designated |?y the same phrase, is recognized in 
 construing contracts; the court leans to what is beneficial, 
 mutual,^ and just as between the parties, and discourages 
 whatever is inequitable.^ Therefore it holds, for example, 
 forfeitures and penalties in disfavor.^ So that — 
 
 § 418. Condition or Covenant. — The court, when it reason- 
 ably can, will construe a clause as a promise or covenant, 
 rather than as a condition working a forfeiture.^ Not even 
 will it necessarily give the latter effect to the word " condi- 
 tion." ^0 And a clause which it accepts as a condition it will 
 interpret strictly, as not extending in meaning " beyond their 
 words, unless it be in some special cases." ^^ There are con- 
 ditions not within the reason of this rule, therefore variously 
 rendered, each according to its special requirements.^ 
 
 1 Canal Commissioners v. People, 5 &c. Turnpilse, 14 Vt. 311 ; Altin w. United 
 Wend. 423, 459; Tlie State v. Morgan, States, 17 Ct. of CI. 260; Parkhurst v. 
 28 La. An. 482; Attorney-General v. Smitli, Willes, 327, 332; Stadhard v. 
 Ewelme Hospital, 17 Beav. 366. Lee, 3 B. & S. 364, 9 Jur. N. s. 908. 
 
 2 Winslow V. Winslow, 52 Ind. 8. 8 Taylor v. Paterson, 9 La. An. 251. 
 
 * Siiaw V. Loud, 12 Mass. 447 ; Boone ' Crane v. Hyde Parit, 135 Mass. 147 ; 
 V. Moore, 14 Misso. 420. Sanders v. Maclean, 11 Q. B. D. 327, 
 
 * Hamilton v. Pitcher, 53 Misso. 334. 337 ; Wier v. Simmons, 55 Wis. 637 ; 
 And see Adams v. King, 16 111. 169. Duryee v. New York, 96 N. Y. 477. 
 
 * Bishop Written Laws, § 192 et w Hayne r. Cummings, 16 C. B. n. s. 
 seq. 421; Dunlap v. Mobley, 71 Ala. 102; 
 
 6 Bangor Tumace Co. v. Magill, 108 Shep. Touch. 122. 
 
 Dl. 656. " Shep. Touch. 133. 
 
 ' Ante, § 400 ; Boyalton v. Royalton, ^ Kellam v. McKinstry, 69 N. Y. 264 ; 
 
 11 161 
 
§ 421 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 III. Precedence of the Mules. 
 
 § 419. Nature of Question — Practical Skill. — The books 
 afford little instruction on the subject of this sub-title. Yet 
 they teach us the obvious truths, that not all the cases require 
 rules,^ that not every rule is applicable' in every case calling 
 for rules ; and that, in a particular instance, one only may 
 suffice, or sejreral may be applied together. Likewise obser- 
 vation shows us, that there is no absolute order of precedence 
 among them, yet in a modified sense there is something like 
 such order. The question is mainly one of practical, judicial 
 skill in the interpreter. Gladly would the author impart this 
 skill, but it must come chiefly from a Higher Power and from 
 study and practice. To illustrate, — 
 
 § 420. Following the Intent. — The rule of following the 
 intent of the parties, to which is assigned the highest place,^ 
 is, while in one aspect superior to all, in another inferior to a 
 part of the rest. Thus, if such intent " be apparently against 
 law, then the construction shall not apply the deed to their 
 intent ; as, if one give land to another and his heirs for twenty 
 years, in this case the executor, and not the heir, shall have 
 this land after the death of him to whom it is given." For 
 the estate thus created is personalty; which, by the law, 
 vests in the executor and not the heir.* Moreover, this ap- 
 parently superior rule is limited by the rules which exclude 
 oral evidence of what has been -reduced to writing, and hold 
 the parties to mean that to which they have subscribed their 
 names. 
 
 § 421. Other llluBtrations. — The rule which interprets the 
 language against the party speaking, is, by its terms, an infe- 
 rior one ; * and still more inferior is that, if it is a rule, which 
 gives preference to the later words in the same instru- 
 ment.^ It is certain that these two rules, and various others, 
 
 Dix V. Atkins, 130 Mass. 171 ; Winona 2 Ante, § 380. 
 
 I). Minnesota Railw. Constr. Co. 27 Minn. » Shep. Touch, 86. 
 
 415; Cooper v. McKee, 53 Iowa, 239. * Ante, § 414. 
 
 1 Ante, § 379. 5 Ante, § 389. 
 162 
 
CHAP. XIV.] INTERPRETATION — MEANING. § 426 
 
 — as, for example, the one which limits general words by 
 specific,^ — stand in all cases subordinate to the one of fol- 
 lowing the intent.^ Other illustrations are given in connec- 
 tion with the rules themselves. Not pausing longer on these 
 questions, we proceed to the — 
 
 § 422. Supreme Rule. — For this sub-title the supreme rule 
 is, that the interpreter shall inform himself of the legal doc- 
 trines connected with the subject of the particular contract, 
 and with the rules for the interpretation of contracts ; then, 
 in applying the rules, that he shall suffer those adapted to 
 influence the question to exert, each what his judgment 
 teaches to be its proper force, and all so to operate together, 
 with the precedence of the one over the other which he 
 deems to be due in the particular instance, as to work out 
 the result which best satisfies his understanding. 
 
 § 423. Finally, — it is believed that anything more specific 
 under this sub-title is not in its nature attainable, and that 
 to attempt it would be only to mislead. 
 
 IV. Further Explanations. 
 
 § 424. In Parts, differing. — If a contract is made in dupli- 
 cate, — for example, if it is an indenture, — neither part is to 
 be preferred over the other,^ unless the parties have treated 
 the one, rather than the other, as expressing their true mean- 
 ing.* Then, should the parts differ, construction will, if it 
 can, reconcile them or determine which embodies the correct 
 reading ; ^ but, if it finds this impossible, it will hold all void 
 for the uncertainty.® 
 
 § 425. ImpUoations — from the stipulations in contracts are 
 considered in another chapter.^ 
 
 § 426. Specialty and Parol 'Written, compared — (Parties). — 
 Words signify the same in sealed and unsealed contracts ; 
 
 1 Ante, § 406. * Wynne's Case, Law Kep. 8 Ch. Ap. 
 
 2 Emigrant Indus. Sav. Bank v. 1002. 
 
 Roche, 93 N. Y. 374; Toot v. Mlna. « Munson u. Osborn, supra ; Bnrchell 
 
 Life Ins. Co. 61 N. Y. 571. v. Clark, 2 C. P. D. 88. 
 
 3 Munson v. Osborn, 10 Bradw. * Wynne's Case, supra. 
 508. ' Ante, § 239 et seq. 
 
 163 
 
§ 427 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 " for," adds Lord EUenborough, " the same intention must be 
 collected from " them in the one case as in the other.^ Still 
 there is, in England and a part of our States, a difference 
 much worn away in other States, as to the consequences of 
 the provisions. Thus, in various circumstances, persons to 
 be benefited by a contract not under seal, j^et not otherwise 
 parties, may be parties to an action thereon.^ But only those 
 who are parties on the face of a specialty can sue or be sued 
 upon it ; not even can persons named in it as beneficially in- 
 terested,^ or an undisclosed principal whose authorized agent 
 had sealed an agreement really in his behalf.* Such is the 
 general doctrine, in some degree qualified by different courts.^ 
 It does not, for example, extend in all its strictness to a deed- 
 poll,® upon which often one not otherwise than descriptively 
 named may sue.^ Likewise signing and sealing a writing 
 may make one a party to it, though his name does not other- 
 wise appear therein.^ And, in some of our States, specialties 
 seem to follow, in the foregoing particulars, the rules govern- 
 ing simple contracts ; as, for example, in permitting one 
 beneficially interested to maintain a suit at law thereon.^ 
 
 § 427. Law and Equity, compared. — The meaning of a 
 contract cannot vary with the tribunal. Hence the inter- 
 pretation is the same in courts of law and in those of equity.^" 
 
 1 Seddon v. Senate, 13 East, 63, 74. * Borcherling v. Katz, 10 Stew. Ch. 
 See Southwell v. Bowditch, 1 C. P. D. 150 ; Mahoney v. McLean, 26 Minn. 
 374. 415. 
 
 2 See, for example, Welch v. Good- ^ For illustration, Gandy v. Gandy, 
 win, 123 Mass. 71 ; Nave v. Lebanon 30 Ch. D. 57 ; post, § 427. 
 
 Bank, 87 Ind. 204; George v. Tate, 102 ^ Leake Con. 445. 
 
 U.S. 564; post, §1219. 7 Sunderland Marine Ins. Co. v. 
 
 8 Salter v. Kidgly, Garth. 76, 77 ; Col- Kearney, 16 Q. B. 925, 937, 938, 15 Jur. 
 
 year w. Mulgrave, 2 Keen, 81 ; Chester- 1006; Seymour v. Western Eailroad, 
 
 field, &c. Co. V. Hawkins, 3 H. & C. 677, 106 U. S. 320 ; Barkley v. Tarrant, 20 
 
 11 Jur. N. s. 468 ; Gardner v. Lachlan, S. C. 574. 
 
 8 Sim. 123; Barford v. Stuckey, 8 8 Howell i>. Parsons, 89 N. C. 230; 
 
 Moore, 88, 1 Bing. 225 ; Hornbeck v. State Lunatic Asylum v. Douglas, 77 
 
 Westbrook, 9 Johns. 73 ; Heath v. Greg- Misso. 647 ; Grimmet v. Henderson, 66 
 
 ory, 1 Jones, N. C. 417 ; Berkeley v. Ala. 521, 525 ; Elliot v. Sleeper, 2 N. H. 
 
 Hardy, 5 B. & C. 355, 359 ; Sandusky 525. 
 
 V. Neal, 2 Bradw. 624 ; Quigley v. De ' Emmitt v. Brophy, 42 Ohio State, 
 
 Haas, 1 Norris, Pa. 267; Gautzert w. 82; Bassett «. Hughes, 43 Wis. 319. 
 
 Hoge, 73 111. 30 ; Stoier v. Gordon, 3 i° Hotham v. East India Co. 1 Doug. 
 
 M. & S. 308, 322. 272, 277. 
 
 164 
 
CHAP. XIV.] INTERPRETATION — MEANING. § 428 
 
 There are apparent exceptions ; ^ but reflection will show- 
 that, in the main or altogether, they come from differences of 
 practice or jurisdiction. Thus, a cestui que trust under a 
 sealed instrument may, contrary to the rule at law as stated 
 in the last section, maintain thereon a suit in equity .^ But 
 this difference and some others which will occur to the reader 
 do not, in a just view, pertain to the interpretation. 
 
 § 428. The Doctrine of this Chapter restated. 
 
 All language consists of words the meanings whereof vary 
 with their connections, with their subject, and with other 
 things. Without such flexibility, not even Infinite Wisdom 
 could construct a language sufficiently voluminous, yet com- 
 prehensible by man, to convey his ever-changing and still 
 progressing thoughts. Only by taking advantage of this ele- 
 ment in language, is any new idea or fresh form of thought 
 expressed. So that the diversities of meanings are, not only 
 beneficial, but absolutely essential to human progress. In the 
 law, a few words have one unvarying signification when em- 
 ployed as a vehicle for legal ideas, but this is rather the 
 exception than the rule. Now, — 
 
 We have here the key to all verbal interpretation of con- 
 tracts. The interpreter, seeking to ascertain what the parties 
 meant, does not to any great extent proceed on technical 
 grounds ; but, pressing into service his knowledge of the 
 nature of language in general and of the particular language, 
 and employing as helps the rules which his predecessors 
 have found efficient, he endeavors to ascertain the meanings 
 which good sense will ratify as just. The rule which seems 
 most nearly technical is, that written words are not to be 
 expanded or qualified by any oral expressions ; but the intent 
 of the parties is to be drawn from them alone, examined in 
 connection with the surroundings, the subject, and the laws 
 of the language. Some of the other rules are commonly 
 deemed technical, yet mostly to a less degree. They need 
 not be here repeated. 
 
 1 Pollock Con. 441 et 69C[. " Gandy v. Gandy, 30 Ch. D. 57. 
 
 165 
 
§ 431 IN GENERAL WITH ILLUSTRATIONS. [BOOK L 
 
 CHAPTER XV. 
 
 THE INTEEPEETATION OP THE CONTRACT AS TO ITS 
 EFFECT. 
 
 § 429. Elsewhere — Here. — In the next chapter we shall 
 consider how law, custom, and usage mingle with the terms 
 of a contract, enlarging, qualifying, and limiting them. In a 
 chapter further on we shall see how the law interposes to 
 prevent the taking effect of any agreement contrary to its 
 rules or its policy. The purpose of this chapter, which in 
 subject is analogous to the others, is, in a sort of prelimi- 
 nary way, to contemplate the effect given by the law to 
 the undertakings of the parties. No full exposition will be 
 attempted. 
 
 § 430. In General. — The law has its somewhat varying 
 rules governing different classes of parties, different classes 
 and subjects of contract, and different tribunals; therefore 
 the effect of any agreement will depend largely upon the 
 parties, upon its subject, and whether the court is one of law 
 or of equity. Each litigated question will be determined, not 
 simply by the law in general, but by the interpreted contract 
 as thus specially applied. To illustrate, — 
 
 § 431. Promissory Note. — One executing a promissory note 
 brings himself within the law-merchant, which governs this 
 species of contract ; as, for example, he may be required to 
 pay it to any person to whom it is lawfully transferred,^ and 
 he is entitled to the customary days of grace.^ But, — 
 
 1 Fleckner v. United States Bank, 8 ^ Craft v. State Bank, 7 Ind. 219 ; 
 Wheat. 338; Guild v. Eager, 17 Mass. Wood v. Corl, 4 Met. 203. 
 615; Harlow v. Boswell, 15 111. 56; 
 Holeman v. Hobson, 8 Humph. 127. 
 
 166 
 
CHAP. XV.] INTERPBETATION — EFFECT. § 435 
 
 § 432. Common Carrier. ^ If a common carrier, in words 
 corresponding to those of a promissory note, undertakes to 
 deliver to the order of another a package of merchandise, he 
 incurs a different sort of liability. No days of grace are per- 
 mitted him, but the work must be promptly done ; ^ and any 
 right of action against him is, not in one to whom his promise 
 has been assigned, but in the consignor, or consignee, or person 
 acting for the one or the other, as determined by the princi- 
 ples governing ordinary contracts.^ His obligations are fixed 
 by the law applicable to him.^ Thus, he is an insurer of the 
 goods against fire, thefts, and all casualties not proceeding 
 from the act of God or the public enemy, though not a word 
 on the subject has passed between him and the owner.* In 
 like manner, — 
 
 § 433. Insurance. • — A policy of insurance, especially of 
 marine insurance, is but an imperfect guide to the real con- 
 tract. Very much depends on usage, and on rules of law 
 special to this species of agreement.^ So, — 
 
 § 434. Law or Equity — (Damages or Specific Perform- 
 ance). — One who seeks redress for the breach of a contract 
 can, in a court of law, recover only money damages ; ® but, in 
 various circumstances, a court of equity wiU compel the de- 
 fendant to do the particular thing which he had promised.^ 
 Again, — 
 
 § 435. Executors. — If, after one has entered into a con- 
 tract, he dies, the law transmits his interest therein to his 
 
 1 Scovill V. Griffith, 2 Kern. 509, 515 ; » Thurman v. Wells, 18 Barb. 500 ; 
 Price V. Hartshorn, 44 Barb. 655 ; Smith Hooper v. Wells, 27 Cal. 11. 
 
 V. Whitman, 13 Misso. 352; Nettles v. * 2 Kent Com. 597 ; Graff y. Bloomer, 
 South Carolina Railroad, 7 Rich. 190; 9 Barr, 114; Klauber v. American Ex- 
 Cleveland, &IC. Railroad v. Perkins, 17 press, 21 Wis. 21 ; Joyce v. Kennard, 
 Mich. 296 ; Philleo v. Sanford, 17 Texas, Law Rep. 7 Q. B. 78. 
 227. ' See, for example, Rankin v. Potter, 
 
 2 Sanford y. Housatonic Railroad, 11 Law Rep. 6 H. L. 83, 101, 110, 155; 
 Cush. 155 ; Price v. Powell, 3 Comst. Parkhurst v. Gloucester Mutual Fishing 
 322; Stimpson v. Gilchrist, 1 Greenl. Ins. Co. 100 Mass. 301. 
 
 202 ; D'Anjon v. Deagle, 3 Har. & J. « 1 Story Eq. § 714 ; 1 Pars. Con. 
 
 206; Elkins v. Boston, &c. Railroad, 19 490; Leake Con. 1043. 
 N. H. 337 ; Green v. Clark, 13 Barb. ' 1 Story Eq. § 712 et seq. ; 2 Kent 
 
 57. Com. 487, note. 
 
 167 
 
§ 437 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 executor or administrator who, therefore, though not named, 
 may sue thereon.^ 
 
 § 436. Procedure. — The varying course of judicial proced- 
 ure furnishes numerous illustrations of the effect of the law 
 upon a contract. Practically a party is bound simply to the 
 extent to which the law will compel him. It is sufficient in 
 this place that the reader's attention is directed to the topic ; 
 ample illustrations will appear in other connections, in this 
 and other books. 
 
 § 437. The Doctrine of this Chapter restated. 
 
 The law has its own rules for the guidance of people. It 
 permits them, not absolutely, but within defined limits, to 
 provide by contract differing and additional ones. These and 
 the rules of law operate together in determining the rights 
 and responsibilities of the parties, and the consequences of the 
 violation of duties thus assumed. Hence not unfrequently 
 the effect of a contract differs considerably from what would 
 be supposed by one unacquainted with the law. 
 
 1 Ernes V. Hancock, 2 Atk. 507 ; Darthez v. Winter, 2 Sim. & S. 536. 
 168 
 
CHAP. XVI.] LAW, CUSTOM, USAGE. § 441 
 
 CHAPTER XVI. 
 
 LAW, CUSTOM, AND USAGE AS ELEMENTS IN THE CONTEACT. 
 
 § 438. Introduction. 
 439-443. Law an Element. 
 444-448. Nature of Custom and Usage. 
 449-459. Their Effect in a Contract. 
 460. Doctrine of Chapter restated. 
 
 § 438. How Chapter divided. — We shall consider, I. The 
 Law as an Element ; II. The Nature of Custom and Usage ; 
 III. Their Effect in a Contract. 
 
 I. The Law as an Element. 
 
 § 439. Law as Part of Contract. — It is but following up 
 the doctrine of the last chapter to say, that the law is to be 
 deemed a part of every contract ; that is, ordinarily, the law 
 as it exists at the time and place of the making.^ Thus, — 
 
 § 440. Partnership. — Whenever the court construes a con- 
 tract to create a partnership between the parties, it will apply 
 the law of partnership to questions not settled by its terms.^ 
 Now, — 
 
 § 441. Limitations. — While the doctrine is commonly stated 
 thus broadly in the books, and while in the main it is certainly 
 so, it is believed to have some, though not extensive, limita- 
 
 1 Webster v. Eees, 23 Iowa, 269 ; surance Co. 96 U. S. 627 ; Banks v. De 
 
 Clark V. Pinney, 7 Cow. 681 ; Rogers v. Witt, 42 Ohio State, 263. 
 Allen, 47 N. H. 529 ; The State v. AUis, « Ludlow v. Cooper, 4 Ohio State, 1 ; 
 
 18 Ark. 269 ; Roberts v. Cocke, 28 Grat. Livingston v. Cox, 6 Barr, 360 ; Kramer 
 
 207; Van Schoonhoven v. Curley, 86 v. Arthurs, 7 Barr, 165; Honore v. 
 
 N. T. 187; O'Kelly v. Williams, 84 Colmesnil, 1 J. J. Mar. 506; Allen v. 
 
 N. C. 281 ; Elliot v. Northeastern Rail- Davis, 13 Ark. 28. 
 way, 10 H. L. Cas. 333; Brine v. In- 
 
 169 
 
§ 443 IN GENERAL WITH ILLUSTRATIONS. [bOOK" I. 
 
 tions,^ into which we need not particularly in this place in- 
 quire. There are statutory changes which may operate even 
 on the expressed terms of a contract ; as, for example, where 
 a landowner had covenanted that neither he nor his assigns 
 would build on certain land, then, a statute authorizing, a 
 railway company took it, whereupon he assigned it to the 
 company, this statutory act of the law was held to have dis- 
 charged him from his covenant.^ On the other hand, under 
 our written constitutions, rights which in any manner have 
 vested cannot thus be taken away.^ 
 
 § 442. Law's Channels. — The doctrine that the law con- 
 stitutes a part of the contract explains why it is, that no stip- 
 ulations of parties can cause their rights to flow otherwise 
 than in the channels of the law. For example, a freehold in 
 lands cannot be granted to commence in futuro ; * no estate 
 or fund can be created to be perpetually inalienable;^ and 
 one cannot sell what he neither actually nor potentially has.^ 
 Illustrations of this principle might be multiplied indefinitely. 
 
 § 443. Under Statute. — As already seen,'' a bond or other 
 contract provided for by statute should in substance, or so far 
 as not to defeat the purpose of the legislature, conform to the 
 statutory terms.^ Especially will a material omission render 
 the contract void.^ Yet it may be good while departing in a 
 less degree from the words of the enactment ; ^^ even a bond 
 with one surety has been held to be valid where the statute 
 (construed to be directory i^) requires two.^^ 
 
 1 See, for some illustrations, 2 Bishop ders «. Rives, 3 Stew. 109 ; Hall ». 
 
 Mar. "Women, § 565-573. Gushing, 9 Pick. 395,404; The State a. 
 
 "^ Baily v. De Crespigny, Law Bep. Bright, 14 S. C. 7. 
 
 4 Q. B. 180. ' Dixon v. United States, 1 Brock. 
 
 s Bishop Written Laws, § 85 a, 175. 177 ; United States v. Gordon, 1 Brock. 
 
 4 Met. Con. 306; Stukeley i>. Butler, 190, 7 Cranch, 287; United States v. 
 
 Hob. 168 ; Hawes v. Stebbins, 49 Cal. Morgan, 3 Wash. C. C. 10. 
 
 369. 1" Van Deusen v. Hay ward, 17 Wend. 
 
 « 4 Kent Com. 271 ; Bates v. Bates, 67 ; Ring v. Gibbs, 26 Wend. 502 ; Smitli 
 
 134 Mass. 1 10 ; In re Macleay, Law Rep. v. Taylor, 56 Ga. 292. 
 
 20 Eq. 186, 190; Mott v. Ackerman, 92 " Bishop Written Laws, § 255. 
 
 N. Y. 539; Hershy v. Clark, 35 Ark. 12 People v. Johr, 22 Mich. 461. 
 
 17. Contra, Cutler v. Roberts, 7 Neb. 4. 
 
 6 Grantham v. Hawley, Hob. 132. And see Gregory v. Cameron, 7 Neb. 
 
 "> Ante, § 393. 414. The addition of a surety not re- 
 
 8 Nunn V. Goodlett, 5 Eng. 89 ; San- quired by the statute does not render 
 170 
 
CHAP. XVI.] LAW, CUSTOM, USAGE. § 446 
 
 II. The Nature of Custom and Usage. 
 
 §444. "Custom," "Usage," "Prescription." — In the English 
 books, particularly the older ones, there are distinctions be- 
 tween these words, not necessary to be minutely considered in 
 this connection.^ " Custom," in its more technical sense, is a 
 usage so long continued " that the memory of man runneth 
 not to the contrary." ^ But our country is too recently settled 
 to have customs strictly within this definition.^ And in our 
 books the term is often employed as a synonyme of " usage." * 
 What we are here particularly considering is any established 
 course of things which, while not ripened into law, may have 
 entered as an element into a contract. It may be, but it 
 is not necessarily, ancient; still the term of its duration is 
 commonly important, particularly on the question of its having 
 been known to the parties.® Yet, — 
 
 § 445. Custom as Law. — When any custom has become 
 general throughout the State, among all classes of people, 
 the courts take judicial cognizance of it ; for, in the words of 
 Caton, C. J., they " will not pretend to be more ignorant 
 than the rest of mankind." ® It is now, therefore, a part of 
 the common law of the State ; and ceases to be termed, in 
 ordinary legal language, custom.'^ 
 
 § 446. Custom as Usage — Distinguished from Law. — The 
 leading distinction between custom, considered as usage, and 
 
 the instrament void. Jenkins v. Lock- ^ Porter v. Hills, 114 Mass. 106; 
 
 ard, 66 Ala. 377. Ober v. Carson, 62 Misso. 209 ; "Wilson 
 
 1 And see Lowry v. Kead, 3 Brews, v. Baaman, 80 111. 493 ; Ocean Beach 
 452. Assoc. V. Brinley, 7 Stew. Ch. 438; 
 
 2 1 Bl. Com. 76 ; Ocean Beach Assoc. Townsend v. Whitby, 5 Harring. Del. 
 V. Brinley, 7 Stew. Ch. 438 ; Knowles v. 55. 
 
 Dow, 2 Fost. N. H. 387, e Munn v. Burch, 25 111. 35, 38. 
 
 3 Ocean Beach Assoc, v. Brinley, ' Wrotesley v. Adams, 1 Plow. 187, 
 snpra. 195; Jones v. Thurloe, 8 Mod. 172; 
 
 * Richmond v. Union Steamboat Co. Williams v. Williams, Carth. 269 ; Co- 
 
 87 N. Y. 240, 249, Earl, J. observing, lumbia Bank v. Fitzhugh, 1 Har. & G. 
 
 "It will be seen by an examination of 239; Branch v. Burnley, 1 Call, 147, 
 
 the cases above cited, and by reference 159 ; Cook v. Eenick, 19 111. 598. See 
 
 to the elementary works, that the words Watt v. Hoch, 1 Casey, Pa. 411 ; Com- 
 
 ' usage," custom," course of trade,' are monwealth v. Mayloy, 7 Smith, Pa. 
 
 used interchangeably." And see Bishop 291. 
 
 Written Laws, § 150. 
 
 171 
 
§ 449 IN GENERAL WITH ILLUSTEATIONS. . [BOOK I. 
 
 law is, that the former is restricted to a particular locality, 
 or class of persons, or business, while the latter is universal 
 throughout the State.^ What pertains to a city or neighbor- 
 hood only, and is general there, is in effect law in such place,^ 
 yet it is not taken judicial cognizance of by the courts, so it 
 must be proved, and it retains the name of custom.* 
 
 § 447. Usage between Parties. — A usage between the 
 parties to a contract, not extending to any particular locality 
 or business, or to other persons, is the most limited sort of 
 usage which we are here to consider.* Hence — 
 
 § 448. Varieties. — The sorts of usage are varying. StUl, 
 in their effects on a contract, they depend on common princi- 
 ples. We shall see more of them in the next sub-title. 
 
 III. The Effect of Custom or Usage in a Contract. 
 
 § 449. Defined. — The doctrine of this sub-title is that, if, 
 when and where a contract is made, there is a custom or usage 
 applicable to it and known to both the parties, either in fact, 
 or presumptively from its long continuance, notorious char- 
 acter, or otherwise, — if it is not in conflict with the law or 
 its policy, — if it is reasonable, and, as to the place, business, 
 or persons, uniform and universal, — it will be accepted, like 
 the general law, not in contradiction of written stipulations, 
 but as explaining v^hat is indistinct in them, and furnishing 
 the rule where they are silent.^ There are illustrations of 
 this doctrine in the last chapter. Further to particularize, — 
 
 1 3 Salk. 112; Millar v. Taylor, 4 ^ Macomber v. Parker, 13 Pick. 175, 
 Bur. 2303, 2395. 182; Columbia Bank i>. Fitzhugh, 1 
 
 2 Commonwealtli I). Mayloy, 7 Smith, Har. & G. 239; Walsh v. Mississippi 
 Pa. 291. Valley Transp. Co. 52 Misso. 434; 
 
 s 1 Saund. PI. & Et. 3d Am.ed. 399 ; Southwestern Freight, &c. Co. v. Stan- 
 Scales V. Key, 11 A. & E. 819; Griffin ard, 44 Misso. 71 ; Chenery «. Good- 
 V. Blandford, Cowp. 62 ; Parkin v. Bad- rich, 106 Mass. 566 ; Haskins v. Warren, 
 cliffe, 1 B. &P. 282: Winton w. Wilks, 115 Mass. 514; Mears v. Waples, 4 
 2 Ld. Kaym. 1129, 1134, 1135; Kings- Houst. 62; Butterworth v. Volkening, 
 mill V. Bull, 9 East, 185; Leuckart v. 4 Thomp. & C. 650; McMastere «. 
 Cooper, 7 Car. & P. 119. But see Watt Pennsylvania Railroad, 19 Smith, Pa. 
 V. Hoch, 1 Casey, Pa. 411. 374; Appleman v. Fisher, 34 Md. 640; 
 
 * Norris v. Fowler, 87 N. C. 9 ; Luce v. Dorchester Mutual Fire Ins. Co. 
 
 Thompson v. Matthews, 56 Missis. 368. 105 Mass. 297 ; Sullivan v. Thompson, 
 172 
 
CHAP. XVI.] 
 
 LAW, CUSTOM, USAGE. 
 
 §453 
 
 § 450. Proved. — The party relying on a custom or usage 
 must prove it to the jury, like any other fact.^ And — 
 
 § 451. Kjiown. — He must show, either by direct evidence 
 or by presumption, that it was known to the other party .^ 
 But if, for example, it relates to a particular trade, it is pre- 
 sumed to have been known to all persons engaged therein.^ 
 
 § 452. Uniform and Universal — (Definite, Distinct). — It 
 must be uniform and, within its proper limits, which are some- 
 times very narrow, universal.* And it must be definite and 
 distinct.^ 
 
 § 453. Not Contrary to Law — It is not competent for a 
 custom or usage, of the sort contemplated in this chapter, to 
 change the law ; or, in other words, to establish a rule con- 
 trary thereto,® — a proposition which the reader should be 
 careful not to misconstrue. Again, — 
 
 99 Mass. 259 ; Boardman v. Spooner, 13 
 Allen, 353 ; Eaton v. Smith, 20 Pick. 
 150, 156 ; Hursh v. North, 4 Wright, 
 Pa. 241 ; Thomas v. Graves, 1 Mill, 308; 
 Dixon V. Dunham, 14 Dl. 324 ;,Leach 
 V. Beardslee, 22 Conn. 404; Shaw u. 
 Mitchell, 2 Met. 65 ; Cooper v. Kane, 
 19 Wend. 386; Holford v. Adams, 2 
 Duer, 471 ; Dodd v. Farlow, 11 Allen, 
 426 ; Tremble v. Crowell, 17 Mich. 493 ; 
 Strong V. Grand Trunk Railroad, 15 
 Mich. 206; Hinton v. Locke, 5 Hill, 
 N. Y. 437 ; Jordan v. Meredith, 3 Yeates, 
 318; Alabama, &c. Railroad v. Kidd, 29 
 Ala. 221 ; Burton v. Blin, 23 Vt. 151 ; 
 Chapman v. Derereux, 32 Vt. 616 ; 
 Knox V. Artman, 3 Rich. 283 ; Holmes 
 V.Johnson, 6 Wright, Pa. 159; Greene 
 V. Tyler, 3 Wright, Pa. 361 ; Cadwell v. 
 Meek, 17 HI. 220 ; Renner v. Columbia 
 Bank, 9 Wheat. 581 ; Perkins v. Jordan, 
 35 Maine, 23; Van Ness v. Pacard, 2 
 Pet. 137, 148 ; Gordon v. Little, 8 S. & 
 R. 533; Lee v. Kilburn, 3 Gray, 594; 
 Soulier v. Kellerman, 18 Misso. 509; 
 Munn V. Burch, 25 111. 35; Power v. 
 Kane, 5 Wis. 265 ; Rindskofi v. Barrett, 
 14 Iowa, 101 ; Sanderson v. Columbian 
 Ins. Co. 2 Cranch C. C. 218. 
 
 1 Ante, § 446; 2 Greenl. Ev. § 251, 
 252 ; Hall v. Benson, 7 Car. & P. 711 ; 
 
 The Sultan v. Three Thousand Empty 
 Oil Barrels, 15 Fed. Rep. 618 ; Marye v. 
 Strouse, 6 Saw. 204; Jones v. Hoey, 
 128 Mass. 585, 587 ; Willcuts v. North- 
 western Mut. Life Ins. Co. 81 Ind. 300 ; 
 Girard Life Ins. &c. Co. v. Mutual Life 
 Ins. Co. 13 Philad. 90. 
 
 2 Sawtelle v. Drew, 122 Mass. 228 ; 
 Boardman v. Gaillard, 3 Thomp. & C. 
 695, 1 Hun, 217 ; The Innocenta, 10 
 Ben. 410; Randall v. Smith, 63 Maine, 
 105; Central Railroad «. Anderson, 58 
 Ga. 393; Murray v. Brooks, 41 Iowa, 
 45; Janney v. Boyd, 30 Minn. 319; 
 Taylor v. Mueller, 30 Minn. 343 ; Mar- 
 shall V. Perry, 67 Maine, 78. 
 
 > Carter v. Philadelphia Coal Co. 27 
 Smith, Pa. 286. And see ante, § 444. 
 
 * Scudder v. Bradbury, 106 Mass. 
 422; Porter v. Hills, 114 Mass. 106; 
 Ober V. Carson, 62 Misso. 209 ; Madden 
 V. Blain, 66 Ga. 49 ; Commonwealth v. 
 Mayloy, 7 Smith, Pa. 291; Wood v. 
 Hickok, 2 Wend. 501, 504; Branch v. 
 Palmer, 65 Ga. 210. 
 
 6 Sawtelle i;. Drew, 122 Mass. 228; 
 Paine v. Howells, 90 N. Y. 660. 
 
 8 Bishop Written Laws, § 150 ; Dick- 
 inson V. Gay, 7 Allen, 29 ; Hedden v. 
 Roberts, 134 Mass. 38; Marshall v. 
 Perry, 67 Maine, 78 ; Randall v. Smith, 
 
 173 
 
§ 457 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 § 454. Or Terms of Contract. — It cannot subvert unambig- 
 uous terms in a contract, or give it a rendering antagonistic 
 to its words.^ If, for example, the undertaking is to build a 
 mahogany counter, no custom can render sufficient a structure 
 in part of stained white-wood.^ Nor wiU custom convert into 
 fulfilment the delivery of a mixture of Early Rose and other 
 varieties of potatoes on a contract to supply Early Rose.^ 
 
 § 455. Not TJnreasonable. — An unreasonable custom, or 
 one subversive of justice, or the like, is void.* 
 
 § 456. Effect on Contract. — When a custom, such as is 
 thus explained, is shown to have existed at the time of the 
 making of a contract, it is, in the absence of any indication to 
 the contrary, to be construed as though the terms of the 
 custom were written into it, constituting of it a part.^ For 
 example, one employed to do a particular thing, with nothing 
 said of payment, may recover for his services whatever he can 
 show to be customary.^ 
 
 § 457. Usage Limited to the Parties. — The foregoing rules 
 apply, not only to the more general usages, but to a course of 
 dealings simply between the parties ; the new transaction is 
 prima facie presumed to be on the same basis as the former 
 ones.^ So, — 
 
 63 Maine, 105 ; Winder t>. Blake, 4 26 ; Taylor v. Devey, 7 A. & E. 409 ; 
 
 Jones, N. C. 332 ; Bailey v. Hope Ins. Nolte v. Hill, 36 Ohio State, 186 ; Freary 
 
 Co. 56 Maine, 474 ; McCrary v. McFar- v. Cooke, 14 Mass. 488. 
 land, 93 Ind. 466. ^ Sawtelle v. Drew, 122 Mass. 228 ; 
 
 1 Bank of Commerce v. Bissell, 72 Doane v. Dunham, 79 111. 131 ; Ocean 
 N. Y. 615; Mnlliner v. Bronson, 14 S. S. Co. v. McAlpin, 69 Ga. 437; 
 Bradw. 355 ; Stebbins v. Brown, 65 Florence Machine Co. v. Daggett, 135 
 Barb. 274; Marks v. Cass County Mill, Mass. 582 ; Castleman v. Southern Mat. 
 &c. Co. 43 Iowa, 146; Larkin D.Mitchell, Life Ins. Co. 14 Bush, 197; Lacy ». 
 &c. Lumber Co. 42 Mich. 296 ; Gibney Green, 3 Norris, Pa. 514 ; Walker ». 
 V. Curtis, 61 Md. 192, 201, where it is Armstrong, 54 Texas, 609 ; Mand v. 
 observed : " Usage may be admissible to Trail, 92 Ind. 521 ; Henkel v. Welsh, 41 
 explain what is doubtful, but never to Mich. 664. 
 
 contradict what is plain." 6 Thompson v. Boyle, 4 Norris, Pa. 
 
 2 Greenstine v. Borchard, 50 Mich. 477 ; Beg. v. Doutre, 9 Ap. Cas. 745 ; 
 434. See Bixby v, Wilkinson, 25 Minn. Lyon v. George, 44 Md. 295. 
 
 481. 7 Hall V. Steel, 68 111. 231; Dillard 
 
 8 Woods w. Miller, 55 Iowa, 168, r. Paton, 19 Fed. Eep. 619 ; Whitworth 
 
 172. V. Erie Railway, 87 N. Y. 413 ; Thomp- 
 
 * Wilkes V. Broadbent, 1 Wils. 63, son v. Matthews, 56 Missis. 368. 
 
 2 Stra. 1224 ; Rogers v. Brenton, 10 Q. B. 
 
 174 
 
CHAP. XVI.] LAW, CUSTOM, USAGE. § 460 
 
 § 458. Usage of One Party. — Even if one party only, con- 
 ducting a particular business, has a uniform usage therein, it 
 may be presumed to have entered into a contract with another 
 who knew it ; but such knowledge must appear, either from 
 direct testimony or from adequate notoriety.^ The usage, 
 like any other, must be reasonable.^ 
 
 § 459. In General. — The illustrations of the foregoing 
 doctrines are limitless ; the reader can find them in the cases 
 cited in the notes, or by consulting the digests. It is believed 
 that a fuller exposition here would be less profitable to him 
 than to reserve our space for other topics. 
 
 § 460. The Doctrine of this Chapter restated. 
 
 Law is the atmosphere of associated life, without which it 
 cannot exist. It surrounds and pervades all, furnishing the 
 rule for. all transactions. Where parties wish to be gov- 
 erned by a different or additional rule, or to render that of 
 the law distinct and certain, they enter into a contract. And 
 it is permissible for them, though with limitations and restric- 
 tions, thus to vary or render more distinct the rule of the law. 
 Still as to particulars on which they are silent, the law's rule 
 prevails ; and, where they speak, it mingles with their lan- 
 guage, qualifying, contracting, and expanding it by its inter- 
 pretations. This consequence they are presumed to intend. 
 Also a usage, or custom, is a law of the particular place or 
 business. Hence, in forming a contract, the parties become 
 by implication bound by it, the same as by the general law. 
 Yet no custom, usage, or other law wiU overturn an express 
 stipulation of a sort which the courts hold to be valid. Should 
 the law allow this, it would contradict itself. 
 
 1 Western Union Tel. Co. v. Bn- Anderson, 58 Ga. 393 ; Berkshire "Wool- 
 chanan, 3.5 Ind. 429; Mobile, &c. Rail- len Co. v. Proctor, 7 Cush. 417 ; Steel 
 way V. Jay, 61 Ala. 247 ; Murray v. Works v. Dewey, 37 Ohio State, 242. 
 Brooks, 41 Iowa, 45 ; Norris v. Fowler, " St. Mary's Beneficial Soc. v. Bur- 
 87 N. C. 9 ; Central KaUroad, &c. Co. v. ford, 20 Smith, Pa. 321. 
 
 175 
 
§ 462 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 CHAPTER XVII. 
 
 LAW AND FACT AS TO THE PAETIES' KNOWLEDGE OE 
 IGNORANCE THEREOF. 
 
 § 461. Elsewhere — Here. — In another chapter, we shall 
 consider the effect upon the contract of Mistake.^ And the 
 question will present itself incidentally in stUl other connec- 
 tions. The purpose of this chapter is simply to bring to view, 
 as helpful in all the elucidations of our subject, a few of the 
 more general principles. 
 
 § 462. Presumption that Law is Known. — The law is ad- 
 ministered, and necessarily so, on the presumption which, 
 except in special circumstances, is conclusive, that it is known 
 by every person who dwells or transacts business in the coun- 
 try where it prevails.^ This rule, by its terms, does not con- 
 clude all persons to know a foreign law.^ The exceptions 
 are principally such as have no relation to contracts ; for ex- 
 ample (a proposition on its face singular), it appears that a 
 judicial person, who, one would think, should know the law 
 if anybody does, will be held blameless though he honestly 
 mistakes it.* Hence, — 
 
 1 Post, § 693 et seq. tesque. " As to the certainty of the 
 
 2 1 Bishop Grim. Law, § 294 ; 2 Kent, law," said Lord Mansfield, " it would be 
 Com. 491 ; 1 Story Eq. § 111 ; Cooper very hard upon the profession if the law 
 V. Phibbs, Law Rep. 2 H. L. 149, 170; was so certain that everybody knew it ; 
 Weed V. Weed, 94 N. Y. 243, 247 ; Bil- the misfortune is, that it is so uncertain 
 bie V. Lumley, 2 East, 469, 472 ; Mid- that it costs much money to know what 
 land, &c. Railway v. Johnson, 6 H. L. it is, even in the last resort." Jones v. 
 Cas. 798, 4 Jur. N. s. 643 ; Stevens v. Randall, Cowp. 37, 40. The only apol- 
 Lynch, 12 East, 38. ogy for this doctrine is its necessity. 
 
 8 Stedman v. Davis, 93 N. Y. 32. And this apology is ample. If, in every 
 
 * 1 Bishop Crim. Law, § 299, 460, case, it was open to inquiry whether or 
 
 462 ; 2 lb. § 977. See Long v. Long, not the parties knew the law, justice 
 
 57 Iowa, 497. The doctrine of this sec- could not be administered, 
 tion is in some views of it quite gro- 
 
 176 
 
CHAP. XVII.] LAW AND FACT. § 465 
 
 § 463. Nature of Mistake — (Law or Pact). — The only sort 
 of mistake which, except as intimated in the last section, is 
 taken cognizance of in our jurisprudence, is mistake of fact. 
 The proposition that every one is conclusively presumed to 
 know the law is but another form of saying that, in legal 
 contemplation, there is and can be no such thing as mistake 
 of law. 
 
 § 464. Effect. — Mistake, therefore, is not a principle of the 
 law. It is a fact ; and it exists in some cases, in others not. 
 Like any other fact, its effect depends upon its combination 
 with associated facts, and upon the principles of law which 
 the entire case calls into action. 
 
 § 465. Defined and Explained. — A mistake which may have 
 effect in the law is any misapprehension of a relevant fact. 
 There is in the books a good deal of confusion, and to some 
 extent the decisions are contradictory, as to the consequence 
 of the mistake having been produced by what is in legal con- 
 templation impossible, ignorance of the law, and as to what 
 is to be deemed fact in distinction from law. It seems pretty 
 plainly to be a question of fact whether A or B owns a given 
 article of personal property ; ^ so that, if, for example, one 
 mistakenly deeming a thing to be his appropriates it, he 
 does not commit larceny of the thing, though all the particu- 
 lars relating to the title are known to him, and his mistake 
 results from his misapplying the law.^ And, in general terms, 
 it is a question of fact whether or not an individual is in- 
 vested with any form of right in a thing, or a contract, or 
 interpretation of a contract ; a fact being not less a fact 
 though it is the offspring of the law. Such seems to be the 
 conclusion alike of reason and of the somewhat conflicting 
 decisions ; or, at least, the better decisions.^ And there is 
 
 1 " Private right of ownership is a 325 ; Hutton v. Edgerton, 6 S. C. 485 ; 
 matter of fact." Lord Westbury in Ring v. Jamison, 2 Misso. Ap. 584 ; 
 Cooper V. Phibbs, Law Rep. 2 H. L. 149, Baddley v. Oliver, 1 Dowl. P. C. 598, 
 170. 604; Wilson v. Maryland Life Ins. Co. 
 
 2 1 Bishop Crim. Law, § 297. 60 Md. 150; Louisville v. Anderson, 79 
 8 Consult and compare, for example, Ky. 334 ; Hawkins v. Brown, 80 Ky. 
 
 Beauchamp o. Winn, Law Rep. 6 H. L. 186 ; Sparks v. Pittman, 51 Missis. 511 ; 
 
 223, 234 ; Wiggin v. Wiggin, 58 N. H. Toops v. Snyder, 70 Ind. 554. See post, 
 
 235 ; Anderson v. Soward, 40 Ohio State, § 704, 705. 
 
 12 177 
 
§ 466 IN GENERAL WITH ILLUSTRATIONS. [BOOK L 
 
 no objection to calling that a mistake of fact which is mingled 
 with, or was produced by, ignorance of the law.^ 
 
 § 466. The Doctrine of this Chapter restated. 
 
 The necessities of litigation compel the courts to assume 
 conclusively, that a party is fully and absolutely cognizant of 
 all the doctrines of the law, even those which it has the ut- 
 most difficulty in itself determining. But whether he knew 
 a fact or not is a question open to inquiry. Therefore a mis- 
 take of law is, in legal contemplation, ordinarily impossible. 
 A mistake of fact is otherwise ; but its effect will depend 
 upon the accompanying facts of the case, and upon the rules 
 of law applicable thereto. Mistake, therefore; cannot prop- 
 erly be deemed a separate branch of our jurisprudence. 
 
 1 1 Bishop Crim. Law, § 311. 
 
 1T8 
 
CHAP, XVIII.] , ILLEGAL OB OP EVIL TENDENCY. § 468 
 
 CHAPTER XVIII. 
 
 CONTKACTS ILLEGAL OE OB" EVIL TENDENCY. 
 
 § 467, 468. Introduction. 
 469^90. General Doctrine. 
 491-497. In Obstruction of Judicial Justice. 
 498-504. In Obstruction of Governmental Order. 
 505-512. Violative of Good Morals. 
 513-520. In Eestraint of Trade. 
 52l-i528. Partaking of Unlawful Conspiracy. 
 529-535. Gaming Contracts. 
 536-546. Violative of Lord's Day. 
 547, 548. Contrary to Statutes regulating Business. 
 549. Doctrine of Chapter restated. 
 
 § 467. Here — Elsewhere. — The contracts of this chapter 
 are those commonly described in the books as illegal, immoral, 
 or contrary to the policy of the law, or to public policy. The 
 law disallows them because of their illegality or their evil 
 tendency. In another chapter, we saw that only in the 
 channels of the law can the stipulations of parties be made 
 to flow ; ^ and in another, that a consideration violative of 
 the law or of sound policy is inadequate.^ In respect of par- 
 ticular contracts, the subject of this chapter will present 
 itself in various other connections. 
 
 § 468. How Chapter divided. — We shall consider, I. The 
 General Doctrine ; II. Contracts in Obstruction of Judicial 
 Justice ; III. Contracts in Obstruction of Governmental 
 Order ; IV. Contracts violative of Good Morals ; V. Con- 
 tracts in Restraint of Trade ; VI. Contracts partaking of 
 Unlawful Conspiracy ; VII. Gaming Contracts ; VIII. Con- 
 tracts violative of the Lord's Day ; IX. Contracts contrary 
 to the Statutes in Regulation of Business. 
 
 1 Ante, § 442, 443 ; post, § 474. . » Ante, § 59. 
 
 179 
 
§472 
 
 IN GENERAL WITH ILLUSTRATIONS. 
 
 [book I. 
 
 I. The General Doctrine. 
 
 § 469. Indirect Means. — The law will not suffer the ac- 
 complishment, by indirect means, of what it forbids directly .^ 
 Hence, — 
 
 § 470. Doctrine defined. — No agreement between parties 
 to do a thing prohibited by law, or subversive of any public 
 interest which the law cherishes, will be judicially enforced. 
 To explain, — 
 
 § 471. Directly forbidden. — Any act which is forbidden 
 either by the common or the statutory law — whether it is 
 malum in se, or merely malum prohibitum;^ indictable,^ or 
 only subje^ct to a penalty or forfeiture ;* or however' other- 
 wise prohibited byaT^'^tute,^ or-the common law ® — cannot 
 be the foundation of a valid contract ; nor can anything aux- 
 iliary to, or promotive of, such act.'^ ' And this doctrine is the 
 same in the equity tribunals as in those of law.^ Thus, — 
 
 § 472. Illustrations. — Wages earned by a minor forbidden 
 
 Ins. Co. V. Forsythe, 2 Ind. 483 ; Siter v. 
 Sheets, 7 Ind. 132; Ellsworth v. Mitch- 
 ell, 31 Maine, 247 ; Hall v. Mullin, 5 
 Har. & J. 190, 193; Bayley v. Taber, 5 
 Mass. 286 ; Wheeler v. Russell, 17 Mass. 
 258jJ Farrar «. Barton, 5 Mass. 395 ; 
 Roby V. West, 4 N. H. 285 ; Nourse v. 
 Pope, 13 Allen, 87 ; Solomon v. Dresoh- 
 ler, 4 Minn. 278 ; Downing ;;. Ringer, 7 
 Misso. 585 ; Carleton v. Whitcher, 5 
 N. H. 196; Brackett v. Hoyt, 9 Fost. 
 N. H. 264 ; Bell v. Quin, 2 Sandf. 146; 
 Seidenbender v. Charles, 4 S. & E. 
 151; Mitchell v. Smith, 1 Binn. 110, 
 118; Maybin v. Coulon, 4 Dall. 298; 
 Biddis V. James, 6 Binn. 321 ; Hale v. 
 Henderson, 4 Humph. 199; Elkins ». 
 Parkhurst, 17 Vt. 105 ; Spalding w. Pres- 
 ton, 21 Vt. 9 ; Terrltt u. Bartlett, 21 Vt. 
 184; Rutland Bank v. Parsons, 21 Vt. 
 199; Bancroft ». Dumas, 21 Vt. 456; 
 Armstrong v. Toler, 11 Wheat. 258; 
 Cumraings v. Saux, 30 La. An. 207. 
 
 e Ante, § 427 ; In re Cork, &c. Rail- 
 way, Law Rep. 4 Ch. Ap. 748, 762; 
 Sykes v. Beadon, 11 Ch. D. 170. 
 
 1 Booth V. Bank of England, 7 CI. 
 & F. 509, 540 ; In re Macleay, Law Hep. 
 20 Eq. 186, 189 ; Wells v. People, 71 
 111. 532. 
 
 2 Cannan v. Bryce, 3 B. & Aid. 179, 
 183, 184; White v. Buss, 3 Cush. 448, 
 450. 
 
 * Poplett V. Stockdale, Ryan & 
 Moody, N. P. 337 ; Fores u. Johnes, 4 
 Esp. 97 ; Galew. Leckie, 2 Stark. 107. 
 
 * Bartlett v. Vinor, Garth. 251 ; Fer- 
 gusson V. Norman, 5 Bing. N. C. 76, 3 
 Jur. 10. 
 
 6 Peck V. Burr, 6 Selden, 294 ; Hath- 
 away V, Moran, 44 Maine, 67 ; Lord v. 
 Chadbourne, 42 Maine, 429 ; Cook v. 
 Phillips, 56 N. Y. 310; Gaslight, &c. 
 Co. V. Turner, 8 Scott, 609, 6 Bing. 
 N. C. 324 ; Yeates v. Williams, 5 Pike, 
 684 ; Bemis v. Becker, 1 Kan. 226 ; Dil- 
 lon V. Allen, 46 Iowa, 299. 
 
 8 Carpenter v. Beer, Comb. 246 ; 
 Cope V. Rowland's, 2 M. & W. 149, 2 
 Gale, 231. 
 
 ^ Stanley v. Nelson, 28 Ala. 514; 
 Milton V. Haden, 32 Ala. 30 ; Madison 
 
 180 
 
CHAP. XVIII.] ILLEGAL OR OF EVIL TENDENCY. § 474 
 
 by a statute to be employed in the particular business,^ or by 
 a school-teacher not having the certificate of qualifications 
 which a statute provides for,^ or by a broker for services ren- 
 dered without the license ordained by a statute,^ or by any 
 one in unlicensed peddling,* the price agreed to be paid for 
 goods sold contrary to a revenue law,^ or for a fertilizer sold 
 without the inspection which a statute directs,^ or for any^ 
 thing knowingly furnished to a public enemj' or in aid of a 
 rebellion,'^ or sold for any other use which the law forbids,^ — 
 none of these and no other thing promised for what is done 
 or given to violate any regulation of law ^ can be effectually 
 sued for in a judicial tribunal. 
 
 § 473. Against Public Policy. — A contract invading any 
 one of the other interests which the law cherishes, though to 
 do what is neither indictable nor prohibited by a statute, 
 termed a contract against public policy (or sound policy), is 
 likewise void.^" Akin to public policy, if not identical with 
 it, is the — 
 
 § 474. Policy of the Law. — This term is sometimes em- 
 ployed in the same sense as public policy, and perhaps the 
 distinction between the two is not well established. It is 
 
 1 Birkett v. Chatterton, 13 E. I. 299. » Kerr v. Birnie, 25 Ark. 225 ; 
 
 2 Byau V. Dakota School Dist. 27 Thome v. Travellers Ins. Co. 30 Smith, 
 Minn. 433 ; Wells v. People, 71 111. 532. Pa. 15 ; Webb v. Brooke, 3 Taunt. 6 ; 
 
 8 Cope V. Rowlands, 2 M. & W. 149. Simpson v. Bloss, 7 Taimt. 246 ; De 
 
 * Stewartson u. Lothrop, 12 Gray, 52. Groot v. Van Duzer, 17 Wend. 170; 
 
 5 Curran v. Downs, 3 Misso. Ap. Arnol; v. Pittston, &c. Coal Co. 68 N. Y. 
 
 468; McConnell v. Kitchens, 20 S. C. 558; Capehart v. Eankin, 3 W. Va. 
 
 430; Deans v. McLendon, 30 Missis. 571; Stevens u. Perrier, 12 Kan. 297; 
 
 343. See Wetherell v. Jones, 3 B. & 'Lill v. Brant, 6 Bradw. 366. See, as to 
 
 Ad. 221 ; Brown v. Duncan, 10 B. & C. limitations of the doctrine, Warren v. 
 
 93. Manufacturers Ins. Co. 13 Pick. 518, 
 
 8 Pacific Guano Co. ». Mullen, 66 521, 522; Peterson v. Christensen, 26 
 
 Ala. 582 ; Woods v. Armstrong, 54 Ala. Minn. 377. 
 
 150; Johnston w. McConnell, 65 Ga. 129. '» 2 Kent Com. 466 ; Met. Con. 229 ; 
 
 But see Niemeyer v. Wright, 75 Va. Pollock Con. 251 ; Jones v. Randall, 
 
 239. Cowp. 37, 39 ; Printing, &c. Co. v. 
 
 ' Hanauer v. Doane, 12 Wal. 342, Sampson, Law Rep. 19 Eq. 462 ; Mar- 
 
 347 ; Oxford Iron Co. v. Spradley, 46 tin o. Bartow Iron Works, 35 Ga. 320, 
 
 Ala. 98; Oxford Iron Co. w. Spradley, 329; Guenther v. Dewien, 11 Iowa, 
 
 51 Ala. 171, 175; Lewis ». Latham, 74 133; Reynolds v. Nichols, 12 Iowa, 
 
 N. C. 283. 398 ; Odineal v. Barry, 24 Missis. 9 ; 
 
 8 Lightfoot V. Tenant, 1 B. & P. 551, Ray v. Mackin, 100 111. 246; Peterson 
 
 556; Swanger v. Mayberry, 59 Cal. 9:. v. Christensen, 26 Minn. 377. 
 
 181 
 
§ 478 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 here used to indicate what has already been spoken of,' that 
 only in the law's channels can rights, whether of person or 
 of property, be made to flow. Parties cannot by their con- 
 tracts create new channels. For example, ^ — 
 
 § 475. Conveyances to Husband and Wife. — Under the 
 common law, a husband and his wife cannot, by any form of 
 contract, or by any other means, become tenants by entireties 
 of personal property ; neither, by respectable opinions, not 
 universally accepted, can real estate be so conveyed to them 
 as to render their tenancy therein either joint or in common, 
 but when the attempt is made the law will declare them to 
 be tenants by entireties.^ 
 
 §476. Tendency to Unlawful — (^Lawful on Face). — The 
 mere tendency of a contract to promote unlawful acts ren- 
 ders it illegal as against the policy of the law, without regard 
 to any circumstances indicating the probable commission of 
 such acts.*^ For example, it tends to fraud for the officers of 
 a corporation to speculate on claims against it ; therefore a 
 contract, by such officers, for the purchase of a claim against 
 the corporation cannot be enforced.* And though on the 
 face of a contract nothing unlawful appears, if the parties 
 meant thereby to accomplish an unlawful object, it will be 
 invalid.^ A fortiori, — 
 
 § 477. Directly promoting Unlawful. — To enforce a con- 
 tract in direct subversion or evasion of any regulation which 
 the law has made for the general good would be against 
 sound policy. So that, where persons by mutual agreement 
 bought a ship to be registered in a way to elude the pro- 
 visions of the registry acts, the equity tribunal refused to 
 compel an accounting between them.^ 
 
 § 478. Unjust. — A contract may appear, when viewed in 
 all its circumstances, so unjust and oppressive that its en- 
 forcement^ will be deemed forbidden by public policy. 
 
 1 Ante, § 442, 443, 467. 393. And see Love o. Brindle, 7 Jones, 
 
 2 1 Bishop Mar. Women, §211,616-- N. C. 560. 
 
 619. 6 Riley „. Jordan, 122 Mass. 231, 233. 
 
 8 Egerton v. Brownlow, 4 H. L. Cas. « Battersby v. Smyth, 3 Madd. 110. 
 1, 18 Jar. 71. ' Jestons v. Brooke, Cowp. 793! 
 
 ♦ McDonald v. Haughton, 70 N. C. Plambe v. Carter, Cowp. 116, in note. 
 
 182 
 
CHAP, XVIII.] ILLEGAL OB OF EVIL. TENDENCY. § 481 
 
 Therefore where a sea-captain, on an outward-bound voyage, 
 took from his men their bond to demand no wages until the 
 arrival of the vessel at the home port, this bond, on the ves- 
 sel being lost, was adjudged to be no impediment to the 
 recovery of their wages.^ But one's obligation to remove 
 with his family from a particular parish, and not to renew his 
 inhabitancy there without the consent of the obligee has 
 been held to be good. , So a man " may restrain himself from 
 buying an estate in such a place, or aliening to such a 
 person." ^ 
 
 § 479. Repeal, Renewal, of Statute. — The repeal of a stat- 
 ute does not operate retrospectively ; so that a contract which 
 was void as conflicting with it, is not thereby made good, it 
 remains void.^ Nor will a subsequent promise impart validity 
 to such a contract, for it is without consideration ; * nor will 
 a new statute, since it also has no retrospective force.^ 
 
 § 480. Statute subsequent to Valid Contract. — Statutes 
 often, and properly, make unlawful what was lawful before.^ 
 If, then, by a statute of this sort, the fulfilment of what was 
 a valid agreement is rendered illegal, things already done 
 under it remain valid.^ 
 
 § 481. Mistake of Fact and Law — (Evil Intent). — The 
 contract now under consideration is within the rules of the 
 criminal law as to the intent* Thus, recurring also to the 
 doctrine of the last chapter, if one intentionally does a thing 
 
 1 Buck V. Bawlinson, 1 Bro. P. C. thai, 57 Missis. 331 ; Anding v. Levy, 57 
 137. And see Miller v. Cook, Law Rep. Missis. 51 ; Webber v. Howe, 36 Mich. 
 1 Eq. 641 . Some of the cases state this 1 50. 
 
 doctrine as pertaining rather to the * Ludlow v. Hardy, 38 Mich. 690; 
 equity than to the law tribunals. In Dever v. Corcoran, 3 Allen, N. B. 338, re- 
 most of our States law and equity are ferred to in Robinson v. Barrows, supra, 
 so intermingled as to render the dis- at p. 189. Contra, Carr v. Louisiana 
 tinction unimportant. But aside from Nat. Bank, 29 La. An. 258. Compare 
 this, it would be diflBoult to find any just with ante, § 88-100. 
 ground for excluding it from a court of ^ Mays v. Williams, 27 Ala. 267. 
 law. See post, § 737. 6 Bishop Stat. Crimes, § 957, 992 a, 
 
 2 Shelton v. Sire, 11 Mod. 310. 1001; post, §564, 594. 
 
 s Gilliland B.Phillips, 1 S. C. 152; ' Bennett v. Woolfolk, 15 Ga. 213; 
 
 Robinson v. Barrows, 48 Maine, 186; Bradford v. Jenkins, 41 Missis. 328. 
 Banchor v. Mansel, 47 Maine, 58 ; Milne And see Tucker v. Stokes, 3 Sm. & M. 
 V. Huber, 3 McLean, 212; Jaques v. 124. 
 Withy,. 1 H. Bl. 65; Deoell v. Lewen- 8 Ante, § 216, note. 
 
 183 
 
§ 484 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 which the law declares to be criminal, he commits the offence 
 though not aware of the inhibition ; ^ so, to render a contract 
 void as against public policy, the parties need not understand 
 that the law gives it this character.^ On the other hand, as, 
 in the criminal law, the doing of an outwardly indictable 
 act through an innocent mistake of the facts is not a crime ; 3 
 so, in the law of contracts, an agreement will not be held 
 void as against public policy if honestly entered into in igno- 
 rance of the invalidating facts.* And this doctrine may 
 apply either to both parties or to one.® To illustrate, — 
 
 § 482. Services in Ignorance. — A father who lets his minor 
 son to service may recover compensation though, unknown 
 to him, the son has been employed in selling liquor contrary 
 to a statute ^ which rendered the sales indictable.'' And if an 
 actor who plays in an unlicensed theatrical exhibition does 
 not know that there is no license, he may compel payment 
 for his services.* On this principle, — 
 
 § 483. Indemnity to OfScer Serving Process. — When an 
 officer is called upon to arrest one or attach his goods, and 
 there is doubt as to the identity of the person or the owner- 
 ship of the goods, he may demand a bond of indemnity;' 
 then, though the seizure proves to be unlawful, the bond is 
 valid if the parties acted in good faith, not knowing the real 
 facts; otherwise it is invalid.!" And — 
 
 § 484. Indemnity to Private Person. — An indemnity to a 
 private person, who assists in taking property under a claim 
 of right, is likewise valid, when the act is in good faith, 
 though it turns out to be a trespass.'^ 
 
 1 1 Bishop Crim. Law, § 294, 300, ' Emery v. Kempton, 2 Gray, 257. 
 309. 8 Eoys V. Johnson, 7 Gray, 162. 
 
 2 Saratoga County Bank v. King 44 = Drake Attach. § 189. 
 
 N. Y. 87, 92. "• Marsh v. Gold, 2 Pick. 285; An- 
 
 3 1 Bishop Crim. Law, § 301, 303, derson v. Farns, 7 Blackf. 343; Lamp- 
 303 a, note. ton v. Taylor, 5 Litt, 273 ; Davis v. Tib- 
 
 4 Quirk V. Thomas, 6 Mich. 76. hats, 7 J. J. Mar. 264; Stark v. Kaney, 
 6 Post, § 489 ; Wright v. Crahbs, 78 18 Cal. 622 ; McCartney v. Shepard, 21 
 
 Ind. 487 ; Hanauer v. Doane, 12 Wal. Misso. 573 ; Ives v Jones, 3 Ire. 538. 
 342; Michael u. Bacon, 49 Misso. 474; " Avery v. Halsey, 14 Pick. 174; 
 
 Distilled Spirits, 11 Wal. 356; Suit v. Stone v. Hooker, 9 Cow. I.H. And see 
 
 Woodhall, 113 Mass. 391 ; ante, § 216. McLauren v. Graham, 26 Missis. 400. 
 » Ante, § 472. 
 
 184 
 
CHAP. XVIII.] ILLEGAL OB OP EVIL TENDENCY. § 487 
 
 § 485. Indemnity for Neglect of Duty. — An undertaking 
 to indemnify an officer for neglecting his duty is, within the 
 principle under consideration, void.i But — 
 
 § 486. Taking Security. — It is not a neglect in him, when 
 making an attachment, to take security for the debt ; so that 
 a note given him on consideration of his releasing or forbear- 
 ing an attachment is good.^ 
 
 § 487. In Part lUegal. — A contract illegal in part and legal 
 as to the residue is void as to all, when the parts cannot be 
 separated ; when they can be, the good will stand and the 
 rest fall. One entire consideration cannot, within this rule, 
 be separated, though composed of distinct items, some of 
 which are legal and others illegal.^ To illustrate : where one 
 uninterrupted service consists chiefly of what is lawful, yet 
 in small part of acts done in an unlawful business, nothing 
 can be recovered for it.* But if a promissory note is given 
 in part payment of a running account, containing illegal 
 items, yet if it is not in excess of the good ones, it will be 
 valid ; because " the law would appropriate the payment to 
 the lawful items," and the payee could not have applied it to 
 the unlawful.^ Where a mortgage is given to secure two 
 promissory notes, the one of which is valid and the other 
 illegal, it can be enforced as to the good one.^ If a statute 
 prohibits an officer from claiming a reward for the detection 
 of a crime, one who comes to the aid of the officer, but does 
 not independently do what would entitle him to the reward, 
 
 1 Hodsdon w. Wilkins, 7 Greenl. 113; McCahon, 21; Hanauer v. Gray, 25 
 Ayer v. Hutchins, 4 Mass. 370 ; Church- Ark. 350 ; Widoe v. Webb, 20 Ohio 
 ill V. Perkins, 5 Mass. 541. State, 431 ; Jones's Case, 1 Leon. 203; 
 
 2 Foster v. Clark, 19 Pick. 329; Mason v. Watkins, 2 Vent. 109; Val- 
 Shotwell V. Hamblin, 23 Missis. 156; entine f. Stewart, 15 Cal. 387; Dean u. 
 Eandle v. Harris, 6 Yerg. 508. See Emerson, 102 Mass. 480; More u. Bon- 
 Webbers ». Blunt, 1 9 Wend. 1 38 ; Win- net, 40 Cal. 251; Newberry Bank v. 
 ter i>. Kinney, 1 Comst. 365 ; Hunter y. Stegall, 41 Missis. 142; Bobinson v. 
 Agee, 5 Humph. 57 ; Prewitt w. Garrett, Bland, 2 Bur. 1077, 1082; Pullerton 
 6 Ala. 128. V. Agnew, 1 Salk. 172, Holt, 148 ; Marie 
 
 « Yale V. Rex, 6 Bro. P. C. 27, 31 ; v. Flake, Holt, 122. 
 Kimbrough u. Lane, 11 Bush, 556; Sara- * Bixby v. Moor, supra, 
 
 toga County Bank v. King, 44 N. Y. 87 ; ^ Warren v. Chapman, 105 Mass. 87, 
 
 Chandler v. Johnson, 39 Ga. 85 ; Braitch 89. 
 V. Guelick, 37 Iowa, 212 ; Bixby v. « Carradine v. Wilson, 61 Missis. 573. 
 
 Moor, 51 N. H. 402 ; Fackler v. Ford, 
 
 185 
 
§ 489 IN GENERAL WITH ILLUSTEATIONS. [BOOK I. 
 
 can have nothing.^ Still where in any way there is a com- 
 plete right outside of what is illegal, it may be enforced.* 
 
 § 488. Unlawful upon Unlawful. — A contract executed in 
 consideration of a previous illegal one,^ or in compromise of 
 differences growing out of it,* is, like that whereon it rests, 
 illegal, and incapable of being enforced. 
 
 § 489. Mutual Relations of Parties. — The law denies re- 
 dress to a person who has suffered from another's fault, if 
 himself to blame in the same thing.^ And one sued may set 
 up this defence, though in pleading it he necessarily alleges, 
 what in most other classes of cases he cannot do, his own 
 wrong.^ Whichever party, therefore, brings a suit on a con- 
 tract of the sort we are considering in this chapter, the other 
 may ordinarily defend it on the ground that it violates the 
 public policy or the law.'' This rule is sometimes relaxed, 
 particularly in courts of equity, and even in courts of law, in 
 favor of a party deemed less guilty or more excusable than 
 the other, by permitting him to maintain his suit in circum- 
 stances where the public interests will, in the judicial opinion, 
 be thereby advanced.* If the illegal contract has been carried 
 into execution so as to vest interests or property in the one 
 party or the other, neither will be granted by the tribunal 
 "what is termed equitable relief ; ® but they may lawfully ad? 
 just their respective claims, divide their property, or the like, 
 or the court will enforce partition.^" Moreover, they may at 
 any time recede from their illegal contract, and place them- 
 
 1 Dunham v, Stockbridge, 133 Mass. Johnson, Cowp. 341, 343 ; Horton v. 
 233. Buffinton, 105 Mass. 399 ; Taylor v. Ches- 
 
 2 Ware v. Curry, 67 Ala. 274. ter. Law Eep. 4 Q. B. 309, 314. 
 
 3 Gate V. Blair, 6 Coldw. 639 ; Pierce 8 Osborne v. Williams, 18 Ves. 379 ; 
 V. Kibbee, 51 Vt. 559 ; King v. Winants, Eeynell v. Sprye, 8 Hare, 222, 1 De G. 
 71 N. C. 469, 73 N. C. 563. MacN. & G. 660 ; Lacaussade v. White, 
 
 * Everingham v. Meighan, 55 Wis. 7 T. E. 535 ; White v. Franklin Bank, 
 
 354; Wilson y. Bozeman, 48 Ala. 71. 22 Pick. 181, 186; 2 Chit. Con. 11th 
 
 6 2 Bishop Mar. & Div. § 75. Am. ed. 976. 
 
 " Bayley v. Taber, 5 Mass. 286, 293 ; « Mc Williams v. Phillips, 51 Missis. 
 
 Parrar v. Barton, 5 Mass. 395, 398. 196. 
 
 " Shaw V. Carlile, 9 Heisk. 594 ; i« Ehea v. White, 7 Lea, 628 ; DeLeon 
 
 Langfordw. Monteith, lldaho.N. s. 612; v. Trevino, 49 Texas, 88; Norton f. 
 
 Gunter v. Leckey, 30 Ala. 591 ; Ybarra Blinn, 39 Ohio State, 145. Compare 
 
 V. Lorenzana, 53 Cal. 197 ; Holman v. with Northrup v. Phillips, 99 III. 449. 
 
 186 
 
CHAP. XVIII.] ILLEGAL OB OF EVIL TENDENCY. § 493 
 
 selves in statu quo.^ And it is but repeating what has already 
 been laid down ^ to add, that, where one of the parties is igno- 
 rant of the facts which make the contract illegal, he may en- 
 force it against the other who knows them.^ 
 
 § 490. other Views — of the general doctrine appear in 
 connection with the particular elucidations of the subsequent 
 sub-titles. These divisions of topics are, like all others made 
 by any author, for practical convenience only ; the law itself 
 is seamless.* 
 
 II. Contracts in Obstruction of Judicial Justice. 
 
 § 491. Doctrine defined. — The doctrine of this sub-title is, 
 that a contract to do anything, whether indictable or not, 
 tending to obstruct the administration of justice in the courts, 
 is void as against the law or its policy. Thus, — 
 
 § 492. Compounding. — Within limits which the author has 
 explained in another work, it is indictable to compound a 
 crime or a penal action.^ Therefore^ any agreement to do 
 such indictable act is void as against law.'' Even, — 
 
 § 493. Less than Compounding. — Where the agreement 
 comes short of a technical compounding, but the thing con- 
 tracted for tends to the same mischief of impeding or dis"- 
 couraging the orderly prosecution of crime, the policy of the 
 law is violated, rendering the contract void.^ It is so, for 
 
 1 Lea V. Cassen, 61 Ala. 312, 316. ard, 470 ; Bailey v. Buck, 11 Vt. 252 ; 
 
 2 Ante, § 481, 482. Kimbrough v. Lane, 11 Bush, 556 ; Cain 
 8 Wright V. Crabbs, 78 Ind. 487. v. Southern Express Co. 1 Baxter, 315; 
 * And see Jones v. Eandall, Cowp. Wight v. Eindskopf, 43 Wis. 344 ; Crow- 
 
 37, 39 ; post, § 640. der v. Reed, 80 Ind. 1 ; Clubb v. Hut- 
 
 6 1 Bishop Crira. Law, § 709-715. son, 18 C. B. K. s. 414; Clark v. Col- 
 
 8 Ante, § 471. bert, 67 Ala. 92 ; McMahon v. Smith, 
 
 ' Osbaldeston v. Simpson, 7 Jur. 734 
 Williams v. Bayley, Law Rep. 1 H. L 
 200; Soule V. Bonney, 37 Maine, 128: 
 Commonwealth v. Pease, 16 Mass. 91 : 
 Bell V. Wood, 1 Bay, 249 ; Mattocks v. 
 
 47 Conn. 221 ; In re Mapleback, 4 Ch. D. 
 150; Clark v. Pomeroy, 4 Allen, 534. 
 
 8 Barron v. Tucker, 53 Vt. 338, 341 ; 
 Bills V. Comstock, 12 Met. 468 (comr 
 pare with Stonington v. Powers, 37 
 
 Owen, 5 Vt. 42; Plnmer v. Smith, 5 Conn. 439); Haines w. Lewis, 54 Iowa, 
 
 N. H. 553 ; Cameron v. McFarland, 2 301 ; Hinds v. Chamberlin, 6 N. H. 
 
 Law Repos. 415 ; Corley v. Williams, 1 225 ; Ward v. Allen, 2 Met. 53 ; Guil- 
 
 Bailey, 588 ; Hinesburgh v. Sumner, 9 ford v. March, 89 N. C. 268 ; Dunkin 
 
 Vt. 23 ; State Bank v. Moore. 2 South- v. Hodge, 46 Ala. 523 ; Commonwealth 
 
 187 
 
§ 496 IN GENERAL WITH ILLUSTRATIONS. [BOOK I, 
 
 example, of an undertaking to stifle a criminal prosecution,^ or 
 influence its favorable termination.^ And it is the same of a 
 security or promise given with the mere expectation that it 
 will have such effect, or prevent a prosecution from being 
 commenced.* But — 
 
 § 494. Amends. — This doctrine does not render void a 
 promise or security given as mere amends for the civil wrong* 
 involved in the criminal transaction.^ For example, a thief 
 may make a valid promise to restore or pay for the thing 
 stolen.® Even a threat of prosecution will not invalidate the 
 civil adjustment if in itself fair and correct.^ So, — 
 
 § 495. Settling Private Suit — (Bastardy — Bankruptcy). — 
 It is always commendable to compromise a private suit ; ^ 
 therefore, for example, an agreement not to prosecute one 
 under the bastardy act is a good consideration for a promise.* 
 But compromises in violation of bankrupt laws, and the like, 
 where other persons than the parties compromising may be in- 
 juriously affected, are violative of the public policy on which 
 the laws are founded, and void.^** 
 
 § 496. other Obstructions. — In addition to the foregoing 
 illustrations of the doctrine, that a contract tending to the 
 obstruction of any form of justice as administered in the 
 
 V. Johnson, 3 Cush. 454; Gorham ti. v. Sadler, 9 Q. B. D. 83, 10 Q. B. 
 Keyes, 137 Mass. 583. D. 572; Breathwit v. Rogers, 32 Ark. 
 
 1 Shaw V. Eeed, 30 Maine, 105; 758. 
 
 Ward V. Allen, 2 Met. 53 ; Baker v. 5 i Bishop Crim. Law, § 264-278. 
 
 Farris, 61 Misso. 389 ; Barclay w. Breek- ' Von Windisch v. Klaus, 46 Conn, 
 
 inridge, 4 Met. Ky. 374 ; Snyder v. Wil- 433. 
 
 ley, 33 Mich. 483 ; Southern Express ' Plant ». Gunn, 2 Woods, 372 ; 
 
 Co. V. Duffey, 48 Ga. 358; Soule v. Ward w. Lloyd, 6 Man. & G. 785, 7 Scott 
 
 Bonney, 37 Maine, 128 ; Kcir v. Lee- N. R. 499 ; Flower v. Sadler, supra ; 
 
 man, 6 Q. B. 308. post, § 720, 721. 
 
 2 Rieketts v. Harvey, 78 Ind. 152; » Ante, §57; Bellows v. Sowles, 55 
 Rhodes v. Neal, 64 Ga. 704; Averbeck Vt. 391. 
 
 V. Hall, 14 Bush, 505 ; Barron v. Tucker, ^ Burgen v. Straughan, 7 J. J. Mar. 
 
 supra ; Ormerod v. Dearman, 4 Out Pa. 583 ; Hays v. McFarlan, 32 Ga. 699 
 
 561. Weaver v. Waterman, 18 La. An. 241 
 
 8 Riddle v. Hall, 3 Out. Pa. 116; Maxwell ». Campbell, 8 Ohio State, 265 
 
 Laing v. McCall, 50 Vt. 657. Breathwit v. Rogers, 32 Ark. 758 ; Keir 
 
 * Catlin V. Henton, 9 Wis. 476 ; v. Leeman, 6 Q. B. 308. 
 
 Mathison v. Hanks, 2 Hill, S. C. 625; " Wiggin v. Bush, 12 Johns. 306; 
 
 Puckett II. Roqueraore, 55 Ga. 235; Rice v. Maxwell, 13 Sm. & M. 289; 
 
 Malli V. Willett, 57 Iowa, 705; Flower Payne v. Eden, 3 Caines, 213. 
 
 188 
 
CHAP. XVIII.] ILLEGAL OR OF EVIL TENDENCY. § 498 
 
 courts is void,i may be mentioned an undertaking to abstain 
 from testifying as a witness in a suit,^ to procure a witness to 
 swear to a particular thing,^ or to pay a witness more if the 
 party succeeds than if he does not.* And any bargain tending 
 to influence the witness's testimony is within this principle.^. 
 So, where a divorce has been wrongfully obtained, a subse- 
 quent agreement not to disturb it is forbidden by public 
 policy.^ But the withdrawal of a divorce suit is an act which 
 the law approves^ An agreement not to remove a suit to 
 the United States courts from a State court is invalid, and a 
 statute of a State requiring it is void as prohibited by the 
 constitution of the United States.^ 
 
 § 497. Champerty — Maintenance. — Contracts involving 
 champerty or any other form of maintenance are, under the 
 common law as it existed in England when our country was 
 settled, void. With us the old doctrine has been greatly 
 modified in later times, and the present rulings differ in our 
 States. In some of the States, little of this impediment 
 remains ; in others, more ; and, in numbers of them, it still 
 presents nearly its original proportions.^ In a work so general 
 as this, it would be unwise to enter minutely into the subject ; 
 since, after all, the practitioner would be compelled to consult 
 the rulings of his own tribunals. 
 
 III. Contracts in Obstruction of Governmental Order. 
 
 § 498. Elections. — Obviously a contract to commit an 
 election fraud or other offence against the election laws is, 
 
 1 See, for other illustrations, Dixon ^ Haines v. Lewis, 54 Iowa, 301. 
 
 V. Olmstead, 9 Vt. 310 ; DouTille v. ^ Comstock v. Adams, 23 Kan. 513, 
 
 Merrick, 25 Wis. 688; Stoutenburg v. 523. 
 
 Lybrand, 13 Ohio State, 228 ; Porter v. "> Adams v. Adams, 91 N. Y. 381. 
 
 Jones, 52 Misso. 399 ; Price v. Caperton, 8 Insurance Co. v . Morse, 20 Wal. 
 
 1 Duvall, 207 ; Doughty v. Owen, 24 445 ; Doyle v. Continental Ins. Co. 94 
 
 Missis. 404. IT. S. 535. 
 
 2 Valentine v. Stewart, 15 Cal. 387; » 2 Bishop Crim. Law, § 121-140; 
 Badger v. Williams, 1 D. Chip. 137 ; Evans v. Bell, 6 Dana, 479 ; McMahan 
 Bierbauer u. Wirth, 10 Bis. 60. v. Bowe, 114 Mass. 140; Martin v. 
 
 a Patterson v. Donner, 48 Cal. 369. Clarke, 8 E. I. 389 ; Brown v. Beau- 
 
 * Dawkins v. Gill, 10 Ala. 206. See champ, 5 T. B. Monr. 413 ; Arden v. 
 
 Wellington v. Kelly, 84 N. Y. 543. Patterson, 5 Johns. Ch. 44 ; McMicken 
 
 189 
 
§ 499 IN GENERAL WITH ILLUSTRATIONS. [BOOK I; 
 
 when the thing done or attempted is indictable,^ void as 
 against law. And the rule of public policy extends further; 
 and renders void every contract tending to obstruct the un- 
 biassed selection of men for positions of public trust : as, where 
 a candidate, in consideration of money or influence to help his 
 election, promises that the person furnishing it shall share in 
 the profits of the office,^ or be appointed to an office under 
 him; 2 or where he undertakes to pay for food and liquor 
 furnished to his " friends." * 
 
 § 499. Influencing OfScial Conduct. — Attempts to influence 
 official conduct violate public policy or not according to their 
 nature and circumstances. A lawyer or other person may 
 properly appear before the officer, at a suitable time, openly, 
 and while the officer is acting in the discharge of the duties 
 of his office, — as, before a court or legislative committee, — 
 and present facts and arguments to move him, not corruptly, 
 but legitimately ; and a promise to pay for such services will 
 be good." But all private attempts of the sort, however honest 
 and fair in themselves, being contrary to what ought to be 
 the known and established course in every office, — and all 
 attempts, however open, by addressing to the officer other 
 than public considerations, — are detrimental to the public 
 interests ; therefore contracts founded upon them are void. 
 Examples are lobbying ^ and other contracts to employ pri- 
 vate influence with a public officer.'^ 
 
 V. Perin, 18 How. IT. S. 507; Byrd v. ' Robertson v. Robinson, 65 Ala. 
 
 Odem, 9 Ala. 755 ; Scobey v. Ross, 13 610; Hager v. Catlin, 18 Hun, 448. 
 Ind. 117; Coquillard v. Bearss, 21 Ind. * Duke v. Asbee, 11 Ire. 112. 
 479 ; Slade v. Rhodes, 2 Dev. & Bat. Eq. ° Winpenny v, French, 18 Ohio State, 
 
 24 ; Weedon ». Wallace, Meigs, 286 ; 469 ; Price v. Caperton, 1 Duvall, 207 ; 
 
 Burt V. Place, 6 Cow. 431 ; Nichols v. Wildey v. Collier, 7 Md. 273 ; Sedgwick 
 
 Buntingr, 3 Hawks, 86 ; Martin v. Amos, v. Stanton, 4 Kernan, 289 ; Bryan v. 
 
 13 Ire. 201. Reynolds, 5 Wis. 200. 
 
 1 Bishop Stat. Crimes, § 802-826. 6 Mills i\ Mills, 40 N. Y. 543 ; Trist 
 
 2 Martin v. Wade, 37 Cal. 168 ; Gas- v. Child, 21 Wal. 441 ; Frost v. Bel- 
 ton V. Drake, 14 Nev. 175. And see, of mont, 6 Allen, 152; Marshall ». Balti- 
 the like sort, O'Rear v Kiger, 10 Leigh, more, &c. Railroad, 16 How. U. S. 314; 
 622; Gray v. Hook, 4 Comst. 449. See Gil v. Williams, 12 La. An. 219; Clip- 
 also Eddy V. Capron, 4 R. I. 394; Haas pinger v. Hepbaugh, 5 Watts & S. 315; 
 V. Fenlon, 8 Ean. 601 ; Stroud v. Smith, Powers v. Skinner, 34 Vt. 274 ; Usher 
 4 Houst. 448 ; Ferris v. Adams, 23 Vt. v. McBratney, 3 Dillon, 385. 
 
 136. ' Maguire v. Smock, 1 Wils. Ind. 92 ; 
 
 190 
 
CHAP. XVIII.] ILLEGAL OB OP EVIL TENDENCY. § 502 
 
 § 600. Contracts with Officer. — Any contract between an 
 officer and a private person, by which the former undertakes 
 to do anything of official duty, right or wrong, in accord with 
 such duty or contrary to it, is in a greater or less degree an 
 obstruction to the unbiassed exercise of his office, even where 
 it does not influence him corruptly ; therefore it is void.^ But 
 this does not prevent him from receiving or contracting for 
 lawful compensation for ms services ; ^ or, as we have seen,^ 
 fiom taking in proper circumstances a bond of indemnity. 
 
 § 501. Iiegislation. — The foregoing principles show that 
 contracts relating to the procurement of legislation may be 
 within the one class or the other according to the particu- 
 lar case.* Thus it was held that an agreement to obtain 
 the passage of a law, made with the corrupt intent to collect 
 of the State a claim, invalidates the claim, even in the hands 
 of an assignee.^ But there are various forms of contract re- 
 lating to private bills and even to public ones, — such as the 
 withdrawal of opposition to the former, by one interested,® — 
 to which there is no objection 7 
 
 § 502. Pardon. — It is believed that an undertaking to pro- 
 cure a pardon will, also, be good or bad according to the cir- 
 cumstances, as tested by the foregoing principles. There is 
 some entanglement in the decisions.^ 
 
 Hutchen v. Gibson, 1 Bush, 270 ; Cook * Weed v. Black, 2 MacAr. 268 ; 
 
 V. Shipman, 51 111. 316. And see Dev- Keed v. Peper Tobacco Warehouse Co. 
 
 lin V. Brady, 36 N. Y. 531 ; Dudley v. 2 Misso. Ap. 82. 
 
 Butler, 10 N. H. 281 ; Smith v. Apple- « Monroe Bank v. The State, 26 
 
 gate, 3 Zab. 352 ; Winpenny v. French, Hun, 581. 
 
 18 Ohio State, 469. « Vauxhall Bridge Co. v. Spencer, 
 
 1 Satterlee v. Jones, 3 Duer, 102 ; Jacob, 64, 68, 2 Madd. 356. 
 
 Odineal v. Barry, 24 Missis. 9 ; Callagan 7 Simpson v. Howden, 9 CI. & F. 61 ; 
 
 V. Hallett, 1 Caines, 104 ; Randolph u. Edwards v. Grand Junction Railway, 7 
 
 Jones, Breese, 103 ; Richardson v. Cran- Sim. 337, 1 Myl. & C. 650 ; Macgregor 
 
 dall, 48 N. Y. 348 ; Newsom u. Thighen, v. Dover, &c. Railway, 18 Q. B. 618; 
 
 30 Missis. 414 ; Waldron v. Evans, 1 Bowman v. Coffroth, 9 Smith, Pa. 19, 
 
 Dak. 11. 23. 
 
 2 Ante, § 47 ; 2 Bishop Crim. Law, 8 Formby v. Pryor, 15 Ga. 258 ; 
 § 395 ; Converse v. United States, 21 Meadow v. Bird, 22 Ga. 246 ; Bird v. 
 How. TJ. S. 463, 469 ; Morrell v. Quarles, Meadows, 25 Ga. 251 ; Bowman v. Cof- 
 35 Ala. 544 ; Evans v. Trenton, 4 Zab. froth, 9 Smith, Pa. 19, 23 ; Marshall v. 
 764; Bona v. Davant, Riley Eq. 44; Baltimore, &c. Railroad, 16 How. TI. S. 
 Massing v. The State, 14 Wis. 502. 314 ; Kribben v. Haycraft, 26 Misso. 
 
 « Ante § 483. 396 ; Hatzfleld v. Gulden, 7 Watts, 152 ; 
 
 191 
 
§ 506 IN GENERAL WITH ILLTTSTEATIONS. [BOOK I. 
 
 § 503. Tending to Corrupt an Officer. — Of course, tlie prom- 
 ise of a bribe is void ; ^ for it is a breach of the criminal law. 
 Void also is a promise to pay a contractor money if he will 
 repudiate his contract for carrying the mail, even though he 
 has given bonds which will secure the government against 
 loss.^ Illustrations of this principle might be multiplied in- 
 definitely.* So — 
 
 § 604. other Obstructions. — There are other forms of ob- 
 struction too numerous to be particularized. The principles 
 already appear, and the practitioner will have no difficulty in 
 applying them to the varying cases as they arise.* 
 
 IV. Contracts violative of Good Morals. 
 
 § 505. Protected by Law. — Prominent among the interests 
 which the law protects, are the public morals.^ To some, in- 
 deed, its criminal justice seems a little lax regarding them ; 
 but not so, in general, is its civil. Hence, — 
 
 Doctrine defined. — No agreement prejudicial to pubhc mor- 
 als, whether involving a violation of the criminal law or not, 
 can have force. The common expression is, that a contract 
 contra bonos mores, or to commit any immoral act, is void.^ 
 Thus, — 
 
 § 506. Prostitution — (Bawdy-house). — Any contract aux- 
 iliary to thf^eepmgof a bawdy-Eouie^or otherwise encourag- 
 ing prostitution, — or, in the language of Pollock, C. B., 
 " supplying a thing with the knowledge that it is going to be 
 used for that purpose," — is void.^ This includes the letting 
 
 Chadwick v. Knox, 11 Post. N. H. 226 ; Conn. 470 ; Rodgers ». Bass, 46 Texas, 
 
 O'Eeilly u. Cleary, 8 Misso. Ap. 186. 505; Hawes v. Miller, 56 Iowa, 395; 
 
 1 Smith K. Stotesbury, 1 W. Bl. 204 ; Gould v. Kendall, 15 Neb. 549; The 
 s. c. nom. Stotesbury v. Smith, 2 Bur. State v. Elting, 29 Kan. 397 ; Denison 
 924. V. Crawford, 48 Iowa, 211. 
 
 2 Weld V. Lancaster, 56 Maine, 453. * 1 Bishop Crim. Law, § 500. 
 
 See Gulick v. Ward, 5 Halst. 87. « 2 Kent Com. 466 ; Fores ». Johnes, 
 
 8 Por example, Lucas v. Allen, 80 4 Esp. 97 ; Jones v. Eandall, Cowp. 37, 
 
 Ky. 681; Caton v. Stewart, 76 N. C. 39; Forsythe v. The State, 6 Ohio, 19, 
 
 357; Fawcett v. Eberly, 58 Iowa, 544. 21; Dumont v. Dufore, 27 Ind. 263; 
 
 See Stout V. Ennis, 28 Kan. 706. Merrick v. Bank of the Metropolis, 8 
 
 * See, for example, Cromwell v. Con- Gill, 59. 
 
 necticut Brown Stone Quarry Co. 50 ' Pearce v. Brooks, Law Eep. 1 Ex. 
 
 192 
 
CHAP. XVIII.] ILLEGAL OR OP EVIL TENDENCY. § 509 
 
 of a house for bawdry ,i letting a carriage to a prostitute as a 
 part of her equipage to entice men,^ and in some circumstan- 
 ces furnishing her with board ^ and clothing.* The applica- 
 tion of this doctrine involves a few nice distinctions, not on all 
 of which are the courts quite agreed.^ Some of these things 
 are within the inhibitions of statutes, and — 
 
 § 607. Contravening Statute. — An agreement meant to 
 enable one to contravene any statute for the protection of 
 public morals is without effect.^ 
 
 § 508. Bawdy Libel. — A bawdy libel, whether a picture 
 or book, or whatever else its form, tends to impair the public 
 morals ; so that no contract for making it, printing it, or in 
 any way assisting therein, and no agreement for its sale, will 
 be enforced.' Nor can the author or publisher maintain a 
 suit at law or in equity for damages, or for an injunction, 
 against a printer who pirates the libel.* 
 
 § 509. Illicit Cohabitation — (Promise — Reparation^. — All 
 il licit commerce between the sexes being immoral, a promise 
 to pay for it, made before it takes place, is void even where 
 the act is not indictable.® Nor is it otherwise though the 
 thing promised is the most appropriate recompense possible, 
 marriage ; the promise is void.^" Nor yet does a seal help the 
 promise ; because, though it implies a consideration, the true 
 consideration vitiates what else would be adequate.^^ After 
 
 213, 217 ; Smith v. White, Law Rep. 1 « Ritchie v. Smith, 6 C. B. 462, 13 
 
 Eq. 626. Jur. 63. 
 
 1 Grisp V. Churchill, cited 1 B. & P. ' Fores v. Johnes, 4 Esp. 97 ; Poplett 
 
 340; Jennings B.Throgmorton, Ryan & v. Stockdale, Ryan and Moody, N. P. 
 
 Moody, N. P. 251. See 1 Bishop Crim. 337, 2 Car. & P. 198 ; Gale v. Leckie, 2 
 
 Law, § 1090-1096. Stark. 107. 
 
 ^ Pearce v. Brooks, supra; Girardy ^ Stockdale v. Onwhyn, 5 B. & C. 
 
 B. Richardson, 1 Esp. 13. 173, 2 Car. & P. 163. 
 
 3 Mackbee i'. Griffith, 2 Cranch C.C. » Walker v. Gregory, 36 Ala. 180; 
 
 336. Compare with Lloyd v. Johnson, Winebrinner v. Weisiger, 3 T. B. Monr. 
 
 1 B. & P. 340; 2 Chit. Con. llth Am. 32; Sherman v. Barrett, 1 McMnllen, 
 
 ed, 981. 147 ; Singleton v. Bremar, Harper, 201 ; 
 
 * Bowry v. Bennet, I Camp. 348. Trovinger v. McBuraey, 5 Cow. 253 ; 
 
 ^ Compare with the foregoing cases Wilson v. Ensworth, 85 Ind. 399. 
 
 Armfield w. Tate, 7 Ire. 258; Hanauer ^ Baldy v. Stratton, 11 Jones, 316; 
 
 V. Doane, 12 Wal. 342; McGavock v. Goodall v. Thurman, 1 Head, 209. 
 
 Puryear, 6 Coldw. 34; Michael v. Ba- " Ante, § 51, 119-123; Walker v. 
 
 con, 49 Misso. 474; Taylor v. Chester, Perkins, 3 Bur. 1568; Friend v. Harri- 
 
 Law Rep. 4 Q. B. 309. " son, 2 Car. & P. 584 ; In re Vallance, 26 
 
 13 .193 
 
§ 511 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 the intercourse, a parol undertaking to pay for it is void, not 
 because it is immoral to repair a wrong, but because the con- 
 sideration is past ; ^ and, in a case like this, the law cannot 
 imply a prior request.^ But an obligation under seal in repa- 
 ration of the wrong will be good ; for this is not immoral.^ 
 And it is the same of any executed* gift, whether under seal 
 or not, it cannot be recalled.^ Even though a gift is made in 
 view of future illicit commerce, if it is perfected by delivery, 
 it will stand.^ And, — 
 
 § 510. Further of Reparation. — In various circumstances, 
 after an illicit cohabitation has taken place, some collateral 
 matter may be brought in for a consideration, to enable one to 
 make a valid promise not under seal, the leading motive to 
 which is reparation for the wrong.' If the case is within the 
 bastardy acts, a forbearance to prosecute under them will be 
 a good consideration.® And a promise to a husband, in settle- 
 ment of a claim for the seduction of his wife, will be valid.' 
 And — 
 
 § 511. Marriage — is specially favored in this class of cases. 
 Therefore the bond, of a seducer to the woman seduced, un- 
 dertaking to marry her and, if he deserts her or fails to sup- 
 port her or the child, to pay her a sum named, is good.^" "A 
 
 Ch. D. 353, 355, 356 ; Hall v. Palmer, 3 stand it to be a first principle, not now 
 
 Hare, 532, 8 Jur. 459. to be assailed or even doubted, that 
 
 1 Beaumont v. Reeve, 8 Q. B. 483. where a contract based on a considera- 
 
 ^ Ante, § 90-92. tion contrary to law, immoral, or op- 
 
 5 Gray v. Mathias, 5 Ves. 286 ; Met. posed to public policy, has been fully 
 Con. 222; Hall i'. Palmer, supra; Bivins and voluntarily executed, if the parties 
 V. Jarnigan, 3 Baxter, 282. See Cusack are in pari delicto, the courts will not in- 
 V. White, 2 Mill. 279 ; Shenk v. Mingle, terfere to disturb the acquired rights of 
 13 S. & R. 29. And, for the law on either, at the instance of the other, 
 several of the propositions in the text, The result is the same as if the contract 
 Ayerst v. Jenkins, Law Rep. 16 Eq. 275. had originally been legal and valid, and 
 
 * Ante, § 81, 82; post, § 545, 627. neither can recover the consideration 
 
 6 Bivins V. Jarnigan, supra; Gay v. which he has thus voluntarily parted 
 Parpart, 106 U. S. 679 ; Carter v. Mont- with." And see post, § 545, 627. 
 gomery, 2Tenn. Ch. 216; Gisafu.Neval, ' Self v. Clark, 2 Jones Eq. 309; 
 31 Smith, Pa. 354. Yet in some cir- Flanegan v. Garrison, 28 Ga. 136; Trov- 
 cumstances it will be void as against inger v. McBurney, 5 Cow. 253. 
 creditors. Jackson v. Miner, 101 Dl. ' Ante, § 495. 
 
 550. 9 See McGowen v. Bush, 17 Texas, 
 
 6 Hill V. Freeman, 73 Ala. 200, 201, 195. 
 Sonierville, J., observing : " We under- i' Armstrong v. Lester, 43 Iowa, 159. 
 
 194 
 
CHAP. XVIII.] ILLEGAL OR OP EVIL TENDENCY. § 514 
 
 marriage brocage contract — that is, an undertaking for re- 
 ward to procure a marriage between two parties — is void." ^ 
 A fortiori, marriage gambling contracts are void.^ 
 
 § 512. Secrecy as to Immorality. — It has been held that 
 one may lawfully buy another's silence as to criminal inter- 
 course charged to have taken place between the former and 
 the latter's wife ; so that a promissory note, given on this con- 
 sideration, is good. " There is," said "Woods, C. J., " no rule 
 of public policy which forbids such a contract for silence, so 
 long as it is not in contemplation to conceal and prevent the 
 punishment of a crime. . . . The public morals will surely 
 not sufEer by the suppressing of such scandals." ^ 
 
 V. Contracts in, Restraint of Trade. 
 
 § 513. On what Ground. — The prosperity alike of the 
 community and of the individual is largely promoted by leav- 
 ing every man free to occupy himself in such business, and at 
 such place, as the demands of patronage and his own partic- 
 ular means and qualifications indicate. Chiefly upon this 
 principle the law declines to enforce contracts in restraint of 
 trade.* Where there is such restraint on the one hand, there 
 is monopoly on the other, and monopolies are odious to the 
 law ; so that, upon this ground also, if indeed it is not deemed 
 identical with the other, the law of this subject proceeds.* 
 Hence, — 
 
 § 514. Doctrine defined. — The doctrine of this sub-title is, 
 that the courts will enforce no contract whereby a party 
 utterly excludes himself from the following of any lawful 
 trade or business ; while yet he may, for a valuable consider- 
 ation but not otherwise, put himself under such reasonable 
 
 1 2 Chit. Con. 11th Am. ed. 988, < Oregon Steam Nav. Co. w. Winsor, 
 refening to Hall v. Potter, 3 Lev. 411 ; 20 Wal. 64. 
 
 Keat V. Allen, 2 Vern. 588 ; Roberts ' Amot v. Pittston, &c. Coal Co. 68 
 
 V. Roberts, 3 P. Wms. 66, 74, note ; Co. N. Y. 558 ; Skrainka v. Scharringhausen, 
 
 Lit 206 6, note; 1 Fonb. Eq. 5th ed. 8 Misso. Ap. 522 ; Craft t>. McConoughy, 
 
 263. And see 1 Story Eq. § 260-264. 79 III. 346 ; Western Union Tel. Co. v. 
 
 2 Chalfant v. Payton, 91 Ind. 202. American Union Tel. Co. 65 Ga. 160. 
 8 Wells V. Sutton, 85 Ind. 70, 74. 
 
 195 
 
§ 517 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 restrictions of time, place, and circumstances as shall not 
 materially impair the general right. More in detail, — 
 
 § 515. Unlimited Restraint. — An agreement, without limi- 
 tation, not to carry on a particular trade, which is lawful, and 
 beneficial to the community and to the individual, is void as 
 against public policy.^ And it is not otherwise though the 
 party promising is a foreigner.^ But — 
 
 § 516. Permissible Restraint. — Neither public nor private 
 interests are prejudiced where persons in an employment 
 divide, one conducting it in one place and another in another. 
 Therefore, if, on good reason, and for a valuable considera- 
 tion,^ a man promises not to carry on a specified business 
 within a defined locality of reasonable extent, either generally, 
 or especially where the restriction is also to a limited number 
 of years, — and perhaps, in some very exceptional cases, under 
 unusual circumstances, where the restriction is for a short 
 time with no bound of space, — the undertaking is binding 
 upon him.* Within this doctrine, — 
 
 §517. Meaning of "Reasonable Space." — A " reasonable 
 Space " for carrying on a business is not ascertainable by any 
 measurement in miles, it depends on the nature and demands 
 of the business, the situation of the country and population, 
 and the like.^ The question is one of law for the court.* It 
 
 1 Alger V. Thacher, 19 Pick. 51; 42Ind. 15; Grasselli u. Lowden, U Ohio 
 Hilton V. Eckersley, 6 Ellis & B. 47, 66 ; State, 349 ; Holmes v. Martin, 10 Ga. 
 Mitchel V. Reynolds, 1 P. Wms. 181 ; 503 ; Chappel !;. Brockway, 21 Wend. 
 Homer v. Ashford, 3 Bing. 322 ; Dean 157; Kellogg v. Larkin, 3 Chand. 133; 
 V. Emerson, 102 Mass. 480 ; Rosa v. Beard v. Dennis, 6 Ind. 200 ; Pierce v. 
 Sadgbeer, 21 Wend. 166; Heichew i>. Woodward, 6 Pick. 206; Goodman a. 
 Hamilton, 3 Greene, Iowa, 596 ; Oregon Henderson, 58 Ga. 567 ; Collins v. 
 Steam Nav. Co. v. Winsor, 20 Wal. 64. Locke, 4 Ap. Cas. 674 ; Hedge v. Lowe, 
 
 2 Rousillon V. Rousillon, 14 Ch. D. 47 Iowa, 137; Curtis «. Cokey, 68 N.T. 
 351,369. 300; Ellis K.Jones, 56 Ga., 504; Morris 
 
 s Ante, § 126; Met. Con. 233. v. Colman, 18 Ves. 437; Chesman r. 
 
 * Perkins v. Clay, 54 N. H. 518; Nainby, I Bro. P. C. 234; Whittaker w. 
 
 Saratoga County Bank v. King, 44 N. Y. Howe, 3 Beav. 383 ; Stewart v. Challa- 
 
 87, 91; Guerand v. Dandelet, 32 Md. combe, 11 Bradw. 379; Smalley v. 
 
 561 ; Jenkins v. Temples, 39 Ga. 655 ; Greene, 52 Iowa, 241. 
 
 Treat v. Shoninger Melodeon Co. 35 « DufCy v. Shockey, 11 Ind. 70; 
 
 Conn. 543; Hatcher v. Andrews, 5 Whitney k. Slayton, 40 Maine, 224; 
 
 Bush, 561 ; Jones v. Heavens, 4 Ch. D. Gilm.an v. Dwight, 13 Gray, 356 ; Hitch- 
 
 636 ; Leather Cloth Co. v. Lorsont, Law cock v. Coker, 6 A. & E. 438, 454. 
 
 Rep. 9 Eq. 345; McAlister v. Howell, « Mallanu.May.ll M. &W.653,658. 
 
 196 
 
CHAP. XVIII.] ILLEGAL OR OF EVIL TENDENCY. 
 
 §518 
 
 may be large enougli to render the contract effectual for its 
 lawful purpose, yet not palpably larger; or, as otherwise ex- 
 pressed, not " larger and wider than the protection of the 
 party with whom the contract is made can possibly require." ^ 
 Commonly, or nearly always, the full extent of the State will 
 be too great ;^ but it has been laid down in England,^ and 
 by the Supreme Court of the United States,* that there is no 
 absolute limitation of space. A physician may restrict him- 
 self from a particular town and its vicinity.^ " Within a ra- 
 dius of ten miles of Litchfield " was held good as to dentistr3\^ 
 And in England an agreement was sustained whereby a so- 
 licitor, on selling out his business, undertook not to practice 
 as soHcitor in any part of Great Britain for twenty years 
 without the consent of the purchaser.'' Other Dlustrations 
 appear in the cases cited in the note.^ 
 
 § 518. Other like Agreements. — One's promise not to ex- 
 
 ' Rousillon o. BousiUon, 14 Ch. T). 
 351, 363 ; Hitehcock v. Coker, 6 A. & E. 
 438, 454; Ward v. Byrne, 5 M. & W. 
 548, 561. 
 
 2 More B. Bonnet, 40 Cal. 251 ; Dean 
 V. Emerson, M)2 Mass. 480; Nobles v. 
 Bates, 7 Cow. 307; Taylor v. Blan- 
 chard, 13 Allen, 370. 
 
 ' Konsillon v. BousiUon, supra. 
 
 * Oregon Steam Nav. Co. v. Winsor, 
 20 Wal. 64. 
 
 5 Warfield v. Booth, 33 Md. 63 ; Mc- 
 Clurg's Appeal, 8 Smith, Pa. 51 ; But- 
 ler V. Burleson, 16 Vt. 176 ; Davis v. 
 Mason, 5 T. R. 118. 
 
 * Cook V. Johnson, 47 Conn. 175. 
 
 ' Whittaker v. Howe, 3 Beav. 383. 
 "The question," said Lord Langdale, 
 M. R. "is, whether the restraint ought 
 to be considered as reasonable in this 
 particalar case. The business is that 
 of an attorney and solicitor, which, to a 
 large extent, may be carried on by cor- 
 respondence or by agents, and as to 
 which it has already been decided that 
 a restraint of practice within a distance 
 of one hundred and fifty miles was not 
 an unreasonable restraint. It was de- 
 cided in the case of the surgeon dentist, 
 where the occupation required the per- 
 
 sonal presence of the practiser and the 
 patient at the same place, that a restraint 
 of practice within a distance of one 
 hundred miles was an unreasonable re- 
 straint." p. 394. See also Dendy ;;. 
 Henderson, 11 Exch. 194. 
 
 s Grundy v, Edwards, 7 J. J. Mar. 
 368 ; Archer v. Marsh, 6 A. & E. 959 ; 
 California Steam Nav. Co. v. Wright, 6 
 Cal. 258 ; Dunlop v. Gregory, 6 Selden, 
 241; Bowser v. Bliss, 7 Blackf. 344; 
 Clark V. Crosby, 37 Vt. 188 ; Lauben- 
 heimer v. Mann, 17 Wis. 542; Pierce v. 
 Fuller, 8 Mass. 223 ; Perkins v. Lyman, 
 9 Mass. 522; AUsopp v. Wheatcroft, 
 Law Rep. 15 Eq. 59 ; Horner v. Graves, 
 7 Bing. 735 ; Grasselli v. Lowden, 1 1 
 Ohio State, 349, 357 ; Bunn v. Guy, 4 
 East, 190 ; Price v. Green, 16 M. & W. 
 346 ; Harms v. Parsons, 32 Beav. 328, 
 9 Jur. N. s. 145. A patent being a 
 monopoly, perhaps the general doctrines 
 are qualified when applied to the sale of 
 patented articles. And see Kinsman v. 
 Parkhurst, 18 How. U. S. 289; Billings 
 V. Ames, 32 Misso. 265 ; Costar v. 
 Brush, 25 Wend. 628; Morse Twist 
 Drill, &c. Co. V. Morse, 103 Mass. 
 73. 
 
 197 
 
§ 520 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 ercise his skill and knowledge as an inventor is void.^ It has 
 been adjudged that a dramatic writer may bind himself to 
 produce pieces only for a particular theatre ; ^ still, in reason, 
 such a contract must, to be valid, be limited in time, and 
 otherwise guarded by provisions freeing him from undue re- 
 straint.^ One may lawfully undertake, for a period specified, 
 to manufacture for the person with whom he is contracting, 
 and no other.* So a promise by a physician, selling out his 
 drug store, to send to the purchaser all his prescriptions is 
 valid.^ And a solicitor may lawfully contract with a city cor- 
 poration to give to it his entire exertions and do no other pro- 
 fessional business.® But any agreement between large dealers, 
 meant to control the market and obtain exorbitant prices, is 
 an unlawful conspiracy against trade, and void.^ 
 
 § 519. Consideration. — We have already seen that these 
 contracts require a valuable consideration, as to which there 
 are peculiarities which also have been explained.* 
 
 § 620. Good-will. — The stipulation we are considering is 
 often introduced into the agreement selling the good-will* of 
 a business. A good-will has been curtly defined to be " the 
 probability that the old customers will resort to the old 
 place." ^^ A sale of it simply, and no more, implies no obliga- 
 tion on the part of the seller not to engage in the same busi- 
 ness at another stand in the same neighborhood ; ^^ but there 
 are decisions to the effect that, if the contract of sale is spe- 
 
 1 Albright 17. Teas, 10 Stew.Ch. 171. Wiggins Ferry Co. v. Ohio, &c. Eail- 
 
 2 Morris v. Colman, 18 Ves. 437. way, 72 111. 360. 
 
 8 Consult 2 Story Eq. § 958 and note. "» Ante, § 126, 516 ; Collins i>. Locke, 
 
 * Schwalm v. Holmes, 49 Cal. 665. 4 Ap. Cas. 674 ; Smalley v. Greene, 52 
 
 6 "Ward V. Hogan, 11 Abb. New Cas. Iowa, 241 ; Shober, &c. Co. v. Kerting, 
 478. 107 111. 344 ; Burckhardt v. Burckhardt, 
 
 « Galloway v. London, Law Eep. 4 36 Ohio State, 261. 
 
 Eq. 90. 9 Ante, § 65. 
 
 7 Arnot V. Pittston, &c. Coal Co. 68 M Cruttwell v. Lye, 17 Ves. 335, 346 ; 
 N. Y. 558 ; Craft v. McConoughy, 79 Pearson v. Pearson, 27 Ch. D. 145 ; 
 III. 346; Eairbank v. Leary, 40 Wis. Bradford «. Peckham, 9 R. L 250 ; Por- 
 637 ; Central Ohio Salt Co. v. Gnthrie, ter v. Gorman, 65 Ga. 11, 14. 
 
 35 Ohio State, 666, 672. And see Col- » Porter v. Gorman, supra ; Berga- 
 
 lins V. Locke, 4 Ap. Cas. 674; Western mini v. Bastian, 35 La. An. 60; Moody 
 
 Union Tel. Co. v. Chicago, &c. Railroad, v. Thomas, 1 Disney, 294 ; Moreau ». 
 
 86 111. 246 ; Western Union Tel. Co. v. Edwards, 2 Tenn. Ch. 347. 
 American Union Tel. Co. 65 Ga. 160; 
 
 198 
 
CHAP. XVIII.] ILLEGAL OB OP EVIL TENDENCY. § 521 
 
 cific as to local limits, the seller cannot enter again into the 
 business within the specified locality .^ Assuming his right to 
 re-establish himself in the business, it is probably the better 
 doctrine that, while he may advertise it, and may serve old 
 customers who apply to him, he cannot solicit them individ- 
 ually for their patronage, though there are eminent judicial 
 opinions that he can.^ Clearly, if the sale is compulsory, he 
 can.3 And, whether compulsory or not, he is not forbidden 
 to enter into the service of another person, who, in the same 
 town but not at the same stand, is carrying on the same busi- 
 ness.* It has been held that the sale of the good-will of a 
 school does not obligate the vendor to use personal efforts to 
 influence the attendance of pupils.^ Where the sale is, as is 
 common, accompanied by special stipulations, they will fur- 
 nish the measure of the rights of the parties ; and, as they 
 differ in the several cases; we need not look into details here.^ 
 If the agreement is not to engage in the same business for a 
 specified time, the seller may, on the expiration of the time, 
 solicit his former customers.'^ 
 
 VI. Contracts partaking of Unlawful Conspiracy. 
 
 § 521. Relations of Topic. — In one aspect, all contracts in 
 conflict with the law or public policy are within the scope of 
 this sub-title ; they are combinations of two or more persons, 
 which is the idea of a conspiracy, to do what the law or 
 
 1 Dwight V. Hamilton, 113 Mass Ohio State, 517 ; Grow u. Seligman, 47 
 175, 178; Angier v. Webber, 14 Allen, Mich. 607; Thayer v. Younge, 86 Ind. 
 21 1 ; Munsey v. Butterfield, 133 Mass. 259 ; Mclntyre v. Belchfcr, 14 C. B. n. s. 
 492. 654, 10 Jur. N. s. 239 ; Lewis v. Sea- 
 
 2 Labouchere v. Dawson, Law Rep. bury, 74 N. Y. 409 ; Kemp v. Bird, 5 
 13 Eq. 322 ; Pearson v. Pearson, supra ; Ch. D. 974 ; Garrison v. Nute, 87 111. 
 Leggott V. Barrett, 15 Ch. D. 306; 215; Wiggins Ferry Co. v. Ohio, &c. 
 Richardson v. Peacock, 6 Stew. Ch. 597, Railway, 72 111. 360 ; Baker v. Pott- 
 599. meyer, 75 Ind. 451 ; Curtis v. Gokey, 68 
 
 8 Walker y. Mottram, 19 Ch. D. 355. N. Y. 300; Smith v. Martin, 80 Ind. 
 
 * Grimm v. Warner, 45 Iowa, 1 06. 260 ; Sander v. Hoffman, 64 N. Y. 248 ; 
 
 ' McCord V. Williams, 15 Norris, Richardson v. Peacock, 6 Stew. Ch. 597. 
 
 Pa. 78. ' Hanna v. Andrews, 50 Iowa, 462. 
 
 « For illustrations, see Morean w. Firm Name — As to the right of the 
 
 Edwards, supra ; Baker v. Cordon, 86 purchaser to use the name of the old 
 
 N. C. 116; Morgan v. Perhamus, 36 firm, see Levy t>. Walker, 10 Ch. D. 436. 
 
 199 
 
§ 524 IN GENBBAL WITH ILLUSTRATIONS. [BOOK I. 
 
 public policy forbids. But, for practical convenience, our ex- 
 positions here will be limited much as, in the books, are the 
 civil and criminal wrongs of conspiracy. A conspiracy is not 
 the subject of a civil action until a third person has suffered 
 a damage from something done under it ; then, and not before, 
 he may sue ; and the wrong inflicted, not the combination 
 to do it, is the real foundation of the action.^ But an in- 
 dictment will lie, whether the conspiracy is to injure an indi- 
 vidual or the public, as soon as the wrongful confederacy is 
 entered into, though there is never an overt act committed.? 
 So that one examining the subject of this sub-title will find 
 little help from the civil law of conspiracy, but much from 
 the criminal. Hence, — 
 
 § 522. Doctrine defined. — The doctrine of this sub-title is, 
 that a contract which embodies any indictable confedera- 
 tion, whether to injure the public or an individual, is void as 
 against law ; ^ and, short of this, one merely tending to the 
 same mischief is void as against public policy.* Thus, — 
 
 § 523. Prices. — We have already seen, that any agreement 
 between persons in trade, made to inflate the market and ob- 
 tain for their commodities exorbitant prices, is void as a con- 
 spiracy to injure the public.^ And it is the same of all other 
 like bargains, devised to compel individuals or corporations 
 to pay undue prices for anything, or to create a monopoly.* 
 So — 
 
 § 524. Any Fraud on Public. — No agreement for defraud- 
 ing the public can be valid.' For example, "No man," said 
 Scott, J., "has the right to sell his reputation or skill in any 
 
 1 Savin 11. Roberts, 1 Ld. Kaym.374, public policy, or contrary to good mor- 
 378; Hutchins w. Hutchins, 7 Hill, N. Y. als, — no one of them can maintain a 
 104, 108 ; Herron v. Hughes, 25 Cal. 555. suit thereon against any other. York v. 
 
 2 2 Bishop Crim. Law, § 171, 181, Merritt, 77 N. C. 213; Wight w. Kinds- 
 185,192,197. kopf, 43 Wis. 344. 
 
 3 Ante, § 471. 6 Ante, § 518. 
 
 * Ante, § 473-478. The doctrine, « Marsh v. Russell, 66 N. Y. 288 ; 
 
 nearly in its fall proportions, has been Kelly v. Devlin, 58 How. Pr. 487 ; 
 
 otherwise expressed to be, that, where Woodruff v. Berry, 40 Ark. 251 ; 
 
 two or more parties have united in a Hooker ». Vandewater, 4 Denio, 349; 
 
 transaction to defraud another or others, Stanton v. Allen, 5 Denio, 434. 
 or the public, or the due administration ' People v. Stephens, 71 N. Y. 527. 
 
 of justice, — or, where it was against 
 
 200 
 
CHAP. XVIII.] ILLEGAL OR OF EVIL TENDENCY. § 525 
 
 profession, whatever it may be, and thus enable an unknown 
 party to perpetrate a fraud upon the public in his name ; " so 
 that a contract between two physicians, whereby the one has 
 the other's permission to personate him at his office in medical 
 practice, is void.^ And it is the same of a contract by which 
 one party is to supply the other with domestic sardines, so 
 labelled that they shall appear to have been imported ; for it 
 is an attempt to cheat the public.^ It is even sufiScient that 
 there is a tendency to the public injury ;3 thus, a contract 
 with the president of a bank to buy shares on condition that 
 the purchaser is made cashier tends to injure many persons, 
 therefore it is void.* Such a contract may be deemed also to 
 violate a — 
 
 § 525. Public Trust. — The officers of a corporation, said a 
 learned judge, " have been placed in a position of trust by the 
 stockholders, and to those stockholders they must be faithful. 
 It is a violation of that trust for them to be bought out of 
 office." Therefore, though a trustee of the corporation may 
 resign, his promise to do it for a pecuniary compensation is 
 against public policy and void." Equally void, and for the 
 like reason, is a contract between stockholders by which one 
 of them undertakes for money to vote for a particular person 
 as manager, and to increase the salaries.^ It is the same also 
 of a contract by officers of a railroad corporation to buy lands 
 and locate the projected road and depots on or near them ; 
 they thereby prostitute their trust to their private emolu- 
 ment.'' A fortiori — 
 
 1 Jerome v. Bigelow, 66 111. 452, 454. Union Tel. v. Union Pacific Railway, 1 
 
 2 Mateme v. Horwitz, 50 N. Y. Su- McCrary, 418; St. Louis, &c. Railroad 
 per. (18 Jones & S.) 41. v. Mathers, 104 111. 257 ; Liebke v. 
 
 ^ Ante, § 476. Knapp, 79 Misso. 22 ; Railroad v. Ral- 
 
 * Noel V. Drake, 28 Kan. 265. Sub- ston, 41 Ohio State, 573 ; Williamson v. 
 stantially the same in Guernsey «. Cook, Chicago, &c Railroad, 53 Iowa, 126; 
 120 Mass. 501. Berryman v. Cincinnati Southern Rail- 
 
 5 Forbes v. McDonald, 54 Cal. 98, way, 14 Bush, 755 ; Pixley v. Gould, 13 
 
 100, opinion by Myrick, J. Bradw. 565 ; Wiggins Ferry Co. v. Chi- 
 
 * Woodruff w. Wentworth, 133 Mass. cago, &c. Railroad, 73 Misso. 389; 
 309. Harris v. Roberts, 12 Neb. 631 ; Western 
 
 ' Cook V. Sherman, 4 McCrary, 20. Union Tel. v. Atlantic, &g. Tel. 7 Bis. 
 For like questions, see Pueblo, &c. Rail- 367 ; Cedar Rapids Bank v. Hendrie, 49 
 road V. Taylor, 6 Colo. 1 ; Western Iowa, 402. 
 
 201 
 
§ 528 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 § 526. Governmental Trust. — A governmental trust is 
 within this rule. So that, for example, if a foreign government 
 sends to our country an agent to buy firearms, whereupon 
 one of its consuls residing here agrees with a manufacturer 
 to recommend him to the agent, stipulating for a compensar 
 tion therefor, the stipulation-is void as against public pohcy.^ 
 Beyond this, — 
 
 § 527. Private Fraud on Individual. — Any agreement be- 
 tween two private persons to defraud a third, whether at an 
 auction or elsewhere, is void as being unlawful.^ It is even 
 indictable.' Therefore, within a rule already stated, a con- 
 tract which simply tends to this end is void as against public 
 policy.* For example, where one was asked to recommend to 
 the applicant a " responsible and reliable " builder, and he 
 recommended a builder who promised to pay him, for his 
 " trouble," a sum of money, and who on such recommendation 
 was employed, the court refused to enforce the promise.^ In 
 like manner, one cannot " serve two masters ; " therefore a 
 private agreement between a party and the other party's agent, 
 by which the agent is to act for both, is void.^ And — 
 
 § 528. Auction Sales — are within both private and public 
 considerations. They are a means of converting things into 
 money under urgent circumstances, of settling estates of de- 
 ceased persons, and the like ; so that the interests both of the 
 individual and of the public require them to be conducted 
 with freedom and fairness, and agreements contravening these 
 interests are void. There are some real or apparent differ- 
 ences as to what cases are within this principle. Plainly, if 
 two persons in actual competition intend bidding for an article, 
 then if they agree that one shall abstain from bidding and the 
 
 1 Oscanyan v. Arms Co. 103 U. S. Sanderson, Law Eep. 15 Eq. 229, 234j 
 261, 15 Blatch. 79. And see Ashburner Hamilton v. Scull, 25 Misso. 165; Fen- 
 V. Parrish, 31 Smith, Pa. 52. ton v. Ham, 35 Misso. 409. 
 
 2 Sternburg v. Bowman, 103 Mass. « 2 Bishop Crim. Law, § 198-214. 
 325 ; Harwood v. Knapper, 50 Misso. * Ante, § 473^78, 522. 
 
 456 ; Heineman v. Newman, 55 Ga. 262 ; ^ Holcomb v. Weaver, 136 Mass. 265, 
 
 Powell V. Inman, 8 Jones, N. C. 436; « Atlee k. Fink, 75 Misso, 100; Scrib- 
 
 Bliss ('. Matteson, 45 N. Y. 22 ; Davison ner v. Collar, 40 Mich. 375 ; Lynch v. 
 
 V. Seymour, 1 Bosw. 88; Jackson v. Fallon, 11 R. I. 311. 
 Duchaire, 3 T. R. 551 ; McKewan v. 
 
 202 
 
CHAP. XVin.] ILLEGAL OR* OP EVIL TENDENCY. § 529 
 
 profits shall be divided, the courts will not enforce their bar- 
 gain.^ And this rule extends to all other agreements, in what- 
 ever form, to stifle fair competition ; they are void,^ and in 
 various circumstances are even indictable.^ On the other 
 hand, partners, or persons contemplating a partnership as to 
 the particular thing ; several, who each want a part, and not 
 the whole, of the thing, and are to divide it between them- 
 selves ; and others, whose object is not an undue advantage 
 but a fair purchase, maj^- enter into a valid arrangement for 
 one to bid and the rest abstain.* 
 
 VII. Craming Contracts. 
 
 § 629. Varying Statutes — Common Law. — The criminal 
 offence of gaming, including such heads as wagering, betting 
 on elections, horse-racing, lotteries, and the like, is regulated 
 by somewhat varying statutes in our respective States ; yet 
 slightly, if at all, by the common law.^ Partly on the con- 
 struction and effect of these statutes, partly on direct terms 
 therein, and partly on doctrines of the common law as to the 
 policy of enforcing wagering and gaming contracts, depend, 
 with us, the civil consequences. The obvious fact, therefore, 
 
 1 Doolin ?;. Ward, 6 Johns. 194; eson w. Mallon, 43 N. Y. 147; Gibbs v. 
 Wilbur V. How, 8 Johns. 444; National Smith, 115 Mass. 592. 
 
 Bank of Metropolis v. Sprague, 5 C. E. " Levi v. Levi, 6 Car. & P. 239. 
 
 Green, 159; Jenkins v. Friak, 30 Cal. * Breslin v. Brown, 24 Ohio State, 
 
 586 ; Loyd o. Malone, 23 111. 43 ; Woo- 565 ; National Bank of Metropolis v 
 
 ton V. Hinkle, 20 Misso. 290 ; Sharp v. Spragne, supra ; Jenkins v. Frink, su- 
 
 Wright, 35 Barb. 236; People v. Ste- pra; SmuU w. Jones, 6 Watts & S. 122 
 
 phens, 71 N. Y. 527 ; Singer Manuf. Co. McMinn v. Phipps, 3 Sneed, Tenn. 196 
 
 V. Yarger, 2 McCrary, 583. On this James v. Fulcrod, supra; Bellows v 
 
 point the English doctrine appears to be Russell, 20 N. H. 427 ; Kearney v. Tay- 
 
 the other way. Gallon u. Emuss, 1 Coll- lor, 15 How. TJ. S. 494; Smith o. Green 
 
 yer, 243. lee, 2 Dev. 126 ; Switzer v. Skiles, 3 
 
 2 Gardiner v. Morse, 25 Maine, 140; Gilman, 529 ; Gpode v. Hawkins, 2 Dev. 
 James v. Fulcrod, 5 Texas, 512 ; Hunt Eq. 393 ; Hunt v. Elliott, 80 Ind. 245 ; 
 V. Frost, 4 Cush. 54 ; Hook v. Turner, 22 Maffet v. Ijams, 7 Out. Pa. 266 ; Morri- 
 Misso. 333 ; Jones v. Caswell, 3 Johns, son v. Darling, 47 Vt. 67 ; Marie v. 
 Cas. 29; Thompson ». Davies, 13 Johns. Garrison, 83 N. Y. 14; Danielwitz v. 
 112; Ingram w. Ingram, 4 Jones, N. C. Sheppard, 62 Cal. 339; Mathews v. 
 188; Martin v. Ranlett, 5 Rich. .541; Starr, 68 Ga, 521 ; Smith w. UUman, 58 
 Brisbane i,-. Adams, 3 Comst. 129 ; Atch- Md. 183. 
 
 6 Bishop Stat. Crimes, § 844-966. 
 
 203 
 
§531 IN GENERAL WITH ILLUSTRATIONS. [bOOK I. 
 
 is, that the law differs more or less iu our States, and that 
 one who would properly understand it must study the stat- 
 utes of his own State in connection with the doctrines laid 
 down in such books as the present one. 
 
 § 530. Wager — (Bet). — A wager is an agreement between 
 parties, differing as to an uncertain fact^ or forecast of a 
 future event, that, on the transpiring of what will disclose 
 the truth, a designated sum of money or other thing shall be 
 transferred from the one who is found to be in the wrong to 
 the other who is ascertained to be in the right.^ It implies 
 risk on both sides,^ yet not necessarily equal ; * so that, for ex- 
 ample, the offering of money on a trial of the speed of horses 
 is not a wager.^ The term " bet " is nearly of the same mean- 
 ing,® yet less nicely technical. Another difference, not always 
 observed, may be, that, while wager denotes the contract, bet 
 indicates the thing contracted for." Now, as to the — 
 
 § 531. Common Law of Wager. — In England, from the 
 early times to the present, when no statute has interfered, 
 the courts have deemed it a part of their high functions to 
 enforce all sorts of wagers, except those " which," in the 
 words of Grose, J., " by injuring a third person disturb the 
 peace of society, or which militate against the morality or 
 sound policy of the kingdom."* For example, it was ad- 
 judged to be within the " sound policy of the kingdom " for 
 the Court of King's Bench to serve as a sort of stakeholder 
 between two persons who had made a bet whether or not 
 another person had bought of a fourth a wagon.^ And that 
 great light of the law. Lord Mansfield, presiding over the tri- 
 bunal of Geo. III., received the evidence and directed the 
 
 1 Good v. Elliott, 3 T. R. 693; Pugh Iowa, 481 ; Alvord i-. Smith, 63 Ind. 
 
 V. Jenkins, 1 Q. B. 631. 58, 62, 63. 
 
 ^ For other definitions, see Bouv. « The State v. Welch, 7 Port. 463 ; 
 
 Law Diet. Wager; Merchants Savings, Woodcock v. McQueen, 11 Ind. 14; 
 
 &c. Co. K. Goodrich, 75 111. 554 ; Hamp- Shumate b. Commonwealth, 15 Grat. 
 
 den V. Walsh, 1 Q. B. D. 189, 192. 653. 
 
 3 Quarles v. The State, 5 Humph. ' Bishop Stat. Crimes, § 870, 871. 
 
 561 ; Fisher v. Waltham, 4 Q. B. 889, « Good v. Elliott, 3 T. E. 693, 695; 
 
 898 ; Jordan v. Kent, 44 How. Pr. 206. Da Costa v. Jones, Cowp. 729 ; EamloU 
 
 * Bishop Stat. Crimes, § 871 ; Bates Thackoorseydass v. SoojiimnuU Dhond- 
 
 V. Clifford, 22 Minn. 52. mull, 6 Moore P. 0. 300, 310. 
 
 ' Delier v. Plymouth, &c. Soc. 57 9 Good v. Elliott, supra. 
 
 204 
 
CHAP. XVIII.] ILLEGAL OR OP EVIL TENDENCY. § 532 
 
 jury on tlie question, whicli was the subject of a wager be- 
 tween the parties, whether a third person, who wore the 
 clothes and bore the name of a man, was really a male or a 
 female ! The jury determined that it was a woman. " This 
 case," said his lordship, on a subsequent hearing before the 
 full bench, " made a great noise all over Europe ; and, soon 
 afterwards, I own I was sorry." So it was unanimously 
 decided that the "morality and sound policy of the king- 
 dom " do not require the tribunals to employ themselves in 
 enforcing this kind of wager.^ In our country, some courts 
 have followed the English doctrine, while others^ have held 
 that no wagers are recoverable.'^ If we look at this question 
 in the light of reason, divested of the prejudices which judi- 
 cial precedent has draped around it, we shall see that a wager 
 has no legitimate connection with any affair of life. It is 
 merely a plan by which one man gains and another loses 
 money or its value, without any real consideration, or any 
 benefit to the individual or the community. And on a just 
 view of things, a judge would better serve the State, and 
 more adorn his ofBce, 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. As to the — 
 
 § 532. Consideration for "Wager. — It seems to have been 
 taken for granted that the mutual promises * of the wagering 
 parties satisfy the law's requirement of a consideration.^ But 
 any one who will suffer his mind fully to grasp the ques- 
 tion, and examine it distinctly, will see that it does not. 
 The mutual promises which constitute mutual considerations 
 are those wherein each party stipulates to bestow some- 
 thing of value on the other in exchange for what he receives ; 
 of such sort that, on its being given or tendered by one of 
 
 1 Da Costa v. Jones, supra. Later, son v. Tousley, 16 Minn. 299; Hill v. 
 the statute of 8 & 9 Vict. c. 109, § 18, ICidd, 43 Cal. 615; Merchants Savings, 
 has made all wagers in England void. &c. Co. v. Goodrich, 75 111. 554 ; Bough- 
 Hampden y. Walsh, 1 Q. B. D. 189, 192. ner v. Meyer, 5 Colo. 71; Gridley v. 
 
 2 For example, "Winchester v. Nutter, Dorn, 57 Cal. 78 ; Bishop Stat. Crimes, 
 52 N. H. 507 ; Ball v. Gilbert, 12 Met. § 848. 
 
 397, 399. * Ante, § 76-79. 
 
 8 Met. Con. 239. And see "Wilkin- ^ Jackson v. Colegrave, Carth. 338. 
 
 205 
 
§ 533 IN GENEEAL WITH ILLUSTRATIONS. [BOOK I. 
 
 them, and not otherwise, he will be entitled to maintain a 
 suit against the other for breach of the latter's promise. 
 And, except in these wagering contracts, it was never heard 
 of in the law, that the one party could maintain an action on 
 the other's promise, unless he had' first done or tendered 
 something, or there was an outstanding promise which the 
 other could at some time enforce. Now, where A tells B 
 that he will give him a dollar if Miss W. applied a brush to 
 her teeth yesterday morning, but nothing if she did not ; in 
 response to which, B says he will give A a dollar if she 
 left her teeth uncleansed, yet nothing otherwise, — a wager 
 evidently "not against public policy," if there are any which 
 are not, — either of these parties, who may afterward appear 
 by the proofs to be in the right, may, on the very theory 
 which holds these contracts to be founded on a consideration, 
 instantly, without tendering anything, or performing any- 
 thing, or leaving any liability against himself, sue the other 
 for his dollar. Where now is the consideration? If there 
 was any at first, it has failed ; ^ for we have sifted the whole 
 transaction, and not a particle of it appears. True, there 
 was a promise from each to the other ; but it was of such sort 
 that, when one was called upon to perform, the other's prom- 
 ise had vanished, and it could not remain as the consideration 
 for the promise of him from whom perfoi'mance was de- 
 manded. In other words, the promise of each was to make, 
 on the transpiring of a condition, a gift to the other, not 
 enforceable ; ^ not only were the two promises not so con- 
 nected ^ as to render the one a consideration for the other, but 
 their express terms exclude such a construction. By these 
 terms, if the fact is one way, A is to give B a dollar ; if the 
 other way, B is to bestow a dollar on A ; but, in neither 
 alternative, has the dollar of the one, or the promise of it, 
 any possible connection with the dollar or promise of the 
 other. 
 
 § 633. Gaming, — not necessarily, but often or commonly, 
 includes a wager as one of its elements. In it, " by a bet, 
 
 1 Ante, § 71. 2 Ante, § 77, 82. » Ante, § 88. 
 
 206 
 
CHAP. XVIII.] ILLEGAL OE OP EVIL TENDENCY. § 534 
 
 by chance, by some exercise of skill, or by the transpiring of 
 some event unknown until it occurs, something of value is, 
 as the conclusion of premises agreed, to be transferred from a 
 loser to a winner." ^ In a sort of general way it is, at least 
 under our statutes, deetaed unlawful, and the contract void.^ 
 The principles governing this sort of question already appear 
 in the present chapter ; and the whole subject, in its criminal 
 aspect, has been elucidated by the author in another work.^ 
 Considering that the statutes greatly differ in our States, that 
 expositions of provisions not before both writer and reader 
 are unsatisfactory if not misleading, and that every practi- 
 tioner will be obliged to consult the enactments and decisions 
 of his own State, it is deemed best to extend this sub-title 
 but a little further. 
 
 § 534. " Margins " — " Options." — By common consent, all 
 bargains for the purchase and sale of things— for example, 
 stocks and commodities — where it is the understanding of 
 the parties, whether expressed or not, that the things are not 
 to be delivered, but at the agreed time the "differences" 
 between their market values at the two periods are to be 
 adjusted, and all other transactions of this nature, are illegal 
 or against public policy, to the extent that the courts will 
 not enforce them.* These are all gambling contracts, dis- 
 turbing the courses of trade, and not tolerated by the law.^ 
 But a sale, in good faith, for future, actual delivery is valid,^ 
 even though, at the time of the sale, the seller has not the 
 article in possession.'^ 
 
 1 Bishop Stat. Crimes, § 858. erman v. Buckland, 1 Misso. Ap. 45 ; 
 
 2 Da Costa v. Jones, Cowp. 729, 735. Barnard v. Backhans, 52 Wis. 593 ; 
 8 Bishop Stat. Crimes, § 844-966. Lowry v. Dillman, 59 Wis. 197 ; Rudolf 
 * Irwin V. Williar, 110 U. S. 499; v. Winters, 7 Neb. 125; Dickson v. 
 
 Hentz V. Jewell, 4 Woods, 656 ; Union Thomas, 1 Out. Pa. 278 ; Hawley v. 
 
 Nat. Bank v. Carr, 15 Fed. Rep. 438; Bibb, 69 Ala. 52; Yerkes v. Salomon, 
 
 Kirkpatrick u. Adams, 20 Fed. Rep. 287 ; 11 Hun, 471; Bigelow v. Benedict, 16 
 
 Melchert v. American Union Tel. 3 Mc- Hun, 429 ; North v. Phillips, 8 Norris, 
 
 Crary, 521 ; Tenney v. Foote, 4 Bradw. Pa. 250. 
 
 594; Williams w. Tiedemann, 6 Misso. « Cole k. Milinine, 88 111. 349 ; Kings- 
 
 Ap. 269 ; Webster i: Sturges, 7 Bradw. bury v. Kirwan, 77 N. Y. 612 ; Bumsey 
 
 560; Beveridge K. Hewitt, 8 Bradw. 467 ; v. Berry, 65 Maine, 570; Pixley v. 
 
 Story V. Salomon, 71 N. Y. 420. Boynton, 79 111. 351. 
 
 ^ Pickering v. Cease, 79 HI. 328 ; ' Gregory v. Wendell, 40 Mich. 432. 
 
 Rumsey v. Berry, 65 Maine, 570 ; Wat- See Mann v. Bishop, 136 Mass. 495. 
 
 207 
 
§ 536 
 
 IN GENERAL WITH ILLUSTRATIONS. 
 
 [book I. 
 
 § 535. Aiding — (Loans — Other Contracts in Aid). — One 
 
 who assists another in a violation of law is himself a violator.^ 
 Therefore a loan for the purpose of making a " corner," ^ or 
 for betting on a game/ or a deposit as a " margin," * or the 
 price of land sold to be subdivided and disposed of as prizes 
 in an unlawful lottery,^ or the promised entrance fee to an 
 exhibition where the mutual purpose of the parties is to ena- 
 ble the one to engage in an unlawful horse-race conducted b}' 
 the other,® or the value of services in training a horse for an 
 unlawful race,'^ or of a sewing-machine held under an un- 
 lawful lottery ticket,^ cannot be recovered by suit. And it is 
 the same of all the multitudinous other cases ^ which are 
 within the principle of these. 
 
 VIII. Contracts violative of the Lord's Day. 
 
 § 536. How at Common Law. — Under the common law, 
 the Lord's day, or Christian Sabbath, is a non-judicial day.^" 
 And there are nuisances indictable by reason of being com- 
 
 1 1 Bishop Crim. Law, § 628, 629. 
 
 2 Raymond v. Leavitt, 46 Mich. 447. 
 5 Peck I). Briggs, 3 Denio, 107 ; 
 
 Ruckman v. Bryan, 3 Denio, 340; 
 White V. Buss, 3 Cush. 448 ; McKinnell 
 V. Robinson, 3 M. & W. 434 ; Cannan 
 V. Bryce, 3 B. & Aid. 179. 
 
 * Gregory v. Wendell, 39 Mich. 337. 
 
 s Hooker v. De Palos, 28 Ohio State, 
 2.^1, 2.56. Compare with Rose v. Mitch- 
 ell, 6 Colo. 102, where the learned court 
 deems the better doctrine to be, that, for 
 the seller to be barred of his recovery, it 
 is not sufficient for him to know of the 
 unlawful purpose, he must participate 
 in the buyer's unlawful act, or intention- 
 ally aid him therein. And see McGav- 
 ock u. Puryear, 6 Coldw. 34. The an- 
 swer to which view is, that one who sells 
 a thing, knowing it to be bought for an 
 unlawful use, does participate in such 
 use. A druggist, for example, who fur- 
 nishes arsenic to one whom he knows to 
 be buying it to murder his wife there- 
 with, becomes a participant in the mur- 
 der if it takes place ; or, if it does not 
 
 208 
 
 take place, a participant in the criminal 
 misdemeanor of procuring the arsenic 
 with the murderous intent. And see 
 Tatum V. Kelley, 25 Ark. 209. Com- 
 pare also with Kittle v. De Lamater, 4 
 Neb. 426 ; Mosher v. Griffin, 51 111. 184 ; 
 Oxford Iron Co. v. Spradley, 51 Ala. 
 171,175; Wallace v. Lark, 1 2 S. C. 576 ; 
 post, § 547. 
 
 6 Coraly V. Hillegass, 13 Norris, Pa. 
 132, 138. 
 
 ' Mosher v. Griffin, 51 111. 184. See 
 Harris v. White, 81 N. Y. 532. 
 
 8 Funk V. Gallivan, 49 Conn. 124. 
 
 9 For example, Lowe v. Toung, 59 
 Iowa, 364; In re Green, 7 Bis. 338; 
 Colderwood v. McCrea, 11 Bradw. 543 ; 
 Higginson v. Simpson, 2 C. P. D. 76 ; 
 Beeston v. Beeston, 1 Ex. D. 13 ; Wil- 
 liamson V. Baley, 78 Misso. 636 ; Bald- 
 win V. Flagg, 9 Stew. Ch. 48. 
 
 10 1 Bishop Crim. Proced. §207; 
 Swann v. Broome, 1 W. Bl. 526, 531, 3 
 Bur. 1 595 ; Story v. Elliot, 8 Cow. 27 ; 
 Mackalley's Case, 9 Co. 65 6, 66 b. 
 
CHAP. XTIIl.] ILLEGAL OR OP EVIL TENDENCY. § 538 
 
 mitted on this day,i while yet no single act of Sabbath-break- 
 ing is a crime. The common law would not have been in- 
 consistent with itself if it had held the more reprehensible 
 sorts of bargaining to be against public policy when conducted 
 on the Lord's day, but the author has discovered nothing of 
 this in the books ; and, as general doctrine, it is abundantly 
 settled that a Sunday contract is good when it does not come 
 in conflict with any statute.^ Hence, — 
 
 § 537. Under Statutes. — The statutes, differing considera- 
 bly in our States, and not exactly following in their terms 
 the English ones, constitute the sole basis of the invalidity of 
 Sunday contracts. The principles on which they operate to 
 this end were stated in the opening part of this chapter.* 
 Any act of contracting which is within the penalties of these 
 statutes,* and any executory contract the consideration for 
 which is something unlawfully done on the Lord's day,^ is 
 void. In another work, the author has explained these stat- 
 utes in their criminal aspect, and to some degree in their civil, 
 and to it he refers the readei'.® The caution, often repeated, 
 applies here, that the practitioner should consult the particular 
 statutory terms and adjudications of his own State. 
 
 § 538. " Ordinary Calling." — Under a statute forbidding 
 persons to do on the Lord's day what is within their " ordi- 
 nary calling," a contract of sale of goods, made by one who 
 does not carry on the business of selling, is valid.'' And so is 
 
 ' 2 Bishop Crim. Law, § 965 ; Bishop Ala. 281 ; Hill «. Sherwood, 3 Wis. 343 ; 
 
 Dir. & F. § 662. Love v. Wells, 25 Ind. 503 ; Pattee v. 
 
 2 Bloom y. Richards, 2 Ohio State, Greely, 13 Met. 284; Merriam w. Stearns, 
 
 387 ; Batsford v. Every, 44 Barb. 618 ; 10 Cush. 257 , Sellers v. Dugan, 18 
 
 Eex V. Whitnash, 7 B. & C. 596 ; Drury Ohio, 489 ; Fennell v. Ridler, 5 B. & 0. 
 
 V. Defontaine, 1 Taunt. 131 ; Richmond 406. 
 
 V. Moore, 107 111. 429 ; Horacek v. Keeb- ^ siade v. Arnold, 14 B. Monr. 287 ; 
 
 ler, 5 Neb. 355; More v. Clymer, 12 Morgan r. Bailey, 59 Ga. 683. 
 Misso. Ap. 11 ; Hellams v. Abercrombie, ® 2 Bishop Crim. Law, § 950-970. 
 
 15 S. C. 110. ' Drury v. Defontaine, 1 Taunt. 131 ; 
 
 2 Ante, § 471, 472. Merritt v. Earle, 31 Barb. 38 ; Sanders 
 
 * Chestnut v. Harbaugh, 28 Smith, v. Johnson, 29 Ga. 526; Kaufman v. 
 
 Pa. 473; Pike v. King, 16 Iowa, 49; Hamm, 30 Misso. 387 ; Allen v. Gardi- 
 
 Sayre v. Wheeler, 31 Iowa, 112; Tucker ner, 7 R. I. 22 ; Moore v. Murdock, 26 
 
 w. West, 29 Ark. 386; Clough v. Gog- Cal. 514; Mills w. Williams, 16 S. C. 
 
 Rins, 40 Iowa, 325 ; Sayre v. Wheeler, 32 593. 
 lowaj 559; Hussey v. Roquemore, 27 
 
 U 209 
 
§ 542 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 a mortgage 1 or promissory note,^ executed on Sunday, in a 
 transaction outside of the maker's " ordinary calling." 
 
 § 539. " Common Labor " — is the term in some of the 
 statutes, and there are differences of judicial opinion as 
 to what contracts are within it.^ A Sunday contract is 
 not such "labor" as "disturbs the peace and good order of 
 society." * 
 
 § 540. " Labor, Business, "Work " — are explained in the 
 other book mentioned.^ Affixing one's name to a bond is 
 " business," ^ so is the loaning of money .'^ The driving of a 
 street-railway car is " labor." * These statutes commonly ex- 
 cept what is done from — 
 
 § 541. " Necessity or Charity," — explained also in the other 
 work.8 So that, if a contract within the general inhibition is 
 made from " necessity " or from " charity," it is good ; ^^ other- 
 wise, not.i^ 
 
 § 542. Ratification — New Contract. — The void Sunday 
 contract is sometimes spoken of by the courts as susceptible 
 of " ratification " on a subsequent week-day .^^ But the better 
 form of expression is, that, as it is void and not voidable, 
 there can be no technical ratification of it ; ^^ yet a new con- 
 tract, express or implied, may be made on the same subject, 
 as though nothing had been done on Sunday.^* At the same 
 
 1 Hellams v. Abererombie, 15 S. C. rison v. Colton, 31 Iowa, 16; Smitb v. 
 110. And see 2 Bishop Grim. Law, Case, 2 Oregon, 190 ; Perkins v. Jones, 
 § 957, 958. 26 Ind. 499 ; Banks v. Werts, 13 Ind. 
 
 2 Sanders v. Johnson, 29 Ga. 526. 203 ; Wilson v. Milligan, 75 Misso. 41 ; 
 » 2 Bishop Grim. Law. § 954. Kuhns v. Gates, 92 Ind. 66. 
 
 * Eichmond v. Moore, 107 111. 429. ^ Post, § 614. 
 
 s 2 Bishop Grim. Law, § 956. " Day v. McAllister, 15 Gray, 433; 
 
 6 De Forth v. Wisconsin, &c. Kail- Ladd v. Rogers, 11 Allen, 209; Bradley 
 
 road, 52 Wis. 320. v. Eea, 14 Allen, 20 ; Tucker v. West, 
 
 ' Troewert v. Decker, 51 Wis. 46. snpra; Meriwether u. Smith, 44 Ga. 541 ; 
 
 8 Day ti. Highland Street Railway, Eyno v. Darby, 5 C. E. Green, 231 ; 
 
 135 Mass. 113. Finn v. Donahue, 35 Conn. 216 ; Patew. 
 
 « 2 Bishop Grim. Law, § 959, 960. Wright, 30 Ind. 476 ; Bradley v. Rea, 
 
 1° Stewart v. Davis, 31 Ark. 518; 103 Mass. 188; Butler ». Lee, 11 Ala. 
 
 Philadelphia, &c. Railroad v. Lehman, .885; Eainey v. Capps, 22 Ala. 288; 
 
 56 Md. 209, 226 ; Aldrich v. Blackstone, Pope v. Linn, 50 Maine, 83 ; Beeves u 
 
 1 28 Mass. 148. Butcher, 2 Vroom, 224 ; Kountz v. Tnce, 
 
 11 Whelden v. Ghappel, 8 E. I. 230 ; 40 Missis. 341 ; Williams v. Paul, 6 
 
 Anonymous, 12 Abb. N. Gas. 458. Bing. 653 ; Simpson v. NichoUs, 3 M. & 
 
 ^ Tucker v. West, 29 Ark. 386 ; Har- W. 240, 244 ; Van Hoven v. Irish,- 3 
 
 210 
 
CHAP. XVm.] ILLEGAL OR OF EVIL TENDENCY. § 544 
 
 time, the Sunday transaction will in some circumstances ren- 
 der a new contract practically difi&cult or impossible. Thus 
 it has been held that, if money is borrowed on Sunday, — a 
 transaction which, it appears, vests the ownership in the bor- 
 rower,* — the law will create in favor of the lender no promise 
 of repayment.^ Nor, it has been further held, will any ex- 
 press promise of repayment, made afterward, avail the lender. 
 The loan is gone.* But, where one makes on Sunday a void 
 promise to pay to another a specific indebtedness, there may 
 still be a recovery on the original transaction.* 
 
 § 543. Date — (Third Persons). — The dating of a contract 
 on a week-day, when it is really executed on Sunday, does 
 not render it valid.^ Still, in favor of an innocent party, an 
 indorsee, assignee, or other person sustaining a like relation 
 will, if he bona fide and for a valuable consideration acquires 
 his interest on a week-day, hold the contract as good.® Nor, 
 if entered into on a week-day, is it ill because dated or to be 
 performed on Sunday,'' unless something unlawful is then to 
 be done^ 
 
 § 544. Delivery. — As the efficacy of a legal instrument is 
 imparted by its delivery, the contract may be good though 
 
 McCrary, 443 ; Rosenblatt v. Townsley, The Wisconsin court held, that, if on 
 
 73 Misso. 536; Winfield v. Dodge, 45 Sunday goods are sold on credit and 
 
 Mich. 355. delivered, then on a secular day the 
 
 1 Post, § 545. purchaser promises to pay for them, the 
 
 * Troewert v. Decker, 51 Wis. 46. latter promise can be enforced. Mel- 
 
 » Meader v. White, 66 Maine, 90. choir v. McCarty, 31 Wis. 252. 
 
 I am not quite sure that all courts will * Sayre v. Wheeler, 31 Iowa, 112. 
 
 hold the law in this way. See the cases See Miller v. Lynch, 38 Missis. 344. 
 
 cited in previous notes to this section. * Ante, § 178; Heller v. Crawford, 
 
 And that parties to an illegal contract 37 Ind. 279; Parker v. Pitts, 73 Ind. 
 
 may recede therefrom and place them- 597. 
 
 selves in statu quo, ante, § 489. The « Evansville v. Morris, 87 Ind. 269 ; 
 
 right to rely on the illegality of the Sun- Leightman v. Kadetska, .58 Iowa, 676; 
 
 day contract comes from the law; and Johns v. Bailey, 45 Iowa, 241 ; Begbie «. 
 
 we have seen the doctrine to be, that one Levy, 1 Tyrw. 130 ; Heise v. Bumpass, 
 
 may waive, by his promise, and without 40 Ark. 545. See Dillingham v. Blood, 
 
 a fresh consideration, a defence which 66 Maine, 140. 
 
 the law has given him. Ante, § 94-98. ' Stacy v. Kemp, 97 Mass. 166 ; AI- 
 
 Why, then, may not the borrower, on a dridge v. Decatur Branch Bank, 17 
 
 week-day, when his act is valid, waive Ala. 45 ; Lamore v. Frisbie, 42 Mich. 
 
 the defence of the Sunday invalidity, 186. 
 
 and, by a promise of payment, bind « Smith w. Wilcox, 24 N. T. 353. 
 
 himself to do what honesty demands? 
 
 211 
 
§ 547 IN GENERAL WITH ILLUSTRATIONS. [bOOK I. 
 
 written and signed on Sunday, if delivered on another day. 
 But a promissory note signed by two makers on Sunday, and 
 on a week-day delivered by one of them, will not bind the 
 other maker, for the Sunday authorization to deliver it was 
 void.2 
 
 § 545. Executed. — When a Sunday contract has been exe- 
 cuted, — that is, performed, — money paid and goods trans- 
 ferred under it cannot be recovered back.^ It is so even 
 of a deed of land into which the grantee has entered ; the 
 courts will not interfere with his possession.* 
 
 § 546. Sunday Payment. — Money paid on Sunday in 
 discharge of a debt, and retained afterward, is effectual 
 for the purpose.^ 
 
 IX. Contracts contrary to the Statutes in Regulation of 
 Business. 
 
 § 547. In Brief. — The doctrines of the last sub-title are 
 applicable to this. And the rule is, that, when a statute for- 
 bids a particular business generally, or to unlicensed persons, 
 any contract made in such business by one not authorized, or 
 made with the view of violating the statute, is void.^ Within 
 
 1 Prather ». Harlan, 6 Bash, 185 
 Dohoney v. Dohoney, 7 Bnsh, 217 
 Sherman v. Eoberts, 1 Grant, Pa. 261 
 
 Greene v. Godfrey, 44 Maine, 25 ; Shu- 
 man V. Shuman, 3 Casey, Pa. 90 ; Kin- 
 ney V. McDermot, 5.5 Iowa, 674. But 
 
 Goss w. Whitney, 24 Vt. 187 ; Hilton v. see Tucker v, Mowrey, 12 Mich. 378; 
 
 Houghton, 35 Maine, 143. See Mc- Smith u. Bean, 15 N. H. 577; Sumner 
 
 Galop V. Hereford, 4 La. An. 185; w. Jones, 24 Vt. 317 ; Brazee ». Bryant, 
 
 Bryant v. Booze, 55 Ga. 438 ; Tucker- 50 Mich. 136. 
 
 man v. Hinkley, 9 Allen, 452; Dick- * Ellis w. Hammond, 57 Ga. 179. 
 
 inson v. Richmond, 97 Mass. 45 ; Stack- 6 Johnson v. Willis, 7 Gray, 164 ; 
 
 pole V. Symonds, 3 Fost. N. H. 229; Lamore ». Trisbie, 42 Mich. 186. 
 
 Clouffh V. Davis, 9 N. H. 500 ; Gibbs, 6 Langton v. Hughes, 1 M. & S. 593; 
 
 &c. Manuf. Co. v. Brucker, 1 1 1 U. S. 597 ; Decell v. Leiventhal, 57 Missis. 331 ; An- 
 
 King V. Fleming, 72 111. 21 ; The State v. ding v. Levy, 57 Missis. 51 ; Melchoir v. 
 
 Young, 23 Minn. 551 ; Hall v. Parker, McCarty, 31 Wis. 252 ; Johnson v. Hu- 
 
 37 Mich. 590. lings, 7 Out. Pa. 498 ; Tedrick w. Hiner, 
 
 2 Davis i>. Barger, 57 Ind. 54. 61 111. 189; Solomons v. Chesley, 58 
 
 8 Ante, § 509 and note ; post, § 627 ; N. H. 238 ; Walker v. United States, 106 
 
 Chestnut v. Harbaugh, 28 Smith, Pa. U. S. 413; Creekmore v. Chitwood, 7 
 
 473; Finn v. Donahue, 35 Conn. 216; Bush, 317; Hubbell ti. Flint, 13 Gray, 
 
 tfhler V. Applegate, 2 Casey, Pa. 140 ; 277. 
 212 
 
CHAP. XVIII.] ILLEGAL OR OP EVIL TENDENCY. § 549 
 
 this principle, is a sale of goods to be used in the business, 
 from one who has knowledge of the proposed use.^ 
 
 § 548. Elsewhere. — The various statutes of this sort — 
 particularly those which regulate liquor selling,^ hawking 
 and peddiing,^ dealing as a merchant,* and some other like 
 things ^ — are considered bj' the author in his " Statutory 
 Crimes." Something there will be found as to the contract.* 
 
 § 549. The Doctrine of this Chapter restated. 
 
 The law, for convenience, for adaptation to our infirmities, 
 and to some degree from necessity, has, besides its doctrines 
 of fundamental right, rules more or less technical, and a policy 
 of the like sort. So it must refuse to enforce, or in other 
 words it must hold void, contracts which violate such rules or 
 policy. A fortiori, it cannot recognize as valid any under- 
 taking to do what fundamental doctrine or legal rule directly 
 forbids. Nor can it give effect to any agreement the making 
 whereof was an act violating law. So that, in short, all 
 stipulations to overturn — or in evasion of — what the law has 
 established ; all promises interfering with the workings of the 
 machinery of the government in any of its departments, or 
 obstructing its officers in their official acts, or corrupting 
 them ; all, detrimental to the public order and public good, 
 in such manner and degree as the decisions of the courts have 
 defined ; all, made to promote what a statute has declared to 
 be wrong, — are void. If a court should enforce them, it 
 would employ its functions in undoing what it was estab- 
 lished to do. The act would be in the nature of suicide. 
 
 1 Ante, § 535; Langton ». Hughes, » lb. § 1071-1088. 
 
 supra; Tolman v. Johnson, 43 Iowa, * lb. § 1090-1092. 
 
 127 ; Glass v. Alt, 17 Kan. 444. See ^ lb. § 1093-1098. 
 
 Dillingham v. Blood, 66 Maine, 140. » Particularly at § 1030, 1031. 
 
 « Bishop Stat. Crimes, § 983-10706. 
 
 213 
 
§ 562 IN GENERAL WITH ILLUSTEATIONS. [BOOK I. 
 
 CHAPTER XIX. 
 
 THE CONSTITUTIONAL PBOTECTION OF THE OBLIGATION OF 
 
 CONTEACTS. 
 
 § 550. Introdnction. 
 
 S51-554. General Doctrine. 
 
 555-564. Parties and Contract. 
 
 565, 566. Laws under which Contract made. 
 
 567-575. Laws impairing or not. 
 
 576. Doctrine of Chapter restated. 
 
 §550. How Chapter divided. — We shall Consider, I. The 
 General Doctrine ; II. The Parties and the Contract ; III. 
 The Laws under which the Contract is made ; IV. Subse- 
 quent Laws as impairing or not the Obligation. 
 
 I. The General Doctrine. 
 
 § 551. The Provision. — The Constitution of the United 
 States binds the States, not the United States,^ by the pro- 
 vision that "no State shall . . . pass any . . . law impairing 
 the obligation of contracts." ^ Upon this — 
 
 § 552. Nature of Adjudications. — There have been multi- 
 tudes of adjudications in the State tribunals, and enough in 
 those of the United States to render the doctrines in the main 
 settled. The ultimate authority in these cases, to which the 
 courts of the States are required to yield, is in the Supreme 
 Court of the United States ; ^ so that no decisions in conflict 
 with those of this tribunal are in force. From the first, the 
 
 > Evans v. Eaton, Pet. C. C. 322. v. Putnam, 3 Gray, 551, 554 ; Boyle v. 
 
 2 Const. U. S. art. 1, § 10. Zacharie, 6 Pet. 635. 
 
 ' Bishop Written Laws, §356; Marsh 
 
 214 
 
CHAP. XIX.] OBLIGATION OP CONTRACTS. § 655 
 
 great importance and wide effect of this provision were recog- 
 nized, judges have expounded it with multitudes of words, 
 there have been many dissenting opinions, and the dicta are 
 a wilderness of entanglement, of discord, and of contradiction. 
 Still, on the whole, the results are such as, on a review, are 
 found to accord with sound reason and common sense. In 
 the nature of things, it would have been impossible that abso- 
 lutely nothing should be adjudged by the tribunal of last re- 
 sort contrary to reason. 
 
 § 653. How in this Chapter. — A work so condensed as the 
 present could not, whatever its author might desire, travel 
 anew over the sinuous ways of past argumentation. Nor can 
 it profitably refer to everything found in the reports relating 
 to each particular question ; but, by the help of the digests, 
 the reader can readily supply for himself the omissions, 
 whether of cases or of adjudged points. We shall, therefore, 
 endeavor to forget that the subject is one of vast magnitude, 
 and take a condensed view of it in the simpler light of such 
 common sense as God has supplied for the occasion. 
 
 § 654. Doctrine defined. — The doctrine derivable from the 
 provision under consideration is, that, whenever a contract, 
 between whatever parties, and on whatever subject, has been 
 entered into, the mutual obligations which the law with re- 
 ference whereto it was made imposed on the parties, cannot 
 be cast off or diminished by any subsequent enactment in the 
 same State, or any enactment in any other ; while yet the 
 State legislatures are at liberty to modify at will the reme- 
 dies, but not in a manner or degree to impair the obligation 
 itself. More minutely, — 
 
 II. The Parties and the Contract. 
 
 § 555. Parties. — Contracts between any parties capable of 
 binding themselves are within this provision ;i as, between 
 two individuals,^ between corporations or a corporation and 
 
 1 Green v. Biddle, 8 Wheat. 1. 
 
 2 HillJ V. Carlton, 74 Maine, 156 ; Holt v. Patterson, 74 N. C. 650. 
 
 215 
 
§ 577 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 an individual,^ between two States,^ between a State and an 
 individual or corporation.^ 
 
 § 566. What Contracts. — It is believed that the word 
 " contracts," in this provision, is employed in its wide mean- 
 ing ; for example, as including even judgments.* And the 
 reason is, that there is no principle to justify interpretation in 
 distinguishing classes with regard thereto. In the Statute of 
 Frauds and other like statutes, we have seen, the word denotes 
 the actual contract and no more, not extending to that created 
 by law.^ This is because only actual contracts are within the 
 dangers which those statutes were enacted to avoid ; and it 
 would do violence to the legislative purpose, and work a par- 
 tial defeat of the law itself, to extend them to created con- 
 tracts. But there is no ground of reason for making a like 
 distinction under the constitutional provision now in contem- 
 plation ; so that, in just principle, on a question little illu- 
 mined by decisions, though constitutions are interpreted 
 similarly to statutes,® this provision should be held to pro- 
 tect as well the bargains which the law makes for men as 
 those which they construct for themselves.'' Again, — 
 
 § 557. Executory and Executed. — This guaranty is, for 
 the like reason, construed to extend equally to executory and 
 to executed contracts ; ^ yet to nothing which, by whatever 
 name called, the law does not recognize as a contract. For 
 example, the executory agreement to marry is undoubtedly 
 within the protection of this provision ; but the executed 
 agreement — that is, the marriage — is, though commonly 
 spoken of in the older books and sometimes in the later as a 
 contract, not such in fact, therefore to the status of marriage 
 
 1 Giimian v. Union Canal, 109 U. S. Wal. 610; Moser v. White, 29 Mich. 
 
 401 ; Louisiana v. St. Martin's Parish, 59 ; O'Brien v. Young, 95 N. Y. 428. 
 Ill tr. S. 716; Hovelman v. Kansas 6 Ante, § 191-199. 
 
 City Horse Railroad, 79 Misso. 632. ^ Bishop Written Laws, § 92. 
 
 ^ Green v. Biddle, supra ; Spooner ' See Story Const. § 1377. 
 f. McConnell, 1 McLean, 337. s Harrington v. Tennessee, 95 U. S. 
 
 8 Fletcher v. Peck, 6 Cranch, 87 ; 679, 683 ; Green v. Biddle, 8 Wheat. 1 ; 
 
 Terrett v. Taylor, 9 Cranch, 43 ; Pawlet Fletcher v. Peck, 6 Cranch, 87, 137 ; 
 
 V. Clark, 9 Cranch, 292 ; Hart o. Lam- Dartmouth College v. Woodward, 4 
 
 pbire, 3 Pet. 280. Wheat. 518, 641, 651. 
 
 * Ante, § 141 ; Gunn v. Barry, 15 
 
 216 
 
CHAP. XIX.] OBLIGATION OF CONTRACTS. § 659 
 
 this constitutional provision gives no protection.^ So, on the 
 other hand, there are various executory agreements which the 
 law refuses to carry into effect — as, for example, those with- 
 out consideration — made valid by being executed. An illus- 
 tration of this is a gift, which, while a mer« promise, is of no 
 effect, but it becomes good on the thing being delivered.^ It 
 is believed that this constitutional protection embraces every 
 class of executed contracts which the law holds to be valid, 
 however and on whatever ground invalid while executory ; 
 though not every question within this doctrine has been ad- 
 judged.3 But — 
 
 § 558. Vested. — The mere fact that a right has become 
 vested does not bring it within the protection we are consid- 
 ering ; to be so, it must have come by contract.* 
 
 § 659. Corporation Franchise. — A Corporation is an artifi- 
 cial creation of the law, embodying a part of the legal capa- 
 bilities and responsibilities of an unincorporate man.^ It is 
 often spoken of in the books as "immortal." But this means 
 only that it has " the capacity of perpetual succession," to 
 quote from Kent ; ^ or, as Blackstone expresses it, that it 
 " may endure forever ; " ^ in other words, that it does not die 
 with the individual corporators. Still, by the common law, 
 as it came with our forefathers from England, it might be put 
 an end to by a statute, by the death of all its members in cer- 
 tain cases, by the surrender of its franchise, or by forfeiture of 
 its charter.8 It is the province of a creator to bring death to 
 the thing created ; so does God to man, and so in reason can 
 the legislative power to the corporation to which it has given 
 existence. Never did one, standing by the death-bed of his 
 dying friend, accuse God ot having broken a "contract." 
 But the doctrine has widely permeated our judicial decisions 
 
 1 1 Bishop Mar. & Div. § 3, 8, 665- * Charles Rirer Bridge v. Warren 
 669. Bridge, II Pet. 420, 539, 540; Floren- 
 
 2 Ante, § 82 ; Farrington w. Ten- tine v. Barton, 2 Wal. 210. 
 nessee, supra. * 1 Bishop Crlm. Law, § 417. 
 
 * Consult and compare Bonaparte v. ° 2 Kent Com. 267. 
 
 Camden, &c. Kailroad, Bald. 205 ; Vin- .^ 1 Bl. Com. 484. 
 
 cennes TJniversity v. Indiana, 14 How. * 1 Bl. Cora. 485 ; 2 Kent Com. 
 
 U. S. 268; Farrington v. Tennessee, 305. 
 supra. 
 
 217 
 
§ 559 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 that, as to private corporations, such as those for establishing 
 banks, railroads, institutions of learning, private charities, 
 and the like, the act of incorporation is, after acceptance by 
 the corporators, a contract, which can be neither modified nor 
 taken away except by their consent.^ In just principle, it 
 should be treated as being in fact, what on its face it is, 
 a law, subject to repeal like any other law, yet, during its con- 
 tinuance, providing special rules, differing more or less from 
 the general ones, under which the corporators are permitted 
 to conduct a designated business. If, in such business, they 
 make a contract, it is protected from violation by our con- 
 stitutional guaranty; 2 but, in reason, the incorporating act 
 may be repealed, whereupon the affairs of the corporation 
 must be closed and the effects distributed, just as the trans- 
 actions of a man may be put an end to by death, when 
 his estate will be settled up. Whether or not the legisla- 
 ture has also the power to modify the act of incorporation 
 against the will of the corporators is a somewhat different 
 question ; but, if the act itself is not a contract, it is difficult 
 to say that its legislative modification violates the nonentity 
 of a non-existing contract, whatever else it does. And there 
 are cases which, on one foim of reasoning or another, give 
 strength to this view.^ Moreover, as fundamental doctrine, 
 dwelling in the nature of things, one legislature cannot bind 
 a future one ; * therefore, should even the incorporating act 
 declare itself irrepealable, thus endeavoring to become the 
 rule of action for the corporators to the end of time, this 
 declaration would be a nullity because made without author- 
 ity. Hence, even if we begin by assuming the incorporating 
 
 1 Michigan State Bank v. Hastings, ^ Vincennes University v. Indiana, 
 
 1 Doug. Mich. 225 ; Commercial Bank 14 How. U. S. 268 ; Curran v. Arkan- 
 
 V. The State, 6 Sm. & M. 599 ; Dart- sas, 15 How. U. S. 304. 
 mouth College v. Woodward, 4 Wheat. ^ Mechanics, &c. Bank v. Debolt, 1 
 
 518; Providence Bank w. Billings, 4 Pet. Ohio State, 591, 598; Toledo Bank u. 
 
 514; State Bank v. Knoop, 16 How. Toledo, 1 Ohio State, 622 ; The State p. 
 
 U. S. 369 ; Dodge v. Woolsey, 18 How. Southern, &c. Railroad, 24 Texas, 80. 
 
 U. S. 331 ; Jefferson Branch Bank v. And see Spring Valley Water-works ». 
 
 Skelly, 1 Black, 436 ; The Binghamton Schottler, 110 U. S. 347. 
 Bridge, 3 Wal. 51 ; Young v. Harrison, * Bishop Written Laws, §31, 147. 
 
 6 Ga. 130 ; People v. Manhattan Co. 9 
 Wend. 351. 
 
 218 
 
CHA?. XIX.] OBLIGATION OP CONTRACTS. § 561 
 
 act to be within the constitutional protection, we next find its 
 assumed stipulation of irrevocability to be void as contrary to 
 the nature of things, — an obstacle which a written constitu- 
 tion is equally powerless with a statute to overcome. Or, if 
 we do not press this argument so far, it teaches us that the 
 constitution should not be construed as attempting to subvert, 
 in this instance, the nature of things. Still, — 
 
 § 560. Reservation of Power. — If we assume that the act 
 of incorporation is a contract, its exemption from repeal or 
 modification will not exist where the act itself, or a clause in 
 the constitution or statutes of the incorporating State, de- 
 clares it to be subject thereto.^ As this sort of contract, like 
 any other, survives all changes of government,^ and as we 
 hope for the continued life of the Constitution of the United 
 States, many of our State legislatures have taken advantage 
 of this principle to protect future generations, and even their 
 own, from what may prove to be intolerable burdens. No 
 one can foresee with what tenacity judicial error may be ad- 
 hered to in the future ; and, if it is really and perpetually 
 true that any foolish legislature can bind the people of their 
 State forever, so that neither a new constitution nor a stat- 
 ute can disinthrall them, — if it can create an artificial 
 monster which no power can ever thereafter slay, — it is 
 but the highest wisdom, even higher than that from which 
 this clause in the Constitution of the United States pro- 
 ceeded, to do what can be done to avert the terrible conse- 
 quence. Happily, — 
 
 § 561. PubUc Corporations. — It is uniformly held that the 
 foregoing doctrine does not extend to acts creating corpora- 
 tions " for public purposes only, such as cities, towns, parishes, 
 and other public bodies." ^ The legislature may, at will, 
 
 1 Greenwood v. Freight Co. 105 Pa. 452 ; "Wales v. Stetson, 2 Mass. 143, 
 
 U. S. 13; Sherman v. Smith, 1 Black, 146. 
 
 587 ; Delaware Railroad v. Tharp, 5 " Dartmouth College v. Woodward, 
 
 Barring. Del. 454; Bangor, &c. Hail- 4 Wheat. 518. 
 
 road V. Smith, 47 Maine, 34; The State ^ story Const. § 1393, referring to 
 
 V. Person, 3 Vroom, 134 ; In re Lee & Terrett v. Taylor, 9 Oranch, 43, 52 ; Dart- 
 
 Oo.'s Bank, 21 N. Y. 9 ; Commonwealth mouth College v. Woodward, 4 Wheat 
 
 V. Fayette County Railroad, 5 Smith, 518, 663, 694. 
 
 219 
 
§ 564 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 create, modify, or abolish such corporations.^ But contracts 
 made by them are protected like any other.^ 
 
 § 562. Governmental OfBcera — are not, as we have seen, 
 within the protection of this provision in respect of their 
 offices and salaries.^ 
 
 § 563. Contracts by State — (Grants — Taxation). — Though, 
 in just principle, yet contrary to the usual course of adjudica- 
 tion, a private act of incorporation is not a contract,* still, 
 both in reason and on authority, a State is competent to enter 
 into contracts, the obligation whereof it cannot impair.^ Of 
 this sort, for example, is a grant of lands.^ And it is the 
 same of a provision in the grant that the lands shall not be 
 taxed.'' So also a State may, for a valuable consideration, 
 surrender other rights of taxation.* But a mere special stat- 
 ute exempting certain property is not a contract, and it may 
 be repealed at the legislative pleasure.^ It has been ques- 
 tioned, with great force of reasoning, whether a State legis- 
 lature has the power thus to surrender its right of taxation, 
 so as to bind future legislatures, but the decisions are as just 
 stated. Beyond this, — 
 
 § 564. Police Power of State. — It is settled, as well on 
 authority as in reason, that a legislature cannot bind its suc- 
 cessors to forbear the exercise of those governmental func- 
 tions which they may deem needful to preserve the good 
 order, happiness, health, or morality of the people.^" So that, 
 
 1 Bishop Written Laws, § 1 8 ; 2 Kent Lamphire, 3 Pet. 280 ; McGee v. Mathis, 
 
 Com. 305; East Hartford v. Hartford 4 Wal. 143. 
 
 Bridge, 10 How. U. S, 511 ; State Bank ' New Jersey v. Wilson, 7 Cranch, 
 
 V. Knoop, 16 How. U. S. 369 ; Bissell v. 164; McGee v. Mathis, supra; Thomp- 
 
 Jeffersonville, 24 How. U. S. 287. son v. Holton, 6 McLean, 386. 
 
 '^ Louisiana v. St. Martin's, 1 1 1 U. S. ^ Farrington v. Tennessee, 95 U. S. 
 
 716 ; "Von Hoffman v. Quincy, 4 Wal. 679 ; State Bank v. Knoop, 16 How. 
 
 535. TJ. S. 369; Ohio Life Ins. &c. Co. r. 
 
 » Ante, § 208 ; Butler v. Pennsylva- Debolt, 16 How. U. S. 416; Wright v. 
 
 nia, 10 How. U. S. 402. Sill, 2 Black, 544. 
 
 * Ante, § 559. » Christ Church v. Philadelphia, 24 
 
 ^ The State v. Barker, 4 Kan. 379, How. U. S. 300 ; People v. Commission- 
 
 435; United States v. Great Falls, &c. ers of Taxes, 47 N. Y. 501. And see 
 
 Co. 21 Md. 1 19. Providence Bank v. Billings, 4 Pet. 
 
 « Fletcher v. Peck, 6 Cranch, 87; 514. 
 
 Terrett c. Taylor, 9 Cranch, 43; Paw- w Beer Company o. Massachusetts, 97 
 
 let V. Clark, 9 Cranch, 292 ; Hart v. U. S. 25, 33 ; Stone v. Mississippi, 101 
 220 
 
CHAP. XIX.] OBLIGATION OP CONTRACTS. § 566 
 
 for example, a statute is valid which forbids the carrying on 
 of a lottery under a franchise previously bought of the State, 
 by the parties, and paid for.i And a liquor license, granted 
 and paid for, will not protect sales made in violation of sub- 
 sequent legislation.^ 
 
 III. The Laws under which the Contract is made. 
 
 § 565. Deemed Part of Contract. — Irrespectively of the 
 doctrine already explained, that, iu general, the law enters 
 into a contract and constitutes a part of it,'^ the terms of our 
 constitutional provision establish this rule absolutely, and 
 exclude exceptions, as to the contracts to which it relates. 
 The " obligation " of a contract is, by the simple meaning of 
 the expression, the duty, in exact form and measure, which 
 the law at the time and place of the making, assuming the place 
 of its contemplated performance to be within the jurisdiction 
 of the same law, imposes on the parties.* " Illustrations of 
 this proposition are found in the obligation of the debtor to 
 pay interest after the maturity of the debt, where the contract 
 is silent, — in the liability of the drawer of a protested bill to 
 pay exchange and damages, — and in the right of the drawer 
 and indorser to require proof of demand and notice. These 
 are as much incidents and conditions of the contract as if they 
 rested upon the basis of a distinct agreement." ^ 
 
 § 566. Under Conflicting Laws. — This is not the place to 
 inquire, in detail, how far the doctrine is to be modified 
 when applied to a contract made in one State, to be per- 
 formed in another. In reason, if, under the rules to be stated 
 in a chapter further on, a contract is to be interpreted by laws 
 other than those of the locality where made, they, instead of 
 the local laws, should be read as parts of its stipulations, 
 when we are considering the effect thereon of this constitu- 
 
 U. S. 814; Butchers, &c. Co. v. Ores- 3 Ante, § 439-441. 
 
 cent City Live-stock, &c. Co. Ill U. S. * Von Hoffman v. Quinny, 4 Wal. 
 
 746. .535, 550 ; Eobards v. Brown, 40 Ark. 
 
 ' Bishop Stat Crimes, § 957 ; Stone 423. 
 V. Mississippi, supra. * Swayne, J., in Von Hoffman v. 
 
 2 Bishop Stat. Crimes, § 992 a, 1001. Quincy, supra, at p. 550. 
 
 221 
 
§ 567 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 tional provision. But the courts have not looked at the 
 matter quite so — or, at least, have added other questions to 
 this one — when determining the effect of State insolvency 
 laws.' It will compensate the astute practitioner to give 
 to this sort of question, whenever it arises, a fresh and inde- 
 pendent investigation. 
 
 IV. Subsequent Laws impairing or not the Obligation. 
 
 § 567. In General. — Viewing a contract, therefore, as con- 
 sisting both of the words of the parties and, mingled there- 
 with, of all relevant provisions of the law under which it was 
 made,^ if now we find any obligation which the mingled con- 
 tract imposes on either party attempted to be augmented, 
 diminished, or otherwise changed by a later statute to the 
 detriment of either, the enactment will be ineffectual for the 
 purpose.^ Not only is the annihilation thereby of the entire 
 stipulations, thus appearing, impossible ; * but, for example, 
 no abatement of the interest which the law of a contract 
 allowed,* no other diminution of a sum payable, no injurious 
 change in the manner or time of payment,^ no permission to 
 the jury to estimate values which the parties had in their 
 contract determined,' no other tampering with the original 
 " obligation," * is permissible. It follows that, — 
 
 1 Ogden V. Saunders, 12 Wheat. 213 ; Pretlow v. Bailey, 29 Grat. 212 ; Rob- 
 Boyle V. Zacharie, 6 Pet. 63.5, 643 ; erts v. Cocke, 28 Grat. 207 ; Brewer v. 
 Suydam v. Broadnax, 14 Pet. 67 ; Hills Otoe, 1 Neb. 373. 
 
 V. Carlton, 74 Maine, 156, and cases •• Golden v. Prince, 3 Wash. C. C. 
 
 thetB cited; 3 Pars. Con. 553, 554. 313; Randolph v. Middleton, 11 C.E. 
 
 2 Ante, § 565, 566. Green, 543 ; Farmers Bank v. Gunnell, 
 s Green «. Biddle, 8 Wheat. 1 ; Bron- 26 Grat. 131. Compare with Houston 
 
 son V. Kinzie, 1 How. U. S. 311, 316 ; v. Jefferson College, 13 Smith, Pa. 428. 
 Lathrop v. Brown, 1 Woods, 474 ; Win- ' Wilmington, &c. Railroad v. King, 
 
 ler V. Jones, 10 Ga. 190. 91 U. S. 3. 
 
 * Sturges V. Crowninshield, 4 Wheat. » The State v. Richmond, &c. Rail- 
 122 ; McElvain v. Mudd, 44 Ala. 48, road, 73 N. C. 527 ; Consolidated Assoc. 
 61 ; Fitzpatrick v. Hearne, 44 Ala. 171 ; v. Lord, 35 La. An. 425 ; Hovelman v. 
 Curry v. Davis, 44 Ala. 281 ; McNealy Kansas City Horse Railroad, 79 Misso. 
 V. Gregory, 13 Fla. 417; Calhoun v. 632; Old Dominion Bank u. McVeigh, 
 Calhoun, 2 S. C. 283. 20 Grat. 457 ; The State v. Gatzweiler, 
 
 * Ante, § 565; Cecil v. Deyerle, 28 49 Misso. 17. 
 Grat. 775 ; Kent v. Kent, 28 Grat. 840 ; 
 
 222 
 
CHAP. XIX.] OBLIGATION OP CONTRACTS. § 571 
 
 § 568. Subsequent to Contract. — For a statute to be ob- 
 noxious to tbis provision, it must be made subsequently to 
 the contract ; since, as we have seen, the prior laws are inter- 
 preted into it, and thereby rendered parts thereof. ^ But, in 
 reason, the prior laws covered by this proposition can be 
 those only under which the contract came into existence ; 
 and neither prior nor subsequent ones of another State, where 
 its enforcement may be sought, can be effectual, whatever 
 their terms, to impair an obligation which the law of the con- 
 tract, at the time of its making, imposed.^ 
 
 § 569. Changes of Judicial Decision. — The power both of 
 making and of repealing laws is in our legislatures ; and the 
 courts have no jurisdiction, even to the minutest degree, in 
 the matter. They can say what a law means ; and, if after- 
 ward they see that they have made a mistake, they can cor- 
 rect their error by an overruling of the former decision. The 
 consequence of which overruling is, that the blunder is 
 thenceforward deemed never to have been law. This doctrine 
 is fundamental in our jurisprudence, rendered irrepealable, it 
 is believed, by various provisions of our written constitutions 
 both National and State. Still, unhappily, in seeming viola- 
 tion of this doctrine, the courts have held that, where a stat- 
 ute has received what they term a settled exposition, then a 
 contract has been made which under it is good, there is cre- 
 ated an " obligation " which cannot be overturned by decisions 
 overruling the earlier exposition.^ 
 
 § 570. state Constitution. — A provision added to the con- 
 stitution of the State, or incorporated into a new one, is as 
 ineffectual to impair the obligation of a prior contract as 
 would be the same in a statute. It, also, is a " law." * 
 
 § 571. Remedy. — The procedure for enforcing an obliga- 
 tion is no part of the obligation itself. And it has become 
 established doctrine that the legislative power may, at pleas- 
 
 1 Kailroad v. McClure, 10 Wal. 511. * Bishop Written Laws, § 1 1 a ; Eail- 
 
 2 Ante, § 554. road v. McClure, 10 Wal. 511 ; Roach 
 » Douglass V. Pike, 101 U. S. 677 ; v. Gunter, 44 Ala. 209 ; Delmas v. In- 
 
 Walker v. The Stote, 12 S. C. 200; surance Co. 14 Wal. 661. 
 Havemeyer v. Iowa, 3 Wal. 294 ; 
 Thomson v. Lee, 3 Wal. 327. 
 
 223 
 
§ 572 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 ure, change the remedy by any provisions which do not also 
 impair the right.^ In the Supreme Court of the United 
 States the rule was stated to be, that, " in modes of proceed- 
 ing and forms to enforce the contract, the legislature has the 
 control, and may enlarge, limit, or alter them, provided it 
 does not deny a remedy or so embarrass it with conditions or 
 restrictions as seriously to impair the value of the right." ^ 
 Thus,— 
 
 § 572. Illustrations. — Legislation is valid which authorizes 
 the parties in interest to sue in their own names on prior 
 contracts,^ which makes criminal the breach of such con- 
 tracts,* which subjects existing debts to garnishment,^ which 
 abolishes imprisonment for such debts,® which compels cred- 
 itors to sue their debtors within a limited time stated or be 
 barred of the right,^ which determines the tribunal and how 
 to proceed before it ; ® but not, as said before, which takes 
 away all remedy, or so shapes it as materially to diminish the 
 right.^ Of the latter sort, for example, is a statute prohibit- 
 ing any judicial sale of the debtor's property for less than a 
 specified part of its appraised value,^" or withdrawing it from 
 legal process," or taking away a lien which a prior procedure 
 had caused to attach.^2 But laws exempting from levy rea- 
 sonable portions of the debtor's property, on which there is 
 
 1 Bishop Written Laws, § 84, 85 a, ^ League u. De Young, 11 How. tJ. S. 
 175-178. 185; Baltimore, &c. Eailroad v. Nesbit, 
 
 2 Woods, J., in Penniman's Case, 103 10 How. U. S. 395. 
 
 U. S. 714, 720. And see Curtis v. Whit- » Johnson v. Winslow, 64 N. C. 27 ; 
 
 ney, 13 Wal. 68; Woodruff v. Scruggs, Coffman «. Bank of Kentucky, 40 Missis. 
 
 27 Aril. 26; McCreary t). The State, 27 29; Hill v. Boyland, 40 Missis. 618; 
 
 Ark. 425 ; Holland ». Dickerson, 41 Wilcox v. Davis, 7 Minn. 23 ; Keough 
 
 Iowa, 367 ; Goodale v. Tennell, 27 Ohio v. McNitt, 7 Minn. 30. 
 State, 426. i° Bronson v. Einzie, 1 How. U. S. 
 
 8 Crawford v. Branch Bank, 7 How. 311 ; McCracken v. Hay ward, 2 How. 
 
 U. S. 279. U. S^ 608 ; Gantly v. Ewing, 3 How. 
 
 4 Blann v. The State, 39 Ala. 353. U. S. 707 ; Howard v. Bngbee, 24 How. 
 
 « Philbrick v. Philbrick, 39 N. H. U. S. 461; Eobards v. Brown, 40 Ark, 
 
 468. 423 ; Lancaster Savings Inst. v. Eeigart, 
 
 6 Penniman's Case, 103 U. S. 714 ; 2 Pa. Law Jour. Eep. 238. 
 
 Lee V. Gamble, 3 Cranch C. C. 374 ; " The State v. Bank of the State, 1 
 
 Sturges V. Crowninshield, 4 Wheat. 122. S. C. 63. 
 
 7 Sturges II. Crowninshield, supra ; " Gunn v. Barry, 15 Wal. 610. 
 Gilflllan V. Union Canal, 109 U. S. 401. 
 
 224 
 
CHAP. XIX.] OBLIGATION OP CONTRACTS. § 575 
 
 no actual lien, are valid as to both prior and subsequent 
 contracts.^ 
 
 § 573. Eminent Domain. — The right, incident to every 
 government, and with us exercised both by the States and by 
 the United States, of taking with due compensation private 
 property for public use,^ is in no degree qualified by our con- 
 stitutional provision ; but it extends the same to real and 
 personal property, corporation franchises, and other rights, 
 which were vested through contract, as to things which came 
 otherwise to their possessors.^ In this way, for example, the 
 toll-bridge of a private corporation may be transferred to the 
 public and made free.* Again, -^ 
 
 § 574. Regulations of Property. — To a degree which it is 
 not within the scope of our present inquiries precisely to 
 ascertain, the legislature may regulate the use of private 
 property, the same as it may the conduct of its owners.^ 
 There is no distinction, as to this, between property which 
 has been vested through a contract and any other ; it, and all 
 other things are, for the public good, subject to the legisla- 
 tive control.® Finally, — ; 
 
 § 575. Interfering with Franchise. — After a corporation 
 franchise, affecting public rights, has been granted, — as, for 
 example, to maintain a toll-bridge, — the legislature may law- 
 fully authorize another corporation to do the like, or other- 
 wise set up a rival interest, especially if there has been no 
 express undertaking to forbear.'^ 
 
 1 Cooley Const. Lim. 287, 288, re- Bridge v. Clarksville, 1 Sneed, Tenn. 
 ferring, among other places, to Branson 176; Richmond, &c. Railroad v. Louisa 
 V. Kinzie, 1 How. U. S. 311. And see Railroad, 13 How. U. S. 71 ; New York 
 this place in Cooley for various other Central, &e. Railroad v. Metropolitan 
 authorities and illustrations. Gas-light Co. 63 N. Y. 326, 334. 
 
 2 Kohl V. United States, 91 U. S. * In re Towanda Bridge, 10 Norris, 
 367; Secombe u. Railroad, 23 Wal. 108; Pa. 216; Central Bridge v. Lowell, 4 
 Jones V. Walker, 2 Paine, 688 ; Perry v. Gray, 474, 481. 
 
 Wilson, 7 Mass. 393, 395; Cooper v. ^ Commonwealth v. Tewksbury, 11 
 
 Williams, 4 Ohio, 253 ; Charles River Met. 55. And see, for various illustra- 
 
 Bridge v. Warren Bridge, 7 Pick. 344, tions. Bishop Stat. Crimes, § 793, 957, 
 
 445. 995, 1130. 
 
 « West River Bridge v. Dix, 6 How. « Ante, § 564 ; Bishop Stat. Crimes, 
 
 U. S. 507 ; Philadelphia, &c. Railway's § 957 ; People v. Boston, &c. Railroad, 
 
 Appeal, 6 Out. Pa. 123; The State 70 N. Y. 569. 
 
 V. Noyes, 47 Maine, 189; Red River ' Charies River Bridge v. Warren 
 
 15 225 
 
§ 576 IN GENERAL WITH ILLUSTRATIONS. [BOOE I. 
 
 § 576. The Doctrine of this Chapter restated. 
 
 The constitutional provision under consideration binds the 
 States and not the United States, yet the Supreme Court of 
 the United States is the final arbiter of all questions of its 
 infraction. The States may, by their laws, render subse- 
 quent contracts subject to change or disruption by later legis- 
 lation; yet, when this power has not been exercised, and 
 there is nothing equivalent thereto in the stipulations of the 
 parties, a contract relating to private interests can be dis- 
 solved or varied only by mutual consent. And still the reme- 
 dies for enforcing it may be modified from time to time, by 
 legislation, to any extent which does not impair the original 
 " obligation," yet no further ; and, a fortiori, they cannot be 
 altogether taken away. At the same time, the contract is, to 
 the like extent as other interests and things, liable to be ap- 
 propriated by legislation, yet not without due compensation, 
 to the public use ; and it is likewise within the power which 
 makes criminal whatever the legislative body deems to be 
 detrimental to the public good. 
 
 Bridge, 7 Pick. 344 ; Butchers, &c. Co. Smith, 30 N. T. 44, 61 ; Turnpike v. 
 
 V. Crescent City Live-stock, &c. Co. Ill The State, 3 Wal. 210 ; Shorter v. Smith, 
 
 U. S. 746 ; In re Hamilton Avenue, 14 9 Ga. 517 ; Collins v. Sherman, 31 
 
 Barb. 405 ; Lehigh Water Co.'s Appeal, Missis. 679. 
 6 Out. Pa. 515 ; Fort Plain Bridge v. 
 226 
 
CHAP. XX.] THE IMPOSSIBLE. § 579 
 
 CHAPTER XX. 
 
 THE IMPOSSIBLE IN LAW AND PACT. 
 
 § 577, 578. Introduction. 
 
 579-583. Express Stipulation against the Impossible. 
 
 584-590. What deemed such or Equivalent. 
 
 591-608. Further of Stipulation and how in Absence thereof. 
 
 609. Boctrine of Chapter restated. 
 
 § 577. Cases and Dicta — How in this Chapter. — The adju- 
 dications on our present subject are, at some points, in dis- 
 cord quite beyond the possibility of reconciliation. And 
 often there is a want of harmony between the judicial words 
 and actual decisions, of which the judges appear to be them- 
 selves unconscious. It would not comport with the plan of 
 this work to discuss these differences at length ; hence the 
 only practical method will be to lay down and illustrate such 
 leading doctrines as are best sustained by the combined force 
 of authority and principle. 
 
 § 578. How Chapter divided. — We shall consider, I. The 
 Effect of an Express Stipulation against the Impossible ; 
 II. What will be construed as, or the Equivalent of, such a 
 Stipulation ; III. Further of the Stipulation and how in the 
 Absence thereof. 
 
 I. The Effect of an Express Stipulation against the Impossible. 
 
 § 579. Impossibility of Fact : — 
 
 Known — Unknown. — A mutual undertaking between par- 
 ties to do what both know to be impossible is vain and idle, 
 lacking the elements of contract, and no suit can be main- 
 
 227 
 
§ 582 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 tained thereon.^ And, within this principle, " all conditions 
 annexed to estates, that contain in them matter at the time 
 of making of "them impossible to be done, are void." ^ But a 
 contract may be good in favor of one who entered into it in 
 ignorance ^ of the impossibility of fact.* For example, — 
 
 § 580. Marriage Promise between Married Parties. — If a 
 married man and a woman not knowing of his marriage agree 
 to intermarry, she may avail herself of the contract, and bring 
 suit for its breach immediately on learning of the decep- 
 tion.^ Yet, if both are married, or one only is so, and the 
 other is aware of it, the mutual promise is, as to both, void.* 
 So,— 
 
 § 581. Sale with Warranty. — If, while parties suppose a 
 particular chattel to exist, one of them, believed to be the 
 owner, sells it to the other with the covenant that he has 
 power and authority to sell it, then, if in fact it has already 
 been destroyed, the purchaser may maintain his suit on the 
 contract.^ Yet, as already explained, if both the parties 
 knew the formal bargain to be a mere act of mutual folly, it 
 would be void. 
 
 § 582. Future Impossibility. — An impossibility which may 
 afterward arise or, as just seen, be disclosed, however its 
 probability may be contemplated by the parties, is treated as 
 unknown to both ; for so it truly is. Therefore an agree- 
 ment between them, whereby one is to pay the damages 
 which the inevitable in the future may bring to the other, is 
 vai^d. A familiar illustration is a policy of marine insurance, 
 by which the underwriter promises to compensate the owner 
 in money for damages from " perils of the sea," against which 
 
 1 1 Britton, Nich. ed. 158, 239 ; Nerot 577 ; Ashcroft v. Crow Orchard Colliery, 
 t'. Wallace, 3 T. R. 17, 22; Met. Con. Law Eep. 9 Q. B. 540. 
 
 211; 1 Chit. Con. llth Am. ed. 64; 2 6 Millward v. Littlewood, 5 Exch. 
 
 lb. 1073. See Gilmer B. Gilmer, 42 Ala. 775; Kelley v. Eiley, 106 Mass. 339; 
 
 9 ; Faulkner v. Lowe, 2 Exch. 595. Coover v. Davenport, 1 Heisli. Tenn. 
 
 2 Shep. Touch. 132. And see Bes- 368. And see Pollock v. Sullivan, 53 
 wick V. Swindells, 3 A. & E. 868, 5 Nev. Vt. 507. 
 
 &M. 378. « Havilandw. Halstead,34N. Y.643; 
 
 8 Ante, § 481. Paddock v. Robinson, 63 111. 99. 
 
 4 Consult Walker v. Tucker, 70 111. ' Barr v. Gibson, 3 M. & W. 390. 
 
 527 ; Clifford ». Watts, Law Rep, 5 C. P. 
 228 
 
CHAP. XX.] THE IMPOSSIBLE. § 585 
 
 no human T^ovrev is able to contend. This sort of contract is 
 every day enforced in our courts.^ The illustrations of it, 
 besides the one just given, are abundant.^ 
 
 § 683. Impossibility of Law : — 
 
 In General — Elsewhere. — As both parties are conclusively 
 presumed to know the law,^ stipulations to do what is simply 
 against law are void, — a doctrine explained in a preceding 
 chapter.* Yet, as there shown also, and in accordance with 
 what is said in the foregoing sections of this chapter, one 
 who is innocently ignorant of the fact which renders perform- 
 ance unlawful may have his suit for damages against the 
 other.^ 
 
 II. What will be construed as, or the Equivalent of, a Stipula- 
 tion against the Impossible. 
 
 § 584. Meaning of " Impossible." — This is a word of inexact 
 signification in legal writings. Sometimes it is employed in 
 the sense of extremely difficult ; sometimes, as meaning what 
 the party himself is unable to do. In connection with the 
 subject of this chapter, it is occasionally used in such loose 
 way ; but it is more appropriately limited to the impossibili- 
 ties which proceed from what are technically called the acts 
 of God, of the public enemy, and of the law, to be explained 
 under our next sub-title. In a section just back,^ the non- 
 existence of the thing contracted about is classed with tiie 
 impossible ; but such a case may with equal or perhaps 
 greater propriety be referred to other principles conducting 
 to the same legal result. Commonly, in this chapter, the 
 author uses the word in the limited sense just stated. 
 
 § 585. Differences — True Rule. — The differences of judi- 
 cial opinion, on the subject of this chapter,^ relate more to 
 
 1 Taylor v. Dunbar, Law Eep. 4 Co. 1 Macq. H. L, Cas. 668 ; Blodgett 
 
 C. P. 206 ; Baker v. Manufacturers Ins. v. American Nat. Bank, 49 Conn. 9. 
 Co. 12 Gray, 603 ; Pleraming v. Marine " Ante, § 462. 
 
 Ins. Co. 4 Whart. 59. * Ante, § 467 et seq. 
 
 ? For example. Hoy v. Holt, 10 Nor- » Ante, § 481-486, 579, 580. 
 ris. Pa. 88 ; Clark v. Glasgow Assur. ' Ante, § 581. 
 
 7 Ante, §,577. 
 
 229 
 
§ 586 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 the interpretation of the contract, as to whether or not it 
 shall be deemed to contain the party's stipulation to be re- 
 sponsible for future impossibilities, than to any other ques- 
 tion. The cases are believed not to be reconcilable ; yet, 
 from a part of them, and from the reason of the thing, we 
 may assume it to be the true rule to construe the contract as 
 embracing such stipulation only when its express words are 
 so, or when by indirection they necessarily include it, or 
 when the special subject is such as, for example, an insurance 
 policy, makes this rendering inevitable. It would be vain for 
 this condensed work to undertake an extensive exploration 
 of the cases in elucidation of this rule ; but something may 
 be desirable, thus, — 
 
 § 586. Condition Precedent. — Where a contract contains a 
 condition precedent, — that is, where a stipulation is to bind 
 a party only on the transpiring of a designated event, — such 
 party cannot be in default so long as, from any cause, the con- 
 dition remains unfulfilled.^ Therefore, in such a case, it is 
 immaterial that the performance of the condition was pre- 
 vented by the act of God.^ On this principle, after a sailor 
 had taken, in lieu of other wages, the employer's promise to 
 pay him a specified sum "provided he proceeds, continues, 
 and does his duty as second mate in the said ship, from hence 
 to the port of Liverpool," and he died before the ship arrived 
 at the port, it was held that nothing could be recovered on 
 the promise. Though his death was by the act of God, the 
 condition still remained unfulfilled.^ And where a life- 
 insurance policy was, by its terms, to be void if the insured 
 should go south of a specified line without a written permit, 
 and, under such permit, limited to a day mentioned, he went 
 beyond the line, and by reason of sickness was unable to 
 return, the condition of the policy was adjudged not to be 
 avoided.* Within a principle not differing greatly from this, — 
 
 1 Oakley v. Morton, 1 Eeman, 25 ; 249 ; Shrewsbury v. Hope-Scott, 6 C. B. 
 
 Bruce v. Snow, 20 N. H. 484 ; Van- n. s. 1, 6 Jur. n. s. 452. 
 home 0. Dorrance, 2 Dal. 304, 317 ; Bal- » Cutter v. Powell, 6 T. R. 320. 
 timore, &c. Railroad v. Polly, 14 Grat. * Evans v. United States Life Ins. 
 
 447 ; Boyd v. Siffkin, 2 Camp. 326. Co. 64 N. Y. 304. 
 
 '■^ Mizell V. Burnett, 4 Jones, N. C. 
 
 230 
 
CHAP. XX.] THE IMPOSSIBLE. § 588 
 
 § 587. Non-existence of Thing. — If the thing to which the 
 contract relates is, contrary to the beUef of the parties, not in 
 existence, there being nothing to which it can attach, and 
 their formal mutual consent being therefore the product of 
 mutual mistake, there is no contract; a court of equity will 
 set aside the seeming one, or it will be treated in a court of 
 law as void.^ And where a part only of a contract is so, such 
 part will be construed as null, or as not meant to be embraced 
 in the valid stipulations.^ The doctrine also extends further ; 
 namely, — 
 
 § 588. Existence of Thing ceasing. — If the contract as- 
 sumes the continued existence of the thing, then, on perform- 
 ance becoming due, if, without the fault of the parties, the 
 thing has ceased to exist, the case has become one of mutual 
 mistake, and the duty to perform no longer remains.^ For 
 example, where a public hall is let for a musical entertain- 
 ment on a future day, if, before the day arrives, it is acciden- 
 tally destroyed by fire, the bargain is ended.* In these cases, 
 where, before the thing has ceased to exist, there has been a 
 part performance, complications may arise not so easily passed 
 upon. Thus, where one undertook to build certain machinery 
 into the structure of another, which was accidentally de- 
 stroyed by fire while the work was in progress, it was first 
 held that he might recover the value of what was actually 
 put in ; ^ but the decision was reversed on appeal, both parties 
 were excused from further performance, and the one who had 
 done the work, not having reached the point at which he was 
 entitled to be paid, was allowed nothing.^ A lessor of a hotel 
 
 1 Ante, § 70, 71 ; Allen v. Hammond, * Taylor v. Caldwell, supra. 
 
 11 Pet. 63, 72; Hitchcock v. Giddings, » Appleby v. Meyers, Law Eep. 1 
 
 4 Price, 135 ; Scruggs v. Driver, 31 Ala. C. P. 615, 12 Jur. n. s. 500. 
 
 274; Harrellu.DeNorraandie, 26 Texas, ^ Appleby v. Myers, Law Rep. 2 
 
 120; Daniel v. Mitchell, 1 Story, 172; C. P. 651. The Massachusetts decisions 
 
 Miles V. Stevens, 3 Barr, 21 ; Ketchura accord rather with the first than with the 
 
 V. Catlin, 21 Vt. 191 ; French ti.Townes, second adjudication of this case. Lord 
 
 10 Grat. 513. v. Wheeler, 1 Gray, 282; Wells v. Cal- 
 
 2 Clifford V. Watts, Law Rep. 5 C. P. nan, 107 Mass. 514, 517 ; Cleary v. So- 
 577. hier, 120 Mass. 210. And see Richardson 
 
 8 Taylor v. Caldwell, 3 B. & S. 826; v. Shaw, 1 Misso. Ap. 234; post, § 597. 
 Walker v. Tucker, 70 111. 527. 
 
 231 
 
§ 590 IN GENERAL WITH ILLUSTRATIONS. . [BOOK I. 
 
 covenanted with the lessee that it should be supplied with 
 water from a spring in the same manner as it then was, the 
 spring became dry, yet the covenant was adjudged not to be 
 violated.^ One put his mare to a stallion, to pay on the service 
 being done, but with the further agreement that if she did not 
 prove with foal it might be repeated the next year without 
 added compensation ; it failed, the stallion died before the 
 next season ; and the court held that the fee must be paid by 
 the owner of the mare, and that the benefit of the further 
 service was his loss.^ Parties agreed to make a certain allow- 
 ance to a deserted wife " so long as she should continue sepa- 
 rate and apart from her husband," and his death was held to 
 terminate the agreement.^ 
 
 § 589. "Warranty. — We have already seen that, if in these 
 cases there is a warranty of the existence of the thing, the 
 result is different.* The ordinary construction is excluded by 
 the express terms. Now, — 
 
 § 590. Express Terms as to Impossibility. — There are 
 multitudes of cases in which the judges have said that, to 
 quote from an old one,^ " when the party by his own contract 
 creates a duty or charge upon himself, he is bound to make it 
 good, if he may, notwithstanding any accident by inevitable 
 necessity, because he might have provided against it by his 
 contract." ^ And this observation is not unfrequently applied 
 even where the impediment came from the act of God.'^ The 
 doctrine, indeed, is often laid down in the most absolute and 
 unqualified terms, excluding exceptions. But the actual ad- 
 judications, while discordant, come very much short of this ; 
 so that, as a whole, the dictum is not sustained by them. 
 When one agrees in terms to do a thing, in reason he pledges 
 
 1 Ward V. Vance, 12 Norris, Pa. 499, trict v. Dauchy, 25 Conn. 530 ; Bunn v. 
 
 502. Prather, 21 111. 217 ; Davis v. Smith, 15 
 
 ? Price V. Pepper, 13 Bush, 42. Misso. 467; Jemison v. McDaiiiel, 25 
 
 ' Miller v. Woodward, 2 Beav. 271. Missis. 83. 
 
 < Ante, § 581. '^ Mellish, L. J. in Wear Commis- 
 
 5 Paradine v. Jane, Aleyji, 26. sioners v. Adamson, 1 Q. B. D. 546, 548; 
 
 « For example, Atkinson v. Ritchie, Nichols v. Marsland, 2 Ex. D. 1,4; 
 
 10 East, 530, 53.S ; Harmony v. Bing- Clifford v. Watts, Law Rep. 5 C. P. 577, 
 
 ham, 2 Kernan, 99, 107; West v. The 586; Mill Dam Foundry v. Hovey, 21 
 
 Uncle Sam, McAl. 505 ; School Dis- Pick. 417, 441. 
 232 
 
CHAP. XX.] THE IMPOSSIBLE. § 591 
 
 himself to the capacity to do it, and assumes responsibility for 
 obstacles and accidents. So likewise are the decisions.^ But, 
 if the absolute impossibility created by the act of Gpd, or of 
 a public enemy, or of a statute which the legislature may here- 
 after enact, were in the contemplation of the parties, the ex- 
 pression in their contract would not be, that the one should 
 do it and the other pay for it ; for such expression would, 
 under the circumstances, be wholly inappropriate and ridicu- 
 lous. A life-insurance company does not promise that the 
 person insured shall live forever; its undertaking is, that, 
 when the act of God terminates his life, it will pay to one 
 designated a specified sum. When, therefore, in the ordinary 
 case, parties agree that the one shall do a thing for the bene- 
 fit of the other who shall pay so much money for the doing, 
 and their agreement goes no further, their words exclude the 
 supposition of either of them having contemplated the inter- 
 position of God, or of a public euemy, or of the law, to put 
 performance above and beyond human power. On the com- 
 ing of such impjfesibilifcy, performance has ceased to be a thing 
 of human contempjolion ; it is no longer the subject of any 
 bargain, other than the one which the parties have, by the 
 terms of their contract, caref ullj' excluded therefrom, namely, 
 for the one to make good the other's loss. The case is like 
 that of the burned building;^ the law may adjust the rights 
 of the parties, but the contract has no relation to the facts, 
 therefore it is to be treated as void for the want of matter 
 on which to operate.^ 
 
 III. further of the Stipulation and how in the Absence 
 thereof. 
 
 § 591. Difficult — Impossible to Party. — One's undertaking, 
 therefore, will bind him to whatever it is within the scope of 
 private exertion to accomplish without violating the law, 
 however inconvenient,* however many obstacles he may en- 
 
 1 Post, § 591. Crespigny, Law Eep. 4 Q. B. 180, 185, 
 
 s Ante, § 588. 186. 
 
 »> And see observations in Bailjr i>. De * Duncan v. Gibson, 45 Misso. 352; 
 
 233 
 
§ 592 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 counter, and however impossible its doing may be to him.^ 
 A familiar illustration is where a promisor is unable to fulfil 
 his engagement through loss of his property, or otherwise 
 through poverty ; no one ever supposed this to be an excuse 
 in law .2 The other illustrations in the books are, in general, 
 so mingled with judicial misapprehensions like those spoken 
 of in the last section that only by resort to reason can we dis- 
 tinguish the sound from the unsound. But, for example, any 
 unexpected hindrance to navigation ^ will not in general ex- 
 cuse a person who has expressly contracted to carry goods or 
 the like ; for, however difficult to deal with the party may 
 find the obstruction, there is ordinarily nothing in its nature 
 absolutely insurmountable. But, — 
 
 § 592. Act of God — Public Enemy. — Where, as already in- 
 timated, the thing contracted for becomes impossible through 
 what is termed in the books " the act of God or the king's 
 enemies," * the one who has promised to do it (not promised 
 to compensate the other for what he shall have suffered from 
 its not being done ^) is excused.^ There are cases which seem 
 contrary to this, wherein defendants have been compelled to 
 pay money because they could not contend successfully with 
 the Almighty or with the public enemy .^ 
 
 Lomisy. Rnetter, 9 Watts, 516; Huling « Morrow v. Campbell, 7 Port. 41 ; 
 
 V. Craig, Addison, 342; Anspach v. The Eliza, Daveis, D. C. 316; Millers. 
 
 Bast, 2 Smith, Pa. 356; Cobb v. Har- Phillips, 7 Casey, Pa. 218; Brown ii. 
 
 mon, 23 N. Y. 148 ; Dodge v. Van Lear, Dillahunty, 4 Sm. & M. 713 ; Gillespie 
 
 5 Cranch, C. C. 278. k. Hamilton, 3 Madd. 251, 254; Selden 
 
 1 Butler's note to Co. Lit. 206 a; w. Preston, 11 Bush, 191 ; Usher w. Hiatt, 
 Dermott v. Jones, 2 Wal. 1 ; Reid v. 18 Kan. 195 ; Baily v. De Crespigny, 
 Edwards, 7 Port. 508; The Harriman, Law Eep. 4 Q. B. 180, 185; Howell ». 
 9 Wal. 161 ; Stone v. Dennis, 3 Port. Coupland, Law Eep. "9 Q. B. 462, 1 Q. 
 231 ; Hale v. Rawson, 4 Jur. N. s. 363, B. D. 258 ; see Ide v. Fassett, 45 Vt. 68. 
 364; Walker v. Tucker, 70 111. 527; ' See, and compare, Gillespie v. 
 McDonald w. Gardner, 56 Wis. 35. Hamilton, 3 Madd. 251, 254; Howell 
 
 2 And see McCreery v. Green, 38 v. Coupland, 1 Q. B. D. 258 ; Booth v. 
 Mich. 172. Spuyten Duyvil Rolling Mill Co. 3 
 
 8 Harmony v. Bingham, 2 Kernan, Thomp. & C. 368 ; Bryan v. Spnrgin, 5 
 
 99; Shubrick v. Salmond, 3 Bur. 1637; Sneed, Tenn. 681 ; West e. The Uncle 
 
 Parker v. Winlow, 7 Ellis & B. 942 ; Sam, McAl. 505 ; Jemison v. McDaniel, 
 
 Eugster v. West, 35 La. An. 119. 25 Missis. 83 ; Hore «. Whitmore, Cowp. 
 
 * Jones Bailm. Am. ed. of 1807, p. 784; Cassady w. Clarke, 2 Eng. 123; 
 
 120. Clancy v. Overman, 1 Dcv. & Bat. 402 ; 
 
 « Ante, § 582, 590. School District v. Danchy, 25 Conn. 530. 
 234 
 
CHAP. XX.] THE IMPOSSIBLE. § 595 
 
 § 593. Same defined. — The "act of God," within this doc- 
 trine, is some manifestation of nature to which man has not 
 contributed and which he cannot overcome, such as lightning 
 and the fire it kindles, cold, or a tempest, but not a fire from 
 an ordinary accident.^ By the "act of the public enemy," 
 are meant the ravages or restraints of war, but not of a robber 
 or a mob.^ 
 
 § 594. Act of the Law. — We have seen that the constitu- 
 tional provision against impairing the obligation of contracts 
 does not restrain legislation from making unlawful the thing 
 lawfully agreed to be done.^ When, therefore, the carrying 
 out of a contract is thus forbidden by law, the decisions are 
 uniform that the party who was under obligation to do the 
 thing is excused.* Within this principle, a declaration of 
 war may dissolve a contract of affreightment.^ And when, 
 during slavery, one sold a life estate in slaves, covenanting 
 to protect through such life the purchaser in his title to 
 them, their emancipation by law was held not to put him in 
 default.^ 
 
 § 595. Created by Law — Legal Duty impossible. — Upon 
 
 1 Nichols V. Marsland, Law Rep. 10 not contributed, and which he cannot 
 
 Ex. 255 ; Chicago, &c. Railroad b. Saw- overcome." 
 
 yer, 69 111. 285 ; Price v. Hartshorn, 44 ^ Forward v. Pittard, supra, at p. 34 ; 
 
 N. Y. 94 ; Forward v. Pittard, 1 T. R. Elliott v. Norfolk, 4 T. R. 789 ; Trent 
 
 27; Brousseau v. Hudson, 11 La. An. Navigation v. Wood, supra; Gordon v. 
 
 427; Alseptw. Eyles, 2 H. Bl. 108, 113; Rimmington, 1 Camp. 123; The State 
 
 Trent Navigation v. Wood, 3 Esp. 127; v. Moore, 74 Misso. 413; Sugarman v. 
 
 Rex !>. Somerset, 8 T.R. 312; Amies ». The State, 28 Ark. 142. See Lake 
 
 Stevens, 1 Stra. 128; Bird v. Astcock, 2 Shore, &c. Railway v. Bennett, 89 Ind. 
 
 Bulst. 280; Mouse's Case, 12 Co. 63; 457. 
 Merchants Despatch Co. v. Smith, 76 III. s Ante, § 564, 574. 
 
 642; Vail v. Pacific Railroad, 63 Misso. * Brewster v. Kitchell, 1 Salk. 198; 
 
 230. "The books generally mention a Brown v. Dillahunty, 4 Sm. & M. 713; 
 
 promise to go from London to Rome in Brick Presbyterian Church v. New York, 
 
 three hours, as a promise that would be 5 Cow. 538; Anglesea v. Rugeley, 6 
 
 void because impossible to be performed." Q. B. 107, 114; Baily v. De Crespigny, 
 
 Met. Con. 214. The impediment in this Law Rep. 4 Q. B. 180, 186, 187 ; Baker 
 
 case, the reader perceives, is an " act of v. Johnson, 42 N. Y. 126 ; Mississippi, 
 
 God," within our definition ; it is inhe- &c. Railroad v. Green, 9 Heisk. 588. 
 rent in the nature which God has given * Esposito v. Bowden, 7 Ellis & B. 
 
 to man, rendering such rapidity of loco- 763, 3 Jur. N. s. 1209. 
 motion impossible to any one ; or, in the ^ Trimmier v. Thomson, 10 S. C. 
 
 language of our definition, it is a " man- 164, 184 ; Calhoun u. Calhoun, 2 S. C. 
 
 ifestation of nature to which man has 283, 304. 
 
 235 
 
§597 IN GENERAL WITH ILLUSTRATIONS. [BOOK I, 
 
 another question, also, the authorities agree; namely, that 
 when the law creates a contract, or otherwise casts on one 
 a duty, he is excused if the thing becomes, in the absolute 
 sense we are considering, impossible. A person thus obligated 
 is not required, however the rule may be where the contract 
 is in words, to contend with the Almighty, or in his private 
 capacity to overcome the public enemy .^ A familiar illustra- 
 tion is, — 
 
 § 596. Common Carrier. — The law casts upon the common 
 carrier the duty as of contract ^ to carry the goods safely. If 
 they are destroyed by fire, which is not deemed the act of 
 God,^ he is responsible.* But if their destruction is caused 
 by the act of God or of a public enemy, and he is himself 
 using due diligence to preserve them and carry them in 
 safety,^ he is excused,^ while no obstacles short of these will 
 suffice.^ These consequences are not unfrequently varied 
 by express contract. 
 
 § 597. Other Illustrations and Explanations : — 
 
 Some further elucidations of the doctrines of this sub-title 
 will be helpful ; thus, — 
 
 Destruction by Fire. — We have seen what is the effect of 
 the thing contracted about having ceased to exist because of 
 an accidental fire.^ The erroneous idea, that the promise to 
 
 1 Mosely v. Baker, 2 Sneed, Tcnn. Kahn, 76 111. 520 ; Pittsburgh, &c. Bail- 
 362; Rex v. Somerset, 8 T. R. 312; way w. Barrett, 36 Ohio State, 448. 
 Nichols ». Marsland, Law Rep. 10 Ex. 5 HoUaday v. Kennard, 12 Wal. 254; 
 255; Cassady v. Clarke, 2 Eng. 123; Lament v. Nashville, &c. Railroad, 9 
 Rylands v. Fletcher, Law Rep. 3 H. L. Heisk. 58 ; Miltimore !>. Chicago, &c. 
 330, 340, 342 ; Clark i-. Glasgow Assur. Railway, 37 Wis. 190 ; The Rocket, 1 
 Co. 1 Macq. H. L. Cas. 668 ; The State Bis. 354 ; Packard v. Taylor, 35 Ark. 
 V. Clarke, 73 N. C. 255 ; Havens ;•. Lath- 402 ; Caldwell v. Southern Exp. Co. 1 
 ene, 75 N. C. 505; Norcross v. Norcross, Flip. 85. 
 
 53 Maine, 163. ^ Southern Express v. Womack, 1 
 
 2 Ante, § 204. Heisk. 256 ; Strohn v. Detroit, &c. Rail- 
 » Antei § 593. " In the case of sea- road, 23 Wis. 126 ; Lewis v. Ludwick, 6 
 
 going vessels. Congress has, by the act Coldw. 368 ; Wallace v. Sanders, 42 Ga. 
 
 of 1851, relieved ship-owners from all 486 ; Houston, &c. Railway v. Harn, 44 
 
 responsibility for loss by fire, unless Texas, 628. 
 
 caused by their own design or neglect," ' Illinois Central Railroad «. Mc- 
 
 &c. Bradley, J. in Railroad v. Lock- Clellan, 54 111. 58, 70; Seliginan v. At- 
 
 wood, 17 Wal. 357, 360. mijo, 1 New Mex. 459. 
 
 * Forward v. Pittard, 1 T. R. 27 ; « Ante, § 588. 
 Merchants Despatch Transp. Co. v. 
 236 
 
chap; XX.] THE IMPOSSIBLE. §600 
 
 do a thing binds the promisor to pay whatever loss the act of 
 God brings by putting a stop to the doing, has been assigned 
 as the reason for the just conclusion, that one's undertaking 
 to build a house on another's land is not discharged by his 
 partly building it, followed by an accidental fire consuming 
 the incomplete structure.^ Such fire not being the act of God, 
 the case is not within any rule on the subject. Besides, an- 
 other house will just as well answer the contract. It is the 
 same, also, where a printer bargains to supply a given number 
 of copies of a book ; if a part are delivered, then his premises, 
 with the rest, are burned, his contract remains unfulfilled.^ 
 Again, — 
 
 § 598. Lease of Realty. — The lessee of a house and land, 
 if he is driven off by the public enemy, or if the house is de- 
 stroyed by the act of God, is not freed from his covenant to 
 pay rent ; ^ a fortiori, he is not, if an accidental fire consumes 
 the house.* For this sound rule of law, there are two excel- 
 lent reasons: first, the lease creates a vested estate in the 
 realty, and the covenant to pay rent simply specifies by what 
 instalments the consideration is to be given ; ^ secondly, the 
 act of God interfered in no manner with paying the money, it 
 did a thing entirely different. Yet, — 
 
 § 599. Failure of Consideration. - — If the consideration for 
 a promise fails through the act of God, it is discharged; as, 
 where one agreed to pay a sum for tuition during a specified 
 quarter, but was sick, the court refused to compel him. The 
 sickness, which in law is the act of God, did not disable him 
 to pay, but it rendered impossible his receiving the instruc- 
 tion, which was the foundation for the promise.® 
 
 § 600. Personal Services. -^ One who stipulates to serve an- 
 other in person, or to do for him anything else which cannot 
 
 1 Adams v. Nichols, 19 Pick. 275. < Baker w. Holtpzaffell, 4 Taunt. 45 ; 
 
 See Boyle v. Agawam Canal, 22 Pick. Packer v. Gibbins, 1 Q. B. 421, 5 Jur. 
 
 381 ; Dermott w. Jones, 2 Wal. 1 ; Raw- 1036 ; Izon v. Gorton, 5 Bing. N. C. 501, 
 
 son V. Clark; 70 111. 656. 3 Jur. 653. 
 
 * Adiard h. Booth, 7 Car. & P. * See, as illnstrative, Calloway v. 
 
 108. Hamby, 65 N. C. 631; Wilkinson «. 
 
 » 3 Kent Com. 465-467 ; 2 Chit. Cook, 44 Missis. 367 ; Dowdy v. Mc- 
 
 Con. 11th Am. ed. 1074; Paradine v. Leilan, 52 Ga. 408. 
 
 Jane, Aleyn, 26. ° Stewart v. Loring, 5 Allen, 306. See 
 
 237 
 
§ 604 IN GENERAL WITH ILLUSTRATIONS, [bOOK I. 
 
 be done by proxy, or for another's doing a thing of this na- 
 ture,^ is released if the act of God in the form of sickness 
 or of death prevents the doing ; no action can be maintained 
 against him or his administrator as for a breach of contract.^ 
 It is otherwise where the failure is from a less serious cause.^ 
 For an example of the former sort, — 
 
 § 601. Apprenticeship. — A contract of apprenticeship, 
 which is specially personal both to the apprentice and to the 
 master, is terminated by the death of either.* Again, — 
 
 § 602. Appearance Bond. — One bound for another's ap- 
 pearance in court is excused if, before the day, the latter dies.^ 
 On the other hand, — 
 
 § 603. Performance by Proxy. — When the thing is of a 
 sort not requiring the services or superintendence of the prom- 
 isor in person, — for example, when it is the carpenter work 
 of a house, — his sickness creates no impossibility, for he can 
 perform by proxy.* Or, if in such a case he dies, his personal 
 representatives are entitled to perform, and collect the agreed 
 compensation ; "^ and they must do it, or respond in damages.* 
 On the other hand, the party surviving is thus in default if he 
 obstructs fulfilment by the other's administrator.^ Hence, — 
 
 § 604. Sickness deterring. — "Whether sickness is to con- 
 stitute an excuse or not, as being the act of God, will depend 
 on the circumstances of the case, and perhaps in some degree 
 on the special views of the particular tribunal. According 
 to one case, if, at the place where labor contracted for is to be 
 
 Anglo-Egyptian Nav. Co. v. Eennie, 418; Hayes v. Willio, 4 Daly, 259; 
 
 Law Rep. 10 C. P. 271. Davenport v. Gentry, 9 B. Monr. 427. 
 
 1 Spalding v. Rosa, 71 N. Y. 40, 44. « Scully v. Kirkpatrick, 29 Smith, 
 
 2 Knight V. Bean, 22 Maine, 531; Pa. 324. For a fuller explanation, see 1 
 Robinson v. Davison, Law Rep. 6 Ex. Bishop Crim. Proced. § 264 i. 
 
 269 ; Stubbs v. Holywell Railway, Law " Cassady v. Clarke, 2 Eng. 123. 
 Rep. 2 Ex. 311 ; Poussard v. Spiers, 1 7 Werner v. Humphreys, 3 Scott, 
 
 Q. B. D. 410, 414; Harrington v. Fall N. R. 226, 2 Man. & G. 853. 
 River Iron Works, 119 Mass. 82 ; Siler 8 Hawkins v. Ball, 18 B. Monr. 816 ; 
 
 V. Gray, 86 N. C. 566. Smith v. Wilmington Coal, &c. Co. 83 
 
 » Earp V. Tyler, 73 Misso. 617. 111. 498 ; Siler v. Gray, 86 N. C. 566. 
 
 * Boast V. Firth, Law Rep. 4 C. P. 1 ; And see Lloyd's v. Harper, 16 Ch. D. 
 
 Whincup V. Hughes, Law Rep. 6 C. P. 290. 
 
 78 ; Farrow v. Wilson, Law Rep. 4 ^ White v. Allen, 133 Mass. 423. 
 C. P. 744. See Martin v. Hunt, 1 Allen, 
 238 
 
CHAP. XX.] THE IMPOSSIBLE. § 608 
 
 done, a fatal and contagious disease prevails during all the 
 time, rendering it imprudent to work and therefore impos- 
 sible to procure suitable workmen, performance will be ex- 
 cused. Or if, before the contagion came, the work was in 
 part executed, the party may recover pay for it on a quantum 
 meruit.'^ In another case, a public school was suspended on 
 account of small-pox, but the teacher recovered the wages 
 provided for in his contract.^ 
 
 § 605. Substantial Ferformancs. — When there can be a 
 substantial performance of what in the exact terms of the 
 contract is impossible, it will be required.^ So if a statute 
 makes a contract in part unlawful, the remainder should be 
 carried out,* — but not, in reason, if the parts are so con- 
 nected that injustice will thus be done. And — 
 
 § 606. Alternative Provisions. — Where the undertaking is 
 to do one of two things, the impossibility of doing the one 
 does not excuse the doing of the other. ^ 
 
 § 607. Judicial Process, — interrupting the doing of the 
 thing, and rendering it impossible, will excuse performance.® 
 
 § 608. Conditions — in contracts are either precedent or 
 subsequent. But whether a particular condition is the one 
 or the other, if, when the contract is made, it is impossible 
 but not unlawful, it, only, is void ; and the rest of the con- 
 tract takes effect or is enforceable as though it contained no 
 condition.^ Yet if a condition precedent is not known to be 
 impossible at the making of the contract, and it becomes so 
 by the act of God, still the other party cannot be placed in 
 
 1 Lakeman v. Pollard, 43 Maine, 463. 13. See Erie Railway v. Union Loco- 
 And see Sickels v. United States, 1 Ct. motive, &c. Co. 6 Vroom, 240 ; Layton 
 of CI. 214. V. Pearce, 1 Doug. 15; Brown v. Royal 
 
 2 Dewey v. Alpena School Dist. 43 Ins. Co. 1 EUis & E. 853, 5 Jur. n. s. 
 Miuh. 480. 1255 ; Edwards v. West, 7 Ch. D. 858. 
 
 » White V. Mann, 26 Maine, 361 ; « Walker v. Pitts, 24 Pick. 191, 195 ; 
 
 Williams v. Vanderbilt, 28 N. Y. 217; Lord v. Thomas, 64 N. Y. 107; Bain v. 
 
 Chase v. Barrett, 4 Paige, 148. Lyle, 18 Smith, Pa. 60 ; Ohio, &c. Rail- 
 
 * Bettesworth v. St. Paul's, 1 Bro. way v. Yohe, 51 Ind. 181 ; Leopold v: 
 
 P. C. 240. Salkey, 89 HI. 412; People v. Globe 
 
 ^ Da Costa v. Davis, 1 B. & P. 242 ; Mut. Life Ins. Co. 91 N. Y. 174. 
 
 Stevens v. Webb, 7 Car. & P. 60, 62 ; ^ Co. Lit. 206 ; Hughes v. Edwards, 
 
 Barkworth v. Young, 4 Drew. 1, 3 Jur. 9 Wheat. 489 ; Merrill v. Bell, 6 Sm. & 
 
 N. 8. 34; Drake v. White, 117 Mass. 10, M. 730. See Barksdale v. Elam, 30 
 
 239 
 
§ 609 IN GENERAL WITH ILLUSTEATIONS. [BOOK I. 
 
 default while even for this cause it remains unperformed.^ 
 There are some nice and curious questions connected with 
 conditions rendered impossible by matter subsequent, but it 
 is best not to enter into them further here.^ 
 
 § 609. The Doctrine of this Chapter restated. 
 
 A principle in our law forbids that men shall suffer from 
 the inevitable.^ For example, one who lawfully and without 
 carelessness keeps an animal not known to be vicious, 
 is not responsible if it injures the person or property of 
 another.* On this principle, a man who has promised to do 
 a thing, but is prevented by overwhelming necessity, or by 
 an interdict from the law, will not be compelled to suffer as 
 for a breach of contract. Yet if his undertaking was to pay 
 the damages, it may be enforced ; for, where a loss may fall 
 on one from a contingent event, another can lawfully, on 
 receiving a consideration, assume it. This is a sort of insur- 
 ance, not violative of any rule of policy or of law. 
 
 But there are, both in natural reason and in the law, various 
 degrees of necessity. And, within the present topic, the 
 standard of necessity is what comes from the act of God, the 
 act of a public enemy, or the forbidding of the thing by law. 
 
 Missis. 694. According to Beswick v. " Co. Lit. 205, 206 ; Irion v. Hume, 
 
 Swindells, 5 Nev. & M. 378, 3 A. & E. 50 Missis. 419, 426; Bain v. Lyie, 18 
 
 868, where the condition of a bond is Smith, Pa. 60; Merrill v. Emery, 10 
 
 originally impossible, the bond is abso- Pick. 507 ; People v. Manning, 8 Cow. 
 
 lute ; where originally illegal, it is void. 297 ; Holland v. Bouldin, 4 T. B. Monr. 
 
 Where the condition becomes afterward 147. 
 
 impossible by the act of the obligor or * Australasian Steam Nav. Co. v. 
 
 a stranger, the bond is forfeited ; where, Morse, Law Rep. 4 P. C. 222, 228 ; 1 
 
 by the act of the obligee, it is saved. Bishop Crim. Law, § 346, 351 ; Terry ». 
 
 1 Mizell V. Burnett, 4 Jones, N. C. New Tork, 8 Bosw. 504; Newton v. 
 
 249 ; Poussard v. Spiers, 1 Q. B. D. 410; Pope, 1 Cow. 109. 
 
 Bettiniu. Gye,l Q. B.D.I 83; Howell * Dearth v. Baker, 22 Wis. 73; 
 
 y. Knickerbocker Life Ins. Co. 44 N. y. Decker v. Gammon, 44 Maine, 322; 
 
 276. Meredith v. Reed, 26 Ind. 334. 
 
 240 
 
CHAP. XXI.] VOID AND VOIDABLE. § 613 
 
 CHAPTER XXI. 
 
 THE VOID AND VOIDABLE IN CONTKACTS.^ 
 
 § 610-612. Introduction. 
 
 613-616. Void. 
 
 617-621. Voidable. 
 
 622. Doctrine of Chapter restated. 
 
 § 610. Inexact Meanings. — The words "void" and "void- 
 able " are, as practically employed in our law writings, among 
 the most inexact and variable.^ And while they number but 
 two, there are more than two ideas, or shades of idea, which 
 they are necessarily pressed into the service of conveying ; 
 some being plain and simple, others refined and complex. 
 Still, less minutely viewed, they are distinct in meaning, and 
 not difficult to be — 
 
 § 611. Defined. — A contract is void when it is without 
 any legal effect ;3 voidable, when it has some effect, but is 
 liable to be made void by one of the parties or a third person.* 
 
 § 612. How Chapter divided. — We shall consider, I. Void ; 
 II. Voidable. 
 
 I. Void. 
 
 § 613. One Meaning. — In exact legal language, " void " 
 has but the one meaning just given.^ To illustrate, — 
 
 1 Compare with the chapter on " Void Rep. 2 C. P. 492, 496 ; Manning v. Gill, 
 and Voidable," I Bishop Mar. & Div. Law Rep. 13 Eq. 485, 489. 
 
 § 104 a et seq. * Pearsoll v. Chapin, 8 Wright, Pa. 9. 
 
 2 1 lb. 104 a; Crocker v. Bellangee, * "What void. — As to what partic- 
 6 Wis. 645 ; Bromley v. Goodrich, 40 nlar contracts are void, Lowrle, C. J., in 
 Wis. 131 ; Kearney v. Vaughan, 50 Pearsoll v. Chapin, supra, at p. 14, 15, 
 Mlsso. 284, 287. said : " Contracts and acts that are ab- 
 
 ' Ante, § 188; Abbot v. Parsons, 3 solutely yoid are contracts to do an ille- 
 Bur. 1794, 1805; Baker ». Painter, Law gal act, or omit a legal public duty; 
 16 241 
 
§616 
 
 IN GENERAL WITH ILLUSTRATIONS. 
 
 [book I. 
 
 § 614. Consequences. — A void deed of land conveys noth- 
 ing.i A void sale of goods passes no title, though they are 
 delivered ; ^ not even operating as a gift.^ And persons other 
 than the direct parties, equally with them, may impeach a 
 void judgment.* There can be no confirmation of a void con- 
 tract ; ^ nor will it constitute an adequate consideration for a 
 new one.^ Still, — 
 
 § 615. Recover back. — The performance of a void con- 
 tract may produce consequences not void ; as, if one volunta- 
 rily and with full knowledge of the facts pays money on it, he 
 cannot recover the money back.' 
 
 § 616. " Void " for " Voidable." — In spite of what we have 
 thus seen to be the true meaning of the word void, it is often 
 used, both in law writings ^ and in statutes,^ in the sense of 
 voidable.^" Nor is such use quite without reason ; for a void- 
 able thing is void whenever the party entitled chooses to avoid 
 it.^^ And it is precisely accurate to say that a thing is void at 
 the election of the party, meaning voidable; for example, a 
 
 usually bonds of married women ; con- 
 tracts in a form forbidden by law ; offi- 
 cial acts of persons having no recognized 
 de facto or de jure title to the office ; 
 contracts to do an impossible thing, or 
 that leave uncertain the thing to be 
 done, and such like. These are abso- 
 lutely void, because they have no legal 
 sanction, and establish no legitimate 
 bond or relation between the parties, 
 and even a stranger may raise the ob- 
 jection. 2 Leon. 218; Moore, 105. 
 The law cannot enforce that, the doing 
 of which would be a wrong to itself or 
 to public order." Other illustrations of 
 the void contract appear in various con- 
 nections throughout this work. 
 
 1 Manning v. Gill, Law Rep. 13 Eq. 
 485. 
 
 2 Com. Dig. " Enfant," C. 2. 
 8 Ante, § 82. 
 
 * Martin v. Judd, 60 111. 78 ; Kear- 
 ney V. Vaughan, 50 Misso. 284, 287. 
 
 s Ante, §542; Perkins, §154, as 
 
 cited by Lord Mansfield in Abbot v. 
 
 Parsons, 3 Bur. 1794, 1805 ; Lowrie, 
 
 C. J., in PearsoU v. Chapin, 8 Wright, 
 
 242 
 
 Pa. 9, 15; Mcintosh v. Lee, 57 Iowa, 
 356. 
 
 6 Murphy v. Jones, 7 Ind. 529 ; Ehle 
 V. Judson, 24 Wend. 97 ; Jarvis v. Sut- 
 ton, 3 Ind. 289. 
 
 ' Ante, § 81, 82 ; Woodbum v. Stout, 
 28 Ind. 77. And see Babcock v. Eond 
 du Lac, 58 Wis. 230. But see Gist v. 
 Smith, 78 Ky. 367. 
 
 8 PearsoU v. Chapin, 8 Wright, Pa. 
 9, 13; Matthews v. Baxter, Law Rep. 
 8 Ex. 132, 133. 
 
 9 St. Nicholas's Case, 2 Stra. 1066, 
 Cas. temp. Hardw. 323 ; Rex u. Evered, 
 Cald. 26 ; Ewell ». Daggs, 108 U. S. 
 143 ; Young v. Billiter, 8 H.L. Cas. 682, 
 7 Jur. N. s. 269 ; Anderson v. Roberts, 
 18 Johns. 515 ; Van Shaack i>. Robbins, 
 36 Iowa, 201. But it is not always so 
 in a statute. Pearse r. Morrice, 2 A. & 
 E. 84. 
 
 w Kearney v. Vaughan, 50 Misso. 
 284, 287 ; Seylar w. Carson, 19 Smith, 
 Pa. 81 ; Allis v. Billings, 6 Met. 415, 
 417. 
 
 11 Crocker v. Bellangee, 6 Wis. 645; 
 Bromley w. Goodrich, 40 Wis. 131. 
 
CHAP. XXI.] VOID AND VOIDABLE. § 618 
 
 contract between an infant and an adult to marry is made 
 void by the refusal of the infant.^ " Provisions in leases," 
 said Lowrie, C. J., " are very common, that, if the tenant shall 
 not, with due promptness, perform his covenants to build, re- 
 pair, insure, pay rent, and such like, the lease shall be void, 
 or utterly null and void, to all intents and purposes, or ex- 
 pressions of similar import ; yet these terms are very often, 
 perhaps generally, held to mean voidable, and not void." ^ 
 
 II. Voidable. 
 
 § 617. Variable — as we have seen the word " void " to be 
 in practical use, " voidable " is still more so. The expression 
 in our definition,^ that the voidable contract "has some effect," 
 is as precise as the truth of the law permits, for the effects 
 differ ; so the rest of the definition, that it " is liable to be 
 made void by one of the parties or a third person," truly 
 represents the variable law, which requires the avoiding 
 to be done by different persons or methods according to the 
 nature of the case. The foundation of the difficulty seems 
 to be in the paucity of the language, which has but the 
 one word to express a considerable number of ideas.* To 
 illustrate, — 
 
 § 618. In Fraud, Infancy, Insanity. — Not to attempt abso- 
 lute accuracy here, in what will be more satisfactorily stated 
 in chapters further on, largely, but not in all circumstances, 
 a contract vitiated by fraud, infancy, or insanity is not void 
 but voidable. The effect whereof is, that, for example, a sale 
 by the incapable or defrauded person, made in due form, 
 transmits the seisin or ownership of the lands or goods, and 
 the avoiding thereof reinvests them in the seller; but if, 
 while the sale remained voidable, they were transmitted for a 
 
 1 Holt V. Clarencieax, 2 Stra. 937, v. Palmer, 19 C. B. n. 8. 393, II Jur. 
 939 ; the expression in this case being, n. s. 876. 
 
 however, " voidable at his election." ^ Ante, § 611. 
 
 2 PearsoUf. Chapin.ut sup. atp. 13. * And see 1 Bishop Mar. & Div. 
 And see Rede v. Earr, 6 M. & S. 121 ; § 104a, and the observations of Lowrie, 
 Nash V. Birch, 1 M. & W. 402 ; Hughes C. J., in PearsoU v. Chapin, 8 Wright, 
 
 Pa, 9. 
 
 243 
 
§ 622 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 valuable consideration to a third person, the consequences 
 vary with the cases. 
 
 § 619. In Marriage. — In matrimonial law, the term " void- 
 able" is employed in a considerable variety of meanings, 
 some of which are unknown in the ordinary law of contracts.^ 
 Commonly and strictly, by the unwritten marriage law, a 
 voidable marriage, while it remains so, has the same effect as 
 a perfect one ; and it can be avoided only, during the lives of 
 both parties, by a judicial sentence, pronounced in a suit in- 
 stituted for the very purpose.^ 
 
 § 620. Ratify — Avoid. — Unlike void contracts,^ the void- 
 able may, in general, and perhaps always if the right means 
 are employed, be perfected by ratification.* They can be 
 avoided only by parties entitled,^ and in ways which the 
 law permits. For most, a mere declaration or act in pais, 
 from the proper person, suflBces ; but some require judicial 
 process. As to which, and further questions, — 
 
 § 621. In Conclusion. — The reader's attention having thus 
 been directed to the distinctions under consideration, he can 
 now, aided by these general views, best master the details in 
 connection with particular topics as they arise. 
 
 § 622. The Doctrine of this Chapter restated. 
 
 There is only one sort of " void " contract, in the strict 
 meaning of the word. But, less accurately, the books often 
 speak of voidable contracts as void. Any contract which has 
 some legal effect, yet which one of the parties or a third person 
 can make void, is termed " voidable." But the qualities of 
 this contract, and the methods of avoiding it, differ. There 
 are, therefore, many varieties of the voidable ; yet they can 
 be particularized only by circumlocution, our language not 
 having separate words to designate them. 
 
 1 1 Bishop Mar. & Div. § 105-120. Ex. 1.32; Benedict v. National Bank, 4 
 
 2 lb. § 105. Daly, 171. 
 
 8 Ante, § 614. « Martin v. Judd, 60 111. 78; Hughes 
 
 * Matthews v. Baxter, Law Eep. 8 v. Palmer, 19 C. B. u. 8. 393, 11 Jur. 
 
 N. 8. 876. 
 
 244 
 
CHAP. XXII.] EXECUTORY AND EXECUTED. § 627 
 
 CHAPTER XXII. 
 
 CONTRACTS DISTINGUISHED AS EXECXJTOEY AND EXECUTED. 
 
 § 623. Elsewhere. — In the chapter on the Consideration, 
 there is much which might well be deemed a part of the 
 present one.^ So, in various other connections, this distinc- 
 tion is more or less explained as to the particular topics. 
 
 § 624. " Executory," " Executed," defined. — A contract is 
 executory when the thing agreed has not been done.^ It is 
 executed when the thing has been done.^ After one party 
 has performed while the other has not, it is said to be exe- 
 cuted on the one side and executory on the other.* One who 
 has begun to do what he promised, but has not finished, has 
 executed his undertaking in part. 
 
 § 625. Effect of Executed. — Subject to exceptions growing 
 out of special reasons, the execution of a contract cures all 
 defects therein. Thus, — 
 
 § 626. Consideration. — We have already seen, that the 
 want of a consideration is of no avail against an executed 
 contract.^ Again, — 
 
 § 627. lUegal Contract Executed. — An agreement to do a 
 thing contrary to law or public policy can be enforced by 
 neither party against the other .^ But the parties' voluntary 
 doing of what they had unlawfully agreed places them, in 
 e£fect,-in the same position as if the contract had been origi- 
 nally good ; neither can recover of the other what was parted 
 
 1 Ante, § 76-93. * And see ante, § 85-87. 
 
 2 Fletcher v. Peck, 6 Cranch, 87, 136. « Ante, § 80-84. 
 
 » Frazer v. Robinson, 42 Missis. 121 ; ' Ante, § 467 et seq. 
 
 Robison v. Robison, 44 Ala. 227. 
 
 245 
 
§ 631 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 with. The reason for which is,^ that, since they are equally 
 in fault, the law will help neither.^ Hence, — 
 
 § 628. Unlawful in One. — If, as in some special cases it 
 happens, the contract was unlawful in one of the parties 
 only ,3 the other may recover back what he has paid under 
 it.* And this principle is sometimes carried to the extent 
 that, — 
 
 § 629. One less in Fault. — If both are in fault, yet not 
 equally so, and especially if the one more in the wrong has 
 taken any undue advantage of the other, the more culpable 
 party may be compelled to refund what the less culpable has 
 paid.^ 
 
 § 630. Voluntary, not Illegal. — Where neither party has 
 violated law or public policy, and there is no fraud, duress, 
 or anything of the sort, a voluntary payment which one with 
 full knowledge of the facts has made to the other cannot 
 be recovered back, though he was not compellable to make 
 it, and he did it under protest. The executed transaction 
 stands.® 
 
 § 631. Mistake of Law. — As all persons are conclusively 
 presumed to know what the law is,^ one who makes a 
 payment supposing himself compellable while he is not — 
 that is, pays under a mistake of law — cannot recover the 
 
 1 Ante, § 489. V. Costello, 48 N. H. 176 ; Delhomme v. 
 
 2 Ante, § 509, and note, 545 ; Green- Duson, 28 La. An. 646. 
 wood V. Curtis, 6 Mass. 358 ; Levet v. » Ante, § 481, 482, 489. 
 Creditors, 22 La. An. 105 ; Morris v. * Jaqnes v. Golightly, 2 W. Bl. 1073, 
 Hall, 41 Ala. 510; Green v. HoUings- 1075, and other English and American 
 worth, 5 Dana, 173 ; IngersoU v. Camp- cases cited by Selden, J., in Tracy v. 
 bell, 46 Ala. 282 ; Marksbury w. Taylor, Talmage, 4 Kernan, 162, 183 et seq. 
 10 Bush, 519 ; Myers v. Meinrath, 101 And see Curtis v. Leavitt, 15 N. Y. 9. 
 Mass. 366 ; Barnard v. Crane, 1 Tyler, 6 Smith v. Bromley, 2 Doug. 695, 
 457; Burt ». Place, 6 Cow. 431; Bab- note; Worcester k. Eaton, 1 1 Mass. 368, 
 cock V. Thompson, 3 Pick. 446 ; Worces- 376 ; Tracy v. Talmage, 4 Keinan, 162, 
 ter ». Eaton, 11 Mass. 368 ; Merwin u. 181. And see ante, § 489. 
 Huntington, 2 Conn. 209; Groton v. 6 Await w. Eutaw Building Associa- 
 Waldoborough, 2 Eairf. 306 ; Jacobs tion, 34 Md. 435 ; Williams v. Colby, 44 
 V. Stokes, 12 Mich. 381 ; Spalding v. Vt. 40; Commercial Bank v. Eeed, 11 
 Muskingum, 12 Ohio, 544 ; Tyler v. Ohio, 498 ; Patterson v. Cox, 25 Ind. 
 Smith, 18 B. Monr. 793; Liness v. Hes- 261 ; Benson v. Monroe, 7 Cash. 125; 
 ing, 44 HI. 113; Arter v. Byington, 44 Cook v. Boston, 9 Allen, 393. 
 
 111. 468; Boutelle v. Melendy, 19 N. H. ' Ante, § 462. 
 196; Kerr i>. Birnie, 25 Ark. 225; Hall 
 
 246 
 
CHAP. XXII.] EXECUTORY AND EXECUTED. § 634 
 
 money back. In legal contemplation, his act was voluntary.^ 
 But, — 
 
 § 632. Fact mistaken — Fraud — Duress of Goods. — If he 
 paid under a mistake of fact,^ or through fraud or other con- 
 straint from the other party,^ or to prevent being dispossessed 
 of his property, though he knew the demand to be illegal,* 
 he may have his money again. 
 
 § 633. Why Recovery back — (Promise created). — Where, 
 as in some of the foregoing cases, the law compels the party 
 to pay back money, — the original payment whereof was in 
 the nature of an executed contract, — the reason is, that such 
 payment was not purely voluntary, and was received in the 
 other's wrong; so, to establish justice, the promise to refund 
 is created. 
 
 § 634. Oral. — A contract which cannot be enforced be- 
 cause not conformable to statutes requiring it to be in writ- 
 ing, is rendered, by voluntary execution, good ; ^ neither party 
 can undo what has thus been done.® Even execution on one 
 side, if thereby the terms of the statute are satisfied, will ren- 
 der the oral promise binding ; thus, when one has accepted a 
 conveyance of land, he cannot avoid paying for it by showing 
 that the contract of purchase was oral.'^ Or, if the statute is 
 not satisfied by the execution on one side, the party cannot 
 be compelled to refund, so long as he is willing to carry out 
 the parol bargain. If he refuses, then he must refund. The 
 law creates the promise that he will.* 
 
 1 Elliott V. Swartwout, 10 Pet. 137, Pa. 142 ; Beckwith v. Frisbie, 32 Vt. 
 Mowatt V. Wright, 1 Wend. 355 ; Bran- 559 ; Elston v. Chicago, 40 111. 514 ; 
 ham V. San Jose, 24 Cal. 585 ; SUliman Harvey v. Olney, 42 111. 336 ; Quinnett 
 V. Wing, 7 Hill, N. Y. 159. v. Washington, 10 Misso. 53. 
 
 2 Manchester u. Bnma, 45 N. H. 482 ; 5 Sovereign v. Ortmann, 47 Mich. 
 Bank of Commerce v. Union Bank, 3 181. See Young v. Royal Leamington 
 Comst. 230; North v. Bloss, 30 N. Y. Spa, 8 App. Cas. 517. 
 
 374 ; Pearson v. Lord, 6 Mass. 81 ; Bond « Cocking v. Ward, 1 C. B. 858 ; 
 
 V. Hays, 12 Mass. 34, 36 ; Lazell v. Mil- Freeman v. Headley, 4 Vroom, 523. 
 
 ler, 15 Mass. 207; Mowatt v. Wright, 1 ' Galley v. Galley, 14 Neb. 174. 
 
 Wend. 355 ; Burr v. Veeder, 3 Wend. 8 Beaman v. Buck, 9 Sm. & M. 207 ; 
 
 412; Dickins w. Jones, 6 Yerg. 483. Richards v. Allen, 17 Maine, 296; 
 
 s Post, § 682, 725. Congdon v. Perry, 13 Gray, 3 ; Bennett 
 
 « Maxwell v. Griswold, 10 How. U. S. v. Phelps, 12 Minn. 326 ; Marsh o. Wyc- 
 
 242; Harmony v. Bingham, 2 Keman, koff, 10 Bosw. 202; Clancy v. Cralne, 2 
 
 99, 109 ; White v. Heylman, 10 Casey, Dev. Eq. 363. 
 
 247 
 
§ 636 IN GENERAL WITH ILLUSTEATIONa. [BOOK I. 
 
 § 635. other Illustrations — of the distinction between ex- 
 ecutory and executed contracts, and the effect of it, might 
 be added in great numbers. But the doctrine sufficiently 
 appears already ; and the further illustrations, with various 
 expansions of those here given, will be more serviceable in 
 connection with the particular topics. 
 
 § 636. The Doctrine of this Chapter restated. 
 
 In general, when a thing contracted for is performed, noth- 
 ing of the bargain remains but its consequences. We call 
 this an executed contract. Before the thing was done, the 
 contract was termed executory. All obstructions to the exe- 
 cution, arising from defects or imperfections in the form or 
 substance, are removed by the parties in their voluntary doing. 
 If, in such doing, any equities between them have arisen, 
 of a sort whereof the law can take cognizance, it will create 
 a contract for their adjustment, but in most cases there are 
 none. 
 
 248 
 
CHAP. XXIII.] FBATO. § 639 
 
 CHAPTER XXIII. 
 
 FRAUD IN THE CONTEACT. 
 
 § 637. Introduction. 
 
 638-640. Belations of Subject. 
 
 641-643. In General of Fraud. 
 
 644-649. As to Signing and Delivery. 
 
 650-670. In Substance of Contract. 
 
 671-691. Nature and Effect of Fraudulent Contract. 
 
 692. Doctrine of Chapter restated. 
 
 § 637. How Chapter divided. — We shall consider, I. The 
 Relations of this Subject to others ; II. In General of Fraud ; 
 
 III. The Fraud which vitiates the Signing and Delivery ; 
 
 IV. The Fraud which vitiates the Substance of the Contract ; 
 
 V. The Nature and Effect of the Fraudulent Contract. 
 
 I. The Relations of this Subject to others, 
 
 § 638. The Principle — on which depend the doctrines of 
 this and several other chapters has already been stated to be, 
 that, to constitute a contract made by the parties, not includ- 
 ing herein the creations of the law,^ they must concurrently 
 assent to exactly the same thing at the same instant of time.^ 
 Now, — 
 
 § 689. What within Principle. — Mental Incapacity, Cover- 
 ture, and Infancy are severally within this principle, but they 
 all differ from fraud. Similar to fraud, and in some particulars 
 so nearly identical with it that the partition lines are scarcely, 
 if at all, discernible, are Mistake, Duress or Compulsion, Un- 
 due Influence, and what by some is termed Misrepresentation. 
 
 1 Ante, § 184. 2 Ante, § 313 ; post, § 693. 
 
 249 
 
§ 641 IN GENERAL WITH ILLUSTRATIONS. [bOOK I. 
 
 Weakness of Intellect, Fiduciary Relations, and various other 
 like things mingle with these. 
 
 § 640. Divisions of Subject. — Some authors and many- 
 readers make a great point of classification ; that is, of the 
 manner in which, from pleasure or fancy, the law being seam- 
 less and knowing no divisions,^ the expositions of a larger 
 topic are divided into inferior titles. The present author 
 takes the liberty of following, on every such question, the 
 course indicated by the particular matter in hand as conve- 
 nient, perspicuous, and effective in demonstration. In the 
 present instance, misrepresentation, if dishonest, is fraud ; if 
 honest, it is mistake ; weakness of intellect, standing alone, 
 is insanity ; mingled with fraud, it is both ; undue influence 
 has a doctrine of its own, while yet it blends with weakness 
 of intellect and with fraud. These are but illustrations. The 
 reader wiU see that, while we have here some distinct parti- 
 tion lines, there are other places at which the contact between 
 the different sub-topics will not bear even this name, they are 
 as truly one as the undivided sea. To undertake an apparent 
 partition, where the nature of things has forbidden that any 
 should be, and demand of the reader to call it scientific, 
 would be simply ridiculous. The author, craving the pardon 
 of any reader who may ask for what does not exist, and what 
 does not admit of being created, will proceed with the expo- 
 sitions after such divisions as may seem to him convenient. 
 
 II. In General of Fraud. 
 
 § 641. Throughout Law. — There is believed to be no assign- 
 able limit beyond which fraud is destitute of legal effect.^ 
 It vitiates every transaction, whether of contract, of judicial 
 proceeding, or otherwise, into which it enters.^ "Fraud 
 and deceit, by him who is trusted, are most odious in law." 
 " The common law doth so abhor fraud and covin that all 
 acts, as well judicial as others, and which of themselves are 
 
 1 Ante, § 490. 
 
 2 Yet, as to fraud on a legislature, see Bishop Written Laws, § 38. 
 8 Jones V. Emery, 40 N. H. 348. 
 
 250 
 
CHAP. XXIII.] FRAUD. § 645 
 
 just and lawful, yet being mixed with fraud and deceit, are 
 in judgment of law wrongful and unlawful." ^ 
 
 § 642. In Law of Contracts. — When a man gives formal 
 consent to a thing, impelled thereto by representations which 
 he is induced to accept as facts, while they are not such, his 
 act is not what it appears to be. His will does not coincide 
 with what outwardly he does. He consents to the thing 
 which is not, but not to the thing which is. And the party 
 responsible for this wrong and its effect ^ cannot avail himself 
 of any supposed right growing out of the mockery of a con- 
 tract;^ for wemo ex propria dolo consequitur actionem, no one is 
 permitted to extract a right from his own wrong.* Hence — 
 
 § 643. Defined. — We may define the fraud now under 
 consideration to be any spoken or acted falsehood, whereby 
 one is induced to enter into what in form is a contract, under 
 the belief that it is a different thing from what it is, or that 
 there is for it a motive which does not in truth exist. 
 
 III. TJhe Fraud which vitiates the Signing and Delivery.^ 
 
 § 644. Elsewhere. — We saw, in a preceding chapter,® what 
 are the signing and delivery which transmute written stipula- 
 tions into a contract, and incidentally something of fraud 
 therein. 
 
 § 645. Procured by Fraud. — If such signing and delivery 
 are procured from one of the parties who is in the exercise of 
 due care,'^ by the other's fraud, causing him to believe that 
 the writing is something different from what it is, he is 
 not in law bound thereby .^ Nor is one bound who, in like 
 
 1 Fermor's Case, 3 Co. 77 a, 78 a, Anderson v. Warne, 71 111. 20 ; Hopkins 
 79 6. , V. Hawkeye Ins. Co. 57 Iowa, 203 ; 
 
 2 Vass V. Eiddick, 89 N. C. 6 ; Perley Weaver v. Carpenter, 42 Iowa, 343. 
 V. Catlin, 31 111. 533. For some distinctions, see ante, § 346. 
 
 ' Central Bank v- Copeland, 18 Md. And see post, § 648, 655. 
 305; Mead v. Bunn, 32 N. Y. 275, 278; 8 Ante, § 346; Jones v. Austin, 17 
 
 Duncan v. McCuUongh, 4 S. & E. 483. Ark. 498 ; Byers v. Daugherty, 40 Ind. 
 
 1 Fisher v. Saylor, 28 Smith, Pa. 84. 198; Laidla v. Loveless, 40 Ind. 211 ; 
 
 5 Compare with ante, § 342-348. Selden v. Myers, 20 How. U. S. 506 ; 
 
 ' Ante, § 335 et seq. Foy v. Haughton, 83 N. C. 467 ; Davis 
 
 7 De Camp I). Hamma, 29 Ohio State, v. Snider, 70 Ala. 315 ; Resh v. Alleu- 
 
 467; Robinson v. Glass, 94 Ind. 211 ; town Bank, 12 Norris, Pa. 397; May v. 
 
 251 
 
§ 648 IN GENEBAL WITH ILL0STEATIONS. [BOOK I. 
 
 circumstances, accepts a deed with a clause imposing an obli- 
 gation on him.i Now, — 
 
 § 646. Third Person — (Void). — When a party has thus in 
 form, impelled by fraud, put his name to something different 
 from what he meant, he has not truly executed any contract. 
 And his position toward the writing is not the same as though, 
 under a purpose to sign it created by the like fraud, he had 
 still subscribed to what he intended, — to be explained under 
 our next sub-title. If the reader will consult some previous 
 sections,^ he will see that on nearly or exactly this question 
 there are differences of judicial opinion. But, guided by the 
 greater number of the cases now before the author, and, 
 equally with them, by principles of the law whose effect can 
 probably be intercepted only by special circumstances, we are 
 conducted to the following. Such a contract is not merely 
 voidable, it is void.^ Being in the nature of a forgery, not 
 even an innocent third person can take under it any benefit* 
 To illustrate, — 
 
 § 647. Negotiable Paper. — Though the law goes far to pro- 
 tect innocent third persons in their rights to negotiable paper 
 valueless as between the original parties, yet bills and notes 
 brought into existence by the fraud now under consideration, 
 and without laches in their makers, are, like forged paper, 
 void as well in the hands of an innocent holder as of the 
 original payee.^ As a qualification of this, — 
 
 § 648. Negligence — in the maker,® in putting his name to 
 such paper, will, at least by some opinions, estop him from 
 setting up this defence when sued by a holder who is without 
 fault.^ And — 
 
 Seymour, 17 Fla. 725 ; Strong v. Lin- ' Kellogg v. Steiner, 29 Wis. 626; 
 
 ington, 8 Bradw. 436. Whitney v. Snyder, 2 Lans. 477 ; Corby 
 
 1 Albany City Sav. Inst. v. Burdick, v. Weddle, 57 Misso. 452 ; Munson v. 
 87 N. Y. 40. Nichols, 62 111. Ill ; Butler v. Cams, 37 
 
 2 Ante, § 346, 348. Wis. 61 ; Briggs v. Ewart, 51 Misso. 
 » Hunter K. Walters, Law Rep. 7 Ch. 245; Woods v. Hynes, 1 Scam. 103; 
 
 Ap. 75, 81 ; Stacy v. Ross, 27 Texas, 3; Vanbrunt v. Singley, 85 111. 281. 
 
 Eovegno v. Defferari, 40 Cal. 459. « But see, as to negligence in these 
 
 * Thoronghgood's Case, 2 Co. 9 a ; cases generally, ante, § 645. Compare 
 
 Foster V. Mackinnon, Law Rep. 4 C. P. with Redgrave v. Hurd, 20 Ch. D. 1, 13. 
 
 704; lure Cooper, 20 Ch.D. 611. ' Nebeker v. Cutsinger, 48 Ind. 
 
 252 
 
CHAP. XXIII.] FRAUD. § 651 
 
 § 649. Contrary Doctrine. — There is some authority for 
 holding, in the ordinary case, the party who has thus been 
 seduced by fraud into the signing of negotiable paper, respon- 
 sible to the innocent possessor for value.^ 
 
 IV. The Fraud which vitiates the Substance of the 
 Contract. 
 
 § 650. Doctrine in Epitome. — A contract is fraudulent as 
 against one who, whether acting personally or through an- 
 other for whose doings therein he is responsible, causes, by 
 misrepresentations of material facts, by silence where legal 
 duty requires him to speak, or by any other undue means, 
 the other party to enter into it, believing and moved 
 by the unreal, thus falsely made to appear as real. Not 
 aU fraudulent contracts are within the exact form of this 
 proposition,^ but all are within the principle. To illus- 
 trate, — 
 
 § 651. Active Misrepresentation. — The common case is 
 where the defrauding party tells the other what he knows to 
 be untrue regarding the subject of a bargain in negotiation ; 
 as, that a horse is sound when it is not,** that the income from 
 the thing is greater than it is,* that the soil of land in ques- 
 tion is productive ^ or the neighborhood is healthy ® beyond 
 the fact, that persons named have embarked in the enterprise 
 while they have not,'' that no other creditors are to be paid 
 
 436. And see Foster v. Mackinnon, ' Myton v. Thurlow, 23 Kan. 212; 
 
 Law Rep. 4 C. P. 704 ; Spurgin v. Traub, Jones v. Edwards, 1 Neb. 1 70. 
 
 65 111. 170. 4 Croslaud v. Hall, 6 Stew. Ch. Ill ; 
 
 1 Kimble v. Christie, 5.') Ind. 140; Smith u. Land and House Prop. Corp. 
 Draper v. Cowles, 27 Kan. 484. And 28 Ch. D. 7 ; Arbnckle v. Biederman, 
 see ante, § 346, 348. 94 Ind. 168 ; Hutchinson v. Morley, 7 
 
 2 For example, Hnlett v. Fairbanks, Scott, 341, 3 Jnr. 288. 
 
 40 Ohio State, 233 ; Darst v. Thomas, ^ Messer v. Smyth, 59 K. H. 41 ; Hop- 
 
 87 111. 222 ; Gross v. McKee, 53 Missis, kins v. Snedaker, 71 111. 449 ; Rhoda v. 
 
 536. Transfer of Stock. — A share- Annis, 75 Maine, 17. 
 
 holder in a national bank, knowing it ' Holmes's Appeal, 27 Smith, Pa. 
 
 was about to fail, transferred, to escape 50. 
 
 liability, his shares to an irresponsible ' Penn Mut. Life Ins. Co. v. Crane, 
 
 third person ; and this was adjudged to 134 Mass. 56 j Hedden v. Griffin, 136 
 
 be a fraud, leaving him still liable. Mass. 229. 
 
 Bowden v. Johnson, 107 U. S. 251. 
 
 253 
 
§ 654 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 more than those compromised with,^ and numberless other 
 things of the like sort.^ 
 
 § 652. Relevant and Material. — The misrepresentations 
 must relate to the subject of the contract ; independent ones, 
 as to some disconnected thing, not being sufficient.* But 
 they need not be directly related ; they will suffice if so 
 closely connected that, but for them, the party would not 
 have entered into it.* And they must be of material facts, 
 properly constituting an inducement,^ though not necessarily 
 the sole inducement, to the contract.® 
 
 § 653. Believed and Causing. — If a misrepresentation is 
 not believed, plainly it has no effect. And, to impair a 
 contract, it must, in fact, have produced the party's con- 
 sent. The presumption is that it did ; still, if the contrary is 
 shown, — as, for example, if the real fact appears by the evi- 
 dence to have been known to the other party, — it is without 
 legal effect. To move a court, injury must attend the fraud.' 
 Still,— 
 
 § 654. other Inducements Concurring. — It is not essential 
 that the believed falsity should have been the only induce- 
 ment to the contract ; it suffices that, without it, the consent 
 would not have been given. Such is the rule in the criminal 
 
 1 Baldwin i'. Eosenman, 49 Conn, ley, 8 Hun, 636 ; Cornfoot v. Fowke, 6 
 105. See Bebout v. Bodle, 38 Ohio M. & W. 358. 
 
 State, 500 ; Elfelt v. Snow, 2 Saw. 94. " Cunningham v. Shields, 4 Hayw. 
 
 2 For example, Gove v. Colborn, 10 44, 46; Casey v. Allen, 1 A. K. Mar. 
 Stew. Ch. 319; In re Great Berlin 465; Fishback u. Miller, 15Nev. 428; 
 Steamboat Co. 26 Ch. D. 616 ; Broad v. Gunby v. Sinter, 44 Md. 237 ; Meyer v. 
 Munton, 12- Ch. D. 131 ; Cowley v. Yesser, 32 Ind. 294; Bailey v. Smock, 
 Dobbins, 136 Mass. 401 ; Meyers v. 61 Misso. 213 ; People v. Cook, 4 Sel- 
 Funk, 56 Iowa, 52 ; School Directors v. den, 67, 79 ; Castleman v. Griffin, 13 
 Boomhoar, 83 111. 17; Lindauer v. Hay, "Wis. 535 ; Anderson v. Burnett, 5 How. 
 61 Iowa, 663. Missis. 165 ; Ely v. Stewart, 2 Md. 408 ; 
 
 8 Ingram v. Jordan, 55 Ga. 356. Pollock Con. 480, and English cases cited 
 
 See, also, Pollock Con. 484-486. by him ; as Attwood o. Small, 6 CI. & 
 
 1 Canham v. Barry, 15 C. B. 597, 1 F. 232, 395, 444 ; Smith v. Kay, 7 H.L. 
 
 Jur. N. 8. 402. Cas. 750, 775, 776 ; Horsfall v. Thomas, 
 
 ' And see post, ■§ 670. 1 H. & C. 90, mentioned in Smith ». 
 
 6 Hull V. Fields, 76 Va. 594 ; Winter Hughes, Law Rep. 6 Q. B. 597, 605 ; 
 
 V. Bandel, 30 Ark. 362 ; Righter v. Williams's Case, Law Rep. 9 Eq. 225, 
 
 Roller, 31 Ark. 170 ; Safford v. Grout, note; Watson v. Charlemont, 12 Q. B. 
 
 120 Mass. 20; Selma, &c. Railroad v. 856,864; and some others. See Moens 
 
 Anderson, 51 Missis. 829; Hill v. Car- v. Heyworth, 10 M. & W. 147. 
 254 
 
CHAP, XXIII.] FRAUD. § 656 
 
 law of false pretences,^ and the reasons are exactly the same 
 in the law of civil fraud.^ 
 
 § 655. Carelessness in Believing. — If the party to whom 
 the misrepresentation was made had the means of verifying 
 the facts, the conclusion will be the more easily drawn that, 
 availing himself of his opportunities, he did verify them, and 
 therefore did not act upon the falsehood.^ Still, in matter of 
 law, should he have chosen to rely on the misrepresentation 
 without inquiry and without suspicion, it will avail him in an 
 allegation of fraud. Not even the exercise of ordinary care is, 
 in such a case, indispensable.* We have seen that the doc- 
 trine is not quite so when applied to the formal execution of 
 the contract.^ The question doubtless presents some difficul- 
 ties which further adjudications, it is to be hoped, may re- 
 move. Returning to the inquiry within this sub-title, the 
 reposing of undue confidence, or the temporary absence of 
 ordinary caution, by a person of average shrewdness, business 
 capacity, circumspection, and suspicion should, in reason, be 
 no more unfavorably regarded than general — 
 
 § 656. TATeakness of Intellect — (^Drunkenness). — If the 
 mind of the person to whom the fraud was addressed was 
 weak, and especially if it was verging toward insanity, or if he 
 was drunk, the fraud may thereby be rendered complete when 
 otherwise, under the circumstances, it would not be.^ A 
 question something like the one in this section and the last 
 
 1 2 Bishop Crim. Law, § 461. H. L. 99, 120; 2 Chit. Con. 11th Am. 
 
 2 And see Leake Con. 2d ed. 379. ed. 1040, 1041 ; Leake Con. 2d ed. 380- 
 "It is not sufficient for him to show that 383. 
 
 there were other representations or in- ^ Ante, § 645, 646, 648. 
 
 ducements in operation without further " Owings's Case, I'Bland, 370; Dodds 
 
 proving that the agreement was due to v. Wilson, 1 Tread. 448, 3 Brev. 389 
 
 them only, to the entire exclusion of the Somes v. Skinner, 16 Mass. 348, 358 
 
 false representation." Referring, "See Neely v. Anderson, 2 Strob. Eq. 262 
 
 per Turner, L. J., in Nicol's Case, 3 Cadwallader v. West, 48 Misso. 483; 
 
 DeG. & J. 387, 28 L. J. C. 257, 270." Cain v. Warfoid, 33 Md. 23 ; Calloway 
 
 8 Hallows V. Fernie, Law Rep. 3 Ch. v. Witherspoon, 5 Ire. Eq. 128 ; Bird- 
 Ap. 467, 477 ; Downes v. Ship, Law song v. Birdsong, 2 Head, 289 ; David- 
 Rep. 3 H. L. 257, 270. son v. Carter, 55 Iowa, 117, 119; Grif- 
 
 * Jones V. Rimmer, 14 Ch. D. 588, fith v. Short, 14 Neb. 259 ; Shaw v. Ball, 
 
 592 ; Hitchins v. Pettingill, 58 N. H. 3 ; 55 Iowa, 55 ; Storrs v. Scougale, 48 
 
 Redgrave v. Hurd, 20 Ch. D. 1, 13 ; Mich. 387 ; Spargur v. Hall, 62 Iowa, 
 
 Central Railway v. Kisch, Law Rep. 2 498. 
 
 255 
 
§ 660 IN GENERAL WITH ILLUSTEATIONS. [BOOK I. 
 
 has arisen in the criminal law of false pretences. It was once 
 thought by some that, if the falsehood was uttered to a weak 
 and credulous person who was misled to act upon it, no 
 indictment would lie unless it was of a character adapted to 
 mislead one of ordinary capacity and prudence ; but the law 
 is now settled otherwise, and the single question is whether 
 or not it did in fact mislead, though there may be pretences 
 too frivolous for the law to notice.^ So — 
 
 § 657. Ignorant. — The like reasoning applies where the 
 person is ignorant, either generally, or of the particular 
 subject.^ Also — 
 
 § 658. Confidential Relations. — It is the same where the 
 parties are in confidential relations ; less of fraud will be 
 required than in other circumstances.^ 
 
 § 659. False — (Nature of Falsity). — What is said must be 
 false. And its falsity as viewed by the law will depend, not on 
 the mere literal words, but on the effect which, in their just in- 
 terpretation, and operating in connection with the conduct of 
 the defrauding party and with the other circumstances, they 
 were adapted to produce on the mind addressed. The literal 
 truth may be a falsehood, because not the whole truth ; in 
 which case, and others of the like sort, it will be sufficient on 
 a charge of fraud.* Hence — 
 
 § 660. Concealment. — The concealment of a fact which 
 one ought, as a legal duty, to disclose, is in law a fraudulent 
 representation.^ The " duty of mutual disclosure " occupies 
 
 ' 2 Bishop Crim. Law, § 433-436. * Oakes v. Tnrquand, Law Eep. 2 
 
 2 Keller v. Equitable Fire Ins. Co. 28 H. L. 325, 342, 343 ; Mulligan v. Bailey, 
 Ind. 170; Nevitt w. Bank of Port Gib- 28 Ga. 507; Denny v. Gilman, 26 
 son, I Freeman, Missis. 438 ; Decker v. Maine, 149 ; Buford v. Caldwell, 3 
 Hardin, 2 Southard, 579 ; Smith v. Misso. 477. 
 
 Click, 4 Humph. 186; Turner i'. John- ' Smith v. ^tna Life Ins. Co. 49 
 
 son, 2 Cranch C. C. 287 ; Gould v. Oke- N. Y. 2U ; Mitchell v. McDougall, 62 
 
 den, 4 Bro. P. C. 198. 111. 498; Wintz v. Morrison, 17 Texas, 
 
 3 Yosti V. Laughran, 49 Misso. 594 ; 372 ; Belden v. Henriques, 8 Cal. 87 ; 
 HarknessB. Fraser,12Fla.336; Shaeffer Grove v. Hodges, 5 Smith, Pa. 504; 
 V. Sleade, 7 Blackf. 178; Mullins u. Mc- Van Arsdale v. Howard, 5 Ala. 596; 
 Candless, 4 Jones Eq. 425 ; Birdsong v. Barnett v. Stanton, 2 Ala. 181 ; True- 
 Birdsong, 2 Head, 289 ; Whelan v. body v. Jacobson, 2 Cal. 269 ; Aortson 
 Whelan, 3 Cow. 537; Conant ». Jack- v. Eidgway, 18 111. 23; Junkins ». 
 son, 16 Vt. 335; Kennedy v. Kennedy, Simpson, 14 Maine, 364; McAdams v. 
 2 Ala. 571. Gates, 24 Misso. 223 ; Trigg v. Bead, 5 
 
 256 
 
CHAP, XXni.] PBAUD. § 662 
 
 a considerable number of pages in Kent's Commentaries,^ 
 condensed as that work is ; and altogether it constitutes a 
 voluminous title in the law. Moral and legal " duty " are, in 
 this matter, in some particulars quite divergent ; the law, to 
 sharpen wits,^ and for some other reasons, permitting men to 
 be in some circumstances far too astute in their bargainings 
 to satisfy a just morality. We shall see more of the law's 
 lines, on this subject, in various connections. 
 
 §661. Knowledge of Falsity — (intent — Carelessness^. — 
 The vitiating effect of the fraud often or commonly proceeds 
 from a combination of things, not from one thing alone. And 
 as the remedy is civil, not criminal, the misrepresentation need 
 not be such a false pretence as would justify an indictment. 
 Always, therefore, the consideration is important, and it is 
 often the controlling one, that the party knew his affirmations 
 to be false, if such was the fact ; ^ but, on the other hand, if 
 he did not care, or if he acted recklessly,* or even if he was 
 innocently misinformed, there are many circumstances in 
 which they will be adequate.^ It is difficult, probably im- 
 possible, to lay down such rules as will, in all circumstances, 
 be safe guides, distinguishing these classes of cases. For 
 example, — 
 
 § 662. Mistake — (Legal Fraud — Moral). — It is sometimes 
 said to be the present doctrine, overruling former opinions, 
 that there is no such thing as legal, in the absence of moral, 
 
 Humph. 529 ; Dickenson v. Davis, 2 805, 820, 8 Jur. 345 ; Joliffe v. Balcer, 
 
 Leigh, 401; Parker v. Marquis, 64 11 Q.'B. D. 255. 
 
 Misso. 38 ; Meade v. Webb, 1 Bro. P. C. * Parmlee v. Adolph, 28 Ohio State, 
 
 308 ; Bowles v. Stewart, 1 Sch. & Lef. 10. And see Bainbrigge v. Moss, 3 Jur. 
 
 209 ; Ryan v. Asbton, 42 Iowa, 365 ; N. 8. 58, 62, note. 
 
 Tyrrell v. Hope, 2 Atk. 558. 5 Stone v. Covell, 29 Mich. 359 ; 
 
 1 2 Kent Com. 482-491. Prenzel v. Miller, 37 Ind. 1 ; Elder v. 
 
 2 1 Bishop Crim. Law, § 11. Allison, 45 Ga. 13; Smith v. Richards, 
 ' Hnbbell v. Meigs, 50 N. Y. 480; 13 Pet. 26; Smith w. Babcock, 2 Woodb. 
 
 Wakeman v. Dalley, 51 N. Y. 27 ; & M. 246 ; Foster v. Kennedy, 38 Ala. 
 
 Hall V. Bradbury, 40 Conn. 32 ; Miller 359 ; Terhune v. Dever, 36 Ga. 648 ; 
 
 ». Mutual Benefit Ins. Co. 31 Iowa, 216; Harding v. Randall, 15 Maine, 332; 
 
 Hopper V. Sisk, 1 Ind. 176 ; Campbell v. Bennett v. Judson, 21 N. Y. 238 ; Hub- 
 
 Hillman, 15 B. Monr. 508; Ball v. bard v. Briggs, 31 N. Y. 518, 540; 
 
 Lively, 4 Dana, 369 ; McDonald u. Traf- Bacon v. Bronson, 7 Johns. Ch. 194; 
 
 ton, 15 Maine, 225; Stone v. Denny, 4 Donelson i>. Young, Meigs, 155 ; Graves 
 
 Met. 151; Collins v. Evans, 5 Q. B. ». Lebanon National Bank, 10 Bush, 23. 
 
 17 257 
 
§ 664 IN GENERAL WITH ILLUSTRATIONS, [BOOK I. 
 
 fraud ; so that, though a party states a material fact untruly, 
 if he innocently believed it to be true, he is not responsible,^ 
 — a proposition not always laid down in terms quite so broad.^ 
 And, in reason, this must be so in the civil action for deceit ; ^ 
 because, where one party uses his best endeavor to give the 
 other information sought, it would violate justice should he 
 be compelled to pay damages for a mistake he could not avoid.* 
 But, under the head of "Mistake," in another chapter, we 
 shall see that contracts are often set aside or reformed against 
 a party free from all imputation of intentional deceiving. 
 And, in various aspects, a contract is bad where a party is 
 induced to enter into it by the innocent misstatements of 
 facts by the other.^ So that — 
 
 §663. Representation, — or misrepresentation, viewed as 
 distinct from intentional fraud, is sometimes put forward as 
 a separate head in the treatment of the law of contracts. ^ " A 
 representation is ;" said a learned judge, " a statement or 
 assertion, made by one party to the other, before or at the 
 time of the contract, of some matter or circumstance relating 
 to it." '' The representation may be a part of the terms of the 
 contract ^ or it may remain separate ; it may constitute a war- 
 ranty or it may not, as the facts of the particular case disclose ; 
 and there are some other distinctions. But it is believed that, 
 in the present work, all will sufficiently appear under other 
 heads. 
 
 § 664. Lying in Trade. — The law, departing from the rule 
 in morals,^ tolerates a good deal of lying in trade, when in the 
 nature of merely puffing one's own goods or depreciating those 
 
 1 Joliffe V. Baker, 11 Q. B. D. 255, 5 Mulvey v. King, 39 Ohio State, 
 
 where the English cases are widely cited 491 ; Day v. Lown, 51 Iowa, 364 ; Hart 
 
 and reviewed. v. Swaine, 7 Ch. D. 42. See Hunt v. 
 
 s 2 Chit. Con. 11th Am. ed. 1044; Blanton, 89 Ind. 38. 
 
 Leake Con. 370. « 4 Fisher Dig. 8558 ; Pollock Con. 
 
 ' Which was the case of Joliffe v. 461. 
 
 Baker, supra. And see post, § 685. ' Williams, J. in Behn v. Burness, 3 
 
 * Taylor v. Leith, 26 Ohio State, 428 ; Best & S. 751, 753. 
 
 Freeman v. Baker, 5 B. & Ad. 797, 805, » lb. ; In re Banister, 12 Ch. D. 131, 
 
 807. See Brownlee v. Hewitt, 1 Hisso. 148. 
 
 Ap. 360. But see Bird v. Kleiner, 41 9 Ante, § 660. 
 Wis. 134 ; compare with JoliSe v. Baker, 
 supra. 
 
 258 
 
CHAP. XXIII.] FRAUD. § 665 
 
 of another ; ^ provided the thing bargained about reveals ita 
 own qualities, and is open to the parties' equal inspection.^ 
 But if there is in a chattel,^ or in the title to real estate,* some 
 defect not open to inspection, the seller should disclose it to 
 one who proposes to buy ; and, if to gain an advantage he 
 forbears to do this, the sale is voidable for the fraud. And 
 the same effect is produced by a fraudulent representation 
 concerning some specific fact, which could be ascertained by 
 examination or inquiry ; if it is positively uttered, and the 
 purchaser relies on it, and consequently forbears to examine 
 or inquire, the transaction becomes voidable for the fraud.^ 
 The distinction, in such a case, is between positive lying and 
 mere silence ; for, if a fact, or the quality of a thing offered 
 for sale, is equally within the power of the parties to ascer- 
 tain, the law does not require the seller to disclose what he 
 knows, though he is informed, and is aware that the other 
 party is not. But often a single positive word will carry the 
 case across the line, and establish fraud.® One party is not 
 even required to answer what the other asks ; but, if he does, 
 he must speak truly .^ Again, — 
 
 § 665. Opinion — Promise — Law. — In the criminal law of 
 false pretences, a mere opinion or a promise, unaccompanied 
 by any assertion of fact, is not indictable.^ And the like rule 
 
 1 Met. Con. 34; ante, §244; Bar- Hazard v. Irwin, 18 Pick. 95; Pringle 
 low V. Wiley, 3 A. K. Mar. 457. v. Samuel, 1 Litt. 43 ; Holland v. An- 
 
 2 Hill V. Bash, 19 Ark. 522; Bell v. derson, 38 Misso. 55; Newell v. Horn, 
 Henderson, 6 How. Missis. 311 ; Arm- 45 N. H. 421 ; RoseTelt ». Dale, 2 Cow. 
 strong V. Hnffstutler, 19 Ala. 51 ; Hors- 129 ; Litchfield v. Hutchinson, 117 Mass. 
 fall V. Thomas, 1 H. & C. 90, 8 Jur. n. s. 195 ; Mead v. Bunn, 32 N. Y. 275. 
 
 721 ; Poland v. Brownell, 131 Mass. 138. « Laidlaw v. Organ, 2 Wheat. 178 ; 
 
 ' Turner v. Huggins, 14 Ark. 21; Dillard w. Moore, 2 Eng. 166; Smith w. 
 
 Hanks v. McKee, 2 Litt. 227 ; Patterson Hughes, Law Rep. 6 Q. B. 597 ; Harris 
 
 V. Kirkland, 34 Missis. 423; Bigler v. v. Tyson, 12 Harris, Pa. 347 ; Hobbs v. 
 
 Flickinger, 5 Smith, Pa. 279 ; Dowling Parker, 31 Maine, 143 ; Bell v. Byerson, 
 
 V. Lawrence, 58 Wis. 282. 1 1 Iowa, 233. 
 
 * Bryant v. Boothe, 30 Ala. 311; ' Blydenburgh v. Welsh, Bald. 331 ; 
 
 Glasscock v. Minor, 11 Misso. 655; Eichelberger u. Bamitz, 1 Yeates, 307; 
 
 Hays ». Bonner, 14 Texas, 629. See Kintzing v. McElrath, 5 Barr, 467; 
 
 Ward V. Wiman, 17 Wend. 193; More- Butler's Appeal, 2 Casey, Pa. 63; In re 
 
 land V. Atchison, 19 Texas, 303. Ford, 10 Ch. D. 365. 
 
 5 Central Railway v. Kisch, Law ' 2 Bishop Crira. Law, §413, 424, 
 
 Rep. 2 H. L. 99 ; Lord Ellenborough in 427, 429, 429 a, 450, 454. 
 Vernon v. Keys, 12 East, 632, 637; 
 
 259 
 
§ 667 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 applies, perhaps not quite so strictly, to civil frauds. Nor, as 
 all persons are conclusively presumed to know the law,^ will 
 a misstatement of it impair the contract, unless the parties are 
 in confidential relations.^ An opinion as to the prospective 
 results of a venture, for example, is within this rule.^ But a 
 fraudulent representation that a railroad will be located at a 
 particular place, whereby the party is induced to subscribe 
 for its stock, has been held to release the subscriber.* And 
 a declaration that a note is as good as gold affirms the fact of 
 the maker's solvency.^ Further, — 
 
 § 666. Value — (Cost). — In general, a false affirmation of 
 the value of an article is not counted as a fraud, being deemed 
 a mere opinion.® But it is otherwise of an assertion, on the 
 sale of a judgment, that the debtor is solvent.' And the 
 seller's averment of what he gave for a thing is probably of 
 the latter sort, though the cases are not quite harmonious or 
 distinct.* Again, — 
 
 § 667. As to Pay. — If a man buys goods intending not to 
 pay for them, his contract of purchase is fraudulent though 
 he also promises.® And it is the same if he falsely pretends 
 to ability. But if he merely promises, while he knows he 
 cannot pay, there is in law no fraud.^" StiU, — 
 
 1 Ante, § 462. See Hirschfeld v. 6 -Watson v. Picket, 2 Mill, 222. 
 London, &c. Eailway, 2 Q. B. D. 1. « Shade v. Creviston, 9.3 Ind. 591 ; 
 
 2 People V. San Prancisco, 27 Cal. Harvey v. Young, Yelv. 21 a. 
 
 655 ; Townsend v. Cowles, 31 Ala. 428 ; T Bnrr v. Willson, 22 Minn. 206. 
 
 Rnssell u. Branham, 8 Blackf. 277; ' Lindsay Petroleum Co. v. Hnrd, 
 
 Catling V. Newell, 9 Ind. 572; Sims v. Law Rep. 5 P. C. 221 ; Kent v. Free- 
 
 Perrill, 45 Ga. 585 ; Vernon v. Keys, 1 2 hold Land, &c. Co. Law Rep. 4 Eq. 
 
 East, 632 ; Penwick v. Grimes, 5 Cranch 588 ; Kishop v. Small, 63 Maine, 12, 
 
 C. C. 439 ; Payne v. Smith, 20 Ga. 654 ; and cases there cited. 
 
 Hall V. Thompson, 1 Sm. & M. 443; » Dow v. Sanborn, 3 Allen, 181; 
 
 Bridges v. Robinson, 2 Tenn. Ch. 720 ; Wiggin v. Day, 9 Gray, 97 ; Hall v. 
 
 Thomson v. Weems, 9 Ap. Gas. 671 ; Naylor, 6 Dner, 71 ; King v. Phillips, 8 
 
 Pouty V. Fouty, 34 Ind. 433 ; Harts- Bosw. 603 ; Hoffman v. Strohecker, 7 
 
 ville University v. Hamilton, 34 Ind. Watts, 86; Mackinley v. McGregor, 3 
 
 506 ; Hardigree v. Mitchum, 51 Ala. Whart. 369 ; O'Donald i;. Constant, 82 
 
 151 . Ind. 212 ; Honghtaling v. Hills, 59 Iowa, 
 
 ' Lake v. Security Loan Assoc. 72 287; Donaldson v. Parwell, 93 U. S. 
 
 Ala. 207. 631. 
 
 * Kent County Railroad v. Wilson, w Bell v. Ellis, 33 Cal. 620 ; Buffing- 
 
 5 Houst. 49. See New Brunswick, &c. ton v. Gerrisb, 15 Mass. 156; Klopen- 
 
 Railway v. Conybeare, 9 H. L. Cas. 711. stein v. Mulcahy, 4 Nev. 296; Nichols 
 
 260 
 
CHAP. XXIII.] FEATJD. § 671 
 
 § 668. Deceitful Promise. — There is a deceitful promise, 
 not meant to be performed, which is deemed a fraud.^ 
 
 § 669. ConcurrentWarranty. — That a party, while effect- 
 ing a sale by fraud, also warrants the thing, does not take 
 away the fraudulent character or consequences of the trans- 
 action.2 Nor, on the other hand, will the fraud impair the 
 right of action on the warranty .^ 
 
 § 670. The Quantum of Fraud, — necessary to vitiate a con- 
 tract, cannot be the subject of a rule. It will depend much 
 on the circumstances, but chiefly on the effect. Did the false 
 utterance, and not something else, so far induce the consent 
 that otherwise * it would not have been given ? ^ Still the 
 misrepresentation must be, not only relevant and material,* 
 but likewise not insignificant ; thus, where a horse was sold 
 with a warranty, accompanied by a falsehood as to the place 
 whence it came, the court would not set aside the sale for 
 this unimportant deception while it satisfied the warranty.^ 
 
 V. The Nature and Effect of the Fraudulent Contract. 
 
 § 671. Not Void — Voidable. — Whatever be the effect of 
 a party's signing, entrapped by the other, a writing different 
 from what he thinks he is executing,^ if he means to agree to 
 the terms which in form he does, however moved thereto by 
 fraud, the contract is not a nullity. The defrauding party is 
 bound,^ and the defrauded may affirm it or recede therefrom 
 
 V. Pinner, 18 N. Y. 295; Hennequin * Duncan ». Hogne, 24 Missis. 671; 
 
 V. Naylor, 24 N. Y. 139; Backentoss Story w. Norwich, &c. Railroad, 24 Conn. 
 
 V. Speicher, 7 Casey, Pa. 324 ; Griffin v. 94 ; Slidell v. Eightor, 3 La. An. 199 ; 
 
 Chubb, 7 Texas, 603; Powell w. Brad- Peter v. Wright, 6 Ind. 183; Central 
 
 lee, 9 Gill & J. 220. See Talcott v. Bank v. Copeland, 18 Md. 305 ; Smith 
 
 Henderson, 31 Ohio State, 162. v. Richards, 13 Pet. 26 ; Rhea v. Yoder, 
 
 1 Miller v. Howell, 1 Scam. 499 ; Pr. Dec. 2d ed. 88 ; Shackelford v. Hend- 
 Dowd V. Tucker, 41 Conn. 197 ; Kinard ley, 1 A. K. Mar. 496. 
 
 17. Hiers, 3 Rich. Eq. 423 ; Richardson v. « Ante, § 652. 
 
 Adams, 10 Yerg. 273 ; Farrar v. Bridges, ' Geddes v. Pennington, 5 Dow, 159, 
 
 3 Humph. 566. a Scotch appeal. And see Feret v. 
 
 2 Steward v. Coesvelt, 1 Car. & P. Hill, 15 C. B. 207, 18 Jur. 1014. 
 23 ; Larey v. Taliaferro. 57 Ga. 443. « Ante, § 645-649. 
 
 « McGowen v. Myers, 60 Iowa, 256. » Watts v. Brooks, 3 Ves. 612. 
 
 * Ante, § 654. 
 
 261 
 
§673 
 
 IN GENERAL WITH ILLUSTRATIONS. 
 
 [book I. 
 
 as he chooses.! Hence it is not called void, the name for it 
 is voidable.'^ Thus, — 
 
 § 672. Fraudulent Sale — (Passing Title). — On a sale of 
 goods 2 or lands'* brought about by the fraud of the pur- 
 chaser, a defeasible title in them passes to the latter.^ As to 
 the defrauding party, the transaction is, as just said, unim- 
 peachable ; the one defrauded, on learning the truth, may 
 declare it void or not at his election.® Then, — 
 
 § 673. Innocent Purchaser. — Should a third person, not 
 knowing of the fraud, and not being put on his inquiry,^ 
 buy, for an adequate, valuable consideration, the same goods 
 or lands from the one who had thus obtained them through 
 fraud, this defeasible title will thereby be made indefeasible, 
 and he will hold them. For, as between the original seller 
 
 1 Nealon i'. Henry, 131 Mass. 153, 
 154; Myton v. Thurlow, 23 Kan. 212; 
 White V. Garden, 10 C. B. S19, 15 Jar. 
 630. 
 
 2 Oakes v. Turquand, Law Rep. 2 
 H. L. 325, 346, 375, 376; PearsoU v. 
 Chapin, 8 Wright, Pa. 9; Benedict v. 
 National Bank, 4 Daly, 171 ; Urquhart 
 V. Macpherson, 3 Ap. Cas. 831. 
 
 * Clough V. London, &c. Railway, 
 Law Rep. 7 Ex. 26, 34. 
 
 * Somers v. Pumphrey, 24 Ind. 231. 
 6 HofiFman v. Noble, 6 Met. 68, 72 ; 
 
 Rowley v. Bigelow, 12 Pick. 307, 312; 
 Hamet v. Letcher, 37 Ohio State, 356, 
 358 ; Stevenson v. Newnham, 13 C. B. 
 285, 17 Jur. 600 ; White v. Garden, 10 
 C. B. 919, 15 Jur. 630; Moyce v. Kew- 
 ington, 4 Q. B. D. 32, 35. At the place 
 last cited, Cockburn, C. J., said : " The 
 reasoning on which this conclusion is 
 based may not appear altogether con- 
 sistent with principle ; and, agreeing in 
 the result, we should prefer to adopt the 
 view of the American courts [conduct- 
 ing to the conclusion to be mentioned in 
 the next section], as stated in the case 
 of Root V. French, 13 Wend. 570, a 
 case decided in the Supreme Coni-t of 
 judicature of the State bf New York, 
 according to which the preference thus 
 given to the right of the innocent pur- 
 
 262 
 
 chaser is treated as an exception to the 
 general law, and is rested on the prin- 
 ciple of equity that, where one of two 
 innocent parties must suffer from the 
 fraud of a third, the loss should fall on 
 him who enabled such third party to 
 commit the fraud." It is scarcely to bo 
 expected that an English court should 
 do otherwise than deem whatever it 
 finds set down in any one State of our 
 Union to be " American " doctrine. Not 
 all the other American courts have fol- 
 lowed this New York reasoning, and 
 whether or not any have, it will render 
 the reader no service to inquire. De- 
 feasible rights are among the most fa- 
 miliar things in the law; therefore it is 
 difficult to discern in what consists the 
 departure from principle, if there is any, 
 in the reasoning of the text. When 
 next we come to inquire whether the 
 claims of an innocent third person or of 
 the defrauded party shall be preferred, 
 as working or not a defeasance, the 
 New York reasoning, we are about to 
 see, is pertinent. Nor, as thus ex- 
 plained, does any conflict between the 
 two methods of reasoning remain. 
 
 s Hoffman t--. Noble, and other cases, 
 supra ; Lewis v. Cosgravc, 2 Taunt. 2. 
 
 7 Cooper V. Newman, 45 N. H. 339. 
 
CHAP. XXIII.] 
 
 FRAUD. 
 
 §674 
 
 and the second purchaser, both of whom are innocent,^ the 
 law will cast the loss ou him whose laches enabled the de- 
 frauder to transmit them to one not negligent.^ Yet if the 
 third person, when making his purchase, has knowledge of 
 the fraud,^ or if he receives the thing in payment of a pre- 
 existing debt,* or otherwise without consideration,'' he is in 
 no better position than the one with whom he dealt. Nor is 
 the defrauder's assignee in bankruptcy in a better position 
 than he,® nor is a person who attaches the property as his.'^ 
 Again, — 
 
 § 674. Negotiable Paper. — On the same principle, a bona 
 fide holder for value of negotiable paper, originally obtained 
 by the fraud now in contemplation, may enforce payment 
 against the maker ; ^ but one within any of the foregoing ex- 
 ceptions stands only in the position of the original defrauder.^ 
 And — 
 
 1 Cundy v. Lindsay, 3 Ap. Cas. 459, 
 463. 
 
 2 Jennings v. Gage, 13 111. 610; 
 Eowley v. Bigelow, 12 Pick. 307, 312 ; 
 Hoffman v. Noble, 6 Met. 68 ; Sinclair 
 V. Healy, 4 Wright, Pa. 417 ; Sharp v. 
 Jones, 18 Ind. 314 ; Hutchinson v. Wat- 
 kins, 17 Iowa, 475 ; Collins v. Heath, 
 34 6a. 443; Chotean v. Jones, 11 111. 
 300; Scarlett v. Gorham, 28 111. 319; 
 Bartlett t). Henry, 10 Johns. 185; Cole- 
 man V. Satterfield, 2 Head, 259 ; Ste- 
 venson V. Newnham, 13 C. B. 285, 17 
 Jur. 600; White v. Garden, 10 C. B. 
 919, 15 Jur. 630 ; Kern v. Thurber, 57 
 Ga. 172 ; Moore v. Trimble, 94 Ind. 153 ; 
 Moyce v. Newington, 4 Q. B. D. 32, 14 
 Cox C. C. 182; Claflin v. Cottman, 77 
 Ind. 58 ; Neal v. Gregory, 19 Fla. 356 ; 
 Dickerson o. Evans, 84 111. 451 ; Fulton 
 V. Woodman, 54 Missis. 158; Farmers 
 Nat. Bank v. Fletcher, 44 Iowa, 252; 
 Wynne v. Cornelison, 52 Ind. 312; 
 Hurley v. Osier, 44 Iowa, 642 ; Bryan's 
 Appeal, 5 Out. Pa. 389. 
 
 8 Crocker v. Crocker, 31 N. Y. 507 ; 
 Shewmake u. Williams, 54 Ga. 206. 
 And see Justh v. National Bank of Com- 
 monwealth, 56 N. Y. 478. 
 
 * Root V. French, 13 Weiid. 570; 
 Wood V. Robinson, 22 N. Y. 564. But 
 see Shufeldt v. Pease, 16 Wis. 659; But- 
 ters V. Haughwout, 42 111. 18. 
 
 6 Wade V. Saunders, 70 N. C. 270 ; 
 Lillard v. Shannon, 60 Misso. 522. 
 
 6 Donaldson v. Farwell, 93 U. S. 
 631 ; Patton v. Campbell, 70 111. 72. 
 
 ' Wiggin V. Day, 9 Gray, 97 ; Hoff- 
 man V. Strohecker, 7 Watts, 86. Con- 
 tra, Dickson v. Culp, 9 Baxter, 57. 
 See Stearns v. Herrick, 132 Mass. 
 114. 
 
 8 Davis V. West Saratoga Building 
 Union, 32 Md. 285 ; Hamilton v. 
 Vought, 5 "Vroom, 187; Park Bank v. 
 Watson, 42 N. Y. 490 ; Riley v. Scha- 
 waeker, 50 Ind. 592 ; Clark v. Thayer, 
 105 Mass. 216 ; Strough v. Gear, 48 Ind. 
 100 ; In re Great Western Telegraph, 5 
 Bis. 363 ; Culver v. Hide and Leather 
 Bank, 78 111. 625. 
 
 ' See, for various questions within 
 this doctrine, Southwick v. Memphis 
 Bank, 84 N. Y. 420 ; Gridley v. Bane, 57 
 III. 529 ; Ormsbee v. Howe, 54 Vt. 
 182. 
 
 263 
 
§ 678 IN GBNEBAL WITH ILLUSTRATIONS. [BOOK I. 
 
 § 675. other Contracts — likewise are governed by this 
 principle. It will suffice to refer to a few cases.^ 
 
 § 676. Ezpleination and Distinctions — (Forgery — Stolen 
 Goods). — The reader should not overlook the distinctions on 
 which we are proceeding. It is a familiar proposition that 
 one who acquires a forged note, however honestly and for a 
 consideration, is invested with nothing against the supposed 
 maker; 2 and the purchaser of stolen goods, however blame- 
 less, cannot hold them against the owner.* There may be 
 various reasons for this ; but a sufficient one is, that the in- 
 jured person in these cases gave uo consent to what was done, 
 nor did even his carelessness contribute thereto. Yet where, 
 in the cases above stated, the innocent and meritorious third 
 party is protected, the defrauded person had, influenced as 
 well by his own carelessness as by the other's fraud, con- 
 sented to the transmission of the title or other right.* Keep- 
 ing in mind this distinction, we shall see that, for example, a 
 purchaser from the grantee of a forged deed acquires nothing,^ 
 and it is the same with the transferee of stock pursuant to a 
 forged power of attorney," — a result directly the opposite of 
 that in ordinary fraud. Hence, — 
 
 § 677. Innocent Purchaser, again. — In the various circum- 
 stances liable to arise wherein, for example, a defrauded seller 
 undertakes to transmit the title to some non-concurring third 
 person, instead of to the defrauder, making the sale void, the 
 innocent purchaser from the latter is not protected.'^ 
 
 § 678. As between the Parties : — 
 
 Elect. — The defrauding party being bound by the contract 
 
 1 Sleeper v. Chapman, 121 Mass. ' Mowrey v. Walsh, 8 Cow. 238; 
 404; Urquhart v. Macpherson, 3 Ap. Robinson v. Skipworth, 23 Ind. 311; 
 Cas. 831 ; Nealon v. Henry, 131 Mass. Dodd v. Arnold, 28 Texas, 97. 
 
 153; Servis v. Cooper, 4 Vroom, 68; * Ante, § 671-673; VThite v. Gar- 
 
 Scholefield v. Templer, Johns. Ch. Eng. den, 10 C. B. 919, 15 Jur. 630. 
 
 155, 5 Jur. N. s. 619, 4 De G. & J. 429; 6 Gray w. Jones, 14 Fed. Hep. 83. 
 
 Cameron v. Eomele, 53 Texas, 238 ; » Davis v. Bank of England, 2 Bing. 
 
 Alexander v. The State, 56 Ga. 478 ; 393, 9 Moore, 747. 
 
 Dey V. Dey, 11 C. E. Green, 182. ^ Hamet v. Letcher, 37 Ohio State, 
 
 2 Brooks u. Warwick, 2 Stark. 389 ; 356. And consult Clarke «. Shee, Cowp. 
 Memphis, &c. Railroad v. Chastine, 54 197 ; Abbotts v. Barry, 2 Brod. & B. 
 Missis. 503 ; Maas i>. Missouri, &c. Rail- 369, 371, 372. 
 
 way, 83 N. Y. 223. And see post, § 699. 
 
 264 
 
CHAP. XXIII.] FEAUD. § 679 
 
 if the other chooses to hold him,^ the latter may make his 
 election 2 out of a considerable number of steps, some of 
 which are inconsistent with others, so that the election of one 
 may exclude another. An obvious one of these steps is — 
 
 §679. Rescission. — This term denotes the avoiding of a 
 voidable contract. The party who finds himself defrauded 
 may, unless some obstacle intervenes, rescind it if he chooses.^ 
 But as the rights of innocent third persons, acquired for value, 
 cannot be affected therfeby,* if they have attached he is too 
 late to rescind.^ Nor can he rescind when, from any other 
 cause, the parties cannot thereon be placed in statu quofi 
 The rule as to which placing in statu quo is, that the one 
 proceeding to rescind must either give back or offer to return 
 whatever of any value to himself or the other he has received 
 under the contract, yet he need not include in this what is 
 without possible benefit.^ To illustrate, — where worthless 
 lime in casks was sold for good, it was held that the lime need 
 not be returned on a rescission, but the casks must be.^ There 
 are cases so exceptional in their nature that no offer to return 
 the thing need, it appears, precede the bringing of the suit ; 
 but such is not the general rule.^ Obviously there cannot be 
 a part affirmance and part rescission ;^<* as, for example, by 
 retaining the price and avoiding the conveyance.^^ A rescis- 
 
 1 Ante, § 671. f Lane v. Latimer, 41 Ga. 171 ; San- 
 
 2 Ante, § 672; Parker v. Marquis, 64 bom v. Batchelder, 51 N. H. 426; Per- 
 Misso. 38 ; Byard v. Holmes, 4 Vroom, ley v. Balch, 23 Pick. 283 ; Thurston v. 
 119; Dietzu. Sutcliffe, 80 Ky. 650. Blanchard, 22 Pick. 18, 20; Beetem v. 
 
 » Dauchy v. Silliman, 2 Lans. 361 ; Bnrkholder, 19 Smith, Pa. 249; Under- 
 
 Gates V. Bliss, 43 Vt. 299 ; Hall v. Ful- wood v. West, 52 III. 397 ; Manahan v. 
 
 lerton, 69 111. 448 ; Holbrook v. Burt, 22 Noyes, 52 N. H. 232 ; Gould v. Cayuga 
 
 Pick. 546 ; Foster v. Gressett, 29 Ala. Bank, 21 Hun, 293 ; Demorest v. East- 
 
 393 ; Cook V. Moore, 39 Texas, 255 ; man, 59 N. H. 65 ; Herman v. Haffen- 
 
 Yeoman v. Lasley, 40 Ohio State, 190; egger, 54 Cal. 161. 
 
 Jones i). Emery, 40 N. H. 348 ; Davis w. 8 Conner v. Henderson} 15 Mass. 
 
 Henry, 4 W. Va. 571 ; Leeds v. Boyer, 319. 
 
 59 Ind. 289 ; Dietz v. Sutcliffe, 80 Ky. « Clough v. London, &c. Railway, 
 
 650. Law Rep. 7 Ex. 26 ; Smith v. Salomon, 
 
 1 Ante, § 673-675. 7 Daly, 216; Smith v. Holyoke, 112 
 
 6 Oakes v. Turqnand, Law Rep. 2 Mass. 517. 
 
 H. L. 325. "Kellogg v. Turpie, 93 111. 265; 
 
 » Potter w. Titcomb, 22 Maine, 300; Bishop w. Stewart, 13 Nev. 25. 
 
 Hendrickson v. Hendrickson, 51 Iowa, " Burgett v. Teal, 91 Ind. 260. 
 68 ; Montgomery v. Gibbs, 40 Iowa, 652. 
 
 266 
 
§ 681 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 sion in pais, procured by fraud, may itself be rescinded.^ 
 Moreover, — 
 
 § 680. Time of Rescission. — According to most of the eases, 
 the rescission must be prompt, or within a reasonable time 
 after the discovery of the fraud.^ Plainly, where there has 
 been an act of acquiescence with full knowledge of the facts, 
 it comes too late.' And, unless barred by the Statute of 
 Limitations, it is never too late while the fraud remains un- 
 discovered.* The party, likewise, is given time to inquire 
 into and ascertain his legal rights.® The circumstances of 
 cases vary, and it is impossible to set down in numbers the 
 months or years within which a suit must be brought. In one 
 case, four years were adjudged too long ; ^ in another, the lapse 
 of six years was deemed a consideration to be submitted to 
 the jury ; '' in another, six months were held not to be a bar ; ^ 
 in another, five months unexplained were deemed too long a 
 time to wait.^ And it has been adjudged in England that 
 mere delay does not take away the right, being material only 
 as it furnishes evidence of an election to affirm.^"^ 
 
 § 681. Notice of Rescission. — It is sometimes said that the 
 rescission must be with notice to the other party .^^ Doubt- 
 less if anything is to be returned, it should be with a state- 
 
 1 Byers v. Chapin, 28 Ohio State, 325 ; McCreary v. Parsons, 31 Kan. 447 ; 
 300; Jones !>. Booth, 38 Ohio State, 405. St. John v. Hendrickson, 81 Ind. 350; 
 
 2 Manahan v. Noyes, 52 N. H. 232 ; Byrne v. Hibernia Banls:, 31 La. An. 81. 
 Hall V. FuUerton, 69 111. 448 ; Oakes v. * Preceding cases ; also Kraus v. 
 Turquand, Law Rep. 2 H. L. 325 ; Thompson, 30 Minn. 64. 
 
 Williams v. Ketchura, 21 Wis. 432 ; * Torrance v. Bolton, Law Eep. 8 
 
 Fratt V. Fiske, 17 Cal. 380; Barfield v. Ch. Ap. 118, 124. 
 
 Price, 40 Cal. 535; Shaw v. Barnhart, « Aaron v. Mendel, 78 Ky. 427. 
 
 17 Ind. 18.3 ; Fisher v. Wilson, 18 Ind. ' Davis v. Stuard, 3 Out. Pa. 295. 
 
 133 ; Cook ti. Gilman, 34 N. H. 556 ; 8 Marston v. Simpson, 54 Cal. 189. 
 
 Desha v. Robinson, 17 Ark. 228 ; Law- » Hunt v. Blanton, 89 Ind. 38. And 
 
 rence v. Dale, 3 Johns. Ch. 23 ; Gates v. see, for other illustrative cases, Hopkins w. 
 
 Bliss, 43 Vt. 299; Bruce v. Davenport, Snedaker, 71 111. 449 ; Nealon v. Henry, 
 
 1 Abb. Ap. Dec. 233; Hunt v Hard- 131 Mass. 153; Knight w. Houghtalling, 
 
 wick, 68 Ga. 100; Memphis, &c. Rail- 85 N. C. 17; Parmlee v. Adolph, 28 
 
 road V. Neighbors, 51 Missis. 412 ; Gould Ohio State, 10. 
 
 V. Cayuga Bank, 86 N. Y. 75 ; Wingate i" Clough v. London, &c. Railway, 
 
 V. Neidlinger, 50 Ind. 520 ; Samuels v. Law Rep. 7 Ex. 26. 
 
 King, 50 Ind. 527 ; Lawrenceburgh Nat. " Beetem v. Burkholder, 19 Smith, 
 
 Bank «. Stevenson, 51 Ind. 594. Pa. 249 ; Parmlee ». Adolph, 28 Ohio 
 
 * Evans v. Montgomery, 50 Iowa, State, 10. 
 
 266 
 
CHAP. XXIII.] FRAUD. § 685 
 
 ment of the reason ; but, in other circumstances, no notice in 
 advance of judicial proceedings is universally or even gen- 
 erally required.! 
 
 § 682. Recover Back. — One who thus rescinds a contract 
 may recover back whatever he has paid or delivered under 
 it, whether money or goods.^ Again, — 
 
 § 683. How Ratify. — Though a defrauded party cannot both 
 rescind a contract and affirm it, he may, as we have seen,^ 
 elect between the two ; and, if he chooses, do the latter. Any 
 act by which, with knowledge of the fraud, he treats the con- 
 tract as subsisting, will be an affirmance precluding rescission.* 
 For example, one makes unreversible a sale of his goods if, 
 after learning that it was brought about by the purchaser's 
 fraud, he brings an attachment suit for the price.^ The de- 
 frauder cannot set up his own fraud ; ^ the contract, therefore, 
 is perfected. As another remedy, — 
 
 § 684. Make Representation Good. — When the circum- 
 stances permit, a court of equity will compel the defrauding 
 party so to act that his representations shall be realized by the 
 other.'^ Thus, if partners, by pretending to a third person 
 that a certain amount of stock, exceeding the truth, has been 
 subscribed and paid in, entrap him into becoming a member 
 of their association, the equity tribunal will see that they 
 personally make good the deficiency .^ Or — 
 
 § 685. Damages at Law. — The defrauded party may, in 
 the action of deceit at law, or other proper form of action, 
 
 1 Clough V. London, &c. Railway, A. K. Mar. 338 ; Moffat v. Winslow, 7 
 Law Rep. 7 Ex. 26, 3.'>, 36 ; Schofield v. Paige, 124. 
 
 Holland, 37 Ind. 220 ; Landauer v. * O'Donald v. Constant, 82 Ind. 212. 
 
 Cochran, 54 Ga. 533 ; Thurston v. Blan- For another illustration, see Blatten- 
 
 chard, 22 Pick. 18. berger !>. Holman, 7 Out. Pa. 555. And 
 
 2 Thurston v. Blanchard, 22 Pick, see Powers v. Benedict, 88 N. Y. 605. 
 18; Stevens u. Austin, 1 Met. 557; « Roberts ji. Lund, 45 Vt. 82; Jones 
 Mann v. Stowell, 3 Chand. 243 ; Wood- v. Hill, 9 Bush, 692 ; Fisher v. Saylor, 
 worth V. Kissara, 15 Johns. 186; Darst 28 Smith, Pa. 84; Watts v. Brooks, 3 
 V. Thomas, 87 111. 222. Ves. 612; Roberts v. Roberts, 2 B. & 
 
 » Ante, § 678, 680. Aid. 367. 
 
 * Cobb V. Hatfield, 46 N. Y. 533 ; ' Hammersley v. Baron de Biel, 12 
 
 Jackson v. Jackson, 47 Ga. 99 ; Evans CI. & F. 45. 
 
 i>. Foreman, 60 Misso. 449 ; Danchy v. ' Moore's Case, Law Rep. 18 Eq. 
 
 Silliman, 2 Lans. 361 ; Gray v. Fowler, 661 ; Rawlins v. Wickham, 3 De G. & J. 
 
 Law Eep. 8 Ex. 249 ; Higgs v. Smith, 3 304. 
 
 267 
 
§ 689 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 recover of the other his damages for the fraud ; ^ and this, ia 
 some circumstances, although he has barred himself of the 
 right to rescind.2 Not every wrong within our present title 
 can, as we have already seen,^ be redressed by this suit. 
 Again, — 
 
 § 686. ReUef in Equity. — Besides the remedy in equity 
 just mentioned,* there are open to the party various other 
 forms of equitable relief, available even though he does not 
 choose to rescind the contract.^ A range through our entire 
 equity jurisprudence, to explain them all, would not be desira- 
 ble here ; but, — 
 
 § 687. Reform. — In some oases, the court of equity will re- 
 form the contract, leaving it to stand as amended.® Under 
 the modern procedure, in a part of our States; this may be 
 done in a court of law.'' Or, — 
 
 § 688. Rescind in Equity. — The court of equity will in 
 proper cases order the formal rescinding of the fraudulent 
 contract." And the plaintiff need not have offered, before the 
 bringing of the suit, to restore what he had received.' 
 
 § 689. Defence at Law. — In a suit at law on the contract, 
 if the parties are in statu quo, or if they can be so placed (and, 
 
 1 Ward V. Wiman, 17 Wend. 193; ' Ante, §372; post, § 712; Hall v. 
 Coon ti. Atwell, 46 N. H. 510 ; Newell Gailford, 74 N. C. 130. 
 
 V. Horn, 45 N. H. 421; Hubbard v. » Boyce u. Grundy, 3 Pet. 210; 
 
 Briggs, 31 N. Y. 518, 529; Ives v. Car- Hough v. Richardson^ 3 Story, 659; 
 
 ter, 24 Conn. 392 ; Cravens v. Grant, 2 Fisher v. Probart, 5 Hay w. 75 ; Johnson 
 
 T. B. Monr. 117; MuUett v. Mason, ». Pryor, 5 Hayw. 243 ; Oswald ». Mc- 
 
 Law Rep. 1 C. P. 559 ; McKee v. Eaton, Gehee, 28 Missis. 340 ; Camp v. Camp, 
 
 26 Kan. 226; Byard v. Holmes, 4 2 Ala. 632; Greenlee «. Gaines, 13 Ala. 
 
 Vroom, 119. 198; Stark v. Henderson, 30 Ala. 438; 
 
 2 Parker o. Marquis, 64 Misso. 38. Hall v. Perkins, 3 Wend. 626 ; Moreland 
 8 Ante, § 662. v. Atchison, 19 Texas, 303 ; Frank- 
 * Ante, § 684. lin v. Greene, 2 Allen, 519 ; Wray v. 
 
 5 Brizick v. Manners, 9 Mod. 284, Wray, 32 Ind. 126 ; Lynch's Appeal, 
 285 ; Holland v. Anderson, 38 Misso. 1 Out. Pa. 349 ; Brandon v. Forest, 9 
 55 ; Pringle v. Samuel, 1 Litt. 43 ; Smith, Pa. 187 ; Matthey v. Wood, 12 
 Moore v. Clay, 7 Ala. 742 ; Miner v. Bush, 293 ; Thorn v. Thorn, 51 Mich. 
 Medbuty, 6 Wis. 295 ; Blacks w. Catlett, 167 ; Gould v. Okeden, 4 Bro. P. C. 
 3 Litt. 139; Stapler v. Hurt, 16 Ala. 198. 
 
 799 ; Long v. Fox, 100 111. 43. ^ Martin v. Martin, 35 Ala. 560. 
 
 6 Ellinger v. Growl, 17 Md. 361 ; And see Knowlton v. Amy, 47 Mich. 
 Scott K. Buncan, 1 Dev. Eq. 407 ; Rider 204; Mosely v. Miller, 13 Bush, 408; 
 V. Powell, 4 Abb. Ap. Dec. 63 ; Hitchins Kitchen v. Bay burn, 19 Wal. 254. 
 
 V. Pettingill, 58 N. H. 386. 
 
 268 
 
CHAP. XXni.] FRAUD. § 692 
 
 it would seem from some of the cases, contrary to principle 
 and to other cases, even if they cannot), a defrauded defend- 
 ant, who has not affirmed it, may in general rely on the fraud 
 as a perfect defence.^ Or, in some circumstances, the fraud 
 will simply reduce the damages.^ And, — 
 
 § 690. Concurrent Jurisdiction — (Law and Equity). — In 
 general, the courts of law and equity have concurrent juris- 
 diction in cases of fraud.^ Yet there are frauds which can be 
 availed of only in equity. The authorities are not quite uni- 
 form as to where the line separating this class from the other 
 runs.* 
 
 § 691. Fraudulent Combinations. — In cases of combinations 
 to defraud, a court will not entertain the suit of either con- 
 spirator against the other.^ 
 
 § 692. The Doctrine of this Chapter restated. 
 
 The expositions of this chapter relate only to voluntary 
 contracts, not extending to those which the law creates,® or 
 to those which come "by estoppel. 'i' When, therefore, parties 
 are at liberty to make whatever agreement they choose, or 
 to abstain from agreeing, there is no contract between them 
 unless the will of each concurs with the other's will in their 
 formal act of bargaining. If both wills give a consent in 
 terms, yet the one is lured to it through the fraudulent repre- 
 
 1 Wyman v. Heald, 17 Maine, 329 ; rison, 76; Gilbert v. Burgott, 10 Johns. 
 Cnllam v. Branch Bank, 4 Ala. 21 ; 457. 
 
 Jeter v. Tucker, 1 S. C. 245 ; Wilson v. * Rogers v. Colt, 1 Zab. 704 ; Stryker 
 
 Cromwell, 1 Cranch C. C. 214 ; Kay v. v. Vanderbilt, 1 Butcher, 482 ; Wood v. 
 
 Virgin, 12 111. 216; Winslow K.Bailey, Goodrich, 9 Yerg. 266 (which cases 
 
 16 Maine, 319; Irving v. Thomas, 18 compare with ante, § 121); Higgs v. 
 
 Maine, 418; Curtis ». Hall, 1 Southard, Smith, 3 A. K. Mar. 338; McKnight v. 
 
 361 ; Block v. Elliott, 1 Misso. 275 ; Kellett, 9 Ga. 532 ; Willett v. Forman, 
 
 Pemberton v. Staples, 6 Misso. 59; 3 J. J. Mar. 292 ; Hazard v. Irwin. 18 
 
 Lewis V. Cosgrave, 2 Taunt. 2. Pick. 95 ; Burrows v. Alter, 7 Misso. 
 
 2 Jackson v. Jackson, 47 Ga. 99 ; 424 ; Met. Con. 27 ; Denton v. McKen- 
 Brown v. North, 21 Misso. 528. zie, 1 Des. 289 ; Furgnson v. Coleman, 
 
 8 Smith V. Mclver, 9 Wheat. 532 ; 5 Heisk. 378. 
 
 1 StoryEq. Jur. §184; Skrine i. Sim- « Tobey v. Bobinson, 99 HI. 222; 
 mons, II Ga. 401 ; Tnrnbull v. Gadsden, Horn o. Star Foundry, 23 W. Va. 522. 
 
 2 Strob. Eq. 14; Anderson v. Hill, 12 ^ Ante, § 181 et seq. 
 Sm. & M. 679 ; Tomlin v. Cox, 4 Har- ' Ante, § 264 et seq. 
 
 269 
 
§ 692 IN GENERAL WITH ILLUSTEATIONS. [bOOK I. 
 
 sentations of the other part}-, the inthralled will, on becoming 
 free, may accept or reject, as it pleases, what was thus imper- 
 fectly done. The defrauder has no election, for his original 
 choice was voluntary. Hence this contract, which is good or 
 not as one of the parties may determine, is called voidable. 
 
 The courts, in applying these principles, follow their usual 
 course by calling to their aid such other principles of the law 
 as concern the particular question. If, for example, two per- 
 sons meet, cognizant of all relevant facts, and one of them 
 tells the other, who believes him, that, having walked three 
 times around the latter 's cornfield blowing a fish-horn, the law 
 gives him in compensation three-fourths of the corn ; where- 
 upon they make in due form a bargain that the former shall 
 have of the latter the whole crop for a price estimated at one- 
 fourth its value, such bargain is good. And this is because, 
 of necessity, the law is administered on the basis that every 
 man knows its provisions ; ^ so that, though the owner of the 
 corn was really defrauded, the court is not permitted thus to 
 adjudge. The other paid him his price, with the conclusive 
 knowledge, so the law affirms, that the blowing of the fish- 
 horn created no obligation ; hence the bargain, as legally 
 viewed, was fair. But, if the cheat had been accomplished 
 by a false representation of some essential fact, — as, for ex- 
 ample, if the law really was as thus said, and the falsehood 
 consisted in the party's statement that he had blown the fish- 
 horn while in truth he had not, — the result would have been 
 the other way ; because, though the law presumes itself to 
 be known to every man, it has no such presumption as to 
 a fact. Therefore the entire law of this chapter is such, and 
 such onlj', as judicial determinations have made palpable, 
 through comparisons of the proposition that people make 
 only the contracts they please, with the other principles of 
 our jurisprudence. 
 
 1 Ante, § 462. 
 
 270 
 
CHAP. XXIV.] MISTAKE. § 695 
 
 CHAPTER XXIV. 
 
 MISTAKE IN THE CONTBACT. 
 
 § 693, 694. Introduction. 
 
 695-706. How at Law. 
 
 707-713. Eeforming and Rescinding in Equity. 
 
 714. Doctrine of Chapter restated. 
 
 § 693. On -what Principle — Relations of Subject. — How 
 this subject is related to some others we saw in the last 
 chapter. The doctrine of mistake, the same as of fraud, is in 
 the main a product of the more elementary one that parties 
 enter into a contract only by the concurrent consent of their 
 wills to the same thing.^ If the subject of the contract does 
 not exist, or if the motive to it is a mere illusion, there is, in 
 the one case, a grasp of the wills at vacuity, and, in the other, 
 the wills move falsely. 
 
 § 694. How Chapter divided. — We shall consider, I. The 
 Doctrine at Law ; II. Reforming and Rescinding in Equity. 
 
 I. The Doctrine at Law. 
 
 § 695. Non-existing Subject. — (Void). — We saw, in an- 
 other connection, that any stipulations which parties make 
 concerning a thing believed to exist while it does not are 
 simply void.2 The illustrations of this proposition are num- 
 berless ;» for example, thus to take a deed of non-existing 
 land, and give a receipt therefor as in payment of a debt, does 
 not in law discharge the debt.* So, — 
 
 1 Ante, § 638-640. Ind. 587 ; Marvin v. Bennett, 8 Paige, 
 
 •^ Ante, § 587. 312. 
 
 * Thus, Mays v. Dwight, 1 Norris, * Anderson v. Armstead, 69 III. 452. 
 
 Pa. 462 ; Indianapolis v. McAvoy, 86 And see Bird v. Kleiner, 41 Wis. 134. 
 
 271 
 
§ 700 IN GENEEAL WITH ILLUSTRATIONS. [BOOK I. 
 
 § 696. Consideration null — (Void) — If, by reason of the 
 mistake, there is no consideration for the contract, it, like any 
 other similar agreement without consideration, will be void.i 
 Such, for instance, is one's guaranty of another's debt, founded 
 on the debtor's forbearance to levy an attachment for which, 
 in fact, there is no valid ground.^ 
 
 § 697. Executed by Mistake — (Void). — The signing of a 
 writing through mistake as to its contents is within principles 
 already explained, rendering it void ; '^ or it is subject to be 
 cancelled.* 
 
 § 698. In Inducement — (Voidable). — A mistake in the 
 inducement to a contract would seem ordinarily to make it 
 voidable, not void, according to expositions in the last chapter. 
 And it is specially within the doctrine of " Representation " 
 there defined.* But the particular case should be considered. 
 Thus, — 
 
 § 699. Payment in Counterfeits — (As Consideration). — 
 The payment of a debt in counterfeit money or forged paper, 
 believed by both parties to be genuine, does not discharge it, 
 nor is such money or paper a consideration for any promise.® 
 Nor does a forged deed of lands pass the title as against one 
 not participating in the forgery.^ But — 
 
 § 700. Bank paying Forgery — (Like Cases). — A bank is 
 under the duty to know the signatures of its own officers 
 and customers. So that, if it pays to an honest holder the 
 forged check of a depositor, or its own forged bill, it must 
 suffer the loss rather than the other." And there are still 
 other forms of negligence, in banks and other parties, in 
 receiving forgeries, or in not returning them with due 
 
 1 Eovegno v. Defferari, 40 Cal. 459. Hatfield, 2 Johns. 455 ; Gamey v. Wom- 
 
 2 Smith V. Easton, 54 Md. 138. ersley, 4 Ellis & B. 133 ; Young ». Ad- 
 ' Ante, § 346, 645-649. ams, 6 Mass. 182 ; Bamsdale ». Horton, 
 * Schaper v. Schaper, 84 111. 603 ; 3 Barr, 330 ; Lane v. Hogan, 5 Yeig. 
 
 Miller v. Gardner, 49 Iowa, 234 ; Pic- 290. 
 
 ton V. Graham, 2 Des. 592. ' Keck v. Clapp, 2 Out Pa. 581. 
 
 6 Ante, § 661-663 ; Phillips v. Hoi- And see ante, § 676. 
 lister, 2 Coldw. 269 ; Cooper v. Phibbs, 8 United States Bank ». Bank of 
 
 Law Rep. 2 H. L. 149. Georgia, 10 Wheat. 333 ; Levy v. Bank 
 
 « Thomas v. Todd, 6 Hill, N. T. 340 ; of United States, 1 Binn. 27 ; Smith v. 
 
 Jones V. Ryde, 5 Taunt. 488 ; Markle v. Mercer, 6 Taunt. 76. 
 
 272 
 
CHAP. XXIV.] MISTAKE. § 703 
 
 promptness, which the law will visit with the same con- 
 sequence.^ 
 
 § 701. Mistake in one Party — (Estoppel). — If one party 
 only acts under a mistake, and the other is in no degree res- 
 ponsible for it, the contract is ordinarily valid, the former 
 being estopped to set up the mistake as against the latter.^ 
 For example, a person offering to sell to another goods, yet 
 accidentally misdescribing them, is bound by the description 
 should the other, not suspecting the error, accept the offer.^ 
 Hence, — 
 
 § 702. Mutual. — Except in cases depending on special 
 reasons, the mistake which will render a contract void or 
 voidable must be mutual,* or it may be mistake on one side 
 and fraud on the other .^ If, to illustrate mutual mistake, the 
 owner of a horse offers it to an intending purchaser for |165, 
 and the latter, understanding the sum to be |65, takes it 
 home, there is no sale, and the title is not transferred.^ And 
 a compromise of a note, under a mutual misapprehension of 
 the amount due thereon, is ineffectual.^ Still there are mis- 
 takes not within the reasons which created this rule, therefore 
 not within it.* Thus, — 
 
 § 703. Not Mutual. — Plainly a mistake in executing a con- 
 tract ^ need not, to invalidate it, be mutual.^" And there are 
 
 1 Price V. Neal, 3 Bur. 1354; Simms Lanier v. Wyman, 5 Rob. N. Y. 147 ; 
 ». Clark, 11 Dl. 137 ; Burrill y. Water- Brainerd v. Arnold, 27 Conn. 617; 
 town Bank, 51 Barb. 105; Gloucester Tamplin a. James, 15 Cb. D. 215, 217; 
 Bank v. Salem Bank, 17 Mass. 33. See German Am. Ins. Co. v. Davis, 131 
 ante, § 676; Frank v. Chemical Nat. Mass. 316; Schauta v. Keener, 87 Ind. 
 Bank, 84 N. Y. 209 ; Cohen v. Teller, 258 ; Allen v. Hammond, 11 Pet. 63, 71 ; 
 12 Norris, Pa. 123; Clews v. New York Eenshaw v. Lefferman, 51 Md. 277. 
 Banking Assoc. 89 N. Y. 418. 6 Wyche v. Greene, 26 Ga. 415; 
 
 2 Ante, § 317. Worley v. Moore, 77 Ind. 567 ; Cocking 
 8 Scott V. Littledale, 8 Ellis & B. r. Pratt, 1 Ves. sen. 400 ; Bergen v. 
 
 815; McFerran v. Taylor, 3 Cranch, Ebey, 88 111. 269. 
 270. Compare wiih Joliffe v. Baker, « Rupley u. Dajro:ett,74 111. 351. 
 
 11 Q. B, D. 255 ; Carlisle v. Barker, 57 ' Easton ». Strother, 57 Iowa, 506. 
 
 Ala, 267 ; Montgomery v. American « pitcher v. Hennessey, 48 N. Y. 415, 
 
 Emigrant Co. 47 Iowa, 91 ; Lynch's 423. 
 Appeal, 1 Oat. Pa. 349 ; Isle Boyale » Ante, § 697 
 
 Min. Co. V. Hertin, 37 Mich. 332. See i" Pitcher v. Hennessey, 48 N. Y. 415, 
 
 Paget V. Marshall, 28 Ch. D. 255. 424 ; Foster v. Mackinnon, Law Rep. 
 
 4 Nevius V. Danlap, 33 N. Y. 676; 4 C. P. 704, 711. 
 
 18 273 
 
§ 705 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 other cases within this sort of exception. But the reason for 
 the rule of mutuality having now been made to appear, the 
 reader will have no difficulty in distinguishing the exceptions 
 as they arise.^ 
 
 § 704. Mistaking Law — Fact. — As stated in a preceding 
 chapter ,2 a misapprehension of the law is, in legal contempla- 
 tion, impossible ; because of a conclusive presumption that 
 the party knows it. Therefore what in common speech is 
 termed a mistake of it does not impair a contract in a court of 
 law, or furnish ground for its rectification in equity.* Any 
 mistake, to be available, must be of fact.* Such is the strict, 
 hard doctrine. But, in practice, it is often so construed as to 
 be considerably mollified, yet mollified to what extent no one 
 can say ; for the decisions are in discord, past reconciliation. 
 Thus, — 
 
 § 705. Construction of Contract. — Within this distinction, 
 is the relation of parties, created by a contract, one of fact or 
 of law?® In reason, it should be held to be of fact, since 
 justice is by such construction best promoted. And there are 
 many adjudications which go so far as to affirm that, if the 
 terms which parties employ fail to carry out their purpose be- 
 cause of their misapprehending the law, the contract will be 
 accordingly reformed in equity, — a sort of mistake which is 
 sometimes, it is submitted not correctly, spoken of as of law.^ 
 
 1 Consult Edinburg Am. &c. Co. v. ^ Ante, § 465. 
 
 Latham, 88 Ind. 88; Cocking u. Pratt, ^ Canedy v. Marcy, 13 Gray, 373, 
 
 1 Ves. sen. 400; Eockville Bank v. La- 377 ; Stover v. Poole, 67 Maine, 217, 
 
 fayette Bank, 69 Ind. 479; Paget v. 223; Sparks w. Pittman, 51 Missis. 511 ; 
 
 Marshall, 28 Ch. D. 255. Jones v. Munroe, 32 Ga. 181 ; Evants v. 
 
 2 Ante, § 462-465. Strode, 11 Ohio, 480; Broadwell ». 
 ' Goltra V. Sanasack, 53 El. 456; Broadwell, 1 Gilman, 599. See Claik 
 
 Weed V. Weed, 94 N. Y. 243 ; Snell v. v. Girdwood, 7 Ch. D. 9. In many of 
 
 Insurance Co. 98 U. S. 85 ; Glenn v. the cases it is said that a mistake of law 
 
 Statler, 42 Iowa, 107; Toops v. Sny- will, in exceptional circumstances, be 
 
 der, 70 Ind. 554; Bilbie v. Lnmley, 2 permitted to avoid a contract ; as, where 
 
 East, 469; Brisbane w. Dacres, 5 Taunt it evidences fraud, imposition, or im- 
 
 143 ; Bank of United States v. Daniel, proper influence. For example, Stover 
 
 12 Pet. 32. V. Poole, 67 Maine, 217. Butit seems to 
 
 * Midland, &c. Eailway v. Johnson, me that, in all this class of cases, either 
 
 6 H. L. Cas. 798, 4 Jur. n. s. 643 ; the mistake was incorrectly termed one 
 
 Marshall v. CoUett, 1 Y. & Col. Ex. 232, of law, or the real ground of relief 
 
 238; Kelly v- Solari, 9 M. & W. 54. was the fraud, the undue influence, or 
 274 
 
CHAP. XXIV.] MISTAKE. § 707 
 
 There are other decisions which, while not accepting this 
 doctrine for the ordinary cases, enforce it when the mistake is 
 the product of the fault or misrepresentation of the opposite 
 party, especially if such party stands in a relation of confi- 
 dence to the other, and even if he does not.^ On the other 
 hand, there is a great deal of authority to the proposition that, 
 where the words were meant by the parties, there can be no 
 relief though they mistook their legal effect.^ Plainly this 
 latter rule would be applied, by every court, to any case 
 where there was no pre-existing contract, which the final one 
 was attempting to carry into effect.* 
 
 § 706. other Like Distinctions, — and nice questions, in- 
 volving more or less of discordant adjudication, appear in the 
 books ; but it is not deemed necessary to look into the sub- 
 ject further here.* Instructive similitudes may be found in 
 the expositions of the last chapter. 
 
 II. Reforming and Rescinding in Equity. 
 
 § 707. Writing not truly expressing Agreement. — Where 
 parties, having entered into an oral agreement, undertake 
 simply to reduce it to writing, if, by some mistake of the 
 draughtsman, or their own misapprehension as to the effect of 
 the words employed,^ or otherwise, it is found after execution 
 
 the other thing, whatever it may have upon the deed, but I should not have 
 
 been. That a mistake of law mingles the least hesitation in holding that it 
 
 with another matter of complaint, or does constitute a defence; and I think 
 
 that the other matter proceeded from that we have been referred to no author- 
 
 snch mistake, or was caused by it, is in ity which should induce us to decide 
 
 no case prejudicial. otherwise." Hirschfeld v. London, &c. 
 
 1 Drew V. Clarke, Cooke, Tenn. 373; Railway, 2 Q. B. D. 1, 5, 6. 
 
 Meckley's Estate, 8 Harris, Pa. 478 ; ^ Gerald v. EUey, 45 Iowa, 322 ; Ot- 
 
 Zane v. Cawley, 6 C. E. Green, 130; tenheimer «. Cook, 10 Heisk. 309 ; Beall 
 
 Sparks v. White, 7 Humph. 86 ; Jenkins v. McGehee, supra ; Miller v. Chippe- 
 
 o. German Luth. Cong. 58 Ga. 125; wa, 58 Wis. 630; Bell v. Lawrence, 
 
 Beall V. McGehee, 57 Ala. 438. In a 51 Ala. 160; Spencer v. Millisaek, 52 
 
 late English case, Lush, J., observed: Iowa, 31. 
 
 " I do not think that we need determine s Hunt v. Rhodes, 1 Pet. 1, 13; 
 
 the question which has mainly been ar- Clark v. Hart, 57 Ala. 390. And see 
 
 gued, whether a fraudulent representa- Robertson v. Walker, 51 Ala. 484. 
 
 tion as to the effect of a deed can be * And see ante, § 465. 
 
 relied upon as a defence to an action ' Ante, § 705. 
 
 275 
 
§ 709 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 not to contain or mean what both meant, yet still one insists 
 on standing upon its terms, a court of equitj'^ will on prayer 
 of the other reform it to express their real agreement, or in 
 proper circumstances declare it void. The mistake must, in 
 general, be mutual ; ^ and it must be clearly established by the 
 proofs, which may be either oral or written.^ Indeed, — 
 
 § 708. 'Weight of Proofs. — In no case will a court decree 
 an alteration in the terms of a duly executed written contract, 
 unless the proofs are full, clear, and decisive.' Mere prepon- 
 derance of evidence is not enough, the mistake must appear 
 beyond reasonable controversy.* 
 
 § 709. Conveyance of Land. — Our subject finds a frequent 
 illustration in deeds of real estate. If, after a sale or lease 
 and possession taken, the deed is found to describe the wrong 
 parcel, or too much or too little of the right one, or to de- 
 scribe the right one defectively, the party aggrieved may have 
 it reformed, on due proofs, which in such a case are commonly 
 easy.* And, where the proofs are sufficiently plain, possession 
 is not an essential element.® The like rule applies also to any 
 
 1 Ante, § 701-703. Stephens v. Murton, 6 Oregon, 193; 
 
 2 Druiff V. Parker, Law Rep. 5 Eq. Mastelar v. Edgarton, 44 Iowa, 495 ; 
 131, 139 ; In re De la Touche, Law Popplein v. Foley, 61 Md. 381 ; Kelley 
 Rep. 10 Eq. 599 ; White v. White, Law v. McKinney, 5 Lea, 164 ; Cotton States 
 Rep. 15 Eq. 247; Huss v. Morris, 13 Life Ins. Co. v. Carter, 65 Ga. 228. 
 Smith, Pa. 367 ; Shay «. Pettes, 35 111. * German Am. Ins. Co v. Davis, 131 
 360; Lyman v. United Insurance Co. Mass. 316; Wry v. Cutler, 12 Heisk. 
 17 Johns. 373; Clayton v. Bussey, 30 28; Stover v. Poole, 67 Maine, 217; 
 Ga. 946; Rogers v. Atkinson, 1 Kelly, Alexander v. Caldwell, 55 Ala. 517; 
 12; Greer v. Caldwell, 14 Ga. 207; Campbell v. Hatchett, 55 Ala. 548; 
 Scales V. Ashbrook, 1 Met. Ky. 358 ; Vreeland v. Bramhall, 1 Stew. Oh. 85 ; 
 Harrison u. Jameson, 3 J. J. Mar. 232 ; Flaacke v. Jersey City, 1 Stew. Ch. 110; 
 Bigsbee v. Trees, 21 Ind. 227 ; Lanier v. Cummins v. Bulgiu, 10 Stew. Ch. 476. 
 Wyman, 5 Rob, N. Y. 147 ; Evants v. * Potter v. Potter, 27 Ohio State, 84, 
 Strode, 11 Ohio, 480; Hull v. Cunning- 85 ; Hinton v. Citizens Mut. Ins. Co. 63 
 ham, 1 Munf. 330 ; Argcnbright v. Camp- Ala. 488. 
 
 bell, 3 Hen. & M. 144; Waterman v. « Broadwell v. Phillips, 30 Ohio 
 
 Diitton, 6 Wis. 265 ; Nevius v. Dnnlap, State, 255 ; MuiTay v. Hake, 46 Cal. 
 
 33 N. Y. 676 ; Proctor v. Thrall, 22 Vt. 644 ; Jones v. Sharp, 9 Heisk. 660 ; El- 
 
 262 ; Montville v. Haughton, 7 Conn, liott v. Horton, 28 Grat. 766 ; Harold v. 
 
 543 ; Garner v. Garner, 1 Des. 437 ; Weaver, 72 Ala. 373. 
 
 Lanning v. Carpenter, 48 N. Y. 408 ; " Ramsey i'. Loomis, 6 Oregon, 367 ; 
 
 Schweaf v. Haupt, 49 Misso. 225 ; Mead Kostenbader v. Peters, 30 Smith, Pa. 
 
 V. Westchester Fire Ins. Co. 64 N. Y. 438; Preston v. Williams, 81 III. 176; 
 
 453; Briegel v. Moeller, 82 111. 257; Carver v. Lassallette, 57 Wis. 232; 
 
 -276 
 
CHAP. XXIV.] MISTAKE. § 712 
 
 other error in the deed ; thus, if the scrivener writes " suc- 
 cessors," meaning " heirs," ^ or otherwise omits or mistakes 
 the words of inheritance,^ equity will reform it. Or if it is 
 found defective in any formality essential to its taking effect,' 
 or to contain a clause stipulating what the parties did not in- 
 tend,* reformation will be granted. But, — 
 
 § 710. Third Persons. — In these and other like cases, the 
 rights of third persons, acquired in good faith and for value, 
 will be protected ; so that, as against them, there can be no 
 reformation.^ But a third person who knew of the mistake 
 when he obtained the interest cannot object to the correction.^ 
 
 § 711. Nature of Mistake — (Form of Remedy). — The 
 mistake must be material;^ and such that, but for it, the 
 complaining party would not have assumed the obligation.^ 
 Then the remedy will be adjusted to the equities of the 
 particular case.^ 
 
 § 712. Procedure. — The reformation is properly on an ap- 
 plication to the equity tribunal for the express purpose ; but 
 if, in any suit in equity, a contract is set up, the court may 
 reform it.'° And where, as in some of our States, equitable 
 claims and defences are maintainable in proceedings at law, 
 the court of law may in like manner reform the contract 
 collaterally .^1 But, — 
 
 Cake V. Feet, 49 Conn. 501 ; Bobbins Foster v. Kingsley, supra. See Carrer 
 
 V. Magee, 76 Ind. 381 ; Parish v. Scott, v. Lassallette, 57 Wis. 232. 
 
 10 Heisk. 438 ; Dane v. Derber, 28 " Ante, § 652. 
 
 Wis. 216. 8 Grymes v. Sanders, 93 TJ. S. 55. 
 
 1 McMillan v. Fish, 2 Stew. Ch. » Boone v. Ridgway, 2 Stew. Ch. 
 610. 543; McMuUen v. Lockwood, 4 Del. 
 
 2 Nicholson v. Caress, 59 Ind. 39 ; Ch. 568 ; Groves v. Perkins, 6 Sim. 576 ; 
 Randolph v. New Jersey W. L. Rail- Keating v. Price, 58 Md. 532 ; Story v. 
 road, 1 Stew. Ch. 49 ; Wanner v. Sis- Conger, 36 N. Y. 673 ; Paine v. Upton, 
 son, 2 Stew. Ch. 141. 87 N. Y. 327; Cassidy v. Metcalf, 66 
 
 ' Berryu. Sowell, 72 Ala. 14; Gerdes Misso. 519; Snyder v. Ives, 42 Iowa, 
 
 V. Moody, 41 Cal. 335. See ante, 157 ; Oldham v. Wilmington Bank, 85 
 
 § 394. N. C. 240. 
 
 * Bull V. Titsworth, 2 Stew. Ch. 73 ; i" Shelby v. Smith, 2 A. K. Mar. 504 ; 
 
 Culver V. Badger, 2 Stew. Ch. 74; Smith w. Allen, Saxton, 43. 
 
 Elliott ". Sackett, 108 U. S. 132. " Ante, § 372, 687 ; Hall v. Guilford, 
 
 5 Henry v. Smith, 76 N. C. 311 ; 74 N. C. 130; Pitcher v. Hennessey, 48 
 Foster «. Kingsley, 67 Maine, 152. N. Y. 415; Van Dusen v. Parley, 40 
 
 6 Preston v. Williams, 81 111. 176; Iowa, 70. 
 
 27 
 
§ 714 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 § 713. At Law. — In a court of law, under the common- 
 law rules, though it is always a question whether or not a 
 particular contract in writing has been so executed as to 
 bind the parties ; ^ yet, if it has, not what they intended, as 
 explained by parol, but its terms, as interpreted by the court, 
 will prevail ; nor can the writing be reformed, though in 
 some circumstances it may be shown to be void for fraud, 
 duress, or mistake.^ There are, therefore, contracts, not so 
 imperfect through mistake as to be adjudged void in a court 
 of law, reformable in equity, while others which would be 
 so reformed, or pronounced void, are void also at law. 
 
 § 714. The Doctrine of this Chapter restated. 
 
 Theoretically, any mistake, even of one of the parties, so 
 material that, but for it, the contract would not be made, 
 renders it a nullity ; because the consent of both parties, to 
 the same thing, given at the same instant of time, is essential 
 to its constitution. But, in practical affairs, this requirement 
 of mutual consent to a contract is only one of many doctrines 
 which regulate the intercourse of men ; and, when other doc- 
 trines combine with this one, the result may be quite differ- 
 ent. For example, the doctrine of estoppel may preclude a 
 party from setting up the mistake, and so may the doctrine 
 which protects an innocent third person who has acquired 
 rights under a form of contract put forth by a party as valid. 
 In ways like these the abstract doctrine of mistake has be- 
 come greatly limited. Not only should the practitioner be 
 on the alert to note the limitations already spoken of in this 
 chapter ; but, in cases of difficulty, he should search for oth- 
 ers, which may be found interspersed among the other doc- 
 trines of the entire law. 
 
 1 Ante, §340-361, 646-649, 697; 1 425; Sanford v. Howard, 29 Ala. 684; 
 Greenl. Ev. § 284. Griswold v. Scott, 13 Ga. 210; Fitts v. 
 
 2 Shankland v. Washington, 5 Pet. Brown, 20 N. H. 393 ; Cato v. Thomp- 
 390, 394 ; Caldwell v. Maj, 1 Stew, son, 9 Q. B. D. 616. 
 
 278 
 
CHAP. XXV.] DURESS. § 718 
 
 CHAPTER XXV. 
 
 CONTBACTS MADE UNDER DURESS. 
 
 § 715. Defined. — Duress is any unlawful, physical force, 
 applied or threatened to the person of the party, or of the 
 party's husband, wife, parent, or child, through constraint of 
 which he, in form, consents to what he otherwise would not. 
 This definition is believed to be accurate as tested by the 
 better authorities, but at some points it departs slightly from 
 various utterances in the books. 
 
 § 716. Actual or Threatened. — It is immaterial whether 
 the duress is actual or only, in a serious and effectual man- 
 ner, threatened.! This idea is expressed in the older books 
 by dividing it, in the words of Blackstone, into " two sorts, 
 duress of imprisonment, where a man actually loses his lib- 
 erty, and duress per minas, where the hardship is only threat- 
 ened and impending." ^ 
 
 § 717. Imprisonment. — A familiar form of duress is actual 
 or threatened imprisonment; always, where unlawful, suffi- 
 cient.^ An unlawful imprisonment, otherwise called false 
 imprisonment, is any restraint of one's liberty in any place, 
 whether used for imprisonment generally or only on the par- 
 ticular occasion, and whether by bolts and bars or by words 
 and an array of force.* Also, — 
 
 § 718. other Bodily Harm. — Besides imprisonment, all the 
 authorities hold a menace of life or limb, or of a mayhem, to 
 
 1 Baker v. Morton, 12 Wal. 150; Hill, N. Y. 154; Whitefield v. Long- 
 Seymour V. Prescott, 69 Maine, 376. fellow, 13 Maine, 146 ; Bowker v. Low- 
 
 2 1 Bl. Com. 130, 131 ; Mundy v. ell, 49 Maine, 429. 
 Whittemore, 15 Neb. 647, 651. * 2 Bishop Crim. Law, § 748. 
 
 * 2 Inst. 482 ; Foshay v. Ferguson, 5 
 
 279 
 
§ 719 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 be duress.^ Nor do the older ones admit that any other form 
 of threatened or actual violence to the person, or any mere 
 battery, is such ; because, it was deemed, the law's redress is, 
 for these latter wrongs, adequate, yet not for the former, and 
 the injured party should not permit fear to overcome his 
 will when he is fully protected by the law.^ But, in reason, 
 a disgraceful public beating, or a tarring and feathering, is, 
 at least, as much to be dreaded, and as inadequately compen- 
 sated by a lawsuit, as a slight restraint of locomotion ; and 
 the better modern opinion is, that any serious bodily harm, 
 actual or threatened, is duress.^ 
 
 § 719. Fear — Mind acted on. — Only when the duress, 
 through exciting the fear of the party, becomes the cause 
 of his executing the contract, will its validity be impaired.* 
 Coke adds : " It must not be a vain fear, but such as may 
 befall a constant man ; as, if the adverse party lie in wait 
 in the way with weapons, or by words menace to beat, may- 
 hem, or kill him." ^ The illustration, in the second clause of 
 this extract, of the proposition in the first, shows that this 
 great lawyer failed to distinguish between the mind acted 
 upon and the thing menaced. And herein we have, perhaps, 
 the origin of a proposition found in many of the cases, yet 
 certainly incorrect; namely, that the threat must be such as 
 would excite the reasonable apprehensions of a person of 
 ordinary courage.® The doctrines of our next chapter teach 
 us that, in exact accord with fundamental reason, the law of 
 contracts considers the quality of the contracting mind;'^ 
 and, therefore, holds the apparent yet unreal consent of a 
 subject or timid person, or person of inferior intellect, as 
 
 1 Bogle V. Hammons, 2 Heisk. 136; Hamilton v. Smith, 57 Iowa, 15; Ad- 
 Baker V. Morton, 12 Wal. 150. ams v. Stringer, 78 Ind. 175 ; Feller v. 
 
 2 2 Inst. 483 ; 1 Bl. Com. 131. Green, 26 Mich. 70; Knapp v. Hyde, 60 
 8 Foshay v. Ferguson, 5 Hill, N. T. Barb. 80. 
 
 154 ; Collins v. Westbury, 2 Bay, 211 ; « Co. Lit. 2536. 
 Adams v. Stringer, 78 Ind. 175; Baker « Bosley v. Shanner, 26 Ark. 280; 
 
 u. Morton, 12 Wal. 150; Burr v. Bur- Miller v. Miller, 18 Smith, Pa. 486; 
 
 ton, 18 Ark. 214; Bosley v. Shanner, Bane v. Detrick, 52 111. 19; Barrett v. 
 
 26 Ark. 280 ; Miller v. Miller, IS Smith, French, 1 Conn. 354. 
 Pa. 486. ' Post, § 733. 
 
 * Bobinson v. Gould, 11 Cush, 55, 58 ; 
 
 280 
 
CHAP. XXV.] DURESS. § 721 
 
 invalid as that of the strongest and most independent under- 
 standing, though the latter would not have been inthralled 
 where the former was.^ 
 
 § 720. Judicial Process, — whether civil or criminal, is not 
 duress. Therefore one arrested or imprisoned under it, or 
 threatened therewith, when lawful in form, fairly conducted, 
 and without malice, may, to free himself therefrom, or for 
 any other purpose, enter into any agreement which would 
 otherwise be permissible, precisely the same as in ordinary 
 circumstances.2 Still the contract of a man imprisoned, 
 though lawfully, will on that account be more carefully scru- 
 tinized by the court.^ But — 
 
 § 721. Process Unlawful or Abused. — A VOid judicial pro- 
 cess is the same as none ; therefore a contract procured by 
 an arrest or imprisonment under it is invalid.* And, beyond 
 this, any abuse of process, however correct in form, — as, for 
 example, where it is malicious and without probable cause, 
 or where a lawful imprisonment is carried to an' unlawful 
 degree, or, it appears, any other abuse of a sort which the 
 law recognizes, — will be deemed duress, vitiating a contract 
 entered into under its influence.^ All proceedings taken for 
 unlawful purposes, however lawful otherwise, are within this 
 
 ^ And see observations of Caldwell, Texas, 539 ; Prichard v. Sharp, 51 
 
 J., in James v. Roberts, 18 Ohio, 548, Mich. 432. 
 562. 8 Brinkley v. Hann, Drury, 175. See 
 
 2 Ante, § 494 ; Waterman v. Barratt, Hutsoa v. Hutson, 7 T. R. 7 ; Evans v. 
 4 Harring. Del. 311 ; Bates v. Butler, Begleys, 2 Wend. 243. 
 46 Maine, 387; Holmes v. Hill, 19 * Alexander b. Pierce, 10 N. H. 494 ; 
 Misso. 159; Kelley v. Noyes, 43 N. H. Fisher v. Shattuck, 17 Pick. 252; Guil- 
 209; Eddy v. Herrin, 17 Maine, 338; leaume v. Eowe, 94 N. Y. 268 ; Davis w. 
 Wilcox V. Rowland, 23 Pick. 167 ; Tay- Luster, 64 Misso. 43. 
 lorw. Cottrell, 16 111. 93; Sonle v. Bon- ^ Osborn v. Robbins, 36 N. Y. 365; 
 ney, 37 Maine, 128; Stebbins y. Niles, Shaw w. Spooner, 9 N. H. 197; Mead- 
 25 Missis. 267 ; Nealley v. Greenongh, 5 ows v. Smith, 7 Ire. Eq. 7 ; Breck v. 
 Fost. N. H. 325 ; Knapp v. Hyde, 60 Blanchard, 2 Fost. N. H. 303 ; StouflFer 
 Barb. 80; Kelsey v. Hobby, 16 Pet. 269; v. Latshaw, 2 Watts, 165, 167 ; While- 
 Smith w. Atwood, 14 Ga. 402; Felton field d. Longfellow, 13 Maine, 146; Fay 
 V. Gregory, 130 Mass. 176; Smillie i>. Oatley, 6 Wis. 42 ; Gumming u. Ince, 
 V. Titus, 5 Stew. Oh. 51; Bodine v. II Q. B. 112; Phelps v. Zuschlag, 34 
 Morgan, 10 Stew. Ch. 426 ; Peckham Texas, 371 ; Thurman v. Burt, 53 111. 
 «. Hendren, 76 Ind. 47 ; Plant w. Gunn, 129; Kelsey v. Hobby, 16 Pet. 269; 
 2 Woods, 372 ; . Landa v. Obert, 45 HuUhorst v. Scharner, 15 Neb. 57. 
 
 281 
 
§ 725 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 rule.i Such, for instance, is a criminal prosecution to procure 
 civil redress.2 
 
 § 722, Duress of Goods. — It is settled in England, that no 
 taking or detention of one's goods will constitute the duress 
 which avoids a contract.^ And in a general way, or to an 
 extent not quite definable, or varying with the States, the 
 same rule prevails with us.* Plainly, therefore, — 
 
 § 723. Law Suit — (Breach of Contract). — The threat of 
 levying an execution, or of bringing a suit at law affecting 
 goods,^ even though the party is in need, and the opposing 
 party is the government,® will not constitute duress. Nor 
 will the threat to withhold payment of a debt,^ or to violate 
 any other contract.^ Still, — 
 
 § 724. Exceptions as to Duress of Goods. — In a part or all 
 of our States, duress of goods, including a threat to destroy 
 them, is, in circumstances of extreme oppression, not further 
 definable or not uniform, put on a like ground with duress of 
 the person, avoiding the contract.^ And, — 
 
 § 725. Recovering back Money. — Both in England and 
 with us, the unlawful detention of personal property, or the 
 threat to take it unlawfully, even though under the forms of 
 law, is, while it may not have the effect of duress, or be re- 
 garded as such, deemed so far a compulsion that money paid 
 to retain or regain the possession may be recovered back as 
 not parted with voluntarily.^" The reasoning appears to be, 
 
 1 Phelps V. Zuschlag, supra ; Rich- 584 ; Wilcox v. Howland, 23 Pick, 
 ardson v. Duncan, 3 N. H. 508 ; Toshay 167. 
 
 V. Ferguson, 5 Hill, N. Y. 154, 157; « United States v. Child, 12 Wal 
 
 Severance v. Kimball, 8 N. H. 386. 232, 243. 
 
 2 Seiber v. Price, 26 Mich. 518. ' Miller v. Miller, 18 Smith, Pa. 486; 
 8 2 Inst. 483 ; Summer v. Ferryman, Hackley v. Headley, 45 Mich. 569. 
 
 cited 2 Stra. 917; Skeate v. Beale, 11 » McCarty w. Hampton Build. Assoc. 
 
 A. & E. 983, 990 ; Atlee v. Backhouse, 61 Iowa, 287. 
 
 3 M. & W. 633, 650 ; Gates v. Hudson, 9 Spaids v. Barrett, 57 111. 289 ; Col- 
 
 6 Exch. 346, 348. lins i). Westbury, 2 Bay, 21 1 ; Saspor- 
 
 * Lehman v. Shackleford, 50 Ala. tas w. Jennings, 1 Bay, 470; Fosliay w. 
 
 437 ; Bingham v. Sessions, 6 Sm. & M. Ferguson, 5 Hill, N. Y. 154; Hibbard 
 
 13; Hazelrigg v. Donaldson, 2 Met. v. Mills, 46 Vt. 243. See Williams v. 
 
 Ky. 445. Phelps, 16 Wis. 80. 
 
 5 Mayhew v. Phoenix Ins. Co. 23 " Atlee t). Backhouse, 3 M. & W. 
 
 Mich. 105; Miller v. Miller, 18 Smith, 633,650; Duke de Cridaval w. Collins, 4 
 
 Pa. 486; Wells v. Barnett, 7 Texas, A. & E. 858; Ashmole ». Wainwright, 
 282 
 
CHAP. XXV.] DURESS. § 726 
 
 that, in duress, the party was compelled to the contract be- 
 cause he could not have adequate redress at law for the 
 unlawful force ; ^ but, in the cases thus justifying the recov- 
 ery of the money, "we must take it," to follow the judicial 
 language in one case, "he paid the money relying on his 
 legal remedy to get it back." ^ Parke, B. stated the distinc- 
 tion to be, that, " if my goods have been wrongfully detained, 
 and I pay money simply to obtain them again, that, being 
 paid under a species of duress or constraint, may be recovered 
 back ; but if, while my goods are in possession of another 
 person, I make a binding agreement to pay a certain sum 
 of money and to receive them back, that cannot be avoided 
 on the ground of duress." ^ On the other hand, as to the 
 latter point, we have American authority for the proposition 
 that, since money paid in these circumstances can be recov- 
 ered back, an agreement to pay it is null.* Of course, money 
 given to get control again of goods lawfully attached on a 
 just demand cannot be reclaimed,^ nor can any payment 
 which was compelled by a valid judicial judgment against 
 the party paying.^ Again, — 
 
 § 726. In Equity — contracts are set aside for force excit- 
 ing apprehensions short of the duress of the common law.'^ 
 For, says Story, " the constant rule in equity is that, where 
 a party is not a free agent and is not equal to protecting 
 himself, the court will protect him." ^ 
 
 2 Q. B. 837, 6 Jur. 729 ; Mariposa Co. v. ^ Astley v. Reynolds, 2 Stra, 915, 
 
 Bowman, Deady, 228 ; Hendy w. Sonle, 916. 
 
 Deady, 400 ; Sartwell v. Horton, 28 "Vt. « Atlee v. Backhouse, supra. 
 
 370; Ogden «. Maxwell, 3 Blatch. 319; < Bennett v. Ford, 47 Ind. 264; 
 
 People V. Vischer, 9 Cal. 365 ; Maxwell Crawford v. Cato, 22 Ga. 594. 
 
 V. Griswold, 10 How. U. S. 242; Har- « Kohler w. Wells, 26 Cal. 606. And 
 
 mony v. Bingham, 2 Kernan, 99 ; Beck- see McMillan v. Vischer, 14 Cal. 232 ; 
 
 with V. Frisbie, 32 Vt. 559; Harvey v. Dickerman v. Lord. 21 Iowa, 338. 
 
 Olney, 42 111. 336; Laterrade v. Kaiser, 6 pe Medina ;;. Grove, 10 Q. B. 152. 
 
 15 La. An. 296; Dakota v. Parker, 7 Compare with Coady o. Curry, 8 Daly, 
 
 Minn. 267 ; Chase v. Dwinal, 7 Greenl. 58. 
 
 134 ; Quinnett v. Washington, 10 Misso. ' 1 Story Bq. § 239 ; Davis v. Luster, 
 
 53. 64 Misso. 43 ; Brown v. Peck, 2 Wis. 
 
 1 Ante, §718; Skeate v. Beale, 11 261; Central Bank r. Copeland, 18 Md. 
 
 A. & E. 983, 990; Miller v. Miller, 18 305. See Davis v. Fox, 59 Misso. 125. 
 
 Smith, Pa. 486. * 1 Story Eq. § 239. See post, § 732. 
 
 283 
 
§ 729 IN GENERAL WITH ILLUSTRATIONS, [BOOK I, 
 
 § 727. To Party — (Husband — Wife — Parent — ChUd). — 
 In general, only duress to the party, not to a third person, 
 will avoid the contract.^ But husband and wife are so far 
 one that the duress of either will render invalid the other's 
 undertaking made to procure disinthralment.^ And within 
 the same rule is the relation of parent and child ; ^ but proba- 
 bty no other relationship is, though the question does not 
 appear to be conclusively settled. 
 
 § 728. Voidable — (innocent Third Persons). — In general, 
 tlie party exercising the duress is bound, and the other has 
 his election whether to abide by the contract or repudiate it ; * 
 therefore it belongs to the class ^ termed voidable, and not 
 void.^ For example, negotiable paper, obtained by duress, is 
 good in the hands of a third person who received it before 
 maturity, in good faith, for value.^ But one who took it 
 with notice of the duress cannot enforce payment.* On the 
 other hand, — 
 
 § 729. Void. — There are circumstances in which the duress 
 makes the contract void. Thus, if, recurring to distinctions 
 stated under the title " Fraud," ® the party does not render 
 even an imperfect consent to the bargain itself, but simply 
 signs the writing or pronounces the oral words under the pres- 
 sure of duress, the entire lack of any yielding of his will evi- 
 dently leaves the formal contracting simply null. And there 
 
 1 Robinson v. Gould, 11 Cnsh. 55, 57 
 McClintick v. Cummins, 3 McLean, 158 
 Spaulding v. Crawford, 27 Texas, 155 
 
 Maine, 376 ; Coffman v. Lookout Bank, 
 5 Lea, 232; Williams v. Bayley, Law 
 Eep. 1 H. L. 200. 
 
 Scheet!. McQuilken, 59 Ind. 269; Bow- * Ante, § 678; Ormes v. Beadel, 2 
 
 man v. Hiller, 130 Mass. 153. De G. F. & J. 333. 
 
 2 Singer Manuf. Co. v. Rawson, 50 6 Ante, § 611, 617. 
 
 Iowa, 634 ; Nevada Bank v. Bryan, 62 <^ 2 Inst. 482, 483 ; Huscombe v. 
 
 Iowa, 42; Harris u. Carmody, 131 Mass. Standing, Cro. Jac. 187; Whelpdale's 
 
 51, and authorities there cited. See Case, 5 Co. 119a; Veach w. Thompson, 
 
 Mundy v. Whittemore, 15 Neb. 647; 15 Iowa, 380; Clark f. Pease, 41 N. H. 
 
 Wright V. Remington, 12 Vroom, 48; 414. See Loomis o. Ruck, 56 N. Y. 462. 
 
 Remington v. Wright, 14 Vroom, 451. ' Veach v. Thompson, 15 Iowa, 380; 
 
 ' Harris v. Carmody, supra ; Shenk Clark v. Pease, 41 N. H. 414 ; Rogers v. 
 
 V. Phelps, 6 Bradw. 612 ; McClintick v. Adams, 66 Ala. 600. 
 
 Cummins, 3 McLean, 158; Osborn v. * Osborn v. Robbins, 86 N. Y. 365, 
 
 Robbins, 36 N. Y. 365, 372. See Met- 371. 
 
 ropolitan Life Ins. Co. v. Meekar, 85 ' Ante, § 645-649, 671. 
 N. Y. 614; Seymour i<. Prescott, 69 
 284 
 
CHAP. XXV.] DURESS. § 730 
 
 are other exceptional cases, not quite within this distinction, 
 in which also the contract will be void rather than voidable.^ 
 
 § 730. The Doctrine of this Chapter restated. 
 
 The principles laid down in the chapters on " Fraud " and 
 " Mistake " apply also to duress. Each of these three imped- 
 iments inthralls the will ; so that either it gives no consent 
 in fact, in which case the contract is void, or a vitiated 
 consent, rendering it voidable. In duress, there are some 
 propositions of law, or, at least, propositions accepted in the 
 common-law courts, which seem a little technical. In rea- 
 son, any unlawful exercise of physical force, the effect where- 
 of is to induce a person to become a party to an apparent 
 contract, should be deemed duress. And the test of it should 
 be simply and only, whether or not, in the particular in- 
 stance, it produced this effect. Not quite so, we have seen, 
 is the language of the books ; yet the authorities are not so 
 conclusive against this view as to render hopeless the urging 
 of it upon an intelligent court, in a proper case. No form of 
 lawful force is duress, since one could not ask relief from the 
 legitimate effects of a lawful compulsion. 
 
 • Nevada Bank v. Bryan, 62 Iowa, Singer Manuf. Co. u. Bawson, 50 Iowa, 
 42; Loomis v. Buck, 56 N. Y. 462; 634. 
 
 285 
 
§ 733 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 CHAPTER XXVI. 
 
 CONTKACTS UNDER CONSTRAINING COMBINATIONS AND 
 OTHER CONSTRAINTS THAN THE FOREGOING. 
 
 § 731. Relations of Subject. — This chapter is related to 
 the last three as already pointed out.^ 
 
 § 732. Equity. — The books often explain that, in our dual 
 system of law and equity, the equity and common-law courts 
 have concurrent jurisdiction of frauds ; yet that equity has 
 more effective forms to redress them than law, and, to a slight 
 degree, or in some particulars, rules further reaching.^ It is 
 equally so, also, with mistake and duress.^ The constraints 
 of this chapter come oftener for redress before the equity tri- 
 bunals, and less frequently before those of common law, than 
 unmingled fraud, mistake, or duress, to all of which they 
 are related. The partition lines between the jurisdictions of 
 law and equity are not drawn in all our States at precisely the 
 same places,* and through legislation they are becoming grad- 
 ually effaced altogether ; ^ therefore it is not deemed best that 
 much of our space be here occupied in explanations respect- 
 ing them. 
 
 § 738. Mingling of Impediments to Consent. — The law — 
 not now considering in what tribunals, whether of equity or 
 common law, administered — will not suffer that to be im- 
 posed upon a partj' as his contract which did not in fact re- 
 ceive the assent of his uninthralled will, except in special 
 
 1 Ante, § 638-640. 8 Story Eq. ut sup. ; Central Bank 
 
 2 1 Story Eq. 59-62; 1 Chit. Gen. v. Copeland, 18 Md. 305; ante, §707- 
 Pract. 779, 786 ; Smith v. Mclver, 9 713, 726 ; Crawford w. Cato, 22 Ga. 594, 
 Wheat. 532; Wyche u..Greene, 11 Ga. « See, for illustration, ante, § 281. 
 159 ; English v. Benedict, 25 Missis. 167. > Ante, § 372, 478, note, 687, 712. 
 
 286 
 
CHAP. XXVI.] COMBINING AND OTHER CONSTRAINTS. § 737 
 
 circumstances of estoppel and the like, not necessary to be 
 here pointed out.^ In practical affairs, men are often sub- 
 jected to numbers of adverse influences concurring ; and, when 
 two or more things combine to prevent a real consent to what 
 is outwardly a contract, while yet no one of the things alone 
 would have wrought the result, it is the same as though one 
 such thing, augmented by enough of its kind, and operating 
 without the others, had done it.'^ Thus, — 
 
 § 734. Drunkenness and Fraud. — Drunkenness in the one 
 party and fraud in the other may so combine as to vitiate the 
 contract, when neither was sufficient in degree to produce 
 alone the result.^ So — 
 
 § 735. Mental Weakness or Illiteracy and Fraud. — Weak- 
 ness of intellect or illiteracy, less intense than the law re- 
 quires to avoid a contract, may, in conjunction with less of 
 fraud, produce this consequence.* Again, — 
 
 § 736. Smallness of Consideration Combining. — Too small 
 a consideration, yet not in itself impairing the contract, may 
 combine with fraud, undue influence, mental weakness, im- 
 mature years, or drunkenness, or all these may unite, and to- 
 gether produce a nullity which no one alone could do.^ 
 
 § 737. Unconscionable. — A contract may be so unjust ^ or 
 unconscionable that, though made between competent parties 
 and without actual fraud, no court will give it effect. The 
 relief is oftener asked of the equity tribunals, but those of 
 common law sometimes treat it as void.^ Commonly, as ex- 
 
 1 Ante, § 30, 313 ; Mead v. Bnnn, 32 den v. Myers, 20 How. U. S. 506 ; 
 N. Y. 275, 276-278; Central Bank i>. Somes v. Skinner, 16 Mass. 348,358; 
 Copeland, 18 Md. 305; Lenhard w. Len- Neely v. Anderson, 2 Strob, Eq. 262; 
 hard, 59 Wis. 60. Bunch v. Hurst, 3 Des. 273 ; Moore v. 
 
 2 Whelan v. Whelan, 3 Cow. 537 ; Moore, 56 Cal. 89 ; Connelly v. Fisher, 
 CoflFman v. Lookout Bank, 5 Lea, 232 ; 3 Tenn. Ch. 382 ; Craddock v. Cabiness, 
 Marshall v. Billingsly, 7 Ind. 250 ; Wil- 1 Swan, Tenn. 474. 
 
 liams V. Bayley, Law Kep. 1 H. L. 200. ^ Ante, § 45 ; Parkhurst v. Hosford, 
 
 « White V. Cox, 3 Hayw. 79, 83; 21 Fed. Rep. 827; Holland v. Barnes, 
 
 O'Conner v. Kempt, 2 Stew. Ch. 156 ; 53 Ala. 83 ; Howe Machine Co. v. Eo- 
 
 Burroughs v. Richraan, 1 Green, N. J. sine, 87 111. 105 ; Brown v. Pring, 1 Ves. 
 
 233 ; Birdsong v. Birdsong, 2 Head, 289 ; sen. 407 ; McClure v. Lewis, 4 Misso. 
 
 Mansfield v. Watson, 2 Iowa, 111. Ap. 554. 
 
 * AUore v. Jewell, 94 U. S. 506 ; « Ante, § 478. 
 
 Owings's Case, 1 Bland, 370, 377 ; Sel- M Story Eq. §331, and note; 
 
 287 
 
§ 740 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 plained in the last section, a contract will not be pronounced 
 ill on the sole ground that the advantages of the bargain were 
 greatly in favor of one of the parties, but some other element 
 should ordinarily be added.i Thus, — 
 
 § 738. Advantage of Situation. — Where the assignee of an 
 insurance policy could obtain the money only by aid of the 
 assignor's signature, and as compensation for it the latter ex- 
 acted of the former a promise to pay him a quarter of what 
 should be received, the court instead, permitted him to re- 
 cover only what the service of making the signature was 
 fairly worth.^ Again, — 
 
 § 739. Persons in Ezpectancy — are commonly unac- 
 quainted with the real value of their interests, and, if short- 
 sighted, or in want, or trouble, are, like Esau, tempted to 
 sacrifice large future advantages to a little present good. 
 Therefore " a contract with a person for the sale or charge of 
 property in expectancy, whether as reversioner, or remainder- 
 man, or whether as expectant heir, or as expectant devisee 
 or legatee of another, raises a presumption against the pur- 
 chaser, which he must be prepared to rebut in order to sup- 
 port the contract." ^ And it is believed that all cases within 
 the principle of this rule, however differing in form, should be 
 decided upon it. When, therefore, a husband died, leaving 
 property to his widow, and immediately thereon she relin- 
 quished a large amount of it for a small consideration, this 
 contract was by the court cancelled.* Perhaps this case may 
 be deemed also to be one of — 
 
 § 740. Undue Influence. — The doctrine of undue influence, 
 applied more frequently in courts of equity where it has been 
 chiefly developed, is adapted to great varieties of differing 
 facts,* and it is of wide extent. Therefore it does not admit 
 
 Lamplugh i>. Cox, 1 Dick. 411 ; Barnett Thomson i>. Eastwood, 2 Ap. Cas. 215 ; 
 
 V. Spratt, 4 Ire. Eq. 171 ; Esham v. La- Wood v. Abrey, 3 Madd. 417, 424. 
 mar, 10 B. Monr. 43, and cases cited to ^ Leake Con. 427, referring to Ches- 
 
 next section. terfield v. Janssen, 2 Ves. sen. 125 ; 
 
 1 Robertson v. Smith, 11 Texas, 211. White & T. Lead. Cns. 3d ed. 483. 
 
 " Caplice v. Kelley, 27 Kan. 359; < Stewart u. Stewart, 7 J. J. Mar. 183. 
 Kelley v. Caplice, 23 Kan. 474. And * Williams v. Bayley, Law Eep. 1 
 
 see Botkin v. Livingston, 21 Kan. 232; H. L. 200, 212. 
 
 288 
 
CHAP. XXVI.] COMBINING AND OTHER CONSTRAINTS. § 741 
 
 of being more minutely defined than simply to say, that, when 
 the parties sustain to each other any relation implying mu- 
 tual confidence,^ — such, for example, as trustee and cestui 
 que trust,^ attorney and client,^ other agent and princi- 
 pal,* executor or administrator and legatee or heir,^ and 
 various others,® — any bargain by which the one acquires 
 anything from the other, or from a third person while acting 
 for the other, will, as between the parties, be held invalid 
 unless duly explained, and the acquisitions of the employed 
 from a third person will accrue to the benefit of the employer ; 
 or, where the parties do not sustain such mutual relation, a 
 like consequence will follow if habitually the actions of the 
 one are controlled by the other,^ or if in the particular in- 
 stance ^ the one procured the consent of the other to the bar- 
 gain by any undue pressure upon him. It is seen that this is 
 a part of the doctrine, already stated,^ of the mingling of in- 
 fluences inthralling the will. Fully to explore it would not 
 be within the scope of the present work, but something more 
 will be said in other connections, and a further word here 
 concerning it may be desirable. Thus, — 
 
 § 741. One in Another's Power — may, on application to 
 the equity tribunal, have cancelled an inequitable bargain to 
 
 1 Morse v. Royal, 12 Ves. 355, 372 ; Baxter, 538 ; Jones v. Thomas, 2 Y. & 
 Earle v. Chace, 12 R. I. 374 ; Smith v. Col. Ex. 498. 
 
 Sweeney, 69 Ala. 524 ; Mulock v. Mu- * Morgan v. Elford, 4 Ch. D. 352 ; 
 
 lock, 4 Stew. Ch. 594 ; Jamison v. Davis v. Hamlin, 108 HI. 39 ; Tappan 
 
 Glascock, 29 Misso. 191 ; Dent v. Ben- v. Aylsworth, 13 R. I. 582 ; Whelan 
 
 nett, 7 Sim. 539; Cocking v. Pratt, 1 v. McCreary, 64 Ala. 319; Greenfield 
 
 Ves. sen. 400; McCarthy ». Decaix, 2 Savings Bank w. Simons, 133 Mass. 415. 
 
 Russ. & M. 614. 6 Mosely v. Lane, 27 Ala. 62 ; Rice 
 
 2 Rhodes v. Barte, Law Rep. 1 Ch. v. Gordon, 1 1 Beav. 265 ; Williams v. 
 Ap. 252 ; Jewett v. Miller, 6 Selden, Powell, 66 Ala 20. See Clark v. Clark, 
 402 ; Barney v. Saunders, 16 How. TJ. S. 9 Ap. Cas. 733. 
 
 535 ; Johnson v. Johnson, 5 Ala. 90 ; « " It matters not what the relation 
 
 Crutchfield v. Haynes, 14 Ala. 49; is, if confidence is reposed and influence 
 
 Pugh V. Pugh, 9 Ind. 132; Baugh v. obtained." Seevers, C. J. in Leighton w. 
 
 Walker, 77 Va. 99. Orr, 44 Iowa, 679, 689. 
 
 8 Yonge V. Hooper, 73 Ala. 119; ' Leighton v. Orr, supra; Bivins v. 
 
 McPherson v. Watt, 3 Ap. Cas. 254 ; Jarnigan, 3 Baxter, 282. 
 Ryan f. Ashton, 42 Iowa, 365 ; Tyrrell ' Long v. Mulford, 17 Ohio State, 
 
 V. Bank of London, 10 H. L. Cas. 26, 484, 504, 505 ; Smith v. Kay, 7 H. L. 
 
 8 Jur. N. 8. 849 ; Wright v. Walker, 30 Cas. 750. 
 Ark. 44 ; Newman v. Davenport, 9 » Ante, § 733. 
 
 19 289 
 
§ 744 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 which he was entrapped or practically compelled, though 
 there has been neither technical fraud nor technical duress.^ 
 In short, — 
 
 § 742. Any Complications — in which a party may find 
 himself involved, whereby his act of contracting is not that of 
 a free agent, may, at least in equity, be availed of by him to 
 avoid it, as against those by whose procurement it was made.^ 
 And — 
 
 § 743. Third Persons. — Even third persons may exert the 
 influence which wiU work the nullifying result. It was so, 
 for example, where a young woman had been persuaded by 
 an uncle to execute a deed giving lands to two aunts ; the 
 deed was, under the special circumstances, set aside.^ 
 
 § 744. The Doctrine of this Chapter restated. 
 
 The teachings of this chapter emphasize, what is laid down 
 in various other connections, that one entering into a contract 
 is perfectly bound only when his disinthralled will concurs. 
 There were, under the older practice, and there still remain 
 in a part of our States, some technical exceptions to this pro- 
 position available in the common-law courts, wherefrom re- 
 lief would be had in equity. But this sort of obstruction to 
 justice is being gradually removed with the advancing enlight- 
 enment of our jurisprudence. A further repetition of doc- 
 trines does not seem to be here required. 
 
 1 Ante, § 726; Birdsong v. Bird- « Yard v. Yard, 12 C. E. Green, lU. 
 
 Bong, 2 Head, 289 ; Whelan v. Whelan, And see Gibbs v. Linabury, 22 Mich. 
 
 3 Cow. 537 ; Williams v. Bayley, Law 479. • 
 
 Rep. 1 H. L. 200 ; Davenport v. Cole, 2 » Eanken v. Patton, 65 Misso. 378. 
 Halst. 522, 527. 
 
 290 
 
CHAP. XXVII.] UNAUTHORIZED ALTERING. § 747 
 
 CHAPTER XXVII. 
 
 THE ITNAUTHOEIZED ALTERIKG OP THE WRITTEN 
 CONTBACT. 
 
 § 745. The Decisions — and judicial dicta, on the subject of 
 this chapter, are in some degree conflicting and unsatisfactory. 
 Still, on the whole, they are rational and just, sustaining, but 
 not at aU points quite unanimously, the doctrine of reason ; 
 namely, — 
 
 § 746. Doctrine defined. — If, while a written contract re- 
 maius executory, a party unauthorized so alters it as to vary 
 its legal effect to his advantage, whether he meditates a fraud 
 or not, — or, if, with the positive intent to defraud, he makes 
 in it any alteration whatever, — or, if another thus alters it 
 under authority from him, — or, if one to whose custody he 
 simply commits it makes in it a material alteration advan- 
 tageous to him, — then, at the election of the other party, he 
 is estopped from relying upon it in a court of justice. 
 
 § 747. Why ? — Plainly, in reason, after a party has inten- 
 tionally altered the contract, thus abandoning it in its original 
 form, he cannot before the tribunal reclaim what in pais he 
 had cast aside ; and he cannot rely on the new form of 
 words, because to them the other party had not consented.* 
 Though this proposition is a little less broad than the doc- 
 trine above stated, so that on it not quite all the doctrine 
 finds support, the residue rests well on the further reason 
 that, without it, there can be no adequate protection of hon- 
 est parties against the frauds of the dishonest.^ 
 
 1 And see Cobum ». Webb, 56 Ind. yon, C. J. in Master v. Miller, i T. B. 
 96, 100. 320, 329, 330. 
 
 " And see obseryations of Lord Ken- 
 
 291 
 
§ 751 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 § 748. Party's Election. — In reason, on a question not fully 
 illumined by the decisions, when a written contract has been 
 wrongfully altered in the interest of one party, the other 
 should have his election to repudiate it, to maintain it in its 
 old form, or to accept the altered form; but not, with knowl- 
 edge of the facts, to do the one as to some of its stipulations 
 and the other as to others.^ Plainly, on authority as well as 
 reason, he may still rely on the contract as it stood before the 
 alteration, if he will.^ Hence, — 
 
 § 749. Voidable. — Within the distinction of void and void- 
 able already explained,^ though the wrongfully altered con- 
 tract is often in the books termed " void," the more accurate 
 word is the one of variable meaning, " voidable ; " because 
 the instrument is not, to every intent, simply null.* But, 
 practically, if merely the innocent party is sued thereon, hav- 
 ing declined voluntary payment, he will elect to make it void. 
 Then, — 
 
 § 750. Innocent Third Person — (^Mercantile Paper). — 
 Though the contract should have passed into the hands of 
 an innocent assignee for value, and even though it should be 
 mercantile paper, such holder will stand in a position no bet- 
 ter than the original party. On grounds already explained, 
 this will be so if the alteration amounts to a forgery ; * and, 
 because of the general reason on which the doctrine of the 
 nullifying effect of the alteration rests,^ this will be so also in 
 the other ordinary cases. The contract will be practically 
 void.^ 
 
 § 751. Distinction of Material and Immaterial. — In most 
 circumstances, to appear as we proceed, the alteration will 
 impair the contract if material, otherwise not. We have 
 
 1 See Pattinson v. Luckley, Law Rep. * Ante, § 747. 
 
 10 Ex. 330; Turner v. Baker, 30 Ark. ' Master v. Miller, 4 T. E. 320, 2 H. 
 
 186. Bl. 141; Charlton v. Eeed, 61 Iowa, 
 
 'i Hemming v. Treneiy, 9 A. & E. 166; Wade y. Withington, 1 Allen, 561 ; 
 
 926, 934 ; United States ». Spalding, 2 Hewins v. Cargill, 67 Maine, 554; 
 
 Mason, 478 ; Cutts v. United States, 1 Greenfield Sav. Bank v. Stowell, 123 
 
 Gallis. 69. Mass. 196; Scofield v. Ford, 56 Iowa, 
 
 * Ante, § 610 et seq. 370 ; Vance v. Lowther, 1 Ex. D. 
 
 * Ante, § 617. 176. 
 « Ante, § 676. 
 
 292 
 
CHAP. XXTII.] UNAUTHOEIZED ALTERING. § 751 
 
 seen what inaccuracies interpretation will correct.^ Practi- 
 cally, if a man holds a contract wherein there is an inaccuracy 
 of this sort, he should leave it to the correction of interpreta- 
 tion, and not take upon himself the work unauthorized. 
 Still, in point of law, if he does make the correction honestly, 
 it is classed with the harmless immaterial.^ And such is any 
 alteration which in no degree varies the legal effect of the 
 writing.^ But an alteration which does vary it, however mi- 
 nutely (assuming it to be prejudicial to the other party), is 
 material.* In our chapter on interpretation as to the mean- 
 ing of contracts,^ we saw into what a variety of things the 
 interpreter looks. Now, before a judge can say that an alter- 
 ation does or does not change a contract in its legal import, 
 he must interpret it both in its original and its altered forms. 
 Therefore a specification of material alterations will mislead 
 the practitioner more than it will help him, unless he is cau- 
 tious. Adding interest or increasing the rate,® changing the 
 date ^ yet not ordinarily inserting the true date where none 
 appears,^ defacing or adding a seal,^ changing the place '" or 
 time" of payment, detaching a qualifying memorandum,!^ 
 
 1 Ante, § 383. Ind. Si ; Lewis v. Shepherd, 1 Mackey, 
 
 2 Leonard v. Phillips, 39 Mich. 182 ; 46 ; Craighead v. McLoney, 3 Out. Pa. 
 McRaven v. Crisler, 53 Missis. 542; 211; Kennedy v. Moore, 17S. C. 464; 
 Waugh V. Bussell, 1 Marshall, 214, 311, Plyler v. Elliott, 19 S. C. 257. 
 
 5 Taunt. 707. ' Hamilton v. Wood, 70 Ind. 306 ; 
 
 ' Marson o. Petit, 1 Camp. 82, note ; Brown v. Straw, 6 Neb. 536. 
 
 Sharpe t7. Orme, 61 Ala. 263 ; Kline v. « Ante, §114, 178, 543; Keane v. 
 
 Raymond, 70 Ind. 271 ; Burlingame v. Smallbone,' 17 C. B. 179; Lemay v. 
 
 Brewster, 79 III. 515 ; Crawford v. Dex- Johnson, 35 Ark. 225. 
 
 ter, 5 Saw. 201 ; Rowley v. Jewett, 56 ^ Evans v. Williamson, ,79 N. C. 86 ; 
 
 Iowa, 492. Vaughan v. Fowler, 14 S. C. 355 ; Da- 
 
 * Cases cited to the subsequent notes vidson v. Cooper, 13 M. & W. 343. 
 
 to this section ; also Laub v. Paine, 46 i" Adair v. Egland, 58 Iowa, 314 ; 
 
 Iowa, 550; Kelly v. Trumble, 74 111. Cowie v. Halsall, 4 B. & Aid. 197, 3 
 
 428 ; Osborne v. Van Houten, 45 Mich. Stark, 36. 
 
 444 ; Robinson v. Reed, 46 Iowa, 219 ; ^^ Alderson v. Langdale, 3 B. & Ad. 
 
 Powell w. nivett, 15 East, 29; White «. 660. See Hayes v. Wells, 34 Md. 
 
 Johns, 24 Minn. 387 ; Knill v. Williams, 512. 
 
 10 East, 431. 12 Scofleld v. Ford, 56 Iowa, 370; 
 
 5 Ante, § 365. Gerrish v. Glines, 56 N. H. 9 ; Palmer 
 
 « Harsh v. Klepper, 28 Ohio State, v. Largent, 5 Neb. 223 ; Davis v. Henry, 
 
 200 ; Long v. Mason, 84 N. C. 15 ; Da- 13 Neb. 497. See Cambridge Sav. Bank 
 
 vis V. Henry, 13 Neb. 497 ; Hert v. Oeh- v. Hyde, 131 Mass. 77. 
 ler, 80 Ind. 83 ; Bowman v. Mitchell, 79 
 
 293 
 
§ 753 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 commonly but not in all circumstances adding or releasing 
 parties,^ adding or altering words of negotiability ,2 — these 
 are severally instances of material alterations. 
 
 § 752. Reformable in Equity. — Where the contract fails to 
 express what both parties meant, so that, though mere inter- 
 pretation will not correct it, equity will reform it,^ the ques- 
 tion whether or not an honest alteration by one of the parties 
 without the other's consent, making it what equity would 
 decree it to be, will vitiate it, is not absolutely clear. Evi- 
 dently that is a dangerous liberty which permits one to exer- 
 cise this jurisdiction in his own case, without notice to the 
 other party, and in pais. Yet there seems to be authority 
 for it.* 
 
 § 753. Alteration by Stranger — (By Accident). — It has 
 been said that " a party who has the custody of an instru- 
 ment made for his benefit is bound to preserve it in its origi- 
 nal state." ^ From which proposition the English courts 
 derive the doctrine, that if, while the instrument is in the 
 custody of a party, a stranger makes in it a material (not ex- 
 tending to an immaterial) alteration, the contract is thereby 
 nullified.^ But neither in England nor in this country does 
 
 1 John V. Hatfield, 84 Ind. 75 ; Al- tied. The only questions in such cases 
 drich V. Smith, 37 Mich. 468 ; Briscoe v. are, Does the alteration actually con- 
 Reynolds, 51 Iowa, 673; NichoUon v. form to the true intention of both parties 
 Combs, 90 Ind. 515 ; Dickerman v. Mi- to the instrument? and was it honestly 
 ner, 43 Iowa, 508. made to correct the mistake, and with 
 
 2 Needles b. Shaffer, 60 Iowa, 65; no intent of procuring an advantage? 
 Hollis V. Vandergrift, 5 Houst. 521. Where these questions are answered in 
 
 8 Ante, § 707-713. the afiarniative, the law will presume or 
 
 * In McKaven v. Crisler, 53 Missis, dispense with the assent of the maker 
 
 542, dissenting from Miller v. Gilleland, of the note to its alteration." Eeferring 
 
 7 Harris, Pa. 119, the court, speaking by to 2 Pars. Bills, 569, 570; Chit. Bills, 
 
 Chalmers, J. (p. 546) said : "But even 184, 185 ; Bayley Bills, 90 ; Kershaw v. 
 
 if it be deemed a material alteration, we Cox, 3 Esp. 246 ; Knill v. Williamp, 10 
 
 think it is equally clear that it did not Bast, 431 ; Brntt v. Picard, Ryan & 
 
 vitiate the note. It was but the correc- Moody, N. P. 37; Clute v. Small, 17 
 
 tion of a mistake so as to conform the Wend. 237 ; Hervey v. Harvey, 15 
 
 note to the intention of both the parties Maine, 357 ; Bowers i;. Jewell, '2 N. H. 
 
 to it, and it was made in such manner as 543 ; Boyd v. Brotherson, 10 Wend, 
 
 clearly to negative any fraud upon the 93. 
 
 part of the payee, or any intention to * Lord Denman, C J. in Davidson 
 
 obtain an advantage. That under these v. Cooper, 13 M. & W. 343, 352. 
 circumstances alterations in notes will ^ Pigot's Case, 1 1 Co. 26 6 ; David- 
 
 not vitiate them, we think, is well set- son v. Cooper, supra ; Burchfield v. 
 294 
 
CHAP. XXVII.] rrNAUTHOEIZED ALTERING. § 755 
 
 an alteration purely accidental produce such effect.^ In rea- 
 son, an alteration by a stranger is, as to the party who is 
 keeping it carefully and not negligently in his custody, acci- 
 dental. And it is the better doctrine, abundantly established 
 with us, that, in the absence of fraud or negligence in the 
 party, one not a party, a custodian, or otherwise connected 
 with a wiitten contract, does not impair any rights under it 
 if, without authority, he alters or destroys it, provided its 
 original contents can be proved.^ But — 
 
 § 754. By Custodian. — The custodian of an instrument 
 stands, in a measure, in the place of him for whose benefit he 
 holds it ; rendering an alteration by him, though without 
 specific evidence of authority, in a general way the same as 
 if done by the party's own hand.^ Still it is very properly 
 held that one merely intrusted with an instrument is not 
 therefore authorized to alter it,* and there is some doubt as 
 to the extent to which our American tribunals will carry out 
 the doctrine just stated.^ One case holds that a trustee's 
 alteration does not take away the rights of a cestui que trust.^ 
 
 § 755. By Party. — An alteration by the party himself, 
 whether acting in person or through an authorized agent, 
 if not material,'^ — that is, if it does not vary the interpreta- 
 tion to the prejudice of the other party,* — and if done hon- 
 
 Moore, 3 Ellis & B. 683, 687 ; 2 Chit. FuUerton v. Sturges, 4 Ohio State, 
 
 Con. nth Am. ed. 1161. 529. 
 
 1 Leake Con. 807 (referring to Shep. " Pattinson v. Luckley, Law Eep. 10 
 Touch, by Prest. 69 ; ArgoU B.Cheney, Ex. 330, 333; Morrison v. Welty, 18 
 Palmer, 402, also cited in Bolton v. Car- Md. 169 ; Vance v. Lowther, 1 Ex. D. 
 lisle, 2 H. Bl. 259, 262) ; Van Eiswick 176. See Bigelow v. Stilphen, 35 Vt. 
 V. Goodhue, 50 Md. 57; Hunt v. Gray, 521. 
 
 6 Vroom, 227. 4 Cobum v. Webb, 56 Ind. 96 ; Le- 
 
 2 Condict V. Flower, 106 Bl. 105; may v. Williams, 32 Ark. 166. 
 Robertson v. Hay, 10 Norris, Pa. 242 ; ^ Compare Nickerson v. Swett, 135 
 Evans v. Williamson, 79 K C. 86 ; Mass. 514. 
 
 Henfree v. Bromley, 6 East, 309, 311 ; « Flinn v. Brown, 6 S. C. 209, 214. 
 Piersol v. Grimes, 30 Ind. 129 ; Davis v. ' Ante, § 751. 
 Carlisle, 6 Ala. 707 ; Croft v. White, 36 ' Ogle v. Graham, 2 Pa. 132 ; Mont- 
 Missis. 455 ; Medlin v. Platte, 8 Misso. gomery Railroad v. Hurst, 9 Ala. 513 ; 
 235 ; Lubbering v. Kohlbrecher, 22 Broughton v. West, 8 6a. 248 ; Hunt- 
 Misso. 596; Nichols v. Johnson, 10 ington w. Finch, 3 Ohio State, 445, 448 ; 
 Conn. 192; Bigelow u. Stilphen, 35 Vt. Brownell v. Winnie, 29 N. Y. 400; 
 521 ; Terry v. Hazlewood, 1 Duvall, Union Bank v. Cook, 2 Cranch C. C. 
 104; Rees ». Overbaugh, 6 Cow. 746; 218. It seems, however, to be the doc- 
 
 295 
 
§756 
 
 IN GENERAL WITH ILLUSTRATIONS. 
 
 [book I. 
 
 estly and in good faith, does not impair the contract.^ But 
 where, in making an immaterial alteration, he means a fraud, 
 yet mistaking the law does not accomplish his purpose, the 
 other party will, in reason, be discharged ; and this conclu- 
 sion is believed to be sufficiently deducible from the adjudi- 
 cations, though they are not so distinct to this point as to 
 some others.^ An alteration which, to any degree, varies 
 the legal effect of the instrument ^ to the prejudice of the 
 other party, releases the latter from it though no nctual fraud 
 is meditated ; the alteration is a fraud in law, where not in 
 fact.* 
 
 § 756. Restoring after Alteration. — If an alteration has been 
 made by accident,^ with no intermingling of evil purpose, it 
 may be erased, or otherwise the instrument may be restored 
 to its original condition, and it wiU then have its original 
 effect.^ This is so especially where the instrument is nego- 
 tiable, and is in the hands of an innocent holder.''' 
 
 trine of some courts, that a material 
 alteration, though not prejudicial to the 
 other party, discharges him. Bowers v. 
 Briggs, 20 Ind. 139; Chad wick v. East> 
 man, 53 Maine, 12; Mollett v. Wacker- 
 barth, 5 C. B. 181. 
 
 1 Hunt V. Adams, 6 Mass. 519 ; The 
 State V. Cilley, cited 1 N. H. 97; 
 Khoades v. Castner, 12 Allen, 130; 
 Park V. Glover, 23 Texas, 469 ; Nichols 
 V. Johnson, 10 Conn. 192 ; Peqnawket 
 Bridge v. Mathes, 8 N. H. 139 ; Burn- 
 ham V. Ayer, 35 N. H. 351 ; Langdon v. 
 Paul, 20 Vt. 217 ; Reed v. Kemp, 16 111. 
 445 ; Dunn v. Clements, 7 Jones, N. C. 
 58 ; The State v. Dean, 40 Misso. 464 ; 
 Shelton v. Deering, 10 B. Monr. 405; 
 Aldous !'. Comwell, Law Rep. 3 Q. B. 
 573; Major v. Hansen, 2 Bis. 195; 
 Huntington v. Pinch, 3 Ohio State, 445. 
 On this point Pigot's Case, 1 1 Co. 26 6 
 is the other way. 
 
 2 1 Greenl. Ev. § 568 ; Montgomery 
 Railroad v. Hurst, 9 Ala. 513 ; Adams 
 V. Prye, 3 Met. 103 ; Nunnery v. Cotton, 
 1 Hawks, 222 ; Lewis i'. Payn, 8 Cow. 
 71; Wright v. "Wright, 2 Halst. 175; 
 Malin v Malin, 15 Johns. 293. Contra, 
 
 296 
 
 Moye v. Herndon, 30 Missis. 110. Com- 
 pare this doctrine with Pigot's Case, 
 supra. 
 
 s Ante, § 751. 
 
 < Porter v. Doby, 2 Rich. Eq. 49; 
 Washington Savings Bank ;;. Ecky, 51 
 Misso. 272 ; Boston v. Benson, 12 Cush. 
 61 ; Richmond Manuf. Co. v. Davis, 7 
 Blackf. 412; Mollett ». Wackerharth, 5 
 C. B. 181 ; Wheelock v. Freeman, 13 
 Pick. 165, 168 ; Stoddard v. Penniman, 
 108 Mass. 366; Schwalm v. Mclntyre; 
 17 Wis. 232 ; Smith v. Mace, 44 N. H. 
 553 ; Hirschman v. Budd, Law Rep. 8 
 Ex. 171 ; Hirschfeld v. Smith, Law Kep. 
 1 C. P. 340, 353 ; Pay v. Smith, 1 Allen, 
 477. 
 
 5 Ante, § 753. 
 
 6 Rogers v. Shaw, 59 Cal. 260; 
 Horst V. Wagner, 43 Iowa, 373. 
 
 T Horst II. Wagner, supra; Shepard 
 V. Whetstone, 51 Iowa, 457, Adams, J. 
 observing : " That there is upon grounds 
 of public policy a valid objection to en- 
 forcing, under some circumstances, a 
 contract which has been altered, not- 
 withstanding its restoration, seems to be 
 well settled. This is so where the alter- 
 
CHAP. XXVII.] UNAUTHORIZED ALTERING. § 757 
 
 § 757. Rights after Alteration — (Destruction). — It is but 
 repetition to say that one can recover nothing on a contract 
 which he has materially altered,^ nor can he maintain any 
 affirmative defence thereon. ^ The decisions are not quite 
 distinct and uniform as to the effect on a collateral demand 
 for substantially the same thing. It is generally held that, 
 where the owner and payee of a promissory note has volun- 
 tarily destroyed it, he can no more recover upon the consid- 
 eration for which it was given than upon the note itself.^ 
 But some courts have permitted the party in this class of 
 cases to proceed for the consideration, or for the collateral 
 matter, especially where the destruction or alteration was 
 unaccompanied by fraud.* In reason, aside from the question 
 of fraud, if one is sued on any form of indebtedness, and it 
 appears in evidence that a promissory note or other contract 
 was given to secure or pay the debt, such contract must be 
 surrendered to be cancelled, or its non-production accounted 
 for, before judgment can be rendered for the plaintiff. And 
 it will not satisfy this rule to show a contract which the 
 plaintiff has intentionally so altered as to nullify it, or inten- 
 tionally destroyed. 
 
 atioii was made with intent to defraud, ^ Ante, § 755 ; Taylor v. Taylor, 12 
 
 and the instrument remains in the hands Lea, 714 ; Schnewind v. Racket, 54 Ind. 
 
 of the person making the alteration. 248. 
 
 Perhaps, indeed, it should be so held in ^ Eobbins v. Magee, 76 Ind. 381. 
 the absence of any intent to defraud. ' Booth v. Smith, 3 Woods, 19 (re- 
 Hall u.McHenry, 19 Iowa, 521,523. See, ferring to Angel v. Felton, 8 Johns, 
 however, 2 Pars. Notes and Bills, 270. 149; Vanauken v. Hornbeck, 2 Green, 
 But conceding that the importance of N. J. 178 ; Fisher u. Mershon, 3 Bibb, 
 discouraging the alteration of instru- 527 ; Blade v. Noland, 1 2 Wend. 1 73 ; 
 ments is such that a court is justified in Joannes v. Bennett, 5 Allen, 169, 173 ; 
 declaring invalid an instrument which Broadwell v. Stiles, 3 Halst. 58 ; Nagel 
 has been altered, and which remains in u. Mignot, 7 Mart. La. 657); Martendale 
 the hands of the person who made the v. FoUet, 1 N. H. 95 ; McVey v. Ely, 5 
 alteration, notwithstanding the restora- Lea, 438. The same was adjudged also 
 tion of the instrument, it is evident that in a case where the destruction was 
 it should not be held invalid in the fraudulent McDonald v. Jackson, 56 
 hands of an innocent purchaser for Iowa, 643. And see Tate v. Fletcher, 
 value. The punishment of an innocent 77 Ind. 102. 
 
 person for an act done by another has * Clough v. Seay, 49 Iowa, 111 ; 
 
 no tendency to subserve the public in- Eckert v. Pickel, 59 Iowa, 545 ; Good- 
 
 terest or promote the public security." enow v. Curtis, 33 Mich. 505 ; Atkinson 
 
 p. 458. See ante, § 750 ; Plyler v. El- v. Hawdon, 2 A. & E. 628. 
 liott, 19 S. C. 257. 
 
 297 
 
§ 761 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 § 758. Executed. — If, before alteration, the contract has 
 had its effect and is ended,^ — as, if it is a deed of lands, de- 
 livered, and the title vested in the grantee, — an alteration, 
 however fraudulent, does not undo what has thus been done.^ 
 But no executory part can be enforced.^ 
 
 § 759. All 'Written Contracts, — whether simple or under 
 seal, on whatever subjects, are equally within the doctrines 
 of this chapter. Contrary intimations, in some older cases, 
 are not sound in principle, and they are now discarded.* 
 
 § 760. The Evidence — is practically of special consequence 
 in these cases. It is not within the scope of the present 
 work. Unhappily the wilderness of decisions relating thereto 
 is a tangle of discord, uncertainty, and doubt.^ 
 
 § 761. The Doctrine of this Chapter restated. 
 
 One in possession of a written contract is required both by 
 duty and common prudence carefully to preserve it. If, 
 while a party is endeavoring to discharge this duty, a tliird 
 person gains unlawful access to the writing and alters or 
 destroys it, — or, if with innocent purpose the party makes 
 himself some alteration therein not prejudicial to the other 
 party or varying its meaning, — his rights under it will not 
 thereby be impaired. But if he commits its custody to one 
 who materially alters it in his interest, — or, if he authorizes 
 another so to alter it, and it is done, — or, if he does it him- 
 self, — he forfeits, by this bad faith or want of due care, 
 whatever the contract gave him. Yet if it has already taken 
 effect, and his rights have become vested, no alteration of the 
 defunct contract can revest them in the other party. 
 
 1 Kansier v. Vanorsdol, .50 Iowa, 130. Wallace v. Harmstad, 3 Harris, Pa. 462 ; 
 
 2 Collier «. Jacoby, 9 Cow. 125; Waring ti. Smyth, 2 Barb. Ch. 119. 
 Kendall w. Kendall, 12 Allen, 92; Speer *■ Aldous v. Comwell, Law Kep. 3 
 V. Speer, 7 Ind. 178 ; Chessman v. Whit- Q. B. 573. 
 
 temore, 23 Pick. 231 ; Lewis v. Payn, 8 ^ Consult, besides the digests, 1 
 Cow. 71 ; GUlespie v. Reed, 3 McLean, Greenl. Et. § 564 ; 2 Pars. Con. 721, 
 377. See Wallace v. Harmstad, 8 722; 2 Chit. Con. 11th Am. ed. 1163, 
 Wright, Pa. 492 ; Carithers v. Lay, 51 and a very full note in this edition, re- 
 Ala. 390. viewing at large both the English and 
 ' Arrison o. Hannstead, 2 Barr, 191 ; American cases. 
 
 298 
 
CHAP. XXVIII.] ALTERING BY CONSENT. § 765 
 
 CHAPTER XXVIII. 
 
 ALTERING THE CONTKACT BY MUTUAL CONSENT. 
 
 § 762. The Doctrine — of this chapter is, that, as between 
 parties, not speaking of rights which third persons may 
 have acquired, those who have made a contract may mutually 
 alter it at pleasure. But, in doing this, they must conform 
 to any technical rules which were required for its original 
 construction. 
 
 § 763. Before Signing and Delivery. — Alterations made 
 in the draft of a contract, before it becomes complete by 
 delivery, stand on independent grounds, quite apart from the 
 doctrines both of this chapter and of the last. Ordinarily 
 they are as completely without effect as the erasure and sub- 
 stitution of a word by the scrivener while setting down the 
 proposed terms.^ If the unexecuted instrument has been read 
 by a party, then altered before he signs it, it may or not, 
 according to the circumstances, be invalid on the already 
 considered ground ^ of fraud.^ 
 
 § 764. Simple Contract, by Writing. — After parties have 
 executed a written contract not under seal, they may mutually 
 change the words and sentences as they please ; * thereby they 
 create a new contract,^ consisting of the old and new parts 
 blended. But — 
 
 § 765. Party not consenting. — A surety ,« or a third party ,'^ 
 
 1 Sherrington v. Jermyn, 3 Car. & P. 5 Ante, § 164, 174 ; Vicary v. Moore, 
 374 ; Webber v. Haddocks, 3 Camp. 1 ; 2 Watts, 451 ; Dana v. Hancock, 30 Vt. 
 HoUis V. Vandergrift, 5 Houst. 521 ; 616 ; Briggs v. Vermont Central Rail- 
 Jacob V. Hart, 6 M. & S. 142, 2 Stark, road, 31 Vt. 211 ; Lawall v. Rader, 12 
 45 ; Stevens v. Lloyd, Moody & M. 292. Harris, Pa. 283. 
 
 2 Ante, § 645-649. * Gardiner v. Harback, 21 111. 129 ; 
 « Linington v. Strong, 107 111. 295. Ryan v. Parker, 1 Ire. Eq. 89; Darwin 
 * Wilson V. Henderson, 9 Sm. & M. v. Rippey, 63 N. C. 318. 
 
 373 ; People v. Call, 1 Denio, 120. ^ Crockett v. Thomason, 5 Sneed, 
 
 299 
 
§ 768 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 not consulted about the alteration or not consenting, is there- 
 by discharged. It is good as to those who do consent.^ 
 
 § 766. Oral Altering of Simple Written. — Since oral con- 
 tracts and written ones not under seal are of equal grade,^ 
 parties may orally alter their written agreement, rendering it 
 thereby in legal contemplation oral ; ^ except in cases where, 
 by a statute or some rule of the unwritten law, writing is 
 essential to its validity.* Even — 
 
 § 767. Clause forbidding. — Though the written contract 
 has a clause forbidding such oral alteration, and declaring 
 that no change in it shall be valid unless in writing, such 
 provision does not become a part of the law of the land ; it 
 is like any other agreement which is superseded by a new one. 
 So that, in spite of it, an oral alteration may be validly made.^ 
 
 § 768. Consideration — (New Contract). — As the altered 
 contract becomes in contemplation of law a new one,^ there 
 must be for it a consideration the same as for any other. But 
 the transaction embraces also the cancelling of the old con- 
 tract ; and such cancelling, assuming the old to have been 
 valid, is an adequate consideration for the new.' Still it is 
 
 Tenn. 342; Goodman v. Eastman, 4 33 Mich. 143; Smith u. Gngerty, 4 Barb. 
 
 N. H. 455; King t'. Hunt, 13 Misso. 97 ; 614; Ford v. United States, 17 Ct. of 
 
 Fay V. Smith, 1 Allen, 477 ; Prettymau CI. 60 ; Carrugi v. Atlantic, &c. Ins. 
 
 V. Goodrich, 23 111. 330. Co. 40 Ga. 135. Contra, White v. San 
 
 1 Warring v. Williams, 8 Pick. 322; Rafael, etc. Railroad, 50 Cal. 417. See 
 Broughton v. Fuller, 9 Vt. 373 ; The Barker v. Troy and Rutland Railroad, 
 State V. Van Pelt, 1 Ind. 304 ; Smith v. 27 Vt. 766 ; Illinois Deaf and Dumb 
 Weld, 2 Barr, 54. And see Harper v. Inst. v. Piatt, 5 Bradw. 567. 
 
 The State, 7 Blackf. 61 ; Briggs U.Glenn, ^ Ante, § 764 and places there re- 
 
 7 Misso. 572. ferred to. 
 
 2 Ante, § 27, 158. 7 Ante, § 68; Weld v. Nichols, 17 
 5 Ante, § 133, 164. Pick. 538, 543; Munroe v. Perkins, 9 
 * Westchester Fire Ins. Co. v. Earle, Pick. 298, 305 ; Scott v. McKinney, 98 
 
 33 Mich. 143 ; Cartright v. Clopton, 25 Mass. 344, 348 ; Woodward i-. Miles, 4 
 
 Ga. 85 ; Langford v. Cummings, 4 Ala. Fost. N. H. 289 ; Connelly v. Devoe, 37 
 
 46; Miles v. Roberts, 34 N. H. 245; Conn. 570; Montgomery ». Morris, 32 
 
 Richardson v. Cooper, 25 Maine, 450; Ga. 173; Taylor i\ Meek, 4 Blaclcf 388 ; 
 
 Grafton Bank v. Woodward, 5 N. H. Perry v. Buckman, 33 Vt 7 ; Hildreth 
 
 99; Frost I). Everett, 5 Cow. 497; Keat- v. Pinkerton Academy, 9 Fost. N. H. 
 
 ing V. Price, 1 Johns. Cas. 22 ; Rhodes 227 ; Doyle v. Dixon, 97 Mass. 208 ; 
 
 II. Thomas, 2 Ind. 638 ; Brown «. Ever- Calhoun v. Calhoun, 37 Missis. 668; 
 
 hard, 52 Wis. 205. Spann v. Baltzell, 1 Fla. 301. In 
 
 5 McFadden v. O'Donnell, 18 Cal. Thurston r. Lndwig, 6 Ohio State, 1, the 
 
 160 ; Westchester Fire Ins. Co, v. Earle, reasoning is a little unsatisfactory. 
 
 300 
 
CHAP. XXVin.] ALTERING BY CONSENT. § 771 
 
 otherwise if the old was invalid.^ A mere promise by the 
 one party, with no relinquishment of anything by the other, 
 is void for the want of consideration.^ And there may be 
 cases wherein, as the law views the transaction, a nominal 
 concurrence of the parties amounts only to a promise by the 
 one with nothing surrendered by the other ; then, of course, 
 the promise, to be binding, must be supported by a fresh 
 consideration.^ 
 
 § 769. Where 'Writing Indispensable. — From the doctrine 
 that the altered contract is in law a new one, it further re- 
 sults that, in cases where writing is essential to its validity, 
 the alteration must be in writing, or either it will be ineffect- 
 ual or it will destroy the contract altogether.* Thus, — 
 
 § 770. Promissory Note. — By the law-merchant, an oral 
 promissory note is impossible ; it must be in writing.^ Con- 
 sequently an oral agreement varying such a note is repugnant 
 to the whole transaction, and it will be rejected as void.® 
 Again, — 
 
 § 771. statute of Frauds. — Agreements which, to be valid, 
 must by the Statute of Frauds be in writing, cannot be orally 
 varied. The admission of the evidence would introduce a 
 repugnancy, therefore it must be rejected ; ' or, otherwise 
 expressed, the oral is void, by reason of which it cannot an- 
 nul what is valid.8 Still there are cases in which the intent 
 to depart from the writing by substituting an oral provision is 
 
 1 Louisville Bank v. Young, 37 Misso. Smith, 4 Vt. 139 ; Clifton v. Litchfield, 
 398 ; Holden v. Cosgrove, 12 Gray, 216 ; 106 Mass. 34. 
 
 Crosby v. Wood, 2 Selden, 369 ; Van * Ante, § 130, 133, 136, 164, 174,391- 
 
 Allen V. Jones, 10 Bosw. 369. 396 ; Hill ». Blake, 97 N. Y. 216. 
 
 2 Ante, § 77 ; Robbins v. Potter, 98 ^ Ante, § 152. 
 
 Mass. 532; Richardson ». Williams, 49 ^ Adler w. Friedman, 16 Cal. 138. 
 
 Maine, 558 ; Styron v. Bell, 8 Jones, The proposition of the text is obvious, 
 
 N. C. 222 ; Bixler v. Ream, 3 Pa. 282. and does not require the support of au- 
 
 And see Collins v. Baumgardner, 2 thority. If it did, I should not deem 
 
 Smith, Fa. 461. this case adequate; for, neither by neces- 
 
 ' McDugald V. McFadgin, 6 Jones, sary implication, nor by any distinct 
 
 N. C. 89 ; Peelman v. Peelman, 4 Ind. utterance, does it exactly cover the prop- 
 
 612; Colcock v. Louisville, &c. Railroad, osition. 
 
 1 Strob. 329 ; Clark v. Small, 6 Yerg. ' Giraud v. Richmond, 2 C. B. 835 ; 
 
 418 ; Whitson v. Fowlkes, 1 Head, 533 ; Moore v. Campbell, 10 Exch. 323. 
 Hawley v. Farrar, 1 Vt. 420 ; Barlow v. » Noble v. Ward, Law Bep. 2 Ex, 
 
 135, 138. 
 
 301 
 
§ 774 IN GENERAL WITH ILLUSTRATIONS. [BOOK I, 
 
 SO evident as to render the rejection of the latter impossible ; 
 and then, the written contract being gone, the whole will 
 come under the condemnation of the statute.^ On the other 
 hand, if the oral variation stops at a point which leaves a 
 sufl&cient memorandum in writing to satisfy the statute, it 
 may have effect, the same as though no writing was originally 
 necessary. On this ground, some courts hold that the time 
 of performance may be orally varied,^ while others maintain 
 the contrary.^ 
 
 § 772. Specialties: — 
 
 In General. — In an early chapter, the outlines of the law 
 of specialties appear.* The adjudications on the subject of 
 altering this form of contract are in confusion; but, if we 
 look into the principles which should govern them, we shall 
 find the results to be as foUows : — 
 
 § 773. 'Where Sealing not Essential. — If the particular con- 
 tract, though under seal, is not required by the law to be so, 
 there is no objection to varying it without seal, thus reducing 
 the whole to a simple contract.^ But the presumption wUl 
 be violent that this is not meant, and the change will be held 
 to take place only where the intent is clear.^ And never, 
 where a sealed instrument is altered without seal, will it re- 
 main a specialty .'- 
 
 § 774. Where Sealing Essential. — From the reasoning in 
 the last section, in other parts of this chapter, and in preced- 
 ing chapters,* the conclusion becomes inevitable, that, in all 
 cases where the instrument if not sealed would be ineffectual 
 for its purpose, an interpretation giving force to an unsealed 
 alteration, thereby destroying the contract contrary to the 
 evident intent of the parties, should if possible be avoided. 
 Therefore, except where plainly impossible, the attempted 
 alteration should be adjudged null. 
 
 1 Sanderson v. Graves, Law Rep. 10 * Ante, § 133. 
 
 Ex. 234. 8 See Burnes v. Allen, 9 Ire. 370, 
 
 2 Steams v. Hall, 9 Cush. 31 . ' Vaughn v. Ferris, 2 Watts & S. 46 ; 
 « Stead V. Dawber, 10 A. & B. 57 ; Eddy v. Graves, 23 Wend. 82 ; Bobbins 
 
 Noble V. Ward, Law Eep. 1 Ex. 117, 2 v. Ayres, 10 Misso. 538. 
 Ex. 135. 8 Ante, § 129-138, 391-396. 
 
 * Ante, § 103-139. 
 302 
 
CHAP. XXVIII.] ALTERING BY CONSENT. § 776 
 
 § 775. How Validly Altered. — The foregoing expositions are 
 for cases where the matter introduced by way of alteration can- 
 not be deemed so incorporated with the old as to be also under, 
 or governed by, its seal. But, where due formalities are ob-, 
 served, a specialty can be mutually altered by the parties as 
 freely as a simple contract. There are differences of opinion, 
 with some confusion in the adjudications, as to what the for- 
 malities must be. All admit that if, while the delivered con- 
 tract is in its executory condition, the parties are together, and 
 thereupon the instrument is handed back to him who sealed it, 
 and then the latter alters it by consent of the other, or assents 
 to an alteration made by a third person in his presence, and re- 
 delivers it, the transaction will be valid. And it appears to be 
 the doctrine of some of the tribunals that nothing less will 
 suffice.^ Nor, since an authority to an agent to seal an instru- 
 ment must itself be under seal,^ so that there can be no origi- 
 nal entering into a sealed contract except where the parties 
 act in person, or, if one is absent, where the agent's power is 
 by writing sealed, can, in reason, much less suffice. Yet some 
 of the cases, particularly the American, appear to concede the 
 validity of proceedings less strict. It would be difficult to 
 derive from them any exact rule.^ 
 
 § 776. The Doctrine of this Chapter restated. 
 
 Any contract may be varied by the parties before perform- 
 ance I for the power from the law to enter into the bargain 
 equally authorizes them to abrogate or modify it. But where 
 only in some special form, such as writing, or a writing sealed, 
 
 1 Zouch V. Claye, 2 Lev. 35 ; VS^eeks 37 ; Thompson v. Williams, 1 Fla. 56; 
 V. Maillardet, 14 East, 568; Markham Mclntyre w. Park, 11 Gray, 102; Cleaton 
 V. Gonaston, Cro. Eliz. 626, 9 East, 354, v. Chambliss, 6 Rand. 86 ; Ex parte 
 note; Matson v. Booth, 5 M. & S. 223, Decker, 6 Oow. 60; Speake v. United 
 226, 227 ; Smith v. Crocker, 5 Mass. States, 9 Cranch, 28 ; Boardman v. Wil- 
 538; Lewis v. Bingham, 4 B. & Aid. liams, 1 Stew. 517; WooUey v. Con- 
 672. stant, 4 Johns. 54 ; Ex parte Kerwin, 8 
 
 2 Post, § 1045. Cow. 118. And see, as to filling blanks, 
 * See, as representing various Ameri- post, § 1165-1176. 
 
 can views, Gotten v. Williams, 1 Fla. 
 
 303 
 
§ 776 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 is the particular sort of contract valid, the alteration to be 
 effectual must be made in a way to preserve the form. Out 
 of this plain proposition, and out of attempts of parties to 
 reagree in disregard of it, grow the difiBculties connected 
 with the subject of this chapter. They do not require to 
 be repeated. 
 
 304 
 
CHAP. XXIX.] ELECTION AND WAITER. § 780 
 
 CHAPTER XXIX. 
 
 ELECTION AND WAIVER. 
 
 § 777, 778. Introduction. 
 
 779-788. Election. 
 
 789-807. "Waiver. 
 
 808. Doctrine of Chapter restated. 
 
 § 777. How the Subject. — The law, in all its departments, 
 is constantly presenting to the choice of people its different 
 paths, so that a person who has elected one has waived an- 
 other. The doctrines of election and waiver, therefore, be- 
 long together. We shall here contemplate so much only of 
 them as pertains to contracts. 
 
 § 778. How in this Chapter and how divided. — It is pro- 
 posed to present here only the controlling principles, with 
 such illustrations as wiU make them plain. Further details 
 appear in connection with the several topics. We shall con- 
 sider, I. Election ; II. Waiver. 
 
 I. Election. 
 
 § 779. In what Cases. — The doctrine of election applies 
 wherever there is a plurality of rights in the alternative.^ 
 
 § 780. Voluntary or not — (Equity). — Commonly the elec- 
 tion is voluntary. But equity has a jurisdiction to compel it 
 in some cases; as, under wills.^ Or, where there are two 
 funds, on one of which a creditor has a claim for security and 
 another creditor has a like claim on both, the court will in 
 
 1 Sigmon v. Hawn, 87 N. C. 450; ^ i Story Eq. § 1076 et seq. 
 
 Smith u. Sanborn, 11 Johns. 59; Melick 
 D. Darling, 11 Ohio, 343. 
 
 20 305 
 
§ 783 IN GENEEAL WITH ILLUSTRATIONS. [BOOK I. 
 
 proper circumstances restrict the latter to the fund not within 
 reach of the former,^ — a doctrine sometimes deemed applica- 
 ble only to sureties.^ 
 
 § 781. Defined. — Election is the right of choice between 
 two or more steps or things, by a person not entitled to all ; 
 or, it is the choice itself. For example, — 
 
 § 782. Illustrations. — If on a sale of horses they are war- 
 ranted to be what they are not, the purchaser on learning of 
 the deception may waive the warranty and pay for them, or 
 return them and rescind the bargain, as he chooses.^ One 
 whose agent has done an unauthorized act has his choice to 
 affirm or repudiate it.* If one party refuses to abide by his 
 contract, the other can ordinarily sue for the breach, or treat 
 it as rescinded, at his election.^ On the breach of a covenant 
 secured by a penalty, the party injured maj"-, as he prefers, 
 bring his suit on the covenant, or for the penalty.^ And 
 we have seen that, in certain cases, an injured person may 
 choose between suing for a tort and waiving it and proceeding 
 as on a contract.'^ These illustrations might be multiplied 
 indefinitelj'.^ 
 
 § 783. How elect — (Knowledge). — Knowledge of the 
 facts is indispensable to a valid election.^ Beyond this, there 
 is believed to be no rule possible more definite than that 
 there must be some distinct language, act, or omission which, 
 illumined by the special circumstances, plainly indicates the 
 party's choice of the one alternative and waiver of the other.^" 
 
 1 Davis V. Walker, 51 Missis. 659. gold, 20 Kan. 90 ; Fanson w.Linsley, 20 
 
 2 Prout V. Lomer, 79 111. 331. The Kan. 235 ; National Oil Ref. Co. v. 
 ordinary rule is, that one who lias two Bush, 7 Norris, Pa. 335 ; Russell v. Bell, 
 securities for one debt can avail himself 10 M. & W. 340. 
 
 of either for the whole. Taylor's Ap- ^ p-or example, Pugh v. Mays, 60 
 
 peal, 31 Smith, Pa, 460. Texas, 191 ; Ohio Falls Car Co. v. Men- 
 
 * Compton's Case, cited 1 T. R. 136. zies, 90 Ind. 83. 
 
 * Meyer v. Morgan, 51 Missis. 21; ' Anderson's Appeal, 12 Casey, Pa. 
 Hawkins v. Lange, 22 Minn. 557 ; Sen- 476 ; Pratt v. Philbrook, 41 Maine, 132 ; 
 tell V. Kennedy, 29 La. An. 679. Spread v. Morgan, 11 H. L. Cas. 588; 
 
 6 Graves u. White, 87 N. Y. 463; Sanger o. Wood, 3 Johns. Ch. 416; 
 Dotson V. Bailey, 76 Ind. 434 ; Luey v. Childs v. Stoddard, 130 Mass. 110, 112. 
 Bundy, 9 N. H. 298 ; Fox v. Kitton, 19 See Anderson v. Soward, 40 Ohio State, 
 111.519. 325 ; McCraeken w. Finley, Pr. Dec. 2d 
 
 6 Lowe V. Peers, 4 Bur. 2225, 2228. . ed. 195. 
 
 ' Ante, § 186; Tightmeyer v. Mon- i" Post, § 803 ; Sanger v. Wood, 3 
 
 306 
 
CHAP. XXIS.] ELECTION AND -WATVEE. § 786 
 
 § 784. Consequences of Election. — An election once made 
 binds the party, he is now too late to take the other alterna- 
 tive.^ Thus, if he has sued for the price of goods on the 
 theory that a transaction amounted to a sale of them, he 
 cannot assume there was no sale and so reclaim them.^ Or, 
 if one, having an option to buy certain land, enters into pos- 
 session or otherwise exercises over it acts of ownership, he 
 cannot recede from the purchase, which he has thus elected 
 to make.^ 
 
 § 785. Alternative in Contract — (Which Party elect). — 
 Coke states the rule, and it has ever since prevailed unques- 
 tioned, to be, that, " in case an election be given of two sev- 
 eral things, alwaj'S he which is the first agent, and which ought 
 to do the first act, shall have the election." * Among his 
 illustrations are the following. "If I give unto you one of 
 my horses in my stable, there you shall have the election ; 
 for you shall be the first agent by taking or seizure of one 
 of them. . . . But, if I contract with you to pay unto you 
 twenty shillings or a robe at the Feast of Easter [the election 
 is with me to give the one or the other, yet if I neglect to do 
 either], after the Feast [you may elect which you will have, 
 that is] you may bring an action of debt for the one or for 
 the other." ^ The latter instance is a familiar one of the 
 election shifting ; being in the one party before a breach, and 
 in the other after. This may be further illustrated thus, — 
 
 § 786. Before or after Breach. — Where a promise is in the 
 alternative, to pay in money or something else, and the prom- 
 isor responds in neither on the appointed day, his right of 
 election is gone, and the promisee is entitled to the money .^ 
 
 Johns. Ch. 416; Allen v. Knowlton, 47 8 Curran v. Rogers, 35 Mich. 221. 
 
 Vt. 512; The Charlotte, Lush. 252; < Co. Lit. 145 a ; Mayer u. Dwinell, 
 
 Wright V. Thomas, 26 Ohio State, 346 ; 29 Vt. 293; Smith v. Sanborn, 11 Johns. 
 
 Melick V. Darling, 11 Ohio, 343; An- 59 ; Disborough v. Neilson, 3 Johns, 
 
 derson's Appeal, supra. Cas. 81 ; Choice v. Moseley, 1 Bailey, 
 
 1 Brown v. Royal Ins. Co. 1 Ellis 136; Chippendale v. Thurston, 4 Car. 
 
 &E. 853, 5 Jur. N. 8. 1255; Allen v. &P. 98; Layton w.Pearce, I Doug. 15; 
 
 Knowlton, 47 "Vt. 512 ; Childs v. Stod- Deverill v. Burnell, Law Rep. 8 C. P. 
 
 dard, 130 Mass. 110 ; Brinley v. Tibbets, 475, 480. 
 
 7 Greenl. 70 ; Brown v. Bass, 4 Wal. 262. « Co. Lit. 145 a. 
 
 ^ Bailey v. Hervey, 135 Mass. 172; ° Marlor v. Texas, &c. Railway, 21 
 
 Nelson v. Carringtoh, 4 Munf. 332. Fed. Rep. 383. 
 
 307 
 
§ 791 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 And where the bargain was to pay a widow for her dower 
 "eight hundred dollars, or, in lieu thereof, twenty dollars 
 semi-annually " during her life, it was held that, on the party's 
 failure to pay a twenty dollar instalment, he became liable to 
 be sued for the eight hundred dollars.^ So, if a debtor has 
 the option to make payment in one of three ways by a certain 
 time, then, if he suffers the time to elapse without paying, the 
 option passes to the creditor, who may enforce which he will.^ 
 
 § 787. Complications — may arise, wherein the application 
 of the rule we are considering will be less plain. Or the 
 terms of the contract or its nature may furnish the guide in 
 place of the rule. As the facts of cases differ, and the new 
 ones will almost certainly vary from the old, it is believed 
 that the practitioner will be best served by leaving the ques- 
 tion here.^ 
 
 § 788. Further Help — on this subject of election may 
 be derived from the elucidations of its correlative subject; 
 namely, — 
 
 II. Waiver. 
 
 § 789. Elsewhere. — The doctrine of waiver is in some de- 
 gree elucidated in our chapter on the consideration.* 
 
 § 790. Extent of Doctrine. — Waiver, equally with its coun- 
 terpart election,^ pervades nearly or absolutely every depart- 
 ment of tlie law and judicial practice, civil and criminal.^ In 
 the law of contracts, — 
 
 § 791. On what Principles. — The doctrine rests on one, or 
 another, or on all in combination, of the following three prin- 
 ciples, as the special facts and nature of the particular case 
 
 1 Waggoner v. Coxi 40 Ohio State, 74 N. Y. 47 ; Perry v. Watts, 67 Ga. 
 539. 602 ; Dessert v. Scott, 58 Wis. 390 ; 
 
 2 Corbin v. Fairbanks, 56 Vt. 538. White v. Hancock, 2 C. B. 830 ; Blitz t-. 
 As aiBrming the doctrine of this section Union Steamb. Co. 51 Mich. 558 ; Wes- 
 Kenerallr, Collins v. Whigham, 58 Ala. ton v. Metropolitan Asy. Dist. 9 Q. B. 
 438. D. 404 ; Moale v. Baltimore, 61 Md. 224. 
 
 8 Consult, for example, Fordley's * Ante, § 94-100. 
 Case, 1 Leon. 68 ; Mulcahey v. Emi- 5 Ante, § 777. 
 grant Indus. Sav. Bank, 89 N. Y. 435 ; ^ For expositions, see 1 Bishop Crim. 
 Price V. Nixon, 5 Taunt. 338; Jones v. Law, § 995-1007, 1 Bishop Crim. Pro- 
 Kemp, 49 Mich. 9; Clark v. Dickinson, ced. § 117-126, and various other places. 
 
 308 
 
CHAP. XXIX.] ELECTION AND WAIVEE. §794 
 
 indicate ; namely, the principle of contract by mutual concur- 
 rence of the wills, the principle of contract created by law, 
 and the principle of estoppel. 
 
 § 792. Defined. — Waiver is where one in possession of any 
 right, whether conferred by law or by contract, and of full 
 knowledge of the material facts, does or forbears the doing of 
 something inconsistent with the existence of the right or of 
 his intention to rely upon it ; thereupon he is said to have 
 waived it, and he is precluded from claiming anything by 
 reason of it afterward. To illustrate, — 
 
 § 793. Right under Law — (Statute — Constitution). — Any 
 right derived from the law may be waived.^ Thus, the right 
 to be notified of a judicial proceeding, or to be summoned in 
 a particular form, is waived by an unconditional appearance.^ 
 An innkeeper waives his lien on the goods of a guest if he 
 wrongfully sells them.^ And where a statute forbids a stock- 
 holder to transfer his stock on the books of a bank while in- 
 debted to it, the bank may still make the transfer, thereby 
 relinquishing the benefit, and giving the transferee a perfect 
 title.* The right of appeal and all similar rights may be 
 waived.^ So may a privilege conferred by the State or Na- 
 tional Constitution.^ Again, — 
 
 § 794. Landlord and Tenant — (Forfeiture) . — Where a 
 lease of lands subjects the lessee's estate to forfeiture if he 
 assigns it, or permits an auction on the premises, or neglects 
 to pay rent, or the like, and thereupon the lessee does or suffers 
 the prohibited thing, the lessor will waive the forfeiture, so 
 as never afterward to be permitted to insist upon it, should 
 he take pay for subsequent rent, or do anything else by which 
 in legal effect he recognizes the continued existence of the 
 lease.^ So, — 
 
 1 Ante, § 94-98. mont, &c. Eailroad, 63 N. T. 176 ; Kirk 
 
 2 Christal V. Kelly, 88 N. Y. 285 ; v. Hamilton, 102 U. S. 68 ; Stryker v. 
 Handy w. Insurance Co. 37 Ohio State, Rivers, 47 Iowa, 108. 
 
 366 ; Williams v. Kimball, 132 Mass. « Simmons v. Anderson, 56 Ga. 53 ; 
 
 214 ; Catlin v. Ricketts, 91 N. Y. 668. Lee v. Tillotson, 24 Wend. 337 ; Home 
 
 3 Mulliner v. Florence, 3 Q. B. D. 484. Ins. Co. v. Security Ins, Co. 23 Wis. 
 * National Bank v, Watson town 171; Ferguson w.Landram, 5 Bush, 230; 
 
 Bank, 105 U. S. 217. Tone v. Columbus, 39 Ohio State, 281. 
 
 5 Ogdensburgh, &c. Railroad ;;. Ver- ' Coon v. Brickett, 2 N. H. 163; 
 
 309 
 
§ 795 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 § 795. Time and Manner of Performance. — A party to a 
 contract may so waive any objection to its performance in 
 time or manner, that, though in fact it has not been in these 
 respects in accord with the stipulations, the mutual rights of 
 the parties will thereafter be the same as though there had been 
 a literal fulfilment.^ In which case, for example, if the con- 
 tract is under seal and the waiver is oral, an action of cove- 
 nant rather than one adapted to a parol undertaking will be 
 proper .2 The distinction between this sort of case, and that 
 in which the change will be held to constitute a new contract, 
 is not quite so plainly drawn in the adjudged cases as we 
 might desire ; still its existence, in point of legal doctrine, is 
 well established.^ An instance occurs where the time of the 
 doing has been postponed at the other party's request, or by 
 mutual acquiescence, but this operates practically to enlarge 
 the time.* If the contract requires manufactured goods to be 
 inspected by a specified person, but the party receiving them 
 has them inspected by another, such party cannot object to 
 the personality of the inspector.^ A person who has bar- 
 gained to buy of another a safe of a particular description, if 
 he accepts one of another description, nor offers to return it, 
 thereby waives the difference, and he must pay the contract 
 price.® One who, before default by the other party, disables 
 
 Western Bank v. Kyle, 6 Gill, 343; & S. 26 ; Fisher v. Smith, 48 HI. 184; 
 
 Clark 47. Jones, 1 Denio, 516; McGlynu Stead v. Dawber, 10 A. & E. 57, 64; 
 
 V. Moore, 25 Cal. 384; McKildoe v. McNaughteru. Cassally, 4 McLean, 530 ; 
 
 Darracott, 13 Grat. 278; Toleman v. Ex parte Booker, 18 Ark. 338; Bun-ill 
 
 Portbury, Law Rep. 6 Q. B. 245, 248 ; v. Saunders, 36 Maine, 409 ; Vroman v. 
 
 Mitchell V. Steward, Law Rep. 1 Eq. Darrow, 40 111. 171 ; Cuff y. Penn, 1 M. 
 
 541 ; Grimwood v. Moss, Law Rep. 7 & S. 21 ; Chicago, etc. Railway ». Van 
 
 C. P. 360. Dresar, 22 Wis. 511 ; Adams v. Hill, 16 
 
 1 National Life Ins. Co. v. TuUidge, Maine, 215 ; Palmer v. Stockwell, 9 
 
 39 Ohio State, 240 ; Taylor v. Prestldge, Gray, 237 ; Shaw v. The Turnpike, 2 
 
 , 33 La. An. 41 ; Defenbaugh v. Weaver, Pa. 454 ; Dare v. Spencer, 5 Blackf. 
 
 87 111. 132 ; Lotinsbury v. Beebe, 46 491. 
 
 Conn. 291 ; Osborne v. Flood, 1 1 Bradw. * Smith v. Snyder, 77 Va. 432 ; Law- 
 
 408 ; Marsh v. Bellew, 45 Wis. 36 ; son v. Hogan, 93 N. Y. 39 ; Swift v. 
 
 Bast V. Byrne, 51 Wis. 531 ; Selleck v. United States, 14 Ct. of CI. 308. 
 
 Griswold, 49 Wis. 39. ^ Hobart v. Beers, 26 Kan. 329. 
 
 ^ Monocacy Bridge 1). American Iron ' Mackey v. Swartz, 60 Iowa, 710. 
 
 Bridge Manuf. Co. 2 Norris, Pa. 517. And see Comstock v. Sanger, 51 Mich. 
 
 8 McCombs V. McKennan, 2 Watts 497 ; Hirshhorn- v. Stewart, 49 Iowa, 
 
 & S. 216; Wilhelm v. Caul, 2 Watts 418. This sort of doctrine does not ap- 
 
 310 
 
CHAP. XXIX.] ELECTION AND WAIVER. § 797 
 
 himself to perform, thereby waives the doing by such party 
 of acts which, but for the disability, would be conditions pre- 
 cedent to his maintaining a suit on the contract.^ The waiver 
 may be by acts after, the same as before, default ; as, where 
 one acquiesces in the doing to-day of what ought to have been 
 done yesterday .2 
 
 § 796. The Principle — on which, in various circumstances, 
 a performance in time or manner differing from the stipula- 
 tions, which are waived, is accorded the same effect as a literal 
 performance, is evidently that of estoppel.^ A party who, 
 standing by, has concurred in and accepted what the other 
 did in fulfilment, is not in a position to deny that the contract 
 has been fulfilled. To illustrate, — 
 
 § 797. In Insurance Law. — A policy of insurance specifies 
 the time and manner of notifying the insurer of a loss, and 
 proving it. But if, after the loss, the proper officer of the 
 insurance company, instead of standing upon his right to have 
 such notification and proof, goes upon the "ground and agrees 
 with the insured as to the valuation, the transaction consti- 
 tutes a waiver, by the company, of the steps set down in the 
 policy.* And so does anything else of a similar sort.^ If, 
 where the insurer has thus waived the steps, leaving the 
 insured to believe them not required, the former could insist 
 on being released from payment because they were not taken, 
 he would have misled the latter to his great detriment, — ex- 
 actly what the doctrine of equitable estoppel was introduced 
 into the law to prevent.® Again, where a policy is by its 
 terms forfeited if a payment is not made in a time or manner 
 pointed out,^ the insurer waives the forfeiture if he volunta- 
 
 ply to a structure which one has built, Lawrence v. Davey, 28 Vt. 264 ; Bald- 
 not according to contract, on the land win v. Famsworth, 1 Fairf. 414; Eyster 
 of another who, therefore, can do no v. Parrott, 83 III. 517. 
 otherwise than accept it. Levy v. ' Ante, § 264 et seq. 
 Schwartz, 34 La. An. 209. * Susquehanna Mut. Fire Ins. Co. v. 
 
 1 Woolner v. Hill, 93 N. Y. 576, 581. Staats, 6 Out. Pa. 529. 
 
 2 Ante, § 794 ; Jordan v. Rhodes, 24 * Pennsylvania Fire Ins. Co. v. 
 Ga. 478 ; Nibbe v. Brauhn, 24 111. 268 ; Dougherty, 6 Out. Pa. 568. 
 
 McCord V. West Feliciana Railroad, 3 = Ante, § 284. 
 
 La. An. 285 ; Lagrave v. Fowler, 4 La. ' Mutual Life Ins. Co. v. French, 30 
 
 An. 243 ; Fox v. Harding, 7 Cush. 516 ; Ohio State, 240. 
 
 311 
 
§ 802 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 rily accepts payment in another time or manner,^ Were this 
 not so, the insurer would, in accepting the money or other 
 thing rendered in payment, have misled the insured to his 
 detriment, in violation of the rule in estoppel. Once, more, if 
 the insured is to make yearly payments, and the omission of 
 one is to forfeit the policy, but from each payment there is to 
 be a deduction ascertainable by the insurer whose duty it is 
 to notify the insured of the amount, then, should this notice 
 in a particular instance not be given, there can be no forfeit- 
 ure for the non-payment. It is waived.^ In this case, also, 
 if the doctrine of equitable estoppel were not applied, the in- 
 surer would have entrapped the insured to his injury. 
 
 § 798. Other Illustrations — will be discovered, by the dis- 
 cerning reader, in any of the cases which are cited to the 
 doctrine itself.^ 
 
 § 799. Knowledge — of the facts is indispensable in waiver, 
 which does not take effect by anything done in ignorance of 
 them.* Thus,— ' 
 
 § 800. Breach of Condition. — By no act does one waive 
 the breach of a condition in his contract, if the fact that it is 
 broken is unknown to him.^ And — 
 
 § 801. Defect in Manufacture. — If, in an article manufac- 
 tured under a contract, there is a latent defect, in ignorance 
 whereof the party accepts it, he does not thereby waive his 
 right to recover damages for the defect.^ Again, — 
 
 § 802. stoppage in Transitu. — : By the law of sales, if , after 
 one has sold goods to another, and while they are in the pos- 
 session of warehousemen and common carriers,. yet not other- 
 
 1 Phoenix Ins. Co. v. Lansing, 1 5 etc. Railway, Law Rep. 2 H. L. 43, 57 ; 
 Neb. 494 ; Thompson v. Knickerbocker Benedict v. Miner, 58 111. 19 ; Boynton 
 Life Ins. Co. 104 U. S. 252 ; Miller v. v. Braley, 54 Vt. 92. And see Hopkins 
 Life Ins. Co. 12 Wal. 285. v. Briggs, 41 Mich. 175 ; St. Bartholo- 
 
 2 Phoenix Mut. Life Ins. Co. v. Dos- mew «. Wood, 30 Smith, Pa. 219. 
 
 ter, 106 U. S. 30. 6 Gray v. Blanchard, 8 Pick. 284, 
 
 8 See, for example, cases cited ante, 292 ; Robertson ti. Metropolitan Life 
 
 § 794, 795 ; Rump v. Schwartz, 56 Iowa, Ins. Co. 88 N. Y. 541 ; Bennecke v. Gon- 
 
 611 ; Lake v. Lewis, 16 Nev. 94 ; Hill v. necticut Mut. Ins. Co. 105 U. S. 355. 
 
 Townsend, 69 Ala. 286 ; Jones i>. Trin- 6 Cassidy v. Le Feyre, 45 N. Y. 562; 
 
 ity Parish Vestry, 19 Fed. Rep. 59. Strawn v. Cogswell, 28 111. 457 ; Moul- 
 
 * Ante, § 783 ; Damley v. London, ton v. McOwen, 103, Mass. 587. 
 
 312 
 
CHAP. XXIX.] ELECTION AND WAIVER. § 805 
 
 wise delivered, tbe purchaser becomes insolvent, the seller 
 may reclaim and hold them unless the other will pay for them. 
 This is termed stoppage in transitu.^ But the right thus to 
 reclaim them may be waived. So that, for example, should 
 the seller, with full knowledge of the facts, attach them as 
 the property of the buyer, instead of stopping them as in 
 transitu, this right is gone.^ But if he is ignorant of the fact 
 that their transit has not ended, and by reason thereof takes 
 the like step, he may stop them and decline to press his suit, 
 on the truth coming to his knowledge.^ 
 
 § 803. Act of ■Waiver. — The foregoing sections furnish 
 illustrations of the act by which a waiver is constituted. A 
 secret purpose is not enough,* nor is the silence of one who is 
 under no duty to speak ; ^ but there must be language or con- 
 duct duly expressing or exemplifying the intent.^ 
 
 § 804. Estoppel T— Bzecuted — (Consideration}. — We have 
 seen that, to a large extent, the binding effect of waiver pro- 
 ceeds from the doctrine of estoppel,^ where no consideration 
 is required.* Moreover, an executed waiver, even though it 
 was in the nature of an ordinary contract and voluntary, fol- 
 lows the rule of other executed contracts, which are good 
 without a consideration ; ^ so that if, in fact, no return for it 
 was made, it was like any other gift, and it cannot be recalled.^" 
 On these grounds, — 
 
 § 805. Simultaneous with Performance. — If, when perform- 
 ance is due, a party called upon refuses to do the substance 
 of the thing required by his contract, yet does not interpose 
 an available objection as to time and manner, he. thereby 
 waives the objection, which afterward he is too late to bring 
 
 1 2 Keut Com. 540 ; Inslee v. Lane, v. Rust, 19 Fed. Rep. 239 ; Hamlin ». 
 57 N. H. 454 ; Ex parte Rosevear China Sears, 82 N. Y. 327. 
 
 Clay Co. 11 Ch. D. 560; Kendal v. 6 Ante, § 783; Mattocks u Young, 
 
 Marshall, 11 Q. B. D. 356; Kemp v. 66 Maine, 459; Hutcheson v. McNutt, 
 
 Falk, 7 Ap. Cas. 573, 35 Eng. Rep. 395, 1 Ohio, 14, 21 ; Howard v. Holland 
 
 and Moak's note. Schools, 50 Mich. 94 ; Cohrt v. Kock, 
 
 2 Woodruff V. Noyes, 15 Conn. 335. 56 Iowa, 658. 
 
 3 Calahan v. Babcock, 21 Ohio State, ' Ante, § 791, 796-798. 
 281, 294. 8 Ante, § 283. 
 
 * West V. Piatt, 127 Mass. 367. » Ante, § 80-84. 
 
 5 Ante, § 288 ; Texas, &c. Railway i" Lawrence v. Dole, 1 1 Vt. 549. 
 
 313 
 
§ 808 IN GENERAL WITH ILLUSTBATIONS. [BOOK I. 
 
 forward ; nor can he claim that the waiver was without con- 
 sideration.^ So an acceptance of what one does as under his 
 contract, yet in time and manner differing from its stipula- 
 tions, and proceeding from no separate consideration, will he 
 good.2 
 
 § 806. Right given by Law — (Consideration). — It has 
 already been sufficiently explained, that a party may waive 
 any right which the law offers him,^ and no consideration is 
 necessarj-^ to make the waiver binding.* Still, — 
 
 § 807. Promise to ■waive — (Consideration — Iiicense). — In 
 cases not within the foregoing principles, an executory prom- 
 ise to waive a stipulation in a contract is, at most, a mere 
 license, which may be withdrawn at pleasure, unless founded 
 on a consideration.^ 
 
 § 808. The Doctrine of this Chapter restated. 
 
 Whenever, by law or by contract, a party has laid before 
 him a variety of steps, the taking of one of which excludes 
 another or the rest, he must choose between them. After his 
 choice is made, and by words or by acts expressed in a manner 
 suited to the particular case, he cannot reverse it ; he is said 
 to have elected the one step and waived the other. This 
 doctrine presents itself in various aspects under the differing 
 facts of cases, as explained in the foregoing sections. Kepe- 
 titions do not seem to be here desirable. 
 
 1 Dunlap V. Hunting, 2 Denio, 643; art, 2 Aikens, 417 ; Warren v. Mains, 
 Merritt v. Cotton States Life Ins. Co. 7 Johns. 476 ; O'Bannon v. Keif, 7 
 55 Ga. 103 ; Morgan v. Stearns, 40 Cal. Dana, 320 ; Lawrence v. Davey, 28 Vt. 
 434 ; Dresel v. Jordan, 104 Mass. 407 ; 264 ; Haskell v. Blair, 3 Cush. 534. 
 Stover V. Flack, 30 N. Y. 64; Connelly 3 Ante, § 793. 
 
 V. Devoe, 37 Conn. 570 ; Pullman u. * Ante, § 94-98. 
 
 Corning, 5 Selden, 93 ; Corbitt v. Stone- ^ Dunning v. Mauzy, 49 111. 368 ; 
 
 metz, 15 Wis. 170. And see Long Island Boutwell w. O'Keefe, 32 Barb. 434 ; Rey- 
 
 Ferry «. Terbell, 48 N. Y. 427. nolds v. Burlington, &c. Bailroad, 11 
 
 2 Ante, § 795, 797 ; Porter b. Stew- Neb. 186. 
 
 314 
 
CHAP. XXX.] EESCISSION, § 812 
 
 CHAPTER XXX. 
 
 BESCISSION OP THE CONTEACT. 
 
 § 809-811. Introduction. 
 812-822. By Mutual Consent. 
 823-836. By one Party as of Right. 
 837-841. Wrongfully by a Party. 
 
 842. Doctrine of Chapter restated. 
 
 § 809. Defined. — We have already seen, that rescission 
 is the avoiding of a voidable contract.^ By " voidable " is 
 here meant, not merely a contract voidable in its nature, but 
 any one which under the circumstances may be avoided by 
 the particular means employed. 
 
 § 810. Elsewhere. — Under the titles " Fraud " and " Mis- 
 take," this subject is considerably explained,^ and it is more 
 or less so in other connections.^ Release, to be treated of in 
 the next chapter, is analogous to rescission. 
 
 § 811. How Chapter divided. — We shall consider rescis- 
 sion, I. By Mutual Consent; II. By one Party rightfully, 
 because of Something in the Terms of the Contract or the 
 Conduct of the other; III. Wrongfully, by one Party, 
 the other not consenting. 
 
 I. By Mutual Consent. 
 
 § 812. Power and Purpose. — The unmaking of a contract 
 is within the power which made it, and is equally effectual.* 
 
 1 Ante § 679. * Shellenbarger v. Blake, 67 Ind. 75 ; 
 
 2 Ante' § 679-683, 688, 707-713. Mills v. Oddy, 1 Gale, 92, 6 Car. & P. 
 8 Ante, § 130, 135, 174, 273, 325-327, 728. 
 
 332, 726, 741. 
 
 315 
 
§ 816 IN GENERAL. WITH ILLUSTRATIONS. [BOOK I. 
 
 It requires the same concurrence of the wills, nor will any- 
 thing short suffice.^ 
 
 § 813. Consideration. — The mutual release from the old 
 contract is an adequate consideration for the rescission.^ 
 
 § 814. Special Formalities. — The Statute of Frauds and 
 other like statutes which require certain specified contracts 
 to be in writing, and the rules of the common law which 
 render a seal essential to some others, do not extend to the 
 rescission ; therefore, within explanations already given,^ it 
 may be oral.* Hence, — 
 
 § 815. How Mutually Rescind. — If the contract is founded 
 in mutual promises, whether verbal or in writing, — or, if in 
 writing, whether the law requires it to be so or not, — the 
 parties can jointly, before anything is done under it, withdraw 
 these promises ; and thereby, whether the withdrawal is oral 
 or written, it will beended.^ Or, if it was under seal, they 
 can mutually do the same thing with the same effect, merely 
 adding the destruction of the seal.® So much is plain. But 
 something less or different will not unfrequently suffice, and 
 the facts of cases vary. Thus, — 
 
 § 816. Implied — (Both in Fault). — The mutual consent to 
 a rescission need not be by express words, being equally valid 
 if implied.^ It is sufficiently implied, for example, where both 
 
 1 Cooper V. Mcllwain, 58 Ala. 296; Beach v. Covillard, 4 Cal.315; Natchez 
 Rockcliffe v. Pearce, I Fost. & P. 300 ; v. Minor, 9 Sm. & M. 544 ; Moore v. 
 Heinekey v. Earle, 8 Ellis & B. 410. Shenk, 3 Barr, 13 ; Lauer v. Lee, 6 
 
 2 Kelly V. Bliss, 54 Wis. 187. Com- Wright, Pa. 165 ; Borum v. Garland, 9 
 pare with ante, § 68; Morrill v. Cole- Ala. 452 ; MiUs v. Riley, 7 Ind. 137. 
 hour, 82 111. 618; Kent v. Reynolds, 8 * Matthewson w. Lydiate, Cro. Bliz. 
 Hun, 559. 546 ; Cross v. Powel, Cro. Eliz. 483. 
 
 * Ante, § 151-153. See, further, as to annulling a sealed 
 
 * Ante, § 134, 174; Davis v. Inscoe, instrument, ante, § 130-138; McDonald 
 84 N. C. 396; Rex «. Wait, 11 Price, u. Mountain Lake Water Co. 4 Cal. 335 ; 
 518; Dearborn v. Cross, 7 Cow. 48; Union Bank t». Call, 5 Fla. 409. 
 Guthrie v. Thompson, 1 Oregon, 353. ' Wheeden v. Fiske, 50 N. H. 125; 
 
 ' Stead V. Dawber, 10 A. & E. 57, Fine v. Rogers, 15 Misso. 315; Jones ii. 
 65 ; Coles v. Trecothick, 9 Ves. 234, 250 ; Neale, 2 Pat. & H. 339 ; Washabaugh e. 
 Forbesw. Smiley, 56 Maine, 174; Waugh Stauffer, 32 Smith, Pa. 497; Wehrli 
 V. Blevins, 68 N. C. 167; Goman v. v. Rehwoldt, 107 III. 60 ; Jewell f. Bed- 
 Salisbury, 1 Vern. 240 ; Gatlin v. Wil- dington, 57 Iowa, 92 ; De Bernardy v. 
 cox, 26 Ark. 309 ; Cutler v. Smith, 43 Harding, 8 Exch. 822 ; Paul v. Meser- 
 Vt. 577 ; Guthrie v. Thompson, 1 Ore- vey, 58 Mainc^ 419. 
 gon, 353 ; Ward v. Walton, 4 Ind. 75 ; 
 
 316 
 
CHAP. XXX.] EESCISSION, § 820 
 
 parties are in default, so that neither can sue the other ; or 
 where both discard the contract.^ The differing cases within 
 this principle are numberless. For further example, — 
 
 § 817. Notice and Acceptance. ■ — If, even before the time 
 for performance arrives, a party notifies the other that he shall 
 not be able to perform, such other may, should he so elect, 
 rescind thereupon the contract. The case will then be one, 
 in effect, of rescission by mutual consent.^ 
 
 § 818. Statu Quo -^ (Reclaiming Consideration). — A party, 
 to accomplish an adverse rescission, must return to the 
 non-consenting party what will place him in statu quo.^ If, 
 under the mutual rescission which we are now considering, 
 the contract rests simply in mutual promises,* the parties are 
 necessarily put by it into their former condition ; but, if either 
 has paid to the other anything for the promise in the contract, 
 he is prima facie entitled to have or recover it back.^ It is 
 otherwise where one means to make to the other a present of 
 such consideration,^ or where it is itself the consideration for 
 the rescission. And, from a complication of reasons,'' — 
 
 § 819. Destruction. — Surrendering to the maker a promis- 
 sory note, to be destroyed, is as complete a discharge of the 
 liability as a payment of it in money.* 
 
 § 820. Executed. - — A contract which, being executed on 
 both sides, has fully accomplished its mission, is not the 
 subject of rescission ; there is nothing to rescind.® A reversal 
 
 1 Harris v. Bradley, 9 Ind. 166; Carter, 14 Pick. 424 ; Lebanon w. Heath, 
 Ford V. Smith, 25 Ga. 675 ; Parmly v. 47 N. H. 353 ; Kelsey v. United States, 
 Buckley, 103 111. 115. 1 Ct. of CI. 374; Bales v. Weddle, 14 
 
 2 Johnstone v. Milling, 16 Q. B. D. Ind. 349 ; Harris w. Bradley, 9 Ind. 166 ; 
 460, 467, 470, 471 ; Mersey Steel & Iron Chapman v. Shaw, 5 Greenl. 59 ; Smith 
 Co. V. Naylor, 9 Ap. Cas. 434, 442, 443 ; v. Lamb, 26 111. 396 ; Blood v. Enos, 12 
 Shaw V. Republic Life Ins. Co. 69 N. Y. Vt. 625 ; Middleport Woollen Mills v. 
 286. Titus, 35 Ohio State, 253 ; Giles v. Ed- 
 
 3 Ante, § 679; post, § 833; Hunt v. wards, 7 T. E. 181. See Jones v. Log- 
 Silk, 5 East, 449 ; Jarrett v. Morton, 44 gins, 37 Missis. 546. 
 
 Misso. 275 ; Johnson v. Walker, 25 Ark. « Ante, § 50. 
 
 196 ; Ellington v. King, 49 111. 449 ; 1 Ante, § 50, 82, 757, 804. 
 
 Young !?. Stevens, 48 N. H. 133. 8 Miller v. Tharel, 75 N. C. 148; 
 
 * Ante, § 76-79, 815. Paxton i). Woodj 77 N. C. 11. And see 
 
 6 Barber v. Lyon, 8 Blackf. 215; ante, § 757. 
 
 Clark V. King, 2 Car. & P. 286 ; Jenkins » Chapman v. Searle, 3 Pick. 38, 44. 
 
 V. Thompson, 20 N. H. 457 ; Carter v. 
 
 31T 
 
§ 823 IN GENERAL WITH ILLUSTRATIONS. [BOOK 1. 
 
 of what was done could be effected onlj'^ by a new agreement, 
 under the formalities required in any new transaction.^ For 
 example, — 
 
 § 821. Cancelling Deed of Land. — The title to real estate 
 can be transferred only by deed. If, then, a grantee in whom 
 land has vested delivers back his deed to the grantor, or if it 
 is cancelled by mutual consent, the grantor is not thereby re- 
 invested with the ownership ; though in some circumstances 
 the transaction may amount to an agreement to reconvey.^ 
 The facts of the particular case may vary this conclusion ; as, 
 if the deed has not been recorded, a subsequent conveyance 
 from the original grantor to a third person will transmit the 
 title to the latter.^ And there are exceptional States in which, 
 it appears, the surrender of an unrecorded deed will restore 
 the seisin to the grantor.* 
 
 § 822. Performed on one Side — (Broken). — If the con- 
 tract has been performed on one side, and only money 
 remains to be paid on the other side, the discharge from 
 this indebtedness can be effected only in the same way as 
 from any other. It is so likewise of a claim fqr damages 
 resulting from anj' breach.^ 
 
 II. By one Parti/ rightfully, because of Something in the 
 Terms of the Contract or the Conduct of the other. 
 
 § 823. Original Voidability. — Where a contract is voidable 
 in its inception, — as, if by its terms one of the parties may 
 
 1 Quincy v. Tilton, 5 Greenl. 277. 4 Yerg. 375 ; Graysons v. Richards, 10 
 
 2 Kearsing v. Kilian, 18 Cal. 491 ; Leigh, 57; Parker v. Kane, 4 Wis. 1 ; 
 Lawton v. Gordon, 34 Cal. 36 ; Parshall Rogers v. Rogers, 53 Wis. 36 ; Taliaferro 
 V. Shirts, 54 Barb. 99, 104 ; Linker v. v. Rolton, 34 Ark. 503. And see ante, 
 Long, 64 N. C. 296 ; Holbrook v. Tir- § 758. 
 
 rell, 9 Pick.' 105 ; Steel v. Steel, 4 Allen, = Holbrook v. Tirrell, snpra. 
 
 417, 422; Van Hook v. Simmons, 25 * Sawyer v. Petei-s, 50 N. H. 143; 
 
 Texas, Supp. 323 ; Fawcetts v. Kimmey, Tomson v. Ward, 1 N. H. 9 ; Nason v. 
 
 33 Ala. 261 ; Gimon v. Davis, 36 Ala. Grant, 21 Maine, 160; Parker v. Kane, 
 
 589; Killey v. Wilson, 33 Cal. 690; 22How. U. S. 1. 
 
 Jordan v. Pollock, 14 Ga. 145 ; Wilson ' Nesbitt v. McGehee, 26 Ala. 748; 
 
 V. Hill, 2 Beasley, 143; Raynor v. Wil- Cutler v. Smith, 43 Vt. 577; Palmer --. 
 
 son, 6 Hill, N. Y. 469 ; Connelly v. Green, 6 Conn. 14 ; Kidder v. Kidder, 9 
 
 Skelly, 8 Blackf. 320 ; Morgan v. Elam, Casey, Pa. 268. 
 318 
 
CHAP. XXX.] RESCISSION. § 827 
 
 avoid it,^ — or, if it is illegal in one only ,2 — or, if it is oral, 
 yet such as the Statute of Frauds requires to be written,^ — 
 or, if it was procured of one party by the fraud of the other,* — 
 the expositions of preceding chapters show that it may be 
 avoided, or treated as null, by the party in whom is the 
 right. Bej'ond this, — 
 
 § 824. Matter Subsequent — may create a voidability, au- 
 thorizing rescission. It is this to which our present in- 
 quiries chiefly relate. Thus, — 
 
 § 825. Failure of Consideration. — If the consideration has 
 failed,^ the party who promised on the strength of it may re- 
 scind the bargain.® Or, — 
 
 § 826. Unable to Perform. — If one of the parties, is or be- 
 comes unable to do what he had promised,' — as, if he has 
 disposed of the thing, or otherwise disqualified or disabled 
 himself,^ — the other is entitled at his election to rescind the 
 contract. And, in general terms, — 
 
 § 827. Successive Steps — (Breach). — Ordinarily, and sub- 
 ject to limitations which will appear as we proceed, where a 
 contract requires successive steps to be taken by the respec- 
 tive parties, if, when a step becomes due, the party either in 
 words or by their equivalent in acts declines to take it,^ or is 
 unable,!" while the other is ready and willing to do his part, 
 the latter may rescind the contract. Or, if he chooses, he 
 can sue for the breach. He cannot do both." 
 
 1 Fitzpatrick v. Woodruff, 96 N. Y. 8 Pratt v. Philbrook, 41 Maine, 132 ; 
 
 561 ; Fitzgerald v. Allen, 128 Mass. 232 ; Miller v. Phillips, 7 Casey, Pa. 218 ; In 
 
 In re Dames, 27 Ch. I). 172, 29 Ch. D. re Phoenix Bessemer Steel Co., 4 Ch. D. 
 
 626 ; Kuhns v. Gates, 92 Ind. 66 ; Barr 108 ; Keys v. Harwood, 2 0. B. 905. 
 
 V. Van Duyn, 45 Iowa, 228 ; Sanger v. " Bloomer v. Bernstein, Law Eep. 9 
 
 Chicago, 65 111. 506. C. P. 588 ; Chamber of Commerce «. 
 
 ■^ Ante, §481, 482, 489; Lafferty i). Sollitt, 43 111. 519; Morgan v. Bain, 
 
 Jelley, 22 Ind. 471. Law Eep. 10 C. P. 15; Suber v. PoUin, 
 
 8 Davis V. Townsend, 10 Barb. 333. 1 S. C. 273 ; Anderson v. Haskell, 45 
 
 * Ante, § 679-681. Iowa, 45. 
 
 = Ante, § 70, 71, 599. "> Ante, § 826; Shaffner v. Killian, 7 
 
 « Robinson v. Bright, 3 Met. Ky. 30 ; Bradw. 620. 
 
 Bonner v. Herrick, 3 Out. Pa. 220 ; ^^ Coddington v. Paleologo, Law Eep. 
 
 Winfrey v. Drake, 4 Lea, 293. 2 Ex. 193 ; Boults v. Mitchell, 3 Harris, 
 
 ' Benson v. Cowell, 52 Iowa, 137; Pa. 371; Powell v. Sammons, 31 Ala. 
 
 Dougherty v. Central Nat. Bank, 12 652 ; Dodge v. Greeley, 31 Maine, 343 ; 
 
 Norris, Pa. 227. Rogers v. Hanson, 35 Iowa, 283 ; Crom- 
 
 319 
 
§ 828 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 § 828. Nature of Required Breach. — Not every shortcom- 
 ing of a party will authorize the other to rescind.^ The 
 nature of the particular case must be considered, and it is 
 probably impossible to state a rule applicable to all the vary- 
 ing facts.2 In an English case, Littledale, J. set it down as 
 settled " that, if there is only a partial failure of performance 
 by one party to a contract, for which there may be a compen- 
 sation in damages," there cannot be a rescission.^ In some 
 other English cases, " the true question " has been said to be, 
 " whether the acts and conduct of the party " against whom 
 the rescission is undertaken " evince an intention no longer 
 to be bound by the contract." * While each of these rules is 
 justly to be applied in the circumstances for which it was 
 meant, there are others in which its attempted application 
 could only mislead. If one fails to perform the condition of 
 his contract,^ or if one does not sign written terms pursuant 
 to an oral agreement which is to be reduced to writing ; ^ or 
 if, as stated in the last section, he declines to take a step in a 
 contract providing for alternate steps by the respective par- 
 ties ; or, a fortiori, if he disqualifies himself to perform,^ — 
 plainly the other party may treat the contract as rescinded. 
 And, in general terms, the doctrine is, that the breach, to 
 justify a rescission, must be of a dependent covenant, or 
 wilful, or in a substantial part comprehending the root of the 
 whole. Nor does it always or necessarily suffice that it will 
 sustain an action for damages.^ 
 
 well V. Wilkinson, 18 Ind. 365 ; Good- * Freeth v. Burr, Law Eep. 9 C. P. 
 rich V. Lafflin, 1 Pick. 57; Pierce v. 208,213; Mersey Steel, &c. Co. u. Nay- 
 Duncan, 2 Fost. N. H. 18; Mansfield v. lor, supra. And see Stephens v. Wil- 
 Trigg, 113 Mass. 350; Cohrt v. Kock, kinson, 2 B. & Ad. 320; Cox v. Mc- 
 56 Iowa, 658 ; Rowe v. Rowe, 5 Bradw. Laughlin, 54 Cal. 605. 
 331 ; Brewer v. Broadwood, 22 Ch. D. ' Anderson v. Haskell, 45 Iowa, 45; 
 105 ; Ward v. Kadel, 38 Ark. 174. Reed v. Golden, 26 Kan. 500. 
 
 1 Weintz v. Hafner, 78 111. 27. 6 Gullich v. Alford, 61 Missis. 224. 
 
 ^ Mersey Steel, &c. Co. v. Naylor, 9 ' Ante, § 826 ; Warren v. Richmond, 
 
 Q. B. D. 648, 657. 53 111. 52 ; Little v. Thurston, 58 Maine, 
 
 8 Franklin v. Miller, 4 A. & E. 599, 86. 
 605. And see Scott v. Kittanning Coal 8 Wright v. Haskell, 45 Maine, 489 ; 
 Co. 8 Norris, Pa. 231 ; Waco Tap Rail- Miller v. Phillips, 7 Casey, Pa. 218; 
 road V. Shirley, 45 Texas, 355; Hatton Fletcher v. Cole, 23 Vt. 114; Gatlin v. 
 V. Johnson, 2 Norris, Pa. 219 ; Cox t>. Wilcox, 26 Ark. 309; Selby v. Hutch- 
 McLaughlin, 52 Cal. 590. inson, 4 Gilman, 319; Dodge v. Greeley, 
 320 
 
CHAP. XXX.] RESCISSION. § 832 
 
 § 829. Affirmance. — Within the doctrine of election and 
 waiver, already explained,^ one cannot rescind a contract 
 which, with knowledge that it has been broken, he has 
 affirmed by doing anything in recognition of its continued 
 existence.^ 
 
 § 830. How rescind — (Equity). — In cases witbin the 
 equity jurisdiction, — in most of which, not all, the party has 
 a sort of concurrent remedy at law, — he can apply to equity 
 for a decree of rescission or cancellation.^ And as, while 
 seeking equity he must do equity, and the forms of equity 
 procedure are flexible, the court will adjust the rights of the 
 parties to the equities of the particular case.* Commonly it 
 is not necessary to resort to this method, and the rescission is 
 simply — 
 
 § 831. At Law. — The rescission at law does not require a 
 judgment of rescission or cancellation. It would not accord 
 witb the course of procedure in the common-law courts. It 
 may be — 
 
 § 832. By Notice — (Otherwise — Time). — Ordinarily, as 
 rescission is a matter of election and waiver," the party against 
 
 31 Maine, 343 ; Webster v. Enfield, 5 StoUey, 3 McLean, 523 ; Bogie v. Bogie, 
 Oilman, 298 ; Reid v. Davis, i Ala. 83 ; 41 Wis. 209 ; Hanna v. Eayburn, 84 111. 
 Simpson u. Crippin, Law Rep. 8 Q. B. 533; Papin v. Goodrich, 103 111. 86; 
 14 ; Lney v. Bandy, 9 N. H. 298 ; Allen Smith v. Smith, 5 Lea, 250 ; Blight v. 
 V. Webb, 4 Fost. N. H. 278 ; Preble v. Banks, 6 T. B. Monr. 192 ; Bradbury v. 
 Bottom, 27 Vt. 249 ; Townsend v. Keas, 5 J. J. Mar. 446 ; Garrett v. Mis- 
 Hurst, 37 Missis. 679 ; Hirae v. Klasey, 9 sissippi, &c. Railroad, Freeman, Missis. 
 Bradw. 190; Seipel «. International Life 70; Hamilton v. Cummings, 1 Johns. 
 Ins. &c. Co. 3 Norris, Pa. 47; United Ch. 517; Mahon u. Columbus, 58 Missis. 
 States t>. Wormer, 13 Wal. 25 ; Honck 310 ; Lewis v. Tobias, 10 Cal. 574 ; Brai- 
 V. Mailer, 7 Q. B. D. 92 ; Hall v. Stew- rard v. Holsaple, 4 Greene, Iowa, 485 ; 
 art, 58 Iowa, 681. Bellows v. Cheek, 20 Ark. 424 ; Field v. 
 
 1 Ante, § 782-784, 792, 799, 803, 806. Holbrook, 6 Duer, 597 ; Bedford v. 
 
 2 Grymes i-. Sanders, 93 U. S. 55; Brady, 10 Yerg. 350; McCIellan w. Coffin, 
 Brinley v. Tibbets, 7 Greenl. 70 ; Pratt 93 Ind. 456 ; Blake v. Blake, 56 Wis. 
 V. Philbrook, 41 Maine, 132 ; Akerly v. 392 ; Delong v. Belong, 56 Wis. 514. 
 Vilas, 21 Wis. 88 ; Fitzpatrick v. Wood- * Ante, § 688 ; Williams v. Wilson, 1 
 ruff, 96 N. Y. 561 ; Edwards v. Hand- Dana, 157 ; Martin v. Broadus, Free- 
 ley, Hardin, 611; Crane v. Kildorf, 91 man. Missis. 35; Ellis w. Ellis, 1 Dev. 
 HI. 567; Wilson v. Irish, 62 Iowa, 260. Eq. 398; Waters v. Lemmon, 4 Ohio, 
 See Kuhns v. Gates, 92 Ind. 66. 229; Callender v. Colegrove, 17 Conn. 
 
 8 Ante, § 688, 690, 707, 726, 732, 741, 1 ; Wood v. Garland, 58 N. H. 154. 
 742 ; 1 Story Eq. § 692-706 a ; Brooks v. ' Ante, § 777 et seq. 
 21 321 
 
§ 834 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 whom it takes place should be either notified or otherwise 
 made aware of the intention to rescind.^ And if a notice on 
 Sunday violates the statute for the observance of the Lord's 
 day, it is ill ; ^ if not, it is good.^ Under many circumstances, 
 perhaps generally, the notice need not be express ; for example, 
 the commencement of judicial proceedings, such as a suit to 
 recover back the consideration money, may suffice.* And 
 the rescission must be with reasonable promptness, but this 
 will vary with the particular facts.* Where the contract itself 
 provides the method for its rescission, it simply should be 
 followed.® Moreover, — 
 
 § 833. Statu Quo. — The party rescinding must return the 
 consideration or whatever else he received under the contract, 
 and otherwise do what will put him and the other party in 
 statu quo, as already explained ; ^ and, if he cannot do this, — 
 as, if he has derived from the contract some benefit, not of a 
 sort to be refunded, — he cannot rescind.^ Likewise, — 
 
 § 834. Recover back. — Where rescinding is permissible, 
 and it has been lawfully made by the party not in fault, — 
 or, unlawfully by the other party, — the one entitled may re- 
 cover back the consideration, or whatever else he has paid on 
 the contract ; including compensation for work done, goods 
 delivered, and the like, prior to the rescission.^ But — 
 
 1 Ante, § 681, 783, 803 ; Henderson 7 Ante, §679; California Steam 
 V. Hicks, 58 Cal. 364 ; Carney v. New- Nav. Co. v. Wright, 8 Cal. 585 ; Jen- 
 berry, 24 III. 203 ; MuUinu. Bloomer, II nings v. Gage, 13 111. 610; Tisdale ». 
 Iowa, 360 ; Parmlee v. Adolph, 28 Ohio Buckmore, 33 Maine, 461 ; Conner o. 
 State, 10. Henderson, 15 Mass. 319; Brown v. 
 
 2 Merritt v. Robinson, 35 Ark. 483 ; Witter, 10 Ohio, 142 ; Croft v. Wilbar, 
 Benedict v. Bachelder, 24 Mich. 425. 7 Allen, 248 ; Mason v. Lawing, 10 Lea, 
 
 8 Pence v. Langdon, 99 U. S. 578. 264 ; Blake v. Nelson, 29 La. An. 245 ; 
 
 * Ante, § 681 ; Moore v. Eogers, 19 Smithson u. Inman, 2 Baxter, 88; Ax- 
 
 III. 347; Howard v. Hunt, 57 N. H. tel v. Chase, 77 Ind.74; McMichael v. 
 
 467 ; Graham v. Holloway, 44 III. 385. Kilmer, 76 N. Y. 36 ; Vance v. Schroyer, 
 
 6 Ante, § 680; Cummins v. Lods, 1 79 Ind. 380; Spencer f. St. Clair, 57 
 
 McCrary, 338 ; Michigan, &c. Railroad N. H. 9 ; Haase v. Mitchell, 58 Ind. 213. 
 
 r. Dunham, 30 Mich. 128; Carney v. 8 Barber v. Lyon, 8 Blackf. 215; 
 
 Newberry, supra; Grymes v. Sanders, Barnett i;. Stanton, 2 Ala. 181; Desha 
 
 93 U. S. 55; Bruce w. Davenport, 1 v. Robinson, 17 Ark. 228; Moore v. 
 
 Abb. Ap. 233; Memphis, &c. Railroad Bare, 11 Iowa, 198; Burge v. Cedar 
 
 V. Neighbors, 51 Missis. 412. Rapids, &c. Railroad, 32 Iowa, 101. 
 
 6 Davis u. Parish, Litt. Sel.Cas. 153; ^ Ante, §682; Brown v. Mahurin, 
 
 McKay v. Carrington, 1 McLean, 50. 39 N. H. 156; Drew v. Claggett, 39 
 
 322 
 
CHAP. XXX.] 
 
 RESCISSION. 
 
 §837 
 
 § 835. Party in Fault. — One abandoning his contract 
 without justification,^ or for whose fault the other party has 
 lawfully rescinded it, stands in a different position. Strictly 
 he can recover nothing, because himself in the wrong. Yet, 
 in exceptional circumstances, this rule may be overcome by 
 the equities of the particular case. As to which, the adjudi- 
 cations are in a measure conflicting ; and the practitioner 
 should carefully examine those of his own State, and proceed 
 with caution.^ 
 
 § 836. All or none. -^ An adverse rescission cannot be for 
 a part of a contract, while the rest is affirmed. It must be for 
 all or none.^ But by mutual consent it may be otherwise.* 
 
 III. Wrongfully, by One Party, the other not consenting. 
 
 § 837. The Power. ^ The limited jurisdiction of the equity 
 tribunals to enforce specific performance of certain contracts 
 constitutes a partial exception to the doctrines of this sub- 
 
 >l. H 431 ; Sherburne v. Fuller, 5 Mass. 
 133, 139 ; Kidder i'. Hunt, 1 Pick. 328; 
 Crossgrove v. Himmelricli, 4 Smith, Pa. 
 203; Fitch v. Casey, 2 Greene, Iowa, 
 300 ; Dill V. Wareham, 7 Met. 438 ; 
 Randlet v. Herren, 20 N. H. 102; Nash 
 V. Towne, 5 Wal. 689; Weatherly v. 
 Higgins, 6 Ind. 73 ; Hickock ». Hoyt, 
 33 Conn. 553 ; Earle v. Bickford, 6 Al- 
 len, 549 ; Byers v. Bostwick, 2 Mill, 74 ; 
 Kimball v. Cunningham, 4 Mass. 502 ; 
 Dubois V. Delaware, &c. Canal, 4 Wend. 
 285 , Barickman v. Kuykendall, 6 Blackf. 
 21; Butts V. Huntley, 1 Scam. 410; 
 Chamberlin v. Scott, 33 Vt 80 ; Canada 
 K. Canada, 6 Cush 15; Feay v. Decamp, 
 15 S. & R. 227; Martin v. Eames, 26 
 Vt. 476; Bayliss v Pricture, 24 Wis. 
 651 ; Wilkie v Womble, 90 N. C. 254 ; 
 Fitzgerald v. Allen, 128 Mass. 232; 
 Warren v. Tyler, 81 111. 15. 
 
 1 Haslack v. Mayers, 2 Duteher, 284 ; 
 Plummer v. Bucknam, 55 Maine, 105; 
 Wooten V. Read, 2 Sm. & M. 585 ; 01m- 
 stead V. Beale, 19 Pick. 528; Rounds v. 
 Baxter, 4 Greenl 454; Faxon v. Mans- 
 field, 2 Mass. 147 ; Ketch um v. Evertson, 
 
 13 Johns. 359, 365; Clark v. School 
 District, 29 Vt. 217 ; Larkin v. Buck, 11 
 Ohio State, 561 ; Robinson i;. Raynor, 
 28 N. Y. 494. 
 
 2 Cardell v. Bridge, 9 Allen, 355; 
 Bee Printing Co. v. Hichborn, 4 Allen, 
 63; Hariston w. Sale, 6 Sm. & M. 634; 
 Clayton v. Blake, 4 Ire. 497 ; Britton v. 
 Turner, 6 N. H. 481 ; Downey v. Burke, 
 23 Misso. 228; Carroll ;;. Welch, 26 
 Texas, 147 ; Pixler v. Nichols, 8 Iowa, 
 106; Patrick v. Putnam, 27 Vt. 759; 
 Cahill V. Patterson, 30 Vt. 592 ; Veazie 
 V. Hosmer. 1 1 Gray, 396 ; Hartwell v. 
 Jewett, 9 N. H. 249 ; Byerlee v. Men- 
 del, 39 Iowa, 382 ; Goodwin v. Merrill, 
 13 Wis. 658; Wade v. Haycock, 1 Ca- 
 sey, Pa. 382 ; Lomax v. Bailey, 7 Blackf. 
 599. 
 
 3 Ante, § 679 ; Wolf v. Dietzsch, 75 
 111. 205; Converse v. Harzfeldt, 11 
 Bradw. 173; Kimball v. Lincoln, 7 
 Bradw. 470; Wolcott v. Heath, 78 111. 
 433; Raymofid v. Bearnard, 12 Johns. 
 274. 
 
 * Borum v. Garland, 9 Ala. 452. 
 
 323 
 
§ 839 IN GENERAL WITH ILLUSTEATIONS. [bOOK I. 
 
 title.^ There appears to be nothing analogous at law.^ And 
 the proposition is sound in principle, and sufficiently sup- 
 ported by authority, though more or less may be found in the 
 books against it, that one party alone, with no consent from 
 the other, who is in no fault, has, at law, the power — not 
 to be exercised without liability for damages, but still the 
 power — to rescind any executory contract. If this were 
 not so, one might be ruined by an undertaking the carrying 
 out of which a change in circumstances rendered highly inex- 
 pedient or practically impossible.^ Thus, — 
 
 § 838. Services for specified Time. — If one employs an- 
 other for an agreed period, but turns him off before it has 
 expired, the latter may recover damages for this breach of 
 contract,* — or, accepting the unauthorized rescission, for 
 what the work is worth,^ — yet he cannot lie by and refuse 
 other employment, and compel payment as though the full 
 services were rendered.® Nor, on an allegation of work done, 
 can he enforce payment for work contracted for, which the 
 defendant would not suffer him to do.'^ Again, — 
 
 § 839. Work on Personalty. — If one delivers an article of 
 
 1 1 Story Eq. § 712-793. Steiren, 8 Wright, Pa. 99; Jones o. 
 
 2 Clark V. Marsiglia, 1 Denio, 317; Jones, 2 Swan, Tenn. 605; Costigan 
 Lord V. Thomas, 64 N. Y. 107, 110. v. Mohawk, &c. Railroad, 2 Denio, 609; 
 
 8 See cases cited to the next four sec- McDaniel v. Parks, 19 Ark. 671 ; Chil- 
 tions ; also Clark v. Marsiglia, supra ; dren of Israel v. Peres, 2 Coldw. 620 ; 
 New Orleans v. Church of St. Louis, 11 Holloway v. Talbot, 70 Ala. 389 ; How- 
 La. An. 244. aid v. Daly, 61 N. Y. 362; Chamberlin 
 
 * Nations v. Cudd, 22 Texas, .'550; v. Morgan, 18 Smith, Pa. 168; Barker 
 
 Fowler v. Armour, 24 Ala. 194 ; Davis v. Knickerbocker, &c. Ins. Co. 24 Wis. 
 
 V. Ayres, 9 Ala. 292 ; Miller v. Goddard, 630. This I understand to be estab- 
 
 34 Maine, 102 ; East Tennessee, &c. lished doctrine, yet it is not recognized 
 
 Railroad ii. Staub, 7 Lea, 397. in all the cases. See, on this question, 
 
 ^ Sherman v. Champlain Transp. Co. besides the above cases, Bradshaw v. 
 
 31 Vt. 162 ; Britt v. Hays, 21 Ga. 157 ; Branan, 5 Rich. 465 ; Cox v. Adams, 1 
 
 Rogers v. Parham, 8 Ga. 190; Carroll Nott & McC. 284 ; Webster «. Wade, 19 
 
 V. Giddings, 58 N. H. 333; Clark v. Cal. 291; Britt i-. Hays, 21 Ga. 157; 
 
 Manchester, 51 N. H. 594; Harris v. Colburn ». Woodworth, 31 Barb. 381 ; 
 
 Separks, 71 N. C. 372 ; Ralston v. Kohl, Byrd v. Boyd, 4 McCord, 246 ; Fuller v. 
 
 30 Ohio State, 92. And see Moulton v. Little, 61 111. 21 ; Isaacs c. Davies, 68 
 
 Trask, 9 Met. 577. Ga. 169. 
 
 6 Ricks V. Yates, 5 Ind. 115; Prich- ' Moore v. Nason, 48 Mich. 300; 
 
 ard V. Martin, 27 Missis. 305 ; Sherman Weed v. Bnrt, 78 N. Y. 191. See 
 
 w. Champlain Transp. Co. supra; Wal- Mitchell v. Scott, 41 Mich. 108. 
 worth V. Pool, 4 Eng. 394; King v. 
 
 324 
 
CHAP. XXX.] RESCISSION. § 842 
 
 personal property — for example, a painting — to another, 
 who undertakes to do certain specified work upon it, he 
 is still entitled, even after it has been commenced, to coun- 
 termand the order, in violation of his contract, yet under 
 liability for damages ; so that, should the other persist in 
 doing what he had agreed, and do it, he cannot recover com- 
 pensation therefor.^ In this case, it is perceived, the party 
 against whom the rescission is wrongfully made, being in 
 possession of the article, has the manual power to carry out the 
 cont]'act ; yet the law does not permit him. A fortiori, — 
 
 § 840. "Work on Realty. — One, after contracting to do 
 something to the real estate of another, who as possessor 
 has the right to order him away, and after the latter's wrong- 
 ful rescission, cannot effectually perform. For example, if 
 the bargain is to put in a gas generator, then the party em- 
 ploying forbids, the other is not entitled to go on with the 
 steps in his power, and sue as on a completed contract. His 
 remedy is simply to recover what he has suffered from not 
 being permitted to fulfil.^ In these cases, — 
 
 § 841. Duty of Party not in Fault. — A party who receives 
 from the other a notice of rescission is, while entitled to dam- 
 ages should it proceed from the other's mere pleasure or 
 necessities, still not justifiable in allowing anything further 
 to be done to bring needless expense. He is even to take 
 affirmative action, if the interests growing out of the re- 
 scinded contract require.^ 
 
 § 842. The Doctrine of this Chapter restated. 
 
 By mutual consent, persons who have made a contract can 
 unmake it; but one, without the concurrence of the other, 
 
 > Clark V. Marsiglia, 1 Denio, 317. ^ Butler v. Butler, 77 N. T. 472. 
 The opinion in this case is brief ; it cites And see New England Iron Co. v. Gil- 
 no authorities, but in legal argumenta- bert Elev. Railroad, 91 N. Y. 153; Marsh 
 tion it is conclusive. And see Park v. v. McPherson, 105 TJ. S. 709 ; Smith v. 
 Kitchen, 1 Misso. Ap. 357 ; Zuck v. Mc- Wheeler, 7 Oregon, 49. 
 Clure, 2 Out. Pa. 541 ; Eckenrode v. ' Dillon v. Anderson, 43 N. Y. 231 ; 
 Canton Chemical Co. 55 Md. 51 ; Lord Strauss v. Meertief, 64 Ala. 299, 307, 
 V. Thomas, 64 N. Y. 107; Smith v. 308; Chamberlin w. Morgan, 18 Smith, 
 O'Donnell, 8 Lea, 468. Pa. 168. 
 
 325 
 
§ 842 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 cannot undo what it required two to do. Still one alone can 
 break a contract, by becoming disqualified to perform it, or 
 by refusing. And, though some of the cases seem to hold 
 that, after such refusal or disqualification, and even after 
 notice to the other party that the CQntract will not be per- 
 formed, the latter may elect to treat it as continuing, this is 
 contrary to sound reason, to natural justice, and the better 
 adjudications. At law, a party who has broken his agreement 
 will be liable to the other to the extent of what has been 
 suffered, and no more. In equity, there are circumstances 
 in which a specific performance may properly be, and is, 
 enforced. 
 
 After a contract has been broken, whether by an inability 
 to perform it, by a rescinding against right, or otherwise, 
 the party not in fault may sue the other -for the damages 
 suffered ; or, if the parties can be placed in statu quo, he may, 
 should he prefer, return what he has received, and recover in 
 a suit the value of what he has paid or done. The pursuing 
 of the latter alternative is called rescission. 
 326 
 
CHAP., XXXI.] RATIFICATION AND EELEASB. §845 
 
 CHAPTER XXXI. 
 
 RATIFICATION OB AFFIRMANCE OF THE CONTRACT AND 
 RELEASE THEREFROM. 
 
 § 843. Introdaction. 
 844-849. Ratification or Affirmance. 
 850-857. Release by Oral or Written Words. 
 858-866. Release by Death. 
 867-878. Otherwise by Operation of Law. 
 879. Doctrine of Chapter restated. 
 
 § 843. How Chapter divided. — We shall consider, I. The 
 Ratification or Affii-mance of the Contract ; II. Release from 
 the Contract by Oral or Written Words ; III. Release from 
 the Contract by Death ; IV. Release otherwise by Operation 
 of Law. 
 
 I. The Ratification or Affirmance of the Contract. 
 
 § 844. Nature of Doctrine — (Electiou and Waiver). — The 
 doctrine of ratification is a branch of that of election and 
 waiver, treated of in a preceding chapter.^ It may be stated 
 to be that, since one who is entitled to choose between alter- 
 native steps is bound by his election when he has duly sig- 
 nified it, if a party who may either repudiate or affirm a 
 contract ratifies it hj a sufficiently significant act,^ he cannot 
 afterward recede.^ 
 
 §845. Here — ^Elsewhere. — It is proposed in this sub-title 
 simply to take a condensed, general view of the subject. We 
 have seen something of it in our examinations of fraud,* and 
 
 1 Ante, § 777 et seq. 124 ; Skinner v. Dayton, 19 Johns. 513, 
 
 2 Doughaday v. Crowell, 3 Stock. 542, 554. 
 
 201 ; Dodge B.Lambert, 2 Bosw. 570. * Ante, § 683. 
 
 8 Walter v. James, Law Rep. 6 Ex. 
 
 327 
 
§ 849 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 in Other connections.^ It will likewise come before us, fur- 
 ther on, at places referred to in the note.^ 
 
 § 846. Voidable — Void. — Strictly, only a voidable con- 
 tract admits of ratification, a void one does not.^ But we 
 have seen that, by an act analogous to ratification, a new 
 and valid contract may, where there is a consideration 
 for it, be made in substitution of one which was void.* 
 So,— 
 
 §847. Estoppel — (Forgery). — Though a forged contract 
 is void, if the injured party acknowledges its genuineness 
 under circumstances which require him to speak truly ,^ he 
 will thereupon be estopped to contest its validity ; so that 
 practically this will amount to an affirmance.® But in a case 
 not within the rule of estoppel, and not evolving a new con- 
 tract,^ there can be no ratification, — a proposition sound in 
 principle and sustained by the better authorities,^ yet not 
 quite unanimously.^ Again, — 
 
 § 848. Capacity to ratify — (Knowledge). — Only a party 
 having the capacity to make the contract as an original one 
 can ratify it.^" Nor can there be a ratification except with 
 knowledge of the facts.^' 
 
 § 849. Effect. — As between the parties, and subject to 
 intervening rights of third persons, and possibly also to some 
 
 1 Ante, § 286, 542, 614, 620, 679. 79 Ky. 479 ; Cohen v. Teller, 12 Noms, 
 
 2 Post, § 936-94.5, 974, 975, 986, 995, Pa. 123. 
 1091-1110, 1225, 1226. ' Ante, § 846. 
 
 * Ante, § 542, 614, 620; Workman * Workman ii. Wright, 33 Ohio 
 V. Wright, 33 Ohio State, 405 ; PearsoU State, 405 ; Brook v. Hook, Law Eep. 
 V. Chapin, 8 Wright, Pa. 9 ; Brook v. 6 Ex. 89 ; McHugh v. Schuylkill, 17 
 Hook, Law Rep. 6 Ex. 89, 99 ; Mat- Smith, Pa. 391. 
 
 thews V. Baxter, Law Rep. 8 Ex. 132; ' Greenfield Bank v. Crafts, 4 Allen, 
 
 Day V. McAllister, 15 Gray, 433. This 447. 
 
 proposition is axiomatic ; and, though ^^ I" I'e Empress Eng'g Co. 16 Ch. 
 
 sustained by the authorities, it does not !>■ 125, 128, 130 ; Kelner v. Baxter, 
 
 reqnire them. For the assertion that a I-aw Eep. 2 C. P. 174, 185 ; Cook v. 
 
 contract is susceptible of ratification only TuUis, 18 Wal. 332 ; MoCracken v. San 
 
 particularizes how it is voidable, not void; Francisco, 16 Cal. 591. 
 
 in other words, has some efiect. Ante, " Ante, § 783, 799 ; Savery v. King, 
 
 § 611, 617, 620. 5 H. L. Cas. 627 ; Billings v. Morrow, 
 
 * Ante, § 542 ; Decuir v. Lejeune, 15 7 Cal. 171 ; Mtaa. Ins. Co. v. North W. 
 La. An. 569. Iron Co. 21 Wis. 458 ; Owings ». Hull, 
 
 6 Ante, § 288, 290, 291, 294, 296. 9 Pet. 607, 629; Seymour v. Wyckoff, 
 
 « Ante, § 295; Rudd v. Matthews, 6 Selden, 213. 
 328 
 
CHAP. XXXI.] RATIFICATION AND EELEASE. § 852 
 
 other qualifications, the effect of the ratification is retrospec- 
 tive, making the contract good from the beginning.^ 
 
 II. Release from the Contract by Oral or Written Words. 
 
 § 850. Meanings of Term. — The word " release " is variable 
 in meaning. In some connections, it d'enotes a form of con- 
 veyance ; 2 being, says Blackstone, " a discharge or convey- 
 ance of a man's right in lands or tenements, to another that 
 hath some former estate in possession."^ It is likewise em- 
 ployed to signify the surrender, in any manner, of any claim 
 or right.* And there may be release as well by operation of 
 law as by express words.^ Between these extremes there are 
 various intermediate meanings. 
 
 § 851. Seal — Consideration. — It has already been ex- 
 plained that either the release must be under seal, which 
 imports a consideration," or there must be for it a considera- 
 tion in fact. And the nature of such consideration has been 
 pointed out.^ Intimations or rulings, occasionally met with 
 in the books, that there can be no release except under seal,* 
 are equally void of foundation in principle and contrary to 
 the prevailing course of adjudication.* Beyond this, — 
 
 § 862. Adaptability — Grade. — In the older books, and 
 sometimes in the later, we find such intimations as that " the 
 defeasance," whether by release or otherwise, "must be by 
 matter as high as the instrument to be defeated ; " i" so that, 
 for example, an obligation created by deed can be released 
 
 1 Ancona v. Marks, 7 H. & N. 686, ' Ante, § 119; Lowe u. "Weatherley, 
 8 Jur. N. 8. 516; Cook v. Tullis, 18 4 Dev. & Bat. 212 ; Union Bank w. Call, 
 Wal. 332 ; Waller v. Logan, 5 B. Monr. 5 Fla. 409. 
 
 515. '< Ante, § 50-55 ; Miller v. Hemler, 
 
 2 Hall V. Ashby, 9 Ohio, 96. 5 Watts & S. 486 ; Kidder v. Kidder, 9 
 8 2 Bl. Com. 324. Casey, Pa. 268. 
 
 * Co. Lit. 264, 292; Hall v. Kirby, ^ 2 Chit. Con. 11th Am. ed. 1145; 
 
 2 Tij. 217 6 ; Hancock v. Pield, Cro. Rowley v. Stoddard, 7 Johns. 207 ; De 
 
 Jac. 170; Carthage v. Mauby, 2 Show. Zeng v. Bailey, 9 Wend. 336; Dilling- 
 
 90. " A release is when a man quits or ham v. Estill, 3 Dana, 21; Davis v. 
 
 renounces that which he before had." Bowker, 1 Nev. 487. 
 
 Com. Dig. Release, A, 1. " See further, post, § 874. 
 
 ' Co. Lit. 264 4; 2 Chit. Con. 11th w 2 Saund. Wms. ed. 47^, note. 
 Am. ed. 1145. 
 
 329 
 
§ 855 IN GENERAli WITH ILLUSTKATIONS. . [BOOK I. 
 
 only by an instrument under seal. But we have seen that 
 the contrary is now the preyailing doctrine ; and an oral dis- 
 charge of a specialty, if on a valid consideration, is effectual.^ 
 The principle is, that words, not in writing, and not under 
 seal, are, where there is a consideration for them, of the same 
 force as written and even sealed words, unless there is some 
 technical rule to the cSntrary;^ and there is no ground for a 
 technical rule requiring a seal in discharge of a sealed instru- 
 ment. A specialty, equally with a simple contract, contem- 
 plates performance without seal ; and the payment of a 
 consideration for a release is a species of fulfilment, within 
 the principle that what is accepted as such is the same as the 
 actual doing.3 So, for the like reason, a contract which a stat- 
 ute requires to be in writing can be orally released.* Still, — 
 
 § 853. Release as a Conveyance. — Since there can be no 
 conveyance of land except by deed,^ a release, to operate as 
 such conveyance, must be under seal.* Again, — 
 
 § 854. Release of Record. — The doctrine that judgments, 
 recognizances, and other debts of record may be released by 
 an instrument under seal ^ is perhaps truly limited, as already 
 said,* to the sealed release. But there is believed to be just 
 ground to question this proposition.^ 
 
 § 855. Existing Debt or Right. — A release can operate only 
 upon what has some actual or potential existence.^" But it 
 will bar a present interest, though to take effect in the 
 future ; ^^ as, a debt not yet due.^ 
 
 1 Ante, § 130, 132, 134. And see 159 ; Barker v. St. Quintin, 12 M: & W. 
 ante, § 772-774. 441 ; Brown v. Feeter, 7 Wend. 301 ; 
 
 2 Ante, § 153. Collier v. Field, 1 Montana, 612 ; Davis 
 8 Ante, §795-797. v. Barkley, 1 Bailey, 140. 
 
 * Ante, § 174, 771 ; Goss k. Nugent, m Baker v. Heard, 5 Exch. 959; 
 5 B. & Ad. 58, 65, 66 ; Cummings v. Drage v. Netter, 1 Ld. Raym. 65 ; Ash- 
 Arnold, 3 Met. 486 ; Stearns v. Hall, 9 ton v. Freestun, 2 Man. & G. 1 ; Hart- 
 Cash. 31. ley u. Manton, 5 Q. B. 247; Carstairs 
 
 5 Ante, § 821 ; post, § 1327, 1331. v. RoUeston, 5 Taunt. 551 ; Porter ». 
 
 6 Co. Lit. 264 6 ; Leviston v. June- Perkins, 5 Mass. 233 ; Pi?rce v. Parker, 
 tion Railroad, 7 Ind. 597; Benjamin v, 4 Met. 80; Laey v. Kinnaston, 3 Salk. 
 McConnell, 4 Oilman, 536. 298. 
 
 '' Ante, § 146 ; Barker v. St. Quin- " Woods i>. Williams, 9 Johns. 123, 
 
 tin, 12 M. & W. 441. 125. 
 
 * Ante, § 146. '^ Deland v. Amesbury, &c. Manuf. 
 » Brackett v. Winslow, 17 Mass. 153, Co. 7 Pick. 244 ; Hoe's Case, 5 Co. 70 b. 
 
 330 
 
CHAP. XXXI.] RATIFICATION AND BELEASE. § 858 
 
 § 856. How iaterpret. — The books abound in rules for its 
 interpretation, and in meanings given by the courts to par- 
 ticular words in it. But the general rules of construction 
 already stated.^ will for most instances suffice. The intent 
 of the parties should be carefully searched for and followed : ^ 
 as, for example, its effect should be kept within their particu- 
 lar purpose ; ^ or, as expressed by a learned judge, it should 
 be "limited always to that thing or those things which were 
 specially in the contemplation of the parties." * One of the 
 consequences of which is, that a claim whereof they were 
 ignorant wiU not be cut off by the release.^ Another is, that 
 words of release will be made to operate as a grant, when 
 otherwise the intent would fail.® 
 
 • § 867. Not to Sue. — A covenant perpetual not to sue the 
 releasee is a quasi release, operative between the parties, — a 
 construction made to " avoid circuity of action." '^ But the 
 courts have taken the distinction, that such covenant limited 
 in time wiU not thus bar the suit.^ More of this will appear 
 under our fourth sub-title.^ 
 
 III. Release from the Contract by Death. 
 
 § 858. No contracting after. — A dead person cannot enter 
 into a contract.^* For example, a deed to him conveys 
 nothing.^^ Again, — 
 
 1 Ante, § 365 et seq. Pick. 80; Edwards v. Baileyj Cowp. 597, 
 
 " Ante, § 380 ; Rich v. Lord, 18 Pick. 600. Compare with ante, § 391, 395. 
 
 322,325. ' Cuyler v. Cuyler, 2 Johns. 186; 
 
 ' Seymour v. Butler, 8 lotwa, 304; Harrison v. Close, 2 Johns. 448; Eose- 
 
 Payler ». Homersham, 4 M. & S. 423. velt v. Stackhouse, 1 Cow. 122, 126; 
 
 * Lord Westbary in London, &c. Marietta Sav. Bark v. Janes, 66 Ga. 
 
 Railway v. Blackmore, Law Rep. 4 286; Ford w. Beech, 11 Q. B. 852, 871 ; 
 
 H. L. 610, 623. Walker v. McCulloch, 4 Greenl. 421 ; 
 
 s Turner v. Turner, 14 Ch. D. 829. Harvey v. Harvey, 3 Ind. 473. 
 
 See Hyde v. Baldwin, 17 Pick. 303, » Deux v. Jefiferies, Cro. Eliz. 352; 
 
 307 ; Pierson v. Hooker, 3 Johns. 68, AylifF v. Scrimsheire, 1 Show. 46 ; s. c. 
 
 70. Of course, if the form of the expres- nora. Ayloffe v. Scrimpshire, Carth. 63 ; 
 
 sion indicates the intent to discharge Thirableby v. Barron, 3 M. & W. 210. 
 
 such a claim shonld any be discovered, ' Post, § 872. 
 
 it will be giveti that effect. *" Bank of Port Gibson v. Baugh, 9 
 
 6 Hastings v. Blue Hill Turnpike, 9 Sm. & M. 290; Halton i;. Simmell, 43 
 
 " Hunter v. Watson, 12 Gal. 363. 
 
 331 
 
§ 861 IN GENERAL WITH ILLUSTHATIONS. [BOOK I, 
 
 § 869. Party to Suit. — One, after death, cannot bring or 
 defend a lawsuit.^ And, under the common-law rules, the 
 death of a party abates the suit.^ Yet we have statutes 
 under which the representative of one deceased may be sub- 
 stituted and prosecute or defend the cause in his stead. 
 Still,— 
 
 § 860. Power to bind the Estate. — It is competent for a living 
 person to make a contract which, on his death, can be en- 
 forced against his estate in the hands of executors or admin- 
 istrators.^ This doctrine has its limits,* into which we need 
 not here inquire. But it is always a question whether a 
 contract is to be construed as extending beyond the life, or 
 as terminating at death. Its solution will not depend alto- 
 gether on the words employed ; but equally or more on 
 the- I 
 
 § 861. Nature of the Transaction. — We have seen that a 
 contract is terminated by the destruction of the thing con- 
 tracted about ;^ within which principle, a party's death ends an 
 agreement for his personal services.* But an undertaking, in 
 the same terms, to render services which caii as well be done 
 by proxy as in person, and not involving personal confidence, 
 may be enforced against the estate of the deceased party .^ A 
 familiar illustration of personal confidence is the relation of — 
 
 Texas, 58.'5. There are readers who ' Clay v. Oxford, Law Rep. 2 Ex. 
 
 deem it puerile for an author to lay down 54 ; McCreery v. Everding, 44 Cal. 
 
 a proposition so simple and obvious. 284. 
 
 But the more simple and obvious a 2 Green v. Watkins, 6 Wheat. 260 ; 
 proposition is, the more apt are some to Livingston v. Kendall, 59 Barb. 493 ; 
 overlook it. I remember that once a Wallop v. Irwin, 1 Wils. 315. 
 very good lawyer advised a widow client, ' Powell v. Graham, 7 Taunt. 580 ; 
 whose husband had been a partner with Eoss v. Hardin, 79 N. Y. 84, 91 ; Brad- 
 persons still living, that she must get bury v. Morgan, 1 H. & C. 249, 8 Jur. 
 them to advertise the dissolution of the N. s. 918. 
 firm, to save the deceased or herself * Ante, § 441-443. 
 harmless from future debts of their con- ' Ante, § 588. 
 tracting I Nor would he be convinced * Ante, § 600, 601 ; Baxter v. Bur- 
 of his error ; he persevered in it and still field, 2 Stra. 1266 ; Stubbs v. Holywell 
 insisted, till the thing, for the sake of Railway, Law Rep. 2 Ex. 311. 
 peace, had to be done — and it was 7 Ante, § 603 ; Wentworth v. Cock, 
 done! Moreover this question appears 10 A. & E. 42; Werner v. Humphreys, 
 to have been seriously agitated in Vul- 3 Scott N. R. 226, 2 Man. & G. 853; 
 liamy v. Noble, 3 Meriv. 593. And see Quick v. Ludborrow, 3 Bulst. 29, 30. 
 Holme V. Hammond, Law Rep. 7 Ex. 218. 
 
 332 
 
CHAP. XXXI.] RATIFICATION AND RELEASE. 
 
 § 862. Partnership. — A partnership is prima facie pre- 
 sumed to have been entered into by reason of the particular 
 confidence of each partner in the fitness and capacity of the 
 other ; hence, in the absence of anything appearing to the 
 contrary, the death of either dissolves it, even where the time 
 limited by agreement for its continuance has not expired.^ 
 But this rule may be varied by an express stipulation in the 
 partnership contract.^ 
 
 § 863. Joint. — It is a familiar doctrine of the common law 
 that joint ownership of either real or personal property, when 
 of the intimate sort termed joint tenancy, is not severed by 
 , death ; but, when one of the owners dies, his interest goes to 
 the survivor or survivors, and nothing to the heir or adminis- 
 trator, until the death of the last joint owner, then all vests 
 in the latter's heir or administrator.^ And, by the unmodified 
 common law, a contract, both as to its burdens and its bene- 
 iSts, is property within this rule. The consequence of which 
 is, that, where two or more persons are parties on the same 
 side, and the promise by or to them is joint, — the ordinary 
 case of a joint contract, — the death of one joint party trans- 
 mits both his interest and his burdens, not to his administrator, 
 but to his living fellow parties on the same side with him- 
 self. They may sue or be sued on it ; but the administrator 
 can neither be joined as a party with them, nor sue or be sued 
 alone. This rule extends equally to ordinary joint contractors 
 and to partners.* And, if a second one dies, the same rule 
 applies so long as there is a survivor ; but, when there has 
 ceased to be a survivor, all goes to the administrator of the 
 one who died last.^ In other words, by the unmodified com- 
 
 1 Williamson v. Wilson, 1 Bland, * Walker v. Maxwell, I Mass. 104, 
 418,424,425; Gillespie v. Hamilton, 3 113; Smith u. Franklin, 1 Mass. 480; 
 Madd. 251 ; Bank of Scotland v. Chris- Calder v. Rutherford, 3 Brod. & B. 302; 
 tie, 8 CI. & F. 214. Rolls v. Yate, Yelv. 177 ; Anderson v. 
 
 2 Pemberton v. Oakes, 4 Euss. 154; Martindale, 1 East, 497 ; Chandler v. 
 Bnrwell v. Cawood, 2 How. U. S. Hill, 2 Hen. & M. 124 ; Richards v. 
 560 ; Powell V. Hopson, 13 La. An. Heather, 1 B. & Aid. 29 ; Hedderly v. 
 626 ; Scholefield v. Eichelberger, 7 Pet. Downs, 31 Minn. 183 ; Daby v. Ericsson, 
 586, 594 ; Walker v. Wait, 50 Vt. 45 N. Y. 786 ; Martin v. Crompe, I Ld. 
 668. Raym. 340; Jell i'. Donglas, 4 B. & 
 
 » 2 Bl. Com. 183, 184, 399 ; 4 Kent Aid. 374. 
 Com. 360. ' KoUs V. Yate, supra ; Stowell v. 
 
 333 
 
§ 864 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 mon law, the death of a party to a joint contract, while others 
 on the same side with him still live, terminates both his 
 rights and his duties under it, and transmits them to his 
 associates. But the equity tribunals, and with us the stat- 
 utes, have together either abrogated this rule or created 
 considerable — 
 
 §864. Modifications of the Doctrine. — Courts of equity, 
 under their jurisdiction to correct mistakes, sometimes, or 
 where express words do not forbid, treat the joint contract as 
 several, and thus transmit a right or obligation to the adaiin- 
 istrator of the deceased party. In cases of partnership, they 
 always do this.^ And in still other cases and ways they mol- 
 lify the harshness of the common-law doctrine,^ — questions 
 into which it is not proposed here minutely to inquire. Even 
 courts of law, without the aid of any statute, occasionally 
 mitigate the common-law rule ; as, by enforcing contribution 
 between the administrator and the survivor.^ Thus, Parsons 
 observes, that " Bachelder v. Fiske * was perhaps the earliest 
 case where the executor of a deceased co-debtor was held 
 liable at law for contribution. The court there met the 
 technical objections that were raised, with the maxim, Ubi 
 Jus ibi remedium.'" ^ Probably this case could never, without 
 the aid of a statute, be accepted for universal doctrine ; be- 
 cause, as explained in the last section, the law of the com- 
 mon-law courts recognizes in such circumstances no jus, hence 
 it can allow no remedium. But statutes, varying in our States, 
 therefore not to be set out or expounded here, have either 
 overturned or greatly changed the old doctrine. The prac- 
 titioner should carefully search for those of his own State.? 
 A word may be desirable as to the special case of a -^ 
 
 Drake, 3 Zab. 310; Gere v. Clarke, 6 Batard v. Hawes, 2 Ellis & B. 287; 
 
 Hill, N. T. 350. Prior v. Hembrow, 8 M. & W. 873. 
 
 1 1 Story Eq. § 162-164; Sumner * Bachelder w. Fiske, 17 Mass. 464. 
 V. Powell, 2 Meriv. 30 ; Beresford v. ^ 1 Pars. Con. 32, note. 
 Browning, 1 Ch. D. SO. « Eandall v. Sackett, 77 N. Y. 480; 
 
 2 Gere v. Clarke, 6 Hill, N. T. Richardson ». Draper, 87 N. Y. 337; 
 350. Devol t). Hftlstead, 16 Ind. 287; Knox 
 
 ' Mowry v. Adams, 14 Mass. 327 ; County Sav. Bank v. Coltey, 70 Misso. 
 Williams w. Moore, 9 Pick. 432 ; Stothoff 150 ; Greathouse a. Kline, 93 Ind. 598 ; 
 V. Dunham, 4 Harrison, 181. And see Louis v. Triscony, 58 Cal. 304. 
 
 334 
 
CHAP. XXXI.] RATIFICATION AND RELEASE. § 868 
 
 § 865. Surety. — Where the form of the surety's under- 
 taking was a joint promise with the principal debtor, the 
 creditor, it is perceived, lost on the surety's death his claim 
 against him at law. In this case, the courts of equity de- 
 clined, for a technical reason, to give relief ;i so that, to 
 every intent and purpose, the death of such surety discharged 
 him .2 The South CaroKna court has refused to accept this 
 doctrine,* perhaps some other courts also, and there are States 
 in which it has been abrogated by statute.* 
 
 § 866. Several, or Joint and Several. — Where the obliga- 
 tion or the right, instead of being joint, is either several or 
 joint and several, it descends on a party's death to his 
 administrator.^ 
 
 IV. Release otherwise hy Operation of Law. 
 
 § 867. Doctrine defined. — The doctrine of this sub-title is, 
 that whenever, by the course of procedure in court, or by 
 any rule of law, a party may so avail himself of a release to 
 another,® or of any other collateral matter, as to prevent judg- 
 ment being rendered against him, he is thereby released by 
 operation of law. Thus, — 
 
 § 868. Several Parties on a Side. — Where there are two or 
 more promisors or promisees, a transaction with one of them 
 may or may not, according to its nature, preclude a judgment 
 for or against another or the rest. If it does have this effect, 
 it is a release by operation of law. The authorities appear a 
 little obscure, and there may be cases not rightly decided ; 
 but, if we look a little below the surface into the reasons 
 which govern this sort of question, we shall find the line dis- 
 tinguishing the two classes fairly plain, and all will seem 
 comprehensible and just. 
 
 ' 1 Story Eq. § 164. ardson ». Draper, supra ; StothofE v. 
 
 2 Davis V. Van Buren, 72 N. Y, 587, Dunham, 4 Harrison, 181 ; Mowry v. 
 
 589 ; Wood v. Fisk, 63 N. Y. 245 ; Adams, 14 Mass. 327 ; Williams v. 
 
 "Waters w. Riley, 2 Har. & G. 305 ; Rich- Moore, 9 Pick. 432. 
 ardson v. Draper, 87 N. Y. 337. ^ Tippins v. Coates, 18 Beav. 401 ; 
 
 ' Susong V. VaiJen, 10 S. C. 247. Church p. King, 2 Myl. & C. 220. 
 
 * Randall v. Sackett, 77 N. Y. 480. « Ante, § 241. 
 
 And see, on this general question, Rich- 
 
 335 
 
§ 870 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 § 869. Release of Joint Promisor. — One to whom two or 
 more persons have made a joint promise or covenant is, on its 
 breach, required by the course of judicial procedure to sue 
 all jointly if all are of full age ' and alive ;^ and, should he 
 proceed against a less number, his suit, if properly defended, 
 will fail.^ So that all can avail themselves of a release to any 
 one ; whence the rule, that the release of one discharges all,* 
 — a rule which perhaps ordinarily, yet not always, prevails 
 as well in equity as at law.® 
 
 § 870. Joint and Several Promisors — (Further of Joint). — 
 Where the promises or covenants are joint and several instead 
 of joirit, the reasoning is a little different. The party suing may 
 elect to proceed against one or each singly, or jointly against 
 all, but not against more than one and less than all.^ If, there- 
 fore, he sues one, the mere fact that he has not joined another 
 defendant is not, as in the case of a joint undertaking, an 
 obstacle to his recovering judgment. But if one who might 
 have been made a joint defendant has paid the debt, it is dis- 
 charged, and there can be no judgment against another.^ 
 Death, we saw under our last sub-title, is not, in these cases 
 of joint and several, the equivalent of payment ; so it does 
 not operate to discharge either the living person or the estate 
 of the deceased.* But other things may be equivalents ; " as, 
 if two men be jointly and severally bounden in an obligation, 
 if the obligee release to one of them, both are discharged." ^ 
 
 1 Cntts V. Gordon, 13 Maine, 474. « Bower v. Swadlin, 1 Atk. 294. 
 
 See post, § 871. Bat see The State v. Matson, 44 Misso. 
 
 " Cabell V. Vaughan, 1 Saund. Wms. 305. 
 ed. 291 and note; Douglas v. Chapin, « Streatfield ». Halliday, 3 T. E. 779, 
 
 26 Conn, 76 ; Bragg v. Wetzel, 5 Blaekf. 782 ; Bangor Bank v. Treat, 6 Greenl. 
 
 95. 207; Claremont Bank v. Wood, 12 Vt. 
 
 ' Livingston v. Tremper, 11 Johns. 252. 
 101 ; Tuttle V. Cooper, 10 Pick. 281 ; ' Whltcomb v. Whiting, 2 Doug. 
 
 ShiiTeffo.Wilks, 1 East,48; Walcott w. 6.52; Griffin v. Thomas, 21 Ga. 198; 
 
 Canfield, 3 Conn. 194 ; Hall v. Roches- Tuckerman v. Sleeper, 9 Cash. 177, 180; 
 
 ter, 3 Cow. 374. But see Bragman v. Boggs v. Lancaster Bank, 7 Watts & S. 
 
 McGuire, 32 Ark. 733. 331 ; Beaumont v. Greathead, 2 C. B. 
 
 * Lacy V. Kinnaston,-3 Salk. 298; 494; Morrow ». Starke, 4 J. J. Mar. 
 
 Rex V. Bayley, 1 Car. & P. 435 ; Rowley 367 ; Wallace v. Kelsall. 7 M. & W. 264; 
 
 V. Stoddard, 7 Johns. 207; Willings v. Husband v. Davis, 10 C. B. 645. 
 Consequa, Pet. C. C. 301 ; Campbell ». ' Ante, § 866. 
 
 Brown, 20 Ga. 415. 9 Co. Lit. 232 a. 
 
 336 
 
CHAP. XXXI.] HATIFICATION AND RELEASE. § 872 
 
 Therefore substantially, if not minutely, the result is the 
 same where the promise is joint and several as where it is 
 joint. And the books commonly state the rule without dis- 
 crimination to be, that the release of one joint or joint and 
 several promisor is a release of all.^ But, — 
 
 § 871. Discharge by Iia-w — (Bankruptcy — Limitations — 
 Infancy). — Where the law releases a party, it limits the 
 effect to the very person, so that neither a joint nor a joint 
 and several promisor is discharged. Thus it is, for example, 
 if one of two or more such promisors is freed in bankruptcy,^ 
 or by the Statute of Limitations ; ^ and, in these cases, the 
 technical rules above stated are not applied. Consequently, 
 though all the original promisors are joined as defendants, 
 there may be judgment in favor of some and against others.* 
 It is so also where an infant is sued with adults ; if he relies 
 on the privilege which the law gives him and sets up infancy 
 in defence, there may be judgment for him and against his 
 co-defendants, or the plaintiff may discontinue as to him and 
 recover his demand of the others.^ Again, — 
 
 § 872. Covenant not to Sue. — A covenant by the creditor 
 not to sue one joint or joint and several debtor is a different 
 thing from a release. We have seen that such a covenant, if 
 perpetual, will be permitted to bar the covenantor's suit 
 against the covenantee where there are no other parties liti- 
 gant, because thereby circuity of action is avoided.^ But 
 this reason shows, what is settled in authority, that such 
 covenant is not properly a release, that it will not avail the 
 
 1 Line v. Nelson, 9 Vroom, 358 ; * Cobum v. Ware, supra ; Ward v. 
 Tuckerraan v. Newhall, 17 Mass. 581, Johnson, 13 Mass. 148, 152. 
 
 583 ; American Bank v. Doolittle, 14 ' Hartness v. Thompson, 5 Johns. 
 
 Pick. 123, 126 ; Rowley v. Stoddard, 7 160; Robertson v. Smith, 18 Johns. 459, 
 
 Johns. 207, 210. 478 ; Tuttle v. Cooper, 10 Pick. 281, 
 
 2 Cobum V. Ware, 25 Maine, 330; 292; Woodward u. Newhall, 1 Pick. 500. 
 Bowery Sav. Bank v. Clinton, 2 Sandf. As to this point of the text, the reader 
 113 ; Turner v. Esselman, 15 Ala. 690 ; will find in the decisions some differences 
 Gamett v. Roper, 10 Ala. 842 which it will be well not to overlook. 
 
 " Fannin v. Anderson, 7 Q. B. 811 ; As to the English doctrine, see Boyle v. 
 
 Spaulding v. Ludlow, &c. Mill, 36 Vt. Webster, 17 Q. B. 950. 
 150; Bruce v. Flagg, 1 Dutcher, 219; ^ Ante, § 857. 
 
 Denny v. Smith, 18 N. T. 567 ; Cutler 
 V. Wright, 22 N. Y. 472, 477. 
 
 22 337 
 
§ 874 IN GENERAL WITH ILLUSTBATIONS. [BOOK I. 
 
 co-promisor, and that it cannot be set up if he also is a 
 defendant.^ Within this principle, — 
 
 § 873. Release with Reservations. — Since it accords with 
 the course of judicial procedure to admit into the record of a 
 cause, by a sort of fiction,^ persons as parties who have no 
 interest in it, when thereby the rights of the real parties will 
 be promoted, it is competent for a debtor to release a joint 
 creditor with the proviso that a suit may be prosecuted 
 against him and the rest for the creditor's benefit, execution 
 not to be collected out of his property. Such a release is 
 the exact equivalent of a covenant not to sue. It does not 
 bar a suit, but it gives a right of action for any violation of 
 the terms of the proviso. And words less explicit will be 
 construed in this way when such is the evident meaning. 
 Not all the cases reason out the result quite in this form, but 
 so in effect are all.^ Now, — 
 
 § 874. Under Seal or not. — Out of imperfect apprehensions 
 of the doctrine just stated, has, it is believed, grown the 
 proposition, certainly unsound in principle, yet broadly af- 
 firmed by some of the judges, that, for a release to bar the 
 claim against a co-promisor, it must be what they term a 
 technical one under seal.* The reason for which was stated 
 by a very learned judge to be, " because " the agreement 
 not under seal " does not extinguish the debt." ^ And 
 plainly any writing which does not, by whatever name called, 
 must be ineffectual in answer to a suit against any one, 
 whether a party to it or not; as, for example, a writing not 
 under seal and founded on no consideration.^ So, as we have 
 
 1 Walker v. McCulloch, 4 Greenl. Thompson v. Lack, 3 C. B. 540 ; Price 
 421, 426 ; Winston v. Dalhy, 64 N. C. v. Barker, 4 Ellis & B. 760, 777. 
 
 299 ; Rowley v. Stoddard, 7 Johns. 207, * Ante, § 851 ; De Zeng v. Bailey, 9 
 
 210; Hutton u. Eyre, 6 Taunt. 289, 294 ; Wend. 336; Shaw v. Pratt, 22 Pick. 
 
 Dean u. Newhall, 8 T. R. 168; Crane w. 305; Armstrong v. Hayward, 6 Cal. 
 
 Ailing, 3 Green, N. J. 423. 183; Drinkwater v. Jordan, 46 Maine, 
 
 2 Ante, § 182. 432 ; Rowley u. Stoddard, 7 Johns. 207; 
 8 Solly r. Forbes, 2 Brod. & B. 38 ; Line v. Nelson, 9 Vroom, 358. 
 
 Bowneu. Mount Holly Bank, 16 Vroom, * Shaw, C. J. in Pond u. Williams, 
 
 360 ; Parmelee t'. Lawrence, 44 111. 405 ; 1 Gray, 630, 636 ; 8. p. Gold Medal Sew. 
 
 Burke v. Noble, 12 Wright, Pa. 168; Mach. v. Harris, 124 Mass. 206, 208. 
 Williams v. Hitchings, 10 Lea, 326 ; 6 Ante, § 851 ; Smith v. Bartholo- 
 
 North V. Wakefield, 13 Q. B. 536; mew, 1 Met. 276. 
 
 338 
 
CHAP. XXXI.] RATIFICATION AND RELEASE. § 875 
 
 seen,^ the payment of a part of an entire sum is a discharge 
 only of the part, whatever the unsealed understanding between 
 the parties.2 Therefore, if one of two joint promisors makes 
 such payment, neither can avail himself of it beyond the sum 
 paid, though by a writing not under seal there is a formal 
 release in fuU.^ But our expositions in the chapter on the 
 " Consideration " show, that a payment in something besides 
 money, accepted in full, operates otherwise ; for the parties' 
 valuation of the thing will not, in the absence of fraud, be 
 disputed.* Consequently, if one joint promisor makes such 
 payment, the promisee can no more deny its adequacy as 
 being in full, when set up by the other, than when by the 
 party by whom made. Hence, for all purposes, a release with- 
 out seal is, if on a sufficient consideration, equally effective 
 with a sealed one.^ 
 
 § 875. Release by Joint Promisee. — The payment of a debt 
 to one of two persons to whom it is jointly due is effectual.^ 
 Therefore a release by any one of several joint promisees is 
 good as against all.^ For example, one partner's signing and 
 sealing a composition deed bars the partnership claim.^ But 
 a mere covenant not to sue is within explanations already 
 made,^ therefore is without effect except as foundation for a 
 counter action.^" And, in general, if the whole debt has not 
 been paid to one or validly released by him, the others may 
 join him as party plaintiff in a suit to recover what remains 
 due." 
 
 1 Ante, § 50. 8 Met. Con. 125, 126 ; Bruen v. Mar- 
 
 2 Curtiss V. Martin, 20 HI. 657; quand, 17 Johns. 58 ; Smith w. Stone, 4 
 Wheeler i>. Wheeler, 11 Vt. 60; Wil- Gill. & J. 310; Pierson v. Hooker, 3 
 liaras V. Carrington, 1 Hilton, 515. Johns. 68 ; Morse v. Bellows, 7 N. H. 
 
 * Bemis v. Hoseley, 16 Gray, 63. 549 ; Cnitwell v. DeEosset, 5 Jones, 
 
 * Gavin v. Annan, 2 Cal. 494 ; Gaff- N. C. 263 ; McBride v. Hagan, 1 Wend, 
 ney v. Chapman, 4 Eob. N. Y. 275. 326 ; Wells v. Evans, 20 Wend. 251 ; 
 
 5 Ante, § 851 ; Dunham v. Branch, Evans v. Wells, 22 Wend. 324. 
 
 5 Gush. 558, 561 ; Goss v. Ellison, 136 » Ante, § 872. 
 
 Mass. 503. 1" Walmesley v. Cooper, 11 A. & E. 
 
 " Morrow v. Starke, 4 J. J. Mar 367. 216. 
 
 ^ Myrick v. Dame, 9 Cush. 248 ; " Sweigart v. Berk, 8 S. & E. 308 ; 
 
 Wilkinson v. Lindo, 7 M. & W. 81 ; MoGilveiy v. Moorhead, 3 Cal. 267. 
 
 Wild V. Williama, 6 M. & W. 490; And see McNamee v. Carpenter, 56 
 
 Eastman v. Wright, 6 Pick. 316. Iowa, 276. 
 
 339 
 
§ 879 IN GENERAL WITH ILLUSTRATIONS. [BOOK I. 
 
 § 876. Merger — (Specialty — Partners), — by transmuting 
 a contract into something else, may work its termination, 
 though it has not been otherwise performed. It is so, for 
 example, where a specialty has absorbed a parol agreement, 
 as already explained.^ On which principle, if one of several 
 partners gives his individual bond for a simple contract debt 
 of the firm, the creditor who receives it relinquishes thereby 
 his claim against the rest.^ So, — 
 
 § 877. Merger in Judgment. — When any contract or other 
 claim has gone to judgment, it ceases to have a separate ex- 
 istence and is merged therein,^ — a proposition having some 
 qualifications not necessary to be inquired into here.* If, 
 then, the judgment is against one of several joint promisors, 
 the claim against the others is, in the absence of any stat- 
 ute reserving rights, ended.^ But where it is against them 
 severally, or jointly and severally, instead of jointly, a judg- 
 ment against one, to have this effect, must be satisfied.^ 
 
 § 878. Caution. — It should be borne in mind that, on the 
 questions connected with this sub-title, there are in many of 
 our States differing statutory limitations and qualifications. 
 And these questions, like all others in the law, are subject 
 also to be varied by changed facts, whicli bring the particular 
 case outside of the general rule. 
 
 § 879. The Doctrine of this Chapter restated. 
 
 The teachings of this chapter may be classed with the 
 many illustrations, afforded by the law of contracts, of the 
 
 1 Ante, § 129 ; Curson v. Monteiro, Benson v. Paine, 2 Hilton, 552; Ward 
 2 Johns. 308. u. Johnson, 13 Mass. 148; Willings v. 
 
 2 Tom V. Goodrich, 2 Johns. 213 ; Consequa, Pet. C. C. 301, 303 ; Eobert- 
 Banorgees. Hovey, 5 Mass. 11. son v. Smith, 18 Johns. 459; Smith w. 
 
 8 Bangs V. V(''atson, 9 Gray, 211; Black, 9 S. & E. 142 ; Candee ». Smith, 
 
 Clark !). Rowling, 3 Comst. 216 ; Sweet 93 N. Y. 349, 351 ; Clinton Bank v. 
 
 V. Braokley, 53 Maine, 346. Hart, 5 Ohio State, 33. 
 
 * Goodrich v. Bodurtha, 6 Gray, 323 ; 6 McLaurine v. Monroe, 30 Misso. 
 
 Owens 11. Sprigg, 2 Md. 457 ; Davis v. 462 ; Simonds v. Center, 6 Mass. 18 ; 
 
 Anable, 2 Hill, N. Y. 339 ; Fairchild w. Kirkpatrick v. Stingley, 2 Ind. 269; 
 
 Holly, 10 Conn. 474. Oilman v. Foote, 22 Iowa, 560. 
 
 6 McMaster v. Vernon, 3 Duer, 249 ; 
 
 340 
 
CHAP. XXXI.] RATIFICATION AND EELEASE. § 879 
 
 truth that earthly things are unstable and changing. In 
 the commotions of life, and the constant adaptations of the 
 mind to the new facts surrounding it, not even a contract, 
 however solemn, is free from the liability to be made more 
 solemn by affirmance, or to be abrogated by release. It is not 
 deemed necessary to extend this chapter further by travelling 
 again over this ground ; except to say, that, on the one hand, 
 when parties have ratified their contract, neither of them can 
 recede by reason of anything then known to him ; and, on 
 the other hand, release may come from express agreement, 
 from death, or from the operation of the law. 
 
 341 
 
§ 882 
 
 PAETIES AND OTHER PARTAKERS. 
 
 [book n. 
 
 BOOK II. 
 
 THE PARTIES AND OTHER PARTAKERS AS AGENTS 
 OR INTERESTED IN THE CONTRACT. 
 
 CHAPTER XXXII. 
 
 IN GENERAL OP THE PARTIES. 
 
 § 880. Contracting with Self. — As already seen,^ one can- 
 not enter into a contract with himself. If there are apparent 
 exceptions to this rule,^ they are anomalies, resting in spe- 
 cially peculiar reasons. Even — 
 
 § 881. Different Capacities. — A man in a fiduciary relation 
 — for example, a trustee, or an agent to sell or to buy, or 
 the like — cannot, in this capacity, buy of or sell to, or other- 
 wise deal with, himself in his individual capacity.^ Again, — 
 
 § 882. Sue Self. — One cannot sue himself.* Therefore, — 
 
 1 Ante, § 29. 
 
 2 Hall V. Bliss, 118 Mass. 554. As 
 to which see also Whitehead v. Hellen, 
 76 N. C. 99, 100. 
 
 8 Bain v. Brown, 56 N. Y. 285, 288 ; 
 Button w. Winner, 52 N. Y. 312 ; Rogers 
 V. Lockett, 28 Ark. 290 ; Ringo v. Binns, 
 10 Pet. 269 ; Whitcomb v. Minchin, 5 
 Madd. 91 ; Bent v. Cobb, 9 Gray, 397 ; 
 Michoud V. Girod, 4 How. U. S. 503 ; 
 De Caters v. Le Ray de Chaumont, 3 
 Paige, 178 ; Child v. Brace, 4 Paige, 
 309 ; Griffin v. Marine Co. 52 111. 130; 
 Campbell v. Johnston, 1 Sandf. Ch. 
 148 ; Boyd v. Hawkins, 2 Ire. Eq. 304 ; 
 Mathews v. Dragaud, 3 Des. 25 ; Thorp 
 V. McCullum, 1 Gilman, 614 ; Cram v. 
 Mitchell, 1 Sandf. Ch. 251 ; Davis v. 
 
 342 
 
 Simpson, 5 Har. & J. 147; Saltmarsh 
 V. Beene, 4 Port. 283 ; Renew v. Butler, 
 30 Ga. 954; Remick ». Butterfield, 11 
 Post. N. H. 70 ; Rickey v. Hillman, 2 
 Halst. 180; Wright v. Wright, 2 Halst. 
 1 75 ; Sheldon v. Sheldon, 13 Johns. 220 ; 
 Obert V. Hammel, 3 Harrison, 73; Bank 
 of Orleans v. Torrey, 7 Hill, N. Y. 260; 
 Golden v. Walsh, 14 Johns. 407 ; Mc- 
 Carty v. Van Dalfsen, 5 Johns. 43; 
 Tynes v. Grimstead, 1 Tenn. Ch. 508 ; 
 Taussig V. Hart, 58 N. Y. 425; Col- 
 lins V. Tilton, 58 Ind. 374 ; Sti-atford v. 
 Twynam, Jacob, 418. And see Armor 
 V. Cochrane, 16 Smith, Pa. 308. 
 
 * Ante, § 29 ; Hoag v. Hoag, 55 N. H. 
 172. 
 
CHAP. XXXII.] IN GENERAL OF THE PARTIES. § 887 
 
 § 883. Self and Another. — In a common-law court, he can- 
 not be a plaintiff or defendant suing or defending against 
 joint parties, of whom he is one.^ Nor is it different though 
 on the one side he appears in a fiduciary capacity, and on 
 the other side individually.^ Consequently, — 
 
 § 884. More than One. — There can be no contract to 
 which there is but one party ; there must always be more.^ 
 And, — 
 
 § 885. Ascertainable. — When the contract has become com- 
 plete, and at the time when the suit is brought, however the 
 rule may be before, it must be ascertainable who the party 
 is ; though, except by some opinions in specialties,* he need 
 not be named in words, but may be identified by interpreta- 
 tion.^ Often a contract is commenced with something which 
 of itself creates no mutual obligation, and is built up step by 
 step until it becomes complete.® In such a case, the last 
 step may be the one which ascertains the party ; as, for ex- 
 ample, where there is a general offer of a reward for a thing 
 to be done, and a person before unknown does the thing.^ 
 
 § 886. Alive — Non-existing. — Of course, as explained be- 
 fore, the party must be living." And a contract with a mere 
 fictitious person is a nullity;^ nor is it otherwise though 
 the non-existing person or corporation comes afterward into 
 existence. ■'° 
 
 § 887. In Created Contracts. — When the law creates a con- 
 tract,^^ it determines who the parties shall be. For example, 
 it makes the person from whom the consideration moved the 
 promisee.i^ For further illustration, — 
 
 1 McMahon v. Rauhr, 47 N. Y. 67 ; 291 ; Peddie v. Brown, 3 Macq. H. L. 
 Moffatt V. Van MuUingen, 2 Chit. 539 ; Cas. 65, 3 Jur. n. s. 895 ; Holding v. 
 Eheem v. Snodgrass, 2 Grant, Pa. 379. Elliott, 5 H. & N. 117 ; Taylor v.. Hodg- 
 
 2 McElhanon v. McElhanon, 63 111. son, 3 Dowl. & L. 115, 10 Jur. 355. 
 457. s For example, ante, § 87. 
 
 8 Ante, § 29 ; Lycoming Fire Ins. ' Ante, § 330. 
 
 Co. V. Wright, 55 Vt. 526. 8 Ante, § 858. 
 
 * Ante, § 426 ; Sacra v. Hudson, 59 9 Bennett v. Farnell, 1 Camp. 130 ; 
 
 Texas, 207 ; Harrison v. Simons, 55 Douthitt v. Stinson, 63 Misso. 268. 
 
 Ala. 510. l« In re Empress Engineering Co. 16 
 
 5 Ante, § 374 ; Chicago v. Sherwood, Ch. D. 125 ; Glass v. Glass, 71 Ind. 392. 
 
 104111. 549 ; Parrw. Greenbush, 72 N. Y. " Ante, § 181 et seq. 
 
 463 ; Carpenter v. The State, 8 Misso. ^ Morris v. Litchfield, 14 Bradw. 83 ; 
 
 343 
 
§ 891 PARTIES AND OTHER PARTAKERS. [BOOK II. 
 
 § 888. Funeral Expenses. — Within explanations already 
 made,^ if, by reason of the neglect of those whose primary 
 duty it is to cause a dead body to be buried, a third person 
 does it, then, should the executor come into possession of 
 assets, the law will raise a promise from him, not from the 
 dead man, to pay for them.^ A post mortem examination is 
 not a funeral expense, and not within this rule.^ 
 
 § 889. Capacity of Parties. — The parties must have the 
 legal capacity, not only to enter into the contract, as will be 
 explained in chapters following this, but likewise to do that 
 for which it provides.* Thus, — 
 
 § 890. To take. — A valid conveyance of a thing, or bequest 
 or devise of it,^ can be made only to one capable in law of 
 being invested with it, and in the particular form.^ 
 
 § 891. The Doctrine of this Chapter restated. 
 
 One cannot make a contract with himself alone ; two, at 
 least, are required, and there may be more. It will be valid 
 in law only when the parties are, in law, competent to make 
 it. The chief element in legal capacity is capability in fact, 
 It would be the only element but for some technical rules, 
 necessary for the orderly working of the legal system ; such, 
 for example, as that the capability of children shall be con- 
 clusively presumed to be incomplete until they are twenty- 
 one years old. 
 
 Bright V. Lucas, Peake Add. Cas. 121 ; 8 Smith v. McLaughlin, 77 111. 596. 
 
 Mellen v. Whipple, 1 Gray, 317, 321 ; * Musselman v. Cravens, 47 Ind. I. 
 
 Tracy v. Gnnn, 29 Kan. 508. 6 Meade v. Beale, Taney, 339, 359. 
 
 1 Ante, § 237. « Holden v. Smallbrooke, Vaugh. 
 
 2 Tugwell t>. Heyman, 3 Camp. 298; 187, 199 ; Winslow v. Winslow, 52 Ind. 
 Shelly's Case, 1 Salk. 296 ; Rogers v. 8 ; Methodist Episcopal Church v. Ho- 
 Price, 3 Y. & J. 28 ; Green v. Salmon, boken, 4 Vroom, 13 ; The State v. Kil- 
 8 A. & E. 348; Brice v. Wilson, 3 Nev. lian, 51 Misso. 80. 
 
 & M. 512. See Newcombe v. Beloe, 
 Law Rep, 1 P. & M. 814. 
 
 344 
 
CHAP. XXXIII.] INFANTS. § 894 
 
 CHAPTER XXXIII. 
 
 INFANTS. 
 
 § 892. Introduction. 
 
 893-905. Capacity in General. 
 
 906-916. Necessaries and other Created Contracts. 
 
 917-923. Valid Actual Contracts. 
 
 924-928. Voidable. 
 
 929-935. Void. 
 
 936-945. Affirmance and Disaffirmance. 
 
 946. Doctrine of Chapter restated. 
 
 § 892. How Chapter divided. — We shall consider, I. In 
 General of Infants and their Capacity; II. Their Contract 
 for Necessaries and other Contracts created by the Law ; 
 III. Their Valid Actual Contracts ; IV. Their Voidable 
 Contracts ; V. Their Void Contracts ; VI. Affirmance and 
 Disaffirmance of the Voidable Contract. 
 
 I. In Creneral of Infants and their Capacity. 
 
 § 893. Who are. — All persons, male and female, under 
 the age of twenty-one years, are, by the common law, infants. 
 In most of our States, the law so remains ; but, in a few of 
 them, females are by statute made of age at eighteen.^ 
 
 § 894. How Age computed. — In the computation, fractions 
 of a day 2 are disregarded, and one day is allowed to the in- 
 fant ; so that a child born during any part of the twenty-four 
 hours of the first of January, counting from midnight, will be 
 
 1 1 Parsons Con. 294 ; and the cases partially but not fully emancipate the 
 
 cited to the next section. For example, female at eighteen. And see Dent v. 
 
 in Minnesota, " females of eighteen Cock, 65 Ga. 400. 
 years shall be considered of full age for ^ Bishop Written Laws, § 108 ; post, 
 
 all purposes." Cogel v. Eaph, 24 Minn. § 1340. 
 1 94. In some of these States, the statutes 
 
 346 
 
§ 898 PARTIES AND OTHER PARTAKERS. [BOOK II. 
 
 of age during the whole of the last day of December, from 
 midnight.^ 
 
 § 895. Mingled Capacity and Incapacity. — An infant, con- 
 stituting one of the community, and possessing an actual 
 capacity increasing with years, and not always being duly 
 cared for by parents, must, both for his own and the public 
 good, be endowed likewise with some legal capacity.^ But 
 with how much and what? Nature has furnished us with 
 no precise answer to this question, and the decisions of the 
 courts upon it are discordant. There are propositions rea- 
 sonably plain and pretty uniformly held in adjudication ; but, 
 on the whole, the law of infancy is very much at sea, perhaps 
 more so than any other part of our jurisprudence.^ It has 
 been in some degree changed by the courts from age to age, 
 "the tendency of the later decisions" being, it has been ob- 
 served, " to enlarge the liabilities and obligations of infants."* 
 And what adds to the difficulties of the exposition is, that the 
 law is not held quite the same in all our States. 
 
 § 896. How here. — To trace the course of decision mi- 
 nutely, and show all that has beeu and is, would be impos- 
 sible for the present work, even if the remainder of it were 
 devoted exclusively to the subject. The author, therefore, 
 will present such general views, with their needful illustra- 
 tions, as will best enable the practitioner to comprehend it, 
 on comparing what is here set down with the statutes and 
 decisions of his own State. 
 
 § 897. Contracts and Torts compared. — As a sort of general 
 truth, subject to qualifications, an infant is liable like an 
 adult for his torts, yet not for his contracts unless he chooses 
 to abide by them. But, to go back a little, and explain all 
 somewhat more minutely, — 
 
 § 898. Emancipation by Parent. — The emancipation of an 
 
 1 Co. Lit. 1716; Bac. Abr. Infancy, The State v. Clarke, 3 Harring. Del. 
 
 A. ; Howard's Case, 2 Salk. 625 • Fitz- 557. 
 
 hugh w. Dennlngton, 2 Ld. Raym. 1094, ^ ^^bot v. Parsons, 3 Bur. 1794, 
 
 1096; Anonymous, 1 Ld. Raym. 480; 1801. 
 
 Herbert v. Turball, 1 Keb. 589 ; 2 Kent ^ Breed v. Judd, 1 Gray, 455, 456. 
 Com. 233 ; Wells v. Wells, 6 Ind. 447; * HallK.Butterfield,59N.H.354,358; 
 
 Hamlin v. Stevenson, 4 Dana, 597 ; Philpot v. Bingham, 55 Ala. 435, 438. 
 346 
 
CHAP. XXSni.] INFANTS. § 901 
 
 infant by the parent,^ or the parent's permitting him to live 
 away from home and take care of himself,^ in no way in- 
 creases his power to bind himself by contract.^ Yet it is 
 often material to the question whether the parent or the 
 infant is to be deemed in law to have been the party con- 
 tracting with a third person.* 
 
 § 899. Servant of Parent. — A minor, living with the par- 
 ent, supported by him, and rendering him service, is in law 
 his servant; otherwise, is not necessarily such.^ Like any 
 other servant, — 
 
 § 900. "Wrongful Acts as to Parent. — The minor may bind 
 his master the father by wrongful acts done in the latter's 
 employment; as, for example, for injuries inflicted on a third 
 person through careless driving.^ But, as in the case of other 
 servants, the father will not be liable for his wilful trespasses 
 and torts committed unauthorized ; ^ for example, for setting 
 a dog on his neighbor's cattle.* 
 
 § 901. Torts as to Self. — In general, but not quite univer- 
 sally,^ an infant is answerable the same as an adult for his 
 torts,^'' such as assault and battery," injuring another's animal,^^ 
 embezzlement,^* and other unlawful conversions of goods ^* 
 or money .^^ But, where the wrong is likewise a breach of 
 contract, the injured party cannot make him liable by suing 
 
 1 Ante, § 230; Abbott v. Converse, « Lashbrook v. Patten, 1 Duv. 316 ; 
 4 Allen, 530, 533; Bucksport v. Rock- Strohl v. Levan, 3 Wright, Pa. 177. 
 land, 56 Maine, 22; Rex v. Rotherfield ' Paul v. Hummel, 43 Misso. 119; 
 Greys, 1 B. & C. 345, 347 ; Reg. v. Baker v. Haldeman, 24 Misso. 219. 
 Scammonden, 8 Q. B. 349 ; Gilkeson 8 Tifft v. Tifft, 4 Denio, 175. 
 
 V. Gilkeson, 1 Philad. 194; Wood v. 9 Bobbins v. Mount, 4 Rob. N. T. 
 
 Corcoran, 1 Allen, 405 ; Jenney v. Al- 553. 
 
 den, 12 Mass. 375. l» Peterson v. Haffner, 59 Ind. 130; 
 
 2 Rex V. Lytchet Matraverse, 7 B. & Conway v. Reed, 66 Misso. 346 ; Tifft v. 
 C. 226; Reg. V. Selbocne, 2 Ellis & E. Tifft, 4 Denio, 175; Sikes v. Johnson, 
 275. 16 Mass. 389 ; Bullock v. Babcock, 3 
 
 « Mason v. Wright, 13 Met. 306, Wend. 391 ; Shaw v. Coffin, 58 Maine, 
 
 308. 254. 
 
 * Morse v. Welton, 6 Conn. 547 ; " Peterson v. Haffner, supra. 
 
 Nightingale v. Withington, 15 Mass. '^ Tifft v. Tifft, supra. 
 
 272, 274 ; Bray v. Wheeler, 29 Vt. 514 ; i' Peigne v. SutclifEe, 2 McCord, 387. 
 
 Shute V. Dorr, 5 Wend. 204. " Baxter v. Bush, 29 Vt. 465 ; Walker 
 
 6 Clark V. Fitch, 2 Wend. 459 ; Hall v. Davis, 1 Gray, 506 ; Vasse v. Smith, 
 
 V. Hollander, 4 B. & C. 660 ; Evans v. 6 Cranch, 226. 
 
 Walton, Law Rep. 2 C. P. 615. >5 Elwell v. Martin, 32 Vt. 217. 
 
 347 
 
§ 902 PARTIES AND OTHER PARTAKERS. [BOOK II. 
 
 in the form of tort.^ This rule does not relieve the infant if 
 he commits a wrong independent of the contract ; ^ as, if he 
 has in his possession a horse under the contract of hiring, 
 then inflicts on it a wilful injury, he may be made to respond 
 in damages.^ And, by the better opinion, if he hires a horse 
 to go to one place and drives it to another, an action of tro- 
 ver will lie against him.* 
 
 § 902. Fraud. — Infancy seems to have constituted, in early 
 times, an exemption from liability for fraud.^ But, by the 
 later and present doctrine, an infant is ordinarily holden for 
 his frauds the same as an adult.® Yet, if, in a common-law 
 court, he is sued on his contract, his plea of infancy is not 
 answered by showing that the plaintiff was induced to enter 
 into it by his fraudulent pretence of being of age.^ Still, 
 contrary to some opinions,* even in such a case an action of 
 tort for the fraud may be maintained against him,^ or the 
 defrauded adult may rescind the contract, and recover back 
 the goods or other things with which he has parted.'" And a 
 court of equity, under its jurisdiction to suppress frauds,^' will 
 in many circumstances or commonly hold the infant to a con- 
 tract which he has entered into through the false pretence of 
 being of age.^^ The doctrines thus stated in this section are 
 believed to be sound in principle, and on the whole suffi- 
 
 1 Jennings v. Rimdall, 8 T. E. 335. 8 Johnson v. Pie, 1 Keb. 913, 1 Lev. 
 
 2 Vasse V. Smith, 6 Cranch, 226; 169; Liverpool Adelphi Loan Assoc, w. 
 Burnard v. Haggis, 14 C. B. n. s. 45, Fairhurst, 9 Exch. 422, 430 ; Price v. 
 9 Jur. N. B. 1325. Hewett, 8 Exch. 146, 148. 
 
 » Campbell v. Stakes, 2 Wend. 137, » Eitts v. Hall, 9 N. H. 441 ; Wal- 
 
 144. lace V. Morss, supra; Hughes v. Gal- 
 
 * Homer v. Thwing, 3 Pick. 492; lans, 10 Philad. 618; Lempriere v. 
 
 Penrose v. Curren, 3 Eawle, 351 ; Lange, supra. 
 
 Towne v. Wiley, 23 Vt. 355 ; Green v. i" Badger v. Phinney, 15 Mass. 359 ; 
 
 Sperry, 16 Vt. 390. Mills v. Graham, 4 B. & P. 140. 
 
 6 Reeve Dom. Eel. 259. " 1 Story Eq. § 240-242. 
 
 " Wallace v. Morss, 5 Hill, N. Y. ^^ Ex parte Unity Joint Stock Mut. 
 
 391 ; Ferguson v. Bobo, 54 Missis. 121, Banking Assoc. 3 De G. & J. 63, 4 Jur. 
 
 127 ; Loop V. Loop, 1 Vt. 177 ; Lem- N. s. 1257 ; Nelson v. Stocker, 4 De G. 
 
 priere v. Lange, 12 Ch. D. 675; & J. 458, 5 Jur. N. s. 751. See Bartlett 
 
 Mathews v. Cowan, 59 111. 341. «. Wells, 1 B. & S. 836 ; Schmitheimeru. 
 
 ' Stndwell v. Shapter, 54 N. Y. 249 ; Eiseman, 7 Bush, 298 ; Cory v. Gertcken, 
 
 Merriam v. Cunningham, 11 Cush. 40 ; 2 Madd. 40. 
 Burley v. Eussell, 10 N. H. 184; Conrad 
 V. Lane, 26 Minn. 389. 
 
 348 
 
CHAP. XXXIII.] INFANTS. § 904 
 
 ciently sustained bj-- the authorities, though ou some points 
 the books are not absolutely clear.^ 
 
 § 903. Estoppel. — Judicial proceedings, where infants are 
 parties, are commonly in our States required to follow in 
 some particulars special forms. But if they conform thereto, 
 they estop the infant the same as adults are estopped by rec- 
 ords correct as to them.^ It has been laid down in a few 
 cases that the estoppel in pais does not bind an infant,^ — a 
 doctrine believed to be correct to the extent that, as already 
 explained,* if he affirms himself to be of age while making a 
 contract, he may still set up his infancy when sued thereon.^ 
 Yet, in the ordinary case, he is concluded by an estoppel in 
 pais to the same extent as though he were of full age.^ For 
 example, if, having arrived at years of discretion, he stands 
 by and sees a third person sell his estate without disclosing 
 his infancy or other defect in the title, he is bound through 
 the same law of estoppel which in like circumstances would 
 hold an adult.'^ The doctrine that infancy is no protection 
 against fraud ^ leads necessarily to this consequence.® 
 
 § 904. Contract. — The remainder of this chapter will be 
 occupied with expositions of the infant's power of contract. 
 In most things, but not in all, — and there are differences of 
 opinion as to where the lines here run, — an infant's con- 
 tract has some effect,^" therefore it is of the sort termed void- 
 able." As to — 
 
 1 And see 1 Pars. Con. 317. v. Lane, 26 Minn. 389 ; Baker v. Stone, 
 
 2 Beelerw. Bullitt, 3 A. K. Mar. 280; 136 Mass, 405; Brantley v. Wolf, 60 
 Walsh V. Walsh, 116 Mass. 377; Kals- Missis. 420. And see Doran v. Smith, 
 ton V. Lahee, 8 Iowa, 1 7 ; Joyce v. 49 Vt. 353. But see Adams v. Fite, 3 
 Joyce, 5 Cal. 161 ; Clark v. Piatt, 30 Baxter, 69. 
 
 Conn. 282 ; Kuchenbeiser v. Beckert, 41 ^ Savage v. Foster, 9 Mod. 35, 38, 
 
 111. 172; Graham v. Pinckney, 7 Rob. and the notes to Leach's ed. 
 
 N. Y. 147 ; Wrisley v. Kenyon, 28 Vt. ' Ferguson v. Bobo, 54 Missis. 121 ; 
 
 5; Watkins v. Lawton, 69 Ga. 671; Davis u. Tingle, 8 B. Monr. 539. See 
 
 Albee v. Winterink, 55 Iowa, 184. Self ti. Taylor, 33 La. An. 769. 
 
 " Montgomery v. Gordon, 51 Ala. ^ Ante, § 902. 
 
 377 ; Goodman v. Winter, 64 Ala. 410; » Ante, § 284, 288, 292. 
 
 Lackman v. Wood, 25 Cal. 147 ; Brown w Ante, § 611, 617. 
 
 V. McCnne, 5 Sandf. 224; Norris v. " Bozemau v. Browning, 31 Ark. 
 
 Wait, 2 Rich. 148. 364 ; Carpenter v. Carpenter, 45 Ind. 
 
 * Ante, § 902. 142 ; Betts v. Carroll, 6 Misso. Ap. 518 ; 
 
 6 Brown t7. McCune, snpra; Conrad Hyer v. Hyatt, 3 Cranch, C. C. 276; 
 
 349 
 
§ 908 PARTIES AND OTHER PARTAKERS. [BOOK II. 
 
 § 905. Adults contracting with Infants — A void contract, 
 being absolutely without legal effect, no more binds an adult 
 party to it than the infant.^ But a voidable holds the adult 
 so long as the infant is in the fulfilment of his part, and does 
 not avoid it.^ Of course, a contract absolutely valid as to the 
 infant is the same also as to the adult. 
 
 II. The Contract for Necessaries, and other Contracts created 
 
 by the Law. 
 
 § 906. Law's Creation — (Antenuptial Debts). — Within the 
 principles governing the creation of contracts by the law,^ 
 plainly infancy can be no impediment ; for, if an infant is 
 under a legal duty,* there is the same reason for the law's 
 creating a promise from him to discharge it as where the like 
 duty rests on an adult. An illustration of this has already 
 been given in the proposition that, since under the common- 
 law rules marriage imposes on the husband the obligation to 
 pay his wife's antenuptial debts,^ it is no ground of exemp- 
 tion that he is an infant.® For further illustraticyi, — 
 
 § 907. Surety in Criminal Case. — Since au infant proceeded 
 against criminally can bind himself by recognizance,^ one 
 who in pursuance of a legal requirement becomes his surety 
 therein is entitled to recover of him, on a contract created by 
 the law,^ what he is compelled to pay.® 
 
 § 908. Necessaries. — The most familiar illustration is 
 where necessaries are furnished to an infant not otherwise 
 supplied ; he must live, so, as already explained, the law cre- 
 ates a promise from him to the person providing them to pay 
 what they are worth.^" The books often speak of this con- 
 
 Dnnton v. Brown, 31 Mich. 182 ; Green ' Ante, § 181 et scq. 
 
 V. Wilding, 59 Iowa, 679. * Ante, § 184. 
 
 1 Oliver v. Houdlet, 13 Mass. 237, 6 Mitchinson w. Hewson, 7 T.R. 348; 
 239 ; Warwick v. Bruce, 2 M. & S. 205, Pitkin v. Thompson, 13 Pick. 64, 67. 
 206. 8 Ante, § 201 ; Roach v. Quick, 9 
 
 2 Post, § 936 ; Bruce v. Warwick, 6 Wend. 238 ; Cole v. Seeley, 25 Vt. 220. 
 Taunt. 118; Warwick v. Bruce, 2 M. & S. '1 Bishop Crim. Proced. § 264 c. 
 205; Nightingale u.Withington, 15 Mass. 8 Ante, § 214, 216. 
 
 272; Thompson v. Hamilton, 12 Pick. » Dial v. Wood, 9 Baxter, 296. 
 
 425; Holt V. Clarencieux, 2 Stra. 937. lo Ante, § 234. 
 
 350 
 
CHAP. XXXIII.] INFANTS. § 909 
 
 tract as though it were an express one, which the law au- 
 thorizes the infant to make ; but the doctrine is universal 
 that the measure of his liability is the value of the necessa- 
 ries, not what he promised to pay for them,i so there is no 
 propriety in designating the undertaking as express, for it is 
 what the law and not the infant has made it.^ 
 
 § 909. What are Necessaries. — Necessaries for an infant are 
 similar to necessaries for a wife, explained by the author in 
 another work.^ Regard must be had to his means, occupa- 
 tion, and standing in society ; in other words, to his estate 
 and condition in life.* And necessaries are such things iis 
 are required for the particular infant's ^ reasonable comfort, 
 subsistence,^ and education. In the words of Coke, they are 
 "his necessary meat, drink, apparel, necessary physic [which 
 will include medical attendance'^], and such other necessaries, 
 and likewise his good teaching or instruction, whereby he 
 may profit himself afterwards." ® Nursing in sickness,^ draw- 
 ing a tooth which gives paiuj^" burying a deceased husband or 
 wife,^^ food and clothing not exceeding the due limits as to 
 quantity or kind,^^ — these are severally illustrations of what 
 is necessary for every infant not otherwise supplied. A 
 watch and chain,^^ a horse,^* livery for a servant,^^ — dinners, 
 confectionery, and fruit in addition to the ordinary board,i® — 
 
 1 Hyerw. Hyatt, 3 Cranch, C. C. 276; ' Hoyt v. Casey, 114 Mass. 397; 
 Commonwealth v. Hantz, 2 Pa. 333 ; Wailing v. Toll, 9 Johns. 141. 
 Morton v. Steward, 5 Bradw. 533 ; Bou- ^ Cq. Lit. 172 a. 
 
 chell w. Clary, 3 Brev. 194; Pairmount, ' Werner's Appeal, 10 Norris, Pa. 
 
 &c. Passenger Railway v. Stutler, 4 222. 
 
 Smith, Pa. 375. i" Strong v. Foote, 42 Conn. 203. 
 
 2 And see Stone v. Dennison, 13 " Chappie i-. Cooper, 13 M. &W. 252. 
 Pick. 1 ; Earle v. Reed, 10 Met. 387 ; 12 lb ; Maddox v. Miller, 1 M. & S. 
 Gay V. Ballon, 4 Wend. 403 ; Hyman v. 738 ; Angel v. McLellan, 16 Mass. 28 ; 
 Cain, 3 Jones, N. C. Ill; Robinson v. Gay v. Ballou, 4 Wend. 403 ; Barnes v. 
 Weeks, 56 Maina^ 102. Toys, 13 Q. B. D. 410; Anderson v. 
 
 » 1 Bishop Mar. & Div. § 554. Smith, 33 Md. 465. 
 
 * Burghart v. Angerstein, 6 Car. & '^ Barnes v. Toye, supra at p. 414; 
 P. 690; Dalton v. Gib, 7 Scott, 117, BeroUes v. Ramsay, Holt, N. P. 77; 
 3 Jur. 43 ; Peters v. Fleming, 6 M. Peters v. Fleming, 6 M. & W. 42. 
 
 & W. 42 ; Ive V. Chester, Cro. Jac. " Hart v. Prater, 1 Jar. 623. See 
 
 560. Cornelia v. Ellis, 11 111. 584 ; Rainwater 
 
 * Ryder v. Wombwell, Law Rep. 4 v. Durham, 2 Nott & McC. 524. 
 Ex. 32, 38. 1^ Hands v. Slaney, 8 T. R. 578. 
 
 « Ante, § 232, 234. 1^ Brooker w. Scott, II M. & W. 
 
 351 
 
§ 911 PARTIES AND OTHER PARTAKERS. [bOOK II. 
 
 are examples of what will be deemed necessaries or not 
 according to the attending facts. Tobacco, including pipes 
 and cigars, is never, unless in very special circumstances, a 
 necessary for an infant.^ Said Parke, B. " from the earliest 
 time down to the present, the word ' necessaries ' was not con- 
 fined in its strict sense to such articles as were necessary to 
 the support of life, but extended to articles fit to maintain 
 the particular person in the state, station, and degree in life 
 in which he is." ^ Therefore the question whether things in 
 controversy were necessaries or not depends on what is spe- 
 cial to the individual case, and is a mixed one of law and 
 fact; 3 and it is to be decided by the jury, under proper in- 
 structions and control from the court.* 
 
 § 910. Wife. — An infant is, to the same extent as an 
 adult,^ liable for necessaries supplied to his wife.^ 
 
 § 911. Necessaries as to Business — Protection of Property. — 
 An infant, not being deemed in law competent to conduct 
 business, is, therefore, if he enters upon it, not liable as for 
 necessaries for things without which it cannot be carried on;^ 
 such, for example, as goods, the rent of a shop, and help 
 therein.® But if the law has, as in some of our States after 
 marriage, intrusted the infant with the management of his 
 property, it, therefore, makes him responsible for necessary 
 supplies.* There are cases which hold an infant not compel- 
 lable to pay for repairs to his dwelling-house, however indis- 
 
 67 ; Wharton v. Mackenzie, 5 Q. B. 428; Chapman v. Hughes, 61 Missis. 
 
 606. 339 ; Turner v. Trisby, 1 Stra. 168. 
 
 1 Bryant w. Richardson, 12 Jur. N. s. ' Mason v. Wright, 13 Met. 306; 
 300, Law Rep. 3 Ex. 93, note. Warwiclt v. Bruce, 2 M. & S. 205, 209 ; 
 
 2 Peters v. Fleming, supra at p. 46 ; Goode v. Harrison, 5 B. & Aid. 147, 
 approved by Denman, C. J. in Wharton 157; Decell v. Lewenthal, 57 Missis, 
 u. Mackenzie, supra at p. 611. 331. 
 
 8 Ryder v. Wombwell, Law Rep. 4 ' Whywall v. CMfempion, 2 Stra. 
 
 Ex.32, 38. 1083; Dilk v. Keighley, 2 Esp. 480; 
 
 * Ryder v. Wombwell, supra ; Mer- Lowe v. Griffith, 1 Scott, 458, 460 ; 
 
 riam v. Cunningham, 11 Cush. 40, 44 ; Smith v. Kelley, 13 Met. 309. 
 Davis K.Caldwell, 12 Cush. 512,514; » Chapman v. Hughes, 61 Missis. 
 
 Wharton v. Mackenzie, supra. 339. And see Huff v. Boumell, 48 Ga. 
 
 5 Ante, § 235 ; Harrison v. Fane, 1 338 ; Decell v. Lewenthal, supra ; Kun- 
 
 Scott, N. R. 287 ; s. o. nom. Harris v. del v. Keeler, 7 Watts, 237 ; Watson v. 
 
 Fane, 4 Jur. 508. Hensel, 7 Watts, 344 ; Mohney v. Evans, 
 
 » Cantine v. Phillips, 5 Harring. Del. 1 Smith, Pa. 80. 
 352 
 
OHAP. XXXIII.] INFANTS. § 914 
 
 pensable for its preservation ;^ but this is contrary to reason, 
 for the law endows him with full ownership, the same as an 
 adult, and there is not one legal principle which could prop- 
 erly require him to leave it to drop down and be ruined for 
 the want of repairs.^ 
 
 § 912. Already Supplied. — One cannot recover of an infant 
 pay for things with which he is already, from whatever 
 source, suflQciently supplied, however necessary they would 
 otherwise be.^ And — 
 
 §913. Tradesman's Peril — (Proofs). — A tradesman, who 
 furnishes necessaries to the infant, can do as he pleases about 
 inquiring into the facts ; still, on a suit, he must prove all the 
 elements of the defendant's responsibility ; so that, if he acts 
 without inquiry, he does it at his peril. But this rule does 
 not exclude those presumptions, not for consideration here, 
 which the law of evidence has established.* 
 
 § 914. Money — is not a necessary in the technical sense, 
 however essential it is practically found to be. So that one 
 who lends money to an infant cannot recover it at law, even 
 though the infant afterward expends it for necessaries.^ But 
 one who at his request pays money to a third person for 
 necessaries can recover it.® And in equity "the mere lender 
 is permitted to stand in the place of the infant, so as to have 
 back his money if the latter pays it away for necessaries.'' 
 
 1 Tupper V. Cadwell, 12 Met. 559 ; * Ante, § 234 ; Barnes v. Toye, 13 
 Anonymous, 3 Salk. 195. See Mathes Q. B. B. 410 ; Story v. Pery, 4 Car. & 
 V. Dobschnetz, 72 III. 438; Price v. P. 526; Brayshaw v. Eaton, 7 Scott, 
 Sanders, 60 Ind. 310. 183, 3 Jur. 222; Nicholson v. Wilbom, 
 
 2 And see the principles explained in 13 Ga. 467. 
 
 Hall V. Butterfield, 59 N. H. 354 ; Bart- » Randall f. Sweet, 1 Denio, 460 ; 
 
 lett V. Bailey, 59 N. H. 408. Coimsel Darby v. Boucher, 1 Salk. 279 ; Earle v. 
 
 Fees— for the securing of property to Peale, 1 Salk. 386, 10 Mod. 67 ; Pro- 
 
 the infant, Epperson v. Nugent, 57 bart v. Knouth, 2 Esp. 472, note ; Price 
 
 Missis. 45 ; Dillon v. Bowles, 77 Misso. v. Sanders, 60 Ind. 310. See Ellis v. 
 
 603. Ellis, 1 Ld. Raym. 344, 5 Mod. 368; 
 
 8 Barnes v. Toye, 13 Q. B. D. 410 ; Hedgley v. Holt, 4 Car. & P. 104. 
 Nichol V. Steger, 6 Lea, 393, 2 Tenn. « Swift v. Bennett, 10 Cnsh. 436 ; 
 
 Ch. 328 ; Nicholson v. Wilbom, 13 Randall v. Sweet, supra ; Conn v. Co- 
 
 6a. 467 ; Johnson v. Lines, 6 Watts & burn, 7 N. H. 368 ; Smith v. Oliphant, 
 
 S. 80; Kraker v. Byrnm, 13 Rich. 163; 2 Sandf 306; Haine v. Tarrant, 2 Hill, 
 
 Hoyt t). Casey, 114 Mass. 397 ; Cook v. S. C. 400 ; Clarke ». Leslie, 5 Esp. 28. 
 Deaton, 3 Car. & P. 114 ; Burghart v. ' Marlow v. Pitfeild, I P. Wms. 558 ; 
 
 Angerstein, 6 Car. & P. 690. Price v. Sanders, supra. 
 
 23 353 
 
§ 916 PARTIES AND OTHER PARTAKERS. [BOOK II. 
 
 § 915. Infant having Money. — Though an infant has at 
 command the money wherewith to buy necessaries, this is not 
 equivalent to his being supplied ; so it is in his power, instead 
 of paying, to charge himself with them.^ 
 
 § 916. Infant's Express Promise. — Commonly an infant 
 ordering necessaries makes an express promise to pay for 
 them, the same as would an adult. This is not essential to 
 his legal liability ,2 yet the credit must not have been given to 
 another person.^ And we have seen that the sum promised 
 is not the measure of his indebtedness, it is the actual value 
 of the things.* If, in these circumstances, he delivers as in 
 payment his bond, promissory note, or other written under- 
 taking, wherein the sum mentioned may be quite different 
 from what the law declares it to be, plainly it cannot be a 
 payment in law, though it may be regarded as something col- 
 lateral. We could not hold it void ; for, if we did, and it 
 gave time to the infant, the adult party might sue him imme- 
 diately, in violation of the bargain.^ And still it is some- 
 times said that such an instrument is void ; ^ and that no 
 action can be maintained upon it, but only on the considera- 
 tion for which it was given.'^ The true and inevitable doc- 
 trine appears to be, to hold it in a peculiar sense ® voidable ; 
 so that, as Parsons expresses it, " he may be sued upon the 
 instrument, but the plaintiff shall recover only the value of 
 the necessaries." ^ The decisions are perhaps in some degree 
 reconcilable ; on their face, they seem a good deal in conflict.^" 
 
 1 Burghart v. Hall, 4 M. & W. 727 ; 'I Pars. Con. 313. 
 
 Barnes v. Toye, 13 Q. B. D. 410, 412. l" Martin v. Gale, 4 Ch. D. 428; Du- 
 
 But see Rivers v. Gregg, 5 Rich. Eq. bose v. Wheddon, 4 McCord, 221 ; 
 
 274. Bradley v. Pratt, 23 Vt. 378 ; Ray v. 
 
 'i Gay V. Ballon, 4 Wend. 403. Tubbs, 50 Vt. 688, 694, 695 ; William- 
 
 8 Sinklear v. Emert, 18 111. 63 ; St. son v. Watts, 1 Camp. 552; Cooper v. 
 
 Joseph's Academy B. Augustini, 55 Ala. The State, 37 Ark. 421; Howard v. 
 
 493, Simpkins, 70 Ga. 322. And see cases 
 
 * Ante, § 908. cited in 1 Pars. Con. as above. "An 
 
 6 Ante, § 905. infant is liable for necessaries, bnt can- 
 
 6 2 Kent Com. 235 ; Swasey v. Van- not give a bond for them." BuUer, J. 
 
 derheyden, 10 Johns. 33 ; Bouchell v. in Caudell v. Shaw, 4 T. R. 361, 363. 
 
 Clary, 3 Brev. 194, To the like effect, Co. Lit. 172 a. And, 
 
 ' McCrillis v. How, 3 N. H. 348 ; as to the form of action, there may be 
 
 McMinn v. Richmonds, 6 Yerg. 9. difficulties where the suit is on a spe- 
 
 " Ante, § 617. cialty, and the recovery is on the law's 
 
 354 
 
CHAP. XXXIII.] INFANTS. § 918 
 
 III. The Infant's Valid Actual Contracts. 
 
 § 917. VaUd, Voidable, Void, distinguished. — A contract 
 which infant parties make for themselves may be valid, void- 
 able, or void. And the common rule for determining to 
 which class a particular one belongs is, that, if it is clearly 
 for the infant's benefit, it is valid, binding him the same as 
 though he were an adult ; if clearly to his disadvantage, it is 
 void ; and if it is, as most contracts are, not certainly the 
 one or the other,' it may be avoided by him, or not, at his 
 election.^ " This," said a learned judge, " may answer well 
 enough as a general rule, but it must be subject to excep- 
 tions." 2 It doubtless states, with reasonable correctness, the 
 principle ; but, in practice, it cannot in its nature be other 
 than an imperfect guide. It is less regarded in later times 
 than formerly ; or, at least, many contracts once deemed valid 
 or void are now relegated to the class which has been per- 
 mitted almost to absorb the other two, namely, the voidable. 
 Nor does it quite cover every sort of case ; thus, — 
 
 §918. .What Law requires. — "Whatsoever an infant is 
 bound to do by law," says Coke, " the same shall bind him 
 albeit he doth it without suit of law ; " ^ as, if he is an ^xec- 
 
 promise which, we have seen, is not R. 339 ; Keane u. Boycott, 2 H. BI. 511 ; 
 such. Ante, § 203. Therefore the rule Rex v. Arundel, 5 M. & S. 257 ; Dun- 
 has sometimes been laid down to be, ton v. Brown, 31 Mich. 182; Philpot v. 
 that, where the instrument is of a sort Bingham, 55 Ala. 435, 438 ; Green v. 
 precluding inquiry into the consideration Wilding, 59 Iowa, 679; Baylis v. Dine- 
 (as to which see ante, § 75, 124, note, ley, 3 M. & S. 477 ; Strain v. Wright, 7 
 275), it is void; where not, the value Ga. 568 ; Bryan u. Walton, 14 Ga. 185; 
 of fhe articles may be recovered in a Oliver k. Houdlet, 13 Mass. 237; Whit- 
 suit thereon. Cooper v. The State, su- ney v. Dutch, 14 Mass. 457 ; Thompson 
 pra, referring to Reeve Dom. Rel. 229, v. Hamilton, 12 Pick. 425; Wheaton v. 
 230 ; Stone v. Dennison, 13 Pick. 1, 6, 7 ; East, 5 Yerg. 41 ; Radford v. Westcott, 
 Guthrie v. Morris, 22 Ark. 411. In 1 Des. 596. 
 
 reason, this distinction does not solve ^ Bronson, J. in Fonda v. Van Home, 
 
 the difficnlty ; for the suit is not on the 15 Wend. 631, 635. 
 consideration, but on the promise. ' Co. Lit. 172 a ; 2 Kent Com. 242, 
 
 1 Vent V. Osgood, 19 Pick. 572, 573 ; 243 ; Baker v. Lovett, 6 Mass. 78, 80; 
 
 Baker v. White, 2 T. R. 159, 161 ; Abbot v. Parsons, 3 Bur. 1794, 1801 ; 
 
 Swafford v. Ferguson, 3 Lea, 292 ; Rex Prouty v. Edgar, 6 Iowa, 353. 
 V. Wigston, 3 B. & C. 484, 486, 5 D. & 
 
 355 
 
§ 920 PARTIES AND OTHER PARTAKERS. [BOOK II. 
 
 utor, bis acquittance upon payment is valid, but not without 
 payment, the law requiring it in the former case yet not in 
 the latter.! Or, as more broadly put by Bronson, C. J., 
 " when an infant is under a legal obligation to do an act, he 
 may bind himself by a fair and reasonable contract made for 
 the purpose of discharging the obligation."^ Within which 
 principle, an infant who is compellable to make partition is 
 concluded by one which he executes voluntarily .^ And the 
 Vermont court has even held the infant liable on his prom- 
 issory note given in settlement of a tort.* Leaving this sort 
 of case, — 
 
 § 919. Executory, Executed, distinguished. — There is a 
 wide distinction between an infant's mere executory prom- 
 ises, and those which are executed ; ^ the latter being in 
 many circumstances irrevocable, but seldom or never tlie 
 former except where created by law. For example, " if," in 
 the words of Lord Kenyon, " an infant was to buy a thing, 
 not being necessaries, he could not be compelled to pay for 
 it; but, having done so, he could not recover back the 
 money." ^ Further as to which, — 
 
 § 920. Executory Promise in Pact. — As explained in the 
 last sub-title, there are many contracts in form expi'fess, while 
 in truth they are creations of the law, which, instead of the 
 express undertaking of the infant, gives them their character 
 and effect.'' Leaving these out of consideration, there are 
 believed to be no exceptions, certainly none unless in very 
 special cases, to the proposition that whatever mere executory 
 promise an infant makes, and though the consideration for it 
 has been paid to him, and, at least as the general rule, though 
 he has neither returned nor offered to return it,* he cannot be 
 
 1 Co. Lit. ut sup. « Spicer v. Earl, 41 Mich. 191. 
 
 2 People V. Moores, 4 Denio, 518, ^ Wilson y. Kearse, Peake Add. Cas. 
 
 .519. See Kilcrease v. Shelby, 23 Missis 
 161. 
 
 8 Bavington v. Clarke, 2 Pa. 115 
 Abbot V. Parsons, supra; Cocks v. Sim 
 mons, 57 Missis. 183. See Rogers v. 
 Cruger, 7 Johns. 557. 
 
 * Bay V. Tubbs, 50 Vt. 688 ; com 
 
 196, — a dictum unquestionably sound, 
 but the point decided is contrary to other 
 authorities. 
 
 ' For further illustrations see ante, 
 § 202, 203 ; Evelyn v. Chichester, 3 Bur. 
 1717, 1719 ; Crisp v. Churchill, cited 1 
 B. & P. 340. 
 
 pare with ante, § 901, 916. 8 Craighead v. Wells, 21 Misso. 404. 
 
 356 
 
CHAP. XXXin.] INFANTS. § 921 
 
 compelled either to perform it or to pay damages for its non- 
 performance.^ But — 
 
 § 921. Executed, — There are many contracts of the infant 
 which, when executed, he can no more revoke than could an 
 adult. It is believed to be impossible, in the present condi- 
 tion of the authorities, to formulate a rule distinguishing 
 these from the revocable. The doctrine appears to grow out 
 of the practical necessities of business, -which, rather than 
 any rights or capacity of the infant or rights of third persons, 
 furnish its limits. For example, it is within what has already 
 been laid down^ to say, that, if an infant goes upon the 
 streets of a city shopping, he cannot afterward retrace his 
 steps and get back the money he paid, even though he ten- 
 ders the goods in return ; for to permit it would render shop- 
 keeping impossible. One distinction appears to be, that, 
 where an infant makes with another person a contract, then 
 pays or does something toward performance, then repudiates 
 it, he can have again or recover from such person his money 
 or the pay for what he did, if in the transaction he has 
 received nothing, but not if he has enjoyed a substantial 
 benefit, — a distinction not sustained by all the cases, but 
 apparently hy the greater number.^ And though something 
 has come to the infant, if the parties can be placed in statu 
 quo,^ he may return it and take back what he parted with ; ^ 
 
 1 Flexner v. Dickerson, 72 Ala. 318, 1 Gray, 455, 457 ; Aldrich u. Abrahams, 
 322. This, being a negative proposi- Hill & Denio, 423; Pitcher o. Turin 
 tion, is consequently not provable af- Plank Road, 1 Barb. 436 ; Heath v. 
 firmatively by the cases ; but, I believe, Stevens, 48 N. H. 251 ; ShurtlefE v. 
 there is no sufficient authority against it. Millard, 12 R. I. 272 ; Holmes v. Blogg, 
 And see Met. Con. 42, 43 ; 1 Chit. Con. 8 Taunt. 508 ; Stone v. Dennison, 13 
 nth Am. ed. 194; Ware v. Cardedge, Pick. 1 ; Lempriere v. Lange, 12 Ch. D. 
 24 Ala. 622 ; Hunt v. Peake, 5 Cow. 675 ; Harney v. Owen, 4 Blackf. 337 ; 
 475 ; Wilt V. Welsh, 6 Watts, 9; West Van Pelt v. Corwine, 6 Ind. 363; Luf- 
 V. Gregg, 1 Grant, Pa. 53 ; Handy v. kin v. Mayall, 5 Fost. N. H. 82 ; Whit- 
 Brown, 1 Cranch C. C. 610 ; Clark v. marsh v. Hall, 3 Denio, 375 ; Ray v. 
 Goddard, 39 Ala. 164 ; Vinsen v. Lock- Haines, 52 111. 485 ; Meredith v. Craw- 
 ard, 7 Bush, 458 ; Story v, Pery, 4 Car. ford, 34 Ind. 399 ; Gaffney v. Hayden, 
 &P. 526; McCoy v. Huffman, 8 Cow. 110 Mass. 137; Corpe v. Overton, 10 
 84 ; DUk 17. Keighley. 2 Esp. 480. Bing. 252, 3 Moore & S. 738. 
 
 2 Ante, § 919, 920. * Ante, § 679, 818, 833. 
 
 8 Medbury v. Watrous, 7 Hill, N. Y. » Xowle v. Dresser, 73 Maine, 252, 
 
 110, and cases there cited; Breedv. Judd, 256. 
 
 357 
 
§ 922 PARTIES AND OTHER PARTAKERS. [bOOK II. 
 
 and, since he is liable like an adult for fraud and other similar 
 wrongs,^ he cannot, of fraud, have again the one, without 
 restoring the other.^ Within which principle, if monej' or 
 any other thing is paid him, — for example, if he takes 
 reut,'^ — he cannot recover it over again after becoming of 
 age.* The mere repudiating of his agreement is not deemed 
 a legal fraud ; ^ and, if he has consumed the consideration of 
 his deed, his inability to restore it will not prevent a dis- 
 affirmance.^ An infant's indorsement, for a valuable consid- 
 eration, of a promissory note, is iri'evocable.^ Nor, after his 
 money has been paid away at his request by a third person, 
 can he recover it back from the latter.* Again, when he has 
 put money into a partnership and done work for it, he can- 
 not, on rescinding the pai'tnership agreement, demand of his 
 late partner such money and the pay for his labor.^ Still he 
 is not, beyond the sum rendered into the firm, liable for its 
 debts.^" The books furnish numerous other instances, de- 
 pending, it is believed, mainly, if not on prior authorities, 
 upon what the judges deem to be fit and practical in the par- 
 ticular sort of case. 
 
 § 922. Specially Authorized. — Contracts which the infant 
 has made under the authority of a statute,^i or of a person ^ 
 or court ^^ invested with power to confirm them, whether 
 executory or executed, will bind him. But mere general 
 
 1 Ante, § 901, 902; Shaw v. Coffin, ler. v. Smith, 26 Minn. 248; Green v. 
 58 Maine, 254 ; School District v. Brag- Green, 69 N. Y. 553. 
 
 don, 3 Fost. N. H. 507 ; Oliver v. Mc- ' Nightingale v. Withington, 15 
 
 Clellan, 21 Ala. 675; 2 Kent Com. 241. Mass. 272. See Taylor ;;. Grokcr, 4 
 
 2 Kerr v. Bell, 44 Misso. 120; Bry- Esp. 187. 
 
 ant V. Pottinger, 6 Bush, 473 ; Williams 8 Welch 17. Welch, 103 Mass. 562. 
 V. Brown, 34 Maine, 594; Smith v. » Page u. Morse, 128 Mass. 99; Mo- 
 Evans, 5 Humph. 70; Heath v. West, 8 ley v. Brine, 120 Mass. 324, 326. See 
 Fost. N. H. 101; Riley u. Mallory, 33 Brown v. Hartford Fire Ins. Co. 117 
 Conn. 201. Mass. 479; Sadler v. Robinson, 2 Stew. 
 
 8 Parker v. Elder, 11 Humph. 546. 520. 
 
 * Holmes v. Blogg, 2 Moore, 552 ; i" Bush v. Linthicum, 59 Md. 344. 
 
 Taft V. Pike, 14 Vt. 405. See Riley v. >i Northwestern Railway v. McMi- 
 
 "Mallory, supra. chael, 5 Exch. 114; In re Higgins, 16 
 
 6 Burns v. Hill, 19 Ga. 22. Wis. 351 ; Gavin v. Burton, 8 Ind. 69; 
 
 6 Green v. Green, 7 Hun, 492 ; Chan- The State v. Baker, 9 Rich. Eq. 521. 
 
 dler V. Simmons, 97 Mass. 508, 514; l^ May u. Webb, Kirby, 286. 
 
 Bartlett «. Drake, 100 Mass. 174, 177 ; '» In re Letchford, 2 Ch. D. 719. See 
 
 Manning v. Johnson, 26 Ala. 446 ; Mil- Anderson v. Ammonett, 9 Lea, 1. 
 
 358 
 
CHAP. XXXIII.] INFANTS. § 925 
 
 words in a statute are not ordinarily interpreted to exclude 
 infants from their privilege of minority.^ 
 
 § 923. Receive and Hold. — (Gift). — An infant may receive 
 and hold property, real and personal, the same as an adult ; ^ 
 except, perhaps, in cases where it is attended with a burden 
 which may prove prejudicial.^ A gift from a father to his 
 infant child vests the ownership in the latter;* and a gift 
 from a third person, — for example, bounty money for en- 
 listing as a soldier,^ — transmits the thing given, not to the 
 father, but to the minor child.® Even the ordinary clothing 
 of an infant is properly treated as his ; ^ though, at least in 
 some circumstances, it may, at the election of the party, be 
 equally regarded as the father's.^ 
 
 IV. The InfanVs Voidable Contracts. 
 
 § 924. Most Contracts — of the infant are, as already ex- 
 plained, neither absolutely binding on him nor wholly void, 
 but voidable by him and good as against the adult party .^ 
 Thus,— 
 
 § 925. Illustrations of the Voidable — are the infant's part- 
 nership agreements ; ^" his conveyances of his real ^^ and per- 
 sonal ^ property ; commonly his promissory notes ; ^^ his 
 
 1 Bishop Written Laws, § 7, 1 17,< 131 ; Mechanics Bank, 97 Mass. 345 ; Caugt 
 Stowel V. Zouch, 1 Plow. 353 a, 364; ey i'. Smith, 50 Barb. 351. 
 Northwestern Railway v. McMichael, ^ Brown v. The State, 42 Ala. 540, 
 snpra at p. 124. 542. 
 
 2 Hook V. Donaldson, 9 Lea, 56, 59 ; ' Perkins v. Wright, 37 Ind. 27. 
 Crymes v. Day, 1 Bailey, 320 ; Tate v. "2 Bishop Crim. Law, § 789. 
 Tate, 1 Dev. & Bat. Eq. 22 ; Mears v. ' Ante, § 904, 905, 917. 
 Bickford, 55 Maine, 528; Spencer w Dunton d. Brown, 31 Mich. 182. 
 
 V. Carr, 45 N. Y. 406, 410 ; De Levillain " Irvine v. Irvine, 9 Wal. 617 ; Spen- 
 
 w.Evan3,39 Cal. 120; Knotts t7. Stearns, cer v. Carr, 45 N. Y. 406; Abbot i-. 
 
 91 XI. S. 638; McCloskey v. Cyphert, 3 Parsons, 3 Bur. 1794, 1 W. Bl. 575 ; 2 
 
 Casey, Pa. 220 ; Taylor v. Mechanics Kent Com. 236 ; Dixon v. Merritt, 21 
 
 Savings Bank, 97 Mass. 345 ; Harris v. Minn. 196. 
 
 y Musgrove, 59 Texas, 401. '^ Baker v. Lovett, 6 Mass. 78. 
 
 8 Skinner v. Maxwell, 66 N. C. 45. i^ Young v. Bell, 1 Cranch C. C. 342 ; 
 
 * Hunter v. Westbrook, 2 Car. & P. Buzzell v. Bennett, 2 Cal. 101 ; Wright 
 
 578. V. Steele, 2 N. H. 51 ; Eeed v. Batchel- 
 
 6 Magee v. Magee, 65 III. 255 ; Mears der, 1 Met. 559 ; Earle v. Eeed, 10 Met. 
 
 i>. Bickford, 55 Maine, 528 ; Taylor, v. 387 ; Baldwin v. Rosier, 1 McCrary, 384 ; 
 
 369 
 
§927 
 
 PARTIES AND OTHER PARTAKERS. [BOOK 11, 
 
 exchanges ' and sales ^ of property ; his promises to marry ,^ 
 to go as a mariner on a whaling voyage,* to work on land,^ 
 and multitudes of others which it would be needless to 
 specify.® Nor is it material whether the form of the under- 
 taking is a bond, deed, or other specialty, or an agreement 
 not under seal ; all being equally voidable.^ 
 
 § 926. Infant Feme Covert. — The deed of a married infant 
 is, under the common-law rules, void, not voidable ; ^ but this 
 is because of her coverture, not her infancy. In most of our 
 States, wives have statutory authoritj'' to convey their lands 
 by deed executed jointly with their husbands ; or, in some of 
 them, alone ; in which circumstances, an infant feme covert's 
 deed is, the disability of coverture being thus removed, 
 voidable.^ 
 
 § 927. Executed. — The infant's executed voidable con- 
 tract, like one induced by fraud,^" vests the defeasible interest 
 in the other party ; " for example, his deed of lands transmits 
 
 Everson v. Carpenter, 17 Wend. 419; 
 Goodsell 0. Myers, 3 Wend. 479. But 
 see Alsop v. Todd, 2 Eoot, 105 ; Maples 
 V. Wightman, 4 Conn. 376; Beeler v. 
 Young, 1 Bibb, 519 ; Tandy v. Master- 
 son, 1 Bibb, 330. 
 
 1 Williams v. Brown, 34 Maine, 594 ; 
 Grace v. Hale, 2 Humph. 27. 
 
 2 Baker v. Lovett, 6 Mass. 78 ; Ed- 
 gerton v. Wolf, 6 Gray, 453 ; Stafford v. 
 Eoof, 9 Cow. 626. 
 
 8 Hunt V. Peake, 5 Cow. 475 ; Can- 
 non i;. Alsbury, 1 A. K. Mar. 76 ; Wil- 
 lard V. Stone, 7 Cow. 22 ; Warwick v. 
 Cooper, 5 Sneed, Tenn. 659. 
 
 « Vent V. Osgood, 19 Pick. 572. 
 
 6 Judkins v. Walker, 17 Maine, 38 ; 
 Lowe V. Sinklear, 27 Misso. 308 ; Thom- 
 as V. Dike, 11 Vt. 273 ; Hoxie v. Lin- 
 coln, 25 Vt. 206 ; Francis v. Felmit, 4 
 Dev. & Bat. 498. 
 
 6 For example. West v. Penny, 16 
 Ala. 186; Haynes v. Slack, 32 Missis. 
 193 ; Patchin v. Cromach, 13 Vt. 330; 
 Williams v. Moor, 11 M. & W. 256; 
 Holt V. Holt, 59 Maine, 464. 
 
 ' Weaver v. Jones, 24 Ala. 420 ; Par- 
 sons V. Hill, 8 Misso. 135 ; Mustard v. 
 
 360 
 
 Wohlford, 15 Grat. 329 ; Jenkins v. Jen- 
 kins, 12 Iowa, 195; Slaughter v. Cun- 
 ningham, 24 Ala. 260 ; Harrod v. Myers, 
 21 Ark. 592 ; Wallace v. Lewis, 4 Bar- 
 ring. Del. 75 ; Moore v. Abeniathy, 7 
 Blackf. 442; Johnson v. Rockwell, 12 
 Ind. 76 ; Chapman v. Chapman, 13 Ind. 
 396; Lowe v. Gist, 5 Har. & J. 106, 
 note ; Boston Bank v. Chamberlin, 15 
 Mass. 220 ; Kendall o. Lawrence, 22 
 Pick. 540; Bool v. Mix, 17 Wend. 119; 
 Cook V. Toumljs, 36 Missis. 685 ; Fer- 
 guson t;. Bell, 17 Misso. 347; Cummings 
 V. Powell, 8 Texas, 80 ; Fant o. Cath- 
 cart, 8 Ala. 725 ; Bingham v. Barley, 55 
 Texas, 281 ; Eureka Co. v. Edwards, 
 71 Ala. 248 ; Allen ». Poole, 54 Missis. 
 323. 
 
 8 Mackey v. Proctor, 12 B. Monr. 
 433; Magee v. Welsh, 18 Cal. 155; 
 Schrader v. Decker, 9 Barr, 14 ; Cronise 
 V. Clark, 4 Md. Ch. 403 ; Chandler v. 
 McKinney, 6 Mich. 217; Adams v. Boss, 
 1 Vroom, 505. 
 
 9 2 Bishop Mar. Women, § 515, 516. 
 
 10 Ante, § 672. 
 
 11 Ante, § 618. 
 
CHAP. XXXIII.] INFANTS. § 929 
 
 the title,^ and so does his sale of personalty when accom- 
 panied by the necessary deliveiy.^ Now, — 
 
 § 928. Sale of Voidable to Third Person. — If the party who 
 is thus invested with the voidable interest sells it — for ex- 
 ample, sells land which' was the infant's — to a third person 
 who is not aware of the infancy, does such purchaser take an 
 absolute title, as in the case of fraud already explained ? ^ If 
 he does, the way to strip an infant is easy, and the law's pro- 
 tection is valueless. There are cases which hold that the 
 infant may have back again his real estate from an innocent 
 third person, and so much indeed appears to be established ;* 
 but perhaps he cannot thus have again, from such third per- 
 son, every kind of property." 
 
 V. The Infant's Void Contracts. 
 
 § 929. In no Event beneficial. — The foundation of this sub- 
 title is the doctrine, formerly held by all the courts, yet now 
 discarded by some® and retained by others, that any contract 
 of the infant not in any event possible to be for his benefit is 
 in law absolutely void.^ Though this doctrine is in some 
 cases found to be a little difficult of application, there occurs 
 to the writer no just reason why it should not be retained, 
 and applied where the court can see that the result will be 
 certainly right. If, in a particular instance, it is absolutely 
 plain that, whatever transpires, the interests of the infant 
 will compel him to disaffirm the contract when he arrives at 
 his majority or before, thus rendering it in law void from 
 
 1 Irvine v. Irvine, 9 Wal. 617; ^ Welch v. Welch, 103 Mass. 562; 
 Worcester v. Eaton, 13 Mass. 371, 375. Frazier v. Massey, 14 Ind. 382 ; Night- 
 
 2 Fonda v. "Van Home, 15 Wend, ingale v. Withington, 15 Mass. 272. 
 631 ; Stafford v. Roof, 9 Cow. 626. « Hyer v. Hyatt, 3 Cranch C. C. 276 ; 
 
 » Ante, § 672-674, 728. Fetrow v. Wiseman, 40 Ind. 148 ; Flex- 
 
 * Myers v. Sanders, 7 Dana, 506, 521 
 Somers v. Pumphrey, 24 Ind. 231, 239 
 Moore v. Abernathy, 7 Blackf. 442 
 Hovey v. Hobson, 53 Maine, 451, 456 
 
 ner v. Dickerson, 72 Ala. 318, 322. 
 
 ' Ante, § 917; Robinson v. Weeks, 
 56 Maine, 102; Lumsden's Case, Law 
 Rep. 4 Ch. Ap. 31, 33, 34; Owen v. 
 
 Dunbar v. Todd, 6 Johns. 257; Hill v. Long, 112 Mass. 403, 404; Swaffbrd v. 
 Anderson, 5 Sm. & M. 216, 224. See Ferguson, 3 Lea, 292 ; Oliver v. Houd- 
 Black V. HiUs, 36 HI. 376. let, 13 Mass. 237, 239. 
 
 361 
 
§ 980 PARTIES AND OTHER PARTAKERS. [bOOK II. 
 
 the beginning,^ surely it is but a beneficent administration of 
 justice for the court to speak now the truth the utterance of 
 which can only be postponed, and prevent the losses which 
 may arise from delay. At all events, it is submitted that the 
 law is full of absurdities which the rule of stare dechis can 
 better be disregarded to correct than this doctrine, which is, 
 at the worst, but superfluous. We shall now consider it in 
 reference to particular questions ; thus, — 
 
 § 930. Appointing Attorney or Agent. — It is by all, even 
 including those who deny the general doctrine of this sub- 
 title, held that, subject to an exception about to be stated, 
 the infant's power of attorney under seal,^ or his authoriza- 
 tion of an attorney in whatever form to appear for him in 
 court,^ or any letter of attorney not conveying an interest,* is 
 void. And some of the cases seem to extend the doctrine to 
 every appointment of an agent, whether under seal or not ; 
 so that the infant can do no valid act by agent.^ But other 
 authorities permit his acting by agent or attorney, within 
 limits not well defined, yet including the signing of a promis- 
 sory note for example, when the authorization is not under 
 seal.® And, as an exception universal, his power of attorney 
 to one to receive seisin of an estate conveyed to him — an 
 act manifestl}' for his benefit — is not void but voidable.' 
 So are the authorities. In reason, we shall find it difficult to 
 see why an infant, a person of imperfect capacity, cannot as 
 validly act through another whose capacity has become per- 
 
 1 French v. McAndrew, 61 Missis, h. Dickerson, 72 Ala. 318, 322; Trne- 
 187. blood V. Trueblood, 8 Ind. 195. 
 
 2 Met. Con. 41, 42; Waples v. Has- « Whitney v. Dutch, 14 Mass. 457; 
 tings, 3 Harring. Del. 403 ; Eoof v. Staf- Pottenger v. Steuart, 3 Har. & J. 347 ; 
 ford, 7 Cow. 179, 180; Wambole v. Ward d. The Little Red, 8 Misso. 358; 
 Foote, 2 Dak. 1. Hall v. Jones, 21 Md. 439 ; Alsworth v. 
 
 a Bennett v. Davis, 6 Cow. 393 ; Oli- Cordtz, 31 Missis. 32 ; Belton v. Briggs, 
 
 ver V. Woodroffe, 4 M. & W. 650. See 4 Des. 465 ; Hastings v. DoUarhide, 24 
 
 Anonymous, 3 Mod. 248. Cal. 195; Towle v. Dresser, 73 Maine, 
 
 4 Lawrence v. McArter, 10 Ohio, 37, 252. 
 42 ; Saunderson v. Marr, 1 H. HI. 75. ' Met. Con. 41, 42, citing Bro. Abr. 
 
 6 Thomas v. Roberts, 16 M. & W. Faites, 31 ; 1 Eol. Abr. 730; Abbot v. 
 
 778 ; Tapley v. McGee, 6 Ind. 56 ; Rob- Parsons, 3 Bur. 1794, 1808 ; 1 Woodde- 
 
 bins V. Mount, 4 Rob, N. Y. 553 ; Ar- son, 400. 
 mitage v. Widoe, 36 Mich. 124 ; Flexner 
 362 
 
CHAP. XXXIII.] INFANTS, § 935 
 
 fected by age, and tlierefore presumably furnishing a sort of 
 protection, as by his sole and unguarded self.^ 
 
 § 931. Unequal. — A one-sided agreement, by which the 
 infant is to work a certain time for wages, yet the master 
 may stop the work at pleasure, and retain the wages during 
 the stoppage, — manifestly not for the advantage of the 
 infant, — has been deemed void.^ Again, — 
 
 § 932. Gift. — Probably not every gift by the infant is 
 void ; for there may be circumstances in which it will be to 
 his benefit, so that he may even be chargeable as for a neces- 
 sary with the pi'ice of an article which he is to give away.^ 
 But a conveyance of an infant's land without consideration 
 was held to be void.* 
 
 § 933. Suretyship. — By some, the infant's contract of sure- 
 tyship is deemed void, as not possibly beneficial to him.^ 
 Others hold it to be voidable.® 
 
 § 934. ObUgation with Penalty. — Another form of contract, 
 not deemed possibly beneficial to the infant and therefore 
 void, is an obligation with a penalty.'' 
 
 § 935. Concerning the Authorities. — As to these several 
 propositions, with the exception of the one about the infant's 
 acting by agent, some have attempted to explain away the 
 authorities by showing that the result would be the same on 
 the theory that the contract was voidable. If there were 
 affirmative authorities, as there are not, to the several propo- 
 sitions that these contracts are not void, such a method of 
 reconciling apparent conflicts in the cases would be judicious. 
 But where the courts have from the earliest times uniformly 
 assigned a particular ground for a conclusion always arrived at, 
 it is but the common course, in the absence of anything con- 
 flicting with such ground, to continue to accept it as the law. 
 
 1 And see Whitney v. Dutch, 14 ^ Maples v. Wightman, 4 Conn. 
 Mass. 457, 463 ; Bool w. Mix, 17 Wend. 376. 
 
 119, 131. 6 Owen v. Long, 112 Mass. 403, 404 ; 
 
 2 Keg. V. Lord, 12 Q. B. 757. Fetrow v. Wiseman, 40 Ind. 148 ; Har- 
 8 Ryder v. Wombwell, Law Rep. 3 ner w. Dipple, 31 Ohio State, 72; Wil- 
 
 Ex. 90, 4 Ex. 32. liams v. Harrison, 11 S. C. 412. 
 
 1 Swafford v. Ferguson, 3 Lea, 292. ' Baylis v. Dineley, 3 M. & S. 477 ; 
 
 See Oxley v. Tryon, 25 Iowa, 955 ; Per- Fisher v. Mowbray, 8 East, 330. 
 
 son V. Chase, 37 Vt. 647. 
 
 863 
 
§ 937 PARTIES AND OTHER PARTAKERS. [BOOK 11. 
 
 VI. Affirmance and Disaffirmance of the Voidable Contract.^ 
 
 § 936. By whom. — The privilege of infancy is personal. 
 During the infant's life, he only can avail himself of it; 
 after his death, only his heir or administrator.^ Neither his 
 guardian can, during minority ; ^ nor, even when he becomes 
 of age, can his creditor.* But, as just intimated, his executor 
 or administrator,^ or his heir,^ succeeds on his death to his 
 right of avoiding his contract. Or, when he has pleaded his 
 infancy, an adult, whose rights have been thereby affected, 
 can do the same.'' 
 
 § 937. Time and Manner in General. — The cases are ob- 
 scure and discordant as to what is an avoidance and what a 
 confirmation, and at what time either act should be per- 
 formed. There is a difference between an executory con- 
 tract and an executed one ; ^ the latter, we have seen,^ vests 
 in the other party whatever interest the infant undertakes to 
 transmit, therefore it is good until avoided. The avoidance 
 may be after he attains his majority ; or, on principle, and 
 partly on the authorities, before. When, after majority, be 
 has aflSrmed his contract, he is too late to disaffirm. The 
 disaffirmance must be by some act distinct and positive, leav- 
 ing no doubt of the intent. Quite otherwise is it with the 
 executory contract.^" If the infant is sued on it, whether 
 before or after becoming of age, and if he has not since his 
 majority confirmed it, the infancy is a perfect defence ; nor 
 
 1 Compare with ante, § 809-866. * Kendall v. Lawrence, 22 Pick. 540, 
 
 2 Ante, § 905 ; 2 Inst. 483 ; Hill v. 543. 
 
 Keyes, 10 Allen, 258, 260; Hartness v. 6 Smith ». Mayo, 9 Mass. 62; Hus- 
 
 Thompson, 5 Johns. 160; Van Biamer sey v. Jewett, 9 Mass. 100; Martin v 
 
 U.Cooper, 2 Johns. 279; Brown v. Mayo, 10 Ma.ss. 137, 139; Jefford v. 
 
 Caldwell, 10 S. & R. 114; Rose v. Dan- Ringgold, 6 Ala. 544; Counts v. Bates, 
 
 iel, 3 Brev. 438 ; Worcester v. Eaton, 13 Harper, 464. 
 
 Mass. 371, 375; Coan v. Bowles, 1 « Whittingham's Case, 8 Co. 42 6; 
 
 Show. 165, 171; Baldwin ». Rosier, 1 Veal u. Fortson, 57 Texas, 482, 487. 
 
 McCrary, 384 ; Holmes v. Eice, 45 Mich. ' Shrock v. Growl, 83 Ind. 243. 
 
 142; Beardsley v. Hotchkiss, 96 N. Y. 8 Ante, § 919-921, 927. 
 
 201 ; Bozeman v. Browning, 31 Ark.364. 9 Ante, § 927. 
 
 * Oliver v. Houdlet, 13 Mass. 237, i" Eureka Co. v. Edwards, 71 Ala. 
 
 240 ; Irvine v. Crockett, 4 Bibb, 437. 248. 
 
 864 
 
CHAP. XXXIII.] 
 
 INFANTS. 
 
 § 938 
 
 does it ever bind him except upon such confirmation. The 
 nature of the confirming act, and the time for it, will vary 
 with the sort of case. Should the adjudications ever be 
 reconciled, and those which cannot be brought into line with 
 the rest overruled, doubtless these distinctions indicate the 
 way in which it will be done.^ To call to mind some par- 
 ticulars, and partly to restate, — 
 
 § 938. Before or after Majority. — We have jUSt seen that, 
 of necessity, the infant may avoid his executory contract as 
 well during infancy as afterward ; and ordinarily it is the 
 same of his executed contract.^ But there is a distinction 
 sometimes taken. All hold that, during minority, he may 
 rescind his sale or mortgage of any chattel.^ But where he 
 has conveyed away his real estate by deed, some and perhaps 
 most courts permit him simply to re-enter and take the rents 
 and profits, yet not finally to disaffirm the deed until he be- 
 comes of age.* A disaffirmance, though made while he is yet 
 
 1 1 Chit. Con. nth Am. ed. 218,219, 
 and notes; Irvine v. Irvine, 9 Wal. 617 ; 
 Skinner w. Maxwell, 66 N. C. 45 ; Spen- 
 cer V. Carr, 45 N. Y. 406 ; Shropshire v. 
 Barns, 46 Ala. 108 ; Robinson v. Weeks, 
 56 Maine, 102 ; Tucker v. Moreland, 10 
 Pet. 58; Judkins v. Walker, 17 Maine, 
 38; Lowe v. Sinklear, 27 Misso. 308; 
 Thomas v. Dike, 1 1 Vt. 273 ; Hoxie v. 
 Lincoln, 25 Vt. 206 ; Abbot v. Parsons, 
 
 3 Bur. 1794, 1804; Harris v. Cannon, 6 
 Ga. 382 ; Harrison v. Adcock, 8 Ga. 68 ; 
 Phillips V. Green, 3 A. K. Mar. 7 ; Der- 
 rick V. Kennedy, 4 Port. 41 ; JefFord v. 
 Ringgold, 6 Ala. 544 ; Thomasson v. 
 Boyd, 13 Ala. 419; Phillips v. Green, 5 
 T. B. Monr. 344 ; Murray u. Shanklin, 
 
 4 Dev. & Bat. 289 ; Smith v. Mayo, 9 
 Mass. 62, 64 ; Ford v. Phillips, 1 Pick. 
 202; Thompson v. Lay, 4 Pick. 48; 
 Proctor V. Sears, 4 Allen, 95 ; Wilcox v. 
 Boath, 12 Conn. 550; Goodsell v. My- 
 ers, 3 Wend. 479 ; Edgerly v. Shaw, 5 
 Post. N. H. 514 ; Millard v. Hewlett, 19 
 Wend. 301 ; Armfield v. Tate, 7 Ire. 
 258 ; Reed v. Boshears, 4 Sneed, Tenn. 
 118; Buckner v. Smith, 1 Wash. Va. 
 296; Stokes v. Brown, 4 Chand. 39; 
 
 Whitney v. Dutch, 14 Mass. 457, 461 ; 
 Orvis V. Kimball, 3 N. H. 314; Hoit v. 
 Underbill, 10 N. H. 220; Emmons v. 
 Murray, 16 N. H. 385 ; Richardson 
 V. Bori'ght, 9 Vt. 368 ; Wright v. Ger- 
 main, 21 Iowa, 585 ; Deason v. Boyd, 1 
 Dana, 45 ; and multitudes of other cases, 
 in absolute discord. 
 
 2 Vent V. Osgood, 19 Pick. 572; 
 Heath v. West, 6 Post. N. H. 191 ; 
 Carr v. Clough, 6 Post. N. H. 280; 
 Grace v. Hale,' 2 Humph 27; Shipman 
 V. Horton, 17 Conn. 481; Walker v. 
 Ellis, 12 111. 470; Heath v. West, 8 
 Post. N. H. 101 ; under the Iowa code, 
 Childs V. Dobbins, 55 Iowa, 205 ; Mur- 
 phy V. Johnson, 45 Iowa, 57 ; Beller v. 
 Marchant, 30 Iowa, 350. 
 
 3 Towle V. Dresser, 73 Maine, 252, 
 256 ; Miller v. Smith, 26 Minn. 248 ; 
 Betts V. Carroll, 6 Misso. Ap. 518; 
 Dunton v. Brown, 31 Mich. 182; Cha- 
 pin V. Shafer, 49 N. Y. 407, 412 ; Staf- 
 ford V. Roof, 9 Cow. 626, 628 ; Indian- 
 apolis Chair Manuf. Co. v. Wilcox, 59 
 Ind. 429. 
 
 * Abbot V. Parsons, 3 Bur. 1794, 
 1808; Stafford v. Roof, supra, at p. 
 
 365 
 
§ 940 PARTIES AND OTHEE PARTAKERS. [BOOK II. 
 
 an infant, is conclusive ; for it revests the property in him, 
 and he can now no more than in the first instance transmit 
 the title to the other party without his consent.* It is sub- 
 mitted that, in principle, the doctrine which all hold to govern 
 personal property should be applied also to real. When an 
 infant has improvidently conveyed away his lands, to refuse 
 him the privilege of owning them again until he is twenty- 
 one, yet to permit him to occupy them and take the profits, 
 and finally at his majority to make the sale good or ill as he 
 pleases, is to throw into a tangle both his rights and those of 
 his vendee with nothing but detriment to either. 
 
 § 939. Disa£Srming All or None. — The infant cannot avoid 
 part of his contract and affirm a part ; his act must cover the 
 whole or none.^ For example, if he has bought goods, and 
 given a mortgage back to secure the pay, he cannot affirm the 
 sale and disaffirm the mortgage.^ Hence, — 
 
 § 940. Give back. — An infant rescinding an executed con- 
 tract should in general restore what he received under it.* 
 And after the rescission by him of any contract executory or 
 executed, if there is in his possession any article which he 
 had from the other party as a consideration for it, such party 
 may take the article, or may recover it by process of law.^ 
 But the right of rescission by the infant is superior to the 
 right of the adult to have back the thing ; so that, if the for- 
 mer has parted with it and has it not, he may still rescind, 
 though he does not return either the thing or its equivalent.^ 
 
 628 ; Bool V. Mix, 17 "Wend. 119, 132 ; Texas, 397 ; Pursley v. Hays, 17 Iowa, 
 
 McCormic v. Leggett, 8 Jones, N. C. 310; Stuart v. Baker, 17 Texas, 417; 
 
 4Q.5 ; Welch v. Bunce, 83 Ind. 382 ; Carr v. Clough, 6 E'ost. N. H. 280. 
 Dunton v. Brown, 31 Mich. 182. 6 Badger v. Phinney, 15 Mass. 359; 
 
 1 Edgerton v. Wolf, 6 Gray, 453, Carpenter v. Carpenter, 45 Ind. 142; 
 457,458. Bennett!). McLaughlin, 13 Bradw. 349; 
 
 2 Ante, § 679, 836. Skinner v. Maxwell, 66 N. 0. 45. 
 
 3 Curtiss V. McDongal, 26 Ohio 6 Chandler v. Simmons, 97 Mass. 
 State, 66 ; Heath i>. West, 8 Fost. N. H. 508, 514 ; Manning v. Johnson, 26 Ala. 
 101 ; Weed v. Beebe, 21 Vt. 495 ; Young 446 ; Dill v. Bowen, 54 Ind- 204 ; Bran- 
 V. McKee, 13 Mich. 552. don v. Brown, 106 111. 519; Green v. 
 
 < Ante, § 679, 818, 919, 921 ; Smith Green, 69 N. Y. 553, 556, 557; Eureka 
 
 V. Evans, 5 Humph. 70; Strain i: Co. «. Edwards, 71 Ala. 248; Brantley 
 
 Wright, 7 Ga. 568 ; Hill v. Anderson, 5 v. Wolf, 60 Missis. 420. See ante, § 920, 
 
 Sm. & M. 216; Kitchen v. Lee, 11 921. 
 Paige, 107 ; Womack v. Woraack, 8 
 
 366 
 
CHAP. XXXIII.] INFANTS. § 942 
 
 § 941. AfBrming and Disaffirming Executed. — There can be 
 no ratification of any contract during minority ; ^ for, like the 
 contract itself, it would be voidable and so work no change 
 therein. When the infant has reached his majority he can, 
 without any fresh consideration,^ ratify his contract, and then 
 a disaffirmance will come too late.^ If lie receives a promis- 
 sory note for work done, and does not offer to return it for 
 eight months after he becomes of age ; * or, if he buys goods 
 on credit, then after becoming of age retains and uses them 
 for an unreasonable time without doing anything in disaffirm- 
 ance ; ^ or, if he takes a deed of land, giving back a mortgage, 
 then continues in possession after reaching his majority ; ^ or, 
 if, after majority, he continues in the possession of an estate 
 which had been leased to him,'' — in these and other like 
 cases he confirms the transaction, and he cannot afterward 
 recede therefrom. 
 
 § 942. Continued — (Estate conveyed away). — If, during 
 infancy, the infant or his guardian had conveyed away an 
 estate, a receipt of the purchase money after majority will 
 confirm the sale.^ Or perhaps, or in some circumstances, if he 
 reteins or disposes of the consideration after majority, he does 
 thereby the same thing ; ^ but this sort of case should not be 
 confounded with one wherein, while a minor, he parted with 
 the consideration, so that its return is not necessary in a disaf- 
 firmance.^" A fresh deed,^^ or a distinct acknowledgment in 
 
 1 Black V. Hills, 36 III. 376. 680. Compare with Self v. Taylor, 33 
 
 2 Ante, § 81, 94-98, 620, 683, 804, La. An. 769 ; Highley v. Barron, 49 
 806, 829 ; post, § 943. Misso. 103. 
 
 3 Ante, § 784, 844 ; Conaway v. Shel- 9 Brantley v. Wolf, 60 Missis. 420 ; 
 ton, 3 Ind. 334 ; Kennedy v. Doyle, 10 Bingham ?;. Barley, 55 Texas, 281. 
 Allen, 161 ; Henry v. Root, 33 N. Y. Compare with Benham v. Bishop, 9 
 526; Southerton v. Whitlock, 1 Stra. Conn. 330. 
 
 690. 1" Ante, § 940; Green v. Green, 
 
 * Delano v. Blake, 11 Wend. 85. 69 N. Y. 553 ; Miles v. Lingerman, 24 
 
 s Boyden v. Boyden, 9 Met. 519. Ind. 385 ; Reynolds v. McCurry, 
 
 6 Hubbard w. Cummings, 1 Greenl. 100 111. 356 ; Dawson v. Helmes, 30 
 
 11 ; Henry ». Root, 33 N. Y. 526 ; Dana Minn. 107; Richardson u. Pate, 93 
 
 V. Coombs, 6 Greenl. 89. And see Ind. 423. 
 
 Barnaby v. Barnaby, 1 Pick. 221. " Phillips v. Green, 5 T. B. Monr. 
 
 1 1 Chit. Con. nth Am. ed. 217. 344; Murray v. Shanklin, 4 Dev. & 
 
 8 Parmele v. McGinty, 52 Missis. Bat. 289. 
 
 475; Douglas v. Bennett, 51 Missis. 
 
 367 
 
943 
 
 PARTIES AND OTHER PARTAKERS. [BOOK II. 
 
 another deed,^ may constitute a ratification ; and so may any 
 other act or conduct, when such as necessarily to exclude the 
 contrary interpretation.^ But mere silence, with no action 
 taken, is different. And, by a part of the courts, it is held not 
 to preclude a disaffirmance so long as the Statute of Limita- 
 tions has not run against the right.* Other courts hold that 
 mere delay may amount to an affirmance ; resulting in the doc- 
 trine that the disaffirmance must be within a reasonable time, 
 which will vary with the circumstances,* after majority.^ A 
 conveyance — under the formalities which the particular case, 
 in the particular State, requires — of the thing, whether lands 
 or goods, to another person, is a common and adequate form 
 of disaffirmance.® So also, as to lands, is a writ of entry.^ 
 Or a mere entry and declaration appear to be enough ; ^ and 
 various other obvious methods will suffice.® 
 
 § 943. Confirmation of Executory. — It has already been 
 
 1 Losey v. Bond, 94 Ind. 67. 
 
 2 Emmons v. Murray, 16 N. H. 385 ; 
 Rensselaer v. Whitlock, 1 Johns. Cas. 
 213, 215, 219 ; Lynde v. Budd, 2 Paige, 
 191 ; Kline v. Beebe, 6 Conn. 494 ; Hart- 
 man V. Kendall, 4 Ind. 403 ; Wheaton o. 
 East, 5 Yerg. 41 ; Summers v. Wilson, 
 2 Coldw. 469; Houser v. Reynolds, 1 
 Hayw. 143. 
 
 8 Urban v. Grimes, 2 Grant, Pa. 96 ; 
 Voorhies v. Voorhies, 24 Barb. 150; 
 Hughes V. Watson, 10 Ohio, 127; Wal- 
 lace V. Latham, 52 Missis. 291, 297; 
 Allen V. Poole, 54 Missis. 323. And see 
 1 Pars. Con. 325, 326. 
 
 * Thompson v. Strickland, 52 Missis. 
 574 ; Sims v. Bardoner, 86 Ind. 87 ; 
 Davis V. Dudley, 70 Maine, 236 ; Terry 
 V. McClintock,41 Mich. 492 ; Hoover v. 
 Kinsey Plough Co. 55 Iowa, 668. 
 
 ^ Long V. Williams, 74 Ind. 115; 
 Nathans v. Arkwright, 66 Ga. 179; 
 Jones V. Jones, 46 Iowa, 466 ; Green v. 
 Wilding, 59 Iowa, 679 ; it is so by stat- 
 ute in Iowa, Weaver v. Carpenter, 42 
 Iowa, 343 ; Scranton v. Stewart, 52 Ind. 
 68 ; Goodnow v. Empire Lumber Co. 
 31 Minn. 468 ; Jamison v. Smith, 35 
 La. An. 609 ; Miller v. Smith, 26 Minn. 
 248; Wilson v. Branch, 77 Va. 65. 
 Qfi8 
 
 And see Stringer v. Northwestern Mnt. 
 Life Ins. Co. 82 Ind. 100; Green v. 
 Green, 69 N. Y. 553 ; Hull v. Jones, 10 
 Lea, 100; Richardson v. Pate, 93 Ind. 
 423; Sims v. Smith, 86 Ind. 577; 
 Blankenship v. Stout, 25 111. 132; Cole 
 V. Pennoyer, 14 III. 158. 
 
 6 Wallace v. Carpenter, 11 Johns. 
 539 ; Brayton v. Burchin, 14 Johns. 
 124; Tucker v. Moreland, 10 Pet. 58; 
 Cresinger v. Welch, 15 Ohio, 156 ; Har- 
 ris V. Cannon, 6 Ga. 382; Harrison ». 
 Adcock, 8 Ga. 68 ; Pitcher v. Laycoek, 7 
 Ind. 398 ; Peterson v. Laik, 24 Misso. 
 541 ; McGan v. Marshall, 7 Humph. 
 121 ; Dawson v. Helmes, 30 Minn, 107; 
 Riggs V. Fisk, 64 Ind. 100 ; Dixon v. 
 Merritt, 21 Minn. 196. And see Slaugh- 
 ter V. Cunningham, 24 Ala. 260; Wil- 
 liams V. Norris, 2 Litt. 157; Leitens- 
 dorfer v. Hempstead, 18 Misso. 269. 
 
 ' Chadbourne v. Rackliff, 30 Maine, 
 354. 
 
 8 Bool V. Mix, 17 Wend. 119. 
 
 9 McGill V. Woodward, 3 Brev. 401 ; 
 Voorhies v. Voorhies, 24 Barb. 150; 
 Graves v. Hickman, 59 Texas, 381 ; 
 French v. McAndrew, 61 Missis. 187; 
 Wilie V. Brooks, 45 Missis. 542. 
 
CHAP. XXXIII.] INFANTS. § 944 
 
 shown that no disaffirmance of an executory contract is neces- 
 sary, and that it will bind the infant only when after majority 
 he has confirmed it.^ But the confirmation requires only a 
 promise, no fresh consideration need be added.^ And there 
 must be either an express promise, made to the party or his 
 agent, or its equivalent in implication, corresponding to what 
 is required in a new contract.^ Any form of words which 
 may be construed as amounting to such promise will suffice ; * 
 a mere acknowledgment of indebtedness will not^^ nor will a 
 part payment,® nor will a promise to a stranger J Nor is the 
 retention of the consideration after becoming of age a ratifica- 
 tion.* A conditional promise will be deemed such, yet only 
 on proof that the condition has been fulfilled.^ A continuing 
 contract may be treated as confirmed where the infant simply 
 goes on with its performance, without notice, after reaching 
 his majority .i" 
 
 § 944. Further as to which. — The infant's ratification 
 renders his contract good from the beginning.^^ Therefore 
 the suit against him may be based on his original promise,^^ 
 but it must not be commenced before the ratification was 
 made.^^ In a few of our States, statutes, following English 
 
 1 Ante, § 920, 937 ; Stone v. Wythi- 118 ; Armfield v. Tate, 7 Ire. 258 ; Conk- 
 pol, Cro. Eliz. 126. lin v. Ogbom, 7 Ind. 553. 
 
 2 Ante, § 941 ; Edmond's Case, 3 6 Catlin v. Haddox, 49 Conn. 492. 
 Leon. 164; Barton's Case, 4 Leon. 5. ' Bigelow v. Grannis, 2 Hill, N. Y. 
 
 8 Goodsell I'. Myers, 3 Wend. 479 ; 120; Hoit v. Underbill, 9 N. H. 436. 
 Millard v. Hewlett, 19 Wend. 301; ' Benham i;. Bishop, 9 Conn. 330; 
 
 Turner v. Gaither, 83 N. C. 357 ; Gay v. Thing v. Libbey, 16 Maine, 55. 
 Ballon, 4 Wend. 403 ; Orvis v. Kimball, ' Chandler v. Glover, 8 Casey, Pa. 
 
 3 N. H. 314; Hoit v. Underbill, 10 509; Cole a. Saxby, 3 Esp. 1 59 ; Davies 
 N. H. 220; Smith v. Kelley, 13 Met. v. Smith, 4 Esp. 36; Thompson v. Lay, 
 309. 4 Pick. 48 ; Everson v. Carpenter, 17 
 
 * Martin v. Mayo, 10 Mass. 137; Wend. 419. 
 
 Bamaby v. Bamaby, 1 Pick. 221 ; Bobo i" Goode v. Harrison, 5 B. & Aid. 147 ; 
 
 V. Hansen,. 2 Bailey, 114; Whitney v. Miller v. Sims, 2 Hill, S. C. 479 ; Tobey 
 
 Dutch, 14 Mass. 457. v. Wood, 123 Mass. 88 ; Holmes v. Blogg, 
 
 6 Smith V. Mayo, 9 Mass. 62, 64 ; 8 Taunt. 35. 
 
 Ford V. Phillips, 1 Pick. 202 ; Thomp- ^i Ante, § 849. 
 
 son«. Lay, 4 Pick. 48 ; Proctor r. Sears, ^^ Whitney v. Dutch, 14 Mass. 457, 
 
 4 Allen, 95 ; Wilcox w. Eoath, 12 Conn. 461; West v. Penny, 16 Ala. 186. 
 550; Edgerly v. Shaw, 5 Post. N. H. And see Jackson v. Mayo, 11 Mass. 
 514 ; Alexander v. Hntcheson, 2 Hawks, 147. 
 
 535 ; Reed v. Boshears, 4 Sneed, Tenn. " pord v. Phillips, 1 Pick. 202 ; Mer- 
 24 369 
 
§ 946 PARTIES AND OTHER PARTAKERS. [BOOK 11. 
 
 legislation,^ require such affirmance to be in writing.^ Aside 
 from a statute of this sort, the infant's bond with a penalty, 
 being void and not voidable,^ cannot be ratified by parol ; * 
 for a void instrument does not admit of ratification.^ Yet, in 
 principle, and it is believed equally on authority, the infant's 
 oral confirmation of either his voidable specialty or his voida- 
 ble simple contract in writing, where the law has made a 
 seal or writing necessary, is good.® The principle is, that 
 the ratification is a waiver of the right, which the law 
 has given, to rely on the defence of infancy ; such waiver 
 is a thing quite separate from the contract itself; and, 
 under the rules of the unwritten law, it need never, to 
 be effectual, be under seal, or in writing, or founded on a 
 consideration.'^ 
 
 § 945. other Questions, — relating to the present topics, 
 are solved by the expositions in other parts of this volume ; 
 as, in the chapters on Law and Fact,^ on Void and Voidable,^ 
 on Election and Waiver,!" on Rescission,^' and on Ratification 
 and Release.'^ 
 
 § 946. The Doctrine of this Chapter restated. 
 
 Infancy continues until the age of twenty-one years ; which, 
 as the period of freedom from the restraints required for 
 nurture and education, is necessarily arbitrary, yet on the 
 whole just. In natural reason, an intelligent young man who 
 lacks a day only of being twentj'-one should not stand on 
 the same footing, as to the power of contract, with a boy of 
 four. Nor in all respects does he in law. Yet if, at these 
 
 riam v. Wilkins, 6 N. H. 432 ; Thing v. * Baylis v- Dineley, 3 M. & S. 477. 
 Libbey, 16 Maine, 55. 6 Ante, § 614, 846. 
 
 1 9 Geo. 4, c. 14, § 5 (a.d. 1828), « Houser v. Eeynolds, 1 Hayw. 143; 
 afterward superseded by 37 & 38 Vict. Little v. Duncan, 9 Rich. 55 ; Irvine ». 
 c. 62, § 2, nearly to the same effect, and Irvine, 9 Wal. 617. 
 
 expressly repealed by 38 & 39 Vict. c. ' Ante, § 94-98, 793, 804. 
 
 66 ; Hartley v. Wharton, 11 A. & E. 8 Ante, § 461 et seq. 
 
 934 ; Ex parte Kibble, Law Rep. 10 » Ante, § 610 et seq. 
 
 Ch. Ap. 373. l" Ante, § 777 et seq. 
 
 2 Stem V. Freeman, 4 Met. Ky. 309 ; " Ante, § 809 et seq. 
 Thurlow V. Gilmore, 40 Maine, 378. l" Ante, § 843 et seq. 
 
 » Ante, § 934. 
 
 370 
 
CHAP. XXXIII.] , INFANTS. § 946 
 
 extremes of age, we can distinguish between the two classes 
 of infants as to their capacity for contracting, and point out 
 some of the differences, we sliall find the books inadequate 
 guides to others ; nor do they show us, with any great 
 minuteness, as we draw the extremes together, at what 
 periods, and how much, and how, the differences dwindle, 
 and where the two blend. In the criminal law, one under 
 seven years cannot become punishable, and one over fourteen 
 is as liable to punishment as an adult, while between those 
 ages evidence of actual capacity may be submitted to the 
 tribunal.^ In the matrimonial law, a boy and girl of seven 
 may enter into such an "inchoate and imperfect marriage" 
 that, if she becomes a widow at nine, the common law will 
 give her dower ; and a boy of fourteen and a girl of twelve 
 may marry as effectually as at their majority, — ages which 
 have been varied by statutes in some of our States.^ A boy 
 under fourteen, as the law is generally held, cannot become 
 legally guilty of rape, whatever ravishment he ma}'' in fact 
 perpetrate.^ But refinements like these have not been carried 
 into the ordinary law of contracts. Actual consent to the 
 thing which constitutes a crime is required in the criminal 
 law ; * yet, in various circumstances, the law will create a con- 
 tract between persons who do not in fact concur therein, and 
 even whose wills affirmatively oppose.^ In this way infants 
 often have contracts imposed upon them where they could 
 not bind themselves.® Yet not often will the simple assent 
 of their wills hold them.'^ A contract which cannot be bene- 
 ficial to the infant is void ; that is, it' transfers nothing, and 
 it cannot be enforced against either party. One which may 
 be beneficial, even though the court cannot foresee whether 
 it will be or not, binds the adult party, but the infant may 
 avoid it or not at his election. Hence it is termed voidable. 
 Practically, most contracts of infants are found to be of the 
 latter sort. 
 
 1 1 Bishop Crim. Law, § 368 et seq. ' Ante, § 181 et seq. 
 
 2 1 Bishop Mar. & Div. § 143-153. ^ Ante, § 906-916. 
 8 2 Bishop Crim. Law, § 1117. ' Ante, § 917-923. 
 * 1 lb. § 287-291, 301-310, 327, 346. 
 
 371 
 
948 PARTIES AND OTHER PARTAKERS. [BOOK II. 
 
 CHAPTER XXXIV. 
 
 MAKEIED WOMEK. 
 
 § 947. What for this Chapter. — The subject of the con- 
 tracts of married women is too vast to be elucidated in detail 
 in a work like this. We shall, therefore, consider only some 
 of its leading principles, in a manner enabling the reader the 
 better to enter upon its minuter study in other works and in 
 the cases. And the author is the more reconciled to this 
 course from the fact that, in other books of his own, he has 
 already explained the subject in fuU.^ 
 
 § 948. Law Imperfect. — There is no topic which more 
 aptly than this illustrates the universal truth, that human 
 laws are of necessity imperfect, often in their results coming 
 far short of the exact justice which is understood to be meted 
 out by the divine. Marriage is the fundamental institution 
 of society. Every individual marriage, even before children 
 have been added to the family, and especially after, affects 
 the interests of many more persons than the two parties them- 
 selves. From which and other reasons, the law does not and 
 should not suffer its dissolution from the mere will of the 
 parties. If divorces are, as it is believed they ought to be, 
 permitted in a few exceptional cases, still it is impossible to 
 devise any statute in the operation of which the bond of mar- 
 riage will never be wrongfully severed on the one hand, and 
 on the other hand no persons will be compelled to remain in 
 matrimony whom fundamental justice would require to be 
 divorced. And when we descend to the property rights of 
 the respective married parties, we find, if we look carefully 
 
 1 And see ante, § 29, 148, 201, 229, 235, 237, 583, 727, 906, 910. 
 372 
 
CHAPi. XXXIV.J MARRIED WOMEN. 
 
 and considerately, the question still more difficult; though, 
 if we take but superficial views, all will seem plain and easy. 
 For example, one looking at the question supeificially might 
 say, that the law of partnership should be extended to huS' 
 band and wife, thus making the two equal, and burying the 
 supposed superior rights of the husband. But while we 
 have, of late, various legislative experiments made in the in- 
 terest of equality, it is believed that this one has never been 
 tried. And when we extend our thoughts a little, we dis- 
 cover an insuperable objection to it. The law of partnership 
 puts it in the power of the one partner to ruin the other by im- 
 provident or fraudulently-intended contracts ; the remedy for 
 which is the absolute right of dissolution, to be exercised by 
 either at pleasure. But to permit the husband or wife to 
 terminate the marriage in the same way would annihilate the 
 institution itself. Another device of the superficial mind, 
 often suggested, yet not hitherto carried into legislation, is 
 for the husband and wife to pass through their married lives 
 absolutely independent of each other in respect of property, 
 the same as though they were not married. But the difficul- 
 ties of this arrangement would be insurmountable. If the 
 wife spends an afternoon in visiting her mother instead of 
 making jellies, shall the husband bring her into court to 
 determine the abatement to be made from the sum he had 
 promised her for work in keeping his boarding-house ? Shall 
 there be a lawsuit to settle the allowance for tending the 
 baby which is partly his and partly hers? If her washing is 
 sent to a laundress, and her clothes had been soiled in part 
 in doing his work and in part in doing her own, and in part 
 in tending the baby of both, shall the judge of a court be 
 employed in instructing the jury how to adjust the account 
 between them ? But it is needless to go on with these ques- 
 tions. Gravely as this thing has been proposed by men who 
 have had not a particle of doubt of their own superior wis- 
 dom, there is little danger that legislation will ever descend 
 so low in folly as to give statutory form to the idea. The 
 power which makes marriage tolerable, and for the majority 
 desirable, is the mutual love and respect of the parties ; the 
 
 373 
 
§ 949 PARTIES AND OTHER PAETAKEES. [BOOK II. 
 
 consequence of which is, that, whatever the law may be, they 
 neither think of its provisions nor care for or attempt to 
 follow them. Hence, — 
 
 § 949. Law of the Common-law Courts. — From the early 
 times downward, the law as administered in the common-law 
 courts has made the husband the head of the family, has 
 vested in him a life estate in the wife's realty, and absolute 
 ownership of her personal property in possession, but not of 
 her personal rights in action ; ^ has made her incapable of 
 suing or being sued alone, so that he must join or be joined 
 wiih her in all lawsuits regarding her own effects and debts 
 due to and from her, and her personal rights and wrongs ; ^ 
 has placed him under the duty, whether she brought to him 
 property, or capacity for work, or not, to maintain her ; ^ has 
 forborne to cast on her the duty of maintaining him, what- 
 ever her ability and his necessities ; * has vested her earnings 
 in him ; ^ and, as a consequence of the joinder of her husband 
 in her lawsuits, has made him answerable for her ante-nuptial 
 debts, if the suit is carried to judgment during his life, and 
 in like manner answerable for her ante-nuptial and post- 
 nuptial torts.® One of the consequences of all which is, that 
 she can bind herself by no contract, and her formal under- 
 taking is not voidable but void.'^ Considering that much 
 oftener than otherwise girls on their marriage do not bring 
 valuable estates to their husbands, that the greater part of 
 married people spend most or all of their income in living, 
 and that the law gives to the widow a part of her deceased 
 husband's property, it cannot be said that these provisions of 
 the common law are not as beneficent as any other in the 
 
 1 1 Bishop Mar. Women, § 62-155, Obrian v. Ram, 3 Mod. 186; Heyward's 
 528-579, 883, 884. Case, Sir F. Moore, 761. 
 
 2 lb. § 903-913. ' 1 Bishop Mar. Women, § 842 ; 
 8 lb. § 49, 57, 58, 887, 892, 894- Norris k. Lantz, 18 Md. 260; Lambert 
 
 897 ; 1 Bishop Mar. & Div. § 550- v. Atkins, 2 Camp. 272 ; Morris v. Nor- 
 
 581. folk, 1 Taunt. 212; Edwards r. Davis, 
 
 * 1 Bishop Mar. Women, § 49, 892. 16 Johns. 281 ; Rogers v. Higgins, 48 
 
 6 lb. § 21, 102, 104, 212-215, 111. 21 1 ; Hyner w. Dickinson, 32 Ark. 
 
 886. 776 ; Weed Sewing Machine Co. v. 
 
 8 lb. §58, 60, 842, 905, 910-912; Maxwell, 63 Misso. 486; Farrar V, 
 
 Miles V. Williams, 10 Mod. 160, 163; Bessey, 24 Vt. 89. 
 374 
 
CHAP. XXXIV.] MARRIED WOMEN. § 951 
 
 average case, however hard in exceptional instances they are 
 upon the woman. But equity, administered in the equity 
 tribunals, grew up side by side with the law of the common- 
 law courts. And its rules furnish a remedy for many of the 
 hard cases. Thus, — 
 
 § 950. Law of the Equity Courts. — It must be remembered 
 that, wherever the common-law and equity tribunals differ in 
 their rules, those of the latter prevail ; and they, and not the 
 former, are the true law of the land. The consequence of 
 which is, that only in part are the doctrines of the last section 
 unwritten law with us. If, then, parties about to be married 
 desire to be governed in their pecuniary affairs by rules differ- 
 ent from those set down in the last section, and especially if 
 they wish the woman to retain the ownership of her property 
 and the right to control it, or to retain any other power of 
 contract, the rules of our unwritten law, as administered 
 in the equity tribunals, permit them to express their wish 
 in an ante-nuptial agreement, and it will be given full 
 effect. And, beyond this, equity concedes to the wife, even 
 in the absence of such agreement, a considerable power of 
 contract.^ The husband's duty to support the wife, and 
 the manner of its enforcement, are fully explained in the 
 author's " Marriage and Divorce ; " ^ the other topics, in his 
 " Married Women." 
 
 § 951. statutory Changes. — In nearly all of our States, and 
 of late in England, there are statutes which, to a greater or 
 less extent, endow the wife, at law, with rights and powers 
 before available to her only in equity. And some of these 
 statutes confer on her something of what neither law nor 
 equity gave her before. At the same time, they pretty gen- 
 erally relieve the husband of the obligation to pay her ante- 
 nuptial debts. The author is not aware that any of them 
 take from him the duty to maintain her, while commonly they 
 
 1 Freeman v. More, 1 Bro. P. C. 237 ; Barron v. Barron, 24 Vt. 375 ; Butler v. 
 
 Gosden v. Tucker, 6 Munf. 1 ; Whitten Rickets, 11 Iowa, 107 ; Blake v. Blake, 
 
 V. Whitten, 3 Cush. 191 ; Williams v. 7 Iowa, 46. 
 
 Maull, 20 Ala. 721 ; Wood v. Warden, ^ 1 Bishop Mar. & Div. § 550-656 a ; 
 
 20 Ohio, 518 ; Resor v. Resor, 9 Ind. 2 lb. § 350-524. 
 347; Pinney «. Fellows, 15 Vt. 525; 
 
 3T5 
 
§ 953 PARTIES AND OTHER PARTAKEES. : [BOOK n. 
 
 invest her with the ownership of her earnings. Nor do they 
 compel her, under any circumstances, to support him. And, 
 as earnings on the one hand, and support on the other, are 
 ordinarily the principal pecuniary affaii- of married life, wives 
 have now, in the average case, greatly the advantage over 
 their husbands, if they choose to take what the law gives 
 them. And husband and wife, if in due accord, and mutually 
 inclined to defraud the rest of mankind, have it well in their 
 power to live in wealth, procured, by lawful cheating, from 
 confiding creditors. An unmarried man finds it difficult to 
 transfer to his friend the property with which he ought to 
 pay his debts, because the law is against him. But the trust- 
 ing husband, who has a loving wife, can so arrange his affairs 
 that all the earnings shall be hers and all the expenses his ; 
 whereby, in a short time, his estate is indirectly but efPect- 
 ually transferred to her, while apparently it remains his. He 
 is now in a condition to pile up debts against himself, and fill 
 his wife's hands with money ; he refusing to pay the former, 
 and she clinging to the latter. In all which, the law and his 
 rascality are in sweet accord ; so that, however great, on the 
 whole, the improvement of modern laws over the former ones, 
 they still illustrate the difficulty, not yet surmounted by 
 legislation, of regulating equitably and justly the pecuniary 
 rights of marriage. 
 
 § 952. Further 'Legislative Changes. — Legislation on this 
 subject has, for many years, been seeking rest and finding 
 none. Probably in not a single State of those which have 
 entered upon it has it for any considerable time remained 
 stationary J: and, in some of the States, scarcely a session of 
 the legislature passes without changes. 
 
 § 953. This Subject ~- is of the greatest practical impor- 
 tance to the lawyer, and it is not in general so well under- 
 stood as it ought to be. It requires special study ; for many 
 of its principles are peculiar, not extending into the other 
 departments of the law. Its difficulties grow in the main 
 out of an almost constant blending of law and equity, and 
 out of the interpretations of new statutes. 
 376 
 
CHAP. XXXIV.]. MARRIED WOMEN. §954 
 
 § 954. The Doctrine of this Chapter restated. 
 
 The leading doctrine of this chapter is, that the law has 
 hitherto been unable to devise rules so regulating the con- 
 tracts of married women as to do justice to all persons inter- 
 ested, and in no ease leave any one to suffer. So obvious 
 are the defects of the unwritten law that legislation has in 
 recent times been very busy in attempts to amend it. Yet 
 where it has remedied old evils it has created, perhaps in 
 equal or greater numbers, new ones ; and the ideal good 
 seems far away. It would be useless to prophesy concerning 
 the future. 
 
 377 
 
958 PARTIES AND OTHER PARTAKERS. [BOOK II. 
 
 CHAPTER XXXV. 
 
 INSANE PEESONS.^ 
 
 § 955. Compared with Infancy and Coverture. — It is plain, 
 from the last two chapters, that the incapacities of infancy 
 and coverture differ ; and, from this one compared with 
 them, it will appear that the incapacity of insanity is so 
 unlike either as to render analogies from it of little help. 
 
 § 956. The Principle. — Since parties can enter into a con- 
 tract only through the accord of their minds,^ there can be 
 none where the mind of either lacks the capacity to consent. 
 This is the rule only of the actual contract, not extending to 
 that created by the law ; for, in the latter, consent is not an 
 element.^ And, — 
 
 § 957. other Principles combining. — In the application of 
 this principle it is necessarily brought into conflict with other 
 principles ; and then it often becomes a nice question, which 
 one must give way, and how far, and whether the combina- 
 tion creates any and what doctrine not precisely like either. 
 For, as insanity is not always perpetual or total, the insane 
 person may have rights growing out of his partial or return- 
 ing capacity, or an innocent person contracting with him may 
 appeal to good faith and benefits conferred, or something 
 may be due to the general convenience of life and business, 
 or to what is practically equitable and just. To descend to 
 particulars, — 
 
 § 958. Name and Source of Insanity. — The name and 
 source of the insanity are, as respects these discussions, im- 
 
 ^ Compare with 1 Bishop Crim. Law, ^ Ante, § 313. 
 
 § 374-396. And see ante, § 29, 200, » Ante, § 185, 199, 200, 232, 233. 
 
 232, 233, 618, 656, 735. 
 
 378 
 
CHAP. XXXV.] INSANE PERSONS. § 961 
 
 material. One who is an idiot,^ lunatic,^ or in any other 
 form non compos mentis,^ — in all his faculties, or a monoma- 
 niac as to the particular thing,* — of intellect in a sufficient 
 degree weak,^ imbecile from age,^ or deranged, — is equally 
 incapable of executing a perfectly valid contract. On the 
 other hand, — 
 
 § 959. Lucid Interval — Temporary Insanity. — A person 
 habitually insane has the power of contract in a lucid inter- 
 .val.'^ In like manner, one ordinarily sane is incapacitated if 
 insane at the particular time.* 
 
 § 960. Own Fault — (Drunkenness). — Insanity superin- 
 duced by the fault of the insane person, — as, by his habitual 
 and long-continued drunkenness, — does not differ in legal 
 effect from that by the direct visitation of God.® 
 
 § 961. Limited — (Capacity for Some Things, not Others). — 
 One may have the ability to dispose judiciously of his prop- 
 erty to near friends by will, yet not to comprehend what is 
 necessary for the command of an army. And, in the law, a 
 person is not unfrequently deemed to have capacity to do 
 
 1 Millison v. Nicholson, Conference, Saxton, 100 ; Farnam v. Brooks, 9 Pick. 
 499. 212, 220 ; Green v. Wood, 2 Vern. 632. 
 
 2 Merritt v. Gumaer, 2 Cow. 552; Old age alone does not take away the 
 Carr v. Holliday, 5 Ire. Eq. 167 ; Ward power of contract, it is simply one of 
 V. Kelly, 1 Ind. 101. the causes of mental feebleness ; and, in 
 
 ' Taylor v. Dudley, 5 Dana, 308 ; In most of the cases, its infirmities are 
 
 re Livingston, 34 N. Y. 555 ; Van Deu- considered in connection with fraud, 
 
 sen V. Sweet, 51 N. Y. 378. undue influence, and other like things. 
 
 * Alston V. Boyd, 6 Humph. 504 ; See the foregoing cases, also Stone v. 
 Bond V. Bond, 7 Allen, 1; Boyce v. Wilbern, 83 111. 105; Griffiths v. Rob- 
 Smith, 9 Grat. 704; Eiggs u. American ins, 3 Madd. 191; Lewis v. Pead, I 
 Tract Soc. 95 N. Y. 503. Ves. Jr. 19 ; Shaw b. Ball, 55 Iowa, 55 ; 
 
 s Sentance v. Poole, 3 Car. & P. 1 ; Crowe v. Peters, 63 Misso. 429 ; Wild- 
 Johnson V. Chadwell, 8 Humph. 145; rick k. Swain, 7 Stew. Oh. 167. 
 Beller v. Jones, 22 Ark. 92 ; McFaddin ' Tozer v. Saturlee, 3 Grant, Pa. 162 ; 
 V. Vincent, 21 Texas, 47 ; Hale v. Jones v. Perkins, 5 B. Monr. 222 ; Hall 
 Brown, U Ala. 87; James v. Langdon, v. Warren, 9 Ves. 605; Lilly v. Wag- 
 7 B. Monr. 193; Wilson v. Oldham, 12 goner, 27 111. 395; Beckwith v. Butler, 
 B. Monr. 55 ; Owings's Case, 1 Bland, 1 Wash. Va. 224. 
 
 370; Dodds u. Wilson, 1 Tread. 448; ^ Curtis v. Brownell, 42 Mich. 165; 
 
 Somes V. Skinner, 16 Mass. 348; Co- Jenners w. Howard, 6 Blackf. 240 ; Peas- 
 
 nant v. Jackson, 16 Vt. 335. lee v. Bobbins, 3 Met. 164. 
 
 8 Coleman v. Frazer, 3 Bush, 300 ; ' Bliss v. Connecticut, &c. Railroad, 
 
 Jeneson w. Jeneson, 66 111.259; Keeble 24 Vt. 424; Menkins v. Lightner, 18 
 
 V. Cummins, 5 Hayw. 43 ; Parris v. Cobb, HI. 282. 
 5 Rich. Eq. 450 ; Hinchman v. Emans, 
 
 379 
 
§ 963 PAETIES AND OTHER PARTAKERS. [BOOK II. 
 
 one binding act, but not another.^ Nor is the insanity of 
 the civil department of our law identical with that of the 
 criminal.^ Nor, if a person is unable to make a contract, is 
 the consequence inevitable that he should or may be physi- 
 cally restrained.^ And, as to contract only, it is evident that 
 one may possess the faculties required for entering into a 
 particular agreement, yet not into another, because of the 
 differing natures of their subjects.* The inquiry is always as 
 to the particular thing. In general, — 
 
 § 962. Insanity as to Contract, defined. — In the law of 
 contracts, insanity is such disease, weakness, or other imper- 
 fection or derangement of the mind as disqualifies it, when 
 entering into the form of a contract,^ to comprehend the 
 subject of it, and its nature and probable consequences.® 
 Hence, — 
 
 § 963. Degree and Kind. — There may be delusions on inde- 
 pendent subjects,'^ or even a general insanity,® which will not 
 impair a contract. The derangement must cover its special 
 matter, and be in degree sufficient to satisfy the definition 
 just given.3 Thus, one who is a monomaniac in religion,^" 
 or "of exceeding weak and feeble intellect and incapable 
 of taking care of himself," " or vacillating and shiftless,^^, — 
 
 1 1 Bishop Mar. & Div. § 126-128 ; ' Lozear v. Shields, 8 C. E. Green, 
 Howard v. Coke, 7 B. Monr. 655 ; Con- 509. 
 
 verse v. Converse, 21 Vt. 168; Kinne v. ^ Searle v. Galbraith, 73 111. 269. 
 
 Kinne, 9 Conn. 102; Stubbs v. Hous- * Hovey v. Hobson, 55 Maine, 256; 
 
 ton, 33 Ala. 555; Hall v. Hall, 18 Ga. Miller v. Craig, 36 111. 109; Speers v. 
 
 40 ; Gaither v. Gaither, 20 Ga. 709. Sewell, 4 Bush, 239 ; Hovey v. Chase, 
 
 2 1 Bishop Crim. Law, § 396. 52 Maine, 304 ; Dennett v. Dennett, 44 
 8 Look ». Dean, 108 Mass. 116. N. H. 531; Odell v. Buck, 21 Wend. 
 
 * Bishop Mar. & Div. as above. 142; Osterhout v. Shoemaker, 3 Hill, 
 ' Lewis V. Baird, 3 McLean, 56 ; N. Y. 513 ; Hippy v. Gant, 4 Ire. Eq. 
 
 Beokwith v. Butler, 1 Wash. Va. 224 ; 443 ; Samuel v. Marshall, 3 Leigh, 567 ; 
 
 Jenners v. Howard, 6 Blackf. 240. Smith v. Elliott, 1 Pat. & H. 307 ; Far- 
 
 * Lozear v. Shields, 8 C. E. Green, nam v. Brooks, 9 Pick. 212; Somes v. 
 509; 1 Chit. Con. Uth Am. ed. 185; Skinner, 16 Mass. 348, 358 ; Siemon !■. 
 Bond V. Bond, 7 Allen, 1,8; Brown v. Wilson, 3 Edw. Ch. 36 ; Smith v. Beatty, 
 Brown, 108 Mass. 386; Henderson v. Sire. Eq. 456. 
 
 McGregor, 30 Wis. 78 ; Musselman i° Burgess v. Pollock, 53 Iowa, 273 ; 
 
 V. Cravens, 47 Ind. 1 ; Blakeley v. Blake- Boyce v. . Smith, 9 Grat. 704 ; West v. 
 
 ley, 6 Stew. Ch. 502 ; Edwards ». Dav- Russell, 48 Mich. 74. 
 
 enport, 20 Fed. Rep. 756, 758, 759, 4 Mc- " Lawrence v. Willis, 75 N. C. 471. 
 
 Crarv, 34 ; Hill v. Day, 7 Stew. Ch. 150. " West v. Russell, supra. 
 
 380 
 
CHAP. XXXV.] INSANE PERSONS. § 964 
 
 or, a fortiori, simply deaf and dumb,^ — may still have the 
 power of making a particular agreement; and, on the other 
 hand, one of general capacity will be held incapable if he 
 labored under a delusion, as to the individual matter, in- 
 thralling his judgment and will.^ Hence, — 
 
 § 96-4. The Insanity prompting, or not. — Laying aside the 
 theories of medical experts, practical observation, which is 
 the guide in the law, discloses that there are persons neither 
 completely insane nor completely sane. Many or most of 
 their acts appear to be both rational in themselves and to 
 proceed from the normal faculties, while, in others, the mind 
 is more or less clouded. Where the mental disorder is not 
 far advanced or of a positive character, the law, in determin- 
 ing whether or not to give effect to a particular act of con- 
 tracting, looks into the nature of the agreement, and into 
 the influences leading thereto. Is it fair and just ? Was the 
 consideration adequate ? Did the other party know of the 
 mental derangement ? Did he seek an advantage in con- 
 sequence of such knowledge? Was undue influence used — 
 is there any taint of fraud ? Did the supposed insane per- 
 son have any friendly advice, and what was its nature, and 
 from whom ? Enlightened by the answers to questions like 
 these, as well as those which bear more directly on the men- 
 tal condition, the court or jury are to declare whether the 
 contract was the offspring of insanity, or of the competent, 
 normal mind. If the former, it is ill; if the latter, it is 
 good.^ 
 
 1 Barnett v. Barnett, 1 Jones, Eq. son, 1 Tread. 448, 3 Brer. 389 ; Hinch- 
 221; Brown v. Brown, 3 Conn. 299; man v. Emans, Saxton, 100; Neely v. 
 Brewer v. Fisher, 4 Johns. Ch. 441 ; Anderson, 2 Strob. Eq. 262 ; Conant 
 Christmas v. Mitchell, 5 Ire. Eq. 535. ». Jackson, 16 Vt. 335 ; Keeble v. Cura- 
 
 2 Biggs u. American Tract Soc. 95 mins, 5 Hayw. 43; Parris v. Cobb, 5 
 N. Y. 503. Rich. Eq, 450 ; McEaddin v. Vincent, 21 
 
 8 See and compare ante, § 656-658, Texas, 47 ; Hale v. Brown, 11 Ala. 87 ; 
 
 719, 731-744; Wray v. Wray, 32 James v. Langdon, 7 B. Monr. 193; 
 
 Ind. 126; Jeneson v. Jeneson, 66 111. Wilson v. Oldham, 12 B. Monr. 55; 
 
 259 ; Behrens v. McKenzie, 23 Iowa, Johnson v. Johnson, 10 Ind. 387 ; Niell 
 
 333 ; Waters v. Barral, 2 Bush, 598 ; v. Morley, 9 Ves. 478 ; Evans v. Blood, 
 
 Owings's Case, 1 Bland, 370 ; Jones v. 3 Bro. P. C. 632 ; Sergeson v. Sealy, 2 
 
 Perkins, 5 B. Monr. 222; Holland v. Atk. 412; 8. c. nom. Sergison u. Sealey, 
 
 Miller, 12 La. An. 624; Dodds v. Wil- 9 Mod. 370; Clerk v. Clerk, 2 Vern. 
 
 381 
 
§ 968 PARTIES AND OTHER PARTAKERS. [bOOK II, 
 
 § 965. Effect. — There are some differences of judicial 
 opinion, and in the circumstances of the particular case there 
 may be room for doubt, as to the precise effect of insanity 
 admitted or proved. In a general way, the propositions may 
 be stated as follows. 
 
 § 966. Executory. — It is believed that, at least by the bet- 
 ter doctrine, while still there may be doubts on some of the 
 authorities, no mere executory undertaking which proceeded 
 from an insane mind, not including herein the creations of 
 the law, is binding on the insane person .^ The qualifications 
 of this doctrine, if such there are, will appear as we proceed. 
 As to the contracts which are — 
 
 § 967. Created by Law. — We have seen that insanity is no 
 impediment to the law in creating a contract.^ Hence — 
 
 § 968. Necessaries — Preservation of Estate. — An insane 
 person is liable for necessaries, like an infant, or a husband 
 in respect of his wife, yet under limitations not quite the 
 same as in those cases.^ And, whatever be the rule as to 
 infants,* this liability extends to what is needful for the pres- 
 ervation of his estate.* It extends also to necessaries fur- 
 nished the lunatic's wife.^ But if, in fact, the credit was 
 
 412, 414 J Stockley v. Stockley, 1 Ves. necessaries knew of the lunacy, " a very 
 
 & B. 23 ; Osmond v. Fitzroy, S P. Wms. difficult point of law," to copy the 
 
 129 ; Curtis v. Brownell, 42 Mich. 165; words of Brett, L. J. "which I do not 
 
 Graham v. Castor, 55 Ind. 559 ; Stone think has ever been settled by authority." 
 
 V. Wilbern, 8.3 111. 105. In re Weaver, 21 Ch. D. 615, 620, It 
 
 1 1 Chit. Con. 1 1th Am. ed. 191; seems extraordinary that any legal per- 
 Musselman v. Cravens, 47 Ind. 1 ; Rice son should hesitate on this question. If 
 V. Peet, 15 Johns. 503; Fitzgerald v. I see a man starving, and craving food 
 Eeed, 9 Sra. & M. 94 ; Growther v. Row- of me, am I to supply him should I 
 landson, 27 Cal. 376 ; Maddox v. Sim- believe him to be sane, yet stand by and 
 mons, 31 Ga. 512; Burke v. Allen, 9 see him die of hunger when I know that 
 Fost. N. H. 106 ; McClain v. Davis, 77 God has deprived him of reason? One 
 Ind. 419. See Shoulters v. Allen, 51 could not easily state a case more com- 
 Mich. 529. pletely than this supposed one within 
 
 2 Ante, § 956. the principle on which the law creates a 
 ' Ante, § 232-235 ; Darby v. Cab- contract. 
 
 anne, 1 Misso. Ap. 126; Stedman v. * Ante, § 911. 
 
 Hart, I Kay, 607, 18 Jur. 744; Baxter ' Williams v. Wcntworth, 5 Beav. 
 
 V. Portsmouth, 5 B. & C. 170, 2 Car. & 325. See Surles v. Pipkin, 69 N. C. 513. 
 
 P. 178. Still, as Inte as 1882, the Eng- « Read v. Legard, 6 Exch. 636, 15 
 
 lish court treated this question as being, Jur. 494 ; Davidson v. Wood, 1 De G., 
 
 in a case where the party supplying the J. & S. 465, 9 Jur. u. s. 589. 
 
 382 
 
CHAP. XXXV,] INSANE PERSONS. § 970 
 
 given to a third person, and not to the lunatic, the law cre- 
 ates no promise from the latter, and he is not responsible.^ 
 Beyond this, — 
 
 § 969. other Benefits conferred. — (Executed.) — Within lim- 
 its a little uncertain, if, where a contract has been executed, 
 it has resulted in a benefit to the insane person, the law will 
 create a promise from him to pay what the benefit is reason- 
 ably worth, — a rule not extending to like cases without 
 benefit.^ At all events, this doctrine is reasonably clear as 
 applied to cases where the party thus conferring the benefit 
 was — 
 
 § 970. Ignorant of the Insanity. — The authorities On this 
 question are in a degree conflicting or indistinct; but, by 
 most and probably all opinions, it is sometimes a material 
 circumstance that the sane person did not know of the oth- 
 er's insanity.^ In England, the doctrine seems to be general, 
 that, whenever the party contracting with the insane person 
 proceeded honestly and fairly, and without either actual 
 knowledge of his insanity or anything to excite suspicion of 
 it, and the contract is equitable and just, and is on one or 
 both sides executed, it will be binding on the insane person 
 unless the parties, on its rescission, can be placed in statu 
 quo.* And nearly or exactly the same thing is held in a part 
 of our States.^ For example, the lunatic has been compelled 
 
 1 Massachusetts Gen. Hosp. v. Fair- v. McDonnell, supra, and 10 Exch. 184; 
 banks, 129 Mass. 78, 81, 132 Mass. 414. Dane v. Kirkwall, 8 Car. & P. 679; 
 
 2 Ante, §233; Lincoln v. Buck- Campbell w. Hooper, 3 Smale & G. 153, 
 master, 32 Vt. 652; Carr v. Holliday, 5 1 Jur. N. 8. 670; Moss v. Tribe, 3 Fost. 
 Ire. Eq. 167; Kendall v. May, 10 Allen, & F. 297. See also Drew v. Nunn, 4 
 59; Searlew. Galbraith, 73 III. 269. Q. B. D. 661. In the equity case of 
 
 8 Behrensu. McKenzie,23lowa, 333; Elliot v. Ince, 7 De G. M. & G. 475, 
 
 Succession of Smith, 12 La. An. 24; 3 Jur. N. s. 597, 600, "the result of the 
 
 Carr v. Holliday, 1 Dev. & Bat. Eq. 344 ; authorities " was deemed to be " that 
 
 Molton V. Camroux, 2 Exch. 487, 4 dealings of sale and purchase by a per- 
 
 Exch. 17; Beavan v. McDonnell, 9 son apparently sane, though subsequently 
 
 Exch. 309 ; Baxter v. Portsmouth, 5 B. found to be insane, will not be set aside 
 
 & C. 170; Fay v. Burditt, 81 Ind. 433 ; against those who have dealt with him 
 
 Crawford v. Scovell, 13 Norris, Pa. 48; on the faith of his being a person of 
 
 Moore v. Hershey, 9 Norris, Pa. 196; competent understanding." 
 
 Shoulters v. Allen, 51 Mich. 529; Fecel « Wilder v. Weakley, 34 Ind. 181 ; 
 
 V. Gninault, 32 La. An. 91. Northwestern Mut. Fire Ins. Co. v. 
 
 * Molton v. Camroux, supra ; Beavan Blankenship, 94 Ind. 535, 544; Riggan 
 
 383 
 
§ 971 PARTIES AND OTHEE PARTAKERS. [BOOK 11. 
 
 to repay money lent under these circumstances.^ Especially 
 in equity has this doctrine been enforced ; resting, it is said, 
 on the maxim that he who seeks equity must do equity.^ 
 Consequently the equity tribunal will not set aside, on the 
 ground of insanity, a conveyance of lands made for value to 
 a purchaser in good faith, who was ignorant of the grantor's 
 mental condition.^ On the other hand, it is by many of our 
 courts held, at least at law, that, since insanity incapacitates 
 one to make a contract, the mere fact of the other party's 
 not knowing it does not render good what he was legally 
 incompetent to do.* It is difiicult to resist the force of this 
 proposition, especially as it harmonizes with what is held in 
 respect of the contracts of infants. And under the title 
 Infancy, the reader will see how the doctrine ought to be 
 carried out. At the same time, and as a qualification of what 
 would thus appear to be the better rule, it may well be held, 
 in accordance with what has already been laid down,® that 
 where, in these circumstances, the parties cannot on rescis- 
 sion be placed in statu quo, the law creates a promise from 
 the insane person to remunerate the other for whatever ben- 
 efit was actually conferred and enjoyed. Practically, in the 
 larger number of cases, the following of this better doctrine 
 amounts simply to the adoption of a better form of reason- 
 ing ; for, with exceptions believed not to 'be numerous, the 
 end reached by the two methods will be the same. 
 
 § 971. Allege own Insanity — Rescission. — Contrary to what 
 was formerly held by the courts, the modern law permits a 
 party to set up his own insanity in avoidance of his contract.^ 
 
 V. Green, 80 N. C. 236; Crawford v, Hovey v. Hobson, 53 Maine, 451, 453; 
 
 Scovell, 13 Norris, Pa. 48 ; Copenrath Rogers v. Blackwell, 49 Mich. 192 ; Ed- 
 
 V. Kienby, 83 Ind. 18, 24 ; Wirebach v. wards v. Davenport, 20 Fed. Rep. 756, 
 
 Easton Bank, 1 Out. Pa. 543. 4 McCrary, 34. Compare with Shoul- 
 
 ' Mutual Life Ins. Co. t>. Hunt, 79 ters v. Allen, supra. 
 N. Y. 541. 5 Ante, § 233, 969. 
 
 2 Mutual Life Ins. Co. v. Hunt, su- » Seaver v. Phelps, 11 Pick. 304; 
 
 pra, at p. 546. Rice v. Peet, 15 Johns. 503; Ballew v. 
 
 8 Ashcraft v. De Armond, 44 Iowa, Clark, 2 Ire. 23 ; Bensell v. Chancellor, 
 
 229 ; Riggan v. Green, supra ; Niell v. 5 Whart. 371 ; Morris v. Clay, 8 Jones, 
 
 Morley, 9 Ves. 478. See Bevin v. Pow- N. C. 216 ; Mitchell v. Kingman, 5 
 
 ell, 1 1 Misso. Ap. 2 1 6. Pick. 431 ; Webster v. Woodford, 3 Day, 
 
 * Seaver v. Phelps, 11 Pick. 304; 90; Grant ». Thompson, 4 Conn. 203; 
 
 384 
 
CHAP. XXXV.] INSANE PERSONS. § 975 
 
 Nor, in avoiding it, need he always, even where it is executed, 
 return the consideration.^ 
 
 § 972. Voidable or Void. — The doctrine of some of the 
 cases appears to be, that contracts impeachable for insanity 
 are absolutely void. And there may be those in which it 
 should be so held.^ Yet, as in infancy,' there can be but 
 little just ground for the void. Thus, — 
 
 § 973. Sane Party. — Plainly, in justice, the sane party 
 ought ordinarily to be holden, whether he knew of the in- 
 sanity or not, if the other or his representative so elects. 
 The authorities on this point may be conflicting, but such is 
 believed to be the better doctrine.* This alone would make 
 the contract voidable, whatever the courts should hold its 
 other consequences to be.^ Again, — 
 
 § 974. Ratification or Disaffirmance. — In general, this con- 
 tract, like an infant's,® may be ratified or disaffirmed by the 
 insane party's guardian ^ or committee,^ or by himself during 
 a lucid interval, or on becoming sane ; ^ or, after his death, 
 by his proper legal representative.'" This alone, also, would 
 place it among the voidable, even though in other respects it 
 should be treated as void.^^ Hence, — 
 
 § 975. Voidable — (Transmits Ownership — Seisin). — In 
 most cases, the contract is held to be merely voidable by the 
 insane person or his legal representatives ; and, while not so 
 avoided, binding on the other party. Admitting of ratifica- 
 
 Lang V. Whidden, 2 N. H. 435; Thorn- ^ Ante, § 611, 617, 618. 
 
 ton V. Appleton, 29 Maine, 298 ; Tol- « Ante, § 936-944. 
 
 son V. Gamer, 15 Misso. 494 ; Turner "^ McClain v. Davis, 77 Ind. 419 ; 
 
 V. Busk, 53 Md. 65. Halley v. Troester, 72 Misso. 73. 
 
 * Gibson v. Soper, 6 Gray, 279 ; Foss « Moore v. Hershey, 9 Norris, Pa. 
 ». Hildreth, 10 Allen, 76, 80; Halley v. 196. 
 
 Troester, 72 Misso. 73. ' Arnold v. Richmond Iron Works, 
 '^ Van Deusen v. Sweet, 51 N. Y. 1 Gray, 434 ; AUis v. Billings, 6 Met. 
 378; Marvin v. Levns, 61 Barb. 49; 415; Gibson v. Soper, 6 Gray, 279; 
 Allen V. Allen, 9 Fost. N. H. 106 ; Ed- Elston v. Jasper, 45 Texas, 409 ; North- 
 wards V. Davenport, 20 Fed. Eep. 756, western Mut. Fire Ins. Co. v. Blanken- 
 4 McCrary, 34. And see Evans v. Ho- ship, 94 Ind. 535 ; Turner v. Rusk, 53 
 ran, 52 Md. 602 ; Rogers v. Blackwell, Md. 65. 
 
 49 Mich. 192; Niell v. Morley, 9 Ves. i" SehufE v. Ransom, 79 Ind. 458; 
 
 478. Campbell v. Kuhn, 45 Mich. 513. 
 
 8 Ante, § 929. " Ante, § 620. 
 
 * Allen V. Berrvhill, 27 Iowa, 534. 
 
 25 385 
 
§ 977 PARTIES AND OTHER PARTAKERS. [BOOK II, 
 
 tion, if, for example, it is a deed of lands or conveyance of 
 personalty in the executed form,^ it will, without such affirm- 
 ance, transmit, the seisin or ownership to the other party .^ 
 Still, — 
 
 § 976. Innocent Third Person. — We have seen ^ that, where 
 a contract, voidable for fraud in the inducement to it, is exe- 
 cuted by a conveyance to the defrauding party, if this party 
 for a consideration adequate and valuable conveys the thing 
 to a third person ignorant of the fraud, the title is thereby 
 perfected in the latter, and he cannot be divested of it. 
 Which result is a deduction from the equitable rule, that he 
 who suffers his own weakness to be imposed upon, and is 
 consequently in a measure to blame, must bear a loss rather 
 than the meritorious third person who is free of fault.* In a 
 case of insanity, the considerations are reversed. To the 
 insane, not even carelessness can be attributed. And the 
 third person was in a degree careless ; because, insanity being 
 usually a permanent condition, he could ascertain it by in- 
 quiry, as a third person could not a fraud. Therefore the 
 consequence ought to be, that, if real estate, for example, has 
 by the deed of an insane man passed to one who has conveyed 
 it to a third person, though for its full value, and without 
 notice, this third person has a mere defeasible seisin, like his 
 grantor. And so, in such few cases as we have to the point, 
 it is held.^ 
 
 § 977. Commission of Lunacy — Guardianship. — In Eng- 
 
 1 Ante, § 942. Blakeley v. Blakeley, 6 Stew. Ch. 502; 
 
 2 Matthews v. Baxter, Law Eep. 8 Gibson v. Soper, 6 Gray, 279; Wait v. 
 Ex. 132 ; AUis v. Billings, 6 Met. 415 ; Maxwell, 5 Pick. 217. 
 
 Merritt v. Gumaer, 2 Cow. 552 ; Crouse ' Ante, § 673, 674. 
 
 V. Holman, 1 9 Ind. 30 ; Breckenridge v. * See Bawls v. Deshler, 4 Abb. Ap. 
 
 Ormsby, 1 J. J. Mar. 236; Somers v. Dec. 12. 
 
 Pumphrey, 24 Ind. 231 ; Gates v. Wood- ' Hovey v. Hobson, 53 Maine, 451 ; 
 
 son, 2 Dana, 452 ; Hovey v. Hobson, 53 Somers v. Pumphrey, 24 Ind. 231, 238 ; 
 
 Maine, 451 ; Arnold v. Richmond Iron Long v. Fox, 100 111. 43 ; Rogers ». 
 
 Works, I Gray, 434 ; Ingraham v. Bald- Blackwell, 49 Mich. 192, 194. See Gates 
 
 win, 5 Selden, 45 ; Fay v. Barditt, 81 v. Woodson, 2 Dana, 452 ; Fuentes v. 
 
 Ind. 433 ; Freed v. Brown, 55 Ind. 310 ; Montis, Law Rep. 3 C. P. 268, 276, 277 ; 
 
 Elston V. Jasper, 45 Texas, 409 ; Nichol Cole v. Northwestern Bank, Law Kep. 
 
 V. Thomas, 53 Ind. 42 ; Mohr v. Tulip, 10 G. P. 354, 362, 363 ; Alcock v. Al- 
 
 40 Wis. 66 ; Evans v. Horan, 52 Md. cock, 8 Man. & G. 268. 
 602; Gopenrath v. Kienby, 83 Ind. 18; 
 
 386 
 
CHAP. XXXV.] INSANE PERSONS. § 978 
 
 land and in our States, there are statutes by which the insane 
 person may be put under the care of a commission of lunacy, 
 or of a committee, or guardian. Generally, with us, it is a 
 guardian. The provisions differ so much that it would be 
 unwise to set them out, with their expositions, in this chap- 
 ter. The practitioner's reliance will be chiefly on the statutes 
 and decisions of his own State. There are a few questions 
 in a measure common to England and most of our States, 
 depending on a mingling of statutory provisions and common- 
 law interpretations, on not all of which are the adjudications 
 absolutely harmonious. According to these, largely the 
 contract of an insane person under guardianship is void, not 
 voidable ; ^ by some, the guardianship precludes the power of 
 contract ; ^ by the greater number, it is believed, the power 
 of contract remains, yet the guardianship creates a strong 
 prima facie presumption of incapacity, not conclusive;^ and, 
 on general principles, with little room for doubt, it operates 
 so far retrospectively that it is admissible also as an inconclu- 
 sive presumption of insanity at a previous date, * — not, how- 
 ever, varying the legal effect of the prior act of contracting.^ 
 
 § 978. The Doctrine of this Chapter restated. 
 
 An insane person, like an infant, is incapable of binding 
 himself by a contract ; though, where necessity requires, the 
 law will bind him. But there is commonly no just ground 
 for exempting a sane person, who enters into a bargain with 
 him, from its obligations. Therefore the insane party ought 
 to have the benefit of it, should it be advantageous to him. 
 
 ' Elston V. Jasper, 45 Texas, 409 ; Hopson v. Boyd, 6 B. Monr. 296 ; Snook 
 
 Nichol W.Thomas, 53 Ind. 42; Mohr v. v. Watts, 11 Beav. 105, 12 Jur. 444; 
 
 Tulip, 40 Wis. 66; Freed r. Brown, 55 Jacobs ». Richards, 18 Beav. 300, 18 
 
 Ind. 310 ; Griswold v. Butler, 3 Conn. Jur. 527 ; Little v. Little, 13 Gray, 264 ; 
 
 227; Wait v. Maxwell, 5 Pick. 217; Tauger u. Skinner, 1 McCart. 389 ; Hunt 
 
 Fitzhugh V. Wilcox, 12 Barb. 235; w. Hunt, 2 Beasley, 161 ; Parker u. Da- 
 
 Wadsworth v. Sherman, 14 Barb. 169. vis, 8 Jones, N. C. 460. 
 
 * Wadsworth v. Sharpsteen, 4 Sel- * 2 Bishop Mar. & Div. § 566, 567 ; 
 
 den, 388 ; ImhoflF v. Witmer, 7 Casey, Faiilder v. Silk, 3 Camp. 126. 
 Pa. 243. * Niell v. Morley, 9 Ves. 478. 
 
 « Hart V. Deamer, 6 Wend. 497 ; 
 
 387 
 
§ 978 PARTIES AND OTHER PARTAKERS. [BOOK II. 
 
 So the law adjudges. Consequently it terms the contract in 
 such circumstances voidable, — the insane may avoid it ; but, 
 if he does not, it binds the sane. Yet, when it is avoided, 
 the avoidance, like an infant's of his contract,^ works more 
 strongly against an innocent third person than does the 
 avoidance of a fraudulent contract by the party defrauded. 
 The nature and degree of the insanity are material simply to 
 the extent that, to invalidate the contract, they must so far 
 impair the understanding or wUl as to preclude the free and 
 intelligent consent to the thing in terms agreed. 
 
 1 Ante, § 928. 
 388 
 
CHAP. XXXVI.] DRUNKEN PERSONS. § 981 
 
 CHAPTER XXXVI. 
 
 DEUNKEN PBKSONS. 
 
 § 979. Branch of Insanity. — The incapacity which comes 
 from being drunk is, in civil jurisprudence, identical in prin- 
 ciple with that of temporary insanity. Consequently the 
 doctrines of the last chapter should, to the extent applicable, 
 be regarded by the reader as incorporated into this. 
 
 § 980. Incapacity of Contract. — By the modern law, con- 
 trary to what was held in former times, intoxication, so deep 
 as to take away the agreeing mind, — in other words, to dis- 
 qualify the mind to comprehend the subject of the contract 
 and its nature and probable consequences,-' — impairs such con- 
 tract if made while it lasts, the same as insanity.^ But, — 
 
 § 981. Degree. — Mere drunkenness, or being a drunkard, 
 or simply being drunk at the time, where the intoxication 
 does not extend to the degree thus stated, will not impair 
 the contract.^ To have this effect, it must render the party 
 non compos mentis for the occasion.* 
 
 1 Ante, § 962. Woods v. Pindall, Wright, Ohio, 507 ; 
 
 2 1 Bishop Mar. &Div. § 131 ; 2 Kent Belcher v. Belcher, 10 Yerg. 121 ; Mor- 
 Com. 451, 452; Pitt v. Smith, 3 Camp, ris v. Nixon, 7 Humph. 579 ; Lightfoot 
 33 ; Fenton v. Holloway, 1 Stark. 126 ; v. Heron, 3 Y. & Col. Ex. 586 ; Hutch- 
 Dnlany v. Green, 4 Harring. Del. 285 ; inson v. Brown, Clarke, N. Y. 408 ; 
 Drummond v. Hopper, 4 Harring. Del. Henry v. Ritenour, 31 Ind. 136 ; Rei- 
 327; Cummings w. Henry, 10 Ind. 109; nicker v. Smith, 2 Har. & J. 421; 
 Berkley D. Cannon, 4 Rich. 136; Johns Caulkins v. Fry, 35 Conn. 170, 172; 
 V. Fritchey, 39 Md. 258 ; Williams v. Cavender v. Waddingham, 5 Misso. Ap. 
 Inabnet, 1 Bailey, 343; Wilson v. Bigger, 457 ; Reynolds v. Dechaums, 24 Texas, 
 7 Watts & S. HI ; Gore v. Gibson, 13 174. 
 
 M. & W. 623, 9 Jur. 140 ; Hawkins v. " Bates v. Ball, 72 HI. 108; Van 
 
 Bone, 4 Fost. & F. 311; Shaw v. Wyck w. Brasher, 81 N. Y. 260 ; Cooke 
 
 Thackray, 1 Smale & G. 537, 17 Jur. v. Clayworth, 18 Ves. 12 ; Schramm v. 
 
 1045. O'Connor, 98 111. 539. 
 
 « Pickett V. Sutter, 5 Cal. . 412 ; 
 
 389 
 
§ 987 PARTIES AND OTHEB PARTAKERS. [BOOK II. 
 
 § 982. Habitual. — The contract of an habitual drunkard is 
 good if made in a sober interval.^ 
 
 § 983. Making Drunk. — Drunkenness, thus to disqualify, 
 need not have been brought about by the artifice of the other 
 party .2 But, where it is, less will suffice ; for then fraud 
 mingles with it.^ So — 
 
 § 984. Undue Advantage — taken of a drunken man may 
 impair a contract which, if he were sober, would be good.* 
 
 § 985. Voidable — Ratify. — The contract is not void, but 
 voidable, and it may be ratified by the party when sober.^ 
 
 § 986. How ratify. — One method of ratification is to keep 
 the consideration received.® 
 
 § 987. The Doctrine of this Chapter restated. 
 
 Drunkenness, carried to a sufficient degree, operates in civil 
 jurisprudence as a sort of insanity. In the criminal law, it is 
 regarded in the nature of a crime ; so that, if a man wilfully 
 makes himself drunk, then commits a wrongful act of the 
 class which is indictable when done from general malevo- 
 lence, not requiring a specific criminal intent, he is punish- 
 able the same as though he were sober.'' But this doctrine 
 has no application in the law of contracts. Or, exactly, a 
 contract requires a specific intent, — a mental determination 
 to enter into the particular agreement which its words ex- 
 press. Consequently the intoxicated party would not be 
 bound even under the rules of the criminal law.® 
 
 1 Ritter's Appeal, 9 Smith, Pa. 9. Birdsong, 2 Head, 289 ; Mansfield v. 
 
 2 Donelson v. Posey, 13 Ala. 752 ; Watson, 2 Iowa, 111 ; White v. Cox, 3 
 Freeman v. Staats, 4 Halst. Ch. 814; Hayw. 79 ; Cooke w. Clay worth, 18 Ves. 
 French, v. French, 8 Ohio. 214; Wig- 12; Murray v. Carlin, 67 111. 286; But- 
 glesworth v. Steers, 1 Hen. & M. 70. ler v. Mulvihill, 1 Bligh, 137. 
 
 Nor need it have been known by him. ^ Matthews v. Baxter, Law Rep. 8 
 
 Hawkins w. Bone, 4 Fost. &F. 311. Ex.132. See Caulkins «. Fry, 35 Conn. 
 
 3 Ante, § 656, 734; Say v. Barwick, 170; ante, § 972-976. 
 
 1 Ves. & B. 195 ; Willcox v. Jackson, 51 « Williams v. Inabnet, 1 Bailey, 343 ; 
 
 Iowa, 208. Joest v. Williams, 42 Ind. 565. But see 
 
 * Ante, § 656, 734 ; Henry v. Rite- Reinskopf v. Rogge, 37 Ind. 207. 
 nour, 31 Ind. 136 ; Burroughs v. Rich- ' I Bishop Crim. Law, § 397-416. 
 
 man, 1 Green, N. J. 233; Birdsong v. s jb. § 408-415. 
 
 390 
 
CHAP. XXXVII.] GOVERNMENT AND ITS OPPICEBS. § 989 
 
 CHAPTER XXXVII. 
 
 THE GOVERNMENT AND ITS OFPICEBS. 
 
 § 988. Sovereign's Power of Contract. — Sovereignty, in 
 every government, including the governments of the United 
 States and of the several States within their respective juris- 
 dictions, carries with it the power of contract. In constitu- 
 tional governments, therefore especially in ours, it can be 
 exercised only within the limits and in the methods defined 
 by the constitution and laws.^ For example, the government 
 of the United States can, through its proper officers, enter 
 into a contract with an individual to put in execution what 
 the law empowers it to do, without an expressly authorizing 
 statute, as " an incident to the general right of sovereignty." 2 
 And its capacity of contract is coextensive with its func- 
 tions.^ But an act of contracting by an officer or in a manner 
 not legally authorized,* or, a fortiori, one not within the 
 sphere of the government, is ineffectual. These government 
 contracts have some peculiarities ; such as, — 
 
 § 989. Suit on the Contract. — From the earliest* times to 
 the present in England, the common law has forbidden the 
 subject to sue the sovereign in a judicial tribunal, it being 
 deemed an affront to the royal dignity;^ he might simply 
 
 1 Ante, § 555 ; 1 Bl. Com. 234, 243, * The Floyd Acceptances, 7 Wal. 
 257, 336; 2 lb. 346, 347; Danolds ». 666; Peirce w." United States, 1 Ct. of CI. 
 The State, 89 N. Y. 36, 44 ; United 270 ; Martin v. United States, 4 T. B. 
 States V. Tingey, 5 Pet. 114, 128 ; Canal Monr. 487 ; In re Right of Employees, 
 V. Railroad, 4 Gill & J. 1. 2 Lawrence Compt. Dec. 501, 507, 509; 
 
 2 United States v. Tingey, supra. In re Authority to make Contract, 3 
 ' United States v. Maurice, 2 Brock. Lawrence Compt. Dec. 92. 
 
 96 ; United States v. Lane, 3 McLean, ' Willion v. Berkley, 1 Plow. 223, 
 365. 241. 
 
 391 
 
§ 9'90 PARTIES AND OTHER PARTAKERS. [BOOK II. 
 
 seek redress, in the sovereign's court, by what is termed a 
 petition of right.^ Where the crown was plaintiff, the defend- 
 ing subject was permitted, after judgment rendered against 
 him, to have his writ of error, — a question upon which there 
 ■were early doubts.^ This doctrine has become common law 
 with us ; to the extent that, in the absence of permission, no 
 action will lie against either the United States ^ or one of our 
 States.* Still either may consent to be sued,^ and so may a 
 foreign government.^ Besides the waiver of the objection in 
 the particular case, the consent may be given by a general 
 statutory or constitutional provision ; and the United States 
 has given it in part by establishing the Court of Claims, and 
 some of the States have yielded it more fully. '^ On the other 
 hand, the government has the same power of bringing and 
 maintaining suits as an individual.* So likewise, while it is 
 protected from being sued, the law holds its contracts obliga- 
 tory upon it in every respect, the same as those of individuals 
 are upon Ihem.^ 
 
 § 990. Interpretation. — In general, government contracts 
 are interpreted by the same rules as those of individuals. 
 But in early times there were a few differences, not all of 
 which have become obliterated. As already seen, a differ- 
 ence which remains is, that the government contract is con- 
 strued more strongly against the private party ; ^^ the rule of 
 the old law being, that, " if the right lie equal between the 
 
 1 Walsingham's Case, 2 Plow. 547, and Greenfield Eailroad v. Conimon- 
 5,53; Thomas v. Reg. Law Kep. 10 wealth, 1 27 Mass. 43. 
 
 Q. B. 31. ' Cohens u. Virginia, 6 Wheat. 264; 
 
 2 Hurlston's Case, 2 Leon. 194 ; Sinking Fund Commissioners v. North- 
 Anonymous, Holt, 272, 1 Salk. 264 ; 1 em Bank, 1 Met. Ky. 174 ; Garr v. 
 Bishop Grim. Law, § 1024. Bright, 1 Barb. Ch. 157. 
 
 8 United States v. Clarke, 8 Pet. 436, ^ Manning v. Nicaragua, 14 How. 
 
 444. Pr. 517. 
 
 4 Ex parte Madrazzo, 7 Pot. 627 ; ' The State v. Curran, 7 Eng. 321 ; 
 
 Michigan State Bank v. Hastings, 1 Bishop 'Written Laws, § 103, 178 a. 
 
 Doug. Mich. 22.5, Walk. Mich. 9; 8 The State u. Grant, 10 Minn. 39; 
 
 Michigan State Bank v. Hammond, 1 Spencer v. Brockway, 1 Ohio, 259; 
 
 Doug. Mich. 527 ; People v. Talmage, United States v. Barker, 1 Paine, 156. 
 
 6 Cal. 256 ; Treasurers v. Cleary, 3 » Ante, § 563 ; Danolds v. The State, 
 
 Rich. 372 ; Pattison v. Shaw, 6 Ind. 89 N. Y. 36. And see the reasoning in 
 
 377 ; Williamsport, &c. Railroad v. Metz v. Soule, 40 Iowa, 236. 
 
 Commonwealth, 9 Casey, Pa. 283 ; Troy W Ante, § 415. 
 
 392 
 
CHAP. XXXTII.] GOVERNMENT AND ITS OFFICERS. § 992 
 
 king and subject, the king's title hath the preference." i So 
 likewise " the king may grant a chose in action, but another 
 cannot ; " ^ out of which distinction, the question has arisen 
 whether or not, at the common law, the government's assign- 
 ment of its contract with an individual carries to the assignee 
 the right to sue thereon at law in his own name.^ However 
 this may be, — 
 
 § 991. Government preferred. — The common law prefers 
 the king to a private creditor in respect of debts due to both ; 
 so that, if the debtor cannot pay all, the crown has the first 
 claim upon his property.* This principle has been adopted 
 by Congress in its legislation, and it is constantly acted upon 
 by the courts of the United States.® In probably most of our 
 States, it is accepted as a part of their unwritten law ;® it is 
 rejected in New Jersey.'^ 
 
 § 992. Form of Contracting. — The government can contract 
 only through its ofiicers and other agents, duly authorized, 
 and proceeding in the form prescribed by law.^ If, for ex- 
 ample, a statute requires the particular sort of agreement to 
 be in writing, an oral one will be without effect while unexe- 
 cuted, though there may be rights growing out of its execu- 
 tion.9 Where, as in the ordinary case, the agent or officer 
 derives his authority from the law,^" and so it is conclusively 
 
 1 Woodward v. Fox, 2 Vent. 267, 2965,297 a; BraSsey !;. Dawson, 2 Stra. 
 268. "In the common law, the grant 978,981. 
 
 of every common person is taken most ^ United States v. State Bank, 6 Pet. 
 
 strongly against himself and most favor- 29, 34 ; United States v. Hack, 8 Pet. 
 
 ahly towards the grantee ; but the king's 271 ; Thelusson v. Smith, 2 Wheat. 396 ; 
 
 grant is taken most strongly against the Harrison v. Sterry, 5 Cranch, 289 ; 
 
 grantee and most favorably for the king, United States v. King, Wal. C. C. 13. 
 although the thing which he grants came ^ The State v. Baltimore, 10 Md. 
 
 to the king by purchase or descent." 504 ; Green's Estate, 4 Md. Ch. 349. 
 Willion V. Berkley, 1 Plow. 223, 243. ' Middlesex Freeholders v. New 
 
 2 Willion U.Berkley, as above. One Brunswick State Bank, 3 Stew. Ch. 311. 
 by reading on, at this place, will find 8 Ante, § 988 ; Baltimore v. Rey- 
 many other distinctions; some of which, nolds, 20 Md. 1 ; People v. Talmage, 6 
 at least, are special to the old law. And Cal. 2.56 ; Delafield w. Illinois, 2 Hill, 
 see, in this connection, Rex v. Hare, 1 N. T. 159; The State «. Little Rock, &c. 
 Stra. 266 ; Anonymous, 2 Salk. 603. Railway, 31 Ark. 701 ; Osborne v. Tu- 
 
 ' Post, § 1183. nis, 1 Dutcher, 633. 
 
 * Harbert's Case, 3 Co. 11 h, 12; Rex ' Clark v. United States, 95 U. S. 
 V. Wells, 16 East, 278, 281 ; Stevenson's 539. 
 Case, Cro. Car. 389 ; Anonymous, 3 Dy. i« Ante, § 462. 
 
 393 
 
§ 994 PARTIES AND OTHER PARTAKERS. [BOOK II. 
 
 presumed to be known to the private person contracting with 
 him,^ and the latter is cognizant of the fact^ that the former 
 is making the contract for the public and not for himself,^ 
 some consequences follow distinguishing it from a mere indi- 
 vidual bargaining.* Thus, — 
 
 § 993. Estoppel of Government. — The government is never 
 estopped, as an individual or private corporation may be,^ on 
 the ground that the agent is acting under an apparent author- 
 ity which is not real ; the conclusive presumption that his 
 powers are known ^ rendering such a consequence impossible. 
 So that the government is bound only when there is an 
 actual authorization.'' And this principle may extend to the 
 agent of a municipal corporation and his contract,^ but it does 
 not necessarily ; ^ as to which, the distinctions in the differing 
 cases will be obvious. Again, — 
 
 § 994. Binding Government or Agent — (Municipal Corpora- 
 tion). — Though the agent's powers are known, it is possible 
 for him to employ a form of words and of contracting which 
 will bind him, and not the government his principal, as the 
 party .^o For example, if, in localities where a sealed instru- 
 ment is construed as limiting the parties to those who are 
 named as such therein,^^ the agent, whether his principal is 
 the government or a municipal corporation, in terms, by a 
 writing under seal, himself covenants, instead of expressing 
 that his principal does, he, and not the other, will be holden.^^ 
 Yet, even as to this, we have intimations that a contract by 
 covenant, ostensibly and really on behalf of the government, is 
 
 1 The State v. Hastings, 10 Wis. 518. Baltimore v. Eeynolds, 20 Md. I. And 
 
 2 Ante, § 463-465. see ante, § 268 310. 
 
 8 Swift V. Hopkins, 13 Johns. 313. 8 pjne v. Hnber Manuf. Co. 83 Ind. 
 
 * Compare with ante, § 293, 294. 121. 
 
 6 Sheldon Hat Bloclting Co. v. Eicke- ' Cook v. Harms, 108 111. 151. 
 
 meyer Hat, &c. Co. 90 N. Y. 607, 64 i» McClenticks v. Bryant, 1 Misso. 
 
 How. Pr. 467 ; McNeilly v. Continental, 598 ; Sheffield v. Watson, 3 Caines, 69 ; 
 
 &c. Ins. Co. 66 N. Y. 23 ; Claflin v. Lapsley v. McKinstry, 38 Misso. 245 ; 
 
 Lenheim, 66 N. Y. 301. Brown v. Rundlett, 15 N. H. 360. 
 
 6 And see ante, § 293. " Ante, § 426, 885. 
 
 ' The State v. Severs, 86 N. C. 588; 12 Appleton v. Binks, 5 East, 148; 
 
 The State v. Hastings, 10 Wis. 518; FuUara w. West Brookfield, 9 Allen, 1 ; 
 
 Baltimore v. Eschbach, 18 Md. 276 ; Cunningham v. Collier, 4 Doug. 233. 
 Woodward v. Campbell, 39 Ark. 580; 
 394 
 
CHAP. XXXVII.] GOVERNMENT AND ITS OFFICERS. 
 
 §994 
 
 excepted from the general rule ; and it, and not the agent, is 
 in law the contracting party.^ And, in other circumstances, 
 including all bargainings by parol, whether written or oral, a 
 contract made for the government, by its officer or other agent, 
 though in his own name, binds his principal, but not himself 
 personally .2 This doctrine extends as well to a contract with 
 a municipal corporation as to one with a State or the United 
 States. It has been expressed by a learned judge to be, that 
 " an agent, contracting on behalf of the public, is not per- 
 sonally bound by such contract, even though he would be by 
 the terms of the contract if it were an agency of a private 
 nature. It is not to be presumed, in such a case, that the 
 party, dealing with such public officer, means to rely upon 
 his individual responsibility." ^ 
 
 1 Unwin v. Wolseley, 1 T. R. 674, 
 678 ; Allen v. Waldegrave, 8 Taunt. 
 566 ; Stinchfield v. Little, 1 Greenl. 231, 
 234 ; Hodgson v. Dexter, 1 Cranch, 345. 
 Story lays down this doctrine without 
 qualification ; namely, that the " prin- 
 ciple" which makes the contract the 
 government's, " not only applies to sim- 
 ple contracts, both parol and written, 
 bat also to instruments under seal, which 
 are executed by agents of the govern- 
 ment in their own names, and purport- 
 ing to be made by them on behalf of the 
 government ; for the like pi-esumption 
 prevails in such cases, that the parties 
 contract, not personally, but merely offi- 
 cially, within the sphere of their appro- 
 priate duties." Story Agency, § 303. 
 He refers for this to some text-books, to 
 some of the cases which I have referred 
 to in this note, and to Macbeath v. Hal- 
 dimand, infra ; Osborne v. Kerr, 12 
 Wend. 179; Walker v. Swartwout, 12 
 Johns. 444; and Boweu v. Morris, 2 
 Taunt. 374. Principles Conflicting. 
 — The question under consideration is 
 one of the common sort, where two legal 
 principles come into conflict with each 
 other, and the one or the other must of 
 necessity give way. The one principle 
 
 here is, that the agent's contract in his 
 own name for the government shall be 
 taken as the government's ; the other, 
 that only those named as parties in 
 specialties are such. Now, in the pres- 
 ent conflict, which of these two prin- 
 ciples ought to stand while the other is 
 made to yield ? Were the question new, 
 its decision on neither side would spe- 
 cially shock the legal conscience. But 
 if I were to decide it, I should give the 
 preference to Story's view. And the 
 reason is, that the doctrine regarding 
 specialties is merely technical, with no 
 foundation in anything except former ad- 
 judications ; moreover, in modern times, 
 the courts lean toward reducing them to 
 the same rules which govern simple con- 
 tracts in writing. On the other hand, 
 there are solid sense and substantial jus- 
 tice in the rule which makes the agent's 
 contract for the government the govern- 
 ment's. Beyond this, if the reader will 
 compai-e Story's opinion with that of 
 Metcalf, J. in Fullam v. West Brook- 
 field, supra, he will see that, on other 
 grounds, this doctrine necessarily pre- 
 vails in a part of our States. 
 
 2 Macbeath v. Haldimand, I T. R. 
 172 ; Hodgson v. Dexter, 1 Cranch, 345 ; 
 
 8 Bicknell, C. C, in Pine v. Huber Manuf. Co. 83 Ind. 121. 
 
 395 
 
§ 996 PARTIES AND OTHER PARTAKERS. [BOOK 11. 
 
 § 995. Ratification. — The government or municipal corpo- 
 ration, like a private principal, may ratify its agent's unau- 
 thorized act of contracting, thus rendering it good. It must 
 be done by the proper power, with the formalities required 
 by the particular case, — matters needing no special ex- 
 planation.i 
 
 § 996. The Doctrine of this Chapter restated. 
 
 The government, whether of the United States or of a State, 
 has within its sphere the same power of contract as an indi- 
 vidual within his sphere. And, like an individual, it can 
 enforce the contract in its courts. It is bound the same on 
 its part, and the presumption is the same that it will per- 
 form ; but, except with its consent, it cannot be sued. Since 
 it can act only through its officers and other agents, its con- 
 tracts must be ostensibly made by them. For which and 
 other reasons, the presumption is always strong that it, and 
 not the agent, is the party to a bargain in its interest.' In 
 the main, a government contract is interpreted by the same 
 rules as a private one ; but there are minor differences, 
 already sufficiently explained. 
 
 Olney v. Wickes, 18 Johns. 122; Hull i Nashville ». Hagan, 9 Baxter, 495; 
 
 V. Marshall, 12 Iowa, 142; Cutler v. People v. Brooks, 16 Cal. 11; The 
 
 Ashland, 121 Mass. 588; Comer v. State «. Buttles, 3 Ohio State, 309; 
 
 Bankhead, 70 Ala. 493; Allen v. Wal- Delafield v. Illinois, 26 Wend. 192, 2 
 
 degrave, 8 Taunt. .566, 574 ; Fox v. Hill, N. Y. 159. 
 Drake, 8 Cow. 191. 
 
 396 
 
CHAP. XXXTIII.] FOREIGN GOVERNMENTS AND ALIENS. § 998 
 
 CHAPTER XXXVIII. 
 
 FOREIGN 60VEENMENTS AND ALIENS. 
 
 § 997. In General. — Our State and National governments, 
 and all others dwelling under the law of nations, permit, as 
 of comity, foreign sovereigns with whom they are at peace, 
 and the subjects of such sovereigns, to make contracts within 
 their territorial jurisdiction, and enforce both them and those 
 entered into elsewhere in their tribunals. War intercepts 
 these privileges for the time. We are now to consider them 
 more minutely. 
 
 § 998. Sovereign. — A foreign sovereign or State may, in 
 his or its political capacity, sue in our courts ; and, with his 
 or its consent, but not otherwise, may be sued therein ; the 
 same rules being thus made applicable to the foreign govern- 
 ment which, we saw in the last chapter, are applied to our 
 own. The suit, with the exception of the foreign govern- 
 ment's right to decline submitting itself to the jurisdiction 
 when sued, is conducted by the same rules as are like suits, 
 in the same court, between individuals.^ The property of 
 the foreign sovereign, though within our jurisdiction, cannot 
 be attached or otherwise dealt with for the enforcement of 
 the contract.^ Our tribunals, in determining who is a foreign 
 sovereign entitled to rights or immunities within these rules, 
 follow the lead of the political department of the government ; 
 
 1 United States u. Wagner, Law Rep. 94; Munden v. Brunswick, 10 Q. B. 
 
 2 Ch. Ap. 582 ; Prioleau v. United 656. 
 
 States, Law Rep. 2 Eq. 659 ; Peru ^ Twycross v. Dreyfus, 5 Ch. D. 605 ; 
 
 V. Weguelin, Law Rep. 20 Eq. 140 ; Wadsworth v. Spain, 17 Q. B. 171 ; De 
 
 Brunswick v. Hanover, 2 H. L. Cas. Haber «. Portugal, 17 Q.B. 204; Smith 
 
 I ; Spain v. HuUet, 1 CI. & E. 333 ; v. Weguelin, Law Rep. 8 Eq 198. See 
 
 8. c. nom. Hnllet v. Spain, 1 Dow & C. also In re The Charkieh, Law Rep. 8 
 
 169; .Columbia v. Rothschild, 1 Sim. Q. B. 197; 1 Bishop Crim. Law, § 125. 
 
 397 
 
§ 1000 PARTIES AND OTHEH PARTAKERS. [BOOK II, 
 
 as, for example, if a colony rebels and sets up a government 
 of its own, they do not acknowledge it until either the mother 
 country or ours, in its political capacity, has done so.^ 
 
 § 999. Alien Subjects — of governments with which we are 
 at peace can ordinarily enter into contracts, with one another 
 and with our own citizens, the same as if they were the sub- 
 jects of our government. And they have the same protec- 
 tion and are under the same liabilities in our courts.^ They 
 may own personal property.^ At common law, they can take 
 real estate by purchase or devise, not by descent, — in other 
 words, by act of a party conveying or devising it, yet not by 
 operation of law, — but cannot hold it against the sovereign 
 or State.* Therefore, so long as the State does not interfere, 
 they can sue for the recovery of their realty.^ The disa- 
 bility has largely, with us, been removed by treaties and by 
 statutes, — a matter into which it is not proposed here to 
 enter. 
 
 § 1000. Alien Enemies. — War changes this. It makes the 
 subjects of the contending sovereigns in point of law ene- 
 mies ; ® so that all trading intercourse, and all contracts 
 between them, except under express or implied ^ license, are 
 
 1 Kose V. Himely, 4 Cranch, 241 ; Smith v. Adams, 7 Wend. 367 ; Munro 
 Gelston v. Hoyt, 3 Wheat. 246 ; United v. Merchant, 28 N. Y. 1 ; Stevenson w. 
 States V. Hatchings, 2 Wheeler Crim. DunlE^p, 7 T. B. Monr. 134 ; Gansevoort 
 Cas. 543. And see Spain v. The Con- v. Lunn, 3 Johns. Cas. 109, 120, 121; 
 ception, 2 Wheeler Crim. Cas. 597 ; Wadsworth v. Wadsworth, 2 Kernan, 
 United States v. Skinner, 2 Wheeler 376 ; Haleyburton v. Kershaw, 3 Des. 
 Crim. Cas. 232,234; United States v. 105; Orr v. Hodgson, 4 Wheat. 453; 
 Ortega, 4 Wash. C. C. 531; United Govemenr u. Robertson, 1 1 Wheat. 332 ; 
 States V. Benner, Bald. 234 ; United Taylor v. Beuham, 5 How. U. S. 233. 
 States V. Wagner, Law Bep. 2 Ch. Ap. * Bradstreet v. Oneida, 13 Wend. 
 582, 591, 593. 546; Ronche v. Williamson, 3 Ire. 141. 
 
 2 Taylor v. Carpenter, 3 Story, 458 ; And see Hepburn v. Dunlop, 1 Wheat. 
 Openheimer v. Levy, 2 Stra. 1082 ; Rob- 179. 
 
 erts V. Knights, 7 Allen, 449 ; Barrell v. ^ 1 Kent Com. 55. 
 
 Benjamin, 15 Mass. 354. ' As, for example, by openly residing 
 
 * Beck V. McGillis, 9 Barb. 35 ; in the country under public permission. 
 
 Greenia v. Greenia, 14 Misso. 526. Boulton «. Dobree, 2 Camp. 163 ; Alciator 
 
 ^ 1 Bl. Com. 372 ; Fairfax v. Hunter, v. Smith, 3 Camp. 245 ; Wells v. Wil- 
 
 7 Cranch, 603 ; Culverhouse v. Beach, Haras, 1 Salk. 46, 1 Ld. Raym. 282 ; 
 
 1 Johns. Cas. 399 ; Levy v. McCartee, 6 Otteridge v. Thompson, 2 Cranch C. C. 
 
 Pet. 102; Fox v. Southack, 12 Mass. 108; Parkinson w. Wentworth, 1 1 Mass. 
 
 143; Cross v. De Valle, 1 Clif. 282; 26; Bradwell v. Weeks, 13 Johns. 1; 
 
 Craig V. Leslie, 3 Wheat 563, 589; Clarke v. Morey, 10 Johns. 69. The 
 
 398 
 
CHAP. XX2TIII.] FOREIGN GOVERNMENTS AND ALIENS. § 1002 
 
 unlawful and void.^ Not even will a contract wrongfully 
 made during war be enforced on the return of peace.^ From 
 the necessities of the case, a prisoner of war may bind him- 
 self by his contract for subsistence ; ^ and there are various 
 other distinctions, — on a subject seldom arising. As to the 
 further questions, therefore, the reader is referred to the 
 digests ; except as to, — 
 
 §1001. Suits during "War — Peace. — No suit on a con- 
 tract, however validly made before the war began, can be 
 carried on in the courts while it continues.* But, on the 
 return of peace, all rights revive as before the war.^ 
 
 § 1002. The Doctrine of this Chapter restated. 
 
 The doctrine of this chapter is an illustration of the broader 
 one, that the civilized nations constitute one family, governed 
 by a uniform law, termed international. When one sovereign 
 or his subject is upon the hearthstone of another, the rights 
 and amenities are equal between them, and the guest is denied 
 nothing which the entertainer possesses. If a quarrel springs 
 up, it pertains equally to sovereign and subject, and ameni- 
 ties are suspended. They return with peace, and things are 
 restored to their former conditions. 
 
 differing cases within this principle are ' Crawford v. The William Penn, 
 
 numerous. TJsparicha v. Noble, 13 supra. 
 
 * Mumford v. Mumford, 1 Gallis. 
 366 ; Wilcox v. Henry, 1 Dall. 69 ; Bell 
 u. Chapman, 10 Johns. 183; Johnston 
 V. Decker, 11 Johns. 418; Raymond v. 
 Camden, 22 W. Va. 180; Sturm v. 
 Fleming, 22 W. Va. 404 ; Casseres v. 
 Bell, 8 T. R. 166; Alcinous v. Nigreu, 
 
 East, 332 ; Zacharie v. Godfrey, 50 111, 
 186 
 
 1 1 Kent Com. 66, 67; Barrick v. 
 Buba, 2 C. B. N. 8. 563 ; The Kapid, 1 
 Gallis. 295 ; The Eliza, 2 Gallis. 4 
 Marchand v. Coyle, 18 La. An. 632 
 Crawford v. The William Penn, 3 Wash, 
 C. C. 484 ; Esposito v. Bowden, 7 Ellis 4 Ellis & B. 217 ; Le Bret v. Papillon, 4 
 
 & B. 763, 769 ; Potts v. Bell, 8 T. R 
 548 ; Shotwell v. Ellis, 42 Missis. 439. 
 
 2 Hart V. United States, 15 Ct. of CI, 
 414 ; Willison v. Fatteson, 7 Taunt. 
 439. Ball, 2 Cranch, 180. 
 
 399 
 
 East, 502. 
 
 ^ Flindt V. Waters, 15 East, 260, 265 ; 
 Harman v. Kingston, 3 Camp. 150, 153 ; 
 Ware v. Hylton, 3 Dall. 199; Dunlop v. 
 
§ 1006 PARTIES AND OTHER PARTAKERS. [BOOK II. 
 
 CHAPTER XXXIX. 
 
 COEPOKATIONS. 
 
 § 1003, 1004. Introduction. 
 
 1005-1013. Power of Contract. 
 
 1014-1023. By what Methods. 
 
 1024. Doctrine of Chapter restated. 
 
 § 1003. What a Corporation. — We have already seen that 
 " a corporation is an artificial creation of the law,^ embodying 
 a part of the legal capabilities and responsibilities of an unin- 
 corporate man." ^ Hence, — 
 
 § 1004. How Chapter divided. — We have here two ques- 
 tions, which we shall consider in their order, I. The Corpo- 
 ration's Power of Contract ; II. By what Methods exercised. 
 
 I. The Corporation's Power of Contract. 
 
 § 1005. Determined by Charter. — The authority of a cor- 
 poration to enter into contracts comes solely from its charter, 
 or incorporating act ; being either expressed therein, or im- 
 plied. It has none beyond.^ And as individuals cannot 
 exist without continually making contracts, so cannot a cor- 
 poration. Therefore, — 
 
 1 It would be equally accurate to say, er, 4 Pet. 152 ; Straus v. Eagle Ins. Co. 
 that a corporation is an artificial " per- 5 Ohio State, 59 ; White's Bank v. To- 
 sou," &c. Royal Mail Steam Packet ledo, &c. Ins. Co. 12 Ohio State, 601 ; Mc- 
 Co. V. Braham, 2 Ap. Cas. 381, 386 ; Masters v. Reed, 1 Grant, Pa. 36 ; Burr 
 Louisville, &c. Railroad v. Letson, 2 w. McDonald, 3 Grat. 215; Madison, &c. 
 How. V. S. 497. Some of the defini- Plank Road v. Watertown, &c. Plank 
 tions are so. Road, 5 Wis. 173 ; Weckler v. First 
 
 2 Ante, § 559. National Bank, 42 Md. 581 ; Matthews 
 ' Ewing V. Toledo Sav. Bank, 43 w. Skinker, 62 Misso. 329 ; Bank of Au- 
 
 Ohio State, 31, 37; Head v. Providence gusta v. Earle, 13 Pet. 519, 587; Mur- 
 Ins. Co. 2 Cranch, 127 ; Beaty v. Knowl- phy v. Jacksonville, 18 Fla. 318. 
 
 400 
 
CHAP, XXXIX.] CORPORATIONS. § 1009 
 
 § 1006. impUed. — Where the power of contract is not in 
 terms given to a corporation, it is always, to some extent, 
 implied ; and, if so given, but not in adequate measure, the 
 deficiency may be made up from implication.^ To be more 
 specific, — 
 
 § 1007. Limit of Implication, — A corporation, being an 
 artificial " person," yet with capabilities less extensive than a 
 natural one,^ has, within its sphere, and in the absence of 
 anything in the act of incorporation restraining, the same 
 power as a natural person of making contracts.^ The books 
 give some intimations that, to justify a contract through a 
 power implied, it must be necessary to the carrying out of 
 express powers ; but, though such a statement of the doctrine 
 is not practically very misleading,* it is not strictly accurate.^ 
 The better form is to say that, if the subject of the contract 
 is within the corporate sphere, and the contract itself is such 
 as an individual might make, it will be good. Thus, — 
 
 § 1008. Take and convey. — A corporation may, within 
 its sphere, take and convey real estate and other prop- 
 erty ; " but not outside of its general power and purposes,^ 
 So — 
 
 § 1009. Negotiable Paper. — Corporations, acting within 
 
 1 People V. Mauran, 5 Denio, 389; 264; Richmond, &c. Railroad v. Rich- 
 
 Blanchard's Gun-stock Turning Factory mond, 26 Grat. 83 ; and cases in the last 
 
 V. Warner, 1 Blatch. 258 ; Bennington note. 
 Iron Co. V. Rutherford, 3 Harrison, 467 ; * Post, § 1013. 
 
 Moss V. Averell, 6 Selden,449; Cincin- ^ Met. Con. 158. 
 nati, &c. Railroad ». Clarkson, 7 Ind. 6 Sutton's Hospital, 10 Co. 23 o, 30 6; 
 
 59.") ; Abbott v. Baltimore, &c. Steam Blanchard's Gnn-stock Turning Fao- 
 
 Packet, 1 Md. Ch. 542 ; Reynolds v. tory v. Warner, 1 Blatch. 258 ; Bariy 
 
 Stark, 5 Ohio, 204 ; Barry v. Merchants v. Merchants Exchange, 1 Sandf. Ch. 
 
 Exchange, 1 Sandf. Ch. 280 ; Shrews- 280 ; Phillips Academy v. King, 12 
 
 bury V. Birmingham Railway, 6 H. L. Mass. 546 ; Rehoboth v. Rehoboth, 23 
 
 Cas. 113; Talladega Ins. Co. w. Landers, Pick. 139; Bennington Iron Co. v. 
 
 43 Ala. 115. Whether or not the cases Rutherford, 3 Harrison, 467 ; Leazure v. 
 
 cited come fully up to the latter clause Hillegas, 7 S. & R. 313, 320; Buell v. 
 
 of the text, it is plainly correct in prin- Buckingham, 16 Iowa, 284 ; Indiana v. 
 
 ciple ; for, otherwise, a part of the act of Woram, 6 Hill, N. Y. 33. 
 incorporation would be rendered practi- ' Lynch v. Hartwell, 8 Johns. 422 ; 
 
 cally null. Occum Co. v. Spragne Mannf. Co. 34 
 
 * Ante, § 1003 and note. Conn. 529 ; First Parish in Sutton v. 
 
 8 Riche V. Ashbury Railway Car- Cole, 3 Pick. 232. 
 riage, &c. Co. Law Rtp. 9 Ex. 224, 
 
 26 401 
 
§1013 
 
 PARTIES AND OTHER PARTAKERS. 
 
 [book II. 
 
 their sphel'e, not otherwise, may issue and receive negotiable 
 paper.i Also — 
 
 § 1010. Appoint Agent. — They may appoint an agent and 
 provide for his compensation.^ Also — 
 
 § 1011. Borrow — Mortgage. — They may borrow money ^ 
 and mortgage their property to secure their debts.* Partly 
 to repeat, — 
 
 § 1012. "Within Sphere — (Ultra Vires). — A contract not 
 within the sphere of a corporation, as defined by its charter, 
 is termed ultra vires,^ and sometimes extra vires with its cor- 
 relate intra vires.^ Subject to some nice qualifications into 
 which it is not necessary to enter here,^ the ultra vires contract 
 is void.* Now, — 
 
 § 1013. other Expression of Implied. — Leaving out of view 
 what comes from the corporation's being deemed an artificial 
 "^ersow," we may reason as follows. The act of incorporation, 
 like every other statute, will be so interpreted as to be made 
 effectual for its purpose.^ And, in the absence of terms di- 
 rectly or impliedly forbidding,^" it will be held to invest the 
 
 1 Met. Con. 158 ; Attorney-General 
 V. Life and Fire Ins. Co. 9 Paige, 470 ; 
 Moss V. Averell, 6 Selden, 449 ; Ketch- 
 nm V. Buifalo, 4 Kernan, 356 ; Goodrich 
 V. Reynolds, 31 111. 490; Hardy v. Mer- 
 riweather, 14 Ind. 203; Came v. Brig- 
 ham, 39 Maine, 35 ; Bacon v. Mississippi 
 Ins. Co. 31 Missis. 116; Moss v. Oakley, 
 2 Hill, N. Y. 265 ; McCuUongh v. Moss, 
 5 Denio, 567 ; In re Great Western Tel- 
 egraph, 5 Bis. 363. 
 
 2 Cincinnati, &c. Railroad v. Clark- 
 son, 7 Ind. 595 ; Berks and Dauphin 
 Turnpike Road v. Myers, 6 S. & R., 12, 
 16. 
 
 * Union Gold Mining Co. v. Rocky 
 Mt. Nat. Bank, 2 Colo. 248. 
 
 1 Gordon v. Preston, 1 Watts, 385 ; 
 People V. Brown, 5 Wend. 590 ; Thomp- 
 son V. Lambert, 44 Iowa, 239. 
 
 * Webster v. Buffalo Ins. Co. 2 Mc- 
 Crary, 348 ; Watuppa Reservoir v. Mac- 
 kenzie, 132 Mass. 71,74; New Haven, 
 &c. Co. V. Hayden, 107 Mass. 525, 530; 
 Attorney-General v. Jamaica Pond Aque- 
 duct, 133 Mass. 361, 362. 
 
 402 
 
 ^ Ashbury Railway, &c. Co. v. Riche, 
 Law Rep. 7 H. L. 653, 668, 672. 
 
 ' For example. Farmers, &c. Bank 
 V. Detroit, &c. Railroad, 17 Wis. 372; 
 Railroad v. EUerman, 105 U. S. 166, 
 173 ; Auerbach v. Le Sueur Mill Co. 28 
 Minn. 291, 296 (compared wiih Scovill 
 V. Thayer, 105 U. S. 143) ; Whitney 
 Arms Co. v. Barlow, 63 N. Y. 62 ; In- 
 diana V. Woram, 6 Hill, N. Y. 33, 37. 
 
 8 Dana v, Bank of St. Paul, 4 Minn. 
 385 ; Middlesex Railroad v. Boston, &c. 
 Railroad, 115 Mass. 347 ; White's Bank 
 V. Toledo, &c. Ins. Co. 12 Ohio State, 
 601 ; Susquehanna Canal v. Bonham, 
 9 Watts & S. 27 ; Davis v. Old Colony 
 Railroad, 131 Mass. 258; Clinch D.Fi- 
 nancial Corporation, Law Rep. 4 Oh. 
 Ap. 117. 
 
 8 Bishop Written Laws, § 82, 137. 
 1" Erie's Appeal, 10 Norris, Pa. 398 ; 
 Bateman w. Ashton-under-Lyne, 3 H. & 
 N. 323 ; Stephenson v. Short, 92 N. Y. 
 433 ; Chambers v. Falkner, 65 Ala. 
 448. 
 
CHAP. XXXIX.] 
 
 CORPOEATIONS. 
 
 §1014 
 
 corporation with simply and only the powers of contract 
 required for the carrying out of its particular functions, with- 
 in the sphere which the incorporating act has defined.^ For 
 the reasons already stated,^ should this form of the argument 
 be found to restrict the power of contract more than the 
 other, it should give way to the other. It better accords 
 with a part of the cases, yet probably not with the majority.^ 
 
 II. By what Methods exercised. 
 
 § 1014. Prescribed by Charter. — When the charter of a 
 corporation defines its "mode of contracting," it "must," 
 said Marshall, C. J., " observe that mode, or the instrument 
 no more creates a contract than if the body had never been 
 
 1 Eastern Union Railway v. Hart, 8 
 Exch. 116; Pacific Railroad v. Seely, 
 
 45 Misso. 212 ; Miners Ditch Co. v. 
 Zellerbach, 37 Cal. 543 ; Toledo, &c. 
 Railroad v. Rodrigues, 47 111. 188 ; Cen- 
 tral Railroad v. Collins, 40 Ga. 582 ; 
 Brooklyn Gravel Road v. Slaughter, 33 
 Ind. 185 ; Oxford Iron Co. v. Spradley, 
 
 46 Ala. 98 ; Dupee v. Boston Water- 
 power Co. 114 Mass. 37 ; Scovill v. 
 Thayer, 105 U. S. 143, 148 ; Johnston 
 V. Louisville, 1 1 Bush, 527 ; Williams 
 V. Davidson, 43 Texas, 1 ; Morville v. 
 American Tract See. 123 Mass. 129; 
 Ottawa t'. Carey, 108 U. S. 110. 
 
 2 Ante, § 1007. 
 
 * Still, looking into the cases, and as 
 a question of mere authority, there may 
 be doubt as to which side of the scale is 
 the heavier. I quote from the 2d ed. of 
 Leake Con. 585 : " A corporation or 
 company constituted for the purpose of 
 trading has, in general, as incident to 
 such purpose, the power to draw and ac- 
 cept bills of exchange and promissory 
 notes in the ordinary form ; as the Bank 
 of England and the East India Compa- 
 ny. See Murray «. East India Co. 5 B. & 
 Aid. 204 ; per cur. in East London Water- 
 works V. Bailey, 4 Bing. 283, 288. But 
 a railway company, incorporated under 
 an ordinary railway act, has, in general, 
 
 no power to issue hills or notes, as it is 
 not a necessary incident to the under- 
 taking, to have such power. Batsman v. 
 Mid- Wales Railway, Law Rep. 1 C. P. 
 499. Nor is such a power incident to 
 the business of a waterworks company, 
 Broughton v. Manchester Waterworks, 
 3 B. & Aid. 1 ; or a cemetery company,' 
 Steele v. Harmer, 14 M. & W. 831." 
 Whether the doctrine which forbids the 
 use of commercial paper in the circum- 
 stances stated prevails or not in the 
 American courts, I do not propose to 
 inquire. But this would seem to be an 
 instance in which the conclusion differs 
 with the reasoning selected. If the for- 
 mei- of the two methods given in my text 
 is the correct one, the result arrived at 
 by the English courts in these cases is 
 incorrect. Were the decision with me, 
 I should hold it to be wrong. When 
 the artificial person called a corporation 
 is acting within its sphere, if the use of 
 commercial paper is an appropriate, 
 though not a necessary, means of exer- 
 cising its functions, I can see no just 
 ground why it may not as well employ 
 such means as a natural person proceed- 
 ing within his sphere. Indeed, it seems 
 to me that most of our courts trill so 
 hold. 
 
 403 
 
§ 1015 PARTIES AND OTHER PARTAKERS. [BOOK II. 
 
 incorporated." ^ Thus, if the charter requires the signature 
 of a particular officer to its bonds, they are invalid without 
 it.^ Such is the general doctrine ; ^ but sometimes a pro- 
 vision of this sort is construed as directory only,* and con- 
 tracts not in the prescribed mode are held to be valid.® In 
 the absence of any such special defining of the mode, — 
 
 § 1015. Common Seal — (English). — One of the ordinary 
 powers of a corporation is to have a common seal.® " For," 
 says Blackstone, " a corporation, being an invisible body, can- 
 not manifest its intention by any personal act or oral dis- 
 course : it, therefore, acts and speaks only by its common 
 seal. For, though the particular members may express their 
 private consents to any act by words or signing their names, 
 yet this does not bind the corporation^ it is the fixing of 
 the seal, and that only, which unites the several assents of 
 the individuals who compose the community, and makes one 
 joint assent of the whole." ^ This reasoning, which has been 
 many times repeated by learned judges to whom it never 
 occurred to inquire whether or not it is intrinsically effective, 
 would, if it were good, exclude the corporation from every 
 act of contracting ; unless the chartering power manufactured 
 and gave, as it never does, to the corporation its common 
 seal. Surely, if it can act only by such seal, it, while it has 
 none, cannot employ an engraver to make one. Yet this 
 doctrine of Blackstone constitutes, to the present day, the 
 ordinary common-law rule in England.** It has its exceptions. 
 The " principle " governing which, said Lord Denman, C. J., 
 " appears to be convenience, amounting almost to necessity. 
 Wherever to hold the rule applicable would occasion very 
 great inconvenience, or tend to defeat the ver}' object for 
 
 1 Head v. Providence Ins. Co. 2 of mandatory and directory in statutes, 
 Cranch, 127, 169. and the rules governing each, see Bishop 
 
 2 Bisscll V. Spring Valley, 110 TJ. S. Written Laws, § 254-256. 
 
 162. 5 Witte K.Derby Fishing Co. 2 Conn. 
 
 8 Holland v. San Francisco, 7 Cal. 260 ; Bulkley v. Derby Fishing Co. 2 
 
 361 ; Osborne i'. Tunis, 1 Dutcher, 633 ; Conn. 2.'J2. 
 
 Talmadge v. North American Coal, &c. ^ 2 Kent Com. 277. 
 
 Co. 3 Head, 337. ' 1 Bl. Com. 475. 
 
 < Southern Life Insurance, &c. Co. v. ^ Leake Con. 588. 
 
 Lanier, 5 Fla. 110. For the distinction . 
 
 404 
 
CHAP. XXXIX.] CORPORATIONS. § 1016 
 
 which the corporation was created, the exception has pre- 
 vailed : hence the retainer by parol of an inferior servant, the 
 doing of acts very frequently recurring, or too insignificant 
 to be worth the trouble of affixing the common seal, are estab- 
 lished exceptions ; on the same principle stands the power of 
 accepting bills of exchange, and issuing promissory notes, by 
 companies incorporated for the purposes of trade, with the 
 rights and liabilities consequent thereon." ^ 
 
 §1016. Continued — (American). — So miich of the fore- 
 going doctrine as authorizes the corporation to have a com- 
 mon seal prevails with us. And ordinarily, in practice, it 
 establishes such seal, and has it engraved, presenting a uni- 
 form appearance. It can be proved, in a judicial proceeding, 
 by any one acquainted with it;^ and the prima facie legal 
 inference will be, that it was placed on the instrument bj'^ 
 competent authority ; ^ so a manifest convenience results 
 therefrom. Yet, in matter of law, if the corporation has not 
 so established a common seal, any seal which it employs for 
 the occasion will suffice.* Contrarj' to the English doctrine, 
 it is the ordinary and nearly universal American, that any 
 act which an unincorporate person can perform without seal 
 is equally good without, if done by a corporation, and is 
 within its jurisdiction, unless its charter provides otherwise.* 
 
 1 Church V. Imperial Gaslight, &c. Baptist Soc. v. Clapp, 18 Barb. 35; 
 
 Co. 6 A. & E. 846, 861 ; Ludlow v. Crossman v. Hilltown, &c. Co. 3 Grant, 
 
 Charlton, 6 M. & W. 815, 822. And Pa. 225. 
 
 see Diggle v. London, &c. Railway, 5 ^ Blunt w. Walker, 11 Wis. 334 ; Bank 
 
 Exch. 442, 450. of Columbia v. Patterson, 7 Cranch, 299 ; 
 
 '^ City Coancil v. Moorbead, 2 Rich. Chesapeake and Ohio Canal v. Knapp, 9 
 
 430. Pet. 541 ; Board of Education v. Greene- 
 
 ' Indianapolis, &e. Railroad v. Mor- baum, 39 111. 609 ; Ross v. Madison, 1 
 
 ganstern, 103 111. 149 ; Evans u. Lee, 1 1 Ihd. 281 ; Merrick v. Burlington, &c. 
 
 Nev. 194; Reed u. Bradley, 17 111. 321 ; Plank Road, 11 Iowa, 74; Petrie v. 
 
 Leggett V. New Jersey Manuf. &c. Co. Wright, 6 Sm. & M. 647 ; Buckley v. 
 
 Saxton, 541 ; Lovett v. Steam Saw Briggs, 30 Misso. 452 ; Chestnut Hill 
 
 Mill Assoc. 6 Paige, 54. Turnpike v. Rutter, 4 S. & B. 6 ; Fourth 
 
 * Miller «. Superior Machine Co. 79 School District v. Wood, 13 Mass. 193, 
 
 111. 450 ; Taylor v. Heggie, 83 N. C. 199 ; Bank of United States v. Dan- 
 
 244; Porter v. Androscoggin, &c. Rail- dridge, 12 Wheat. 64 ; Mott v. Hicks, I 
 
 road, 37 Maine, 349; Stebbins u. Mer- Cow. 513 ; National Banking, &c. Co. w. 
 
 ritt, 10 Cash. 27; Milldam Foundry v. Knaup, 55 Misso. 1 .54 ; Christian Church 
 
 Hovey, 21 Pick. 417 ; Ransom v. Ston- v. Johnson, 53 Ind. 273, 275. 
 ington, &c. Bank, 2 Beasley, 212 ; South 
 
 405 
 
§ 1018 PARTIES AND OTHER PARTAKERS. [BOOK II. 
 
 So that what the laws require to be by deed must be under 
 the common seal of the corporation, either general or adopted 
 for the particular occasion, affixed by one authorized.^ But 
 where a parol contract would be valid if made by a natural 
 person, the corporation may contract by parol.^ Within this 
 principle it may, for example, without seal, bind itself in 
 writing to sell real estate.^ 
 
 § 1017. By whom. — A corporation may in the proper cir- 
 cumstances contract by resolution,* ordinarily by agent,^ or 
 always by its duly authorized officers.* The methods vary, 
 and the practitioner should look into the structure of the 
 particular corporation. 
 
 § 1018. Form of 'Written Contract. — Since it is competent 
 for the officer or agent to contract on behalf of himself in- 
 stead of the corporation, the undertaking ought to be in 
 terms the corporation's, not his own.'' For example, " We 
 promise to pay," &c., signed by several persons, with the 
 words "Trustees of the First Church," &c., added to their 
 names, was adjudged to constitute their individual note.' 
 But a bill of exchange headed " Office of the A Co." and 
 concluding " charge the same to account of A Co., X. Pres't, 
 
 1 Hatch V. Barr, 1 Ohio, 390 ; Koehler v. Baker, 4 Met. 164, 176 ; Essex Tum- 
 V. Black River Falls Iron Co. 2 Black, pike v. Collins, 8 Mass. 292, 298. 
 
 715; Osbomo w. Tunis, 1 Dutcher, 633 ; * New Athens v. Thomas, 82 111. 
 Eagle Woolen Mills v. Monteith, 2 Ore- 259 ; McCuUongh v. Talladega Ins. Co. 
 gon, 277. See Union Bank v. Call, 5 46 Ala. 376 ; Cincinnati, &c. Eailroad v. 
 Fla. 409 ; Johnston v. Crawley, 25 Ga. Clarkson, 7 Ind. 595 ; Berks and Dau- 
 316; Phillips v. Cofiee, 17 111. 154; phin Turnpike Road v. Myers, 6 S. & 
 Tenney v. East Warren, &c. Co. 43 N. H. R. 12 ; Andover, &c. Turnpike v. Hay, 
 343 ; Josey i). Wilmington, &c. Railroad, 7 Mass. 102, 107. 
 12 Rich. 134 ; University of Michigan v. ' Renter v. Electric Telegraph, 6 El- 
 Detroit, &c. Sec. 12 Mich. 138 ; Kinzie v. lis & B. 341 ; Walker v. Detroit Transit 
 Chicago, 2 Scam. 187. Railway, 47 Mich. 338; Dubuque, &c. 
 
 2 Selma v. Mullen, 46 Ala. 411; College i». Dubuque, 13 Iowa, 555. 
 Bank of Columbia v. Patterson, supra ; ' Willson v. Nicholson, 61 Ind. 241 ; 
 Chesapeake and Ohio Canal v. Knapp, Baldwin v. Canfield, 26 Minn. 43; Fur- 
 supra, nivall V. Coombes, 6 Scott, N. R. 522, 7 
 
 8 The Banks v. Poitiaux, 3 Rand. Jur. 399 ; Buffalo Catholic Inst. v. Bit. 
 
 136; Legrand !). Sidney College, 5 Munf. ter, 87 N. Y. 250; Parr v. Greenbush, 
 
 324. 72 N. Y. 463. 
 
 * Soldiers Orphans Home v. Shaffer, ' Hayes v. Brnbaker, 65 Ind. 27. To 
 
 63 m. 243 ; St. Louis Bank v. Grand the like efiect, McClellan v. Robe, 93 
 
 Lodge, 98 U. S. 123 ; American Bank Ind. 298. 
 406 
 
CHAP. XXXIX.] COEPOBATIONS. § 1020 
 
 Y. Sec'y>" was deemed the company's.^ And the like con- 
 struction was put upon " I promise, &c., for the Providence 
 Hab Manufacturing Company," signed simply " Frink Rob- 
 erts ; " it was held to be the company's note.^ Assuming a 
 deed to be on its face the corporation's, " the technical mode 
 of executing" it, said a learned judge, "is to conclude the 
 instrument, which should be signed by some officer or agent 
 in the name of the corporation, with : ' In testimony whereof 
 the common seal of said corporation is hereunto affixed,' and 
 then to affix the seal." * Yet formal departures, where the 
 substance is preserved, will be disregarded.* Where the deed 
 is of a sort requiring an acknowledgment, and the statutes 
 are silent as to a corporation, it should proceed from the 
 officer attaching the seal.^ 
 
 § 1019. Under Seal — Parol Written — Oral. — There are 
 distinctions, with differences of judicial opinion, between 
 cases where the contract is a specialty, and where it is a 
 writing without seal, or is oral. But there is nothing in 
 these distinctions peculiar to the law of corporations, and 
 they are sufficiently explained in other connections.® 
 
 § 1020. Created and Implied. — The law can and does create 
 and imply contracts against corporations, the same as against 
 individuals.'^ 
 
 1 Hitchcock V. Buchanan, 105 U. S. was adjudged adequate to say, "In wit- 
 416. ness whereof the said G company have 
 
 2 Emerson v. Providence Hat Manuf. caused this indenture to be signed by 
 Co. 12 Mass. 237. And see Aimen v. their president, and attested by their sec- 
 Hardin, 60 Ind. 119. retary, and their common seal to be af- 
 
 * Bason v. King's Mountain Mining fixed hereto. G. 0. Walker, President. 
 Co. 90 N. C. 417, 421, by Smith, C. J. Attest : George Bull, Secretary." In Ha- 
 
 * Moore v. Willamette Transp., &c. ven v. Adams, 4 Allen, 80, the following 
 Co. 7 Oregon, 359 ; Kansas v. Hannibal, was sustained : " In testimony whereof, 
 &c. Railroad, 77 Misso. 180 ; Whitford said party of the first part have caused 
 V. Laidler, 94 N. Y. 145 ; Indianapolis, these presents to be signed by their pres- 
 &c. Bailroad v. Morganstem, 103 111. ident, and their common seal to be here- 
 149 ; Eeed v. Home Sav. Bank, 127 to affixed, and said parties of the second 
 Mass. 295 ; Miners Ditch Co. v. Zeller- part have hereto set their hands and 
 bach, 37 Cal. 543 ; Savannah, &c. Rail- seals, the day and year first above writ- 
 road V. Lancaster, 62 Ala. 555 ; Chicago, ten. Sam'I S. LewiS, President (seal), 
 &c. Railroad v. Lewis, 53 Iowa, 101 ; Robert G. Shaw (seal)," &c. 
 Scanlan v. Keith, 102 111. 634 ; Murphy « Kelly v. Calhoun, 95 U. S. 710. 
 
 «. Welch, 128 Mass. 489, 491. In Bason « Ante, § 426, 994. 
 
 V. King's Mountain Mining Co. supra, it ' Dunn v. St. Andrews Church, 14 
 
 407 
 
§ 1023 PARTIES AND OTHER PARTAKERS. [bOOK II. 
 
 § 1021. Fraud. — A corporation, like an individual, may 
 be guilty of fraud in its contract, and with the same con- 
 sequences.^ 
 
 § 1022. Contracting with Self. — The rule that one cannot 
 contract with himself^ doubtless applies to a corporation. 
 But this artificial person exists distinct and apart from the 
 natural persons who are its members, stockholders, and offi- 
 cers ; therefore there is ordinarily no impediment to a con- 
 tract between it and one of them.^ Even two corporations 
 may bargain together, at least in special circumstances, 
 where some of the participants are officers of both.* Still 
 there are qualifications of this doctrine, proceeding from 
 statutes, from the common-law rule that a person in one 
 capacity cannot enter into a contract with himself in an- 
 other capacity,^ from the fiduciary relation of the individ- 
 ual to the corporation,^ and the like, either rendering the 
 attempted contract a nullity, or qualifying its effect, — cases 
 not all of which are governed specially by the law of cor- 
 porations.^ 
 
 § 1023. Estoppel. — Something of the application of the 
 law of estoppel to corporations has already been considered.' 
 The general doctrine, that a corporation may be estopped the 
 same as an individual,® is subject to the general modification 
 
 Johns. 118; Danforth v. Schoharie, &c. 2 Ante, § 29, 880. 
 
 Turnpike, 12 Johns. 227 ; Board of Ed- ^ Revere v. Boston Copper Co. 15 
 
 ucation v. Greenebanm, 39 111. 609; Pick. 351, 363; Merrick v. Peru Coal 
 
 Ross ». Madison, 1 Ind. 281 ; Merrick Co. 61 111. 472 ; Tell City Furniture Co. 
 
 V. Burlington, &e. Plank Road, 11 Iowa, v. Nees, 63 Ind. 245. 
 74 ; Petrie v. Wrifrht, 6 Sm. & M. 647 ; * Griffin v. Inman, 57 Ga. 370. 
 
 Buckley v. Briggs, 30 Misso. 452 ; Canal ' Ante, § 881. 
 
 Bridge i>. Gordon, 1 Pick. 297 ; Mc- ^ Ante, § 740. 
 
 Masters v. Reed, 1 Grant, Pa. 36 ; Smith ' Foster v. Oxford, &c. Railway, 13 
 
 V. First Cong. Meetinghouse, 8 Pick. C. B. 200, 17 Jur. 167; Aberdeen Rail- 
 
 178; New Athens v. Thomas, 82 111. way v. Blakie, 1 Macq. Ap. Cas. 461; 
 
 259 ; Goodwin v. Union Screw Co. 34 ShefiSeld, &c. Railway v. Woodcock, 7 
 
 N. H. 378 ; Sheldon v. Fairfax, 21 Vt. M. & W. 574 ; Port v. Russell, 36 Ind. 
 
 102. 60 ; Macon v. Huff, 60 Ga. 221 ; Read 
 
 1 Cragie v. Hadley, 99 N. Y. 131; v. Smith, 60 Texas, 379; Hedges v. 
 
 Union Pacific Railroad v. Credit Mo- Paquett, 3 Oregon, 77 ; Pennsylvania 
 
 bilier, 135 Mass. 367 ; Hedges v. Paquett, Railroad's Appeal, 30 Smith, Pa. 265. 
 3 Oregon, 77 ; White Mountains Rail- 8 Ante, § 286, 304, 310. 
 
 road V. White Mountains (N. H.) Rail- ' Ante, § 310; Stratton v. Lyons, 53 
 
 road, 50 N. H. 50. Vt. 130. 
 
 408 
 
CHAP. XXXIX.] C0EP0RATI0N8. § 1024 
 
 that a contract ultra vires ^ cannot be imposed upon it in this 
 way .2 Yet, as an exception to this modification, it is one of 
 the already-mentioned^ qualifications of the nullity of the 
 ultra vires contract, that the courts in a variety of cases, 
 probably not reducible to a rule, suffer the estoppel to cast 
 on the corporation an obligation not quite within the sphere 
 ordained for it by the legislature.* • 
 
 § 1024. The Doctrine of this Chapter restated. 
 
 A corporation, being an artificial person, can, Hke a natural 
 one, enter into contracts. But, since it is created for spe- 
 cific purposes, and is endowed with only a part of what per- 
 tains to individuals, its powers of contract are limited by the 
 objects for which it was brought into existence. Yet, while 
 it must follow its charter, it may, if not restrained thereby, 
 make its bargains by forms and methods similar to those em- 
 ployed by individuals ; the chief distinction as to contract 
 being, that its sphere of action is narrower than theirs. 
 
 1 Ante, § 1012. 8 Bis. 435 ; Auerbach v. Le Sueur Mill, 
 
 2 Webster v. Buffalo Ins. Co. 2 Mc- 28 Minn. 291 ; Whitney Arms Co. v. 
 Crary, 348; Scovill w. Thayer, 105 U. S. Barlow, 63 N. Y. 62; Close v. Glen- 
 143 ; Chambers v. Falkner, 65 Ala. wood Cemetery, 107 U. S. 466 ; Morris 
 448; Bissell u. Spring Valley, 110 U. S. Commissioners v. Hinchman, 31 Kan. 
 162. 729; National Trust Co. v. Miller, 6 
 
 8 Ante, § 1012. Stew. Ch. 155 ; Gillespie v. Fort Wayne, 
 
 * See and compare Leslie v. TJrbana, &c. Bailroad, 17 Ind. 243. 
 
 409 
 
§ 1026 PARTIES AND OTHER PARTAKERS. [BOOK II. 
 
 CHAPTER XL. 
 
 CONTRACTS MADE THROUGH AGENTS. 
 
 § 1035. Introduction. 
 
 1026-1033. General Doctrine. 
 
 1034-1041. Who may be Agent. 
 
 1042-1049. How Agency created. 
 
 1050-1056. How terminated. 
 
 1057-1068. Express and Implied Powers of Agent. 
 
 1069-1090. Manner and Forms of the Contract. 
 
 1091-1110. Unauthorized, and Ratification. 
 
 1111-1115. Frauds by and to Agents. 
 
 1116-1121. Rights and Liabilities of Agents. 
 
 1 1 22. Doctrine of Chapter restated. 
 
 § 1025. How Chapter divided. — We shall consider, I. The 
 General Doctrine of Agency ; II. Who may be the Agent ; 
 III. How the Agency is created ; IV. How the Agency is 
 terminated ; V. The Express and Implied Powers of the 
 Agent; VI. The Manner and Forms of the Contract by 
 Agent ; VII. Unauthorized Contracts and their Ratification ; 
 VIII. Frauds by and to Agents; IX. The Rights and Lia- 
 bilities of Agents. 
 
 I. The General Doctrine of Agency. 
 
 § 1026. In Brief. — It appears to be the doctrine of the 
 books, that a part or all of the infant's limited capability 
 of contract can be exercised by him only in person.^ But, 
 for parties with complete legal capacity, the rule nearly or 
 quite universal is, that whatever one can do in person he 
 
 1 Ante, § 930. 
 
 410 
 
CHAP. XL.] CONTRACTS THROUGH AGENTS. § 1032 
 
 can do by agent, and with the same effect. Qui facit per 
 alium facit per se?- 
 
 § 1027. Defined. — An agent is one who acts for and in the 
 stead of another, termed the principal,^ either generally or in 
 some particular business or thing, and either after his own 
 discretion in full or in part, or under a specific command.^ 
 To illustrate the nature of an agency, — 
 
 § 1028. Notice — Knowledge. — Notice given to an agent, 
 while acting in the agency, is notice to the principal.* And 
 ordinarily the agent's knowledge is, in like circumstances, the 
 principal's.^ But knowledge obtained by an attorney while 
 serving another person has been deemed not to be the equiv- 
 alent of notice to the client.® On the other hand, knowledge 
 of an agent, acquired before he became such, yet present in 
 his mind while carrying out the agency, has been adjudged 
 to be notice to the principal.^ Again, — 
 
 § 1029. Payment — to the agent is payment to the princi- 
 pal.* But the debtor's release to the agent, of what the latter 
 owes him, cannot be such ; for neither in fact nor in appear- 
 ance is this transaction authorized by the principal.® 
 
 § 1030. Possession. — The possession of a thing by a ser- 
 vant or other agent is the possession also of the master or 
 principal.!" 
 
 § 1031. Making Contract. — The agent's act of bargaining 
 for his principal is the principal's act." And a promise made 
 to the agent is a promise to the principal.!^ 
 
 § 1032. In Pleading, — a thing which one has done by his 
 
 1 Broom Leg. Max. 2d Eng. ed. 645 Tagg v. Tennessee Nat. Bank, 9 Heisk. 
 et seq. ; Story Agency, § 2, 6 ; 1 Bishop 479. 
 
 Crim. Law, § 673. » Herrington v. McCollum, 73 111. 476. 
 
 2 2 Bishop Crim. Law, § 333. 1 Lebanon Savings Banli v. Hollen- 
 2 Compare with Story Agency, § 3. beck, 29 Minn. 322. 
 
 * Pringle V. Dunn, 37 Wis. 449 ; * McCrary ». Ashbaugh, 44 Misso. 
 
 Mountford v. Scott, 3 Madd. 34 ; Ver- 410 ; Ely v. Harvey, 6 Bush, 620 ; Yates 
 
 mont Mining and Quarrying Co. w.Wind- v. Ereckleton, 2 Dong. 623. 
 
 ham County Bank, 44"Vt. 489 ; Mem- « Mitchell v. Printap, 68 Ga. 675. 
 
 phis, &c. Railway w. Koch, 28 Kan. 565 ; ic Goodwin v. Garr, 8 Cal. 615; 
 
 Saulsbury v. Wimberly, 60 Ga. 78 ; Jowers v. Blandy, 58 Ga. 379 ; 2 Bishop 
 
 Drake v. Barker, 54 Vt. 372 ; McNa- Crim. Law, § 824. 
 
 mara v. McNamara, 62 Ga. 200. " Cooke v. Seeley, 2 Exch. 746. 
 
 6 Corliss V. Smith, 53 Vt. 532 ; 12 Kirby v. Mills, 78 N. C. 124. 
 
 411 
 
§ 1035 PARTIES AND OTHER PARTAKERS. [bOOK II. 
 
 agent may be charged as done by himself, uor need there be 
 any iiaention of the agent or agency.^ For example, an aver- 
 ment in a declaration that A accepted a bill is supported by 
 proof that B his agent accepted it ; thus, " for A, B." 2 
 And an allegation that the plaintiff delivered a specified 
 quantity of milk to the defendant, at his request, is sustained 
 by proof that the milk was ^delivered to the defendant's wife, 
 while living apart from him, under circumstances compelling 
 him to pay therefor.^ But if a pleader needlessly states that 
 an indorsement, which in fact was by procuration, was made 
 by the defendant's " own proper hand writing being thereto 
 subscribed," this will be ill for the variance.* 
 
 § 1033. Sorts of Agent. — There are many different kinds 
 of agent, such as broker, attorney, auctioneer, clerk, and the 
 like; some of which are known by the more specific name, 
 and others can be designated only as agents. Accurately 
 considered, all are governed by one law ; but they differ in 
 that their presumed authority varies with the sort, or mime. 
 The particulars will appear as we proceed. 
 
 II. Who may he the Agent. 
 
 § 1034. Any Capable Person, — that is, one competent to 
 act for himself, — may be an agent.^ So, also, — 
 
 § 1035. Married Woman — Husband — Minor. — A feme 
 covert ® or a minor,'^ of sufficient actual capacity, may be an 
 agent, the civil disabilities not disqualifying. And where, 
 as under recent statutes, the wife has the power of contract- 
 ing on her own account, her husband may be her agent there- 
 for.^ It was always common for the wife to be the husband's 
 agent.^ But — 
 
 1 1 Bishop Crira. Proced. § 332. Misso. 464 ; Butler v. Price, 110 Mass. 
 
 2 Heys V. Heseltine, 2 Camp. 604. 97; Brouer v. Vandenburgh, 31 Barb. 
 " Benjamin v. Dockham, 134 Mass. 648. 
 
 418. ' Talbot V. Bowen, 1 A. K. Mar. 436. 
 
 * Levy V. Wilson, 5 Esp. 180. » Arnold v. Spurr, 130 Mass. 347; 
 
 ^ Lea V. Bringier, 19 La. An. 197. Jones v. Read, 1 La. An. 200. 
 
 ' 1 Bishop Mar. Women, § 701 ; 2 9 1 Bishop Mar. Women, as above; 
 
 lb. § 400-414 ; Hopkins v. MoUinieux, Hopkins v. Mollinieux, supra ; Bng- 
 
 4 Wend. 465; Singleton u.'Mann, 3 mann t). Immel, 59 Wis. 249. 
 
 412 
 
CHAP. XL.] CONTRACTS THROUGH AGKNTS. § 1041 
 
 § 1036. Insane Person. — An insane person cannot be an 
 agent,^ because incapable either of exercising a discretion or 
 following instructions. 
 
 § 1037. Functions compatible and incompatible : — 
 
 Agent for Two or More. — One may be an agent for two or 
 more persons, when not required to do incompatible things ; ^ 
 as — 
 
 § 1038. Auctioneer — Broker. — An auctioneer, who is the 
 agent of the seller, becomes also the agent of the buyer 
 whose bid he accepts, to the extent that he can make for 
 both parties the memorandum required by the Statute of 
 Frauds.^ And it is the same with a broker.* But — 
 
 § 1039. Party, and Agent for Opposite Party. — One cannot 
 be both a party, and agent for the opposite party ; ^ as, to 
 sign both for the latter and himself the memorandum required 
 by the Statute of Frauds.® And it is the same though he is 
 an auctioneer, selling goods of which he is personally the 
 general owner .^ Therefore, also, — 
 
 § 1040. Dealing with Self. — A factor or other agent to sell 
 cannot buy of himself the goods of his principal, which he 
 has for sale.^ And, — 
 
 § 1041. Agent for both Parties, with Discretion. — If there 
 is a discretion to be exercised in a dealing, the same person 
 cannot be the agent of both parties ; for it is inconsistent tha;t 
 a man should bargain with himself.® 
 
 1 Story Agency, § 7 ; post, § 1055. « Sharman v. Brandt, Law Rep. 6 
 
 2 Hinckley v. Arey, 27 Maine, 362 ; Q. B. 720. 
 
 Scott V. Mann, 36 Texas, 157; Cottom ' Bento. Cobb, 9 Gray, 397. 
 
 V. Holliday, 59 111. 176. See Walker 8 Ante, § 880, 881 ; Keighler v. Sav- 
 
 V. American National Bank, 49 N. Y. age Manuf. Co. 12 Md. 383 ; Martin v. 
 
 659. Moulton, 8 N. H. 504 ; Scott v. Mann, 
 
 » Simon v. Motivos, 3 Bur. 1921, I 36 Texas, 157; Adams v. Sayre, 70 Ala. 
 
 W. Bl. 599 ; Fairbrother v. Prattent, 318. 
 
 Dan. 64; Kemeys v. Proctor, 3 Ves. & 'Ex parte Bennett, 10 Ves. 381; 
 
 B. 57 ; Emmerson v. Heelis, 2 Taunt. Copeland v. Mercantile Ins. Co. 6 Pick. 
 
 38; Walker v. Herring, 21 Grat. 678; 198, 204 ; Utica Ins. Co. v. Toledo Ins. 
 
 White K. Proctor, 4 Taunt. 209; Pike Co. 17 Barb. 132; New York Central 
 
 V. Balch, 38 Maine, 302 ; Horton v. Mc- Ins. Co. v. National Protection Ins. Co. 
 
 Carty, 53 Maine, 394. 4 Keman, 85. And see Capener v. Ho- 
 
 * Rucker v. Cammeyer, 1 Esp. 105. gan, 40 Ohio State, 203. 
 
 6 Campbell v. Murray, 62 Ga. 86. 
 
 413 
 
§ 1046 PARTIES AND OTHER PARTAKERS. [bOOK II. 
 
 III. How the Agency is created. 
 
 § 1042. In General. — The methods are as various as those 
 of entering into contracts. Thus, — 
 
 § 1043. The Law — may create an agency ; as, where it au- 
 thorizes the wife to pledge her husband's credit, even though 
 in fact he dissents.^ 
 
 § 1044. Implication. — The most common of all methods is 
 where one by his conduct, or by words employed with a dif- 
 ferent object primarily in view, makes another in matter of 
 law his agent. But this sort of question is for subsequent 
 sub-titles.^ 
 
 § 1045. Specialty. — An authority to an agent to execute, 
 in the absence of the principal, an instrument under seal, 
 must in all instances be itself under seal. It can be conferred 
 in no other way. For the authorization must be by a writing 
 of as high a nature as the one to be executed.^ But, — 
 
 § 1046. Instrument not requiring Seal — Surplus Seal. — A 
 seal unduly attached to an instrument is a mere redundancy; 
 therefore, in law, such an instrument, being deemed without 
 §eal, is a simple contract, not a specialty.* So that the 
 agent's authorization to execute it, or any contract not legally 
 required to be sealed, need not be under seal.^ An illustra- 
 tive consequence of which is, that one having an unsealed 
 power to sell land can make the sale, but not the conveyance ; 
 
 1 Ante, § 235, 949 ; Benjamin v. 1 Coldw. 163 ; Hanford v. McNair, 9 
 Dockham, 134 Mass. 418. Wend. 54 ; Gordon v. Bulkeley, 14 S. 
 
 2 Post, § 1057 et seq., 1091 et seq. & R. 331 ; Blood v. Goodrich, 9 Wend. 
 8 Harshaw v. McKesson, 65 N. C. 68 ; Cooper v. Rankin, 5 Binn. 613; 
 
 688 ; Kowe v. Ware, 30 Ga. 278 ; Maus Banorgee v. Hovey, 5 Mass. II ; Spurr 
 V. Worthing, 3 Scam. 26 ; Rhode t-. v. Trimble, 1 A. K. Mar. 278 ; Worrall 
 Louthain, 8 Blackf. 413; McMurtry v. v. Munn, 1 Selden, 229; Tappan k. Bed- 
 Frank, 4 T. B. Monr. 39 ; Mitchell v. field, 1 Halst. Ch. 339 ; Smith «. Dick- 
 Sproul, 5 J. J. Mar. 264 ; Wheeler v. inson, 6 Humph. 261 ; Berkeley v. Hat- 
 Nevins, 34 Maine, 54 ; Baker v. Free- dy, 8 D. & R. 102, 5 B. & C. 355 ; Mc- 
 man, 35 Maine, 485 ; Shuetze v. Bailey, Mnrtry v. Brown, 6 Neb. 368; Elliott 
 40 Misso. 69 ; Smith v. Perry, 5 Dutcher, v. Stocks, 67 Ala. 336. 
 74; Kime ii. Brooks, 9 Ire. 218 ; Gage * Ante, § 394. 
 V. Gage, 10 Fost. N. H. 420 ; Butter- « Wagoner v. Watts, 15 Vroom, 126, 
 field V. Beall, 3 Ind. 203 ; Cain v. Heard, And see post, § 1096. 
 414 
 
CHAP. XL.] CONTRACTS THROUGH AGENTS. § 1049 
 
 because the former may be without seal, not the latter.^ 
 Moreover, — 
 
 § 1047. In Presence of Principal. — What one does in the 
 presence of another, whose will concurs therein, is in law the 
 latter's personal act.^ Therefore if a party verbally author- 
 izes any individual standing by to affix his name and seal to 
 a written contract, or tacitly consents thereto, and it is done 
 in his presence, the execution is his own, not the agent's for 
 him, precisely the same as though it were by his own hand. 
 No authorizing seal is necessary.^ 
 
 § 1048. Corporation Deed. — A corporation has no bodily 
 presence, and it can act only by its officers and other agents. 
 Consequent!}', when it makes its deed,* the authority to the 
 person who affixes the common seal need not be under seal ; 
 since all the presence it is capable of is with its agent through 
 whom it is acting. It could in no other manner put its seal 
 to a power of attorney.* 
 
 § 1049. Simple Contracts in 'Writing. — Since all actual con- 
 tracts not under seal, whether by spoken or written words, 
 are of the one grade called parol or simple,® any unsealed un- 
 dertaking may be executed by an agent verbally authorized. 
 And it is immaterial whether such contract is itself oral or in 
 writing ; or, if the latter, whether or not there is a statute, like 
 the Statute of Frauds, making writing essential to its validity.^ 
 The authority may even be inferred from circumstances.^ 
 
 1 Watson V. Sherman, 84 111. 263. 12 Mass. 237, 240; Shaw v. Nudd, 8 
 
 2 1 Bishop Crim. Law, § 648. Pick. 9 ; Small v. Owings, 1 Md. Ch. 
 8 Ante, § 112, 345; Harshaw v. Mc- 363; Deverell ?;. Bolton, 18 Ves. 505, 
 
 Kesson, 65 N. C. 688; Ball v. Dunster- 509; Mortlock v. BuUer, 10 Ves. 292, 
 
 ville, 4 T. R. 313; Mackay v. Blood- 311; Kemeys v. Proctor, 3 Ves. & B. 
 
 good, 9 Johns. 285 ; McMurtry v. 57 ; Emmerson v. Heelis, 2 Taunt. 38 ; 
 
 Brown, 6 Neb. 368. Eucker v. Cammeyer, 1 Esp. 105; Coles 
 
 1 Ante, § 315, 1016,1019; Stow v. v. Trecothick, 9 Ves. 234, 250; Chal- 
 
 Wyse, 7 Conn. 214. loner v. Bouok, 66 Wis. 652 ; Barker v. 
 
 5 See, for illustration, Burrill w. Nar Garvey, 83 111. 184; Miles v. Cook, 1 
 
 hant Bank, 2 Met. 163. Grant, Pa. 58. 
 
 " Ante, § 26, 27, 159, 163, 180. * Trundy c. Farrar, 32 Maine, 225; 
 
 ' Heard v. Pilley, Law Rep. 4 Ch. Pole v. Leask, 9 Jur. n. s. 829 ; McDo- 
 
 Ap. 548 ; Long v. Hartwell, 5 Vroom, nough v. Heyman, 38 Mich. 334 ; Hull 
 
 116; Yerby v. Grigsby, 9 Leigh, 387; «. Jones, 69 Misso. 587; Shaw v. Hall, 
 
 Emerson v. Providence Hat Manuf. Co. 134 Mass. 103. 
 
 415 
 
§ 1051 
 
 PARTIES AND OTHER PARTAKERS. 
 
 [book II. 
 
 IV. How the Agency is terminated. 
 
 § 1050. At Pleasure — (How). — An agent may generally 
 withdraw from the service at pleasure ; ^ though, if he there- 
 by violates his contract, he will be liable to the principal in 
 damages.^ In like manner, ordinarily the principal may dis- 
 charge the agent at will.^ And he may do it by parol, even 
 where the agency is conferred by an instrument under seal.* 
 Nor is the rule diflerent though, on the face of the instru- 
 ment, the authority to the agent is irrevocable.^ But, — 
 
 §1051. Agency coupled with Interest. — If the agent lias 
 an interest of his own in the execution of the agency, — as 
 where, after selling property or collecting money for his prin- 
 cipal, he is to reserve out of his receipts payment for a debt 
 which the principal owes him ; or, if his interest is in the 
 thing itself to which the agency relates, — as, where he is 
 mortgagee under a power of sale mortgage (such agency 
 being termed, when of the latter sort, and by some also when 
 of the former, an agency coupled with an interest), — the 
 principal cannot revoke it to the injury of the agent, who, in 
 spite of an attempted revocation, may, for his own protection, 
 still perform the act.® 
 
 1 Coffin V. Landis, 5 Philad. 176 ; 
 Conrey f. Braudegee, 2 La. An. 132. 
 See ante, § 837. 
 
 2 Story Agency, § 478 ; United States 
 V. Jarvis, Daveis, 274. 
 
 8 Smart v. Sandars, 3 C. B. 380; 
 Trumbull v. Nicholson, 27 111. 149; 
 Brookshire v. Voncannon, 6 Ire. 231 ; 
 Phillips V. Howell, 60 Ga. 411. 
 
 * Brookshire v. Brookshire, 8 Ire. 
 74 ; Blackstone v. Buttermore, 3 Smith, 
 Pa. 266. 
 
 ^ MacGregor v. GarJner, 14 Iowa, 
 326. 
 
 8 Hunt V. Eousmanier, 8 Wheat. 
 174 ; Varnum v. Meserve, 8 Allen, 158 ; 
 Whitehead v. Lord, 7 Exch. 691 ; Wat- 
 son V. King, 4 Camp. 272 j Gaussen ». 
 Morton, 10 B. & C. 731; Bromley v. 
 Holland, 7 Ves. 3 ; Smart v. Sandars, 
 
 416 
 
 3 C. B. 380 ; Hutchins v. Hebbard, 34 
 N. Y. 24 ; Wheeler v. Knaggs, 8 Ohio, 
 169, 172 ; Marziou v. Pioche, 8 Gal. 522 ; 
 Posten V. Rassette, 5 Cal. 467 ; Hyrson 
 V. Noland, 14 Ark. 710 ; Barr ». Schroe- 
 der, 32 Cal. 609 ; Bonney \t. Smith, 17 
 111. 531 ; Hartley's Appeal, 3 Smith, Pa. 
 212 ; Blackstone v. Buttermore, 3 Smith, 
 Pa. 266 ; Daugherty v. Moon, 59 Texas, 
 397; Walsh v. Whitcomb, 2 Esp. 565; 
 Abbott V. Straiten, 3 Jones & La. T. 
 603. What an Interest. — Expendi- 
 tures by the agent in carrying out the 
 agency do not, within the meaning of this 
 rule, create an interest preventing rev- 
 ocation. The principal may, at will, re- 
 voke the agencv notwithstanding. Simp- 
 son V. Lamb, 17 C. B. 603, 2 Jur. N. 9. 
 91. Thus, the owner of land containing 
 iron ore authorized its sale by an agent 
 
CHAP. XL.] 
 
 CONTRACTS THROUGH AGENTS. 
 
 § 1053 
 
 § 1062. Death. — The death of either party terminates the 
 agency ; ^ that of the agent, because a dead man can perform 
 no act ; that of the principal, because his earthly existence 
 has cestsed, and in the nature" of things there can be no agent 
 without a principal.^ Even — 
 
 § 1053. Unknown to Agent. — Though the death of the 
 principal is unknown to the agent, so that the latter executes 
 in good faith what he believes to be a continuing agency, 
 such execution is void.^ This consequence is carried so far 
 that, if a verdict is rendered in court, and a judgment entered 
 thereon, then it is discovered that the party died the night 
 before the trial, the proceeding will be set aside,* — a rule 
 which has some qualifications, and is subject to nunc pro tuna 
 judgments, questions not for this place.^ 
 
 who was to transport specimens of the 
 ore to England, advertise it there, and, 
 as compensation, to have " an undivided 
 one fourth interest in the proceeds of 
 sale, when sold ; " and it was held that 
 this authority was not coupled with an 
 interest, therefore was revocable at any 
 time before sale. Said Somerville, J. : 
 " He had no interest in the subject mat- 
 ter of his agency, the land itself He 
 was interested only in the money to be 
 derived as the proceeds of the sale of 
 the land, which could onjy be realized 
 by the completion of his agency, or by 
 some negotiation which was tantamount 
 to it. He had parted with no money, 
 or other value, for the security of which 
 the power of sale was conferred in the 
 agreement. He had risked in the ven- 
 ture of his agency only his personal ser- 
 vices, and the expenses incidental to its 
 execution. The undertaking to trans- 
 port specimens of iron ore to England, 
 and to advertise the lands there, may be 
 embraced as a part of the ordinary ex- 
 pense to be incurred in the usual course 
 of such an employment. It is fair to 
 presume that he risked this much in 
 view of the large compensation to be 
 reaped as commissions, in the event of 
 a successful sale." Chambers v. Seay, 
 73 Ala. 372, 378. 
 
 27 
 
 1 See ante, § 588, 590, 600, 858, 861, 
 886. 
 
 2 Saltmarsh v. Smith, 32 Ala. 404 ; 
 Boone v. Clarke, 3 Cranch, C. C. 389 ; 
 Scruggs V. Driver, 31 Ala. 274; Mc- 
 Donald V. Black, 20 Ohio, 185 ; Michi- 
 gan Ins. Co. V. Leavenworth, 30 Vt. 11 ; 
 Gale V. Tappan, 12 N. H. 145; Turnan 
 V. Temke, 84 111. 286; Amore v. La 
 Mothe, 5 Abb. N. C. 146 ; Darr v. Darr, 
 59 Iowa, 81 ; Campanari v. Woodbum, 
 15 C. B. 400, 1 Jur. N. s. 17; Lehigh 
 Coal, &c. Co. V. Mohr, 2 Norris, Pa. 
 228 ; Wallace v. Cook, 5 Esp. 117. 
 
 * Davis V. Windsor Savings Bank, 46 
 Vt. 728 ; Gait v. Galloway, 4 Pet. 332, 
 344; Bank of Washington v. Peirson, 
 2 Cranch, C. C. 685 ; Travers v. Crane, 
 15 Cal. 12 ; Wilson v. Edmonds, 4 Post. 
 N. H. 51 7 ; EigB v. Cage, 2 Humph. 350 ; 
 Peries v. Aycinena, 3 Watts. & S. 64 ; 
 Lewis V. Kerr, 17 Iowa, 73; Cleveland 
 V. Williams, 29 Texas, 204 ; Blades v. 
 Free, 9 B. & C, 167; Smout v. Ilbery, 
 10 M. & W. 1. 
 
 4 Taylor v. Harris, 3 B. & P. 549. 
 
 6 Jacobs V. Miniconi, 7 T. K. 31 ; 
 Turner v. London, &c. Railway, Law 
 Eep. 17 Eq. 561 ; Erie Railway i;. Ack- 
 erson, 4 Vroom, 33; Bigelow v. Ren- 
 ker, 25 Ohio State, 542; In re Beck- 
 with, 87 N. Y. 503. 
 
 417 
 
§ 1055 PAETIES AND OTHER PAETAKEES. [BOOK II. 
 
 § 1054. Coupled with Interest. — If the agency is coupled 
 with an interest, as already explained,^ the death cannot, on 
 just principles, take from the agent his rights. Still, in a 
 court of law, it will necessarily be held to terminate the 
 agency, notwithstanding the interest, in all those circum- 
 stances in which the act of agency can be performed only in 
 the name of the principal ; for, exclaimed Lord Ellenborough, 
 " How can a valid act be done in the name of a dead man ? " ^ 
 But where, by the rules of law, the agency can be executed 
 in the agent's own name, — as, where he has a general or 
 special ownership in the thing, — death, the agency being 
 thus coupled with an interest, does not end the agent's 
 power.^ And in other circumstances equity ought to furnish 
 relief, though it is difficult precisely to define on the authori- 
 ties when it will : thus, if A, who has agreed to sell land to B, 
 dies, equity, holding the heirs of the former to be trustees of 
 the latter,* will compel them to fulfil the agreement ; ^ in like 
 manner, if, for a valuable consideration, A had given B a 
 power of attorney to convey the land, equity should, as a 
 question of just legal principle, compel his heirs to renew 
 the power, or make the conveyance to the person designated 
 by A.® 
 
 § 1055. Insanity. — Plainly the agent's insanity, if full and 
 profound, terminates the agency ; for he now lacks the dis- 
 cretion which its execution requires. And, since the insanity 
 of the principal disqualifies him to exercise the ordinary power 
 of revocation, which is a main incident of a mere naked 
 agency, it also, in reason, puts an end to the agent's authority. 
 
 1 Ante, § 1051. tion, consult Story Agency, § 483, 488- 
 
 2 Watson V. King, 4 Camp. 272, 274 ; 490 ; Hunt v. Kousmanier, 8 Wheat. 
 Clayton v. Merrett, .'52 Missis. 353. 174; Lepard v. Vernon, 2 Ves. & B. 
 
 s Moore v. Hall, 48 Mich. 143; Ben- 51 ; Varnum v. Meserve, 8 Allen, 158; 
 
 nett V. Stoddard, 58 Iowa, 654. McGriiF v. Porter, 5 Fla. 373 ; Hough- 
 
 * Darris's Case, 3 Salk. 85. taling v. Marvin, 7 Barb. 412; Bergen 
 
 s 1 Story Eq. § 788, 789 ; Bar- v. Bennett, 1 Gaines Cas. 1 ; Robertson 
 
 nard v. Macy, 11 Ind. 536; Newton v. v. Paul, 16 Texas, 472; Buchanan v. 
 
 Swazcy, 8 N. H. 9; Tilton v. Tilton, 9 Monroe, 22 Texas, 537 ; Van Bergen 
 
 N. H. 385; Hill v. Eessegieu, 17 Barb. t>. Demarest, 4 Johns. Ch. 37; Speer v. 
 
 162. Haddack, 31 111. 439. 
 
 ' On the entire subject of this sec- 
 418 
 
CHAP. XL.] CONTRACTS THROUGH AGENTS. § 1057 
 
 And, as applied to cases wherein the person dealing with 
 the agent had notice of the insanity of the principal, and the 
 agent had no interest of his own, this doctrine is fully sustained 
 by the decisions.^ But the principal's insanity does not ter- 
 minate an agency coupled with an interest.^ Beyond which, 
 there is conceded to be some indefinite ground ; as, if the 
 party dealing with the agent had contracted with him in a 
 similar way when the principal was sane, and had no notice 
 of the insanity, or if otherwise there were good faith and a 
 benefit conferred,^ or if the mental derangement was slight, 
 some courts or all will sustain the contract.* 
 
 § 1056. other Methods. — There are other methods of ter- 
 minating an agency ; as, performance by the agent,° the con- 
 veying away, by the principal, of the thing to which the 
 agency relates,® the bankruptcy of the principal,'^ the marriage 
 of a feme sole principal,^ but not necessarily of a feme sole 
 agent,® the marriage of a single man where the agency is to 
 sell land which constitutes his home,^*' the dissolution of a 
 company or partnership principal ; ^^ and there are other 
 obvious ways.^^ 
 
 V. The Express and Implied Powers of the Agent. 
 
 § 1057. Source of Power — (infancy — De Jure, De Facto). 
 — The powers of the agent cannot exceed those of his princi- 
 pal,^3 and in all other respects his authorization must proceed 
 from a competent source. Thus, in cases where an infant's 
 
 1 Drew V. Nunn, 4 Q. B. D. 661 ; « Armstrong i;. Kerns, 61 Md. 364. 
 Hill ». Day, 7 Stew. Ch. 150; Davis K. lo Henderson v. Ford, 46 Texas, 
 Lane, 10 N. H. 156; Story Agency, 627. 
 
 § 481, 487. 11 Montross ». Roger Williams Ins. 
 
 2 Haggart v. Ranger, 15 Fed. Rep. Co. 49 Mich. 477 ; Whitworth w. Ballard, 
 860 ; Hill V. Day, supra. 56 Ind. 279 ; Meyer v. Atkins, 29 La. 
 
 ' Ante, § 969, 970. An. 586 ; Vaccaro v. Toof, 9 Heisk. 
 
 * Hill V. Day, supra; Drew v. Nunn, 194. 
 
 snpra. i'^ Andsee Jones w. Commercial Bank, 
 
 5 Antoni v. Belknap, 102 Mass. 193. 78 Ky. 413. 
 
 « Trumbull v. Nicholson, 27 111. 149. i" Montreal Assurance Co. v. McGil- 
 
 ' Story Agency, § 482. Hvray, 13 Moore P. C. 87 ; Cook ». Lind- 
 
 8 Wambole v. Foote, 2 Dak. 1 ; Drew say, 57 Texas, 67. 
 
 V. Nunn, 4 Q. B. D. 661, 665. 
 
 419 
 
§ 1059 PARTIES AND OTHER PARTAKERS. [bOOK II. 
 
 capacity does not extend to the appointment of an agent,^ 
 the acts of one whom he attempts to empower do not bind 
 him.2 Nor can one, under any circumstances, and by what- 
 ever means, create an agency in himself.^ But a mere oflBcer 
 de facto of a corporation, not entitled to the office dejure, may, 
 while acting in the office, transmit a competent authority.* 
 
 § 1058. Express. — When the instruction to the agent is 
 in express words, not requiring interpretation,^ no question 
 can arise as to his powers if within the principal's. Still the 
 meaning must in everj' litigated case be judicially ascertained, 
 — as to which, the rules laid down in a preceding chapter will 
 ordinarily suffice.® To illustrate, — 
 
 § 1059. Meanings. — It being the legal rule that the prin- 
 cipal can terminate the agency at pleasure,'^ if a written power 
 of attorney is silent as to its duration, the agent, whenever 
 discharged, cannot recover damages for being turned off.^ 
 And if such power recites that the principal is going abroad, 
 and wishes an attorney to act for him during his absence, the 
 agency ends with his return.^ An authorization to sign the 
 principal's name "to any paper" is limited to paper within 
 the principal's business, not extending to what is outside.'" 
 A power to loan money does not include that of taking 
 usurious interest.^' One carrying on business in the name of 
 an agent is liable for the agent's contracts made in such 
 name.i^ One who orders a club supper, with an agreed bill 
 of fare, is responsible only for what is within the bill ; his 
 guests, by calling for things outside, bind themselves, not 
 him, to pay for them.'^ A power of attorney is not separable 
 into parts against its obvious meaning ; as, if it authorizes the 
 
 1 Ante, § 930. ' Ante, § 1050. 
 
 2 Armitage v. Widoe, 36 Mich. 124 ; 8 Jacobs v. Warfield, 23 La. An. 
 Saunderson v. Marr, 1 H. Bl. 75. 395. 
 
 8 Stringham v. St. Nicholas Ins. Co. » Danby v. Coutts, 29 Ch. D. 500, 
 
 4 Abb. Ap. 315. 514. 
 
 * 1 Bishop Crim. Law, § 464 ; Wood- i" Camden Safe Deposit, &c. Co. v. 
 
 bury V. Knox, 74 Maine, 462; Abbott Abbott, 15 Vroqm, 257. And see Att- 
 
 V. Chase, 75 Maine, 83 ; San Jose Sav. wood v. Munnings, 7 B. & C. 278. 
 
 Bank v. Sierra Lumber Co. 63 Cal. 179. 'i Gokey v. Knapp, 44 Iowa, 32. 
 
 '' Ante, § 379. " Chandler v. Coe, 54 N. H. 561. 
 
 6 Ante, § 365 et seq. l' Eaton v. Gay, 44 Mich. 431. 
 
 420 
 
CHAP. XL.] CONTRACTS THROUGH AGENTS. § 1061 
 
 cancelling of a mortgage and the notes it secures, and the 
 taking of a new mortgage and notes, the agent cannot do 
 the former without the latter.^ An authority, in general 
 terms, to hire a clerk for the principal at eleven dollars a 
 week does not empower the agent to fix the period of service 
 at six months.^ Two separate agents may be employed 
 about the same business, if of a nature to admit of it ; there- 
 fore a principal, by authorizing a second agent to negotiate 
 bonds, does not by implication put an end to the power of 
 the first agent.^ 
 
 § 1060. Implied from Express. — Whatever powers are 
 strictly necessary to the carrying out of those expressly given 
 to the agent, are his by implication.* There is a similar rule 
 governing the interpretation of statutes.^ The powers thus 
 implied are, within principles explained in a preceding chap- 
 ter,^ regarded the same in the law as though set down in 
 words. To illustrate, — 
 
 § 1061. Instances. — An agent to open a new channel, 
 changing the course of a stream, may, to expedite the work, 
 construct a dam across its former bed.' One authorized to 
 get immediate possession of a particular storeroom, may give 
 his principal's promise to pay a bonus which the two under- 
 stood would be required.^ And a committee to investigate 
 the affairs and accounts of a corporation has, by implication,' 
 authority to employ an accountant, and obtain for him cleri- 
 cal assistance.^ So an agent to travel and sell steam engines,!" 
 or a commercial traveller with samples,!^ may hire the teams 
 necessary for transportation. On the other hand, a son em- 
 
 1 Foster v. Paine, 56 Iowa, 622. tural Ins. Co. 93 N. Y. 495, 505 ; Boyd 
 
 s Pasco V. Smith, 49 Conn. 576. An v. Satterwhite, 10 S. C. 45 ; Howard v. 
 
 agency "at a salary of one thousand Baillie, 2 H. Bl. 618 ; CoUen w. Gardner, 
 
 dollars per year, payable quarterly," is 2rBeav. 540. 
 
 for at least one year. Horn v. Western ' Bishop VIT'ritten Laws, § 137. 
 
 Land Assoc. 22 Minn. 233. 6 Ante, § 239 et seq. 
 
 8 Hatch I). Coddington, 95 U. S. 48. '' Barns v. Hannibal, 71 Misso. 449. 
 
 * Star Line v. Van 'Vliet, 43 Mich. * Shackman v. Little, 87 Ind. 181. 
 
 364 ; Craighead v. Peterson, 72 N. Y. » Star Line v. Van Vliet, 43 Mich. 
 
 279 ; Farrar v. Duncan, 29 La. An. 1 26 ; 364. 
 
 Shackman v. Little, 87 Ind. 181 ; Hardee " Huntley v. Mathias, 90 N. C. 101. 
 
 V. Hall, 12 Bush, 327 ; The Pontida, 9 " Bentley v. Doggett, 51 Wis. 224. 
 P. D. 177, 180 ; Benninghofl «. Agricul- 
 
 421 
 
§ 1062 PARTIES AND OTHER PARTAKERS. [BOOK II. 
 
 ployed to keep his father's books of account, and compute 
 the interest due on notes, cannot by virtue thereof accept a 
 quantity of corn in satisfaction of a note.^ One who may 
 secure a claim by note, bill of sale, mortgage, " or any way 
 to settle the above bill," cannot, therefore, to accomplish 
 the object, purchase the debtor's property, creating a debt 
 against his employer.^ One authorized to collect interest is 
 not, by implication therefrom, permitted to receive the prin- 
 cipal.^ An agency to collect a debt does not include the 
 power to release it ; * to solicit passengers for a railroad, does 
 not comprehend also a bargaining for freight ; ^ to carry out 
 an existing contract, does not authorize the making of a 
 change in it.^ And the agent's mere possession of a prom- 
 issory note, not indorsed, does not qualify him to receive 
 payment.'^ Again, — 
 
 § 1062. Authority to Sell. — The authority to sell a chat- 
 tel does not arise from its mere possession.^ Yet circum- 
 stances in connection with the possession may imply it.^ An 
 express authorization to deal with a thing is not extended 
 by interpretation beyond its terms and what is fairly neces- 
 sary to give them effect. Thus, one having a note for collec- 
 tion,^" or requested to get an offer for a diamond put into his 
 hands,^! cannot, therefore, sell it. And one has no power to 
 sell a business which he is general agent to manage.^^ A per- 
 son authorized to sell real estate and receive the purchase 
 money may execute the proper instruments of conveyance ; 
 
 1 Reynolds v. Ferree, 86 111. 570. s Covill v. Hill, 4 Denio, 323 ; Wil- 
 
 ^ Pollock V. Cohen, 32 Ohio State, son v. Nason, 4 Bosw. 155 ; Case u. 
 
 514. Jennings, 17 Texas, 661 ; Moore v. Rob- 
 
 8 Smith V. Kidd, 68 N. Y. 130, 137 ; inson, 62 Ala. 537 ; Cummins v. Beau- 
 Williams ». Walker, 2 Sandf. Ch. 325. mont, 68 Ala. 204. 
 
 * Herring v. Hottendorf, 74 N.'C. ' Dyer v. Pearson, 3 B. & C. 38, 4 
 
 588. D. & E. 648 ; Pickering v. Busk, 15 
 
 5 Taylor v. Chicago, &c. Railway, 74 East, 38. 
 
 m. 86. 10 Smith V. Johnson, 71 Misso. 382. 
 
 6 Gerrish v. Maher, 70 111. 470 ; " Levi v. Booth, 58 Md. 305. An 
 Rhine v. Blake, 59 Texas, 240 ; Mc- agent to find a purchaser may describe 
 Hany v. Schenk, 88 111. 357. And see the property, so as to bind the purchaser 
 Richmond Street Railroad v. Reed, 83 by the description. Mullens v. Miller, 
 Ind. 9. 22 Ch. D. 194. 
 
 ' Donbleday v. Kress, 50 N. Y. 410. 12 Holbrook v. Obeme, 56 Iowa, 324. 
 
 422 
 
CHAP. XL.] CONTRACTS THROUGH AGENTS. § 1063 
 
 for, without them, a sale cannot be made complete, and the 
 money received.' And a power to sell anything, while it 
 must be construed according to its nature and terms, carries 
 with it, in a general way, authority to execute the usual and 
 proper writings,^ — not always or necessarily, in the case of 
 real estate, extending to the deed.* One who may " sell " a 
 thing is ordinarily entitled to take payment ; * but he cannot, 
 therefore, barter or exchange it for what is not money ,^ or in 
 discharge of his own debt, or give credit.® Nor, where the 
 sale is, by permission, on credit, can he collect the payment.'^ 
 Nor, after a sale is made, can he rescind it or materially alter 
 its conditions.^ These conclusions may be varied by special 
 terms in the agent's authorization,® or by custom.^" To 
 illustrate, — 
 
 § 1063. Collateral to Sale — (VTarranty). — One empowered 
 to sell may bind his principal by any collateral stipulations 
 which are customary in the particular business.^' For ex- 
 ample, he may warrant the article to the extent sanctioned 
 by custom,'^ but to no degree where it is the custom to sell 
 without warranty.^* For cases not within any custom, the 
 authorities are conflicting, perhaps the greater number deny- 
 ing the power to warrant.^* But commonly some special cir- 
 
 1 Valentine v. Piper, 22 Pick. 85 ; 91 ; Taylor v. Starkey, 59 N. H. 
 Hemstreet v. Burdick, 90 111. 444 ; 142. 
 
 Stanwood w. Laughlin, 73 Maine, 112. ^ Burks v. Hubbard, 69 Ala. 379; 
 
 And seeHoUadayu. Daily, 19 Wal. 606; Wheeler, &c. Manuf. Co. v. Givan, 65 
 
 Lumpkin v. Wilson, 5 Heisk. 555 ; Du- Misso. 89. 
 
 pont V. Wertheman, 10 Cal. 354 ; Borel ' Clark v. Smith, 88 111. 298 ; Janney 
 V. Rollins, 30 Cal. 408; Heath v. Nutter, v. Boyd, 30 Minn. 319 ; Draper v. Rice, 
 50 Maine, 378 ; Watts's Appeal, 28 56 Iowa, 114. See Harris v. Simmer- 
 Smith, Pa. 370 ; Phillips v. Hornsby, 70 man, 81 III. 413. 
 Ala. 414 ; Bigelow v. Livingston, 28 ^ Adrian v. Lane, 13 S. C. 183. 
 Minn. 57. 9 Smart v. Sandars, 3 C. B. 380, 10 
 
 2 Lawrence v. Gallagher, 42 N. Y. Jur. 841 ; Hall v. Storrs, 7 Wis. 253. 
 Superior, 309 ; Haydock v. Stow, 40 i" Ante, § 444-459 ; Dickinson v. Lil- 
 K. Y. 363, 368. wall, 4 Camp. 279, 1 Stark. 128. 
 
 ' Ante, § 1045, 1046; Lyon u. Pol- " Herring v. Skaggs, 62 Ala. 180; 
 
 lock, 99 U. S. 668. Dingle v. Hare, 7 C. B. N. s. 145, 6 Jur. 
 
 * Collins B. Newton, 7 Baxter, 269 ; s. a. 679. 
 
 Higgins V. Moore, 6 Bosw. 344 ; Hatch ^^ Dingle v. Hare, supra. 
 
 V. Taylor, 10 N. H. 538 ; Cross v. Has- " Smith v. Tracy, 36 N. Y. 79. 
 
 kins, 13 Vt. 536. " See and compare, 1 Pars. Con. 60, 
 
 5 Hampton v. Moorhead, 62 Iowa, and the cases there cited ; Perrine v. 
 
 423 
 
§ 1065 PAETIE3 AND OTHER PAETAKER8. [BOOK 11. 
 
 cumstance, or the nature of the transaction, or of the thing 
 sold, will, and it is believed should, in the absence of custom, 
 decide the question. Thus, the power to sell a manufactured 
 article carries with it the power to warrant the quality.^ 
 And an agent to vend harvesters (which, like manufactured 
 articles, are for an ascertained and specific purpose) is pre- 
 sumptively authorized to add, to the sale of one, a proper 
 warranty,^ or the condition that it works well.^ But a safe 
 has uses besides protection against burglars, and an authority 
 to sell it does not include the power to warrant it burglar 
 proof.* 
 
 § 1064. Purchaser. — : An agent to purchase goods has the 
 implied authority to direct as to their delivery.^ And one to 
 buy a town site and lay out a town may bind his principal 
 by the dedication of land therein to the public use.^ The 
 agency necessarily includes these powers. But a person 
 directed to purchase goods with money put into his hands by 
 the principal, cannot buy on the latter's credit ; ^ nor, if he 
 does, is the principal bound though he receives and uses the 
 goods, unless he knows that they are not paid for.* Where 
 the principal does not provide the agent with the money, the 
 latter may pledge the former's credit ; for otherwise he can- 
 not execute the agency.® Again, — 
 
 § 1065. Arbitration. — An agent to settle claims against his 
 
 Cooley, 13 Vroom, 623, in the lower of the leading objects of a text book in 
 court Cooley v. Perrine, 1 2 Vroom, 322 ; the law is to unfold, from a higher stand- 
 Smith t'. Tracy, supra ; McCormick v. point than it is possible a judge should 
 Kelly, 28 Minn. 135 ; Graul v. Strutzel, occupy, the reasons which, not always 
 53 Iowa, 712; Herring v. Skaggs, 73 occurring to the judicial mind, really 
 Ala. 446. underlie the adjudications. This case 
 1 Boothby v. Scales, 27 Wis. 626. and those in the last note, if illustrative 
 
 * McCormick i-. Kelly, 28 Minn. 135 ; of this fact, are not more so than many 
 Murray v. Brooks, 41 Iowa, 45. others. 
 
 8 Deering v. Thorn, 29 Minn. 120. ^ Owen v. Brockschmidt, 54 Misso. 
 
 * Herring v. Skaggs, 73 Ala. 446. 285. 
 
 Of the Cases. — It is necessary occa- ^ Barteau v. West, 23 Wis. 416. 
 
 sionally to remind the young and inex- ' Post, § 1098. 
 perienced reader, though it would be ' Komorowski v. Krumdick, 56 Wis. 
 
 useless to the veteran, that judges in 23. See 'Adams w. Boies, 24 Iowa, 96; 
 
 their opinions do not always employ the Fraser v. McPherson, 3 Des. 393. 
 reasonings (ante, § 12-15) which the 9 Sprague v. GilIett,-9 Met. 91. See 
 
 legal author is required to present. One Berry k. Barnes, 23 Ark. 411. 
 
 424 
 
CHAP. XL.] CONTEACTS THROUGH AGENTS. § 1067 
 
 principal is not therefore authorized to submit them to arbi- 
 tration.i And one instructed to make a submission to a 
 particular arbitrator cannot, on his declining to act, substitute 
 another.2 
 
 § 1066. Nature of Agency. — The nature of the agency goes 
 far to determine the agent's powers. For example, whatever 
 be the authority of a railroad president ^ or superintendent * 
 to employ attendance, at its expense, on one of its servants 
 injured by its cars, the power is not as of course with a sta- 
 tion agent or conductor.^ Again, — 
 
 § 1067. Subagent. — In the absence of any controlling stip- 
 ulation, the agent may, or not, delegate a part or all of his 
 functions to a subagent, according to the nature and circum- 
 stances of the agency. As to which the leading distinction 
 is, that an agency to be exercised through a discretion in the 
 agent is a personal trust, and it cannot be transmitted to 
 another,^ but a power simply ministerial may be.^ And where 
 the agency requires acts both discretionary and ministerial, 
 the latter may be performed through a subagent or clerk, but 
 not the former.^ Thus, a payment made to the agent's clerk 
 is a payment to the agent.^ The agent's signature, by his 
 clerk, is good to papers which in ordinary business are exe- 
 cuted in this way.i" And an agent to sell real estate, having 
 in person fixed the price and done whatever else is discretion- 
 ary, can do the rest by subageut.^i But the main functions 
 
 1 Michigan Central Railroad v. Iowa, 532 ; Bocock v. Pavey, 8 Ohio State 
 Gougar, 55 111. 503. 270; Yates v. Freckleton, 2 Doug. 623. 
 
 2 Cox V. Fay, 54 Vt. 446. " ' Grady v. American Cent. Ins. Co. 
 ' Canneyw. South Pacific Coast Rail- supra; Ex parte Sutton, 2 Cox, 84; 
 
 road, 63 Cal. 501. Commercial Bank v. Norton, 1 Hill, 
 
 4 Marquette, &c. Railroad v. Taft, 28 N. Y. 501 ; Grinnell v. Buchanan, 1 Da- 
 Mich. 2S9. ly, 538 ; Eldridge v. Holway, 18 111. 445. 
 
 5 Tucker v. St. Louis, &c. Railway, 8 Kenwick v. Bancroft, 56 Iowa, 527 ; 
 54 Misso. 177; Cairo, &c. Railroad v. Rossi ter u. Trafalgar Life Assur. Assoc. 
 Maboney, 82 111. 73. 27 Beav. 377 ; Johnson v. Osenton, Law 
 
 ' Grady v. American Cent. Ins. Co. Rep. 4 Ex. 107, 112. 
 60 Misso. 116; JBrewster v. Hobart, 15 9 Ulrich v. McCovmick, 66 Ind. 243 
 
 Pick. 302; Emerson w. Providence Hat lo Newell v. Smith, 49 Vt, 255; Ex 
 
 Manuf. Co. 12 Mass. 237 ; Paul v. Ed- parte Sutton, 2 Cox, 84, 85 ; Lord v. 
 
 wards, 1 Misso. 30 ; Hunt v. Douglass, Hall, 2 Car. & K. 698 ; Norwich Uni- 
 
 22 Vt. 128; Warner v. Martin, H How. versity v. Denny, 47 Vt. 13. 
 U. S. 209, 224 ; Loomis v. Simpson, 13 11 Renwick v. Bancroft, supra. 
 
 425 
 
§ 1070 PARTIES AND OTHER PARTAKERS. [BOOK II. 
 
 of a sheriff's keeper of attached goods,i of one's broker,^ of 
 an agent to bind one by promissory notes,^ of the bailee of 
 one's property with power to sell,* a fortiori of a notary,^ 
 and multitudes of others within like reasons, are personal, 
 not to be delegated. Where, from the nature of the business, 
 the employment of subagents is necessary, and so presumably 
 contemplated, their appointment is authorized ; ^ in whicli 
 sort of case, the subagent is ordinarily deemed the principal's 
 agent, for whom the chief agent is not responsible.^ But in 
 the common case there is no privity between the principal 
 and subagent, and for the doings of the latter the agent is 
 answerable to the former the same as for his own.^ 
 
 § 1068. As to Third Persons — (Unauthorized). — Under 
 many circumstances, persons dealing with the agent are enti- 
 tled to assume that he has powers which in fact he has not, 
 and thus bind the principal where, in truth,, there was no au- 
 thority. But this sort of authorization is for a subsequent 
 sub- title.® 
 
 VI. The Manner and Forms of the Contract hy Agent. 
 
 § 1069. Distinctions. — The effect of contracts by agents 
 and the manner of executing them differ in some degree with 
 the sort of contract and its subject. We shall consider. First, 
 Specialties ; Secondly, Simple Contracts both Written and Oral. 
 
 § 1070. First. Specialties : — 
 
 Form of Writing. — Recurring to explanations already given,^* 
 
 1 Connor v. Parker, 114 Mass. 331. ' lb. ; Campbell v. Reeves, 3 Head, 
 
 2 Henderson v. Barnewall, 1 Y. & J. 226 ; Louisville, &c. Railroad i\ Blair, i 
 387. Baxter, 407 ; Saveland v. Green, 40 Wis. 
 
 8 Brewster v. Hobart, 15 Pick. 302 ; 431. 
 
 Emerson v. Providence Hat Manuf. Co. 8 Schmaling ». Thomlinson, 6 Taunt. 
 
 12 Mass. 237. 147 ; Cobb v. Becke, 6 Q. B. 930; Lou- 
 
 * Hunt «. Douglass, 22 Vt. 128. isville, &c. Railroad v. Blair, supra; 
 
 5 Commercial Bank v. Varnum, 3 Stephens v. Badcock, 3 B. & Ad. 354 ; 
 
 Lans. 86, 104. Commercial Bank v. Jones, 18 Texas, 
 
 ^ Krumra «. Jefferson Fire Ins. Co. 811 ; New Zealand, &c. Land Co. c 
 
 40 Ohio State, 225 ; Planters, &c. Nat. Watson, 7 Q. B. D. 374. 
 
 Bank v. First Nat. Bank, 75 N. C. 534 ; 9 Post, § 1091 et seq. 
 
 Dorchester, &c. Bank v. New England l» Ante, § 426, 427, 885, 994. 
 Bank, 1 Cush. 177. 
 
 426 
 
CHAP. XL.] CONTRACTS THROUGH AGENTS. § 1071 
 
 in the States where, as apparently in most of them, the old 
 rules for the interpretation of specialties prevail, the sealed 
 contract by agent must, to hold the principal, be expressed 
 with a precision not indispensable in simple promises. If, on 
 its face, the words of covenant, giant, or the like are the 
 agent's, and the seal purports to be his, it will bind him per- 
 sonally, though he describes himself therein as agent, and 
 adds the word " agent " to his signature ; and it will not bind 
 the principal. To have the latter effect, the covenants must 
 be in terms the principal's, and the seal must purport to be 
 his ; and then the agent will be free.^ The decisions in our 
 States differ so much as to render it impossible to say how 
 far in any of them this rule may be departed from and leave 
 the covenants the principal's. An apparent relaxation in one 
 or more of the States is, that, wherever the intention is mani- 
 fest on the whole instrument to bind the principal rather 
 than the agent, it will be deemed the former's deed though 
 signed by the latter in his own name.^ Not inconsistently 
 herewith we have, from other States, a refusal to apply to 
 specialties the rule familiar in simple contracts,^ that an un- 
 disclosed principal may appear in court as party to an agree- 
 ment made by an agent in his own name in the former's 
 behalf; so that the covenants are simply and only the agent's.* 
 The formal words of attestation are construed in connection 
 Avith those in the body of the instrument, sometimes changing 
 what otherwise would be its effect. 
 
 § 1071. Form of Execution. — The execution should be in 
 
 1 Berkeley v. Hardy, 8 D. & B. 102, &c. Co. 32 Cal. 639 ; Huntington v. 
 
 5 B. & C. 355; Appieton v. Binks, 5 Knox, 7 Cush. 371, 374. But see Rogers 
 East, 148; Carter v. Chaudron, 21 Ala. v. Bracken, 15 Texas, 564; Rogers v. 
 72; Echols v. Cheney, 28 Cal. 157; Frost, 14 Texas, 267. 
 
 Morrison v. Bowman, 29 Cal. 337 ; Bo- ^ Purinton v. Security Life Ins. &c. 
 
 gart V. De Bussy, 6 Johns. 94 ; Locke v. Co. 72 Maine, 22, following Nobleboro 
 
 Alexander, I Hawks, 412 ; The State v. v. Clark, 68 Maine, 87. Compare with 
 
 Jennings, 5 Eng. 428 ; Parmer v. Res- Bryson v. Lucas, 84 N. C. 680 ; Mc- 
 
 pass, 5 T. B. Monr. 562 ; Pryor v. Coul- Clure v. Herring, 70 Misso. 18. And 
 
 ter, 1 Bailey, 517; Barger v. Miller, 4 see Hypes v. Griffin, 89 111. 134. 
 Wash. C. C. 280; Redmond v. Coffin, 2 » Post, § 1079. 
 
 Dev. Eq. 437 ; Grubbs v. Wiley, 9 Sm. * Briggs v. Partridge, 64 N. Y. 357, 
 
 6 M. 29 ; Martin v. Flowers, 8 Leigh, 365 ; ante, § 426. 
 158 ; Love v. Sierra Nevada Lake Water, 
 
 427 
 
§ 1074 PARTIES AND OTHER PARTAKERS. [BOOK II. 
 
 the principal's name, not the agent's.^ " It is not material," 
 says Metcalf, " by what form of words such execution is de- 
 noted ; whether it be ' for A B, C D,' or ' A B by C D his 
 attorney,' or ' C D attorney for A B.' " ^ And, in strict law, 
 it is sufficient for the agent to affix the principal's name and 
 seal, or probably the seal alone,^ without writing his own 
 name,* — a form which, in practice, ought to be avoided. 
 And for practical reasons, not from legal necessity, the agent 
 should write his name in full. 
 
 § 1072. Secondly. Simple Contracts both Oral and Writ- 
 ten : — 
 
 After Manner of Specialties — (Exceptions). — The safe and 
 orderly way both of constructing and of executing a simple 
 contract in writing, by the agent, is to adopt the forms ap- 
 proved in specialties, omitting what pertains to the seal. 
 There are believed to be no exceptions to the rule that this 
 will be safe and effectual. But if parties do not choose this 
 way, their purpose will sometimes take effect through other 
 steps. As written and oral simple contracts are of one grade, 
 and differ only in their manner of proof,^ we shall in this sub- 
 title consider them together. Many of them have an effect 
 derived from — 
 
 § 1073. Commercial Usage. — " The law of merchants is 
 part of the law of the land."^ Much of it is S)f modern 
 growth. In general, it regards the substance of a transaction 
 rather than its formalities. Combining with principles about 
 to be stated, not all of which are applicable to sealed instru- 
 ments, it has, step by step, proceeded to the establishment of 
 rules quite unlike those which govern them, for all contracts, 
 whether oral or written, not under seal. Thus, — 
 
 § 1074. The Principles. — 1. All acquisitions which an agent 
 
 1 White i: Cnyler, 6 T. R. 176. ler, 6 B. Monr. 612; Eckhart v. Eeidel, 
 
 2 Met. Con. 105, referring to Combes's 16 Texas, 62. 
 Case, 9 Co. 75 a, 76 ; Willis v. Back, 2 8 Ante, § 112. 
 
 East, 142 ; Elwell v. Shaw, 16 Mass. 42, * Devinney v. Reynolds, 1 Watts & 
 
 1 Greenl. 339 ; Fowler v. Shearer, 7 S. 328 ; Berkey v. Jildd, 22 Minn. 287, 
 
 Mass. 14 ; Brinley v. Mann, 2 Cush. 337 ; 302. 
 
 Mussey v. Scott, 7 Cush. 215; Jones v. « Ante, § 26, 27, 153-159. 
 
 Carter, 4 Hen. & Munf. 184; Wilburn « Lord Kenyon in Harrison v. Jack- 
 
 V. Larkin, 3 Blackf. 55 ; Hunter v. Mil- son, 7 T. R. 207, 210. 
 
 428 
 
CHAP. XL.] CONTRACTS THROUGH AGENTS. § 1075 
 
 makes in his agency, beyond his compensation, belong to the 
 principal.^ Hence, — 
 
 2. Whenever the agent, acting in his agency, obtains a con- 
 tract, though in his own name, such contract becomes, like 
 any other acquisition, virtually the principal's.^ 
 
 3. While, on the one hand, a principal may thus take the 
 avails of a contract made by his agent, though in the agent's 
 name ; he must also, on the other hand, bear its burdens, 
 being responsible for the agent's acts.^ 
 
 4. A legal interest carries with it the right to maintain a 
 suit at law for its vindication or enforcement.* 
 
 5. A written contract cannot be contradicted by oral 
 evidence.^ 
 
 From these propositions we derive the following results : — 
 § 1075. Who sue and be sued. — If A and B are principals, 
 and X is the agent of A, and Y the agent of B, — then, if X 
 and Y, each acting in his agency, but not disclosing it to the 
 other, make a contract, whether oral or written, each is 
 holden to the other ; for so each understood it, and such are 
 its terms. But the law has vested in A the apparent interest 
 of X, and in B the apparent interest of Y ; therefore, also, A 
 is holden to B, and B is holden to A ; for such is the legal 
 effect of the transaction. Still further, each principal may 
 stand, if he chooses, or be placed, if the other chooses, in the 
 shoes of his agent ; so that A may sue either B or Y, and B 
 may sue either A or X. Again, X, if his principal does not 
 interfere, may sue either B or Y ; and Y, if his principal 
 does not object, may sue either A or X. Other deduc- 
 tions will appear further on ; but we shall first proceed to 
 some propositions established by the courts, within these 
 deductions. 
 
 1 Ante, § 740 ; Laflerty v. Jelley, 22 ^ East India Co. v. Hensley, 1 Bsp. 
 Ind. 471; Denson v. Stewart, 15 La. 112; Elwell v. Chamberlin, 31 N. Y. 
 An. 456 ; McMurry v. Mobley, 39 Ark. 611. 
 
 309. * Heald v. Warren, 22 Vt. 409 ; 
 
 2 Messier v. Amery, 1 Yeates, 533 ; Townsend v. Townsend, 5 Barring. Del. 
 Von Hurter v. Spengeman, 2 C. E. 127. And see Stoddard v. Mix, 14 
 Green, 185 ; Audenried v. Betteley, 8 Conn. 12. 
 
 Allen, 302; Damon v. Osborn, 1 Pick. ' Ante, § 169. 
 476, 481. 
 
 429 
 
§1078 
 
 PARTIES AND OTHER PARTAKERS. [BOOK II. 
 
 § 1076. Agent holden when no apparent Principal. — The 
 agent of a principal who resides abroad,* and any agent who 
 does not disclose his agency, or who mentions it in mere gen- 
 eral terms but does not name his principal,^ will, in the 
 absence of any contrary showing, be bound as on his own 
 personal contract. Or, — 
 
 § 1077. Agent contracting in Own Name holden. — ConiT 
 monly, and when nothing to the contrary appears,^ should 
 the agent execute a written contract in his own name, he 
 will be bound by its terms, if adequate, though he is known 
 to be acting as agent ; and the mere appending of the word 
 " agent " to his signature will not save him.* But, — 
 
 § 1078. Not Holden. — If the instrument itself declares 
 that those executing it are not to be responsible, — for ex- 
 ample, if its words are " We as trustees but not individually 
 
 1 Elbinger Actien - Gesellschaft v. 
 Claye, Law Eep. 8 Q. B. 313; Arm- 
 strong V. Stokes, Law Rep. 7 Q. B. 598, 
 605. The foreign principal and not the 
 domestic agent will be bound, where 
 such appears to have been the intention. 
 Rogers «. March, 33 Maine, 106 ; Bray 
 ti. Kettell, 1 Allen, 80. See, also, Hut- 
 ton V. Bulloch, Law Rep. 8 Q. B. 331, 9 
 Q. B. 572. 
 
 2 Merrill i-. "Wilson, 6 Ind. 426 ; 
 Wheeler v. Reed, 36 111. 81 ; Pierce v. 
 Johnson, 34 Conn. 274 ; Mithoff v. 
 Byrne, 20 La. An. 363 ; McClellan 
 V. Parker, 27 Misso. 162 ; McComb v. 
 Wright, 4 Johns. Ch. 659 ; Forney v. 
 Shipp, 4 Jones, N. C. 527 ; Meyer v. 
 Barker, 6 Binn. 228 ; Davenport v. Riley, 
 2 McCord, 198 ; Conyers v. Magrath, 
 4 McCord, 392; Bacon v. Sondley, 3 
 Strob. 542 ; Royce v. Allen, 28 Vt. 234 ; 
 Baldwin v. Leonard, 39 Vt. 260 ; But- 
 ton V. Winslow, 53 Vt. 430 ; Merrill v. 
 Kenyon, 48 Conn. 314 ; Irvine v. Wat- 
 son,"5 Q. B. D. 102. 
 
 8 Post, § 1078, 1079, 1082. 
 
 * Higgins V. Senior, 8 M. & W. 834 ; 
 Sayre r. Nichols, 5 Cal. 487 ; Hall i: 
 Cockrell, 28 Ala. 507 ; Andrews v. Al- 
 len, 4 Harring. Del. 452; Bickford v. 
 Pirst National Bank, 42 111. 238 ; Dem- 
 
 430 
 
 ing V. Bullitt, 1 Blackf. 241 ; Wiley v. 
 Shank, 4 Blackf. 420 ; Crura v. Boyd, 
 9 Ind. 289 ; Scott v. Messick, 4 T. B. 
 Monr. 535 ; McBean v. Morrison, 1 A. 
 K. Mar. 543 ; Nugent v. Hickey, 2 La. 
 An. 358 ; Forster v. Fuller, 6 Mass. 58 ; 
 Thacher v. Dinsmore, 5 Mass. 299; 
 Sumner v. Williams, 8 Mass. 162; 
 Whiting V. Dewey, 15 Pick. 428; Hast- 
 ings V. Lovering, 2 Pick. 214 ; Stack- 
 pole V. Arnold, 11 Mass. 27 ; Mayhew v. 
 Prince, 1 1 Mass. 54 ; Arfridson v. Ladd, 
 12 Mass. 173 ; Seaver v. Coburn, 10 
 Cush. 324 ; Bass v. Randall, 1 Minn. 
 404; Rollins v. Phelps, 5 Minn. 463; 
 Bingham v. Stewart, 13 Minn. 106; 
 Pratt V. Beaupre, 13 Minn. 187 ; Chou- 
 teau V. Paul, 3 Misso. 260 ; Sheldon v. 
 Dunlap, 1 Harrison, 245 ; Stone v. 
 Wood, 7 Cow. 453 ; Bank of Rochester 
 V. Monteath, 1 Denio, 402 ; Cabre v. 
 Sturges, 1 Hilton, 1 60 ; Blakeraan v. 
 Mackay, 1 Hilton, 266 ; Collins v. Buck- 
 eye Ins. Co. 17 Ohio State, 215; Fash 
 V. Ross, 2 Hill, S. C. 294 ; Hodges v. 
 Green, 28 Vt. 358; Allen u.Pegram, 16 
 Iowa, 163; Steele v. McEIroy, 1 Sneed, 
 Tenn. 341 ; McWilliams v. Willis, 1 
 Wash. Va. 199; Nixon ». Downey, 49 
 Iowa, 166 ; Tilden v. Barnard, 43 Mich. 
 376 ; Long v. Millar, 4 C. P. D. 450. 
 
CHAP. XL.] CONTEACTS THROUGH AGENTS. § 1079 
 
 promise," &c., and persons sign it adding " trustees " to their 
 names,^ — the law will not make them parties, whatever it 
 decides as to the liability of the principal. Beyond this, not 
 only will the agent not be holden where the instrument and 
 its execution are such that he would not be were it under 
 seal ; ^ but likewise, where evidently on the entire face of it 
 he was understood as acting merely for his principal,^ he 
 incurs no personal responsibility, yet the principal will be 
 bound as party.* 
 
 § 1079. Principal holden — (Agent also). — If, in a particu- 
 lar case, the agent is liable, or if the principal is, it does not 
 follow that the other is not ; while yet, in various circum- 
 stances, the casting of the responsibility on the one will 
 exempt the other. Where the agency and the personality of 
 the principal are known when the contract is made, it will 
 not bind both principal and agent, because then is the time 
 for the other contracting party to elect between them.^ But 
 if such party is not then aware that he is dealing with an 
 agent, or if the agent declines to name the principal, he may, 
 on learning the facts, hold, should he choose, the latter as the 
 party.® " For it is a general rule, that, whenever an express 
 
 1 Shoe and Leather National Bank v. Rogers v. March, 33 Maine, 106 ; Bank 
 Dix, 123 Mass. 148 ; Wake v. Harrop, of Cape Fear v. Wright, 3 Jones, N. C. 
 6 H. & N. 768, 1 H. & C. 202, 7 Jar. 376 ; Abbott v. Cobb, 17 Vt. 593 ; Mc- . 
 N. s. 710. Gee v. Larramore, 50 Misso. 425, 427. 
 
 2 Ante, § 1070, 1071 ; King w. Handy, * Lyon v. Williams, 5 Gray, 557; 
 2 Bradw. 212; Weaver v. Carnall, 35 Cook v. Gray, 133 Mass. 106. 
 
 Ark. 198. ' Post, § 1085; Coxe v. Devine, 5 
 
 * McCall V. Clayton, Busbee, 422; Harring. Del. 375; Paterson v. Ganda- 
 
 Smith V. Alexander, 31 Misso. 193; sequi, 15 East, 62; Silver v. Jordan, 136 
 
 Detroit v. Jackson, 1 Doug. Mich. 106 ; Mass. 319. 
 
 Many v. Beekman Iron Co. 9 Paige, ^ Thomson v. Davenport, 9 B. & C. 
 
 188; Traynham v. Jackson, 15 Texas, 78, 2 Smith, Lead. Cas. 212, and see 
 
 170; Eastern Railroad v. Benedict, 5 Mr. Smith's note; Raymond a. Crown 
 
 Gray, 561 ; Sayre D.Nichols, 7 Cal. 535 ; and Eagle Mills, 2 Mot. 319 ; French v. 
 
 Seery v. Socks, 29 111. 313 ; Ogden v. Price, 24 Pick. 13 ; Violett v. Powell, 
 
 Raymond, 22 Conn. 379; Baker v. 10 B. Monr. 347; Hubbert r. Borden, 6 
 
 Chambles, 4 Greene, Iowa, 428 ; Tuttle Whart. 79 ; Higgins v. Senior, 8 M. & 
 
 V. Ayres, 2 Penning. C82 ; Shotwell v. W. 834 ; Beckham v. Drake, 9 M. & W. 
 
 McKown, 2 Southard, 828 ; Rathbon 79 ; Briggs v. Partridge, 64 N. Y. 357 ; 
 
 V. Budlong, 15 Johns. 1 ; Meadows v. JesSup ji. Steurer, 75 N. Y. 613 ; Yongh- 
 
 Smith, 12 Ire. 18; Powell v. Finch, 5 iogheny Iron, &c. Co. v. Smith, 16 
 
 Yerg. 446; Hall v. Huntoon, 17 Vt. Smith, Pa. 340. 
 244 ; Harkins v. Edwards, 1 Iowa, 426 ; 
 
 431 
 
§ 1082 PARTIES AND OTHER PARTAKERS. [BOOK 11. 
 
 contract is made, an action is maintainable upon it, either in 
 the name of the person with whom it was actually made, or 
 in the name of the person with whom, in point of law, it was 
 made." ^ On the other hand, — 
 
 § 1080. Principal sue on Agent's Contract. — The principal 
 can, if he chooses, maintain an action in his own name on a 
 contract, either oral or written, which thus, he being un- 
 known, liis agent has personally in the agent's name made 
 for him ; and there is some reason, while also there is some 
 authority, for saying that this is so even though he was 
 known to the other contractiug party at the making of the 
 contract.^ For example, an undisclosed principal may sue on 
 a promissory note payable to the agent, subject to the equi- 
 ties arising from the transaction.® Or if the agent of an 
 undisclosed principal makes a lease not under seal of the'lat- 
 ter's real estate, the principal maj"^ sue for the rent in his own 
 name.* But — 
 
 § 1081. Agent sue. — The agent also, if the principal does 
 not interfere, may in his own name sue on a contract which, 
 by its terms, is his own. Yet not on one which, though made 
 by him, runs in the name of his principal.^ 
 
 § 1082. How bind Known Principal. — The forms of con- 
 tracting which will bind a known principal already in a meas- 
 ure appear. Those sufficing in a specialty ® are adequate in a 
 simple contract. And the further rule is, that, whenever, on 
 
 1 Cothay v. Fennell, 10 B. & C. 671, In re Merrick's Estate, 2 Ashm. 485; 
 672. Huntington v. Knox, 7 Cush. 371 ; Gil- 
 
 2 Brooks V. Minturn, 1 Cal. 481 ; pin v. Howell, 5 Barr, 41 ; Baltimore 
 Eastern Railroad v. Benedict, 5 Gray, Coal Tar, &c. Co. v. Fletcher, 61 Md. 
 561 ; Maohias Hotel v. Coyle, 35 Maine, 288. 
 
 405 ; Barry v. Page, 10 Gray, 398 ; Ford » Nave v. Hadley, 74 Ind. 155. 
 V. Williams, 21 How. U. S. 287; New * Bryant v. Wells, 56 N. H. 152. 
 Jersey Steam Navigation Co. v. Mer- ' Colburn v. Phillips, 13 Gray, 64; 
 chants Bank, 6 How. U. S. 344, 381 ; Sharp v. Jones, 18 Ind. 314; Ackerman 
 Ruiz U.Norton, 4 Cal. 355; Woodruff v. Cook, 34 Missis. 262; Crosby v. 
 !■. McGehee, 30 Ga. 158 ; Oelrichs v. Watkins, 12 Cal. 85 ; Devers ii. Beck- 
 Ford, 21 Md. 489 ; Ames v. St. Paul, nell, 1 Misso. 333 ; Gnnn v. Cantine, 10 
 &c. Railroad, 12 Minn. 412; Elkins v. Johns. 387; Brackney v. Shreve, Coxe, 
 Boston, &c. Railroad, 19 N. H. 337; 33; Coggbum v. Simpson, 22 Misso. 
 TaintOT v. Prendergast, 3 Hill, N. Y. 351 ; Doe v. Thompson, 2 Fost. N. H. 
 72 ; Van Lien v. Byrnes, 1 Hilton, 133 ; 217. 
 Erickson v. Compton, 6 How. Pr. 471 ; ° Ante, § 1070, 1071. 
 432 
 
CHAP. XL.] CONTRACTS THROUGH AGENTS. § 1083 
 
 the whole writing, illumined by its surroundings,^ the intent^ 
 is manifest to make the principal a party, no inaccuracy in 
 the language^ will defeat this construction, but the court 
 will hold him to be such ; * or, by the same rule, it will hold 
 him not to be such.^ Express terms cannot be contradicted 
 to show that the contract is between other parties than it 
 purports to be.® But, where its words are silent, there is no 
 contradiction of them in the proof that one of the parties was 
 agent for a third and was acting in the agency ; '' and, where 
 this fact appears in the writing, it is still more effective. 
 The " rule " as to which is, that, to quote from a learned 
 judge, " when a person contracts as the agent of another, and 
 the fact of his agency is known to the person with whom he 
 contracts, the principal alone, and not the agent, is respon- 
 sible," 8 — a rule which evidently requires the qualifications 
 appearing in the foregoing sections. The cases on this ques- 
 tion are in a degree inharmonious ; but, to illustrate, a note 
 signed " J. A. Robson, agent for his wife," has been held to 
 bind the wife.^ And the simple signature to a contract, " A, 
 agent," by a husband known to be acting for his wife, was 
 given the same interpretation.^" A memorandum running, 
 " If the Marsh harvester don't work to his satisfaction, he, 
 W. Thom, can return the machine to me, and I will return 
 his notes for the same. A. M. Schnell, agent," was adjudged 
 to be " open to proof that it was the intention to bind his 
 principal and not himself." ^^ And, — 
 
 § 1083. Cashier — Treasurer. — By custom probably univer- 
 sal, if the cashier of a bank, or the treasurer of any other 
 corporation dealing in commercial paper, indorses its bill or 
 note "A, cashier," or "A, treasurer," the indorsement is not 
 
 1 Ante, § 372-376. Thom, supra ; Mechanics Bank v. Bank 
 
 " Ante, § 380-382. of Columbia, 5 Wheat. 326. 
 
 » Ante, § 383. 8 Miller, J., in Bonynge v. Field, 81 
 
 4 Deering v. Thom, 29 Minn. 120. N. Y. 159, 160. 
 
 6 Steamship Bulgarian Co. v. Mer- ^ Eawlings v. Kobson, 70 Ga. 595. 
 
 chants Desp. Transp. Co. 135 Mass. i" Byington v. Simpson, 134 Mass. 
 
 421. 169. 
 
 » Bryan v. Brazil, 52 Iowa, 350. '^ Deering v. Thom, 29 Minn. 120, 
 
 'Post, §108,3, 1084; Higgins v. 121. And see Lacy u. Dubuque Lum- 
 
 Senior, 8 M. & W. 834 ; Deering v. ber Co. 43 Iowa, 510. 
 28 438 
 
§ 1085 PARTIES AND OTHER PARTAKERS. [bOOK II. 
 
 personally A's, but the corporation's ; or, if a bill or note is 
 made payable to A, with the title of his office thus added,, 
 it becomes the corporation's, not his own.^ Even, within this 
 doctrine, if A does not add the name of his office, its omission 
 may be supplied by intrinsic or extrinsic evidence.^ 
 
 § 1084. Express Words — (Parol Evidence). — It should be 
 constantly borne in mind, what perhaps alreadj' sufficiently 
 appears, that express terms in a contract will govern the par- 
 ticular case to the exclusion of the foregoing general deduc- 
 tions. Nor can parol evidence control them. Still, as just 
 stated,^ it is no contradiction of a contract which is silent as 
 to the fact, to prove that a party is acting therein, not on his 
 own behalf, but for another. This " does not deny," said 
 Parke, B., " that it is binding on those whom, on the face of 
 it, it purports to bind ; * but shows that it also binds another, 
 by reason that the act of the agent, in signing the agreement, 
 in pursuance of his authority, is in law the act of the princi- 
 pal." ® Yet where, in a charter-party, the agent declared 
 himself to be the " owner " of the vessel, the court held that 
 parol evidence was not admissible to prove this . declaration 
 false, and so let in the true owner, being the real principal, 
 to be the party to a suit.® 
 
 § 1085. Election — (Not both). — In those cases where 
 either the principal or the agent may be made the party, 
 both cannot be, but those in interest will choose between the 
 two.^ The principal and agent are neither joint nor several 
 contractors, nor is the one a surety for the other ; the agent 
 is the party in fact, the principal is the party in law. There- 
 fore, when, knowing all, the party entitled to elect has made his 
 
 1 Nave V. Lebanon Bank, 87 Ind. Columbia, 5 Wheat. 326 ; Merchants 
 
 204 ; First Nat. Bank v. Hall, 44 N. Y. Bank v. Central Bank, 1 Ga. 418. 
 
 395 ; Hypes v. Griffin, 89 Dl. 134 ; Hy- » Ante, § 1082. 
 
 mer v. Ijams, 56 Md. 470; State Bank * That such evidence would not be 
 
 V. Fox, 3 Blatch. 431 ; Kobb v. Boss accepted, see Hypes v. Griffin, 89 111. 
 
 County Bank, 41 Barb. 586; Bank of 134. 
 
 Genesee v. Patchin Bank, 3 Kernan, ^ Higgins v. Senior, 8 M. & W. 834, 
 
 309. 844. ' 
 
 '■> Bank of Utica v. Magher, 18 6 Humble v. Hunter, 12 Q. B. 310, 
 
 Johns. 341 ; Mechanics Bank v. Bank of 316. 
 
 7 
 
 434 
 
 Ante, § 1079-1081. 
 
CHAP. XL.] CONTRACTS THROUGH AGENTS. § 1088 
 
 choice, he is bound by it ; ^ and he cannot proceed either 
 jointly or severally against both, or, discontinuing proceed- 
 ings against one, hold the other.^ Still, — 
 
 § 1086. Custom of a Trade. — " By the custom of the par- 
 ticular trade," observes Pollock, " the agent may be treated 
 as a contracting party, and personally bound, as well as his 
 principal." ^ 
 
 § 1087. Third Persons. — The foregoing general doctrines 
 yield when interfering with the legal or equitable rights of 
 any persons. Though the principal sues or is sued in his 
 own name, third persons, the agents, and the parties will 
 have their just claims, whether legal or equitable, respected, 
 — too numerous to be here particularized.* 
 
 § 1088. Joint Agency — (Several). — An agency conferred 
 on two or more persons, whether in terms " joint " or not, is, 
 in the absence of words or circumstances showing the con- 
 trary, a joint agency. And it can be exercised only by all 
 combining, not by one or any number less than all.^ Even if 
 one becomes disabled, or if he dies, no further act in the 
 agency can be performed ; therefore, where it is not coupled 
 with an interest in the survivor,® it is now terminated.'^ But 
 
 1 Ante, §783, 784, Powell, 10 B. Monr. 347; Bumham 
 
 2 Smith Con. 2d Eng. ed. 320 et seq., v. Holt, 14 N. H. 367 ; Kelley v. Mun- 
 and cases there cited; namely, Paterson son, 7 Mass. 319; Kingman v. Pierce, 
 V. Gandaseqni, 15 East, 62; Addison v. 17 Mass. 247; Merrill ti. Bank of Nor- 
 Gandassequi, 4 Taunt. 574; Thomson folk, 19 Pick. 32; Selkirk v. Cobb, 13 
 «. Davenport, 9 B. & C. 78. The facts Gray, 313; Erazier v. Erie Bank, 8 
 of these cases do not cover all the ground Watts & S. 18; Hall t>. Williams, 27 
 of the propositions in the text, which I Vt. 405. 
 
 have purposely made as broad as the ^ Copeland v. Mercantile Ins. Co. 6 
 
 principle on which they rest. Pick. 198, 202, 203 ; Wilder v. Kanney, 
 
 3 Pollock Con. 431, referring to 95 N. Y. 7; Brennan v. Willson, 71 
 Humfrey v. Dale, 7 Ellis & B. 266; N. Y. 502, 507; Green v. Miller, 6 
 Dale V. Humfrey, Ellis, B. & E. 1004 ; Johns. 39 ; First Parish in Sutton v. 
 Fleet V. Murton, Law Eep. 7 Q. B. 126, Cole, 3 Pick. 232, 244; Kupfer v. South 
 129; and Hutchinson v. Tatham, Law Parish, 12 Mass. 185; Rollins i'. Phelps, 
 Eep. 8 C. P. 482. . 5 Minn. 463; Jewett v. Alton, 7 N. H., 
 
 * In re Merrick's Estate, 2 Ashm. 253 ; Johnston v. Bingham, 9 Watts & 
 
 485 ; Foster v. Smith, 2 Coldw. 474 ; S. 56 ; Low v. Perkins, 10 Vt. 532. 
 Waring v. Favenck, 1 Camp. 85 ; Kymer ^ Ante, § 1051-1054. 
 V. Suwercropp, 1 Camp. 109; Thomson ' Co. Lit. 181 b; Salisbury v. Bris- 
 
 V. Davenport, 9 B. & C. 78; Smyth v. bane, 61 N. Y. 617. 
 Anderson, 7 C. B. 21, 39; Violett v. 
 
 435 
 
§ 1090 PARTIES AND OTHEE PABTAKBRS. [BOOK II. 
 
 an agency, unlike an interest in an estate, may be joint and 
 several if it is the will of its creator to make it so ; ^ and 
 then the execution may be by one or by all, yet not by more 
 than one and less than all.^ Still, — 
 
 § 1089. Except. — These rules will give way whenever, and 
 as far as, the evident intent of the principal or the nature of 
 the case indicates what is different. Thus where, by a power 
 of attorney, one constituted fifteen persons named his " attor- 
 neys jointly and separately " to do such things as " they his 
 said attorneys, or any of them, should jointly and separately 
 think proper," an execution by four was held to satisfy the 
 special terms.^ So, if a will vests personalty (not land) in 
 two executors, with directions to sell it, a sale by one will be 
 good ; " because one executor, or one trustee, may dispose of 
 personal property to a bona fide purchaser without the con- 
 sent of the other." * Or, since it is the course of business for 
 partners to act by one of them, if an agency is given to two 
 in their partnership name, its execution by one will be good.^ 
 And if on two persons, by separate instruments, is conferred 
 the same agency, either may perform alone.^ Again, " if the 
 sheriff, upon a capias directed to him, make a warrant to four 
 or three jointly or severally to arrest the defendant, two of 
 them may arrest him ; because it is for the execution of jus- 
 tice, which is pro bono publico.^' ^ And the doctrine is gen- 
 eral, that an agency in the public interest may be carried out 
 by the majority,^ or the majority of those acting at a lawful 
 meeting.® 
 
 § 1090. Concerning the Authorities. — On the subject of 
 
 1 Slingsby's Case, 5 Co. 18 6. » Cnshman v. Glover, H 111. 600. 
 
 2 Ante, § 870; Story Agency, §42, ^ Co. Lit. 1816. 
 
 referring to Co. Lit. 1816; Com. Dig. ' Story Agency, §42, note; John- 
 Attorney, C. 11; 2 Rol. Abr. Feoff- son v. Smith, 21 Conn. 627; Rex v. 
 ment, p. 8, R. 1. 40; Bac. Abr. Au- Beeston, 3 T. R. 592; Worcester v. 
 thority, C ; Guthrie v. Armstrong, 5 B. Railroad Commissioners, 113 Mass. 161 ; 
 & Aid. 628. Reynolds v. New Salem, 6 Met. 340 ; 
 
 ' Guthrie v. Armstrong, supra. Williams v. School District, 21 Pick. 75 ; 
 
 * Wilder v. Ranney, 95 N. Y. 7, 12, Sprague v. Bailey, 19 Pick. 436 ; Green 
 
 opinion by Earl, J. v. Miller, 6 Johns. 39, 41. 
 
 6 Gordon v. Buchanan, 5 Yerg. 71. ' Damon v. Granby, 2 Pick. 345. 
 
 And see Purinton v. Security Life Ins. 
 &c. Co. 72 Maine, 22. 
 
 436 
 
CHAP. XL.] CONTRACTS THROUGH AGENTS. § 1092 
 
 this sub-title, there is some difference between the earlier and 
 later decisions ; and, even among the later, some real or ap- 
 parent conflict. While, therefore, the foregoing doctrines 
 are all well established, at least in the modern law, there may 
 be found dicta, and perhaps adjudications, contrary to some 
 of them, or qualifying them. Possibly slight qualifications, 
 at one or two points, may properly be admissible ; yet none of 
 much importance. A minuter delineation would not accord 
 with the plan of this work 
 
 VII. Unauthorized Contracts and their Ratification. 
 
 § 1091. Authorization in Pact — By Estoppel. — The agent's 
 authorization in fact is the sort chiefly spoken of thus far in 
 this chapter. There is another form, equally effective and 
 even more common ; namely, by estoppel, — a doctrine^ widely 
 applicable in the law of agency. By reason whereof one 
 who, in respect of another, so conducts himself or his business 
 that third persons are entitled to deem the other his agent, 
 with powers extending to a matter in question, is, as to third 
 persons dealing with the supposed agent, estopped to deny 
 the agency ; in other words, is bound by his seemingly au- 
 thorized act, the same as though the authority were real.^ 
 The distinction between these two authorizations is, in the 
 books, indicated in a general way, but not with absolute pre- 
 cision, by dividing agencies into — 
 
 § 1092. General and Special. — It is not easy to draw, by a 
 definition, the exact line distinguishing general and special 
 agents. Practically a special agent may be defined as one 
 appointed for a specific purpose, or to do a single act or series 
 of acts, with no powers open to implication ; and a general 
 agent, as one appointed, or by the principal held out, to con- 
 duct all his business, or a particular business, or to act gen- 
 erally for him in a particular matter .^ 
 
 > Ante, § 264 et seq. the whole, I do not see that it can be 
 
 ' Ante, § 288. improved. Story's defining is a little 
 
 ' This statement of the distinction different; namely, "A special agency 
 
 may be open to some criticism ; but, on properly exists, when there is a delega- 
 
 437 
 
§ 1096 
 
 PARTIES AND OTHER PARTAKERS. 
 
 [book II. 
 
 § 1093. Order of Discussion. — We shall consider, First, 
 The Special Agent ; Secondly, The General Agent; Thirdly, 
 The Ratification of Unauthorized Acts of Agency. 
 
 §1094. First. The Special Agent ; — 
 
 Adhere to Authority. — The special agent binds his princi- 
 pal only when, or as far as, he pursues exactly the authority 
 conferred ; ^ " although," adds Story, " a circumstantial vari- 
 ance in its execution will not defeat it." ^ For example, a 
 power to sell, at once, for a specified sum, cannot be executed 
 after the lapse of a month ; ^ to sell " for ready money," is 
 not satisfied by a sale on credit ; * for a fixed price, will not 
 make good a sale at a different price.^ One, therefore, deal- 
 ing with a special agent, should inquire into his authorization ; 
 because any contract with him, not covered by it, is invalid.® 
 
 § 1095. Exceeding Authority. — The agent's doing more 
 than he is authorized will not vitiate what is properly done, 
 if the two are separable ; otherwise, it will.'^ Thus, — 
 
 § 1096. Seal or not. — Within explanations already given,^ 
 
 tion of authority to do a single act ; a 
 general agency properly exists, where 
 there is a delegation to do all acts con- 
 nected with a particular trade, business, 
 or employment." Story Agency, § 17. 
 Consult also Matthews v. Sowle, 12 Neb. 
 398 ; Patterson v. Ackerson, 2 Edw. 427 ; 
 Irions V. Cook, 1 1 Ire. 203 ; Loudon, &c. 
 Soc. V. Hagerstown, &c. Bank, 12 Casey, 
 Pa. 498 ; Andrews v. Kneeland, 6 Cow. 
 354, 357, 358; Odiome v. Maxcy, 13 
 Mass. 178, 181 ; 'Williams v. Mitchell, 
 17 Mass. 98, 100. Story refers to Parker 
 ». Kett, 1 Salk. 95, 96 ; Whitehead v. 
 Tuckett, 15 East, 400, 408; Anderson 
 V. Coonley, 21 Wend. 279 ; Tomlinson 
 V. GoUett, 3 Blackf. 436; and Walker 
 V. Skipwith, Meigs, 502. 
 
 1 Baxter v. Lament, 60 111. 237; 
 Towie 17. Leavitt, 3 Fost. N. H. 360; 
 Batty V. Carswell, 2 Johns. 48 ; Allen v. 
 Ogden, 1 Wash. C. C. 174; Nixon v. 
 Hyserott, 5 Johns. 58 ; Angel v. Pow- 
 nal, 3 Vt. 461, 463 ; McConnell ». Bow- 
 dry, 4 T. B. Monr. 392 ; Rawson v. 
 Curtiss, 19 111. 456; Hay den v. Middle- 
 sex Turnpike, 10 Mass. 397, 403 ; Ad- 
 
 438 
 
 ams V. Bourne, 9 Gray, 100 ; Howard 
 V. Braithwaite, 1 Ves. & B. 202 ; Cal- 
 land V. Loyd, 6 M. & W. 26; Under- 
 wood V. NichoUs, 17 C. B. 239; An- 
 drews V. Kneeland, 6 Cow. 354, 357. 
 
 2 Story Agency, § 165 ; Boykin »• 
 McLauchlin, 35 Ala. 286 ; Heming- 
 way V. Stansell, 106 U. S. 399. 
 
 8 Matthews v. Sowle, 12 Neb. 398. 
 
 * Cox V. Palmer, 60 Missis. 793. 
 
 ' National Iron Armor Co. v. Bru- 
 ner, 4 C. E. Green, 331 ; Anonymous, 
 cited 15 East, 407. And see Adams v. 
 Flanagan, 36 Vt. 400 ; Hopkins v. Blane, 
 
 I Call, 361 ; Blane v. Proudfit, 3 Call, 207 ; 
 Whitehead v. Tuckett, 15 East, 400. 
 
 ^ Silliman v. Fredericksburg, &o. 
 Bailroad, 27 Grat. 119; Wooding v. 
 Bradley, 76 Va. 614 ; Strawn v. O'Hara, 
 86 111. 53; Campbell v. Sherman, 49 
 Mich. 534. 
 
 ' Story Agency, § 166; Drnmright 
 V. Philpot, 16 Ga. 424 ; Crozier v. Carr, 
 
 I I Texas, 376 ; Moore v. Thompson, 32 
 Maine, 497 ; Jesnp u. City Bank, 14 
 Wis. 331. 
 
 8 Ante, § 1045, 1046. 
 
CHAP. XL.] CONTRACTS THROUGH AGENTS. § 1100 
 
 an unsealed authority will not qualify the agent to execute 
 a sealed instrument ; but, if he does it, the seal only, which 
 is separable from the rest, is void, and the writing will take 
 effect as a simple contract.^ Again, — 
 
 § 1097. Authorized Sale and Unauthorized Covenants. — If 
 an agent makes an authorized sale, but adds unauthorized 
 covenants, the former will bind the principal, the latter not. 
 Still, as the purchaser can be compelled only to what he 
 agreed, he has his election either, if the principal will not 
 ratify the covenants, to affirm the sale without them or to 
 reject the whole.'^ On the other hand, — 
 
 § 1098. Unauthorized Credit. — A purchase of goods and an 
 actual or agreed payment for them are inseparable ; so that, 
 as explained in another connection,^ if a special agent to buy 
 them is provided with the money, but, contrary to instruc- 
 tions, he pledges his principal's credit for them, the latter is 
 to no extent bound.* 
 
 § 1099. Secondly. The Gteneral Agent : — 
 
 Unauthorized. — In cases not within the doctrine of estop- 
 pel,^ a general agent can no more than a special one bind his 
 principal by acts not covered by his authorization.^ But, — 
 
 § 1100. Holding out. — Within the rule of estoppel,'^ if one, 
 by words or by conduct, holds out to the public, or to an 
 individual who acts upon the representation, that a person 
 indicated is his agent, either generally or as to a particular 
 transaction, and any party in the one case, or the special in- 
 
 1 Morrow v. Higgins, 29 Ala. 448; ton v. Brittain, 10 Ire. 8. And see 
 Baum V. Dubois, 7 Wright, Pa. 260, Landsdale v. Shackleford, Walk. Missis. 
 265; Long V. Hartwell, 5 Vroom, 116; 149; Tate».Evans, 7 Misso.419; White 
 Dutton V. Warschauer, 21 Cal. 609 ; v. Cooper, 3 Barr, 130. 
 
 Worrall v. Munn, 1 Selden, 229 ; Wood ^ Ante, § 1091. 
 
 V. Auburn, &c. Railroad, 4 Selden, 1 60 ; 6 Ante, § 1057 et seq. ; Petrie ii. Penn- 
 
 Thomas v. Joslin, 30 Minn. 388 ; The sylvania Bailroad, 13 Vroom, 449 ; 
 
 State V. Spartanburg, &c. Railroad, 8 Asher v. Sutton, 31 Kan. 286 ; Robinson 
 
 S. C. 129. V. Chemical Nat. Bank, 86 N. Y. 404, 
 
 2 Vanada v. Hopkins, 1 J. J. Mar. 407; Reed v. Ashbumham Railroad, 
 285 ; Smith v. Tracy, 36 N. T. 79. And 120 Mass. 43 ; Lewis v. Shreveport, 108 
 see Brady t>. Todd, 9 C. B. n. s. 592. V. S. 282 ; Abrahams v. Weiller, 87 HI. 
 
 8 Ante, § 1064. 179. 
 
 * Boston Iron Co. v. Hale, 8 N. H. _ ' Ante, § 1091. 
 363 ; Jaques v. Todd, 3 Wend. 83 ; Pat- 
 
 439 
 
§ 1103 PARTIES AND OTHER PARTAKERS. [BOOK II. 
 
 dividual in the other, deals in good faith with such apparent 
 agent, within the apparent authorization, he is bound; though, 
 in fact, there was no authority, or the authority did not ex- 
 tend to the doing of what was done.^ Thus, — 
 
 § 1101. In Counting-room. — A payment of money to one in 
 a merchant's counting-room, ostensibly intrusted with the 
 business therein, yet not so in fact, is a payment to the mer- 
 chant ; 2 for he had placed the apparent agent in a position to 
 mislead the other to his injur}' if the agency were not real,* 
 therefore he ought to be responsible for what in the ordinary 
 course of business followed.* Again, — 
 
 § 1102. Intrusting with Business. — One who intrusts an- 
 other with his business ^ — for example, places him in general 
 charge of his retail store,^ or in general superintendence of 
 his foundry ^ — is responsible for whatever he does in such 
 business, according to its usual course ; though, as between 
 principal and agent, the latter exceeded his authority, or 
 defrauded the former. And a foreign corporation is, as to 
 strangers not having notice of its rules, estopped to deny the 
 power of an agent to make a contract within its apparent 
 functions, yet contrary to the rules.* In like manner, an 
 insurance company must bear the consequences of its agent's 
 mistake, in wrongly stating facts correctly given him by the 
 insured.* In these cases, it is important to inquire what are 
 the— - 
 
 § 1103. Usages of the Particular Business. — Where the 
 usages of a business are publicly known, the agent is pre- 
 sumed to have the full powers commonly exercised by an 
 
 1 Lewis V. Bourbon, 12 Kan. 186 ; » Ante, § 284 et seq. 
 
 Dodge V. McDonnell, 14 Wis. 553 ; * De Baun v. Atchison, 14 Misso. 
 
 Booth u.'Wiley, 102 HI. 84; Airey v. 543; Dunham w. Jackson, 6 Wend. 22; 
 
 Okolona Sav. Inst. 33 La. An. 1346 ; Linsley v. Lovely, 26 Vt. 123. 
 
 Nicholson v. Moog, 65 Ala. 471 ; Ainer- b Swire v. Francis, 3 Ap. Cas. 106; 
 
 ican Merchants Exp. Co. v. Milk, 73 111. Phillip ». Aurora Lodge, 87 Ind. 505. 
 
 224; Kingsley v. Fitts, 51 Vt. 414; » White w. Leighton, 15 Neb. 424. 
 
 Kelton V. Leonard, 54 Vt. 230. See Ish ' Hosklns v. Swain, 61 Cal. 338. 
 
 w. Crane, 8 Ohio State, 520. ' Union Mut. Life Ins. Co. v. White, 
 
 2 Barrett v. Deere, Moody & M. 200. 106 111. 67. 
 
 And see Leslie v. Knickerbocker Life ' Farmers Ins. Co. v. Williams, 39 
 
 Ins. Co. 63 N. Y. 27, 34. Ohio State, 584. 
 
 440 
 
CHAP. XL.] CONTRACTS THROUGH AGENTS § 1106 
 
 agent therein; so that, though he has not, third persons, 
 without notice, are protected in dealing with him as though 
 he had.i But what is done beyond the usage, and not within 
 the authority in fact, does not bind the principal.^ And — 
 
 § 1104. Former Dealings through the Agent. — A course of 
 dealing by the particular ageut, sanctioned by the principal, 
 — as, for example, in paying bills without denying the au- 
 thority, — will enable this ageut to charge his principal in 
 other similar cases, even though, in truth, the authority never 
 existed, or has been withdrawn.^ Yet this doctrine will not 
 protect one who, while bargaining with the agent, knows the 
 facts.* As to — 
 
 § 1105. Withdrawal and Notice. — Where the principal with- 
 draws from the agent an authority, whether it existed in fact 
 or by implication, he must give due notice that it has ceased ; 
 or he will be holden to any innocent third person who deals 
 with the former agent, believing the agency to continue.^ 
 Anything adequate to put one on inquiry is notice ; ® for, 
 where the agent is not authorized in fact, a third person, to 
 maintain a claim against the supposed principal, must himself 
 have conducted in good faith.'' 
 
 § 1106. Thirdly. The Ratification of Unauthorized Acts of 
 Agency : — 
 
 Voidable — Void — Ratification. — Where, as in the ordi- 
 nary case, one in good faith contracts with a person whom he 
 supposes to be an agent while he is not, or with a real agent 
 
 1 Minor V. Mechanics Bank, 1 Pet. 116; Curtis v. Barrs, Peake Ad. Cas. 
 46, 70 ; Pickering v. Bask, 15 East, 38 ; 119. 
 
 Whitehead v. Tuckett, 15 East, 400; 6 Lamothe w. St. Louis Marine Rail- 
 Wright V. Solomon, 19 Cal. 64; Chou- way and Dock Co. 17 Misso. 204; 
 teaux V. Leech, 6 Harris, Pa. 224 ; York Hancock v. Byrne, 5 Dana, 513 ; Beard 
 County Bank v. Stein, 24 Md. 447 ; Wil- v. Kirk, 11 N. H. 397 ; Diversy v. Kel- 
 liams t). Getty, 7 Casey, Pa. 461 ; Mount logg, 44 111. 114; Longworth v. Con- 
 Olivet Cemetery u. Shubert, 2 Head, 116. well, 2 Blackf. 469 ; Baltimore v. Esch- 
 
 2 Pope V. Albion Bank, 57 ST. Y. 126. bach, 18 Md. 276 ; Planters Bank i-. 
 And see Browning u. Owen, 44 Ind. 11. Cameron, 3 Sm. & M. 609; Munn v. 
 
 « Watts V. Devor, 1 Grant, Pa. 267; Commission Co. 15 Johns. 44; True- 
 Farmers Mutual Ins. Co. v. Taylor, 23 man v. Loder, 11 A. & E. 589. 
 Smith, Pa. 342 ; Davis v. Lane, 10 N. H. » Williams v. Birbeck, Hoffman, 359. 
 156; Miller v. Moore, 1 Cranch C. C. ' Hodge v. Combs, I Black, 192; 
 471. National Life Ins. Co. v. Minch, 53 N. Y. 
 
 ^ Smith V. Stanger, Peake Ad. Cas. 144. 
 
 441 
 
§ 1109 PARTIES AND OTHER PARTAKERS. [BOOK II. 
 
 beyond the scope of the agency, the agent ^ and he have 
 their mutual liabilities if the assumed principal refuses to rat- 
 ify the act. If he ratifies it, the contracting having been in 
 the principal's name, the agent is relieved.^ As between the 
 principal and the contracting third person, therefore, the con- 
 tract is voidable ; because binding on such third person, and 
 good or ill as to the principal at his election.^ In the few 
 exceptional cases wherein it is not in the principal's power to 
 ratify the contract,* it is, not voidable, but void.^ 
 
 § 1107. Elsewhere. — The ratification of voidable contracts 
 is fully explained in other connections.^ The sort now under 
 consideration does not differ in principle from the rest, there- 
 fore the expositions here may be brief. 
 
 § 1108. Power of Ratification — Effect. - — Any person, ca- 
 pable of entering into a contract,'^ in whose name another as 
 agent has, unauthorized, made one for him,^ has the power to 
 ratify it, rendering it good from the beginning, and in all 
 other respects the same as though the authority had originally 
 existed.® 
 
 § 1109. How. — As in other cases of ratification, the prin- 
 cipal must have knowledge of the facts ; ^^ then, if he accepts 
 the benefit of the contract,^' or if he remains silent while he 
 
 1 Post, § 1119, 1120. Mann v. JEtna Ins. Co. 40 Wis. 549; 
 
 2 Berger's Appeal, ISNorris, Pa.443. Sheldon Hat Blocking Co. v. Eicke- 
 8 Ante, § 611, 617, 905^ 924. meyer Hat, &c. Co. 90 N. Y. 607; Pol- 
 * Ante, § 848. lock v. Cohen, 32 Ohio State, 514; 
 
 5 Armitage v. Widoe, 36 Mich. 124. Hovey v. Brown, 59 N. H. 114. 
 
 6 Ante, §286, 542, 614, 620, 679, " Stacker v. Smith, 46 Mich. 14; 
 683, 844-849, 936-945, 974-976, 995; Matteson v. Blackmer, 46 Mich. 393; 
 post, § 1114, 1222-1226. -' Strasser v. Conklin, 54 Wis. 102; John- 
 
 ' Ante, § 1106. son v. Bernheim, 76 N. C. 139; Miles 
 
 ^ The doctrine applies only to this v. Ogden, 54 Wis. 573 ; Glover v. Dowa- 
 
 class of contracts, not to those which do giac Univ. Parish, 48 Mich. 595 ; Dunn 
 
 not purport to be the principal's. Col- v. Harliord, &c. Railroad, 43 Conn. 434 ; 
 
 lins V. Suan, 7 Rob. N. Y. 623 ; Cora- Vaughn y. Sheridan, 50 Mich. 155; Fow- 
 
 mercial Bank v. Jones, 18 Texas, 811 ; ler v. New York Gold Exch. Bank, 67 
 
 Hamlin v. Sears, 82 N. Y. 327,330, 331. N. Y. 138; Ruggles v. Washington, 3 
 
 ' Williams v. Butler, 35 Bl. 544 ; Misso. 496 ; Hastings v. Bangor House, 
 
 Indianapolis, &c. Railroad v. Morris, 67 18 Maine, 436 ; Low v. Connecticut, &c. 
 
 HI. 295; Pollock v. Cohen, 32 Ohio Railroad, 46 N. H. 284; Beid v. Hib- 
 
 State, 514 ; Sentell v. Kennedy, 29 La. bard, 6 Wis. 175 ; Perry w. Mulligan, 58 
 
 An. 679 ; Wilson v. Dame, 58 N. H. 392. Ga. 479 ; Fouch v. Wilson, 59 Ind. 93 ; 
 
 1° Roberts v. Rumley, 58 Iowa, 301 ; Bolton v. Hilleraden, 1 Ld. Raym. 224. 
 
 442 
 
CHAP. XL.] CONTRACTS THROUGH AGENTS. § 1112 
 
 ought to speak,^ or if by any other act or by words he 
 waives ^ the objection which he knows he might interpose,^ 
 he affirms what was done by the assumed agent, and the con- 
 tract becomes his. Having the choice of ratification or repu- 
 diation, he cannot recede from either when done.* 
 
 § 1110. AU or None. — The principal is not permitted to 
 ratify a part of the agent's act, and repudiate the rest.^ But 
 this neither permits a corporation to ratify its agent's ultra 
 vires contracts, nor precludes it from affirming those within 
 the corporate powers.* 
 
 VIII. Frauds by and to Agents. 
 
 § 1111. Authorized by Principal. — The doctrine is univer- 
 sal in the law, that one who commits any wrong, civil or 
 criminal, through the agency of another,'^ incurs the same lia- 
 bility as if he did it by his own direct volition .^ Within 
 which doctrine, a party who inspires his agent to procure for 
 him a contract by fraud, sustains the same relation to it as if 
 the fraud were his personal act.^ Again, — 
 
 § 1112. Unauthorized Fraud in Authorized Agency. — The 
 rule in civil jurisprudence is still broader ; namely, that the 
 principal is responsible for the agent's acts, though unauthor- 
 ized, within the limits and in the execution of the agency,^'' 
 
 1 Walker v. Walker, 7 Baxter, 260; 5 Eberts v. Selover, 44 Mich. 519 ; 
 Cairo, &o. Railroad v. Mahoney, 82 111. Tasker v. Kenton Ins. Co. 59 N. H. 438 ; 
 73; Schenck v. Santter, 73 Misso. 46; Joslin w. Miller, 14 Neb. 91 ; Crawford j>. 
 Meyer v. Morgan, 51 Missis. 21 ; Haw- Barkley, 18 Ala. 270 ; Hodnett v. Tatum, 
 kins V. Lange, 22 Minn. 557 ; Law v. 9 Ga. 70 ; Crans v. Hunter, 28 N. T. 389. 
 Cross, 1 Black, 533 ; Owsley v. Wool- ^ Bangor Boom Corp. v. Whiting, 29 
 hopter, 14 Ga. 124 ; Brigham v. Peters, Maine, 123. 
 
 1 Gray, 139; Lindsley v. Malone, 11 ' Ante, § 1026. 
 
 Harris, Pa. 24 ; Cairnes v. Bleecker, 12 * United States v. Voss, 1 Cranch 
 
 Johns. 300. C. C. 101 ; 1 Bishop Crim. Law, § 631 ; 
 
 2 Ante, § 777-808. Moir v. Hopkins, 16 111. 313; Exum v. 
 
 * Jones V. Atkinson, 68 Ala. 167; Brister, 35 Missis. 391. 
 
 Bailey v. King, 41 Conn. 365 ; Warder » Lunday v. Thomas, 26 Ga. 537, 
 
 V. Pattee, 57 Iowa, 515; Merrifield v. 544; Lewis v. The State, 21 Ark. 209; 
 
 Parritt, 11 Cash. 590. Kelly v. Troy Fire Ins. Co. 3 Wis. 254. 
 
 * Andrews v. Miaa, Life Ins. Co. 92 i" Story Agency, § 452 ; Udell v. Ath- 
 N. T. 596, 604. Compare with Wood- erton, 7 H. & N. 172, 7 Jur. N. s. 777; 
 ward V. Harlow, 28 Vt. 338 ; Keed v. Fuller v. Wilson, 3 Q. B. 58, 67 ; South- 
 Latham, 40 Conn. 452. wick v. Estes, 7 Cush. 385; Phelon v. 
 
 443 
 
§ 1116 PARTIES AND OTHER PARTAKERS. [BOOK II. 
 
 yet not beyond those limits.^ So that, if the agent, in a par- 
 ticular contracting covered by his authorization, makes fraud- 
 ulent representations, the other party may treat them as the 
 principal's own, though he did not direct or expect them. 
 Having employed the agent to do the thing, he must bear 
 whatever comes from the manner of doing.^ But, — 
 
 § 1113. Not in Line of Agency. — For an independent fraud, 
 by a special agent, not within the scope of his agency, the 
 principal is not responsible.^ Still, — 
 
 § 1114. Ratified by Principal. — If one, however innocently, 
 accepts the benefit of a contract made in his behalf by an- 
 other, or otherwise ratifies it, he then becomes responsible 
 for any fraud which entered into its procurement, the same 
 as though committed in person.* 
 
 § 1115. Praud on Agent. — A fraud practised on an agent 
 is, in law, a fraud upon his principal.^ 
 
 IX. The Rights and Liabilities of Agents. 
 
 § 1116. Elsewhere. — In a preceding sub-title,® we saw 
 under what circumstances a suit may be maintained, or not. 
 
 Stiles, 43 Conn. 426. " With respect to ton, 47 N. Y. 167 ; Jeffrey v. Bigelow, 13 
 
 the question, whether a principal is an- Wend. 518 ; Smith v. Tracy, 36 N. Y. 
 
 swerable for the act of his agent in the 79 ; Johnson v. Barber, 5 Gilman, 425 ; 
 
 course of his master's business, and for Henderson v. Railroad, 1 7 Texas, 560 ; 
 
 his master's benefit, no sensible distinc- Wright v. Calhoun, 19 Texas, 412 ; 
 
 tion can be drawn between the case of Morton v. Scull, 23 Ark, 289; Union 
 
 fraud and the case of any other wrong. Bank v. Campbell, 4 Hamph. 394 ; Ben- 
 
 The general rule is, that the master is nett v. Judson, 21 N. Y. 238 ; Murray v. 
 
 answerable for every such wrong of the Mann, 2 Exch. 538, 540. See Perley v. 
 
 servant or agent as is committed in the Catlin, 31 HI. 533 ; Kennedy v. McKay, 
 
 course of the service and for the mas- 14 Vroom, 288. 
 
 ter's benefit, though no express com- ^ Kennedy v. Parke, 2 C. E. Green, 
 
 mand or privity of the master be proved." 415; Fellows v. Oneida, 36 Barb. 655; 
 
 Willes, J. in Barwick v. English Joint Echols v. Dodd, 20 Texas, 190 ; Kelly v. 
 
 Stock Bank, Law Eep. 2 Ex. 259, 265. Troy Fire Ins. Co. 3 Wis. 254. 
 
 1 Kennedy v. Parke, 2 C. E. Green, * National Life Ins. Co. v. Minch, 
 415 ; Clark v. Baker, 2 Whart. 340; 53 N. Y. 144 ; Elwell v. Chamberlin, 31 
 Oxford V. Peter, 28 111. 434. N. Y. 611 ; Smith v. Tracy, 36 N. Y. 79 ; 
 
 2 Willis V. Martin, 4 T. R. 39, 66; Lane «. Black, 21 W. Va". 617. 
 Locke V. Stearns, 1 Met 560; Jewett v. ^ May v. Magee, 66 111. 112. 
 Carter, 132 Mass. 335; Robinson v. ^ ^nte^ § io69-1090. 
 Walton, 58 Misso. 380 ; Durst v. Bur- 
 
 444 
 
CHAP. XL.] CONTRACTS THROUGH AGENTS. § 1119 
 
 between the agent and a third party who has contracted with 
 him. 
 
 § 1117. Agent's Torts and Crimes. — The command of a 
 principal never justifies the commission of either a civil tort ^ 
 or a criminal wrong ;2 therefore the agent incurs the same 
 liability as though he did not act under another, but proceeded 
 self-moved. Hence, — 
 
 § 1118. Agent's Fraud. — Though, to the extent stated in 
 the last sub-title, the principal is responsible for the fraud of 
 his agent, the agent also is personally liable, the same as 
 though he were acting for himself.^ But, — 
 
 § 1119. Contracts in Name of Principal — (Whether Agent 
 liable). — Except as stated in a preceding sub-title,* and 
 except as is about to appear, an agent is not personally 
 responsible for a contract which, in good faith, he makes in 
 the name of his principal whom he intends to bind.^ Even 
 though he has no authority, if the other party is equally with 
 himself cognizant of the facts, both being conclusively pre- 
 sumed to know the law,^ and if under the facts and law the 
 principal in the particular instance is not holden, neither will 
 be the agent, who has thus acted honestly .^ On this ground, 
 a public agent, whose functions are defined by law,^ therefore 
 presumably known by all, is not personally answerable though 
 he fails to bind his principal by reason that he exceeds his 
 
 1 Bell u. Josselyn, 3 Gray, 309; Lee ' Cullen v. Thomson, 4 Macq. Ap. 
 V. Mathews, 10 Ala. 682 ; Johnson v. Cas. 424, 9 Jur. n. a. 85; Swift v. Win- 
 Barber, 5 Gilman, 425 ; Richardson v. terbothara. Law Rep. 8 Q. B. 244 ; 8. c. 
 Kimball, 28 Maine, 463 ; Hardacre nom. Swift ». Jewsbury, Law Rep. 9 
 V. Stewart, 5 Esp. 103 ; Gaines v. Briggs, Q. B. 301. 
 
 4 Eng. 46 ; Etter v. Bailey, 8 Barr, 442 ; * Ante, § 1069-1090. 
 
 Bennett v. Ives, 30 Conn. 329. Story 5 Rathbon v. Badlong, 15 Johns. 1 ; 
 
 states the doctrine thus: "The agent Seery v. Socks, 29 111. 313; Ogden v. 
 
 is personally liable to thh-d persons for Raymond, 22 Conn. 379 ; Abbey v. 
 
 his own misfeasances and positive Chase, 6 Cnsh. 54 ; Whitney v. Wyman, 
 
 wrongs. But he is not, in general, 101 U. S. 392 ; Alexander v. Sizer, Law 
 
 for there are exceptions, liable to third Rep. 4 Ex. 102. 
 persons for his own non-feasances or ^ Ante, §461 et seq. 
 omissions of duty in the coarse of his ' Ware v. Morgan, 67 Ala. 461 ; 
 
 employment. His liability, in these lat- Jefts v. York, 10 Gush. 392, 395, 396; 
 
 ter cases, is solely to his principal." Polliill v. W^alter, 3 B. & Ad. 114, 124. 
 Story Agency, § 308. ' Ante, § 993. 
 
 2 1 Bishop Crim. Law, § 355. 
 
 445 
 
§ 1120 PARTIES AND OTHER PARTAKERS. [BOOK Hi 
 
 authority.^ And, on the same ground, a wife, who in pro- 
 curing domestic supplies was acting as agent of her husband 
 abroad, was adjudged not responsible for those which were 
 furnished her after he, unknown to either party, had died,^ 
 so that his estate was not holdeu.^ But, in cases where the 
 agent and the person contracting with him are not on an 
 equality as to their knowledge of the facts, — whereof the 
 agent is actually or presumptively cognizant, while the other 
 is not, — he who fails to charge his principal charges himself.* 
 There are differences of opinion as to the nature of the obli- 
 gation so incurred. Thus, — 
 
 § 1120. How Agent liable. — By the English doctrine, com- 
 monly followed in our courts, the agent, if in form the con- 
 tract is the principal's, cannot be holden as promisor therein, 
 though the contracting was unauthorized. If he was aware 
 of his want of authorit3% his act was fraudulent in fact ; if 
 not aware, it was fraudulent in law ; and, in either case, the 
 law implies his warranty that he had authority, or makes him 
 responsible as for a tort.* Some of our American courts 
 hold that, in these circumstances, the agent is directly an- 
 swerable on the contract, as the party; "and the name of 
 the person for whom he assumed to act will be rejected as 
 surplusage." ® Probably, by all opinions, if an agent con- 
 tracts, really for himself, but ostensibly for an unnamed prin- 
 cipal,''' or for a fictitious one,^ or if he has personally received 
 
 1 Sandford v. McArthur, 18 B. Monr. v. Nicholson, 18 Q. B. 503 ; Kroeger v. 
 411 ; Webster v. Lamed, 6 Met. 522. Pitcairn, 5 Out. Pa. 311 ; Teele v. Otis, 
 
 2 Smout V. Ilbery, 10 M. & W. 1. 66 Maine, 329 ; Eandell v. Trimen, 18 
 8 Ante, § 1052, 1053. C. B. 786 ; Pow v. Davis, 1 Best & S. 
 * Rossiter v. Rossiter, 8 Wend. 494 ; 220, 7 Jar. n. s. 1010 ; Eastwood v. 
 
 Meech v. Smith, 7 Wend. 314 ; Deming Bain, 3 H. & N. 738. 
 V. Bullitt, 1 Blackf. 241 ; Layng v. Stew- ^ Dasenbnry v. Ellis, 3 Johns. Cas. 
 
 art, 1 Watts & S. 222; Feeter v. Heath, 70, 71 ; Palmer v. Stephens, 1 Denio, 
 
 11 Wend. 477, 485, and the cases cited 471, 480; Sinclair v. Field, 8 Cow. 543; 
 
 to the next section. Richie v. Bass, 15 La. An. 668 ; Keener 
 
 5 Ante, § 247 ; Smout v. Ilbery, 10 v. Harrod, 2 Md. 63 ; Weare v. Gove, 44 
 
 M. & W. 1, 9; Ballou v. Talbot, 16 N.H.I 96; Dodd u. Bishop, 30 La. An. 
 
 Mass. 461 ; Jefts v. York, 4 Cush.-371 ; 1178; White v. Skinner, 13 Johns. 307. 
 Polhill V. Walter, 3 B. & Ad. 114; Col- ' Ante, § 1076; Schmaltz i>. Avery, 
 
 len V. Wright, 7 Ellis & B. 301 ; Beattie 16 Q. B. 655 ; Carr v. Jackson, 7 Exch. 
 
 V. Ebury, Law Rep. 7 Ch. Ap. 777, 791 ; 382. 
 Taylor v. Shelton, 30 Conn. 122 ; Lewis 8 Ridenour v. Mayo, 40 Ohio State, 9. 
 
 446 
 
CHAP. XL.] CONTRACTS THROUGH AGENTS. § 1121 
 
 the benefit of the contract,^ he is liable upon it as his own. 
 In these instances, therefore, by all opinions, the law holds 
 him as personally promising, when by the outward fact he 
 promises for another ; because, in truth, the real or supposed 
 other person does not promise. Now, this proposition covers 
 as well the case of an agent who acts for a real principal with- 
 out authority, as the one for which it is thus formulated. 
 Why, then, should not all the courts apply it as well in the 
 one form of the facts as in the other ? The result would be 
 simply to give the other party an election ; he could still 
 sue the assumed agent, on the implied warranty, or for the 
 tort. 
 
 § 1121. Responsibility to Principal. — The agent's responsi- 
 bility to his principal is various. Not to attempt a complete 
 enumeration, he will be answerable if negligent or careless in 
 the discharge of his duties ; ^ all his acts must be in the prin- 
 cipal's interest, none in his own ; ^ or, if he undertakes to 
 deal for himself in his principal's affairs, the latter may ap- 
 propriate the benefits derivable therefrom ; * he must obey 
 instructions ; ^ he must render proper accounts,® pay over 
 moneys,'' and deliver securities^ and other property.^ The 
 legal consequences of his misbehavior will be obvious. And 
 we have seen i** that there are few circumstances in which the 
 agent will escape liability if he fails to charge his principal. 
 
 J Eailton v. Hodgson, stated 15 East, Iowa, 708 ; Morgan v. Elford, 4 Ch. D. 
 
 67. • 352. 
 
 2 Whitney v. Martine, 88 N. T. 535 ; 6 Adams v. Robinson, 65 Ala. 586 ; 
 
 Bramble v. Brown, 73 N. C. 476 ; Mc- Hardeman v. Ford, 12 Ga. 205 ; Bell v, 
 
 Crary v. Ashbaugh, 44 Misso. 410 ; Al- Cunningham, 3 Pet. 69 ; Miner «. Tag- 
 
 len V. Suydam, 17 Wend. 368, 20 Wend, ert, 3 Binn. 204; Butts v. Phelps, 79 
 
 321 ; Robinson Mach. Works v. Vorse, Misso. 302. 
 
 52 Iowa, 207. ^ Schedda v. Sawyer, 4 McLean, 181 ; 
 
 s Dodd V. Wakeman, 11 C. E. Dunwidie y. Kerley, 6 J. J. Mar. 501; 
 
 Green,484; Byrdw. Hughes, 84111. 174; Matthews v. Wilson, 27 Misso. 155; 
 
 Harrington v. Victoria Graving Dock Ridder v. Whitlock, 12 How. Pr. 208. 
 
 Co. 3 Q. B. D. 549; Whelan v. Mc- ' Seidel t). Peschkaw, 3 Dutcher, 427 ; 
 
 Creary, 64 Ala. 319. Reed v. Dougan, 54 Ind. 306. 
 
 * Ante, § 740 ; Wheeler v. Willard, * Ehinelander v. Barrow, 17 Johns. 
 
 44 Vt. 640 ; Greenfield Sav. Bank v. 538. 
 
 Simons, 133 Mass. 415 ; Davis v. Ham- ' Robertson v. Woodward, 3 Rich, 
 
 lin, 108 111. 39 ; Motley v. Motley, 251. 
 
 7 Ire. Eq. 211; Seymour v. Shea, 62 i" Ante, § 1118 et seq. 
 
 447 
 
§ 1122 PARTIES AND OTHER PARTAKERS. [BOOK II. 
 
 § 1122. The Doctrine of this Chapter restated. 
 
 Men, living in communities, are necessarily agents and 
 principals in their own and each other's transactions, almost 
 continually. There never was a person, of adequate capacity, 
 who has not been both. Hence the relation of principal and 
 agent comes often under review by our courts. And to it 
 the following propositions apply : — 
 
 First, any act of contracting which a man can do person- 
 ally he can do, in some form, by agent. 
 
 Secondly, no formal authorization of the agent is necessary, 
 unless made so by some special rule of law ; but, in fact, he 
 must be authorized when the contracting is done, or it must 
 be subsequently ratified by the assumed principal, or the con- 
 duct of the principal must have been such as to estop him to 
 deny the agency. 
 
 Thirdly, the agent stands in the place of the principal; 
 who, therefore, is bound by his contracts, and is entitled to 
 avail himself of them, the same as though made by himself. 
 
 Fourthly, if the agent acts as principal, he is personally 
 holden ; otherwise, doing no more than is incumbent on him 
 as agent, he incurs no liability. 
 
 Fifthly, if persons deal with an agent, reasonably supposing 
 him to be a principal, they may still have their remedies 
 against the principal, when informed of their mistake ; but, 
 if they know how the fact is while making the contract, yet 
 choose to deal with the agent as principal, they cannot after- 
 ward recede from their own voluntary bargain, and come upon 
 the other. 
 
 Sixthly, by the common law, some exceptions td these rules 
 have been established for specialties ; and, by statutes, there 
 have been some as to simple contracts. 
 
 Seventhly, the principal can in no circumstances avail him- 
 self of a contract fraudulently procured by the agent, without 
 being responsible also for the fraud. If he authorized it, he 
 is liable ; if the agent, in carrying out the agency, practised 
 it without authority, the principal is liable ; if the latter rati- 
 448 
 
CHAP. XL.] CONTEACTS THROUGH AGENTS. § 1122 
 
 fied an unauthorized contract, which had been procured for 
 him through fraud, he is responsible, since he cannot accept 
 a part and reject the rest. 
 
 Eighthly, the agent is answerable for his own fraud, 
 whether the principal commanded it or not ; such command, 
 if given, is simply void.' 
 
 Ninthly, one contracting as agent for another warrants in 
 matter of law, to the person with whom he deals, that he is 
 such agent, and is acting within his authorization. 
 
 Tenthly, the principal can at will discharge his agent, being 
 answerable to him for any breach of contract involved there- 
 in. And, by operation of law, the agency is terminated by 
 the death or insanity of either principal or agent. 
 
 1 Goodhue v. McClarty, 3 La. An. 56. 
 
 29 449 
 
§ 1123 PARTIES AND OTHER PARTAKERS. [bOOK U. 
 
 CHAPTER XLT. 
 
 SPECIAL SORTS OF AGENTS. 
 
 § 1123. Law's Growth. ■ — The elucidations of this chapter 
 will illustrate, in part, the manner in which, otherwise than by 
 legislation, the law grows. They will show how usage ripens 
 into law ;^ and how false is the term "judicial legislation," 
 when applied, as it often is by the misinformed, to the de- 
 cisions of our judicial tribunals. The courts do not make 
 custom, but the people do ; and, when what has thus sprung 
 up from the people has so grown as to be universally recog- 
 nized and followed, the courts take, as they should, judicial 
 cognizance of it. The people, who make the language, and 
 make the legislature, have thus created directly, and neither 
 by legislative nor judicial help, what everybody calls law.^ 
 Again, a controversy arises between two men, not stirred up 
 by the courts, and the judges do what the people require of 
 them ; namely, decide it. The primary command to them is 
 to settle the controversy; the secondary, to follow therein, as 
 well as diligence and their capacities enable them, the law. 
 The people, in requiring them so to act, conclusively imply 
 that there is for the case a law, which they are to find. 
 When they declare that they have found it, by what right 
 does a man whose vision does not discern it, pronounce the 
 law to be judge-made? Of necessity, our judges, who are 
 mortal, and not all of whom have juridical minds, and not all 
 are deeply learned in the law, sometimes err. To say, there- 
 fore, that they err, may be true. But it is always false to 
 declare that they, whose business it is to expound and enforce 
 
 1 Ante, § 445. 2 See the entire chapter, ante, § 438-460. 
 
 450 
 
CHAP. XLI.] SPECIAL SORTS OP AGENTS. § 1125 
 
 the law which they find, make law. " Judge-made law " is a 
 thing absolutely without existence among us. That the 
 courts follow prior decisions is not their fault, for the law 
 requires it of them. If the law in this respect is not satisfac- 
 tory to the people, the legislature should ordain its repeal.^ 
 
 § 1124. Diverse Agencies — (Custom — Adjudication). — 
 Business, in a civilized community, creates its special chan- 
 nels, and therein it mostly flows. And, to a considerable 
 extent, the different sorts of business require agencies spe- 
 cially adapted each to itself. The salesman, who assists the 
 trader in the latter's shop or store, exercises functions differ- 
 ent from those of the broker. The lawyer, in conducting his 
 client's cause in court, is an agent differing from both the 
 others. A commission merchant, too, is an agent, but his 
 functions are neither those of a salesman in a store, nor of a 
 broker, nor are they those of a lawyer. There are consider- 
 able numbers of agencies more or less differing. The general 
 law of agency governs all, subject to such qualifications as 
 come from the special sort. These qualifications have been 
 produced in the two waj'^s mentioned in the last section. 
 Customs have grown up, in each particular agency, more or 
 less regulating it. Some have not ripened into law, and par- 
 ties who rely on them must prove them. Others have become 
 a part of the law, whereof the courts take judicial cogni- 
 zance.^ Again, a question special to the individual sort of 
 agency arises before the courts, and they decide it. When 
 the like question next presents itself to a tribunal of the 
 same State, the former decision will probably be controlling ; 
 when, before a court in another State, it will almost certainly 
 be followed if right, and not improbably if wrong.^ Thus a 
 series of precedents create what, as shown in the last section, 
 is falsely termed "judge-made law;" pertaining, not to tlie 
 law of agency in ge eral, but to the particular sort of agency. 
 To illustrate, — 
 
 §1125. Attorney-at-Law : — 
 
 Officer of Court. — According to American usage at the 
 
 1 Compare with ante, § 4-15. ' Ante, § 11-15. 
 
 2 Ante, § 378, 438-460. 
 
 451 
 
§ 1126 PARTIES AND OTHER PARTAKERS. [BOOK II. 
 
 present day, differing from the English, every legal practi- 
 tioner is an attorney. And an attorney-at-law is, while 
 he is the client's agent,^ likewise an officer of the court in 
 which he practises.^ He has taken the oath of his office 
 to be faithful to the court, as well as to his client.^ And 
 he may be summarily punished for official wrong doings.* 
 Now, — 
 
 § 1126. Consequently, — In that reason which constitutes 
 the law,^ we discover, as resulting from the official character 
 of the attorney-at-law, what distinguishes him, not widely, 
 but in some degree, from other agents. Thus, because he is 
 an officer, he must, like other officers,® be presumed prima 
 facie to have done his official duty ; which, in this case, is, 
 not his duty to his client, whose officer he is not ; but to the 
 court, whose officer he is. For example, a sheriff, or other 
 officer of the court to serve process, must return it ; ^ then, if 
 he does, his certificate thereof is held to be, presumptively or 
 conclusively, according to the nature of the case, correct; 
 and it does not, as would a like writing from a person not an 
 officer, require extraneous proof.* Thereupon, should a ques- 
 tion newly arise as to an attorney's rights and acts in court, 
 its decision will create no new law, the judges will merely 
 apply to it the plain and settled doctrines concerning the 
 mutual relations of courts and their officers. The case will 
 constitute a precedent to be cited when other like cases 
 arise,® and the writer of a text-book may have a paragraph 
 on the topic ; so that new law will seem to have been made, 
 
 ^ Spinks V. Davis, 32 Missis. 152; ^ Ante, § 14, 15. 
 
 Ingraham v. Leland, 19 Vt. 304; Val- « 1 Bishop Crim. Proced. § 1131. 
 
 entine v. Stewart, 15 Cal. 387; Ex 'lb. §187; Lawrence v. Rice, 12 
 
 parte Rogers, Law Rep. 3 C. P. 490. Met. 535, 541 ; Gallup v. Robinson, 11 
 
 ^ Close V. Gillespey, 3 Johns. 526 ; Gray, 20 ; People v. Johnson, 4 Bradw. 
 
 Norwich v. Berry, 4 Bur. 2109, 2115, 346. 
 2116; Austin's Case, 5 Rawle, 191. * Whithead v. Keyes, 3 Allen, 49.1, 
 
 ' Champion b. The State, 3 Coldw. 498 ; Huntress v. Tiney, 39 Maine, 237 ; 
 
 111 ; In re Comroodeen Tyabjee, 1 Kingsbury w. Buchanan, II Iowa, 387; 
 
 Ellis & E 319, 4 Jur. N. s. 1108. Owens v. Ranstead, 22 111. 161 ; Ingra- 
 
 * 2 Bishop Crim. Law, § 255 ; Pierce ham v. McGraw, 3 ICaa. 521 ; Newton 
 
 V. Blake, 2 Salk. 515; In re Percy, 36 v. State Bank, 14 Ark. 9; Foster v. 
 
 N. Y. 651; Anonymous, 6 Mod. 187; Dryfus, 16 Ind. 1.58. 
 In re Peterson, 3 Paige, 510. » Ante, § 10-13. 
 
 452 
 
CHAP. XLI.] SPECIAL SORTS OP AGENTS. § 1129 
 
 but in truth it will be the law which existed before, though 
 not found expressed in terms in the books. Thus, — 
 
 §1127. Appearance for Client — Such adjudications have 
 already been made. Not always, perhaps, have the judges 
 making them been duly careful as to the form of the argu- 
 ment ; ^ but, at least, they have established the satisfactory 
 conclusion, that the official character of an attorney creates 
 the presumption of authority when he appears in court for a 
 client ; which, though it may be questioned, can be over- 
 come only by circumstances or evidence affirmatively and 
 distinctly controlling. Some of the cases give even greater 
 effect to the presumption of the attorney's authorization.^ 
 But, where an act in court, such as the waiver of process, has 
 been done by one not admitted as an attorney, there will be 
 no presumption of authority, without proof of which the steps 
 taken thereon will be erroneous.^ 
 
 § 1128. other Things. — Besides this question of appear- 
 ance, there are a few other things depending on the attorney's 
 being an officer of the court. But, in most affairs, he is gov- 
 erned by the general law of agency, explained in the last 
 chapter. Thus, — 
 
 § 1129. Changing Attorney. — Since a principal can dis- 
 charge his agent at pleasure,* so can a client his attorney, or 
 substitute another ; simply, in the manner of doing it, remov- 
 ing any intervening liens, and otherwise conforming to the 
 law and to the rules of the court.^ Or, for the like reason, 
 and under like restrictions, the attorney can withdraw at 
 pleasure.® These are results derivable from the general law 
 
 1 Ante, § 12. 534 ; Penobscot Boom Corp. v. Lam- 
 
 2 "Wheeler v. Cox, 56 Iowa, 36; son, 16 Maine, 224. 
 Anonymous, 1 Salk. 86; Hamilton v. s foxier y. Morrill, 8 Texas, 153. 
 Wright, 37 N. Y. 502; Dobbins v. Du- ^ Ante, § 1050. 
 
 pree, 39 Ga. 394 ; People ;). Mariposa Co. ' Yoakley v. Hawley, 6 Lea, 670 ; 
 
 39 Cal. 683 ; Abbott v. Button, 44 Vt. Wells v. Hatch, 43 N. H. 246 ; Hazlett 
 
 546; Smith v. Stewart, 6 Johns. 34; u. Gill, 5 Rob. N. Y. 611; Sloo u. Law, 
 
 Manchester Bank v. Fellows, 8 Fost. 4 Blatch. 268 ; McLaren v. Charrier, 5 
 
 N. H. 302 ; Thomas v. Steele, 22 Wis. Paige, 530 ; Gibbons v. Gibbons, 4 Har- 
 
 207 ; Hellman v. McWhennie, 3 Rich. ring;. Del. 105. 
 
 364 ; Osbom v. Bank of United States, « Boyd v. Stone, 5 Wis. 240 ; United 
 
 9 Wheat. 738 ; Clark v. Willett, 35 Cal. States v. Curry, 6 How. U. S. 106 ; 
 
 Love V. Hall, 3 Yerg. 408. 
 
 453 
 
§ 1132 PARTIES AND OTHER PARTAKERS. [BOOK II. 
 
 of agency ; and the decisions of courts concerning them have 
 simply added to the evidences of the law, they have created 
 nothing. 
 
 § 1130. Other Deductions — are easy and numerous. But 
 a mere illustrative exposition, not a full one, being the pur- 
 pose of this chapter, let us pass to — 
 
 § 1181. Auctioneer: — 
 
 Defined. — An auctioneer is one who, dealing with assem- 
 bled persons competing, sells property to those who make or 
 accept the offers most favorable to the owners.^ Now, — 
 
 § 1132. Origin and Nature. — Auctions and auctioneers, — 
 the calling together of people and making sales to those who 
 will purchase on the best terms to the owners, — arise spon- 
 taneously out of the very nature of business. It would be 
 impossible, therefore, that there should not be a custom defin- 
 ing their methods and limits. And we have seen that they 
 are matter of public concern.^ Consequently it has been from 
 early times, and it remains, the practice to license approved 
 persons to be auctioneers, and forbid unlicensed ones to act 
 as such. The judges did not make this law, it came from the 
 people and from legislative power. The auctioneer is, on 
 general principles, entitled to be paid ; and usage, which 
 seems to have partly ripened into law, and partly to remain 
 
 • For the nature of legal definitions, he sells his own property. Bent v. 
 see ante, § 184, note. I have not ob- Cobb, 9 Gray, 397. Therefore the defi- 
 served in the books any satisfactory defi- nition may well be silent as to the mat- 
 nition of an auctioneer. Even Story ter of agenc}'. Nor is he the less an 
 puts what seems to have been meant for auctioneer though, selling his own prop- 
 a definition very loosely ; thus, " An erty, he conducts the competition by 
 auctioneer is a person who is authorized some method other than outcry. Hex 
 to sell goods or merchandise at public v. Taylor, McClel. 362, 13 Price, 636. 
 auction or sale for a recompense, or (as Story's definition is defective in not 
 it is commonly called) a commission." comprehending the auctioneer of real 
 Story Agency, § 27. ' My definition is estate. Emmerson v. Heelis, 2 Taunt, 
 silent as to his remuneration or the 38, 47 ; Dobell ». Hutchinson, 3 A. & E. 
 manner of it ; in which respect Story's is 355. It may be a question whether 
 to be preferred if this is really an ele- mine is not defective in not extending to 
 ment in the question. But though or- such a case as the letting out of the 
 dinarily an auctioneer, like any other board of paupers to the lowest bidder, 
 agent, is paid, he is not the less such if and various other cases of procuring a 
 he does the work gratuitously. The contract other than a purchase of prop- 
 State V. Rucker, 24 Misso. 557. Nor erty. 
 does he cease to be an auctioneer though ^ Ante, § 528. 
 
 454 
 
CHAPi XLI.] SPECIAL SORTS OP AGENTS. § 1134 
 
 matter for proof in each case, has fixed the form of payment 
 to be by a commission on the sales, and has not been alto- 
 gether silent as to the amount.^ 
 
 § 1133. Further of Rights and Duties. — In other respects, 
 the rights and duties of the auctioneer have become well 
 defined in the law ; but usage and judicial decision have so 
 grown up together that, as to some of them, it is not easy to 
 say how much had its origin in the one and how much in the 
 other. The auctioneer has a lien, for his commission and ex- 
 penses, on goods put into his hands for sale ; he has a special 
 ownership in them, and not the mere custody of an ordinary 
 agent or servant ; he may maintain against the purchaser a 
 suit for the price, though the owner is known ; and all this is 
 so even where he sells the goods on the owner's premises, to 
 bidders cognizant of the facts.^ Though these propositions 
 involve more or less of judicial decision, they are simply, so 
 far as they are not usage, deductions from usage ; proceed- 
 ing, not from judicial legislation, but from what is otherwise 
 established in the law. In respect of things not necessarily 
 modified by the peculiar usage, the relation of an auctioneer 
 to his employer is governed by the rules of agency laid down 
 in the last chapter. For example, — 
 
 § 1134. Viewed as Ordinary Agent. — Since the auctioneer 
 holds himself out as simply the seller of goods by auction,^ 
 he cannot without special authority — which, however, is in 
 practice often given — make a private sale ; * nor, except 
 under a custom, can he sell by auction on credit,^ nor can he 
 rescind a sale which he has made.^ Being an agent in whom 
 
 1 Robinson v. Green, 3 Met. 159, 161 ; Block, 19 Ark. 566 ; Hulse v. Toang, 16 
 Maltby v. Christie, 1 Esp. 340 ; Green Johns. 1 ; Minturn ti. Main, 3 Selden, 
 «. Bartlett, 14 C. B. n. s. 681; Succes- 220; Blood v. French, 9 Gray, 197; 
 sion of Navarro, 24 La. An. 105 ; Gi- Boinest v. Leignez, 2 Eich. 464 ; McMe- 
 rardey v. Stone, 24 La. An. 286. chen v. Baltimore, 3 Har. & J. 534. 
 
 2 Williama v. Millington, 1 H. Bl. * Story Agency, § 27 ; Marsh v. Jelf, 
 81; Mintum v. Main, 3 Selden, 220; 3 Fost. & F. 234; Daniel v. Adams, 
 Grice v. Kenrick, Law Rep. 5 Q. B. 340 ; Amb. 495. 
 
 Woolfe V. Home, 2 Q. B. D. 355 ; Bel- ^ Williams v. Evans, Law Rep. 1 
 
 ler V. Block, 19 Ark. 566; Hulse v. Q. B 352, 354; Sykes v. Giles, 5 M. & 
 
 Young, 16 Johns. 1 ; Flanigan v. CruU, W. 645. 
 
 53 111. 352. ° Boinest v. Leignez, 2 Rich. 464 ; 
 
 » Story Agency, § 27 ; Beller v. Nelson v. Aldridge, 2 Stark. 435. 
 
 455 
 
§ 1136 PARTIES AND OTHER PARTAKERS. [bOOK II. 
 
 is reposed a personal confidence,^ he cannot delegate his au- 
 thority to another ; ^ but, because it is a general principle of 
 the law that any act which one performs for another while 
 the two are together is the other's act as well as the personal 
 act of him who does it,^ the auctioneer may depute to another 
 person the making of the outcry and the swinging of the 
 hammer.* He must, like other agents, follow the instruc- 
 tions of the principal,* and must pay over moneys and other- 
 wise account to him.^ These are illustrations of the broader 
 truth, that an auctioneer is governed by the general law of 
 agency ; except as to the few particulars in which custom, 
 under judicial supervision, has built up a rule special to this 
 sort of agent. And there is, in this branch of the law, 
 nothing which can with any propriety be termed judicial 
 legislation. 
 
 § 1135. Broker: — 
 
 Defined. — ■ A broker is one who, as middleman, brings per- 
 sons together to bargain, or bargains for them, in the private 
 purchase or sale of property of any sort, not ordinarily in his 
 possession. There are various commonly recognized divisions 
 of this craft ; ^ such as bill and note broker, exchange broker, 
 insurance broker, merchandise broker, pawnbroker, real estate 
 broker, ship broker, stock broker.^ Hence, — 
 
 §1136. Functions — (Distinguished from Auctioneer). — A 
 broker has no special property in goods which he may be 
 authorized to sell, he must sell them as the principal's, and at 
 
 I Ante, § 1067. tracts between other persons, in matters 
 ^ Stone V. The State, 12 Misso. 400 ; of trade, commerce, or navigation, for a 
 Commonwealth v. Harnden, 19 Pick, compensation, commonly called broker- 
 482. age." Story Agency, § 28. And he 
 i* Ante, § 1047. quotes with approbation the definition of 
 * Commonwealth v. Hamden, supra. Tindal, C. J. ; thus, " A broker is one 
 6 Bash V. Cole, 28 N. Y. 261 ; Hood who makes a bargain for another, and 
 !'. Adams, 128 Mass. 207; Williams v. receives a commission for so doing; as. 
 Poor, 3 Cranch C. C. 251. for instance, a stock broker. But, in 
 ^ Tripp V. Barton, 13 R. I. 130; common parlance, one who receives pay- 
 Brown V. Staton, 2 Chit. 353. ment of freights for the ship owner, and 
 "> Boav. Law Diet. Brokers. negotiates for cargoes, is a broker." 
 8 The books give us various defini- Pott v. Turner, 6 Bing. 702, 706. And 
 tions of broker; "the true" one, says see MoUett v. Robinson, Law Eep. 7 
 Story, "seems to be, that he is an agent C. P. 84, 97. 
 employed to make bargains and con- 
 
 456 
 
CHAP. XLI.] SPECIAL SORTS OF AGENTS. § 1140 
 
 private sale, not at auction ; nor has he, on making a sale, 
 even implied authority to receive payment.^ He does not 
 commonly possess the right of general lien.^ Consequently — 
 
 § 1137. In General. — He is, as to most things, governed by 
 the general law of agency, explained in the last chapter. And 
 there are sometimes local usages, which should be taken into 
 the account. To illustrate the wny in which the law of the 
 subject has grown into its present shape would be little else 
 than a repetition of what has already been said in this chapter. 
 
 § 1138. Factor or Commission Merchant : — 
 
 Defined. — These terms are nearly or quite synonymous. 
 The former is the more common in the language of the law ; 
 the latter, in the language of commerce. The factor may be 
 authorized to buy, but commonly his function is simply to 
 sell ; and he is one to whom goods are consigned to be sold, 
 on commission, either in his own or the principal's name, — 
 the law vesting in him a special property therein.*^ 
 
 § 1139. How sell. — The factor cannot sell at auction, his 
 sales may be, and commonly are, in his own name ; and, in 
 the absence of any usage or agreement to the contrary, they 
 may be, if he pleases, on credit.* He cannot barter the 
 goods.^ Still, where not otherwise instructed, he may follow 
 any proper local usage, duly known and proved.^ 
 
 § 1140. Lien. — A factor often makes advances to his prin- 
 cipal. For which, for his commissions, and for any balance 
 due him, he has a lien on the goods in his possession, — dif- 
 
 1 Story Agency, § 28-32; Xenos v. Rep. 9 C. P. 470, 10 C. P. 354; Hop- 
 Wickham, Law Rep. 2 H. L. 296 ; Fair- kirk v. Bell, 4 Cranch, 164; Taylor v. 
 lie V. Fenton, Law Rep. 5 Ex. 169 ; Cal- Wells, 3 Watts, 65 ; Rapp v. Palmer, 3 
 der V. Dobell, Law Rep. 6 C. P. 486; Watts, 178; Smart v. Sandars, 3 C. B. 
 Baxter v. Duren, 29 Maine, 434 ; Touro 380. 
 
 u. Cassin, 1 Nott & McC. 173; McGav- < West Boylston Manuf. Co. v. 
 
 ock V. Woodlief, 20 How. U.S. 221; Searle, 15 Pick. 225; Goodenow v. 
 
 Colvin V. Williams, 3 Har. & J. 38 ; Tyler, 7 Mass. 36 ; Goldthwaite v. Mc- 
 
 Higgins V. Moore, 34 N. Y. 417 ; Kock Whortcr, 5 Stew. & P. 284; Byrne v. 
 
 V. Emmerling, 22 How. U. S. 69; Schwing, 6 B. Monr. 199; Baring v. 
 
 Bailey v. Chapman, 41 Misso. 536 ; Corrie, 2 B. & Aid. 137, 143. 
 
 Shepherd v. Redden, 5 Dutcher, 334. ^ Guerreiro v. Peile, 3 B. & Aid. 616. 
 
 2 Barry v. Boninger, 46 Md. 59. " D wight v. Whitney, 15 Pick. 179 ; 
 ' Story Agency, § 33-34 a ; Fuentes Ktheridge v. Binney, 9 Pick. 272 ; Clark 
 
 V. Montis, Law Rep. 3 C. P. 268, 4 C. P. v. Van Northwick, 1 Pick. 343 ; Goode- 
 93 ; Cole v. Northwestern Bank, Law now v. Tyler, supra. 
 
 457 
 
§ 1142 PARTIES AND OTHER PARTAKERS. [BOOK II. 
 
 fering herein from an ordinary agent.^ But, for this purpose, 
 he must have actual or potential possession of the goodg.^ 
 The lien is a personal privilege ; he may lose it by delivering 
 the things,** by otherwise voluntarily parting with his pos- 
 session,* or by tortiously pledging them.^ Now, — 
 
 § 1141. Legal Conclusions. ■ — Out of what thus appears to 
 have sprung up from usage, under the fosterings of judicial 
 decision, we may derive whatever is special to this class of 
 agents. For the rest, we have only to consult the general 
 law of agency. And all this is within explanations already 
 made concerning usage, which proceeds from the public, and 
 adjudication, which comes from the courts. 
 
 § 1142. The Doctrine of this Chapter restated. 
 
 From the elucidations of this chapter, we have a practical 
 view of the separate and connected forces,, other than legis- 
 lation, which, either actually, or according to popular ideas, 
 make law. In real truth, the people do, by their customs, 
 make it. They cannot, in this way, having invested the 
 legislature with all legislative power, enact a statute.^ But 
 that they still can, otherwise than through the legislature, 
 ordain what has the force of law, illustrates a general doc- 
 trine of the utmost importance in our jurisprudence. It is, 
 that the establishment of one thing is not the overthrow of 
 another evidently not meant to be discarded ; but, in such a 
 case, each stands as a limitation of, or exception to, the other. 
 Therefore if, before the establishment of our constitutions, it 
 had been the practice of the courts to create law by their 
 decisions, they might continue to do it. That, in truth, they 
 do not so proceed has already been sufficiently explained. 
 
 1 Kruger v. Wilcocks, 1 Keny. 32 ; Coit, 3 Selden, 288 ; Brown v. Wiggin, 
 Stevens w. Biller, 25 Ch. D. 31; Mat- 16 N. H. 312. 
 
 thews V. Menedger, 2 McLean, 145; ' Matthews u. Menedger, supra. 
 
 Jordan v. James, 5 Ohio, 88, 99 ; Stur- * Holly v. Huggeford, 8 Pick. 73. 
 
 gis V. Slacum, 18 Pick. 36, 40. ^ Jarvis v. Rogers, 15 Mass. 389, 
 
 2 Oliver v. Moore, 12 Heisk. 482; 396. 
 
 Burrus v. Kyle, 56 Ga. 24 ; Winter v. « Bishop Written Laws, § 36. 
 458 
 
CHjiP. XLII.] PERSONS IN PABTNEBSHIP. §1145 
 
 CHAPTER XLII. 
 
 PERSONS IN PAETNBRSHIP. 
 
 § 1143. Relations of Subject. — Business partnerships have 
 grown out of the same convenience and necessities of trade 
 as the special agencies treated of in our last chapter. And, 
 like them, they derive their legal rules chiefly from the gen- 
 eral law of agency, modified in some degree by usage, and 
 made exact by judicial decision. So that this chapter is 
 merely a continuation of the last ; and to it are equally 
 applicable the expositions concerning custom and judicial 
 legislation. 
 
 § 1144. On what Principle. — The principle governing con- 
 tracts by partners is, that, within the scope of the partnership 
 business, the one who makes the contract is, while acting per- 
 sonally for himself, the agent for the rest.^ And where a 
 liability is sought to be cast on one as being a partner with 
 another who primarily incurred it, the true test is, whether 
 or not he either directly or impliedljr constituted the other 
 his agent, with powers extending to the transaction.^ Such 
 being the doctrine nearly or quite universal, the authority of 
 a partner to bind the firm is mainly a deduction from what is 
 set down in our chapter before the last. Thus, — 
 
 § 1145. One Partner's Power. — As to third persons, a single 
 partner can bind the firm by any simple contract within the 
 sphere of its operations as presented to the public? But, as 
 
 1 Smith Con. 2d Eng. ed. 339; Pa. 498; Bowman v. Cecil Bank, 3 
 
 Wheatxiroft v. Hickman, 9 C. B. N. 8. Grant, Pa. 33. 
 
 47, 8 H. L. Cas. 268, 7 Jur. N. s. 105; 2 BuUen v. Sharp, Law Eep. 1 C. P. 
 
 Baird's Case, Law Rep. 5 Ch. Ap. 725, 86, 12 Jur. N. 8. 247; Cox v. Hickman, 
 
 733 ; Yeager v. Wallace, 7 Smith, Pa. 8 H. L. Cas. 268. 
 
 365 ; Loudon Savings Fund Society v. ' Catlin v. Gilders, 3 Ala. 536 ; Frost 
 
 Hagerstown Savings Bank, 12 Casey, v. Hanford, 1 E. D. Smith, 540; Liv- 
 
 459 
 
§ 1147 PARTIES AND OTHER PARTAKERS. [bOOK II. 
 
 between its members, the case is different. Subject to' limita- 
 tions growing out of the doctrine of agency coupled with an 
 interest,! a^jj perhaps other limitations inherent in the nature 
 of the partnership, the authority may be withheld from one 
 by the others, or after being given it may be revoked even by 
 a single dissenting member ; whereupon a third person, who 
 has notice of this, cannot make with the disqualified partner 
 a contract by which the firm will be bound.^ These are obvi- 
 ous deductions from the general law of agency, explained in 
 the chapter before the last. Again, — 
 
 § 1146. Undisclosed Partners — (Suing them). — We there 
 saw that, when an agent making a contract in his own name 
 does not disclose his agency, his principal, on being discovered, 
 is liable to be sued thereon.^ Applying this rule to the matter 
 now in hand, one who in ignorance of a partnership bargains 
 with a member in an affair pertaining to it, supposing himself 
 to be giving credit only to the individual, — or deals with an 
 ostensible firm while there is in fact a silent partner, — may, 
 if he chooses, on learning the facts, sue the firm in the one 
 case, or the whole firm including the silent partner in the 
 other, upon the contract.* But, by the common law, if he 
 recovers judgment against a part of the persons who are thus 
 joint promisors, whereby the original debt is merged in the 
 record, he is too late to sue the party not theretofore known.^ 
 In like manner, — 
 
 §1147. Bringing Suit. — Under facts of this sort, a suit 
 
 ingston v. Roosevelt, 4 Johns. 251 ; ' Ante, § 1079. 
 
 Nichols V. James, 130 Mass. 589 ; * Beckham v. Drake, 9 M. & W. 79 ; 
 
 ThompsonK.ToledoBank.lllU. S. 629. Drake v. Beckham, 11 M. & W. 315; 
 
 1 Ante, §1051. Holden v. Bloxum, 35 Missis. 381; 
 
 ^ Langan v. Hewett, 13 Sm. & M. Reynolds v. Cleveland, 4 Cow. 282; 
 
 122; Johnston v. Dutton, 27 Ala. 245; Roth v. Moore, 19 La. An. 86; Tucker 
 
 Leavitt v. Peck, 3 Conn. 124; Bull v. v. Peaslee, 36 N. H. 167; Baxter v. 
 
 Harris, 18 B. Monr. 195; Gallway v. Clark, 4 Ire. 127; Given v. Albert, 5 
 
 Mathew, 10 East, 264; Willis w. Dyson, Watts & S. 333; Bisel v. Hobbs, 
 
 1 Stark. 164. See Johnston v. Bern- 6 Blackf. 479; Griffith v. Buffum, 22 
 
 heim, 86 N. C. 339 ; Wilkins y. Pearce, Vt. 181; Dishon v. Schorr, 19 III. 
 
 5 Denio, 541 ; s. c. nom. Pearce v. Wil- 59. 
 
 kins, 2 Comst. 469. A minuter examina- ' Ante, § 877 ; King v. Hoare, 13 M. 
 
 tion of this question in the books will & W. 494 ; Kendall «. Hamilton, 3 C. P. 
 
 disclose some discords in the decisions, D. 403. 
 and some judicial doubts, 
 
 460 
 
CHAP. XLII.] PERSONS IN PARTNEESHIP. § 1149 
 
 against the party contracting", brought on behalf of the fii'm,^ 
 may, at pleasure, be in the name of the entire firm, or of the 
 individual, or part of the firm, wherewith the contract was in 
 fact made.^ So, — 
 
 § 1148. Notice on Retiring. — As an ordinary principal, on 
 putting an end to the agency, must, to avoid liability to third 
 persons afterward in ignorance dealing with the agent, give 
 due notice of its termination,^ so must a retiring partner 
 give notice, or he will be responsible to those who subse- 
 quently, not knowing of the dissolution of the firm, bargain 
 with its remaining members.* For protection against parties 
 not theretofore having transactions with the partnership, it 
 may be a general notice to the public ; ^ against former cus- 
 tomers, there must be actual notice to them.® Or, even as 
 to the latter, it will suffice if in any way knowledge of the 
 dissolution actually comes to them, or they are duly put on 
 inquiry.'' 
 
 § 1149. How Sign. — A partner, in executing a simple con- 
 tract in writing to bind the firm, usually signs the firm's 
 name. But it is equally good in law, if, instead of this, he 
 writes the names of the individual partners.* Still the im- 
 plied authority of one partner to sign for another is to employ 
 therein the name which the partnership holds out to the 
 
 ' Ante, § 1080. parties, in all circumstances required. 
 
 2 Cothay v. Fennell, 10 B. & C. 671 ; Gaar v. Huggins, 12 Bush, 259. 
 Ward 17. Leviston, 7 Blackf. 466 ; Wood ^ Haynes v. Carter, 12 Heisk. 7 ; Gil- 
 
 V. O'Kelley, 8 Gush. 406; Clarkson v. christ v. Brande, 58 Wis. 184; Austin 
 
 Carter, 3 Cow. 84; Clark v. Miller, 4 v. Holland, 69 N. Y. 571 ; In re Krue- 
 
 Wend. 628 ; Rogers v. Kichline, 12 Ca- ger, 2 Low. 66 ; Holland v. Long, 57 
 
 sey, Pa. 293 ; Curtis v. Belknap, 21 Vt. Ga. 36 ; Stewart v. Sonnebom, 51 Ala. 
 
 433; Trottw. Irish, 1 Allen, 481. 126; Shamburg v. Ruggles, 2 Norris, 
 
 8 Ante, § 1105. Pa. 148 ; Graham v. Hope, Peake, 154. 
 
 * Kenney u. Altvater, 27 Smith, Pa. ' Uhl v. Bingamau, 78 Ind. 365; 
 
 34; Carmichael v. Greer, 55 Ga. 116; Laird «. Ivens, 45 Texas, 621 ; Lovejoy 
 
 Gammon v. Huse, 100 111. 234; Rich- v. Spafford, 93 U. S. 430; Gilchrist i\ 
 
 ards V. Hunt, 65 Ga. 342 ; Richards v. Brande, supra ; Austin v. Holland, 
 
 Butler, 65 Ga. 593 ; Uhl v. Harvey, 78 supra. 
 Ind. 26. 8 Patch v. Wheatland, 8 Allen, 102 ; 
 
 6 Backus V. Taylor, 84 Ind. 503 ; Holden v. Bloxum, 35 Missis. 381 ; Mc- 
 
 Godfrey ». TurnbuU, 1 Esp. 371; Gregor v. Cleveland, 5 Wend. 475; 
 
 Wright V. Pulham, 2 Chit. 121 ; Gor- Norton v. Seymour, 3 C. B. 792. And 
 
 ham V. Thompson, Peake, 42. Nor, see Maynard v. Fellows, 43 N. H. 255. 
 
 indeed, is even such notice, as to such 
 
 461 
 
§ 1151 PARTIES AND OTHER PARTAKERS. [BOOK II. 
 
 public; and any such or so great departure as infers a trans- 
 action not on account of the particular firm, will leave the 
 signature obligatory only on him who executes it.^ This 
 question is partly for the jury ; yet, within the rule thus 
 appearing, " The Newcastle Coal Company " is not the same 
 name as " The Newcastle and Sunderland Wall's End Coal 
 Company;"^ nor is "John Blurton & Company" the same 
 as " John Blurton." ^ For practical reasons, a seal should 
 not be attached unless required by law.; and, when it is, the 
 proper formalities should be observed. Thus, — 
 
 § 1150. Instruments under Seal : — 
 
 How Practically. — Whatever be the strict law as to the 
 various possible methods of executing a specialty by a part- 
 nership, practically the individual names of the partners 
 should be given in the body of the instrument, with the 
 recitation that they are partners composing a . firm also 
 named ; and each partner should with his own hand sub- 
 scribe his name opposite his several seal. This will cer- 
 tainly be right, the proof be easy, and no unpleasant 
 questions of law or fact can follow.* Inquiring, next, after 
 the ' indispensahle, — 
 
 § 1151. Power of One Partner. — Since a partner, acting for 
 his firm, binds the other members simply because he is their 
 agent,^ it follows that he cannot validly execute for all an 
 instrument under seal ; except pursuant to a sealed authori- 
 zation,® — a thing not within the ordinary course of part- 
 nership dealings. So that, as, for example, the title to real 
 estate does not pass without deed, one partner cannot convey 
 away, either absolutely or in mortgage, the firm's lands ; his 
 deed transmitting nothing beyond his own interest.^ Nor is 
 this otherwise though the partnership articles are sealed; 
 "unless," said Lord Kenyon, "a particular power be given 
 
 1 Faith V. Eichmond, 11 A. & E. ^ Ante, § 1143, 1144. 
 339, 341, 342. 6 Ante, § 1045. 
 
 2 lb. ' Goddard v. Renner, 57 Ind. 532 ; 
 8 Kirk V. Blurton, 9 M. & W. 284. Printup ». Turner, 65 Ga. 71. See Chit- 
 * And compare with ante, § 111, tenden ». German-American Bank, 27 
 
 112, 116, 342-348, 357, 362, 426, 772- Minn. 143; post, § 1152. 
 775. 
 
 462 
 
CHAP. XLII.] 
 
 PERSONS IN PARTNEBSHIP. 
 
 §1152 
 
 for that purpose."^ If the partners are together, and one 
 with the concurrence of the rest signs the firm's name oppo- 
 site several seals or one, it is good ; ^ because, by reason of 
 the presence,^ the act of the one is the act of all.* 
 
 § 1152. XTnautborized Sealing, so not Firm's Deed. — If an 
 ordinary agent, with power to execute for his principal a 
 simple contract but not a specialty, affixes a seal, it is rejected 
 as surplusage, and the instrument takes effect as an unsealed 
 written contract.^ Then, if a partner is the agent, not duly 
 authorized by his copartners, but acting both for himself and 
 them, how is it? We come here upon an apparent chaos in 
 the authorities. A written contract will always be so con- 
 strued as, if possible, to have legal effect, and carry out the 
 manifest purpose of the parties.® But where a deed is meant 
 to be that of an entire firm, and in law it can be that only of 
 one member, this rule is not satisfied if it is interpreted as the 
 
 1 Harrison v. Jackson, 7 T. R. 207, 
 210 ; McCuUough v. Sommerville, 8 
 Leigh, 415; Gerard v. Basse, 1 Dall. 
 119; Trimble v. Coons, 2 A. K. Mar. 
 375 ; Lambden v. Sharp, 9 Humph. 224 ; 
 Hart V. Withers, 1 Pa. 285 ; McDonald 
 V. Eggleston, 26 Vt. 154 ; Pierson u. 
 Hooker, 3 Johns. 68 ; Donaldson v. 
 Kendall, 2 Ga. Dec. 227 ; Napier v. Cat- 
 ron, 2 Humph. 534; Morris v. Jones, 4 
 Harring. Del. 428 ; Henry v. Gates, 26 
 Misso. 315. On the other hand, not 
 quite consistently with this doctrine or 
 other sound legal principle, there are 
 cases which seem to hold that, if there 
 is a prior oral authority or subsequent 
 oral ratiiication from the other partners, 
 the instrument will constitute the firm's 
 deed. Grady v. Robinson, 28 Ala. 289 ; 
 Herbert v. Hanrick, 16 Ala. 581 ; Drum- 
 right V. Philpot, 16 Ga. 424; Shiriey 
 V. Fearne, 33 Missis. 653; Haynes v. 
 Seachrest, 13 Iowa, 455; Ely i>. Hair, 16 
 B. Monr. 230 ; Pike v. Bacon, 21 Maine, 
 280; Cady v. Shepherd, 11 Pick. 400; 
 Clement v. Brush, 3 Johns. Cas. 180; 
 Swan V. Stedman, 4 Met. 548 ; Fox v. 
 Norton, 9 Mich. 207 ; Gwinn v. Rooker, 
 24 Misso. 290 ; Smith v. Kerr, 3 Comst. 
 
 144 ; Gram v. Seton, 1 Hall, 262 ; 
 Bond V. Aitkin, 6 Watts & S. 165; 
 Johns V. Battin, 6 Casey, Pa. 84 ; Her- 
 zog V. Sawyer, 61 Md. 344 ; Lowery v. 
 Drew, 18 Texas, 786; Wilson ». Hun- 
 ter, 14 Wis. 683. And see Walsh v. 
 Lennon, 98 111. 27 ; post, § 1167-1172. 
 
 2 Ball V. Dunsterville, 4 T. R. 313 ; 
 Day V. LafFerty, 4 Pike, 450 ; Lee v. On- 
 stott, 1 Pike, 206 ; Henderson v. Barbee, 
 6 Blackf. 26 ; Price v. Alexander, 2 
 Greene, Iowa, 427. 
 
 8 Ante, § 345, 1047, 1048. 
 
 * And see United States v. Astley, 3 
 Wash. C. C. 508 ; Fleming v. Dunbar, 
 2 Hill, S. C. 532 ; Modisett v. Lindley, 
 2 Blackf. 119 ; Posey v. Bullitt, 1 Blackf. 
 99 ; Fichthorn v. Boyer, 5 Watts, 159; 
 Mackay v. Bloodgood, 9 Johns. 285; 
 Little V. Hazzard, 5 Harring. Del. 291. 
 
 6 Ante, § 111, 1046, 1049. 
 
 8 Ante, § 380, 383, 384, 391, 394 ; 
 2 Saund. Wms. ed. 96 6, note ; Randel v. 
 Chesapeake & Delaware Canal, 1 Har- 
 ring. Del. 151 ; Stockton v. Turner, 7 
 J. J. Mar. 192; Bush v. Watkins, 14 
 Beav. 425 ; Milbourne v.' Simpson, 2 
 Wils. 22. 
 
 463 
 
§ 1153 PARTIES AND OTHER PARTAKERS. [BOOK II. 
 
 act of the one. In such a case, assuming the partner not to 
 be authorized to make even a simple contract binding the 
 rest, the whole would, in reason, seem to be void or voidable.^ 
 But, since a writing which was intended to be a deed of 
 realty, yet is imperfect from want of a seal, is in law an 
 agreement to convey ,2 — in other words, a conveyance in 
 equity, — it would seem to follow that a deed of partnership 
 lands, from a partner who had an unsealed authority, might 
 perhaps be construed as transmitting a legal title from him, 
 and an equitable from the other partners. Still, as plainly 
 he meant to stand simply on an equality with them, it may 
 be the sounder interpretation to reject his seal with theirs ; 
 so that, as to all, the effect will be an equitable bargaining 
 away of the land. These questions, and analogous ones, pre- 
 senting many varying aspects, are inherently difficult because 
 of the conflicts of legal principles involved in them.^ Some 
 of the adjudged cases are cited in the note.* The just solu- 
 tion may not always be the same in States wherein specialties 
 have been reduced to the analogies of simple contracts, as in 
 those where the purer common law prevails. 
 
 § 1153. The Doctrine of this Chapter restated. 
 
 The power of partners to bind one another by contract per- 
 tains to the law of agency. Each acts as agent for the others, 
 and principal for himself. But the agency does not extend 
 to the making of specialties; which, therefore, though re- 
 lating to the partnership business, should be executed by the 
 several members of the firm as individuals. Undoubtedly, 
 if they chose, they could, in their articles of copartnership, 
 
 1 Ante, § 347, 348. Williams, 40 Ala. 561 ; McCuUongli v. 
 
 2 Ante, § 394. Sommerville, 8 Leigh, 415 ; Daniel v. To- 
 ' Ante, § 994, note. ney, 2 Met. Ky. 523 ; Hoskinson ». Eliot, 
 * Banorgee v. Hovey, 5 Mass. 11 ; 12 Smith, Pa. 393 ; Dodge v. McKay, 4 
 
 Dillon V. Brown, 11 Gray, 179 ; Milton Ala. 346 ; Scott ». Dansby, 12 Ala. 714; 
 
 V. Mosher, 7 Met. 244 ; Schmertz v. Massey v. Pike, 20 Ark. 92 ; Smith v. 
 
 Shreeve, 12 Smith, Pa. 457; Lucas v. Tupper, 4 Sm. & M. 261 ; Turbeville ». 
 
 Darien Bank, 2 Stew. 280; Human Ryan, 1 Humph. 113. 
 V. CuniSe, 32 Misso. 316; Gunter v. 
 
 464 
 
CHAP. XLII.] PERSONS IN PARTNERSHIP. § 1153 
 
 by an express provision, authorize each partner, or a particu- 
 lar one, to enter into contracts under seal in behalf of all, pro- 
 vided the articles were themselves under seal. This would 
 not be convenient for persons dealing with the firm ; because, 
 in prudence, he who accepts a sealed instrument, executed 
 by any agent, should have under his control the means of 
 proving the agency. 
 
 In simple contracts, which constitute the ordinary bargain- 
 ings of partners, there are no similar technical rules ; but the 
 contract of one, made in the firm's name, within the scope 
 of the partnership business, has precisely the same effect as 
 though signed by all. 
 
 30 465 
 
§ 1157 PARTIES AND OTHER PARTAKERS. [BOOK II. 
 
 CHAPTER XLIII. 
 
 OTHER UNINCOKPORATB ASSOCIATIONS. 
 
 § 1154. Compared with Fartnersbips. — While partners con- 
 tract under the general law of agency, slightly modified by 
 such usages and judicial determinations as relate to this 
 special branch of it,^ associations which are neither part- 
 nerships nor corporations contract under the same general 
 law ; and the modifying usages and decisions, if any, are 
 those which concern the particular sort of association.^ 
 Moreover, — 
 
 § 1155. Statutes. — In England and generally in our States, 
 there are statutes more or less regulating various classes of 
 voluntary associations ; some making those of the particular 
 sort quasi corporations, some providing a special manner of 
 suing them, some, — but the provisions are so differing that 
 even a general enumeration is not here desirable. The prac- 
 titioner should look carefully, under this head, into the stat- 
 utes of his own State ; but, in a work like the present, any 
 attempt to help him therein would result in more confusion 
 than profit. Leaving out of view these statutes, — 
 
 § 1156. Partnerships by other Names. — There are associa- 
 tions which, while not called partnerships, are such in law ; 
 for example, joint-stock companies,^ and there are others.* 
 The doctrines of this chapter do not apply to them. 
 
 § 1157. Members not bind Each Other. — Mere membership, 
 
 1 Ante, § 440, 1143, 1144. gan, 7 Wend. 539, 542; Cross v. Jack- 
 
 ^ See the whole chapter, ante, § 438- son, 5 Hill, N. Y. 478, 480 ; In re Fry, 
 
 460. 4 Philad. 129. 
 
 8 Townsend v. Goewey, 19 Wend. * Cutler v. Thomas, 25 Vt. 73; 
 
 424, 428; Williams v. Bank of Michi- Wells in Gates, 18 Barb. 554. 
 466 
 
CHAP. XLIII.] OTHERS UNINCORPOEATE. § 1159 
 
 in an association of the sort we are now considering, gives 
 the member no authority to bind either another member or 
 the association at large by any contract.^ But membership 
 may, in a particular case, be an element which, added to 
 other facts, will create such authority or a presumption there- 
 of. Thus,— 
 
 § 1168. Uluatrations. — If persons associate to procure a 
 charter for a bank, then, at a regular meeting not attended 
 by all, those present appoint an agent to apply to the legisla- 
 ture for the charter, — a step necessarily contemplated in the 
 very act of so associating, — whereupon the agent performs the 
 contemplated service without protest from those who were 
 not present, the latter may be holden jointly with the others 
 to pay him .2 But the mere unaided fact that a voluntary 
 association appoints a committee, and the committee incurs a 
 debt, will not charge a member who was not present at its 
 appointment.^ Now, — 
 
 § 1159. Rule as to Liability. — From the reason of the thing 
 and from the adjudications, not attempting to enter largely 
 into the facts of particular cases, we may derive the following. 
 Where, from the articles of association, if such there are, 
 from the act of the individual member at or before the making 
 of a contract, from his subsequent acquiescence with full 
 knowledge, from his appropriating to himself some benefit 
 therefrom, or from any other fact, it appears either that his 
 will originally concurred in the bargaining, or in the authori- 
 zation of an agent who did it, or that afterward he volun- 
 tarily took therefrom a benefit out of which the law could 
 create a promise, or estopped himself to deny his obligation, 
 he will be holden ; in other circumstances, he will not be.* 
 Thus,— 
 
 1 Todd w. Emly, 7 M. & W. 427; prudence that a proposition so wide as 
 
 8. c. after a new trial, 8 M. & W. 505, this should be sustainable by a reference 
 
 510 ; Flemyng v. Hector, 2 M. & W. 1 72 ; to any particular case. Ante, § 1 9, 184, 
 
 Crum's Appeal, 16 Smith, Pa. 474; note, 217, note, 369. The reader can 
 
 Downing v. Maun, 3 E. D. Smith, 36. consult the cases cited to the other sec- 
 
 " Sproat V. Porter, 9 Mass. 300. tious ; and, for further illustrations. 
 
 And see Newell v. Borden, 128 Mass. 31. Abels v. McKeen, 3 C. E. Green, 462 ; 
 
 8 Volgeru. Ray, 131 Mass. 439. Penfield v. Skinner, 11 Vt. 296; Cross 
 
 * It is not in the nature of our juris- v. Williams, 7 H. & N. 675 ; Austin v. 
 
 467 
 
§ 1164 PARTIES AND OTHER PARTAKERS. [BOOK II. 
 
 § 1160. Employing. — Officers or members of an unincorpo- 
 rate religious society are individually holden to pay a clergy- 
 man or other employee whom they personally hire.^ So — 
 
 § 1161. Any Obligation. — A member who votes for any 
 expenditure, or otherwise personally concurs in any act of 
 contracting, whether performed directly or through an agent, 
 is responsible as a joint promisor with the rest.^ Again, — 
 
 § 1162. Articles of Association. — These, or any like agree- 
 ment between the members, maj'^ authorize a particular of&cer, 
 member, or third person to make contracts for the associa- 
 tion ; whereupon all will be bound by them when made.^ 
 On the other hand, the nature of a bargaining may be of a 
 sort to hold the members to the contracting third person, 
 even contrary to such articles or agreement.* 
 
 § 1163. Form of Contract. — One contracting in behalf of 
 a voluntary association may, like any other agent,* bind him- 
 self personally by the special words which he employs.^ 
 
 § 1164. Tlie Doctrine of this Chapter restated. 
 
 Persons who, without an act of incorporation, enter into an 
 association, lose thereby none of their powers to obligate 
 themselves individually by contract. Moreover, like unasso- 
 ciated persons, they are not holden by contracts which others 
 make in their names, except from prior authority or subse- 
 quent ratification. Still the authority may be given in any 
 of the ways known to the law of agency. And the doctrines 
 of ratification, estoppel, and law-created contracts apply to 
 these association dealings, the same as to others. To add or 
 repeat illustrations, in this place, would be superfluous. 
 
 Searing, 16 N. Y. 112; Bennett v. ' Cockerell w. Aucompte, 2 C. B. n. 6. 
 
 Wheeler, 12 La. An. 763 ; Barry v. Nuck- 440 ; Hall w. Thayer, 12 Met. 130 ; Tyr- 
 
 olls, 2 Humph. 324 ; Lake v. Munford, 4 rell v. Washburn, 6 Allen, 466 ; Wells ». 
 
 Sm. & M. 312 ; Wells v. Turner, 16 Md. Gates, 18 Barb. 554. 
 
 133. « Beaver v. McGrath, 14 Wright, Pa. 
 
 1 Thompson v. Garrison, 22 Kan. 765. 479 ; Dow v. Moore, 47 N. H. 419 ; 
 
 2 Bay V. Powers, 134 Mass. 22 ; Rob- Sullivan v. Campbell, 2 Hall, 271 ; 
 inson v. Bobinson, 1 Fairf. 240 ; Freden- Henry v. Jackson, 37 Vt. 431. 
 
 dall 0. Taylor, 23 Wis. 538 ; Dow v. « Ante, § 1077. 
 
 Moore, 47 N. H. 419. « Ulam v. Boyd, 6 Norris, Pa. 477. 
 
 468 
 
CHAP. XLIT.] BLANKS AND FILLING THEM. § 1167 
 
 CHAPTER XLIV. 
 
 BLANKS HT the WEITTEN CONTRACT AND PILLING THEM. 
 
 § 1165, 1166. Introduction. 
 1167-1172. Specialties. 
 1173-1175. Simple Contracts. 
 
 1176. Doctrine of Chapter restated. 
 
 § 1165. Diversities. — We have in the subject of this chap- 
 ter another branch of the law of agency. It introduces us to 
 some judicial differences ; and, by all opinions, it includes 
 something of the law of estoppel. Moreover, the rules are 
 not alike in simple contracts and specialties.^ Hence, — 
 
 § 1166. How Chapter divided. — We shall consider this 
 subject as to, I. Specialties ; H. Simple Contracts. 
 
 I. Specialties. 
 
 § 1167. Unfilled Blanks. — A specialty, otherwise duly exe- 
 cuted and delivered, is good in spite of unfilled blanks in it, 
 if interpretation ^ can ascertain and make definite its mean- 
 ing ; 3 if not, it is void.* Thus, a bond conditioned for the 
 payment of board is not invalidated by a blank for the sum 
 per week ; since it holds the party to pay a reasonable sum.^ 
 
 ^ In re Tahiti Cotton Co. Law Eep. 155. In these cases, the filling of the 
 
 17 Eq. 273. blank with what interpretation puts in 
 
 2 Ante, § 383, 390. does not yitiate the instrument. lb. ; 
 
 * Eagleton v. Gutteridge, 11 M. & ante, § 751, 755. 
 W. 465 (explained in Burns v. Lynde, * Consols Ins. Assoc, v. Newall, 3 
 
 6 Allen, 305, 310) ; Whiting v. Daniel, Fost; & F. 130; Hibblewhite v. McMo- 
 
 1 Hen. & Munf. 390; Harrhy v. Wall, 1 rine, 6 M. & W. 200, 4 Jur. 769. 
 B. & Aid. 103 ; Sellin v. Price, Law * Lunatic Asylum v. Douglas, 77 
 
 Rep. 2 Ex. 189; Devin v. Himer, 29 Misso. 647. 
 Iowa, 297 ; Vose v. Dolan, 108 Mass. 
 
 469 
 
§ 1168 PAETIES AND OTHER PARTAKERS. [BOOK 11. 
 
 But any specialty wherein the name of the obligee or grantee 
 is in blank, with nothing in any part of it from which inter- 
 pretation can supply the name, is void.^ So likewise a bond 
 
 for the payment of dollars is of no effect, being simply 
 
 an undertaking to pay nothing ; and oral evidence ^ cannot 
 change this.^ Yet if one obligor subscribes a sealed instru- 
 ment in blank, then another obligor fills the blank and exe- 
 cutes it, the latter is holden.* Hence the signing, the sealing, 
 the delivering, and the receiving of a specialty which is void 
 because of its blanks, are severally void acts. Now, — 
 
 § 1168. Authority to fill Blanks. — It being established doc- 
 trine that an authority to execute a sealed instrument in the 
 party's absence must be under seal,^ and it being an axiomatic 
 truth that the whole of a thing comprehends each particular 
 part, the consequence necessarily is, that, in the absence of 
 the party, no other person can fill such a blank in a specialty 
 as renders it void, except under a sealed authorization.® And 
 so are the English and a large proportion of the American 
 adjudications.^ For example, a fully executed deed, with the 
 name of the obligee or grantee in blank, is not validated by 
 an agent's filling the blank under an authorization not sealed.^ 
 Still there are American cases which, while not rejecting the 
 entire doctrine requiring the authority to be under seal, deny 
 this part of it; and, in the language of a learned judge, 
 " hold, that parol authority is sufficient to authorize the fill- 
 
 1 Preston v. Hull, 23 Grat. 600 ; the grantor, its effect must be to over- 
 
 Wunderlin v. Cadogan, 50 Cal. 613; throw the doctrine that an authority 
 
 Barden v. Southerland, 70 N. C. 528 ; to make a deed must be given by deed." 
 
 Viser v. Rice, 33 Texas, 139 ; Chase v. Chapman, J. in Bums v. Lynde, 6 Al- 
 
 Palmer, 29 111. 306 ; Adamson v. Hart- len, 305, 311. 
 
 man, 40 Ark. 58 ; Whitaker v. Miller, ' Burns v. Lynde, supra, where the 
 
 83 111. 381. See Bishop v. Morgan, 11 principal English and many American 
 
 Mod. 275. authorities are collected and considered; 
 
 a Ante, § 169. Hibblewhite k. McMorine, 6 M. & W. 
 
 8 Copeland v. Cunningham, 63 Ala. 200; Davidson v. Cooper, U M. & W. 
 
 394, 397 ; Canal, &c. Railroad v. Arm- 778, 793 ; Powell v. Duff, 3 Camp. 181 ; 
 
 strong, 27 La. An. 433. Wunderlin v. Cadogan, 50 Cal. 613; 
 
 * Penn v. Hamlett, 27 Grat. 337 ; Preston v. Hull, 23 Grat. 600 ; Adamson 
 
 Furnas w. Dm-gin, 119 Mass. 500, 509. v. Hartman, 40 Ark. 58. 
 
 6 Ante, §1045. 8 Preston v. Hull, 23 Grat. 600; 
 
 ^ " If such an act can be done nnder Penn v. Hamlett, 27 Grat. 337, 342 ; 
 
 a parol agreement, in the absence of Basford v. Pearson, 9 AUen, 387. 
 
 470 
 
CHAP. XLIV.] BLANKS AND PILLING THEM. 
 
 §1169 
 
 ing of a blank in a sealed instrument, and that such authority 
 may be given in any way by which it might be given in case 
 of an unsealed instrument." ^ Not all the adjudications on 
 this side of the question so squarely ignore the reasoning 
 necessary, as we have just seen, to be confronted to reach 
 this conclusion ; but some of them give a specially wide scope 
 to another doctrine which, within what are deemed its just 
 limits, all accept ; namely, — 
 
 § 1169. Estoppel. — Under various actual and supposable 
 facts, the filling of blanks in a specialty without sealed au- 
 thorization will be within the law of equitable estoppel, 
 explained in a preceding cliapter.^ As this estoppel can take 
 effect only where there are in combination a misrepresenta- 
 tion contrary to duty,^ an evil purpose in the party to be 
 estopped,* and a reliance on the falsehood by the other party 
 to his injury," there can be no estoppel, in the cases now 
 under consideration, where the one availing himself of the 
 instrument knew that the filling of the blank was done by an 
 
 1 Mitchell, J. in The State v. Young, 
 23 Minn. 551, 556, 557. He refers to 
 Drnry v. Foster, 2 Wal. 24 ; South Ber- 
 wick V. Huntress, 53 Maine, 89 ; Wool- 
 ley V. Constant, 4 Johns. 54 ; Ex parte 
 Kerwin, 8 Cow. 118; Wiley v. Moor, 
 17 S. & R. 438; Field v. Stagg, 52 
 Misso. 534 ; Vliet v. Camp, 13 Wis. 
 198; Smith v. Crooker, 5 Mass. 538. 
 Doubtless most of these cases are perti- 
 nent to the proposition to which the 
 learned judge here cites them. In 
 Bnms V. Lynde, 6 Allen, 305, 308, de- 
 cided by the Massachusetts court subse- 
 quently to Smith V. Crooker, the direct 
 opposite of this Minnesota doctrine 
 was, on careful consideration, adjudged. 
 And the court observed of Smith v. 
 Crooker, that "a treasurer had made 
 a bond in which the name of a surety 
 had been left blank ; and after delivery 
 it was filled up. The bond was held 
 good, on the authority of several an- 
 cient cases, the fact being specially no- 
 ticed that the alteration was immaterial." 
 See ante, § 1167. Though this case 
 cannot be counted on the side to which 
 
 it is thus cited, there are doubtless other 
 American ones, besides the above, which 
 can be. The practitioner will carefully 
 consult, on this question, the decisions 
 of his own State, and they will be be- 
 fore him ; so I shall not multiply these 
 references. See, on the one side or the 
 other, Viser v. Rice, 33 Texas, 139 ; 
 Cross V. State Bank, 5 Pike, 525 ; Penn- 
 sylvania Ins. Co. V. Dovey, 14 Smith, 
 Pa. 260 ; Davenport v. Sleight, 2 Dev. 
 & Bat. 381 ; Byers v. McClanahan, 6 
 Gill & J. 250 ; McClain v. McClain, 52 
 Iowa, 272 ; United States v. Nelson, 2 
 Brock. 64 ; Gibbs v. Frost, 4 Ala. 720, 
 728. I add some Illinois cases, a part 
 of which proceeded largely on the doc- 
 trine of estoppel ; thus, — People v. Or- 
 gan, 27 111. 27, 29, afterward overruled ; 
 Wilson V. South Park, 70 111. 46 ; Mc- 
 Nab V. Young, 81 111. 11 ; Whitaker v. 
 Miller, 83 111. 381 ; Wade v. Bunn, 84 
 111. 117 ; Chicago v. Gage, 95 III. 593. 
 
 2 Ante, § 264 et seq. 
 
 8 Ante, § 288 et seq. 
 
 * Ante, § 292 et seq. 
 
 6 Ante, § 296. 
 
 471 
 
§ 1170 PARTIES AND OTHER PARTAKERS. [bOOK II. 
 
 authority not under seal.^ In like manner, after the blank 
 has been filled without a sealed authority, a mere unsealed 
 declaration by the principal, approving of the agent's act in 
 filling it, will not amount to the required estoppel.^ But, not 
 to descend to the particulars of the somewhat conflicting 
 opinions and adjudications, the estoppel takes place wherever 
 the principal — some would say, by his gross carelessness, 
 though he does not mean to defraud,^ yet, by all opinions, 
 fraudulently — so conducts as to create in the one accepting 
 the specialty the belief that it has been duly executed, satisfy- 
 ing the law (both parties being conclusively presumed to know 
 the law*), under circumstances which will render the trans- 
 action a fraud on him, to bis injury, if the truth of the case is 
 permitted to be shown. So, for the protection of the other- 
 wise injured party, the one who has misled him is estopped 
 to set up the real facts.^ Now, aside from this doctrine of 
 estoppel, — 
 
 § 1170. VHien certainly Good. — After a specialty is signed 
 and sealed, but not delivered, if there are blanks therein for 
 the names of parties, sums, description of the premises, or the 
 like, they may be filled by any person in the presence of the 
 maker, with his authority, though only verbal,® — or, in his 
 absence, with his authority under seal,^ — and, on its deliv- 
 ery, it will be equally good as if they had been filled before 
 sealing.^ And, within this doctrine, an agent authorized 
 under seal, or the party himself, may fill a blank and redeliver 
 the instrument, after it has been delivered.^ But, in the 
 latter case, a redelivery is necessary .^o Again, as the mere 
 
 1 Compare with New York Mut. Life on Estoppel ; and, in connection with it, 
 Ins. Co. V. Wilcox, 8 Bis. 197 ; Preston Chicago v. Gage, 95 111. 593; Rhode v. 
 V. Hull, 23 Grat. 600, 608. Louthain, 8 Blackf. 413 ; Hill v. Scales, 
 
 2 Davenport v. Sleight, 2 Dev. & 7 Terg. 410; Byers v. McClanahan, 6 
 Bat. 381. Gill & J. 250 ; Owen v. Perry, 25 Iowa, 
 
 ' Swan V. North British Australasian 412 ; Pence v. Arbuckle, 22 Minn. 417 ; 
 
 Co. 2 H. & C. 175, 8 Jur. n. 8. 940. Stowe v. United States, 19 Wal. 13. 
 
 And see Halifax Union v. Wheelwright, » Ante, § 345, 775, 1047. 
 
 Law Rep. 10 Exch. 183; Caulkins t;. ' Ante, § 1045. 
 
 Whisler, 29 Iowa, 495 ; Baxendale v. » Parry v. Dale, Telv. 95, 96, and 
 
 Bennett, 3 Q. B. D. 525 ; ante, § 294. Metcalf s note. 
 
 « Ante, § 378, 462, 463. » See Gibbs v. Frost, 4 Ala. 720. 
 
 ' See, at large, the foregoing chapter i" McNutt v. McMahan, 1 Head, 98; 
 
 472 
 
CHAP. XLIV.] BLANKS AND PILLING THEM. § 1174 
 
 date is not an essential part,^ plainly a blank for it may at 
 any time be filled, if correctly done, in the absence of the 
 maker, by parol authority .^ Again, — 
 
 §1171. Where Sealing not Essential — Some Effect. — A 
 blank in a sealed instrument, of a sort to be effectual in law 
 without a seal, may be filled under parol authority ; thereby 
 reducing its grade to a simple contract.^ And, in various cir- 
 cumstances, within principles already explained,* the filling 
 of a blank under such authority will merely transform what 
 was meant for a specialty to a simple contract in writing ; the 
 seal being deemed an excess of the agent's power, and void 
 to this extent, yet no further,^ — concerning which, nothing 
 need be added to what has gone before. 
 
 § 1172. Authority withdrawn. — After the authority to fill 
 a blank has terminated by the principal's death or otherwise, 
 it cannot be exercised unless coupled with an interest.^ 
 
 II. Simple Contracts. 
 
 § 1173. Form of Authority. — Since any form of authoriza- 
 tion, oral, written, or implied, will qualify the agent to bind 
 his principal by a simple contract,^ it wiU consequently ^ 
 enable him validly to fill a blank. In most of the litigated 
 cases the power is implied. Thus, — 
 
 § 1174. DeUvered in Blank. — Where one, to charge him- 
 self, signs a writing, in which is a blank evidently meant to 
 be filled, and delivers it to a third person, or in general even 
 to the party, he thereby impliedly transmits an authority to 
 
 Burns v. Lynde, 6 Allen, 305, 310 ; * Ante, § 130-137, 393, 394, 772-774, 
 
 Tnpper v. Foulkes, 9 C. B. n. s. 797, 1046. 
 
 7 Jur. N. 8. 709. s McCown v. Wheeler, 20 Texas, 
 
 1 Ante, § 114, 178, 543. 372 ; Viser v. Eice, 33 Texas, 139 ; Cro- 
 
 2 See Whiting v. Daniel, 1 Hen. & zier v. Oarr, 11 Texas, 376; Squire v. 
 Munf. 390; Bell v. Quick, 1 Green, N.J. Whitton, 1 H. L. Cas. 333, 12 Jur. 125. 
 312 ; Foumier v. Cyr, 64 Maine, 32 ; « Ante, § 1051-1055 ; Canal, &c. 
 Commonwealth Bank v. McChord, 4 Railroad v. Armstrong, 27 La. An. 433 ; 
 Dana, 191 ; Keen v. Monroe, 75 Va. Threadgill v. Butler, 60 Texas, 599. 
 424 ; Cockell v. Gray, 6 Moore, 483. And see Carter v. White, 25 Ch. D. 666, 
 
 8 Ante, § 773 ; Adams v. Power, 52 ' Ante, § 1043, 1046, 1049. 
 
 Missis. 828. 8 Ante, § 1168. 
 
 473 
 
§ 1176 PARTIES AND OTHER PARTAKERS. [BOOK II. 
 
 the individual receiving it to fill the blank. ^ Though the 
 one thus authorized violates his instructions, or otherwise 
 abuses the power which he knows was meant to be conferred 
 on him, if in filling the blank he keeps within what may be 
 deemed fairly implied from the transaction itself, he binds 
 the maker to another who becomes the holder of the instru- 
 ment in good faith.^ It is otherwise where the words written 
 in are — 
 
 § 1175. Beyond what is Implied. — The holder of a promis- 
 sory note, indorsed in blank, cannot validly change the con- 
 tract implied from the indorsement by writing over the 
 indorser's name a guaranty .^ And the owner of a blank bill 
 of exchange makes it void if he converts it into a promissory 
 note.* So, where parties had agreed upon the terms of a con- 
 tract, and one of them wrote upon a paper his name, author- 
 izing the other to complete the instrument accordingly, an^ 
 the latter inserted different terms, the former was held not to 
 be bound.^ There are circumstances wherein this sort of 
 question is attended with a good deal of difficulty.^ 
 
 § 1176. The Doctrine of this Chapter restated. 
 
 A blank in a written contract does not impair its validity 
 if, by the aid of interpretation, a sufficient and duly precise 
 meaning can be made out. Otherwise, so long as the blank 
 remains unfilled, the instrument is void. Hence, to fill the 
 latter sort of blank, the parties, whether acting personally or 
 
 1 In re Tahiti Cotton Co. Law Eep. Trazier v. Gains, 2 Baxter, 92 ; Eussel 
 17 Eq. 273; Spitler v. James, 32 Ind. v. Langstaffe, 2 Doug. 514; Edie v. 
 202; Commonwealth Bank y. McChord, East India Co. 2 Bur. 1216, 1 W. Bl. 
 4 Dana, 191 ; Wiley v. Moor, 17 S. & 295. 
 
 E. 438 ; Smith v. Crooker, 5 Mass. 538 ; ^ Belden v. Hann, 61 Iowa, 42. 
 
 Duncan v. Hodges, 4 McCord, 239 ; Jor- * Luellen v. Hare, 32 Ind. 211. And 
 
 danw.Neilson,2'Wash.Va. 164; Board- see Eainbolt v. Eddy, 34 Iowa, 440; 
 
 man v. Gore, 1 Stew. 517; South Ber- Arrington v. Burton, 19 Ala. 114. 
 
 wick V. Huntress, 53 Maine, 89 ; Jewell ^ Eounsavell v. Pease, 45 Wis. 506. 
 
 V. Eock Eiver Paper Co. 101 111. 57 ; See Blackwell v. Ketcham, 53 Ind. 184. 
 
 Hepler v. Mount Carmel Sav. Bank, 1 ^ See, for example, Knoxville Bank 
 
 Out. Pa. 420. V. Clark, 51 Iowa, 264 ; Cronkhite v. 
 
 2 Waldron v. Young, 9 Heisk. 777 ; Nebeker, 81 Ind. 319 ; Baxendale ». 
 Blackwell v. Ketcham, 53 Ind. 184; Bennett, 3 Q. B. D. 525. 
 
 474 
 
CHAP. XLIV.] BLANKS AND FILUNG THEM. § 1176 
 
 by agent, must go through the same formalities in substance 
 as though they were executing an entirely new writing. If 
 the new writing, made under the like circumstances, would 
 be valid, so will be the filling of the blank ; otherwise it will 
 be invalid. And if, under the like circumstances, a new writ- 
 ing meant for a specialty will operate as a simple contract, so 
 will the void old when the blank is filled. A blank in a writ- 
 ten simple contract may be filled under any sort of express 
 or implied authorization. To fill one in a specialty, in the 
 absence of the maker, requires, by the better opinion, an 
 authority under seal. 
 
 475 
 
§ 1179 PARTIES AND OTHEB PAKTAKEBS. [BOOK 11. 
 
 CHAPTER XLV. 
 
 ASSIGNORS AND ASSIGNEES. 
 
 §1177,1178. Introduction. 
 
 1179-1183. Non-negotiable Choses in Action. 
 
 1184-1189. Negotiable Choses in Action. 
 
 1190-1192. Covenants running with Land. 
 
 1193-1195. The Doctrine in Equity. 
 
 1196-1198. By Operation of Law. 
 
 1 199. Doctrine of Chapter restated. 
 
 § 1177. What for this Chapter. — The subject of assign- 
 ments is of great magnitude. The purpose here is, not to 
 unfold it at large, but to present such views as will enable 
 the reader to comprehend the relations of parties making 
 and taking assignments, and something of their methods. 
 There are, in this subject, distinctions creating natural di- 
 visions ; following which, — 
 
 § 1178. How Chapter divided. — We shall consider assign- 
 ments as to, I. Non-negotiable Choses in Action; II. Nego- 
 tiable Choses in Action ; III. Covenants running with Land ; 
 IV. The Doctrine in Equity ; V. By Operation of Law. 
 
 I. Non-negotiable Choses in Action. 
 
 § 1179. Whether Assignee sue. — The common law, origi- 
 nating in conditions not all of which remain unchanged, not 
 only made champerty and maintenance indictable,^ but, to 
 prevent the rich and powerful buying up and prosecuting 
 claims against the weak to their oppression,^ prohibited the 
 assignee (not now speaking of the exceptions to be mentioned 
 
 1 2 Bishop Crim. Law, § 121 et seq. 2 Co. Lit. 214 o ; 2 Bl. Com. 442. 
 
 476 
 
CHAP. XLV.] ASSIGNORS AND ASSIGNEES. § 1180 
 
 in the next sub-title) to maintain in his own name an action 
 on any promise or other liability ^ originally running to his 
 assignor. And such, with us, is the common-law doctrine to 
 the present day.^ It extends so far that, even where the 
 assigned promise is to pay a sum of money to the assigning 
 promisee or hearer, or to his order, or where by any other 
 words the intent appears however clearly to make the instru- 
 ment assignable, still it cannot be so transferred as to em- 
 power the holder to sue on it in his own name ; ^ for parties 
 cannot, by their agreement, change a rule of law.* This ques- 
 tion concerns simply the form of action, — namelj', who shall 
 be the ostensible plaintiff, — and, by late legislation, both in 
 many of our States and in England, the assignee may be the 
 plaintiff of record as well as in fact. Returning to the com- 
 mon-law rules, — 
 
 § 1180. Rights of Assignee. — Whatever may have been the 
 further doctrine in very early times, we find that, at a period 
 as far back as we need trace the question to, the foregoing 
 common-law rule did not impair the substantial rights of the 
 assignee. For, said Holt, C. J., though a bond, for example, 
 " be not assignable in point of interest," the assignment " is a 
 covenant that the assignee shall receive the money to his own 
 use."^ By reason whereof such assignee can maintain his 
 action in the assignor's name ; and the court will not suffer it 
 to be dismissed, or the claim to be settled in pais, or anything 
 else to be done by the assignor to the assignee's prejudice.® 
 But, in order to prevent a release from, or payment to, the 
 assignor operating to cut off the right of the assignee, he must 
 
 1 Dunklin v. Wilkins, 5 Ala. 199; Gray, 23 Cal. 125; Little v. Phenix 
 Davis V. Herndon, 39 Missis. 484; Bank, 7 Hill, N. Y. 359 ; Jones «. Car- 
 Gardner w. Adams, 12 Wend. 297. ter, 8 Q. B. 134; Skinner v. Somes, 14 
 
 2 Hay V. Green, 12 Cush. 282 ; Usher Mass. 107 ; Legro v. Staples, 16 Maine, 
 V. D'WoIfe, 13 Mass. 290 ; Orr v. Amory, 252 ; Weidler v. Kauffman, 14 Ohio, 
 11 Mass. 25; Robertson w. Beed, 11 455. 
 
 Wright, Pa. 115; Hunt v. Mann, 132 * Crouch v. Credit Foncier, Law 
 
 Mass. 53, 55 ; Greenby v. Wilcocks, 2 Kep. 8 Q. B. 374. 
 Johns. I ; Read v. Toung, 1 D. Chip. ^ Caister v. Eccles, 1 Ld. Raym. 683. 
 
 244 ; Boston Ice Co. v. Potter, 123 ^ Legh v. Legh, 1 B. & P. 447 ; Fay 
 
 Mass. 28. w. Guynon, 131 Mass. 31, 34 ; Halloran 
 
 » Coolidge V. Ruggles, 15 Mass. 387 ; v. WTiitcomb, 43 Vt. 306 ; Mc Williams 
 
 Clark V. King, 2 Mass. 524 i People v. v. Webb, 32 Iowa, 577. 
 
 47T 
 
§ 1182 PABTIES AND OTHER PARTAKERS. [BOOK II. 
 
 give to the indebted party notice of the assignment, or the 
 latter must in some way know it ; or, by some opinions (a 
 question not viewed in the same way by all courts), it is suf- 
 ficient if he is put on his inquiry .^ What the assignee takes 
 is simply his assignor's rights ; and, down to the period of 
 assignment and notice, not further, the defendant can rely 
 on the same matters of defence as though no assignment had 
 been made.^ 
 
 § 1181. Debtor Promising. — If, after assignment and no- 
 tice, the debtor expressly promises the assignee^ to make 
 payment to him, the latter, even under the common-law rules, 
 can maintain a suit on the promise in his own name.* 
 
 § 1182. What Assignable. — Not every sort of contract is 
 in its nature assignable. For example, an agreement involv- 
 ing a personal trust in the party, or to be carried out by his 
 personal skill, cannot be so assigned as to compel the other 
 party to accept performance by the assignee, and pay him 
 therefor.^ A familiar illustration whereof is, that a master 
 cannot validly assign over his apprentice.® But the right to 
 perform an agreement, and receive the money to be earned 
 
 1 Tibbits V. George, 5 A. & E. 107 ; » Price v. Easton, 4 B. & Ad. 
 
 Biley v. Taber, 9 Gray, 372, 373 ; Upton 433. 
 
 V. Moore, 44 Vt 552; Barron «. Por- * Jessel v. Williamsbnrgh Ins. Co. 3 
 
 ter, 44 Vt. 587 ; Heermans v. Ellsworth, Hill, N. T. 88 ; Crocker v. Whitney, 10 
 
 64 N. Y. 159 ; Jones v. New York, 90 Mass. 316, 319 ; Innes v. Dunlop, 8 T, E. 
 
 N. Y. 387 ; Comstock v. Farnum, 2 595 ; Compton v. Jones, 4 Cow. 13 ; 
 
 Mass. 96 ; Dale v. Kimpton, 46 Vt. 76 ; Eenuer v. Meares, 2 "W. Bl. 1269; Sur- 
 
 Anderson v. Van Alen, 12 Johns. 343 ; tees v. Hubbard, 4 Esp. 203. 
 Kellogg V. Krauser, 14 S. & E. 137 ; ^ Eobson v. Drnmmond, 2 B. & 
 
 Davenport v. Woodbridge, 8 Greenl. 17 ; Ad. 303 ; The Lizzie Merry, 10 Ben. 
 
 Bean v. Simpson, 16 Maine, 49. 140; Bethlehem v. Annis, 40 N. H. 34; 
 
 ^ Clute V. Kobison, 2 Johns. 595; Munsell v. Temple, 3 Oilman, 93; Jos- 
 Willis I). Twambly, 13 Mass. 204, 206 ; lyn v. Parlin, 54 Vt. 670 ; Lansden v. 
 Webster 1). Wise, 1 Paige, 319; Jack i). McCarthy, 45 Misso. 106. And see 
 Davis, 29 Ga. 219 ; Murray v. Gouver- ante, § 600, 862, 1067. 
 near, 2 Johns. Cas. 438 ; Turton v. Ben- 6 Castor v. Aides, 1 Salk. 68 ; Cov- 
 son, 1 P. Wms. 496, 497 ; Bush u. entry v. Woodhall, Hob. 134 a, 135 ; 
 Lathrop, 22 N. Y. 535 ; Wetter v. Kiley, Hern v. Dryden, 11 Mod. 272 ; Davis v. 
 14 Norris, Pa. 461 ; Shade v. Creviston, Coburn, 8 Mass. 299; Handy v. Brown, 
 93 Ind. 591 ; Boardman v. Hayne, 29 1 Cranch C. C. 610 ; Stringfield v. 
 Towa, 339 ; Martin v. Richardson, 68 Heiskell, 2 Yerg. 546 ; Nickerson v. 
 N. C. 255; Stevens v. Johnson, 28 Howard, 19 Johns. 113. And see ante, 
 Minn. 172; Mangles v. Dixon, 3 H. L. § 601. 
 Cas. 702. ^ 
 
 478 
 
CHAP. XLV.] ASSIGNOBS AND ASSIGNEES. § 1184 
 
 thereby, is, when not within this principle of personal confi- 
 dence, assignable.^ Of this, a common illustration is a build- 
 ing contract.^ And, in general terms, a perfected claim to 
 anything, whether money or goods, may be so assigned as to 
 vest in the assignee the equitable interest, or in some of the 
 States the legal.^ There are other distinctions. But to carry 
 these illustrations further would be foreign to the purpose of 
 this chapter. 
 
 § 1183. Government Assignor or Assignee. — By the Eng- 
 lish common law, an assignment of a chose in action to or 
 from the king entitles the assignee, whether king or subject, 
 to sue it in his own name.* The reason of this does not dis- 
 tinctly appear ; but we may assume it to be because the crown 
 cannot commit the crime of maintenance, or the oppressions 
 out of which the rule as between subject and subject grew.^ 
 And the same doctrine, that an assignment to or from the 
 government carries to the assignee the right of action in his 
 own name, is believed to prevail with us.^ There is the same 
 reason for it here as in England, and it harmonizes with the 
 tendencies of our modern law. 
 
 II. Negotiable Ohoses in Action. 
 
 § 1184. BiUs and Notes. — By the usage of merchants, 
 whereof, because of its universality, the courts took judicial 
 cognizance, rendering it a part of the common law,^ bills of 
 
 1 Devlin v. New York, 63 N. Y. 8 ; Myles v. "Williams, Gilb. Cas. 318, 321 ; 
 Tugman v. National Steamship Co. 76 Lambert v. Taylor, 4 B. & C. 138, 150. 
 N. Y. 207. And see Bowes v. Paulet, Cro. Eliz. 653 ; 
 
 2 Ante, § 603, 861 ; Devlin v. New Bread man v. Coales, Hob. 253 ; Stat. 7 
 York, supra; Kellogg Bridge v. Ham- Jac. 1, c. 15. 
 
 ilton, 110 U. S. 108. 5 Ante, § 1179. 
 
 8 Taylor v. Galland, 3 Greene, Iowa, « United States v. Bnford, 3 Pet. 
 
 17 ; Gray v. Garrison, 9 Cal. 325; Bur- 12, 30. 
 
 kett V. Moses, 1 1 Eich. 432 ; Bull v. ' Ante, § 445 ; Williams v. Williams, 
 
 Faulkner, 2 De G. & S. 772, 13 Jur. 93 ; Garth. 269. The drawing of a bill 
 
 Pier V. George, 86 N. Y. 613. made the party a merchant within the 
 
 * Ante, § 990 ; Bac. Abr. Prerog- custom. Hodges v. Steward, 1 Salk. 
 
 ative, E, 3; Breverton's Case, 1 Dy. 125; Cramlington v. Evans, Holt, 108, 
 
 30 6 ; Miles v. Williams, 1 P. Wms. 249, 111. 
 252, 353, 10 Mod. 243, 245 ; S. C. nom. 
 
 479 
 
§ 1187 PAETIES AND OTHER PARTAKBES. [BOOK II. 
 
 exchange were from early times adjudged to be negotiable 
 when their terms were so,^ constituting an exception to the 
 doctrine of the last sub-title.^ And the statute of 3 & 4 
 Anne, o. 9, put promissory notes on the footing of " inland 
 bills of exchange."^ This statute, as to notes, and the prior 
 common law as to bills, are unwritten law with us.* 
 
 § 1185. Scrip Certificates — Modern Usage, — whether it has 
 so ripened as to become a part of the common law or not,^ 
 may, and it sometimes does, render a particular class of in- 
 struments — for example, scrip certificates — negotiable, in 
 the same way in which bills of exchange originally became 
 so.^ Again, — 
 
 § 1186. Government Bonds, — whether of our own or a for- 
 eign government, are in law negotiable if such is their form ; ' 
 otherwise, like bills and notes lacking the negotiable words, 
 they are not.* Usage undoubtedly aids this conclusion ; still, 
 in reason, as this case does not furnish opportunities for the 
 rich to oppress the poor,^ but it more nearly resembles assign- 
 ments to and from the government,^" the government bonds 
 ought to have the effect which their terms express. Even, — 
 
 § 1187. Corporation Bonds — Coupons. — By the nearly 
 unanimous modern opinion, the bonds of a municipal, rail- 
 road, or other like corporation, payable on their face to the 
 " bearer " or " holder," or to one named or his " order " or 
 "assigns," and intended for miscellaneous circulation, are, 
 though under seal, and whether coupons are attached or not, 
 negotiable.!^ And it is the same with their coupons when 
 
 1 Ante, § 1179. Attorney-General v. Bouwens, 4 M. & W. 
 
 " Grant v. Vaughan, 3 Bur. 1516, 171; Brandao w. Bainett, 3 C. B. 519; 
 
 1522 ; Ormston's Case, 10 Mod. 286. Wookey v. Pole, 4 B. & Aid. 1 ; Texas 
 
 ' Cutting V. Williams, 7 Mod. 155 v. White, 7 Wal. 700; Illinois ». Dela- 
 
 and note ; Burchell v. Slocock, 2 Ld. field, 8 Paige, 527 ; s. c. in error Delar 
 
 Eaym. 1545. field v. Illinois, 2 Hill, N. Y. 159, 177 ; 
 
 * Jones V. Fales, 4 Mass. 245, 254 ; Seybel v. National Cur. Bank, 54 N. Y. 
 
 Sunn V. Adams, 1 Ala. 527 ; Yingling v. 288. 
 
 Kohlhass, 18 Md. 148; 3 Kent Com. 72. » Glyn v. Baker, 13 East, 509, ex- 
 
 5 Ante, § 444-446. plained in Gorgier v. Mieville, supra. 
 
 " Goodwin v. Eobarts, Law Rep. 10 9 Ante, § 1179. 
 
 Ex. 76, 337, 1 Ap. Cas. 476 ; Rumball v. m Ante, § 1183. 
 
 Metropolitan Bank, 2 Q. B. D. 194. " Brainerd v. New York, &c. Eail- 
 
 ' Gorgier v. Mieville, 3 B. & C. 45; road, 25 N. Y. 496 ; Griffith v. Bu^ 
 480 
 
CHAP. XLV.] ASSIGNORS AND ASSIGNEES. § 1190 
 
 detached.^ There J3 here nothing violative of that policy of 
 the common law which forbade maintenance and its kindred 
 oppressions ; and, on the other hand, the negotiability of these 
 instruments accords alike with their purpose and with modern 
 business usage. 
 
 § 1188. Statutes, — varying in our States, have more or less 
 extended the foregoing doctrines. 
 
 § 1189. Effect of Negotiable. — The meaning of the term 
 " negotiable " is uniform, not varying with the sort of instru- 
 ment. It implies, among other things, that there must be 
 words of negotiability ; 2 then, if they promise payment to 
 the " bearer," or to a person's " order " and he indorses the 
 instrument in blank, it may be transferred to successive own- 
 ers indefinitely by mere delivery .^ The holder, though it 
 passed to him through many hands, is entitled to sue it in his 
 own name ; and, if he received it before it was due, in good 
 faith, for value, and without notice of any defences, he can 
 ordinarily collect it in spite of anything which the maker had 
 to offer against the original holder.* But when payment has 
 become overdue, a purchaser of the instrument takes it sub- 
 ject to all equities.^ A minuter exposition would not accord 
 with the plan of this chapter. 
 
 III. Covenants running with Land. 
 
 § 1190. Real Estate Law. — The subject of covenants run- 
 ning with the land constitutes a considerable title in the law 
 
 den, 35 Iowa, 138; Otis v. Cullum, 92 96; Bearer u. Armstrong, 8 'Wright, Pa. 
 
 U. S. 447; Bank of Rome w. Rome, 19 63; Augusta Banls v. Augusta, 49 
 
 N. Y. 20 ; Mercer v. Hacket, 1 Wal. 83 ; Maine, 507. 
 Gelpcke v. Dubuque, 1 Wal. 175 ; Meyer = Explained ante, § 1 186. 
 
 V. Muscatine, 1 Wal. 384 ; Morris Canal, ' 3 Kent Com. 77 ; Fairly v. Mc- 
 
 &c. Co. V. Lewis, 1 Beas. 323 ; New Al- Lean, 11 Ire. 158 ; Bank of United States 
 
 bany, &c. Plank Road v. Smith, 23 Ind. v. Macalester, 9 Barr, 475 ; Beekman v. 
 
 353. But see Diamond v. Lawrence, 1 Wilson, 9 Met. 434. 
 Wright, Pa. 353. And see Maddox v. * 3 Kent Com. 77-79 ; Birdsall v. 
 
 Graham, 2 Met. Ky. 56. Russell, 29 N. Y. 220 ; Swall v. Clarke, 
 
 1 Thomson v. Lee, 3 Wal. 327 ; 51 Cal. 227 ; Continental Bank v. 
 
 Murray v. Lardner, 2 Wal. 110; Ken- Townsend, 87 N. Y. 8 ; Myers v. Haz- 
 
 nard v. Cass, 3 Dil. 147; Haven v. zard, 4 McCrary, 94. 
 Grand Junction, &c. Co. 109 Mass. 88, ^ Texas v. White, 7 Wal. 700. 
 31 481 
 
§ 1192 PARTIES AND OTHEH PARTAKERS. [BOOK II. 
 
 of real estate. It is introduced here simply to render the 
 reader's view of the relations of the parties to assignments 
 more full, but anything like a discussion of it would be 
 undesirable. 
 
 § 1191. What. — These covenants are commonly found in 
 deeds of conveyance, leases, and the like. And there are, of 
 this sort, implied covenants as well as express.^ For a cove- 
 nant to run with the land, it must concern the land itself, not 
 merely the individual owner in a matter relating thereto; 
 and there must be what is sometimes termed a certain privity 
 of estate. One for the renewal of a lease ^ is such ; so is a 
 continuing one concerning the title ; and there are many 
 others.^ A mere personal covenant, of this general nature, is 
 termed a covenant in gross. To distinguish between the two 
 is a matter often nice and difficult.* A covenant " broken 
 before the land passes " from the covenantee is in gross, or a 
 chose in action? In order to run with the land, it does not 
 as of course require the word " assigns," " heirs," or any 
 other of like meaning ; yet, in various cases, such an expres- 
 sion will aid the conclusion that the covenant runs with the 
 land.« 
 
 § 1192. How assign. — A conveyance of the land consti- 
 tutes an assignment of this sort of covenant ; transmitting to 
 the grantee the burden or right, so that a suit at law on the 
 covenant may be maintained against or by him.' 
 
 1 4 Kent Com. 473. ^ 4 Kent Com. 473 ; Ladd v. Noyes, 
 
 * Leppla V. Mackey, 31 Minn. 75; 137 Mass. 151. 
 
 In re Adams, 24 Ch. D. 199. « Spencer's Case, 5 Co. 16 a ; Hart v. 
 ' 4 Kent Com. 109, 473; Auster- Lyon, 90 N. Y. 663; Tatem v. Chap- 
 berry o. Oldham, 29 Ch. D. 750; Scott lin, 2 H. Bl. 133; Martyn v. Clue, 18 
 V. McMillan, 76 N. Y. 141; Cole v. Q. B. 661 ;, Wilkinson v. Rogers, 10 
 Hughes, 54 N. Y. 444; Jourdain f.Wil- Jur. N. s. 5; Taite v. Gosling, 11 Ch. 
 son, 4 B. & Aid. 266 ; Miller w. Noonan, D. 273 ; Renals u. Cowlishaw, 11 Ch. 
 12 Misso. Ap. 370; Hurd v. Curtis, 19 D. 866. 
 
 Pick. 459; Langley v. Chapin, 134 7 Chandler t>. Brown, 59 N. H. 370; 
 Mass. 82; Hartung v. Witte, 59 Wis. Georgia Southern Railroad v. Reeves, 
 285 ; Callan v. McDaniet, 72 Ala. 96 ; 64 Ga. 492 ; Roche v. UUman, 104 111. 
 West Virginia Transp. Co. v. Ohio 11 ; Cole i». Kimball, 52 Vt. 639 ; Hard- 
 River Pipe Line Co. 22 W. Va. 600. man v. Child, 28 Ch. D. 712; Betz u. 
 
 * Hardman t>. Child, 28 Ch. D. 712, Bryan, 39 Ohio State, 320. 
 717. 
 
 482 
 
CHAP. XL v.] ASSIGNORS AND ASSIGNEES. § 1196 
 
 IV. The Doctrine in Equity. 
 
 § 1193. How sue. — The assignee of a chose in action, suing 
 thereon in the equity tribunals, may, in disregard of the rule 
 of the common-law courts stated in our first sub-title,^ pro- 
 ceed in his own name ; though, in some circumstances, owing 
 to a real or supposed interest ^ in the assignor, he must make 
 him a co-plaintiff.^ For it is the course in equity, that the 
 party in interest brings suit in his own name.* 
 
 § 1194. other Distinctions. — There are, in connection with 
 assignments, other differences between the equity and com- 
 mon-law rules. For example, at law, a creditor cannot with- 
 out the debtor's consent assign a part of his claim ; because 
 it is the right of the latter, if he chooses, to discharge his debt 
 in full and at once, not in parcels." But the equity tribunals, 
 with their flexible proceedings, manage to sustain such an 
 assignment.® And, where a note is owned by two, the assign- 
 ment by one, of his share, is good in equity.^ But — 
 
 § 1195. Not for this Place. — It would not accord with the 
 purpose of this chapter to carry out these explanations into 
 their numerous details. 
 
 V. By Operation of Law. 
 
 §1196. In General. — In various places in the foregoing 
 pages, we have had occasion to see that there is a wide differ- 
 ence between a thing done by the law and by the parties.^ 
 
 1 Ante, § 1179. drawn, constitutes, by the nsages of 
 
 2 Kussell V. Clark, 7 Cranch, 69; trade, an exception to this rule. Tay- 
 Mechanics Bank ». Seton, 1 Pet. 299; lor v. Taylor, 78 Ky. 470. And see 
 Story V. Livingston, 13 Pet. 359, 375. Coates v. Preston, 105 111. 470. 
 
 3 Currier v. Howard, 14 Gray, 511 ; = National Exch. Bank v. McLoon, 
 Hodges V. Saunders, 17 Pick. 470; Ma- 73 Maine, 498; Canty v. Latterner, 31 
 son V. York, &c. Railroad, 52 Maine, 82. Minn. 239. 
 
 * Frye v. Bank of Illinois, 5 Oilman, ' Tordyce v. Nelson, 91 Ind. 447. 
 
 332. 8 por example, ante, § 98, 99, 197- 
 
 6 Beardsleew. Morgner, 73 Misso. 22. 203, 441, 556, 595, 596, 793, 806, 867- 
 
 A check on a bank, operating as an as- 877, 887, 906, 918, 967. 
 
 signment of the sum for which it ia 
 
 483 
 
§ 1198 PARTIES AND OTHER PARTAKERS. [bOOK II. 
 
 Therefore assignments made by the law have their own rules, 
 and are not as of course governed by those hitherto set down 
 in this chapter. Thus, — 
 
 § 1197. Bankruptcy. — An assignment in bankruptcy gives, 
 it is believed, on the general principles of the law, authority 
 to the assignee, in whom it vests the assets, to collect the 
 ehoses in action by suit in his own name,^ — a question which 
 is in the main settled by statutes. And, on principle, as the 
 assignee, while taking the estate from the debtor, represents 
 the creditors, he should be entitled to recover back what the 
 former had conveyed away in fraud of the latter. But, in 
 other respects, a defence good against the debtor should be 
 equally available against him. Herein his position differs 
 from that of the other assignees mentioned in this chapter. 
 To unfold these views on the authoi'ities, involving compli- 
 cations of statutory law and adjudications, would conduct the 
 reader further into a tangle than is deemed necessary at this 
 place. ^ Again, — 
 
 § 1198. Executors and Administrators — are assignees by 
 operation of law. The goods and ehoses in aetion of the 
 deceased are vested in them.^ It follows, therefore, that 
 they may sue and be sued, in their own names (whether in 
 their representative capacity or as individuals we are not now 
 inquiring), for whatever concerns the estate of the deceased.* 
 And, if it is not insolvent, they stand, both as to actions and 
 defences, simply in his shoes.^ But, if it is insolvent, they, 
 when plaintiffs, so far represent creditors as to be entitled to 
 recover also on their behalf.^ 
 
 1 3 Pars. Con. 469. * lb. ; Carlisle v. Barley, 3 Greenl. 
 
 2 Consult the next section ; also ante, 250 ; Potter v. "Van Vranken, 36 N. Y. 
 §673; Day v. Cooley, 118 Mass. 524, 619; Eisenbise ». Eisenbise, 4 Watts, 
 527. 134. 
 
 8 Jewett V. Smith, 12 Mass. 309; 6 peaslee ». Barney, 1 D. Chip. 331 ; 
 
 Beecher v. Bnckingham, 18 Conn. 110; Armstrong v. Stovall, 26 Missis. 275. 
 Snodgrass v. Cabiness, 15 Ala. 160; « Martin w. Root, 17 Mass. 222. But 
 
 Shirley v. Healds, 34 N. H. 407 ; Neale see Anderson v. Belcher, 1 Hill, S. C. 
 
 V. Hagthrop, 3 Bland, 551 ; Tharpe v. 246. And see Crawford ». Lehr, 20 
 
 Stallwood, 6 Scott N. R. 715, 7 Jur. Kan. 509. 
 492; Poag v. Miller, Dudley, S. C. 11. 
 
 484 
 
CHAP. XLV.] ASSIGNORS AND ASSIGNEES. § 1199 
 
 § 1199. The Doctrine of this Chapter restated. 
 
 Assignors and assignees, as parties, sustain somewhat dif- 
 fering relations, with rights and duties in a degree variable, 
 according to the nature of the thing assigned, and the man- 
 ner of the assignment ; sometimes, also, according to whether 
 the litigation is at law or in equity. To retrace the lines 
 of distinction in the present section would be superfluous. 
 What is said in this chapter is meant only to show the rela- 
 tions of the parties ; a full exposition of the law of assignment 
 was not its purpose. 
 
 485 
 
§ 1202 PASTIES AND OTHEB PAETAKEES. ■ [BOOK U. 
 
 CHAPTER XLVL 
 
 CKEDITOES. 
 
 § 1200. Power over One's Own. — Every person is entitled 
 to do what he will with his own, — whether his own services, 
 his own conduct, or his own property,^ — so long as he inter- 
 feres with no rights of others. If a man marries, he has obli- 
 gated himself to support his wife and children, and their 
 claims must be respected.^ Or, if he incurs debts, he has 
 placed himself and his property under a liability to his cred- 
 itors, and it cannot be cast ofE. How far the creditor may 
 interfere with his contracting is the inquiry for this chapter. 
 
 § 1201. Nature of Creditor's Claim. — Sometimes a creditor 
 has a lien on a particular article of property, — as, where it 
 is mortgaged or pledged to him, or he has done work on it 
 and it has not left his possession, or he has seized it on legal 
 process, — but this is not for consideration here. Aside from 
 such lien, the debtor's property, from which might be derived 
 the means of payment, or from which it might be enforced by 
 levy, was one of the other's main inducements to become a 
 creditor. And the debtor defrauds him if, after the debt is 
 contracted, he puts this property beyond the reach of the 
 law; or if, to avoid paying future debts, he first puts it so, 
 and then contracts them. Somewhat to particularize, — 
 
 § 1202. Conspiracy. — A conspiracy between two or more 
 persons to cheat a third is both a civil and a criminal wrong. 
 It is at the common law indictable, even before any overt act 
 in pursuance of it has been performed.^ And when the par- 
 ties have so far proceeded in the evil combination as actually 
 
 I Ante, § 82, 210 ; 1 Bishop Crim. = Ante, § 234, 235, 906, 910, 949. 
 
 Law, § 514, 576. 8 2 Bishop Crim. Law, § 185, 198-214. 
 
 486 
 
CHAP, XLVI.] CREDITORS. §1205 
 
 to injure another, they are answerable to him in a civil suit.^ 
 On this principle, if, in any manner, a debtor and another 
 person combining put the former's property where a creditor 
 cannot reach it by legal process, the latter, after the combina- 
 tion has resulted in cheating him, has his proper legal remedy 
 against them.2 But — 
 
 § 1203. As between Parties. — A conspirator who, to cheat 
 his creditors, conveys goods to his co-conspirator, can neither 
 reclaim them nor enforce an executory promise to pay for 
 them ; but, the parties being equally in the wrong, the law 
 will assist neither.^ Some courts qualify this doctrine to the 
 extent that, since only creditors are entitled to complain, the 
 contract, whether executory or executed, will, while they 
 acquiesce, be good between the parties.* This qualification, 
 if accepted, operates only on the executory contract; for, by 
 all opinions, the executed conveyance is, as between the par- 
 ties, irreversible,^ On the other hand, — 
 
 § 1204. Creditor's Eights. — Not only has the creditor the 
 right of action just mentioned,® but he may avoid the con- 
 vej'ance which his debtor has made to a co-conspirator, to 
 cheat him.'^ 
 
 § 1205. Statutes. — The foregoing doctrines of the unwrit- 
 
 1 Herron v. Hughes, 25 Cal. 555 ; Haverstick, 53 Ind. 348 ; Etter v. An- 
 Page V. Parker, 43 N. H. 363 ; Jones derson, 84 Ind. 333 ; Fivaz v. Nicholls, 
 w. Westervelt, 7 Cow. 445 ; Gregory u. 2 C. B. 501 ; Begbie v. Phosphate Sew- 
 Brunswick, 6 Scott N. R. 809, 8 Jur. age Co. Law Eep. 10 Q. B. 491 , 499, 
 148, 3 C. B. 481. 500; Hall v. Callahnn, 66 Misso. 316 ; 
 
 2 Adams v. Paige, 7 Pick. 542, 549; Bartlett i'. Bartlett, 13 Neb. 456; Alli- 
 Hall V. Eaton, 25 Vt. 458; Penrod v. son v. Hagan, 12 Nev. 38 ; Holliday 
 Morrison, 2 Pa. 126. v. Holliday, 10 Iowa, 200; White v. 
 
 * Ante, § 489, 816, 835; Ager v. Brocaw, 14 Ohio State, 339; Nellis v. 
 Duncan, 50 Cal. 325 ; Heineman v. Clark, 20 Wend. 24. 
 
 Newman, 55 Ga. 262 ; Harwood v. " Ante, § 1202. 
 
 Knapper, 50 Misso. 456 ; Burleigh v. ' Lowry v. Pinson, 2 Bailey, 324 ; 
 
 White, 64 Maine, 23 ; Gill v. Henry, 14 liudlow v. Gill, 1 D. Chip. 49; Fitzsim- 
 
 Norris, Pa. 388. mons v. Joslin, 21 Vt. 129 ; Drummond 
 
 * Harvey w. Vamey, 98 Mass. 118; v. Couse, 39 Iowa, 442; Bowden v. 
 Van Wy v. Clark, 50 Ind. 259 ; Dietrich Bowden, 75 111. 143 ; Means v. Feaster, 
 «. Koch, 35 Wis. 618; Roberts ti. Lund, 4 S. C. 249. And see Loeschigk v. 
 45 Vt. 82 ; Hess v. Final, 32 Mich. 515 ; Bridge, 42 N. Y. 421 ; Smith v. Rum- 
 Shaw V. Jeffery, 13 Moore P. C. 432. sey, 33 Mich. 183; Barber w. Terrell, 54 
 And see Noble v. Noble, 26 Ark. 317. Ga. 146. 
 
 ^ Cases above cited ; also Edwards v. 
 
 487 
 
§ 1208 PARTIES AND OTHER PARTAKERS. [BOOK II. 
 
 ten law are affirmed and perhaps extended by legislation. 
 Of early English enactments affirming them,^ are 50 Edw. 3, 
 c. 6 ; 2 Rich. 2, stat. 2, c. 3 ; and 3 Hen. 7, c. 4.2 But these 
 were nearly or quite absorbed and superseded by 18 Eliz. 
 c. 5, and 27 Eliz. c. 4, to which reference is almost exclu- 
 sively made in later times. These statutes are accepted in 
 our States as unwritten law,^ and they are constantly cited 
 in our tribunals. Their construction was not fully settled 
 in England earl}-- enough to be in all particulars binding here,* 
 and our courts have made some departures from the later 
 English expositions. Moreover, in most of our States, domes- 
 tic legislation has spoken on this subject, and not always in 
 the precise terms of the English. Hence, — 
 
 § 1206. What for this Place. — It will not be well here, 
 with our limited space, to enter into the details of these 
 statutes. But we may take a brief view of some leading 
 rules derivable alike from them and from the common law. 
 Thus, — 
 
 § 1207. Exempt Property. — It is no fraud on a creditor for 
 the debtor to deal as he will with property which the law 
 exempts from attachment or seizure for the debt ; therefore 
 no convej'ance of exempt property, even though made with 
 intent to defraud creditors, can be avoided by them.^ And 
 an assignment for the benefit of creditors, excepting such 
 property, is not, therefore, fraudulent or otherwise void.^ 
 Again, — 
 
 § 1208. Labor of Debtor and Family. — The law, while it 
 lays hold of the debtor's property and out of it pays the cred- 
 itor, will not force him to work for the same end.'' A fortiori, 
 
 1 Kimball v. Hutchins, 3 Conn. 450 ; 6 Winchester v. Gaddy, 72 N. C. 115 ; 
 Sewall w. Gliddcn, 1 Ala. 52 ; Teasdale O'Conner v. Ward, 60 Missis. 1025; 
 V. Atkinson, 2 Brev. 48. Hixon v. George, 18 Kan. 253 ; De- 
 
 2 Wilson V. Cheshire, 1 McCord Ch. lashmut ». Trau, 44 Iowa, 613. And 
 233. see Tracy v. Cover, 28 Ohio State, 61. 
 
 8 Bishop Dir. & F. § 481 ; 1 Bishop ^ Eichardson v. Marqueze, 59 Missis. 
 
 Crim. Law, § 572 a ; The State v. Moore, 80. 
 
 Meigs, 476, 478 ; Cathcart v. Robinson, ' Rush v. Vought, 5 Smith, Pa. 437 j 
 
 5 Pet. 264 ; Robinson v. Holt, 39 N. H. Ford ». Jermon, 6 Philad. 6 ; Teeter v. 
 
 557 ; Gardner v. Cole, 21 Iowa, 205. Williams, 3 B. Monr. 562. 
 
 * Baltimore v. Williams, 6 Md. 235. 
 
 488 
 
CHAP. XLVI.] CREDITORS. § 1210 
 
 therefore, it will not thus compel his wife or child. Under: 
 the common-law rules, a wife's earnings are the husband's; 
 even though he does not support her, and the minor chil- 
 dren's are the father's while he maintains them yet no longer. 
 So that when the man, woman, or child has earned for the 
 man money or other property, or an indebtedness to him for 
 his or their services, his creditors may lay claim thereto. 
 But he can give away his services or theirs not reduced to 
 earnings, and no creditor can then have the products. Since 
 he can give them away, and since the larger includes the less, 
 he can make any other arrangement he pleases concerning 
 them, and creditors cannot interfere. These views are fully 
 sustained by a part of the adjudications, yet with others they' 
 do not accord, or accord in various degrees. The author has, 
 so fully explored these questions elsewhere that he deems it 
 unnecessary to consider them further here.^ 
 
 § 1209. Preferring Creditors. — The common law permits a 
 failing debtor to pay in full such creditors as he chooses to 
 prefer, while necessarily the others suffer.^ But the statutes, 
 of bankruptcy and insolvency, one object of which is the equal 
 distribution of the effects,^ commonly provide otherwise. 
 
 § 1210. Protection to Purchasers. — Though one sells his, 
 property with the undisclosed intent to put the money in his 
 pocket and cheat his creditors, the honest buyer at a fair 
 price, with nothing to excite suspicion or inquiry,* is protected 
 
 1 2 Bishop Mar. Women, § 450-477. Wilkes v. Ferris, 5 Johns. 335 ; Phce- 
 In connection with which, consult 1 lb. nix v. Dey, 5 Johns. 412 ; Thornton v. 
 § 215, 733, 783; 2 lb. § 299, 302; 2 Tandy, 39 Texas, 544; Sands v. Peir- 
 Bishop Mar. & Div. § 528; Wijson v. son, 61 Iowa, 702; O'Donald v. Con- 
 McMillan, 62 Ga. 16; Johnson v. Sils- slant, 82 Ind. 212; Leppig v. Bretzel, 
 bee, 49 N. H. 543 ; Patterson v. Camp- 48 Mich. 321 ; Ayers v. Adams, 82 Ind. 
 bell, 9 Ala. 933. Of the cases cited in 109 ; Strauss v. Hose, 59 Md. 525 j 
 Bishop Mar. Women, see particularly Lininger v. Raymond, 12 Neb. 19, 167; 
 Abbey v. Deyo, 44 N. Y. 343 ; Peterson Tootle v. Coldwell, 30 Kan. 125 ; Elliott 
 V. Mulford, 7 Vroom, 481 ; Bucher v. v. Benedict, 13 R. I. 463 ; Guggen- 
 Ream, 18 Smith, Pa. 421 ; Hallowell v. heiraer v. Brookfield, 90 N. C. 232 ; 
 Horter, 11 Casey, Pa. 375 ; Brown v. Nostrand v. Atwood, 19 Pick. 281 ; 
 Pendleton, 10 Smith, Pa. 419; Elliott State Bank r. Whittle, 48 Mich. 1. 
 V. Bently, 17 Wis. 591. ' Dexter ». Snow, 12 Cash. 594. 
 
 * Thornton v. Davenport, 1 Scam. * Kellogg v. Aherin, 48 Iowa, 299 ; 
 
 296; Francis B.Rankin 84 111. 169; Dorrington w. Minnick, 15 Neb. 397. 
 
 489 
 
§ 1213 PARTIES AND OTHER PARTAKERS. [BOOK II." 
 
 in his purchase ;^ his equity being deemed superior to that of 
 a creditor.2 But — 
 
 § 1211. Heceiver of Gift. — One who takes tha property in 
 mere gift is inferior in equity to the creditor. And, however 
 honest he may be, the giver's creditor of prior date may have 
 it as against him.^ 
 
 § 1212. other Questions. — There are, connected with this 
 subject, various other questions, depending on a mingling of 
 the foregoing principles with the not altogether uniform, stat- 
 utes of our different States ; to discuss which, would; take us 
 over ground not quite within the domain of the present. chap- 
 ter. Of questions not profitable unless the statutes were 
 before us, are some nice distinctions between present and 
 future debts, and conveyances to defraud future creditors. 
 
 § 1213. The Doctrine of this Chapter restated. 
 
 The doctrine of this chapter is, that, when one makes him- 
 self the debtor of another, he confers on him certain rights as 
 to property out of which the law compels payment. If, to 
 defraud the creditor, he disposes of it to one who is a par- 
 taker in the fraud, the creditor may, on due legal proceed- 
 ings, subject it to the payment of the debt. Or, if the debtor 
 gives it a\*^ay to one who even receives it honestly, the same 
 consequence will follow. But an honest purchaser, for value, 
 with nothing to excite his suspicion or put him on inquiry, 
 is protected. This subject has, from early times, been legisr 
 lated upon in England and in our States, yet not in abroga- 
 tion of these principles of the unwritten law. 
 
 1 Hurley v. Taylor, 78 Misso. 238 ; 2 Paige, 54 ; Clark w; Dep^w, 1 Casey, 
 Miller v. Kirby, 74 111. 242 ; Hatch Pa. 509 ; Crawford v. Kirksey, 55 Alii. 
 V. Jordon, 74 111. 414 ; Hedman v. An- 282 ; Bogard v. Gardley, 4 Sm. & M. 
 dersoii, 6 Neb. 392 ; Collins v. Cook, 302 ; Vertner v. Humphreys, 14 Sm. 
 40 Texas, 238; Spicer u. Robinson, 73 & M. 130 ; Crumbaugh w. , Kugler, 2 
 111. 519; Massie j;.Enyart,32 Ark. 251 ; Ohio State, 373 ; Young v. White, 25 
 Farlin v. Sook, 30 Kan. 401 ; Sharpe v. Missis. 146 ; Grnder v. Bowles, 1 Brev. 
 Williams, 76 N. 0. 87. 266 ; Bohannon v. Combs, 79 Misso. 
 
 2 Enders v. Williams, 1 Met. Ky. 346. 305 ; lies v. Cox, 83 Ind. 577 ; Good-. 
 8 2 Kent Com. 440 ; Early v. Owens, man v. Wineland, 61 Md. 449 ; Van 
 
 68 Ala. 171 ; Mohawk Bank v. Atwater, Bibber v. Mathis, 52 Texas, 406. 
 
 490 
 
CHAP. XLVII.] OTHBK THIED PERSONS. §1216 
 
 CHAPTER XLVII. 
 
 OTHER THIRD PERSONS. 
 
 § 1214. Having Interest, or not. — One has no rights re- 
 garding any contract between other persons, unless it affects 
 his interests.^ But we saw in the last chapter, that, under 
 circumstances pointed out, a creditor may overthrow a con- 
 tract which his debtor and another have made in obstruction 
 of his prior claims. And we shall see, in this chapter, that 
 one not a party may assert a pecuniary interest of his own in 
 a contract between other persons. Thus, — 
 
 § 1215. Trusts. — If one conveys property to another, di- 
 recting that it shall be held for the benefit of a third, who is 
 not a party to the transaction, a right is thus created in the 
 third person, and he can enforce it in a court of equity.^ Or, — 
 
 § 1216. Resulting Trusts. — If one who has another's money 
 to invest in land, causes, on doing it, the deed to be made to 
 himself, the law will create a resulting trust ; whereupon the 
 equity court will compel him to hold the legal title for the 
 benefit of him by whose money it was procured.^ And all 
 persons who, in any of the innumerable ways possible, take 
 or retain a title to either real or personal property, which is 
 truly another's, are by the law made the trustees of the true 
 owner.* Again, — 
 
 1 Boyer v. Tressler, 18 Ind. 260 ; Chapin, 1-30 Mass. 128 ; Preachers Aid 
 
 Simson v. Brown, 68 N. Y. 355; Reid Soc. ?>. England, 106 111. 125. 
 
 V. Vanderheyden, 5 Cow. 719. ' Houghton v. Davenport, 74 Maine, 
 
 " 2 Story Eq. § 961-964, 974, 974 a; 590 ; Murry u. Sell, 23 W. Va. 475 ; 
 
 Railroad w. Dnrant, 95 U. S. 576 ; Mory Heiskell v. Powell, 23 W. Va. 717; 
 
 V. Michael, 18 Md. 227 ; Harrlsburg Newton v. Taylor, 32 Ohio State, 399 ; 
 
 Bank v. Tyler, 3 Watts & S. 373 ; Allen Cobb v. Knight, 74 Maine, 253. 
 
 «. Withrow, 110 U. S. 119; Chace v. * Statesville Bank f. Simonton, 86 
 
 491 
 
§ 1220 PARTIES AND OTHER PARTAKERS. [BOOK 11. 
 
 § 1217. Other Contract. — Any other contract may be made 
 for the benefit, or for the burdening, of one who is not a 
 party. We saw much of this in connection with the subject 
 of agency.^ Thus, — 
 
 § 1218. Burden. — It is legitimate for one person to promise 
 a second that a third shall do a particular thing ; for example, 
 give to the second person a bond for a deed.^ Then, if the 
 third person refuses to do it, as ordinarily he may,^ the con- 
 tract is broken.* Or, what is practically more common, — 
 
 § 1219. Benefit. — The bargain between the parties may 
 be, that one of them shall confer a benefit on a third person. 
 And, if the consideration for it is adequate, the consequence 
 does not depend on the motive ; as, whether it was to do a 
 favor to the third person, or was an arrangement of con- 
 venience to the parties. Nor is it material in whose name 
 the rules of practice require the action to be brought ; as, 
 whether at law by one party against the other, or at law by 
 the third person against the party promising, or by a suit in 
 equity. The third person has open to him the one of these 
 three methods which the particular facts and the practice of 
 the court may indicate. Thus, — 
 
 § 1220. How sue. — Commonly the third person, for whose 
 benefit one has made to another a simple-contract promise on 
 adequate consideration, may sue thereon in his own name.^ 
 
 N. C. 187 ; Felton v. Smith, 84 Ind. 485 ; wrong, leaves the drawer holden. Mur- 
 
 Rohbins v. Robbins, 89 N. Y. 251 ; Kel- ray v. Jadah, 6 Cow. 484 ; Barker ». 
 
 ler tJ. Kunkel, 46 Md. 565 ; Link v. Link, Anderson, 21 Wend. 372 ; Sherman v. 
 
 90 N. C. 235; Wright v. Gay, 101 111. Comstock, 2 McLean, 19. 
 
 233; Smith v. Smith, 85 III. 189; By- * Stevens v. Webb, 7 Car. & P. 60, 
 
 ington V. Moore, 62 Iowa, 470 ; Connor 62. 
 
 V. Follansbee, 59 N. H. 124; Bailey's ^ Hendrick ». Lindsay, 93 U. S. 143; 
 
 Appeal, 15 Norris, Pa. 253; Cox v. Green y. Richardson, 4 Colo. 584 ; Fel- 
 
 Amsmann, 76 Ind. 210 ; Blakeslee v. ton v. Dickinson, 10 Mass. 287 ; Cabot 
 
 Starring, 34 Wis. 538 ; ante, § 194. v. Haskins, 3 Pick. 83; Brice v. King, 
 
 1 Ante, § 1074-1110. 1 Head, 152; Clarke v. McFarland, 5 
 
 ° Stevenson v. Fuller, 75 Maine, 324. Dana, 45 ; Edwards v. Smith, 63 Misso. 
 
 ' Bank Check. — As to whether a 119; Campbell v. Smith, 71 N. Y. 26; 
 
 bank may refuse to pay a check which Green v. Morrison, 5 Colo. 18 ; Meyer 
 
 a depositor, having funds therein, has v. Lowell, 44 Misso. 328 ; Anthony v. 
 
 drawn upon it, see State Sav. Assoc, v. Herman, 14 Kan. 494; Snell v. Ives, 85 
 
 Boatmen's Sav. Bank, 11 Misso. Ap. 111.279; Stariha u. Greenwood, 28 Minn. 
 
 292. But its refusal, whether right or 521 ; Todd ». Weber, 95 N. Y. 181. 
 
 492 
 
CHAP. XLTII.] OTHER THIRD PERSONS. § 1220 
 
 But this is not held quite so in all the States ; ^ and there are 
 exceptions, more or less generally recognized.^ For example, 
 if one takes a deed of land, subject to a prior mortgage, prom- 
 ising to pay to the mortgagee, who is not a party to the trans- 
 action, the mortgage debt, this promise can transmit no right, 
 consequently no right of action, to him ; it can operate only 
 as a guaranty to the mortgagor, now the grantor in the deed, 
 who may sue upon it personally after he has been damnified. 
 For to this extent only, whatever be the words of promise, 
 does the consideration ^ go. The land is the sole considera- 
 tion in the case ; the mortgagee had, for his security, the 
 whole of it, including what the grantee in the deed now 
 takes, by the prior conveyance to him. Nothing passes to 
 the grantee in the deed, which can be deemed a fund out of 
 which to pay the mortgage, except what the mortgagee al- 
 ready holds under a prior title. As to him, there is no con- 
 sideration, either put into his own hands, or placed in the 
 hands of the party to the deed for his use, — not even a gift 
 of an atom, — which can operate, directly or indirectly, as a 
 consideration for the promise to pay him. As to any rights 
 of his, the promise is simply void, and there is no occasion to 
 inquire who shall be the parties.* In specialties, most courts 
 
 1 Robertson v. Reed, 1 1 Wright, Pa. ing not even, a glimmer of the real doc- 
 115; Konntz v. Holthouse, 4 Norris, Pa. trine, wrote me asking whether I really 
 235 ; Eastman v. Ramsey, 3 Ind. 419; belieyed it ; or whether, as it seemed to 
 Bird V. Lanias, 7 Ind. 615; Davis v. him, I had played a trick on the court, 
 Calloway, 30 Ind. 112 ; Durham v. and humbugged the entire bench. I 
 Bischof, 47 Ind. 211. certainly believed it then, and do yet; 
 
 2 Dow V. Clark, 7 Gray, 1 98. that is, the doctrine which I argued to 
 
 * Thornton v. Smith, 7 Misso. 86. the judges, and which, I know, led to 
 
 * Mellen v. Whipple, 1 Gray, 317. tHe conclusion. I know this because of 
 This was one of the last cases I ever observations made by individual judges, 
 argued to a court; it was after I had particularly the very eminent Chief Jus- 
 left practice for law writing, — a remnant tice, and questions to the opposing conn- 
 lingering from former business. The sel, during and at the close of the 
 opinion in the report does not make the arguments. This question has since 
 reasoning which carried the tribunal so been before various other courts ; and, 
 plain as might be desired. The learned so far as I have observed, the real argu- 
 judge, who wrote it, once expressed to ment has seldom been understood. See 
 me his dissatisfaction with it in this re- further as to this question and case, 
 spect. And I remember, that, sometime Crowell v. Hospital of St. Barnabas, 12 
 afterward, a very eminent lawyer in C. E. Green, 650. 
 
 another State, getting from the reason- 
 
 493 
 
§ 1223 PARTIES AND OTHEB PARTAKEES. [BOOK II. 
 
 do not permit a suit in the third person's name, yet some do.^ 
 Jn trusts, the suit at law is in the name of the trustee ; ^ in 
 equity, oftener in the name of the cestui que trust, sometimes 
 the trustee joining.'* And it is the nearly or quite universal 
 course in equity to make the plaintiff in interest the plaintiff 
 of record.* There are minor distinctions ; but, on a ques- 
 tion of mere practice, it would not accord with the plan of 
 this work to proceed further. Returning from practice to 
 doctrine, — 
 
 § 1221. On what Principle — (Gift). — When the third per- 
 son has put something of his own into the consideration for 
 the contract, the promise therein for his benefit is but the 
 natural return therefor, and the propriety of permitting him 
 to avail himself of it is obvious. But the greater number of 
 cases are of a different sort ; the promise is a gift, or the ten- 
 der of a gift, made by the parties either out of kindness to 
 him, or for their own convenience. An illustration of the 
 former sort is a voluntary conveyance of property by a hus- 
 band to a trustee, who promises to hold it for the grantor's 
 wife,^ to her separate use. An illustration of the latter sort 
 is the promise, by the purchaser of a business, to pay the 
 subsisting debts. Now, — 
 
 § 1222. Accepting or rejecting Gift. — Though the law pre- 
 sumes that one accepts what is tendered him for his benefit,® 
 still he has the right to decline, and the fact may be that he 
 does. The case is one of election and waiver, already ex- 
 plained ; ^ or, exactly, it is within the principle of unauthor- 
 ized contracts by agents, and their ratification.* Hence, — 
 . § 1223. Parties receding or not. — Since a contract between 
 two in favor of a third, who had no part in it, is the mere 
 tender of a benefit, the two can mutually rescind it at any 
 
 > Ante, § 1070; Millard v. Baldwin, Maine, 82; Burlew v. Hillman, I C. E. 
 
 3 Gray, 484 ; Clarkson v. Doddridge, Green, 23. 
 14 Grat. 42. ' Scruggs v. Alexander, 72 Misso. 
 
 S Treat v. Stanton, 14 Conn. 445. 134. 
 
 ' Dunn V. Seymour, 3 Stock. 220; « Ante, § 351, 923. 
 Tucker v. Palmer, 3 Brev. 47. ' Ante, § 777-808. 
 
 * Frye v. Bank of Illinois, 5 Oilman, 8 Ante, § 1091. 
 
 332 ; Mason v. York, &c. Railroad, 52 
 
 494 
 
CHAP. XLVII.] OTHER THIRD PERSONS. § 1225 
 
 time before acceptance by the third.^ Afterward, and in 
 other circumstances, the rescission requires the concurrence 
 of the third person.^ And this is within the general doctrine, 
 that, where one bargains for another without authority, the 
 latter may ratify ^ or repudiate * the bargain at his pleasure. 
 Again, — 
 
 § 1224. Sort of Contract. — As the third person occupies a 
 position analogous to that of an assumed principal for whom 
 one has contracted as agent without authority, the promise 
 must in terms be for his benefit ; ^ and he must be legally 
 competent to receive the thing, and perform his part.® 
 
 § 1225. other Principles — of the law of unauthorized 
 agency may well be applied to this contract ; such as, that 
 the ratification must be either with full knowledge of what 
 has been done ; ^ " or," in the words of Willes, J., " with in- 
 tention to adopt it at all events and under whatever circum- 
 stances ; " ^ lacking which, it may be avoided, at least to th6 
 extent of the misapprehension.^ It must be of the entire 
 provision or none;^'' and, if the contract was fraudulent, it 
 must include the fraud and its consequences.^^ Finally, — 
 
 1 Merrick u.Giddings, iMackey, 394; Cal. 591 ; Ashbury Railway, &c. Co. 0. 
 
 Amonett v. Montague, 75 Misso. 43 ; Riche, Law Rep. 7 H. L. 653, 674, 
 
 Thompson v. Parker, 83 Ind. 96. See 679. 
 
 Humphrey v. Worth, 3 Out. Pa. 185. ' Ante, § 1109; Rowan v. Hyatt, 45 
 
 ^ Levistones v. Landreaux, 6 La. N. Y. 138; Clarke v. Lyon, 7 Nev. 75; 
 
 An. 26. And see Wood v. McCain, 7 Bray v. Gunn, 53 Ga. 144; Owings v. 
 
 Ala. 800; Taylor v. Robinson, 14 Cal. Hull, 9 Pet. 607 ; Dickinson v. Conway, 
 
 396 ; Fiske v. Holmes, 41 Maine, 441. 12 Allen, 487 ; Pittsburgh, &c. Railroad 
 
 3 Ante, § 1106, 1108; Grantw. Beard, v. Gazzam, 8 Casey, Pa. 340. 
 SON. PI. 129; Ryan v. Doyle, 31 Iowa, * Phosphate of Lime Co. v. Green, 
 53 ; Bronson v. Chappell, 12 Wal. 681 ; Law Rep. 7 C. P. 43, 57. 
 Dressfer v. Wood, 15 Kan. 344; Work- ^ Miller a. Sacramento, 44 Cal. 166. 
 man ». Campbell, 57 Misso. 53; Bryan ^^ Ante, § 1110; Southern Express v. 
 V. Robert, 1 Strob. Eq. 334 ; Hammond Palmer, 48 Ga. 85 ; Crawford v. Bark- 
 V. Hannin, 21 Mich. 374 ; Wright v. ley, 18 Ala. 270; Henderson v. Cum- 
 Burbank, 14 Smith, Pa. 247 ; Williams mings, 44 111. 325 ; Widner v. Lane, 14 
 V. Butler, 35 111. 544 ; Mclntyre v. Park, Mich. 124 ; Coleman v. Stark, 1 Oregon, 
 11 Gray, 102; Bragg u. Fessenden, H 115. See Bangor Boom Corp. «. Whit- 
 Ill. 544. ing, 29 Maine, 123. 
 
 * Ante, § 781, 784, 823, 831, 1106. " Ante, § 1112-1114; Crans w. Hnn- 
 « Ante, § 1106, 1108; Collins v. ter, 28 N. Y. 389; Law v. Grant, 37 
 
 Suau, 7 Rob. N. Y. 623 ; Commercial, Wis. 548. See Brook v. Hook, Law 
 &c.B4nku. Jones, 18 Texas, 8n. Rep. 6 Ex. 89. 
 
 * McCracken v. San Francisco, 16 
 
 495 
 
§ 1227 PARTIES AND OTHER PARTAKERS. [BOOK II. 
 
 § 1226. Methods of Ratification. — The doctrines as to the 
 methods of ratifying other unauthorized contracts ^ apply to 
 these. One is the express authorization of the bargaining, in 
 terms as though it had not been done.^ Another is, by ac- 
 cepting and using what is thus promised ; ^ or, by any other 
 conduct in harmony only with the theory of ratification.^ 
 Hence, bringing a suit on an unauthorized contract affirms 
 it ; ^ and such, in some circumstances, is the neglect to repu- 
 diate what one knows to have been done.^ 
 
 § 1227. The Doctrine of this Chapter restated. 
 
 It is common in the affairs of life, and approved by the 
 law, for one person to hold title to a thing for the benefit of 
 another. The ordinary case is technically termed a trust. 
 But the principle extends also to like arrangements not 
 known by this name. Where two persons make a contract 
 partly or altogether for the benefit of a third, one or both of 
 the two occupy in effect the place of trustees, and the third 
 is a sort of cestui que trust. If he had no part in the arrange- 
 ment, he may accept or decline the benefit as he chooses. If 
 he procured it, or if, being a stranger to the arrangement, he 
 confirmed it on its coming to his knowledge, the law permits 
 him, like any other cestui que trust, to enforce his rights in 
 the tribunals. But, like any other party in interest, he must 
 ;adapt his forms of procedure to the course of the court to 
 which he applies. 
 
 1 Ante, § 1 109. 232 ; Dodge ». Lambert, 2 Bosw. 570 ; 
 
 2 Rice V. McLarren, 42 Maine, 1.57. Hampshire v. Franklin, 16 Mass. 76, 87 ; 
 
 3 Ketchum v. Verdell, 42 Ga. 534 ; Corser v. Paul, 41 N. H. 24 ; Franklin 
 Lyman v. Norwich University, 28 Vt. v. Ezell, 1 Sneed, Tenn. 497 ; Walker 
 560. V. Mobile, &c. Railroad, 34 Missis. 245. 
 
 < Maddux v. Bevan, 39 Md. 485 ; See St. Mary's Bank v. Calder, 3 Strob. 
 
 Hankins v. Baker, 46 N. Y. 666 ; Dough- 403. 
 
 aday v. Crowell, 3 Stock. 201 ; Skinner « Brigham v. Peters, 1 Gray, 139 ; 
 
 i>. Dayton, 19 Johns. 513; Perkins v. Lindsley u. Malone, 11 Harris, Pa. 24; 
 
 Missouri, &c. Railroad, 55 Misso. 201. Bray v. Gunn, 53 Ga. 144; Ward v. 
 
 See Fried v. Royal Ins. Co. 50 N. Y. Williams, 26 111. 447 ; Law v. Cross, 1 
 
 243 ; White v. Sanders, 32 Maine, 188. Black, 533 ; Owsley v. Woolliopter, 14 
 
 5 Beloit Bank v. Beale, 34 N. Y. 473 ; Ga. 124. See Clarke v. Meigs, 10 Bosw. 
 
 First Parish in Sutton v. Cole, 3 Pick. 337 ; Reese v. Medlock, 27 Texas, 120. 
 496 
 
CHAP. XLVIII.] STATUTE OP FRAUDS. § 1229 
 
 BOOK III. 
 CONTRACTS REQUIRED TO BE IN WRITING. 
 
 CHAPTER XLVIII. 
 
 THE STATUTE OF FRAUDS. 
 
 § 1228. Introduction. 
 1229-1233. The Statute. 
 
 1234-1249. Rules Common to the Several Clauses. 
 1250-1255. Promises by Executors and Administrators. 
 1256-1266. Promise to answer for Another. 
 1267-1271. On Consideration of Marriage. 
 1272-1284. Not to be performed within a Tear. 
 1285. Doctrine of Chapter restated. 
 
 § 1228. How Chapter divided. — We shall consider, I. The 
 Statute ; II. Rules Common to the Several Clauses ; III. 
 Promises by Executors and Administrators ; IV. The Prom- 
 ise to answer for another's Debt, Default, or Miscarriage ; 
 V. The Agreement on Consideration of Marriage ; VI. Agree- 
 ments not to be Performed within a Year. 
 
 I. The Statute. 
 
 § 1229. Origin and History. — Just one hundred years prior 
 to the Declaration of our National Independence, the parlia- 
 ment of the mother country enacted the most important 
 statute ever promulgated in either country, relating to civil 
 affairs. It is 29 Car. 2, c. 3, A. D. 1676, entitled " An Act 
 for Prevention of Frauds and Perjuries." After a lapse of 
 over two hundred years, during which its influence has been 
 32 497 
 
§ 1232 REQCriRED TO BE IN WEITING. [BOOK III. 
 
 constantly present in every avenue of business, it is still, as 
 to the clauses explained in this chapter, in force in Eugland.i 
 It came subsequently to the settlement of the earlier Ameri- 
 can colonies, but it was accepted as law in Maryland ^ and 
 probably in some of the others.^ And, — 
 
 § 1230. American Legislation. — In all our States, with per- 
 haps one or two exceptions, statutes have been enacted on 
 the pattern of this one ; yet with enough of slight differences 
 from it, and from one another, to admonish practitioners to 
 consult and take for their guide, each the statute-book of his 
 own State.* This enactment, whether spoken of with refer- 
 ence to the English law or that of any one of our States, is 
 termed, for short, the " Statute of Frauds." 
 
 § 1231. Changes wrought thereby. — By the prior law, as 
 already seen,^ nearly every contract had the same effect when 
 oral as when written. This statute selects from the mass of 
 contracts certain ones, and makes writing essential to them, 
 leaving the rest where they stood before. Those for this 
 chapter, including such as relate to land, to be explained in 
 the next, depend on the — 
 
 §1232. Fourth Section — asfoUows: — 
 
 " No action shall be brought whereby to charge any executor or 
 administrator, upon any special promise, to answer damages out of his 
 own estate ; or whereby to charge the defendant upon any special 
 promise to answer for the debt, default, or miscarriages of aoother per- 
 son ; or to charge any person upon any agreement made upon consid- 
 eration of marriage ; or upon any contract or sale of lands, tenements, 
 or hereditaments, or any interest in or concerning them ; or upou any 
 
 1 As to modifications and repeals of 7 ; Thornton v. Corbin, 3 Call, 384 ; 
 parts, see 7 Will. 4 & 1 Vict. c. 26, § 2; Ball v. Ball, 2 Bibb, 65 ; Badon v. Ba- 
 42 & 43 Vict. c. 59, § 2 ; 44 & 45 Vict, ban, 4 La. An. 467 ; Eiddle v. Ratliff, 
 c. 59, § 3. 8 La. An. 106 ; Allen v. Moss, 27 Misso. 
 
 2 Olayland v. Pearce, 1 Har. & McH. 354 ; Gibson v. Chouteau, 39 Misso. 
 29 ; Kilty Rep. Stats. 240. 536 ; Monroe v. Searcy, 20 Texas, 348 ; 
 
 ' Bishop First Book, § 54, 56, 58. Thomas v. Hammond, 47 Texas. 42 ; 
 
 * Bowman w. Conn, 8 Ind. 58; Vio- Wolf v. Dozer, 22 Kan. 436; Patmors. 
 
 lett V. Patton, 5 Cranch, 142; Sorrell v. Haggard, 78 111. 607 ; Harvey v. Gard- 
 
 Jackson, 30 Ga. 901 ; D' Wolf v. Babaud, ner, 41 Ohio State, 642, 646 ; Philbrook 
 
 1 Pet. 476 ; Westheiraer v. Peacock, 2 ti. Belknap, 6 Vt. 383. 
 Iowa, 528; Dunn v. Tharp, 4 Ire. Eq. 5 Ante, § 151-160; post, § 1326. 
 
 498 
 
CHAP. XLVIII.] STATUTE OP FRAUDS. § 1236 
 
 agreement that is not to be performed within the space of one year from 
 the making thereof : unless the agreement upon which such, action shall 
 be brought, or some memorandum or note thereof, shall be in writing, 
 and signed by the party to be charged therewith, or some other person 
 thereunto by him lawfully authorized." 
 
 § 1233. Seventeenth Section. — The seventeenth section, 
 relating to the sale of goods, to be quoted in the chapter on 
 that subject,^ is in terms somewhat different ; and it should 
 not be confounded with this fourth section. 
 
 II. Mules Common to the Several Clauses. 
 
 § 1234. After executed. — The statute, instead of declaring 
 the unwritten contract to be without effect, provides only 
 that " no action shall be brought whereby to charge " another 
 on it.2 When, therefore, it has been executed, and so there 
 is no longer occasion for an " action," the result is precisely 
 the same as though there were no statute ; if the oral bar- 
 gaining, thus consummated, would have been good before its 
 enactment, no more can it be invalidated now.^ Even, — 
 
 § 1235. Executed on one Side. — Looking again at the terms 
 of the statute, the reader perceives that, largely, they bind 
 one of the parties to a bargaining, not both. No action is to 
 be brought on certain oral promises specified, — such as, to 
 pay another's debt, to sell lands, or do anything else after the 
 lapse of a year, — but the inhibition does not extend to the 
 consideration which the other party undertakes to pay for 
 the doing. Hence, when the one who need not have done 
 the thing because his promise was oral, has voluntarily per- 
 formed, he may have his action against the other for the con- 
 sideration orally promised, the statute not forbidding.* But 
 
 1 Post, § 1.311. Smith, 9 Minn. 252; Westfall v. Par- 
 
 2 Fowler v. Bnrget, 16 Ind. 341; sons, 16 Barb. 645 ; Shaw ». "Woodcock, 
 Montgomery u. Edwards, 46 Vt. 151. 7 B. & C. 73; Newman v. Nellis, 97 
 
 8 Ante, § 634 ; Stone v. Dennison, 13 N. Y. 285 ; Crane v. Gough, 4 Md. 316. 
 
 Pick. 1 ; Bolton v. Tomlin, 5 A. & E. See Sanderson v. Graves, Law Rep. 10 
 
 856; Swanzey v. Moore, 22 Dl. 63; Ex. 234, 2-38, 241. 
 Nutting V. McCutcheon, 5 Minn. 382; * Sims ti. McEwen, 27 Ala. 184; Mc- 
 
 Slatter v. Meek, 35 Ala. 528; McCue v. Ghicky v. Bitter, 1 E D. Smith, 618 ; 
 
 499 
 
§ 1237 REQUIRED TO BE IN WRITING. [BOOK IH, 
 
 if it is the consideration which has been thus voluntarily ren- 
 dered, whether partly or even fully, the one from whom it 
 proceeded cannot sue the other who refuses ; because the 
 statute forbids.^ Even such other, after having partly per- 
 formed, may, except where barred by estoppel,^ confronted 
 by equity, or something else out of the ordinary course, there 
 stop, and in a court of law rely on the statute as to the 
 residue.^ 
 
 § 1236. Remedies after Performance in Part. — When the 
 one party to the oral bargaining has paid the consideration 
 or any portion of it, and the other, relying on the statute, 
 refuses the promised performance, the former may recover 
 back, in a suit at law, the money or other value which he has 
 paid.* But he cannot so recover it if the latter stands ready 
 to perform.^ There are cases of hardship, less simple in their 
 facts, to which this remedy at law is not adapted ; nor, for 
 some of them, do our forms of judicial procedure furnish any 
 remedy. Still, — 
 
 § 1237. In Equity. — under the jurisdiction to suppress 
 fraud, relief may be granted in some of the cases to which 
 the forms at law are imperfectly or not at all adapted. 
 Though the Statute of Frauds binds the equity ^ the same as 
 the law tribunals, it does not abrogate the prior equity jurisdic- 
 tion over fraud. And it is a palpable fraud for one man to 
 entice another with promises to change his course of action, 
 
 Ray V. Young, 13 Texas, 550 ; Zabel v. Scott, N. K. 486, Car. & M. 351, 6 Jur. 
 
 Schroeder, 35 Texas, 308; Philbrook 194. 
 
 V. Belknap, 6 Vt. 333; Knowlman ». * Hawley v. Moody, 24 Vt. 603; 
 
 Blaett, Law Rep. 9 Ex. 1 ; Adams v. Marquat v. Marquat, 7 How. Pr. 417 ; 
 
 Honness, 62 Barb. 326, 335, 336 ; Tink- Baldwin v. Palmer, 6 Selden, 232, 235 ; 
 
 ler V. Swaynie, 71 Ind. 562. Montague j;. Garnett, 3 Bush, 297. 
 
 1 Kidder t>. Hunt, 1 Pick. 328 ; Pierce ^ CougUin v. Knowles, 7 Met. 57 
 ». Paine, 28 Vt. 34 ; Wood v. Jones, 35 (which compare with King v. Welcome, 
 Texas, 64 ; Plenner v. Flenner, 29 Ind. 5 Gray, 41, 44) ; Swanzey i». Moore, 22 
 564 ; Davis v. Moore, 9 Rich. 215 ; Os- 111. 63 ; Pluramer v. Bncknam, 55 Maine, 
 bom «. Phelps, 19 Conn. 63 ; Hawley v. 105. 
 
 Moody, 24 Vt. 603. 6 Watson w. Erb, 33 Ohio State, 35, 
 
 2 Miller v. McManis, 57 111. 126; 50; Abell v. Calderwood, 4 Cal. 90; 
 Brightman y. Hicks, 108 Mass. 246. Patterson v. Teaton, 47 Maine, 308; 
 
 "Baldwin «. Palmer, 6 Selden, 232 ; Beaman u. Buck, 9 Sra. & M. 207; 
 Kidder v. Hunt. 1 Pick. 328 ; Weir v. Skipwith v. Dodd, 24 Missis. 487. 
 Hill, 2 Lans. 278 ; Hubert v. Turner, 4 
 
 500 
 
CHAP. XLVIII.] STATUTE OF FRAUDS. § 1237 
 
 and to his injuiy part with his effects or his services, then 
 fall back on the statute to avoid doing what he had led the 
 other to expect. Therefore, in cases within this principle,^ 
 and not remediable at the common law, equity will compel 
 performance, or compel some other proper adjustment. Here- 
 in, as on other questions, the courts of the present day follow 
 the ancient precedents. Ordinarily, perhaps always,^ they 
 cover simply real estate transactions ; the line of precedent 
 may not in every particular be wisely drawn ; but, as a whole, 
 it is believed to conform to natural justice. Actual fraud is 
 not always required as foundation for the relief, the construc- 
 tive will often suffice ; namely, fraud in equitable law. And 
 it has become a sort of general rule that, where there is fraud 
 either constructive or actual, and there has been such per- 
 formance in part or in full on the one side as, if performance 
 is not compelled on the other, will leave the former party 
 defrauded ,8 equity will enforce it. A minuter unfolding of 
 the doctrine here is not desirable.* This is not, as the non- 
 professional reader might deem, a violation of the statute ; 
 for every statute, even a written constitution, is, and ought 
 to be,- interpreted as subject to qualifications and exceptions 
 
 1 This is the principle of estoppel 3 Watts & S. 56 ; Watkins v. Watkins, 
 in pais, or equitable estoppel, applied 24 Ga. 402 ; Watson v. Mahan, 20 Ind. 
 equally by courts of law and courts of 223 ; Cole v. Potts, 2 Stock. 67 ; Malins 
 equity. Ante, § 280, 281, 284. But, v. Brown, 4 Comst. 403 ; Ryan v. Dox, 
 in the cases contemplated in the text, 34 N. Y. 307 ; Coyle v. Davis, 20 Wis. 
 the forms at law do not admit of its ap- 564; Blanchard v. McDougal, 6 Wis. 
 plication, while the more flexible forms 167; Parke v. Leewrighf, 20 Misso. 85; 
 in equity do. Brashier v. Gratz,'6 Wheat. 528 ; Brewer 
 
 2 McElroy v. Lndlum, 5 Stew. Ch. v. Brewer, 19 Ala. 481 ; Weber v. Mar- 
 828. shall, 19 Cal. 447 ; Farrar v. Patton, 20 
 
 3 Compare with ante, §284,286,300- Misso. 81; Dickerson v. Chrisman, 28 
 302, 309. Misso. 134 ; Ham v. Goodrich, 33 N. H. 
 
 * Consult the books on equity juris- 32; Pinckard v. Pinckard, 23 Ala. 649 ; 
 
 diction; also, Browne Stat. Frauds, Davis w. Moore, 9 Rich. 215; Meach ». 
 
 § 437-502 ; Nunn v. Fabian, Law Rep. Stone, 1 D. Chip. 182 ; Osborn v. Phelps, 
 
 1 Ch. Ap. 35 ; Coles v. Pilkington, Law 19 Conn. 63 ; Harder w. Harder, 2 Sandf. 
 
 Rep. 19 Eq. 174; Caton v. Caton, Law Ch. 17; Rhodes v. Rhodes, 3 Sandf. Ch. 
 
 Rep. 2 H. L. 127, 136, 1 Ch. Ap. 137 ; 279 ; Brizick v. Manners, 9 Mod. 284, 
 
 Jervis v. Berridge, Law Rep. 8 Ch. Ap. 285 ; Taylor v. Luther, 2 Sumner, 228 ; 
 
 351 ; Burnett v. Blackmar, 43 Ga. 569 ; Brandeis u. Neustadtl, 13 Wis. 142 ; Fox 
 
 Freeman v. Cooper, 14 Ga. 238; Gup- v. Longly, 1 A. K. Mar. 388; Watson 
 
 ton V. Gupton, 47 Misso. 37 ; Annan v. v. Erb, 33 Ohio State, 35 ; Cannon v. 
 
 Merritt, 13 Conn. 478; Pugh v. Good, Collins, 3 Del. Ch. 132. 
 
 501 
 
§ 1239 REQUIRED TO BE IN WRITING. [BOOK III. 
 
 derivable from principles outside itself, else no written law 
 could be safely made, and unintended injustice could not be 
 avoided.^ 
 
 § 1238. Voidable, not Void. — The books, following the 
 loose forms of expression already pointed out,^ often speak 
 of the oral contract within the Statute of Frauds as " void." 
 In truth it is not so, but voidable. " No action " shall be 
 maintained to "charge" one upon it, but for all other pur- 
 poses it is good.^ Thus, — 
 
 § 1239. lUustrations — (Waiver — Strangers — Pleading). — 
 The party may perform it if he will ; * or, being sued, he may 
 rely on the statute or not at his pleasure ; he cannot be com- 
 pelled.^ To avail himself of it, he must plead it ® and claim 
 its benefit.''' Privies succeed to his right, yet the defence of 
 the statute cannot be made by a stranger.^ One suing on a 
 contract required by the statute to be in writing need not 
 aver that it is so, but any setting out of it may be silent as to 
 whether it is written or oral,^ — a rule for which other rea- 
 sons are commonly assigned ; yet it is believed that, if the 
 contract was on the face of the averment a mere nullity unless 
 in writing, the special fact which gave it validity must be 
 alleged. Still — 
 
 1 Bishop Written Laws, § 74, 82, 86, Whitney r. Cochran, 1 Scam. 209, 
 88-90, 92, 102, 103, 123, 131. 210. 
 
 2 Ante, § 616. * Jacob v. Smith, 5 J. J. Mar. 380; 
 
 8 Ante, § 1234; Maddison v. Alder- Cahill u. Bigelow, 18 Pick. 369; Kirk- 
 son, 8 Ap. Cas. 467, 488; Cooper v. sey w. Kirksey, 30 6a. 156. 
 Hornsby, 71 Ala. 62 ; Leroux v. Brown, ^ Bailey ». Irwin, 72 Ala. 505. 
 
 12 C. B. 801 ; JFowler v. Burget, 16 '' Skinner v. McDouall, 2 De 6. & 
 
 Ind. 341 ; Crane i;. Gough, 4 Md. 316 ; Sm. 265, 12 Jur. 741. 
 
 Sims V. Hutohins, 8 Sm. & M. 328 ; ^ Chicago Dock Co. v. Kinzie, 49 111. 
 
 Minns v. Morse, 15 Ohio, 568 ; Potta v. 289, 293; Bohannon v. Pace, 6 Dana, 
 
 Merrit, 14 B. Monr. 406 ; Philbrook v. 194; Cooper w. Hornsby, 71 Ala. 62, 65. 
 
 Belknap, 6 Vt. 383 ; Swanzey v. Moore, ' Horm r. Shamblin, 57 Texas, 243 ; 
 
 22 III. 63 ; Gray v. Gray, 2 J. J. Mar. Benton v. Schulte, 31 Minn. 312 ; Sweet- 
 
 21; Harrow v. Johnson, 3 Met. Ky. land w. Barrett, 4 Mont. 217; MuUalyv. 
 
 578; McCampbell v. McCampbell, '5 Holden,123 Mass. 583; Marstoni;. Swett, 
 
 Litt. 92 ; Cornellison v. Cornellison, 1 66 N. Y. 206 ; Hurlburt v. Wheeler & 
 
 Bush, 149; Lucas v. Mitchell, 3 A. K. Wilson Manuf. Co. 38 Ark. 594, 598; 
 
 Mar. 244. And see 1 Bishop Mar. Porter o. Drennan, 13 Bradw. 362; 
 
 Women, § 807, 810, 811 ; post, § 1323. Young v. Austen, Law Eep. 4 C. P- 
 
 * Aicardi v. Craig, 42 Ala. 311; 553 ; Ecker u. Bohn, 45 Md. 278 ; Eoker 
 
 Godden v. Pierson, 42 Ala. 370 ; v. McAllister, 45 Md. 290. 
 502 
 
CHAP. XLVIII.] STATUTE OF FRAUDS. § 1244 
 
 § 1240. Actions other than on Contract. — The party may 
 plead the statute in bar of a collateral action, based on the 
 contract, as well as of a direct action on the contract itself.^ 
 Again, — 
 
 § 1241. Rescission. — A contract which the statute requires 
 to be written may be rescinded orally .^ 
 
 There are nice questions relating to the — 
 
 § 1242. " Memorandum or Note " of the Agreement : — 
 
 Distinguished from " Agreement " — Informal. — The stat- 
 ute distinguishes between the " agreement " and " some 
 memorandum or note thereof," and declares the latter to 
 be sufficient.^ It may, therefore, be merely informal.* 
 Hence — 
 
 § 1243. Subsequent Recognition. — A subsequent recogni- 
 tion, in writing, of a verbal agreement, will be adequate.^ 
 But it must be before the suit is brought.^ 
 
 § 1244. Signed. — It must be " signed by the party to be 
 charged therewith, or some other person thereunto by him 
 lawfully authorized." ^ To be merely in the handwriting of 
 such party is not sufficient.^ We have already seen what 
 constitutes a signing.^ For example, a printed letter-head 
 above the memorandum is a sufficient signing if the jury find 
 that the party meant,^<* or adopted and appropriated, it as 
 such.^^ And, broadly, it is immaterial in what part of the 
 instrument the name intended to be a signature is located .^^ 
 A signing by the agent, simply in his own name, is suf- 
 ficient.^* 
 
 1 Davis V. Moore, 9 Eich. 215; Webster w. Zielly, 52 Barb. 482 ; Bird 
 Banks v. Crossland, Law Eep. 10 Q. B. v. Munroe, 66 Maine, 337. 
 
 97, 100. ' Ante, § 1232 ; Washington Ice Co. 
 
 2 Ante, §130, 135, 174; Arrington v. Webster, 62 Maine, 341; Barry v. 
 V. Porter, 47 Ala. 714; Guthrie v. Law, 1 Cranch C. C. 77; Sanborn v. 
 Thompson, 1 Oregon, 353. Sanborn, 7 Gray, 142 ; Brown v. Whip- 
 
 8 Ante, § 1232. pie, 58 N. H. 229. 
 
 ♦ Hurley v. Brown, 98 Mass. 545, » Champlin w. Parish, 11 Paige, 405; 
 
 546. Selby ». Selby, 3 Merir. 2. 
 
 6 Gale V. Nixon, 6 Cow. 445. See » Ante, §343-345. 
 
 Adams v. McMillan, 7 Port. 73 ; New- ^ Ante, § 347, 348. 
 
 bery v. Wall, 65 N. Y. 484 ; Smith v. ii Drury v. Young, 58 Md. 546. 
 
 Jones, 66 Ga. 338. i^ Ogilvie v. Foljambe, 3 Meriv. 53. 
 
 6 BiU V. Bament, 9 M. & W. 36 ; ^ Ante, § 1074, 1079, 1080, 1082 ; 
 
 503 
 
§1246 
 
 REQUIRED TO BE IN WRITING. 
 
 [book III. 
 
 § 1245. Lawfully authorized — (Auctioneer — Broker). — 
 We have seen who may be agents and how they are em- 
 powered.i Thus, an auctioneer is, within limits before pointed 
 out, the agent of both parties to make the required memo- 
 randum.2 But if an ordinary agent of the vendor makes it, 
 he does not bind the purchaser, not being, like the auctioneer, 
 his agent also.^ The auctioneer's authority as agent cannot 
 be delegated to another ;* or, as to the signing, postponed to 
 a future time.^ 
 
 § 1246. Only One Party Signing. — These contracts, like all 
 other actual ones, require the mutual consent of the parties ; ^ 
 
 Wiener v. "Whipple, 53 Wis. 298 ; 
 Wharton v. Stoutenburgh, 8 Stew. Ch. 
 266. 
 
 1 Ante, § 1034-II10. 
 
 >' Ante, § 1038, 1039. 
 
 3 Bamber v. Sarage, 52 Wis. 110; 
 Farebrother v. Simmons, 5 B. & Aid. 
 333. But not when he is employed sim- 
 ply to make the outcry, and use the 
 hammer, while the owner stands by and 
 in all other respects conducts the sale. 
 Adams v. Scales, I Baxter, 337. 
 
 * Ante, § 1134. 
 
 6 Bamber v. Savage, supra, at p. 113 ; 
 Jelks V. Barrett, 52 Missis. 315 ; Gwath- 
 noy V. Cason, 74 N. C. 5. In Gill v. 
 Bicknell, 2 Cush. 355, 358, Shaw, C. J. 
 explains the reason for this power of the 
 auctioneer ; thus, — " The true reason 
 probably is, that a sale at auction, being 
 open and visible and in presence of wit- 
 nesses . . . closely watching the pro- 
 ceeding, there is less danger of fraud 
 and perjury in proving the making and 
 terms of the contract, and so the main 
 reason for requiring a memorandum in 
 writing does not exist. The technical 
 ground is, that the purchaser, by the 
 very act of bidding, connected with the 
 usage and practice of auction sales, 
 loudly and notoriously calls on the auc- 
 tioneer or his clerk to put down his 
 name as the bidder, and thus confers an 
 authority on the auctioneer or clerk to 
 sign bis name, and this is the whole 
 extent of the authority." The reader 
 
 504 
 
 perceives, that, so far as the bidder is 
 concerned, this is the exact case men- 
 tioned at ante, § 345, of the name of 
 the maker of an instrument being writ- 
 ten " for him in his presence and at his 
 request," when the execution becomes 
 in law his personal act, the same as 
 though done by his own hand. And 
 this explains why the auctioneer cannot 
 do it afterward in his absence. As to 
 the vendor, the auctioneer is agent by 
 virtue of his employment. A broker is 
 in like manner the agent of both par- 
 ties to make the memorandum. Ante, 
 § 1038 ; Coddington v. Goddard, 16 
 Gray, 436 ; Newberry v. Wall, 84 N. T. 
 576 ; Merritt v. Clason, 12 Johns. 102; 
 Grant v. Fletcher, 5 B. & C. 436 ; Hen- 
 derson V. Barnewall, 1 Y. & J. 387. 
 The purchaser constitutes him such by 
 buying of the principal through him as 
 middle-man. And, in reason, it is not 
 clear that this middle-man is precluded 
 from making the memorandum after 
 the act of sale and purchase is ended. 
 Plainly the buyer at auction, by re- 
 questing the thing to be done in his 
 presence, does not empower the auc- 
 tioneer to do it afterward, in altered 
 circumstances. The circumstances with 
 the broker are not so much changed an 
 hour after one has consented to buy. 
 And there are various other differences. 
 How the law really is as to brokers this 
 is not the place further to inquire. 
 « Ante, § 312 et seq. 
 
CHAP. XLVIII.] STATUTE OP FRAUDS. § 1248 
 
 but only the one to be charged need sign the memorandum, 
 though commonly in practice both do.^ Further as to its 
 contents, — 
 
 § 1247. Consideration. — To be binding, this contract, like 
 any other, must proceed on a consideration.^ But, in prin- 
 ciple, if at common law a written contract need not express 
 the consideration, which may be proved by oral evidence as 
 already explained,^ the result seems to follow that the writ- 
 ten memorandum under this statute need not mention it. 
 Yet the English courts, reasoning from the particular statu- 
 tory word " agreement," require it to be expressed, or to be 
 inferable from what is expressed ; * at the same time, under 
 the section relating to the sale of goods, employing the word 
 " contract " instead, they hold the memorandum which is 
 silent as to the consideration sufficient.^ A part of our 
 American tribunals follow this English interpretation, while 
 others do not require the consideration to be expressed in any 
 case ; and the statutes of our States differ.^ . So, for further 
 explanations, the reader is referred to his own domestic books. 
 
 § 1248. As to Minds in Accord. — Within the principle that, 
 whether the contract is signed by both parties or only by the 
 one to be bound, the two minds must come into accord,'' a 
 memorandum in materially-differing parts, with nothing to 
 indicate the true reading,^ will be inadequate.^ This is often 
 
 1 Beuss V. Picksley, Law Kep. 1 Ex. 345; Britton v. Angier, 48 N. H. 420 ; 
 342; Shirley v. Shirley, 7 Blackf. 452; Bean v. Valle, 2 Misso. 126; Sorrell v. 
 Douglass V. Spears, 2 Nott & McC. 207 ; Jackson, 30 Ga. 901 ; Gummings v. Den- 
 Morin v. Martz, 13 Minn. 191 ; McCrea nett, 26 Maine, 397 ; Lent v. Padelford, 
 V. Purmort, 16 Wend. 460; Davis v. 10 Mass. 230; Sears ». Brink, 3 Johns. 
 Shields, 26 Wend. 341 ; Waul w. Kirk- 210; Thompson t». Blanchard, 3 Comst. 
 man, 27 Missis. 823; Justice w. Lang, 42 335; Violett t>. Patton, 5 Cranch, 142; 
 N. Y. 493 ; Hatton v. Gray, 2 Cas. Ch. Patmor v. Haggard, 78 111. 607 ; Bartlett 
 164. V. Matson, 1 Misso. Ap. 151 ; Boiling v. 
 
 2 Tenney w. Prince, 4 Pick. 385, 387. Munchus, 65 Ala. 558 ; Thornburg v. 
 8 Ante, § 75, 124, note, 275. ' Masten, 88 N. C. 293 ; Dahlman v. Ham- 
 * Wain V. Warlters, 5 East, 10; mel, 45 Wis. 466 ; Goodnow w. Bond, 59 
 
 Smith Con. 2d Eng. ed. 41. See Ex N. H. 150; Thomas v. Hammond. 47 
 
 parte Gardom, 15 Ves. 286. Texas, 42. 
 
 5 Egerton v. Mathews, 6 East, 307 ; ' Ante, § 1246 ; Wharton v. Stonten- 
 PoUock Con. 141. burgh, 8 Stew. Ch. 266. 
 
 6 Steadman v. Guthrie, 4 Met. Ky. " Ante, § 424. 
 
 147 ; Shively v. Black, 9 Wright, Pa. » Grant v. Fletcher, 5 B. & C. 436. 
 
 605 
 
§ 1249 REQUIRED TO BE IN WRITING. [BOOK III. 
 
 illustrated in bargainings by letter or telegram, where pro- 
 posal and acceptance do not completely fit ; there is then 
 no sufiBcient memorandum.^ Now, — 
 
 § 1249. Substantial Requisites. — The form of the writing 
 is immaterial. It may consist of letters, telegrams, entries in 
 auctioneers' or brokers' books, an orderly-written contract, 
 or otherwise, — on one piece of paper, or on more pieces 
 than one, attached, or the one referring to the other,^ — still 
 it must contain in substance the complete agreement in terms 
 sufficiently plain to be understood.^ But it is not objection- 
 able though requiring, for its entire comprehension, those oral 
 inquiries into surroundings and identifying matter,* and those 
 implications,^ which are admissible in interpreting ordinary 
 contracts.® Simply to state the fact of a bargain, where the 
 terms rest in oral words, is not enough.^ Yet few words will 
 often suffice; as, where a prior oral guarantor for "John" 
 wrote, " Give John a little more time, and I will see that you 
 get your money," he was held.^ And " cash on dehvery " 
 sufficiently indicates the terms of a sale of goods.^ 
 
 1 Ante, §321-329; Lincoln v. Erie mont, 51 Mich. 636 ; Munday ti. Asprey, 
 Preserving Co. 132 Mass. 129; Hussey 13 Ch. D. 855; McLean b. Nicoll, 7 
 V. Home-Payne, 4 Ap. Cas. 311 ; Smith Jur. n. s. 999 ; Oakman v. Rogers, 120 
 V. Surman, 9 B. & C. 561. Mass. 214 ; Eeid v. Kenworthy, 25 
 
 2 Ante, § 382. Kan. 701 ; Drury v. Young, 58 Md. 
 8 Whelan «. Sullivan, 102 Mass. 204 ; 546 ; Newbery v. Wall, 65 N. Y. 484 ; 
 
 McGuire v. Stevens, 42 Missis. 724 ; Smith v. Jones, 66 Ga. 338 ; Cave v. 
 Eiley v. Famsworth, 116 Mass. 223; Hastings, 7 Q. B. D. 125; WiUiams v. 
 Lee V. Mahoney, 9 Iowa, 344; McCon- Bobinson, 73 Maine, 186; Fitzmaurice 
 nell V. Brillhart, 17 111. 354; O'Donnell v. Bayley, 9 H. L. Cas. 78, 6 Jur. N. s. 
 V. Leeman, 43 Maine, 158; Rhoades v. 1215. 
 Castner, 12 Allen, 130 ; Bailey v. Ogden, * Ante, § 370-378. 
 3 Johns. 399 ; Abeel v. Eadcliif, 13 ^ Ante, § 254. 
 Johns. 297; Dodge w. Lean, 13 Johns. 6 White v. Core, 20 W. Va. 272; 
 508 ; Parkhurst v. Van Cortlandt, 1 Tice v. Freeman, 30 Minn. 389 ; Shard- 
 Johns. Ch. 273; Patterson v. Un- low u. Cotterell, 20 Ch. D. 90; Beck- 
 derwood, 29 Ind. 607 ; Boardman v. with v. Talbot, 95 U. S. 289 ; Eggleston 
 Spooner, 13 Allen, 353; Hazard w.Day, v. Wagner, 46 Mich. 610. 
 14 Allen, 487; Wright v. Weeks, 25 ' McElroy v. Buck, 35 Mich. 434; 
 N. Y. 153; Murdock v. Anderson, 4 Gault w. Stormont, 51 Mich. 636; Schroe- 
 Jones, Eq. 77; Ellis v. Deadman, 4 der v. Taaffe, 11 Misso. Ap. 267, 268. 
 Bibb, 466 ; Horsey v. Graham, Law See Ellis v. Bray, 79 Misso. 227 ; 
 Rep. 5 C. P. 9; Sale v. Lambert, Law O'Neil v. Grain, 67 Misso. 250; Perrine 
 Rep. 18 Eq. 1 ; Potter v. Duffield, v. Cooley, 10 Vroora, 449. 
 Law Rep. 18 Eq. 4; Coramins v. Scott, ^ Wills v. Ross, 77 Ind. 1. 
 Law Rep. 20 Eq. 11 ; Gault v. Stor- » Justice v. Lang, 42 N. Y. 493. 
 
 506 
 
CHAP. XLVIII.] STATUTE OP FRAUDS. § 1253 
 
 III. Promises hy Executors and Administrators. 
 
 § 1250. Statutory Provision. — The clause now to be ex- 
 plained is analogous to that treated of under our next sub- 
 title ; it I'elates to guaranty. It declares that, in the absence 
 of the memorandum just described, " no action shall be 
 brought whereby to charge any executor or administrator, 
 upon any special promise, to answer damages out of his own 
 estate." ^ In other words, to render him personally liable for 
 a debt of the deceased, his promise to pay it must be in 
 writing. Now, — 
 
 § 1251. Fresh Consideration. — The statute does not im- 
 part to the written promise any vitality which it would not 
 have had before if oral. Therefore, whether the memoran- 
 dum must set out a consideration or not,^ there must be such 
 in fact. That by which the deceased person became holden 
 will not suffice ; to create this fresh obligation from the liv- 
 ing, there must be a fresh consideration — one valid as to 
 hxva? A familiar illustration of the fresh consideration is — 
 
 § 1252. Forbearance. — If an executor, in consideration that 
 a creditor will forbear for a time to press his claim against 
 the estate, undertakes in writing to be personally responsible 
 for it, the law will hold him, though not individually ben- 
 efited, the other having parted with an advantage.* And 
 the like rule applies to a legacy.^ 
 
 § 1253. Form of Promise. — To bind him personally, the form 
 of the undertaking must show this intent; a mere written 
 promise as executor not being adequate. But he may be thus 
 bound though he adds " executor " or " administrator " to his 
 signature.^ For the court, in interpreting an instrument, 
 looks at the whole of it, and is not often governed by a single 
 
 1 Ante, § 1232. ^ Davis v. Reyner, 2 Lev. 3. 
 
 2 Ante, § 1247. ° Treadwell v. Herndon, 41 Missis. 
 
 » 1 Chit. Con. 11th Am. ed. 372; 38; Winter u. Hite, 3 Iowa, 142 ; Lock- 
 Forth V. Stanton, 1 Saund. Wms. ed. w^ood v. Gilson, 12 Ohio State, 526; 
 210 and notes. Stoudenmeier v. Williamson, 29 Ala. 
 
 * Ante, § 61-63 ; Jones v. Ashburn- 558 ; Sieckman v. Allen, 3 E. D. Smith, 
 ham, 4 East, 455. 561. 
 
 507 
 
§ 1256 BEQUIEED TO BE IN WBITING. [BOOK III. 
 
 word.^ Thus, a promissory note in the following terms was 
 adjudged to charge the makers personally : " As executors to 
 the late, &c. we severally and jointly promise to pay, &c. the 
 sum of, &c. on demand, together with lawful interest." Here 
 were a contemplated forbearance, an undertaking to pay in- 
 terest with which the estate was not chargeable, and a joint 
 and several promise, — all obligations different from what the 
 law casts on executors ; hence a personal liability must have 
 been meant.^ 
 
 § 1254. Original Obligation. — Executors and administrators, 
 in the discharge of their duties, enter into various original 
 obligations, as well as incur responsibilities for torts, which 
 are personal in their inception ; binding them, and not the 
 estate, though sometimes they may charge over to the estate 
 what they thus pay out. With these, the statute has nothing 
 to do.* A familiar illustration is where an executor, in con- 
 sideration of the release of a claim against the estate, promises 
 to pay it in person ; no writing is required to hold him.* But 
 any mere verbal promise to pay a debt of the deceased while 
 his estate remains liable is within the statute, and it will not 
 bind the executor or administrator personally .° 
 
 § 1255. Further — doctrines and illustrations, applicable 
 under this sub-title, will be found in the next. 
 
 IV. The Promise to answer for another's Debt, Default, or 
 Misearriage. 
 
 § 1256. Statutory Terms. — Within the statute is " any 
 special promise to answer for the debt, default, or miscar- 
 
 1 Ante, § 382-384, 404. man, 2 Rob. N. Y. 385 ; McGloin v. 
 
 2 Childs V. Monins, 2 Brod. & B. 460. Vanderlip, 27 Texas, 366 ; Hackleman 
 And see Holderbaugh v. Turpin, 75 v. Miller, 4 Blackf. 322; Stebbins v. 
 Ind. 84. Smith, 4 Pick. 97. 
 
 s Tomlinson v. Gill, Amb. 330 ; * Crawford v. King, 54 Ind. 6, a case 
 
 Beaty v. Gingles, 8 Jones, N. C. 302 ; within the principle, if not the exact 
 
 Williams v. Davis, 18 Wis. 115; Tay- terms, of the proposition. And see 
 
 lor V. Mygatt, 26 Conn. 184; Farrelly post, § 1258, 1261. 
 V. Ladd, 10 Allen, 127; Luscomb v. ^ Smithwick w. Shepherd, 4 Jones, 
 
 Ballard, 5 Gray, 403 ; McKay v. Royal, N. C. 196. 
 7 Jones, N. C. 426; Bowman v. Tall- 
 
 508 
 
CHAP. XLTITI.] STATUTE OF FRAUDS. § 1259 
 
 riages of another person." ^ The provision is, therefore, like 
 that explained in the last sub-title,^ one of guaranty or surety- 
 ship. Hence, — 
 
 § 1257. Three Parties required. — To constitute this sort of 
 contract, there must be three parties ; namelj'', a creditor, his 
 debtor, and a person who guarantees to the former the lat- 
 ter's deljt. Yet it does not follow that the three must act 
 concurrently in creating the guaranty. Hence, — 
 
 § 1258. Principal Discharged. — Because three parties are 
 necessary, it is a mere truism to say that no contract lacking 
 any one of them is within the statute. Therefore the doc- 
 trine is believed to be absolute and without exception, that, 
 to render writing indispensable to the efficacy of a surety's 
 promise, the principal must be and remain holden ; that is, 
 the debt must be due, not from the promisor, but from "an- 
 other." By reason whereof, any bargaining which discharges 
 the principal takes the case out of the statute.^ On the other 
 hand, — 
 
 § 1259. Principal remaining Holden. — In general, any prom- 
 ise to pay another's indebtedness, which is not by the terms 
 of the promise or other concurrent arrangement taken away, 
 must, to avoid the bar of the statute, be in writing.* But, as 
 
 1 Ante, § 1232. 76 ; Wakefield v. Greenhood, 29 Cal. 
 
 2 Ante, § 1250. 597 ; Richardson v. Williams, 49 Maine, 
 
 3 Mallet V. Bateman, Law Eep. 1 558; Parker v. Barker, 2 Met. 423; 
 C. P. 163; Lakeman v. Mountstephen, Smith v. Montgomery, 3 Texas, 199. 
 Law Eep; 7 H. L. 17, 24, 7 Q. B. 196, 5 * Sweatman v. Parker, 49 Missis. 19, 
 Q, B. 613 (at the place first cited, Lord 28, and Bloom u.McGrath, 53 Missis. 249, 
 Selborne observing : " There can be no in which two cases the doctrine was put, 
 suretyship unless there be a principal it is beliered, too strongly, thus, — "The 
 debtor, . . . nor can a man guarantee only test and criterion by which to de- 
 anybody else's debt unless there is a debt termine whether the promise needs to be 
 of some other person to be guaran- in writing is the question whether it is 
 teed") ; Eddy v. Roberts, 17 111. 505 ; or is not a promise to answer for a debt, 
 Wainwright v. Straw, 15 Vt. 215 ; default, or miscarriage of another, for 
 Mease v. Wagner, 1 McCord, 395; which that other continues liable;" 
 Bronson v. Stroud, 2 McMullen, 372; Laidlou v. Hatch, 75 111. 11 ; Hayden v. 
 Hill V. Doughty, 11 Ire. 195 ; Connerat Weldon, 14 Vroom, 128 ; Deeu. Downs, 
 V. Goldsmith, 6 Ga. 14 ; Billingsley v. 57 Iowa, 589 ; Krutz v. Stewart, 54 Ind. 
 Dempewolf, 11 Ind. 414; Aldrich v. 178; Dows v. Swett, 120 Mass. 322; 
 Jewell, 12 Vt. 125 ; Olive v. Lewis, 45 Gower v. Stuart, 40 Mich. 747 ; In re 
 Missis. 203 ; Townsley v. Sumrall, 2 Pet. Tozer's Estate, 46 Mich. 299 ; Richard- 
 170, 181 ; Ployd v. Harrison, 4 Bibb, son v. Bobbins, 124 Mass. 105. 
 
 509 
 
§ 1261 EEQUIEED TO BE IN WEITING. [BOOK IH. 
 
 we shall presently see,^ there are cases in real or apparent 
 exception to this rule ; namely, where one orally contracts a 
 debt of his own, the payment of which has the effect of pay- 
 ing another's ; the statute does not extend to this sort of 
 bargaining. In illustration and further exposition of these 
 leading doctrines, — 
 
 § 1260. Goods bought. — If A has goods which B wishes 
 to buy, and X promises to pay for them, or to pay unless B 
 does, then, in either case, if A delivers and deliberately 
 charges them to B, whom he intends to hold, while he also 
 holds X as surety, or thus deliberately charges them to the 
 two jointly, still X is not liable unless his promise is in writ- 
 ing.2 But if the promise of X is in such form that the charge 
 may be made directly to him, and it is so made, and no claim 
 is retained against B, then X may be compelled to pay though 
 there is no writing.^ Again, — 
 
 § 1261. Existing Debt. — If a debtor, creditor, and third 
 person agree together, that the debtor shall be discharged 
 and the creditor look to the third person for his pay, this 
 arrangement is valid though not in writing ; because the debt, 
 in being cast upon the third person, is taken off from the 
 " other." And the release of such other furnishes a consid- 
 eration for the new promise.* But if the old debt is not 
 lifted, the new promise must be in writing, and a fresh 
 consideration® must be added.^ 
 
 1 Post, § 1263. 48 N. Y. 247 ; Barringer v. Warden, 12 
 
 2 Matthews v. Milton, 4 Yersr. 576; Cal. 311; Corbett v. Cochran, 3 Hill, 
 Matson v. Wharam, 2 T. E. 80 ; An- S. C. 41 ; Day f. Cloe, 4 Bush, 563 ; 
 derson v. Hayman, 1 H. Bl. 120; Jones Wood v. Corcoran, 1 Allen, 405; War- 
 V. Cooper, Cowp. 227 ; Hill v. Ray- ren ». Smith, 24 Texas, 484 ; Gleason ». 
 mond, 3 Allen, 540 ; Swift v. Pierce, 13 Briggs, 28 Vt. 135 ; Watson v. Jacobs, 
 Allen, 136; Searight v. Payne, 2 Tenn. 29 Vt. 169; Mead v. Keyes, 4 E. D. 
 Ch. 175; Pettit K. Braden, 55 Ind. 201. Smith, 510; Bill v. Barker, 16 Gray, 
 
 8 Wallace v. Wortham, 25 Missis. 62 ; Thornton v. Guice, 73 Ala. 321 ; 
 
 119; Graham i>. O'Niel, 2 Hall, 474; Borchsenius y. Canutson, 100 HI. 82. 
 Cahm V. Bigelow, 18 Pick. 369; Lang- ^ Ante, § 1251. 
 don w. Richardson, 58 Iowa, 610; Hart- ^ Beall v. Ridgeway, 18 Ala. 117; 
 
 ley V. Varner, 88 111. 561 ; McLendon v. Comstock v. Breed, 12 Cal. 286 ; Cutler 
 
 Prost, 57 Ga. 448 ; Morrison v. Baker, v. Everett, 33 Maine, 201 ; Aldridge ». 
 
 81 N. C. 76 ; Booth v. Heist, 13 Norris, Turner, 1 Gill & J. 427 ; Chaffee v. 
 
 Pa. 177. Thomas, 7 Cow. 358; Parker v. Carter, 
 
 * Meriden Britannia Co. v. Zingsen, 4 Munf. 273 ; Stone v. Symmes, 18 
 
 510 
 
CHAP. XL VIII.] STATUTE OP FRAUDS. § 1264 
 
 § 1262. other Illustrations — of the distinction are numer- 
 ous. For example, after a physician has rendered services to 
 a sick family, if a third person to whom he declines to do 
 more without security for his pay verbally promises to be 
 responsible, he may continue his visits, charging them directly 
 to the latter ; and he can collect of him pay for them, but not 
 for the prior services.^ 
 
 § 1263. Own Debt. — As already said,^ the statute does 
 not invalidate one's oral promise to pay his own debt, though 
 in a form which will work the discharge of " another's." This 
 doctrine is established beyond question ; yet, in cases upon 
 the border line distinguishing this class from the other, its 
 application is sometimes difficult; and, it may be, the de- 
 cisions are not absolutely harmonious.^ The mere fact that 
 an advantage will accrue to the promisor from his suretyship 
 does not take the bargaining out of the statute ; but the true 
 test appears to be, — Was the transaction in essence his own, 
 while the securing of the third person's debt to the promisee 
 was a mere collateral consequence, or was the latter its direct 
 object?* Some of the adjudged Cases are a little confused in 
 overlooking the distinction between the doctrine of this sec- 
 tion and that of the next ; namely, — 
 
 § 1264. Promise must be to Creditor, not to Debtor. — In the 
 foregoing illustrations, the promise was to the creditor. And 
 no case in which it is not to him, or to some person repre- 
 senting him, is within the statute. If, therefore, one, on an 
 adequate consideration, arranges with a debtor to pay what 
 the latter owes generally, or what he owes a particular per- 
 
 Pick. 467; Brown v. Hazen, 11 Mich, man, 83 Ind. 124; Eagle Mowing, &c 
 
 219; Noyes i?. Humphreys, 1 1 Grat. 636; Co. v. Shattuck, 53 Wis. 455; Fitzger- 
 
 Luce V. Zeile, 53 Cal. 54; Frame v. Au- aid v. Morrissey, 14 Neb. 198 ; White v. 
 
 pust, 88 III. 424; The State v. Shinn, 13 Webster, 58 Ind. 233. • 
 Vroom, 138. * Clapp v. Webb, 52 Wis. 638, 641 ; 
 
 1 King V. Edmiston, 88 111. 257 ; Weisel v. Spence, 59 Wis. 301 ; Shaffer 
 Kessler v. Sonneborn, 10 Daly, 383. v. Ryan, 84 Ind. 140 ; Milks v. Kich, 80 
 
 2 Ante, § 1259. N. Y. 269 ; Sheldon v. Butler, 24 Minn. 
 * Taylor v. Preston, 29 Smith, Pa. 513 ; Mitchell v. GrifSn, 58 Ind. 559 ; 
 
 436, 441 ; Dows v. Swett, 134 Mass. Mobile, &c. Railroad v. Jones, 57 Ga. 
 
 140; Darst w. Bates, 51 111. 439 ; Wilson 198; Conger v. Cotton, 37 Ark. 286; 
 
 V. Hentges, 29 Minn. 102; Clopper v. Fears v. Story, 131 Mass. 47. 
 Poland, 12 Neb. 69; Hassinger v. New- 
 
 511 
 
§1265 
 
 BEQUIEED TO BE IN WRITING. 
 
 [book III. 
 
 son, this is valid though not in writing. The debt is not 
 "another's," but the very person's to whom the promise is 
 made.^ For example, a buyer who is to pay by discharging 
 an indebtedness of the seller to a third person is altogether 
 outside of the statute.^ Another familiar example within the 
 same doctrine is the — 
 
 § 1265. Promise of Indemnity. — One's promise to another 
 to see him harmless should he become surety for a third per- 
 son, or should he do anything else, is a mere arrangement 
 between promisor and promisee. It is to pay what the one 
 to whom it is made may become liable for, — not " another's" 
 debt, but his. Therefore it is not within the statute, and is 
 valid though oral.* Still some of the courts, instead of look- 
 ing at the question so, regard the promise as an undertaking, 
 in effect, to pay the third person's debt, or otherwise to answer 
 
 1 Eastwood V. Kenyon, 11 A. & E. 
 438 ; Hawes v. Woolcock, 26 Wis. 629 j 
 Britton D. Angier, 48 N. H. 420 ; Brown 
 V. Brown, 47 Misso. 130 ; Barker v. 
 Bradley, 42 N. Y. 316 ; Brown v. Strait, 
 19 m. 88 ; Presbyterian Society v. Sta- 
 ples, 23 Conn. 544; Colt v. Root, 17 
 Mass. 229; Tibbetts v. Flanders, 18 
 N. H. 284 ; Harwood v. Jones, 10 GiU 
 & J. 404 ; Alger v. Scoville, 1 Gray, 391 ; 
 Maxwell v. Haynes, 41 Maine, 559 ; 
 Decker v. Shaffer, 3 Ind. 187; Howard 
 V. Coshow, 33 Misso. 118; Kutzmeyer 
 V. Ennis, 3 Dutcher, 371 ; Jennings v. 
 Webster, 7 Cow. 256 ; Barker v. Buck- 
 lin, 2 Denio, 45 ; Meyer v. Hartraan, 72 
 111. 442; Center w. McQuesten, 18 Kan. 
 476 ; Williams v. Rogers, 14 Bush, 
 776. 
 
 ^ Lee V. Newman, 55 Missis. 365 ; 
 Morrison v. Hogue, 49 Iowa, 574 ; 
 Crim V. Fitch, 53 Ind. 214; Vaughn v. 
 Smith, 58 Iowa, 553 ; Wynn v. Wood, 
 1 Out. Pa. 216; Justice v. Tallman, 5 
 Norris, Pa. 147. 
 
 ' Aldrich v. Ames, 9 Gray, 76 ; 
 Wildes V. Dudlow, Law Rep. 19 Eq. 
 198; Dunn v. West, 5 B. Monr. 376; 
 Mills V. Brown, U Iowa, 314; Jones 
 V. Shorter, 1 Kelly, 294 ; Lucas v. 
 Chamberlain, 8 B. Monr. 276 ; Perley 
 
 512 
 
 «. Spring, 12 Mass. 297; Chapin v. 
 Lapham, 20 Pick. 467 ; Holmes v. 
 Knights, 10 N. H. 175; Harrison 
 V. Sawtel, 10 4^ohns. 242 ; Chapin v. 
 MeiTill, 4 Wend. 657; Sanborn v. 
 Merrill, 41 Maine, 467 ; Blount v. Haw- 
 kins, 19 Ala. 100; Wyman v. Smith, 2 
 Sandf. 331 ; Seaman v. Whitney, 24 
 Wend. 260; Perkins v. Littlefield, 5 
 Allen, 370 ; Flemm v. Whitmore, 23 
 Misso. 430 ; Prather v. Vineyard, 4 Gil- 
 man, 40; Stark v. Raney, 18 Cal. 622; 
 Marcy v. Crawford, 16 Conn. 549; 
 Bohannon v. Jones, 30 Ga. 488 ; Tindal 
 V. Touchberry, 3 Strob. 177 ; Myers v. 
 Morse, 15 Johns. 425 ; Conkey v. Hop- 
 kins, 17 Johns. 113 ; Beaman v. Russell, 
 20 Vt. 205 ; Walker v. Norton, 29 Vt. 
 226; Soule v. Albee, 31 Vt. 142; Dor- 
 win V. Smith, 35 Vt. 69 ; Goodspeed v. 
 Fuller, 46 Maine, 141. More or less 
 distinctly opposed to the text, and to 
 the foregoing and many other like de- 
 cisions, are Kelsey v. Hibbs, 13 Ohio 
 State, 340 ; Brush v. Carpenter, 6 Ind. 
 78; Draughan v. Bunting, 9 Ire. 10; 
 Simpson v. Nance, 1 Speer, 4; Bissig 
 V. Britton, 59 Misso. 204; Demeritt ». 
 Bickford, 58 N. H. 523; Anderson v. 
 Spence, 72 Ind. 315. 
 
CHAP. XLVIII.] STATUTE OF FRAUDS. § 1266 
 
 for him ; holding it, therefore, to be within the statute.^ On 
 principle, this question is determinable by a very simple test. 
 You promise James that, if he puts his name as surety for 
 John on a bond running to Richard, you will hold him harm- 
 less ; he does it ; John makes default. All agree that, in this 
 case, John is the " another " of the statute. But Richard, to 
 whom the debt is due, cannot sue you ; John failing, his 
 claim over is alone on James. Aside from difficulties as to 
 the form of the action, your liability begins only when James 
 has paid him. There remains now for adjustment only what 
 you had promised to James, who is not " another," but the 
 promisee himself, — the debt is yours to him, and there is 
 nothing going out from you to any third person. Hence the 
 case is not within the statute.^ 
 
 § 1266. Consideration. — As explained in the last sub-title,' 
 the writing does not render a consideration the less neces- 
 sary.* Therefore a mere naked promise to pay an existing 
 debt of a third person cannot be enforced, though in writing.^ 
 If the contract of the surety is simultaneous with that of the 
 principal, the consideration which supports the one will sus- 
 tain also the other ; but, if subsequent, there must be some 
 fresh consideration.® Forbearance to sue, for example, is 
 sufficient.^ So is the release of a remedy.* 
 
 1 Green ». Cresswell, 10 A. & E. 453 ; Smith, 4 Fla. 47 ; Ware v. Adams, 24 
 Easter v. White, 12 Ohio State, 219; Maine, 177; Gillighan v. Boardman, 29 
 Ferrell v. Maxwell, 28 Ohio State, 383; Maine, 79; Cook v. Elliott, 34 Misso. 
 May V. Williams, 61 Missis. 125 ; 586 ; Brewster v. Silence, 4 Selden, 
 Bissig V. Britton, 59 Misso. 204. The 207 ; Snevily v. Johnston, 1 Watts & S. 
 other cases are pretty folly cited in 307. 
 
 these. ' Ante, § 1252; Smith v. Finch, 2 
 
 2 Ante, § 1264. Scam. 321; Martin v. Black, 20 Ala. 
 « Ante, § 1251, 1252. 309; Sage v. Wilcox, 6 Conn. 81; 
 
 * Thomas v. Delphy, 33 Md. 373; Kean w. McKinsey, 2 Barr, 30 ; Thomas 
 Barren v. Tmssell, 4 Taunt. 117 ; See- v. Croft, 2 Rich. 113 ; McCelry r. Noble, 
 arce v. Gall, 82 Ind. 255 ; Frame v. Au- 13 Kich. 330; King v. Upton, 4 Grecnl. 
 gust, 88 ni. 424. 387 ; Elting v. Vanderlyn, 4 Johns. 237 ; 
 
 ' Starr v. Earle, 43 Ind. 478; Beall Vinal v. Richardson, 13 Allen, 521. 
 V. Ridgeway, 18 Ala. 117; Osborne v. ^ Ante, § 1254, 1261 ; Kershaw v. 
 
 Farmers Loan, &c. Co. 16 Wis. 35. Whitaker, 1 Brev. 9 ; Killian v. Ashley, 
 
 • Bebee o. Moore, 3 McLean, 387 ; 24 Ark. 511 ; Taylor v. Meek, 4 Blackf. 
 How V. Kemball, 2 McLean, 103 ; Col- 388 ; Corbett v. Cochran, 3 Hill, S. C. 
 burn V. ToUes, 14 Conn. 341 ; Lines v. 41. 
 
 33 513 
 
§ 1271 EEQUIRED TO BE IN WBITING. [BOOK III. 
 
 V. The Agreement on Consideration of Marriage, 
 
 § 1267. At Common Law — Under Statute. — Marriage is, at 
 the common law, an adequate consideration for a promise.^ 
 And the Statute of Frauds merely provides, that " any agree- 
 ment made upon" this consideration shall, to be valid, be in 
 writing.2 
 
 § 1268. Defined. — A " consideration of marriage " is an 
 actual marriage, in exchange for which the promise is made ; * 
 as, — 
 
 § 1269. Marriage Settlement, &o. — If a man settles property 
 on a woman, upon the mutual understanding that thereupon 
 she will marry him, which she does, this " consideration of 
 marriage " renders the settlement valid even as against his 
 creditors.* And it is the same with his executory promise to 
 settle property in the future, or any other promise which 
 he makes to her or for her benefit, of a sort not to be extin- 
 guished by the marriage.^ But, by the Statute of Frauds, such 
 promise must be in writing. Or, — 
 
 § 1270. By Third Person. — ■ A third person's written and 
 signed promise, made either to the woman or to the man, that, 
 if they intermarry, he will thereon do a particular thing, binds 
 him on fulfilment by them, being founded on the " considera- 
 tion of marriage." ^ But, — 
 
 § 1271. Promise to Marry. — A mere promise to marry is not 
 of this sort. It is generally mutual, so that the undertaking 
 of the one is the consideration for that of the other; but, 
 whether in a particular case this is so or not, it is not a 
 
 1 Ante, § 67. 5 Rivers v. Thayer, 7 Rich. Eq. 136; 
 
 2 Ante, §1232. Marshall v. Morris, 16 Ga. 368; Naill 
 ' Ante, § 38. v. Maurer, supra; Miller v. Goodwin, 8 
 * 1 Bishop Mar. Women, § 777-784 ; Gray, 542 ; SuUings v. Richmond, 5 
 
 Mountacne v. Maxwell, 1 Stra. 236; Allen, 187; Tarbell v. Tarbell, 10 AI- 
 
 Potts V. Merrit, 14 B. Monr. 406 ; Finch len, 278 ; Kimborough v. Davis, 1 Dcv. 
 
 V. Finch, 10 Ohio State, 501 ; Andrews Bq. 71 ; Boatright v. Wingate, 3 Brev. 
 
 V. Jones, 10 Ala. 400; Naill v. Maurer, 423. 
 
 25 Md. 532 ; Pratt v. Wright, 5 Misso. » 1 Bishop Mar. Women, § 785-787; 
 
 192 ; Woodward v. Woodward, 5 Sneed, Ogden i'. Ogden, 1 Bland, 284. 
 Tenn. 49. 
 
 514 
 
CHAP. ZLVIII.] STATUTE OP FRAUDS. § 1274 
 
 promise on " consideration of marriage," ^ and it need not be 
 in writing.2 
 
 VI. Agreements not to he performed within a Year. 
 
 § 1272. statutory Provision. — By another clause of the 
 statute, any agreement must be in writing which " is not to 
 be performed within the space of one year from the making 
 thereof." » 
 
 § 1273. How Interpreted. — Plainly the expression " is not 
 to be performed " points to such affirmative terms in the con- 
 tract as exclude performance within the year.* Hence, — 
 
 § 1274. Doctrine defined. — The doctrine of this sub-title 
 is, that writing is essential when, under the terms of the 
 agreement, the complete execution of it within a year from 
 the time of the making is impossible ; when, possibly, how- 
 ever improbably, all may transpire within the year, oral words 
 will suffice : as, if performance depends on the death of a per- 
 son, or the coming in of a^ip, or any other contingent event 
 which may or may not transpire within the year, no writing 
 is required ; otherwise, if there is a fixed date, set forward 
 more than a year.^ Thus, — 
 
 1 Ante, § 76-79; Standiford v. Gen- 476; Peters v. Westborough, 19 Pick, 
 try, 32 Misso. 477 ; Espy v. Jones, 37 364 ; Soggins v. Heard, 31 Missis. 426 ; 
 Ala. 379; AUard v. Smith, 2 Met. Ky. Foster v. McO'Blenis, 18 Misso. 88; 
 297. Snggett v. Cason, 26 Misso. 221 ; Blan- 
 
 2 Cork V. Baker, 1 Stra. 34 ; Harri- ding v. Sargent, 33 N. H. 239 ; Esty v. 
 son V. Cage. 1 Ld. Raym.386; Clark Aldrich, 46 N. H. 127; Moore u. Fox, 
 V. Pendleton, 20 Conn. 495 ; Ogden 10 Johns. 244 ; Lockwood v. Barnes, 3 
 V. Ogden, 1 Bland, 284; Blackburn v. Hill, N. Y. 128; Broadwell v. Getman, 
 Mann, 85 III. 222. 2 Denio, 87 ; Gadsden v. Lance, 1 Mc- 
 
 ' Ante, § 1232. Mul. Eq. 87 ; Izard v. Middleton, 1 Des. 
 
 *"The Statute of Frauds plainly 116; Thompson ». Gordon, 3 Strob. 196; 
 
 means an agreement not to be performed Thouvenin t>. Lea, 26 Texas, 612; Sher- 
 
 within the space of a year, and expressly man v. Champlain Transp. Co. 31 Vt. 
 
 and specifically so agreed." Denison, 162; Blanchard v. Weeks, 34 Vt. 589; 
 
 J. in Fenton B. Emblers, 3 Bur. 1278. Rogers v. Brightraan, 10 Wis. 55; 
 
 1281. White V. Hanchett, 21 Wis. 415 ; Packet 
 
 6 Soucho. Strawbridge, 2C. B. 808; Co. v. Sickles, 5 Wal. 580; Harris v. 
 
 Knowlman v. Bluett, Law Eep. 9 Ex. 1 ; Porter, 2 Harring. Del. 27 ; Comstock v. 
 
 Russell V. Slade, 12 Conn. 455 ; Burney Ward, 22 III. 248 ; Herrin v. Butters, 20 
 
 «. Ball, 24 Ga. 505 ; Wiggins w. Keizer, Maine, 119; Summerall v. Thoms, 3 
 
 6 Ind. 252; ElUcott ». Turner, 4 Md. Fla. 298; Shipley v. Patton, 21 Ind. 
 
 615 
 
§ 1279 EEQUIEED TO BE IN WRITING. [BOOK III. 
 
 § 1275. Agreement to marry. — An agreement in general 
 words to marry, or to marry within three years, need not be 
 in writing, because it can be fulfilled within a year ; ^ but a 
 promise to marry after the lapse of a year is voidable if oral.^ 
 Again, — 
 
 § 1276. Ante-nuptial Contracts. — Most ante-nuptial con- 
 tracts are founded on the consideration of marriage, the clause 
 as to which is explained in our last sub-title ; by reason where- 
 of they must be in writing. But such a contract not on this 
 consideration, so outside of that clause, if it directs how prop- 
 erty shall be disposed of to heirs, is not by the present clause 
 forbidden to be oral ; since the parties may marry and die 
 within a year.^ And — 
 
 § 1277. Support during Life. — An undertaking to support 
 one during his life need not be in writing, for he may die 
 before the year is ended.* So — 
 
 § 1278. other Things during Life. — A promise to work for 
 one while he lives,^ or any agreement to be performed at the 
 death of one,^ may be oral ; because the death may transpire 
 within a year. In like manner, — 
 
 § 1279. By 'Will. — A promise to pay by bequest,'^ for ser- 
 vices or anything else,^ is good though oral ; because the 
 promisor may not live a year.® Once more, — 
 
 169; Holbrook v. Armstrong, 1 Fairf. Gray, 168; Doyle v. Dixon, 97 Mass. 
 
 31 ; First Baptist Church v. Brooklyn 208. 
 
 Fire Ins. Co. 19 N. Y. 305 ; Sutphen v. « Bull v. McCrea, 8 B. Monr. 422 ; 
 
 Sutphen, 30 Kan. 510; Jordan w. Mil- Howard ii. Burgen, 4 Dana, 137 ; Hutch- 
 
 ler, 75 Va. 442 ; McPherson v. Cox, 96 inson v. Hutchinson, 46 Maine, 154; 
 
 U. S. 404 ; Walker v. Johnson, 96 U. S. Dresser v. Dresser, 35 Barb. 573 ; Mc- 
 
 424 ; Duff V. Snider, 54 Missis. 245 ; Cormick v. Drnmmett, 9 Neb. 384. 
 
 Blakeney ». Goode, 30 Ohio State, 350 ; But see the argument of counsel and 
 
 Thomas v. Hammond, 47 Texas, 42 ; authorities cited in Knowlman v. Bluett, 
 
 Groves v. Cook, 88 Ind. 169 ; Chaffe v. Law Eep. 9 Ex. 1, 3. For a somewhat 
 
 Benoit, 60 Missis. 34. curious case, see Deaton v. Tennessee 
 
 1 Paris V. Strong, 51 Ind. 339 ; With- Coal, &c. Railroad, 12 Heisk. 650. 
 
 ers V. Richardson, 5 T. B. Monr. 94. ' Updike v. Ten Broeck, 3 Vroom, 
 
 2 Nichols V. Weaver, 7 Kan. 373; 105. 
 
 Derby v. Phelps, 2 N. H. 515. « Frost v. Tarr, 53 Ind. 390. 
 
 8 Houghton V. Houghton, 14 Ind. ' Ante, § 224. 
 
 505. Within the same principle, see ' Fenton v. Emblers, 3 Bur. 1278, 
 
 Hill V. Jamieson, 16 Ind. 125 ; Richard- I W. Bl. 353 ; Ridley v. Ridley, 34 
 
 son V. Pierce, 7 R. I. 330; Lyon v. Beav. 478. 
 
 King, 1 1 Met 411; Worthy v. Jones, 1 1 » Jilson v. Gilbert, 26 Wis. 637. 
 
 516 
 
CHAP. XLTIII.] STATUTE OP FRAUDS. § 1283 
 
 § 1280. Other Labor Bargainings. — Where the words of a 
 bargain were, " If I buy this mill from Mr. P., I will employ 
 you to take charge of it for a year," &c., — a case in which the 
 purchase, consequently the commencement of the services, 
 might, however improbably, occur instantly, — writing was 
 held not to be necessary.^ And it was the same of an agree- 
 ment to construct a road within a year and twenty days ; for 
 there was no impossibility of finishing it within a year.^ But 
 a contract for a year's services, to be entered upon in the 
 future, even the next day, must be in writing ; ^ and so must 
 be any contract by the terms of which the services will neces- 
 sarily extend, for however brief a time — even, said Lord El- 
 lenborough, " one minute " * — beyond a year from its making.^ 
 And one's agreement to work for another more than a year, 
 yet to be paid at intervals of less, cannot, if not in writing, 
 be enforced as to any part of the services, or for the recovery 
 of damages for the non-performance.* But — 
 
 § 1281. 'While in Employ. — An undertaking to work for 
 one while a particular agent is in his employ is not within 
 the statute ; for, before the year closes, the agent may cease 
 to serve. '^ 
 
 § 1282. " Reasonable Time " — Lawsuit — Neither a " rea- 
 sonable time " ^ nor a lawsuit ® necessarily extends beyond a 
 year, therefore a contract bounded by either need not be in 
 writing. 
 
 § 1283. Executed on One Side. — In connection with this 
 
 1 Cole V. Singerly, 60 Md. 348. Burrell, 13 Wend. 307 ; Treadway 
 
 2 Jones V. Ponch, 41 Ohio State, v. Smith, ^6 Ala. 345 ; Levison v. Stix, 
 146. 10 Daly, 229; Bernier ». Cabot Manuf. 
 
 ' Blanck v. Littell, 9 Daly, 268; Co. 71 Maine, 506. 
 Sutcliffe V. Atlantic Mills, 13 R. I. 480; e Emery v. Smith, 46 N. H. 151 ; 
 
 Bracegirdle v. Heald, 1 B. & Aid. 722. Tattle v. Swett, 31 Maine, 555 ; Hill v. 
 
 * Bracegirdle v. Heald, supra, at Hooper, 1 Gray, 131 ; Giraud v. Rich- 
 
 p. 726. mond, 2 C. B. 835. On the same prin- 
 
 ' Kelly V. Terrell, 26 Ga. 551 ; ciple, see Holloway v. Hampton, 4 B. 
 
 Scoggin 1!. Blackwell, 36 Ala. 351; Monr. 415. 
 
 Nones k. Homer, 2 Hilton, 116; Am- 'Roberts v. Rockbottom Co. 7 
 
 burger v. Marvin, 4 E. D. Smith, 393 ; Met. 46. 
 
 Little V. Wilson, 4 E. D. Smith, 422 ; ' Niagara Fire Ins. Co. v. Greene, 
 
 Squire v. Whipple, 1 Vt. 69 ; Hinckley 77 Ind. 590. 
 
 V. Southgate, 11 Vt. 428; Pitcher v. » Heflin v. Milton, 69 Ala. 354; 
 
 Wilson, 5 Misso. 46; Drummond v. Derrick «. Brown, 66 Ala. 162. 
 
 517 
 
§ 1284 EEQXnBED TO BE IN WRITING. [BOOK IH. 
 
 Bection, the reader should refer back to the second sub-title. 
 Where services have been rendered, or goods or lands deliv- 
 ered, under an oral contract, which, by this clause, ought to 
 have been in writing, the party benefited must pay for them.i 
 All, it is believed, admit this proposition ; but there may be 
 differences of opinion as to the reasons for it, and the form 
 of the action. Some courts assert that the statute does not 
 extend to contracts which have been performed on one side.^ 
 Yet the statutory terms ^ and the analogous adjudications * 
 appear to forbid this interpretation ; nor do the ends of jus- 
 tice require it. The true view is believed to be, that, to 
 employ the very words of the statute, " no action shall be 
 brought whereby to charge any " defendant " upon any agree- 
 ment that is not to be performed within " the year, unless it 
 is in writing, whether the plaintiff has done his part or not 
 (for, in any case, if he is in default how can he sue ?) ; ^ yet, 
 since the oral promise is voidable,^ if the party does avoid it, 
 the law may and does create a promise from the voluntary 
 recipient of benefits to pay for them.^ 
 
 § 1284. Oral, performed after Year. — If an oral contract is 
 good on the ground that performance is possible within the 
 year, yet when the year ends it is not done, it remains good 
 the same as though this statute did not exist.* For example, 
 where one for a valuable consideration agreed verbally to 
 leave a certain sum to another by will, but did not die 
 until fourteen years later, his estate was held to be bound 
 thereby.® 
 
 1 Montague v. Gamett, 3 Bush, 297; * Ante, § 1235. 
 
 Harwood v. Jones, 10 Gill & J. 404; ' Marcy w. Marcj, supra ; Sheehyi;. 
 
 Hill V. Smith, 12 Rich. 698 ; Tatterson Adarene, 41 Vt. 541. 
 
 V. Suffolk Manuf. Co. 106 Mass. 56 ; ^ Stout v. Ennis, 28 Kan. 706. 
 
 Donellan v. Read, 3 B. & Ad. 899; 'Ante,' § 188, 217; Towsley v. 
 
 Berry w. Doremns, I Vroom, 399 ; Jil- Moore, 30 Ohio State, 184; King v. 
 
 son V. Gilbert, 26 Wis. 637. Welcome, 5 Gray, 41 ; Compton v. Mar- 
 
 2 Smalley v. Greene, 52 Iowa, 241 ; tin, 5 Rich. 14 ; Swanzey v. Moore, 22 
 Cherry v. Heming, 4 Exch. 631 ; Smith HI. 63. 
 
 V. Neale, 2 C. B. n. s. 67, 3 Jur. n. s. ' Larimer v. Kelley, 10 Kan. 298. 
 
 516 ; McClellan v. Sanford, 26 Wis. 595. ° Ridley v. Ridley, 34 Beav. 478, 11 
 
 Contra, Marcy v. Marcy, 9 Allen, 8. J""". N. 8. 475 ; Jilson v. Gilbert, 26 Wis. 
 
 « Ante, § 1232. 637. 
 518 
 
CHAP. XLVIII.] STATUTE OP FRAUDS. § 1285 
 
 § 1285. The Doctrine of this Chapter restated. 
 
 The Statute of Frauds, in the section explained in this 
 chapter, has no relation to contracts which are executed on 
 both sides. Its words are, " No action shall be brought," 
 &c. ; 1 leaving, to follow an oral bargaining, every consequence 
 which does not require a suit.^ When, therefore, the thing 
 agreed is done, so that there is no occasion for an "action," the 
 case is not within the statute. Or if one, pursuant to an oral 
 promise which by the statute should be in writing, does the 
 thing promised, such doing will, as a consideration, support 
 another oral or written undertaking. But no action will lie 
 on an oral promise within the statute, whatever the nature of 
 the consideration, and though it has been paid or performed. 
 Once more, the statute does not abrogate anything in the 
 common law of contracts ; it merely provides, that, in some 
 cases, for the purposes of a suit, common-law requisites shall 
 be reduced to writing. Consequently, though a contract is 
 in writing, and complies with all the statutory demands, it 
 will be invalid if it would have been so before the statute 
 came. Finally, the statute extends only to the agreements 
 which the parties make, not to those which the law creates.^ 
 
 Such is the general doctrine, running through the entire 
 section. Descending to the specific clauses, it is believed 
 that no appended statement can make plainer what is laid 
 down in the foregoing expositions. One clause of this fourth 
 section remains for elucidation in our next chapter. 
 
 1 Ante, § 1232. « Stout v. Ennis, 28 Kan. 706. » Ante, § 193. 
 
 519 
 
§ 1289 REQUIRED TO BE IN WRITING. [BOOK III. 
 
 CHAPTER XLIX. 
 
 BARGAININGS RELATING TO REAL ESTATE. 
 
 § 1286. ■Words of Statute. — This chapter is upon the same 
 section of the Statute of Frauds which, as to its general 
 interpretation, and its several clauses except one, was ex- 
 pounded in the last. The one clause, which remains for this 
 place, provides that " no action shall be brought whereby to 
 charge . . . any person . . . upon any contract or sale of 
 lands, tenements, or hereditaments, or any interest in or con- 
 cerning them," ^ unless reduced to the writing in the last 
 chapter explained.'^ 
 
 § 1287. Concerning Subject. — The subject of vendors and 
 purchasers, to which this section of the statute pertains, occu- 
 pies a large space in the law. And it has many questions 
 upon which the authorities are discordant. It cannot be fully 
 discussed within the space allotted to this chapter ; still, — 
 
 § 1288. What for Chapter. — We shall here take such a 
 view of the subject as will enable the reader to discern the 
 true doctrine on various disputed questions ; and, after leav- 
 ing these pages, to enter upon its wider study in the cases 
 and special text-books with an enlightenment which, it is 
 hoped, will render easier and plainer his path to the end. 
 
 § 1289. Deed distinguished — (Seal). — The deed, which 
 transmits the legal title to land,^ is, aside from any questions 
 connected with this statute, required to be in writing, and 
 made solemn by the seal of the grantor.* It is not for expo- 
 
 1 Ante, § 1232 ; Hairston ». Jaudon, » Ante, § 124, 277, 309, 355, 361, 363, 
 42 Missis. 380 ; Lumpkin v. Johnson, 27 394-396, 399, 408. 
 
 Ga. 485. * Post, § 1327. 
 
 2 Ante, § 1242-1249. 
 
 520 
 
CHAP. XLIX.] BARGAININGS AS TO REALTY. § 1291 
 
 sition in this chapter, which concerns only the executory 
 agreement to convey, and other like bargainings as to land. 
 This executory contract need not be under seal.^ 
 
 § 1290. 'What Contracts — (Meaning of Statute). — From 
 the statutory expression, " any contract or sale," ^ we may 
 reject the word " sale ; " because a sale is a contract, and the 
 larger includes the less. The word " of," in this clause, sig- 
 nifies relating to. Therefore the " contract " which must be 
 in writing is "any" one relating to "lands, tenements, or 
 hereditaments, or any interest in or concerning them." The 
 expression " lands, tenements, or hereditaments " includes 
 everything inheritable, — all real estate, in the largest signifi- 
 cation of the term.^ And the phrase " any interest in or 
 concerning them " is still broader.* Briefly, then, " any con- 
 tract" relating to "any interest in or concerning" real prop- 
 erty must, to be enforceable by " action," be in writing. 
 Now, — 
 
 § 1291. "Interest in or concerning" Realty — Further as to. 
 — Plain as is ordinarily the distinction between .real and per- 
 sonal property, the question is often a nice one whether or 
 not, within this statute, a particular thing is an " interest in 
 or concerning " what is obviously real estate. Again, under 
 the doctrine that this statute does not extend to executed 
 contracts,^ and the further doctrine that its relation is only 
 partial to those which are executed on one side,® and the yet 
 nicer rules of estoppel in pais in their application to contracts 
 within this section,^ we have complications sometimes over- 
 looked in the cases, and often of necessity requiring the courts 
 to draw nice distinctions. The consequence is, that the adju- 
 dications on this class of questions appear to be much in con- 
 flict; and, in reality, they are not a little so. Let us, at every 
 step of our further progress, keep these distinctions in mind. 
 
 1 Wheeler ». Newton, Prec. Ch. 16; things may he orally done which in 
 Martin v. Weyman, 26 Texas, 460 ; England and most of the other States 
 Worrall v. Munn, 1 Selden, 229. require writing. Anderson v. Powers, 
 
 2 Ante, § 1286. 59 Texas, 213. 
 
 ' 2 Bl. Com. 16, 17. 6 Ante, § 1234. 
 
 * These words are not in the Texas ' Ante, § 1235. 
 statute, under which, therefore, many ' Ante, § 1236, 1237. 
 
 521 
 
§ 1293 
 
 BEQUIEED TO BE IN WRITING. 
 
 [book III. 
 
 In a general way, — 
 
 § 1292. Doctrine defined. — The " interest in or concern- 
 ing " the realty, contemplated by this statute, may be defined 
 as not only including what is obviously real estate, but also 
 as extending to every sort of legal or equitable ownership, 
 however slight, in whatever is deemed real property, whether 
 at law or in equity ; requiring every contract relating thereto, 
 of whatever nature, to be in writing; while, on the other 
 hand, a license or agreement to do anything on, with, or 
 about the realty need not be so, where no interest other than 
 personal is to pass to the party .^ No possible defining, in 
 general terms, could clear the question of every difficulty. 
 Nor does this. Thus, — 
 
 § 1293. Realty becoming Personalty. — If one sells some- 
 thing which to him is real estate, to another in whose hands 
 it will be personalty, is the bargain within the statute ? The 
 
 1 No legal definition can be the sub- 
 ject of direct adjudication. Ante, § 184, 
 note, 217, note, 369. This definition, 
 therefore, was never directly adjudged. 
 Like other legal doctrine, it depends 
 npon a just consideration of the com- 
 bined decisions, statutes, and reasons. 
 Consult, among such other cases as the 
 reader may have access to, the follow- 
 ing : Angell v. Duke, Law Rep. 10 Q. B. 
 174; Sanderson v. Graves, Law Rep. 10 
 Ex. 234; Davis v. Walker, 4 Hayw. 
 295 ; Pitman v. Poor, 38 Maine, 237 ; 
 Love V. Cobb, 63 N. C. 324 ; Riddle v. 
 Brown, 20 Ala. 412 ; Copper Hill Min- 
 ing Co. V. Spencer, 25 Cal. 18 ; Bow- 
 man V. Conn, 8 Ind. 58 ; Scoggin v. 
 Slater, 22 Ala. 687 ; Rhodes v. Otis, 33 
 Ala. 578 ; Gore v. McBrayer, 18 Cal. 
 582; Bostwick v. Leach, 3 Day, 476; 
 Frear v. Hardenbergh, 5 Johns. 272 ; 
 Onderdonk v. Lord, Hill & D. 129; 
 Howard v. Easton, 7 Johns. 205 ; Phil- 
 lips V. Thompson, 1 Johns. Ch. 131 ; 
 Finch V. Finch, 10 Ohio State, 501 ; 
 Hogg V. Wilkins, 1 Grant, Pa. 67; 
 Richards v. Richards, 9 Gray, 313; 
 Barnet v. Dougherty, 8 Casey, Pa. 371 ; 
 Trammell v. Trammell, II Rich. 471 ; 
 
 522 
 
 Carroway v. Anderson, 1 Humph. 61 ; 
 May V. Baskin, 12 Sm. & M. 428; Buck 
 V. Pickwell, 27 Vt. 157 ; Barnard v. 
 Whipple, 29 Vt. 401 ; Bliss v. Thomp- 
 son, 4 Mass. 488, 491 ; Cook v. Stearns, 
 11 Mass. 533; Hall v. McLeod, 2 Met. 
 Ky. 98; Wright v. De Grofi", 14 Mich. 
 164 ; Folsom v. Great Falls Manuf. Co. 
 9 N. H. 355; New Orleans, &c. Rail- 
 road V. Moye, 39 Missis. 374 ; Keyser v. 
 School District, 35 N. H. 477 ; Fisher 
 V. Fields, 10 Johns. 495; Benedict v. 
 Beebee, 11 Johns. 145; Smith v. Bum- 
 ham, 3 Sumner, 435 ; Henley v. Brown, 
 1 Stew. 144 ; Chambliss v. Smith, 30 
 Ala. 366 ; Hammond v. Cadwallader, 29 
 Misso. 166; Graves v. Graves, 45 N. H. 
 323; Newnan v. Carroll, 3 Yerg. 18; 
 Ledford v. Ferrell, 12 Ire. 285; Bryant 
 V. Hendricks, 5 Iowa, 256; Bannon v. 
 Bean, 9 Iowa, 395 ; Owen v. Estes, 5 
 Mass. 330; Bruce v. Hastings, 41 Vt. 
 380; James v. Drake, 39 Texas, 143; 
 White V. Butt, 32 Iowa, 335 ; Gould v. 
 Mansfield, 103 Mass. 408; Copeland v. 
 Wading River Reservoir, 105 Mass. 
 397 ; Thayer v. Rock, 13 Wend. 53 ; 
 Detroit, &c. Railroad v. Forbes, 80 
 Mich. 165. 
 
CHAP. XLIX.] BARGAININGS AS TO EEALTY. § 1295 
 
 distinction in reason, and, on the whole, upon the conflicting 
 authorities, appears to be, that, if the seller is to sever the 
 thing from the land and deliver it, the contract may be oral ; 
 but, if the buyer is to sever it and take it away, the case is 
 within the statute and there must be writing. In the one 
 instance, the thing sold is personalty ; in the other, it is 
 realty. Thus, — 
 
 § 1294. Trees — (Pruit), — Following what is believed to 
 be the better opinion, standing trees are real estate ; there- 
 fore a contract for any interest in them while they remain 
 standing — as, where one purchases them to be removed at 
 his discretion,^ or buys a certain number of cords of wood 
 "standing in the tree " ^ — must be in writing.^ And it is 
 the same of a sale of growing fruit, which is a part of the 
 trees.* But it is plainly otherwise where the owner has sev- 
 ered or is to sever the fruit from the trees or the trees from 
 the soil, and he passes them over to the purchaser as apples, 
 wood, or lumber. It is otherwise, also, where one bargains 
 with the owner of the soil to cut the trees into wood, and 
 deliver it to such owner at so much a cord. This is but an 
 ordinary labor contract.® Again, — 
 
 § 1295. Ore and Coal — are personal property when severed 
 from the soil. But a mining light, whereby one not an owner 
 of the land is to dig and carry them away as his own, per- 
 tains to the realty, and it can be conferred only by writing.^ 
 On the other hand, — 
 
 1 Bowers v. Bowers, 14 Norris, Pa. sey, Pa. 376 ; Slocum v. Seymour, 7 
 477, following Pattison's Appeal, 11 Vroom, 138. But see Byassee v. Keese, 
 Smith, Pa. 294. 4 Met. Ky. 372 ; Cain v. McGuire, 13 
 
 2 Knox V. Haralson, 2 Tenn. Ch. B. Monr. 340 ; Whitmarsh v. Walker, 1 
 232, 237. Contra, Green v. North Caro- Met. 313 ; Claflin v. Carpenter, 4 Met. 
 Una Eailroad, 73 N. C. 524. 580 ; Nettleton v. Sikes, 8 Met. 34. 
 
 8 Ante, § 396 ; Owens v. Lewis, 46 < Rodwell v. Phillips, 9 M. & W. 501. 
 
 Ind. 488 ; Cool v. Peters Box, &c. Co. 87 6 Killmore v. Hewlett, 48 N. Y. 569. 
 
 Ind. 531 ; Buck v. Pickwell, 27 Vt. 157 ; See Sterling v. Baldwin, 42 Vt. 306; 
 
 Hutchins v. King, 1 Wal. 53 ; Olmstead Forbes v. Hamilton, 2 Tyler, 356 ; Free- 
 
 V. Niles, 7 N. H. 522 ; Kingsley v. Hoi- man v. Headley, 4 Vroom, 523. 
 
 brook, 45 N. H. 313; Green v. Arm- ^ Riddle v. Brown, 20 Ala. 412; 
 
 strong, 1 Denio, 550 ; McGregor v. Lear v. Chouteau, 23 111. 39 ; Copper 
 
 Brown, 6 Selden, 114 ; Harrell v. Miller, Hill Mining Co. v. Spencer, 25 Cal. 18 ; 
 
 35 Missis. 700 ; Yeakle v. Jacob, 9 Ca- Melton v. Lambard, 51 Cal. 258. 
 
 523 
 
§ 1299 REQUIRED TO BE IN WRITING. [BOOK III. 
 
 § 1296. Growing Crops, — though not severed, are com- 
 monly regarded, under this statute, contrary to the rule in 
 larceny,^ as goods and chattels, to be bargained about simply 
 as such.2 In strict reason, the distinction we are considering 
 should apply to them ; so that, if the owner is first to sever 
 them and then to deliver them to the purchaser as chattels, 
 they are not within the statute ; but are within it, if the 
 buyer is to come upon the ground and himself detach them 
 from the soil and carry them o£E. And we find in the books 
 a few cases more or less leaning this way.^ Still, on the 
 whole, as to annual crops, the direct product of labor, the 
 exception of deeming them personalty for most civil purposes, 
 even while attached to the soil, is probably established too 
 firmly in authority to be overthrown. But — 
 
 § 1297. Grass, — being a permanent product of the soil, is 
 commonly regarded the same as trees ; so that a transfer of 
 it, to one who is to cut and remove it, must be in writing.* 
 
 § 1298. Right of Way. — A right of way over one's land 
 concerns the realty, and it cannot be orally granted.^ But — 
 
 § 1299. License. — A mere license to ride or walk over 
 land, or to do something else upon it, or both, is a different 
 thing.^ In the words of Parker, C. J., " a license is tech- 
 nically an authority given to do some one act, or a series of 
 acts, on the land of another, without passing any estate in the 
 land ; such as a license to hunt in another's 4and, or to cut 
 down a certain number of trees." And its validity, it being 
 executed before it is withdrawn, is derivable from the principle 
 that one cannot complain of what another has done with his 
 consent.^ Obviously, therefore, this license has no relation 
 
 1 2 Bisbop Crim. Law, § 763. ° Eramerson v. Heelis, 2 Taunt. 38; 
 
 2 Green v. Armstrong, 1 Denio, 550, Bowman v. Conn, 8 Ind. 58. 
 
 554; Austin v. Sawyer, 9 Cow. 39; * Crosby ». Wadsworth, 6 East, 602 ; 
 
 Evans v. Roberts, 5 B. & C. 829 ; Par- Carrington v. Roots, 2 M. & W. 248 ; 
 
 ker V. Staniland, 11 East, 362 ; Warwick Jones v. Flint, 10 A. & E. 75S, 760. 
 
 V. Monteitb, 2 M. & S. 205; Sainsbury ^ Hall v. McLeod, 2 Met. Ky. 98; 
 
 '•. Mattbews, 4 M. & W. 343 ; Jones v. Dillion v. Crook, 11 Bush, 321 ; Cook v. 
 
 Flint, 10 A. & E. 753 ; Marsball v. Fer- Stearns, 11 Mass. 533 ; Powers v. Clark- 
 
 Snson, 23 Cal. 65 ; Bricker v. Hugbes, 4 son, 17 Kan. 218. 
 
 Ind. 146 ; Matlock !). Fry, 15 Ind. 483 ; • Marston v. Gale, 4 Fost. N. H. 176. 
 
 Bryant v. Crosby, 40 Maine, 9. ' Cook v. Stearns, 11 Mass. 533, 537 ; 
 
 524 
 
CHAP, XLIX.] BARGAININGS AS TO REALTY. § 1300 
 
 to the requirements of the statute ; and, though under it the 
 licensee may carry off the soil or ore or trees, or do other 
 things deeply affecting the realty, it need not be in writing.^ 
 Though oral, it will furnish a perfect defence for all acts done 
 under it.^ Being presumed to proceed on a personal confix 
 dence, it is not assignable.^ And, when not coupled with an 
 interest, it may be withdrawn at pleasure.* But, — 
 
 § 1300. Coupled with Interest. — When a valuable consid- 
 eration has been paid for the oral license, or it has been acted 
 upon, the doctrine of estoppel and that relating to the exe- 
 cuted contract ^ may, or not, according to the circumstances, 
 preclude a withdrawal of such license.® Thus, to follow a dis- 
 tinction believed to be sound,'^ if one buys of another goods 
 lying on the seller's land with leave to take them away, the 
 license is irrevocable ; ^ because, under the law of estoppel,^ 
 the seller will defraud the buyer should he be permitted to 
 cut him off from taking the goods. ^^ But, if the thing sold 
 by parol is a standing tree or a growing crop of grass ^^ which, 
 both parties being presumed to know the law, they are aware 
 is not transferable except by writing, the license is revocable 
 though a consideration has been paid for it ; since, in this 
 case, unlike the other, the thing purporting to be sold is not 
 sold in fact.^^ There are multitudes of cases within this dis- 
 tinction, some of which are cited in the note ; ^^ bat it is not 
 
 Mumford b. Whitney, 15 Wend. 380, ^ Clute u. Carr, 20 Wis. 531 ; Wood 
 
 390 ; Walter v. Post, 6 Duer, 363. v. Leadbitter, 13 M. & W. 838, 845. 
 
 1 Ante, § 396 ; Harmon v. Harmon, ' Leake Con. 252. 
 
 61 Maine, 222; Greeley v. Stilson, 27 ^ Wood t'. Manley, 11 A. & B. 34; 
 
 Mich. 15.3. Heath v. Randall, 4 Gush. 195. 
 
 2 Lockhart u.' Geir, 54 Wis. 133 ; ' Lane v. Miller, 27 Ind. 534. 
 Smart v. Jones, 15 C. B. n. s. 717; i» Ante, § 284-286. 
 Clinton v. McKenzie, 5 Strob. 36 ; Cool " Ante, § 1297. 
 
 V. Peters Box, &c. Co. 87 Ind. 531. ^^ Crosby v. Wadsworth, 6 East, 602 ; 
 
 ' Darkw.Johnston, 5Smith,Pa. 164; Carrington r. Roots, 2 M. & W. 248; 
 
 Mendenhall v. Klinck, 51 N. Y. 246. Giles v. Simonds, 15 Gray, 441 ; Drake 
 
 * Wood V. Leadbitter, 13 M. & W. v. Wells, 11 Allen, 141 ; Dodge v. Mc- 
 838, 845, 854 ; Rex v. Horndon-on-the- Clintock, 47 N. H. 383 ; Chandler v. 
 Hill, 4 M. & S. 562 ; Batchelder v. Hib- Spear, 22 Vt. 388. I have not inquired 
 bard, 58 N. H. 269 ; Allen v. Fiske, 42 how far the reasoning in these cases cor- 
 Vt. 462 ; Miller v. The State, 39 Ind. responds to the reasoning which the form 
 267 ; Kivett v. McKeithan, 90 N. C. 106. of the discussion required me to employ 
 
 * Ante, § 1234-1237, and places there in the text. 
 
 referred to " Mumford v. Whitney, 15 Wend. 
 
 525 
 
§ 1303 EEQUIBED TO BE IN WRITING. [BOOK III. 
 
 deemed necessary to detain the reader with their details. 
 They are believed to be not absolutely and in all particulars 
 harmonious with one another. 
 
 § 1301. License in Writing. — Except as stated in the last 
 section, an irreversible license affecting the realty must be in 
 writing.^ Or, otherwise expressed, while an oral license does 
 not necessarily relate to an "interest in or concerning" land, 
 it may and often does ; and then, if not made good by estop- 
 pel or by voluntary fulfilment, it will be voidable. ^ 
 
 § 1302. Tenancy at Will — (Lodging Rooms). — Under a 
 prior section of this Statute of Frauds,^ a tenancy at will — 
 which is a sort of interest in land — may be created without 
 writing, where the tenant actually enters by permission ; * 
 but, under this fourth section, there can be no valid oral 
 agreement for such tenancy, not accompanied by possession.* 
 Even for the occupancy of a particular lodgiug-room in a 
 house, the contract, to bind the parties, must be in writing ; ® 
 but, for board and lodgings generally in the house, it need 
 not be.'^ 
 
 § 1303. Collateral Bargainings. — There are various collat- 
 eral bargainings, having a more or less direct relation to real 
 estate, not within the statute. Such, for example, is an 
 
 380 ; Cook V. Stearns, 11 Mass. 533 ; « 29 Car. 2, c. 3, § 1. 
 
 Hodgson t>. Jeffries, 52 Ind. 334 ; Cronk- * Withers ». Larrabee, 48 Maine, 570; 
 
 hite V. Cronkhite, 94 N. T. 323 ; Fnhr Ellis v. Paige, 1 Pick. 43 ; Hingham v. 
 
 V. Dean, 26 Misso. 116 ; Lee v. McLeod, Sprague, 15 Pick. 102 ; Mhoon v. Driz- 
 
 1 2 Nev. 280 ; Taylor v. Gerrish, 59 N. H. zle, 3 Dey. 414 ; Clark v. Smith, 1 Casey, 
 
 569 ; Miller u. The State, 39 Ind. 267 ; Pa. 137. 
 
 Cook V. Pridgen, 45 Ga. 331 ; Kamp- ^ McMuUen v. Riley, 6 Gray, 500; 
 
 house v. Gaffner, 73 111. 453 ; Thompson Vaughan v. Hancock, 3 C. B. 766 ; 
 
 V. McElamey, 1 Norris, Pa. 174; Wil- Hardy v. Winter, 38 Misso. 106; Duke 
 
 liamson v. Yingling, 93 Ind. 42 ; John- v. Harper, 6 Yerg. 280. Contra, under 
 
 son V. Skillman, 29 Minn. 95 ; United the New York statute, Young v. Dake, 
 
 States V. Baltimore, &c. Railroad, 1 1 Selden, 463 ; under the Indiana statute, 
 
 Hughes, 138 ; Hamilton, &c. Hydraulic Huffman v. Starks, 31 Ind. 474 ; and 
 
 Co. V. Cincinnati, &c. Railroad, 29 Ohio under the New Jersey statute, Birck- 
 
 State, 341 ; Wingard v. Tift, 24 Ga. head v. Cummins, 4 Vroom, 44. 
 179 ; Owen v. Field, 12 Allen, 457. * Inman v. Stamp, 1 Stark. 12; Add. 
 
 1 Selden v. Delaware, &c. Canal, 29 Con. 7th Eng. ed. 145. 
 N. Y. 6^4 ; Houghtaling v. Houghtaling, ' Wright v. Stavert, 2 Ellis & E. 721 . 
 
 5 Barb. 379. See Wilson v. Martin, 1 Denio, 602 ; 
 
 ^ 1 Chit. Con. nth Am. ed. 418; Spencer u. Halstead, 1 Denio, 606. 
 Houston V. Laffee, 46 N. H. 505. 
 
 526 
 
CHAP. XLIX.] BARGAININGS AS TO REALTY. § 13 
 
 agreement to share the profits and losses of a real-estate sp 
 ulation contemplated by the parties.^ And one verba 
 employed as an agent to sell land can recover for his s 
 vices.^ So a child's oral promise to his father, in considerati 
 of lands conveyed to him by the latter, to release to his bro 
 ers and sisters all claim to the residue of the father's esta 
 has been adjudged good.^ In like manner, a promise to 
 tend a sale of lands and buy them need not be in writin 
 The principle finds illustration in multitudes of other ca! 
 not necessary to be here particularized.^ 
 
 § 1304. Consideration. — Within a principle explained 
 the last chapter,® v?here a conveyance bargained for is actua 
 made, any oral promise regarding the consideration — as, 
 pay for the land — is good.^ But, even then, if the cons 
 eration itself is something concerning lands, within this Sti 
 ute of Frauds, the promise to perform the thing must be 
 writing to be valid.^ 
 
 § 1305. Part Performance. — The principle on which a pi 
 performance of an oral contract takes the case out of the st 
 ute was stated in the last chapter.^ The illustrations of it s 
 innumerable. 
 
 § 1306. Finally. — It is believed that, since a full expo 
 tion of the details of the subject of this chapter is impossib 
 it is best to leave the reader here ; the views already giv 
 serving to direct his further inquiries and, it is hoped, 
 
 1 Babcock v. Bead, 99 N. Y. 609 ; Nutting v. Dickinson, 8 Allen, 5 
 McCarthy v. Pope, 52 Cal. 561 ; Benja- Basford v. Pearson, 9 Allen, 387 ; Ma: 
 min V. Zell, 4 Out. Pa. 33. But see v. Mason, 3 Bush, 35 ; Mott v. Hur( 
 Parsons v. Phelan, 134 Mass. 109. Root, 73 ; Gillet v. Burr, stated 1 E( 
 
 2 Watson V. Brightwell, 60 Ga. 212. 74 ; Bradley v. Blodget, Kirby, 22 ; Ni 
 " Galbraith v. McLain, 84 HI. 379. ersou v. Saunders, 36 Maine, 4 
 * Hale V. Stuart, 76 Misso. 20. Thayer v. Viles, 23 Vt. 494 ; Bracl 
 5 Gibbons v. Bell, 45 Texas, 417; v. Evans, 1 Cush. 79; Preble v. Bi 
 
 Little V. McCarter, 89 N. C. 233 ; White win, 6 Cush. 549 ; Smith v. Gouldi 
 
 V. Smith, 51 Ala. 405; GafEord v. 6 Cush. 154; Short v. Woodward, 
 
 Steams, 51 Ala. 434 ; Estabrook v. Geb- Gray, 86 ; Trowbridge v. Wetherbee, 
 
 hart, 32 Ohio State, 415; Whitesell w. Allen, 361. And see Lower «. Winti 
 
 Heiney, 58 Ind. 108 ; McConnell v. 7 Cow. 263. 
 Brayner, 63 Misso. 461. ' Townsend v. Townsend, 6 J! 
 
 8 Ante, § 1235. 319; Patterson v. Cunningham, 3 Fa 
 
 ' Price V. Sturgis, 44 Cal. 591 ; 506. 
 Whitbeck v. Whitbeck, 9 Cow. 266 • » Ante, § 1237. 
 
 527 
 
§ 1307 REQUIRED TO BE IN WRITING. [BOOK III. 
 
 keep him from the mistakes which not unfrequently impede 
 these investigations. 
 
 § 1307. The Doctrine of this Chapter restated. 
 
 This fourth section of the Statute of Frauds, in the clause 
 now under consideration, has no relation to the principle 
 which requires conveyances of land to be by deed.^ Nor 
 does it apply to any contracts which are executed on both 
 sides. Nor does it restrain the voluntary doing of anything 
 orally promised. It deals simply with what is executory. 
 Moreover, it leaves in full force the doctrine of estoppel, and 
 permits its application to lands ; so that, under this doctrine, 
 lands may even be transferred without writing .^ And it does 
 not require writing for any contract which the law creates.^ 
 The further details will best appear on a reperusal of the 
 chapter. 
 
 1 Cherry v. Heming, 4 Exch. 631. ^ Ante, § 309. « Ante, § 193. 
 
 528 
 
CHAP. L.] BARGAININGS IN PERSONALTY. § 1309 
 
 CHAPTER L. 
 
 BARGAININGS IN PERSONAL PKOPEETY. 
 
 § 1308. By Simple Contract — (Seal — ■Writing). — A seal 
 is not required to a conveyance of personal property. Nor, 
 except as to some particular things by reason of their special 
 nature, is, at the common law, any writing.^ And it is the 
 same of other bargainings relating to personal property.* 
 Thus,— 
 
 § 1309. Formalities at Common-law Sale of Goods. — Aside 
 from the Statute of Frauds, an executory contract for the 
 purchase and sale of goods does not differ from any other ; 
 requiring only the mutual consent of the parties, expressed 
 either orally or in writing, and a consideration. To complete 
 the sale, so that the title will pass to the buyer, the goods 
 must be separated from the bulk whereof they are a part, or in 
 some other way be so distinguished or specified that they can 
 be known ; and the terms must be definitively agreed upon. 
 But neither actual delivery nor payment is indispensable.^ 
 The buyer may then take possession of them, " on payment 
 or tender of the price, and not otherwise," where nothing had 
 
 1 2 Bl. Com. 440-443. dock, 23 Cal. 540; Wilson v. Stratton, 
 
 " Ante, § 1231. 47 Maine, 120; Sweeney v. Owsley, 14 
 
 ' 2 Kent Com. 492 ; 1 Chit. Con. B. Monr. 413 ; Doremas v. Howard, 3 
 
 nth Am. ed. 518-528; De Fonclear v. Zab. 390; Connor v. Williams, 2 Rob. 
 
 Shottenkirk, 3 Johns. 170; Carter v. N. Y. 46; Dunlap v. Berry, 4 Scam. 
 
 Jarvis, 9 Johns. 143 ; Gardiner v. Suy- 327 ; Wing v. Clark, 24 Maine, 366 ; 
 
 dam, 3 Selden, 357 ; McClang v. Kclley, Goodrum v. Smith, 3 Humph. 542 • 
 
 21 Iowa, 508 ; Tome v. Dubois, 6 Wal. Broyles v. Lowrey, 2 Sneed, Tenn. 22 ; 
 
 548; Folsom v. Moore, 19 Maine, 252; Hudson v. Weir, 29 Ala. 294; Riddle v. 
 
 Stone V. Peacock, 35 Maine, 385 ; Mc- Varnum, 20 Pick. 280; McLaughlin v. 
 
 Coy i;. Moss, 5 Port. 88; Cockrell v. Piatti, 27 Cal. 451. > 
 
 Warner, 14 Ark. 345 ; Walden v, Mur- 
 
 34 529 
 
§ 1311 EEQUIEED TO BE IN WEITING. [BOOK III. 
 
 been arranged as to the time of payment or of delivery, or 
 without payment if there had been an affirmative agreement 
 for credit.^ A third person, who has attached the goods as 
 the seller's, or bought them of him, occupies a different posi- 
 tion ; and, as against him, to render the title of the first 
 purchaser complete, they must have been paid for, or de- 
 livered, or both, or neither, according to the circumstances, 
 and the varying adjudications of the different tribunals.^ 
 Now, — 
 
 § 1310. statute of Frauds. — Upon this condition of things 
 came the Statute of Frauds, explained, as to its fourth sec- 
 tion,* in the last two chapters. A further provision of the 
 same statute is, like that one, perhaps common law in our 
 States ; and, in a similar way, it has been in all re-enacted, 
 substantially in the same terms, but with various minor dif- 
 ferences.* In the original statute of Charles II., it constitutes 
 the — 
 
 § 1311. Seventeenth Section. — Its words are : — 
 
 " No contract for the sale of any goods, wares, and merchandises, for 
 the price of * ten pounds sterling or upwards, shall be allowed to be 
 good; except the buyer shall accept part of the goods so sold, and 
 actually receive the same, or give something in earnest to bind the bar- 
 gain, or in part of payment, or that some note or memorandum in writ- 
 ing of the said bargain be made, and signed by the parties to be charged 
 by such contract or their agents thereunto lawfully authorized." ° . 
 
 1 2KentCom.492; Atwoodu. Iiucas, 497; Sawyer ti. Nichols, 40 Maine, 212 
 53 Maine, 508. Tanneret v. Edwards, 18 La. An. 606 
 
 2 Costarw. Davies, 8 Ark. 213; Davis Rockwood v. CoUamer, 14 Vt. 141 
 V. Eansom, 4 Mich. 238 ; Woodburn v. Stephenson v. Clark, 20 Vt. 624 ; Mc- 
 Cogdal, 39 Misso. 222 ; Samuels v. Gor- Kinley v. Ensell, 2 Grat. 333 ; Parsons 
 ham, 5 Gal. 226; Jorda v. Lewis, 1 La. v. Dickinson, 11 Pick. 352. 
 
 An. 59 ; Vining v. Gilbreth, 39 Maine, s Ante, § 1232. 
 
 496; Barr v. Eeitz, 3 Smith, Pa. 256; * Ante, § 1229, 1230. 
 
 Pierce v. Chipman, 8 Vt. 334, 337 ; * One of the effects of the statute of 
 
 Foster v. Wallace, 2 Misso. 231 ; Lud- 9 Geo. 4, c. 14, § 7, enacted in 1828, too 
 
 wig V. Fuller, 17 Maine, 162 ; Kendall late to be common law with us, was to 
 
 V. Hughes, 7 B. Monr. 368 ; Veazie v. change the words " for the price of" to 
 
 Somerby, 5 Allen, 280 ; Lake v. Morris, " of the value of." Harman v. Reeve, 
 
 30 Conn. 201 ; Marshall v. Morehouse, 18 C. B. 587. 
 14 La. An. 689 ; Short v. Tinsley, 1 Met. 6 29 Car. 2, c. 3, § 17. 
 
 Ky. 397 ; Rowland r. Harris, 4 Mason, 
 530 
 
CHAP. L.] BAKGAINING9 IN PERSONALTY. § 1315 
 
 §1312. Executed.^ It is unquestioned doctrine that this 
 seventeenth section, unlike the fourth,^ extends to the exe- 
 cuted contract; by reason of which no sale is valid except 
 when its terms have been complied with.^ On the other 
 hand, — 
 
 § 1313. Executory. — There were early rulings in England 
 to the effect that this statute does not include executory con- 
 tracts.' To correct which the statute of 9 Geo. 4, c. 14, § 7, 
 directed that it should be applied " notwithstanding the goods 
 may be intended to be delivered at some future time, or may 
 not at the time of such contract be actually made, procured, 
 or provided, or fit or ready for delivery, or some act may be 
 requisite for the making or completing thereof, ot rendering 
 the same fit for delivery." But before this statute was passed 
 the courts had corrected their early mistake, holding this sev- 
 enteenth section applicable as well to executory as to exe- 
 cuted contracts.* And the latter is the doctrine of the 
 American courts.^ 
 
 § 1314. All Sales — (Auction). — This statute governs all 
 the forms of selling goods ; as, at auction, ^ and every manner 
 of private sale. As to the sorts of things, — 
 
 §1315. "Goods, "Warea," &o. — Not all personal things 
 which are the subjects of sale are within this statute ; but its 
 words are " goods, wares, and merchandises," which, while 
 they comprehend most personal property, do not all.^ They 
 are interpreted liberally ; even, in a part of our States, as 
 
 1 Ante, § 1234. Cason v. Cheely, 6 Ga. 554 ; Ed- 
 
 2 2 Kent Com. 493 ; Marsh v. Hyde, wards v. Grand Trunk Railway, 48 
 3 Gray, 331 ; Buxton v. Bedall, 3 Bast, Maine, 379 ; Waterman v. Meigs, 4 
 303 ; Alexander v. Comber, 1 H. Bl. 20. Cush. 497 ; Jackson v. Covert, 5 Wend. 
 But see Bucknam v. Nash, 3 Fairf. 139. 
 
 474. 6 Dayis v. Rowell, 2 Pick. 64 ; Davis 
 
 5 For example. Towers v. Osborne, v. Robertson, 1 Mill, 71 ; Kenworthy v. 
 1 Stra. 506 ; recitation in 9 Geo. 4, Schofield, 2 B. & C. 945. 
 
 c. 14, § 7 ; Clayton v. Andrews, 4 Bar. ' See, as to statutory terms of this 
 
 2101. sort in the criminal law, Bishop Stat. 
 
 * Rondeau v. Wyatt, 2 H. Bl. 63; Crimes, § 209, 344, 345, 1090^ 1092; 
 
 Cooper V. Elston, 7 T. R. 14, 16, 17 ; Bishop Dir. & F. § 187, note ; 2 Bishop 
 
 Garbutt V. Watson, 5 B. & Aid. 613. Crim. Law, § 358, 479, 785; 2 Bishop 
 
 6 Bennett v. Hull, 10 Johns. 364 ; Crim. Proced. § 699, 736. 
 Crookshaak v. Burrell, 18 Johns. 58; 
 
 531 
 
§ 1316 REQUIRED TO BE IN WRITING. [BOOK III. 
 
 including corporation stocks,^ bank notes,^ and promissory- 
 notes.^ The courts in other of our States* and in England 
 stop short of this ; and, in the latter, they are held not to 
 extend to stocks.^ In Georgia, "accounts," said Warner, 
 C. J., "are made transferable;" whereupon they are ad- 
 judged to be "goods, wares, and merchandise" within this 
 statute.^ In actual usage among the dealers in various sorts 
 of personal property, it is believed that the instruments of 
 trade and commerce, such as bank bills and promissory 
 notes, and ^wasi-partnership interests in corporate enter^ 
 prises, called stocks, are not often designated as "goods, 
 wares, and merchandise ; " though, like men's souls, they 
 are not unfrequently in the market, and bought and sold. 
 Again, — 
 
 § 1316. Labor and Materials — are not within these statu- 
 tory words. Therefore, plainly, an agreement with a mechanic 
 to manufacture an article from the employer's materials need 
 not be in writing.'^ And even where the mechanic furnishes 
 them, the doctrine appears to be reasonably well established, 
 though not quite without dissent, that an oral bargaining for 
 the making of the thing is good.^ But a contract for mer- 
 chandise, as distinguished from this for the manufacture of 
 the particular article, is within the statute, though it is to be 
 
 1 Tisdalew. Harris, 20 Pick. 9; North ' Atkinson v. Bell, 8 B. & C. 277, 
 «. Torest, 15 Conn. 400; Southern Ins. 283. 
 
 &c. Co. V. Cole, 4 Fla. 359 ; Colvin v. * Parsons v. Loucks, 48 N. T. 17 ; 
 
 Williams, 3 Har. & J. 38 ; Fine v. Cummings v. Dennett, 26 Maine, 397 ; 
 
 Hornsby, 2 Misso. Ap. 61 ; Boardman Finney v. Apgar, 2 Vroom, 266 ; Crook- 
 
 V. Cutter, 128 Mass. 388. shank v. Burrell, 18 Johns. 58; Abbott 
 
 2 Eiggs 1). Magruder, 2 Cranch C. C. v. Gilchrist, 38 Maine, 260 ; Allen v. 
 143. Jarvis, 20 Conn. 38 ; Mixer v. Howarth, 
 
 8 Baldwin v. Williams, 3 Met. 365 ; 21 Pick. 205 ; Spencer v. Cone, 1 Met. 
 
 Gooch V. Holmes, 41 Maine, 523. 283 ; Phipps v. McFarlane, 3 Minn. 109 ; 
 
 * Whittemore v. Gibbs, 4 Fost. N. H. Meincke v. Falk, 55 Wis. 427. And, as 
 
 484 ; Beers v. Crowell, Dudley, Ga. 28 ; relating to this principle, consult Rentch 
 
 Hudson V. Weir, 29 Ala, 294. v. Long, 27 Md. 188 ; , Bird v. Muhlin- 
 
 5 Bowlby ». Bell, 3 C. B. 284 ; Hum- brink, 1 Rich. 199; Eichelberger v. 
 
 ble V. Mitchell, 11 A. & E. 205 ; Watson McCanley, 5 Har. & J. 213 ; Gadsden 
 
 V. Spratley, 10 Exch. 222; Tempest v. v. Lance, 1 McMul. Eq. 87 ; Woodford 
 
 Kilner, 3 C. B. 249 ; Knight v. Barber, v. Patterson, 32 Barb. 630 ; Suber v. 
 
 16 M. & W. 66 ; Heseltine v. Siggers, 1 PuUin, 1 S. C. 273 ; Whitehead v. Root, 
 
 Exch. 856. 2 Met. Ky. 584. 
 
 « Walker ». Supple, 54 Ga. 178, 179. 
 
 532 
 
CHAP. L.] 
 
 BARGAININGS IN PERSONALTY. 
 
 §1318 
 
 delivered in the future, and it does not affirmatively appear 
 to be yet made, and it is not in fact.^ Again, — 
 
 § 1317. Price — (Value). — The contract is not within the 
 statute, therefore is governed by the common-law rules, where 
 the price is less than a sum which it specifies. We have 
 seen, that, in England,^ it is ten pounds ; in Massachusetts,^ 
 Indiana,* and New York ^ respectively, it is fifty dollars, 
 which is probably not uncommon with us. In Maine ® and 
 New Jersey ^ it is thirty dollars. Where the statutory word 
 is " value " instead of price,* and the parties in their bargain- 
 ing fix no price, the case is within or without the statute 
 according as the jury find the value above or below the stand- 
 ard sum.® In a sale of — 
 
 § 1318. More Articles than One, — the rule for determining 
 the price is to compare, not the separate price of each article, 
 
 1 Lamb o. Crafts, 12 Met. 353, 356 ; 
 Edwards v. Grand Trunk Railway, 54 
 Maine, 105 ; Waterman v. Meigs, 4 
 Cash. 497 ; Jackson v. Covert, 5 Wend. 
 139; Sawyer v. Ware, 36 Ala. 675; 
 Newman v. Morris, 4 Har. & McH. 421 ; 
 Garbutt v. Watson, 5 B. & Aid. 613. 
 In Sngland. — Possibly the statute of 
 9 Geo. 4, c. 14, § 7 (ants, § 1313), has 
 influenced the English decisions since 
 it went into effect in 1828. In Leake 
 Con. 259, the doctrine is stated as fol- 
 lows : " A contract with a person to 
 work up his own materials in making an 
 article, and to deliver it, may be a con- 
 tract for work and labor and the mate- 
 rials incident to the employment, or a 
 contract for the sale of goods, according 
 to the circumstances. Lee v. Griffin, 1 B. 
 & S. 272. Thus, a contract with an at- 
 torney to prepare a deed (see per Erie, 
 J. in Grafton v. Armitage, 2 C. B. 336, 
 339 ; per Blackburn, J. in Lee v. Griffin, 
 snpra, at p. 277), a contract for contriv- 
 ing a machine for a certain purpose 
 (Grafton v. Armitage, supra), a con- 
 tract with a printer to print a book 
 (Clay V. Yates, I H. & N. 73), are con- 
 tracts for work and labor and materials, 
 and not for the sale of goods, and are not 
 within the statute. On the other hand, 
 
 a contract for the manufacture and de- 
 livery of a machine (Atkinson v. Bell, 8 
 B. & C. 277 ; see Grafton v. Armitage, 
 supra), a contract with a tailor or shoe- 
 maker for the making of articles of their 
 trade (per Coltman, J. in Grafton v. 
 Armitage, supra, at p. 341), a contract 
 with a miller for the delivery of flour 
 (Garbutt v. Watson, 5 B. & Aid. 613; 
 and see Rondeau v. Wyatt, 2 H. Bl. 63; 
 67), or with any manufacturer for the de- 
 livery of the produce of his manufacture 
 (Wilks W.Atkinson, 6 Taunt. 11 [con- 
 tra. Parsons v. Loucks, 48 N. Y. 17]), 
 a contract to make a set of artiflcial 
 teeth to fit the mouth of a person (Lee 
 V. Griffin, supra), a contract with an 
 artist for a work of art (Lee v. Griffin, 
 supra ; but see Pollock, C. B. in Clay «. 
 Yates, supi-a, at p. 78), are not contracts 
 for work and labor, but for the sale of 
 goods when completed." 
 
 2 Ante, § 1311. 
 
 8 Mass. Gen. Stats, c. 105, § 5. 
 
 * Smith V. Smith, 8 Blackf 208. 
 
 6 Dykers v. Townsend, 24 N. Y. 57. 
 
 6 Bncknam v. Nash, 3 Fairf. 474. 
 
 7 Carman v. Smick, 3 Green, N. J. 
 252. 
 
 8 Ante, § 1311, note. 
 
 » Harman v. Reeve, 18 C. B. 587. 
 
 583 
 
§ 1319 REQUIRED TO BE IN WRITING. [BOOK IH. 
 
 but the combined price of all the avticles transferred in the 
 one sale, with the sum set down in the statute.^ 
 
 §1319. "Accept" and "Receive." — By one of the alterna- 
 tives of the statute,^ it is sufficient that, added to what con- 
 stitutes a sale at the common law,^ the " buyer," at whatever 
 price, "shall accept part of the goods so sold, and actually 
 receive the same," or the whole : the transaction is thereby 
 made valid.* Such transfer may take place, as well on a day 
 subsequent to the oral bargaining as simultaneously there- 
 with.^ Gne may actually "receive" goods which he, does 
 not accept, or "accept" what he does not receive; and the 
 statute requires both.® Acceptance may be, not only by 
 words,^ but by " such a dealing with the goods as amounts 
 to a recognition of the contract."* Less will not suffice;® 
 as, if one orders of a dealer lumber to be placed on the for- 
 mer's premises, and the latter puts it there, the ownership is 
 not transferred without some act of acceptance.^" Nor is it 
 necessarily an acceptance by a purchaser that the goods are 
 pointed out to him, and he replies that he will send for 
 them.i^ The needful receiving requires a change of posses- 
 sion, but not for any particular space of time.^^ And where 
 the goods are of a sort to admit only of a constructive de- 
 livery, it will suffice.^^ Still, in actual affairs, we have nice 
 
 1 Oilman ». Hill, 36 N. H. 311 ; Jen- « Page v. Morgan, 15 Q. B. D. 228, 
 ness V. Wendell, 51 N. H. 63 ; Baldey v. 230. 
 
 Parker, 2 B. & C. 37. And see Bishop ' Marvin v. Wallis, 6 Ellis & B. 726, 
 
 Stat. Crimes, § 1017. 733, 734 ; s. c. nom. Marvin w. Wallace, 
 
 2 Ante, § 1311. 2 Jur. N. s. 689. 
 
 ' Ante, § 1309. 8 Bowen, L. J. in Page i». Morgan, 
 
 * Outwater w. Dodge, 7 Cow, 85; snpra, at p. 233 ; Stone ». Browning, 68 
 
 Denny v. Williams, 5 Allen, 1 ; Out- N. Y. 598. 
 
 water v. Dodge, 6 Wend. 397 ; Hough- ' Brewster v. Taylor, 63 N. Y. 587 ; 
 
 taling V. Ball, 19 MisBO. 84 ; Ross v. Cahen v. Piatt, 69 N. Y. 348. 
 
 Welch, 11 Gray, 235; Vincent v. Ger- i« Cooke v. Millard, 65 N. Y. 352. 
 
 mend, 1 1 Johns. 283 ; McTaggart v. And see McKinney v. Wilson, 133 Mass. 
 
 Eose, 14 Ind. 230; Denmead v. Glass, 131. 
 
 30 Ga. 637 ; Davis v. Eastman, 1 Allen, n Knight v. Mann, 120 Mass. 219. 
 
 422; Chamberlin v. Robertson, 31 Iowa, ^ Marvin v. Wallis, supra; Remick 
 
 408 ; Malone v. Plato, 22 Cal. 103. v. Sandford, 120 Mass. 309 ; Rodgers v. 
 
 ^ Bush V. Holmes, 53 Maine, 417; Mc- Jones, 129 Mass. 420; Gaudette.w. Tra- 
 
 Knight V. Dunlop, 1 Selden, 537 ; Field i>. vis, 1 1 Nev. 149. 
 
 Runk, 2 Zab. 525 ; Veazie ». Holmes, 40 ^^ Elmore v. Stone, 1 , Taunt. 458; 
 
 Maine. 69 ; Marsh v. Hyde, 3 Gray, 331. King v. Jaiman, 35 Ark 190; Garfield 
 
 534 
 
CHAP. L.] BARGAININGS IN PERSONALTY. § 1322 
 
 questions as to whether or not there have been a receiving 
 and acceptance.^ 
 
 § 1320. " Earnest" — The statute distinguishes between 
 " earnest " and " part payment ; " either of which, if given by 
 the buyer, will " bind the bargain." ^ Still earnest is a par- 
 ticular sort of part payment, for it is to be counted in as so 
 much paid.* It signifies any money, or any valuable article 
 however small its value, which the buyer passes to the seller 
 by whom it is accepted in token of good faith.* But it must 
 be retained by the latter, or it is not " earnest." ^ " It has 
 fallen," says Kent, " into very general disuse in modern 
 times, and seems rather to be suited to the manners of simple 
 and unlettered ages, before the introduction of writing, than 
 to the more precise and accurate habits of dealing at the 
 present day. It has been omitted in the New York Revised 
 Statutes."® Therefore, instead of earnest, where there is 
 neither a writing nor a delivery of goods, the buyer com- 
 monly resorts to the other alternative ; namely, — 
 
 § 1321. " Part Payment" — The bargain, in such a case, is 
 good if the " buyer " shall " give something in . . . part of 
 payment ; " ^ otherwise, it is not.® 
 
 § 1322. " Note or Memorandum." — What is said, in the 
 chapter before the last, of the " Memorandum or Note " 
 which will satisfy one of the alternatives of the statute, was 
 intentionally made applicable as well to this seventeenth 
 section as to the fourth.* The leading rule is, that the mem- 
 orandum must " contain all the essential terms of a sale." ^^ 
 
 0. Paris, 96 U. S. 557 ; Davis v. Jones, Cowp. 661 , 664 ; Bach v. Owen, 5 T. E. 
 3 Houst. 68. 409, 410 ; Langfort v. Tiler, 1 Salk. 
 
 1 And see 1 Chit. Con. 11th Am. ed. 113. 
 
 554 et seq. ^ Blenkinsop v. Clayton, 1 Moore, 
 
 2 Ante, § 1311. 328, 7 Taunt. 597. 
 
 « Pordage v. Cole, 1 Saund. "Wms. « 2 Kent Com. 495, note, 
 ed. 319 Z. ' Ante, § 1311 ; Pierce v. Gibson, 2 
 
 * See and compare, in connection Ind. 408. 
 with the terms of the statute itself, the * Kirby v. Johnson, 22 Misso. 354. 
 word " Earnest " in the law dictionaries ; » Ante, § 1 242-1 249. And see Stone 
 
 also 2 Kent Com. 495 and note; 2 Bl. v. Browning, 68 N. Y. 598; Kriete i>. 
 
 Com. 447, 448 ; Add. Con. 7th Eng. ed. Myer, 61 Md. 558. 
 449, 450; 1 Chit. Con. 11th Am. ed. i" May u. Ward, 134 Mass. 127, 128, 
 
 519, 520, 564, 565 ; Blakey v. Dinsdale, by C. Allen, J. 
 
 535 
 
§ 1324 EEQUIRED TO BE IN WBITING. [BOOK III. 
 
 The reader will bear in mind that no writing is required 
 where there has been a receiving and acceptance, or earnest, 
 or part payment. 
 
 § 1323. Void or Voidable. — There is abundant authority 
 for saying, that a contract of sale in non-compliance with this 
 section is not, as under the section explained in the last two 
 chapters, voidable,^ but it is void.^ The difference appears 
 in the statutory words themselves. Still, if we bear in mind 
 that there are varying degrees of voidable, and every contract 
 is of this sort which has any validity however slight,^ we shall 
 be better satisfied with the later enunciations of the English 
 and American tribunals ; declaring it to be, both in principle 
 and in the actual results of prior decisions, voidable, and not 
 void.* It has not the same effect as some other voidable con- 
 tracts ; for it does not transmit the title,^ while some others 
 do.^ Nor is its precise effect well defined, yet it seems to 
 have some ; thus, — 
 
 § 1324. Illustrations — (Strangers — Creditors). — As under 
 the fourth section,'^ so under this, " the defence of the statute 
 is " said to be " a personal ojie, and can only be made by 
 parties or privies ; " ^ so that a stranger to the bargaining can 
 never object that it was not in writing.^ For example, after 
 two persons have made an oral agreement of purchase and 
 sale which, by this section, should be in writing, a third, who 
 defrauds one of them by representing to another that the for- 
 mer will not perform, is liable for the tort precisely the same 
 as though such agreement were duly written,^" — which, it is 
 submitted, could not be if it were a mere nullity. And a 
 creditor cannot question a sale of his debtor's goods on the 
 ground that, in violation of this section, it was oral.^^ 
 
 » Ante, § 1238. 5 Ante, § 1312 ; Alexander v. Com- 
 
 '' Alderton v. Buchoz, 3 Mich. 322 ; ber, 1 H. Bl. 20. 
 
 Daniel v. Frazer, 40 Missis. 507 ; Head 6 Ante, § 618, 672, 927, 928, 975, 976. 
 
 V. Goodwin, 37 Maine, 181. ' Ante, § 1239. 
 
 « Ante, § 617. 8 Elliott, J. in Dixon v. Duke, 85 
 
 * Lord Blaekbnrn in Maddison v. Al- Ind. 434, 439. 
 
 dersoD, 8 Ap. Gas. 467, 488; Townsend " Rickardsf.Cunningham,10Neb.417. 
 
 V. Hargraves, 118 Mass. 325, 334; Bird w Benton v. Pratt, 2 Wend. 385,390; 
 
 V. Munroe, 66 Maine, 337, 343 ; Har- Kice u. Manley, 66 N. Y. 82. 
 
 man v. Reeve, 18 C. B. 587. u Dixon w. Duke, supra. 
 536 
 
CHAP. L.] BARGAININGS IN PEBSONALTT. § 1325 
 
 § 1325. The Doctrine of this Chapter restated. 
 
 The sectiou of the Statute of Frauds explained in this chap- 
 ter, like that in the last two, renders no contract valid which 
 was not so at the common law. Both sections add to the 
 common-law requirements, neither abstracts anything there- 
 from. Whether the contract which omits the formalities 
 pointed out in this section is, like one omitting those of the 
 other, merely voidable, or is void, is a question on which 
 opinions differ. While, under the other section, a writing is 
 always necessary, under this it is but one among alternative 
 methods by which the contract is made good. For any case 
 to be within this section, the contract must be " for the sale 
 of" "goods, wares, and merchandise," of a price or value in 
 the statute specified. 
 
 537 
 
§ 1327 EEQUIEBD TO BE IN WEITING. [BOOK JH. 
 
 CHAPTER LI. 
 
 OTHER CONTRACTS AS TO "WEITING. 
 
 § 1326. Already — we have seen that oral words are of the 
 same effect in a contract as unsealed written ones ; except 
 in some special classes of cases, for each of which, by reason 
 of something supposed to distinguish it from the mass, the 
 law has provided a different rule.^ A seal, attached to what 
 without it would be a good simple contract in writing, im- 
 parts to it a certain superior quality already explained.^ To 
 continue now our illustrations of exceptions to the general 
 rule, — 
 
 § 1327. Conveyances of Land. — It has already incidentally 
 appeared ^ that a deed of real estate, conveying the freehold, 
 must be in writing under seal, irrespective of the Statute of 
 Frauds.* And some deem this statute to have no relation to 
 such deed.^ It is silent as to the seal ; yet others interpret 
 it to require, for so unquestionably does the law, from what- 
 ever source proceeding, every sort of conveyance of land 
 (except leases for three years or less, reduced, in some of our 
 States, to one year), as well as all contracts for any interest 
 in land, to be in writing.^ The statute adds " signed ; " ^ yet 
 we have probably no authority for saying, that the deed exe- 
 cuted by sealing, without the signature,^ will not suffice as a 
 conveyance. On the other hand, — 
 
 1 Ante, § 151-160, 1231. « Ante, § 1289-1291 ; 4 Kent Com. 
 
 !! Ante, § 119, 128-138, 274-279. 450 et seq. ; Steel v. Payne, 42 Ga. 207 ; 
 
 8 Ante, § 124, 151, 821, 853, 1151. Crowell v. Maughs, supra ; Whitney v. 
 
 * Crowell «. Maughs, 2 Oilman, 419 ; Swett, 2 Fost. N. H. 10; Veghte v. 
 
 McCabe v. Hunter, 7 Misso. 355 ; Swit- Raritan Water Power Co. 4 C. E. Green, 
 
 zer V. Enapps, 10 Iowa, 72 , Arms v. 142 ; Sicard v. Davis, 6 Pet. 124, 135. 
 Burt, 1 Vt. 303. ' Ante, § 1232. 
 
 ' Cherry v. Heming, 4 Exch. 631. « Ante, § 112. 
 
 638 
 
CHAP. LI.] OTHERS AS TO WEITING. §1331 
 
 § 1328. Receive Seisin. — The authority to receive seisin 
 may be orally conferred.^ Again, — 
 
 § 1329. Trusts. — By the parent Statute of Frauds, in sec- 
 tions distinct from those explained in the last three chapters,^ 
 express trusts in real estate can be created only by writing, 
 but this does not extend to implied trusts.^ This provision 
 has been generally adopted in our States.* 
 
 § 1330. Assignment. — The contract termed an assignment,^ 
 and the contract-interest thereby transferred, are distinct 
 things ; so that, though the latter was created by a writing, 
 or even by an instrument under seal, the former may be oral.^ 
 Even a judgment may be orally assigned.'^ These proposi- 
 tions include another, namely, that a record or specialty may 
 be assigned without seal.* Yet an assignment, like any other 
 contract, may, by a special provision of law, be required to 
 be under seal. Thus, — 
 
 § 1331. Interest in Land. — By the Statute of Frauds, as 
 we have seen,* there can be no unimpeachable conveyance 
 even of an equitable interest in real estate except by writing. 
 Whence it follows, that, if one has a bond for a deed, he can- 
 not make a valid oral assignment of it, as between himself 
 and his assignee ; though, as the defence under the fourth 
 section is personal only ,^'' the maker of the bond could not 
 plead the statute in bar of a suit to compel its specific 
 performance.^^ 
 
 1 Pratt V. Putnam, 13 Mass. 361; way ». FuUerton, 2 C. E. Green, 389; 
 Eeed v. Marble, 10 Paige, 409. Vose ». Handy, 2 Greenl. 322 ; Littlefield 
 
 2 29 Car. 2, c. 3, § T-9 ; Throop v. v. Smith, 17 Maine, 327. 
 
 Hatch, 3 Abb. Pr. 23. ^ Ford u. Stuart, 19 Johns. 342. And 
 
 ' Ante, § 194. See further, as to the see Brewer v. Franlilin Mills, 42 N. H. 
 
 two kinds of trusts, ante, § 1215, 1216. 292. 
 
 « 4 Kent Com. 305 ; Ready «. Kears- ' Dawson v. Coles, 16 Johns. 51; 
 
 ley, 14 Mich. 215 ; Kane v. Gott, 24 Howell v. Bulkley, 1 Nott.& McC. 249, 
 
 Wend. 641; Church v. Sterling, 16 250; Becton w Ferguson, 82 Al^. 599 ; 
 
 Conn. 388 ; Moore v. Moore, 38 N. H. Gotten v. Williams, 1 Fla. 37 ; Morange 
 
 382 ; Fleming v. Donahoe, 5 Ohio, 255 ; v. Edwards, 1 E- D. Smith, 414 ; Moore 
 
 Fairchild v. Rasdall, 9 Wis. 379. v. Waddle. 34 Cal. 145. 
 
 5 Ante, § 1177-1199. ' Ante, § 1286, 1290-1298, 1302, 1327. 
 
 « Ante, § 155 ; Currier v. Howard, i" Ante, § 1238, 1239. 
 
 14 Gray, 511, 513; Allen v. Pancoast, " The authorities to this plain propo- 
 
 Spencer, 68 ; Mitchell w. Mitchell, 1 Gill, sition are less distinct and direct than 
 
 66; Sexton B. Fleet, 2 Hilton, 477 ; Gal- one might desire, but the reader may 
 
 539 
 
§ 1335 REQUIBED TO BE IN WRITING. [BOOK III. 
 
 § 1332. Notes and BiUs. — " By the custom of merchants, 
 bills of exchange and promissory notes, and other similar 
 negotiable instruments, must be reduced into writing, and 
 signed by the parties thereto." ^ But this results equally also 
 from the necessity of the case. Words are air, and there 
 could be no indorsement written on the back of oral words.^ 
 Yet we have seen ^ that an oral acceptance of a bill is good, 
 — a proposition which has been limited to cases where the 
 drawee has funds of the drawer ; so that, when he pays, he 
 satisfies his own debt.* 
 
 § 1333. statutory Liens, — of which there are in our States 
 manj"^ varieties, are in some cases available only when there 
 is a written contract, and in some it must also be re- 
 corded.* 
 
 § 1334. other Contracts. — There are probably, in every 
 one of our States, other contracts required to be in special 
 forms. But they depend on statutes not uniform, or not 
 widely operative throughout the country ; so it is best that 
 these illustrations here close. 
 
 § 1335. The Doctrine of this Chapter restated. 
 
 The Statute of Frauds is the only one of constant use, pre- 
 vailing in all our States, by which special forms have been 
 added to those of the common law, for particular sorts of con- 
 tract. Yet by the common law, in its later period, and irre- 
 spective of this statute, a seal is necessary to a conveyance of 
 land, transferring the seisin. Prima facie, any contract by 
 mere oral words is good. One who claims that a bargaining, 
 other than a conveyance of land, or a biU or note, is not valid 
 
 consult the following: Bullion v. Camp- i 1 Chit. Con. Uth Am. ed. 91. 
 
 bell, 27 Texas, 6.'53; Newnan v. Carroll, '^ Ante, § 152. 
 
 3 Yerg. 18 ; Currier v. Howard, 14 Gray, ' Ante, § 157. 
 
 511 ; Robinson v. Williams, 3 Head, * Walton v. Mandeville, 56 Iowa, 
 
 540 ; Richards v. Richards, 9 Gray, 313 ; 597. 
 
 Finch V. Finch, 10 Ohio State, 501, 508, « Bain v. Brooks, 46 Missis. 537 ; 
 
 509 ; Millard v. Hathaway, 27 Cal. 119 ; Shepherd v. Leeds, 12 La. An. 1 ; Ritter 
 
 Love V. Cobb, 63 N. C. 324 ; Durst v. v. Stevenson, 7 Cal. 388 ; Hilliard v. Al- 
 
 Swift, 11 Texas, 273 ; Chadsey v. Lewis, len, 4 Cnsh. 532. 
 
 1 Gilman, 153. 
 
 540 
 
CHAP. LI.] OTHERS AS TO WRITING. § 1335 
 
 without writing, must show the statute. And there are in- 
 stances, not mentioned in the preceding chapters, in which 
 he can do so ; as, in some of our States, an insurance policy 
 is by statute rec[uired to be in writing,^ and perhaps even 
 under seal.' 
 
 1 Ante, § 154. 
 
 ' Lindaner v. Delaware Ins. Co. 13 Ark. 461. 
 
 541 
 
§ 1338 TIME AND PLACE. [BOOK lY. 
 
 BOOK IV. 
 
 % 
 
 TIME AND PLACE. 
 
 CHAPTER LII. 
 
 thib as an element in the contract. 
 
 § 1336. Introduction. 
 
 1337-1343. How compute. 
 
 1344-1348. Essence of Contract or not. 
 
 1349. Doctrine of Chapter restated. 
 
 § 1836. How Chapter divided. — We shall Consider, I. How 
 Time in a Contract is computed ; II. Time as of the Essence 
 of the Contract or not. 
 
 I. How Time in a Contract is computed, 
 
 § 1337. Elsewhere. — In the author's " Written Laws," 
 there is a chapter on the " Computation of Time in Stat- 
 utes." ^ It was there explained that, with slight exceptions, 
 the rules for statutes and contracts are the same.^ Repeti- 
 tions here of what is said there, are as much as possible 
 avoided, but they cannot be absolutely ; so the reader will 
 enlarge his views of the subject by consulting that chapter in 
 connection with this. 
 
 § 1838. Year — Half — Quarter — 29th February. — The Eng- 
 lish statute of 21 Hen. 3, entitled De Anno et Die Bissextili, is 
 common law in our States.^ It provides that the 29th day of 
 
 ' Bishop "Written Laws, § 104 6-111. ' Swift v. Tousey, 5 Ind. 196 ; Craft 
 
 " lb. § 104 6, 105, note. v. State Bank, 7 Ind. 219; Kohler v. 
 
 642 
 
CHAP. Llli] TIME AS ELEMENT. § 1339 
 
 February, in leap year, " and the day next going before, shall 
 be accounted for one day." ^ Hence, among other conse^ 
 quences, if there could be any doubt under the prior law, a 
 year in a contract, alike in leap year and in other years, is 
 measured by the calendar and varies with it.^ Still this word 
 "year," like any other, may be modified in meaning by the 
 connection in which it is used, ancj the subject.^ Coke tells 
 us, that a half year consists of one hundred and eighty-two 
 days, and a quarter year of ninety-one days; "fqr the odd 
 hours, in legal computation, are rejected." * 
 
 § 1339. Month. — As our law had a beginning before the 
 present calendar, and then the word " month " meant a lunar 
 one of twenty -eight days,^ neither in popular acceptation nor 
 in legal interpretation was its meaning at once completely 
 changed. Even to this day, by the English courts, " month " 
 in a contract is held to be lunar, where there is neither a 
 custom nor anything in its subject or other terms to indicate 
 the contrar}'.® Yet the intention of the parties is accepted as 
 the test of the sort of month ; ^ and, in mercantile paper, 
 under the custom of merchants, it is interpreted to be calen- 
 dar.* With us, in all sorts of contract, a calendar month is 
 commonly understood to be meant, unless the contrary ap- 
 pears.* As some months are by the calendar longer than 
 
 Montgomery, 17 Ind. 220; Kilty Rep. word "month" should, in statutes, be 
 
 Stats. 208 J Report of Judges, 3 Binn. interpreted as calendar, unless the con- 
 
 595, 600. trary appeared. But I have seen noth- 
 
 ^ Rex V. Worminghall, 6 M. & S. ing to indicate that it has had any effect 
 
 350. on the construction of contracts. 
 
 2 And see Co. Lit. 135 a; 2 InSt. 1 Lang v. Gale, 1 M. & S. 111. 
 
 320; Englemanu. The State,2lnd. 91; 8 2 Chit. Con. 11th Am. ed. 1064; 
 
 Anonymous, 1 Ld. Raym. 480. LefKngwell v. White, 1 Johns. Cas. 99 ; 
 
 . * Bishop Written Laws, § 106; Thomas v. Shoemaker, 6 Watts & S. 
 
 Thornton v. Boyd, 25 Missis. 598; 179; Bank of Tennessee v. OfiScer, 3 
 
 Paris V. Hiram, 12 Mass. 262. Baxter, 173. 
 
 * Co. Lit. 135 6. » Sheets v. Selden, 2 Wal. 177, 190; 
 
 'Bishop Written Laws, §105; Hardin t>. Major, 4 Bibb, 104 ; Shapley 
 
 Catesby's Case, 6 Co. 61 b,62a; Tullet v. Garey, 6 S. & R. 539 ; Satterwhite v. 
 
 V. Linfield, 3 Bur. 1455. Burwell, 6 Jones, N. C. 92 ; Leffingwell 
 
 « Simpson ». Margitson, 11 Q. B. u. White, 1 Johns. Cas. 99; Thomas w. 
 
 23 ; Turner v. Barlow, 3 Fost. & F. 946. Shoemaker, 6 Watts & S. 179. As to 
 
 The former of these cases was before what is half of a month, see Grosvenor 
 
 the enactment of 13 & 14 Vict. c. 21, v. Magill, 37 III. 239. 
 § 4, A.D. 1850, which directed that the 
 
 643 
 
§ 1342 TIME AND PLACE. [BOOK IV. 
 
 others, so they are in a contract, each particular month being 
 measured by the part of the calendar in which it belongs.^ 
 
 § 1340. Day — (Fractions of). — In general, a day in our 
 law consists of twenty-four hours, beginning and ending at 
 midnight.^ But, in computing time, fractions of a day are, 
 as a rule, disregarded ; ^ though they are taken into the ac- 
 count in exceptional instances, where justice requires.* Com- 
 monly the fraction is counted as an entire day, yet it is 
 sometimes altogether rejected,^ or one fraction is rejected and 
 another is reckoned as a day. Thus, — 
 
 § 1341. Numbered Days. — On a promise to do a thing in a 
 specified number of days, the fraction of the day of the prom- 
 ise is rejected, and that of the day of performance is reckoned 
 as a full day ; for example, if one on Monday bargains to 
 pay money in seven days, payment is due the next Monday.® 
 Or, if the undertaking were to pay money in seven days after 
 notice, and notice was given on Monday, it would be due 
 the next Monday .^ Still, — 
 
 § 1342. Subject — Words. — The form of the expression, 
 and even the subject, may, or not, in the particular instance, 
 carry the performance a day backward or forward, — a ques- 
 tion on which the books have various distinctions, with some 
 differences of judicial opinion. Yet, looking more deeply, we 
 discover that all the refinements are disregarded, and justly, 
 when they would conduct to conclusions contrary to what 
 the parties evidently meant.* And the leading and only 
 
 1 Bishop Written Laws, §110a; Sav. Bank, 104 U.S. 469; Neale ». 
 Toml. Law Diet. " Month ; " Titus ti. Utz, 7.'j Va. 480. 
 
 Preston, 1 Stra. 652 ; Watson v. Pears, ' Bishop Written Laws, § 108. 
 
 2 Camp. 294 ; Webb v. Fairmaner, 3 M. « Bigelow v. Willson, 1 Pick. 485, 
 
 & W. 473 ; Lang v. Gale, 1 M. & S. 111. 496 ; Wiggin v. Peters, 1 Met. 127, 129 ; 
 
 2 Ante, § 894; 2 Bl. Com. 141. Homes v. Smith, 16 Maine, 181, 183; 
 ' Anonymous, 1 Ld. Eaym. 480 ; Henry v. Jones, 8 Mass. 453 ; Buttrick 
 
 Bishop Written Laws, § 108 ; Jones v. v. Holden, 8 Cush. 233 ; Farwell v. 
 Planters Bank, 5 Humph. 619; Port- Rogers, 4 Cush. 460; Webb v. Fair- 
 land Bank v. Maine Bank, 11 Mass. maner, 3 M. & W. 473,477; Mooar v. 
 204 ; In re Welman, 20 Vt. 653. Covington City Bank, 80 Ky. 305. 
 
 * Bishop Written Laws, § 29, 108, ' Protection Life Ins. Co. v. Palmer, 
 
 109; 2 Saund. 6th ed. by Wms. 148 d, 81 111. 88 ; Cann v. Warren, 1 Houst. 
 
 note; Tufts v. Carradine, 3 La. An. 188; Hall ». Cassidy, 25 Missis. 48. 
 430 ; Gartside v. Silkstone, &c. Co. 21 8 Ante, § 380. 
 
 Ch. D. 762; Louisville v. Portsmouth 
 
 544 
 
CHAP. Ln.] TIME AS ELEMENT. § 1343 
 
 helpful rule derivable from the authorities appears to be, to 
 permit each particular word to be bent in its meaning by the 
 combined whole ; ^ from which whole, rather than from iso- 
 lated expressions, and from the matter of the contract, and 
 the reason of the thing, the conclusion will be deduced.^ 
 Thus,— 
 
 § 1343. Illustrations. — The word " until " is, in its strict 
 sense, exclusive of the date to which it is attached, and it is 
 so interpreted where there is nothing to indicate the con- 
 trary.3 But the connection may show it to be inclusive.* 
 Thereupon, taking into the account what was applicable 
 to the particular case, an insurance policy for six months, 
 " from the 14th day of February until the 14th day of Au- 
 gust," was adjudged to cover a loss on the latter day.^ And, 
 still regarding the intent in the particular instance, an assign- 
 ment of aU rents " coming due to me until October 1 " was 
 construed as including those payable on the first day of 
 October ; while yet it was observed that " until," like 
 "from" and "between," commonly "excludes the day to 
 which it relates."^ "From" was given its more common 
 meaning as exclusive, in a lease for two years " from the first 
 day of July," making it commence on the second of July. 
 And it was observed that, " where time is computed from an 
 act done, the general rule is to include the day ; where it is 
 computed from the day of the act done, the day is ex- 
 cluded," ^ — a distinction for which there is a good deal of 
 authority.* But it is believed that not all courts will, and 
 
 1 Ante, § 382, 383. * Isaacs v. Boyal Ins. Co. Law Rep. 
 
 2 Wiggin J). Peters, 1 Met, 127 ; Lester 5 Ex. 296. 
 
 V. Garland, 15 Ves. 248; Dakins u. Wag- « Kendall v. Kingsley, 120 Mass. 94, 
 
 ner, 3 Dowl. P. C. 535 ; Brown v. John- 95. And see The State v. Schnierle, 5 
 
 son. Car. & M. 440 , Pugh v. Leeds, Rich. 299 ; O'Connor v. Towns, 1 Texas, 
 
 Cowp. 714; Isaacs v. Royal Ins. Co. 107. 
 
 Law Rep. 5 Ex. 296; Commercial ' Atkins v. Sleeper, 7 Allen, 487, 
 
 Steamship Co. v. Boulton, Law Rep. 10 488, by Chapman, J. ; Perry v. Provi- 
 
 Q. B. 346; Page v. Weymouth, 47 dent Life Ins. Co. 99 Mass. 162. 
 Maine, 238; The State v. Schnierle, 5 ^ Bishop Written Laws, § 31 a; 
 
 Rich. 299. Hampton i». Erenzeller, 2 Browne, Pa. 
 
 " People V. Walker, 17 N. Y. 502 18; Chiles v. Smith, 13 B. Monr. 460; 
 
 * Rex V. Stevens, 5 East, 244. White v. Cruteher, 1 Bush, 472 ; Wayne 
 
 V. Dufiy, 1 Philad. 367. 
 35 545 
 
§ 1347 TIME AND PLACE. [BOOK IV, 
 
 none should, adhere to this or any other like technical dis- 
 tinction, in a case where, by disregarding it, they can better 
 carry into effect what, all the considerations being taken into 
 the account, it is reasonably plain the parties meant.^ 
 
 II. Time as of the Essence of the Contract or not 
 
 § 1344. In General. — One's undertaking to do a thing on a 
 particular day is broken if, when the day has passed, with no 
 default in the other party, and no excuse appearing, it is not 
 done.2 And, in general, in a court of law, the time within 
 which a contract is to be performed is as much the essence of 
 it as any other part.^ But — 
 
 § 1345. Waiver. — Time may be the subject of waiver, as 
 already explained.* Again, — 
 
 § 1346. Benefit Conferred. — One may be entitled to re- 
 cover, not universally, but under various exceptional circum- 
 stances not here to be particularized, for a benefit which, in 
 the course of an ineffectual performance of his contract, he 
 has conferred on the other party, who has accepted and 
 retains it ; the contract itself being by the former broken, 
 whether in the particular of time or in any other.^ Now, — 
 
 § 1347. Equity — regards time somewhat differently. Not 
 exclusively,® but oftenest, the question arises on a bill for the 
 specific performance of a contract. Then, should the com- 
 plainant have committed a lapse as to time, if time was not 
 what is termed of the essence of the contract, if he acted in 
 
 1 Goode V. Webb, 52 Ala. 452; 8 Warren u. Bean, 6 Wis. 120, 124; 
 Wood V. Commonwealth, 11 Bush, 220 ; Barrett v. Hard, 23 La. An. 712 ; O'Don- 
 Bemis v. Leonard, 118 Mass. 502; nell w. Leeman, 43 Maine, 158; Crom- 
 Lester v. Garland, 15 Ves. 248 ; Lang v. well v. Wilkinson, 18 Ind. 365 ; Hill v. 
 Phillips, 27 Ala. 311 ; Cornell v. Monl- School District, 17 Maine, 316; Allen i'. 
 ton, 3 Denio, 12 ; Burr v. Lewis, 6 Cooper, 22 Maine, 133. 
 
 Texas, 76; Kimm v. Osgood, 19 Misso. * Ante, § 795-798. 
 
 60; Weeks v. Hull, 19 Conn. 376; Gor- ^ For something of the principle, see 
 
 ham V. Wing, 10 Mich. 486. ante, § 217, 286, 301, 968-970, 1091- 
 
 2 HumeK.Peploe,8East, 168; Poole 1110, 1219, 1221-1225; Barnwell ». 
 w. Tumbridge, 2 M. & W. 223 ; Marshall Kempton, 22 Kan. 314. 
 
 V. Ferguson, 23 Cal. 65 ; Hansen v. « Whittington v. Roberts, 4 T. B. 
 
 Kirtley, 11 Iowa, 565; Weeks w. Little, Monr. 173; Seton v. Slade, 7 Ves. 
 89 N. Y. 566, 569. 265. 
 
 546 
 
CHAP. LII.] TIME AS ELEMENT. § 1349 
 
 good faith, and if his cause is meritorious, he will have the 
 relief prayed.^ And such is the ordinary case.^ But if the 
 parties regard it of the essence, — as, if they have made it 
 such by the form of their contracting,^ — or if the nature of 
 the subject renders it such,* or if the justice of the individual 
 case requires, the court will treat it as of the essence, and 
 hold the parties to the consequences.^ 
 
 § 1348. At Law under Statutes. — In England, the Judica- 
 ture Act of 1873 directs the courts of law to follow the equity 
 rules on this question.^ It is believed that such also is the 
 effect of some of our American legislation.'' 
 
 § 1349. The Doctrine of this Chapter restated. 
 
 Time in a contract is, in most respects, computed by the 
 judge in the same way as by any intelligent, non-professional 
 person. But there are a few technical rules ; such as, that 
 a fraction of a day shall either be counted as a whole day or 
 rejected altogether, except where'^some special reason de- 
 mands the exact time. Prepositions, such as " to," " from," 
 and the like, are to include or exclude the day to which they 
 are attached, as the court deems that the one or the other 
 will better carry out the intent of the parties. And two 
 fractions, or one of them, or neither, will be rejected, those 
 
 1 1 StoryEq. § 776et seq. ; Hearnew. * Jones v. United States, 11 Ct. of 
 Tenant, 13 Ves. 287 ; Hill v. Fisher, 34 CI. 733 ; Saltonstall v. Little, 9 Norris, 
 Maine, 143; Paton v. Rogers, 6 Madd. Pa. 422; Griffin v. City Banlc, 58 Ga. 
 256 ; Jessop v. King, 2 Ball & B. 81, 94 ; 534. 
 
 Magoffin V. Holt, 1 Duvall, 95 ; Brashier 5 Shaw v. Turnpike, 2 Pa. 454 ; 
 
 ». Gratz, 6 Wheat. 528 ; Hall w. Dela- Usher v. Livermore, 2 Iowa, 117; 
 
 plaine, 5 Wis. 206; Hild v. Linne, 45 Young v. Daniels, 2 Iowa, 126; Sneed 
 
 Texas, 476 ; Langford v. Pitt, 2 P. Wms. v. Wiggins, 3 Kelly, 94 ; Liddell v. Sims, 
 
 629, 630. 9 Sm. & M. 596 ; Tyler v. McCardle, 9 
 
 2 Thurston ». Arnold, 43 Iowa, 43 ; Sm. & M. 230 ; Kemp v. Humphreys, 
 Kercheval w. Swope, 6 T. B. Monr. 362 ; 13 111. 573; Kirby v. Harrison, 2 
 Brumfield v. Palmer, 7 Blackf. 227 ; Ohio State, 326 ; Potter v. Tuttle, 22 
 Pedrick v. Post, 85 Ind. 255. Conn. 512 ; Stow v. Russell, 36 111. 
 
 8 Hicks V. Aylsworth, 13 R. I. 562; 18. 
 Taylor a. Longworth, 14 Pet. 172, 174. e 35 & 37 Vict. c. 66, § 25 (7) ; Pat- 
 
 It has even been held that this may be rick v. Milner, 2 C. P. D. 342. 
 shown by oral evidence. Thurston v. ' Post, § 1358. 
 
 Arnold, 43 Iowa, 43. 
 
 547 
 
§ 1349 TIME AND PLACE. [BOOK IV. 
 
 retained being reckoned as full days, as the intent may be 
 deemed to require. At law, one who does not perform his 
 promise on the day is in default, and he cannot have redress 
 for the default of the other party. But in equity a lapse as 
 to time, if accidental or inevitable, and proceeding from no ill 
 faith, will not bar the party's right ; except where, by a stipu- 
 lation in the contract, or from the nature of the case, or from 
 some other like reason, time is of the essence of the contract. 
 Yet never, even though time is not of the essence of the con- 
 tract, will relief be given to one who unreasonably delays.^ 
 
 I Ditto V. Harding, 73 lU. 117. 
 
 648 
 
CHAP. LIII.] STATUTE OP LIMITATIONS. § 1351 
 
 CHAPTER LIII. 
 
 THE STATUTE OP LIMITATIONS. 
 
 § 1350. Nature of Subject — (Here — Elsewhere). — The 
 Statute of Limitations is not quite uniform in our States, the 
 interpretations of it are in a measure discordant, they are 
 somewhat varying also at different periods, the cases upon it 
 are numerous, and the subject has become vast. To unfold 
 all its details here would be impossible. In " Statutory 
 Crimes," ^ the author explained its leading principles as to 
 criminal causes, and incidentally in a degree as to civil. We 
 shall in this chapter take of it such a condensed view as will 
 enable the reader the better to comprehend the expositions 
 in the other books ; or, with simply the statutes and especially 
 with the decisions also of his own State before him, to decide 
 upon most of the questions under it which arise in practice. 
 
 § 1351. Delay — (Presumptive Payment — 111 Faith). — Aside 
 from the Statute of Limitations, and as the law stood before 
 its enactment, lapse of time after a debt is contracted is 
 always material, either alone or in connection with other 
 facts, to the question whether or not it has been paid. And, 
 under the unwritten law, the doctrine appears to have become 
 established after some fluctuations, that payment of any debt, 
 even of a specialty or a judgment, will, in a case where there 
 is no recognition of it by the debtor, be presumed after a 
 delay of twenty years unexplained ; and a jury may infer it 
 after a less period, varying with the circumstances.^ More- 
 
 1 Bishop Stat. Crimes, § 257-267. Biidd, 1 Camp. 27 ; Oswald v. Legh, 1 
 
 ^ Bailey v. Jackson, 16 Johns. 210, T. R. 270 ; Rex v. Stephens, 1 Bur. 433, 
 214 ; Clark v. Hopkins, 7 Johns. 556 ; 434 ; DnfBeld v. Creed, 5 Esp. 52 ; Kings- 
 Anonymous, 6 Mod. 22; Colaell v. land i;. Boherts, 2 Paige, 193; Newman 
 
 549 
 
§ 1354 TIME AND PLACE. [BOOK IV. 
 
 over, a court of equity, or of admiralty, or a divorce court 
 will refuse to enforce claims which, from lapse of time, it 
 deems stale, or prosecuted from ill faith, or from some other 
 than the apparent cause.^ Such is now the law as to what- 
 ever is not within the — 
 
 § 1352. statute of Limitations — (Old English). — Probably 
 the earliest English statute on this subject was that of 32 
 Hen. 8, c. 2, relating to real estate. It has had little or no 
 effect in this country,^ and we need not consider it further. 
 The enactment important with us is 21 James 1, c. 16, limit- 
 ing both real and personal actions. It constitutes the founda- 
 tion of subsequent legislation, and to the present day is only 
 in part repealed in England. It is common law in some of 
 our States, possibly not in all.* But practically, in most and 
 perhaps in all of them, statutes of the State have taken its 
 place. 
 
 § 1353. Course of Discussion. — We shall now, assuming 
 that the reader has before him the limitations statute of his 
 own State, direct his attention to such adjudged doctrine as 
 will assist him in its interpretation. Thus, — 
 
 § 1354. Beginning to Run. — Assuming the statute to pro- 
 vide that all actions of a sort named shall be commenced with- 
 in a number of years which it specifies after the cause of action 
 has accrued, for the provision in most of the somewhat vary- 
 ing statutes is in substance so, the period of limitations takes 
 its initial date — or, as commonly expressed, the statute 
 
 V. Newman, 1 Stai-k. 101 ; Morrow v. 95 N. Y. 382 ; The Harriet Ann, 6 Bis. 
 Robinson, 4 Del. Ch. 521 ; Brubaker v. 13; Hatcher v. Hall, 77 Va. 573; Hill 
 Taylor, 26 Smith, Pa. 83 ; Van Loon v. v. Umberger, 77 Va. 653 ; Trader v. Jar- 
 Smith, 7 Out. Pa. 238 ; Murphy v. Phil- vis, 23 W. Va. 100 ; Three Towns Bank- 
 adelphia Trust Co. 7 Out. Pa. 379 ; ing Co. v. Maddever, 27 Ch. D. 523. 
 Shubrick v. Adams, 20 S. C. 49 ; 2 Pancoast v. Addison, Kilty Eep. 
 Houck 17. Houck, 3 Out. Pa. 552 ; Stats. 74 ; not reported as of force in 
 Gaines v. Miller, 111 U. S. 395 ; Briggs's Pennsylvania, Report of Judges, 3 Binn. 
 Appeal, 12 Norris, Pa. 485; Hillary d. 599,619. But see Boehra v. Engle, 1 
 Waller, 12 Ves. 239; Rowland u. Wind- Dall. 15; Morris y. Vanderen, 1 Dall. 
 ley, 86 N. C. 36. 64; Biddle v. Shippen, 1 Dall. 19. 
 
 1 2 Bishop Mar. & Div. § 103-112, " Cases cited from 1 Dall. supra; 
 
 342, 582, 583, 621 ; Daggers u. Van Kilty Rep. Stats. 237. For some reason 
 
 Dyck, 10 Stew. Ch. 130 ; Hall v. it does not appear in Report of Judges, 
 
 Denckla, 28 Ark. 506 ; In re Neilley, 3 Binn. 599, 623. 
 550 
 
CHAP. LIII.] STATUTE OP LIMITATIONS. § 1355 
 
 begins to run — from the time when the complaining party 
 is first entitled to bring his suit for the particular claim.^ For 
 example, since, on a promissory note or other promise to pay 
 a sum on demand, an action may be brought immediately 
 without first making a demand in fact,^ the Statute of Limita- 
 tions begins to run from the date of such promise.^ And, on 
 a promise to pay for a thing by bequest, it begins to run from 
 the death of the person promising.* On a deposit of money 
 to be kept until demanded, no action accrues until a demand 
 is made in fact; therefore, on such a deposit, the statute 
 begins to run only upon such demand, not upon the deposit 
 itself.® The books contain hundreds, perhaps thousands, of 
 illustrations of this principle.; but nothing further from them 
 seems necessary to its due comprehension.^ As to the — 
 
 § 1355. Particular Claim. — On a suit for a particular claim, 
 the Statute of Limitations will not be deemed to have begun 
 to run against it until the right to sue therefor accrued ; 
 though the plaintiff might have earlier maintained an action 
 on a different claim, operating to bar in part or in full the 
 
 1 Jones V. Jones, 91 Ind. 378 ; Mc- 99 ; Sullivan v. Davis, 29 Kan. 28 ; 
 Michael v. Carlyle, 53 Wis. 504 ; Carpenter v. Union, 58 Iowa, 335 ; Amy 
 Pridgeon v. Greatliouse, 1 Idaho, u. s. v. Dubuque, 98 U. S. 470 ; Beck v. 
 359. Tarrant, 61 Texas, 402 ; Famham 
 
 2 Post, § 1437. V. Thomas, 56 Vt. 33 ; Goodnow v. 
 " Andress's Appeal, 3 Out. Pa. 421 ; Stryker, 62 Iowa, 221 ; Brush v. Bar- 
 Milne's Appeal, 3 Out. Pa. 483, 490. rett, 82 N. Y. 400 ; Vaufrhan v. Hines, 
 
 * Eagan v. Kergill, 1 Dem. 464. 87 N. C. 445 ; National Bank v. Trim- 
 
 5 Zuck V. Gulp, 59 Gal. 142. And ble, 40 Ohio State, 629 ; Kramer v. Car- 
 see Robertson v. Dunn, 87 N. C. 191 ; ter, 136 Mass. 504; Rous v. Walden, 82 
 Moore v. Greene Commissioners, 87 Ind. 238 ; Torian v. McClure, 83 Ind. 
 N. C. 209; Emerick v. Chesrown, 90 310; HoUoway «. Turner, 61 Md. 217 ; 
 Ind. 47. Glenn v. Williams, 60 Md. 93; Harmon 
 
 6 The reader will readily find any v. Page, 62 Cal. 448 ; Webb v. Smith, 
 desired number of illustratiye cases in 40 Ark. 17; Little Rock, &c. Railway 
 the digests. The following are among v. Chapman, 39 Ark. 463 ; Bonner v. 
 them : Moore Commissioners ti. MacRae, Young, 68 Ala. 35 ; Adams v. Jones, 68 
 89 N. C. 95; Cooper v. Cooper, 61 Ala. 117; Long u. Yanceyville Bank, 
 Missis. 676; McMuUen v. Rafferty, 89 90 N. C. 405; Suber v. Chandler, 18 
 N. Y. 456 ; British North Amer. Bank S. C. 526 ; Lane v. Farmer, 11 Lea, 568 ; 
 V. Merchants Bank, 91 N. Y. 106 ; Frank Sturgis v. Preston, 134 Mass. 372 ; Tiles- 
 V. Lanier, 91 N. Y. 1 12 ; Harrington v. ton v. Brookline, 134 Mass. 438 ; School 
 Keteltaa, 92 N. Y. 40 ; Kent Railroad v. District v. School District, 105 111. 653 ; 
 Wilson, 5 Houst. 49 ; Bickle v. Chrisman, Newton v. Hammond, 38 Ohio State, 
 76 Va. 678 ; Bacon v. Rives, 106 U. S. 430. 
 
 551 
 
§ 1357 TIME AND PLACE. [BOOK IV. 
 
 present one. For example, if, after a trespass, rendering the 
 wrong-doer liable to a suit for damages, he promises to pay 
 them, the statute does not run against this promise until it is 
 made, though it does run against the original trespass.^ In 
 like manner, though the attorney in a cause has the right to 
 withdraw and collect from his client compensation for ser- 
 vices rendered, still, if he does not, the Statute of Limitations 
 does not commence its effect upon his bill until his services 
 are ended by the rendition of final judgment.^ And other 
 cases of continuous employment, within this principle, are 
 therefore also within this rule.^ 
 
 § 1356. Continuing to Run. — After the statute has begun 
 to run, it in most circumstances so continues, notwithstand- 
 ing a subsequent obstacle to the suit, unless an express excep- 
 tion in the statute otherwise provides.* Especially, — 
 
 § 1357. Not Knowing. — One's ignorance of the facts giv- 
 ing him a cause of action against another — as, for the latter's 
 undisclosed neglect ^ or breach of trust,® or having become 
 able to pay what he had promised when he should be so,'' or 
 for an unknown defect in a title which he had warranted,^ or 
 the like — will not, in a court of law, prevent or intercept 
 the running of a limitations statute which has no clause 
 excepting this sort of case.^ But — 
 
 1 Farnham v. Thomas, 56 Vt. 33. ton B.Nichols, 55 Texas, 217; Kistler 
 And see McCombs v. Guild, 9 Lea, v. Hereth, 75 Ind. 177. 
 
 81. 6 Short V. McCarthy, 3 B. & Aid. 
 
 2 Eliot V. Lawton, 7 Allen, 274 ; 626 ; Howell v. Toung, 5 B. & C. 259 ; 
 Adams v. Fort Plain Bank, 36 N. Y. Brown v. Howard, 2 Brod. & B. 73 ; 
 255; Fenno v. English, 22 Ark. 170; Crawford v. Gaulden, 33 6a. 173; Sin- 
 Walker V. Goodrich, 16 111. 341 ; Lichty clair v. South Carolina Bank, 2 Strob. 
 V. Hugus, 5 Smith, Pa. 434; Martin- 344. 
 
 dale V. Falkner, 2 C. B. 706 ; White- 6 Colev. McGlathry, 9 Greenl. 131. 
 
 head v. Lord, 7 Bxeh. 691 ; Davis v. ' Waters v. Thanet, 2 Q. B. 757. 
 
 Smith, 48 Vt. 52 ; Noble v. Bellows, 53 ' Leonard v. Pitney, 5 Wend. 30. 
 
 Vt. 527. 9 Foster v. Rison, 17 Grat. 321 ; 
 
 5 Sullivan v. Davis, 29 Kan. 28 ; Campbell v. Long, 20 Iowa, 382 ; Mar- 
 Jones V. Grand Trunk Railway, 74 tin y. Decatur Bank, 31 Ala. 115 ; Hart- 
 Maine, 356 ; Smith v. Velie, 60 N. Y. ford Bank v. Waterman, 26 Conn. 324 ; 
 106 ; Hastie v. Aiken, 67 Ala. 313. Bossard u.White, 9 Rich. Eq. 483 ; Davis 
 
 * Bishop Stat. Crimes, § 261 n ; Peo- v. Gotten, 2 Jones Eq. 430 ; Reading v. 
 
 ria t). Gordon, 82 111. 435 ; Underbill w. Reading, 1 Halst. 186; Williams ».' 
 
 Mobile Fire Dept. Ins, Co. 67 Ala. 45 ; Pomeroy Coal Co. 37 Ohio State, 583, 
 
 Milne's Appeal, 3 Out. Pa. 483 ; Hun- 589 ; Peak v. Buck, 3 Baxter, 71. 
 
 552 
 
CHAP. LIII.] STATUTE OP LIMITATIONS. § 1360 
 
 § 1358. Praudulent Concealment. — Equity, under its juris- 
 diction to suppress frauds,^ will in proper circumstances 
 restrain the party from setting up the statute, or will hold its 
 running to commence only after knowledge, or will postpone 
 its operation, or otherwise deal with it, in such manner and 
 to such extent as equitable principles require, so that the 
 other party shall not be defrauded ; and some of the statutes 
 in terms run only from the time when a fraudulently con- 
 cealed right becomes known to the person suing.^ This 
 equitable rule is now, in England, applied likewise by com- 
 mand of a statute in the courts of law,^ and it is believed to 
 be so also in some of our States.* 
 
 §1359. Renewed Promise. — When, either in fact or by 
 operation of law,^ the promise in a contract has been by the 
 party renewed, the statute begins to run against this new 
 promise only from the time when an action upon it can be 
 maintained. This doctrine is of wide effect ; and, as it stands 
 in these general terms, is unquestioned. Yet the decisions 
 upon some of its applications are quite discordant. To fol- 
 low, at least, the better opinion, — 
 
 § 1360. Promise after Statutory Bar — Before — (Nature of 
 Bar). — In another connection^ we saw that, when the bar 
 has become complete by a full lapse of the statutory time, it 
 oper4,tes differently from the party's release, where a renewal 
 of the promise does not revive the obligation unless a fresh 
 consideration is added thereto.'' The statutory bar is the 
 law's tender to the defendant of a benefit, which he may ac- 
 
 1 Compare with ante, § 1237. v. Aultmaii, 30 Kan. 181 ; Torrence v. 
 
 2 Gibbs V. Gnild, 8 Q. B. D. 296 ; Alexander, 85 N. C. 143 ; Conner v. 
 Haymore v. Yadkin Commissioners, 85 Goodman, 104 111. 365 ; Harman v. 
 N. C. 268 ; Biggs v. Lexington, &c. Rail- Looker, 73 Misso. 622 ; Yniestra v. 
 road, 79 Ky. 470; Duffitt v. Tuhan, 28 Tarleton, 67 Ala. 126; Harrell v. Kelly, 
 Kan. 292 ; Ossipee v. Grant, 59 N. H. 2 McCord, 426 ; Wilcox v. Jackson, 57 
 70 ; Somerset Freeholders v. Veghte, 15 Iowa, 278. 
 
 Vroom, 509 ; Clews v. Traer, 57 Iowa, ^ Gibbs v. Guild, supra. 
 
 459; Reed v. Minell, 30 Ala, 61 ; Pen- * Ante, § 732, 1348. 
 
 dergrast u. Foley, 8 Ga. I ; Walker v. ^ Moore y. Bank of Columbia, 6 Pet. 
 
 Walkeri 25 6a. 76 ; Frankfort Bank v. 86 ; Bell v. Morrison, 1 Pet. 351. 
 
 Markley, 1 Dana, 373 ; Underbill v. Mo- " Ante, § 95. 
 
 bile Fire Dept. Ins. Co. 67 Ala. 45 ; Con- ' Ante, § 99. 
 
 noly V. Hammond, 58 Texas, 1 1 ; Frey 
 
 553 
 
§ 1362 TIME AND PLACE. [BOOK IV. 
 
 cept or reject as he chooses ; ^ and, if he makes a new promise, 
 he thereby waives this benefit,^ and he is holden by virtue of 
 the old consideration.^ A fortiori, the same consequence fol- 
 lows a renewal of the promise during the running of the 
 statute.* It must be to the party himself or his agent, or to 
 one who is to communicate it to him ; ^ or probably, within a 
 doctrine heretofore explained,* it will suffice if made to any 
 person with the intent that the other shall act thereon.'^ 
 Moreover, — 
 
 § 1361. Promise created by Law. — For this purpose, a new 
 promise created by the law is equally effectual with an express 
 one.^ As to which, the only doubt is, under what circum- 
 stances the law will create a new promise. But it is abun- 
 dantly settled in authority, and is equally plain in reason, that 
 it will whenever there is a — 
 
 § 1862. Fresh Acknowledgment. — Under the rule that the 
 law creates a promise from one to pay to another whatever it 
 deems to be owing,^ if, at any time, a debtor makes to his 
 creditor a fresh acknowledgment of the debt, the law adds 
 thereto his promise to pay it ; and the statute commences a 
 fresh running from the time when an action is maintainable on 
 this new promise.^" But, contrary to various old cases which 
 
 1 Borders v. Mnrphy, 78 III. 81. ' For cases more or less pertinent 
 
 ^ Ante, § 791, 803, 806. see tJtz v. Utz, 34 La. An. 752; Smith 
 
 ' Ante, § 94-100; Norton v. Shep- r. Campbell, 5 Han-ing. Del. 380 ; Whit- 
 
 ard, 48 Conn. 141; McClintic «. Lay- ney «. Bigelow, 4 Pick. 110; St. John 
 
 man, 12 Bradw. 356 ; Abrahams v. v. Garrow, 4 Port. 223 ; Fort Scott v. 
 
 Swann, 18 W. Va. 274; Trnmball v. Hickman, 112 U. S. 1.50; Maxwell v. 
 
 Tilton, 1 Fost. N. H. 128 ; Bush v. Bar- Eeilly, 11 Lea, 307 ; Nashville v. Toney, 
 
 nard, 8 Johns. 407 ; Dean v. Hewit, 5 10 Lea, 643. 
 
 Wend. 257. 8 Ante, § 1359 ; Norton v. Shepard, 
 
 * Malone v. Searight, 8 Lea, 91 ; 48 Conn. 141, 142. 
 
 Hammond v. Smith, 33 Beav. 452, 10 » Ante, § 204. 
 
 Jur. N. 8. 117; Steel v. Steel, 2 Jones, w Walsh v. Mayer, 111 U. S. 31; 
 
 Pa. 64; Carlton v. Ludlow Woollen Bateman ti. Pinder, 3 Q. B. 574; Philips 
 
 Mill, 27 Vt. 496 ; Noyes v. Hall, 28 Vt. f.Philips, 3 Hare, 281, 299; Yea w.Foara- 
 
 645. ker, 2 Bur. 1099; Bucket t>. Church, 9 
 
 6 Kirby v. Mills, 78 N. C. 124 ; Par- Car. & P. 209 ; Lloyd i;. Maund, 2 T. R. 
 
 ker V. Shuford, 76 N. C. 219 ; Teessen 760, 762 ; Black v. Reybold, 3 Harring. 
 
 V. Camblin, 1 Bradw. 424 ; Bachman v. Del. 528 ; Porter v. Hill, 4 Greenl. 41 ; 
 
 Roller, 9 Baxter, 409; Fuqua v. Din- Ross u. Ross, 20 Ala. 105; Murray ». 
 
 widdie, 6 Lea, 645. Coster, 20 Johns. 576, 586 ; Elder v. 
 
 « Ante, § 1219-1221, 1227. Dyer, 26 Kan. 604 ; Palmer v. Gillespie, 
 554 
 
CHAP. LIII.] STATUTE OP LIMITATIONS. § 1364 
 
 have been overruled, the acknowledgment must be of a sort 
 on which the law can raise the new promise;^ as, for ex- 
 ample, that the debt remains due.^ The later English and 
 some of the American statutes, moreover, reject the acknowl- 
 edgment or fresh promise unless it is in writing, but they do 
 not otherwise modify the law of the subject.^ A particular 
 form of acknowledgment is — 
 
 § 1363. Part Payment. — If a debtor paj's interest, or pays 
 a part of the debt under circumstances involving an admis- 
 sion of the whole, he thereby makes the acknowledgment 
 which takes the remainder out of the previously-running 
 statute.* But a simple payment of a given sum is no ac- 
 knowledgment that more is due.^ Nor is a payment sufficient 
 though accompanied by a recognition, from one not author- 
 ized thus to bind the party.® Nor, where a Sunday contract 
 would be invalid, will a payment implying a promise made 
 on that day suffice ; ^ for, in such a case, the law will not 
 impose on one an undertaking which it forbids him to assume 
 in fact. 
 
 § 1364. Conditional. — A conditional promise is as good for 
 
 HNom's, Pa. 340; Hannah w. Hawkins, 811,7Bing. 163; Dickenson w. Hatfield, 
 
 5 Lea, 240 ; Pope v. Andrews, 90 N. C. 5 Car. & P. 46. 
 
 401. * Walker v. Wait, 50 Vt. 668 ; Cu- 
 
 1 Pardyy.Anstin,3 Wend. 187, 190; cnllu v. Hernandez, 103 U. S. 105; 
 
 Biggs V. Koberts, 85 N. C. 151 ; Clem- United States v. Wilder, 13 Wal. 254; 
 
 entson v. Williams, 8 Cranch, 72 ; Engmann v. Immel, 59 Wis. 249 ; Click 
 
 Wetzell ». Bussard, 11 Wheat. 309; «. Crist, 37 Ohio State, 388 ; Kaufman 
 
 Biickmaster v. Russell, 10 C. B. N. s. v. Broughton, 31 Ohio State, 424; Bux- 
 
 745, 8 Jur. N. 8. 155 ; Fuqua v. Din- ton v. Edwards, 134 Mass. 567 ; Mc- 
 
 widdie, 6 Lea, 645, 648 ; Green v. Gehee v. Greer, 7 Port. 537 ; Egery v. 
 
 Humphreys, 26 Ch. D. 474. The Ian- Decrew, 53 Maine, 392 ; Barron v. Ken- 
 
 guage of some of the cases seems to im- nedy, 17 Cal. 574; Sanford v. Hayes, 19 
 
 ply that the acknowledgment must be Conn. 591 ; Whipple v. Stevens, 2 Post, 
 
 of a sort indicating the defendant's ac^aai N. H. 219; Davis v. Coleman, 7 Ire. 
 
 intention, OT promise in fact, to Tpa.y. But 424; Ilsley v. Jewett, 2 Met. 168; 
 
 an examination of our chapter on ere- Cocker v. Cocker, 2 Misso. Ap. 451 ; 
 
 ated contracts, ante, § 181 et seq., will Hale v. Morse, 49 Conn. 481. 
 satisfy any careful reader that such can- ^ Lock v. Wilson, 9 Heisk. 784, 10 
 
 not be the rule Heisk. 441; Harris w. Howard, 56 Vt. 695. 
 
 '■^ Bangs V. Hall, 2 Pick. 368 ; Perley " Lewis v. Ford, 67 Ala. 143 ; Butler 
 
 V. Little, 3 Greenl. 97 ; Deshon v. Eaton, ». Price, 110 Mass. 97 ; Littlefield v. Lit- 
 
 4 Greenl. 413 ; Weston v. Hodgkins, 136 tlefield, 91 N. Y. 203. 
 Mass. 326, 327. ' Clapp v. Hale, 112 Mass. 368; 
 
 » Haydon >■. Williams, 4 Moore & P. Whitcher v. McConnell, 59 N. H. 470. 
 
 556 
 
§ 1367 TIME AND PLACE. [BOOK IV. 
 
 the purpose under contemplation as any other ; but the party, 
 to recover on it, must prove the fulfilment of the condition.^ 
 
 § 1365. Against whom. — Statutes of limitation do not run 
 against a State or the United States, unless by express words, 
 which they do not ordinarily contain.^ But it is believed 
 that municipal corporations are not within the reason of this 
 rule, so they cannot avail themselves of it, though the de- 
 cisions to this proposition are not quite unanimous.^ 
 
 § 1366. In Conclusion. — Something further on this subject 
 will appear in the next chapter.* The foregoing expositions 
 relate chiefly to those principles of the common law which 
 the courts have woven into the interpretations of the statutes. 
 Minuter details are omitted. It would not be within the 
 plan of this work to expound the various exceptional clauses, 
 or enter otherwise into discussions of fluctuating terms. 
 
 § 1367. The Doctrine of this Chapter restated. 
 
 Natural justice dictates that differences and claims between 
 parties shall not be forever open to litigation. And the un- 
 written law has so pronounced, but not by rules sufficiently 
 exact for all practical purposes. Thereupon statutes have 
 stepped in, and spoken with a voice more distinct. The in- 
 terpretations of these statutes are a woof of the common law, 
 driven by the judicial hand through the warp of the written 
 provisions. So it is with all statutory interpretation. In the 
 present instance, the courts have wavered a good deal in the 
 particulars ; and much discord has appeared in the weaving 
 of a fabric which, even now, is neither quite uniform nor free 
 from minor defects. 
 
 1 Tanner v. Smart, 6 B. & C. Coal, &c. Co. 18 Fed. Rep. 273, 5 Mc- 
 603 ; Stowell v. Fowler, 59 N. H. Crary, 563. 
 
 585 ; Meyerhoff v. Froehllch, 4 C. P. ^ Bishop Stat. Crimes, § 103 a ; 
 
 !>• 63. Gaines v. Hot Spring, 39 Ark. 262; 
 
 2 Bishop Stat. Crimes, § 103, 142, Coleman v. Thurmond, 56 Texas, 514; 
 note; Swann v. Lindsey, 70 Ala. 507, Forsyth v. Wheeling, 19 W. Va. 318; 
 519 ; United States v. Spiel, 3 McCrary, Oxford v. Columbia, 38 Ohio State, 87. 
 107; United States v. Southern Colo. < Post, § 1409-1411. 
 
 - 556 
 
GHAP. LIV.] UNDEB CONFLICTING LAWS. § 1370 
 
 CHAPTER LIV. 
 
 THE CONTEACT AS AFFECTED BY THE CONFLICTENG LAWS 
 OF DIFPBEENT JUKISDICTIONS. 
 
 § 1368. Introduction. 
 
 1369-1371. lu General. 
 
 1372-1389. Inception of Contract. 
 
 1390-1398. Interpretation and Effect. 
 
 1399-1402. Discharge. 
 
 1403-1411. Procedure for Enforcement. 
 
 1412. Doctrine of Chapter restated. 
 
 § 1368. How Chapter divided. — We shall consider, I. The 
 Doctrine in General ; II. The Inception of the Contract ; 
 III. The Interpretation and Effect of the Contract ; IV. Its 
 Discharge ; V. The Procedure for its Enforcement. 
 
 I. The Doctrine in General, 
 
 § 1369. Nature of Topic. — This chapter pertains to what, 
 in legal language, is commonly termed the conflict of laws, 
 or private international law. The entire subject is of wide 
 extent, and within it are many disputed, perhaps difficult, 
 questions. But of the part which concerns contracts, the 
 leading rules are simple, and they may be shortly stated. 
 Some of their secondary applications are not so plain, but 
 our contracted space will not permit us to irace them far in 
 this chapter. 
 
 § 1370. International Law — Comity. — Among the neces- 
 sities of our being is the law of nations, regulating the inter- 
 course of the various sovereigns, sovereignties, and their 
 subjects with one another. It constitutes a part of the 
 
 557 
 
§ 1371 TIME AND PLACE. [BOOK IV. 
 
 unwritten law of every people, and even the domestic statutes 
 are interpreted as limited and controlled thereby.^ One of 
 the doctrines of this law is ordinarily termed the comity of 
 nations, an expression objected to by some as not quite accu- 
 rate, yet by others fully approved ; ^ the meaning whereof is, 
 that the tribunals of every nation will, of " comity," where no 
 domestic considerations forbid, give effect to the rights which 
 litigants have acquired under the laws of other nations.^ 
 Whence the following — 
 
 § 1371. Resulting Doctrines — (Lez Loci — Lex Fori). — A 
 court, called upon to enforce a contract made in another State 
 or country, tests its validity by the foreign law except where 
 domestic policy forbids.* Not that in any proper sense the 
 foreign law controls the tribunal ; but, being duly proved,^ 
 it is, by that portion of its own law which is termed inter- 
 ■ national, made domestic for the purpose.^ The discharge of 
 a contract, if by the party, depends on the law of the place 
 where given ; if, by the act of the law, there must also be a 
 jurisdiction over the question, and this is commonly, but not 
 always exclusively, in the place whei'e the contract was made 
 or to be performed.'^ But the procedure to enforce a right — 
 in other words, the remedy — is no part of the right itself ; 
 without wrong to litigants, it may be varied from time to 
 time even after the cause of action has arisen ;8 for which 
 reason, and because a court cannot substitute a foreign prac- 
 tice for its own, it, with whatever else depends on it, takes 
 the same forms as though the cause were domestic.^ Where 
 
 * 1 Bishop Crini. Law, § 14, 124; Collins Iron Co. v. Burkam, 10 Mich. 
 Bishop 'Written Laws, § 141 ; Austria 283 ; Evans v. Kittrell, 33 Ala. 449 ; 
 V. Day, 2 Gif. 628, 7 Jur. N. s. 483, Bank of Augusta v. Earle, 13 Pet. 519. 
 affirmed3DeG. F. &J.217, 7 Jur.N. s. ^ Crawford «. Witten, LofFt, 154 ; 
 639. Male v. Roberts, 3 Esp. 163. 
 
 2 Story Conf. Laws, § 28-38. « 1 Bishop Mar. & Div. § 367 ; Cald- 
 
 8 1 Bishop Mar. & Div. § 361, 362 ; well v. Vanvlissengen, 9 Hare, 415, 425, 
 
 2 lb. § 163 a, note, 176 ; Diamond 16 Jur. 115. 
 Match Co. V. Powers, 51 Mich. 145; ' Post, § 1399-1402. 
 
 Lewis V. Woodfolk, 2 Baxter, 25 ; Don- 8 Bishop Written Laws, § 175, 176. 
 
 ovan K. Pitcher, 53 Ala. 411; Stevens ' Ex parte Melbourn, Law Eep. 6 
 
 V. Brown, 20 W. Va. 450 ; Zipcey v. Ch. Ap. 64, 69 ; Trimbey v. Vignier, 1 
 
 Thompson, 1 Gray, 243, 245. Bing. N. C. 151, 158; Whittemore v. 
 
 * Evans v. Anderson, 78 111. 558 ; Adams, 2 Cow. 626 ; Burchard v. Dnn- 
 
 558 
 
2 
 
 CHAP. LIV.] UNDER CONFLICTING LAWS. § 1374 
 
 a contract is made in one country to be performed in another, 
 the rule of following the intent of the parties ^ commonly 
 requires it to be interpreted after the law of the latter.^ 
 These propositions are subject to exceptions and explanations 
 which, together with minuter statements of the doctrine 
 itself, will now be given. 
 
 II. The Inception of the Contract. 
 
 § 1372. Common Rule. — The rule on this subject is com- 
 monly stated to be, that a contract valid where made is valid 
 everywhere, and one invalid where made is everywhere in- 
 valid.3 But these propositions should be separately ©•xam- 
 ined ; thus, — 
 
 § 1373. Valid where made : — 
 
 Valid everywhere. — Subject to exceptions derivable from 
 the reasoning of the last sub-title, a contract good in the State 
 or country of its inception is so also in every other the courts 
 of which are called upon to enforce it, even though it would 
 be void had it been entered into under the same forms in the 
 latter locality.* In this way, the domestic tribunal gives 
 effect to rights which had accrued under the foreign law.^ 
 For example, — 
 
 § 1374. Usury. — The rates of interest, and the conse- 
 quence of overstepping them, vary in our States. Thereupon, 
 if a contract reserving interest is valid ia a State where made, 
 it will be enforced by the courts of another State wherein, 
 had it been there entered into, it would be void for usury .^ 
 So, — 
 
 bar, 82 III. 450; Scoville v. Canfield, U 389; Stebbins v. Leowolf, 3 Cush. 137 ; 
 
 Johns. 338, 340. Blanchard v. Eussell, 13 Mass. 1, 4 ; In 
 
 1 Ante, § 380. re Murray, 3 Bankr. Reg. 765 ; Adams 
 
 2 Scudder v. Union Nat. Banfc, 91 v. Gay, 19 Vt. 358; Crosby u. Bergrer, 
 U. S. 406 ; Bell v. Brnen, 1 How. U. S. 3 Edw. Ch. 538 ; Groves v. Nutt, 13 La. 
 169. An. 117; Huey's Appeal, 1 Grant, Pa. 
 
 = 2 Pars. Con. 570. This is also the 51 ; Fergusson v. Fyffe, 8 CI. & F. 121 ; 
 
 formula of the books in regard to mar- Cubbedge v. Napier, 62 Ala. 518; Fou- 
 
 riage. 1 Bishop Mar. & Div. § 355, 370, bert v. Turst, 1 Bro. P. C. 129 ; Lauten 
 
 390. V. Rowan, 59 N. H. 215. 
 
 * Greenwood v. Curtis, 6 Mass. 358; « Ante, § 1370, 1371. 
 Carnegie v. Morrison, 2 Met. 381, 387, ' Philadelphia Loan Co. v. Towner, 
 
 559 
 
§1377 
 
 TIME AND PLACE. 
 
 [book IV. 
 
 § 1375. Written or Oral. — If, in a State where an oral con- 
 tract is made, it is good, it will be enforced in another State 
 or country the statutes whereof require the like contract to 
 be in writing.^ Again, — 
 
 § 1376. Sunday Contract. — A Sunday contract, good by 
 the law of the State where made, will be enforced in an- 
 other State the statutes of which render the like bargaining 
 invalid.2 
 
 § 1377. Distinction. — There is a plain distinction between 
 the simple enforcement in our courts of a foreign contract 
 valid at home, notwithstanding it would have been invalid if 
 made here, and permitting the parties to such a contract to 
 come upon our soil and here do the thing which by our law 
 is wrongful. No government will or should suffer this. On 
 the other hand, the laws of every civilized country bind all 
 persons, except foreign sovereigns and their agents, coming 
 and being within its territorial jurisdiction.^ Out of this dis- 
 tinction grow some apparent — 
 
 13 Conn. 249 ; De Wolf v. Johnson, 10 
 Wheat. 367 ; Commercial Bank v. King, 
 2 La. An. 457 ; Eobb v. Halsey, 1 1 Sm. 
 &M. 140; Davis v. Garr, 2 Selden, 124; 
 Levy V. Levy, 28 Smith, Pa. 507 ; Scott 
 II. Perlee, 39 Ohio State, 63, 67. 
 
 1 Story Conf. Laws, § 262 ; Scudder 
 ». tlnion National Bank, 91 U. S. 406 ; 
 Forward v. Harris, 30 Barb. 338 ; Den- 
 ny V. Williams, 5 Allen, 1 ; Carrington 
 V. Brents, 1 McLean, 167. Compare 
 with post, § 1384. This doctrine is be- 
 lieved to apply as well to contracts void- 
 able in the State or country in which 
 their enforcement is sought as to those 
 which are there void. Indeed, the bare 
 statement would be startling, that we 
 will recognize the validity of a foreign 
 contract good at home, though our stat- 
 utes pronounce the same sort of domes- 
 tic contract void ; yet, if our laws de- 
 clare it voidable, we will hold it to be 
 void. But an English court has actually 
 taken this distinction ; adjudging to be 
 void such a contract, the terms of which 
 were within the fourth section of the 
 
 560 
 
 English Statute of Frauds (ante, § 1232) ; 
 while admitting that, if it were void in- 
 stead of voidable by the English law, it 
 would be tested by the foreign, and ac- 
 cepted in England as good. The reason 
 assigned was, that this section of the 
 Statute of Frauds pertains to the pro- 
 cedure (ante, § 1371), consequently is 
 controlling as well in the case of a for- 
 eign as of a domestic contract. Leroux 
 V. Brown, 12 C. B. 801, 16 Jur. 1021. 
 It is submitted that, on a question of 
 this sort, the reason of the distinction 
 between law and procedure should gov- 
 ern rather than the mere formula of the 
 doctrine ; and, within the reason (ante, 
 § 1371), as applied to the particular 
 question, this section refers only to the 
 domestic contract, and does not forbid 
 the giving of effect to the right acquired 
 under the foreign law. 
 
 2 Swann v. Swann, 21 Fed. Eep. 299, 
 See Gauthier v. Cole, 17 Fed. Rep. 
 716. 
 
 8 1 Bishop Crim. Law, § 124-134; 
 Bishop Written Laws, § 141. 
 
CHAP. LIV.] UNDER CONFLICTING LAWS. § 1380 
 
 § 1378. Bzceptions to the above Rule. — The exceptions 
 are a little broader than the reason just stated indicates, it 
 not quite covering the entire ground. They are stated to be 
 " that," to quote from Fowler, J., " contracts which are in 
 evasion or fraud of the laws of a country, or of the rights or 
 duties of its subjects ; which are against good morals, or 
 against religion, or against public rights ; and those opposed 
 to the national policy or national institutions ; are deemed 
 nullities in every country affected by such considerations, 
 though they may be valid by the laws of the place where 
 they are made." ^ For it is little else than repeating what 
 has just been said to add, that no government will or should 
 allow the welfare of its own subjects, or its own policy or in- 
 terests, to be subverted by foreign laws.^ Hence, — 
 
 §1379. Evading. — In an ordinary contracting, contrary in 
 some degree to the rule in marriage,^ courts will not permit 
 the laws under which they sit to be intentionally evaded or 
 overridden. If, therefore, parties in one State make a con- 
 tract which in its nature must be performed in another, — or 
 which, in fact, they mean shall be so performed, as shown by 
 its terms, or otherwise, — the tribunals of the latter locality 
 will not give it effect, unless it is valid as tested by their own 
 domestic laws.* For example, — 
 
 § 1380. Smuggling Contract. — A contract made abroad, to 
 smuggle dutiable goods into the United States, will be treated 
 as void by our courts.^ 
 
 1 Bliss V. Brainard, 41 N. H. 256, v. Livingstone, 3 Macq. H. L. Cas. 
 261 ; copying, in substance, from Story 497. 
 
 Conf. Laws, § 244. ' 1 Bishop Mar. & Div. § 355-389 ; 
 
 2 2 Bishop Mar. Women, § 577 ; 2 Bishop Mar. Women, § 579 et seq. 
 Commonwealth v. Aves, 18 Pick. 193 ; * Lewis v. Headley, 36 111. 433 ; Car- 
 Smith V. Godfrey, 8 Fost. N. H. 379 ; neal v. Day, Litt. Sel. Cas. 492 ; Maguire 
 Davis V. Bronson, 6 Iowa, 410; Phin- v. Pingree, 30 Maine, 508; Kanaga v. 
 ney v. Baldwin, 16 111. 108; Chewning Taylor, 7 Ohio State, 134, 142; Thomp- 
 V. Johnson, 5 La. An. 678 ; Greenwood son v. Ketcham, 4 Johns. 285 ; McCand- 
 V. Curtis, 6 Mass. 358, 377 ; Windsor v. lish v. Cruger, 2 Bay, 377 ; Jewell v. 
 Jacob, 2 Tyler, 192 ; Donovan v. Pitcher, Wright, 30 N. Y. 259 ; Touro v. Cassin, 
 53 Ala. 411 ; RousiUon v. Rousillon, 14 1 Nott & McC. 173; Strieker v. Tink- 
 Ch. D. 351 ; Hope v. Hope, 8 De G. M. ham, 35 Ga. 176 ; Wooten v. Miller, 7 
 & G. 731, 3 Jur. N. 8. 454; Union, &c. Sm. & M. 380. 
 
 Co. V. Erie Railway, 8 Vroom, 23 ; ^ story Conf. Laws, § 246, referring 
 
 Klinck V. Price, 4 W. Va. 4 ; Fenton to Holman v. Johnson, Cowp. 341 ; 
 36 561 
 
§ 1383 TIME AND PLACE, [BOOK IV. 
 
 § 1381. Champerty. — If, in France where champerty is 
 permitted, an American lawyer bargains to carry on a suit in 
 one of our States wherein it is unlawful, to receive for his 
 compensation one half of what he gets, the courts of such 
 State will give no effect to the contract.^ Still, — 
 
 § 1382. Place of Performance. — The mere fact that the 
 place meant for the performance of a contract is in another 
 State does not render it invalid in the latter. It is so if vio- 
 lative of the law or policy there prevailing, otherwise it is 
 good.2 
 
 § 1383. Invalid where made : — 
 
 Invalid everywhere. — Since a contract, to be of any effect, 
 must have the mutual consent of the parties ^ and the ap- 
 proval of the law,* it follows that, whatever form of contract- 
 ing persons enter into, if the law of the place where ihey do 
 it pronounces it not to be a mutual consent, or if otherwise it 
 holds such act to be void, the courts of another State or coun- 
 try cannot afterward adjudge the thing thus ineffectually 
 done to be a contract, however they might regard it had it 
 transpired within their own jurisdiction. Hence the doctrine 
 that a contract void in the State or country where made is 
 void everywhere.^ If there are cases in apparent exception 
 to this rule, they are not really so ; for, from the nature of 
 the rule, it, unlike its counterpart,® does not admit of excep- 
 tions.'^ Probably this rule would have no relation to a con- 
 Armstrong V. Toler, U Wheat. 258; ^ Ante, § 1372. 
 Cambioso v. Maffet, 2 Wash. C. C. 98. « Ante, § 1373, 1378. 
 
 1 Grell !). Levy, 16 C. B, N. s. 73, 10 ' Bliss w.Brainard, 41 N. H. 256,261; 
 Jur. N. s. 210. Dunscomb v. Bunker, 2 Met. 8 ; Palmer 
 
 2 Williams v. Carr, 80 N. C. 294; v. Yarrington, 1 Ohio State, 253,261; 
 Campbell v. Crampton, 2 Fed. Rep. 417 ; Shelton v. Marshall, 16 Texas, 344, 353 ; 
 Maine v. Butler, 130 Mass. 196, War- Morris Run Coal Co. v. Barclay Coal 
 ner r. Jaffray, 96 N. Y. 248; Flagg v. Co. 18 Smith, Pa. 173; Ford ». Buck- 
 Baldwin, 11 Stew. Ch. 219; Davis v. eye State Ins. Co. 6 Bush, 133; Moore 
 Trevanion, 2 Dowl. & L. 743, 9 Jur. v. Clopton, 22 Ark. 125 ; McAllister v. 
 492; Davis i'. Bronson, 6 Iowa, 410; Smith, 17 111. 028; Titus v. Scantling, 
 Fitzsimons v. Guanahani, 16 S. C. 192; 4 Blackf. 89; tearl v. Hansborough, 9 
 In re Paige, &c. Lumber Co. 31 Minn. Humph. 426 ; Thompson v. Kctcham, 
 136; Carnahan w. Western Union Tel. 8 Johns. 190; Dacosta «. Davis, 4 Zab. 
 Co. 89 Ind. 626. 319 ; Kennedy v. Cochrane, 65 Maine, 
 
 » Ante, § 313. 594. 
 
 * Ante, § 469-490. 
 
 562 
 
CHAP. LIV.] UNDER CONFLICTING LAWS. § 1886 
 
 tracting done at a place wherein, if we can imagine it, there 
 is no law.i To illustrate, — 
 
 § 1384. Void as Verbal. — If, where an agreement is made, 
 it is void by the Statute of Frauds because not in writing, 
 it will be so also in another State by the differing laws 
 whereof it would be good had it been entered into there.^ 
 And, — 
 
 § 1385. Toreign Indorsement. — Where a bill of exchange 
 has been indorsed abroad, in a form which would pass the 
 title if it had been done here, yet inadequate by the foreign 
 law, the holder cannot maintain upon it a suit in our courts.* 
 Again, — 
 
 § 1386. Unstamped — (Revenue Laws). — A contract void 
 in the country where made, because not stamped, is void also 
 in every other in which its enforcement is sought.* At the 
 same time, the statutes requiring stamps are revenue laws ; 
 and we often read that the courts of one country will not 
 recognize the revenue laws of another.^ The true distinction 
 as to which appears to be, that, though parties bargain in one 
 country to violate the revenue laws of another, yet, if the 
 thing to be done is not otherwise immoral or against public 
 policy, the agreement will be upheld in the former country .^ 
 But, whenever a contract is void in the country of its incep- 
 tion, though only from the want of the stamp required by the 
 revenue laws, it will be so also in every other.^ Another ex- 
 pression of one branch of this doctrine is, that, — 
 
 ^ 1 Bishop Crira. Law, § 5, 7, 9-11. v. Pruet, 27 Ga. 243 ; Toung v. Harris, 
 
 2 AUshouse v. Ramsay, 6 Whart. 331. U B. Monr. 556. 
 Compare with ante, § 1375. i Alves v. Hodgson, 7 T. R. 241, 2 
 
 ' Trimbey v. Vignier, 1 Bing. N. C. Esp. 528 ; Bristow v. Sequeville, 5 Exch. 
 
 151, 4 Moore & S. 695, 6 Car. & P. 25. 275 ; Clegg v. Levy, 3 Camp. 166. See 
 
 See Roosa v. Crist, 17 111. 450 ; Woods Wynne v. Jackson, 2 Riiss. 351 ; Skin- 
 
 V. Ridley, 11 Humph. 194 ; Hirschfeld ner v. Tinker, 34 Barb. 333. 
 V. Smith, Law Rep. 1 C. P. 340 ; Levy 5 Jyey v. Lalland, 42 Missis. 444 ; 
 
 V. Levy, 28 Smith, Pa. 507 ; Dundas v. Kohn v. The Renaisance, 5 La. An. 25. 
 Bowler, 3 McLean, 397 ; Carlisle v. « 2 Par?. Con. 5th ed. 754 ; 2 Chit. 
 
 Chambers, 4 Bush, 268; Trabue v. Con. 11th Am. ed. 987; Merchants 
 
 Short, 18 La. An. 257; Dow u. Rowell, Bank v. Spalding, 5 Selden, 53, 63; 
 
 12 N. H. 49 ; Lee v. Selleck, 33 N. Y. Kohn v. The Renaisance, supra ; Ar- 
 
 615 ; Hatcher v. McMorine, 4 Dev. 122 ; mendiaz v. Serna, 40 Texas, 291. 
 King V. Doolittle, 1 Head, 77 ; Stanford ' Alves v. Hodgson, supra, at p. 243 
 
 of7T. R. 
 
 563 
 
§ 1388 TIME ANi) PLACE. [BOOK IV. 
 
 § 1387. Valid here, against Foreign Law. — Looking into the 
 conflicting and somewhat indistinct adjudications, it is be- 
 lieved that we may derive from them, and from the reasons 
 on which they proceed, the following. Within limits not 
 well defined, yet perhaps embracing most cases where the 
 thing is not malum in se, and is not contrary to natural right, 
 our courts will enforce a contract made here to do abroad 
 what violates the law of the foreign country, if in harmony 
 with our own law.^ Still, in just principle, this or any other 
 like doctrine derived from international law,^ must be subor- 
 dinate to the domestic rule concerning contracts to do what 
 the law forbids ; ^ which law is, as to the present question, 
 that of the foreign country. Moreover, in just principle, it 
 does not seem quite commendable for our tribunals to enforce 
 bargains to do, within the territory of a foreign friendly power, 
 acts violative of any law there prevailing, however innocent 
 as judged by our own law or by natural right. To continue 
 our illustrations, — 
 
 § 1888. Usury. — Parties, contracting in a State whose laws 
 make void a promise to pay more than six per cent interest, 
 may there validly bargain for more, payable in another State 
 where the higher rate is lawful. Such a contract, not in- 
 tended to evade the law of the place of its inception, is good 
 in both States.* Beyond this, if the agreed interest is lawful 
 in the State where the bargain is entered into, the courts of 
 this State, it appears, will enforce the contract, though the 
 
 1 I do not think that any very accu- ^ Ante, § 583, 594, 595. 
 
 rate defining of this doctrine, simply * Junction Railroad y. Ashland Bank, 
 
 upon the authorities, is possible. The 12 Wal. 226 ; Parham v. Pulliam, 5 
 
 reader may consult, besides the cases Coldw. 497; Martin v. Martin, 1 Sm. 
 
 cited to the last section and the next, & M. 176; Senter v. Bowman, 5 Heisk. 
 
 the following: Merchants Bank ti. 14, 16; Duncan v. Helm, 22 La. An. 
 
 Spalding, 5 Selden, 53 ; Pearl u. Hans- 418; Miller v. Tiffany, 1 Wal. 298; 
 
 borough, 9 Hnmph. 426; De Wutz v. Pratt v. Adams, 7 Paige, 615; Roberts 
 
 Hendricks, 9 Moore, 586, 2 Bing. 314; v. McNeely, 7 Jones, N. C. 506; Smith 
 
 Smith V. Marconnay, Peake Ad. Cas. ». Muncie National Bank, 29 Ind. 158; 
 
 81; Jacobs v. Credit Lyonnais, 12 Q. Arnold u. Potter, 22 Iowa, 194; Ken- 
 
 B. D. 589 ; Ormes v. Dauchy, 82 N. Y. nedy v. Knight, 21 Wis. 340 ; Bobb v. 
 
 443; Adams f.Clutterbnck, 10 Q.B.D. Halsey, 11 Sm. & M. 140; National 
 
 403 ; Hunt v. Jones, 12 R. I. 265 ; Fitch Bank v. Smoot, 2 MacAr. 371 ; Cockle 
 
 V. Remer, 1 Flip. 15. v. Flack, 93 U. S. 344. 
 
 2 Ante, § 1370, 1371. 
 
 564 
 
CHAP. LJV.] UNDEB CONFLICTING LAWS. § 1390 
 
 payment is by its terms to transpire in another State where 
 it is unlawful.^ 
 
 § 1389. What the Place of Contract : — 
 
 Partly in each of Two States. — Where the preliminaries of 
 a contract and its formal execution have occurred partly in 
 each of two or more States, its place of making is, as a sort 
 of general rule, that at which, by delivery or otherwise, it 
 first becomes a contract.^ For example, since ordinarily it is 
 deUvery which gives effect to the writing,^ a contract is com- 
 monly deemed to have been made in the State where the 
 delivery took place, without reference to where it was writ- 
 ten and signed.* But, in many cases, this rule is inadequate, 
 or its pointings are not readily understood ; then the court 
 will look into the preliminaries, the surroundings of the par- 
 ties, their domicil, the words, the nature of the contracting, 
 and the like, from which combined whole it will deduce the 
 result.^ No minor rules on this question could be of much 
 practical help. 
 
 III. The Interpretation and Effect of the Contract. 
 
 § 1390. The Rule. — The interpretation and consequent 
 effect of a contract are determined by the law of the State or 
 
 1 Thornton v. Dean, 19 S. C. 583; 14 B. Monr. 556; Bell v. Packard, 69 
 
 Pancoast v. Travellers Ins. Co. 79 Ind. Maine, 105. 
 
 172. See Richardson v. Brown, 9 Bax- * The reports are full of illustrative 
 
 ter, 242 ; Lindsay v. Hill, 66 Maine, cases ; for example, Campbell v. Cramp- 
 
 212; Sheldon v. Haxtun, 91 N. Y. ton, 18 Blatch. 150; Backhouse w. Sel- 
 
 124. den, 29 Grat. 581 ; Home v. Ronquette, 
 
 * Northampton Live-stock Ins. Co. v. 3 Q. B. D. 514 ; Fuller v. Leet, 59 N. H. 
 Tuttle, U Vroom, 476 ; Providence, &c. 163; Bush v. Nance, 61 Missis. 237; 
 Bank ». Frost, 14 Blatch. 233 ; Waldron Sherley v. McCormick, 135 Mass. 126 ; 
 !). Ritchings, 9 Abb. Pr. n. 8. 359 ; North- Shattuck v. Mutual Life Ins. Co. 4 Clif. 
 western Mut. Life Ins. Co. v. Elliott, 7 598; Mills v. Wilson, 7 Norris, Pa. 118; 
 Saw. 17. Webber v. Howe, 36 Mich. 150; Rinds- 
 
 3 Ante, § 113, 349. kopf u. De Ruyter, 39 Mich. 1 ; Thomp- 
 
 * Cromwell v. Royal Canadian Ins. son v. Edwards, 85 Ind. 414 ; Mack v. 
 Co. 49 Md. 366 ; Ames v. McCamber, Lee, 13 R. I. 293 ; Frierson v. Galbraith, 
 124 Mass. 85; Milliken v. Pratt, 125 12 Lea, 129; Patterson v. Carrell, 60 
 Mass. 374; Overton v. Bolton, 9 Heisk. Ind. 128; Lewis u. McCabe, 49 Conn. 
 762; Hart w. Wills, 52 Iowa, 56 ; Gay 141; Commercial Bank u. Varnum, 49 
 V. Bainey, 89 111. 221 ; Young v. Harris, N. Y. 269. 
 
 665 
 
§ 1393 TIME AND PLACE. [BOOK IV. 
 
 country wherein, at the time of its making,^ the parties intend 
 it to be performed ; as evidenced by its tenns,^ by its nature,* 
 by the surroundings, or anything else permissible to be 
 shown.* This rule applies equally to contracts entered into 
 in a locality other than that of the intended performance,^ 
 and in the same locality.® Further to explain, — 
 
 § 1391. Place of Making. — In the absence of anything in- 
 dicating the contrary, the place of the making of a contract 
 is presumptively that of its performance, by the law whereof 
 it is to be interpreted and its effect defined.^ 
 
 § 1392. Intended Performance elsewhere. — Whether mere 
 oral evidence, where the writing is silent, is admissible to 
 rebut this presumption, and show an intent to perform in 
 another State or country, is a question perhaps not absolutely 
 settled. In reason, and within a principle disclosed in an- 
 other chapter,* as such evidence does not contradict the terms 
 of such contract, and is a help to the real meaning,® it would 
 seem to be admissible ; and this is believed to be the better 
 doctrine in authority .^^ Further as to the — 
 
 § 1393. Place of Performance. — On a promise to pay money, 
 the place at which the payment is to be made is that of the 
 
 1 HoUomon v. Hollomon, 12 La. An. 6 Benners v. Clemens, 8 Smith, Pa. 
 607. 24; Golson v. Ebert, 52 Misso. 260; 
 
 2 Goddin v. Shipley, 7 B. Monr. 575 ; Griffin v. Inman, 57 Ga. 370. 
 Broadhead v. Noyes, 9 Misso. 56 ; Dor- " Cook v. Moffat, 5 How. U. S. 295 ; 
 sey V. Hardesty, 9 Misso. 157 ; Sherman United States Banlc v. Donnally, 8 Pet. 
 V. Gassett, 4 Gilman, 521. 361 ; Gibbs v. Fremont, 9 Exch. 25, 17 
 
 8 Post, § 1393-1397. Jur. 820; De Sobry v. De Laistre, 2 
 
 •• Cox V. United States, 6 Pet. 172, Har. & J. 191; Benners v. Clemens, 8 
 
 203 ; Robinson v. Bland, 2 Bur. 1077, Smith, Pa. 24 ; Campbell v. Nichols, 4 
 
 1078, 1 W. Bl. 256, 259 ; Bell v. Bruen, Vroom, 81 ; Hyatt v. Bank of Ky. 8 
 
 1 How. U. S. 169; Pritchard v. Norton, Bush, 193; Milwaukee, &c. Railway v. 
 106 U. S. 124; Don v. Lippmann, 5 CI. Smith, 74 111. 197; Oregon, &c. Trust 
 &F. 1 ; Brown v. Camden, &c. Railroad, Co. v. Rathbun, 5 Saw. 32. 
 
 2 Norris, Pa. 316. 8 Ante, § 1082, 1084. 
 
 5 Cox V. United States, supra; De ' Ante, § 370-376, 380. 
 
 L.i Vega !). Vianna, 1 B. & Ad. 284; i" Thompson v. Ketcham, 4 Johns. 
 
 Carnegie w. Morrison, 2 Met. 381,389; 285; Anderson u. Drake, 14 Johns. 114; 
 
 Howard v. Branner, 23 La. An. 369 ; Fisher v. Otis, 3 Chand. 83 ; Brown v. 
 
 Allen w. Bratton, 47 Missis. 1 1 9 ; Hersch- Freeland, 34 Missis. 181. And see the 
 
 feld V. Dexel, 12 Ga. 582 ; Boyd v. El- cases cited to the last two sections, 
 
 lis, lllowa, 97; Dunn w. Welsh, 62 Ga. Hyatt v. Bank of Ky. 8 Bush, 193, 
 
 241. seems adverse. 
 
 566 
 
CHAP. LIV.] UNDER CONFLICTING LAWS. § li 
 
 performance.^ Thus, a bill drawn in Ireland and payable 
 England can be discharged only in English money .^ An 
 bond, executed in New York, to indemnify one for becpm 
 surety in a Louisiana suit, being, by its necessary operati 
 payable in Louisiana, takes its effect from the Louisiana la 
 In like manner, the bond of an officer of the United Stal 
 such as a navy agent, though executed in Louisiana, is c 
 strued by the common law prevailing at Washington.* 
 
 § 1394. Two Localities — (Land). — Under the forego 
 rule, the interpretation of some contracts will be in part 
 the law of one State and in part by that of another.^ 
 instance occurs where parties in one State bargain for 
 purchase and sale of land in another, — and the money is 
 be paid in the former State, while the conveyance is nee 
 sarily in the latter, — the law of the latter will regulate 
 question of title, and of the former the question of the eff 
 of a failure of consideration.® 
 
 § 1395. Real Estate, — being a part of the country itself 
 almost of necessity, and always by the common-law rul 
 held and transmissible, whether through grant or inhe: 
 ance, exclusively by the law of the State or country wh 
 it is situated.' Therefore a deed or mortgage of land i 
 contract to be performed where the land lies, and it takes 
 interpretation and effect solely from the law there prevailir 
 
 1 Hirschfeld v. Smith, Law Rep. 1 118. See Mississippi, &c. Eailwa; 
 C. P. 340 ; Allen v. Merchants Bank, United States Exp. Co. 81 111. 534. 
 22 Wend. 215 ; Bowen v. Newell, 3 ^ Glenn v. Thistle, 23 Missis. 
 Kernan, 290; Blodgett v. Durgin, 32 And see Phelps w. Decker, 10 Mass. S 
 Vt. 361 ; Eobinson v. Bland, 1 W. Bl. Kelly v. Davis, 28 La. An. 773 ; Moi 
 234, 256, 253 ; Oregon, &c. Trust Co. v. New Orleans Railroad, 2 Woods, : 
 V. Rathbun, 5 Saw. 32 ; Rothschild v. ' Brodie v. Barry, 2 Ves. & B. 
 Currie, 1 Q. B. 43 ; Gaylord v. Johnson, 131; Elliott v. Minto, 6 Madd. 
 5 McLean, 448. Brine v. Insurance Co. 96 IT. S. ( 
 
 2 Taylor v. Booth, 1 Car. & P. 286. Keegan v. Geraghty, 101 III. 26 ; K 
 Compare with Joslin K.Miller, 14 Neb. v. Sejour, 4 La. An. 128; Cloptoi 
 91, 93; Howenstein v. Barnes, 5 Dil. Booker, 27 Ark. 482; 2 Bishop I 
 482; Cooper v. Waldegrave, 2 Beav. Women, §575. 
 
 282. ' Cantu v. Bennett, 39 Texas, c 
 
 ' Pritchard 7). Norton, 106 U. S. 124. Danner v. Brewer, 69 Ala. 191 ; Ph 
 
 * Cox V. United States, 6 Pet. 172 ; v. Decker, 10 Mass. 267 ; Heyer v. A 
 
 Duncan v. United States, 7 Pet. 435. ander, 108 111. 385. Otherwise in 
 
 5 Pomeroy v. Ainsworth, 22 Barb, braska, Hoadley v. Stephens, 4 Neb. ' 
 
 667 
 
§ 1399 TIME AND PLACE. [BOOK IV, 
 
 For example, by this law it is determinable whether or not 
 a covenant in a conveyance runs with the land.^ And — 
 
 § 1396. Infant Grantor — (Realty — Personalty). — A girl 
 between eighteen and twenty-one, who is of age by the law 
 of the State where she resides,^ can give no greater effect to 
 her deed of land situated in another State in which the com- 
 mon law of majority prevails, than can one of the same age 
 whose domicil is there.^ But she can validly convey her per- 
 sonal effects, being without situs, though they happen to be 
 in the latter State.* 
 
 § 1397. Personal Estate. — Personal property has, in law, 
 no situs; so zxiy conveyance of it, good where made, will 
 transmit the ownership, though it is lying in another State 
 where different forms are required.^ A part or all of our 
 States admit to this rule some not well defined exceptions, 
 whereby special sorts of personal property are put on a foot- 
 ing analogous to real.^ And, in reason, the rule that a con- 
 tract is to have the effect given it by the law of the place 
 of its contemplated performance ^ would seem necessarily to 
 create, at least, apparent exceptions. Again, — 
 
 § 1398. Connected with Real. — As affecting real estate, 
 there are many contracts which are deemed personal ; to be 
 governed, therefore, by the law of the State where made, and 
 to be enforced in any locality.* 
 
 IV. The Discharge of the Contract. 
 
 § 1399. By the Party. — There is no ground for question, 
 and probably it has never been doubted, that, in the absence 
 
 1 Fisher v. Pariy, 68 Ind. 465. ' Ante, § 1390. 
 
 2 Ante, § 893. 8 Gardner v. Ogden, 22 N. Y. 327 ; 
 ' Bamum v. Barnum, 42 Md. 2.')1. Mott v. Coddington, 1 Rob. N. Y. 267 ; 
 
 And see White v. Howard, 46 N. Y. 144 ; Jaclcson v. Hanna, 8 Jones, N. C. 188 ; 
 
 The State u. Bunce, 6.5 Misso. 349. New Yorlc v. Dawson, 2 Johns. Cas. 
 
 * Huey's Appeal, 1 Grant, Pa. 51. 335 ; Low v. Hallett, 2 Caines, 374 ; 
 
 * Partee v. Silliman, 44 Missis. 272 ; Henwood v. Cheeseman, 3 S. & B. 
 Cantu V. Bennett, 39 Texas, 303 ; Ames 500, 503 ; Osmond v. Flournoy, 34 Ga. 
 Iron Works v. Warren, 76 Ind. 512. 509 ; Doulson v. Matthews, 4 T. K. 
 
 « Hallgarten v. Oldham, 135 Mass. 503. 
 1 ; Clark v. Tarbell, 58 N. H. 88. 
 
 568 
 
CHAP. LIV.] UNDBE CONFLICTING LAWS. § 1401 
 
 of special circumstances,^ any discharge by the promisee to 
 the promisor, validly executed according to the law of the 
 place where given, operates as a release of an executory con- 
 tract everywhere. If we please, we may deem such dis- 
 charge a new contract ; good, therefore, within a rule before 
 stated.^ 
 
 § 1400. By the Law. -^ When the law undertakes to dis- 
 charge a contract, without the concurrent act of the parties, 
 the element which their mutual presence supplies must be 
 added ; namely, a jurisdiction. Under the familiar principle 
 that laws have inherently no extra-territorial force,** a con- 
 tract within the exclusive jurisdiction of one country cannot, 
 in the absence of any.mutual moving from the parties, be dis- 
 charged by the law of another. It is impossible to formulate 
 in language a rule for the jurisdiction, universally correct and 
 applicable to all cases. The author, in " Marriage and Di- 
 vorce," has explained the jurisdiction for dissolving marriage, 
 — a matter depending on many complications of things, not 
 possible to be stated in a sentence. So — 
 
 § 1401. Bankruptcy Laws, — discharging debtors on the 
 surrender of their property without the consent of their cred- 
 itors, cannot operate on every contract, wherever made, and 
 whoever the parties. This is a question involving many de- 
 tails, and it would be vain to enter into it here, with our 
 limited space.* 
 
 1 Greenwald v. Kaster, 5 Norris, Pa. debt or liability^ and does rot merely 
 45. interfere with the remedies or course 
 
 2 Ante, § 1371-1373. of procedure to enforce it, will be an 
 ' Bishop WrittenLaws,§ 141; Blanch- effectual answer to the claim, not only 
 
 ard 1). Russell, 13 Mass. 1,4; Augusta in the courts of that country, but in 
 
 Bank w. Earle, 13 Pet. .^19 ; Campbell v. every other country. This is the law of 
 
 Hall, Cowp. 204, 208 ; In re Pnlsifer, England, and is a principle of private 
 
 14 Fed. Rep. 247 ; Drew v. Smith, 59 international law adopted in other coun- 
 
 Maine, 393 ; State Bank v. Plainfield tries." Referring to Burrows u. Jemino, 
 
 Bank, 7 Stew. Ch. 450. 2 Stra. 733 ; Ballantine v. Golding, 
 
 * See Met. Con. 31 7 et seq. In Ellis Cooke's Bk. Law, 499 ; Potter v. Brown, 
 
 V. McHenry, Law Rep. 6 C. P. 228, 234, 5 East, 124 j Odwin v. Forbes, Buck, 
 
 Bovill, C. J. states the English doctrine 57 ; Quelin v. Moisson, 1 Knapp, 266, 
 
 to be, that, first, " a debt or liability note ; Gardiner v. Houghton, 2 B. & 
 
 arising in any country may be discharged S. 743; Phillips v. Eyre, Law Rep. 6 
 
 by the laws of that country, and that Q. B. 1, 28. " Secondly, as a general 
 
 such a discharge, if it extinguishes the proposition, ... the discharge of a, 
 
 669 
 
§ 1403 TIME AND PLACE. [BOOK IV. 
 
 § 1402. Common Formula. — The general doctrine is com- 
 monly stated in the books to be, that a contract discharged 
 by the law of the State or country in which it was made, and 
 where it was meant to be performed, is no longer binding 
 elsewhere ; ^ and, on the other hand, that one discharged by 
 the law of a place where it was not made or to be performed, 
 will not be treated as dissolved in any other State or coun- 
 try.2 The latter clause is true in most circumstances, not 
 all.* And neither clause is practically a perfect guide for all 
 cases. Unless we could occupy a volume with this subject, 
 little would be gained by further particularization. 
 
 V. The Procedure for the Enforcement of the Contract. 
 
 § 1403. The Rule. — Every court has its own procedure, to 
 which litigants must conform, whatever the origin of the 
 cause of action.* So that, though the lex loci, as it is termed, 
 regulates the right under a foreign contract, the lex fori gives 
 the remedy ; in other words, the proceedings to enforce the 
 right acquired abroad are the same as though it were domes- 
 tic* And if, from the peculiar nature of the right, there is 
 
 debt or liability by the law of a country ligation of contracts, and the inter- 
 other than that in which the debt arises, pretations of it, explained ante, § 550 
 does not relieve the debtor in any other et eeq. 
 
 country." Referring to Smith v. Bu- i Warder v. Arell, 2 Wash. Va. 282 ; 
 chanan, 1 East, 6 ; Lewis «. Owen, 4 B. Blanchard v. Russell, 13 Mass. 1 ; Green 
 & Aid. 654 ; Phillips v. Allan, 8 B. & v. Sarmiento, Pet. C. C. 74 ; Poe v. 
 C. 477 ; Hartley v. Hodges, I B. & S. Duck, 5 Md. 1 ; Le Roy v. Crownin- 
 375. "But, thirdly, where [as in the shield, 2 Mason, 151; Lewis i;. Wood- 
 case of England and her colonies] the folk, 2 Baxter, 25. 
 discharge is created by the legislature 2 Story Conf Laws, § 342. 
 or laws of a country which has a para- 8 Prentiss v. Savage, 13 Mass. 20 ; 
 mount jurisdiction over another country Ingraham v. Geyer, 13 Mass. 146; Tap- 
 in which the debt or liability arose, or pan v. Poor, 15 Mass. 419. 
 by the legislature or laws which govern ^ Ante, § 1371. 
 
 the tribunal in which the question is to ^ Laird v. Hodges, 26 Ark. 356 ; 
 
 be decided, such a discharge may be Alexandria Canal v. Swann, 5 How. 
 
 effectual in both countries in the one U. S. 83 ; Smith v. Atwood, 3 McLean, 
 
 case, or in proceedings before the tribu- 545 ; McKissick t>. McKissick, 6 Humph, 
 
 nal in the other case." In our States, 75 ; Partee v. Silliman, 44 Missis. 272 ; 
 
 this question is further complicated by Don v. Lippmann, 5 CI. & F. 1 ■ Scoville 
 
 the provision of the United States w. Canfield, 14 Johns. 338 ; Mathuson w. 
 
 Constitution against impairing the ob- Crawford, 4 McLean, 540' Broadhead 
 
 570 
 
CHAP. LI v.] UNDEB CONFLICTING LAWS. §.!•( 
 
 no adequate procedure known to the court, the contract a 
 practically be nuU.^ To illustrate, — 
 
 § 1404. Specialty or Simple. — On a contract in a form 
 be a specialty where made, but not where its enforcemen 
 sought, or the reverse, — as, if the signature is followed b 
 scroll, which in some States is by law a seal and in other 
 not,'^ — the suit must be in the form ^ prescribed by the ] 
 of the court entertaining it, for the sort of contract w 
 which by this law it is classed.* Or, — 
 
 § 1405. Arrest. — If, by the law of the place of the c 
 tract, the party to be sued cannot be arrested or imprison 
 or if he has there been freed from his original liability to 
 rest, — as, under insolvent laws which discharge the pen 
 of the debtor but not the debt, — he may be arrested ii 
 suit upon it in another State or country, where arrest is p 
 mitted by the general law." Again, — 
 
 § 1406. Corporation or Partners. — Persons are to be si 
 as a corporation or as partners, according as they are the ( 
 or the other by the law of the place of the suit, not of 
 contract.^ And, — 
 
 §1407. Interest. — If interest is adjudged as damages, 
 not speaking now of interest payable under the contract, 
 the rate will be governed by the law of the place of the su 
 Even, in an action upon a judgment rendered in anot' 
 State, and specifying its rate of interest, the court, disrega 
 
 ». Noyes, 9 Misso. 56 ; Andrews v. Her- Lynch, 5 Johns. 239 ; United St 
 
 riot, 4 Cow. 508 ; London, &c. Kail- Bank v. Donnally, 8 Pet. 361 ; Dou 
 
 way u. Lindsay, 3 Macq. H. L. Cas. 99, w. Oldham, 6 N. H. 150. And see f 
 
 4 Jur. N. s. 343 ; Mineral Point Rail- son v. Brewster, 1 Barr, 381 ; Adaii 
 
 road V. Barron, 83 111. 365 ; Denny v. Kerr, 1 B. & P. 360. 
 Faulkner, 22 Kan. 89. * Ayres v. Audubon, 2 Hill, S 
 
 1 2 Bishop Mar. Women, § 565, 567 ; 601 ; Whittemore v. Adams, 2 Cow. i 
 Commonwealth v. HoUoway, 1 S. & R. De La Vega v. Vianna, 1 B. & Ad. S 
 392. And see Lessley v. Phipps, 49 Imlay v. EUefsen, 2 East, 453. 
 Missis. 790. ' Liverpool Ins. Co. v. Massachusi 
 
 2 Ante, §111. lOWal. 566; Taft u. "Ward, 106 M 
 ' The State v. Thompson, 49 Misso. 518; Gott v. Dinsmore, 111 Mass. 
 
 188. 51. See Bullock u. Caird, Law Eep 
 
 * Le Roy v. Beard, 8 How. V. S. Q. B. 276. 
 451 ; McClees v. Burt, 5 Met. 198; An- ' Goddard v. Foster, 17 Wal. 1 
 
 drews v. Hen-iot, 4 Cow. 508 ; Trasher 143. 
 V. Ererhart, 3 Gill & J. 234 ; Warren v. 
 
 571 
 
§ 1410 TIME AND PLACE. [BOOK IV. 
 
 ing this part of it, will give the interest-damages which the 
 domestic law provides.^ So — 
 
 § 1408. Set-off. — A set-off, not permissible under the pro- 
 cedure of the courts where the contract arose, is good in 
 defence if in accord with the law of the forum.^ Also — 
 
 § 1409. statutes of Limitation — pertain, not to the right, 
 but to the remedy. Therefore a domestic suit to vindicate a 
 foreign right is governed, not by. the foreign statute, but by 
 the domestic.^ This doctrine is by most courts carried so far 
 that, even though the statute of the State in which the de- 
 mand originated, and the parties resided, has fully run against 
 it, the aggrieved party may effectually sue the other, if he 
 can serve process upon him, in any other State or country by 
 whose laws the action is not likewise barred,* — a conclusion 
 in some of the States reversed by special terms of statutes.^ 
 Now, — 
 
 § 1410. Further as to which. — It has been adjudged, ap- 
 parently without dissent, that the complete running of the 
 statute creates a vested right in the party, which, under our 
 American constitutions, it is not competent for legislation to 
 impair by authorizing a suit on the barred claim.® Since, 
 therefore, not even the legislative power of the State where 
 the right has vested and the parties are domiciled can take 
 it away, by what sort of " comity of nations " ^ do the courts 
 of another State proceed when, fastening their fangs upon the 
 party, they strip him of what our constitutions secure to him 
 in the State of his domicil ? Moreover, even if this were not 
 so, " comity " would not seem, in reason, to dictate the 
 
 1 Clark V. Child, 136 Mass. 344, 348. 68 N. Y. 83, 87, 88 ; Thompson v. Reed, 
 
 2 Davis w. Morton, 5 Bush, 160, 164; 75 Maine, 404, 406, 407. See Norton ». 
 Second Nat Bank v. Hemingray, 31 Sterling, 15 La. An. 399; Petehell v, 
 Ohio State, 168. Hopkins, 19 Iowa, 531; Hale ti. Law- 
 
 8 2 Kent Com. 462, 463. rence, 1 Zab. 714. 
 
 * British Linen Co. v. Drummond, ' Osgood v. Artt, 11 Bis. 160; Davis 
 
 lOB. &C. 903; Byrne B. Crowninshield, w. Harper, 48 Iowa, 513; McArthur v. 
 
 17 Mass. 55 ; Jones u. Jones, 18 Ala. Goddin, 12 Bush, 274 ; Humphrej' v. 
 
 248 ; Buggies ;;. Keeler, 3 Johns. 263 ; Cole, 14 Bradw. 56 ; Minniece v. Jeter, 
 
 Pegram v. Williams, 4 Rich. 219 ; Wat- 65 Ala. 222. 
 
 son V. Brewster, 1 Barr, 381 ; Aldrich v. ^ Bishop Stat. Crimes, § 265. 
 
 Aldrich, 56 Vt. 324; Sawyer v. Macau- ' Ante, § 1370. 
 lay, 18 S. C. 543 ; Miller i;. Brenham, 
 
 572 
 
CHAP. LIV.] UNDER CONFLICTING LAWS. § 1412 
 
 enforcing, in our tribunals, of a foreign demand, which the 
 foreign court itself would by its own law be forbidden to 
 entertain. This view which, it is submitted, is correct in 
 principle, would not preclude the following of the domestic 
 statute as to claims not fully barred by the foreign law. 
 
 § 1411. Right Extinguished. — We have intimations that, if 
 a statute like this of limitations operates to extinguish the 
 right in the country where it arises and the parties are domi- 
 ciled, the courts of another jurisdiction will not thereafter 
 give it effect.^ 
 
 § 1412. The Doctrine of this Chapter restated. 
 
 A judicial tribunal should, in the decision of every ques- 
 tion, follow the laws prescribed for it by the sovereignty 
 under which it sits. But there is a comity of nations, as the 
 term is, whereby it has become customary for the various 
 governmental powers to respect one another's laws ; so that, 
 if a contract made in one country is drawn in question in 
 another, the tribunals of the latter will, in the absence of any 
 domestic rule or policy restraining, accept the foreign law as 
 the domestic, for ascertaining its validity.^ But this rule 
 stops short at every point where it would become subversive 
 of the domestic law. The interpretation and effect of the 
 contract are determined by the law of the place of its intended 
 performance, whether at home or abroad ; its discharge, when 
 by operation of law, by any law moving thereto, and having 
 a jurisdiction over it. In enforcing the contract, the foreign 
 procedure is never employed ; because courts must have their 
 own, and it would be both inconvenient and subversive of 
 domestic justice to adopt the foreign forms. 
 
 1 Story Conf. Laws, § 582 ; 2 Pars. Con. 591, note; McMertj v. Morrison, 62 
 Misso. 140. 
 
 " 1 Bishop Mar. & Div. § 367. 
 
 673 
 
§ 1415 BREACH AND PEEFORMANCE, [BOOK V. 
 
 BOOK V. 
 
 THE BKEACH AND PERFORMANCE OF THE 
 CONTRACT. 
 
 CHAPTER LV. 
 
 WHAT IS A BKEACH AUTHORIZING A SUIT AT LAW. 
 
 § 1413. Introduction. 
 
 1414-1418. In General. 
 
 1419-1424. As to Plaintiff. 
 
 1425-1432. As to Defendant. 
 
 1433-1439. Further Questions. 
 
 1440. Doctrine of Chapter restated. 
 
 § 1413. How Chapter divided. — We shall consider this sub- 
 ject, I. In General; II. As to the Plaintiff; III. As to the 
 Defendant ; IV. Further Questions. 
 
 I. In Creneral. 
 
 § 1414. Elsewhere — Here. — In a series of chapters in 
 another connection,^ are explained the alteration of the con- 
 tract, its rescission, ratification, release, and. the doctrine of 
 election and waiver relating thereto. We are here to con- 
 template the finished, final agreement, unrescinded.^ In the 
 next chapter, we shall see something of rights conferred by 
 a partial or imperfect execution of a contract which still is 
 altogether or in part broken. 
 
 § 1415. Interpret. — In every judicial controversy under a 
 
 1 Ante, § 74.5-879. 2 Hughes v. Prewitt, 5 Texas, 264. 
 
 574 
 
CHAP. LV.] WHAT A BREACH. § 1417 
 
 contract, it, like the law,^ must be interpreted. And the in- 
 terpreted contract, not the mere words of the bargaining, is 
 what the court enforces. Therefore, to ascertain whether 
 there has been a breach, or a performance, or neither, we 
 must first interpret the agreement, — the leading rules for 
 which have already been stated.^ To illustrate, — 
 
 § 1416. Employer and Bmployee. — Whenever one enters 
 into another's service, whether in a continuous employment 
 or for the doing of a particular thing, the law, interpreting 
 the contract, adds to its general words, in the absence of 
 special ones, or of special facts controlling the particular case, 
 his promise to bring to the work ordinary skill and capacity, 
 together with integrity therein, and faithfulness to the inter- 
 ests of his employer ; the sort of skill varying with the nature 
 of the business, and the holding out of the employee.^ Thus, 
 a physician, surgeon, or dentist undertakes, in law, to sup- 
 plement his reasonable care and honest endeavors with ordi- 
 nary professional skill,* yet does not warrant success or a 
 cure.* A workman by the day, or any other within the like 
 reason, impliedly promises, in addition to the care common to 
 all, not the skill of the medical man, but such as is required 
 for the particular employment, in the ordinary degree.® The 
 clerk in a store, or other like employee, undertakes, among 
 other things, to transact business with reasonable accuracy 
 and fidelity, and otherwise to adjust his conduct to the inter- 
 ests of his employer.'^ Now, — 
 
 § 1417. Effect of Interpretation. — To continue our illustra- 
 tions from the law of employer and employee, these and 
 
 1 Bishop Written Laws, § 71. Clapp, 4 Sneed, Tenn. 65 ; Long v. Mor- 
 
 ^ Ante, § 365 et seq. rison, 14 Ind. 595; Craig v. Chambers, 
 
 ' Ante, § 246 ; Page v. "Wells, 37 17 Ohio State, 253; Simonds v. Henry, 
 
 Mich. 415; Keith K. Bliss, 10 Bradw. 424; 39 Maine, 155; Higgins w. McCabe, 126 
 
 Harmer v. Cornelius, 5 C. B. n. s. 236, Mass. 13, 20. 
 
 4 Jar. N. s. 1110; Newman ?'. Eeagan, ^ O'Hara v. Wells, 14 Neb. 403; 
 
 65 Ga. 512 ; Brink v. Fay, 7 Daly, 562 ; Bogle v. Winslow, 5 Philad. 136. 
 
 Griffin i>. Haynes, 24 La. An. 480 ; « Eaton v. Woolly, 28 Wis. 628 ; 
 
 Waugh V. Shunk, 8 Harris, Pa. 130. Parker v. Piatt, 74 III. 430. 
 
 * Hathorn v. Richmond, 48 Vt. 557 ; ^ Griffin v. Haynes, 24 La. An. 480 ; 
 
 Utiey 7). Burns, 70 111. 162 ; Landon Brink v. Fay, 7 Daly, 562 ; Newman v. 
 
 V. Humphrey, 9 Conn. 209 ; Wood v. Eeagan, 65 Ga. 512. 
 
 675 
 
§ 1419 BREACH AND PERFOKMANCB. [BOOK V. 
 
 numerous other implied stipulations, introduced into the eon- 
 tract by interpretation, are of precisely the same effect as 
 though written into it in terms.^ For example, a breach of 
 such a stipulation, the same as of one in oral or written words, 
 may furnish ground for rescinding the contract,^ as where a 
 master discharges his servant ; ^ . or for a suit upon it, or to 
 obtain recompense for an injury inflicted in improperly carry- 
 ing it out ; * or for precluding a plaintiff from recovering a 
 verdict, or for reducing it, by reason of the imperfection or 
 failure of performance on his part.^ 
 
 § 1418. Elements of Suit. — To the success of a lawsuit, 
 two elements are always essential ; namely, a right in the 
 plaintiff, and a correlative wrong in the defendant. And the 
 plaintiff must be without fault in the thing of which he com- 
 plains, and the defendant must be in fault.® This, therefore, 
 is the rule in actions upon contracts, — there must be a per- 
 formance ^ or readiness to perform,'^ as the particular contract 
 may require, by the plaintiff, and a breach by the defendant. 
 The minuter explanations are for our remaining sub-titles. 
 
 II. As to the Plaintiff. 
 
 § 1419. Nature of Undertaking. — To determine whether or 
 not a plaintiff is in the right, so as to be entitled to take 
 advantage of the defendant's wrong, we must look to the 
 
 1 Ante, §241. son v. Clark, 70 111. 656; Taylor v. 
 
 2 Burkhara v. Daniel, 56 Ala. 604. Renn, 79 111. 181 ; Coulter i;. Board of 
 8 Parker v. School District, 5 Lea, Education, 63 N. Y. 365 ; BufCkin v. 
 
 525 ; Drayton v. Reid, 5 Daly, 442 ; Baird, 73 N. C. 283. And see ante, 
 
 Newman v. Reagan, 65 Ga. 6|12; Brink § 489, 816, 835. 
 
 V. Fay, 7 Daly, 562. ' Long v. Hartwell, 5 Vroom, 116; 
 
 * Utley V. Burns, 70 111. 162; Ha- Allen v. Atkinson, 21 Mich. 351 ; Brown 
 
 thorn V. Richmond, 48 Vt. 557 ; Ballon v. Fitch, 4 Vroom, 418 ; Pullman v. 
 
 V. Prescott, 64 Maine, 305. Corning, 5 Selden, 93. 
 
 6 Waugh V. Shunk, 8 Harris, Pa. 8 Noble u. Edwardes, 5 Ch. D. 378, 
 
 130 ; Parker v. Piatt, 74 111. 430 ; Eaton 393 ; Hapgood v. Shaw, 105 Mass. 276 ; 
 
 V. Woolly, 28 Wis. 628; Newman v. Carpenter v. Holcomb, 105 Mass. 280; 
 
 Reagan, 63 Ga. 755 ; Harris v. Rathbun, Bradford v. Williams, Law Rep. 7 Ex. 
 
 2Abb. Ap. 326. 259; Smith v. Lewis, 24 Conn. 624; 
 
 ' 1 BishopCrim.Law, §11 ; 2 Bishop Seymour i'. Bennet, 14 Mass. 266, 268 ; 
 
 Mar. & Div. § 75 ; Smith v. Cedar Darland v. Greenwood, 1 McCrary, 
 
 Rapids Railroad, 43 Iowa, 239 ; Raw- 337. 
 
 676 
 
CHAP. LY.] WHAT A BREACH. § 1421 
 
 nature of the mutual undertaking, as defined by the inter- 
 preted contract. Thus, — 
 
 § 1420. Dependent, Separate Promises. — If one of two par- 
 ties is to do a thing, whereupon the other is to do something 
 else, the former cannot sue the latter for non-performance 
 until he has himself performed ; ^ as, for example, he cannot 
 recover an agreed salary until he has fully discharged the 
 duties in return for which it is awarded.'^ And one who, for 
 a Slim to be paid him, undertakes to find a purchaser for a 
 farm, cannot enforce payment until he has found a person 
 willing to buy it entire.^ Nor will it suffice that the thing 
 which the plaintiff has done is as good as what he agreed ; 
 it must be the particular thing.* Further — 
 
 § 1421. As to which. — If, where the performance has been 
 imperfect or incomplete, the defendant has still derived a 
 benefit therefrom, the plaintiff may, or not, according to the 
 circumstances, maintain an action for the value of such 
 benefit, on a promise which the law will create, as will be 
 explained in the next chapter. So, also, as shown in a pre- 
 ceding chapter,^ there may be a waiver by the defendant, 
 excusing the plaintiff from doing the thing in time or man- 
 ner.® Beyond this, there are cases, probably not quite re- 
 ducible to a rule, — yet, in general, including all those in 
 which there has been a substantial performance,^ accompanied 
 
 1 Cornell V. Cornell, 96 N. Y. 108; 635 ; Skidmore v. Eikenberry, 53 Iowa, 
 
 Shelden u. Butcher, 35 Mich. 10 ; Belt 621. 
 
 V. Stetson, 26 Minn. 411 ; Bryant v. ^ Allegany v. Adams, 43 Md. 349; 
 
 Sears, 49 Iowa, 373 ; McLaughlin v. People v. Gardner, 55 Cal. 304. 
 
 Child, 62 Ind. 412 ; Lyndon Granite Co. » Weber v. Clark, 24 Minn. 354. 
 
 i>. Farrar, 53 Vt. 585 ; Branch v. Palmer, * Bixby v. Wilkinson, 25 Minn. 481 ; 
 
 65 Ga. 210 ; Gilbert i'. Port, 28 Ohio Fauble v. Davis, 48 Iowa, 462 ; Dauchey 
 
 State, 276 ; Ehlert v. Klenger, 43 Mich. v. Drake, 85 N. Y. 407. 
 
 61 ; White v. Day, 56 Iowa, 248 ; Pratt ^ Ante, § 789-807. 
 
 ». Canton Cotton Co. 51 Missis. 470; ' Eobinson w. Bullock, 66 Ala. 548; 
 
 Murphy v. St Louis, 8 Misso. Ap. 483 ; Levy v. Burgess, 64 N. Y. 390 ; Norton 
 
 Jones V. United States, 96 U. S. 24; r. Browne, 89 Ind. 333; Dauchey v. 
 
 Vinton v. Baldwin, 88 Ind. 104 ; Taylor Drake, supra ; Lawrence v. Miller, 86 
 
 V. Jackson, 5 Houst. 224 ; Jewett v. N. Y. 131 ; Flannery v. Kohrmayer, 46 
 
 Brown, 71 Maine, 485 ; Fay v. Guynon, Conn. 558 ; Holton v. McPike, 27 Kan. 
 
 131 Mass. 31 ; Bugbee v. Haynes, 43 286 ; Bast v. Byrne, 51 Wis. 531 ; Ben- 
 
 Vt. 476 ; Hopkins v. Sanford, 38 Mich, jamin v. Zell, 4 Out. Pa. 33. 
 
 611 ; Thoubboron v. Lewis, 43 Mich. 7 Ante, § 605 ; Chandler v. The 
 
 37 577 
 
§ 1423 BEEACH AND PERPOEMANCB. [BOOK V. 
 
 by good faith,! — wherein, though the plaintiff is not abso- 
 lutely free from fault or omission, the court will not turn him 
 away ; but, enforcing his rights on the one hand, will pre- 
 serve the defendant's rights on the other, by permitting a 
 recoupment, set-off, or cross action.^ Yet the mere belief of a 
 plaintiff that the things done constitute a performance, when 
 they do not, will not avail him.^ The doctrine of this section 
 cannot be fully extended to a — 
 
 § 1422. Condition Precedent. — A condition precedent must 
 be strictly complied with ; and, where it has not been so by 
 the plaintiff, he cannot successfully complain of the defend- 
 ant's breach,* unless the latter has waived it or done some- 
 thing else to excuse performance.^ What is here meant is 
 the interpreted condition ; as, if payment is to be made when 
 a certain cause is decided in favor of the plaintiff, such con- 
 dition is fulfilled by au agreement that the plaintiff shall have 
 judgment for a specified sum.® 
 
 § 1423. Independent Promises. — The foregoing doctrines 
 do not apply to cases wherein, by the form or nature of the 
 contract, the promise of the one party is independent of that 
 of the other.'' He who is in default must then answer for it, 
 though he has a claim upon the other under the same con- 
 tract.* Again, — 
 
 State, 38 Ark. 197 ; Loren v. Hillhoiise, » Smyth v. Ward, 46 Iowa, 339 ; 
 
 40 Ohio State, 302 ; Eees v. Smith, Devine v. Edwards, 101 111. 138. 
 1 Ohio, 124; Hovey v. Pitcher, 13 « Ante, § 586; Aller w. Pennell, 51 
 
 Misso. 191 ; Malbon v. Birney, 11 Wis. Iowa, 537; Drake v. Hill, 53 Iowa, 37; 
 
 107. Worsley i>. Wood, 6 T. R. 710; Snell 
 
 1 Beach v. Mullin, 5 Vroom, 343 ; v. Cheney, 88 111. 258 ; Claflin v. Com- 
 Wade y. Haycock, 1 Casey, Pa. 382. monwealth Ins. Co. 110 U. S. 81; 
 
 2 Eaton V. Woolly, 28 Wis. 628 ; Toombs v. Consolidated Poe Mining Co. 
 Parker u. Piatt, 74 111. 430; Kenworthy 15 Nev. 444; Webb v. Smith, 6 Colo. 
 O.Stevens, 132 Mass. 123; Warren v. 365; Fayetteville Bank k. Clark, 9 Bax- 
 Stoddart, 105 U. S. 224 ; Reed v. Gal- ter, 589. And see Piper v. Kingsbury, • 
 laher, 53 Ga. 456 ; The State v. Blain, 48 Vt. 480. 
 
 36 Ohio State, 429 ; Supervisors v. ^ Mains v. Haight, 14 Barb. 76 ; 
 
 Arrghi, 51 Missis. 667 ; Houston, &c. Livesey v. Omaha Hotel, 5 Neb. 50 ; Es- 
 
 Railway v. Snelling, 59 Texas, 116; tabrook v. Omaha Hotel, 5 Neb. 76; 
 
 Van Buren v. Digges, 11 How. TJ. S. Boehme ». Omaha Hotel, 5 Neb. 80; 
 
 461 ; Dunlap v. Hand, 26 Missis. 460 ; Stockwell v. Gidney, 73 Maine, 84. 
 Noble V. James, 2 Grant, Pa. 278; Wil- 6 Kittrell v. Hawkins, 74 N. C. 412i 
 liams V. Schmidt, 54 111. 205 ; Garfield ' Ante, § 401. 
 V. Huls, 54 111. 427. 8 Pordage v. Cole, 1 Sannd. Wms. 
 
 578 
 
CHAP. LV.] WHAT A BREACH. § 1428 
 
 § 1424. Defendant's Preventing. — In the case of dependent 
 promises, a plaintiff who has come short of fulfilment because 
 the defendant prevented him, may maintain his action.^ 
 
 III. As to the Defendant. 
 
 § 1425. Inability or Refusal. — A common breach is where 
 one is unable or declines to go on with his contract ; ^ or 
 where, after the other has performed, he cannot or will not 
 pay the agreed price.^ Again, — 
 
 § 1426. Disqualify Self. — If one voluntarily puts it out of 
 his power to do what he has agreed, he breaks his contract, 
 and is immediately liable to be sued therefor, without de- 
 mand, CA'^en though the time specified for performance has not 
 arrived.* Or, — 
 
 § 1427. Disqualified 'when Contract made. — If, when he 
 makes a contract, he is, unknown to the other party, disquali- 
 fied to fulfil it, the breach is simultaneous with the promise, 
 and he may be sued immediately.^ In like manner, — 
 
 § 1428. "Wrongful Rescinding — Refusal. — One exercising 
 the power, already spoken of,' to rescind his contract without 
 right, — that is, declaring to the other party his intention not 
 to abide by it, — commits thereby a breach whereon the other 
 may bring an immediate suit, without demanding a perform- 
 ed. 319 Z, and note; Carpenter ». Cress- 371, lb Jur. 246; Short v. Stone, 3 
 well, 4 Bing. 409, 411; McEaven v. Dowl. & L. 580, 10 Jur. 245; Caines p. 
 Crisler, 53 Missis. 542; Lutz v. Thomp- Smith, 15 M. & W. 189; Boyle v. Guy- 
 son, 87 N. C. 334; Adrian w. Lane, 13 singer, 12 IndA73; Delamater w. Miller, 
 S. C. 183; Moggridge v. Jones, 14 1 Cow. 75; Lovering v. Lovering, 13 
 East, 486; Campbell v. Jones, 6 T. R. N. H. 513; Webster v. CofSn, 14 Mass. 
 570. 196; Cooper v. Mowry, 16 Mass. 5, 7; 
 
 1 Ante, § 1422 ; post, § 1431; Hotham Bassett v. Bassett, 55 Maine, 127 ; Smith 
 V. East India Co. 1 Dong. 272 ; Mackay v. Jordan, 13 Minn. 264 ; Crist v. Ar- 
 V. Dick, 6 App. Cas. 251; Risley t'. mour, 34 Barb. 378 ; Branson w. Orego- 
 Smith, 64 N. Y. 576. nian Railway, 10 Oregon, 278; Main's 
 
 '■^ Ante, § 837-840 ; Lyman v. Ly- Case, 5 Co. 20 b. See McDonald v. 
 man, 133 Mass. 414 ; Thompson v. Williams, 1 Hilton, 365. 
 Laing, 8 Bosw. 482 ; Davis v. Crawford, 5 post, § 1429 ; Woods v. North, 6 
 
 2 Mill, 401. Humph. 309; Harrington ti. Wells, 12 
 
 ' Shackelford v. Barrow, 2 Bay, 91. Vt. 505. 
 
 * Ante, § 826; Wolf v. Marsh, 54 ' Ante, § 837-841. 
 Gal. 228 ; Lovelock v. Franklyn, 8 Q. B. 
 
 679 
 
§ 1431 BREACH AND PERFORMANCE. [BOOK V. 
 
 ance which, by the terms of the contract, was to be in the 
 future.' To illustrate, — 
 
 § 1429. Marriage Promise. — After a mutual promise to 
 marry, if it turns out that one of the parties was already 
 under the disabilities of a prior marriage,^ — or, if he marries 
 afterward another person,^ — or breaks off the engagement 
 before the time for its fulfilment,* — the other may immedi- 
 ately sue for the breach of promise. Or, — 
 
 § 1430. Make Conveyance. — The agreement being that one 
 shall convey lands or goods to another, if the former parts 
 with them, or if he destroys the goods, the latter may sue 
 him without waiting for the contract time to elapse, and 
 without demanding the conveyance.^ 
 
 § 1431. Obstructing Periormance. — For the like reason, a 
 party who prevents the other from performing the conti-act, 
 or hinders him therein, violates it. And the doctrine, which 
 ia sound in some circumstances, is often laid down quite 
 broadly, that the one who keeps the other from fulfilling 
 must pay the same as though it were fulfilled.^ Also, if per- 
 formance is a condition precedent, he who prevents it waives 
 the condition.^ Even a mere hindrance may be a waiver as 
 
 1 Frost V. Knight, Law Kep. 7 Ex. * Short v. Stone, 8 Q. B. 358 ; King 
 111 ; Holloway v. Griffith, 32 Iowa, v. Kersey, 2 Ind. 402 ; Clements v. 
 409 ; Bunge v. Koop, 48 N. Y. 225 ; Moore, 11 Ala. 35. 
 
 Crabtree v. Messersmith, 19 Iowa, 179 ; * Frost v. Knight, Law Eep. 7 Ex. 
 
 Jewett V. Brooks, 134 Mass. 505 ; United 111; Holloway v. Griffith, 32 Iowa, 409 ; 
 
 States V. Behan, 110 U. S. 338; Sul- Burtis u. Thompson, 42 N, Y. 246. See 
 
 lings V. Goodyear Dental Vulc. Co. 36 Coil v. Wallace, 4 Zab. 291. 
 
 Mich. 313 ; Mersey Steel, &c. Co. v. ^ Newcomb v. Brackett, 16 Mass. 
 
 Naylor, 9 App. Cas. 434, 442, 443; 161; Heard v. Bowers, 23 Pick. 455, 
 
 Shaw V. Republic Life Ins. Co. 69 N. Y. 460 ; Griffith v. ^oodhand, T. Jones, 
 
 286 ; Hochster v. De La Tour, 2 Ellis 191 ; Hopkins v. Yonng, 11 Mass. 302, 
 
 & B. 678. If, however, the disability is 306. 
 
 involuntary, it will not be deemed a <> Majors v. Hickman, 2 Bibb, 217; 
 
 breach until the time for performance Carrell v. Collins, 2 Bibb, 429 ; Marshall 
 
 arrives. Heard v. Bowers, 23 Pick. 455. v. Craig, 1 Bibb, 379. See Blood v. 
 
 2 Blattmacher v. Saal, 29 Barb. 22. Enos, 12 Vt. 625 ; Devlin v. Second 
 If the disability is known to both par- Avenue Railroad, 44 Barb. 81 ; Wall- 
 ties, the promise is void, and no action man v. Society of Concord, 45 N. Y. 
 will lie. Haviland v. Halstead, 34 N. Y. 485 ; St. Louis v. McDonald, 10 Misso. 
 643. For an explanation of this distinc- 609. 
 
 tion, see ante, § 481, 482, 489. And see ' Ante, § 1424 ; Dodge v. Rogers, 9 
 Blossom V. Barrett, 37 N. Y. 434. Minn. 223 ; Jones i;. Walker, 13 B. 
 
 580 
 
CHAP. LV.] WHAT A BEEACH. § 1433 
 
 to time.^ And plainly one cannot maintain a suit against 
 another for not doing what he put it out of the other's power 
 to do.2 But — 
 
 § 1432. Limits of Doctrine. — This doctrine should not be 
 carried to the extent of working injustice. It needs no argu- 
 ment to show, that, if one who has promised to pay for a 
 thousand bushels of wheat on delivery refuses to accept it, 
 he cannot be made to pay the entire agreed sum, and the 
 other permitted to keep the wheat.^ Or, if one is to have 
 ten thousand dollars for building a house on another's land, 
 the latter, on ordering him off, cannot be compelled to pay 
 all, with no benefit conferred.* The true doctrine for such a 
 case has, it is believed, been stated in a previous chapter.^ 
 
 IV. Further Questions. 
 
 § 1433. Concurrent. — Under a contract which, as inter- 
 preted, calls for concurrent acts by the parties, — for example, 
 requires the one to convey land to the other who is simulta- 
 neously to pay for it, — neither can maintain a suit against 
 the other until he has done his part, or offered to do it on the 
 other's performing ; and, in some circumstances, or by some 
 opinions, performance by the other must also be demanded.^ 
 
 Monr. 163; Camp v. Barker, 21 Vt. * See, and query, Clendennen «. Paul- 
 
 469 ; Williams v. United States Bank, sel, 3 Misso. 230. 
 
 2 Pet. 96, 102. 6 Ante, § 837-841. 
 
 1 Ketchum v. ZeilsdorfF, 26 Wis. 514. « Fuller v. Hubbard, 6 Cow. 13 ; Ish- 
 
 2 Stewart v. Keteltas, 36 N. Y. 388; mael v. Parker, 13 111. 324; Small v. 
 McKee v. Miller, 4 Blackf. 222 ; Parker Reeves, 14 Ind. 163 ; Fuller v. Williams, 
 Vein Coal Co. v. O'Hem, 8 Md. 197 ; 7 Cow. 53 ; Kane v. Hood, 13 Pick. 281 ; 
 Gibson v. Dnnnara, 1 Hill, S. C. 289 ; Eunkle v. Johnson, 30 111. 328 ; Stokes 
 2 Chit. Con. 11th Am. ed. 1087. But v. Burrell, 3 Grant, Pa. 241; Dana v. 
 a third person's interference will not King, 2 Pick. 155; Brown u. Gammon, 
 thus avail the defendant. Bowery Nat. 14 Maine, 276 ; Howe v. Huntington, 
 Bank v. New York, 63 N. Y. 336. 15 Maine, 350 ; Hunt v. Livermore, 5 
 
 ' The measure of damages in this Pick. 395 ; Perry v. Wheeler, 24 Vt. 
 
 class of cases is ordinarily the difference 286 ; Savage Manuf. Co. v. Armstrong, 
 
 between the contract price and the mar- 19 Maine, 147; Leaird v. Smith, 44 
 
 ket value. CuUeu v. Bimm, 37 Ohio N. Y. 618 ; Mackay v. Dick, 6 App. 
 
 State, 236 ; Cockbura v. Ashland Lum- Cas. 251 ; Price v. Sanders, 39 Ark. 306 ; 
 
 berCo. 54Wis. 619. Under some facts, Stockton Sav. &c. Soc. u. Hildreth, 53 
 
 therefore, the damages will be but nomi- Cal. 721 ; Hedge v. Gibson, 58 Iowa, 
 
 nal. Wire V.Foster, 62 Iowa, 114. 656. 
 
 581 
 
§ 1436 BREACH AND PERFOEMANCE. [BOOK V. 
 
 In reason, a tender of the deed, money, or other value, and 
 keeping the tender good, should be deemed enough ; unless, 
 from the nature of the thing to be done by the other party, 
 time is required, and then the needful time should be offered 
 also.^ Again, — 
 
 § 1434. Successive Steps. — If the interpreted contract de- 
 mands successive steps, now a step by the one party and then 
 a step by the other, whenever on the one side all is done 
 which is to precede performance on the other, the party of 
 the other side breaks it if he simply neglects to take his step, 
 though no demand on him is made ; but, while anything, 
 however slight, remains unperformed by the former party, 
 there is no breach by the latter .^ To illustrate, — 
 
 § 1435. Predetermining — (Election). — We have seen that, 
 under a contract in the alternative, the party who by its in- 
 terpreted terms is to take the step at which the choice of 
 ways presents itself, necessarily and of law elects by which 
 one the fulfilment shall be.^ One of the consequences where- 
 of is, that, if such party neglects to elect by fulfilling, the 
 right of choice passes thereupon to the other party, who may 
 sue for the breach of the alternative he prefers.* Another 
 consequence of the doctrine is its correlate ; namely, if the 
 contract, as interpreted, empowers one of the parties to elect, 
 in any particular, how it shall be fulfilled, such party must 
 take the first step by making the election ; until which, there 
 can be no breach by the other. Thus, — 
 
 § 1436. Pay in Specific Articles. — On one's promise to pay 
 a given sum to another in such specific things as the latter 
 may choose, or in goods at whatever time and place the latter 
 
 1 See Gushee w. Eddy, 11 Gray, 502, Cranch, 456; Bersch v. Sander, 37 
 503 ; Cobb v. Hall, 33 Vt. 233 ; Biggers Misso. 104 ; Niblett v. Herring, 4 Jones, 
 V. Pace, 5 Ga. 171 ; Hammond v. Gil- N. C. 262; Bishop v. Newton, 20 III. 
 more, 14 Conn. 479. 175; Abbott v. Gatch, 13 Md. 314; 
 
 2 Adams v. New York, 4 Duer, 295 ; Noble v. James, 2 Grant, Pa, 278 ; Hill 
 Helm V. Wilson, 4 Misso. 41 ; Burke o. v. Smith, .32 Vt. 433 ; Bollman v. Burt, 
 Wells, 50 Cal. 218 ; Watson v. Walker, 61 Md. 415 ; Reddick v. Gressman, 49 
 3 Fost. N. H. 471 ; Brewer v. Tysor, 3 Misso. 389. 
 
 Jones, N. C. 180; Wagenblast m. Mc- = Ante, § 785-787. 
 
 Kean, 2 Grant, Pa. 393; Downer v. * Ante, § 785; McNitt w. Clark, 7 
 
 I'rizzle, 10 Vt. 541 ; McCarren v. Mc- Johns. 465 ; Nesbitt v. Pearson, 33 Ala. 
 
 INulty, 7 Gray, 139 ; Pratt v. Law, 9 668. 
 582 
 
CHAP. LV.] 
 
 WHAT A BKBACH. 
 
 §143T 
 
 prefers, or at an indefinite time, the first step is necessarily 
 to make and announce the election, by particularizing the 
 articles, or the time or the place of their delivery. This de- 
 volves on the promisee ; and, until he does it, the promisor 
 has no occasion to make a tender, and is not suable.^ These 
 conditions attend most contracts in the form of promissory 
 notes payable in specific articles; whence it has become a 
 sort of general rule that a note of this kind does not become 
 due in money, and the foundation of a suit, until there have 
 been a demand and refusal.^ But the note is sometimes 
 drawn in terms leaving nothing for subsequent individualiza- 
 tion, or otherwise so as not to be within this principle, and 
 then an action without demand may be sustained on it, when 
 the time of payment has elapsed, unless the defendant has 
 duly tendered the articles.^ The adjudged cases on this 
 question are not uniformly consistent with one another.* 
 
 § 1437. Pay Money — (" On Demand "). — If, without qualifi- 
 cation, one promises to pay money to another, either generally ^ 
 
 1 Baker v. Stoaghton, 1 Oregon, 227 ; 
 Corbitt V. Stonemetz, 15 Wis. 170 ; 
 Newton v. Wales, 3 Kob. N. Y. 453 ; 
 Hambel v. Tower, 14 Iowa, 530 ; Wear 
 V. Jacksonville, &c. Railroad, 24 III. 593 ; 
 Morey v. Enke, 5 Minn. 392 ; Posey v. 
 Scales, 55 Ind. 282. But see Bixby v. 
 Whitney, 5 Greenl. 192. 
 
 2 Greenwood v. Curtis, 6 Mass. 358, 
 364 ; Smith v. Leavensworth, 1 Root, 
 209 ; Dean v. Woodbridge, 1 Root, 191 ; 
 Johnson v. Baird, 3 Blackf. 153; Ste- 
 vens V. Adams, 45 Maine, 611; Lobdell 
 V, Hopkins, 5 Cow. 516; Dunn v. Mars- 
 ton, 34 Maine, 379 ; Chandler v. Wind- 
 ship, 6 Mass. 310; Wilmouth v. Patton, 
 2 Bibb, 280; Chambers v. Winn, Pr. 
 Dec. 2d ed. 166; Gnshee v. Eddy, 11 
 Gray, 502. But see Cobb v. Reed, 2 
 Stew. 444. 
 
 " Bernard v. Bernard, 1 Lev. 289 ; 
 Marshall v. Ferguson, 23' Cal. 65 ; 
 Wheeler v. Garsia, 5 Rob. N. Y. 280 ; 
 Stewart v. Morrow, 1 Grant, Pa. 204 ; 
 Wiley V. Shoemak, 2 Greene, Iowa, 205 ; 
 Plowman v. Riddle, 7 Ala. 775 ; Miller 
 ». McClain, 10 Yerg. 245; Yanhooser 
 
 V, Logan, 3 Scam. 389 ; Hardeman v. 
 Cowan, 10 Sm. & M. 486 ; Deel v. Ber- 
 ry, 21 Texas, 463; Perry v. Smith, 22 
 Vt. 301 ; Fleming v. Potter, 7 Watts, 
 380 ; Orr v. Williams, 5 Humph. 423 ; 
 Peck V. Hubbard, 11 Vt. 612 ; Cham- 
 bers V. Harger, 6 Harris, Pa. 15 ; Nipp 
 V. Diskey, 81 Ind. 214 ; Fredenbnrg v. 
 Turner, 37 Mich. 402. 
 
 * See, in addition to the preceding 
 cases, Lakey v. Chadwick, 66 Misso. 
 622 ; Field v. Black, 42 Vt. 517 ; Phil- 
 lips V. Allegheny Car Co. 1 Norris, Pa. 
 368 ; Stack ;;. Charlotte, &c. Railroad, 
 10 S. C. 91 ; Saylor v. United States, 
 14 Ct. of CI. 453 ; Ragland v. Wood, 71 
 Ala. 145, 150 ; The State v. Mooney, 65 
 Misso. 494, 496. 
 
 6 Purdy V. Philips, 1 Dner, 369 ; 
 Payne u. Mattox, 1 Bibb, 164; Slack 
 V. Price, 1 Bibb, 272 ; Thompson v. 
 Ketcham, 8 Johns. 190 ; Columbia Bank 
 V. Hagner, 1 Pet. 455 ; Bailey v. Clay, 
 4 Rand. 346 ; Gibbs v. Southam, 5 B. & 
 Ad. 911 ; Farqnhar v. Morris, 7 T. R. 
 124; Kendal v. Talbot, 1 A. K. Mar. 
 321. 
 
 683 
 
§ 1438 
 
 BREACH AND PERFORMANCE. 
 
 [book V. 
 
 or " on demand," ' it becomes due simultaneously with the 
 promise, — if, to pay on a specified future day, it is due 
 on such day, — and, in either case, there being nothing for 
 the promisee to do, the promisor must find him ^ if within 
 the State,^ and tender him the money ; in default whereof a 
 suit may be maintained against him, and no demand in fact 
 is necessary.* 
 
 § 1438. Payable Sunday. — The rule is familiar that a bill 
 or note, having days of grace, and falling due, grace included, 
 on Sunday, is payable on Saturday .^ But in ordinary con- 
 tracts, where the element of grace is not recognized, the rule 
 is by most opinions reversed ; Sunday is not counted, and the 
 performance or breach takes place on Monday,® though some 
 hold Saturday to be the day.^ There are analogies for reject- 
 ing Sunday from the computation of time, it being a day on 
 which business is forbidden,^ following which we may well 
 require performance to be postponed till Monday ; besides, 
 where the day is in terms fixed by the parties, how can a 
 court change their words, and make it earlier than they 
 have done ? ^ 
 
 1 Ante, § 1354 ; 2 Saund. Wms. ed. 
 63 d, note ; Omohundro v. Omohundro, 
 21 Grat. 626 ; Capp v. Lancaster, Cro. 
 Eliz. 548 ; Cotton v. Reavill, 2 Bibb, 99 ; 
 Pnllen v. Chase. 4 Pike, 210 ; Thomson 
 tj. Butler, Cro. Eliz. 721 ; Kingsbury ». 
 Butler, 4 'Vt. 458 ; Brett v. Ming, 1 Fla. 
 447 ; Ross v. Lafayette, &c. Railroad, 6 
 Ind. 297. The distinction in the books 
 is, that, "where a mere duty is promised 
 to be paid upon request, there needs no 
 actual request; but, where a collateral 
 sum is promised to be paid upon request, 
 there must be an actual request." Birks 
 V. Trippet, 1 Saund. Wms. ed. 32, 33 6. 
 And see Blackwell v. Fosters, 1 Met. 
 Ky. 88 ; Massey v. Sladen, Law Eep. 4 
 Ex. 13 ; Moore v. Shelley, 8 App. Cas. 
 285. 
 
 ^ Kidwelly v. Brand, 1 Plow. 69, 71 ; 
 Sage V. Ranney, 2 Wend. 532 ; Sanders 
 V. Norton, 4 T. B. Monr. 464 ; Pomeroy 
 V. Ainsworth, 22 Barb. 118. 
 
 » Co. Lit. 210 5; 2 Chit. Con. lUh 
 584 
 
 Am. ed. 1069 ; Littell u. Nichols, Hardin, 
 2d ed. 71 ; Gill v. Bradley, 21 Minn. 15; 
 Smith V. Walton, 5 Honst. 141. 
 
 * Langston v. South Carolina Rail- 
 road, 2 S. C. 248 ; O'Connor v. Dingley, 
 26 Cal. 11 ; McDonald «. Gray, 11 Iowa, 
 508 ; Wheeler v. Garsia, 5 Rob. N. Y. 
 280. And see Trinity Church v. Hig- 
 gins, 48 N. Y. 532. 
 
 s Parnum v. Powle, 12 Mass. 89 ; 
 Barlow v. Planters Bank, 7 How. Missis. 
 129 ; Sanders v. Ochiltree, 5 Port. 73 ; 
 Sheppard v. Spates, 4 Md. 400. See, 
 under the New Jersey statute, Hagerty 
 V. Engle, 14 Vroom, 299. 
 
 8 Salter v. Burt, 20 Wend. 205; 
 Stryker v. Vanderbilt, 3 Dutcher, 68 ; 
 Stebbins v. Leowolf, 3 Cush. 137 ; Caro- 
 thers V. Wheeler, 1 Oregon, 194. 
 
 ' Kilgour V. Miles, 6 Gill & J. 268. 
 ' Bishop Written Laws, § 110 c. 
 
 9 Limitations. — Consistently with 
 this view it is held that, where the law 
 fixes the time within which an act shall 
 
CHAP. LV.] WHAT A BREACH. § 1440 
 
 § 1439. When Suit. — A suit at law is maintainable only- 
 after the cause of action is fully consummated.^ And this is 
 determined by reckoning the day of performance entire, re- 
 jecting fractions of the day ; ^ so that the party who is to pay 
 or otherwise fulfil has the whole day for it, and a suit for the 
 breach cannot be instituted till the next day.^ Negotiable 
 paper furnishes a partial exception to this rule ; as to which, 
 if payment thereon is demanded at a reasonable hour on the 
 last day of grace, and refused, an action may then be com- 
 menced ; though, without such demand, it cannot be.* This 
 exception does not extend to money promised on any other 
 sort of contract.^ 
 
 § 1440. The Doctrine of this Chapter restated. 
 
 A contract fully executed on one side is violated if the 
 party on the other simply fails to do what it requires of him. 
 But where there are mutual and dependent promises, so 
 long as the one party leaves undone anything, even though 
 minute, which must precede the doing by the other, the lat- 
 ter's non-doing cannot constitute a breach. Each, to put the 
 other in default, must himself take every step which ante- 
 dates the one the non-taking whereof by the other is the 
 matter of his complaint. Or, if the steps are to be simulta- 
 neous, neither can sue the other without first tendering his 
 step, though he need not actually take it during the other's 
 refusal. One who, before the time for performance, finds 
 himself disabled through poverty, has not thereby violated 
 his contract ; this sort of breach can occur only on the day. 
 
 be done, and it expires on Sunday, a vis v. Eppinger, 18 Cal. 378 ; Thomas 
 
 doing on Monday will be too late. Ha- v. Shoemaker, 6 Watts & S. 179 ; Webb 
 
 ley V. Young, 134 Mass. 364; Allen v. v. Fairmaner, 3 M. & W. 473. 
 Elliott, 67 Ala. 432. * Greeley v. Thurston, 4 Greenl. 479 ; 
 
 1 Ante, § 13.54 ; Wadley v. Jones, 55 Estes v. Tower, supra ; Ammidown u, 
 Ga. 329 ; Nickerson v. Babcock, 29 111. Woodman, 31 Maine, .580. But see, as 
 497 ; Blevins v. Alexander, 4 Sneed, to New York, Continental Nat. Bank v. 
 Tenn. 583 ; Moore v. Dickerson, 44 Ala. Townsend, 87 N. Y. 8, 10 ; and Texas, 
 485. Watkins v. Willis, 58 Texas, 521. 
 
 2 Ante, § 1340, 1341. « Harris v. Blen, 16 Maine, 175. 
 8 Estes V. Tower, 102 Mass. 65 ; Da- 
 
 585 
 
§ 1440 BREACH AND PERFORMANCE. [BOOK V. 
 
 But, if one agrees to do what he has not the legal capacity 
 for, and the other is not a partaker with him in the attempt 
 to violate the law, — or if, having then the capacity, he after- 
 ward does what incapacitates himself, — or, if he puts the 
 thing contracted about beyond his control, so that his inabil- 
 ity to perform on the appointed day is now demonstrated, — 
 or, if he signifies to the other party that he will not fulfil, — 
 in any one of these cases, a breach is committed, and an 
 action may be maintained by the other party, though the 
 time set down in the contract for performance has not arrived. 
 The whole of the designated day is allowed for the doing ; 
 and, except on a bill or note after a demand, the suit can- 
 not be brought until the next day. 
 586 
 
CHAP. LVI.] CEEATED APTEE BEBACH, ETC. § 1442 
 
 CHAPTER LVI. 
 
 THE CONTRACT "WHICH THE LAW CREATES AJPTEK A BKEACH, 
 IMPBEFECT PEKFOEMANCE, OK ABANDONMENT. 
 
 § 1441. Already — Here. — The subject of this chapter has 
 already been largely under review, at different places, in its 
 relations to the varying topics elucidated in the foregoing 
 pages. Most of these places are referred to in a note.^ The 
 author will here present a condensed view of it ; and, avoid- 
 ing repetitions, rely upon the reader's consulting, in connec- 
 tion with this chapter, the other places. 
 
 § 1442. On what Principles. — If never, after a contract has 
 been broken, imperfectly performed, or abandoned, any legal 
 adjustment of the rights of the parties were permitted except 
 under the contract itself, as explained in the last chapter, 
 great injustice would not unfrequently follow. One whose 
 property or services had gone, either at the making of the con- 
 tract or afterward, to enrich another and impoverish himself, 
 might then be without remedy, however small the blame on 
 his side or the merit on the other. To avoid which, the law 
 in proper circumstances creates a eontract,^ to supplement or 
 stand in the stead of the one which the parties had made. 
 And therein it proceeds on the principle, that he who has 
 conferred upon another a benefit not meant to be gratuitous 
 is entitled to be paid therefor,^ except where some other prin- 
 ciple interposes with superior force. There are, on this 
 head, some difficulties and judicial differences, — all, or most, 
 
 1 Ante, § 93, 188, 217, 226, 227, 232, ^ Ante, § 181 et seq. 
 
 233, 235-237, 286, 301,' 682, 818, 834, * Consult the places cited to the last 
 837-840, MO, 968-970, 1091-1 110, 1219, section. 
 1221-1225, 1236, 1283, 1346, 1421. 
 
 587 
 
§ 1444 BREACH AND PERFORMANCE. [BOOK V. 
 
 upon the question whether, under given facts, the rule or 
 some exception to it shall prevail. Moreover,. — 
 
 § 1443. Nature of Authorities — (Law's Growth). — In a 
 large proportion of those reported cases wherein a suit on 
 the express contract has failed, the question whether or not 
 there is still a remedy on one which the law created, is not 
 adverted to ; and, pretty plainly, often a partj'^ entitled to 
 the latter remedy abandons his cause in a needless despair. 
 Besides, if, as is commonly said, the law grows under judicial 
 culture,! that of the present topic has had its less and more 
 mature states, and even yet it remains unduly green and its 
 fruitage imperfect ; so that what would not have been possi- 
 ble to litigants at an earlier period of its growth may be real- 
 ized now, and still more may be within their grasp not many 
 years hence. The law of the subject, therefore, can be but 
 imperfectly — 
 
 § 1444. Defined. — Whenever a contract has been receded 
 from, performed so imperfectly that a suit on it cannot be 
 maintained, or broken beyond repair, if there is in the hands 
 of one of the parties any value which was transmitted to him 
 from the other at its inception or in the course of any doing 
 under it, over and above what he may be entitled to retain 
 because of the other's fault relating thereto, he should return 
 it to the other, failing which the other may recover it of 
 him ; ^ unless the suit for its recovery discloses a wrong in 
 the plaintiff in the matter complained of — for example, in 
 wilfully and without cause abandoning the contract — to a 
 degree precluding him from a standing in court,^ or unless 
 
 1 Ante, § 6, 7, 10, 1123-1125, 1132. Ala. 108; Pratt v. Law, 9 Cranch, 456; 
 
 2 Places referred to ante, § 1441 ; Hall v. Cannon, 4 Harring. Del. 360 ; 
 Ladue v. Seymour, 24 Wend. 60 ; Der- Lee v. Ashbrook, 14 Misso. 378 ; Draper 
 mott V. Jones, 23 How. V. S. 220; Der- r. Randolph, 4 Harring. Del. 454; Lo- 
 mott V. Jones, 2 Wal. 1 ; Merrill v. max v. Bailey, 7 Blackf. 599 ; Allen v. 
 Ithaca, &c. Eailroad, 16 Wend. 586 ; Wills, 4 La. An. 97 ; Hargrave v. Con- 
 HoUinsead v. Mactier, 13 Wend.' 275 ; roy, 4 C. E. Green, 281 ; Preston v. 
 Whipple V. Dow, 2 Mass. 415 ; Stewart Pinney, 2 Watts & S. 53 ; Wade v. Hay- 
 V. Craig, 3 Greene, Iowa, 505 ; Arthur cock, 1 Casey, Pa. 382 ; Tunno v. Rob- 
 V. Saunders, 9 Port. 626; Thompson v. ert, 16 Fla. 738. 
 
 Purcell, 10 Allen, 426 ; Hayward v. « Ante, § 835 ; 2 Bishop Mar. & 
 
 Leonard, 7 Pick. 181 ; Bassett v. San- Div. § 75 ; Dermott v. Jones, 2 Wal. 
 
 born, 9 Cush. 58 ; Thomas v. Ellis, 4 1 ; Niblett v. Herring, 4 Jones, N. C. 
 588 
 
CHAP. LVI.] CREATED AFTER BREACH, ETC. § 1445 
 
 prohibited by reason of the original contract having been 
 unlawful ^ or fraudulent,^ or unless the bestowal of the bene- 
 ficial thing was against the will of the recipient,^ and its 
 return is impracticable,* or unless some other positive rule of 
 law or legal procedure forbids. 
 
 § 1445. As to ■which — (intent in Imperfect Performance). — 
 By consulting our previous elucidations,^ the practitioner will 
 see that there are on this question, and particularly as to the 
 nature and extent of the wrong in the plaintiff which will 
 preclude an action for benefits conferred in departure from 
 the terms of the contract,^ judicial differences rendering im- 
 perative a vigilant looking into the decisions in his own 
 State.^ The author submits that, in natural equity, and 
 especially in juridical reason,^ if>».of mere perverseness, and 
 from no real or supposed necessity, a party violates or aban- 
 dons his contract after having gone part way in conferring 
 benefits on the other party, he confirms to the other what 
 has thus been transmitted, and he can maintain no action 
 therefor ; but, if his short-coming was induced by an honest 
 mistake of facts, or if he thought he was performing while he 
 was not, or if he acted through ignorance, or poverty, or 
 other force with which he could not contend, or through 
 inadvertence short of wilful wrong, he may have back what 
 the other party, after first being fully inclemnified for the 
 partial failure to perform, has gained over and above what 
 would have been his gains from an exact and full doing. To 
 
 262 ; Dula v. Cowles, 2 Jones, N. C. ^ Consult, for example, analogies de- 
 
 454; Martin v. Schoenberger, 8 Watts & livable from ante, § 188, 481-483, 489, 
 
 S. 367 ; Lewis v. Esther, 2 Cranch C. C. 583 ; Woolley v. Staley, 39 Ohio State, 
 
 423 ; Bajard v. McLane, 3 Barring. 354 ; Brewster v. Burnett, 125 Mass. 
 
 Del. 139; Brown v. Kimball, 12 Vt. 68; Lane w. Hogan, 5 Yerg. 290 ; Mayer 
 
 617 ; Malbon v. Birney, 1 1 Wis. 107. v. New York, 63 N. Y. 455, 457 ; Devine 
 
 1 Ante, § 471,472,476-478, 487, 627, v. Edwards, 87 111. 177; Bishop v. 
 
 629. Brown, 51 Vt. 330. Money which in 
 
 ^ Ante, § 683. equity and good conscience belongs to 
 
 'Ante, §211; Mulligan v. Kenny, one may be recovered of another holding 
 
 34 La. An. 50. it, on the ground of a promise created 
 
 * Ante, § 940. by the law. Bahnsen v. Clemmons, 79 
 
 ^ Cited ante, § 1441. N. C. 556; Harper v. Claxton, 62 Ala. 
 
 " Ante, § 835. 46 ; Wiseman v. Lyman, 7 Mass. 286, 
 
 ' Consult, for example, Smith u. Bra- 288 ; Barnes v. Johnson, 84 III. 95. 
 
 dy, 17 N. y. 173. 
 
 589 
 
§ 1447 BREACH AND PERFORMANCE. [BOOK V. 
 
 hold otherwise would be to deprive an unfortunate or weak 
 man of what common justice and the ordinary justice of the 
 law pronounce to be his. The right grows, not out of the 
 express contract, but out of circumstances not in the con- 
 templation of the parties when it was made.^ 
 
 § 1446. In Conclusion. — These expositions might be car- 
 ried to great length, but they would involve so much of 
 partial or full repetitions of what has gone before that it is 
 deemed best they should here close. 
 
 § 1447. The Doctrine of this Chapter restated. 
 
 One who has conferred on another a benefit through a par- 
 tial or imperfect performance of a contract, which is aban- 
 doned, may ordinarily maintain an action therefor, founded, 
 not on the contract, but on a promise which the law creates. 
 Yet various circumstances, not necessarj' to be here re- 
 peated, will, each in its appropriate case, defeat this right. 
 
 1 In matter of authority, on one side ford, 34 Ind. 399 ; Gaffney v. Hayden, 
 and on the other, consult cases cited 110 Mass. 137 ; Krom v. Levy, 6 
 ante, § 1444; also Bush v. Jones, 2 Thomp. & C. 253, 4 Hun, 79; Roberts 
 Tenn. Ch. 190; Wolf v. Gerr, 43 Iowa, v. Wilkinson, 34 Mich. 129 ; Boyle v. 
 339 ; Flanders v. Putney, 58 N. H. 358; Parker, 46 Vt. 343 ; Andrews v. Port- 
 Bozarth v. Dudley, 15 Vroom, 304; land, 35 Maine, 475 ; Cardell «. Bridge, 
 Parker v. Steed, 1 Lea, 206 ; Goldsmith 9 Allen, 355 ; Clayton v. Blake, 4 Ire. 
 V. Hand, 26'" Ohio State, 101; Levy 497; Steeples w. Newton, 7 Oregon, 110; 
 V. Schwartz, 34 La. An. 209 ; Law- Powers v. Wilson, 47 Iowa, 666 ; Par- 
 son V. Hogan, 93 N. Y. 39; Ray v. cell b. McComber, 11 Neb. 209 ; Bersch 
 Haines, 52 111. 485 ; Meredith v. Craw- v. Sander, 37 Misso. 104. 
 690 
 
CHAP, LVII.J . UQUIDATED AND PENALTY. § 1461 
 
 CHAPTER LVII. 
 
 THE PROVISIONS FOR LIQUIDATED DAMAGES AND FOR A 
 
 PENALTY. 
 
 § 1448. Introduction. 
 1449-1454. Liquidated Damages. 
 1455-1460. Penalty. 
 
 1461. Doctrine of Chapter restated. 
 
 § 1448. How Chapter diviaed. — We shall consider, I. The 
 ProYision for Liquidated Damages ; II. The Provision for a 
 
 Penalty. 
 
 I. The Provision for Liquidated Damages ; that is, specifying 
 what shall be paid upon a Violation. 
 
 ' § 1449. Defined. — Liquidated damages are an ascertained 
 and certain sum ^ stipulated in a contract to be paid by a 
 party, should he violate it, in recompense to the other.^ 
 
 § 1450. Enforceable or not. — Such stipulation, if not in- 
 consistent with the main agreement, or contrary to the law 
 or its policy, or vitiated by fraud or the like, will be enforced 
 by the courts ; ^ otherwise, not.* Still, — 
 
 § 1451. Not favored. — Since natural equity is best satisfied 
 
 1 Clark V. Dntton, 69 HI. 521. * Fitzpatrick v. Cottingham, 14 Wis. 
 
 2 See 2 Story Eq. § 1318. 219 ; Sutton v. Howard, 33 Ga. 536 ; 
 » Lea V. Whitaker, Law Rep. 8 C. P. Brown v. Maulsby, 17 Ind. 10 ; Sessions 
 
 70; Carter v. Corley, 23 Ala. 612; u. Richmond, 1 R. X 298; ■Wambangh 
 
 Beale v. Hayes, 5 Sandf. 640 ; Cotheal v. Bimer, 25 Ind. 368 ; Gower v. Carter, 
 
 V. Talmage, 5 Selden, 551 ; Hinton v. 3 Iowa, 244 ; Bright v. Rowland, 3 How. 
 
 Sparkes, Law Rep, 3 C.P. 161 ; Crisdee Missis. 398. 
 V. Bolton, 3 Car. & P. 240 ; Hardee v. 
 Howard, 33 6a. 533. 
 
 591 
 
§ 1452 BREACH AND PEEFOEMANCE. [bOOK T. 
 
 by the payment of actual damages and no more, interpretation 
 leans against holding a sum in a contract to be liquidated 
 damages ; accepting this conclusion only when plainly the 
 parties so intend.^ Thus, — 
 
 § 1452. Liquidated or Penalty. — As between damages liqui- 
 dated and a penalty, the inclination is always toward the 
 latter; because so the payment will be made commensurate 
 with the injury,^ — a result which the parties may well be 
 presumed to have intended, rather than the other. And not 
 un&equently, observed Keating, J., they plainly "could not 
 have meant what they have apparently' said ; " as, " where 
 a number of things are stipulated to be done, it has been 
 held that the parties could not have meant that a large sum 
 should be payable as liquidated damages for a failure to per- 
 form one or more of them." In which case the court, giving 
 effect to their real purpose, will hold the sum to be only a 
 penalty .3 Though the very words of bargain are " liquidated 
 damages," they will yield in the construction to the true in- 
 tent as appearing from the whole instrument ; * being made, 
 in the proper case, to signify penalty ; ® and, on the other 
 hand, the word " penalty " is sometimes, on a view of the 
 combined stipulations, rendered liquidated damages.® In 
 some connections, the word "damages" alone will denote 
 such as are liquidated ; ^ so will " fixed and settled dam- 
 
 1 Shnte V. Taylor, 5 Met. 61, 67; ews v. Sharp, 3 Out. Pa. 560; Hough- 
 Cheddick v. Marsh, 1 Zab. 463 ; Baird ton v. Pattee, 58 N. H. 326 ; Williams 
 V. ToUiver, 6 Humph. 186; Halm v. v. Vance, 9 S. C. 344; Jones v. Bin- 
 Horstman, 12 Bnsh, 249. ford, 74 Maine, 439 ; Smith v. Wedg- 
 
 2 WalHs V. Carpenter, 13 Allen, 19, wood, 74 Maine, 457. 
 
 25 ; The State v. Dodd, 16 Vroom, 525 ; 6 Magee v. Lavell, Law Rep. 9 C. P. 
 
 Davis V. United States, 17 Ct. of CI. 107; Davis v. Freeman, 10 Mich. 188; 
 
 201. And see Fitzpatrick v. Cotting- Moore i>. Platte, 8 Misso. 467; Hahn v. 
 
 ham, 14 ,Wis. 219. Horstraan, 12 Bush, 249. 
 
 8 Lea w. Whitaker, Law Rep. 8 C. P. « Duffy v. Shockey, 11 Ind. 70; 
 
 70, 74; Chase v. Allen, 13 Gray, 42; Watt v. Sheppard, 2 Ala. 425. And 
 
 Gowen v. Gerrish, 15 Maine, 273; Hig- see Chamberlain v. Bagley, 11 N. H. 
 
 ginson v. Weld, 14 Gray, 165 ; Watt v. 234 ; Jackson v. Baker, 2 Edw. Ch. 
 
 Sheppard, 2 Ala. 425; Berry v. Wis- 471. 
 
 dom, 3 Ohio State, 241 ; Carpenter v. ' Pennsylvania Railroad t>. Reichert, 
 
 Lockhart, 1 Ind. 434 ; Thoroughgood 58 Md. 261 ; McCormick v. Mitchell, 57 
 
 V. Walker, 2 Jones, N. C. 15. Ind. 248. 
 
 « Ante, § 382-384, 400, 404 ; Math- 
 592 
 
CHAP. LVII.] LIQUIDATED AND PENALTY. § 1457 
 
 ages ; " ^ also, " stipulated damages " may mean the same.^ 
 Nor is any one of these words indispensable to either inter- 
 pretation ; but further specifications seem not to be required.^ 
 
 § 1453. Equity — will not relieve one from the legal liabil- 
 ity, under his contract, to pay liquidated damages ; * " pro- 
 vided always," says Story, " the damages do not assume the 
 character of gross extravagance, or of wanton and unreason- 
 able disproportion to the nature or extent of the injury." ^ 
 Moreover, — 
 
 § 1454. Specific Performance, — when within the equity 
 jurisdiction, will be enforced without reference to these col- 
 lateral stipulations ; it being immaterial, on this issue, whether 
 the contract provides for a penalty, for liquidated damages, 
 or for neither.^ 
 
 II. The Provision for a Penalty. 
 
 § 1455. Defined. — A penalty in a contract is a sum which, 
 by its terms, is to be forfeited by a party, should he break it, 
 to the other. 
 
 § 1456. By the Old Common Law, — as administered in the 
 common-law courts, a contract with a penaltj' could be sued 
 in an action of debt ; and, if in any one of its stipulations a 
 breach was shown, judgment would be rendered for the entire 
 sum.'^ But, — 
 
 § 1457. Relief in Equity. — By applying to an equity tribu- 
 
 ' Ivinson ». Althrop, 1 Wy. 71. ^ 2 Story Eq. § 1318. 
 
 2 Yetter v. Hudson, 57 Texas, 604. ^ j story Eq. § 715, 751 ; Hull v. 
 
 ' See further, for example, Couch v. Sturdivant, 46 Maine, 34 ; Plunkett v. 
 
 Couch, 65 Ga. 748; Scofield v. Tomp- Methodist Episc. Soc. 3 Cush. 561, 566; 
 
 kins, 95 III. 190; Savannah, &c. Rail- Ensign v. Kellogg, 4 Pick. 1; Fisher 
 
 road V. Callahan, 56 Ga. 331 ; Hooper v. v. Shaw, 42 Maine, 32. 
 Savannah, &c. Railroad, 69 Ala. 529; ' Gainsford v. Griffith, 1 Sannd. 51 
 
 Nevada v. Hicks, 38 Ark. 557 ; Lyman and notes ; Coates v. Hewit, 1 Wils. 80 ; 
 
 V. Babcock, 40 Wis. 503 ; Dullaghan v. Thompson v. Hunt, 3 Lev. 368 ; Shaw 
 
 Ktch, 42 Wis. 679; Phoenix Ins. Co. v. Worcester, 6 Bing. 385, 389. And 
 
 V. Continental Ins. Co. 87 N. Y. 400; see the statute of 8 & 9 Will. 3, c. 11, 
 
 Wallis V. Smith, 21 Ch. D. 243. § 8, which provides equally for sealed 
 
 * Westerman v. Means, 2 Jones, Pa. and simple contracts, showing that, in 
 
 97; Skinner v. White, 17 Johns. 357, the opinion of Parliament, there was 
 
 369. before no distinction. 
 38 593 
 
§ 1458 BREACH AND PERFORMANCE. [BOOK V. 
 
 nal, the party in default might have the penalty set aside, on 
 paying the money due, or otherwise fulfilling the contract. 
 Whereupon, — 
 
 § 1458. English Legislation — American. — For shortening 
 the processes of justice, in 1697, the English statute of 8 & 9 
 Will. 3, c. 11, § 8, provided, that, on the recovery of judgment 
 for a penal sum in any court of record, inquiry should be made 
 by a jury as to the amount of damages suffered from breaches 
 ■which had alreadj'^ transpired, on payment whereof the judg- 
 ment should simply remain a security against further breaches. 
 And, on there being such, the actual damage should, on 
 scire facias, be in like manner ascertained.^ Then, in 1706, it 
 was enacted by 4 Anne, c. 16, § 13, that, upon an action on a 
 bond with a penalty for the payment of monej', if " the de- 
 fendant shall bring into the court where the action shall be 
 depending all the principal money, and interest due on such 
 bond, and also all such costs as have been expended in any 
 suit or suits in law or equity upon such bond, the said money 
 so brought in shall be deemed and taken to be in full satis- 
 faction and discharge of the said bond." The date of these 
 statutes is subsequent to the earliest settlements in this coun- 
 try;^ still, being higiily remedial and beneficial, they were 
 accepted as common law in Maryland * and Pennsylvania ; ® 
 and, it is believed, in nearly^ all of our other States. And 
 there has been more or less American legislation to the hke 
 effect.'!' 
 
 ^ 2 Story Eq. § 1313, 1314 ; Peachy seding these English provisions. The 
 
 V. Somerset, 1 Stra. 447, 4.53 ; Skinner Massachusetts conn, speaking of an- 
 
 V. White, 17 Johns. 357 ; Thomson v. other section of this statute of Anne, 
 
 Harconrt, 1 Bro. P. C. 193. observes, that " this statute has always 
 
 ^ Such is the substance of a verbose been practised upon here." Bond v. 
 
 provision. And see further as to it, the Cutler, 10 Mass. 419, 421. 
 notes to Gainsford v. Griffith, 1 Saund. " See, and as to the form of the judg- 
 
 Wms. ed. 51, 57, et seq. ment, Campbell v. Pope, Hemp. 271; 
 
 8 Bishop First Book, § 56. Garnett v. Yoe, 17 Ala. 74; Toles v. 
 
 * Kilty Rep. Stats. 244, 246. Cole, 1 1 III. 562 ; Stose v. People, 25 
 
 * Report of Judges, 3 Binn. 595, 599, 111. 600 ; Eggleston k. Buck, 31 III. 254 ; 
 625. Wales v. Bogue, 31 111. 464 ; Cameron 
 
 ^ Not in Massachusetts, Sevey v. o. Boyle, 2 Greene, Iowa, 154; Whitney 
 
 Blacklin, 2 Mass. 541 ; or Maine, Bai- v. Slayton, 40 Maine, 224; Rubon v. 
 
 ley V. Rogers, 1 Greenl. 186, 190; be- Stephan, 25 Missis. 253; Fontaine v. 
 
 cause of early colonial legislation super- Aresta, 2 McLean, 127 ; Hoy v. Hoy, 44 
 
 594 
 
CHAP. LVII.] LIQUIDATED AND PENALTY. § 1461 
 
 § 1459. Damages above Penalty. — Plainly in reason, and, 
 at least, by a part of the decisions, in a suit for the penalty 
 itself, nothing can be recovered in excess of it and the added 
 costs.^ And, where the instrument in litigation contains only 
 a condition with a penalty to give it efEect, there is no rem- 
 edy besides this.^ But if there are covenants secured by a 
 penalty, the injured party has his election, either to proceed 
 on such covenants, and to recover for the breach of them 
 whatever damages he has suffered, which may be more 
 or less than the penalty, or to proceed for the penalty ; 
 and the adoption of the one course excludes the other.'* 
 There may be other distinctions of less importance ; and, 
 on the whole question, the cases seem not to be quite 
 harmonious.* 
 
 § 1460. More Conditions than One. — The penalty is for- 
 feited by a breach of any one of several conditions, if such 
 there are, on which it depends.® Thus, on a bond to pay 
 money by instalments, a lapse as to any one of them gives 
 the right of action.^ 
 
 § 1461. The Doctrine of this Chapter restated. 
 
 To the immediate stipulations in an agreement it is some- 
 times added, that, if it is broken, the delinquent party shall 
 pay to the other a sum named, in exact and final satisfaction 
 for the damages ; which, therefore, are called liquidated dam- 
 ages. This sort of arrangement, not for most cases quite 
 
 111. 469; Blakemore ». Wood, 3 Sneed, Laughlin v. Hutchins, 3 Ark. 207; 
 
 Tenn. 470; Cairnes v. Knight, 17 Ohio Martin v. Taylor, 1 Wash. C. C. 1. 
 State, 68; Trice v. Turrentine, 13 Ire. * Lyon v. Clark, 4 Selden, 148 ; Ar- 
 
 212; Walcott w. Harris, 1 R. I. 404; nold v. United States, 9 Cranch, 104; 
 
 Warren v. Gordon, 10 Wis. 499. Mower v. Kip, 6 Paige, 88 ; Sweem v. 
 
 ^ Branscombe v. Scarbrough, 6 Q. B. Steele, .5 Iowa, 352, 10 Iowa, 374, 376 ; 
 
 13, 8 Jur. 688; In re Wilson, 11 Stew. Farrar w. Christy, 24 Misso. 453; Carter 
 
 Ch. 205; Armstrong v. The State, v. Thorn, 18 B. Monr. 613; Baker v. 
 
 7 Blackf. 81. See Lonsdale v. Church, Morris, 10 Leigh, 284 ; Westbrook v. 
 
 2 T. R. 388. Moore, 59 Ga. 204. 
 
 2 Stearns v. Barrett, 1 Pick. 443, 450. « Mosfen v. Touchet, 2 W. Bl. 706. 
 
 ' Ante, § 784 ; Lowe v. Peers, 4 Bur. « Coates v. Hewit, 1 Wils. 80 ; Judd 
 
 2225, 2228 ; Perkins v. Lyman, 11 Mass. v. Evans, 6 T. R. 399 ; Talbot v. Hod- 
 
 76, 83; Stearns v. Barrett, supra; Mc- son, 7 Taunt. 251. 
 
 595 
 
§ 1461 BREACH AND PERFORMANCE. [BOOK T. 
 
 equitable, yet sometimes judicious, is not much favored by 
 the courts; still, Avhere it is clearly meant by the parties, 
 they will give it effect, unless for some reason special to the 
 case it is contrary to the ordinary justice of the law. On the 
 other hand, a penalty is never legally objectionable ; because 
 it only creates a fund out of which the actual damages, and 
 no more, will be paid. Practically, this form of contracting 
 is not often of special advantage to the parties, but there are 
 cases in which it may be wisely chosen, — a question mostly 
 depending on conveniences of the judicial procedure should 
 the bargain be broken. 
 596 
 
DOCTBINE OP VOLUME RESTATED. S 1464 
 
 THE DOCTRINE OP THIS VOLUME 
 RESTATED. 
 
 § 1462. There is no legal subject which better than the 
 present one illustrates that system of laws whereby, under 
 vaiying modifications in different localities,. nearly the entire 
 English-speaking people of the world are governed. How 
 it compares with other systems it is not proposed here to 
 inquire. 
 
 § 1463. It is a web woven from a warp of natural right 
 and justice, by passing through it, from time to time and 
 thread by thread, the limiting and compacting woof of tech- 
 nical rule. In other words, it is natural law, artificially 
 modified and defined. In still other words, it is the image 
 of justice which the governing power has hewn and shaped 
 from the rock of original truth. Law, as a pure human 
 creation, does not exist among us ; on the other hand, mere 
 abstract ethics do not constitute law. It is God's ethics 
 wrought by man into jurisprudence. Thus, — 
 
 § 1464. Contracting, which involves the making of prom- 
 ises from one to another, is as essential to the existence of 
 man in communities as the air he breathes. There can be no 
 social condition without it. And abstract justice, the rule of 
 ethics, or whatever else we call natural duty in such a case, 
 commands that he who promises shall perform. This is 
 warp, or natural law. But, in the multitude of human trans- 
 actions, there is abundant occasion for the interweaving with 
 it of a woof of technical rule. Shall the courts enforce every 
 promise which is binding in ethics? The jurisprudence of 
 the common law has, by its technical rules, — by its woof, — 
 answered, no. It requires a consideration or a seal. Also 
 statutes have, for various particular sorts of promise, made 
 
 697 
 
§ 1466 DOCTEINE OP VOLUME RESTATED. 
 
 writing essential. But natural ethics disregard the limita- 
 tions of a consideration, of the seal, and of writing. These 
 are parcel of the woof of technical rule. Again, — 
 
 § 1465. By the law of nature, every man is entitled to 
 manage his own affairs, and he is not compellable to have 
 even a benefit thrust upon him against his will. Out of this 
 doctrine proceeds the familiar one in the law of contracts, 
 that the parties, in order to be bound, must simultaneously 
 assent each to exactly the same thing as the other. This is 
 pure natural law. Viewed as warp, has it also a woof? It 
 is matter often adjudicated upon by the courts^ they have 
 defined the doctrine, and given, to it the same sort of exacti- 
 tude as to the technical rules. It is difficult to say that 
 herein they have changed the natural law ; the more precise 
 expi'ession is, that thej' have defined it. We may deem such 
 defining to be, in a certain sense, woof; but it is of the same 
 material as the original warp. And thus we see that the 
 woven web of the law which is enforced by the courts is, at 
 places, identical in its nature with natural law ; and that the 
 human jurisprudence simply adds to it the outward sanction. 
 
 § 1466. There can be no mutual consent without mutual 
 capacity. Yet natural law pronounces that a person without 
 capacity is still entitled to live. And often the arrangements 
 of society furnish the incapable person with no means of sub- 
 sistence except through contract. Here we have a conflict 
 in natural law. And thus we learn that, in all law, whether 
 natural or cultivated, the principles will at places antagonize 
 one another ; and then either the one must fully give way 
 to the other, or the two must, through a sort of compromise, 
 work out a result different from what either would alone. 
 For the present dilemma, and for various others of a similar 
 sort, our jurisprudence has devised what is termed a legal 
 fiction, or fiction of the law, in exception to the general rule 
 that there can be a contract only when the parties mutually 
 and simultaneously assent to the same thing. By this fiction, 
 the law, in circumstances where necessity or justice requires, 
 creates, as the expression commonly is in the present volume, 
 or presumes, as by many writers the idea is with less, pre- 
 698 
 
DOCTRINE OP VOLUME RESTATED. § 1468 
 
 cision enunciated, a contract ; in other and still less accurate 
 words, the law authorizes an insane person or an infant to 
 bind himself by contract for necessaries, when not otherwise 
 supplied. By which artificial woof, our cultivated jurispru- 
 dence makes strong and serviceable the warp of the natural 
 law, at a place of itself weak and inadequate. 
 
 § 1467. One of the greatest difficulties connected with the 
 practical working of the law of contracts is to determine the 
 consequence where two or a dozen principles, each indicating- 
 its own separate conclusion, present themselves, apparently 
 governing a paj-ticular question. Which one shall give way ? 
 Or shall they operate together, leading to a special result 
 different from what any one alone would produce ? In the 
 elucidations of this volume, the author has kept this ques- 
 tion constantly in mind, and has indicated the conclusion 
 wherever possible. For example, he has shown that, as 
 between the Statute of Frauds, which requires certain con- 
 tracts to be in writing, and the legal fiction which creates 
 certain contracts, the written rule gives way to the unwritten 
 fiction ; and the law as readily creates a contract within as 
 without the Statute of Frauds. In like manner, while real 
 estate can be voluntarily conveyed only by a writing sealed, 
 the law's estoppel may pass a title without even a word in 
 writing. To retrace here this sort of illustration through the 
 entire volume would involve too much repetition. 
 
 § 1468. It is not possible that there should be any com- 
 plete laying down of rules, whereb}"- to determine the prece- 
 dence of the principles where they thus come into conflict. 
 Yet practically this matter does not greatly abound in diffi- 
 culties, when approached by one who by reading has become 
 familiar with the general principles of the law, and their 
 combined workings. On the other hand, to one accustomed 
 to look at the law only as a conglomeration of detached 
 points, — whose studies are limited to digests, and to books 
 called treatises and commentaries while in fact only digests, 
 or to such as enunciate legal doctrine inaccurately or in 
 unharmonized fragments, — these difficulties are very great, 
 sometimes insurmountable. 
 
 599 
 
§ 1471 DOCTRINE OP VOLUME RESTATED. 
 
 § 1469. Legal doctrine does not consist alone of abstract 
 rules, but tbe principles for applying such rules are as impor- 
 tant a part of it as the other, and more difficult of acquisition. 
 And more difficult still is the calling of the rules to mind 
 in connection with the facts of a case under investigation. 
 The conflicts of judicial opinion, and the mistakes in decis- 
 ions, rendering the law inharmonious, obscure, or unjust, come 
 more from counsel and judges overlooking legal principles 
 which, if suggested, all would accept as true, than from any, 
 perhaps every, other source. 
 
 § 1470. Every student and every practising law5'er should, 
 first and most essential of all, cultivate the faculty for calling 
 to mind the governing principles, instantly on the suggestion 
 of given facts. A leading and indispensable method to which 
 is, in every inquiry, whether in the reading of legal treatises, 
 of digests, or of reported decisions, or in the investigation of 
 questions in practice, to connect with the principles illustra- 
 tive facts, and with every collection of facts the principles. 
 Of course, in reading the present book, he will distinguish 
 illustration from doctrine, and lay the two away in his 
 memory accordingly. Besides, if he reads with the highest 
 wisdom, he will not be satisfied simply with the author's 
 illustrations, but will invent or search out others of his own. 
 Having thus the inventive faculty constantly in exercise, 
 and keeping fact and doctrine always in juxtaposition in his 
 thoughts, he will be in a mental condition, if of the right sort 
 of natural ability, to have the doctrine suggest itself when- 
 ever the facts of a case are stated. 
 
 § 1471. These views do not constitute a very full response 
 to the title under which they stand, or rSsumi of the vol- 
 ume ; but they are all the author deems essential. The fur- 
 ther review can best be accomplished by a rereading. While 
 the law of contracts appears simple on a first approach, it is 
 found on a nearer inspection to have been so much and so 
 long wrought over by the hand of judicial culture that only 
 on the minute examination of its several parts can it be prop- 
 erty understood. 
 600 
 
INDEXES. 
 
INDEX TO THE CASES CITED. 
 
 NoiB. — The plaintiff's name stands first, except where it is the State, Commonwealth, Bex, 
 Begina, or the like ; then the defendant's is first. The references are to the sections. 
 
 , United States v., 393. 
 
 Aaron v. Mendel, 680. 
 Abbey B. Chase, 1U9. 
 
 u. Deyo, 1208. 
 
 Abbot V. Parsons, 611, 614^ 895, 918, 
 
 925, 930, 937, 938. 
 
 V. Wilbur, 266. 
 
 0. Williams, 83. 
 
 Abbott V. Baltimore, &c. Steam Packet, 
 
 1006. 
 
 V. Chase, 1057. 
 
 V. Cobb, 1078. 
 
 V. Converse, 898. 
 
 V. Creal, 233. 
 
 V. Button, 1127. 
 
 V. Gatch, 1434. 
 
 V. Gilchrist, 1316. 
 
 V. Shepard, 322. 
 
 V. Stratten, 1051. 
 
 V. Sworder, 45. 
 
 Abbotts V. Barry, 677. 
 Abeel v. Radcliff, 1249. 
 Abell V. Calderwood, 1237. 
 Abels V. McKeen, 1159. 
 Aberdeen Railway v. Blakie, 1022. 
 Abrahams v. Swann, 1360. 
 
 V. Weiller, 1099. 
 
 Abrams ?'. Buttles, 76. 
 Acheson v. Miller, 59, 216. 
 Acker v. Bender, 136. 
 Ackerman v. Cook, 1081. 
 Adair o. Egland, 751. 
 Adam v. Kerr, 1404. 
 Adams, In re, 1191. 
 
 V. Adams, 496. 
 
 V. Bean, 348. 
 
 V. Boies, 1064. 
 
 V. Bourne, 1094. 
 
 V. Clutterbuck, 1387. 
 
 V. Cosby, 217. 
 
 V. Fite, 903. 
 
 V. Flanagan, 1094. 
 
 Adams v. Fort Plain Bank, 1355. 
 
 V. Frye, 755. 
 
 V. Gay, 1373. 
 
 V. Hill, 795. 
 
 V. Honness, 1235. 
 
 V. Jones, 1354. 
 
 V. King, 416. 
 
 V. Lindsell, 328. 
 
 V. McMillan, 1243. 
 
 V. New York, 1434. 
 
 V. Nichols, 597. 
 
 V. Paige, 1202. 
 
 V. Power, 1171. 
 
 V. Robinson, 1121. 
 
 V. Ross, 926. 
 
 V. Ryan, 352. 
 
 V. Sayre, 1040. 
 
 V. Scales, 1245, 
 
 V. Stringer, 718, 719. 
 
 Adamson v. Hartman, 1167, 1168. 
 
 V. Jarvis, 216. 
 
 Addison v. Gandassequi, 1085. 
 
 Adlard v. Booth, 597. 
 
 Adler v. Friedman, 770. 
 
 Adrian v. Lane, 1062, 1423. 
 
 .^Etna Ins. Co. v. North W. Iron Co., 848. 
 
 Ager V. Duncan, 1203. 
 
 Abeam i'. Ayres, 324. 
 
 Aicardi v. Craig, 1239. 
 
 Aikin v. Bloodgood, 136. 
 
 Aimen v. Hardin, 1018. 
 
 Ainsworth v. Miller, 289. 
 
 Airey v. Okolona Sav. Inst., 288, 1100. 
 
 Akerly v. Vilas, 829. 
 
 Akin V. United States, 417. 
 
 Alabama, &c. Railroad v. Kidd, 449. 
 
 Albany City Sav. Inst. v. Burdick, 645. 
 
 Albee v. Winterink, 903. 
 
 Albright r. Teas, 70, 518. 
 
 Alciator v. Smith, 1000. 
 
 Alcinbrook v. Hall, 91. 
 
 Alcinous V. Nigreu, 1001. 
 
 eo3 
 
ALL 
 
 INDEX TO THE CASES CITED. 
 
 AND 
 
 Alcock V. Alcock, 976. 
 Alcorn v. Morgan, 176. 
 Alden v. Blague, 132. 
 Alderson v. Langdale, 751. 
 Alderton v. Buchoz, 1323. 
 Aldous V. Cornwell, 755, 759. 
 Aldiich V. Abrahams, 921. 
 
 V. Aldrich (135 Mass. 153), 372. 
 
 V. Aldrich (56 Vt. 324), 1409. 
 
 V. Ames, 1265. 
 
 V. Blaekstone, 541. 
 
 V. Jewell, 1258. 
 
 V. Price, 164. 
 
 V. Smith, 751. 
 
 Aldridge v. Decatur Branch Bank, 543. 
 
 V. Turner, 40, 1261. 
 
 Alexander v. Alexander, 355. 
 
 V. Caldwell, 708. 
 
 V. Comber, 1312, 1323. 
 
 V. llutcheson, 943. 
 
 y. Pierce, 721. 
 
 V. Sizer, 1119. 
 
 V. State, 675. 
 
 V. Wilkes, 357. 
 
 Alexandria Canal v. Swann, 1403. 
 Alfbrd y. Cobb, 215. 
 Alger V. Scoville, 1264. 
 
 V. Thachev, 126, 515. 
 
 Allda, The, 168. 
 Allardy. Smith, 1271. 
 Allegany w. Adams, 1420. 
 Allen V. Allen, 972. 
 
 y. Atkinson, 1418. 
 
 w. Berryhill, 973. 
 
 V. Bratton, 1390. 
 
 V. Bucknam, 57. 
 
 V. Burlington, 226. 
 
 y. Cooper, 1344. 
 
 V. Davis, 440. 
 
 V. Davison, 93. 
 
 V. Elliott, 1438. 
 
 V. Fiske, 1299. 
 
 y. Florence, 124. 
 
 V. Gardiner, 538. 
 
 y. Hammond, 587, 702. 
 
 V. Jarvis, 1316. 
 
 V. Knowlton, 783, 784. 
 
 y. McKean, 238. 
 
 y. Merchants Bank, 1393. 
 
 y. Moss, 1230. 
 
 y. Ogden, 1094. 
 
 y. Pancoast, 1330. 
 
 V. Pegram, 1077. 
 
 y. Poole, 925, 942. 
 
 ' y. Prater, 70. 
 
 V. Sayward, 277. 
 
 V. Suydam, 1121. 
 
 y. Waldegrave, 994. 
 
 V. "Webb, 828. 
 
 V. Wills, 1444. 
 
 V. Withrow, 1215. 
 
 604 
 
 Allen V. Woodward, 91. 
 Aller y. AUer, 127. 
 
 V. Cameron, 304. 
 
 V. Pennell, 1422. 
 
 Allis V. Billings, 616, 974, 975. 
 
 V. Read, 313. 
 
 , State v., 439. 
 
 Allison V. Hagan, 1203. 
 Allore V. Jewell, 735. 
 Allshouse V. Ramsay, 1384. 
 AUsopp V. Wheatcroft, 126, 517. 
 Almgren v. Dutilh, 376. 
 Alsept y. Eyles, 593. 
 Alsop V. Todd, 925. 
 Alston V. Boyd, 958. 
 Alsworth y. Cordtz, 930. 
 Altringer v. Capeheart, 75, 121. 
 Alves y. Hodgson, 1386. 
 Alvord V. Smith, 530. 
 Ambrose v. Kerrison, 237. 
 Amburger v. Marvin, 1280. 
 American Bank y. Baker, 1017. 
 
 y. Doolittle, 870. 
 
 American Bridge Co. v. Murphy, 176. 
 American & Co. v. Frank, 350. 
 American Emigrant Co. v. Clark, 390. 
 American Express Co. y. Pinckney, 413. 
 American Merchants Exp. Co. v. Milk, 
 
 1100. 
 Ames V. McCamber, 1389. 
 
 V. St. Paul, &c. Railroad, 1080. 
 
 Ames Iron Works v. Warren, 1397. 
 Amies v. Stevens, 593. 
 Ammidown v. Woodman, 1439. 
 Amonett y. Montague, 95, 1223. 
 Amore y. La Mothe, 1052. 
 Amos y. Allnutt, 393. 
 Amy V. Dubuque, 1354. 
 Ancona y. Marks, 849. 
 Anderson's Appeal, 783. 
 Anderson y. Ammonett, 922. 
 
 y. Armstead, 70, 695. 
 
 y. Baughman, 391. 
 
 y. Belcher, 1198. 
 
 V. Burnett, 653. 
 
 V. Coonley, 1092. 
 
 y. Drake, 1392. 
 
 V. Farns, 483. 
 
 V. Haskell, 827, 828. 
 
 V. Hayman, 1260. 
 
 y. Hill, 690. 
 
 V. Jefferson, 207. 
 
 y. Martindale, 863. 
 
 y. Powers, 1290. 
 
 V. Roberts, 616. 
 
 y. Smith, 909. 
 
 V. Soward, 465, 783. 
 
 y. Spence, 1265. 
 
 y. Van Alen, 1180. 
 
 V. Warne, 645. 
 
 — r- V. Weston, 178. 
 
AEG 
 
 INDEX TO THE CASES CITED. 
 
 ATT 
 
 Adding V. I/ery, 479, 547. 
 
 Andover, &c. Turnpike ». Hay, 1017. 
 
 Andre, Commonwealth v., 310. 
 
 Andreas v. Holcombe, 87. 
 
 Andress's Appeal, 1354. 
 
 Andi'ews v. iEtna Life Ins. Co. (85 N. Y. 
 
 3.34), 296. 
 0. Mtna Life Ins. Co. (92 N. Y. 
 
 596), 1109. 
 
 V. Allen, 1077. 
 
 V. Herriot, 1403, 1404. , 
 
 i>. Ives, 85. 
 
 V. Jones, 1269. 
 
 V. Kneeland, 1092, 1094. 
 
 V. Lyons, 295. 
 
 V. Montgomery, 141. 
 
 V. Portland, 1445. 
 
 V. United States, 208. 
 
 Angel V. Felton, 757. 
 
 1'. McLellan, 909. 
 
 V. Pownal, 1094. 
 
 Angellv. Duke, 1292. 
 
 Angler v. Webber, 520. 
 
 Anglesea v. Rugeley, 594. 
 
 Anglo-Egyptian Nav. Co. v. Bennie, 599. 
 
 Annan v. Merritt, 1237. 
 
 Anonymous (12 Abb. N. Cas. 458), 541. 
 
 (3Dy. 296 6), 991. 
 
 (15 East, 407), 1094. 
 
 (Holt, 272 ; 1 Salk. 264), 989. 
 
 (1 Ld. Rayra. 480), 894, 1338, 1340. 
 
 (Lofft, 398), 409. 
 
 (3 Mod. 248), 9,30. 
 
 (6 Mod 22), 1351. 
 
 (6 Mod. 27), 205. 
 
 (6 Mod. 187), 1125. 
 
 (7 Mod. .38), 114. 
 
 (12 Mod. 603), 120. 
 
 (1 Salk. 86), 1127. 
 
 (2 Salk. 603), 990. 
 
 (3 Salk. 195), 911. 
 
 Anspach v. Bast, 591. 
 
 V. Brown, 98. 
 
 Anthony v. Anthony, 173. 
 
 V. Herman, 1220. 
 
 Antoni !>. Belknap, 1056. 
 
 Aortson v. Ridgway, 660. 
 
 Appleby v. Meyers (Law Rep. 1 C. P. 
 
 615; 12 Jur. N. 8. 500), 588. 
 
 V. Myers (Law Rep. 2 C. P. 651), 
 
 588. 
 Appleman v. Fisher, 449. 
 Appleton V. Bascom, 214. 
 
 V. Binks, 994, 1070. 
 
 V. Chase, 76. 
 
 Arbnckle v. Biederman, 651. 
 Archer v. Marsh, 517. 
 Arden v. Patterson, 497. 
 Arfridson v. Ladd, 1077. 
 Argenbright v. Campbell, 707. 
 Argoll V. Cheney, 753. 
 
 Armendiaz v. Serna, 1386. 
 Armfield v. Tate, 506, 937, 943. 
 Armitage v. Widoe, 930, 1057, 1106. 
 Armor v. Cochrane, 881. 
 Armote v. Bream, 114. 
 Arms V. Ashley, 75. 
 
 V. Burt, 1327. 
 
 Armstrong v. Hayward, 874. 
 
 V. HufFstutler, 664. 
 
 V. Kerns, 1056. 
 
 V. Lester, 511. 
 
 V. McGhee, 347. 
 
 V. State, 1459. 
 
 V. Stokes, 1076. 
 
 V. Stovall, 1198. 
 
 V. Toler, 471, 1380. 
 
 Arneshy, Rex !.'., 203. 
 Arnold v. Dresser, 97. 
 
 y. Nye, 111. 
 
 V. Park, 52, 54. 
 
 V. Potter, 1388. 
 
 V. Richmond Iron Works, 974, 975. 
 
 V. Spurr, 1035. 
 
 V. United States, 1459. 
 
 Arnot );. Pittston, &c. Coal Co., 472, 513, 
 
 518. 
 Arrington v. Burton, 1175. 
 
 V. Porter, 1241. 
 
 Arrison v. Harmstead, 758. 
 
 Arter v. Byington, 627. 
 
 Arthur v. Saunders, 1 444. 
 
 Arundel, Rex v., 917. 
 
 Ashburner r. Parrish, 526. 
 
 Ashbury Railway, &c. Co. v. Riche, 1012, 
 
 1224. 
 Ashcraft v. De Armond, 970. 
 Ashcroft V. Butterworth, 323. 
 
 V. Crow Orchard Colliery, 579. 
 
 Asher v. Sutton, 1099. 
 Ashmole v. Wainwright, 725. 
 Ashton V. Freestun, 855. 
 Astley V. Reynolds, 725. 
 
 , United States i-., 1151. 
 
 Atcheson v. Mallon, 528. 
 Atkins V. Banwell, 213. 
 
 V. Sleeper, 1343. 
 
 V. Van Buren, 390. 
 
 Atkinson v. Bell (18 Texas, 474), 277. 
 
 V. Bell (8 B. & C. 277), 1316. 
 
 V. Hawdon, 757. 
 
 V. Ritchie, 590. 
 
 Atkyns v. Horde, 318, 396. 
 Atlanta, &c. Raili'oad v. Speer, 383. 
 Atlantic Dock Co. r. Leavitt, 203. 
 Atlee V. Backhouse, 722, 725. 
 
 V. Fink, 527. 
 
 Attix V. Pelan, 75. 
 Attorney-General v. Boston, 377. 
 
 V. Bouwens, 1186. 
 
 V. Ewelme Hospital, 415. 
 
 V. Jamaica Pond Aqueduct, 1012. 
 
 605 
 
BAG 
 
 INDEX TO THE CASES CITED. 
 
 BAL 
 
 Attorney-General v. Life and Fire Ins. 
 
 Co., 1009. 
 Attwood V. Munnings, 1059. 
 
 V. Small, 653. 
 
 Atwood V. Lucas, 1309. 
 
 Audenried v. Betteley, 1074. 
 
 Auditor v. Ballard, 332. 
 
 Auerbach «. Le Sueur Mill Co., 1012, 
 
 1023. 
 Augur V. Couture, 343. 
 Augusta Bank v. Augusta, 1 1 87. 
 Aultman, &c. Manuf. Co. v. Richardson, 
 
 117. 
 Aurora v. Cobb, 75. 
 Aurora Fire Ins. Co. v. Eddy, 414. 
 Austerberry J). Oldham, 1191. 
 Austin's Case, 1125. 
 Austin V. Fendall, 351. 
 
 1). Holland, 1148. 
 
 V. Loring, 290, 299. 
 
 V. Sawyer, 1296. 
 
 — ^ V. Searing, 1159. 
 
 Australasian Steam Nav. Co. v. Morse, 
 
 609. 
 Austria v. Day, 1370. 
 Authority to make Contract, In re, 988. 
 Avendano v. Arthur, 319. 
 Averbeck v. Hall, 493. 
 Avery v. Halsey, 484. 
 
 , Reg. v., 343. 
 
 Aves, Commonwealth p., 1378. 
 
 Await V. Eutaw Building Association, 
 
 630. 
 Axtel V. Chase, 833. 
 Ayer v, Hutchins, 485. 
 Ayers v. Adams, 1209. 
 Ayerst v. Jenkins, 509. 
 Ayliff V. Scrimsheire (1 Show. 46), 857. 
 AylofFe v. Scrimpshire (Carth. 63), 857. 
 Ayres o. Audubon, 1405. 
 V. Chicago, &c. Railroad, 48. 
 
 Babcock v. Fond du Lac, 615. ■ 
 
 V. Raymond, 331. 
 
 V. Read, 1303. 
 
 u. Thompson, 627. 
 
 V. Wilson, 76. 
 
 V. Wyman, 173. 
 
 Bach V. Owen, 1320. 
 Bachelder v. Fiske, 864. 
 Bachman «. Roller, 1360. 
 Backentoss v. Speicher, 667. 
 Backhouse v. Selden, 1389. 
 Backus V. Taylor, 1148. 
 Bacon w. Bowdoin, 251. 
 
 V. Bronson, 661. 
 
 V. Daniels, 153, 342. 
 
 V. Mississippi Ins. Co., 1009. 
 
 0. Rives, 1354. 
 
 V. Sondley, 1076. ' 
 
 606 
 
 Badcock v. Steadman, 356, 357. 
 Baddley v. Oliver, 465. 
 Badger v. Phinney, 902, 940. 
 
 V. Williams, 496. 
 
 Badon v. Bahan, 1230. 
 Bahnsen v. Clemmons, 1445. 
 Bailey's Appeal, 1216. 
 Bailey v. Buck, 492. 
 
 V. Bussing (28 Conn. 455), 59. 
 
 V. Bussing (29 Conn. 1), 93, 190. 
 
 V. Chapman, 1136. 
 
 V. Clay, 1437. 
 
 V. Day, 46, 50. 
 
 V. Hervey, 784. 
 
 V. Hill, 397. 
 
 V. Hope Ins. Co., 453. 
 
 V. Irwin, 1239. 
 
 V. Jackson, 1351. 
 
 V. King, 1109. 
 
 V. Ogden, 1249. 
 
 V. Rogers, 1458. 
 
 M. Smock, 653. 
 
 V. United States, 292, 294. 
 
 V. Walker, 40. 
 
 Baily v. De CreSpigny, 441, 590, 592, 
 
 594. 
 Bain v. Brooks, 1333. 
 
 !,•. Brown, 881. 
 
 V. Hunt, 141. 
 
 V. Lyle, 607, 608. 
 
 Bainbrigge v. Moss, 661. 
 
 Baird's Case, 1144. 
 
 Baird v. Blaigiove, 133, 137. 
 
 V. Tolliver, 1451. 
 
 Baker v. Bessey, 376. 
 
 V. Chambles, 1078. 
 
 V. Cordon, 520. 
 
 V. Dening, 345. 
 
 V. Farris, 493. 
 
 V. Freeman, 1045. 
 
 V. Haldeman, 900. 
 
 V. Haley, 393. 
 
 V. Heard, 855. 
 
 V. Holt, 323. 
 
 V. Holtpzaffell, 598. 
 
 V. Johnson, 594. 
 
 V. Kerr, 270. 
 
 V. Lovett, 918, 925. 
 
 V. Manufacturers Ins. Co., 582. 
 
 V. Morris, 1459. 
 
 V. Morton, 716, 718. 
 
 u. Painter, 611. 
 
 V. Pottmeyer, 520. 
 
 , State v., 922. 
 
 V. Stone, 903. 
 
 V. Stoughton, 1436. 
 
 V. Thayer, 238. 
 
 V. White, 917. 
 
 Balch V. Patten, 186. 
 Baldey v. Parker, 1318. 
 Baldwin o. Canfield, 1018. 
 
BAN 
 
 INDEX TO THE CASES CITED. 
 
 BAB 
 
 Baldwin v. Farnsworth, 795. 
 
 V. Flagg, 535. 
 
 D. Leonard, 1076. 
 
 V. Palmer, 1235, 1236. 
 
 I'. Rosenman, 651. 
 
 I!. Rosier, 925, 936. 
 
 , State v., 207. 
 
 V. Williams, 1315. 
 
 Baldy v. Stratton, 509. 
 Bales V. Weddle, 818. 
 Ball V. Ball, 1230. 
 
 V. Dunsterville, 111, 1047, 1151. 
 
 V. Foreman, 361. 
 
 V. Gilbert, 531. 
 
 V. Lively, 661. 
 
 Ballantine v. Gelding, 1401. 
 Ballard v. McKenna, 188, 233. 
 
 V. Walker, 26. 
 
 Ballew V. Clark, 971. 
 Ballon V. Prescott, 1417. 
 
 1'. Talbot, 1120. 
 
 Baltes V. Ripp, 284. 
 
 Baltimore v. Bschbach, 993, 1105. 
 
 V. Reynolds, 992, 993. 
 
 , State v., 991. 
 
 V. Williams, 1205. 
 
 Baltimore Coal Tar, &c. Co. v. Fletcher, 
 
 1080. 
 Baltimore, &c. Railroad v. Brady, 411. 
 
 V. Clark, 96. 
 
 V. Nesbit, 572. 
 
 V. Polly, 586. 
 
 , United States v., 1300. 
 
 Baltzen v. Nicolay, 247. 
 
 Bamber v. Savage, 1245. 
 
 Banchor v. Mausel, 479. 
 
 Bancroft v. Abbott, 211. 
 
 V. Dumas, 471. 
 
 Bane v. Detrick, 719. 
 
 Bangor Bank v. Treat, 870. 
 
 Bangor Boom Corp. v. Whiting, 1110, 
 1225. 
 
 Bangor Furnace Co. v. Magill, 417. 
 
 Bangor, &c. Railroad v. Smith, 560. 
 
 Bangs V. Hall, 1362. 
 
 V. Watson, 877. 
 
 Banister, In re, 663. 
 
 Bank of Augusta v. Earle, 1005, 1371, 
 1400. 
 
 Bank of Cape Fear v. Wright, 1078. 
 
 Bank of Columbia v. Patterson, 1016. 
 
 Bank of Commerce v. Bissell, 454. 
 
 V. Union Bank, 632. 
 
 Bank of Genesee v. Patchin Bank, 1083. 
 
 Bank of Orleans v. Torrey, 881. 
 
 Bank of Port Gibson v. Baugh, 858. 
 
 Bank of Rochester v. Gray, 111. 
 
 V. Monteath, 1077. 
 
 Bank of Rome v. Rome, 1187. 
 
 Bank of Scotland v. Christie, 862. 
 
 Bank of the State, State v., 572. 
 
 Bank of Tennessee v. OfScer, 1339. 
 Bank of United States v. Dandridget 
 1016. 
 
 V. Daniel, 704. 
 
 w. Donnally, 104. 
 
 V. Dunn, 374. 
 
 17. Macalester, 1189. 
 
 Bank of Utica v. Magher, 1083. 
 Bank of Washington v. Peirson, 1053. 
 Banks v. Crossland, 1240. 
 
 V. De Witt, 439. 
 
 V. Werts, 542. 
 
 Banks, The, v. Poitiaux, 1016. 
 Bannon v. Bean, 1292. 
 Banorgee ti. Hovey, 129, 876, 1045, 1152. 
 Barber v. Burrows, 348. 
 
 V. Lyon, 818, 833. 
 
 V. Terrell, 1204. 
 
 Barclay v. Breckinridge, 493. 
 Barden v. Southerland, 11, 1167. 
 Bardwell v. Roberts, 1 53. 
 Barfield v. Price, 680. 
 Barford v. Stnckey, 426. 
 Barger v. Miller, 1070. 
 Barickman v. Kuykendall, 834. 
 Baring v. Corrie, 1139. 
 Barker v. Bradley, 1264. 
 
 V. Bucklin, 1264. 
 
 V. Garvey, 1049. 
 
 V. Knickerbocker, &c. Ins. Co., 838. 
 
 V. Pittsburgh, 208. 
 
 V. St. Quintin, 146, 854. 
 
 , State v., 563. 
 
 V. Troy and Rutland Railroad, 767. 
 
 , United States v., 989. 
 
 Barkley v. Tarrant, 426. 
 Barksdale v. Elam, 608. 
 Barkworth v. Young, 606. 
 Barlow v. Planters Bank, 1438. 
 
 V. Smith, 90, 768. 
 
 - — . V. Wiley, 664. 
 
 Bamaby v. Barnaby, 941, 943. 
 
 Barnard v. Backhaus, 534. 
 
 V. Campbell, 284, 287. 
 
 V. Crane, 627. 
 
 V. German Amer. Seminary, 281 . 
 
 V. Macy, 1054. 
 
 V. Whipple, 1292. 
 
 V. Tates, 244. 
 
 Barnes v. Johnson, 1445. 
 
 u. Toye, 234, 909, 912, 913, 915. 
 
 Barnet v. Dougherty, 1292. 
 
 V. Smith, 157. 
 
 Barnett v. Barnes, 130. 
 
 V. Barnett, 963. 
 
 U.Nichols, 316,390. 
 
 V. Spratt, 737. 
 
 V. Stanton, 660, 833. 
 
 Barney !•. Keith, 255. 
 
 V. Saunders, 740. 
 
 V. Worthington, 405, 
 
 607 
 
BAT 
 
 INDEX TO THE CASES CITED. 
 
 BBC 
 
 Barns v. Hannibal, 1061. 
 
 V. Hatch, 355. 
 
 Barnum v. Barnum, 1396. 
 Barnwell v. Kempton, 1346. 
 Baron v. Placide, 384, 400. 
 Barr v. Gibson, 581. 
 
 V. Reitz, 1309. 
 
 V. Schroeder, 1051. 
 
 V. Van Duyn, 823. 
 
 Barrell v. Benjamin, 999. 
 
 V. Trussell, 1266. 
 
 Barrett y. Deere, 1101. 
 
 V. French, 719. 
 
 V. Hard, 1344. 
 
 Barrick u. Buba, 1000. 
 Barringer v. Warden, 76, 1261. 
 Barron v. Barron, 950. 
 
 V. Benedict, 153. 
 
 V. Kennedy, 1363. 
 
 V. Porter, 1180. 
 
 V. Tucker, 493. 
 
 Barrow v. Ker, 323. 
 Barry v. Boninger, 1136. 
 
 V. Law, 1244. 
 
 V. Merchants Exchange, 1006, 1008. 
 
 V. Nuckolls, 1159. 
 
 V. Page, 1080. 
 
 Barteau v. West, 1064. 
 Bartholomew v. Jackson, 220. 
 Bartlett v. Bailey, 911. 
 
 V. Bartlett, 1203. 
 
 V. Drake, 921. 
 
 V. Henry, 673. 
 
 V. Hoppock, 244. 
 
 V. Matson, 1247. 
 
 V. Vinor, 471. 
 
 V. Wells, 902. 
 
 Bartley v. Hodges, 1401. 
 
 Barton's Case, 943. 
 
 Barton v. Fitzgerald, 406. 
 
 V. Port Jackson, &c. Plank Eoad, 
 
 74. 
 Barwick v. English Joint Stock Bank, 
 
 1112. 
 Basford v. Pearson, 1168, 1304. 
 Bason v. King's Mountain Mining Co., 
 
 1018. 
 Bass V. Eandall, 1077. 
 Bassett v. Bassett, 1426. 
 
 V. Hughes, 426. 
 
 V. Sanborn, 1444. 
 
 Bast V. Byrne, 795, 1421. 
 Batard v. Hawes, 864. 
 Batchelder v. Hibbard, 1299. 
 Bateman v. Ashton-under-Lyne, 1013. 
 
 V. Mid- Wales Railway, 1013. 
 
 V. Pinder, 1362. 
 
 Bates V. Ball, 981. 
 
 V. Bates, 442. 
 
 V. Butler, 720. 
 
 V. Clifford, 530. 
 
 608 
 
 Bates V. Starr, 62. 
 Bath V. Freeport, 238. 
 Batstbrd i: Every, 536, 
 Battersby v. Smyth, 477. 
 Batty V. Carswell, 1094. 
 Baucum v. George, 376. 
 Baugh V. Walker, 740. 
 Baum V. Dubois, 1096. 
 Bavington v. Clarke, 918. 
 Baxendale v. Bennett, 1169, 1175. 
 Baxter v. Burfield, 861. 
 
 V. Bush, 901. 
 
 V. Clark, 1 146. 
 
 V. Duren, 1136. 
 
 V. Gray, 224. 
 
 V. Lamont, 1094. 
 
 V. Portsmouth, 232, 968, 970. 
 
 Bayard v, McLane, 1444. 
 Bayler v. Commonwealth, 394. 
 Bayley, Eex v., 869. 
 
 V. Taber, 471,489. 
 
 Baylis v. Dineley, 917, 934, 944. 
 Bayliss v. Pricture, 834. 
 Beach v. Covillard, 815, 
 
 V. MuUin, 1421. 
 
 V. Vandenburgh, 21 1. 
 
 Beadle v. Whitlock, 93. 
 Beale v. Hayes, 1450. 
 Beall V. McGehee, 705. 
 
 V. Ridgeway, 1261, 1266. 
 
 Beals r. Hill, 270. 
 Beaman v. Buck, 634, 1237. 
 
 V. Russell, 1265. 
 
 Bean v. Atwater, 401. 
 
 V. Burbank, 77. 
 
 V. Parker, 348. 
 
 V. Simpson, 1180. 
 
 V. Valle, 1247. 
 
 Beard v. Dennis, 516. 
 
 V. Kirk, 1105. 
 
 Bear'dslee v. Morgner, 1194. 
 
 V. Richardson, 64. 
 
 Beardsley v. Hall, 95. 
 
 V. Hotchkiss, 936. 
 
 V. Knight, 111. 
 
 Beattie v. Ebury, 1120. 
 Beaty v. Gingles, 1254. 
 
 V. Knowler, 1005. 
 
 Beauchamp v. Winn, 465. 
 Beaumont v. Greathead, 870. 
 
 V. Reeve, 44, 93, 509. 
 
 Beaupland v. McKeen, 300. 
 Beavan v. McDonnell, 970. 
 Beaver v. Armstrong, 1187. 
 
 V. McGrath, 1162. 
 
 Beawfage's Case, 121. 
 Bebee v. Moore, 1266. 
 Bebout V. Bodle, 651. 
 Beck 0. McGillis, 999. 
 
 , State v., 343. 
 
 V. Tarrant, 1354. 
 
BEM 
 
 INDEX TO THE CASES CITED. 
 
 BER 
 
 Beckham v. Drake, 1079, 1146. 
 Beckner v. Carey, 62. 
 Beekwith, In re, 1053. 
 -«— V. Butler, 959, 962. 
 
 V. Frisbie, 632, 725. 
 
 V. Talbot, 1249. 
 
 Becton v. Ferguson, 1330. 
 Bedell's Case, 42. 
 Bedford v. Brady, 830. 
 Bedow's Case, 115. 
 Bee Printing Co. v. Hiohborn, 835. 
 Beebe v. Wilkinson, 295. 
 Beecher !). Buckingham, 1198. 
 Beekman v. Frost, 359. 
 
 V. Wilson, 1189. 
 
 Beeler v. Bullitt, 903. 
 
 V. Young, 925. 
 
 Beer Company v. Massachusetts, 564. 
 Beers w.'Crowell, 1315. 
 Beeson v. Patterson, 414. 
 Beeston v. Beeston, 535. 
 
 , Rex v., 1089. 
 
 Beetem v. Burkholder, 679, 681. 
 Begbie v. Levy, 543. 
 
 V. Phosphate Sewage Co., 1203. 
 
 Behan, United States v., 1428. 
 Behn v. Burness, 663. 
 Behrens v. McKenzie, 233, 964, 970. 
 Belcher v. Belcher, 981. 
 
 V. Mulhall, 169. 
 
 Belden v. Hann, 1175. 
 
 V. Henriques, 660. 
 
 V. Meeker, 258. 
 
 Belfast V. Leominster, 93. 
 Belfast, &c. Railway v. Unity, 323. 
 Bell V. Bruen, 1371, 1390. 
 
 V. Byerson, 664. 
 
 I'. Cafferty, 245. 
 
 V. Chapman, 1001. 
 
 V, Cunningham, 1121. 
 
 V. Ellis, 667. 
 
 V. Gardiner, 58. 
 
 V. Henderson, 664. 
 
 V. Josselyn, 1117. 
 
 V. Lawrence, 705. 
 
 V. Morrison, 1359. 
 
 V. Packard, 1389. 
 
 V. Quick, 1170. 
 
 V. Quin, 471. 
 
 V. Twilight, 277. 
 
 V. Wood, 492. 
 
 Beller v. Block, 1133, 1134. 
 
 V. Jones, 958. 
 
 V. Marchant, 938. 
 
 Bellows V. Cheek, 830. 
 
 V. Russell, 528. 
 
 V. Sowles, 495. 
 
 Beloit Bank v. Beale, 1226. 
 Belt V. Stetson, 1420. 
 Belton V. Briggs, 930. 
 Bembridge, Eex v., 14. 
 
 39 
 
 Bemis v. Becker, 471. 
 
 V. Hoseley, 874. 
 
 V. Leonard, 1343. 
 
 Bender v. Belknap, 270. 
 
 V. Montgomery, 169. 
 
 V. Sampson, 51. 
 
 Benedict v. Bachelder, 832. 
 
 V. Beebee, 1292. 
 
 V. Miner, 799. 
 
 V. National Bank, 620, 671. 
 
 Benhara v. Bishop, 942, 943. 
 Beninger v. Corwin, 244. 
 Benjamin v. Dockham, 1032, 1043. 
 
 V. McConnell, 853. . 
 
 V. Zell, 1303, 1421. 
 
 Bennecke v. Connecticut Mut. Ins. Co., 
 
 800. 
 Bennehan v. Webb, 383, 414. 
 Benner, United States v., 998. 
 
 V. Van Norden, 63. 
 
 Benners v. Clemens, 1390, 1391. 
 Bennett, Ex parte, 1041. 
 
 V. Brurafitt, 345. 
 
 V. Davis, 930. 
 
 V. Farnell, 886. 
 
 V. Ford, 725. 
 
 V. Hull, 1313. 
 
 V. Isaac, 311. 
 
 V. Ives, 1117. 
 
 V. Judson, 661, 1112. 
 
 V. McLaughlin, 940. 
 
 V. Phelps, 634. 
 
 V. Pierce, 376. 
 
 V. Stoddard, 1054. 
 
 V. Wheeler, 1159. 
 
 V. Woolfolk, 480. 
 
 Benninghoff v. Agricultural Ins. Co., 
 
 1060. 
 Bennington Iron Co. v. Rutherford, 
 
 1006, 1008. 
 Bensell v. Chancellor, 971. 
 Benson v. Benson, 104, 105, 107. 
 
 V. Cowell, 826. 
 
 V. Matsdorf, 1 94. 
 
 V. Monroe, 630. 
 
 V. Paine, 877. 
 
 Bent V. Cobb, 881, 1039, 1131. 
 Bentley v. Doggett, 1061. 
 Benton v. Pratt, 1324. 
 
 V. Schulte, 1239. 
 
 Berdell v. Bissell, 56. 
 Beresford v. Browning, 864. 
 Bergamini v. Bastian, 520. 
 Bergen v. Bennett, 1054. 
 
 V. Ebey, 702. 
 
 Berger's Appeal, 1106. 
 
 Berkeley v. Hardy, 426, 1045, 1070. 
 
 Berkey v. Judd, 398, 1071. 
 
 Berkley v. Cannon, 980. 
 
 Berks and Dauphin Turnpike Road v. 
 
 Myers, 1010, 1017. 
 
 609 
 
BIN 
 
 INDEX TO THE CASES CITED. 
 
 BLA 
 
 Berkshire "Woollen Co. v. Proctor, 458. 
 Bernard b. Bernard, 1436. 
 Bernards v. Stebbins, HI. 
 Bernier v. Cabot Manuf. Co., 1280. 
 Bernstein v. Humes, 390. 
 BeroUes v. Ramsay, 909. 
 Berry v. Barnes, 1064. 
 
 V. Doreraus, 1283. 
 
 ■ V. Sowell, 709. 
 
 V. Wisdom, 382, 1452. 
 
 Berryman v. Cincinnati Southern Rail- 
 way, 525. 
 
 V. Hewit, 167, 382. 
 
 Bersch v. Sander, 1434, 1445. 
 Besford v. Saunders, 96. 
 Besshears v. Rowe, 153. 
 Bestor v. Roberts, 90. 
 Beswick i;. Swindells, 579, 608. 
 Bethlehem v. Annis, 1182. 
 
 V. Perseverance Fire Co., 186. 
 
 Bettesworth v. St. Paul's, 605. 
 Bettini v. Gye, 608. 
 Bettis V. Townsend, 1 73. 
 Belts V. Carroll, 904, 938. 
 
 V. Gibbins, 216. 
 
 Betzi;. Bryan, 1192. 
 Beveridge v. Hewitt, 534. 
 Bevers, State v., 310, 993. 
 Bevin v. Powell, 970. 
 Bickford v. Cooper, 400. 
 
 V. First National Bank, 1077. 
 
 Bickle V. Chrisman, 1354. 
 Biddis V. James, 471. 
 Biddle v. Carraway, 210. 
 
 V. Shippen, 1352. 
 
 Bidwell V. Catton, 57. 
 Bieber a. Beck, 321. 
 Bierbauer v. Wirth, 496. 
 ]3ierce v. Stocking, 70. 
 Bigelow V. Benedict, 534. 
 
 V. Grannis, 943. 
 
 V. Livingston, 1062. 
 
 V. Renker, 105.1. 
 
 V. Stilphen, 753, 754. 
 
 V. Willson, 1341. 
 
 Biggers v. Pace, 1433. 
 
 Biggins V. Champlin, 302. 
 
 Biggs V. Lexington, &c. Railroad, 1358. 
 
 Bigham v. Bigham, 169. 
 
 BIgler V. Flickinger, 664. 
 
 Bilbie o. Lumley, 462, 704. 
 
 Bill V. Biiment, 1243. 
 
 v. Barker, 1261. 
 
 Billings's Appeal, 305. 
 Billings V. Ames, 517. 
 
 ". Morrow, 848. 
 
 Billingsley v. Dempewolf, 1258. 
 Bills V. Comstock, 493. 
 
 V. Polk, 61. 
 
 Bingham v. Barley, 925, 942. 
 V. Kimball, 60. 
 
 610 
 
 Bingham v. Sessions, 722. 
 
 V. Stewart, 1077. 
 
 Binghamton Bridge, The, 559. 
 Birce v. Bletchley, 175. 
 Birckhead v. Cummins, 1302. 
 Bird V. Astcock, 593. 
 
 V. Decker, 345. 
 
 V. Kleiner, 662, 695. 
 
 V. Lanius, 1220. 
 
 V. McElvaine, 157. 
 
 V. Meadows, 502. 
 
 V. Muhlinbrink, 1316. 
 
 V. Munroe, 1243, 1323. 
 
 Birdsall v. Birdsall, 87. 
 
 V. Russell, 1189. 
 
 Birdsong v. Birdsong, 656, 658, 734, 741, 
 
 984. 
 Birkett v. Chatterton, 472. 
 Birks V. Trippet, 1437. 
 Bisel V. Hobbs, 1146. 
 Bishop V. Brown, 1445. 
 
 V. Fletcher, 273. 
 
 V. Morgan, 1167. 
 
 V. Newton, 1434. 
 
 V. Small, 666. 
 
 V. Stewart, 679. 
 
 V. White, 412. 
 
 Bissell V. JefFersonville, 561. 
 
 V. Spring Valley, 1014, 1023. 
 
 Bissig V. J3ritton, 1265. 
 Bivins V. Jarnigan, 509, 740. 
 Bixby V. Moor, 487. 
 
 V. Whitney, 1436. 
 
 V. Wilkinson, 454, 1420. 
 
 Bixler v. Ream, 768. 
 Black V. Hills, 928, 941. 
 
 K. Reybold, 1362. 
 
 V. Woodrow, 3 1 8. 
 
 Blackburn v. Mann, 1271. 
 
 Blackerby v. Holton, 42. 
 
 Blackman v. Dowling, 73. 
 
 Blacks V. Catlett, 686. 
 
 Blackstone v. Buttermore, 1050, 1051. 
 
 Blackwell v. Fosters, 1437. 
 
 V. Hamilton, 111. 
 
 V. Ketcham, 1174, 1175. 
 
 Blade v. Noland, 757. 
 Blades v. Free, 1053. 
 Blain, State v., 1421. 
 Blair v. Hardin, 248. 
 
 V. Wait, 295. 
 
 Blake v. Blake (7 Iowa, 46), 950. 
 
 V. Blake (56 Wis. 392), 830. 
 
 V. Nelson, 833. 
 
 !). Tucker, 268. 
 
 Blakeley v. Blakeley, 962, 975. 
 Blakeman v. Mackay, 1077. 
 Blakemore v. Wood, 1458. 
 Blakeney v. Goode, 1274. 
 Blakeslee v. Starring, 1216. 
 Blakey v. Dinsdale, 1320. 
 
BOB 
 
 INDEX TO THE CASES CITED. 
 
 BOS 
 
 Blalock V. Phillips, 228. 
 
 Blanchard v. Ellis, 277. 
 
 V. First Assoc, of Spiritualists, 211. 
 
 V. McDougal, 1237. 
 
 V. Russell, 1373, 1400, 1402. 
 
 V. Weeks, 1274. 
 
 Blanchard's Gun-stock Turning Fac- 
 tory V. Warner, 1006, 1008. 
 
 Blancky. Littell, 1280. 
 
 Bland v. Womack, 64. 
 
 Blanding v. Sargent, 1274. 
 
 Blane v. Proudfit, 1094. 
 
 Blankenship v. Stout, 942. 
 
 Blankley v. Winstauley, 377. 
 
 Blann v. State, 572. 
 
 Blasdell v. Bissell, 408. 
 
 Blattenberger v. Holinan, 683. 
 
 Blattmacher v. Saal, 1429. 
 
 Blenkicisop v. Clayton, 1320. 
 
 Blessey i'. Kearny, 273. 
 
 Blevius V. Alexander, 1439. 
 
 Blight V. Banks, 394, 830. 
 
 Blinn v. Chester, 52. 
 
 Bliss V. Brainard, 1378, 1383. 
 
 V. Connecticut, &c. Railroad, 960. 
 
 V. Matteson, 527. 
 
 V. Swartz, 50. 
 
 V. Thompson, 1292. 
 
 Blitz V. Union Steamb. Co., 787. 
 
 Block V. Elliott, 689. 
 
 Blodgett V. American Nat. Bank, 582. 
 
 V. Durgin, 1393. 
 
 Blood w. Enos, 818, 1431. 
 
 V. French, 1 134. 
 
 !'. Goodrich, 1 045. 
 
 Bloom V. McGrath, 1259. 
 
 V. Richards, 536. 
 
 Bloomer v. Bernstein, 827. 
 
 Blossom V. Barrett, 1429. 
 
 Blount V, Hawkins, 1265. 
 
 V. Robeson, 292. 
 
 Blunt u. Walker, 1016. 
 
 BIy V. Second National Bank, 59. 
 
 Blydenburgh v. Welsh, 664. 
 
 Boaler v. Mayor, 1 29. 
 
 Board of Education v. Greenebaum, 1016, 
 1020. 
 
 Boardman n. Cutter, 1315. 
 
 V. Gaillard, 451. 
 
 V. Gore, 1174. 
 
 V. Hayne, 1180. 
 
 V. Spooner, 449, 1249. 
 
 V. Williams, 775. 
 
 Boast r. Firth, 601. 
 
 Boiitright V. Wingate, 1269. 
 
 Bobbitt V. Liverpool, &c. Ins. Co., 165. 
 
 Bobo V. Hansen, 943. 
 
 Bocock V. Pavey, 1067. 
 
 Bodine v. Morgan, 720. 
 
 Bodley v. Ferguson, 399. 
 
 Boehm v. Engle, 1352. 
 
 Boehme v. Omaha Hotel, 1422. 
 Bogard v. Gardley, 1211. 
 Bogart V. De Bussy, 1070. 
 
 V. McClung, 97. 
 
 Boggs V. Lancaster Bank, 870. 
 Bogie V. Bogie, 830. 
 Bogle V. Hammons, 718. 
 
 V. Winslow, 1416. 
 
 Bohannon v. Combs, 1211. 
 
 V. Jones, 1265. 
 
 V. Pace, 1239. 
 
 Boies V. Vincent, 78. 
 Boinest v. Leignez, 1134. 
 Boit V. Maybin, 244. 
 Bole V. Horton, 12. 
 Boiling V. Munchus, 1 247. 
 BoUman v. Burt, 1434. 
 Bolt V. Dawkins, 137. 
 Bolton V. Carlisle, 124, 753. 
 
 V. Hillersden, 1109. 
 
 V. Toralin, 1234. 
 
 Bona V, Davant, 500. 
 
 Bonaparte v. Camden, &c. Railroad, 557. 
 
 Bond V. Aitkin, 1151. 
 
 V. Bond, 958, 962. 
 
 V. Bunting, 82. 
 
 V. Cutler, 1458. 
 
 V. Hays, 632. 
 
 Boner v. Mahle, 381. 
 Bonner v. Herrick, 825. 
 
 V. Young, 1354. 
 
 Bonncwell v. Jenkins, 319. 
 Bonney k. Smith, 1051. 
 Bonynge v. Field, 10H2. 
 Booker, Ex parte, 795. 
 Bool V. Mix, 925, 930, 938, 942. 
 Boone v, Clarke, 1052. 
 
 V. Moore, 416. 
 
 V. Ridgway, 711. 
 
 Booth V. Bank of England, 469. 
 
 V. Fitzer, 77. 
 
 V. Heist, 1260. 
 
 V. Smith (3 Wend. 66), 53. 
 
 K. Smith (3 Woods, 19), 757. 
 
 I'. Spuyten Duyvil Rolling Mill Co., 
 
 592. 
 
 V. Tvson, 401. 
 
 V. Wiley, 1100. 
 
 Boothby i: Scales, 259, 1063. 
 Boothe V. Fitzpatrick, 236. 
 Borcherling v. Katz, 426. 
 Borchsenius v. Canutson, 1261. 
 Borders v. Murphy, 1360. 
 Borel V. Rollins, 1062. 
 Borum v. Garland, 815, 836. 
 Bosley v. Shanner, 718, 719. 
 Bossard v. White, 1S57. 
 Boston V. Benson, 755. 
 
 V. District of Columbia, 217. 
 
 Boston Bank v. Chamberlin, 925. 
 Boston Ice Co. v. Potter, 1179. 
 
 611 
 
BOY 
 
 INDEX TO THE CASES CITED. 
 
 BEA 
 
 Boston Iron Co. v. Hale, 1098. 
 Boston, &c. Railroad, People u., 574. 
 Bostwiek v. Leach, 1292. 
 
 V. McEvoy, 360. 
 
 , People v., 358. 
 
 Bosworth t;. Sturtevant, 408. 
 Botkin V. Livingston, 738. 
 Bouchell V. Clary, 908, 916. 
 Bonghner v. Meyer, 531. 
 Boulton V. Dobree, 1000. 
 Boults V. Mitchell, 827. 
 Bourne v. Fosbrooke, 82. 
 
 y. Shapleigh, 319. 
 
 Boutelle v. Melendy, 627. 
 Boutwell V. O'Keefe, 807. 
 Bowden v. Bowden, 1204. 
 
 V. Johnson, 650. 
 
 Bowen v. Hoxie, 204. 
 
 V. Morris, 994. 
 
 V. Newell, 1393. 
 
 Bower v. Blessing, 321. 
 
 V. Cooper, 45, 399. 
 
 V. Swadlin, 869. 
 
 Bowers v. Bowers, 1294. 
 
 V. Briggs, 755. 
 
 V. Jewell, 752. 
 
 Bowery Nat. Bank v. New York, 1431. 
 Bowery Sav. Bank v. Clinton, 871. 
 Bowes V. Paulet, 1183. 
 Bowker v. Childs, 54. 
 
 V. Lowell, 123, 717. 
 
 Bowlby V. Bell, 1315. 
 Bowles V. Stewart, 660. 
 Bowman v. Cecil Bank, 1144. 
 
 V. Coffroth, .501, 502. 
 
 w. Conn, 12.30, 1292, 1296. 
 
 V. Hiller, 727. 
 
 V. Mitchell, 751. 
 
 V. Tallman, 1254. 
 
 V. Taylor, 274, 
 
 Bowne v. Mount Holly Bank, 873. 
 
 Bowry v. Bennet, 506. 
 
 Bowser v. Bliss, 517. 
 
 Boyce v. Grundy, 68S. 
 
 — ^ !•. Kalbaugh, 290, 300. 
 
 V. Smith, 958, 963. 
 
 Boyd n. Brotherson, 752. 
 
 V. Ellis, 1390. 
 
 V. Hawkins, 881. 
 
 V. Hind, 55. 
 
 V. Hitchcock, 53. 
 
 V. Satterwhite, 1060. 
 
 V. Siflfkin, 586. 
 
 V. Stone, 1129. 
 
 V. Whitfield, 243. 
 
 Boyden v. Boyden, 941. 
 Boyer V. Tressler, 1214. 
 Boyes v. Bluck, 407. 
 Boykin v. McLauchlin, 1094. 
 Boyle V. Agawam Canal, 597. 
 V. Guysinger, 1426. 
 
 612 
 
 Bovle V. Parker, 258, 1445. 
 — —v. Webster, 871. 
 
 !!. Zacharie, 552, 566. 
 
 Boynton v. Braley, 799. 
 Bozarth o. Dudley, 1445. 
 Bozeman v. Browning, 904, 936. 
 Bozon V. Farlow, 65. 
 Bracegirdle v. Heald, 1280. 
 Brachan v. Griffin, 46. 
 Brackett v. Evans, 1304. 
 
 V. Hoyt, 471. 
 
 V. Winslow, 854. 
 
 Brackney v. Shreve, 1081 . 
 Bradbury v, Keas, 830. 
 
 V. Morgan, 860. 
 
 Bradford v. Jenkins, 480. 
 
 V. Peckham, 65, 520. 
 
 V. Pitts, 408. 
 
 V. Williams, 1418. 
 
 Bradley v. Blodget, 1304. 
 
 V. Marshall, 165. 
 
 V. Pratt, 916. 
 
 V. Rea (14 Allen, 20), 542. 
 
 V. Rea (103 Mass. 188), 542. 
 
 Bradshaw v. Beard, 237. 
 
 V. Bradbury, 385, 404. 
 
 V. Branan, 838. 
 
 Bradstreet v. Oneida, 999. 
 
 B. Rich, 165. 
 
 Braiwell v. Weeks, 1000. 
 Brady v. Todd, 1097. 
 Bragg y. Pessenden, 1223. 
 
 V. Stanford, 75. 
 
 V. Wetzel, 869. 
 
 Brainard v. Holsaple, 830. 
 Brainerd v. Arnold, 702. 
 
 V. New York, &c. Railroad, 1187. 
 
 Braitch v. Guelick, 487. 
 Bramau v. Bingham, 356, 357. 
 Branch o. Burnley, 445. 
 
 V. Palmer, 378, 452, 1420. 
 
 Biandao v. Barnett, 1186. 
 Brandeis v. Neustadtl, 1237. 
 Brandon v. Brown, 940. 
 
 V. Forest, 688. 
 
 Brandon Manuf. Co. v. Morse, 342. 
 Branham o. San Jos^, 631. 
 Branscombe v. Scarbrough, 1459. 
 Branson v. Oregonian Railway, 1426. 
 Brant v. Virginia Coal, &c. Co., 294, 
 
 296. 
 Brantley v. Wolf, 903, 940, 942. 
 Brashier v. Gratz, 1237, 1347. 
 Brassell v. Williams, 53. 
 Brassey v. Dawson, 991. 
 Bray v. Gunn, 1225, 1226. 
 
 V. Kettell, 1076. 
 
 V. Wheeler, 898. 
 
 Brayshaw v. Eaton, 913. 
 Brayton v. Burchin, 942. 
 Brazee v. Bryant, 545. 
 
BBI 
 
 INDEX TO THE CASES CITED. 
 
 BEO 
 
 Breadman v. Coales, 1183. 
 Breaid v. Hunger, 316, 390. 
 Breathwit v. Rogers, 494, 495. 
 Breck v. Blanchaid, 721. 
 Breckenridge v. Oimsby, 274, 975. 
 Breed t>. Judd, 895, 921. 
 Bremer v. Curtis, 209. 
 Brennan v. Willson, 1088. 
 Breslin v. Brown, 528. 
 Brett 1). Ming, 1437. 
 Breverton's Case, 1183. 
 Brewer v. Bessinger, 51. 
 
 V. Brewer, 1237. 
 
 V. Broadwood, 827. 
 
 V. Dyer, 203. 
 
 0. Franklin Mills, 1330. 
 
 V. Harvy, 82. 
 
 V. Otoe, 567. 
 
 V. Tysor, 1434. 
 
 Brewster v. Burnett, 1445. 
 
 V. Hobart, 1067. 
 
 V. Kitchell, 594. 
 
 V. Silence, 1266. 
 
 V. Taylor, 1319. 
 
 Brice v. King, 1220. 
 
 ». Wilson, 888. 
 
 Brick Presb. Church v. New York, 594. 
 
 Bricker v. Hughes, 1296. 
 
 Bridgen v. Cheever, 205. 
 
 Bridges v. Eobinson, 665. 
 
 Briegel v. Moeller, 707. 
 
 Briggs's Appeal, 1351. 
 
 Briggs V. Ewart, 647. 
 
 V. Glenn, 765. 
 
 V. Partridge, 1070, 1079. 
 
 V. Sizer, 76. 
 
 V. Vermont Cent. Eailroad, 164, 
 
 764. 
 Brigham v. Eveleth, 238. 
 
 V. Peters, 1109. 1226. 
 
 Bright V. Lucas, 887. 
 
 w. Eowland, 1450. 
 
 , State II., 443. 
 
 Brightman v. Hicks, 1235. 
 Brinckerhoff v. Wemple, 238. 
 Brine v. Insurance Co., 439, 1395. 
 Brink w. Fay, 1416, 1417. 
 Brinkerhoffw. Olp, 376. 
 Brinkley v. Bethel, HI, 394. 
 
 V. Hann, 720. 
 
 Brinley v. Mann, 1071. 
 
 V. Tibbets, 784, 829. 
 
 Brisbane v. Adams, 528. 
 
 V. Dacres, 704. 
 
 Briscoe V. Reynolds, 751. 
 
 Bristow V. Sequeville, 1386. 
 
 British Linen Co. v. Drummond, 1409. 
 
 British North Amer. Bank v. Merchants 
 
 Bank, 13.54. 
 Britt V. Hays, 838. 
 Britton V. Angier, 1247, 1264. 
 
 Britton v. Turner, 835. 
 Brizick v. Manners, 686, 1237. 
 Broad i-. Munton, 651. 
 Broadhead v. Noyes, 1390, 1403. 
 Broadwell v. Broadwell, 705. 
 
 V. Getman, 1274. 
 
 V. Phillips, 709. 
 
 V. Stiles, 757. 
 
 Brockett v. Hammond, 187. 
 Brodie v. Barry, 1395. 
 Bromley v. Goodrich, 610, 616. 
 
 V. Holland, 1051. 
 
 Bronson v. Chappell, 1223. 
 
 V. Kinzie, 567, 572. 
 
 I). Stroud, 1258. 
 
 Brook V. Hook, 846, 847, 1225. 
 
 Brooker v. Scott, 909. 
 
 Brooklyn Gravel Eoad v. Slaughter, 
 
 1013. 
 Brooklyn Life Ins. Co. v. Bledsoe, 390. 
 Brookman's Trust, In re, 224. 
 Brooks V. Marbury, 353. 
 
 ». Minturn, 1080. 
 
 , People v., 995. 
 
 V. StoUey, 830. 
 
 V. Warwick, 676. 
 
 V. Wheelock, 164. 
 
 V. White, 53. 
 
 Brookshire v. Brookshire, 1050. 
 
 V. Voncannon, 1050. 
 
 Brouer v. Vandenburgh, 1035. 
 Broughton v. Fuller, 765. 
 
 V. Manchester Waterworks, 1013. 
 
 V. West, 755. 
 
 Brousseau v. Hudson, 593. 
 Brower v. Fisher, 963. 
 Brown i\ Bass, 784. 
 
 V. Beauchamp, 497. 
 
 V. Brine, 59, 61, 135. 
 
 V. Brown (3 Conn. 299), 963. 
 
 V. Brown (66 Maine,316), 351, 353, 
 
 361. 
 
 V. Brown (108 Mass. 386), 962. 
 
 V. Brown (47 Misso. 130), 1264. 
 
 V. Butchers and Drovers Bank, 343. 
 
 V. Caldwell (10 S & R. 114), 936. 
 
 V. Caldwell (23 W. Va. 187), 316. 
 
 V. Camden, &c. Railroad, 1390. 
 
 V. Dillahunty, 592, 594. 
 
 V. Duncan, 472. 
 
 V. Dwelley, 194. 
 
 V. Everhard, 766. 
 
 V. Feeter, 854. 
 
 V. Fitch, 1418. 
 
 V. Freeland, 1392. 
 
 V. Gammon, 1433. 
 
 V. Hartford Fire Ins. Co., 921. 
 
 V. Hazen, 1261. 
 
 V. Howard, 1357. 
 
 V. Johnson, 1342. 
 
 V. Kimball, 1444. 
 
 613 
 
BEY 
 
 INDEX TO THE CASES CITED. 
 
 BUR 
 
 Brown v. McCIanahan, 345. 
 
 V. McCune, 903. 
 
 V. Mahurin, 834. 
 
 V. Maulsby, 1450. 
 
 V. North, 689. 
 
 w. Peck, 726. 
 
 V. Pendleton, 1208. 
 
 , People V. (67 111. 435), 310. 
 
 , People V. (5 Wend. 590), 1011. 
 
 V. Perry, 187. 
 
 V. Pring, 736. 
 
 V. Reynolds, 356. 
 
 V. Rice, 321. 
 
 V. Royal Ins. Co , 606, 784. 
 
 V. Rundlett, 994. 
 
 V. State, 923. 
 
 V. Staton, 1134. 
 
 B. Strait, 1264. 
 
 V. Straw, 751. 
 
 V. Summers, 75. 
 
 V. Tucker, 298. 
 
 V. Wheeler, 296, 309. 
 
 V. Whipple, 1244. 
 
 0. Wiggin, 1140. 
 
 V. Witter, 833. 
 
 Browne v. Burton, 113. 
 Brownell v. Harsh, 63. 
 
 V. Winnie, 755. 
 
 Browning v. Beston, 414. 
 
 V. Owen, 1103. 
 
 V. Wright, 380, 406, 414. 
 
 Brownlee v. Hewitt, 662. 
 Broyles v. Lowrey, 1309. 
 
 II. Nowlin, 290. 
 
 Briibaker v. Taylor, 1351. 
 Bruce b. Davenport, 680, 832. 
 
 V. Flagg, 871. 
 
 V. Hastings, 1292. 
 
 — — B. Pearson, .321, 333. 
 
 B. Snow, 586. 
 
 V. Warwick, 905. 
 
 Bruen y. Marquand, 875. 
 Bruff B. Conybeare, 374. 
 Brugman b. McGuire, 869. 
 Bramble v. Brown, 1121. 
 Brumfield «. Palmer, 1347. 
 Bruner u. Wheaton, 23. 
 Brunhild v. Freeman, 317. 
 Brunn b. Schuett, 350. 
 Brunswick w. Hanover, 998, 
 Brush B. Barrett, 1354. 
 
 B. Carpenter, 1265. 
 
 Brusle v. Thomas, 328. 
 Bruton v. Wooten, 51. 
 Brutt B. Picard, 752. 
 Bryan's Appeal, 673. 
 Bryan b. Brazil, 50, 1082. 
 
 B. Foy, 50. 
 
 B. Reynolds, 499. 
 
 B. Robert, 1223. ' 
 
 V. Spurgin, 592. 
 
 614 
 
 Bryan v. Walton, 917. 
 Bryant b. Boothe, 664. 
 
 B. Booze, 544. 
 
 B. Crosby, 1296. 
 
 B. Hendricks, 1292. 
 
 V. Hunter, 176. 
 
 V. Pottinger, 921. 
 
 B. Richardson, 909. 
 
 B. Sears, 1420. 
 
 B. Wells, 1080. 
 
 Bryson v. Lucas, 1070. 
 
 Buchanan v. International Bank, 61. 
 
 B. Monroe, 1054. 
 
 B. Tracy, 178. 
 
 Bucher v. Ream, 1208. 
 Buck B. Pickwell, 1292, 1294. 
 
 V. Rawlinson, 478. 
 
 Bucket B. Church, 1362. 
 Buckingham b. Hauna, 266, 282. 
 
 B. Waters, 65. 
 
 Buckley b. Briggs, 1016, 1020. 
 Buckmaster b. Consumers Ice Co., 390. 
 
 B. Russell, 1362. 
 
 Bucknam v. Nash, 1312, 1317. 
 
 Biickner b. Smith, 937. 
 
 Bucksport B. Rockland, 898. 
 
 Buell B. Buckingham, 1008. 
 
 Buena Vista b. Iowa Falls, &c. Railroad, 
 
 310. 
 Buffalo Catholic Inst. b. Bitter, 1018. 
 Buffington v. Gerrish, 667. 
 Buffkin B. Baird, 1418. 
 Bnford v. Caldwell, 659. 
 
 , United States v., 1183. 
 
 Bugbee v. Haynes, 1420. 
 Bulkeley b. Wilford, 390. 
 Bulkley v. Derby Fishing Co., 1014. 
 
 B. Landon, 89. 
 
 B. Wilford, 409. 
 
 Bull «. Bull, 52, 56. 
 
 B. Faulkner, 1182. 
 
 V. Han-is, 1145. 
 
 B. McCrea, 1277. 
 
 B. Titsworth, 709. 
 
 Bullen B. Sharp, 1144. 
 BuUene w. Blain, 58. 
 Bullion w. Campbell, 1331. 
 Bullock B. Babeock, 901. 
 
 B. Caird, 1406. 
 
 Bunce, State v., 1396. 
 Bunch V. Hurst, 735. 
 Bunge B. Koop, 50, 1428. 
 Bunn V. Guy, 65, 517. 
 
 B. Prather, 590. 
 
 V. Winthrop, 125. 
 
 Burchard b. Dunbar, 1371. 
 Burchell v. Clark, 424. 
 
 ». Slooock, 1184. 
 
 Burchfield v. Moore, 753. 
 Burckhardt b. Burckhardt, 519. 
 Burge V. Cedar Rapids, &c. Railroad, 833. 
 
BUS 
 
 INDEX TO THE CASES CITED. 
 
 CAB 
 
 Burgen v. Straughan, 495. 
 Burgess v. Pollock, 963. 
 Burgett V. Teal, 679. 
 Barghart v. Angerstein, 909, 912. 
 
 V. Hall, 915. 
 
 Burk V. "Webb, 47. 
 Burke v. Allen, 966. 
 
 V. Noble, 873. 
 
 V. Wall, 249. 
 
 V. Wells, 1434. 
 
 Burkett v. Moses, 1182. 
 Burkham v. Daniel, 1417. 
 
 V. Mastin, 174. 
 
 Burkholder v. Plank, 119, 121. 
 Burks V. Hubbard, 1062. 
 Burleigh ». White, 1203. 
 Burlew v. Hillman, 1220. 
 Burley v. Russell, 902. 
 Burlingame v. Bi-ewster, 751. 
 Burnard v. Haggis, 901. 
 Burnell v. Maloney, 296. 
 Barnes v. Allen, 773. 
 Burnet v. Bisco, 77. 
 Burnett u. Blackmar, 1237. 
 
 V. Lynch, 203. 
 
 V. McCluey, HI. 
 
 Bumey v. Ball, 1274. 
 Burnham a. Ayer, 755. 
 
 V. Holt, 1087. 
 
 Burns;;. Hill, 921. 
 
 V. Lynde, 1167, 1168, 1170. 
 
 Burr V. Burton, 718. 
 
 V. Lewis, 1343. 
 
 V. McDonald, 1005. 
 
 V. Veeder, 632. 
 
 V. Willson, 666. 
 
 Burrill v. Nahant Bank, 1048. 
 
 V. Saunders, 50, 75, 795. 
 
 V. Watertown Bank, 700. 
 
 Burroughs v. Lowder, 393. 
 
 V. Richman, 734, 984. 
 
 Burrows v. Alter, 690. 
 
 V. Jemino, 1401. 
 
 Burrus v. Kyle, 1140. 
 Burson v. Huntington, 349. 
 Burt V. Cassety, 355. 
 
 V. Dutcher, 83. 
 
 V. Place, 497, 627. 
 
 Burtis V. Thompson, 1429. 
 Burton v. Blin, 449. 
 
 V. LeBoy, 44, 111. 
 
 V. Shotwell, 325. 
 
 Burwell v. Cawood, 862 
 Bush V. Barnard, 1360. 
 
 w. Bradford, 396. 
 
 V. Cole, 1134. 
 
 V. Holmes, 1319. 
 
 V. Jones, 1445. 
 
 V. Lathrop, 1180. 
 
 V. Linthicum, 921. 
 
 V. Marshall, 277. 
 
 Bush V. Nance, 1389. 
 
 V. Person, 277. 
 
 V. Watkins, 384, 1152. 
 
 Bushel V. Pasmore, 359. 
 Butchers, &c. Bank v. McDonald, 304. 
 Butchers, &c. Co. v. Crescent City Live- 
 stock, &c. Co., 564, 575. 
 Butler's Appeal, 664. 
 Butler V. Bohn, 383. 
 
 V. Breck, 201. 
 
 1'. Burleson, 517. 
 
 V. Butler, 840. 
 
 V. Cams, 647. 
 
 V. Lee, 542. 
 
 V. Mulvihill, 984. 
 
 V. Pennsylvania, 562. 
 
 V. Price, 'l035, 1363. 
 
 V. Rickets, 950. 
 
 V. Scofield, 83. 
 
 V. Smith, 348. 
 
 V. Widger, 408. 
 
 Butterfield v. Beall, 1045. 
 Butters v. Haughwout, 673. 
 Butterworth v. Volkening, 449. 
 Buttles, State v., 995. 
 Button V. Winslow, 1076. 
 Buttrick v. Allen, 141. 
 
 V. Holden, 1341. 
 
 Butts V. Huntley, 834. 
 
 V. Phelps, 1121. 
 
 Buxton V. Bedall, 1312. 
 
 V. Edwards, 1363. 
 
 Buzzell V. Bennett, 925. 
 Byard v. Holmes, 678, 685. 
 Byars v. Spencer, 361. 
 By assee v. Reese, 1 294. 
 Byerlee v. Mendel, 835. 
 Byers v. Bostwick, 834. 
 
 V. Chapin, 679. 
 
 V. Daugherty, 645. 
 
 V. McCIanahan, 1168, 1169. 
 
 Byington v. Moore, 352, 1216. 
 
 V. Simpson, 1082. 
 
 Bynum v. Miller, 286. 
 Byrd v. Bertrand, 137. 
 
 V. Boyd, 838. 
 
 V. Pox, 76. 
 
 V. Hughes, 1121. 
 
 V. Ludlow, 382. 
 
 V. Odera, 497. 
 
 Byrne v. Crowninshield, 1409. 
 
 V. Cummings, 73. 
 
 V. Hibernia Bank, 680. 
 
 V. Schwing, 1139. 
 
 V. Van Tienlioven, 326, 328. 
 
 Byrnes v. Clark, 223. 
 
 Cabell V. Vaughan, 106, 869. 
 Cabot V. Haskins, 70, 1220. 
 Cabre v. Sturges, 1077. 
 
 615 
 
CAM 
 
 INDEX TO THE CASES CITED. 
 
 CAB 
 
 Cadwallader v. West, 656. 
 Cadwell v. Meek, 449. 
 Cady «. Shepherd, 1151. 
 Cahen v. Piatt, 1319. 
 Cahill V. Bigelow, 1239, 1260. 
 
 V. Patterson, 835. 
 
 Cain V. Heard, 1045. 
 
 V. McGuire, 1294. 
 
 V. Southern Express Co., 492. 
 
 V. Warford, 656. 
 
 Gaines v. Smith, 1426. 
 Cairnes v. Bleecker, 1109. 
 
 V. Knight, 1458. 
 
 Cairo, &c. Railroad v. Mahoney, 1066, 
 
 1109. 
 Caister v. Eecles, 1180. 
 Cake V. Peet, 709. 
 Calahan v. Babcock, 802. 
 Calderu. Dobell, 1136. 
 
 V. Rutherford, 863. 
 
 Caldwell v. Layton, 383. 
 
 V. May, 713. 
 
 V. Southern Exp. Co., 596. 
 
 V. Van Vlissengen, 1371. 
 
 Calhoun v. Atchison, 322. 
 
 V. Calhoun (37 Missis. 668), 768. 
 
 V. Calhoun (2 S. C. 283), 567, 594. 
 
 Califi V. Hillhouse, 287. 
 
 California Steam Nav. Co. v. Wright (6 
 
 Cal. 258), 517. 
 — — V. Wright (8 Cal. 585), 833. 
 Calkins v. Chandler, 63. 
 Call, People v., 764. 
 Callagan v. Hallett, 500. 
 Callaghan «. Callaghan, 45. 
 Callahan v. Stanley, 377. 
 
 Callan v. Lukens, 164. 
 
 V. McDaniel, 1 191. 
 
 Calland v. Loyd, 1094. 
 Callender v. Colegrove, 830. 
 
 Callisher v. Bischoffsheim, 57. 
 
 Calloway v. Haraby, 598. 
 
 V. Witherspoon, 656. 
 
 Calthorpe's Case, 38. 
 
 Cambioso v. Maffet, 1380. 
 
 Cambridge Sav. Bank v. Hyde, 751. 
 
 Camden v. Mulford, 238. 
 
 Camden, &c. Land Co. v. Lippincott, 412. 
 
 Camden Safe Deposit, &c. Co. v. Ab- 
 bott, 1059. 
 
 Came v. Brigham, 1009. 
 
 Cameron v. Boyle, 1458. 
 
 V. McFarland, 492. 
 
 V. Romele, 675. 
 
 Camfrancq v. Pilie, 219. 
 
 Camp's Appeal, 82. 
 
 Camp V. Barker, 1431. 
 
 V. Camp, 688. 
 
 Campanari v. Woodbum, 1052. 
 
 Campau v. Lafferty, 346. 
 
 Campbell v. Brown, 869. 
 
 616 
 
 Campbell v. Crampton (18 Blatch. 150), 
 
 1389 
 «.' Crampton (2 Eed. Rep. 417), 
 
 1382. 
 
 V. Hall, 1400. 
 
 V. Hatchett, 708. 
 
 V. Hillman, 661. 
 
 V. Hooper, 970. 
 
 V. Johnston, 881. 
 
 V. Jones, 1423. 
 
 V. Kuhn, 974. 
 
 V. Long, 1357. 
 
 V. Mayes, 301. 
 
 V. Medbury, 70. 
 
 V. Murray, 1039. 
 
 V. Nichols, 1391. 
 
 , People v., 208. 
 
 V. Pope, 1458. 
 
 w. Reeves, 1067. 
 
 V. Sherman, 1094. 
 
 V. Short, 175. 
 
 V. Smith, 1220. 
 
 V. Stakes, 901. 
 
 !;. Thomas, 350, 361. 
 
 V. Tompkins, 127. 
 
 Canada v. Canada, 834. 
 
 Canal i'. Railroad, 988. 
 
 Canal Bridge v. Gordon, 1020. 
 
 Canal Commissioners v. People, 415. 
 
 Canal Co. v. Ray, 130, 133. 
 
 Canal, &c. Railroad v. Armstrong, 1167, 
 
 1172. 
 Candee v. Smith, 877. 
 Cundler v. Lunsfbrd, 310. 
 Canedy v. Marcy, 705. 
 Canfield v. Ives, 352. 
 Canham v. Barry, 652. 
 Cann v. Warren, 1341. 
 Cannan v. Bryce, 471, .535. 
 Canney v. South Pacific Coast Railroad, 
 
 1066. 
 Canning v. Harlan, 291. 
 Cannon v. Alsbury, 925. 
 
 V. Cannon, 113. 
 
 V. Collins, 1237. 
 
 Cantey v. Duren, 109. 
 Cantine v. Phillips, 910. 
 Cantu V. Bennett, 1395, 1397. 
 Canty v. Latterner, 1194. 
 Capehart v. Rankin, 472. 
 Capener v. Hogan, 1041. 
 Caple V. McCollum, 194. 
 Caplice v. Kelley, 738. 
 Capp «. Lancaster, 1437. 
 Cardell v. Bridge, 835, 1445. 
 Carey v. Dennis, 353. 
 
 V. Dunsmore, 295. 
 
 V. Stafford, 394. 
 
 Carithers v. Lay, 758. 
 Carleton v. Whitcher, 471. 
 Carlisle v. Barker, 70J. . 
 
CAR 
 
 INDEX TO THE CASES CITED. 
 
 CHA 
 
 Carlisle v. Buvley, 1198. 
 
 V. Chambers, 1385. 
 
 Carlton v. Ludlow Woollea Mill, 1360. 
 Carlyle v. Sharp, 208. 
 Carman v. Smick, 1317. 
 Carmichael v. Greer, 1148. 
 
 V. "White, 372. 
 
 Carnahan v. Western Union Tel. Co., 
 
 1382. 
 Carneal v. Day, 1379. 
 Carnegie v. Morrison, 1373, 1390. 
 Cai-ney v. Newberry, 832. 
 Carothers v. Wheeler, 1438. 
 Carpenter v. Beer, 121, 471. 
 
 V. BuUer, 274, 28.'). 
 
 V. Carpenter, 904, 940. 
 
 V. Cresswell, 1423. 
 
 V. Holcomb, 1418. 
 
 V. Lockhart, 1452. 
 
 V. State, 885. 
 
 V. Thompson, 269. 
 
 V. Union, 1354. 
 
 Carr v. Clough, 938, 940. 
 
 V. Duval, 323. 
 
 V. Jackson, 1120. 
 
 V. Holliday (I Dev. & Bat. Eq. 
 
 344), 970. 
 w. Holliday (5 Ire. Eq. 167), 958, 
 
 969. 
 
 V. London, &c. Railway, 284. 
 
 V. Louisiana Nat. Bank, 479. 
 
 Carradine v. Wilson, 487. 
 Carrell v. Collins, 1431. 
 Carrington v. Brents, 1375. 
 
 V. Roots, 396, 1297, 1300. 
 
 Carroll v. Giddings, 838. 
 
 !•. Manchester, &c. Railroad, 284, 
 
 296. 
 
 V. Smith, 276. 
 
 0. Welch, 835. 
 
 Carroway v. Anderson, 1292. 
 Carrugi v. Atlantic, &c. Ins. Co., 154, 767. 
 Carruthers v. Hollis, 14. 
 Carson v. Clark, 91. 
 
 V. Kelley, 72. 
 
 Carson River, &c. Co. v. Bassett, 186. 
 
 Carstairs v. Rolleston, 855. 
 
 Carter o. Alexander, 404. 
 
 V. Carter (2 Kay & J. 617; 4 Jur. 
 
 If. 8. 63), 274. 
 
 V. Carter (14 Pick. 424), 818 
 
 V. Chaudron, 1070. 
 
 V. Corley, 1450. 
 
 V. Evans, 173. 
 
 V. Jarvis, 1309. 
 
 V. McClintock, 349. 
 
 V. Montgomery, 509. 
 
 V. Philadelphia Coal Co., 451. 
 
 V. Thorn, 1459. 
 
 V. Turner, 359. 
 
 ». White, 1172. I 
 
 Carthage v. Manby, 850. 
 Cartright v. Clopton, 766. 
 Carver v. Astor, 274. 
 
 V. Lassallette, 709, 710. 
 
 Cary v. White, 63. 
 Case V. Dwire, 386. 
 
 V. Grim, 74. 
 
 V. Jennings, 1062. 
 
 Casey v. Allen, 653. 
 
 V. Holmes, 382. 
 
 V, Pennoyer, 41 2. 
 
 Cason V. Cheely, 1313. 
 Cassady v. Clarke, 592, 595, 603. 
 Casseres v. Bell, 1001. 
 Cassidy v. Le Eevre, 801. 
 
 V. Metcalf, 711. 
 
 Castleman v. Griffin, 653. 
 
 V. Southern Mut. Life Ins. Co., 456. 
 
 Castor u. Aides, 1182. 
 Gate V. Blair, 4 88. 
 Gates V. Bales, 66. 
 
 V. Woodson, 975, 976. 
 
 Catesby's Case, 1339. 
 Cathcart v. Robinson, 45, 1205. 
 Catlin V. Gilders, 1145. 
 
 V. Haddox, 943. 
 
 V. Henton, 494. 
 
 V. Ricketts, 793. 
 
 Cato V. Thompson, 713. 
 Caton V. Caton, 1237. 
 
 , People v., 105. 
 
 V. Stewart, 503. 
 
 Cauble v. Ryman, 223, 258. 
 Caudell v. Shaw, 916. 
 Caughey v. Smith, 923. 
 Caulkins v. Frv, 981, 985. 
 
 V. Whisler, 1169. 
 
 Cave V. Hastings, 1249. 
 
 Cavender v. Waddingham, 981. 
 
 Cecil V. Deyerle, 567. 
 
 Cedar Rapids Bank v. Hendrie, 525. 
 
 Center v. McQuesten, 1264. 
 
 Central Bank v. Copeland, 642, 670, 726, 
 
 732, 733. 
 Central Bridge v. Abbott, 183, 206. 
 
 V. Lowell, 573. 
 
 Central Ohio Salt Co. v. Guthrie, 518. 
 Central Railroad v. Anderson, 451, 458. 
 
 «. Collins, 1013. 
 
 Central Railway v. Kisch, 655, 664. 
 Chace v. Chapin, 1215. 
 Chadbourne v. Rackliff, 942. 
 Chadsey v. Guion, 413. 
 
 V. Lewis, 1331. 
 
 Chadwick v. Eastman, 755. 
 
 V. Knox, 502. 
 
 Chaffe V. Benoit, 1 274. 
 Chaffee ti. Thomas, 1261. 
 Chalfant v. Payton, 511. 
 Challoner v. Bouck, 1049. 
 Chamber of Commerce v. Sollitt, 827. 
 
 61T 
 
CHE 
 
 INDEX TO THE CASES CITED. 
 
 CHi; 
 
 Chamberlain v. Bagley, 1452. 
 Chamberlin v. Donahue, 258. 
 
 V. Morgan, 838, 841. 
 
 V. Robertson, 1319. 
 
 D. Scott, 834. 
 
 Chambers «. Falkner, 1013, 1023. 
 
 V. Harger, 1436. 
 
 0. Rubey, 95. 
 
 0. Seay, 1051. 
 
 u. Winn, 1436. 
 
 Chambliss v. Smith, 1292. 
 Champion v. Plummer, 318. 
 
 V. State, 1125. 
 
 Champlin v. Parish, 1244. 
 Champneys v. Johnson, 244. 
 Chancellor v. Wiggins, 243. 
 Chandler w. Brown, 1192. 
 
 V. Coe, 1059. 
 
 V. Glover, 943. 
 
 V. Hill, 863. 
 
 u. Johnson, 487. 
 
 V. McKinney, 926. 
 
 V. Simmons, 921, 940. 
 
 V. Spear, 1300. 
 
 V. State f38 Ark. 197), 1421. 
 
 V. State (5 Har. & J. 284), 187. 
 
 u. Windship, 1436. 
 
 Chapin w. Lapham, 1265. 
 
 V. Merrill, 1265. 
 
 i>. Shafer, 938. 
 
 Chapman v. Brooklyn, 71. 
 
 'J. Chapman, 925. 
 
 V. Devereux, 449. 
 
 y. Hughes, 910, 911. 
 
 V. McGrew, 130, 131. 
 
 w. Rose, 346. 
 
 0. Searle, 820. 
 
 V. Shaw, 818. 
 
 Chappel V. Brockway, 516. 
 
 Chappie V. Cooper, 9U9. 
 
 Charkieh, The, In re, 998. 
 
 Charles v. Scott, 129. 
 
 Charles River Bridge o. Warren Bridge 
 
 (11 Pet. 420), .558. 
 V. Warren Bridge (7 Pick. 344), 
 
 573, 575. 
 Charlotte, The, 783. 
 Charlton «. Reed, 750. 
 Chase v. Allen, 1452. 
 
 y. Bailey, 348. 
 
 V. Barrett, 605. 
 
 V. Burkholder, 74. 
 
 y. Corcoran, 236. 
 
 y. Dwinal, 725. 
 
 y. Palmer, 1167. 
 
 y. Second Avenue Railroad, 199. 
 
 Chasemore v. Turner, 95. 
 Chastaiu v. Smith, 194. 
 Chastien v. Philips, 359. 
 Chatterton r. Parrott, 286. 
 Cheddicky. Marsh, 1451. 
 
 618 
 
 Chemical Nat. Bank v. Kohner, 55. 
 Chenery v. Goodrich, 449. 
 Cheney v. Cook, 325. 
 
 V. Eastern Transp. Line, 322. 
 
 Cherry v. Heming, 1283, 1307, 1327. 
 
 V. Smith, 325. 
 
 Chesapeake, &c. Canal v. Baltimore, &c. 
 
 Railroad, 405. 
 Chesapeake & OhioCanal v. Knapp, 1016. 
 Chesman y. Nainby, 516. 
 Chessman v. Whittemore, 758. 
 Chesterfield v. Janssen, 739. 
 Chesterfield, &c. Co. v. Hawkins, 426. 
 Chestnut v. Harbaugh, 537, 545. 
 Chestnut Hill Turnpike v. Rutter, 1016. 
 Chewning v. Johnson, 1378. 
 Chicago y. Gage, 1168, 1169. 
 
 V. Sheldon, 412. 
 
 y. Sherwood, 885. 
 
 Chicago Dock Co. y. Kinzie (49 111. 289), 
 
 1239 
 Chicago Dock, &c. Co. v. Kinzie (93 111. 
 
 415), 376. 
 Chicago and Great Eastern Railway v. 
 
 Dane, 327. 
 Chicago, &c. Railroad v. Lewis, 1018. 
 
 y. Sawyer, 593. 
 
 V. Shea, 307. 
 
 Chicago, &c. Railway v. People, 300. 
 
 y. Van Dresar, 795. 
 
 Child y. Brace, 881. 
 
 , United States v., 723. 
 
 Children of Israel y. Peres, 838. 
 Childs V. Dobbins (55 Iowa, 205), 938. 
 
 V. Dobbins (61 Iowa, 109), 171. 
 
 y. Millville, &e. Ins. Co., 56. 
 
 V. Monins, 1253. 
 
 y. Stoddard, 783, 784. 
 
 Chiles V. Smith, 1343. 
 Chilton y. People, 111. 
 Chiodi V. Waters, 324. 
 Chipman v. Morrill, 216. 
 Chippendale v. Thurston, 785. 
 Chittenden v. German-American Bank, 
 
 1151. 
 Choice V. Moseley, 785. 
 Chope y. Lorman, 268. 
 Choteau y. Jones, 673. 
 Chouteau v. Paul, 1077. 
 Chouteaux v. Leech, 1103. 
 Chrisman v. Hodges, 174. 
 Christ Church v. Philadelphia, 563. 
 Christal v. Kelly, 793. 
 Christian Church v. Johnson, 1016. 
 Christmas v. Mitchell, 963. 
 Church V. Florence Iron Works, 174. 
 
 y. Gilman, 351. 
 
 y. Imperial Gas-light and Coke Co., 
 
 189, 101.5. 
 
 y. King, 866. 
 
 V. Sterling, 1329. 
 
CLA 
 
 INDEX TO THE CASES CITED. 
 
 CLO 
 
 Church, &c Soc. v. Hatch, 390. 
 Churchill v. Perkins, 485. 
 
 V. Reamer, 384. 
 
 V. Terrell, 277. 
 
 Cilley, State v., 755. 
 
 Cincinnati, &c. Kailroad v. Clarksou, 
 1006, 1010, 1017. 
 
 V. Lee, 207. 
 
 Citizens Fire Ins. &c. Co. v. Doll, 412. 
 City Council v. Moorhead, 1016. 
 City of Norwich, The, 411. 
 Claflin V. Carpenter, 1294. 
 
 V. CommonwealtU Ins. Co., 1422. 
 
 V. Cottman, 673. 
 
 V. Lenheim, 993. 
 
 Glamorgan v. Greene, 274. 
 Clancy v. Craine, 634. 
 
 V. Overman, 592. 
 
 Clanrickard v. Sidney, 380. 
 Clapp V. Hale, 1363. 
 
 V. Webb, 1263. 
 
 Claremont Bank v. Wood, 870. 
 Claik V. Baker, 1112. 
 
 V. Child, 1407. 
 
 V. Clark, 740. 
 
 !;. Colbert, 492. 
 
 V. Crosby, 517. 
 
 V. Depew, 1211. 
 
 V. Dickinson, 787. 
 
 V. Dutton, 1449. 
 
 V. Fitch, 899. 
 
 V. Gaylord, 64. 
 
 V. Girdwood, 705. 
 
 V. Glasgow Assur. Co., 582, 595. 
 
 V. Goddard, 920. 
 
 V. Hart, 705. 
 
 V. Hopkins, 135 1 . 
 
 V. Jones, 794. 
 
 V. King (2 Car. & P. 286), 818. 
 
 V. King (2 Mass. 524), 1179. 
 
 V. Lillie, 372. 
 
 V. Manchester, 838. 
 
 V. Marsiglia, 837, 839. 
 
 V. Miller, 1147. 
 
 V. New York Life Ins. &c. Co., 372. 
 
 V. Pease, 728. 
 
 V. Pendleton, 1271. 
 
 V. Phillips, 109. 
 
 V. Pinney, 439. 
 
 V. Piatt, 903. 
 
 V. Pomeroy, 492. 
 
 V. Powers, 390 
 
 V. Rowling, 877. 
 
 V. School District, 835. 
 
 V. Small, 768. 
 
 V. Smith (1 Casey, Pa. 137), 1302. 
 
 V. Smith (88 111. 298), 1062. 
 
 V. Tarbell, 1397. 
 
 V. Thayer, 674. 
 
 V. United States, 992. 
 
 V. "Van Northwick, 1139. 
 
 Clark V. Willett, 1127. 
 
 V. Woodruff, 413. 
 
 Clarke v. Leslie, 234, 914. 
 
 V. Lyon, 1225. 
 
 V. McFarlaud, 12i!0. 
 
 V. Meigs, 1226. 
 
 V. Morey, 1000. 
 
 V. Shee, 677. 
 
 , State V. (3 Harring. Del. 557), 894. 
 
 , State V. (73 N. C. 255), 595. 
 
 , United States v., 989. 
 
 Clarkson v. Carter, 1147. 
 
 V. Creely, 62. 
 
 V. Doddridge, 1220. 
 
 ■ V. Hanway, 45, 124. 
 Clay V. Oxford, 859. 
 
 V. Severance, 214. 
 
 I). Yates, 1316. 
 
 Clay land v. Pearce, 1229. 
 Clayton v. Andrews, 1313. 
 
 V. Blake, 835, 1445. 
 
 V. Bussey, 707. 
 
 V. Merrett, 1054. 
 
 V. Somers, 237. 
 
 Cleary v. Sohier, 588. 
 Cleaton v. Cham bliss, 775. 
 Clegg V. Levy, 1386. 
 Clement v. Brush, 1151. 
 
 V. Gunhouse, 111. 
 
 Clements v. Moore, 1429. 
 Clemen tson v. Williams, 1362. 
 Clendennen v. Paulsel, 1432. 
 Clerk V. Clerk, 964. 
 Cleveland i'. Martin, 155. 
 
 V. Williams, 1053. 
 
 Cleveland, &c. Railroad u. Mara, 270. 
 
 V. Perkins, 432. 
 
 Clews V. New York Banking Assoc, 700. 
 
 K. Traer, 1358. 
 
 Clifford u. Turrell, 121. 
 
 V. Watts, 579, 587, 590. 
 
 Clifton V. Litchfield, 768. 
 
 Clinch V. Financial Corporation, 1012. 
 
 Clinton v. Haddam, 293. 
 
 V. McKenzie, 1299. 
 
 Clinton Bank v. Hart, 877. 
 Clippinger v. Hepbaugh, 499. 
 Clopper V. Poland, l!i63. 
 Clopton V. Bolton, 401. 
 
 V. Booker, 1395. 
 
 Close u. Gillespey, 1125. 
 
 V. Glenwood Cemetery, 1023. 
 
 Cloud V. Ivie, 194. 
 Clough V. Clough, 345. 
 
 V. Davis, 544. 
 
 w. Goggins, 537. 
 
 V. London, &c. Railway, 672, 679, 
 
 680, 681. 
 
 V. Patrick, 70. 
 
 V. Seay, 757. 
 
 Clow V. Borst, 211. 
 
 619 
 
COL 
 
 INDEX TO THE CASES CITED. 
 
 COM 
 
 Clubb V. Hutson, 492. 
 Clute V. Carr, 1300. 
 
 V. Robison, 1180. 
 
 V. Small, 752. 
 
 Coady v. Curry, 725. 
 Coan V. Bowles, 936. 
 Coare v. Giblett, 360. 
 Coates V. Hewit, 1456, 1460. 
 
 V. Preston, 1194. 
 
 Cobb V. Becke, 1067. 
 
 V. Hall, 1433. 
 
 V. Harmon, 591. 
 
 V. Hatfield, 683. 
 
 V. Knight, 1216. 
 
 V. Keed, 1436. 
 
 Coburn b. Ware, 871. 
 
 V. Webb, 747, 754. 
 
 Cock V. Oakley, 258. 
 
 Cockburn v. Ashland Lumber Co., 1432. 
 
 Cockellu. Gray, 1170. 
 
 Cocker v. Cocker, 1363. 
 
 Cockerell v. Aucompte, 1 1 62. 
 
 V. Cholmelev, 111. 
 
 Cocking V. Pratt," 702, 703, 740. 
 
 u. Ward, 634. 
 
 Cockle V. Flack, 1388. 
 Cockiell V. Warner, 1309. 
 Cocks V. Simmons, 918. 
 Coddington v. Goddard, 344, 1245. 
 
 i;. Paleologo, 827. 
 
 Codman v. Johnson, 372. 
 
 Coffin V. Landis, 1050. 
 
 CofFman v. Bank of Kentucky, 572. 
 
 V. Lookout Bank, 727, 733. 
 
 Cogel V. Raph, 893. 
 Coggburn v. Simpson, 1081. 
 Coggeshall v. Coggeshall (1 Strob. 43), 
 75. 
 
 V. Coggeshall (2 Strob. 51), 42. 
 
 Coggs «. Bernard, 64. 
 Cohen «. Cohen, 223. 
 
 V. Teller, 700, 847. 
 
 Cohens v. Virginia, 989. 
 Cohrt V. Kock, 803, 827. 
 Coil V. Wallace, 1429. 
 Coit w. Millikin, HI. 
 Coker v. Ferguson, 303. 
 Colbert v. Daniel, 293. 
 Colburn v. Phillips, 1081. 
 
 V. ToUes, 1266. 
 
 V. Woodworth, 838. 
 
 Colcock V. Louisville, &c. Railroad, 768. 
 Golden v. Walsh, 881. 
 Colderwood «. McCrea, 535. -^ 
 Cole V. Cole, 45. 
 
 V. Driskell, 141. 
 
 V. Hughes, 1191. 
 
 V. Kimball, 1192. 
 
 «. McGlathry, 1357. 
 
 V. Malcolm, 215. 
 
 V. Milmine, 534. 
 
 620 
 
 Cole V. Northwestern Bank, 976, 1138. 
 
 V. Pennoyer, 942. 
 
 V. Potts, 1237. 
 
 V. Raymond, 268. 
 
 V. Saxby, 943. 
 
 V. Seeley, 906. 
 
 V. Singerly, 1280. 
 
 V. Williams, 346. 
 
 Coleman v. Bean, 274. 
 
 V. Eyre, 61, 76, 153. 
 
 V. Frazer, 958. 
 
 V. Grubb, 412. 
 
 V. Manhattan Imp. Co., 376. 
 
 V. Pearce, 295. 
 
 V. Satterfield, 673. 
 
 I). Stark, 1225. 
 
 V. Thurmond, 1365. 
 
 Coles V. Hulme, 383. 
 
 V. Pilkington, 1237. 
 
 V. Trecothick, 815, 1049. 
 
 Collen V. Gardner, 1060. 
 
 V. Wright, 247, 1120. 
 
 Collier v. Field, 854. 
 
 V. Jacoby, 758. 
 
 V. Mahan, 75. 
 
 Collingwood v. Merchants Bank, 172. 
 Collins V. Barnes, 63. 
 
 V. Baumgardner, 768. 
 
 I'. Blantern, 14, 122. 
 
 V. Box, 277. 
 
 V. Buckeye Ins. Co., 1077. 
 
 V. Cook, 1210. 
 
 V. Evans, 661, 
 
 V. Heath, 673. 
 
 V. Lavelle, 380, 382. 
 
 0. Locke, 516, 518, 519. 
 
 «. Newton, 1062. 
 
 V. Sherman, 575. 
 
 V. Suau, 1108, 1224. 
 
 c. Tilton, 29, 881. 
 
 w. Westbury, 718, 724. 
 
 V. Whigham, 786. 
 
 Collins Iron Co. !>. Burkam, 1371. 
 Colsellw. Budd, 1351. 
 Colt u. Root, 1264. 
 Colton V. Harper, 306. 
 Columbet v. Pacheco, 302. 
 Columbia i'. Rothschild, 998. 
 Columbia Bank v. Fitzhugh, 445, 449. 
 
 w. Hagner, 1437. 
 
 Colvin V. Williams, 1136, 1315. 
 Colyar v. Taylor, 64. 
 Colyear v. Mulgrave, 426. 
 Combes's Case, 1071. 
 Comer v. Bankhead, 994. 
 Comly !). Hillegass, 535. 
 Commercial Bank v. Jones, 1067, 1108, 
 1224. 
 
 V. King, 1374. 
 
 V. Norton. 1067. 
 
 «. Pfeiffer, 185. 
 
coo 
 
 INDEX TO THE CASES CITED. 
 
 COP 
 
 Commercial Bank v. Eeed, 630. 
 
 V. State, 559. 
 
 V. Varnum (3 Lans. 86), 1067. 
 
 V. Varnum (49 N. Y. 269), 1389. 
 
 Commercial Steamship Co. v. Boulton, 
 
 1342. 
 Commins v. Scott, 1249. 
 Commissioner of Insolvents v. Way, 393 
 Commissioners of Taxes, People v., 563. 
 Commonwealth Bank v. McChord, 1170,. 
 
 1174. 
 Compton's Case, 782. 
 Compton 0. Jones, 1181. 
 
 V. Martin, 1283. 
 
 Comroodeen Tyabjee, In re, 1125. 
 Comstock V. Adams, 496. 
 
 V. Breed, 1261. 
 
 V. Farnnm, 1180. 
 
 V. Purple, 45. 
 
 V. Sanger, 795. 
 
 V. Smith (7 Johns. 87), 90, 91. 
 
 1!. Smith (13 Pick. 116), 277. 
 
 V. Ward, 1274. 
 
 Conant r. Jackson, 658, 958, 964. 
 Conaway v. Shelton, 941. 
 Condict 0. Flower, 753. 
 Congdon v. Perry, 634 
 Conger v. Cotton, 1263. 
 Congregational Society v. Perry, 76. 
 Confcey v. Hopkins, 1265. 
 Conklin v. Ogborn, 943. 
 Conn V. Cobnrn, 914. 
 Connard v. Colgan, 355. 
 Connell v. Vauderwerken, 176. 
 Connelly v. Devoe, 768, 805. 
 
 V. Pisher, 735. 
 
 V. Slielly, 821. 
 
 Conner «. Goodman, 1358. 
 
 V. Henderson, 679, 833. 
 
 Connerat v. Goldsmith, 1258. 
 Connihan v. Thompson, 284, 296. 
 Connoly v. Hammond, 1358. 
 Connor v. Follansbee, 75, 1216. 
 
 V. Parker, 1067. 
 
 V. Williams, 1309. 
 
 Conover v. Stillwell, 61. 
 Conrad v. Callery, 284. 
 
 V. Lane, 902, 903. 
 
 V. Schwamb, 45, 394. 
 
 Conrey v. Brandegee, 1050. 
 Consolidated Assoc, v. Lord. 567. 
 Consols Ins. Assoc, w. Newall, 346, 1167. 
 Continental Bank v. Com. Bank, 284. 
 
 V. Townsend, 1189, 1439. 
 
 Converse v. Converse, 961. 
 
 V. Harzfeldt, 836. 
 
 V. United States, 500. 
 
 Conway u. Eeed, 901. 
 Conyers v. Magrath, 1076. 
 Cooch V. Goodman, 112, 119. 
 Cook V. Boston, 630. 
 
 Cook V. Bradley, 93. 
 
 V. Brown, 352, 361. 
 
 V. Deaton, 912. 
 
 V. Duvall, 63. 
 
 V. Elliott, 1266. 
 
 V. Oilman, 680. 
 
 V. Gray, 1078. 
 
 V. Harms, 310, 993. 
 
 V. Johnson, 517. 
 
 V. Kennerly, 194. 
 
 V. Lillo, 404. 
 
 V. Lindsav, 1057. 
 
 0. Moffat,' 1391. 
 
 !■. Moore, 679. 
 
 , People v., 653. 
 
 U.Phillips, 471. 
 
 V. Pridgen, 1300. 
 
 v. Renick, 445. 
 
 V. Sherman, 525. 
 
 V. Shipman, 499. 
 
 V. Stearns, 1292, 1298, 1299, 1300. 
 
 V. Toumbs, 925. 
 
 V. Tullis, 848, 849. 
 
 V. Wright, 57. 
 
 Cooke V. Clavworth, 981, 984. 
 
 V. Millard, 1319. 
 
 V. Murphy, 57, 133. 
 
 V. Oxley, 313, 325. 
 
 V. Seeley, 1031. 
 
 Cool V. Peters Box, &c. Co., 1294, 1299. 
 Cooley V. Perrine, 1063. 
 
 V. Steele, 289. 
 
 V. Warren, 386. 
 
 Coolidge V. Ruggles, 1179. 
 Coon V. Atwell, 685. 
 
 V. Brickett, 794. 
 
 Cooper, In re, 646. 
 
 ?;. Cooper, 1 354. 
 
 V. Elston, 1313. 
 
 V. Hood, 390. 
 
 V. Hornsby, 1238, 1239. 
 
 V. Kane, 449. 
 
 V. Mcllwain, 812. 
 
 V. McKee, 418. 
 
 V. Mowry, 1426. 
 
 V. Newman, 673. 
 
 V. Phibbs, 462, 465, 698. 
 
 V. Rankin, 1045. 
 
 V. Shaver, 382. 
 
 V. State, 916. 
 
 V. Vierra, 302. 
 
 V. Waldegrave, 1.393. 
 
 V. White, 376. 
 
 V. Williams, 573. 
 
 Coover v. Davenport, 580. 
 Cope V. Rowlands, 31, 471, 472. 
 Copeland v. Copeland, 287. 
 
 V. Cunningham, 1167. 
 
 V. Mercantile Ins. Co., 1041, 1088. 
 
 V. Wading River Reservoir. 156, 
 
 1292. 
 
 621 
 
cox 
 
 INDEX TO THE CASES CITED. 
 
 CRO 
 
 Copenrath v. Kienby, 970, 975. 
 
 Copis V. .Middleton, 214. 
 
 Copper Hill Mining Co. v. Spencer, 1292, 
 
 1295. 
 Coquillard v. Bearss, 497. 
 Corbettu. Cochran, 1261, 1266. 
 Corbia v. Fairbanks, 786. 
 
 V. Healy, 384. 
 
 Corbitt V. Stonemetz, 805, 1436. 
 Corby v. Weddle, 647. 
 Corkw. Baker, 1271. 
 Cork, &c. Railway, In re, 471. 
 Corley v. Williams, 492. 
 Corliss V. Smith, 1028. 
 Cornelia v. Ellis, 909. 
 Cornell v. Cornell, 1420. 
 
 V. Monlton, 1343. 
 
 Cornellison v. Cornellison, 1238. 
 Corner v. Shew, 237. 
 Cornfoot v. Fowke, 652. 
 Corning v. Colt, 321. 
 Cornish v. Abington, 317. 
 Corpe V. Overton, 921. 
 Corser v. Paul, 1226. 
 Corwin v. Hood, 406. 
 Cory V. Gertcken, 902. 
 Costar !>. Brush, 517. 
 
 V. Davies, 1309. 
 
 Costigan v. Hawkins, 243. 
 
 V. Mohawk, &c. Railroad, 838. 
 
 Cote, Ex parte, 328. 
 Cothay v. Kennell, 1079 1147. 
 Cotheal v. Talmage, 1450. 
 Cothran v. Forsyth, 81, 121. 
 Cotten ". McKenzie, 74. 
 
 V. Williams, 775, 1330. 
 
 Cottom V. HoUiday, 1037. 
 
 Cotton V. Reavill,"l437. 
 
 Cotton States Life Ins. Co. v. Carter, 
 
 707. 
 Couch u. Conch, 1452. 
 Coughlin V. Knowles, 1236. 
 Coulter V. Board of Education, 1418. 
 Counts V. Bates, 936. 
 Courand v. Vollmer, 1 11. 
 Courtenay v. Fuller, 164. 
 Coventry v. Woodhall, 1182. 
 Covin V. Hill, 1062. 
 Covington v. Threadgill, 74. 
 Cowie V. Halsall, 751. 
 Cowles V, Bacon, 284. 
 Cowley V. Pobbins, 651. 
 Cox V. Adams, 838. 
 
 V. Arnsmann, 1216. 
 
 V. F.iy, 1065. 
 
 V. Hickman, 1144. 
 
 c. McLaughlin (52 Cal. 590), 828. 
 
 V. McLaughlin (54 Cal. 605), 828. 
 
 V. Palmer, 1094. 
 
 V. Rogers, 305. 
 
 II. United States, 1390, 1393. 
 
 622 
 
 Coxe V. Devine, 1079. 
 
 V. Sartwell, 124. 
 
 Coyle V. Davis, 1237. 
 Cozzins V. Whitaker, 243. 
 Crabtree v. Messersmith, 1428. 
 Craddock v. Cabiness, 735. 
 Craft V. McConoughy, 513, 518. 
 
 V. State Bank, 431, 1338. 
 
 Cragie v. Hadley, 1021. 
 Craig V. Chambers, 1416. 
 
 V. Leclie, 999. 
 
 V. Wells, 382. 
 
 Craighead v. McLoney, 751. 
 
 V. Peterson, 1060. 
 
 V. Wells, 920. 
 
 Cram v. Mitchell, 881. 
 Cramlington v. Evans, 1184. 
 Crane v. Ailing, 872. 
 
 V. Buchanan, 173. 
 
 V. Gough, 155, 1234, 1238. 
 
 V. Hyde Park, 418. 
 
 V. Kildprf, 829. 
 
 V. Morris, 274. 
 
 Crans v. Hunter, 1110, 1225. 
 Craven v. Freeman, 216. 
 Cravens v. Grant, 685. 
 Crawford v. Barkley, 1110, 1225. 
 
 V. Branch Bank, 572. 
 
 V. Cato, 725, 732. 
 
 V. Dexter, 731. 
 
 V. Elliott, 372. 
 
 V. Gaulden, 1357. 
 
 V. Geiser Manuf. Co., 390. 
 
 V. Jarrett, 375. 
 
 V. King, 1254. 
 
 V. Kirksey, 1211. 
 
 V. Lehr, 1198. 
 
 V. Millspaugh, 50. 
 
 V. Scovell, 970. 
 
 V. The William Penn, 1000. 
 
 i\ Wilson, 244. 
 
 V. Witten, 1371. 
 
 Crayton i-. Johnson, 216. 
 Creekmore v. Chitwood, 547. 
 Cresinger v. Welch, 942. 
 Cressinger v. Dessenburg, 358. 
 Crim V. Fitch, 1264. 
 Crisdee v. Bolton, 1450. 
 Crisp i: Churchill, 506, 920. 
 Crist V. Armour, 1426. 
 Crittenden v. Crump, 208. 
 
 V. French, 392. 
 
 Crocker v. Bellangee, 610, 616. 
 
 V. Buffalo, 398. 
 
 V. Crocker, 673. 
 
 V. Lowenthal, 352. 
 
 i>. Whitney, 1181. 
 
 Crockett v. Thomason, 765. 
 Croft V. Bunster, 124. 
 
 V. White, 753. 
 
 V. Wilbar, 833. 
 
CUL 
 
 INDEX TO THE CASES CITED. 
 
 CTJY 
 
 Cromwell v. Cotinecticnt Brown Stone 
 
 Quarry Co., 504. 
 
 V. Grimsdale (Comb. 477), 114. 
 
 V. Grurasdale (12 Mod. 193), 115. 
 
 D. Grunsden (2 Salk. 462; 1 Ld. 
 
 Rayin. 335), 112, 114. 
 
 V. Royal Canadian Ins. Co., 1389. 
 
 «. Tate, 111. 
 
 B. Wilkinson, 827, 1344. 
 
 Cronisc v. Clark, 926. 
 Cronkhite v. Cronkliite, 1300. 
 
 V. Nebeker, 1175. 
 
 Crooks V. Crooks, 361. 
 
 V. Whitford, 316, 390. 
 
 Crookshank v. Burrell, 1313, 1316. 
 Crop V. Norton, 165. 
 Crosby v. Berger, 1373. 
 
 V. Wadsworth, 1297, 1300. 
 
 V. Watkins, 1081. 
 
 V. Wood, 70, 768. 
 
 Crosland v. Hall, 651. 
 Cross V. De Valle, 999. 
 
 V. Haskins, 1062. 
 
 V. Huntley, 70. 
 
 V. Jackson, 1156. 
 
 V. Powel, 815. 
 
 V. State Bank, 1168. 
 
 V. Williams, 1159. 
 
 Crossgrove v. Hinimelrich, 834. 
 Crossing v. Scudamore, 42, 380. 
 Crossley v. Mavcock, 323. 
 Grossman v. Hilltown, &c. Co., 1016. 
 Crouch V. Credit Foncier, 1179. 
 
 V. Fowle, 248. 
 
 Grouse v. Holman, 975. 
 Crowder v. Reed, 492. 
 Crowe V. Peters, 958. 
 Crowell V. Beverly, 249. 
 
 V. Hospital of St. Barnabas, 1 220. 
 
 ». Maughs, 1327. 
 
 Crowther v. Rowlandson, 966. 
 Croy V. Busenbark, 345. 
 Crozier v. Carr, 1095, 1171. 
 Cruess v. Fessler, 65. 
 Crum's Appeal, 1157. 
 Crum V. Boyd, 1077. 
 Crumbaugh v. Kugler, 1211. 
 Crutchfield v. Haynes, 740. 
 Cruttwell V. Lye, 520. 
 Cnitwell V. De Rosset, 875. 
 Crymes v. Day, 923. 
 Cubbedge v. Napier, 1373. 
 Cubberly v. Cubberly, 374, 390. 
 Cucullu V. Hernandez, 1363. 
 Cuff V. Penn, 795. 
 Cullen V. Bimm, 1432. 
 
 V. Thomson, 1118. 
 
 Cullum V. Branch Bank, 689. 
 Culver I'. Badger, 709. 
 
 V. Banning, 40. 
 
 V. Culver, 316. 
 
 Culver V. Hide and Leather Bank, 
 
 674. 
 Colverhouse v. Beach, 999. 
 Cumber v. Wane, 54. 
 Gumming v. Ince, 721. 
 Cummings v. Arnold, 852. 
 -: — V. Browne, 382. 
 
 V. Coe, 394. 
 
 V. Dennett, 75, 1247, 1316. 
 
 V. Henry, 980. 
 
 V. Powell, 925. 
 
 V. Saux, 471. 
 
 Cummins v. Beaumont, 1062. 
 
 V. Bulgin, 708. 
 
 V. Lods, 832. 
 
 Cundy v. Lindsay, 673. 
 Cunningham v. Collier, 994. 
 c. Curtis, 408. 
 
 V. Milner, 288. 
 
 V. Shields, 653. 
 
 Curran v. Arkansas, 559. 
 
 V. Burdsall, 277. 
 
 V. Downs, 472. 
 
 ?'. Rogers, 784. 
 
 V. Rummell, 50. 
 
 , State v., 989. 
 
 Currie v. Misa, 38, 61. 
 
 Currier v. Howard, 155, 1193, 1330, 
 
 1331. 
 Curry v. Davis, 567. 
 
 v. Lyies, 75. 
 
 , United States v., 1129. 
 
 Curson ». Monteiro, 876. 
 Curtis V. Barrs, 1104. 
 
 i\ Belknap, 1147. 
 
 V. Brownell, 959, 964. 
 
 i'. Clark, 70. 
 
 V. Gokey, 516, 520. 
 
 !'. Gorman, 353. 
 
 V. Hall. 689. 
 
 V. Leavitt, 628. 
 
 V. Whitney, 571. 
 
 Curtiss V. McDougal, 939. 
 
 V. Martin, 874. 
 
 Cusack V. White, 509. 
 Cushman v. Glover, 1089. 
 Cutler V. Ashland, 994. 
 
 V. Bonney, 12. 
 
 V. Dickinson, 274. 
 
 V. Everett, 1261. 
 
 V. Roberts, 443. 
 
 V. Smith, 815, 822. 
 
 V. Thomas, 1156. 
 
 V. Wright, 871. 
 
 Cutter V. Cochrane, 68. 
 
 V. Powell, 586. 
 
 ;;. Whittemore, 348. 
 
 Cutting V. Williams, 1184. 
 Cutts V. Gordon, 869. 
 
 V. United States, 748. 
 
 Cuyler v. Cnyler, 857. 
 
 623 
 
DAV 
 
 INDEX TO THE CASES CITED. 
 
 DAV 
 
 Dabv V. Ericsson, 863. 
 
 Da Costa v. Davis (I B. & P. 242), 606. 
 
 V. Davis {4 Zab. 319), 1383. 
 
 V. Jones, 531, 533. 
 
 Daffin V. Roberts, 57. 
 Daggers w. Van Dyck, 1351. 
 Dahlman v. Hammel, 1247. 
 Dalcins v. Wagner, 1342. 
 Dakota v. Parker, 725. 
 Dale V. Humfrey, 1086. 
 
 V. Kimpton, 1180. 
 
 Dalton V. Gib, 909. 
 
 V. Rust, 408. 
 
 Dames, In re, 823. 
 Damon v. Granby, 1089. 
 
 V. Osborn, 1074. 
 
 Dana v. Bank of St. Paul, 1012. 
 
 , Commonvfealth v., 147. 
 
 V. Coombs, 941. 
 
 V. Hancock, 164, 764. 
 
 V. King, 1433. 
 
 Danby v. Coutts, 1059. 
 Dane v. Derber, 709. 
 
 V. Kirkwall, 970. 
 
 Danforth v. Schohirie, &c. Turnpike, 
 
 1020. 
 Daniel v. Adams, 1134. 
 
 «. Krazer, 1323. 
 
 V. Mitchell, 587. 
 
 II. Tarver, 73. 
 
 V. Toney, 1152. 
 
 Daniels i>. Hallenbeck, 211. 
 Danielwitz v. Sheppard, 528. 
 Danner v. Brewer, 1395. 
 Danolds v. State, 988, 989. 
 Darby v. Boucher, 914. 
 
 V. Cabanne, 968. 
 
 Darden v. Harrill, 305. 
 Dare v. Spencer, 795. 
 Dark v. Johnston, 1299. 
 Darland v. Greenwood, 1418. 
 Darnley v. London, &c. Railway, 799. 
 Darr v. Darr, 1052. 
 Darris's Case, 1054. 
 Darst V. Bates, 1263. 
 
 V. Brockway, 71. 
 
 y. Thomas, 650, 682. 
 
 Dart V. Lowe, 64. 
 
 Darthez «. Winter, 435. 
 
 Dartmouth College v. Woodward, 557, 
 
 559, 560, 561. 
 Dartnall v. Howard, 64. 
 Darwin v. Rippey, 765. 
 Daubenspeck v. Powers, 223. 
 Danchey v. Drake, 1420. 
 Dauchy v, Silliman, 679, 683. 
 Dangherty v. Moon, 1051. 
 Davenport v. Cole, 741. 
 
 V. Gentry, 601. 
 
 V. Mason, 210, 258. 
 
 V. Riley, 1076. 
 
 624 
 
 Davenport u. Sleight, 1168, 1169. 
 
 V. Whisler, 350. 
 
 V. Woodbridge, 1180. 
 
 David V. Williamsburgh City Fire Ins. 
 
 Co., 343. 
 Davidson v. Carter, 656. 
 
 V. Cooper (11 M. & W. 778), 1168. 
 
 V. Cooper (13 M. & W. 343), 751, 
 
 753. 
 
 V. Peticolas, 166. 
 
 V. Silliman, 298. 
 
 u. Wood, 968. 
 
 Davies v. Smith, 943. 
 Davis V. Anable, 877. 
 
 V. Ayres, 838. 
 
 V. Bank of England, 676. 
 
 V. Barger, 544. 
 
 V. Barkley, 854. 
 
 V. Bowker, 851. 
 
 I.: Breon, 217. 
 
 V. Brewster, 1 73. 
 
 r. Bronson, 1378, 1382. 
 
 v. Caldwell, 909. 
 
 !-. Calloway, 1220. 
 
 V. Carlisle, 753. 
 
 V. Coburn, 1182. 
 
 V. Coleman, 1363. 
 
 V. Cotton, 1357. 
 
 V. Crawford,' 1425. 
 
 V. Davis, 293. 
 
 V. Dudley, 942. 
 
 V. Eastman, 1319. 
 
 V. Eppinger, 1439. 
 
 V. Fox, 726. 
 
 V. Freeman, 1452. 
 
 V. Garr, 1374. 
 
 V. German Am. Ins. Co., 99. 
 
 V. Gray, 348. 
 
 «. Hamlin, 740, 1121. 
 
 V. Harper, 1409. 
 
 V. Henrv (13 Neb. 497), 751. 
 
 V. Henry (4 W. Va. 571), 679. 
 
 V. Hemdon, 1 1 79. 
 
 D. Inscoe, 814. 
 
 V. Jones (17 C. B. 625), 170, 178. 
 
 II. Jones (3 Houst. 68), 1319. 
 
 V. Judd, 107. 
 
 V. Lane, 1055, 1104. 
 
 V. Liberty, &c. Gravel Road, 169. 
 
 K. Luster, 720, 726. 
 
 V. Mason, 126, 517. 
 
 V. Moore, 1235, 1237, 1240. 
 
 V. Morgan, 61. 
 
 V. Morton, 1408. 
 
 «. Munson, 331. 
 
 V. Old Colony Railroad, 1012. 
 
 V. Parish, 832. 
 
 V. Ransom, 1309. 
 
 i: Reyner, 1252. 
 
 V. Robertson, 1314. 
 
 V. Rowell, 1314. 
 
DEC 
 
 INDEX TO THE CASES CITED. 
 
 DEE 
 
 Davis ti. Shields, 1246. 
 
 V. Simpson, 881. 
 
 i: Smith (15 Misso. 467), 590. 
 
 V. Smith (48 Vt. 52), 1355. 
 
 V. Snider, 645. 
 
 V. Stuard, 680. 
 
 V. Tibbats, 483. 
 
 V. Tingle, 903. 
 
 V. Townsend, 823. 
 
 II. Trevanion, 1382. 
 
 V. United States, 1452. 
 
 V. Van Buren, 865. 
 
 V. Walker (4 Hayw. 295), 1292. 
 
 V. Walker (51 Missis. 659), 780. 
 
 V. West Sai-atoga Building Union, 
 
 674. 
 
 i,'. Windsor Savings Bank, 1053. 
 
 Davison v. Davison, 224. 
 
 V. Seymour, 527. 
 
 Davisson v. Ford, 58. 
 Dawes v. Prentice, 408. 
 Dawkins v. Gill, 496. 
 Dawson v. Coles, 1330. 
 
 V. Helmes, 942. 
 
 Day V. Caton, 238, 302. 
 
 V. Cloe, 1261. 
 
 V. Cooley, 1197. 
 
 V. Highland Street Railway, 540. 
 
 V. Kinney, 245. 
 
 K. Lafeerty, 1151. 
 
 V. Lown, 663. 
 
 V. McAllister, 542, 846. 
 
 V. Thompson, 169. 
 
 Dayton v. Newman, 352. 
 
 V. Wilkes, 65. 
 
 Deakins v. Alley, 171. 
 Dean v. Dear, 194. 
 
 V. Emerson, 487, 51.5, 517. 
 
 V. Hewit, 1360. 
 
 V. Lawham, 165. 
 
 V. Martin, 298. 
 
 V. Mason, 244. 
 
 V. Newhall, 872. 
 
 , State v., 755. 
 
 V. Woodbridge, 1436. 
 
 D'Anjou K. Deagle, 432. 
 
 Deans «. McLendon, 59, 472. 
 
 D'Aquin v. Barboar, 412. 
 
 Dearborn v. Cross, 134, 135, 814. 
 
 Dearth v. Baker, 609. 
 
 Deason v. Boyd, 937. 
 
 Deaton v. Tennessee Coal, &c. Railroad, 
 
 1277. 
 De Bann v. Atchison, 1101. 
 De Beil ». Thomson, 224. 
 De Bemardy v. Harding, 816. 
 De Camp v. Hamma, 645. 
 De Caters v. Le Ray de Chanmont, 881. 
 Decatur v. Vermillion, 47. 
 Decell B. Lewenthal, 479, 547, 911. 
 Decker, Ex parte, 775. 
 
 40 
 
 Decker v. Gammon, 609. 
 
 V. Hardin, 657. 
 
 V. Shaffer, 1264. 
 
 Decorah v. Kesselmeier, 385. 
 
 Decuir v. Lejeune, 846. 
 
 Dee V. Downs, 1259. 
 
 Deel V. Berry, 1436. 
 
 Deering v. Thom, 1063, 1082. 
 
 Deer-isle v. Eaton, 209. 
 
 Defenbaugh v. Weaver, 795. 
 
 De Fonclear v. Shottenkirk, 1309. 
 
 De Forth v. Wisconsin, &c. Railroad, 
 
 540. 
 Defraunce v. Brooks, 399. 
 Defreeze v. Trumper, 243. 
 Degelos v. Woolfolk, 270. 
 De Groot v. Van Duzer, 472. 
 De Haber v. Portugal, 998. 
 De Herques v. Marti, !t09. 
 Delacroix v. Bulkley, 130. 
 Delafield v. Illinois, 992, 995, 1186. 
 Delamater v. Miller, 1426. 
 Deland v. Amesbury, &c. Manuf. Co., 
 
 855. 
 Delano v. Blake, 941. 
 Delashmut v. Trau, 1207. 
 De la Touche, In re, 707. 
 De La Vega v. Vianna, 1390, 1405. 
 Delaware Bank v. Smith, 64. 
 Delaware Railroad v. Tharp, 560. 
 Delaware, &c. Tow-boat Co. v. Starrs, 
 
 410. 
 De Leon v. Trevino, 489. 
 De Levillain v. Evans, 923. 
 Delhomme v. Duson, 627. 
 Delier v. Plymouth, &c. Soc, 530. 
 Delmas v. Insurance Co., 570. 
 Delong V. Delong, 830. 
 De Medina v. Grove, 725. 
 Demeritt v. Bickford, 1265. 
 De Mill V. Moffat, 309. 
 Deming v. Bullitt, 109, 1077, 1119. 
 Demorest v. Enstman, 679. 
 Demoss v. Noble, 321. 
 Dendy v. Henderson, 517. 
 Denison v. Crawford. 504. 
 Denmead v. Glass, 1319. 
 Dennett v. Dennett, 963. 
 Dennis v. Stoughton, 333. 
 Denny v. Faulkner, 1403. 
 
 V. Gilman, 659. 
 
 V. Smith, 871. 
 
 V. Williams, 1319, 1375. 
 
 Denson v. Stewart, 1074. 
 Dent V. Bennett, 740. 
 
 V. Cock, 893. 
 
 Denton v. Adams, 109. 
 
 V. McKenzie, 690. 
 
 Depew V. Limestone Bank, 285. 
 De Pouilly, Succession of, 82. 
 Derby v. Phelps, 1275. 
 
 625 
 
DIG 
 
 INDEX TO THE CASES CITED. 
 
 DOE 
 
 Dermott v. Jones {23 How. U. S. 220), 
 
 1444. 
 0. Jones (2 Wal. 1), 187, 591, 597, 
 
 1444. 
 Derrick v. Brown, 1282. 
 
 a. Kennedy, 9.37. 
 
 V. Monette, 323. 
 
 Derry Bank v. Webster, 355. 
 
 Desha v. Robinson, 680, 833. 
 
 Deshon ». Eaton, 1362. 
 
 Des Moines v. Hinkley, 164. 
 
 De Sobry v. De Laistre, 1391. 
 
 De Soto V. Dickson, 383. 
 
 Dessert v. Scott, 787. 
 
 Detroit v. Jackson, 1078. 
 
 Detroit, &c. Railroad v. Forbes, 1292. 
 
 Deux V. JefFeries, 857. 
 
 Devendorf o. West Va. Oil, &c. Co., 343. 
 
 Dever v. Corcoran, 479. 
 
 Deverell v. Bolton, 1049. 
 
 Deverill v. Barnell, 785. 
 
 Devers v. Becknell, 1081. 
 
 Devin w. Himer, 1167. 
 
 Devine v. Edwards (87 111. 177), 1445. 
 
 0. Edwards (101 111. 138), 1421. 
 
 Devianey ». Reynolds, 10 71. 
 Devlin v. Brady, 499. 
 
 V. New York, 1182. 
 
 , People v., 208. 
 
 V. Second Avenue Railroad, 1431. 
 
 Devol V. Halstead, 864. 
 
 Dewey v. Alpena School Dist., 604. 
 
 De Witt V. Buckley, 404. 
 
 De Wolf V. Johnson, 1374. 
 
 D'Wolf !). Rabaud, 1230. 
 
 De Wolfw. Strader, 173. 
 
 De Wutz V. Hendricks, 1387. 
 
 Dexter v. Snow, 1209. 
 
 Dey 0. Day, 675. 
 
 De Zeng v. Biiley, 851, 874. 
 
 Dial V. Wood, 907. 
 
 Diamond v. Lawrence, 1187. 
 
 Diamond Match Co. v. Powers, 1370, 
 
 Dibol V. Minott, 382. 
 
 Dicken v. Morgan, 76. 
 
 Dickenson v. Davis, 660. 
 
 V. Hatfield, 1362. 
 
 Dickerman v. Lord, 725. 
 
 V. Miner, 751. 
 
 Dickerson v. Chrisman, 1 237. 
 
 «. Evans, 673. 
 
 — — V. Ripley, 62, 135, 281. 
 Dickins v. Jones, 632. 
 Dickinson v. Conway, 1225. 
 
 V. Dodds, 3 13, '325, 326. 
 
 V. Gay, 453. 
 
 !). Hall, 70. 
 
 w. Lilwall, 1062. 
 
 V. Richmond, 544. 
 
 Dickson «. Gulp, 673. 
 V. Harris, 169. 
 
 626 
 
 Dickson v. Thomas, 534. 
 Dietrich v. Koch, 1203. 
 Dietz V. Farish, 22, 319, 356. 
 
 V. Sutcliffe, 678, 679. 
 
 Biggie V. London, &c. Railway, 1015. 
 Dikeman o. Norrie, 285. 
 Dilk V. Keighley, 911, 920. 
 Dill V. Bowen, 940. 
 
 V. Wareham, 834. 
 
 Dillard v. Moore, 664. 
 
 V. Paton, 457. 
 
 Dillingham v. Blood, 543, 547. 
 
 V. Estill, 851. 
 
 Dilliou V. Crook, 1298. 
 Dillon V. Allen, 471. 
 
 V. Anderson, 348, 841. 
 
 V. Bowles, 911. 
 
 V. Brown, 1152. 
 
 Dimes v. Ardcn, 216. 
 Dingle v. Hare, 1063. 
 Disborough v. Neilson, 785. 
 Dishon i). Schorr, 1146. 
 Dismukes v. Parrott, 384. 
 Di Sora v. Phillipps, 377. 
 Distilled Spirits, 481. 
 Ditch V. Vollhardt, 176. 
 Ditto V. Harding, 1349. 
 Diversy v. Kellogg, 1105. 
 Dix V. Atkins, 418. 
 Dixon V. Duke, 1324. 
 
 V, Dunham, 449. 
 
 V. Merritt, 925, 942. 
 
 V. Olmstead, 496. 
 
 V. United States, 393, 443. 
 
 Doane v. Dunham, 456. 
 
 V. Willcutt, 277. 
 
 Dobbins v. Dupree, 1127. 
 Dobell V. Hutchinson, 1131. 
 Dobson V. Keys (Cro. Jac. 261), 115. 
 
 V. Simonton, 304. 
 
 Dodd V. Arnold, 676. 
 
 (J. Bishop, 1120. 
 
 V. Farlow, 449. 
 
 , State v., 1452. 
 
 V. Wakeman, 1121. 
 
 Dodds V. Wilson, 233, 656, 958, 964. 
 Dodge V. Adams, 44. 
 
 V. Gardiner, 372. 
 
 V. Greeley, 827, 828. 
 
 V. Lambert, 844, 1226. 
 
 V. Lean, 1249. 
 
 V. McClintock, 1300. 
 
 V. McDonnell, 1100. 
 
 1>. McKay, 1152. 
 
 V. Meyer, 307. 
 
 V. Oatis, 71. 
 
 V. Rogers, 1431. 
 
 V. Van Lear, 591. 
 
 V. Woolsey, 559. 
 
 Dodson V. Kayes (Yelv. 193), 114, 115. 
 Doe V. Thompson, 1081. 
 
DOW 
 
 INDEX TO THE CASES CITED. 
 
 DVS 
 
 Dffibler v. Waters, 40. 
 Dohoney o. Dohoney, 544. 
 Dole V. Thuvlow, 362. 
 Don V. Lippmann, 1390, 1403. 
 Donaldson v. Farwell, 667, 673. 
 
 u. Kendall, 1151. 
 
 Donellan v. Read, 1283. 
 Donelson v. Posey, 983. 
 
 V. Young, 661. 
 
 Donovan v. Pitcher, 1370, 1378. 
 
 Doolin V. Ward, 528. 
 
 Doolittle V. Dininny, 193. 
 
 Doran o. Smith, 903. 
 
 Dorchester, &c. Bank v. New England 
 
 Bank, 1067. 
 Doremus v. Howard, 1309. 
 Dorlarque v. Cress, 292. 
 Dorman v. Wilson, 176. 
 Dorr V. School District, 390. 
 Dorrington v. Minnick, 1210. 
 Dorsey v. Hardesty, 1390. 
 
 V. Thompson, 270. 
 
 Dorwin i». Smith, 1265. 
 Dotson V. Bailey, 782. 
 Doty V. Wilson, 92. 
 Doubleday v. Kress, 1061. 
 Donghaday v. Crowell, 844, 1226. 
 Dougherty v. Central Nat. Bank, 826. 
 
 V. Whitehead, 219. 
 
 Doughty V. Owen, 496. 
 Douglas V. Bennett, 942. 
 
 V. Chapin, 869. 
 
 V. Oldbam, 1404. 
 
 Douglass V. Brice, 194. 
 
 V. Howland, 119. 
 
 V. Pike, 569. 
 
 V. Scott, 274. 
 
 V. Spears, 1246. 
 
 Doulson V. Matthews, 1398. 
 Donthitt ». Stinson, 117, 886. 
 Doutre, Eeg. v., 219, 456. 
 Donville v. Merrick, 496. 
 Dow V. Chambers, 49. 
 
 V. Clark, 1220. 
 
 V. Moore, 1161, 1162. 
 
 V. Rowell, 1385. 
 
 V. Sanborn, 667. 
 
 Dowd V. Tucker, 668. 
 Dowdy V. McLellan, 73, 598. 
 Dowling ». Lawrence, 664. 
 Down !>. Hatcher, 50. 
 Downer K. Frizzle, 1434. 
 Downes v. Ship, 655. 
 Downey v. Burke, 835. 
 
 V. Hinchman, 76. 
 
 Downing v. Freeman, 190. 
 
 V. Mann, 1157. 
 
 V. Ringer, 471. 
 
 Downs V. Marsh, 333. 
 
 V. Porter, 120. 
 
 Dows V. Swett (120 Mass. 322), 1259. 
 
 Dows V. Swett (134 Mass. 140), 1263. 
 Doyle V. Continental Ins. Co., 496. 
 
 V. Dixon, 768, 1276. 
 
 V. Knapp, 61. 
 
 V. Mizner, 304. 
 
 Drage v. Netter, 855. 
 Drake v. Barker, 1028. 
 
 V. Beckham, 1146. 
 
 V. Hill, 1422. 
 
 V. Root, 277. 
 
 V. Wells, 1300. 
 
 V. White, 606. 
 
 Draper v. Cowles, 649. 
 
 • V. Randolph, 187, 1444. 
 
 V. Rice, 169, 1062. 
 
 Draughan v. Bunting, 1265. 
 Drayton v. Reid, 1417. 
 Dresel v. Jordan, 805. 
 Dresser v. Dresser, 1277. 
 
 V. Wood, 1223. 
 
 Dreutzer v. Lawrence, 394. 
 Drew V. Claggett, 834. 
 
 V. Clarke, 705. 
 
 V. Nunn, 970, 1055, 1056. 
 
 V. Smith, 1400. 
 
 Drinkwater v. Jordan, 874. 
 
 V. London Assurance Corp., 414. 
 
 DriscoU II. Green, 386. 
 Druiff V. Parker, 111, 707. 
 Drammond v. Burrell, 1280. 
 
 V. Couse, 1204. 
 
 V. Hopper, 980. 
 
 Druraright v. Philpot, 1095, 1151. 
 Drury o. Defontaine, 536, 538. 
 
 V. Fay, 285. 
 
 V. Foster, 1168. 
 
 V. Young, 1244, 1249. 
 
 Dryden v, Kellogg, 243. 
 
 Duble V. Batts,,322. 
 
 Dubois V. Delaware, &c. Canal, 834. 
 
 Dubose V. Wheddon, 916. 
 
 Dubuque, &c. College v. Dubuque, 1017. 
 
 Dudley v. Butler, 499. 
 
 Duell V. Bear River, &c. Co., 296. 
 
 Duff a. Snider, 1274. 
 
 Duffieldf. Creed, 1351. 
 
 Duffltt V. Tuhan, 1358. 
 
 Duffy V. Shockey, 517, 1452. 
 
 Dufief y. Boykin, 410. 
 
 Duke V. Asbee, 498. 
 
 V. Harper, 1302. 
 
 Duke de Cadaval v. Collins, 725. 
 Dula V. Cowles, 1444. 
 Dulany v. Green, 980. 
 Dullaghan v. Fitch, 1452. 
 Dumont v. Dufore, 505. 
 Dunbar v. Todd, 928. 
 Duncan v. Gibson, 591. 
 
 V. Helm, 1388. 
 
 V. Hodges, 1174.'. 
 
 V. Hogue, 670. 
 
 627 
 
BAG 
 
 INDEX TO THE CASES CITED. 
 
 BDW 
 
 Duncan v. McCuUough, 642. 
 
 V. Sanders, 45. 
 
 V. Topham, 328. 
 
 V. United States, 1393. 
 
 Dundas v. Bowler, 1385. 
 Dunham v. Branch, 874. 
 
 V. Jackson, 1101. 
 
 V. Johnson, 99. 
 
 V. Stockbridge, 487. 
 
 Dunkart v. Rineheart, 316. 
 Dunkin v. Hodge, 31, 493. 
 Dunklin e. Wilkins, 1179. 
 Dunlap V. BeiTy, 1309. 
 
 V. Hand, 1421. 
 
 V. Hunting, 805. 
 
 V. Mobley, 418. 
 
 Dunlop V. Ball, 1001. 
 
 V. Gregory, 517. 
 
 V. Higgins, 327, 328. 
 
 Dunn V. Adams, 1184. 
 
 V. Clements, 755. 
 
 V. Hartford, &c. Railroad, 1109. 
 
 V. Marston, 1436. 
 
 V. Mobile Bank, 412. 
 
 V. St. Andrews Church, 1020. 
 
 V. Seymour, 1220. 
 
 V. Tharp, 1230. 
 
 V. Welsh, 1390. 
 
 V. West, 1265. 
 
 Dunning v. Mauzy, 807. 
 
 Dunscomb v. Bunker, 1383. 
 
 Dunton v. Brown, 904, 917, 925, 938. 
 
 Dunwidie v. Kerley, 1121. 
 
 Dupee V, Boston Water-power Co., 1013. 
 
 Dupont V. Wertheman, 1062. 
 
 Durant v. Pratt, 288, 289. 
 
 Durham v. Bischof, 1 220. 
 
 Durst V. Burton, 1112. 
 
 V. Swift, 1.331. 
 
 Duryea v. New York (62 N. Y. 592), 414. 
 Duryee o. New York ( 96 N. Y. 477 ) , 41 8. 
 Dusenbury v. Ellis, 1120. 
 Dutch V. Mead, 342. 
 Dutton V. Warschauer, 1096. 
 
 V. Willner, 881. 
 
 Du Val V. Marshall, 285. 
 D wight V. Hamilton, 520. 
 
 V. Pomeroy, 164. 
 
 V. Whitney, 1139. 
 
 Dyer o. McPhee, 61. 
 
 V. Pearson, 1062. 
 
 Dykers ». Townsend, 1317. 
 
 Eades v, Vandeput, 227. 
 
 Eagan v. Kergill, 224, 1354. 
 
 Eagle V. Smith, 332. 
 
 Eagle Manuf. Co. v. Jennings, 40. 
 
 Eagle Mowing, &c. Co. v. Shattuck, 1 263. 
 
 Eagle Woolen Mills i;. Monteith, 1016. 
 
 Eagleton v. Gutteridge, 1167. 
 
 628 
 
 Earl V. Peck, 45. 
 Earle v. Bickford, 834. 
 
 V. Chace, 740. 
 
 V. Coburn, 187. 
 
 V. Oliver, 95. 
 
 V. Peale, 914. 
 
 V. Reed, 908, 925. 
 
 Early v. Owens, 1211. 
 
 Earnest v. Parke, 96. 
 
 Earp V. Tyler, 600. 
 
 East Hartford v. Hartford Bridge, 561. 
 
 East India Co. v. Hensley, 1074. 
 
 East London Waterworks v. Bailey, 
 
 1013. 
 East Tennessee, &c. Railroad v. Staub, 
 
 838. 
 Easter v. White, 1265. 
 Eastern Railroad v. Benedict, 1078, 1080. 
 Eastern Union Railway v. Hart, 1013. 
 Eastman v. Ramsey, 1220. 
 
 V. Wright, 875. 
 
 Easton v. Strother, 702. 
 Eastwood V. Bain, 1 120. 
 
 V. Kenyon, 44, 89, 1264. 
 
 Eaton V. Gay, 1059. 
 
 V. Smith, 404, 449. 
 
 V. Trowbridge, 178. 
 
 V. Winnie, 284. 
 
 V. Woolly, 1416, 1417, 1421. 
 
 Eberts r. Selover, 1110. 
 Eblin V. Miller, 48. 
 Echols V. Cheney, 1070. 
 
 «. Dodd, 1113. 
 
 Eckenrode v. Canton Chemical Co., 839. 
 Eckeru. Bohn, 1239. 
 
 V. McAllister (45 Md. 290), 1239. 
 
 !>. McAllister (54 Md. 362), 63. 
 
 Eckert v. Pickel, 757. 
 Eckhart v. Reidel, 1071. 
 Eddy V. Capron, 498. 
 
 V. Graves, 773. 
 
 V. Herrin, 720. 
 
 V. Roberts, 1258. 
 
 Edgcombe v. Rodd, 211. 
 Edgerly v. Shaw, 937, 943. 
 Edgerton v. Wolf, 925, 938. 
 Edgeware Highway Board v. Harrow 
 
 Dist. Gas Co., 38, 61. 
 Edie V. East India Co., 1174. 
 Edinburg Am. &c. Co. v. Latham, 703. 
 Edmond's Case, 943. 
 Edwards v. Bailey, 274, 391, 395, 855. 
 
 V. Davenport, 962, 970, 972. 
 
 V. Davis, 949. 
 
 V. Grand Junction Railway, 501. 
 
 v. Grand Trunk Railway (48 Maine, 
 
 379), 1313. 
 V. Grand Trunk Railway (54 Maine, 
 
 105), 1316. 
 
 V. Handlejr, 829. "• 
 
 V. Haverstick, 1 203. 
 
ELL 
 
 INDEX TO THE CASES CITED. 
 
 BTT 
 
 Edwards ». Nelson, 44, 100. 
 
 V. Smith, 12i0. 
 
 V. West, 606. 
 
 Egerton ». Brownlow, 476. 
 
 V. Mathews, 1247. 
 
 Egery v. Decrew, 1363. 
 
 Eggleston v. Buck (24 III. 262), 187. 
 
 V. Buck (31 111. 254), 1458. 
 
 V. Wagner, 1249. 
 
 Ehle V. Judson, 44, 70, 614. 
 
 Ehlert b. Klenger, 1420. 
 
 Eichelberger v. Barnitz, 664. 
 
 V. McCauley, 1316. 
 
 Eisenbise v. Eisenbise, 1198. 
 
 Elbinger Actien-Gesellschaft v. Clave, 
 1076. 
 
 Elder v. Allison, 661. 
 
 V. Dyer, 1362. 
 
 V. Hood, 217. 
 
 Eldred v. Hazlett, 287. 
 
 Eldridge v. Holway, 1067. 
 
 V. See Tup Co., 386. 
 
 Elfeltw. Snow, 651. 
 
 Eliason v. Henshaw, 323. 
 
 Eliot V. Lawton, 1355. 
 
 Eliza, The (Daveis, D. C. 316), 592. 
 
 Eliza, The (2 Gallis. 4), 1000. 
 
 Elkins V. Boston, &c. Railroad, 432, 1080. 
 
 V, Parkhurst, 471. 
 
 Ellery v. Cunningham, 70. 
 Ellicott !!. Barnes, 176. 
 
 V. Turner, 1274. 
 
 Ellinger v. Growl, 687. 
 Ellington v. King, 818. 
 Elliot V. Davis, 343. 
 
 V. Ince, 970. 
 
 V. Northeastern Railway, 439. 
 
 V. Sleeper, 426. 
 
 Elliott V. Benedict, 1209. 
 
 V. Bently, 1208. 
 
 u. Ellis, 383. 
 
 V. Horton, 709. 
 
 V. Minto, 1395. 
 
 V. Norfolk, 593. 
 
 V. Sackett, 709. 
 
 V. Stocks, 1045. 
 
 V. Swartwout, 631. 
 
 Ellis I). Adderton, 72. 
 
 V. Bray, 1249. 
 
 V. Deadman, 1249. 
 
 ■ V. Ellis (1 Dev. Eq. 398), 830. 
 
 V. Ellis (1 Ld. Eaym. 344; 5 Mod 
 
 368), 914. 
 
 V. Hammond, 545. 
 
 V. Jones, 516. 
 
 II. McHenry, 1401. 
 
 V. Paige, 1302. 
 
 V. Park, 377. 
 
 V. Secor, 82. 
 
 EUmaker v. EUmaker, 404. 
 Ellsworth V. Mitchell, 471. 
 
 Elmore v. Stone, 1319. 
 
 Elsberry v. Boykin, 351, 352. 
 
 Elsee V. Gatward, 64. 
 
 Elston V. Chicago, 632. 
 
 V. Jasper, 974, 975, 977. 
 
 Elting, State v., 504. 
 
 V. Vanderlyn, 1266. 
 
 Elwell V. Chamberlin, 1074, 1114. 
 
 V. Martin, 901. 
 
 V. Shaw, 1071. 
 
 Ely w. Hair, 1151. 
 
 V. Harvey, 1029. 
 
 V. Stewart, 653. 
 
 ti. Wolcott, 75. 
 
 Emerick v. Chesrown, 1354. 
 
 Emerson v. Brigham, 244. 
 
 V. Providence Hat Manuf. Co., 1018. 
 
 1049, 1067. 
 
 V. White, 386. 
 
 V. Wiley, 249. 
 
 Emery v. Chase, 75. 
 
 V. Fowler, 408. 
 
 V. Kempton, 482. 
 
 V. Smith, 1280. 
 
 Emes V. Hancock, 435. 
 
 Emigrant Indus. Sav. Bank v. Roche, 
 421. 
 
 Emmerson v. Heelis, 1038, 1049, 1131, 
 1296. 
 
 Emmitt v. Brophy, 426. 
 
 Emmons v. Littlefield, 75. 
 
 V. Murray, 937, 942. 
 
 Empress Eng'g Co., In re, 848, 886. 
 
 Enders ;;. Williams, 1210. 
 Enfield v. Permit, 310. 
 England v. Davidson, 47, 331. 
 Englefield's Case, 106. 
 Engleman v. State, 1338. 
 English V. Benedict, 732. 
 
 V. McNair, 402. 
 
 Engmann v. Immel, 1035, 1363. 
 
 Ensey v. Hines, 223. 
 
 Ensign v. Kellogg, 1454. 
 
 Epperson i;. Nugent, 911. 
 
 Erickson v. Compton, 1080. 
 
 Erie's Appeal, 1013. 
 
 Erie Railway v. Ackerson, 1053. 
 
 V. Union Locomotive, &c. Co., 606. 
 
 Erskine v, Moulton, 382, 386. 
 Esham r. Lamar, 737. 
 Esinay v. Gorton, 321. 
 Esposito V. Bowdeu, 594, 1000. 
 Espy V. Jones, 1271. 
 Essery v. Cowlard, 71. 
 Essex Turnpike v. Collins, 1017. 
 Estabrook v. Gebhart, 1303. 
 
 V. Omaha Hotel, 1422. 
 
 Estes V. Tower, 1439. 
 Esty V. Aldrich, 1274. 
 Etheridget). Binney, 1139. 
 Etter V. Anderson, 1203. 
 
 629 
 
FAN 
 
 INDEX TO THE CASES CITED. 
 
 FEO 
 
 Btterw. Bailey, 1117. 
 
 Biigster V. West, 591. 
 
 Eureka Co. v. Edwards, 925, 937, 940. 
 
 Evans v. Anderson, 1371. 
 
 V. Begleys, 720. 
 
 V. Bell, 497. 
 
 V. Blood, 964. 
 
 V. Eaton, 551. 
 
 V. Fegely, 401. 
 
 V. Foreman, 683. 
 
 V. Horan, 972, 975. 
 
 V. Kittrell, 1371. 
 
 V. Lee, 1016. 
 
 V. Montgomery, 680. 
 
 V. Roberts, 1296. 
 
 V. Snyder, 300. 
 
 V. Trenton, 47, 500. 
 
 V. United States Life Ins. Co., 586. 
 
 V. Walton, 899. 
 
 V. Wells, 875. 
 
 V. Williamson, 751, 753. 
 
 Evansville v. Morris, 543. 
 Evants v. Strode, 705, 707. 
 Evelyn v. Chichester, 920. 
 Evered, Rex v., 616. 
 Everett v. Whitney, 352. 
 Everingham v. Meighan. 58, 488. 
 Bverson v. Carpenter, 925, 943. 
 Everts v. Agnes, 358. 
 Ewaldtw. Farlow, 172. 
 Ewell«. Daggs, 616. 
 Ewing V. Burnet, 402. 
 
 V. Toledo Sav. Bank, 1005. 
 
 Ewins V. Gordon, 78. 
 
 Exall V. Partridge, 93, 211, 214, 215. 
 
 Exton V. Scott, 352. 
 
 Exum 1-. Brister, 1111. 
 
 Eylar v. Read, 176. 
 
 Eyster v. Parrott, 795. 
 
 Fackler v. Ford, 487. 
 Fahey v. Clarke, 348. 
 Fairbank v, Leary, 518. 
 Fairbrother v. Prattent, 1038. 
 Fairchild v. Holly, 877. 
 
 V. Rasdall, 1329. 
 
 Fairfax v- Hunter, 999. 
 
 Fairlie v. Fenton, 1136. 
 
 Fairly v. McLean, 1189. 
 
 Fairmount, &c. Passenger Railway v. 
 
 Stutler, 908. 
 Faith V. Richmond, 1149. 
 Fake v. Smith, 245. 
 Falconbury v. Kendall, 55. 
 Falley v. Giles, 414. 
 Fallowes v. Taylor, 119. 
 Falls Wire Manuf. Co. v. Broderick, 323. 
 Fannin v. Anderson, 871. 
 Fanson v. Linsley, 782. 
 Fant V. Cathcart, 925. 
 
 630 
 
 Farebrother v. Simmons, 1245. 
 
 Farley v. Pettes, 295. 
 
 D. Thompson, 131. 
 
 Farlin v. Sook, 1210. 
 
 Farmer v. Gregory, 342. 
 
 Farmers, &c. v. Flint, 96. 
 
 Farmers Bank v. Gunnell, 567. 
 
 Farmers, &c. Bank v. Detroit, &c. Rail- 
 road, 1012. 
 
 Farmers Ins. Co. v. Williams, 1 102. 
 
 Farmers Loan, &c. Co. v. Commercial 
 Bank, 372. 
 
 Farmers & Manuf. Bank v. Haight, 111. 
 
 Farmers Mutual Ins. Co. v. Taylor, 1 104. 
 
 Farmers Nat. Bank v. Fletcher, 673. 
 
 Farmington Academy v. Allen, 219. 
 
 Farnam v. Brooks, 958, 963. 
 
 Farnham v. Thomas, 1354, 1355. 
 
 Farnsworth v. Boardman, 75. 
 
 Farnum v. Fowle, 1438. 
 
 Farquhar v. Morris, 1437. 
 
 Farquharson v. Barstow, 319. 
 
 Farrar v. Barton, 471, 489. 
 
 V. Bessey, 949. 
 
 V. Bridges (3 Humph. 566), 668. 
 
 V. Bridges (5 Humph. 411), 352. 
 
 V. Christy, 1459. 
 
 V. Duncan, 1060. 
 
 V. Patton, 1237. 
 
 V. Rowly, 412. 
 
 V. Toliver, 68. 
 
 Farrell v. Farrell, 230. 
 
 FaTrelly v. Ladd, 12.54. 
 
 Farrington v. Barr, 194, 275. 
 
 V. Hodgdon, 55. 
 
 V. Tennessee, 557, 563. 
 
 Farrow v. Wilson, 601. 
 
 Farwell v. Rockland, 208. 
 
 V. Rogers, 1341. 
 
 Fash V. Ross, 1077. 
 
 Fauble v. Davis, 1420. 
 
 Faulder v. Silk, 977. 
 
 Faulkner v. Lowe, 579. 
 
 Fawcett v. Eberly, 503. 
 
 V. Osborn, 243. 
 
 Fawcetts v. Kimmey, 821. 
 
 Faxon v. Durant, 82. 
 
 V. Mansfield, 835. 
 
 Fay V. Burditt, 970, 975. 
 
 V. Guynon, 1180, 1420. 
 
 V. Oatley, 721. 
 
 V. Richards, 72. 
 
 V. Richardson, 349. 
 
 V. Smith, 755, 765. 
 
 V. Tower, 293. 
 
 Fayette CountyRailroad,Common wealth 
 v., 560. 
 
 Fayetteville Bank v. Clark, 1422. 
 
 Fears v. Story, 1263. 
 
 Feay v. Decamp, 834. 
 
 Feeel v. Guinault, 970. 
 
FIS 
 
 INDEX TO THE CASES CITED. 
 
 FLO 
 
 Feeter v. Heath, 1119. 
 Feller v. Green, 719. 
 Fellows V. Oneida, 1 1 13. 
 
 i>. Stevens, 53, 55. 
 
 Felton u. Dickinson, 1220. 
 
 V. Gregory, 720. 
 
 V. Smith, 1216. 
 
 Fennell v. Ridler, .537. 
 Fenner v. Meares, 1 1 81 . 
 Fenno v. English, 1355. 
 Fenton v. Emblers, 1273, 1279. 
 
 V. Ham, 527. 
 
 v. HoUoway, 980. 
 
 V. Livingstone, 1378. 
 
 Fenwick v. Brinkworth, 1 70. 
 
 V. Grimes, 665. 
 
 V. Phillips, 54. 
 
 Feret v. Hill, 670. 
 Ferguson v. Bell, 925. 
 
 V. Bobo, 902, 903. 
 
 V. Landram, 793. 
 
 Fergusson v. Fyffe, 1373. 
 
 V. Norman, 471. 
 
 Fermor's Case, 641. 
 Ferrell v. Maxwell, 1265. 
 Ferris v. Adams, 498. 
 Fessenden v. Mussey, 254. 
 Fetrow v. Wiseman", 929, 933. 
 Fewings, Ex parte, 141. 
 Fichthorn v. Boyer, 1151. 
 Field V. Black, 1436. 
 
 V. Holbrook, 830. 
 
 V. Huston, 406. 
 
 V. Runk, 1319. 
 
 V. Stagg, 1168. 
 
 Filkins «. Whyland, 1 77. 
 
 Finch V. Finch, 1269, 1292, 1331. 
 
 Findley v. Armstrong, 386. 
 
 V. Findley, 404. 
 
 Fine v. Hornsby, 1315. 
 
 V. Rogers, 816. 
 
 Finn v. Donahue, 542, 545. 
 
 Finnegan v. Carraher, 299. 
 
 Finney v. Apgar, 1316. 
 
 First Baptist Church v. Brooklyn Fire 
 
 Ins. Co., 154, 1274. 
 First National Bank v. Church, 62. 
 
 V. Crittenden, 97. 
 
 V. Hall, 1083. 
 
 V. Lierman, 346. 
 
 V. Myers, 176. 
 
 V. Peck, 70. 
 
 First Parish in Sutton v. Cole, 1008, 
 
 1088, 1226. 
 Fish V. Hubbard, 375. 
 
 , People v., 14. 
 
 V. Roeeberry, 244. 
 
 Fishback v. Miller, 653. 
 Fisher u. Fields, 1292. 
 
 V. Hall, 350, 352. 
 
 V. Mershon, 757. 
 
 Fisher v. Mowbray, 934. 
 
 V. Otis, 1392. 
 
 V. Parry, 1395. 
 
 V. Probart, 688. 
 
 V. Saylor, 642, 683. 
 
 V. Shattuck, 721. 
 
 V. Shaw, 1454. 
 
 V. Smith, 795. 
 
 V. Waltham, 530. 
 
 D. Wilson, 680. 
 
 Fiske 0. Holmes, 1223. 
 Fitch V. Casey, 834. 
 
 V. Remer, 1387. 
 
 V. Sutton, 50. 
 
 Fitts V. Brown, 713. 
 
 V. Hall, 902. 
 
 Fitzgerald v. Alexander, 96. 
 
 V. Allen, 823, 834. 
 
 V. Morrissey, 1263. 
 
 V. Reed, 966. 
 
 Fitzhugh V. Dennington, 894. 
 
 V. Wilcox, 977. 
 
 Fitzmaurice v. Bayley, 1249. 
 Fitzpatrick v. Cottingham, 1450, 1452. 
 
 V. Hearne, 567. 
 
 -;— V. Woodruff, 823, 829. 
 Fitzsimmons v. Joslin, 1204. 
 Fitzsimons v. Guanabani, 1382. 
 Fivaz V. NichoUs, 1203. 
 Flaacke v. Jersey City, 708. 
 Flagg V. Baldwin, 1382. 
 Flanagin v. Hambleton, 174. 
 Flanders v. Fay, 174. 
 
 V. Putney, 1445. 
 
 Flanegan v. Garrison, 510. 
 Flanigan v. CruU, 1 133. 
 
 V. Turner, 273. 
 
 Flannagan v. Kilcome, 57, 61. 
 Flannery v, Rohrmayer, 1421. 
 Fleckner r. United States Bank, 431. 
 Fleet V. Murton, 1086. 
 Fleming v. Donahoe, 1329. 
 
 V. Dunbar, 1151. 
 
 V. Gilbert, 133. 
 
 V. Hayne, 96. 
 
 V. Potter, 1436. 
 
 V. Ramsey, 70. 
 
 Flemm v. Whitmore, 1265. 
 Flemming v. Marine Ins. Co., 582. 
 Flemyng v. Hector, 1157. 
 Flenner v. Flenner, 1235. 
 Fletcher v. Cole, 828. 
 
 D.Peck, 555, 557, 563, 624. 
 
 Flexner v. Dickerson, 920, 929, 930. 
 
 Flight V. Reed, 95. 
 
 Flindt V. Waters, 1001. 
 
 Flinn v. Brown, 754. 
 
 Florence Machine Co. v. Daggett, 456. 
 
 Florentine v. Barton, 558. 
 
 Flower v. Sadler, 494. 
 
 Floyd V. Harrison, 1258. 
 
 631 
 
'FOU 
 
 INDEX TO THE CASES CITED. 
 
 FEE 
 
 'Floyd V. Taylor, 352. 
 "Floyd Acceptances, The, 988. 
 Foakes v. Beer, 50. 
 Foerder v. Wesner, 1 92. 
 Foley V. Cowgill, 357, 404. 
 
 V. Howard, 355. 
 
 FoUansbe v. Kilbreth, 194. 
 
 Folly V. Vantuyl, 352. 
 
 Folsom V. Great Falls Manuf. Co., 1292. 
 
 V. Moore, 1309. 
 
 Fonda v. Van Home, 917, 927. 
 Fontaine v. Aresta, 1458. 
 Foot V Mtna Life Ins. Co., 421. 
 Forbes v. Hamilton, 1294. 
 
 . «. McDonald, 525. 
 
 V. Smiley, 815. 
 
 Force ». Haines, 220. 
 Ford, In re, 664. 
 
 V. Beech, 857. 
 
 V. Buckeye State Ins. Co., 1383. 
 
 ; V. EUingwood, 42, 124. 
 
 n. Jermon, 1 208. 
 
 u. Phillips, 937, 943, 944. 
 
 V. Smith, 816. 
 
 w. Stuart, 1330. 
 
 V. United States, 767. 
 
 «. Ward, 219. 
 
 V. Williams, 1080. 
 
 Fordley's Case, 787. 
 Fordyce I). Nelson, 1194. 
 Fores v. Johnes, 471, 505, 508. 
 Forman v. Wright, 58. 
 Formby v. Pryor, 502. 
 Forney v. Shipp, 76, 1076. 
 Forster v. Fuller, 1077. 
 Forsyth v. Wheeling, 1365. 
 Forsythe v. State, 505. 
 Fort Plain Bridge v. Smith, 575. 
 Fort Scott V. Hickman, 1360. 
 Forth V. Stanton, 1251. 
 Forward v. Harris, 1375. 
 
 V. Pittard, 593, 596. 
 
 Foshay v. Ferguson, 717, 718, 721, 724. 
 Foss V. Hildreth, 971. 
 
 V. Richardson, 71. 
 
 Foster v. Clark, 486. 
 
 V. Dryfus, 1126. 
 
 V. Gressett, 679. 
 
 V. Kennedy, 661. 
 
 V. Kingsley, 710. 
 
 V. Mackinnon, 646, 648, 703. 
 
 V. McO'Blenis, 1274. 
 
 V. Mansfield, 359, 361. 
 
 0. Metts, 63. 
 
 V. Oxford, &c. Railway, 1022. 
 
 V. Paine, 1059. 
 
 V. Rison, 1357. 
 
 V. Smith, 1087. 
 
 V. Stewart, 227. 
 
 V. Wallace, 1309. 
 
 Foubert v. Turst, 1373. 
 
 632 
 
 Foucht). Wilson, 1109. 
 Fournier v. Cyr, 114, 116, 1170. 
 Fourth School District v. Wood, 1016. 
 Fouty V. Fouty, 124, 665. 
 Fowle V. Bigelow, 383. 
 
 V. Kerchner, 384. 
 
 Fowler v. Armour, 838. 
 
 V. Burget, 1234, 1238. 
 
 V. Donovan, 216. 
 
 V. Morrill, 1127. 
 
 V. New York Gold Exch. Bank, 
 
 1109. 
 
 V. Shearer, 1071. 
 
 V. Woodward, 383. 
 
 Fox V. Drake, 994. 
 
 V. Harding, 795. 
 
 V. Kitton, 782. 
 
 V. Longly, 1237. 
 
 V. Norton, 1151. 
 
 V. Southack, 999. 
 
 Foy V. Haughton (83 N. C. 467), 645. 
 
 V. Haughton (85 N. C. 168), 72. 
 
 Foye V. Patch, 345, 346. 
 Frame v. August, 1261, 1266. 
 Francis v. Felmit, 925. 
 
 V. Rankin, 1209. 
 
 Frank v. Chemical Nat. Bank, 700. 
 
 V. Lanier, 1354. 
 
 Frankfort Bank v. Markley, 1358. 
 Franklin v. Ezell, 1226. 
 
 V. Greene, 688. 
 
 V. Miller, 74, 828. 
 
 Eraser v. McPherson, 1064. 
 Fratt V. Fiske, 680. 
 Fraaer v. Robinson, 624. 
 Frazier v. Erie Bank, 1087. 
 
 V. Gains, 1174. 
 
 V. Massey, 928. 
 
 Frear v. Hardenbergh, 1292. 
 Freary v. Cooke, 455. 
 Fredenburg v. Turner, 1436. 
 Fredendall v. Taylor, 1161. 
 Fredericks v. Fasnacht, 319. 
 Freed v. Brown, 975, 977. 
 Freeman v. Baker, 662. 
 
 V. Cooke, 284, 296. 
 
 V. Cooper, 1237. 
 
 V. Headley, 634, 1294. 
 
 V. More, 950. 
 
 V. Peay, 349. 
 
 V. Robinson, 90. 
 
 V. Staats, 983. 
 
 Freeth v. Burr, 828. 
 Fremont Ferry v. Dodge, 300. 
 French v. Auburn, 217. 
 
 V. French (3 N. H. 234), 362. 
 
 V. French (8 Ohio, 214), 983. 
 
 V. McAndrew, 929, 942. 
 
 V. Millard, 71. 
 
 V. New, 136, 156. 
 
 V. Pearce, 412. 
 
GAL 
 
 INDEX TO THE CASES CITED. 
 
 GAXJ 
 
 French v. Price, 1079. 
 
 V. Smith, 210. 
 
 V. Spencer, 277. 
 
 i>. Townes, 587. 
 
 Trenzel w. Miller, 661. 
 Frey v. Aultraan, 1358. 
 Fried v. Royal Ins. Co., 1226. 
 Friedley v. Hamilton, 173. 
 Friend v. Harrison, 509. 
 Friermood v. Rouser, 70. 
 Fiierson v. Galbraith, 1389. 
 Frinlc V. Adams, 173. 
 Frisbie v. Lamed, 53. 
 Frits V. Frits, 346. 
 Frost V. Belmont, 499. 
 
 V. Deerina;, 345. 
 
 V. Everett, 766. 
 
 V. Hanford, 1145. 
 
 V. Knight, 1428, 1429. 
 
 r. Tan-, 224, 1278. 
 
 Fry, In re, 1156. 
 
 Frye v. Banlt of Illinois, 1193, 1220. 
 
 Fuentes v. Montis, 976, 1138. 
 
 Fugure u. Mutual Society, 60. 
 
 Fuhr V. Dean, 1300. 
 
 Fnllam v. West Brookfield, 994. 
 
 Fuller V. Duren, 186. 
 
 V. Hubbard, 1433. 
 
 V. Leet, 1389. 
 
 V. Little, 838. 
 
 V. Williams, 1433. 
 
 u. Wilson, 1112. 
 
 Fullerton v. Sturges, 753. 
 Fulton, Ex parte, 116. 
 
 V. Woodman, 673. 
 
 Funk V. Gallivan, 535. 
 
 V. Hough, 76. 
 
 V. Newcomer, 290, 298. 
 
 Fuqua v. Dinwiddie, 1360, 1362. 
 Furbush v. Goodwin, 381. 
 Furguson v. Coleman, 690. 
 Furnas v. Durgin, 1167. 
 Furnivall v. Coombes, 387, 1018. 
 
 Gaaru. Huggins, 1148. 
 Gadsden v. Lance, 1274, 1316, 
 Gaffiiey v. Chapman, 874. 
 
 v. Hayden, 921, 1445. 
 
 GaeFord v. 'Stearns, 1303. 
 Gage V. Campbell, 306. 
 
 V. Gage (10 Fost. N. H. 420), 1045. 
 
 V. Gage (36 Mich. 229), 352. 
 
 Gaines v. Briggs, 1117. 
 
 V. Hot Spring, 1365. 
 
 V. Miller, 1351. 
 
 Gainsford v. Griffith, 1456, 1458. 
 Gaither v. Gaither, 961. 
 Galbraith v. McLain, 1303. 
 Gale V. Coburn, 124. 
 V. Leckie, 471, 508. 
 
 Gale V. Nixon, 1243. 
 
 V. Tappan, 1052. 
 
 V. Williamson, 42. 
 
 Gallaher v. District of Columbia, 386. 
 Galley v. Galley, 634. 
 Galloway v. Barr, 45. 
 
 V. London, 518. 
 
 Gallup V. Eobinson, 1126. 
 
 Gallway V. Mathew, 1145. 
 
 Gait V. Galloway, 1053. 
 
 Galton V. Emuss, 528. 
 
 Galway v. Fullerton, 1330. 
 
 Gammon v. Huse, 1148. 
 
 Gandy v. Gandy, 426, 427. 
 
 Gano V. Aldridge, 391. 
 
 Gansevoort v. Lunn, 999. 
 
 Gantly v. Ewing, 572. 
 
 Gantz V. District of Columbia, 414. 
 
 Gape V. Handley, 377. 
 
 Garbutt v. Watson, 1313, 1316. 
 
 Gardener v. Woodyear, 393. 
 
 Gardiner v. Corson, 401. 
 
 V. Harback, 765. 
 
 V. Houghton, 1401. 
 
 V. Morse, 528. 
 
 V. Suydam, 1309. 
 
 Gardiner Manuf. Co. v. Heald, 238. 
 Gardner v. Adams, 1179. 
 
 V. Cole, 1205. 
 
 V. Lachlan, 426. 
 
 V. Lucas, 343. 
 
 V. Merritt, 82. 
 
 V. Ogden, 1398. 
 
 , People v., 1420. 
 
 Gardom, Ex parte, 1247. 
 Garfield w. Huls, 1421. 
 
 V. Paris, 1319. 
 
 Garner v. Garner, 707. 
 Garnett v. Garnett, 390. 
 
 V. Roper, 871. 
 
 V. Yoe, 1458. 
 
 Garnons v. Knight, 351, 352, 353. 
 
 Garnsey v, Gardner, 155. 
 
 Garr v. Bright, 989. 
 
 Garrett v. Mississippi, &c. Railroad, 830. 
 
 Garrison v. Nute, 520. 
 
 Garrow v. Carpenter, 167. 
 
 Gartside v. Silkstone, &c. Co., 1340. 
 
 Gaslight, &c. Co. v. Turner, 471. 
 
 Gasque v. Small, 45. 
 
 Gaston v. Drake, 498. 
 
 Gates V. Bliss, 679, 680. 
 
 V. Caldwell, 248. 
 
 Gathwright v. Callaway, 393. 
 Gatlin v. Wilcox, 815, 828. 
 Gatling v. Newell, 665. 
 Gatzweiler, State v., 567. 
 Gaudette v. Travis, 1319. 
 Gaule V. Bilyeau, 399. 
 Gault V. Hall, 42. 
 V. Stormont, 1249. 
 
 633 
 
GIL 
 
 INDEX TO THE CASES CITED. 
 
 GOL 
 
 Gaussen v. Morton, 1051. 
 Gauthier v. Cole, 1376. 
 Gautzert v. Hoge, 426. 
 Gavin v. Annan, 874. 
 
 V. Burton, 922. 
 
 Gay ». Ballon, 234, 908, 909, 916, 943. 
 
 V. Botts, 40. 
 
 V. Parpart, 509. 
 
 V. Eainey, 1389. 
 
 V. State, 192. 
 
 Gaylord v. Johnson, 1393. 
 Gaylord Manuf. Co. u. Allen, 244. 
 Geary v. Physic, 341 . 
 Geddes v. Pennington, 670. 
 Gee V. Gee, 194. 
 Geiger v. Cook, 70. 
 Gelpcke v. Dubuque, 1187. 
 Gelston v. Hoyt, 998. 
 Genter v. Morrison, 362. 
 George v. Harris, 76. 
 
 V. Tate, 426. 
 
 Georgia Ins. Co. v. Ellicott, 95. 
 Georgia Southern Hailroad v. Reeves, 
 
 1192. 
 Gerald v. Elley, 705. 
 Gerard v. Basse, 1151. 
 Gerdes v. Moody, 709. 
 Gere v. Clarke, 863, 864. 
 German Am. Ins. Co. v. Davis, 702, 708. 
 Gerrish v. German Ins. Co., 1 54. 
 
 V. Glines, 751. 
 
 V. Maher, 1061. 
 
 Getchell v. Whittemore, 385. 
 Getty V. Rountree, 244. 
 Gibbons v. Bell, 1303. 
 
 V. Gibbons, 1129. 
 
 Gibbs V. Bryant, 187, 214. 
 
 V. Fremont, 1391. 
 
 V. Frost, 1168, 1170. 
 
 r. Guild, 1358. 
 
 V. Linabnry, 313, 742. 
 
 V. Smith, 528. 
 
 «. Southam, 1437. 
 
 Gibbs, &c. Manuf. Co. v. Brucker, 544. 
 Gibney v. Curtis, 454. 
 Gibson v. Bogy, 386. 
 
 V. Chouteau, 1230. 
 
 V. Dunnam, 1431. 
 
 V. Partee, 357. 
 
 V. Pelhie, 70. 
 
 «. Soper, 971, 974, 975. 
 
 Gigos V. Cochran, 316. 
 Gil V. Williams, 499. 
 Gilbert v. Burgott, 690. 
 
 V. Groff, 295. 
 
 V. North Amer. Fire Ins. Co , 356. 
 
 V. Port, 1420. 
 
 V. Ross, 226. 
 
 Gilchiist V. Brande, 1148. 
 Giles V. Edwards, 818. 
 V. Halbert, 273. 
 
 634 
 
 Giles V. Sjmonds, 1300. 
 Gilfillan v. Union Canal, 555, 572. 
 Gilkeson v. Gilkeson, 898. 
 Gill V. Bicknell, 1245. 
 
 V. Bradley, 1437. 
 
 V. Henry, 1203. 
 
 Gillespie v. Brooks, 111. 
 
 V. Fort Wayne, &c. Railroad, 1023. 
 
 V. Hamilton, 592, 862. 
 
 V. Reed, 758. 
 
 Gillet V. Burr, 1304. 
 Gillighan v. Boardman, 1266. 
 Gilliland v. Phillips, 479. 
 Gillum V. Dennis, 401. 
 Gilman v. Dwight, 517. 
 
 V. Foote, 877. 
 
 V. Hill, 1318. 
 
 Gilmer v. Gilmer, 579. 
 
 Gilmoreu. Wilbur, 186. 
 
 Gilpin V. Howell, 1080. 
 
 Gilson V. Stewart, 132. 
 
 Gimon v. Davis, 309, 821. 
 
 Girard Life Ins. &c. Co. v. Mutual Life 
 
 Ins. Co., 450. 
 Girardey v. Stone, 1132. 
 Girardy v. Richardson, 506. 
 Giraud v. Richmond, 169, 771, 1280. 
 Gisaf V. Neval, 509. 
 Gisti). Smith, 188,615. 
 Given v. Albert, 1146. 
 Glasgow V. Hobbs, 61. 
 Glass V. Alt, 547. 
 
 V. Glass, 886. 
 
 Glasscock V. Glasscock, 63. 
 
 V. Minor, 664. 
 
 Gleason v. Briggs, 1261. 
 
 Glendale Woolen Co. v. Protection Ins. 
 
 Co., 372. 
 Glenn «. Statler, 704. 
 
 V. Thistle, 1394. 
 
 V. Williams, 1354. 
 
 Click V. Crist, 1363. 
 
 Globe Mut. Life Ins. Co., People v., 607. 
 
 Gloucester Bank v. Salem Bank, 700. 
 
 Glover v. Dowagiac Univ. Parish, 1109. 
 
 Glyn«. Baker,'ll86. 
 
 Goddard's Case, 114. 
 
 Goddard ». Foster, 1407. 
 
 V. Renner, 1151. 
 
 Godden v. Pierson, 1239. 
 
 Goddin v. Shipley, 1390. 
 
 Godfrey i>. Turnbull, 1148. 
 
 Goebel w. Linn, 48. 
 
 Gokey w. Knapp, 1059. 
 
 Gold Medal Sew. Mach. v. Harris, 874. 
 
 Golden v. Prince, 567. 
 
 Goldrich v. Ryan, 244. 
 
 Goldsberry v. Gentry, 194. 
 
 Goldsmith v. Hand, 1445. 
 
 Goldthwaite v. McWhorter, 1139. 
 
 Golson V. Ebert, 1390. 
 
GOS 
 
 INDEX TO THE CASES CITED. 
 
 GEA 
 
 Goltra V. Sanasack, 704. 
 Goman v. Salisbury, 174, 815. 
 Gonzales v. Hukil, 277. 
 Gooch V. Holmes, 1315. 
 Good V. Cheesmau, 55. 
 
 V. Elliott, 530, 531. 
 
 Goodale ». Fennell, 571. 
 Goodall V. Thurman, 509. 
 Goodbar v. Dunn, S90. 
 Goode V. Harrison, 911, 943 
 
 V. Hawkins, 528. 
 
 V. Webb, 1343. 
 
 Goodenow v. Curtis, 757. 
 
 V. Tyler, 1139. 
 
 Goodhue V. McClarty, 1122. 
 Goodill V. Brigham, 388. 
 Goodman v. Eastman, 765. 
 
 V. Henderson, 516. 
 
 V. Wineland, 1211. 
 
 i;. Winter, 903. 
 
 Goodnow V. Bond, 1247. 
 
 V. Empire Lumber Co., 942. 
 
 ti. Smith, 53. 
 
 V. Strvker, 1354. 
 
 Goodpaster v. Porter, 78. 
 Goodricb v. Bodurtha, 877. 
 
 V. Brvant, 268. 
 
 V. Lafflin, 827. 
 
 V. Reynolds, 1009. 
 
 Goodright v. Gregory, 352. 
 Goodrum v. Smith, 1309. 
 Goodsell V. Myers, 925, 937, 943. 
 Goodspeed v. Fuller, 275, 1265. 
 Goodtitle v. Petto, 42, 124. 
 Goodwin v. Garr, 1030. 
 
 V. Gilbert, 193, 203. 
 
 V. Goodwin, 176. 
 
 V. Merrill, 835. 
 
 V. Bobarts, 1185. 
 
 V. Union Screw Co., 1020. 
 
 Goody i;. Penny, 205. 
 Gordon v. Bruner, 226. 
 
 V. Buchanan, 1089. 
 
 V. Bnlkeley, 1045. 
 
 V. Harper, 1 2. 
 
 V. Little, 449. 
 
 V. Potter, 234. 
 
 V. Preston, 1011. 
 
 V. Uimmington, 593. 
 
 , United States v., 443. 
 
 V. Wilson, 83. 
 
 Gore V. Gibson, 980. 
 
 V. McBrayer, 1292. 
 
 V. Mason, 73. 
 
 Gorgier v. Mieville, 1 1 86. 
 Gorham v. Keyes, 493. 
 
 V. Thompson, 1148. 
 
 V. Wing, 1343. 
 
 Gorman v. Carroll, 226. 
 Gosden v. Tucker, 950. 
 GosB V. Ellison, 874. 
 
 Goss V. Nugent, 852. 
 
 V. Whitney, 544. 
 
 Gossler «. Eagle Sugar Refinery, 244. 
 Gotham v. Gotham, 284. 
 Gott V. Dinsmore, 1406. 
 
 , State v., 75, 119, 121. 
 
 Goudy V. Gebhart, 122. 
 
 Gould V. Cayuga Bank (21 Hun, 293), 
 
 679. 
 
 V. Cayuga Bank (86 N. Y. 75), 680. 
 
 0. Day, 355. 
 
 V. Kendall, 504. 
 
 V. Mansfield, 1292. 
 
 V. Okedcn, 657, 688. . 
 
 Gove V. Colborn, 651. 
 
 V. Newton, 63. 
 
 Governeur v. Robertson, 999. 
 Goward v. Waters, 75. 
 Gowen v. Gerrish, 1452. 
 Gower v. Carter, 1450. 
 
 V. Stuart, 1259. 
 
 Grace v. Hale, 925, 938. 
 
 Grady v. American Cent. Ins. Co., 1067. 
 
 V. Robinson, 1151. 
 
 Graff V. Bloomer, 432. 
 Grafton c. Armitage, 1316. 
 Grafton Bank v. Woodward, 766. 
 Graham v. Castor, 964. 
 
 V. HoUoway, 832. 
 
 V. Hope, 1148. 
 
 V. O'Niel, 1260. 
 
 V. Pinckney, 903. 
 
 V. Wickham, 224. 
 
 Gram !•. Seton, 1151. 
 
 Grand Gulf Railroad and Banking Co. 
 
 V. Bryan, 390. 
 Grandin v. Hernandez, 394. 
 Grannis v. Clark, 255. 
 Grant v. Beard, 1223. 
 
 V. Dabney, 397. 
 
 V. Fletcher, 1245, 1248. 
 
 , State v., 989. 
 
 V. Thompson, 971. 
 
 V. Vaughan, 1184. 
 
 Grantham v. Hawley, 442. 
 Grasselli v. Lowden, 516, 517. 
 Gratz V. Catlin, 359. 
 Graul V. Strutzel, 245, 1063. 
 Graves v. Blondell, 296. 
 
 V. Graves, 1292. 
 
 V. Hickman, 942. 
 
 V. Key, 176. 
 
 V. Lebanon National Bank, 661. 
 
 V. Smedes, 107. 
 
 V. Ticknor, 64. 
 
 V. Tucker, 357. 
 
 V. White, 782. 
 
 Gray v. Bennett, 204. 
 
 V. Blanchard, 800. 
 
 V. Fowler, 683. 
 
 [ V. Garrison, 1182. 
 
 635 
 
OBE 
 
 INDEX TO THE CASES CITED, 
 
 GTJB 
 
 Gray v. Gray, 1238. 
 
 V. Hook, 498. 
 
 V. Jones, 676. 
 
 V. Mathias, 509. 
 
 , People u., 1179. 
 
 Graysons v. Richards, 821. 
 
 Great Berlin Steamboat Co., In re, 651. 
 
 Great Falls, &c. Co., United States v., 
 
 563. 
 Great Northern Railway v. Witham, 78. 
 Great Western Telegraph, In re, 674, 
 
 1009. 
 Greathouse v. Dunlap, 123, 127. 
 
 V. Kline, 864. 
 
 Greeley v. Stilson, 1299. 
 
 y. Thurston, 1439. 
 
 Green's Case, 414. 
 Green's Estate, 991. 
 Green, In re, 535. 
 
 V. Armstrong, 1294, 1296. 
 
 1). Biu-tlett, 1132. 
 
 V. Biddle, 555, 557, 567. 
 
 V. Brookins, 153. 
 
 D. Clark, 432. 
 
 w. Cresswell, 1265. 
 
 V. Green (7 Hun, 492), 921. 
 
 V. Green (69 N. Y. 553), 921, 940, 
 
 942. 
 
 i>. Hollingsworth, 627. 
 
 V. Humphreys, 1362. 
 
 V. Lake, 111. 
 
 !;. Miller, 1088, 1089. 
 
 V. Morris, &c. Railroad, 111. 
 
 V. Morrison, 1 220. 
 
 V. North Buffalo, 346. 
 
 V. North Carolina Railroad, 1294. 
 
 V. Perkins, 74. 
 
 V. Randall, 172. 
 
 V. Richardson, 1220. 
 
 V. Salmon, 237, 888. 
 
 V. Sarmiento, 1402. 
 
 V. Sperry, 901. 
 
 V. Thompson, 45. 
 
 V. Watkins, 859. 
 
 V. Wells, 135. 
 
 V. Wilding, 904, 917, 942. 
 
 V. Wood, 958. 
 
 Greenawalt v. Kohne, 170, 172. 
 Greenby v. Wilcocks, 1179. 
 Greene v. Bartholomew, 61. 
 
 V. Godfrey, 545. 
 
 V. Tyler, 449. 
 
 Greenfield Bank v. Crafts, 847. 
 Greenfield Savings Bank v. Simons, 740, 
 
 1121. 
 
 V. Stowell, 750. 
 
 Greenia v. Grecnia, 999. 
 Greenleaf v. Allen, 107. 
 Greenlee v. Gaines, 688. 
 Greenstine v. Borchard, 454. 
 Greenwald v. Kaster, 1399. 
 
 636 
 
 Greenwell v. Greenwell, 223. 
 Greenwood v. Curtis, 627, 1373, 1378, 
 
 1436. 
 
 V. Freight Co., 560. 
 
 Greer v. Caldwell, 707. 
 Gregg V. Wells, 284, 298. 
 Gregory v. Brunswick, 1202. 
 
 V. Cameron, 443. 
 
 V. Wendell (39 Mich. 337), 535. 
 
 V. Wendell (40 Mich. 432}, 534. 
 
 Grell y. Levy, 377, 1381. 
 Gricew. Kenrick, 1133. 
 Gridley v. Bane, 674. 
 
 V. Dorn, 531. 
 
 Grier v. Puterbaugh, 390. 
 Grierson v. Mason, 347. 
 Griffin v. Blandford, 446. 
 
 V. Chubb, 667. 
 
 V. City Bank, 1347. 
 
 V. Haynes, 1416. 
 
 V. Inman, 1022, 1390. 
 
 V. Lawrence, 300. 
 
 V. Marine Co., 881. 
 
 I). Richardson, 267. 
 
 V. Thomas, 870. 
 
 Griffith i;. Buffum, 1146. 
 
 V. Burden, 1187. 
 
 V. Goodhand, 1430. 
 
 V. Harrison, 404. 
 
 V. Short, 346, 656. 
 
 0. Spratley, 45. 
 
 Griffiths V. Robins, 958. 
 
 Griggs V. Morgan, 7 1 . 
 
 Grimes v, Simpson Centenary College, 
 
 169. 
 Grimm v. Warner, 520. 
 Grimmet v. Henderson, 426. 
 Grimwood v. Moss, 794. 
 Grinnell v. Buchanan, 1067. 
 Griswold v. Butler, 977. 
 
 V. Scott, 372, 713. 
 
 Groner v. Smith, HI. 
 Gross V. McKee, 650. 
 Grosvenor v. Magill, 1339. 
 Groton v. Waldoborough, 627. 
 Grout V. Townsend, 124. 
 Grove v. Brien, 353. 
 
 V. Hodges, 342, 660. 
 
 Groves v. Cook, 1274. 
 
 V. Nutt, 1373. 
 
 V. Perkins, 45, 711. 
 
 Grow V. Seligman, 520. 
 Grubbs v. Wiley, 1070. 
 Gruder !». Bowles, 1211. 
 Grugeon v. Gerrard, 352. 
 Grumley v. Webb, 176. 
 Grundy v. Edwards, 517. 
 Grymes v. Blofield, 211. 
 
 V. Sanders, 711, 829, 832. 
 
 Guenther v. Bewien, 473. 
 Guerand v. Bandelet, 516. 
 
HAL 
 
 INDEX TO THE CASES CITED. 
 
 HAM 
 
 Guernsey v. Cook, 524. 
 Guerreiro n. Peile, 1139. 
 Guggenheimer v. Brookfield, 1209. 
 Guild V. Butler, 53. 
 
 V. Eager, 431. 
 
 V. Leonard, 203. 
 
 Guilford v. March, 493. 
 
 Guilford Meth. Ep. Par. v. Clarke, 87. 
 
 Guilleanme v. Rowe, 721. 
 
 Gulick V. Ward, 503. 
 
 Gulledge v. Howard, 64. 
 
 GuUich V. Alford, 828. 
 
 Gully V. Exeter, 42, 124. 
 
 Gunby v. Sluter, 653. 
 
 Gunmakers ;;. Ecll, 126. 
 
 Gunn V. Barry, 556, 572. 
 
 V. Cantine, 1081. 
 
 V. McAden, 53. 
 
 Guuter v. Leckey, 489. 
 
 V. Williams, 1152. 
 
 Gupton V. Gupton, 1237. 
 Gumey v. Womersley, 699. 
 Gushee v. Eddy, 1433, 1436. 
 Guthrie v. Armstrong, 1088, 1039. 
 
 V. Morris, 916. 
 
 V. Thompson, 814, 81.5, 1241. 
 
 Guyette v. Bolton, 176. 
 Gwathuey v. Cason, 1245. 
 Gwinn v. Rooker, 1151. 
 
 Haas V. Fenlon, 498. 
 Haase v. Mitchell, 833. 
 Hack, United States v., 991. 
 Hackett). Tilly, 121. 
 Hackleman v. Miller, 1254. 
 Hackley v. Headley, 723. 
 Haddock v. Woods, 370, 377. 
 Hagaman v. Neitzel, 226. 
 Hager v. Catlin, 498. 
 Hagerty v. Engle, 1438. 
 Haggart v. Ranger, 1055. 
 Hagood V. Harley, 357. 
 Hahn v. Horstman, 1451, 1452. 
 Haigh V. Brooks, 72. 
 Haine v. Tarrant, 914. 
 Haines v. Haines, 45. 
 
 V. Lewis, 493, 496. 
 
 Hairston f. Jaudon, 1286. 
 Hale V. Brown, 958, 964. 
 
 V. Henderson, 471. 
 
 V. Lawrence, 1409. 
 
 V. Morse, 1363. 
 
 V. Rawson, 591. 
 
 y. Rice, 99. 
 
 V. Skinner, 303. 
 
 I'. Stuart, 1303. 
 
 V. Union Mut. Eire Ins. Co., 310. 
 
 Haley v. Young, 1438, 
 Haleyburton v. Kershaw, 999. 
 Halifax Union v. Wheelwright, 1169. 
 
 Hall V. Ashby, 850. 
 
 V. Benson, 450. 
 
 V. Bliss, 880. 
 
 V. Bradbury, 661. 
 
 V. Butterfield, 895, 911. 
 
 V. Callahan, 1203. 
 
 V. Cannon, 1444. 
 
 V. Cassidy, 1341. 
 
 V. Cockrell, 1077. 
 
 V. Costello, 627. 
 
 V. Gushing, 393, 443. 
 
 V. Delaplaine, 1347. 
 
 V. Denckla, 1351. 
 
 V. Eaton, 1202. 
 
 V. Eullerton, 679, 680. 
 
 V. Guilford, 687, 712. 
 
 V. Hall, 961. 
 
 V. Harris, 285. 
 
 V. Hollander, 899. 
 
 V. Huntoon, 1078. 
 
 V. Jones, 9'iO. 
 
 V. Kirby, 850. 
 
 V- McHenry, 756. 
 
 V. McLeod, 1292, 1298. 
 
 V. Mullin, 471. 
 
 V. Naylor, 667. 
 
 V. Palmer, 352, 509. 
 
 V. Parker, 544. 
 
 V. Perkins, 688. 
 
 V. Potter, 511. 
 
 V. Rochester, 869. 
 
 V. State, 208. 
 
 V. Steel, 457. 
 
 V. Stewart, 828. 
 
 V. Storrs, 1062. 
 
 V. Thayer, 1162. 
 
 V. Thompson, 665. 
 
 V. Warren, 959. 
 
 - — V. White, 299. 
 
 i'. Williams, 1087. 
 
 Hall Manuf. Co. u. American Ry. Sup. 
 
 Co., 286. 
 Hallett V. Collins, 45, 348. 
 Halley v. Troester, 971, 974. 
 Hallgarten v. Oldham, 1397. 
 Halloran v. Whitcomb, 1180. 
 Halloway v. Lacy, 400. 
 Hallowell v. Horter, 1208. 
 Hallows V. Eernie, 655. 
 Halton !>. Simmell, 858. 
 Ham V. Goodrich, 1237. 
 Hambel v. Tower, 1436. 
 Hambleton v. Central Ohio Railroad, 288, 
 
 296. 
 Hambly v. Trott, 186. 
 Hamet v. Letcher, 672, 677. 
 Hamilton u. Cummings, 830. 
 
 V. Foster, 408. 
 
 v. Pitcher, 416. 
 
 V. Scull, 527. 
 
 . V. Smith, 719. 
 
 637 . 
 
HAK 
 
 INDEX TO THE CASES CITED. 
 
 HAR 
 
 Hamilton v. Thrall, 389, 401. 
 
 V. Vought, 674. 
 
 V. Wood, 751. 
 
 V. Wright, 1127. 
 
 Hamilton Avenne, In re, 575. 
 Hamilton, &c. Hydraulic Co. v. Cincin- 
 nati, &c. Railroad, 1300. 
 Hamlin v. Sears, 803, 1 108. 
 
 V, Stevenson, 894. 
 
 Hamm v. San Francisco, 376, 412. 
 Hammersley v. De Biel, 224, 684. 
 Hammond v. Cadwallader, 1292. 
 
 V. Gilmore, 1433. 
 
 V, Hannin, 1223. 
 
 V. Smith, 1360. 
 
 Hampden v. Walsh, 530, 531. 
 Hampshire v. Franklin, 1226. 
 Hampton v. Erenzeller, 1343. 
 
 V. Moorhead, 1062. 
 
 Hanauer v. Doane, 472, 481, 506. 
 
 V. Gray, 487. 
 
 Hancock v. Bvrne, 1105. 
 
 v. Field, 850. 
 
 V. Podmore, 237. 
 
 V. Watson, 402. 
 
 Hands v. Slaney, 909. 
 Handy v. Brown, 920, 1182. 
 
 V. Insurance Co., 793. 
 
 Hanffi). Howard, 194. 
 Hanford v. McNair, 1045. 
 Hankins v. Baker, 1226. 
 
 , Rex v., 147. 
 
 Hanks v. McKee, 244, 664. 
 Hanna v. Andrews, 520. 
 
 V. Rayburn, 830. 
 
 Hannah v. Collins, 277. 
 
 V. Hawkins, 1362. 
 
 V. Wadsworth, 75. 
 
 Hannan r. Oxiey, 176. 
 Hannon v. State, 83. 
 Hansen v. Kirtley, 1344. 
 Hanson v. Buckner, 42. 
 Hantz, Commonwealth r., 908. 
 Hapgood V. Houghton, 237. 
 
 V. Shaw, 1418. 
 
 Harbert's Case, 991. 
 Harbert v. Dumont, 62. 
 Hardacre w. Stewart, 1117. 
 Hardee v. Hall, 1060. 
 
 V. Howard, 1450. 
 
 Hardeman v. Burge, 45. 
 
 V. Cowan, 1436. 
 
 ■ V. Ford, 1121. 
 
 Harden v. Webster, 1 09. 
 Harder v. Harder, 1237. 
 Hardigree v. Mitchum, 286, 665. 
 Hardin v. Joice, 298. 
 
 V. Major, 1339. 
 
 Harding v. Ambler, 274. 
 
 V. Commercial Loan Co., 169. 
 
 V. Randall, 661. 
 
 638 
 
 Hardmanw. Child, 1191, 1192. 
 Hardy b. Merriweather, 1009. 
 
 V. Winter, 1302. 
 
 Hare, Rex v., 990. 
 Hargrave v. Conroy, 1444. 
 Hargroves v. Cooke, 109. 
 Hariston v. Sale, 835. 
 Harker v. Anderson, 1218. 
 Harkins v. Edwards, 1078. 
 Harkness v. Fraser, 658. 
 Harkreader v. Clayton, 359. 
 Harlow v. Boswell, 431. 
 
 V. Curtis, 321. 
 
 Harman I'. Harman, 109. 
 
 V. Howe, 383. 
 
 V. Kingston, 1001. 
 
 V. Looker, 1358. 
 
 V. Oberdorler, 355. 
 
 V. Reeve, 1311, 1317, 1323. 
 
 Harmer v. Cornelius, 246, 1416. 
 Harmon v. Bird, 73. 
 
 V. Harmon, 1299. 
 
 V. Page, 1354. 
 
 Harmony v. Bingham, 590, 591, 632, 723. 
 
 Harms i'. Parsons, 517. 
 
 Harnden, Commonwealth v., 1134. 
 
 Harner v. Dipple, 933. 
 
 Harney v. Owen, 921. 
 
 Harold v. Weaver, 709. 
 
 Harper v. Claxton, 1445. 
 
 V. Fairley, 95. 
 
 V. Hampton, 130. 
 
 V. Rowe, 393. 
 
 V. State, 765. 
 
 Harrell v. De Normandie, 587. 
 
 V. Kelly, 1.358. 
 
 V. Miller, 1294. 
 
 Harrhy K. Wall, 1167. 
 Harriet Ann, The, 1351. 
 Harriman, The, 591. 
 Harriman v. Gray, 277. 
 
 1;. Harriman, 50. 
 
 V. Park, 203. 
 
 Harrington v. Fall River Iron Works, 
 600. 
 
 V. Keteltas, 1354. 
 
 V. Kloprogge, 392. 
 
 V. Victoria Graving Dock Co., 1121. 
 
 V. Wells, 1427. 
 
 Harris v. Blen, 1439. 
 
 V. Bradley, 816, 818. 
 
 V. Cannon, 937, 942. 
 
 V. Carmody, 727. 
 
 V. Currier, 223. 
 
 V. Fane (4 Jur. 508), 910. 
 
 V. Harris, 119. 
 
 V. Howard, 1 363. 
 
 V. Hull, 385. 
 
 V. Mnsgrove, 923. 
 
 V. Porter, 1274. 
 
 V. Rathbnn, 1417. 
 
HAS 
 
 INDEX TO THE CASES CITED. 
 
 HAT 
 
 Harris v. Roberts, 525. 
 
 V. Saunders (4 B. & C. 411), 141. 
 
 V. Saunders (2 Strob. Eq. 370), 352. 
 
 V. Separks, 838. 
 
 V. Simmerman, 1062. 
 
 V. Tyson, 664. 
 
 V. White, 535. 
 
 Harrisburg Bank v. Tyler, 1215. 
 Harrison v. Adcock, 937, 942. 
 
 K. Cage, 1271. 
 
 V. Close, 857. 
 
 V. Colton, 542. 
 
 V. Fane (1 Scott, N. R. 287), 910. 
 
 w. Hicks, 211. 
 
 V. Jackson, 1073, 1151. 
 
 V. Jameson, 707. 
 
 V. Sawtel, 1265. 
 
 V. Simons, 885. 
 
 V. Sterry, 991. 
 
 V. Town, 45. 
 
 Harrod v. Myers, 925. 
 Harrow v. Johnson, 1238. 
 'Harsh v. Klepper, 751. 
 Harshaw v. McKesson, 1045, 1047. 
 Hart V. Bray, 322. 
 
 V. Bullion, 293. 
 
 V. Deamer, 977. 
 
 V. Lamphire, 555, 563. 
 
 V. Lyon, 1191. 
 
 V. Prater, 909. 
 
 V. Rast, 351. 
 
 V. Swaine, 663. 
 
 V. United States (15 Ct. of CI. 414), 
 
 1000. 
 
 V. United States (95 U. S. 316), 378. 
 
 ». Wills, 1389. 
 
 V. Withers, 1151. 
 
 V. Wright, 244. 
 
 Hartford Bank v. Waterman, 1357. 
 Hartley's Appeal (7 Out. Pa. 23), 173. 
 Hartley's Appeal (3 Smith, Pa. 212), 
 
 1051. 
 Hartley v. Manton, 855. 
 
 V. Varner, 1260. 
 
 V. Wharton, 944. 
 
 Hartman v. Kendall, 942. 
 Hartness v. Thompson, 871, 936 
 Hartshorn v. Day, 121. 
 
 u. PotroflF, 286. 
 
 Hartsville University v. Hamilton, 665. 
 Hartung v. Witte, 302, 1191. 
 Hartwell v. Jewett, 835. 
 Hartzell v. Saunders, 76. 
 Harvey v. Gardner, 1230. 
 
 V, Harvey, 857. 
 
 V. Olney, 632, 725. 
 
 V. Varney, 1203. 
 
 V. Young, 666. 
 
 Harwood v. Jones, 1264, 1283. 
 
 V. Knapper, 59, 527, 1203. 
 
 Haskell v. Blair, 805. 
 
 Haskins v. Lombard, 348. 
 
 I). Warren, 449. 
 
 Haslack v. Mayers, 835. 
 Hass V. Plautz, 302. 
 Hassinger v. Newman, 1263. 
 
 V. Solms, 214. 
 
 Hastie v. Aiken, 1355. 
 Hastings v. Bangor House, 1109. 
 
 V. Blue Hill Turnpike, 856. 
 
 V. DoUarhide, 930. 
 
 V. Lovering, 1077. 
 
 , State v., 992, 993. 
 
 Hastings, &c. Railroad v. Miles, 348. 
 Hatch V. Barr, 1016. 
 
 V. Coddington, 1059. 
 
 V. Douglas, 377. 
 
 V. Hatch, 352,361. 
 
 V. Jordon, 1210. 
 
 V. Mann, 47. 
 
 V. Taylor, 1062. 
 
 Hatcher v. Andrews, 516. 
 
 V. Hall, 1351. 
 
 V. McMorine, 1385. 
 
 Hathaway v. Moran, 471. 
 
 V. Payne, 286, 359, 361. 
 
 V. Winneshiek, 217. 
 
 Hathorn v. Richmond, 1416, 1417. 
 Hatton V. Gray, 1 246. 
 
 V. Johnson, 828. 
 
 V. Jones, 352. 
 
 V. Landman, 194. 
 
 Hatzfield v. Gulden, 502. 
 Hauser v. Sain, 223. 
 Havemeyer v. Iowa, 569. 
 Haven w. Adams, 1018. 
 
 V. Brown, 375. 
 
 V. Grand Junction, &c. Co., 1187. 
 
 Havens v. Lathene, 595. 
 Havilaud v. Halstead, 580, 1429. 
 Hawes v. Armstrong, 254. 
 
 V. Miller, 504. 
 
 V. Smith, 404. 
 
 V. Stebbins, 31, 442. 
 
 V. Woolcock, 1 264. 
 
 Hawkes v. Pike, 113, 349. 
 
 V. Saunders, 44. 
 
 Hawkins ti. Ball, 603. 
 
 V. Bone, 980, 983. 
 
 V. Brown, 465. 
 
 V. Chace, 345. 
 
 V. Lange, 782, 1109. 
 
 y. Lee, 164, 172. 
 
 V. Methodist Episc. Ch., 284. 
 
 Hawley v. Bibb, 534. 
 
 V. Farrar, 768. 
 
 V. Moody, 1235, 1236. 
 
 Hay V. Green, 1179. 
 
 Hayden v. Middlesex Turnpike, 1094. 
 
 V. Souger, 331. 
 
 V. Weldon, 1259. 
 
 Haydock v. Stow, 1062. 
 
 639 
 
HE! 
 
 INDEX TO THE CASES CITED. 
 
 HEE 
 
 Haydon v. Williams, 1362. 
 Hayea v. Brubaker, 1018. 
 
 V. Davis, 355. 
 
 V. Kershow, 42. 
 
 V. Livingston, 309. 
 
 V. Wells, 751. 
 
 V. Willio, 601. 
 
 Haymond v. Camden, 1001. 
 
 Haymore v. Yadkin Commissioners, 
 
 1358. 
 Hayne v. Cummings, 107,418. 
 Haynes v. Carter, 1148. 
 
 V. Haynes, 345. 
 
 V. Kogillio, 75. 
 
 V. Seachrest, 1151. 
 
 I'. Slack, 925. 
 
 V. State, 208. 
 
 Hays V. Bonner, 664. 
 
 V. Lasater, 107. 
 
 V. McConnell, 223. 
 
 V. McFarlan, 495. 
 
 Hay ward v. Leonrtrd, 1444. 
 Haywood v. Cope, 45. 
 Hazard v. Day, 1249. 
 
 V. Griswold, 346. 
 
 V. Irwin, 121, 664, 690. 
 
 V. Loring, 177. 
 
 V. New England Marine Ins. Co., 
 
 313. 
 Hazelrigg v. Donaldson, 722. 
 Hazlettw. Gill, 1129. 
 Head v. Goodwin, 1323. 
 
 V. Providence Ins. Co., 1005, 1014. 
 
 Heald v. Warren, 1074. 
 Healey v. Scofield, 216. 
 Heard v. Bowers, 1428, 1430. 
 
 V. Pilley, 1049. 
 
 Hearne v. Tenant, 1347. 
 Hcatli V. Derry Bank, 296. 
 
 V. Gregory, 426. 
 
 V. Nutter, 1062. 
 
 V. Eandall, 1300. 
 
 V. Stevens, 921. 
 
 V. West (6 ]?ost. N. H. 191), 938. 
 
 V. West (8 Fost. N. H. 101), 921, 
 
 938, 939. 
 
 V. Williams, 165. 
 
 Ileathcote v. Crookshanks, 50. 
 Iledden v. Griffin, 651. 
 —^ V. Roberts, 453. 
 Hedderly v. Downs, 863. 
 Hedge's Appeal, 313. 
 Hedge v. Gibson, 1G7, 1433. 
 
 V. Lowe, 516. 
 
 Hedges v. Paquett, 1021, 1022. 
 Hedgley v. Holt, 914. 
 Hedman v. Anderson, 1210. 
 Heermans v. Ellsworth, 1180. 
 Heffron v. Flanigan, 349. 
 Ilcflin V. Milton, 1282. 
 Heif. Heller, 169. 
 
 640 
 
 Heichew v. Hamilton (3 Greene, Iowa, 
 
 596), 515. 
 V. Hamilton (4 Greene, Iowa, 317), 
 
 65. 
 Heinekey v. Earle, 812. 
 Heineman v. Newman, 527, 1203. 
 Heise v. Bumpass, 543. 
 Heiskell «. Powell, 1216. 
 Helena v. Turner, 286. 
 Hellams v. Abercrombie, 536, 538. 
 Heller v. Crawford, 178, 543. 
 Hellman v. McWhennie, 1127. 
 Helm V. Wilson, 1434. 
 Helmsley v. Loader, 284. 
 Helps V. Hereford, 277. 
 Helshaw v. Langley, 345. 
 Hemingway v. Stansell, 1094. 
 Hemming v. Trenery, 748. 
 Hemstreet v. Burdick, 1062. 
 Henderson v. Barbee, 1151. 
 
 c. Barnewall, 1067, 1245. 
 
 V. Cummings, 1225. 
 
 V. Ford, 1056. 
 
 u. Hicks, 832. 
 
 V. McGregor, 962. 
 
 V. Railroad, 1112. 
 
 Hendrick v. Lindsay, 1 220. 
 Hendrickson v. Hendriekson, 679. 
 Hendrix v. Boggs, 111. 
 Hendy v. Kier, 40. 
 
 V. Soule, 725. 
 
 Henfree v. Bromley, 753. 
 
 Hening v. United States Ins. Co., 154. 
 
 Henkel v. Welsh, 456. 
 
 Henley v. Brown, 1292. 
 
 Hennequin v. Naylor, 667. 
 
 Hennessey v. Hill, 59. 
 
 Henry v. Anderson, 352. 
 
 V. Gates, 1151. 
 
 i: Jackson, 1162. 
 
 V. Jones, 1341. 
 
 V. Ritenour, 981, 984. 
 
 V. Root, 941. 
 
 V. Smith, 710. 
 
 Hentz V. Jewell, 534. 
 
 V. Miller, 299. 
 
 Hen wood v Cheeseman, 1398. 
 
 Hepburn v. Dunlop, 999. 
 
 Hepler v. Mount Carmel Sav. Bank, 
 
 1174. 
 Herbert v. Hanrick, 1151. 
 
 V. Turball, 894. 
 
 Herman v. Haffenegger, 679. 
 
 Hern v. Dryden, 1182. 
 
 Hernandez v. Sun Mutual Ins. Co., 413. 
 
 Herriok v. Bean, 75. 
 
 V. Hopkins, 384, 406. 
 
 Ilerrin v. Butters, 1274. 
 Herring v. Hottendorf, 1061. 
 
 V. Skaggs (62 Ala. 180), 1063. 
 
 V. Skaggs (73 Ala. 446), 1063. 
 
HIL 
 
 INDEX TO THE CASES CITED. 
 
 HOG 
 
 Herrington v. McCoUum, 1028. 
 HeiTon V. Herron, 105. 
 
 V. Hughes, 521, 1202. 
 
 Herschfeld v. Dexel, 1390. 
 
 Hershy v. Clark, 442. 
 
 Hersom v. Henderson, 177. 
 
 Hert V. Oehler, 751. 
 
 Henzog V. Hertzog, 223. 
 
 Hervev v. Harvey, 752. 
 
 Herzogu. Sawyer, 130, 134, 1151. 
 
 Heseltine v. Siggers, 1315. 
 
 Hess V. Final, 1203. 
 
 Hesse v. Stevenson, 382, 406. 
 
 Hester v. Keith, 393. 
 
 Hewett V. Bronson, 238. 
 
 Hewins v. Cargill, 750. 
 
 Hever v. Alexander, 1395. 
 
 Heys V. Heseltine, 1032. 
 
 Heyward's Case, 949. 
 
 Heywood v. Heywood, 384, 406. 
 
 Hibbard v. Mills, 724. 
 
 Hibblewhite w. McMorine, 1167, 1168. 
 
 Hickock V. Hoyt, 834. 
 
 Hicks I). Aylsworth, 1347. 
 
 V. Burhans, 92. 
 
 Higgins, In re, 922. 
 
 V. McCabe, 1416. 
 
 V. Moore (6 Bosw. 344), 1062. 
 
 V. Moore (34 N. Y. 417), 1136. 
 
 V. Senior, 1077, 1079, 1082, 1084. 
 
 V. Wasgatt, 380, 397. 
 
 Higginson v. Simpson, 535. 
 
 V. Weld, 1452. 
 
 Higgs V. Smith, 683, 690. 
 Highland v. Rhoades, 322. 
 Highley v. Barron, 942. 
 Hifb V. Peyton, 169. 
 Hild V. Linne, 1347. 
 Hildebrand v. Fogle, 376. 
 Hildreth v. O'Brien, 177. 
 
 V. Pinkerton Academy, 61, 768. 
 
 Hill V. Anderson, 928, 940. 
 
 V. Blake, 769. 
 
 D. Boyland, 572. 
 
 V. Bash, 664. 
 
 V. Carley, 652. 
 
 V. Day, 962, 1055. 
 
 V. Doughty, 1258. 
 
 y. Fisher, 1347. 
 
 V. Freeman, 509. 
 
 V. Hooper, 1280. 
 
 V. Jamieson, 1276 
 
 V. Keyes, 936. 
 
 V. Kidd, 531. 
 
 V. Morse, 267, 270. 
 
 v Parker, 382. 
 
 V. Raymond, 1260. 
 
 V. Ressegieu, 1054. 
 
 V. Scales, 345, 1169. 
 
 V. School District, 1344. 
 
 V. Sherv^ood, 537. 
 
 41 
 
 Hill V. Smith (12 Rich. 698), 1283. 
 
 0. Smith (32 Vt. 433), 1434. 
 
 V. Townsend, 798. 
 
 V. Umberger, 1351. 
 
 Hillary v. Waller, 1351. 
 Hillebrant v. Brewer, 82. 
 Hilliardu. Allen, 1333. 
 Hills V. Carlton, 555, 566. 
 Hillsborough v. Londonderry, 205, 238. 
 Hilton V. Eckersley, 515. 
 
 V. Houghton, 544. 
 
 Hime v. Klasey, 828. 
 Hinchman v. Emans, 958, 964. 
 Hinckley v. Arey, 1037. 
 
 V. Southgate, 1280. 
 
 Hindert v. Schneider, 57. 
 
 Hinds V. Chamberlin, 493. 
 
 Hinesburgh v. Sumner, 492. 
 
 Hingham v. Sprague, 1302. 
 
 Hinsdill v. White, 226. 
 
 Hiiiton V. Citizens Mut. Ins. Co., 708. 
 
 V. Locke, 449. 
 
 V. Sparkes, ,1450. 
 
 Hirschfeld v. London, &c. Railway,, 665, 
 705. 
 
 V. Smith, 755, 1385, 1393. 
 
 Hirschman v. Budd, 755. 
 Hirshhorn v. Stewart, 795. 
 
 Hiscocks V. Hiscocks, 390. 
 Hitchcock V. Buchanan, 1018. 
 
 V. Coker, 517. 
 
 V. Giddings, 587. 
 
 Hitchins v. Pettingill (58 N. H. 3), 655. 
 
 V. Pettingill (58 N. H. 386), 687. 
 
 Hixon V. George, 1207. 
 
 Hoadley v. Stephens, 1395. 
 
 Hoag V. Hoag, 882. 
 
 Hobart v. Beers, 795. 
 
 Hobbs V. Parker, 664. 
 
 Hoboken v. Gear, 208. 
 
 Hochster v. De La Tour, 1428. 
 
 Hockenbury v. Meyers, 63. 
 
 Hocker u. Gentry, 70. 
 
 Hodgdon v. Colder, 74. 
 
 Hodge V. Combs, 1105. 
 
 Hodges V. Green, 1077. 
 
 V. Saunders, 1193. 
 
 V. Steward, 1184. 
 
 Hodgkinson, Ex parte, 112. 
 
 Hodgson V. Dexter, 994. 
 
 V. Jeffries, 1300. 
 
 Hodnett v. Tatum, 1110. 
 
 Hodsdon v. Wilkins, 485. 
 
 Hodson V. Ingram, 121. 
 
 , United States v., 111. 
 
 Hoe's Case, 855. 
 
 Hoey V. Jarman, 414. 
 
 Hoffman v. Noble, 672, 673. 
 
 V. Strohecker, 667, 673. 
 
 Hogan V. Brooklyn, 290, 299. 
 
 V. Welcker, 399. 
 
 641 
 
HOL 
 
 INDEX TO THE CASES CITED. 
 
 HOU 
 
 Hogans v. Carruth, 383. 
 
 Hogdon V. Green, 121. 
 
 Hogg V. Wilkins, 1292. 
 
 Hoit V. Underbill (9 N. H. 436), 943. 
 
 V. Underhill (10 N. H. 220), 937, 
 
 943. 
 Holbrook v. Armstrong, 1274. 
 
 V. Burt, 679. 
 
 V. Holbrook, 75. 
 
 V. Oberne, 1062. 
 
 V. Tirrell, 821. 
 
 Holcomb V. Weaver, 527. 
 Holden v. Bloxam, 1 146, 1 149. 
 
 V. Cosgrove, 768. 
 
 V. Dakin, 244. 
 
 V. Smallbrooke, 890. 
 
 Holden Steam Mill v. Westervelt, 187. 
 Holderbaugh v. Turpin, 1253. 
 Holding V. Elliott, 885. 
 Holeman v. Hobson, 431. 
 Holford V. Adams, 449. 
 
 V. Parker, 357, 359. 
 
 HoUaday v. Daily, 1062. 
 
 V. Kennard, 596. 
 
 Holland v. Anderson, 664, 686. 
 
 V. Barnes, 736. 
 
 V. Bouldin, 608. 
 
 V. Diekerson, 571. 
 
 V. Eyre, 323. 
 
 V. Long, 1148. , 
 
 V. Miller, 964. 
 
 V. San Francisco, 1014. 
 
 Hollen V. Davis, 316. 
 HoUiday v. Holliday, 1203. 
 Hollinsead v. Mactier, 1444. 
 Hollis V. Vandergrift, 751, 763. 
 Hollomon v. Hollomon, 1390. 
 HoUoway, Commonwealth v., 1403. 
 
 V. Griffith, 1428, 1429. 
 
 V. Hampton, 1280. 
 
 V. Headington, 120. 
 
 V. Talbot, 838. 
 
 V. Turner, 1354. 
 
 Holly V. Huggeford, 1140. 
 
 Holman v. Johnson, 292, 489, 1380. 
 
 Holme V. Hammond, 858. 
 
 Holmes's Appeal (27 Smith, Pa. 50), 651. 
 
 Holmes's Appeal (29 Smith, Pa. 279), 75. 
 
 Holmes v. Bell, 129. 
 
 V. Blogg (2 Moore, 552), 921. 
 
 w. Blogg (8 Taunt. 35), 943. 
 
 V. Blogg (8 Taunt. 508), 921. 
 
 V. Boyd, 49. 
 
 «. Crowell, 287, 293, 296. 
 
 w. Hall, 381. 
 
 V. Hill, 720. 
 
 V. Johnson, 449. 
 
 V. Knights, 1265. 
 
 0. Martin, 382, 406, 516. 
 
 V. Rice, 936. 
 
 V. Steele, 299. 
 
 642 
 
 Holt's Appeal, 360. 
 
 Holt V. Clarencieux, 616, 905. 
 
 V. Holt, 925. 
 
 V. Patterson, 555. 
 
 Holton V. McPike, 1421. 
 
 Home Ins. Co. v. Security Ins. Co., 793. 
 
 Homer v. Ashford, 515. 
 
 V. Thwing, 901. 
 
 Homes v. Smith, 1341. 
 Honck V. Mailer, 828. 
 Honeyman v. Jarvis, 57. 
 Honore v. Colmesnil, 440. 
 Hoobau V. Bidwell, 83. 
 Hood V. Adams, 1134. 
 Hooli V. Donaldson, 923. 
 
 V. Turner, 528. 
 
 Hooker v. De Palos, 535. 
 
 V. Hubbard, 284, 286. 
 
 V. Vandewater, 523. 
 
 Hooper v. Ramsbottom, 359. 
 
 V. Savannah, &c. Railroad, 1452. 
 
 V. Wells, 432. 
 
 Hoover v. Kilander, 295. 
 
 V. Kinsey Plough Co., 942. 
 
 Hope V. Harman, 352. 
 
 V. Hope, 1378. 
 
 Hopewell v. Amwell, 1 06. 
 Hopkins v. Blane, 1094. 
 
 V. Brlggs, 799. 
 
 V. Hawkeye Ins. Co., 645. 
 
 V. Hinkley, 70. 
 
 V. Mollinieux, 1035. 
 
 V. Sanford, 1420. 
 
 V. Snedaker, 651, 680. 
 
 V. Young, 1430. 
 
 Hopkirk v. Bell, 1138. 
 Hopper V. Eiland, 349. 
 
 V. Sisk, 661. 
 
 Hopson V. Boyd, 977. 
 Horacek v. Keebler, 536. 
 Hore V. Whitmore, 592. 
 Horm V. Shamblin, 1239. 
 Horn V. Gartman, 83. 
 
 V. Star Foundry, 691. 
 
 V. Western Land Assoc, 1059. 
 
 Hornbeck v. Westbrook, 426. 
 Horndon-on-the-Hill, Rex v., 1299. 
 Home V. Rouquette, 1389. 
 Horner v. Graves, 517. 
 Horsey v. Graham, 1249. 
 Horsfall v. Thomas, 653, 664. 
 Horst V. Wagner, 756. 
 Horton v. Buffinton, 489. 
 
 V. McCarty, 1038. 
 
 V. Sledge, 124. 
 
 Hoskins v. Swain, 1102. 
 Hoskinson v. Eliot, 11.52. 
 Hotchkiss V. Judd, 71. 
 Hotham v. East India Co., 427, 1424. 
 Houck V. Houck, 223, 1351. 
 Hough V. Hunt, 45. 
 
HOW 
 
 INDEX TO THE CASES CITED. 
 
 HUN 
 
 Hough V. Richardson, 688. 
 
 Houghtaling v. Ball, 1319. 
 
 V. Hills, 667. 
 
 V. Houghtaling, 1301. 
 
 V. Marvin, 1054. 
 
 Houghton V. Carpenter, 177. 
 
 V. Davenport, 1216. 
 
 V. Houghton, 1276. 
 
 V. Pattee, 1452. 
 
 V. Watertown Fire Ins. Co., 377. 
 
 Honghwout V. Boisaubin, 329. 
 
 House V. Kendall, 71. 
 
 V. McCormick, 277. 
 
 Houseman v. Sebring, 42. 
 
 Houser v. Reynolds, 942, 944. 
 
 Houston V. JefEerson College, 567. 
 
 ?;. Laffee, 1301. 
 
 Houston, &c. Railway v. Ham, 596. 
 
 0. Snelling, 1421. 
 
 Hovelman v. Kansas City Horse Rail- 
 road, 555, 567. 
 
 Hovey v. Brown, 1109. 
 
 V. Chase, 963. 
 
 V. Hobson (53 Maine, 451), 928, 
 
 970, 975, 976. 
 
 V. Hobson (55 Maine, 256), 963. 
 
 ». Pitcher, 1421. 
 
 HowB. Kemball, 1266. 
 
 Howard's Case, 894. 
 
 Howard v. Baillie, 1060. 
 
 V. Braithwaite, 1094. 
 
 V. Branner, 1 390. 
 
 V. Bugbee, 572. 
 
 V. Burgen, 1277. 
 
 V. Chicago, &c. Railroad, 381. 
 
 V. Coke, 961. 
 
 V. Coshow, 1264. 
 
 V. Daly, 838. 
 
 V. Easton, 1292. 
 
 V. Hoey, 244. 
 
 r. Holland Schools, 803. 
 
 V. Hunt, 832. 
 
 V. Pepper, 376. 
 
 V. Simpkins, 916. 
 
 Howard Fire Ins. Co. v. Braner, 413. 
 
 Howard Mut. &c. Assoc, v. Mclntyre, 
 268. 
 
 Howe V. Buffalo, &c. Railroad, 238. 
 
 V. Huntington, 1433. 
 
 V. Quid, 349, 350. 
 
 V. Taggart, 63. 
 
 Howe Machine Co. v. Rosine, 736. 
 
 Howell V. Bulkley, 1330. 
 
 V. Coupland, 592. 
 
 V. Delancey, 42, 124. 
 
 V. Knickerbocker Life Ins. Co., 608. 
 
 ti. Parsons, 426. 
 
 V. Young, 1357. 
 
 Howenstein v. Barnes, 1393. 
 
 Rowland v. Harris," 1309. 
 
 V. Leach, 401. 
 
 Hoxie V. Lincoln, 925, 937. 
 Hoy 0. Holt, 582. 
 
 V. Hoy, 1458. 
 
 Hoyt V. Casey, 909, 912. 
 
 V. Holly, 65. 
 
 Hubbard v. Briggs, 661, 685. 
 
 V. Cummings, 941. 
 
 V. Farrell, 96. 
 
 V. Hickman, 81. 
 
 HubbeU v. Flint, 547. 
 
 V. Meigs, 661. 
 
 Hubbert v. Borden, 1079. 
 
 Hubert v. Turner, 1235. 
 
 Huckins v. Second National Bank, 66. 
 
 Hudson V. Alexander, 124. 
 
 V. Critcher, 275. 
 
 u. Weir, 1309, 1315. 
 
 Hudson Canal v. Penn. Coal Co., 241. 
 
 Huebsch v. Scheel, 75, 121. 
 
 Hueske v. Broussard, 375. 
 
 Huey's Appeal, 1373, 1396. 
 
 Hney u. Huey, 361. 
 
 Huff K. Bournell, 911. 
 
 Huffman v. Hummer, 169. 
 
 V. Starks, 1302. 
 
 Hughes V. Edwards, 608. 
 
 V. Gallans, 902. 
 
 u. Palmer, 616, 620. 
 
 V. Parker, 399. 
 
 V. Prewitt, 1414. 
 
 V. Stanley, 176. 
 
 V. Watson, 942. 
 
 Hugill V. Kinney, 331. 
 Hulbert v. Atherton, 164. 
 Hulett V. Fairbanks, 650. 
 liuling V. Craig, 591. 
 Hull V. Cunningham, 707. 
 
 V. Fields, 652. 
 
 ;;. Jones (10 Lea, 100), 942. 
 
 V. Jones (69 Misso. 587), 1049. 
 
 V. Marshall, 994. 
 
 V. Sturdivant, 1454. 
 
 Hullet V. Spain, 998. 
 HuUhorst V. Scharner, 721 . 
 Hulse V. Young, 1133, 1134. 
 Human v. Cuniffe, 1152. 
 Humbird, State v., 111. 
 Humble v. Hunter, 1084. 
 
 i>. Mitchell, 1315. 
 
 Hume V. Mazelin, 49. 
 
 V. Peploe, 1344. 
 
 V. Taylor, 130. 
 
 Humfrey v. Dale, 1086. 
 Hummel v. Tyner, 346. 
 Humphrey v. Cole, 1409. 
 
 V. Worth, 1223. 
 
 Hund V. Geier, 57. 
 Hungerford v. Moore, 331. 
 Hungerford National Bank v. Van Nos- 
 
 trand, 304. 
 Hunt V. Adams, 755. 
 
 643 
 
HUT 
 
 INDEX TO THE CASES CITED. 
 
 IRV 
 
 Hunt V. Bate, 91. 
 
 V. Blanton, 662, 680. 
 
 V. Douglass, 1067. 
 
 V. Elliott, .'528. 
 
 V. Frost, 382, 528. 
 
 V. Gray, 753. 
 
 V. Hardwick, 680. 
 
 r. Hunt, 977. 
 
 V. Jones, 1387. 
 
 V. Lane, 216. 
 
 ". Livermore, 1433. 
 
 i: Mann, 1179. 
 
 V. Peake, 920, 925. 
 
 V. Rhodes, 705. 
 
 «. Rousmanier, 1051, 1054. 
 
 V. Silk, 818. 
 
 Hunter v. Agee, 486. 
 
 V, McLaughlin, 45. 
 
 V. Miller, 285, 380, 1071. 
 
 i: Walters, 646. 
 
 V. Watson, 858. 
 
 ". Westbrook, 923. 
 
 Huntingdon v. Hall, 243. 
 Huntington v. Finch, 755. 
 
 V. Havens, 406. 
 
 0. Knox, 1070, 1080. 
 
 Huntley v. Mathias, 1061. 
 
 Hunton v. Nichols, 1356. 
 
 Huntress v. Tiney, 1126. 
 
 Huoncker v. Merkey, 173. 
 
 Hurdi). Curtis, 1191. 
 
 Hurlburt v. Wheeler & Wilson Mannf. 
 
 Co., 1239. 
 Hurley v. Brown, 1242. 
 
 «. Osier, 673. 
 
 V. Taylor, 1210. 
 
 Hurlston's Case, 989. 
 Hursh V. North, 449. 
 Hurst V. Beaver, 173. 
 
 V. Hite, 219. 
 
 Husband v. Davis, 870. 
 
 V. Epling, 57. 
 
 Huscombe v. Standing, 728. 
 
 Hass V. Morris, 707. 
 
 Hussey w. Horne-Payne (4 Ap. Cas. 
 
 311), 319, 1248. 
 V. Horne-Payne (8 Ch. D. 670), 
 
 323. 
 
 V. Jewett, 936. 
 
 V. Roquemore, 537. 
 
 Huston V. Markley, 124. 
 Hutchen v. Gibson, 499. 
 Hutcheson v. McNutt, 803. 
 Hatchings v. Moore, 401. 
 
 , United States v., 998. 
 
 Hutchins v. Dixon, 412. 
 
 V. Hebbavd, 372, 1051. 
 
 V. Hutchins, 521. 
 
 V. King, 1294. 
 
 Hutchinson v. Brown, 981. 
 V. Hutchinson, 1277. 
 
 644 
 
 Hutchinson v. Morley, 651. 
 
 V. Tatham, 1086. 
 
 V. Watkins, 673. 
 
 Hutson V. Hntson, 720. 
 Button V. Bulloch, 1076. 
 
 V. Edgerton, 465. 
 
 V. Eyre, 213, 872. 
 
 Huyler v. Atwood, 383. 
 
 Hyatt V. Bank of Ky., 1391, 1392. 
 
 Hyde v. Baldwin, 856. 
 
 V. Llverse, 187. 
 
 Hydeville Co. v. Eaglo Railroad and 
 
 Slate Co., 136, 384. 
 Hyer v. Hyatt, 188, 904, 908, 929. 
 Hyman v. Cain, 234, 908. 
 Hymer v. Ijams, 1083. 
 Hyner v. Dickinson, 349, 949. 
 Hynson v. Noland, 1051. 
 Hypes V. Griffin, 1070, 1083, 1084. 
 
 Ide V. Fassett, 592. 
 
 lies V. Cox, 81, 121, 1211. 
 
 Illinois V. Delafield, 1186. 
 
 Illinois Central Railroad o. McClellan, 
 596. 
 
 Illinois Deaf and Dumb Inst. v. Piatt, 
 767. 
 
 Illyes, State v., 70. 
 
 Ilsley w. Jewett, 1363. 
 
 ImhoflF w. Witmer, 977. 
 
 Iralay v. EUefsen, 1405. 
 
 India Rubber Factory v. Hoit, 141. 
 
 Indiana v. Woram, 1008, 1012. 
 
 Indianapolis v. McAvoy, 695. 
 
 Indianapolis Chair Manuf. Co. v. Wil- 
 cox, 938. 
 
 Indianapolis, &c. Railroad v. Morgan- 
 stern, 1016, 1018. 
 
 V. Morris, 1108. 
 
 InjiersoU v. Campbell, 627. 
 
 V. Kendall, 83. 
 
 Ingraham v. Baldwin, 306, 975. 
 
 — — V. Geyer, 1402. 
 
 w. Leland, 1125. 
 
 V. McGraw, 1126. 
 
 Ingram v. Ingram, 528. 
 
 V. Jordan, 652. 
 
 Inraan v. Stamp, 1302. 
 
 Innes c. Dunlop, 1181. 
 
 Innocenta, The, 451. 
 
 Inslee v. Lane, 802. 
 
 Insurance Co. v. Morse, 496 
 
 International Bank v. Montfath, 228 
 
 Iiedell V. Barbee, 383. 
 
 Irion V. Hume, 608. 
 
 V. Mills, 309. 
 
 Irions v. Cook, 1092. 
 
 Irons V. Smallpiece, 82, 83. 
 
 Irvine v. Crockett, 9.36. 
 
 V. Irvine, 925, 927, 937, 944 
 
JAQ 
 
 INDEX TO THE CASES CITED. 
 
 JEW 
 
 Irvine v. McKeon, 275. 
 
 V. Watson, 1076. 
 
 Ii-ving V. Thomas, 689. 
 Irwin V. Nuckolls, 270. 
 
 V. Thompson, 177. 
 
 V. Williar, 534. 
 
 Isaacs V. Davles, 838. 
 
 V. Royal Ins. Co., 1342, 1343. 
 
 Isenhoot v. Chamberlain, 171. 
 
 Ish i>. Crane, 1100. 
 
 Ishmael v. Parker, 1433. 
 
 Isle Eoyale Min. Co. v. Hertin, 701. 
 
 Ive V. Chester, 909. 
 
 Ives V. Bosley, 59. 
 
 V. Carter, 685. 
 
 V. Jones, 483. 
 
 D.Williams, 169. 
 
 Ivey V. Lalland, 1386. 
 Ivinson v. Althrop, 1-152. 
 Izard V. Middleton, 1274. 
 Izon V. Gorton, 598. 
 
 Jack W.Davis, 1180. 
 
 V. Dougherty, 75. 
 
 Jackson v. Baker, 1452. 
 
 V. Colegrave, 532. 
 
 V. Covert, 1313, 1316. 
 
 V. Duchaire, 527. 
 
 V. Hanna, 1398. 
 
 1;. Hodges, 385. 
 
 V. Jackson, 683, 689. 
 
 V. Lemle, 346. 
 
 B. Mayo, 944. 
 
 V. Miner, 509. 
 
 Jacob V. Hart, 763. 
 
 V. Smith, 1239. 
 
 Jacobs V. Credit Lyonnais, 1387. 
 
 V. Miniconi, 1053. 
 
 V. Richards, 977. 
 
 V. Stokes, 627. 
 
 V. Warfield, 1059. 
 
 Jakeway v. Barrett, 412. 
 James v. Bixby, 219. 
 
 ?). Bydder, 120. 
 
 K. Drake, 1292. 
 
 V. Fulcrod, 79, 194, 528. 
 
 V, Landon, 268. 
 
 V. Langdon, 958, 964. 
 
 V. Le Roy, 227. 
 
 V. O'Driscoll, 220. 
 
 V. Roberts, 719. 
 
 Jamison v. Craven, 350. 
 
 V. Glascock, 740. 
 
 V. Moon, 226. 
 
 V. Smith, 942, 
 
 Janes v. Whithread, 343. 
 Janncy v. Boyd, 451, 1062. 
 Jansen v. McCahill, 345. 
 Janvrin v. Exeter, 331. 
 Jaques v. Golightly, 628. 
 
 Jaques V. Todd, 1098. 
 
 V. Withy, 479. 
 
 Jared v. Vanvleet, 220. 
 Jarrett v. Morton, 818. 
 Jarvis, Rex v., 12. 
 
 V. Rogers, 1140. 
 
 V. Sutton, 70, 614. 
 
 , United States v., 1050. 
 
 Jasper v. Tavis, 63. 
 
 Jefferson Branch Bank v. Skelly, 559. 
 
 Jeffery v. Underwood, 112. 
 
 Jefferys v. Jefferys, 120. 
 
 Jefford V. Ringgold, 936, 937. 
 
 Jeffrey v. Bigelow, 1112. 
 
 Jeffries v. Lamb, 71. 
 
 Jefts V. York (4 Cush. 371), 1120. 
 
 V. York (10 Cush. 392), 1119. 
 
 Jelks V. Barrett, 349, 350, 352, 1245. 
 Jell V. Douglas, 863. 
 Jemison v. McDaniel, 590, 592. 
 Jeneson v. Jeneson, 958, 964. 
 Jenkins v. Frink, 528. 
 
 V. German Luth. Cong., 705. 
 
 V. Harrison, 382. 
 
 V. Jenkins, 925. 
 
 V. Lockard, 443. 
 
 V. Lykes, 396. 
 
 V. Motlow, 64. 
 
 V. Rosenberg, 270. 
 
 V. Temples, 516. 
 
 V. Thompson, 818. 
 
 V. Tucker, 237. 
 
 V. Williams, 78. 
 
 Jenners v. Howard, 959, 962. 
 
 Jenness v. Wendell, 1318. 
 
 Jenney v. Alden, 898. 
 
 Jennings v. Brown, 44, 93. 
 
 V. Gage, 673, 833. 
 
 V. Eundall, 901. 
 
 , State v., 1070. 
 
 V. Throgmorton, 506. 
 
 V. Webster, 1264. 
 
 Jerome v. Bigelow, 524. 
 
 Jersey City v. State, 296. 
 
 Jervis v. Berridge, 1237. 
 
 Jessel V. Williamsburgh Ins. Co., 1181. 
 
 Jessop V. King, 1347. 
 
 Jessup V. Steurer, 1079. 
 
 Jestons V. Brooke, 478. 
 
 Jesup V. City Bank, 1095. 
 
 Jeter v. Tucker, 689. 
 
 Jewell V. Harding, 394. 
 
 V. Reddington, 816. 
 
 V. Rock River Paper Co., 1174. 
 
 V. Wright, 1379. 
 
 Jewett V. Alton, 1088. 
 
 V. Brooks, 1428. 
 
 V. Brown, 1420. 
 
 V. Carter, 1112. 
 
 I... Miller, 740. 
 
 V. Smith, 1198. 
 
 645 
 
JON 
 
 INDEX TO THE CASES CITED. 
 
 JON 
 
 Jewry v. Bask, 404. 
 
 Jilson V. Gilbert, 1279, 1283, 1284. 
 
 Joannes v. Bennett, 757. 
 
 Joest V. Williams, 986. 
 
 John V. Hatfield, 751. 
 
 Johns V. Bailey, 543. 
 
 w. Battin, 1151. 
 
 V. E'ritchey, 980. 
 
 V. Lantz, 95. 
 
 Johnson v. Baird, 1436. 
 
 V. Barber, 1112, 1U7. 
 
 V. Bernheim, 1109. 
 
 V. Boyles, 75. 
 
 V. Brook, 349, 352. 
 
 V. Byler, 296. 
 
 V. Chadwell, 958. 
 
 , Commonwealth v., 493. 
 
 V. Farley, 352, 353. 
 
 y. Houghton, 394. 
 
 V. Hulings, 547. 
 
 y. Johnson (5 Ala. 90), 740. 
 
 M. Johnson (10 Ind. 387), 964. 
 
 V. Lines, 912. 
 
 V Martin, 22. 
 
 0. Osenton, 1067 
 
 , People v., 1126. 
 
 V. Pie, 902. 
 
 V. Pryor, 688. 
 
 V. Randall, 147. 
 
 V. Reed (3 Eng. 202), 190. 
 
 V. Reed (9 Mass. 78), 401. 
 
 V. Reynolds, 64. 
 
 V. Rockwell, 925. 
 
 V. Royal Mail Steam Packet, 211. 
 
 V. Silsbee, 1208. 
 
 V. Skillman, 1300. 
 
 V. Smith, 1089. 
 
 V, Stevens, 82. 
 
 V. Talley, 322. 
 
 ». Thompson, 268. 
 
 V. United States, 310. 
 
 w. "Walker, 818. 
 
 V. Walter, 169. 
 
 V. Willis, 546. 
 
 ». Winslow, 572. 
 
 Johnston v. Bernheim, 1145. 
 
 V. Bingham, 1088. 
 
 V. Browne, 176. 
 
 V. Cope, 244. 
 
 I'. Crawley, 1016. 
 
 V. Decker, 1001. 
 
 V. Button, 1145. 
 
 V. Louisville, 1013. 
 
 V. McConnell, 472. 
 
 V. Salisbury, 135. 
 
 Johnstone o. Milling, 817. 
 Johr, People v., 348, 443. 
 Joliet V. Tuohey, 47, 208. 
 Joliffe V. Baker, 661, 662, 701. 
 Jones's Case, 487. 
 Jones V. Ashburnham, 1252. 
 
 646 
 
 Jones V. Atkinson, 1109. 
 
 V. Austin, 645. 
 
 V. Baird, 186. 
 
 V. Binford, 76, 1452. 
 
 V. Booth, 679. 
 
 V. Bullitt, 54. 
 
 — - V. Carter (4 Hen. & Mimf. 184), 
 1071. 
 
 V. Carter (8 Q. B. 134), 1179. 
 
 V. Caswell, 528. 
 
 V. Commercial Bank, 1056. 
 
 V. Cooper, 1260. 
 
 V. Edwards, 651. 
 
 V. Emery, 641, 679. 
 
 «. Fales, 1184. 
 
 V. Flint, 1296, 1297. 
 
 V. Grand Trunk Railway, 1355. 
 
 V. Gurlie, 345. 
 
 V. Hathaway, 71. 
 
 V. Heavens, 516. 
 
 V. Hill, 683. 
 
 V. Hoar, 1 86. 
 
 V. Hoey, 378, 450, 
 
 V. Jones (18 Ala. 248), 1409. 
 
 V. Jones (6 Conn. HI), 120. 
 
 - I'. Jones (12 Ind. 389), 75. 
 
 - V. Jones (91 Ind. 378), 1354. 
 
 V. Jones (46 Iowa, 466), 942. 
 
 V. Jones (2 Swan, Tenn. 605), 838. 
 
 V. Just, 244. 
 
 V. Kemp, 787. 
 
 V. Kokomo Building Assoc, 304. 
 
 V. Loggins, 818. 
 
 V. Munroe, 705. 
 
 V, Murray, 244. 
 
 V. Neale, 816. 
 
 V New York, 1180. 
 
 V. Perkins (5 B. Monr. 222), 959, 
 
 964. 
 
 V. Perkins (29 Missis. 139), 54. 
 
 V. Planters Bank, 1340. 
 
 V. Ponch, 1280. 
 
 v. Randall (Cowp. 37), 462, 473, 
 
 490, 505. 
 
 V. Randall (Lofft, 383), 14. 
 
 V. Read, 1035. 
 
 - V. Rimmer, 655. 
 
 - V. Rittenhouse, 57. 
 
 - V. Ryde, 699. 
 
 V. Sharp, 709. 
 
 V. Shorter, 1265. 
 
 V. Swayze, 351, 352. 
 
 - V. Thomas, 740. 
 
 - V. Thnrloe, 445. 
 
 V. Trinity Parish Vestry, 798. 
 
 V. United States (11 Ct. of CI. 733), 
 
 1347. 
 
 — V. United States (96 U. S. 24), 1420, 
 
 V. Walker (13 B, Monr, 163), 1431, 
 
 V. Walker (2 Paine, 688), 573. 
 
 V. Westervelt, 1202. 
 
KEE 
 
 INDEX TO THE CASES CITED. 
 
 KEN 
 
 Jones V. Williams, 274. 
 
 V. Wilson, 211. 
 
 V. Woods, 217, 219. 
 
 V. Yates, 292. 
 
 Jorda 0. Lewis, 1309. 
 
 Jordan v. Davis, 351. 
 
 i;. James, 1140. 
 
 V. Kent, 530. 
 
 V. McClare, 399. 
 
 V. Meredith, 449. 
 
 V. Miller, 1274. 
 
 V. Neilson, 1 1 74. 
 
 V. Norton, 313. 
 
 u. Pollock, 357, 821. 
 
 V. Rhodes, 795. 
 
 Josey V. Wilmington, &c. Railroad, 1016. 
 
 .Joslin U.Miller, 1110, 1393. 
 
 Joslyn w. Pariin, 1182. 
 
 Jourdain v. Wilson, 1191. 
 
 Journe, Succession of, 65. 
 
 Jowers ;;. Blandy, 1030. 
 
 Joj'ce 0. Joyce, 903. 
 
 V. Kennard, 432. 
 
 Jachter v. Boehm, 74. 
 
 Judd V. Day, 327. 
 
 V. Evans, 1460. 
 
 Judges, Report of, 1338, 1352, 1458. 
 
 Judkins u. Walker, 925, 937. 
 
 Juilliard v. Chaffee, 170, 174. 
 
 Junction Railroad v. Ashland Bank, 
 1388. 
 
 June V. Pnrcell, 1 1 . 
 
 Junk V. Canon, 311. 
 
 Junkins v. Simpson, 660. 
 
 V. Union School District, 211. 
 
 Justh V. National Bank of Common- 
 wealth, 673. 
 
 Justice v. Lang, 1246, 1249. 
 
 V. Tallman, 1264. 
 
 Kamphonse v. Gaffner, 1300. 
 Kanaga v. Taylor, 1379. 
 Kane v. Gott, 1329. 
 
 V. Hood, 1433. 
 
 Kansas v. Hannibal, &c. Railroad, 1018. 
 Kaufman v. Broughton, 1363. 
 
 V. Hamm, 538. 
 
 Kean v. McKinsey, 1266. 
 Keane v. Boycott, 917. 
 
 V. Smallbone, 751. 
 
 Kearney v. Taylor, 528. 
 
 V. Vaughan, 610, 614, 616. 
 
 Kearsingw. Kilian, 821. 
 
 Keatt). Allen, 511 
 
 Keating v. Price (1 Johns. Cas. 22), 766. 
 
 - — V. Price (58 Md. 532), 711. 
 
 Keaton v. Davis, 234. 
 
 Keeble v. Cummins, 958 964. 
 
 V. Hickeringill, 14. 
 
 Kecgan v Geraghty, 1395. 
 
 Keegan v. Malone, 223. 
 
 Keeler v. Salisbury, 53. 
 
 Keeley v. Boston, &c. Railroad, 381. 
 
 Keen v. Monroe, 1170. 
 
 Keener v. Crago, 348. 
 
 V. Harrod, 1120, 
 
 Keep V. Goodrich, 79. 
 
 Keffer v. Grayson, 48, 120. 
 
 Keighler v. Savage Manuf. Co., 1040. 
 
 Keir v. Leeman, 493, 495. 
 
 Keirsted v. Avery, 359, 360. 
 
 Keiser v. State, 210. 
 
 Keith V. Bliss, 1416. 
 
 Kellara v. McKinstry, 418. 
 
 Keller v. Equitable Fire Ins. Co., 657. 
 
 V. Kunkel, 1216. 
 
 Kelley v. Caplice, 738. 
 
 I). Davis, 234. 
 
 V. McKinney, 372, 707. 
 
 V. Munson, 1087. 
 
 V. Noyes, 720. 
 
 V. Riley, 580. 
 
 V. Upton, 383. 
 
 Kellogg V. Aherin, 1210. 
 
 V. Curtis, 346. 
 
 V. Krauser, 1180. 
 
 V. Larkin, 516. 
 
 V. Olmsted, 62. 
 
 V. Richards, 53. 
 
 V. Steiner, 647. 
 
 V. Turpie, 679. 
 
 V. United States, 286. 
 
 Kellogg Bridge v. Hamilton, 1182. 
 Kelly V. Bliss, 813. 
 
 V. Calhoun, 1018. 
 
 V. Davis, 1394. 
 
 V. Devlin, 523. 
 
 V. Hendricks, 281, 309. 
 
 V. Roberts, 169. 
 
 V. Solari, 704. 
 
 V. Terrell, 1280. 
 
 V. Trov Fire Ins. Co., 1111, 1113. 
 
 V. Tru'mble, 751. 
 
 Kelner v. Baxter, 848. 
 Kelsev v. Hibbs, 1265. 
 
 'v. Hobby, 720,721. 
 
 V. United States, 818. 
 
 Kelton V. Leonard, 1100. 
 Kemeys v. Proctor, 1038, 1049. 
 Kemp V. Bird, 520. 
 
 V. Falk, 802. 
 
 V. Humphreys, 1347. 
 
 V. Walker, 356. 
 
 Kenan v. Du Bignon, 270. 
 
 V. HoUoway, 93. 
 
 Kendal v. Marshall, 802. 
 
 V. Talbot, 1437. 
 
 Kendall v. Hamilton, 1146. 
 
 V. Hughes, 1309. 
 
 V. Kendall, 758. 
 
 V. Kingsley, 1343. 
 
 647 
 
KIM 
 
 INDEX TO THE CASES CITED. 
 
 KIT 
 
 Kendall v. Lawrence, 925, 936. 
 
 V. May, 969. 
 
 Konnard v. Cass, 1187. 
 
 V. Whitson, 224. 
 
 Kennedy v. Cochrane, 1383. 
 
 V. Doyle, 941. 
 
 V. Goodman, 75. 
 
 V. Kennedy, 658. 
 
 V. Knight, 1388. 
 
 V. McKay, 1112. 
 
 V. Moore, 751. 
 
 71. Parke, 1112, 1113. 
 
 V. Richardson, 397. 
 
 Kennerty v. Etiwan Phos. Co., 270. 
 
 Kenney v. Altvater, 1148. 
 
 Kent V. Freehold Land, &c. Co., 666. 
 
 V. Kent, 567. 
 
 «. Reynolds, 813. 
 
 V. Welch, 248. 
 
 Kent Railroad u. Wilson, 665, 1354. 
 
 Kenworthy v. Schofield, 1314. 
 
 V. Stevens, 1421. 
 
 Kenyon v. Worsley, 96. 
 
 Keough V. McNitt, 572. 
 
 Kercheval v. Swope, 1347. 
 
 0. Triplett, 268. 
 
 Kerchner v. Gettys, 73. 
 Kern v. Thurber, 673. 
 Kernion v. Hills, 47. 
 Kerr w. Bell, 921. 
 
 0. Birnie, 472, 627. 
 
 V. Lucas, 72. 
 
 Kerrigan v. Rautigan, 81. 
 Kershaw v. Cox, 752. 
 
 V. Whitalier, 1266. 
 
 Kerwin, Ex parte, 775, 1168. 
 Kessler v. Sonneborn, 1262. 
 Ketclium v. Buffalo, 1009. 
 
 V. Catlin, 587. 
 
 V. Evertson, 105, 835. 
 
 V. Verdell, 1226. 
 
 u. Zeilsdorff, 1431. 
 
 Kettle V. Harvey, 401. 
 Keys V. Harwood, 826. 
 
 V. Test, 293. 
 
 Keyser v. School District, 1292. 
 Kibble, Ex parte, 944. 
 Kidder v. Hunt, 834, 1235. 
 
 V. Kidder, 134, 822, 851. 
 
 Kidwelly v. Brand, 1437. 
 Kilcrease v. Shelby, 918. 
 Kilgour V. Miles, 1438. 
 Killey v. Wilson, 821. 
 Killian v. Ashley, 1266. 
 
 V. Harshaw, 404. 
 
 , State v., 890. 
 
 Killmore v. Howlett, 1294. 
 Killough V. Steele, 42. 
 Kimball v. Bryan, 169. 
 
 V. Cunningham, 834. 
 
 V. Hutchins, 1205. 
 
 648 
 
 Kimball v. Lincoln, 836. 
 
 V. Whitney, 104. 
 
 Kimble v. Christie, 649. 
 
 V. Cummins, 214. 
 
 Kimborough v. Davis, 1269. 
 Kimbrough v. Lane, 487, 492. 
 Kime v. Brooks, 1045. 
 Kimm v. Osgood, 1343. 
 Kinard v. Hiers, 668. 
 Kincaid v. Hocker, 216. 
 Kincannon v. Carroll, 383. 
 King V. Doolittle, 1385. 
 
 V. Edmiston, 1262. 
 
 V. Fleming, 544. 
 
 V. Handy, 1078. 
 
 V. Hoare, 1146. 
 
 V. Hunt, 765. 
 
 V. Jarman, 1319. 
 
 V. Kersey, 1429. 
 
 V. Phillips, 667. 
 
 V. Steiren, 838. 
 
 , Territory v., 47. 
 
 , United States v., 991. 
 
 «. Upton, 1266. 
 
 V. Warrington, 1 73. 
 
 V. Welcome, 1236, 1283. 
 
 V. Winants, 488. 
 
 Kingman v. Pierce, 1087. 
 Kingsbury v. Buchanan, 1126. 
 
 V. Butler, 1437. 
 
 V. Kirwan, 534. 
 
 Kingsland v. Roberts, 1351. 
 Kingsley v. Fitta, 1100. 
 
 V. Holbrook, 1294. 
 
 Kingsmill v. Bull, 446. 
 Kinne ». Kinne, 961. 
 Kinnebrew v. Kinnebrew, 127. 
 Kinney v. McDermot, 545. 
 Kinsey v. Wallace, 62. 
 Kinsman v. Loomis, 277. 
 
 V. Parkhurst, 517. 
 
 Kintsiing v. McElrath, 664. 
 Kinzie v. Chicago, 1016. 
 
 1). Penrose, 75. 
 
 Kirby v. Harrison, 1.347. 
 
 V. Johnson, 1321. 
 
 V. Mills, 1031, 1360. 
 
 Kirk V. Blurton, 1149. 
 
 w. Hamilton, 793. 
 
 V. Hartman, 288. 
 
 Kirkham v. Boston, 75. 
 
 Kirkman v. Bank of America, 354. 
 
 Kirkpatrick v. Adams, 534. 
 
 V. Brown, 290. 
 
 V. Stingley, 877. 
 
 V. Taylor, 42, 124. 
 
 Kirksey i;. Kirksey, 1239. 
 Kistler v. Hereth, 1356. 
 Kitchell V. Madison, 208. 
 Kitchen v. Lee, 940. 
 V. Rayburn, 688. 
 
KUH 
 
 INDEX TO THE CASES CITED. 
 
 LAN 
 
 Kittle i>. De Lamater, 535. 
 Kittrell v. Hawkins, 1422. 
 Kivett V. McKeithan, 1299. 
 Klauber v, American Express, 432. 
 Kleinpeter v. Harrigan, 390. 
 Klinck V. Price, 1378. 
 Kline v. Beebe, 942. 
 
 B. Raymond, 751. 
 
 Kling V. Sejour, 1395. 
 Klopenstein v. Mulcahy, 667. 
 Knapp V. Hyde, 719, 720. 
 
 V. Mills, 62. 
 
 Kniek v. Knick, 372. 
 Knight V. Barber, 1315. 
 
 V. Bean, 600. 
 
 r. Crockford, 344. 
 
 V. Houghtalling, 680. 
 
 «. Mann, 1319. 
 
 V. New England Worsted Co., 372. 
 
 V. Smythe, 306. 
 
 Knill V. Williams, 751, 752. 
 Knisely i'. Sampson, 178. 
 
 V. Shenberger, 383. 
 
 Knobb V. Lindsay, 45. 
 
 Knotts V. Steanns, 923. 
 
 Knowles v. Dow, 444. 
 
 Kuowlman v. Bluett, 1235, 1274, 1277. 
 
 Knowlton v. Amy, 688. 
 
 Knox V. Artman, 449. 
 
 V. Haralson, 1294. 
 
 Knox County Sav. Bank v. Cottey, 864. 
 Knoxville Bank v. Clark, 1175. 
 Kock V. Emmerling, 1136. 
 Koehler v. Black Kiver Falls Iron Co., 
 
 1016. 
 Kohl V. United States, 573. 
 Kohler v. Montgomery, 1338. 
 
 V. Wells, 725. 
 
 Kohn v. Tho Renaisance, 1386. 
 Komorowski v. Krumdick, 1064. 
 Koontz V. Franklin, 208. 
 Kostenbador v. Peters, 709. 
 Kountz V. Holthouse, 1220. 
 
 V. Price,-542. 
 
 Kraker v. Byrum, 912. 
 Kramer v. Arthurs, 440. 
 
 V. Carter, 1354. 
 
 Kraus v. Thompson, 680. 
 
 Kribben v. Haycraft, 502. 
 
 Krieteu. Myer, 1322. 
 
 Kroeger v. Pitcairn, 1 1 20. 
 
 Krom V. Levy, 1445. 
 
 Krouskop V. Shontz, 316, 390. 
 
 Krueger, In re, 1148. 
 
 Krugor v. Wilcocks, 1140. 
 
 Krumm v. Jefferson Fire Ins. Co., 1067. 
 
 Krutz V. Craig, 1 76. 
 
 V. Stewart, 1259. 
 
 Kuchenbeiser v. Beckert, 903. 
 Kuhl V. Jersey City, 284. 
 Kuhns V. Gates, 542, 823, 829. 
 
 KuU V. Farmer, 96. 
 Kumler v. Ferguson, 75. 
 Kupfer V. South Parish, 1088. 
 Kutzmeyer v. Ennis, 1264. 
 Kymer v. Suwercropp, 1087. 
 
 Labouchere v. Dawson, 65, 520. 
 Lacaussade v. White, 489. 
 Lackey v. Stouder, 243. 
 Lackman v. Wood, 903. 
 Lacy V. Dubuque Lumber Co., 1082. 
 
 V. Green, 372, 456. 
 
 V. K innaston, 855, 869. 
 
 V. Wilson, 284. 
 
 Ladd I'. Kenney, 97. 
 
 V. Noyes, 1191. 
 
 V. Rogers, 542. 
 
 Ladue v. Seymour, 1444. 
 Lafferty v. Jelley, 823, 1074. 
 Lagrave v Fowler, 795. 
 Laidla v. Loveless, 645. 
 Laidlaw v. Organ, 664. 
 Laidley v. Bright, 104. 
 Laidlou v. Hatch, 1259. 
 Laing v. McCall, 493. 
 Lainson v. Tremere, 274. 
 Laird v. Campbell, 348. 
 
 V. Hodges, 1403. 
 
 — — V. Ivens, 1148. 
 Lake v. Lewis, 798. 
 
 V. Morris, 1309. 
 
 V. Munford, 1159. 
 
 V. Security Loan Assoc, 665. 
 
 Lake Shore, &c. Railway v. Bennett, 593. 
 Lakeman v. Mountstephen, 1258. 
 
 V. Pollard, 604. 
 
 Lakey v. Chadwick, 1436. 
 
 Lamb v. Camden, &c. R. & T. Co., 411. 
 
 V. Crafts, 1316. 
 
 Lambden v. Sharp, 1151. 
 Lambe v. Reaston, 386. 
 Lambert v. Atkins, 949. 
 
 V. Taylor, 1183. 
 
 Lambton, Ilex v., 349. 
 
 Lamont v. Nashville, &c. Railroad, 596. 
 
 Lamore v. Frisbie, 543, 546. 
 
 Lamotbe v. St. Louis Marine Railway 
 
 and Dock Co., 1105. 
 Lampleigh y. Brathwait, 91. 
 Lamplugh v. Cox, 737. 
 Lampon v. Corke, 266. 
 Lamprey v. Lamprey, 50. 
 Lampton v. Taylor, 483. 
 Lancaster National Bank v. Moore, 233. 
 Lancaster Savings Inst. v. Reigart, 572. 
 Landa v. Obert, 720. 
 Landauer v. Cochran, 681. 
 Landon v. Humphrey, 1416. 
 Landsdale v. Shackleford, 1098. 
 Lane v. Black, 1114. 
 
 649 
 
LAW 
 
 INDEX TO THE CASES CITED. 
 
 LEG 
 
 Lane v. Farmer, 1354. 
 
 V. Hogan, 699, 1445. 
 
 «. Kasey, 393. 
 
 V. Latimer, 679. 
 
 V. Miller, 1300. 
 
 V. Shears, 173. 
 
 , United States v., 988. 
 
 Lanes v. Squyres, 55. 
 Lang V. Gale, 1339. 
 
 v. Henry, 164. 
 
 V. Johnson, 40. 
 
 V. Mackenzie, 96. 
 
 V. Phillips, 1343. 
 
 V. Whidden, 971. 
 
 Langan v. Hewett, 1145. 
 
 V. Sankey, 277. 
 
 Langdon v. Paul, 755. 
 
 V. Richardson, 1260. 
 
 Langford v. Cummings, 766. 
 
 V. Monteith, 489. 
 
 V. Pitt, 1347. 
 
 Langfort v. Tiler, 1320. 
 
 Langley v. Chapin, 1191. 
 
 Langston v. South Carolina Railr., 1437. 
 
 Langton v. Hughes, 547. 
 
 Lanier v. ToUeson, 96. 
 
 V. Wyman, 702, 707. 
 
 Lankton v. Stewart, 50. 
 Lanning v. Carpenter, 707. 
 Lansden v. McCarthy, 1182. 
 Lansing v. Gaine, 349. 
 
 V. Montgomery, 268. 
 
 Lapsley i'. McKinstry, 994. 
 Larey v. Taliaferro, 669. 
 Larimer v. Kelley, 1284. 
 Larkin v. Buck, 835. 
 
 V. Mitchell, &c. Lumber Co., 454. 
 
 Lash V. Parlin, 175. 
 
 Lashbrook v. Patten, 900. 
 
 Lataillade v. Santa Barbara Gas Co., 306. 
 
 Latch V. Wedlake, 348. 
 
 Laterrade v. Kaiser, 725. 
 
 Latham v. Udell, 361. 
 
 Lathrop v. Bramhall, 168, 175. 
 
 V. Brown, 567. 
 
 V. Hickson, 71. 
 
 V. Page, 50. 
 
 Laub, Commonwealth v., 393. 
 
 V. Paine, 751. 
 
 Laubenheimer i: Mann, 517. 
 Lauer v. Lee, 815. 
 Lauten v. Rowan, 1373. 
 Law!). Cross, 1109, 1226. 
 
 V. Grant, 1225. 
 
 Lawall V. Rader (2 Grant, Pa. 426), 132. 
 
 V. Rader (12 Harris, Pa. 283), 764. 
 
 Lawrence v. Dale, 680. 
 
 V. Davey, 795, 805. 
 
 V. Dole, 135, 804. 
 
 V. Gallagher, 1 062. 
 
 V. McArter, 930. 
 
 650 
 
 Lawrence v. Miller, 133, 1421. 
 
 V. Rice, 1126. 
 
 V. Willis, 963. 
 
 Lawrencebui-gh Nat. Bank v. Stevenson, 
 
 680. 
 Laws V, Band, 178. 
 Lawson v. Hogan, 795, 1445. 
 Lawton v. Buckingham, 75. 
 
 V. Gordon, 821. 
 
 V. State (5 Texas, 270), 393. 
 
 V. State (5 Texas, 272), 393. 
 
 Layng v. Stewart, 1119. 
 Laytou v. Pearce, 606, 785. 
 Lazell V. Miller, 632. 
 Lea V. Bringier, 1034. 
 
 V. Cassen, 489. 
 
 V. Whitaker, 1450, 1452. 
 
 Leach v. Beardslee, 449. 
 
 V. Buchanan, 295. 
 
 V. Keach, 76. 
 
 V. Marsh, 232. 
 
 V. Micklem, 383. 
 
 V. Tilton, 71. 
 
 League v. De Young, 572. 
 
 Leai'rd v. Smith, 1433. 
 
 Leake v. Burgess, 212. 
 
 Leakey v. Gunter, 194. 
 
 Lear v. Chouteau, 1295. 
 
 Leather Cloth Co. v. Lorsont, 516. 
 
 Leavitt v. Peck, 1145. 
 
 Leazure v. Hillegas, 1008. 
 
 Lebanon v. Heath, 818. 
 
 Lebanon Savings Bank v. HoUenbeck, 
 
 1028. 
 Le Bret v. Papillon, 1001. 
 Ledford v. Ferrell, 1292. 
 Lee V. Ashbrook, 1444. 
 
 V. Davis, 68. 
 
 V. Gamble, 572. 
 
 V. Griffin, 1316. 
 
 V. Kilburn, 449. 
 
 V. Lancashire, &c. Railway, 51, 176. 
 
 V. Lee, 224. 
 
 V. MoLeod, 1300. 
 
 V. Maboney, 1249. 
 
 V. Mathews, 1117. 
 
 V, Muggeridge, 44. 
 
 V. Newman, 1264. 
 
 11. Onstott, 1151. 
 
 V. Selleck, 1385. 
 
 V. Templeton, 305. 
 
 V. Tillotson, 793. 
 
 Lee & Co.'s Bank, In re, 560. 
 
 Leeds v. Beyer, 679. 
 
 Leeper v. Hersman, 298. 
 
 Lees V. Whitcomb, 77. 
 
 Le Fevre v. Le Fevre, 133. 
 
 Leffingwell u. White, 1339. 
 
 Leggett V. New Jersey, &c. Co., 1016. 
 
 Leggott V. Barrett, 520. 
 
 Legh V. Legh, 1180. 
 
LEW 
 
 INDEX TO THE CASES CITED. 
 
 LIT 
 
 Legrand v. Sidney College, 1016. 
 Legro ». Staples, 1179. 
 Lehigh Coal, &c. Co. v. Mohr, 1052. 
 Lehigh Water Co.'s Appeal, 575. 
 Lehman v. Shackleford, 722. 
 Leicester v. Eehoboth, 266. 
 Leightman v. Kadetska, 543. 
 Leighton v. Orr, 740. 
 Leitensdorfer v. Hempstead, 942. 
 Lemay v. Johnson, 751. 
 
 V. Williams, 754. 
 
 Lemayne v. Stanley, 344. 
 Lempriere v. Lange, 902, 921. 
 Lenhard o. Lenhard, 733. 
 Lent V. Padelford, 1247. 
 Leonard «. Carter, 390. 
 
 V. Phillips, 751. 
 
 V. Pitney, 1357. 
 
 V. Quinlan, 302. 
 
 Leopold V. Salkey, 607. 
 Le Page v. McCrea, 53. 
 Lepard v. Vernon, 1054. 
 Leppig «. Bretzel, 1209. 
 Leppla V. Mackey, 1191. 
 Leronx v. Brown, 1238, 1375. 
 Lerow v. Wilmanh, 96. 
 LeRoy «. Beard, 1404. 
 
 V. Crowninshield, 1402. 
 
 Le Sage v. Coussmaker, 224. 
 
 Leslie o. Knickerbocker Life Ins., 1101. 
 
 V. Urbana, 1023. 
 
 Lessley v. Phipps, 1403. 
 Lester v. Garland, 1342, 1343. 
 
 V. Graham, 244. 
 
 V. Palmer, 70. 
 
 Letchford, In re, 922. 
 Leuckart v. Cooper, 446. 
 Levet V. Creditora, 627. 
 Levi V. Booth, 1062. 
 
 V. Levi, 528. 
 
 Levisee v. Shrereport City Railroad, 222. 
 
 Levison v. Stix, 1280. 
 
 Leviston v. Junction Kailroad, 853. 
 
 Levistones v. Landreaux, 1223. 
 
 Levy V. Bank of United States, 700. 
 
 V. Burgess, 1421. 
 
 W.Levy, 1374, 1385. 
 
 V. McCartee, 999. 
 
 V. Schwartz, 795, 1445. 
 
 V. Walker, 520. 
 
 V. Wilson, 1032. 
 
 Lewis V. Baird, 962. 
 
 1'. Bingham, 775. 
 
 V. Bourbon, 1100. 
 
 V. Browning, 328. 
 
 V. Cosgrave, 672, 689. 
 
 V. Esther, 1444. 
 
 V. Eord, 1363. 
 
 >'. Headley, 1379. 
 
 V. Hodgdon, 285. 
 
 V. Kerr, 1053. 
 
 Lewis V. Latham, 472. 
 
 V. Lewis, 211. 
 
 V. Ludwick, 596. 
 
 V. McCabe, 1389. 
 
 V. Nicholson, 1120. 
 
 V. Overby, 111. 
 
 V. Owen, 1401. 
 
 V. Payn, 755, 758. 
 
 V. Pead, 958. 
 
 V. Seabury, 520. 
 
 V. Shepherd, 751. 
 
 V. Shreveport, 1099. 
 
 V. State, nil. 
 
 , State v., 348. 
 
 V. Tobias, 830. 
 
 V. Woodfolk, 1370, 1402. 
 
 Lichty V. Hugus, 1355. 
 Liddell v. Sims, 401, 1347. 
 Liebke v. Knapp, 525. 
 Lightfoot V. Heron, 981. 
 — — V. Tenant, 472. 
 Lightly V. Clouston, 227. 
 Lill V. Brant, 472. 
 Lillard i;. Shannon, 673. 
 Lilly I?. Waggoner, 959. 
 Lincoln v. Buckmaster, 969. 
 
 (-'. Erie Preserving Co., 1248. 
 
 Lindauer v. Delaware Ins. Co., 1335. 
 
 V. Hay, 651. 
 
 Lindsay v. Hill, 1388. 
 
 V. Lynch, 316. 
 
 Lindsay Petroleum Co. v. Hurd, 666. 
 Lindsley v. Malone, 1109, 1226. 
 Line v. Nelson, 50, 870, 874. 
 Lines v. Smith, 1266. 
 Liness v. Hesing, 627. 
 Lininger v. Raymond, 1209. 
 Linington v. Strong, 763. 
 Link V. Link, 1216. 
 Linker v. Long, 821. 
 Linn, United States v., 108. 
 Linsley v. Lovely, 177, 1101. 
 Linton v. Porter, 243. 
 Lipscombe v. Holmes, 284. 
 Lister v. Clark, 174. 
 
 V. Hodgson, 120. 
 
 Litchfield v. Hutchinson, 664. 
 Littell V. Nichols, 1437. 
 Little V. Allen, 57. 
 
 V. Dawson, 224. 
 
 V. District of Columbia, 68. 
 
 V. Duncan, 944. 
 
 V. Gibbs, 211. 
 
 V. Hazzard, 1151. 
 
 V. Hobbs, 53. 
 
 V. Little, 977. 
 
 V. McCarter, 1303. 
 
 V. Phenix Bank, 1179. 
 
 V. Thurston, 828. 
 
 V. Willets, 82. 
 
 V. Wilson, 1280. 
 
 651 
 
LON 
 
 INDEX TO THE CASES CITED. 
 
 LUC 
 
 Little Rock & Nap. Eailr. v. Little Rock, 
 Mississippi River, &c. Railr., 310. 
 
 Little Rock, &c. Ry. v. Chapman, 1354 
 
 , State v., 992. 
 
 Littlefield v. Littlefield, 1363. 
 
 V. Smith, 1330. 
 
 Littlejoha v. Patillo, 40. 
 
 Liverpool Adelphi Loan Assoc, v. Fair- 
 hurst, 902. 
 
 Liverpool Ins. Co. v. Massachusetts, 1406. 
 
 Livesey v. Omaha Hotel, 1422. 
 
 Livingston, In re, 958. 
 
 V. Cox, 440. 
 
 t). Rendall, 8.59. 
 
 V. Rogers, 79. 
 
 V. Roosevelt, 1145. 
 
 V. Tremper, 869. 
 
 Lizzie Merry, The, 1182. 
 
 Llanelly Ry. &c. v. London, &c. Ry., 75. 
 
 Lloyd V. Barden, 64. 
 
 V. Bennett, 352, 355. 
 
 V. Johnson, 506. 
 
 V. Maund, 1362. 
 
 Lloyd's V. Harper, 603. 
 
 Lobdell V. Baker, 245. 
 
 ;;. Hopkins, 1436. 
 
 Lock V. Wilson, 1363. 
 
 Lock Haven Bank v. Mason, 307. 
 
 Locke V. Alexander, 1070. 
 
 V. Sioux City, &c. Railway, 375. 
 
 1'. Stearns, 1112. 
 
 Lockhart v. Geir, 1299. 
 
 Lockwood V. Barnes, 1274. 
 
 V. Gilson, 1253. 
 
 Loeschigk o. Bridge, 1204. 
 
 Loffus V. Maw, 224, 285. 
 
 Logan V. Mathews, 70. 
 
 u. Plummer, 121. 
 
 Lomax v. Bailey, 835, 1444. 
 
 Lomis V. Ruetter, 591. 
 
 London, &c. Railway n. Blackmore, 856. 
 
 V. Lindsay, 1403. 
 
 Long V. Davis, 75. 
 
 V. Fox, 686, 976. 
 
 V. Hartwell, 1049, 1096, 1418. 
 
 V. Hickingbottom, 243. 
 
 V. Long, 462. 
 
 V. Mason, 751. 
 
 V. Millar, 1077. 
 
 V. Morrison, 1416. 
 
 u. Mulford, 740. 
 
 V. Towl, 70. 
 
 V. Williams, 942. 
 
 V. Yancey ville Bank, 1354. 
 
 Long Island Ferry v. Terbell, 805. 
 
 Longnor, Rex v., 345, 346. 
 
 Longridge v. DorviUe, 57. 
 
 Longwell v, Bentley, 268. 
 
 Longworth v. Con well, 1105. 
 
 V. Higham, 50. 
 
 Lonsdale v. Brown, 63. 
 
 652 
 
 Lonsdale v. Church, 1459. 
 Look V. Dean, 961. 
 Loomis V. Newhall, 85, 90. 
 
 V. Ruck, 728, 729. 
 
 V. Simpson, 1067. 
 
 Loop V. Loop, 902. 
 Lord V. Chadbourne, 471. 
 
 V. Hall, 1067. 
 
 , Reg. v., 931. 
 
 V. Thomas, 607, 837, 839. 
 
 V. Wheeler, 588. 
 
 Loren v. Hillhouse, 1421. 
 
 Loring v. Boston, 327, 331. 
 
 Los Angeles v. Melius, 348. 
 
 Losey v. Bond, 942. 
 
 Loudon, &c. See. v. Hagerstown, &c 
 
 Bank, 1092, 1144. 
 Louis V. Triscony, 864. 
 Louisiana v. St. Martin's Par., 555, 561. 
 Louisville v. Anderson, 465. 
 
 V. Portsmouth Sav. Bank, 1340. 
 
 Louisville Bank v. Young, 768. 
 Louisville, &c. Railroad v. Blair, 1067. 
 
 V. Letson, 1003. 
 
 Lounsbury v. Beebe, 795. 
 Love V. Brindle, 476. 
 
 V. Cobb, 1292, 1331. 
 
 V. Hall, 1129. 
 
 V, Sierra Nevada Lake Water, &c. 
 
 Co., 1070. 
 
 V. Wells, 537. 
 
 Lovejoy u. Spafford, 1148. 
 Lovelock V. Franklyn, 1426. 
 Lovering v. Lovering, 405, 1426. 
 Lovett V. Steam Saw Mill Assoc, 1016. 
 Loving V. Dixon, 348. 
 
 V. Milliken, 173. 
 
 Low V. Connecticut, &c. Railroad, 1109. 
 
 V. Forbes, 137. 
 
 V. Hallett, 1398. 
 
 V. Howard, 97. 
 
 V. Perkins, 1088. 
 
 Lowe V. Bryant, 40. 
 
 V. Gist, 925. 
 
 V. Griffith, 911. 
 
 V. Peers, 782, 1459. 
 
 V. Sinklear, 925, 937. 
 
 V. Thompson, 176. 
 
 V. Weatherley, 851. 
 
 V. Young, .535. 
 
 Lower i'. Winters, 1304. 
 Lowery v. Drew, 1151. 
 Lowry ii. Dillman, 534. 
 
 V. Pinson, 1204. 
 
 V. Read, 444. 
 
 Loyd V. Lee, 63. 
 
 V. Malone, 528. 
 
 Lozear v. Shields, 962, 963. 
 Lubbering v. Kohlbrecher, 753. 
 Lucas V. Allen, 503. 
 V. Chamberlain, 1265. 
 
MCC 
 
 INDEX TO THE CASES CITED. 
 
 MCC 
 
 Lucas V. Darien Bank, 1152. 
 
 ti. James, 341. 
 
 V. Mitchell, 1238. 
 
 Luce V. Dorchester Mut. Pire Ins., 449. 
 
 K. Zeile, 1261. 
 
 Lucy, Ex parte, 57. 
 Ludlow V. Charlton, 1015. 
 
 V. Cooper, 440. 
 
 V. Gill, 1204. 
 
 V. Hardy, 479. 
 
 Lndwig V. Fuller, 83, 1309. 
 Luellen v. Hare, 1175. 
 Luey V Bundy, 782, 828. 
 Lufkin V. Mayall, 921. 
 Lumpkin v. Johnson, 1286. 
 
 V. Wilson, 1062. 
 
 Lumsden's Case, 929. 
 
 Lunatic Asylum v. Douglas, 1167. 
 
 Lunday u. Thomas, 1111. 
 
 Luscomb V. Ballard, 237, 1254. 
 
 Lutz V. Thompson, 1423. 
 
 Lyall V. Edwards, 398. 
 
 Lyburn v. Warrington, 165. 
 
 Lycoming Fire Ins. Co. v. Wright, 884. 
 
 Lydick v. Baltimore, &c. Railroad, 48. 
 
 Lyman v. Babeock, 1452. 
 
 V. Lyman, 1 425. 
 
 V. Norwich University, 1226. 
 
 u. United Insurance Co., 707. 
 
 Lynch's Appeal, 688, 701. 
 Lynch v. Fallon, 527. 
 
 V. Hartwell, 1008. 
 
 Lynde v. Budd, 942. 
 
 Lyndon Granite Co. v. Farrar, 1420. 
 
 Lyon V. Clark, 1459. 
 
 V. George, 456. 
 
 V. King, 1276. 
 
 V. Pollock, 1062. 
 
 V. Reed, 260. 
 
 V. Williams, 1078. 
 
 Lytchet Matraverse, Rex v., 898. 
 Lyttle V. Cozad, 348. 
 
 Maas V. Missouri, &c. Railway, 676. 
 McAdams v. Cates, 660. 
 McAfferty v. Conover, 282, 296. 
 McAlister v. Howell, 516. 
 McAllister v. Smith, 1383. 
 McAnnulty v. Seick, 173. 
 McArthur v. Goddin, 1409. 
 McAvoy V. Long, 404. 
 McBean v. Morrison, 1077. 
 Macbeath v. Haldimand, 994. 
 McBratney v. Chandler, 74. 
 McBride v. Hagan, 875. 
 McCabe v. Hunter, 1327. 
 McCaleb v. Pradat, 394. 
 McCall V. Clayton, 1078. 
 McCalop V. Hereford, 544. 
 McCampbell v. McCampbell, 1238. 
 
 McCandlish v. Cruger, 1379. 
 McCann v. Atherton, 357. 
 McCarley v. Tippah Supervisors, HI. 
 McCarren v. McNulty, 1434. 
 McCarthy v. Decaix, 740. 
 
 V. Pope, 1303. 
 
 McCartney v. Shepard, 483. 
 McCarty v. Blevins, 61. 
 
 V. Hampton Build. Assoc, 723. 
 
 V. Van Dalfsen, 881. 
 
 McCelvy v. Noble, 1266. 
 McClain v. Davis, 966, 974. 
 
 u. McClain, 1168. 
 
 McClees v. Burt, 1404. 
 McClellan v. Coffin, 830. 
 
 V. Parker, 1076. 
 
 V. Robe, 1018. 
 
 V. Sanford, 1283. 
 
 McClenticks v. Bryant, 994. 
 McClintic v. Layman, 1360. 
 McClintick v. Cummins, 727. 
 McCloskcy v. Cyphert, 923. 
 
 V. McCormick, 177. 
 
 McClung i: Kelley, 1309. 
 McClure v. Herring, 1070. 
 
 V. Lewis, 736. 
 
 V. People's Freight Railway, 169. 
 
 McClurg's Appeal, 517. 
 McComb V. Wright, 1076. 
 McCombs V. Guild, 1355. 
 
 V. McKennan, 795. 
 
 McConnell v. Bowdry, 1094. 
 
 V. Brayner, 75, 124, 1303. 
 
 0. Brillhart, 1249. 
 
 V. Kitchens, 472. 
 
 V. New Orleans, 379. 
 
 McCord V. West Feliciana Railroad, 795. 
 
 V. Williams, 520. 
 
 McCormack v. Molburg, 346. 
 McCormic v. Leggett, 938. 
 McCormick v. Drummett, 1277. 
 
 V. Kelly, 1063. 
 
 V. McMurtrie, 300. 
 
 u. Malin, 45. 
 
 V. Mitchell, 1452. 
 
 McCoun V. New York Cent. &c. Rail, 
 
 186, 192. 
 McCown V. Wheeler, 1171. 
 McCoy V. Huffman, 920. 
 
 V. Moss, 83, 1309. 
 
 McCracken v. Finley, 783. 
 
 V. Hayward, 572. 
 
 V. San Francisco, 848, 1224. 
 
 McCrackin v. Wright, 277. 
 McCrary v. Ashbaugh, 1029, 1121. 
 
 V. McFarland, 453. 
 
 V. Ruddick, 219. 
 
 McCrea v. Purmort, 124, 1246. 
 McCreary v. Parsons, 680. 
 
 V. State, 571. 
 
 McCreery v. Everding, 859. 
 
 663 
 
MCG 
 
 INDEX TO THE CASES CITED. 
 
 MCM 
 
 McCreery v. Green, 591. 
 McCrelish v. Churchmaii, 401. 
 McCrilUs V. How, 916. 
 McCue V. Smith, 1234. 
 McCuUoch V. Eagle Ins. Co., 328. 
 McCulIough V. Moss, 1009. 
 
 V. Sominerville, 11.91, 1152. 
 
 V. Talladega Ins. Co., 304, 1017. 
 
 V. Wainright, 390. 
 
 McCune v. McMichael, 296. 
 McCurdy v. Rogers, 327. 
 McCutchen v. McCntchen, 83. 
 McDaniel v. Parks, 838. 
 McDonald v. Beall, 248. 
 
 V. Bewick, 318, 319. 
 
 u Black, 1052. 
 
 V. Egglestou, 1151. 
 
 V. Gardner, 591. 
 
 V. Gray, 1437. 
 
 V. Gregory, 267, 258. 
 
 V. Haughton, 476. 
 
 V. Jackson, 757. 
 
 y. Mountain Lake Water Co., 815. 
 
 «. Peacemaker, 226. 
 
 V. Todd, 226. 
 
 V. Trafton, 661. 
 
 V Williams, 1426. 
 
 McDonough v. Heyman, 1049. 
 
 V. Kane, 174. 
 
 McDougall V. Page, 96. 
 McDowel V. Chambers, 341. 
 McDugald V. McFadgin, 768. 
 McElhanon v. McElhanon, 883. 
 McElroy v. Buck, 1249. 
 
 V. Ludlum, 1237. 
 
 McBlvain v. Mudd, 567. 
 McElven u. Sloan, 44, 96, 100, 
 McEwen v. Troost, 83. 
 McFadden v. O'Donnell, 767. 
 McFaddin v. Vincent, 958, 964. 
 McFerran v. Taylor, 701. 
 McGan v. Marshall, 942. 
 MoGavock v. Puryear, 506, 535. 
 
 'V. Woodlief, 1136. 
 
 McGee v. Larramore, 1078. 
 
 V. Mathis, 563. 
 
 McGehee v. Greer, 1363. 
 McGill V. Woodward, 942. 
 McGilvery v. Moorhead, 875. 
 McGloin V. Vanderlip, 1254. 
 McGlucky V. Bitter, 1235. 
 McGlynn v. Moore, 794. 
 McGowen v. Bush, 510. 
 
 V. Myers, 669. 
 
 McGrann v. North Lebanon Railr., 137. 
 Macgregor v. Dover, &c. Railway, 501. 
 MiieGregor v. Gardner, 1050. 
 McGregor v. Brown (5 Pick. 170), 376. 
 
 V. Brown (6 Seld. 114), 1294. 
 
 V. Cleveland, 1149. 
 
 McGriff V. Porter, 1054. 
 
 654 
 
 McGuire v. Ramsey, 194. 
 
 V. Stevens, 1249. 
 
 McHany v. Schenk, 1061. 
 Machias Hotel v. Covle, 1080. 
 McHugh V. Schuylkill, 847. 
 Mcintosh V. Lee, 614. 
 Mclntyre v. Belcher, 520. 
 
 V. Park, 345, 775, 1223. 
 
 V. White, 393. 
 
 Mack's Appeal, 119. 
 Mack u. Lee, 1389. 
 Mackalley's Case, 536. 
 Mackay v. Bloodgood, 1047, 1151. 
 
 V. Dick, 1424, 1433. 
 
 McKay v. Carrington, 832. 
 
 V. Royal, 1254. 
 
 Mackbee v. Griffith, 506. 
 McKee v. Eaton, 685. 
 
 V. Miller, 1431. 
 
 McKelvey v. Truby, 300. 
 McKensiet). Farrell, 180. 
 Mackenzie v. Edinburg School Tr., 165. 
 McKenzie v. Culbreth, 50, 52, 54. 
 McKewan v. Sanderson, 527. 
 Mackey v. Proctor, 926. 
 
 V. Swartz, 795. 
 
 McKildoe v. Darracott, 794. 
 Mackinley v. McGregor, 667. 
 McKinley v. Ensell, 1309. 
 
 i: Watkins, 321. 
 
 McKinnell v. Robinson, 31, 535. 
 McKinney v. Miller, 127. 
 
 V. Rhoads, 354. 
 
 V. Wilson, 1319. 
 
 McKissick v. McKissick, 1403. 
 McKnightw. Dunlop, 1319. 
 
 B. Kellett, 690. 
 
 McLaren v. Charrier, 1 1 29. 
 Maclary v. Reznor, 51. 
 McLaughlin v. Child, 1420. 
 
 V. Hutchins, 1459. 
 
 V. Piatti, 1309. 
 
 McLauren v. Graham, 484. 
 McLaurine v. Monroe, 877. 
 Maclay v. Harvey, 327. 
 McLean v. NicoU, 1249. 
 Macleay, In re, 442, 469. 
 McLendon v. Frost, 1260. 
 McLuie V. Colclongh, 352. 
 McMahan v. Bowe, 497. 
 McMahon v. Rauhr, 883. 
 
 V. Smith, 492. 
 
 McMaster v. Vernon, 877. 
 
 McMasters v. Pennsylvania Railr., 449. 
 
 V. Reed, 1005, 1020. 
 
 McMechen v. Baltimore, 1134. 
 McMerty v. Morrison, 1411. 
 McMichael v. Carlyle, 114, 1354. 
 
 V. Kilmer, 833. 
 
 McMicken v. Perin, 497. 
 McMillan v. Pish, 709. 
 
MAJ 
 
 INDEX TO THE CASES CITED. 
 
 MAE 
 
 McMillan v. Vischer, 725. 
 McMinn v. Phipps, 528. 
 
 I'. Richmonds, 916. 
 
 McMullen v. Gable, 45. 
 
 V. Lockwood, 711. 
 
 i). Eafferty, 1354. 
 
 It. Riley, 1302. 
 
 McMurry v. Mobley, 1074. 
 McMartry v. Brown, 345, 1045, 1047. 
 
 V. Il'ank, 1045. 
 
 McNab V. Young, 1168. 
 
 McNamara v. McNamara, 1028. 
 
 McNamee u. Carpenter, 875. 
 
 McNaughter v. Cassally, 795. 
 
 McNealy v. Gregory, 567. 
 
 McNeilly v. Continental, &c. Ins. Co., 993. 
 
 McNish V. Reynolds, 76. 
 
 McNitt V. Clark, 1435. 
 
 McNutt V. McMahan, 1170. 
 
 Macomber v. Parker, 449. 
 
 Macon v. Huff, 1022. 
 
 McPherson v. Cox, 1274. 
 
 V. Meek, 349. 
 
 V. Watt, 740. 
 
 McEaven v. Crisler, 751, 752, 1423. 
 McTaggart v. Rose, 1319. 
 Mactier v. Fritt, 327. 
 McVey v. Ely, 757. 
 McVoy V. Wheeler, 107. 
 Mc Williams v. Phillips, 489. 
 
 V. Webb, 1180. 
 
 V. Willis, 1077. 
 
 Madan v. Sherard, 318, 321. 
 Madden v. Blain, 452. 
 Maddison v. Alderson, 1238, 1323. 
 Maddox v. Graham, 1187. 
 
 V. Miller, 909. 
 
 V. Simmons, 966. 
 
 Maddux v. Bevan, 53, 1226. 
 Madigan v. Mead, 1 73. 
 Madison v. Shocldey, 82. 
 Madison Ins. Co. v. Forsythe, 471. 
 Madison, &c. Plank Road v. Watertown, 
 
 &c. Plank Road, 1005. 
 Madrazzo, Ex parte, 989. 
 MafEet v. Ijams, 528. 
 Magee v. Fisher, 106. 
 
 V. Lavell, 1452. 
 
 V. Magee, 923. 
 
 V. Welsh, 926. 
 
 Magoffin V. Holt, 1347. 
 Maguire v. Pingree, 1379. 
 
 V. Smock, 499. 
 
 Mahon v. Columbus, 830. 
 
 Mahoney v. McLean, 426. 
 
 Main's Case, 1426. 
 
 Maine v. Butler, 1382. 
 
 Maine Mnt. &c. Ins. v. Hodgkins, 346. 
 
 Mains v. Haight, 1422. 
 
 Major V. Hansen, 755. 
 
 Majors w. Hickman, 1431. 
 
 Majors v. Rice, 302. 
 
 Makepeace i-. Harvard College, 382. 
 
 Malbon v. Birney, 1421, 1444. 
 
 Male V. Roberts, 1371. 
 
 Malin v. Malin (15 Johns. 293), 755. 
 
 V. Malin (1 Wend. 625), 194. 
 
 Malins v. Brown, 1237. 
 Mallan v. May, 126, 517. 
 Mallet 0. Bateman, 1258. 
 Mallett V. Page, 352. 
 Malli V. Willett, 494. 
 Mallory K. Gillett, 153. 
 
 V. Stodder, 351. 
 
 Malone v. Plato, 1319. 
 
 V. Searight, 1360. 
 
 Maltby v. Christie, 1132. 
 Manahan v. Noyes, 679, 680. 
 Manchester v. Burns, 632. 
 Manchester Bank v. Fellows, 1127. 
 Mand v. Trail, 377, 456. 
 Mangles v. Dixon, 1180. 
 Manhattan Co., People v., 559. 
 Mann v. Mtna Ins. Co., 1109. 
 
 V. Bishop, 534. 
 
 V. Eckford, 275. 
 
 V. Stowell, 682. 
 
 Manning v. Gill, 611, 614. 
 
 V. Johnson, 921, 940. 
 
 V. Nicaragua, 989. 
 
 , People v., 608. 
 
 Manser's Case, 346. 
 Mansfield v. Trigg, 827. 
 
 V. Watson, 734, 984. 
 
 Mansfield, &c. Railroad v. Veeder, 404. 
 
 Manter v. Churchill, 63. 
 
 Many v. Beekman lion Co., 1078. 
 
 Maple V. Kussart, 286. 
 
 Mapleback, In re, 492. 
 
 Maples V. Wightman, 201, 925, 933. 
 
 Marchand v. Coyle, 1000. 
 
 V. Loan and Pledge Assoc, 221. 
 
 Marcy D.Crawford, 1265. 
 
 V. Marcy, 1283. 
 
 Marden v. Portsmouth, 208. 
 
 Marie v. Garrison, 528. 
 
 Marietta Sav. Bank v. Janes, 372, 857. 
 
 MaVine, &c. Mining, &c. v. Bradley, 68. 
 
 Mariner v. Collins, 223. 
 
 V. Milwaukee, &c. Railway, 270. 
 
 Mariposa Co. v. Bowman, 725. 
 
 , Peoples., 1127. 
 
 Markham v. Gonaston, 775. 
 
 Markle v. Hatfield, 699. 
 
 Marks v. Cass County Mill, &c. Co., 454. 
 
 Marksbury v. Tavlor, 627. 
 
 Marie v. Flake, 487. 
 
 Marlor v. Texas, &c. Railway, 786. 
 
 Marlow v. Pitfeild, 914. 
 
 Marquat y. Marqnat, 1236. 
 
 Marquette, &c. Railroad v. Taft, 1066. 
 
 Marriot v. Hampton, 272. 
 
 655 
 
MAR 
 
 INDEX TO THE CASES CITED. 
 
 MATJ 
 
 Marriott v. Thompson, 104. 
 Marryat v. Marryat, 129, 252. 
 Marsh v. Bellew, 795. 
 
 V. Fuller, 82. 
 
 V. Gold, 483. 
 
 V. Hyde, 1312, 1319. 
 
 V. Jelf, 1134. 
 
 D. Lisle, 75. 
 
 V. McPherson, 840. 
 
 V. Putnam, 552. 
 
 !•. Russell, 523. 
 
 V. WyckoflF, 634. 
 
 Marshall v. Baltimore, &c. E., 499, 502. 
 
 V. Billingsly, 733. 
 
 a. CoUett, 704. 
 
 0. Craig, 1431. 
 
 I,-. Ferguson, 1296, 1344, 1436. 
 
 V. Fisk, 391. 
 
 V. Hann, 342. 
 
 V. Morehouse, 1309. 
 
 V. Morris, 1269. 
 
 V. Perry, 451, 453. 
 
 Marsonu. Petit, 751. 
 Marston v. Gale, 1299. 
 
 V. Simpson, 680. 
 
 V. Swett, 1239. 
 
 V. Wilcox, 176. 
 
 Martendale v. FoUet, 757. 
 Martin v. Amos, 497. 
 
 V. Bartow Iron Works, 473. 
 
 u. Black (20 Ala. 309), 1266. 
 
 V. Black (21 Ala. 721), 327. 
 
 V. Boyce, 273. 
 
 V. Broad us, 830. 
 
 V. Clarke, 497. 
 
 V. Cole, 169. 
 
 V. Crompe, 863. 
 
 V. Decatur Bank, 1357. 
 
 V. Drinan, 203. 
 
 r. Esimes, 834. 
 
 V. Flowers, 1070. 
 
 V. Gale, 916. 
 
 V, Hunt, 601. 
 
 V. Judd, 614, 620. 
 
 V. Long, 399. 
 
 V. Martin (35 Ala. 560), 688. 
 
 V. Martin (1 Sm. & M. 176), 1388. 
 
 V. Mayo, 936, 943. 
 
 V. Moulton, 1040. 
 
 V. Quinn, 211. 
 
 V. Ranlett, 528. 
 
 V. Richardson, 1180. 
 
 V. Root, 1198. 
 
 V. Schoenberger, 1444. 
 
 V. Taylor, 1459. 
 
 V. United States, 988. 
 
 0. Wade, 498. 
 
 V. Weyman, 1289. 
 
 V. Wnght, 224. 
 
 Martindale v. Falkner, 1355. 
 Martyn v. Clue, 1191. 
 
 656 
 
 Marvin v. Bennett, 695. 
 
 V. Lewis, 972. 
 
 V. Stone, 404. 
 
 V. Wallace (2 Jur. n. s. 689), 1319. 
 
 V. Wallis (6 Ellis & B. 726), 1319. 
 
 Mary, The, 273. 
 Marye v. Strouse, 450. 
 Maryland v. Railroad, 372. 
 Marziou v. Pioche, 1051. 
 Mason v. Campbell, 53. 
 
 V. Chappell, 244. 
 
 V. Lawing, 833. 
 
 V. Mason, 1304. 
 
 V. Moulden, 124. 
 
 V. WatkinSj 487.' 
 
 V. Williams, 298. 
 
 V. Wright, 898, 911. 
 
 V. York, &c. Railroad, 1193, 1220. 
 
 Massachusetts Gen. Hosp. v. Fairbanks, 
 
 968. 
 Massey v. Pike, 1152. 
 
 V. Sladen, 1437. 
 
 Massie o. Enyart, 1210. 
 Massing v. State, 500. 
 Massure v. Noble, 267. 
 Mastelar v. Edgarton, 707. 
 Master v. Miller, 105, 747, 750. 
 Masters v. Freeman, 372. 
 Materne v. Horwitz, 524. * 
 
 Mather v. Corliss, 361. 
 Mathes v. Dobschuetz, 911. 
 Mathews v. Cowan, 902. 
 
 V. Dragaud, 881. 
 
 V. Sharp, 1452. 
 
 V. Starr, 528. 
 
 Mathison v. Hanks, 494. 
 Mathuson v. Crawford, 1403. 
 Matlock V. Fry, 1296. 
 Matson v. Booth, 775. 
 
 , State v., 869. 
 
 V. Wharam, 1260. 
 
 Matteson v. Blackmer, 1109. 
 Matthews v. Baxter, 616, 620, 846, 975, 
 
 98.5. 
 
 V. Mcnedger, 1140. 
 
 v. Milton, 1260. 
 
 i,-. Sheehan, 173. 
 
 V. Skinker, 1005. 
 
 V. Smith, 81. 
 
 V. Sowle, 1092, 1094. 
 
 V. Wilson, 1121. 
 
 Matthewson v. Lydiate, 815. 
 
 Matthey v. Wood, 688. 
 
 Matthiessen, &c. Ref. Co. v. McMahon, 
 
 233. 
 Mattocks V. Owen, 492. 
 
 V. Young, 803. 
 
 Maupin v. Pic, 187. 
 Mauran, People v., 1006. 
 Maurer v. Mitchell, 93. 
 Maurice, United States v., 988. 
 
MEL 
 
 INDEX TO THE CASES CITED. 
 
 MES 
 
 Maus V, Worthing, 1045. 
 Maxfield v. Terry, 174. 
 Maxwell v. Campbell, 495. 
 
 V. Graves, 81. 
 
 V. Griswold, 632, 725. 
 
 V. Haynes, 1264. 
 
 V. Reilly, 1360. 
 
 May V. Baskin, 1392. 
 
 V. Magee, 1115. 
 
 V. Seymour, 645. 
 
 V. Thomson, 319. 
 
 V. Ward, 1322. 
 
 V. Webb, 922. 
 
 V. Williams, 1265. 
 
 Maybin v. Coulon, 471. 
 
 Mayer v. Dwinell, 785. 
 
 V. Erhardt, 294. ^ 
 
 V. New York, 1445. 
 
 V. Kamsey, 290, 293. 
 
 Mayhew v. Phoenix Ins. Co., 723. 
 
 V. Prince, 1077. 
 
 Mayloy, Com'th v., 445, 446, 452. 
 Maynard v. Fellows, 1 149. 
 Mays V. Dwight, 695. 
 
 V. Williams, 479. 
 
 Meach v. Stone, 1237. 
 
 Mead v. Bunn, 642, 664, 73&. 
 
 11. Keyes, 1261. 
 
 , People II., 108. 
 
 V. Westchester Pire Ins. Co., 707. 
 
 Meade v. Beale, 890. 
 
 V. Webb, 660. 
 
 Meader u. White, 542. 
 Meadow v. Bird, 502. 
 Meadows v. Smith (12 Ire. 18), 1078. 
 
 V. Smith (7 Ire. Eq. 7), 721. 
 
 Means v. Peaster, 1204. 
 
 V. Presbyterian Church, 379. 
 
 Mears v. Bickford, 923. 
 
 V. Waples, 449. 
 
 Mease u. Wagner, 1258. 
 Mechanics Bank w. Bank of Columbia, 
 1082, 1083. 
 
 V. Seton, 1193. 
 
 Mechanics, &c. Bank v. Debolt, 559. 
 
 r. Wixson, 63. 
 
 Meckley's Estate, 705. 
 
 Mecorney v. Stanley, 63. 
 
 Mecum v. Peoria, &c. Railroad, 401 . 
 
 Medbury v. Watrous, 921. 
 
 Medlin v. Platte, 753. 
 
 Medsker v. Richardson, 223. 
 
 Meechi;. Smith, 1119. 
 
 Meincke a. Palk, 1316. 
 
 Meister v. Birney, 299. 
 
 Melbourn, Ex parte, 1371. 
 
 Melchert v. American Union Tel., 534. 
 
 Melchoir v. McCarty, 542, 547. 
 
 Melick 0. Darling, 779, 783. 
 
 Mellen ». Whipple, 203, 887, 1220. 
 
 Melton V. Lambavd, 1295. 
 
 42 
 
 Memphis, &c. Railroad c. Chastine, 676. 
 
 V. Neighbors, 680, 832. 
 
 Memphis, &c. Railway v. Koch, 1028. 
 
 Mendenhall v. Klinck, 1299. 
 
 V. Parish, 275. 
 
 Menderback v. Hopkins, 211. 
 
 Menkins v. Lightner, 960. 
 
 Menzell v. Railway, 411. 
 
 Mercer v. Hacket, 1187. 
 
 Mercer Mining & Manuf. Co. v. McKee, 
 284. 
 
 Merchants Bank v. Central Bank, 1083. 
 
 V. Spalding, 1386, 1387. 
 
 Merchants Despatch Co. «. Smith, 593. 
 
 Merchants Despatch Transp. Co. v. 
 
 - Kahn, 596. 
 
 Merchants Savings, &c. Co. v. Good- 
 rich, 530, 531. 
 
 Meredith v. Crawford, 921, 1445. 
 
 V. Reed, 609. 
 
 V. Salmon, 169. 
 
 Meriden Britannia Co. v. Zingsen, 1261. 
 
 Meriwether v. Smith, 542. 
 
 Merriam v, Cunningham, 902, 909. 
 
 V. Field, 244. 
 
 V. Pine City Lumber Co., 375. 
 
 V. Steams, 537. 
 
 V. Wilkins, 944. 
 
 V. Wolcott, 245. 
 
 Merrick v. Bank of Metropolis, 93, 505. 
 
 V. Burlington, &c. Plank Road, 
 
 1016, 1020. 
 
 V. Giddings, 48, 1223. 
 
 V. Peru Coal Co., 1022. 
 
 Merrick's Estate, In re, 1080, 1087. 
 
 Merrifield v. Parritt, 1 109. 
 
 Merrill v. Bank of Norfolk, 1087. 
 
 V. Bell, 608. 
 
 V. Emery, 608. 
 
 V. Ithaca, &c. Railroad, 1444. 
 
 V. Kenyon, 1076. 
 
 V. Melchior, 392. 
 
 V. Prince, 147. 
 
 V. Wilson, 1076. 
 
 Merrills V. Swift, 353. 
 
 Merriman i\ Lacefield, 45. 
 
 Merritt v. Clason, 341, 1245. 
 
 V. Cotton States Life Ins. Co., 805. 
 
 V. Earie, 538. 
 
 V. Gumaer, 958, 975. 
 
 V. Robinson, 832. 
 
 Merryweather v. Nixan, 216. 
 
 Mers V. Franklin Ins. Co., 77. 
 
 Mersey Steel, &c. Co. v. Naylor (9 Q. B. 
 D. 648), 828. 
 
 Mersey Steel & Iron Co. v. Naylor (9 
 Ap. Cas. 434), 817, 1428. 
 
 Merwin v. Huntington, 627. 
 
 Messer v. Oestreich, 376. 
 
 V. Smyth, 651 . 
 
 Messier v. Amery, 1074. 
 
 657 
 
MIL 
 
 INDEX TO THE CASES CITED. 
 
 MIS 
 
 Metcalf V. Taylor, 384. 
 
 Methodist Ep. Church v. Hoboken, 890. 
 
 Methudy v. Ross, 319. 
 
 Metropolitan Life Ins. Co. v. Meeker, 727. 
 
 Metz V. Soule, 989. 
 
 Meyer v. Atkins, 1056. 
 
 V. Barker, 1076. 
 
 V. Hartman, 1264. 
 
 V. Lowell, 1220. 
 
 V. Morgan, 782, 1 109. 
 
 «. Muscatine, 1187. 
 
 V. Yesser, 653. 
 
 Meyerhoff v. Froehlich, 95, 1364. 
 
 Meyers v. Funk, 651. 
 
 Meyrick v. Meyrick, 409. 
 
 Mhoon V. Drizzle, 1302. 
 
 Miami v. Blake, 208. 
 
 Michael v. Bacon, 481, 506. 
 
 Michels V. Olmstead, 357. 
 
 Michigan, &c. Railroad v. Dunham, 832. 
 
 Michigan Cent. Railr. v. Gougar, 1065. 
 
 Michigan Ins. Co. v. Leavenworth, 1052. 
 
 Michigan State Bank v. Hammond, 989. 
 
 c. Hastings, 559, 989. 
 
 Michoud u. Girod, 881. 
 
 Middleport Woollen Mills v. Titus, 818. 
 
 Middlesex Freeholders v. New Bruns- 
 wick State Bank, 991. 
 
 Middlesex Railroad v. Boston, &c. Rail- 
 road, 1012. 
 
 Midland Railroad v. Hitchcock, 296. 
 
 Midland, &c. Ry. o. Johnson, 462, 704. 
 
 Milbourne v. Simpson, 391, 1152. 
 
 Milburn v. Salkeld, 42. 
 
 Mildmay's Case, 42, 124. 
 
 Miles 11. Cook, 1049. 
 
 V. Lefi, 298. 
 
 V. Lingerman, 942. 
 
 V. Ogden, 1109. 
 
 V. Roberts, 766. 
 
 V. Stevens, 587. 
 
 V. Williams (10 Mod. 160), 949. 
 
 V. Williams (1 P. Wms. 249, 10 
 
 Mod. 243), 1183. 
 
 Milks V. Rich, 1263. 
 
 Mill Dam Foundry v. Hovey, 133, 590, 
 1016. 
 
 Millar v. Taylor, 446. 
 
 Millard v. Baldwin, 1220. 
 
 V. Hathaway, 1331. 
 
 V. Hewlett, 937, 943. 
 
 Miller, In re, 237. 
 
 V. Brenham, 1409. 
 
 V. Br^^an, 408. 
 
 V. Chippewa, 705. 
 
 V. Cook, 478. 
 
 V. Craig, 963. 
 
 V. Fenton, 216. 
 
 V. Fletcher, 357. 
 
 V. Gardner, 62, 697. 
 
 V. Gilleland, 752. 
 
 658 
 
 Miller v. Goddard, 838. 
 
 !7. Goodwin, 1269. 
 
 V. Hemler, 134, 851. 
 
 y. Hemphill, 130. 
 
 V. Howell, 668. 
 
 V. Kendig, 390. 
 
 V. Kirby, 1210. 
 
 V. Life Ins. Co., 797. 
 
 V. Lynch, 542. 
 
 V. McClain, 1436. 
 
 V. McKenzie, 87. 
 
 V. McManis, 286, 1235. 
 
 i>. Mann, 390. 
 
 • u. Miller, 718, 719, 723, 725. 
 
 V. Moore, 1104. 
 
 V. Mutual Benefit Ins. Co., 661. 
 
 V. Noonan, 1191. 
 
 V. Phillips, 592, 826, 828. 
 
 V. Sacramento, 1225. 
 
 !,■. Sims, 943. 
 
 V. Smith, 921, 938, 942. 
 
 u. Springer, 298. 
 
 u. State, 1299, 1300. 
 
 V. Superior Machine Co., 1016. 
 
 V. Tharel, 819. 
 
 V. Tiffany, 1388. 
 
 V. Watson, 133. ' 
 
 V. Woodward, 588. 
 
 Milliken v. Pratt, 1389. 
 Millison v. Nicholson, 958. 
 Mills V. Brown, 1265. 
 
 V. Comstock, 173. 
 
 V. Graham, 902. 
 
 V. Graves, 282. 
 
 V. Mills, 499. 
 
 e. Oddy, 812. 
 
 V. Riley, 815. 
 
 V. Williams, 538. 
 
 V. Wilson, 1389. 
 
 V. Wyman, 90. 
 
 Millward v. Littlewood, 580. 
 
 Milne's Appeal, 1354, 1356. 
 
 Milne v. Huber, 479. 
 
 Miltimore v. Chicago, &c. Railway, 596. 
 
 Milton V. Haden, 471. 
 
 V. Mosher, 1 1 52. 
 
 Milwaukee, &c. Railway v. Smith, 1391. 
 Miner v. Medbury, 686. 
 
 V. Tagert, 1121. 
 
 Mineral Point Railroad f. Barron, 1403. 
 Miners Ditch Co. v. Zellerbach, 1013, 
 
 1018. 
 Minnesota Oil v. Collier Lead, 328. 
 Minniece v. Jeter, 1409. 
 Minns ». Morse, 1238. 
 Minor v. Mechanics Bank, 1103. 
 Minturn v. Main, 1133, 1134. 
 Missisqnoi Bank v. Sabin, 76. 
 Mississippi, &c. Railroad v. Green, 594. 
 Mississippi, &c. Railway v. United States 
 
 Exp. Co , 1394. 
 
MON 
 
 INDEX TO THE CASES CITED. 
 
 MOR 
 
 Missroon v. Waldo, 244. 
 Mitchel ». Reynolds, 126, 515. 
 Mitchell V. Byrne, 354. 
 
 B. Dubose, 244. 
 
 V. Griffin, 1263. 
 
 V. Kingman, 971. 
 
 V. McDougall, 660. 
 
 V. Mitchell, 1330. 
 
 ». Printnp, 1029. 
 
 V. Reynolds, 121. 
 
 V. Ryan, 361. 
 
 V. Scott, 838. 
 
 V. Smith, 471. 
 
 V. Sproul, 1045. 
 
 V. Steward, 794. 
 
 Mitchinson v. Carter, 198. 
 
 ». Hewson, 906. 
 
 MithofFr. Byrne, 1076. 
 
 Mixer v. Howarth, 1316. 
 
 Mizell V. Burnett, 586, 608. 
 
 Moale V. Baltimore (56 Md. 496), 285. 
 
 V. Baltimore (61 Md. 224), 787. 
 
 Mobile Marine, &c, Co. v. McMillan, 168. 
 Mobile, &c. Railroad i'. Jones, 1263. 
 Mobile, &c. Railway v. Jay, 458. 
 
 r. Jurey, 372. 
 
 Modisett v. Lindley, 1151. 
 Moens ». Heyworth, 653. 
 Moffat V. Van Millingen, 29. 
 
 V. Winslow, 683. 
 
 Moffatt B. Van MuUingen, 883. 
 Moggridge u. Jones, 1423. 
 Mohawk Bank v. Atwater, 1211. 
 Mohney v. Evans, 911. 
 Mohr V. Tnlij), 975, 977. 
 Moirw. Hopkins, 1111. 
 Mold V. Wheatcroft, 301. 
 Moley V. Brine, 921. 
 MoUett !). Robinson, 1135. 
 
 V. Wackerbarth, 755. 
 
 Molton V. Camroux, 970. 
 Molyneux i;. Collier, 61. 
 Monaghan v. School District, 230. 
 Monocacy Bridge v. American Iron 
 
 Bridge Manuf. Co., 795. 
 Monroe v. Searcy, 1230. 
 Monroe Bank v. State, 501. 
 Monson v. Williams, 190. 
 Montague r. Garnett, 1236, 1283. 
 
 V. Weil, 319. 
 
 Monte Allegre, The, 243. 
 Montefiori v. Montefiori, 292. 
 Montelius v. Atherton, 172. 
 
 V. Wood, 71. 
 
 Montgomery v. American Emig. Co., 701. 
 
 V. Edwards, 1234. 
 
 V. Gibbs, 679. 
 
 V. Gordon, 903. 
 
 V. Lampton, 44, 99. 
 
 V, Morris, 768. 
 
 Montgomery Railroad v. Hurst, 755. 
 
 Montreal Assur. Co v. McGillivray, 1057. 
 Montross v. Roger Williams Ins., 1056. 
 Montville v. Haughton, 111, 707. 
 Mooar v. Covington City Bank, 1341. 
 Moody V. Leavitt, 132. 
 
 , State v., 146. 
 
 V. Thomas, 520. 
 
 Mooney, State v., 1436. 
 
 Moore's Case, 684. 
 
 Moore v. Abernathy, 925, 928. 
 
 V. Appleton, 216. 
 
 V. Bank of Columbia, 1359. 
 
 V. Bare, 833. 
 
 V. Beasley, 306. 
 
 V. Campbell, 771. 
 
 V. Clay, 686. 
 
 V. Clopton, 1383. 
 
 V. Dickerson, 1439. 
 
 V. Fox, 1274. 
 
 V. Greene Commissioners, 1354. 
 
 V. Griffin, 406. 
 
 u. Hall, 1054. 
 
 V. Hershey, 970, 974. 
 
 V. Hill, 299. 
 
 V. Hylton, 50. 
 
 V. Johnson, 305. 
 
 V. McKinlay, 244. 
 
 V. Moore (56 Cal. 89), 735. 
 
 V. Moore (38 N. H. 382), 1329. 
 
 V. Murdock, 538. 
 
 V. Nason, 838. 
 
 V. Platte, 1452. 
 
 1!. Robinson, 1062. 
 
 V. Rogers, 832. 
 
 V. Shelley, 1437. 
 
 V. Shenk, 815. 
 
 , State V. (Meigs, 476), 1205. 
 
 , State V. (74 Misso. 413), 593. 
 
 V. Thompson, 1095. 
 
 V. Trimble, 673. 
 
 V. Waddle, 1330. 
 
 t). Willamette Transp. &c., 1018. 
 
 Moore Commissioners v. MacRae, 1354. 
 Moores, People v., 918. 
 Morange v. Edwards, 1 330. 
 More V. Bonnet, 166, 487, 517. 
 
 V. Clymer, 536. 
 
 Moreau v. Edwards, 520. 
 Moreland v. Atchison, 664, 688. 
 
 V. Davidson, 219. 
 
 Morev v. Enke, 1436. 
 
 v. Homan, 383, 402. 
 
 Morgan, Ex parte, 274. 
 
 V. Bailey, 537. 
 
 V. Bain, 827. 
 
 V. Elam, 821. 
 
 i>. Elford, 740, 1121. 
 
 V. Hazlehurst Lodge, 360. 
 
 V. New Orleans Railroad, 1394. 
 
 t'. Perhanius, 520. 
 
 V. Railroad, 292, 296. 
 
 659 
 
MOS 
 
 INDEX TO THE CASES CITED. 
 
 MtJN 
 
 Morgan, State v., 415. 
 
 V. Stearns, 805. 
 
 , United States v., 443. 
 
 Morice v. Leigh, 357. 
 
 Morin V. Martz, 1 246. 
 
 Morley v. Attenborough, 243. 
 
 Morrell v. Quarles, 47, 500. 
 
 Morrill V. Colehour, 813. 
 
 V. Tehama Consolidated Mill, &c. 
 
 Co., 347. 
 Morris v. Clay, 971. 
 
 V. Colman, 516, 518. 
 
 «. Hall, 627. 
 
 V. Harris, 248. 
 
 W.Jones, 1151. 
 
 V. Litchfield, 887. 
 
 V. Morris, 217. 
 
 iJ. Nixon, 981. 
 
 w. Norfolk, 949. 
 
 o. Shannon, 270. 
 
 0. St. Paul, &c. Railway, 176. 
 
 V. Vanderen, 1352. 
 
 Morris Canal, &c. Co. w. Lewis, 1187. 
 
 V. Ryerson, 75. 
 
 Morris Commis'rs v. Hinchman, 1023. 
 Morris Run Coal Co. v. Barclay Coal 
 
 Co., 1383. 
 Morrison v. Baker, 1260. 
 
 V. Bowman, 1070. 
 
 V. Darling, 528. 
 
 V. Hogue, 1264. 
 
 V. Jones, 217. 
 
 V. Welty, 754. 
 
 Morrow v. Campbell, 592. 
 
 V. Higgins, 1096. 
 
 V. Robinson, 1351. 
 
 w. Starke, 870, 875. 
 
 Morse u. Bellows, 875. 
 
 0. Low, 82, 169. 
 
 V. Royal, 740. 
 
 V. Shattuck, 75. 
 
 V. Slason, 361. 
 
 V. Welton, 898. 
 
 Morse Twist Drill, &c. Co. b. Morse, 517. 
 Morss V. Salisbury, 382. 
 Mortlock V. Buller, 1049. 
 Morton v. Burn, 63. 
 
 V. Leland, 362. 
 
 V. Bainey, 223. 
 
 , Reg. v., 105. 
 
 V. Scull, 1112. 
 
 V. Steward', 908. 
 
 Morville v. American Tract Sec, 1013. 
 Mory V. Michael, 1215. 
 Moseley v. Mastin, 377. 
 Mosely v. Baker, 595. 
 
 V. Lane, 740. 
 
 V. Miller, 688. 
 
 Moser v. White, 556. 
 Moses V. Mead, 244. 
 Mosfen v. Touchet, 1460. 
 
 660 
 
 Mosher v. Griffin, 535. 
 
 Mosley v. Vermont Mut. Fire Ins., 385. 
 
 Moss V. Averell, 1006, 1009. 
 
 V. Green, 1 64. 
 
 V. Oakley, 1009. 
 
 V. Tribe, 970. 
 
 Mostyn v. Pabrigas, 311. 
 Motley V. Motley, 1121. 
 Mott V. Ackerman, 442. 
 
 V. Codilington, 1398. 
 
 V. Hicks, 1016. 
 
 V. Hurd, 1304. 
 
 Moulding v. Prussing, 179. 
 Moulton V. Egery, 316, 390. 
 
 V. Kershaw, 324. 
 
 V. McOwen, 801. 
 
 V. Trask, 838. 
 
 Mount Olivet Cemetery v. Shubert, 1 103. 
 
 Mountacue v. Maxwell, 1269. 
 
 Mountford v. Scott, 1028. 
 
 Mouse's Case, 593. 
 
 Mouton w. Noble, 75. 
 
 Mowatt V. Wright, 631, 632. 
 
 Mowbray v. State, 348. 
 
 Mower v. Kip, 1459. 
 
 Mowrey v. Walsh, 676.- 
 
 Mowry v. Adams, 864, 865. 
 
 Moxley v. Moxley, 323. 
 
 Moyce v. Newington, 672, 673. 
 
 Moye V. Herndon, 755. 
 
 Mud Creek Draining Co. v. State, 304. 
 
 Mulcahey v. Emig. Indus. Sav. Bank, 787. 
 
 MulhoUand v. Bartlett, 58. 
 
 MuUain v. Thomas, 164. 
 
 Mullaly V. Holden, 1239. 
 
 Mullens u. Miller, 1062. 
 
 MuUett V. Mason, 685. 
 
 Mulligan v. Bailey, 659. 
 
 V. Kenny, 1444. 
 
 MuUin V. Bloomer, 832. 
 Mulliner v. Bronson, 454. 
 
 V. Florence, 793. 
 
 MuUins V. McCandless, 658. 
 Mulock V. Mulock, 740. 
 Mulvey v. King, 662. 
 Mumford v. Mumford, 1 001 . 
 
 V. Whitney, 1299, 1300. 
 
 Munday v. Asprey, 1249. 
 Munden v. Brunswick, 998. 
 Mundorfft!. Kilbourn, 224. 
 Mundy v. Whittemore, 716, 727. 
 Munn V. Burch, 445, 449. 
 
 V. Commission Co., 1105. 
 
 Munro v. Merchant, 999. 
 Munroe v. Easton, 211. 
 
 V. Parkhurst, 274. 
 
 V. Perkins, 768. 
 
 Munsell v. Temple, 1182. 
 Munsey v. Butterfield, 520. 
 Munson v. Nichols, 647. 
 V, Osborn, 424. 
 
NAT 
 
 INDEX TO THE CASES CITED. 
 
 NEW 
 
 Mardock v. Anderson, 1249. 
 Murphy v. Jacksonville, 1005. 
 
 V. Johnson, 938. 
 
 V. Jones, 70, 614. 
 
 V. Mobile Branch Bank, 75. 
 
 V. Philadelphia Trust Co., 1351. 
 
 V. St. Louis, 1420. 
 
 V. United States, 56. 
 
 II. Welch, 1018. 
 
 Murray, In re, 1373. 
 
 V. Blackledge, 390. 
 
 V. Brooks, 451, 458, 1063. 
 
 V. Carlin, 984. 
 
 V. Coster, 1362. 
 
 V. Dake, 372, 709. 
 
 v. East India Co., 1013. 
 
 V. Gouvernenr, 1180. 
 
 V. Judah, 1218. 
 
 V. Lardner, 1187. 
 
 V. Mann, 296, 1112. 
 
 t'. Palmer, 45. 
 
 V. Shanklin, 937, 942. 
 
 V. Snow, 50. 
 
 Murry «. Sell, 1216. 
 
 Musselman v. Cravens, 889, 962, 966. 
 
 Musser v. Ferguson, 44. 
 
 Mussey t>. Scott, 1071. 
 
 Mustard v. Wohlford, 925. 
 
 Mutual Life Ins. Co. v. French, 797. 
 
 V. Hunt, 970. 
 
 V. Norris, 296. 
 
 Myer v. Cole, 237. 
 Myers v. Gross, 397, 400. 
 
 (,■. Hazzard, 1189. 
 
 r. Meinrath, 627. 
 
 V. Morse, 1265. 
 
 V. Sanders, 928. 
 
 V. Vanderbelt, 341. 
 
 Myles V. Wiliiams (Gilb. Cas. 318), 1183. 
 Myrick v. Dame, 875. 
 Myrover v. French, 352. 
 My ton v. Thurlow, 651 , 671. 
 Mytton 0. Gilbert, 274, 277. 
 
 Nagel V. Mignot, 757. 
 Naill V. Maurer, 1269. 
 Napier ». Catron, 1151. 
 Nash V. Birch, 616. 
 
 V. Fugate, 348. 
 
 V. Lull, 45. 
 
 V. Tovirne, 834. 
 
 Nashua Fire Ins. Co. v. Moore, 304. 
 Nashville v. Hagan, 995. 
 
 V. Toney, 1360. 
 
 Nason v. Grant, 821. 
 Natchez v. Minor, 815. 
 Nathans v. Arkwright, 942. 
 National Bank v. Smoot, 1388. 
 
 V. Trimble, 1354. 
 
 V. Watsontown Bank, 793. 
 
 National Bank of Metropolis v. Sprague, 
 528. 
 
 National Banking, &c. v. Knaup, 1016. 
 
 National Exch. Bank v. McLoon, 1194. 
 
 National Ir. Armor Co. v. Bruner, 1094. 
 
 National Life Ins. v. Minch, 1105, 1U4. 
 
 V. TuUidge, 795. 
 
 National Oil Ref. Co. v. Bush, 782. 
 
 National Trust Co. v. Miller, 1023. 
 
 Nations v. Cudd, 838. 
 
 Navarro, Succession of, 1132. 
 
 Nave V. Hadley, 1080. 
 
 V. Lebanon Bank, 426, 1083. 
 
 Neal V. Gilmore, 61. 
 
 V. Gregory, 673. 
 
 V. Sheaffield, 130. 
 
 Neale v. Hagthrop, 1198. 
 
 V. Utz, 1340. 
 
 Nealley v. Greenough, 720. 
 
 Nealon v. Henry, 671, 675, 680. 
 
 Neate v. Harding, 228. 
 
 Nebeker v, Cutsinger, 648. 
 
 Needles v. Shaffer, 751. 
 
 Neely v. Anderson, 656, 735, 964. 
 
 Neilley, In re, 1351. 
 
 Neilson v. Iowa Eastern Bailroad, 192. 
 
 Nellis V. Clark, 1203. 
 
 Nelson v. Aldridge, 1134. 
 
 — — V. Carrington, 784. 
 
 V. Claybrooke, 289. 
 
 V. Stocker, 902. 
 
 , United States v., 1 1 68. 
 
 V. Wood, 171. 
 
 Nerot V. Wallace, 579. 
 
 Nesbitt V. McGehee, 822. 
 
 V. Pearson, 1435. 
 
 Nettles V. South Carolina Bailroad, 432. 
 
 Nettleton v. Billings, 402. 
 
 V. Sikes, 1294. 
 
 Nevada v. Hicks, 1452. 
 
 Nevada Bank v. Bryan, 727, 729. 
 
 Nevitt V. Bank of Port Gibson, 657. 
 
 Nevius V. Dunlap, 702, 707. 
 
 New Albany, &c. Plank Eoad v. Lewis, 
 206, 1187. 
 
 New Athens v. Thomas, 1017, 1020. 
 
 New Brunswick, &c. Railway v. Cony- 
 beare, 665. 
 
 New England Iron Co. v. Gilbert Elev. 
 Kailroad, 840. 
 
 New Hampshire Bank v. WiUard, 382. 
 
 New Haven, &c. Co. v. Hayden, 1012. 
 
 New Jersey v. Wilson, 563. 
 
 New Jersey Steam Navigation Co. v. Mer- 
 chants Bank, 1080. 
 
 New Orleans v. Church of St. Louis, 837. 
 
 New Orleans, &c. R&ilr. v. Burke, HI. 
 
 V. Moye, 1292. 
 
 New York v. Dawson, 1398. 
 
 New York Central Ins. Co. v. National 
 Protection Ins. Co., 1041. 
 
 661 
 
NIC 
 
 INDEX TO THE CASES CITED. 
 
 NOT 
 
 Kew York Central, &c. Railroad v. 
 
 Metropolitan Gaslight Co., 573. 
 New York Mat. Life Ins. Co. v. Wilcox, 
 
 1169. 
 New Zealand, &c. Land Co. v. Watson, 
 
 1067. 
 Newberry v. Wall (84 N. Y. 576), 1245. 
 Newberry Bank v. Stegall, 487. 
 Newbery v. Wall (65 N. Y. 484), 1243, 
 
 1249. 
 Newburg Petroleum Co. v. Weare, 304. 
 Newcastle Pilots v. Bradley, 377. 
 Newcoinb v. Brackett, 1430. 
 Newcombe v. Beloe, 888. 
 Newell V. Borden, 1158. 
 
 V. Hill, 203. 
 
 V. Horn, 664, 685. 
 
 «. March, 81. 
 
 n. Smith, 1067. 
 
 Newhall v. Paige, 45. 
 
 0. Pierce, 173. 
 
 Newman v. Davenport, 740. 
 
 V. Mackin, 306. 
 
 V. Morris, 1316. 
 
 V. Nellis, 1234. 
 
 V. Newman (4 M. & S. 66), 392. 
 
 V. Newman (1 Stark. 101), 1351. 
 
 V. Reagan (63 Ga. 755), 1417. 
 
 V. Reagan (65 Ga. 512), 1416, 1417. 
 
 Newnan v. Carroll, 1292, 1331. 
 Newsom v. Thighen, 500. 
 Newton !.-. Carson, 63. 
 
 v. Hammond, 1354. 
 
 V. Jackson, 75. 
 
 V. Liddiard, 293. 
 
 V. Pope, 609. 
 
 V. State Bank, 1126. 
 
 V. Swazev, 1054. 
 
 V. Taylor, 1216. 
 
 V. Wales, 1436. 
 
 Niagara Fire Ins. Co. v. Greene, 1282. 
 Nibbe v. Brauhn, 795. 
 Niblett V. Herring, 1434, 1444. 
 Nichol V. Steger, 912. 
 
 V. Thomas, 975, 977. 
 
 Nichols V. Bunting, 497. 
 
 V, James, 1145. 
 
 V, Johnson, 753, 755. 
 
 V. Marsland (2 Ex. D. 1), 590. 
 
 V. Marsland (Law Rep. 10 Ex. 255), 
 
 593, 595. 
 
 «. Nowling, 216. 
 
 V. Pinner, 667. 
 
 V. Weaver, 1275. 
 
 Nicholson V. Caress, 399, 709. 
 
 V. Combs, 751. 
 
 V. Moog, 1100. 
 
 V. Wilborn, 912, 913. 
 
 Nickerson v. Babcock, 1439. 
 
 V. Howard, 1182. 
 
 V. Saunders, 1304. 
 
 662 
 
 Nickerson v. Swett, 754. 
 
 Nicol's Case, 654. 
 
 Nicolls V. McDonald, 173. 
 
 Niell V. Morley, 233, 964, 970, 972, 977. 
 
 Niemeyer v. Wright, 472. 
 
 Nightingales. Withington, 201, 898, 905, 
 921, 928. 
 
 Nilson V. Morse, 375. 
 
 Nine v. Starr, 44. 
 
 Nipp V. Diskey, 1436. 
 
 Nispel V. Laparle, 63. 
 
 Nixon V. Cobleigh, 343. 
 
 V. Downey, 1077. 
 
 V. Hyserott, 1094. 
 
 Noble V. Bellows, 1355. 
 
 I'. Edwardes, 1418. 
 
 V. James, 1421. 1434 
 
 V. Noble, 1203. 
 
 V. Ward, 771. 
 
 Nobleboro v. Clark, 1070. 
 
 Nobles V. Bates, 517. 
 
 Noel V. Drake, 524. 
 
 Nolte ?;. Hill, 455. 
 
 Nones v. Homer, 1280. 
 
 Norcross v. Norcross, 595. 
 
 Norman v. Thompson, 55. 
 
 Norris v. Fowler, 447, 458- 
 
 V. Lantz, 949. 
 
 V. Spofford, 376. 
 
 V. Wait, 903. 
 
 North V. Bloss, 632. 
 
 V. Forest, 1315. 
 
 u. Nichols, 187. 
 
 II. Phillips, 534. 
 
 V. Wakefield, 873. 
 
 North Providence v. Dyerville Manuf. 
 Co., 217. 
 
 Northampton Live-stock Ins. Co. v. 
 Tuttle, 1389. 
 
 Northern Kan. Town Co. v. Oswald, 120. 
 
 Northern Pac. Rail. v. United States, 385. 
 
 Northrup v. Phillips, 489. 
 
 Northumberland v. Cobleigh, 111. 
 
 V. Errington, 382. 
 
 Northwestern Mut. Fire Ins. Co. v. 
 Blankenship, 970, 974. 
 
 Northwestern Mut. Life Ins. Co. v. El- 
 liott, 1389. 
 
 Northwestern Ry. v. McMichael, 922. 
 
 Norton r. Blinn, 489. 
 
 V. Browne, 1421. 
 
 V. Colby, 95. 
 
 V. Sanders, 274. 
 
 V. Seymour, 1149. 
 
 V. Shepard, 1360, 1361. 
 
 V. Sterling, 1409. 
 
 Norvelli). Walker, 111. 
 
 Norwich r. Berry, 1125. 
 
 Norwich University v. Denny, 1067. 
 
 Nostrand v. Atwood, 1209. 
 
 Nott u. Johnson, 76. 
 
OHI 
 
 INDEX TO THE CASES CITED. 
 
 OSM 
 
 Nourse v. Pope, 471. 
 Noyes!). Hall, 1360. 
 
 V. Humphreys, 1261. 
 
 V. Nichols, 379. 
 
 , State v., 573. 
 
 Nudd V. Montanye, 307. 
 Nugent V. Hickey, 1077. 
 
 V. Riley, 203. 
 
 Nunn V. Fabian, 1237. 
 
 V. Goodlett, 443. 
 
 Nunnally v. White, "6. 
 Nunnery v. Cotton, 755. 
 Nutting V. Dickinson, 1304. 
 
 V. McCutcheon, 1234. 
 
 Nye V. Lowry, 345. 
 
 Oakes v. Turquand, 659, 671, 679, 680. 
 
 Oakley v. Morton, 586. 
 
 Oakman v. Rogers, 1249. 
 
 Gates V. Hudson, 722. 
 
 Oatfield v. Waring, 92. 
 
 O'Bannon v. Reli, 805. 
 
 Ober V. Carson, 444, 452. 
 
 , State v., 310. 
 
 Obert V. Hammel, 121, 881. 
 Obrian v. Ram, 949. 
 O'Brien v. Wetherell, 284. 
 
 V. Young, 556. 
 
 Occum Co. V. Sprague Manuf. Co., 1008. 
 Ocean Beach Assoc, v. Brinley, 444. 
 Ocean S. S. Co. v. McAlpin, 456. 
 O'Conner ;;. Rempt, 734. 
 
 V. Ward, 1207. 
 
 O'Connor v. Dingley, 1437. 
 
 r. Towns, 1343. 
 
 Odell V. Buck, 963. 
 
 B. Montross, 1 73. 
 
 Oden V. Elliott, 211. 
 
 , State v., 353. 
 
 Odineal v. Barry, 45, 473, .500. 
 
 Odiome v. Maxcy, 1092. 
 
 O'Donald v. Constant, 667, 683, 1209. 
 
 O'Donnell v. Leeman, 1249, 1344. 
 
 Odwin V. Torbes, 1401. 
 
 Oelrichs v. Ford, 1080. 
 
 Ogden V. Maxwell, 725. 
 
 — V. Ogden (1 Bland, 284), 1270, 1271. 
 
 V. Ogden (4 Ohio State, 182), 358. 
 
 V. Raymond, 1078, 1119. 
 
 V. Redd, 96. 
 
 V. Sannders, 566. 
 
 Ogdensburgh, &c. Railroad v. Vermont, 
 
 &c. Railroad, 793. ^ 
 
 Ogilview. Foljambe, 1244. 
 Ogle V. Atkinson, 307. 
 
 V. Graham, 755. 
 
 O'Hara v. Wells, 246, 1416. 
 Ohio Falls Car Co. v. Menzies, 782. 
 Ohio Life Ins. &c. Co. v. Debolt, 563. 
 Ohio, &c. Railway v. Yohe, 607. 
 
 O'Kelly V. Williams, 439. 
 
 Old Dominion bank v. McVeigh, 567. 
 
 Oldershaw v. King, 63. 
 
 Oldham v. Wilmington Bank, 711. 
 
 Olive V. Lewis, 1258. 
 
 Oliver v. Brown, 383. 
 
 V. Houdlet, 905, 917, 929, 936. 
 
 V. McClellan, 921. 
 
 V. Moore, 1140. 
 
 V. Woodroffe, 930. 
 
 Olmstead v. Beale, 835. 
 
 V. Niles, 1294. 
 
 Olney v. Wickes, 994. 
 Omohundro v. Omohundro, 1437. 
 O'Mulcahy v. Holley, 296. 
 Onderdonk v. Lord, 1292. 
 O'Neal V. Brown, 352. 
 
 V. Duncan, 274. 
 
 O'Neil V. Grain, 1249. 
 Openheimer v. Levy, 999. 
 O'Rear v. Kiger, 498. 
 
 Oregon Steam Nav. Co. v. Winsor, 513, 
 
 515, 517. 
 Oregon, &c. Trust Co. ». Rathbun, 1391, 
 
 1393. 
 Oregonian Railway i: Wright, 167. 
 O'Reilly v. Cleary, 502. 
 Organ, People v., 1168. 
 Ormerod v. Dearman, 493. 
 Ormes v. Beadel, 728. 
 
 V. Dauchy, 392, 1387. 
 
 Ormsbee v. Howe, 674. 
 Ormston's Case, 1184. 
 Orr V. Amorj', 1179. 
 
 V. Hodgson, 999. 
 
 V. Williams, 1436. 
 
 Ortega, United States v., 998. 
 Ortmann v. Monroe Bank, 356. 
 Orvis V. Kimball, 937, 943. 
 Osbaldeston v. Simpson, 492. 
 Osborn v. Bank of United States, 1127. 
 
 V. Elder, 290. 
 
 V. Farwell, 402. 
 
 V. Guy's Hospital, 224. 
 
 V. Phelps, 1235, 1237. 
 
 V. Robbins, 721, 727, 728. 
 
 Osborne v. Endicott, 274. 
 
 V. Farmers Loan, &c. Co., 1266. 
 
 V. Flood, 795. 
 
 V. Kerr, 994. 
 
 V. Tunis, 992, 1014, 1016. 
 
 V. Van Houten, 751. 
 
 V. Williams, 489. 
 
 Osbourne, Rex v., 377. 
 Oscanyan v. Ai-ras Co., 526. 
 Osgood V. Artt, 1409. 
 — — V. Bringolf, 75. 
 
 u. Franklin, 45. 
 
 Oshkosh V. State, 286. 
 Osier v. Hobbs, 210. 
 Osmond w. Fitzroy, 964. 
 
 663 
 
PAI 
 
 INDEX TO THE CASES CITED. 
 
 PAK 
 
 Osmond v. Flournoy, 1398. 
 Ossipee v. Grant, 1358. 
 Osterhout v. Shoemaker, 963. 
 Ostrander v. Hasbrouck, 274. 
 Oswald V. Legh, 1351. 
 
 V. McGehee, 688. 
 
 Otis V. CuUam, 1187. 
 
 V. Spencer, 351. 
 
 Ott V. Garland, 70. 
 Ottawa V. Carey, 1013. 
 
 V. National Bank, 274. 
 
 Ottenheimer v. Cook, 705. 
 Otterid^e v. Thompson, 1000. 
 Otto V. Doty, 361. 
 Oughton V. Seppings, 186. 
 Cutwater v. Dodge (7 Cow. 85), 1319. 
 
 V. Dodge (6 Wend. 397), 1319. 
 
 Overton v. Banister, 50. 
 
 V. Bolton, 1389. 
 
 Owen V. Bartholomew, 266. 
 
 «. Brockschmidt, 1064. 
 
 V. Estes, 1292. 
 
 V. Field, 1300. 
 
 «. Long, 929, 933. 
 
 V. Perry, 1169. 
 
 Owens V. Collinson, 216. 
 
 V. Lewis, 1294. 
 
 V. Ranstead, 1126. 
 
 V. Sprigg, 877. 
 
 Owings's Case, 656, 735, 958, 964. 
 Owings V. Hull, 848, 1225. 
 Owsley V. Woolhopter, 1109, 1226. 
 Oxford K. Columbia, 1365. 
 
 V. Peter, 1112. 
 
 Oxford Iron Co. v. Spradley (46 Ala. 
 98), 472, 1013. 
 
 V. Spradley (51 Ala. 171), 472,5,'i5. 
 
 Oxley V. Tryon, 932. 
 
 Pacific Guano Co. v. Mullen, 472. 
 Pacific Iron Works v. Newhall, 168. 
 Pacific Railroad v. Seely, 1013. 
 Packard v. Taylor, 596. 
 Packer v. Gibbins, 598. 
 Packet Co. v. Sickles, 1274. 
 Paddleford v. Thacher, 50. 
 Paddock v. Robinson, 580. 
 Page V. Becker, 60. 
 
 i;. Cole, 377. 
 
 V. Morgan, 1319. 
 
 V. Morse, 921. 
 
 V. Parker, 1202. 
 
 V. Sheffield, 167. 
 
 V. Trufant, 119. 
 
 ■ V. Wells, 246, 1416. 
 
 V. Weymouth, 1342. 
 
 Paget V. Marshall, 701, 703. 
 Paige V. Fnllerton Woolen Co., 342. 
 Paige, &c. Lumber Co., In re, 1382. 
 Paine v. Howells, 452. 
 
 Paine v. Upton, 711. 
 
 Palfrey v. Portland, &c Railroad, 70. 
 
 Palmer v. Albee, 316, 390. 
 
 V. Gillespie, 1362. 
 
 V. Green, 822. 
 
 V. Largent, 346, 751. 
 
 V. Palmer, 351, 352, 355. 
 
 V. Smith, 285. 
 
 V. Stephens, 343, 1120. 
 
 V. Stockwell, 795. 
 
 V. Yarrington, 12, 1383. 
 
 Palmerton v. Huxfbrd, 56. 
 Pancoast v. Addison, 1352. 
 
 V. Travellers Ins. Co., 286, 1388. 
 
 Pannell v. Mill, 383. 
 Papin V. Goodrich, 830. 
 Paradine v. Jane, 590, 598. 
 I'arcell v. McComber, 1445. 
 Paiham v. Pulliam, 1388. 
 Paris V. Hiram, 1338. 
 
 V. Strong, 1275. 
 
 Parish v. Scott, 709. 
 Park V. Glover, 755. 
 
 V. Kitchen, 839. 
 
 Park Bank v. Watson, 674. 
 Parke v. Leewright, 1237. 
 Parker v. Barker, 1258. 
 
 V. Carter, 1261. 
 
 V. Davis, 977. 
 
 V. Elder, 921. 
 
 V. Enslow, 57. 
 
 V. Kane (22 How. TJ. S. 1), 821. 
 
 V. Kane (4 Wis. 1), 821. 
 
 V. Kett, 1092. 
 
 V. Lincoln, 202. 
 
 V. McAllister, 105. 
 
 V. Marquis, 660, 678, 685. 
 
 V. Nanson, 306. 
 
 «. Nichols, 42, 124. 
 
 V. Parker, 351. 
 
 V. Pettit, 390. 
 
 0. Pitts, 543. 
 
 V. Piatt, 1416, 1417, 1421. 
 
 V. Ramsbottom, 130, 132. 
 
 t: Rennaday, 115. 
 
 V. School District, 1417. 
 
 V. Shuford, 1360. 
 
 V. Smith, 249. 
 
 !). Staniland, 1296. 
 
 i;. Steed, 1445. 
 
 V. Winlow, 591. 
 
 Parker Vein Coal Co. v. O'Hern, 1431 . 
 Parkhurst v. Gloucester Mutual Fishing 
 Ins. Co., 433. 
 
 V. Hosford, 736. 
 
 V. Smith, 417. 
 
 y. Van Cortlandt, 1249. 
 
 Parkin v. RadclifEe, 446. 
 Parkinson v. Wentworth, iOOO. 
 Parmele v. McGinty, 942. 
 Parmelee v. Lawrence, 873. 
 
 664 
 
PAY 
 
 INDEX TO THE CASES CITED. 
 
 PEN 
 
 Parmelee v. Thompson, 62. 
 
 Parmer v. Respass, 1070. 
 
 Parmlee v. Adolph, 661, 680, 681, 832. 
 
 Parmly v. Buckley, 816. 
 
 Parr v. Greenbush, 885, 1018. 
 
 Parris o. Cobb, 958, 964. 
 
 Parry u. Dale, 1170. 
 
 Parsell v. Stryker, 224. 
 
 Parshall v. Shirts, 821. 
 
 Parsons v. Dickinson, 1309. 
 
 V. Hill, 925. 
 
 V. Keys, 188, 234. 
 
 V. Loucks, 153, 1316. 
 
 V. Phelan, 1303. 
 
 Partee v. Silliman, 1397, 1403. 
 Partridge v. Havens, 194. 
 
 V. Jones, 1 1 6. 
 
 Pasco V. Smith, 1059. 
 
 Patch V. Phoenix, &c. Ins. Co., 165. 
 
 V. Wheatland, 1149. 
 
 Patchin v. Cromach, 148, 925. 
 
 V. Swift, 75. 
 
 Pate V. Wright, 542. 
 
 Paterson v. Gandasequi, 1079, 1085. 
 
 Patmor v. Haggard, 1230, 1247. 
 
 Paton V. Rogers, 1347. 
 
 Patrick v. Milner, 1348. 
 
 V. Putnam, 835. 
 
 Pattee i'. Greely, 537. 
 Patterson ». Ackerson, 1092. 
 
 V. Campbell, 1208. 
 
 V. Carrel), 1389. 
 
 V. Cox, 630. 
 
 V. Cunningham, 1304. 
 
 V. Donner, 496. 
 
 V. Kirkland, 664. 
 
 V. Snell, 361. 
 
 V. Underwood, 1249. 
 
 V. Yeaton, 1237. 
 
 Pattinson v. Luckley, 748, 754. 
 Pattison's Appeal, 1 294. 
 Pattison v- Shaw, 989. 
 Patton V Ashley, 51. 
 
 V. Brittain, 1098. 
 
 V. Campbell, 673. 
 
 Paul V. Edwards, 1067. 
 
 V. Hummel, 900. 
 
 V. Meservey, 81 6. 
 
 Pauley ». Weisa'rt, 176. 
 Pavey v. Burch, 404. 
 Pawlet V. Clark, 555, 563. 
 
 V. Sandgate, 190, 205. 
 
 Paxson V. Hewson, 56. 
 Paxtou V. Popham, 121. 
 
 V. Wood, 50, 819. 
 
 Payler j;. Homersham, 51, 382, 407, 856. 
 Payne v. Burnham, 284. 
 
 V. Cave, 318. 
 
 V. Eden, 495. 
 
 V. Mattox, 1437. 
 
 V. Powell, 82. 
 
 Payne v. Smith, 665. 
 
 V. Wilson, 63. 
 
 Peabody v. Rice, 156. 
 
 V. Tarbell, 194. 
 
 Peachy v. Somerset, 1457. 
 Peacock v. Monk, 75, 124. 
 
 V. Terry, 185. 
 
 Peak V. Buck, 1357. 
 Pearce v. Brooks, 59, 506. 
 
 V. Wilkins, 1145. 
 
 Pearl v. Hansborough, 1383, 1387. 
 
 V. McDowell, 232. 
 
 Pearse v. Morrice, 616. 
 
 PearsoU v. Chapin, 611, 613, 614, 616, 
 
 617, 671, 846. 
 Pearson v. Lord, 632. 
 
 V. Pearson (27 Ch. D. 145), 520. 
 
 V. Pearson (7 Johns. 26), 82. 
 
 V. Skelton, 216. 
 
 V. Thomason, 50. 
 
 Pease, Commonwealth v., 492. 
 Peaslee v. Barney,' 11 98. 
 
 V. Robbins, 959. 
 
 Peck V. Briggs, 535. 
 
 V. Burr, 471. 
 
 V. Goodwin, 359. 
 
 V. Hubbard, 1436. 
 
 Peckham v. Hendren, 720. 
 Peddle v. Brown, 885. 
 Pedley, Rex v., 11. 
 Pedrick v. Post, 1347. 
 Peelman v. Peelman, 768. 
 Pegram v. Williams, 1409. 
 Peigne v. SutclifFe, 901. 
 Peirce v. Burroughs, 30. 
 
 V. United States, 988. 
 
 Pejepscut Proprietors, Com'th v., 310. 
 Pelham v. State, 22. 
 Pellow, Ex parte (McClel. Ill), 147. 
 Pellow, In re (13 Price, 299), 147. 
 Pemberton v. Oakes, 862. 
 
 V. Staples, 689. 
 
 Pence w. Arbuckle, 284, 1169. 
 
 V. Langdon, 832. 
 
 Pendergrast v, Foley, 1358. 
 Penfield v. Skinner, 1159. 
 Penfold V. Universal Life Ins. Co., 397. 
 Penn v. Bennet, 96. 
 
 V. Hamlett, 1167, 1168. 
 
 Penn Mut. Life Ins. Co. v. Crane, 651. 
 Penniman's Case, 571, 572. 
 Penniman v. Pierson, 244. 
 Pennington v. Plock, 390. 
 
 V. Gittings, 42, 124. 
 
 Pennsylvania Coal Co. v. Blake, 63. 
 Pennsylvania Fire Ins. Co. v. Dougherty, 
 
 797. 
 Pennsylvania Ins. Co. v. Dovey, 1 1 68. 
 Pennsylvania Railroad's Appeal, 1022. 
 Pennsylvania Railroad v. ReiChert, 1452. 
 Penobscot Boom Corp. v. Lamson, 1127. 
 
 665 
 
PET 
 
 INDEX TO THE CASES CITED. 
 
 PIE 
 
 Pen rod v. Morrison, 1202. 
 Penrose v. Curren, 901. 
 Peoria v. Gordon, 1356. 
 Pepper v. Harris, 316. 
 
 , State v., 266. 
 
 Pequawket Bridge v. Mathes (8 N. H. 
 
 139), 75.5. 
 Pequawkett Bridge v. Mathes (7 N. H. 
 
 230), 345. 
 Peques v. Mosby, 401. 
 Percy, In re, 1125. 
 Peries v. Aycinena, 1053. 
 Perkins v. Clay, 516. 
 
 V. Cummings, 74. 
 
 V. Hoyt, 68. 
 
 V, Jones, 542. 
 
 V. Jordan, 449. 
 
 V. Ladd, 236. 
 
 V. Littlefield, 1265. 
 
 V. Lockwood, 55. 
 
 V. Lyman (9 Mass. .522), 517. 
 
 V. Lyman (11 Mass. 76), 1459. 
 
 V. Missouri, &c. Railroad, 1226. 
 
 V. Wright, 923. 
 
 Perley v. Balch, 679. 
 
 «. Catlin, 642, 1 1 12. 
 
 V. Little, 1362. 
 
 V. Spring, 1265. 
 
 Perrin v. Broadwell, 178. 
 
 Perrine v. Cooley (10 Vroom, 449), 1249, 
 
 V. Cooley (13 Vroom, 623), 1063. 
 
 Perry v. Buckman, 73, 768. 
 
 V. Clymore, 130. 
 
 V. IIoU, 409. 
 
 «. Mulligan, 1109. 
 
 V. Price, 42. 
 
 0. Provident Life Ins. Co., 1343. 
 
 V. Smith, 1436. 
 
 w. Watts, 787. 
 
 a. Wheeler, 1433. 
 
 V. Wilson, 573. 
 
 Ferryman's Case, 359, 360. 
 Persch v. Quiggle, 64. 
 Person v. Chase, 932. 
 
 , State v., 560. 
 
 Peru V. French, 321. 
 
 V. Weguelin, 998, 
 
 Petchell V. Hopkins, 1409. 
 Peter v. Wright, 358, 670. 
 Peters v. Fleming, 909, 
 
 V. Westborough, 1274. 
 
 Peterson, In re, 1125, 
 
 Peterson «. Christensen, 472, 473. 
 
 V. Haffner, 901, 
 
 1). Laik, 942. 
 
 V. Mulford, 1208. 
 
 Petrie v. Nuttall, 267. 
 
 V. Pennsylvania Railroad, 1099. 
 
 V. Wright, 1016, 1020. 
 
 Pettibone v. Roberts, 71, 75. 
 Pettigrew v. Dobbelnar, 376. 
 
 666 
 
 Pettit V. Braden, 1260. 
 
 Pew V. Gloucester National Bank, 222. 
 
 Pharaoh v. Lush, 376. 
 
 Phelont). Stiles, 1112. 
 
 Phelps V. Bostvfick, 397. 
 
 V. Decker, 1394, 1395. 
 
 V. Dolan, 156. 
 
 V. Pond, 82. 
 
 w. Quinn, 244. 
 
 V. Seely, 135. 
 
 V. Whitaker, 175. 
 
 V. Zuschlag, 721. 
 
 Phenix Ins. Co. v. Pindley, 285. 
 Pheteplace v. Eastman, 226. 
 Philadelphia Loan Co, v. Towner, 1374. 
 Philadelphia, &c. Railr, v. Lehman, 541. 
 Philadelphia, &c. Railway's Appeal, 573. 
 Philbrick v. Philbrick, 572. 
 Philbrook v. Belknap, 1230, 1235, 1238. 
 Philips V. Philips, 1362. 
 Philleo V. Sanford, 432. 
 Phillip V. Aurora Lodge, 1102. 
 Phillips V. Allan, 1401. 
 
 c. Alleghenv Car Co., 1436. 
 
 V. CofFee, 1016. 
 
 V. Evre, 1401. 
 
 V. Green (3 A, K. Mar, 7), 937. 
 
 V. Green (5 T. B. Monr, 344), 937, 
 
 942. 
 
 V. Hollister, 698. 
 
 V. Hornsby, 1062. 
 
 i: Howell, 1050, 
 
 V. Im Thurn, 284. 
 
 V. Porter, 386. 
 
 V. Preston, 76, 167. 
 
 u. Thompson, 1292. 
 
 Phillips Academy v. King, 1008. 
 Philpot V. Bingham, 895, 917. 
 
 V. Gruninger, 37, 60. 
 
 Phinney v. Baldwin, 1378. 
 Phipps V. McFarlane, 1316. 
 
 V. Tanner, 383, 
 
 Phoenix v. Dey, 1209. 
 
 Phoenix Bessemer Steel Co., In re, 828. 
 
 Phoenix Ins, v. Continental Ins,, 1452. 
 
 V. Lansing, 797. 
 
 V. McLoon, 285. 
 
 Phoenix Mut, Life Ins Co, v. Doster, 797 
 Phosphate of Lime Co, v. Green, 1225. 
 Picard v. McCormick, 177. 
 Pickard v. Sears, 284. 
 Pickens v. Rymer, 111. 
 Pickering v. Busk, 1062, 1103. 
 
 V. Cease, 534. 
 
 Pickett B. Sutter, 981. 
 Picton V. Graham, 697. 
 Pier V. George, 1182. 
 Pierce v. Blake, 1125. 
 
 V. Chipman, 1309. 
 
 V. Duncan, 827. 
 
 v. Fort, 173. 
 
POB 
 
 INDEX TO THE CASES CITED. 
 
 POW 
 
 Pierce ». Fuller, 517. 
 
 V. Gibson, 1321. 
 
 V. Hakes, 345. 
 
 V. Indseth, 111. 
 
 V. Johnson, 1076. 
 
 V. Jones, 55. 
 
 V. Kibbee, 488. 
 
 V. Kittredge, 157. 
 
 V. Paine, 1235. 
 
 I). Parker, 855. 
 
 V. Bichardson, 114. 
 
 V. Woodward, 516. 
 
 V. Wright, 127. 
 
 Piersol v. Grimes, 753. 
 Pierson v. Hooker, 856, 875, 1151. 
 Pigot's Case, 753, 755. 
 Pikei'. Bacon, 1151. 
 
 V. Balcli, 1038. 
 
 V. Galvin, 277. 
 
 V. King, 537. 
 
 Pillow V. Brown, 165. 
 
 Pinckard v. Pinckard, 1237. 
 
 Pine V. Huber Manuf. Co., 993, 994. 
 
 Pinnel's Case, 50-52, 54. 
 
 Pinney v. Fellows, 950. 
 
 V. Thompson, 168. 
 
 Pintard v. Bodle, 353. 
 
 Piper V, Kingsbury, 1422. 
 
 Pique K. Arendale, 121. 
 
 Pitcher v. Hennessey, 702, 703, 712. 
 
 V. Lavcock, 942. 
 
 V. Turin Plank Road, 921. 
 
 V. Wilson, 1280. 
 
 Pitkin V. Thompson, 906. 
 Pitman v. Poor, 1292. 
 Pitti). Gentle, 61. 
 
 V. Smith, 980. 
 
 Pittsburgh, &e. Eailroadr. Gazzam, 1225. 
 Pittsburgh, &c. Railway v. Barrett, 596. 
 Pixler V. Nichols, 835. 
 Pixley V. Boynton, 377, 534. 
 
 V. Gould, 525. 
 
 Plant V. Gnnn, 494, 720. 
 Planters Bank v. Cameron, 1105. 
 Planters, &c. Nat. Bank v. First Nat. 
 
 Bank, 1067. 
 Piatt u. Brown, 124. 
 
 v. Scott, 293. 
 
 Plowman v. Riddle, 1436. 
 Plumbe V. Carter, 478. 
 Plumer t'. Plumer, 306. 
 
 V. Smith, 492. 
 
 Plummer v. Bucknam, 835, 1236. 
 
 V. Farmers Bank, 295. 
 
 V. Mold, 296. 
 
 Plnnkettf. Dillon, 178. 
 
 V. Methodist Episc. Soc, 1454. 
 
 Plyler v. Elliott, 751, 756. 
 Poag V. Miller, 1198. 
 Poague V. Spriags, 53. 
 Poe v. Duck, 1402. 
 
 Poland V. Brownell, 664. 
 Pole V. Leask, 1049. 
 Polhemus v. Heiman, 405. 
 Polhill V. Walter, 1119, 1120. 
 Pollai-d V. Lyman, 72. 
 
 V. Maddox, 372. 
 
 Pollock V. Cohen, 1061, 1108, 1109. 
 
 V. Sullivan, 580. 
 
 Pomeroy v. Ainsworth, 1394, 1437. 
 
 Pomery v. Partington, 380. 
 
 Pond V. Williams, 874. 
 
 Pontida, The, 1060. 
 
 Pontifex v. Midland Railway, 185. 
 
 Ponton V. Griffin, 155. 
 
 Pool V. Chase, 176. 
 
 Poole V. Tumbridge, 1344. 
 
 Pooley V. Driver, 342. 
 
 Pope V. Albion Bank, 1103. 
 
 V. Andrews, 1362. 
 
 V. Henry, 277. 
 
 V. Linn, 542. 
 
 V. Machias, &c. Co., 376. 
 
 Poplett V. Stockdale, 471, 508. 
 Popplein V. Foley, 372, 707. 
 Pordage v. Cole, 401, 1320, 1423. 
 Port V. Russell, 1022. 
 Porter v. Androscoggin, &c. Eailr., 1016. 
 
 V. Bullard, 155. 
 
 V. Doby, 755. 
 
 V. Drennan, 1239. 
 
 V. Gorman, 520. 
 
 V. Hill (4 Greenl. 41), 1362. 
 
 V. Hills (114 Mass. 106), 444, 452. 
 
 I'. Jones, 59, 496. 
 
 V. Perkins, 855. 
 
 V. Read, 394. 
 
 V. Stewart, 805. 
 
 Portland Bank v. Maine Bank, 1340. 
 Posey u. Bullitt, 1151. 
 
 V. Scales, 1436. 
 
 Posten V. Rassette, 1051. 
 Potez V. Glossop, 178. 
 Pott u. Turner, 1135. 
 Pottenger v. Steuart, 930. 
 Potter V. Brown, 1401 . 
 
 V. Carpenter, 220. 
 
 V. Duffield, 1249. 
 
 v. Earnest, 73. 
 
 V. Potter, 708. 
 
 V. Sanders, 328. 
 
 V. Titcomb, 679. 
 
 V. Tuttle, 1347. 
 
 V. Van Vranken, 1198. 
 
 Potts V. Bell, 1000. 
 
 V. Merrit, 1238, 1269. 
 
 Pounds V. Richards, 296. 
 Poussard v. Spiers, 600, 608. 
 Pow u. Davis, 1120. 
 Powell V. Blackett, 345. 
 
 V. Bradlee, 667. 
 
 17. Divett, 751. 
 
 667 
 
PKI 
 
 INDEX TO THE CASES CITED. 
 
 BAI 
 
 Powell V. Duff, 1168. 
 
 V. Finch, 1078. 
 
 V. Graham, 860. 
 
 !,'. Hopson, 862. 
 
 V. Inman, 527. 
 
 V. Simmons, 827. 
 
 V. Smith, 214. 
 
 V. Subers, 71. 
 
 Power V. Kane, 449. 
 Powers V. Benedict, 683. 
 
 V. Clarkson, 1298. 
 
 V. Hale, 45. 
 
 V. Skinner, 499. 
 
 V. Wilson, 1445. 
 
 Prather v. Harlan, 544. 
 
 V. Vineyard, 1265. 
 
 Pratt V. Adams, 1388. 
 
 V. Beaupre, 1077. 
 
 V. Canton Cotton Co., 372, 1420. 
 
 V. Law, 1434, 1444. 
 
 0. Philbrook, 783, 826, 829. 
 
 V. Phillips, 277. 
 
 I!. Pratt, 397. 
 
 V. Putnam, 1328. 
 
 u. Wright, 1269. 
 
 Pray v. Pierce, 391. 
 
 Preachers Aid Soc. u. England, 1215. 
 
 Preble v. Baldwin, 1304. 
 
 V. Bottom, 828. 
 
 Prentiss v. Savage, 1402. 
 Presbury v. Morris, 245. 
 Presbyterian Society v. Staples, 1264. 
 Preston v. Brown, 300. 
 
 V. Dunham, 244. 
 
 V. Pinney, 1444. 
 
 V. Hull, 1167-1169. 
 
 V. Luck, 324. 
 
 «. Mann, 295, 296. 
 
 V. Williams, 709, 710. 
 
 Pretlow V. Bailey, 567. 
 Prettyraan v. Goodrich, 765. 
 Prewitt w. Garrett, 486. 
 Price V. Alexander, 1151. 
 
 V. Barker, 873. 
 
 !.•. Caperton, 496, 499. 
 
 V. Easton, 1181. 
 
 V. Evans, 372. 
 
 0. Green, 517. 
 
 V. Griffith, 390. 
 
 V. Hartshorn (44 Barb. 655), 432. 
 
 V. Hartshorn (44 N. Y. 94), 593. 
 
 V. Hewett, 902. 
 
 V. Moulton, 129. 
 
 V. Neal, 700. 
 
 V. Nixon, 787. 
 
 V. Pepper, 588. 
 
 V. Pittsburgh, &c. Railr., 356, 359. 
 
 V. Powell, 432. 
 
 V. Sanders (39 Ark. 306), 1433. 
 
 V. Sanders (60 Ind. 310), 911, 914. 
 
 V. Sturgis, 167, 1304. 
 
 668 
 
 Prichard v. Martin, 838. 
 
 V. Sharp, 720. 
 
 Pridgeon v. Greathouse, 1354. 
 Princeton, &c. Turnpike v. Gulick, 187. 
 Pringle v. Dunn, 1028. 
 
 V. Samuel, 664, 686. 
 
 Printing, &c. Co. v. Sampson, 473. 
 Printup V. Turner, 1151. 
 Prioleau v. United States, 998. 
 Prior V. Hembrow, 864. 
 Pritchard v. Norton, 1390, 1393. 
 Probart v. Knonth, 914. 
 Proctor V. Sears, 937, 943. 
 
 V. Thrall, 707. 
 
 Protection Life Ins. Co. v. Palmer, 1341. 
 
 Prout V. Lomer, 780. 
 
 Prouty V. Edgar, 918. 
 
 Providence Bank v. Billings, 559, 563. 
 
 Providence, &c. Bank v. Frost, 1389. 
 
 Providence County Sav. Bank v. Pha- 
 
 len, 306. 
 Prutsman v. Baker, 361. 
 Pryor v. Coulter, 1070. 
 Puckett V. Roquemore, 494. 
 Pueblo, &c. Railroad v. Taylor, 525. 
 Pugh V. Good, 1237. 
 
 V. Jenkins, 530. 
 
 V. Leeds, 1342. , 
 
 V. Mays, 782. 
 
 V. Pugh, 740. 
 
 PuUen V. Chase, 1437. 
 PuUerton v. Agnew, 487. 
 Pullman v. Corning, 805, 1418. 
 Pulsifer, In re, 1400. 
 Purdy V. Austin, 1362. 
 
 V. Philips, 1437. 
 
 Purinton v. Security Life Ins., &c. Co., 
 
 1070, 1089. 
 Pursley v. Hays, 940. 
 Putnam v. Westcott, 71. 
 Pym V. Campbell, 170. 
 
 Quackenboss v. Lansing, 404. 
 Qiiarles v. State, 530. 
 Quartermous v. Kennedy, 169. 
 Quelin v. Moisson, 1401. 
 Quick V. Ludborrow, 861. 
 
 V. Wheeler, 321, 325. 
 
 Quigley v. De Haas (1 Norris, Pa. 267), 
 426. 
 
 V. De Haas (2 Out. Pa. 292), 133. 
 
 Quincy v. Tilton, 820. 
 Quinnett v. Washington, 632, 725. 
 Quinney v. Denney, 362. 
 Quirk V. Thomas, 481. 
 
 Radford v. Westcott, 917. 
 Ragland v. Wood, 1436. 
 Railroad v. Durant, 1215. 
 
EEA 
 
 INDEX TO THE CA5ES CITED. 
 
 EETJ 
 
 Railroad v. Ellerman, 1012. 
 
 u. Lockwood, 596. 
 
 V. McClure, 568, 570. 
 
 V. Ralston, 525. 
 
 Rail ton v. Hodgson, 1120. 
 
 Rainbolt u. Eddy, 1175. 
 Raines v. Walker, 277. 
 
 Rainey v. Capps, 542. 
 
 Rainwater v. Durham, 909. 
 
 Raley o. Williams, 295. 
 
 Ralston v. Kohl, 838. 
 
 V. Lahee, 903. 
 
 Ramaley v. Leland, 347. 
 
 RamloU Thackoorseydass v. SoojnmnuU 
 DhondmuU, 531. 
 
 Ramsdale v. Horton, 699, 
 
 Ramsey v, Loomis, 709. 
 
 Randall v. Ghent, 124. 
 
 V. Sackett, 864, 865. 
 
 V. Smith, 451, 453. 
 
 V. Sweet, 914. 
 
 Randel v. Chesapeake & Delaware Ca- 
 nal, 384, 1152. 
 
 RandeU i: Trimen, 1 120. 
 
 Randle v. Harris, 486. 
 
 Randlet v. Herren, 834. 
 
 Randolph v. Jones, 500. 
 
 V. Middleton, 567. 
 
 V. New Jersey W. L. Railr., 709. 
 
 Ranken v. Patton, 743. 
 
 Rankin v. Potter, 433. 
 
 Rann v. Hughes, 25. 
 
 Ransier v. Vanorsdol, 758. 
 
 Ransom v. Stonington, &c. Bank, 1016. 
 
 Rapid, The, 1000. 
 
 Rapp V. Palmer, 1138. 
 
 Rathbon v. Budlong, 1078, 1119. 
 
 Rawlings v. Robson, 1082. 
 
 Rawlins v. Wickham, 684. 
 
 Rawls V. Deshler, 976. 
 
 Rawson v. Beach, 370. 
 
 V. Clark, 597, 1418. 
 
 V. Curtiss, 1094. 
 
 Ray, Commonwealth v., 343. 
 
 f. Haines, 921, 1445. 
 
 v. Mackin, 473. 
 
 V. Powers, 1161. 
 
 V. Tubbs, 916, 918. 
 
 V. Virgin, 689. 
 
 V. Young, 1235. 
 
 Raymond v. Bearnard, 836. 
 
 V. Crown and Eagle Mills, 1079. 
 
 V. Leavitt, 535. 
 
 V. Rhodes, 390. 
 
 V. Sellick, 67. 
 
 V. Smith, 63. 
 
 Raynoru. Wilson, 821. 
 
 Rea V. Owens, 50. 
 
 Read v. Leeard, 968. 
 
 V. Smith, 1022. 
 
 V. Young, 1179. 
 
 Reading v. Reading, 1357. 
 
 II. Traver, 176. 
 
 Ready v. Kearsley, 1329. 
 
 Reck V. Clap]5, 699. 
 
 Red River Bridge v. Clarksville, 573. 
 
 Reddick v. Gressman, 1434. 
 
 Rede v. Parr, 616. 
 
 Redgrave v. Hurd, 648, 655. 
 
 Redman v. Bellamy, 274. 
 
 Redmond v. Coffin, 1070. 
 
 Reed v. Ashburnham Railroad, 1099. 
 
 V. Batchelder, 925. 
 
 V. Boshears, 937, 943. 
 
 0. Bradley, 1016. 
 
 V. Dougan, 1121. 
 
 V. Gallaher, 1421. 
 
 V. Golden (26 Kan. 600), 828. 
 
 V. Golden (28 Kan. 632), 66. 
 
 V. Home Sav. Bank, 1018. 
 
 V. Kemp, 755. 
 
 V. Lammel, 382. 
 
 V. Latham, 1109. 
 
 V. McGrew, 132. 
 
 V. Marble, 1328. 
 
 V. Minell, 1358. 
 
 V. Peper Tobacco Wareh. Co., 501. 
 
 V. Reed, 173. 
 
 V. Roark, 341. 
 
 Rees V. Overbaugh, 753. 
 
 V. Smith, 1421. 
 
 Reese v. Medlock, 1226. 
 Reeves v. Butcher, 542. 
 
 V. Capper, 82. 
 
 i!. Topping, 402. 
 
 Regan v. Howe, 352. 
 Rehoboth v. Rehoboth, 1008. 
 Reid V. Davis, 828. 
 
 V. Edwards, 591. 
 
 V. Hibbard, 54, 1109. 
 
 V. Kenworthy, 1249. 
 
 V. Vauderheyden, 1214. 
 
 Reif V. Paige, 330. 
 Reilly v. Chouquette, 391. 
 Reinicker v. Smith, 981. 
 Reinskopf v. Rogge, 986. 
 Remick v. Butterfield, 881. 
 
 V. Sandford, 1319. 
 
 Remington v. Wright, 727. 
 Remington Paper Co. v. O'Dougherty, 
 
 178. 
 Renals v. Cowlishaw, 1191. 
 Renew v. Butler, 881. . 
 Reniger v. Pogossa, 121. 
 Renner i). Columbia Bank, 449. 
 Renshaw v. Lefferman, 702. 
 Rensselaer v. Whitlock, 942. 
 Eentch w. Long, 1316. 
 Renwick v. Bancroft, 1067. 
 Resh V. Allentown Bank, 645. 
 Resor v. Besor, 950. 
 Reuss V. Picksley, 342, 1246. 
 
 669 
 
RIO 
 
 INDEX TO THE CASES CITED. 
 
 BIT 
 
 Reuter v. Electric Telegraph, 1017. 
 Revere v. Boston Copper (Jo., 1022. 
 Reynell v. Sprye, 439. 
 Reynolds v. Burlington, &c. Railroad, 
 40, 807. 
 
 V. Cleveland, 1146. 
 
 V. Dechaums, 981. 
 
 V. Fenton, 185. 
 
 «. Ferree, 1061. 
 
 B. Hassam, 167, 172. 
 
 I'. McCurry, 942. 
 
 w. New Salem, 1089. 
 
 «. Nichols, 473. 
 
 V. Robinson, 224. 
 
 V. Stark, 1006. 
 
 Rhea a. White, 489. 
 
 0. Yoder, 670. 
 
 Rheem v. Snodgrass, 883. 
 Rhine v. Blake, 1061. 
 
 V. Ellen, 274. 
 
 Rhinelander «. Barrow, 1121. 
 
 Rhoades v. Castner, 755, 1249. 
 
 Rhoads v. Jones, 129. 
 
 Rhoda V. Annis, 651. 
 
 Rhode V. Louthain, 345, 1045, 1169. 
 
 Rhodes v. Bate, 740. 
 
 V. Neal, 493. 
 
 V. Otis, 1292. 
 
 y. Rhodes, 1 237. 
 
 «. Thomas, 766. 
 
 Rice V. Gordon, 740. 
 
 ('. McLarren, 1226. 
 
 V. Manley, 1324. 
 
 V. Maxwell, 495. 
 
 V. Feet, 71, 966, 971. 
 
 Rich V. Lord, 407, 856. 
 Richard w. Boiler, 111. 
 Richards v. Allen, 634. 
 
 ii. Betzer, 178. 
 
 V. Butler, 1148. 
 
 V. Fuller, 175. 
 
 V. Heather, 863. 
 
 V. Hunt, 1148. 
 
 V Richards, 1292, 1331. 
 
 Richardson v. Adams, 668. 
 
 V. Boright, 937. 
 
 V. Brown, 1388. 
 
 V. Chickering, 408. 
 
 V. Clow, 124. 
 
 V. Cooper, 766. 
 
 V. Crandall, 500. 
 
 V. Praper, 864, 865. 
 
 V. Duncan, 721. 
 
 V. Harvey, 306. 
 
 V. Kimball, 1117. 
 
 u. Marqueze, 1207. 
 
 V. Pate, 942. 
 
 V. Peacock, 520. 
 
 V. People, 414. 
 
 V. Pierce, 1276. 
 
 V. Robbing, 1259. 
 
 670 
 
 Richardson v. Shaw, 588. 
 
 V. Strong, 231, 232. 
 
 V. Tipton, 243. 
 
 V. Williams, 211, 768, 1258. 
 
 V. Williamson, 247. 
 
 Riche V. Ashbury Railway Carriage, &c. 
 
 Co., 1007. 
 Richie v. Bass, 1120. 
 Richmond v. Dubuque, &c. Railr., 284. 
 
 V. Moore, 536, 539. 
 
 V. Union Steamboat Co., 444. 
 
 Richmond Manuf. Co. v. Davis, 755. 
 Richmond, &c. Railr. v. Louisa R., 573. 
 
 i,-. Richmond, 1007. 
 
 , State v., 567. 
 
 Richmond Street Railr. v. Reed, 1061. 
 Richmond Trad., &c. Co. v. Farquar, 375. 
 Rickards v. Cunningham, 1324. 
 Ricketts v. Harvey, 493. 
 Rickey v. Hillman, 881. 
 Kicks V. Yates, 838. 
 Ridder v. Whitlock, 1121. 
 Riddle v. Brown, 1292, 1295. 
 
 V. Hall, 493. 
 
 V. RatlifF, 1230. 
 
 V. Varnum, 1309. 
 
 Ridenour v. Mayo, 1120. 
 Rider v. Powell, 687. 
 Ridgeway v. Toram, 190. 
 Ridgway v. Morrison, 282. 
 
 V. Wharton, 165, 319. 
 
 Ridgwell, Rex v., 394. 
 
 Ridley v. Ridley, 1279, 1284. 
 
 Rigg V. Cook, 277. 
 
 Riggan v. Green, 970. 
 
 Riggs V. American Tract Soc, 958, 963. 
 
 B. Fisk, 942. 
 
 B. Magruder, 1315. 
 
 B. Roberts, 1362. 
 
 Right of Employees, In re, 988. 
 Righter v. Roller, 652. 
 Rigs V. Cage, 1053. 
 Rigsbee u. Trees, 707. 
 Riley v. Farnsworth, 1249. 
 
 B. Jordan, 476. 
 
 V. Mallory, 921. 
 
 B. Schawacker, 674. 
 
 B. Taber, 1180. 
 
 RindskofF v. Barrett, 404, 449. 
 Rindskopf v. De Ruyter, 1389. 
 Ring V. Gibbs, 443. 
 
 B. Jamison, 465. 
 
 B. Kelly, 127. 
 
 Ringer v. Cann, 409. 
 Ringo V. Binns, 881. 
 Rippey b. Friede, 76. 
 Rippy B. Gant, 963. 
 Risley v. Smith, 1424. 
 Ritchie b. Smith, 507. 
 Ritter's Appeal, 982. 
 Ritter b. Stevenson, 1333. 
 
BOB 
 
 INDEX TO THE CASES CITED. 
 
 EOS 
 
 Kivard v. Walker, 352. 
 Kivers v. Gregg, 915. 
 
 V. Thayer, 1269. 
 
 Roach V. Gunter, 570. 
 
 V. Karr, 346. 
 
 V. Quick, 906. 
 
 Robards v. Brown, 565, 572. 
 Robb V. Halsey, 1374, 1388. 
 
 V. Ross County Bank, 1083. 
 
 V. Shephard, 299. 
 
 Robbins v. Ayres, 107, 129, 773. 
 
 V. Magee, 358, 709, 757. 
 
 V. Mount, 901, 930. 
 
 V. Potter, 768. 
 
 V. Robbins, 1216. 
 
 Robert v. Barnum, 50, 55. 
 Roberts v. Cocke, 439, 567. 
 
 V. Knights, 999. 
 
 V. Lund, 683, 1203. 
 
 V. McNeely, 1388. 
 
 V. Morgan, 96. 
 
 V. Roberts (2 B. & Aid. 367), 292, 
 
 683. 
 
 V. Roberts (3 P. Wms. 66), 511. 
 
 V. Rockbottom Co., 1281. 
 
 V. Rumley, 1109. 
 
 V. Wilkinson, 174, 1445. 
 
 Robertson v. Deatherage, 216. 
 
 V. Dunn, 1354. 
 
 V. French, 413. 
 
 V. Hay, 753. 
 
 i: Metropolitan Life Ins. Co., 800. 
 
 V. Paul, 1054. 
 
 V. Reed, 1179, 1220. 
 
 V. Robinson, 498. 
 
 V. Smith {18 Johns. 459), 871, 877. 
 
 V. Smith (11 Texas, 211), 737. 
 
 V. Walker, 705. 
 
 V. Wilson, 277. 
 
 II. Woodward, 1121. 
 
 Robinson v. Barrows, 479. 
 
 V. Bland, 487, 1390, 1393. 
 
 I). Bright, 825. 
 
 V. Bullock, 133, 134, 1421. 
 
 V. Chemical Nat. Bank, 1099. 
 
 B. Davison, 600. 
 
 V. Fiske, 397, 404. 
 
 V. Glass, 645. 
 
 r. Gould, 719, 727. 
 
 V. Green, 1132. 
 
 I'. Holt, 1205. 
 
 V. Mandell, 224. 
 
 V. Payne, 388. 
 
 !). Raynor, 835. 
 
 V. Reed, 751. 
 
 V. Robinson, 1161. 
 
 V. Skipworth, 676. 
 
 V. Walton, 1112. 
 
 V. Weeks, 908, 929, 937. 
 
 V. Williams, 1331. 
 
 Robinson Mach. Works v. Chandler, 322 
 
 Robinson Mach. Works v. Vorse, 1121. 
 
 Robison v. Robison, 624. 
 
 Robson V. Drummond, 1182. 
 
 Roby V. West, 471. 
 
 Roche V. UUnian, 1192. 
 
 Rochester Ins. Co. v. Martin, 282. 
 
 Rockcliffe v. Pearce, 812. 
 
 Rocket, The, 596. 
 
 Rockford, &c. Railr. v. Sage, 210, 221. 
 
 Rockhill V. Spraggs, 75. 
 
 Rockville Bank v. Lafayette Bank, 703. 
 
 Rockwell V. Brown, 37. 
 
 V. Humphrey, 372, 375. 
 
 Rockwood V. CoUamer, 1309. 
 
 V. Wiggin, 82. 
 
 Rodgers v. Bass, 504. 
 
 V. Jones, 1319. 
 
 V. Maw, 186. 
 
 Rodwell V. Phillips, 1294. 
 Roebuck v. Duprey, 248. 
 Rogers, Ex parte, 1125. 
 
 V. Adams, 728. 
 
 V. Allen, 439. 
 
 V. Atkinson, 707. 
 
 V. Blackwell, 970, 972, 976. 
 
 V. Bracken, 1070. 
 
 V. Brenton, 455. 
 
 V. Brightman, 1274. 
 
 V. Colt, 690. 
 
 V. Cruger, 918. 
 
 V. Danforth, 404. 
 
 V. Frost, 1070. 
 
 V. Hanson, 827. 
 
 V. Higgins, 949. 
 
 V. Hillhouse, 124. 
 
 V. Kichline, 1147. 
 
 V. Lockett, 881. 
 
 V. March, 1076, 1078. 
 
 V. Parham, 838. 
 
 V. Pavne, 130. 
 
 V. Price, 237, 888. 
 
 !'. Rogers, 821. 
 
 V. Shaw, 756. 
 
 V. Walsh, 70. 
 
 Rohrbach v. Germania Fire Ins. Co., 12 
 Rolker v. Great Western Ins. Co., 414. 
 Rollins V. Dyer, 176. 
 
 V. Marsh, 68. 
 
 V. Phelps, 1077, 1088. 
 
 RoUison V. Hope, 155. 
 Rolls V. Yate, 863. 
 Rommel v. Wingate, 323. 
 Rondeau v. Wyatt, 1313, 1316. 
 Roof K. Stafford, 930. 
 Rooke V. Kensington, 409. 
 Roosat). Crist, 1385. 
 Root V. French, 672, 673. 
 Rose V. Beattie, 244. 
 
 V. Daniel (3 Brev. 438), 936. 
 
 V. Daniels f8 R. I. 381), 50. 
 
 V. Himely, 998. 
 
 671 
 
KUP 
 
 INDEX TO THE CASE9 CITED. 
 
 SAL 
 
 ■ Rose V. Mitchell, 535. 
 Kosenblatt v. Townsley, 542. 
 Rosevear China Clay Co., Ex parte, 802. 
 Rosevelt v. Dale, 664. 
 
 V. Stackhouse, 857. 
 
 Ross V. Hardin, 217, 860. 
 
 V. Lafayette, &c. Railroad, 1437. 
 
 V. Madison, 1016, 1020. 
 
 V. Ross, 1362. 
 
 B. Sadgbeer, 515. 
 
 J.'. Thompson, 300. 
 
 V. Welch, 1319. 
 
 Rossiter v. Rossiter, 1119. 
 
 V. Trafalgar Life Assur. Assoc, 1067. 
 
 Roth V. Moore, 1 146. 
 Rotherfield Greys, Rex v., 898. 
 Rothschild v. Currie, 1393. 
 Rouche V. Williamson, 999. 
 Rounds V. Baxter, 835. 
 Roundtree v. Gilroy, 169. 
 Rounsavell v. Pease, 1 1 75. 
 Rountree v. Denson, 409. 
 Rous V. Walden, 1354. 
 Rousillon V. RonsiUon, 515, 517, 1378. 
 Routledge v. Grant, 323, 325. 
 Roveguo V. Deiferari, 646, 696. 
 Rowan v. Hyatt, 1225. 
 Rowe V. Rowe, 827. 
 
 V. Ware, 1045. 
 
 Rowland v. Windley, 1351. 
 Ilowlet 17. Eubank, 393. 
 Rowley v. Bigelow, 672, 673. 
 
 V. Jewett, 751. 
 
 V. Stoddard, 851, 869, 870, 872, 874. 
 
 Royal V. Lindsay, 50. 
 
 Royal Mail Steam Packet Co. v. Brar 
 
 ham, 1003. 
 Royalton v. Eoyalton, &e. Turnpike, 
 
 400, 417. 
 Royce v. Allen, 1076. 
 
 V. Watrous, 282. 
 
 Roys V. Johnson, 482. 
 Rubon V. Stephan, 1458. 
 Rucker b. Cammeyer, 1038, 1049. 
 
 , State v., 1131. 
 
 Rackman v. Bryan, 535. 
 Rudd V. Matthews, 847. 
 Rudolf V. Winters, 534. 
 Rutfner v. Hewitt, 56. 
 Ruggles V. Keeler, 1409, 
 
 V. Lawson, 360, 361. 
 
 V. Swanwick, 168. 
 
 V. Washington, 1109. 
 
 Ruiz V. Norton, 1080. 
 
 Rumball v. Metropolitan Bank, 1185. 
 
 Rump V. Schwartz, 793. 
 
 Eumsey v. Berry, 534. 
 
 Rundel v. Keeler, 911. 
 
 Runkle v. Johnson, 401, 1433. 
 
 Runnamaker u. Cordray, 93. 
 
 Rnpley v. Daggett, 702. 
 
 672 
 
 Rush V. Vought, 1208. 
 Russel V. Langstaffe, 1174. 
 Russell V. Babcock, 63. 
 
 V. Bell, 782. 
 
 V. Branham, 665. 
 
 V. Clark, 1193. 
 
 V. Martin, 377. 
 
 V. Rowland, 358, 359. 
 
 V. Slade, 1274. 
 
 Rutherford v. Baptist Conyention, 51. 
 Rutland's Case, 130. 
 Rutland v. Paige, 111. 
 Rutland Bank v. Parsons, 471, 
 Rutledge v. Montgomery, 352. 
 Ryan v. Ashton, 660, 740. 
 
 V. Dakota School Dist., 472. 
 
 V. Dox, 1237. 
 
 V. Doyle, 1223. 
 
 V. Lynch, 223. 
 
 V. Parker, 765. 
 
 V. Ward, 176. 
 
 Ryder v. Wombwell, 909, 932. 
 Rylands v. Fletcher, 595. 
 Ryno V. Darby, 542. 
 
 Sacra v. Hudson, 885. 
 
 Sadler v. Robinson, 921. 
 
 Safety Deposit Life Ins. Co.y. Smith,210. 
 
 Saiford v. Grout, 652. 
 
 Sage V. Ranney, 1437. 
 
 V. Wilcox, 1266. 
 
 Sainsbury v. Matthews, 1296. 
 St. Bartholomew v. Wood, 799. 
 St. John V. Garrow, 1360. 
 
 0. Hendrickson, 680. 
 
 St. Joseph's Academy v. Angustini, 916. 
 
 St. Joseph Fire, &c. Co. v. Hauck, 286. 
 
 St. Joseph Manuf. Co. v. Daggett, 296. 
 
 St. Louis V. McDonald, 1431. 
 
 St. Louis Bank v. Grand Lodge, 1017. 
 
 St. Louis, &c. Railroad v. Mathers, 525. 
 
 St. Louis, &o. Ry. v. Maddox, 153, 164. 
 
 St. Louis Smelt. &c. Co., v. Green, 300. 
 
 St. Mary's Bank v. Calder, 1226. 
 
 St. Mary's Benef. Soc. v. Burford, 458. 
 
 St. Nicholas's Case, 616. 
 
 St. Patrick's Church v. Abst, 219. 
 
 Sale V. Lambert, 1249. 
 
 Salisbury v. Andrews, 372, 414. 
 
 V. Brisbane, 1088. 
 
 V. Philips, 25. 
 
 Salmon ?•. Brown, 60. 
 
 Salmon Falls Manuf. Co. v. Portsmouth 
 
 Co., 383. 
 Salter v. Burt, 1438. 
 
 V. Kidgly, 426. 
 
 u. Kidley, 276. 
 
 Saltmarsh v. Beene, 881. 
 
 V. Smith, 1052. 
 
 Saltonstall v. Little, 1347. 
 
SAW 
 
 INDEX TO THE CASES CITED. 
 
 SCO 
 
 Samuel v. Marshall, 963. 
 
 V. Thomas, 237. 
 
 Samuels v. Goiham, 1309. 
 
 V. King, 680. 
 
 Ban Jose Sav. Bank v. Sierra Lumber 
 
 Co., 1057. 
 Sanborn v. Batchelder, 679. 
 
 V. Fireman's Ins. Co., 154. 
 
 V. Flagler, 343. 
 
 V. French, 61. 
 
 V. Goodhue, 210. 
 
 V. Merrill, 1265. 
 
 V. Sanborn, 1 244. 
 
 Sander v. Hoffman, 520. 
 Sanders v. Branch Bank, 53. 
 
 V. Johnson, 538. 
 
 V. Maclean, 418. 
 
 V. Norton, 1437. 
 
 V. Ochiltree, 1438. 
 
 V. Eives, 443. 
 
 Sanderson u. Columbian Ins. Co., 449. 
 
 V. Graves, 771, 1234, 1292. 
 
 Sandford v. McArthur 1119. 
 Sands v. Crooke, 61. 
 
 V. Peirson, 1209. 
 
 Sandusky v. Neal, 426. 
 Sanford v. Hayes, 1363. 
 
 V. Housatonic Railroad, 432. 
 
 V. Howard, 713. 
 
 V. Huxford, 61. 
 
 San Francisco, People v., 665. 
 Sanger v. Chicago, 823. 
 
 V. Wood, 783. 
 
 Saratoga County Bank v. King, 126, 
 
 481, 487, 516. 
 Sargent v. Eeed, 124. 
 Sartwell v. Horton, 725. 
 
 V. Humphrey, 348. 
 
 Sasportas v. Jennings, 724. 
 Satterlee i'. Jones, 500. 
 Satterwhite v. Burwell, 1339. 
 Saulsbury v. Wimberly, 1028. 
 Saunders v. Cadwell, 42, 124. 
 
 V. Hackney, 112, 344. 
 
 V. Hanes, 115,383. 
 
 V. Milsome, 129. 
 
 Saunderson v. Jackson, 344. 
 
 V. Marr, 930, 1057. 
 
 Savage v. Foster, 903. 
 
 Savage Manuf. Co. v. Armstrong, 1433. 
 
 Savannah, &c. Railr. v. Callahan, 1452. 
 
 V. Lancaster, 1018. 
 
 Saveland v. Green, 328, 1067. 
 Savery v. King, 848. 
 Savill V. Roberts, 521. 
 Sawtelle v. Drew, 451, 452, 456. 
 Sawyer v. Kendall, 408. 
 
 V. Lufkin, 232. 
 
 V, Macaulay, 1409. 
 
 V. Nichols, 1309. 
 
 V. Peters, 821. 
 
 43 
 
 Sawyer v. Ware, 1316. 
 
 Say's Case, 414. 
 
 Say V. Barwick, 983. 
 
 Saylor v. United States, 1436. 
 
 Sayre v. Nichols (5 Cal. 487), 1077. 
 
 V. Nichols (7 Cal. 535), 1078. 
 
 W.Wheeler (31Iowa, 112), 537,542. 
 
 V. Wheeler (32 Iowa, 559), 537. 
 
 Scales V. Ashbrook, 707. 
 
 V. Key, 446. 
 
 Scamnlonden, Reg. v., 898. 
 Scanlan v. Keith, 1018. 
 Scarlett v. Gorham, 673. 
 Scearce v. Gall, 1266. 
 Schaper v. Schaper, 697. 
 Schautz V. Keener, 702. 
 Schedda v. Sawyer, 1121. 
 Schee v. McQuilken, 727. 
 Scheible v. Slagle, 376. 
 Schemerhorn v. Vanderheyden, 75. 
 Schenck v. Sautter, 1109. 
 Schillinger v. McCann, 275. 
 bchmaling v. Thomlinson, 1067. 
 Schmaltz v. Avery, 1120. 
 Schmertz v. Shreeve, 1152. 
 Schmitheimer v. Eiseman, 902. 
 Schneider v. Norris, 343. 
 Schnell v. Nell, 42, 46. 
 
 V. Schroder, 210. 
 
 Schnewind v. Hacket, 757. 
 Schnierle, State v., 1342, 1343. 
 Schofield v. Holland, 681. 
 Scholefield v. Eichelberger, 862. 
 
 V. Templer, 675. 
 
 Scholey v. Rew, 305. 
 
 School Committee v. Kesler, 346. 
 
 School Directors v. Boomhour, 651. 
 
 V. Trcfethren, 325. 
 
 School District v. Bragdon, 921. 
 
 V. Dauchy, 590, 592. 
 
 V. School District, 1354. 
 
 Schrader v. Decker, 926. 
 Schramm v. O'Connor, 981. 
 Schreiber v. Butler, 169, 390. 
 Schroeder v. Taaffe, 1249. 
 Schuff w. Ransom, 974. 
 Schuhman v. Garratt, 268. 
 Schuylkill Navigation Co. v. Harris, 51. 
 Schwalm v. Holmes, 518. 
 
 V. Mclntyre, 755. 
 
 Schwear v. Haupt, 707. 
 Schweider v. Lang, 54. 
 Schweizer v. Weiber, 186. 
 Scobey v. Ross, 497. 
 Scofield V. Ford, 750, 751. 
 
 V. Gaskill, 216. 
 
 V. Tompkins, 1452. 
 
 Scoggin V. Blackwell, 1280. 
 
 V. Slater, 1292. 
 
 Scotson V. Fegg, 61. 
 Scott, In re, 219. 
 
 673 
 
SBL 
 
 INDEX TO THE CASES CITED, 
 
 SHA 
 
 Scott V. Dansby, 1152. 
 
 V. Duncan, 687. 
 
 V. Hix, 243. 
 
 V. Kittanning Coal Co., 166, 828. 
 
 V. Littledale, 701. 
 
 V. McKinney, 768. 
 
 V. McMillan, 1191, 
 
 V. Mann, 1037, 1040. 
 
 V. Messick, 1077. 
 
 V. Perlee, 1374. 
 
 V. Whipple, 348. 
 
 Seouton v. Eislord, 96. 
 Scovill V. Griffith, 432. 
 
 V. Thayer, 1012, 1013, 1023. 
 
 Scoville V. CanBeld, 1371, 1403. 
 Scranton v. Clark, 243. 
 
 i>. Stewart, 942. 
 
 Scribner v. Collar, 527. 
 Scruggs V. Alexander, 1221. 
 
 V. Driver, 587, 1052. 
 
 Scrugham v. Wood, 352. 
 Scudder v. Bradbury, 452. 
 
 V. Union Nat. Bank, 157, 1371, 
 
 1375. 
 Scully V. Kirkpatrick, 602. 
 Seaman v. Seaman, 58. 
 
 ». Whitney, 1265. 
 
 Searight v. Payne, 1260. 
 Searle v. Galbraith, 963, 969. 
 Sears v. Brink, 1247. 
 
 V. Wempner, 176. 
 
 Seaver v. Coburn, 1077. 
 
 V. Phelps, 970, 971. 
 
 Seckler v. Fox, 169. 
 
 Secombe v. Railroad, 573. 
 
 Second Nat. Bank v. Hemingray, 1408. 
 
 V. Wood, 96. 
 
 Seddon ». Senate, 426. 
 
 Sedgwick v. Stanton, 499. 
 
 Seery v. Socks, 1078, 1119. 
 
 Seiber v. Price, 721. 
 
 Seidel v. Peschkaw, 1121. 
 
 Seidenbender v. Charles, 471. 
 
 Seipel V. Internat'l Life Ins., &c. Co., 828. 
 
 Selborne, Reg. v., 898. 
 
 Selby V. Hutchinson, 828. 
 
 V. Selby, 342, 1244. 
 
 Selden v. Delaware, &c. Canal, 1301. 
 
 V. Myers, 645, 735. 
 
 V. Preston, 592. 
 
 Seklonridge v. Connable, 178. 
 Self V. Clark, 510. 
 
 M. Taylor, 903, 942. 
 
 Seligman v. Armijo, 596. 
 
 Selkirk v. Cobb, i087. 
 
 Sellai's V. Cheney, 299. 
 
 Selleck v. Giiswold, 795. 
 
 Sellers v. Dugan, 537. 
 
 Sellin V. Price, 1167. 
 
 Selma 0. Mullen, 153, 1016. 
 
 Selma, &o. Railroad i;. Anderson, 652. 
 
 674 
 
 Selma, &c. Railroad v. Tipton, 310. 
 Sentance v. Poole, 958. 
 Sentell v. Kennedy, 782, 1108. 
 Senter v. Bowman, 1388. 
 Sergesou v. Sealy (2 Atk. 412), 964. 
 Sergison v. Sealey (9 Mod. 370), 964. 
 Servis v. Cooper, 675. 
 Sessions v. Richmond, 1450. 
 Seton V. Slade, 1347. 
 Severance v. Kimball, 721. 
 Sevey v. Blacklin, 1458. 
 Sewall V. Glidden, 1205. 
 
 V. Sparrow, 146. 
 
 V. Wilkins, 401. 
 
 Sexton V. Chicago, 382. 
 
 V. Fleet, 1330. 
 
 Seybel v. National Cur. Bank, 1186. 
 Seylar v. Carson, 616. 
 Seymour v. Bennet, 1418. 
 
 V. Butler, 856. 
 
 V. Delancy, 45. 
 
 V. Marlboro, 93. 
 
 V, Prescott, 716, 727. 
 
 V. Shea, 1121. 
 
 V. Street, 104. 
 
 V. Western Railroad, 426, 
 
 V. Wyckoff, 848. 
 
 Shackelford v. Barrow, 1425. 
 
 0. Hendley, 670. 
 
 Shackman v. Little, 1060, 1061. 
 Shade v. Creviston, 666, 1180. 
 Shaeffer v. Geisenberg, 255. 
 
 V. Sleade, 658. 
 
 Shaffer v. McKanna, 68. 
 
 V. Rvan, 1263. 
 
 Shaffner v. Killian, 827. 
 Shakespeare v. Markham, 224. 
 Shamburg v. Ruggles, 1148. 
 Shankland v. Washington, 713. 
 Shapley v. Abbott, 95. 
 
 V. Garey, 1339. 
 
 Shardlow v. Cotterell, 1249. 
 Sharlngton v. Strotton, 42, 119. 
 Sharman v. Brandt, 1039. 
 Sharp V. Jones, 673, 1081. 
 
 V. United States, 348. 
 
 V. Wright, 528. 
 
 Sharpe v. Gibbs, 1 29. 
 
 V. Orme, 751. 
 
 V. Rogers, 70. 
 
 V. Williams, 1210. 
 
 Shattuck V. Mutual Life Ins. Co., 1389. 
 Shaughnessy ». Lewis, 178. 
 Shaw V. Ball, 656, 958. 
 
 V. Barnhart, 680. 
 
 V. Beebe, 287. 
 
 V. Bran, 124. 
 
 V. Carlile, 489. 
 
 V. Coffin, 901, 921. 
 
 V. Hall, 1049. 
 
 V. Jeffery, 1203. 
 
SHE 
 
 INDEX TO THE CASES CITED. 
 
 SIM 
 
 Shaw V. Loud, 41 6. 
 
 V. Mitchell, 449. 
 
 V. Nudd, 1049. 
 
 v.. Pratt, 874. 
 
 V. Reed, 493. 
 
 V. Republic Life Ins. Co., 817, 1428. 
 
 V. Spooner, 721. 
 
 V. Thackray, 980. 
 
 V. Turnpike, 795, 1347. 
 
 V. Woodcock, 1234. 
 
 V. Worcester, 1456. 
 
 Shav V. Pettes, 707. 
 Shealy v. Toole, 90. 
 Shear v. Robinson, 173. 
 Sheedy v. Roach, 316. 
 Sheehy v. Adarene, 1283. 
 Sheets v. Selden, 1339. 
 ShefiBeld v. Balnier, 392. 
 
 V. Watson, 994. 
 
 Sheffield, &c. Ry. v. Woodcock, 1022. 
 Shelby v. Smith, 712. 
 Shelden v. Duteher, 1420. 
 Sheldon r. Butler, 1263. 
 
 V. Dunlap, 1077. 
 
 1). Fairfax, 1020. 
 
 V. Harding, 70. 
 
 V. Haxtun, 1388. 
 
 V. Rice, 56. 
 
 V. Sheldon, 881. 
 
 Sheldon Hat Blocking Co. v. Eickemeyer 
 
 Hat, &c. Co., 993, 1109. 
 Shellenbarger v. Blake, 812. 
 Shelley's Case (1 Co. 93 b), 384. 
 Shelley v. Wright, 276. 
 Shelly's Case (1 Salk, 296), 888. 
 Shelton v. Deering, 755. 
 
 V. Marshall, 1383. 
 
 V. Sire, 478. 
 
 Shenk r. Mingle, 509. 
 
 V. Phelps, 727. 
 
 Shepard v. Haas, 169. 
 
 V. Rhodes, 44, 95. 
 
 V. Whetstone, 756. 
 
 Shepherd v. Bevin, 45. 
 
 V. Hedden, 1136. 
 
 V. Hills, 205. 
 
 V. Leeds, 1333. 
 
 V. White, 194. 
 
 Sheppard v. Spates, 1438. 
 
 Sherburne v. Fuller, 834. 
 
 Sheridan v. New Quay Co., 307. 
 
 Sherley v. McCormick, 1389. 
 
 Sherman v. Barrett, 509. 
 
 V. Champlain Transp. Co., 243, 
 
 ¥38, 1274. 
 
 u. Comstock, 1218. 
 
 V. Gassett, 1390. 
 
 V. Roberts, 544. 
 
 V. Smith, 560. 
 
 Sherrill v. Sherrill, 290, 298 
 Sherrington v. Jermyn, 763. 
 
 Sherwin v. Brigham, 48. 
 Shewalter v. Pirner, 386. 
 Shewmake v. Williams, 673. 
 Shinn, State v., 1261. 
 Shipley v. Patton, 1274. 
 Shipman v. Horton, 938. 
 Shirley v. Ayres, 361. 
 
 V. Fearne, 1151. 
 
 V. Healds, 1198. 
 
 V. Shirley, 1246. 
 
 Shirrefll' v. Wilks, 869. 
 
 Shively !J. Black, 1247. 
 
 Shober, &c. Co. v. Kerting, 519. 
 
 Shoe and Leather National Bank v. 
 
 Dix, 1078. 
 Shoemaker v. Stiles, 176. 
 Shoenberger ti. Hay, 404. 
 Short V. McCarthy, 1357. 
 
 V. Stone, 1426, 1429. 
 
 V. Tinsley, 1309. 
 
 II. Woodward, 1304. 
 
 Shorter v. Smith, 575. 
 Shotwell V. Ellis, 1000. 
 
 V. Hamblin, 486. 
 
 V. McKown, 1078. 
 
 Shoulters v. Allen, 966, 970. 
 Shrewsbury v. Birmingham Ky., 1006. 
 — — V. Hope-Scott, 586. 
 Shrock V. Growl, 936. 
 Shropshire v. Burns, 937. 
 Shnbrick v. Adams, 1351. 
 
 V. Salmond, 591. 
 
 Shuetze v. Bailey, 1045. 
 Shuey v. United States, 331, 332. 
 Shnfeldt v. Pease, 673. 
 Shuman v. Shuman, 545. 
 Shumate v. Commonwealth, 530. 
 Shunk V. Miller, 393. 
 Shurtleff i>. Millard, 921. 
 Shute V. Dorr, 898. 
 
 V. Taylor, 1451. 
 
 Sicard v. Davis, 1327. 
 Sickels V. United States, 604. 
 Sidwell I'. Evans, 63. 
 
 V. Lobly, 83. 
 
 Sieckman v. Allen, 1253. 
 
 Siemon v. Wilson, 963. 
 
 Sigerson v. Mathews, 97. 
 
 Sigmon v. Hawn, 779. 
 
 Sikes V. Johnson, 901. 
 
 Silberman v. Clark, 377. 
 
 Siler u. Gray, 600, 603. 
 
 Silliman v. Fredericksburg, &c. Railroad, 
 
 1094. 
 
 V. Wing, 631. 
 
 Silver V. Jordan, 1079. 
 Simmons v. Almy, 56. 
 
 V. Anderson, 793. 
 
 Simms v. Clark, 700. 
 Simon v. Motivos, 1038. 
 Simonds v. Center, 877. 
 
 675 
 
SLA 
 
 INDEX TO THE CASES CITED. 
 
 SMI 
 
 Simonds v. Henry, 1416. 
 Simonton's Estate, 358. 
 Simonton v, Clark, 95. 
 Simpson v. Bibber, 155. 
 
 V. Bloss, 472. 
 
 V. Crippin, 828. 
 
 V. Dix, 374. 
 
 V. Howden, 501. 
 
 V. Lamb, 1051. 
 
 V. McGlathery, 359. 
 
 V. Margitson, 1339. 
 
 V. Moore, 295. 
 
 • V. Nance, 1265. 
 
 V. Nicholls, 542. 
 
 V. Pearson, 267. 
 
 Simpson Cent. College v. Bryan, 71. 
 Sims V. Bardoner, 942. 
 
 V. Bice, 346. 
 
 V. Ferrill, 665. 
 
 V. Hutchins, 1238. 
 
 0. McEweu, 1235. 
 
 V. McLure, 233. 
 
 V. Smith, 942. 
 
 ■Simson v. Brown, 60, 1214. 
 Sinard v. Patterson, 130. 
 Sinclair v. Field, 268, 1120. 
 
 V. Healy, 673. 
 
 w. Mnrphy, 285. 
 
 V. South Carolina Bank, 1357. 
 
 1'. Stevenson, 319. 
 
 Singer Manuf. Co. v. Rawson, 727, 729. 
 
 V. Yarger, 528. 
 
 Singleton v. Bremar, 509. 
 
 V. Mann, 1035. 
 
 !j. St. Louis Mut. Ins. Co., 377. 
 
 V. Thomas, 53. 
 
 Sinking Fund Commissioners v. North- 
 ern Bank, 989. 
 Sinklear v. Emert, 916. 
 Sisters of Charity v. Kelly, 345. 
 Siter V. Sheets, 471. 
 Skeate v. Beale, 722, 725. 
 Skidmore v. Eikenberry, 1420. 
 
 0. Romaine, 232. 
 
 Skinner v. Baker, 358, 
 
 V. Dayton, 844, 1226. 
 
 V. McCarty, 109. 
 
 V. McDouall, 1239. 
 
 V. Maxwell, 923, 937, 940. 
 
 V. Somes, 1179. 
 
 V. Tinker, 1386. 
 
 , United States v., 998. 
 
 V. White, 1453, 1457. 
 
 Skipwith V. Dodd, 1237. 
 Skrainka v. Scharringhausen, 513. 
 Skrine v. Simmons, 690. 
 Slack V. Price, 1437. 
 Slade V. Arnold, 537. 
 
 V. Rhodes, 497. 
 
 Slagel V. Murdock, 299. 
 Slatter v. Meek, 1234. 
 
 676 
 
 Slaughter v. Cunningham, 925, 942. 
 
 Slaymaker v. St. John, 194. 
 
 Sleeper v. Chapman, 675. 
 
 Sleigh w. Sleigh, 211. 
 
 Slidell V. Rightor, 670. 
 
 Slingsby's Case, 1088. 
 
 Slocum V. Seymour, 1294. 
 
 Slocumb V. Chicago, &c., Railroad, 300. 
 
 Sloo V. Law, 1129. 
 
 Small V. Owings, 1049. 
 
 V. Reeves, 1433. 
 
 Smalley v. Greene, 516, 519, 1283. 
 
 V. Line, 50. 
 
 Smart v. Jones, 1299. 
 
 V. Sandars, 1050, 1051, 1062, 1138. 
 
 Smedes, State v., 208. 
 Smillie v. Titus, 720. 
 Smith, Succession of, 970. 
 
 V. Adams, 999. 
 
 V. Mtna Life Ins. Co., 660. 
 
 V. Alexander, 1078. 
 
 «. Allen, 712. 
 
 V. Applegate, 499. 
 
 V. Ash ton. 111. 
 
 V. Atwood (14 6a. 402), 720. 
 
 V. Atwood (3 McLean, 545), 1403. 
 
 l: Babcock, 661. 
 
 I). Baker, 186. 
 
 V. Bartholomew, 50, 53, 874. 
 
 V. Bean, 545. 
 
 V. Beatty, 963. 
 
 V. Black, 877. 
 
 V. Boquet, 194. 
 
 V. Bradley, 193. 
 
 V. Brady, 1445. 
 
 V. Bromley, 629. 
 
 V. Brooks, 75. 
 
 V. Brown, 54. 
 
 V. Buchanan, 1401. 
 
 V. Burnham (9 Johns. 306), 274. 
 
 V. Burnham (3 Sumner, 435), 1292. 
 
 V. Campbell, 1360. 
 
 V. Case, 542. 
 
 V. Cedar Rapids Railroad, 1418. 
 
 V. Click, 657. 
 
 V. Colby, 322. 
 
 V. Crawford, 316. 
 
 V. Cremer, 289. 
 
 V. Crocker, 116, 775, 1168, 1174. 
 
 V. Cudworth, 307. 
 
 V. Denman, 270. 
 
 I!. Dickinson, 1045. 
 
 V. Easton, 696. 
 
 V. Elliott, 963. 
 
 V. Evans, 921, 940. 
 
 >- V. Finch, 1266. 
 
 V. First Cong. Meetinghouse, 1020. 
 
 V. Flanders, 386. 
 
 V. Franklin, 863. 
 
 V. Gibbs, 177. 
 
 1). Godfrey, 1378. 
 
SMI 
 
 INDEX TO THE CASES CITED, 
 
 SOU 
 
 Smith V. Gonlding, 1304. 
 
 V. Gowdy, 30. 
 
 V. Gower, 73. 
 
 V. Graham, 62. 
 
 V. Greenlee, 528. 
 
 V. Gngerty, 767. 
 
 V. Holland, 176. 
 
 V. Holyoke, 679. 
 
 V. Hughes, 317, 653, 664. 
 
 1>. Jersey, 380. 
 
 V. Johnson (45 Iowa, 308), 223. 
 
 V. Johnson (71 Misso. 382), 1062. 
 
 V. Jones, 1243, 1249. 
 
 17. Jordan, 1426. 
 
 V. Kay, 653, 740. 
 
 V. Kelley, 911, 943. 
 
 V. Kerr, 1151. 
 
 !). Kidd, 1061. 
 
 V. Lamb, 818. 
 
 V. Land and Hoose Prop. Corp., 
 
 651. 
 
 V. Leayensworth, 1436. 
 
 V. Lewis, 1418. 
 
 V. McCluskey, 71. 
 
 V. Mace, 755. 
 
 V. Mclver, 690, 732. 
 
 V. McLaughlin, 888. 
 
 V. Marconnay, 1387. 
 
 V. Martin, 520. 
 
 V. Mayo, 936, 937, 943. 
 
 V. Mercer, 700. 
 
 V. Montgomery, 1258. 
 
 V. Muncie National Bank, 1388. 
 
 V. Neale, 1283. 
 
 V. O'Donnell, 164, 839. 
 
 V. Oliphant, 914. 
 
 V. Perry, 1045. 
 
 V. Phillips, 50. 
 
 V. Porter, 178. 
 
 V. Richards, 661, 670. 
 
 V. Richmond, 96. 
 
 V. Rumsey, 1204. 
 
 V. Salomon, 679. 
 
 V. Sanborn, 779, 785. 
 
 V. School District, 62. 
 
 V. Schulenberg, 176. 
 
 V. Smith (8 Blackf. 208), 1317. 
 
 V. Smith/? Car. &P. 401), 82, 230 
 
 V. Smith (85 III. 189), 1216. 
 
 V. Smith (5 Lea, 250), 830. 
 
 V. Snyder, 795. 
 
 V. Stanger, 1104. 
 
 V. Stewart, 306, 1127. 
 
 V. Stone, 875. 
 
 V. Stotesbury (1 W. Bl. 204), 503. 
 
 V. Surman, 323, 1248. 
 
 !.•. Sweeney, 740. 
 
 V. Taylor, 443. 
 
 V. Tracy, 1063, 1097, 1112, 1114. 
 
 V. Tupper, 1 1 52. 
 
 V. Turpin, 165, 
 
 Smith V. Ullman, 528. 
 
 V. Velie, 1355. 
 
 V. Walton, 1437. 
 
 V. Weaver, 321. 
 
 V. Wedgwood, 1452. 
 
 V. Weguelin, 998. 
 
 V. Weld, 765. 
 
 V. Wheeler, 840. 
 
 V. Whildin, 47. 
 
 V. White, 506. 
 
 V. Whitman, 432. 
 
 V. Wilcox, 543. 
 
 V. Wilmington Coal, &c. Co., 603. 
 
 Smithson v. Inman, 833. 
 
 Smithwick v. Shepherd, 1254. 
 
 Smock V. Pierson, 65, 73. 
 
 Smout V. Ilbery, 1053, 1119, 1120. 
 
 SmuU V. Jones, 528. 
 
 Smyth V. Anderson, 1087. 
 
 V. Munroe, 346. 
 
 V. Ward, 1421. 
 
 Sneed v. Wiggins, 1347. 
 
 Snell V. Bray, 67. 
 
 V. Cheney, 1422. 
 
 V. Insurance Co., 704. 
 
 V. Ives, 1220. 
 
 Snevily v. Johnston, 1266. 
 V. Read, 99, 100. 
 
 Snodgrass v. Cabiness, 1198. 
 
 Snook V. Watts, 977. 
 Snow V. Grace, 56. 
 
 V. Hix, 90. 
 
 V. Schomacker Manuf. Co., 382. 
 
 Snyder v. Ives, 711. 
 
 V. Kirtley, 216. 
 
 V. Kurtz, 71. 
 
 V. Willey, 493. 
 
 Soggins V. Heard, 1274. 
 
 Soldiers Orphans Home v. Shaffer, 1017. 
 
 Solly V. Forbes, 380, 873. 
 
 Solomon v. Dreschler, 471. 
 
 Solomons v. Chesley, 547. 
 
 Somers v. Pumphrey, 672, 928, 975, 976. 
 
 Somerset, Rex v., 593, 595. 
 
 Somerset Freeholders v. Veghte, 1358. 
 
 Somes V. Skinner, 656, 735, 958, 963. 
 
 Sorrell v. Jackson, 1230, 1247. 
 
 Sorrells v. McHenry, 71. 
 
 Souch V, Strawbridge, 1274. 
 
 Soule V. Albee, 1265. 
 
 V. Bonney, 492, 493, 720. 
 
 South Baptist Soc. v. Clapp, 1016. 
 South Berwick v. Huntress, 1168, 1174. 
 South Scituate v. Hanover, 211. 
 Southall V. Rigg, 58. 
 Southern Colo. Coal, &c. Co., United 
 
 States v., 1365. 
 Southern Express v. Palmer, 1225. 
 
 V. Womack, 596. 
 
 Southern Express Co. v. DufEey, 493. 
 Southern Ins., &c. Co. v. Cole, 1315. 
 
 677 
 
SPTJ 
 
 INDEX TO THE CASES CITED. 
 
 STB 
 
 Southern Life Insurance, &c. Co. v. 
 Lanier, 1014. 
 
 Southern Mut. Ins. Co. v. Trear, 180. 
 
 Southern, &e. Raih-oad, State v., 559. 
 
 Southerton v. Whitlock, 941. 
 
 Southwell V. Bowditch, 426. 
 
 Southwestern Freight, &c. Co. v. Stan- 
 ard, 449. 
 
 South wick V. Estes, 1112. 
 
 V. Memphis Bank, 674. 
 
 Soutier v. Kellerman, 449. 
 
 Sovereign v. Ortmann, 634. 
 
 Spafford v. Page, 155. 
 
 Spaids V. Barrett, 724. 
 
 Spain V. The Conception, 998. 
 
 V. Hullet, 998. 
 
 Spalding v. Muskingum, 627. 
 
 V. Preston, 471. 
 
 V. Rosa, 600. 
 
 , United States v., 748. 
 
 Spaun V. Baltzell, 768. 
 
 Spargur v. Hall, 656. 
 
 Sparks v. Messiek, 243. 
 
 V. Pittman, 465, 705. 
 
 V. White, 705. 
 
 Spartanburg, &c. Railroad, State w.. Ill, 
 1096. 
 
 Spaulding v. Coon, 372. 
 
 V. Crawford, 93, 727. 
 
 V. Ludlow, &c. Mill, 871. 
 
 Speake v. United States, 775. 
 
 Speckels v. Sax, 345. 
 
 Spedding v. Nevell, 247. 
 
 Speer u. Hadduck, 1054. 
 
 «. Speer, 758. 
 
 Speers v. Sewell, 963. 
 
 Spence v. Healey, 134. 
 
 Spencer's Case, 1191. 
 
 Spencer w. Brockway, 989. 
 
 V. Carr, 923, 925, 937. 
 
 V. Cone, 1316. 
 
 V. Halstead, 1302. 
 
 V. Millisack, 705. 
 
 V. St. Clair, 833. 
 
 a. Vance, 82. 
 
 Spicer v. Earl, 919. 
 
 V. Robinson, 1210. 
 
 Spiel, United States v., 1365. 
 Spinks V, Davis, 1125. 
 Spitler V. James, 1174. 
 Spooner v. McConnell, 555. 
 Sprague v. Bailey, 1089. 
 
 V. Gillett, 1064. 
 
 Spread v. Morgan, 783. 
 
 Spring V. Coffin, 71. 
 
 Spring "Valley Water-works v. Schottler, 
 
 559. 
 Springer v. Cooper, 330. 
 Springs v. Hanks, 124. 
 Sproat V. Porter, 1158. 
 Spurgin v. Traub, 648. 
 
 678 
 
 Spurr V. Trimble, 1045 
 Squire v. Whipple, 1280. 
 
 V. Whitton, 1171. 
 
 Stacey v. Randall, 382. 
 
 Stack V. Charlotte, &c. Railroad, 1436. 
 
 Stackpole v. Arnold, 1077. 
 
 V. Symonds, 544. 
 
 Stacy V. Kemp, 543. 
 
 V. Ross, 646. 
 
 Stadhard v. Lee, 380, 417. 
 Stafford o. Bacon, 100. 
 
 V. Roof, 925, 927, 938. 
 
 Stagg V. Compton, 323. 
 Standiford v. Gentry, 1271. 
 Stanford v. Lyon, 282. 
 
 V. Pruet, 1385. 
 
 Stanhop v. Ecquester, 217. 
 Stanley v. Green, 296. 
 
 V. Nelson, 471. 
 
 Stansbury v. Eringer, 401. 
 Stanton v. Allen, 523. 
 
 V. Willson, 234. 
 
 Stanwood v. Laughlin, 1062. 
 Stapler v. Hurt, 686. 
 Star Line v. Van Vliet, 1060, 1061. 
 Stariha v. Greenwood, 1220. 
 Stark V. Henderson, 688. 
 
 B. Raney, 483, 1265. 
 
 V. Thompson, 211. 
 
 Starkweather v. Cleveland Ins. Co., 197. 
 Starr v. Earle, 1266. 
 State Bank v. Fox, 1083. 
 
 V. Knoop, 559, 561, 563. 
 
 V. Moore, 492. 
 
 V. Plainfield Bank, 1400. 
 
 , United States v., 991. 
 
 B. Whittle, 1209. 
 
 State Lunatic Asylum v. Douglas, 426. 
 State Sav. Assoc, v. Boatmen's Sav. 
 
 Bank, 1218. 
 Statesville Bank v. Simonton, 1216. 
 Stead V. Dawber, 771, 795, 815. 
 Steadman v. Guthrie, 1247. 
 
 V. Taylor, 374. 
 
 Steamship Bulgarian Co. v. Merchants 
 
 Desp. Transp. Co., 1082. 
 Stearns w. Barrett, 1459. 
 
 V. Hall, 771, 852. 
 
 V. Haven, 342. 
 
 V. Herrick, 673. 
 
 V. Johnson, 56. 
 
 Stebbins v. Brown, 454. 
 
 V. Crawford, 44, 98, 100. 
 
 7;. Leowolf, 1376, 1438. 
 
 V. Merritt, 1016. 
 
 V. Niles, 720. 
 
 V. Smith, 1254. 
 
 Steeker v. Smith, 1109. 
 Stedinan v. Davis, 462. 
 
 V. Hart, 968 
 
 Steel V. Payne, 1327. 
 
STI 
 
 INDEX TO THE CASES CITED. 
 
 STO 
 
 Steel v. Smelting Co., 300. 
 
 V. Steel (4 Allen, 417), 821. 
 
 V. Steel (2 Jones, Pa. 64), 1360. 
 
 Steel Works v. Dewey, 458. 
 Steele v. Harmer, 1013. 
 
 1;. Hobbs, 71. 
 
 V. McElroy, 1077. 
 
 V. Putney, 293. 
 
 Steeples v. Newton, 1445. 
 
 Steger ». Frizzell, 237. 
 
 Steinman v. Magnus, 53, 55. 
 
 Steinmetz v. Versailles, &c. Turnp., 403. 
 
 Stephen v. State, 377. 
 
 Stephens v. Badcock, 1067. 
 
 V. Murton, 707. 
 
 , People v., 524, 528. 
 
 , Eex v., 1351. 
 
 V. Wilkinson, 828. 
 
 Stephenson v. Clark, 1309. 
 
 V. Short, 1013. 
 
 Sterling v. Baldwin, 1294. 
 Stern v. Freeman, 944. 
 Stemburg v. Bowman, 59, 527. 
 Stevens v. Adams, 1436. 
 
 V. Austin, 682. 
 
 V. Biller, 1140. 
 
 V. Brown, 1370. 
 
 V. Corbitt, 87. 
 
 V. Hatch, 352. 
 
 V. Johnson, 1180. 
 
 V. Lloyd, 763. 
 
 1;. Lynch, 462. 
 
 V. Perrier, 472. 
 
 , Eex v., 1343. 
 
 V. Walker, 246. 
 
 V. Webb, 606, 1218. 
 
 Steyenson's Case, 991. 
 Stevenson v. Dunlap, 999. 
 
 V. Fuller, 1218. 
 
 B. McLean, 326. 
 
 V. Newnham, 672, 673. 
 
 Steward v. Coesvelt, 669. 
 Stewart v. Ahrenfeldt, 58. 
 
 V. Anderson, 356, 357. 
 
 ». Challacombe, 516. 
 
 V, Craig, 1444. 
 
 V. Davis, 541. 
 
 I'. Hamilton College, 60. 
 
 V, Kershaw, 56. 
 
 V. Keteltas, 1431. 
 
 V. Loring, 599. 
 
 V. Morrow, 1436. 
 
 V. Phoenix Ins. Co., 176. 
 
 V. Smith, 372.. 
 
 V. Sonnebom, 1148. 
 
 V. Stewart, 739. 
 
 V. Weed, 355. 
 
 Stewartson v. Lothrop, 472. 
 Stewkley's Case, 387. 
 Stiles V. McClellan, 78. 
 Stilwell V. Wilkins, 45. 
 
 Stimpson v. Gilchrist, 432. 
 
 V. Sprague, 190. 
 
 Stinchfield w. Little, 994. 
 Stirling v. Vanghan, 351. 
 Stockdale v. Onwhyn, 508. 
 Stockley v. Stockley, 964. 
 Stoekmeyer v. Weijner, 71. 
 Stockton V. Turner, 383, 1152. 
 Stockton Sav., &c. See. c. Hildreth, 1433. 
 Stockwell V. Bramble, 156, 157. 
 
 V. Gidney, 1422. 
 
 Stoddard v. Burton, 267, 268. 
 
 V. Mix, 1074. 
 
 V. Penniman, 755. 
 
 Stokes V. Brown, 937. 
 
 V. Burrell, 1433. 
 
 Stone V. Bradbury, 109. 
 
 V. Browning, 1319, 1322. 
 
 V. Covell, 661. 
 
 V. Dennis, 591. 
 
 V. Dennison, 908, 916, 921, 1234. 
 
 V. Denny, 661. 
 
 V. Gilman, 286. 
 
 V. Harmon, 327. 
 
 V. Hooker, 484. 
 
 V. Mississippi, 564. 
 
 V. Peacock, 1309. 
 
 V. State, 1134. 
 
 V. Svmmes, 1261. 
 
 V. Wilbern, 9.^8, 964. 
 
 V. Wood, 1077. 
 
 V. Wythipol, 943. 
 
 Stonington v. Powers, 493. 
 Storer v. Gordon, 426. 
 Storm V. United States, 87. 
 Storrs V. Scougale, 656. 
 Story V. Conger, 711. 
 
 V. Elliot, 536. 
 
 V. Livingston, 1193. 
 
 V. Norwich, &c. Railroad, 670. 
 
 V. Pery, 913, 920. 
 
 V. Salomon, 534. 
 
 , State v., 50. 
 
 Stose V. People, 1458. 
 Stotesbury v. Smith, 503. 
 StothofE u. Dunham, 864, 865. 
 Stoudenmeier v. Williamson, 1253. 
 Stouffer V. Latshaw, 721. 
 Stout V. Ennis, 503, 1283, 1285. 
 Stoutenburg v. Lybrand, 59, 496. 
 Stoutiraore v. Clark, 304. 
 Stovall V. Barnett, 42, 127. 
 Stover V. Flack, 805. 
 
 V. Metzgar, 382. 
 
 V. Poole, 705, 708. 
 
 Stowy. Russell, 1347. 
 
 V. Sawyer, 209. 
 
 V. Wyse, 1048. 
 
 Stowe V. United States, 1169. 
 Stowel w. Zouch, 922. 
 Stowell V. Drake, 863. 
 
 679 
 
SUL 
 
 INDEX TO THE CASES CITED. 
 
 SWl 
 
 Stowell V. Fowler, 1364. 
 Strahn v. Hamilton, 70. 
 Strain v. Wright, 917, 940. 
 Strasser v. Conklin, 1109. 
 Stratford c. Bosworth, 384. 
 
 V. Twynam, 881. 
 
 Stratton v. Lyons, 1023. 
 Straus V. Eagle Ins. Co., 1005." 
 Strauss v. Meertief, 841. 
 
 V. Rose, 1209. 
 
 Strawbridge v. Cartledge, 75. 
 Strawn v. Cogswell, 801. 
 
 V. O'Hara, 1094. 
 
 Streatfield v. Halliday, 870. 
 
 Streeks v. Dyer, 270. 
 
 Street v. Chapman, 328. 
 
 Strieker v. Tinkham, 1379. 
 
 Stringer v. Northwestern Mut. Life Ins. 
 
 Co., 942. 
 Stringfield v. Heiskell, 1182. 
 Stringham v. St. Nicholas Ins. Co., 1057. 
 Strohecker v. Farmers Bank, 381. 
 Strohl V. Levan, 900. 
 Strohn v. Detroit, &c. Railroad, 596. 
 
 V. Hartford Fire Ins. Co., 154. 
 
 Strong V. Courtney, 70. 
 
 V. Foote, 909. 
 
 V. Grand Trunk Railroad, 449. 
 
 V. Irwin, 270. 
 
 V. Linington, 645. 
 
 Strother v. Butler, 186. 
 Stroud V. Smith, 498. 
 Strough V. Gear, 674. 
 Stryker v. Rivers, 793. 
 
 V. Vanderbilt (1 Dntcher, 482), 690. 
 
 V. Vanderbilt (3 Dutcher, 68), 1438. 
 
 Stuart V. Baker, 940. 
 
 V. Lake, 238. 
 
 w. Simpson, 228. 
 
 Stubbs V. Holywell Railway, 600, 861. 
 
 V. Houston, 961. 
 
 Stuber v. Schack, 49. 
 
 Studwell V. Shapter, 902. 
 
 Stufflebeem v. Arnold, 75. 
 
 Stukeley v. Butler, 442. 
 
 Sturges V. Crowninshield, 22, 567, 572. 
 
 Stnrgis v. Preston, 1354. 
 
 V. Slacum, 1140. 
 
 Sturm V. Fleming, 1001. 
 Styron v. Bell, 768. 
 Suber v. Chandler, 1354. 
 
 V. PuUin, 827, 1316. 
 
 SufFern v. Butler, 346. 
 
 Sugarman v. State, 593. 
 
 Suggett V. Cason, 1274. 
 
 Suit V. Woodhall, 481. 
 
 SuUings V. Goodyear Dental Vulc. Co., 
 
 1428. 
 
 V. Richmond, 1269. 
 
 Sullivan v. Campbell, 1162. 
 V. Davis, 1354, 1355. 
 
 680 
 
 Sullivan v. Park, 288. 
 
 V. Thompson, 449. 
 
 Summer v. Ferryman, 722. 
 Summerall v. Thorns, 1274. 
 Summers v. Clark, 215. 
 
 V. Dame, 355. 
 
 V. Wilson, 942. 
 
 Sumner v. Jones, 545. 
 
 V. Powell, 864. 
 
 1-. Williams, 248, 372, 1077. 
 
 Sunderland Marine Ins. Co. v. Kearney, 
 
 426. 
 Supervisors v. Arrghi, 1421. 
 Surles V. Pipkin, 968. 
 Surtees v. Hubbard, 1181. 
 Susong V. Vaiden, 65. 
 Susquehanna Canal v. Bonham, 1012. 
 Susquehanna Mut. Fire Ins. Co. v. 
 
 Staats, 797. 
 
 V. Swank, 346. 
 
 Sutcliffe V. Atlantic Mills, 1280. 
 Sutphen v. Sutphen, 1274. 
 Sutton, Ex parte, 1067. 
 Sutton's Hospital, 1008. 
 Sutton v. Howard, 1450. 
 
 V. Wood, 292, 294. 
 
 Suydam u. Broadnax, 566. 
 Swafford v. Ferguson, 917, 929, 932. 
 Swain v. Frazier, 176. 
 
 V. Ransom, 117. 
 
 Swall w. Clarke, 1189. 
 
 Swan V. North British Aust. Co., 1169. 
 
 V. Stedman, 1151. 
 
 Swanger v. Mayberry, 472. 
 Swann v. Broome, 536. 
 
 V. Buck, 208. 
 
 V. Lindsey, 1365. 
 
 V. Swann, 1376. 
 
 Swansea v. Hopkins, 205. 
 
 Swanzey v. Moore, 1234, 1236, 1238, 
 
 1283. 
 Swasey v. Vanderheyden, 916. 
 Swatara Railroad v. Brune, 226. 
 Sweatman v. Parker, 1259. 
 Sweem v. Steele, 1459. 
 Sweeney v. Owsley, 1309. 
 Sweet V. Brackley, 877. 
 Sweetlaud v. Barrett, 1239, 
 Sweezey v. Collins, 298. 
 Sweigart v. Berk, 875. 
 Swift V. Bennett, 914. 
 
 V. Crocker, 93. 
 
 u. Hopkins, 992. 
 
 V. Jewsbury, 1118. 
 
 V. Pierce, 1260. 
 
 V. Tousey, 1338. 
 
 V. United States, 795. 
 
 V. Winterbotham, 1118. 
 
 Swire v. Francis, 1102. 
 Switzer v. Knapps, 1327. 
 V. Skiles, 528. 
 
TAT 
 
 INDEX TO THE CASES CITED. 
 
 TEX 
 
 Swope V. Forney, 75. 
 Sykes v. Beadon, 471. 
 -^D. Giles, 1134. 
 
 Taft!). Pike, 921. 
 
 V. Ward, 1406. 
 
 Tagg V. Tennessee Nat. Bank, 1028. 
 
 Taggart v. Stanbery, 275. 
 
 Taliiti Cotton Co., In re, 1165, 1174. 
 
 Tainter J). Winter, 291. 
 
 Taintor o. Prendergast, 1080. 
 
 Taitet). Gosling, 1191. 
 
 Talbot V. Bowen, 1035. 
 
 V. Hodson, 1460. 
 
 Talbott I'. Hooser, 45. 
 Talcott V. Henderson, 667. 
 Taliaferro v. Kolton, 351, 821. 
 Talladega Ins. Co. v. Landers, 1 006. 
 Talmadge v. North American Coal, &o. 
 
 Co., 1014. 
 Talmage, People v., 989, 992. 
 Tamplin v. James, 702. 
 Tandy v. Masterson, 925. 
 Tanner v. Smart, 95, 1364. 
 Tanneret v. Edwards, 1309. 
 Tapley v. McGee, 930. 
 Tappan v. Aylsworth, 740. 
 
 I). Poor, 1402. 
 
 V. Eedfield, 1045. 
 
 Tappin v. Broster, 91. 
 TarbellB. Tarbell, 1269. 
 Tarleton v. Kennedy, 304. 
 Tarner v. Walker, 331. 
 Tasker J). Bartlett, 111. 
 
 V. Kenton Ins. Co., 1110. 
 
 Tate V. Evans, 1098. 
 
 V. Fletcher, 757. 
 
 V. Tate, 923. 
 
 Tatem v. Chaplin, 1191. 
 
 Tatterson v. Suffolk Manuf. Co., 1283. 
 
 Tatum V. Kelley, 535. 
 
 Taunton v. Pepler, 1 1 2. 
 
 Taussig V. Hart, 29, 881. 
 
 Tayloe v. Merchants Fire Ins. Co., 326, 
 
 328. 
 Taylor's Appeal, 780. 
 Taylor v. Benham, 999. 
 
 V. Blanchard, 517. 
 
 V. Booth, 1393. 
 
 V. Caldwell, 588. 
 
 V. Carpenter, 999. 
 
 V. Chester, 59, 489, 506. 
 
 V. Chicago, &c. Railway, 1061. 
 
 V. Cornelius, 165. 
 
 V, Cottrell, 720. 
 
 V. Croker, 921. 
 
 V. Devey, 455. 
 
 V. Dudley, 958. 
 
 V. Dunbar, 582. 
 
 V. Ely, 284. 
 
 Taylor v. Galland, 1182. 
 
 V. Gerrish, 1300. 
 
 V. Glaser, 109. 
 
 V. Harris, 1053. 
 
 V. Heggie, 1016. 
 
 V. Hodgson, 885. 
 
 V. Jackson, 1420. 
 
 V. Leith, 662. 
 
 V. Longworth, 1347. 
 
 V. Luther, 1237. 
 
 V. Mayhew, 73. 
 
 V. Mechanics Savings Bank, 923. 
 
 V. Meek, 768, 1266. 
 
 V. Mueller, 451. 
 
 11. Mygatt, 1254. 
 
 V. Needham, 274. 
 
 V. Nussbaum, 56. 
 
 V. Obee, 45. 
 
 V. Paterson, 417. 
 
 1). Portington, 316. 
 
 V. Prestidge, 795. 
 
 V. Preston, 115, 1263. 
 
 V. Eenn, 1418. 
 
 , Kex v., 1131. 
 
 V. Robinson, 1 223. 
 
 V. Shelton, 1120. 
 
 V. Shouse, 321. 
 
 V. Starkey, 1062. 
 
 V. Taylor (78 Ky. 470), 1194. 
 
 V. Taylor (1 Lea, 83), 223. 
 
 V. Taylor (12 Lea, 714), 757. 
 
 V. Trulock, 169. 
 
 V. Wells, 1 138. 
 
 V. Wightman, 75. 
 
 V. Wood, 224. 
 
 V. Zepp, 287. 
 
 Teal V. Woodworth, 277. 
 
 Teasdale v. Atkinson, 1205. 
 
 Tedrick v. Hiner, 547. 
 
 Teelew. Otis, 1120. 
 
 Teessen v. Camblin, 1360. 
 
 Teeter v. Williams, 1208. 
 
 Tell City Furniture Co. v. Nees, 1022. 
 
 Tempest v. Kilner, 1315. 
 
 Teneick v. Flagg, 359. 
 
 Tenney v. East Warren, &c. Co., 1016. 
 
 V. Foote (4 Bradw. 594), 534. 
 
 V. Foote (95 111. 99), 74. 
 
 V. Prince, 40, 1247. 
 
 Terhune v. Devcr, 661. 
 Terrett v. Taylor, 555, 561, 563. 
 Territt v. Bartlett, 471. 
 Terry v. Hazlewood, 753. 
 
 V. McClintoek, 942. 
 
 V. New York, 609. 
 
 Teutonia Ins. Co. v. Boylston Mut. Ins. 
 
 Co., 414. 
 Tewksbury, Commonwealth v., 574. 
 Texas v. White, 1186, 1189. 
 Texas, &c. Railroad v. Jarrell, 300. 
 Texas, &c. Railway v. Rust, 803. 
 
 681 
 
THO 
 
 INDEX TO THE CASES CITED. 
 
 TIG 
 
 Thacher v. Dinsmore, 1077. 
 Tharp v. Jarrell, 355. 
 Tharpe u. Stallwood, 1198. 
 Thatcher v. England, 331. 
 
 V. St. Andrew's Church, 349, 350. 
 
 Thayer v. Lapham, 383. 
 
 V. Kock, 1292. 
 
 V. Viles, 275, 1304. 
 
 V. Younge, 520. 
 
 Thelusson v. Smith, 991. 
 'I'himbleby v. Barron, 857. 
 Thing V. Libbey, 943, 944. 
 Thomas v. Austin, 382. 
 
 V. Bavtow, 245. 
 
 V. Bleakie, 358. 
 
 V. Bowman, 282. 
 
 V. Croft, 1266. 
 
 V. Delphy, 1266. 
 
 V. Bering, 319. 
 
 V. Dike, 925, 937. 
 
 V. Ellis, 1444. 
 
 u. Eame Ins. Co., 381. 
 
 i>. Graves, 449. 
 
 V. Hammond, 1230, 1247, 1274. 
 
 y. Heathorn, 50. 
 
 V. Joslin, 385, 1096. 
 
 V. Mathis, 390. 
 
 V. Reg., 989. 
 
 V. Roberts, 930. 
 
 V. Shoemaker, 1339, 1439. 
 
 V. Steele, 1127. 
 
 V. Thomas, 37, 38, 60. 
 
 V. Todd, 699. 
 
 Thomason v. Dill, 78, 134. 
 Thomasson v. Boyd, 937. 
 
 V. Risk, 1 56. 
 
 Thompson u. Allen, 275. 
 
 V. Blanchard, 75, 193, 1247. 
 
 V. Boyle, 456. 
 
 V. Brown, 130. 
 
 V. Davies, 528. 
 
 V. Dorsey, 82. 
 
 u. Easton, 350. 
 
 V. Edwards, 1389. 
 
 V. Garrison, 1 1 60. 
 
 V. Gordon (72 Ala. 455), 316, 390. 
 
 V. Gordon (3 Strob. 196), 1274. 
 
 V. Hamilton, 905, 917. 
 
 V. Holton, 563. 
 
 u. Hunt, 1456. 
 
 V. Ketcham (4 Johns. 285), 1379, 
 
 1392. 
 V. Ketcham (8 Johns. 190), 1383, 
 
 1437. 
 
 V. Knickerbocker Life Ins. Co., 797. 
 
 u. Lack, 873. 
 
 V. Laing, 1425. 
 
 V. Lambert, 1011. 
 
 V. Lay, 937, 943. 
 
 V. Lindsay, 244. 
 
 V. McElarney, 1300. 
 
 682 
 
 Thompson v. Marshall, 385. 
 
 V. Matthews, 447, 457. 
 
 V. i'arker, 1223. 
 
 V. Purcell, 1444. 
 
 V. Reed, 1409. 
 
 , State I!., Ill, 1404. 
 
 V. Strickland, 942. 
 
 V. Thompson (9 Ind. 323), 291. 
 
 V. Thompson (5 W. Va. 190), 238. 
 
 v. Toledo Bank, 288, 1 145. 
 
 V. Wheeler, &c. Manuf. Co., 71. 
 
 V. Williams, 775. 
 
 Thomson v. Butler, 1437. 
 
 V. Davenport, 1079, 1085, 1087. 
 
 V. Eastwood, 738. 
 
 V. Harcourt, 1457. 
 
 V. Lee, 569, 1187. 
 
 V. Weems, 665. 
 
 Thorn v. Thorn, 121, 688. 
 Thornburg v. Masten, 390, 1247. 
 Thorne v. Deas, 77. 
 
 V. Mosher, 282. 
 
 V. Travellers Ins. Co., 472. 
 
 V. Warfflein, 171. 
 
 Thornton v. Appleton, 971. 
 
 V. Boyd, 1338. 
 
 V. Corbin, 1230. 
 
 V. Davenport, 1209. 
 
 V. Dean, 1388. 
 
 V. Guice, 68, 1261. 
 
 V. Smith, 1220. 
 
 V. Tandy, 1209. 
 
 V. Wynn, 97. 
 
 Thoronghgood's Case, 346, 646. 
 Thoroughgood !•. Walker, 1452. 
 Thorp V. Bateman, 223. 
 
 V. McCuUum, 881. 
 
 Thonbboron v. Lewis, 1420. 
 Thouvenin v. Lea, 1274. 
 Thrall v. Lathrop, 293. 
 
 V. Newell, 391. 
 
 Threadgill v. Butler, 1172. 
 
 Three Thousand Empty Oil Barrels, The 
 
 Sultan v., 450. 
 Three Towns Banking Co. v. Maddever, 
 
 1351. 
 Throop V. Hatch, 1329. 
 Thurlow V. Gilmore, 944. 
 Thurman v. Burt, 721. 
 
 V. Wells, 432. 
 
 Thurston v. Arnold, 1347. 
 
 I'. Blanchard, 679, 681, 682. 
 
 V. Ludwig, 768. 
 
 V. Porcival, 188. 
 
 Tibbals v. Jacobs, 351. 
 Tibbetts v. Flanders, 1264. 
 Tibbits V. George, 1 1 80. 
 Tice V. Freeman, 1249. 
 Tiffany ti. Anderson, 295. 
 Tifft V. Tifft, 900, 901. 
 Tightraeyer v. Mongold, 782. 
 
TOW 
 
 INDEX TO THE CASES CITED. 
 
 TRU 
 
 Tilden v. Barnard, 1077. 
 
 V. New York, 48. 
 
 Tileston v. Brookline, 1354. 
 
 V. Newell, 401. 
 
 Tilson V. Warwick Gas Light Co., 205. 
 Tilton V. Tilton, 1054. 
 Timon v. White, 284. 
 Tindal v. Touchberry, 1265. 
 Tingey, United States v., 988. 
 Tingley v. Cutler, 75. 
 Tinkler v. Swaynie, 1235. 
 Tippins V. Coates, 866. 
 Tisdale v. Buckmore, 833. 
 
 V. Harris, 1315. 
 
 Titman v. Titman, 230. 
 Titus V. Preston, 1339. 
 
 V. Scantling, 1383. 
 
 Tobey v. Moore, 398. 
 
 V. Robinson, 691. 
 
 V. Taunton, 249. 
 
 V. Wood, 943. 
 
 Toddw. Emly, 1157. 
 
 V. Summers, 401 . 
 
 V. Weber, 317, 1220. 
 
 Toledo Bank ;;. Toledo, 559. 
 
 Toledo, &c. Railroad v. Rodrigues, 1013. 
 
 Toleman a. Portbury, 794. 
 
 Toles V. Cole, 1458. 
 
 Tolhurst V. Brickinden, 390. 
 
 Tolman v. Johnson, 547. 
 
 Tolson V. Garner, 971. 
 
 Tom V. Goodrich, 876. 
 
 Tome V. Dubois, 1309. 
 
 Tomliu V. Cox, 690. 
 
 Tomlinson v. CoUett, 1092. 
 
 V. Dighton, 126. 
 
 K.Gill, 1254. 
 
 V. Smith, 90. 
 
 Tompkins v. Philips, 61. 
 
 V. Wheeler, 353. 
 
 Tomson v. Ward, 821. 
 
 Tone V. Columbus, 793. 
 
 Tooley v. Dibble, 361. 
 
 Toombs V. Consolidated Poe Mining Co., 
 
 1422. 
 Toops V. Snyder, 465, 704. 
 Tootell, Ex parte, 316. 
 Tootle V. Coldwell, 1209. 
 Tojjp ». White, 73. 
 Torian v. MeClure, 1354. 
 Torinus v. Buckham, 74. 
 Toris V. Long, 244. 
 Torrance v. Bolton, 680. 
 Torrence v. Alexander, 1358. 
 Touro V. Cassin, 1136, 1379. 
 Toussaint v. Martinnant, 185, 187. 
 Towanda Bridge, In re, 573. 
 Towers v. Osborne, 1313. 
 Towery v. Henderson, 351. 
 Towle V. Dresser, 921, 930, 938. 
 V. Leavitt, 1094. 
 
 Towne <>. Butterfield, 306. 
 
 V. Wiley, 901. 
 
 Townsend v. Burnham, 234. 
 
 V. Cowles, 665. 
 
 V. Empire Stone-Dressing Co., 135. 
 
 !;. Fisher, 78. 
 
 V. Goewey, 1156. 
 
 V. Hargraves, 1323. 
 
 V. Hurst, 828. 
 
 B. Townsend (5 Harring. Del. 127), 
 
 1074. 
 
 V. Townsend (6 Met. 319), 1304. 
 
 V. Whitby, 444. 
 
 Townsley v. Sumrall, 1258. 
 
 Towsley v. Moore, 1283. 
 
 Tozer v. Saturlee, 959. 
 
 Tozer's Estate, In re, 1259. 
 
 Trabue v. Short, 1385. 
 
 Tracy v. Chicago, 372. 
 
 V. Cover, 1207. 
 
 V. Gunn, 887. 
 
 V. Talmage, 628, 629. 
 
 Trader v. Jarvis, 1351. 
 
 Trambly v. Ricard, 346. 
 
 Trammell v. Trammell, 1292. 
 
 Trasher v. Everhart, 1404. 
 
 Travers v. Crane, 1053. 
 
 Travis v. Duffan, 40. 
 
 Trayerw. Reeder, 167, 172. 
 
 Traynham v. Jackson, 1078. 
 
 Treadway v. Smith, 1280. 
 
 Treadwell v. Herndon, 1253. 
 
 Treasures v. Cleary, 989. 
 
 Treat v. Shoninger Melodeon Co., 516. 
 
 V. Stanton, 1220. 
 
 Tremble v. Crowell, 449. 
 
 Trent Navigation v. Wood, 593. 
 
 Trenton Banking Co. v. Duncan, 294, 
 296. 
 
 Trevor v. Wood, 328, 329. 
 
 Tribble v. Anderson, 299. 
 
 Trice v. Turrentine, 1458. 
 
 Trigg V. Read, 660. 
 
 Trimbey v. Vignier, 1371, 1385. 
 
 Trimble v. Coons, 1151. 
 
 Trimmier v. Thomson, 594. 
 
 Trinity Church v. Higgins, 1437. 
 
 Tripp V. Barton, 1134. 
 
 Trist V. Child, 499. 
 
 Troewert v. Decker, 540, 542. 
 
 Trott w. Irish, 1147. 
 
 Trovinger v. McBurney, 509, 510. 
 
 Trowbridge v. Matthews, 298. 
 
 V. Wetherbee, 1304. 
 
 Troy V. Bland, 57. 
 
 Troy & Greenfield Railroad v. Common- 
 wealth, 989. 
 
 Trueblood v. TrueWood, 930. 
 
 Truebody v. Jacobson, 660. 
 
 Trueman v. Fenton, 96. 
 
 K. Loder, 1105. 
 
 683 
 
TWY 
 
 INDEX TO THE CASES CITED. 
 
 VAN 
 
 Trumball v. Tilton, 1360. 
 Trumbull v. Nicholson, 1050, 1056. 
 Trundy v. Farrar, 1049. 
 Tucker v. Bruce, 342. 
 
 V. Meld, 390. 
 
 V. Lawrence, 325. 
 
 V. Moreland, 937, 942. 
 
 0. Mowrey, 545. 
 
 V. Palmer, 1220. 
 
 w. Peaslee, 1146. 
 
 V. St. Louis, &c. Railway, 1066. 
 
 V. Stokes, 480. 
 
 V. West, 59, 537, 542. 
 
 V. Woods, 79. 
 
 Tuckerman v. Hinkley, 544. 
 
 V. Newhall, 870. 
 
 V. Sleeper, 870. 
 
 Tufts V. Carradine, 1340. 
 
 Tugman v. National Steamship Co, 
 
 1182. 
 Tugwell V. Heyman, 237, 888. 
 TuUet V. Linfield, 1339. 
 Tunno v. Robert, 1444. 
 Tupper V. Cad well, 911. 
 
 «. Foulkes, 1170. 
 
 Turbeville v. Ryan, 1152. 
 Tnrnan v. Temke, 1052. 
 TurnbuU v. Brock, 50. 
 
 V. Gadsden, 690. 
 
 Turner v. Baker, 748. 
 
 V. Barlow, 1339. 
 
 ■ V. Chrisman, 96. 
 
 V, Bsselman, 871. 
 
 V. Ferguson, 293. 
 
 V. Gaither, 943. 
 
 V. Hnggias, 664. 
 
 V. Johnson, 657. 
 
 0. Jones, 238. 
 
 u. London, &c. Railway, 1053. 
 
 V. Rusk, 971, 974. 
 
 u. Trisby, 910. 
 
 V. Turner, 856. 
 
 Turnpike v. State, 575. 
 Turpen v. Tipton, 208. 
 Turton v. Benson, 1180. 
 Tuttle V. Ayres, 1078. 
 
 V. Cooper, 869, 871. 
 
 V. Love, 321. 
 
 V. Swett, 1280. 
 
 V. Turner, 81. 
 
 Twopenny v. Young, 129. 
 Tyler u. Bailey, 245. • 
 
 V. Fickett, 408. 
 
 V. McCardle, 1347. 
 
 V. Smith, 627. 
 
 Tyler Cotton-press Co. v. Chevalier, 50. 
 Tynes v. Grimstead, 881. 
 Tyrrell v. Bank of London, 740. 
 
 V. Hope, 660. 
 
 V. Washburn, 1162. 
 
 Twycross v. Dreyfus, 998. 
 
 684 
 
 Udell V. Atherton, 1112. 
 Uhl V. Bingaman, 1148. 
 
 V. Harvey, 1148. 
 
 Uhler V. Applegate, 545. 
 
 Ulam V. Boyd, 1163. 
 
 Ulrich V. McCormick, 1067. 
 
 Umbenhower v. Miller, 173. 
 
 Underbill v. Horwood, 348. 
 
 V. Mobile Fire Dept. Ins. Co., 1356, 
 
 1358. 
 Underwood v. DoUins, 111. 
 
 V. Hossack, 63. 
 
 V. NichoUs, 1094. 
 
 V. West, 679. 
 
 Ungley v. Ungley, 153, 399. 
 Union Bank v. Call, 815, 851, 1016. 
 
 V. Campbell, 1112. 
 
 V. Cook, 755. 
 
 Union, &c. Co. u. Erie Railway, 1378. 
 Union Depot Co. v. St. Louis, 310. 
 Union Gold Mining Co. v. Rocky Mt 
 
 Nat. Bank, 1011. 
 Union Mnt. Ins. Co. v. Campbell, 355. 
 Union Mut. Life Ins. Co. v. White, 288, 
 
 1102. 
 Union Nat. Bank v. Carr, 534. 
 Union Pacific Railroad v. Credit Mo- 
 
 bilier, 1021. 
 United States B'k v. B'k of Georgia, 700. 
 
 V. Donnally, 1391, 1404. 
 
 United States Express Co. v. Keefer, 377. 
 Unity Joint Stock Mut. Banking Assoc, 
 
 Ex parte, 902. 
 University v. McNair, 89. 
 University of Michigan v. Detroit, &c. 
 
 Soc, 1016. 
 Unwin v. Wolseley, 994. 
 Updike V. Ten Broeck, 1278. 
 
 V. Titus, 44. 
 
 Upton V. Moore, 1180. 
 Urban v. Grimes, 942. 
 Urquhart v. Macpherson, 671, 675; 
 Usher v. D'Wolfe, 1179. 
 
 V. Hiatt, 592. 
 
 V. Livermore, 1347. 
 
 V. McBratney, 499. 
 
 Usparicha v. Noble, 1000. 
 
 Utica Ins. Co. v. Toledo Ins. Co., 1041. 
 
 Utley V. Burns, 1416, 1417. 
 
 Utz V. Utz, 1360. 
 
 Vacearo v. Toof, 1056. 
 Vail V. Mumford, 141. 
 
 V. Pacific Railroad, 593. 
 
 Valentine v. Foster, 51, 99. 
 
 V. Piper, 1062. 
 
 V. Stewart, 487, 496, 1125. 
 
 Vallance, In re, 509. 
 Vanada v. Hopkins, 1097. 
 Van Alen v. Vosburgh, 306. 
 
VER 
 
 INDEX TO THE CASES CITED. 
 
 "WAL 
 
 Van Allen v. Jones, 62, 768. 
 Van Arsdale v. Howard, 660. 
 Vanauken v. Hornbeek, 757. 
 Van Bergen v. Demarest, 1054. 
 Van Bibber v. Mathis, 12U. 
 Van Bramer v. Cooper, 936. 
 Vanbrnnt v. Singley, 647. 
 Van Buren v. Digges, 1421. 
 Vance v. Funk, 111. 
 
 V. Iiowther, 750, 754. 
 
 V. Schroyer, 833. 
 
 V. Wells, 44. 
 
 Vandegrift v. Herbert, 173. 
 Vanderkarr v. Vanderkarr, 248. 
 Van Ueusen v. Hayward, 443. 
 
 V. Sweet, 958, 972. 
 
 Van Dusen v. Parley, 712. 
 Van Eps v. Schenectady, 105. 
 Van Evera v. Davis, 169. 
 Van Fleet v. Van Fleet, 185. 
 Van Hook v. Simmons, 821. 
 Vanhooser v. Logan, 1436. 
 Vanhorne v. Dorrance, 586. 
 Van Hoven v. Irish, 542. 
 Van Lien v. Byrnes, 1080. 
 Van Loon v. Smith, 1351. 
 Van Ness v. Pacard, 449. 
 Van Pelt v. Corwine, 921. 
 
 , State v., 765. 
 
 Van Santwood v. Sandford, 106, 107. 
 Van SchoonhoTen v. Curley, 439. 
 Van Shaack v. Eobbins, 616. 
 Van Riswick v. Goodhue, 753. 
 Van Valkenburgh v. Smith, 119. 
 Van Wj V. Clark, 1203. 
 Van Wyck v. Brasher, 981. 
 Varick v. Edwards, 394. 
 Varlo, Rex v., 377. 
 Varnum v. Meserve, 1051, 1054. 
 Vass V. Eiddick, 642. 
 Vasse V. Smith, 901. 
 Vaughan v. Fowler, 751. 
 
 V. Godman, 350. 
 
 V. Hancock, 1302. 
 
 V. Hines, 1354. 
 
 V. Porter, 70. 
 
 Vaughn v. Ferris, 130, 136, 773. 
 
 V. Sheridan, 1109. 
 
 V. Smith, 1264. 
 
 Vauxhall Bridge Co. v. Spencer, 501'. 
 Veach v. Thompson, 728. 
 Veal V. Fortson, 936. 
 Veazieu. Holmes, 1319. 
 
 V. Hosmer, 835. 
 
 ti. Somerby, 1309. 
 
 Veghte V. Raritan Water Power Co., 
 
 1327. 
 Vent I). Osgood, 917, 925, 938. 
 Vermont Mining and Quarrying Co. v. 
 
 Windham County Bank, 1028. 
 Vernon v. Keys, 664, 665. 
 
 Vertner v. Humphreys, 1211. 
 
 Vicary v. Moore, 164, 764. 
 
 Vicksburg, &c. Kailr. v. Eagsdale, 309. 
 
 Vilas V. Mason, 298. 
 
 Viual V. Richardson, 1266. 
 
 Vincennes Universityi).Indiana,557, 559. 
 
 Vincent v. Germond, 1319. 
 
 Vining v. Gilbreth, 1309. 
 
 Vinsen v. Lockard, 920. 
 
 Vinton v. Baldwin, 1420. 
 
 Violett V. Patton, 1230, 1247. 
 
 V. Powell, 1079, 1087. 
 
 Vischer, People v., 725. 
 
 Viser v. Rice, 1167, 1168, 1171. 
 
 Visher v. Webster, 83. 
 
 Vliet ti. Camp, 1168. 
 
 Volger V. Ray, 1158. 
 
 Von Hoffman v. Quincy, 561, 565. 
 
 Von Hurler v. Spengeman, 1074. 
 
 Von Windisch v. Klaus, 494. 
 
 Voorhees v. Combs, 187. 
 
 Voorhies v. Voorhies, 942. 
 
 Vose V. Dolan, 1167. 
 
 V. Grant, 216. 
 
 V. Handy, 1330. 
 
 Voss, United States v., 1111. 
 Votaw V. Diehl, 173. 
 Vreeland v. Bramhall, 708. 
 Vroman ;;. Darrow, 795. 
 VuUiamy i'. Noble, 858. 
 
 Waco Tap Railroad v. Shirley, 828. 
 Waddell v. Hewitt, 352. 
 Wadew. Bunn, 1168. 
 
 V. Haycock, 835, 1421, 1444. 
 
 V. Saunders, 673. 
 
 V, Withington, 750. 
 
 Wadley v. Jones, 1439. 
 Wadlington v. Hill, 404. 
 Wadsworth v. Sharpsteen, 977- 
 
 V. Sherman, 977. 
 
 V. Spain, 998. 
 
 V. Wadsworth, 999. 
 
 V. Wendell, 111. 
 
 Wagenblast v. McKean, 1434. 
 Waggeman v. Bracken, 348. 
 Waggoner v. Cox, 786. 
 Wagner, United States v., 998. 
 Wagoner v. Watts, 1046. 
 Wailing v. Toll, 234, 909. 
 Wain V. Warlters, 1247. 
 Wainwright v. Straw, 1258. 
 Wait V. Maxwell, 975, 977. 
 
 , Rex v., 814. 
 
 Wake V. Harrop, 1078. 
 Wakefield v. Greenhood, 1258. 
 Wakeman v. Dalley, 661. 
 Walcott V. Canfield, 869. 
 
 V. Harris, 1458. 
 
 Walden v. Bodley, 306. 
 
 685 
 
WAL 
 
 INDEX TO THE CASES CITED. 
 
 WAR 
 
 Walden v. Murdock, 1309. 
 Waldron v. Evans, 500. 
 
 V. Ritchings, 1389. 
 
 V. Young, 1174. 
 
 Wales V. Bogue, 1458. 
 
 V. Stetson, 560. 
 
 Walker v. American Nat. Bank, 1037. 
 
 V. Armstrong, 456. 
 
 V. Boynton, 382. 
 
 V. Brown, 187. 
 
 V. Chapman, 393. 
 
 y. Christian, 176. 
 
 V. Davis, 901. 
 
 V. Detroit Transit Railway, 1017. 
 
 V. Ellis, 938. 
 
 — - V. Fitts, 607. 
 
 V. Flint, 290,301. 
 
 w. Goodrich, 1335. 
 
 V. Gregory, 509. 
 
 V. Herring, 1038. 
 
 t'. Johnson, 1274. 
 
 V. McCulloch, 51, 857, 872. 
 
 V. Maxwell, 863. 
 
 V. Metropolitan Ins. Co., 154. 
 
 II. Mobile, &c. Railroad, 1226. 
 
 V. Mottram, 520. 
 
 V. Norton, 1265. 
 
 , People v., 1343. 
 
 V. Perkins, 509. 
 
 V. Skipwith, 1092. 
 
 V. State, 569. 
 
 V. Supple, 1315. 
 
 V. Swartwout, 994. 
 
 V. Tucker, 379, 579, 588, 591. 
 
 V. United States, 547. 
 
 V. Wait, 862, 1363. 
 
 V. Walker (7 Baxter, 260), 1109. 
 
 V. Walker (25 Ga. 76), 1358. 
 
 Wall V. Scales, 67. 
 Wallace v. Carpenter, 942. 
 
 V. Cook, 1052. 
 
 V. Harrastad (3 Harris, Pa. 462), 
 
 758. 
 V. Harmstad (8 Wright, Pa. 492), 
 
 758. 
 
 V. Kelsall, 870. 
 
 V. Lark, 535. 
 
 V. Latham, 942. 
 
 V. Lewis (4 Harring. Del. 75), 925. 
 
 V. Lewis (60 Texas, 247), 173. 
 
 V. Loomis, 304. 
 
 V. Matthews, 307. 
 
 r. Maxwell, 310. 
 
 V. Miner, 274. 
 
 V. Morss, 902. 
 
 V. Sanders, 596. 
 
 V. Wortham, 1260. 
 
 Waller v. Bank of Ky., 205, 238. 
 
 V. Logan, 849. 
 
 Wallis V. Carpenter, 1452. 
 V. Littell, 170. 
 
 686 
 
 Wallis V. Smith, 404, 1452. 
 
 V. Wallis, 42, 124. 
 
 Wallman v. Society of Concord, 1431. 
 Wallop V. Irwin, 859. 
 Wall work v. Derby, 413. 
 Walmesley v. Cooper, 875. 
 Walsh V. Lennon, 1151. 
 
 V. Mayer, 1362. 
 
 V. Miss. Valley Transp. Co., 449. 
 
 V. Trevanion, 407. 
 
 V. Vermont Mut. Fire Ins. Co., 355 
 
 V. Walsh, 903. 
 
 V. Whitcomb, 1051. 
 
 Walsingham's Case, 989. 
 Walter v. Ford, 361. 
 
 V. James, 844. 
 
 V. Post, 1299. 
 
 Walters v. Odom, 1 76. 
 Walton V. Burton, 355. 
 
 V. Mandeville, 1332. 
 
 Walworth v. Pool, 838. 
 Wambaugh v. Bimer, 1450. 
 Wambole «. Foote, 930, 1056. 
 Wanner v. Sisson, 709. 
 Waples V. Hastings, 930. 
 Ward V. Allen, 493. 
 
 V. Byrne, 517. 
 
 V. Henry, 214. 
 
 V. Hogan, 518. 
 
 V. Johnson, 871, 877. 
 
 V. Kadel, 827. 
 
 V. Kelly, 958. 
 
 f. Lambert, 42. 
 
 V. Leviston, 1 147. 
 
 V. The Little Red, 930. 
 
 u. Lloyd, 494. 
 
 V. Vance, 588. 
 
 V. Walton, 815. 
 
 y. Ward, 355. 
 
 V. Williams, 1226. 
 
 V. Wiman, 664, 685. 
 
 Warde v. Warde, 414. 
 Warder v. Arell, 1402. 
 
 V. Baker, 299. 
 
 V. Pattee, 1109. 
 
 Ware v. Adams, 1 266. 
 
 V. Cartledge, 920. 
 
 V. Cowles, 291. 
 
 V. Curry, 487. 
 
 u. Hylton, 1001. 
 
 V. Morgan, 58, 1119. 
 
 WarBeld w. Booth, 517. 
 Waring v. Favenck, 1087. 
 
 V. Mason, 244. 
 
 V. Smyth, 758. 
 
 Wark V. Willard, 277. 
 Warn v. Brown, 404. 
 Warner o. Booge, 93. 
 
 V. Campbell, 62. 
 
 V. Jaffray, 1382. 
 
 V. Martin, 1067. 
 
■WAT 
 
 INDEX TO THE CASES CITED. 
 
 WEE 
 
 Warren v. Bean, 1344. 
 
 V. Chapman, 487. 
 
 V. Gordon, 1458. 
 
 V. Hodge, 50. 
 
 V. Lynch, 111, 1404. 
 
 V. Mains, 805. 
 
 V. Manufacturers Ins. Co., 472. 
 
 t'. Kichmond, 828. 
 
 V. Smith, 1261. 
 
 V. Stoddart, 1421. 
 
 «. Swett, 352. 
 
 V. Tobey, 124. 
 
 V. Tyler, 834. 
 
 V. Walker, 75. 
 
 V. Whitney, 61, 99. 
 
 V. Williamson, 57. 
 
 Warring v. Williams, 765. 
 Warwick v. Bruce, 905, 911. 
 
 V. Cooper, 925. 
 
 V. Monteith, 1296. 
 
 Washabaugh v. Stauffer, 816. 
 Washburn v. Fletcher, 328. 
 Washington v. Dunn, 363. 
 Washington Bank v. Farmers Bank, 40. 
 Washington Ice Co. v. Webster, 1244. 
 Washington Savings Bank v. Ecky, 755. 
 Watchman v. Crook, 217, 404. 
 Waterman v. Barratt, 720. 
 
 V. Buckland, 534. 
 
 V. Dutton, 707. 
 
 V. Meigs, 1313, 1316. 
 
 Waters v. Barral, 964. 
 
 V. Bean, 44. 
 
 V. Lemmon, 830. 
 
 i;. Riley, 865. 
 
 v. Thanet, 1357. 
 
 Watkins v. Lawton, 903. 
 
 V. Nash, 113, 356, 357. 
 
 V. Watkins, 1237. 
 
 V. Willis, 1439. 
 
 Watrous v. McKie, 381. 
 Watson V. Brewster, 1404, 1409. 
 — V. Brightwell, 1303. 
 
 V. Charlemont, 653. 
 
 V. Dunlap, 89. 
 
 V. Erb, 1237. 
 
 V. Hensel, 911. 
 
 V. Jacobs, 1261. 
 
 W.King, 1051, 1054. 
 
 V. Ledoux, 210, 220, 236. 
 
 V. Mahan, 1237. 
 
 V. Pears, 1339. 
 
 V. Picket, 665. 
 
 V. Poulson, 296. 
 
 V. Sherman, 1046. 
 
 V. Spratley, 1315. 
 
 V. Walker, 1434. 
 
 Watt V. Hoch, 445, 446. 
 
 V, Sheppard, 1452. 
 
 Watterson v. Lyons, 270. 
 Watts'a Appeal, 1062. 
 
 Watts I'. Brooks, 671, 683. 
 
 V. Devor, 1104. 
 
 Watuppa Reservoirs. Mackenzie, 1012, 
 Waugh V. Blevins, 815. 
 
 V. Bussell, 751. 
 
 V. Middleton, 402. 
 
 V. Shunk, 1416, 1417. 
 
 Waul V. Ilardie, 246. 
 
 V. Kirkman, 1246. 
 
 Way V. Arnold, 277. 
 
 V. Stebbins, 270. 
 
 Wayman v. Taylor, 274. 
 Wayne K. Duffy, 1343. 
 
 V. The General Pike, 404. 
 
 Wear v. Jacksonville, &c. Railroad, 1436. 
 Wear Commissioners v. Adamson, 590. 
 Weare V. Gove, 1120. 
 
 , State v., 374. 
 
 Weatherby y. Banham, 218. 
 Weatherly v. Higgins, 834. 
 Weaver, In re, 968. 
 
 V. Carnal], 1078. 
 
 V. Carpenter, 645, 942. 
 
 V. Jones, 925. 
 
 V. McElhenon, 377. 
 
 V. Waterman, 495. 
 
 Webb V. Baird, 348. 
 
 V. Brooke, 472. 
 
 V. Corbin, 346. 
 
 V. Fairmaner, 1339, 1341, 1439. 
 
 V. Goldsmith, 53. 
 
 V. Smith (40 Ark. 17), 1354. 
 
 V. Smith (6 Colo. 365), 1422. 
 
 Webber v. Howe, 479, 1389. 
 
 V. Maddocks, 763. 
 
 Webbers v. Blunt, 486. 
 Weber v. Clark, 1420. 
 
 V. Couch, 50. 
 
 V. Marshall, 1237. 
 
 Webster v. Blount, 372. 
 
 V. Buffalo Ins. Co., 1012, 1023. 
 
 V. Coffin, 1426. 
 
 V. Ela, 390. 
 
 V. Enfield, 828. 
 
 V. Lamed, 1119. 
 
 V. Laws, 70. 
 
 V. Potter, 251. 
 
 V. Rees, 439. 
 
 V. Sturges, 534. 
 
 V. Wade, 838. 
 
 y. Wise, 1180. 
 
 r. Woodford, 971. 
 
 K. Zielly, 1243. 
 
 Weckler v. First National Bank, 100.5. 
 Weed V. Beebe, 939. 
 
 v. Black, 501. 
 
 V. Burt, 838. 
 
 V. Weed, 462, 704. 
 
 Weed Sewing Machine Co. v. Maxwell, 
 
 949. 
 Weedon v. Wallace, 497. 
 
 687 
 
"WKS 
 
 INDEX TO THE CASES CITED. 
 
 WHI 
 
 Weeks v. Hull, 1343. 
 
 K. Little, 1344. 
 
 V. Maillardet, 382, 775. 
 
 V. Merrow, 234. 
 
 Wehrli v. Rehwoldt, 816. 
 
 Wehrura v. Kuhn, 56, 57. 
 
 Weideu v. Woodruff, 325. 
 
 Weidler v. Kauffman, 1179. 
 
 Weidman v. Hubble, 277. 
 
 Weimer v. Clement, 244. 
 
 Weintz v. Hafner, 828. 
 
 Weiru. Hill, 1235. 
 
 Weisel v. Spence, 1263. 
 
 Weisenfeld v. Mispelhorn, 311. 
 
 Welch V. Bunce, 938. 
 
 V. Goodwin, 426. 
 
 , State v., 530. 
 
 V. Welch, 921, 928. 
 
 Weld V. Lancaster, 503. 
 
 V. Nichols, 768. 
 
 Weller's Appeal, 346. 
 
 Wellington v. Jackson, 345. 
 
 V. Kelly, 496. 
 
 Wells V. Atkinson, 391 
 
 V. Barnett, 723. 
 
 ij. Calnan, 588. 
 
 c. Evans, 875. 
 
 U.Gates, 1156, 1162. 
 
 V. Hatch, 1129. 
 
 V. Miller, 216. 
 
 V. Milwaukee and St. Paul Rail- 
 way, 322. 
 
 V. Pacific Ins. Co., 414. 
 
 V. People, 469, 472. 
 
 , Rex v., 991. 
 
 B. Sutton, 512. 
 
 V. Turner, 1159. 
 
 V. Wells, 894. 
 
 V. Williams, 1000. 
 
 «. Wright, 386. 
 
 Welman, In re, 1340. 
 
 Welz V. Rhodius, 164. 
 
 Wenoe v. Wykoff, 223. 
 
 Wendlinger v. Smith, 357. 
 
 Wennall v. Adney, 44, 95. 
 
 Wentworth v. Cock, 861. 
 
 V. Tubb, 232. 
 
 V. Wentworth, 70. 
 
 Werner's Appeal, 909. 
 
 Werner v. Humphreys, 603, 861. 
 
 West «. Blakeway, 131. 
 
 V. Cunningham, 244. 
 
 V. Gregg, 920. 
 
 u. Penny, 925, 944. 
 
 V. Piatt, 803. 
 
 V. Russell, 963. 
 
 V. The Uncle Sam, 590, 592. 
 
 WestBoylstonManuf.Co. v. Searle, 1139. 
 
 West London Commercial Bank v. Re- 
 liance, &c. Soc. 14. 
 
 West River Bridge v. Dix, 573. 
 
 West Virginia Transp. Co. v. Ohio River 
 
 Pipe Line Co., 1191. 
 Westbrook v. Moore, 1459. 
 Westchester Fire Ins. Co. v. Earle, 154, 
 
 766, 767. 
 Westerman v. Means, 1453. 
 Western v. Russell, 45. 
 
 V. Sharp, 187. 
 
 Western Bank v. Kyle, 794. 
 Western N.Y. Life Ins.Co. v. Clinton, 372. 
 Western Screw, &c. Co. v. Cousley, 221. 
 Western Union Tel. v. American Union 
 
 Tel., 513, 518. 
 
 V. Atlantic, &c. Tel., 525. 
 
 V. Buchanan, 458. 
 
 V. Chicago, &o. Railroad, 518. 
 
 V. Union Pacific Railway, 525. 
 
 Westfall V. Arsons, 1234. 
 Westheimer v. Peacock, 1230. 
 Westman v. Krumweide, 170, 357. 
 Weston V. Hodgkins, 1362. 
 
 V. Metropolitan Asy. Dist., 787. 
 
 Wetherell v. Jones, 472. 
 Wetter w. Kiley, 1180. 
 Wetzell V. Bussard, 1362. 
 Whaley v. Peak, 210, 253. 
 Wharton v. Anderson, 50. 
 
 V. Mackenzie, 234, 909. 
 
 V. O'Hara, 71. 
 
 V. Stoutenburgh, 1244, 1248. 
 
 Wheatcroft v. Hickman, 1 144. 
 Wheaton v. East, 917, 942. 
 Wheeden v. Piske, 816. 
 Wheeler w. Cox, 1127. 
 
 V. Garsia, 1436, 1437. 
 
 V. Knaggs, 1051. 
 
 V. Nevins, 1045. 
 
 V. Newton, 1289. 
 
 V. Reed, 1076. 
 
 V. Russell, 471. 
 
 V. Wheeler, 874. 
 
 V. Willard, 1121. 
 
 Wheeler, &c. Manuf. Co. v. Givan, 1062. 
 Wheeler & Wilson Manuf. Co. v. Long, 
 
 346. 
 Wheeling, &c. Railroad v. Gourley, 413. 
 Wheelock v. Freeman, 755. 
 Wheelwright v. Wheelwright, 352, 361. 
 Whelan v. McCreary, 740, 1121. 
 
 V. Sullivan, 1249. 
 
 V. Whelan, 658, 733, 741. 
 
 Whelden v. Chappel, 541. 
 Whelpdale's Case, 728. 
 Whincup V. Hughes, 241, 601. 
 Whinnet v. Jones, 260. 
 Whipple V. Dow, 1444. 
 
 «. Stevens, 1363. 
 
 Whitaker v. Hawley, 166. 
 
 V. Miller, 346, 1167, 1168. 
 
 Whitbeck v. Whitbeck, 1304. 
 Whitcher v. McConnell, 1363. 
 
WHI 
 
 INDEX TO THE CASES CITED. 
 
 Wlh 
 
 Whitcomb v. Minchin, 881. 
 
 u. Whiting, 870. 
 
 White V. Allen, 603. 
 
 e. Brocaw, 1203. 
 
 V. Buss, 471, 535. 
 
 V. Butt, 1292. 
 
 V. Cooper, 1098. 
 
 V. Core, 349, 358, 1249. 
 
 V. Corlies, 329. 
 
 V. Cox, 734, 984. 
 
 V. Crutcher, 1343. 
 
 V. Cuyler, 1071. 
 
 V. Day, 1420. 
 
 !). Flora, 45. 
 
 V. Franklin Bank, 489. 
 
 K. Garden, 671, 672, 673, 676. 
 
 V. Gray, 50. 
 
 V. Hanchett, 1274. 
 
 V. Hancock, 787. 
 
 V. Heylman, 632. 
 
 V. Howard, 1396. 
 
 V, Johns, 751. 
 
 u. Jones, 220. 
 
 V. Leigh ton, 1102. 
 
 V. Luning, 408. 
 
 B. Mann, 605. 
 
 V. Maynard, 153. 
 
 V. Patten, 277. 
 
 V. Proctor, 1038. 
 
 V. Eoss, 304. 
 
 V. Sanders, 1226. 
 
 V. San Rafael, &c. Railroad, 767. 
 
 V. Skinner, 1120. 
 
 V. Smith (51 Ala. 405), 1303. 
 
 V. Smith (9 Casey, Pa. 186), 402. 
 
 V. Smith, (37 Mich. 291), 317. 
 
 1-. Walker, 130. 
 
 V. Webster, 1263. 
 
 V. White, 707. 
 
 White Mountains Railroad v. White 
 
 Mountains (N. H.) Railroad,. 1021. 
 White's Bank v. Toledo, &c. Ins. Co., 
 
 1005, 1012. 
 Whitefield v. Longfellow, 717, 721. 
 Whitehead v. Hellen, 29, 880. 
 
 w. Lord, 1051, 1355. 
 
 V. Potter, 76. 
 
 V. Root, 1316. 
 
 V. Tuckett, 1092, 1094, 1103. 
 
 Whitehurst v. Boyd, 382. 
 
 V. Rogers, 270. 
 
 Whitesell v. Heiney, 1303. 
 Whitford v. Laidler, 348, 1018. 
 Whithead !». Keves, 1126. 
 Whiting V. Daniel, 1167, 1170. 
 
 V. Dewey, 408, 1077. 
 
 V. Heslep, 136. 
 
 V. Sullivan, 187. 
 
 Whitmarsh v. Hall, 921. 
 
 V. Walker, 1294. 
 
 Whitnash, Rex v , 536. 
 
 44 
 
 Whitney v. Bigelow, 1360. 
 
 V. Cochran, 1239. 
 
 !>. Coleman, 111. 
 
 V. Cook, 56. 
 
 w. Dutch, 917, 930, 937, 943, 944. 
 
 V. Marline, 1 121 . 
 
 V. Slayton, 517, 1458. 
 
 V. Snyder, 647. 
 
 V. Swett, 1327. 
 
 V. Wyman, 1119. 
 
 Whitney Arms Co. v. Barlow, 1 01 2, 1 023. 
 Whitsett V. Clayton, 54. 
 
 V. Womack, 383. 
 
 Whitson V. Fowlkes, 768. 
 Whittaker v. Howe, 516, 517. 
 
 V. Hueske, 244. 
 
 Whittemore v. Adams, 1371, 1405. 
 
 V. Gibbs, 1315. 
 
 Whitten v. Whitten, 950. 
 Whittingham's Case, 936. 
 Whittington v. Roberts, 1347. 
 Whitworth v. Ballard, 1056. 
 
 iv Erie Railway, 457. 
 
 WhywaJl v. Champion, 911. 
 Widner v. Lane, 1225. 
 Widoe V. Webb, 59, 487. 
 Wiener ti. Whipple, 1244. 
 Wier V. Simmons, 418. 
 Wiggin V. Bush, 495. 
 
 V. Day, 667, 673. 
 
 V. Peters, 1341, 1342. 
 
 ?). Wiggin, 465. 
 
 Wiggins V. Keizer, 86, 1274. 
 Wiggins Ferry Co. v. Chicago, &c. Rail- 
 road, 525. 
 
 V. Ohio, &o. Railway, 518, 520. 
 
 Wigglesworth v. Steers, 983. 
 Wight V. Rindskopf, 492, 522. 
 Wigston, Rex v., 917. 
 Wiftur ». How, 528. 
 Wilbum V. Larkin, 1071. 
 Wilby V. Phinney, 238. 
 Wilcox V. Davis, 572. 
 
 V. Henry, 1001. 
 
 V. Howland, 720, 723. 
 
 0. Jackson, 1358. 
 
 V. Roath, 937, 943. 
 
 Wild V. Williams, 875. 
 Wilder v. Ranney, 1088, 1089 
 
 , United States v., 1363. 
 
 V. Weakley, 233, 970. 
 
 Wildes V. Dndlow, 1265. 
 Wildey v. Collier, 499. 
 Wildman v. Taylor, 165, 382. 
 Wildrick v. Swain, 958. 
 Wiley V. Moor, 1168, 1174. 
 
 V. Shank, 1077. 
 
 V. Shoemak, 1436. 
 
 Wilhelm v. Caul, 795. 
 Wilie V. Brooks, 942. 
 Wilkes V. Broadbent, 455. 
 
 689 
 
WIL 
 
 INDEX TO THE CASES CITED. 
 
 "WIL 
 
 Wilkes V. Ferris, 1209. 
 Wilkie V. Womble, 834. 
 Wilkins v. Pearce, 1145. 
 Wilkinson v. Byers, 57. 
 
 V. Cook, 598. 
 
 V. Lindo, 875. 
 
 V. Rogers, 1191. 
 
 V. Scott, 75. 
 
 V. Tousley, 531. 
 
 V. Tranmarr, 380, 395. 
 
 Wilks V. Atkinson, 1316. 
 
 V. Back, 1071. 
 
 Willard v. Stone, 925. 
 
 Willcox V. Jackson, 983. 
 
 Willcuts V. Northwestern Mut. Life Ins. 
 
 Co., 450. 
 Willenborg v. Illinois Cent. Railr., 203. 
 Willett V. Forman, 690. 
 Williams, Ex parte, 148. 
 Williams's Case, 653. 
 Williams v. Bank of Michigan, 1 156. 
 
 V. Bayley, 492, 727, 733, 740, 741. 
 
 1). Birbeck, 1105. 
 
 V. Brown, 921, 925. 
 
 V. Bugbee, 96. 
 
 V. Butler, 1108, 1223. 
 
 V. Carr, 1382. 
 
 B. Carrington, 874. 
 
 V. Colby, 630. 
 
 V. Davidson, 1013. 
 
 V, Davis, 1 254. 
 
 V. Dyde, 96. 
 
 V. Evans, 1134. 
 
 V. Getty, 1103. 
 
 V. Greer, 116. 
 
 V. Harrison, 933. 
 
 u. Hathaway, 387. 
 
 0. Higgins, 357. 
 
 V. Hitchings, 873. 
 
 V. Inabnet, 980, 986. 
 
 V. Jones, 141. 
 
 V. Ketchum, 680. 
 
 V. Kimball, 793. 
 
 V. Maull, 950. 
 
 B. Millington, 1133. 
 
 u. Mitchell, 1092. 
 
 V. Moor, 925. 
 
 V. Moore, 864, 865. 
 
 V. Norris, 942. 
 
 B. Paul, 542. 
 
 V. Phelps, 724. 
 
 !). Pomeroy Coal Co., 1357. 
 
 «. Poor, 1134. 
 
 V. Powell, 740. 
 
 1>. Robinson, 1249. 
 
 B. Rogers, 1264. 
 
 «. Schatz, 353, 361. 
 
 V. Schmidt, 1421. 
 
 V. School District, 1089. 
 
 B. Scott, 62. 
 
 V. Stanton, 52. 
 
 Williams v. StoU, 346. 
 
 V. Tiedemanu, 534. 
 
 V. United States, 66. 
 
 B. United States Bank, 1431. 
 
 V. Vance, 1452. 
 
 V. Vanderbilt, 605. 
 
 B. Walker, 1061. 
 
 B. Wells, 290. 
 
 V. Wentworth, 232, 968. 
 
 V. Williams, 44.5, 1184. 
 
 B. Wilson (1 Dana, 157), 830. 
 
 V. Wilson (4 Sandf. Ch. 379), 65. 
 
 Williamson b. Baley, 535. 
 
 0. Beckham, 14. 
 
 B. Chicago, &c. Railroad, 525. 
 
 V. Clements, 61. 
 
 V. McClure, 372. 
 
 B. Reddish, 176. 
 
 B. Sammons, 243. 
 
 V. Watts, 916. 
 
 V. Wilson, 862. 
 
 V. Tingling, 1300. 
 
 Williamsport, &c. Railroad v. Common- 
 wealth, 989. 
 Willing B. Peters, 51, 100. 
 Willings V. Consequa, 869, 877. 
 Willion V. Berkley, 114, 989, 990. 
 Willis B. Dyson, 1145. 
 
 B. Gammill, 50. 
 
 B. Martin, 402, 1112. 
 
 B. Twambly, 1180. 
 
 Willison V. Patteson, 1000. 
 Willoughby v. Backhouse, 51. 
 Wills B. Ross, 1249. 
 
 V. Stiles, 306. 
 
 Willson V. Nicholson, 1018. 
 Wilmington, &c. Railroad «. King, 567. 
 Wilmouth V. Patton, 1436. 
 Wilson, In re, 1459. 
 
 V. Baumau, 444. 
 
 w. Bigger, 980. 
 
 B. Bozeman, 488. 
 
 V. Branch, 942. 
 
 V. Cheshire, 1 205. 
 
 V. Cobb, 296. 
 
 V. Cromwell, 689. 
 
 y. Dame, 1108. 
 
 B. Edmonds, 92, 1053. 
 
 V. Ensworth, 509. 
 
 V. Henderson, 764. 
 
 V. Hentges, 1263. 
 
 U.Hill, 821. 
 
 ■ V. Hunter, 1151. 
 
 B. Irish, 829. 
 
 V. Kearsc, 9 1 9. 
 
 B. Lee's Summit, 319. 
 
 V. McMillan, 230, 1208. 
 
 V. Martin, 1302. 
 
 B. Maryland Life lus. Co., 465. 
 
 V. Milligan, 542. 
 
 V. Nason, 1062. 
 
WOL 
 
 INDEX TO THE CASES CITED, 
 
 WOO 
 
 Wilson V. Oldham, 958, 964. 
 
 V. Randall, 372. 
 
 V. Sergeant, 238. 
 
 V. Sherflfbillich, 290. 
 
 1>. Short, 226. 
 
 V. South Park, 1168. 
 
 V. Stratton, 1309. 
 
 V. Vaughn, 300. 
 
 V. Wilson (.')2 Iowa, 44), 223. 
 
 V. Wilson (5 H. L. Cas. 40), 383. 
 
 Wilson Sewing Machine Co. v. Rut- 
 ledge, 175. 
 Wilt V. Welsh, 920. 
 Wimmer v. Ficklin, .309. 
 Winans v. Hassey, 176. 
 Winberry v. Eoonce, 76. 
 Winchell ». Edwards, 298. 
 Winchester v. Gaddy, 1207. 
 
 V. Nutter, 531. 
 
 Winder v. Blake, 453. 
 Windham v. Doles, 68. 
 Windland v. Deeds, 223. 
 Windsor v. Jacob, 1378. 
 Winebrinner v. Weisiger, 509. 
 Winfield v. Dodge, 542. 
 Winfrey v. Drake, 825. 
 Wing V. Chase, 51. 
 
 V. Clark, 1309. 
 
 V. Peck, 119. 
 
 Wingard v. Tift, 1300. 
 
 Wingate v. Neidlinger, 680. 
 
 Wingo V. Browu, 190. 
 
 Winn's Succession, 178. 
 
 Winn V. Bull, 319. 
 
 Winona ». Minnesota E. Constr. Co., 418. 
 
 Winpenny v. French, 499. 
 
 Winslow V. Bailey, 689. 
 
 V. Cooper, 295. 
 
 V. Patten, 414. 
 
 V. Winslow, 390, 416, 890. 
 
 Winsor v. Savage, 211. 
 Winston v. Dalby, 872. 
 Winter v. Bandel, 652. 
 
 i). Coit, 1140. 
 
 «. Hite, 1253. 
 
 B. Jones, 567. 
 
 V. Kinney, 486. 
 
 Winton v. Wilks, 446. 
 Wintz V. Morrison, 660. 
 Wire V. Poster, 1432. 
 Wirebach v. Easton Bank, 970. 
 Wiseman v. Lyman, 1445. 
 Wiser w. Blachly, 111. 
 Witbeck v. Waine, 129. 
 Withers v. Jenkins, 352. 
 
 V. Larrabee, 1302. 
 
 V. Richardson, 1275. 
 
 Witte V. Derby Fishing Co., 1014. 
 Wolcott V. Heath, 836. 
 Wolf V. Dietzsch, 836 
 ' V. Dozer, 1230. 
 
 Wolf V. Gerr, 1445. 
 
 V. Marsh, 1426. 
 
 Wolfe V. McClure, 393. 
 
 V. Scarborough, 380. 
 
 Womack v. Womack, 940. 
 
 Wood V. Abrcy, 738. 
 
 V. Auburn, &e. Railroad, 1096. 
 
 V. Bibbins, 382. 
 
 V. Clapp, 1416. 
 
 V. Commonwealth, 1343. 
 
 V. Copper Miners Co., H5. 
 
 V. Corcoran, 898, 1261. 
 
 V. Corl, 431. 
 
 V. Fisk, 865. 
 
 V. Garland, 830. 
 
 V. Goodrich, 690. 
 
 V. Hardisty, 255, 
 
 V. Hickok, 452. 
 
 V. Jones, 1235. 
 
 V. Leadbitter, 1299, 1300. 
 
 V. Losey, 234. 
 
 V. McCain, 1223. 
 
 V. Manley, 1300. 
 
 V. O'Kelley, 190, 1147. 
 
 V. Owings, 105. 
 
 V. Robinson, 673. 
 
 V. Warden, 950. 
 
 V. Willis, 108. 
 
 Woodall V. Greater, 169. 
 
 Woodbum v. Cogdal, 1309. 
 
 V. Stout, 615. 
 
 Woodbury v. Knox, 1057. 
 
 Woodcock V. McQueen, 530. 
 
 Wooden t'. Shotwell, 75. 
 
 Woodford v. Leavenworth, 211 
 
 V. Patterson, 1316. 
 
 Woodin V. Durfee, 348. 
 
 Wooding V. Bradley, 1094. 
 
 Woodruff V. Berry, 523. 
 
 V. McGehee, 1080. 
 
 V. Noyes, 802. 
 
 V. Parham, 50. 
 
 V. Scruggs, 571. 
 
 V. Wentworth, 525. 
 
 Woods «. Armstrong, 472. 
 
 V. Hynes, 647. 
 
 V. Miller, 454. 
 
 V. North, 1427. 
 
 w. Pindall, 981. 
 
 V. Ridley, 1385. 
 
 V. Schlater, 70. 
 
 V. State, 393. 
 
 V. Williams, 855. 
 
 Woodward v. Camp, 353. 
 
 V. Campbell, 993. 
 
 V. Fels, 71. 
 
 V. Fox, 990. 
 
 V. Harlow, 1109. 
 
 V. Miles, 768. 
 
 V. Newhall, 871. 
 
 V. Woodward, 1269. 
 
 691 
 
W3nM 
 
 INDEX TO THE CASES CITED. 
 
 ZUL 
 
 Woodworth v. Kissara, 682. 
 
 V. Wilson, 328. 
 
 Wookey u. Pole, 1186. 
 Wooley «. Batte, 216. 
 
 V. Edson, 287. 
 
 Woolfei). Home, 1133. 
 WooUey v. Constant, 775, 1168. 
 
 V. Staley, 1445. 
 
 VVoolner v. Hill, 795. 
 Wooten V. Miller, 1379. 
 
 V. Read, 835. 
 
 Wooton V. Hinkle, 528. 
 Worcester v. Eaton (11 Mass. 368), 627, 
 629. 
 
 V. Eaton (13 Mass. 371), 927, 936. 
 
 V. Railroad Commissioners, 1089. 
 
 Word V. Gavin, 243. 
 Workman v. Campbell, 1223. 
 
 V. Wright, 846, 847. 
 
 Worley v. Moore, 702. 
 Wormer, United States v., 828. 
 Worminghall, Rex v., 1338. 
 Worrallw.Munn,356,357,1045,1096,1289. 
 Worsley v. Wood, 1422. 
 Worth V. Case, 45. 
 Worthington v. Hylyer, 117. 
 Worthy v. Jones, 1276. 
 Wray v. Chandler, 57. 
 
 V. Wray, 688, 964. 
 
 Wright V. Bartlett, 62. 
 
 V. Burbank, 1223. 
 
 !'. Calhoun, 1112. 
 
 c. Crabbs, 481, 489. 
 
 0. De Grofr, 1292. 
 
 V. Gay, 1216. 
 
 V. Germain, 937. 
 
 V. Hart, 244. 
 
 V. Haskell, 828. 
 
 !'. Irwin, 87. 
 
 V. Pulham, 1148. 
 
 0. Remington, 727. 
 
 V. Sill, 563. 
 
 V. Solomon, 1103. 
 
 V. Stavert, 1302. 
 
 v. Steele, 925. 
 
 V. Thomas, 293, 783. 
 
 V. Wakeford, 112. 
 
 V. Walker, 740. 
 
 V. Weeks, 164, 1249. 
 
 V. Wright (54 N. Y. 437), 67. 
 
 V. Wright (2 Halst. 175), 755, 881. 
 
 Wrisley o. Kenyon, 903. 
 
 Wrotesley v. Adams, 445, 
 
 Wry V. Cutler, 708. 
 
 Wunderlin v. Cadogan, 1167, 1168. 
 
 Wyche v. Greene (II Ga. 159), 732. 
 
 V. Greene (26 Ga. 415), 702. 
 
 Wyckoff V. Victor Sew. Mach. Co , 358. 
 Wyman v. American Powder Co., 190. 
 
 V. Goodrich, 153. 
 
 V. Heald, 689. 
 
 692 
 
 Wyman v. Smith, 1265. 
 Wynn v. Wood, 1264. 
 Wynne's Case, 424. 
 Wynne ». Cornelison, 673. 
 
 V. Jackson, 1386. 
 
 Wythe V. Salem, 296. 
 
 Xenos V. Wickham, 352, 1136. 
 
 Yale V. Flanders, 393. 
 
 V. Rex, 487. 
 
 Yard v. Yard, 742. 
 Yardley v. Arnold, 237. 
 Yates V. Bond, 243. 
 
 V. Freckleton, 1029, 1067. 
 
 V. United States, 413. 
 
 Yauger v. Skinner, 977. 
 
 Ybarra v. Lorenzana, 489. 
 
 Yea V. Fonraker, 1362. 
 
 Yeager v. Wallace, 1144. 
 
 Yeakle v. Jacob, 1294. 
 
 Yeates u. Williams, 471. 
 
 Yeoman v. Lasley, 679. 
 
 Yerby v. Grigsby, 1049. 
 
 Yerkes v. Salomon, 534. 
 
 Yetter v. Hudson, 1452. 
 
 Yingling v. Kohlhass, 1184. 
 
 Yniestra v. Tarleton, 1358. 
 
 Yoakley v. Hawley, 1129. 
 
 Yonge V. Hooper, 740. 
 
 York V. Merritt, 522. 
 
 York County Bank v. Stein, 1103. 
 
 Yosti V. Laughran, 658. 
 
 YoughioghenyIron,&c.Co.w.Smith,1079. 
 
 Young V. Adams, 699. 
 
 V. Austen, 1239. 
 
 V. Bell, 925. 
 
 V. Billiter, 616. 
 
 V. Dake, 1302. 
 
 V. Daniels, 1347. 
 
 V. Harris, 1385, 1389. 
 
 0. Harrison, 559. 
 
 V. Hill, 90. 
 
 «. McKee, 939. 
 
 V. Royal Leamington Spa, 634. 
 
 , State v., 544, 1168. 
 
 V. Stevens, 818. 
 
 V. White, 1211. 
 
 Zabel I'. Schroeder, 1235. 
 
 Zacharie v. Godfrey, 1000. 
 
 Zane v. Cawley, 705. 
 
 Zann v. Haller, 343. 
 
 Zearing v. Raber, 249. 
 
 Zimmerman v. Sale, 345. 
 
 Zimmler v. San Luis Water Co., 274, 276. 
 
 Zipcey v. Thompson, 1370. 
 
 Zouch V. Claye, 775. 
 
 Zuck V. Culp, 1354. 
 
 V. McClure, 839. 
 
 Zulkee v. Wing, 246. 
 
INDEX OF SUBJECTS. 
 
 The Italic Lines — indicate that the searcher should turn to the body of the 
 book and consult the section heads. 
 The Figures — denote the sections. 
 
 ABANDONED PROPERTY, rights to, 236. 
 ABANDONMENT OF CONTRACT, 
 
 Contract created by law after, full, 1441-1447. 
 
 no recovery on contract after, 835. 
 ABATEMENT, of suit by party's death, 859. 
 ABBREVIATIONS, courts judicially recognize what, 377. 
 
 in names, explainable, 117. 
 ABILITY, contract to do what exceeds one's, 579, 582, 590, 591. 
 
 misrepresentation of one's own, as fraud, 667. 
 
 destroying one's, to perform, as breach, 1426. 
 ABROAD, principal in contract residing, agent bound, 1076. 
 ABROGATE, (See Rescission.) 
 
 simple contract, how, 174 ; how specialty, 180, 134. 
 ABUSE OF PROCESS, duress by, 721. 
 " ACCEPT," meaning of, in Statute of Frauds, 1819. 
 ACCEPTANCE, whether oral, good, 157, 1332. 
 
 of instrument, an element iu delivery, 350, 351; presumed, 351. 
 
 of thing done under contract, as waiver, 805. 
 
 of contract procured by fraud, 645. 
 
 of offer, 322, 323, 328-333. 
 
 of manufactured article, effect of, 801. 
 
 of benefit, ratifies contract, 1226. 
 ACCIDENT, (See Mistake.) 
 
 alteration of contract by, 753 ; may be erased, 756. 
 
 as excusing performance, 590. 
 ACCORD AND SATISFACTION, 
 
 may be, of specialty, 132 ; a sufficient consideration, 56. 
 
 how plead, 211, note. 
 ACCOUNT, ACCOUNTS, 
 
 when legal and illegal items in, separable, 487. 
 
 agent must render proper, 1121. 
 
 whether "goods, wares, and merchandise," 1315. 
 
 693 
 
ADIT INDEX OP SUBJECTS. 
 
 ACCOUNTANT, investigating committee may employ an, 1061. 
 ACCRETIONS, contract may be built up by, 885. 
 ACKNOWLEDGING GOOD, validating forgery by, 847. 
 ACKNOWLEDGING SIGNATURE, equivalent to signing, 345. 
 ACKNOWLEDGMENT, (See Fresh Acknowledgment.) 
 
 of deed, office and effect of, 363. 
 
 how the, of corporation's deed, 1018. 
 ACQUIESCENCE. (See Affirmance.) 
 
 ACQUISITIONS, agent's, accrue to principal, 1074. 
 ACT OF GOD, (See Impossible.) 
 
 defined, 593 ; excuses common carrier, 432, 596. 
 
 creates the impossible, 584. 
 
 preventing fulfilment of condition precedent, 586. 
 
 excusing performance of contract, 590, 592. 
 
 not free one from rent covenants, 598. 
 
 agi-eement to pay damages arising from the, valid, 582, 590. 
 ACT OF LAW, (See Impossible.) 
 
 viewed as creating the impossible, 584. 
 
 excusing performance, 590, 594 
 ACT OF PUBLIC ENEMY, (See Impossible.) 
 
 defined, 593 ; creating impossible, 584. 
 
 excusing performance, 590, 592. 
 
 excuses common carrier, 596. 
 
 not free one from covenants to pay rent, 598. 
 ACTED FALSEHOOD, as fraud, 659. 
 ACTION, (See Cause of Action — Deceit — Right.) 
 
 Hmo, on contract between others for one's benefit, full, 1214-1227. 
 ACTOR, in unlicensed theatre, whether recover pay, 482. 
 ACTUAL CONTRACT, 
 Presumed, full, 257-263. 
 
 Wliat, of infant, is absolutely valid, full, 917-923. 
 ADJUDGED CASES, (See Judicial Decisions.) 
 
 how legal doctrine formulated from the, 217, note. 
 
 how of the, as to capacity of infant, 935. 
 
 difference in, on law of agency, 1090. 
 
 not operate as legislation, 1123. 
 ADMINISTRATION OF JUSTICE. (See Judicial Justice.) 
 
 ADMINISTRATOR, (See Executor.) 
 
 carry out what contracts, 600, 603. 
 
 infant's, affirming or disaffirming, 936 ; insane person's, 974. 
 
 personally bound by what form of promise, 1252, 1253. 
 ADMINISTRATORS AND EXECUTORS, 
 
 Promises by, under Statute of Frauds, full, 1250-1259. 
 " ADMR.," abbreviation, judicially recognized, 377. 
 ADULT, (See Infant.) 
 
 promises between, and infant, 78. 
 
 whether contract with infant binds the, 905. 
 
 can make contracts through agents, 1026. 
 694 
 
INDEX OP SUBJECTS. AGE 
 
 ADVERSE CLAIM, to land, one estopped to set up, 300. 
 ADVERTISEMENT, withdrawing ofier of reward, 332. 
 
 notifying dissolution of partnership, 1148. 
 ADVICE, effect of, on contract by insane person, 964. 
 AFFECTION. (See Love and Affection.) 
 
 AFFIRMANCE, (See Part Affirmance — Ratification ) 
 
 Of the contract, full, 844-849. 
 no rescission after, 680, 829. 
 AFFIRMANCE AND DISAFFIRMANCE, 
 
 By infant, of Ms voidable contract, full, 936-945. 
 AFFREIGHTMENT, war dissolves contract of, 594. 
 AFTER- ACQUIRED TITLE. (See Title.) 
 
 AGAINST LAW, (See Unlawful Contracts.) 
 
 agreement to do what is, void, 470. 
 AGAINST SUBJECT, contract with government construed, 990. 
 AGE, immature, combining with other impairing things, 736. 
 how compute, as to infancy, 894. 
 false pretence by infant of being of, 902, 903. 
 one imbecile from, insane as to contract, 958. See Insane Person. 
 varying as to infant's power of contract, 946. 
 compared with age in law of crimes, 946. 
 AGENCY, (See Agent.) 
 
 How created, full, 1042-1049. 
 How terminated, full, 1050-1056. 
 
 Law of, in contracts by unincorporate associations, full, 1154-1164. 
 Doctrine of , as to filling blanks, full, 1165-1176. 
 agent impliedly warranting his, 247. 
 partnership as branch of law of, 1143, 1144. 
 AGENT, AGENTS, 
 
 Contracts by and through, full, 1025-1122; namely, general doctrine of 
 agency, 1026-1033 ; who may be the, 1034-1041 ; how the agency is 
 created, 1042-1049 ; how terminated, 1050-1056 ; express and im- 
 plied powers of, 1057-1068; manner and forms of contract by, 
 1069-1090 ; unauthorized contracts and their ratification, 1091- 
 1110; Jrauds by and to, 1111-1115; the rights and liabilities of, 
 1116-1121. 
 Special sorts of, full, 1123-1142. 
 holding out one as, 288. 
 post-oiBce as, 328. 
 delivery of instrument to, 352-355. 
 affixing seal unauthorized, effect, 394. 
 must sue on specialty, principal undisclosed, 426. 
 agreement to sue as, for two parties, 527. 
 fraud of, binding principal, 650. 
 alteration of written contract through, 755. 
 election to afBrm or repudiate unauthorized act of, 782. 
 not contract for principal with self, 881. 
 whether infant can appoint, 930. 
 
 695 
 
ANS INDEX OP SUBJECTS. 
 
 AGENT, AGENTS — continued. 
 
 government contracting through, and how, 992-995. 
 
 power of corporation to appoint, 1010. 
 
 whether corporation may contract by, 1017. 
 
 signature by, good under Statute of Frauds, 1244, 1245. 
 
 oral appointment of, to sell land, 1303. 
 AGREEMENT, (See Contkact.) 
 
 fulfilling one's, no consideration, 48. 
 
 meaning of word, in statute, 195, 1247. 
 AGREEMENT TO CONVEY LAND, (See Convey.) 
 
 when deed construed as, otherwise of form of, 394. 
 
 not require "heirs," 399. 
 
 by corporation, seal not necessary, 1016. 
 
 how enforced after party's death, 1054. 
 AGREEMENT TO MARRY, 
 
 infant's, with adult, 616 ; oral, 1271, 1275. 
 AIDING, in gaming contract, 535. 
 ALIEN, (See Foreigner.) 
 
 Contracts hy and ivith, full, 997-1002. 
 ALIEN ENEMIES, how treated in our courts, 1000, 1001. 
 ALIEN SUBJECTS, 
 
 rights of property and contract, 999; in war, 1000, 1001. 
 ALL OR NONE, ratification must be for, 939, 1110. 
 ALLEGATION. (See Pleading.) 
 
 ALTERATION, of specialty by parol, 130-137.. 
 
 of written contract by oral, 164, 174; all becomes oral, 133, 766. 
 
 unauthorized, in filling blank, when avoids contract, 1174, 1175. 
 ALTERED CONTRACT, consented to, is in law a new contract, 764. 
 
 not consented to, surety, &c., discharged, 765. 
 ALTERING OF CONTRACT, 
 Unauthorized, full, 745-761. 
 By mutual consent, full, 762-776. 
 ALTERNATIVE CLAUSES, which party elect in cases of, 785-787. 
 
 how contract with, broken, 1435. 
 ALTERNATIVE PROVISIONS, one impossible, 606. 
 AMBIGUITY, (See Latent Ambiguity — Patent Ambiguity.) 
 
 what, makes contract void, 390. 
 AMENDS, taking, permissible, 494, 495, 510. 
 ANCIENT CHARTER, how interpret, 377. 
 ANIMAL, responsibility for vicious, 609. 
 
 infant liable for injuring another's, 901. 
 ANOTHER, (See Other.) 
 
 Release to, effect of, full, 867-878. 
 ANOTHER'S DEBT, one's paying, without request, 211-214. 
 ANOTHER'S MONEY, wrongly investing, 1216. 
 ANSWER, ANSWERS, false, in estoppel, 288. 
 
 through post-office, at what time completes contract, 328. 
 
 effect of, in insurance policy, 381. 
 696 
 
INDEX OP SUBJECTS. ASS 
 
 ANSWER QUESTIONS, 
 
 whether party must, while bargaining, 664. 
 ANTE-NUPTIAL CONTKACTS, (See Marriage Settlements.) 
 
 may be oral, 1276. 
 ANTE-NUPTIAL DEBTS, infant to pay wife's, 906. 
 APPEAL, waiver of, 793. 
 
 APPEAR IN COURT, how prove attorney's right to, 1127. 
 APPEARANCE, waiver by, 793. 
 APPEARANCE BOND, annulled by death, 602. 
 APPLES, severed, not real estate, 1294. 
 APPRAISED VALUE, 
 
 prohibiting sale of attached goods for less than, impairs con- 
 tract, 572. 
 APPRENTICE, one pay for services of another's, enticed, 227. 
 
 not assignable by master, 1182. 
 APPRENTICESHIP, death terminates, 601. 
 APPURTENANCES, orally showing, in deed, 376. 
 ARBITRATION, oral submission to, whether valid, 156. 
 
 power of agent to submit claim to, 1065. 
 ARGUMENT, rights of, before tribunals, 499. 
 ARREST, bond to procure release from unlawful, void, 123. 
 
 earning j-eward for, 331. 
 
 effect of contract compelled by, 720, 721. 
 
 right to have indemnity bond on making, 483. 
 
 discharge from, in one State, does not free from, in another, 1405. 
 ARTICLES OF ASSOCIATION, effect of, on contracts, 1159, 1162. 
 ARTIFICE, (See Fraud.) 
 
 effect of drunkenness brought about by, 983. 
 ASCERTAINABLE, parties to contract must be, 885. 
 ASSAULT AND BATTERY, infant liable for his, 901. 
 ASSENT. (See Mutual Consent.) 
 
 ASSIGNABLE, what is, or not, 1182, 1299. 
 ASSIGNEES, (See Bankruptcy.) 
 
 Rights of, full, 1177-1199. 
 
 of altered contract, 750. 
 ASSIGNMENT, 
 
 Of contract, full, 1177-1199; namely, as to non-negotiable closes in ac- 
 tion, 1179-1183; negotiable, 1184-1189; covenants running with 
 land, 1190-1192; the doctrine in equity; 1193-1195; by operation 
 of law, 1196-1198. 
 
 oral, 155, 1330, 1331; on Sunday, 543. 
 
 by bankruptcy, not violate agreement not to assign, 197. 
 
 of "all property," after specific enumeration, meaning, 409. 
 
 of promissory note, of contract with carrier, 431, 432. 
 
 waiving forfeiture for prohibited, 794. 
 
 by government, whether carries right of action, 990, 1183. 
 
 for creditors, excepting exempt property, 1207. 
 
 of interest in land, 1331. 
 
 697 
 
AUT INDEX OP SUBJECTS, 
 
 ASSIGNORS AND ASSIGNEES, 
 
 Of contract, full, 1177-1199. 
 " ASSIGNS," corporation bonds payable to, 1187. 
 ASSOCIATIONS. (See Unincokpobatb Associations.) 
 
 ASSUMPSIT, 
 
 on foreign judgment, 141 ; on law-created promise, 190, 203. 
 
 not on implied covenants, 255. 
 ASSURANCE. (See Insukance.) 
 
 ASTUTENESS IN BARGAINING, permissible, 660, 664. 
 ATTACHED GOODS, 
 
 estoppel concerniQg, 307 ; money paid to regain, 725. 
 ATTACHING GOODS, whether waives stoppage in transitu, 802. 
 ATTACHMENT OF GOODS, 
 
 oflSicer making, may take security for debt, 486. 
 
 after fraudulently sold, 673 ; affirming sale, 683. 
 
 before sale completed, 1309. 
 
 not, of property of foreign sovereign, 998. 
 
 property exempt from, as to creditors, 1207. 
 ATTENTION OF COURT, effect of, not directed to question, 50, note. 
 ATTESTATION, a wiU lacking, operates as deed, 384. 
 ATTESTING WITNESS, whether deed requires, 362. 
 ATTORNEY, (See Solicitor.) 
 
 is agent, 1033; whether infant appoint, 930. 
 ATTORNEY AND CLIENT, contracts between, 740. 
 ATTORNEY-AT-LAW, (See Cliknt.) 
 
 Things special to agency of, full, 1125-1130. 
 
 of party, may hold deed as escrow, 356. 
 
 knowledge of, as affecting client, 1028. 
 
 limitations statute as to bill of, 1355. 
 
 foreign champertous contract by, 1381. 
 AUCTION SALES, 
 
 how conduct, and frauds at, 528. 
 
 waiving forfeiture for permitting, 794. 
 
 governed in part by custom, 1132. 
 
 Statute of Frauds extends to, 1314. 
 AUCTIONEER, 
 
 Things special to agency of, full, 1131-1134. 
 
 is agent, 1033, 1038 ; when, sign memorandum under Statute of 
 Frauds, 1039, 1245. 
 AUTHOR, (See Dramatic Author.) 
 
 of bawdy writings, no remedy, 508. 
 AUTHORITIES, (See Adjudged Cases — Judicial Decisions.) 
 
 fragmentary nature of the, 369. 
 AUTHORITY, (See Agent.) 
 
 one partner has not, to use firm's seal, 1149-1151. 
 
 how this may be conferred, 1151, 1153; objectionable, 1153. 
 
 to do a thing, ratifies it if already done, 1226. 
 
 when agent's, must be under seal, 1045, 1046. 
 698 
 
INDEX OP SUBJECTS. BEN 
 
 AUTHORITY TO PURCHASE, 
 
 carries power to direct as to delivery, 1064. 
 AUTHORITY TO SELL, carries power to execute conveyances, 1062. 
 
 to what extent carries power to warrant, 1063. 
 AUTHORIZED PERSON, infant's contracts through, 922. 
 AVOID, AVOIDING, voidable contracts, 620; infant's, 937. 
 AWARD, accepting, validates, 286. 
 AXIOMATIC PROPOSITION, adjudication not overturn, 78. 
 
 BAILEE, not dispute title, 307. 
 
 BAILMENT, gratuitous, obligations of, 64. 
 
 BANK, indorsement of note by cashier of, 1083. 
 
 BANK CHARTER. (See Charter.) 
 
 BANK CHECK. (See Check.) 
 
 BANK-NOTE, whether, " goods, wares, and merchandise," 1315. 
 
 BANKRUPT LAWS, conflict of laws as to, 1401, 1402. 
 
 BANKRUPTCY, (See Insolvency.) 
 
 promise after bar of, 96, 100. 
 
 assignment in, of contract with clause forbidding, good, 197. 
 
 whether compromise in, permissible, 495. 
 
 assignee in, when has only rights of debtor, 673. 
 
 release by, as to joint and several, 871. 
 
 government a preferred creditor in, 991. 
 
 of principal, terminates agency, 1056. 
 
 effect of assignments in, 1197. 
 
 statutes of, as to preferring creditors, 1209. 
 BANKRUPTCY PROCEEDINGS, 
 
 promise not to institute, as consideration, 63. 
 BAR BY LAW, may be waived, 98. 
 
 BAR OF LIMITATIONS STATUTE, nature of the, 1360. 
 BARGAIN AND SALE, consideration in deed of, 42. 
 
 deed of, operating as of another sort, 395. 
 BARGAINING, agent's act of, is principal's, 1031. 
 BARTER, factor cannot, 1139. 
 
 BASTARD, death of, not avoid note for support of, 73. 
 BASTARDY, forbearing and agreeing to forbear suit for, 495, 510. 
 BATTERY, whether, duress, 718. 
 
 BAWDY-HOUSE, contract of letting or aiding, void, 506. 
 BAWDY LIBEL, contracts for making, printing, &c., void, 608. 
 BEARER, how sue on promise of payment to, 1179, 1184-1189. 
 BEGINNING TO RUN, Statute of Limitations, 1354. 
 BELIEVED, falsehood must be, to vitiate contract, 652, 655. 
 BENEFICIAL, interpretation leans to the, 417. 
 BENEFIT ACCEPTED OR CONFERRED, 
 In connection with unfulfilled contract, full, 1421, 1441-1447. 
 
 presumed acceptance, 351, 1222, 1223; not compelled, 1465. 
 
 implying promise to pay, 187, note, 188, 217, 604, 1159, 1346. 
 
 699 
 
BOS INDEX OP SUBJECTS. 
 
 BENEFIT ACCEPTED OR CONFERRED — contmuerf. 
 
 estops acceptor, 286, 305. 
 
 conferred, insane person liable for, 232, 233, 968-970. 
 
 infant's liability for, 917, 921; not for his benefit, 929. 
 
 must be returned on rescission, 833. 
 
 accepting benefit ratifies unauthorized contract, 1109; or fraudu- 
 lent, 1114. 
 
 agent receiving the, of contract, liable, 1120. 
 
 principal entitled to benefit of agent's acts, 1121. 
 
 one's right to, in another's promise, 1217, 1219. 
 
 promise to confer, 1219. 
 
 as to Statute of Frauds, 1263 ; promise not in writing, 1283. 
 BENEFIT OR DISADVANTAGE, the consideration being a, 61. 
 BENEFITED, person to be, as party, 426. 
 BEQUEST, (See Legacy.) 
 
 services rendered hoping, or under promise of, 224. 
 
 good only to one who can take, 890. 
 
 agreement to pay by, may be oral, 1279. 
 
 when Statute of Limitations begins to run on a, 1354. 
 BET, (See Wager.) 
 
 element in gaming, 533; distinguished from wager, 530. 
 BETTING ON GAME, loan for, 535. 
 " BETWEEN," meaning, in contract, 1343. 
 BIDDING, agreements concerning, at auction, 528. 
 BILL OF EXCHANGE, (See Commercial Paper — Foreign 
 
 Bill — Mercantile Paper — Negotiable Paper.) 
 
 not oral, 152, 1332 ; accepting and paying upon protest, 212. 
 
 form of corporation's, 1018. 
 
 in blank, altering into promissory note, 1175. 
 
 how and why negotiable, 1184. 
 BILL OF SALE, how far written, explainable orally, 172, 177. 
 
 receipt construed as, 896. 
 BILLS AND NOTES, (See Promissory Note.) 
 
 waiving demand and notice on, 97. 
 BLANK, BLANKS, (See Printed Blanks.) 
 
 not converted into signature by acknowledgment, 845. 
 BLANKS AND FILLING THEM, 
 
 In written contracts, full, 1165-1176; namely, in specialties, 1167-1172; 
 in simple contracts, 1173-1175. 
 BOARD, as between parent and child, 223. 
 
 furnishing prostitute with, 506. 
 
 oral contract for, good, 1302. 
 BODILY HARM, as duress, 718. 
 
 BOND, BONDS, (See Appearance Bond — Corporation Bonds — 
 Government Bonds — Statutory Bond.) 
 
 defined, 108 ; condition appended, 108, note. 
 
 without consideration, how in equity, 120. 
 
 unconscionable, from seamen as to wages, 478. 
 700 
 
INDEX OP SUBJECTS. B0R 
 
 BOND, BONDS — continued. 
 
 of seducer, to ■women, when good, 511. 
 
 infant's, for necessaries, 916, note. 
 
 what blanks in, vitiate, 1167. 
 
 effect of assignment of, 1180. 
 
 official, as to place of performance, 1393. 
 
 with penalty, 1458-1460. 
 BOND FOR DEED, whether, orally assign, 1831. 
 BOND OF INDEMNITY, to arresting or attaching officer, why good, 483. 
 BOOK, BOOKS, (See Entries in Books.) 
 
 contracts for bawdy, &c. void, 508. 
 
 partly printed, then burned, 597. 
 
 oral contract to print, good, 1816, note. 
 BORROW, corporations may, 1011. 
 BORROWING, on Sunday, 542. 
 BOTH IN FAULT, no redress for either, 489. 
 BOUNDARIES, establishing, by estoppel, 302. 
 BOUNTY MONEY, ownership of infant's, 923. 
 BREACH OF CONTRACT, 
 
 What it a, authorizing suit at law, full, 1413-1440 ; namely, in general, 
 1414-1418; as to plaintiff, Ui9-U24:; as to defendant, 14:26-US2; 
 further questions, 1433-1439. 
 
 law making, a crime does not impair its obligation, 572. 
 
 threatened, not duress, 723. 
 
 election after, 782 ; election shifting after, 785, 786. 
 
 rescinding for, 827; required nature of the, 828. 
 
 when day of performance past, and thing not done, 1844. 
 
 of contract with penalty, 1455-1460. 
 BREACH OF MARRIAGE PROMISE, (See Markiage.) 
 
 what is — • already married — refusal before the time, &c. , 1429. 
 BREACH AND PERFORMANCE, 
 
 Of contract, full, 1413-1461; namely, breach authorizing suit at law, 1413- 
 1440 ; the contract which the law creates after breach, imperfect per- 
 formance, or abandonment, 1441-1447 ; the provisions for liquidated 
 damages and for a penally/, 1448-1461. 
 BREACH OF TRUST, Statute of Limitations on claim for, 1357. 
 BRIBE, promise of, void, 503. 
 BROKER, 
 
 Things special to agency of, full, 1135-1137. 
 
 is agent, 1033, 1038; unlicensed, not enforce pay, 472. 
 
 sign memorandum under Statute of Frauds, 1245, note. 
 BROTHER AND SISTER, services and board between, 223. 
 BUILDER, contract to recommend a, 527. 
 BUILDING, permitting, when carries land by estoppel, 301. 
 BUILDING BURNED, 
 
 after letting for future day, 588; during tenancy, 598. 
 BUILDING CONTRACT, may be assigned, 1182. 
 BURDEN, whether infant can receive, in connection with gift, 923. 
 
 701 
 
OEA INDEX OP SUBJECTS. 
 
 BURDEN — continued. 
 
 one must bear the, who takes benefit through agent, 1074, 1114. 
 
 contract casting, on third person, 1217, 1218. 
 BURNED. (See Building Burned.) 
 
 BURYING THE DEAD, (See Funeral Expenses.) 
 
 what expenses in, and by whom, recoverable, 237. 
 
 burying deceased wife, a necessary for infant, 909. 
 BUSINESS, 
 
 Contracts contrary to statutes regulating, full, 547, 548. 
 
 what included in word, within Sunday laws, 540. 
 
 infant not holden for necessaries in his, 911. 
 
 one entrusting another with his, responsible, 1102. 
 
 purchaser of, promising to pay debts, 1221. 
 BUSINESS USAGE, determining power of agent, 1103. 
 BUYER, when, protected from creditors of seller, 1210. 
 
 to sever from land, as to Statute of Frauds, 1293. 
 
 CALENDAR, years and months, how computed by the, 1338, 1339. 
 CALENDAR MONTH, what is, in contract, 1339. 
 " CALL," how meaning of, 377. 
 CANCELLATION, (See Rescission.) 
 
 of contract, consideration for new, 68, 768. 
 
 contract signed in mistake, subject to, 697. 
 
 in equity, 741; effect and whether judgment of, 830, 831. 
 
 of deed of land, consequence, 821. 
 CANDIDATE FOR OFFICE, promising to share profits, 498. 
 C APAC ITY, (See Infancy — Insanity.) 
 
 implied warranty of, 246, 590, 889, 1416. 
 
 no ratification without, 848. 
 . parties must have, to contract, to take, 889, 890. 
 "CAR-LOAD," sufficiently definite in contract, 390. 
 CARELESS DRIVING, by infant, father responsible, 900. 
 CARELESSNESS, (See Negligence.) 
 
 effect of, in estoppel, 294. 
 
 in making affirmation, viewed as fraud, 661, 662. 
 
 in believing, effect of, in fraud, 655. 
 
 agent answerable to principal for, 1121. 
 CARPENTER WORK, (See Services.) 
 
 neglect to do promised, not excused by sickness, 603. 
 
 otherwise when local sickness deters all workmen, 604. 
 CARRIAGE, letting, to prostitute, 506. 
 CASHIER, one's agreement to buy shares on being made, void, 524. 
 
 form of contract by, 1083. 
 CASKS, on rescission for worthless thing in, return, 679. 
 CAUSE OF ACTION, mistake as to there being, in consideration, 70. 
 CAUSE OF CONTRACT, fraud must be the, to vitiate. 653. 
 CEASED TO EXIST, thing contracted about having, 588. 
 702 
 
INDEX OP SUBJECTS. CLA 
 
 CERTAIN. (See Made Cektain-.) 
 
 "CERTAINTY OF LAW," really uncertain, 462, note. 
 CERTIFICATE OF DEPOSIT, explainable orally, 176. 
 CERTIFICATES. (See Scrip Certificates.) 
 
 CESTUI QUE TRUST, delivery of trust-deed to, 352. 
 CHAMPERTY, contracts favoring, 497. 
 
 to avoid, choses in action not assignable, 1179. 
 
 effect of agreement for, made abroad, 1381. 
 CHANGED CIRCUMSTANCES, rescission because of, 837. 
 CHANNELS OF LAW, rights of parties flow only in, 442. 
 CHARITY, (See Necessity or Charity.) 
 
 what is given in, not recoverable back, 209, 210. 
 CHARTER, (See Forfeiture of Charter.) 
 
 showing meaning of ancient, 377. 
 
 determines corporation's power of contract, 1005; and mode, 1014. 
 
 of corporation, how interpret, 1013. 
 
 liability of associates to procure, 1158. 
 CHARTER-PARTY, 
 
 effect of agent describing himself as owner in, 1084. 
 CHATTELS, consideration in conveyance of, 125. 
 CHECK, when, operates as assignment, 1194, note. 
 
 drawer holden on — whether bank must take, 1218, note. 
 CHILD, (See Parent and Child.) 
 
 duress of, effect on parent's contract, 727. 
 
 whether, work to pay parent's debts, 1208. 
 "CHILDREN," meaning, or not, " heirs," 404; conveyances to, 416. 
 CHOSES IN ACTION. 
 How suable after assignment, full, 1177-1199. See Assignment. 
 Assignment of non-negotiable, full, 1179-1183; of negotiable, 1184-1189; 
 how in equity, 1193-1195. 
 
 assignment of, as to government, 990. 
 CHRISTIAN SABBATH. (See Lord's Day.) 
 
 CIGARS, -whether, necessaries for infant, 909. 
 CIRCUITY OF ACTION, avoiding, 857. 
 CIRCUMSTANCES, (See Changed Circumstances.) 
 
 may infer power to execute writing, 1049. 
 CITIES, franchise of, under legislative control, 561. 
 CITY, law local to, is custom, 446. 
 CIVIL JURISPRUDENCE, 
 
 distinguished from criminal, as to drunkenness, 987. 
 CLAIM OF RIGHT, indemnity for taking under, 484. 
 CLAIMS, corporation officers buying up, 476. 
 
 to things or money, assignable, 1182. 
 CLASSIFICATION, as to express and implied contracts, 183, note. 
 
 how, in law writings. 640. 
 CLAUSE IN CONTRACT, (See Repugnant Clauses.) 
 
 interpretation gives effect to every, 884. 
 
 effect of particular position of, 389. 
 
 703 
 
COM INDEX OP SUBJECTS. 
 
 CLAUSE m CO'STK ACT — continued. 
 
 construction leans against holding a, to be a condition, 418. 
 CLERGYMAN, liability of member employing, 1160. 
 CLERK, is agent, 1033 ; payment by agent's, 1067. 
 
 what skill and integrity required of, in store, 1416. 
 CLIENT, (See Attoeney-at-Law.) 
 
 whether, bound by attorney's knowledge, 1028. 
 
 attorney of, is agent, 1125. 
 
 may change or substitute attorney, 1129. 
 CLOTH, specialty written on, not good, 110. 
 CLOTHING, supplying prostitute with, 506. 
 
 what, necessary for infant, 909 ; ownership, 923. 
 CLUB SUPPER, liability of guests at, 1059. 
 COAL, whether real or personal property, 1295. 
 "C. O. D.," meaning of , judicially recognized, 377. 
 COHABITATION. (See Illicit Cohabitation.) 
 
 COIN, as consideration, 46. 
 
 COLLATERAL ACTION, Statute of Frauds in bar of a, 1240. 
 COLLATERAL BARGAININGS, 
 
 what, relating to lands, may be oral, 1303. 
 COLLATERAL DEBT, 
 
 how affected by altering or destroying contract, 757. 
 COLLECT DEBT, power to, not include release of it, 1061. 
 COLONY, rebelling, wlien courts recognize, 998. 
 COMBINATIONS, (See Conspiracy.) 
 
 of persons to violate public policy, unlawful, 521. 
 COMBINATIONS OF THINGS, 
 
 As invalidating contract, full, 731-744. 
 COMITY OF NATIONS, (See Conflict op Laws.) 
 
 meaning of, 1370. 
 
 foreign sovereigns and subjects contract by, 997. 
 COMMAND OF LAW, creates promise to obey, 204. 
 COMMERCIAL PAPER, (See Meucantile Paper.) 
 
 signature to, fraudulently procured without reading, 346. 
 COMMERCIAL TRAVELLER, power of, as to transportation, 1061. 
 COMMERCIAL USAGE, 
 
 as law, 445, 446 ; affecting form of contract, 1073. 
 COMMISSION OF LUNACY, under statutes, 977. 
 COMMISSION MERCHANT, (For synonym see Factor.) 
 
 Things special to agency of , full, 1138-1141. 
 COMMISSIONS, of auctioneer, 1132. 
 COMMITTEE, (See Legislative Committee.) 
 
 power of insane person's, over his contract, 974. 
 
 to investigate, employ accountant, 1061. 
 
 liability for debts incurred by, 1158. 
 COMMITTEE OF LUNATIC, under statutes, 977. 
 COMMON CARRIER, of goods, not dispute owner's title, 307. 
 
 liabilities of, 432; coiistrnction of limiting contract, 411. 
 704 
 
INDEX OP SUBJECTS. CON 
 
 COMMON CARRIER — continued. 
 
 impossibilities, not impediments to navigation, excuse, 591, 596. 
 "COMMON LABOR," what Sunday contracting is, 539. 
 COMMON LAW, whence, 4-8. 
 
 how custom becomes, 445. 
 
 agreement to violate, void, 471. 
 COMMON'-LAW COURTS, 
 
 same as equity, enforce estoppels in pais, 281. 
 COMMON-LAW RIGHT, one may waive, 94. 
 
 COMMON SEAL, corporation's, and contracting under, 1015, 1016, 1018. 
 COMPEL, infant bound by voluntary act which the law would, 918. 
 COMPENSATION, when public officers and others entitled to, 207, 208. 
 
 officer receiving, from private person, 500. 
 
 recovering, on rescission, 834, 835. And see 1441-1447. 
 COMPETITION, agreements to stifle, at auction, 528. 
 COMPOSITION WITH CREDITORS, principles as to, 48-59. 
 COMPOSITION DEED, small creditors not signing, 348, note. 
 
 executed by one partner, 875. 
 COMPOUNDING, 
 
 bonds and contracts for, void, 122, 492, 493 ; recognizance, 147. 
 COMPROMISE, (See Composition with Creditors.) 
 
 as a consideration, 57. 
 
 of illegal claims, ill, 488. 
 
 of private suit, permissible, 494, 495. 
 
 under mistake of sum due, 702. 
 
 with creditors, falsehood in, 651. 
 COMPULSION. (See Recover Back.) 
 
 COMPUTATION OF TIME, 
 
 In contract, full, 1337-1343. 
 CONCEALMENT. (See Fraudulent Concealment.) 
 
 what, is fraud, 660, 664. 
 CONCURRENT ACTS, breach of contract requiring, 1438. 
 CONCURRENT JURISDICTION, of law and equity, in fraud, 690. 
 CONCURRENT PROMISES, breach and performance of, 1433. 
 CONCURRENT REMEDIES, for enticing apprentice, 228. 
 CONDITION, not broken by act of law, 198. 
 
 word, not always creates, construction not favors holding clause 
 to be, 418. 
 
 impossible, effect of, 579, 603. 
 
 waiver of breach of, 800. 
 
 rescission for non-performance of, 828. 
 CONDITION WITH PENALTY, effect of, 1459, 1460. 
 CONDITION PRECEDENT, 
 
 defined, effect of fulfilment impossible, 586. 
 
 strict performance of, necessary, 1422. 
 
 preventing performance of, 1431. 
 CONDITIONAL DELIVERY, (See Escrow.) 
 
 specialties and simple contracts distinguished as to, 357. 
 45 705 
 
CON INDEX OP SUBJECTS. 
 
 CONDITIONAL PROMISE, as intercepting limitations bar, 1364. 
 CONDUCT, estoppel by, 290; creating agency by, 1044. 
 CONDUCT OF PARTIES, 
 
 under contract, how affects interpretation, 412. 
 CONDUCTOR, on railroad, employing physician, 1066. 
 CONFECTIONERY, whether necessary for infant, 909. 
 CONFIDENTIAL RELATION, (See Fiduciary Relation.) 
 
 fraud by person sustaining, 658. 
 misstatement of law by one in, 655. 
 mistaking meaning in, 705. 
 CONFIRMATION, (See Ratification.) 
 
 By infant, of voidable contract, full, 936-945. 
 CONFLICT OF LAWS, 
 
 As to contracts, full, 1368-1412; namely, tlie general doctrine, 1369-1871 
 inception of the contract, 1372-1389; interpretation and effect oj 
 the contract, 1390-1398; its discharge, 1399-1402; the procedure 
 for its enforcement, 1403-1411. 
 as to impairing obligation of contracts, 566. 
 CONFLICT OF PRINCIPLES, 
 
 as to effect of contracts by the insane, 957. 
 how the decision in cases of, 994, note. 
 CONSENT, (See Mutual Consent.) 
 
 mingling of impediments to, 733. 
 one not complain of what is done with his, 1299. 
 CONSIDERATION. (See Defective Consideration — Failure 
 
 OF Consideration — Past Consideration — Without Con- 
 sideration.) 
 Doctrine of, full, 35-102; namely, defined and general doctrine o/^ 37-75; 
 in wholly executory (mutual promises'), 76-79; in wholly executed, 
 80-84; 171 executed in part, 85-87; consideration executed, 88-93; 
 waiver as to, 94-100. 
 In sealed contracts, full, 119-127. 
 
 essential, 24; license without, 131. 
 parol proof of illegal, in deed, 119, note, 121, 275. 
 intended to be a gift, no promise created, 210. 
 not essential to estoppel by deed, 275. 
 for promise to leave offer open, 325. 
 illegal or against sound policy, 467, 487. 
 forbearing or relinquishing attachment, 486. 
 . unlawful contract as, for another, 488. 
 compromise of private suit as, 494, 495. 
 immoral, 509; forbearance to prosecute bastardy, 510. 
 keeping immoralities secret, 512. 
 for contract in restraint of trade, 514, 519. 
 the, for a wager, 531, 532. 
 failing through act of God, 599. 
 void contract no, for new, 614. 
 want of, not invalidate executed contract, 626. 
 706 
 
INDEX OP SUBJECTS. CON 
 
 CONSIDERATION — continued. 
 
 on purchase of goods obtained by fraud, 673. 
 
 by reason of mistake, none, 696. 
 
 counterfeit money no, 699. 
 
 fraud, undue influence, &c. combining with too small, as invalidating 
 contract, 736, 737, 739. 
 
 whether have back the, after altering or destroying contract, 757. 
 
 what, in altering contract, 768. 
 
 whether, required in waiver, 804-807. 
 
 release from contract is, for its rescission, 813. 
 
 having back, on rescission, 818, 833; rescission for failure of, 825. 
 
 for release, 874; under seal without, seal supplying, 851, 852, 874. 
 
 person from whom, promisee, 887. 
 
 effect on rescission of infant's consuming the, 921, 940. 
 
 after majority, infant's disposing of, affirms, 942. 
 
 not required in infant's affirmance, 943. 
 
 one setting up own insanity, whether return the, 971. 
 
 keeping the, as ratification, 986. 
 
 limiting rights under grantee's promise to pay mortgage, 1220. 
 
 one may have benefit of contract into which he has put, 1221. 
 
 recoverable, for voluntarily performing oral contract, 1235, 1236. 
 
 Statute of Frauds not dispense with, whether memorandum must 
 set out the, 1247. 
 
 contract of guaranty requiring a fresh, 1251, 1266. 
 
 effect of, on license as to land, 1299-1301. 
 
 in bargainings as to land, 1304. 
 
 debt revived after limitations bar without fresh, 1360. 
 COXSIDERATION OF MARRIAGE, 
 
 Agreements on, within Statute of Frauds, full, 1267-1271. 
 CONSPIRACY, (See Combinations.) 
 
 Contracts partaking of unlawful, full, 521-528. 
 To put property out of reach of creditors, full, 1202-1205. 
 
 rights of parties to, to defraud, 691. 
 
 criminal, 59; to control market, 518. 
 CONSTITUTION, one may waive right under, 94, 793. 
 
 is " law " — whether, may impair obligation of contract, 570. 
 
 intei-preted similarly to statute, 556. 
 CONSTITUTIONAL LAW, 
 
 statute may take away officer's pay, 207, 208; or abolish office, 208. 
 
 statute of State requiring promise not to remove cause to United 
 States Court, void, 496. 
 
 how contracts protected by, 550-576. See Obligation of Con- 
 tracts. 
 
 limiting government's power of contract, 988. 
 CONSTRAINING COMBINATIONS, 
 As invalidating contract, full, 731-744. 
 CONSTRUCTION. (See Interpretation of Contract.) 
 
 CONSUL, violation of governmental trust by, 526. 
 
 707 
 
COS INDEX OP SUBJECTS. 
 
 
 
 CONTAGIOUS DISEASE, prevailing, excusing performance, 604. 
 CONTEMPORANEOUS WRITINGS, admissible in interpretation, 372. 
 CONTINGENT EVENT, one may assume loss to another from a, 609. 
 
 promise depending on, as to " within a year," 1274. 
 CONTINUING CONTRACT, how infant ratify his, 943. 
 CONTINUING TO RUN, Statute of Limitations, 1356. 
 CONTRA BONOS MORES, (See Morals.) 
 
 contracts, void, 505. 
 CONTRACT, CONTRACTS, (See Agent — Agkbement — Assign- 
 ment — Cheated by Law — Executed — Executory — Ex- 
 press — Era udulent — Implied — Impossible — Joint — Lob- 
 bying — Mutual Consent — Obligation — Oral — Pur- 
 chaser — Signing — Simple — Substitution — Written.) 
 Defined, and elements of, full, 22-34, 191-193, 195. 
 Of record, full, 140-150. 
 The, the obligation whereof, not impair, full, 555-564. 
 
 in fact, excludes created, 185, 187. 
 
 public oflBce not a, 208. 
 
 consists of mingled law and stipulation, 439. 
 
 executing, is "business," within Sunday laws, 540. 
 
 meaning in constitutional provision, 556. 
 
 infant's breach of, connected with tort, or fraud, 901, 902. 
 
 whether agent liable on, in name of principal, 1119, 
 
 efEect of word, in Statute of Frauds, 1247, 1290. 
 
 inseparable from human existence, 1464. 
 
 technical nature of law of, 1471. 
 CONTRACTING. (See Bargaining.) 
 
 CONTRIBUTION, in joint liability, when compellable, 216. 
 
 between administrator of deceased and survivor, 864. 
 CONTROL THE MARKET, agreements to, 518. 
 CONVENIENCE OF BUSINESS, 
 
 as affecting contracts of the insane, 957. 
 CONVEY, firm's ineffectual deed as agreement to, 1152. 
 CONVEYANCE, CONVEYANCES, (See Deed op Land.) 
 
 of land, 124 ; of chattels, 125. 
 
 oral condition to written, or promise to take back, 172. 
 
 presumed, 260 ; by other than true name, 343. 
 
 one avoiding, not retain price, 679. 
 
 must be to one with capacity to take, 890. 
 
 of thing by principal, ends agency, 1056. 
 
 to one in trust for another, 1215. 
 
 •what a breach of promise to make, 1430. 
 CONVEYANCES OF LAND, warranties implied in, 248. 
 
 by estoppel, 301, 303, 309. 
 
 release as a form of, 853. 
 CONVEYING AWAY, 
 Property to defraud creditors, full, 1200-1213. 
 708 
 
INDEX OP SUBJECTS. COV 
 
 COPYRIGHT, no, on bawdry, 508. 
 
 CORDS OF WOOD, " standing in the tree," real estate, 1294. 
 " CORNER," loan to aid in, 535. 
 
 CORPORATION, (See Chakter — De Facto — Franchise — 
 
 Municipal — Officer — Public — Trustee.) 
 Contracts by, full, 1003-1024; namely, its power of contract, 1005-1013; 
 by what methods exercised, 1014-1023. 
 
 whether pay for service before, organized, 221. 
 
 not deny power of, after receiving loan from, and givino- mort- 
 gage, 286. 
 
 estopped to deny existence of, 304; bound by estoppel, 810. 
 
 officers of, not speculate on claims against, 476. 
 
 obligation of contracts by, not impair, 555, 559. 
 
 defined, whether legislation can divest, of franchise, 559, 560. 
 
 no contract with, before its creation, 886. 
 
 appointing agent through officer de facto, 1057. 
 
 how contract through treasurer or cashier, 1083. 
 
 not ratify agent's ultra vires contracts, 1110. 
 
 law of State of suit determines whether party is, 1406. 
 CORPORATION BONDS, negotiable or not, 1187. 
 CORPORATION DEED, authorization to execute, 1048. 
 CORRECTION OF MISTAKES, in contract, 751. 
 CORRUPTION IN OFFICE, contracts tending to, 499-503. 
 COST, what falsehood as to, is fraud, 666. 
 COUNTERFEIT MONEY, 
 
 payment in, while believed genuine, 699. 
 COUNTING-ROOM, 
 
 one liable for what another does in, as agent, 1101. 
 COUPLED WITH INTEREST, 
 
 agency, 1051, 1054, 1055, 1145, 1172; not revocable, 1051, 1054. 
 
 license, 1300. 
 COUPONS, whether negotiable, 1187. 
 COURSE OF TRADE, 
 
 meaning, 444, note; as giving authority to agent, 1086, 1108. 
 COURSES AND DISTANCES, effect of, in deed of land, 408. 
 COURT, (See Attention of Court — Tribunal.) 
 
 cannot change laws, how of overruling decisions, 569. 
 COURT OF CLAIMS, United States suable in, 989. 
 COVENANT, COVENANTS, (See Gross — Running with 
 
 ' Land — Sue.) 
 
 defined, 107; promise implied from accepting deed-poll, 202, 203. 
 
 implied, are same as written, 255. 
 
 discharge from, by statute, when, 441. 
 
 recover on, though secured by penalty, 1459. 
 COVENANT TO STAND SEISED, 
 
 consideration in conveyance by, 42. 
 
 deed by, operating as of other sort, 395. 
 
 709 
 
OKI INDEX OP SUBJECTS. 
 
 COVENANTS IN DEED, estoppel by, 268. 
 COVERTURE, (See Makkikd Women.) 
 
 incapacity from, not same as from insanity, 955. 
 CREATED AND IMPLIED, distinction of, 183, note. 
 CREATED BY LAW, 
 
 Contracts, full, 181-238; nalhely, general doctrine, 182-203; illustrative 
 
 instances, 204-237. 
 Contracts, against infants, full, 906-916; insane persons, 967-970. 
 The contract, after breach, imperfect performance, or abandonment, full, 
 1846, 1421, 1441-1447. 
 further of, 28, 84, 40 ; promise to pay for benefit, 93. 
 defeasance, in deed to secure loan, 178, 195. 
 contracts, whether protected as not to be " impaired," 556. 
 impossibility excuses duty, 595. 
 promise to refund money, 633, 634. 
 law determines parties to contracts, 887. 
 infant's contract, distinguished from express, 919, 920. 
 insanity no defence against contracts, 956, 967-970. 
 contract, against corporation, 1020. 
 agency may be, 1043. 
 
 promise, intercepts Statute of Limitations, 1361. 
 promise, to pay for benefit conferred, 1421. 
 CREDIT, when agent buy on principal's, 1064. 
 
 agent giving unauthorized, principal not bound, 1098. 
 whether auctioneer give, 1134. 
 CREDITOR, CREDITORS, (See Composition — PRErEREED.) 
 
 Rights of, as to debtors' contracts, full, 1200-1213. 
 affected by executed contract, 80, 81. 
 accepting another's money in discharge, 211. 
 assignment for benefit of, interpreted, 409. 
 compelling election by, 780. 
 infant's, not aflSrm or disaffirm contract, 936. 
 power of husband and wife to defraud, 951. 
 assignee in bankruptcy represents the, 1197. 
 so does executor, 1198. 
 forbearance of, to press claim, consideration for executor's promise 
 
 to pay, 1252. 
 promise, to be within the Statute of Frauds, must be to the, 1264. 
 rights of, after agreement for sale, 1309. 
 not set up Statute of Frauds, 1324. 
 CRIME, (See Prosecution of Crime.) 
 
 sealed contract for suppressing prosecution of, void, 122. 
 
 no, where mistake of fact, 481. 
 
 legislature cannot contract away its power to define and punish, 
 
 564. 
 making breach of contract a, not impair, 572. 
 agent personally liable for own, 1117. 
 CRIMINAL CONVERSATION, promise to settle claim for, valid, 510. 
 
 710 
 
INDEX OP SUBJECTS. DEA 
 
 CRIMINAL INTERCOURSE, 
 
 permissible to buy another's silence as to, 512. 
 CROPS. (See Growing Crops.) 
 
 CROSS ACTION, after contract imperfectly performed, 1421. 
 CROWN, interpretation favors, as against subject, 415. 
 
 assignments to and from the, 1183. 
 " CURRENT FUNDS," meaning of, 377. 
 CUSTODIAN, who, of escrow, 356. 
 
 alteration of contract by, 753, 754, 761. 
 CUSTOM, (See Usage.) 
 
 defined, effect of, how becomes law, 10, 444-446, 1128, 1124. 
 
 agent's power of warranty controlled by, 1063. 
 
 auctioneer's functions come in part from, 1132. 
 CUSTOM OF TRADE, 
 
 treating agent as principal under, 1086. 
 CUSTOM OR USAGE, 
 Nature of, full, 444-448. 
 Effect of, in contract, full, 449-459. 
 CUSTOMARY PAYMENT, presumed, 456. 
 CUSTOMERS, 
 
 whether one, after selling good-will, may solicit former, 520. 
 " CUTS," how meaning of, 377. 
 
 DAMAGE, DAMAGES, (See Liquidated — Penalty.) 
 
 suffered, in conspiracy, 521. 
 
 recoverable in court of law, 434. 
 
 agreement to pay, on contingency, good, 582, 590. 
 
 at law, for fraud, rescission, 085; fraud reducing, 689. 
 
 no rescission where partial failure to perform compensated by, 828. 
 
 when one may rescind contract yet be liable for, 887-841. 
 
 interest as, distinguished from interest by contract, 1407. 
 
 word, whether means liquidated, 1452. 
 
 whether, recoverable above penalty, 1459. 
 DAMAGE MONEY, receiving, affirms proceedings, 286. 
 DATE, in specialty, 114. 
 
 presumption of, varying by parol, 178. 
 
 precedence between deeds of same, 396. 
 
 as to, of Sunday contract, 543. 
 
 altering, 751; filling blank for, in specialty, 1170. 
 DAY, (See Different — Fractions.) 
 
 when, begins and ends, how reckon fractions of, 1340. 
 DAYS OF GRACE, on promissory note, 431. 
 
 not, on common carrier's contract, 432. 
 DE FACTO CORPORATION, when, estopped to deny de jure, 304. 
 DE FACTO OFFICER, may empower agent, 1057. 
 DEAD, (See Burying — Funeral Expenses.) 
 
 no conveyance to the, 858. 
 
 711 
 
DEB INDEX OF SUBJECTS. 
 
 DEAF ANK dumb, have capacity of contract, 963. 
 DEATH, (See Lawsuit.) 
 
 Release from contract by, full, 858-866. 
 
 gives escrow effect from first delivery, 360. 
 
 deed to be delivered on grantor's, 361. 
 
 transmits contract to executor, 435. 
 
 ending corporation, or not, 559. 
 
 under what terms in contract, deprives of wages, 586. 
 
 of husband, ends agreement for separate allowance to wife, 588. 
 
 what contracts discharged by, 600-603. 
 
 infant's, how affects his contracts, 936. 
 
 insane person's contract, how affected by his, 974. 
 
 terminates agency, 1052, 1053; of one, joint agency, 1088. 
 
 whether, when coupled with interest, 1054. 
 
 effect of, on judicial proceedings, 1053. 
 
 whether, terminates agency to fill blank, 1172. 
 
 promise depending on, whether within a year, 1274. 
 
 agreement to be performed at, may be oral, 1278. 
 DEATH UNKNOWN, effect of, on agency, 1053, 1054, 1119. 
 DEBT, (See Another's Debt.) 
 
 action of, on judgment, 141 ; on recognizance, 149. 
 
 extinguishment of, with or without seal, 874. 
 
 government preferred to private creditor, as to, 991. 
 
 promise to pay another's, as to Statute of Frauds, 1256 et seq. 
 
 action of, for penalty, 1456. 
 DEBTOR, 
 
 Creditor's rights in contracts and property of, full, 1200-1213. 
 
 whether, must work for creditor, 1208. 
 
 oral arrangements with, not invalidated by Statute of Frauds, 1264. 
 
 must find his creditor and tender the money, 1437. 
 DECEASED PERSON, effects of, vest in executor, 1198. 
 
 consideration binding, not sustain executor's promise to pay, 1251. 
 DECEIT, action of, for what fraud, 662. 
 DECEITFUL PROMISE, may constitute fraud, 668. 
 DECISIONS. (See Judicial Decision.) 
 
 DECLARATIONS, infant's disaffirmance by, 942, 943. 
 DEDICATION TO PUBLIC, power of agent as to, 1064. 
 DEED, (See Forged — Imperfect — Lost — Specialtt — Void — 
 Witnessing.) 
 Estoppel by, full, 274-279. 
 
 meaning, 105; in name not grantor's, 343. 
 
 to take effect on grantor's death, 361. 
 
 compared with will, as to repugnant clauses, 389. 
 
 ineffectual will may operate as, 384. 
 
 form of corporation's, how execute, 1018, 1019. 
 DEED OP LAND, (See Conveyance —Land.) 
 
 consideration for, 42, 43. 
 
 forms of, 42 ; under Statute of Uses. 124, 127. 
 712 
 
INDEX OF SUBJECTS. DBF 
 
 DEED OF Ij AND — contintted. 
 
 implied -warranty in, 248-251. 
 
 presumed from possession of, 200. 
 
 covenant of warranty in, estoppel, 277. 
 
 effect of, on after-acquired title, 277. 
 
 appurtenances orally shown, 376. 
 
 rejecting false description in, 385. 
 
 restrictions in, contrary to law, 388. 
 
 imperfect, 394; varying forms of, 395. 
 
 precedence between two deeds, 390. 
 
 interpretation of description in, 408. 
 
 on Sunday, not recover land back, 545. 
 
 effect of void, 614. 
 
 good, though preliminary bargain oral, 634. 
 
 accepting, through fraud, 645. 
 
 land not existing, 695. 
 
 forged, passes no title, 699. 
 
 desci'ibing wrong parcel, reformed, 709. 
 
 setting aside, as inequitable, 743. 
 
 alteration of, after delivery, 758. 
 
 effect of cancelling, 821. 
 
 infant's, voidable, 925; without consideration, void, 932. 
 
 manner of infant's avoiding his, 938, 942. 
 
 ratifying infant's old, by new, 942. 
 
 insane person's, 970, 975. 
 
 by partners, how, 1151, 1152. 
 
 covenants in, running with land, 1190-1192. 
 
 operates to assign covenants running with land, 1192. 
 
 running to wrong grantee, 1216. 
 
 right of suit on gi-antee's implied promise in, 1220. 
 
 essential to conveyance of it, 1289. 
 
 whence the necessity of, 1327. 
 DEED-POLL, meaning, 105; nature, 203; infant accepting, 202, 203. 
 
 from acceptance of, law creates promise, 252. 
 
 estoppel by, 268; how interpret, 414. 
 
 binds both parties, how, 318, note. 
 DEFAULT, (See Mutual Default.) 
 
 waiver, before or after, 795. 
 
 both parties in, operates as rescission, 816. 
 DEFEASANCE, when law creates, in deed, 178, 195. 
 
 under seal or not, 852. 
 DEFEASIBLE TITLE, (See Title.) 
 
 on fraudulent sale, 672 and note. 
 DEFECTIVE CONSIDERATION, validating, 85-87. 
 DEFECTS, in contract, cured by performance, 625. 
 DEFECTS IN MANUFACTURE, how waived, 801. 
 DEFENCE, estoppel by denying that there is a, 295. 
 altered contract not available in, 757- 
 
 713 
 
DES INDEX OP SUBJECTS. 
 
 DEFENCE — continued. 
 
 party to contract rely on what in, after assignment, 1180. 
 DEFENCE OF FUAUD, (See Fuavd.) 
 
 In contract, full, 642, 045, 671, 673, 678-U91. 
 DEFENDANT, (See Both in Fault.) 
 
 What conduct of, is breach of his contract, full, 1425-1432. 
 
 one cannot be, and plaintifE, 883. 
 DEFINITION, in the law, what and how made, 184, note. 
 DEFRAUD, contracts tending to, others, 527. 
 DEFRAUD CREDITORS, 
 
 Contracts and conveyances to, full, 1200-1213. 
 DEFRAUD PUBLIC, agreement to, void, 522, note. 
 DEFRAUDING PARTY, bound by contract, 678. 
 DEGREES, in insanity, 961, 963. 
 DELAY, (See Statute of Limitations.) 
 
 to sue, as consideration, 63. 
 
 effect of, in rescission, 680; in infant's ratification, 942. 
 
 as inferring payment, 1351. 
 DELEGATE AUTHORITY, how far agent can, 1067; auctioneer, 1134. 
 DELIVERY, (See Future.) 
 
 Of written contract, full, 349-361. 
 
 of specialty, 113 ; writing, mutual assent, 315. 
 
 essential to gift, 82, 83, 210 ; not to sale, 83. 
 
 on secular day, of contract made on Sunday, 544. 
 
 of void deed, passes no title, 614. 
 
 parties mutually altering before, 763. 
 
 whether second, after blank is filled, 1170. 
 
 when, authorizes to fill blank, 1174. 
 
 what, under Statute of Frauds, 1319. 
 
 contract deemed made at place of, 1389. 
 DELIVERY AND SIGNING, 
 
 Fraud which vitiates the, full, 644-649. 
 DELUSIONS, how far insanity, 963. 
 DEMAND, or not, as to Statute of Limitations, 1354. 
 
 necessity of, in case of concurrent acts, 1433. 
 
 on promise to pay in goods, 1436. 
 
 on promise to pay money, 1437. 
 DEMAND AND NOTICE, 
 
 -waiver of, 97; as to "obligation of contract," 565. 
 DENTIST, "reasonable space" for, 517, note ; infant pay, 909. 
 
 what skill and capacity, impliedly promises, 1416. 
 DEPENDENT, what provisions interpreted as, 401 ; breach of, 1420. 
 DEPOSIT, (See Certificate of Deposit.) 
 
 when Statute of Limitations begins to run on a, 1354. 
 DEPRECIATION IN VALUE, not failure of consideration, 73. 
 DEROGATION OF LAW, 
 
 statutes and contracts in, how construed, 410. 
 DESCRIPTION IN DEED, what sufficient, 390 ; how interpret, 408. 
 714 
 
INDEX OP SUBJECTS. DIS 
 
 DESCRIPTION OF THING, oral evidence aiding, 374, 376. 
 DESERTED WIFE, death of liusband ends agreement to support, 588. 
 DESIGN TO MISLEAD. (See Mislead.) 
 
 DESTROYED CONTRACT, whether, provable orallv, 757. 
 DESTROYING THING, a breach of promise to convey, 1430. 
 DESTRUCTION, of contract or note, is discharge, 757, 819. 
 
 of thing contracted about terminates contract, 861. 
 DESTRUCTION OF GOODS, threatened, as duress, 724. 
 DETACHED PAPERS, contract on, interpreted as one, 382. 
 DETACHING, from contract, a memorandum, 751. 
 DEVISE, services expecting, 224. 
 
 must be to one -with capacity to take, 890. 
 DICTUM, judge's, not authority, 12. 
 " DIFFERENCES," gambling in, 534. 
 DIFFERENT DAYS, contract partly on each of, 382. 
 DIRECTORY, statute, as to surety to bond, 443. 
 
 whether, a statute as to how corporation contract, 1014. 
 DIRT FROM STREETS, construction of agreement to remove, 398. 
 DISABLING SELF, 
 
 to pex'form condition precedent, waives it, 795 ; is breach, 1427. 
 DISADVANTAGE OR BENEFIT, as consideration, 61. 
 DISAFFIRMANCE AND AFFIRMANCE, (See Rescission.) 
 
 By infant, of Ms voidable contract, full, 936-945. 
 DISCARD CONTRACT, for both parties to, is rescission, 816. 
 DISCHARGE IN BANKRUPTCY, fresh promise after, 96, 100. 
 DISCHARGE OF CONTRACT, (See Release.) 
 
 Under conflicting laws, full, 1399-1402. 
 
 paying less than due in, 50, 
 
 simple contract, how, 174. 
 
 specialty, 130, 134; recognizance, 146. 
 
 accomplished by destruction, 819. 
 DISCHARGE BY LAV7, differs from same by contract, 871. 
 DISCLOSE AGENCY, agent holden who does not, 1076. 
 DISCLOSURE, duty of mutual, 660, 664. 
 
 withholding facts contrary to duty of, 285, 286, 288, 290. 
 DISCOVERY OF FRAUD, rescission after, 680. 
 DISCRETION, 
 
 agency with, not for both parties, 1041; not delegated, 1067. 
 DISCRETION OF COURT, when relief withheld on appeal to, 45. 
 DISPOSING OF THING, contracted about, rescission for, 826. 
 DISPUTES, part payment in settlement of, 56. 
 DISQUALIFIED, at time of contract, is breach, 1427. 
 DISQUALIFYING SELF, other party may rescind for, 826, 828. 
 
 as breach of contract, 1426, 1427. 
 DISSENTING, (See Rescission.; 
 
 By infant, from voidable contract, full, 936-945. 
 DISSOLUTION OF PARTNERSHIP, notice of, 1148. 
 
 715 
 
EFF INDEX OP SUBJECTS. 
 
 DISTANCES, described in deed, aiding interpretation, 408. 
 DITTO, double commas equivalent for, 403. 
 "DIVERS GOOD CONSIDERATIONS," words, 75, note. 
 DIVISION LINE, establishing, by estoppel, 302. 
 DIVISIONS OF SUBJECT, 
 
 in law writings, are only for convenience, 490, 640. 
 DIVORCE, as damages, 41 ; bargains concerning, 496, 
 DOCTRINE. (See Legal Doctrine.) 
 
 DOMICIL, what agreements as to, good, 478. 
 DOUBLE COMMAS, effect of, 403. 
 DOUBLE ESTOPPEL, efEect of, 269. 
 DOUBT, interpretation only for cases of, 379. 
 DOUBTFUL RIGHT, compromise of, 57. 
 DRAFT OF CONTRACT, altering the, 763. 
 DRAMATIC AUTHOR, 
 
 what restrictions, may impose on self by contract, 518. 
 DRAUGHTSMAN, reforming contract for mistake of, 707. 
 DROUGHT, interrupting supply of water contracted for, 588. 
 DRUNKENNESS, 
 Effect of, on contracts, full, 979-987. 
 
 and fraud combining, as impairing contract, 656, 734, 736. 
 
 what, deemed insanity, 960. 
 DUPLICATE, contract made in, precedence of parts, 424. 
 DURESS, (See Threats.) 
 
 Contracts made under, full, 715-7S0. 
 
 seal not validate contract made under, 121. 
 
 promise implied to repay money obtained by, 226. 
 DURESS OF GOODS, contract procured by, 722-725. 
 
 recovering back money paid under, 632. 
 DUTY, (See Legal Duty — Neglect of Duty.) 
 
 no pay for doing, 48, 207 ; law creates promise to do, 204-206. 
 
 misrepresentation contrary to, as element in estoppel, 288. 
 
 impossibility of doing what, discharges, 590, 596. 
 DUTY OF MUTUAL DISCLOSURE, in contracting, 660, 664. 
 DUTY TO SPEAK, in estoppel, 295. 
 
 EARLIER CLAUSE, compared with later, in interpretation, 389. 
 " EARNEST," meaning of, under Statute of Frauds, 1320. 
 EARNINGS, child being entitled to own, 230. 
 
 of self, wife, child, as against creditors, 1208. 
 EDUCATION, of infant, a necessary, 909. 
 EFFECT, (See Postponing Effect — Taking Effect.) 
 
 Interpretation of contract as to its, full, 429-437. 
 interpretation giving, to contract, 1152. 
 EFFECT AND INTERPRETATION, 
 
 Of contracts made and to be performed in different States, full, 1390-1398. 
 EFFECT OF LANGUAGE, parties bound by, 381. 
 
 716 
 
INDEX OP SUBJECTS. 
 
 EQTJ 
 
 EFFECT AND MEANING, distinguished in interpretation, 365. 
 EFFECT OF WORDS, reforming contract for mistake of, 707 708 
 EFFECTUAL, 
 
 contract made, by interpretation, 384, 391-396; charter, 1013. 
 EIGHTEEN, as age of majority in females, 893. 
 ELECTION, (See Affirmance — Rescission — Waivek.) 
 
 Doctrine of, full, 777-788. 
 
 of methods on failure of consideration, 74. 
 
 to sue on express contract or one implied, 187. 
 
 right of, in one defrauded, 671, 672. 
 
 one defrauded has, to avoid or confirm, 678-680, 683. 
 
 to rescind or affirm duress contract, 728. 
 
 to accept or repudiate altered contract, 748. 
 
 to sue or rescind for breach of contract, 826-828. 
 
 to aflSrm or repudiate contract, 844 ; conclusive, 1 109. 
 
 as between holding principal and agent, 1079, 1085. 
 
 by purchaser, when agent selling exceeds authority, 1097. 
 
 to accept or reject gift, 1222, 1223. 
 
 right of, to rely or not on Statute of Frauds, 1239. 
 
 of alternative in contract, 1435, 1436. 
 ELECTIONS, 
 
 contracts violative of purity of, void, 498; betting on, 529. 
 EMANCIPATION, not, avoid promise to pay for slave sold before, 73. 
 
 effect of, on covenant for title, 594. 
 
 of infant by parent, effect, 898. 
 EMBEZZLEMENT, infant liable for, 901. 
 EMINENT DOMAIN, right of, as to impairing contract, 573. 
 EMPLOYMENT, (See Services.) 
 
 sei-vices in excess of contract of, 222. 
 
 effect of premature discharge from, 838. 
 ENDED, whether contract is, by being executed, 80. 
 ENEMY. (See Act of Public — Public.) 
 
 ENGLISH DECISIONS, (See Judicial Decisions.) 
 
 effect of, -with us, 13. 
 ENTERPRISE, falsehood as to who engaged in, 651. 
 ENTIRE WRITING, and what else, in interpretation, 382. 
 
 on several pieces of paper, one, 382. 
 ENTIRETIES, tenancy by, 475. 
 
 ENTRIES IN BOOKS, as memoranda tinder Statute of Frauds, 1249. 
 EQUITABLE ESTOPPEL, (See Estoppel.) 
 
 Full, 280-310. And see In Pais. 
 
 not special to equity, 281. 
 EQUITABLE INTEREST IN LAND, how convey, 1331. 
 EQUITABLE RELIEF, for fraud, 686. 
 EQUITABLE RESCISSION, for fraud, 688. 
 EQUITABLE TITLE, derived from imperfect deed, 394. 
 EQUITY, (See Law^ and Equity.) 
 
 Assignments in, full, 1193-1195. 
 
 717 
 
EST INDEX OP SUBJECTS. 
 
 EQUITY — continued. 
 
 how regards consideration, 120. 
 
 contracts interpreted same in, as at law, 427. 
 
 redress in, differs from law, 484. 
 
 follows law as to illegal contracts, 471. 
 
 relaxing rule of law, 489. 
 
 jurisdiction of, compared with law, over fraudulent and other lib 
 contracts, 732. 
 
 compelling election, 780 ; rescission in, 830. 
 
 modifying common law of married women's property, 9.50. 
 
 relief in, where agency terminated by principal's death, 1054. 
 
 enforces trust, 1215, 1216. 
 
 what relief in, from Statute of Frauds, 1285-1237. 
 
 how time viewed in, 1347, 1348. 
 
 whether, relieves from liquidated damages, 1453. 
 
 relief in, from penalty, 1457. 
 "EQUITY AND GOOD CONSCIENCE," 
 
 meaning and obligation of, 238. 
 I;QUIV0CAL words, not constitute contract, 316. 
 ESCROW, 
 
 Doctrine of delivery as, full, 356-361. 
 
 effect of, 113; delivery as, 349. 
 ESSENCE OF CONTRACT, 
 
 Time as of the, or not, full, 1344-1348. 
 ESTATE, (See Pkesbrvation of Estate.) 
 
 agreement not to buy an, in particular place, 478. 
 
 ESTATE OF INFANT, as to necessaries, 909. 
 ESTATES, auction sales for settling, 528. 
 ESTOPPEL, (See Equitable Estoppel.) 
 
 As a species of law-created contract, full, 264-311; namely, general doc 
 trine, 265-269; by Judicial record, 270-273; by deed, 274-279 
 in pais, 280-310. 
 Unauthorized contracts made binding by, full, 1091-1105. 
 to deny seal, 111; by seal, 119. 
 as to consideration in deed, 124, note, 
 elements of equitable, 287. 
 to deny what the words express, 817. 
 as to authorization of second delivery of escrow, 358. 
 of the one contracting, to set up knowledge not possessed by th 
 
 other, 370. 
 by negligence in signing bill, 648. 
 in one party to set up other's mistake, 701. 
 consent imposed by, 733. 
 against party altering contract, 746. 
 principle of, in waiver, 791, 796, 804. 
 to deny genuineness of forgery, 847. 
 how far infant bound by, 903. 
 whether, extends to government, 993. 
 
 718 
 
INDEX OP SUBJECTS. EXE 
 
 ESTOPPEL — continued. 
 
 how, applicable to corporations, 1023. 
 
 of member of voluntary association, as to contract, 1159. 
 
 to deny blank rightly filled, 1169. 
 
 when, to set up Statute of Frauds, 1237. 
 
 as to license, 1300, 1301. 
 EVADING LAW, by resorting to foreign law, 1379-1382. 
 EVADING TOLLS, liability for, 206. 
 EVIDENCE, (See Oral — Parol — Proof.) 
 
 rules of, as to proof of alteration in contract, not satisfactory, 760. 
 EVIDENT MEANING, given to inaccurate contract, 383. 
 EVIL INTENT, (See Intent.) 
 
 How of, in estoppel, full, 292-295. 
 
 as taking away right of contribution, 216, note. 
 
 what, in fraud, 661, 662. 
 EVIL TENDENCY. (See Illegal — Unlawful.) 
 
 EXCEEDING AUTHORITY, effect of, by agent, 1095-1098. 
 EXCHANGE AND DAMAGES, 
 
 on protest of bill, obligation to pay, not impair, 565. 
 EXECUTE CONTRACT, (See Formalities.) 
 
 How, by partnership, full, 1149-1152. 
 EXECUTED CONSIDERATION, 
 
 Full, 88-93. 
 EXECUTED CONTRACT, 
 
 Wholly, consideration in, full, 80-84. 
 In part, consideration in, full, 85-87. 
 
 defined, 624. And see Executory and Executed. 
 
 needs no consideration, 50; effect of, on rights of parties, 80. 
 
 estoppel in pais creates a species of, 283. 
 
 possession of the writing unimportant in, 351. 
 
 cannot be reversed though illegal, 509 and note. 
 
 made on Sunday, not recover back things transferred under, 545. 
 
 guaranty against law impairing contracts covers the, 557. 
 
 no rescission of, 820. 
 
 infant's, when good, and compared with executory, 919-921. 
 
 infant's voidable, carries title, 927. 
 
 sometimes, binds insane person, 969, 970. 
 
 Statute of Frauds as to sale of goods extends to, 1312. 
 
 effect of executed on oral contract required by statute to be in 
 writing, 1234 ; on one side, 1235. 
 EXECUTED AND EXECUTORY, 
 
 Contract's distinguished as, full, 623-636. 
 EXECUTED ON ONE SIDE, how discharge contract, 822. 
 EXECUTED WAIVER, does not require consideration, 804. 
 EXECUTION, against non-transferable property, 198. 
 
 threat to levy, not duress, 723. 
 
 how, of specialty by agent, 1071. 
 EXECUTION OF AGENCY, principal liable for acts in, 1112. ^~^ 
 
 719 
 
EXT INDEX OP SUBJECTS. 
 
 EXECUTION OF CONTRACT, mistake in, 703. 
 EXECUTOR, EXECUTORS, (See Administrator.) 
 
 how responsible for funeral expenses, 237, 888. 
 
 take deceased's interest in, and bound by what, contract, 435, 860, 
 861. 
 
 of party to joint contract, 863, 864. 
 
 execution of power by two, 1089. 
 
 sues in own name, 1198. 
 
 personally bound by what form of promise, 1252, 1253. 
 EXECUTOR AND HEIR, contracts between, 739, 740. 
 EXECUTORS AND ADMINISTRATORS, 
 
 Promises by, under Statute of Frauds, full, 1250-1254. 
 EXECUTORY, 
 
 The consideration for contract wholly, full, 76-79. 
 EXECUTORY CONTRACT, 
 
 What, as to land must be in writing, full, 1286-1307. 
 
 defined, 624. And see Executory and Executed. 
 
 guaranty against law impairing obligation, covers, 557. 
 
 power wrongfully to rescind, 837-841. 
 
 of insane person, not valid, 966. 
 
 whether Statute of Frauds extends to, 1234, 1313. 
 EXECUTORY AND EXECUTED, (See Promise.) 
 
 Contracts distinguished as, full, 623-636. 
 EXEMPT PROPERTY, conveying away, to defraud creditors, 1207. 
 EXEMPTION LAWS, not impair obligation of contract, 572. 
 EXISTENCE OF THING, (See Non-existence.) 
 
 contracted about, ceasing, 588. 
 EXISTING, whether release must be of thing, 855. 
 EXISTING DEBT, promises concerning, as to Statute of Frauds, 1261. 
 
 whether promise requires fresh consideration, 1266. 
 EXPECTANCY, hard bargains with persons in, 739. 
 EXPRESS AUTHORITY, (See Agent.) 
 
 to agent, how interpret, 1094. 
 EXPRESS CONTRACT, 
 Presumptions of, full, 257-263. 
 Contracts implied from, full, 239-256. 
 
 proved by circumstantial evidence, 263. 
 
 infant's contract for necessaries is not, 908. 
 
 performance of, excused by what impossibilities, 591-609. 
 EXPRESS AND IMPLIED, distinguished, 183, note. 
 EXPRESS POWER, effect of, conferred on agent, 1057-1059, 1094-1098. 
 EXPRESS PROMISE, consideration for implied, 76. 
 EXPRESS STIPULATION, 
 
 Against the impossible, full, 579-583, 590. 
 EXPRESS TERMS, assuming the impossible, 590. 
 EXPRESS WORDS, agent not holden against his, 1078, 1084. 
 EXTENSION OF TIME, 
 
 part payment of bill due as consideration for, 50, note. 
 720 
 
INDEX OP SUBJECTS. VAV 
 
 EXTENSION OF TJMVi — continued. 
 
 further distinctions as to, 62. 
 EXTRA SERVICES, (See Services.) 
 
 agreement to pay officer for, 47. 
 
 voluntarily rendered, 222. 
 EXTRA VIRES, wiiat, and doctrine of, 1012. 
 
 FACT, FACTS, (See Mistake — Silence.) 
 
 Contracts implied as of, full, 257-263. 
 Knowledge or ignorance of, full, 461-466. 
 
 decisions interpreted by the, 50, note. 
 
 mistake of, in estoppel, 293. 
 
 distinguished from opinion, in false representation, 665. 
 
 not nece,ssarily presumed to be known, 692. ' 
 
 mistake -which impairs contract must be of, 704. 
 
 ratification must be with knowledge of, 1225. 
 
 ignorance of, as to Statute of Limitations, 1357. 
 FACT AND LAW, how differently viewed as to fraud, 692. 
 FACTOR, (For synonym, see Commission Merchant.) 
 
 Tilings special to agency of, full, 1138-1141. 
 
 not buy of himself goods of principal, 1040. 
 FAILURE OF CONSIDERATION, effect of, 71-74 ; in specialty, 127. 
 
 caused by act of God, 599; rescission by reason of, 825. 
 
 effect of, determined by law of State of performance, 1394. 
 FAIR PRICE. (See Price.) 
 
 FAITH. (See III Faith.) 
 
 FALSE, in fraud, represention must be, and how, 659. 
 FALSE DESCRIPTION, in deed, rejected by interpretation, 385. 
 FALSE GRAMMAR, (See Grammatical Construction.) 
 
 effect of, on interpretation, 383. 
 FALSE IMPRISONMENT, (See Imprisonment.) 
 
 defined, effect of contract compelled by, 717. 
 FALSE PRETENCE, 
 
 indictable, compared with civil fraud, 654, 656, 661, 665. 
 
 by infant, of being of age, effect of, 902, 903. 
 FALSEHOOD, as element of fraud, 651, 659, 664. 
 FATHER, (See Parent and Child.) 
 
 not pay for necessaries charged to child, 90. 
 
 paying wages to minor child, 230. 
 
 whether infant may charge, for necessaries, 234. 
 
 when liable for son's torts, 899, 900. 
 
 may give property to child, 923. 
 
 rights of, in child's earnings, 1208. 
 FAULT, (See Default.) 
 
 on one side, or less in one, 628, 629. 
 
 on both sides, law helps neither, -489. 
 
 plaintiff in suit should be without, 1418. 
 
 46 721 
 
FOB INDEX OP SUBJECTS. 
 
 FAVORED IN LAW, (See Odious ok Favored.) 
 
 whether estoppels are, 266. 
 FEAR, the, in duress, 718, 719. 
 
 FEBRUARY, how 29th day of, computed in leap year, 1338. 
 FEE, FEES, promise to pay more than statutory, 47. 
 
 what, allowed officers, 208. 
 
 right of officers to, 500. 
 FEMALES, age of majority for, 893. 
 FEME COVERT, (See Married Women.) 
 
 how control enjoyment of estate, 388, uote. 
 FEOFFMENT, formerly, without deed, 151. 
 FERTILIZER, not inspected, no pay for, 472. 
 FICTIONS OF LAW, uses of, 182, 183. 
 
 meaning, estoppel as, 311. 
 
 gfiving escrow a relation back, 3.59, 360. 
 
 creating contract, 182, 1466, 1467. 
 FICTITIOUS PERSON, contract with, void, 886. 
 FICTITIOUS PRINCIPAL, liability of one contracting for, 1120. 
 FIDUCIARY RELATION, (See Confidektial Relation.) 
 
 one in, not contract with self personally, 881, 883. 
 FILLING BLANKS. (See Blanks and Filling them.) 
 
 FIND PROMISEE, when promisor must, 1437. 
 FIRE, (See Building Burned.) 
 
 ordinary, not act of God, not excuse carrier, 593, 596. 
 
 destroying structure under building contract, 597; under lease, 59! 
 FIRM NAME. (See Name of Firm.) 
 
 FIRST AGENT, acting on alternative clauses, elects, 785. 
 "FIXED AND SETTLED DAMAGES," meaning of, 1452. 
 FLEXIBILITY OF MEANINGS, necessity of, 428. 
 FOOD, as necessai'ies for infant, 909. 
 FORBEARANCE, as consideration, 55, 57, 62, 63, 90. 
 
 where no cause of action, 70. 
 
 to attach, 486 ; to pro.secute bastardy, 510. 
 
 of void attachment, 696. 
 
 as consideration for guaranty, 1252. 
 
 of existing debt, a consideration, 1266. 
 FORBIDDEN BY LAW, nothing enforced by law which is, 470, 471. 
 
 thing contracted for being, 594, 613, note. 
 FOREIGN BILL, in what money discharge, 1393. 
 FOREIGN CONTRACT, to violate our laws on our soil, 1377-1382. 
 FOREIGN CORPORATION, bound by acts of employees, 1102. 
 FOREIGN GOVERNMENTS, (See Government.) 
 
 Contracts by and with, full, 997-1002. 
 
 bargains tending to defraud, 526. 
 
 whether and when, may be sued, 989 
 FOREIGN INDORSEMENT, of bill, in what form, 1385. 
 FOREIGN JUDGMENT, how action on, 141. 
 FOREIGN LANGUAGE, words of contract in, how proved, 377. 
 722 
 
INDEX OP SUBJECTS. FKA 
 
 FOREIGN LAW, (See Conflict of Laws.) 
 
 no presumed knowledge of, 462. 
 
 efEect of, 1371. 
 
 in what circumstances, becomes domestic, 1371. 
 
 not protect acts done here against our laws, 1377. 
 
 contract here to violate, 1887. 
 FOREIGN PRACTICE, never becomes domestic, 1371. 
 FOREIGN SOVEREIGN, (See Foreign Governments.) 
 
 contracts by and with, 997, 999. 
 
 sue, and whether be sued, in our courts, 998. 
 FOREIGNER, as to contracts in restraint of trade, 515. 
 FORFEITURE, (See Penalty.) 
 
 of recognizance, 147. 
 
 recovering back money paid to prevent, 215. 
 
 construction leans against, 417, 418. 
 
 contract to do acts subject to, not valid, 471. 
 
 how waived in lease, 794 ; in insurance law, 797. 
 FORFEITURE OF CHARTER, termination of corporation by, 559. 
 FORGED CHECK, consequences to bank, of paying, 700. 
 FORGED DEED, purchaser of, acquires nothing, 676, 699. 
 FORGED NOTE, honest receiver of, as against supposed maker, 676. 
 FORGERY, (See Counterfeit.) 
 
 sale of note a warranty against, 245. 
 
 making good a, by acknowledgment, 295, 345, 847. 
 
 writing not signed, signature not necessary, 342. 
 
 as to innocent third persons, 676. 
 
 payment in, and other effects of, 699, 700; alteration as, 750. 
 FORMAL CONTRACT, superseding informal, 319. 
 FORMAL RELEASE, whether seal essential to a, 874. 
 FORMALITIES, (See Methods of Contracting.) 
 
 At making written contracts, full, 835-364; namely, the writing, 340, 341 ; 
 the signing, 842-348; the delivery, 349-861; incidental questions, 
 362, 363. 
 In specialties, 110-118. 
 FWng of blanks, 1165-1176. 
 
 no, in oral contracts, 335. 
 
 at execution of specialties through agents, 1071. 
 FORMER DEALINGS, with agent, estopping principal, 1104. 
 FORMS, (See Agent.) 
 
 Of contracting through agents, full, 1069-1090 ; namely, in specialties, 
 1070, 1071; simple contracts, 1072-1090. 
 FORMS OF LAW, to be complied with, 32. 
 FORNICATION. (See Illicit Cohabitation.) 
 
 FOURTEEN, 
 
 age of, as to rape, 946 ; capacity for crime, 946 ; marriage, 946. 
 FRACTIONS OP DAY, (See Day.) 
 
 disregarded in computing infancy, 894 ; and time for suing, 1439. 
 
 how otherwise in computing time, 1340, 1341, 1438. 
 
 723 
 
FEB INDEX OF SUBJECTS. 
 
 FRANCHISE, whether legislature can take from corporation its, 5£ 
 
 560; for public use, 573; rival, 575; interfering with, 575. 
 FRAUD, (See Conspikacy — Defraud — Misrepresentation 
 
 Statute of Frauds.) 
 In Ihe contract, full, 637-692 ; namely, relations of this subject to othei 
 638-640; in general of fraud, 641-648; the fraud which vitiates t 
 signing and delivery, 644-649 ; which vitiates the substance of t 
 contract, 650-670 ; nature and effect of the fraudulent contrai 
 671-691. 
 Bi/ and to agents, full, 1111-1115. 
 
 inadequate consideration suggesting, 45. 
 invalidating settlement, 58. 
 absence of, on failure of consideration, 72. 
 
 in consideration in specialty, provable, 121 ; in simple contract, 17 
 law creates promise to return money got by, 226. 
 estoppel in pais to prevent, 282. 
 element of, in estoppel, 292, 295, 298. 
 not set up own, 292. 
 
 one's own, not impair his contracting, 317. 
 in second delivery of escrow, 358. 
 contract tending to, 476; vitiated by, 618. 
 recover back money obtained by, 632. 
 on one side, mistake on other, 702. y 
 law and equity coraipared as to, 732. 
 
 drunkenness combining with, as impairing contract, 734, 983, 98' 
 meant in alteration which proves immaterial, 755.' 
 in altering contract, between signing and delivery, 763.''^ 
 infant liable for his, 902. 
 infant's repudiating contract is not, 921. 
 corporation responsible for its, 1021. 
 both agent and principal liable for agent's, 1118. 
 ratification of contract must include, 1225. 
 
 equity will circumvent, after part performance of bargain not goc 
 because oral, 1237. 
 FRAUD ON CREDITORS, 
 
 Law of, full, 1200-1213. 
 FRAUD ON PUBLIC, no agreement involving, valid, 524. 
 FRAUDULENT COMBINATIONS, suits between parties to, 691. 
 FRAUDULENT CONCEALMENT, 
 
 effect of, as to Statute of Limitations, 1358. 
 FRAUDULENT CONTRACT, 
 Nature and effect of the, full, 671-691; namely, in general and as to thh 
 persons, 671-677 ; as between the parties, 678-691. 
 FRAUDULENT CONVEYANCES, 
 
 Doctrine of , full, 1200-1213. 
 FRAUDULENT RESCISSION, voidable, 679. 
 FREEHOLD, not grant, to commence in future, 442. 
 FRENCH NAME, English translation of, valid signature, 343. 
 724 
 
INDEX OP SUBJECTS. GOD 
 
 FRESH ACKNOWLEDGMENT, 
 
 of indebtedness, intercepts limitations statute, 1362. 
 FRESH CONSIDERATION, (See Consideration.) 
 
 when, in altering contract, 768. 
 
 on promise personally to pay debt of deceased, 1251. 
 FRESH PROMISE, new liability created by, 88-93. 
 
 limitations statute waived by, 95 ; on void contract, 479. 
 " FROM," meaning, in contract, 1343. 
 FRUIT, whether, deemed real or personal property, 1294. 
 FUNDS, two, equity compelling election between, 780. 
 FUNERAL EXPENSES, who liable for, and when, 237, 888. 
 FUTURE DEBTS, debtor's fraud contemplating, 1201, 1212. 
 FUTURE DELIVERY, sale for, 534. 
 
 as to Statute of Frauds, 1316. 
 FUTURE EVENT, delivering contract to take effect on, 357. 
 FUTURE IMPOSSIBILITY, in contract, how, 582. 
 FUTURE INTERESTS, release of, 855. 
 
 GAMING CONTRACTS, (See Bet — Wager.) 
 
 Full, 529-535. 
 GARNISHMENT, laws subjecting debt to, not impair contract, 572. 
 GENERAL AGENT, (See Agent.) 
 
 Doctrine of , full, 1092, 1099-1105. 
 GENERAL CLAUSE, following particular, how interpret, 409. 
 GENERAL EXPRESSIONS, 
 
 yield in interpretation to specific, 406. 
 GENUINE, sale of note warrants it, 245. 
 GIFT, not recover back value of, 50 ; how made, effect, 82, 83. 
 
 not a consideration, pay, 89 ; executed, no pay, 209-211. 
 
 promise is, in morals, 101. 
 
 of land, how the deed, 124. 
 
 effect of hope of, on contract, 224. 
 
 acceptance of, presumed, 351. 
 
 to take effect on giver's death, 361. 
 
 cannot be recalled, 509. 
 
 void deed or sale not, 614. 
 
 executed waiver a, 804. 
 
 to infant, vests in him, 923. 
 
 whether infant's, void, 932. 
 
 one may make, of services, 1208. 
 
 not valid against creditors, 1211. 
 
 to third person, implied in contract, 1221. 
 
 he may accept or reject, 1222. 
 " GIVE," meaning of, 404. 
 GIVE BACK, (See Recover Back.) . 
 
 what infant must, on rescinding his contract, 940. 
 GOD. (See Act of God.) 
 
 725 
 
GEO INDEX OF SUBJECTS. 
 
 " GOOD " CONSIDERATION, meaning, 42, 43. 
 
 in deed of land, 124. 
 GOOD MORALS, (See Immoral.) 
 
 Contracts violative of, full, 505-512. 
 GOOD- WILL, of business, defined, sale of, 520; a consideration, 65. 
 GOODS, (See Chattels — Lost Goods.) 
 
 agreement to supply seller with, falsely labelled, 524. 
 
 contract made through duress of, 722-725. 
 
 how common-law sale of, 1309. 
 
 under Statute of Frauds, 1310-1325. 
 
 meaning of word, in Statute of Frauds, 1315. 
 
 when contract to pay in, is broken, 1438. 
 GOODS AND CHATTELS. (See Picrsonal Property.) 
 
 GOODS ORDERED, implied promise to pay for, 218. 
 
 supplying, waiver of objections, &c., 333. 
 GOVERNMENT, (See Foreign Governments.) 
 
 Contracts by and with the, full, 988-996. 
 
 no estoppel in lease from, 268. 
 
 contracts interfering with machinery of, void, 549. 
 
 threats by the, whether avoid contract, 723. 
 
 effect of assignments to and from, 1183. 
 GOVERNMENT AGENT, not personally liable on contoaot, 994. 
 GOVERNMENT BONDS, whether negotiable, 1186. 
 GOVERNMENT CONTRACTS, 
 
 prepared on blanks, how interpret, 413; impairing, 563. 
 GOVERNMENT OFFICERS. (See Officers.) 
 
 GOVERNMENTAL FUNCTIONS, legislature cannot surrender, 564. 
 GOVERNMENTAL ORDER, 
 
 Contracts obstructing, full, 498-504. 
 GOVERNMENTAL TRUST, contract violative of, 526. 
 GRACE, days of, on promissory note, 431. 
 
 not, on undertaking of common carrier, 432. ■ 
 GRAMMAR. (See False Grammar.) 
 
 GRAMMATICAL CONSTRUCTION, effect of, on interpretation, 402 
 GRANDDAUGHTER, services of, 223, note. 
 GRANT, release operating as, 856. 
 
 by government, how interpreted, 990. 
 GRANT OF LANDS, state cannot resume, 563. 
 GRANTEE, cannot hold deed as escrow, 356, 357. 
 
 effect of, delivering back deed, 821. 
 
 when blank for name of, vitiates, 1167; how validate, 1168, 1170. 
 GRANTOR, when, not set up title subsequent to grant, 277. 
 GRANTOR'S WORDS, taken strongly against him, 414. 
 GRASS, whether realty or personalty, 1297. 
 GROSS, what a covenant in, 1191. 
 GROWING CROPS, whether deemed realty or personalty, 1296. 
 
 right to remove, after sale, 1300. 
 GROWING FRUIT. (See Fruit.) 
 
 726 
 
INDEX OF SUBJECTS. HUS 
 
 GROWTH OF LAW (See Law's Growth.) 
 
 manner of the, 1123. 
 GUARANTY, (See Suretyship.) 
 
 Contract of, under Statute of Frauds, full, 1250-1266. 
 
 of part as full payment, 54. 
 
 defect in consideration for, 696. 
 
 writing, over indorser's name, 1175. 
 
 of payment of mortgage, 1220. 
 GUARDIAN, infant's, how far affirm or disaffirm contract, 936. 
 
 power of insane person's, over his contract, 974. 
 GUARDIANSHIP, of lunatic under statutes, 977. 
 
 HABENDUM, effect of, in deed, 388. 
 
 HABITUAL DRUNKARD, (See Drunkenness.) 
 
 may contract when sober, 982. 
 HALF YEAR, how computed in contract, 1338. 
 HARVESTERS, one authorized to sell, may warrant, 1068. 
 HEALTHY, falsely representing neigliborhood as, 651. 
 HEIR, HEIRS, word, in different instruments, 399. 
 
 deed to, of living person, 416; of deceased, 416. 
 
 how gift to, interpreted, 420. 
 
 death of last joint owner of property vests interest in, 863. 
 
 infant's, affirming or disaffirming contract, 936. 
 HIDDEN DEFECT. (See Latent Defect.) 
 
 HINDRANCE, is waiver as to time, 1431. 
 
 HINDRANCE TO NAVIGATION, not excuse performance, 591. 
 HOLD PROPERTY, infant's authority to, 923. 
 HOLDER, right of the, to fill blanks, 1174. 
 HOLDING OUT, 
 
 Another as agent, full, 1100-1105. 
 HORSE, HORSES, money offered on trial of speed of, not wager, 530. 
 
 falsely representing, sound, 651. 
 
 also place whence came, 670. 
 
 infant hiring, to go to one place and driving to another, 901. 
 
 whether, necessaries for infant, 909. 
 HORSF^RACE, loan to assist in unlawful, 535. 
 HOURS, (See Fractions of Day.) 
 
 generally rejected in legal computation, 1338, 1340. 
 "HOUSE," meaning, in deed, 251. 
 
 indistinct stipulation as to repair of, 316. 
 
 letting, for bawdry, 506. 
 
 incomplete, fire destroying, 597. 
 HUSBAND, (See Infant Husband.) 
 
 liable for necessaries to wife, 235; burying wife, 237. 
 
 effect of duress of, on wife's contract, 727. 
 
 may be wife's agent, 1035. 
 
 giving property to trustee for wife, 1221. 
 
 727 
 
MB INDEX OP SUBJECTS. 
 
 lUSBAND AND WIFE. (See Married Women.) 
 
 Properly rights as between, full, 947-954. 
 no pay for services between, 229. 
 as tenants, by entireties, joint, 475. 
 
 ' I," interpreted as " we," 383. 
 
 DBAS. (See New Ideas.) 
 
 DENTIFICATION, oral, of thing in written contract, 374-376. 
 
 DIOT, is insane person as to contract, 958. See Insane Persons. 
 
 DLE. (See Vain and Idle.) 
 
 GN ORANGE, (See Mistake.) 
 
 careless, in estoppel, 294. 
 
 of grantee, deed effectual in spite of, 352, 353. 
 
 validating unlawful contract, 481-484, 489. 
 
 of impossibility in contract, effect of, 579-581. 
 
 contracting with insane person in, 970. 
 
 of insanity, as to ending agency, 1055. 
 
 of claim, effect on Statute of Limitations, 1357. 
 GNORANCE OF FACT, avoids waiver, 799, 800. 
 GNORANCE OF LAW, 
 
 Full, 461-466. 
 GNORANT PERSON, fraud in misleading an, 657. 
 LL FAITH, as avoiding compromise, 58. 
 LLEGAL. (See Against Lav^ — Part Illegal.) 
 
 LLEGAL ACT, contract to do, void, 613, note. 
 LLEGAL CONSIDERATION, 
 
 effect of, 59, 188; in specialty, provable, 121; in simple contract, 171. 
 LLEGAL CONTRACT, (See Unlawful.) 
 
 contribution in, 216 ; doctrine of, defined, 470. 
 
 agreement based upon previous, invalid, 488. 
 
 effect of executing, 627. 
 LLEGAL OR OF EVIL TENDENCY, 
 Contracts, full, ^Ql-biS; namely, general doctrine, 4:69-490; in obstruction 
 of judicial justice, 491-497; in obstruction of governmental order, 
 498-504; violative of good morals, 505-512; in restraint of trade, 
 513-520; partaking of unlawful conspiracy, 521-528; gaming con- 
 tracts, 529-535 ; violative of Lord's day, 5SQ-546; contrary to stat- 
 utes in regulation of business, 547, 548. 
 LLEGAL ITEMS, in account, 487. 
 LLEGAL OBLIGATION, no consideration, 70. 
 LLICIT COHABITATION, 
 
 bargains to pay for, and promotive of, void, 509. 
 LLITERACT, fraud combining with, as impairing contract, 735. 
 LLITERATE PARTY, contracts should be read to, 346. 
 LLUSTRATIONS, and doctrine, distinguished, 21. 
 
 how, and superfluous, 16, 21, 69, 84. 
 MBECILE, insane person as to contract, 958. See Insane Persons. 
 728 
 
INDEX OP SUBJECTS. INP 
 
 IMBECILE — continued. 
 
 not every, deemed insane, 963. 
 IMMATERIAL, 
 
 distinction of, and material, as to alteration in contract, 751. 
 IMMORAL, consideration, 59. See Illegal. 
 IMMORAL ACT, contract to commit, void, 505. 
 IMMORALITY, secrecy as to, 512. 
 IMMORTAL, whether corporation is, 559. 
 IMPEDIMENTS. (See Mingling.) 
 
 IMPERFECT CONSIDERATION, 
 
 how validated by partial performance, 87. 
 IMPERFECT DEED, how construed, 394. 
 IMPERFECT PERFORMANCE, 
 
 Contract created by law after, and paying for benefit conferred in, full, 
 1346, 1441-1447. 
 IMPERFECT WRITTEN, orally explained, 175. 
 IMPLICATION, in deed, whether estop, 276, 277; rescission by, 816. 
 IMPLIED AUTHORITY, when, to agent, 1059-1068. 
 
 to fill blank in simple contract, 1173-1176. 
 IMPLIED CONTRACTS, 
 Full, 181-311; namely, created by law, 181-238; implied from express, 
 239-256; implied as of fact, 257-263; created by estoppel, 264r-311. 
 IMPLIED BY LAW. (See Cheated by Law.) 
 
 IMPLIED POWER, corporation's, 1005-1013. 
 IMPLIED PROMISES, 
 
 founded on express, 76. And see Created by Law. 
 IMPLIED REQUEST, when, 92. 
 
 IMPLIED STIPULATION, has same effect as express, 241, 242. 
 IMPLIED TRUSTS. (See Resulting Trusts.) 
 
 IMPLIED WARRANTIES, doctrine of, 243-249. 
 IMPOSSIBILITY OF FACT, contract under, 579-582. 
 IMPOSSIBILITY OF LAW, contract under, 583. 
 IMPOSSIBLE, (See Necessity.) 
 
 In law and fact, contracting for the, full, 577-609; namely, express stipur 
 lation against the, 579-583; what is such stipulation or its equivalent, 
 584^590; further of stipulation, and how in its absence, 591-608. 
 contracts to do the, void, 613, note. 
 IMPOSSIBLE TO PARTY, contract includes what is, 591. 
 IMPRISONMENT, as duress, 715-717. 
 
 lawful and unlawful, contract to free one from, 720, 721. 
 how as to, on foreign contract, 1405. 
 IMPRISONMENT FOR DEBT, 
 
 abolishing, not impair obligation of contract, 572. 
 IN PAIS, . (See Estoppel.) 
 Estoppel, full, 280-310; namely, general doctrine, 280-287; misrepresen- 
 tation contrary to duty, 288-291; evil intent, 292-295; reliance and 
 injurious acting on misrepresentation, 286 ; elements in combination, 
 287-307; further views, 308-310. 
 
 729 
 
[NF INDEX OP SUBJECTS. 
 
 [NABILITY TO PEllFORM, 
 
 rescinding contract for, 826; as breach, 1425. 
 
 notice of, before time, justifies rescission, 817. 
 [NACCURACY, (See False Grammar.) 
 
 of language, disregarded in interpretation, 383. 
 [N ALIENABLE, law not permit estate to be made, 442. 
 [NCEPTION OF CONTRACT, 
 
 Conflict of laws as to the, full, 1372-1389. 
 'NCOME, misrepresenting, as fraud, 651. 
 
 NCOMPATIBLE THINGS, one cannot be agent to do, 1037-1041. 
 :NC0MPLETE writings, as parts of oral contract, 168. 
 
 orally explained, 175. 
 INCONSISTENT CONTRACTS, cannot exist together, 185. 
 INDEMNITY, to officer, why good, 483. 
 
 when, not within Statute of Frauds, 1265. 
 INDENTURE, defined, 106; precedence of parts in, 424. 
 
 whether grantor's words in, taken strongly against him, 414. 
 INDEPENDENT PROMISES, 
 
 what stipulations interpreted as, 401. 
 
 breach and performance of, 1423. 
 INDETERMINATE VALUES, payment in, 52, 53, 102. 
 INDICTABLE, agreement to do what is, void, 471. 
 NDIRECT MEANS, not avail where direct would not, 469, 471. 
 NDIVISIBLE PROMISES, part unlawful, 74. 
 NDORSEMENT, (See Foreign Indorsement.) 
 
 not oral, 152; of bill, name in, 343; on Sunday, 543. 
 
 infant's, of note, 921 ; by agent, how allege, 1032. 
 
 what write over, 1175. 
 
 indorser, waiver by, 97; rights of, 431. 
 NDUCEMENT TO CONTRACT, 
 
 falsehood vitiates only when the, 652, 654; mistake in, 698. 
 NEQUITABLE BARGAIN, how cancelled, 741, 742. 
 NEVITABLE, (See Impossible.) 
 
 law forbids suffering from the, 609. 
 NFANCY, ends at what age, and how computed, 893, 894. 
 
 uncertainties in law of, 895; incapacity of, unlike insanity, 955. 
 NFANT, INFANTS, (See Minor -Parent and Child.) 
 
 Contracts by, full, 892-946; namely, in general of, and their capacity, 89Z- 
 905; contracts of, for necessaries, and other laio-created contracts hy, 
 906-916 ; the valid actual contracts of, 917-923 ; the voidable con- 
 tracts of, 924-928; the void contracts of 929-935; their affirmance 
 and disaffirmance of the voidable contract, 986-945. 
 
 necessaries for, 90; binding self for necessaries, 188, 234. 
 
 recognizance binds, when, 148. 
 
 law creates contracts by, 200-202. 
 
 may accept estate, 202. 
 
 bound by conditions of deed, 202. 
 
 when, entitled to earnings, 230; property of, 230. 
 730 
 
INDEX OP SUBJECTS. INS 
 
 INFANT, INFANTS — continued. 
 
 estoppel in lease by, 268. 
 
 promise of marriage by, with an adult, 616. 
 
 discharge of, as to adult copromisor, 871. 
 
 may be agent, 1035 ; agent for, 1057. 
 
 in one State, of age in another, how convey and contract, 1396. 
 INFANT AND ADULT, promise between, 78. 
 INFANT HUSBAND, pay wife's ante-nuptial debts, 201. 
 INFIRMITIES OF AGE, as to power of contract, 958, note. 
 INFLATE THE MARKET, conspiring to, 523. 
 INFLUENCE. (See Fiduciary Relation — Undue Influence.) 
 INFORMAL AND PRELIMINARY CONTRACT, 
 
 when, not binding, 319. 
 INFORMATION, 
 
 a consideration, 66; withholding, in estoppel, 288. 
 
 earning reward for, 331. 
 INITIALS, signature may be by the, 343, 364. 
 INJUNCTION, when escrow is fraudulently delivered, 358. 
 "INJURIOUSLY ALTERING POSITION," in estoppel, 296, 300,306. 
 INJURY, element of, in estoppel, 284, 296. 
 
 interpretation to avoid, 380, note. 
 
 essential in civil suit for conspiracy, 521. 
 
 no legal fraud without, 653. 
 INK, not essential to written contract, 341. 
 INNKEEPER, selling goods of guest, 793. 
 INNOCENT MISSTATEMENT, contract reformed, after, 662. 
 INNOCENT PARTY, enforce illegal contract against other, 489. 
 INNOCENT PERSONS, between, law protects the vigilant, 346, 348. 
 INNOCENT PURCHASER, of things obtained by fraud, 672-677. 
 INQUIRY, being put on, after assignment, 1180 ; at sale, 1210. 
 INSANE PERSON, (See Drunkenness — Mental Weakness — 
 
 Weak Mind.) 
 Contracts by, full, 955-978. 
 
 liability of, for necessaries, 188, 232 ; for benefit to estate, 233. 
 
 law creates contracts by, 200. 
 
 cannot be agent, 1036, 1055. 
 INSANITY, (See Weak Mind.) 
 
 Law of, as to contract, full, 955-978. 
 
 whether contract vitiated by, void or voidable, 618. 
 
 mind tending to, and fraud, 656. 
 
 drunkenness a branch of, 979, 981. 
 
 terminates agency, how when coupled with interest, 1055. 
 INSOLVENCY, (See Bankruptcy.) 
 
 new promise after discharge in, 96. 
 
 stoppage in transitu for, 802. 
 INSOLVENCY LAWS, 
 
 of State, as to impairing obligation of contracts, 566. 
 
 releasing from arrest, effect in another State, 1405. 
 
 731 
 
NT INDEX OP SUBJECTS. 
 
 NSOLVENT ESTATE, 
 
 pay funeral expenses, 237 ; rights in, 1197, 1198. 
 NSPECTION, (See Open to Inspection.) 
 
 by person specified, how waived, 795. 
 NSTRUCTIONS, agent must obey, 1121. 
 
 violating, in filling blank, 1174. 
 NSUKANCE, (See Life Insurance.) 
 
 implied, by common carrier, 432. 
 
 on what principle, valid, 582. 
 NSURANCE COMPANY, answerable for mistakes of agents, 1102 . 
 NSUEANCE POLICY, 
 
 with clause forbidding assignment, assignable in bankruptcy, 197. 
 
 interpretation of, as to answers, 381. 
 
 how interpret description in, 385; imperfect guide to contract, 433. 
 
 unconscionable bargain as to money on an, 738. 
 
 waiver of proof of loss under, 797; of forfeiture under, 797. 
 
 whether, requires writing and seal, 154, 1335. 
 NTEGRITY, what, a contract of employment implies, 246, 1416. 
 NTENT, (See Evil Intent.) 
 
 what the, in signing, 347; in delivei-y, 861. 
 
 absence of evil, may validate unlawful contract, 481. 
 
 material, as to whether a name is a signature, 1244. 
 NTENT' OF LEGISLATURE, interpretation to caiTy out the, 380. 
 NTENT OF PARTIES, 
 
 interpretation to carry out the, 42, 380, 386, 391, 401, 404. 
 
 how when, against law, 420. 
 
 followed in computing time, 1342, 1343. 
 NTEREST, 
 Rights of third persons having an, in contract, full, 1214-1227. 
 
 promise to pay, asi'oonsideration, 49. 
 
 promising, paying in advance, &c. as consideration, 62. 
 
 obligation of contract to pay, not impair, 565, 567. 
 
 altering contract as to, 751. 
 
 agency coupled with an, not revocable, 1051, 1054. 
 
 authority to collect, as to receiving also principal, 1061. 
 
 in or concerning land, meaning, 1291, 1292. 
 
 under conflicting laws of different States, 1374, 1388, 1407. 
 
 effect of paying, on Statute of Limitations, 1363. 
 INTEREST OF PRINCIPAL, acts of agent must be in, 1121. 
 NTERNATIONAL LAW, (See Law or Nations.) 
 
 is also domestic law in every country, 1370. 
 
 conflict of laws is a branch of, 1370. See Conflict of Laws. 
 NTERPLEADER, doctrine of, 351, note. 
 INTERPRETATION, (See Interpreted Contract — Meaning 
 
 — Uncertain Meaning.) 
 Of express powers of agent, and implications therefrom, full, 1058-1067. 
 
 always necessary, 256 ; of deed of land, 42, note. 
 
 of contract and statute similar, 196. 
 732 
 
INDEX OF SUBJECTS. JOI 
 
 INTEKPKETATION — continued. 
 
 as to impossible in contract, 585, 590. 
 
 of alterations in contract, 769, 771, 773, 774. 
 
 how, of release, 856 ; identifying parties by, 885. 
 
 of contracts between government and subject, 990. 
 
 of charter of corporation, 1013. 
 
 of specialties made through agents, 1070; with blanks, 1167. 
 
 express authority to agent, 1094. 
 
 how tlie, of firm's not duly sealed deed, 1152. 
 
 Statute of Frauds and unwritten law combining, 1237. 
 
 of contract under Statute of Frauds, 1249. 
 
 of executor's promise, 1251-1254. 
 
 how, of agreement not to be performed within a year, 1273, 1274. 
 
 not favor liquidated damages, 1451, 1452. 
 INTERPRETATION OF CONTRACT, 
 As to meaning, full, 365-428; namely, wliat regarded in connection with 
 words of writing, 369-378; leading rules of, 379-418; precedence 
 of the rules, 419-423; further explanations, 424-427. 
 As to effect, full, 429-437. 
 INTERPRETATION AND EFFECT, 
 
 Of contracts made and to be performed in different States, full, 1890-1398. 
 INTERPRETED CONTRACT, 
 
 it is the, which courts enforce, 1415-1417. 
 INTOXICATION, what, incapacitates, 980, 981. 
 INTRA VIRES, doctrine of, 1012. 
 
 INTRUSTED WITH INSTRUMENT, alteration by one, 754. 
 INVALID WHERE MADE, contract, invalid everywhere, 1383-1388. 
 INVENTOR, promise by, not to invent, 518. 
 INVOLUNTARY DISABILITY, 
 
 no suit for defendant's, till contract time elapsed, 1428, note, 1440. 
 IRREGULAR PROCEEDINGS, cured by estoppel, 299. 
 IRREVOCABLE, agency expressed as, terminated at pleasure, 1050. 
 ITEMS. (See Illegal Items.) 
 
 JOINT AGENCY, how conferred and executed, 1088, 1089. 
 JOINT CONTRACT, death of party to, 863-865. 
 JOINT CREDITOR, releasing, with proviso, 873. 
 JOINT DEBTOR, creditor's release to, 51, 869. 
 JOINT LIABILITIES, when contribution, 216. 
 JOINT PROMISEE, payment, release, to one, 875. 
 JOINT PROMISORS, presumed promise between, 216. 
 
 how sue, release of one, as to liability of another, 869, 870. 
 JOINT AND SEVERAL, contractors, death of part of, 866. 
 
 promisors, how sue, release of pai't of, 870, 871. 
 
 agency, how executed, 1088, 108^. 
 JOINT-STOCK COMPANIES, as partnerships, 1156. 
 
 733 
 
JUB INDEX OF SUBJECTS. 
 
 JOINT TENANCY, as between husband and -wife, 475. 
 
 effect of death on, 863. 
 JUDGE, mistaking law, 462; may err, 1123. 
 JUDGE-MADE LAW, concerning, 1123, 1124, 1126, 1132. 
 JUDGMENT, (See Contract.) 
 
 Estoppel by, full, 270-273. 
 
 as specialty, 104; as contract, 141. 
 
 whether a " contract " not to be impaired, 556. 
 
 void, who impeach, 614. 
 
 falsehood as to solvency on sale of, 666. 
 
 payment on, not recover back, 725. 
 
 release of, under seal or not, 854. 
 
 when there can be no, the party is released, 867. 
 
 against one, how affects joint promisor, 877; partner, 1146. 
 
 after death of party, 1053. 
 
 assignment of, oral, 1330. 
 
 what delay infers payment of, 1351. 
 JUDGMENT OP RESCISSION, unnecessary at law, 831. 
 JUDICIAL COGNIZANCE, of meanings of what words, 377. 
 
 of law, usage, custom, 445, 446, 1124. 
 JUDICIAL DECISIONS, (See English — State Courts.) 
 
 effect of, 10-14 ; reading the, 19. 
 
 when deemed overruled, 50, note. 
 
 as to definitions, 184, note. 
 
 present legal doctrine in fragments, 369. 
 
 as to laws impairing obligation of contracts, 552. 
 
 change in, as impairing contracts, 569. 
 
 the reasonings in the, 1063, note. 
 
 how operate as precedents, 1126. 
 
 causes of conflicts in the, 1469. 
 JUDICIAL JUSTICE, 
 
 Contracts in obstruction of, full, 491-497. 
 JUDICIAL LEGISLATION, concerning, 1123. 
 JUDICIAL PROCEDURE, (See Pkocedure.) 
 
 the, practically affects contract itself, 436. 
 JUDICIAL PROCEEDINGS, agreements to obstruct, void, 491-497. 
 
 as notice of rescission, 681, 832; how far bind infant, 903. 
 JUDICIAL PROCESS, (See Legal Process.) 
 
 interrupting the doing under contract, 607. 
 
 duress under, effect of contract compelled by, 720, 721. 
 JUDICIAL REASON. (See Reason.) 
 
 JUDICIAL RECORD, 
 
 Estoppel by, full, 270-273. 
 JUDICIAL SALE, law prohibiting, for debt, impairs contract, 572. 
 JURISDICTION, (See Concurrent Jurisdiction.) 
 
 for discharging contract by law, 1400-1402. 
 JURISPRUDENCE, consists of what, 1483. 
 JURY, what for, in contracts implied of fact, 258. 
 
 734 
 
INDEX OP SUBJECTS. LAN 
 
 JUKY — continued. 
 
 to determine question of custom, on evidence, 450. 
 JUST, contract so interpreted as to be, 400. 
 JUSTICE. (See Judicial Justice.) 
 
 KING, no estoppel in lease from, 268. 
 
 efiect of assignments to and from the, 1183. 
 KNOWLEDGE, (See Mutual Knowledge.) 
 
 Of law and fact, full, 461-466. 
 
 effect of, on failure of consideration, 72; in estoppel, 296, 300, 303. 
 
 of offer withdrawn, 328. 
 
 indispensable to valid election, 783 ; to waiver, 799. 
 
 no ratification without, §48, 1109, 1225; whether release, 856. 
 
 whether agent's, binds principal, 1028. 
 
 precludes estoppel of principal to deny agency, 1104. 
 KNOWLEDGE COMMUNICATED, as consideration, 66. 
 KNOWLEDGE OF CUSTOM, necessity and effect of, 451, 468. 
 KNOWLEDGE OF FALSITY, giving legal effect to fraud, 661. 
 KNOWLEDGE OF FRAUD, by purchaser, 673. 
 KNOWLEDGE OF INSANITY, 
 
 how affects party dealing with the insane person, 964, 970. 
 KNOWN PRINCIPAL, how contract through agent, 1082. 
 
 LABOR, of self and family, as to creditors, 1208. 
 LABOR BARGAININGS, as to Statute of Frauds, 1280. 
 LABOR AND MATERIALS, 
 
 whether "goods, waves, and merchandise," 1316. 
 LACHES, in signing contract, 346. 
 
 LAND, (See Convkyance — Deed of Land — Lease — Real 
 
 Estate — Realty — Sale of Land — Title.) 
 Covenants running ioith,,full, 1190-1192. 
 What bargains relating to, require writing, full, 1286-1307. 
 
 consideration for promise to sell, 77. 
 
 whether conveyed without consideration, 124. 
 
 various estoppels as to, 300-303, 306, 309. 
 
 "heirs " in deed, devise, &c. of, 399. 
 
 option, election, to purchase, 784. 
 
 corporation may contract to sell, without seal, 1016. 
 
 effect of oral bargaining for, with part performance, 1237. 
 
 conflict of laws in sale of, 1394, 1395. 
 
 conveyance of, governed by law of its location, 1395. 
 
 contract to convey, — what a breach of, 1433. 
 LANDLORD AND TENANT, (See Lease.) 
 
 letting for bawdry, 506. 
 
 landlord's undertaking to supply water, 588. 
 
 let for future use, then burned, 588; burned during tenancy, 598. 
 
 as to waiving forfeiture in lease, 794. 
 
 73.5 
 
LAW INDEX OF SUBJECTS. 
 
 LANDLORD'S TITLE, tenant estopped to deny, 306. 
 
 LANGUAGE, how, made to convey new ideas, 428. 
 
 LAPSE OF TIME, (See Statute of Limitations.) 
 
 may constitute withdrawal of ofEer, 327. 
 
 how, affects the right, 1351. 
 LARCENY, not, under mistake of title, 465. 
 
 growing crops deemed realty as to, 1296. 
 LATENT AMBIGUITY, 
 
 what, and effect of, 374, 390. 
 
 in contract, how the interpretation, 374. 
 LATENT DEFECT, 
 
 in thing bargained about, 664. 
 
 in manufactured article, how, 801. 
 LATER CLAUSE, compared with earlier, in interpretation, 389. 
 LATER STATUTE, cannot lessen obligation of prior contract, 567. 
 LAW, LAWS, (See Act of Law — Common Law — Deroga- 
 
 tion OF Law — Eqdity — Illegal — Knowledge — Mistake 
 — Operation — Policy — Rules — Unwritten.) 
 Element of, in contract, full, 439-443. 
 Presumed knowledge or ignorance of full, 461-466. 
 The, under wliich was made the contract whereof the obligation cannot be 
 
 impaired, full, 565, 566. 
 Subsequent, as impairing or not the obligation of prior contract, full, ki&I- 
 575. 
 
 nature of, 4-15, 1462-1469 ; no existence without, 460. 
 
 false representation as to, in estoppel, 293. 
 
 knowledge of, conclusively presumed, 378. 
 
 the, controls interpretation of contract, 420. 
 
 how usage becomes, 444-446, 1123. 
 
 custom not contrary to, 453. 
 
 act of incorporation viewed as a, 559. 
 
 of contract, whether part of it, 565. 
 
 misstatement of, not fraud, 665, 692. 
 
 mistake of, not invalidate, 704. 
 
 correcting mistake in court of, 712, 713, 
 
 courts of, following equity rules as to time, 1348. 
 
 discharge of contract by, 1400-1402. 
 LAW AND EQUITY, (See Equity.) 
 
 interpretation same in, 427. 
 
 different redress in courts of, 434. 
 
 concurrent jurisdiction of, in fraud, 690. 
 LAW MERCHANT, is common law, 1073. 
 :.AW OF NATIONS, (See International Law.) 
 
 all people subject to, 1002. 
 LAW OP PLACE. (See Conflict of L.\ws.) 
 
 .AW STUDIES, hints as to, 1-3, 17-21. 
 :-AW'S CHANNELS, 
 
 rights and stipulations of contract must flow in, 442, 474. 
 736 
 
INDEX OP SUBJECTS. LEG 
 
 LAWS COMMAND, creates promise to obey, 204. 
 LAW'S GROWTH, (See Growth.) 
 
 as to compensation for benefits conferred, 1443. 
 LAW'S REQUIREMENT, fulfilling, no consideration, 48. 
 
 creates promise to obey, 204. 
 LAWFUL, contract so interpreted as to be, 392. 
 LAWFUL ON FACE, 
 
 yet meant to promote unlawful, contract ill, 476. 
 LAWFUL ITEMS, of account, with unlawful, 487. 
 LAWSUIT, LAWSUITS, (See Action.; 
 
 threat of, not duress, 728. 
 
 not bring or defend, after death, 859. 
 
 husband must join wife in her, 949. 
 
 not necessarily occupy more than one year, 1282. 
 
 what elements must combine to sustain, 1418. 
 LAWYER, (See Solicitor.) 
 
 rights of, before officers, committees, and courts, 499. 
 LEAD-PENCIL, written contract in, 341. 
 LEAP YEAR, how 29th Feb. in, computed, 1338. 
 LEASE, (See Landlord and Tekant.) 
 
 not assignable, taken in execution, 198. 
 
 renewal, 199, note. 
 
 estoppel by, as to mutuality, 268; condition in, 616. 
 
 buildings under, destroyed by act of God or public enemy, 598. 
 
 by what act forfeiture of, waived, 794. 
 
 by agent, principal's rights in, 1080. 
 
 covenant to renew, runs with land, 1191. 
 
 whether, must be in writing, 1327. 
 LEASE AND RELEASE, deed of, operating as of other sort, 395. 
 LEATHER, specialty written on, not good, 110. 
 LEGACY, (See Bequest.) 
 
 services in expectation of, 224. 
 
 forbearance to press payment of, as fresh consideration, 1252. 
 LEGAL CAPACITY, law creates contracts where no, 200. 
 LEGAL DECISIONS. (See Judicial Decisions.) 
 
 LEGAL DOCTRINE, 
 
 nature of, 19; distinguished from illustration, 21. 
 
 in the authorities, fragmentary, 369. 
 LEGAL DUTY, (See Duty.) 
 
 law creates promise to perform, 184. 
 
 excused by act of God or public enemy, 595. 
 
 moral and, distinguished, 660. 
 
 infant's, implies promise, 906 ; promise to perform, valid, 918. 
 
 infant protected in doing, 918. 
 LEGAL EFFECT, (See Altering.) 
 
 mistaking, 705; alteration not varying, 751. 
 
 changing the, by alteration, 755. 
 LEGAL FICTIONS. (See Fictions of Law.) 
 
 47 737 
 
LIF INDEX OP SUBJECTS. 
 
 LEGAL FRAUD, distinguished from moral, 662. 
 
 LEGAL INTEREST, enforceable by suit, 1074. 
 
 LEGAL PRINCIPLES, conflicts between differing, 994, note, 1152. 
 
 LEGAL PROCESS, (See Judicial Process.) 
 
 statute withdrawing debtor's property from, invalid, 572. 
 LEGAL REASON, (See Reason.) 
 
 nature of, 14-16, 19. 
 LEGAL RIGHT, any, may be waived, 94-98. 
 LEGISLATION, contracts to procure, 501. 
 LEGISLATIVE COMMITTEE, right of argument before, 499. 
 LEGISLATIVE CONTROL, private property under the, 574. 
 LEGISLATIVE GRANT, estops State, 310. 
 
 LEGISLATURE, power of, over private act of incorporation, 559-561. 
 LESS THAN DUE, effect of paying, 50. 
 LESS IN FAULT, party, recover back, 629. 
 LESS SUM, of money, not consideration for greater, 46. 
 LESSEE, duty of, as to burned house, 598. 
 LETTER, 
 
 how contract by, 322, 328; under Statute of Frauds, 1248, 1249. 
 LETTER OF ATTORNEY, by infant, whether good, 930. 
 LETTING, house, carnage, &c. to promote bawdry, void, 506. 
 LEX FORI, doctrine of, 1371, 1403. 
 LEX LOCI, doctrine of, 1371, 1403. 
 LIABILITY OF AGENT, 
 
 As depending on form, of contract, full, 1069-1090. 
 By reason of his frauds, full, 1111-1115. 
 Other grounds of, full, 1116-1121. 
 LIBEL. (See Bawdy Libel.) 
 
 LIBERAL CONSTRUCTION, of things favored, 417. 
 LICENSE, meaning, 1299. 
 
 oral, not effectual against specialty, 131. 
 
 when receiving fee for, validates, 286. 
 
 to recover trees, 398." 
 
 after st^ti^,ory, thing may still be made punishable, 564. 
 
 promise to waive stipulation viewed as, withdrawing, 807. 
 
 alien enemies contracting under, 1000. 
 
 to auctioneers, 1132. 
 
 to do a thing on land, 1292, 1299-1301. 
 LIEN, (See Mortgage.) 
 
 recovering money paid to discharge, 215. 
 
 created by estoppel, 300, note. 
 
 taking off attached, impair.? contract, 572. 
 
 waiver of, 793; must remove, to change attorney, 1129. 
 
 of auctioneer, 1133; broker, 1136; factor, 1140. 
 
 what, requires writing, 1333. 
 LIFE, oral promise to support during, 1277; to work during, 1278. 
 LIFE INSURANCE, (See Insurance Policy.) 
 
 what the contract of, 590. 
 
 738 
 
INDEX OP SUBJECTS. MAI 
 
 LIFE INSURANCE — continued. 
 
 non-fulfilment of condition of, in policy, 586. 
 LIFE OR LIMB, menace of, as duress, 718. 
 LIGHTNING, deemed act of God, 593. 
 LIKE SORT, restricting general -words tc things of, 409. 
 LIMITATIONS. (See Statute or Limitations.) 
 
 LIMITED CAPACITY, 
 
 as partial insanity, 958, 961, 963. See Insane Person. 
 LIMITING CARRIER'S LIABILITY, 
 
 provisions in contract, interpreted strictly, 411. 
 LIQUIDATED DAMAGES, 
 
 The provision for, in a contract, full, 1449-1454. 
 LIQUOR, unlawfully sold, items for, 74. 
 
 LIQUOR LICENSE, no protection against subsequent laws, 564. 
 LITIGATION, avoiding, a consideration, 57, 58. 
 LOAN, deed to secure, construed as mortgage, 173, 195. 
 in aid of gambling contract, 535. 
 on Sunday, whether recoverable, 542. 
 
 authority to, money, not justify taking usurious interest, 1059. 
 LOBBYING, contracts for, 499. 
 
 LOCAL MEANINGS, of words, not judicially recognized, 377. 
 LOCALITY, custom or usage is restricted in, 446. 
 LOCATE LAND, parol evidence to, 390. 
 LOCATION OF RAILROAD, falsehood as to, is fraud, 665. 
 LODGING-ROOM, contract for letting, whether oral, 1302. 
 LORD'S DAY, 
 
 Contracts violative of, full, 536-546. 
 notice on, of rescission, 832. 
 
 part payment on, as to Statute of Limitations, 1363. 
 contract on, valid where made, good everywhere, 1376. 
 money falling due on, when payable, 1438. 
 LOST DEED, how when not recorded, 394. 
 LOST GOODS, duty to restore to owner,«51, note.^ ^ 
 LOTTERY, loan to aid in unlawful, 535, aiTW&se 
 
 after licensed, may be prohibited, 584.' 
 LOTTERY TICKET, goods held under unlawful, 535. 
 LOVE AND AFFECTION, as consideration, 42, 43. 
 LUCID INTERVAL, insane person may contract in, 959. 
 LUMBER, is not real estate, 1294. 
 LUNAR MONTH, what is a, 1339. 
 
 LUNATIC, is person insane, as to contract, 958. See Insane Pekson. 
 LYING IN TRADE, what permissible, 664. 
 
 MACHINE, contract for contriving a, may be oral, 1316, note. 
 MACHINERY, put in part into a building, then burned, 588. 
 MADE CERTAIN, what can be, is certain, 416. 
 MAIL-CARRIER, liability of, for stolen money, 63. 
 
 739 
 
MAK INDEX OF SUBJECTS. 
 
 MAILS, (See Post Office.) 
 
 contracts interfering with carrying, 503. 
 MAINTENANCE, contracts involving, 497. 
 
 makes choses in action unassignable, 1179. 
 MAJORITY, age of, and how computed, 893, 894. 
 
 attaining, as to avoiding contract, 937, 938, 941. 
 MAJORITY OF PERSONS, the, executing agency, 1088, 1089. 
 MALUM PROHIBITUM, contract, not valid, 471. 
 MALUM IN SE, contract, not valid, 471. 
 
 or not, as to contract to violate foreign lav, 1387. 
 MAN OR WOMAN, wager whether one was a, 531. 
 MANNER AND FORMS, (See Formalities.) 
 
 Of contract hy agent, full, 1069-1090; namely, as to specialties, 1070, 
 1071 ; as to simple contracts, both oral and written, 1072-1090. 
 MANNER OF PAYMENT, not impair contract by changing, 567. 
 MANNER OF PERFORMANCE, waiver of, 795. 
 MANUFACTURE, one may agree to, for only particular person, 518. 
 
 waiver of latent defect in, 801. 
 
 not, " goods, wares, and merchandise," oral agreement to, 1316. 
 MANUFACTURED ARTICLES, 
 
 one authorized to sell, may warrant, 1063. 
 MANUFACTURER, how, may restrict self, 518. 
 MAPS, considered in interpreting contract, 382. 
 " MARGINS," (See On Margin.) 
 
 meaning, dealings in, 534, 585. 
 MARINE INSURANCE. (See Insurance.) 
 
 MARK, signature by, 345. 
 MARRIAGE, (See Consideration — Prior, &o.) 
 
 Property rights resulting from, and difficulties of their adjustment by law, 
 full, 947-954. 
 
 as consideration, C7, 1267; presumption of, 201, 263. 
 
 registry laws not extend to conveyances by, 309. 
 
 promise of, as pay for illicit commerce, 509, 511. 
 
 promise to procure, 511. 
 
 how as to law impairing obligation of contract, 557. 
 
 infant bound by requirements of, 906. 
 
 of female principal, terminates agency, 1056; how of female agent, 
 how of single man, 1056. 
 MARRIAGE BROCAGE, contract, void, 511. 
 
 MARRIAGE OF FEME, gives escrow effect from first delivery, 859. 
 MARRIAGE LAW, void and voidable in, 619. 
 MARRIAGE PROMISE, release from, a consideration, 67, note. 
 
 between married persons, 580; infant and adult, 616. 
 
 voidable by infant, 925; what a breach, 1429. 
 
 whether and when, in writing, 1271, 1275. 
 MARRIAGE SETTLEMENT, (See Antk-Ndptial Contracts.) 
 
 validity of, and whether in writing, 1269, 1270, 1276. 
 MARRIED INFANT, deed by, whether void, 926. 
 740 
 
INDEX OF SUBJECTS. MER 
 
 MARRIED WOMEN, 
 
 Contracts by, full, 947-954. 
 
 ■whether bound by contract, 29 ; recognizance, 148. 
 
 estoppel in lease by, 268. 
 
 devise to, powers contrary to law, 388. 
 
 bond of, void, 613, note. 
 
 may be agents, 1035. 
 MASTER, cannot assign to another his apprentice, 1182. 
 MASTER AND SERVANT. (See Agent.) 
 
 MATERIAL, falsehood must be, to vitiate, 652. 
 
 for contract to be reformed, mistake must be, 711. 
 
 distinction of, and immaterial, as to alteration in contract, 751. 
 MATERIALS, on what, write contracts, 110, 340. 
 MATERIALS AND LABOR, 
 
 whether "goods, wares, and merchandise," 1316. 
 MATTER IN PAIS, 
 
 Estoppel by, full, 280-310. See In Pais. 
 MAXIMS, what can be made certain is certain, 416. 
 
 nemo ex proprio dolo consequitur actionem, 642. 
 
 ubi jus ibi remedium, 864. 
 
 he who seeks equity must"do equity, 970. 
 
 qui facit per alium facit per se, 1026. 
 
 the whole of a thing comprehends each particular part, 1168. 
 MAYHEM, menace of, as duress, 718. 
 
 MEANING OF CONTRACT, (See Interpretation — Uncer- 
 
 tain — Words.) 
 
 misapprehending, 346 ; reforming for mistake of, 705. 
 MEANING AND EFFECT, distinguished in interpretation, 365. 
 MEANING UNCERTAIN, no contract, 117, 316, 390. 
 MEANINGLESS WORD, rejected in interpretation, 385. 
 MEANS. (See Indirect Means.) 
 
 MECHANIC'S LIEN, an implied contract, 192, note. 
 MEDICAL AID, in emergency, 231. 
 MEDICAL ATTENDANCE, a necessary for infant, 909. 
 MEDICAL PRACTITIONER. (See Physician.) 
 
 MEMBERS OF CORPORATION, contracting, 1022. 
 MEMBERSHIP, as giving authority to bind associates, 1157-1159, 1162. 
 MEMORANDA, written, as parts of oral contract, 168, 180. 
 MEMORANDUM OR NOTE, 
 Required by Statute of Frauds, full, 1242-1249. 
 
 the, in sales of personalty under Statute of Frauds, 1322. 
 MENTAL WEAKNESS, fraud and, impairing contract, 735. 
 MERCANTILE PAPER, (See Negotiable Paper.) 
 
 rights in, after altered, 750. 
 
 how far, binds infant, 925. 
 
 " month " in, computed as calendar, 1389. 
 
 falling due on Sunday, when payable, 1438. 
 
 at what time bring suit on, 1439. 
 
 741 
 
MIS INDEX OP SUBJECTS. 
 
 " MERCHANDISE," meaning, in Statute of Frauds, 1315, 1316. 
 MERGER, of old contract in new, 68, 768. 
 
 of simple contract in specialty, 129. 
 
 release from contract by, 876. 
 METES AND BOUNDS, controlling, in deed of land, 408. 
 METHODS OF CONTRACTING, (See Formalities.) 
 
 By corporation, full, 1014-1023. 
 MIDNIGHT, day begins and ends at, 1340. 
 " MILL," meaning, in deed, 251. 
 
 MINDS IN ACCORD, ^ (See Consent — Fraud — Mutual Con- 
 sent.) 
 
 in contract under Statute of Frauds, 1248. 
 MINGLING, of impediments to consent in contract, 733. 
 
 of capacity and incapacity, in infant, 895. 
 
 of drunkenness and fraud, 983. 
 MINING RIGHT, whether orally conveyed, 1295. 
 MINISTERIAL POWER, may be delegated, 1067. 
 MINOR, (See Infant.) 
 
 enforcing pay for services violative of statute, 472, 482. 
 MINORITY, no ratification during, 941. 
 MISDESCRIPTION, at sale, through mistake, 701. 
 
 correcting, in deed, 709. 
 MISFEASANCE, agent liable for own, 1117, note. 
 MISLEAD, design to, in estoppel, 295. 
 MISREPRESENTATION, (See Fraud.) 
 
 element in estoppel, 286-291 ; acting on, 296. 
 
 whether, fraud or mistake, 640. 
 
 as element in fraud, 650, 651, 663, 664. 
 MISTAKE, (See Carelessness — Ignorance.) 
 
 Of law vr fact, full, 461-466. 
 
 /» the contract, full, 693-714; namely, the doctrine at law, 695-706; re- 
 forming and rescinding in equity, 707-713. 
 
 impairing compromise, 58. 
 
 as to existence of thing, 70. 
 
 absence of, on failure of consideration, 72. 
 
 seal omitted by. 111. 
 
 orally showing written contract void for, 171. 
 
 eiiect of, in estoppel, 293, 294. 
 
 of fact, not of law, validating unlawful contract, 481. 
 
 as to existence of thing, avoids contract, 587. 
 
 viewed as fraud, 661, 662. 
 
 correcting, in written contract, 752, note. 
 
 to correct, equity changes rule as to survivorship, 864. 
 MISTAKE OF FACT, when, validates illegal contract, 216. 
 
 money paid under, recover back, 632. 
 MISTAKE OF LAW, all presumed to know the law, 462, 631. 
 
 not recover back money paid under, 631. 
 
 whether, vitiates contract, 704, 705. 
 742 
 
INDEX OF SUBJECTS. MUT 
 
 MODIFIED, (See Altering op Contract.) 
 
 how specialty is, 133. 
 MONDAY, when money falling due on Sunday payable on, 1438. 
 MONEY, (See Kecovek Back.) 
 
 as consideration, 41, 45, 46. 
 
 suit to regain, from tort-feasor, 186. 
 
 paid on Sunday, dischai-ges debt, 546. 
 
 promise to pay, under duress of goods, 725. 
 
 one must pay in, after breaks promise to pay in other thing, 786. 
 
 whether, a necessary for infant, 914. 
 
 infant having, whether charge self for necessaries, 915. 
 
 corporation may borrow, 1011. 
 
 on promise to pay, whether must be demand, 1437. 
 MONEY ON DEPOSIT, accepted, not dispute title, 307. 
 MONOMANIAC, insane person as to contract, 958. See Insane Person. 
 
 not every, deemed insane, 963. 
 MONOPOLY, odious, 513; bargains to create, 523. 
 MONTH, what lunar, what calendar, which in contract, 1339. 
 MONUMENTS, efiect of, in deed of land, 408. 
 MORAL DUTY. (See Legal Duty.) 
 
 MORAL INNOCENCE, effect of, on legal fraud, 660-663. 
 MORAL OBLIGATION, as consideration, 44. 
 MORALITY, contracts contrary to, invalid, 505-512. 
 MORALS, (See Goou Morals.) 
 
 promise without consideration binding in, 101. 
 
 how protected by law, .505. 
 MORE THAN ONE CONTRACT, in one writing, 166. 
 MORTGAGE, oral evidence to except, out of covenants, 169. 
 
 by deed, with oral defeasance, 173, 195. 
 
 signed without reading, 346. 
 
 to secure both legal and illegal, 487. 
 
 giving, on Sunday, 538; corporation may, 1011. 
 
 one partner cannot, firm's land, 1151. 
 
 right of suit on promise in deed to pay, 1220. 
 
 governed by law of place where land lies, 1395. 
 MORTGAGEE, right of, to sell, 1051. 
 MOTIVE, and consideration, compared, 37. 
 MOVE AWAY, what agreement to, good, 478. 
 MUNICIPAL CORPORATIONS, bound by estoppel, 310. 
 
 contracting through agent, 993, 994. 
 
 negotiability of bonds of, 1187. 
 
 whether limitations statutes run against, 1365. 
 MUTUAL, whether mistake must be, 702, 703. 
 
 MUTUAL CONFIDENCE, influence of, in invalidating contract, 740. 
 MUTUAL CONSENT, (See Consent.) 
 
 As element in contract, full, 312-334; namely, bij mutual written or spoken 
 words, 315-320 ; by offer accepted in terms, 321-329 ; by offer acted 
 upon, 330-333. 
 
 743 . 
 
iSTBO INDEX OP SUBJECTS. 
 
 MUTUAL CONSENT — continued. 
 - Rescinding contract by, full, 812-822. 
 
 want of, in fraud, 638; in mistake, 693. 
 
 partial rescission by, 836. 
 
 doctrine of, avoids contracts of insane persons, 956. 
 
 memorandum under Statute of Frauds, not a substitute for, 1246, 
 1248. 
 
 no, contrary to law of place where given, 1383. 
 MUTUAL DEFAULT, implies rescission, 816. 
 MUTUAL FAULT, no redress in, 489. 
 
 MUTUAL KNOWLEDGE, parties', as element in interpretation, 371. 
 MUTUAL MISTAKE, avoiding contract, 587. 
 
 contracts reformed for, 707, 708. 
 MUTUAL PROMISES, (See Mutual Consent.) 
 
 Effect of, as consideration, full, 76-79. 
 
 construed, or not, as dependent, 401. 
 
 as consideration for wager, 532. 
 
 how contract by, rescinded, 818. 
 
 of marriage, valid, 1271. 
 MUTUAL WRONG, parties in, 627-629. 
 MUTUALITY, when essentia], 78; in estoppel, 268. 
 
 interpretation leans to, iu contract, 417. 
 
 NAME OF AGENT, 
 
 one carrying on business in, liable for his contracts, 1059. 
 NAME OF FIRM, right of purchaser to use old, 520, note. 
 NAME OF MAKER, how the, in specialty, 116. 
 NAMES OF PARTIES, 
 
 Suit in what, after assignment, full, 1177-1199. 
 
 in specialties, 116, 117; in the signature, 343. 
 
 in written contract, identified orally, 374. 
 
 how, when subscribed by agent, 1071, 1072. 
 
 in contracts by firm, and how sign, 1149, 1150. 
 NARROWER EXPRESSIONS, interpreted as limiting wider, 406. 
 NATURAL EQUITY, how far law, 1463-1466. 
 NATURE OF AGENCY, as indicating powers of agent, 1066. 
 NATURE OF AGREEMENT, considered in interpretation, 401. 
 NATURE OF FALSITY, in fraud, 659. 
 NATURE OF THINGS, laws contrary to, void, 559. 
 NATURE OF TRANSACTION, 
 
 to be considered in interpretation, 397. 
 NECESSARIES, (See Infant — Insane — Married Women.) 
 
 Infant's liability for, and what are, full, 906-916. 
 
 recognizance as, 148 ; law's promise to pay for, 183, note, 188. 
 
 medical aid as, 231; to various classes of persons, 232-237. 
 
 insane person liable for, 968. 
 NECESSARY POWERS, collateral, implied from express, 1060. 
 . 744 
 
INDEX OP SUBJECTS. NON 
 
 NECESSITIES OF BUSINESS, 
 
 extending infant's power of contract, 921. 
 NECESSITY, giving escrow relation to first delivery, 359. 
 
 as excusing, 590, 609. And see Impossiblk. 
 
 authorizing appointment of subagent, 1067. 
 "NECESSITY OR CHARITY," as to Sunday contracts. 541. 
 NEED, interpretation only for cases of, 379. 
 
 NEGATIVE PROPOSITIONS, not prove, by cited cases, 920, note. 
 NEGLECT, agent answerable to principal for, 1121. 
 
 may be a breach of contract, 1485. 
 NEGLECT OF DUTY, promise of indemnity for, iU, 485. 
 NEGLIGENCE, (See Carelessness.) 
 
 in estoppel, 294; in signing bill, estops, 648. 
 
 how, in taking forgeries, 700. 
 NEGLIGENT PERSON, inferior in rights to vigilant, 672, note, 673, 
 NEGOTIABILITY, altering by adding words of, 751. 
 NEGOTIABLE, 
 
 What choses in action are, full, 1184-1189. 
 
 meaning and effect of, 1189. 
 NEGOTIABLE PAPER, (See Mercantile Paper.) 
 
 assignee of, executed in fraud, 647-649. 
 
 fraudulently obtained, holder's rights in, 674, 676. 
 
 obtained by duress, 728. 
 
 altered, then restored, 756. 
 
 corporations have power to issue, 1009, 1013, note. 
 
 how suit on, may be brought the day it falls due, 1439. 
 NEGOTIATIONS, mere, no contract, 324. 
 NEIGHBORHOOD, law local to, is custom, 446. 
 NEW CONSIDERATION, (See Consideration.) 
 
 rendering contract good when old imperfect, 85, 86. 
 NEW CONTRACT, substituting, for old, 614, 846. 
 NEW IDEAS, language flexible, to permit expression of, 428. 
 NEW PROMISE, effect of, after limitations bar, 1359, 1360. 
 NEW STATUTE, not validate contract ill under old, 479. 
 NEW TERMS, acceptor of offer introducing, 323. 
 NEW TRANSACTION, presumed on same basis as former, 457. 
 NEW WORDS, when courts judicially recognize, 377. 
 NINE, age of, as to dower, 946. 
 NON COMPOS MENTIS, (See Insane Person.) 
 
 inability of, to contract, 958. 
 NON-EXISTENCE OF THING, in contract, species of impossible, 584. 
 
 rendering contract void, 587, 588. 
 NON-EXISTING, contract about what is, 695. 
 NON-EXISTING PERSON, contract with, void, 886. 
 NON-EXISTING THING, no consideration, 70. 
 NON-FEASANCE, 
 
 compared with misfeasance, as to agent's liability, 1117, note- 
 NON-JUDICIAL DAY, Sunday is, 536. 
 
 745 
 
OFF INDEX OP SUBJECTS. 
 
 NONSUIT, not work estoppel, 270. 
 
 NOTE, (See Commercial Paper — Promissory Note.) 
 
 payable in specific articles, how, 1436. 
 NOTE OR MEMORANDUM, 
 Required by Statute of Frauds, full, 1242-1249. 
 
 the, in sales of personalty under Statute of Frauds, 1322. 
 NOTES AND BILLS, (See Bill of Exchange.) 
 
 must be in writing, 1332, 1335. 
 NOTICE, (See Knowledge.) 
 
 of withdrawal of offer, 826. 
 
 of rescission, 681, 817, 832; effect of, to agent, 1028. 
 
 on termination of agency, 1105; dissolution of partnership, 1148. 
 
 when, of assignment, 1180. 
 
 promise to pay in seven days after, how compute, 1341. 
 NOTICE OF PROCEEDINGS, party entitled to, may waive, 793. 
 NUISANCE, violations of Lord's day, as, 536. 
 NUMBERED DAYS, how compute, in contract, 1341. 
 NURSING, a necessary for infant, 909. 
 
 OATH, estoppel to deny truth of, 289. 
 OBLIGATION, meaning, 109; of contract, 565. 
 void in law, no consideration, 70. 
 one under, acquires what rights by paying, 213. 
 OBLIGATION OF CONTRACTS, 
 
 Constitutional protection of the, full, 550-576; namely, general doctrine, 
 551-554; the parties and the contract, 555-564; the laws under 
 which the contract is made, 565, 566; subsequent laws as impairing 
 or not the obligation, 567-575. 
 not impaired by diminishing salary or abolishing office, 208. 
 OBLIGATORY, governmental contracts are, on government, 989. 
 OBLIGEE, 
 
 when blank for name of, vitiates, 1167; how validate, 1168, 1170. 
 OBSCURITIES, in written contract, whether illumine orally, 375, 390. 
 OBSTACLES, what, not excuse non-performance, 591. 
 OBSTRUCTING, 
 
 Administration of justice, contracts, full, 491-497. 
 OBSTRUCTING PERFORMANCE, breaks contract, 1431. 
 OCCUPATION, infant's, as to necessaries, 909. 
 ODIOUS, fraud and deceit are, 641. 
 
 ODIOUS OR FAVORED, distinction of, in interpretation, 417. 
 OFFER, without acceptance, not binding, 78, 321. 
 mistake in making, accepted, 702. 
 making, as foundation of suit, 1433. 
 OFFER ACCEPTED, 
 
 Contract by, full, 321-329. 
 OFFER ACTED UPON, 
 Contract by, full, 330-333. 
 746 
 
INDEX OF SUBJECTS. ORA 
 
 OFFICE, duty to accept, 208. 
 
 legislature may abolish, 208. 
 
 contracts concerning, 498-500. 
 
 contracts to bestow profits of, 498; for appointment to, 498. 
 OFFICER, OFFICERS, public, when entitled or not to pay; 207, 208. 
 
 indemnity to, 483, 485. 
 
 contracts to influence, 499, 500. 
 
 bargains with, as to official acts, 500. 
 
 legislation may modify or abolish salaries of public, 562. 
 
 official acts of what, void, 613, note. 
 
 government contracts through its, 992. 
 
 corporation may contract by its, 1017. 
 
 contracting with corporation, 1022. 
 
 presumed to have done his duty, 1126. 
 OFFICER OF COURT, attorney is, 1125. See Attorney-at-Law. 
 OFFICERS' FEES, bargains concerning, 47. 
 OFFICERS OF GOVERNMENT, (See Government.) 
 
 Contracts by and with, full, 988-996. 
 OFFICIAL CHARACTER, presumptions from, 1126, 1127. 
 OFFICIAL CONDUCT, bargains to influence, 499. 
 OLD CHARTER, how interpret, 377. 
 OLD CONTRACT, when consideration for new, 768. 
 OMISSION, in written, when orally supplied, 175. 
 
 of signatures, 348; of word, 383. 
 " ON DEMAND," promise to pay money, how, when pay, 1437. 
 " ON MARGIN," meaning of, 377. 
 ONE PARTY, mistake only in, 701. 
 
 ONE SIDE, contracts performed on, as to Statute of Frauds, 1283. 
 ONE OF TWO THINGS, one impossible, how, 606. 
 
 election, — by which party, 785, 1435. 
 OPEN TO INSPECTION, or not, qualities of goods, 664. 
 OPERATION OF LAW, (See Law — Legal Effect.) 
 
 Release by, full, 867-878.. 
 Assignment by, full, 1196-1198. 
 OPERATIVE, contract to be made, by interpretation, 391, 392. 
 OPINION, expression of, as fraud, 665. 
 OPPRESSIVE CONTRACT, whether, void, 478. 
 " OPTIONS," meaning, dealings in, 534. 
 " OR," may be interpreted as " and," 883. 
 ORAL, (See Parol.) 
 
 infant's, ratification of written, 944. 
 
 discharge of sealed agency, 1050. 
 ORAL AGREEMENT, effect of mistake in reducing, to writing, 707. 
 ORAL ALTERATION, clause in written contract forbidding, 767. 
 ORAL AUTHORITY, (See Blanks and Filling — Parol.) 
 
 writing may be by, 1049 ; blanks filled by, 1168, 1173. 
 ORAL CONSENT, in lieu of signing, 342. 
 
 not, under Statute of Frauds, 342. 
 
 747 
 
OWN INDEX OP SUBJECTS. 
 
 ORAL CONTRACTS, (See Parol — Simple.) 
 
 Explained, full, 151-161. 
 
 law-created contract not, 199. 
 
 no foi-malities required in making, 335. 
 
 ill because not written, good when performed, 634. 
 
 within Statute of Frauds, whether void or voidable, 1238, 1323. 
 
 performable within year, good after, 1284. 
 
 good where made, valid elsewhere, 1375. 
 
 invalid where made, everywhere invalid, 1384. 
 ORAL CONVEYANCE, estoppel making, good, 301, 309, 1237. 
 ORAL ESTOPPEL, not limited by Statute of Frauds, 309. 
 ORAL EVIDENCE, (See Parol Evidence.) 
 
 of consideration, 75 ; how of, 171-178. 
 
 not contradict written contract by, 169, 170, 176. 
 
 what, to supplement memorandum under Statute of Frauds, 1249. 
 
 whether show place of performance by, 1392. 
 ORAL LICENSE, (See License.) 
 
 not supersede specialty, 131. 
 ORAL PROMISE, consideration for written, 76. 
 ORDER. (See Governmental Order.) 
 
 ORDER OF PAYEE, how sue on promise of payment to, 1179, 1184-1189. 
 ORDER OF SOCIETY, 
 
 Sunday contract as " labor " disturbing the good, 539. 
 " ORDINARY CALLING," Sunday contracts within, 538. 
 ORDINARY CARE, in fraudulent contract, 655. 
 ORDINARY COURAGE, in duress, 719. 
 ORE, whether real or personal property, 1295. 
 ORIGINAL OBLIGATION, 
 
 executor's, not within Statute of Frauds, 1254. 
 " OTHER," effect of word, in Statute of Frauds, 1258, 1261, 1265. 
 OVERRULED, when case is not deemed, 50, note. 
 OVERRULING DECISIONS, whether impairs contract, 569. 
 OVERT ACT, acceptance of offer must be by, 329. 
 
 in conspiracy, 521 ; indictable, not suable before, committed, 1202. 
 OWN, one's power over his, 1200. 
 OWN DEBT, 
 
 oral promise to pay, though discharging another's, 1259, 1263. 
 OWN FRAUD,' one cannot rely on his, 683, 691. 
 OWN INSANITY, one may allege his, 971. 
 OWN NAME, agent contracting in- holden, 1077. 
 OWN SIGNATURE, when binds, though others not sign, 348. 
 OWN WRONG, when allege, 489. 
 
 OWNER, effect on charter party of agent describing himself as, 1084. 
 OWNERSHIP, (See Special Ownership.) 
 
 not denying or admitting, in estoppel, 298, 299 
 
 of money borrowed on Sunday, 542. 
 
 is transmitted by voidable sale, 618. 
 
 infant's, implies what rights, 911; is competent to have, 923. 
 748 
 
INDEX OP SUBJECTS. PAR 
 
 OWNERSHIP— coniinuerf. 
 
 transmissible by insane person, 975. 
 
 special, in auctioneer, 1133. 
 
 equitable, legal title in another, 1216. 
 
 all agreements affecting, in land must be in writing, 1292. 
 
 PAPER OR PARCHMENT, specialty on, 110; simple contract, 340. 
 PARDON, contracts to procure, 502. 
 PARENT, (See Father.) 
 
 duress of, on child's contract, 727. 
 PARENT AND CHILD, (See Infant.) 
 
 father's release, 74, note; bargainings between, 230. 
 necessaries for child, 90; services and board between, 223. 
 father recover for child's services violating statute, if ignorant, 482. 
 PAROL, (See Oral.) 
 
 meaning, 27; resulting trusts established by, 194. 
 contracts by, explained, 25-27, 158, 159, 180. 
 written contract not varied by, 75, 169, 176. 
 corporation may contract by, 1016. 
 PAROL AGREEMENT, to be reduced to writing, 319. 
 PAROL AUTHORITY, (See Oral Authority.) 
 
 to fill blank, in specialty, 1168-1171 ; in simple contract, 1173, 1174. 
 PAROL CONDITION, attached to what writing, good, 357. 
 PAROL CONTRACT, (See Oral — Simple.) 
 
 explained, 26, 27; distinguished from specialty, 104. 
 PAROL EVIDENCE, (See Oral Evidence.) 
 
 how far explain written contract by, 370-377. 
 
 ambiguities removable by, 390. 
 
 to show principal as party, in contract by agent, 1084. 
 PAROL FACTS, aiding interpretation of writing by, 372. 
 PAROL WRITTEN, compared in interpretation with specialty, 426. 
 PART, PARTS, rescission cannot be in, 836. 
 
 no rescission as to, by infant, 939. 
 
 whether assign claim in, 1194. 
 
 oral, within Statute of Frauds, all or partly performed, 1235. 
 
 remedies after performance in, 1236, 1237. 
 
 memorandum in materially-differing, 1248. 
 PART AFFIRMANCE, and part rescission, not, 679. 
 PART ILLEGAL, (See Illegal.) 
 
 invalid or not as to all, 487. 
 PART PAYMENT, (See Payment.) 
 
 and promises of, in discharge of all, 50-56. 
 
 meaning of, under Statute of Frauds, 1321. 
 
 effect of, under Statute of Limitations, 1363. 
 PART PERFORMANCE, operating as consideration, 87. 
 
 after, impossible, 588; where full impossible, 605. 
 
 of oral agreement to sell land, 1237, 1305. 
 
 749 
 
PAE INDEX OP SUBJECTS. 
 
 PART RESCISSION, and part affirmance, not, 679. 
 PART IN WRITING, and part oral, 164, 168, 172. 
 PARTICULAR AGENCY, each, has its special rules, 1124. 
 PARTICULAR AGENT, 
 
 promise to serve one while employing a, oral, 1281. 
 PARTICULAR CLAUSE, restraining general, in interpretation, 409. 
 PARTICULAR TERMS, implications from interpretation of, 250. 
 PARTICULAR WORDS, of contract, as to computation of time, 1342. 
 PARTIES, (See Agent — Assignors and Assignees — Cor- 
 
 poration — Creditor — Drunkenness — Foreign Gov- 
 ernments — Government — Infant — Insane Person — 
 Married Women — Partnership —Third Person— Unin- 
 corporate Associations.) 
 Beliveen what, not permissible to impair obligation of contracts, full, 555-584. 
 Effect of fraudulent contract as between the, full, 678-691. 
 In general of the, full, 880-891. 
 In simple contracts by agent, full, 1074-1087. 
 
 who and how many, 29. 
 
 consideration must concern the, 60. 
 
 where both bound or neither, 78. 
 
 how far, bound by their deed, 274. 
 
 not less than two, both bound or neither, 318. 
 
 only part of the, signing, 348. 
 
 effect of interpretations by the, 412. 
 
 ■who are, in specialties, 426. 
 
 law and equity differ as to the, 427. 
 
 usage between, in contract, 447, 457, 458. 
 
 to suit, new laws determining the, not impair contract, 572. 
 
 mutual relations of the, in fraudulent contracts, 671 et seq. 
 
 altering contract as to, 751. 
 
 both, in default, as rescission, 816. 
 
 to suit, substitution of, on death, 859. 
 
 persons without interest may be, in suit, 873. 
 
 who, in suit for goods sold at auction, 1133. 
 
 three, in contract of suretyship, 1257. 
 PARTIES IN FAULT, 
 
 both, law aid neither, 627; less in fault, 628, 629. 
 PARTIES' NAMES, how, in specialties, 116, 117. 
 PARTITION, (See Division Line.) 
 
 by infant, 918; of fruits of illegal bargaining, 489. 
 PARTNER, holding out one as, or pretending to be, 288. 
 
 falsifying as to stock taken, must make representation good, 684. 
 
 rights of surviving, 863, 864; discharge from one, 875. 
 
 bond by one, merges simple contract debt, 876. 
 
 how execute agency, 1089. 
 
 each, is agent for the rest, 1144. 
 
 one, signing contract for all, 1149, 1151, 1152. 
 
 law of State of suit determines whether party is, 1406. 
 750 
 
INDEX OP SUBJECTS. PAY 
 
 PARTNERSHIP, (See Unincorporate Associations.) 
 
 How persons in, contract, full, 1143-1153. 
 
 law of, deflnes contract of, 440. 
 
 whether death dissolves, 862 ; giving notice, 858, note. 
 
 infant's money put into, his liability for debts of, 921. 
 
 dissolution of, terminates agency, 1056. 
 
 unincorporate association as a, 1156. 
 PARTNERSHIP AGREEMENT, infant's, voidable, 925 
 PARTNERSHIP ARTICLES, what oral explanations of, 176. 
 
 as authorizing contracts under seal, 1151, 1153. 
 PARTS OF CONTRACT, where more than one, differing, 424. 
 PARTY, (See Third Person.) 
 
 Release or discharge of one, available to another, full, 867-878. 
 
 in wrong, not complain of other's wrong, 489. 
 
 duress must be to the, 727. 
 
 alteration of written contract by, 755. 
 
 not consenting, discharged by alteration of contract, 765. 
 
 one, wrongfully rescinding contract, 837-841. 
 
 may allege own insanity, 971. 
 
 whether one can be both, and agent, or agent for opposite, 1039. 
 
 agent for opposite, to fill blanks in simple contract in writing, 1174. 
 
 signing by one, under Statute of Frauds, 1246. 
 "PARTY OF FIRST PART," interpret " party of second part," 383. 
 PARTY LESS GUILTY, when redress for, 489. 
 PARTY SPEAKING, how construe words of, 414, 421. 
 PAST CONSIDERATION, good or not, 86, 90-93. 
 PATENT, (See Void Patent.) 
 
 no consideration, if void, 70; further of valueless, 73. 
 
 whether doctrines as to restraint of trade extend to, 517, note. ' 
 PATENT AMBIGUITY, in contract, how interpretation, 375. 
 PATENT DEFECT, in thing bargained about, 664. 
 PATENTED ARTICLES, " reasonable space " for sale of , 517, note. 
 PAUPER, one relieved as a, not compellable to pay, 209. 
 PAY, buying goods meaning not to, 667. 
 PAY OVER MONEYS, of principal, agent must, 1121. 
 PAYMENT, (See Breach — Indeterminate Values — Manner 
 
 OP Payment — Part Payment, —Performance — Place.) 
 
 for gift, not compellable, 89. 
 
 voluntary, of another's debt, 211. 
 
 receiving, affirms sale, 299. 
 
 on Sunday, discharges debt, 546. 
 
 altering contract as to time or place of, 751. 
 
 threat to withhold, not duress, 723. 
 
 election between methods of, 786. 
 
 accepting something else as, 852. 
 
 in part, discharging or not, 874. 
 
 to one joint promisee, 875; to infant, 921; to agent, 1029. 
 
 in creditor's counting-room, to one only apparently authorized, 1101. 
 
 751 
 
PEK INDEX OP SUBJECTS. 
 
 PAYMEIfT — continued. 
 
 presumption from, of bills oontraoted by one as agent, 1104. 
 
 whether auctioneer may receive, 1133; broker, 1136. 
 
 rot divide debt for, 1194; presumed from what lapse of time, 1351. 
 PEACE, effect of, on contracts and suits with enemy, 1000, 1001. 
 PECUNIARY INTEREST, in another's contract, 1214. 
 PECUNIARY VALUE. (See Value.) 
 
 PEDDLING UNLICENSED, not recover wages for, 472, 
 PEN, signing by holding top of, another person writing, 345. 
 PENAL ACTION, contract to compound, void, 492. 
 PENALTY, (See Liquidated Damages.) 
 
 Provision in contract for a, full, 1455-1460. 
 
 relieving from, of recognizance, 147. 
 
 contract to do what is subject to, not valid, 471. 
 
 election to sue on, or covenant, 782. 
 
 infant's obligation with, void, 934. 
 
 interpretation prefers, to liquidated damages, 1452. 
 
 word, may be construed as liquidated damages, 1452. 
 
 stipulation for, not prevent specific performance, 1454. 
 PENCIL. (See Lead Pencil.) 
 
 PER MINAS, duress, 716. 
 PERFECTED CLAIM, may be assigned, 1182. 
 PERFORMANCE, (See Brbaoh and Pkrformance.) 
 
 What impossibilities excuse, full, 577-609. And see Impossible. 
 
 perfecting consideration by, 78, 85-87. 
 
 may constitute also acceptance of offer, 329, 330. 
 
 whether time of, may be waived orally, 771. 
 
 waiver simultaneous with, or with request for, 805. 
 
 rescission for failure of, 826, 827. 
 
 agency ends with, 1056 ; suit for refusal of, 1425. 
 
 before time of, there may be breach, 1426, 1440. 
 
 place of, 1891-1393. 
 
 preventing, breaks contract, 1431. 
 PERILS OF SEA, insurance against, valid, 582. 
 PERJURY. (See Oath.) 
 
 PERMIT, to insured to travel, breach of condition in, 586. 
 PERPETUAL SUCCESSION, corporation has capacity of, 559. 
 PERPETUITIES, law not permit, 442. 
 PERSON, corporation is an artificial, 1003, note, 1007. 
 PERSONAL, privilege of infancy is, 936. 
 
 PERSONAL CONFIDENCE, death excuses doing what rests in, 861. 
 PERSONAL DEFENCE, Statute of Frauds is, 1324. 
 PERSONAL PROPERTY, (See Goods — Real Estate.) 
 
 Bargainings in, as to Statute of Frauds, full, 1308-1325. 
 
 con-veyance of, by specialty, good without consideration, 125. 
 
 when sale of, carries warranty, 243. 
 
 has no situs, convey under law of other State, 1397. 
 PERSONAL SERVICES, for public, as to pay, 207. 
 752 
 
INDEX OF SUBJECTS. POL 
 
 PERSONAL SERVICES — coniOTuerf. 
 
 contract for, not assignable, 1182; sickness or death, 600, 861. 
 PERSONAL SKILL, implied warranty of, 246, 1416. 
 PERSONAL TRUST, not assignable, 1182. 
 PERSONALLY BOUND, 
 
 whether agent of government is, by contract, 994. 
 PERSONALTY, realty becoming, as to Statute of Frauds, 1293. 
 
 how governed by law of place of ownership, 1396-1398. 
 PETITION OF RIGHT, redress under, 989. 
 PHYSICAL FORCE. (See Duress.) 
 
 PHYSICIAN, rendering unasked services in emergency, 231. 
 
 agreement by, to permit one to personate him, 524. 
 
 how, restrict his practice by agreement, 517. 
 
 promise of, to send prescriptions to particular druggist, 518. 
 
 third person verbally promising to pay for attendance of, 1262. 
 
 held to what skill and capacity, 1416. 
 PICTURES, contracts for bawdy, &c., void, 508. 
 PLACE, (See Conflict of Laws.) 
 
 part payment at different, from contract, 54. 
 
 of payment, altering contract as to, 751. 
 
 considered in interpreting contract, 1382. 
 
 to pay money, what the, 1437. 
 PLACE OF MAKING, stating, in specialty, 114. 
 
 effect of, on contract, 1391. 
 PLACE AND TIME, 
 Effect of, in contract, full, 1336-1412; namely, time as an element in the 
 confroce, 1336-1349 ; tJie Statute of Limitations, 1350-1367; the 
 conflict oflaivs as to the place, 1368-1412. 
 PLAINTIFF, (See Both in Fault.) 
 
 Must do what, before suing for defendant's breach, full, 835, 1418-1424. 
 
 one cannot be, and defendant, 883. 
 
 who, in equity, 1193, 1194. 
 
 must be ready to perform, &c. , 1418, 1434. 
 PLAINTIFF IN WRONG, law not assist, 1203. 
 PLAN OF THIS WORK, 
 
 Full, Pref. and 1-21. 
 PLEADED, limitations statute, 95; Statute of Frauds, 1239. 
 PLEADING, PLEADINGS, formerly oral, 151. 
 
 how law-created contracts alleged in, 190. 
 
 what estoppel by, 270. 
 
 how aver agent's act in, 1032. 
 
 how aver contract within Statute of Frauds, 1239. 
 POLICE POWER, what is, pertains to State, 564. 
 POLICY. (See Insurance Policy — Sound Policy.) 
 
 POLICY OF LAW, (See Illegal — Public Policy — Sound.) 
 
 meaning, contract against, void, 474. 
 POLITICAL DEPARTMENT, 
 
 courts follow the, as to recognizing foreign government, 998. 
 48 753 
 
PKE INDEX OP SUBJECTS. 
 
 POPULAR SENSE, language of contract understood in, 404. 
 POSITION OF TRUST, corporatiou officers are in, 525. 
 POSSESSION, (See Seisin.) 
 
 of thing sold, implying warranty, 243. 
 
 of written contract, on and after delivery, 351, 352. 
 
 law creates from, duty to deliver to owner, 351, 353. 
 
 sale of thing not in, 534. 
 
 transmitted on Sunday, permitted to stand, 545. 
 
 of servant or other agent, is principal's, 1030. 
 
 of thing, not authorize sale, 1062. 
 
 of buyer after sale of goods, 1309. 
 
 what change of, under Statute of Frauds, 1319. 
 POST MORTEM EXAMINATION, not a funeral expense, 888. 
 POST OFFICE, withdrawal of offer made through, 326, 828. 
 
 putting writing in, as delivery, 354. 
 POSTPONING EFFECT, as condition of delivery of contract, 357. 
 " POUNDS," added in interpretation, 383. 
 POVERTY, not excuse non-performance, 591. 
 POWER, repugnant, void, 388. 
 
 contracts by one in another's, 741. 
 POWER OF ATTORNEY, (See Agency — Agent.) 
 
 to manage all lands, construed, 398. 
 
 general words following specific in, 409. 
 
 unsealed, to sell lands, 1046. 
 
 to convey land, coupled with interest, how after death, 1054. 
 
 silent as to duration, how terminate, 1059. 
 
 to many in special terms, how executed, 1089. 
 POWER OF SALE, in mortgage, not revocable, 1051. 
 POWERS OF AGENT, 
 
 The express and implied, full, 1057-1068. 
 PRACTICAL OBSERVATION, not theory, is test of insanity, 964. 
 PRECEDENCE, 
 
 Of the rules of interpretation, full, 419-423. 
 
 of principles, concerning the, 1468. 
 PRECEDENTS, (See Adjudged Cases — Judicial Decisions.) 
 
 to be followed, 11, 238, 1123. 
 PREFER CREDITORS, whether debtor may, 1209. 
 PREFERRED CREDITOR, government is a, 991. 
 PRELIMINARIES, 
 
 To the reading of this work, full, 1-21. 
 PRELIMINARY CONTRACT, when, not binding, 319. 
 PRESCRIPTION, meaning and effect of, 444. 
 PRESENCE, one's signature by another in, 345. 
 
 effect of, as to act in, 345, 1047, 1048, 1151. ' 
 PRESERVATION OF ESTATE, insane pay what necessary to, 968. 
 
 whether infant bound for, as for necessaries, 911. 
 PRESUMPTIONS, (See Created by Law.) 
 
 Of meanings, from express contract, full, 239-256. 
 
 754 
 
INDEX OF SUBJECTa. PEI 
 
 PRESUMPTIONS — continued. 
 
 Of the fact of actual contract, full, 257-263. 
 
 that law is known, 462. 
 
 of agent's authority, from course of dealing, 1104. 
 
 of payment, from delay, 1351. 
 PRETENCE. (See False Pretence.) 
 
 PREVENTING PERFORMANCE, defendant's, 1424. 
 
 what damage for, 1431, 1432. 
 PREVIOUS OBLIGATION, as consideration, 93. 
 PRICE, (See Consideration — Value.) 
 
 what warranty of thing sold implied from, 243, 244. 
 
 conspiracy to obtain exorbitant, 523. 
 
 one avoiding a conveyance cannot retain the, 679. 
 
 compared with " value," as to sales under Statute of Frauds, 1317. 
 
 how compute, on sale of moi-e articles than one, 1318. 
 PRINCIPAL, (See Agent — Undisclosed Principal.) 
 
 How far answerable for frauds of contracting agent, full, 1111-1115. 
 
 contracts between, and agent, 740. 
 
 whether agent have more than one, 1037-1041. 
 
 powers of, agent can have only the, 1057. 
 
 whether responsible for subagent, 1067. 
 
 undisclosed, in specialties, 1070. 
 
 rights and liabilities of, in agent's contract, 1074. 
 
 agent holden when no, or residing abroad, 1076. 
 
 whether both, and agent, holden, 1079, 1085. 
 
 parol evidence may show agent to be acting for, 1084. 
 
 fraud on agent is fraud on the, 1115. 
 
 agent not liable for contracts in name of, 1119. 
 
 whether agent failing to charge, binds self, 1119, 1120. 
 
 liabilities of agent to, 1121. 
 
 must remain bound in suretyship, 1258, 1259. 
 
 if discharged, case not within Statute of Frauds, 1258. 
 PRINCIPLES, (See Conflict of Principles — Reasons op 
 
 Law.) 
 
 as law, 14, 19; applying the, 692, 1469, 1470. 
 
 determining parties, in simple contracts by agent, 1074. 
 
 antagonizing one another, 1466-1468. 
 
 means for calling to mind the, 1470. 
 PRINTED BLANKS, how interpret contracts prepared on, 413. 
 PRINTED MATTER, in written contract, how interpret, 413. 
 PRINTER, work of, partly done, then burned, 597. 
 PRINTING, suffices as writing, 341; signature by, 343. 
 PRIOR MARRIAGE, as breach of marriage promise, 1429. 
 PRISONER OF WAR, contract for subsistence binding on, 1000. 
 PRIVATE BILL, agreement to withdraw opposition to, 501. 
 PRIVATE CORPORATION, how make toll-bridge of, free, 573. 
 PRIVATE INTERNATIONAL LAW. (See Conflict of Laws.) 
 PRIVATE PERSON, promise of indemnity to, 484. 
 
 755 
 
PRO INDEX OP SUBJECTS. 
 
 PRIVATE FERSO'S — continued. 
 
 acts of, as attorney in oonit, 1127. 
 PKIVIES, affected by estoppel, 267. 
 
 may avail of Statute of Frauds, 1239, 1324. 
 PROCEDURE, (See Judicial Pijoceduee.) 
 
 Course of, in court, operating as release, full, 867-878. 
 The, on foreign contracts, full, 1403-1411. 
 
 change of judicial, not impair contract, 571. 
 
 domestic, always followed, 1371. 
 PROCESS, sheriff serving, must return, into court, 1126. 
 PROCESS OF LAW. (See Judicial Process.) 
 
 PROCURATION. (See Agent.) 
 
 PROHIBITED THINGS. (See Forbiddku by Law — Illegal.) 
 PROJECTED ROAD, agreement for location of, u25. 
 PROMISE, (See Conditional — Contract — Fresh Promise — 
 
 Mutual Promises — New Promise — Renewal of Promise.) 
 
 executed, courts not disturb, 23 ; by one, nothing in return, 77. 
 
 and consideration, how connected, 88. 
 
 to pay for immorality, void, 509 ; as fraud, 665, 668. 
 
 to agent, is also to principal, 1031. 
 
 to assignee, after assignment, 1181. 
 
 in behalf of third person, 1218; courts not enforce every, 1464. 
 PROMISE TO MARRY, (See Marriage Promise.) 
 
 PROMISE TO PAY, any bar of law waived by, 98. 
 
 for necessaries, efiect of infant's, 916. 
 
 as interrupting limitations bar, 1359-1364. 
 PROMISE OF WAIVER, effect of, 807. 
 
 PROMISSORY NOTE, (See Bills and Notes — Commercial 
 
 Paper —Mercantile Paper — Negotiable Paper — Notes 
 and Bills.) 
 
 one's own, in part payment, 54, note. 
 
 for worthless article, 71; for items lawful and unlawful, 74, 487. 
 
 oral evidence not show, to be meant for receipt, 169. 
 
 implied warranty of, 245. 
 
 maker of, denying there is defence to, estopped, 295. 
 
 one giving, to corporation, not deny corporate existence, 304. 
 
 requiring delivery, 349 ; putting in post office as delivery, 354. 
 
 as to law-merchant, indorsement, grace, 431. 
 
 executed on Sunday, 538; delivered on week day, 544. 
 
 effect of destroying, 757; surrendering to be destroyed, 819. 
 
 no oral alteration of, 770. 
 
 infant's, for necessaries, 916; in settlement of tort, 918. 
 
 whether infant's, good, 930; infant retaining, as affirmance, 941. 
 
 form of corporation's, 1018. 
 
 possession of, not authorize receiving payment, 1061. 
 
 payable to agent, undisclosed principal sue on, 1080. 
 
 filling blank in, 1175. 
 
 how and why negotiable, 1184. 
 
 756 
 
INDEX OF SUBJECTS. PUB 
 
 PROMISSORY NOTE— con<m«ed. 
 
 assigned by one joint owner, 1194. 
 
 form of, binding executor personally, 1253. 
 
 whether "good.s, wares, and merchandise," 1315. 
 
 must be in writing, 1382 ; payable in specific articles, 1436. 
 PROOFS, what, of mistake in contract, 708. 
 PROPERTY, (See Personal — Real.) 
 
 paying another's debt to save own, 215. 
 
 not interposing claim to, while another sells it, 298. 
 
 laws regulating use of private, taking for public use, 573, 574. 
 
 money paid to retain, recover back, 632. 
 
 infants may take and hold, like adults, 923. 
 PROPOSAL ACCEPTED, when, constitutes contract, 322, et seq. 
 PROSECUTION OF CRIME, 
 
 contracts to obstruct the, iU, 492, 493. 
 PROSTITUTE, contract for supplies to, 506. 
 PROTEST, (See Supra Protest.) 
 
 not affect voluntary payment, 630. 
 PROVISO, repugnant, rejected, 387. 
 
 PROXY, sickness or death not excuse doing what by, 603, 861. 
 PUBLIC, (See Defraud Public — Fraud on Public.) 
 
 how private toll-bridge made, 573. 
 PUBLIC AGENT, liability of, on his contracts, 1119. 
 PUBLIC CORPORATIONS, (See Corporation.) 
 
 legislation create and abolish, not impair contracts of, 561. 
 PUBLIC DUTY, contracts to omit doing, void, 613, note. 
 PUBLIC ENEMY, (See Act of Public Enemy — Impossible.) 
 
 common carrier not insure against, 432. 
 
 not enforce pay for goods supplied, 472. 
 
 defined, 593; act of, excusing performance of contract, 592. 
 PUBLIC HALL, let for future day, burned before, 588. 
 PUBLIC HAPPINESS, 
 
 legislature cannot surrender power to preserve the, 564. 
 PUBLIC HEALTH, 
 
 legislature cannot relinquish power to protect the, 564. 
 PUBLIC INJURY, contract tending to, void, 524. 
 PUBLIC INTEREST, agreement to do thing subversive of, void, 470. 
 
 agency in the, how execute, 1089. 
 PUBLIC MORALS, (See Good Morals — Morals.) 
 
 legislature cannot relinquish power to protect the, 564. 
 PUBLIC OFFICER. (See Officer.) 
 
 PUBLIC POLICY, (See Illegal.) 
 
 compromise void, if contraiy to, 58. 
 
 consideration violative of, 59 ; in deed, 121. 
 
 all contracts contrary to, void, 216, 473. 
 PUBLIC SCHOOL, suspended by small-pox, wages of teacher, 604. 
 PUBLIC USE, right of taking private property for, 573. 
 PUBLISHER, of bawdy writings, no remedy, 508. 
 
 757 
 
UEA INDEX OF SUBJECTS. 
 
 PUFFING GOODS, what, permissible, 664. 
 PUNCTUATION, effect of, in interpretation, 402. 
 PURCHASE, (See Sale.) 
 
 of goods, brought about by fraud, effect of, 672. 
 
 as to purchaser of purchaser, 673. 
 
 authority of agent to, 1064. 
 PURCHASE-MONEY, recovering back, 275. 
 
 receiving, affirms sale, 286. 
 PURCHASER. (See Innocent Purchaser.) 
 
 PURCHASERS AND VENDORS. (See Sale.) 
 
 " PUT," meaning of, 377. 
 
 QUALITY, -whether sale of goods, warrants, 244. 
 
 QUANTUM OF FRAUD, which vitiates, 670. 
 
 QUANTUM MERUIT, for work part done, then sickness, 604. 
 
 QUARTER YEAR, how compute, 1338. 
 
 " QUARTERLY," may be interpreted " annually," 383. 
 
 QUASI CONTRACT, estoppel in pais is, 283. 
 
 QUEEN OF ENGLAND, whether, may be sued, 989. 
 
 QUITCLAIM DEED, does not estop, effect of, 277. 
 
 RAILROAD. (See Location— Street Cars.) 
 
 RAILROAD ACCIDENT, medical assistance following, 1066. 
 RAILROAD CORPORATIONS, negotiability of bonds of, 11«7. 
 RAILROAD OFFICERS, violations of trust by, 525. 
 RAILROAD TICKET, how interpret, 381. 
 RAPE, not, by boy under fourteen, 946. 
 
 RATIFICATION, (See Affirmance — Confirmation.) 
 
 Of the contract, full, 844-849. 
 Of unauthorized acts by real or assumed agent, full, 1106-1110. 
 
 of Sunday contract, 542. 
 
 of void contract, not, 614; of voidable, 620. 
 
 how of fraudulent contract, 683. 
 
 of insane person's, 974; drunkard's, 985, 986. 
 
 by municipal corporation, of agent's contract, 995. 
 
 of agent's unauthorized covenants, 1097. 
 
 of one partner's unauthorized deed in name of firm, 1151, note. 
 
 of contract in names of members of association, 1164. 
 READING, whether, at signing, 346. 
 READING LAW, true method of, 17-21. 
 
 how to acquire command of principles, 1470. 
 REAL ESTATE, (See Deed of Land — Land — Lease — License.) 
 What bargains relating to, require writing, full, 1286-1307. 
 
 improving, where no title, estoppel, 300. 
 
 seller not disclosing defect in title to, 664. 
 
 corporation's power to take and convey, 1008. 
 
 title to, passes only by deed, 1327. 
 758 
 
INDEX OF SUBJECTS. KEG 
 
 REALTY, corporation's unsealed agreement to convey, 1016. 
 
 governed by law of place, 1394-1396. 
 KEASON, (See Legal -Reason.) 
 
 iu what sense law, 12-16; law a system of, 1126. 
 REASON OF RULE, governs its interpretation, 75. 
 REASONABLE, custom to be, 458. 
 
 REASONABLE AND JUST, contract interpreted to be, 400. 
 "REASONABLE SPACE," 
 
 meaning, as to contracts in restraint of trade, 517. 
 _ REASONABLE TIME, meaning, 327. 
 promise to forbear for a, 63. 
 for acceptance, implied in offer, 327. 
 rescission must be within, 680. 
 not necessarily extends beyond year, 1282. 
 REASONS, in one case, not binding in subsequent, 12. 
 
 diverse, for one conclusion of law, 279. 
 REASONS OF LAW, judges mistaking, text-books as to, 1063, note. 
 REBELLION, not recover pay for things in aid of, 472. 
 RECEDE, not, after election, 844. 
 RECEDE FROM UNLAWFUL, when parties, 489. 
 RECEIPT, written, explainable oi-ally, 176. 
 
 construing, as bill of sale, 396. 
 " RECEIVE," meaning of, under Statute of Frauds, 1319. 
 RECEIVE PROPERTY, infant's authority to, 923. 
 RECITALS, in deed to infant, bind him, 202, 203. 
 in deed, disputable or not, 274. 
 to estop, must be specific, 276 and note, 
 in contract, estoppel by, 285. 
 in contract, limiting general words, 407. 
 RECKLESSNESS, in affirming, viewed as fraud, 661. 
 RECOGNITION. (See Subsequent Recognition.) 
 
 RECOGNIZANCE, 
 
 The contract hy,full, 144-150. 
 
 included, or not, under term " contract," 192. 
 whether seal essential to release of, 854. 
 whether, binds infant, his obligation to surety under, 907. 
 RECOMPENSE, making, for illicit commerce, 509, 510. 
 RECORD, (See Contract — Judicial Record.) 
 
 depositing deed for, as delivery to party, 355. 
 whether assignment of, may be oral, 1330. 
 RECORD DEBTS, how release of, 854. 
 RECORDING DEED, (See Registry Laws.) 
 
 acknowledgment of deed to authorize, 363. 
 neglected, and deed lost, 394. 
 effect of not, on cancellation, 821. 
 RECOUPMENT, in action on imperfectly performed contract, 1421. 
 RECOVER BACK, (See Give Back.) 
 
 after consideration failed, 71, 72. 
 
 759 
 
KEL INDEX OP SUBJECTS. 
 
 RECOVER BACK — continued. 
 
 money wrongfully parted with, 226. 
 how of money paid under judicial process, 272. 
 purchase money, 275; things transferred on Sunday, 545. 
 whether, payment on void contract, 615. 
 not, thing parted with on executing illegal contract, 627. 
 not, payment voluntarily made, 630. 
 made under mistake of law, 631; of fact, 632. 
 why, and other illustrations, 633, 634. 
 payment under avoided oral contract, 634. 
 on rescission, 682, 818, 834; paid under duress of goods, 725. 
 as to party innocent, or less in fault, 834, 835. 
 suit to, as notice of rescission, 832. 
 goods, from infant receiving, 902. 
 whether infant can, money he has paid, 919, 921. 
 money paid to insane person, when, 970. 
 consideration from one setting up Statute of Frauds, 1236. 
 after insuflScient performance, 1445. 
 REDELIVERY, when, after filling blank, 1170. 
 REDRESS, not to partaker in same wrong, 489. 
 REFORMING CONTRACT IN EQUITY, 
 For mistake, full, 707-713. 
 
 for mistake as to meaning, 705. 
 for fraud, 687 ; orally contradict contract for, 372. 
 whether alteration in pais a substitute for, 752. 
 REFUND MONEY. (See Recover Back.) 
 
 REFUSAL, as breach of contract, 1425, 1428; rescission for, 827. 
 REFUSAL TO ACCEPT, what damage for, 1432. 
 REGISTER OP DEEDS, depositing deed with, as delivery, 355. 
 REGISTRY LAWS, (See Record — Recokding.) 
 
 effect of, on oral defeasance, 173. 
 not extend to conveyance by estoppel, 309. 
 contracts in evasion of, 477. 
 REGULATION OF BUSINESS, 
 
 Contracts contrary to statutes in, full, 547, 548. 
 RELATIONS, mutual, of subjects of contract, 689, 640. 
 RELATIONS OF CONFIDENCE. (See Confidbntiai, Relation.) 
 RELATIONS OF PARTIES, showing, as help to interpretation, 372. 
 RELATIONSHIP, as to pay for services, 219, 228. 
 RELEASE, (See Specialty.) 
 
 From the contract, full, 850-879 ; namely, by oral or uritten words, 850- 
 857 ; by death, 858-866 ; otherwise by operation of law, 867-878. 
 under seal, with and without consideration, &c,, 51, 99, 100. 
 to agent, of agent's debt, 1029. 
 by assignor, when not effectual, 1180. 
 to estate, executor's promise on, 1254. 
 
 to one, consideration of promised payment by another, 1261. 
 of remedy, a consideration, 1266. 
 760 
 
INDEX OP SUBJECTS. BBS 
 
 RELEASE — continued. 
 
 operation of, compaved with limitations statute, 1360. 
 RELEVANT AND MATERIAL, 
 
 misrepresentations, to vitiate, 652, 670. 
 RELIEF IN EQUITY. (See Equitable Relief.) 
 
 RELIGIOUS SOCIETY, 
 
 member of, must pay clergyman he hires, 1160. 
 RELINQUISHMENT, essential to delivery of writing, 350, 351. 
 REMEDIES, (See Concurrent Remedies.) 
 
 For fraudulent contract, full, 678-691. 
 
 statute constitutionally modify, 571, 572. 
 
 on covenant and simple promise, not coexist, 129. 
 
 release of, consideration for promise, 1266. 
 REMOVE. (See Move Away.) 
 
 REMOVE SUIT, to United States Court, promise not to, void, 496. 
 RENEWAL OF PROMISE, 
 
 Effect of, on Statute of Limitations, full, 1359-1364. 
 RENT, of house destroyed, 598. 
 
 waiving forfeiture for not paying, 794. 
 
 of shop, infant not bound for, 911. 
 
 accepted in infancy, not recoverable again at mature age, 921. 
 REPAIRS, whether infant bound for, 911. 
 REPARATION, for moral wrongs, 509, 510. 
 
 REPEAL OF STATUTE, as affecting contracts contrary to, 479. 
 REPRESENTATIONS, (See Misrepresentation.) 
 
 defined, as element in fraud, 663. 
 
 fraudulent, equity compel party to make good, 684. 
 REPUDIATE CONTRACT, with government, promise to, 503. 
 
 neglect to, as affirming, 1226. 
 REPUDIATION, whether infant's, is fraud, 921. 
 REPUGNANCY, rejecting, to free contract, 386. 
 REPUGNANT CLAUSES, precedence of, 389. 
 REPUTATION, selling one's, to defraud public, 524. 
 REQUEST, element in consideration, 91-93. 
 
 implied, 92; before suit or not, 91, 92, 211-217, 1437. 
 RESCIND SALE, election to, or affirm, 782. 
 RESCISSION, (See Wrongful Rescission.) 
 
 Of fraudulent contract, full, 679-682. 
 In equity, for mistake, full, 707-713. 
 
 Otherwise of the contract, full, 809-842; namely, ly mutual consent, 812- 
 822 ; hy one party as of right, 823-836 ; by one party wrongfully, 
 837-841. 
 By infant, of voidable contract, full, 936-945. 
 
 of specialty, by parol, 135. 
 
 judgment conclusive as to, 273. 
 
 grantable in equity for what duress, 726. 
 
 in equity, of inequitable contracts, 741-743. 
 
 when may be, of waiver, 807. 
 
 761 
 
EXJN INDEX OP SUBJECTS. 
 
 RESCISSION — continued. 
 
 of contract, for insanity, 971, 974. 
 
 after sale, auctioneer has no right of, 1134. 
 
 right of, where third person has interest, 1223. 
 
 of a ratification, 1225. 
 
 oral, of written contract within Statute of Frauds, 1241. 
 
 based on clause interpreted into contract, 1417. 
 
 ■wrongful, entitles other party to sue, 1428. 
 RESERVATION OF POWER, 
 
 to repeal or modify incorporating act, 560. 
 RESERVATIONS, effect of release with, 873. 
 RESOLUTION, corporation contract by, 1017. 
 RESTORING CONTRACT, after alteration, 756. 
 RESTRAINT, not all insanity requires, 961. 
 RESTRAINT OF TRADE, 
 Contracts in, full, 513-520. 
 
 consideration in the contract, 126. 
 RESULTING TRUSTS, doctrine of, 1216. 
 
 what are, Statute of Frauds as to, 194. 
 RETAIL STORE, liability of owner for acts in, 1102. 
 RETAINING GOODS, by infant, when a ratification, 941. 
 RETIRING PARTNER, must give what notice, 1148. 
 RETROSPECTIVE, ratification is, in its effects, 849. 
 RETURN, what, on rescission, 679, 681, 682. 
 REVENUE LAWS, violations of, not recover, 472. 
 
 how foreign, regarded, 1386. 
 REVOKING LICENSE, when prevented by estoppel, 286. 
 REWARD, one offering, another doing thing, 381. 
 
 for aiding oflficer who is forbidden to claim, 487. 
 RIGHT, RIGHTS, (See Vested.) 
 
 conferred by law, party may waive, 98, 793, 806, 1360. 
 
 acquired by contract, distinguished, 99. 
 
 plaintiff to sustain a suit must be in the, 1418. 
 RIGHT TO SUE, Statute of Limitations running from the, 1354, 1355. 
 RIGHT OF WAY, pertains to realty, 1298. 
 RIGHTFUL RESCISSION. (See Rescission.) 
 
 RIGHTS AND LIABILITIES, 
 The, of agents, full, 1116-1121. 
 RISK, wager implies, on both sides, 530. 
 RIVAL INTERESTS, created between corporations, 575. 
 ROBBERY, not deemed act of public enemy, 593. 
 RULES OF INTERPRETATION, (See Interpretation.) 
 
 For contracts, full, ^"d-ilS. 
 
 no one rule is supreme over all, 408. 
 RULES OF LAW, agreement cannot change the, 1179. 
 RUNNING WITH LAND, 
 Covenants, full, 1190-1192. 
 
 interpreted by law of place where land is, 1395. 
 762 
 
INDEX OF SUBJECTS. SAL 
 
 SABBATH. (See Lord's Day.) 
 
 SAFE, accepting, difEering from bargained for, 795. 
 
 no power of warranty in agent to sell, 1063. 
 SALARY, of officer, not a contract, 208. 
 
 what bargaining between stockholders for increase of, ill, 525. 
 
 earning, must precede suit for, 1420. 
 SALE, SALES, (See Deed of Land — Fraud — Judicial Sale — 
 Purchase — Rescind — Sell — Statute op Frauds — Stop- 
 page IN Transitu.) 
 Of personal property, as to Statute of Frauds, full, 1308-1325. 
 Of real estate, and bargainings relating thereto, as requiring writing, full, 
 1287, 1286-1307, 1327-1331. 
 
 consideration, 77, 119-125; delivery, 83, 1309. 
 
 implying warranty, 243, 244. 
 
 of one's property by third person, estoppel, 298. 
 
 a withdrawal of offer, 326. 
 
 whether, of what seller has not, 442. 
 
 bargains for, of bawdry, void, 508. 
 
 for future delivery, 534. 
 
 for unlawful purpose, 535. 
 
 what, good on Lord's day, 538 ; not have back, 545. 
 
 for use in unlicensed business, 547. 
 
 of non-existing thing, 581. 
 
 effect of void, 614; rights following voidable, 618. 
 
 by infant or insane person, 618. 
 
 concealment or disclosure at, 660, 664. 
 
 of things obtained by fraud, 672-677. 
 
 affirming fraudulent, 683. 
 
 misdescribing goods at, 701. 
 
 with warranty, election in, 782. 
 
 one cannot both affirm and repudiate, 784. 
 
 as waiver of lien, 793. 
 
 infant's, voidable, 925 ; manner of avoiding, 938. 
 
 by insane person, transmits ownership, 975. 
 
 corporation has implied power of, 1008. 
 
 by principal, takes away agency concerning thing sold, 1056. 
 
 on credit, to agent with the money to pay, 1064, 1098. 
 
 interpretation of power of, 1094. 
 
 by authorized agent, with unauthorized covenants, 1097. 
 
 by auctioneer, 1131, 1133; broker, 1135, 1136; factor, 1138, 1139. 
 
 auctioneer not make private, 1134. 
 
 honest buyer bow protected at, 1210. 
 
 whether memorandum of, must state consideration, 1247. 
 
 to one, another to pay, as to Statute of Frauds, 1260. 
 
 buyer to discharge seller's debt to another, 1264. 
 
 right to take goods from land after, of them, 1300. 
 
 of goods, common-law formalities at, 1309. 
 
 damage for refusing to accept, 1432. 
 
 763 
 
SED INDEX OP SUBJECTS. 
 
 SAMPLE, warranty in sales by, 244. 
 
 SANE PARTY, whether bound by contract with insane, 973, 975. 
 
 SANITY AND INSANITY, mingling of, 964. 
 
 SARDINES, agreement to supply domestic, labelled as imported, 524. 
 
 SATISFACTION, less sum not, of greater, 50, note. 
 
 SATURDAY, when money falling due on Sunday payable on, 1438. 
 
 SAVING PROPERTY, in emergency, pay for, 236. 
 
 SCHEDULES, considered in interpreting contract, 382. 
 
 SCHOOL, sale of good will of, 520. 
 
 small-pox, suspending teacher's wages, 604. 
 SCHOOL TEACHER, without certificate, not recover pay, 472. 
 SCIENCE, how read books of, 17. 
 SCIENTIFIC, what is not, in law writings, 640. 
 SCIRE FACIAS, recognizance enforced by, 149. 
 SCRIP CERTIFICATES, whether and why negotiable, 1185. 
 SCRIVENER, erasing and substituting words, 763. 
 SCROLL, as seal. 111. 
 
 where seal in one State, not in another, how sue, 1404. 
 SEA, how warranty extends to things at, 244. 
 SEAL, (See Common Seal — Specialty.) 
 
 Contracts under, full, 103-139. 
 How of the, in partnership contracts, full, 1149-1152. 
 Filling blanks in contracts under, full, 1167-1172. 
 
 what is. 111 ; implies consideration, 42, 83, 119 ; verity, 274. 
 
 statutes rendering, unnecessary, 127. 
 
 interpretation may reject, 385, 1152; deed lacking, 394. 
 
 defacing or adding, 751. 
 
 mutually altering contract having superfluous, 773. 
 
 same where sealing essential, 774. 
 
 destroying, at rescission, 815. 
 
 whether necessary to a release, 874. 
 
 effect of unnecessary, 1046; when surplusage, 1096. 
 
 void as unauthorized, 1171. 
 
 no conveyance of land without, but agreement to convey, 1289. 
 
 not required in conveyance of personal property, 1308. 
 SEALED INSTRUMENT. (See Specialty.) 
 
 SEAMLESS, law is, 490, 640. 
 
 SECOND AGENT, whether employing, ends power of first, 1059. 
 SECOND DELIVERY, 
 
 Of escrow, full, 358-361. 
 SECRECY, as to immorality, 512. 
 SECRET PURPOSE, not invalidate contract, 317. 
 
 not constitute waiver, 803. 
 SECURITIES, agent must render, to principal, 1121. 
 SECURITY, attaching officer may take, for debt, 486. 
 
 given to prevent prosecution, 493. 
 
 election in cases of, 780. 
 SEDUCTION, as ground for damages, 41. 
 764 
 
INDEX OP SUBJECTS. SET 
 
 SEDUCTION — continued. 
 
 promise of reparation for wife's, good, 510. 
 SEISIN, (See Possession.) 
 
 what voidable deed transmits, 618. 
 
 infant may appoint agent to receive, 930. 
 
 transmissible by insane person, 975. 
 
 authority to receive, may be oral, 1328. 
 SELF, (See Disqualifying Self.) 
 
 one not contract with, 880, 881; or sue, 882, 883. 
 
 corporation not deal with, 1022; agent not, 1039, 10-10. 
 
 one not create agency in, 1057. 
 
 principal have profit of agent's dealing with, 1121. 
 SELL, (See Sale.) 
 
 when authority to, presumed, 1062. 
 
 what express power to, implies, 1062, 1063. 
 SEPARATE PROMISES, as to breach of contract, 1420. 
 SEPARATE WRITINGS, as one contract, 165. 
 SEPARATING, legal and illegal items of account, 487. 
 SEPARATION FROM BULK, 
 
 essential in sale of goods, 1809. 
 SERVANT, (See Agent.) 
 
 infant as, of parent, 899. 
 
 possession of, is master's, 1030. 
 
 discharge of, for breach of implied stipulation, 1417. 
 SERVICES, (See Death — Employment — Extra — Per- 
 
 sonal — Wages.) 
 
 law's promise to pay for, 219 ; not when voluntary, 220. 
 
 sale of, carries what warranty, 246. 
 
 custom regulates payment for, 456. 
 
 innocent father may recover for illegal, by son, 482. 
 
 in part illegal, whether pay, 487. 
 
 compensating officers for, 500. 
 
 in training horse for unlawful race, 535. 
 
 act of God as excusing performance of, or not, 596, 599-601 , 603, 
 604. 
 
 turning servant off before, completed, 838. 
 
 infant not bound for, employed in his business, 911. 
 
 infant's, for fii-m of which he is a member, 921. 
 
 infant's contract for, void if unequal, 931. 
 
 one employing, should pay, 1160. 
 
 of self and family, as to creditors, 1208. 
 
 one's verbal promise to pay for, rendered another, 1262. 
 
 what bargains for, as within a year or not, oral, 1280. 
 
 not "goods, wares, and merchandise," 1316. 
 
 what the law implies in contract for, 1416. 
 
 rendered on unfulfilled agreement, 1442. 
 SET-OFF, right of, depends on law of place of suit, 1408. 
 
 in action on imperfectly performed contract, 1421. 
 
 766 
 
SIM INDEX OF SUBJECTS, 
 
 " SETTLED EXPOSITION," 
 
 decisions changing, whether impair contract, 569. 
 SETTLEMENT, through coniproraise, 57, 58. 
 
 of accounts partly unlawful, 74. 
 SEVEN, age of, in criminal and marriage law, 946. 
 SEVERAL, contractors, death ot part of, 866. 
 SEVERAL AGENCY, how executed, 1088, 1089. 
 SEX, wager on the, of person, 531. 
 
 SHARES, purchasing, on condition of being made cashier, 524. 
 SHERIFF, return process, certificate thereof, 1126. 
 SHERIFF'S KEEPER, not dispute title, 307. 
 
 not delegate powers, 1087. 
 SHIFTING, of the right to elect, 785, 786. 
 SHIFTLESSNESS, is not insanity, 963. 
 SHIP, purchased in evasion of registry acts, 477. 
 SHORT TIME, promise to forbear for a, 68. 
 SICKNESS, of pupil, as affecting promise to pay for teaching, 599. 
 
 what contracts discharged by, 599, 600, 603, 604. 
 SIGHT DRAFTS, parol agreement as to, 172. 
 SIGNATURE, (See Names of Parties.) 
 
 when acknowledging, estops to deny, 295. 
 
 written with ink, or lead-pencil, or printed, 341. 
 
 what the place of, manner, 343-345. 
 
 what knowledge banks holden to have of, 700. 
 
 act of incorporation requiring, to bonds, effect, 1014. 
 
 how, made by agent, 1071, 1072. 
 SIGNED, (See Delivery.) 
 
 how memorandum under Statute of Frauds must be, 1244. 
 
 whether deed of land must be, 1327. 
 SIGNING, 
 
 The, of written contract, full, 842-348. 
 
 whether required in specialty, and how, 111, 112. 
 
 with delivery, mutual assent, 315. 
 
 through mistake of contents, 697. 
 SIGNING AND DELIVERY, 
 
 Fraud which vitiaies the, full, 644-649. 
 
 alterations before, immaterial, 763. 
 SILENCE, estoppel by, 284, 288, 290. 
 
 in bargaining, and as element in fraud, 650, 664. 
 
 whether waiver by, 803 ; infant's ratification, 942. 
 
 when, ratifies unauthorized contract, 1109. 
 SILENT PARTNER, suing and being sued, 1146, 1147. 
 SIMPLE CONTRACT, (See Oral — Parol — Written.) 
 
 In writing, full, 162-180. 
 
 Forms and manner of, made by agent, full, 1072-1090. 
 Filling blanks in, full, 1173-1175. 
 
 meaning, 104, 159; must have consideration, 40. 
 
 merges in specialty, or judgment, 129, 876, 877. 
 766 
 
INDEX OF SUBJECTS. SPB 
 
 SIMPLE CONTRACT — conitnuerf. 
 
 specialty becomes, by unsealed modification, 133, 136. 
 
 ■when implications from express words are deemed, 253. 
 
 conditional delivery of, 357. 
 
 oral alteration of written, 766, 767. 
 
 how mutually alter written, 764-771. 
 
 infant's voidable, 925. 
 
 oral authorization to execute, in writing, 1049. 
 
 partner can bind firm by, 1145. 
 
 specialty with blank filled by parol authority is, 1171. 
 
 when, in one country enforced as specialty in another, 1404. 
 SIMULTANEOUS, mutual promises must be, 79. 
 
 oral and written may be, 167. 
 SIMULTANEOUS ACTS, breach of contract requiring, 1433. 
 SIMULTANEOUS PROMISES, 
 
 As a consideration, full. 76-79. 
 SISTER AND BROTHER, services and board between, 228. 
 SITUATION, taking advantage of, as impairing contract, 738. 
 SKILL, warranty of, implied, 246. 
 
 what degree of, employee's contract implies, 1416. 
 SLAVERY, (See Emancipation.) 
 
 abolition of, as to former promises, 73. 
 SMALL THINGS, illustration of law not regarding, 348, note. 
 SMUGGLE, contracts to, into another country, 1380. 
 SMUGGLED GOODS, 
 
 recovering money paid to prevent forfeiture of, 215. 
 SOBER INTERVAL, drunkard's contract made in a, 982. 
 SOCIAL DUTY, pay for acts done in discharging, 238. 
 SOIL, misrepresenting productiveness of, as fraud, 651. 
 SOLICITOR, (See Lawyer.) 
 
 limit of space, on sale of business, 517. 
 
 promise to serve but the one corporation, 518. 
 SOLVENCY, how warranty as to, of maker of note, 245. 
 
 false assertion of, fraud, 666. 
 SOUND PRICE. (See Price.) 
 
 SOUND POLICY, (See Illegal — Policy of Law.) 
 
 consideration violative of, inadequate, 467. 
 
 agreement contrary to, invalid, 473. 
 
 wager against, not enforceable, 531. 
 SOVEREIGN, (See State — United States.) 
 
 estoppel ineffectual against, 268, 310. 
 
 no suit against the, may sue subject, 989. 
 SOVEREIGNTY, rights of, as to contract, 988. 
 SPEAKING. (See Party Speaking.) 
 
 SPECIAL AGENT, 
 
 Doctrine of, full, 1092-1098. 
 SPECIAL OWNERSHIP, 
 
 whether auctioneer has, 1133; broker, 1136; factor, 1138. 
 
 76T 
 
gpj; INDEX OP SUBJECTS. 
 
 SPECIALITY, (See Deed — Seal.) 
 
 The contract by, full, 103-139; namely, defined, and general doctrm 
 104-118; the consideration, 119-127; high nature and consequenct 
 128-138. 
 Estoppel by, full, 274-279. 
 How, mutually altered, full, 772-775. 
 Made through agent, full, 1070, 1071. 
 Partnership contracts by, full, 1149-1152. 
 Blanks in, and filling them, full, 1167-1172. 
 
 gift by, 83. 
 
 release by, not require consideration, 99, 100. 
 
 binding without consideration, 119. 
 
 parol postponing of taking effect of, 170, note, 357. 
 
 law's promise not a, 203. 
 
 when implication in contract takes degree of, 258. 
 
 similitude of estoppel in pais to, 283. 
 
 no parol condition incorporated in, 357. 
 
 what conditional delivery of, 357. And see Escrow. 
 
 how far differs in interpretation from parol written, 426. 
 
 in consideration of immorality, void, 509. 
 
 executed, not avoided by alteration, 758. 
 
 oral waiver of, 795. 
 
 may be rescinded orally, 814; how, 815. 
 
 parol discharge of, 852. 
 
 substituted for simple contract, absorbs it by merger, 876. 
 
 infant's, for necessaries, 916, note. 
 
 infant's, voidable, 925; may be orally ratified, 944. . 
 
 whether government agent liable on his, 994. 
 
 authority of agent to execute, must be under seal, 1045, 1046, 109( 
 
 insufficiently sealed, is simple contract, 1096. 
 
 how third person sue on, 1220. 
 
 whether orally assign, 1330. 
 
 payment of, presumed from delay, 1351. 
 
 how sue on foreign, when only simple contract here, 1404. 
 SPECIFIC ARTICLES, when contract to pay in, is broken, 1436. 
 SPECIFIC ENUMERATION", how interpret clause following, 409. 
 SPECIFIC EXPRESSIONS, control general, in interpretation, 406. 
 SPECIFIC PERFORMANCE, (See Breach — Perfobmance - 
 
 Time.) 
 
 on bill for, the consideration, 45, 120. 
 
 of promise to pay by will, 224. 
 
 remedy in equity, 434, 837,. 
 
 enforced after death of party, 1054. 
 
 when, of oral bargaining for land, 1237. 
 
 on assigned bond for deed, 1331. 
 
 time, on bill for, 1347. 
 
 stipulation for liquidated damages not prevent, 1454. 
 SPECIFICATIONS, the, considered in interpreting contract, 382. 
 
 768 
 
INDEX OP SUBJECTS. STA 
 
 SPECULATION, oral agreements as to, in realty, 1303. 
 
 " SPITTING OF BLOOD," meaning of, 377. 
 
 STALE CLAIMS, courts not enforce, 1351. 
 
 STALLION, dying before contract for service completed, 588. 
 
 STAMP, as signature, 345. 
 
 STAMPED. (See Unstamped.) 
 
 STANDING OFFER, as to acceptance of, 78, 79. 
 
 STANDING TREES. (See Trees.) 
 
 STARE DECISIS, how, binding, 11, 1123, 1124. 
 
 STATE, (See Sovereign — United States.) 
 
 whether bound by estoppel, 268, 310. 
 
 between, and subject, interpretation favors, 415. 
 
 provision as to obligation of contracts, binds the, 551. 
 
 obligation of contracts protected between States, 555. 
 
 may make contracts, legislation not impair, 563. 
 
 may exercise police power, 564. 
 
 whether, may be sued, may sue, 989. 
 
 whether Statute of Limitations runs against the, 1365. 
 STATE COURTS, decisions of, in other States, 13. 
 STATU QUO, putting parties in, 489. 
 
 meaning, no rescission without, 679, 818, 833, 842, 970. 
 
 in fraud, preliminary to defence at law, 689. 
 
 adjustment of, in equity, 830. 
 
 on rescinding infant's contract, 921 ; insane person's, 970. 
 STATUTE, STATUTES, (See Statutory Duty.) 
 
 must be expounded, 10. 
 
 one may waive right under, 94. 
 
 as to contracts, not extend to created ones, 196. 
 
 Sunday contracts, violative of, 536, 537. 
 
 and contracts, similarly interpreted, 366, 367. 
 
 interpreted to carry out legislative intent, 380. 
 
 in derogation of law, strictly construed, 410. 
 
 how interpret, as to odious and favored, 417. 
 
 whether, vary effect of contract, 441. 
 
 agreement to violate, void, 471. 
 
 effect of repeal of, on contract violating, 479. 
 
 good under, when made, illegal by subsequent, 480. 
 
 agreement contravening, 507. 
 
 impairing obligation of contracts, void, 567-569. 
 
 changing remedy, not, 571. 
 
 infant's contracts under, 922. 
 
 modifying unwritten law of married women's property, 951, 952. 
 
 government contracting unauthorized by, 988. 
 
 imply what necessary to their efScacy, 1060. 
 
 people make, only through legislature, 1142. 
 
 new, how combines with old law, 1142. 
 
 computation of time in, and contract, compared, 1337. 
 
 modified by principles outside itself, 1237. 
 
 49 769 
 
 2, 
 
STA INDEX OP SUBJECTS. 
 
 STATUTE OF FRAUDS, (See Writing — Written Contract.; 
 Expositions of the, full, 1228-1325; namely, as to the statute, 1229-1233 
 what is common to the several clauses, 1234-1249 ; promises by ex 
 ecutors and administrators, 1250-1255 ; the promise to answer fm 
 another's debt, default, or miscarriage, 1256-1266; the agreemen 
 on consideration of marriage, 1267-1271; agreements not to he per 
 formed within a year, 1272-1284; bargainings relating to real estate 
 1286-1307; bargainings in personal property, 1308-1325. 
 not extend to law-created contracts, 193. 
 under, words interpreted into a written contract, how of, 254. 
 no impediment to oral estoppel, 309. 
 requires actual signing of writing, 842, 343. 
 effect of, on sale of trees, 396, 1294. 
 meaning of " contracts " in, 556. 
 
 oral contract required in writing by, things paid or done under, 634. 
 when execution on one side makes the oral binding on other, 634. 
 efiect of executing promise void under, 634. 
 oral alteration of written contract under, 771. 
 contract in writing under, orally rescinded, 814; how, 815. 
 oral release of writing under, 174, 852. 
 
 who agent to sign memorandum required by, 1038, 1039, 1049. 
 effect of, as to conveyances of land, 1327. 
 STATUTE OP LIMITATIONS, (See Delay.) 
 
 Expositions of tlie, full, 1350-1367. 
 Effect of, in another State, full, 1409-1411. 
 
 waive right under, fresh promise or acknowledgment, presumed 
 
 payment, 95, 1359-1364. 
 does not impair obligation of contract, 572. 
 release by, as to joint and several, 871. 
 pleadable or not, according to law of forum, 1409. 
 STATUTE MERCHANT, how, 143. 
 STATUTE STAPLE, concerning, 143. 
 STATUTE OP USES, forms of conveyance under, 124, 127. 
 STATUTES, ENGLISH, 21 Hen. 3, leap year, -1338. 
 50Edw. 3, c. 6,— 1205. 
 
 2 Rich. 2, Stat. 2, o. 3, — 1205. 
 
 3 Hen. 7, c. 4,-1205. 
 32 Hen. 8, c. 2,-1352. 
 13Eliz. c. 5,-1205. 
 27Eliz. c. 4,-1205. 
 
 21 James 1, c. 16,-1352. 
 29 Car. 2, c. 3, — 1229, 1232, 1238. 
 29 Car. 2, c. 3, § 4, — 1232. 
 29Car. 2, c. 3, §17, — 1311. 
 
 8 & 9 Will. 3, 0. 11, § 8, — 1456, note, 1458. 
 
 4 Anne, c. 16, § 13, — 1458. 
 
 9 Geo. 4, c. 14, § 7, — 1311, note, 1313, 1316, note. 
 13 & 14 Vict. 0. 21, § 4, — 1339, note. 
 
 770 
 
INDEX OF SUBJECTS. SUC 
 
 STATUTES REGULATING BUSINESS, 
 
 ConiracU) violating, full, 547, 548. 
 STATUTORY BOND, form of, 393, 443. 
 
 void, when good at common law, 393. 
 STATUTORY DUTY, law creates promise to perform, 204-206, 238. 
 
 no pay for doingj 207, 208. 
 STIFLE PROSECUTION, contract to, void, 493. 
 "STIPULATED DAMAGES," (See Liquidated Damages.) 
 
 meaning of, 1452. 
 STIPULATION, (See Alteknative Provisions — Express.) 
 
 for thing, not satisfied by what is different, 381. 
 STIPULATION AGAINST IMPOSSIBLE, 
 What is, or equivalent to, full, 584-590. 
 Further of, and how in absence of, full, 591-608. 
 STOCK, STOCKS, (See Subscription — Transfer.) 
 
 selling, on "margins," 534. 
 
 transfer of, to escape liability, 650, note. 
 
 fraud as to amount of, subscribed, 684. 
 
 whether "goods, wares, and merchandise," 1315. 
 STOCKHOLDERS, contracting with corporation, 1022. 
 STOLEN GOODS, innocent purchaser of, 676. 
 STOLEN MONEY, mail-carrier's liability for, 63. 
 STOPPAGE IN TRANSITU, doctrine of, waiver of right of, 802. 
 STRANGER, (See Third Person.) 
 
 accord and satisfaction from a, 211 and note. 
 
 alteration of contract by, 753. 
 
 whether, set up Statute of Frauds, 1239, 1324. 
 STREET, , (See Right of Way.) 
 
 warranty implied,from bounding land on, 249. 
 
 condition against building within specified distance from, 398. 
 STREET CARS, driving, on Sunday, 540. 
 STRICT CONSTRUCTION, of things odious, 417. 
 " STUBBLE," meaning of, 377. 
 SUBAGENT, when agent employ, or not, 1067. 
 SUBJECT, the, not sue sovereign, 989. 
 SUBJECT OF CONTRACT, must be lawful, 31. 
 
 separate papers on the same, one contract, 165. 
 
 may be identified by parol evidence, 376. 
 
 how, influences interpretation, 397, 404, 430-433. 
 
 effect of, on computation of time, 1342. 
 SUBSCRIPTION TO STOCK, what fraud vitiates, 665. 
 SUBSEQUENT EVENT, not failure of consideration, 73. 
 SUBSEQUENT RECOGNITION, in writing, of oral bargain, 1243. 
 SUBSTANCE OF CONTRACT, 
 
 Fraud which vitiates the, full, 650-670. 
 SUBSTANTIAL PERFORMANCE, where exact is impossible, 605. 
 SUBSTITUTION, of contracts, 55, 68, 174; parol for specialty, 137. 
 SUCCESSION. (See Perpetual Succession.) 
 
 771 
 
SWE INDEX OF SUBJECTS. 
 
 SUCCESSIVE STEPS, 
 
 one rescinding foi- other's breach as to, 827, 828. 
 
 how contract requiring, broken, 1434. 
 " SUCCESSOiiS," in contract, reformed to "heirs," 709. 
 SUE, (See Right to Sub.) 
 
 effect of various covenants not to, 857, 872, 875. 
 
 whether wife, 949 ; government, 989. 
 
 one may, who has legal interest, 1074. 
 
 who, on simple contracts though agents, 1073-1075. 
 
 when, on promise to third person, 1220. 
 SUE SEl^F, one cannot, 29, 882, 883. 
 SUING ON CONTRACT, ratifies it, 1226. 
 SUIT, (See Bkeach — Lawsuit — Specific Performance.) 
 
 commencement of, as to stoppage in transitu, 802. 
 
 how reckon time for bringing, 1439. 
 SUM, effect of blank for the, 1167. 
 SUM PAYABLE, statute cannot diminish, 567. 
 SUNDAY, (See Lord's Day.) 
 
 contract dated or to be performed on, 543. 
 
 money falling due on, when payable, 1438. 
 SUPERINTENDENT, binding employers, 1102. 
 SUPPLIED ALREADY, 
 
 infant, with necessaries, 912, 918, 915. 
 SUPPLIES IN BUSINESS, whether infant bound for, 911. 
 SUPPORT, validity of bargains to, 1277. 
 SUPPORT OF CHILD, past and future, 86. 
 SUPRA PROTEST, paying bill, 212. 
 SURETY, SURETIES, (See Statute of Frauds.) 
 
 rights of, 214; contribution between, 216. 
 
 to statutory bond, 443 and note. 
 
 how altering contract affects, 765. 
 
 death of, whether discharges, 865. 
 
 agent not, for principal, 1085. 
 SURETYSHIP, (See Guaranty.) 
 
 Contract of, as to Statute of Frauds, full, 1250-1266. 
 
 infant's contract of, 933. 
 SURGEON, what skill and care required of, 1416. 
 SURPLUSAGE, in contract, effect of, 385. 
 
 rejecting, from statutory bond, 893. 
 
 rejecting seal as, 1152. 
 SURRENDER, by release, 850. 
 
 of old contract is consideration for new, 768. 
 SURRENDER OF FRANCHISE, ends corporation, 559. 
 SURROUNDINGS, 
 
 Considered in interpreting contract, full, 371-875. 
 
 to explain memorandum under Statute of Frauds, 1249. 
 SURVIVORS, in joint contracts, 863-866. 
 SWEEPING CLAUSE, restrained by what goes before, 409. 
 772 
 
INDEX OF SUBJECTS. THl 
 
 TAKE, no conveyance without capacity to, 890 ; infants may, 923. 
 TAKING EFFECT, parol evidence postponing the, of written, 170, 357. 
 TAXATION, whether State surrender right of, and how, 563. 
 TECHNICAL LANGUAGE, not essential in contract, 405. 
 TECHNICAL RULES, combined with natural justice, as law, 1463-1469. 
 TECHNICAL SUBJECT, gives technical meanings to words, 404, 405. 
 TELEGRAM, how contract by, 322, 328. 
 
 how by, under Statute of Frauds, 1248, 1249. 
 TEMPEST, deemed act of God, 593. 
 
 TEMPORARY INSANITY, power of contract absent during, 959. 
 TENANCY AT WILL, under Statute of Frauds, 1302. 
 TENDENCY TO UNLAWFUL, invalidates contract, 476. 
 TENDER, as preceding suit, 1433. 
 
 whether, of specific articles, 1436. 
 
 when and how, money due, 1437. 
 TERMINATION OF AGENCY, (See Agency — Agent — Death) 
 In what manner, full, 1050-1056. 
 
 notice on, 1105. 
 TERMS OF CONTRACT, meanings of, 404. 
 
 implied contract as depending on particular, 250. 
 
 custom not subvert, 454. 
 TERMS OF CUSTOM, viewed as though written into contract, 456. 
 TESTIMONY OF WITNESS, bargains to influence, void, 496. 
 THIEF, promise of, to restore, 494. 
 
 THIRD PERSON, PERSONS, (See Creditor — Custodian — 
 
 Stranger.) 
 Other than creditors, rights of, in contract, full, 1214-1227. 
 
 promise of, to pay after bankruptcy bar, 96. 
 
 executed deed of lands set aside in favor of, 124. 
 
 paying debt unasked, 211-213. 
 
 when one can recover for necessaries supplied, 231-237. 
 
 estoppels not affect, 267. 
 
 whether deed binds, 274. 
 
 wrongfully selling a thing, owner disclose title, 298. 
 
 claim of, to goods sold, 1309. 
 
 signing by, in presence, 345 ; delivery to, 352, 353. 
 
 injured by conspiracy may bring civil action, 521. 
 
 agreement between two to defraud a, 527. 
 
 injuring, by wager, 531. 
 
 acquiring rights under Sunday contract, 543. 
 
 purchasing after voidable sale, 618. 
 
 not have benefit under contract executed in fraud, 646-649. 
 
 and subsequent purchasers, as to fraudulent contracts, 673-677. 
 
 no rescission after rights of, attached, 679. 
 
 in reforming contract, pi'otected, 710. 
 
 effect of duress to, 727. 
 
 rights of, in paper obtained by duress, 728. 
 
 influence of, nullifying contract, 743. 
 
 773 
 
TXT INDEX OF SUBJECTS. 
 
 THIRD PERSON, PERSONS — core^muerf. 
 
 acquiring altered contract, 750 ; how altering affects, 765. 
 
 whether ratification retrospective as to, 849. 
 
 whether contract by, is with infant or parent, 898. 
 
 estoppel of infant in favor of, 903. 
 
 rights of, deriving title from infant, 928. 
 
 rights of, as to affirming or disaffirming infant's contract, 936. 
 
 title of, to property derived from one insane, 976. 
 
 signing and affixing seal in maker's presence, 1047. 
 
 assuming agent authorized, 1068, 1104, 1105. 
 
 protected in their rights from contracts through agents, 1087, 1091. 
 
 partner's power to bind firm as to, 1145 ; retiring partner, 1148. 
 
 as to instrument in blank, 1174. 
 
 cannot set up Statute of Frauds, 1239. 
 
 bound by promise on consideration of marriage, 1270. 
 
 rights of, after imperfect sale, 1309. 
 
 relations of, in sale under Statute of Frauds, 1324. 
 THREATS, as duress, 715, 716. 
 THREAT OF PROSECUTION, 
 
 whether, invalidate civil adjustment, 494. 
 TIME, (See Extension op Time — Lapse — Reasonable — Short.) 
 As an element in the contract, full, 1336-1349 ; namely, how compute, 1337- 
 1343; essence of contract, or not, 1344-1348. 
 
 part payment at different, from contract, 54. 
 
 extending, as consideration, 62, 63. 
 
 of performance, mutual postponement, 76. 
 
 not impair contract by changing, 567. 
 
 what the, for rescission, 680. 
 
 of payment, altering contract as to, 751. 
 
 in contract, waiver of, 795. 
 
 rescission within what, 832. 
 
 how compute, as to infancy, 894. 
 
 what the, for affirming or avoiding infant's contract, 937. 
 
 for bringing suit, 1439. 
 TIME OF THE ESSENCE, (See Specific Performance.) 
 
 Of contract or not, full, 1344-1348. 
 TIME AND MANNER, waiver as to, of fulfilling contract, 1421. 
 TIME AND PLACE, 
 Effect of, in contract, full, 1336-1412; namely, time as an element in the 
 contract, 1336-1349 ; the Statute of Limitations, 1350-1367 ; the 
 conflict of laws as to the place, 1368-1412. 
 TITLE, (See Vested Title.) 
 
 , failure of, 72. 
 
 warranty of, implied from sale, 243. 
 
 after-acquired, passes by warranty deed, not quitclaim, 277. 
 
 one must show his, to property another is selling, 298. 
 
 lost by estoppel, 300-303, 309. 
 
 tenant not dispute landlord's, 306. 
 
 774 
 
INDEX OF SUBJECTS. TEE 
 
 TITLE — continued. * 
 
 mistaking, 465 ; common carrier not dispute consignor's, 807. 
 
 what, passes on fraudulent sale, 672. 
 
 ■whether revested by cancelling deed, 821. 
 
 infant affirming and disaffirming, 937, 938. 
 
 what covenants for, run with land, 1191. 
 
 in wrong person, creates trust, 1216. 
 
 when passes in common-law sale of goods, 1309. 
 
 to goods, whether passes under sale contrary to Statute of Frauds, 
 1323. 
 
 to land, depends on law where situated, 1394, 1395. 
 
 not good, if grantor not of age where land is, 1396. 
 "TO," effect of, in contract, 1349. 
 TOBACCO, whether, a necessary for infant, 909. 
 TOLL-BllIDGE, private, taking and making free, 573. 
 TOLLS, law creates promise to pay, 206. 
 TOOTH, drawing, a necessary for infant, 909. 
 TOKT, TORTS, (See Carelessness — Trespass.) 
 
 law divided into, and contracts, 183. 
 
 transmuted or not, into contract, 185, 186 ; waiving, 186. 
 
 as to contribution in, 216. 
 
 concurrent remedy with contract, for enticing apprentice, 228. 
 
 election to sue for, or contract, 782. 
 
 infant liable for his, 897. 
 
 when infant binds parent by his, 900; when self, 901. 
 
 husband liable for wife's, 949. 
 
 agent personally liable for his, in agency, 1117. 
 TOWN", not recover for support of pauper, 209. 
 
 franchise of, controlled by legislature, 561. 
 TOWN LOTS, when agent may dedicate, to public use, 1064. 
 TRADE, (See Restraint of Trade.) 
 
 agreement to teach and learn a, reciprocal, 77. 
 
 undertaking not to, with a particular person, 478. 
 
 lying in, 664. 
 TRAINING HORSE, for unlawful race, no pay, 535. 
 TRANSACTION, (See Nature — New Transaction — Uphold.) 
 
 one, on different days, 91. 
 
 fraud vitiates every, 641. 
 
 nature of, as binding or not on executor, 861. 
 TRANSFER, of indebtedness, not within Statute of Frauds, 1261. 
 TRANSFER OF PROPERTY, without consideration, 81. 
 TRANSFER OF STOCK, to avoid stockholder's liability, 650, note. 
 
 under forged power of attorney, 676. 
 TREASURER, form of contract by, 1083. 
 TREAT, agreements to, at elections, 498. 
 TREES, whether deemed real or personal property, 396, 1294. 
 TRESPASS, when promise of indemnity for, void, 483, 484. 
 
 whether father liable for, by child, 900. 
 
 775 
 
UND INDEX OP SUBJECTS. 
 
 TRIBUNAL, meaning of contract not vary with, 427. 
 
 statute determining the, not impair contract, 572. 
 TROUBLE, contract to pay for, in recommending, 527. 
 TROVER, maintainable against infant, 901. 
 TRUST, TRUSTS, (See Position of Trust — Resulting.) 
 
 contracts violative of public, void, 525. 
 
 creating, in favor of third person, 1215. 
 
 who parties in suits on, 1220. 
 
 what, must be evidenced by writing, 1329. 
 TRUSTEE, contracts of, with cestui que trust, 740. 
 
 altering instrument of trust, 754. 
 
 not contract with self personally, 881. 
 
 one, sell without associate's consent, 1089. 
 TRUSTEE OF CORPORATION, contracting to resign, 525. 
 TRUTH, may be an element of fraud, 659. 
 TUITION, paying, while pupil sick, 599. 
 TWELVE, age of, as to marriage, 946. 
 TWENTY YEARS, payment inferred from delay of, 1351. 
 TWENTY-ONE, as age of majority, 893, 894, 946. 
 TWO, whether one can be agent for, 1037-1041. 
 TWO STATES, contracts partly in each of, 1389. 
 
 interpreting contract by laws of, 1394. 
 
 ULTRA VIRES, what, and doctrine of, 1012. 
 
 whether estoppel create, 1023; not ratify, 1110. 
 UNAUTHORIZED AGENCY, 
 
 when principal liable for agent's fraud in, 1112-1114. 
 UNAUTHORIZED ALTERING. (See Altering op Contract.) 
 UNAUTHORIZED CONTRACTS, 
 
 And their ratification, full, 1091-1110; namely, originally binding or not 
 on the principal, 1091-1105 ; ratification by the principal, 1106-1110. 
 
 liability of agent who makes, 1119, 1120. 
 UNAUTHORIZED FRAUD, 
 
 when principal liable for agent's, 1112-1114. 
 UNCERTAIN LANGUAGE, offer in, 324. 
 UNCERTAIN MEANING, contract of, void, 117, 316, 390. 
 UNCERTAINTY, in description, removing, 374-376, 390. 
 UNCONSCIONABLE, (See Unjust.) 
 
 contract void as being, 737. 
 UNDISCLOSED PARTNER, (See Silent Partner.) 
 
 suing and being sued, 1146, 1147. 
 UNDISCLOSED PRINCIPAL, whether, sue on specialty, 426, 1070. 
 
 suing and being sued, on agent's simple contract, 1079, 1080, 1085. 
 UNDUE ADVANTAGE, party taking, must refund money, 629. 
 
 effect of, on contract of drunken person, 984. 
 UNDUE INFLUENCE, 
 
 As impairing contract, full, 740-743. 
 
 776 
 
INDEX OF SUBJECTS. UNS 
 
 UNDUE MEANS, as element in fraud, 650, 660. 
 UNEQUAL, infant's contract which is, void, 931. 
 UNFILLED BLANKS, when invalidate, 1167, 1174, 1176. 
 UNFINISHED WORK, after discharge of workmen, 839-841. 
 UNIFORM, custom must be, 452. 
 UNIMPORTANT OMISSION, 
 
 in executing composition deed, 348, note. 
 UNINCORPORATE ASSOCIATIONS, (See Partnership.) 
 
 As parties to contract, full, 1154-1164. 
 UNITED STATES, (See Government — State.) 
 
 whether, bound by estoppel, 268, 310. 
 
 not forbidden to impair obligation of contracts, 551. 
 
 whether, may be sued, may sue, 989. 
 
 whether Statute of Limitations runs against the, 1365. 
 UNIVERSAL, how far custom must be, 452. 
 UNJUST, (See Unconscionable — Unreasonable. ) 
 
 contract void as being, 478, 737. 
 UNJUST CUSTOM, void, 455. 
 
 UNKNOWN PRINCIPAL, liability of one contracting for, 1120. 
 UNLAWFUL ACTS, contract tending to promote, illegal, 476. 
 UNLAWFUL ARREST, bond to procure, void, 123. 
 UNLAWFUL COHABITATION. (See Illicit Cohabitation.) 
 
 UNLAWFUL CONSIDERATION, mingled with lawful, 74. 
 
 in specialty, 121 ; in simple contract, 171. 
 UNLAWFUL CONSPIRACY. (See Conspiracy.) 
 
 UNLAWFUL CONTRACTS, (See Against Law — Illegal — 
 
 Tendency to Unlawful.) 
 
 not made valid by being under seal, 121. 
 
 construction will not make a contract unlawful, 392. 
 
 all contracts to promote unlawful, are ill, 476, 477. 
 
 legislative power to make a thing lawfully agreed to, unlawful, 594. 
 
 valid and invalid stipulations, 74, 605. 
 
 unlawful in one party only, 628. 
 UNLAWFUL DEED, warranty in, no estoppel, 277. 
 UNLAWFUL IMPRISONMENT. (See False Imprisonment.) 
 
 UNLAWFUL LOTTERY. (See Lottery.) 
 
 UNLAWFUL OBJECT, contract meant to promote, ill, 476. 
 UNLICENSED BUSINESS, (See Peddling Unlicensed.) 
 
 contracts in, void, 547, 548. 
 
 one innocently engaged in, may enforce pay for services, 482. 
 UNLICENSED THEATRE, when actor in, can compel pay, 482. 
 UNLIQUIDATED DEBT, part payment in discharge of, 56. 
 UNREASONABLE, (See Unjust.) 
 
 custom, void, 455. 
 UNREASONABLE DELAY, (See Delay — Statute of Limi- 
 
 tations.) 
 
 bars right, 1349. 
 UNSOUND MIND. (See Insane Person.) 
 
 777 
 
vie INDEX OF SUBJECTS. 
 
 UNSTAMPED, foreign contract, how, 1386. 
 " UNTIL," meaning, in contract, 1343. 
 UNWRITTEN, contract created by law not deemed, 199. 
 UNWRITTEN LAW, whence the, controls statutes, 4-8. 
 UPHOLD TRANSACTION, 
 
 contract to be so interpreted as to, 391-396. 
 USAGE OR CUSTOM, (See Commercial Usage — Custom.) 
 
 Nature of, full, 444-448. 
 Effect of, in contract, full, 449-459. 
 
 effect of, 10. 
 
 as giving meaning to words, 377. 
 
 whether, must be proved, 378. 
 
 authority of agent presumable from, 1103. 
 
 as to auctioneers, 1132, 1133; brokers, 1137; factors, 1139. 
 
 influence of, in law of agency, 1141. 
 
 unincorporate associations, how far governed by, 1154. 
 USURIOUS INTEREST, agent to borrow money, not take, 1059. 
 USURY, under conflicting laws of difierent States, 1374, 1388, 1407. 
 
 VAIN AND IDLE, contract to do thing, whether void, 579. 
 VALID CONTRACTS, 
 
 The, of infants, full, 917-923. 
 VALID WHERE MADE, contract, valid everywhere, 1372-1382. 
 " VALUABLE CONSIDERATION," 
 
 meaning, 42, 43 ; in deed of land, 124. 
 VALUE, VALUES, (See Indeterminate.) 
 
 in consideration, 41-48, 102. 
 
 depreciation in, not failure of consideration, 73. 
 
 fixed by parties, statute not authorize jury to estimate, 567. 
 
 what falsehood as to, is fraud, 666. 
 
 compared with " price," in Statute of Frauds, 1317. 
 
 how estimate, of more articles than one, 1318. 
 VARIED, how specialty, 130, 133 ; how simple contract, 174. 
 VENDOR AND PURCHASER, (See Conveyance — Sale.) 
 
 contract by corporation to sell land, not under common seal, 1016. 
 VERBAL. (See Oral Contracts.) 
 
 VERBAL AUTHORITY, 
 
 sufficient for executing written contract, 1049. 
 VERDICT, after death of party, 1053. 
 VESTED PROPERTY, legislature may control, 574. 
 VESTED RIGHTS, statute cannot divest, 441. 
 
 whether law impair obligation of, 558. 
 
 whether eminent domain extends to, 573. 
 
 how, under bar of Statute of Limitations, 1410. 
 VESTED TITLE, (See Executed.) 
 
 not divested by altering deed, 758. 
 VICIOUS ANIMAL. (See Animal.) 
 
 778 
 
INDEX OF SUBJECTS. "WAG 
 
 VIGILANCE, protected by the law, 672, note, 673. 
 
 VIOLENCE, what, is duress, 718. 
 
 VOID, whether Sunday contract is, or voidable, 542. 
 
 word, as meaning "voidable," 616. 
 
 contract procured by fraud, 646. 
 
 whether contract obtained by duress, 728, 729. 
 
 wrongfully altered contract, 750. 
 
 contract, whether ratification of, 846. 
 
 when infant's contract is, adult not bound, 905. 
 
 whether insane person's, 972, 973 ; drunkard's, 985. 
 VOID CLAIM, forbearance of, no consideration, 68. 
 VOID CONTRACTS, 
 Doctrine of, full, 610-616. 
 Infant's, full, 929-QS5. 
 
 validated by adding consideration, 85; oral proofs, 179. 
 
 are the equivalent of no contract, 188. 
 VOID DEED, no consideration, 70. 
 VOID PATENT, no consideration, 70. 
 VOID AND VOIDABLE, 
 In contracts, doctrine and distinction of, full, 610-622; namely, void, 613- 
 616; voidable, 617-621. 
 VOIDABLE, what fraudulent contracts are, 671, 672. 
 
 whether contract obtained by duress, 728. 
 
 wrongfully altered contract is, 749. 
 
 contract rendered, by matter subsequent, 824. 
 
 contract, may be ratified, 846. 
 
 infant's contract commonly is, 904. 
 
 or void, insane person's contract, 972, 975, 977, 978. 
 
 contract produced by drunkenness is, 985. 
 
 or void, unauthorized contract of agent, 1106. 
 
 oral contract within Statute of Frauds, 1238, 1323. 
 VOIDABLE CONTRACTS, 
 The doctrine of, full, 610, 611, 617-621. 
 Infant's, full, 917, 924r-928. 
 
 who avoid, 620; rescission is avoiding, 809. 
 VOIDABLE MARRIAGE, good until avoided, 619. 
 VOLUNTARY, 
 
 recover back money paid according as, or not, 630, 633. - 
 VOLUNTARY ASSOCIATION. (See Unincorporate.) 
 
 VOLUNTARY SERVICES, no pay for, 220. 
 VOTERS, contracts to supply, with food and liquor, 498. 
 
 WAGER, (See Gaming Contracts.) 
 
 Contract of, full, 530-532. 
 element in gaming, 533. 
 WAGES, (See Services.) 
 
 violating statute, not recoverable, 472. 
 
 779 
 
-yy^IB- INDEX OP SUBJECTS. 
 
 WAGES — continued. 
 
 when death deprives of, 586. 
 WAGES OF SEAMEN, unjust contract as to, void, 478. 
 WAGON, wager whether one had bought, 531. 
 WAIVER, (See Election.) 
 
 Of imperfections in the consideration, full, 94-100. 
 Doctrine of full, 777, 789-808. 
 
 of tort, to sue on contract, 186. 
 
 of the reading, when executing contract, 346. 
 
 of defence to Sunday contract, 542, note. 
 
 by State, of exemption from being sued, 989. 
 
 of right to sue principal or agent, 1085, 1086. 
 
 as ratifying unauthorized contract, 1109. 
 
 of Statute of Frauds, as to performed within year, 1283. 
 
 time as subject of, 1345. 
 
 by defendant, of limitations bar, 1360. 
 
 of time and manner of fulfilling contract, 1421. 
 
 of condition precedent, 1422. 
 WAIVER OF PROCESS, proof of, 1127. 
 WAR, declaration of, effect on contract, 594. 
 
 losses by, deemed from public enemy, 593. 
 
 interrupts contracting, 997, 1000; and suing, 1001. 
 WAREHOUSE RECEIPT, whether contradict, 176. 
 "WARES," meaning, iu Statute of Frauds, 1315. 
 WARRANT OF ARREST, directed to more than one, how execute, 1089. 
 WARRANTY, implied from sale, 243 et seq. 
 
 when, works estoppel in deed of land, 277. 
 
 in sale of non-existing thing, 581. 
 
 of existence of thing, 589. 
 
 representation may constitute a, 663, 
 
 and fraud, may co-exist, 669, 670. 
 
 authority to sell implying power of, or not, 1063. 
 
 whether implied, by agent, of his authority, 1120. 
 WARRANTY OF TITLE, Statute of Limitations as to, 1357. 
 WATCH AND CHAIN, whether, a necessary for infant, 909. 
 WAY. (See Right of Way — Street.) 
 
 WEAK MIND, (See Insane Person — Mental Weakness.) 
 
 mingling with fraud, fraud practised on, 640, 656, 735. 
 
 not necessarily insanity, 958, 963. 
 WIDER EXPRESSIONS, limited, in construction, by narrower, 406. 
 WIDOW, hard bargain with, as to property left by husband, 7S9. 
 WIFE, (See Deserted Wife — Married Women.) 
 
 infant husband pay ante-nuptial debts of, 201. 
 
 no claim on husband for services, 229, 949. 
 
 may charge husband with necessaries, 235, 949, 1043. 
 
 duress of, as impairing husband's contract, 727. 
 
 infant husband to support, 910. 
 
 insane person chargeable with necessaries for his, 968. 
 780 
 
INDEX OP SUBJECTS. "WKI 
 
 WIFE — continued. 
 
 form of agent's note binding, 1082. 
 
 whether, work to pay husband's debts, 1208. 
 WIFE'S LANDS, common-law rights of husband in, 949. 
 "WILFUL INJURY, infant liable for, 901. 
 WILL, (See Bequest.) 
 
 contrary to agreement, vacated, 224, note. 
 
 estoppel by accepting benefit under, 305. 
 
 compared with deed, as to repugnant clauses, 389. 
 
 writing ill as, may operate as deed, 384. 
 
 compelling election under, 780. 
 
 incapacity to make, compared with other incapacities, 961. 
 
 agreement to pay by, may be oral, 1279 ; to leave money by, 1284. 
 WILLS, of parties, must coincide, 313, 316. 
 WITHDRAW, whether one may, his license, 1299, 1300. 
 
 his offer, rules concerning, 325-328, 332. 
 WITHIN A YEAR, 
 
 Agreements not to he performed, full, 1272-1284. 
 WITHOUT CONSIDERATION, contract, good if executed, 81. 
 W^TNESS, (See Attesting Witness.) 
 
 binding, by recognizance, to appear, 144. 
 
 promise of, not to testify, &c. void, 496. 
 WITNESSING DEED, estoppel by, 303. 
 WOMAN, betting that one is a, 531. 
 WOOD, specialty on, not good, 110. 
 
 simple contract written on, 340. 
 WORD IN CONTRACT, interpretation gives effect to every, 384. 
 WORDS, (See Express — Particular — Written.) 
 
 not indispensable in estoppel, 290. 
 
 parties estopped to deny effect of their, 317, 381. 
 
 how determine meaning of, 377. 
 
 when part of the, rejected as sui'plusage, 385, 386. 
 
 meanings given to, by interpretation, 404-406. 
 
 preferring the later, limiting general by specific, 421. 
 
 meaning same in sealed and unsealed, 426. 
 
 how variable in meaning, 428. 
 WORK, (See Services.) 
 
 compelling debtor to, for creditor, 1208. 
 
 what agreements for, must be in writing, 1280, 1281. 
 WORK ON PERSONALTY, owner forbidding, after contract, 839. 
 WORK ON REALTY, owner forbidding, after contract, 840. 
 WORKMAN, by the day, what skill and care required of, 1416. 
 WRIT OF ENTRY, infant's disaffirmance by, 942. 
 WRIT OF ERROR, whether, lies against government, 989. 
 WRITING, (See Contemporaneous — Dbliveky — Signing.) 
 
 The, in written contracts, full, 340, 341. 
 
 What contracts required to he in, full, 1228-1335; namely, under Statute 
 of Frauds, 1228-1325; other contracts as to, 1326-1335. 
 
 781 
 
YEA INDEX OF SUBJECTS. 
 
 WRITING — continued. 
 
 contract in, consideration oral, 75. 
 
 statutes requiring, apply to what agreements, 173. 
 
 where Statute of Frauds requires, estoppel without, 309, 1237. 
 
 one signs, other accepts, both bound, 342. 
 
 when infant's ratification to be in, 944. 
 
 statute requiring contract to be in, how oral, 1238, 1239. 
 
 license in, 1301; convey personalty without, 1808. 
 
 when, necessary to intercept limitations bar, 1362. 
 WRITTEN CONTRACT, (See Altering — Blanks — Simple.) 
 
 consideration of, orally proved, 75; attaching oral to, 172. 
 
 law-created contract is not deemed, 199, 203. 
 
 delivery essential to, 349. 
 
 doctrine of alteration includes every, 759. 
 
 unsealed, and oral, of equal grade, 766. 
 
 clause in, forbidding oral alteration, 767. 
 
 where statute requires writing, oral alteration of, 769-771. 
 
 rescinded orally, 814; oral release of, 852. 
 
 form of corporation's, 1018, 1019. 
 
 authority to execute, may be oral, 1049. 
 
 not orally contradict, 1074. 
 
 written matter, in printed contract, how interpret, 413. 
 WRITTEN AND ORAL, of equal grade, 158. 
 WRITTEN TERMS, one refusing to sign agreed, other rescind, 828. 
 WRITTEN WORDS, 
 
 What besides, regarded m interpretation, full, 369-378. 
 Leading rules to interpret, full, 379-418. 
 Precedence of the rules, 4:ld-i2S. 
 WRONG, WRONGS, (See Both — Plaintiff — Tort.) 
 
 law not redress all, 101. 
 
 interpretation to avoid, 380, note. 
 
 one not avail himself of own, 642. 
 
 civil and criminal, committed through agents, 1111. 
 
 defendant in suit should be in the, 1418. 
 WRONG-DOERS, no contribution among, 216. 
 WRONG WORD, used in contract, effect of, 383. 
 WRONGFUL RESCISSION, (See Rescission.) 
 
 as breach of contract, 1428. 
 
 YEAR, 
 
 Agreements not to be performed withm a, full, 1272-1284. 
 how computed in contract, 1338. 
 
 University Press: John Wilson & Son, Cambridge. 
 
 782