Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN HEnORY OF JUDGE DOUQLASS BOARDMAN FIRST OEAN OF THE SCHOOL By his Wife and Daugliter A. M. BOARDMAN and ELLEN D. WILLIAMS Cornell University Library KFN5975.W14 1883 V 2 The law and practice in.civil actions an 3 1924 022 881 662 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022881662 THE LAW AND PRACTICE IN CIVIL ACTIONS AiND PROCEEDINGS IN JUSTICES' COUETS APPEALS TO THE COUNTY COURTS IN THE STATE OF NEW YORK, INCLUDING THE PRINCIPLES OF LAW RELATING TO ACTIONS OR DEFENSES ; THE RULES OP PRACTICE, OF PLEADING, AND OF EVIDENCE ; TOGETHER "WITH PRACTICAL FORMS AND PRECEDENTS. BY WILLIAM WAIT, COtTNSBIjOH AT LAW. IN THREE VOUIMES. VOL. IL FTFTH: EDITION". By Edwin Baylies. ALBANY : WILLIAM GOULD & ElON. 1883. Entered according to the Act of Congress, in the year one thousand eight hundred and eighty-three, By JAMES A. WILLIAMSON, Executor Estate of WILLIAM WAIT, In the Clerk's Office of the District Court of the United States, for the Northern District of New York. TABLE OF CONTENTS. PAET II. The principles of law relatvng to contracts in general — Continued. CHAPTER xm. PAGE. Sale •. ' 1 Section 1. What constitutes a sale 1 Section 2. What is a bailment instead of a sale 4 Section 3. Sales in gross 5 Section 4. Requisites of a valid sale 7 Section 5. Must be subject-matter of sale 9 Section 6. Construction of contracts of sale 11 Section 7. When the title passes on a contract of sale 15 Section 8. Sale or return 23 Section 9. Conditional sales, and sales by vendors without title 25 Section 10. Delivery of the property sold 36 Section 11. Sale of articles to be manufactured -54 Section 12. Sale or delivery procured by fraud 55 Section IS. Rescinding contracts of sale 62 Section 14. Warranty 74 Section 15. Stoppage in transitu 104 Section 16. Sales, how aSected by the statute of frauds 110 Section 17. Eights and remedies of parties to contracts of sale 128 CHAPTER XIV. Interest on money 137 CHAPTER XV. Usury ■ 15^ CHAPTER XVI. Insurance 1^*' Section 1. Contracts of fire insurance and actions thereon 190 Section 2. Insurance premium notes 207 CHAPTER XVH. Judgments • **'^ viii TABLE OF CONTENTS. CHAPTER XVm. PAGE. Fixtures 226 Section 1. Heir, executors, etc 236 Section 2. Landlord and tenant 228 Section 3. Vendor and purchaser of real estate 232 Section 4. Mortgagor and mortgagee of real estate 335 Section 5. When liable to execution 338 CHAPTER XIX. Statute of frauds 239 Section 1. General principles 339 Section 2. Contracts not to be performed within one year 245 Section 3. Promises to answer for the debt, default or miscarriage of another 357 Section 4. Sale of an interest in lands, etc 373 Section 5. Agreements not within the statute 384 Section 6. Leases for one year 287 Section 7. Fraudulent sale, assignments, judgments, etc 288 CHAPTER XX. Husband and wife 298 Section 1. How the relation is created 298 Section 2. Rights of married women 300 Section 3. Liability of married women on contract 311 Section 4. Liability of a married woman for wrongs 823 Section 5. Liability of the husband for the support of the wife 325 Section 6 Liability of husband for torts of his wife 331 CHAPTER XXL Parent and child 333 Section 1. Liability of parent to maintain children 333 Section 2. Education of children 338 Section 3. Of the rights of parents 339 CHAPTER XXn. Common counts 345 Section 1. Goods bargained and sold 345 Section 3. Goods purchased and refusal to deliver 347 Section 3. Warranty on sale or exchange 349 Section 4. Actions to recover for labor and services 351 Section 5. Work, labor and materials furnished 373 Section 6. Money lent and advanced 376 Section 7. Money paid, laid out and expended 378 Section 8. Money had and received 391 Section 9. Use and occupation 407 Section 10. Account stated, or balance struck, etc 411 TABLE OF CONTENTS. ix PAET ni. Tlie law relating to torts or wrongs. CHAPTER I. PAGE. Actions for torts or wrongs 418 Section 1. General principles relating to torts 418 Section 2. Fraudulent representations as to credit of a third person . . . 424 Section 3. Officers. Official neglect or misconduct 430 Section 4. Injuring or enticing away a servant 436 Section 5. Escape , 438 Section 6. False return 443 Section 7. Nuisance. General character of a nuisance 445 Nuisance afiecting personal health or comfort 449 Nuisance affecting real estSite 453 Section 8. Penalties 458 Section 9. Trespass to property 467 Section 10. Trespass upon real estate 472 Possession 475 Section 11. License 485 Section 12. Of division and other fences 490 Fences 500 Damage feasant 506 Section 13. Water and water-courses 507 Diverting water of streams, etc 509 Diversion of subterranean water 513 Obstruction of water, etc 517 Plowing lands above 520 Flooding lands below . -. 521 Back water upon a mill above 532 Interference with surface water 523 Section 14. Fish and game laws 525 Section 15. Trespass to personal property 541 Section 16. Trover 553 By whom 554 Against whom 559 For what property 562 The conversion 570 Conversion by a wrongful taking 571 Conversion by a wrongful assumption of the property 573 Conversion by demand and refusal 576 When trover cannot be maintained 585 Section 17. Negligence 585 What is such negligence as to be actionable 585 Plaintiff's own negligence as a bar to his action 590 Liability of one person for the acts of another 594 Where acts of negligence are not actionable 600 Negligence in relation to the law of the road 606 Section 18. Injuries by domestic and other animals 611 X TABLE OF CONTENTS. Actions for torts or wrongs. — Continued. pagb. When an action will lie for such injuries , 611 When an action will not lie 617 Section 19. Frauds in sales, exchanges or otherwise 619 Section 20. Replevin 630 When the action lies 631 For what property 635 Property taken by virtue of a tax, fine, assessment or execution, etc 636 When the action does not lie 638 Section 31, Actions under the OivU Damage Act 644 PAET ly. The law relating to defenses. CHAPTER I. General considerations 651 Section 1. General denial , . 65 1 Section 3. Affirmative defenses 656 Section 3. Another action pending 659 Section 4. Infancy 663 Who is an infant 663 What acts are void or voidable 663 Right to disaffirm a contract 664 What is an affirmance or ratification 665 Disaffirmance of contract 667 Liability for torts or wrongs 667 Liability for necessaries 670 Actions against infants*. 673 Section 5. Lunacy, idiocy and unsoundness of mind 673 Section 6. Drunkenness or intoxication 675 Section 7. Coverture 678 Section 8. Alteration or modification of contract by consent 679 Section 9. Alteration or erasure without consent 683 Alteration of sealed instruments, deeds, etc 683 Alteration of written unsealed contracts 683 Alteration of bills or notes 684 Alterations, by whom made 691 Presumption as to time when alteration was made 693 Section 10. Illegality of contract 694 General principles 694 Contracts in restraint of trade 696 Corrupting legislation 703 Wagers, betting and gaming, etc 704 Sunday laws 704 Contracts tending to promote prostitution, etc 707 Contracts against public policy 709 Acts or sales by unlicensed persons 714 Usurious agreements or contracts 715 TABLE OF CONTENTS. xi Illegality of contract. — Continued. page. Violation of statutes 715 Divisible contracts, part being good and part bad 717 Section 11. Impossible contracts 719 General principles 719 Act of Q-od 719 Act of the law, or legal impossibility 721 Physical impossibility . . 723 Section 12. Higher security, merger, extinguishment, etc 721 Section 13. Performance 728 Prevention and dispensation 728 Default in doing the first act 730 Cumulative and alternative stipulations 730 Time of performance 731 Mode of performance 732 Excuses for non-performance 734 Of part performance 734 Section 14. Former adjudication 735 Former recovery by the plaintiff 735 Former suit, -when plaintiff set off demand 736 Former suit and neglect to interpose a counter- claim 738 Former action and judgment for the defendant 740 Defense must be pleaded 741 Judgment when a bar, and how far conclusive 741 Splitting demands 745 Splitting demands arising on contract. ^ 745 Splitting demands for torts 747 Subject of second suit, matter of defense in former action 748 Former recovery must have been on the merits 749 Must be between same parties 750 Same subject-matter , 751 Conclusiveness of judgment 753 Section 15. Recoupment 755 What it is 755 Breach of warranty 757 Damages for fraud 757 Must arise out of contract sued on 758 Landlord and tenant 759 Who may recoup - 760 In what cases recoupment not allowed sureties 761 Actions for torts 762 Election to recoup 763 Defense must be pleaded 765 Pendency of another action 765 Damages 765 Section 16. Set-off 766 Nature of set-off 766 Section 17. Counter-claim 768 Jurisdiction of tlie counter-claim 770 xii TABLE OF CONTENTS. Counter-claim, — Continued. page. Must tend to diminish or defeat a recovery by the plaintifE 770 Must be a cause of action against the plaintiff, etc 771 Must be in favor of the defendant or one or more defendants, etc 771 Distinct independent demands 773 Demands arising out of or connected with the plaintifE's claim 775 Effect of the statute of limitations 777 Pleading a counter-claim 777 Form of judgment in case of counter-claim 778 Effect of a failure to interpose a counter-claim 778 Section 18. Statute of limitations 779 General principles 779 What actions are barred 779 Computation of time 781 Absence from State 788 Disabilities. 791 Death of party 793 Commencement of prior action, etc 793 Exceptions 793 Mutual accounts 793 Concealment of cause of action 796 New promise 797 Conditional promise 808 Promise, by whom made 809 Promise, to whom made 810 New promise, etc., as to tort 811 Part payments , 811 By whom made .- 813 To whom made 815 Payments, how made 816 Payment by bill or note 818 Payment in goods,- chattels, etc 819 Payment must be voluntary 819 Oral admissions of payment 819 Section 19. Release 831 What a release is 831 Upon what a release operates 833 Construction of release 834 Who may execute release 825 Release of one of several parties 836 Release, when implied by law 838 Effect and conclusiveness of release 880 Section 30. Arbitrament and award 831 The submission, and who may submit 837 What questions may be submitted 840 Form and construction of submission 841 Revocation 844 Umpires 845 Hearing, and proceedings thereon 846 TABLE OF C0JS:TENTS. xiii Arbitrament and award. — OonUnued. page. Award, when to be made 849 Awai-d, by whom made 850 Requisites of an award 852 Mutuality 853 Reasonable 854 Finality , : ... 854 Certainty 855 Possible 858 Form and execution of an award 859 Delivery of award , 860 Construction 861 Action for breach of submission 863 Pending actions 863 Effect of an award 865 Impeaching awards 866 Must be pleaded 869 Section 21. Accord and satisfaction 869 Definition and general principles 869 Satisfaction, from whom to move 870 Satisfaction, to whom 871 Value of satisfaction 871 Not merely executory 873 What is a sufficient accord and satisfaction 874 What is not sufficient as an accord and satisfaction 877 Defense must be pleaded 880 Section 33. Tender 880 What it is 880 By whom made 881 To whom made 882 When to be made 883 Where to be made 884 Manner of tendering 885 The thing tendered 892 Tender of chattels 896 Keeping tender good 898 Efifect of a tender 899 Manner of pleading- tender 900 Section 33. Failure of consideration 903 Section 24. Parol discharge from sealed contract 904 Section 25. Non-performance of conditions precedent 905 Section 26. Payment ♦. 907 What is 907 By whom 911 To whom 911 Part payment 913 By letter 914 In forged paper 915 Bank bills 916 xiv TABLE OF CONTENTS. Payment. — Continued. page. By check 917 By note or bill 918 Application of 923 Voluntary payments 928 Chattel notes 928 Pleading 928 Section 27. Duress 928 What it is 928 When it avoids a contract • 929 What does not avoid a contract 932 Section 28. Estoppel ' 934 What it is 934 Kinds of 935 By record 935 By deed 936 Not favored as a defense 938 Eeciprocal 938 Who not bound by 939 Estoppel m pais, or equitable estoppel 939 By pleadings 941 Admissions or assertions as to a matter of law 941 Sales of property 942 Execution sales 943 Assigned claims, etc 945 Indorsements 946 Certificates of validity 947 Official returns, etc , 948 Landlord and tenant 948 Former adjudication 950 Partnership 950 Principal and agent 950 Corporations 950 Performance of condition precedent 950 Waiver of exemption laws 950 Eeceiptor 951 Error of party making assertion 951 Eelease 953 Tender 953 TABLE OF CASES. PAGE. Abbey v. Deyo 310, 316 Abbott V. Blossom 23, 131 Abbott V. Booth 435 Abbott V. Draper 69, 73, 280, 390 Abbott v. Johnstown, Gloversville, etc., Horse R. R. Co 599 Abbott V, New York Cent., etc., R. R. Co 458 Abbott V. Yost 550 Abeel v. Radcliff 409 Abington v. Lipscomb 584 Abrahams v. Claussen 174 Academy of Music v. Hackett 652 Acer V. Merchants' Ins. Co 193 Acker v. Acker 792 Acker v. Campbell 58, 65 Acker v. Ledyard , 693 Ackerman v. Runyou 672 Ackley v. Dygert 939, 940 Ackley v. Finch 188, 859 Ackley v. Westervelt 313, 318 A'Court V. Cross 779 Acton V. Blundell 509, 514 Addington v. Allen 428 Adkins v. Brewer 545 Adolph V. Cent. Park, etc., R. R. Co. 609 Adams v. Beadle 234 Adams v. Carroll 794 Adams v. Curtis . 310 Adams v. Dale 41 Adams v. Davidson 294 Adams Express Co. v. Milton 143 Adama Ex. Co. v. Reno 392 Adams v. Fort Plain Bank 141, 786 Adams v. Freeman 406, 483 Adams V. Goddard 563 Adams v. Helm 891 Adams v. Hopkins 371 Adams v. Honness 310 Adams v. Mayor o£ New York. . 373, 374 Adams v. Mills 324 Adams v. O'Connor 32 Adams v. Orange Co. Bank 806 Adams v. Popham 447 Adam.s v. Reeves 398 Adams V. Rivers 480 Adams v. Sage 625 Adams v. Saratoga R. R. Co 480 Adams v. Scull 462 Adams v. Stevens 357 Adams v. Stratham 852 Adams v. Van Alstyne 286, 504 mna, Fire Ins. Co. v. Tyler 203 PAGE, V. Johnson. 564 Agate V. Richards 736 Aguirre V. Allen 113, 116 Aguirre v. Parmelee 107 Ahem v. Qoodspeed 83, 85, 183 Aiken v. Buck , 476, 542, 543, 549 Aiken v. Benedict 453 Aiken v. Davis 730 Aiken v. Hyde 25 Ainsley v. Mead 313, 315, 318 Ainslie v. Wilson 380, 727 Almy v. Harris 462 Almy v. Wilcox 328 Alsager v. Close 574 Alsen v. Upsahl 548 Alt V. Weidenberg 554, 644 Althause v. Rice 476 Althorf V. Wolfe 596, 598 Altman v. Altman 840 Altreuter v. Hudson R. R. R. Co 609 Alvord V. Haynes 546, 573, 631 Albro V. Agawam Canal Co. . . . 601, 604 Alder v. Boyle 906 Alder v. Savill 858, 861 Alderson v. Langdale 687 Aldred v. Constable 575 Aldrich v. Brown 358 Aldrich v. Howard 451 Aldrich v. Jackson 97, 910 Aldrich v. Pyatt 125 Aldrich v. Reynolds 160 Aldrich v. Sager 646, 648 Alexander v. Germania Fire Ins. Co. 195 200 Alexander v. Greene. 589 Alexander v. Hard 481 Alexander v. Hoyt 550 Alexander v. Northwestern Univer- . sity 365 Alexander v. Southey 579, 583 Alexander v. Taylor 743 Alexandria Canal Co. v. Swann 839 Alford V. Baker 918 Alfred v. Bray 546 Alger V. Johnson 655 Allaire Works v. Guion 762 Allaire v. Whitney 759 Allard V. Greasert 117, 124 Allen V. Bates 370 Allen V. Crary 632, 637, 641 Allen V. Crofoot 490 Allen V. Culver 923, 924, 925, 926 Allen V. Eighmie 266 XVI TABLE OF OASES. PAGE. Allen V. Fiske 486 AUbu v. Fox 147 Allen V. Franklin Fire Ins. Co 191 Allen V. Harper 505 Allen V. Hammond 9 Allen V. Horton 739 Allen V. Jaquish 905 Allen V. Judson 644 Allan V. Lake 77, 82 Allen V. Merchants' Bank 90 Allen V. Mille 797 Allen V. Patterson 831 Allen V. Kescous 696 Allen V. Eiclimond College 352 Allen V. ScarflF. 269 Allen V. State 446 Allen V. Vermont Mut. Fire Ins. Co. 198 Allen V. Watson 844, 863 Allen V. Webster 798 Allis V. Read 121, 122 Allison V. Matthieu 58 Alley V. Adams. . . 569 AUgoever v. Edmunds 773 Ailing V. Munson 838 AllsUouse V. Ramsey 885 Ambler v. Cox 273 Ambler v. Owen 285 Ambrose v. Kerrison. 386 Amburger V. Marvin. ..250, 251, 254, 654 Amedon v. Gannon 703 American Exchange Bank v. Webb. 391 294 American Union Tel. Co. v. Middleton 472 Ames V. Downing 141 Ames V. New York Union Ins. Co. . . 199 Amidon v. Wheeler 406 Amies v. Stevens 721 Amory v. Brod wick 134 Amsden v, Manchester 621 Anderson v. Hamilton Township. . . . 355 Anderson v. Highland Turnpike Co.. 871 Anderson V.Nicholas... 34, 62, 558, 559 Anderson v. Simpson 485 Andrew v. Boughey 914 Andrew v. Newcomb 10 Andrews v. Bond 653, 940 Andrews v. Durant 15, 22, 55, 147 Andrews v. Foster 354 Andrews v. Hart 161 Andrews v. Keeler 137 Andrews v. Kneeland 8 Andrews v. Murray 886 Andrews v. Shattuck 581 Andrews v. Smith 726 Andrews v. Union Ins. Co 306 Andriot v. Lawrence 949 Angel V. Felton 921 Anonymous 57 Ansell f . Baker 727 Anstice v. Holmes 641 Anthony v. Haneys 488 Anthony v. Wheatons 52 Antram v. Chace 866 Archer v. Boudinet 653 Archer v. English ... 901 Archibald v. Thomas 167 PAGE. Argall V. Bryant 787 Argus Co. V. Mayor of Albany 245 Armitage v. Pulver 385 Armory v. Fly n 471 Armour v. Michigan Cent. K. R. Co.. 35 Armstrong V. Bufford 92 Armstrong v. Garrow 405 Armstrong v. McDonald 340, 341 Arnold v. Angel 659 Arnold v. Crowder 237 Arnold v. Delano 105 Arnold v. Downing 805, 819 Arnold V. Foot 510 Arnold v. Johnson 773 Arnold v. Kelly 562 Arosemena v. Hinckley 576 Arrex v. Brodhead 434 Arrieta v, Morrissey 403 Arrington v. Larrabee 489 Artcher v. Zeh 114, 122. 254 Arthur v. Griswold 437 Arthurtou v. Dalley 728 Arctic Fire Ins. Co. v. Austin. . . 589, 590 Artisans' Bank v. Backus 694, 736 Ascher V. Grand Trunk Railway Co . . 109 Ash V. Putnam 55, 56, 58, 65 Ashburn . 387 Clifford V, Dam 447, 448, 598 Clifford V. Parker 687 Clinton v. Brown 950 Clinton V. Myers 509,513,513, 518 Clinton v. Rowland 336, 343 Clinton V. Townsend 147 Clippinger v. Hapbaugh 703 Close v. Stewart 744, 750 Clough V. Murray 679, 680 Clow V. Borst 870 Clate v. Carr 281 Clute V. Robison 733 Clute V. Small 686, 690 Coates V. Stevens 80 Coats V. Darby 546 Cobb V. Dows 393. 394 Cobb V.Hatfield 67 Cobb V. Fisher 484 Cobb V. Titus 170 Cobbett V. Clutton 555, 583 Coburn, Ex parte 485, 487 Cock V. Honychurch 873 Cock V. Moore 265 Cockle V. Flack - 166 C!ockrell v. Aucompte = 47 Cocksv. Weeks 798, 808 Cockson V.Ogle 856 Codd V. fiathbone 168 Coddington v. Goddard 113 Coddington v, Paleologo 41 PAGE. Coe V. Hobby 679, 905 Coe V. Mason 799 Cofield V. Clark 54 Coggins V. Bulwinkle 747 Cogill V. Am. Bxch. Bank 946 Cohen v. Mutual Life Ins. Co 734 Coit v.Beard 749 Coit v. Houston 897, 898 Ooker v. Birge 451 Colby v. Stevens 899 Coldcock V. Reid 97 Golden v. Eldred 507 Cole V. Blake 890 Cole V. Blunt 849, 850 Cole V. Drew 480 Cole V. Jessup 791 Cole V. Mann 36, 37 Cole V. Savage 178 Cole V. Stone 323 Coleman v. Bean 937 Coleman v. First Nat. Bank 345 Coleman v. Garrigues 375 Coleman v. Mead 363, 363, 364 Coleman v. Wade 865 Coles V. Coles 405 Colgrave v Dias Santos. . . ., 580 Coller V. Shepard 585 Colley V. Streeton 759 Collier v. Coates 280, 390 Collier v. Farley 646 Collins V. Bennett 743, 753 Collins V. Blantem 713 Collins V. Carnegie 357 Collins V. N. Y. Cent. & H. R. B. R. Co 605 Collins V. Phoenix Ins. Co 193 Collins V Price 729 Collins V. Ralli 34, 62. 556 Collins V. Thayer 785 Collins V. Vanderbilt 847, 867 Collins V. Westbury 932 Collinson v. Margesson 804 Collis V. Bowen 544 Collis V. Stock 801 Collyer v. Willcock 817 Colt V. Sixth Ave. R. R. Co 597 Colton , Ex parte 235 Colton V. Dunham 159 Columbia Co. v. King 163 Columbia Turnpike Co. v.Woodworth. 465 Colville V. Besly 903 Colvin V. Holbrook 406 Colwill V. Reeves 544 Combs V. Bateman 114, 133, 139 Comer v. Cunningham 20, 25, 33 Comfort V. Kiersted 33, 54 Commercial Bank of Penn. v. Union Bank of N. Y 918 Commercial Bank V. Rochester. . 383, 933 Commercial Ins. Co. v. Robinson. . . . 207 Commercial Mut. Ins. Co. v. Brett. . 803 Commissioners of Excise v. Keller . . 333 464 Commonwealth v. Collins 345 Commonwealth v. Mason 399 Commonwealth v. Munsey 833 XXVI TABLE OF CASES. PAGU. Comatock v. Drohan 380 Comstock V. Hier 574 Comstock V. Hutchinson 350 Comstock V. Tupper 403 Concord v. Delaney 391 Conderman v. Smith 10 Conderman v. Trenchard 714 Condit V. Bald^vin 166 Cone V. Delaware, L. & W.R. R. Co. 603 604 Cone V. Niagara Fire Ins. Co. . . 191, 193 Conger v. Dean 838 Conger v. Tradesmans' Bank. .. 167, 188 Congor V. Chamberlain 83 Congreve v. Morgan 448, 599 Congreve v. Smith 448 Conhocton Stone Road v. BuflFalo, etc. , E. R. Co 455 Conklin v. Thompson 611, 668 Conkling v. King 920 Conley v. Palmer 463 Coulin V. Cantrell 322, 333 Connah v. Hale 575, 579 Connah v. Sedgwick 294 Connecticut v. Jackson 148, 154 Connell v. Mulligan 889 Conner v. Routh 690 Conners v. Holland 146 Connop V. Levy 425 Connoss v. Meir 653 Conor V. Dempsey 774 Oonorer v. Hobart 179 Conroe v. Birdsall 664 Contant v. Chapman 431 Couturier v. Hastie 9 Conway v. Belfast Ry. Co 601, 604 Conway v. Bush 18 Conway v. Conway 909 Conway V. Reed 338, 668 Conyers v. Eunis 109 Cook V. Baslejr 393 Cook V. Bradley 338 Cook V. Champlain, etc., Co 330 Cook V.Clark 151, 170 Cook V. Daggett 353 Cook V. Gregg 506 Cook V. Harper . , 546 Cook V. Howard 649 Cook V. Lister 871 Cook V. Litchfield 663 Cook V. Moseley 77, 79 Cook V. Nathan 397 Cook V. Patterson 554 Cooke V. ^tna Fire Ins. Co 194 Cooke V. Clay worth 675 Cooke V. Meeker 140 Cooke V. Millard 55, 114, 116, 137 Cooke V. Nathan 639 Cooley V. Betts 407 Coome V. Green 906 Coombs V. New Bedford Cordage Co. 603 Coon V. Brook 313 Coon V. Congden 550 Coon V. Knap 876 Coon V. Snyder 623 Cooper V. Dedrick 243 PAOH. Cooper V. First Presb. Church, etc. . . 470 Cooper V. Lloyd 387 Cooper V. Martin 337 Cooper V. Newman 561 Cooper V. Shaver 215 Cooper V. Slower. 486 Cope V. Gilbert. , 850 Cope V. Rowlands 716 Cope V. Wheeler. 176 Cppley V. Rose 546 Copper, etc., Co. v. Spencer 281 Coray v. Matthewson 69 Cord went v. Hunt 905 Corcoran v. Holbrook 603 Cornell v. Barnes. . . . 431, 433, 444, 551 Corey v. White 392 Cormack v. Molburg 947 Cormier v. Batty 576, 577 Cornell v. Cook 558 Cornell v. Masten 826 Cornell v. Moultou 783 Cornell V. Town of Guilford 480 Corn Exchange Ins. Co. v. Babcock. . 301 314, 332 Cornfoot v. Powke 425 Cornforth v. Rivett 767 Cornforth v. Smithard 800 Corning v. Colt 45, 48, 101 Corning v. Troy Iron, etc.. Factory. 940 Cornish v. Abington 939, 943 Cornwall v. Mills 587 Cornwall v. Haight,. ...133, 134, 348, 866 Corrigan v. Sheffield 43, 46, 135 Corseu v. Oliver 546 Corsi V. Maretzeck 869 Cort. V. Ambergate, etc., R. R 729 Corwin v. N. Y. , etc., R. R. Co. .506, 598 Cory V. Silcox 458 Cosgrove v. N. Y. Cent. R. R. Co., 590, 591 Cosgrove v. Ogden 595, 596 Coster V. Dilworth 166 Costigan v. Hawkins 67, 99 Costigan v. Newland 406 Cotheal v. Brouwer 463 Colton V. Godwin 893 Cotton V. Maurer 658 Cottrill V. Stevens 134 Couch V. Mills 829 Couch V. Rochester German Fire Ins. Co 196 Cough try V. Globe Woolen Co 590 Couling V. Coxe 430 Coulter V. Am. Merchant's Union Ex. ■ Co 598 Countryman v. Lighthill. 453 Courtney v. N. Y. aty Ins. Co 204 Courtney v. Earl 432 Courtwright v. Stewart 126, 373 Cousland v. Davis 558, 563 Couston V. Chapman 50 Covell V. Hart , 372 Covell V. Hill :..... ,23, 30. 84, 59 Covell V. Hitchcock 108 Coventry v. Barton 696 Coventry v Gladstone 108 Covert V. Hughes 323 TABLE OF CASES. XXVI] PAGE. Covington Drawbridge Co. v. Shep- hard 396 Cowell V. Thayer 520 Cowden v. Qottgetreu 2t>9 Cowdrey v. Carpenter 713 Cowen V. Simpson 623 Cowles V. Balzer 606 Cowles V. Kidder 523 Cowpertliwaite v. Sheffield 927 Cox V. Glae 476 Cox V. Jagger 852, 862 Cozine v. Walter 444 Crade v. Ingraham 823 Cragg V. Bowman. 330 Craig V. Burnett 431 Craig V. Ward 427, 952 Craighton v. Comstopk 47 Craiu v. Beach 747 Cram v. Dresser 759 Cram v. Hendricks 173 Cram v. Union Bank 6 Cramer v. Lepper 149, 179 Crandall v Clark 133 Craue v. Bingham 232 Crane v. Dygert 153 Crane v. Hardman 143 Crane v. Hendricks 170 Crane v. Hubbel 106 Crane v. McDonald 919 Crane v. Price 159 Cranston v. Kenny 867 Crary v. Smith 348 Crary v. Turner 439 Crawford v. King i 266 Crawford v. Goulden 788 Crawford v. Lock wood 951 Crawford v. Millspaugh 821 Crawford v. N. Y., etc., E. R. Co.. 506 598 Cregier v. Cheesebrough 858 Cremin v. Byrnes 942 Crepps V. Durden 463 Cresson V. Stout, 238, 632 Creuse v. Deflganiere 804 Crisp V. Churchill 708 Crispin v. Babbitt 601, 604 Crooker v. Bragg 512 Crocker v. Gullifer 5, 560, 561, 573 Crofoot V. Bennett 16, 18 Cromwell v. Benjamin. 327, 678 Cromwell v. Gallup 435 Cromwell v. Lovett 919 Croninger v. Crocker 41, 49 Crookshank y. Burrell 127 Crooks V. Moon 15, 64, 346 Cropsey v. Murphy 449 Cropsey v. Sweeney 341, 355 Crosby v. Wadaworth 481 Crosby v. Blanchard. . . , 850 Cross V. Andrews 674 Cross V. Huntley 903 Cross V. O'Donnell 38, 105, 115, 117 Crossley v. Lightowler 519 Croswell v. Crane 287, 408 Crozer v. Pilling 883 Cruikshank v. Brouwer 312 I PAGE, Crnickshanks v. Rose y26 Crump V. Lambert. 446, 452 Cruty V. Erie R'y Co 602 Cubitt V. Porter 501 Cuck V. Quackenbush 794 Culburn v. Lansing 320 Cullnick V. Swindell 235 Cullom V. Mock 358 Culver V. Ashley 852 Cumberland Bank v. Hall 689 Cumberland etc., Corporation v.Hitch- ings 458 Cumberland Valley Ins. Co. v. Doug- lass 206 Gumming v. Brown 787 Gumming v. Hackley 380, 331 Gumming v. Ince 930, 931 Gummings v. Morris 773 Cummings v. Vorce 635 Gummings V. Williams 171 Cummins v. Agricultural Ins. Co. . . , 197 Cunliife v. Harrison 46 Cunningham v. Bucklin 480 Cunningham v. Jones 374 Cunningham v. Spier 91 Curd V. Davis 154 Curling v. Harding 252 Currie v. Anderson 120 Curtis V. Barnes 844, 862, 863 Curtis V. Brooks 629 Curtis V. Brown 265 Curtis V. Delaware, etc., B. R. Co. . . 188 311 Curtis V. Pox 308 Curtis V. Gaivin 485 Curtis V. Qokey 696, 697, 869 Curtis V. Groat 567, 737 Curtis V. Leavitt 181, 185, 186, 291 717, 718 Curtis V. Mills 613 Curtis V. Riokards 414 Curtiss V. Greenbanks 899 Gurtiss V. Howell 67 Cusack V. Robinson 115 Gushing v. Wyman 873 Cushman v, Jewell 28, 31 Gushman v. Wooster . 868 Cuthbert V. Haley 184 Cnyler v. Cuyler 628 Cuyler v. McCartney 291 Guyler V. Sandford... 168 Daimouth v. Bennett 402, 713 Dain v. WycoflF 343 Dakin v. Dunning 902 Dalrymple v. Hunt 657 Dalton V. Daniels 90 Dalton V. Whittem 635 Dame v. Dame 279, 563 Dambman v. Schulting 830 Dana v. Fiedler 140, 145, 349 Dana v. Munro 208, 209 Dana v. Munson 208 Dane v. Kirk well 674 Dane v. Mallory 434 Danforth v. Culver 798, 810 XXVIU TABLE OF OASES. PAGE. Danfortb v. Dart 59 Danforth v. Walker 120 Daniels v. Clegg 610 Daniels v. Hallenbeck 870, 873 Daniels v. Osborn 143 Daniels v. Potter 454 Dansville, etc., Plankroad Co. v. Hull. 465 Danube and Black Sea, etc., R. R. Co. V. Xenos 729 Darby v. Casaoway 147 Darby v. Harris 635 Dargan v. Waddill 450 Darlington v. McCunn. 270 Dater v. Wellington 868 Daubne v. Huglies 327, 838 Daud V. Kingscote 485 Davenport v. Shants 234 Davenport v. Wheeler 39 Davidson v. Cooper 684, 688 Davidson v. Donadi 559 Davies v. Edwards 819 Davies v. Nicholas 583 Davies v. Vernon 583 Davis V. Adams 18, 49, 346 Davis V. Bechstein , 35 Davis V. BufEum 583 Davis V. Coleman 689 Davis V. Garr 186, 187 Davis V. Getchell 512 Davis V. Gorton 353, 786 Davis V. Grainger 660 Davis V. Hoppock 653 Davis V. Jones 52 Davis V. Justice 646 Davis V. Lottich 639 Davis V. Mann 594 Davis V. Marshall 545 Davis V. Mason 699, 703 Davis V. Meeker 91 Davis V. Newkirk 547 Davis V. Noaks 872 Davis V. Pattison 371 Davis V. Shields 113, 113, 383, 799 Davis V. Sims 623 Davis V. Smith 98, 155, 786 Davis V. Spencer 909 Davis V. Standish 646, 647 Davis V. Tallcot 753 Davis V. Taylor 563 Davis V. Toulmin 761 Davison v. Franklin 945 Davison v. Seymour 704, 711 Dawson v. Powell 562 Day v. Boyd 913 Day V. Brett 440 Day V. Day 457 Day V. Hammond 839, 846, 847 Day V. Leal 735, 737 Day V. JSr. T. Cent. R. R. Co . . . . 348, 253 Day V. Pool 66, 78, 83, 757 Day V. Poughkeepsie Mut. Ins. Co. . 204 Day V. Roth 873 Dayton v. Trull 921 Dean v. Allen 739 Dean v. Branthwaite 545 Dean v. Hewit 810 PAGE. Dearborn v. Cross 680 Deaton v. Tennessee, etc., E. R. Co. . 248 De Begins v. Armistead 716 De Bernardy v. Harding 729 De Bow V. United States 389 De Castro v. Prett 867 Decker v. Decker 282, 483 Decker v. Fisher 477 Decker v. Livingston 826 Decker v. Mathews 561, 563, 574 Dederick v. Leman 877, 913 De Fonclear v. Shottenkirk 17 De Freest v. Bloomingdale. 414 De Forest v. Jewett 603 De Forest v. Strong 166 Defreeze v. Treraper 99 De GraflE v. N. Y. Cent & H. R. R. Co. 603 De Grove v. Metropolitan Ins. Co . . . 194 303 Deiffendorff v. Gage 765 Delacroix v. Bulkley 679, 680, 905 Delamater v. Miller 705 Delano v. Blake 664, 667 Delano v. Curtis 583, 585 Delano v. Rawson 761 De Lavallette v. Wendt 140, 785 Delaware Bank v. Jervis. . . 100, 101, 910 Del., etc., R. R. Co. v. Kellogg 589 De Long v. Stanton 842, 84:! Demarest v. Darg 743 Demeyer v. Legg 937 Demiug v. Foster 91 De Mott V. Hagerman 63 Demott V. McMullen 323 Dempsey v. Tylee 937, 939 Dench v. Walker 574 Denick v. Hubbard 688 Dennett v. Grover 489 Dennett v. Short 898 Denning v. Roome 457 Dennis v. Clark 342 Dennison v. Carnahan 652 Dennyv. Smith 790 Den's Estate 154 Denys v. Shuckburgh 787 De Peyster v. Clarkson 150 De Pierres v. Thorn 786 Deraismes v. Merchants' Mut. Ins. Co. 211 De Rider v. McKnight 14, 36, 54 Dering v. Earl of Winchelsea 385 De Santes v. Searle 653 Des Artes v. Leggett 139, 898 Deshou v. Bigelow 33 Despard v. Walbridge , 949 Deutsch V. Eeilly 551 Devaux v. Connolly 401 Devendorf v. Beardsley 209, 220 Devlin V. Brady 711 Devlin v. O'Neill 3(1 Devlin v. Woodgate 269 Devoe v. Brandt 57, 58, 59 De Voss V. Johnson 823, 830 Dew v. Parsons 400 Dewey v. Derby 831 Dewey v. Erie Borough 24 Dewey v. Reed 689 TABLE or CASES. XXIX PAGE. Dewitt V. Brisbane 719 De Witt V. Morris 644 De Wolfe V. Johnson 179 Dexter v. Adams 440 Dexter V. Bevins 15, 16 Dexter v Broat 736 Dexter v. Clark 749 Dexter v. Norton 134 Dexter, etc., Plankroad Co. v. Allen . 465 Dey V. Dox 139 Deyo V. Stewart 501 Deyo's Executors v. Jones' Executors. 798 Dezell V Odell 556, 939 De Zeng v. Bailey 837 Diblee v Best 961 Dibble v. Corbett 40, 347 Dibble v Hatbaway 463 Dickey v. Grant 589 Dickerman v. Abrams 313 Dickerman v. Lord 398 Dickinson v. City of Worcester 524 Dickinson v. Edwards 138, 185 Dickinson v. Shee 886 Dickson v. Wright 913 Didier v. Davidson 791 DiefendorfiF V. Gage 100, 657 Diedrick v. Bichley 837, 839 Dieker v. Hass 341 Diercks v. Kennedy 945 Dietrich v. Mayor, etc., of New York 395 Dike V. Erie R. R. Co 138 Dill V Bowen 73 Dillaye v. Parks 657 Dillenback v. Jerome 558 Diller v. Johnson 398 Dillon V. Anderson 783 Dingens v. Clancy 814, 316, 317 Dininny v. Fay 433 Dinkenspeil v. Franklin 945 Disborough v. Neilsou 14, 46 Disbrow v. Tenbroeck 560 Dist. Bank v. Fairman, etc. Co 686 D'lvernois v. Leavitt 294 Divine v. McCormick 98 Dixv. VanWyck 174, 178, 181 Dixon V. Caldwell 561 Dixon V.Clark 889, 893 Dixon V. Clow 473 Dixon V. Frazee 269 Dixon V. Frisbee 251 Dixon V. Hurrell 331 Dobbins v. Higgins 154 Dobson V. Coliis 251 Docket V. Voyel 383 Dodge V. Barnes 43 Dodge V. Crandall 680 Dodge V. Fearey 899 Dodworth v. Jones 635 Doe V. Brown 173, 188 Doev.Gooch 173, 188 Doe d. Grantley v. Butcher 731 Doe d. Marquis of Anglesea v. Church Wardens of Rugeley 731 Doe V. Vallejo 149 Doke V. James 859 Dolan V. Mayor of New York 373 PAGE. Dole V. Moulton , 438 Dolfinger v. Fishback 587 Doll V. Earl ;j8ii Dolson V. Saxton 433, 444 Domestic Sewing .Mach. Co. v. An- derson 3 Dominick v. Michael 667 Donati v. Broomhead. ; ] 07 Donovan v. Wilson . . 127 Doolin V. Ward 713 Doolittle V. Doolittle 434 Doolittle V. Naylor 244 Dorwin v. Potter 759, 766 Doty V. Brown... 743, 743, 745, 748, 753 Doty V. Miller 364 Doty V. Wilson 383 Douglass V. Forrest 773 Douglass V. Holme 414 Douglass V. Howland. 243 Douglas V. Patrick 883 , 886 Dougall V. Walling 404 Douglass V. Wells 937 Douglass V. White 914 Dow V. Clark 338 Dow V. Way 286 Dowling V. McKenny 283 Downer v. Eggleston 767 Downer V. Thompson 15, 45, 101 Downes v. Phoenix Bank 884 Downes v. Richardson 690 Downing v, O'Brien 320 Downs V. Ross 23, 126 Dows V. Dennistoun 38 Dows V. Kidder 35 Dows V. Perrin 34, 63 Dows V. Morewood 936 Dox V. Dey 129 Doyle V. Sharp 551 Doyle V. St. James Church 141 Doyley v. Burton 852 Drake v. Cockroft 653 Drake v. Flewellen 395 Drake v. Rogers 457 Drake v. Wakefield 641, 642 Drake v. Wells 44 Draper v. Jones 21, 130 Draper v. Snow 332, 344, 268 Draper v. Sweet 88 Draper v. Trescott 176 Draper v. Stouvenal 308^ SIO Dresser v. Ainsworth 100 Dresser v. Dresser 255, 256, 781 Drew V. Sixth Ave. R. R. Co. . . 596, 597 Driggs V. Dwight 766 Drinkwater v. Goodwin 912 Driscoll V. Place 436 Driscoll V. West Bradley, etc., Manuf . Co 35 Drummond v. Burrell 251, 252 Drury v. Defontaine 706 Dry Dock Bank v. American Life Ins. and Trust Co 158, 169, 170. 172 Dryden v. Kellogg 99, 103 Dubois v. Brewer 469 Dubois V.Kelly 229, 330 Dubois V. Webster 636, 637 XXX TABLE OF CASES. PAGE. Ducker V. Rapp 679 Duell V. Cudlipp 581 Dudden v. Guardians, etc 513 Uuden v. Waitzfelder 920 Dudley v. Abner 31 Dudley v. Boles 608 Dudley V. Danforth 296 Dudley v. Hawley 574, 634 Duff V. Snider 253 Duffauy V. Ferguson 427 Duffee V. Mason 77, 79 Duffy V. 0'Donova,n 654 Duffy V. Wunsch 265 Du Plon V. Powers 324 Duke of Brunswick v. CroWl 357 Duraond's Adm'rs v. Carpenter 406 Dumont V. Duforce 356 Damont v. Smitli 490 Dumont v. Williamson 97 Duncan v. Helm 927 Duncan V. Stone 33 Duncan v. Topliaw 733 Dunckle v. Cocker 550 Dunckle v. Kocker. 616 Dunckel v. Wiles 735 DunUim v. Bower 655, 742, 753, 763 764 Dunham v. Dey 188 Dunham v. Dodge 814 Dunham V. Gould 188 Duuham v. Jackson 886 Dunham V. Mann 53, 346 Dunham v. Pettee 53, 133, 346 Dunham v. Sage 793 Duuham V. Waterman 293, 294, 295 Dunham v. Wyckoff. 632 Duulap V. Gregory 697 Dunlap V. Hunting 538 Dunlap V. Snyder . , 453, 550 Dunn V. Warlters 857 Dunning v. Humphrey 880 Dunning v. Leavitt 863 Dunscomb V. Durtscomb 130 Dunstan v. McAndreWs 346 Durbrow v. McDonald 20, 58 Durell V. Mosher 584 Durgy Cement and Umber Co. v. O'Brien 106 Durling v. Kelly 546 Duryea v. Messinger 823 Dusenbury v. Keiley 787 Dunstan v. McAndrew 64 Dut6her v. Porter 414 Dutchess Co. V. Harding 66 Dutchess of Kingston's Case 741 Dutro V. Wilson 458 Duvergier v. Fellows 696 Dwight V. Peart 833, 938 Dyckman v. Valiente 565 Dye V. Kerr 340, 355 Dye V. Leatherdale 548 Dyer v. Brannock 299 Dyer v. Erie Railway Co 591, 593 Dygart v. Remerschneider 286 Dygert v. Bradley 548 Dydert v Coppernoll 739 PAGE. Dygert v. Schenck 4-'l7, 467 Dykers v. Townsend 245, 284 Dykers v. Woodward 653 EadeB v. Vandeput 437 Eadie v. Slimmon 388, 931 Eagan v. Fitcliburg H. R 587 Eagan v. Tucker 603 Eagle Bank V. Rigney 167 Eagleson v. Shotwell 172 Eakin v. Brown 5D3 Eames v. Sweetser 327 Earing v. Lansingh 607 Earl V. Van Alstyne 618 Earl V. Camp 483, 538 Earl V. De Hart 508 Early v. Garrett 90 Early v Mahon 175 Easley v. Crockford ; 563 Eastabrook v. Smith 919 Eastern R. R. Co. v. Benedict 345 Baston v. Smith , 359 Eastman r. Plumer 910 Eastman v. Sha-w 173 Eastwood V. Kenyon 383 Eaton V. Alger 165, 166 Eaton V. Boston, etc., R. R. Co 824 Eaton V. Wells 900 Eaves v. Henderson 908 Eckstein v. Frank 670 Eddy V. Davidson 266 Eddy V. Harrin 933 Eddyr. O'Hara 888 Eddy V. Smith 391 Eddy V. Stanton 393 Edgar v. Shields 396 Edgecombe v. Rodd 869 Edgell V. Hart 395 Edgerton v. Page 759 Edgerton v. Ross 639 Edgerton v. Thomas 943 Edick V. Crim 633 Edmonson v. Kite 408 Edmondstone v. Thompson 796 Edward v. Trevellick 930 Edwards v. Grume 338 Edwards v. Davis 338 Edwards v. Evans 943 Edwards v. Farmers' Fire Ins. Co 283 Edwards v. Noyes 475 Edwards v. Stewart 752, 764 Edwards v. Varick 823 Efner v. Shaw 861, 868 Ege V. Kille 234 Eggleston V. Boardman 358 Eggleston v. N. Y. & Harlem R. R. Co. 486 Ehle V. Bingham. , 75.3 Ehle V. Judsou 278, 382 Eicholz V. Bannister 98 Eisenlord v. Snyder 319 Eland v. Karr 767 Eider v. Morrison 434 Eldridge v. Mather 657, 658, 766 Elkins V. Parkhurst 898 Ellen V. Topp 906 Ellicott V. Peterson 251 TABLE OF CASES. XXXI PAGK. EUicottville Plankroad Co. v, Buffalo, etc., R. R. Co 478 Elliot V. Cronk's Administrators. . . . 557 Elliott V. Gibbons '. 337 EUis V. Craig 155 Ellis V. Duncan 514 Ellis V. James 105 Ellis V, Lersner 641 Ellis V. Loftus Iron Co 474 EUis V. McCormick 630 EUwood V. Monk 263 Elmendorf v. Harris . . 846, 847, 866, 867 Elston V. Chicago 397 Elsworth V. Fogg 830 Elvesv. Crofts 699, 703 Elwell T. Chamberlin 170, 184, 633 Elwell V. Crocker 308 Elwell V. Martin 338 Elwell V. McQueen 749 Elwell V. Skiddy 757 Elwood V. Diefendorf 379 Blwood V. Smith 641, 643 Ely V. Cook 291. 393 Ely V. Ehle 634, 659 Ely V. McKnight 285 Ely V. Onnsby 118, 123 Ely V. Supervisors of Niagara Co . . . 457 Embrey /. Owen 511 Embury v. Conner 743, 753 Emery V. BaltJi 761, 771 Emery v. Hitchcock 853, 857 Emery v. Smith 251 Emmet v. Hoyt 844, 857 Emmett v. Norton 330 Emmett V. Eeed 313 Emmons v. Scudder 398 Emory V.Addis 645,649, 650 Englander v. Rogers 886 English V. Smocks 163 Ennis v. Harmony Fire Ins. Co . ... 190 Entick V Carrington .- 478 Eppendor v. Brooklyn, etc., R. R. Co. 597 Equitable Life Ins. Soc. v. Cuyler. . . 180 Erben v. Lorillard 253, 380 Erwin v. Downs 946 Erwin v. Lapham 913 Erwin v. Voorhees 631 Esmay v. Fanning 576 Esmond v. Van Benschoten 680, 905 Espy V. Fenton 408 Esterly v. Cole 143 Esterly v. Purdy 166 Estevez v. Purdy 166 Estey V. Boardman 564 Bsty V. Aldrich 357 Etchberry v. Levielle 707 Etberidge v. Osborn 753 Eulrich v. Richter 507 Eustaphieve V. Ketchum 319 European and Australian Royal Mail Co. V. Royal Mail Steam Packet Co. 738 Evans V. Ashley 283 Evans V. Begleys 929 Evans v. Da vies 813 Evans V. Harris 33, 53, 345 Evans v. Merri weather 513 PAGE. Evans V. Po wis 878 Evans v. Verity 415 Evans V. Wells 825 Evans v. Wright 575 Evansville, etc., R. R. Co. v. Wolfe.. 344 594 Everett v. Hall 83 Everett v. London Assur. Co 206 Everett v. Parks 38 Everit v. Strong 773 Everson v. Carpenter 664, 667 Ewing V. Howard 161 Ewer V. Jones 420 Exall V. Partridge 390 Excise Com. v. Taylor 467 Eylesv. Ellis 909 Fabbricotti v. Launitz 756, 765 Fagan V. Scott 486 Fairbanks v. Corlies 633 Fairbanks v. Mothersell 318 Fairbanks v. Wood 783 Fairchild v. Bentley 614, 617 Fairchild v. Case 439 Fairfield Bridge Co. v. Nye 55 Fake v. Eddy 151, 153 Fake v. Smith 100 Fales V. McKeon 103, 350, 351 Falk V, Fletcher 553 Fallon V. Central Park, etc. , R. R. Co. 344 Fallon V. Kelehar 856 Fallsv Belknap 938 Fancher v. Goodman." 69, 74, 389 Fannin v. Anderson 790 Fanning v. Consequa 138 Farley v. Cleveland 263. 364 Farmer v. Walter 934 Farmers', etc.. Bank v. Atkinson 34 Farmers' Bank of Amsterdam v. Blair. 823 Farmers and Mechanics' Nat. Bank V. Hazeltine 63 Farmers and Mechanics' Bank v. Joslyn 174, 175 Farmers and Mechanics' Nat. Bank V. Logan 63 Farmers', etc.. Bank v. Sherman 908 Farmers' Loan, etc., Co. v. Mann... . 143 Farnsworth v. Clark 268 Farrant v. Thompson 560 Farrar v. Chauffetete 388, 575 Farrell v. Farrell 343 Farrell v. Higley 940, 944 Farrington v. Caswell 295 Farrington v. Payne 748 Farron v. Sherwood 375 Fash V. Eavanah 411 Faulkner, Matter of 911 Faulkner v. Brown 554 Faulkner v. Lowe 733 Fausler v. Parsons 431 Favenc v. Bennett 913 Faviell v. Eastern Counties Ry. Co.. . 839 Fay V. Grimsteed 659 Fay V. Muzzey 563 Fay V. Parker 343 Fay V. Prentice 453 xxxu TABLE OF CASES. PAGE. Fazackerly v. McKnight 824 Feamster v. Witlierton 380 Peatlierston v. Hutchinson 696 Featberstonhaugli v. Bradshaw. 409, 410 Feeter v. Heath 139 Feiae v. Wray 105 Fellows V. Commmissioners, etc., of Oneida 166 Fells V. Vestrali 875 Felthain v. England 601 Fenly v. Stewart. Ill Fenn v. Brittleton 560 Fennell v. Ridler 706 Fenton v. Holloway 677 Fenton v. Keed 299 Ferguson v. Carrington 625 Ferguson v. Crawford 436 Ferguson V.Hamilton 183, 184 Ferguson v. Miller 472 Ferdon v. Cunningham 357 Ferlat v. Gojon 300 Feruan v. Doubleday 176 Fernandez v. Merchants' Ins. Co ... . 206 Fero V. Buflfalo & State Lino R. R. Co. 593 Ferrel] v. Maxwell 268 Ferren v. O'Hara 137 Ferrie v. Public Administrator 298 Ferrill v. Brewis 562 Ferris v. Van Buskirk 475 Ferry v. Burchard 934 Ferry v. Stephens 1 Fery v. Williams 729 Fettretch V. McKay 768 Fidler v. Cooper 842, 843 Fiedler v. Cooper 866 Fiedler v. Darrin 161 Field V. Kinnear 89 Field V. Parker 551 Field V. Runk 42, 124 Pifitld V. Elmer 33 Filer v. N. Y, Cent. R. R. Co 310 Filke V. Boston & Albany R. R. Co. . 603 Filkins v. Whyland 104 Filliter v. Phippard 605 Fillmore v. Hortou 582 Filmerv. Debler 839 Finch V. Brook 886 Finch V. Cleveland 366 Finch V. Pinch 286 Finch V. Gridley 368 Finn v. Sleight 937 Piquet V. Allison 564 Pirmin v. Firmin 567 First Baptist Church v. Bigelow. 276, 288 First Baptist Church v. Brooklyn Ins. Co 256 First Baptist Church v. Witherell 470 First Nat Bank V. Crowley 55 First Kat. Bank v. Leach 917 First Nat. Bank v. Owen 172 First Nat. Bank v. Wheeler 394 First Nat. Bank of Toledo v. Shaw. . 62 First Nat. Bank of Utica v. Ballou . . 818 814, 815, 820 Fish V. Cottenet 194 Fish V. Dodge 440, 453, 454 PAGE. Fisb V. Ferris 560, 6U8 Fish V. Folley 747 Fish V. Roseberry 97 Fish V. Skut 610 Fisher v. Bridges 708 Fisher v. Brown 563 Fisher v. Dixon 23 1 Fisher v. Predenhall 65, 67 Fisher v. May 876 Fisher v. Moore 900 Fisher v. N. Y. Cent., etc., R. R. Co. 463 Fisher v. ,Safifer 235 Fisher v. Shattuck 934 Fiske V. Bailey 833 Fiske V. Hibbard 807 Fitch V. Beach 126 Fitch V. Peckham 355 Fitch V. Redding 918 Pitts V.Hall 73 Fitzgerald v. Fitzgerald 305 Fitzgerald v. Fuller 27 Fivaz V. Nichols 695 Flagg V. Dryden 897 Flaherty v. Andrews 483 Flake V. Nuse 887 Flanagan v. Demarest 47 Flanders v. Crolius 269 Fleeman v. McKeon 20, 25, 29 Fleet v. Hegemau 477 Fleetwood v. City of N. T 383 Fleming v. Davis 513 Fleming v. Slocum 631 Flenner v. Flenner 286 Fletcher v. Button 401, 733 Fletcher V. Cole 20 Fletcher v. Harcot 696 Fletcher v. Smith 515 Fletcher v. Updike 793, 799, 810 Plight V. Chaplin . , 159 Flint V. Corbitt 127 Plores V. Johnes 709 Flower v. Lance 388, 384, 398 Flynn V.Allen 97 Plynu V. Hutton .'. . 344 Flynn v. McKeon 389, 680, 905 Fobes V. Shattuck 566, 585 Poden V. Slater 138 Fonda v. Gross 295, 665 Fonda v. Van Home 547, 632, 637 Foot V. Bentley 78, 104 Foot V. Bronson 524 Foot V. Marsh 16 Force v. City of Elizabeth 148 Ford V. Babcock 791 Ford V, Brownell 397 Ford V. Cobb 235, 2:^6 Ford V. Fitchburg R. R. Co 603 Ford V. Smith 443 Ford V. Surget 563 Ford V. Tiley 7-33 Ford V. Williams 941 Fordley's Case 731 Fores v. Johnes 365 Porman v. Forman 148 Forney v. Benedict. 809 Forrest v. Mayor of N. T 388 TABLE OF CASES. XXXIU PAGE. Forsdick v. Collins 574 t'orsyth V. Wells 563 Fort V. Gooding 341 Port V. Whipple 603 Forth V. Pursley 554, 559 Forward v. Pittard 731 Fosdick V. Groff 652 Foshay v. Ferguson 388, 939, 933 Foster v. Conger 313 Foster v. Dawber 910 Foster v. Goddard 610 Foster v. Kirby 396 Foster v. Newbrough 358 Foster v. Newland 945 Foster v. Perkins 543 Foster v. Pettibone 5, 55 Foster v. Stewart 437 Foster v. Taylor 716 Foster V. Trull 875 Fouldes V. Willoughby 573 Fountain v. Draper 649 Fowler v. Abrams 349 Fowler v. Butterly 931 Fowler v. Clearwater 373, 785 Fowler v. Down 543 Fowler v. Hallenbeck 340 Fowler v. Hunt 791 Fowler v. N. t. Indemnity Ins. Co. . 19 191 Fowler v. Moller 393 Fowler v. Seaman 318 Fowler v. Van Surdam 404 Fox V. Jackson 436 Fox V. Sloo 355 Foy V. Talbert 984 Prance's Estate 386 Francis v. Castleman 146 Francis v. Hawkesley 805 Francis v. Herz 390 Francis v. Schoellkopf 447, 450, 458 Franklin v. Schemerhorn 650 Franklin Bank v. Raymond 396 Fraschieris v. Henriques 107 Fraser v. Wyckoflf. 363 Frazer v. Frazer 830 Prazier v. Brown 515 Frazier v. Harvey 63 Frazier v. Hilliard 10 Frazier v. Penn. R. R. Co 603 Frecking v. Holland. . . 306, 313, 313, 316 318, 331, 657 Freegard v. Barnes 435 Freeland v. South worth 335 Freeman v. Adams . . 849, 863 Freeman v. Auld 363 Freeman v. Baspoule 858 Freeman v. Cooke . . . 935, 939, 943, 952 Freeman v. Fulton Fire Ins. Co 190 Freeman v. Harwood 563 Freeman v. Howe 663 Freeman v. Robinson 385 Freeman v. Underwood 554, 568 Freer v. Denton 729 Freiberg v. Branigan 314 French v. Kennedy 150, 154 French v. Irwin 917 E PAGE. French v. New 679 French v. Shotwell 181 French v. White B77 Freethy v. Freethy 311 Frets V. Frets 845 Friar v. Grey 906 Friend v. Harrison 707 Frink v. Green 833 Frink v. Hampden Ins. Co 191 Frisbie v. Lamed 873, 874, 920 Frost V. Duncan 478 Frost V. Frost 911 Frost V. Koon 943 Frost V. Mott 631 Frost V. Plumb 560 Frost V. Saratoga Mut. Ins. Co 198 Frost V. Farr 256 Fry V. Bennett 653 Fryatt v. Sullivan Co 335 Fudickar v. Guardian Mut. Life Ins. Co 867, 868, 869 Fuller V. Acker 634 Fuller V. Jewett 61)3 Fuller V. Lewis 685 Fuller V. Read 765 Fulmer v. Seitz 689 Fultz V. House 907 Furman v. Van Sise 330 Furniss v. Ferguson 97 Qaar v. Louisville B. Co 159 Gaff V. Howyer 120 Gage V. Dauchy 310 Gage V. Hill 755 Gage V. Parker 6, 631, 627 Gagg V. Vetter 586 Gahn v. Niemcewicz 726 Gallagher v. Nichols 783 Gallaher v. Vought 340 Gallup V. Feme 140, 141, 358 Galvin v. Prentice 253, 390 Gambert v. Hart '. . . 861 Gans V.Frank 789, 790 Gans V. St. Paul Ins. Co 198 Ganssly v. Perkins 650 Qarbutt v. Smith 73 Gardner v. Buckbee 753, 753 Gardner v. Finlay 559 Gardner v. Gardner 677 Gardner v. Lane 7 Gardner v. Mayor, etc., of Troy 384 Gardner v. McEwen 631 Gardiner v. Morse 711 Gardinier v. Tubbs 395 Gardner v. Walsh 688 Garfield v. Kirk 358 Garfield V. Paris 130 Garland v. Carlisle 573 Garr v. Gomez 937 Garmon v. Bangor 586 Garr v. Mairet 859 Garrard v. Cottrell 881 Garrard v. Pittsburgh, etc., R. R. Co. 561 Garretsou v. Seaman 818 Garth v. Cooper 177 XXXIV TABLE OF CASES. PAGE. Garwood v. N. Y. C. & H. E. K. Co. . 510 613. 513 Gates V. McKee 342 Gates V. Preston 743, 749, 752 Gattorno v. Adams 40 Gault V. Brown 120 Gaunt V. Fynney 453 Gaussen v. Morton 487 Gay V. Ballou 337 Gautier v. Douglass Manuf. Co. . 66, 93 Gay V. Gardiner 151 Gay V. Waltman 837 Gaylord v. Van Loan 810 Geary v. Physic 113 Geer v. Archer 382 Geere v. Mare 712 Gelen v. Hall 481 Gelhaar v. Ross 434, 557 Geniu v. IngersoU 149 Genin v. Lockwood 918 Geuin V. Tompkins 20, 41 Gent V. Lynch 476 George v. Tallman 6 Gerhard v. Bates 425, 426 German Nat. Bank v. Meadowcroft. . 568 Germond v. People 930, 938 Gerrish v. New Market Manuf. Co. . . 531 Gerwig v. Sitterly 174 Gibbs V. Continental Ins. Co 197, 840 Gibson v. Choteau 781 Gibson V. Dickie 707 Gibson v. Holland 110 Gibson v. Tobey 273, 919 Giddey v. Altman 31 Gidney v. Earl 479, 480 Gifford V. Kollack 340 Gihon V . Levy 658 Gihon V. Stanton 378 Gilbert v. Beach 595 Gilbert V. Cram 768 Gilbert v. Diekerson 565 Gilbert v. N. Y. Cent., etc., R. R. Co. 15 Gilbert v. Port 907 Gil bert v. Hounds 653 Gilchrist v. Brooklyn Grocers' Manuf. Ass'n 416 Giles V. Crosby 375 Giles V. Hart 901 Giles V. O'Toole 766 Gilkesou v. Smith 900 Gillespie V. Forest 531 Gillespie V. Mayor, etc., of New York, 155 Gillespie v. Rosekrants 799 Gillespie v. Torrance. . 658, 758, 761, 763 904 Gillet V. Mason 472 Gillet V. Maynard 353 Gillet V. Roberts 576 Gillet V. Van Rensselaer 141 Gillett V. Averill 161, 170, 171 Gillett V. Balcom 337 Gillett V. Johnson 513 Gilligan v. N. Y. & Harlem R. R 344 Gillies V. Lent 324 Gillisv. Space 366 Gilman T. Andrews 327 PAGE. Gilman v. Hill 115, 134 Gilman v. Moore 897 Gilmore v. Atlantic & pacific R. R. Co. 656 Gilmore v. Ferguson 173 Gilmore v. Newton 561 Qilmour v. Thompson 388 Gilpins V. Consequa 733 Gilson V. North Grey, etc 587 Gilson V. Stewart 737 Ginochio v. Orser 441 Gillett V. Maynard 389 Gillett V. Sweat 689 Girardy v. Richardson 411, 708 Given v. Kellv 665 Glaciua v. BlLck 374, 733, 907 Gladwell v. Steggall 423, 433 Glaholm v. Hays , 906 Glasscott V. Day 887 Glasaner v. Wheaton 576 Gleason v. Clark 360 Glen & Hall Manuf. Co. v. Hall 763 Glen V. Whitaker 38 Glendening v. Sharp 590 Glenn v. Kays 474 Glentworth v. Luther 364 Glidden v. Child 367 Glynn v. Bank of England 830 Globe Marble Mills Co. v. Quinn. 330, 333 Gobell v. Archer 113 Gock V. Keneda 836 Goff V. Kilta 473 Goggerley v. Cuthbert 563 Goddard v. Foster 351 Godard v. Gould 31, 333 Goddard v. Merchant's Bank. . . 394, 396 Godefroy v. Jay 363 Godfrey v. Moser 141 Godts V. Rose 19 Godwin v. CuUey 800 - Qoelet V. Asseler 585 Goelth V. White 69, 73, 280, 390 Goetz V. Foos 264, 366 Goings V. Patten 416 Goit V. National Protection Ins. Co . . 199 204 Golightly V. Jellicoe 843 Goldberg v. Dougherty 736 Goldrich v. Ryan 90 Goldsmith v. Bryant 31 Goldsmith v. Jones 456 Goldsmith v. Obermeir 364 Gomez v. Garr 853, 857 Good V. Cheseman 873 Good V. Curtiss 118 Qoodale v. Tuttle 513, 525 Goodland v. Blewith 883 Goodrich v. Dunbar 738 Goodrich v. Jones 234 Goodrich v. Reynolds 163 Goodrich v. Tracy 915 Goodsell V. Myers 664, 666 Goodwin v. Avery 610 Goodwin v. Francis 113 Goodwin v. Holbrook 43 Goodwin v. Mass. Mut. Life Ins. Co. 198 Qoodwyn v. Cheveley 606 TABLE OF CASES, XXXV PAGE. Goodyear r. Vosburgh 279 Gordon v. Harper 542, 543, 545, 553 559 Gordon v. Hostetter 573 Gorden v. Price 873 Gordon v. Strange 915 Gore V. Gibson 676 Gorham v. Fisher 115 Gorwin v. Carey 554 Gosman v. Cruger 320 Gossler v. Schepler 105 Gottsberger v. Rad way 243 Gould V. Cayuga Co. Nat. Bank 67 Gotwald V. Bernheimer 598 Gough V. Dennis 438 Gould V. Boston Duck Co 518 Gould V. Moring 243, 344 Gould V. Segee 659 Goulding v. Davison 383 Gourdier v. Cormack 476, 600 Grady v. Crook 399 Graem v. Adams 160 Gragg V. Hull 585 Graham v. Chrystal 139 Graham V. Fireman's Ins. Co 195 Graham v. Linden 889 Graham v. Selover 814 Gram V. Cadwell 836 Granite E. R. Co. v. Bacon 685 Granger v. George 787 Grant v. Allen 474 Grant v. Button 758 Grant Co. v. Sels. 399 Granger v. George 797 Grant v. Pendery 357 Grant v. Skinner 29 Gratz V. Gratz 856 Graves v. BrinkerhofF. 6, 395 Graves v. Friend 919, 930 Graves v. McKeon 473 Graves v. Shattuck 608 Graves v. Smith 560 Gray v. Angier 899 Gray v. Barton 1, 877 Gray v. Davis 119 Gray v. Durlaud 339 Gray -v. Fowler 174 Gray V. Gannon 734 Gray v. Green 900 Gray v. Harris 523 Gray v. Hook 710, 717 Gray v. Lessington 73, 664 Gray v. Second Ave. R. R. Co 591 Greasly v. Codling 447 Greely v. Stilson 485 Green v. Amess 796 Green v. Armstrong 384 Green v. Brookins 264 Green v. Cady 481 Green v. Clarke 554, 751 Green v. Da vies 415 Green v. Disbrow 793, 794, 818 Green v. Edick 564 Green v. Green 63, 73, 664, 665 Green v. Greenbank 669 Green v. Harris 256 PAGE. Green v. Kemp 179 Green v. London Gen. Omnibus Co. . 547 Green v. Miller 850 (ireene v. Nunnemacher 450 Green v. Phillips 234 Green v. Pole 844 Green v. Roberts 352, 355 Green v. Seranage 931 Greenbury v. Wilkins 706 Greenby v. Hopkins 153 Greenthal v. Schneider 50 Greenway v. Fisher 563 Greer v. Church 3 Gregg V. Wells 943, 943 Gregory v. Burrall 744 Gregory v. Piper 548 Gregory v. Stryker 55 Gregory v. Thomas 726 Greton v. Smith 410 Grey v. Groennap 857 Gridley v. Gridley..... 861 Gridley v. Rowland 661 Grier v. Sampson 608 GrifBn v. Alsop 583 Griffin v. Bixby 469 Griffin v. Cranston 293 Griffin v. Creppin .- 475 Griffin V. Hampton 911 Griffin V. Marquardt 390 Griffin v. Martin 503, 504 (Griffith V. Beecher 940, 943 Griffith V. McCullum 456 Griffith V. Wells 369, 715 Grippen v. N. Y. Cent. R. R. Co 591 Griesler v. Powers 946 Grizewood v. Blane 13 Groat V.Gill 17 G roate v. Groate 805 Grocers' Bank of New York v. Fitch. 872 Groff V. Griswold 225 Grout V. Knapp 475 Groshon v. Lyon 660 Gross V. Kierski 98 Grosvenor v. Atlantic Fire Ins. Co. . . 658 Grosveuor v. Hunt 865 Grosz V. Jackson 338 Grover v. Buck 282 Grover v, Sholl 522 Grubb's Appeal 143 Grube V. Schultheis 374 Grund v. Van Vleek 547 Grussy V. Schneider 882 Grymes v. Sanders 67 Guardian Mut. Life Ins. Co. v. Ka- shaw 166 Guckenheimer v. Angevine 67, 71 Gurney v. Atlantic & Great Western Ry.Co 757 Guernsey V. Raxford 149, 162, 413 Guest V. Worcester, etc.. By. Co. . . 281 Quggenheimer v. Gieszler 138, 160 Guild V. Baldridge 396 Guild V.Butler 875 Gulick V. Ward 711 Glimmer v. Village of Omro 245 Quun V. Head 149 XX XVI TABLE OF CASES. PAGE. Gurney v. Atlantic, etc., R. E. Co. 66, 93 Gurney v. Kenny 578 Haas V. Damon 573 Hackett v. SmelBley 650 Hadley v. Ayres 141 Haff V. Blossom 851 Hager v. Danforth 489 liagrgart v. Morgan 840 Haggarty v. Palmer 20, 25 Hague V. Porter 38 Hague V. Powers 893 Haigbt Y. Avery 814 Haight V. Badgeley 437, 490, 658 liaight V. Wright 340 Haile v. Lillie 673 Haile v. Nichols 937 Haines v. Tucker 46, 134 Haire v. Baker 753 Haines v. Pearce 919 Haldeman v. Bruckhard 515 Haldenby v. Teeke 901 Hale V. Andrews 784 Hale V. Angel 232 Hale V. Patton 885 Hale V. Russ 690 Haley v. Bannister 337 Haley v. Earle 590, 591 Hall V. Arnold 290 Hall V. Ayer 359 Hall V. Bryan 799 Hall V, Clement 927, 928 Hall V. Conder 90 Hall V. Constant 933 Hall V. Daggett 162 Hall V. Earnest 173 Hall V. Erwin 58 Hall V. Haggart 171 Hall V. Ins. Co. of North America. . . 197 Hall V. Levy 833 Hall V. Luther 937 Hall V. Meriwether 24 HhII t. Naylor 56, 58 Hall V. Pickard 545, 552 Hall V. Pierce 346 Hall V. Eobinson 558, 576 Hall V. Sheehan 834 Hall V. Smith 872 Hall V. Tuttle 633 Hall V. Waterbury 436 Hall V. Western Transp. Co 409 Hall V. Wilson 173 Hallenbeck v. Cochran, 118, 119, 121, 123 Hallenbeck v. Dewitt 620 Hallett V. Norion 369 Hallock V. DeMunn 330 Hallock V. Dominy 551 Hallock v. Losee 795 Hallock V. Eumsey 636 Halsey v. McCormick 508 Halsey V. Reid 783 Halstead V. Seaman 868 Halterline v. Rice 32, 55 Ham V. Mayor 600 Ham V. Van Orden 118 Hambleton v. Vere 437 PAGE. Hamilton v. Caniield 718 Hamilton v. Douglass 311 Hamilton v. Ganyard 48, 49, 50, 97 Hamilton v. Singer Manuf. Co 67 Hamlin v. Dihgman 431 Hammond v. Christie 873 Hammond v. Corbett 340 Hammond v. Happing 174, 175, 187 Hammond v. Pennook 437 Hamunn v. Richardson 97 Hamphouse v. GafEner 484 Hancock v. Bliss 798 Hancock v. Gomez 403 Handaysyde v. Wilson 611 Handley v. Wharton 799 Hanford v. Artcher 295 Hanford v. Higgins. 271 Hanger v. Abbott 734 Hanks v. Naglee 708 Hanmer v. Wilsey 549 Hanna v. Mills 130, 133, 346 Hannah v. Lankford 913 Hansard v. Robinson 888 Hansee v. Pbinney 175 Hanson v. McCue 515 Hanson v. Meyer 19 Hanson v. Towle 798, 809 Harbeck v. Craft 917 Harbeck v. Vanderbilt 910 Hardcastlev. South Yorkshire R'y Co. 448 Hardenburgh v. Lockwood 502, 504 Hardie v. Grant 330 Harding v. Davies 882 flarding v. Edgecumbe 815 Harding v. Tifft 922, 926 Hardmann v. Bowen 291 Hardy v. Innes 854 Harger v. McCullough 165 Harger V. Wilson 173 Hargous v. Ablon 101 Hargous v. Lahens 883, 888 Hargous v. Stone 49, 94, 95, 96 Harkness v. Sears 334 Harlem v. St. Louis, etc., R. R. Co. . 590 Harmon v. Harmon 398 Harman v. Reeve 135 Harmony v. Bingham.. .370, 388. 389, 723 933 Harmon v. Bird 903 Harpell v. Curtis 597, 610 Harper v. Albany Mut. Ins. Co 197 Harper v. Fairley 811, 813 Harper v. Godsell , 1 Harper v. Harper 256 Harper V. Leal 951 Harper v. N. Y. City Ins. Co 197 Harriman v. Harriman 878 Harrington v. Higham 854 Harrington v. Snyder 756 Harris v. Bernard 757, 763 Harris v. Curet 776 Harris v. Curnow 858 Harris v. Frink. . . .379, 280, 390, 483, 483 Harris v. Hammond 755, 765 Harris v. Harris 753 Harris v. Huntback 376 TABLE OF CASES. XXX Vll PAGE. Harris v. Jex 883, 893 , Harris v. Morris 330 Harris v. Mulock 887, 888 Harris v. Pratt 105, 107 Harris v. Rathbun 907 Harris v. Reynolds 840 Harris v. Roof's Ex'rs 703 Harris v. Runnels 716 Harris v. Story 6ii0, 914 Harris v. Thompson 446 Harris v. Wilson 843 Harriss v. Williams 134 Harrison v. Blackburn 475 Harrison v. Brooks 451 Harrison V. Close 829, 878 Harrison v. Elvin 113 Harrison v. Hannell 177 Harrison v. Luke 1 Harrison v. Marshall 706 Harrison v. Wilkin 937 Harrower v. Ritson. . , 456 Hart V. Aldridge 437 Hart V. Bush Ii7 Hartv. Clouser 639 Hart V. Fitzgerald 639 Hartv. Hess. 353 Hart V. Lanman 840 Hart V. Mayor, etc., of Albany 457 Hartv. Mills 34, 46, 134 Hartv. Nash 819 Harter v. Morris 361 Hartfield v. Roper 344, 594 Hartford Sorghum Manuf. Co. v. Brush 24 Hartley V. Cummings 698 Hartley v. Harriman 613 Hartley v. Harrison 179 Hartley v. Tatham 889 Hartman v. Proudfit 375 Hartness v. Thompson 673 Hartsliorn v. Brace 947 Harttman v. Tegart 339 Harvey v. Archbold 164 Harvey V. Cherry 191, 193 Harvey v. Dewoody 457 Harvey v. Dunlap 548, 610 Harvey V. Harris 7 Harvey v. Stevens. 110 Harwood v. Benton 616 Hasbrouck v. Loundsbury 28, 75 Hasbrouck v. Weaver 333, 464 Haskin v. N. Y. Cent. & H. R. R. R. Co 603 Haslem v. Lockwood 563, 564 Haasam v. Griffin , 438, 441 Hastings v. Westchester Fire Ins. Co. 191 Hastings v. Whitley 699 Hatch V. Benton 737 Hatch V. Fogerty 360 Hatcher v. Rocheleau 736 Hathaway v. Bennett 11 Hathaway v. Howell 545 Hathorne v. Hodges 69 Hatop V. Neidig 293 Hatzell V. Barber 949 Hanse v. Cowing. . . 455 PAGE. Havemeyer v. Cunningham 13, 346 Haven v. Winnisemmet Co 846 Havens v. Patterson 63 Havens v. Foster 395 Hawes v. Lawrence 40 Hawkins v, Hoifman 683 Hawkins v. Pemberton 77, 78, 83 Hawks V. Hincheliflf 735 Hawkins v. Stark 910 Hawks v. Weaver 163 Hawks v. Winans 591 Hawley v. Beverly 381 Hawley v. Cramer 713 Hawley v. Foot 873, 877 Hawley v. ^Griswold 985 Hawley v. Keeler 134 Hawley v. Northern Cent. Ry. Co... 603 Hay V, Cohoes Co 474 Hay V. Star Fire Ins. Co 199 Hay craft v. Creasy 438 Hayden v. Demets 17, 21, 36, 53 Hay dock v. Coope 39 1 Haydock v. Stow 275 Haydon V. Williams 798, 799, 808 Hayes v. Bowman 509 Hayes v. Huflfstater 398 Hayes v. Miller 481, 587 Hayes v. People 299 Hayes v. Phelan 646 Hayes v. Boose 753 Hayes V. Waldron 518 Hay nes V. Hart 68, 390 Haynesv. Rudd 388, 403, 713 Hays V. Hathorn 773 Hays V Hays 839 Hays V. Phelps 392 Hays V. Stone 919 Hay ward v. Bennett 7i!d Haywood v. Jones 659 Hazeltine v. Smith 868 Hazelton v. Week 483 Head v. Stevens 903 Heald v. Carey 573 Hearn v. Hiehl 873 Hearne v. Keen 383 Heath V. Mahoney 665 Heath v. Powers 911 Heath v. Randall 488 Heath v. Westervelt 558 Hebert v. Lege 477 Heelas v. Slevin 887 Heeney v. Heaney 484 Heermance v. Taylor 115 Heffner v. Wenrich 687 Hefley v. Baker 475 Ilegan v. Eighth Ave. R. R. Co. 608, 609 Heidenheimer v. Mayor 165 Heiman v. Schroeder 154 Heinckley v. Earle 63 Heine v. Anderson 53 Helbutt v. Hickson 93 Hellingsv. Shaw 779 Hellman v. Strauss 381 , 389 Helphrey v. Chicago, etc., R. R. Co. 889 Helps V. Winterbottom 781 Helshaw v. Langley 113 XXXVUl TABLE OF CASES. PAGE. Hemmens v. Bentley 650 Hemmenway v. Mullock 683 Hemmenway v. Stone 689 Hemming v. Trenery 684, 691 Henderson V. Eason 405 Hendricks v. Decker 554, 657, 741 Hendrickson v. Beers 404 Henfree v. Bromley 684, 691 Henley v. Soper 839 Henman v. Dickinson 686 Hennequin v. Butterfield 369 Henuequin v. Naylor 57 Hennequin v. Sands 31 Henry v. Betts 338 Henry v. Daley 761 Henry v. Golduay 660 Henry v. Henry 835 Hen 1 y v. Lowell 550, 551 Henry v. Marvin 558 Henry v. Eoot 663, 665, 666 Henry v. Staten Island Ey. Co. . 601, 603 Hensler v. Jefrin 334 Hepburn v. Griswold 893 Herbert v. Turball 663 Herkimer v. Rice 193 Herkimer Co. Mut. Ins. Co. v. Fuller. 317 Herman v. Adriatic Fire Ins. Co. . , . 196 Herrick v. Carter. . . .' 3 Herrick v. Wolverton 146 , 785 Herring v. Hoppock 37, 38, 547 Herring v. Sawyer 931 Hervey v. Nourse 587 Herring v. Willard 30 Herrington v. Robertson 318 Herrman v. Merchants' Ins. Co 196 Hersey v. Benedict 58, 621 Hertzog v. Hertzog 351 Hesketh v. Fawcett 880 Hess V. Fox 284 HetBeld v. Cent. R. R. Co 485 Henshaw v. Robins 83 Hewes v. Jordan. 114, 131 Hewett V. Bronson 355, 386 Hewett V. Warren 669 Hewett V. Miller 346 Hewett V. Watkins 503 Hewlett V. Owens 564 Hexter v. Knox 943 Hibbard v. Stewart 549, 942 Hibblewhite V. McMaring 11 Hickey v. Burlington Ins. Co 306 Hickling v. Hardey 923 Hickook V. Hickock 407 Hick, In re 850 Hicks V. Whitmore 130 Hidden v. Waldo 378 Hier v. Grant 655 Higgenbotham v. Lowenbeiu 434 Higgins V. Breen 353 Higgius V. Hopkins 351 Higgins V. Mayer 753 Higgins V. Murray. 33, 345 Higgins V. Newtown, etc., R. R. Co. . 375 Higgins V. Reynolds 480 Higgins V. Turner 949 High V, WUson 552 PAGE. Hishmoro v. Primrose 414 Hillv. Beebe 736, 918 Hill V. Berry 646 Hillv Covell 581, S84 Hillv. Gray 629 Hillv. Hanford. 341 Hillv. Hill 487, 936 Hill V. Meeker 163 Hill V. Meyers 283 Hill V. North , 91 Hillv. Reed 308, 313 Hill V. RobiBon 569 Hill V. Thorn 853 Hillv. Winsor 589 Hills V. Lynch 38 Hille V. Mesnard 879 Hills v.Place 899 Hills V. Sughrue 723 Hills V. Varet 645 Hillard V. Austin 370 Hillier v. Allegheny Co. Ins. Co 206 Himrod Furnace Co. v. Cleveland, etc., R. R. Co Ill Hinckley v. Baxter 563 Hinckley v. Emerson 550 Hinde v. Whitehouse 53 Hinds V. Barton 588 Hinkley v. Kersting 91 Hinsdale V. White 410 Hintermister v. First Nat. Bank 463 Hintley v. Westmeath 330 Hinton v. Locke 90 Hiort V. Bott 570. 573 Hirsoh v. Trainer 674 Hirschorn v. Canney 33 Hisoock V. Harris 853, 853, 854, 856 858, 861, 869 Hissong V. Hart 444 Hitchcock V. Cadmus 893 Hitchcock V. Coker 698, 699 Hitchcock V. Covill 65 Hitchman v. Walton 234 Hoag V. Parr 885, 891 Hoag V. Vaaderburg Co 451 Hobart v. Hackett 561 Hochster v. De La Tour. . . 723, 728, 729 Hodge V. Sexton 35, 405 Hodges V. Hunt 666 Hodges V. Raymond 523 Hodges V. Richmond Manuf . Co 356 Hodges V. Shuler 946 Hodgkinson v. Fletcher 330 Hodson V. Wilkins 696 Hoe V. Sanborn 66, 96 Hoes V. Van Hoesen 833, 835, 830 Hoffman v. Armstrong 469 Hoffman v. Carow 33, 60 Hoffman v. Dunlap 836, 839 Hoffman v. N. Y. Cent. & H. R. R R. Co 593 Hoffman v. Union Ferry Co 591 Hofnagle v. N. T. Cent., etc., R. R. Co 601 Hogan V. Brooklyn 943 Hogwood V. Edwards 474 Hogsett V. Ellis 281 TABLE OF CASES. XXXIX PAGE. Holbrook v. Wight 579, 583 Holcroft V. Barber 354 Holden v. Dakin 89, 90 Holker v. Parker 839 HbUaday v. Marsh 491, 503 Holland v. Hodgson 237 Holley V. Townsend 363 Holliday V. Morgan 80 Hollingsworth v. Napier 53, 106 Hollingsworth v. Swedenborg 340 Hollins V. Fowler 573 Holman V. Dord 8, 81 Holman v. Johnson 095 Holme V. Guppy Holmes v. Anderson 659 Holmes V. Bell 737 Holmes v. He Camp 413, 921 Holmes v. Holmes 364, 902 Holmes v. Mackrell 800, 806 Holmes v. Mather 610 Holmes v. Nuncaster 552 Holmes v. Eankiu 142 Holmes v. Tremper, 230 Holmes v. Weed 379 Holmes v. Wetmore 171 Holmes v. Williams 182, 184 Holmes v. Wilson 455 Holtzman v. Castleman 337 Homan v. Liswell 783 Hone V.Allen 210 Hone V. Ballin 210 Hone V. Boyd 210 Hone V. Folger 310 Honegisberger v. Second Ave. R. R. Co 344 Honliston v. Smyth 328 Honsee v. Hammond 450, 518 Hood V. Manhattan Fire Ins. Co 205 Hook V. Pratt 708 Hooper v. Hudson River Fire Ins. Co. 193 Hooper v. Stevens 819 Hooper v. Strasburger 930 Hoover v. Peters 98 Hope Ins. Co. v. Reed 808 Hopf V. Myers 747 Hopkins v. Lane ... 773 Hopkins v. Logan 383 Hopkins v. Tanqueray 77, 83 Hopkins v. WyckoflF 715 Hopping V. Quinn 361 Horn V. Bray 368 Horn V. Cole 940 Hornby v. Cramer 883 Hornby v. Lacy 913 Horner v. Graves 699 Horner v. Wood 765, 766 Homfager v. Homfager 660 Horton v. Davis 944 HoTton V. Green. ... 77 Horton v. Hendershot 433, 434, 551 556, 557, 558 Horton v. Morgan 363 Hosford V. Nichols 138, 185 Hotchkiss V. Gage. 89, 90 Hotchkiss V. Le Roy 360 Hovey v. American Mut. Ins. Co 201 PAGE. Howard v. Borden 50 Howard v. Chapman 912 Howard v. Daly 739, 783 Howard v. Farley 149 Howard V. Hoey 66, 96 Howard v. Holbrook 243 Howard v. Rice 912 Howard v. Sexton 847 Howard v. Shepherd 422 Houbie v. Volkeuing 885 Hough V. Horsey 179 Houghton V. Houghton 866 Houghton V. Swarthout 443 Hounsell v. Smyth 448 House V. House 237 Houston V. Laffee 486 Houston V. Pollard 853 Houston V. Shindler 119 Hovey v. Smith 238 Howe V. Buffalo, etc., R. R. Co 381 Howe Sewing Machine Co. v. Haupt. 583 Howell V. Adams 783 Howell V. Kroose 581, G'dH Howell V. Mills 713 Howell V. McCoy 450, 518, 520 Howell V. Young. , 787 Howes V. Woodruff 796 Howland v. Cuykendall 785 Howland v. Edmonds 216, 785 Howland v. Howland 31 1 Howland v. Myer 311 Howland v. Rench 923 Howlett V. Howlett 824, 825, 830 Hoyt V. Byrnes 883 Hoyt V. Hall 70 Hoyt V. Gelston 476, 542 Hoyt V. Hoyt 834 Hoyt V. Sprague 891 Hoyt V. Tan Alstyne 543 Hubbard v. Bliss 32 Hubbard v. Briggs 426 Hubbard v. Chenango Bank 890 Hubbard v . Moore 357 Hubbard v. Williamson 685 Hubbell V. Meigs 428 Hubbell V. Rochester 479 Huckins v. People's Ins. Co 206 Hudler v. Golden 636 Hudson V. Johnson 913 Hudson V. Roberts 613 Huebner v. Roosevelt , . 794 Hughes V. Alexander 7.^3 Hughes V. Wheeler . . 377, 879, 918. 921 Hulbert v. Nichol 820, 821 Hurlbut V. Carter 220 Hull V. Corcoran 560 Hull V. Peters 884 Hulsman v. Bleaching Co 519 Hultz V. Gibbs 328 Humphrey v. Humphrey 933 Humphreys v. Guillow 689 Humphreys v. Persons 323 Hungerford's Bank v. Dodge 178 H\int,Sk parte 337 Hunt V. Amidon 379 Hunt V. Bate 382 xl TABLE OF CASES. PAGE. Hunt V. Hudson River Fire Ins. Co. . 191 Hunt V. Hunt 334 Hunt V. Johnson 307, 308 Hunt V. Kaae 584 Hunt V. Nevers 908 Hunt V. Pratt 543 Hunt V. Rich 479 Hunt V. Singer 67 Hunt V. Wyman 1, 34 Hunter v. Gibbons 797 Hunter v. Hudson River I. & M. Co. . 55 Hunter v. Le Coiite 885 Hunter V. Osterhoudt 936 Hunter v. Welch 406 Hunter v. Wetsell 131, 133 Huntington v. Babbitt 809 Huntington v. Finch 689 Huntington v. Havens 937 Huntby v. Beecher 313, 214 Huntress v. Patten 178 Hurd V. Green 378 Hurd V. Hunt 167 Hurd V. Miller 408, 473 Hurd V. West , 4, 476, 543 Hurff V. Hires 16 Hurlbert V. Nichol 811 Hurlburt v. Post 773 Hurst V. Bambridge 856 Hurst V. Orbell 401 Hurst V. Parker 811 Husted V. Mathes 318 Hua.sey v. Sibley 930 Huston v. Stringham 179 Hustons v. Winans 829 Hutchings v. Miner 363 Hutchinga v. Hunger 38 Hutchins v. Masterson 333 Hutchins v. Shaw 468 Hutchinson v. Bell 934 Hutchinson v. Brand 433, 443 Hutchinson v. Ford 11 Hutchinson v. Hutchinson 256 Hutmaker v. Harris 1 Hyatt V. Esmond 314, 216, 318 Hyatt V. Wait 145, 314 Hyatt V. Whipple 216, 216 Hyde v. Cookson 5, 55, 559 Hyde v. Goodnow 185, 187 Hyde v. Johnson 809 Hyde v, Lathrop 18 Hyde v. Stone 146, 564 Hyland v. Sherman 97 Hynds v. Schenectady Co. Mut. Ins. Co 196 Hynds v. Shultz 520 Hynes v. McDermott 299 m. Cent. R. R. Co. v. Graybill 449 Illinois, etc. , R. R. Co. v. Hetherington 593 Ilott V. Wilkes 549, 550 Imbert v. Hallock 433, 550 Imlay v. Wikoflf 857 Imperial Gas-light Co. v. Broadbent. 445 Imperial Gas Co. v. London Qas Co . 797 Independent Ins. Co. v. Agnew 206 Indianapolis, etc., R. R. Co. v. Petty. 506 PAGE. Indianapolis, Peru & Chicago R. R. Co. V, Tyng 437, 630 Ingalla V. Lee 170 IngersoU v. Skinner 46S Ingraham v. Baldwin 674 Ingraham v. Gilbert 338, 383, 871 Ingraham v. Hammond 640 Inman v. Griswold 914 Inman v. Western Fire Ins. Co. 301, 203 Innes v. Stephenson 911 Inslee v. Hampton 738 Inslee v. Lane 109 Insurance Co. v. Boon 207 Insurance Co. v. Norton 198 Ireland v. Horsemen 553, 573 Ireland v. Johnson 124 Irvine v. Milbank , 828 Irvine v. Stone 135 Irvine v. Wood 454 Irving V. Excelsior Fire Ins. Co. 193, 303 Irving V. Thomas 93 Irving V. Wilson 400 Isaacs V. Beth Hamedash Soc . . 838, 851 Isaacs V. N. Y. Plaster Works. . 44. 133 348 Isherwood v. Whitmore 896 Isle Royal Mining Co. v. Hertin 567 Ives v. Goddard 737 Ives V. Jones 696 Ives V. Van Epps. 657, 757, 758, 760, 763 Jacks V. Nichols 168, 176 Jackson v. Ambler. . . . 853, 856, 857, 861 863, 867 Jackson v. Bartlett 439, 912 Jackson v. Bradford 938 Jackson v. Brinkerhoff 939 Jackson v, Brookins 646, 649 Jackson v. Burchin 665, 667 Jackson V. Bull 938 Jackson v. Cad well 297 Jackson v. Campbell 149 Jackson v. Carpenter 665, 667 Jackson v. Covert 126 Jackson v. Crafts 883 Jackson v. De Long 856 Jackson v. Dement 936, 938 Jackson V. Fassitt 183, 184 Jackson v. Gurnsey 297 Jackson v. Harder 476 Jackson v. Harper 948 Jackson v. Hasbrouck 352 Jackson v. Hazen 476 Jackson v. Hoffman 935 Jackson v. Hubble 938 Jackson v. Johnson 927 Jackson v. King 631 Jackson v. Malin 691 Jackson v. Murray 938 Jackson v. Myers 477 Jackson v. Osborne 693 Jackson v. Packard 176 Jackson v. Parkhurst 936 Jackson v. Roberts 215, 219 Jackson v. Shaffer 736, 737 Jackson v. Spear 949 TABLE OF OASES. xli PAGE. Jackson v. Stevens 936 Jackson v. Slackhouse. 833, 824, 838, 830 Jackson v. Van Slyke 208 J ackson v. Wheeler 936 Jackson v. Willaon 937 Jackson v. Wiuue 399, 300 Jackson V. Wright 938 Jacob V. Emmet 151 Jacobs V. AUard 518 Jacobs V. Allen 290 Jacobs V. Morange 383 Jaeger v. Kelley 396 J ames v. Griffin 107 J amea v. Isaacs 870 James v. Le Roy 437 James v. Muir 110 James v. Patten 113, 283, 800 Jamison v. Cornell 943 Jamieson v. Millemann 486, 487 Jamison v. Ludlow 396 Jauvrin v. Town of Exter 399 Jaques V. Public Administrator 399 Jarrett v. Kennedy 425 Jarvis v. Driggs 742 Jassoy V. Horn 144 Jaycox V. Caldwell 307 Jencks v. Alexander 937 Jelliet V. Broad 697 Jenkins v. Getting 331 Jenkins v. Gillespie 839 Jenkins v. Hooker 703 Jenkins v. Tucker 386 Jenks V. Robertson 680 Jenness v. Wendell 134 Jennings v. Chenango Co. Mut. Ins. Co 197 Jennings v. Brown 708 Jennings v. Broughtou 67 Jennings v. Jones 935 Jennings v. Mendenhall 895 Jennings v. Rundall 669 Jennings v. Throgmorton 411, 708 Jervoise v. Silk 336 Jessup V. Hulse ' 396 Jewell V. Harrington 939 Jeremy v. Goochman 383 Jewell V. Wright 138, 185 Jewett V. Miller 940 Joest V. Williams 677 Johns V. Bailey 356 Johns V. Johns 300 Johnson v. Bank of U. S 689, 690 Johnson v. Berkshire Ins. Co 306 Johnson v. Browne 3 Johnson v. Buck 245 Johnson v. Bush 719 Johnson v. Carnly 631, 644 Johnson v. Cattle 117 Johnson v. Couillard 683 Johnson v. Comstock 551, 884 Johnson v. De Peyster 733 Johnson v. Elwood 633 Johnson v. Gibson 335 Johnson v. Gilbert 130, 372, 919 Johnson v. Knapp 264 Johnson v. Luxton 736 F. PAGE. Johnson v. May 408 Johnson v. Miln 344, 760 Johnson v. McQinness 397 Johnson v. McLane 24 Johnson v. Monell 57 Johnson v. Oppenheim 410 Johnson v. Parmely 937 Johnson v. Powers 561 Johnson v. Silsbee 341 Johnson v. Smith 744, 751, 753 Johnson v. Titus 903 Johnson v. Weed 919 Johnston v. Allen 831 Johnston v. Brannan 151 Johnston v. Columbia Ins. Co . . 900, 903 Johnston v. Peugnett 321, 323 Johnston v. Sumner 330 Johnston v. West of Scotland Ins. Co. 307 Johnstown Cheese Manuf. Co. v. Veghte 515, 516 Jolly V. Rees 330 Jones V. Barkley 729 Jones V. Barlow 386 Jones V. Bradner 38 Jones V. Broadhurst 870 Jones V. Bullitt 914 Jones V. Caswell 713 Jones V. Cook 441 Jones V. Cuyler 857 Jones V. Earl 109 Jones V. Estis 463 Jones V. Fort 563 Jones V. Hake 173 Jones V. Jincey 353, 355 Jones V. Judd 723 Jones V. Just , 91 Jones V. Mechanics' Bank 117 Jones V. Murray 98 Jones y. Perry 613 Jones V. Reddick 399 Jones V. Ryde 915 Jones V. Savage 931 Jones V. Seligman 506 Jones V. Sheldon 496 Jones V. Walker 315, 378 Jones V. Wasson 93 Jones V. Welwood. 841, 843, 853, 856, 866 Jones V. Woods 355 Jordan v. Hyatt 847, 863, 867 Jordan v. National Shoe and lieather Bank 771 Joselyn v. Joselyn 405 Joalin V. Cowee 74 Jowers V. Blandy 33 Joyce V. Adams 31, 23 Jube V. Brooklyn Fire Ins. Co. . 197, 203 Judd V. Ensign 883 Judd V. Dennison 757 Judd V. Fox 633, 637 Judge V. Cox 613 Judsou V. Cook 546 Judson V. Gray 371, 372 Judson V. Wass 733 Junction R. R. Co. v. B'k of Ashland, 172 Justice V. Lang 112 Jutte V. Hughes 458, 524 xlii TABLE OF CASES. PAGE. Kain v. Fisher .... 237 Kain v. Old 78 Kain v. Smitli 604 Kane, Matter of 336 Kane v. Fond du Lac 838 Kane v. Johnston 715 Kane v. Smith 143 Kaus. Pac. Ky. Co. v. Wyandotte Co. 398 Kaufman v. (Jriesemer 534 Kavanaugh v. Day 139 Kay V. Whittaker 17S Kaason v. People 750 Kayser v. Sicliel 65, 130 Kearney ^ Fitzgerald 649, 650 Keating v. N. Y. Cent., etc., R. R. Co. 597 Keay v. New Orleans Canal Co 457 Keeler v. Bartine 838 Keeler v. Davis , 940 Keeler V. Field 20, 25 Keeler v. Neal 873 Keeler v. Salisbury 680, 833 Keeler v. Vandervere 16, 135 Keeney v. Home Ins. Co 304 Keep V. Kaufman 147 Keep V. Keep 839, 863 Keese v. N. Y. Cent. R. R. Co 591 Keffe V. Milwaukee, etc., R. R. Co.. . 594 Kein v. Tapper 46, 135 Keith V. Pinkham 597 Keller V. Phillips 337 Kellerman v. Arnold 650 Kelley v. Upton 12, 15, 18, 133, 346 Kellogg V. Curtis 947 Kellogg V. Gilbert 439, 913 Kellogg V. Hickok 148, 163 Kellogg v. Richards 873, 914 Kellogg V. Slawson 290, 295 Kellor V. Philips 327 Kelly V. Commonwealth Ins. Co. of Penn 194 Kelly V. Mayor of N. Y 599, 600 Kelly V. Solari 394 Kelly V. West 881, 884, 899 Kelsey v. Darrow 847 Kelsey v. Durkee 331 Kelsey V. Griswold 583, 787 Kelso V. Tabor 333 Kelty V. Long 317 Kemp V. Balls 870 Kemp V. Neville 431 Kendrick v. Forney 380 Kennedy v. Brown 415 Kennerly v. Nash 145 Kennett V. Mil bank 803, 809 Kenney v. Planer 488 Kenniston v. Merrimack Co. Ins. Co. 206 Kenny v. First Nat. Bank of Albany, 916 Kenny v. People 678 Kent V. Hudson River R. R. Co 740 Kentv. Kent 255, 256 Kent V. Reynolds 823 Kent v. Walton 173, 184 Kenyon v. N. T., etc., R. R. Co 594 Kercheis v. Schloss 293 Kermeyer v. Newby 917 Kerrv.Kerr 224 PAGE. Kerr v. Mount 435 Kershaw v. Cox 680 Ketohum v. Barber 169 Keteltas v. Fleet 65 Keyser v. Harbeck 59, 60, 584 Keyser v. Waterbury 638 Kidd V. Belden 27, 950 Kiddell v. Burnard 80 Kidder v. Hunt 253 Kiernan v. Rocheleau 65 Kiersted v. Orange & Alexandria R. R. Co 408, 409 Kilgore v. Wood 565 Kill V. Hollister 839, 840 Killmore v. Hewlett 128, 279 Killough V. Alford 916 Kilner V. O'Brien 160 Kimball v. Brown 795 Kimball v. Keyes 831 Kimberly v. Patchin 16, 53 Kincaid v. Archibald 799, 806 Kincaid v. Brunswick 883 Kincaid v. Logue 479 Kincannon v. Carroll 690 King y. Bowen 853 King V. Brown 279, 280, 719 King V. Despard 370 King V. Finch 883 King V. Fitch 56, 58, 71 King V. Fuller 737 King V. Haley 645 King V. Hoare 660 King V. Macclesfield 353 King V. Morris, etc., E. R. Co 445 King V. N. Y. Cent. , etc., R. R. Co. . . 599 Kingham v. Robins 901 Kingaley v. Balcome 268 Kingsley v. City of Brooklyn. . . 374, 728 Kingsley v. Vernon 953 Kingston Bank V. Eltinge 391, 397 Kingston Bank v. Gay 910 Kington v. Kington 915 Kinley v. Fitzpatrick 81 Kinne v. Ford 41 Kinney V. Kiernan 67, 70 ' Kinney v. Schmitt 683 Kinnier v . Kinnier . 224 Kinsler v. Pope 873 Kipp V. Wiles 39 Kirby v. Mills 810 Kirciiner v. Myers 646, 650 Kirk y.Blashfield 936 Kirton v. Braithwaite 883, 913 Kissam v. Barclay ' 230 Kissam v. Roberts 554, 658 Kissock V. House 933 Kitchel V. Schenck 169 Kitchen v. Lee 666 Kitchen v. Place 686 Kleine v. Catara 868 Klinck V. Price 187 Klingman v. Holmes 343 Kline v. Beebe 666 Kline v. L'Amoreux 671 Kline v. Queen Ins. Co 193 Knapp V. Hyde 983 TABLE OF CASES. xliii PAGE. Knapp V. Smith 308, 310, 633 Knapp V. Wallace 863 Kuaus V. Jenkins 845 Knauth v. Bassett 985 Kneetle v. Newcomb 951 Knickerbocker Life Ins. Co. v. Hill. . 180 Knickerbocker Life Ins. Co. v. Nelson, 179 180 Knight V. Albert 448 Knight V. Beach 884, 899 Knight V. Burton 855, 861 Knight V. Clements. . . 687, 814, 820, 831 Knight V. Legh 563 KniU V. Williams 689 Knoblach v. Kronschnabel 50 Knowles v. Michel 414, 415 Knowltoa v. Congress, etc.. Spring Co 388, 695 Knowlton v. Mickles 249 , 867 Knox V. Bushell 387 Knox V. Goodwin 161 Knox V. Nutt 369 Knox V.Lee 893 Kock V. Emmerling 364 Koehler v. Wilson 931 Koehring v. Muemminghoff 150 Koerner v. Oberly 648 Kohler v. Wells 398 Kohn V. Lovett 448 Konitzky v. Meyer 268, 379 Koon V. Mazuzan 479 Koop V. Handy. . . . .' 104 Kortright v. Cady 901 Kountz V. Hart 689 Kowing V. Manly 331 Krach V. Heilman 646 Kraus v. Arnold '886 Kreiss v. Seligmau 718 Kreiter v. Nichols 650 Krom V. Schoonmaker 675 Kromer v. Helm 873, 873 Krone v. Krone 818 Krulder v. Ellison 38 Kuhlman v. Orser. 445 Kuhn V. Stevens 679 Kyle V.Gray 577 Lack V. Wright 906 Lacker v. Ehoades 58 Lackin v. Del. & Hud. C. Co 148 Lacy V. Wilson 891 Ladd V. Moore 69, 70 Lafarge v. Halsey 761 La Farge v. Herter 176, 941 Lafayette, etc., R. R. Co. v. Huffman. 594 Laflin v. Griffiths 235 La France v. Krayer 649 Laing and Todd, In re 853 Lake v. Artisans' Bank 895 Lake v. Morris 44 Lake V. Tysen 414 Lake Shore, etc., R. E. Co. v. Roach. 636 637 Lakin v. Ames 484 Lamb V. Lathrop 897, 898 Jjam bourne v. Cork 831 PAGE. L'Amoreux v. Vischer 946 Lancashire v. Mason 949 Lancaster v. Eve 379 Laucey V. Clark 910 Landers v. Prank St. Church 370 Landers v. Watertown Fire Ins. Co. , 196 300, 205 Landis v. Uric 737 Landon v. Emmons 554 Lane v. Atlantic Works 588, 589 Lane v. Dixon 544 Lane v. Hill 415 Lane v. King 237 Lane v. Losee 161, 171 Langdon v. Gray 174 Langridge v. Levy 433, 424, 425 Langton v. Hughes 716 Langworthy v. Bromley 403 Lanigau v. N, Y. Gas-light Co 596 Laning v. N. Y. Cent. R. R. Co 603 Lannen v. Albany Gas-light Co 596 Lansing v. Blair 799 Lansing v. Fleet 440 Lansing v. Montgomery 750, 939 Lansing v. Stone 588, 605 LaPage v. McCrea 920 LaPlace v. Aupoix 580 Lappin v. Charter Oak Fire Ins. Co., 320 231 Lar V. Chouteau 281 Larason v. Lambert 784 Larkin v. Robbins 863 Larabee v. Sewall 593 Lasher v. Northwest Ins. Co 840 Lasher v. Northwest Nat. Ins. Co., 191 193, 195 Lasher v. Williamson 761, 771 Lask V, Scott 108 Latham v. Westervelt 440, 443 Latimer v. Wheeler 546, 631, 643 Lattimore v. Harsen 680 Laurence v. Hopkins 798, 803 Laverty v. Snethen 583 Law V. Merrills 187 Lawley v. Hooper 619 Lawrence v. American Nat. Bank. . . 397 Lawrence v. Brown 940 Lawrence v. Fox 263 Lawrence v. Gallagher 118 Lawrence v. G'riflfen 173 Lawrence v. Hunt 740, 754 Lawrence V. Jenkins 504 Lawrence v. Kemp 230, 338 Lawrence v. Kidder 701 Lawrence v. McCready , 208 Lawrence v. Nelson 316 Lawrence v. Simmons 63 Lawrence V. Simons 403 Lawrence v. Taylor 275, 280 Lawrence v. Trustees, etc 148 Lawrence v. Woods 680, 873 Lawton v. Keil 77 Layton v. Pierce 731 Lazarus v. Fuller 814 League v. Waring 919 Leame v. Bray 610 xliv TABLE OF CASES. PAGE. Leatherdale v. Sweepstone 886 Leavitt v. DeLanny 169 Lebalister v. Nash 899 Lechmere v. Hawkins 767 Ledy ard v. Jones 444 Lee V. Chadsey 166 Lee V. Clark 936 Lee V. Decker , 783 Lee V. Kimball 108 Lee V. Pembroke Iron Uo 533 Leeds v. Mechanics' Ins. Co 301 Leggat V. Reed 335 Lesfgett V. Bank of Sing Sing 831 Lehmair v. Hris wold 776 Lehman v Marshall 180 Leitch V. HoUister 391 Leland v. Manning 736 Lemere v. Elliott 414 Leonard y. Barker 393 Leonard v. Belknap 569 Leonard v. Collins 603 Leonard v. Fowler 95 Leonard v. Pitney 797 Leonard v. Vredenburgh 364 Le Page v.McCrea 873, 874 Lerned V. Nannemacher Ill Lester v. White 381 Letts V. Brooks 339 Levee Commissioners v. Harris . . . 355 Leven V. Smith .-..19,35, 131 Levi V. Dorn 937 Levy V. Burgess 134, 907 Levy V. Green 49 Levy's Accounting 393 Lewellen v. Garrett 395 Lewis V. Davison 696 Lewis V. Greider 64, 346 Lewis V. Johns 546 Lewis V. Jones 914 Lewis V. Maloney 060 Lewis V. Mason 107 Lewis V. MoMillen 69 Lewis V. Palmer 60, 551 Lewis V. Payn 683, 683 Lewis V. Springfield Ins. Co. 307 Lewis V. Stein 1 450 Lichty V. Hugus 786 Liddle v. Market Fire Ins. Co 199 Lidlow v. Wilmot 331 Lightbody v. North America Ins. Co., 194 Lightbody v. Ontario Bank 916 Lightly V. Clouston 437 Lignot V. Redding 774 Lillie V. Hoyt 405, 407 Limbert v. Fenn 543 Lindner v. Sahler 324 Lindsay v. Davis 81 Lindsley v. Ferguson 69, 630, 625 Line v. Nelson 837 Linsell v. Bousor 807 Lincoln v. Buckmaster 586 Liotard v. Graves 148 Lippincott v. Aahfield 365 Lisk V. Sherman 279 Lisle V. Rogers 687, 689 Litchfield V. White 393 PACE. Littauer v. Goldman 96, 100 Littell V. Nichol's Admra 885 Little V. Banks 363 Little V. Deen 466 Little V. Phoenix Bank 917 Little V. Wilson 350,353,354, 654 Littler v. Holland 905 Little wood v. Williams 400 Livermore v. Northrop 575 Li vermore v. Peru 397 Livesey v. Omaha Hotel Co 907 Livingston v. Bain 103 Livingston v. Bishop 750 Livingston v. Harrison 889, 901 Livingston v. McDonald 534 Livingston v. Miller 139 Livingston v. Ralli 840 Livingston v. Stoessel 578 Livingston v. Tremper 343 Livor V. Orser 549 Lobb V. Stanley 800 Lobdell V. Stowell 146, 564 Locke V. Filley. . . 841, 850, 851, 858, 8G9 Lockhart v. Lichtenthaler 591 Locknane v. Emmerson 689 Lock wood V. Barnes 848, 253 Lockwood V. Bull 556, 583 Lock wood V. Thomas 331 Lockwood V. Thome 411, 413 Loeschigk v. Bridge 394, 296 Logan V. Houlditch 578 Logue V. Gillick '. 901 Long V. Greville 817 Long V. Knapp 53 Long V. Warren 623 Longendyke v. Longendyko 311 Longmaid v. Holliday 422, 424 Longridge v. Dorville 878 Looby v. Village of West Troy. 879, 880 Loomis V. Cline 343 Loomis T. Decker 808 Loomis V. Ruck 330 Loomis V. Stuyvesant 946 Loop V. Litchfield 590 Loosey v. Orser 443 Loomis V. Pulver 748 Loomis V. Terry 615 Lord V. Kenny 74 Lord V. Ostrander 661 Lord V. Price 556 Lord V. Thompson 338 Losee v. Buchanan 588 Lothrop V. Foster 381 Lounsbury v. Depew 9-34, 988 Lovett V. Hamilton 906 Lovejoy v. Dolan 608 Loveland v. Ritter 168 Lovell V. Howell ] 601 Lovell V. Martin 563 Lovell V. Orser 439, 913 Lovelock V. Franklyn 733 Lovett V. Cornwall 918 Low V. Pen 10 Lowenstein v. Mcintosh 865, 866 Lower v. Winters 353 Lowndes v. Dickerson 477 TABLE OF OASES. xlv PAGE. Loyd V. Jolinson 357, 709 Lloyd V. Johnson 357, 709 Lloyd V. Mathews 363 Lyall V. Edwards 824 Lycoming Ins. Co. v. Barringre 206 Lynde v. Budd 665 Lynch v. Fallon 365 Lynch v. Kennedy 943 Lynch v. McNally 613, 614 Lynch v. Nurdin 344, 594 Lynch V. The Mayor 525 Lynde v. Rowe 235 Ly ron v. Blakeman 483, 484 Lyon V. Blossom 845 Lyon V. Clark 153 Lyon V Kramer 569, 575 Lyon V. Valentine 362 Lubbering v, Kohlbrecher 687 Lyon V. Yates 435 Lucas V. Trumbull 560 Lucua V. Worswick 394 Lucy V. Monflet 51 Ludden v. Hazen 29 Luddington v. Bell.... 823, 874, 877, 878 Ludington v. Miller 876 Ludlow V. Carman 364 Ludlow V. Grozart 857 Ludwig V. Jei'sey City Ins. Co 194 Lummis v. Kasson 433, 444 Lupin V. Marie 21 Lupton V. Lupton 140 Luse V. Jones 544 Lush V. Druse 139 Luther v. Winnisimmet Co 457 Mabee v. Crozier 184 Maber v. Maber 812 Machin v. Geortner 478 Mack V. Burt 652, 655 Mack V. Mack 308 Mackay v. Mackay 32 Mackie v. Cairns 294, 395 Macomber v. Dunham 187 Macomber v. Parker 18 Macon courts have held the broad doctrine, without qualification, that on a; contract of sale of a certain quantity from a larger bulk, uniform inj kind and quantity, the property will pass, though there be no separation! of the quantity sold, if such be the intention of the parties, and that no rule of law will overrule such intention if it be otherwise clearly ex-! pressed. PTieasam.ts v. Pendleton, 6 Eand. 473 ; Kimberly v. Patohin, 19 IS". Y. 330; Bussell v. Carrington, 42 id. 118 ; S. C, 1 Am. Eep. 498 ; HurffY. Hires, 40 N. J. L. 681 ; S. C, 29 Am. Eep. 281 ; Chap- man V. Shepard, 39 Conn. 418 ; Waldron v. Chase, 37 Me. 414. But it is otherwise when the articles composing the mass are of dif- ferent qualities and values, making not merely separation but selection necessary. Chapman v. Shepard, 39 Conn. 413 ; Hurff v. Hires, 40 N". J. L. 681. And in order to substitute an arrangement between the parties for a manual delivery of a parcel of property mixed with an ascer- tained and defined larger quantity, it must be so clearly defined that the purchaser can take it, or if necessary maintain replevin for it. FootY. Marsh, 51 N. Y 288. SALE. 17 When the title passes ou a contract of sale. The tendency of the modern decisions is to give effect to contracts of sale according to the intention of the parties, to a greater extent than is found in the older cases, and to engraft upon the rule that the property passes by the contract of sale, if such be the intention, fewer exceptions, and those only which are founded on substantial considerations affecting the interests of the parties. 3. It is a general rule of the common law, that a mere contract for; the sale of goods, where nothing remains to be done by the vendor be-j fore delivery, transfers the right of property, although the price has not| been paid, nor the thing sold delivered to the purchaser. OlypJiant vj Baker, 5 Denio, 379 ; Bradley v. Wheeler, ii N. Y. 495 ; Hayden v. .Demets, 53 id. 426, 431 ; SohoonmalcerY. Vervalen, 9 Hun, 138 ; Groat V. Gile, 51 N. Y. 431. Except for the purpose of satisfying the statute of frauds, the seller is not bound to deliver the property sold unless he has agreed to do so, and the buyer must take it where it is at the time of the sale. Bradley v. Wkeder, 44 K Y. 495 ; Smith v. Sparkman, 55 Miss. 649 ; S. C, 30 Am. Eep. 537. " Independently of the statute, any words importing a bargain, whereby tlie owner of a chattel signifies his willingness and consent to sell, and whereby another person shall signify his consent to buy it, in presenti, for a specified price, would be a sale and transfer of the right to the chattel. To avoid frauds and perjuries, the statute requires either that the possession shall pass, or that something shall be given in earnest to bind the bargain, or that some note or memorandum, in writing, of the bargain be signed by the parties or their agents, when the price of the goods and merchandise shall be of the value or exceed $50." Spencee, J., De Fonclear v. Shottenkirk, 3 Johns. 174. The qualification to the common-law rule above stated, that the title ( will pass " when nothing remains to be done by the vendor," etc., meansl that nothing is to be done by the vendor to ascertain the identity, quan- tity or quality of the article sold, or to put it in the condition whicli the! terms of the contract require. Terry v. Wheeler, 25 N. Y. 520. If all that remains to be done is to make a simple computation to ascertain the gross amoxint of consideration, all the elements of that computation being already ascertained, this is not sucli a thing remaining to be done as will prevent the title from passing. Bradley v. Wheeler, 44 N.Y. 495. Where chattels, fully identified, are sold at a designated fixed price each, the fact that the number of articles is not known and is to be as certained solely for the purpose of fixing the total value will not prevent the title from passing. Groat v. Gile, 51 N. Y. 431. And generally, if 3 18 SALE. When the title passes ou a contract of gale. the goods sold are clearly identitied, the title will pass although it may- be necessary to number, weigh or measure them in order to ascertain what would be the price of the whole at the rate agreed upon between the parties. Crofoot v. Bennett, 2 N. Y. 258 ; TeiTy v. Wheeler, 25 id. 520. The question as to where the title of the property is does not depend so much upon what is to be done as the object to be effected by it. If the acts unperformed are necessary to the identification of the property which is tlie subject of the contract of sale, the title does not pass ; but if tlie object of the acts unperformed is merely to ascertain the total value at designated rates, the change of title is effected. Bur- rows V. Whitaher, 71 N. Y. 291. Where lumber, on being sold, is piled by itself, preparatory to ship- ping, and possession of the whole is delivered, a measurement is not necessary to vest the title in the purchaser. Tyler v. Strang, 21 Barb. 198. See Hyde v. Lathrop, 3 Keyes, 597 ; S. C, 3 Trans. App. 320 ; 2 Abb. Ct. App. 436 ; Burrows v. WUtaker, 71 N. Y. 291, 297. Where the delivery of the thing sold, and the payment of the price, are to be simultaneous acts, the title, untildelivery or payment, remains in the seller. Kelleyv. Upton, 5 Duer, 336; MjaooniberY. Parker, IZ Pick. 178 ; Eeddle v. Varm.er, 20 id. 280. In the absence of any special agreement, payment and delivery are to be deemed concurrent acts, and an action for non-performance cannot be maintained by either party, without showing a readiness to perform on his part. Metz v. Albrecht, 52 111. 491 ; DoAiis v. Adams, 18 Ala. 264. And see Cassellv. Baclcrack, 42 Miss. 56; S. C, 2 Am. Kep. 590. On a sale of chattels for cash, the buyer cannot take the goods or sue for them without payment ; and where the vendor sold to the plaintiff a quantity of hops, to be paid for on delivery, and the vendor sent the hops to the defendants, who were forwarders and warehousemen, to be delivered to the plaintiff on payment of the purchase-price in cash, it was held that the title did not pass before payment, and that the plain- tiff, having neglected to make payment and receive the hops for an unreasonable time after being notified of their arrival, could not maintain trover against the defendants, who shipped them to another market in pursuance of the orders of the vendor. Conway v. Bush, 4 Barb. 564. But see Morey v. Medbury, 10 Hun, 540. When it is not the inten- tion of the vendor to part with the possession of the property until he is paid the price agreed upon, in money, he will not lose title to the property by inadvertently allowing the purchaser to get possession with- out payment. Miller v. Jones, 66 Barb. 148. See, also, Martineau v. SALE. 19 When the title passes on a contract of sale. Kitohing, L. R., 7 Q. B. 436 ; S. C, 2 Eng. R. 539 ; Leven v. Smith, 1 Denio, 571. In the examination of the authorities on the question of title to goods nnder a contract of sale the distinction between the right which the vendee has under the contract as against third persons, and the right which he has as against his vendor, must not be overlooked. A vendee in possession of goods nnder an executory contract, though he never acquires title as against his vendor, may have his action against a stranger who carries them away. In an action against the third party for the conversion of the goods, title in the plaintiff is not essential if he has, at the time of the taking and the commencement of the action, the right to the possession of the goods taken. As has been stated, title to goods sold may pass to the vendee without payment or delivery when such was the intention of the parties. The difficulty lies in determining what acts or words evince such an intention. The question whether the property has passed under a contract of sale has generally arisen where the right of an unpaid vendor is in issue. Payment of the price is so essential an ingredient of sale that neither in law nor in morals is the buyer entitled to have the goods until he pays for them ; and when the right of the vendor to retain the goods has arisen, the courts have laid hold of slight circumstances to retain in him the property until the purchase-money is paid. See Hanson V. Meyer, 6 East, 614; Wallace v. Breeds, 13 id. 522; Shepley v. Davis, 5 Taunt. 616; Busk v. Davis, 2 M. & S. 397; Swanwick v. Southern, 9 A. & E. 895 ; Qodts v. Rose, 17 0. B. 229. An understanding that the title to personalty shall pass before full payment may be implied from circumstances. Bonn y. Howie, 40 Mich. 401 ; S. C, 29 Am. Rep. 282. Where a valid contract is made for the sale and delivery of the wheat in a specified boat for cash, and the buyer designatesa vessel into which the wheat is to be delivered, and the seller accordingly has it measured as is customary in such cases, and placed on board of snch vessel, and sends to the buyer a duplicate measurer's return or certificate of the quantity, and a bill for the wheat at the contract-price, and the seller thereupon requests payment from the buyer, who answers that he will pay on Saturday (the second day thereafter), and the seller makes no objection thereto ; and where there is no fraud in making such contract or obtaining such delivery, a person in good faith, advancing money on the same day to such buyer on the security of such wheat, and on the faith of his being the owner thereof, will obtain a valid title thereto as against the seller to the extent of such advance ; although such buyer 20 SALE. Whea the title passes on a contract of sale. fails after obtaining such advance, and thus becomes unable to pay to tlie seller any part of the contract-price. Darhow v. McDonald, 5 Bosw. 1-30. See S. C. again, sub non. Winiie v. McDotiald, 39 N. Y. 233. Such a delivery being all the delivery which the parties contem- plated or the contract required, it was subject to no condition unless it be an implied one, that payment be made if demanded, when all the wheat was delivered. lb. Upon a contract to sell goods, where no credit is stipulated for, the vendor has a lien, so that if the goods be actually delivered to the vendee, and upon demand then made, the vendee refuses to pay, the vendor may lawfully take the goods as his own, because the delivery was conditional. Palmer v. Hn.nd, 13 Johns. 434. See Ilaqgerty v. Palmer, 6 Johns. Ch. 437 ; Keeler v. Field, ] Paige, 312 ; Fletcher v. Cole, 23 Yt. 114 ; Ryder v. Hathaway, 21 Pick. 298. Where goods are sold, to be paid for in cash or by notes on delivery, if delivery is made without demand of the notes or cash, the presump- tion is that the condition is waived, and a complete title vests in the purchaser ; but this presumption may be rebutted by proof of acts or declarations or circumstances showing an intention that the delivery shall not be considered complete until performance of the condition, and the question of intention is one of fact. But after actual delivery, although as between the parties to the sale the delivery be conditional, a bona fide purchaser from the vendee obtains a perfect title, though a voluntary assignee of the purchaser would not. Comer v. Cunning- ham, 77 N. Y. 391; Smith v. Zyn.es, 5 id. 41; Fleeman v. Me-^ Keon, 25 Barb. 474 ; Beavers v. Lane, 6 Duer, 238 ; Ilaggerty v. Palmer, 6 Johns. Ch. 437. It is now authoritatively established in this State, tliat a condition that title shall not pass until payment, when attached to delivery upon an actual completed contract of sale, is avail- , able only as against the vendee and persons claiming under him, other than hona fide purcliasers without notice. Comer v. Cunningham,, 77 N. Y. 391 ; Smith v. Lynes, 5 id. 41 ; Bawls v. Deshler, 3 Keyes, 572 ; S. C, 3 Trans. App. 91 ; 4 Abb. Ct. App. 12. "Where a party contracts to deliver stocks to another, for cash on delivery, the acts of delivery and payment are to be simultaneous, and the purchaser, if he does not pay the cash upon the delivery of the stock, is immediately liable to an action for a breach of the contract. Genin y. Tompkins, 12 Barb. 265. The fact that the day of performance of the contract is to be at the option of the purchaser, and that he claims the delivery of the stock at a certain time, and that it is then delivered to him without immediate payment, does not alter the case. The pur- SALE. 21 when the title passes on a contract o{ sale, chaser's checks which, when presented to the bank on which they are drawn, are dishonored for want of funds, are not payment ; nor do they extend the time of payment. lb. Upon a valid tender by the vendor of specific chattels under an exec- utorj'^ contract of sale, the property passes to the vendee, at whose risk it is retained by the vendor. Hayden v. Demets, 63 N. Y. 426. A contract for the purchase of a quantity of cotton at a specified price per pound, deliverable thirty days from date and payable on de- livery, the buyer to pay storage, insurance and interest after ten days, and to deposit five dollars per bale with the vendor, is an executory agreement and the title remains in the vendor. The deposit in such a case is an advance toward the price, and in case the cotton is destroyed by fire before the time of delivery, such advance may be recovered of the vendor. Joyce v. Adams, 8 N. Y. 291. "Where goods are sold for which a note is to be given at six months, if the goods are delivered and the note not demanded until nearly two months after the sale, the condition will be deemed to have been waived, and the title will pass so that the vendee may sell the goods to one of his creditors in payment of his debt, and his title will be su- perior to that of the vendor, in an action of replevin. Hennequin v. Sands, 25 Wend. 640. Where goods are sold for which notes are to be given, and the property is subsequently delivered by the vendor without at the time requiring the notes or annexing any condition to the delivery, such delivery is a waiver of the obligation, which other- wise the vendee must have complied with before he could have de- manded the goods, and the vendee becomes absolute owner. Lupin v. Marie, 6 Wend. 77. A vendor of personal property in such a case has not a lien upon the property sold, as has the vendor of real estate upon the premises conveyed by him. lb. Where the memorandum of a contract of sale of merchandise, which was signed by a broker as the agent of the parties, contained a pro- vision that the note to be given by the purchasers should he made satis- factory to the sellers, it was held that the obvious construction of the contract was that the delivery of the merchandise and the giving of the notes were to be simultaneous acts and each was to be the condition of the other. Such a contract differs from ordinary contracts in which the sale is for cash or notes ; because, in this case, a further act is nec- essary on the part of the vendors, before the vendees will have it in their power to fulfill the contract, viz., the notes to be given are to be satisfactory to the vendors. This provision will render a sure clearly and unequivocally conditional. Draper v. Jones, 11 Barb. 263. Upon 22 SALE. When the title passes on a contract of sale. a sale of merchandise on a credit of four months, upon notes to be made satisfactory to the sellers, a clerk of the vendors delivered the merchandise at the time agreed upon, to the cartman of the vendees, and another clerk shortly after the delivery called on the vendees with the bill of parcels, which contained the words, " at four months with satisfactory security. " The vendees asked him what kind of notes would be satisfactory, and he replied, "just what the bill calls for. " He again called upon the vendees, and they then said that they had not fixed upon the paper that they would give; but they proposed the^jiote of a third person for the vendor's consideration, who said they would inquire about him. But before the clerk had time to inquire again, the vendees had stopped payment, and no note was ever given. The sheriff having levied upon and taken the merchandise by virtue of an execution against the purchasers, the vendors brought an action of re- plevin against him for the taking, and it was held that there was evi- dence enough to go to the jury upon the question whether the sale and delivery of the property was conditional ; and that the judge before whom the cause was tried, erred in ordering a nonsuit. lb. The title of the vendors is not divested by the receipt of the goods by the vendees, where it is apparent that such was not the intention of the parties, and where upon a conditional sale of property, the property is delivered to the purchaser without a compliance with the condition being insisted on at the time. Yet if it is insisted upon immediately afterward, when a bill of sale is rendered, and the vendees fully recog- nize and acknowledge the condition as still subsisting and binding upon them, this is sufficient to uphold the condition. lb. A sale of lumber on credit, and a conditional delivery of it to the purchaser for transportation by him, and a delivery to consignees for sale, in the name of the original owner and as Ms property, the avails to be paid to him to the extent of the unpaid purchase-money, and the surplus to such purchaser, give to the latter no title to the property, or authority to sell it, or to create a lien upon it for advances. Covell v. mil, 6 k. T. 374. "When property is to be manufactured by the vendor, or is to be purchased by him for the purpose of performing the contract at a future time, the general rule is that the title does not pass until a de- livery of the property. See Comfort v. Kiersted, 26 Barb. 472 ; Machay v. MacJcay, 1 Lans. 506 ; Halterline v. Bice, 62 Barb. 593 : Sutton V. Camphell, 2 Sup. Ct. (T. & 0.) 595 ; Andrews v. Durant, 11 N. Y. 35; Riggins v. Murray, 73 id. 252; Butler v. Butler, 77 id. 472 ; Abbott v. Blossom, 66 Barb. 353. SALE. 23 Sale or return. In case of judicial sales, if the property sold is mingled witli other property, the officer making the sale must separate- the property sold from the mass of property with which it is mixed or the title will not pass. Stevens v. Eno, 10 Barb. 95. In a contract for the sale of logs which are to be delivered at a dis- tant place, the contract will be executory until delivery, as between vendor and vendee. JEoans v. Harris, 19 Barb. 417. Marking logs is an equivocal act and may be for the purpose of tak- ing possession, or it may be evidence of acceptance, or it may be done merely for the purpose of identification. lb. On a sale of cotton which is to be weiajhed, the sale is executory, and the title does not pass. Ha- pelye v. Maohie, 6 Cow. 250 ; Joyce v. Adams, 8 N. Y. 291. An agreement for the sale of lumber which is to be measured and inspected at a future time is an executory sale, and until delivery, the title remains in the vendor. McDonald v. Hewett, 15 Johns. 349. A contract for the sale of wheat, of which a portion is unthreshed, is an executory sale. Downs v. Ross, 23 Wend. 270. § 8. Sale or return. There is a class of sales in which the purchaser has a specified or a reasonable time in which to determine whether he will become the owner. Such contracts are known as contracts of " sale or return." In such cases, the purchaser sometimes desires to examine the quality of the articles which he receives, or he wishes to test the value or usefulness of some kind of machine, etc., with a right to re- turn the things received if they do not suit the person who receives them. When goods are sold under a contract of " sale or return," they pass to the purchaser, subject to an option in him to return them within a reasonable time, and if he fails to exercise that option within a reason- able time, the contract is discharged of the condition, the sale stands as an absolute sale, and the price may be recovered in an action for goods sold and delivered. Mossy. Sweet, 16 Q. B. 493 ; Taylor y. Tillotson, 16 Wend. 494. In such contracts the title passes to the purchaser, sub- ject to his right to return the property and reinvest the former owner with the title to it. But until such election is made, the goods are at the risk of the purchaser, and in case they are lost, injured, destroyed, or stolen, the loss will fall upon the purchaser. liis contract is, that he is the purchaser, or that he will return the articles in as good condition as he received them, subject to any special modification which may have been made in the particular instance. Taylor v. Tillotson, 16 Wend. 494. See Person v. Giver, 29 How. 432 ; Neidig v. Eifler, 18 Abb. 353. This kind of contract is common to all classes of persons, from the seller of a single article to a manufacturer or wholesale dealer. Where 24 SALE. Sale or return . goods are sent from a manufacturer or a wholesale dealer to a retail merchant, in the hope that he will purchase them, and with the under- standing that what he may choose to take he shall have as on a contract of sale, and what he does not take, he will retain as consignee for the owner, the goods are said to have been sent on sale and return. The goods taken by the receiver as on a sale will be considered as sold, and the title to them is vested in the receiver of them; the goods he does not buy are considered as a deposit in the hands of the receiver of them, and the title is in the person who sent them. Bouv. Law Diet., " Sale and Eeturn ;" 1 Bell's Com. 208, 6th ed. If a part of the goods ordered on " sale or return " are kept, and the rest returned, a new contract arises in respect to the portion kept, and the price of such portion may be recovered in an action for goods sold and delivered. Hart v. Mills, 15 Mees. & Wels. 87. The rules of law relative to sales " on trial" are, in many respects, similar to those relative to the bargain of " sale or return." An option to purchase if the buyer likes is, however, essentially different from an option to return a purchase if he should not like ; for in the one case, the property will not pass until the option is determined ; while in the other, the property passes at once, subject to the right to rescind and return. Hunt v. Wyman, 100 Mass. 198. In sales " on trial," the buyer has the full period agreed upon within which to return the property if not approved of, but no more. See Moore v. Pierey, 1 Jones (N. C), 131. And, where no specified period has been fixed in advance, a reason- able time is implied. Paige v. McMillan, 41 Wis. 337. It is the duty of the buyer, if he disapprove, to make his disapproval known to the seller in due season, or the contract will become binding by the resolu- tion of the condition. Johnson v. MoLane, 7 Blackf . (Ind.) 501 ; Quinn V. Stout, 31 Mo. 160 ; Waters' Heater Co. v. Mansfield, 48 Vt. 378 ; Mowbray v. Cady, 40 Iowa, 604. See Hall v. Meriwether, 19 Tex. 224. And although the seller lives at a distance, the buyer is bound to seek him ; and if his residence was unknown, he must show that he endeav- ored to discover it. Failing in these respects, the contract will become absolute. Dewey v. Erie Borough, 14Penn. St. 211. In arriving at a determination whether to keep the thing or not, an actual trial must be made. The testimony of experts that the machinery could not have operated is inadmissible. McDonalds. Pierson,?>%'^ax\i.Vi%. And the buyer is bound to bring to the trial of it honesty of purpose and judg- ment, according to his capacity to ascertain his own wishes ; but he is not necessarily bound to use the care and skill of ordinary persons in making the determination. Hartford Sorghum Manuf. Co. v. Brush, SALE. 25 Conditional sales, and sales by vendors without title. 4 { Vt. 528. And it is immaterial that the chattel, after its return to the seller, worked well under his management, without alteration or repair. Aiken v. Hyde, 99 Mass. 183. It has been held that, if the seller accept a return, he caimot object that no trial had been made. Young v. Hunter, 6 N. Y. 203. § 9. Conditional sales, and sales by Tenders without title. Where goods are sold on condition of being paid for on delivery, in cash or commercial paper, or on condition of receiving on delivery se- curity for payment, an absolute and unconditional delivery of the goods by the vendor without exacting, at the time of delivery, a performance of the condition, or attaching any other condition to the delivery, is presumptively a waiver of the condition of the sale, and a complete title passes to the purchaser, if he was guilty of no fraudulent contri- vance to obtain possession. But the presumption of a waiver of the con- dition may be rebutted by proof of acts, declarations or circumstances showing an intention that the dehvery shall not be considered com- plete until performance of the condition. The question of intention is one of fact. If the fact is established that the intention of the ven- dor was that the delivery should not be complete before the perform- ance of the condition, the vendee and persons claiming under him, other than a hona fide purchaser without notice, will take nothing by the delivery, and the vendor may immediately resume the possession of the goods. But after actual delivery, although as between the parties to the sale such delivery be conditional, a hona fide purchaser from the vendee obtains a jterfect title. Comer v. Cunningham, 77 N. Y. 391; 8wiih V. Lynes, 5 id. 41 ; Fleeman v. MoEeon, 25 Barb. 474 ; Beavers v. Lane, 6 Duer, 238. And ^eeZeven v. Smith, 1 Denio, 571 ; Eussell V. Mimr, 22 Wend. 659 ; Tuthill v. Wheeler, 6 Barb. 362. In the last three cases cited the goods were to be paid for on delivery, but that was not done, and there was no waiver of the condition ; and it was held that the title did not pass as between vendor and vendee. Where goods are sold upon the condition that the title to them shall not pass to the vendee until payment, such vendee cannot transfer any title to them, as against the vendor, by an assignment to a single creditor, for the purpose of securing his debt, nor by a general assignment in favor of all his creditors. Keeler v. Field, 1 Paige, 312; Haggerty v. Palmer, 6 Johns. Oh. 437. In such cases the vendor may reclaim the goods by replevin, or he may recover their value of such creditors, in case they convert them to their own use, or refuse to redeliver them on demand. lb. One having possession of personal property as a bailee for hire, with 4 26 SALE. Conditional sales, and sales by vendors witliout title. an executory and conditional agreement for its purchase, which conditions have not been performed, has himself no title to the property, and can give no title to a purchaser, although such purchaser acts in good faith and parts with value, without notice of the want of title of his vendor. Amiln v. I>i/e, 46 IST. Y. 500 And see Ballard v. Burgett, 40 id. 314 ; MoEntee v. Soott, 2 Slip. Ct. (T. & C.) 284; S. C. afE'd, 58 IST. Y. G54 ; Cole v. Mann, 62 id. 1. These decisions are placed upon the principle that a hona fide pur- chaser of persona] property, other than coinraercial paper, acquires no better title than his vendor, although the latter has possession at the time of the purchase. The cases illustrating the effect of a conditional sale or conditional delivery are numerous. The owner of a yoke of oxen let them for use to one Morgan, who agreed to paj^ $1 per day for their use ; at the same time it was agreed that if Morgan should deliver to the owner of the cattle a given quantity of lumber, at a place specified, the cattle should be his ; and that, if he failed to deliver the full amount of lumber, the amount actually deliv- ered should be received by the owner of the cattle at a fixed price per thousand, and applied in payment for the use of the oxen. The oxen were delivered, under this agreement, to Morgan, who failed to deliver the full amount of lumber, and mortgaged the cattle to a third person for moneys advanced in good faith. It was held, in an action between the owner of the cattle and the mortgagee, that the latter acquired no title to the cattle by the mortgage. Austin v. Dye, 46 N. Y. 500. In another case the owner of a yoke of oxen agreed with one France that, when the latter should pay $180, he w^ould sell him the oxen, and that, imtil such payment, France should have the possession of the cattle. The oxen were delivered under this agreement, but the purchase-money was never paid. In the mean time France sole the oxen to a hona fide purchaser. It was held that the purchaser acquired no title to the oxen. Ballard Y. Sampson, 40 N. Y. 314. It was agreed by parol between the vendor and purchaser of certain machinery, that the title thereto should remain in the vendor until it was paid for, and a note was given for the purchase-price, which was never paid. It was held that the agreement was valid ; that the title re- mained in the vendor notwithstanding the giving of the note, and that such title could not be divested by a sale of the land upon which the machinery was located. MoEntee v. ScoU, 2 Sup. Ct. (T. & C.) 284 ; S. C. afErmed., 58 K Y. 6r,4. Where the owner of property consigns it to another under an agree- ment that when paid for it shall become the property of the consignee. SALE. 27 Conditional sales, and sales by vendors without title. the latter acquires no title to it before such payment, and it is not liable to levy and sale upon execution against him. Cole v. Mann, 62 N. Y. 1. And see Herring v. Hoppook, 15 id. 409. But a hona fide purchaser of property for value, and without notice from one to whom it has been delivered for the purpose of sale, will acquire a valid title notwithstanding a secret agreement between the owner and the vendor that the title should not pass to the latter until he had paid the owner therefor. Fitzgerald v. Fuller, 19 Hun, 180. The plaintiff manufactured a boiler, engines, and other machinery, and put them into the defendant's steamboat, under a contract which pro- vided that the vendor was to be paid a certain specified price, a portion of which was to be secured by a chattel mortgage upon the property, which was to be executed by the defendant when the plaintiff had com- pleted his contract. After the engines and boiler were placed and par. tially fastened in the boat, but before the work was completed or ready to be dehvered, the defendant clandestinely went off to Canada with the boat, and on his return refused either to execute the chattel mort- gage or to pay for the machinery, or to permit the plaintiff to remove it. In an action of replevin, brought by the plaintiff, the jury having found that there had been no absolute and unconditional delivery of the machinery to the defendant, nor such an annexation of it to' the boat that it could not be removed without injury to the boat, it was held that the plaintiff had not lost his title to the property, but might maintain the action. Kidd v. Belden, 19 Barb. 266. Where the sale is made upon the condition that the title shall not pass until the property is paid for, it is also held that the creditors of the vendee will not get any title either by a levy and sale under an execu- tion, or by a purchase and an agreement to apply the price in payment of an existing debt. Strong and Dubois entered into a written contract by which the former agreed to sell, and the latter to purchase, a canal- boat for $300, provided that amount should he paid hj Dubois in freighting wheat and flour on the canal under the direction of Strong y this was held to be a conditional sale, and that no property vested in Dubois which could be levied upon and sold under an execution issued against his property until the purchase-money was fully paid. Strong v. Taylor, 2 Hill, 326 ; Tyler v. Strang, 21 Barb. 199. Under a lonafide contract of this nature, the vendee is entitled to the possession of the thing sold, for the purpose of paying for it in the manner stipulated ; but it is to be thus possessed as the property of the vendor till the con- dition of payment is fulfilled. lb. Where a chattel is delivered to one who has bargained in writing for the purchase thereof, and agreed to 28 SALE. Conditional sales, and sales by vendors without title. pay therefor at a future day, under an express contract that no title is to vest in liiin until payment, the property of the vendor is not divested, and the purchaser takes, at most, only a right by implication to the use of the chattel until default in the stipulated payment. Herring v. Hop- pock, 15 N. Y.409; S. C, 3 Duer, 20. A creditor of the party thus acquiring possession, upon whose execution the sheriff has levied upon the chattel, and who, after notice to the sheriff of the claim of the vendor, indemnifies him against responsibility for a sale, and the sheriff there- upon sells the property, is liable in an action by the vendor for its value, although the execution in his favor was satisfied by a sale of other property previous to the sale of the chattel. lb. Where the agreement for the sale of personal property is merely verbal, instead of being in writing, it is equally as valid as a written agree- ment ; and if the sale is made upon condition that no title is to pass until it is paid for, such verbal agreement is legal and binding. Sasbrouck v. Lounsbury, 26 N. Y. 598. Where the property thus sold is exempt from levy and sale on execution, a creditor of the vendee cannot law- fully Sell or authorize the sale of it upon a judgment and execution in his favor against such vendee. And if he does direct a sale of it, he will be liable to an action in favor of the vendee. And if such creditor bids off the property upon the execution sale, and he subse- quently refuses to deliver it to the vendor on his demand, after the purchase-price has become due, he will be liable to pay the vendor the full value of the property, notwithstanding he may have paid the judgment recovered by the vendee for the wrongful sale on the execution. The judgment in favor of the vendee, and its payment in full, does not bar an action by the vendor to recover the value of the property. lb. Although such conditional sales are valid as between vendor and vendee, or those standing in their shoes, yet if the vendee tenders the purchase-money before it is due, on the day it is due, or even after the pay-day, this is sufficient to deprive the vendor of any right of taking and selling the property after such tender. Hutchings v. Hunger, 41 Barb. 396 ; S. 0. affirmed, 41 N. Y. 155 ; Cushman v. Jewell, 7 Hun, 525. Where goods are purchased for cash on delivery, that is, the price to be paid within ten days, the very terms and import of the arrangement are that there is to be a qualified delivery, which is to precede payment. Dows V. Dennistoun, 28 Barb. 393. An understanding, arrangement or custom, that the possession of goods shall be intrusted to the vendee for the purpose of enabling to realize upon them, and thus provide the means for the payment of the price, cannot be construed into an abso- SALE. 29 Conditional sales, and sales by vendors without title. lute transfer of the title to the property, as between the original parties to it, or. persons having no greater equities than the original parties. lb. And if, nnder such circumstances, the goods are delivered to the pur- cliaser on board of a vessel, and he receives a bill of lading therefor, which, together with a bill of exchange drawn upon it, he transfers to third persons before he has himself paid for the goods, upon an agree- ment that such third persons shall pay the amount of the bills within ten days, the latter cannot, as against the original vendors, set off against such bills the amount of debts owing to them by the purchaser from the original vendor. lb. And see Fleemom v. McKean, 25 Barb. 474. Skinner was the owner of three shingle machines and belting, which he had recently purchased in the State of Maine, and he made a writ- ten agreement with Gulick, which was as follows : Gulick agreed to pay Skinner the sum of $810, within five months, for the machines, belting, time, service and expenses of Skinner, which sum Skinner agreed to take for the property ; and the agreement then provided that Skinner lent the property to Gulick as above stated, and if Gulick failed to make the payment as agreed. Skinner was to be at liberty to take tlie property away, to enable him to realize the amount and inter- est ; it was held that this was a conditional sale, and that Skinner was entitled to the property in preference to a purchaser who had bought the property at a sherift's sale on an execution issued against the prop- erty of Gulick. Grant v. Shinner, 21 Barb. 681 ; Piser v. Stearns, 1 Hilt. 86; Yol. 1,268, 269. But, although the law tolerates a separation of the apparent from the real ownership of chattels in some cases, when the honesty of the transaction is made to appear, yet when the purposes for whicli the possession of property is delivered to a buyer are inconsistent with the continued ownersliip of the vendor, the transaction will be presumed- fraudulent as against purchasers and creditors. The form of the trans- action will be deemed colorable, and the title be held to have vested absolutely in the buyer. Ludden v. Hazen, 31 Barb. 650. . Hackett purchased a quantity of liquors of the plaintiff for the pur- pose of stocking an imlicensed grocery, and he gave the vendor a re- ceipt therefor, which specified that the same were to remain the prop- erty of the seller until paid for, the liquor to be paid for when sold, or returned when called for ; it was held that the transaction could not be upheld as a conditional sale ; that by the contract of sale and the delivery of the liquors to Hackett to make a part of his stock in trade and to be retailed to his customers, the property vested in him, and became 30 SALE. Conditional sales, and sales by vendors without title. liable for his debts. lb. ; Bonesteel v. Flack, 41 Barb. 435 ; Devlvn v. O'Neill, 6 Daly, 305. See Chamberlain v. Dickey, 31 Wis. 68. There are some other cases wliich enforce this rule in its application to cases in which property is sold for the purposes of retailing or for trade. See Herring v. Willard, 2 Sandf . 420, and cases cited. "Where the vendor of goods, sold upon condition, stands by and sees his vendee sell the property to a hona fide purchaser without giving notice of his rights, he will be held to have sanctioned the sale, and will be estopped from questioning the title of such purchaser. Brew- ster V. Baker, 16 Barb. 613. So, on the other hand, if the purchaser from such a vendee has notice of the condition ; or, if he has notice of such facts as are sufficient to put him upon the inquiry as to the ownership, he will not get any title as against the original vendor. Covell V. Hill, 6 N. T. 374. There are several cases which hold that a hona fide purchaser from a vendee who purchased upon such a condi- tion will not get any title as against the original vendor. Where goods are sold to be paid for on delivery, if, on the delivery, being completed, the vendee refuses to pay for them, the vendor has a lien for the price, and may resume possession. And if, during the delivery, and before it is completed, the purchaser sells or pledges them to a third person, for a valuable consideration, but without notice to the original vendor, the lien of the latter will not be affected, and he may recover them from such subsequent purchaser. Palmer v. Hand, 13 Johns. 434. In one case the plaintiff delivered a safe to one Young, under a bargain for the sale thereof, and the agreement expressly provided that the plaintiff neither parted with the title, nor did Young acquire any, until the payment of the purchase-price, for which a note was given, payable in six months. It was also agreed that in case of a de- fault in payment, the defendant might enter Young's premises and re- take the safe, and that, in that event. Young was to pay for the use of the safe, with all reasonable charges. The purchase-price was not paid, and Young mortgaged the safe to the defendant, to secure him for the rent of the store, which accrued subsequently to the time of the deliv- ery of the safe to Young ; it was held that Young had no title to the safe ; that the mortgage did not transfer any title to the safe to the defendant ; and that an action of replevin could be maintained by the plaintiff against the defendant to recover the possession of the safe. Herring v. WiUard, 2 Sandf. 418. A sale of chattels may be conditional, either as to the right of prop- erty in them, or as to their possession. When the right of property SALE. 31 Conditional sales, and sales by vendors without title. passes to the vendee, but not the right of possession, the possession may be delivered conditionally, so that the vendor can, as against the vendee, rescind the sale or enforce his lien, if the price is not paid ac- cording to the condition ; though he cannot, in such a case, do so, to the prejudice of a hona fide purchaser for value, from his vendee. Hawls V. beshler, 28 How. 66 ; S. C. affirmed, 3 Keyes, 573 ; 4 Abb. Ct. App. 12. But where a sale and delivery of chattels is made upon the express condition that the right of property in them is not to vest in the vendee until the purchase-money is paid or received, no title to the property will pass until the condition has been performed. lb. The distinction between a conditional sale, as it respects the right of prop- erty, and a sale conditioned only as to the possession, or a sale induced by fraud, is, that in the former case there is a bare possession without any right of property, while in the latter two cases there is a right of property and also tlie possession of the property. lb. Where chattels are leased, at a specified rent, with an agreement for the sale of them if the rent should be punctually paid, this is neither a conditional sale, inpresenti, nor a chattel mortgage, in the sense that requires it to be filed ; and the title does not pass until the agreed paj-- ments are made ; and the bailees cannot transfer a good title to the chat- tels, even to a hona fide purchaser for value. Neidig v. Eifi^er, 18 Abb. 353 ; Oushman v. Jewell, YHun, 625. And see Sage v. Shutz, 23 Ohio St. 1 ; Ooldsmith v. Bryant, 26 Wis. 34 ; Giddeij v. Altman, 27 Mich. 206 ; Sumner v. Woods, 52 Ala. 94 ; Dudley v. Abner, id. 572 ; Vaughn V. Hopson, 10 Bush (Ky.), 337. A written contract entered into by and between the plaintiffs and S. F. & Co., provided that certain machinery was to be manufactured by the former and set up in the mill of the latter, and that the plaintiffs were to remain owners of the machinery until it was paid for. The machinery was set up in the mill according to the contract, the mode of annexa- tion being such that it could be removed without injury to the build- ing ; it was held that the machinery did not, by the annexation, be- come a part of the realty, so as to pass by a deed of the mill and lot executed by S., the owner thereof, but that it continued to be personal property, and to belong to the plaintiffs so long as the purchase-money remained unpaid, and that the plaintiffs could maintain an action to recover the possession or the value thereof, in case of a conversion of it by the defendants. Oodard v. Gould, 14 Barb. 662. In the following cases it has been held that a sale and delivery ot goods upon condition that the title shall not pass until the payment of the price in cash give the vendee no title which he can convey to a 32 SALE. Conditional gales, and sales by vendors without title. purchaser in good faith and for a valuable consideration. Thompson v. Boy, 43 Ala. 224 ; Carroll v. Wiggins, 30 Ark. 402 ; Bauendahl v. Eorr, 1 Blatchf. [C. C] 548; Beshon v. Bigelow, 8 Gray, 15!t; Aultman v. Mallory, 5 Neb. ITS; S. C, 25 Am. Kep. 47^; Jowers V. Blandy, 58 Ga. 379 ; Bidgeway v. Kennedy, 52 Mo. 24; i^(^eM v. ^^TTier, 25 Mich. 48; Adams v. O'Connm; 100 Mass. 515; S. C, 1 Am. Eep. 137; Baid v. Beed, 52 N. H. 136; Duncan v. Stone, 45 Yt. 118; TFaJasA Elevator Co. \. First Nat. Bank, 23 Ohio St. 311; McOirr v. Sell, 60 Ind. 249. "Where goods are sold on time and delivered to the vendee, it being part of the contract that they are to be paid for by the negotiable note of the vendee, such paj'ment is a condition prece- dent to the sale, and the title to the goods will not vest without such payment or a waiver of it. Birschorn v. Canney, 98 Mass. 149 ; Stone V. Perry, 60 Me. 48 ; Seed v. Lord, 66 id. 580. And it has been further held that property in possession of a vendee, who is not to be- come the owner of the title until the purchase-price is fully paid, may, at any time before such payment, be mortgaged or sold by the vendor to another person, and that such person will acquire a title to the property superior to that of the conditional vendee. Everett v. Hall, 67 Me. 497. And see Brown v. Raynes, 52 id. 578 ; Buhbard v. Bliss, 12 Allen, 590. It has been held in this State that where chattels are sold conditionally and delivered to the vendee, the vejidor's rights in the property remain as against the vendee and his voluntary assignees; but not as against a hona fide purchaser without notice. Wait v. Green, 35 Barb. 585 ; 62 id. 241 ; 36 N. Y. 556 ; 46 How. 449 ; 2 Trans. App. 340. But this case, although decided by the court of last resort, has been so often questioned and distinguished by later decisions, that it is of doubtful authority ; and if it is to be sustained as an exposition of the present law of this State, it must be upon the theory that the facts of the case establish a conditional delivery and not a conditional sale. See Austin v. Bye, 46 N. Y. 500, 502 ; Ballard v. Burgett, 40 id. 314, 321 ; Comer v. Cunningham, 77 id. 391, 397; McNeil v. Tenth National Bank, 55 Barb. 59, 68 ; S. C, 46 IST. Y. 325. But see Bawles v. Deshler, 3 Keyes, 572 ; S. C, 3 Trans. App. 91 ; 4 Abb. Ct. App. 12 ; Winne v. McDonald, 6 Trans. App. 207, 217. The cases which have been cited are sufficient to show that the de- cisions are not uniform upon this question so far as it relates to honM fide purchasers. In some of the cases no notice has been taken of the distinction which exists between those cases in which property was sold to be paid SALE. 33 Conditional sales, and sales by vendors ■without title. for in cash, and the cash payment waived by a delivery of the property without payment, and those cases in which it was expressly agreed that the title should not pass until the property was paid for. In cash sales, it may be said that the sale is on an implied condition that the title does not pass until payment. But, in such a case if the vendor delivers the property without payment, he thereby waives the implied condition, and relies upon the responsibility of the vendee as his means of obtaining payment. And, in any such case, it is a question of fact whether the implied condition was waived, and if a jury or justice find that it was waived, it is very clear that a tona fide purchaser would be protected. See Parker v. Baxter, 86 E. Y. 686 ; Oshorn V. Oantz, 60 id. 540. It is evident, however, that such a transaction differs essentially from a sale in which it is expressly agreed that no title to the property shall pass until the purchase- price is paid. In such a case the delivery of the property would be entirely consistent with the agreement, and the courts have clearly established the general rule that, in such cases, neither the vendee nor his creditors or voluntary assignees, nor persons having notice of the condition, will get any title until the price is paid. Where goods are sold and are to be paid for in cash on delivery, if the vendor waives the condition, and delivers the goods without the money, he then transfers the possession, and intends to transfer the title to the goods, and he at least impliedly consents to look to the personal credit of the vendee for payment. In that case it will be seen that the vendor intended to part with the title to the property, as well as to transfer its possession to the vendee, and if he wished to protect his claim by a lien upon the property, or to obtain any other security for his money, it was his duty to have taken the proper steps for that pur- pose. But, in those cases in which it is expressly agreed that the title shall not pass until payment of the purchase-price, there is no inten- tion that the title shall pass with the possession, as in the other case mentioned, and if the title does pass, it must happen without the con- sent of the vendor, since his intention was to retain the title until he received the purchase-price. If property is stolen from the owner, the thief cannot transfer any title, even to a hona fide purchaser. Hoffman v. Carow, 22 Wend. 285 ; Breckenridge v. McAfee, 54 Ind. 141 ; Bassett v. Spofford, 45 N. Y. 387 ; S. C, 6 Am. Kep. 101 ; Zink v. People, 77 JST. T. 114, 121. See Pease v. Smith, 61 id. 477. The reason is this: the owner did not consent nor intend to part with the title to his property, and the purchaser from the thief must beware of whom he purchases, 5 34 SALE. Conditional sales, and sales by vendors without title. or submit to the consequences whicli result from his want of care. And when property is sold upon condition that the title shall not pass until it is paid for, the purchaser from such a vendee should be careful to know whether he will get a title. There is generally an implied war- ranty of title, and if such a purchaser buys from a responsible person, he will not meet with any loss. It may be said, however, that a hona fide purchaser from siich a conditional vendee ought to be pi'otected, because the possession of the property is transferred to him by the ven- dor. But that circumstance is not of itself sufficient to deprive the real owner of his property. A mere transfer of the possession of | the property is not sufficient to authorize a person to regard the pos- / sessor as the owner of the property, as against one who is its actnalj owner. Govill v. Hill^ 4 Denio, 323 ; Collins v. Halli, 20 Hun, 246 ; Farmers and Mechanic^ Nat. Bank v. Aikvnson, TAl IST. Y. 587 ; McGoldriok v. WilUts, 52 id. 612. See Ba/rnard v. Carnpbell, 55 id. 456 ; 14 Am. Eep. 289. It is no answer to this to say that the transfer of the possession enables the possessor to obtain greater credit than lie would otherwise have ; because if a mere possession would enable the possessor to trans- fer a title to a hona fide purchaser, there would be no safety in bail- ments or mortgages of property, since the bailee or mortgagor could, under such a rule, transfer a title which he never had, and the real owner might be deprived of his property without his consent. Yol. I, 296. The only ground on which it can be held that on a conditional sale tbe vendor can transfer the title of the property to a hona fide pur- chaser is, that public policy requires some such rule. A thief cannot transfer a title, nor can a bailee or mortgagor of property after for- feiture, unless it is the mere equity of redemption. And it is a rule of most extensive application, that no person can transfer any greater title than he himself has to the property transferred. Anderson v. Nicholas, 5 Bosw. 121 ; JDows v. Perrin, 16 N. T. 325 ; Saltus v. Everett 20 Wend. 267 , 275 ; Covill v. Bill, 4 Denio, 323, 327 ; Brower v. Peahody, 13 N. T. 121 ; 2 Kent's Com. 324 original page ; Whistler v. Forster, 14 C. B. (N. S.) 248 ; Peer v. Humphrey, 2 Ad. & El. 495 ; Ballard v. Burgett, 40 N. T. 314. The only exceptions to this rule relate to negotiable instruments and bank bills. There is no greater hardship in requiring a purchaser to beware of the title he gets when he purchases from one who has purchased conditionally, than there is in those cases relating to stolen property, or to purchases from bailees or mortgagors. No person can transfer title to the prop- erty of another unless the owner has clothed him with authority, real SALE. 35 Conditional sales, and sales by vendors without title. or apparent, so to do. McGoldrich v. Willits, 52 N. Y. 612. And an Tinautliorized sale, although for a valuable consideration and without notice vests no higher title in the vendee than was possessed by the vendor. Weaver v. Barden, 49 N. Y. 286. But if the rightful owner has invested another with the usual evidence of title to property, or an apparent authority to dispose of it, he will not be allowed to make claim against an innocent purchaser for a valuable consideration, dealing- upon the faith of such apparent ownership or right of disposition. lb. DrisGollY. West Bradley cfe Ca/rtj Mam,uf. Go., 59 N, Y. 96 ; McNeil V. Tenth National Bank, 46 id. 326 ; S. C, 7 Am. Eep. 341 ; Moore V. Metropolitan National Bank, 55 N. Y. 41 ; S. C, 14 Am. Eep. 173 ; Armour v. Michigan Central R. R. Co., 65 N.Y. Ill; S. C, 22 Am. Rep. 603; Bostwick v. Dry Goods Bam,k, 67 Barb. 449. Dows V. Kidder, 84 IST. Y. 121; Pa/rher v. BaxUr, 86 id. 586. But two things must concur to create an estoppel by which an owner may be deprived of his property by the act of a third person without his as- sent. First. The owner must clothe the person assuming to dispose of the property with the apparent title to, or authority to dispose of it. Second. The person claiming the estoppel must have acted and parted with value upon the faith of such apparent ownership or authority, so that he will be the loser if the appearances to which he trusted are not real. Barnard v. Campbell, 55 N. Y. 456 ; S. C, 14 Am. Eep. 289. It is only where the owner has by his own affirmative act conferred the apparent title and ownership upon another, upon the faith of which the property has been purchased for value, that he is precluded from asserting his real title. Davis v. Bechstein, 69 N". Y. 440. Property is sometimes purchased by a vendee who obtains it by practicing a gross fraud upon the vendor. In such cases a iona fide. purchaser from such a fraudulent vendee will get a perfect title, if the vendor delivered the possession, and intended to transfer the title to the! property. Paddon v. Taylor, 10 Abb. (N. S.) 370; S. C, 44 N. Y. 371; Hodge v. Sexton, 1 Hun, 576 ; S. C, 4 Sup. Ct. (T. & C.) 54. In such cases _ the vendor intends to part with the title, and if he is deceived he must bear the loss as against a bona fide purchaser; although the vendor may recover the property as against the fraudulent vendee, or his creditors, or voluntary assignees, etc. The reason of this rule is, that a sale of this kind enables the fraudulent vendee to perpe- trate a fraud in which an innocent third person, or the original vendor must be loser, and since the latter put it in the power of the fraudulent vendee to commit such a fraud, it is proper that the loss should fall upon him who had it in his power to protect himself and others from 36 SALE. Delivery of the property sold. loss. If one buys a chattel conditionally and obtains possession by fraudulent representations, and then sells to an innocent purchaser, it is held that the title vests in the latter. Yaughn v. Hopson, 10 Bush (Ky.), 337. But the owner of property, which has been tortiously taken from him, is not estopped from reclaiming it by the fraudulent act of the tortious taker to which he was not a party, and which he in no way aided ; to create an estoppel he must have enabled the wrongdoer to perpetrate the fraud. Marvne Bank v. Fish, 9 Hun, 363. S. C. Yl N. Y. 353; Barnard v. Campbell, 65 Barb. 286; S. C, 55 E". T. 456 ; 14 Am. Eep. 289. And see, Voorhees v. Olmstead, 3 Hun, T44 ; S. C, 6 Sup. Ct. (T. & C.) 1Y2 ; 66 N. Y. 113. § 10. Delivery of the property sold. It has been already shown that the title to personal property may be legally transferred without an actual delivery of the articles sold, or of any portion of them, and also that there may be a delivery of personal property under a contract of sale without passing the title to the property. A delivery of the property sold may be necessary to pass the title for the reason that the parties have either expressly or impliedly made the dehvery an essential part of the contract of sale. So the delivery of all or a part of the property sold, may be necessary to satisfy the statute of frauds and give validity to the contract of sale. If the contract relates to the sale of property, for a price under $50, or if the contract of sale is in writing properly signed by the parties or their lawful agent, or if at the time of the sale the vendee pays some part of the purchase-money, a delivery will not be necessary to satisfy the statute. Thus, if a person offers to sell a cow to another person for $25, payable in six months, and the proposition is accepted, the title will pass though the money is not paid nor the cow delivered, if such was the intention of the parties. The requirements of the statute of frauds will be con- sidered in a subsequent section. There are some questions to be considered in respect to the place, and mode of delivery, and what will be a sufficient delivery under the con- tract of sale. The manner of delivery must depend upon the contract of the parties, .^ the nature of the subject of sale, and its situation at the time of the sale. If the goods are ponderous or bulky, a manual delivery is un- necessary. It is enough that they are placed in the power of the vendee. Hay den v. Demets, 53 N. Y. 426. A tender of a warehouse receipt with an offer to pay storage and charges is sufficient. lb. Wilkes v. Ferris, 6 Johns. 335. See BeRidder v. McKnight, 13 id. 294. A. bought the boards which were to be made out of a certain quan- SALE. 37 Delivery of the property sold. tity of logs in the possession of B. and to be paid for at a stipulated price per hundred feet when the boards should be sawed. The boards were sawed, piled and notice given to the purchaser, and it was held that considering the nature of the article sold, the delivery was suf- ficient to render the sale valid, and to transfer the title to the purchaser. Bates V. Conkling, 10 "Wend. 389. See Woodford v. Patterson, 32 Barb. 630. On the 8th of December, 1848, the plaintiff bargained with W. a tan- ner for the purchase of fifteen sides of harness leather, which were then in W.'s shop in an unfinished state, at a certain price per pound when finished. The plaintiff paid "W". $30, as the probable value of the leather, and if it should exceed that amount the plaintiff was to pay the excess. On the 18th of December, "W. notified the plaintiff that the leather was finished, and desired him to call and select the sides he had purchased. The next day the plaintiff went to W.'s shop and took away five sides. The plaintiff, and W.'s servant, by W.'s direction, selected nine sides and put them by themselves in the middle of the shop, and some others which -were hung up. The sides remained to be cleaned, etc., which was about three hours work, and then W.'s servant was to send them up to the plaintiff. After this, and during the same day, W. sold all his property to the defendants, who took possession of the shop and the leather in question. It was held that the delivery of the leather to the plaintiff was complete, and transferred the title to him, and that he coTild recover the value of it from the defendants who had refused to give it up. Brewer v. Salisbury, 9 Barb. 511. Where merchants residing in the city of New York receive an order for goods from persons residing at a distance, no particular directions being given as to the manner in which the goods shall be forwarded, and the vendors proceed to select the goods .ordered, and a portion of them, after being packed in boxes, is placed on board of a vessel, for transportation, the carman taking receipts from the master of the ves- sel for each load, no person but the shipper is entitled to a bill of lading. And if the shipper is also the holder of the receipts, he may direct to whom the bill of lading shall be made out ; or in other words, to whom the goods shall be deliverable. And until he does so, the right of pos- session remains in himself. Accordingly, where goods were thus placed on board of a vessel for transportation to the purchaser's place of resi- dence, and receipted for by the master ; it was held, that there was not such a delivery to the purchasers as rendered the goods liable to betaken by virtue of an attachment, issued and executed before the vessel sailed, 38 SALE. Delivery of the property sold. on the ground that the purchasers were non-resident debtors. Jones v. Bradner, 10 Barb. 193. If the vendee of goods orders them to be forwarded bj a carrier, though he does not name him, a delivery to a carrier will enure as a constructive delivery to the vendee, and thus satisfy the count for goods sold and delivered. Hague v. Porter, 3 Hill, 141. But a delivery to a carrier, without the consent of the vendee either express or implied, will not enure as a delivery to the latter. lb. Everett v. Parks, 62 Barb. 9. Nor will a delivery to a general carrier not designated or selected by the vendee constitute such a delivery and acceptance under the statute of frauds as to pass title to goods of more than $50, in value, sold by a verbal contract. Podgersr. Phillips, 40 N. Y. .519. Where a vendor sends goods by a carrier with express directions to collect the price on the delivery of the goods, this is not such a delivery to the purchaser as will pass the title in the goods to him until the carrier has completed the delivery ; and if the goods are lost or destroyed on their transit, before delivery to the purchaser, he will not be liable for the price. Baker v. Bouroioault, 1 Daly, 23. A delivery of goods by a vendor to a carrier selected by the purchaser, pursuant to directions, is a good delivery to the latter. Wilcox Silver Plate Go. V. Green, 72 N. Y. 17 ; Glen v. Whitaker, 51 Barb. 451 Cross V. O'Ponnell, 44 N. T. 661 ; Krulder v. Ellison, 4=7 id. 36 S. C, 7 Am. Rep. 402 ; Pacific Iron Works v. Zong Island P. P. Co. 62 N. T. 272. But a delivery of the goods to a carrier other than the one selected by the vendee will not be a delivery to him. Pills v. Lynch, 3 Eob. 42. The property in goods, sold in bond at ISTew York for exportation to Canada, passes to the purchaser upon delivery to a carrier selected by him, although they remain subject to a lien for duties, and to the cus- tody of the officers of the customs iintil authority to pass them is received at the port of exportation, which authority the vendor volun- teered to obtain. Waldron v. Pomaine, 22 N. Y. 368. Where the owner of property authorizes a broker to sell it, and the property is at the time in bond and afloat, and such broker contracts to sell it for cash at a specified price per ton, " to be delivered alongside of the ship," it is essential to a legal delivery of it, that such entries be made by the vendor at the custom house, and that such documents be furnished by him as will confer upon the purchaser the power to control it. Where, in such a case, such vendor, thoiigh requested to do so, wholly neglects to make such entries, or to furnish such documents, and by reason thereof the property is not placed within the actual and SALE. 39 Delivery of the property sold. legal control of the purchaser, the vendor cannot recover from the pur- chaser the contract price. Zachrisson v. Pop^pe, 3 Bosw. 171. "Where a delivery is apparently absolute, and without any contempo- raneous declarations qualifying it, the onus of proving the delivery conditional, vests upon the vendor. If no such proof is given, the delivery will be deemed al)Solute, and title to the goods will vest in the purchaser. Caldwell v. BarUett, 3 Duer, 341 ; Smith v. Lynes, 5 N. T. 42. See Parker v. Baxter, 86 id. 586. When the time for the delivery of property is fixed by the contract, in express terms, there can be little difficulty as to the time of perform- ance. When no time is specified in the contract, the vendor may tender a delivery of the property, and demand payment immediately ; and so in like manner the vendee may tender the price and demand an immediate delivery of the property. The time for delivering prop- erty sold, is sometimes fixed by the happening of some future event. Where a quantity of cotton was sold in New York, and it was to be delivered on its arrival at New York from New Orleans, at any time between two specified dates ; it was held that the vendors were not chargeable for the non-delivery until its arriwil in New York, and that the specification of the time in such a case is merely a limitation fixing the period beyond which neither of the parties are bound by the contract, and not an agreement that the cotton shall at all events be delivered by the specified day. Ezcssell v. Niooll, 3 Wend. 112. And where a portion of the cotton arrived at the port of New York before the last specified day, but the balance had not arrived ; it was held that the vendor was not bound to deliver that portion of it which had ar- rived; because the vendee is not bound to receive, nor is the vendor obliged to deliver any quantity less than the whole. Id. The defendant, in October, 1845, made a contract to deliver to the plaintiff a canal boat load of oats, '' on or about the first of Novemler nextP In an action to recover damages for the non-delivery of the oats ; it was held that the measure of damages was the difference be- tween the contract price and the market value of the oats within a reasonable time after the 1st of November. Kipp v. Wiles, 3 Sandf. 585. To warrant a recovery upon a special contract to pay for goods to be delivered within a certain time and at a certain place, they must all be tendered within that time and at that place. A part delivery and acceptance, some before and some after the time, will not main- tain the action. DoAjenport v. Wheeler, 7 Cow. 231 ; and see Mead v. Deqolyer, 16 Wend. 632. A party contracting to deliver a quantity of lumber at a given day, at a certain price per foot, to be paid for on 40 SALE. Delivery of the property sold. delivery of the whole, but who delivers only a part by the day specified, cannot recover for the part delivered, though it be used by the vendee. Paige v. Ott, 5 Denio, 406. And where, in such a case, after the day had passed, the parties agreed that the contract should be considered performed on the delivery of another specified quantity of lumber at a still future day, and a portion of the lumber specified in such new contract was delivered and used by the vendee, but it was not all de- livered ; it was held that there could not be a recovery for the lumber delivered under either contract. lb. ; Catlm v. Tobias, 26 N. T. 217. The plaintiffs, by a written contract made on the 3d of April, sold to the defendants in New York, a quantity of English linseed oil, " to arrive per ship Marcia from London, sailed on or about the IMh of March, ^dt. ; " it was held that the statement in the contract as to the time of sailing was a mere representation and not a warranty, and be- ing made without fraud, that the defendants were boimd to accept and pay for the oil, although the vessel did not sail until the 26th of March, and her arrival in fact was thereby delayed. Hawes v. Lawrence, 4 N. T. 3i5. And it was further held, that evidence to show that the spring trade in oil had ceased when the vessel arrived, and that it would be subject to deterioration by being kept until the fall trade should commence was not admissible in behalf of the defendants, in an action brought against them on the contract to recover the price. lb. A. contracted to sell to B. a specific cargo of wheat, which was de- cribed in the bought and sold note as " shipped per Diletta Nimbella, as per bill of lading, dated September or October," and as being all on board of the vessel at the date of the contract ; and it was held, that this did not necessarily entitle the buyer to rescind the contract because it turned out that the wheat was not all shipped before the bill of lading was given. Qattorno v. Adams, 12 J. Scott (N". S.), 560. Where a person contracts to purchase goods, which, at the time, are on board of a vessel at sea, and expected to arrive, it is his duty to re- ceive such goods within a reasonable time after notice of their arrival, and a tender of the goods at the place designated by him for the deliv- ery of them. Dibble v. Oorbett, 5 Bosw. 202. "Where such purchaser refuses to accept a delivery within a reasonable time, he is liable to the vendor for the damages necessarily caused by such delay. lb. Although the contract be made in such form that the title to the prop- erty does not pass until the goods are delivered, yet the contract being valid and obligatory, and the purchaser having accepted the goods un- der it, it is no answer to the claim for damages for delaying an unrea- SALE. 41 Delivery of the property sold. sonable time to receive them, that the title of the purchaser does not become vested until the goods are delivered and accepted. Id. The time for the delivery may be left optional vfith either party, and if the person who has the option gives the other party a reasonable notice, and offers to perform on his part, the other party will be bound to com- plete the contract. Oenin v. TompTcins, 12 Barb. 265. A party contracting to deliver certain goods "on or before" a given day, at the option of the buyer, can be guilty of a breach of contract only on that day, unless a previous demand is made by the buyer. Phelps V. MoOee, 18 111. 155. And he has the whole of that day to make delivery. Adams v. Dale, 29 Ind. 273. But see Coddington v. Pahologo, L. R, 2 Exch. 193. As it respects the hour up to which the vendor can make a valid delivery, on the last day fixed by the con- tract, it seems that the purchaser is bound to accept the goods, if they are tendered to him at such " a time," on that day, as will admit of their being examined by and completely delivered to him before mid- night. Startup V. McDonald, 6 Man. & Gr. 593. But where day- light is required for the proper examination and assortment of the goods tendered, time should be given to the vendee to make such ex- amination before sunset. Croninger v. Crocker, 62 N". T. 151. In respect to the mode of delivery, much depends upon the charac- ter of the thing delivered. Delivering gold upon a contract for the sale of it, is precisely analagous to the payment of a debt payable in gold, and can only be accomplished by putting it in the actual possession and control of the vendee. Merely placing it where the vendee may by possibility obtain possession and control of it is not sufficient. Kinne V. Ford, 43 N. T. 587. When chattels are to be delivered at a speci- fied time and place, the party who is to make delivery discharges his obligation by turning out the property at the specified time and place whether the other party is there to receive it or not. If he is absent, care must be taken to a reasonable extent, to preserve the property from loss or destruction. If of a kind that exposure to the atmosphere would destroy, it must be placed where it will be protected from it, and notice given to the vendee. If consisting of gold, bullion or dia- monds, it must not be left exposed to the depredation of thieves or other hazards from which it may be protected. It is not enough, where the article delivered is a gold check, that it be placed by the vendor on the counter or desk where the gold is customarily placed when delivered to the purchaser, at such a time and in such a manner that the pur- chaser might see and obtain possession of it, but it should be placed in his " conscious " possession. Id. 6 42 SALE. Delivery of the property sold. The place for the delivery of goods sold is usually fixed by the contract, and when that is done, the goods must be delivered at that place. So, sometimes the place of delivery is left optional with the purchaser, and, in that case, he must notify the vendor at what partic- ular place he wishes to have the goods delivered ; and no action will lie fur non-delivery, in such a case, until the notice is given. And when the vendor has an option to deliver goods at either of two speci- fied places, and he delivers them at one of the places, but without giv- ing the vendee notice of the delivery at that place, and the goods are lost in consequence of the want of notice, the loss will fall upon the vendor and he cannot recover the price of the vendee. Rogers v. Van Iloesen, 12 Johns. 221. The place of payment of a note paya- ble in salt or other portable article, is the residence of the creditor, where the time of payment is fixed by the contract, but the place is not designated. Goodwin v. Holbrooh, 4 Wend. 377. Under a contract for the delivery of specific articles at a particular place other than the residence of the promisee, it is the duty of the promisor after making the delivery at that place, to notify the prom- isee thereof, without delay. Until such delivery and notice, the prom- isee is not in a condition to object to the quality of the articles, nor can the title pass. Newcomh v. Cramer, 9 Barb. 402. If an article is to be delivered at a particular time and place, but it is delivered and received at another time and place without objection, strict performance wiU be deemed waived and the vendor may maintain an action for the pur- chase price. Baldwin v. Farnsworth, 10 Me. 414. A transfer of stock, made two days earlier than the time mentioned in the contract for the transfer is a sufficient compliance with the contract. Dodge v. Barnes, 31 Me. 290. But goods delivered prior to the time provided for by the contract will be at the vendor's risk unless there is an accept- ance by the vendee. Corriga/n v. Sheffield, 10 Hun, 227. On the sale of a lot of corn to a miller, if no place of delivery is fixed by contract, the delivery should be made at the mill of the purchaser. Field V. Eunh, 22 N. J. L. 525. A note given by one who keeps a saw mill or a lumber yard, for an amount "payable in lumber at cash price when called for," without mentioning day or place of payment, is payable at the mill yard. Bice V. Churchill, 2 Denio, 145. A special demand must be made there before suit brought. But a personal demand of the maker else- where would be good unless met by an offer to pay at the yard. In such case the holder would be bound to go to tte yard to receive pay- SALE. 43 Delivery of the property sold. nient. lb. A demand at the mill yard is suflficient, though neither the maker nor any one authorized to make the payment be found there. The maker of such an engagement is bound to be at the place of payment at all reasonable hours prepared to perform the agreement, lb. If upon such demand the maker be absent, it may be made of any one in charge, and if there be no such person, it may be made publicly at a reasonable time. lb. The defendant, who was a shopkeeper in New York city, agreed to pay a debt of $2,000 in merchandise out of his store, at 44 Maiden Lane, on demand, and the merchandise was to be sold and dehvered at not above twenty-live per cent of the cost ; and it was held that his obligation was discharged by delivering goods at prices twenty-five per cent above the cost to him, though that might be much more than twenty-five per cent above the wholesale market at the time of delivery ; that he was at liberty to continue selling his goods, with- out replenishing the stock, until a demand for a delivery in full of the contract ; and that so long as he retained sufiicient for that purpose, the other party could not complain that he was left to a selection from an inferior assortment, and goods less marketable than at the date of the contract ; that after reasonable notice to select his goods at the place named in the contract, the plaintiff was bound to accept them at any other reasonably convenient place to which they might be removed, and that a subsequent demand at the original place, or elsewhere, for a delivery at the original place was ineffectual ; that a refusal to deliver goods to the value of $20, which had been packed up in boxes for removal, after notice to the plaintiff to call for his pay at the defendant's original location, did not constitute a breach of the con- tract ; and the contract permitted a demand of merchandise in parcels. Buck V. Burl, 18 N. Y. 337. As a general rule, the store of the merchant, the shop of the mechanic or manufacturer, and the farm or granary of the farmer, at which commodities sold are deposited or kept, is the place of delivery, when the contract is silent as to place. But this rule ceases to be ap- plicable when the collateral circumstances indicate a different place. Bronson v. Oleason, 7 Barb. 472. Where the goods are a subject of general commerce, and are pur- chased in large quantities for reshipment, and the purchaser resides at the place of reshipment, and has, at such place, a storehouse and dock for that purpose, the place of business of the purchaser, is ordinarily the place of delivery. lb. Where a manufacturer of salt at L., execu- ted a writing as follows : " I have this day agreed with B. & 0. of 44 SALE. Delivery of the property sold. Oswego, to sell them one boat load of salt per week, and deliver the same to them m good order, equal to 400 barrels in each week, from this time to the first of November next," etc., it was held that npon the reasonable construction of the agreement, in connection with the surrounding circumstances, the salt was to be delivered at Oswego. Id. Under a contract for the sale of goods to be delivered on a future day in a certain city, the buyer has a right to fix the place of delivery in such city. Stillwell v. Bowling, 36 Mo. 310. If, at the time of sale, the goods be in the buyer's own possession and under his control, there is presumed to be no other place of delivoiy agreed upon. Warden v. Marshall, 99 Mass. 305 ; LaTce v. Morris, 30 Conn. 201. A sale of chattels, which are at the time upon the land of the seller, will author- ize an entry upon the land to remove them, if, by the express or implied terms of the sale, that is the place where the purchaser is to take them. Wood V. Mcmley, 11 Ad. & El. 34 ; DraTce v. Wells, 11 Allen, 141. In such case a license is implied, because it is necessary to carry the sale into complete effect. It forms a part of the contract of sale. McLeod v. Jones, 105 Mass. 403 ; S. C, 7 Am. Kep. 539. Proof of readiness to receive and ability to pay is essential where the time and place of the delivery has not been fixed by the contract, and where the place is to be designated by the party who is to receive the same. Isaacs v. If. Y. Plaster Works, 8 Jones & Sp. 277. The contract usually determines the quantity or number of articles which is required to be delivered in performance of the agreement. And when the contract specifies the particular quantity that is to be delivered, which can be determined by measuring, weighing, or count- ing, the terms of the contract must be complied with, by delivering the specified quantity, on the part of the vendor, and its acceptance by the vendee. The vendor has no right to deliver or tender any greater or any less quantity or number of articles sold, than is specified in the agreement; and the same rule applies to the vendee, who cannot demand the delivery of more, nor can he demand less, than the agreed quantity. The plaintiff, having received an order from the defendant to forward two hundred and fifty barrels of cement, sent by a carrier two hun- dred and sixty barrels, which the defendant refused to receive, saying, among other things, that there was more than he had ordered ; where- upon the carrier took the cement away, and stored it. Afterward, a letter was written to the plaintiff by the defendant, in which he placed his refusal to receive the cement on the sole ground that the quality was not good, but admitted that the order had been complied with as to the number of barrels. The plaintiff then brought an action for the SALE. 45 Delivery of the property sold. value of the two hundred and fifty barrels of cement, declaring as for goods iargained and sold, and for goods sold and delivered y but he was nonsuited at the trial, because the number of barrels ordered had been delivered to the carrier as part of a larger number, without being counted out or separated, and that thereupon no sale had taken place ; and it was held that the nonsuit was erroneously granted, and that the case should have been submitted to the jury ; for, if the entire quantity of cement delivered to the carrier, was intended as a mere compliance with the order, and was not sent for the purpose of charging the defendant with the excess, he was liable. Downer v. Thompson, 6 Hill, 208; reversing S. C, 2 id. 137. The Supreme Court held that the vendor ought to be nonsuited, because he had not delivered the precise number of barrels agreed upon ; while the Court for the Correc- tion of Errors reversed the judgment, on the ground that it was a question of fact to submit to the jury, whether the vendor intended to require the acceptance of more than the specified number of barrels. But both courts agreed upon the principle that the vendor must deliver the precise num- ber ordered, neither more nor less. Where manufacturers in the country sent an order to merchants in the city for a quantity of plough castings, to be forwarded on the carnal, and only a part of which were forwarded, and those by land carriage, by means whereof the expense of transportation was greatly increased ; it was held, in an action for the price of the property forwarded, that tlie plaintiffs were not entitled to recover without showing an acceptance of the goods by the defendants. Corning v. Colt, 5 Wend. 253. Where a contract was made for the sale and delivery, within a given period, of one hundred tons of pressed hay, to be paid for at a, speci- fied price per ton, part in advance, and the residue when the whole quantity should ie delivered, and the vendor, within the time stipu- lated, delivered only about one-half of the specified quantity, and then brought an action to recover for the quantity delivered at the stipulated price ; it was held that the delivery of the whole quantity was a con- dition precedent, and that the plaintiff was not entitled to sustain his action, the defendant, on his part, not having waived or prevented a full performance. Champlin v. Rowley, 18 Wend. 187. So, where a contract for the sale and delivery of personal property speci- fies the quantity, price and time of performanoe, the vendor is not entitled to recover under a quantum meruit for a portion less than the whole quantity agreed to be delivered, notwithstanding that the vendee has consented to a variation of the contract as to price and time of performance. Mead v. Degohjer, 16 Wend. 632 ; Paige v. Ott, 5 46 SALE. Delivery of tlie property sold. Denio, 406 ; Ghanvplin v. Rowley, 13 Wend. 258 ; affirmed, 18 id. 187. And see Vol. I, 221. When property is sold, which from its nature must be delivered in parcels, if the contract is to pay on delivery, payment cannot be de- manded until the whole is delivered. Timmons v. Nelson, ^^ Barb. 594; Solomany. Neidig, 1 Daly, 200 ; Oorrigan v. Sheffield, 10 Hun, 227 ; Kein v. Tripper, 52 IST. Y. 550 ; Baker v. Higgins, 21 id. 397; Williams v. Sherman, 48 Barb. 402. And where the vendor fails to make complete delivery according to the contract the vendee may re- turn the parcels first delivered. Oxendale v. Wetfierill, 9 Barn. & Cr. 3S6. And see Haines v. Tticher, 50 IST. li. 307. If the goods tendered exceed the quantity agreed upon, the buyer is entitled to refuse the whole, as, where an order was given for two dozen of wine and four dozen were sent, it was held that the whole might be returned. Hart V. Mills, 15 Mees. & Wels. 85. And see Gunlife v. Harrison, 6 Exch. 903 ; Rommel v. Wingate, 103 Mass. 327. On the other hand, if, un- der a contract to deliver a parcel of goods of a certain description, there be an essential deficiency in the parcel, such as would and ought to be regarded as material to the whole, the buyer is not bound to accept and pay for either the whole or a part. Wright v. Barnes, 14 Conn. 518 ; Wilson V. Wagar, 26 Mich. 452 ; Rockford, etc., R. R. Co. v. Leuh, 63 111. 288 ; Smith v. Lewis, 40 Ind. 98 ; Marland v. Standwood, 101 Mass. 470. There are some cases in which the vendor is excused from delivering the precise quantity, or indeed any part of the property agreed to be sold. Where a contract was made in New York for the sale of five hundred bales of cotton, on its arrival at New York from New Orleans, at any time between the date of the contract, which was the ninth day February, and the first day of June thereafter, to be paid for in cash on delivery, the cotton to be weighed, etc., the title does not pass in such a case ; and where a part of the cotton arrived within the specified time, but the remainder did not, it was held that the vendor was not bound to deliver any portion of the cotton. Russell v. Nicoll, 3 Wend. 112. Where the contract leaves it optional with the vendor to deliver any quantity without limit, or any quantity not less than a given one, and not exceeding another specified one, the vendor may, in the first case, deliver any quantity he chooses; and in the latter case he may deliver any quantity, not being less nor more than that specified in the contract. Disborough v. Neilson, 3 Johns. Gas. 81. See Quick v. Wheeler, 78 N. Y. 300. The same rule applies when the option as to SALE. 47 Delivery of the property sold. quantity is left to the vendee. And where the vendee has an option to increase the quantity of the articles to be delivered, on his giving a rea- sonable notice, between two specified dates he is bound to give notice before the last of the days specified. Topping v. Root, 5 Cow. 404. The quantity to be delivered is sometimes stated in the contract with the addition of the words " about, " " more or less, " etc., indicating that the quantity is not restricted to the exact number or amount speci- fied, but that the seller is to be allowed a reasonable latitude in the per- formance of his contract. See Moore v. CaTwpbell, 10 Exch. 323 ; Cockerell v. Aucompte, 2 0. B. (N. S.) 440 ; Pembroke Iron Co. v. Parsons, 5 Gray, 589. And the words " say about six hnndred, " in a contract for the sale of spars, were held to be words of expectation and estimate only, not amounting to an understanding that the quantity should be six hundred; and a tender of four hundred and ninety-six spars, which were all of the specified lot that met the requirements of the contract, was held to be a substantial performance by the vendor. MoGonnell v. Murphy, L. E., 5 P. C. 203. But the words "more or less," in a contract for the sale of twenty-three thousand feet of lumber, were held not to allow a variation of seven thousand feet. Graighton v. Comstock, 27 Ohio St. 548. A contract for the sale and delivery of a " cargo, " or " boat-load " of barley, of about nine thousand bushels, is an entire, indivisible contract. It cannot be sepa- rated into parts, and is incapable of part performance. Neither less nor more than a " cargo of barley " can be tendered as performance by the vendor. Nor is the purchaser bound to accept a cargo of less than about nine thousand bushels. Flanagan v. Dema/rest, 3 Rob. 173. See, also, Talmage v. White, 3 Jones & Sp. 218; Visscher v. Oreen- bank Alkali Co., 11 Hun, 159. In a contract for the sale and delivery of " sixty-five head of fat hogs, to weigh two hundred and twenty-five pounds and over, " it was held, in an action for refusing to receive the hogs, first, that the contract called for hogs weighing two hundred and twenty-five pounds each ; second, that parol evidence, to the effect that by custom this language was understood to mean that the hogs should average that, was not ad- missible. Cash V. Hinkle, 36 Iowa, 623. When the contract requires the delivery of an entire quantity as a condition precedent to the right to recover any thing, the parties may agree that a delivery of a portion of the property is sufficient, and in such case if the vendee accepts a portion of the property, and waives the delivery of the remainder, the vendor may recover for the quantity 48 SALE. Delivery of the property gold. actually delivered and accepted. Corning v. Oolt, 5 "Wend. 253 ; Downer t. Thompson, 6 Hill, 208. But in such cases the evidence must show clearly that the vendee agreed or consented to accept the quantity delivered, and waived a per- formance as to the residue. The plaintiff in such case cannot avail himself of an accoxint stated by the vendee, crediting the vendor with the quantity delivered at a stipulated price, and debiting him with a certain sum as damages sustained hj the failure of an entire per- formance, where he refuses to settle with the vendee on the basis of such account stated. Mead v. Degolyer, 16 Wend. 632. So where there is. a partial delivery within the time Hmited, and the vendee con- sents to an extension of the time upon condition that another specified quantity should be delivered, and the vendee delivered a part of the latter quantity, but failed to deliver the residue, it was held that there was no waiver, and that the plaintiff could not recover for either quan- tity delivered, although it had been used by the vendee. Paige v. Ott, 6 Denio, 406 ; Yol. I, 219, 227, 228. Where one agrees to sell and deliver a crop of corn in " merchant- able order," he is bound to deliver sound and ripe corn, and the vendee is not bound to accept any other. And where the defendant, by a written contract, agreed to sell and deliver to S. & M. his crop'of corn then growing on about thirty acres of ground, to be delivered in "mer- chantable order," it was held, that he was bound to deliver aU the merchantable corn that grew on the thirty acres, and no more ; and where the defendant claimed the right to deliver the whole crop, al- though it was conceded to have been of unmerchantable quality, and tendered the good and bad corn together, without proposing or offering to deliver any, except in that way, it was held that this was not a proper tender or offer of performance ; and that the purchasers were not bound to receive the corn tendered in fulfillment of the agree- ment, but might treat the contract as broken, and bring their action to recover the damages they had sustained. Hamilton v. Ganyard, 34 Barb. 204. Under a contract for the delivery of thirty thousand pounds of wool, "in good merchantable order," etc., a tender of a larger bulk, in par. eels, each containing wool, not within the description of the contract as to quality or condition, from which the vendee might, with great la- bor, select the quantity of the quality purchased, is an insufficient ten- der ; and a refusal to perform the contract by the vendor, except by a delivery of wool in bulk, the good and bad mingled together, requiring labor to separate them, is a breach of the agreement for which the ven- SALE. 49 Delivery of the property sold. dee will be liable in an action for damages. Groninger v. Crocker, 62 N. Y. 151. It was the duty of the seller, in such case, to assort the wool and separate that which would answer the description of the con- tract from that which was unmerchantable aud of an inferior quality, and to tender such only as the vendee was bound to accept. lb. See Gleveland v. Williams, 29 Tex. 204 ; Nicholson v. Bradford Union, L. E., 1 Q. B. 620. But upon a contract to sell and deliver fifty bales of cotton of the vendor's first picking, a tender of fifty-five bales, with a proposal that the vendee select out the fifty bales, is a substantial com- pliance with the contract. Davis v. Adams, 18 Ala. 264. The dis- tinction is obvious. In the one case the goods tendered are not all of the quality called for by the contract and call for labor in selection ; while in the other all the goods tendered answer the description of the contract, and the selection requires no labor. It has been held that where goods ordered were sent -packed in a crate with other goods not ordered, the mingling of the goods was a violation of the vendor's duty, although the two sets of goods were perfectly distinguishable. Levy V. Green, 8 EU. & Bl. 575. In every executory contract for the future sale and delivery of arti- cles of merchandise, the law will imply an agreement that the property bargained for shall be of merchantable quality ; and where one agrees to sell and deliver a crop of com in " merchantable order," he is bound to deliver sound and ripe corn, and the vendee is not bound to accept of any other. Hamilton v. Ganyard, 34 Barb. 204 ; 3 Keyes, 45 ; 2 Abb. Ct. App. 314. So, where the sale relates to property which is in existence, if the vendor represents of warrants it to be of any particular quality, he will be bound to deliver an article of the quality warranted, or respond in damages. But the vendee is at liberty to accept an article which is inferior to that which he purchased. And although, by the terms of a contract, an article agreed to be dehvered is to be of a merchantable quality, still if an inferior article be delivered and accepted, the pur- chaser, when called on for payment, is not entitled to a reduction from the contract-price, on the ground of the inferior quality of the article ; he must refuse to accept it, or if its inferiority be subsequently discov- ered, he must return it, or require the vendor to take it back. Sprague v. Blake, 20 Wend. 61 ; Hargous v. Stone, 5 N. Y. 73. It is well settled that, in cases of executory contracts for the sale and delivery of personal property, the remedy of the vendee to recover damages on the ground that the article furnished does not correspond with the contract, does not survive the acceptance of the property by 7 50 SALE. Delivery of the property sold. the vendee after an opportunity to ascertain the detect, unless notice has been given to the vendor, or the vendee offers to return the property. Reed v. Randall, 29 N. Y. 358. And see Hamilton v. Oanyard, 2 Abb.Ct. App. 314; S. C, 3 Keyes,45; Affirming S. C, 34 Barb. 204; KnoUaoh v. Krmsahnabel, 18 Minn. 300 ; Treadwell v. Reynolds, 89 Conn. 31; Cousiony. Chapman, L. R., 2 Sc. App. 250; Stafford y. Fooler, 67 Barb. 143 ; Greenthal v. Schneider, 52 How. 133. So, where a vendee has received and accepted under a contract of sale a portion of the goods contracted for, the fact that the goods so accepted were of a quality inferior to that called for by the contract does not authorize him to repudiate the contract altogether, and to refuse to accept the residue. He may demand goods of the stipulated quality, and if the balance when offered prove to be of an inferior quality, he may refuse to accept ; but if they are such as the contract calls for, he is bound to receive them. Calhen v. Piatt, 69 N. Y. 348 ; S. C, 25 Am. Eep. 203 ; reversing 8 Jones & Sp. 483. And see Watkins v. Paine, 57 Ga. 50. And the rule that an acceptance of property, under a con- tract of purchase, induced by fraud, and payment for the same with knowledge of the fraud, is a waiver of the fraud, and of all objections which might have been taken, founded thereon, is well settled. Sweet- man V. Prince, 20 N. Y. 224 ; Selway v. Fogg, 5 Mees. & Wels. 83; Vernal v. Vernol, 63 N. Y. 45 ; People v. Stephens, 71 id. 527, 557. See Willard v. Merritt, 45 Barb. 295. Where the sale is a conditional one, and the property is at sea on board of a vessel bound to the place of making the contract, if the property is of an inferior quality, so that the defendant is not bound to take it, yet if he receives a portion of the property before ascertaining its quality, and then refuses to accept or pay for it because it is not of the quality required by the contract, he will be bound to return the property to the vendor, on his demand, and if he is unable to return it, in consequence of having used it, he will be bound to pay for the property at the market- price at the time he received it. Shields v. Pettie, 41^. Y. 122. The question of acceptance is ordinarily one of fact. It is a question for the jury whether, under all the circumstances, the acts which the buyer does, or forbears to do, amount to an acceptance. Morton v. Tii- hett, 1 5 Q. B. 428. But where the uncontroverted facts afford no ground for finding an acceptance, or where the evidence is such that the court may feel bound to set aside a verdict so finding, it is the duty of the court to take the case from the jury. Howard v. Borden, 13 Allen, 299 j Stone V. Browning, 68 N. Y. 598. The plaintiff sold a hogshead of cider to the defendant, by sample, as good draught cider. After the SALE. 51 Dalivery of the property sold. arrival of the cask, the defendant, on the 28th of May, wrote as follows to the plaintifE : " The cider differs from the sample, and the little I have sold has been complained of in every instance ; and should this continue, I shall be obKged to return it to you." The plaintiff did not answer this letter until the 2'tth of June. The defendant, in trying to sell it, used twenty gallons, but finding it unserviceable, refused to pay for the rest, which he returned to the plaintifE. It was found as a fact, that the twenty gallons were more than sufficient to enable the defendant to test the quality of the bulk ; but it was held that the omission of the plaintiff to answer the letter of the defendant, of the 28th of May,, was evidence from which a jury might presume that the plaintiff acqui- esced in a further trial of the cider, and that the defendant had not so ac- cepted the bulk as to be liable to pay for the whole. iMoy v. Monflet, 5 Hurlst. & Norm. 229. If the vendor delivers an article of a quality superior to that required by his contract, he cannot require the vendee to pay more than the con- tract-price. An actual delivery of property sold is sometimes impossible at the time of making the contract of sale, and yet, it is frequently the case that the parties desire to transfer the title to the property although the possession cannot be immediately given. This may be done in various ways. If the property is, at the time of sale, incapable of actual de- livery, on account of its character or situation, the delivery of the bill of sale, or other evidence of title, is sufficient to transfer the title and possession to the vendee. Pratt v. Parhman, 24 Pick. 42 ; Morgan v. Smith, 29 Ala. 283 ; Trieler v. Andrews, 31 Ark. 163. The custom in the port of New York, upon the sale of grain is, that the purchaser selects a measurer, and the measurer so selected is ap- pointed by the board of measurers to perform the duty ; and where the measurement is, in fact, made by a measurer appointed by the board, the custom is substantially complied with, and it is immaterial whether the measurer is selected by the seller or the purchaser ; and when the quantity sold has been ascertained by such a measurement, and the pur- chaser has an order for the delivery of the grain, upon the storekeeper in whose custody it is, the delivery, so far as the seller is concerned, is complete. McOready Y.Wright, 6 Duer, 571. Where the goods are in the possession of a bailee of the vendor, the bill of sale gives an immediate and valid title to the purchaser without a formal delivery of the possession. The possession of the bailee be- comes that of the purchaser. Such a bill of sale is not merely a transfer of a right of action, but of the goods themselves, and gives an imme- 52 SALE. Delivery of the property sold. diate right to the purchaser as owner, to demand their restoration. Heine v. Anderson^ 2 Duer, 318. See SchoonmaJcer v. Vervalen, 9 Hun, 138 ; MoNama/ra v. Edmister, 11 id. 597. Where the owner of wheat, lying in mass in his warehouse, sold six thousand bushels of the quantity for a specified price, and executed to the vendee a receipt, acknowledging himself to hold the wheat subject to the purchaser's order, this is a sufficient delivery to pass the title with- out any other separation or delivery. KimberVy v. Patchin, 19 !N". Y. 330. A delivery of the receipt of the storekeeper for the goods, being the documentary evidence of the title, is tantamount to a delivery of the goods. See Hoyden v. Demets, 53 IST. Y. 426 ; Stokes v. Recknor gel, 6 Jones & Sp. 368 ; Russell v. Carrington, 42 N. Y. 118. And so is a delivery of the key of a warehouse in which the goods sold are deposited, and either mode transfers the title to the property. WilJces v. Ferris, 5 Johns. 335 ; Hollingworth v. Najpier, 3 Caines, 182 ; Beu- ford V. Schell, 55 Penn. St. 398 ; Packard v. Hunsmore, 11 Cush. 282 ; Gray v. Hams, 10 N. Y. 285. So the delivery of a shop, so separated from the realty as to be an article of personal property, may well be effected by the delivery of the key, although that delivery be made at a distance form the shop itself. Vining v. Gilbreth, 39 Me. 496. And the delivery of a sample, if accepted as a symbolical delivery of the? whole, or as a part delivery under an entire contract, will transfer the title to the whole. Simmons v. Swift, 5 Barn. & Ores, 857 ; Phelps v. Cutler, 4 Gray, 137. And especially, where the goods are ponderous or bulky, or the vendor has them not in his personal custody. Hinde v. Whitehouse, 7 East, 558 ; Wheeler v. Nichols, 32 Me. 233. And, in general, the transfer of any article which is a symbol or evidence of ownership, or the assertion of complete authority on the part of the vendee by acts consistent only with ownership, and assented to by the vendor constitutes a sufficient constructive delivery. Rickery .Gross, 5 N. H. 571. And see Anthony v. Wheatons, 7 E. I. 490 ; Hams v. Jones, 8 Houst. (Del.) 68 ; Long v. Knapp, 54 Penn. St. 514. B. . having agreed to make a wagon for M. the latter gave to L. a written order upon B. for such wagon, which order B. accepted and handed back to L. The wagon was afterward delivered to L. by B. upon the order ; it was held that this was an equitable assignment of the wagon to L., and that B. could not recede from the undertaking, and maintain an action against L. for the price of the wagon. Barber v. Lyon, 22 Barb. 622. "Where a valid executory contract is entered into for the purchase of a large quantity of flour of a specific quality, to be delivered at a future SALE. 53 Delivery of the property sold. day, a notice on the day fixed, of readiness to deliver, accompanied by accepted orders upon the party haviug the flour in store, with an ofEer to make an actual delivery, is sufficient. Stanton v. Small, 3 Sandf. 230. Where goods are ponderous or bulky, or cannot conveniently be delivered manually, the law does not require an actual delivery thereof, but only that they should be put under the absolute power of the ven- dee, or that his authority as owner should be formally acknowledged ; or that some act should be done typical of a surrender of them on one side and an acceptance of them on the other. lb. The law requires such delivery only as is consistent with the nature and situation of the thing sold. And where, in an action upon a contract for the sale and purchase of flour, brought by the vendor against the purchaser, it is proved that it is the usage for flour, in a storehouse or vessel, to be sold by accepted delivery orders, and to pass by the transfer of the orders from hand to hand, without actual delivery of the flour, such usage will be held to have entered into the contemplation of the parties, and to have constituted a part of the contract. lb. Where a vendor of flour, upon the purchaser's objecting to the manner of the tender of the flour (which was made by accepted orders of persons having it in store), offers to turn it out on the sidewalk, or to cart it to the purchaser's door, or to any other part of the city he will name, provided the pur- chaser will say he will take it, and the purchaser tells the vendor to do as he pleases, without telling him what to do, or whether he wiU take it, this is a sufficient tender on the part of the vendor. lb. But where flour was deliverable upon a day certain the delivery of an order by the seller to the buyer for flour on a barge, in the hold of which the flour is deposited, is not a compliance with the contract, there being no actual delivery or tender of delivery of the flour itself, on the day speci- fied. Suydam v. GlarTc, 2 Sandf. 133. Where the article sold is a quantity of iron in a bonded warehouse, it is not necessary that it should be brought to the purchaser in order to tender a delivery ; it is suf- ficient that a tender be made of the permit by which it might be ob- tained. Dunham v. Mamm,, 8 N. Y. 508 ; Dunham v. Pettee, 1 Daly, 112. A contract to deliver shares in a joint-stock company does not require the actual delivery of scrip certificates, which are the mere indicia of property, but the party contracting to deliver the shares sufficiently performs his engagement when he places the other in the position of being the legal owner of them. Hunt v. Ounn, 13 J. Scott (JST. S.), 226. Marking logs is an equivocal act, and may be for the purpose of taking possession, or merely for that of identity ; or it may be evidence of acceptance. Evans v. Harris,^ 19 Barb. 417. 54 SALE. Sale of articles to be manufactured. Where all the logs and boards designated by a particular mark are sold while afloat, a constructive or symbolical delivery only is required, and this may be done by the performance of any act which shows that the seller has parted with the right and claim to control the property, and that the purchaser has acquired that right. Boynton v. Yeazie, 2*1 Me. 286. Selecting and marking sheep in the possession of a third party, who is desired to retain possession of them for the purchaser, is a sufficient delivery to complete the sale and pass the property. Barney V. Brown, 2 Yt. 374. So where the seller pointed out certain cattle of his which were running with others in a pasture, and designated their price, which the purchaser agreed to take as they were, and at the stipulated price, it was held that this constituted a delivery of the cattle. Brown V. Wade, 42 Iowa, 647. See Sutton v. Ballou,4:6 id. 517. But •upon a sale of cattle alleged to be in the possession of a third party, if the cattle are not in such possession, the seller's order for them, addressed to such third person and delivered to the purchaser, will not effect a delivery of the cattle. Oojield v. Olark, 2 Col. T. 101. Where, on a sale of land, the vendor also agrees to purchase certain ponderous articles (a set of grist-mill stones) on the premises, and he then enters into possession of the land, the articles sold still remaining upon it, this is a sufficient delivery. Be Bidder v. McKnight, 13 Johns. 294. Whether a contract for a sale of chattels has been completed, when the agreement is a verbal one, is a question of fact for the jury, and the plaintiff ought not to be nonsuited, on the ground that the contract was not fully made out, if there is some evidence to prove the sale. lb. § 11. Sale of articles to be manufactured. Where an article agreed to be sold is yet to be manufactured, the title does not pass until there has been some act on the part of the vendor which amounts to a delivery, and some act on the part of the vendee which amounts to an acceptance. Comfort v. Kiersted, 26 Barb. 472. To make a sale complete so as to vest title in the vendee, the thing sold must not only be in existence, but it must be identified. lb. Where D. agreed to manufacture for K. a quantity of shingles, at a specified price per thousand, which shingles should he the property of K., as fast as they were made, it was held, that the contract conveyed no present right of property to K. in the shingles, but that, it being an agreement to be executed in futuro, he had only a right of action against D. for not executing the agreement ; and also, that before the title would vest, even after the shingles were made, something must be done which would amount to at least a constructive delivery. lb. SALE. 55 Sale or delivery procured by fraud. Where a party orders a thing to be made, such as a carriage or any other article, it does not become his property until it is delivered into his possession, even though he may have paid for it in advance, or fur- nished a large portion of the materials of which it is constructed ; but daring its production it is, and after it is finished it continues to be, up to its delivery, the property of the person who produced it. Wilkin s V. Bromhead, 6 Man. & Gr. 963; Mclntyre v. Kline, 30 Miss. 361; Halterline v. Rice, 62 Barb. 593 ; Parsons v. LougJcs, 4 Robt. 216 ; S. C. affirmed, 48 N. Y. 17 ; 8 Am. Eep. 517; First Nat. Bank v. Crowley, 24 Mich. 492 ; Fairfield Bridge Go. v. Mje, 60 Me. 372 ; School District v. Dauchy, 25 Conn. 530 ; Andrews v. Burant, 11 K Y. 35. In this State it has been established by a long course of decisions, that an agreement for the sale of any commodity not in existence at the time, but which the vendor is to manufacture or put in a condition to be delivered, such as flour from wheat not yet ground, or nails to be made from iron belonging to the manufacturer, is not a contract of sale. Cooke V. Millard, 65 N. Y. 352 ; S. C, 22 Am. Eep. 619. But if the chattel contracted for is at the time in existence the contract is one of sale, although the vendor is to do some work upon it to adapt it to the uses of the vendee. lb. Where raw materials are delivered to be manufactured, and the manufactured article is to be divided between the respective parties in certain proportions, the transaction is but a bailment, and the owner of the materials retains his title to them until his contract is completely executed. Pierce v. Schenok, 3 Hill, 28 ; Bightmyer v. Raymond, 12 Wend. 61 ; FosUr Y.Pettibone, 7 B". Y. 433 ; Hyde v. Cookson, 21 Barb. 92 ; Gregory v. Stryker, 2 Denio, 628. § 12. Sale or delirery procured by fraud. There is another class of cases which is somewhat analogous, though the rule is widely differ- ent in the two cases. When a sale is procured by the fraud of the vendee, it may be laid down as a universal rule, that, as between vendor and vendee, the latter will not acquire any title to the property which he may have obtained by his frauds, provided the vendor elects to re- scind the sale, and seeks to recover the property. Hunter v. Hudson River I. c6 M. Co., 20 Barb. 494 ; Ash v. Putnam, 1 Hill, 302 ; Root V. French, 13 Wend. 570; Williams v. Birch, 6 Bosw. 299; Stevens V. Brennam, 79 H". Y. 254. A sale and delivery of goods, procured through a false representa- tion of the vendee in regard to his solvency and credit, passes no title as between the parties ; and the vendor may maintain either trover or 56 SALE. Sale or delivery procured by fraud. replevin as against sucli vendee. Gm-y v. Hotaling, 1 Hill, 311 ; Olm- stead V. Hotaling, id. 317 ; Ash v. Putnam, id. 302. The riglit of a vendor, who has been induced to part with his goods by the fraud of the vendee, to reclaim them within a reasonable time, can only be defeated by one who has paid value, or made advances or incurred responsibilities upon the credit of the apparent title of the vendee, and without notice of the fraud or knowledge of circumstances to put him upon inquiry. Ba/mard v. Campbell, 58 N. Y. 73 ; S. C, 17 Am. Kep. 208. Where a fraudulent vendee makes a general assignment for the benefit of his creditors, and the property so fraudulently obtained is delivered to the assignee, a joint action may be maintained against such vendee and his assignee by the defrauded vendor for the recovery of the property. Niohols v. Michael, 23 N. Y. 264. To avoid the sale in such a case, it is not necessary that the fraudulent representa- tions should be such as would sustain an indictment for obtaining goods by false pretenses. lb. But to justify a vendor in treating a sale of personal property as void, and in retaking the property on the ground of false and fraudulent representations, such representations must be made to him, or made for the purpose of being communicated to him, and with the design of influencing his conduct. Yan Kleeok v. Le Hoy, 37 Barb. 544; S. C, 4 Abb. Ct. App. 479; 4 Abb. (K S.) 431; 4 Trans. App. 295. If such false statements are made to a stranger, without any intent to influence the conduct of the plaintifi^, this can- not be made a pretext for avoiding a sale made by the plaintiflE him- self, lb. But where goods are purchased with a preconceived design of not paying for them, and with a knowledge by the vendee that he is insol- vent at the time of the purchase, this is such a fraud as will invalidate the sale as between the vendor and vendee. Ash v. Puimam, 1 Hill, 302 ; Wright v. Brown, 67 N. Y. 1. And where the sale is procured through the fraud of the vendee's agent, the rule is the same. Olmstead v. Hotaling, 1 Hill, 317. See Zing V. Fitch, 2 Abb. Ct. App. 508 ; S. C, 1 Keyes, 432. Ko one can enforce a contract which his agent has fraudulently obtained, al- though he neither authorized nor had any notice of the fraud prior to the execution and delivery of the contract. Gassard v. Hinman, 6 Bosw. 8. Upon a purchase of goods upon credit, the insolvency of the purchaser, and his concealment of the fact, is not suiScient of itself to vacate the purchase for fraud. Hall v. Naxjlor, 6 Duer, 71 ; BuoTcley Y. Artcher, 21 Barb. 585 ; Mitchell v. Worden, 20 id. 253. The law SALE. 57 Sale or delivery procured by fraud. does not, in ordinary cases, impose upon a purchaser of property the duty of disclosing his circumstances to the seller, at the time of the sale, or before it, however desperate his pecuniary circumstances are to his knowledge. Mitchell v. Warden, 20 JBarh. 253 ; BucTdey v. Artcher, 21 id. 585 ; Mohols v. Finner, 18 N. Y. 293 ; Wright v. Brown, 67 id. 1 ; Brown v. Montgomery, 20 id. 287. If the vendee is carrying on his business as usual, and is insolvent to his own knowledge, lie may nevertheless purchase goods without dis- closing his circumstances. But if the vendee has broken up his busi- ness, and made a general assignment in favor of his creditors, it is his duty to disclose these facts to the vendor, and a violation of that duty amounts to a fraud, which will avoid the sale as between vendor and vendee. Mitchell v. Wo7'den, 20 Barb. 253 ; BucTdey v. Artcher, 21 id. 585. And if there is a condition of known insolvency undisclosed, and an existing intention on the part of the purchaser not to pay for the property, fraud may be affirmed. Wright v. Brown, 67 N. Y. 1 ; Nichols T. Michael, 23 id. 264 ; Hennequim, v. Naylor, 24 id. 139. A trader who has become embarrassed and insolvent, and yet has reason- able hopes that by continuing in business he may retrieve his fortunes, may buy goods on credit, making no false representations, without the necessary imputation of dishonesty. Nichols v. Pinner, 18 N. Y. 295 ; Brown V. Montgomery, 20 id. 287 ; Johnson, v. Monell, 2 Keyes, G55 ; Chaffee v. Fort, 2 Lans. 81. But no case can be found holding that a trader who was hopelessly insolvent, who knew that he could not pay his debts, and that he must fail in business and disappoint his creditors, could honestly take advantage of a credit induced by his apparent prosperity, and thus obtain property that he had every reason to be- lieve he could not pay for. In such a ease he does an act the necessary result of which will be to cheat and defraud another, and the intention to cheat will be inferred. Anonymous, 67 IST. Y. 598 ; affirming S. C, sub nom. Boelling y. Duncan, 8 Hun, 502. See Devoe v. Brandt, 53 E". Y. 463 ; Chaffee v. Fort, 2 Lans. 81. Such a fraud may be as easily consummated by a suppression of the truth as by the suggestion of a falsehood, and the law does not require a false affirmation as the only basis upon which to prove the fraud. Devoe v. Brandt, 53 N. Y. 462. Where a sale is alleged to have been procured through fraud, by means of the declarations which the vendee has made about his cir- cumstances, his declarations, while making purchases at other places about the same time, are admissible in evidence, to show a fraudulent intent in the alleged fraudulent purchase. Gary v. Hotaling, 1 Hill, 58 SALE. Sale or delivery procured by fraud, 311; Olmstead v. Hotaling, id. 317; Hall v. Naylor, 6 Duer, Yl ; Hathorne v. Hodges, 28 N. Y. 486 ; NaugatucTc Cutlery Co. v. Bab- cook, 22 Hun, 481 ; Hall v. Ei-win, 60 Barb. 349 ; Miller v. Bwrler, 66 N. Y. :.58 ; Van Eleeh v. Leroy, 4 Abb. Ct. App. 4T9 ; S. C, 4 Abb. (N. S.) 431 ; 4 Trans. App. 295 ; King v. Fitch, 1 Keyes, 432 ; Her- sey -V. Benedict, 15 Hun, 283. But evidence cannot be given to show what representations were made by the purchaser to another firm, in respect to his pecuniary cir- cumstances about the time of the purchase from the plaintiff, when it is not sliown or pretended that he purchased any goods of that firm on credit, or that he defrauded or intended to defraud such firm. Murfey V. Brace, 23 Barb. 561 ; Durbrow v. McDonald, 5 Bosw. 131. The creditors of a fraudulent vendee will not get any title as against the vendor, when such creditor obtains his title by a levy and sale on an execution issued against the property of the vendee for an antece- dent debt. Mowrey v. Walsh, 8 Cow. 238 ; Ash v. Putnam, 1 Hill, 302 ; Acl'sr v. Campbell, 23 Wend. 372 ; Devoe v. Brandt, 53 N. Y. 462. See Naugatuch Cutlery Co. v. Babcock, 22 Hun, 481. So, the vendor may reclaim the property in such a case, if the vendee has turned it out to his creditor in payment of an antecedent debt. Boot V. French, 13 Wend. 570 ; Stevens v. Brennan, 79 E". Y. 254. So, if such fraudulent vendee has mortgaged the property to secure an antecedent debt, the claim of the vendor will be preferred. lb.; Wood- hum V. Ghamberlin, 17 Barb. 446. So, a transfer of the goods by such vendee to an assignee in trust for the benefit of creditors will not give any title to the assignee as against the vendor. Nichols v. Michael, 23 JSr. Y. 264 ; Hall v. Naylor, 6 Duer, 71 ; Stevens v. Hyde, 32 Barb. 171 ; Lacker v. Bhoades, 51 N. Y. 641. Where A. and B. applied to 0., to purchase goods for A., who was recommended by B., and by their direction the goods were sent to B.'s house, Avho afterward took a bill of sale of them from A., who ab- sconded without paying C. ; it was held that C, in an action of trover against B., might go into evidence to show that the goods had been ob- tained from him fraudulently, and by a collusion between A. and B., under a pretense of a purchase, for fraud would avoid the contract of sale ; and that the plaintiff might give evidence of subsequent acts of collusion and fraud by A. and B. to obtain goods from other persons, in order to show the previous intentions of A. and B., which the jury might infer from circumstances. Allison v. Matthieu, 3 Johns. 235. The law is well settled as to the rights of bona fide purchasers from a fraudulent vendee. But, before stating the rule, it will be well to SALE. 59 Sale or delivery procured by fraud. determine who is a Tyonafide purchaser. It may be safely laid down as law, that no person, as against the true owner, is to be deemed a hona fide purchaser from the first vendee, when it appears that he has neither advanced money nor property, nor incurred liabilities upon the faith of such vendee's apparent title, nor where he had notice of the fraud of the vendee or knowledge of circumstances sufficient to put him on inquiry. Barnard v. Campbell, 58 N. Y. Y3 ; S. C, 17 Am. Eep. 208 ; Stevens v. Brennam,, 79 J^. T. 254 ; Weiss v. Brennan, 9 Jones & Sp. 177. See Weaver v. Barden, 49 N. Y. 286 ; Boot v. French, 13 Wend. 570. He is not a hona fide purchaser when a recov- ery by the true owner would leave him in the same condition as if no contract of purchase had been made by him. Beavers v. Lane, 6 Duer, 232 ; Robinson v. Dauchy, 3 Barb. 20. And in a suit by the true owner to recover the goods against a person who claims title under a fraudulent vendee, the burden of proving that he is a purchaser in good faith and for value, is upon the purchaser. Stevens v. Brennan, 79 N. Y. 254; Devoe v. Brandt, 53 id. 462. It is sufficient to impeach the hona fides of a purchase of chattels from a fraudulent vendee, that the purchaser had notice of such facts and circumstances as would naturally excite the suspicion of a man of ordinary prudence and caution. If he has such notice and forbears to make inquiry, he is not a purchaser in good faith within the meaning of the rule that a hona fide purchaser from such vendee, in the ordinary course of business, for value, will acquire a valid title as against the defrauded vendor. DanfortJi v. Dart, 4 Duer, 101 ; Weiss v. Brennan, 9 Jones & Sp. 117 ; Mitchell v. Worden, 20 Barb. 253 ; OovellY. Hill, 6 N. Y. 374 ; Fringle v. Phillips, 5 Sandf. 157 ; Devoe v. Brandt, 53 N. Y. 462; Baher v. Bliss, 39 id. 70; S. 0., 6 Trans. App. 346. Where the owner of property delivers the possession of it, under a contract of sale, and he intends at the time to part with his title and property in the things delivered, any hona fide purchaser who takes a delivery of the property from the first vendee will obtain a title which is valid as against the first vendor, although the latter may have been induced to sell and deliver them by fraud, or by false pretenses, which are indictable, and which would authorize him to disaffirm the contract as against such fraudulent vendee. Caldwell v. Bartlett, 3 Duer, 341 ; Keyser v. Harhech, id. 373; MalGoin v. Loveridge, 13 Barb. 372; Mowrm) v. Walsh, 8 Cow. 238 ; Root v. French, 13 Wend. 570. So a hona fide mortgagee will get a good title if he advances the money for which the mortgage is given. Malcom v. Loveridge, 13 Barb. 372. So, one who in good faith, without notice of such fraud, receives such 60 SALE. Sale or delivery procured by fraud. goods from a fraudulent vendee, on consignment for sale, and ad- vances money thereon to such vendee, acquires a lien thereon, and such original vendor cannot reclaim the goods from him without repaying his advances. Williams v. Birch, 6 Bosw. 299 ; Calchoell v. Bartlett, 3 Duer, 341. A purchaser in good faith from such consignee will hold the goods in preference to the original vendor. lb. When it appeared that the contract of sale to the subsequent pur- chaser, by the fraudulent vendee, was so far executory that the thing sold had not been delivered, nor any portion of the price paid, so that, in the event of a recovery by the true owner, such purchaser would sustain no damage beyond the possible loss of anticipated profits, it was held that the original owner had a title paramount to such subse- quent purchaser. Beavers v. Lane, 6 Duer, 232. Where one in good faith makes advances on goods obtained from such vendee, and he obtains a documentary title thereto, and the con- structive but not the actual possession of the goods, he is not hable in trover to the first owner for not giving him the manual possession of the goods, on a demand made and an offer to refund his advances, when he offers to assign all his documentary evidence of title to the goods, and to confer upon the original owner all the actual power of disposition of them which he possesses. Keyser v. Harbeck, 3 Duer, 373. In action by the original vendor against one who purchased from liis fraudulent vendee, the presumption is, that such subsequent purchaser bought in good faith from the fraudulent vendee. Stocking bought a cow of the defendant, and gave his note for the purchase-money, and agreed that if the note was not paid, he would deliver up the cow as security ; Stocking some time afterward sold the cow to C. Lewis, wlio sold to J. Lewis, the plaintiff. The defendant took the cow from the plaintiff, who brought an action for such taking, and the defendant offered to show that Stocking was guilty of a fraud in the purchase from him ; but it was held that the evidence was not admissible, iinless the defendant first showed that those persons who purchased of Stock- ing, and subsequently to that time, had knowledge of the alleged fraud, and that the presumption was, that such purchases were made in good faith. Lewis v. Palmer, Hill & Denio, 68. Where property has been stolen, no person can get a good title from the thief, even if he is a hona fide purchaser. Hoffman v. Go/row, 22 Wend. 285 ; S. C, 20 id. 21 ; Robinson v. Dauchy, 3 Barb. 20. Where the owner of personal prop- erty has not conferred upon the vendor of it an apparent right of prop- erty, or right of disposal, a purchaser is not protected against the claims of the owner, although such purchaser acquires the property for a fair SALE. 61 Sale or delivery procured by fraud. and valuable consideration, in the usual course of trade, without notice of any conflicting claim, or knowledge of any suspicious circumstances calculated to awaken inquiry, or put him on his guard ; and it was held that the purchaser of a part of a cargo of a vessel was not protected against the claims of the real owner, although the purchase was made under a bill of lading regular and fair on its face ; it appearing on the trial, that the master of a vessel in which the goods were originally shipped had fraudulently, at an intermediate port, transhipped the goods into another vessel, and procured a bill of lading in his own name, which he transferred to his own agents, the vendors. Saltus v. Everett, 20 Wend. 275. On the 7th of October, the plaintiffs, in the city of New York, con- tracted to seU to Lovett & Co.. fifty barrels of potash, to be paid for on delivery ; and thereupon Lovett, one of the purchasers, engaged freight for the potash from the owners of a vessel which was about to sail to Liverpool. On the 9th of October, the plaintiffs, pursuant to the con- tract of sale, sent the potash on board the vessel, and took from the defendant, Peabody, who was master, receipts therefor in their own names ; and on the same day Lovett stole the receipts from the plaint- iffs, and, on presenting them to the owners of the vessels, procured a bill of lading for the potash in his own name, upon which and a bill of exchange drawn against the shipment, he procured an advance to about the value of the property. Lovett & Co. were insolvent and contracted for the property, intending not to pay for it ; and the plaintiffs, within a few days after the bill of lading had been procured, demanded the potash of the master, who declined to deliver it, and it was transported to Liverpool, and delivered pursuant to the bill of lading. In an ac- tion by the plaintiffs against the master, it was held, first, that the plaintiffs had not parted with their title to the potash ; and second, that the master was liable to them for its value, notwithstanding the bill of lading was given to Lovett, and the advance made to him upon its credit, without notice and in good faith, and although, by the custom of merchants and ship-owners in New York, bills of lading are made out and delivered to the person producing the ship's receipts, without reference to the party named in them, and without any assignment of them from such party. Brower v. Peabody, 13 N. Y. 121. A bill of lading is only so far negotiable as to protect a lonafide indorsee thereof, for value, from the exercise by the consignor of the right of stoppage in transitu ; but when such biU of lading is obtained by fraud from the owners of the goods, and there has been in point of fact no sale of them, an indorsee, though taking the goods in good faith and for value, 62 SALE. Rescinding contracts of sale . can obtain no better title to the goods than the indorser had. The bill is of no effect except when the assignor has at the time some right or authority, operative as against the owner, until rescinded by him. Dows V. Perrin, 16 IS". Y. 325. See First Nat. Bank of Toledo v. Shaw, 61 id. 283 ; 69 id. 624; Farmers and Mechanics' Nat. Bank v. Logan, li id. 568 ; Farmers and Mechanics' Nat. Bank v. ffazeltine, 78 id. 104 ; Collins v. Balli, 20 Hun, 246. One who has either tortiously or feloniously, without the knowledge of the owner, obtained the possession of a certificate of stock having a power of attorney in blank annexed thereto, cannot confer title on a third person by selling and delivering the same for a valuable con- sideration, although the purchaser acts in good faith, believing he is dealing with one who owns or has due authority to sell such stock. Anderson v. Nicholas, 5 Bosw. 121 ; S. C, 28 N. T. 600. One who receives such a certificate and power, and sells the same, or causes the same to be sold, by direction of one whom he supposes to be the owner, or to have due authority, is liable to the actual owner for a conversion of the stock, notwithstanding he has paid over the proceeds to the per- son employing him. lb. One who deals with or disposes of the per- sonal property of another (the same not being negotisble paper) must see to it that he acts by the authority of some one who has power sufficient to warrant such dealing or disposition. lb. One who tortiously pos- sesses himself of another's chattels, without a delivery from the true owner, or his consent, express or implied, can vest no title to them in a purchaser, though honafide. Caldwell v. Bartlett, 3 Duer, 341, 352, and cases cited. § 1 3. Rescinding contracts of sale. The right of rescinding con- tracts is an important one, and the law in relation to it is of frequent application. It may be laid down as a general rule, that in all con- tracts of sale either party may rescind the contract if the other party was guilty of a fraud in making such contract. The manner of re- scinding and the conditions and qualifications to be observed will be explained hereafter. When either party exercises the right of rescind- ing a contract, the effect of it will be to restore both parties to the posi- tion and rights which they enjoyed before the contract was made, un- less one or both of the parties have done some act which renders that impossible. Stevens v. Hyde, 32 Barb. 171. And the rule is the same where the contract is rescinded by the mutual consent of the parties. Battle V. Rochester City Bank, 3 N. Y. 88. In the absence of fraud the right to rescind a contract of sale is dependent upon the agreement of the parties and springs either from the original terms of the con- SALE. 63 Rescinding contracts of sale. tract or from a sudsequent mutual assent to break it up. See Heinckley V. Earle, 8 El. & Bl. 410. The contract may be avoided by mutual rescission at any stage, and upon whatever terms may be agreed upon between the parties, provided that all who have acquired rights under the sale acquiesce in the arrangement. Frazier v. Harvey, 34 Conn. 409; Morgan v. Bain, L. K, 10 0. P. 15 ; S. C, 11 Eng. E. 220. If the contract provides that one of the parties shall have the right to re- scind the contract in a certain event, the rescission must be made on the happening of that event ; for the law does not give to a party the right to enjoy the avails of the contract for an indefinite time after the right to terminate it exists, and to subsequently assert that it is not obligatory upon him. Bristol v. Tracy, 21 Barb. 236. In order to maintain an action to recover back money paid under a special contract, the plaintiff is bound to show the contract at an end, either by a full performance thereof by both parties, or by some act of the defendant inconsistent with it, and disabling him from comply- ing with its terms, or by a rescission by the mutual consent of both parties. Lawrence v. Simmons, 4 Barb. 354. The law will not allow a party who is wholly in default to recover back money paid in part performance of an executory agreement, who has afterward broken it and refused to go on and perform the residue. Haynes v. Hart, 42 Barb. 58 ; Green v. Green, 9 Cow. 46 ; Havens v. Patterson, 43 N. T. 218. An exchange of horses was made between the plaintiff's agent and the defendant, upon terms which, as the defendant knew, the plaint- iff had himself refused to adopt as the basis of an exchange. The plaintiff did not know of the bargain iintil after it was made, nor did he know the terms of it, and that it was contrary to his proposition, until after the death of the horse received in exchange had put it out of his power to return it, and he repudiated the bargain as soon as he knew what it was ; it was held that an action might be maintained by the plaintiff to recover the value of the horse delivered by his agent to the defendant. Robertson v. Ketchum, 11 Barb. 652. Where a note was given for a fanning mill, conditioned that if the maker was not suited with it he should return the same in a given time to the payees, they, in that event, to furnish him with a new mill, it was held that the maker of the note having returned the mill within the time and refused to accept a new one, though offered him by the payees, he was entitled to no abatement from the amount of the note by reason of latent defects in the mill. Pinney v. Hall, 1 Hill, 89. If the purchaser of goods which, by the terms of the contract of 64 SALE. Rescinding contracts of aale. sale, are to be delivered and paid for at a specified time, does not ten- der the price and take the goods within the time agreed upon, the ven- dor may request him to pay for and take the goods, and in case of his refusal, may abandon and rescind the contract, and dispose of tlie goods as if no contract had been made, or he may resell the goods, and recover of him the sum lost by the resale, together with the expenses of keeping the goods. MaEacliron v. Randies, 34 Barb. 301 ; Bogart v. G" Reagan, 1 E. D. Smith, 590 ; Crooks v. Moore, 1 Sandf. 297; Bands v. Taylor, 5 Johns. 395. No notice of the time and place of resale need be given to the vendee. Pollen v. LeRoy, 30 ]Sr. T. 549 ; Boga/rt v, 0' Reagan, 1 E. D. Smith, 590. Notice of intention to sell in case the contract is not performed is all that the law requires. MoOibhon v. Schlessinger, 18 Hun, 225 ; Lewis v. Qr eider, 49 Barb. 606 ; S. C. affirmed, 51 N. Y. 231. And see West/all v. Peaoock, 63 Barb. 209 ; Mills v. Gould, 10 Jones & Sp. 119. It is not necessary that the sale should he made at the place of delivery desig- nated in the contract. MoQihbon v. Schlessinger, 18 Hun, 225. All that is required of the vendor in such case is that in making the sale he shall act with reasonable care and diligence, and in good faith. He must be the judge of the time and place of sale provided he acts in good faith and with reasonable care and diligence. Dustan^.McAn- drew, 44 N. Y. 72. But he should make the sale without unnecessary delay, and at the earliest practicable period after the refusal of the vendee to accept the goods according to his contract. lb.; Tilt v. La Salle Silk Manuf. Co., 5 Daly, 19. All that can be required is that the sale shall be made within a reasonable time, and if so made, it cannot be invali- dated by showing that it might have been made sooner than it was. Smith V. Pettee, 70 N. Y. 13. In making the sale the vendor acts as tlie agent of the vendee, and will doubtless be bound to obey any instructions which may be given by the latter, as to the time and man- ner of sale, which the vendor can follow without sacrificing his lien on the goods for the contract-price. In the absence of such instructions the vendee must exercise a reasonable discretion. lb. There is no rule of law which requires such resale to be made at auction, or in any particular mode. The seller must dispose of the goods on the resale in good faith, in the mode best calculated to pro- duce their value. If the usual mode of selling the particular goods in market be at public auction, the seller ought to dispose of thsm in that manner. If the custom be to sell them through a broker, it is the duty of the seller to oflEer them in the market through a broker's agency. Crooks v. Mowe, 1 Sandf. 297. SALE. 65 Rescinding contracts of sale. "Where goods are sold which are to be paid for on delivery, and the vendee takes possession of the goods by fraud, or without the consent of the vendor and his waiver of the condition, such vendor may recover the possession of the goods in an action of replevin. Acker v. Gamjo- hell, 23 Wend. .372. And see Sale on Condition, etc., ante, 25 ; Sales Procured by Fraad, etc., ante, 55. Where a contract of sale has been procured by a fraud, the vendor may treat the sale as a valid one, if he so elects, and the fraudulent vendee will be bound, notwithstanding his own fraudulent acts. Bron- son Y. Wiman, 8 N. Y. 182 ; Matteawan Co. v. Bentley, 13 Barb. 641; Balheimer v. Reiohardt, 55 How. 414. But either party to a contract of sale may rescind it, if it was procured by the fraud of the other party. And the cases in which vendors have rescinded contracts of sale on account of the fraud of the vendee are very numerous. Ash V. Putnam, 1 Hill, 302 ; Gary v. Hotailing, id. 311 ; Olmsted v. Hotailing, id. 317 ; Willson v. Foree, 6 Johns. 110 ; Keteltas v. Fleet, 7 id. 324; Bitohcock v. Govill, 20 Wend. 167; Bliss v. Cottle, 32 Barb. 322 ; Wheaton v. Baker, 14 id. 594 ; Seaman v. Low, 4 Bosw. 337. The vendor may recover the purchase-price of such fraudulent ven- dee immediately, since the fraud avoids any credit which was to have been given, and the vendor may at once recover the money. Willson V. Foree, 6 Johns. 110 ; Pierce v. Drake, 15 id. 475 ; Kayser v. Sichel, 34 Barb. 84 ; Roth y. Palmer, 27 id. 652. So, he may maintain an action of trover against such vendee, after a demand and refusal. Hitchcock V. Govill, 20 Wend. 167. Or he may maintain replevin to recover the possession of the goods. Gary v. Hotailing, 1 HiU, 311 ; Olmsted v. Hotailing, id. 317 ; Wheaton v. Baker, 14 Barb. 594. And so he may recover the goods from a general assignee of such fraudulent vendee. Bliss v. Gottle, 32 Barb. 322. Or he may recover them from creditors of such vendee. Ash v. Putnam, 1 Hill, 302. And see ante, 55. A breach of warranty made by the vendor is not a sufficient ground for the vendee to rescind the contract of sale, and to insist upon return- ing the goods sold. The purchaser is not entitled to rescind the sale, return the chattels and demand a return of the price paid, unless there was fraud in the sale on the part of the vendor, or there was an express agreement that they might be returned if they were not such as they were warranted to be. Kiernan v. Roeheleau, 6 Bosw. 148; Gary v. Grum,an, 4 HiU, 625 ; Voorhees v. Ea^l, 2 id. 288 ; Muller v. Eno, 14 N. Y. 597; Fisher v. FredenhaU, 21 Barb. 82; Rust v. FckUr, 9 66 SALE. Rescinding contracts of sale. 41 N. T. 488 ; Parlts v. Morris Ax and Tool Co., 54 id. 586 ; Day V. Pool, 52 id. 416; S. C, 11 Am. Eep. 719 ; Nichols v. Townsend, 7 Hun, 375 ; Zuller v. Rogers, id. 540. There is sometimes an implied warranty which may authorize a re- fusal to receive goods sold, or even to return them, after they have been delivered, though this is not strictly upon the ground that the contract is rescinded, but because the goods delivered are not such as , the contract requires. Where goods are to be manufactured in future, the vendee may require a merchantable article. Howard v. Hoey, 23 Wend. 350 ; Hoe v. Sanborn, 21 K. Y. 552 ; Muller v. Eno, 14 id. 597, 602. Upon an executory contract for the sale of personal property there may be a warranty ; and where the warranty is as to its intrinsic qual- ity, which mere observation or inspection will not determine, upon re- ceipt and subsequent discovery of a breach, the vendee can recover upon the warranty, and is not bound to release or offer to return the property. Day v. Fool, 52 N. Y. 416 ; S. C, 11 Am. Eep. 719 ; Zuller V. Rogers, 7 Hun, 540; Parks v. Morris Ax and Tool Co., 54 N. Y. 586. A return, or its equivalent offer, is only necessary where a rescission of the contract is sought, and is neither necessary nor ad- missible where a warranty simply is relied upon. lb. An executory contract to manufacture and deliver articles, corresponding in all respects to a sample shown, binds the party to furnish articles equal to the sample in manufacture, material, description, quality, fitness and dura- bility, for the use for which they were designed. And if a defect exists which could not be determined by examination upon the receipt of the articles, but only upon use, it is not the duty of the vendee to rescind the contract, and return or offer to return the property upon discovery ; but he may retain them and recover or recoup his damages. Gurney v. Atlantic, etc.. Railway Co., 58 N. Y. 358. See, also, Gautier v. Pouglass Manuf. Co., 13 Hun, 514. Where, in an executory coTitract for the purchase and sale of personal property, there is no warranty, express or implied, an acceptance by the vendee after examination, or after an opportunity for examination, in the absence of fraud, is conclusive of an assent upon his part that the property is of the quality contracted for. Dutchess Company y. Hard- ing, 49 N". Y. 321. But where the acceptance is induced by artifice or fraud of the vendor, by reason of which an examination is prevented or interfered with, the acceptance is not binding as an assent to the quality, and the vendee's rights under the contract are unimpaired thereby. lb. When a party would rescind a contract of sale for fraud, he must act SALE. 67 Rescinding contracts of . sale. promptly on discovering sucli fraud. Wheaton v. Baker, 14 Barb. 594 ; Matteawan Co. v. Bentley, 13 id. 641 ; Fisher v. Fredenhall, 21 id. 82 ; Central Banh v. Pindar, 46 id. 467 ; Sohiffer v. Dietz, 83 N. Y. 300. If the vendee of property is silent 'and continues to treat tlie property as his own, he will be deemed to have waived the objec- tion and will be as conclusively bound by the contract as if the mistake or fraud had not occiirred. See Thomas v. Barton, 48 JST. Y. 193, 200 ; Grymes v. Sanders, 93 U. S. 55 ; Boughton v. Standish, 48 Yt. 594 ; Jennings v. Broughton, 5 De Gr. M. & G. 139. And the buyer is not only bound to rescind for fraud at the earhest practicable moment, but lie must rescind the contract wholly or not at all. Shields v. Pettee, 2 Sandf. 262 ; Morse v. Brackett, 98 Mass. 205 ; Kinney v. Kiernan, 49 N. Y. 164. He cannot retain either the whole or a part of the con- sideration received under an entire contract. Willoughhy v. Moulton, 47 N. H. 205 ; Campbell v. Fleming, 1 Ad. & El. 40. The purchase of a specific number of packages of an article, at a given price per package, is an entire contract and cannot be rescinded by the buyer as to some, and affirmed as to others. Mansfield v. Trigg, 113 Mass. 350 ; But see Costigan v. Hawkins, 22 Wis. 74. If the vendee would re- scind a contract for fraud he must return, or offer to return, the prop- erty purchased. Yoorhees v. Earl, 2 Hill, 288 ; Both v. Palmer, 27 Barb. 654 ; Massmi v. Bovet, 1 Denio, 69 ; Wheaton v. Baker, 14 Barb. 594; Waring v. Mason, 18 Wend. 426; Fisher v. Fredenhall, 21 Barb. 82 ; Matteawan Co. v. Bentley, 13 id. 641 ; Sohiffer v. Diets, 83 N. Y. 300. A party cannot have the benefit of a rescission of the con- tract while he holds the obligation of the opposite party as the con- sideration of the contract, without offering to cancel it at the trial. Central Bank v. Pindar, 46 Barb. 467. The general rule is, that the party who would rescind a contract on the ground of fraud, for the purpose of recovering what he has advanced upon it, must restore the other party to the condition in which he stood before the contract was made. CoHb v. Hatfield, 40 N. Y. 533 ; Mas son V. Bovet, 1 Denio, 69 ; Hunt v. Singer, 1 Daly, 209 ; S. C. affirmed, 41 N. Y. 620, n. ; Cv/rtiss v. Howell, 39 id. 211 ; Guolcenheimier v Angevine, 81 id. 394; Oould v. Cayuga County National Bank, 86 id. 75. And see Hamilton v. Singer Manufacturing Co., 54 III. 370. But where the party who practiced the fraud has en- tangled and complicated the subject of the contract in such a manner as to render it impossible that he should be restored to his former con- dition, the party injured, upon restoring or offering to restore what he has received, and doing whatever is in his power to undo what has been 68 SALE. Rescinding contracts of sale. done in the execution of the contract, may rescind it and recover what he has advanced. Masson v. Bovet, 1 Denio, 69. Where the buyer has himself rendered a re-delivery impossible, he cannot, of his own mo- tion, rescind a fraudulent sale. Glarh v. Weufville, 46 Ga. 261. But a buyer who is entitled to rescind the contract for fraud, but who delays doing so for the purpose of affording the seller at his re- quest an opportunity of attempting to make the thing sold of value and satisfactory to the buyer, is not precluded by such delay from thereafter rescinding the contract. Powell v. Woodworth, 46 Yt. 378. The defendant, being the plaintiff in a judgment, and about to cause land of the judgment debtor to be sold on execution, fraudulently repre- , sented to the plaintiff that the land to be sold was free from any prior incumbrance, when, in truth, it was subject to older liens to more than its value, and thereby induced him to become the purchaser at the sheriff's sale for a considerable sum, and received from him in payment of his bid the note of a third person, held by the plaintiff for a larger sum than the amount bid, giving back his own note for the balance, it was held that the plaintiff, who had, immediately upon the discovery of the fraud, offered to give up the note received by him and to assign the certificate of sale, could maintain replevin against the defendant for the note so transferred to the defendant by him. Massmi v. Bovet, 1 Denio, 69. So where a vendor, in pursuance of a right reserved in the contract of sale, declares the contract void, and re-enters and takes possession of the lands, and sells the same to another person, this amounts to a rescission of the contract by him, and the vendee may, in an action for money had and received, recover back the payments made by him. Utter v. Stuart, 30 Barb. 20. On the 19th of June, 1857, the plaintiffs bought a quantity of sheep of the defendant for the sum of $168, paying $50 of the price down, and agreeing to pay $50 on the twenty-second day of that month, and to take the sheep away and pay the balance of the purchase- money within ten days of sale. The plaintiffs did not pay the $50 on the twenty-second day of Jime, and did not call for the sheep and offer to pay the balance of the price within ten days. On the seventh day of July the defendant told the plaintiffs that the sheep were sold to another person, and refused to let the plaintiffs have them. In an action brought by the plaintiffs to recover back the $50 paid at the time of the sale, and for damages, it was held that if the defendant meant to enforce the contract, he should have given notice to the plaint- iffs that if they did not take the sheep and pay the balance of the pur- chase-money by a specified time, he should sell the sheep and look to SALE. 69 Rescinding contracts of sale. the plaintiffs for any deficiency ; that having resold the sheep without giving such notice, the defendant rescinded the contract in toto, and lost all right of action against the plaintiffs for their breach of it, and became liable to refund to them the $50 paid on it, and that, therefore, the plaintiffs were entitled to recover the $50 paid by them, with in- terest thereon from the time the defendant rescinded the contract, but that, being themselves in the wrong, they could not recover any dam- ages of the defendant for his rescission of the contract ; and also that it was not necessary to demand the $50 of the defendant before bring- ing their action to recover it back. Fancher v. Goodman, 29 Barb. 315. Before a purchaser of real estate can rescind the contract of pur- chase and claim to recover back the moneys paid by him on account of the price, he is boimd to restore to the vendor the possession of the premises. He cannot occupy under the contract, and thus enjoy the benefit of it, and at the same time treat it as rescinded, and reclaim the purchase-money. Goelth v. White, 35 Barb. 76 ; Abbott v. Draper, 4 Denio, 51 ; Lkidsley v. Ferguson, 49 N. Y. 623 ; TompMns v. Hyatt, 28 id. 34T ; Lewis v. McMillen, 41 Barb. 420 ; Ooray v. Matthewson, 7 Lans. 80 ; S. C, 44 How. 80. There are cases in which the omission to return what has been re- ceived is excusable in point of law. The defendant obtained mer- chandise frem the plaintiff under fraudulent i-epresentations, paying part of the price in cash and giving his note for the balance. At the maturity of the note the defendant could not be foimd, upon inquiry, at his last place of residence ; it was held that an action of trover would lie without a tender of the money or note,, and that it was sufficient if the note were produced and tendered at the trial. Ladd v. Moore, 3 Sandf. 589. Though a party who rescinds a contract is bound to re- store what he has received upon it, yet this is upon the condition that such party shall thus restore himself to his own original position. lb. "Where a fraudulent purchaser has absconded, leaving the purchase- money unpaid, a return to him of the notes given for such price be- comes impracticable, and the vendor is, therefore, not required to offer to return the notes before bringing an action to disaffirm the sale. In such a case, it is sufficient to produce the notes at the trial. Sathorne V. Eodges, 28 N. T. 486; White v. Bodds, 42 Barb. 554; S. 0., 28 How. 197 ; 18 Abb. 250. And, as against a third person claiming under a fraudulent vendee, in order to establish a rescission of the contract of sale, it is not neces- sary to prove a return of, or offer to return, any securities received 70 SALE. Rescinding contracts of sale. thereon if the vendor refrains from asserting any title to those securi- ties founded upon the original contract. Kinney v. Kiernam,, 49 N. Y. 164. And see Fearse v. Pettis, 47 Barb. 276. Where the plaintiff sold a quantity of stoves to J., and received m payment two notes made by M. for a "part of the amount, and the note of J. for the balance of the purchase-money, and J. subsequently sold a part of the stoves to ionafide purchasers, and the defendant became the purchaser of the remainder, and the plaintiffs then applied to M., and obtained from him four additional notes made by him, for a part of the purchase-money, and prosecuted two of them to judgment, and, after demanding the stoves of the defendant, they brought an action to recover. the possession thereof, on the ground that the purchase by J. wa.s> fraudulent, but without rescinding the contract or offering to return the note given by J. or those given by M. ; and it was held that the action could not be maintained. Wheaton v. Baker, 14 Barb. 594. And see Royt v. Hall, 3 Bosw. 42. " It is true, as a general rule, that a party who would disaffirm a con- tract must return, or offer to return, whatever he has received upon it. But in cases of fraud, when nothing is parted with by the fraudulent vendee but his own promissory notes, such a return, or offer to return, is not necessary before action brought, it is enough if the notes are produced on the trial, ready to be canceled. Nellis v. Brad- ley, 1 Sandf. 560 ; Ladd v. Moore, 3 id. 589. In a sale procured by fraud no title passes, the vendor still retains his legal right to the goods ; and rescinding the contract of sale rescinds the contract of payment, and hence the notes fall with the contract. lb. Most of the cases in which a return has been held necessary, before action, related to execu- tory sales, and where the party sought to rescind because of the failure of the other party to fulfill the agreement. In such cases, a tender is no doubt a condition precedent to a right of action." Nichols v. Mi- chael, 23 IT. Y. 264, 267, James, J. It is not any more necessary to tender a negotiable note than any other, if the note lias not been nego- tiated, but still belongs to the vendor. lb. But where negotiable notes were given by the vendee, payable at a bank which discounted the notes and owned them at the time of the commencement of the action, and no tender or offer was made by the vendor to return or cancel the notes before action brought, it was held that the plaintiff could not maintain an action to recover the value of the goods, although he pro- duced them at the trial, and offered to caTicel them. Matteawan Co. v. Bentley, 13 Barb. 641, 644. And where a vendor sells goods and receives from the- purchaser a SALE. 71 Rescindiug contracts of gale. promissory note made by a third person in payment, and he afterward sues tlie purchaser for goods sold, on account of fraudulent representa- tions made by him as to the solvency of the maker of such note, by which he was induced to receive the note, the vendor must, in order to recover, show that he returned or tendered the note to the defendant before suit brought. And if he has recovered a judgment upon it against the maker, an assignment of the judgment must be tendered before suit. Baker v. Robhins, 2 Denio, 136 . In an action to recover back property which has been fraudulently obtained upon credit, it is not necessary that the plaintiff cancel the notes to the defendant if he produces them at the trial. But if he has received the notes of other persons, or other property, he must restore or offer to restore them before suit. King v. Fitch, 1 Keyes, 432 ; S. C, 2 Abb. Ct. App. 508. Where a vendor seeks to rescind a contract of sale on the ground of fraud and to recover the property from the fraudulent vendee, he is not required to reimburse the latter for advances to others, or for ex- penditures made to effectuate his fraud, although the vendor would have the benefit of such advances and expenditures on repossessing himself of the property. Ouckenheimer v. Angevine, 81 N. Y. 394. The law cares very little what the loss of a fraudulent party may be and exacts nothing for his sake. lb. ; Masson v. Bovet, 1 Denio, 69, 74. If, since the purchase, the purchaser has assigned all his property to trustees, in trust for the benefit of creditors, and the assignees are in possession of the property, a tender of the money or property received by the vendor, upon the sale, maj'- properly be made to the assignees instead of the purchaser. Stevens v. Hyde, 32 Barb. lYl. The vendor may recover the property from such an assignee precisely as though he were the fraudulent vendee. lb. ; Nellis v. Bradley, 1 Sandf . 560. It is not necessary that a demand of property in the hands of the general assignee of the fraudulent vendee should be preceded or accompanied by a declaration of disafiirmance of the contract, or by a statement that such disafiirmance is on the ground of the fraud perpetrated by the fraud of the original purchaser in making the purchase. White v. Dodds, 42 Barb. 554; S. C, 18 Abb. 250; 28 How. 197. It has been held in this State that if an infant has executed a con- tract on his part by the payment of money or delivery of property, he cannot afterward disaffirm it and recover back the money or claim a return of the property without restoring to the other party the consid- eration received from him. Bartholomew v. Finnemore, 17 Barb. 428. 72 SALE. Rescinding contracts of sale. And it has been also held that the terms upon which a rescission by an infant will be allowed are a restoration of the property to the person of whom he received it, and the payment of such a sum as, with the payments on account of the purchase, equals the deterioration of the property in value, caused by the infant's use of it. Oray v. Lessing- ton, 2 Bosw. 5i57. But this rule must be taken with the qualification, that the infant, at the time of the rescission, still is in possession of the money or property received by him. Dill v. Bowen, 54 Ind. 204. And see Bedinger v. Wharton, 27 Gratt. (Va.) 857. The right to re- pudiate is based upon the incapacity of the infant to contract, and that incapacity applies as well to the avails as to the property itself ; and when the avails of the property are improvidently spent or lost by speculation or otherwise during infancy, the infant will not be held re- sponsible for an inability to restore them. Thus, where an infant has consumed the consideration given him for his deed of certain land, restitution of the amount cannot be required as a condition of his dis- affirmance of his conveyance. Green v. Green, 7 Hun, 492 ; S. C. affirmed, 69 IST. Y. 553 ; S. C, 25 Am. Eep. 233. And see Fitts v. JSall, 9 N. H. 441 ; Walsh v. Young, 110 Mass. 399 ; Mustard v. Wohlfard, 15 Gratt. (Ya.) 329 ; Price v. Furman, 27 Yt. 268. So, it has been held that an infant may recover personal property sold or ex- changed by him, without returning the money or property received therefor. White v. Branch, 51 Ind. 210. And that it is no defense to an action by an infant to recover possession of a horse, that another horse received by him in exchange therefor had been so misused by him that, though sound and of equal value with the horse given by him in ex- change at the time of the transaction, it became unsound and of no value, and that afterward the plaintifE offered to rescind, then making known his infancy to the defendant, who had no knowledge thereof at the time of the exchange. lb. But see Bartholomew v. Finnemore, 17 Barb. 428. Upon a sale of an interest in a patent, the purchaser is precluded from setting up the want of value in the invention, or the insufficiency of the materials, where he has sold the right transferred to him to an- other for value. He cannot defend an action for the unpaid purchase- money on that ground. It would be otherwise if there had been a war- ranty or express representation of the value or character of the article. By parting with the patent, he has disabled himself from reinstating the plaintifE in its possession, and the contract cannot be rescinded without that. Thomas v. Quintard, 5 Duer, 80 ; Wheaton v. B alter, 14 Barb. 594. SALE. 73 Resciuding contracts of sale. When a contract is rescinded, the entire contract must be rescinded. The vendee cannot elect to rescind in part, and hold the residue of the contract valid. Voorhees v. £^a/rl, 2 Hill, 288 ; Shields v. Peitee, 2 Sandf . 262 ; Goelth v. White, 35 Barb. Y6 ; Ahhoti v. Draper, 4 Denio, 51 ; Matteawan Co. v. Bentley, 13 Barb. 641 ; Wheaton v. Baker, 14 id. 594 ; Stevens v. Hyde, 82 id. 171. The vendee cannot retain any benefit whatever under the contract, and still insist upon a rescission of it. lb. He cannot both repudiate the contract and yet enforce it in the same action. He cannot allege that it was void for some purposes, and then insist that for other purposes it is valid. Oa/rhutt v. Smith, 40 Barb. 22 ; Walker v. Millard, 29 N. Y. 375. And, although the contract may relate to several different articles at different prices, he cannot retain some of them and rescind the contract as to the others. Voorhees v. Earl, 2 Hill, 288. So as to quality or kind of goods, the vendee cannot accept some and reject others, he must rescind entirely or not at all. Shields v. Pettee, 2 Sandf. 262. He cannot retain a part of the goods and then recover damages for the Don-delivery of the entire quantity, because they do not correspond with the article sold and agreed to be delivered. He must either receive the article as it is, or he must retui'u the portion delivered, and then enforce his claim for damages. He can recover no damages if he re- fuses to return the part delivered. lb. Where a contract is entered into for the sale of a chattel, the price paid, and the article delivered to the purchaser, with the right to return it to the vendor within a stipulated time, provided the purchaser does not in any way injure it while in his possession, and the property is re- turned to the vendor, who accepts it and repays the price, an action lies against the purchaser if he has been guilty of a misrepresentation or a fraudulent concealment in respect to an injury done to the property while in his possession. Taylor v. Tillotson, 16 Wend. 494. To sub- ject the purchaser to an action in such a case, it is not necessary to show that the injury was intentional, or that it was occasioned by gross neg- ligence, lb. During the time the purchaser retains the property in such a case, the title is vested in him, and he is at all risks of loss or injury to the property. lb. But where, after the sale of a chattel, it is agreed that the vendee may, within a reasonable time, return it and receive back the price, if returned in as good condition as at the time of the delivery, and the vendee afterward rescinds the contract and returns the chattel to the vendor, who receives it without objection and gives back the price, the latter is concluded by his own act from maintaining an action against 10 74 SALE. Warranty. the vendee for any deterioration of the chattel not arising from a secret injuiy. Lord\. Kenny, 13 Johns. 219. A party may have a right to rescind a contract for fraud, but he is not bound to exercise that right by a rescission of the contract. He may elect to treat the contract as a valid one, and then enforce such other legal remedies as the law gives him. So, when goods are sold with a waiTanty, and the vendee has a right, by the terms of his con- tract, to rescind the contract and return the goods, if they do not answer the warranty, he is not bound to return the goods, but he may retain them and sue the vendor for a breach of the warranty. Waring V. Mason, 18 Wend. 426 ; Boorman v. Jenkins, 12 id. 566 ; Benaud v. Peoh, 2 Hilt. 1 3Y ; Muller v. Eno, 14 N. Y. 598. The purchaser may recover for the breach of warranty, although he has sold the goods and no claim has been made upon him, and although he is not liable to any one on account of the alleged defect. Muller v. Eno, 14 N. Y. 598 Renaud v. Pech, 2 Hilt. 137. A return of the goods is never necessary, unless the vendee wishes to rescind the contract of sale. Waring v. Mason, 1 8 Wend. 426 ; Boor- man V. Jenkins, 12 id. 566; Muller v. Eno, 14 IST. Y. 59T, 602. If the vendor rescinds the contract on account of the fraud of the vendee, and reclaims the goods from him, such vendor cannot after- ward maintain an action to recover the purchase-price of the vendee. So, where the vendee failed to pay cash for the goods as he agreed to do, and when the vendor took the goods, for that reason, in an action of replevin, that is a rescission of the contract, and the vendor cannot maintain an action to recover the purchase-price. Morris v. Rexford, 18 N. Y. 552 ; Fancher v. Goodman, 29 Barb. 315. If the fraudulent vendee has transferred the goods with others in trust for the payment of antecedent debts, an acceptance by the vendor, after discovery of the fraud, of a written assignment of the vendee's claim for the surplus after payment of the debts, will be an unequivocal affirmance of the sale and subsequent transfer and an abandonment of the right to reclaim the goods, even though the assignment provided that the transaction should not have that effect. Joslvn v. Cowee, 52 N. Y. 90 ; S. C. again, 56 id. 626. In an action by a purchaser to recover back money paid in part exe- cution of a contract, which has been rescinded by the vendor, the plaintiff is not obliged to prove a tender or readiness to pay the whole price. Main v. King, 8 Barb. 535. § 14. Warranty. Sales of personal property form so large a por- tion of the contracts made, that a careful explanation of the law in re- SALE. 75 Warranty. lation to the law of warranty cannot fail to be useful. But tlie remedy of a party may not always seem to be clear, since he may have more than one form of action, or may think he has a right of action when the law does not give him any under the circumstances of the particu- lar case. When a sale has been made, and the vendee thinks that he has a right of action on account of the improper conduct of the vendor, the vendee will need to be careful in discriminating accurately between three separate classes' of cases: 1. Where a fraud is involved. 2. Where a warranty has been given in express terms, or where one may be implied. 3. Where a representation or statement has been made, which is erroneous, but neither fraudulent nor incorporated into the contract. The subject of frauds in sales will be discussed separately hereafter. There is a broad distinction between a sale of goods with a warranty of quality, and a fraud in a sale of similar articles. If a man sells a horse to another, and expressly warrants him to be sound, the contract of warranty is broken if the horse proves to be otherwise. The purchaser in such cases relies upon the contract, and it is immaterial to him whether the vendor did or did not know of the unsoundness of the horse. In either case he is entitled to recover all the damages which he has sustained by reason of the breach of that contract. An express warranty extends to all the defects or faults which it covers, whether they are known or unknown to the vendor. Oarley v. WilTcins, 6 Barb. 557. But if the vendor says to the purchaser, " I do not know whether the horse is or is not sound, and therefore will not warrant him ; all I can say is, that I have long owned him, and know of no unsound- ness ;" here is manifestly no warranty, and if the vendor spoke the truth, no fraud. If, however, the vendee can show that the horse was unsound, that the vendor knew it to be so at the time of the sale, and that, in consequence of the false representations made by him, the vendee was defrauded, the vendor would be liable, not for a breach of contract of warranty, for he had made no such contract, but for making representations which he knew to be false. In such a case, the guilty knowledge of the vendor would constitute an essential ingredient in the fraud, and in an action against him, it should be both alleged and proved. The remarks already made relate to the distinction between an ex- press warranty and a fraud ; but the same distinction exists between cases of implied warranties and frauds. There is a class of representa- tions or statements which a vendor may make which are not always consid- ered as amounting to a warranty. Cases frequently occur, in which, upon entering into contracts, misrepresentations made by one party 76 SALE. Warranty . have not been in any degree relied upon by the other party. If the party to whom the representations were made, had himself resorted to the proper means of verification before he entered into the contract, it may appear that he relied upon the result of his own investigation, and not upon the statements made to him on the other side ; or, if the means of investigation and verification were at hand, and the attention of the party receiving the representations were drawn to them, the cir- cumstances of the case may lead a jury to impute to the party alleged to have been misled such a knowledge of the facts as, upon due in- quiry, he ought to have obtained, the notion of any reliance having been made upon the representations made to him being necessarily Ex- cluded. Again, in endeavoring to ascertain what rehance was placed on representations, they should be considered with reference to the subject-matter which they concern, and to the relative knowledge of the parties. If the subject is capable of being accurately known, and one party is, or is supposed to be, possessed of accurate knowledge, and the other is entirely ignorant, and a contract is entered into after repre- sentations made by the party who knows, or is supposed to know, with- out any means of verification being resorted to by the other, it may well enough be presumed that the ignorant man rehed on the state- ments made by him who was supposed to be better informed ; but if the subject is in its nature uncertain, if all that is known about it is a matter of inference from something else, and if the parties making and receiving representations on the subject have equal knowledge and means of acquiring knowledge, and equal skill, it is not easy to pre- sume that representations made by one would have much influence on the other. Contracts of warranty are governed by the same rules of law that apply to all other contracts, and therefore a warranty need not be expressed in any particular form of language. If the vendor, at the time of sale, affirms a fact as to the essential qualities of his goods in clear and definite language, and the purchaser buys on the faith of such affirmation, that is an express warranty. Polhemus v. Sevman, 45 Cal. 573 ; Murray v. Smith, i Daly, 27Y ; Gallanan v. Brown, 31 Iowa, 333.; Tlwrne v. McVeagh, 75 111. 81 ; Bryanty. Crosby, 40 Me. 9 ; Garley v. WilTcins, 6 Barb. 557 ; Oneida Manufaeturing Society v. Lavirence, 4 Cow. 440. The word warrant need not be used in order to constitute a contract of warranty. Ghapmcm v. Murch, 19 Johns. 290 ; Roberts v. Morgan, 2 Cow. 438 ; Whitney v. Sutton, 10 Wend. 411. An assertion of the vendor concerning the articles sold, if it be relied on by the vendee, and understood by both parties as an absolute SALE. 77 Warranty. assertion and not merely the expression of an opinion, will amount to a warranty. Oarley v. WilMns, 6 Barb. 557. But representations, descriptive of the thing sold, or which may be taken as an expression of the opinion of the vendor, do not necessarily import a warranty. Law- ton V. Keil, 61 Barb. 568 ; Texoheshury v. Bennett, 31 Iowa, 83 ; Baker V. Henderson, 24 Wis. 509 ; Carter v. Black, 46 Mo. 384 ; Horton v. Green, 66 N. 0. 596 ; Hopkins v. Tanqueray, 15 0. B. 130. If, how- ever, the representations are as to the quality of the thing sold, or its fit- ness for a particular purpose, and are intended as a part of the con- tract of sale, they will constitute a warranty if the vendee purchases, relying upon them. lb. ; Richardson v. Grandy, 49 Vt. 22. Thus, if the vendor of a horse, during the negotiations for a sale, recites what work the horse has done, and says that he can work well enough then, this is a direct affirmation of the ability of the horse to labor, and is a warranty. Morgan v. Powers, 66 Barb. 35. It is not true, as sometimes stated, that the representation, in order to constitute a warranty, must have been intended by the vendor, as well as understood by the vendee, as a warranty. If the contract is in writing and it contains a clear warranty, the vendor will not be per- mitted to say that he did not intend what his language clearly and ex- plicitly declares ; and so if it he by parol, and the representation as to the character or quality of the article sold be positive, not a mere mat- ter of opinion or judgment, and the vendee understands it as a war- ranty, and he relies upon it and is induced by it, the vendor is bound by the warranty, no matter whether he intended it to be a warranty or not. He is responsible for the language he uses, and he cannot escape liability by claiming that he did not intend to convey the impression which his language was calculated to produce upon the mind of the vendee. Hawkins v. Pemherton, 51 N. Y. 198 ; S. C, 10 Am. Eep. 695. See, also, Smithers v. Bircher, 2 Mo. App. 499. If the con- tract is by parol, the question whether what passed between the parties amounted to a warranty or was merely a recommendation, or an ex- pression of an opinion, is a question of fact to be determined by the justice or the jury as a fact, unless the language used has a fixed or technical meaning. Murray v. Smith, 4 Daly, 277 ; Duffee v. Mason, 8 Cow. 26 ; Whilmsy v. Sutton, 10 Wend. 413 ; Blakeman v. Macka/y, 1 Hilt. 266 ; Rogers v. Ackerman, 22 Barb. 134; Cooh v. Mosehy, 13 Wend. 277 ; Van Wyok v. Allen, 6 Daly, 376 ; Vincent v. Lelamd, 100 Mass. 432; AllamY. Lake, 18 Ad. & El. [K S.J 565. But if the question is as to the effect of a written contract, the interpretation of the language used is within the province of the court. Sparks v. Mes- 78 SALE. Warranty. sioh, 65 N. 0. 440; Merriam v. Field, 24 Wis. 640; Brown v. Bigelow, 10 Allen, 242. If a representation is made in the course of a negotiation for a sale, and the contract of sale is afterward reduced to writing and signed, and does not contain the representation, it is excluded from the contract and does not amount to a warranty. Kain \. Old, 2 Barn. & Ores. 627 ; Randall v. Rhodes, 1 Curt. 0. C. 90. And see Pender v. Fohes, 1 Dev. & Bat. (IST. C.) 280. And, as a general rule, parol evidence is inad- missible to add a warranty to a written contract of sale, or to extend a warranty therein expressed. Merriam v. Field, 24 Wis. 640 ; Rice v. Forsyth, 41 Md. 389 ; Ranger v. Hearne, 37 Tex. 30. The oral con- tract of warranty may, however, be collected from the language and conduct of the parties at two or more interviews. Finney v. Andrus, 41 Yt. 631. And the tones, looks, gestures, and the whole manner of the conversation may be weighed by the jury in connection with the other surrounding circumstances of the transaction. Horton v. Green, 66 N. 0. 596. An Express warranty may likewise be made out from parol words and acts followed by certain writings. Thus, where a sale of merchandise, with warranty, is made verbally upon credit, the quantity not being then ascertained, and the seller forwards a writ- ten bill of sale thereof, stating quantity and price only, and subse- quently ships the goods to the buyer, the whole transaction becomes an executed contract of sale with warranty, as of the time when the goods are shipped. Foot v. Bentley, 44 IST. Y. 166 ; S. C, 4 Am. Eep. 652. It has been held that a warranty is an incident only of consummated or completed sales, and has no place as a contract, having present vitality and force, in an executory agreement of sale. Osiorn v. Oamtz, 60 N. Y. 540. But it is also held that an express warranty may accom- pany the delivery of goods upon 'an executory contract and may be en- forced as such ; and where the warranty relates not to the external char- acter of the article sold, but to its intrinsic quality, not the subject of the direct and immediate observation of the senses, the party to whom it is given may rely upon it, and recover his damages without returning or offering to return the property purchased. Parks v. Morris Am and Tool Co., 54 N. Y. 5S6 ; Bounce v. Bow, 57 id. 16 ; Day v. Pool, 52 id. 416; S. C, 11 Am. Eep. 719. A warranty may relate to the quality or condition of the article sold, or to its character. There is no distinction in principle between representations as to quality, condition or character, and what will amount to a warranty in one case will in the other. Bawkins v. PcTn- herton, 51 N. Y. 198 ; Bounce v. Bow, 64 id. 411 ; White v. Miller, SALE. 79 Warranty. 71 id. 118; S. C, 27 Am. Eep. 13; Van Wych v. AUen, 69 N. Y. 61. The distinctions made in some of the older cases are no longer ]-e- garded in this State, and it is now held that a sale of a chattel by a particular description is a warranty that the article sold is of the kind specified. lb. From the cases already cited, it is evident that a warranty may be oral or written, may accompany an executed or executory contract of sale, and may relate to the character, quality or condition of the article sold. It is also evident that whether the language used by the parties was or was not understood and relied upon as a warranty of the facts stated is in case of oral contracts a question of fact. A few cases will be given in illustration of these general rules. In one case the vendor said that the horse sold was not lame, and that he would not be afraid to warrant him sound every way, as far as he knew. The horse subse- quently proved lame, but as to the fact whether it was so at the time of the sale, the evidence was contradictory. The justice gave judg- ment for the plaintiff, which was affirmed by the Supreme Court. Cook V. Moseley, 13 Wend. 277. In another case, the vendor sold a colt, and during the negotiations, the vendee mentioned that the colt looked poor ; when the vendor said " there is nothing the matter with the colt ; it is well and sound, and will make a fine horse." The colt proved to have been diseased at the time. The court held that the words might amount to a warranty ; or be a matter of opinion merely, which was a question for the jury under all the circumstances. Duffee v. Mason, 8 Cow. 25, 26. In making an exchange of horses, the horse of the defendant being, lame at the time of the exchange, and the plaintiff expressed his apprehensions as to the lameness, and the defendant said " he is a sound horse except the scratches, and when he gets well of the scratches, he will be well of the lameness ; " upon this the exchange took place. The horse was cured of the scratches, but the lameness continued, and would be permanent. The jury found that this was a warranty, and the judg- ment was affirmed, on the ground that the finding of the jury was conclusive. Whitney v. Sutton, 10 "Wend. 411. , The question whether words used by a vendor upon a sale of a horse, in respect to his age, amounts to a warranty is a question of fact for the jury. Rogers v. AcTcerman, 22 Barb. 134. But it has been held that a representation that the animal is of any specified age is a warranty that he is no older. Burge v. Stroherg, 42 Ga. 89. Where a broker, on a sale of cotton by sample, assures the purchasers that the samples 80 SALE. Warranty. are fairly and honestly drawn, and that they may depend npon the bales turning out, when opened, equal to the samples, this, if not conclusive evidence of an agreement to warrant, is enough to go to the jury, on that question. Brower v. Lewis, 19 Barb. 574. A distinct assertion of the quality of a chattel, made by the owner during a negotiation for its sale, which it may be supposed was intended to cause the sale, and which was operative in causing it, is sufficient to constitute a warranty, if the jury are satisfied that such was the intention. This was so held in an ac- tion for a breach of warranty of the soundness of oysters, where the plaintiff said he did not want the oysters if they were not good ; to which the defendant said, " I cut holes in the ice and took them out fresh." Blakeman v. Maohay, 1 Hilt. 266. The plaintiff told the de- fendant that he would not exchange horses, unless the defendant would warrant his horse to be sound, to which the defendant answered, " he is a sound horse except the bunch on his leg." The plaintiff gave proof tending to show that the horse had the glanders. Verdict and jiidg- ment for the plaintiff, and held evidence of a warranty. Roberts v Morgan, 2 Cow. 438. As it regards the buyer's rights under a warranty of soundness in the sale of a horse, the rule is stated to be that one who buys a horse warranted sound must be taken as buying him for immediate use, and has a right to expect one capable of that use, and of being immediately put to any fair work the owner chooses. The rule as to unsoundness is, that if at the time of the sale the horse has any disease, which either does diminish the natural usefulness of the animal so as to make him less capable of work of any description, or which in its ordinary pro- gress will diminish the natural usefulness of the animal, or if the horse has either from disease or accident undergone any alteration of struct- ure, that either actually does at the time, or in its ordinary effects will, diminish the natural usefulness of the horse, such horse is unsound. Parke, B., in Coates v. Stevens, 2 M. & Rob. 157 ; Kiddell v. Bur- nard, 9 M. & W. 668. And see Roberts v. JenUns, 21 N. H. 116 ; Schurtz V. Kleinmeyer, 36 Iowa, 392 ; HolUday v. Morgan, 1 El. & El. 1. Every species of unsoundness, which causes damage to the pur- chaser, whether by total loss of the property, or by imposing a neces- sity to incur expenses to a partial extent, is a breach of a warranty of soundness. Shewalter v. Ford, 34 Miss. 417. Where a horse was purchased to use in harness and the vendor said he was "all right," it was held to be a warranty of soundness and of his fitness for use in harness. Smith v. Justice, 13 Wis. 600. And testimony that the plaintiff offered a certain price for a horse upon SALE. 81 Warranty. condition that he was sound, and received the price offered, was held to be sufficient to go to the jury as evidence of a warranty. Quintard V. Newton, 5 Robt. T2. So, where the jury found the words " I recom- mend this horse as having one good eye," to be a warranty, the court refused to disturb the verdict. Kinley v. Mtzpatrich, 5 Miss. 59. So, a bill of sale of " one horse, sound and kind," is a warranty of soundness ; and it is held that upoii such warranty the vendor is liable if the horse proves to be incurably lame, although the purchaser saw the horse and knew that he was lame before the sale, and the vendor being spoken to on the subject, refused to give a warranty. Brown v. Bigelow, 10 Allen, 242. But see Wason v. Eowe, 16 Yt. 525. So, an assertion by a vendor of cows that " they are all coming in in good season in the spring," the vendor knowing from the vendee's state- ments that this is important for the purposes for which the vendee is buying them, may be found by a jury to constitute a warranty. Richard- son V. Mason, 53 Barb. 601. But an answer by the seller, given in reply to a question as to the soundness of a horse, that "he thought he was" sound, does not amount to a warranty. Lindsay v. Davis, 30 Mo. 406. • Upon the sale of goods which were fancy articles, it was falsely stated by the agent of the owner that they were French goods, new, and in good order, and just imported from France; it was held that such representations were not mere puffing ones, nor statements as to the value or condition of the goods which a mere inspection could de- tect ; but that the averments were material, as the goods were a fancy article depending in a great degree for their value upon the fact that they were French, just imported, and new ; and, consequently, fashion- able and salable. Holman v. Dord, 12 Barb; 336. In an action on the case on a false warranty, it is enough to aver and to prove that the warranty was false, and that the purchaser was deceived by it. lb. Where the language employed by the vendor is the mere expression of his opinion in relation to the article sold, and it was so understood by both parties at the time, there wiU be no warranty. "Where personal property is purchased upon a njisrepresentation of its value, but such representation is made in good faith, and in an honest belief of its truth, the purchaser must pay a note given by him for its price, he having retained the property bought, although it may have been worth- less at the time of the purchase. To constitute a defense to an action to recover the contract-price of property sold, it is necessary to prove more than that the vendor expressed an erroneous, opinion of its value, in which the purchaser chose to confide, instead of exercising his own 11 82 SALE. Warranty. judgment exclusively, or consulting others more competent to judge than himself, where the opinion was honestly expressed, and no deceit was practiced to put him off his guard. United Stales Trust Co. v. Harris, 2 Bosw. 76; MoCrachan v. CJwlwell, 8 K Y. 133. A. dealer who sells an article, describing it by the name of an article of commerce, the identity of which is not known to the purchaser, must understand that the latter relies upon the description as a repre- sentation that it is the thing described ; and this, constitutes a warranty. White V. Miller, 71 N. Y. 118 ; S. C, 27 Am. Rep. 13. Thus, if dealers in garden seed inform a firm of market gardeners that they have raised and have for sale a quantity of " large Bristol cabbage seed " and solicit orders therefor, and on receiving an order minute it on a catalogue opposite the name of the variety ordered, and after- ward deliver seed marked and billed as " large Bristol cabbage," they will be held to have warranted that the seed was of that variety. lb. So when the defendants sold to the plaintiff a parcel of turnip seed and gave them a sold note in which it was described as " Skirving's Swedes," the court held that the statement in the sold note was not a mere representation or matter of description, but that it amounted to a warranty that the seed was Skirving's Swedes. Allan v. Lalce, 18 Ad, & El. ]Sr. R. 561. And it is now generally held that where a bill of parcels is given upon a sale of goods, describing the goods or designating them by a name well understood, such bill is to be con-, sidered as a warranty that the goods sold are what they are thus de- scribed or designated to be. See Whiter. Miller, ^11^. Y. 118; Heri^ shaw V. Robins, 9 Mete. 83; Bradford v. Manly, 13 Mass. 144; Boneliins v. Bevan, 3 Serg. & R. 37 ; Bridge v. Main, 1 Starkie's B. P. 505. Where an article having the appearance of blue vitriol, and not capable of being distinguished from that article by mere inspection, is sold at public auction as blue vitriol, the person purchasing it, relying on the statement of the auctioneer as to its character, may insist that the representation that it was blue vitriol is a warranty. Hawkins v. Pem- lerton, 51 N. Y. 198 ; S. C, 10 Am. Rep. 595. If, at the time of sale, the vendor represents the goods sold to be an article known in the market by a particular name, and the vendee purchases, relying upon the statements, without having an opportunity to examine the goods to ascertain whether they agree with the representations, or if he does examine them, but an examination will not enable him to discover whether they agree with the representations, a warranty is implied that the goods are of the kind, character and description represented. Ya/n Wi/ek V. Allen, 69 N. Y. 61 ; S. C, 25 Am. Rep. 136. SALE. 83 Warranty. The general rule is, that a warranty, to be binding, must be made at the time of the sale. ShuU v. Ostrander, 63 Barb. 130. A warranty made after that time would be without consideration, and would be void unless some new consideration is given to support it. Summers v. Vaughn, 35 Ind. 323 ; S. C, 9 Am. Rep. 741; Coiigor V. Chamherlain, 14 Wis. 258. But in relation to representations or offers of warranty which have been made during negotiations that occurred some time before the actual sale, the rule is not settled uniformly. If negotiations are entered into, and representations are made or a warranty offered, and the parties break off all further negotiations upon the subject, there will not, by the English law, be any warranty, if a sale subsequently takes place without any further representations of warranty. 1 Com. Dig. 359, Deceit A. 11 ; Hopkins v. Tanquary, 15 C. B. 130; 2 Car. & Kir. N. P. 'oA:^. In one case in this State, however, it appeared that a vendor offered to warrant a horse sound, during a negotiation, but the sale did not take place at the time, though a few days afterward the vendee purchased the horse. There was no evidence of any warranty at the time of the sale ; but it was held that a verdict in favor of the plaintiff, who sued for a breach of the warranty, was conclusive. Wil- moi V. Surd, 11 Wend. 584. In such a case the jury were perhaps authorized to infer that, in the absence of any further negotiations be- tween the parties, they intended that the previous negotiations should be considered a part of the transaction at the time of the sale, and if that were so, a clear warranty was made out. If, however, the jury had found the other way, their verdict would have been equally conclusive. It is now settled law in this State that representations made by one offering to sell property to another negotiating for its purchase are a part of the res gestcB, and binding upon the person making them, although a bargain is not concluded at the time, if afterward, as a con tinuance of the negotiation, such other person becomes a purchaser. Aherii v. Goodspeed, 72 N. Y. 108. The general rule is, that a warranty does not extend to those defects which are plainly open and visible at the time of the sale. Day v. Pool, 62 N. T. 416 ; S. C, 11 Am. Rep. 719 ; Bennett v. Buchan, 76 K Y. 386. And where a negro was sold with a warranty that he was in good health, and in all respects sound, and the bill of sale and warranty were in writing, it was held that the vendor might show, in an action for a breach of warranty, that the vendor, at the time of the sale, pointed out to the vendee the defect in question, which was, that the left arm M'as thin and crooked and that it was plainly visible, and a verdict in favor 84 SALE. Warranty. of the defendant was sustained. Schuyler v. Muss, 2 Gaines, 202. The reason why a warranty is not construed to bind the vendor to answer for visible or known defects is, that both parties are supposed to intend that such defects shall be excluded from the warranty. • But a warranty may be made by express terms to include visible or known defects as well as any others. And if the vendor expressly warrants that a present lameness of a horse will be cured in a given time, or, that it will not injure him, the warranty is valid, and an action will lie for a breach of it. To prevent a recovery for a breach of warranty upon thfe sale of a horse, on the ground that the defects existed, and were visible at the time of the sale, it must be shown that the defects were such as could be discerned by an ordinary observer examining the property with a view of trading for it or of purchasing it, and were not such as to re- quire skill to detect them. Birdseye v. Frost, 31 Barb. 36Y ; Chatfield V. Frost, 3 Sup. Ct. (T. & C.) 357 ; Shewalter v. Ford, 34 Miss. 417. If a horse warranted perfect is without an eye or a tail, this gives no cause of action, and the general rule applies that a warranty does not extend to patent defects. But the rule does not extend to a case where the purchaser was aware of the existence of disease, yet its precise character not being obvious to the senses, its extent was uncertain and unknown. Nor does the rule apply where the vendor leads the purchaser to believe that the apparent defects are in reality not a cause of unsoundness. Chatfield v. Frost, 3 Sup. Ct. (T. & C.) 357. The acts and declarations of a vendor may be such at the time of sale that he will be estopped from subsequently insisting upon the de- fense, that the defects in the property were visible at the time of the sale. Where, upon the sale of a quantity of wool, the only portion of the wool visible was that which protruded from the corners of the blankets in which it was tied up, and where the purchaser, at the time of the sale, remarked that the wool seemed damp, to which the vendor replied that it was not damp, but was dry and in good order, it was held that the ven- dor's assertion was a warranty that the wool was not damp, and that it was in good order, and that it covered any defect which related to the condition of the wool. Wilbur v. Ca/rtright, 44 Barb. 536. In such a case the purchaser has a right to rely upon the vendor's statement, and he need not examine the article further, and if the statement is untrue, the purchaser may recover such damages as he has sustained by reason of the defect. lb. ; Ola/rli v. Ranhin, 46 Barb. 570. But a SALE. 85 Warranty. mere praise of personal property, such as wool, or a horse, or other chattel, indulged in by the owner when offering it for sale, does not amount to an implied warranty of its quality or condition, if the buyer has an opportunity to examine it and fails to do so, and no artifice is used by the seller to prevent him from making an examina- tion. Byrne v. Jansen, 50 Cal. 624. And see Richa/rdson v. Bouok, 42 Iowa, 185. A warranty may exist in the case of an executory contract, when the defect in the property is incapable of discovery at the time of delivery. In such case the purchaser may retain the property and sue upon the warranty ; but if the defect is open, visible and notorious at the time of delivery, the purchaser is bound to reject the articles and refuse to re- ceive them as a compliance with the contract, or he will waive his right to damages. FarTcs v. Morris Ax Co., 54 IST. T. 586 ; Brown v. Burhans, 4 Hun, 227. See Phelps v. Quinn, 1 Bush (Ky.), 375 ; MoClung v. KeUey, 21 Iowa, 508 ; Bounce v. Bow, 57 N. Y. 16. "Where upon the trial of an action in justice's court for the breach of a warranty in the sale of a horse, the question whether the defects complained of were visible at the time of 'the sale or trade so as to take them out of the operation of the warranty is before the justice or a jury and is passed upon by either of them, such finding is conclusive. Birdseye v. Frost, 34 Barb. 367. The question whether the defects were visible, and therefore not reached by the warranty, is not a ques- tion of law merely ; it has been sometimes called a mixed question of law and fact. lb. The question, however, is really one of fact, from which the legal conclusion follows when the facts are settled. If the defects are not visible without skill, etc., then a general warranty in- cludes them ; if they are visible to one not skilled, then the warranty does not extend to such defects. An agent who is authorized to sell an article is presumed to possess tiie power of warranting its quality and condition, unless the contrary appears ; and this is so whether the agency is general or special. Nel- son V. Cowing, 6 Hill, 336 ; Beele v. Bobert, 12 Wend. 413 ; Ahem v. Ooodspeed, 72 N. T. 108, Vol. I, 483. But the representations of the agent about the subject-matter of the contract must be made during and in the course of the negotiation, while the agent is actually representing his principal therein, or they will have no more effect than if made by a mere stranger. Ahem v. Goodspeed, 72 N. T. 108. See White v. MiUer, 71 id. 118. To sustain an action upon a warranty, it is not necessary that all the representations made by the defendant should be false, or that all should 86 SALE. Warranty. be actionable. If any part of the representations are actionable, it will suffice. S^oe(it v. Bradley, 24 Barb. 549. Where a partner, upon sell- ing promissory notes belonging to the firm and which were sold for their benefit, stated to the purchaser that he would warrant them to be good notes, and that they would be paid ; that they were given for a valuable consideration, and were regular business paper ; that the makers were responsible, and worth $40,000 or $50,000, and that the indorser was worth $25,000; which representations were false and the makers insolvent, — it was held, that the firm was bound by the representations made by the partner on selling the notes, and that an action would lie against all the members of the firm, upon the warranty, lb. ;Yol. I, 541. A positive affirmation of a fact is a sufficient warranty. And an affirmation in regard to an existing fact, which is distinctly and positively made, in negotiations for a trade or sale, should be regarded as a contract, and enforced as a warranty. lb. ; Garley v. Wilkins, 6 Barb. 55T ; Whitney v. Sutton, 10 "Wend. 411 ; Rogers v. Aokerman, 22 Barb. 134 ; Chapman v. Murch, 19 Johns. 290. Where a warranty of a thing has reference to a purpose for which it is to be used, the rule of indemnity, on a breach of the warranty, must include the damages which naturally followed, and might be expected to follow, its violation, when the thing warranted is put to the intended and understood use ; provided such damages are in their nature certain, and it is also certain that they proceeded from the breach of the war- ranty. Passenger v. Thorium, 35 Barb. 17 ; S. C. affirmed, 34 N. Y. 634. The plaintiff, who was a market gardener, applied to the defendant for seed of a particular kind of cabbage, the Bristol. The defendant being acquainted with the plaintiff's business, and the purpose for which the seed was wanted, produced gome seed, and showed the vendee a sample of the cabbage which the seed would produce ; and the vendor declared that he knew the seed was Bristol cabbage seed and he warranted it as such. The seed was purchased and planted, and it proved not to be Bristol cabbage seed, and the crop produced was of but little value ; it was held that the vendor was liable for his breach of warranty, and that the measure of damages was such loss as the plaintiff could prove he had sustained because the crop was not what the warranty required it should be. lb. This would be the differ- ence in value between the crop raised from the defective seed and a crop of Bristol cabbages such as would have ordinarily been produced that year. White v. Miller, 71 N. Y. 118 ; S. C, 27 Am. Rep. 13 ; S. C. again, 78 N. Y. 393. Gains prevented as well as losses sustained SALE. 87 Warranty. may be recovered as damages for a breach of contract, where tliey can be rendered reasonably certain by evidence, and have naturally resulted from the breach. Messmore v. N. Y. Shot and Lead Co., 40 N. Y. 422. But mere contingent or speculative gains or losses, with respect to which no means exist of ascertaining with any certainty whether they would have resulted or not, ai-e rejected, and the jury will not be allowed to consider them. lb. ; White v. Miller, 71 N. Y. 118 ; S. C, 27 Am. Eep. 13. Where material is sold, to be manufactured into articles of merchan- dise, with warranty of its quality for the purpose, upon a breach, the difference in value between the articles made o£ the defective material and similar articles made of material equal to the warranty is a proper measure of damages. And the vendee is not confined to the market-prices in ascertaining that difference. Parhs v. Morris Ax and Tool Co., 60 Barb. 140 ; S. C, 4 Lans. 103 ; 41 How. IS ; S. C. affirmed, 54 N. T. 386. So, upon a sale of hop roots, the vendee at the time of sale, and with knowledge that the buyer purchased the same for cultivation, warranted them to be female or productive roots, when in fact a large number of them were male or unproductive roots. The crop having proved a failure, the buyer brought his action to recover damages for a bi-each of the warranty, and he was held to be entitled to recover all the damages sustained by him, including the difference between the value of the crop actually raised and of that of the crop that would have been raised had all the roots been female or productive ones. Schutt v. Baiter, 9 Hun, 556. So, where the plaintiff, a farmer, purchased seed from the defendants which they warranted was cabbage seed of a particular variety and growth, with the intention of planting it and raising a crop of cabbages, and the defendants knew with what intention he made the purchase, — it was held that the measure of damages for a breach of the warranty, M'here there was no crop at all produced, was the fair value of the crop which would under ordinary circumstances have been raised if the seed had been what it was represented to be, taking into consideration all the hazard arising from the elements or from natural causes which might have prevented a full crop, and deducting what it would cost to harvest the crop and prepare it for market. Van Wtjch V. AlUn, 6 Daly, 376 ; S. C. affirmed, 69 N. Y. 61 ; S. C, 25 Am.Kep. 136. And see Randall v. Rajper, El. Bl. & El. 82 ; Brooks v. Mo- DonneU, 41 Wis. 139. But where property is sold with a warranty, to be applied to a particu- lar use, if it be of such a nature that its defects can be readily ascertained, and in fact are ascertained, and yet the purchaser persists in using it, 88 SALE. Warranty. whereby losses and expenses are incurred, he does so in his own wrong, and cannot recover the amount of such expenses and losses as damages for a breach of the warranty. Thus the defendants sold to the plaintiffs a quantity of steel, warranting it to be first-class steel with knowledge that it was to be used to make oil-driUs. The steel proved unsuitable for that purpose, and the defects in it were discovered as soon as the plaintiffs began to use it, — and it was held that they had no right after that to go on making drills in the expectation of recovering of the de- fendants, upon the warranty, the expenses or loss of profits. Drajper v. Sweet, 66 Barb. 145. The sellers of wool knew that it was purchased by the plaintiffs for the purpose of being manufactured into hats, and that if there was any cotton in it, it would be unfit for the purpose intended, but they did not warrant that it vjas Jit for that purpose, but only that the flocks con- tained no cotton ; it was held that the jury had no right to infer, from the evidence, that the defendants meant to warrant that the wool would be fit for the purpose for which they knew it was bought, the only warranty which it was proved that they gave, being restricted in terms to the fact that there was no cotton in the wool. Prentice v. DiTce, 6 Daer, 220. Knowledge on the part of a vendor of an article who is not the manufacturer thereof, that the purchaser desires or intends to use the article bought for a particular purpose, does not furnish any ground for an implied warranty that it is fit for that purpose ; and, if there is no express warranty, the purchaser takes the property at his own risk as to quality or fitness for his purposes. Bartlett v. IToppocTc, 34 IT. T. 118 ; Dounce v. Dow, 6 Sup. Ct. (T. & C.) 653 ; S. C. affirmed, 64 N. T. 411. See S. C. before, 5T id. 16. Thus where a mere dealer in " pig metals," sold "XX pipe iron," knowing the purpose for which it was to be used, the court held that there was a warranty merely that the iron was "XX pipe iron," but not that it was any particular quality of that brand, and that if the vendee wanted any farther protection under his contract he should have exacted a specific warranty. lb. " Although, when goods are ordered and manufactured for a particular purpose, there is an implied warranty that they sliall be fit for the pur- pose specified, we know of no adjudged case in which such a warranty lias been implied where the contract was merely for the sale of goods in their actual state, and certainly no such doctrine is to be found in any of the cases to which we were referred. We are satisfied that if there is any such decision, it will be found upon examination that the facts in SALE. 89 Warranty. the case were widely different from those in the case before its. We are satisfied that such a warranty cannot be imphed, either by the court or jury, merely from the facts that the purpose for which the goods were bought was known to the seller, and that he said at the time that in his opinion they were suitable for the purpose intended ; still less can the warranty be implied, when an express warranty is proved to have been given, limited by its terms to a distinct and independent fact. We think that such an express warranty excludes the supposition that any larger one was intended than its terms embrace. Hence, if the plain- tiffs or their agents, in the present case, desired a larger warranty than the terms of the express warranty embraced, they should have required it to be given as a condition of their purchase ; they had no right to rely upon a larger warranty as implied." Dueb, J., m Prentice y . Dike, 6 Duer, 220, 223, 224. And see Hotclikiss v. Oage, 26 Barb. 141. But as a general rule, upon the sale of an article by the manufacturer, there is an implied warranty that it will answer the purpose for which it was made. Briggs v. Pa/rhinson, 7 Hurlst. & Norm. 905 ; Pield v. Kinnear, 4- Kans. 4Y6 ; Pacific Iron Works v. Newhall, 34 Conn. 6Y ; Brown V. Murphee, 31 Miss. 91. " The general rule is well understood, that in the sale of any article of merchandise, a warranty cannot be implied of the goodness of the article, from the fact that a sound price has been paid or agreed to be paid ; and that redress cannot be had, although the article sold is not a salable, merchantable article, unless there be a warranty of its sound- ness or quality, or unless the vendor has been guilty of a fraud in the sale. In such sales, the purchaser can always protect himself by de- manding a warranty ; if that be not required, and there be no fraud on the part of the vendor, the purchaser buys at his own risk, his judgment is his only warrantor, and he has no right to call on the vendor for any damages he may have sustained, by the article being different or of an inferior quality from what he expected he was purchasing." Per Mai- son, Senator, in Wright v. Hart, 18 Wend. 455. And see Holden v. Dakin, 4 Johns. 421. A written warranty in a contract of sale excludes any parol warranty. Shepherd v. Qilroy, 46 Iowa, 193. So, an express warranty excludes any implied warranty. MoQraw v. Fletcher, 35 M.ich. lOi. And see Midlain v. Thomas, 43 Conn. 252. No custom or usage is admissible to show that the sale of any particular article implies a warranty of the goodness of that article, because no custom can be admitted to control the general rules of law. Thompson v. Ashton, 14 Johns. 316 ; ap- proved, Beirne v. Dord, 5 N. Y. 102; Wheeler v. Newbould, 16 id. 12 90 SALE. . Warranty. 393 ; Bolton v. Daniels, 2 Hilt. 472. Nor is evidence of custom or usage admissible to contradict, modify, or affect an express agreement between the parties. lb. But it has been held that where a custom is sliown to exist in a par- ticular trade or business, persons engaged in that business are presumed to contract with reference to the custom, unless it is otherwise ex- pressly agreed. Dalton v. Daniels, 2 Hilt. 472 ; Minion v. Locke, 5 Hill, 437; Allen v. Merchants' Bank, 22 Wend. 215. The subject of customs and usages will be explained elsewhere. No maxim of the law is more firmly established or more frequently applied in relation to the law of sales than tliat of " caveat emptor." The meaning of this maxim is, that in all executed sales, or in sales of property which the vendor has on hand at the time of making the contract of sale, the pur- chaser must examine the quality of the thing sold, or that he must take the article at liis own risk as to its quality, if there is neither an express warranty or fraud on the part of the vendor. Wright v. Hart, 18 "Wend. 449, 455 ; United States Trust Co. v. Harris, 2 Bosw. 76 ; Hotchhiss V. Gage, 26 Barb. 1 41 ; Early v. Garrett, 9 Barn. & Ores. 928 ; Hall v. Gonder, 2 C. B. (N. S.) 22. This doctrine of caveat emptor is sanctioned by all the courts of the United States where the common law prevails, with one exception. See Barnard v. Kellogg, 10 Wall. 383, 388. The exception is South Carolina. Barnard v. Yates, 1 Nott & McC. 142. A few cases will now be noticed for the convenience of those who have not a ready means of access to the reported cases. Where casks are sold by one who buys and sells them as an article of merchandise, without fraud or express warranty, the loss, if they prove leaky, falls upon the purchaser. Yan Riper' v. Ackerman, 3 E. D. Smith, 58. So, where a drover brings cattle to market and sells them to a butcher to be slaughtered, but without fraud or an express war- ranty, the drover will not be liable to an action because the cattle were bruised in the cars on their way to the market. Goldrich v. Rya/n, 3 E. D. Smith, 324. Where the vendor sold white lead as a good article, and for full price, but the kegs had never been opened since their purchase in New York, and there was no fraud or express warranty, it was held that the vendor was not liable to an action at the suit of the vendee. Holden V. Dakin, 4 Johns. 421. So, where a wagon was sold, and the vendor affirmed that it was worth $50, and that he had been offered that sum for it, but the wagon was not worth over $25, and there was no war- ranty nor pi'oof of fraud, the court said ; " The plaintiff below pur- chased the wagon on sight, and the assertion of the defendant that it SALE. 91 Warranty. was worth more than its real value furnishes no ground of action." Damis v. Meeker, 5 Johns. 354. So, where stocks are sold, there is no implied warranty as to their value. Cunningham v. Spier, 13 Johns. 893 ; United States Trust Go. V. Harris, 2 Bosw. 76. To a banker or broker who deals in de- preciated bills as an article of commerce, the rule of "caveat emptor ^^ applies ; and if a bank bill purchased by a broker proves to be of less value than the price given for it, the vendor is not bound to make it good, especially w^here the transaction is in good faith. HinMey v. Kersting, 21 111. 247. So, the rule of " caveat emptor " applies as well to a sale of stocks as to a sale of chattels ; and a vendor thereof can be made liable only for misrepresentation or fraud. Reuton v. Maryatt, 21 N. J. Eq. 123. See Porter v. Bright, 82 Penn. St. 441. In the leading English case of Jones v. Just, L. R., 3 Q. B. 197, the previous cases are carefully collected and reviewed, and are held to establish the following propositions : First. Where the goods are in esse, and may be inspected by the buyer, and there is no fraud on the part of the seller, the maxim, " ca/oeat emptor " applies, even though the defect which exists in them is latent, and not discoverable on examination, at least where the seller is neither the grower nor the manufacturer. In such a case it is not an implied term of the contract of sale that the goods are of any par- ticular quality, or are merchantable. See, also. Rice -^ .Forsyth, 41 Md. 389 ; Deming v. Foster, 42 JST. H. 165 ; Bowman^. Clemmer, 50 Ind. 10 ; Barnard v. Kellogg, 10 Wall. 383. Second. "Where there is a sale of a definite, existing chattel specific- ally described, the actual condition of which is capable of being ascer- tained by either party, there is no implied warranty. See, also. Hill v. If'orth, 34 Vt. 604 ; ' Williams v. Ingram, 21 Tex. 300. Third. Where a known, described and defined article is ordered of a manufacturer, although it is stated to be required by the purchaser for a particular purpose, still if the known, described and defined thing be actually supplied, there is no warranty that it shall answer the par- ticular purpose intended by the buyer. See, also, Port Garhon Iron Go.^. Graves, 68 Penn. St. 149 ; McGraw v. Fletcher, 35 Mich. 104. Fourth. Where a manufacturer or dealer contracts to supply an ar- ticle wliich he manufactures or produces, or in which he deals, to be applied to a particular purpose, so that the buyer necessarily trusts to the iudgment or skill of the manufacturer or dealer, there is in that case an implied term or warranty that it shall be reasonably fit for the purpose to which it is applied. In such a case the buyer trusts to the 92 SALE. Warranty. manufacturer or dealer and relies upon his judgment, and not upon his own. Fifth. Where a manufacturer undertakes to supply goods, manu- factured by himself, but which the vendee has not had the opportunity of inspecting, it is an implied term in the contract that he shall sup- ply a merchantable article. See, also, Shepherd v. Pybus, 3 Man. & Gr. 868; Oautier v. Douglass Manuf. Co., 13 Hun, 514. As regards the merchantable quantity of goods sold, where the purchaser has an opportunity of inspecting them, the rule of law seems to be that the seller may let the buyer cheat himself ad libitum, but he must not actively assist him in doing so. Armstrong v. Bufford, 51 Ala. 410 ; Morris v. Thompson, 85 111. 16. And see Morehouse v. Gomstock, 42 Wis. 377. But the rule of "caveat emptor" never ap- plies to cases of fraud. Irving v. Thomas, 18 Me. 418 ; Otts v. Al- derson, 10 Sm. & M. (Miss.) 476. Nor where the vendor uses any de- vice to put the purchaser ofE his guard, or resorts to trick or artifice to take advantage of him. Prescott v. Wright, 4 Gray, 461 ; HeUtutt v. Hickson, L. E., 1 0. P. 438. But " mere silence," where there is no special trust between the parties, and no legal or equitable obligation not to conceal implied in the circumstances of the case, will not render the vendor liable. Pidcock v. Bishop, 3 Barn. & Ores. 605 ; Biggs v. Perkins, 75 N. 0. 397. Where merchandise is sold " to arrive," which the vendor has not on hand, and which neither party can inspect, it would be contrary to sound morality and public policy to enforce the doctrine of " caveat emptor," and compel the purchaser to pay for goods of an unmerchant- able quality. In such a case there is an implied engagement in the contract itself that the article sold should be merchantable. Newbery V. Wall, 3 Jones & Sp. 106 ; S. 0. afiirmed, 65 IST. Y. 484. Other cases in which the sale is executory, and in which the article is to be manufactured, will be noticed hereafter. One exception to the rule of ca/veat emptor is where the sale is made by sample. A sale by sample contemplates that the goods are in being ; that the sample is taken from the bulk ; and that the bulk is equal in quality to the sample. This is sometimes called an implied warranty, but it is more properly an express warranty. It amounts to an affir- mation that the specimen is a fair sample of the biilk of the com- modity. Owney v. Atlantic and Great Western R. li. Co., 58 N. Y. 358. " When a contract for the sale of goods is made by sample, it amounts to an undertaking, on the part of the seller with the pur- SALE. 93 Warranty. chaser, that all the goods are similar both in nature and quality to those exhibited, and if they be not, the purchaser may either rescind the con- tract by returning the goods in a proper time, or keep them and re- cover damages for a breach of such warranty." Per Jewett, J., in Beirne v. Dord, 5 N. Y. 98, 99. " Bat the mere circumstance that the seller exhibits a sample at the time of the sale will not of itself make a sale by sample, so as to sub- ject the seller to liability on an implied warranty as to the nature and quality of the goods, because it may be exhibited, not as a warranty that the bulk corresponds to it, biit merely to enable the purchaser to form a judgment on its kind or quality. If the contract be connected by the circumstances attending the sale with the sample, and refer to it, and it be exhibited as the inducement to the contract, it may be a sale by sample, and then the consequence follows that the seller war- rants the bulk of the goods to correspond with the specimen exhibited as a sample. Whether a sale be a sale by sample or not is a question of fact for the jury to find from the evidence in each case ; and to authorize a jury to find such a contract, the evidence must satis- factorily show that the parties contracted solely in reference to the sample exhibited. That they mutually understood that they were deal- ing with the sample as an agreement or understanding that the bulk of the commodity corresponded with it, or, in other words, the evidence must be such as to authorize the jury, under all the cir- cumstances of the case, to find that the sale was intended by the par- ties as a sale by sample." lb.; Jones v. Wasson, 59 Tenn. 211 ; Osborn V. Gantz, 6 Jones & Sp. 148 ; S. C. afiirmed, 60 N. Y. 540. The plaintiff, a merchant in New York, received an order from Mexico for a quantity of cotton sheeting, having over thirty threads to the Mexican quarter of a square inch. By the Mexican revenue laws the importa- tion of goods of less fineness was prohibited. The plaintifE employed a broker to make the purchase, who procured samples from the defend- ant, only one of which was found to be of the requisite fineness. The broker ordered the desired quantity of the goods of the quality of the approved sample. The defendant had only about half of the desired quantity, but he agreed to procure from Boston and deliver the residue in a short time, which he did. The whole was delivered, in bales, at a packing-house, at the plaintiff's request, where the bales were opened and the cloths repacked in larger bales, and forwarded to Mexico. On their arrival there, they were found to average only twenty-eight to twenty-nine threads to the quarter inch, and they were condemned and sold by the custom-house officers. The defendant was not notified 94 SALE. Warranty. that the goods were designed for the Mexican market, or what were the revenue laws there, or that goods having over thirty threads to the quarter inch were required. He had no glass to count the threads, which could not be counted without a glass. It was not unusual for goods of this kind, of the same general quantity, to vary one or two threads to the quarter of an inch. In an action to recover damages for the loss of the goods, alleging that there was a warranty that tlie goods delivered were of the same fineness as the sample, that they were of a quality which could be imported into Mexico, that they had over thirty threads to the Mexican quarter of an inch, etc., it was held that there was no evidence of such a warranty ; and that the plaintiff was rightfully nonsuited ; and that something beyond the mere exhi- bition of a sample is requisite to create a warranty that the bulk of the goods is of the same quality as the sample. Hargous v. Stone, 5 N. T. Y3. It was also held that, as to the goods procured from Boston, if the contract was to be regarded as an executory one to furnish goods of a particular description, the purchaser was bound to examine them when the bales were received and opened to be repacked, and to have returned them if the quality was not such as was promised ; that not having done so, he waived all objection on account of defects of quality, which would have appeared on such examination. lb. "Where blankets in bales were sold unopened, samples only being seen and examined by the purchaser, it was held that evidence of a custom among dealers in blankets to sell in that manner, and to make compensation to the purchaser in case the blankets, on such bales being opened, proved defective or inferior to the samples, where such evi- dence was clearly insufficient to establish a general commercial usage, was not proper to be submitted to the jury as bearing upon the ques- tion whether there was a warranty of the quality or soundness of the blankets on such sale. Beirne v. Dord, 5 IST. Y. 95. That a personal examination of the bulk of the goods by the pui'chaser at the time of the sale is not practicable or convenient furnishes of itseK no sufficient ground to say that the sale is hy sample, it is only a fact bearing upon the character of the sale. lb. And see the remarks of Jewett, J., in the same case quoted ante, 92, 93. In a sale of hemp, put up in bales, there is no implied warranty that the interior shall correspond in quality with the exterior of the bales, and if there be fraud, the vendor is not liable, unless it be shown that he was privy to it. Salisbury v. Stainer, 19 "Wend. 159. "Where the purchaser opens and examines one of several bales, and is at liberty to open others but omits to do so, and the quality of the hemp in the SALE. 95 Warranty. bales not examined does not correspond with that opened, he is not permitted to allege that the sale was by sample, nor to contend that he is entitled to recover damages as upon an implied warranty. lb. See, also, Waring v. Mason, 18 Wend. 425 ; Boorm.an v. Jenkins, 12 id. 566 ; Beebe v. Bobert, 12 id. 413 ; Sarnds v. Taylor, 5 Johns. 395, which were held to be sales by sample under the circumstances of .the case. The decisions in Hargous v. Stone and Beirne v. Dord have settled the law that the mere exhibition of a sample by the seller of goods at the time of the sale is not sufficient to create a warranty that the bulk of the goods corresponds in quality and soundness with the sample. Hence, if upon the trial of an action to recover damages for the breach of a warranty in the sale of goods, nothing more is proved than the exhibition of a sample at the time of the sale, it is the duty of the court to dismiss the complaint. Beirne v. Dord, 4 Dner, 69. If upon such evidence, and no other, the question whether a warranty was in- tended by the parties should be left to a jury, a verdict in favor of the TDlaintiff would be set aside as contrary to law. lb. It seems that the question whether a warranty was intended by the parties depends in all cases upon the facts that occurred at the time of the sale, and upon those alone. lb. "Where damaged cotton is sold by sample the sample should be a fair specimen of the whole — of the bad as well as of the good ; and if the seller warrants that the whole corresponds with the sample, he is liable in case it turns out to be different, although it was sold as a damaged article. Brower v. Lewis, 19 Barb. 574. And see ante, 92. A sale is sometimes made by what is known as " average sample." Thus, if the goods sold consist of several varieties and qualities of the same article, and the sample is made by mixing proportionate parts of the different varieties and qualities, the warranty is that the whole quantity, if mingled together, would be of a quality equal to the sample ; and it is no breach of the warranty that some of the packages are inferior to the sample, so long as it fairly represented the whole. Leonard v. Fowler, 44 N. T. 2S9. So, a custom may be proved that upon a sale of berries in bags by sample, the sample represents the average quality of the entire lot. Schnitzer v. Oriental Paint Worhs, 114 Mass. 123. But evidence that by the custom of merchants there is an implied warranty that goods are not falsely or deceitfully packed is inadmissible. Barnard v. I^ellogg, 10 'Wall. 383. Nor can a cus- tom be proved limiting the time of the purchaser to examine and re- turn the goods. Webster v. Granger, 78 111. 230. Executory contracts of sale do not depend upon the same principles 96 SALE. Warranty. as executed contracts of sale. The doctrine of implied warranty has properly no application to the former. " Where a contract is executory, that is, to deliver an article not de- fined at the time, on a future day, whether the vendor has at the time an article of the kind on hand, or it is afterward to be procured or manufactured, the contract carries with it an obligation that the article shall be merchantable, or at least of medium quality or goodness. If it comes short of this, the vendee may rescind the contract and return the article after he has had a reasonable time to inspect it. He is not bound to receive or pay for it because it is not the thing he agreed to purchase." Per Paige, J., Hargous v. Stone, 5 N. Y. 86. Where ale is to be brewed and delivered on a future day, there is an implied warranty that the article shall be of merchantable quality; and if it is not of a medium quality of goodness the vendee may return it after a reasonable time to inspect it, and it is sufficient to entirely de- feat the sale, if there be a notice by the vendee to the vendor to take it back, where such notice assigns the true ground. Howard v. Hoey, 2'3 AVend. 350. Upon the sale of a chattel by the manufacturer, a warranty is implied that the article sold is free from any latent defect growing out of the process of manufacture. When, however, there is a latent defect in the materials employed, the manufacturer is liable, as upon an implied war- ranty, in those cases only in which it is proved, or it is to be presumed, that he knew of the defect. Hoe v. Sanborn, 21 N. Y. 552. It seems that the theory of the common law in respect to implied warranties rests upon the deceit of the vendor in not disclosing defects, of which, the probability of his knowledge is so great, that its exist- ence is presumed. lb. Where the knowledge of the vendor can be proved by direct evidence, his responsibility rests upon the ground of fraud. lb. The difference between the two cases is, that in one the scienter is actually proved, in the other it is presumed. lb. See Lit- tauer v. Goldman, 72 N. Y. 506, 513. The vendor of an article for a particular purpose does not impliedly warrant it against latent defects unknown to him, and which have been produced by the unskillfulness of the marmfacturer or previous owner, without his knowledge or fault, except where the sale is, of itself, equivalent to a positive affirmation that the article has certain inherent qualities inconsistent with the alleged defects. Bragg v. Morrill, 49 Vt. 45 ; S. 0.,' 24 Am. Eep. 102. Thus, if a person who has turned a shaft made by another, and pre- pared it for the pulleys, sells it for the purpose of driving machinery, he will not be liable for the breaking of the shaft by reason of defects SALE. 97 Warranty. in the original manufacture not discernible by ordinary inspection, nor ■will lie be deemed to have warranted it against such defects. lb. See Dounoe v. Dow, 64 N. Y. 411 ; Randall v. Newson^ 2 Q. B. Div. 102; S. 0., 19 Eng, Eep. 243. In the case last cited it is held that on the sale of an article for a specific purpose, there is a warranty by the vendor that it is reasonably fit for the purpose, and that there is no ex- ception as to latent undiscoverable defects. Where the vendor sells a growing crop, which he agrees to dehver in " merchantable order," he is bound to deliver good, sound articles. Hamilton v. Ganyard, 34 Barb. 204. Where wheat is sold in the stack {Fish v. Moseberry, 22 111. 288), or where lumber is sold without an opportunity for examination by the vendee (Merrion v. Field, 39 Wis. 50), there is an implied warranty that it is merchantable. So on the sale of a flock of sheep or a drove of horses, there is an implied war- ranty that they are, as a body, ordinarily good, and have not been picked and culled for the purpose of deception. Colooch v. Beid, 3 McOord (S. C), 513. On the sale of a promissory note there is an implied war- ranty that it is genuine and not forged. Aldrich v. Jackson, 5 E. I- 218 ; McOay v. Barber, 37 Ga. 423 ; Uannum v. Richardson, 48 Vt. 508 ; S. C, 21 Am, Rep. 152 ; Flynn v. Allen, 57 Penn. St. 482 ; Terry v.Rissell, 26 Conn. 23 ; Bumontv. Williamson, 18 Ohio St. 515. There is the same warranty on the sale of a negotiable bond. Smith v. MoNair, 19 Kans. 330 ; S. C, 27 Am. Rep. 117. And on the sale of a judgment by a person not a party to it, there is an implied warranty of title, and that the judgment is due and unpaid. Farniss v. Ferguson, 34 IS". Y. 485. See Bennett v. Bucham,, 61 id. 222. Where perishable goods are sold to be shipped to a distant market, there is an implied warranty that they are properly packed and fit for shipment, but not that they will continue sound for any definite period. Mann v. Evertson, 32 Ind. 355. Where, on a purchase of provisions, as merchandise to be sold again by the buyer, they are in a situation to be examined, and are examined as fully as the buyer deems necessary, and there is no fraud, nor ex- press warranty, nor representation amounting to a warranty, the maxim, caveat emptor, applies ; and although, on a subsequent further examina- tion, a portion proves to be unsound and worthless, the buyer is liable for the contract-price. Hylxmd v. Shermam,, 2 E. D. Smith, 234. Where provisions are sold as merchandise, and not for immediate con- comption by the purchaser, there is no implied warranty of their sound- ness. Moses V. Mead, 6 Denio, 617 ; S. C, 1 id. 378. In a recent case it is held that, in all cases of an executed contract of sale of articles 13 98 SALE. Warranty. of food, when the vendor has personal knowledge of the quality and condition of the articles sold, which are not known to the purchaser, and knows that the purchaser intends to use the articles for food, or to sell them to others to be used for that purpose, the law implies a war- ranty that the articles are sound, wholesome and fit to be used as articles of food. Burch v. Spencer, 15 Hun, 504. It is clear that on a sale of provisions for domestic use, there is always an implied warranty that they are sound and wholesome. Vcm Braoklvn v. Fonda, 12 Johns. 468 ; Moses v. Mead, 1 Denio, 378 ; S. C, 5 id. 617 ; Divine v. MeGormiok, 50 Barb. 116 ; Hoover v. Peters, 18 Mich. 51 ; Ryder v. Neitge, 21 Minn. 30 ; Jones v. Murray, 3 T. B. Monr. (Ky.) 83. "Where property is sold "with all faults," or "just as it stands," or in any other language which indicates that the purchaser takes all risks, this will absolve the vendor from liability, in all cases of executed sales, provided there was no fraud on his part. BagleJiole v. Walters, 3 Camp. 154 ; Pickering v. Dowson,m.2kVca.t. 779. But, if the vendor does any act to conceal defects in the property, or says or does any thing to mislead the purchaser, so that he in any manner relies upon what is said or done by such vendor, or, where such vendor has been guilty of an active or affirmative concealment of defects, then such vendee may recover damages for the fraud practiced. lb. The rule of the English law according to the more recent decisions is, that " a sale of personal chattels implies an affirmation by the vendor that the chattel is his, and therefore he warrants the title, unless it be shown by the facts and circumstances of the sale that the vendor did not intend to assert ownership, biit only to transfer such interest as he might have in the chattel sold." Benj. on Sales [2d ed.], 523 ; Bagneley V. Hawley, L. E., 2 0. P. 625; Eichholz v. Bannister, 17 C. B. (IST. S.) 708. In this country the prevailing doctrine is, that the possession of per- sonal property implies title ; and in every case of the sale of personal property in possession, there is an implied warranty of title in the ven- dor. Atkins V. Eosley, 3 Sup. Ct. (T. & C.) 322 ; Morris v. Thomp- son, 85 111. 16 ; Burt v. Dewey, 40 N. Y. 283 ; McOiffin v. Baird, 62 id. 329 ; McCoy v. Artcher, 3 Barb. 323 ; ScraMon v. Cla/rk, 39 id. 273 ; Storm v. Smith, 43 Miss. 497 ; Gross v. Eiershi, 41 Cal. Ill ; Da/vis V. Smith, 7 Minn. 414 ; Williamson v. Sammons, 34 Ala. 691. And the term " possession," as here used, must be taken in its broadest sense and as including possession by a bailee of the vendor. Shattuck V. Green, 104 Mass. 42 ; Michel v. Ware, 3 Neb. 229. Where a sale is made of the exclusive right to manufacture- an article there is a war- SALE. 99 Warranty, ranty of title. Costigan v. Eawkms, 22 Wis. 74. And if, after a sale of personal property, the vendor acquire the full title, it will inure to the benefit of the vendee. Sherman v. Ghamplain Transp. Co., 31 Yt. 162. And the rule that a sale and delivery of personal property in the vendor's possession implies a warranty of the title, in the absence of an express agreement to the contrary, is held to apply, where build- ings on leasehold property which, by the conditions of the lease, may be removed by the lessee at the expiration of the term, are sold and traasferred as personalty. Dryden v. Kellogg, 2 Mo. App. 87. The excepted cases in which no warranty of title is implied must be substantially cases of sales of the mere naked interest of persons hav- ing no possession, actual or constructive. Whitney v. Heywood, 6 Gush. 82 ; Scott V. Hix, 2 Sneed (Tenn.), 192 ; Thurston v. Spyratt, 52 Me. 202. There is no implied warranty in a sheriff's sale. Yates v. Bond, 2 McL. (S. 0.) 382 ; Worthy v. Johnson, 8 Ga. 236 ; Stone v. Pointer, 5 Munf. (Va.) 287. And upon a sale of property, by virtue of a chat- tel mortgage, the proceeding is notice to the public that the mortgagee is selling, not his own title to the property, but that which he has ac- quired through the mortgage, and no warranty of title of the property so sold is to be implied against the mortgagee. Sheppard v. Earles, 18 Hun, 651. And a warranty of title to a chattel cannot be implied or proved, when there is a written bill of sale, which contains no warranty, for that would be to add to the writing by parol. SparJcs v. Messich, 65 N. 0. 440. Where the vendor sold a horse as executrix in her own wrong, and the administrators of the estate recovered the value of the horse from the vendee ; and before that trial the vendor was notified to come for- ward and defend the action, which was not done, it was held that such vendor was liable upon an implied warranty of title. Defreeze v. Trum- per, 1 Johns. 274. Where a sheriff levied upon a horse under an exe- cution, and conveyed him to the plaintiff therein, who directed him to return the horse to the defendant, which he did, and left him there in the defendant's possession, who sold the horse to E.., who sold him to B., who purchased honafide without notice of the levy, from whom the sheriff took the horse, and sold him at auction under the execution ; the first sale to R. was also lonafide, and without notice of the levy ; in an action by B. against R. upon a breach of the implied warranty of title, it was held that B. was entitled to recover. Eew v. Barber, 3 Cow. 272. Under the rule of law that in every sale of personal property there is an implied warranty by the vendor of title in himself, and that he has a right to sell, the warranty extends also to a prior lien or incum- 100 SALE. Warrantv. brance. Dresser y. Amsworth, 9 Barb. 619. The essence of the con- tract of warranty in such cases is, that the vendor has a perfect title to the goods sold ; that the same are unincumbered, and that the pur- chaser will acquire, by the purchase, a title free and clear, and shall enjoy the possession without disturbance by means of any thing done or suf- fered by the vendor. lb. It is, therefore, immaterial whether the pur- chaser, at the time of his purchase, knew of a previous levy upon the goods by the sheriff. He has a right to rely upon the implied war- ranty ; and if he is evicted by a sale of the goods under a previous exe- cution, he has a right of action against the vendor. lb. One who transfers a chose in action impliedly warrants, at the least, that there is no legal defense to its collection arising out of his own connection with its origin. Dela/wa/re Bank v. Jarvis, 20 N. Y. 226. The party accepting the transfer is at liberty to act upon the impKed assertion of the validity of the paper, and to bring an action for its col- lection. When defeated, he is entitled to recover from the assignor the costs incurred in such action. lb. The holder of a note, which had a usurious inception in his hands, transferred it without indorsement and without notice of the facts to the plaintiff, and the latter brought an action upon the note, to which the defense of usury was successfully interposed. The defendant had notice of the plea, and was called upon to assume the conduct of the action, but he declined to do so, though deny- ing that there was any legal defense ; it was held that the plaintiff was entitled to recover the amount of the note, with interest, besides the costs of the action in the suit in which the defense of usury was inter- posed, lb.; Fake v. Smith, 7 Abb. (N. S.) 106. And see Boss v. Terry, 63 N. T. 613. The warranty implied on the sale of a note tainted with usury ex- tends only to the title and genuineness of the paper, where the vendor transfers it without indorsement and without knowledge of the defect. In order to establish an implied warranty as to the validity of the note, it must be shown that the vendor transferred the note with knowledge of the usury. Littauer v. Goldman, 72 N. Y. 506. In the cases in which the vendor has been held to wan-ant the validity of usurious paper, it will be found that the vendor had knowledge of the usury acquired at the time the paper was made, or before its transfer. In the most of them the vendor was a party to the illegal transaction. In a general sale of personal property, where there is no express warranty, and the article is not to be manufactured or raised by the vendor, nor is the contract an executory one to furnish a particular ar- ticle, the general rule is, that there is no implied warranty of the kind SALE. 101 Warranty. or quality of the article sold. Ante, 88. And see Qarley v. WilTcins, 6 Barb. 558; Biefendorff ^. Gage, Y id. 18. Where goods are sold in close packages, and there is a mutual mis- take as to the quantity, the vendee is entitled to recover from the ven- dor for any deficiency, at the rate at which they were purchased. But he cannot recover remote damages resulting from the quantity being so deficient. Hargous v. Ablon, 3 Denio, 406. Therefore, where cloth was purchased in New York, for the Mexican market, the vendor knowing their destination, and the vendee shipped them to a Mexican port where they were entered at the custom-house, according to the invoice by which they were purchased, which by a mutual mistake represented the number of yards to be considerably greater than the actual quantity, and the vendee was by this means obliged to pay du- ties and commissions on the quantity deficient, it was held that the vendee could not recover this excess from the vendor. lb. ; S. C, 5 Hill, 472. Where the vendee sends an order for a particular quantity of goods, he will not be bound to accept those sent, if they differ in number or quantity from that specified in the order. Corning v. Colt, 5 Wend. 253 ; Bruce v. Pearson, 8 Johns. 534 ; Downer v. Thompson, 2 Hill, 137 ; S. C, 6 id. 208. When there is an express contract as to the quantity which is sold, the vendor has no right to send any more or any less than the terms of the contract authorize. And where there is no express contract, but the vendee sends an order for a particular quantity of goods which is specified in the order, the vendor is bound to send the quantity specified, and if he sends more {Downer v. Thomp- son, 6 Hill, 208); or less {Bruce v. Pearson, 3 Johns. 534), the vendee will not be bound to accept them ; and if the goods are lost before they are accepted by the vendee, the loss will not fall on the vendor. lb. The vendee may accept the quantity sent, and if he does so, he will be liable to pay for them. Corning v. Colt, 5 Wend. 253. Want of title in the vendor of personal property is no defense to an action brought for the recovery of the purchase-money, where there has been no recovery by the real owner against the purchaser, unless he has either returned the property to the vendor, has had his possession interfered with, or has paid the real owner for the property. McGiffin V. Baird, 62 N. T. 329 ; Case v. Hall, 24 Wend. 102. And see Dela- ware Bank v. Jarvis, 20 In . T. 230. The effect of the implied war- ranty of title on the sale of personal property is to guaranty the pur- chaser against eviction or injury from other parties. If the prop- erty is taken from the purchaser by title paramount, or if the pur- 102 SALE. Warranty. chaser is compelled to pay the true owner the value of the prop- erty, in either case it is a defense to an action for the purchase-price. So if the vendee returns the property on discovery of the defect of title, he may have an action upon the implied warranty, and of course a defense to an action for the purchase-price, in which he will have the burden of proving title in the third person ; and upon the same prin- ciple, if for any reason it is impracticable or even undesirable to return the property, perhaps the vendee may pay the claimant its value with- out legal proceedings, and avail himself of it as a defense upon assum- ing the burden of establishing the validity of the claim. McGiffin v. Bai/rd, 62 N. T. 329. This is the extreme extent of the rule of pro- tection recognized in any adjudged ease. lb. Where there has been a breach of an implied warranty of title to a chattel, the vendee is not bound to await legal action against him. If he is satisfied of the in- sufficiency of his vendor's title, and that the true owner would recover the property in an action, he may surrender it, and recover its value in an action against his vendor, by affirmatively establishing that the ven- dor was without title ; or he may await the prosecution of an action. Burt V. Dewey, 40 N. Y. 283 ; Sweetman v. Prince, 26 id. 224. Where a suit is brought by the true owner against the vendee of per- sonal property, and the vendor has notice of the action and is requested to defend it, which he neglects or refuses to do, a recovery by such owner against the vendee will be a conclusive bar to a right of action by the vendor to recover the purchase-price ; or it will be conclusive evidence in favor of the vendee to recover back the purchase-money from the vendor. Barney v. Dewey, 13 Johns. 224; Blasdale v. Babcock, 1 id. 517 ; Burt v. Dewey, 40 JST. Y. 283 ; Sweetman v. Prince, 26 id. 224. And see Bordewell v. Colie, 1 Lans. 141 ; S. C. affirmed, 45 N. Y. 494 ; Dryden v. Kellogg, 2 Mo. 87. A vendor of personal property, who has notice of a suit against his vendee in respect to the property sold, is as much bound to indemnify his vendee as if he had entered into an express covenant for that pur- pose. Brewster v. Countryman, 12 Wend. 446. A purchaser who defends a suit in a justice's court against a claim made upon the prop- erty sold to him is not bound to carry up the cause by appeal, if the judgment passes against him. lb. Where the vendor is a witness in a suit between a third person and the vendee, in relation to the title to the property, that is sufficient notice to such vendor to defend the action. Brewster v. Countryman, 12 Wend. 446 ; Barney v. Dewey, 13 Johns. 224; Blasdale v. Bahcooh, 1 id. 517. Where the services of a negro (whose, services it was supposed might SALE. 103 Warranty. be disposed of) were sold for a term of five years, and he left the em- ployment of his master, asserting his freedom, and it appeared that he was in fact free at the time of the sale, it was held, in an action by the vendor against the vendee to recover the sum agreed to be paid for his services, that the consideration of the promise was illegal ; and in anal- ogy to the rule of law applicable to the sale of chattels, that the asser- tion of freedom in this case was equivalent to the legal eviction of a vendee, on the claim of the true owner. Lwingston v. Bain, 10 "Wend. 384. A purchaser with knowledge that the goods are claimed by a third person, who voluntarily pays the price of the goods to such third per- son, cannot afterward, in a suit brought by the vendor against him for the price, set up as a defense the want of title in the vendor, and that he has paid the price to the true owner. YiUbard v. Johnson, 19 Johns. 77. Where goods were sold by an auctioneer, without any warranty or misrepresentation, and the same turned out to be spurious, and the labels upon them counterfeit, it was held that it was no defense to an action upon a note given by the purchasers for the purchase-price, there being no proof that the auctioneer knew the fact of the spurious nature of the goods, or that he had any better means of judging their genuine- ness than the buyer possessed. Rudderow v. Huntington, 3 Sandf . 252. The statute of 1845, making it a penal offense to vend merchan- dise having forged or counterfeited trade-marks, knowing them to be such, etc., without disclosing the fact to the purchaser, would prevent the vendor from recovering the price of the goods sold, if he was aware of their spuriousness. lb. But it must appear that the vendor knew the marks to be forged or counterfeited, or that there was a war- ranty of the genuineness of the goods, or some misrepresentation on his part, to prevent a recovery. lb. The original fraud in the counter- feiting of trade-marks does not attach itself to the goods in the hands of an owner ignorant of the offense, and fasten upon him the penalties of a wrong of which he is innocent. lb. Where a horse is sold by a written bill of sale, containing a warranty as to soundness, the written merges all cotemporaneous parol agreements, such as an agreement that the seller will take back the horse and refund the money within a speci- fied time, and the purchaser is limited, in his recovery for any defects warranted, to such damages as arise from a breach of the written war- ranty. Fales V. MoKeon, 2 Hilt. 53. "Where a party on the sale of an article makes representations amounting to a warranty, and the sale ifi consummated by a written transfer without a clause of warranty in- 104 SALE. Stoppage in transitu. serted, the vendee, in an action for a breach of such alleged warranty, will not be permitted to show the representations and assertions which were made previous to the execution of the instrument of transfer, the presumption of law being that the written contains the whole contract. Van Ostrand v. Jieed, 1 "Wend. 424 ; Waters Patent Heater Co. v. Tompkins, 14 Hun, 219. 8o, where the contract is required to be in writing, by the statute of frauds, any warranty which is relied upon must be stated in the memo- randum, and parol evidence of a warranty not contained in the writing is not admissible. Peltier v. OoIUtis, 3 Wend. 459 ; Mumford v. Mc- Pherson, 1 Johns. 414 ; Wilson v. Marsh, id. 503. But where, upon the sale and purchase of a horse, a bill of sale was executed by the vendor, specifying the price and acknowledging its receipt, it was held that the instrument was to be construed as a mere receipt for the pur- chase-money, and not as a contract whose written terms could not be varied by parol ; and that parol evidence of a verbal warranty was, therefore, admissible. Filkvns v. WJiylam.d, 24 Barb. 3T9 ; S. C, 24 N. Y. 338. And where a written warranty of property was given, it was held that parol evidence was admissible to show that the vendor informed the vendee of certain visible defects, and pointed them out to him at the time of the sale. Schuyler v. Buss, 2 Oaines, 202. So, if a sale of merchandise of more than $50 in value is made orally on credit with a warranty, the quantity not then being as- certained, the fact that the vendor afterward forwards to the purchaser a bill of sale, which is silent as to the warranty, will not render that part of the contract inoperative. See Foot v. Bentley, 4A N. Y. 166 ; S. C, 4 Am. Eep. 652. And generally, where a contract is first con- cluded by parol, and a paper is afterward drawn up, not as containing the terms of the contract, but as a mere memorandum or bill of parcels, parol evidence is admissible to show the actual terms of the sale, and that there was a warranty, though it does not appear in the memoran- dum or receipt. Gassidy v. Begoden, 6 Jones & Sp. 180 ; Koop v. Handy, 41 Barb. 454. § 15. Stoppage in transitu. "When a vendor has sold goods on credit, and he learns that the vendee is insolvent, such vendor may stop such goods in their transit, and resume their possession at any time while they are in the hands of a carrier or middleman, and before they reach the possession of the vendee. The origin of this right, and the principles upon which it is founded, seem to this day to be undetermined, although the right itself has been recognized for nearly two hundred years. In courts of equity the SALE. 105 stoppage in transitu. right has been supposed to be based upon some principle of common law, while in courts of law it has been called a principle of equity which the common law has adopted. In some cases the theory has been advanced that the exercise of the right is to be regarded as the rescission of the sale ; and in others that it is simply an assertion of the right to enforce a Hen for the purchase-price. Which tlieory will be ultimately adopted in this State is iincertain, but the prevailing current of American decisions favors the theory of a lien. See Bdbcoch v. Son- neU, 80 N. Y. 244; Rowley v. Bigelow, 12 Pick. 307; Stanton v. Mger, 16 id. 467-475 ; Arnold v. Delano, 4 Cush. 33, 39 ; JVew- hall V. Vargas, 13 Me. 93 ; S. C, 15 id. 314 ; Rogers v. Thomas, 20 Conn. 53; Mlis v. James, 5 Ohio, 88-98 ; Harris v. Pratt, 17 N. T. 263. The question is not one of mere speculative interest, as the rights and obligations of the parties under the different theories would be es- sentially dissimilar. If the stoppage in transitu is in effect a rescission of the contract, the parties are thereby restored to their original rights and may treat the contract as if it had never existed. See ante, (!2. If, on the contrary, the right is deemed a mere assertion of the vendor's lien, the vendor must hold the property reclaimed until the expiration of the credit, and be able to deliver it on payment of the price, the purchaser having the right to pay the price at the time stipulated, and take the property, and the vendor having the right, on default of pay- ment at the time stipulated, to sell the property on notice to the ven- dee. See Babcook v. Bonnell, 80 N. Y. 244. And it has been held in this State that when the seller retakes the property in the exercise of the right of stoppage, he is not reinvested with the title, but simply placed in the actual possession of the goods, holding them as security for the purchase-price, under a kind of equitable lien adopted by the law for the purpose of substantial justice. Gross v. G' Donnell, 44 N. Y. 661 ; S. C, 4 Am. Eep. 721. This right exists between vendor and vendee only, or between parties who stand substantially in that relation. And, therefore, a mere surety of the vendee, where he is not primarily liable for the purchase-price, cannot stop the goods in transitu to secure himself, although the vendee is insolvent. Siffken v. Wray, 6 East, 371. The right is not, however, confined strictly to the seller. Muller V. Pondlr, 55 K Y. 325 ; S. C, 14 Am. Eep. 259. The right may be exercised by one who pays the price of goods for the vendee and takes from him an assignment of the bill of lading as security for his advances. Oossler v. Sohepler, 5 Daly, 476. And the right has been sustained in behalf of a mere factor or purchasing agent, not only as to his advances but also as to his commissions. Feise v. Wray, 3 East, 93 ; Newhall v. Vargas, 13 Me. 103. 14 106 SALE. Stoppage in transitu. Where the right of stoppage in transitu is exercised in behalf of the vendor, by one who has at no time had any authority to act for him, a subsequent ratification of the vendor w^ill be too late if made after the transit is ended {Bird v. Brown, 4 Exch. 786); though it would be otherwise if made before the transit is ended, or before the delivery to the vendee. Whitehead v. Anderson, 9 Mees. & Wels. 518; Durgy Cement amd Umber Co. v. O'Brien, 123 Mass. 12. The right to stop in transitu can only be exercised against an insol- vent or bankrupt buyer, or quasi buyer. But the privilege, unless waived by the vendor, ought properly to extend to cases of insolvency, whether existing at the time of sale or occurring at any time before the actual delivery of the goods. Benedict v. Schaettler, 12 Ohio St. 515 ; Reynolds v. Boston, etc., R. R. Co., 43 IST. H. 580 ; O'Brien v. Norris, 16 Md. 122 ; Blum v. Maries, 21 La. Ann. 268. But it was held in Connecticut that the buyer's failure must, in point of fact, have been later than the sale. Rogers v. Thomas, 20 Conn. 54. By the word " insolvency " is meant a general inability to pay one's debts. Parker v. Gossage, 2 Cr. M. & E. 617 ; Durgy Co. v. O'Brien, 123 Mass. 12. And if this fact exist, no matter how proved, if sufficiently and satisfactorily proved, the law requires no more. lb.; The Queen V. Sadlers' Co., 10 H. L. Cas. 404 ; Hays v. Mouille, 14 Penn. St. 48. One of the chief difficulties which arises in practice is to determine when the right to stop the goods ceases. If they have reached the actual possession of the vendee before the right is exercised, it will then be too late for the vendor to reclaim them. If a vendor delivers to his vendee a bill of parcels for goods lying in a public warehouse, together with an order for their delivery, and the vendee goes to the warehouse, produces the order, has the goods marked with his initials, pays the storage upon them, and then returns them into the warehouse, the vendor's right of stoppage in transitu is gone. Hollingsworth v. Napier, 3 Gaines, 182. The vendor's right of stoppage in t/ransitu does not cease on the arrival of the goods at the port of delivery, until they have come to the vendee's actual possession, or his constructive possession by a deliv- ery to his agent. Mottram v, Heyer, 5 Denio, 629 ; S. C, 1 id. 483. A vendor's right is not terminated by the goods coming to the hands of a shipping agent appointed by the vendee, though they are deliv- ered to him to await further directions, in respect to the time and mode of shipment to the vendee, at an ultimate destination previously fixed, and not to be affected by such subsequent directions. The tran- sit continues until the goods come to the possession of the vendee or SALE. 107 Stoppage in transitu. of some agent authorized to act in respect to the disposition of them otherwise than by forwarding them to the vendee. Harris v. Pratt, (J Duer, 606 ; S. C, 17 K". Y. 249. And the right is only extinguished by the actual and complete delivery of the goods consigned to the ven- dee or to some agent of the vendee for him. Mohr v. Boston, etc., E. R. Qo., 106 Mass. 67 ; Aguirre v. Farmelee, 22 Conn. 473 ; Cala- han V. Babcook, 21 Ohio St. 281 ; S. C, 8 Am. Eep. 63. The deliv- ery of the goods by the vendor to a carrier, by the order of the agent of the vendee, for the purpose of being forwarded, is not such a con- structive delivery to the vendee as to put an end to the right. lb. And after the arrival of the goods at the place of destination, and while in the hands of the carrier or wharfinger or warehouseman, for the mere purpose of delivery to the vendee, the vendor may resume the possession. James v. Griffin, 2 M. & W. 633 ; Berndtson v. Stran-g, L. K., 4 Eq. 481 ; Ex parte Watson., L. K., 5 Ch. Div. 35 ; S. C, 21 Eng. Eep. 764. So, goods in public store awaiting the comple- tion of their entry at the custom-house by the payment of the duties, are to be deemed still in transitu. Western Transp. Co. v. Hawley, 1 Daly, 327; Donath v. Broomhead, 7 Penn. St. 301. But it is held that the right ceases when the goods are bonded and deposited in a warehouse in the joint custody of the purchaser or consignee and the customhouse authorities, under the present warehouse system. Fras- chieris v. Henriques, 6 Abb. (jST. S.) 251. And see Parker v. Byrnes, 1 Low. Dec. 639 ; Lewis v. Mason, 36 Up. Can. (Q. B.) 590. But see Wilds v. Smith, 41 id. 136. An assignee in trust for creditors of the insolvent vendee is not a purchaser for value, and he takes the goods subject to any right of stoppage in transitu which may exist against his assignor. Harris v. Pratt, 17 K Y. 249; S. G.,\ ; Bailey v. Smith, 14 Ohio St. 396 ; Campbell v. Nichols, 33 JST. J. L. 81 ; Lawrence v. Griffen, 80 Tex. 400 ; Overton v. Hardin, 6 Coldw. (Tenn.) 375 ; Whitten v. Hayden, 7 Allen, 407. The question whether a promissory note, sold by the payee at a dis- count greater than lawful interest, had, in view of the usury law, an inception prior to the sale, depends upon the question whether it was a perfect and available instrument in the hands of the payee, so that he could maintain an action thereon. If it was executed without a con. sideration, or if not assented to and delivered as evidence of a contract, it has no inception until the sale, and the transaction is usurious. Eastman v. Shaw^ 65 N". T. 622. For example, if a person is induced, by means of fraudulent representations made to him, to agree to take an interest in a company which he is led to believe is about being formed to purchase an interest in a valuable patent right, and is in- duced to execute and place in the hands of the payee his promissory note for the amount he is to contribute as a member, merely to show to others that he was willing to take a share, such note has no incep- 174 USUET. Usury. tion in the hands of the payee, and if sold by him at a discount greater than lawful interest, will be held usurious and void. lb. Bills of exchange are governed by the same principle, and, if the in- dorsee of a bill, or of a promissory note, deducts more than a legal rate of interest for the time which it has to run, such bill or note will be void. And this is the rule although such indorsee or purchaser did not know that the bill or note had no legal inception before he purchased or dis- counted it. Clarlc v. Sisson, 4 Duer, 408. Though the statute, in general terms, declares void all contracts and securities affected with usury, yet several exceptions have been allowed to its provisions in favor of innocent third parties. Dix v. Van Wyck, 2 Hill, 522. Where a debt or note is originally free from usury, and valid, and a subsequent note or security is given, which includes a usu- rious premium for forbearance, the latter note or security is void, and cannot be enforced ; but the original debt or note is not affected by the usury, and the amount may be recovered by action. Jiice v. Welling, 5 Wend. 595 ; Swartwout v. Paytie, 19 Johns. 294 ; Hammond v. Mop- fing, 13 Wend. 505 ; Oray v. Fowler, 1 H. Bl. 462 ; Carson v. Ingalls, 33 Barb. 657 ; Eeal Estate Trust Co. v. Eeech, 7 Hun, 253 ; S. C, 69 N. Y. 248 ; 25 Am. Eep. 181 ; Abrahams v. Claussen, 52 How. 241 ; ^ Zangdon v. Gray, id. 387 ; Terhune v. Taylor, 27 N. J. Eq. 80. Obligations and securities having an independent existence and un- tainted by usury are not affected by the statute, although they are the subject of contracts tainted with usury. Patterson v. Birdsall, 64 N. Y. 294 ; S. 6., 21 Am. Eep. 609. A valid and subsisting debt is not destroyed because included in a security or made the subject of a contract void or invalid, either because in violation of the statutes against usury or for any other reason. Al- though formally satisfied and discharged, and the security surrendered, it may be revived and enforced in case the new security is invalidated and avoided. Patterson v. Birdsall, 64 N. Y. 294 ; Gerwig v. Bitterly, 56 id. 214 ; Winsted Bank v. Well, 39 id. 325. Farmers am,d Me- chanic^ Bank v. Joslyn, 37 id. 353. But, unless the usurious contract is mutually abandoned, no action will lie upon the original considera- tion ; for although the second note is void, and no action can be main- tained on it, yet there is no implied promise to pay the original debt while an express promise exists. If, however, the second contract is mutually abandoned, and the securities are canceled or destroyed, so that they can never be made the foundation of a subsequent action, and the borrower subsequently promises topay the amount actually received by him, such promise is legal and binding ; but as long as the usurious USURY. 175 Usury. contract remains in force, unrescinded by the parties, a promise to repay the sum actually borrowed cannot be enforced. Hammond v. Hopping, 13 VVeud. 505 ; Bice v. Welling, 5 id. 595. And see Early v. Mahon, 19 Johns. 147. The usurer is not permitted at his own election to allege his illegal act as a ground for reinstating an old security. Farmers and Mechanics' Bank v. Joslyn, 37 N. Y. 353. He cannot bring an action upon the usurious note, and when the defense of usury is raised, recover upon the original valid debt without setting up an original debt in his pleadings and claiming to recover thereon. Hansee v. Phinney, 20 Hun, 153. But see Tifft v. Moor, 59 Barb. 619. So, on the other hand, the party who claims to be the victim of exaction cannot avail himself of the invalidity of a later contract as a shield from liability on one of earlier date, which was honest and free from vice. Farmers and Mechanics' Bank v. Joslyn, 37 'E. Y. 353. If the usurer brings his action upon the original valid contract, and the defendant claims that the original debt has become void by reason of a usurious extension of time of payment, the defense will be unavailing as an entire defense, but the defendant may be allowed in equity the sum paid for forbearance as a payment upon the original debt. Beal Estate Trust Oo. v. Keech, 69 JST. Y. 248 ; S. C, 25 Am. E,ep. 181. If the usurer brings an action against the indorsers of a promissory note, and they defend upon the ground that they have been discharged by an extension of time of payment given to the maker without their consent, the usurer cannot avoid the defense by showing that the extension was invalid because its consideration w^as a usurious bonus exacted from the maker. National Bank of Gloversville v. Place, 15 Hun, 561. The same rule applies where the defendants are the sureties on the note. Billington v. Wagner, 33 N. Y. 31. So if the maker, in an action upon a promissory note, alleges, as a defense, that the note in suit has been included in a new note given to the plaintiff, which is still outstanding, the plaintiff cannot allege that the renewal note was usurious and therefore no bar to the action. Hansee V. Phinney, 20 Hun, 153. In all the cases the doctrine is recognized and affirmed that the usurer shall not be permitted to set up his own usury to his advantage ; and that it is the victim and not the usurer who can claim protection under the statute. But the victim of the usury can use the statute only as a means of defense. He cannot use it both as a shield and a sword. Thus, if after the principal of a bond and mortgage has become due, a usurious agreement is made between the parties for an extension of time, and notwithstanding the agree- ment, the holder of the mortgage commences an action for foreclosure 176 USUEY. Usury. after default in the payment of interest accruing after the extension, claiming the whole amount secured to be due, under a clause in the in- strument declaring that upon default in payment of interest the whole principal shall become due at the option of the holder tlie mortgagor cannot claim the benefit of the extension, and at the same time seek to defeat the forclosure by asking that the usurious considera- tion paid therefor shall be applied in payment of the interest. Church V. Malay, 70 N. T. 63. The usurious agreement is void and there is no valid extension ; but assuming that it is binding at the election of the mortgagor, he disaffirms it by requiring that the consideration paid shall be credited. He is entitled to the credit, but having received it, is not entitled to the extension, and the plaintiff may have judgment for the residue unpaid. lb. In some of the cases a distinction is made between a usurious con- sideration actually paid to obtain an extension of time of payment, and a usurious consideration agreed to be paid. Thus it has been held that a mere agreement made by a creditor with the principal debtor, to for- bear the payment of the debt in consideration of a usurious premium to be paid for such forbearance, is void, and, therefore, it cannot operate to discharge the sureties. But, where the usurious premium is actually paid at the time, the sureties will be discharged. 2 Am. Lead. Cas. 420, 421, 4th ed. ; Vilas v. Jones, 10 Paige, 76 ; S. C, 1 N. Y. 274; Fer- nan v. Double-day, 3 Lans. 216. But, in this State, the courts have held that there is no distinction in principle whether the usurious premium is actually paid, or merely agreed to be paid ; and that in either case the sureties are discharged. Draper v. Trescott, 29 Barb. 401 ; La Farge v. Ilerter, '9 N. Y. 241. The principle of these latter decisions is, that the usurer was guilty of an tmlawf ul act in taking the usurious premium, and that he cannot, therefore, be heard to urge his own unlawful acts as against the surety. No man is allowed to take any advantage which results from his own unlawful acts. "When the original loan is usurious, all the securities therefor, however remote, or however frequently renewed, are void. Beed V. Smith, 9 Cow. 647; Steele -^.Whipple, 21 Wend. 103; Jack- son V. Packard, 6 id. 415 ; Tuthill v. Davis, 20 Johns. 2S5 ; Jacks v. Nichols, 5 N. Y. 178 ; Clark v. Sisson, 4 Duer, 408 ; National Bank v. Lewis, 75 N. Y. 516 ; Price v. Lyons Bank, 33 id. 55 ; Cope v. Wheeler, 41 id. 303. And see Miller v. Irwin, 85 Penn. St. 376 ; Stanton v. Demerritt, 122 Mass. 495 ; Sugart v. Mays, 54 Ga. 554 ; Campbell v. McHarg, 9 Iowa, 354. The rule is the same, whether the new security is given by the bor- USUKY. 177 Usury. rower, or by a third person for liis benefit. VicTcery v. Dickson, 35 Barb. 96 ; Garth v. Cooper, 12 Iowa, 364. So, all collateral securities wbich are given to secure the payment of a usurious debt are equally void with the original obligations or debt. Bell V. Lent, 24 Wend. 230 ; Harrison v. Rannel, 5 Taunt. 780 ; S. C, 1 Marsh. 349. But where notes and stock are deposited as a collateral security for the payment of promissory notes given on obtaining a loan of money, tipon an agreement that the avails of the collaterals are to be applied to the payment of the loan when the notes given therefor become due, if the collaterals are paid before the notes become due, and the lender uses the money, such use of the money will not amount to usury in the notes, unless it was a part of the agreement made at the time of giving the same, that the lender should have the use of the money without interest. Morgan v. Mechanics'' Banking Association, 19 Barb. 584. The parties to a usurious agreement may reform it by canceling the original security and making a new obligation for the amount due after deducting the usury, but they cannot, by any transaction between them, render valid such original usurious security. And where the holder of a usurious mortgage indorsed thereon an amount equal to the sum in- cluded in it for usury, it was held that the mortgage was nevertheless void, although such indorsement was made with the assent of the mort- gagor. Miller v. JIull, 4 Denio, 104. If a party exacts usury at the time of making the loan, and takes security for the loan in the form of a mortgage, the subsequent repay- ment of the sum retained in excess of lawful interest will not render the mortgage vaM. Van Tassell v. Wood, 12 Hun, 388. But if the person making the loan exacts and receives more than lawful interest for the use of the money, but before the mortgage given as security is acknowledged, the usurious interest is repaid, the mortgage given to secure the loan will be valid. Brackett v. Barney, 28 N. Y. 333. A reservation in a new security of compound interest which had accrued upon a sum previously due, made against the will of the debtor, as a condition of forbearance upon the new security, affects the new security with usury and renders it void. Townsend v. Corning, 1 Barb. 627. See ante, 148, Interest. The statute authorizes the borrower to set up the defense of usury. 3 R. S. 73, § 8, 5th ed.; Schermerhorn v. Am. Life, etc., Lns. Co., 14 Barb. 131. But there are frequently questions as to what constitutes a borrower within the meaning of the statute. And it is a matter of some importance to know who may, and who may not avail himself of this defense. The 23 178 USUEY. Usury. defense of usury can be set up only by the party bound by the origi- nal agreement to pay the sum borrowed, or by the sureties, heirs, de- visees or personal representatives of such party. BilUngton v. Wag- OTier, 33 N. Y. 31. The defense is personal to the borrower, who complains of the injury, or those standing as his legal representatives. Ohio <& Mississippi R. R. Go. v. Kasson, 37 K. Y. 218 ; S. C, 4 Trans. App. 184 ; Pritchett v. Mitchell, 17 Kans. 355 ; S. C, 22 Am. Kep. 287 ; Taylor v. Jaokson, 5 Daly, 497. And it has been settled by repeated adjudications that a mere stranger to a usurious contract cannot avail himself of the usury. Kay v. Whittaker, 44 N. Y. 565 ; Murray v. Judson, 9 id. 73 ; Dix v. Van, Wych, 2 Hill, 522. One not a party to a usurious agreement, or claiming under a party injuriously affected by it, cannot assail the agreement on the ground of usury. Williams v. Tilt, 36 N. Y. 319. An accommodation indorser may interpose the defense of usury, in relation to the transactions between the principal parties to the paper ; for such an indorser is embraced in the term " borrower," as used in the statute. Hungerford' s Bank v. Dodge, 30 Barb. 626 ; Cassebeer V. Kalhfleisch, 11 Hun, 119. So, the grantor of a note may set up the defense of usury in the same cases in which an indorser may do so. Marshall v. La/moreaux. 37 Barb. 189 ; Huntress v. Patten, 20 Me. 28. A surety of the principal who borrows the money is within the statute, and he may set up the defense of usury, whenever that de- fense is available to the principal, Austin v. Fuller, 12 Barb. 360 Cole V. Samage, 10 Paige, 583 ; Stockton v. Coleman, 39 Ind. 106 Bulloch V. Boyd, Hoff. Ch. 294 ; Morse v. Eovey, 9 Paige, 197 whether the principal desires to set up the defense or not. lb. So, an assignee in trust for the benefit of creditors may interpose this defense. Pearsall v. Kinsgland, 3 Edw. Ch. 195 ; Wells v. Chap- man, 13 Barb. 561, 563. So, a receiver of an insolvent corporation may repudiate the illegal transfer of its securities by its oflBcers, and claim them as a part of its fund. Talmage v. Pell, 7 N. Y. 328. So of the receiver of an individual. A purchaser of land which is incumbered by a usurious mortgage may set up usury in defense to a bill of foreclosure, unless, by the terms of purchase, he took the equity of redemption merely, subject to the payment of the mortgage. Brooks v. Avery, 4 N. Y. 226. And a purchaser at a foreclosure sale under a valid mortgage is in privity of estate with the mortgagor and may insist on the invalidity of a prior mortgage for usury, both mortgages being made by the same party. More v. Deyoe, 22 Hun, 208. USURY. 179 Usury. But a mortgagee of real estate which is subject to the lieu of a prior judgment, which was confessed by the mortgagor upon a usurious con- sideration, is not a borrower within the meaning of the statutes relat- ing to usury, and therefore he cannot maintain a bill to set aside the judgment, without paying or offering to pay the sum actually due. Hereford v. Widger, 2 N. Y. 131 ; S. C, 3 Barb. Ch. 640 ; Shufelt v. Shufelt, 9 Paige, 138. One who does not claim through or under the borrower does not stand in privity with the borrower. Ohio & Mississippi R. JR. Go. v. Kasson, 37 !N". Y. 218. And if a grantee or assignee takes his assign- ment or grant from the. borrower subject to alien on the property taint- ed with usury, then, as to so much of the property as is necessary to satisfy such lien, he is not in privity in estate with the borrower, for so much of the property is not assigned or granted to him. Merchants'' Mechange Barik v. Comrnercial Warehouse Co., 49 N. Y. 642 ; Bullard V. Ray nor, 30 id. 206 ; De Wolfy. Johnson, 10 Wheat. 369 ; Knicker- bocker Life Ins. Co. v. Nelson, 78 N. Y. 137, 150. The purchaser of a mere equity of redemption, in premises covered by a usurious mort- gage, who buys subject to the lien of such mortgage, cannot set up usury as a defense to the incumbrance. Oreen v. Kemp, 13 Mass. 515 ; Huston Y. Stringham, 21 Iowa, 36 ; Conover v. Hobert, 24 N. J. Eq. 1 20. This rule must now be deemed firmly established. It stands upon the fact that such a purchaser acquires only the right to redeem and upon the principle that if he will not avail himself of this right he cannot hold the land, and having no title in the land cannot be permitted to avoid the mortgage by plea or proof of usury. Shufelt v. Shufelt, 9 Paige, 145; Post y. Dart, 8 id. 639; Morris y. Floyd, 5 Barb. 130; Samds v. Church, 6 N. Y. 347 ; KnicTcerlooTcer Life Ins. Co. v. Nelson, 78 id. 137, 150. Nor is the defense of usury available to one who has purchased the land assuming the usurious mortgage. Hartley v. Har- rison, 24 N. Y. 170 ; Crainer v. Lepper, 26 Ohio St. 59 ; S. C, 20 Am. Rep. 756. And see StudahacTcer v. Marquardt, 55 Ind. 341 ; Hough Y. Horsey 36 Md. 181 ; S. 0., 11 Am. Rep. 484; ReedY. Eastman, 50 Yt. 67. A subsequent grantee of premises covered by a usurious mortgage is not a " borrower," and therefore he cannot maintain a suit in equity to set aside the mortgage without paying or offering to pay the sum loaned. Post v. President, etc., of Bank of UUca, 7 Hill, 391. But ■whether the equitable owner of land, upon which a usurious mort- gage has been given, is a " borrower," within the meaning of the stat- ute relating to usury, and is therefore entitled to interpose the defense 180 USUEY. Usury. of usuiy, is not clear. Equitable Life Ins. Society v. Cuyler, 12 Hun, 247; S. 0. affirmed, 75 N. Y. 511. The purchaser at a foreclosure sale under a mechanics' lien which attached subsequently to the record of a mortgage of the same estate, may set up as a defense in a suit for the foreclosure of a mortgage, usury in the transaction on which the mort- gage is founded. Knickerbocker Life Ins. Go. \. Hill, 16 Abb. (N. S.) 321 ; S. C, 6 Sup. Ct. (T. & G.) 255 ; 3 Him, 577. Cases have been cited in the preceding pages, covering questions of law which could not arise in justice's court, for the purpose of show- ing the construction which tlie courts have placed upon the term "borrower," as used in the statute defining usury and what persons are entitled to interpose the defense. The decisions are not harmonious ; but the rule as at present settled is, that all privies to the borrower, whether in blood, representation or estate, may both in law and equity, by the appropriate legal and equitable remedies and defenses, attack or defend against a contract or security given by the borrower which is tainted with usury, on the ground of such usury, where such contract or security affects the estate derived by them from the borrower. Mer- chant's Exchange Nafl Bamk v. Commercial Wa/rehouse Co., 49 N. Y. 635, 643 ; Knickerbocker Life Ins. Co. v. Nelson, 78 id. 137, 150 ; More V. Deyoe, 22 Plun, 208, 218 ; McGuire v. Van Pelt, 55 Ala. 344 ; Lehman v. Marshall, 47 id. 362 ; Stein v. Indianapolis, etc., Associa- tion, 18 Ind. 237. The right of a borrower to recover the excessive interest upon a usiirious loan is assignable, and vests in the assignee in bankruptcy of the borrower upon the execution of the assignment. Wheelock v. Lee, 64 N. Y. 242. A cause of action to cancel or otherwise affect an in- strument executed or act done, as security for a iisurious loan or for- bearance, may be transferred, when the instrument or act creates a specific charge upon property, which is also transferred in disaffirmance thereof, and not otherwise ; but in that case the transferee does not suc- ceed to the right conferred by statute upon the borrower to procure relief, without paying or offering to pay any part of the sum or thing loaned. Code Civil Proc, § 1911. Corporations are precluded by statute from interposing the defense of usury. The kinds of corporations are there specified. But it is not merely the corporation itself which is precluded from making such a defense. And, therefore, a receiver of a corporation is precluded from interposing the defense of usury, and he cannot claim the ad- vantage of that defense in any stage of the cause, not even at the final hearing, although such defense was alleged in pleading, and was USURY. 181 Usury. established by proofs before the act was passed. Curtis v. Lea/vitt, 15 N. T. 13 ; S. C, 17 Barb. 309. This statute is retrospective iu its operation, and it applies to foreign , corporations litigating in the courts of this State. Southern Life Ins. da Trust Co. v. Packer, 17 N. Y. 51. A corporation is not merely precluded from interposing the de- fense of usury, but it cannot recover back usurious premiums which it has paid on the loan or forbearance of money. Butterworth v. O'Brien, 28 Barb. 187 ; S. C, 23 K Y. 275. Since the act of 1850, contracts of corporations have not been within the usury laws, and the act has been construed to include collateral contract of individuals as sureties, guarantors or indorsers for a corporation. The contract of the corporation being valid, although usurious, the contract of a surety, guarantor or indorser of such con- tract is also valid, and neither can claim any separate standing in re- spect to the defense of usury. Stewart v. Bramhall, 74 IST. Y. 85 ; Union National Bank Y. Wheeler, QO id. 612; Bosa y. Butterjield, 33 id. 665. But this act merely prohibits the defense of usury to a usurious contract made by a corporation, and does not apply to the case where the corporation succeeds to the rights of a party who might avail himself of the provisions of the usury laws. Therefore, if a corporation succeeds to the rights of a pledgor of property pledged to secure a usurious loan, it is not prohibited from demanding and re- ceiving the property pledged. Merchants' Exchange Nat. Bcmk v. {Jommercial Warehouse Co. 49 N. Y. 635. Where the defendant himself waives his defense to a judgment on the ground of usury, a subsequent purchaser under him, with notice of the judgment, cannot impeach it. French v. Shotwell, 20 Johns. 668 ; S. C, 5 Johns. Oh. 555. "" A judgment creditor, by selling the property of his debtor on exe- cution, may thus place himself in a situation to contest the validity of any prior lien or incumbrance affected by usury. A purchaser under a judgment and execution is an assignee by operation of law, and so stands in legal privity with the judgment debtor. Dix v. Van WycTc, 2, Kill, 522. See Yan Tassel v. Wood, 12 id. 388, 391 ; Mason v. Lord, 40 N". Y. 476. And where an action of replevin was brought against a sheriff for goods which he had taken on an execution, where the plaintiff claimed the property under a prior mortgage executed by the judgment debtor; it was held that the sheriff might show that the mortgage was usurious as a defense to the action. Dix v. Yan Wyohy 2 Hill, 522. 182 USUKY. Usury. But where a bond was conditioned to save harmless and indemnify the obligee against his liability as the maker of a promissory note then held by a third person, and to pay the same or cause it to be paid, the obligee may, without having paid any thing, recover the amount of the note against the obligor, upon his failure to pay the holder, because if the note is not paid by the obligor, the obligee is liable immediately upon the note, and the condition of the bond is forfeited ; and in an action upon such bond against the obligor, he cannot set up usury in the note as a defense. Churchill v. Hunt, 3 Denio, 321. "Where the holder and apparent owner of negotiable paper sells it to a bona fide purchaser at a discount, representing it to belong to himself and to be business paper, the transaction is not usurious as between the vendor and vendee of the paper, although the representation of the vendor was false, and it was in fact paper which had been made for the purpose of being sold at a usurious discount in the market. Holmes v. WilliaTns, 10 Paige, 326. Where a party purchases accommodation paper at loss than its face, on representations made by the parties to it that it is business paper, and on which he relies, he is entitled to re- cover the whole sum payable by its terms, although it exceeds the amount paid for it, with the legal interest thereon. Burrall v. DeOrotU 5 Duer, 3Y9. The rule applies as well when the representations are made by an accommodation indorser, as when made by the inaker. Mason v. Anthony, 3 Abb. Ct. App. 207 ; S. C, 3 Trans. App. 255 ; 2 Keyes, 609 ; 35 How. 47T. So, a certificate given by the maker of a promissory note at the time ■ of executing such note, and annexed thereto, in which he states that the note is given for value and will be paid when due, will estop the party giving it from falsifying his own statements, and prevent his setting up the defense of usury against a holder who has discounted the note on the faitli of the certificate, giving full value, under circumstances free from suspicion, and without any design to evade the statute. Mechanics^ Bank of BrooTclyn v. Townsend, 29 Barb. 569 ; S. C, 17 How. 669. So, where the maker of a promissory note annexes thereto a certificate that the same is given for value, and will be paid when due, and the note is afterward sold to a third person, for an amount less than should have been paid for it if discounted at legal interest, the maker is estop- ped by the certificate from setting up the defense of usury. Chamber- lain V. Townsend, 26 Barb. 611. The reporter erroneously gives this as a special term decision, when it was, in fact, decided at General Term. See 27 Barb. Errata, p. 8. Where the maker of a note employs an agent to negotiate the sale USURY. 183 Usury. thereof, to raise money to pay their joint debts, and the latter, on selling and transferring the same, assures the purchaser that the note is valid business paper in his hands, the maker will be bound by the representa- tions of the agent, and will be estopped from setting up the defense of usury. Ferguson v. Hamilton, 35 Barb. 427. In the absence of any limitation to his authority, it is within the powers of an agent employed to sell negotiable paper to represent it as being a business note and valid. lb. See Ahem v. Ooodspeed, Y2 N. Y. 108. If the maker of a promissory note negotiates it through the instrumentality of an agent, who, at the time of the sale and transfer thereof, represent to the pur- chaser that the note was given for a valuable consideration, or that it is a valid business note, and the purchaser buys the note upon the faith of such representations, and in ignorance of the fact that it never had a legal existence as a note, the maker and the agent will both be estopped from alleging the contrary of such representations, or from setting up the defense of usury. ParshaU v. Lamoreaux, 37 Barb. 189. But a mere accommodation guarantor of the note, who neither made any representations in relation to the character of the paper, or of the circumstances under which it was given, nor was cognizant of the representations made to the purchaser or to any one else, will not be estopped from interposing the defense of usury in the same manner as though he were a simple indorser of the note. lb. And where the maker of a promissory note gives it to the indorser merely to enable him to raise money on it for his own benefit, without any directions or instructions, such maker is not bound by the represen- tations of the indorser that it is business paper. Jackson v. Fassitt, 33 Barb. 6i5 ; and reporter's note explanatory in Furguson v. Hamilton, 35 id. 439, 440. So, where the acceptor of a bill or draft gives it to the drawer merely to enable him to raise money on it for his own benefit without any directions or instructions, such acceptor is not bound by the representations of the drawer that it is business paper. lb. If the purchaser of a note, which is represented by the payee and in- dorser to be business paper, knows the character of the paper, or has good reason to suspect its character, or does not purchase in conse- quence of the representations of the payee he cannot set up such re- presentations as an estoppel. Truscott v. Davis, 4 Barb. 495. But, if the purchaser purchased the note in good faith, and on the faith of the representations made by such payee and indorser, the latter will be estopped from setting up the defense of usury, though it would be otherwise as to the maker of the note, if such note was made for the sole accommodation of such payee and indorser to enable 184 USUEY. Usury. him to raise the money. lb. Jackson v. Fassitt, 33 Barb. 645. A certificate that a bond and mortgage were executed upon a full, lawful and valid consideration, and that there was no defense thereto, or equities latent or apparent in any way affecting the same, will only protect persons dealing with the security mentioned in it in good faith, believing the truth of the statement made by it, and relying upon it as the basis of the purchase. A purchaser knowing to the contrary can in no way be benefited by such an instrument. Nichols v. Nusshaum, 10 Hun, 214. A contract made between the parties to a usurious agree^ ment, that the usury shaU not be insisted upon to invalidate the agree- ment, is void and cannot be enforced. Mabee v. Orozier, 22 Hun, 264. Although, where an accommodation bill or note is made, and at the time of its first negotiation, representations are made that it is valid business paper, such representations will estop those who made them f I'om setting up the defense of usury, when an action is brought by the holder of siich paper, who gave value for it ; yet if there were no such representations, and no inquiries were made as to the character of the paper, the defense of usury is not excluded by the mere omission to disclose the true character of the paper. Glarh v. Sisson, 4 Duer, 408. To estop the parties to a bill of exchange by their representations in respect to its consideration and validity, such representations must be outside of the face of the bill. The recital in the bill of value received, and its indorsement do not stop tlie acceptor or the indorser from prov- ing that the acceptance and indorsement were for the accommodation of the drawer, and that the bill had no inception until its usurious dis- count or purchase by the plaintiff. Glarh v. Sisson, 22 N. T. 312 ; S. C, 4 Duer, 408. The representations which are made as to the char- acter of the paper may be oral or in writing, and they are as effectual as an estoppel when made orally as they would be in writing. Furgu- son V. Hamilton, 35 Barb. 427 ; Jackson v. Fassitt, 33 id. 645 ; Trus- coit V. Davis, 4 id. 495 ; Holmes v. William.s 10 Paige, 326. A lender cannot avoid his own contract on the ground that it con- tains a usurious reservation in his own favor. El/uoell v, Chamherla/in, 4 Bosw. 320 ; Billington v. Wagoner, 33 N. Y. 31. "Where a party to a usurious bill or note gives a new security for it to a holder for value, without notice of the usury, the new security is valid, although the holder could not have recovered on the bill or note. Smedberg v. Whittlesey, 3 Sandf. Ch. 320 ; Kent v. Walton, 1 Wend. 256 ; Cuthhert V. Haley, 8 Term E. 390 ; Kilner v. O'Brien, 14 Hun, 414 ; Sherwood V. Archer, 10 id. Y3. USURY. 185 Usury. And where a new securitj' is given to such a hona fide holder of a usurious note by one of the parties thereto, after it became due, it was held to be valid, notwithstanding the holder of the usurious note was apprised of the usury therein after he became its holder and before the new security was given. 8medhergY. Simpson, 2 Sandf. 85. The pos- session of a usurious note by the iadorsee is presumptive evidence that he received it before it became due, for a valuable consideration, with- out notice of the usury. lb. ; Smedberg v. Whittlesey, 3 Sandf. Ch. 320. Where the payee of a usurious note indorsed it to a third per- son for a valuable consideration, who took it without notice of the usury, and he afterward brought an action against the payee seeking to charge him as indorser, it was held that the indorsement amounted to a new and independent contract between the parties, and that the usury in the original note was no defense to the action by the holder against the payee on his indorsement. McKnight v. Wlieeler, 6 Hill, 492 ; Morford Y. Davis, 28 N. T. 481. But see Treadwell v. Archer, 76 id. 196. The law of the place at which a contract is made, or of that where it is to be performed, frequently has an important bearing upon ques- tions of usury. There are some general rules which are applicable to all contracts, and which determine whether such contracts are vahd or void. The construction and validity of a contract which is purely per- sonal depends upon the law of the place where the contract is made, unless it is made in reference to the laws of some other place or coun- try where it is to be performed or carried into effect, and, in the latter case, the contract is governed by the the law of the place where it is to be performed. Chapman v. Robertson, 6 Paige, 627; Hosford v. Nichols, 1 id. 221 ; Hyde v. Ooodnow, 3 N". Y. 276 ; Pomeroy v. Ains- worth, 22 Barb. 120 ; Curtis v. Leavitt, 15 N. Y. 14 ; Balms v. Worn- bough, 38 Barb. 352. Ante, 138. Where a note of a resident of this State is made, dated and payable in this State, and no rate of interest is named in it, and no intention of the maker existed that it should be taken out of the State for dis- count, it is invalid if negotiated in another State at a rate of discount greater than that allowed by the usury laws of this State. Dickinson V. Edwards, 77 N. Y. 573 ; Jewell v. Wright, 30 id. 259. As a general rule, interest is payable according to the laws of the place where the contract is made ; but where the contract is made in reference to the laws of another country, and it is to be performed there, the interest is to be calculated according to the laws of the place where it is to be performed. Hosford v. Nichols, 1 Paige, 220 ; Pome- roy v. Ainsworth, 2% Barb. 120. Where a personal contract by its 24 186 USUKT. Usury. terms is to be performed in another State, and the place of perform- ance is not chosen with any intention to evade onr laws, but because that place best suits the honest intention of the parties, our usury laws do not apply to it, although it be made and executed here. And where a negotiation for the sale and purchase of lands in Florida was made in that State, but the final agreement and the notes given for the pur- chase-money were executed in the State of New York, the notes being payable in Florida, it was held that the notes were not void for usury, although interest at the rate of eight per cent was reserved. Berrien V. Wright, 26 Barb. 208 ; Curtis v. Zeavitt, 15 N". Y. 14 ; Bard v. Boole, 12 id. 495. Where a contract for the payment of money is made in one place and payment in another, and no rate of interest is expressed in the contract, the interest is to be governed by the law of the place where it is payable. Bomeroy v. Ainsworth, 22 Barb. 120. And where a contract is to be performed partly in one State and partly in another, each portion is to be governed by the laws of the State where the performance is to take place. lb. ; Curtis v. Leavitt, 15 ~E. T. 14. A note made in another State or Territory, and designating no place of payment, which bears a higher rate of interest than is allowed by the statute in this State, is not invalid on account of iisury, unless it is shown that the laws of the place where the note was made prohibit such rate of interest. Davis v. Garr, 6 N. Y. 124. Where a contract is made in another State, between parties subject to the laws of that State, and in pursuance of the contract, one of the parties draws a bill of exchange in favor of the other, upon a person residing in J^qw York, the parties will be considered as contracting ac- cording to the laws of the former State, and the bill will not be usuri- ous, unless it is rendered so by the laws of the State where it was drawn. Bank of the State of Georgia v. Lewin, 45 Barb. 340 ; Balme V. Womlough, 38 id. 352. A party residing in one State who goes into another State and there makes an agreement with a citizen of that State for a loan, lawful by its laws, but usurious under the laws of the State where the borrower resides, cannot render his obligation void by making it payable in his own State. Nor does the fact that the obligation is executed in the latter State, and sent to the holder by mail, require that it should be governed by the usury laws of the State where it was signed. Wayne Co. Savings Bank v. Low, 81 N. Y. 566 ; Tilden v. Blair, 21 Wall. 241. When a question arises in our courts upon a transaction which has occurred in another State, and there is nothing to show what the USUEY. 187 Usury. law of that State is, and the transaction is of such a nature as to raise no presumption one way or the other, the court will follow the laws of this State. City Savings Bank v. Bidwell, 29 Barb. 325. A party alleging that an agreement is invalid, under the usury laws of another State, must show what the laws of that State are in relation to usury. And in the absence of such proof, the presumption is that the agreement is valid, under those laws. lb. ; Pomeroy v. Ainsworth, 22 Barb. 120 ; Davis v. Oarr, 6 N. Y. 124. A contract which is made in another State, will not be presumed to be void on account of usury, merely because the note reserves a higher rate of interest than is valid here. See Klinok v. Price, 4 W. Ya. 4 ; Uhler v. Semple, 20 N. J. Eq. 288. It is not material, on a question of usury, where the contract, note, or other security, is dated or signed ; for the place where they are de- livered is the place of its execution. The place where the instrument is executed is not important, except in those cases in which the law of that place renders it invalid or void, or in those cases in which the place of executing the paper may have some bearing in determining the place where the contract is to be performed. In general, the rights of the parties to a contract, as distinguished from their remedies, are to be determined by the law of the place where the contract is to be per- formed. An exception to this rule, however, exists where the contract is declared void by the law of the State or country in which it is made, but would be valid in the place where it is to be performed. In such a case, the contract cannot be enforced in either place. Hyde v. Oood- now, 3 N. Y. 267. Where there is a usurious agreement upon the loan of money, it is immaterial whether the unlawful excess be actually paid or only promised to be paid ; in either case the contract is void. Hammond v. Hopping, 13 Wend. 605. "Where a note or other in- strument is made, which on its face reserves lawful interest, it may be shown that another contract was made in writing, or by parol, at the same time, which promised to pay an additional sum as interest ; and if this is established, such note or instrument will be void for usury. Aus- tin V. Fuller, 12 Barb. 360 ; Maooniber v. Dunham, 8 Wend. 550 ; Merrills v. Zomi, 9 Cow. 65 ; Law v. Merrills, 6 Wend. 268. The nature of a usurious contract to extend the time of payment of a debt, and its effect in discharging a surety, has been explained. Yol. I, 674. No custom or usage can render a transaction lawful, if it falls within the prohibition of the statute relation to usury. The statute is para- mount, and will render every contract void which is made in violation of its provisions, no matter how numerous the instances, or how com- 188 USURY. Usury. mon the practice of disregarding it. Pratt x. Adrnns, 7 Paige, 617 ; Dunham, v. Dey, 13 Johns. 40 ; Dunham v. GovM^ 16 id. 367 ; Bank of Utica V. Wager, 2 Cow. 712. The devices which are employed for the purpose of evading the usury laws are so numerous that no attempt need be made to enumerate or classify them. The books of reports abound with cases which show the perseverance and ingenuity of those who have vainly attempted to evade or to disregard the settled law. The statute is plain and no one need violate its provisions. But, whenever any person attempts to take usurious premiums for the loan or forbearance of money, his conduct is liable to be examined by a jury, or by a court sitting in their place ; and if, upon the evidence given, it is proved that a usurious premium has been taken or received, or has been agreed to be taken or received, either directly or indirectly, it is the province and the duty of such jury or court to declare the facts as they truly are ; and, upon such finding of facts, the court will adjudge, as a matter of law, that the contract is void. White v. Stillman, 25 N. Y. 541 ; CaUin v. Gunt&r, 11 id. 368 ; Sizer v. Miller, 1 Hill, 227 ; Rockwell v. Charles, 2 id. 499 ; Conger v. TradesmoM's Dank, Hill & Denio, 34 ; Doe v. Brown, Holt's N. P. 295 ; Doe v. Goooh, 3 Barn. & AM. 664. The cases which are to be decided by a jury or by the court upon questions of fact, are those in which the contract does not show usury upon its face. For, in those cases in which the contract is usurious by its very terms and upon the face of the contract, it will be adjudged void by the court as a mat- ter of law, whenever the question is properly before such court. Every pledge, mortgage or assignment of property, which is made upon a usurious consideration and agreement, as a security for a loan of money, is absolutely void ; and the person who is thus pledged, mort- gaged, or assigned it, may recover the property in an action of replevin, or its value in an action of trover. Schroeppel v. Corning, 6 N. Y. 107; Sohroejypel v. Corning, 5 Denio, 236. But, where there is an existing usurious debt, and the debtor voluntarily sells and deliv- ers personal property to the creditor in payment of such debt, an action of trover cannot be maintained to recover the value of such property ; nor can any other action be maintained by the debtor against the credi- tor, except an action under the statute to recover the value of the prop- erty so sold, or the money paid on a usurious agreement. Ante, 157, § 3 ; Aokley v. Finch, 7 Cow. 290 ; Schroejppel v. Coming, 10 Barb. 576 ; S. C, 6 IST. Y. 107. The statute which limits the right of the debtor to sue vnthin one year, ante, 157, § 3, relates to those cases only in which a pre-existing USUEY. 189 Usury. usurious debt has been paid ; and, if the property was delivered at the time of making the usurious loan, or if money was usuriously paid at that time, an action of trover, etc., will lie to recover the value of the property, or an action may be maintained to recover the money paid, lb. The rules of pleading and of evidence in cases relating to usury will be discussed in their appropriate place, and the important cases will be noticed, so far as it wiU be proper to do so, in this work. CHAPTER XVI. mSURAl^CE. Sectioit 1. Contracts of fire insurance and actions thereon. Actions upon insurance policies are not very frequent in justice's courts. But, since there are some cases in which such actions may be brought in these courts, a very brief notice of the law may be desirable. One of the first questions for consideration is as to the power to con- tract for insurance against loss or damage by fire. It is a universal rule that a policy of insurance is absolutely void unless the insured had, at the time of entering into the contract, an insurable interest in the property insured. Hence a complaint in an action on a policy of fire insurance must contain an averment of such an interest m the plaint- iff, or in the person for whose benefit the contract was made, in order to state a cause of action. Williams v. Tns. Go. of North America, 9 How. 365 ; Freeman v. Fulton Fire Ins. Co., 14 Abb. 398 ; S. C, 38 Barb. 247 ; Fowler v. N. T. Indemnity Ins. Co., 26 N. Y. 422. In case of an assignment of the policy before loss, the complaint must show that the plaintiff or his assignor had an interest in the subject insured. lb. "Where the property insured is mortgaged, and the policy is pro- cured, and the premium paid, by the mortgagor, but the loss, if any, is payable to the mortgagee, the mortgagor cannot maintain an action in his own name as sole plaintiff, for the recovery of the money due on the policy, without alleging in the complaint that the mortgagee has been fully paid, and has ceased to have any interest in the policy. Ennis V. Harmony Fire Ins. Co., 3 Bosw. 516. If the mortgage debt has not been paid, the mortgagee ought to be joined as a co- plaintiff, or he ought to sue in his own name alone. If the mortgagee refuses to do either he may be made a defendant ; but the complaint, in that case must show the facts why he is thus made defendant. lb- If by the terms of the policy the loss is made payable to a mort- gagee of the property named therein, he may maintain an action in his own name for- the loss without joining those who were in actual possession of the property at the time of the insurance, and in whose name the policy was obtained, although they were the owners of the property subject to the interest of the mortgagee. Roussel v. INSUEANCE. 191 Contracts of fire insurance and actions thereon. St. Nicholas Ins. Co., 52 How. 495 ; S. C, 9 Jones & Sp. 279. In case the loss is payable to a third person, who has no interest in the property insured, but only claims the insurance as collateral security for liabilities incurred prior to the insurance, the latter only can main- tain an action on the policy as an appointee of the owner who is au- thorized to receive the same. FrinlcY. Hampden Ins. Co., 31 How. 30 ; S. C, 45 Barb. 384; 1 Abb. (N. S.) 343 ; Cone v. Niagara Fire Ins. Co., 3 Sup. Ct. (T. & C.) 33, 39 ; S. C, 60 K Y. 619; Merwin v. Star Fire Ins. Co., 7 Hun, 659; Hastings v. Westchester Fire Ins. Co., 73 N. T. 141, 150 ; Baltis v. Dobin, 67 Barb. 507. But see Lasher V. North Western Nat. Ins. Co., 18 Hun, 98. In the latter case, it is not necessary for the plaintiff to allege in his complaint that he had an insurable interest in the property insured. Frinh v, Hampden Ins. Co., 31 How. 30; S. C, 45 Barb. 384; 1 Abb. (K S.) 343. When an action is brought by a mortgagee named in the policy, and the com- plaint avers that the plaintiff had an insurable interest in the property at the time the insurance was effected, the legal presumption is that such interest continued until the time of the loss, and no allegation of the existence of such interest at the time of the loss is required. Hous- sel V. St. Nicholas Ins. Co., 52 How. 495 ; S. 0., 9 Jones & Sp. 279. In an action by an assignee of a policy, or of a right to recover the money due for the loss, -it will not be sufficient for the plaintiff to allege his interest in the subject-matter of the action, and of the assignment thereof, in general terms, without stating details as to either. Fowler v. N. Y. Indemnity Ins. Co., 26 N. T. 423; reversing S.C., 23 Barb. 143. It is not necessary, in a complaint, for the plaintiff to negative a breach of the conditions of the policy, on his part ; such breach, if one is alleged by the defendant, is a matter of defense to be set up by him. Hunt v. Hudson River Fire In^. Co., 2 Duer, 481. A mortgagor who mortgages property by a chattel mortgage, has an insurable interest by reason of his right to the equity of redemption. Allen w. FramMin Fire Ins. Co., 9 How. 501. And so has the mort- gagee. Roussel V. St. Nicholas Ins. Co., 52 How. 495 ; S. 0., 9 Jones & Sp. 279. See Trader's Ins. Co. v. Robert, 9 "Wend. 404. A legal or equitable title is not necessary to give an insurable interest in prop erty. If one has a right which may be enforced against the property, and which is so connected with it that injury thereto will necessarily result in loss to him, he has an insurable interest. Rohrlach v. Oer- mania Fire Ins. Co., 62 IST. Y. 47 ; S. C, 20 Am. Rep. 451 ; Harvey V. Cherry, 76 N. Y. 436. One of two several mortgagees may insure his interest in the mortgaged property, and the other will not be en- 192 INSURANCE. Contracts of fire insurance and actions thereon. titled to share in the benefits of the insurance. Waring v. Loder, 53 N. T. 581. And one of two joint-owners or owners in common of prop- erty may insure his interest separately against loss by fire, and may re- cover and retain the insurance in case of loss. Harvey v. Cherry, 76 N. Y, 436 ; Miller v. Eagle Ins. Co., 2 E. D. Smith, 29D. An ad- ministrator of an insolvent estate hals an insurable interest in the build, ings belonging to it. Herhim.er v. Rice, 27 N. T. 163. A person whose premises have been sold under an execution has an insurable in- terest so long as the right of redemption exists in the debtor or in his creditors. Cone v. Niagara Fire Ins. Co., 60 N. Y. 619. So a mort- gagor who has given a bond or obligation which is secured by the mort- gage, has after a sale of the mortgaged premises an interest in the pres- ervation of the property in order that his debt may be paid out of it which is insurable. Waring v. Loder, 53 N. Y. 581. So agents, com- mission merchants or others having the custody of property and the responsibility for, its preservation may insure it in their own names and recover of the insurer the full amount named in the policy, if not in excess of the value of the property. Waring v. loidemnity Fire Ins. Co., 45 N. Y. 606 ; Sturm v. Atlaniio Mut. Ins. Co., 63 id. 77 ; Kline V. Queen Ins. Co., 7 Hun, 267 ; S. C. afiirmed, 69 N. Y. 614. A sheriff or a constable who has taken personal property into his posses- sion by virtue of an attachment, replevin process, execution or other legal process, has a special property therein, which gives him an insur- able interest. White v. Madison, 26 N. Y. 117. And a deputy sheriff as such, is authorized without a special power for that purpose, to insure such property in the name and on behalf of his principal. lb. Where goods are sold on an execution, at a sheriff's or a constable's sale, the purchaser may recover the value of the property if lost by fire, in a case where such property was insured at the time of the sale, and where the company, subsequent to such sale, gave their consent to an assignment of the policy to the purchaser. Hooker v. Hudson Rimer Fire Ins. Co., \1 N. Y. 424. Where a policy upon goods and chattels covers " the property of the insured or held by him in trust," the person insured may recover the value of property intrusted to him for the purposes of being manufac- tured ; and he may recover the full value of the entire property, with- out being limited to his interest therein. Stillwell v. Staples, 19 N. Y. 401. An insurance effected by one partner on partnership property, al- though made in his own name, and expressed to be on his sole account, will protect his undivided interest so as to enable him to recover the INSURANCE. 193 Contracts of fire insurance and actions thereon. amount of that interest, in case there is a loss. Irving v. Excelsior Fire Ins. Co., 1 Bosw. 508 ; Sharp v. Whipple, id. 557. A vendee, under a contract of purchase, has an insurable interest. MoOmney v. Pho&nix Fire Ins. Co., 1 "Wend. 85 ; Tyler v. ^tna Fire Ins. Co., 12 id. 507; S. C, 16 id. 885 ; Chase v. Hamilton Mut. Fire Ins. Co., '2,% Barb. 527; Acerv.M^chanW Ins. Co., 57 id. 68. And this interest exists even after the contract has become voidable at the election of the vendor by reason of the failure of the vendee to perform his part of the contract, if the vendor has not exercised his right to declare the contract void. Pelton v. Westchester Fi/re Ins. Co., 13 Hun, 23. A person holding personal property under a conditional contract of sale has an insurable interest. Lasher v. Northwestern National Ins. Co., 18 Hun, 98. And so has a vendor of property un- der a contract that the title shall remain in him until the property is paid for. Tollman v. Atlantic Ins. Co., 3 Keyes, 87 ; S. C, 33 How. 400 ; 4 Abb. Ct. App. 34-5. Where a policy has been assigned as a collateral security, and an action is brought by the assignee, the complaint ought to show on its face that the assignee had an interest in the property insured at the time of the loss or it will be demurrable. Peabody v. Washington Co. Mutual Ins. Co., 20 Barb. 339. The assignor of the policy is the real owner of the property in such a case, subject only to the rights of the assignee to the payment of his debt, and in case of a loss, the assignor may re- cover against the company to the extent of the loss. lb. Where after default in the payment of a chattel mortgage, but before the possession of the property is disturbed, the mortgagor procures a policy of insurance providing that the loss if any shall be payable to the mortgagee, the policy covers the entire property, and not merely the value of the equity of redemption. Smith v. Exchange Fire Ins. Co., 8 Joues & Sp. 492. An agreement for insurance which is perfected by an acceptance of the risk, and the payment of the premium to the company's agent is valid, and it is binding upon the company, which is liable in case of loss, even though such loss occurs before the actual delivery of the policy to the insured. Whitaker v. Farmers' Union Ins. Co., 29 Barb. 312 ; Chase V. Hamilton Mutual Ins. Co., 22 id. 527 ; Collvns v. Phoenix Ins. Co., 14 Hun, 534. In such a case it is not necessary to obtain a policy before an action can be maintained. After the loss he may maintain an action upon the agreement and the loss, and recover a judgment for the amount actually due. Bock'uoellv. Hartford Fire Ins. Co., 4 Abb. 179; Perhins v. 25 194 INSURANCE. Contracts of fire insurance and actions thereon. Washington Ins. Go., 4 Cow. 645. And see Lighthody v. North America Ins. Co., 23 "Wend. 25, 18. A mere oral contract of insurance supported by a sufficient considera- tion, which is to take efiEect immediately, although it may be entered into contemporaneously with an agreement by the insurers to deliver, and the assured to subsequently accept as a substitute therefor, a written policy by the former in the form usually adopted by them, becomes binding and remains in force until the delivery or tender of such policy ; and until then the condition usually inserted in such policies, requiring prepayment of the premium to make them binding, does not, unless expressly adopted by the parties in such oral contract, form any part of the contract of insurance between them. Kelly v. Commonwealth Ins. Co. of Penn., 10 Bosw. 82. In such a case, a mere demand of the premium without insisting upon it or tendering a valid policy, does not terminate the oral insurance ; and under such oral insurance the insured may recover for a loss, although after it occurred, and while the in- surers were ignorant of it, he paid them the premium, and received from them a written policy which was not binding on them because not properly countersigned. lb. A valid contract for insurance may be made by parol. Fish v. Cot- tenet, 4A N. T. 538 ; S. C, 4 Am. Eep. 715 ; Trustees of Baptist Church V. Brooklyn Fire Ins. Co., 19 id. 305 ; Audubon v. Excelsior Ins. Co., 27 id. 216 ; Rliodes v. RaiVwwy Passenger Ins. Co., 5 Lans. 71 ; Ludwig v. Jersey City Ins. Co., 48 N. Y. 379, 383 ; S. C, 8 Am. Eep. 556 ; Coohe v. ^tna Fire Ins. Co., 7 Daly, 555. There are at least five ingredients necessary to a contract of insurance, first, the subject-matter, second, the risks insured against, third, the amount,yoM?'pel, 2 Denio, 368 ; S. C, 5 Hill, 458. A factor who sells goods under a del credere commission is liable to pay his principal the value of all goods sold. And if he sells goods to insolvent purchasers he is still liable to pay the amount to his own principal. Such a promise is not a promise to pay the debt of the purchaser. The factor assumes a trust when the goods are placed in his hands that he will not sell to irresponsible persons, and that he will in any event pay the amount of such sales as he may make. In such a case he is merely guaranteeing his own con- duct, not that of a third person. lb.; Cartwright v. Oreene, 47 Barb. 9. An agreement made between parties prior to or cotemporaneously 268 STATUTE OF FRAUDS. Promises to answer for the debt, default or miscarriage of another. witli their executing a written obligation as sureties, by which one promises to indemnify the other from loss, is not required by the statute of frauds to be in writing to render it valid. Barry v. Ransom, 12 J!^. Y. 462 ; Ferrell v. Maxwell, 28 Ohio St. 383 ; S. 0., 22 Am. Eep. 393 ; Horn v. Bray, 51 Ind. 555 ; S. C, 19 Am. Eep. 742 ; Konitzhy V. Meyer, 49 N. Y. 571. The reason is that the party promising is already bound as an original promisor by his signature to the instrument, and tlie indemnity promised is to secure his own default and not the default of another. A parol promise, made without consideration, to indemnify and save tiie promisee harmless from all damages, by reason of his becoming bail for a third person, is void as being within the statute of frauds. Kingsley v. Balooine, 4 Barb. 131 ; overruling Chajpin v. Merrill, 4 Wend. 657. See BwJcmyr v. Da/rnell, 1 Smith's Lead. Cases, 134 or 371, 383-385, top paging, 5th ed. The statute is not limited to cases in which one person assumes to answer for the debt of another, but it extends to every special promise to answer for the default or miscarriage of another person. There are numerous cases in which parties agree to perform some labor, erect some building, or to do some specified act; so there are many instances in which some surety is required for the faithful conduct of a clerk, agent, etc. In all such cases a promise to answer for the default or miscarriage of such clerk, etc., or for the performance of the special contract, must be by an agreement in writing or it will be void, not- withstanding there may be a valid legal consideration for the promise. The same rule applies to actions of tort. And a verbal promise that a third person will use a hired horse properly will be void as a promise to answer for the default or miscarriage of another person. A mere written promise which does not show any consideration, and which is not in the nature of a request (Yol. 1, 202), will not be sufficient to create a liability to answer for the debt, default or miscarriage of another. Brewster v. Silence, 8 N. Y. 207; Draper v. Snow, 20 id. 331 ; S. C, 6 Duer, 662. A written, signed promise to pay the debt of a third person will be void, if no consideration appears upon the face of the writing, or if the only consideration is a past or executed one which did not arise at the request or upon the promise of the grantor. Famsworth v. Clark, 44 Barb. 601. If the debt, which is guaranteed is founded upon a good con- sideration, that will support the guaranty, if it is made at the same time with the creation of such debt ; but if the debt is one already existent. STATUTE OF FRAUDS. 269 Promises to answer for the debt, default or miscarriage of another. the guaranty will be void, unless there is a new consideration to support it. lb. When it is sought to charge one person with the value of goods delivered to another person, it must be sbown that the sole credit was given to the person sought to be charged, and if it appears that the credit was given to tbe principal and the surety jointly, orthat the surety was not to be liable unless in case of a default by tbe principal, the surety will not be liable, and his promise is void by the statute, if the promise is a verbal one. Allen v. Scarff, 1 Hilt. 209 ; Brady v. Sach- rider, 1 Sandf. 514; DlxonY.Frazee, 1 E. D. Smith, 35; OarvUleY. Crane, 5 Hill, 483 ; Brown v. Ba/rdshaw, 1 Duer, 199 ; Knox v. Nutt, 1 Daly, 213 ; Cowdin v. Gottgetreu, 55 N. Y. 650 ; Pettit v. Braden, 55 Ind. 201 ; Sioift v. Pierce, 13 Allen, 139 ; Walker v. Richards, 39 N. H. 259. It is always a question of fact to determine to whom tbe credit was given. And, if the evidence is conflicting upon that question, the find- ing of a jury, or of the justice in their place, will be conclusive. Flan- ders V. Orolius, 1 Duer, 206 ; Ghase v. Bay, 17 Johns. 114. But, if it appears, by uncontradicted evidence, that the goods were furnished to B. on his application, and that they were charged in account to him, no action can be maintained against A. for the price, notwith- standing A. may have paid a part of the debt, and a verdict against A. in such a case will be set aside as being against evidence. Brown v. Bradshaw, 1 Duer, 199 ; Brady v. Saohrider, 1 Sandf. 514. The fact that tbe creditor charged the goods directly to the promisor is not con- clusive on the latter. Cowdin v. Oottgetreu, 55 N. Y. 650. There is a class of cases in which a promise may be binding if it is made before the work is completed. The defendant employed one Cave- nagh to excavate a vault, in front of his house, and Gavenagb hired the plaintiff to do the work. The plaintiff commenced the job and after working one day, he went to the defendant and declined going on with the job unless the latter would pay him. The defendant told him to go on with the job and " he should be paid." A verdict was rendered for the plaintiff at the Circuit, and the General Term affirmed a judgment thereon. Devlin v. Woodgate, 34 Barb. 252. In another case, the plaintiff was employed by G. to build for one S. a machine for crush- ing ore, S. having previously arranged with D. & Co. for payment and commencing work on the machine. Subsequently D. & Co. refused to pay for the machine, and the plaintiff, on being informed of such refusal, declined proceeding under his contract ; whereupon the defendant promised, verbally, that if the plaintiff would go on and complete the 270 STATUTE OF FKAUDS. Promises to answer for the debt, default or miscarriage of another. machine, he, the defendant, would pay for it. The plaintifE completed the machine and the defendant was held liable to pay for it. Quintard sr. De Wolf, Si Barb. 97. The court held also that the first contract was terminated, and that the agreement of the defendant was a contract made on his own behalf, and not a promise to answer for the debt of another person. So, where A. had contracted to build a house for B., to be paid for when finished, and A. refused to go on and perform the contract because B., after the materials were collected and the building framed, had absconded, and the plaintiff was induced to proceed and finish the building upon the representation of C. that he had purchased the interest of B. in the work, and upon his promise that he would pay A., it was held that C. was liable to pay for the work done. King v. I>espard, 5 Wend. 277. So where a materialman refused to furnish materials for a house until the owner promised to pay for them, which the owner did, he was held liable to pay for the materials obtained by the contractor who bargained with the defendant to build his house. Darlington v. McGann, 2 E. D. Smith, 411. These cases which have been cited all show that the work was not completed so as to create a debt in favor of the laborer against the person who made the original contract ; or that the original contract was abandoned by the laborer, and that the work was performed under the new agreement. In most of the cases it appeared too that the work done was for the partic- ular advantage of the person who promised to pay for it. They were cases too which had been submitted to a jury, who had found these facts upon proper evidence, and, as we have seen, their ver- dict was conclusive upon the questions of fact, if sustained by suffi- cient evidence. A collector of a school district levied upon certain property by virtue of a warrant duly issued by the trustees of the district, and the defend- ant agreed with the collector that, if he would leave the property in the possession of the defendant, he would produce the property or pay the tax ; the collector thereupon delivered the property to the defend- ant, who did not produce it because it had been removed ; and it was held that the defendant was liable to pay the amount of the tax to the collector, and that the case was not within the statute of frauds. Hil- lardY. Austin, 17 Barb. 141. Where the defendant signs a written instrument which requests the plaintiff to deliver property to a third person, or if the paper promises to pay for property delivered to a third person, in case the plaintiff will deliver it, such paper contains a sufficient expression of the con- sideration ; and the defendant will be liable to pay for the goods if STATUTE OF FRAUDS. 271 Promises to answer for tbe debt, default or miscarriage of another. they are delivered in pursuance of such request or promise. Church V. Brown, 21 N. T. 315; reversing S. C, 29 Barb. 486. And see Bailey Y. Freeman, 11 Johns. 221. A letter written by the defend- ant to G., stating that if the owner of a specified house will let it to G. at a rent named, he will become security for G., and directing G. to state the sum and to send the papers to the writer for execution, inures to the benefit of the owner on his demising the house to G. on the faith of the letter at the terms specified ; and he can maintain an action upon the promise on the defendant's refusing to execute the proper security. And the letter expresses on its face a sufiicient consideration to stistain the promise within the statute of frauds. Waterhury v. Oraham, 4 Sandf. 215. A request by the defendant to the plaintiff to attend, as a physician and surgeon, upon a third person, and a promise by the de- fendant to the plaintifE that if he will so attend the defendant will pay therefor, and the bestowing of such attendance by the plaintiff upon such request, and relying solely upon such promise, render the defend- ant liable to pay what such attendance is reasonably worth, and his promise need not be in writing to render him liable. Hanford v. Hig- gins, 1 Bosw. 441. But the defendant, in such a case, may, at any time, give notice to the plaintiff that he will not be liable for attend- ance or services subsequently rendered, and on so doing the plaintiff can make no claim on him for services or attendance subsequent to such notice. lb. In an interview between the plaintiff, the defendant, and one H., it was agreed by parol between the three, that H. should do certain work for the defendant for which the plaintiff should pay H. in goods, and that the defendant should pay the amount to the plaintiff in lumber. The work having been done, it was held, in a suit by the plaintiff on the defendant's promise, that it was made upon a good con- sideration and was binding, and also that the promise need not be in writing within the statute of frauds. Mather v. Perry, 2 Denio, 162. It not unfrequently happens that an individual owes a debt which he desires to pay by turning out or assigning a note or account against some third person, in discharge of his own debt, with a guaranty that such note or account is valid and collectible. If the creditor chooses to accept such a note or account as an actual payment of the debt of his debtor, that will operate as a payment of the debt and a discharge of the debtor. But it is not usual for a creditor to accept of such a note or account as an actual payment, although the creditor frequently ac- cepts of such demands when accompanied with a guaranty of payment. The law is now well settled in relation to such transactions. The statute of frauds relating to promises to answer for the debt, 272 STATUTE OF FEAUDS. Promises to answer for the debt, default or miscarriage of another. default or miscarriage of another applies only where the promisor stands in the relation of a surety for some third person, who is the principal debtor; and where, in an action on a written promise to guarantee the payment of a chattel note, it appeared that the defend- ant transferred the note to the plaintiff, and made the guaranty in con- sideration of moneys paid by the plaintiff for the defendant at his request, it was held that the promise was valid, though it expressed no consideration. Johnson v. Oilhert, 4 Hill, 178. So, where the payee of a note indorsed the same to the defendant, and the latter transferred it to the plaintifE for a valuable consideration advanced by him at the time, and the defendant executed a guaranty of the payment of the note upon a separate paper which did not express any consideration ; it was held that the plaintiff could recover on the guaranty, or that he could recover for money lent and advanced upon an implied as- sumpsit. Tyler v. Stevens, 11 Barb. 485. In another case the plaintiff sold a horse to the defendant, upon an agreement of the latter to de- liver to the plaintiff a good and collectible note of some third person, who was responsible for the amount, which was $200. The defendant subsequently sent to the plaintiff a note made by one P., a stranger to the plaintiff. ITie plaintiff took the note and laid it away, remarking that he did not know the man. When the note became due P. was in- solvent. It was held that the note was not received and taken by the plaintiff in absolute payment of the price of the horse, but as a condi- tional payment ; and that the note proving to be worthless, the plaintiff could recover the price of the defendant. Torry v. Hadley, 27 Barb. 192. The defendant on making a purchase of a horse agreed to deliver, in part payment, the chattel note of a third person for a wagon, and the defendant told the plaintiff that such third person was good, and he would warrant that the plaintiff would get the wagon when the note became due. The wagon was not delivered, and it was held that the defendant was liable to pay the amount agreed ; that the verbal agree- ment was valid ; that the acceptance of the note without a written guaranty was sufficient, and no waiver of the verbal agreement ; and that the guaranty was to be construed as a guaranty of the payment of the note, and not that it was collectible. Cardell v. Mol^iel,'^!. xT. Y. 336; Fowler Y. Clearwater, 35 Barb. 143. The acceptance by a creditor from his debtor of a bill or note made by a third person on account of the debt does not satisfy it unless the parties agreed that it should be received as payment. J^oel v. Murray,- 13 N. T. 167. Where the note or biU is received on a precedent debt, the presumption is that it was not taken as payment, and the burden STATUTE OF FRAUDS. 273 Sale of an interest in lands, etc. of establishing that it was agreed to be taken in payment is upon the debtor. lb. But where it is received contemporaneously with the con- tracting of the debt, the presumption is that it was taken in payment, and the burden of provdng the contrary rests on the creditor. lb. And see Ton-y v. HadUy, 27 Barb. 192, 196 ; G^son v. Toley, 46 N. Y. 637 ; S. C, 7 Am. Hep. 397. When the agreement is required to be in writing, it must always be legally sufficient to show on its face that a valid contract exists. New- comb V. Clark, 1 Denio, 226. Where an agreement is made for the benefit of the plaintiff, he may sue upon it although the consideration moved from a third person, and the promise was made to him for the benefit of the plaintiff. Yol. I, 209. And such promises heed not be in writing to make them valid, lb. § 4. Sale of an interest in lands, etc. Estates in lands are deemed to be of such importance that the law requires that the transfer shall be in writing and under seal. And there are but few interests in lands which can be created or transferred without writing. Parties may, however, be so far estopped by their acts and declara- tions in regard to disputed boundary lines as to conclude them as effectually as if there had been a conveyance by deed. Where a boundary line is uncertain, indefinite and disputed, the owners of the adjoining lots may agree upon and establish, by parol, a line, which neither can afterward dispute. Ambler v. Cox, 13 Hun, 295 ; Belts v. Brown, 3 Mo. App. 20 ; Mirier v. Mayor of New York, 5 J. & S. 171 ; Wood v. Lafayette, 46 N. Y . 484 ; S. C. again, 68 id. 181 ; Vosburgh v. Tealor, 32 id. 561. And it is equally competent for them to authorize another person to determine such line for them as their joint agent or arbitrator, and the determina- tion of the line by their agent and their assent to such settlement will bind them the same as if it had been determined by themselves. lb. ; Stout V. Woodward, 5 Hun, 340 ; S. 0. afiirmed, 71 N. Y. 690. But where the boundary line is not indefinite or uncertain, a parol agreement to establish a new line would be void by the statute of frauds. Vosburgh V. Teator, 32 N. Y. 561 ; Smith v. MoNamara, 4 Lans. 169 ; Eaynor V. Timerson, 51 Barb. 617; S. C. affirmed, 54 N. Y. 639. In an action which involved the determination of the true line be- tween adjoining owners, evidence was given by the plaintiff tending to show that, about thirty years previously, the line between the re- spective grantors of the present parties was uncertain and in dispute ; that such grantors orally agreed upon the location of the line, and to 85 274 STATUTE OF FRAUDS. Sale of an interest in lands, etc. erect a division fence on such line ; that they afterward did erect ench fence, and severally entered into possession and occupied up to such line and acquiesced in such location for a reasonable length of time, and until the parties to this action bought and went into possession ; and it was held that these facts, if proved, rendered the line so estab- lished the boundary line between the parties, even as against the true line, though the true line could, at the time of the trial of the action, be determmed with certainty. Williams v. Montgomery, 16 Hun, 50. An oral contract between the owners of adjoining lands which limits the use which one of the owners should make of his lot, or the manner in which he should build upon or occupy it, is within the statute and void. Rice v. Roberts, 24 "Wis. 461 ; S. C, 1 Am. Eep. 195. The provisions of the statute are very explicit, and are quite plain when carefully read. " No estate or interest in lands, other than leases for a term not ex- ceeding one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, as- signed, surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by his law- ful agent thereunto authorized by writing." 3 E.. S. 220, § 6, 5th ed. " The preceding section shall not be construed to afEect, in any man- ner, the power of a testator in the disposition of his real estate by a last will and testament ; nor to prevent any trust from arising, or being extinguished by implication or operation of law ; nor to prevent, after a fine shall have been levied, the execution of a deed or other instru- ment in writing, declaring the uses of such fine." 3 E. S. 220, § 7, 5th ed. "Every contract for the leasing for a longer period than one year, or for the sale of any lands or any interest in lands shall be void, unless the contract or some note or memorandum thereof, expressing the consideration be in writing, and be subscribed by the party by whom the lease or sale is to be made." 3 E. S. 220, § 8, 5th ed. " Every instrument required to be subscribed by any party imder the last preceding section may be subscribed by the agent of such party lawfully authorized." 3 R. S. 221, § 9, 5th ed. The title to lands may be transferred from one person to another by operation of law, as where the lands of a deceased person descend to his heir at law. So trusts may arise by operation or implication of law. And lands may be devised by last will and testament, which need not be under seal. But the general rule is, that there cannot be a transfer STATUTE OF FRAUDS. 275 Sale of an interest in landy, etc. of the title to real estate by way of sale, unless it be by a deed or other couveyance in writing, and under seal. There is, however, a distinction between an actual conveyance of the land and an executory agreement to convey it. A mere executory agreement to convey must be in writing, but it need not be under seal. So there is also a distinction between the authority of an agent to convey lands, and his authority to make an executory agreement for such sale. The authority of an agent to sell and convey lands must be in writing. Ante, 274, § 6. But an authority to make an executory agreement of sale, or for making any other execu- tory agreement by an agent, in relation to lands, need not be in writing. Ante, 274, § 9 ; Lawrence v. Taylor, 5 Hill, 113. The agreement itself for the sale or transfer of lands, or of an in- terest therein, must be in writing, although the agent of the contract- ing parties need not be authorized in writing to act as such agent in making the contract. Newton v. Bronson, 13 N. Y. 587 ; Worrall v. Munn, 6 id. 229 j Coleman v. Oarrigues, 18 Barb. 60; Pringle v. Spaulding, 53 id. 17 ; Moody v. Smith, 70 IS". Y. 598 ; Briggs v. Par- tridge, 64 id. 357, 364. An authority to sell, given to one who is a real estate broker, authorizes him to sign the contract and bind his prin- cipal. Pringle v. Sjpaulding, 53 Barb. 17; Haydock v. Stow, 40 N. Y. 363. The authority of an agent to sell lands may be established by parol and it will be inferred where the principal adopts the act of the agent. Pringle v. Spaulding, 53 Barb. 17. A contract which is made by an agent without any authority may be subsequently ratified by the principal, and it will then become binding upon him. If the authority of the agent would have been valid without writing, the ratification will be valid without writing. Worrall v. Murm, 5 JST. Y. 229, 240-246. And if the authority of the agent ought to be in writing and under seal, then the ratification must be under seal. Newton v. Bronson, 13 "N". Y. 587. As has been stated in a preceding chapter, an executory contract under seal, executed by an agent in his own name for an un- disclosed principal, cannot be enforced against the latter on proof of parol authority of the agent to enter into the contract, and of the agency, at least in the absence of proof of ratification by the principal. Briggs V. Partridge, 64 N. Y. 357; S. C, 21 Am. Rep. 617. But this does not result from the operation of the statute of frauds, as that statute does not apply to the contract of the vendee, but only to the contract of the party by whom the sale is to be made, or his agent lawfully au- thorized. The vendee's contract need not be in writing. lb.; McCrea V. Purmort, 16 Wend. 469. See am,t6 274. An unsealed power of attorney will authorize the attorney to seU 276 STATUTE OF FEAUPS. Sale of an interest in lands, etc. lands, but not to make a conveyance. Watson v. Shermcm, 84 111. 263. Where the parties intend to transfer the title to lands by the instru- ment made, or where the agreement is an executory one for a future conveyance of lands, there is generally no question made whether the contract relates to an interest in lands. But there are many cases in which parties cannot agree upon the question whether the particular agreement which they have made relates to an interest in lands. The difficulty arises from the fact that the parties disagree upon the point whether the subject-matter of the agreement is an interest in real estate. The interest of a person who purchases a pew in a church, although it is a limited and qualified estate, is an interest in real estate, and the contract must be in wi'iting to be valid. In one case pews were sold at auction according to a plan of a church, which had not then been built, and the plans showed the location and the number of the pews, and there was a written or printed paper exhibited, showing ■the conditions of the sale. The defendant bid off one of the pews at a specified price, which was written upon the plan together with the name of the bidder, by a person who acted as clerk of the auctioneer. 'The bidder refused to accept a deed of the pew, and to pay the price which he had bid at the sale, and it was held that the contract of sale was not binding upon him, because such a memorandum, to be valid, must contain every thing necessary to show the contract between the parties, so that there need not be any parol proof to explain the inten- tion of the parties or the terms of the agreement ; and it was held that the conditions of the sale did not constitute a part of the memorandum made, that the memorandum did not show that a pew was sold, nor the names of the parties, nor the terms or time of payment ; and that the agreement was therefore void. First Baptist Church v. Bigelow, 16 Wend. 28. And see Wright v. Weehs, 25 N. T. 153. In another case the defendant agreed to purchase a pew in a church, and he gave his promissory note for the amount agreed upon as the purchase-price. The bargain was verbal on the part of the defendant. The entire agreement on the part of the trustees who sold the pew was printed, and the names of the trustees were printed at the end of the agreement, and not subscribed in writing. This agreement certified that the defendant had purchased a certain pew, giving the number of it, and that the defendant would be entitled to a deed on payment of the promissory note given therefor. It was held that the sale of a pew in a church is a sale of an interest in real estate ; that the memorandum of such sale must show the consideration of such sale ; that the agree- ment must be subscribed by the vendors at the end of the agreement ; and STATUTE OF FRAUDS. 277 Sale of an interest in lands, etc. that a printed signature like the one employed was not a valid signature by the trustees ; that such signatures must be in writing or they will be void; and that, therefore, there was no consideration for the promissory note given by the defendant, and that no action could be maintained upon it. Vielie v. Osgood, 8 Barb. 1J30. An agreement for a lease of a pew in a church for a term longer than for one year must also be in writing or it will not be binding. ^ The trustees of a religious society, incorporated under the general act relative to the incorporation of re- ligious societies, have no power to execute an absolute deed of a pew in a church, in fee, without ' reserving any rent. Yielie v. Osgood, 8 Barb. 130. The interest in a pew is separate from the fee, and a pew may be leased and held distinct from the fee. WoodMorth v. Payne, 74 N. Y. 196. Where a purchaser under a foreclosure sale undertakes to purchase for the benefit of the mortgagor, and thus acquires the title at a price greatly below its value, he will be deemed the trustee of the party for whom he has undertaken the purchase, and, on a tender to him of the purchase-money and interest, he will be compelled to convey the prop- erty to the party equitably entitled. Ryan v. Dox, 34 N. T. 307. It is no objection that the agreement by which he undertook to pur- chase for the benefit of the owner of the equity of redemption was not in writing. The law makes him a trustee ex Tnalefido. lb. And see Bowery Nat. Bank v. Dunoan, 12 Hun, 405 ; Church v. Kidd, 3 id. 254; S. C, 5 T. & C. 454; Morrill v. Cooper, 65 Barb. 512; Trap- hagen v. Bv/rt, 67 N. T. 30. But see Wheeler v. Reynolds, 66 id. 227. A. made a verbal agreement with B. for the purchase of certain lands owned by the latter, and the purchase-price which he was to pay was $8,000. C. desired to purchase the same lands, and he made a verbal agreement with A. for their purchase, at the price of $8,250, free from all liens or incumbrances. 0. paid the purchase-money as follows : $8,000 to B. and $250 to A. By agreement of the parties, B. deeded the lands directly to C, instead of deeding them to A., and then A. deeding to 0. At the time of this agreement between C. and A., and at the time of the execution of the deed from B. to C, there was an incumbrance of $152.24 on the lands, which C. was compelled to pay. And C. then brought an action against A. to recover the amount paid ; but it was held that the agreement was void because not in writing, and that no action would lie. Baldwin v. Pahner, 10 N. Y. 232. A party to a contract, void by the statute of frauds, who has voluntarily performed a part of it, cannot therefore be compelled to 278 STATUTE OF FRAUDS. Sale of an interest in lands, etc. perform the residue, and this is so although he has performed all that part of the contract which is within the statute, and the residue, upon which the action was brought, was void only from its connection with the part already performed. lb. And see Ehle v. Judson, 24 Wend. 97. After a sale of A.'s land to B., upon an execution, and before the sheriff had executed a deed to the purchaser, it was verbally agreed by C. with A. and B. that C. should take the land of B., the purchaser at the sherifE's sale, and that 0. should pay $600 to A., of which sum C. paid $200, as agreed, and the sheriff executed a deed of the land to B., who conveyed it to C, and the latter afterward sold a part of the laud for $600. In an action by A. against C. to recover the $400 unpaid, it was held that the agreement was void by the statute, and that no ac- tion could be maintained. VanAlstine v. Wimple, 5 Cow. 162. But, besides this objection, there is another which is insurmountable, for intermediate the sale on the execution and the delivery of the deed to the purchaser, though the naked fee remains in the debtor, yet this is not an interest of any value, and therefore it is no consideration for a promise. lb. Where land has been sold by loan officers for the amount due on the mortgage, the property of the owner is altogether divested ; and he cannot, afterward, compel the purchaser to reconvey the land to him, on repaying the purchase-money; and where there has been a previous agreement between the owner and the purchaser, the latter cannot be deemed to have purchased as a trustee for the owner ; and if there were a parol agreement to that effect, it would still be void by the statute of frauds ; and, therefore, where the owner of lands sold by loan officers paid the purchaser a sum of money to release his interest, which was done, he cannot maintain an action for money had and received, to re- cover it back as received unconsciously, whether there were a previous parol agreement or not, in relation to the subject. Sherrill v. Crosby, 14 Johns. 368. A verbal agreement between A. and B., whereby A. is to cut the wood and brush upon the land of B., and to heap the brush, for the wood, A. being allowed until the ensuing winter to draw the wood away by sleighing, is within the statute of frauds, and void as an agreement, although it may operate as a license, which is revocable at any time. Bennett v. Soutt, 18 Barb. 347. Though a parol contract to grant an easement in land is void, yet in certain cases the agreement will be upheld as a -license. Cayuga, Railway Co. v. Niles, 13 Hun, 170. Where, under a parol contract for the sale of land, the vendee, with the consent of the vendor, in pursuance of the terms of the contract, enters into possession and puts in crops, the invalidity of the contract STATUTE OF FEATJDS. 279 Sale of an interest in lands, etc. to sell and convey does not afEect tlie vendee's title to the crops ; and if the vendor refuses to perform and ejects the vendee, the title of the latter to the crops is not thereby divested. In such case the crops, as between the parties, are not a part of the realty, but chattels. Rarrin v. Friiik, 49 N. Y. 2i; S. 0., 10 Am. Eep. 318. The statute of frauds cannot be invoked by the party who refuses to perform, as against one not in default, for the purpose of invalidating that part of the contract which has been executed, and the latter cannot be compelled to relin- quish any benefit he has acquired from its partial performance. lb. And see Dame v. Dame, 38 N. H. 429 ; LamcasUr v. Eve, 5 C. B. (N. S.) T27 ; Fates v. MuUin, 23 Ind. 562 ; Wood v. EeweU, 8 Ad. & El. (iSl. S.) 913. An agreement for the sale of growing trees, with the right to enter on the land at a future time and remove them is a contract for the sale of an in- terest in the lands, and to be valid must be in writing. Vorehech v. Jioe, 50 Barb. 302 ; Goodyear v. Vosburgh, 57 id. 243 ; S. C, 89 How. 377 ; KiUm.oreY. Howlett, 48 N. Y. 569 ; Warren v. Zeland, 2 Barb. 613 ; Breen v. Armstrong, 1 Denio, 550. The distinction, on this subject, is between growing trees, fruit or grass, and other natural products of the earth, on one hand, and growing crops of grain, and other annual pro- ductions raised by cultivation of the earth and the industry of man, on the other. The former are parcel of the land, and a contract in writing is required to make a valid transfer ; the latter are personal chattels, and not within the statute. lb. In an action by a landlord against a tenant for waste in cutting down trees, evidence of a parol consent that the tenant might cut the trees down and have the wood on condition that the tenant would clear and seed down the land where the trees were cut, is not admissible, such consent being a mere license, and requiring a writing to give it validity. MoOregor v. Brown, 10 N. Y. 114. Growing trees, fruit and grass, being parcel of the land, are within the statute of frauds ; and, until severed from the land, either actually or in contemplation of law, they cannot be conveyed, or contracted to be conveyed, by parol, nor taken in execution as chattels. Banh of Lansinghv/rgh v. Crary, 1 Barb. 542 ; Wa^^en v. Zeland, 2 id. 613 ; SU/vernail v. Cole, 12 id. 685 ; Pierrejaont v. Ba/rna/rd, 5 id. 364 ; S. 0., 6 N. Y. 279. An agreement between two persons that one of them shall labor for the other, and that such labor shall be paid for in land, is void as to the land, even though the services are fully per- formed. King v. Brown, 2 Hill, 485 ; Lish v. Sherman, 25 Barb. 433 ; Burlvngame v. Burlvngame, 7 Cow. 92 ; Oarnipbell v. Gam,pbell, 65 Barb. 639. See Moody v. Smith, 70 IST. Y. 598. 280 STATUTE OF FEATJDS. Sale of an intereat in lands, etc. The plaintiff aided the defendant in negotiating the purchase of land, under a parol agreement that he should be compensated for his services by a permanent lease of the land, at an annual rent of eight per cent upon the purchase-price ; this agreement was held to be void under the statute. Erlen v. Lorilla/rd, 19 N. Y. 299. In such cases the value of the land cannot be shown for the purpose of determining the amount which the person is entitled to recover for his services, because the measure of damages is limited to the value of the services and not the value of the land. lb. The cases of King v. Brown, 2 Hill, 485, and Burlingams v. Burlingame, 7 Cow. 92, are overruled so far as they hold that the value of the land is the measure of damages. lb. Where there is a verbal agreement to sell land, and the purchaser pays a part or all of the purchase-money, he cannot recover it back from the vendor, if he is willing to convey the lands as he agreed. The agreemedt is void in the sense that the purchaser could not be compelled to pay the purchase-price ; but if he voluntarily pays the money, the contract though invalid is not illegal, and therefore the purchaser cannot maintain an action to recover back th,e money paid. Abbott V. Draper, 4c Denio, 51 ; Battle v. Rochester City BanTe, 5 Barb. 414; S. C, 3 N. Y. 88 ; Collier v. Coates, 17 Barb. 471; Goelthv. White, 35 id. 76. But if the vendor in such a case refuses to convey the lands as he agreed, or if he rescinds the agreement in pursuance of a right reserved in a written contract of sale, then the purchaser may recover back the money which he has advanced upon the contract. Utter V. Stewart, 30 Barb. 20; Lawrence v. Taylor, 5 HiW, 107; Wood V. Shultis, 4 Hun, 309 ; S. C, 6 Sup. Ct (T. & 0.) 567 ; Morris v. I'rink, 49 F. Y. 24 ; S. C, 10 Am. Eep. 318. And where, subsequent to the execution of a contract for the sale of lands, the vendor agrees by parol that the purchase-price may be paid by the vendee in work and labor, and where, after the performance of the work and labor, the vendor refuses or is unable to perform, an action may be maintained against him to recover the value of the work and labor. In such case the statute of frauds has no application. Moody V. 8mith,lQ ]Sr. Y. 598 ; Busford v. Pearson, 9 Allen, 387. So where the seller is guilty of false representations as to the nature of the property, and of the incumbrances upon it, and the purchaser has paid a part of the purchase-money upon the faith of these repre- sentations, he may recover it back, notwithstanding the seller is willing to convey his interest in the premises. Fraud as to a material fact, in such cases, is sufBcient to entitle the purchaser to recover his monev, STATUTE OF FEAUDS. 281 Sale of an interest in lands, etc. although there could not be such a recovery in the absence of such fraud. HeU/man v. Strauss, 2 Hilt. 9. Where a party, by a fraudu- lent representation that he was the owner of land, induced another to bestow labor upon it, in the expectation of enjoying the property as joint owner, the latter, on discovering the fraud, may abandon the contract under which the labor was performed, and recover the value of the work done, although the agreement is a verbal one. Riokwrd v. Slwn- ton, 16 Wend. 25. An agreement to exchange lands is as much within the statute as an agreement to sell them, and it is governed by the same rules of law. Hice v. Peet, 15 Johns. 503. A part performance of a parol agreement for the sale of lands does not render the agree- ment binding and valid, so as to entitle the other party to compel a completion of the performance of the contract. Baldwin v. Palmer, 10 N. T. 232. And see Thomas v. Dickson, 12 id. 364 ; Malins v. Brown, 4 id. 403. Though it has been seen that the money paid can- not be recovered back if the vendor is willing and able to perform. Ante, 280. A surrender of an interest in lands must be in writing, except in the cases specified by the statute. The manner in which a tenant may surrender his lease, or his interest in an unexpired term, has been already explained. YoL I, 359. Dower, before assignment, Lothrop v. Foster, 51 Me. 36Y ; Finch v. Finch, 10 Ohio St. 501; a mining claim, Copper, etc., Co. v. Spen- cer, 25 Cal. 18 ; coal and the rights to dig coal, Lar v. ChouteoAi, 23 111. 39, are interests in lands within the statute. A pre-emption right is not a mere chattel interest, but requires a writing to prove the trans- fer, and descends to the heir. Lester v. White, 44 id. 464. And a permanent right to flow land by the erection and maintenance of a mill- dam cannot be created by parol. Chite v. Carr, 20 Wis. 531. And see Bindge v. BaUr, 67 JST. Y. 209; S. C, 15 Am. Eep. 475. So an agreement to procure a transfer of an unexpired term of a lease is a contract for the sale of an interest in lands, and must, in order to be binding, be in writing. Guest v. Worcester, etc., Bailway Co., L. R., 5 C. P. 9. A verbal contract for the severance of a house from the realty is within the prohibition of the statute, Hogsett v. Fllis, 17 Mich. 351; and bo, of fixtures. Vaughan v. Hancoch, 3 C. B. 766. Wild grass growing on wild, unoccupied, uncultivated land is a part of the realty, and cannot be transferred by parol agreement, and where such grass has been destroyed by the cattle of a third person, the owner of the land only, and not the person to whom such grass was so at- 36 282 STATUTE OF FEAUDS. Sale of an interest in lands, etc. tempted to be transferred, can maintain an action for its destruction. Powers V. OlarTcson, 17 Kans. 218. So one in possession of a farm under an agreement with the owner to work it on shares, for a single crop, cannot maintain an action of trespass against another for break- ing and entering the close. Decker v. Decker, 17 Hun, 13. A sheriff's sale of land made under an execution is within the statute of frauds, and, without a proper entry or memorandum in writing, the purchaser will not be bound. Evams v. AsUey, 8 Mo. 177 ; Christie r. Sim,pson, 1 Rich. (S. C.) 407 ; Robinson v. Garth, 6 Ala. 204. But see Nichol v. Ridley, 5 Terg. (Tenn.) 63 ; Warfield v. Dorsey, 39 Md. 299 ; S. C, 17 Am. Eep. 562. So, a verbal agreement that sub- sequent advances shall constitute a lien on land already conveyed as a security for former loans is within the statute and void. O'Neill v. Oajpelle, 62 Mo. 202. So a parol agreement whereby a man who had conveyed land to his wife, reserving to himself by written contract the right of possession and to re-purchase within five years, bargains to give up his right under such contract, is void under the statute. Grover v. Buck, 34 Mich. 519. So an oral agreement to convey land and to take a monument when finished at a certain price, and the balance in money is within the statute, and a tender of the finished monument with the money will not give a right of action for the value of the monument, or for the labor of completing it. Dowlvng v. MoKenny, 124 Mass. 478. And a promise that, in consideration that the plaintiff would erect certain buildings upon the land he should have it, has been held to be void as within the statute of frauds. Smith v. Smith, 4 Dutch. (N. J.) 208. But see contra. Burton v. Duffield, 2 Bates' (Del.) Ch. 130. A tenant in common, in possession, cannot sell by parol to his co-tenant in possession so as to pass title. Hill v. Meyers, 43 Penn. St. 170. Where an interest in lands is contracted for, unless it is in the cases excepted by the statute, the agreement must be reduced to writing, and it must be subscribed by the person who agrees to transfer such interest. Ante, 'i^lii, §§ 6, 8. The term " subscribe " means that the person sub- scribing such agreement shall write his name underneath or at the end of the agreement- Davis v. Shields, 26 Wend. 341 ; Jamies v. Patten, 6 N. Y. 9, 16. The statute is express that the agreement shall be sub- scribed by the person by whom the interest is to be transferred. And where a pew was sold by the trustees of a church, but there was no written subscribed agreement on their part, it was held that an action could not be maintained by them on a promissory note which was STATUTE OF FEAUDS. 283 Salu of an interest in lands, etc. given by the purchaser. Ante, 276. Vielie v. Osgood, 8 Barb. 130. And SQQ First Baptist Church v. Bigelow, 16 Wend. 28. Where printed conditions of sale are used in such cases, and the names of the trustees are printed at the end of such conditions, this will not be a compliance with the statute, which requires a written manual signature of the names underneath or at tlie end of the writ- ing. Yielie v. Osgood, 8 Barb. 130. If the contract is subscribed by the person by whom the interest is to be transferred, it will be suffi- cient to bind him, although the agreement of the purchaser is merely verbal. National Fire Ins. Co. v. Loomis, 11 Paige, 431 ; Edwards V. Farmers' Fire Ins. Co., 21 Wend. 467 ; S. C, 26 id. 541 ; MoGrea v. Furmo-rt, 16 id. 460. If the contract is subscribed by the purchaser but not by the vendor, the statute will not be complied with, because it in express terms de- clares that the agreement shall be void unless it is subscribed by the person by whom the sale is to be made. Ante, 274, § 8 ; Vielie v. Os- good, 8 Barb. 130 ; Champlin v. Parish, 11 Paige, 406. If the contract, in such case, is not binding upon the vendor, there would not be any mutuality of consideration, and it would not be bind- ing upon the purchaser for that reason. Townsend v. Hubbard, 4 Hill, 351 ; Mg Whorter v. MoMahon, 10 Paige, 386 ; Champlin v. Parish, 11 id. 406. As the law stood before the Revised Statutes, it was sufficient if the contract was signed by the party to be charged thereby. First Baptist Church v. Bigelow, 16 Wend. 30. But as the law now stands, the contract must be subscribed by the party by whom the sale is to be made. Ante, 274, § 8. This rule applies to contracts for the sale of real estate, or for the sale or transfer of some interest therein. Though in those cases which relate to the sale of personal chattels, the contract is sufficient if it is subscribed by the party to be charged therewith. 3 E. S. 221, § 2, 5th ed. The consideration of the agreement must be expressed in the writing, or the agreement will be void. Ante, 274, § 8. The names of the parties, a description of the property sold, the sum to be paid, the time and manner of payment, and all the other terms of the agreement, must be expressed in the writing, so that no parol evidence will be necessary to show what the contract is, and so that it may show on its face that it is a valid contract. Williams v. Lake, 2 Ell. & E. 349. An omission to state the terms and conditions, and the consideration, etc., will render the contract void. Vielie v. Osgood, 8 Barb. 130 ; First Baptist Church v. Bigelow, 16 Wend. 28. This memorandum need not be subscribed by the parties in person, 284 STATUTE OF FRAUDS. Agreements not within the statute. it will be equally valid, if subscribed by an agent duly authorized for that purpose. Ante, 274, § 9. An auctioneer who sells lands at public auction is an agent within the meaning of the statute, for the purpose of making a valid memorandimi. The owner of several lots of land which he wished to have sold, wrote a letter to the auctioneer, stating the terms of sale. At the time of making the sales, the auctioneer read the terms of sale to the bidders from this letter, which was at that time pinned in his sale-book, and also made the other necessary entries in his sale-book, to make a proper and sufficient memorandum if the letter was to be considered a part of the entry, and then subscribed his name to such memorandum ; it was held, that the letter was a part of the memorandum, and that the contract was valid. Talhnan v. FrcmkUn, 14 JSr. Y. 584 ; overruling S. C, 3 Duer, 395. Where the name of the principal is stated in the body of the memorandum, that is sufficient, although the auctioneer subscribes his own name merely, without any reference to his principal. Pinchney V. Hagadorn, 1 Duer, 89 ; Tallman v. FrankUn, 14 N. T. 584 ; Dyher v. Townsend, 24 id. 57. A sale of lands by an auctioneer at public auction is a mere agree- ment to convey the land by deed at a subsequent time ; and such agreements need not be under seal ; and, for that reason, the authority of the agent need not be in writing, nor under seal. Ante, 274, § 9. So, for the same reason, the contract is valid, if subscribed by the agent in his own name, if the contract shows that it is made for his principal'. § 5. Agreements not within the statute. There are numerous cases which relate to land, and to things growing upon it, which are not within the statute. A sale of crops of any kind which are raised by annual cultivation, such as wheat, corn, rye, oats, barley, potatoes and the Hke, is not a sale of an interest in lands, although the crops are growing at the time of the sale ; and such agreement need not, there- fore, be reduced to writing, so far as it is affected by the statute relat- ing to a sale of an interest in lands. Austin v. Sawyer, 9 Cbw. 39 ; Whipple V. Foot, 2 Johns. 418, 422 ; Stewart v. Doughty, 9 id. 112. And see ante, 279 ; Green v. Arms'brong, 1 Denio, 550. A mortgagor of real estate released the equity of redemption to the mortgagee, who agreed in consideration thereof to sell the mortgaged premises, and that, after deducting the amount due to himself, he would pay the surplus of such sale to the mortgagor ; this agreement is not void by the statute ; and after a sale of such premises for more money than enough to pay the debt due to the mortgagee, an action will lie by the mortgagor to recover the surplus. Hess v. Fox, 10 STATUTE OF FKAUDS. 285 Agreemeuts not within the statute. Wend. 436. Such an action lies immediately after the sale ; and it is no defense that the mortgagee sold the land on credit, and therefore has not received the funds to pay with. lb. The action in such a case is not founded upon a verbal sale of an interest in lands, nor upon a ver- bal promise to purchase lands, or an interest therein ; and it would lie without any such agreement if there had been a foreclosure and sale of the lands and a sm-plua remained in the hands of the mortgagee. It is analogous to those cases in which lands are conveyed in pursuance of a verbal agreement and in which the purchaser accepts the deed ; in such case he will be compelled to pay the purchase-money, although the agreement on his part was not in writing. By accepting the deed the whole contract is performed, except the payment of money, which may be compelled by an action at law. Thomas v. Dickinson^ 12 IT. Y. 364 ; Amhler v. Owen, 19 Barb. 145 ; Skephard v. Little, 14 Johns. 210; Bowen v. Bell, 20 id. 338. Where lands which are subject to the lien of a bond and mortgage are conveyed, and the purchaser agrees to pay such bond and mortgage as a part of the consideration money of his purchase, this agreement though merely verbal, is valid and binding, and the party holding such bond and mortgage may maintain an action against the purchaser npon the bond and recover the sum due thereon. Ely v. McNight, 30 How. 97 ; Murray v. Smith, 1 Duer, 412. A verbal agreement to open a road to its original width, by removing the fences, is not within the statute and it is valid. Storms v. Snyder, 10 Johns. 109. Where a highway is laid out in pursuance of the statute the consent of the owner of the land that the road may be laid through his land is vaM although such consent is merely verbal. Noyes v- Oha^in, 6 Wend. 461 ; People v. Goodwin, 5 N. T. 568 ; Baker v. Bramam,, 6 Hill, 47. Such consent, however, is revocable at any time before the road is laid out, and a sale and conveyance of the land in good faith before the laying out of the road revokes the verbal consent. People V. Ooodwvn, 5 N.Y.568. If the road is laid out in pursuance of such verbal consent the owner of the land may maintain an action to recover the damages which are assessed for the injury to his land, or for the value of the land taken and used for such highway. Baker v. Braman, 6 Hill, 47 ; Noyes v. Chapvn, 6 Wend. 461. The consent that the land may be used as a highway relates to an interest in lands, but it is one of those cases in which the statute permits a verbal consent, and the case is therefore one of those excepted by the statute of frauds, viz., the transfer is by operation of law ; but the statute relating to highways is 286 STATUTE OF FRAUDS. Agreements not within the statute. a suificient authority to render a verbal consent valid, and to exclude it from the operation of the statute of frauds. A parol agreement between the owners of adjoining lands that one of them will for an adequate consideration erect and keep up the division fences between them is not within the statute of frauds which renders void an agreement not to be performed within a year ; nor within the statute relating to the conveyance of lands or of an interest in them. Talmadge v. Rensselaer, etc., M. M. Co., 13 Barb. 493 ; Adams v. Van Alstyne, 25 N. Y. 232 ; S. C. 35 Barb. 9. An oral agreement to marry and pay the then existing debts of the proposed husband in consideration that he convey to the proposed wife certain premises of which he is the owner, if f uUy performed by the wife is valid and binding in equity upon the husband ; and a conveyance made to her of the premises in pursuance thereof is upon a good and suificient consideration. Dygart v. Semerschnider, 32 N. Y. 629. So a promissory note given by a man to a woman in consideration of her promise to marry him, which promise is afterward performed, is for a good consideration, and is valid under the statute of frauds. Wright v. Wright, 69 Barb. 505 ; S. C. Affir., 54 N. Y. 437. And an action may be maintained thereon by the wife against her husband. lb. But where a man agrees by parol to give a woman certain property in consideration of her marrying him, the subsequent marriage is not such a partial per- formance of the contract as will induce a court of equity to compel a spe- cific performance thereof. Brown Y.Conger,% Hun, 625. The provision of the statute (Laws of 1 849, chap. 37, § 3) that " all contracts made between persons in contemplation of marriage shall remain m full force after such marriage takes place," was not intended to repeal the provisions of the statute of frauds declaring that every agreement made upon con- sideration of marriage shall be void, unless it be in writing. lb. And see Finch v. Finch, 10 Ohio St. 501 ; Flennerx. Flenner, 29 Ind. 564; Caton V. Caton, L. E. 1 Ch, App. 137. A husband and wife, having orally agreed before marriage that the survivor, after marriage, should not claim any of the estate left by the decedent, it was held, in an action by the widow against the husband's administrator to recover the statutory allowance to a widow out of a deceased husband's estate, that the agreement was not within the stat- ute of frauds so far as it relates to provisions in consideration of mar- riage, but otherwise as to the provisions of the statute relating to sales of real estate ; but that the agreement not being severable, could not be enforced against the widow. Rainlolt v. East, 56 Ind. 538 ; S. C, 26 Am. Eep. 40. See Dow v. Way, 64 Barb. 255. STATUTE OF FKAUDS. 287 Leasee for one year. § 6. Leases for one year. An agreenient for the leasing of real estate for a term longer than one year miist be reduced to writing and be subscribed by the party by whom the lease is made, or it will be void. Ante, 274, § 8 ; Prindley. Anderson, 19 Wend. 391 ; Cleves v. WiUougfiby, 7 Hill, 83. The statute requires that the consideration of the lease shall be ex- pressed in the agreement. Ante, 274, § 8. The agreement of the land- lord to let the premises, and the promise of the tenant to occupy and pay the rent agreed, is a sufficient statement of the consideration. It was held, in one case, that a lease for a single year was void, where the term was to commence at a future day. Croswell v. Crane, 7 Barb. 191. That case, however, has been expressly overruled by the Court of Appeals ; and it is now conclusively settled that a mere ver- bal or oral lease for on« year is valid, although the term is not to com- mence until a future day. Young v. Dake, 5 N. T. 463 ; Taggard v. Roosevelt, 8 How. 141. In Young v. Dake, the agreement was made on the 11th day of September, 1848, for the letting of the premises for the term of one year, from the 1st day of April, 1849, and this lease was held valid. It was also held that the statute which requires a written agreement in those cases which, by their terms, are not to be performed within one year, relates entirely to contracts for the sale of personal property, per- sonal services, etc., and not to leases of real estate. In Taggard v. Roosevelt, above cited, the lease was oral, and was made in March, 1851, for one year from the 1st of May, 1851, and this was held valid. When a lease is void by reason of the provisions of this statute, that does not render the contract an illegal or unlawful one if the parties choose to perform it. If the lease is verbal, and the term is for a longer time than one year, it is void in the sense that neither party can compel the other to perform it. The landlord need not, in such a case, give the tenant possession of the premises if he chooses not to do so ; and no action will lie by the tenant for the refusal. So on the other hand the tenant may refuse to accept the possession of the premises, and no action will lie by the landlord against the tenant in consequence thereof. The parties may, however, go on and perform the agreement although they could not be com- pelled to do so. And, in such case, if the tenant goes into possession of the demised premises and occupies them, he will then be bound to perform the agreement, by paying the rent agreed, for such time as he may remain in possession, in the same manner as though the lease had 288 STATUTE OF FRAUDS. Fraudulent sale, assignments, judgments, etc. been reduced to writing. Schuyler v. Leggett, 2 Cow. 660. And during the time wliich the tenant occupies the premises under the terms of such parol agreement, he will be bound to perform the terms of it upon his own part. ' Merely reducing the agreement to writing will not be a compliance with the statute, unless it is subscribed by the party by whom the lease is made, or by his legally authorized agent. GhamjpUn v. Parish, 11 Paige, 406. § Y. Fraudulent sale, assignments, judgments, etc. In sales and transfers of property, the law may regard them as fraudulent in reference to the rights of creditors, for either of two causes : first, the transaction may be void on account of an actual and fraudulent intent in the disposition of the property ; or, second, because the instrument which conveys the property, or the manner of conveying it, may be in contravention of the settled policy of the law, or of some of its rules. The law does not attach any importance to the form of the coavey- ance by which a fraudulent disposition of property is made. A bill of sale, chattel mortgage, assignment, or a judgment fraudulently con- fessed, or permitted to be recovered, will be treated as nullities, when- ever it is established that they are founded in fraud, and the rights of creditors are thus impaired or destroyed. The statute is as follows : "All deeds of gift, all conveyances and all transfers or assignments, verbal or written, of goods, chattels, or things in action, made in trust for the use of the person -making the same, shall be void as against the cred- itors, existing or subsequent, of such person." '3 K S. 221, § 1, 5th ed. " Every conveyance or assignment, in writing, or otherwise, of any estate, or interest in lands, or in goods or things in action, or of anv rents or profits issuing therefrom, and every charge upon lands, goods, or things in action, or upon the rents or profits thereof, made with the intent to hinder, delay or defraud creditors or other persons of their law- ful suits, damages, forfeitures, debts or demands, and every bond or other evidence of debt given, suit commenced, decree or judgment suffered, with the like intent, as against the persons so hindered, delayed, or defrauded, shall be void." 3 E. S. 224, § 1, 5th ed. The statute which relates to chattel mortgages has been already quoted. Vol. I, 308, 316. If a chattel mortgage is executed in compliance with the requirements of that statute, as to the delivery of the property, and as to filing the mortgage properly, etc., such mortgage will nevertheless be absolutely void, if it was made for the purpose, and with the intent, to hinder, delay or defraud the creditors of the mortgagor. The provisions of the statute referred to were intended to apply to such mortgages as were STATUTE OF FEAUDS. 289 Fraudulent sale, assignments, judgments, etc. made Id good faith, and for a lawful purpose, and with a view to the protection of subsequent purchasers or mortgagees in good faith, of the same property, from the same mortgagor. But where the mort- gage is intended as a fraud upon the rights of creditors, no form, how- ever solemn, and no ceremony, however formal, will prevent the law from declaring it fraudulent, if proper evidence of such fraud is given. In relation to chattel mortgages, as affected by the statute, one result of a neglect of its provisions will be to allow the creditors of the mortgagor to take the property upon execution, even when the mort- gage was given in good faith and for full value ; and so it may be held by subsequent hona fide purchasers or mortgagees, under similar cir- cumstances. The provisions of the statute quoted in this chapter relate exclusively to those cases in which the disposition of the prop- erty is made with an actual fraudulent intent for the purpose of hin- dering, delaying or defrauding the creditors of such vendor, etc. ; and they relate to every species of property, whether real estate, personal property, or things in action ; and so on the other hand, they relate to every form or species of conveyance by which the title to property can be transferred. In a work of this character, however, no notice need be taken of tlie law so far as it relates to real estate, since a justice's court has no jurisdiction whatever in relation to it. Every bill of sale which is made with an intent to hinder, delay or defraud creditors will be absolutely void, notwithstanding a change of. the possession of the property. The same rule applies to judgments and executions which are fraudulently employed for the same purpose ; and so of fraudulent assignments. The law permits an insolvent debtor to make an assign- ment of his property for the payment of his creditors; and it even permits him to prefer some creditors, by paying them to the exclusion of others ; but such assignment must be made in entire good faith, and for the sole purpose of paying just debts. Such assignments are merely tolerated ; they are not favored nor encouraged by the law, and they wiU not be sustained, when it can be established that they were made for the purpose of hindering, delaying or defrauding creditors. But there are numerous cases in which an assignment may have been made without any actual fraudulent intent, and yet it will not be sus- tained, because some of the provisions of the assignment violate some principle of public policy, or contravene some established rule of law. A good illustration of the principle is seen in the case of chattel mortgages which may have been made in good faith and yet have been held invalid, because not filed, or because no transfer was made of the possession of the mortgaged property. Vol. I, 308. So there are many 37 290 STATUTE OF FRAUDS. Fraudulent sale, assignmenta, judgments, etc. cases in which a debtor has made an assignment with an intention that his property should go as far as possible toward the payment of his just debts, and yet some of the provisions which were inserted in the assignment for that purpose have been held to be fatal to the validity of the instrument. An assignment may be void for something which appears on the face of the instrument, or for some reason extrinsic, and which relates to the intention with which it was made. A fraudu- lent intention, in fact, is always fatal to its validity, however fair it may appear upon its face. Although an assignment is fair and lawful upon its face, yet if the purpose of the assignor, as shown by extrinsic evidence, was to efEect a compromise with creditors and pro- cure releases by having the proceeds of the assigned property divided among those who would release him, the assignment is void. Bennett v. Mlison, 23 Minn. 242 ; Francis v. Hers, 55 Ga. 249 ; Whii/ney v. Kelly, 67 Me. 377. When an assignment is impeached as being fraudu- lent upon its face, the question is whether the provisions of the in- strument are such that, when carried out, according to their apparent and reasonable intent, they will be fraxidulent in their operation. Fraud cannot be presumed where the instrument admits a contrary construction. Kellogg v. Slawson, 15 Barb. 56 ; S. C, 11 N". Y. 302 ; Brigham v. Tillinghast, 15 Barb. 618 ; Manny. WiibecTc, 17 id. 388; Jacobs V. Allen, 18 id. 549 ; Bank of Silver Creek v. Talcott, 22 id. 550. An assignment made by a debtor of his property, with the fraudulent intent to hinder, delay and defraud his creditors, is void, although his assignees are free from all imputation of participating in his fraudulent designs, and they are themselves tona fide cred- itors of the assignor, and are to take the entire avails of the assigned property to pay their preferred debts. EatKbun v. Platmsr, 18 Barb. 272 ; Wilson v. Forsyth, 24 id. 106 ; Griffin v. Marquardt, 17 N. Y. 28 ; Young v. Heermans, 66 id. 374. But a mortgagee who takes a mortgage of personal property from his debtor to secure his debt in good faith, and without any notice of an improper design on the part of the mortgagor in executing the same will be protected, although the object and design of the mortgagor in executing the same was to delay, hinder or defraud his other creditors. Hall v. Arnold, 15 Barb. 599. An assignment executed by a man in embarrassed or insolvent circumstances of his property, in trust for the benefit of creditors, is valid, if it uncon- ditionally and absolutely devotes the whole of the assigned property to the payment of his debts, provided it is made without any intent to hinder, delay or defraud his creditors. And, if such assignment STATUTE OF FKAUDS. 291 Fraudulent gale, assignments, judgments, etc. was valid in its creation, no subsequent fraudulent or illegal acts of the parties can invalidate it. Browning v. Hart, 6 Barb. 91 ; Wilson V. Forsyth, 24: id. 106, 107 ; Hardmann v. Bowen, 39 N. T. 196 ; S. C, 5 Abb. (N. S.) 332 ; Americoi/n Exchange BamJc v. Webh, 15 How. 193. Such subsequent acts are admissible upon the question of the intent with which the assignment was made, but they are not con- clusive, lb. ^ . Declarations made by the assignor after the assignment, and after he has parted with the assigned property are not admissible for the pur- pose of impeaching the assignment. Guyler v. McCa/rtmey, 40 N. T. 221. But what the assignor did before he made the assignment, and ia contemplation of making it is evidence upon the question of his inten- tion in making it. Peoh V. Grouse, 46 Barb. 151. If a debtor, im- mediately before making an assignment for the benefit of creditors, buys merchandise which he does not intend to pay for, sells it on credit, and assigns the debt to the assignee, and at the time of making the assignment retains a large amount of money from the assignee for his own use, and allows his clerks to fraudulently retain money from their own use or for the benefit of the assignor, these facts unexplained are amply sufficient to warrant a finding that the assignor was actuated by a fraudulent intent in making the assignment. Waverly National Bank V. Halsey, 57 Barb. 249. Under the general assignment act of 1877, the failure to file an in- ventory as therein directed rendered the assignment void. Laws of 1877, chap. 466. Under the act as amended, the failure to file the in- ventory merely renders the assignee hable to removal on the application of a creditor. Laws of 1878, chap. 314. Where an insolvent debtor makes an assignment of all his property, and it provides that a portion of his creditors shall be paid, and that then the surplus remaining shall be repaid to the assignor, without pro- viding for the payment of the other creditors, such assignment will be void on its face. Strong v. Skirmer, 4 Barb. 546 ; Leitch v. Hollister, 4 N. T. 211 ; Curtis v. Leavitt, 15 id. 12. The rule is the same where there is an assignment of a part of the assignor's property, for the payment of a portion of his creditors, and providing for a return of the surplus before all the creditors are paid. Strong. y. Skinner, 4 Barb. 646. A debtor cannot exercise his right of giving preferences among creditors by assignment so as to secure to himself the future control of the assigned property or its proceeds. Raydook v. Coope, 53 N. Y. 68. But an assignment which provides that, after all the creditors are paid in full, the surplus should be returned tb the assignor, is valid. Ely 292 STATUTE OF FEAUDS. Fraudulent sale, assignments, judgments, etc. V. Cooh, 18 Barb. 612; Van EossuniY. Walker, 11 id. 237; Win- tringKam v. Lafoy, 7 Cow. 735 ; Morgan v. Coyne, 7 Neb. 429. Where an insolvent, retiring partner of a firm, which is also insolvent, makes an absolute and unconditional transfer of all his interest in th§ partnership property, to the other partner, who thereupon assumes the partnership liabilities, this will not render the transfer void as against the individual creditors of the former, from the mere fact that, as a part of the consideration of such transfer, the latter agreed to employ the services of the former and his wife and give them lodging upon the premises assigned, and pay to the wife a share of the future profits of the business, if any. Such an arrangement does not necessarily show an intent by the retiring partner to defraud his individual creditors ; nor does it, by secui-ing him the beneficial use of a part of the property, create or reserve any fund for his benefit. Griffin v. Cranston, 10 Bosw. 1. A voluntary assignment to a trustee for the benefit of creditors con- taining a provision that the trustee shall not be accountable for any loss sustained by the trust property, unless it shall happen from gross negli- gence or willful misfeasance, is void. Litchfield v. White, 7 N. T. 438 ; S. C, 3 Sandf. 545. An assignment made by an insolvent is not void on its face, be- cause it provides that the assignee may employ suitable agents at a reasonable compensation, to be paid out of the effects assigned, and that he shall adopt such measures generally in relation to the settlement of the estate as will, in his judgment, promote the true interest thereof. Mann v. WitbecTc, 17 Barb. 388. But a provision in the assignment of an insolvent debtor, that the assignee, .a lawyer, shall be allowed a reasonable counsel fee, over and above the expenses and commissions for executing the trust, is illegal and renders the assignment void. Nichols V. McEwen, 17 N. Y. 22 ; S. C, 21 Barb. 65. An assignment for the benefit of creditors will not be rendered void by reason of a direction to the assignee to first pay all the just and reasonable expenses, costs and charges and commissions of executing and carrying into effect the assignment, " and all reasonable and proper charges for attorney and counsel fees respecting the same." Butt v. Pech, 1 Daly, 83. In the case cited, the court distinguished it from Nichols V. McEwen, because in that case the assignee was a lawyer, and was to receive a counsel fee in addition to his other expenses and commissions, while in the present case there was no provision for paying the assignee any extra compensation; and that the direction to pay reasonable counsel fees for necessary assistance was not illegal, since it STATUTE OF FRAUDS. 293 Fraudulent Bale, assignments, judgments, etc. merely expressed what the law accords in such a case, because the reason- able expenses of counsel are always allowed to the assignee. An assignee, who is an attorney, is precluded from applying the trust funds to the payment of himself, or of firms in which he may be a partner, for professional services rendered in the administration of the trust. Wmn v. Crosby, 52 How. 174. And a provision in the assignment authorizing the assignee to use or employ the proceeds of the assignee's estate, in defending suits that might be brought against the assignor by his creditors, to recover their several debts, would have the effect to hinder and delay creditors and would render the assign- ment void. Levy's AGCounting, 1 Abb. N. C. 177. A provision in an assignment for the benefit of creditors, authorizing either the assignor or the trustees to declare future preferences, is fraudulent and void. Sheldon v. Dodge, 4 Denio, 217 ; Strong v. Skinner, 4 Barb. 546 ; AveriU v. Loucks, 6 id. 470. The assignment must itself fix and determine the rights of creditors in the assigned property and not re- serve to the assignors the power of substantially doing so. Kercheis v. Schloss, 49 How. 284. But where an assignment for the benefit of creditors provided for a preference to those creditors who were named " in the annexed sched- ule," which schedule was not annexed until two days after the de- livery of the assignment, it was held that the assignment was valid where it was found that there was entire good faith on the part of both assignor and assignee in relation to the matter. Hotop v. Neidig, 17 Abb. 332. A provision in such an assignment of all the debtor's property, when a portion of it consists of unfinished machinery and materials in pro- cess of manufacture, the completion of which was necessary to an ad- vantageous sale, authorizing the assignees to complete the manufacture and work up the materials at the expense of the assigned fund, as in their judgment might be advisable, so as to realize the greatest amount of money therefrom, renders the assignment fraudulent and void on its face, though an actual fraudulent intent, except as thereby mani- fested, is disproved. Dunham v. Waterman, 17 N. Y. 9 ;, S. C, 6 Abb. 357. And see RitchcoGk v. Cadmus, 2 Barb. 381. Whenever an assignment contains provisions which are calculated, fer se, to hinder, delay, or defraud creditors, although the fraud may be passed upon as a question of fact, it nevertheless becomes the duty of the court to set aside the finding, if in opposition to the plain infer- ences to be drawn from the face of the instrument. A party must, in all cases, be held to have intended that which is the necessary con- 294 STATUTE OF FEAUDS. Fraudulent sale, assignments, judgments, etc. sequence of his acts. Dunham y. Waterman, 17 N. Y. 9 ; LoeschigTc, V. Bridge, 42 id. 421. An assignment which in express terms, or which by necessary im- plication, provides for a sale of the assigned property on credit, is fraudulent and void on its face as against creditors. Nicholson v. Leavitt, 6 l!T. Y. 510 ; Bur'dich v. Post, id. 522 ; Porter v. Williams, 9 id. 142; S. C, 12 How. 107; Brigham v. Tillinghast, 13 IST. Y. 215. Creditors interested in a voluntary assignment are entitled to a prompt sale and distribution ; and if the assignment, in effect, purports to empower the assignee, in his discretion, to postpone selling, it is void as matter of law. McGleery v. Alien, 7 Neb. 21. An assignment is not void which prohibits a sale on credit, but re- quires the property to be sold for cash. Carpenter v. Underwood, 19 N. Y. 521. "When an assignment is not void on its face, there ought to be clear evidence of a fraudulent intent in making the assignment before it is declared void. Wilson v. Forsyth, 24 Barb. 105, 106, 107. When the assignor retains the possession of the assigned property, the assignment is presumptively fraudulent, and will be void unless the transaction is satisfactorily explained. Adams v. Pa/vidson, 10 N. Y. 309 ; PiTie v. BiTcert, 21 Barb. 469 ; Connah v. Sedgwick, 1 id. 210 ; Terry v. Butler, 43 id. 395. An assignment is not necessarily fraudu- lent and void, because the assignor omitted to pay over all the money he possessed at the time of making the assignment, and because he carried off a large sum of that money after the assignment was exe- cuted. Wilson V. Forsyth, 24 Barb. 105, 106, 107 ; American Ex- chamge Bank v. WM, 15 How. 193. A debtor having made an assign- ment, and being apprehensive that it might be held defective, subse- quently gave a confession of judgment to the assignees, who gavQ a declaration showing that the judgment was held in trust for the credit- ors, and that it was to be resorted to only in case the assignment should be held invalid ; it was held that the judgment was void. Mackie v. Cai/rns, 5 Cow. 547 ; DPvemois v. Leamitt, 23 Barb. 64, 81. A valid assignment for the benefit of creditors fixes their rights, and those rights cannot afterward, without their consent, be varied by the assignor or the trustees. Bell v. Holford, 1 Duer, 58 ; Sheldon v. Smith, 28 Barb. 593. A general assignee for the benefit of creditors is not a lonafide assignee in the sense that will exclude the equities ex- isting between the assignor and a surety upon promissory notes made by the assignor ; and if the assignor could not have maintained an ac- tion against such surety on the notes, his general assignee does not STATUTE OF FRAUDS. 295 Fraudulent sale, assignments, judgments, etc. stand in any better position, and therefore he cannot maintain an action upon them. Seed v. Sands, 37 Barb. 185. Whether an assignment is void on its face on account of some provision contained in it is always a question of law for the coiirt. Sheldon v. Dodge, 4 Denio, 218 ; Edgell v. Hart, 9 JST. T. 213 ; Kellogg v. Slawson, 15 Barb. 56; S. C, 11 N. Y. 302 ; Dunham v. Waterman, lY id. 9. But, whenever it is a question upon the evidence, whether the as- signment was made with an intent to hinder, delay or defraud creditors, it is a question of fact for the jury. 3 R. S. 225, § 4, 5th ed. ; Sey- mour V. Wilson, 14 N. T. 567 ; Thompson v. Blanohard, 4 id. 303 ; Eanford v. Artcher, 4 Hill, 271. A judgment which is confessed for the purpose of hindering, delay- ing or defrauding creditors is void. 3 E. S. 224, § 1, 5th ed. ; Mackie V. Cairns, 5 Cow. 547. "Where property is sold on an execution, and it is bid off by the plaintiff in the execution, the sale will be presump- tively fraudulent as to creditors, if the property is left in the pos- session of the defendant in the execution. Fonda v. Gross, 15 Wend. 628; Oardvnier v. Tvhis, 21 id. 169; Farrington v. Caswell, 15 Johns. 430. But this presumption may be rebutted, and where the condition of the property is such as to furnish a sufficient excuse, as where it con- sists of unthreshed oats in a barn, and beans, some of which were in a mow in the barn, and some of them in a field ungathered, the property need not be immediately removed. Woodworth v. Woodworth, 21 Barb. 343 ; Wyman v. Hart, 12 How. 122 ; Brown v. Wilmerding, 6 Duer, 220. See last case stated, Yol. T, 310. The mere fact that a judgment confessed is confessed to secure as well a debt owing to a creditor other than the plaintiff, as one owing to the latter, does not render it fraudulent and void as against creditors. Baton v. Westervelt, 2 Duer, 362. The law does not presume any transaction fraudulent without some evidence of its existence ; and therefore a jiidgment will not be pre- sumed to be fraudulent ; and it will be held to be valid until proof of fraud is given by the party attacking its validity. Dunham v. Water- man, 3 Duer, 166, 180. In construing the provisions of a general assignment, the courts are governed by the rules applicable to ordinary conveyances ; and no such assignment will be adjudged to be fraudulent on its face where the lan- guage of the instrument admits of an interpretation in harmony with settled principles of law. Townsend v. Stea/rns, 32 N. Y. 209. An assignment is not void on its face because it directs the assignee to dis- 296 STATUTE OF FEAUDS. Fraudulent sale, asaigumeuts, judgments, etc. pose of the assigned property, " at such time or times, and in such man- ner as to him may seem most for the benefit and advantage of the cred- itors." lb. ; Jessup v. Sulse, 21 N. Y. 168. So an assignment is valid although it directs the assignee to take possession of all the assigned property, and " within such convenient time as to him might seem meet, by public or private sale, for the besi; price that can be procured, convert all and singular the said premises, property and estate into money," etc. Benedict v. Huntington, 33 N. Y. 219. A hona fide purchaser from a fraudulent vendee will obtain a vahd title to the property as against the creditors of the vendor. 3 R. S. 225, § 5, 6th ed. ; ante, 59. Thus, a sale upon credit of the entire effects of an insolvent firm to a responsible vendee is not fraudulent per se, although made by the vendor with intent to hinder, delay and defraud creditors, and although the purchaser had notice of the insolvency of his vendor, if he had no previous notice of the fraudulent intent. Ruhl v. Phillips, 48 N. T. 125 ; S. C, 8 Am. Eep. 522. The mere fact that a person in failing circumstances makes a sale of his property to a purchaser having knowl- edge of his insolvency, does not show fraud ; but, on the other hand, if the sale is made for a fair and full value, and there are no other cir- cumstances tending to impeach it, the transaction may be evidence of good faith and an honest desire to appropriate his means to the dis- charge of his debts. Loesehigk v. Bridge, 42 N. T. 421. The mere knowledge that there is a judgment against a debtor will not render a purchase from him void, if there was no intent to de- fraud creditors. Beals v. Ournsey, 8 Johns. 446 ; Waterbury v. Sturte- vant, 18 Wend. 353. But where the purchaser has notice of the judg- ment, and purchases the goods with intent to defraud such judgment creditor, the purchase will be void. Wiohham v. MiUer, 12 Johns. 320 ; Beals V. Ournsey, 8 id. 446 ; Waterbury v. Stwrtevant, 18 Wend. 353. To invalidate a sale, tangible facts must be proved from which a legal inference of fraudulent intent can be drawn. It is not enough to create a suspicion of wrong, nor should a jury be permitted to guess at the truth. Nor is it enough that the vendor was guilty of a fraudulent intent in making the sale and that the vendee had knowledge of such intent. It must be made to appear that the vendee participated in the fraudulent intent. Mere proof of inadequacy of price will not alone accomplish this. Jaeger v. Kelley, 52 N. T. 274 ; Dudley v. Danforth, 61 id. 626 ; Van Wyoh v. Baher, 16 Hun, 168. A fraudulent sale is binding upon the vendor, although it may be voidable as to his creditors. Moseley v. Moseley, 15 N, Y. 334 ; Water- STATUTE OF FKAUDS. 297 Fraudulent sale, asBignments, judgments, etc. 'bury V. Westenelt, 9 id. 598 ; Jackson v. Oarnsey, 16 Johns. 189 ; Jackson V. Cadwell, 1 Cow. 623. But executors, administrators, receiv- ers, assignees, or other trustees of insolvents, may disaffirm such sales. 3 E. S. 226, §§ 1, 2, 3, 5th ed. ; Laws 1858, chap. 314, §§ 1, 2, 3. The general rules relating to assignments of choses in action have been discussed in a preceding chapter, and. in the same connection, so much of the statute relating to general assignments for the benefit of credi- tors, as affects the title of the assignee, has been given. See Yol. I, 812. More than this would be out of place in a work relating to the law and practice in justices' courts, as the jurisdiction of proceedings under the statute is vested in the County Court ; and the only questions which are likely to arise on a trial before a justice of the peace are those relating to the title of the assignee of the insolvent, and his right, by reason of such title, to sue or defend in justices' courts. Questions involving the validity or invalidity of conveyances of land, with a view to hinder, delay or defraud creditors, cannot be determined in such courts, and are, therefore, not within the scope of this work. CHAPTER XX. HUSBAISTD AND WIFE. Section 1. How the relation is created. Actions to recover dam- ages for a breach of promise to marry are not within the jurisdiction of a justice's court and, therefore, require no discussion in this work. See Code Civil Proc, § 2862. But questions relating to the rights and lia- bilities of parties who have entered into a marriage contract are con- stantly arising upon the trial of causes before a justice ; and, since the passage of the enabling acts, which overturned many of the rules of the common law as they had been settled for centuries, few questions are more perplexing than those involving the rights and liabilities of married women. Before these questions can arise, the existence of a marriage must be shown. Marriage in this State is a mere civil contract, which depends entirely upon the consent and agreement of the contracting parties for its validity. Though it is to be observed that there are cases in which the law prohibits marriages, even when the parties themselves consent and agree to a marriage. Marriage differs essentially from other civil contracts, in one particu- lar, which is, that the contract when once made and consummated, is con- clusive upon the parties, who cannot of themselves rescind the contract, even if they wish to do so. Clayton v. Wa/rdell, 4 N. T. 238, Peatt, J. Marriage, in its origin, is a contract of natural law ; and, in civil so- ciety, is a civil contract, requiring no form or ceremony unless imposed by the local law ; and hence, when the law directs the ceremony to be conducted in a prescribed manner, a failure to comply with such forms, does not affect the validity of the contract, unless such effect be expressly directed by statute. Ferrie v. Publio Administrator, 3 Bradf. 169, 170, 151 ; S. C, 26 Barb. 1Y7; 23 N. Y. 90. By the law of this State, a man and woman who are competent to marry each other, without going before a minister or magistrate, with no previous notice given, with no form of ceremony, civil or religious, and with no record or written evidence of the act kept, and merely by words of present contract between them, may take upon themselves the relation of husband and wife and be bound to themselves, to the HUSBAND AND WIFE. 299 How the relation is created. State and to society as such ; and if after that the marriage is denied, proof of actual cohabitation as husband and wife, acknowledgment and recognition of each other to friends and acquaintances and the public as such, and the general reputation thereof, will enable a court to presume that there was at the beginning an actual and hona fide marriage. Rynes v. McDermott, 82 N. Y. 41 ; BrinMey v. BrinUey, 50 id. 184 ; S. C, 10 Am. Eep. 460. The principles of the common law respecting marriage are few and simple. It requires no ceremony, no solemnization by minister, priest or magistrate. A mar- riage is complete when there is a full, free and mutual consent by the parties capable of contracting, even when not followed by cohabitation. Cavjolle V. Ferrie, 26 Barb. 177, 184 ; S. C, 23 N. T. 90, 106 ; Jack- son V. Winne, 7 Wend. 47 ; Fenton v. Reed, 4 Johns. 52 ; Hayes v. People, 25 N. Y. 390. See Dyer v. Brannoch, Q6 Mo. 391 ; S. 0., 27 Am. Eep. 359 ; Richard v. Brehm, 73 Penn. St. 140 ; S. C, 13 Am. Eep. 733 ; Jones v. Reddich, 79 N. C. 290 ; Meister v. Moore, 96 U. S. (6 Otto) 76. Proof of an actual marriage by persons who were present at the ceremony is not, in all cases, necessary. Such strict proof is required in those cases only in which there is a prosecution for bigamy, or in actions for criminal conversation. In other eases a marriage may be proved from cohabitation, reputation, acknowledgment of the par- ties, reception in the family, and other circumstances from which a marriage may be inferred. OaujoUe v. Ferrie, 23 N. Y. 107 ; Wright v. Wright, 48 How. 1. See Chamberlain v. Gharnberlain, 71 N. Y. 423. These circumstances, however, do not constitute marriage, they are merely evidence of it and they may be rebutted by other tes- timony. Clayton v. Wardell, 4 N. Y. 230. By the common law infants may marry — males at the age of four- teen, and females at the age of twelve years — and the consent of parents is not necessary to the validity of the marriage. Bennett v. Smith, 21 Barb. 439, 440. And see 3 E. S. 227, § 3, 5th ed. Consent is one of the essential requisites to a valid marriage con- tract ; and if the contracting parties, or either of them, has not legal capacity to consent, the contract will be void. For this reason, an idiot or a lunatic while in a state of lunacy cannot contract so as to constitute a valid marriage; and the mere ceremony of marriage will be useless and the pretended marriage void. Jagues v. PvMio Administrator, 1 Bradf. 499, 510, 511 ; Wightman v. Wightmam,, 4 Johns. Oh. 343 ; Browning v. Reane, 2 Phill. 69 ; Portsmouth v. Portsmouth, 1 Hagg. 355. See Code of Civil Pro., §§ 1742, 1743. 300 HUSBAND AND WIFE. Eights of married women. A marriage which is procured by fraud, terror and abduction win be declared void, although the injured party may have given an apparent consent at the moment of the marriage celebration. Ferlat v. Gojon, Hopk. Ch. 478, 493. At page 494 it is said that such a marriage may be treated as null by every court in which the question may incidentally come in question, as in prosecutions for bigamy, ac- tions of dower, etc., though in such cases the decision will be conclusive merely in the case in which the decision is made. To obtain a decision which is conclusive in all cases, a decree must be obtained which de- clares the marriage void in a suit instituted for that purpose. See Code, §§ 1743, 1754. Duress is generally a ground for declaring a marriage void ; but the mere fact that the party marrying was at the time under arrest upon a charge of being the putative father of a bastard child by the female whom he marries, is not a ground for declaring the marriage invalid. Jackson v. Winne, 7 Wend. 47. See State^ v. Domis, 79 N. C. 603 ; Johns V. Johns, 44 Tex. 401 ; WilUcums v. State, 44 Ala. 24 ; SicMes V. Carson, 26 K J. Eq. 440. § 2. Eights of married women. At common law the rights, duties and liabilities of married women were so well settled and deter- mined by a long series of judicial decisions that few questions could arise in respect to either which could not be answered by the applica- tion of a familiar principle of law or the citation of a case in point. In equity her rights were equally well settled and determined. But by a series of legislative enactments, based undoubtedly upon principles of natural justice, and designed to place the wife more nearly upon terms of equality with her husband in respect to rights of property, the rules of the common law have been substantially swept away, and the cases once authority have been rendered obsolete. At common law marriage is an absolute gift to the husband of the goods, chattels and personal property of which the wife is actually possessed, and of such as come to her during coverture. As to choses in action, marriage is only a qualified gift, conditioned that the husband reduces them to possession during, the existence of the marriage relation, and when so recovered, the title vests absolutely in him. The title to all personal property possessed by the wife at the time of marriage, and to such as came to her afterward, and also to such choses in action as the husband recovered during coverture, become vested upon marriage in him, and upon his death the property went to his representatives and not to the wife. If the wife died first the title remained in him after as before her death. If the wife survived her husband such choses in HUSBAND AND "WIFE. 301 Eights of married women. action as he had not reduced to possession went to her, and upon her death to her representatives. If the wife died first the title to such choses in action was, upon her death, transferred to the husband through the right of administration. At common law a married woman could take title to real or personal property by conveyance from any person except her husband ; but where no trust was created he became abso- lutely vested with her personal property when reduced to possession, and of her chattels real with power to alien them at his pleasure during the life, and upon her death to own and enjoy them absolutely. So by the common law contracts made by married women were void and could not be enforced against them. This was necessarily so, as at law a mar- ried woman had no property under her ownership and control which could furnish the subject-matter of a contract. In short, the very being and legal existence of the woman was by the fact of marriage suspended or incorporated and consolidated with that of her husband. From this brief outline of the rights of a married woman under the common law, the object and effect of the enabhng acts will be more readily comprehended. Since the enactment of these statutes and the Code the husband and wife are, for all legal purposes, no longer one person. Matteson v. Wew YorJc Central S. It. Co., 62 Barb. 364, 373. The old religious idea of a mystic union in marriage by which " they twain become one flesh," and the common-law notion that by marriage the being and legal existence of wife was suspended or incor- porated and consolidated with that of her husband, have to a great extent become old fashioned and obsolete. Corn Ex. Ins. Co. v. Bdbcock, 42 N. Y. 613, 645. Marriage no longer operates upon the property but only upon the person. Meeker^. IPW^/^!!, 76 N.T. 262, 268. The law now regards a married woman as perfectly capable to manage and take care of her property ; to will, sell, give away, mortgage or pledge the same ; to carry on any business, large or small, on her own account,'and to bind herself by all her contracts in that business ; and even to vindi- cate her own wrongs. Corn Ex. Ins. Co. v. Babcook, 42 N. Y. 613, 645. The enabling acts provide as follows : " The real and personal property of any female who may hereafter marry, and which she sliall own at the time of marriage, and the rents, issues and profits thereof shall not be subject to the disposal of her husband, nor be liable for his debts, and shall continue her sole and separate property, as if she were a single female." Laws of 1848, chap. 200, § 1. " The real and personal property, and the rents, issues and 302 HUSBAND AND WIFE. Rights of married women. profits thereof, of any female now married, shall not be subject to the disposal of her husband, but shall be her sole and separate property, as if she were a single female, except so far as the same may be liable for the debts of her husband, heretofore contracted." Laws, of 1848, chap. 200, § 2. " A married female may take by inheritance, or by gift, grant, de- vise or bequest, from any person other than her husband, and hold to her sole and separate use, and convey and devise real and personal property, and any interest or estate therein, and the rents, issues and profits thereof, ia the same manner and with like efEect as if she were unmar- ried ; and the same shall not be subject to the disposal of her husband, nor be Hable for his debts." Laws of 1848, chap. 200, § 3, as amended by Laws of 1849, chap. 375, § 1. " Any person who may hold, or who may hereafter hold, as trustee for any married woman, any real or personal estate or other property, under any deed of conveyance, or otherwise, on the written request of such married woman, accompanied by a certificate of a justice of the Supreme Court that he has examined the condition and situation of the property, and made due inquiry into the capacity of such married woman to manage and control the same, may convey to such married woman, by deed or otherwise, all or any portion of such property, or the rents, issues or profits thereof, for her sole and separate use and benefit." Laws of 1S49, chap. 875, § 2. " All contracts made between persons, in contemplation of marriage, shall remain in full force after such marriage takes place." Laws of 1849, chap. 375, § 3. " It shall be lawful for any married woman, by herself and in her name, or in the name of any third person, with his assent, as her trus- tee, to cause to be insured for her sole use, the life of her husband, for any definite period, or for the term of his natural life ; and in case of her surviving such period or term, the sum or net amount of the pre- miums becoming due and payable, by the terms of the insurance, shall be payable to her, to and for her own use, free from the claims of the representative of the husband, or of any of his creditors, or of any party or parties claiming by, through or under him. But when the premiums paid in any year out of the property or funds of the hus- band shall exceed $500, such exemption from such claims shall not ap- ply to so much of said premium so paid as shall be in excess of $500, but such excess, with the interest thereon, shall inure to the benefit of his creditors." Laws of 1840, chap. 80, § 1, as amended by Laws of HUSBAND AND WIFE. 303 Rights of married women. 1858, chap. 187, § 1, as amended by the Laws of 1866, chap. 656, § 1, as amended by the Laws of 1870, chap. 227. " Any policy in favor of a married woman, or of her and her chil- dren, or assigned in her, or in her and their favor, on written request of such married woman, duly acknowledged before a commissioner of deeds, or other officer authorized to take acknowledgment of deeds, in the same manner as required by law to pass her dower-right in lands of her husband, and on the written request of the pohcy-holder may be surrendered to and purchased by the company issuing the same, in the same manner as any other pohcy. And such married woman may, in case she have no child or children born of her body, dispose of such policy in and by a last will and testament, or any instrument in the nature of a last will and testament, or by deed duly executed and acknowl- edged, before an officer authorized to take acknowledgment of deeds, in the same manner as required by law to pass her dower-right inlands of her husband, which disposition lawfully made shall invest the person or persons to whom such policy shall have been bequeathed, or granted and conveyed, with the same rights in respect thereto as such married woman would have had in case she survived the person on whose life such policy was issued, and such legatee or grantee shall have the same right to dispose of such policy as herein conferred on such married woman." Laws of 1840, chap. 80, § 2, as amended by Laws of 1858, chap. 187, § 2, as amended by Laws of 1862, phap. 70, as amended by Laws of 1866, chap. 656, § 2, as amended by Laws of 1873, chap. 821. " Every married Avoman, being a resident of this State, who shall receive a patent for her own invention, pursuant to the laws of the United States, may hold and enjoy the same, and all the proceeds, bene- fits and profits thereof, and of such invention, to her own separate use, free and independent of her husband and his creditors ; and may trans- fer and dispose thereof, and in every respect perform all acts in rela- tion thereto, in the same manner as if she were unmarried ; but this act shall not authorize such married woman to contract any pecuniary obligations to be discharged at any future time." Laws 1845, chap. 11, § 1- " When any deposit shall be made in any savings bank or institution, by any female, being, or hereafter becoming, a married woman, in her own name, it shall be lawful for the trustees or officers of such bank or institution to pay such depositor such sum or sums as maybe due such female, and the receipt or acquittance of such depositor shall be a suf- ficient legal discharge to the said corporation therefor." Laws 1850, chap. 91, § 1. 304 HUSBAND AND WIFE. Eights of married women. " It shall be lawful for any married woman, being a stockholder or member of any bank, insurance company (other than mutual fire in- surance companies), manufacturing company, or other institution incor- porated under the laws of this State, to vote at any election for direct- ors or trustees, by proxy or otherwise, in such company of which she may be a stockholder or member." Laws 1851, chap. 321, § 1. "An action maybe maintained against the husband and wife jointly, for any debt of the wife contracted before marriage ; but the execution on any judgment, in such action, shall issue against, and such judgment shall bind the separate estate and property of the wife only, and not that of her husband." Laws 1853, chap. 576, § 1. ' 'Any husband wiio may hereafter acquire the separate property of his wife, or any portion thereof, by any ante-nuptial contract, or other- wise, shall be liable for the debts of his wife contracted before marriage, to the extent only of the property so acquired, as if this act had not been passed." Laws 1853, chap. 576, § 2. In the year 1860 an act was passed in relation to the rights of mar- ried women. In the year 1862 the act of 1860 was amended, and sev- eral of its sections repealed. Section 7 of chapter 90 of the Laws of 1860, and sections 3, 5 and 7 of chapter 172 of the Laws of 1862, were repealed by the general repealing act of 1880. See Laws of 1880, chap. 245. Those sections which are now in force will be given, while the repealed sections will be omitted. " The property, both real and personal, which any married woman now owns as her sole and separate property, that which comes to her by descent, devise, bequest, gift or grant, that which she acquires by her trade, business, labor or services, carried on or performed on her sole or separate account, that which a married woman, married in this State, owns at the time of her marriage, and the rents, issues and pro- ceeds of all such property, shall, notwithstanding her marriage, be and remain her sole and separate property, and may be used, collected and invested by her in her own name, and shall not be subject to the inter- ference or control of her husband, or liable for his debts except such debts as may have been contracted for the support of herself or her children, by her as his agent." Laws 1860, chap. 90, § 1. "A married woman may bargain, sell, assign and transfer her sepa- rate personal property, and carry on any trade or business, and per- form any labor or services on her sole and separate account ; and the earnings of any married woman from her trade, business, labor or services, shall be her sole and separate property, and may be used or invested by her in her own name." Laws 1860, chap. 90, § 2. HUSBAND AND WIFE. 305 Rights of married women. "Any married woman possessed of real estate as her separate property, may bargain, sell and convey such property, and enter into any con- tract in reference to the same, with the like effect in all respects as if she were unmarried ; and she may, in like manner, enter into such covenant or covenants for title as are usual in conveyances of real estate, which covenants shall be obligatory to bind her separate property, in case the same or any of them be broken." Laws 1860, chap. 90, § 3, as amended by Laws 1862, chap. 172, § 1. " No bargain or contract made by any married woman, in respect to her sole and separate property, or any property wliich may hereafter come to her by descent, devise, bequest, purchase, or the gift or grant of any person (except her husband), and no bargain or contract entered into by any married woman, in or about the carrying on of any trade or business, under any statute of this State shall be binding upon her husband, or render him or his property in any way liable therefor." Laws 1860, chap. 90, § 8, as amended by Laws 1862, chap. 172, § 4. " No man shall bind his child to apprenticeship or service, or part with the control of such child, or create any testamentary guardian therefor, unless tbe mother, if living, shall, in writing, signify her assent thereto." Laws 1862, chap. 172, § 6. This section has never been expressly repealed. But it was repealed by implication, at least so far as it prohibits the appointment of a testamentary guardian with- out the written consent of the mother, by the amendment of the Revised Statutes in 1871, providing that " every father whether of full age or a minor, of a child likely to be born, or of any living child under the age of twenty-one years and unmarried, may by deed or last will duly executed, or in case such father shall be deceased and shall not have exercised his said right of appointment, then the mother, whether of full age or a minor, of every such child, may, by her deed, or last will duly executed, dispose of the custody and tuition of such child during its minority, or for any less time to any person or persons in possession or remainder." Laws of 1871, chap. 32 ; Thomson v. Thomson, 55 How. 494 ; Fitzgerald v. Fitzgerald, 24 Hun, 370. "In an action or special proceeding, a married woman appears, prosecutes, or defends alone or joined with other parties as if she was single. It is not necessary or proper to join her husband with her as a party in any action or special proceeding affecting her separate prop- erty." Code of Civil Proc, § 450. " An action may be maintained by a female whether married or single, to recover damages for words hereafter spoken imputing un- chastity to her, and it shall not be necessary to allege or prove special 39 306 HUSBAND AND WIFE. Rights of married women. damages in order to maintam such action. In such actions a married woman may sue alone, and any recovery therein shall be her sole and separate property." Laws of 1871, chap. 219 ; Code of Civil Proc, § 1906. This action cannot be maintained in a justice's court. Code of Civil Proc, § 2863. " Judgment for or against a married woman may be rendered and enforced in a court of record, or not of record, as if she was single." Code of Civil Proc, § 1206. It will be observed that those sections of the enabling acts which expressly authorized a married woman to sue or be sued have been repealed ; and that, with the exception of the right of action given in case of slander by the act of 18T1, the authority of a married woman to bring or defend an action must be sought for in the Code, or in the general principle of law that for every right there is a remedy. The sections of the Code of Civil Procedure cited (§§ 450, 2863) were Tm- doubtedly intended to take the place of and be a substitute for the provisions of the act of 1862 which were repealed. So far as the right to sue or defend is concerned the Code makes no distinction between a married woman and any other litigant. Under the present statutes of this State, the interests of husband and wife in property are no longer identical, but separate and independent. If, since the act of 1860, lands have been conveyed to a husband and wife, jointly, without any statement in the deed as to the manner as to which they shall hold, they are tenants in common. Meeher y. Wright, 76 N. Y. 262. The authority given to a married woman by the statute be- fore cited, to carry on any trade or business on her own account, and to have control of her own earnings, whether living with her husband or separate from him, worked a radical change in the pre-existing law. As incident to her authority under the statute to carry on a trade or business, a married woman may enter into any contract in respect thereto. She may purchase real or personal property on credit for the purposes of the trade or business into which she is about to enter, and bind herself by contract of payment, and also by her contracts in the course of the business in which she engages. Tiie power to carry on a separate trade or business includes the power to borrow money, and to purchase upon credit implements, fixtures, and real or personal estate necessary or convenient for the purpose of commencing it, as well as the power to con- tract debts in its prosecution after it has been established. Bodine v. Eilleen, 63 N. T. 93 ; Freckmg v. Rolla/nd, id. 422. She may en- gage in business and incur the most dangerous and even ruinous liabili- ties in its prosecution, and they will be enforced against her to the HUSBAND AND WIFE. 307 Rights of married women. same extent as if she was unmarried. Cashman v. Henry, 75 N. Y. 103, 113. So, under the statutes as they now exist, a married woman, as incident to her right to acquire real and personal property by pur- chase, and hold it to her sole and separate use, may purchase property upon credit and bind herself by an executory contract to pay the con- sideration money, in the same manner and to the same extent as if she were d^feme sole, although she had no antecedent estate to be bene- fited, and although the purchase was not made for the pui-poses of a trade or business. lb. ; Tiemeyer v. Turnquist, 85 N. Y. 516. The statutes conferred upon a married woman the broadest and most comprehensive powers over her separate real and personal property. Her power of disposition is absolute and unqualified. She may sell it or give it away. She is no longer regarded as under the tutelage of the court, but under the new legislation is assumed to be capable of managing her own affairs. Cashman v. Henry, 75 N. Y. 103. A wife may obtain title to real estate by deed from her husband, which courts of equity will enforce and protect, though the conveyance is void at law. Hunt v. Johnson, 44 N. Y. 27 ; S. C, 4 Am. Kep. 631. And whenever a conveyance from a husband to a wife is founded upon a valuable consideration it is upheld, where the wife is regarded as having a separate existence, separate rights and a capability of holding separate property, notwithstanding the conveyance may not be good at common law. Sh^pard v. Shepardyl^ohnB.Gh.bl; Meeker y. Wright, 76 JSr. Y. 262 ; Syracuse Chilled Plow Co. v. Wing, 20 Hun, 206 ; Babooch v. EcUer, 24 N. Y. 623 ; Mason v. LiUey, 19 Hun, 119 ; S. C, 54 How. 104. A husband may borrow money of his wife under a verbal promise of repayment, and he may repay the loan after he becomes insolvent and just before making a general assignment for the benefit of his cred- itors, and in the absence of fraud or bad faith, she will be entitled to hold the money or the avails thereof as against his creditors. Wood- worth V. Sweet, 61 N. Y. 8. So he may make his wife a preferred creditor to the amount of the debt, and if the preference was made in good faith and without intent to defraud, the assignment will not be held invalid. Jaycox v. Caldwell, 51 N. Y. 395 ; McCartney v. Welch, id. 626. But the meritorious consideration arising out of the duty of a husband to support his wife is not sufficient in equity, as against the collateral heirs of the husband, to sustain a promissory note given by the husband to the wife. Whitaker v. Whitaher, 52 N. Y. 368 ; S. 0., 11 Am. Eep. 711. But, in the absence of the intervention of the rights of creditors, courts of equity will sustain a gift from a husband 308 HUSBAND AND WIFE. Eights of married women . to his wife. Mack v. Mack, 5 N. Y. Sup. Ct. (T. & C.) 528 ; S. C, 3 Hun, 323 ; Reed v. Reed, 52 N. Y. 651 ; Curtis v. Fox, 47 id. 299 ; ShutUeworth v. Winter, 55 id. 624. Where a husband has conveyed lands directly to his wife she obtains an equitable title, and he will be estopped from claiming title as against her. Under recent legislation he has a right to convey to his wife. Tliompson v. Gommissioners, 79 N. Y. 54, 63 ; reversing S. C, 16 Hun, 86. Neither the act of 1848, nor that of 1849, enables a wife to convey real estate to her husband, directly. And where a wife, in contempla- tion of death, voluntarily, and in good faith, executed a deed to her husband, of lands which she owned, it was held that the lands did not pass to the husband, and that the deed was entirely ineffectual for the purpose intended. White v. Wager, 25 N. Y. 328 ; S. C, 32 Barb. 250. But it has been held that a deed by a wife directly to her husband may be treated as valid in equity. Townsliend v. Townshend, 1 Abb. N. C. 81. And that the validity of a deed from a wife to a husband may be established by the application of equitable principles where a consideration has been paid ; and also where the grantee is entitled to equitable relief for improvements made upon the premises in good faith. A voluntary conveyance of land by the wife to the husband was, how- ever, held to be wholly ineffectiaal. Winans v. Peebles, 32 N. Y. 423. A conveyance by a wife to a husband does not necessarily stand upon the same basis in equity as a conveyance by a husband to his wife, though in law they are equally void. Hunt v. Johnson, 44 N. Y. 27 ; S. C, 4 Am. Eep. 631. The right of a wife to her earnings would seem to have been so clearly conferred by statute that no question could arise in respect to it ; and yet the existence of that right has frequently been disputed. At common law a husband was entitled absolutely to the earnings of his wife and the proceeds of her labor. Under the statutes of 1848 and 1849, a married woman acquired certain rights of property, and as in- cident thereto, the power of management and control ; and all gains arising from the use of her separate estate, or from business in which she was engaged upon the credit of her separate estate, belonged to her and not to her liusband. ICnapp v. Smith, 27 N. Y. 277 ; Buckley v. Wells, 33 id. 518 ; Draper v. Stouvenel, 35 id. 507. Bat the acts of 1848 and 1849 did not change the rule of the common law, giving the husband the right to the services and earnings of the wife in ease where she had no separate estate, and where her labor was not connected with the use of her separate property. The act of 1860, however, remedied this defect. Under that act she may carry on any trade or business, and HUSBAND AND WIFE. 309 Rights of married women. perform any labor or services on her sole and separate account. It con- fers upon her the capacity of a, feme sole in respect to any business in which she may engage, and empowers her to labor on her own account. But the statute does not wholly abrogate the rule of the common law. The wife may still regard her interests and those of her husband as identical, and allow him to claim and appropriate the fruits of her labor. She may elect to labor on her own account, and thereby entitle herself to her earnings ; but, in the absence of such an election or of circumstances showing that she intended to avail herself of the privilege and protection conferred by the statute, the husband's common-law right to her earnings remains unaffected. When the question arises as to the right of the husband to recover for the labor and services of his wife, it must be determined upon the facts and circumstances of the case. When the labor is performed under a contract with the wife, and by the contract payment is to be made to her, the inference is strong if not conclusive of her intention to avail herself of the protec- tion of the statute. So where the wife is living apart from her husband, or is compelled to labor for her own support, or the conduct or habits of the husband are such as make it necessary for her protection that she should control the proceeds of her labor, the jury may well infer that her labor was performed on her separate account. But where the husband and wife are living together, and mutually engaged in pro- viding for the support of themselves and their family, each contributing by his or her labor to the promotion of the common purpose, and there is nothing to indicate an intention on the part of the wife to separate her earnings from those of her husband, her earnings belonging to the husband as at common law, and he may maintain an action in his own right to recover them. Where the wife is engaged in a business, as that of a trader, and it is conducted in her name, there is no room to question her right to the avails and profits. jBirkbecJc v. Ackroyd, 74 N. Y. 356. The services of the wife in the household in the discharge of her domestic duties still belong to the husband, and in rendering such service she still bears to him the com- mon-law relation. But where she labors for another on her own account, her service no longer belongs to her husband, and whatever she earns in such service belongs to her as if she were a feme sole. If a married woman is negligently injured so as to render her incapable of labor, her husband has a right of action against the wrong-doer for the loss of her services in the household, and she may also maintain an action in her own name against the wrong-doer to recover compensation for her disability to labor on her own account by reason of the injury. 310 HUSBAND AND WIFE. Eights of married women. Broohs V. Sohweri/ri, 54: N. Y. 343 ; W. T. Filer v. New York Ceottral li. a. Co., 49 id. 42; E. M. Filer v. New York Central B. E. Co., id. 47; S. C, 10 Am. Eep. 327 ; MinickY. City of Troy,19 Hun, 253. See /Snow v. Cable, id. 280. Where a married woman has separated from her husband and is sup- porting herself by her labor, her wages belong to her and she can main- tain an action in her own name to recover them. Pursell v. Fry, 19 Hun, 595 ; S. C, 58 How. 317. And when the husband and wife make separate contracts to perform labor and services for the same person there may be a separate recovery by each for the several services performed. Adams v. Ilonness, 62 Barb. 326. And a married woman may recover from a copartnership of which her husband is a member, the value of services rendered by her for the firm at his request. Adams y. Curtis, 4 Lans. 164. Bnt if the husband takes boarders into the house or converts his house into a hospital for the sick, and his wife takes charge of his establishment, and thus aids hiin in carrying on his business, in the absence of special proof, all her services and earnings belong to her husband. Reynolds v. Robinson, 64 N. Y. 589. But even under such circumstances the husband might cov- enant and agree that his wife should receive pay for her services on her own account though, in the absence of some arrangement to that effect, the inference of law and fact would be that she was working for her husband in the discharge of her marital duties. lb. The power conferred upon a married woman to labor on her own ac- count necessarily includes the right to make valid bargains for such labor before it is performed. Adams v. Ilonness, 62 Barb. 326. So in carrying on her separate business a married woman may employ servants or agents and enter into valid contracts with them for their services. She may carry on a mercantile business with her own capital through the agency of her husband, without rendering her property liable for the claims of his creditors. Buckley y. Wells, 33 N. Y. 518; Merchant Y. Bunnell, 3 Keyes, 539; S. C, 3 Trans. App. 35; 3 Abb. Ct. App. 280; FnappY. Smith, 27 N. Y. 277 ; Gage v. Dauchey, 34 id. 293 ; JDraper V. Stouvenell, 35 id. 607; Sa/mmis v. MoLoughlin, id. 647. And the wife may accept the gratuitous services of her husband in the man- agement of her separate business or property without giving his cred- itors any rights in her property or any interest in the profits of her busi- ness. Abbey v. Deyo, 4A N. Y. 343. As a wife is capable and competent to contract with her husband in her business, she may enter into a valid partnership agreement with him ; and the husband, as partner, will have no more power to affect a HUSBAND AND WIFE. 311 Liability of married women on contract. part of her personal estate not invested in the trade than he would have acting as her general agent in it. Zmimermcmn v. Erhm-t, 58 How. 11. See Hamilton v. Douglass, 46 N. Y. 218. In the absence of any statute varying the rule, jewelry and ornaments presented to the wife are her paraphernalia, and as such are subject to the control of her husband, who alone can sue for any injury to or con- version of them. McCormick v. Pennsylvania Central R. S. Co., 49 N. Y. 303. In equity, gifts of such property by the husband to the wife would be upheld, though void at law, and could only be impeached by creditors. Under the statutes of this State, the title of the wife to such property, if not absolutely converted into a legal estate, has all the incidents of a legal estate, and she is the proper person to sue for an injury to the property or for its conversion. liawson v. Pennsylvania Central B. R. Co., 48 N. Y. 212; S. C, 8 Am. Kep. 543. Where there is a gift of such property to the wife, she may bring the action, but otherwise the husband must sue. Curtis v. Delaware, Lack. <£) Western R. R. Co., 74 E". Y. 116 ; Rogers v. Long Island R. R. Co., 1 Sup. Ct. (T. & C.) 396. In respect'to the right of a married woman to maintain an action against her husband, there has been a conflict of authorities. It has been held that a wife who has left her husband without good cause, and is living separate and apart from him, may maintain an action against him to recover articles of her personal property left, and remaining in his house and possession. Mowland v. Howland, 30 Hun, 472. She may maintain an action against him to recover possession of her real estate, Minier v. Minier, 4 Lans. 421 ; Wood v. Wood, 18 Hun, 350 ; or for the conversion of her personal property. Whitney v. WhiPney, 49 Barb. 319. And she may maintain an action against him on a promissory note given in consideration of a promise to marry. Wright v. Wright, 54 N. Y. 437. And it seems that a married woman may sue her husband to enforce any right affecting her separate property, in any form of action, in the same manner that she might sue any stranger. lb. ; Power v. Lester, 23 N. Y. 527, 530. It has been held that the statutes do not authorize the wife to main- tain an action against her husband to recover damages for slander, Freethy v. Freethy, 42 Barb. 641 ; nor for an assault and battery. LoTigendyhe v. Longendyhe, 44 id. 366. § 3. Liability of married women on contract. It was held at one time that a married woman could not be sued at law for debts con- 312 HUSBAND AND WIFE. Liability of married women on contract. tracted during coverture, even if the debts were made for the pur- pose of carrying on her separate business, and were contracted since 18i8 or 18i9 ; that the remedy was exclusively in equity, and that a justice of the peace had no jurisdiction of such an action. Coon V. Brooh, 21 Barb. 546 ; Bickerman v. Abrams, id. 551. But by the act of 1862, the 2-emedy against a married woman in equity to charge her separate estate on her contract was superseded by a provision au- thorizing a suit against her in any court of the State, and a judg- ment against her personally. Laws of 1862, chap. 172, § 7; Ainsley V. ifeat?, 3 Lans. 116; Foster v. Conger, 61 Barb. 145; S. C, 42 How. 176; BalUn v. Billaye, 37 N. Y. 35; S. C, 35 How. 216; 4 Trans. App. 69. A similar provision was contained in the old Code. Code Proc, § 274. Both of these provisions were repealed by the gen- eral repealing act of 1880, but in their place a new provision has been substituted which permits a judgment against a married woman to be rendered and enforced by any court as if she was single. Code Civil Proc, § 1206. It must be remembered that it is not every contract entered into by a married woman that will create a legal liability against her. The disabilities of a married woman are general and exist at common law. The capabilities are created by statute, and are exceptional. It is for him who asserts the validity of a contract of a married woman, and seeks to enforce it by action, to bring it, by the evi- dence, within the exception. JVash v. Mitchell, 71 N. T. 199 ; S. C, 3 Abb. N. C. 171. A married woman is personally liable : 1. . Upon a contract entered into by her in or about carrying on a trade or business on her own account. Frecking v. Holland, 53 N. Y. 422 ; Manhattan Brass and Manuf. Co. v. Thompson, 58 id. 80; CashmanN. Henry, 1^ id. 103, 112, 113; Barton r. Beer, 35 Barb. 78 ; S. C, 21 How. 309. 2. Upon a contract entered into by her which relates to or is made for the benefit of her separate estate. Manhattan Brass and Manuf. Co. V. Thompson, 58 N. Y. 80 ; Owen v. Cawley, 36 id. 600 ; BaUin v. DiUaye, 37 id. 35 ; S. C, 35 How. 216 ; 4 Trans. App. 69 ; Tread- well V. Hoffman, 5 Daly, 207. 3. For the purchase-price of property, real or personal, to which she acquires title by purchase upon her own credit, although she is carrying on no trade or business, and has no separate estate at the time of the purchase, and does not in terms charge the debt upon her sepa- rate property. GashmoM v. Henry, 75 N. Y. 103 ; Tiemeyer v. HUSBA.ND AND WIFE. 313 Liability of married women on contract. Turnquist, 85 id. 516; Frecking v. Eolland, 53 id. 422; Acldey v. Westervelt, 86 id. 448. 4. Upon a contract entered into by her, in her own behalf, to pay rent for real or personal property, although at the time of the rent- ing she carried on no business on her own account and had no sepa- rate estate. Aokley v. WesUrvelt, 86 N . Y. 448 ; WesUroelt v. Ackley, 2 Hun, 258 ; 4 N. T. Sup. Ot. (T. & 0.) 444 ; S. C. affirmed, 62 N. T. 505. 5. Upon any contract entered into by her by which a liability is created and an intention is expressed to charge her separate estate. Manhattan Brass and Manuf. Go. v. Thompson, 58 N. Y. 80 ; Yale V. Dederer, 18 id. 265 ; S. C, 22 id. 450 ; 68 id. 329 ; MaxonY. Scott, 55 id. 247 ; Woolsey v. Brown, 74 id. 82 ; Third Nat. Bank v. Blake, 73 id. 260. 6. Upon a contract entered into before her marriage. Laws of 1853, chap. 576, § 1. The third and fourth class of cases above mentioned are embraced within the second ; and the rule may be broadly stated that a married woman is liable upon her contract if it relates to, or is made for the benefit of her separate property, or is the means of acquiring a separate property. By the renting of property in her own name a married woman acquires a leasehold estate, which may well be considered her separate property. Westervelt v. Aokley, 62 N. Y. 505 ; Prevot v. Lawrence, 51 id. 219, 221. The right to acquire real and personal property, and to hold it for her solo and separate use, carries with it the right to purchase upon credit ; and out of this right to purchase inevitably flows her liability for the price. Tiemeyer v. Turnquist, 85 JS". Y. 516. And the rule is now broadly stated that the married woman who buys property which becomes her own is liable for the purchase-price. lb. She is liable upon her contracts where she has the capacity to contract, aBd there can be no reason why a contract implied by law, or inferred from the circumstances, should not be just as effectual to bind her as one expressly created. Ackley v. Westervelt, 86 N. Y. 448. The liability of a married woman on her contracts will be considered in the order above given. The liability of a married woman on a contract entered into in the prosecution of her separate trade or business does not depend upon the question whether the contract will prove advantageous to her or other- wise, or upon its wisdom or folly. Oashman v. Henry, 75 N". Y. 103, 113. She may engage in business and incur the most dangerous and 40 314 HUSBAND AND WIFE. Liability of married women on contract. even rmnous liabilities in its prosecntion, and they will be enforced against her to the same extent as if she was unmarried. lb. Nor does her liability depend upon the question whether the contract was made by her in person or otherwise. As she may employ her husband to conduct her business for her she will be liable on contracts made by him in the prosecution of her business in the same manner and to the same extent that any other principal would be bound by the contracts of an agent. Bodine v. Killeen, 53 N. T. 93 ; Freiberg v. Branigan, 18 Hun, 344; Corn Exchange' Ins. Co. v. Babooch,4:% N. Y. 613, 642 ; Bmgens v. Olanoy, 67 Barb. 566. If she clothes others with the apparent power to act for and bind her, the apparent authority must be taken as the real authority, and she will be estopped from disputing it so far as others have been induced to act upon the faith of it. BodiTie V. Killeen, 53 N. T. 93. Thus, if a married woman who has been carrying on business and purchasing goods through her husband as her agent, transfers the business to the husband and he continues to carry it on in another place in the same city, she will be liable for his pur- chases, after the transfer, from persons with whom she had formerly dealt, through him as her agent, and who had no notice or knowledge of the transfer. lb. So, if a married woman owns a saw-mill, operates it through her hus- band as her agent, and clothes him with apparent authority to purchase materials to repair the mill, she will be estopped from disputing his authority to purchase such materials so far as others have been induced to act upon the faith of it, although he has disregarded her instructions as to the persons from whom to make the purchase. Treraan v. Allen, 15 Hun, 4. A married woman may be estopped by her acts and dec- larations in all matters in respect to which she is capable of acting, and is subject to all the presumptions which the law indulges against others with full capacity to act for themselves. But when she has no legal capacity to contract, she will not be e'Stopped by falsely represent- ing that she has capacity ; that is, the incapacity is not removed by the fraudulent representations, and the law will not permit her to do in- directly what she has no capacity to do directly. Bodine v. Killeen, 53 N. Y. 93. So, if a married woman employs an agent who acts for her under a written power of attorney, the terms of which are known to the persons with whom he deals, she will not be bound by acts of the agent in excess of his written authority in the absence of proof of ratification, or that he had in other transactions assumed to act or acted to her knowledge beyond the scope of his written authority. Nash V. Mitohell, Yl N. Y. 199 ; S. C, 3 Abb. N. C. 171. Whenever it is HUSBAND AND WIFE. 315 Liability of married women on contract. attempted to charge a married woman ujion a simple contract, made by another person, and barren of any indication upon its face that it was made for the benefit of her separate estate, the burden is upon the plaintiff to prove every material fact, not only the contract, and tliat it was made by her or her authorized agent, but that it was a contract she was capable of making. The law does not authorize the presump- tion, and the courts cannot assume without evidence that such a con- tract was made for the benefit of her estate. lb. To charge a married woman for work done upon her lands under a contract with her hus- band, there must be some evidence that he acted as agent and not as principal, and that the contract was for the wife, upon her credit and consent, with knowledge that her credit was pledged and that she is understood to be the contracting party. Jones v. Walker, 63 N. Y. 612; Travis v. Scriba, 12 Hun, 391 ; Avasley v. Mead, 3 Lans. 116. The agency of the husband will not be assumed without any evidence. Jones V. Walker, 63 N. Y. 612. It is not enough to charge a married woman on a contract made by her husband for the purchase of personal property, that the property was purchased for the purpose of improving her separate estate. If the property was in fact purchased for the wife, although in the name of the husband and without any antecedent authority from her, a promise to pay by the wife may be deemed a ratification of his act and equivalent to a prior authority. Travis v. Scriba, 12 Hun, 391. Slight evidence will prove a ratification of a purchase which is for the benefit of her estate. But where the husband, who is supposed to be acting for his wife in making a purchase, is, in fact, acting for himself, there is nothing to ratify ; and if she promises to pay the purchase- price she is but promising to pay the debt of her husband, and unless the promise is in writing it will be void under the statute of frauds. lb. Because a married woman has a separate estate from which she de- rives a revenue, it does not follow that she is carrying on a trade or business within the meaning of the statute authorizing a married woman to carry on a trade or business. Thus, the management by a married woman of her landed property, that is, the receipt of the rents and incomes and the disposition of them, is not the carrying on of a ^trade or business within the meaning of the statute. Nash v. Mitohell, 71 N. Y. 199. But if a married woman has a large farm, well stocked, upon which she lives with her husband who has no property, and allows him to buy and sell whatever he pleases and use her money, claiming all the property purchased by him as her own, she will be held to be carrying on the business of farming through her husband as her agent, 316 HUSBAND AND WIFE. Liability of married women on contract. and will be held liable on her note for money loaned to and received by her, although no part of it is used for her benefit. Smith v. Ken- nedy, 13 Hun, 9. So where a married woman owns a hotel and all the furniture. therein, takes charge of and supervises the work done by the servants, while the husband tends the bar, receives rents and mon- eys, pays bills, and takes charge of the out-door affairs, she is conduct- ing a business within the meaning of the statute ; and if she so conducts herself as to lead persons dealing with her to suppose and act upon the assumption that she is the actual principal in the business, she will not be allowed to disavow her liability for goods purchased for and used in the business, and to shift the responsibility for payment upon an irre- sponsible husband. Dvngens v. Olancey, 67 Barb. 566. So where a married woman owning and carrying on a farm bought a span of horses for use upon the farm and gave her note for a part of the pur- chase-money, she was held liable on the note. Smith v. Dunning, 61 N. y. 249. But it has been held that the statute authorizing a married woman to carry on a trade or business has reference to business pur- suits, mechanical, manufacturing or commercial. Wash v. Mitchell, 71 N. Y. 199. On the other hand it has been held that there is nothing in the statute which limits the kind of business which a married woman may carry on ; and tliat the choice of business is a matter of taste and not of statute regulation. Whedon v. Champlin, 59 Barb. 61. In the case last cited the wife was engaged in the business of boating on the canal, employing her husband as captain. In a number of cases it has been held that an insolvent husband may give his services to his wife, or work for his board, washing and clothing, and that his creditors have no lien upon his labor. Wheldon v. Cha/m- plain, 59 Barb. 61 ; Alleys. Deyo, 4A N. Y. 343. And it would seem that, if the husband rendered services for his wife under a contract for payment, he could not enforce the contract against her. Perkins y. Perkins, 62 Barb. 531 ; S. C, 7 Lans. 19. This seems to be an excep- tion to the general rule that a married woman is liable on her contracts made in the course of her trade or business. But a married woman is liable to persons other than her husband on contracts made by her for the commencement of a separate trade or business as well as in the prose- cution of a trade or business already commenced. Freoki/ng v. Molland,^ 53 N. Y. 422. The second class of contracts on which it is held that a married woman is liable are those which relate to her separate estate or were made for the benefit of such estate. When services are rendered for a married woman by her procurement HUSBAND AND WIFE. 317 Liability of married women on contract. on the credit and for the benefit of her separate estate, there is an im- plied agreement and obligation springing from the nature of the con- sideration, which the courts will enforce by charging the amount on her property as an equitable lien. Owen v. Oawley, 36 N. Y. 600. The rule of equity under which her estate is charged for services rendered for its benefit has reference to the subject-matter and nature of those services, and not to the contingent and ultimate gain or loss of the parties pro- curing them. Thus, a builder who erects a building on the land of a married woman at her request, a servant who tills her land for him, or an attorney who prosecutes an action for her to collect moneys due to her, renders services for the benefit of her separate estate within the meaning of the rule, although the building burns down, the land tilled proves unproductive, or the suit unsuccessful. lb. If a married woman employs an attorney to prosecute an action for a limited divorce against her husband and to obtain alimony for the support of herself and child, and also to set aside an ante-nuptial agreement made by her with her husband, and the suits are settled without the consent of the attorney, on a sum of money being placed in the hands of a trustee for the sup- port of the wife and child, she will be liable for the services upon the ground that they were rendered in creating a separate estate for her benefit. Owen v. Qrijjm, 2 Hun, 670 ; S. C, 5 Sup. Ct. (T. & C.) 687. So where goods are sold and delivered to a married woman on the faith and credit of her separate estate, the title to the goods passes to her and they become a part and parcel of her separate estate. Dingens v. Olancey, 67 Barb. 566. If a married woman purchases furniture on credit for her house upon a representation that she owned the house and was making the purchase to furnish it, she will be hable for the purchase- price upon the ground that the debt was contracted for the benefit of her separate estate, ^elty v. Long, 1 Hun, 714 ; S. C, 4 Sup. Ct. (T. & C.) 163. So where a married woman, at the time of borrowing money, declares that she wants it to pay interest due upon a mortgage upon her land, this will beheld sufficient evidence that the debt was contracted for the benefit of her separate estate. MGVeyY.CanPfeU,101S.Y.295. See Quassaic Nat. Bcmh v. Waddell, 1 Hun, 125 ; S. 0., 3 Sup. Ot. (T. & 0.) 680. Questions frequently arise as to the liability of a married woman for improvements made upon her land under a contract with her husband. As the law now is in relation to the separate property of a married woman, she may make a special contract with her husband and let jobs to him the same as though he were a stranger ; and in that case, if the husband employs men on his work, in his own name and for his own 318 HUSBAND AND WIFE. Liability of married women on contract. benefit as contractor and jobber, and in no respect on the credit of the wife, the employees will have to look to the husband for pay, and can- not hold the wife liable. But in such ease the honesty and good faith of the transaction between husband and wife should be clear, in order to shield the wife from liability. Fairbanks v. Mothersell, 41 How. 274 ; S. C, 60 Barb. 406. The wife cannot be charged for work done upon her premises, under a contract with her husband, without some evidence tliat he acted as agent and not as principal ; that the contract was for the wife, upon her credit and with her consent, with knowledge that her credit was pledged ; and that she is understood to be the con- tracting party. Jones v. Walker, 63 N. Y. 612. See AinsleyY.Mead, 3 Lans. 116. But while the agency of the husband cannot be assumed without evidence, it may be showa by circumstances, and the dealings of the wife in respect to the property and transaction in question. See Fowler v. Seaman, 40 N. T. 592 ; Fairbanks v. Mothersell, 41 How. 274 ; S. C, 60 Barb. 406 ; FosUr v. Persoh, 68 N. Y. 400 ; Qarret- son v. Seaman, 54 id. 652. Where, in an action to foreclose a lien filed under a statute giving a lien for work done or material furnished under a contract with the owner or his agent, it is sought to charge the lands of a married woman with the value of the materials furnished or work done under a contract with her husband, proof of the agency, and that the contract was in fact the contract of the wife must be given, to authorize a judgment for the plaintiff. Jones v. Walker, 63 N. Y. 612. But when the statute giving the lien merely requires that the work be done or the materials furnished with the consent of the owner, no such proof of agency or contract is required. Her consent may be implied from her knowledge ; and in the absence of any objection on her part, her silence may, as in other cases, be deemed sufficient evi- dence of consent. Husted v. Mathes, 77 N. Y. 388. See Nellis v. Bellinger, 6 Hun, 560; Burkitt v. Harper, 14 id. 581. A married woman is liable on her contract to pay rent for property leased to her, as the leasehold estate acquired by her is her separate property. Westervelt v. Ackley, 62 N. T. 505 ; Prevot v. Lawrence, 51 id. 219 ; Ackley v. Westervelt, 86 id. 448. And it matters not that she occupies the premises with her husband and family. Such occupa- tion does not alter the character of the holding or change or affect her liabihty. lb. And generally the promise of a married woman is valid when it is given as a part of a transaction of which the purpose and end is to create for her a separate estate. Herrington v. Robertson, 71 N. T. 280 ; Frecking v. Eolland, 53 id. 422. But it has been held that a married woman is not liable upon a HUSBAJSD AND WIFE. 319 Liability of married women on contract. lease, executed by herself and hixsband, of a house used as a home for the family, unless she expressly makes the payment of the rent a charge ■upon her separate estate, Eustaphieve v. Ketchum, 6 Hun, 621. When a married woman sells and conveys her land by a deed con- taining covenants of seizin, warranty, or against incumbrances, such covenants are binding and obligatory upon her, so far as to render her separate property liable for a breach of the covenants. Sigel v. Johns, 58 Barb. 620. So where she purchases property and by the terms of her deed assumes and agrees to pay a mortgage upon the premises conveyed as a part of the consideration of the conveyance, she is personally liable to pay the mortgage debt. Cashmam, v. Henry, 75 N. Y. 103. The fact that she had no antecedent estate to be benefited will not afEect her liability. lb. A married woman will also be liable on a contract entered into by her without reference to any separate trade or business which she may carry on and which does not relate to or benefit her separate estate, if the intent to charge that estate is expressed in the instrument or con- tract by which the liability is created. See ante, 313. If it is sought to charge the separate estate of a married woman for services not rendered for that estate, it must be shown that an agree- ment to charge her estate for such services was included in the original contract of hiring. An agreement by her to charge the value of past ser- vices upon her estate is insufficient. EisenlordY. Snyder, 71 N. T. 45. But it is not necessary that the agreement to charge her estate should be in writing. A charge upon the separate estate of a married woman may be created by a parol contract made upon a good consideration. Maxon v. Scott, 55 I^. T. 2±7. Thus, if a married woman having a separate estate engages board for herself and husband, promising to pay for the same, and to charge her separate estate with such payment, the contract is binding, though by parol, and can be enforced against her separate property. lb. Such an agreement is not a contract to answer as surety for the debt of her husband, but is a contract for herself as principal. "Where the promise is in fact to answer for the debt of another, then the promise must be in writing or it will be void under the statute of frauds. "Where a married woman having a separate estate purchases a sewing machine on her own account, the husband being present and refusing to have any thing to do with the transaction, she will be liable on a promissory note given by her for the purchase- price which she promised at the time to pay. Williamson v. Dodge, 5 Hun, 497. In an action upon the promissory note of a married woman, when the defense of coverture is set up in the answer, the 320 HUSBAND AND WIFE. Liability of married women on contract, production of the note, and proof of the defendant's signature, en- titles the plaintiff prima faoie to recover, upon the ground that it is apparently the note of an unmarried woman. But when upon the defense proof is made of the coverture of the defendant, the presump- tion is changed. This proof destroys the plaintiff's cause of action at common law, and if the plaintiff insists upon the liability of the defend- ant, notwithstanding her coverture, he is bound and entitled to prove facts showing the liability of the defendant under some exception to the common-law rule created by the enabling acts. Downing v. O'Brien, 67 Barb. 582 ; Hallook v. De Mu7in, 2 Sup. Ct. (T. & C.) 350. To entitle the plaintiff to recover on a promissory note of a married woman, when the defense of coverture is alleged and proved, he must show affirmatively that the debt was contracted either for the purpose of carrying on a separate trade or business, or for the benefit of her sepa- rate estate, or for her own benefit on the credit of such estate. Hal- look V. De Mwnn, 2 Sup. Ct. (T. & C.) 350 ; Second National Bank of Waikins v. Miller, 63 N. Y. 639 ; JfTash v. Mitchell, Yl id. 199. It would be otherwise if the note upon which the action was brought made its payment a charge upon her sepai-ate estate. "When a married woman executes a promissory note in the usual form, and attaches thereto another instrument declaring her intent to make the payment of the note a charge upon her separate estate, the two in- struments will be construed as one, and the note may be enforced against her. Treadvjell v. Archer, 76 N. Y. 196. But if her signature to the note is obtained by duress she will not be bound. Loomis v. RucTc, 56 N. Y. 462. A married woman will be bound by an undertaking given upon appeal in which she expressly declares her intention to charge her estate with the undertaking. Woolsey v. Brown, 74 N. Y. 82. But she will not be liable upon a bond executed by her as surety where there is nothing expressed therein showing an intention to charge her separate estate. Gosmany. Cruger, 69 'i^.Y. 87; S. C, 25 Am. Eep. 141. "Where a complaint upon a bond shows upon its face that it is the obligation of a married woman, it must also allege that it was given for some purpose which would make it binding upon her. Prima facie, the bond is a nullity, and without such averments showing her liability, the complaint does not state a cause of action. Broome v. Taylor 76 N. Y. 564. It is not necessary, however, that the complaint in an action upon the obligation of a married woman should state the fact of cover- ture, and where it does not, it need not contain any special allegations HUSBAN"D AKD WIFE. 321 Liability of married women on contract. ia regard to lier separate property or business. Broome v. Taylor, 76 N. T. 564 ; Smith v. Dunning, 61 id. 249 ; Freaking v. Holland, 53 id. 422. In that case if the defendant desires to avail herself of the defense of coverture, she must set it up in her answer. lb.; Stevensv. Bost- wick, 2 Hun, 423 ; S. C, 4 Sup. Ct. (T. & C.) 632. It has been held that where a married woman, living with and supported by her husband, purchased dry goods for use in the family, her estate was not liable for the purchase- price of the goods, although she informed the vendor that she had a separate estate and he sold her the goods, relying thereon, and although after the sale she promised to pay for them. Johnston v. Peugnet, 17 Hun, 540. In another case the facts were as follows: A married woman, having a separate estate, lived with her husband and children, and was usually supported by him. The husband had been buying groceries on credit of the plaintiff, until he refused him further credit. The wife then stated to the plaint- iff that she owned the house and lot where she lived, and wanted to trade with him " on a book," and that, if the plaintiEE would give her a book, she would not ask him to tru^t her husband, but would be responsible for every thing she got. The plaintiff sold goods to her upon this understanding, for which she afterward promised to pay. In an action against tlie wife to recover the value of the goods sold it was held that, as the defendant had not in her contract expressed an in- tention to charge her separate estate, she was not liable. Weir v. Groat, 4 Hxin, 193 ; S. C, 6 Sup. Ct. (T. & C.) 444. In another case a mar- ried woman living with her husband, and having a separate estate, gave to the plaintiff, a grocer, written orders, signed by her, in the fol- lowing form : " Please let the bearer have (naming the articles and value) and I wiU pay you." The goods were furnished on the orders and used by the wife for the support of the family. In an action against her to recover the value of the goods so sold it was held that the promise to pay did not express an intention to pay out of her sepa- rate estate, and that the wife was not liable. Baken v. Harder, 6 Sup. Ct. (T. & C.) 440 ; 4 Hun, 272. See, also, Shorter v. Nelson, 4 Lans. 114 ; McKeon v. Hagan, 18 Ilun, 65. , Since the decisions of tliese cases it has been held by the court of last resort, that if a married woman, upon her own credit, buys property which becomes her own, she is liable for the purchase-price without regard to the kind or cliar- aeter of the property acquired, and without regard to the disposition which she may make of it ; and that the fact that the property bought w^s family groceries, intended to be used for the joint benefit of the whole family, and not to be held for the sole and separate use of the 41 322 HUSBAND AND WIFE. Liability of married women on contract. wife alone, was unimportant. Tiemeyer v. Turnquist, 85 N. X. 516. In this case it was expressly held that where a married woman, upon her own credit, purchased groceries to be used in and for the joint benefit of the whole family, including her husband, she was personally liable. It has been repeatedly held in this State that, in order to charge the separate estate of a married woman with a debt not contracted for the " benefit " of her estate within the legal meaning of that term, the in- tent to charge such estate must, if the obligation is in writing, be ex- pressed in the instrument ; and while the courts have expressed regret that a different rule had not been .established, so that the signing of a note or other obligation by a married woman should be deemed sufiieient evidence of an intention to charge her separate estate, they have also declared that the rale requiring the intention to be expressed in the writing has become the settled law of the State and will not be de- parted from. Yale v. Dederer, 68 N. Y. 329. But, where the obliga- tioh of a married woman is not in writing, it is not necessary, in order to charge her separate estate with the debt, that there should be a specific agreement to that effect. The intent maybe inferred from the surrounding circumstances. Conlin v. Oantrell, ,Q4: 1^ . Y . 'ill . See Johnston v. Peugnet, 17 Hun, 540. It was once held in this State that a married woman, having a sepa- rate estate, was not liable on a promissory note made by her as surety for her husband, although the note expressed an intention to charge her separate estate. Kelso v. Tabor, 62 Barb. 125. But this case has been overruled ; and it is now well settled that a married woman may bind herself as surety for another by an instrument expressing an intention to bind her separate estate, and that it is immaterial what words are used in creating the charge so that the intention to create the charge clearly appears. Corn Exchange Ins. Co. v. BaboocJc, 42 N. T. 613 ; Woolsey v. Brown, 74 id. 82. A widow will be liable on a promise made after the death of lier husband to pay a joint and several promissory note made by herself and husband during his life-time. Wallace v. Storry, 4 Hun, 791. The liability heretofore spoken of is a personal liability, which may be enforced against the wife by the ordinary legal remedies, including an execution issued against her property generally. There are cases in which the wife incurs no personal liability upon the breach of a contract made by her, but in which property claimed by her as a part of her separate estate may be taken to satisfy a judg- ment recovered in an action upon the contract. Such cases arise under HUSBAND AND WIFE. 323 Liability of a married woman for wrongs. section one of the act of 1860, ante, 304, whicli provides in sub- stance that the property of the wife shall not be liable for her husband's debts, " except such debts as may have been contracted for the support of herself or her children, by her as his agent." This section has no reference to and makes no provision for the Hability of the wife in a personal action. " Its plain scope and purpose is to free her property from the control of her husband and the burden of his debts, and make it her sole and separate estate. This is done with a single exception, and that is, as against debts contracted by her as the agent of her hus- band for the support of herself and her children. As to such debts, the rule of a separate estate does not apply. In that case her property is left exposed to be taken for the debt of her husband, as if the statute had not been passed. But she is not made personally liable for the debt, for it is not hers, but the debt of her husband. It is not her con- tract but his. She acts as his agent and binds him, not herself. The sole effect of the pi'ovision is not to make her personally liable for her husband's debt, for not a word of such grave import is contained in the statute, but merely that the shield and protection thrown over her property against the debts of her husband shall be withdrawn in a case where his debt has been contracted, his liability incurred through her, acting as his agent and for the purpose of providing for her own sup- port and that of the children." Fnsrcn, J., in Tiemeyer v. Turnquist, ■ 85 N. T. 516, 518. See Covert v. Bughes, 8 Hun, 305; Conlin v. Gantrell, 51 How. 312; S. C. affirmed, 64 N. T. 217 ; Demoti v. Mc- Mullen, 8 Abb. (N. S.) 335 ; S. C, 1 Sweeny, 686. § 4. Liability of a married woman for wrongs. At common law the husband was liable for the torts of his wife upon the theory that the marriage subjected her person to his dominion and con- trol, so that the commission of a tort by her was, in a degree at least, the result of his fault or omission. The liability of the* husband for the strictly personal torts of the wife was not affected by the enabling acts. But, when the tort of the wife is committed in the manage- ment and control of her separate property, the rule is changed, and she only is liable. Bauin v. Mullen, 47 N. Y. 577 ; Rowe v. Smith, 45 id. 230. See Cashman v. Henry, 75 id. 103, 113. Thus, if a married woman, living with her husband and children upon lands which she owns, permits her cattle to stray upon the lands of others, she will be liable for the resulting damages, although both the land and the cattle are used for the support of the family. Bowe V. Smith, 45 N. Y. 230. So, if a married woman permits her hus- band to act as her agent in the sale of her lands, she wiU be liable for 324 HUSBAND AND WIFE. Liability of a married woman for wronga. his fraudulent representations made in effecting the sale. Bmim v. Mullen, 47 N. Y. 577. A wife is liable for a frand committed by her in dealing with her separate property, or by her husband as her agent, to the same extent as individuals in all respects capable of acting sui juris. This liability naturally results from the capacity conferred upon her to acquire, hold and transfer property, and to deal with her sepa- rate estate as if she were unmarried. But she is not liable for the tort of her husband in which she does not participate as au actor, and by which she is not profited or her separate estate benefited, by reason of a prior assent, advice or authorization by her. Vanneman v. Powers, 56 JST. T. 39. When the husband is acting for the wife as her agent, his knowledge is her knowledge in the transaction of the business which he has. in charge, and notice to him is notice to her. Adams v. Mills, 60 N. T. 533 ; Eensler v. Sefrin, 19 Hun, 564. See Du Flon v. Povjers, 14 Abb. (N. S.) 391. An action lies against a married woman who is carrying on business in her own behalf to recover damages for injuries sustained by the negligence of her servant. Gillies v. Lent, 2 Abb. (N. S.) 455. When the husband in the presence of the wife re- fuses to deliver property to the rightful owner on demand, it is a ques- tion for the jury whether the refusal of the husband was by the. author- ity, assent and direction of the wife, and whether she knew that he then and there assumed to speak for her, and assented to what he said or to his assumption to act and speak for her. When a married woman acts and speaks by her husband, his declarations and acts are hers, and she must see to it, particularly when he assumes to act and speak in her presence for her, that he speaks and acts as the law and her duty would require her to speak and act if she spoke herself. She must in such case dissent and disapprove his acts and declarations or they should be deemed hers. She must be deemed to assent when she does not dissent ; and if the jury find that the refusal of the husband to de- liver property on demand to tlie rightful owner was with the assent of the wife, as determined by the application of these principles, she may be held liable for a conversion. Lindner y. Sahler, 51 Barb. 322. If the refusal to deliver the property is an act of the wife in the presence of the husband, there is no presumption that she was acting under coercion, or any command or direction of her husband. Peak v. Lemon, 1 Lans. 295 ; S. C. affirmed, 49 N. Y. 666. And when the wife wrong- fully claims a lien upon the property of a third person as her own separate property, and refuses to deliver the property on demand to the owner, her refusal amounts to a conversion and she is liable. It is the nature and not the validity of her claim respecting her separate prop- erty which is the test of ]ier liability. lb. HUSBAND AND WIFE. 325 Liability of tlie husband for the support of the wife. § 5. Liability of the husband for the support of the wife. A husband is not liable upon the contracts of his wife entered into in re- lation to her separate estate or business. See ante, 305. The same statutes which so greatly change the common-law as to the rights of the husband to his wife's property or earnings have also ex- empted him from many of the liabilities imposed upon him by the common law. He is not now liable for the debts which wei'e contracted by his wife before her marriage, except to the extent of the property which he may have received by her. Ante, 304. So the same statutes confer upon the wife the power of making con- tracts which are binding upon herself personally, in relation to her separate property and business ; and they may be enforced against her separate property. Ante, 305. But the husband is not hable upon any such contracts. Ante, 305. The wife may be agent of the husband' in many different instances ; and such agency may be express, or it may be implied, from tlie cir- cumstances of the particular case. See vol. I, 385. A married woman has authority to hire servants, or to purchase such articles as are neces- sary for the use of the family ; and those articles will be deemed nec- essary, if they are such as are unquestionably proper to be used in the family, and if they are such as are suited to the manner of li\dng which the husband authorizes. So the husband is liable for such articles as she may purchase for herself, if they are such as are suitable in quantity and quality to the station of the wife in life, the means of her husband, and the manner in which he permits her to live. In every case, it is a question for a jury, or for the court sitting in the place of the jury, whether the ar- ticles supplied to the wife, and for which it is sought to make the hus- band liable on his implied authority to her, are or are not necessaries in this sense. The husband may show that the articles are not necesaries by prov- ing that the wife had previously supplied herself with such articles elsewhere, or that she had a sufficient quantity without making any new purchases. Seaton v. Benedict, 5 Bing. 28. If the wife has a separate estate or income, and the tradesman or mercliant furnishes the articles to the wife on her separate credit, he cannot subsequently charge the husband with the articles and recover the price of him. Bentley v. Griffin, 5 Taunt. 356 ; Stammers v. Macomb, 2 Wend. 454 ; Leggat v. Reed, 1 Carr. & Payne, 16 ; and Taylor v. Brittan, in note. A wife is not permitted to purchase, nor is a tradesman or merchant 326 HUSBAND AND WIFE. Liability of the husband for the support of the wife. authorized to fui'nish articles to the wife which are above the means of the husband, or his situation in life. If such articles are furnished to her without the consent or knowl- edge of her husband, he will not be liable to pay for them. Montague V. Benedict, 3 Barn. & Ores. 631 ; Seaton v. Benedict, 5 Bing. 28. But, if a husband allows his wife to wear articles in his presence and with his knowledge, which he would not ordinarily be liable to pay for as necessaries, and he makes no objection nor expresses any disappro- bation of the purchase, he will be liable to pay for them, for his per- mission to her to retain and enjoy them, without objection, is equiva- lent to a ratification of the purchase. Ogden v. Prentice, 33 Barb. 160. But the mere fact that the husband saw the wife wearing such articles will not be sufficient to render him liable to pay for them. If a married woman, who has suSicient clothes, goes, contrary to her husband's wish, to a watering place, and gOes to balls, and for that pur- pose orders dresses, some of them expensive and unsuitable to her hus- band's circumstances, the husband is not bound to pay for any of them, and, in an action for the price of the dresses, it is immaterial whether the plaintiff knew these facts or not, and whether the clothes of the wife had been paid for before or not ; and the fact that the husband afterward saw some of the dresses does not vary the case, if it is shown that he disapproved of the conduct of his wife in ordering them. At- Mns V. Ourwood, 7 Carr. & Payne, 756. A husband is bound to clothe his wife properly, reasonably and re- spectably, according to his wealth and position, and if he refuses or neglects to do so he will be liable to pay a tradesman or merchant who furnishes the wife with such necessary and proper articles. But, on the other hand, the law will not encourage or tolerate extravagance or waste- fulness, and a tradesman or merchant assumes the risk of proving to the satisfaction of a jury that the articles were proper or necessary. And some of the older cases are quite strongly opposed to holding the hus- band liable, if he has forbidden the tradesman from furnishing the articles. In one case Lord Hale said : " It shall not be left to a jury to dress my wife in what apparel they think proper." Manby v. Scott, 1 Sid. 122. This principle is established by numerous cases, and that the effect of it is that the implied liability of the husband may be rebutted by proof that he gave express notice not to furnish the goods. But if a husband neglects or refuses to furnish his wife with articles of actual necessity, such as wearing apparel necessary for comfort and health, or even of propriety, the husband is liable, for the law will not permit a husband to refuse to furnish necessaries in such a case, even if HUSBAND AND WIFE. 327 Liability of tlie husband for the support of the wife. he is inclined to do so. If he is pecuniarily able, it is his duty to provide comfortably for his wife and family, and if he refuses to do so, the law will interfere so far as to compel hinl to discharge that duty, or to pay those persons who perform it for him. But where a merchant or tradesman has been expressly forbidden by a husband to give credit to his wife, it will be incumbent upon the party forbidden to show affirmatively that articles subsequently supplied to the wife were necessaries suitable to her condition in life, and that the husband had neglected to furnish them. Theriott .v. Bagioli, 9 Bosw. 5T8 ; Keller v. Phillips, 39 N. T. 351 ; Barr v. Armstrong, 56 Mo. 577 ; Raynes v. Bennett, 114 Mass. 424 ; Woodward v. Barnes, 43 Yt. 330 ; Kellor V. Philips, 40 Barb. 390. The right of a wife to render her husband liable for necessaries furnished to her does not arise from a legal au- thority on her part to bind him by her contracts, but from a presumed license which arises from cohabitation. lb. If the husband rebuts this presumption by forbidding a sale to her, any person who afterward trusts her does so at the peril of proving the husband's failure to supply his wife with suitable necessaries. lb. But he is not bound to show that he took pains to learn the husband's circumstances or the wife's necessities. Eames v. Sweetser, 101 Mass. 78. If a husband has contracted with a third person for the board of his wife, and afterward publishes a notice forbidding all persons from harboring or trusting his wife on his account, the notice will not operate as a revocation of the contract, nor relieve the husband from the obliga- tion to furnish suitable support for the wife. Daubney v. Hughes, 60 N. Y. 187. A husband is legally bound for the supply of necessaries to his wife so long as she does not violate her duty as wife. He may discharge this obligation by supplying her with necessaries himself or by his agents, or by giving her an adequate allowance in money. Hav- ing done this, he is not liable to a tradesman who, without his authority, furnishes her with necessaries. Cromwell v. Benjamin, 41 Barb. 558. And see Gilma/n v. Andrews, 28 Yt. 241 ; Teblets v. Hapgood, 34 N. H. 420 ; Thorpe v. Shwpleigh, 67 Me. 235. When cohabitation ceases and the husband and wife live separately, a new state of things arises, and with it new rules of law. Such separation arises by mutual consent or by the fault of one of the parties. If the wife is compelled to leave her husband by reason of his fault, she carries with her all her rights to purchase necessaries on the credit of the husband. What conduct on the part of the husband will justify the wife in leaving his house has been the subject of frequent litigation. When 328 HUSBAND AND WIFE. Liability of the husband for the support of the wife. a man wrongfully turns his wife out of doors he sends her with credit for her reasonable expenses. Rawlins v. Vandyke, 3 Esp. 250. But it is not necessary that a husband shonld actually and literally turn his wife out of doors to render him liable for necessaries furnished to her. If his conduct is so violent, abusive, cruel or inhuman toward her as to render it necessary for her to leave his house, this is turning her out of doors or equivalent to it, so as to render the husband liable for necessaries. The fact that the wife is a dangerous woman and has offered him violence will not relieve the husband from liability for her support. Bell v. People, 6 Hun, 302. A husband who turns his wife out of doors is liable for necessaries furnished to her, notwithstanding the pendency of proceedings for a limited divorce in which alimony is subsequently decreed, and notwithstanding a notice not to sell to her on credit, or an offer to supply her on conditions which she was not bound to accept. Lord v. Thompson, 9 J. & S. 115. The rule is the same where the conduct of the husband rendered the abandonment of her home by the wife necessary and justifiable. The ill-treatment by the husband need not be of a character which threatens personal injury to the wife in order to justify her in leaving her husband's house. When a husband lived in a state of adultery with a servant girl in his own house, and the wife left his house for that reason, although the husband offered to provide for her in a separate room in the same house which she refused to accept and left him and took a separate residence, it was held that he was liable for necessaries furnished to her by the plaintiff, who knew of her separation and of the alleged cause. SyTces V. Hoisted, 1 Sandf. 483. When a wife leaves her husband under such an apprehension of personal violence as a jury shall esteem to have been reasonable, her husband is liable for necessaries furnished for her support. Houliston v. Smyth, 3 Bing. 127. If the husband by his indecent conduct renders his house unfit for occupancy by a modest woman, his wife may leave hira and pledge his credit elsewhere. Bazeley v. Forder, L. K., 3 Q. B. 559 ; Hultz v. Gihbs, 66 Penn. St. 360. And if she go an invalid to her father's house and the husband promises to support her there, and afterward publishes a notice not to trust her on his account, even if this notice came to the knowledge of the father, he can recover for her mainte- nance against the husband. Daubney v. Hughes, 60 N. Y. 187. But if one receives into his house a woman who was forced to leave her husband on account of his cruelty, he cannot recover from the husband for her maintenance if one of his motives for maintaining her was that he might have adulterous intercourse with her. Almy v. Wilcox, 110 HUSBAND AND WIFE. 329 Liability of the husband for the support of the wife. Mass. 442. So wlien a wife leaves her husband oa account of his ill- treatment, and lives separate and apart from him for a period of eight years, she has no claim against him or against his estate for moneys ex- pended by her during that period for her support and maintenance. In such a case she must obtain a limited separation and an allowance for her support, or she must purchase such articles as are necessary to her support and maintenance on his credit. Pierce v. Pierce, 9 Hun, 50 ; S. 0. affirmed, 71 N. Y. 154. But although there may have been frequent difficulties, quarrels, and even personal contests, this will not justify the wife in leaving her husband's house, nor will he be liable for necessaries furnished to her while living separately, if it appears that tlie wife was not under any apprehension of ill-treatment at the time she left, but that she left it for the purpose of making a visit, and wlien it also appears that the husband had not used violence toward her at any time within five months before she left, and she refused to return unless the husband's relations would leave the family where they were living. Blowers v. Sturtevant, 4 Denio, 46. See People v. Pettit, 74 N. Y. 320. If a wife leaves her husband without just and lawful cause, and refuses to cohabit with him, she loses all right to maintenance from him, and she cannot render him liable even for necessaries purchased while she is wrongfully living separately from him. Blowers v. Sturte- vant, 4 Denio, 46 ; GatUn v. Martin, 69 N. Y. 393 ; Harttman v. Tegart, 12 Kans. 177 ; Brown v. Mudgett, 40 Yt. 68. The husband has the right to select his own residence. People v. Pettit, 74 N. Y. 320. And if the husband selects one and offers to support tlie wife there if she will live with him, the burden is on the person furnishing her with necessaries elsewhere to show that the circumstances are such as render the husband liable. A wife cannot abandon her husband's house and home and still bind him by contracts for necessaries, pro- visions, clothing and medical attendance, except upon clear and satis- factory proof of gross abuse, neglect and misconduct on the part of her husband. Potter v. Virgil, 67 Barb. 578. A husband who is ready, able and willing to support his wife, and who gives her no just canse or occasion to abandon him, or to leave his bed and board, can- not be compelled by any private person, or by the town or county to support her elsewhere than at his own house or home, if he has one, whether she be sane or insane. Board of Supervisors v. Budlong, 51 Barb. 493. His liability for necessaries provided by other persons for her support rests entirely upon the ground of his neglect or default, 42 330 HUSBAND AND WIFE. Liability of the liasband for the support of the wife. lb. See Jolly v. Rees, 15 0. B. (N. S.) 628 ; Morgan v. HugJws, 20 Texas, 141 ; Catlin v. Martin, 69 N. T. 393. So, if the wife is guilty of adultery, this will justify the husband in turning her away, and lie will not be liable even for strict necessaries, which may be furnished to her by third persons, while she is living separately. Morris v. Martin, 1 Strange, 647 ; Manwairing v. Sands, 2 id. 706 ; Hardie v. Grant, 8 Carr. & Payne, 512. It is not necessary that the tradesman or merchant should have notice of the wife's adultery and separation, in order to discharge the husband from liability, lb. In such a case the husband must prove that the wife has been guilty of adultery, to constitute a defense ; and a verdict in his favor, against another person for criminal conversation with the wife, will not be competent evidence to prove the adultery, for the verdict is a transaction between other parties. lb. If the husband and wife live apart by consent, and he pays her a sufficient sum for her maintenance, he will not be liable for necessaries, if she has been guilty of adultery after the separation. Oragg v. Bow- man, 6 Mod. 147. And, if a wife, voluntarily, without any fault of the husband, elopes from him, he will not be liable to third persons for necessaries furnished to her while so absent, even though she has not actually committed adultery. McGutohen v. McGahay, 11 Johns. 281 ; Hintley v. Westmeath, 6 Barn. & Cres. 200. But, although a wife is guilty of adultery, if the husband still continues to cohabit with her, he will be liable for necessaries furnished to her notwithstand- ing her adultery. Norton v. Fazan, 1 Bos. & Pul. 226 ; Harris v. Morris, 4 Esp. 41 ; Robison v. Gosnold, 6 Mod. 171. If the separation of husband and wife is by mutual consent, and a specific sum is settled upon the wife, which is reasonably sufficient for her support, the husband will not be liable even for necessaries furnished to her by third persons. Todd v. Stoakes, 1 Salk. 116 ; S. C, 1 Ld. Raym. 444 ; Calkins v. Long, 22 Barb. 100 ; Baker v. Barney, 8 .lohns. 72 ; Johnston v. Sumner, 3 Hurlst. & N. 261, 270. The sum paid to the wife must be reasonably sufficient for the wife, to the satisfaction of the jury, for the mere acquiescence of the wife as to the sufficiency of the sum paid will not necessarily exonerate the husband from liability. Eodgkinson v. Fletcher, 4 Camp. 70 ; Emmett V. Norton, 8 Carr. & Payne, 506. It has been held, however, that where a husband consents that his wife may live separate from him on the terms that she shall accept a specified allowance, which is regularly paid, she has no authority to HUSBAND AND WIFE. 331 Liability of husband for torts of his wife. pledge his credit even though such allowance is inadequate. Biffin v. Bigwell, 1 Hurlst. & N. 877. The liusband must pay the stipulated sum promptly, or he will not be discharged. N'urse v. Craig, 5 Bos. & Pul. 148 ; Hunt v. De Blaqulere, 5 Bing. 550. If a husband makes adequate arrangements with a particular trades- man to furnish his wife, who lives separately, with suitable necessaries, no other tradesman, who has notice of the arrangement, can furnish such necessaries and make the husband liable to pay for them. Kim- hall V. Keyes, 11 "Wend. 33. A notice published in a newspaper which the plaintiff takes is a sufficient notice in such a case. lb. When the wife lives separate, and the plaintiff has express notice from the defendant not to furnish necessaries to the wife, the plaintiff cannot recover unless he proves affirmatively and clearly that the hus- band did not furnish her with necessaries suitable to her condition. Mott V. Comstook, 8 Wend. 544. When a wife lives apart from her husband with his consent, and there is no agreement or provision made as to the payment of a sum for her separate maintenance, the husband will be liable for such necessaries as may be furnished to her. Lock- wood V. Thom.as, 12 Johns. 248. He is not liable for any thing but necessaries, and it is a question for the jury whether the articles furnished were necessaries suitable to the condition of the husband's estate. lb. If the wife is properly provided for from her own means, or by the liberality of her friends, or by any other person, the husband will not be liable to a tradesman who furnishes necessaries to her. Liddlow V. Wilmot, 2 Stark. 86 ; Dixon v. Hurrell, 8 Carr. & Payne, 717. If a man lives with a woman and holds her out to the world as his wife, although she is not so, he will be liable to the public or to trades- men or others who furnish her necessaries in the same manner and to the same extent as though she were his wife. Watson v. Trelkeld, 2 Esp. 637 ; Rdbvnson v. Nahon, 1 Camp. 245 ; Blades v. Free, 9 Barn. & Ores. 167; Munro v. DeGhemant, 4 Camp. 215 ; Qarr v. King, 12 Mod. 372 ; Ryan v. Sams, 12 Ad. & El. (N. S.) 460 ; Johnston v. Allen, 3 Daly, 43 ; S. C, 39 How. 506 ; 6 Abb. (IST. S.) 306. A husband is liable for such necessaries as are furnished to his wife during the period of his insanity. Read v. Legard, 6 Exch. 636. § 6. Liability of husband for torts of his wife. At common law, the husband is liable to be sued jointly with his wife for all torts com- mitted by her prior to or during coverture. Marshall v. Oakes, 51 Me. 308 ; Kowing v. Manly, 49 JST. Y. 192 ; S. C, 13 Abb. (N. S.) 332 HUSBAND AND WIFE. Liability of husband for torts of his wife. 275 ; 10 Am. Eep. 346. If they were committed by his order, he alone is liable. If committed by her in his presence and company, the law presumes that he ordered the act done, though this presump- tion may be rebutted by evidence. See Brazil v. Moran, 8 Minn. 236 ; Ball V. Bennett, 21 Ind. 427 ; McElfresh v. Kirleendall, 36 Iowa, 224; Mulvey v. State, 43 Ala. 306 ; Commonwealth v. M%msey, 112 Mass. 287 ; State v. Oleames, 59 Me. 298 ; 8 Am. Eep. 422 ; Miller v. Switzer, 22 Mich. 391. The husband is liable for the acts of the wife if she incurs a penalty which ispi-ovided by statute for specified wrong- ful acts. Marselis v. Seaman, 21 Barb. 319 ; Com,, of Excise of Wayne Co. v. Keller, 20 How. 280; Hasbrouok v. Weaver, 10 Johns. 247. By statute, in many of the States, the common-law rule has been abrogated or modifed. Thus, under the Illinois statutes giving to the wife the control of her separate property, and of her own earnings, the husband is not-liable for torts of the wife committed during coverture when he was not present, and in which he in no manner participated. Martin v. Rohson, 65 111. 129 ; S. C, 16 Am. Eep. 578. And see Austin V. Cox, 118 Mass. 58 ; Burt v. McBain, 29 Mich. 260. In New York, the husband is still liable for the personal torts of his wife, but he is not liable for her torts committed iu the management and con- trol of her separate property. Baum v. Mullen, 47 N. Y. 577 ; Rowe V. Smith, 45 id. 230. If a husband and wife live together on premises forming a part of the separate estate of the wife, and a pit on the premises is left uncov- ered, and by reason of this negligent act a third person is injured, the husband cannot be held liable for the damages. Fiske v. Bailey, 51 N. Y. 150. And if the wife owning lands and cattle suffers them to stray upon the lands of another, she and not her husband is liable for the trespass. Rowe v. Smith, 45 N. Y. 230. It is no longer necessary or proper to join the husband as a party with the wife in any action or special proceeding affecting the separate property of the wife. Code Civil Proc, § 450. CHAPTER XXI. PAEENT AND CHILD. Section 1. Liability of parent to maintain children. It is the duty of a parent to maintain and educate his children during their in- fancy and youth, and to make such reasonable provision for their fu- ture usefulness and happiness as his circumstances will permit. There are some moral duties that parents ought to discharge toward their children which are not the subject of legal cognizance. Though it is those duties only which the law will enforce which will be noticed at this time. The parent is responsible for bringing the children into the world ; and during their infancy and youth they must be provided for by some one, as they are entirely helpless at that time. Their wants and necessities must be supplied or they must suffer or perish ; and the law declares that it is the legal duty of the parent to properly maintain and educate his infant children. This liability continues until the child is able to provide for its own support, but the duty does not extend beyond a necessary support. The statute and the common law both provide for the enforcement of this duty, if parents neglect or refuse to discharge it. The statute does not limit the liability of the parent to the time while the child is an infant, for if it is blind, old, lame, impotent or de- crepit, so as not to be able to support himself by work, the parent, if of sufficient ability, may be compelled to relieve and maintain him. 2 E. S. 836, §§ 1, 2, 3, etc., 5th ed. So the parent may be compelled to send infant children to school, if they are between the ages of five and four- teen years, and if they are permitted to wander in the streets or lanes of a city or incorporated village, without any lawful occupation. 2 E.. S. 378 ; Laws 1858, chap. 185. Under the provisions of the act of 1874, known as the " Compulsory Education Act, " " All parents, and those who have the care of chil- dren, shall instruct them, or cause them to be instructed in spelling, reading, writing, English grammar, geography and arithmetic. And every parent, guardian or other person, having control and charge of any child between the age of eight and fourteen years shall cause such child to attend some public or private day-school, at least fourteen weeks in each year, eight weeks, at least, of which attendance shall be con- 334 PAEENT AND CHILD. Liability of parent to maintain children. secutive ; or to be instructed regularly at home at least fourteen weeks in each year, in spelling, reading, writing, Enghsh grammar, geography and arithmetic, unless the physical or mental conditon of the child is such as to render such attendance or instruction inexpedient or im- practicable." Laws of 1874, chap. 421, § 1. But the more frequent question is, how far the common law extends the liability of a parent to third persons for articles furnished by them to his children under a claim that they were necessaries. Where a pa- rent has neglected or refused to provide necessaries for his infant chil- dren, and those necessaries have been supplied by a stranger, and where the courts have held the parent liable to pay for such articles, they have still differed among themselves upon the question whether the parent's liability arose upon an implied agency^ which authorizes the child to purchase necessaries, or whether the liability is a legal one, independ- ent of any implied agency. But in those cases in which necessaries are furnished to an infant who is incapable, on account of its tender years, or by reason of disease of body or mind, from making any legal con- tract, or from acting in any manner as the agent of the parent, it is evi- dent that the liability of the parent cannot be put upon any ground ex- cept that his liability is a legal one which arises from the nature and circumstances of the case. And in such cases the li'ability of the parent must be deemed to be a legal one, independently of any contract, for, if it were otherwise, the infant would be liable to suffer for want of assistance, because it could not make any contract by which to provide for itself. For all practical purposes, it is unimportant which is the true ground of liability, as either of them compels the parent to pay for such necessaries as may have been supplied for his children, if he has neglected or refused to furnish them himself. The legal liability of a parent does not extend beyond compelling him to provide necessa- ries for his children. And if articles which are not necessaries are fur- nished to infant children, the authority of the parent to make the pur- chase must be proved, or he is not liable. If the articles supplied are necessaries, the father' s authority for the purchase may be presumed, or the right to supply them may be given by the law, provided the parent does not supply them himself, or is not ready or willing to supply them. But where a parent supplies his children with necessaries, he will not be liable to a third person, even if he furnishes the children with arti- cles which are strictly of the character of necessaries, unless it is done by the authority of such parent. One who seeks to make a parent lia- ble for the purchases of a child must either show an express promise to pay therefor, or a failure on the part of the parent to discharge the ob- PAKENT AND CHILD. 335 Liability of parent to maintain children. ligation to provide necessaries for the infant, and that tlie goods supplied were in fact necessaries. Smith v. Church, 5 Hun, 109 ; Freeman v. BoUnson, 38 N. J. L. 383 ; Carey v. Barrett, 4 Oregon, 171. The only reason y^hj a parent is ever liable to strangers for supplying his children with necessaries is because he has himself omitted to dis- charge that duty, and the law will provide for the wants of the children by authorizing strangers to discharge the duty which the parent has omitted. Matter of Ryder, 11 Paige, 185. But when the parent is not thus in fault, the reason of the rule fails, and the rule itself then ceases. "Where an infant lives with the father, or under his control, his judg- ment as to what are necessaries will be so far conclusive that he will not be held liable for any articles furnished to the infant, unless they are such as are required to relieve him from absolute want. Yan Valh- inburgh v. Watson, 13 Johns. 480; Poock v. Miller, 1 Hilt. 108. "Where an infant does not live with the parent, but has voluntarily left the parent's house, against his consent and in violation of his express commands, the parent will not be liable to a third person who has furnished such infant with articles which are strictly necessaries. Ray- mond V. Loyl, 10 Barb. 483 ; Shelton v. Springett, 3 J. Scott, 452. So if an infant leaves his father's house against the wishes but with the consent of the parent, the latter will not be liable to pay the expenses which are incurred in attending the infant during a dangerous illness. Johnson v. Oihson, 4 E. D. Smith, 231. So if a parent is willing to support his infant child, and a relative without his request, but with his assent, receives the child into his family, and supports it as his own, the parent is not liable for such support upon an implied promise to pay. Chilcott V. TrirrMe, 13 Barb. 502. But wliere a father has permitted his minor son to buy goods on his credit, a party knowing that fact, and without notice of any change of relation or of circumstances to put him on inquiry, may recover against the father for goods sold to the son, although the son has left the father. Murphy v. Ottenheimer, 84 111. 39 ; S. C, 25 Am Eep. 424. And where a child without authority purchased certain goods for himself on his mother's account, who, when the bill was presented to her, at first hesitated, but finally promised to pay it ; it was held that, by so doing, she ratified his act and was liable for the price of the goods. Smith v. Church, 5 Hun, 109. But see Freeman v. Rohi/nson, 38 N. J. L, 383. The plaintiff received into his family the infant granddaughter of his wife, when very young, and supported her for several years under the agreement that she should live with him till of age. The grand- 336 PARENT AND CHILD. Liability of parent to maintain children. mothei- having died, the father of the infant removed the infant from the plaintiff's family against his will, and it vras held that the plaintiff could not maintain an action for the support of the child. Thorp v. Bateman, 37 Mich. 68 ; S. C, 26 Am. Rep. 497. A parent cannot be made liable to pay a third person for necessaries furnished to an infant child, until it is clearly proved that the parent has neglected to furnish such articles as were necessary for the infant in his condition of life. Olinton v. liowlomd, 24 Barb. 634. The lesral term " necessaries " is not restricted to the absolute necessities of life, such as meat, drink, apparel, lodgings, and medicines. Shelton v. Pendleton, 18 Conn. 417 ; New Hampshire Fire Ins. Co. v. Noyes, 32 N. H. 345. It also embraces articles suitable to the condition, rank, fortune and general needs of the infant. Strong v. Foot, 42 Conn. 203 ; Mohney Y.Evans, 58 Penn. St. 80 ; Barker v. Hibbard, 54 N. H. 539 ; S. C, 20 Am. Rep. 160 ; Ghapple v. Cooper, 13 M. & W. 252. But in general, articles of mere luxury are excluded from those things de- nominated " necessaries ", though luxurious articles of utility are in some cases allowed. Vo.; Ryder v. Wo>riiwell,'L.'R., 3 ^xch. 93; Bryant V. Biohardson, id. 93, note. And see 5 Wait's Act. and Def. 65. In determining whether articles are necessaries, a jury, or the justice in their^place, ought to take into account the means of the parent, his condition in life, and the wants of the infant. The wants of an infant of twelve years, or one of delicate health, are materially different from those of a strong, healthy person who has nearly attained full age. And, if an infant is able by proper exertions to provide wholly or partially for himself, the parent ought not to be held to the same liability that he would be for the wants of a feeble or young child. The common-law liability of a father to maintain his child ceases as soon as the child becomes of age, without any reference to the wealth of the father. A father is obliged to maintain his infant children if he is pecuni- arily able to do so, though the rule now observed, and that formerly practiced, differs in this respect, that the courts will now interpose and' make an allowance out of the estate of the infants, if that is abundant and that of the parent is limited. Matter of Kane, 2 Barb. Ch. 375 ; Newport V. Cooh, 2 Ashmead, 332. And, if the estate of the parent is considerable, and sufRcieut to maintain infant children, yet, if their estate is larger than that of the parent, the court will make an allow- ance out of the estate of the infants toward their own support. Jer- voise V. Silk, Cooper's Eq. 52. PAKENT AND CHILD. 337 Liability of parent to maintain children. When a minor has a separate estate, the father, as natural guardian, has a right to apply so much of the income therefrom as may be neces- sary to defray the expense of giving to such minor child a good educa- tion ; and a court of equity, in stating his account, will allow him a reasonable credit for such expenditure, and will further allow him a credit for whatever portion of such income he has beneficially applied to the support of such child during the period of minority. Holtz- man v. Gastleman, 2 MacArthur, 555 ; Trimhle v. Dodd, 2 Tenn. Cli. 500. But, in general, a father is bound to support his infant children, and is not entitled to have the income of their estate appropriated for their support without an order of some proper court, based upon his inability to support them properly. Mo Knight v. Walsh, 23 IST. J. Eq. 136 ; Stevens v. Stevens, id. 296 ; Buckley v. Howard, 35 Tex. 565 ; Smith v. Oeortner, 40 How. 185. In a recent proceeding be- fore the surrogate of the city and county of New York, it appeared that the father of minor children, acting as administrator of his wife's estate, had used some of the assets of the estate, to which the children would be entitled, in their support and maintenance, although he had not been appointed their guardian ; and the surrogate held that it was a mistake to suppose that a parent is under obligation to support his minor children where they have property that may be applied for that purpose. Matter of Marx, 5 Abb. K. C. 224. A mother is under no legal obligation to support children who have sufficient property of their own for that purpose. Elliott v. Gibbons, 30 Barb. 498 ; Haley v. Bannister, 4 Mad. Ch. 146 top, or 2Y5 margin. The statute which requires parents or children to support each other when poor, decrepit, etc., extends only to relatives by blood. And, therefore, a husband is not liable for the support of the children of his wife by a former husband. Oay v. Ballon, 4 Wend. 403 ; TuT)b v. Harrison, 4 Term R. 118 ; Cooper v. Martin, 4 East, 76. But if he holds them out to the world as members of his own family, he stands in loco parentis to them and incurs the same hability with respect to them that he is under to his own children. Mowbry v. Mow- Iry, 64: HI. 383 ; St. Ferdinand, etc., Academy v. Bohi, 52 Mo. 357. A son-in-law is not legally bound to support his wife's mother. Anonymous, 3 N. T. Leg. Obs. 354. Under our statutes a child is bound to support his maternal as well as his paternal grandparents. JE/x parte Hunt, 5 Cow. 284. But this liability is created solely by statute, and it can be enforced in no other mode tlian that prescribed by it ; and, therefore, a promise by a child to pay for necessaries which had been previously furnished, without his request, by a third person to his 43 338 PAEENT AND CHILD. Education of children. indigent parent, is not implied by law ; and an action to recover for necessaries so furnished cannot be maintained. Edwards v. Davis, 16 Johns. 281. And in such a case even an express promise will not render the child liable, because there is no legal and sufficient consideration to sup- port the promise. Mills v. Wyman, 3 Pick. 207 ; Cook v. Bradley, 7 Conn. 57; Ingraham v. Gilbert, 20 Barb. 151. When the liability of a parent for articles furnished to his infant children is not put upon the ground of a legal obligation to pay for the articles as necessaries, but is placed upon the ground that the infant was the legally authorized agent of the parent for the purpose of making such purchase, the authority of the child to act, or its agency, must be clearly established, before a recovery can be had against the parent. The agency need not be by an express authority, but may be implied from circumstances. And, if it is shown that an infant has or- dered clothes of a person, and that the parent subsequently paid for them without objection, this will be evidence from which a jury may infer an authority from the parent to the child to make subsequent similar purchases from the same person. Henry v. Belts, 1 Hilt. 156. And if an infant purchases articles which are necessaries, in the situa- tion in which the parent has placed him, a jury may infer an authority to make the purchase. Baker v. Keen, 2 Stark. 501. But a parent is not liable for a wrongful and willful act of his infant child, as, for in- stance, where he wrongfully and willfully sets the parent's dog upon the hog or cow of a third person without the parent's knowledge or approval. Tifft v. Tifft, 4 Denio, 175. An infant is liable for his torts the same as an adult. Dow v. Clark, 1 Cr. & M. 860 ; Elwell v. Martin, 32 Yt. 217 ; ScoU v. Watson, 46 Me. 362. And is, therefore, liable for an unintentional assault. Conway V. Reed, 66 Mo. 346 ; S. C, 27 Am. Eep. 354. Where a boy thirteen years of age, in sport but wantonly, threw a piece of mortar at another boy, which accidentally hit a third boy and injured his eye, he was held liable in damages to the latter in an action of an assault and bat- tery. Peterson v. Raffner, 59 Ind. 130 ; S. C, 26 Am. Eep. 81. The remedy of the injured party is against the child alone. Edwards v. Grume, 13 Kans. 348 ; Chandler v. Deaton, 37 Tex. 406 ; Paulin v. Howser, 63 111. 312. But, if an injury is caused by a son through neg- ligence or unskillfulness while acting for his father, the latter will be liable to the same extent as for the fault of any other servant. Sirohl V. Levan, 39 Penn. St. 177. § 2. Education of children. It is the highest moral duty that a PAEENT AND CHILD. 339 Of the rights of parents. parent owes to his cliildren to see that they are properly educated. And, in this State, that duty is generally discharged in a proper man- ner. In a country where the highest honors of the State are conferred i;pon those who are most worthy and intelligent, every parent will naturally wish to enable his children to be competitors for the prize. But if this is not his ambition, the ordinary pursuits of life all give the advantage to those who are educated in such a fnanner as to be competent to transact business intelligently and efficiently. Again, edu- cation in this State is obtained at a nominal expense, under our excel- lent system of free schools, and that parent must be unfeeling and de- graded indeed, if he intentionally or negligently omits to confer upon his children the best education which he is able to. "A parent who sends his son into the world uneducated, and without skill in any art or science, does a great injury to mankind, as well as to his own family, for he defrauds community of a useful citizen, and bequeathes to it a nui- sance." 2 Kent's Com. 195, orig. page. Education in the useful branches of learning may be regarded as one of those necessaries which a parent is bound by law to provide for his infant children. And if he neglects or refuses to discharge that duty, he will be liable to any person who gives proper and valuable instructions to such infant in any branch of learning which is useful and necessary to a citizen in his station of life. § 3. Of the rights of parents. The rights and duties which exist between the parents and children are reciprocal or correlative. The parent is under an obligation to maintain and educate his infant children. And, on the other hand, such children owe to their parents obedience and assistance during their infancy, and gratitude and reverence during their entire lives. And the law enforces ar perform- ance of a portion of these duties. For a parent is legally authorized to enforce such a discipline as may be requisite for a proper discharge of the duties of his trust. A father is entitled to the custody and the services or earnings of his infant children, and this is entirely just and reasonable, since the law compels him to maintain and educate them. The general rule is, that whatever an infant child earns by rendering services for another belongs to the parent, who may sue for it in his own name. Shute y. Dorr, 5 Wend. 204 ; Letts v. Brooks, Hill & Denio, 36. A mother, in case of the father's death, has the same right to the services of a minor child that the father would have if living. Oray v. Durlcmd, 50 Barb. 100 ; S. C. affirmed, 51 K T. 424 ; Furman V. Van Sise, 56 id. 435 ; S. C, 15 Am. Eep. 441 ; 8im,;pson v, Buoh, 340 PAEENT AND CHILD. Of the rights of parents. 6 Lans. 337 ; Hammond v. Corlett, 50 JST. H. 501 ; S. C, 9 Am. Eep. 288 Mathewson v. Perry, 37 Conn. ^35 ; S. C, 9 Am. Eep. 339. But it has been held that the mother of a minor child, after remarrying, is not entitled to recover for the services of such child in the absence of an agreement to pay her therefor. Hollingaworth v. Swedenborg, 49 Ind. 378 ; S. C, 19 Am. Eep. 687. A father has not an unqualified right to his son's wages, superior to all offsets and equities betvsreen the son and the employer. And v^here an employer vpas sued by the father of his minor servant for wages earned by the latter, and claimed by the plaintiff in his right as father, the defendant was allowed, under the circumstances, to show that the son had embezzled money from the business, amounting to more than the unpaid wages. Schoenberg v. Voight, 36 Mich. 310. And see Oifford V. Kollack, 3 "Ware, 45. It has been held that a father might bind his infant son as an ap- prentice to another person, and that a contract of that kind would be valid so as to entitle the father to the price agreed to be paid for the infant's services, and so as to render the parent liable for damages if such infant did not remain and perform the agreed service, if the parent did not attempt to require such a performance. 'Vom Dorn v. Yoimg, 13 Barb. 286 ; Fowler v. Eallenbeck, 9 id. 309. But a father cannot now bind the infant as an apprentice, without the mother's written consent if she is living. Ante, 305; Laws 1862, chap- 172, § 6. A plaintiff who sues to recover for services rendered by an infant, and claims to recover on the ground that the infant is his son, must prove that the child is his, and that it is legitimate, if the defendant's answer denies that the plaintiff is such father. ArTnstrong v. McDonald, 10 Barb. 300. But when the infant is called as a witness, and he swears that the plaintiff is his father, and the proof shows that the defendant sent word to the plaintiff to come or send for the money earned, and that he will pay, etc., this will be sufficient to authorize a jury to find in favor of the plaintiff. Haight v. Wright, 20 How. 91. When a child performs services for the parent, and resides in his fam- ily during infancy, and then continues to reside in his family for several years after attaining the age of twenty-one years, and to perform simi- lar services, but without any agreement for compensation, the law will not imply a promise that the parent shall pay wages. Dye v. Kerr, 15 Barb. 444 ; Barrett v. Barrett, 5 Oregon, 411 ; Priokett v. Prichett, 20 ]Sr. J. Eq. 478 ; Wilcox v. Wilcox, 48 Barb. 327 ; Sullivan, v. Sullivarh, 6 Hun, 658 ; Matter of Teyn, 2 Eedf. 305 ; Gallaher v. Vought, 8 Hun, PAEENT AND CHILD. 341 Of the rights of parents. 87 ; Thornton y. Grcmge, 66 Barb. 507. And see Cropse}/ v. Sweeney ^ 27 id. 310. But when a father promised his infant daughter that he would pay her a specified sum per week for such labor as she might subsequently perform for him, and the daughter worked for him dui'ing her infancy, and for several years thereafter, it was held that she was entitled to recover wages at the stipulated price, for the services ren- dered after she became twenty-one years of age. Fort v. Oooding, 9 Barb. 371 ; Titman v. Titman, 64 Penn. St. 480. And see Johnson v. Silslee, 49 N. H. 543. A stepfather is not bound by law to maintain the infant children of his wife by a former husband, nor is he entitled to claim the custody or services of such children, yet if he assumes the relation of a parent toward them, and receives them into his family, and supports and edu- cates them in the same manner he does his own children, he will not be liable to them, upon any implied promise, for any services rendered by them while they were infants, notwithstanding the value of their ser- vices may exceed the expenses of their education and support. Williams V. Eutchvnson, 3 N. T. 312 ; S. C, 5 Barb. 122; Hill v. Ean/ord, 11 Hun, 536 ; Wells v. Perhins, 43 "Wis. 160. A father may emancipate his infant child, or the child may, by the father's consent, be entitled to his own services. McCoy v. Huffman, 8 Cow. 84 ; Shute v. Dorr, 5 "Wend. 204 ; Burlingame v. Burlingame, 7 Cow. 92. If an infant makes a contract to render services for another person, and upon an agreement that he is to receive the wages earned, and the father knows of the arrangement, and makes no objection, there is an imphed assent that the infant shall have his own earnings. Armstrong V. McDonald, 10 Barb. 300. If a father leaves his infant son, and remains absent for several years, without contributing to the infant's support or education, and the in- fant in the meantime manages his own affairs, and earns wages, the emancipation of the child may be presumed, and he may recover for the services rendered during his infancy. Canovarr. Cooper, 3 Barb. 115. "Whether a parent intends to emancipate his child is a question of fact^ and it may be inferred from circumstances in the absence of direct proof, lb. Dierher v. Hess, 54 Mo. 246. A father, acting in good faith, though insolvent, may make a valid gift to his minor son of his time and fu- ture earnings. Atwood v. Holcomh, 39 Conn. 270 ; S. C, 12 Am. Eep. 386; Johnson v. Silsbee, 49 N". H. 543. And if a father, while able to support his minor son, forces him to labor abroad for a livelihood, he is not entitled to his earnings. The law then implies an emancipation • and the son may maintain an action for money had and received, if the 342 PAEEITT AND CHILD. Of the riglits of parents. father appropriates tlie earnings to another use than that for which the son delivered them to him. Farrell v. Farrell, 3 Houst. (Del.) 633. When a parent neglects or refuses to maintain or educate his infant child, he fails to perform that duty which entitles him to claim the ser- vices of such child, and justice itself demands that the infant should have such wages as he may earn, for the purpose of providing himself with those necessities which his parent has neglected to furnish. " It shall be necessary for the parents or guardians of such minor children as may be in service to notify the party employing such minor, within thirty days after the commencement of such service, that said parent or guardian claim the wages of said minor, and in default of such notice payment to such minor shall be valid. " Laws 1850, chap. 266. And see Clinton v. Rowland, 24 Barb. 634. Where a father made a contract for his own services and those of an infant son, in the business of selling goods as clerks, and services were rendered for the defendant under this contract, and the father permitted the son to receive such of his wages as were collected, and received pay from him as a boarder, it was held that the father had a right to main- tain an action against the defendant for refusing to employ and pay the wages agreed ; and that the father was entitled to recover any unpaid wages which the son had earned, as well as the damages resulting from a refusal to employ him. Wentworth v. Buhler, 3 E. D. Smith, 305. The cases in which a parent has been permitted to recover damages for an injury done to his infant child seem to he limited by the prin- ciple that he must have suffered some loss of service of the infant, or must have sustained some other injury, to maintain the action. If a personal injury to an infant renders him unable to labor, or involves expense in his care and cure, the pecuniary loss falls upon his father, who is entitled to his services and is responsible for his maintenance, and for such loss the law gives him a remedy by action against the wrong-doer. Meroer v. Jackson, 64 111. 397. For an injury to a child caused by the negligence of the defendant, the parent can recover for all loss of service during the minority of the child, arising therefrom, as well as for medical and other necessary expenses, and the child may recover for all subsequent disability, if any. Traver v. Eighth Ave. R- B. Co., 6 Abb. (JSr. S.)46 ; S. C, 4 Abb. Ct. App. 422 ; 3 Keyes, 497 ; Oakland R. R. Co. v. Fielding, 48 Penn. St. 320. And see Sy^es v. Lawlor, 49 Gal. 237 ; Dennis v. Cla/rk, 2 Gush. 347. It has been held by the court in Missouri, that for a willful battery of a minor child the father can recover both compensatory and vindictive damages. Kling- man v. Holmes, 54 Mo. 304. But, ordinarily, he can recover only for his PAKENT AND CHILD. 343 Of the rights of parents. pecTiniary loss, and nothing will be given him on account of the physi- cal suffering of the child. Sawyer v. Sajier, 10 Kans. 519 ; Fay v. Parker, 53 JS". H. 342 ; S. C, 16 Am. Rep. 270. In an action by a father for a grossly indecent assault upon his infant daughter, the measure of damages is the actual loss which the plaintiff has sustained ; and he cannot recover exemplary damages, because an action lies for those in the infant's own name. Whitney v. Hitchcock, i Denio, 461. In such a case a father cannot release or compromise the right of action of such infant daughter, even though he has commenced a suit in her name to recover her damages. Loomis v. Gline, 4 Barb. 453. If an infant child is wrongfully expelled from a common school by the trustees of the district, the xight of action, if any, must be in the name of the child and for its benefit, and no action will lie in the name of the father. Stephenson v. Hall, 14 Barb. 222. As to the statutory action for the loss of service when a child has been killed by negligence, see 2 Wait's Act. and Def. 471-480. The right of action given to a parent under the " Civil Damage Act " (Laws of 1873, chap. 646) will be considered in a subsequent chapter. A father may maintain an action for the seduction of his infant daughter, although she is not in his actual service at the time of the seduction, and although she was actually in the service of another person at that time. Mulvehull v. Millward, UN". Y. 343 ; Martin V. PaA/ne,2 Johns. 387; Nickleson v. Stryker, 10 id. 115; Clark V. Fitch, 2 Wend. 459. To maintain the action in the name of the father, it is sufficient to show that he was legally entitled to his child's services at the time of the seduction. lb. But, when the child is of full age, the father is not entitled to maintain the action unless he shows that the relation of master and servant actually existed at the time of the injury. Postlethwaite v. Parkes, 3 Burr. 1878 ; Nickleson V. Stryker, 10 Johns. 115. A stepfather cannot maintain an action for the seduction of his step- daughter who does not reside with him, but is in the actual service of another person at the time of the seduction. Bartley v. Richtmyer, 4 N. T. 88. But, if such stepdaughter is adopted by the stepfather, and is supported by him, and she resides in his family, he may maintain an action for her seduction. Braoy v. KiVbe, 31 Barb. 273. If a father binds his infant daughter out as an apprentice, he cannot maintain an action for her seduction, although it may be accomplished by the person to whom she was bound, Daim, v. Wycoff, 7 N. Y. 191, unless the defendant procured her to be indentured to him as a servant, as a means of effecting the seduction. Dain v. Wyckof, 18 N. Y. 45. 344 PAEENT AND CHILD. Oi the rights of parents. An action cannot be maintained in the name of an infant for an injury done to him, when it appears that he was of such tender years as to want proper discretion in taking care of himself, and when the injury was done by running over him in a public highway, in the absence of any proper person to take care of him, and when the injury was not done voluntarily or by culpable negligence. Hartjleld v. Eoper, 21 Wend. 615 ; Lynch\. Murdin, 1 Ad. & El. (N. S.) 30. See Honegsherger v. Second Avenue B. R. Co. 2 Abb. Ct. App. 378 ; S. C, 1 Keyes, 5T0 ; 33 How. 193 ; Flynn v. Button, 4 Daly, 552 ; S. C, 43 How. 333 ; Fallon v. Central Park, etc., R. R. Co., 64 N. T. 13; TJiurler v. Harlem, etc., R. R. Co., 60 id. 326 ; Evamsville, etc., R. R. Co. V. Wolfe, 59 Ind. 89. A parent cannotrecover damages for the loss of the services of his infant son by reason of the injury done to the child, if the latter, by his negligence, caused the injury. Oilligan Y. N. T. and Harlem R. R., 1 E. D. Smith, 453.' The right of action for negligence will be considered hereafter. CHAPTER XXII. COMMON COUNTS. Seotion 1. Goods bargained and sold. An action by a vendor against a purchaser of goods wlio refuses to accept and receive, or to pay for them, is materially different from an action to recover the price of goods sold and delivered. In an action for a breach of contract in not accepting and paying for the goods, the plaintiff must, in the first place, show that a valid contract of sale was made between the parties. In an action for goods sold and delivered, the plaintiff must show an actual delivery of the goods, or what is equivalent to that, or he will fail in his action. Evans v. Harris, 19 Barb. 416. The count for goods bargained and sold lies, where upon a sale of goods the property has passed to the purchaser, and the contract has been completed in all respects except delivery, and the delivery was not a part of the consideration for the price or a condition precedent to its payment. Atkinson v. Bell, 8 B. & C. 277 ; Stearns v. Washburn, 7 Gray, 187. It is not essential to show that there was any thing more than a valid contract of sale, and a performance by the plaintiff of his part of the agreement. Scott v. Engla/nd, 2 Dowl. & L. 520. Thus, when an article is manufactured, and notice of that fact is given to a party who has ordered it, it becomes the property of the party ordering it, subject to the lien of the manufacturer for the price, and a right of action at once accrues for the price. Higgins v. Murray, 4 Hun, 565 ; Muckey v. Howenstine, 3 Sup. Ct. (T. & C.) 28. But the count for goods bargained and sold will not lie if the property has not passed. When the title to property passes on a contract of sale has been discussed in another chapter. See Sales, ante, 15. If the goods have been actually delivered, the usual count for goods sold and delivered will be sufficient, as well as the proper mode of de- claring, and the value of the goods wiU be the amount recovered. But, if the goods have not been delivered, in consequence of the refusal of the defendant to accept and pay for them, or to accept them as agreed, the complaint must be special, and the recovery in such action will be for the recovery of such damages as the law awards for the defendant's breach of his agreement. This will ordinarily be the difference between the contract-price and 346 COMMON COUNTS. Goods bargained and sold. the value of the property at the time of the breach. Hewitt v. Miller, 61 Barb. 567 ; JJavemeyer v. CunniTigham, 35 id. 515 ; Norton v. Wales, 1 Eob. 561 ; Sanborn v. Benedict, 78 111. 309 ; Pittsburgh, etc., E. R. Co. Y. Reck, 50 Ind. 303 ; S. C, 19 Am. Eep. 713 ; Davis v. Adams, 18 Ala. 264; Hall v. Pierce, 4 W. Ya. 107; Barrow v. Armand, 8 Q. B. 604 ; Pollen v. Le Roy, 30 N. Y. 549. When there is a valid contract of sale the vendor may retain the possession of the goods until the purchase-price has been paid, but the contract to pay the price is nevertheless in full force as against the de- fendant. If the pm-chaser refuses to pay the price and take the goods, the vendor may retain them in his possession, and still bring his action against the purchaser for his refusal to take and pay for them. And in such an action, if the plaintiff establishes that the goods were bargained and sold to the defendant, he may recover a judgment for the purchase-price, and retain possession of the goods until such judg- ment is collected. Slade v. Morley, 4 Coke, 92, b; Orr v. Bigelow, 20 Barb. 21 ; Bement v. Smith, 15 Wend. 493 ; Chamberlain v. Farr, 23 Yt. 265 ; Eanna v. Mills, 21 Wend. 90. The vendor, however, is not compelled to retain the goods in such a a case ; he may resell them on due notice to the purchaser, and then re- cover the difEerence between the contract-price and that for which the goods were sold. Crooks v. Moore, 1 Sandf. 297 ; Sands v. Taylor, 5 Johns. 395. It is not necessary on such resale that the goods should be sold at auc- tion, it is sufficient if the vendor has them sold in good faith, and in the usual manner of selling such goods. lb. Nor is it necessary that the vendor give notice to the purchaser of the time and place of sale. Notice of intention to sell in case the contract is not performed is aU that the law requires. McGibhon v. Schlessioiger, 18 Hun 225 • DiMistan V. Mo Andrew, 44 N. Y. 72 ; Lewis v. Orieder, 49 Barb. 606 ; S. C, 51 N. Y. 231 ; Pollen v. Le Roy, 30 id. 549. See ante, U. It is not enough for the plaintiff to show merely that there was a valid contract of sale, but he must also show that he has fully performed the contract on his part. If, by the terms of the contract of sale he was bound to deliver the goods at any particular place, or in any particular manner, he must show that this was done before the commencement of the action. Dunham v. Mann, 8 N. Y. 508 ; S. C, 4 E. D. Smith 500 : by title, Dunham v. Pettee ; Kelley v. Tipton, 5 Duer, 336. See illustrations of this rule, ante, 36, 54. It is also necessary to show that the defendant has been guilty of a breach of the agreement by a refusal to accept and pay for them when tendered to him, in those cases COMMON COUNTS. 347 Goods purchased and refusal to deliver. in which a tender by the plaintiff is required, or to show that he has not called for the goods and paid for them, when the contract required the purchaser to do so. The evidence should be clear and explicit to show a breach of the contract by the defendant, as well as to show a performance by the plaintiff. If the purchaser of goods agrees that the delivery of the goods is to take place at the premises of the vendor, and such purchaser agrees to call there and take and pay for them, at a stipulated price, on or be- fore a specified day, he will be bound to comply with such agreement or be in default ; and if he neglects or refuses to call and take the goods, or to pay for them, the vendor, after the expiration of such specified time, may request him to pay for the goods and take theixi, and if the purchaser refuses to do so, the vendor may rescind the con- tract of sale and dispose of the goods as though no contract of sale had been made ; or he may, on due notice to the purchaser, resell the goods and recover of him the sum lost on the resale, together with the expense of keeping the goods. McEachron v. Handles, 34 Barb. 301 ; aiite, 64. When goods are purchased which at the time of such purchase ai-e on board of a vessel at sea, the purchaser, on due notice of the arrival of the goods, is bound to receive them within a reasonable time after such notice, when tendered at the place designated by him for their delivery. Dibble v. Garbett, 5 Bosw. 202. And if he refuses to accept a delivery within a reasonable time, he is liable to the vendor for the damages which necessarily result from the delay. lb. If the property sold is agreed to be delivered between certain desig- nated dates it is optional with the purchaser to designate on which of the days he will receive it, and his failure to do so fixes the last day as that on which he may be required to perform the contract. Sousely v. Burns, 10 Bush (Ky.), 87. In case the seller was not the actual owner of all the goods tendered in compliance with the contract of sale, but was in a position to dehver them and pass a perfect.title, he will, as be- tween the parties, be regarded as the owner, and the buyer's refusal to receive them will render the buyer liable. Bell v. Offut, id. 632. § 2. Goods purchased and refusal to deliver. In this action the plaintiff must show a valid contract of sale, a performance on his part of the conditions of the agreement, and a breach thereof by the defend- ant. Where, by the terms of the contract of sale, goods are to be delivered by the vendor at a specified place, and they are to be paid for by the purchaser, on delivery, the purchaser need not, in an action by him 348 COMMON COUNTS. Goods purchased and refusal to deliver. against the vendor for a non-delivery of the goods, prove any demand of the goods sold ; it vi^ill be sufficient to prove that he was able, ready and willing, at the time and place fixed for the delivery of the goods, to accept and pay for them, according to the agreement. Vail v. Hice, 5 N. Y. 155 ; Branson v. Wimcm, 8 id. 182. In such cases the plaintiff need not prove any demand, tender or payment by him before suit brought. lb. ; Mount v. Zyon, 49 N. Y. 552. In one case the vendor contracted to sell and deliver a quantity of grain, consisting of rye, com and oats, at stipulated prices, and upon condition that the purchaser should give security for the purchase-price ; and the vendor, in pursuance of the contract, delivered the rye, without any security ; and during the delivery of some of the rye he received a payment which exceeded the value of the grain then delivered ; he thfen refused to deliver the remainder of the grain, upon the ground that the failure to give security had discharged the contract, notwithstanding an ofEer on the part of the purchaser to pay for the grain in advance, or to fur- nish the security required by the contract ; and it was held that the vendor's conduct was a waiver of security, so far as it related to the grain delivered, and that the purchaser's offer to give security or to pay for the grain was sufficient to entitle him to recover damages against the vendor for his non-performance of the agreement. Cornwell v. JSaight, 21 N. Y. 462. The refusal of the vendor to accept security, or to de- liver the grain, and the notice thereof to the purchaser, is such a refusal to perfdrm the agreement as to excuse the purchaser from .making a. tender of the price, or another offer to give security. lb. And see Crary v. Smith, 2 N. Y. 60. If, from the terms of the agreement, or if, from the nature of the contract, the purchaser is to call for the goods, and take them at the vendor's place of business, he must, in that case, demand them within the time, and according to the terms of the contract, before he can put the vendor in default. So, again, where by the terms of the contract the goods are to be paid for on delivery, or, if the contract is silent in that respect, the purchaser must also tender the purchase-price, before the vendor is bound to deliver the goods. "Where the time and place of delivery is not fixed by the contract, but is to be designated by the purchaser, proof of a demand, of a readiness to receive, and an ability to pay is essential to put the vendor in default. Isaacs v. New York Plaster Works, 8 Jones and Sp. 2Y7 ; Boody v. Rutland, etc., R. R. Go., 24 Vt. 660 ; Beard v. Sloan, 30 Ind. 279. In an action by the purchaser against the vendor for the non-delivery of goods sold the general rule is, that the purchaser is entitled to COMMON COUNTS. 349 Warranty on sale or exchange. recover the difference between the market-price, on the day, and at the place where the goods were to have been delivered, and the price, which, by the contract of sale, was to have been paid for them. Dana v. Fiedler^ 12 N. Y. 40 ; McKnight v. Dunlop, 5 id. 537 ; Billings v. Vanderbeclc, 23 Barb. 546. Where the purchaser has paid the purchase-price in advance, he may recover, in addition, interest on the same from the time when the goods ought to have been delivered ; and, according to the opinions of some able writers, this is the extent of the recovery. Sedgwick on Damages, 289 top, or 274 original paging ; 2 Kent's Com., 480 original paging, note a, or top paging 624, 625, note a, 8th ed. But while the general rule of damages is as above settled, it is changed when the vendor knows that the purchaser has an existing contract for a resale at an advanced price, and that the purchase is made to fulfill such con- tract. In such case the purchaser may recover the profits upon the resale, of which he has been deprived by the default of the vendor . Messmore v. New York Shot and Lead Oo., 40 N. T. 422 ; Booth v. Sjpuyten Duyvil Bollvng Mill Co., 60 id. 487. See Bank of Mont- gomery V. Beese, 26 Penn. St. 143 ; MoRose v. Fulmer, 73 id. 365. § 3. Warranty on sale or exchange. In actions for a breach of warranty upon a sale or exchange of personal property, there are a few rules relating to the pleadings and evidence, which require a brief notice. If a general denial is interposed, the plaintiff must prove on the trial that there was a contract of sale or exchange ; that the defendant warranted the property sold or exchanged ; that there has been a breach of such warranty ; and the consequent damages. An express warranty must be stated in the complaint, and according to the facts in the case. So, where the plaintiff relies upon an implied warranty, and he brings an action for a breach of it, he must, in his complaint, allege the exist- ence and the terms of warranty, as material and traversable facts, and as explicitly as in the case of an express warranty. Prentice v. Bihe, 6 Duer, 220. In actions for a breach of warranty, it is not necessary to prove that all the representations are false, or that all of them are actionable ; if it is proved that any part of them are false and actionable, that is sufficient to maintain the action. Sweet v. Bradley, 24 Barb. 549 ; ante, 85, 86. An action on the case in the nature of deceit will lie on a false war- ranty on a sale of goods, if the warranty is express ; and it is not nec- essary to allege or prove that there was fraud on the part of the seller. It is enough if the plaintiff alleges and proves the warranty, and that 350 COMMON COUNTS. Warranty on sale or exchange. it is false. Fowler v. Ahrmns, 3 E. D. Smith, 1. And if fraud is alleged in tlie complaint, it is not necessary that it should be proved to entitle the plaintiff to maintain his action. lb. Therefore, where the plaintiff's complaint alleged that the defendant, "by falsely and fraud- ulently warranting a horse sold by him to the plaintiff," sold him to the plaintiff, and, on the trial, proved an express warranty, and that it was false, it was held that he was entitled to recover, although the jury found specially that there was no fraud. lb.; Quintard v. I^ew- ton, 5 Eob. 72. But, when fraud is the basis of the complaint, there can be no recov- ery for a breach of warranty. For example, if the plaintiff alleges that the defendant, having offered to sell him a horse which was lame, warranted and falsely represented that the lameness was in the foot only, resulting from an injury while in pasture, and would soon disappear ; that the plaintiff purchased the horse relying upon such warranty and representations and believing them to be true ; that the horse was in fact lame from a diseased gambrel joint, which the defendant will know at the time of sale and of making such warranty and representa- tions ; and that by means of the premises the defendant falsely and fraudulently deceived the plaintiff in the sale of the horse to the damage, etc., the complaint is for the fraud, and there can be no recov- ery upon proof of the warranty and breach without proof of the fraud. Ross v. Mather, 51 K Y. 108 ; S. C, 10 Am. Eep. 502. And see Moore v. Noble, 53 Barb. 425 ; S. C, 36 How. 385 ; Barnes V. Quigley, 59 IST. Y. 265 ; Marshall v. Gray, 57 Barb . 414 ; S. C, 89 How. 172. The distinguishing feature between a warranty and fraud is, in general, guilty knowledge of the falsity of the represen tations on the part of the party making it. lb. Where a horse is sold, and the vendor represents him as sound and kind, with permission to the purchaser to return him, if he does not like him, after trial, and the purchaser, after trial, knows of an unsoundness, but elects to retain the horse, he cannot recover on the original warranty, but must pay the full price agreed on. Van Allen v. Allen, 1 Hilt, 524. The correct measure of damages in an action for the breach of a warranty on the sale or exchange of a horse is the difference between the value of the horse at the time of the sale or exchange, if he had been as represented, and his value as he is with the defect complained of. Gary Y. Grum,an, 4c Kill, 625; Sharon Y.Mosher, 17 Ba.rh. 51S; Comstock V. Hutchinson, 10 id. 211 ; Fales v. McKeon, 2 Hilt. 53. It is always competent, however, to show the price paid for the horse, as an element in estimating the damages. Gary v. Gruman, 4 Hill, 625. COMMON COUNTS. 351 Actions to recover for labor and services. But in Fales v. MoKeon, 2 Hilt. 53, it was held that if the plaintiff did not give any evidence as to the value of the horse as he was, nor as to his value if he had been as represented, that the plaintiff could not maintain his action, and that a judgment in his favor would, for that cause, be reversed, even where the purchase-price was specified in the bill of sale. In an action by an assignee upon a cause of action arising on a breach of warranty, the measure of damages is the same as though the action had been brought by the assignor. Sweet v. Bradley, 24 Barb. 549. The warrantor must make his warranty good, and the amount paid by the assignee for the right of action is entirely immaterial. lb. The allegations in the pleadings ought to be true in the sense that they are not intentionally false, and they ought to be accurate, in the sense that they correspond substantially with the evidence given on the trial ; but a mere variance between the proofs and the allegations is not as material as formerly, for, under the present system, most variances are obviated by an amendment at the trial, or by disregarding them when unimportant to the real merits of the action. § 6. Actions to recover for labor and services. The law relative to special contracts for the performance of labor has been suflficiently considered. Yol. I, 222. But, in every case in which there is a right to recover for labor performed, or for services rendered, there must be some contract, express or implied, to authorize a recovery. And, in most of the instances hereafter mentioned, the contract for payment is such as is implied from the nature of the transaction, rather than from any express agreement to pay. In numerous instances, an employer merely requests the performance of some labor or the rendition of some service without any express promise to pay, and without any stipulation as to the compensation to be made. In such cases, if the request is complied with, the law will impose an obligation upon the employer by implying a promise upon his part to pay for the labor done, or the ser- vice rendered, and it will also imply a promise to pay for such labor or service, a proper compensation, or such as it proved to be reasonably worth. If a party merely speculates on the chance of being paid, taking upon himself the risk, there is said to be no contract. But if he does work on the order of another, under such circumstances as that it must be presumed that he looks to be paid as a matter of right by him, then a contract would be implied with that person. Higgins v. Hopkins, 3 Exch. 166. And see Boss v. Mitchell, 28 Tex. 150 ; Eertzog v. Eertzog, 29 Penn. St. 465 ; Tucker v. Virginia, 4 Nev. 20 ; GoddardY. Foster, 17 352 COMMON COUNTS. Actions to recover for labor and services. Wall. 123. In such cases the parties are supposed to have made those stipulations which as honest, just and fair men they ought to have made, lb. ; Ogden v. Saunders, 12 Wheat. 341. But it is not necessary, in every case, to show that there was an ex- press request that the service should be rendered; for there are cases in which the law will invply both a request to render the service, and a promise to pay for it. Such cases are generally of that character in which the law imposes a legal duty, which is omitted by the party bound to render it. Instances of this nature are sometimes seen where an action is brought for tlie payment of claims for medical, or other necessary services, which have been rendered for a wife, or for an infant child. There are other cases in which the request is not an actual one, but is in the nature of an implied one. Where one person permits another to engage his service, and permits the rendition of valuable services without objection, while enjoying the advantages resulting from the service, the law will imply a promise by the recipient to pay what such services were reasonably worth. As between strangers the general rule is, where nothing is shown to the contrary, that whenever services are rendered and received, a con- tract of hiring or an obligation to pay will be implied. Hart v. Hess, 41 Mo. 411. And see Van, Arman v. Byington, 38 111. 443 ; Jones v. Jincey, 9 Grratt. (Va.) YOS ; Green v. Roberts, 47 Barb. 521. The keeper of a county poor-house has no right to the labor and ser- vices of persons kept there as paupers; and if he employs them to work for him, upon a promise to pay them therefor, he will be liable to an action if he refuses to pay for services thus rendered by such paupers. Bergin v. Wemple, 30 N. Y. 319. And if a person becomes an involuntary depository of a chattel, as for instance, by finding, and the owner subsequently reclaims the chattel, the law implies a promise to pay the reasonable expense of its preservation. Tomey. Four Cribs of Lumber, Taney, 553 ; Sheldon v. Sherman, 42 Barb. 368 ; S. C. affirmed, 42 N. Y. 484 ; 1 Am. Eop. 569 ; Chase v. Corcoran, 106 Mass. 286. And see 2 Act. and Def., title Deposit. So, as a general rule, although the services rendered for the benefit of another were without his request or privity, yet his subsequent express promise will be bind- ing, and even his subsequent assent will be sufficient evidence upon which to predicate a previous request. Allen v. Richmond College, 41 Mo. 302. Where one does work for another by compulsion, whom he is under no legal or moral obligation to serve, the law will imply a promise on COMMON COUNTS. 353 Actions to recover for labor and services . the part of the person benefited thereby, to make him a reasonable recompense. Pet&r v. Steely 3 Teates (Penn.), 250, 255. And so where one induces another to perform valuable services for him by fraud. Higgins v. Breen, 9 Mo. 497; 3 Act. and Def. 583. Another principle relating to this form of action is, that the service must be of some value, and must not be useless, by reason of the neg- ligent, unskillful, or intentional and wrongful acts or omissions of the person doing the labor, etc. In such cases, if the damages resulting from such acts or omissions are equal in value, or are greater than are the services rendered, there can be no recovery by such laborer. It is not indispensable that the labor should be profitable to the em- ployer, in order to enable the laborer to recover compensation for his services. For there are many cases in which the employer engages laborers to render services in a kind of business which cannot be made profitable, however skillfully the labor may be done. And if the em- ployer chooses to engage in an unprofitable business, that is either his folly or his misfortune, and in either case he will be required to pay for the services which have been rendered at his request. "When no express agreement is made as to the amount of compensa- tion, the law will imply a promise by the employer to pay what the services were reasonably worth, or the wages usually paid for like ser- vices in the same vicinity. In all business employments- the law will require that every person shall possess and use that degree of skUl which he expressly declares he has, or which he impliedly professes to have, by holding himself out publicly as qualified for that particular business or employment. If the person employed lacks such skill, or having it neglects to use it, so that his services are, in consequence, of no value to his employer, he cannot recover any compensation for the labordone or the service rendered. When no express agreement has been made, it is sometimes a ques- tion when the wages or compensation is payable. And the general rule is, that services rendered in the management of a farm or of house- hold duties, which are performed under a general retainer, without any express agreement as to the time or measure of compensation, or the term of employment, and such services continue for a number of years, the law will imply an agreement that the wages are payable from year to year at the end of the year. Da/ois v. Gorton, 16 N. Y. 255. And this is the rule, even in those cases in which the employer sets up the statute of limitations as a defense to an action by the laborer for the recovery of his wages. lb. And see The Kingj. Macclesfield, 3 45 354 COMMON COUNTS. Actions to recover for labor and services. Term E. 76 ; Bwxter v. Nurse, 1 Car. & Kir. (N. P.) 10 ; Rolcroft v. Ba/rber, id. 4. Again, it is not necessary that the services should be rendered by the plaintiff in person, for, if the services are rendered by the infant child of the plaintiff, or by his servant or agent at the request of the de- fendant, he will be as much liable to pay for such services as though they had been performed by the plaintiff in person. The cases in which an action may be maintained for labor performed, or for services rendered, are so numerous that a particular enumeration of all the cases would be a tedious labor without a corresponding ad- vantage. "When the general principles are well understood, it will be found that the individual cases are mere illustrations of these general principles. The action is maintainable by professional persons, by me- chanics, manufacturers, day laborers and every other class of persons who render valuable services for another at his request, either express or implied. It is to be remembered, however, that when services are rendered under a special contract which is unperformed, it is a general rule that an action will not lie for services rendered, but the complaint must be special, showing the contract and the breach, whatever that may be, on the part of the defendant. And in that case the law will give such damages as are appropriate to the nature of the action brought. There are some instances, however, in which a special agree- ment has been made, which has been subsequently modified or waived by the parties, in which case there may be a recovery for the services rendered after such modification or waiver, and that class of cases will be hereafter briefiy noticed. If there has been a special agreement for the rendition of services, and the plaintiff has partially performed his part of the contract, and he is then prevented by the defendant from completing the contract, the complaint ought to be special. When the service rendered is a gratuitous one, and was so under- stood by both parties at the time of its rendition, no action can subse- quently be maintained to recover compensation for such service. Car- penter V. Weller, 15 Hun, 134 ; Ross v. Ross, 6 id. 182, 185. A parent is not legally entitled to the custody or earnings of his children after they arrive at the age of twenty-one ; nor is he entitled to the earnings of, or bound to maintain his nephews or nieces ; yet if they live with him as members of his family without any contract or understanding that he shall pay for their services, or receive pay for their maintenance, the law will not imply a promise to pay on either side. Robinson v. Cushman, 2 Denio, 149; Andrews v. Foster, 17 COMMON COUNTS. 355 Actions to recover for labor and services. Vt. 556 ; Fitoh v. Peokham, 16 id. 150 ; Owen v. Parsons, 5 Watts & Serg. 357, 513 ; Wier v. Wier, 3 B. Monr. 645 ; Williams y. Hutch- inson, 3 N. Y. 312 ; Dye v. Kerr, 15 Barb. 444 ; Sullvoan v. Sullivan, 6 Hun, 658 ; Wilcox v. Wilcox, 48 Barb. 32Y ; Van Kuren v. Saxton, 5 Sup. Ct. (T. & C.) 566 ; S. C, 3 Hun, 547; Shirley v. Vail, 38 How. 406. Where one intrudes his services upon another against his will, and without his assent, express or implied, no recovery can be had therefor. Fox v. Sloo, 10 La. Ann. 11. And see Jones v. Woods, 76 Penn. St. 408. And it is held that the necessity or value of the services cannot operate to change this rule. Anderson v. Hamilton Township, 25 id. 75 ; Levee Commissioners v. Harris, 20 La. Ann. 201. But an obligation to pay what a service is rea- sonably worth will be implied, where the service was rendered with- out a party's knowledge, if it was an act of necessity, for which he was bound to provide, or where it can be assumed that he necessarily would, had he known of the exigency, have required it to have been done, understanding that he was to pay for it. Hewett v. Bronson, 5 Daly, 1 ; Ore&n v. Roberts, 47 Barb. 521 ; Vam, Arman v. Byington, 38 111. 443 ; Jones v. Jincey, 9 Gratt. (Ya.) 208. Services rendered for a person during his last illness, as a nurse and housekeepei*, are not deemed to be gratuitous, but on the contrary, there is an implied contract that the party receiving such service is to pay a fair compensation therefor. Succession of Pereuilhet, 23 La. Ann. 294; S. C, 8 Am. Eep. 595. And the fact, if it were shown, that the nurse or housekeeper lived with the man she was nursing and taking care of as his concubine is held not to impair or lessen her claim for wages, unless it be alleged and shown that concubinage was the motive and cause of their living together in the first instance, and that the services rendered were merely incidental to that mode of living. lb. ; Viens v. Brickie, 8 Mart. (La.) 11. But see Walraven v. Jones, 1 Houst. (Del.) 355 ; Swires v. Parsons, 5 Watts & Serg. 357. The latter case holds that a woman who lives with a man in a state of concubinage cannot recover compensation for services performed for him without proof of a contract of hiring. So it -is held in New York, that one who rendered services in the supposed relation of lawful wife cannot, on discovering that the marriage was void, recover for them on an implied promise to pay for them. Cropsey v. Sweeney, 21 Barb. 310 ; S. C, 7 Abb. 129. But, if the man led the woman into a void marriage fraudulently upon the false pretense that he was a single man, 356 COMMON COUNTS. Actions to recover for labor and services. an action lies and it survives against his personal representatives. Withee v. Brooks, 65 Me. 14. Where the services rendered are illegal, such as the printing of an immoral or indecent publication, or the rendition of manual services of an ordinary character on the Sabbath, no action will lie to recover compensation for such services. Brunnett v. Glcurk, 1 Sheld. 500. Where a statute makes it unlawful to perform labor upon the Sab- bath day, and no exception is made in favor of works of necessity, an agreement to perform such labor is without validity and no damages can be recovered for its breach. 8lade v. Arnold, 14 B. Monr. (Ky.) 232 ; Bernard v. Lupping, 32 Mo. 341. But if the statute merely prohibits unnecessa/ry labor, a recovery may be had for work which was necessary to be done. Whitoomb v. Gilm.an, 35 Yt. 297. The plaintiff must, however, show that this case falls within the exceptions of the statute, and the burden of proof is upon him to establish it. Sayre v. Wheeler, 32 Iowa, 659. See 3 Act. and Def. 589, 690. A contract for work and labor, to be void under the New York statute relative to the observance of Sunday, must be expressly and altogether for an act which the law forbids. It must be a contract for servile labor, to be performed on Sunday exclusively and expressly, and not on'any other day. Merritt v. Earle, 31 Barb. 38 ; S. C. affirmed, 29 N. T. 115; People v. Young Men's Society, 65 Barb. 357. And see Johns v. Bailey, 45 Iowa, 241. A contract to publish an adver- tisement in a newspaper issued on Simday was held to be an agreement to do an act prohibited by the statute, and that the price stipulated for the service could not be recovered. Smith v. Wilcox, 25 Barb. 341 ; S. C. affirmed, 24 N. Y. 353. But this has been changed by statute, Laws of 1871, chap. 702. But a contract to make a balloon ascension upon Sunday, from a garden open to the public on payment of admis- sion fees, is unlawful, and an action cannot be maintained for the com- pensation agreed to be paid the aeronaut. Brunnett v. GlarTc, 1 Sheld. 500. It is the general rule at common law that if a person knowingly contributes his services to an illegal or immoral purpose he is debarred from recovering the value of his services. Martin v. Barton Iron Works, 35 Ga. 320 ; Dumont v. Duforce, 27 Ind. 263 ; Steinfield v. Levy, 16 Abb. (N. S.) 26 ; 1 Act. and Def. 725. But it seems that if the labor is not per se illegal, but becomes so by the purpose to which it is applied, a recovery may nevertheless be had. Thus, a washerwoman who was employed generally to wash clothes of a prostitute was held to be entitled to recover for her services in that respect ; the court COMMON COUNTS. 357 Actions to recover for labor and services. observing, that the plaintiff was employed generally to wash the defendant's linen, and the use which the defendant made of it cannot affect the contract. Loyd v. Johnson, 1 Bos. & Pul. 340. And see Pearce Y.Broohs, L. JR., 1 Exch. 217 ; Mahood v. Tealza, 26 La. Ann. 108 ; S. 0., 21 Am. Eep. 546 ; Evblard v. Moore, 24 La. Ann. 591 ; S. C, 13 Am. Kep. 128. Again, where the person performing the service is required to have a license authorizing him to perform such services, as for example, a carman in a city, he must show that he had a license or he cannot recover. Ferdon v. Qunningham, 20 How. 154 ; Ohadwick v. Gollins, 26 Penn. St. 133 ; Collins v. Carnegie, 1 Ad. & El. 695 ; The Pioneer, Deady (U. S.), 72. There can be no recovery for services rendered as a clerk in a liquor- store, or as a bar-tender in a hotel or saloon, in respect to the sale of liquor without a license. Badgely v. Beale, 3 Watts (Penn.), 263. So where the statute requires that real estate brokers shall obtain a license, they can recover no commissions, unless properly licensed. Castello v. GoldbecJc, 9 Phil. (Penn.) 158 ; DuJce of Brunswick v. Growl, 4 Exch. 492. Attorneys. — The foregoing general principles which relate to the action for services rendered would probably be sufficient, but it may be that there are those who would desire a few cases illustrative of those principles, and, therefore, a few of the more usual cases will be given for that purpose. The right of an attorney or counselor at law to recover a compensa- tion for his services by an action at law has long been established in this State ; and it was the rule before the enactment of the Code of Procedure. Adams t. Stevens, 26 "Wend. 451. The plaintiff is entitled to recover, although the services were not rendered in an action in which the defendant was a party, for if the plaintiff rendered services for a third person at the request of the defendant, that will be sufficient to sustain an action. Wilson v. Burr, 25 Wend. 386. Since the enactment of the Code, the amount of the compensation to be paid to attorneys and counselors is entirely a matter of agreement between client and attorney or counsel, and the agreement may be either express or implied. Code of Civil Procedure, § 66. If the agreement is an express one, that will, of course, determine the amount which is to be paid. But, in the absence of any express agreement, it is sometimes a subject of inquiry as to the amount of compensation pay- able upon any implied promise. Before the Code, if there was no ex- press agreement, the compensation of an attorney was limited to the 358 COMMON" COUNTS. Actions to recover for labor and servlceg. amount of costs taxable between party and party. Scott v. Elmendorf, 12 Johns. 315 ; McFarland v. Crary, 6 "Wend. 297. The Code, however, has introduced a new and an entirely contrar dictory practice in that respect. In the absence of an express or special agreement, an attorney or counselor is entitled to recover such sum as will be a reasonable compensation for his services, without any refer- ence to the amount of costs which may be taxable between party and party. Vmi Every v. Adams, 10 Jones & Sp. 126 ; Betts v. Belts, 4 Abb. N. C. 317. See Whitehead v. Eennedy, 69 K T. 462 ; Foster V. Newbrough, 66 Barb. 645 ; Garfield v. Kirk, 65 id. 464. In an action by an attorney for the recovery of his fees, in the ab- sence of any agreement as to the amount, it is not necessary to refer to the fee-bill at all, to ascertain what is a proper compensation to be paid by a client to his attorney ; and if it is referred to, although the items would be deemed erroneous by a taxing officer, still, if the whole amount does not exceed what the attorney is entitled to as a fair com- pensation from his client, there will be no error in allowing that amount. Sandford v. Ruckman, 24 How. 521. See Foster v. JSewbrough, 66 Barb. 645. In the absence of an express agreement, the court will allow the attorney a better compensation than that fixed by the fee-bill, as be- tween party and party, if the circumstances of the case show that a larger amount ought to be paid. Cregier v. Cheesehrough, 25 How. 200. The statute fee-bill, although evidence bearing upon the ques- tion as to the value and amount of the services rendered, does not detei-- mine the question as between attorney and client. Oallwp v. Perue, 10 Hun, 525. Nor is the reasonable compensation recoverable by an attorney for his services in a cause determined, merely by the length of time engrossed, but by all the circumstances ; including the profes- sional skiU and standing of the attorney, his experience, the nature and character of the question raised and the result attained. Eggleston V. Boardman, 37 Mich. 14. And in an action by an attorney on the quantum meruit for professional services, the defendant may show by the examination of other members of the same bar, what is the usage of that bar in cases similar to that which the plaintiff had tried, and what the services of counsel therein were really worth. Thompson v. Boyle, 85 Penn. St. 477. And see Gullom v. MocTe, 31 La. Ann. 687 ; Aldrich V. Brown, 103 Mass. 527 ; McNeil v. Davidson, 37 Ind. 336 ; Southgate v. Atlantic, etc., JR. Ji. Co., 61 Mo. 89. But the amomit an attorney receives in a case for his services is no criterion of the value of the services of another attorney in the same case, in the absence of COMMON COUNTS. 359 Actions to recover for labor and services. any showing that the services were similar, the skill equal, and the time spent the same. Ottawa University v. Parkinson, li Kans. 159 ; Ottawa University y. Welsh, \A. 164. When an attorney sues for the recovery of a compensation for his services, the items contained in a judgment record in which hp was an attorney, and in which the amount of costs between party and party had been adjusted by the clerk, will not be sufficient evidence to entitle him to recover that amount. Garr v. Mairet, 1 Hilt. 498. He must introduce evidence showing the value of his services, which will be the amount he is entitled to recover, irrespective of the sum taxed be- tween party and party. lb. When there is no agreement as to the sum to be paid to an attor- ney for his services, and he does not give any evidence on the trial as to the value of his services, he will not be entitled to recover any thing, when the case shows that he was retained to attend to several appeals which he had brought in the County Court, but the case does not show that he rendered any services on such appeals, or the value of the ser- vices rendered. Stow^.Hamli/n, 11 How. 452: And see Moore v. Westervelt, 3 Sandf . 762 ; Easton v. Smith, 1 E. D. Smith, 318. As the law now stands, an attorney may agree with a client to carry on a suit for him upon the terms that the client is to pay a certain specified sum to begin with, and that the attorney shall have that amount, to- gether with the taxable costs, and a certain percentage upon the amount recovered, as his compensation, where there is no agreement that the attorney is to carry on the litigation at his own expense. Benedict v. Stitart, 23 Barb. 420; Satterlee v. Frazer, 2 Sandf. 141. In the absence of any proof that the attorney was to carry the action on at his own expense, the presumption will be against the existence of any such agreement. lb. Where the plaintiff and his attorney agree upon a sum which is to be paid for the services of the latter, instead of the statutory costs fixed by the Code, and the parties subsequently compromise the suit, with an agreement on the part of the defendant to pay the costs of the plaintiff's attorney, and a judgment is entered in pursuance of such arrangement, without including costs, the defendant will be bound to pay the sum so agreed upon by the plaintiff, with the attorney. In such a case the defendant has notice of the facts, and he ought to ascertain the amount of those costs before he makes such a settlement. Eall V. Ayer, 19 How. 91 ; S, C, 9 Abb. 220. Before an attorney or counsel can recover in an action for his services, he must show that the client retained him. It may not be requisite to 360 COMMON COUNTS. Actions to recover for labor and services. show the original express retainer, but there must be some evidence of it, either by express request and employment, or by a subsequent re- cognition of the services rendered. Hotchhiss v. Le Hoy, 9 Johns. 142. Where an action is commenced in a court of record, and an attorney assumes to act for the plaintiff, and is recognized in that action by the defendant's attorney, as the attorney for the plaintiff in that action, this will not be sufficient evidence of a retainer to sustain an action by such attorney against the plaintiff in that action, for the recovery of attorneys' fees. lb. So, where an attorney sued for his services, in bringing an appeal from a justice's court to a County Court, and the only evidence of his retainer was the production of the original appeal papers from the clerk's office, and among those papers was the appeal undertaking, which purported to have been executed by the appellant, though no evidence was given as to the genuineness of the signatures, nor of any retainer to prosecute the appeal, this was held to be insuf- ficient to sustain the action. Burghart v. Oardner, 3 Barb. 64. Proof of the actual rendition of the services, that the justice made a return, and the presumption of official duty, will not, in the absence of other proof of a retainer, be sufficient to sustain a recovery in such an action, lb. There is, however, very little difficulty in ordinary eases, in prov- ing an actual retainer, or such a subsequent recognition of the acts done, as will legally authorize an inference of retainer. And since the Code permits parties to be witnesses, a retainer can nearly always be proved, if the defendant actually and expressly retained the plaintiff. The law requires that every attorney and counselor shall possess adequate skill, and that he will employ it in every case, according to the importance and intricacy of the cause. An attorney or counsel is not a guarantor that his client shall succeed in his cause unless he makes a special agreement to that effect. Yol. I, 600. If a cause mis- carries in consequence of the culpable neglect, or the' gross ignorance of an attorney, he cannot recover compensation for any services which he has rendered, but which were useless to his client by reason of his neglect or ignorance. Bowman v. Tallmcm,, 40 How. 1 ; Hatch v. Fogerty, 1 Jones & Sp. 166 ; S. C, 10 Abb. (N. S.) 147 ; 40 How. 492 ; Gleason v. Clark, 9 Cow. 57. But merely proving that the plaintiff was nonsuited is not sufficient evidence of negligence or want of skill to defeat an attorney's claim for services. lb. Under the old practice, such a defense would have been admissible under the general issue, when the defense went to the whole claim, but notice was required, if a mere diminution of the claim was urged. lb. But now, iinder the Code, such a defense must be specially pleaded, whether it defends COMMON COUNTS. 361 Actions to recover for labor and services. against the claim partially or wholly. When a client refuses to pay his attorney upon the ground that he has been defeated and dam- aged by reason of the negligence and want of skill of the attorney, he must establish this fact affirmatively. Seymour v. Cagger, 13 Hun, 29. Where a judgment in favor of a plaintiff is set aside for irregularities in the practice of his attorney, such attorney cannot recover against his client either the costs of the action or the costs of opposing the motion to set aside such judgment. Hopping v. Quinn, 12 Wend. 517. Nor can he recover for money paid for such client, if the payment was made in satisfaction of the costs of discontinuance which resulted from his negligence or ignorance. lb. An attorney is liable for gross blunders and negligence in the con- duct of the business intrusted to him, for every person who enters a learned profession undertakes to bring to it the exercise of a reason- able degree of care and skill. The degree of skill which is required of attorneys it is rather difficult to define with exactness. Were they liable on every occasion for ignorance of the legal questions which arise in the course of their multifarious employment, their responsibility would far exceed that of any other class of professional men ; and to exempt them from any such liability on account of the difficulty and delicacy of their ordinary vocation would be directly to encourage rash- ness, ignorance and inattention in the administration of justice. The law steers a middle course, and lays it down, that to render an attorney amenable for the consequences of a mistake, he must have been grossly at fault or grossly negligent. Though it is difficult to define the exact limits which divide gross ignorance and negligence from due care and skill, yet the cases appear to have established as general prin- ciples, that an attorney is liable for the consequences of ignorance or non-observance of the rules and practice of the courts in which he practices, for the want of care in the preparation of causes for trial, or in securing the attendance of witnesses, and for the mismanagement of 80 much of the conduct of the trial as is usually allotted to his depart- ment of the profession, while on the other hand he is not answerable for an error in judgment upon points of new occurrence, or those of nice and doubtful construction. In this country the rule generally recognized is, that an attorney is liable for the want of such skill, prudence and diligence as lawyers of ordinary skill and capacity commonly possess and exercise. Caverly v. McOwen, 123 Mass. 574; Oamhert v. Hart, 44 Cal. 542; Harter v. Morris, 18 Ohio St. 492; Watson v. Muirhead, 57 Penn. St. 161; Walpole V. Garlyle, 32 Ind. 415. If he acts with a proper degree of 46 362 COMMON COUNTS. Actions to recover for labor and services. attention, with reasonable care, and to the best of his skill and knowl- edge, he will not be held responsible. Stevens v. Walker, 55 111. 151. In an action against an attorney for negligence, in allowing a judg- ment to be taken by default in an action which he was retained to defend, after negligence is shown the burden of proof is upon such at- torney to show that there was no defense to that action. And the party suing such attorney is not bound to show, in the first instance, that there was a good defense to it. Godefroy v. Jay, 1 Bing. 413. It is a good defense to an action by an attorney for the recovery of fees, to show that he promised to conduct the cause gratuitously. Ashfard v. Price, 3 Stark. N. P. 185. So, where an attorney agrees not to charge any costs or fees except such as may be recovered against the opposite party, he cannot recover more than that sum in case of success ; and in case nothing is taxed against the opposite party as costs or fees, for the reason that the opposite party was the successful one in the action, the attorney is not entitled to recover any thing. Factors or brokers are entitled to a compensation for their services, and an action will lie in a proper case to recover the sum due. This subject has been somewhat discussed in relation to the law of agency. Vol. 1, 430. There are a few cases, however, which may be properly no- ticed in this place. Before a broker can maintain an action for commis- sions, he must have negotiated and made a contract which his employer accepts, or such a contract as his employment authorizes him to make, and it must be made with some person who is able and willing to per^ form the agreement, or who may be legally compelled to do so. Barnes V. Roberts, 5 Bosw. T3, 84 ; Coleman v. Mead, 13 Bush (Ky.), 358. Commissions are a just and appropriate measure of compensation to public officers who receive and disburse the public money ; and so they are to trustees who execute private trusts and receive and pay out the trust funds. They are also a customary mode of compensation to merchants, agents and factors, who buy and sell property and merchandise for others, and pay out and receive the price therefor, and to that class of agents who deal in real property for other persons, and for obvious reasons neither pay out nor receive into their own hands the purchase- money. Lyon V. Valentine, 33 Barb. 271. But, where the person claiming commissions is not an agent or a broker engaged in the busi- ness of buying and selling lands, and he does nothing more than to in- troduce one neighbor to another who wishes to sell apiece of land, this is not a ease entitling a party to commissions, especially where the negotiations are conducted and the sale effected by the parties them- selves, lb. But, although a broker's commission could not be recovered COMMON COUJ^TS. 363 Actions to recover for labor and services. in such a case, the person acting as agent would be entitled to such reasonable compensation as his time and trouble were worth, if rendered at the previous request of the vendor of the land. A person who employs a broker is presumed to deal with him in reference to the customs of brokers ; and this is the rule whether the person so dealing and employing bhe broker knows the customs or not. Whitehoiise v. Moore, 13 Abb. 142 ; Horton v. Morgan, 19 N. Y. 170 ; S. C, 6 Duer, 56 ; Folloch v. Stables, 12 Ad. & Ell. (N. S.) 766. An owner cannot be enticed into a liability for commissions against his will. A mere volunteer without authority is not entitled to com- missions, merely because he has inquired the price which an owner asks for his property, and has then sent a person to him who consents to take it. Pierce v. Thomas, 4 E. D. Smith, 354. And this is especially the rule where it is shown that the owner of the land had expressly re- fused to employ such broker, and had also refused to permit him to offer the property for sale. lb. A broker has no better claim to re- cover for voluntary service rendered without employment, and not received and acted upon by the owner as rendered in his behalf, than any other volunteer. lb. It is not sufficient for a broker to show a mere retainer to sell real estate ; he mnst go further, and show that he has effected a sale, or he cannot recover commissions ; and where a broker is employed to find a purchaser by a specified day, which he fails to do, and so notifies his employer, he cannot recover commissions because he afterward informs another broker that such property is for sale, although such broker afterward finds a purchaser. Holley v. Townsend, 2 Hilt. 34 ; Satterthwaite v. Vreeland, 3 Hun, 152 ; S. C, 5 Sup. Ct. (T. & C.) 363 ; 48 How. 508 ; Ward^. Lawrence, 79 111. 295. A broker for the sale of real estate is entitled to his commissions, when, in the language of the cases, he " is the procuring cause of the sale ; " that is, when he has found a purchaser and brought him to his em- ployer, and a contract is made between them for the sale of the prop- erty, or the purchaser is ready to purchase, and the seller refuses or is unable to consummate the sale. Knajpp v. Wallace, 41 N. Y. 477 ; Martin v. Silliman, 53 id. '61 5 ; Lloyd v. Mathews, 51 id. 124; Fra- ser V. WycJcoff, 63 id. 445 ; Miller v. Irish, 67 Barb. 256 ; Barnard V. Monnot, 1 Abb. Ct. App. 108 ; 3 Keyes, 203. See Coleman v. Mead, 13 Bush (Ky.), 358. He is not, however, entitled to commis- sions until he has performed the undertaking assumed by him. What- ever may be the terms and conditions upon which his right to com- pensation depends, they must be performed as a condition precedent to a right of action for a commission. Fraser v. Wychoff, 63 JST. Y. 445 ; 364 COMMON COUNTS. Actions to recover for labor and services. Coleman v. Mead, 13 Bush (Ky.), 358. He is not entitled to his com- missions until he finds a purchaser ready and willing to complete a pur- chase on the terms prescribed by the seller and assented to by the broker. Moses V. Bierling, 31 JST. Y. 462 ; McGa/ooch v. Woodlief, 20 How. (TJ. S.) 221. If the principal prevents a performance by the broker, the right of the latter to recover would depend upon a different prin- ciple, and he may recover without proving a strict performance. young V. Hunter, 6 N. Y. 203 ; Holmes v. Holmes, 9 id. 526. If the broker is employed to make a sale under an agreement for the ex- clusion of all other agencies, he is entitled to his commissions when he produces a party ready to make the purchase at a satisfactory price ; and the principal cannot relieve himself from liability by a capricious refusal to consummate the sale or by a voluntary act of his own, dis- abling him from performance. Glentworih v. Luther, 21 Barb. 145 ; Kook V. Emmerling, 22 How. (U. S.) 69 ; Van Lien v. Byrnes, 1 Hilt. 134 ; Moses v. Bierling, 31 IST. Y. 462. Unless it is otherwise provided by the terms of the agreement be- tween the seller and the broker, the former may employ several brokers for the sale of the same property and is of course only liable for the commissions of the one who effects the sale. And although he employs one or more brokers he may negotiate and sell the property himself without liability to any one for commissions. McClave v. Paine, 49 N. Y. 561 ; S. C, 10 Am. Rep. 431 ; Sussdorff v. Schmidt, 55 N. Y. 319. Where the owner of real estate employed a broker, then dis- missed him, and finally re-employed him, when he subsequently effected a sale of the property, it was held that he was entitled to his commis- sions, and that another broker who had conducted intermediate negotia- tions, without effecting a sale, could not recover. Ludlow v. Carmcm, 2 Hilt. 107. The defendant employed the plaintiff to assist him in find- ing a house, and in negotiating for the purchase of it, and the defend- ant subsequently acknowledged that the services rendered by the plain- tiff were useful, and he promised to pay for them, this was held to be sufficient to entitle the plaintiff to recover what his services were rea- sonably worth, although it was not distinctly proved that the purchase was accomplished through the plaintiff's agency. Goldsmith v. Oher- meir, 3 E. D. Smith, 121. In such a case the plaintiff is entitled to pay for his services, whether he procures the purchase or not, unless he has expressly agreed, or unless the evidence authorizes an inference that he should not have any compensation if he did not effect the purchase. lb. Doty V. Miller, 43 Barb. 529. COMMON COUNTS. 365 Actions to recover for labor and services. A broker acting at once for both vendor and purchaser assumes a double agency, disapproved of by law, and which, if exercised without the full knowledge and free consent of both parties, is not to be toler- ated. Lynch v. Fallon, 11 K. I. 311. But in cases of exchange of property, real estate brokers, employed as middlemen to bring purchas- ers together to enable them to make their own bargains, may charge commissions to both parties. They are not agents to buy or sell, and are not within the rule which prohibits their acting without consent as agent for both buyer and seller. Balheimer v. Eeicha/rdt, 55 How. 414 ; Siegel v. Gould, 7 Lans. 177. And see Alexander v, Northwestern University, 57 Ind. 466. Architects. — An architect is entitled to a reasonable compensation for such services as he may render at the request of his employer. And if he performs work and labor upon a building on the joint em- ployment of two persons, a joint action may be maintained against them, although they may not be partners or tenants in common of the building or land. Beach v. Raymond, 2 E. D. Smith, 496. Such joint employment of the architect need not be express, it may be proved by evidence which authorizes the inference of such an employ- ment, as, for instance, that both defendants have given direction as to the work, its character and mode of execution ; and when one of them denies his liability, his promises to pay certain bills for the construction of the building, and his indorsement of notes therefor; his ownership of the land, and ultimately of the building thereon ; and his uniting in the examination of the architect's accounts and set- thng the balance due, are sufficient evidence to sustain a judgment in favor of the architect against both defendants. lb. The claim of the architect may be assigned, and that, too, by gift, without any consideration. lb.; Richardson v. Mead, 27 Barb. 178. Printers may also recover a compensation for services rendered in printing books, pamphlets, magazines, bills, advertisements, and any other matters usually printed, or which they may be desired to print. But there are a few exceptions to this general rule, for a printer Cannot recover a compensation for printing a grossly immoral and obscene work, for it is against public policy, decency and morals to encourage or tolerate the publication of such works. Poplett v. Stockdale, 2 Carr. & Payne, 198. No action will lie for the price of libelous, obscene or immoral prints. Fores v. Johnes, 4 Esp. N. P. 97. Nor can the first publisher of a libelous or immoral work maintain an action against any person for publishing a pirated edition of it. StocTcdale v. Onwhyn, 5 Barn. & Ores. 173 ; S. 0., 2 Carr. & Payne, 163. 366 COMMON COUNTS. Actions to recover for labor and services. Clerks engaged in every kind of lawful business are entitled to re- cover the compensation agreed upon, and in the absence of an ex- press agreement, they may recover such a reasonable compensation as their services are worth. But no action will lie for services rendered by a clerk on Sunday, even though the labor is extra work, and is performed upon an express promise to pay for it. Watts v. Yan Ness^ 1 Hill, 76. Servants and day laborers constitute a very large proportion of those who have occasion to litigate their claims for compensation. The gen- eral right to recover for their services is so well understood that little need be said upon the subject. But it is important to remember, that their rights under a general hiring, and those which exist under a spe- cial contract, may be essentially different, since the contract generally governs the right to compensation. See Yol. I, 222. The statute pro- hibits the exercise of ordinary labor on the Sabbath, and, therefore, no action can be maintained for labor performed on that day. 2 R. S. 936, § 66, 5th ed. The statute, however, excepts works of necessity and of charity, and also those persons who keep Saturday as the Sab- bath. Teachers may recover a just compensation for their services from those persons who employ them. But if the claim is made by a common school teacher, the plaintiff must show that he or she was duly licensed as a teacher at the time the services were rendered. Laws of 1864, chap. 555, § 13, subs. 5, 6, 7 ; id., §§ 41, 43. And see Siher V. Gummings, 7 Wend. 181 ; Finch v. Cleveland, 10 Barb. 290. Before the amendment of the act of 1864, in 1879, school district trustees could contract with a teacher in good faith, and without fraud or collusion, for a reasonable period beyond their terms of office, and the contract would be valid and binding upon their successors in office. Wait V. Ray, 67 N. T. 36 ; Oillis v. Space, 63 Barb. 177. But by the amendment of that act no person can be employed as a teacher of a district school who is within two degrees of relationship by blood or marriage with the trustee of the district, except with the approval of two-thirds of the voters of such district present and voting upon the question at an annual or special meeting of the district ; nor can any sole trustee of the district make any contract for the employment of a teacher for the district beyond the close of the school term commenc- ing next preceding the expiration of his term of office, except with the approval of a majority of the voters of such district present, and voting upon the question at an annual or special meeting of the district ; nor can the trustees of any school district having three or more trustees COMMON COUNTS. 367 Actions to recover for labor and services. make any contract for the employment of ateacher or teachers for more than one year in advance. Laws of 1 879, chap. 264. "Any person employed in violation of the foregoing provisions shall have no claim for wages against the district, but may enforce the specific contract made against the trustee or trustees consenting to such employment as individuals." lb. An infant contracted to teach a district school for twelve weeks, and after teaching twenty-three days, the school-house was burned, and no other building was provided for her. She was not, however, discharged, and at the end of the contract term she returned the registry duly filled out with ciphers, etc., — and it was held that, after her majority, an action would lie for her wages for the full term. Cashen v. School District, 50 Yt. 30. The teacher of a select or private school may recover pay for such services as may have been rendered, and the amoimt of the recovery will be such as has been expressly agreed upon, or in absence of an express agreement, the amount will be such as the services are reasonably worth. Where such schools undertake to furnish board, lodging and instruction for the scholars attending, it will be a good defense to an action upon a bill for tuition, board and lodging, to show that the scholars were not furnished with sufficient instructions, board and lodging. Clements v. May, 7 Carr. & Payne, 678. But the defend- ant, in an action to recover for tuition, etc., must confine himself to evidence as to the treatment of the scholars sent by him, and he will not be permitted to go into general evidence either as to the plaintiif 's mode of conducting the school, or as to his conduct with reference to other particular boys. lb. The jury, or the justice sitting in their place, may find, from the evidence, if that warrants the conclusion, that the plaintiff is not entitled to recover any thing, or they may reduce the amount of his recovery to such sum as may be reasonable and just. lb. Authors and editors are entitled to recover pay for their services ; but their claims are regulated and controlled by the same general rules which relate to other contracts of service. And, therefore, neither an author nor an editor can recover any compensation for writing libelous or immoral or obscene works or articles, nor for labor performed on Sunday. And it is not necessary that the plaintiff should be an author or editor to entitle him to recover for services rendered on request. And, if the proprietors of a newspaper publish a standing notice, which requests a voluntary correspondence containing important news, and prortiising to pay 368 COMMON COUNTS. Actions to recover for labor and eervicea liberally for any articles -which may be furnished and used, they will be compelled to pay a person who furnishes such articles as are published by such proprietors in their paper. Bahcock v. Raymond, 2 Hilt. 61. The writer of such an article is competent to testify as to its value; and if no contradictory evidence is given, the evidence so given will be conclusive as to value. lb. The pubhcation of such an article is an admission that it is of the character reauired by the notice. lb. Physicians or surgeons may maintain actions for tne recovery of pay for their labor, services, attendance or medicines. The old law, reqxiir- ing a license or diploma from one of the incorporated medical societies of this State (2 E. S. 60, § 16, 5th ed.), has been repealed. 2 E. S. 66, § 38 ; Laws 1844, chap. 275. But other acts of similar purport have since been passed ; and every physician and surgeon is now required, not only to have a license to practice, biit to register his name, residence, place of birth, and his authority for practicing, in the clerk's office of the county where he practices or intends to practice. Laws of 18T2, chap. 746; Laws of 1880, chap. 513; Laws of 1881, chap. 186. Any person practicing as a physician or surgeon without a license or diploma, or without registering, or who shall practice under a diploma illegally obtained, is guilty of a misdemenor, and may be punished by fine or imprisonment, or both. Laws of 1874, chap. 436 ; Laws of 1880, chap. 513, § 3. The statutes regulating the practice of physic and surgery in this State, prior to 1806, did not in terms declare that no compensar tion should be recovered by an unlicensed practitioner, but they sub- jected him to a penalty for the unauthorized and illegal act, and this was declared equivalent to a provision prohibiting a recovery for such compensation. Bailey v. Mogg, 4 Denio, 60. The present statutes should receive the same construction. It was held, under the old laws, that a failure to deposit a copy of his license in the clerk's office, as re- quired by statute, would not prohibit a recovery by a duly licensed physician for professional services. Finch v. Qridley, 25 Wend. 469. But, at the time this decision was rendered, the practice of physic or surgery without depositing a copy of the license in the clerk's office only subjected the practitioner to a penalty, and was not made by statute a criminal offense. Under the present statute, a physician or surgeon is prohibited from practicing without registering as provided in the act of 18S0, and practicing without registration is made a criminal offense ; and it would seem from the effect given by the courts to other statutes containing similar provisions, that a physician or surgeon prac- ticing in violation of the statutes could not recover compensation for COMMON COUNTS. 369 Actions to recover for labor and services. his professional services. See Swords v. Otoen, 43 How. 176 ; S. C, 2 Jones & Sp. 277 ; Griffith v. Wells, 3 Denio, 226 ; Best v. Bauder, 29 How. 489 ; Hallett v. JVovion, 14 Johns. 290 ; Seneca County Bank V. Zafnb, 26 Barb. 595. The defense, to be available, must be pleaded and the facts constitut- ing the defense must be proved upon the trial. See 0' Toole v. Gar- vin, 1 Hun, 92; S. C, 3 Sup. Ot. (T. & C.) 118 ; Bemneqidnv. Butter- field, 11 Jones & Sp. 411. In an action by a physician to recover for professional services it is not necessary that the physician should pro- duce his diploma in order to make his case. In civil cases a license is presumed until the contrary is shown. McPherson v. Gheadell, 24 Wend. 15 ; Thompson v. Sayre, 1 Denio, 175 ; Smith v. Joyce, 12 Barb. 21. The law implies a promise on the part of a physician or surgeon, that he possesses ordinary skill, and that he will discharge his professional du- ties with reasonable and ordinary care and skill. Bellinger v. Craigue, 31 Barb. 534. If he does not possess such skill, or if he neglects to use it, so that the patient is not benefited, or is in fact injured, in con- sequence of his negligence, or his ignorance, he cannot recover any thing for his services, but will, on the contrary, be liable to an action for the damages sustained. lb. The presumption is, in the absence of proof of negligence or want of skill, that the physician is skillful, and that he has not been negligent. lb. This presumption may, however, be rebutted by evidence showing ignorance or neghgence on his part. lb. A physician or surgeon is entitled to recover for the services rendered by a student in his office, in attending upon the patients of such physician or surgeon. People v. Monroe Com. Pleas, 4 Wend. 200. The law in' this State does not recognize any exclusive preference for any particular system of medicine, or for any class of medical practitioners. Corsi v. MaretzeTe, 4 E. D. Smith, 1 ; White v. Carroll, 42 N. T. 161 ; S. C, 1 Am. Eep. 503. Clergymen. — A call to a minister which is signed by three elders and a trustee of a Presbyterian congregation, is the act of the corporation, and not that of the oflicers signing the call who are not individually liable to the minister for the payment of the salary promised. PaddocTc V. Brown, 6 Hill, 630. But, a clergyman may maintain an action against an individual who has promised to pay a stipulated sum annually for his services in preaching. Moore v. Fox, 10 Johns. 244. Where a Methodist minister has, at the request of the proper authori- ties of the church, entered upon the discharge of his duties, under the understanding that he is to be paid for his services, and has performed the duties of his calling, and is appointed by his bishop for a second 47 370 COMMON COUNTS. Actions to recover for labor and services. year with the knowledge of the trustees and congregation, and performs the duties of that year, he can recover against the corporation upon an implied promise to pay him for his services. La/nders v. Frank Street Church, 15 Hun, 340. Oa/rriers. — So, common carriers may maintain an action to recover pay for their services. See Vol. I, 619. If a statute prescribes the amount of their compensation, they cannot recover more than the sum prescribed. If a carrier receives grain for transportation upon an agree- - ment that freight is to be paid at the rate of a specified sum per bushel, he cannot recover for any more than the amount due upon the number of bushels actually delivered. Allen v. Bates, 1 Hilt. 221. But when an agreement is made to furnish a carrier with a specified quantity and quality of freight which is not done, the carrier will not be entitled to recover such damages as he has sustained in consequence of the failure to furnish the freight. Shannon v. Oomstook, 21 "Wend. 457. A con- tract by a carrier that he will transport and deliver goods at a specified place by a given day, or in default thereof will deduct a specified sum from the freight for every day that the goods are delayed beyond the agreed time, is a valid contract, and will be enforced against the carrier. Ha/rmony v. Bvngham, 12 N. T. 100. If a carrier, in violation of such an agreement, refuses to deliver the goods without the payment of the full freight, and the owner, for the purpose of obtaining possession of his property, pays the full sum under protest, he may recover back from ' the carrier the amount of such over-payment because it was not a volun- tary payment. lb. Where there is an express agreement as to the amount of freight to be paid, the agreement will control. But, if there is no such agreement, the carrier may recover such sum as is reasonable which may be ascertained by the usages of trade and the circumstances of the case. If the property is carried gratuitously or against the will of the owner, no action will lie for freight. Sohureman v. Withers, Anthon's N. P. 166. The goods must not only be transported to the place specified, but they must be delivered before an action will lie by the carrier. Row- land V. Miln, 2 Hilt. 150. "Where the transportation is by water, the proper place of delivery is on the wharf, upon due notice to the con signee of the time and place of delivery. lb. If the consignee is absent, dead or cannot be found after due efforts, or if he refuses to receive them, the carrier, to discharge himself from responsibility, must place them in store with a responsible person, at the risk, cost and charge of the owner. lb. COMMON COUNTS. 371 Actions to recover for labor and services. But if a delivery is prevented by the neglect or default of the owner, or by his wiUful acts, the carrier will be entitled to his compensation, lb. The claim of a carrier may, however, be diminished or entirely de- stroyed, if from his negligence or want of skill the goods are deterio- rated in value to the amount which authorizes such reduction or dis- charge of his claim. When property is carried a part of the distance agreed upon, and it is then voluntarily accepted by the owner before the completion of the journey, the carrier is entitled to recover ^ro rata for the distance which he carried such property. Rowla/nd v. Miln, 2 Hilt. 150. An intermediate consignee may lawfully refuse to pay freight to a carrier who has lost or converted a part of the goods de- livered to him for transportation, where such carrier refuses to allow and deduct the value of the property so lost or converted. Davis v. Pattison, 24 N. Y. 317. No contract for the payment of freight for a part of the property delivered will be implied in such a case. lb. An inter- mediate consignee is authorized, by virtue of his character, to adjust and recover the damages which result from a loss of a part of the property, lb. Mam,ufaoturers am,d mechanics of every description are entitled to such compensation for their labor as may be agreed upon ; and in the absence of any special agreement, to such sum as it is reasonably worth ; and they may maintain actions for the recovery of such compensation. But they are also subject to the general rules of law which require skill and diligence on their part ; and they are also liable for the injuries which result from their want of skill, or from their neghgence in the performance of the labor. The rights and duties of mechanics will be more fully discussed in another place. See Bailments, Yol. I, 591-603. Officers. — A justice of the peace, or a sheriff or constable may recover his fees against the party whose process he serves, or at whose request the service is performed. "Where the action in which a sheriff renders services is in a court of record, he may demand and recover his fees of the attorney who employed him, or who issued the process which he executes. Adams v. Hopkins, 5 Johns. 252 ; Ousterhout v. Bay, 9 id. 114; Judson v. Gray, 11 N. T. 408; Campbell -v. Coihram., 65 Barb. 534 ; S. C, 1 Sup. Ct. (T. & C.) 70 ; affirmed, 56 N. T. 279 ; BirUeok v. Staffcyrd, 14 Abb. 285 ; S. C, 23 How. 236. But a sheriff cannot maintain an action for fees in making an arrest which is void, because of the exemption of the party arrested from arrest. Wragg v. Swa/rt, 10 Johns. 93. 372 COMMON COUNTS. Actions to recover for labor and services. A referee who is appointed by a court of record may maintain an action against the party who takes up his report. But he cannot main- tain an action for his fees against the attorney on either side of the case. Jvdson V. Gray, 11 N. T. 408. A stenographer cannot maintain an action against an attorney for one of the parties to an action to recover for services rendered in the action in which both were employed in the absence of a special agree- ment imposing a personal liability upon the attorney. Bonynge v- Field, 81 N. Y. 159; Bonynge v. Waterhurg, 12 Hun, 534 ; Sheridan V. Genet, id. 660. And see Govell v. Hart, 14 id. 252. The rule that 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 responsible, applies to the rela- tionship of attorney and client. The rights of a witness as to fees, and his duty in obeying a subpoena, have been elsewhere explained. See title Witness. "Where a com- mittee is appointed at a public meeting for the purpose of carrying into effect the object of such meeting,, the committee will be personally liable for the payment of any laborers whom they may employ in the business. McCa/rtee v. Ghamhers, 6 Wend. 649. It seems that where a statute makes it a misdemeanor in a pubhc officer to act officially without filing an oath of office the omission will not involve a forfeiture of compensation for his services. People v. Benton, 29 N. T. 534. An office in this country is not property, nor are the prospective fees the property of the incumbent. The right to the fees grows out of the rendition of the services. Smith v. Mayor of New York, 37 N. T. 518 ; affirming S. C, 1 Daly, 219. And the payment of the salary of an office to a de facto public officer, made while he is in possession, is a good defense to an action brought by the de jure officer to recover the same salary after he had acquired or regained possession. Auditors of Wayne Co. V. Benoit, 20 Mich. 1T6; S. C, 4 Am. Eep. 382 ; BolanY. Mayor of New York, 68 K Y. 274 ; S. C, 23 Am. Eep. 168 ; affirming S. C, 8 Hun, 440. But a dejure officer may recover so much of the salary of the office for the time during which it has been filled by a de facto officer, as has not been paid to such officer. lb. Or, one wrongfully kept out of office may recover of the wrong-doer the whole official salary. People v. Miller, 24 Mich. 458 ; S. C, 9 Am. Eep. 131. See Mayfield v. Moore, 53 111. 428 ; S. C, 5 Am. Eep. 52 ; Mc Yeamy v. Mayor of New York, 1 Hun, 85; S. C, 3 Sup. Ot. (T. & C.) 131. COMMON COUNTS. 373 Work, laboi and materials furnished. § 5. Work, labor and materials furnished. When labor is per- formed, upon an agreement or understanding that the workman is also to furnish materials, the contract is in many respects similar to that of a contract for labor and services. But it is also somewhat similar to that of a contract of sale, so far as it relates to the materials furnished. It is held, however, that the contract is in strictness a contract of hiring, and not that of a sale of goods. An agreement, therefore, by a me- chanic, to do the carpenter work and turning, for buildings which are to be erected upon the lands of another person, according to a parti- cular plan and specifications, and to be paid for the materials therefor, is a contract of hiring, and not a sale of goods. Courtright v. Stewa/rt, 19 Barb. 455. An agreement by a mechanic to make and deliver pat- terns, and to furnish the materials therefor, is a contract for work, labor and materials, and not a contract of sale. Sharp v. Johnston, 3 Lans. 520 ; S. C, 41 How. 400 ; 60 Barb. 144 ; Prince v. Down, 2 E. D. Smith, 625. The same rule applies where a tailor takes a measure for a suit of clothes, and' he agrees for a fixed price to cut and make the suit and furnish the materials. lb. In either case the proper com- plaint is for work, labor and materials, instead of that for goods sold. lb. Where there is a special contract for work, labor and materials, by which the work is to be done within a specified time, or in a certain manner, or the materials are to be of a particular character, the contract must be fully and substantially performed like any other special con- tract, or there cannot be any recovery of the price specified. Atkinson V. Collins, 30 Barb. 430 ; S. C, 18 How. 235 ; 9 Abb. 353. Where the contract for the performance of work and labor is in writing, and it contains special conditions which are to be performed, the laborer, in an action to recover for his services, must state the substance of the contract in his complaint, and he must also allege its conditions and a compliance with them, which allegations must be proved on the trial, if issue is taken upon them, or he cannot recover. Adams v. Mayor of New Torh, 4 Duer, 295. If such a contract requires that a certificate of the performance of the work is to be given by some officer or other person, as a condition entitling the laborer to claim a stipnlated payment, the giving of such certificate by the person named, and in the form and terms prescribed, is a condition precedent to a right of action. lb. When a contract re- quired the work upon certain houses to be done in strict accordance and conformity, in all respects, with the specification for said buildings ; which specification was annexed, and final payment was to be made when the owner should receive from the architect his certificate that 374 COMMON COUNTS. Work, labor and materials furnished. the work vr&& fully cmd completely finished according to the specifica- tion, it was held that a certificate of the architect that the houses were finished in such a manner that he would accept them if he were the owner, and that he was satisfied as to the work and materials, was not sufiBcient to authorize a recovery of the price. Smith v. Briggs, 3 Denio, 73. And see Ma/rtin v. Leggett, 4 E. D. Smith, 255 ; Smith v. Brady, 17 N. T. 176 ; Cunningham v. JoTies, 20 id. 486; Yol. 1, 224. But if such certificate is given, and there is neither fraud nor palpable mistake, the certificate will be conclusive upon the parties, and it will en- title the contractor to recover without any other proof of the actual performance of the work. Adams v. Mayor of New York, 4 Duer, 295. And see Bloodgood v. Ingoldsby, 1 Hilt. 388 ; Orube v. Schult- heiss, 57 N. T. 669 ; Stewart v. Keteltas, 36 id. 388 ; Wyckoff v. Meyers, 44 id. 143. If, however, the contract requires that the mate- rials shall be of the best quality and the work performed in the best manner, subject to acceptance or rejection by an architect, and all to be done in strict accordance with the plans and Specifications, and to be paid for when done completely and accepted, there are two distinct and independent provisions to be satisfied before there can be a recovery, namely, the performance of the contract in the manner specified, and acceptance by the architect ; and if the architect accepts work of a dif- ferent class, or materials of an inferior quality, such acceptance will not bind the owner nor relieve the contractor of the agreement to perform according to the plans and specifications. Olacius v. Black, 50 N. Y. 145 ; S. C, 10 Am. Eep. 449. If it is shown that the contractor lias made application to the proper architect for the requisite certificate, and that he has fraudulently collusively, or unreasonably and in bad faith refused to certify, it would be proper for the plaintifi" to give other evidence which shows per- formance and a right to recover. Thomas v. Flewry, 26 N. T. 26 • Smith V. Brady, 17 id. 173, 176 ; United States v. Robeson, 9 Peters 319 ; Barton v. Hermamn, 11 Abb. (E". S.) 378 ; Voorhis v. Mayor of New York, 46 How. 116. See Yol. I, 225. So he may recover for the work done without producing the certificate, when the completion and acceptance of the work have been prevented by the defendant. Kvngsley v. City of Brooklyn, 78 N. T. 200. See Ralston v. Eohl, 30 Ohio St. 92. So where the refusal or failure of the architect to give the certificate arises from some cause which merely stays his hand but does not operate upon his judgment, as, for example, physical in- capacity, death, or a restraining order of the court, there may be a recovery without the production of the certificate on proof of the facts COMMON OOUJSTS. 375 Work, labor and materials furnished. showing the disabihty. See Bowery National Bank v. Mayor, 63 N. T. 336. A party who has fully performed a special contract for work and materials is not bound to declare upon contract, but may declare gen- erally for the value of the work, and the contract may be referred to to determine the value. Farron v. Sherwood, 17 N. Y. 227 ; Fells V. Yestmali, 2 Keyes, 152 ; Higgins v. Newtown and, Flushing R. R. Co., 66 ]Sr. T. 604. If, however, the plaintiff sets forth in his complaint a contract for work and material which provides that pay- ment shall be made when the work is done according to the contract, approved of by the architect, and a certificate of performance given by him, it must further allege performance of the contract, its approval and a certificate to that effect given by the architect, or in heu of such approval and certificate, facts legally excusing its non-production. If the complaint, after setting out the contract, merely alleges perform- ance according to the contract, acceptance by the defendant, and that the architect has unreasonahly refused to give his certificate, it will be bad on demurrer as not stating facts sufficient to constitute a cause of action. Schenke v. Rowell, 7 Daly, 286 ; S. C, 3 Abb. JST. C. 42. But see Bowery National Bank v. Mayor, 63 N. T. 336. A contract for work and materials will be properly performed, although the contractor has done more labor, and furnished more materials than the contract required ; and he will be entitled to recover the contract-price, unless it is shown that such excess was detrimental to the obi'ect for which the work was designed, or unless it renders the thing essentially different from that contemplated. Turner v. Haight, 16 N. Y. 465. Where a contractor agrees to accept a bond and mortgage upon the premises upon which he has worked, and for which he has furnished materials, as a security for a part of his pay, and he agrees that such bond and mortgage shall run one year from the time the work is finished, and the bond and mortgage given, he cannot maintain an action for the recovery of the price of such woi'k, etc., until the expira- tion of the year, unless the owner has refused to give such bond and mortgage, upon a proper demand, or he is in default in that respect, after the work was completed. Ha/rtmam, v. Proudfit, 6 Bosw. 192. Where a surety is given for the performance of a specified work, if any material alterations of the agreement relating to such work are made, without the consent of the surety, that will discharge him from all liability. Giles v. Crosby, 5 Bosw. 389. 376 COMMON COUNTS. Money lent and advanced. § 6. Money lent and ad.vanced. It is a rule of general application, that money lent and advanced by one person to an other, at his request, and for his uses or pui-poses, will sustain an action, in favor of such lender, against the borrower. The exceptions to the rule are few, and they relate to such cases as are in violation of some rule of law or of public policy. The money need not be advanced to the person who is liable to pay it ; for, if A. requests B. to advance money to C, and the money is accordingly advanced, this will be treated as a loan to A., although C. was the actual recipient of it. Ha/rris v. Huntback, 1 Burr. 373. An advance to a constable who has criminal process to serve, which was procured by the person advancing the money, is a loan, and the lender may recover the amount of the constable, notwith- standing the latter may -have traveled to a distant place to serve such process. ParTcer v. Newland, 1 Hill, 87. The constable has no claim against the party procuring such process ; his claim is against the county. lb. "Where a loan is obtained by false and fraudulent representations of the borrower as to his pecuniary condition and circumstances, and the borrower gives his note, payable at a future day, for the amount loaned, the person defrauded may waive the tort, and notwithstanding the credit, bring an action immediately upon the implied promise to repay the loan. Nelson v. Hyde, 66 Barb. 59. In order to sustain an action for money loaned, there must be some affirmative proof that there was a loan. Evidence that the plaintiff delivered money to the defendant, who used it, wiU not alone sustain an action for money lent. Black v. White, 10 Jones. & Sp. 446. Where it is shown that one person received money from another, and no explanatory evidence is given, the legal presumption is, that it was delivered as a payment, and not by way of a loan. Morse v. Bogert, 4 Denio, 108 ; S. C, 1 N. Y. 377. But, where it was shown that a witness applied to the defendant, and asked him if he had had any money of the plaintiff, and that the defendant replied that he had had twenty dollars of him ; and that to this response, the witness said, that the plaintiff told him to speak to defendant about it, to which the defendant made no reply, but turned and walked away ; this was held to be sufficient evidence of a loan to be submitted to a jury, and that their finding for the plaintiff was conclusive. lb. Where a draft is issued by a bank of this State, which is void because it was issued in violation of a statute of this State, and a corporation of another State advances the money upon it, in good faith, such corporation may recover the money advanced, from the person who received it in COMMON COUNTS. 377 Money lent and advanced. exchange for such draft. Bank of Chillicothe v. Dodge, 8 Barb. 233. In such a case ignorance of the laws of tliis State, by the officers of the corporation, is ignorance of fact, not of law. lb. Money lent to one partner of a firm, for the use of the partnership, is a proper case of money lent and advanced to all of the partners. Wright v. HooTcer, 10 N. Y. 51. See National Union Bank of Waiertown v. Landon, 66 Barb. 189 ; S. C. affirmed, 45 N. Y. 410. In an action for money lent it is not a sufficient answer to show that the defendant has given his check to the plaintiff for the amount, unless it shows that the check has been negotiated to a third person, who owns or claims to own it. Stracy v. Stevens, 4 Duer, 668. So the mere giving of a negotiable promissory note, and its indorsement to a third person, does not constitute a defense to an action for the money lent, where the plaintiff claims that such note has been re-transferred to himself. Burdick v. Green, 15 Johns. 247; HiighesY. Wheder, 8 Cow. 77. If money is lent, and the borrower obtains an extension of the time for payment by means of fraud, such fraud will vitiate the exten- sion, and the money may be immediately recovered. French v. White, 5 Duer, 254. The plaintiff sued the defendant, who was a commercial traveler, and who was authorized to deduct certain sums out of moneys which ho might collect for the plaintiff ; which sums were to be repaid out of the commissions received by the defendant from his other employers, and it was held that the plaintiff was entitled to recover for money lent. Shepherd v. Philips, 2 Car. & Kir. N. P. 722. Money which is lent for the purpose of being employed for an object or purpose which is in violation of the statute, or which is illegal at common law, cannot be recovered back. See title Illegality, etc But where a bank issues a draft, which is void because it violates a statute prohibiting the issues of bills or notes not payable on demand, that will not prevent the holder of such draft, who advanced the money to such bank, from recovering the money advanced, either upon the basis of the contract of loan, treating that as valid, and rejecting the illegal security, or upon a disaffirmance of the contract, as for money had and received. Oneida Bank v. Ontario Bank, 21 N. Y. 490. The right of action for the money may be transferred by a sale and in- dorsement of such draft, although that may be held to be void. lb. The plea of ultra vires will not, as a general rule, prevail, whether interposed for or against a corporation, when it will not advance justice, but on the contrary will accomplish a legal wrong. Whitney Ai^ms 48 378 COMMON COUNTS. Money paid, laid out and expended, etc. Co. V. Ba/rlow, 63 N. Y. 62 ; S. C, 20 Am. Eep. 504 ; Railway Co. V. McCarthy, 96 U. S. 258 ; Hurd v. Green, 17 Hun, 327. A firm is not liable for advances which are made to a mere agent, although he may have a partial interest in the profits of particular transactions, when it is not shown that the money was advanced on account of the partnership or for its benefit. Porter v. Ldbaoh, 2 Bosw. 188. Where money was lent to the defendant, upon his giving the indorsed note of a third person as security therefor, and such note was, at maturity, surrendered to the borrower at his request, and upon his promise to substitute another note of a specified character yj its place, which he refused to do, it was held that an action might be maintained against him upon the original loan. Westcott v. Keeler, 4 Bosw. 564. Such a cause of action is assignable, and the action may be brought in the name of the assignee. lb. "Where a commission merchant makes advances upon the faith of goods which are consigned to him for sale, he must rely, in the first place, upon the proceeds of the sale of those goods for his reimburse- ment, and he must show that fund to be insufiicient before he can re- cover the amount from the consignor personally. Gihon v. Stanton, 9 N. T. 476 ; Mottram v. Mills, 2 Sandf. 189. "Where a factor accepts the bills of his principal, drawn upon him on the credit of consignments to him, as between them, the bills are the proper debts of the drawer, and the acceptor stands as surety simply, the merchandise in the hands of the latter constituting a fund for the payment of the bills ; all that the factor can require of his principal is indemnity, and the amount actually paid by him, if any, beyond the proceeds of the consignments. Hidden v. Waldo, 55 N. Y. 294. Where, therefore, the holder of such bills receives from the factor, in full payment thereof, goods so consigned of a less value than the amount of the bills, the principal is entitled to the benefit of the transaction, and the factor cannot charge him the difference between the amount of the bills and the value of the merchandise. lb. § 7. Money paid, laid out and expended, etc, "Where one per- son pays money for another, upon his actual request, for a lawful pur- pose, the right to recover the sum paid is so plain that no authorities need be cited in support of the principle. But there are numerous cases in which there is a legal liability for the repayment of money paid, although no actual request was made. In such cases, however, the right of recovery is controlled by well-settled rules of law. If the plaintiff can show that the defendant actually requested the plaintiff COMMON COUNTS. 379 Money paid, laid out and expended, etc. to pay the money, or that he requested the plaintiff to become the surety or other secui'ity, so that he was legally compellable to pay the amount, or that he omitted the discharge of some legal duty which he was bound to discharge, but which he omitted, so as to justify the plaintiff's payment, in these, and similar cases, the plaintiff may re- cover of the defendant the amount so paid ; though, in the latter class of cases, the amount must be a just and reasonable one. Where the plaintiff indorsed a note for the accommodation of oneL., who then loaned it to the defendant, for his accommodation, and at his request, upon his promise to pay it at maturity, and the defendant ne- gotiated it at a bank, but afterward neglected to pay it, it was held that the plaintiff was entitled to recover of the defendant the amount which the plaintiff was compelled to pay to the bank, upon a judgment obtained by it against the plaintiff upon such note. JSfeass v. Mercer, 15 JBarb. 318. In such a case the note does not become a valid se- curity until negotiated ; and when that is done, the law implies a prom- ise by the defendant to repay the sum which the indorser is compelled to pay, as well as a sum sufficient to cover the costs and expenses paid, lb. ; JElwood v. Deifendorf, 5 Barb. 399, 41 3 ; Baker v. Martin, 3 id. 635. But a surety has no right to incur any unnecessary costs and ex- penses, and then claim to recover them of the principal. Holmes v. Weed, 24 Barb. 546. Putting in a useless and unjust defense, and fail- ing to sustain it, is an instance in which the surety will be precluded from recovering from his principal any thing except the principal sum, interest thereon, and the costs of a default. lb. Where one person becomes a surety, or an indorser for another, at his request, the law will imply a promise, on the part of the person making such request, to pay all sums which such surety or indorser is compelled to pay in consequence of becoming such surety or indorser. The principal, by making such a request, places the surety in a condi- tion which will compel him to pay the demand, if the principal omits to do so, and the request to become surety, is a request to pay, if the principal fails to discharge the debt. It is an equitable principle of very general application, that where one person is in the situation of a mere surety for another, whether he became so by actual contract or by operation of law, if he is compelled to pay the debt which the other in equity and justice ought to have paid, he is entitled to relief against the other, who was, in fact, the principal debtor. Hunt v. Amidon, 4 HiU, 345, 348, 349. See Holmes v. Weed, 19 Barb. 128; Wilson y. Crawford, 47 Iowa, 469 ; Ko^iitzhy v. Meyer, 49 N. Y. 571 ; Thomp- 380 COMMON COUNTS. Money paid, laid out and expended, etc. son V. Taylor, 72 id. 32 ; Comstook v. Drohan, 71 id. 9. A con- tract to indemnify is not implied where there is an express agreement of another liind. Toussaint v. Martvrmomt, 2 Dumf . & East, 646. And where two persons agree to exchange their notes of equal amount, and that each shall pay the note made by himself, there will not be any implied contract by the payee of either note to indemnify the maker. Wooster v. Jenkins, 3 Denio, 187. Where notes were thus exchanged, and then negotiated, and at maturity one of the makers took up his note, and also made payments upon the other note, which was made by himself, it was held that he could not maintain an action against the other exchanging party for the money which he had so paid upon his own note. lb. The general rule is, that the plaintiff must have paid money to en- title him to recover for money paid, etc. GuTnming v. Hackley, 8 Johns. 202. And where a surety merely gave his bond in discharge of his liability as indorser for t^e defendants, this was held to be insuffi- cient to maintain an action for money paid. lb.; Taylor v. JSiggins, 3 East, 269. Where arbitrators award that their fees shall be paid by one of the parties, the other party cannot recover such fees in the action upon the award without showing that he has made actual payment of them. A mere liability to pay will not give a right of action. Piatt v. Smith, 14 Johns. 368. But where two parties employ an arbitrator, and one pays the arbi- trator's fees to enable him to take up the award, in a case in which the result of the award does not entitle either party to costs, the party so paying is entitled to recover from the other a moiety of the sum paid, as money paid to his use. Marsack v. Webber, 6 Hurlst. & Norm. 1. The rule is not inflexible that money must be paid to sustain an ac- tion, for if a surety pays a debt with property, and the debt is thus dis- charged, this wiU be equivalent to a payment in money. AinsUe v. Wilson, 7 Cow. 662; Bonney v. Seely, 2 Wend. 481. But in such cases the surety cannot recover more than the amount paid ; and it will be competent for the defendant to show the value of the property deliv- ered in discharge of such debt, for the value of that property, and not the amount of the debt, is the measure of damages, if the property is worth less than the amount of the debt. lb. ; Kendrich v. Forney, 22 Gratt. 748 ; Feamster v. With/row, 9 W. Va. 296 ; Miles v. Bacon, 4 J. J. Marsh. (Ky.) 457. So, where a debt is discharged upon the execution and delivery of a negotiable promissory note which is given by the surety and accepted COMMON COUNTS. 381 Money paid, laid out and expended, etc. as payment, this will sustain an action for money paid. Gumming v. Hackley, 8 Johns. 202 ; Ba/rclay v. Oooch, 2 Esp. N. P. 5Y1 ; Howe V. Buffalo, New Yorh cSs Erie B. B. Co., 37 N. T. 297 ; Boukoare v. Bohmson, 8 Tex. 327. This action lies in cases in which the plaintiflE is compelled to pay m:oney, in consequence of the wrongful act of the defendant. Van Santen v. Standa/rd Oil Co., 81 N. Y. 171. And where a bill of ex- change, which has been accepted by the plaintiff, was deposited by A. with the defendant as security for a bill of goods sold to A., although the plaintiff had not received any value, and A. afterward paid for the goods and demanded the bill of the defendant, who refused to give it up, but indorsed it to B. for value, who sued the plaintiff thereon and recovered ; it was held that the plaintiff was entitled to recover of the defendant the amount of such bill, as for money paid to his use. Bleor- den V. Charles, 7 Bing. 246. Again, A. having accepted a bill drawn upon him by B. for money lent by B. to A., compounds with B. and his other creditors and pays the composition. If an indorsee of the bill afterward sues A. and compels him to pay the amount with interest and costs, A. may recover the amount from B., as money paid to B.'s use. Hamdey v. Beverly, 6 Man. & Grang. 221. The plaintiff must show that there was an actual request by the de- fendant to pay the money, or that the money was paid in discharge of some liability which the plaintiff had taken upon himself by the de- fendant's authority. BowTby v. Bell, 3 Man., G-rang. & Scott, 284, 293. If a party authorizes a broker to buy shares for him in a par- ticular market, where the usage is, that, when a purchaser does not pay for his shares within a given time, the vendor, giving the purchaser notice, may resell and charge him with the difference, and the broker acting under the authority buys at such market in his own name ; such broker, if compelled to pay a difference on the shares through the neg- lect of his principal to supply funds, may sue his principal for money paid to his use. Pollock v. Stables, 12 Ad. & Ell. (N. S.) 765 ; White- house V. Moore, 13 Abb. 142. And it is not necessary in such action to allege or prove that the principal knew of such custom. lb. If an accommodation acceptor defends an action, at the request of the defendant, who received the money on such accommodation paper, he wiU be liable to pay the costs incurred in making such defense. Garrard v. Coti/reU, 10 Ad. & Ell. (N. S.) 679. An executor who is compelled to pay a legacy duty for the benefit of a particular legatee may recover of such legatee the amount so paid as for money paid tO' his use. Bate v. Payne, 13 Ad. & Ell. (N. S.) 900. 382 COMMON COUNTS. Money paid, laid out and expended, etc. It is a general rule that one person cannot create a debt against another without his consent, express or implied; and, therefore, the general rule in relation to voluntary payments is, that if one person pays the debt of another without his request, either express or im- plied, or without compulsion, such payment is a voluntary one, and the amount paid cannot be recovered back. Ingraham v. Gilbert, 20 Barb. 151. In the case last cited, the plaintiff had volunteered to pay a debt which the defendant owed to a third person, but without any previous request by the defendant ; and in an action by the plaintiff for money paid, the referee found that the payment was made, and that the de- fendant afterward sanctioned and adopted the payment, and promised to repay the amount to the plaintiff ; but it was held that this would not sustain the action. If there is no subsequent promise by the defendant to repay money thus paid, it is clear, beyond question, that no action will lie to recover the money so paid by the plaintiff. And the rule is the same, even in case the defendant subsequently expressly promises to repay the sum paid. And the principle is this : No action will lie for the breach of any promise which is not made or founded upon a sufficient legal consideration ; and where the consideration is a past or executed one, which originated without the request of the promisor, either express or implied, no new promise can make the defendant's liability greater or different from what it originally was, unless such new promise is based upon a new consideration ; and, therefore, no promise can make that a debt which never was a debt, independently of the promise. Ingraham v. Gilbert, 20 Barb. 151; Hunt v. Bate, Dyer, 272; Ehle V. Judson, 24: "Wend. 97, 99 ; Jeremy v. Goochman, Cro. Eliz. 442 ; Barker v. Halifax, id. 741 ; Docket v. Yoyel, id. 885 ; MonJcmam, v. Shepherdson, 11 Ad. & Ell, 411 ; Eastwood v. Kenyan, id. 438 ; Hopkins v. Logan, 6 Mees. & Wels. 241 ; Beammont v. Reeve, 8 Ad. & Ell. (N. S.) 483 ; 'Smith, v. Ware, 13 Johns. 259 ; Geer v. Archer, 2 Barb. 425 ; Nash v. Russell, 5 id. 556 ; Van Derveer v. Wright, 6 id. 549, 561; Stafford v. Bacon, 1 Hill, 538; Watkins v. HalsUad, 2 Sandf. 311 ; Goulding v. Damison, 28 Barb. 438; Taylor v. Bald- win, 10 id. 626 ; Ghilcott v. Trimble, 13 id. 502 ; Ohaffee v. Thomas, 7 Cow. 368. And see Goulding v. Bamidson, 26 N. T. 604, 608-620. In one case the lands of the plaintiffs and those of the defendants joined, and the plaintiffs by mistake paid the taxes assessed on the de- fendants' lands, which sum the defendants, upon being notified of the facts, promised to repay ; and it was held that an action could be COMMON COUNTS. 383 Money paid, laid out and expended, etc. maintained for the recovery of the money. Nixon v. Jenkins, 1 Hilt. 318. This case, however, is opposed to the great current of authority, and none of the numerous opposing cases are cited or noticed in the opinion, and it must be regarded as of no authority. Boty v. Wilson, 14 Johns. 3Y8, may also seem opposed to the true rule, but a careful examination will show that it is not. In that case the plaintiff was a sheriff, and he held the defendant in custody upon an execution issued against his body. The plaintiff, as such sheriff, permitted the defendant, at his request, to go at large, and the sheriff was sued for an escape and was compelled to pay the judgment upon which such execution was issued. The defendant subsequently promised to repay the amount, and he was held liable. In this case, therefore, there was a liability of the defendant upon two grounds ; one of which was, that he was permitted to go at large at his own request, thus subjecting the sheriff to a legal liability by complying with his request ; and again, if the escape had been wrongful on the part of the defendant, thus subject- ing the sheriff to a liability for which an action would lie. A payment, which is made by the request of an agent of the defendant, will render him liable, if the agent had either a general or a special authority for the purpose. Hearne v. Keene, 5 Bosw. 679. If a person voluntarily, and without any sort of compulsion, pays money which is demanded of him, and which is claimed as a matter of right by the person making the demand, such payment, when made with a full knowledge of the facts, will be a voluntary one, and cannot be recovered back by action. Wyman v. Farnsworth, 3 Barb. 369 ; W. Y. and Harlem E. R. Co. v. Marsh, 12 N. T. 308 ; Flower v. Zance, 59 id. 603. So if money .is paid upon a disputed claim, with full knowledge of the facts, the money cannot be recovered back, notwithstanding the claim was unfounded. Mowatt v. Wright, 1 Wend. 355 ; Morton v. Ostrom, 33 Barb. 256 ; Forrest v. Mayor of New York, 13 Abb. 350 ; Fleetwood v. City of New York, 2 Sandf . 475. And a concealment by the claimant of a fact entirely irrelevant to the matter, and which in no way affects or qualifies the rights of the parties, gives no right of action to recover back the moneys paid. Flower v. Lam,ce, 59 N. Y. 603. So it is well settled in this country that, where there is no mistake of fact, a voluntary payment made under a mistake of law cannot be revoked. Jacobs V. Moram,ge, 47 N. T. 57 ; Doll v. Earl, 65 Barb. 298 ; S. C, 59 K Y. 638; Nash v. Mayor, 9 Hun, 218; Commercial Bamky. City of Rochester, 42 Barb. 488. Where there is no compulsion to pay the money, it will be of no avail 384 COMMON COUNTS. Money paid, laid out and expended, etc. to pay the amount under protest ; it will still be a voluntary payment. Flower v. Lance, 59 N. Y. 603. See, also, Western Union Telegrwph Co. V. Mayor, 28 Ohio St. 521. If an assessment upon real property is paid without objection, the money cannot be recovered back, on the ground that there are irregu- larities in the proceedings for making such assessment, when such irregularities are apparent upon the record of such assessment, and the party paying had the means of knowing of the irregularity. /Sandford V. Mayor, etc., of New YorTc, 33 Earb. 147; S. C, 20 How. 298; 12 Abb. 23. So where the assessment of a tax is void, and the defect appears upon the face of the collector's warrant, if the tax is voluntarily paid on demand, without objection or protest, no action will lie to re- cover it back. New YorTc and Harlem M. R. Co. v. Marsh, 12 N. T. 309. To warrant an action to recover back money paid by coercion of law upon a judgment, or tax levied, or assessment laid, it must ap- pear that the judgment or proceedings were prima facie regular, so as not themselves to furnish evidence of their own invah'dity ; and it must also appear that the rights and position of the parties have been changed since the payment was made, as by a reversal for error, or a setting aside for irregularity or illegality. Peyser v. Mayor, 70 N. Y. 497 ; S. C, 26 Am. Eep. 624. But where one on presentation and demand pays under protest an assessment, regular upoa its face, made by a municipal corporation for a local improvement, and the assessment is afterward set aside and adjudged void, he may recover the amount so paid. lb. And see Mayor v. Biker, 38 N. J. 225 ; S. C, 20 Am. Eep. 386; Tuttle v. Everett, 51 Miss. 27; S. C, 24 Am. Eep. 622. If lands are sold for taxes, and are subsequently redeemed from the sale, the owner may recover such sum as he has paid to a purchaser at the tax sale for his title, who mistakenly represents that he has a convey- ance of them under such tax sale, which induces the owner to pay the- money. Martin v. McCormich, 8 N. Y. 331. So where a person purchases a supposed interest in real estate, and pays money therefor, he may recover the amount back from the corporation which assumes to sell such interest, by virtue of an assessment, if such assessment is void. Gardner v. Mayor, etc., of Troy^ 26 Barb. 423. Actions for money paid are frequently brought for the purpose of compelling contribution from those liable to contribute. The right to compel contribution may arise from an express contract, if one is made. The principle of contribution among several sureties is not founded upon an express contract nor dependent upon it, but it is the result of a general equity which arises from the principle of COMMON COUNTS. 385 Money paid, laid out and expended, etc. equality of burden and of benefit ; and, therefore, when there are three sureties who are bound by different instruments, but for the same prin- cipal and for the same debt, they are liable to contribution. Dering V. Earl of Winchelsea, 1 Cox's Ch. 318; S. C, 2 Bos. & Pul. 270; Campbell v. Mesier, 4 Johns. Ch. 334 ; Aspinwall v. Saohi, 57 N. Y. 331, 336 ; Armitage y. Pulver, 37 id. 494 ; S. C, 5 Trans. App. 186. Where several sureties, without any communication with each other, sign a note for a principal debtor, and one of the sureties is compelled to pay the whole note, he can recover a ratable proportion from each of the other sureties. Norton v. Coons, 6 N. T. 33. "Where there is an express agreement between sureties prior to the execution of the obligation as sureties or contemporaneously with it, by which one surety agrees to indemnify the other from loss, this agree- ment, though merely verbal, is valid, and may be proved by parol evi- dence. Barry v. Hansom, 12 N. Y. 462. Such an agreement does not vary or contradict the written instrument, and it is a bar to an ac- tion by the person making it, if he sues the other for contribution. lb. See Vol. I, 680. Where there is no express agreement between sureties the right to contribution between them arises from the principle of equal obligation to pay the principal's debt. Tobias v. Rogers, 13 N. Y. 59. And if one of the sureties is discharged from liability by reason of a bank- rupt's discharge which is granted to him, he will be discharged from liability to contribution from the time he obtained such discharge as a bankrupt. lb. The right to contribution, therefore, is liable to be de- feated by express agreement between the sureties, or by operation of law, as in the case last cited. Two persons agreed to bear equally all losses which might be sustained in consequence of one of them be- coming bail in an action for a third person. A loss ensued which they paid in equal proportions ; and, subsequently, the principal debtor re- funded to one of these persons the amount paid by him, and it was held that he was bound to contribute one-half of that amount to his associate surety. Smith v. Hicks, 5 Wend. 48 ; 1 id. 202. Where there are several sureties and one of them takes a chattel mortgage from the principal debtor to secure him as such debtor, he cannot afterward discharge such mortgage without the consent of his co-sureties, and if he does so without their consent, they will be dis- charged from liability to contribution to him. Bamsey v. Lewis, 30 Barb. 403. In actions for joint torts a joint liability exists, and a recovery may be enforced against any one of the defendants; but the party paying 49 386 COMMON COUNTS. Money paid, laid out and expended, etc. such claim has no right to contribution from the other defendants, even although by the payment he has relieved them from their liability ; and the principle is that whenever the liability arises for a tort there is no contribution. Andrews v. Murray^ 33 Barb. 354 ; Merryweather V. Nixon, 8 Term E. 186 ; Jones v. Barlow, 62 N. Y. 202, 211 ; Mil- ler V. Fenton, 11 Paige, 18; WeUe v. limilmd, 42 How. 399; S. C, 4 Daly, 550. Where a husband goes abroad and leaves his wife, who dies in his ahsence, a third person, who voluntarily pays the expenses of her funeral, which is suitable to the rank and fortune of her husband, may recover the amount so paid, of the husband, although the payment was made without his knowledge, consent or request, especially if such payment is made by the father of the deceased wife. Jenkins v. Tucker, 1 H. Bla. 91. So where the husband and wife are living separately from each other, the husband is liable for the necessary expenses of a decent interment of his ■wife, whether the person incurring the expense is an undertaker or a mere volunteer. Ambrose v. Kerrison, 1 J. Scott (10 C. B.), 7Y6. So, if executors neglect to give orders for the funeral of the testator, and they have assets sufficient for that purpose, they are liable, upon an implied promise, to the person who furnished the funeral in a manner suitable to the testator's degree and circumstances. Tug- well V. Hayman, 3 Camp. 298. The defendant's wife, many years before her death, voluntarily left his house, and went to reside at her brother's house about a mile dis- tant, where she continued to reside and live apart from her husband until her death, when the brother, without any communication with the husband, buried her in a suitable manner ; and it was held that the husband was bound to pay to the brother the expenses of the funeral. BradshoAJO v. Beard, 12 C. B. (N. S.) 344. An obligation is implied on the part of an executor or administrator to pay the funeral expenses out of the assets of the deceased, as the barial of the dead is an act of necessity, and the presumption being, in the absence of any thing to the contrary, that the deceased wished to be buried in accordance with the usages and customs of society, and meant that the costs and charges thereof should be defrayed out of his estate. Hewett v. Branson, 5 Daly, 1. Such costs and charges have a preference over all debts against the estate as a part of the expenses of the trust. Patterson v. Patterson, 59 N. Y. 574 ; S. C, 17 Am. Rep. 384 ; France's Estate, 75 Penn. St. 220 ; United States V. Eggleston, 4 Sawyer, 199. And a person who defrays the neces- COMMON COUNTS. 387 Money paid, laid out aud expended, etc. saiy funeral expenses of an intestate, tbougli before letters of adminis- tration are granted, is entitled to be reimbursed out of the assets which come into the hands of the administrator. Rappelyea v. Russell, 1 Daly, 214. Where the deceased wife had a separate estate, and the husband paid the expenses of her funeral, he was allowed therefor in the settlement of her accounts as her personal representative. MoGue v. Garvey, 14 Hun, 562. A husband is not liable for money lent to his wife, though it is after- ward applied by her in procuring necessaries, for the supply of which he would have been liable. Knox v. Bushell, 3 J. Scott (N. S.), 333 ; 3 C. B. (N. S.) A. lent B.'s wife a sum of money for the purpose of enabling her to pay debts and provide herself a passage to the Cape of Good Hope, whither she was going to join her husband at his request, and the money was so applied by her, but it was held that A. could not recover any part of the amount from B. lb. A. went abroad in 1852, leaving his wife and three children, with what a jury found to be a sufficient maintenance during his absence ; on his return in 1856, he found that his wife had formed an adulterous connection with another man, who lived with her and passed by her husband's name, and A. immediately removed his children on learning these facts ; and it was held that, under these circumstances, A. was not liable for medicines and attendance furnished for his children at his wife's request, although the plaintiff was not aware of the adulterous state she was living in at the time. lb. But if a husband lives in adulterous intercourse with his servant girl, this will justify the wife in leaving his house and living separately from him, and she is entitled to a reasonable support at his expense, and, therefore, he is liable in such a case for the necessaries which are furnished to her, although he may have forbidden all persons from trusting her on his account. Syhes v. Ilalstead, 1 Sandf. 483. Such conduct on the part of a husband is equivalent to turning his wife away. And she is not bound to return to his house and board in a separate apartment at the husband's request, while she is prosecuting a suit against him for a divorce ; and her refusal to return on the hus- band's offer of a separate room in his house with provisions, etc., will not compel her to return, nor exempt him from liability for such neces- saries as are furnished to her. lb. The adultery of a wife living apart from her husband destroys her implied agency to bind him by her con- tracts for necessaries. Cooper v. Lloyd, 6 J. Scott (N. S.) 6 ; C. B. (N. S.) 519 ; anU, 330. 388 COMMON COUNTS. Money paid, laid out and expended, etc. Where money has been paid in pursuance of an agreement which is illegal and void by the common law, or because it violates a statute, the money so paid cannot be recovered back. Sharp v. Wright, 35 Barb. 236. In such cases the law will neither enforce the agreement to pay the money, nor give damages for a breach of it ; and if the money has been paid, it will not aid in a recovery of it by the person paying it. lb. And see Stokes v. Twitohen, 8 Taunt. 492. Money paid by one party, in part performance and in furtherance of a contract in violation of law or of public policy, which is capable of execution by the acts of the parties themselves, cannot be recovered back, where both parties are in pari delicto. No ' distinction can be made between cases of partial and of entire performance ; a party can- not revoke what has actually been performed, and from which he may have derived, or from which he sought and expected to derive benefit, and claim a restoration or compensation therefor, on the pretext that he has repented. Knowlton v. Congress, etc., Spring Co., 57 N. Y. 518. But see S. C, contra, 14 Blatehf. (C. C.) 364. See Saynes v- Budd, 83 N. Y. 251. Where an illegal contract has been fully executed, and money paid thereunder remains in the hands of a mere depository, who holds the money for the use of one of the parties to the contract, an action brought to recover the money so, held will be sustained. Woodworth V. Bennett, 43 N. Y. 273 ; S. C, 3 Am. Rep. 706. But it is otherwise where the recovery of the money requires the enforcement by the court of any of the unexecuted provisions of the illegal contract. lb. Where the debtor, in order to induce his creditor to join in the exe- cution of a composition deed, gave him a note for the difference between the amount of the debt and the amount agreed to be paid by the terms of the deed, and the creditor transferred the note before its maturity to a hona fide holder for value, without notice, it was held that the payment by the debtor to the holder of the note was' not voluntarily made, and that the amount paid might be recovered back from the creditor who wrongfully exacted the note, in an action for money had and paid out to his use. Gilmour v. Thompson, 49 How. 198. See SoUnger v. Ea/rle, 13 Jones & Sp. 80, 604. Money which is paid by a party under a compulsion which affects his person or property may generally be recovered back. See Fosha/y V. Ferguson, 5 Hill, 154 ; Eadie v. Slimmon, 26 N. Y. 9 ; Maxwell V. Newbold, 18 How. (U. S.) 511 ; Harmoriy v. Bvngham, 12 N. Y. 99 ; Feyser v. Mayor, 70 id. 497 ; S. C'., 26 Am. Eep. 624. And, where a collector levied upon goods belonging to the plaintiff, by COMMON COUNTS. 389 Money paid, laid out and expended, etc. virtue of a warrant issued against other persons for a debt which he was under no obligation to pay, and the collector threatened to remove the property, and gave the plaintifE written notice that he would sell the property on a specified day, if he did not previously pay the demand, and the plaintiff paid the amount when the collector was about to re- move the property for sale, it was held that the collector was liable in trespass. Wet/more v. Campbell, 2 Sandf. 341, 355. In such a case the tort might be waived and an action maintained for the recovery of the amount paid. Bipley v. Gelston, 9 Johns. 201 ; Valpy v. Manley, 1 Man., Grang. & Scott, 594. A payment made in order to obtain the possession of goods or property to which the party paying the money is entitled, and of which lie cannot otherwise obtain possession at the time, is a compnlsory and not a voluntary payment, and may be recovered back. • Shaw v. Wood- coch, 7 Barn. & Ores. 73. See Harmony v. Bingham, 12 N. Y. 99, 1 17 ; Stenton v. Jerome, 54 id. 480 ; De Bow v. United States, 1 1 Ct. of 01. 672 ; Scholey v. Munford, 60 IST. Y. 498. To constitute a voluntary payment the party paying must have the freedom of exercis- ing his will. "When he acts under any species of compulsion the pay nient is hot voluntary. lb. Where a contract for the sale of personal property is rescinded by the vendor, the vendee may maintain an action to recover back the amount which he has paid upon the contract, without proving a tender or a readiness to pay the whole price. Main v. King, 8 Barb. 535 ; Fancher v. Goodman, 29 id. 315 ; Raymond v. Bearnard, 12 Johns. 274. So where real property has been contracted to be sold, and the vendor neglects to attend at the time and place fixed for the execution of the conveyances, but the vendee attends, and is prepared to perform his part of the contract, the vendee may maintain an action to recover the deposit paid by him to the vendor at the time of making the con- tract of sale. Flynn v. MoKeon, 6 Duer, 203. And the rule is the same where the vendor rescinds the contract or refuses to convey. Gillet V. Maynard, 5 Johns. 85. Where there is a parol agreement for the sale of real estate, and the vendor is guilty of fraudulent representations which are material, the vendee may repudiate the contract and recover any sum which he may liave paid to the vendor on the contract. HeUman v. Stratiss, 2 Hilt. 9. Where the vendor of real estate reserves a right in the contract of sale to declare the contract void upon certain contingencies, and he elects to declare the contract void, as he has a right to do, he must 390 COMMON COUNTS. Money paid, laid out and expended, ete. return to the vendee the payments which he has made before such rescis- sion, or he will be liable to an action for their recovery. XJtUr v. Stuart, 30 Barb. 20. When there is a verbal bargain for the sale of real estate and the vendee enters into possession of the premises and makes payments toward the purchase-price, he cannot remain in possession and still maintain an action to recover the amount so paid, on the ground that the contract is void by the statute of frauds. Ooelth v. White, 35 Barb. 76 ; Abhott v. Draper, 4 Denio, 51. See, also, Haynes v. Hart, 42 Barb. 58. But the rule extends still further than this, for if a vendee of real estate bargains orally for its purchase, and then makes payments toward the purchase-price, he cannot recover from the vendor the amount paid, so long as the vendor is able and willing to complete the contract by giving a valid title of the premises as he agreed. Collier v. Coates, 17 Barb. 471 ; Battle v. Rochester City BanTc, 5 id. 414 ; S. C, 3 N. Y. 88 ; Abbott v. Draper, 4 Denio, 51. The statute of frauds cannot be invoked by the party who refuses to perform, as against one not in de- fault, for the purpose of invalidating that part of the contract which has been executed, and the latter cannot be compelled to relinquish any benefit he has acquired from its partial performance. Harris v. FrinJc, 49 N. Y. 24; S. C, 10 Am. Eep. 318 ; QaMn v. Prentice, 45 K Y. 162 ; S. C, 6 Am. Eep. 68. So where a person has paid money upon an agreement which is void by the statute of frauds, as where he voluntarily paid it upon a verbal promise to answer for the debt of a third person, he cannot recover back the amount thus paid. Westfall v. Parsons, 16 Barb. 645. If a tenant is compelled to pay taxes, rates or assessments, upon real property rented by him, which the landlord is bound to pay, the tenant may recover of the landlord the amount so paid. Baker v. Oreenhill, 3 Ad. & Ell. (N. S. Q. B.) 148 ; Exall v. Partridge, 8 Term E. 308 ; Rogers v. Maw, 15 Mees. & Wels. 448 A plaintiif who has laid out and expended money at the request of the defendant cannot recover interest, in the absence of a contract to pay interest. Carr v. Edwards, 3 Stark. N. P. 132. The fact that a demand was usurious and could not have been enforced is no defense to an action for money paid, brought by one who paid the demand at the request and on behalf of the debtor. McEl/roy v. MoLear, 7 Coldw. (Tenn.) 140. One who pays money at the request of another has a light to recover it back irrespective of the validity of the claim paid, COMMON" COUNTS. 391 Money had and received, etc. unless the act of paying it was itself contrary to law. lb. ; Soulard v. Peclc, 49 Mo. 477. § 8. Money had and received, etc. The action for money had and received is an equitable action, and will lie whenever the defendant has received money belonging to the plaintiff, which, according to natural justice and equity, he ought to refund and pay over. Barnes v. John- son, 84 in. 95; Kingston BanJc v. Mtinge, 66 N. T. 625, 626; Cal- kins V. Griswold, 11 Hun, 208 ; Tugman v. National Steamship Co., 76 N. Y. 207, 210 ; Mdy v. Smith, 13 "Wend. 488, 490. It takes the place of a bill in equity, and should be encouraged within proper limits. It should not be extended, however, to cases in which the de- fendant may be deprived of any right or be subject to any inconven- ience thereby. Moyer v. Shoemaker, 5 Barb. 319, 322 ; Rathhone v. Stocking, 2 id. 135, 145 ; ^¥rigU v. Butler, 6 "Wend. 284, 290. And, in the defense of this action, the defendant will be permitted to show any facts or things which establish that the plaintiff is not, in justice and equity, entitlsd to recover the whole of his demand, or any part of it. Eddy v. Smith, 13 "Wend. 488, 490 ; Moses v. Macfarlen, 2 Burr. 1005,1010, 1012; Barler v. Cary, 11 Barb. 549, 551, 552. As a general rule, the question in this action is, to which party does the money, in equity, justice and law, belong. If to the plaintiff, he may recover ; if to the defendant, he may retain it. Buel v. Bough- ton, 2 Denio, 91, 93. In one case a promissory note was given by the plaintiff for a debt which he owed, and which bore interest, but the note by mistake was not made payable with interest, though it was agreed to be so drawn, and the note was transferred by the payee to a person who again transferred it, and after several trans- fers it came into the hands of the defendant for value. In each of these transfers the note was treated as bearing interest, and when it became due, the plaintiff paid the principal sum, with interest, to the defendant, on the supposition that the note was payable with interest, but he subsequently brought an action to recover the interest, on the ground that it was paid by mistake, but it was held that he could not recover, because the money belonged in justice to the defendant. lb. The law conclusively presumes that one has promised to refund money of another in his hands, which, ex cequo et lono, he ought to refund. Balmsen v. Clemmons, 79 N. C. 556. "Where the parties to an illegal contract are not in pari delicto, the party which has been taken advantage of by the one receiving the money, may recover it back in action for money had and received. Concord v. Delaney, 58 Me. 309. Money paid to be used in efforts to procure the pardon of a criminal 392 COMMON" COimTS. Money had and received, etc. may be recovered back if the efforts have not been made. Adams Ex. Co. V. Reno, 48 Mo. 264. One who wins from a clerk, by gaming, the money of his employer, is liable to the employer in an action for money had and received. Causidiere v. Beers, 1 Abb. Ct. App. 333 5 S. C, 2 Keyes, 198. And it is held that money advanced or contribu- ted for an unlawful purpose can be recovered back by the lender, de- positary or contributor, at any time before it has been actually used or expended. Baihj v. O'Mahony, 10 Abb. (K S.) 270 ; S. C, 1 Jones & Sp. 239. But although money may have passed into the hands of an individual in a way not authorized b}' law, yet if "it was given him to be applied to a specific purpose, and he has so applied it, he cannot be called on to refund it. Town of Verona v. Pechham, 66 Barb. 103. Where money is paid as a mere gratuity, no action will lie to recover it back. Wells v. Wells, 8 Taunt. 264. A party who voluntarily pays the debt of a third person to his creditor, by the delivery of chattels, cannot afterward recover the value or amount from the creditor, as upon a sale of goods or otherwise. It is a voluntary payment, and cannot be recalled. Fowler v. Moller, 10 Bosw. 374. "Where there are several indorsers upon a negotiable promissory note, and they have all been properly charged so as to be liable for its pay- ment, any one of the latter indorsers may pay it and maintain an action against any prior indorser for money had and received thereon. Hays V. Phelps, 1 Sandf . 64. Or the action may be treated as one for money paid, which is the proper form of action. Barker v. Cassidy, 16 Barb. 177; Bradford y. Corey, ^ id. 461; Corey v. White, Z id. 12, 16 ; Leonard v. Barker, 5 Denio, 220. A fourth mortgagee can, as for money had and received, maintain an action against a third mortgagee who, with the consent of the first and second, has sold the entire title for a sum sufficient to pay off all the four mortgagees. Cook v. Basley, 123 Mass. 396. "Where the plaintiff purchased a promissory note and voluntarily paid a sum considerably more than its face for it, the payment was treated as a voluntary one, and it was held that there could be no recovery of the money so paid. Eddy v. Stanton, 21 "Wend. 255. Where a creditor makes a secret agreement with his debtor which renders valueless a security which a surety is entitled to by subrogation, and the surety pays a judgment which was obtained against him by such creditor upon the liability for such debtor, and the payment is made in ignorance of the agreement between the creditor and debtor, the surety may maintain an action against such creditor to recover the COMMON COUNTS. 393 Money had and received, etc amount paid to hitn upon such judgment. Chester v. Bank of King- ston, 16 N. Y. 336. A master whose servant was seduced while working at his house transferred the right of action by a writing, under seal, to the father of the girl, and the father commenced au action in the name of the as signer as the law then required ; and after obtaining a judgment in his name, the master wrongfully acknowledged satisfaction of the judg- ment upon record, and it was held that the father might maintain an action against such master for the amount of the judgment as for money had and received. Stanton v. Thomas, 24 Wend. TO. The principle is elementary that where one person receives money for another, and the law makes it the duty of the person thus receiving it to pay it over to the person for whom or for whose use it is thus re- ceived, a promise to pay it in accordance with the duty is always pre- sumed, and a privity established as matter of law between the parties. Jioss V. Curtis, 30 Barb. 238, 240 ; Mudroek v. Aikin, 29 id. 59 ; CoU V. Daws, 10 N. Y. 335, 341 ; Balmsen v. Olemmons, 19 N. C. 556. A third person who receives money from one party to be paid to an- other cannot interpose the illegality of the original transaction as a defense to an action brought against him to enforce payment, although payment could not have been enforced as between the two parties them- selves. Woodworth v. Bennett, 43 N. Y. 273 ; S. C, 3 Am. Eep. T06 ; reversing 53 Barb. 361. Thus, one who receives money from A. upon a simple trust to pay over to B. cannot resist an action by B. on the ground that it is an action in aid of an illegal agreement. Merritt v. Millard, 3 Abb. Ot. App. 291 ; S. C, 4 Keyes, 208. Where the defendant collected a sum of money for A., with direc- tions from him to pay it over to the plaintiff, it was held that the i"e- ceipt of the money by the defendant, under such circumstances, was equivalent to an express promise by him to pay it over to the plaintiff, and that the latter could maintain an action against him for money had and received. Berry v. Mayhew, 1 Daly, 54. And where a third person receives money due from a debtor to his cred- itor, and does not pay it over to the creditor, in consequence of which the creditor sues- his debtor and recovers his demand, the debtor may sue such third person to recover back the former payment. Priest v. Frice, 3 Abb. Ct. App. 622 ; S. C, 3 Keyes, 222. Where, money is collected and placed in the hands of a supervisor of a town for the purpose of paying the interest which is due upon bonds duly issued by such town, an action will lie by such bondholder against 50 394 COMMON COUNTS. Money had and received, etc. the supervisor, to recover his share of interest money which is due upon his bonds. Gohb v. Dows, 10 N. T. 335 ; Hoss v. Curtiss, 31 id. 606. And see First National Bank v. 'Wheeler^ T2 id. 201. A valid gift of money, deposited in a bank, may be transferred by the -donor to the donee by a delivery by the donor of his pass-book which contains the voucher or evidence of the deposit. And if, after such gift, the donor dies, and his representatives obtain possession ot such pass-book and credit the money from the bank, an action will lie against them by the donee to recover the money. Penfield v. Thayer, 2 E. D. Smith, 305. If a man, through some mistake or misapprehension, or forgetful- ness of facts, has received money to which he is not justly and legally entitled, and which he ought not, in equity or good conscience, to re- tain, the law regards him as the receiver and holder of the money for the use of the lawful owner of it, and raises an implied promise from him to pay over the amount to such owner. Kelly v. Solari, 9 Mees. & Wels. 58 ; Lucas v. Worswick, 1 Mood. & Eob. 293 ; Mihies v. Dun- can, 6 Barn. & Cres. 671, 677; Cobb v. Dows, 10 K Y. 335, 341 ; Goddard v. Merchants' Bank, 2 Sandf. 247. Where a third person is employed to compute interest upon a bond and mortgage, and he does so by making annual rests, and computing interest upon interest, and the debtor pays the principal debt, together with the sum so computed as interest, and both parties suppose the com- putation to be correct, the debtor may maintain an action against the creditor to recover the excess paid beyond the amount due, when com- puted' upon correct principles. Boyer v. Pack, 2 Denio, 107 ; Thomp- son V. Otis, 42 Barb. 461. Where money is erroneously paid by one person to another, in con- sequence of a mutual ignorance as to facts, which, if known, would have prevented the payment, the money so paid may be recovered back. Burr v. Veeder, 3 Wend. 412. Where a contract is made upon an assumed state of facts, as to which there is a mutual mistake, and money is paid upon the contract by one of the parties, he may, on dis- covering the mistake, rescind the contract and recover the money paid. Wheadon v. Olds, 20 Wend. 174, 176 ; ante, 6. An error of fact takes place, either when some fact which really exists is unknown, or some fact is supposed to exist which really does not exist. lb. ; Mowatt V. Wright, 1 Wend. 360. Where money is paid by one party to another, in consequence of a mutual mistake of facts, as to which they were both equally bound to inquire, the money paid may be recovered back. Canal Bank v. Bank COMMON COUNTS. 395 Money had and received, etc. of Albany, 1 Hill, 287 ; Bank of Commerce v. Union Ban\ 3 N. Y. 230. Money paid under a mutual mistake, as the price of that which has no legal existence or validity, may be recovered back as paid without consideration, where the vendor is responsible for the mistake, or repre- sents a person so responsible. McGoven v. Avery, 37 Mich. 120. Where one pays a note under the mistaken belief, induced by the state- ment of the holder, that he had executed it, he may recover the money so paid on discovering that mistake. Lewellen v. Garrett, 58 Ind. 442 ; S. C, 26 Am. Eep. 74. So, if one by mistake pays a forged note, sup- posing the signature to be his own, he may maintain an action to re- cover the money so paid, provided he has been guilty of no laches, changing the situation of the other party to his injury. Welch v. Good- win, 123 Mass. 71 ; S. C, 25 Am. Eep. 24. And see Ogden v. Benas, L. E., 9 0. P. 513 ; S. C, 10 Eng. Eep. 283. Where land is purchased at a fixed price per acre, and in consequence of an error in the survey the vendee pays for more land than is con- veyed, he may recover back the excess although his grantor has sub- sequently conveyed the residue of the land in reliance upon the survey. Grams v. Brinkerhoff, 4 Hun, 305 ; S. C, 6 Sup. Ct. (T. & C.) 630 ; Pickman v. Trinity Church, 123 Mass. 1 ; S. C, 25 Am. Eep. 1. If a property-owner is presented with a bill for water-rents upon lands of another, and pays it in the belief that it is the rent due upon his own lot, he may recover back the amount paid. Dietrich v. Mayor, etc., of New York, 5 Plun, 421. Where an indorser has paid the amount of a note to the holder, under a mistaken belief, founded on the statement of the holder, that he has been duly charged as indorser, or that a prior indorser has been, he may, on discovering that he was not so charged, maintain an action to recover back the amount paid. Lake v. Arti- sans' Bank, 3 Abb. (K S.) 209 ; S. C, 3 Abb. Ct. App. 10 ; 3 Keyes, 276. So the action will lie when, by mistake, two orders are drawn and paid, founded on one and the same debt or consideration. Yernon V. School District, 38 Conn. 112. Ignorance of the laws of a foreign government is an ignorance of fact and not of law ; and in this respect the statute laws of the other States of the Union are foreign laws. Bank of Chillicothe v. Dodge, 8 Barb. 233 ; Hamen v. Foster, 9 Pick. 112 ; Norton v. Marden, 3 Shepley, 45. The same rule prevails in reference to any private statute of which the courts will not take judicial notice without proof, — as of the charter of a private corporation, Drake v. Flewellen, 33 Ala. 106 ; or private statutes of any kind of the provisions of which the public is 396 COMMON COUNTS. Money liad and received, etc. * not presumed to know. Bowie v. Kansas Vity, 51 Mo. 454 ; Covington Drawbridge Co. v. Shepherd, 20 How. (U. S.) 227. There may be instances in which a party paying money under a mis- take of fact cannot recover it back. One of the principles which authorizes a recovery for money received is, that it is unconscientious for the defendant to retain it. And, if a man by mistake pays a de- mand which the party receiving is entitled in justice to retain, no action will lie to recover the money back. Franklin Bamh v. Raymond, 3 Wend. 69, 74. In order to recover back money paid under a mistake of fact, it must appear that the plaintiff was not under either a legal or a moral obliga- tion to pay the money, and that, as against the plaintiff, it would be inequitable for the defendant to retain it. Foster v. Kirby, 31 Mo. 496 ; Jamison v. Ludlow, 3 La. Ann. 492 ; Edgar v. Shields, 1 Grant's Gas. (Penn.) 361. And if it turns out in point of fact that the payee has released any security, or done any act in consequence of such payment, whereby he would lose any right, or be essentially prejudiced if com- pelled to refund it, it cannot be recovered back upon the principle that, as between two innocent persons, that one must lose who has com- mitted the error. Wheadon v. Olds, 20 "Wend. 174 ; McDougall v. Cooper, 31 N. Y. 498 ; Tylout v. Thompson, 20 Browne (Penn.), 27 ; Ouild V. Baldridge, 2 Swan (Tenn.), 295. The drawee of a bill of exchange is bound to know the handwriting of the drawer, and if he accepts and pays the bill to a bona fide holder for value, he cannot recover the money back, although the biU turns out to be a forgery, which would be a mistake of fact by the drawee, in supposing the bill to be genuine. Goddard v. Merchants'' Bank, 4 N. Y. 147 ; Price v. JSfeal, 3 Burr. 1354 ; Bank of Commerce v. Union Bank, 3 N. Y. 230. This rule does not apply when the forgery is in the body of the bill, and the drawer's signature is genuine. lb. If the bill has been "raised," the drawee may recover back the amount paid, on discovering the mistake. White v. Continental Nat. Bank, 64 N. Y. 316 ; S. G, 21 Am. Eep. 612. But see Susquehanna Valley Bank v. Loomis, 85 N. Y. 207 ; affirming S. G, 19 Hun, 230. "Where a party is really mistaken as to the facts, in reference to which he pays money, he may recover it back ; and it is no answer to his action to say that he had the means, -and by a careful attention he might have ascertained the true state of the case. Waite v. Leggett, 8 Cow. 195 ; Townsend v. Crowdy, 8 J. Scott (N. S.), 477. Mere negligence upon the part of one who, by mistake, pays money to one not entitled to it will not defeat the right to recover it back. COMMON COUNTS. 397 Money liad aud received, ete. Kingston Bank v. Eltinge, 40 N. Y. 391 ; Lawrence v. American National Banh, 54 id. 432 ; Brown v. Oravel Road Co., 56 Ind. 110. But this rule is subject to the qualification that the payment cannot be recalled when the position of the party receiving it has been changed in consequence of the payment, and it would be inequitable to allow a recovery. The person making the payment must, in that case, bear the loss occasioned by his own negligence. Mayer v. Mayor of New York, 63 N. T. 455. An error of law exists when a person is truly and fully acquainted with the existence or non-existence of all the material facts of the case, but he is ignorant of the legal consequences which result from them. Mowatt v. Wright, 1 Wend. 360. The general rule is, that a payment, when made by a person who fully understands the facts, but who is ignorant of the law of the case, cannot be recovered back. lb. ; Branham v. San Jose, 24 Cal. 585; Elston v. Chicago, 40 111. 514; Johnson Y.McGinness, 1 Oreg. 292 ; Natcher v. Natcher, 47 Penn. St. 496 ;. Ford v. Brownell, 13 Minn. 184 ; Barber v. Pott, 4 Hurlst. & Norm. 759 ; Remfrey v. But- ler, El. Bl. & Ell. 887. But this rule is subject to the condition that the party receiving the money was guilty of no fraud or improper conduct in inducing the payment ; in which case the rule does not apply. lb.; Chapman v. Spiller, 14 Q. B. 621 ; Li/oermore v. Peru, 55 Me. 469. If a party who pays money is acquainted with the facts, but is ignor- ant of the law of the case, and the party receiving the money know- ingly misrepresents the law in relation to the case, or if he knows that the other party is ignorant of the law, and he fraudulently takes ad- vantage of his ignorance, the money paid may be recovered back. Cook W.Nathan, 16 Barb. 342. And, where the plaintiff paid money un- der a threat of being sued by a plankroad company for the recovery of an alleged penalty of $25 for running a toU-gate, and both the plaintiff and the agent of the company supposed that the penalty had been incurred, when in truth the law did not give any penalty whatever for the acts done, it was held that the plaintiff was entitled to recover the money back. Pitcher v. Turin Plank Road Co., 10 Barb. 436. If one man has obtained money from another through the medium ■ of oppression, imposition, extortion or deceit, or by the commission of a trespass, such money is, in contemplation of law, money received for the use of the injured party ; it is not the money of the wrong-doer, and he has no right to retain it ; and the law, therefore, implies a 398 COMMON COUNTS. Money had and received, etc. promise from him to return it to the rightful owner, whose title to it cannot be destroyed and annulled by the fraudulent and unjust dispos- session. The tort may be waived and an action brought for the recovery of the money upon the implied contract. Chambers v. Lewis, 2 Hilt. 591 ; S. C. affirmed, 28 IST. T. 454 ; Putnam v. Wise, 1 Plill, 235, 240, note ; Neate v. Harding, 6 Exch. 349. If moneys are obtained from a person when he is so drunk as to be incapable of transacting business or of knowing what he is doing, or the force of his acts, it would be a clear fraud, and the money may be recovered back. Hayes v. Huffstater, 65 Barb. 530 ; S. C, 1 Sup. Ct. (T. & C.) 6, Add. But if a man voluntarily pays a debt or claim made against him, for liquor or other property sold him, he cannot ordinarily maintain an action for the recovery of the money paid. lb. The general rule is, that however the payment of a legal claim, or one to which the payee is justly entitled, may be attained, whether by com- pulsion of legal process, threats or menaces of imprisonment, or of per- sonal violence, or by duress of goods, it cannot be recovered back. BragcLon v. Somerhy, 55 Me. 92 ; KoKler v. Wells, 26 Cal. 606 ; Hiclcerman v. Lord, 21 Iowa, 338. The plaintiff must show not only the duress, but also that the demand was illegal. Chandler v. Sanger, 114 Mass. 354 ; S. C, 19 Am. Rep. 367 ; State v. Sluder, TO K 0. 66; Kans. Pao. Ry Co. v. Wyandotte Co., 16 Kans. 587; Diller v. Johnson, 37 Tex. 47. Otherwise he cannot recover back the money paid. Adams v. Peeves, 68 N. C. 134; S. C, 12 Am. Hep. 627; Niohodemus v. East Saginaw, 25 Mich. 456. In order to render the payment of an illegal demand involuntary it must have been made to release the person or property of the party from detention, or to prevent a seizure of either by one hav- ing apparent authority to seize it without resorting to an action Wolfe V. Marshall, 52 Mo. 167 ; Wdbanusee Co. v. Walker, 8 Kans, 431 ; Canvin v. Mayor of Nashville, 59 Tenn. 453 ; Padich v, Hutchins, 95 TJ. S. (5 Otto) 210 ; Harmon v. Harmon, 61 Me. 227 ; S. C, 14 Am. Rep. 556. A protest alone cannot change what would otherwise be in law a voluntary payment into an involuntary one, or change the rights of the parties. Wdbanusee Co. v. Walker, 8 Kans. 431 ; City of Detroit v. Martin, 34 Mich. 170 ; Flower v. Lance, 59 N. T. 603. And a tenant's payment of a sum demanded as rent, made under protest and through fear of the lessor's threats of ejectment, is not such duress as will enable the tenant to recover back the rent, although a greater sum was demanded than was due. Emmans v. Scvdder, 115 Mass. 367. COMMON COUE^TS. 399 Money had and received, etc. One who offers a specified reward for the recovery of lost property is bound to pay it on the return of the property pursuant to the offer. Commonwealth v. Mason, 105 Mass. 163 ; S. C, 7 Am. Eep. 507. See Shuey v. United States, 92 U. S. (2 Otto) 73 ; Janvrin V. Town of Exeter, 48 K H. 83 ; S. C, 2 Am. Eep. 185. And the fact that it is returned by an agent or lawyer, who refuses to dis- close the name of the finder, his client, and who makes threats if the full reward be not paid, does not entitle the payer to recover back the reward. Grady v. Crook, 2 Abb. N. C. 53. "Where a party is induced to pay money to his einployer to make up a deficiency in moneys in- trusted to him as clerk, although after advice of friends that he is liable to a criminal prosecution, the payment will not be deemed to have been made under duress. St. Louis, etc., H. R. Co. v. Thomas, 85 111.464:. Where money is advanced to a person which he is directed to em- ploy in a particular manner, if he neglects to do so, but appropriates the money to a different object or purpose, an action will lie against him for the recovery of the amount. MoNeilly v. Richardson, 4 Cow. 607. So upon the dissolution of a partnership, if one of the partners assigns all his interest in the property and assets to his copartners, and he also covenants not to collect such debts, etc., but he subsequently settles claims and debts so assigned, and gives receipts to the debtors, he will be liable to an action by his copartners, for the amount of the debts re- ceipted. Ross V. West, 2 Bosw. 360 ; Yol. 1, 551. It is a general rule that an action may be maintained to recover money which has been paid to public officers, if they have wrongfully and illegally exacted greater costs or fees than is allowed by law. Robinson v. Ezzell, 72 JST. 0. 231 ; Oraml Co. v. Sels, 5 Oregon, 243. In this State if a clerk of a court refuses to perform an official duty for which no fee is allowed by law ; or if any public officer refuses to perform a duty expressly imposed by law for which no fee or other compensation is expressly allowed ; or if an officer or other person charges or receives for any service a greater fee or compensation than the law allows for that service, or if he demands or receives the legal fees for any service not actually rendered, except where he may law- fully demand his fees in advance, he will be liable, in addition to the punishment allowed by law for the criminal offense, to an action in be- half of the person aggrieved, in which the plaintiff may recover treble damages. Code of Civil Procedure, §§ 3280, 3281 and 3282. At common law, if a sheriff does an act in the discharge of his official duties, and he claims and receives, as a matter of right, a larger sum thaa the 400 COMMON COUNTS. Money had and received, etc. law allows for the service rendered, an action will lie against him for the recovery of the excess, beyond the legal fees. Dew v. Parsons, 2 Barn. & Aid. 562. So where a sheriff levies upon property which he is not authorized to levy upon, and he then threatens to sell it under the execution, any sum which may be paid to him to prevent a sale may be recovered back, especially where the money is paid under protest. VaVpy v. Manley, 1 Man., Grang. & Scott, 594. So if a justice of the peace takes greater fees than are allowed by law, or if he takes money as fees for official services for which no fees are allowed by law, au action may be maintained against him by the party paying for the recovery of the amount improperly received. Morgan v. Palmer, 2 Barn. & Ores. 729 ; Code of Civil Procedure, § 3081. So if a revenue officer seizes goods as forfeited, when they are not liable to seizure, and he takes money from the owner as a condition of releasing them, such owner may recover back the money in an action for money had and received. Irving v. Wilson, 4 Term E. 485 ; Atlee V. Backhouse, 3 Mees. & Wels. 633, 645. Where an action is commenced in a court of record, and it is settled before judgment, the attorney for the plaintiff cannot take a larger sum as costs from the defendant than that allowed by law, without subject- ing himself to an action for its repayment to the defendant. BriUon V. Frinh, 3 How. 102 ; Moulton v. Bennett, 18 Wend. 586. Where a county clerk or the register of the city of New York exacts and re- ceives a fee which is not given by law, as a condition of permitting a person to examine the books of records, he vdll be liable to an action for the amount paid. Townsend v. Dyckman, 2 E. D. Smith, 224- And, where a person wrongfully intrudes into an office and receives the fees thereof, when the plaintiff holds, or is legally entitled to hold the office, he may recover the amount thus wrongfully received in an action against such person. Piatt v. Stout, 14 Abb. 178 ; LitUewood v. Will- iams, 6 Taunt. 277. Where money has been paid by the plaintiff, and received by the de- fendant without consideration and in such a manner as not to be a gift or voluntary payment, or, where the consideration onwliich the payinent was made has failed, the law will raise an imphed promise by the defend- ant to repay the money, and an action may be maintained by the plain- tiff for that purpose. And where a passenger paid money for a ticket which purported to entitle him to make a voyage on a specified ocean steamer to a distant port, and such steamer had been lost at the time the COMMON COUNTS. 401 Money had and received, etc. money was paid, but without the knowledge of either party, an action for the recovery back of the passage- money with interest was sustained. Briggs v. Vanderbilt, 19 Barb. 222 ; Bonesteel v. Yomderbilt, 21 id. 26. "Where chattels or personal property are contracted to be sold, and the contract of sale is to be completed by a bill of sale, or the actual deUv- ery of the property, and a part of the purchase-price is paid in advance and the chattel or property is afterward destroyed before the delivery, or before the execution of the bill of sale, the money paid may bare- covered back by the person paying it. Murray v. Richards, 1 "Wend. 58. So where the plaintiff deposited a certain sum of money with the defendant, and took a receipt from Mm which declared that this sum was to be indorsed upon a specified contract for the sale of certain real estate, by the defendant to a specified third party, whenever the plaintiff should present to defendant such contract, duly assigned to such plaint- iff ; it was held that the receipt did not transfer any interest in the land or in the contract, and that it did not show any agreement on the part of the plaintiff to procure such interest, and that he could, therefore, re- cover the deposit money after a demand and refusal to return it. Phelps V. Bostwick, 22 N. Y. 242. So, where money is paid by a purchaser on a contract for the sale of real estate, if the vendor is unable, or if he refuses to complete the sale, as he agreed, by a valid conveyance of the land, an action will lie against him by such purchaser, for the recovery of the purchase-money advanced with interest. Baldwin v. Munn, 2 "Wend. 399 ; Fletcher v. Button, 6 Barb. Q4:Q ; Walker v. Moore, 10 Barn. & Ores. 416; Peters t. McEeon, 4 Denio, 546. See, also, Bush v. Cole, 28 N". T. 261; Atkinson v. Scott, 36 Mich. 18; Taylor v. Beid, 19 Minn. 372. The same rule applies where money has been paid to a vendor of personal property, who is subsequently unable, or who refuses to deliver the property sold. Wilkinson v. Zloyd, 7 Ad. & EU. (E". S.) 27 ; Mur- ray V. Richards, 1 Wend. 58. If the entire purchase-price is paid for personal property, and but a portion of it is delivered and accepted as a part performance, and the balance is not delivered or tendered pursuant to the contract of sale, the vendor may recover that part of the pur- chase-price for which there is a failure of consideration by the omission to deliver the property. Devaux v. Conolly, 8 Man., Grang. & Scott, 64. If personal property is sold upon condition that the purchaser may return it within a specified time, which he does, he may recover the purchase-price if that was paid in advance. Hurst v. Orbell, 8 Ad. & Ell. 107. In the case just cited A. bought a span of horses of B. and paid £80 for them, with liberty to return them within a month by 51 402 'COMMON COUNTS. Money had and received, etc. allowing B. £10 out of the £80 ; and with a further stipulation that if he kept thein beyond the month lie should pay B. £10 above the £80 ; and it was held that A., on returning the horses within a month, might recover £70 in an action for money had and received. And see Street V. Blay, 2 B. & Ad. 456. Where money has been paid upon a contract which is subsequently rescinded by mutual consent, or where it is rescinded by the party pay- ing the money, by virtue of a stipulation in the original contract which permits him to do so, or when the acts or omissions of the other party justify and authorize him to rescind the contract, he may do so, and in either case he may recover back the n\oney paid, and generally with interest from the time of such rescission. See ante, 62-74. But where money is paid upon a special contract which cannot be legally rescinded by the party paying it, and the opposite party is able and willing to perform the agreement, no action will lie to recover the money so paid and advanced. Lanorence v. Simons, 4 Barb. 354. And if the contract has not been performed by the other party as he agreed, but such performance was prevented by the party paying the money, he cannot recover it back. lb. It is a general rule that money paid upon an illegal contract or in pursuance of its objects cannot be recovered back. The law will neither enforce the payment of money upon such a condition nor aid in its restoration when it has been paid. Nellis v. Cla/rk, 20 "Wend. 24 ; Perkins v. Savage, 15 id. 412. And where money was paid in pursuance of an agreement which was void by reason of its violation of the statute relating to maintenance and champerty, it was held that the sum paid could not be recovered back. Best v. Strong, 2 "Wend. 319 ; Buat v. Place, 6 Cow. 431. So if money is paid for the piir- pose of settling or compounding a supposed felony, and for the pur- pose of preventing a prosecution for it, the money so paid cannot be recovered back. Paimouth v. Bennett, 15 Barb. 541. If one indicted for larceny voluntarily repays the sum alleged to have been stolen without any unlawful agreement, he cannot recover it back, though he is afterward tried on the indictment and acquitted. Puckett V. Roquemore, 55 Ga. 235. And if the repayment is made upon an illegal agreement that the prosecution shall be settled or discontinued, the bargain is corrupt, and for that reason the money cannot be recovered back. lb.; Gomstoch v. Twpper, 50 Vt. 596. And see Bothwell v. Brown, 51 111. 234 ; Robertson v. Marsh, 42 Tex. 149 ; Haynes v. RvM, 83 N. T. 251. Where a defendant received money from one of the parties to an COMMON COUNTS. 403 Money had and received, etc. illegal contract, which was paid in execution and satisfaction thereof, and the defendant promised to pay the amount over to the other party, and he did not know of such illegality in tlie contract at the time of making the promise and receiving the money, nor did he participate in any manner in making such contract, it was held that he was bound to pay over such money as he promised, and that the illegality of the contract was no defense to an action for its recovery. Merritt V. MiUard, 5 Bosw. 645 ; Murray v. VanderUlt, 39 Barb. 141; Ten- ant V. Elliott, 1 Bos. & Pul. 3. Money which could not be recovered back if it had been paid to the party directly cannot be recovered back if it has been paid to an agent for him. Nillo v. Binsse, 3 Abb. Ct. App. 375 ; S. 0., 1 Keyes, 4T6 ; Murray v. Vanderhilt, 39 Barb. 140. An agent, having received money for the use of his principal, is bound to pay it over to him, and has no right to return it to the person from whom he received it. HanooGk v. GomeB, 58 Barb. 490 ; S. 0. affirmed, 50 N. Y. 668. "All wagers, bets or stakes, made to depend upon any race, or upon any gaming by lot or chance, or upon any lot, chance, casualty, or unknown or contingent event whatever, shall be unlawful. All contracts for or on account of any money or property, or thing in action so wagered, bet or staked, shall be void." 2 R. S. 924, § 8, 5th ed. "Any person who shall pay, deliver or deposit any money, property, or thing in action, upon the event of any wager or bet herein prohibited, may sue for and recover the same of the winner or person to whom the same shall be paid or delivered, and of the stakeholder or other person in whose hands shall be deposited any such wager, bet or stake, or any part thereof, whether the same shall have been paid over by such stakeholder or not, and whether any such wager be lost or not." 2 R. S. 924, § 9, 5th ed. See Langworthy v. Bromley, 29 How. 92 ; Arrieta v. Morrissey, 1 Abb. (N. S.) 439 ; Roediger v. Simmons, 14 id. 256. Where money is lost upon the result of a horse-race, and after the result of the race is known, the depositor orders the stakeholder to pay over the money bet to the winner, this will not prevent the losing party from recovering the money from the stakeholder, even though the money was paid over to the winner immediately after the wager was determined, and after such direction to pay it. BucTcman v. Pitoher, 1 N. Y. 392. In such a case there is no question of fact for a jury, and it is error to submit to a jury the question, whether the pay- ment was in pursuance of the bet, or whether it was a gift or voluntary payment. Storey v. Brennan, 15 N. Y. 524. 404 COMMON COUNTS. ^ > Money had and received, etc. The right to recover money lost by betting or gaming is a right rest- ing in contract, and the demand may be set up as a counter-claim. Mo- Dougall v. Wallmg, 48 Barb. 364. Under the statutes of this State the right of action for money lost by betting or gaming is assignable, and the assignee may sue and re- cover in his own name. Meech v. 8toner, 19 N. Y. 26 ; Hendrickson V. Beers, 6 Bosw. 639. These cases overrule Weybwrn v. White, 22 Barb. 82. The loser's assignment of his claim may be very general, and it will be sufficient if it assigns all his interest in a certain claim against the winner, and specifies the amount ; and this is especially the case when the loser has no other claim against the winner. Hendrichson v. Beers, 6 Bosw. 639. Where money is lent with a full knowledge by the lender that it is to be used for betting or gaming purposes, he cannot recover the amount of the borrower. Peck v. JBriggs, 3 Denio, 107; Ruokman v. Bryam, id. 340. But where the borrower deposits the money with the lender as a stakeholder, and he loses the bet, and the stakeholder pays over the monej' to the winner, on his agreeing to return the money, in case the borrower does not repay it, this agreement is valid and may be en- forced, lb. And where the winner agreed with the stakeholder, that if he would sue the loser for the money, and the action should fail, he would repay the money, and also pay the costs of the action, this was held to be a valid agreement. lb. Where a person deposits his own money and also that of other per- sons upon an illegal wager, he can maintain no action for any thing more than his share of the money. Ruckmom v. Pitcher, 20 N. T. 9 ; S. C, 13 Barb. 556. Where the money deposited with a stakeholder was bank bills, and there was no evidence that he had parted with them, and the bank issuing such bills had failed before a demand was made for a return of the money, it was held that the stakeholder was merely liable for the value of the bills at the time of bringing the action. Fowler v. Yan Surdam, 1 Denio, 557. Under the Eevised Statutes, the losing party in an illegal bet or wager may recover from the stakeholder the sum deposited by him, although the stakeholder, by his direction given immediately after the wager is determined, has paid the money over to the winner. Mahony V. (?' Gallaghan, 6 Jones & Sp. 461. In a proper case the owner of personal property lost on a bet may replevy it from a third person who COMMON COUNTS. 405 Money had and received, etc. purchased it in good faith, for value, without notice from the winner. Hodge v. Sexton, 1 Hun, 576. According to the English common law, one tenant in common can- not maintain an action at law for money had and received against his co-tenant, who has received more than his share of the profits ; the only remedy being by an action of account in a court of equity. ThoTfias V. Thomas, 5 Exch. 28 ; McMwrray v. Romson, 3 Hill, 59. But it has long been settled in this State, that on a sale of real estate, owned by two persons as tenants in common, if all the money is received by one, the other can maintain an action for his moiety against the other, in an action for money had and received. Coles V. Goles, 15 Johns. 159. So where damages have been assessed for injuries done to lands, owned by tenants in common, if one of them receives the entire sum, the other may sue for his share in an action for money had and received. BrinJcerhoof v. Wefnjple, 1 Wend. 470. The Code provides that " A joint tenant or a tenant in common of real property, or his executor or administrator, may maintain an action to recover his just proportion against his co-tenant, who has received more than his own just proportion, or against his executor or administrator." Code of Civil Proc, § 1666. And see 3 E. S. 39, § 9, 5th ed. ; WooUver v. Knapp, 18 Barb. 265 ; Henderson v. Eason, 17 Ad. & Ell. (N. S.) 701 ; WUcox V. Wilcox, 48 Barb. 327 ; Joselyn v. Joselyn, 9 Hun, 388; Itoseboom v. Roseboom, 15 id. 309. K an agent has received a sum of money from his principal for a specific purpose, and it can be shown that the purpose has been satis- fied, and that it has absorbed a certain siim only, leaving a balance, the law implies a promise from such agent to pay over the amount of such balance to his employer, from whom he received it. But as long as the commission is open and in the course of execution, there is no implied promise to pay back any of the money, and no action can be main- tained for its recovery. Case v. Roberts, Holt's N. P. 500 ; Weston v. Downes, 1 Doug. 24. Whenever an agent has received money from a third party for the use of his principal, the law will imply a promise from such agent to pay over the amount to the principal when requested so to do. Mayor, etc., of Auburn v. Draper, 23 Barb. 425. It is the ofiicial duty of a sheriff or constable to pay over money which he has collected on an execution ; and if he omits to do so, this action will lie against him. Shepard v. Hoit, 7 Hill, 198 ; Armslnfong V. Garrow, 6 Cow. 465.' And see Lillie v. Hoyt, 5 Hill, 395. Where a sheriff receives money upon an execution, and then applies 406 C0]!OI0N COUNTS. Money had and received, etc. it to his own use, an action will lie against him for money had and received. Dumond's Adm\s v. Carpenter, 3 Johns. 183. If an agent appropriates the money of his principal to the payment of a debt of a third person, without any authority for so doing, and the person who receives the money knows, at the time of its reception, that the agent has no such authority, an action may be maintained against such third person, by the principal, for money had and received. Amidon v. Wheeler, 3 Hill, 137. If an agent refuses to account for goods delivered to him for sale, it will be presumed, after a reasonable time, that he has sold them, and received the proceeds in money. Hunter v. Welch, 1 Stark. N". P. 224. And see BrinJc v. Dolsen, 8 Barb. 337. The mere circumstance that money has been paid by a principal to his agent, with directions to pay it to a third person, imposes no lia- bility upon the agent to such third person, unless there is an express or an implied assent on the part of the agent to pay the money accord- ing to the directions he has received. The mere receipt of the money by the agent is n.o evidence of an implied promise, to apply it to the purposes for which it was professedly remitted or delivered to him. He holds the money to the use of the person who remitted or delivered it to him, the privity of contract is between him and his principal, and not between the agent and such third party, unless the agent expressly agrees and promises such third person to pay the money to him. Bigelow v. Davis, 16 Barb. 561. And unless such agent expressly promises to pay the money over to such third person, no action will lie by him against the agent for its recovery. lb. And see Colvin v. Holirooh, 2 N. Y. 126 ; Oostigan v. Newland, 12 Barb. 456. If a debtor places money in the hands of a person for the pur- pose of being applied to the payment of debts owing by such debtor, without setting apart the money in distinct amounts, for his several creditors, so that he has no further control over it, one of the cred- itors cannot maintain an action against the party so holding the money, for money had and received to the use of such creditor. Maxwell v. Longenecker, 82 111. 308. There are some cases in which a demand must be made by the plaint- iff before he can maintain his action, while in other cases no demand is necessary before suit broiTght. To determine whether a demand is necessary in a given case is a question of much practical importancie to a plaintiff. The general rule in relation to trustees and to persons in the situa- COMMOlSr COUNTS. 407 Use and occupation. tioa of trustees is, that a demand must be made upon them for the money in their hands before an action can be maintained against tliem, unless it can be shown that they have been guilty of an abuse of the trust. Walrath v. Thompson, 6 Hill, 541. Where a debtor turns out or transfers a note which he holds against a third person, to his creditor as a collateral security, and the creditor collects such note, which produces a sum larger than his demand, he is not liable to an action for such balance by the debtor or his assignee until after a demand of the balance. Sears v. Patrick, 23 Wend. 528. So where goods are sent to a factor or agent to be sold at auction, no action will lie against him without a previous demand of the pro- ceeds, or without instructions to remit. Gooley v. Belts, 24 Wend. 203 ; BrinTc v. Bolsen, 8 Barb. 337. A bailee or mere depositary of money is not liable to an action for the money left in his hands until a demand and refusal to pay it over. Phel-ps V. Bostwick, 22 Barb. 314. Where money is received by a person whose duty it is to remit it, no demand is necessary before an action is brought against him by the person who is entitled to the money. Stacy v. Graham, 4 Kern. 492 ; S. C, 3 Duer, 444 ; Hickok v. Ilickok, 13 Barb. 632 ; LilUe v. Eoyt, 5 Hill, 395. Money deposited with a stakeholder upon an illegal bet or wager may be recovered from such stakeholder without any previous demand, even if the money has been paid over to the winner by the express direction of the loser, after the bet is determined. Ruckman V. Pitcher, 1 JST. Y. 392. Where a purchaser of goods seeks to rescind a sale of goods for the fraud of the vendor, and to recover back the purchase-price, he must restore or offer to restore the goods, and demand a return of the money, before an action can be maintained. Voorhees v. Earl, 2 Hill, 288 ; Moyer v. Shoemaker, 5 Barb. 319. § 9. Use aud occupation. The statute provides for the recovery of rent for the use and occupation of premises in certain cases. " Any landlord may recover, in an action on the case, a reasonable satisfaction for the use and occupation of any lands or tenements by any person, under any agreement not made by deed ; and if any parol demise or other agreement, not being by deed, by which a certain rent is re- served, shall appear in evidence on the trial of any such action, the plaintiff shall not, on that account, be barred from recovery, but may make use thereof as evidence of the amount of damages to be recov- ered." 3 K. S. 37, § 20, 5th ed. At common law, no action of assumpsit for rent would lie, except 408 COMMON COUNTS. Use and occupation. upon an express promise, made at the time of the demise. Johnson v. May, 3 Lev. 150 ; Biniih v. Stewart, 6 Johns. 46, 48. The action for use and occupation is founded upon the principle that the relation of landlord and tenant exists by virtue of some agree- ment, either express or implied. And in those cases in which no such relation exists, this form of action will not lie. Croswell v. Crams, 7 Barb. 192 ; Edmonson v. Kite, 43 Mo. 176 ; Espy v. Fenton, 5 Ore- gon, 423 ; Marquette, etc., R. E. Co. v. Harlow, 37 Mich. 554 ; Moore V. Harvey, 50 Yt. 297 ; Nance v. Alexander, 49 Ind. 516 ; Kisrsted V. Oramge and Alexandria E. E. Co., 69 N. Y. 343, 347 ; S. 0., 25 Am. Kep. 199; 55 How. 51. Where the occupant of premises went into possession of the premises wrongfully, and the owner of the land sued such occupant for a wrong- ful possession, and disclaimed any relation as landlord and tenant, it was held that this form of action could not be maintained. Hurd v. Miller, 2 Hilt. 540. It has been held that this action cannot be maintained against one who has entered into possession of real estate, under a verbal agree- ment for the purchase of it, even when he himself refused to complete the purchase, while the other party was willing to perform the contract. Smith V. Stewa/rt, 6 Johns. 46. See Thompson v. Bower, 60 Barb. 463. So where the defendant went into the possession of a farm, under a written contract for its purchase, and the vendor failed to perform the contract on his part, when the purchaser left the premises, it was held that the action for use and occupation did not He. Sylvester v. Ealston, 31 Barb. 286. In such cases the occupant of the land does not enter into possession of the land as tenant but as purchaser, and therefore the relation of landlord and tenant does not exist. A defendant entered into the possession of a farm under a verbal conditional contract of purchase, by which he was to have the- farm for $2,000, with a proviso, however, that the plaintiff was to have the benefit of any enhanced price for which the farm could be sold at any time within two years thereafter, and if so sold, the defendant was to pay the interest of $2,000 for the use of the farm each year. The defendant went into possession under this agreement, but no deed was given to him. He occupied the farm for more than a year, when the farm was sold, with his assent, to one Mitchell for $2,500 ; and in an action by the plaintiff for the use and occupation of the farm, it was held that he was entitled to recover at the rate of $140 a year, from COMMON COUNTS. 409 Use and occupation. the time the defendant took possession, until the sale to Mitchell. Pierce v. Pierce, 25 Barb. 243. There mnst be some form of demise of the premises shown, or some permission to occupy them, either express or implied, or trespass will be the proper form of action. Featherstonhaugh v. Bradshaw, 1 "Wend. 135 ; Bancroft v. Wa/rdwell, 13 Johns. 489. The agreement or permission may be implied, and it will be equally as valid as an express one ; and where a tenant goes into possession of premises for one year, under a verbal agreement at an agreed rent, and he remains in possession for that year, and then continues in possession for three years longer without any f m'ther agreement, this action will lie for the recovery of the three years' rent. Osgood v. Dewey, 13 Johns. 240. But under a lease void by the statute of frauds the tenant cannot be compelled to pay for a longer period than he actually occupies. Thomas V. Nelson, 69 N. T. 118. Where a lease is under seal, no action for use and occupation can be maintained against the lessee or his assignees. The action must be upon the demise to recover the rent reserved. West V. CarUedge, 5 Hill, 488 ; Kiersted v. Orange and Alexandria P. P. Co., 69 N. T. 343, 346 ; S. C, 55 How. 51 ; 25 Am. Kep. 199. But where the lease is under seal, and the tenant holds over after the expiration of his term, he will be liable to an action for the use and occupation of the premises for the time he may remain in possession thereof, after the termination of such sealed lease. Aheel v. Padolif, 13 Johns. 297. Where a tenant never goes into possession under his lease, either in person, by agent or under-tenant, an action for use and occupation can- not be maintained, and the landlord must seek his remedy upon the lease. Wood v. Wilcox, 1 Denio, 37. But if the tenant goes into possession under his lease, and then ceases to actually occupy the premises, but keeps the keys, he will be liable in an action for use and occupa- tion if he had the power to actually occupy and enjoy the premises for the full term for which the recovery is sought. Hall v. Western Transportation Co., 34 N. T. 284. But if, after the tenant has entered upon the premises and abandoned the possession before the expiration of his term, the landlord gives notice that he shall lease the premises for the unexpired term and hold the original tenant liable for any deficiency in the rent, the latter will not be liable in an action for use and occupation for the time the premises were occupied by the new tenant put in by the landlord pursuant to the notice. Beach v. Gra/)/, 2 Denio, 84. A lessor cannot recover rent upon a complaint for use and occupation, 52 410 COMMON COUNTS. Use and occupation. where it appears from the evidence that there is an outstanding lease of the premises to third parties, and that the defendants are in possession as assignees of the term. Bedford v. Terhune, 30 N. Y. 453 ; affirming S. C, 1 Daly, 371. But in such a case the court may, on the trial, allow amendment of the complaint so as to permit a recovery for the rent due on the lease by charging the defendants as assignees thereof, when it does not appear that the amendment will be a surprise upon the de- fendants, lb. Where the owner of the premises induces his previous tenant to re- main in possession thereof under a promise of executing to him a written lease of the premises for a term of years, and he subsequently and in bad faith refuses to execute the lease, and within a year thereafter re- sumes possession of the premises and repudiates the relation of landlord and tenant, he will be bound by his own acts and his election, and will not be permitted to recover, as for use and occupation, upon an implied agreement to pay rent during such possession by the tenant. Oreton V. Smith, 33 KT. 245 ; affirming S. C, 1 Daly, 380. Nor will this form of action lie where a tenant has occupied premises for a year under a lease, and then holds over against the will of the landlord, who institutes summary proceedings to turn him out of posses- sion, and obtain an order for that purpose, notwithstanding which order the tenant retains the possession of the premises for two years there- after, against the will of the plaintiff. Featherstonhaugh v. Bradshaw, 1 Wend. 134. But when a landlord turns a tenant out of possession by summary proceedings, for the non-payment of rent, he may recover in use and occupation for the rent which was due prior to such ejection of the tenant. See MoKeon, v. Whitney, 3 Denio, 452 ; Hinsdale v. White, 6 Hill, 507. Johnson v. Oppenheim, 55 N. T. 280. If there is a written lease, not under seal, which specifies the amount of rent to be paid, the landlord, in an action for use and occupation, may introduce the lease for the purpose of determining the amount of the recovery, although he has not declared upon such lease, but claims to recover generally for such use and occupation. Williams v. Sherman, 7 Wend. 109. And the defendant cannot be permitted to give evidence of the actual value of the premises, for the purpose of reducing the recovery below the sum specified in the lease. lb. And, since the enact- ment of the Code, it has been held that a sealed lease may be in- troduced for a like purpose, in an action for use and occupation, and that it is equally conclusive. Ten Eyck v. Houghtaling, 12 How. 523 ; Brisbane v. Cole, Buffalo Superior Court, 1857, cited 2 Clint. Dig. 2022. These cases hold that since the Code an action for use and oc- COMMON COUNTS. 411 Account stated, or balance struck, etc. cupation may be maintained, when the lease is under seal, in the same manner that it may be done when the lease is not under seal, and that the lease is competent evidence of the relation of landlord and tenant, and of the amount of rent to be paid. But see ante, 407. Where there is no express agreement between a landlord and his tenant, as to the amount of rent which is to be paid for the use of the premises, the tenant will be required to pay what they are reasonably worth, upon an implied promise which the law will recognize and enforce. Sorantom v. Booth, 29 Barb. 171. If a tenant occupies rooms, which he hires from month to month, under an agreement to pay the rent of each month in advance, and he leaves the premises in the latter part of a month, he will not be liable for the rent of a subse- quent month which is not due. Fash v. Kavanah, 24 How. 347. Where the premises are let for the purposes of prostitution, or where the rent accrues after the landlord has notice that the premises are used for such purposes, and he has the power to turn the tenant out of possession, he cannot recover for the rent which accrues after such notice, and the power to turn the tenant out. Jennings y. Throgmorton, liyan & Moody, 251 ; Girardy v. Richardson, 1 Esp. 13. § 10. Account stated, or balance struck, etc. The settlement of an account between the parties, by which a balance is struck in favor of one of them, is called an account stated. It is not necessary that the account should be signed by the parties in order to render it a stated account ; for it will be sufBcient that it has been examined and accepted by both of them. Lockwood v. Thorrie, 11 N. T. 170, 173. " In stating an account two things are necessary : 1st. That there be a mutual examination of the claims of each other by the parties ; and, 2d. That there be a mutual agreement between them as to the correct- ness of the allowance and disallowance of the respective claims, and of the balance, as it is struck upon the final adjustment of the whole ac- count and demands on both sides. The minds of the parties must meet upon the allowance of each item or claim allowed, and upon the disallowance of each item or claim rejected. They must mutually con- cur upon the final adjustment, and nothing short of this will fix and adjust their respective demands as an account stated. But, in proving an account stated, it is not necessary to show an express examination of the respective demands or claims of the parties, or an express agree- ment to the final adjustment. All this may be implied from circum- stances. If the account be rendered by one party, and the other party, upon examining it, makes no objection, an inference might legitimately be drawn that he was satisfied with it as rendered. So, also, if the^ 412 COMMON COUNTS. Account stated, or balance struck, etc. account should be made out by one party and transmitted to the other party by mail, and the latter should omit to communicate objections to the party rendering the account, within a reasonable time, an inference might be drawn that he was satisfied with it. Such omission to object would, therefore, be legitimate evidence in proving an account stated. There is no arbitrary rule of law which renders an omission to object in a given time equivalent to an actual agreement or consent to the correctness of the account thus rendered ; but it is merely competent evidence, subject to be rebutted by circumstances from which counter inferences may be drawu. Thus, if it should appear that the party to whom the account was rendered was absent from home, that would, of itself, account for the omission, and no inference could be drawn that he was satisfied with the account. So, other circumstances might be shown which would satisfactorily account for the omission to object in a given time. If one party receiving such account lived at a dis- tance from the other party, and was expecting to see him within a few days, that might satisfactorily account for omitting to transmit imme- diately his objections by mail. Again, the expected meeting of the parties might be prevented or delayed by some unforeseen casualty, which might extend from a few days to as many weeks, or months ; and thus, what, in the absence of knowledge of all the circumstances, might appear a very extraordinary and unreasonable delay, with such knowledge, would be satisfactorily accounted for." " So the natural inference to be drawn from an omission to make objection might be rebutted by proof of the course of dealing between the parties, or .of some understanding between them that no technical defaults should be insisted upon. In fine, as the omission to object to the account rendered raises merely an inference that the party is satis- fied with it, and that he means to have his silence understood as an ex- pression of his concurrence therewith, any circumstances calculated to re- but such inferences, or to raise counter inferences, are clearly compe- tent evidence to be submitted to the court or a jury, in order that, with a knowledge of all the circumstances of the case, they may form their conclusion of the actual intention of the parties. And, as the minds of both parties are supposed to meet and concur, it must necessarily be competent to show how the party rendering the account understood the transaction. If the evidence should show clearly that he did not un- derstand that there had been any final adjustment of their respective demands between them, it would be strange, indeed, if the courts should disregard the understanding of the parties themselves, and de- cree an adjustment between them contrary to their own understanding COMMON COUNTS. 413' Account stated, or balance struck, etc. in the matter." Lookwood v. Thorne, 18 N. Y. 288, 289, 290, Peatt, J. See Towsley v. Denison, 45 Barb. 490 ; Qumoey v. White, 63 N. Y. 370 ; Ouernsey v. Eexford, id. 631 ; Stenton v. Jerome, 54 id. 480 ; Chavvpion v. Joslyn, 44 id. 653 ; Wiley v. Brigham, 16 Hun, 106. Where, upon the presentation of an account, the person to whom it is presented, for some independent reason, disclaims all liability, he is not bound to examine the items, or be taken to have assented to them if he does not object. In such case the failure to object is not even prima facie proof of the correctness of the account. Quincey v. White,' Q3 IST. Y. 370. "An account stated or settled is a mere admission that the account is correct. It is not an estoppel. The account is still open to impeach- ment for mistakes or errors. Its effect is to establish, prima facie, the accuracy of the items, without other proof ; and the party seeking to impeach it is bound to show affirmatively the mistake or error alleged. The force of the admission, and the strength of the evidence which will be necessary to overcome it, will depend upon the circumstances of the case. An account stated, which is shown to have been exam- ined by both parties, and expressly assented to or signed by them, would afford stronger evidence of the correctness of its items, than if it merely appeared that it had been delivered to the party, or sent by mail, and acquiesced in for a sufficient length of time to entitle it to be consid- ered as an account stated. So, too, an account settled, that is, when the balance has been paid or adjusted between the parties, is stronger evidence, and requires more proof to overcome it than a mere account stated. But the parties are never precluded from giving evidence to impeach the account, unless the case is brought within the principles of an estoppel in pais, or of an obligatory agreement between the parties ; as for instance, where, upon a settlement, mutual compromises are made." LooTcwood v. Thorne, 18 K Y. 288, 291, 292, Selden, J. So far as Lockwood v. Thorne, 11 N.Y. 170, or S. C, 24 Barb. 391, is opposed to the foregoing views, it is overruled. An account stated or settled, is in the nature of an agreement that the articles charged are correct ; and, therefore, no account can be le- gally stated by persons who are not competent to made a valid contract. Holmes v. U'Qamp, 1 Johns. 34. For this reason an infant is not bound by an account stated, even though he expressly agrees to it. Truema/n v. Hurst, 1 Term E. 40. A plaintiff may recover on an ac- count stated with the defendant, although it includes a debt due from the defendant individually, and also one due from him and a deceased partner. Richards v. Heather, 1 Bam. & Aid. 29. It is sufficient, 414 COMMON COUNTS. Account stated, or balance struck, etc. although the account be stated of that which is due to the plaintiff only without making any deduction for any counter-claim or set-off" for the defendant. Styart y. Rowland, 1 Show. 215. And it is not essential that there should be cross-demands between the parties, nor that the de- fendant's acknowledgment that a certain sum was due from him to the plaintiff should relate to more than a single date or transaction. High- more V. Primrose, 5 Maule & Selw. 65. An admission by a defend- ant, that a certain specified sum was agreed to be paid to the plaintiff for the sale of standing trees, if made after the trees had been felled and taken away by the defendant, will support an action upon an ac- count stated, though not for goods sold and delirered. Knowles v. Michel, 13 East, 249. An I. O. U. is sufficient ^H?72 a yacie evidence in an action for money lent, or of an account stated with him, though it is not addressed, and no proof is given that U. means the plaintiff, except the fact that he produces the instrument as evidence of his right. Douglas v. Holme, 12 Ad. & Ell. 641 ; Curtis v. liickards, 1 Man. & Grang. 46. But although an I. O. U. is j)rima /aoie evidence of a debt due, this is not the rule where it is shown that there is no debt. In order to support an account stated, there must be an admission of a debt due ; and, therefore, where it appeared that the defendant had verbally agreed to purchase of the plaintiff the lease and good-will of his premises, and on being asked for a deposit, gave an I. O. IT. for £25, bat afterward refused to complete the purchase, it was held that the I. O. TJ. was no evidence of an account stated. Lemere V. Elliott, 6 Hurlst. & Norm. 656. In the last case the court said : "An I. 0. IT. professes to be the result of an account stated in respect of a debt due y and it is important not to make a fiction supply the place of truth, and say that an account has been stated in respect of a debt, when, in reality, there was none." It is well settled in this State that proof of the giving of a promissory note by one person to another, nothing else appearing, is prima fade evidence of an accounting and settlement of all demands between the parties, and that the maker at the date of the note was indebted to the payee upon such settlement to the amount of the note. Lake v. Tysen, 6 N. Y. 461; Butcher v. Porter, 63 Barb. 15 ; Pe Freest v. Blooming- dale, 5 Denio, 304 ; Sherman v. Mclntyre, 1 Hun, 592. But this is a mere presumption which may be repealed by proof of the consideration of the note, and of occasion and circumstances attending its execu- tion, lb. Where an account had been rendered by the plaintiff to the defend- COMMON COUNTS. 415 Account stated, or balance struck, etc. ant, who objected to one item of the account but said nothing as to tlie others, this was held sufficient evidence on an account stated, as to the items not objected to. Chisman v. Count, 2 Man. & Grang. 307. A qualiiied or conditional acknowledgment that a certain sum is due to the plaintiff will not entitle him to recover upon an account stated. Evoms V. Verity, Eyan & Moody, 239. And a defendant's admission that something is due to the plaintiff, without specifying how much, does not entitle him to a verdict for even nominal damages, on an account stated. Kirton v. Wood, 1 Mood. & Eob. 253 ; Lane v. Rill, 18 Ad. & Ell. (N. S.) 252. In such an action the plaintiff cannot recover unless he shows that an account was stated for some particular amount ; a mere general acknowledgment of a debt, without specifying its amount, is not sufficient to entitle the creditor to recover nominal damages. lb.; Bernasconi v. Anderson, 1 Mood. & Malk. 183. And see TucJcer v. Barrow, 1 Barn. & Ores. 623 ; Green v. Bavies, 4 id. 235. But a stipulation upon the settlement of accounts, that the settlement is " subject to the correction of errors and omis- sions which may hereafter be found therein," does not render it any the less a settled account, subject to all the rules applicable to stated accounts. Young v. Hill, 67 N. Y. 162 ; S. C, 23 Am. Eep. 99. A claim which is absolutely void by reason of an illegality or im- morality in the consideration cannot be relied on in support of a count upon an account stated. Kennedy v. Brown, 13 J. Scott (N. S.), 677. And where an action is founded upon an account stated if any one of several claims of undefined amount included in it is to be omitted, the action cannot be maintained because the statement of the account is disproved, and the action founded upon such statement of account fails. lb. A landlord demanded £40 from an incoming tenant, upon his agree- ment to pay for the crops growing upon the ground ; the tenant offered to pay £17, and this was held to be no evidence to support a count upon an account stated. Wayman v. Hilliard, 7 Bing. 101. A verbal agreement was made for the purchase of some turnips grow- ing in the plaintiff's field ; after the purchaser had removed the prin- cipal part of them, the seller said to him : " You owe me £3 ;" to which the purchaser answered, "I will send it before I draw any more turnips." He afterward drew away all the turnips, but did not send the money, which was held to be recoverable upon an account stated. Pinchon v. ChilGott,Z Oarr. & Payne, 236 ; Knowles v. Michel, 13 East, 249. It is not necessary to prove the items of which the account consists ; it is sufficient to prove some existing antecedent debt or demand be- 416 COMMON COUNTS. Account stated, or balance struck, etc. tween the parties respecting which an account was stated, and a balance was struck and agreed upon. Bartlett v. Emery, 1 Term R. 42, note ; Ogden v. Astor, 4 Sandf. 312, 332. Where a defendant rehes upon an account stated, and he fails to prove that it was mutually adjusted, and the balance ascertained, he may still fall back upon the account and show that there is in fact a claim or balance due him, unless his pleading is so framed as to show that he relied exclusively upon the account stated. Qomgs v. Patten, 1 Daly, 168 ; S. C, 17 Abb. 339. An account stated may be impeached for fraud or mistake. Welsh V. German American Bank, 73 N. T. 424. But the practice of open- ing accounts which have been adjusted by the parties themselves is not to be encouraged ; and should never be permitted upon an allegation of error, and supported by doubtful or even probable testimony only where no fraud has been practiced by one party on the other. Wilde ■^ .Jenkins, 4 Paige, 481; Gilchrist n. Brooklyn Grocers' Manufactur- ing Association, 66 Barb. 390. To justify the opening of an account stated there must be evidence of fraud or mistake. A mere allegation of error is not suificient. lb. And where the parties have acquiesced in a settlement for many years, the evidence of fraud or mistake must be clear and decisive to authorize the court to set it aside. Augsbury V. Flower, 68 N. T. 619. The party seeking to impeach an account stated must set forth the specific grounds of error or mistake upon which he relies and sustain his pleadings by proof on the trial. Barker v. Hoff, 52 How. 382 ; Young v. Hill, 67 N. Y. 162, 176 ; S. C. , 23 Am. Eep. 99 ; Story's Eq. Jur., §§ 523, 527. Where an account has been rendered and acquiesced in for any considerable length of time, the burden of showing fraud, mistake or error rests upon the party seeking to open it for re-examina- tion. Towsley v. Denison, 46 Barb. 490. Where an account is rendered, and it contains a usurious item, which the party receiving the account permits to become an account stated, and he then assigns to a third person his demands against the party rendering the account, the latter, as assignee, will take the demands subject to the right of the other party to insist upon the account ren- dered as a stated account. Bvllard v. Baynor, 30 N. T. 197. If one party seeks to open an account stated, the account is open to any objec- tions on the part of his opponent. Young v. Hill, 67 N. Y. 162; S. C, 23 Am. Eep. 99. If the defendant can show any mistake, fraud or error, or that any item is improperly in the account leading to a re- sult and a balance which courts of equity regard as iniquitous and COMMOJSr COUNTS. 417 Account stated, or balance struck, etc. oppressive, he may insist upon his equitable rights in the action brought against him, and have the account adjusted upon an equitable and just basis. lb. 53 PART III. THE LAW RELATING TO TORTS OR WRONGS. CHAPTER I. ACTIONS FOR TOETS OE WEOJSTGS. Section 1. General principles relating to torts. The law in relation to contracts, express or implied, having been discussed as fully as is con- sistent with the plan of this work, it now remains a part of the task to explain some of the principles of law which relate to torts or wrongs. A tort may be described, generally, as a wrong independent of contract. But see Rich v. New Yorh Central db R. E. B. B. Co., 87 IST. Y. 390. It involves the idea, if not some infraction of law, at all events of some infringement or withholding of a legal right, or some violation of a legal duty. Actions for torts will lie in several different classes of cases, such, for instance, as for an injury to the person or personal rights ; for the wrongful taking or conversion of personal property ; for an injury to personal or real property, and the like cases. The right of action for a tort is generally founded, either upon an invasion of some legal right of person or property, or on the violation of some duty toward the public which has resulted in some damage to the plaintiff, or in the infraction of some private duty or obligation which has been productive of damage to the complaining party. The. im- portance of having a correct perception of the nature of a right of ac- tion founded upon a tort or wrong independent of contract, will justify a brief examination of each of the three classes just specified. The first class of cases relates to those instances in which complaint is made of the invasion of some legal right which is actually in the possession of the plaintiff, and to the enjoyment of which he is exclu- sively entitled, as where a wrong is done to the person or to the repu- tation, where goods are tortiously converted, or a direct injury is done to property. In such cases, a plaintiff, to entitle himself to the recov- ery of damages, may be called upon to prove two things ; first, the ex- istence of the right alleged ; and secondly, that it has been violated by the defendant. , The existence of the right alleged or claimed will always have to be ACTIONS FOE TOKTS OE WEONGS. 419 General principles relating to torts. established by a reference to legal principles. Sometimes this right admits of an easy proof, as in an action for a trespass in taking away goods, where the plaintiff would have a prima fade case sufficient to entitle him to recover, upon merely proving his own previous posses- sion of tlie goods, and that they were subsequently tortiousl}' taken out of it by the defendant ; and the reason of this is, that a bare possession of goods gives a right of action kgainst a wrong-doer, for his invasion of the plaintiff's right of possession or property. In other cases the proof may not be so simple, for the facts to be established may have to be deduced from a mass of details more or less complicated, and from facts and circumstances which may be direct or very remote in their bearing upon the qiiestions ; and further, the existence of the right, as a matter of law, after the facts are established, may have to be proved by an appeal to elementary principles and deductions ingeniously drawn from them by a discussion of general doctrines of public policy, or by embarrassing inquiries touching the intention of the legislature. In the second class of cases, an action of tort may be founded upon the violation of some public duty and the consequent damages to the plaintiff. To maintain an action in this class of cases, the plaintiff must prove three different matters, that is to say: the existence of the al- leged duty, its breach, and the resulting damage. The existence of the duty must be shown, either by bringing the facts of the case within some settled doctrine of the common law, or within the letter or spirit of some act of the legislature. Whenever a duty has to be performed toward the public by an individual, and another is specially injured in consequence of the non-observance or non-discharge of such duty, or through misfeasance or malfeasance in its discharge, an action will lie at the suit of the latter against the former. The breach of a public duty which causes damages to an individual combines in reality two tortious ingredients which are, according to the circumstances, more or ]ess clearly distinguishable from each other; one is the wrong done to the public, the other the wrong done to the individual complaining. That which is, in strictness, correlative to a public duty is a right en- forceable at the suit of the public. The general rule is well settled that individuals cannot enforce a public right, or redress a public injury, by suits in their own names. Where they suffer wrong, or sustain damages in common with other members of the community, no personal right of action thence accrues. The private grievance is merged in that of the public, and the remedy, if any exists, will be by public prosecution in order that the rights of the public may thus be vindicated. Even where one person sustains an injury in common with the public, and 420 ACTIONS FOR TORTS OR "WRONGS. General principles relating to torts. from circumstances in which he happens to be placed, suffers more fre- quently or more severely than others, he will not on that account have, as of course, a sepai-ate right of action. It is only when he suffers some special damage, differing in kind from that which is common to others, that a personal remedy accrues to him. It may be repeated, that in every case belonging to the class now under consideration, it will be found as an ingredient of the right of action, that the defend- ant is chargeable with some nonfeasance, misfeasance or malfeasance of public duty, constituting an offense, whether indictable or not, against the public, and also an injury productive of special damage to an indi- vidual. Where, then, a private action is brought for the recovery of damages caused by a breach of a public duty, the damage, and not the breach of duty, is that for which the plaintiff sues ; his object being, not to vindicate a right on behalf of the public, but to recover com- pensation for a wi'ong done to himself. Between the public and the private wrong, concurring in a cause of action of the kind now alluded to, the distinction should always be carefully traced out. The mode of tracing it is illustrated by the following case, in which an action was brought against a witness for disobeying a subpoena ; and the court ob- served : " That, in such an action, brought for a breach of duty, not arising out of a contract between the plaintiff and the defendant, but for disobeying the order of a competent authority, the existence of actual damage or loss is essential to the action ; as the law will not im- ply a loss to the plaintiff from mere disobedience to the subpoena." Ooullng V. Ooxe, 6 C. B. 703. In other words, the law will here dis- criminate between the breach of the public duty and the personal in- jury, which form the component elements of the complete right of action. In the case just mentioned, the right of action was founded upon the breach of a public duty, existing at the common law, and pro- ductive of damage to the plaintiff. But a public duty may also be im- posed in part or wholly by the statute law ; and when this is so, the precise nature and extent of the statutory duty must of course be de- termined by reference to the words of the act creating it. In Swer v. Jones, 6 Mod. 27, Lord Holt said : " Wherever a statute enacts any thing, or prohibits any thing, for the advantage of any person, that per- son shall have a remedy to recover the advantage given to him, or to have satisfaction for the injury done to him, contrary to law, by the same statute ; for it would be a fine thing to make a law by which one has a right, but no remedy but in equity." This expression is equiva- lent to saying that " where a statute gives a right, then, although in ex- press terms it has not given a remedy, the remedy which by law is ACTIONS FOE TOETS OE WEONGS. 421 Qeueral principles relating to torts. properly applicable to that right follows as an incident." Matjle, B., Braithwaite v. Skinner, 5 Mees. & Wels. 327. In the third place, a right of action for a tort may be founded on the infraction of some private compact, or of some private duty or obliga- tion, and consequential damages to the complainant. Any duty, more- over, must in strictness be deemed " private," whicb is to be observed, not toward the community at large, but in relation to one or more of its members. The class of private duties is consequently^ extremely large, it comprehends duties flowing from express or implied contracts, from bailments, from the relation of master and servant, or of landlord and tenant, and from the occupancy of land, etc. Now, in any case referable to this class, the plaintiff must, in order to sustain his action, be able to prove some kind of contract or obligatioil out of which the specific duty, with a breach whereof the defendant is charged, will flow in legal contemplation, or he must adduce evidence of facts establish- ing such relation between the defendant and himself, that such specific duty will result. And further than this he must also show a breach of the duty thus raised, and consequential damage to himself. A private duty may exist at common law, for a breach of which, if coupled with consequential damage, an action will be maintainable. A breach of con- tract may be so intended and planned ; so purposely fitted to time, cir- cumstances and conditions ; so inwoven into a scheme of oppression and fraud ; so made to set in motion innocent causes which otherwise would not operate, as to cease to be a mere breach of contract, and be- come, in its association with the attendant circumstances, a tortious and wrongful act or omission. Rich v. If. Y. Cent. <& Hudson River a. R. Co., 87 E". Y. 398. Although a tort differs essentially from a contract as a foundation of an action, it not unfrequently happens that a particular transaction admits of being regarded from two dif- ferent points of view, so that, when contemplated from one of these points, it presents all the characteristics of a good cause of action upon contract ; and, when regarded from the other, it offers sufficient materials whereupon to found an action for a tort. Thus carriers war- rant the transportation and delivery of goods intrusted to them ; attorneys, surgeons and engineers undertake to discharge their duty with a reasonable amount of skill, and with integrity; and for any neglect or unskillfulness by individuals belonging to one of these professions, a party who has been injured thereby may maintain an ac- tion, either in tort for the wrong done, or for a breach of the contract at bis election. In short, wherever there is a contract and something to be done in the course of the employment which is the subject of 422 ACTIONS FOR TOETS OE WEONGS. General principles relating to torta. that contract, if there is a breach of a duty in the course of that em- ployment, the plaintiff may recover either in tort or on contract, that is to say, where there is an employment, wliicli employment itself creates a duty, an action on the case will lie for a breach of that duty, although it may consist in doing something contrary to an agreement made in the course of such employment by the party upon whom the duty is cast. Courtenay v. Earle, 10 C. B. 83; Howard v. Shepherd, 9 id. 319, 321 ; Brown v. Boorman, 11 01. & F. -±4. Where a tort complained of thus flows from a contract express or implied, there is manifestly a direct privity between the parties. It must not, however, be therefore inferred that privity is, in general, necessary to support an action in tort, for many of the cases just cited show that it is not so. And for the purpose of establishing the fundamental distinction between actions of tort and of contract, the fol- lowing cases may be instanced : A., a stage proprietor, contracts with 13. to carry his servant, C, and in doing so, is guilty of negligence, which causes injury to C. , and consequent damage, by reason of loss of service, to his master. Under these circumstances, A. may be sued in an action upon contract by B., and in an action of tort by C. ; privity not being needed to support such latter action, which is founded upon the principle, that where a coach proprietor undertakes to convey a pas- senger, and does so negligently, he is amenable for the consequences. Marshall v. YorTc, Newcastle and Berwick R. Co., 11 C. B. 655; Paeke, B., Longmeid v. Solliday, 6 Exch. Y67; NoltouY. Western R. R. Co., 15 K Y. 444; S. C, 10 How. 97. In like manner, if a mason contracts to erect a bridge, or other work, on a public road, and erects it not in accordance with his contract, and so as to be a nuisance to the highway, a third person, who sustains an injury by reason of its defective construction, may recover damages from the contractor, who will not be allowed to protect himself from liability by showing an absence of privity between himself and the injured party, or that he is also liable to another party for a breach of his contract. Paeke, B., Longmeid v. Holliday, 6 Exch. Y67. So, if an apothecary or a physician administers improper medicines to his patient, or a surgeon unskillfully treats him, and thereby injures his health, the apothecary, physician or surgeon will be liable to the patient, even where the father or friend of the patient may have employed such physician, etc., and was to pay him ; for, though no such contract had been made, the physician, etc., would be liable to an action for his mal- feasance, if he gave improper medicines, or if the surgeon unskilKuUy . treated his patient. Pippin v. Sheppard, 11 Price, 400 ; Gladwell v. ACTIONS rOH TORTS OK WKONGS. 423 General principles relating to torts. SUggall, 5 Bing. N. C. Y33 ; Jndgra., 6 Exch. 767. In one case, the defendant was a person whose business it was to prepare drugs for the market ; and an action was brought against him to recover damages for negligently putting np, labeling and selling a jar of what purported to be the extract of dandelion, a simple and harmless medicine, while the article actually sold was the extract of belladonna, which is a deadly poison; and after it had passed through the hands of several dealers, a portion of the contents of the jar was sold to the plaintiff, who took it in pursuance of tlie prescription of a physician, as a medicine, and was, in consequence, greatly injured ; and it was held that the de- fendant was liable, on the ground that his negligence put human life in imminent danger; and that the want of privity of contract did not make any difference as to his liability. Thomas v. Winchester, 6 N. Y. 697. In relation to privity as an ingredient in an action founded upon tort, it is sometimes made a question how far it is necessary to allege and prove that the defendant was guilty of a fraud, as the following case will show : The plaintiff's father purchased of the defendant a gun, warranted to have been made by a particular maker, stating at the same time that the gun was required for the use of himself and his son. The plaintiff, having been injured by the bursting of the gun, sued the defendant for damages in an action on the case. At the trial it was proved that the gun had not, in fact, been made by the particu- lar individual named in the warranty ; and a general verdict, with heavy damages, was found for the plaintiff. The defendant having moved in arrest of judgment, the court were called upon to decide as if the following facts had been actually found by the jury, viz., that the defendant had knowingly sold the gun in question to the father, for the purpose of ieing used hy the plaintiff, and had knowingly made a false warranty that this might be safely done, in order to effect the sale ; and further, that the plaintiff, on the faith of such warranty, and helieving it to he true, used the gun, and thereby sustained damage. And it was contended, on behalf of the defendant, that there was no privity of contract between himself and the plaintiff ; that there was no breach of any public duty, nor even a violation of any private right existing between the parties to the action. The court, however, held, that the defendant, having been guilty of a deceit, was responsible for its consequences whilst the instrument sold by him was in the posses- sion of an individual to whom his fraudulent statement had been com- municated, and for whose use he knew it was purchased. Langridge V. Levy, 2 Mees. & Wels. 519, 531 ; S. C, 4 id. 337. It must not, 424 ACTIONS FOE TOETS OE WEONGS. Fraudulent representations as to credit of a third person. however, be inferred from the preceding case, that " whenever a duty is imposed on a person by contract or otherwise, and that duty is vio- lated, any one injured by it may have a remedy against the wrong- doer." Judgm., 2 Mees. & Wels. 530. Such a principle, if recognized, would impose an indeiinite extent of liability, and lead to the most ab- surd and outrageous consequences. This important limitation of the rule respecting privity is exemplified in a recent case. A husband and his wife sued in tort for an injury to the wife, caused, as the complaint alleged, by the fraudulent and deceitful warranty of a lamp sold by the defendant. The case showed that the warranty was made to the hus- band, and the jury negatived the existence of fraud, and the court held that the wife could not properly be joined as a co-plaintiff in the ac- tion, because the injury to her flowed from the breach of a contract which was made by the husband alone. Longmeid v. Holliday, 6 Exch. 761. The absence of fraud clearly distinguishes this case from that of Langridge v. Levy, last cited. The court observed : " There is no doubt that if the defendant had been guilty of a fraudulent repre- sentation that the lamp was fit and proper to be used, knowing that it was not, and intending it to be used by the plaintiff's wife or any par- ticular individual, the wife, or that individual, would have had an action for the deceit, upon the principle on which all actions for deceitful repre- sentations are founded, and which was strongly illustrated in the case of La/ngridge v. Levy, viz., that if any one knowingly tells a false- hood, with intent to induce another to do an act which results in his loss, he is liable to that person in an action of deceit. But the fraud being negatived in this case, the action cannot be maintained on that ground by the party who sustained the damages." The court then proceeded to remark that there are other cases, no doubt, beside those of fraud, in which a third person, though not a party to the contract in question, may sue for damage, if it be broken ; those cases occurring, however, where, as in the examples already given, ante, 421, there has been a wrong done to that person, for which he would have had a right of action, though no such contract had been made. " Fraud and deceit in the defendant and damage to the plaintiff arc a sufficient foundation for the action of trespass on the case, though no benefit accrue to the defendant. The action will lie whenever there has been the assertion of a falsehood with a fraudulent design as to a fact, when a direct and positive injury arises from such assertion." "Welles, J., White v. Merritt, 7 K.T. 356, 357 ; Benton v. Pf-att, 2 "Wend. 385. § 2. Fraudulent representations as to credit of a third person. ACTIO]STS FOR TORTS OR WRONGS. 425 Fraudulent repreaeutatious as to credit of a third person. Fraud is not actionable, nor is it available by way of defense to an ac- tion unless in the one case it has occasioned damage to the complain- ing party, or in the other, has induced the defendant to make the con- tract. A bare lie, for instance, although told with an intent to injure, would not, if unproductive of damage, lay the foundation of an action, nor would a misrepresentation, however corruptly made, afiord a good defense to an action upon contract, unless it were shown to have operated as an inducement to the defendant to enter into the alleged contract. Langridge v. Levy, 2 Mees. & "Wels. 531 ; Pasley v. Free- man, 3 Term Rep. 57. In order to constitute a fraud by reason of mis- representations or misstatements, three circumstances must concur or combine ; it must appear, first, that the representation was contrary to the fact ; secondly, that the party making it knew it to be contrary to the fact, or that he intentionally made the representation without know- ing whether it was true or false, for the purpose of inducing the other party to act upon it ; and thirdly and chiefly, that it was the false representation which gave rise to the contracting on the part of the other party, for there must be not merely a fraudulent attempt at over- reaching, but an attempt so far successful as to have operated as an in- ducement to the other party to contract. Atwood v. Small, 6 CI. & F. 444 ; Burnes v. Pennell, 2 H. L. Cas. 529 ; Moens v. Seyworth, 10 Mees. & Wels. 147. If A. fraudulently makes a representation which is false, and which he knows to be false, to B., meaning that B. shall act upon it, and B., believing it to be true, does act upon it, and thereby suffers a dam- age, B. may maintain an action upon the case against A. for the deceit, there being here that conjunction of wrong and loss which entitles the injured and suffering party to a compensation in damages. Gerhard V. Bates, 2 Ell. & Bl. 488. When the conditions thus indicated are fulfilled, there can be no doubt, that according as the party on whom a fraud has been practiced, is plaintiff or defendant, he inay rely upon it as a ground of action, or as a matter of defense against the party who practiced it ; and in illustration of this, see Jarrett v. Kennedy, 6 C. B. 319 ; Wontner v. Shairp, 4 id. 404 ; Murray v. Mann, 2 Exch. 538 ; Vane v. Colloid, 1 id. 798 ; Cornfoot v. Fov)Tce, 6 Mees. & Wels. 358 ; Atkinson v. Pocoek, 1 Exch. 796 ; Southall v. Bigg, 11 0. B. 481; Connop v. Levy, 11 Q. B. 769; Spencer y. Handley, 4 Mann. & Grang. 414. It may perhaps be not altogether out of place to add, while upon this subject, that an injury may be caused by an act prima fade savoring of fsilse representation for which an action will not lie, on the ground that no element of fraud, either legal or moral, in fact 54 426 ACTIONS FOE TORTS OR WRONGS. Fraudulent representatious as to credit of a third person. enters into it. In one case the court remarked : " If every untrue statement which produces damage to another would found an action at law, a man might sue his neighbor for any mode of communicating erroneous information, such, for example, as having a conspicuous clock too slow, since the plaintiff might thereby be prevented from attending to some duty or acquiring some benefit. A doctrine creating . legal responsibility in cases so numerous and so free from blame must be restrained within some limits. But an averment that the falsehood of his representations was known to him, and that he knowingly and willfully uttered it seems to carry the matter somewhat further. If, indeed, the defendant were under any legal obligation to state the truth correctly to the plaintiff, there would be a grievance in misleading him, for which an action on the case would lie; still moi'e so, if he made the false representation with a view to some unfair advantage to him- self." Barle^J v. Walford, 9 Q. B. 208. If A. makes a false and fraudulent representation to the public which is calculated and intended to deceive byindncing persons to pur- chase for value that which is worthless, it affoids a ground of action against A. to any person who is deceived and who purchases and suf- fers damages thereby, in the same manner and to the same extent as though the representation had been directly made by A. to such per- son. JBagshaw v. Seymour, 4 J. Scott (N. S.), 873 ; Gerhard v. Bates, 2 Ell. & Bla. 476 ; Wontner v. Skairp, 4 C. B. 404 ; Shotwell v. Maii, 38 Barb. 445 ; Cazeaux v. Mali, 25 id. 578. If the officers of a corporation, in the ordinary course of their busi- ness, issue a card, purpoi-ting to be signed by all the directors, contain- ing a false statement as to the financial condition of the com^^/any, and a third person acts upon such statement to his injury, he will have no right of action against a director who merely saw the card in print, but who neither circulated it, nor knew whether the statements therein were true or false. WaJceman v. Dalleij, 51 N. Y. 27 ; S. C, 10 Am. Eep. 551. But where a bank director, with knowledge of the falsity of his statements, represents to a third person that the bank is solvent and prosperous, advises him to subscribe to the capital stock, and thereby induces him to subscribe and give a bond and mortgage upon his property to secure his subscription, the director will be liable to such third party for the loss sustained by reason of the subscription. Eullard V. Briggs, 31 N. T. 518; Scott v. Dixon, 1 El. & El. 1099. The mere fact of being a director and stockholder of a corporation is not, per se, sufficient to hold a party liable for the frauds and mis- representations of the active members of the corporation. Some ACTIONS FOE TOETS OE WEONGS. 427 Fraudulent representations as to credit of a third person. knowledge of and participation in the act claimed to be fraudulent must be brought home to the person charged. Arthur v. Griswold, 55 N. Y. 400. An action lies against a person who makes a false representation as to the credit of a third person, when it appears that the person making the representation knew that the person so represented to be solvent was at the time insolvent ; and when it further appears that the plaint- iff in consequence trusted his property to such third person and thereby lost his debt. Pasley v. Freeman, 3 Term Eep. 51 ; Upton v. Yail, 6 Johns. ISl ; Zabriskie v. Smith, 13 IST. T. 322. So if a person, in bad faith, and with a view of inducing others to credit a merchant, represents that he has examined into his affairs and considers him sol- vent and worthy of credit, and that he is doing Avell, when such mer- chant is in fact insolvent, and the party making the representations has not investigated his affairs, and knows nothing of his business condi- tion, except that he is largely indebted, will be liable to third persons acting on the faith of the representations for all losses sustained thereby. lb. See Indianapolis, Peru d; Chicago B. P. Co. v. Tyng, 63 JST. Y. 653. It has been held in this State tliat if a person makes a repre- sentation which is material, and it turns out to be false in fact to the injury of the party so influenced and acting upon it, an action will lie against the person who made the representation, even though he did not actually know that it was false at the time he made it. Craig v. Ward, 36 Barb. 378 ; Bennett v. Judson, 21 N. Y. 238. But the case last cited has been so frequently criticised and distinguished in subsequent decisions that it can no longer be regarded as authority ; and it is now held that in an action for fraud, founded upon repre- sentations made by the defendant, it must be made to appear that he believed, or had reason to believe at the time he made them, that the representations were false, or that without knowledge he assumed or intended to convey the impression that he had actual knowledge of their truth, and that the plaintiff relied upon them to his injury. Wake- man V. Dalley, 51 JST. Y. 27; S. C, 10 Am. Eep. 551 ; Marsh v. Fal- her, 40 N. Y. 562; Chester y. Comstock, id. 575, note; Meyer y. Ami- don, 45 id. 169 ; Oherlander v. Speiss, id. 175 ; Duffany v. Ferguson, ut, 5 East, 89, note. The right of a master to recover damages for enticing away a ser- vant to whose services such master is entitled has been long settled in this State. Soidmore v. Smith, 13 Johns. 322. And the right of ac- tion is not limited to these cases in which a master has a right to claim the services of his apprentice or child. For where an employer hires a person of full age as his servant, for a year, or for any other fixed time, this creates the relation of master and servant, and the employers may maintain an action against any one who imprisons such servant, for the injury sustained by the loss of service ; for every master has, by his contract, purchased for a valuable consideration the services of his domestics for a limited time ; and for that injury the law has given him a remedy by action against the wrong-doer ; and he may also have an action against the servant for the non-performance of his agreement. Woodward v. Washburn, 3 Denio, 369. But if the person employing such servant was not apprised of the former contract, no action will lie against him, unless he refuses to restore him on demand. lb. ; James V. Le Hoy, 6 Johns. 274. But the employment of an apprentice will render the person employing him liable to the master for the value of his services, whether there was knowledge that he was an apprentice or not. lb. In order to maintain an action for enticement from service, it must appear that the child, apprentice or servant was at the time in the ac- tual service of the parent or master, and that the moving cause of the desertion was the inducement held out by the defendant. Caughey v. Smith, 47 N. Y. 244. If before the child, apprentice or servant had ever met or communicated with the defendant there had been an abandonment of the service, it cannot be said that the defendant en- ticed the former from such service. lb. ; Butterfield v. Ashley, 6 Gush. 249. In this State no absolute property can be acquired in the person or personal services of an adult, by an executory contract ; but it is ac- tionable for one person to entice from another a servant who is in the employ of the latter as a servant under a contract which is not fully executed. Haight v. Badgeley, 15 Barb. 499. In the case last cited the action was founded upon tlie fact that the defendant's wife went 438 ACTIONS FOE TORTS OR WRONGS. Escape. upon the premises of the plaintifi and enticed a servant girl in his em- ploy to leave his service ; the cause was tried by a jury, who gave the plaintiff a verdict for $20 damages, which judgment was affirmed by the Supreme Court. § 5. Escape. An escape is any liberty given to the prisoner which is not authorized by law. An action for an escape is always founded upon the supposition that there has been a previous arrest. An escape from arrest under civil process is either negligent or volunta/ry / it is negligent where the party escapes without the knowledge or consent of the sheriff, constable or officer ; and is voluntary where such sheriff, constable, etc., permits him to go at large. An escape on mesne pro- cess is where the prisoner is not confined on final process, but on some other process issued in the course of the proceedings, and he unlawfully obtains his liberty. An escape on final process is where the prisoner ' obtains his liberty unlawfully while lawfully confined, and under an execution or other final decree or process. If a defendant has once been taken in' execution, and he is after- ward seen at large, without the liberties 'of the jail, for ever so short a time, as well before as after the return of the execution, it will be an escape, unless it was done by the consent of the plaintiff in the execu- tion, given at the time of the escape, or previously thereto, or founded on a good consideration, if given after such escape, or when the pris- oner is removed under the authority of a writ of habeas corpus ad testificandum, or when the defendant has been discharged under an insolvent act. Ga/ntillon v. Graves, 8 Johns. 472 ; Sweet v. Palmer, 16 id. 181 ; Hassam v. Griffin, 18 id. 48. If a prisoner who has given a bond for the jail liberties oversteps the boundaries, which are not certainly known, but he returns immediately, and before suit com- menced, this will be an involuntary escape, for which the sheriff wiU not be liable. Ballon v. Kip, 7 Johns. 175 ; Dole v. Moulton, 2 Johns. Cas. 205. If a prisoner who has given a bond for the jail liberties goes at large within the limits, or if a prisoner who would be entitled to the liberties of the jail upon giving such bond goes at large within the liberties of the jail in which he is in custody, it is no escape. But the going at large, beyond the liberties, by a prisoner, without the as- sent of the party at whose instance he is in custody, is an escape. Code of Civil Proc, § 155. Although a constable has sixty days in which to serve an execution, yet, if lie arrests the defendant within that time, and then suffers him to go at large, that is an escape ; and his having the defendant in custody at the end of the sixty days is no legal excuse or defense for the escape. PuVoer v. Mclntyre, 13 Johns. 503. A con- . ACTIONS FOE TOKTS OE WEONGS. 439 Escape. stable arrested a defendant on a civil warrant, issued by a justice of the peace, and then left him at the place of arrest, on his promise to fol- low, which he did not do, and in the mean time he was arrested on a bench warrant in criminal proceedings, by a deputy sheriff, so that the constable could not retake him, and this was held to be an escape which rendered the constable liable. Olmstead v. Raymond, 6 Johns. 62. So, where a sheriff arrested a defendant upon an execution, and then permitted him to be arrested and taken away from his county, by vir- tue of a criminal warrant issued in another county, this was held to be an escape, which rendered the sheriff liable to an action. Brown v. Tracy, 9 How. 93. And see Fairchild v. Case, 24 Wend. 381. "Where a person assumes to act as the agent of a plaintiff in an execution, in the discharge of a defendant who has been arrested thereon, his au- thority must be clearly proved and strictly pursued, or the sheriff wiR be liable for an escape. Orary v. Turner, 6 Johns. 51. An attorney for a plaintiff in an action has no authority, from his general charac- ter as attorney, to discharge the defendant from his arrest on the execu- tion issued upon the judgment, until the money is paid ; and it will be an escape if the sheriff discharges him without satisfaction of the judgment, even by the direction of such attorney. Jackson v. Bartlett, 8 Johns. 361 ; Kellogg v. Gilbert, 10 id. 220 ; Lovelly. Orser, 1 Bosw. 349. Whore a plaintiff sues for a penalty in behalf of himself and of the peo- ple, he has no right to discharge the judgment, or to compound with the defendant, without leave of the court, or without receiving payment ; and if the defendant has been arrested on an execution upon such judgment, he cannot legally be discharged therefrom by the sheriff, without satisfaction, even by the plaintiff's consent ; and such discharge is no bar to an action for an escape, for the recovery of the people's part of the money. Minton v. Woodworth, 11 Johns. 474. A justice who j-enders a judgment, and issues an execution thereon, upon which the defendant is arrested by a constable, has no authority, merely as a justice, and without special power from the plaintiff therein, to dis- charge the defendant from the arrest ; and such discharge will be no defense to an action against the constable for the escape. Van Slyck V. Taylor, 9 Johns. 146. But an execution against the person issued out of the Supreme Court may be set aside by an order of that court. Such an order, valid upon its face, is a justification to the sheriff for a release of a prisoner held under the execution. PincJeney v. Eegeman, 53 N. Y. 31. In an action for an escape, the sheriff may show a valid order for the discharge 440 ACTIONS FOR TORTS OR WRONGS. Escape. of the defendant in execution, though it has never been formei'ly served upon him. Richnond v. Praim, 24 Hun, 578. Where a debtor is brought before a justice of the Supreme Court, upon a warrant issued by virtue of the provisions of the non-imprison- ment act, no recognizance need be taken for his appearance at the ad- journed day. Tlie officer who arrested him is bound to bring him be- fore the judge and to keep him in custody until he is duly discharged or committed. And if no recognizance is taken, the oificer is bound to keep him in his custody, and he will be liable if he escapes. Latham V. Westervdt, 26 Barb. 256; S. C, 16 id. 421. A sheriff cannot be imprisoned in the jail of which he has the custody ; and if a coroner who has arrested him on an execution leaves him in the county jail, he will be liable to an action for an escape. Day v. Brett, 6 Johns. 22 ; Code of Civil Proc, §§ 175, 176. In an action against a sheriff or other officer for an escape of a pris- oner, it is a defense that the escape was without the assent of the de- fendant, and that, at the commencement of the action, he had the pris- oner within the liberties, either by his voluntary return or by recap- ture. Code of Civil Proc, § 171. And it is not necessary for the sheriff to allege or prove that such defendant was in custody all the time after such return. Middle District Hank v. Deyo, 6 Cow. 732. After an escape upon mesne process, it is sufficient if the sheriff has the body of the defendant at the return day of his process. Stone v. Woods, 6 Johns. 182. Where a sheriff or constable arrests a defendant on an execution, and he then voluntarily permits him to escape, he cannot retake or de- tain him without a new authority from the plaintiff. By his own wrongful act he has lost all legal control over the defendant, and no act of his own, and no assent of the defendant, with whom he is pre- sumed to be in collusion, can avail him, if the plaintiff elects to hold him liable. Thomj>so7i v. Lockwood, 15 Johns. 256 ; Lansvng v. iB'leet 2 Johns. Cas. 3. If a sheriff suffers a voluntary escape of a defendant whom he has arrested, the plaintiff may issue a new execution and retake the defend- ant. Wesson v. Chamierlain, 3 N. T. 331. If a debtor is arrested upon an execution, and he gives bail for the jail limits, and the plaint- iff in the execution, or any one in his behalf, by artifice or fraud, pro- cures the prisoner to leave the limits and thus escape, the sheriff' will not be liable. Dexter v. Adams, 2 Denio, 646. If the escape is fraudulently procured by a third person for the benefit of the plaintiff but without his knowledge, the acts of the third person will be deemed ACTIONS FOK TORTS OE WEONGS. 441 Escape. to be the acts of the plaintiif, in case he seeks to maintain an action for the escape so procured ; and the ratification of such fraudulent acts, by bringing the action, will be sufficient to defeat the action. lb. So, if a prisoner in execution voluntarily escapes from the jail limits to which he is entitled, and he remain off of the limits longer than he otherwise would, by reason of inducements held out to him by the plaintiff, for the purpose of enabling him to bring an action against the sheriff, before his return thereto, this will defeat the action. Van Wormer v. Yavi Voast, 10 Wend. 356. Though a constable is not bound to notice the fact that a defendant is not liable to arrest on exe- cution, yet if he chooses to notice it, or neglects to take a person privi- leged from arrest, and he can show that he is so privileged, it is a good defense in an action against him. JRay v. Hogehoom, 11 Johns. 433. Where the plaintiff has no right to arrest the body of the defendant, he cannot suffer any injury from a neglect to execute the process, nor can he found any action thereon. lb. If a defendant is arrested on an execu- tion when lie is exempt from arrest thereon, and he then escapes, his exemption from arrest will be a sufficient defense for the sheriff in an action against him for the escape. Phelps v. Barton^ 13 Wend. 68 ; Mc- Dvffie V. Beddoe, 7 Hill, 578. A sheriff or constable, when sued for an escape, cannot defend on the ground that either the judgment or the execution is erroneous or irreg- ular. Cables. Coo/)er, 15 Johns. 152; Ginochio y. Orser,! Ahh. 433; Wesson V. Chamberlain, 3 N. T. 331 ; Jones v. Cook, 1 Cow. 309 ; Bissell V. Kijp, 5 Johns. 89 ; lienioh v. Orser, 4 Bosw. 384. But it may be shown as a defense that the judgment or the execution is void, which, if proved, will defeat the action. Phelj^s v. Barton, 13 Wend. %i, ; Gontant v. Chapman, 2 Q. B. 771 ; Cornell v. Barnes, 7 Hill, 35; Bacon v. Cropsey, 7 E". Y. 195,199; Carpentier v. Willet,2?> How. 225 ; S. C, 31 N. Y. 190 ; 1 Keyes, 510 ; 1 Abb. Ct. App. 312 ; affirming, S. C, 6 Bosw. 25. Where a defendant, who is charged in execution in a civil action, is wanted as a witness on the trial of a civil action, the sheriff, on being tendei-ed his legal fees, is bound to bring him up on a habeas corpus ad testificandum, and such an act will not be an escape. NoUe v. Smith, 5 Johns. 357 ; Wattles v. Marsh, 5 Cow. 176 ; Hassam v. Griffin, 18 Johns. 48. This process relieves the prisoner temporarily from his duress ; and the sheriff is not bound in the mean time to keep him al- ways in sight, or with the same strictness as before ; and if the prisoner, of his own head, should go about for a short time, on his own business, out of the view of the sheriff, this is not an escape. lb. A defendant 56 442 ACTIONS FOR TORTS OR WRONGS. Escape. in an action in a justice's court, who has given security on an adjourn- ment of the cause, in which the surety has agreed that the defendant will appear and answer, or that in default thereof he will pay the debt or damages or costs which may be adjudged to the plaintiff, may be removed from the limits of a jail to which he has subsequently been committed in another cause, and brought before the justice on a habeas corpus, to secure his surety from liability; and such leaving of the limits will not subject the sheriff to an action for an escape. Martin V. Wood, 1 Wend. 132. Where a prisoner in execution, who has given bonds for the limits, is arrested by authority of law, within those limits, and carried away therefrom, against his will and without his consent, by virtue of a war- rant issued by the house of representatives in congress, and executed by its sergeant-at-arms, and after his release from such arrest, he returns to the limits as soon as practicable, such absence is not an escape for which the sheriff is liable. His being off the limits in that manner is no more an escape than if he had been at the same time removed and held by a habeas corpus ad testificandum, or by force of a judicial order. WicMhausen v. Willett, 12 Abb. 319; S. C, 21 How. 40, "Where a prisoner in a sheriff 's custody goes or is at large beyond the liberties of the jail without the assent of the party at whose instance he is in custody, the sheriff is answerable therefor, in an action against him, as follows : 1. If the prisoner was in custody by virtue of one order of arrest, or in consequence of a surrender in exoneration of his bail, before judg- ment, the sheriff is answerable to the extent of the damages sustained by the plaintiff. 2. If the prisoner was in custody by virtue of any other mandate, or in consequence of a surrender in exoneration of his bail, after judgment, the sheriff is answerable for the debt, damages or sum of money for which the prisoner was committed." Code of Civ. Proc, § 158. Under the Revised Statutes it was held that where the escape is from an arrest on mesne or interlocutory process, the constable or sheriff h prima facie liable for the amount of the debt for which the arrest was made ; but, if he can show that the prisoner was insolvent, the plaintiff can recover no more than the damages which he has actually sustained by reason of the escape. Latham v. Westervelt, 26 Barb. 256 ; Patterson v. Wester- velt,\^ Wend. 543; Potter v. Lansing,! Johns. 215 ; Russell v. Turner, 7 id. 189 ; Loosey v. Orser, 4 Bosw. 391 ; Smiih\. Knapp, 30 N. Y. 581, 592, 3 R. S. 735, § 77, sub. 2, 5th ed. But where the sheriff has arrested a defendant upon an execution, and he afterward ACTIONS FOR TOETS OR WRONGS. 443 False return. suffers him to escape, the plaintiff will be entitled to recover the amount of the execution, and the insolvency of the prisoner will not constitute any defense, either in mitigation, or in bar of the action. Barnes v. WiUett, 35 Barb. 514; MoGreery v. Willett, 23 How. 129 ; Eenich v. Orser, 4 Bosw. 384 ; Hutchinson r. Brand, 9 N. Y. 208 ; S. C, 6 How. Y3 ; 3 R. S. Y36, § 84, 5th ed. But in an action for an escape on an execu- tion, though the sheriff is liable for the whole debt and costs, he is not liable for interest on the amount due on the execution. Hutohvnson V. Brand, 6 How. 73 ; S. C, 9 N. Y. 208 ; Rawson v. Bole, 2 Johns. 454; Thomas Y. "PFee^/, 14 id. 255. When a sheriff is once liable for the escape of a defendant taken in execution, the subsequent death of the original defendant will not dis- charge him. Tanner v. Hallenbeck, 4 How. 297. But, if the prisoner voluntarily returns, or he is retaken before a suit is commenced, this will constitute a defense. 3 R. S. 736, § 85, 5th ed.; Wiggin v. Orser, 5 Duer, 118 ; Garruth v. Church, 6 Barb. 504. It will be no defense to the sheriff that the judgment or execution is voidable or erroneous, though it will be a valid defense to show that it is entirely void. Ante, 441 § 6. False return. There are numerous cases in which the law re- quires officers to make official returns,' in relation to acts done by them in the discharge of the duties of their offices. And it may be laid down as a general rule, that whenever an officer is required by law to make such return, and he returns falsely as to the facts, he will be liable to an action in damages, in behalf of any roerson who is injured by and in consequence of such false return. In making a return to the County Court, ]n answer to a notice of appeal from a justice's judgment, the justice acts ministerially, and he will be responsible for any error which is pi-ejudicial to the party, however pure his motives may have been in the discharge of that duty ; and in order to maintain an action in such a case, it is not necessary to allege or prove that the justice either deceitfully, fraudulently, willfully, knowingly or intentionally made the false return. Houghton y . Swarth- out, 1 Denio, 589. See McDonald v. Buffum, 31 How. 154. In an action against a justice, for making a false return on an appeal, though such return is untrue on its face, still he will not be liable if the facts, when truly stated, would have produced the same result or decision on the appeal. Ford v. Smith, 1 Wend. 48. In such cases it must be made to appear that the complaining party was injured in consequence of the falsity of the return, and if that is not established, no action can be maintained. Millard v. Jenkins, 9 Wend. 298. 444 ACTIONS FOR TOETS OR WRONGS. False return. Where a sheriff or constable makes a false return to either mesne or final process, an action will lie against him in favor of the person who is thereby injured. But where no injury results from such false return, no action can be maintained. Wylie v. Bvrch, 4 Ad. & El. ( N. S.) 566 ; Wintle V. Freetncm, 11 Ad. & El. 539. In an action against a sheriff or constable for an alleged false return, in which the ofiicer has returned that the defendant had no goods, the amount directed to be collected on the execution, with interest, is the measure of damages ; and the officer wiU not be permitted to show as a defense that there was not so much due upon the judgment. Bacon v. Gropsey, 7 N. Y. 195. Nor can he take advantage of the irregularity in issuing the execution, unless it is entirely void. lb.; Cornell v. Barnes, 7 Hill, 35. Though he may show that the defendant in the execution had no property upon which he could have levied, but not that the judgment is still collectible. Ledyard v. Jones, 7 N. Y. 550 ; S. C, 4 Sandf. 67. Where a sheriff has ssized property upon an attachment, and has ad- vertised it for sale upon the execution issued in the action, and when he has been indemnified by the plaintiff in making a sale of such prop- erty, he is still at liberty to return the execution nulla bona, if the property has been taken out of his possession, provided he acts in good faith ; but in making such return lie assumes the burden of showing property out of the defendant in the execution, and thus proving his return to be true. Lummis v. Kasson, 43 Barb. 373 ; Dolson v. Saxton, 11 Hun, 565. Wbere an execution is issued against the body of the defendant, who is arrested thereon by the sheriff, who negligently permits him to escape, and then returns upon the execution that the defendant cannot be found in the county, this is a false retui'n. McArthur v. Pease, 46 Barb. 423. Such a return fixes the bail of the defendant, and in an action against them upon their undei-taking they cannot question tlie truth of the return. lb.; Hissong v. Hart, 7 Jones & Sp. 411 ; Cozine v. Walter, 55 N. Y. 304. If the defendant was duly arrested on the execution, and then permitted to escape, the bail for the defendant may maintain an action against the sheriff upon an allegation that in consequence of his false return tbey were charged as bail, and compelled to pay the judgment. lb. And see Walter v. Middleton, 68 N. Y. 605. The return of a constable or sheriff on an execution, that he has col- lected the money, is conclusive -against such officer in an action by the plaintiff in the execution for the recovery of the money. Sheldon v. Payne, 7 N. Y. 453. And, in an action against a sheriff, in such a case, ACTIONS FOE TOETS OE WEONGS. 445 Nuisance. General character of a nuisance. the return of one of his deputies is equally conclusive. lb. An ofi&cer who returns on his execution that he has collected the money will not be permitted, in an action against him by the plaintiff in the execution, to show that he did not receive money, but promissory notes. Town- send V. Olin, 5 Wend. 207. A sheriff or a constable, who, in an action of replevin, returns that he has taken the property in question from the defendant in that action, and delivered it to the plaintiff in the same action, vrill be estopped from denying the truth of the facts which the return asserts, or those which are necessarily implied from it. KuKlrnan v. Orser, 5 Duer, 242. And, therefore, he will not, in such ease, be permitted to allege that the property was not at that time in the possession of the defendant, but was in his own custody, by virtue of a levy under an attachment which had been previously issued and delivered to him. lb. The return is conclusive proof that, in his own judgment, the property was not bound by the attachment, and it operates to release such property from a;ny lien which a prior levy might have created. lb. § Y. Nuisancie. General character of a nuisance. In its legal sense, a nuisance is any act or thing which injures, annoys, incommodes or offends another, or that renders the enjoyment of life and property unsafe or uncomfortable. A nuisance is something noxious or offensive to any of the senses, either to the sense of sight or hearing, as well as of smelling ; and that may be a nuisance which offends none of the senses, if it be deleterious to the health or safety, or noxious to human enjoyment. Per E. D. Smpth, J., Piehard v. Collins, 23 Barb. 453. A public or common nuisance is such an inconvenience or troublesome offense as annoys the whole community in general, and not merely some particular person. See King v. Morris, etc., M. R. Co., 18 N. J. Eq. 397; Imperial Qas-light Co. v. Broadhent, 7 H. L. Cas. 600. To constitute a public nuisance there must be such a number of persons annoyed, that the offense can no longer be considered a private nuisance ; and whether it is so is generally a question of fact for the jury, or the court sitting in their place. A private nuisance is any act or thing done to the hurt or annoyance of the lands, tenements or hereditaments of another person. A nuisance is to some extent an undefined injury. It is indirect or remote, as distinguished from an immediate or direct invasion of one man' s property by another ; and for this reason, it is the proper subject of an action on the case, which is an appropriate remedy where one party, by a misuse of his own rights or property, does a damage to another ; thougli it differs from an action of trespass or trover which 446 ACTIONS FOE TOETS OE WEONGS. Nuisance. General character of a nuisance. does not lie except for an unlawful taking or conversion of the property of another. The injury of nuisance is of a more comprehensive or miscellaneous character than any other ; for it relates to rights not in their nature specific, definable or tangible, but incident to corporeal prop- erty, or growing out of it, and in part, on this account of this incorpo- real character, varying with the diverse circumstances of individual cases. One of the characteristics of nuisance, as distinguished from trespasser conversion, is that it consists in the use of one's own property, which involves injury to the property or other right or interest of his neighbor. A person may carry on a lawful business in such a manner as to prove a nuisance to his neighbor, and to be liable to an action for damages. J'ish V. Dodge, 4 Denio, 311. If a business is established which sends into a neighboring house smoke and vapor, or offensive odors, or dust and dirt, to a degree which renders it uncomfortable as a habitation, the proprietor has a right of action, and would be entitled to damages in proportion to the degree of the injury. St. Helenas Smelting Co. v. Tipping, 11 H. L. Gas. 642 ; Crump v. Lamhert, L. E., 3 Eq. Cas. 409 ; Eoss V. Butler, 19 N. J. Eq. 294 ; Bishop v. BanTcs, 33 Conn. 118. And a business which excites constant and reasonable apprehension of danger, although no actual injury has been occasioned thereby, is an actionable nuisance. See Barnes v. Hathorn, 54 Me. 124. Thus, by means of blasting rocks, " all persons on or about the premises of the plaintiff were kept in continual fear and jeopardy, rendering a proper attention to business full of fear and danger," etc., and this was held to constitute a nuisance, such as would form a proper ground for an action on the case. Scott v. Bay, 3 Md. 431. And see Allen v. State, 34 Tex. 230 ; Wier's Appeal, 74 Penn. St. 230. But whenever a constitutional statute expressly authorizes or permits certain acts to be done, those acts cannot be deemed by judgment of law to be a nuisance. Harris v. Thompson, 9 Barb. 350 ; Williams v. JSr. Y. Cent/ral E. E. Co., 18 id. 222. But, if there is an abuse of such right, or an irregularity in the manner of exercising it, the act may become a nuisance. EenwioJc v. Morris, 7 Hill, 575 ; S. C, 3 id. 621 ; Clarh V. Mayor of Syracuse, 13 Barb. 32. It may further be observed, that while acts done under authority of law zvQ prima facie not to be treated as nuisances, so, on the other hand, a prohibition by public authority makes the thing prohibited jTT-ima facie actionable. Thus, where a city by its charter has power to remove all nuisances, the act of the common council, in declaring a certain house to be a nuisance, because its dilapidated condition endangers the lives of passers by, '\% prima facie evidence of the fact, and throws the ACTIONS FOR TORTS OE "WRONGS. 447 Nuisance, (general character of a nuisance. burden of disproving it on the party complaining of the act of the city, in directing the building to be taken down. Montgomery v. Hutchinson, 13 Ala. 573. So, where the board of health of a city adjudge certain premises to be a nuisance, and an ordinance of the corporation is there- upon passed, directing its abatement, in an action of trespass against the corporation, for the act of an agent in carrying the ordinance into ef- fect, the plaintifi is not at liberty to show that the nuisance did not in fact exist at the time of the adjudication ; nor that, on the part of the board of health, there was any irregularity or non-compliance with the require- ments of the statute in such case. Yan Wormer v. Mayor of Albany, 15 Wend. 262. An action cannot be maintained against one who creates or continues a public nuisance, without proving special and peculiar damage to the plaintiff. Francis v. Schodlkopf, 53 N. T. 152 ; Adams v. Popham, 76 id. 410; Benjamin v. Storr, L. E., 9 C. P. 400; S. C, 10 Eng. Rep. 231. But one who has sustained such damage has a cause of action against one who creates and maintains a common nuisance, al- though a like injury has been sustained by numerous others. lb. As to the nature and degree of such damage, it has been held that being delayed four hours by an obstruction in a highway, and thereby prevented from performing the same journey as many times in a day as if the obstruction had not existed, is a sufficient injury to maintain an action against the obstructor. Greasly v. Codling, 2 Bing. 263. And see Milarhey v. Foster, 6 Oregon, 378 ; S. C, 25 Am. Rep. 531 ; 4 "Wait's Act. and Def. 734, 736. So, where an individual builds a fence across a public highway, he will be liable to an action ; and it will be siifficient damage to sustain the action if a person traveling along such highway is detained in his journey by being compelled to pull down the fence. Pierce v. Da/rt, 7 Cow. 609. So, where one digs a ditch across a public highway, even though it be on his own land, it is a public nuisance ; and if he builds a bridge over it, he will be liable for such damages as are sustained by any one in crossing it, if the injury happened without any want of due care on the part of the person sustaining the injury. Dygert v. Schench, 23 "Wend. 446. The public are entitled to an unobstructed passage upon streets and liighways, including the sidewalks of a city. Cliffords. Dam, 81 N. T. 52. And whoever, without special authority, materially obstructs a street or highway, or renders its use hazardous, by doing any thing upon it, either above or below the surface, as by making or continuing a covered excavation therein, for a private purpose, is guilty of a nuisance ; and, as in all other cases of public nuisance, individuals sustaining spe- 448 ACTIONS FOR TORTS OR WRONGS. Nuisance. General character of a nuisance. cial damage from it, without any want of due care to avoid injury, have a remedy by action against the author or person contiuuing the nui- sance. Congreve v. Smith, 18 N. Y. 79, 82 ; Congreve v. Morgan, id. 84. In such a case the defendant's liability is clear, irrespective of any degree of care or skill in the party who made the excavation, and he is bound, at his peril, to make and at all times to keep the street or highway as safe as though the excavation had not been made. lb. A hole in a sidewalk of a city communicating with a coal vault be- neath is an obstruction to the passage of the street ; and if a person passing along the sidewalk, exercising no special care to avoid an accident, falls through the hole and is injured, he may recover the damages sus- tained from the owner of the premises to which the vault is appur- tenant, without proving negligence on the part of the defendant, and without proving, in the first instance, want of contributory negligence. Such action is not based upon negligence, but upon the defendant's wrongful act ; and aU that it is necessary for the plaintiff to prove to make out a cause of action is the existence of the hole, the respon- sibility of the defendant therefor, and that, in passing, the plaintiff fell into it. Clifford v. Dam, 81 N. T. 52. When permission is given by municipal authorities to interfere with a street solely for private use and convenience in no way connected with the public use, the person obtaining such permission must see to it that the street is restored to its original safety and usefulness. The only effect of permission to obstruct is to mitigate the act from an absolute nuisance to an act involving care in the construction and maintenance of the structure ; and to justify the act, the defendant must not only plead the permission, but also allege and pro ve a compliance with its terms and that the structure was properly made and maintained so as to secure to the public in the use of the street the same safety that was enjoyed while the street was in its original condition. Cliffords. Dam, 81 N. T. 52. The owner of an uninclosed lot is not liable for an unguarded excava- tion or other nuisance created thereon by other parties. Maenner v. Carroll, 46 Md. 193. The owner of land may dig an excavation in his own premises, not substantially adjoining a pubhc highway, and no action lies against him by one who has strayed off the highway and fallen into the excavation. EardcastleY. South Yorhshire Ry. Co., 4 Hurlst. & N. 67; Hounsell v. Smyth, 7 C. B. (N. S.) 731 ; knight v. Albert, 6 Penn. St. 472 ; Eohn v. Zovett, 44 Ga. 251. But a different rule prevails when the pit is dug so near the highway that a person in using the same with ordinary care may fall in. Dec^ v. Car- ACTIONS FOR TORTS OR WRONGS. 449 Nuisance aflFecting personal health or comfort. Ur, 68 ]Sr. y. 283; S. C, 23 Am. Rep. 175. The reason of tlie rule in the latter case is, that a person lawfully using the highway in a reasonable manner is liable to fall in the pit, and where such is the case, a duty is imposed upon the owner to protect the excavation. lb.; McAlpin V. Powell, 70 N. Y. 126 ; S. C, 26 Am. Rep. 555 ; Morgan V. City of Rallowell, 67 Me. 377. Nuisance affecting personal health or comfort. In general, it may be said that any injury to lands or houses, which renders them useless or even uncomfortable for habitation, is a nuisance. In regard to offen- sive odors, a neighborhood has a right to the enjoyment of pure and fresh air. A smell need not be unwholesome, nor endanger the health of the community, to render it a nuisance, for if it is offensive to the senses, and impairs the enjoyment of life and property by rendering it uncomfortable, that will be sufficient. Brady v. Weeks, 3 Barb. 157 ; Catlin V. Yalentine, 9 Paige, 575. A fat-boiling establishment which infects the air with noisome smells, or with gases injurious to health, is a private nuisance, to the hurt or annoyance of lands, tenements or hereditaments of another, if it pre- vents him from obtaining or retaining tenants for his house by reason of the noisome smells or odors produced ; and an action may be maintained to recover the damages sustained by the injured party. Crojpsey v. Murphy, 1 Hilt. 126. Inclosures in a city or town, or near highways or dwellings, wherein are kept large numbers of hogs or cattle, if suffered to remain in an unclean or filthy condition, or if, by reason of excessive noise, they disturb the quiet of the neighborhood, are held to be nuisances, and are action- able and indictable as such. State v. Kaster, 35 Iowa, 221 ; State v. Pay son, 37 Me. 36 L; Bishop v. BanJcs, 33 Conn. 118. And where a railway company erect cattle-pens upon their right of way for purposes of shipping, they are required to exercise such a supervision over them as will insure the cleanliness of tlie pens, so that they will not become generators of noxious and unwholesome gases, depriving residents in their vicinity of the comfortable use and enjoyment of their property. And if, by reason of negligence and carelessness, in respect to such pens, they are suffered to become a nuisance, rendering the houses of those in the vicinity uncomfortable and unwholesome, the company must re- spond in damages for the injuries thus occasioned. III. Cent. Ji. P. Co. V. O-raUll, 50 111. 241 ; Bahcooh v. N. J. Stock Yard Co., 20 E". J. 296. A distillery, with styes, in which large quantities of hogs are kept, the offal from which renders the waters of a creek unwholesome, and the vapors from which render a dwelling uninhabitable, is a nuisance. Smith V. McConathy, 11 Miss. 517. So it is a nuisance to throw, from 57 450 ACTIONS FOR TORTS OR WRONGS. Nuiaaoce affeciing personal liealtU oi- comfort. day to day, into water used for daily purposes of life, any substance that renders it less pure, and excites disgust in those who use it. Lewis V. Stein, 16 Ala. 214. Tlie rule is general, that any person interested in the use and enjoyment of the water of a running stream is entitled to maintain an action for any special injury he may sustain for the cor- ruption of the water by any other person, directly or indirectly, what- ever may be the cause, pretense or occasion. Stein v. Burden, 24 Ala. 130 ; Ca/rliart v. Avhurn Gas-light Co., '2,'2i Barb. 297; Story \. Hanir mond, 4 Ohio, 376. And the pollution of the waters of a navigable stream, so as to impair their value for domestic purposes, is as much a nuisance and actionable as though the stream was not navigable. Phila- delphia V. Gilmartin, 71 Penn. St. 140 ; Watson v. (Jity of Toronto, 4 Up. Can. Rep. 158 ; Wilts Nav. Co. v. Swinton, etc., Co ., L. R., 9 Ch. App. 451 ; S. C, 9 Eng. Rep. 546 ; Atty.-Gen. v. Gee, L. R., 10 Eq. Gas. 131. Erecting a tannery on the upper part of a stream, corrupting its waters and rendering them injurious to those below, is a nuisance. Howell v. McCoy, 3 Rawle, 256 ; HonseeY. Hammond, 39 Earb. 89. And see Greene v. Nunnemaaher, 36 Wis. 50 ; Atty.-Gen. V. Steward, 20 N. J. Eq. 4] 5. So, for placing and keeping a deleterious substance so near a well as thereby to occasion damage to another, an action is maintainable, although from such keeping no damage would have occurred, except for the extraordinary, yet not uncommon action of the elements. Woodward v. Aborn, 35 Me. 271. So, the erection of a cess-pool so near a well as thereby to contaminate the water of the well, and impair its value for domestic purposes, is an actionable nui- sance. Norton V. Scholefield, 9 Mees. & W. 665 ; Wormersly v. Church, 17 L. R. (N. S.) 190. And see Brown v. Illius, 25 Gonn. 585 ; Mar- shall V. Cohen, 44 Ga. 489 ; S. C, 9 Am. Rep. 170. So, it is a nui- sance to place the refuse matters from a tannery on a vacant lot so near dwelling-houses that the offensive smells therefrom render the houses unfit for habitation; and any one who has sustained damage, peculiar to himself, from such nuisance, has a cause of action against the person erecting or maintaining it. Francis v. Schoellkopf, 53 N. T. 152. So, although a stable in a large town or city is not, like a slaughter-pen or a hog-sty, necessarily ov prima facie a nuisance ; yet, if it be so built, so kept, or so used, as to destroy the comfort of the persons owning and oc- cupying adjoining premises, and to impair their value as places of habitar tion, or if the adjacent proprietors are annoyed by it in any manner which could be avoided, it becomes an actionable nuisance. Dargan v. Wad- dill, 9 Ired. 244 ; Pickard v. Collins, 23 Barb. 445. A livery-stable in a city, erected within sixty-five feet of a hotel, was held to he prima ACTIONS FOE TORTS OE WEONGS. 4 51 Nuisance affecting personal health or comfort. fcbcie a nuisance. Coker v Birge, 10 Ga. 336. To sustain an action for an injury resulting from a livery-stable upon the ground that the stable is a nuisance, it is sufficient to establish the injury either from offensive smells, noise, or the unwarrantable collection of flies. It is no defense to the action that the stable was well and properly built, nor that the location is as unobjectionable as any other in a town or city could be, nor that the stable was properly kept and managed. lb.; Aldrich v. Howard, 8 E. I. 24:6. Evidence tending to show that other stables similarly situated do not create similar annoyance to neighboring householders may properly be excluded as irrelevant. lb. ; Broder v. Gaillard, L. R., 2 Ch. Div. 692 ; S. C, 17 Eng. Rep. 693 ; Harrison v. Brooks, 20 Ga. 537. It has been held in Nebraska that a county is not liable in damages to a citizen for the erection of a jail in the immediate vicinity of his resi- dence, nor for suffering it to become so filthy and disorderly as to be a nuisance to himself and family. Welm v. Gage County, 5 Neb. 494. But in Indiana, a county was held liable for erecting and maintaining a pest-house, and treating therein persons infected with a malignant disease, so near to the dwelling-house of the plaintiff that his premises became infected, and unhealthful, and their occupancy unsafe and unpleasant. Hoag v. Vanderburg County, 60 Ind. 511 ; S. C, 28 Am. Eep. 654. But a person sick of an infectious or contagious disease in his own house, or in suitable apartments at a public hotel or boarding-house, is not a nuisance ; and, under the provisions of a city charter, authorizing the common council to make and publish ordinances, by-laws, etc., for the purpose of abating and removing nuisances, they have no power to direct the removal of a person, sick of a contagious or infectious dis- ease, from one place to another, without his consent. Boom v. City of TTtioa, 2 Barb. 104. A bowling alley, kept for gain or hire, is a public nuisance at common law, although gambling is expressly pro- hibited ; and the trustees of an incorporated village, who act under a charter authorizing them to pass by-laws relating to nuisances, have power to prohibit the keeping of bowling alleys for hire. Tanner v. Trustees of Albion, 5 Hill, 121 ; TTpdihe v. Campbell, 4E. D. Smith, 570. In conformity with the general law of nuisance, no man has a right to suffer animals of a dangerous kind to run at large, so as to en- danger either the person or the property of another ; and, if he does, he is responsible for all damages which result from the acts of such animals. McMa/ims v. Finan, 4 Iowa, 283. The right of action for injuries done by animals, will be discussed in a subsequent place. A 452 ACTIONS FOR TORTS OR WRONGS. Nuisance affecting real estate. furious dog, and more especially one which is accustomed to bite man- kind, is a common nuisance, and may be killed by any one. JDimlap v. Snyder, 17 Barb. 561 ; People v. Board of Police, 24 How. 481 ; S. C, 15 Abb. 167; Brown v. Carpenter, 26 Vt. 638. In an action to re- cov'er damages for killing such a dog, the defendant need not prove that he was obliged to kill him in self-defense. lb. And where a dog is generally a dangerous and unruly animal, and his owner knows it, and permits him to run at large, or keeps him so negligently that he escapes from confinement, any person will be jus- tified in killing the dog as a nuisance. Putnam v. Payne, 13 Johns. 312. And this is especially the case when such dog has been recently bitten by another dog which is mad. lb. ; Wolf v. Chalker, 31 Conn. 121. So the inhabitant of a dwelling-house may lawfully kill the dog of another when such dog is in the habit of haunting his house, and by barking and howling by day and by night, disturbs the peace of his family, if the dog cannot otherwise be prevented from annoying him, although a wanton destruction of the animal is not justifiable. Brill v. Flagler, 23 Wend. 354. Mere noise alone, although not injurious to health, if unusual, ill- timed or deafening, may be an actionable nuisance. Soltan v. DeHeld, 9 Eng. L. & Eq. 104 ; Qrump v. Lambert, L. R., 3 Eq. Cas. 409. A nuisance by noise is emphatically a question of degree. Gaunt v. Fynney, L. R., 8 Ch. App. 8 ; S. C, 4 Eng. Rep. 718. The character or quality of the noise is always taken into consideration, as well as the quantity and the time when it is produced. See Bishop v. BanTcs, 33 Conn. 121. It is not every trivial noise that will be sufficiently in- jurious to be actionable. But, to sustain such an action, it is not neces- sary that the plaintiff should be driven from his dwelling ; it is enough that the enjoyment of life and property be rendered uncomfortable. The business of boiler- making in a compact part of a city may be a nui- sance by reason of the noise inseparable from the bnsiness. Fish v. Dodge, 4 Denio, 311. So the use of a steam whistle, when not neces- sary to the successful prosecution of a business, may be designated a nuisance. Butterfleld v. Kl^aber, 52 How. 255. So the ringing of bells in a building adjoining a dwelling maybe so annoying to the occu- ])auts of the dwelling as to constitute a nuisance. Soltan v. Be Held, 9 Eng. L. & Eq. 104. Nuisance affecting real estate. Where an injury is committed to a man's dwelling-house or real property, or to some right or privilege incident thereto, by the act of another, and without force, he may have ACTIONS FOE TOETS OE WEONGS. 453 Nuisance affecting real estate. an action on the case against the party who created or who continues the nuisance, and recover damages for the injury sustained. Thus, if one person erects a building upon iiis own lauds, and so near the line that the eaves or gutters project over the land of his neighbor, and the rain is thus thrown or the water falls therefrom on the lands of the latter, an action will lie for the injury. PenruddocMs Case, 5 Coke, 101 ; Aiken V. Benedkt, 39 Barb. 400. A complaint stated that the defendant possessed a messuage adjoining a garden of the plaintiff, that he erec- ted a cornice upon his messuage, which projected over the garden of the plaintiff, and damaged it, and that the plaintiff had been incom- moded in the possession and enjoyment of his garden; and it was held that the erection of the cornice was a nuisance from which the law would infer injury to the plaintiff, and that he was entitled to main- tain an action in respect thereof, without proof that rain had fallen between the period of the erection of the cornice and the commence- ment of the action. Fay v. Prentice, 1 Man., Grang. & Scott, 828. So, if he fixes a spout to his own house from which the water falls into the yard of his neighbor and injures the foundation of his build- ing. Reynolds v. ClarTc, 1 Strange, 634. So building a roof with eaves which discharge rain water by a spout into adjoining premises is au injury for which the landlord of such premises may maintain an ac- tion and recover damages as reversioner, while the premises are under demise and in the occupation of a tenant, if the jury think there is a damage to the reversion. Tucker v. Newman, 11 Ad. & El. 40. But the fact that the branches of a tree, not noxious or poisonous in its na- ture, overhang from five to fifteen feet the garden of an adjoining owner, does not, per se, render the branches a nuisance so as to author- ize an action for damages, where the injury resulting from them is merely nominal. Countryman v. Lighthill, 24 Hun, 405. In actions for nuisances in respect of real property, whether by mis- feasance, which is the improper performance of some act which might be lawfully done ; or malfeasance, which is doing what ought not to be done ; or, nonfeasance, which is the omission of some act which ought to be done ; the action ought generally to be brought against him who did the act complained of, or against the person who omitted to per- form the act which he ought to have done. An occupier of a house, who has a cellar opening upon the public street, is bound, when he uses it, to take reasonable care that the flap be so placed and secured, that, under ordinary circumstances, it shall not fall in, or occasion injury ; but, if tlie occupier has so placed and secured it, and a wrong-doer throws it over, the former will not then be liable for any injury occa- 454 ACTIONS FOE TOKTS OE WEONGS. N uisance affecting real estate. sioned thereby. Daniels v. Potter, 4 Carr. & Payne, 262. One who erects a structure which is a nuisance, and conveys the premises with covenants for quiet enjoyment, and the right to maintain such erection, is hable for damages for a continuance of the nuisance by his grantee ; for by his relation with the occupier, he affirms the nuisance, and it may be deemed continued by himself. Waggoner v. Jermaine, 3 Denio, 306. If the owner of lands erects a nuisance upon them, and then lets or demises the premises to a tenant, with the existing nuisance thereon, who continues the same, the owner will be responsible for the continuance during the term. Pickard v. Collins, 23 Barb. M5 ; Pex V. Pedley, 1 Ad. & Ell. 823 ; Fish v. Dodge, 4 Denio, 311. "Where the nuisance existed at the time of the demise, the lessee will be liable separately or jointly with the lessor for the resulting injuries. Irvine v. Wood, 51 N. Y. 224 ; S. C, 10 Am. Eep. 603 ; Code Civil Proc, § 1661. Each one of several persons who continue a nuisance is responsi- ble for it, and he may, as in all cases of wrong, be sued alone or with the other wrong-doers. lb. But it must not be understood that where one contributes to the production of a nuisance, he is, in every case, charge- able with all the damages, although many others have contributed thereto. Thus, if different parties, acting separately and independently, pollute a stream by each discharging from his own premises sewerage therein, one of the several wrong-doers will not be liable for all the dam- ages occasioned by the nuisance thus created, but each is liable to the extent only of the wrong committed by him. Chipman v. Palmer, 77 K". Y. 51 ; Wallace v. Drew, 59 Barb. 413. He who knowingly maintains a nuisance is just as responsible as he who created it. Moshier v. Utica c& Schenectady R. R. Co., 8 Barb. 427 : Brown v. Cayuga & Susq. R. R. Co., 12 JST. Y. 486 ; Wasvier V. Del., Lack, cfe West. R. R. Co., 80 id. 212. And every continuance of a nuisance is, in judgment of law, a fresh nuisance, and entitles the party injured to sue for damages. BecTcwith v. Griswold, 29 Barb. 291 ; Vedder v. Vedder, 1 Denio, 257 ; Brown v. Cayuga da Susq. R. R. Co., 12 N. Y. 492. Formerly it was not well settled whether, when a nuisance was created by one person and continued by another, notice and a request to abate the nuisance was essential to a right of action against the person continuing the nuisance. But it is now held that where it is sought to charge the purchaser of lands with the damages resulting from a nui- sance thereon erected by the former owner before conveyance, it must be shown that before the commencement of the action the purchaser ;had notice or knowledge of the existence of the nuisance, but that it is ACTIONS FOE TOETS OE WEONGS. 455 Kuisance affecting real estate, not necessary to prove a request to abate it. Conhocton Stone Hoad v. Bufalo, N. Y. <& Erie R. R. Co., 51 N. Y. 573 ; S. C, 10 Am. Eep. 646 ; Miller v. Church, 5 Hun, 342. See Wemlick v. Ma Cotter, 87 N. Y. 122. An action lies for the continuance of a nuisance, although the plaintiii has accepted money which was paid into court in full satis- faction of the original erection. Holmes v. Wilson, 10 Ad. & El. 503. So, the parties who cause a niiisance by acts done on the lands of a stranger are liable for its continuance, notwithstanding the defense, that they cannot lawfully enter to abate the nuisance without render- ing themselves liable to an action by the owner of the land. Smith v. Elliott, 9 Barr. 345. Where premises are affected by a nuisance at the time of their de- mise, the owner is liable for any injury occasioned by it to a third per- son, even though the negligence of the tenant contributed thereto. Thus where one passing upon the sidewalk is struck and injured by snow which has slid from a roof, so constructed as to render the snow falling upon it liable to be precipitated upon the sidewalk, the owner of the building is liable for the injuries thereby occasioned, even though the building be at the time in the occupation of a tenant, who is bound to make all needful repairs. Walsh v. Mead, 8 Hun, 387. It is, however, held, that where a landlord lets premises not in themselves a nuisance, but which may or may not be used by the tenant so as to become a nui- sance, and it is entirely at the option of the tenant so to use them or not, and the landlord receives the same benefit whether they are so used or not, the landlord is not responsible for the acts of the tenant. Rich v. Basterfield, 4 C. B. 804. So, it is held that in order to charge one who has created a nuisance with liability for its continuance, after he has parted with the property upon which it is situated or caused, he must be shown to derive some benefit from the continuance, or to have sold with warranty of the continued use of the property, as enjoyed while the nuisance existed. HanseY. Cowing, 1 Lans. 28 S; Swords V. Edgar, 59 N. Y. 28 ; S. C, 17 Am. Eep. 295. And see 4 Wait's Act. and Def. 772, 773. The law not only allows an action for damages in case of nuisance, but it also provides the remedy of abatement, or compulsory discon- tinuance of the nuisance itself. It is sometimes laid down as a general rule, that a public nuisance may be abated by any one, and that a pri- vate nuisance may be abated by any one whose property is injured ; and that an entry on lands for that purpose is justifiable. The extent to which the rule extends in this State will be seen from the cases 456 ACTIONS FOE TOETS OE WEONGS. Nuisance affecting real estate. hereafter noticed. A mere encroaclimeat upon a public highwaj', bj a fence, is not such a pubHc nuisance as will authorize an abatement of the nuisance by a removal of the fence by any individual who may assume to abate it, unless the fence hinders, impedes or obstructs the use of the road to the public. Ilarrower v. Ritson, 37 Barb. 301 ; BaUman v. Bluch, 18 Q. B. 870 ; Goldsmith v. Jones, 43 How. 415 ; ^¥etmore v. Tracy, 14 Wend. 250. To justify a private individual in abating such a nuisance, on his own authority, it must appear that it does him a special injury ; and he can interfere witli it so far only as may be necessary to exercise his right of passing along the highway with reasonable convenience, and not because tlie obstruction happens to be there. lb. Where ashes were deposited in a public highway, by the plaintiff, within one hundred feet of the defendant's house, this was held not to be such a nuisance as would justify the defendant in scattering and wasting the ashes, although they were deposited in such a manner as to be in the way of carriages, and to render the road less commodious, provided the ashes did not impede traveling either on foot or in carriages. Rogers v. Rogers, 14 Wend. 131. So, where a public highway was originally laid out six rods in width, though it was fenced but four rods wide, and it has been used as thus fenced, for thirty years, and there was no evidence that the public had suffered any annoyance or inconvenience from the fences; it was held that the fences were not a public nuisance, which could be abated as such, by the commissioners of highways. PecTcha/mY. Henderson, 27 Barb. 207. Unless the encroachment upon a highway, by fences, is such as to con- stitute a private as well as a public nuisance, an individual, even though he be a commissioner of highways, is not justiiiable in removing the fence. Griffith v. McGullum, 46 Barb. 561. And see Marvin v. Pardee, 64 id. 353. Even the worthless and decayed condition of a public bridge, erected by authority of law, or the peril attending its crossing, will not author- ize its destruction or injury by one not suffering particular annoyance or injury. Owens v. State, 52 Ala. 400. The plaintiff, who owned the land on both sides of the highway where a stream of water crossed it, erected obstructions so that the stream could not be reached, but not interfering with travel on the highway. Such obstructions were held not to be a nuisance, either pub- lic or private, and that the defendant, who had watered his cattle at that place for over twenty years had, from such use, no right to con- tinue to do so, and was guilty of trespass in tearing the obstructions down. Strickland v. Woolworth, 3 Sup. Ct. (T. & C.) 286. ACTIONS FOR TOETS OR WRONGS. 457 Nuisance aflfecting real estate. An obstruction placed in a private road by the owner of the land over which it is laid out is not a public nuisance, and cannot be lawfully removed by one who has no right to use the road. Drake v. Rogers, 3 Hill, 60i. A palpable encroachment upon a public highway, to the serious interruption of the public use of it, is a public nuisance, and any one may abate it on his own motion, provided it does him a special in- jury in the way of hindering or obstructing his use of the road. Wet- more V. Tracy, 14 Wend, 250 ; Hart v. Mayor, ete., of Albany, 9 id. 571; Denning v. Roome, 6 id. 651. But it is a general rule, that a person is liable in damages for committing a wanton or un- necessary injury, even in abating a public nuisance. Northrop v. Bur- rows, 10 Abb. 365, 367. The kind of property constituting the nui- sance, and the attending circumstances, must be considered in deter- mining whether a wanton or unnecessary injury has been committed in removing it. lb. A power given to a municipal body to abate nuisances in any man- ner it may deem expedient is not unlimited, but such means only are authorized as are necessary for the public good ; and no wanton or un- necessary injury to the property or rights of individuals must be com- mitted. Bahcock v. City of Buffalo, 56 N. Y. 268. In the case of an occupied house, although it has itself become a nuisance, it may not be abated as such except under very extraordinary ciicumstances. Perry v. Fitzhowe, 8 Ad. & El. ( N. S. ) 757. And see Ely v. Super- visors of Niagara Co., 36 N. Y. 297. But an unoccupied house, which has become a nuisance to owners of adjoining property, may be abated by any person who is injured thereby. Harvey v. Devwody, 18 Ark. 252. When a nuisance consists in the use to which a building is put, and not in its location, the abatement must consist only in putting a stop to such use. Brightraan v. Inhahitants of Bristol, 65 Me. 426 ; S. C, 20 Am. Rep. 711. And no citizen has a right to abate a public nuisance, if such abatement involve a breach of the peace. Day v. Day, 4 Md. 262. As it regards the amount of damages recoverable in an action for a nuisance the general rule is, that the plaintiff's measure of damages is the loss actually sustained. Luther v. Winnisimmet Co., 9 Gush. 171 ; Keay v. New Orleans Canal Co., 7 La. Ann. 259 ; Thayer v. Brocks, 17 Ohio, 489. But if the nuisance be continued after a verdict at law establishing the nuisance, exemplary damages are warrantable to such an extent as will lead to the abatement of the nuisance. Soltau v. De Held, 9 Eng. L. & Eq. 104. And since one may not, with impunity, invade the premises of another simply because the damage may not be 58 458 ACTIONS FOR TOETS OR WRONGS. Penalties. appreciable, the law permits tlie recovery of nominal damages at least, as evidence of the plaintiff's right. Cory v. Silcox, 6 Ind. 39 ; Casa- ieer v. Howry, 55 Penn. St. 419. Where one maintains a nuisance upon his lands, which renders the premises of his neighbor disagreeable and uncomfortable, the proper measure of damages is the diflEerence in the rental value, free from the effects of the nuisance and subject to it. McKeon v. See, 4 Robt. 449 ; Chipman v. Palmer, 9 Hun, 517; 77 N. Y. 51 ; Jutte v. Hughes, 67 id. 267 ; Francis v. Schoellhopf, 53 id. 152. And evidence that, in consequence of the number of persons employed in the business creating the nuisance, the commercial and rental value of the injured premises is enhanced, is not proper in reduc- tion of damages. lb. Whenever a nuisance is of such a character that its continuance is necessarily an injury, and when it is of a permanent character that will continue without change from any cause but human labor, then the damage is an original damage and may be at once fully compensated. See 4 Act. and Def . 777 ; and the statute of linitations begins at once to run on an action for damages. Powers v. Council Bluffs, 45 Iowa, 652 ; S. C, 24 Am. Rep. 792. See Cumberland, etc., Corporation y. Hitch- ings, 65 Me. 140. The true rule of damages in an action on the case, brouglit by a reversioner on account of an injury done to the premises, is the amount of the injury done to the estate as a reversion. Dutro V. Wilson, 4 Ohio St. I'oi. § 8. Penalties. A justice of the peace has jurisdiction of a civil action for a fine or penalty not exceeding $200. Code of Civil Pro., § 2862. The practice and procedure in actions for penalties was, to a considerable extent, regulated and prescribed by the Revised Statutes of this State. 2 R. S. 480, part 3, chap. 8, title 6 ; 3 R. S. (5th ed.) 783 ; 2 Edm. St. 502. The provisions of these statutes were in force at the time of the enactment of the Code of Civil Procedure, sometimes called, to distinguish it from the present act, the Old Code. By section 471 of that act, the proceedings provided for by that part of the Revised Statutes above cited were declared unaffected by the system of procedure then adopted, " except that when, in consequence of any such proceeding, a civil action shall be brought, such action shall be conducted in conformity to this act, and except also, that where any particular provision of the titles and chapters enumerated in this sec ■ tion shall be plainly inconsistent with this act, such provision shall be deemed repealed." How far this section retained in force the provisions of the Revised Statutes specified therein has never been satisfactorily determined. See Morehouse v. Crilley, 8 How. 431 ; Abbott v. New ACTIONS FOE TOETS OE WEONGS. 459 Penalties. York Central c& Hudson liiver B. B. Co., 12 Abb. (E. S.) 465 ; Feople V. Ball, 10 Jones & Sp. 19, 20 ; People v. Bennett, 5 Abb. 384 ; 6 id. 343 ; Banh of Oenesee v. Patchin Bank, 13 N. Y. 309 ; Schoonmaker V. Brooks, 24 Him, 553. The provisions of the Eevised Statutes regulating or relating to ac- tions for penalties have been substantially re-enacted in the present Code of Civil Procedure, with such changes and amendments as were neces- sary to conform them to that system of practice. But the sections of the statute containing those provisions do not appear to have been ex- pressly repealed, nor, as a whole, do they seem to be so far inconsistent or repugnant to the provisions of the present Code as to be repealed by implication. The Code of Civil Procedure provides that " when a penalty or for- feiture is given by a statute to a person aggrieved by the act or omission of another, the person to whom it is given may, if it is pecuniary, maintain an action to recover the amount thereof ; or if it consists of the forfeiture of a chattel, he may maintain an action to recover the chattel or its value, as the case requires." Code Civil Proc, § 1893. " When a penalty or forfeiture is given by statute to any person who sues therefor, an action to recover it may be maintained by any person in his own name ; but the action cannot be compromised or settled with- out the leave of the court in which it is brought." Id., § 1894. " The summons in an action, brought as prescribed in the last sec- tion, can be served only by an officer authorized by law to collect an execution issued out of the same court. The summons, when issued, cannot be countermanded by the plaintiff before the service thereof ; and immediately after it is served, the officer who served it must file it, with his certificate of service, in the office of the clerk, or deliver it with a like certificate to the magistrate by whom it was issued, as the case requires." Id., § 1895. " In an action to recover a penalty or forfeiture given by a statute, brought by any person other than the person aggrieved or a public offi- cer, the plaintiff may recover notwithstanding the recovery of a judg- ment for or against the defendant, in an action brought therefor by an- other person, if he establishes that the former judgment was recovered collusively and fraudulently." Id., § 1896. " In an action to recover a penalty or forfeiture given by a statute, if a copy of the complaint is not delivered to the defendant with a copy of the summons, a general reference to the statute must be indorsed upon the copy of the summons so delivered, in the following form : ' According to the provisions of,' etc., adding such a description of the 460 ACTIONS FOE TOETS OE WEONGS. Penalties. Statute as will identify it with convenient certainty, and also specify- ing the section, if penalties or forfeitures are given in different sections thereof, for different acts or omissions." Id., § 1897. " Where a statute gives a pecuniary penalty or forfeiture not exceed- ing a specified sum, an action may be maintained to recover the sum specified ; and the court, jury, or referee by which or by whom the issues of fact are tried, or, where judgment is taken by default for fail- ure to appear or plead, the damages are ascertained, may award to the plaintiff the whole sum, or such part thereof as it or he deems pro- portionate to the offense." Id., § 1898. " Whenever, by the decision of the General Term of the Supreme Court, or of a Superior City Court, a construction is given to a statute, an act done in good faith, and in conformity to that construction, after the decision was made and before a reversal thereof by the Court of Appeals, is so far valid that the party doing it is not liable to the penalty or forfeiture for an act that was adjudged lawful by the decision of the court below. But this section does not control or affect the decision of the Court of Appeals upon an appeal actually taken before the reversal. Id., § 1961. " Where real or personal property has been forfeited or a penalty in- curred to the people of the State, or to an officer for their use, pur- suant to a provision of law, the attorney-general, or the district attorney of the county in which the action is triable, must bring an action to re- cover the property or penalty, in a court having jurisdiction thereof. When the Supreme Court and a justice's court have concurrent jurisdic- tion of the action, it may be brought in either, at the election of the attorney-general or district attorney. A recovery in such an action bars a recovery in any other action brought for the same cause." Id., § 1962. " Money recovered in such an action, which is not otherwise specially granted or appropriated by law, must, when collected, be paid into the treasury of the State." Id., § 1963. " Sections 1897 and 1898 of this act apply to an action brought as prescribed in the last two sections." Id., § 1964. An action brought to recover a penalty or forfeiture to the people of the State must be brought in the name of the people. See Code of Civil Proc, § 1984. The statute also provides for the payment or dis- position of moneys recovered in actions prosecuted by the district at- torney, for compensation to the prosecuting ofiicer, and security for the costs of the action. These matters, together with the pleadings, prac- tice and proceedings in these actions, will be considered in their proper ACTIONS FOR TORTS OR WRONGS. 461 Penalties. place, SO far as a separate discussion is deemed necessary. The provis- ions of the Revised Statutes in relations to actions for penalties, al- though not expressly repealed, seem to have been superseded by the Code of Civil Procedure and are here omitted. See 3 R. S. (5th ed.) 783, 784, 785, §§ 1-13. The instances in which penalties may be recovered in actions in jus- tices' courts are so numerous that it would be both a tedious and a dif- ficult task to enumerate them. This is of the less consequence, however, since there are some general principles which are equally applicable to all actions of that character. The statutes of the State have various provisions which give penalties in certain specified cases, and under particular circumstances therein stated. In most of them the action may be brought in a justice's court. Among other instances in which penalties are given are those relative to the excise laws, the laws relat- ing to higliways, roads, bridges, ferries, plankroads, turnpikes, etc. In some cases the penalty is given to the person or corporation injured by the act for which the penalty is given. In others, the penalty must be collected by some designated public officer. And again, in other instances, the penalty is given to any person who will sue therefor. Where a statute imposes a penalty, for the doing or not doing of an act, and gives that penalty in part to any person who will sue therefor, and the other part to the people, or to some charitable, literary, or other institution, and makes it recoverable by action, such actions are called qui tarn actions, because the plaintiff alleges in his complaint that he sues as well for the people, or for such charitable institution, as for him- self. An action for a statutory penalty or forfeiture, given to any such person or persons who will sue therefor, or an action to any of the peo- ple in general, is called z. popular action. Where a statute imposes a penalty upon any one violating its provisions, but enacts that no pro- ceeding for the recovery of such penalty shall be taken by any other person than " a party aggrieved," without the consent in writing of the attorney-general, or other specified person, a plaintiff suing without such consent will be required to show that his private interests have been affected by the act complained of, and that he has been " aggrieved " thereby specially, and not merely as one of the public. Boyce v. Higgins, 14 C.B.I. If a penal statute authorizes a penalty to be sued for by the party injured, any one of several parties jointly injured by the offense may sue for and recover the penalty. Phillips v. Bevans, 23 IS". J. L. 373. A penalty cannot be raised by implication, but must be expressly 462 ACTIONS FOE TOETS OE WEONGS. Penalties. created and imposed. Jones v. Estis, 2 Johns. 379 ; Bonnell v. Gris- wold, 80 N. Y. 128. The provisions of a statute, penal in its character, are to be strictly construed. lb.; Hintermister v. First Nat. Bank, 64 JST. Y. 212; Adams v. Scull, 2 IST. J. L. 741. The penalty cannot be raised or altered, neither made less nor increased by the court. lb. A penal statute, however, is not to be so strictly construed as to defeat the obvi- ous intention of the legislature in passing it. Gotheal v. Brouwer, 5 N. Y. 662. The words of the statute are not to be narrowed to the exclusion of cases which the words in their ordinary signification, or in that sense in which the legislature obviously used them, would com- prehend. United States v. Wiltberger, 5 Wheat. 76. And see Verona Central Cheese Co. v. Murtaugh, 50 IS". Y. 314 ; Wood v. Erie Rait- way Co., 72 id. 196; Cameron v. Seaman, 69 id. 396; S. C, 25 Am. Eep. 212 ; Dibble v. Hathaway, 11 Hun, 571. A statute giving a penalty for an injury for which an action lies at common law does not take away the common-law remedy by action, unless l)y express words or by unavoidable implication. Almy v. Harris, 6 Johns. 175; Scidmore v. Smith, 13 id. 322; WTieaton v. Hih- hard, 20 id. 290. And, under a penal statute, one penalty only is recoverable for one offense or entire transaction, and not a separate pen- alty for each particular act into which the offense may be divisible. Mayor, etc., of New York v. Ordrenan, 12 Johns. 122. The statute giving to the commissioners of pilots a penalty of $100 against any " person employing a person to act as pilot not holding a license," authorizes the recovery of but one penalty against a party who has employed an unlicensed pilot, although such employment was re- peated for numerous ships. Sturgis v. Spofford, 45 E'. Y. 446. So under the act to prevent extortion by railroad companies (Laws of 1857) chap. 1S5), only one penalty of $50, together with the excess of fare, can be recovered for all acts committed prior to the commencement of the action. Fisher v. N. Y. Central and Hudson River B. R. Co., 46 N. Y. 644. So where a statute contemplates one offense, in the commission of which two classes of offenders may be engaged, an offense by both is held to be one and entire, the penalty single, and the com- plaint against both as stating but one cause of action. People v. KoTJb, 3 Abb. Ot. App. 529; S. C, 3 Keyes, 236. A person can commit but one offense on the same day, by " exercis- ing his ordinary calling on Sunday," contrary to the statute. And, if a justice of the peace proceed to convict him for more than one penalty for the same day, it is an excess of jurisdiction for which an action will ACTIONS FOR TORTS OR WRONGS. 463 Penalties. lie against him before the convictions are qnashed or reversed. Creeps V. Durden, Cowp. 640 ; S. C, 1 Smith's Lead. Gas. 800 (5th Am. ed.); Brooiks V. Olencross, 2 Mood. & Rob. 62. Where the offense is one and entire in its nature, the penalty is also one and entire. And, where a statute provides that '' if any person shall willfully aid a tenant in car- rying away his goods," etc., " every person so offending " shall forfeit and pay a specified penalty, the offense is single ; and, although several persons join in committing the act, they are jointly liable for the one penalty. Warren v. Doolittle, 5 Cow. 6Y8 ; Conley v. Palmer, 2 N. T. 182 ; S. C, 4 Denio, 374. So, if a statute gives a penalty against "whoever shall" do certain specified acts, and two or more join in the commission of the prohibited act, a joint action may be main- tained against all who commit the act. Ingersoll v. Shinner, 1 Denio, 540. And under this rule, a single action for the penalty given by statute for selling liquors without license may be maintained against several persons who join in selling liquors without license. lb. Where a penalty is given for the commission of an act, in which several may join, a joint action may be maintained against all who join in its com- mission. Marsh v. Shute, 1 Denio, 230. But where a penalty is pre- scribed for an omission to perform a particular duty, which is enjoined upon a class of public officers, the offense is in its nature several or single, and each offender must be prosecuted separately. lb. Thus, where a statute imposes a penalty of $5.00 upon " every trustee " of a common school district, " who shall refuse or neglect to render an account of moneys received by them, or to pay over any balance in their hands," the penalty is imposed upon each defaulting trustee, and not upon all for the default of one ; and a joint judgment against all, for the act or omission of one trustee, cannot be maintained. lb. Under the provisions of the Revised Statutes (I R. S. 586, § 44), imposing a penalty of $10.00 upon every keeper of a toll-gate ordered by the inspectors to be thrown open, who shall not immedi- ately obey such order, the party aggrieved is not limited to one penalty, but may recover for each offense. Suydam v. Smith, 52 N. Y. 383. The person who first commences a qui tarn, or popular action, for a penalty given by statute, attaches a right in himself to the penalty, which cannot be divested by a prior recovery by a second prosecutor, who afterward commences an action. Beadleston v. Sprague, 6 Johns. 101. When a statute inflicts a penalty, and gives one moiety to the people, and the other to the person prosecuting for the same to effect, a payment of the judgment to the plaintiff is authorized, and discharges the defendant ; and the plaintiff may thereupon discharge the. judgment, 4G4 ACTIONS FOE TOETS OE WEONGS. Penalties. and lie is then a trustee for the people's moiety. Caswell v. Allen, 10 Johns, lis. But in a popular action the plaintiff cannot discharge the action, as to the people's moiety, without payment. Minton v. Wood- worth, 11 Johns. 474. A penalty for a violation of the statute to pre. vent horse-racing, which was incurred before the Ee vised Statutes took effect, is not affected by them, but may be sued for by a common in- former, though the action for subsequent penalties is given by those statutes to the overseers of the poor exclusively. Myers v. Van Al- styne, 10 Wend. 98. When a penalty is given to a party for the com- mission of an act which is an injury to him, and the penalty was given by way of satisfaction to him for such injury, his right of action for such penalty is not impaired by a repeal of the statute after his right of action has accrued. Palmer v. Gonley, 4 Denio, 374; S. C, 2 ]S^. Y. 182. It is a well-settled rule that the authority of an agent, however general it may be, if it is capable of being executed in a lawful manner, is never to be extended by construction to acts prohibited by law, so as to render his innocent principal liable in a criminal prosecution, or to an action for penalties. Cla,rh v. Metropolitam, Bank, 3 Duer, 241, 249. The case of husband and wife, however, is an exception to this rule ; for if the husband leaves his wife in charge of his business, he will be liable for penalties incurred by the wife during his absence. This was so held where a wife sold liquor without a license in the absence of her husband. Hasbroaok v. Weaver, 10 Johns. 247 ; Com. of Excise V. Keller, 20 IIow. 280. Or where she acted as the agent of her husband, who was a toll-gatherer on a plankroad, and she took unlawful toll from a traveler. Marsells v. Seaman, 21 Barb. 319. And see Attorney -General v. Riddle, 2Cromp. & Jerv. 493. In the case last cited, it was held to be a question of fact for the jury whether the wife had authority to do the acts for which it was claimed that a penalty had been incurred. Where the law gives a municipal corporation a charter which authorizes it to enact ordinances, and to declare penalties for a breach of them, and the corporation under the authority of such charter enacted ordinances prescribing penalties to be recovered by sucli cor- poration ; and a subsequent act of the legislature declared that every violation of such ordinances should be a criminal misdemeanor, this does not repeal the right to the action for penalties under the charter. Mayor, etc., of New York v. Hyatt, 3 E. D. Smith, 156. If the State law and the ordinance can stand together, the former does not repeal the latter, for there will not be a repeal of the right by implication, lb. A section of a statute, containing seven subdivisions, exempted seven different classes of persons from paying tolls on plank-roads, ACTIONS FOE TORTS OR WRONGS. 465 Penalties. and a subsequent section gave a penalty for falsely claiming any of the exemptions, and an amendatory act added an eighth subdivision, creating a new class of exemptions. After this amendment took ef- fect, it was held that a false claim of exemption, under the eighth sub- division, rendered the false claimant liable to the penalty. Dexter dh Lim&ricTc Plamhroad Co. v. AUen, 16 Barb. 15. Where a person is exempted from the payment of tolls when going to mill, and such per- son on passing a toll-gate on a plankroad says to the toll-gatherer that he is " going to miU," this amounts to a declaration that he claims to pass the gate without paying toU, on the ground that he is going to mill ; and in an action to recover the penalty given for a false repre- sentation in such cases, a jury will be authorized to consider this as a representation by the defendant that he was going to mill " for the purpose of getting his grinding done," and that the mill was one "where he ordinarily got his grinding done." lb. And, in such a case, if the defendant, under a pretense that he is going to mill, travels two miles and a half beyond the mill on such road, and then returns, without pay- ing toll, it is for the jury to say whether the representation made was not substantially false, although literally true. lb. Where the defendant traveled about one hundred rods upon a plank- road with his team, and then turned out of such road at a point one mile and twenty rods from a toll-gate thereon, for the purpose of avoid- ing the payment of the legal toll, and he then entered again upon such plankroad at a place one hundred and eighty rods beyond said toll-gate, and traveled four miles thereon, this was held to subject him to the penalty of $5.00 given by the statute. DansvilU, etc., Plankroad Co. V. Hvll, 27 Barb. 509. The statute which imposes a penalty of $25 upon every person who shall " forcibly or fraudulently " pass any gate on any turnpike or plankroad without having paid the legal toll is penal, imposing a penalty or forfeiture for the benefit or protection of a private corporation, and in derogation of common right, and it is not, therefore, to be extended, by construction, to cases within the mischief intended to be remedied, but which are not within the words of the statute. Bridgewater, etc., Plankroad Co. v. Rohbins, 22 Barb. 662. While in the construction of penal as of other statutes, the iptention of the legislation must govern, that intention must be collected from the words employed, and the words must receive an interpretation according to their plan and natural sense, or the sense in which they are ordinarily used, and, therefore, the words " forcibly or fraudulently," used in this statute, must be held to mean actual force or actual fraud, as distinguished from constructive force or fraud. lb. 59 466 ACTIONS FOE TOETS OE WEONGS. Penalties. And, where a defendant who was traveling upon a plankroad found a toll-gate open, through which he drove his team, and on being requested to pay toll, he declined, saying that he ought not pay toll because the road was bad, but that he would pay if a certain person named B. said he must ; and on another occasion he again passed through the gate, on finding it open, without paying any toll, although he was then told that B. said he must pay toll; but no efEort was made on either occasion, either by word or deed, to stop him from passing the gate, and tins was held not to amount to a forcible or fraudulent passing of the gate, so as to subject the defendant to the penalty. lb. ; Columbia Turnpike Co. V. Woodworth, 2 Caines, 97. So the penalty of $25 is not incurred by an individual who merely passes through a toll-gate with his team, and offers a bank bill in payment of the toll, and refuses to pay in any other way. Monterey, etc., Plankroad Co. v. Faulkner, 21 Barb. 212. To constitute a forcible passage of a gate, the passage must be effected by actual force, as by opening the gate, taking hold of it and keeping it open, or by some similar act, or at least by offering some violence to overcome, remove or prevent the obstacle presented by the gate to the passage. lb. So, to make a passage fraudulent, some artifice must be employed, or some deception practiced on the toll- gatherer for the purpose of effecting such passage. lb. Although a plankroad corporation has leased a part of its road under a contract that the lessee shall keep the road in repair in consideration of the receipt of the tolls, this will not prevent the corporation from bringing an action in its own name to collect the penalty given by law for forcibly or fraudulently passing a toll-gate on its road, even though such passing occurred at a gate occupied by the lessee of the road, Monterey, etc., Pladkroad Co. v. Chamberlain, 32 N. Y. 659 ' 33. id. 46. Before an action can be maintained for the recovery of $5.00 as a penalty for obstructing a public highway it must be proved that the place obstructed was a public highway at the time the act was done. Trustees, etc., of Jordan v. Otis, 37 Barb. 50. But see Chapman v. Gates, 46 id. 313 ; S. C. affirmed, 54 N. Y, 132 ; Little v. Deen. 34 id. 452 ; S. C, 1 Keyes, 235 ; 34 How. 68. As a general rule, a common informer cannot maintain an action for the recovery of a penalty, unless power is given to him for that purpose by the statute. Seward v. Beach, 29 Barb. 239, 242. And where a statute imposed a penalty of $20 for a violation of its provis- ions, and the money was given thus, " one-half to the complainant, and the other half to the county treasurer of a specified county, for the ACTIONS FOE TOETS OE WEONGS. 467 Trespass to property. benefit of the poor fund of said county," but without declaring who might sue or bring the action for such penalty — it was held that the person bringing an action to recover such penalty must show some authority for suing in his own name, or he could not recover, and that a common informer could not maintain the action. lb. In the case last cited, the plaintiff was neither the county treasurer nor the person for whose benefit the statute was enacted, and it was held that he had no interest in the penalty, and therefore could not maintain an action to recover it. Where a penalty is given for the benefit of persons upon whom a fraud is committed, an action therefor must be brought in their names. Thompson v. Howe, 46 Barb. 287. In an action to recover a penalty for selling "strong or spirituous" liquors without having a license therefor, it will be sufiicient to prove that the defendant sold " ale or strong beer," because those words are included in the terms " strong or spirituous liquors." Excise Commis- sioners V. Taylor, 19 How. 260 ; S. C, 21 N. T.173 ; Nevin v. Ladue, 3 Denio, 43, 437. The Peoples. Crilley, 20 Barb. 246, must be considered as overruled. It seems that any liquor is within the provisions of the statute, whether fermented or distilled, of which the human stomach can contain enough to produce intoxication. Excise Commissioners v. Taylor, 21 N. Y. 173. And see Jiait v. People, 63 id. 277. Under an ordinance of a municipal corporation forbidding both the sale of a thing, and its exposure to sale, a single act of selling cannot be separated so as to impose two penalties ; for, in the case of an actual sale, the exposure is necessarily included in the sale itself. City of Brook- lyn V. Toynbee, 31 Barb. 282. In an action against the master of a steamboat for the recovery of a penalty for navigating a river at a rate of speed forbidden by the statute, proof that the defendant was the master thereof, not only during the season, but on the particular day when the penalty was incurred, is sufiicient to throw upon him the burden of proving that he was not on board of the vessel and in charge of it on that day. People v. Roe, 1 Hill, 470. When a statute gives double the value of goods, by way of penalty, to be recovered in an action, the jury may find the value of goods b}'' their verdict, and the court may then double the amount in entering the judgment. Warre7i V. Doolittle, 5 Cow. 678. Double or treble damages may be waived, and an action brought for the recovery of single damages for the wrong. Dygert v. Scliench, 23 Wend. 446, 451. The verdict need not declare in terms that the value found is the single value, for that will be implied, unless the contrary appears. lb. § 9. Trespass to property. An action of trespass may be brought 468 ACTION'S FOR TORTS OR WRONGS. Trespass to property. for a wrongful injury to either real or personal property. And the subject will be discussed : first, as to the nature of property ; secondly, as to injuries to real property ; and thirdly, as to injuries to personal property. And first, then, as to the nature of property. Upon the general subject of property, it is sufficient to say that property is that right and interest in things which one man has to the exclusion of all others, including not only the right to possess and use, but also to dis- pose of them. And, with reference to the great divisions of property into real and personal, it may be said that those things are real which are permanent, fixed and immovable, or which cannot be carried out of their place, as lands and tenements. Things personal are goods, money, chattels, and all other movables ; and which may attend the owner's person wherever he thinks proper to go. Land comprehends all things of a permanent, substantial nature. Tenement is a word of still greater extent ; and though, in its common acceptation, it is only applied to houses and other buildings, yet in its original, proper and legal sense, it signifies every thing that can be held, provided it be of a permanent nature, whether it be of a substantial and sensible, or of an unsubstan- tial, ideal kind. Thus liberum tenementum, frank tenement, or freehold, is applicable not only to lands and other solid objects, but also to offices, rents, com- mons, and the hke. But a hereditament includes not only lands and tenements, but whatsoever may be inherited, be it corporeal or incorpo- real, real, personal or mixed. And it may be added, that with respect to the great subordinate classification of real property itself, that cor- poreal property consists of houses, lands, and every other visible, tan- gible and immovable property. Incorporeal property is a property which cannot be touched, and has no corpus y such as rights of common or rights of way, and other easements, and rigjits which, though they may be enjoyed in, upon, over, or relating to land or other corporeal property, yet, in consideration of law, constitute no right to the land itself. As a general rule, a building is treated in law as an integral or inseparable part of the land on which it stands. And where a house is built by one person upon the land of another, and partly with the ma- terials of that other, under an agreement, that, upon the payment of a specified sum by the builder, for the land and materials, the owner will convey the house and land to him, the building is not the personal estate of the builder, but the real estate of the owner of the land. Hutchins v. Shaw, 6 Gush, 58. And so if one man voluntarily erects buildings upon the la|ids of another, without any contract, they be- come part of |;h^ land, and thg builder has no right to remove them. ACTIONS FOE TOETS OE WEONGS. 469 Trespass to property. But, on the other hand, one man may own as personal property a house or building which he has erected upon the lands of another, where this is done by an agreement to that effect between the builder and the owner of the land ; and where there is an agreement tliat the building may be removed at any time, it is personal property, and be- longs to the builder. Sm.ith v. Benson, 1 Hill, 1T6. And see ante, Fix- tures. So, where rails are built into a fence by a tenant of a farm, under an agreement with the owner and landlord that he may remove them at the end of his term, the tenant is the owner of the rails as be- tween himself and the landlord. Mott v. Palmer, 1 N. Y. 564. Growing trees are presumed to belong to the owner of the soil or land on which they stand ; but they may, nevertheless, be the subject of a distinct ownership. Where a tree grows near a boundary line, so that its roots extend on each side of such line, the tree is wholly the property of the person on whose land the trunk stands. Dubois v. Beaver, 25 N. Y. 123 ; Griffin v. Bixby, 12 N. H. 464. When the boundary line divides the trunk, it belongs to the adjoining proprietors as tenants in common, lb. And where a line tree is destroyed by one of the adjoining pro- prietors, trespass lies by the other, whether his interest is several, or as tenant in common. lb. It is no objection to the recovery of single dam- ages merely, in such a case, that the complaint is framed with reference to a willful trespass, as provided by statute. lb. Where a tree stands upon the lands of A. the mere fact that the limbs of the tree extend over the lands of B. does not give the latter any right or title to any part of the tree, or to the fruit which may be growing thereon. In such a case the fruit growing upon such tree be- longs exclusively to A., who owns the tree. Hoffman v. Armstrong, 46 Barb. 337 ; S. C. affirmed, 48 K Y. 201 ; S. C, 8 Am. Rep. 537. Whether standing trees, which are owned apart from the land, con- stitute real or personal property is not entirely settled. If a grantee of lands cuts down and removes therefrom the trees be- longing to another, the owner of the trees may bring replevin in the eejpit against him. Warren v. Leland, 2 Barb. 614 ; ante, 279. Whether a sale of growing wood or trees is a sale of real estate may depend upon the terms of the sale ; as whether the wood is to stand any time, to be sustained and nourished by the soil. But trees cut down become personal property, and do not pass by a deed of the land ; and the purchaser of the land has no constructive possession of them, either as bailee or agent for the owner ; nor has he any special property in them which will sustain an action of trespass, in his name, against a 470 ACTIONS FOR TORTS OR WRONGS. Trespass to property. person who unlawfully removes them. Brock v. Smith, 14 Ark. 431. In this State the owner of a pew in a church has an exclusive right to its possession and enjoyment, for the purposes of public worship, not as an easement, but by virtue of an individual right of property ; and he may maintain an action of trespass against any one who unlawfully dis- turbs him in his possession. Shaw v. Beveridge, 3 Hill, 26 ; Fimt Baptist Church v. Withereil, 3 Paige, 296, 302. So, when a person rents a pew in a church, he may undoubtedly maintain an action against any one who unlawfully disturbs him in his possession thereof. lb. And see Cooper v. First Fresh. Church, etc., 32 Barb. 222. The title to per- sonal property, by accession, confusion or conversion, will be explained in the article relating to trover. The nature of property in animals, involving the right of action for injuries done to them, or for their conversion, is a subject of frequent litigation. With regard to animals which have in themselves a prin- ciple and power of motion, and which, unless particularly restrained or coniined, can convey themselves from one part of the world to another, there is a great difference made with respect to their several classes. They are distinguished or divided into such as are domitice, and such as are ferw naturas ; that is, some are of a tame, and others of a wild nature or disposition. In those which are of a tame and domestic na- ture, such as horses, cows, sheep, poultry and others of a similar nature, a man may have as absolute a property as in any inanimate beings ; because these continue perpetually in his occupation, and will not stray from his house or person, unless by fraudulent enticement, in either of which cases the owner does not lose his property. The stealing, or forcible abduction of such property as this, is also a criminal ofEense, for these are things of intrinsic value, serving for the food of man, or else for the uses of husbandry. But in animals feroe naturce, a man can have no absolute property. Other animals that are not of a tame and domestic nature are either not the objects of property at all, or else they fall imder another division, namely, that of a qualified, lim- ited, or special property. A qualified property may subsist in animals fercB naturm per industriam hominis / that is, a man may reclaim animals of a wild nature, and make them tame by art, industry and edu- cation ; or he may confine them within his own immediate power, so that they c*annot escape and use their natural liberty. The most obvi- ous distinction which the law regards is that between such animals as are generally seen tame, and such as are therefore seldom, if ever, found wandering at large, and such as are usually found wild and at liberty. Deer in a park, doves in a dove-house, and fish in a private pond or ACTIONS FOR TORTS OR WRONGS. 471 Trespass to property. tank are no longer the property of a man than while they continue in his actual keeping or possession, unless they have a^iimum revertendi which is only to be known by their usual custom of returning. But if a deer, or any other wild animal which is reclaimed, has a collar or other mark put upon him, and it goes and returns at its pleasure, or if a wild swan or goose is taken and marked, and turned loose in a river, the owner's property in it still continues. And where wild geese were caught and rendered so tame as to eat out of the owner's hand, they were held to be his property, although they had strayed away twice, and did not re- turn until brought back. Armory v. Flyn, 10 Johns. 102. In the last case cited it appeared that after the geese had left the plaintiff's premises, the defendant's son was seen chasing them with dogs, with a knowledge that they belonged to the plaintiff, and the geese were after- ward taken by two men and pledged to the defendant for liquor fur- nished by him to these men, and the defendant afterward refused to redeliver the geese to the owner on demand, unless he paid the liquor bill, and this was held to be a conversion which entitled the owner to maintain an action. The true point of inquiry in such cases is, whether the reclaimed animal has lost all intention or disposition of returning ; and if it has, it may then be said to have regained its natural liberty. A qualified property may also subsist with relation to wild animals by reason of their inability to remove from the land where they are, as in the case of young birds which are hatched in nests on a man's trees. There are instances in which one person may acquire title to a wild animal, even as against another party on whose land it was taken. Thus, where the plaintiff had hunted a hare, which was started on the lands of a third person, and then ran upon the lands of the defendant where it was seized by the plaintiff's dogs, when the defendant took it from the dogs and refused to deliver it to the plaintiff on his demand, it was held that the plaintiff was the owner and could maintain trespass for the taking. Churchward v. Studdy, 14 East, 249. But, in such cases, it is essential to a title to the property, and consequently to a right of action for taking the animal, that it should be actually within the con- trol of the plaintiff at tlie time of the taking. Bunter v. Newkirh, 20 Johns. 75. And, where the plaintiff with his dogs found and started a fox which he pursued and was nearly on the point of captur- ing, when the defendant, in sight of the plaintiff, killed the fox and carried it away, it was held thattlie plaintiff's prior pursuit did not vest him with the title to the property. Pierson v. Post, 3 Gaines, 175. So, where the plaintiff was engaged in fishing, and he had nearly en- 472 ACTIONS FOE TOETS OE WEONGS. Trespass upon real estate. compassed the fish with a net, but the defendant by rowing his boat to the opening disturbed the fish and prevented the capture, it was held that no action could be maintained because it was impossible to say that the plaintiff had any actual power over the fish, though it ap- peared that he would have had possession of them but for the acts of the defendant. Youngs v. Eichens, 6 Ad. & El. (N. S.) 606. An unreclaimed or wild swarm of bees, like other wild animals, belongs to the first occupant, or in other words, to the person who first hives them ; but if a swarm flies from the hive of the owner to the lands of another, the qualified property in them continues as long as he can keep them in sight and possesses the power to pursue and iden- tify them. Qof v. Kilts, 15 Wend. 550. "Where a swarm of bees belonging to the plaintiff left his hive and lands and went into a tree on the lands of a person other than those of the defendant, who then cut down the tree, killed the bees, and took away the honey, it was held that he was Hable in an action of trespass brought by the owner of the bees. lb. Until the bees have been hived and reclaimed, they belong to the owner of the lands upon which they are found ; and a person who finds a swarm of bees in a tree upon the lands of another person does not acquire any title to them by merely marking the tree with the initials of his name ; nor can such finder maintain trespass against an- other person who cuts down the tree and carries away the bees. OiUet V. Mason, 7 Johns. IG ; Ferguson v. Miller, 1 Cow. 243. § 10. Trespass upon real estate. As a general rule it may be said that for every injury to real estate an action of trespass lies in favor of the person lawfully in the possession of such lands. But there is a restriction upon the right of bringing that action in any place in which the plaintiff may choose to sue. No action can be maintained in the courts of this State for injuries arising from a trespass committed upon lands which are situated in another State. Watts v. Kinney, 6 Hill, 82 ; S. C, 23 Wend. 484 ; American Union Tel. Co. v. Mid- dleton, 80 N. Y. 408 ; Hurd v. Miller, 2 Hilt. 540. And the objec- tion may be taken by way of a motion for a nonsuit at the trial. lb. As a general rule, actions of trespass for injuries to real estate are local ; and in actions in the Supreme Court, they must usually be brought in the county in which the land lies ; yet, in a justice's court, such an action may be brought in a different county from that in which the land lies. Orames v. McKeon, 2 Denio, 639 ; S. C, 3 id. 610. And see Bogert v. Eadght, 20 Barb. 252. Trespass to realty consists in a wrongful and unwarrantable entry ACTIONS FOR TORTS OR WRONGS. 473 Trespass upon real estate. upon the soil or land of another, which the law entitles or denominates a trespass by " breaking his close y" these words being derived from the form of the writ of trespass anciently in force, commanding the de- fendant to show cause quare clausum fregit, or, in other words, to show wherefore he hrohe the plaintiff^ s close. The true meaning and significance of this word "clausum" is clearly explained as follows: Every man's land is, in the eye of tlie law, inclosed and set apart from his neighbor's ; and that, either by a visible and material fence, as one field is divided from another by a hedge, ditch, or fence, or by an ideal invisible boundary existing only in contemplation of law, as where one man's land adjoins another's in the same field. Any entry upon a man's close, or any breach of it, if unauthorized by him and unjustified by law, carries necessarily with it some damage. Entiok v. Ca/r-ring- ton, 2 Wils. 275, 291 ; Pierce v. Uosmer, 66 Barb. 345. So that proof of the alleged trespass will, without any proof of dam- age sustained, entitle the plaintiff to a verdict ; and the reason and justice of this rule is quite evident. For the vindication in every legal right there is a remedy ; when, therefore, there has been a violation of a right, the person injured is entitled to an action, and consequently to at least nominal damages. Such damages being given in order to vindicate the right which has been invaded, and such further or special damages being awarded as may be proper to remunerate and compen- sate the plaintiff for any specific damage which he has sustained. It is on this principle that a person may support an action of trespass for an unauthorized entry on his land, although he shows no actual specific damage to have accrued to him ; nay, even though the defendant shows that the act in question was positively beneficial to the plaintiff. Parker v. Griswold, 17 Conn. 288. Every unauthorized or unlawful entry upon the lands of another is a trespass, and whether the owner suffers much or little, he is entitled to a verdict for some damages. Dixon v. Clow, 24 Wend. 188 ; Shannon v. Burr, 1 Hilt. 39 ; Pierce v. Uosmer, ^^ Barb. 345. Where a person with a crowd of others enters the premises of another, knowing that the admission thereto had been ob- tained only by an act of violence by another, he enters willfully, and is liable as a trespasser. Chandler v. Egan, 28 How. 98. And it makes no difference as to the character of the offense that the land upon which the wrongful entry is made is covered with water. Smith v. Ingram^, 7 Ired. (N. C.) 175. It is not necessary that the person committing a trespass upon the lands of another should go on such lands in order to be guilty of a trespass ; for if a person blasts rocks at a place where he had a lawful right so to do, yet, if he conducts the business 60 474 ACTIONS FOIi TOUTS OR WRONGS. Trespass upon real estate. in such a manner tliat some of the fragments of rock are thrown upon the lands of liis neighbor to the injury of his buildings, this will be a trespass, although there was no negligence or want of skill in doing the work. Hay v. Cohoes Company, 2 N. Y. 159; Tremavn v. Cohoes Co., id. 163. The casting of stone and earth by means of a blast from the bed of the canal upon the lands of an adjoining proprietor by a contractor with the State, engaged in the work of the Erie canal enlargement, was Iield to be a trespass ; and although the work was done without negligence, the contractor was held liable for the resulting damage. St. Peter Y. Dennison, 58 N. Y. 416 ; S. C, 17 Am. Eep. 258. And in case of an intrusion upon private property there is no presump- tion of lawful authority arising from the commission of the act, simply because done or directed by a municipal corporation having general powers in respect to acts of the kind in question. Bradt V. City of Albany, 5 ITun, 591. Where the defendant's stallion injured the plaintiff's mare by bit- ing and kicking her through the fence separating the plaintiff's land from the defendant's, he was held liable in trespass apart from any question of negligence on the part of the defendant. Ellis v. Loftus Iron Co., L. R., 10 C. P. 10 ; S. C, 11 Eng. Eep. 214. So, where A. by permission of B. put timber into a ditch which divided their lands, to prevent a ditch on his own land from filling up, and B. afterward took the timber out of his half of the ditch, whereby sand was washed down and stopped up A.'s ditch, causing his land to be overflown, it was held that an action of trespass would lie therefor. Hogivood V. Edwards, Phill. (N. C.) 350. Where a person entered the cellar of another in the day-time, against the protest of the owner's daughter, and drew from a bar- rel therein some cider, which he drank, it was held that, in the absence of the circumstances which usually accompany a felonious taking, it constituted a trespass. McCourt v. People, 64 N. Y. 583. So, a person cannot, without permission, lawfully go upon his neigh- bor's land from which surface water runs upon his own, in order to divert the water from his land ; and this is so, although the water is likely to undermine the wall of his house, and the owner of the adjoining house, after being notified, has neglected to do any thing to prevent the apprehended injury. Grant v. Allen, 41 Conn. 156. And the fact that one is pursuing animals ferm natures and dangerous to mankind will not justify his trespass upon the land of another. Glenn v. Kays, 1 111. App. 479. ACTIONS FOR TORTS OR WRONGS. 475 Possession. Where a person intentionally throws clubs, sticks, stones or other missiles upon the land of another, he would clearly be guilty of a trespass; and where the act was done from a wrongful or vmlaw- ful motive, the damages ought not to be merely nominal. There are instances, however, in which it is not a trespass to place articles upon the land of another without his consent, or even against his will. Where a line fence is to be built or maintained upon the line between two adjoining land-owners, it is a settled rule of law in this State that either party may build a rail fence, some times called a crooked or Virginia fence; and although, in such cases, the comers of the fence may project so as to extend some three feet or more over and beyond the precise or mathematical line of division, this will not be a trespass. Ferris v. Yan Busldrl; 18 Barb. 297. Possession. The action of trespass for a breach of the plaintiff's close is founded upon an actual possession thereof by him. A per- son in possession of land can recover in trespass against a mere wrong- doer irrespective of any question of ownership of the fee, to the extent of the injury to his possession. Even if he shows no sub- stantial damage, he is entitled to nominal damages; and if the tres- pass was intentional and deliberate, to exemplary damages. Sefley V. Baker, 19 Kans. 9. The personal residence of the plaintiff on the land need not be shown to entitle him to maintain trespass. Cultivation or fencing is enough, or, if the land is unimproved and unoccupied, possession will be implied from the legal title. Yorgen- sen V. Torgenseoi, 6 JSfeb. 383. See Edwards v. Noyes, 65 N. Y. 125 ; Grout v. Knapp, 40 Vt. 163 ; Griffin v. Greppin^ 60 Me. 270 ; 6 Act. and Def . 64, 65. But, in order to enable the assignee of a lease to maintain an action for a trespass on the leasehold prem- ises, he must have taken actual possession of them. Harrison v. Blackhurn, 17 C. B. (N. S.) 678. As a general rule, the plaintiff, to maintain this action, must be in possession himself, or by his servant or agent. If the owner of land is out of possession, as where he has demised it to a tenant, an action of trespass for an entry upon such land will not lie at his suit, because the tenant in possession is the party aggrieved, and he is the person, therefore, who is entitled by law to maintain the action. It is not to be un- derstood, however, that a landlord is not entitled to maintain an action under any circumstances for any injury to his real estate, although it may be in the possession of another at the time of the injury ; for there are instances in which an action of trespass will lie by statute for an injury to the reversioner. Van Deusen v. 476 ACTIONS FOR TORTS OR WRONGS. Possession. Towng, 29 Barb. 9 ; S. C, 29 N. Y. 9 ; 3 R. S. (5th ed.) 39. But whoa land is not in the actual possession of the owner, and is oo cupied by tenants or lessees at the time of the trespass, the owner can recover only for injuries to the inheritance. Wood v. City of Williamshurgh, 46 Barb. 601. The Code of Civil Procedure provides that "a person seized of an estate in remainder or reversion may maintain an action founded upon an injury done to the inheritance, notwithstanding any intervening estate for life or for years." Code Civil Procedure, § 1666. And independently of any statute, an action on the case will lie by a remainderman or reversioner for a per- manent injury to real estate, although it may have been in the pos- session of another at the time when the injury was done. Cox v. Olue, 5 Man., Grang. «fe Scott, 533 ; Bay v. Ayers, 5 Duer, 494 ; Oxford V. EcdUtt, 14 East, 489. But possession is necessary to the maintenance of an action of tres- pass for a breach of the plaintiff's close. And the party in possession of the land will make a, prima facie case sufficient to entitle him to a ver- dict by proof of such possession in himself, and of an entry by the de- fendant. This is, of course, equivalent to saying that an entry upon the land of another is prima facie tortious, so as to cast upon the de- fendant the necessity of showing title in himself or some third person, and proving authority from that person to enter upon the land in question. It is not only true, as a general rule, that actual possession is neces- sary to maintain an action for a tort or wrong to real or personal estate, but it is equally true that possession alone is sufficient to maintain an action against a mere wrong-doer or trespasser. Althause v. Rice, 4 E. D. Smith, 347 ; Smith v. Milles, 1 Term R. 480 ; Gotirdier v. Cormach, 2 E. D. Smith, 200 ; Hoyt v. Qelston, 13 Johns. 141 ; Hurd v. West, 7 Cow. 752 ; Orser v. Storms, 9 id. 687. Actual possession, how- ever, is not in aU cases necessary, for when the plaintiff is the owner of the property injured, and is entitled to the immediate possession of it he may maintain an action of trespass for the injury done. Aikvn v. Buch, 1 Wend. 466 ; Putnam v. Wyley, 8 Johns. 432. But where one is in actual possession of land, whether he has title to it or not, he may maintain an action for a trespass upon it against any other person than the real owner or other person who has a right of possession, particularly in those cases in which the plaintiffs possession is peaceable and exclusive. Palmer v. Eldridge, 16 Barb. 131 ; Jack- son V. Hazen, 2 Johns. 22 ; JacTcsmi v. Ha/rder, 4 id. 203, 211. A mere trespasser cannot put at issue the title of the person who is in pos- ACTIONS FOR TOETS OE WEONGS. 477 PosBesaion. session, as owner, of the property trespassed upon. Hebert v. Lege, 29 La. Ann. 511. Where a person was in the possession of lands at the time when an injury was done, or a trespass was committed upon them, he may maintain an action of trespass for the injury, although out of possession at the time of bringing the action. Smith v. Ingrain, 7 Ired. 175. What is such a possession of lands as will sustain an action of trespass is not always easy to determine. The payment of taxes on land, and the execution of partition deeds, are not evidence of an actual posses- sion, though they may show a claim of title. Jackson v. Myers, 3 Johns. 388. So merely clearing out a fishing place in a public river does not give an exclusive right of fishing to the person who did the clearing. WestfallY. Fan ^nfe?*, 12 Johns. 425. But where oysters are planted by an individual in a bed clearly marked out and defined in the tide waters of a bay or arm of the sea, which is a common fishery to all the inhabitants of the State where the bay or arm of the sea is situated, and where there were no oysters growing spontaneously at the time, they are the property of the person who plants them, and the taking of them by another person is a trespass for which an action lies. Lowndes v. Dickerson, 34 Barb. 586 ; Decker v. Fisher, 4 id. 592 ; Fleet V. Hegeman, 14 Wend. 42. The owner of the soil in flat lands adjoining the shore of a navigable stream, over which the tide ebbs and flows, may maintain an action of trespass against one who, with- out his consent, enters upon and uses the same for flshing purposes, driving stakes therein, and mooring his boats there, and occupying the soil in drawing in seines and nets, so as to interfere with the rights of the plaintiff therein. Whittaker v. Burhcms, 62 Barb. 237. The keeping of a pier, biult into or adjacent to navigable waters, is likened to the keeping of an inn ; and a general license is given to all persons to occupy it for lawful and accustomed purposes. Swords v. Edga/r, 59 N. Y. 28 ; S. C, 17 Am. Eep. 295. A person who holds himself out to the public as a warehouseman and wharfinger extends a license to all persons to enter upon his prem- ises if they have occasion to transact such business. Bogert v. Hcdght, 20 Barb. 251. But his employment is merely a private one ; and he is under no legal obligation to permit every person who applies to use his wharf or warehouse, even though he has suitable accommodations, and though a reasonable compensation is offered to him for such use. lb. He may limit any general license which he may have given, or may ter- minate it as to any particular individual, by giving him notice not to come upon the premises; and after such notice is given, an entry 478 ACTIONS FOE TORTS OR WRONGS. Possession. thereon by such person will be a trespass ; for the possession of the premises by the plaintiff, in such a case, is sufficient evidence of his right to bring and maintain an action. lb. So in an action of trespass by a plankroad company against a defendant for wrongfully taking and removing the planks and grading from the road, it v^ill be sufficient to prove that the road vi^as duly incorporated and organized in accord- ance with the statute; that the road has been built, and that it has been inspected, that toll-gates have been erected thereon, and that the com- pany is in the actual use, occupation and enjoyment of the road, unless such defendant can show a better right to the road. Ellicottville, etc., Plankroad Go. v. Buffalo, etc., R. R. Co., 20 Barb. 644; Laws of 185.5, chap. 485. For injuries done to the inheritance by a stranger, when the actual pos- sessor has no interest in them beyond the mere entry, the action should be brought by the reversioner. Smith v. Felt, 50 Barb. 612 ; S. C, 51 N. Y. 642. But, as a general rule, the law does not give a right of action to an owner of land, who is out of possession, for injuries com- mitted to the land while he was so out of possession ; and the rule has not been changed by the Code. Frost v. Duncan, 19 Barb. 560 ; Schermerhorn v. Buell, 4 Denio, 422, 424. And although the owner of the land, who is not in possession, may maintain an action for the recovery of the value of trees which had previously been severed from the freehold, if the action is brought against a person who did not sever them, yet, where the action is brought against a person who is in the actual possession of the land, claiming to own it under a deed, and the complaint alleges that the defendant wrongfully entered upon the plaintiff's land, and felled the trees and timber standing thereon, and burned the same into coal, and converted the coal to his own use, the two causes of action are improperly joined, and the plaintiff cannot recover. lb. Where a plaintiff proved that the lot on which the tres- pass was committed had been used as the wood lot of the farm on which he lived for about twenty years ; that during all that time the plaintiff and his father, under whom he claimed title, had cut their fire wood, saw logs and rail timber on the lot, and had also made maple sugar thereon, and had a house thereon for that purpose ; that it was the only wood lot the plaintiff had, and had been used as such for twenty years ; and that it was not fenced, nor was there any clearing upon it ; this was held to be sufficient evidence of actual possession to maintain the action. Machin v. Geortner, 14 Wend. 239. Improvements made on land, or the use of it for a long time for fuel and fencing materials, constitute a sufficient possession to enable ACTIONS FOR TORTS OR WRONGS. 479 Possession. a person to maintain trespass for encroachments. MoLean v. Farden, 61 111. 106 ; Rogan v. Perry, 6 "Wis. 194. And when a person occu- pies and improves, under a deed, a tract of land, a portion of which is inclosed, he is deemed in possession of the whole, especially if he makes a notorious claim to the whole; and if one, without color of title, en- ters upon any part of the tract, and cuts and sells wood therefrom, he will be a trespasser and not a disseizor. Oent v. Lynch, 23 Md. 58 ; Welch V. Louis, 31 111. 446 ; Kinoaid v. Logue, 7 Mo. 167 ; Swift v. 6^agre, 26yt. 224; Hunt v. Rick, 38 Me. 195. Where a plaintiff sues for a trespass upon wild and uncultivated lands, which are not in the actual possession of any person, he must necessarily show his title, and thus make out a constructive possession, or fail in his action. Sui- bell Y. Rochester, 8 Cow. 115; Main v. Gooper, 26 Barb, 408; S. C, 25 N. Y. 180, 184. But, in such a case, tlie defendant may de- feat the action by expressly disputing the plaintiff's title, and asking for a dismissal of the complaint, on the ground that the title to real estate is in question on the plaintiff's own showing. lb. So, too, the defendant may object to the introduction of the deeds of the plaintiff as evidence of his title, for the pui-pose of showing a constructive pos- session, and the objection will be valid, lb. Bat, if the defendant ad- mits the evidence of title by expressly consenting to its introduction, or if he impliedly admits it by not objecting to it, and then neglects or refuses to dispute the plaintiff's title, or to ask for a dismissal of the action, because the title to land is in question on the plaintiff's own showing, the proof will be legal, and a judgment in favor of the plaint- iff, upon such evidence of possession, will be valid. lb.; Koon v. Mazuzan, 6 Hill, 45; Bellows v. Sackett, 15 Barb. 97; Brown v. Scofield, 8 id. 239 ; Main v. Gooper, 25 N. Y. 180, 184. When a public highway runs through a man's lands, the fee of the land over which the road passes belongs to him as much as that of any other portion of the lands. And the law will not presume a grant of a greater interest or easement than is essential to the enjoyment of the public easement; the rest is a parcel of the close. Wager v. Troy Union R. R. Go., 25 N. Y. 526 ; Strickland v. Woolworth, 3 Sup. Ct. (T. & C.) 286. The fact that the highway is fenced on each side is merely for the convenience of the land-owner, and it has no necessary connection with the road. Gidney v. Earl, 12 Wend. 98, 99. The title of the owner, subject to the easement, remains perfect, not only as to the land covered by the highway, but also as to all the material within its bound- aries, except such as may be needed to build or maintain the road. 480 ACTIONS FOR TOETS OR WRONGS. Possession. Higgins v. EeynoUs, 31 N. T. 151 ; GoU v. Drew, 44 Yt. 49 ; S. C, 8 Am. Rep. 363. And such owner may maintain trespass against an individual not acting under statutory or official authority, who takes and carries away soil from the highway ; Oidmey v. Earl, 12 Wend. 98 ; or who destroys or removes the trees or shrubs standing or growing in the highway, unless they constitute an obstruction, hindrance or an- noyance to travelers. Phifer v. Cox, 21 Ohio St. 248; S. C, 8 Am. Rep. 58. So an action of trespass will lie in favor of the owner of lands adjoining a highway if a person erects a stall, or places a table or booth or other object or thing on the lands on the side of such high- way without the owner's permission. Mayor, etc., v. Wa/rd, 1 Wils. V)l\ Mayor, etc., v. Swann, 2 W. Bla. 1116. Where land is dedicated to the public for a highway or street, the public acquire nothing beyond the mere right of passing and repassing upon the highway, and in all other respects the rights of the original owner remain unimpaired ; and he may maintain an action of trespass against any person who enters upon the highway and uses it for any purpose other than that for which it was dedicated. Williams v. N. Y. Cent. R. R. Co., 16 N. T. 97, 108. The owner of a village lot which is bounded by a public street is presumptively the owner of the land to the center of the street. Adams v. Rivers, 11 Barb. 390, 393 ; Adams v. Saratoga R. R. Co., id. 414. And, therefore, when a person stops on a side- walk in front of a man's dwelling, and remains there using abusive and insulting language to the owner, instead of passing along the walk or street for the mere purpose of passage, he is a trespasser. lb. So of a strolling musician who stops in front of a person's house and there sings obscene songs, or plays tunes which are usually sung to such songs. lb. An executor or administrator may maintain an action of trespass for an injury or trespass committed on the land of the testator or intestate in his life-time, or for wrongfully taking and carrying away the goods or chattels of such testator or intestate while living. Rockwell v. Saunders, 19 Barb. 473, 481 ; 3.R. S. (5th ed.) 746, § 1. Commis- sioners of highways cannot, by virtue of their office, bring actions in their own names to recover damages against individuals or corporations for illegally entering upon, and taking possession of, the public high- ways or bridges of their town. Comdl v. Town of Guilford, 1 Deiiio, 510. Nor can the electors of a town at a meeting, by resolution or otherwise, authorize such an action in their names for such inju- ries, lb. A person who is in possession of land, under and by virtue of a written contract with the owner in fee for the purchase thereof, is ACTIONS FOE TORTS OR WRONGS. 481 Possession. deemed the equitable owner of the premises, and he may maintain an action to recover the damages which result from unlawfully and negli- gently setting fire to the woods and fences. Rood v. N. Y. ds Erie JR. B. Co., 18 Barb. 80 ; Hayes v. Miller, 6 Hun, 320 ; S. 0. af- firmed, 70 N. Y. 112. He may maintain trespass against the subse- quent vendee of the owner of the legal title. White v. Livingston, 10 Gush. 259, or against a stranger, notwithstanding that he has not per- formed, or has violated the conditions of his contract. White v. Guirons, Minor, 331. So the obligee in a bond of conveyance may maintain trespass against the obligor before he has paid the balance of the purchase-money, or received his deed. Smith v. Price, 42 111. 399. The trustees de facto of a religious society, whether it is an in- corporated society or not, may maintain an action against a trespasser for an injury done by him to the meeting-house of the society. Green V. Cady, 9 Wend. 414 ; People v. Runkle, 9 Johns. 147. And the exclusive right to the possession and enjoyment of a church pew, or of a lot in a cemetery, is snflicient to enable the owner to maintain tres- pass for a violation of the right. MoNabh v. Pond, 4 Bradf . 7 ; Wood- worth V. Payne, 5 Hun, 551 ; S. C. affirmed, 74 N. T. 196 ; Meagher v. Driscoll, 99 Mass. 281. The fact that a married woman owns the land upon which stands the house in which her husband resides with his family is not necessarily inconsistent with his having such a possession of the house as will entitle him to maintain trespass against one forcibly entering it. Alexander v. Hard, 64 IST. Y. 228. Any person who has an exclusive right in the soil, as in the case of one who owns a growing crop of grass or grain, with a right to have it remain therein until it attains its full growth and maturity, and until it is cut and carried away by the owner, has such an interest in the land that he may maintain an action of trespass for a breach of his close, against a wrong-doer who enters upon the land and cuts and carries away the crops. Austin v. Sawyer, 9 Cow. 39 ; Stewart v. Doughty, 9 Johns. 108 ; Crosby v. Wadsworth, 6 East, 602. And the rule is the same when the owner of the crop is to remove it immedi- ately. Parker v. Staniland, 11 East, 362. Where grain is sown on land upon shares, and the person sowing it assigns his interest in the growing crop to a third person, an action for an injury to such crop cannot be maintained in the name of the assignor ; but it must be brought in the name of the assignee. Oa'rier v. Jarvis, 9 Johns. 143 ; Code of Civil Procedure, § 449. One in possession of a farm under an agreement with the owner to work it on shares for a Gl 482 ACTIONS FOR TORTS OR WRONGS. Possession. single crop cannot maintain an action of trespass against another for entering and brealcing the close. Decker v. Decker, 17 Hnn, 13. An agreement to allow one to work land on shares for a single crop is not a lease of the land, but creates a tenancy in common of the crop. The parties to the agreement acquire a joint property in the growing crop, and may unite in an action of trespass de bonis for cutting and carry- ing it away while the owner of the land alone can bring trespass for breaking the close. Harris v. Frink, 49 N". Y. 24 ; S. C, 10 Am. Rep. 318. See Taylor v. Bradley, 39 TST. Y. 129 ; S. C, 4 Abb. Ct. App. 363. Where two persons are tenants in common of a house and lot, and one of the tenants gives a third person permission to occupy a part of the premises, the other tenant will be a trespasser if he turns such third person out of possession, because the possession is joint, and neither of the tenants can take exclusive possession, nor turn out one who has lawful possession. McOarrell v. Murphy, 1 Hilt. 132 ; Mumford v. Drown, 1 Wend. 52. And where a tenancy has terminated by the ex- piration of the term, or by non-payment of rent, or by an agreement to surrender the premises, the landlord has no right to enter by force and put the family and the goods of the tenant out of the demised premises by force, without process. Flaherty v. Andrews, 2 E. D. Smith, 529. One tenant in common has no right to oust or debar his co-tenants from joint possession with him. But if such co-tenants, after over- coming such attempt to oust them, and regaining possession, lay hands upon their co-tenant, and remove him by force from the common property, they are liable for an assault and battery. Wood v. Phillips, 43 E". Y. (4 Hand) 152 ; reversing S. C, 1 Lans. 421. See 6 Act. and Def. 81. A person in possession of real property as guardian or trustee for an infant, or having an estate determinable upon one or more lives, wlio holds over and continues in possession after the determination of his trust or particular estate, without the express consent of the person then immediately entitled, is a trespasser. Code of Civil Procedure, § 1664. If any person cuts down or carries ofE any wood, underwood, tree or timber, or girdles or otherwise despoils a tree on the latid of another without the owner's leave ; or on the common or other land of the city, village or town, without having right or privilege in those lands, or license from the proper officer, an action may be maintained against him by the owner, city, village or town ; and in such action the plaint- ACTIONS FOE TOETS OE WEONGS. 483 License. iff may claim and recover treble damages, unless the injurj was casual and involnntary, or committed when the defendant had probable cause to believe that the land was his own, or unless tlie defendant pleads and establishes that the injury was committed by taking timber for the purpose of making or repairing a public road or public bridge, or by taking any wood, underwood, or tree for a like purpose by authority of a commissioner or overseer of highways, in either of which cases he is entitled to recover single damages only. See Code of Civil Procedure, §§ 1667, 1668. The entry upon the lands of another, and the removal of timber wrongfully cut thereon, though the entry and removal be by an innocent purchaser of the timber, is a trespass. Hazelton v. Week, 49 Wis. 661 ; S. C, 35 Am. Eep. 796. § 11. License. Where the owner of property gives his consent that an act may be done in relation to it, that act will not be a trespass. And in one case the court used the following language : ■ ' "We all con- cur in saying, that if the jury should find, from the evidence, that the plaintiff actually consented to the acts of which he now complains as a trespass upon his premises, he is not entitled to recover from the defendant. A license is always a sufficient justification of a tres- pass, and the books are full of pleadings and precedents in which it is treated as a complete defense. And we are equally clear that a license, not being required to be in writing, it may be proved like any other similar fact, by showing express words or license, or by proof of the acts of the parties, and other circumstances, from which the jury may infer that the plaintiff consented to the alleged trespasses." Walter Y. Post, 6 Duer, 363, 370. Where the owner of land authorizes an- other person to dig and draw away gravel, sand and earth from his land, this will bar him from recovering damages for the act as a tres- pass. Syron v. Blakeman, 22 Barb. 326. When a parol license is given to cut and carry away standing trees and timber, it will, if fully executed before revocation, constitute a good defense to an action of trespass for an entry upon the land, or of trover brought by the per- son giving the license, to recover the value of the timber taken. Pier- repont v. Barnard, 6 N. T. 279. So, one who enters upon lands of another and puts in crops under a parol license and a parol agree- ment that he shall have the crops, is entitled to the crops ; and if he is expelled from the land, and the crops are converted by the owner or his agent, lie may maintain an action for such conversion. Harris v. Frinh, 49 N. Y. 24; S. C, 10 Am. Eep. 318. To enter a dwelling-house without a license is, in law, a trespass. Adams v. Freemam,, 12 Johns. 408. But if a person keeps an inn, 484 ACTIONS FOE TORTS OR WRONGS. Liceuse. hotel, restaurant, grocery store or other public place of business for the purposes of trade, business or commerce, he thereby gives a gen- eral heense to all persons who enter such place of business, for the pur- pose of transacting such business as the owner professes to engage in. lb. ; Bogert v. Haight, 20 Barb. 251 ; Eeeney v. Ileaney, 2 Denio, 625. There may also be an implied license which arises from that familiar intimacy which exists among neighbors, as where they are accustomed to enter the house or npon the lands of each other for the purposes of friendly intercourse. lb. ; Baoe v. Ward, 4 Ellis & Blackb. 702. So, an implied license may arise from circumstances which are of frequent or daily occurrence, as where a neighbor was in the habit of entering upon the plaintiff's land for the purpose of getting water from his spring or well. lb. Or where neighbors or the public have been per- mitted to enter upon the plaintiff's land for the purpose of drinking the waters of a mineral spring, or of viewing some natural curiosity, such as a waterfall or other object ; or where they have been accus- tomed to use a private road or way for the purposes of rldixig or driv- ing for pleasure, health or amusement. A jury, in an action for tres- pass, may lind an implied heense to the defendant to go upon or to cross the lands of the plaintiff when it appears from the evidence that the defendant for thirty years had been in the habit of visiting the house of the plaintiff, and of crossing his grounds without objection, and that the families of both parties were intimate. Martin v. Hough- ion, 45 Barb. 258 ; S. C, 31 How. 82 ; 1 Abb. (N. S.) 339. And see Zakin V. Ames, 10 Gush. 198. Where the owner of lands has permitted indi- viduals, or the public at large, to use them for such purposes, an action of trespass will not lie against those who have thus entered, until the owner forbids such acts, or the exercise of such privileges. Until a license is revoked or terminated, it is a justification of the acts done under it ; and the defendant cannot be held as a trespasser for such acts nor subjected to damages for them. Miller v. Auburn and Syra- cuse R. E. Co., 6 Hill, 61 ; Pierrepont v. Barnard, 6 N. Y. 279 ; Pratt V. Ogdcn, 34 id. 20 ; Pratt v. PotUr, 21 Barb. 589. And where a license is given without limitation as to time, it is deemed to continue until a revocation is shown. Syron v. Blakeman, 22 Barb. 336. A permanent interest in land, even by way of easement, cannot be created by or under a parol license. Cobb v. Fisher, 121 Mass. 169 ; Hamphouse v. Gaffner, 73 111. 453 ; Selden v. Pel., etc., Canal Co., 29 N. Y. 634. But a parol license is effectual to justify every thing which may be done under it pi'ior to its revocation. lb. Thus, a party who ACTIONS FOE TORTS OR WRONGS. 485 License. is in possession of land under a contract of purchase, which gives a li- cense to cut the timber thereon, will not be liable to an action for cut- ting timber while the license was operative, even though he should afterward forfeit his right to the lands under the contract, by reason of his non-compliance with the terms of the purchase. Pratt v. Ogden, 34 N. Y. 20. An express license carries with it by implication an authority to do such damage and injury as necessarily results from the performance of the act so authorized. Daud v. Kingscote, 6 Mees. & W. 196 ; Boults v. Mitchell, 15 Peun. St. 371. Hence it was held that an express license to cut holes through the floors of the plaintiff's store impliedly exempted the licensee from damages for injuries necessarily resulting from doing the act in a careful manner ; Woodruff v. Beekman, 11 Jones & Sp. 282 ; but not from damages for any thing beyond that limit. lb. And see Sterling v. Warden, 51 N. II. 227; S. C., 12 Am. Rep. 80; Cur- tis V. Galvin, 1 Allen, 216. The privilege, under a verbal contract, of throwing the waste ma- terial from a saw-mill into a stream running through the land of another was held to be a license, and not an easement. Thompsons. MoElarney, 82 Penn. St. 174. So, of oral permission to enter land and cut and remove wood ; Oreeley v. Stilson^ 27 Mich. 153 ; or to enter land and dig min- erals. Anderson v. Simpson, 21 Iowa, 399. And the right of a licensee under a contract giving a right to dig and take ore from a mine is not necessarily exclusive of the licensor and his grantees, unless it appears, ex]3ressly or by clear implication, that such was the mutual intention of the parties. Sllsby v. Trotter, 29 N. J. Eq. 228. A license is essentiall}'- an authority or power and it is therefore sub- ject to the incidents, and marked by the rules which characterize the exercise of such power or authority. Among these incidents is that of revocation ; for every mere license is revocable, and its continuance depends entirely upon the will of the person who gave or created it. And where a mere license is given, however formal it may be, as in the case of a written or even a sealed instrument, it may still be counter- manded or revoked at pleasure by the party granting the license. Simphins v. Rogers, 15 111. 397 ; Woodward v. Seely, 11 id. 157; E.a parte Cdburn, 1 Cow. 568 ; Mumford v. Whitney, 15 Wend. 380. If the parties upon the revocation of a license will be in the same position as before it was given, it may be laid down as a universal rule that the license is revocable at the pleasure of the licensor. Hetfield v. Central R. R. Co., 5 Dutch. (N. J.) 571 ; Wingard v. Tift, 24 Ga. 179 ; Tan- 486 ACTIONS FOE TORTS OE WEONGS. License. ner v. DaUntine, 75 111. 62i ; Allen v. Fiske, 42 Yt. 462 ; Houston V. Laffee, 46 IST. H. 507. And see 7 Act. and Def. 205, 206. A parol license to enter into the possession of land and to occupy it is revoked by a conveyance of the land to another person, or by the death of the person giving the license. Uggleston v. iV. Y. dc Harlem It. H. Oo., 35 Barb. 162, 167. A mere agreement to sell land does not of itself import a license to enter into possession ; and it Avill be found, upon a reference to the cases in which the rights of parties, who have gone into possession of lands under contract to purchase, have been examined, that they have had possession either by the stipulation of the contract, or by the express consent of the vendor. lb. ; Suffern V. Townsend. 9 Johns. 35 ; Cooper v. Slower., id. 331. A licensor may, therefore, stop the licensee at any moment, and even after he has begun to act on the authority or permission given to him ; and the exe- cution of a part of the power, privilege or authority granted will form no excuse for going on with the residue after a withdrawal or revoca- tion of that power, which alone could render it right and lawful. Jamieson v. Millemann, 3 Duer, 255 ; Tillotson v. Preston, 7 Johns. 285. The principal distinction between a grant and a license to enter upon lands is that the mere license, whether made by parol or in writ- ing, is in all cases revocable at the pleasure of the licensor. lb. The single exception is where the license is annexed as an incident to a valid grant, and its exercise is necessary to a beneficial enjoyment of the grant. lb. And it will not make any difference that a license to enter upon land, or to do any act thereon, had its origin in a contract or is otherwise founded upon a consideration, unless those forms have been pursued which are requisite to bind the land or to give the licensee an interest which is independent of the will or pleasure of the licensor, because the remedy lies in an action and not in persisting in a course which, although originally lawful, has become tortious. lb.; Wood v. Leadbitter, 13 M. & W". 83S ; Marston v. Gale, 4 Fost. 176. But the license will Justify acts done imder it before its revocation. Ante, 484. If a person enters into a contract for the purchase of land which gives no right of possession, and fails to comply with the terms of his con- tract, he cannot afterward maintain trespass against the owner for for- cibly dispossessing him, even though he entered under a verbal license. Fagan v. Soott, 14 Him, 162. A parol license given by the owner of land to a railroad company to occupy the land for its road, followed by the expenditure of money in the construction of the road, is not irrevocable. Murdook v. Prospect Park, etc., B. R. Co., 73 N. T 579. The license merely justifies the ACTIONS FOR TOETS OE WEONGS. 487 License. entry and may be revoked at the pleasure of the licensor. lb. A license to enter upon land "at any and all times" and cut and carry away growing wood may be revoked if not acted upon within a reasonable time. Hill v. Hill, 113 Mass. 103; S. C, 18 Am. Eep. 455. A license is a mere personal privilege which cannot be alienated or transferred to another, and it is so construed as to be confined strictly to the original parties so that it can neither operate to the advantage nor to the deti'iment of third persons. Ex parte Cohurn, 1 Cow. 568. It is equally plain that the operation of a power must necessarily be confined to the person from whom it emanates, and that even when binding on him it cannot be so on third persons ; or, in other words, that an authority given by one man cannot be pleaded or given in evi- dence as a bar to the right or title of another. Hence, it may be laid down as a general principle that the conveyance of land will extinguish every license or authority which may have been previously given by the grantor, not only by operating as an implied revocation, but by de- termining the interest on which it operated, and which alone could make it effectual ; which shows that the license is revoked, ipso facto, by the conveyance, and would be worthless even if it were not, because the estate of the grantor is at an end, and the grantee cannot be bound by an authority which he never gave and to which he is consequently an entire stranger. Wallis v. Harrison, 4 M. & W. 538 ; Perry v- Fitzhowe, 8 Ad. & El. (N. S.) 757. But these principles do not apply when the power or license is coupled with an interest, or when it is necessary to the possession or the enjoyment of any right or title which has its origin in the act or contract of the person who creates the power or grants the license. For, under such circumstances, the power or license will become a mere incident to the interest, and will not only cease to be revocable by the grantor, but will acquire a capacity for transfer or alienation to a third person by or with a conveyance of the interest to which it is attached. Gaussen v. Morton, 10 Bam. & Cress. 731 ; Jamieson v. Millemann, 3 Duer, 255 ; Wood v. Mamley, 11 Ad. & El. 34. It is not essential that the interest should be in the thing to which the right given by the license relates, or upon which it is to be exercised ; all that is neces- sary to deprive the licensor of the power of revocation is, that he should have given, or that the licensee should possess, some estate or interest, which depends on the continuance of the license, and which cannot be enjoyed if it be withdrawn or terminated. And, therefore, the gift or the sale of a chattel, which is situated on the land of the donor, or of the vendor, implies a right to enter, for 488 ACTIONS FOE TOKTS OR WRONGS. License. the purpose of removing it, which cannot be recalled ; and the same result will follow when the interest grows out of the execution of the license, though not given previously, as when game is killed, or standing timber felled, on the faith of a permission given by the owner of the soil, because action, on the faith of such a license, gives the woodsman in the one case, and the sportsman in the other, a right to the fruits of his exertions, and entitles him to a reasonable time and opportunity to remove the same to some place where they may be enjoyed with freedonj. Mumford v. Whitney, 15 Wend. 380, 392 ; Fierr6j)ont V. Barnard, 6 E". Y. 279 ; S. C, 5 Barb. 364; Wood v. Leadhitter, 13 Mees. & Wels. 844 ; Thomas v. Sarrell, Yaughan, 330, 351 ; Neitleton V. SiTces, 8 Mete. 34 ; Heath v. Randall, 4 Cush. 195. It is, however, necessary to remember that, as the principle thus established is, in some respects, exceptional, and contravenes the right which every man has to the exclusive dominion of his own property, those who rely upon it must take care to bring themselves within its operation, and that it will not be enough to aver that they went upon the land for the purpose of removing goods or fixtures, without showing how the goods came to be on the laud, and that the circumstances were such as to justify the entry. Anthony v. Haneys, 8 Bing. 186. A party may resort to every possible means, short of a breach of the peace, for the recaption of his property. Kenney v. Planer, 3 Daly, 131. And see Blades v. Biggs, 10 G. B. (N. S.) 713. One whose cattle escape upon the land of another may follow and drive them back without being a trespasser, unless the escape itself was a trespass. Sawyer v. Vermont, etc., R. R. Co., 105 Mass. 196. So, where the sale of a horse has been rescinded, for fraud, the seller may enter the premises of the buyer to reclaim him. Wheeldon v. Lowell, 50 Me. 499. And it was held to be a justification to one who entered a yard, that he came to view a mare which had been recently stolen from him. Webb v. Beavan, 6 Man. & Gr. 1055. So, tlie mortgagee of chattels has an implied license to enter after foreclosure and take away the goods mortgaged. McJSfeal v. Emerson, 16 Gray, 384. But it was held that a mortgagee of chattels could not enter a house to take them, where the mortgagor had locked them up and left them, although he believed, with good reason, that the mortgagor did not intend to return. McLeod v. Jones, 105 Mass. 403 ; S. 0., 7 Am. Eep. 539. Where the owner of lands gives a license to one person to enter upon such lands, or to cross over them, this gives the licensee no au- thority to take other persons with him. But if a person is authorized to enter upon lands for the performance of certain acts, or for the exe- ACTIONS FOR TORTS OR WRONGS. 489 License. ciition of some specified design, such as cutting down trees, building fences, digging ditches, clearing up fields, or the like, the person may take with him all necessary assistance, either of men or beasts, because a license to do any act implies a right, to take all the assistance, and do every thing which is essential to the accomplishment of the object in view. Dennett v. Grover, Willes, 195. "Where a carpenter is erecting a building on the land of another under contract, he has an implied license to enter while the contract is in force, and if it is rescinded before completion he or his men may enter to remove their tools or other property. Arrington v. Larrabee, 10 Gush. 512. It is a sufiicient answer to a complaint for trespass in entering upon the lands of the plaintiff and removing a building there- from, that the building was erected and removed by the defendant at his own expense, under a parol license from the plaintiff, and that in so doing no unnecessary damage was done to the plaintiff's land. Sohoon- over V. Irwin, 58 Ind. 287. The law gives a license or authority to enter upon lands in numerous instances, for the execution of legal process ; and, therefore, a constable is authorized to enter upon the lands of a defendant named in process, for the purpose of making a service thereof upon him, in such cases as the service of a summons, warrant, attachment, replevin process, execu- tion, subpoena, and the like kinds of process. And whenever such a power is given by statute, every thing necessary to make it effectual, or to attain the end in view, is implied. Stief r. Hart, 1 N. Y. 20. So, when the law commands a thing to be done, it impliedly authorizes the performance of all acts necessary to the execution of the com.mand. lb. But this license is not limited to ofiicers alone, and under all circiim- stances ; for there are instances in which a party is authorized to serve process, as in the case of a subpoena. And where one party to an ac- tion has a subpoena, and he goes with it to the house of the other party, for the pui'pose of subpoenaing him as a witness, and such party is at home, and within his house at the time, these facts amount to a legal license to enter the house to make such service. And if the door of the house is open, and the person enters therein for the purpose of serving the process, he will be lawfully there, and may refuse to leave, and may use force to reach the witness to the extent that force is necessary to overcome the resistance offered to him. But if he uses more force than is necessary to accomplish his purpose, to that extent he is liable as a wrong-doer. Eager v. Danforth, 20 Barb. 16. Where one person enters upon the lands or into the house or build- ing of another, in pursuance of an authority given by law, and he abuses 62 490 ACTIONS FOE TORTS OR WRONGS. Of division and other fences. that authority, he will be a trespasser from the beginning, in the same manner as though the law had not given hira any authority to enter in the first instance. But, where a person makes such entry in pursuance of a license given to him by the party or owner of the lands, and he abuses that authority or license, he will not be regarded as a trespasser from the beginning, but mei-ely for the subsequent wrongful acts. Six Carpenters Case, 8 Coke's Rep. 146 a / Dumont v. Smith, 4 Denio, 319 ; Allen v. Crofoot, 5 "Wend. 506. The reason assigned for this distinction is, that where a general authority or license is given bylaw, the law determines from the subsequent acts with what intent the original act was done ; but that when a party himself gives an authority or license to do any thing, as to enter upon lands, he cannot, for any subsequent cause, convert that which was originally done, under sanc- tion of his own authority or license, into a trespass from the beginning, and in this latter case, therefore, it will be the subsequent acts alone that will be a trespass. lb. For instance, the law gives authority to enter a common inn or tavern ; but if a person who enters it commits a trespass while there, the law adjudges that he entered for the specific purpose of committing that particular injury, and because the act which demonstrates that intention is a trespass, he shall be adjudged a tres- passer ah initio; or, in other words, the subsequent illegality shows that the party contemplated the illegal act all along, so that the whole be- comes a trespass. lb. But when a party enters a house by a license from the owner, he will not be considered a trespasser from the begin- ning, for an unlawful act done by him after such enti'y ; as was held in a case where the defendant entered the house of the plaintiff in his absence, and obtained papers from his wife, of which he took copies for the purpose of commencing an action against her husband. Allen v. Crofoot, 6 Wend. 506. In the last case the defendant knocked at the plaintiff's door, and was told to walk in ; he was found copying the papers ; but how he obtained them, on what representation, or from whom, the evidence did not disclose. lb. In an action of trespass for entering upon real estate, a license, if relied upon as a defense, must be pleaded. Ilaight v. Badgeley, 15 Barb. 499. § 12. Of division and other fences. The law in relation to high- way and division fences is a frequent subject of discussion, and as the statutes relating to the subject are conclusive upon the subject to which they relate, it is deemed advisable to give the substance at least of these statutes in this work. At common law, one tenant could not compel the tenant of an adjoin- ing close to make a division fence except by agreement or prescription, ACTIONS FOR TORTS OR WRONGS. 491 Of division and other fences. and then the remedy was by action on such agreement or prescription. Ilolladay v. Marsh, 3 Wend. 145. Under the successive statutes of this State on the subject, a tenant who chose to let his lands lie open conld not be compelled to make his proportion of a division fence where none had been built, until the amendment adopted in 1866 (Laws of 1866, chap. 5i0), which provided that each of two or more persons having lands adjoining should make and maintain a just and equal proportion of the division fence between them, in all cases where one-half or more of each of said adjoining lands were cleared or improved. (§ 1.) By that amendment in all other cases the owner could let his land lie open if he chose ; and if he did so he could not be compelled to build a fence. But if he afterward inclosed his land, he was required to refund to the owner of the adjoining land a just proportion of the value at any time of any division fence that had been made and maintained by such adjoining owner, or to build his proportion of such division fence. (§ 2.) And even if he chose to let his land lie open, if one-half or more of it was cleared or improved, he was reqiiired to refund to the owner of the adjoining land a just pro- portion of the value at the time said amendment took effect of any division fence that had been made and maintained by sl^ch adjoining owner, or to build his proportion of such fence. (§ 3.) These provis- ions related to the case of a tenant who had not contributed to the making and maintenance of a division fence. If, after he had made liis proportion of the division fence, the tenant chose to i-emove his fence and let his lands lie open, he conld do so, providing his lands were not one-half or more cleared or improved, on complying with the requirements of the statute and obtaining a determination of the fence-viewers that he could do so with propriety. (§ 6.) By an amend- ment adopted in 1871 (Laws of 1871, chap. 635), the cases where per- sons having lands adjoining could be compelled to make and maintain a division fence were reduced to those in which each of the adjoining lands was wholly cleared or improved, and the several provisions of the act of 1866 above referred to were changed accordingly, and in that shape are now in force. Chaniberlain y. Reed, 14 Hun, 403. This summary of the act of 1866 has been given for the reason that it presents in outline the rights of owners of adjoining lands in regard to the divis- ion fences more clearly than the statute itself, and serves , to some extent, to throw light on the intent of the legislatiire in making cer- tain changes in or additions to that act. The provisions of the Revised Statutes as amended by the acts referred to are as follows : " Where two or more persons shall have lands ad- 492 ACTIONS FOR TOETS OR WRONGS. Of division and other fences. joining, each of them shall make and maintain a just and equal pro- portion of,. the division fence between them in all cases where each of such adjoining lands shall be cleared or improved. And where such adjoining lands shall border upon any of the navigable lakes, streams or rivers within this State, it shall be and is hereby made the duty of the owner thereof to maintain such division fence down to the line of low-water mark in such lakes, streams and rivers." 1 R. S. 353, § 30 ; 1 Edm. ed. 326 ; as amended by Laws 1871, chap. 635, § 1. In 1872, an act was passed amending the section of the Revised Statutes above cited by adding at the end of the section as follows : "And wherever such adjoining lands, one-half or more of which are improved, shall be bounded by or upon either bank of a stream of water not navigable, the fence- viewers of the town in which the same are situated shall direct, in the manner hereinafter mentioned, upon which bank of such stream, and where upon such bank, the division fence sliall be located, and the proportion thereof to be kept and main- tained by such adjoining owners." Laws 1872, chap. 377. As this amendment supplies a seeming omission in the amendatory act of 1871, it is but reasonable to suppose that the legislature intended that the amendment of 1872 should be added to section 30 of the Revised Statutes, above cited, as amended by the act of 1871, and not that it should be added to that section as originally enacted. See, however, 1 R. S. (6th ed.), 841, § 43, and note 3. " Where two or more persons shall have lands adjoining, and not within the provisions of section 30 as hereby amended each of them shall make and maintain a just and equal proportion of the division fence between them, except the owner or owners of either of the ad- joining lands shall choose to let such lands lie open. If he shall after- ward inclose it, he shall refund to the owner of the adjoining land a just proportion of the value, at that time, of any division fence that shall have been made and maintained by such adjoining owner, or he shall build his proportion of such division fence." 1 R. S. 353, § 31, as amended by Laws of 1871, chap. 635, § 2. "Where a person shall have cleared or improved lands lying open, he shall refund to the owner of adjoining land, which is also cleared or improved, a just proportion of the value, at the time this act shall take effect, of any division fence that shall have been made and maintained by such adjoining owner between such cleared or improved lands, or he shall build his proportion of such division fence. Whenever a subdi- vision or new apportionment of any division fence shall become neces- sary by reason of the transfer of the title of either of the adjoining ACTIONS FOE TORTS OH WEON(^S. 493 Of division and other fences. owners of the whole or any portion of the adjoining lands by convey- ance, devise or descent, such subdivision or new apportionment shall thereupon be made by the adjoining owners affected thereby ; and either adjoining owner shall refund to the other a just proportion of the value, at the time of such transfer of title, of any division fence that shall theretofore have been made and maintained by such other adjoining owner, or the person from whom he derived his title, or he shall build his proportion of such division fence. The value of any fence, and the proportion thereof to be paid by any person, and the proportion to be built by him, shall be determined by any two fence- viewers of the town." 1 R. S. 353, § 32, as amended by Laws of 1871, chap. 635, § 3. " If dispute arises between the owners of adjoining lands concerning the proportion or particular part of the fence to be maintained or made by either of them, such dispute shall be settled by any two of the fence- viewers of the town." 1 R. S. 353, § 33, as amended by Laws of 1850, chap. 319. " When any of the above-mentioned matters shall be submitted to fence-viewers, each party shall choose one; and if either neglect, after eight days' notice, to make such choice, the other party may select both." 1 E. S. 353, § 34. " The fence-viewers shall examine the premises, and hear the allega- tions of the parties. In case of their disagreement, they shall select another fence-viewer to act with them, and the decision of any two shall be final upon the parties to such dispute and upon all parties holding under them." Id., § 35. See People v. Dewey, 3 Sup. Ct. (T. & C.) 638 ; S. C, 1 Hun, 529. " The decision of the fence-viewers shall be reduced to writing, shall contain a description of the fence, and of the proportion to be main- tained by each, and shall be forthwith filed in the office of the town clerk." 1 E. S. 353, § 36. " If any person liable to contribute to the erection or reparation of a division fence sliall neglect or refuse to make and maintain his propor- tion of such fence, or shall permit the same to be out of repair, he sliall 7iot be allowed to have and maintain any action for damages incurred, but shall be liable to pay to the party injured all such damages as shall accrue to his lands and the crops, fruit trees and shrubbery thereon, and fixtures connected with the said land, to be ascertained and appraised by any of the fence-viewers in the town, and to be recovered with costs of suit, which appraisement shall be reduced to writing and signed by the fence- viewers 494 ACTIONS FOE TORTS OR WRONGS. Of division and oilier fences. making the same, but shall be only prima facie evidence of the amount of such damages." Laws of 1838, chap. 261, substituted for § 37. " If such neglect or refusal shall be continued for the period of one month after request, in writing, to make or repair such fence, the party injured may make or repair the same at the expense of the party so neglecting or refusing, to be recovered from him, with co?ts of suit" 1 R. S. 364, § 38. " If any person who shall have made his proportion of a division fence shall be disposed to remove his fence and suffer his lands to lie open, he may do so, provided such lands are not cleared or improved, at any time between the first day of November in any one year, and the first day of April following, but at no other time, giving ten days' notice to the owner or occupant of the adjoining land of his intention to apply to the fence-viewers of the town for permission to remove his fence ; and if, at the time specified in such notice, any two of such fence- viewers to be selected as aforesaid, shall determine that such fence may with pro- priety be removed, he may remove the same." 1 R. S. 354, § 39, as amended by Laws 1871, chap. 635, § 4. " If any such fence shall be removed without such notice and pei^ mission, the party removing the same shall pay to the party inji;red all such damages as he may sustain thereby, to be recovered, with costs of suit." Id., §40. " Whenever a division fence shall be injured or destroyed by floods, or other casualty, the person bound to make and repair such fence, or any part thereof, shall make or repair the same, or his just proportion thereof, within ten days after he shall be thereunto required by any person interested therein. Such requisition shall be in writing and signed by the party making it." Id., § 41. " If such person shall refuse or neglect to make or repair his propor- tion of such fence for the space of ten days after such request, the party injured may make or repair the same at the expense of the party so refusing or neglecting, to be recovered from him, with costs of suit." Id., § 4i4. " Witnesses may be examined by the fence-viewers on all questions submitted to thorn ; and either of such fence-viewers shall have power to issue subpcenas for and to administer oaths to said witnesses ; and each fence-viewer and witness thus employed shall be entitled to $1.50 per diem ; such fence-viewers or a majority of them shall determine what proportion thereof shall be paid by the parties interested in such division fence, and reduce their determination to writing and subscribe the same, and file it in the office of the town clerk where such fence- ACTIONS FOR TORTS OR WRONGS. 495 Of division and other fences. viewers shall reside ; the party refusing or neglecting to pay such fence- viewers or either of them, shall be liable to be sued for the same, with costs of suit." Id., § 43, as amended by Laws of 1866, chap. 540. The statute also provided that " whenever the electors of any town shall have made any rule or regulation prescribing what shall be deemed a sufficient fence in such town, any person who shall thereafter neglect to keep a fence according to such rule or regulation shall be precluded from recovering compensation in any manner for damages done by any beast lawfully going at large on the highways, that may enter on any lands of such person not fenced, in conformity to the said rule or regu- lation, or for entering through any defective fence." 1 R. S. 354, § 44. But otlier statutory provisions hereinafter noticed regulate the pro- ceedings in cases of damage by cattle trespassing from the highway, which doubtless supersede the section quoted. See Code of Civil Proc. §§ 30S2-3084 ; Vol. I, 65, 6&. " When the sufliciency of a fence shall come into question in any suit, it sliall be presumed to have been sufficient until the contrary be estab- lished." 1 R. S. 354, § 45> The assessors and commissioners of highways elected in every town, are, by virtue of their offices, fence-viewers of their town. 1 R. S. 340, § 4. Under the provisions of the statutes cited each owner of lands not wholly cleared or impi'oved is bound to maintain his proportion of the division fence so far as he uses it, that is, so far as it serves to fence any of his lands which are inclosed, whether cleared or improved or not. But if, before he has contributed to the division fence, he chooses to let a part of his lands lie open, or if, after he has built a portion of it, he then chooses to let a part of his land lie open, and to remove that part of the division fence adjoining it, he may do it on complying with the statute. But in either case he must build, pay for, or maintain, as the case may be, his proportion of such part of the division fence as he con- tinues to use for the purpose of inclosing any part of his land. Ohairiber- lain V. Reed, 14 Hun, 403. The amount of division fence which each adjoining owner is required to build under the statute is not one-half in length, but a just and equal proportion with reference to the cost of construction and maintenance. PeojpU v. Dewey, 3 Sup. ' Ot. (T. & C.) 638 ; S. C, 1 Hun, 529. In 1 862, a statute was passed "to prevent cattle from running at large in the highway," declaring such act unlawful, and providing for the seizure of any cattle at large in violation of the statute. Laws 496 ACTIONS FOE TORTS OR WRONGS. Of division and other fences. of 1862, cliap. 459. This statute was amended in 1867, and again in 1869 and 1872. See Laws of 1867, chap. 814 ; Lawsof 1869, chap. 424 ; Laws of 1872, chap. 776. These statutes had no application to the case of a trespass of cattle gaining access through a division fence to the lands of an adjoining owner. Jones v. Sheldon, 50 N. T. 477. The original statute and amendatory acts were repealed by the general re- pealing act of 1880, and as a substitute therefor an action or special proceeding was given by the Oode of Civil Procedure against persons suffering animals to stray upon the highway, in which all the essential rights and remedies given by the acts repealed were retained. Under the Code, any person Avho suffers or permits one or more cattle, horses, colts, asses, mules, swine, sheep, or goats to run at large or to be herded or pastured in a public street, highway, park or place, elsewhere than in a city, incurs thereby a penalty of $5 for each horse, colt, ass, mule, swine, bull, ox, cow or calf, and $1 for each sheep or goat so running at large, herded or pastured, which may be sued for and recovered, with costs of the suit, in any justice's court of the town or district in which they are found running at large, herded or pastured, by any resident of that town, by an officer to whom a line or penalty is to be paid for the benefit of the poor, as prescribed in section 2875 of the Code, or the overseer or superintendent of the poor of that town or district. The entire amount of the penalties may be recovered in one action although it exceeds the sum for which a justice can render a judgment in an ordinary action. See Code of Civil Proc, §§ 3082, 3083 ; Vol. I, 65. Tlie Code furnishes also a proceeding 'in rem by which such animals found running at large, herded or pastured in a public street, highway, park or place, elsewhere than in a city, or trespassing upon real prop- erty, having entered from a public street, highway, park or place, may be seized, detained and disposed of in the manner prescribed by that act. See Code of Civil Proc, §§ 3084, 3085 ; Yol. I, 66. The Code also prescribes the person by whom the seizure may be made (§§ 3084, 3085) the form and contents of the petition upon which the subsequent proceedings are based (§ 3086) ; the form and contents of the precept issued thereon (§ 3087) ; the mode of service of the precept (§ 3088) ; proof of such service (§ 3089) ; the answer of the owner or party in interest (§ 3090) ; the proceedings on default of the owner or a decision in favor of the petitioner (§§ 3091-3095) ; the proceedings upon a decision in favor of the person answering the peti- tion (§ 3096) ; and the other proceedings incident to the sale or other disposition of the property seized. When a person other than the owner has willfully caused cattle to ACTIONS FOE TORTS OE WEONGS. 497 Of division and other fences. run at large, or to be herded or pastured in public streets, highways, pai'ks or places, or to stray therefrom upon adjoining lauds, with intent that they shall be seized, the owner of any animal or animals so caused to be seijzed may maintain an action against the person committing such willful act, and recover therein all damages sustained, including the sum paid to recover possession of the animal or animals ; and in addition thereto, the sum of $20 for each animal seized. Code of Civil Proc, §§ 3098, 3099. So when the possession of an animal will- fully caused to run at large has been delivered to the owner pursuant to section 3098 of the Code of Civil Procedure, the petitioner, who instituted the special proceeding before the justice, may maintain an action against the person who committed the willful act, to recover, in addition to all other damages sustained by the plaintiff in consequence of such act, all sums to which the plaintiff would have been entitled out of the proceeds of a sale of the animal, other than the compensation paid for its care and keeping. And if the petitioner is a private person, the officer to whom a fine or penalty is to be paid for the benefit of the poor, as prescribed in section 2875 of the Code, may maintain an action against the person who committed the willful act to recover the penalties to which the plaintiff would have been entitled out of the pro- ceeds of the sale of the animal or animals seized. Either of these actions may be maintained without regard to the pendency of either of the others, or the recovery of judgment therein. Code of Civil Proc, §§ 3099, 3100 ; Yol. I, 71, 72. Where an officer or any other person has seized an animal upon the ground that it was running at large, or was being herded or pastured, or was trespassing contrary to the provisions of the Code, and has im- mediately filed his petition and diligently prosecuted it in the manner prescribed in that act, no action can be maintained against him, or a person acting by his command or in his aid, by a person to whom the precept was directed by name and upon whom it was personally served, or who has appeared and answered in the special proceeding, or de- manded the return of the animal seized. Code of Civil Proc, §§ 3107, 3108 ; Yol. I, 74. But, except in the case above stated, the owner of an animal seized or detained under color of any provision of the Code relating to strays may maintain an action to recover the animal or its value, or damages for the seizure or detention, or for any unlawful act subsequent to the seizure, if in fact the animal was not, at the time of the seizure, running at large, or bein^ herded or pastured, or 63 498 ACTIONS FOR TORTS OR WRONGS. Of division and other fences. trespassing as specified in the provisions of the Code above referred to. Code of Civil Proc, § 3108. The commencement of an action or special proceeding by one of two or more persons authorized by the Code to bring an action or to seize an animal straying in violation of that act bars proceedings in behalf of the others. But the justice before whom the action or proceeding is pending may, in his discretion, allow an officer or other person, who is interested in the recovery, or in the applica- tion of the proceeds of the sale, to appear in the action or special proceeding, for the purpose of protecting his interest, and to take such part in the proceedings therein as the justice thinks proper. See Code of Civil Proc. , § 3112. But where a private person has seized an animal and abandoned possession of it without filing a petition, or has settled or discontinued an action brought by him, the officer to whom a penalty is payable, as prescribed in section 3083 or subdivision fourth of section 3092 of the Code of Civil Procedure, may maintain an action against the owner of the animal in question, to recover the penalty so payable to him, unless he has assented to. the abandonment, settlement or discontinuance, and may recover judg- ment for the penalty upon proving the facts which would have author- ized a recovery by the plaintiff in the former action, or the petitioner in the special proceeding. See Code of Civil Proc, § 3113 ; Yol. 1, 76. These rights of action and remedies by way of special proceeding have been noticed in this place in deference to the original plan of this work. The forms adapted to such actions and proceedings will be found in a subsequent volume. In addition to the provisions of the Code of Civil Procedure relat- ing to strays, certain provisions of the Revised Statutes are still in force, under which, in certain months of the year, cattle straying upon in- closed land may be detained and sold, unless redeemed. The proceed- ings under this statute are in no sense proceedings in court, and there- fore will be considered briefiy. " Whenever any person shall at any time have any strayed horse upon his inclosed land, or shall, between the first day of November in any year and the first day of April thereafter, have any stray neat cat- tle or sheep upon his inclosed lands, such person shall, within ten days of the coming of any such stray thereon, deliver to the clerk of the town within which such lands shall be, a note, in writing, containing the name and place of abode of such person, and the age, color and marks, natural and artificial, of each stray, as near as may be." 1 R. S. 351, § 17. ACTIONS FOE TOETS OE WEONGS. 499 Of diviBion and other fences. " If any person upon whose inclosed lands any such neat cattle, horses or sheep shall come shall neglect to deliver such notice in writ- ing to the town clerk within the time above required, he shall be pre- cluded from all the benefits of this article, and from all claim to com- pensation for keeping such strays." Id., § 18. " The town clerk, on the receipt of every such note, shall enter the same at large in a book to be provided by him for that purpose ; for which entry he shall receive six cents each for all neat cattle and horses, and three cents for each sheep, to be paid by the person delivering the note." Id., § 19. " The book in which such entries shall be made shall always be kept open for inspection ; and no fee shall be taken by the clerk for any search therein." Id., § 20. " The person delivering the note shall be entitled to receive therefor nine cents each for all neat cattle and horses, and three cents for each sheep described in the note ; and he may detain such strays until the owner thereof shall appear and pay such fees, together with the fees paid or due to the clerk, and all reasonable charges for keeping the strays ; such charges being first ascertained by two fence-viewers of the town, to be selected by the person claiming the same, in case he and the owner of the stray cannot otherwise agree." Id., § 21. " Each fence-viewer shall be entitled to receive six cents for every mile he shall be obliged to travel from his house to the place where such strays are kept, and twenty-five cents for a certificate of the charges as ascertained by him ; such fees to be paid by the owner of the strays." 1 E. S. 352, § 22. " Every person who shall deliver any such note, and keep any stray described therein, shall, if the same be not sooner claimed and redeemed, between the first day of May and the twentieth day thereafter, give notice to one of the fence-viewers of the town, whose duty it shall be to ascertain, according to the best of his knowledge and judgment, the reasonable charges of keeping such stray, a certificate whereof shall be given by him to the person applying for the same. The fence- viewer shall be entitled to the like fees as above provided, to be paid by the person applying for the certificate." Id., § 23. , " If no owner shall appear to claim such stray, on or before the first day of May next after the making of such entry, or if the owner sliall refuse or neglect to pay the sums charged on such stray, then the person who shall have delivered such note and kept such stray may proceed to sell the same by public auction to the highest bidder." Id., § 24. " Such person shall give at least twenty days' previous notice of the 500 ACTIONS FOE TOETS OR WEONGS. Fences. time and place of such sale, by advertisement, to be posted up at three of the most public places in the town where the strays shall hare been kept." Id., § 25. " Out of the moneys arising from such sale he shall retain for his own use the sums charged on such strays for the aforesaid note in writing, entry and certificate, together with the sum specified in the certificate for keeping such strays, and the like charges for such sale as are allowed for sales under executions issued out of justices' courts. He shall pay the residue of said moneys, on demand, to the owner of the strays, if he shall appear to demand the same." Id., § 26. "If the owner shall not appear and demand the residue of such moneys within one year after the sale, he shall be forever precluded from recovering any part of such moneys ; and the aforesaid residue shall be paid to the supervisor of such town, for the use of the town, and his receipt shall be a legal discharge to the keeper of such strays." Id., § 27. "If the person who shall have sold such strays shall not, within thirty days after the expiration of the year, pay such residuary moneys to the supervisor of the town, he shall forfeit to the town double the sum so remaining in his, hands, together with the amount of such residuary moneys." Id., § 28. " Each of the cities of this State shall be considered towns for the purposes of this article." Id., § 29. The provisions of the Eevised Statutes relating to distraining cattle or other chattels, damage feasant, were repealed by the general repeal- ing act of 1880. The repeal of this portion of the Eevised Statutes has rendered obsolete many of the decisions relating to trespasses by animals, and it is believed has limited the statutory remedies for such trespasses to those given by the statutes heretofore noticed. Fences. A fence is a building, structure or erection between two contiguous estates, so as to divide them ; or on the same estate, so as to divide one part from the other. Fences are built of different kinds of materials, and in a great variety of forms, but the object is generally the same in all cases, which is the protection of the owner's land from injuries from cattle which may enter from the outside ; or for the pur- pose of keeping one's own cattle upon his own land. As a general rule, fences ought to be built on the line between the land-owners where the fence is a division fence ; and the expense of building an ordinary and proper fence is to be borne equally by the respective parties. The right to place a division fence partly upon the land of each owner is derived wholly from statute, and this right does not extend to fences meeting on ACTIONS FOE TOETS OE WEONGS. 501 Fences. the front of adjoining premises. Sucli fences are required to terminate at the division line. Warren v. Sabm,l Lans. 79; Sharp v. Curtis, 15 Conn. 532. The common nser of an ancient wall separating adjoining lands be- longing to different owners is prima facie evidence that the wall, and the land on which it stands, belongs to the owners of those adjoining lands in equal moieties as tenants in common. Cuhitt v. Porter, 8 Barn. & Cress. 257 ; Wiltshire v. Sidford, id. 259, note a. If two persons have a party -wall, one-half of the thickness of which stands on the land of each, they are not, therefore, tenants in common of the wall, or of the land on which it stands, although the wall was erected at the joint expense of the two proprietors. Matts v. Hawhins, 5 Taunt. 20. The property in a wall erected at joint expense follows the owner- ship of the land whereon it stands. lb. But the title of each owner to the land covered by the wall is qualified by the easement to which the other is entitled. Brooks v. Curtis, 50 N. Y. 639 ; S. C, 10 Am. Eep. 545. At the common law a man was not boimd to fence his lands against cattle, but the owner of the beasts was bound to restrain them, and was answerable for any trespass which they might commit upon the lands of another. And it was a matter of no moment whether the cattle came in from the highway, the land of the owner of the beasts, or through the land of a third person. Stafford v. Ingersoll, 3 Hill, 38, 39. It is a general rule of the common law that the owner of cat- tle is bound, at his peril, to keep them off the lands of other persons, and he cannot justify or excuse such entry by showing that the land was unf enced. Fences were designed to keep one's own cattle at home, and not to guard against the intrasion of those belonging to other peo- ple. Tonawanda H. H. Co. v. Hunger, 5 Denio, 259. At common law, when the cattle of one of two adjoining land-owners are found trespassing upon the land of the other, the owner of the cattle, to ex- cuse himself, must show, not only that the fences which the other owner was bound to maintain were out of repair, but also that the cattle passed over such defective fences ; and this rule has not been changed by the act of 1838, chap. 261, cited ante, 494 ; Deyo v. Stewart, 4 Denio, 101. And, in an action of trespass for injuries done by cattle, where it appeared that the boundary fence between the ad- joining land-owners had been divided, and distinct portions assigned to each of them to erect and maintain, and it appeared that both portions of the fence were out of repair, and it was not shown over what part the cattle passed ; it was held that the plaintiff was entitled to recover. 502 ACTIONS FOE TOETS OE WEONGS. Fences. lb. In such a case the plaintiff's neglect is of no moment unless the cattle came on to his laud in consequence of the ruinous condition of that part of the fence which he is bound to repair ; and as this is an essential fact in the defendant's defense, it is for him to show it by evidence. lb. If the defendant's cattle or swine entered the plaintiff's field or premises through that part of the division fence which the plaintiff was bound to keep in repair, he cannot maintain an action of trespass for the injury done. Shepherd v. Hees, 12 Johns. 433 ; Oriffin V. Martin, Y Barb. 297 ; Harderiburgh v. Lochwood, 25 id. 9. The statute which declares that adjoining land-owners shall not maintain an action for any injury which may be done by cattle which get on the plaintiff's land through a defect in fences which he was bound to maintain or repair, does not apply to any other person than such adjoining proprietors. And, therefore, if A.'s cattle are lawfully placed on B.'s land to pasture, and they escape therefrom on to the lands of 0., an action of trespass will lie by C, against A., notwith- standing his cattle were rightfully on the land of B., provided the cattle got on to C.'s land through a defective line fence which B. was bound to repair. Stafford v. Ingersol, 3 Hill, 38. In such a case C. might elect to sue B. for the trespass of A.'s cattle, if he chose to do so, since his putting the cattle on his land, or letting it for the purpose of pasturage, would make him liable for the acts of the cattle precisely as though they were his own. lb. Where a person occupies land as a tenant at will, or at sufferance, he is entitled to the benefit of the statute relating to division fences, and he may maintain an action against an adjoining land-owner for re- pairing his portion of the division fence which he refuses to build, maintain or repair. Bronk v. Becker, 17 Wend. 320. Any person who occupies sucli adjoining lands, and who is interested in build- ing and maintaining a division fence, in order to secure the full en- joyment of his premises, is entitled to the benefit of the statute regulation, without regard to the particular estate therein belonging to him. lb. Where fence-viewers have decided that a person shall maintain a particular portion of a division fence, it is not necessary that they should appraise the expense of making the fence in order to enable the other party to recover the expense of building such fence, where the proper party refuses or neglects to build it. The expenses may, in such a case, be proved by witnesses who know or can judge of the amount or value. Perldns v. Perhins, 44 Barb. 134. The entry by one of two adjoining owners upon the land of the other, for the ACTIONS FOE TOETS OE WEONGS. 503 Fences. purpose of building a division fence between their lands, is not a trespass if necessary for that purpose. The law compels each owner to mate his portion of the fence, and this carries with it the right to such necessary occupation for the time being, as is required to com- ply with such legal duty. Carpenter v. Halsey, 60 Barb. 45 ; S. C. affirmed, 57 JST. Y. 657. Where one of two adjoining land-owners removes his portion of the division fences, and his cattle afterward escape through the place left open by the removal of the fences on to the lands of the ad- joining proprietor, he will be liable in an action of trespass for the injury done. HoUaday v. Marsh, 3 "Wend. 142, The utmost effect which the statute produces, by authorizing a removal of fences, is to remit the parties to their common-law rights and duties, lb. ; ante, 494, §§ 39, 40. And where a party removes his portion of a division fence, without having previously given the notice required 'by the statute, and without also having obtained the permission of the fence- viewers, he is not merely liable to the damages which may be sustained by such removal, but he may, after due notice to rebuild, and a neglect or refusal to do so, be compelled, by action, to pay the ex- pense incurred in rebuilding it. Richardson v. McDougall, 11 Wend. 46. See Chamherlain v. Heed, 14 Hun, 403. A. and B. were owners of adjoining lands, and A. built a division fence because B. let his lands lie open. B. afterward inclosed his , lands, and a disagreement arose between the parties, not as to the pro- portion of the fence which each was bound to maintain, but as to the value of it, and as to how much B. ought to pay A., and it was held that the fence- viewers had jurisdiction under the statutes. Ante, 492, §§ 31, 32. And that, as no question was submitted to them as to the pro; portion of the fence to be paid for by B., their decision, stating the value of the fence, and the sum to be paid by B., was a sufficient com- pliance with section 36 of the statute. Hewitt v. Wathins, 11 Barb. 4;09. See People v. Dew&y, 3 Sup. Ct. (T, & C.) 638 ; S. C, 1 Hun, 629. Formerly towns were authorized to permit cattle to run in the high- ways. But this is now prohibited by statute, and no cattle can be per- mitted to run at large in the highways. Ante, 495, 496. Under the old rule which permitted towns to regulate the sufficiency of fences, and to provide when cattle might run at large in highways, it was held that a party who did not keep his fences in conformity to the town regulations could not recover damages for injuries done by cattle running at large, under the regulations prescribed by the town. 504 ACTIONS FOR TORTS OR WRONGS. Fences. Griffin v. Martin, 7 Barb. 297 ; Harderiburgh v. LooJewood, 25 id. 9 ; Tonawanda JR. E. Co. v. Mwnger, 6 Denio, 255; S. C.,4K Y. 349. And such statute was held to be constitutional. lb. Towns still have power to prescribe what shall be a lawful division fence ; and a party whose portion of a division fence is not such, as is required hy the town regulations cannot recover any damages for injuries sustained by him in consequence of a trespass committed on his lands, by the cattle of other persons, if they entered through the portion of such deficient or defective fence. Ante, 493, § 37. So, too, towns may now pre- scribe what shall be a sufficient highway or road fence as against cattle, swine, sheep, etc. , which are lawfully in the highway ; and if the fences of the plaintiff are not such as prescribed by the town regula- tions, no action can be maintained for a trespass committed by cattle, etc., which enter upon lands not fenced in accordance with the pre- scribed regulations. Ante, 495, § 44; am,te, 503. In an action of trespass for injuries done by cattle, etc., the defend- ant may allege and prove, if he is able, that the cattle escaped into the plaintifE' s land through a defective fence, which he was bound to repair, and this, if established, will constitute a valid and legal defense. Ante, 493, § 37. To prove that the defective fence belonged to the plaintiff, and that lie was bound to keep it in repair, it will be sufficient to prove that such fence was assigned or apportioned to the plaintiff, as his por- tion, by the fence-viewers. So, too, the defendant may show that, by an express agreement, between the plaintiff and the defendant, the plaintiff was to keep up. and maintain that portion of the fence which was defective, and through which the cattle, etc., got over into the plaintiff's lands. This agree- ment will be valid if it is a mere verbal agreement, for the statute of frauds does not apply to such a case. Talmadge v. Mens. c& Sar. R. JR. Co., 13 Barb. 493 ; Vosburgh v. Te(i,tor, 32 N. Y. 561. There are eases in which parties are bound by prescription to main- tain a particular fence. A -prescription to fence is allowed at common law as resulting from an original grant or agreement, the evidence of which is lost by the lapse of time. Bust v. Low, 6 Mass. 97. Or the obligation by prescription may arise where the fence between two par- cels of land has time out of mind been repaired by the tenant of one of them. See Lawrence v. Jenkins, L. R. , 8 Q. B. 274 ; S. C, 5 Eng. Rep. 228. And where there is a valid prescription which binds one land- owner to maintain perpetuallj'^ a certain fence, the fence-viewers have no jurisdiction under our statutes. Adams v. Tan Alstyne, 25 N. Y. 232 ; S. C, 35 Barb. 9. The maintenance of a fence by one of the ad- ACTIONS FOR TORTS OR WRONGS. 505 Fences. joining proprietors exclusively, for more than twenty years, when he might have compelled the other party to maintain a part of it, warrants the presumption of a grant or covenant compelhng him to do so. lb. But since the adoption of our statutes, requiring each party to make and maintain an equal proportion of the fence, there can be no pre- scription established in respect to part of a boundary line or division fence, however long one party may have maintained one portion of the fence, while the other portion was maintained by the other proprietor, lb. The presumption in such a case is, that each maintained what had been found by agreement to be his just proportion of the fence, in dis- charge of his own duty, and not in exoneration of the other. lb. Such a division, it seems, is binding upon the parties while they remain co- terminous possessors ; but new obligations arise when, by subdivision or otherwise, there is a change in the extent to which one of the adjoin- ing proprietors borders on the other. lb. The statute which empowers fence-viewers to fix the just proportion of fence to be maintained by each land-owner refers to the state of things which exists when they are called on to act, and has no relation to any former ownership of the adjoining possessions. lb. This proportion of fence is changed when- ever a change takes place in the extent which each owner has in the lands which he adjoins, and then a new adjustment becomes necessary, and may, therefore, be legally made. lb. It has been seen that, as a general rule, the owner of cattle, sheep and swine, etc., is bound to keep them on his own lands at the risk of being a trespasser, if they escape on the lands of another. Ante, 501. But there are exceptions to this general rule, which grow out of the neces- sities of the case, as where cattle, etc., are lawfully driven along a pub- lic highway for the purpose of passage therein, and they stray from it in sight of the person in charge of them, and pass against his wiU on to uninclosed lands adjoining the highway, or on to lands not fenced as the town regulations require, while the person in charge makes fresh pursuit to bring them back ; in such a case, the cattle-owner is not lia- ble for this involuntary trespass, nor for the herbage, grass or crops which such cattle may seize as they pass along. Tonawanda R. R, Co. V. Munger, 5 Denio, 259 ; Com. Dig., Trespass, D. ; Fitz. N. B., 298, note. So, as has already been seen, ante, 502, no action will lie where the defendant's cattle escape upon the plaintiff's lands, through a defective fence which he is bound to repair, but which he has neg- lected to do. "Where cattle passing along a public highway stray into an adjoining field through defect offences, the owner of the cattle is bound to remove 6i 506 ACTIONS FOR TORTS OR WRONGS. Damage feasant. thein witMii a reasonable time ; and wliat is a reasonable time is a ques- tion of fact for the jnry, with reference to all the surounding circum- stances. Ooodwyn v. CheveUy, 4 Hurlst. & Norm. 631. Where two persons own land adjoining, and there is a division fence between them, one portion of which one of the parties is bound to repair, and the other portion the other party is bound in like manner to keep in repair, and the cattle of one them escape from his field, through the division fence, into the field of the other by reason of the defect or insufficiency of that portion of the division fence which the latter is bound to keep in repair, he has no remedy ; and if the cattle, while so upon his land, do him a damage, it is damnum, absque injuria. Cowles v. Balzer, 47 Barb. 562. It was early held in the Court of Appeals that a railroad corporation which omits to comply with the statute, as to erecting and maintaining fences and cattle-guards (Laws of 1850, chap. 140, § 44), is liable to the owner of cattle for injuries to them from passing engines, although the cattle were trespassers upon the track. Corwin v. N. Y., etc., R. R. Go.., 13 N. Y. 42. This ruling has been adhered to in numerous cases since decided. Sjpinnew. N. Y.,etc., R. R. Co., 67 N. Y. 153; Tracy Y. Troy & Boston R. R. Co., 38 id. 433 ; Jones v. Seligman, 16 Hun, 230. And it seems that the provision of the statute is applicable to any foreign as well as domestic railroad corporation which keeps open and operates a road within the State. Purdy v. N. Y., etc., R. R. Co., 61 N . Y. 353. So, the provision is applicable to cases where the company's tracks are laid in the streets of cities and villages, and they are liable to the owner of cattle injured by their neglect to fence the vacant lots fronting thereon. Crawford v. If. Y., etc., R. R. Co., 18 Hun, 108. But the tenant of a land-owner who is bound by contract to maintain the fences along the track of a railway company cannot recover against the company for an injury to his cattle occasioned by the failure of the landlord to maintain the fences. Indianapolis, etc., R. R. Co. v. Petty, 25 Ind. 413. Damage feasant. This term is a corruption of the French words faisant dommage, and signifies doing damage ; and it is usually applied to the injury which animals belonging to one person do upon the land of another, by feeding there, treading down his grass, grain, or other production of the earth. A man finding beasts of another wandering on his grounds doing him damage by treading down his grass and the like may, by the rules of the common law, restrain them till satisfac- tion be made to him. Cook v. Gregg, 46 N. Y. 439 ; 3 Bl. Comm. 7 ; Rockwell V. Nearing, 35 N. Y. 302, 308. To a certain extent the ACTIONS FOR TORTS OR WRONGS. 507 Water and water-courses. right is recognized and regulated by the Code of Civil Procedure, as it was formerly recognized and regulated by special provisions of statutes now repealed. See ante, 496. But any remedy by distress, given by statute, is cumulative, and the distrainor may, if he pleases, pursue the common-law remedy by an action of trespass. Golden v. Eldred, 15 Johns. 220. A man is. answerable not only for his own trespasses, but for those of his cattle also ; for, if he keeps them so negligently that they stray upon the lands of another, or if he wrongfully drives them there, and they tread down the herbage, or destroy the grass, crops, shrubs or trees, of such other person, this is a trespass for which the owner of the cattle must answer in damages. If a party elects to follow a statutory remedy instead of the common- law action of trespass, he must follow strictly the course pointed out by the provisions of the statute. § 13. Water and water-courses. The injuries which may be done in relation to water or water-courses are sometimes such that an action of trespass will lie, and in others, they are such as fall within the definition of nuisance. Ante, 445. In a work like the present, it is of little con- sequence under what title the subject is arranged, since the review of tlie cases must necessarily be brief. Running streams maj^^ be either public or private property. Where the stream is so diminutive in its natural state that it is not ioatdble, or in other words, cannot be used for the purposes of transportation of property, it is a private stream and the subject of private ownership. A water-course consists of hed, hanks and water ; yet the water need not flow continually, and there are many water-courses which ^ve some- times dry. There is, however, a distinction to be taken in law between a regular flowing stream of water, which at certain seasons is dried up, and those occasional bursts of water, which, in times of freshet, or melting of ice and snow, descend from the hills and inundate the country. "Water flowing through a hollow or ravine, only in times of rain or melting of snow, is not, in contemplation of law, a water-course. EuVrich V. Richter, 41 Wis. 318 ; Chasemore v. Richards, 7 H. L. Oas. 349. But if the face of the country is such as necessarily to col- lect in one body so large a quantity of water, after heavy rains and the melting of large bodies of snow, as to require an outlet, and if such water is regularly discharged through a well-defined channel which the force of the water has made for itself, and which is the accustomed channel through which it flows, and has flowed from time immemorial, 508 ACTIONS FOR TORTS OR WRONGS. Water and water-courses. such channel is an ancient natural water-course. Earl v. DeEm% 12 N. J. Eq. 280. The word "land" comprehends, in legal contemplation, any ground, soil or earth whatsoever, such as meadows, pastures, woods, moors, waters, marshes, furzes and heath. 1 Co. Inst. 4. " It is observable that water is here mentioned as a species of land, which may seem a kind of solecism, but such is the language of the law ; and, therefore, I cannot bring an action to recover a pool or other piece of water by the name of ' water ' only, either by calculating its capacity, as for so many cubical yards, or by superficial measure for twenty acres of water, or by general description, as for a pond, a water-course, or a rivulet ; but I must bring my action for the land which lies at, the bottom, and must call it twenty acres of land covered with water. For water is a movable, wandering thing, and must of necessity continue common by the law of nature. So, that I can only have a temporary, transient, usufructuary property therein ; wherefore, if a body of water runs out of my pond into another man's, I have no right to reclaim it. But the land which that water covers is permanent, fixed and immovable, and, therefore, in this 1 may have a certain substantial property of which the law will take notice." 2 Bla. Com. 18. Such being the distinction between " land " and " water " in legal signification, let us, somewhat minutely, , inquire respecting the nature of the right to the use and enjoyment of running water, possessed by a riparian proprietor. The owners of water-courses are denominated by the civilians riparian proprietors, and the use of the same significant convenient term is now fully intro- duced into the common law. The soil of the bed of the stream itself, and consequently of the water, may and most frequently is divided be- tween two opoosite riparian owners, that is, the land on the one side of the stream may be owned by one person, while the land on the opposite side is owned by another. When such is the case, each pro- prietor owns to the middle, or to what is called the thread of the stream, as it is expressed in Latin, usque ad filum aquoe. There is but one difference between the case of a stream which runs through a man's land and that in which the stream runs by the side of it ; in the former case he owns the whole, and in the latter but one-half. Where land or a mill-site is sold and conveyed as being bounded by a water-course, the water-course to the thread of the stream is included. But where, in a deed, the land is described as extending to the hanh of the creek the grantee does not take title to its center ; nor is he limited to the bank at high-water mark. Such a description includes the land to the margin of the stream at low water. Halsey v. McOormich, 13 N. Y. 296 • ACTIONS FOR TORTS OR WRONGS. 509 Diverting water of streams, etc. Starr v. Ohiid, 5 Denio, 599. See Stone v. Augusta, 46 Me. 127 ; Rockwell V. Baldwin, 53 111. 19 ; Ross v. Faust, 54 Ind. 471 ; S. C, 23 Am. Rep. 655. The same rule applies, whether a grant of land is made by the State or by an individual ; and where a State, having title to lands lying on both sides of a water-course not navigable, grants the lands lying on one side thereof and bounded thereby, it is imi versally ad- mitted that such grant carries with it the title to a moiety of the bed of the water-course. Browne v. Kennedy, 5 Harr. & J. (Md.) 195 ; Ha/yes V. Bowman, 1 Rand. (Va.) 420. And grants by the general govern- ment of the United States are construed by the common-law rule, un- less there is something to exclude or qualify the construction. Middle^ ton V. Pritohard, 5 111. 510. And see St. Raul, etc., R. R. Co. v. Sohurmer, 7 Wall. 272, 288. Flowing water, it has been observed, as well as light and air, is in one sense puhlici juris, or public property. It is a boon from Provi- dence to all, differing from the other elements, however, in the mode of enjoyment. Liglit and air are diifused in all directions, while flow- ing water is diffused in some particular directions only. When prop- erty was established, each one had the right to enjoy the light and air diffused over, and the water flowing through, the portion of soil belong- ing to him ; the property in the water itself was not in the proprietor of the land through which it passed, but only the use of it as it passed along, for the enjoyment of his property, and as incidental to it. Whether the right to natural streams be ex jurce naturce, that is, by the laws of nature, or by acquiescence and the presumed grant of neigh- bors, the rule is, \h.2A, prima facie the proprietor of each bank of a stream is proprietor of half of the land covered by the stream, hit there is no property in the water. Every proprietor has an equal right to use the water which flows in the stream, and consequently no proprietor , can have the right to use the water to the prejudice of any other proprietoi-. Tyler v. Wilkinson, 4 Mason, 397; Clinton v. Myers, 46 K Y. 51 1, 516. Diverting water of streams, etc. Without the consent of the other proprietors who may be affected by his operations, no proprietor can either diminish the quantity of water which' would otherwise descend to the proprietors below, nor throw the water back upon the proprietors above. Wright v. Howard, 1 Sim. & Stu. 203 ; Mason v. Hill, 3 Barn & Ad. 312, 313 ; S. C, 5 id. 1 ; Acton v. Blundell, 12 Mees. & Wels. 349 ; Clinton v. Myers, 46 N. Y, 511 ; S. C, 7 Am. Rep. 373. It is a principle of the common law that although every riparian 510 ACTIONS FOE TORTS OR WRONGS. Diverting water of streams, etc. proprietor has a right reasonably to use the water in the stream, and even to take it in small and reasonable quantities from the stream, for domestic and other uses, yet he has no right to divert any part of the water of the stream into a course different from that in which it had been accustomed to flow for any purpose, to the perceptible and mate- rial injury of any other riparian proprietor, without a grant, prescrip- tion or license. Garwood v. N. Y. C. c& IT. JR. H. B. Co., 17 Hun, 356. The maxim " aqua currit et debit currere ut currere sole- hat,^'' that is, " water runs and ought to run as it is wont to run," pre- scribes the general rule in respect to running streams, but it is to be interpreted and applied in connection with another rule which is well settled, that each riparian owner has a right to the reasonable use of the water. The maxim, if strictly construed and applied, would pre- vent the use, for manufacturing purposes, of streams available for the propulsion of machinery. Bullard v. Saratoga Victory Manuf. Co., 11 N. Y. 525. The mere detention of the water of a stream, or a pol- lution of it by one riparian proprietor, to the detriment of another below him on the same stream, may be reasonable or unreasonable according to circumstances, and if reasonable no action will lie. But no proprietor has the right to divert and diminish the quantity of water which would otherwise descend to the proprietors below, to their per- ceptible and material injury, without their consent. To snch a case the doctrine of reasonable use has no application. Garwood v. W. JT. C. di II. R. R. R. Co., 17 Hun, 356. A person may use the water of a stream for domestic purposes or for the watering of cattle, although, by reason of the small amount of the water in the stream, such use may be injurious to the proprietor below, and may even deprive him of water sufficient for similar piirposes. Bullard v. Saratoga Yiotory Manuf. Co., 11 N. Y. 525. "Where a spring of water rises to the surface of the earth, upon the land of one person, from which it runs in a stream upon the lands of another, the owner of the land where the stream rises may use the water reasonaljly for his domestic, agricultural and manufacturing purposes ; but he has no right to divert the stream from its natural channel, although the entire waters of the stream are not more than sufficient for his domestic uses, for his cattle, and for the irrigation of his land. Arnold r. Foot, 12 Wend. 330. In one case the plaintiff had immemorially enjoyed the benefit of irrigating his meadows with the waters of a certain stream, subject, however, to the right of a mill above, to detain the waters for the use of the mill ; and although the natural flow of the stream was prevented by the exercise of the miller's right, the waters came down at such times that the ACTIONS FOR TOETS OR WRONGS. 511 Diverting water of streams, etc. plaintifE was enabled to irrigate tis meadows effectually. But, of late, the defendant had, for the purpose of irrigating his own adjacent land, from time to time diverted the water after it had passed the mill, and before it reached the plaintiff's meadows ; and, although it did not ap- pear that the quantity of water which ultimately reached the plaintiff's meadows was thereby sensibly diminished, yet the effect was that the water was detained by the process of irrigation, and did not arrive till so late in the day that the plaintiff was deprived of the power to use it fully ; and it was held that this detention of the water was a use of it which was, in its character, necessarily injurious to the natural rights of the plaintiff as a riparian proprietor, and a ground of action. Sam-p- son V. lioddinott, 1 J. Scott (N. S.), 590, 612. Whether a riparian proprietor may use the water for the purposes of irrigation, if he again returns it into the stream, with no other diminu- tion than that caused by the absorption and evaporation attendant on the irrigation, depends on the circumstances of each particular case. And in an action by the plaintiffs, the occupiers of a water grist-mill, and the defendant, a riparian proprietor, for diverting the stream, the defendant pleaded first, a general denial ; and further, that at certain periods of the year, when the water was more than sufficient for use of the mill, the defendant diverted small quantities of the water for the pur- pose of irrigating certain closes belonging to her on the bank of the stream, which quantities of water, except that which was absorbed and used in the irrigation, were returned into the stream above the mill ; that the diversion was not continuous, but intermittent ; that the quan- tity of water absorbed and lost was small and " inappreciable ; " and that the diversion caused no damage to the plaintiff's mills. At the trial, it was proved that the diversion was not continuous, and that it caused no diminution of the water cognizable to the senses. On the issue formed by the general denial, the jury found for the defendant, or that there was no sensible ' diminution of the water, and it was held that no action could be maintained. Emhrey v. Owen, 6 Exch. 353. The right to have a stream of water flow in its natural state, without diminution or alteration, ia an incident to the property in the land through which it flows ; but this is not an absolute and exclusive right to the flow of aWHuQ water, but only subject to the riglit of other ripa- rian proprietors to the reasonable enjoyment of it ; and consequently it is only for an unreasonable and unauthorized use of this common bene- fit that any action will lie. lb. The English cases do not justify the use of water for irrigation unless the right to use it can be successfully claimed on the ground of a grant 512 ACTIONS FOE TOETS OE WEONGS. Diverting water of BtreamR, etc. or prescription. Chasemore -v . Biohards, 5 Hurlst. & Norm. 982; S. C, 7 H. L. Cas. 349. But it may be regarded as well settled in this country, that a portion of the water of a stream may be used for tlie purpose of irrigating land, as one of the rights of the proprietors of the soil along or through which the stream passes. Weston v. Alden, 8 Mass. 136; Gillett Y.Johnson, 30 Conn. 180; JDavis v. Getohell, 50 Me. 602; Fleming v. J)(wis, S7 Tex. 173. A proprietor cannot, however, under color of that right, or for the actual purpose of irrigating his own land, wholly obstruct or divert the water-course, or take such an un- reasonable quantity of water, or make such unreasonable use of it, as to deprive other proprietors of the substantial benefits which they might derive from it if not diverted or used unreasonably. lb. ; Garwood v. if. Y. C, etc., Co., 17 Hun, 356 ; Clinton v. Myers, 46 N. Y. 511 ; S. C, 7 Am. Eep. 373. Where the stream is small and does not supply water more than sufficient to answer the natural wants of the different proprietors living on it, none of the proprietors can use the water for either irrigation or manufactures. Evans v. Merri- weather, 4 111, 492. And see Bliss v. Kennedy, 43 id. 67 ; Miller v. Miller, 9 Penn. St. 64 ; Bowman v. City of New Orleans, 27 La. Ann. 501. The owner of land is entitled to the use of a stream of water which has been accustomed from time immemorial to flow through it. A person through whose farm a stream naturally flows is entitled to have the whole pass through it, though he may not reqiiire the whole or any part of it for the use of machinery. Grooher v. Bragg, 10 Wend. 260. Where the water of a river is divided by an island, so that only one-fourth of the stream descends on one side of the island, and the residue on the other, the owner of the shore where the largest quantity of water flows is entitled to the use of the whole of the water flowing there ; and the owner of the other shore has no right to place obstructions at the head of the island for the purpose of causing one-half of the stream to descend on his side of the river. lb. Nor can the owner of the shore where the smallest quantity flows require the .other, in the use of the water for hydraulic purposes, to keep up a tight and secure dam ; and if such owner can avail himself of the natural advantages af- forded by his site, without any dam, or with an imperfect one, he is at liberty to do so. lb. If the waters of a spring, whicli were wont to flow in a gully or natural channel to a mill, are cut ofE at their source, and carried into a tank as they rise from the earth, by license of the owner of ACTIONS FOE TORTS OE WEONGS. 513 Diversions of subterraaeau water, etc. the land on which the spring rises, an action will lie by the mill- owner against the person obstructing the flow of the water. Dud- den V. Guardians, etc., \ Hurlst. & Norm. 627. And see Garwood v. New York Central, eta., R. R. Co., 17 Hun, 356. A water-course begins ex jure natures, and having taken a certain course naturally cannot be diverted. Clinton v. Myers, 46 K Y". 511 ; S. C, 7 Am. Eep. 373. "Where there are several mills on a stream, the owner of a mill above has no right to divert the stream so as to injure another mill below his, even when such diversion is made for the purpose of re- pairing the upper mill. Yan Hoesen v. Coventry, 10 Barb. 518. And if such repairs cannot be made without an injurious diversion of the stream, the consent of the lower proprietor mast be obtained, or the upper proprietor must respond to him in damages. lb. The water-power to which the riparian proprietor is entitled consists in the fall of the stream, wlien in its natural state, as it passes through his land or along the boundary of it ; or, in other words, it consists of the difference of level between the surface where the stream first touches his land and the surface where it leaves it. MoCalmont v. Whitaker, 3 Eawle (Penn.), 84. And see Brown v. Bush, 45 Penn. St. 66 ; Tillotson v. Smith, 32 N. H. 94. Diversions of subterranean water, etc. The owner of land has an unqualified right to drain it for agricultural purposes, in order to get rid of mere surface water, where the supply of water is merely casual, and its flow follows no regular or definite course ; and a neigh- boring proprietor cannot maintain an action because he is thereby de- prived of such water which would otherwise have come to his land. Ravistron v. Taylor, 11 Exch. 369. A land-owner has a right to ap- propriate surface water which flows over his land in no definite channel, although the water is thereby prevented from reaching a water-course which it previously supplied. Broadhent v. Ramsbottom, id. 602. There is no principle of law which will prevent the owner of land from filling up the wet and marshy places on his own soil for its ameliora- tion and his own advantage, because his neighbor's land is so situated as to be incommoded by it. Such a doctrine would militate against the well-settled rule that the owner of land has full dominion over the whole space above and below the surface. Ooodale v. Tuttle, 29 N. Y. (2 Tiff.) 459 ; Danderwiele v. Taylor, 65 N. Y. (20 Sick.) 341 ; Wagner v. Long Island R. R. Co., 2 Hun, 633; S. C, 5 Sup. Ct. (T. & C.) 163 ; WJieeler v. Worcester, 10 Allen, 591. See 3 Act. and Del 711, 712; 4 id. 740. As against the owner of land abutting on 65 514 ACTIONS FOR TOETS OR WRONGS. Diversions of subterranean water, etc. a public highway, the selectmen of the town have a right to drain a spring on the highway on such owner's side, in such manner as to ren- der the highway safe from its overflow ; but they have no right to di- vert the water from the spring to a public watering-trough on the other side of the highway. Town of Suffield v. HatJiaway, 44 Conn. 521 ; S. C, 26 Am. Rep. 483. So, too, the owner of a farm may dig a ditch to drain his land, or open and work a quarry upon it, although by so doing he interrupts one of the underground sources of a spring existing on his neighbor's land, which supplies a small stream of water flowing partly through the land of each, and thereby diminishes the natural supply of water, to the injury of the adjoining proprietor. JSllis v. Duncan, 21 Barb. 230. The owner of an ancient mill on a stream has no right of action against an owner of land adjacent, who digs a deep well on his land, and thereby diverts the underground waters, not known to be formed into a stream flowing in a defined channel, which otherwise would have percolated into the stream, although the land-owner does not use the water for purposes connected with his land, but pumps it up and car- ries it o£E in pipes, to supply persons resident in the neighborhood, many of whom had no right as owners to the vase of the water at all. (Jliasemore v. Richards, 5 Hurlst. & Norm. 982 ; S. C, 2 id. 168. So the owner of land through which water flows in a subterraneous course has no right of interest in it which will enable him to maintain an action against a land-owner, who, in carrying on mining operations in his own land in the usual manner, drains away the water from the land of the first-mentioned land-owner, and leaves his well dry. Acton v. Blun- dell, 12 Mees. & Wels. 324, 349, 350. And see Smith v. Kenricle, 1 Man. Grang. & Scott, 515, 566. There is a material difference in relation to the rights of parties which depends upon the circumstances of the particular case. The right of a lower proprietor to enjoy the use of water which flows from the higher adjoining lands in a defined stream, however small, has been already explained, ante, 510. But, where the water which flows from one man's land on to the lands of another is mere surface water, which does not flow in a defined stream or channel, or where it is in the nature of underground springs, streams or water-courses, no action will lie against any pei-son who owns land, and so uses it that it cuts oft' or de- stroys the flow of such water to the lands of the plaintiff, as it had been accustomed to do. Acton v. Blundell, 12 Mees. & "Wels. 349, 350, per TiNDAL, Ch. J. The ground and origin of the law which governs streams running in their natural course would seem to be this, that the ACTIONS FOE TOETS OE WEONGS. 515 Diversions of subterranean water, etc. right enjoj^ed by the several proprietors over which they flow is, and always has been public and notorious ; that the enjoyment has been long continued, in ordinary cases, indeed, time out of mind and unin- terrupted, each man knowing what he receives and what has always been received from the higher lands, and what he transmits and what has been always transmitted to the lower. lb. But in the case of a well sunk by a proprietor in his own land, the water which feeds it from a neighboring soil does not flow openly in the sight of the neighboring pi'oprietor, but through the hidden veins of the earth beneath its surface : no man can tell what changes these iinderground sources have undergone in the progress of time, it may well be, that it is only yesterday's date, that they first took the course and direction which enabled them to supply the well ; again no pro- prietor knows what portion of water is taken from beneath his own soil, how much he gives originally, or how much he transmits only, or how much he receives ; on the contrary until the well is sunk, and the water collected by draining into it, there cannot properly be said, with reference to the well, to be any flow of water at all. lb. In the absence of a right specially acquired, the owner of the soil through which a subterranean current of water passes has no such property in it that he can maintain an action for its diversion or disturb- ance. Brown V. llUus, 27 Conn. 84 ; Johnstown Cheese Manuf. Co. V. Veghte,&% N. Y. 16 ; S. C, 25 Am. Rep. 125. Thus, one who digs a well, in good faith, on his own land to obtain water for domestic uses, is not liable for the consequent diversion of unknown subterranean percolations or currents from the spring of an adjoining owner. Chase V. Silverstone, 62 Me. 175 ; S. C, 16 Am. Eep. 419 ; Village of Delhi V. Youmo/ns, 45 N. Y. 362 ; S. C, 6 Am. Eep. 100. So a land-owner may drain, mine, or quarry, though in so doing he interferes with the flow of water in hidden, unknown, underground channels. Popplewell V. HodUnson, L. E., 4 Exch. 248, 251 ; Wilson v. Waddell, L. E., 2 App. Cas. 95 ; S. C, 19 Eng. Eep. 1 ; Fletcher v. Srnith, L. E., 2 App. Cas. 781 ; S. C, 21 Eng. Eep. 38 ; Frazier v. Brown, 12 Ohio St. 294; Clark V. Conroe, 38 Vt. 469 ; Hanson v. MoCue, 42 Cal. 303 ; S. C, 10 Am. Eep. 299. But the contrary has been held in case' of interfer- ence with a known and well-defined subterranean channel. Taylor v. Welch, 6 Oregon, 198. In some cases and in some States it is held that the land-owner may not negligently or maliciously divert even an unknown subterranean stream to the damage of an adjoining proprietor. Haldeman v. Bruchhard, 45 Penn. St. 514 ; Fletcher v. Smith, L. E., 2 App. Cas. 781 ; S. C, 21 Eng. Eep. 38. And see 4 "Wait's Act. and Def. 516 ACTIONS FOR TOETS OR WRONGS. Diversions of subterranean water, etc. 739. But such is not the law of this State. It has been finally settled that the owner of lands is entitled to the enjoyment and use of all springs hidden beneath the surface of the soil, and flowing therein by means of subterranean and unknown channels, for all legitimate and proper purposes ; and if in the enjoyment of this legal right he does an act upon his own land, lawful in itself, and M'hich does not infringe upon any legal right of his neighbor, although it operates to the latter's injury by diminishing his supply of water or otherwise, he does not be- come liable to his neighbor for such injury, merely because the act done was inspired by wrong and malicious motives. Oar courts will not inquire into the motives of a persbn in the enforcement of a legal right. PMps V. Nowlen, 72 N. Y. 39 ; S. C, 28 Am. Rep. 93. In the case last cited, the defendant had a mineral spring on his own land surrounded by an embankment, partly natural and partly artificial, which raised the water in a well on the plaintiff's land. This water the plaintiff conducted, by means of a pipe laid under groimd, from the well to bath-house and fountain. The defendant, with knowl- edge of these facts, simply with intent to divert the water from the plaintiff's well, and not for his own benefit, dug a ditch through the embankment surrounding the spring on his own land, restoring the water to its natural condition, and so lowering the water in the plaint- iff's well as to cut off the supply of water of the bath-house and foun- tain, to plaintiff's injury. In an action to recover damages for the ma- licious act of the defendant, and to restrain the commission of other similar acts, it was held that the action was not maintainable. See, also. Old Colony R. R. v. Miller, 125 Mass. 1 ; S. C, 28 Am. Rep. 93 ; Chatfield v. Wilson, 28 Yt. 49 ; South Rogalton Bank v. Suffolk Bank, 27 id. 505 ; Harwood v. Benton, 32 id. 737. The rule that where one, by excavations upon his own land, without interfering with any known water-courses, withdraws water from his neighboi-'s well or spring by percolation is- not liable for the injury, has no application where there is a grant or covenant between the par- ties and the acts complained of are in derogation of the grant or in vio- lation of the covenant. Johnstown Cheese Manuf. Co. v. Veghte, 60 N. Y. 16 ; S. C, 25 Am. Rep. 125. But a limited and specific grant of the right to dig and stone up a certain spring, and conduct the water therefrom through the grantor's land, by a specified pipe, to the grantee's house, with covenant of warranty, does not render the entire premises servient to the easement ; and the grantor may lawfully sink another spring, but twenty-seven feet distant, although the effect is to render the first one useless. Bliss v, Greeley, 45 N. Y. 671 ; S. C, 6 Am. Rep. 157. ACTIONS FOR TOETS OE WEONGS. 517 Obstruction of water, etc. Obstruction of water, etc. An action for the diversion of a water- course is grounded ou the deprivation of water, and hence, if the party complaining is deprived of the water by any other means, the law will give a remedy. It is as illegal to detain water unreasonably as it is to divert it, for, though all persons have an equal right to erect hydraulic works on their own land, yet they must so construct them, and so use tlie water, that all persons below may participate, without interruption, in the enjoyment of the water. If a mill-owner of an upper mill shuts down his gates, and detains the water for an unreasonable time, and thus deprives a lower mill-owner of a fair participation of the benefits of the stream, he is answerable therefor in damages. Merritt v. Briiikerhoff, 17 Johns. 306, 321, 322. The court said : " The common use of the waters of a stream, by persons having mills above, is frequently if not generally at- tended with damage and loss to the mills below ; but that is incident to that common use, and, for the most part, unavoidable. If the injury is trivial, the law will not afford. redress ; because every person who builds a mill does it subject to this contingency. The person owning an upper mill on the same stream has a lawful right to use the water, and may apply it in order to work his mills to the best advantage, subject, how- over, to this limitation, that if, in the exercise of this right, and in con- sequence of it, the mills lower down the stream are rendered useless and unproductive, the law, in that case, will interpose and limit this common right, so that the owners of the lower mill shall enjoy a fair participation ; and if thereby the owners of the upper mill sustain a pai'tial loss of business and profits, they cannot justly complain, for this rule requires of them no more than to conform to the principle upon wliich their right is founded. It cannot, then, be admitted that the defendants may use the water as they please, because they have a right to a common use, although their works may require all the water, in order to derive the greatest profit. The plaintiffs' rights must be re- garded ; they must participate in the benefits of the stream, to a reason- able extent, although the defendants' profits may be thereby lessened. If the defendants insist on the unrestricted use of the water, and appro- priate it accordingly, and this proves destructive to the mills below, the lawin that case allows the party injured a compensation in damages, to the extent that, under all circumstances, shall be considered an equivalent. In that event, the plaintiffs receive no more than they would have i-ealized by their business, had the defendants permitted the water to flow in a reasonable manner." A person has a right to erect a dam across a stream upon his land, 518 ACTIONS FOR TORTS OR WRONGS. Obstruction of water, etc. and such machinery as the stream, in its ordinary stages, is adequate to propel ; and if tlie stream, in seasons of drought, becomes inadequate for that purpose, he has the right to detain the water for such reasona- ble time as may be necessary to raise the requisite head, and accumulate such a quantity as will enable him to use the water for the purpose of his machinery. Gould v. Boston Duck Co., 13 Gray, 442 ; Clinton, v. Myers, 46 N. Y. 511 ; S. C, 7 Am. Rep. 373; Bulla/rd v. Saratoga Victory Manuf. Co., 11 N. Y. 525 ; Williamson v. LocMs Creek Com. Co., 78 K C. 156. The flow of water in a stream may be injuriously affected in other ways than by merely building a dam above on the stream and thus de- taining the water. And where a person built a tannery on a stream, above a grist-mill, and in the exercise of his business as a tanner, he tlirew large quantities of ground tan bark into the stream, which floated down into the grist-mill pond, and flUed the race, got into the flume, and injured tlie owner of the grist-mill by impeding its operations, this was held actionable. Thomas v. Brachney, 17 Barb. 654. So where the owner of a flax-mill upon a natural stream threw flax shives and ref- use matter into the stream which impaired the use of the plaintiff's pond and grist-mill, it was held to be actionable. C Riley v. McChesney, 3 Lans. 278 ; S. C. affirmed, 49 N. Y. 672. And see Ronsee v. Ham- mond, 39 Barb. 89. But it is held that a mill-owner had the right, in a reasonable manner, to discharge the waste from his mill, such as saw- dust, shavings, etc., into the stream in the ordinary course of using such mill. Jacols v. Allard, 42 Vt. 303 ; S. C, 1 Am. Rep. 331. And whether the use of a stream to carry off the mill-owner's waste is rea- sonable or not is a question of fact for the jury, depending upon the eircTimstances of the particular case, such as the size and character of the stream, and for what purpose it is used, the extent of the pollution, the benefit to the manufacturer, and the injury to the other riparian owners. Snow v. Parsons, 28 Yt. 459 ; Prentice v. Oeiger, 9 Hun, 350 ; Hayes v. Waldron, 44 N. II. 580. The owner of land, through which a stream passes, has no right to make such a use of it as to send it down to an owner below poisoned or corrupted. The water may be used in connection with a tan-yard or bark- mill, if so mucli only is taken away as is necessary for this piirpose ; but the residue cannot legally be soiled by an admixture vyith foreign substances, to the injury of a proprietor below. Magor v. Chadwick, 11 Ad. & El. 571 ; Howell v. McCoy, 3 Rawle, 256. The right of the owner of land through which a stream flows to the use and enjoyment of the water as it was wont to flow extends as well to the quality as ACTIONS FOE TORTS OK WRONGS. 519 Obstruetioa of water, etc. to the quantity of the water. If, therefore, an adjoining proprietor corrupts the water, an action upon the case lies for the injury. Sea- man V. Lee, 10 Hun, 607 ; Huhnmn v. Bleaching Co., 14 N. J. Eq. 335 ; Wood v. Waiod, 3 Exch. 748 ; Crossley v. Lightowler, L. R., 3 Eq. 279 ; L. R., 2 Ch. App. 478 ; Wasliburn v. Oilman, 64 Me. 163 ; S. C, 18 Am. Rep. 246 ; Richmond Manuf. Co. v. AUantic Be Laine Co., 10 R. I. 106 ; S. C, 14 Am. Rep. 658. Thus, the plaintiff purchased a tract of land in the coal region, and erected a residence upon it, a leading inducement to the purchase being a pure mountain stream of water running through the land. He con- structed a pond for fish and ice upon the stream, and from it supplied a cistern, a ram, and a tank in the attic of his house. Subsequently the de- fendants opened a colliery on the stream two miles above, which cor- rupted the water and spoiled it for the plaintiff's uses, killed the fish and shrubbery, corroded the pipes and compelled the plaintiff's abandon- ment of the water, — and it was held that the plaintiff had a right of action therefor, and that a nonsuit was error. Sanderson v. Penn. Coal Co., 86 Penn. St. 401; S. C, 27 Am. Rep. 711. Any person who is interested in the use and enjoyment of the water of a running stream is entitled to maintain an action for any special injury which he may sustain from the corruption of the water by any other person directly or indirectly, whatever may be the cause, the pre- tense, or the occasion. Carhart v. Auburn Gas-light Co., 22 Barb. 297, 312. In the case last cited the plaintiffs were carpet manufacturers, and they occupied premises which were situated on a river whose waters they had a right to use, and they did use them for the purpose of supplying their works. The defendants were gas manufacturers, and their works were situated upon and near the river, but above the plaintiffs' works. The defendants, in operating their works, permitted quantities of noxious and offensive substances and materials, and cer- tain tarry and oily substances, to flow from their gas-works into the river; and these substances mingled with the water and adulterated it as it flowed to the plaintiffs' works, and injured the wool and other materials used by them in their business, and this was held to be an injury for which an action could be maintained by the plaintiffs. And it was held that it constituted no defense to show that the ground on which the gas-works stood was incompact and porous, and that it was percolated by the waters of the river without the agency or fault of the defendants. It has long been settled that a glove or mitten manu- factm'er or leather-dresser is liable to an action if he builds his lime 520 ACTIONS FOR TOETS OE WEONGS. Flowing lands above. pit or vats so near a stream as to corrupt the water to the injury of a proprietor lower down the stream. Year Book, Hen. 2, chap. 6. So the erection of a cess-pool so near a well as to contaminate the water therein is actionable. Norton v. 8cholefield, 9 Mees. & "Wels. 665. So the erection of a tan-yard has been held to be actionable, if it has the effect of rendering the water of a stream unwholesome, whether the riparian proprietor below uses it for distillation, or for culinary or domestic purposes. Howell v. McCoy, 3 Eawle, 256. Flowing lands above. The law does not permit mill-owners or other riparian proprietors to use a water-course in such a maimer as to inundate or overflow the lands of other riparian proprietors or land- owners whose lands are situated above on the stream. Where a mill-owner below has had the use of water in his pond at a certain height for twenty years or upwards, a grant for using it at that height will be presumed ; but there is no presumption that it may be used in a different manner by raising the height of the water. Stiles V. Hoolcer, Y Cow. 266. And if the mill-owner repairs his dam, which has kept the water at such certain height, so that the water is raised to a greater height than formerly, and so as to flow lands above which were not flowed before the repairs, he will be liable to an action for the resulting damages to the injured party. lb. This is the rule even where the dam was not made any higher by the repairs, but was so repaired as to raise the general level of the water ; for, in such cases, the question is as to the height of the water, not as to the height of the dam. lb. ; Mardy v. Shults, 29 N. Y. 346. But where a mill-owner has built a dam and maintained it at a cer- tain height for more than twenty years, and the water has also been kept up to a certain height for that length of time, such mill-owner may repair his dam, so as to make it tighter, although the effect may be to keep the water more constantly at the upper level. Hyndu v. Shultz, 39 Barb. 600 ; Cowell v. Thayer, 5 Mete. 253, 259. Merely making the dam more firm and tight than it was before, so as to enable the mill-owner to enjoy the full benefit of his water privilege, will not create a liability for damages to the owners of lands above, provided the water is not raised so as to overflow lands which were not previ- ously covered. lb. Even if one tenant in common of a water-course upon which a mill is situated erects a dam below on the same water-course, upon his several estate, and thereby flows the common property to the injury of his co-tenant, the latter may maintain an action against him. Pillsbury V. Moore, 44 Me. 154. And where the proprietor of a mill, and of a ACTIONS FOE TOETS OE WEONGS. 521 Flooding lands below. definite proportion of the water-power or flow of water in a stream, makes a change in a sluiceway which occasions an increase of back- water, injurious to the mill of a neighboring owner who is also part owner of the water-power, the latter may maintain an action therefor. JIunroe v. Gates, 48 Me. 463. Several owners of distinct parcels of land adjoining a stream may join in an action to abate and to restrain the continuance of a nuisance consisting of piers set in the bed of the stream below, which causes the water to set back upon their lands. Gillespie v. Forrest, 18 Hun, 110. Flooding lands below. The same principle which forbids one man to flow the lands of his neighbor above him on a stream is equally efficient to prohibit him from unlawfully flooding his neighbor's lands below liim on the stream. The law permits the erection of dams upon streams for the various purposes and necessities of life, such as the working of mills, manu- factories and the like, as well as for other lawful uses. And in the exercise of such rights, it must necessarily happen that the usual course of the stream will be at times retarded or entirely stopped, while at other times the flow of water will be greater than the natural stream. But when the injury does not exceed that which results from a proper use of the water for such lawful purposes, the party sustaining an in- jury therefrom must submit to it without complaint, since the law will not give any redress ; and one reason is, because the public advantage derived from such structures more than outweighs the injury sustained by a private citizen. But another reason is equally sufficient, which is, that every riparian owner takes his land subject to the right of every person on the stream to use the water in a proper manner, and at proper times. But this rule does not extend to the length of permitting every riparian owner to use or abuse this privilege in whatever manner he may see fit to do. For, if a mill-owner shuts his gates and detains the water until it accumulates in large quantities, and he afterward per- mits or causes it to be discharged in large, unusual and unreasonable quantities, so as to injure a mill-owner below, or so as to flood the lands of a land proprietor lower down on the stream, he will be liable to an action for the damages sustained by the injured party. Merritt v. BrinkerJwff, 17 Johns. 306 ; Gerrish v. New Market Manuf. Co., 30 N. H. 478. The right to build, maintain and use a dam is not merely restricted to the point of I'equiring it to be properly used ; but the law also re- quires that tlie dam itself shall be so constructed that it shall be safe and sufficient for the purpose intended. And the degree of care which 522 ACTIONS FOR TORTS OR WRONGS. Back water upon a mill above. a party is bound to use in the construction of a dam is in proportion to the extent of the injury which will be likely to result to other persons in case the dam should prove insufficient. Mayor, etc., of New York V. Bailey, 2 Denio, 433 ; S. C, 3 Hill, 531. It is not enough that it is so constructed as to be sufficient to resist ordinary floods ; for, if the stream is occasionally subject to great freshets, those must also be guarded against. Such a measure of prudence is required, as a dis- creet person would use if the whole risk were his own. lb. ; Gray v. Harris, 107 Mass. 492 ; S. C, 9 Am. Rep. 61. "When water is raised in a stream above its natural banks, and its overflow prevented by artificial embankments, yet if, by the pressure of the water upon the natural banks of the stream, percolation takes place so as to drown the adjoining lands of another, an action will lie for the damage thereby occasioned. It matters not whether the damage is occasioned by the overflow of or percolation through the natural banks, so long as the injury is occasioned by an improper interference with the natural flow of the stream. Pixley v. Clarh, 35 N. T. 520. Back water upon a mill above. The principle of law which for- bids flowing lands above on a stream, ante, 520, is equally applicable to the case of causing water to set or flow back so as to injure a mill above. And it is frequently, if not generally, the case that greater injury results to a mill above than the mere injury to lands situated there. " Without the consent of the other proprietors, who may be affected by his operations, no proprietor can either diminish the quantity of water which would descend to the owner below, nor throw the water hack upon the proprietors above. Every proprietor who claims either to throw the water back above, or to diminish the quantity which is to descend below, must, in order to maintain his claim, either prove an actual grant or license from the proprietors affected by his operations, or must prove an uninterrupted enjoyment of twenty years." Leach, V. Oh., Wright v. How, 1 Sim. & Stu. 203. Whenever a mill-owner or a land proprietor below builds a dam which raises the water-course so as to cause the wheels of a miU above to be stopped or materially impeded in their operation, an action may be maintained against the party causing the injury. See Brown v. Bowen, 30 N. Y. 519 ; Norway Plains Co. v. Bradley, 52 N. H. 86 ; Orover v. Shall, 42 Penn. St. 58. In one case the court said: "Any impediment in the stream, caused by the defendant's dam, by whicli the plaintiff's mill is stopped from grinding in any state of the water, or made to grind slower or worse than it otherwise would, is an injury for which the plaintiff would be entitled to damages." Buts v. Ihrie ACTIONS FOE TOKTS OE WEONGS. 523 Interference with surface water. 1 Eawle, 218. And see Stiles v. Hooker, 7 Cow. 266 ; Hodges v. Raymond, 9 Mass. 316 : Sumner v. Tileston, 7 Pick. 198 Gowles v. Kidder, 24 N. H. 364. Persons building a dam in pursuance of leg- islative authority are liable for injuries caused by back-water from the dam to an ancient mill above. Lee v. Pemhrohe Iron Co., 57 Me. 481 ; S. C, 2 Am. Eep. 59. But a person may repair and stop the leaks in an old dam, or build a new one of the same height, and not be liable for the increased back-flow of water. Maguire v. Baker, 57 Ga. 109. See Barber v. Nye, 65 N. Y. 211. In an action for damages for the overflowing of the plaintiff's land by back-water, caused by the defendant's dam, the plaintiff may prove that his land has been so injured as to impair its future value, and may recover damages for injury occasioned by the back-water percolating through the soil and rendering the land swampy. Marsh v. Trullinger, 6 Oregon, 356. The question whether the water in a stream sets or flows back so as to injure the mill above is always a question of fact, to be deter- mined from the evidence in the case. And such questions frequently afford scope for the exercise of a high degree of skill and experience in matters of natural science and philosophy. Interference with surface water» Water-courses are the means which nature has provided for the drainage of the country through which they pass ; and from the natural servitude of lands upon a water- course to receive the waters flowing therein from the lands above springs the right of the owner of the superior heritage to have the water from his lands, of which the water-course is the natural outlet, drained into and carried off thereby, and the duty of the owner of the inferior and servient tenement not to interfere with or obstruct its passage. But the right to the use of the water-course for the discharge of surface or other waters exists only in respect to waters of which the water-course is the natural outlet, and it does not justify the diversion and turning of the water of one stream into another, thereby subjecting lands on the stream into which the diversion is made to the servitude or easement of a water-way for the water thus discharged into it. But the right of the owner of lands through which a water-course runs to have it kept open and to discharge into it the surface water which naturally flows to it is not limited to the drainage and discharge of surface water into the stream in the same precise manner as when the land was in a state of nature, and unchanged by cultivation or improvements. The owner of the lands drained by the water-course may change and control the natural flow of the surface water, and by ditches or other- 524 ACTIONS FOR TORTS OR WRONGS. Interference witli surface water. wise accelerate the flow, or increase the volume of water when it reaches the stream ; and if he does this in the reasonable use of his own prem- ises, he exercises only a legal right, and incurs no liability to a lower proprietor. McCormick v. Horam, 81 JV. Y. 86; Waffley. N. Y. C. R. B. Co., 53 id. 11 ; Miller v. Laubach, 47 Pemi. St. 154. This right is subject to the qualification that one owner cannot, by artificial arrangements on his own land, concentrate and discharge into the stream surface water in quantities beyond the natural capacity of the stream, to the damage of the other owners. McGormicleY. Horan, 81 ]Sr. Y. 86 ; Noonan v. City of Albany, 79 id. 470 ; S. C, 35 Am. Rep. 540. A municipal corporation has, in this respect, no greater right than an individual. lb. A municipal corporation has no right to construct a gutter where no water-way existed before, and in it conduct the surface water of a whole ward, which before run in another direction, directly to and upon the lands of a citizen. Byrnes v. Qity of Cuhoes, 67 N. Y. 204 ; Bastable v. City of Syracuse, 8 Hun, 587. Nor, ^s between two individuals owning adjacent lands, can one con- struct ditches or drains on his own land, thereby collecting the surface water over a large territory, and causing it to flow in a single channel upon an adjoining owner without responsibility for the damages thereby occasioned. Foot v. Bronsmx, 4 Lans. 47 ; Dickinson v. City of Wor- cester, 7 Allen, 22 ; Livingston v. McDonald, 21 Iowa, 160 ; Bents v. Armstrong, 8 Watts & Serg. 40. See Jutte v. Hughes, 67 N. Y. 267; McCormick v. Kansas City, St. Joseph, etc., It. B. Co., 70 Mo. 359 ; S. C, 35 Am. Rep. 431. The rule appears to be well settled by au- thority, that while the owner of lands, in the reasonable use of his premises, may lawfully use a natural water-course to its full carrying capacity, as the outlet of surface waters artificially collected upon his lands and discharged thereon, A\'here such water-course had theretofore been the natural outlet for such water, he cannot legally, by artificial means, increase the volume of the water beyond the carrying capacity of such stream, to the damage of a lower proprietor, nor can he col- lect and discharge such waters upon his neighbor's land at a point where no natural outlet before existed. It may be stated as a general rule, that when the situation of two adjoining fields is such that the water, falling or collected by melting snows, upon one naturally descends upon the other, it must be suffered by the lower one to be discharged upon his lands if desired by the owner of the upper one. Kauffman v. Griesemer, 26 Penn. St. 407 ; Martin v. Riddle, id. 415. But this general rule must be somewhat qualified. The owner of the higher field is not obliged in all cases to ACTIONS FOE TOETS OK WEONGS. 525 Fish and game laws. permit the surface water to flow upon the lower field. He has the right to level, grade, drain and improve his lands ; and if by so doing the surface water is retained upon his own land, or dispersed in other directions so as not to flow upon the lower adjacent fleld, the owner of the latter has no remedy against him. So the owner of the lower field has the right, in its improvement, to fill it up, and if by so doing the surface water of the higher field is prevented from flowing thereon, the owner of the latter is without remedy. Ycmderwiele v. Taylor, 65 N. Y. 341 ; Lynch v. The Mayor, 76 id. 60, 63 ; BarUey v. Wil- cox, 19 Hun, 320; Ooodale v. TuUle, 29 K Y. 459; ante, p. 513. It is undoubtedly true that the rule which would be applicable to surface water in agricultural districts must be somewhat modified in its application to city lots. Such lots are useful only for building, and the owners must be permitted to improve them for building purposes. The owner of a lower lot who desires to build must be permitted to fill it up, to ditch it, to construct walls, or to build his house so as to protect his lot against the surface water of the adjoining lot ; and in thus preventing the flow of surface water upon his lot he incurs no liabiHty to the owner of the higher lot. Vanderwiele v. Taylor, 65 ]Sr. Y. 341. It must be remembered, however, that the rules and principles above stated apply to interference with the natural flow of surface water in the proper meaning of that term, and not to the flow of water collected in natural permanent streams or water-courses ; and to the natural riglits of adjoining owners in respect to the flow of surface water, irre- spective of any contract rights which they may have therein. § 14. Fish and game laws. The protection and preservation of game has been secured by law in all civilized countries, and has been justified on many grounds, one of which is for the purpose of food. The measures best adapted to secure this are for the legislature to determine, and the courts have no power to review its discretion. In the exercise of this discretion, the legislature of this State has, from time to time, enacted laws, having for their object the preservation of fish and game, and provided remedies, civil and criminal, for their en- forcement. The general provisions of the existing laws relating to the preserva- tion of fish and game are as follows : " No person shall kill or chase any wild deer in any part of the State, save only during the months of August, September, October and November in any year. No person, corporation, association or company shall sell, expose for sale, transport, or have in his or her pos- 526 ACTIONS FOR TORTS OR WRONGS. Fish and game laws. session in this State, after the same has been killed, any wild deer, or fresh venison, save only during the months of August, September, October and November. No person shall at any time in this State kill any fawn during the time when it is in its spotted coat, or have in his or her possession the carcass or skin of any such fawn after the same shall have been killed. No person shall in any part of this State set any trap, spring-gun, or other device, at any artificial salt-lick, or other place, for the purpose of trapping and killing wild deer. It shall not be lawful to pursue deer with dogs in any county in this State, except from the fifteenth day of August to the first day of November. It shall not be lawful to pursue deer with dogs in the county of St. Lawrence at any time. It shall be lawful for any person to shoot or kill any dog while in actual pursuit of any deer in violation of the pro- visions of this act. It shall not be lawful for any person to kill, or cause to be killed, any wild deer in the counties of Suffolk and Queens, at any time within five years from the passage of this act. Any person offending against any of the preceding provisions of this section shall be deemed guilty of a misdemeanor, and in addition thereto shall be liable to a penalty of $50 for each wild deer or fawn so killed, or pursued, or trapped, and for every spring-gun so set, or wild deer or fawn skin, or fresh venison had in his or her possession, and may be proceeded against therefor in any county of the State in which the offender or prosecutor may reside." Laws of 1879, chap. 534, § 1. "No person' shall, at any time or place within this State, take, chase with dogs, or kill any moose, nor shall any person sell or expose for sale, or have in his or her possession, any moose after the same has been so taken or killed. Any person violating this section shall be deemed guilty of a misdemeanor, and in addition thereto shall be liable to a penalty of $50 for each ofifense." Id., § 2. " No person shall kill_wild deer by crusting, or enter any place where wild deer are yarded with intent to kill or destroy the same at any time. Any person offending against any of the provisions of this section shall be deemed guilty of a misdemeanor, and in addition thereto shall be liable to a penalty of $100 for each wild deer so killed or de- stroyed." Id., § 3. " No person shall kill or expose for sale, or have in his or her pos- session after the same has been killed, any wild duck, goose or brant, in any of the waters of this State, between the first day of May and the first day of September, except in the waters of Long Island none of said birds shall be killed between the first day of May and the first day of October. Any person violating any of the provisions of this sec- ACTIONS FOE TORTS OE WEO^^GS. 527 Fisli and game laws. tion shall be deemed guilty of a misdemeanor, and in addition thereto shall be liable to a penalty of $25 for each and every wild duck, goose or brant kiUed or had in his possession ; and any person who shall at any time kill any of said birds 'between sunset and daylight, or pursue or fire at any of said birds with the aid of any light or lantern, shall be deemed guilty of a misdemeanor, and in addition thereto shall be liable to a penalty of $50 for each offense against this provision. And any person foimd between sunset and sunrise on the water with a gun and lantern, in the act of attempting to pursue, fire at or kill any such birds, shall be deemed guilty of a violation of this section." Id., § i. " No person shall at any time kill any wild duck, goose or brant, with any device or instrument known as a swivel or punt-gun, or with any gun other than such guns as are habitually raised at arm's length and fired from the shoulder, or use any net, device or instrument or gun other than aforesaid, with intent to capture or kill any such birds. Any person violating any of the provisions of this section shall be deemed guilty of a misdemeanor, and in addition thereto shall be liable to a penalty of $50." Id., § 5. "No person shall use any floating battery, machine or other device, whereby the gunner is concealed, for the purpose of killing any wild fowl, or shoot out of any such floating battery, machine or device, at any wild goose, brant or duck, in any of the waters of this State, or use any decoy, or construct any bough-house at a greater distance than twenty rods from the shore, for the purpose of shooting at or killing any such birds. Any person violating any of the provisions of this section shall be deemed guilty of a misdemeanor, and in addition thereto shall be liable to a penalty of $50 for each offense. But nothing in this section shall apply to the waters of the G-reat South bay, west of Smith's Point, or the waters of Peconic bay, or Shinnecock bay, or Lake Ontario, or the river St. Lawrence, or the Hudson river below Albany." Id., § 6. "No person shall sail for any wild fowl, or shoot at any wild goose, brant or duck, from any vessel propelled by steam or sails, or from any other structure attached to the same, in any of the waters of this State except Long Island sound, Lake Ontario, and the Hudson river below Nyack. Any person violating any of the provisions of this section shall be deemed guilty of a misdemeanor, and in addition thereto shall be liable to a penalty of $10." Id., § 7. "No person shall kill, expose for sale, or have in possession after the same has been killed, any quail, between the first day of January and the first day of November, except as hereinafter provided ; no person shall kill or expose for sale, or have in possession after the same has 528 ACTIONS FOE TORTS OR WRONGS. Fish and game laws. been killed, any hare or rabbit, between the first day of February and the first day of November, nor at any time kill or hunt any hare or rabbit with ferrets. This shall not prevent the owners or occupants of nurseries or orchards, in any of the counties of this State, from trapping or hunting hares or rabbits, with ferrets or otherwise, within the limits of said nurseries or orchards, or any forest or field adjoining such nur- series or orchards, and the possession of any hare or rabbit may be excused by any person proving the same to have been caught or killed within the limits aforesaid. No person shall kill any quail in the counties of Montgomery, Schenectady, Saratoga or Albany within two years from the passage of this act. Any person violating either of the provisions of this section shall be deemed guilty of a misdemeanor, and in addition thereto, shall be liable for any violation of the first pro- vision to a penalty of $25 for each quail, hare or rabbit so killed, ex- posed for sale, or had in possession." Id., § 8, as amended by Laws of 1880, chap. 58i, §1. " No person shall kill or expose for sale, or have in his or her posses- sion after the same has been killed, any woodcock, between the first day of January and the first day of September, in the counties of Oneida and Herkimer, and in the other parts of the State between the first day of January and the first day of August in each year, except as herein- after provided. It shall not be lawful for any person to kill or expose for sale, or have in his or her possession after the same has been killed, any black or gray squirrel, between the first day of February and the first day of August in each year. Any person violating either of the provisions of this section shall be deemed guilty of a misdemeanor, and in addition thereto shall be liable to a penalty of $25 for each bird or animal so killed or had in possession." Laws of 1879, chap. 53i, § 9. "No person shall kill or expose for sale, or have in his or her posses- sion after the same has been killed, any ruffed grouse, commonly called partridge, or any pinnated grouse commonly called prairie chicken, be- tween the first day of January and the first day of September, except as hereinafter provided. Any person violating any of the provisions of this section shall be deemed guilty of a misdemeanor, and in addition thereto shall be liable to a penalty of $25 for each bird so killed or had in possession." Id., § 10. "No person shall, at any time or place within this State, take or kill any ruffed grouse, commonly called partridge, or any pinnated grouse, commonly called prairie chicken, or any spruce grouse, commonly called Canada partridge, or any quail, with any net, trap, or snare, or set any such net, trap, or snare for the purpose of taking or killing any of such ACTIONS FOR TORTS OR WRONGS. 529 Pish and game laws. birds ; nor shall any person willfully sell, or expose for sale, or have in his or her possession any of the said birds after the same shall have been so taken or killed. Any person violating any of the provisions of this section shall be deemed guilty of a misdemeanor, and in addition thereto shall be liable to a penalty of $10 for each bird so taken and killed, or had in his possession. And it shall be lawful for any person to take and destroy any such nets, traps or snares whenever found set." W-, § 11. " No person shall at any time, in this State, kill or expose for sale, or have in possession after the same is killed, any eagle, woodpecker, nighthawk, yellow-bird, wren, martin, oriole, or any song bird, under a penalty of $5 for each bird so killed, exposed for sale or had in possession." Id., § 12; as amended by Laws of 1880, chap. 584, § 2. " No person shall kill or expose for sale, or have in possession after the same has been killed, any robin, meadow lark, or starling, save only during the months of October, November, December, under a penalty of $5 for each bird so killed, exposed for sale, or had in possession." Id., § 13, as amended by Laws of 1880, chap. 584, § 3. " Tlie last two sections shall not apply to any person who shall kill any bird for the purpose of studying its habits or history, or having the same stuffed, and set up as a specimen ; or to any person who shall kill on his own premises any robins in the act of destroying fruit or grapes." Id., § 14. " No person shall willfully destroy or rob the nest of any wild bird whatever, except crows, blackbirds, hawks and owls, save only where it may be necessary to protect dwelling-houses, or prevent their deface- ment. Any person violating this section shall be deemed guilty of a misdemeanor, and in addition thereto, shall be liable to a penalty of $5 for each offense." Id., § 15. " Any person who shall knowingly trespass upon cultivated or in- closed land for the purpose of shooting or hunting any game protected by this act, or shall have taken any fish from private ponds or private streams not stocked in whole or in part by the State, or after public notice has been given by tlie owner thereof as provided in the follow- ing section, shall be liable to such owner or occupant in addition to the actual damages sustained in exemplary damages to an amount not ex- ceeding $25." Id., § 16. " The notice referred to in the preceding section shall be given by erecting and maintaining sign-boards at least one foot square upon every fifty acres of land upon the lot -lines thereof, or upon the shores or bank of any lake, stream or pond in at least two conspicuous places on the 67 530 ACTIONS FOR TOETS OE WEONGS. Fish and game laws. premises ; such notices to have appended thereto the name of the owner or occupant, and any person who shall tear down, or in any way deface or injure any such sign-board, shall be guilty of a misdemeanor, and in addition thereto shall be liable to a penalty of $25." Id., § 17. " 'No person shall at any time catch any speckled trout with any device save that of angling, except in waters which are wholly private, and only then by permission of the owner thereof ; nor shall any person set or draw any net, or seine of any description, or use any set line in any lake, pond or stream inhabited by brook trout, or have on the shores thereon any net, seine, set-line, or other unlawful device for the taking of iish, except as above provided. And no person shall at any time or in any way catch any speckled trout, or salmon trout through the ice, except in waters wholly private, prior to the first day of April. Any person who shall offend against any of the provisions of this section shall be deemed guilty of a misdemeanor, and in addition thereto shall be liable to a penalty of $25 for each offense ; and all nets, seines and other devices forbidden to be used by this section are hereby declared contraband, and any person finding the same in any place where they are forbidden to be used is authorized to destroy such contraband articles, and no action for damages shall lie against him for such destruc- tion." Id., § 18. " No person shall kill, or expose for sale, or have in his or her pos- session after the same has been killed, any speckled trout, save only from the first day of April to the first day of September. Any person violat- ing any of the provisions of this section shall be deemed guilty of a misdemeanor, and in addition thereto shall be liable to a penalty of $35 for each trout so killed, exposed for sale or had in possession." Id., §19. " No person shall kill or expose for sale, or have in his or her pos- session after the same has been killed, any salmon trout or lake trout, caught in the inland lakes of this State, in the months of October, No- vember, December, January, February, and March, and in Lake George the additional month of April. Any person violating any of the pro- visions of this section shall be deemed guilty of a misdemeanor, and in addition thereto shall be liable to a penalty of $10 for each fish so killed, exposed for sale or had in possession." Id., § 20. " No person shall catch or kill any black bass in the waters of Lake Mahopac or Dutchess county, between the first day of January and the first day of July, or Lake George between the first day of January and the twentieth day of July, or catch, kill or expose for sale, or have in his or her possession after the same has been killed, any black bass or striped ACTIONS FOR TORTS OR WRONGS. 531 Fish and game laws. bass weighing less than one-half of a pound at any time, or any black bass, Oswego bass, or Musealonge in any other waters of this State, between the first day of January and the first day of June, unless alive for artificial propagation, or the stocking of other waters, except that bass and musealonge may be caught in the St. Lawrence, Clyde, Seneca and Oswego rivers, Lake Erie, Lake Ontario, Lake Oonesus, and the Niagara river above Niagara falls, on the American side, between the twentieth day of May and the first day of January ; nor shall any person catch or kill any black bass in the water of Schroon lake or river , or Paradox lake in the counties of Essex or Warren between the first day of January and the first day of July. Any person violating any of the provisions of this section shall be deemed guilty of a misdemeanor, and in addition thereto shall be liable to a penalty of $10 for each fish." Id., § 2L " No person shall catch any bass, trout or other fish in any of the waters of this State by shutting or drawing off any portion of said waters, nor shall any person take any fish in the waters of the Tonawanda creek between Monlton's dam, in the county of Genesee, and Cotton's dam in the county of Wyoming, for the period of five years after the passage of this act. Any person violating this section shall be deemed guilty of a misdemeanor, and in addition thereto shall be liable to a penalty of $25 for each offense." Id., § 22. " No person shall kill or catch, or attempt to kiU or catch, any fish except minnows in the waters of Lake Ontario, on the American side thereof, for the distance of three miles from the mouth of the Niagara river, or in the Onondaga, Oneida, Seneca or Cross lakes, or in any of their outlets or tributaries, or in the American waters of the Niagara river, above Niagara falls, in any way or manner, or by any device whatever, except with that of hook and line, and any person catching or killing any fish except minnows, in any of the above-named waters, shall be liable to a penalty of $100, for each and eveiy offense. No person shall kill or catch, or attempt to kill or catch, any fish except minnows, bull-heads, eels, suckers and catfish in any other of the fresh waters or in any of the canals of this State, or in the American waters of the St. Lawrence river, in any way or manner, or by any device whatever, except that of angling by hook and line, save only in the following waters, namely : the Hudson river below the dam at Troy; Black lake in the county of St. Lawrence; St. Regis river, Grass river, and Racket river, below the line of the Ogdensburg and Lake Champlain railroad, andinLake Ontario, except Great Sodusbay, Port bay, East bay, in the county of Wayne, Henderson harbor, or 532 ACTIONS FOR TOETS OE WEONGS. Fish and game laws. Henderson bay, in the county of Jefferson ; and also except in Lake Champlain, during the month of October, and the first fifteen days in November ; and also, except in the waters of the Walkill river, within the county of Ulster, wherein it shall be lawful for any person or persons of one and the same family or household to possess and fish for suckers and eels in the waters of said river, during the months of March and April, and October and November, with a single fyke, the meshes of which shall not be less than one inch, and, also, except that all that part of the waters of Lake Ontario, together with its bays and inlets, lying and being in the county of Jefferson, and in that part of Oswego county, lying between its Jefferson county line and the west- erly line of the town of Mexico, and within one-half mile of the outlet or mouth of Salmon river, saving and excepting the shoals adjacent to Henderson bay, on the lake side from the main shore, to and including Smoke island, except during the months of November and December, which waters are hereby released from the operation of the provisions of sections 23 and 26 of the act hereby amended. No person shall knowingly sell or purchase, or have in his or her possession, any fish killed, caught or taken from any such waters contrary to the provisions of this section. And any person violating the pro- visions of this section shall be deemed guilty of a misdemeanor, and in addition thereto shall be liable to a penalty of $25 for each and every such offense. And all nets, seines, traps, weir, or other devices, forbidden by this section, are hereby declared contraband, and any person finding the same in any place where they are forbidden is hereby authorized to destroy such contraband articles, and no action for dam- ages shall lie against liim for such destruction." Id., § 23, as amended by Laws of 1880, chap. 531, § 1. " Any person having in his or her possession on the shores of any lake, or on the banks of or upon any waters inhabited by salmon, salmon trout, lake trout, black or Oswego bass, ormuscalonge, during the closed season, without the permission of the commissioners of fisheries, any snares, nets, stake-polls, or other devices used in unlawfully taking such fish, shall be deemed guilty of a misdemeanor, and in addition thereto shall be liable to a penalty of $25 ; but nothing herein contained shall apply to that portion of the Hudson river south of the dam at Troy, or to Lake Ontario, or to the waters of the Walkill river in Ulster county." Id., § 24, as amended by Laws of 1880, chap. 531, § 2. " No person, association, company or corporation shall throw or de- posit, or permit to be thrown or deposited, any dye-stuff, coal tar, refuse from gas-houses, saw-dust, hme or other deleterious substance, or cause ACTIONS FOR TOETS OE WEONGS. 533 Fisli and game laws. the same to run or flow into or upon any of the rivers, lakes, ponds, streams, or any of the bays or inlets adjoining the Atlantic ocean within the limits of this State. Any person who shall violate this sec- tion, or any member of any such company, association or corporation who shall authorize and direct any such violation, shall be guilty of a misdemeanor, and in addition thereto shall be liable to a penalty of $50 for each offense. But this section shall not apply to streams of flowing or tide water, nor to the town of French Creek in Chautauqua county, which constitutes the motive power of the machinery or manu- facturing establishments, when it is absolutely necessary for the manu- facturing purposes carried on in such establishments to run the refuse matter and material thereof, into such stream." Id., § 25, as amended by Laws of 1881, chap. 430, § 1. " No person shall flsh in any of the waters or canals of this State with seines, gill-nets or fykes, the meshes of which shall be less than two and one-half inches, except in the waters excepted in the first sec- tion of this act, and except in the following waters : In the waters over which Eichmond county has civil jurisdiction, the meshes shall not be less than two inches ; in the bays and salt waters, estuaries and rivers of Long Island, not less than two and one-half inches, but this prohibition shall not apply to the nets used in taking " menhaden " nor to ponds where they are permitted by law ; in Lake Erie and Lake Ontario, the meshes shall not be less than four and one-half inches ; in the Hudson river below the dam at Troy, the meshes shall not be less than two and one-half inches, except seines, fykes or other nets used in catching bait fish; in Coney Island creek to the mouth thereof, extending into Gravesend bay, one-half mile each way, the meshes of which shall be four inches square, except that for eel and flounder fishing, hoop nets, with suitable meshes, may be used within said bay, between the fif- teenth day of October and the first day of April. No person shall set or take any fish by any device known as pound or trap-net, in the waters of Great South bay, except so much thereof as is within the jurisdiction of the town of Islip, and not included within the Brookhaven and Smith patents, and the waters of Lake Erie, or bring any fish so taken in such waters to the shore along the same, or be engaged in procuring or preparing for market any such fish, or any part thereof, or exposing fish taken in such nets for sale in the counties borderingon such waters. Nothing in this section shall be construed as permitting the drawing of seines in the waters of the Hudson river between the upper dock at the village of Sing Sing and Croton Landing, in the town of Cortland, nor in any of the waters between the above-named points, nor in any portion 534 AOTIONS FOE TOKTS OE WEONGS. Fish, and game laws. of the Croton river, between the first day of June and the first day of October of any year, which drawing is hereby expressly forbidden. Nor shall any thing in this section be construed to prevent the setting of fykes in the Walkill river, in Ulster county, during the months of March and April, and October and November. Any person violating the provisions of this section shall be deemed guilty of a misdemeanor, and in addition thereto shall be liable to a penalty of $50." Id., § 26, as amended by Laws of 1880, chap. 531, § 3. " Any owner or owners or lessee or lessees of land or lands and water, whether such owner or owners, lessee or lessees be an individual or individuals, association or associations, society or societies, corpora- tion or corporations, desiring to lay out, devote or dedicate such land or lands and water for the purpose of a private park or territory for propagating or protecting fish, birds or game, shall publish at least once a week, for three months, in a paper of general circulation printed in the county or counties within which such lands or lands and water are situated, a notice describing the same ; and there shall be inserted in said notice so published a clause declaring that such lands or lands and water will be used as a private park for the purpose of propagating and protecting fish, birds and game ; and it shall, be the duty of such owner or owners, lessee or lessees, at any time during the publication of said notice, or within six months after the final publication thereof, to post or put up notices or sign-boards warning all persons against trespassing upon such private territory, which notices or sign-boards shall not be less than one foot square, and placed not more than fifty rods apart along the entire boundary of said private park or territory, when the same shall consist entirely of land, and when said private park or territory shall consist of both land and water, the notices aforesaid shall be placed in conspicuous places upon said territory, so there shall be at least one notice or sign-board so placed or erected for every one hundred acres of said territory. And when the property to be protected shall consist of a lake or pond only, said notices shall be placed in at least four con- spicuous places upon the shore of such lake or pond. But when said territory shall be inclosed by a fence or fences of reasonable capacity for protection of said premises, then notices or sign-boards of the dimen- sions aforesaid shall be placed on said fence or fences, not more than one-half mile apart. After any such territory shall be dedicated and designated as aforesaid, all fish, birds and game, of, in or upon said ter- ritory shall be the property of the owner or owners, lessee or lessees thereof." Id., § 27, as amended by Laws of 1880, chap. 531, § 4. " After such grounds are inclosed in such manner as to render such ACTIONS FOE TOETS OR WEONGS. 535 Fish and game lawa. flsh or game private property, no person shall catch or take from or kill any fish, birds or game in or upon said grounds, or the waters thereon, or put on such grounds or in any such waters any poisonous or other deleterious substance, or pisciverous fish, or let off the waters from said grounds, with intent to take fish, or to destroy the fish or eggs placed in such waters, or deface or destroy any sign or notice posted up as aforesaid ; or place any object against or near such fence or in- closure, with intent to aid dogs or other animals to get into said grounds, or to enable animals kept therein to escape therefrom, or enter upon any such ground with the implements or weapons for catching, killing or taking fish, birds or game, with the intention of catching, taking or killing any fish, birds or game thereon. Any person found guilty of any offense against this section shall be deemed guilty of a misdemeanor, and in addition thereto shall be liable to the owner or lessee, in addi- tion to the actual damages incurred, in exemplary damages to the amount of $25." Id., § 28. " The commissioners of fisheries of this State are hereby required and directed to erect and maintain, at a distance of eighty rods from any fish-way established or constructed by the State, in any stream or water- course within its boundaries, sign-boards, on which shall be plainly painted or inscribed the words following, to-wit: "Eighty rods to the fish-way ; all persons are by law prohibited from fishing in this stream between this point and the fish-way ; " said sign-board to be erected on both sides of the stream above and below the fish-way." Id., § 29. " No person shall catch, take or~ kill, or attempt to catch, take or kill, with any implements or device whatever, any fish within a dis- tance of eighty rods from any fishery established by the State, within any stream or water-course within its boundaries, or tear down or de- face or destroy any sign-board put up by the commissioners of fisher- ies of this State. Any person violating any of the provisions of this section, provided the sign-boards mentioned in the preceding section shall have been erected and maintained as directed by this act, shall be deemed guilty of a misdemeanor, and in addition thereto shall be liable to a penalty of $25." Id., § 30. " A State bounty of $30 for a grown wolf, $15 for a pup wolf, and $20 for a panther, shall be paid to any person or persons who shall kill any of said animals witliin the boundaries of this State. The pei'son or persons obtaining said bounty shall prove the death of the animal so killed by him or them, by producing satisfac- tory affidavits, and the skull and skin of said animal, before the super- visor and one of the justices of the peace of the town within the 536 ACTIONS FOE TORTS OR WRONGS. Fisli and game laws. boundaries of which the said animal was killed. Whereupon said super- visor and justice of the peace, in the presence of each other, shall burn and destroy the said skull, and brand the said skin, so that it may be thereafter identified, and issue to the person or persons claiming, and entitled to the same, an order on the treasurer of the county to which said town belongs, stating the kind of animal killed, the date of killing of the same, and the amount of bounty to be paid by virtue of the within section of this act, and the county treasurers of the State are hereby authorized and directed to pay all orders issued as aforesaid ; and all orders issued in the manner aforesaid, and paid by the treasurer of any county in this State, shall be a charge of said county against the State, the amount of which charge, on the delivery of the proper vouchers, the comptroller is hereby authorized and directed to allow in the settlement of taxes due from said county to the State." Id., § 31. " There shall be no shooting, hunting, trapping or caging of birds or wild beasts, or having in possession in the open air for such purpose, the implements for the shooting, hunting, trapping or caging of the same, on the first day of the week called Sunday ; and any person violating either of the provisions of this section shall be deemed guilty of a mis- demeanor, and in addition thereto shall be liable to a penalty of $25 for every such offense." Id., § 32. " All penalties imposed by this act may be recovered with costs of suit by any person in his own name, or by any society in its name, upon such society giving security for costs, before any justice of the peace in the county where the offense was committed, or in an adjoining county, when the amount does not exceed the jurisdiction of such justice, or when such suit shall be brought in the city of New York, before any justice of the District Coni-t, or of the Marine Court of said city ; and such penalties may be recovered in the like manner in any court of record in the State; but on a recovery by the plaintiff in such case for a less sum than $50, the plaintiff, shall only be entitled to costs to an amount equal to the amount of such recovery ; and it shall be the duty of any district attorney in this State, and he is hereby required to prosecute or to commence actions, in the name of the people of this State, for the recovery of the penalties allowed hereby, upon receiving proper information ; and in all actions brought by such district attorney, one-half of the penalty recovered shall belong to the persons giving in- formation on which the action is brought, and the other half shall be paid to the treasurer of the county in which such action is brought. All judgments recovered in pursuance of the provisions of this act, with the interest thereon, may be collected and the payment thereof enforced ACTIONS FOR TOETS OE WEONGS. 537 Fish and game laws. by execution against the person ; and any person imprisoned upon any such execution shall be so imprisoned for a period of not less than five days, and at the rate of one day for each dollar or fractional part thereof of such judgment and interest where the same exceeds $5 ; and such imprisonment shall not be satisfaction of such judgment, but no person shall be more than once imprisoned upon any such judgment or execu- tion, and two or more penalties may be included in the same action." Id., § 33. " Any person who shall be found guilty of a misdemeanor under any of the provisions of this act shall upon conviction be punished by a fine of not less than $o, nor more than at the rate of $1 for every dollar of the penalty provided by the section so violated, when the same exceeds $5, or by imprisonment in the county jail or penitentiary for a period of not Jess than five days, nor more than at the rate of one day for every $1 of any such penalty, or by such fine and imprisonment in the discretion of the court." Id., § 34. " Courts of Special Sessions in towns and villages, and the several courts in cities having jurisdiction to try other misdemeanors, shall have jurisdiction to try offenders in all cases occurring under this act, in the same manner as in other cases where they now have jurisdiction, and to render and enforce judgment accordingly. All fines recovered by the provisions of this act shall be paid over by the court receiving the same to the treasurer of the county wherein the offense is com- mitted, except in the county of l^ew York, and in the county of New York to the chamberlain in the city of New York, within ten days after their reception by such court, and such moneys shall be kept by snch treasurer or chamberlain as a separate fund to be applied to the en- forcements of the provisions of this act in such manner as the boards of supervisors of the several counties, except in the city and county of New York, and in such city and county the board of aldermen may direct either for the employment of special detectives or the payment of rewards for the detection and arrest of offenders, and each of the boards of supervisors of this State shall have power to raise by tax, in the same manner as other taxes are raised for county purposes, such sum, not exceeding $1,000 in any year, as they shall deem proper to further aid in the enforcement of the provisions of this act. It shall be the duty of every sheriff", under-sheriff, deputy-sheriff", officer of police or policeman and of every constable, and every game con- stable, and every bay constable, to arrest, wherever found within this State, without warrant, any person whoni they shall find violating any of the provisions of this act, and immediately to bring such offender 68 538 ACTIONS FOE TOETS OE WEONGS. Fish and game laws. before the nearest magistrate having jurisdiction of the offense, for ex- amination and trial. Any officer or magistrate who shall neglect or refuse diligently to enforce the provisions of this act, upon proper in- formation and complaint, shall be deemed guilty of a misdemeanor, and shall be punished by a fine or imprisonment, or by botli such fine and imprisonment, in the discretion of the court." Id., § 35. " Any person may sell or have in his or her possession any hare or rabbit, or any woodcock, any ruffed grouse, commonly called partridge, any pinnated grouse, commonly called prairie chicken, and any quail, from the first day of January to the first day of February, and any fresh venison from the first day of December to the first day of January, and shall not be liable for any penalty under this act, provided he proves that such birds or game were killed within the period provided by this act." Id., § 36. " It shall be lawful for the board of supervisors of any county, at their annual meeting, to make any regulations or ordinances protecting other birds, fish or game than those mentioned in this act ; and also for the further protection of such birds, fish or game as are in this act mentioned, except wild deer, and to this end to prohibit hunting or fishing in particular localities or waters lying within their respective counties, for limited periods and during certain months of the year, and to prescribe punishments and penalties for the violation thereof, and to adopt all necessary measures for the enforcement of such pun- ishment and the collection of such penalties ; and such regulation and ordinances shall be published in the papers in such county in which the session laws are published, and a certified copy thereof shall be filed in the office of the clerk of the county." Id., § 37, as amended by Laws of 1880, chap. 531, § 5. " It shall be lawful for the boards of supervisors of the several counties of this State, except as by this section hereinafter further provided as to the county of Kings, by a majority vote of the members elected at a regu- lar meeting of such boards respectively, to authorize the election in each and any of the towns or cities of their respective counties, of one or more officers to be designated game constable, who shall be chosen at town meeting as other town officers are chosen, and hold office for the term of one year : and he or they shall take the oath of office the same, and be invested with and have the same powers in serving process under this act, that town constables now possess in serving civil process ; but such game constable for the entire county of Kings may be appointed by the board of supervisors at any regular meeting, and he or they shall hold office to the last day of December next after his appointment, and ACTIONS FOE TOETS OE WEOl^GS. 539 Pisli and game laws. until his successor shall be appointed and qualified ; and all suits prose- cuted by such game constable for the county of Kings, for penalties under the provisions of this act, may be prosecuted in the County Court of Kings county, or in the City Court of Brooklyn ; and in case a recovery shall be had in such suits for less than $50, the plaintiff shall be entitled to costs to the amount of such recovery. Warrants of arrest may be issued by such courts in such actions prosecuted by the game constable of Kings county, as in cases provided for by section 179 of the Code of Procedure, except that no undertaking shall be required on behalf of the plaintiff, and the judgments may be enforced by execution against the person, and the sheriff of said county shall not be entitled to any deposit or pay from the plaintiff under the provis- ions of chapter 813 of the Laws of 1869. It shall be the duty of the game constable, after reliable information, to prosecute all viola- tions of this act, and he shall receive such compensation for his services as is allowed by law for like services to constables of towns, and also one-haK of all penalties recovered by him for violations of this act. In case of neglect or refusal of any game constable to prosecute any such violation, he shall forfeit the penalty of $25, to be sued for and recov- ered as specified in this act. Whenever any game constable shall fail to recover the penalty in any prosecution commenced by him, pursuant to this section, the cost of suit incurred by him shall be charged against the county, and it shall be the duty of the board of supervisors of the county to audit and allow the same, as other county charges ai-e audited and allowed (as amended by chapter 595, Laws of 1872"). Id., §38. " Any justice of the Marine or District Court in the city of JSTew York, or any justice of the peace, police or other magistrate, upon receiv- ing sufficient security for costs on the part of the complainant, and suffi- cient proof by affidavit that any of the provisions of this act have been violated by any person being temporarily within its jurisdiction, but not residing there permanently, or by any person whose name and residence are unknown, is hereby authorized to issue his warrant for the arrest of such offender, and to cause him to be committed or held to bail, to an- swer the charge against him ; and any such justice or magistrate, upon receiving proof or probable cause for believing in the concealment of any game or fish mentioned in this act, and taken during any of the periods prohibited, and upon the complainant's giving security to be approved by such magistrate for the damage which the defendant in the case may sustain in consequence of the complaint, provided he shall be found not to have violated the law, shall issue his search-warrant and cause 540 ACTIOJSrS FOE TOETS OE WRONGS. Fish and game laws. searcli to be made in any house, market, boat, ear or other building, and for that end may cause any apartment, chest, box, locker, crate, or basket to be broken open and the contents examined." Id., § 39. " All acts or parts of acts for the preservation of wild deer, birds, fish, and game, including section 2 of chapter 183 of the Laws of 1875 are hereby repealed, except such acts and parts of acts as relate to the com- missioners of fisheries and the establishment of fish- ways, the construc- tion of dams across the rivers of this State, the protection and preserva- tion of shell-fish, the incorporation of any company for the protection and propagation of fish and game, the election of bay constables, the laws conferring upon boards of supervisors special powers to legislate for the protection of fish, birds and game, and the laws relating to shad fish- ing ; saving, nevertheless, so much of said act as may be necessary to sustain any right of recovery or condition thereunder for actions or prosecutions heretofore commenced." Id., § 40. " This act shall take effect immediately." Id. , § 41. The reference to section 179 of the Code of Procedure in section 38 of the Laws of 1879, above quoted, must be construed as if it was made to sections 549, 550, and 553 of the Code of Civil Procedure. See Laws of 1880, chap. 245, § 3, subd. 13. In addition to amending certain sections of the act of 1879, above quoted, the act of 1880 (chap. 531) contains certain provisions and prescribes certain penalties not mentioned in the act amended. These read as follows : " § 6. Any action brought or prosecuted by any district attorney, pur- suant to the provisions of the act hereby amended, may be discontinued by such district attorney, and neither costs nor disbursements in such action shall be recovered by any defendant therein." " § 7. No person shall catch, take or kill any California trout in any of the waters of this State, in any way or by any device, between the fifteenth day of May and the first day of September. No person shall knowingly sell or purchase, or have in possession, any California trout, killed, taken or caught in the waters of this State, during the period aforesaid. Any person violating the provisions of this section shall be deemed guilty of a misdemeanor, and, in addition thereto, shall be liable to a penalty of $25 for each offense." " § 8. The waters of Otsego lake are hereby excepted from the provisions of this act." " § 9. This act shall take effect immediately." In 1880, the legislature passed "an act to regulate the taking of clams and oysters in the waters of the State of New York on the south side ACTIONS FOE TORTS OR WRONGS. 541 Trespass to personal property. of Staten Island ;" but as that act is of mere local interest, and does not provide any civil remedy for its enforcement, it is here omitted. See Laws of 1880, chap. 453. " An act for the preservation of lobsters " was also passed in the same year. See Laws of 1880, chap. 282. § 15. Trespass to personal property. The abrogation of all forms of action materially changes the former convenient method of classify- ing the various cases under those titles to which they naturally belonged. But the rules of law relating to rights of action still remain unchanged, and some mode of arranging the cases must be adopted, and perhaps as convenient a method as any will be to arrange the cases cited under the old titles. Though the forms of action are abolished, there is still the same diversity of remedy in some respects that existed before the enact- ment of the Code. For an injury to personal property, or for a destruction or conversion of it, the party injured has a remedy by action for the recov- ery of damages. But, where the taking of property is wrongful, the owner is not restricted to an action for damages, for he may generally elect to obtain possession of the property by an action of replevin. Re- plevin is a convenient and useful remedy where the identical property taken can be recovered. And trespass or trover will be resorted to where the property is destroyed, or removed beyond the reach of replevin process. It is to be remembered, however, that a plaintiff cannot main- tain two separate actions of a different character at the same time, such as an action of trespass or of trover, and also an action of replevin . Neither can a plaintiff unite the two forms of actions in a single action. He must elect which form of remedy he will pursue, and abide by the elec- tion so made. See Election of Actions. An action of trespass for an injury to personal property lies not merely in those cases in which personal chattels are taken out of the actual possession of the owner, but also for any wrongful and forcible injury which may be done to them while in his possession, or in the possession of any other person for him. An action may be maintained in the courts of this State for a trespass to personal property, which was committed out of the State. To maintain an action of trespass for an injury to personal chattels, the plaintiff must show that, at the time when the injury was done, he had either the aetual possession. Young v. Hiohens, 6 Q,B. 606, cited ante, 472, or else that he had a constructive possession in the thing in- jured, and that he had a general or qualified property therein. Smith v. Miller, 1 Terra R. 480 ; Miller v. Kirby, U 111. 242. If the plaintiff has neither an actual nor a constructive possession of the property at the time of the injury, he cannot maintain an action of 542 ACTIONS FOE TOETS OE WEONGS. Trespass to personal property. trespass. He must have the right to reduce the property to actual possession at any time to enable him to maintain this f orni of action. And, therefore, the lessor of a chattel cannot maintain trespass against a third person for taking the property from the lessee during the con- tinuance of his term or interest in the property. Putnam v. Wy- ley, 8 Johns. 432 ; Ward v. Macauley, 4 Term E. 489 ; Gordon v. Harper, 7 id. 9. Proof of actual possession of the chattel by the plaintiff at the time when the injury was done to it will be sufficient in all cases to maintain an action against a mere wrong-doer, who is not the real owner of the chattel. Aiken v. Buck, 1 Wend. 466. Bare possession alone of a chattel is sufficient title or right to maintain the action against a wrong- doer. Hoyt V. Gelston, 13 Johns. 141, 501 ; Miller v. Kirhy, T4 111. 242 ; Limhert v. Fenn, 32 Conn. 158 ; Brown v. Ware, 25 Me. 411. See Sickles v. Gould, 51 How. 22. And even where the plaintiff came into possession of the property wrongfully, he may, nevertheless, main- tain trespass against a mere wrong-doer, who divests him of the possession. Hurd V. West, 7 Cow. 752. And see Royt v. Van Alstyne, 15 Barb. 568, 572. A mere finder of a chattel may maintain the action against a wrong-doer who has no title at all. Even a gratuitous bailee may maintain trespass against a wrong-doer. Booth v. Wilson, 1 Barn. & Aid. 59. An agistor of cattle who has no lien for the keeping may, notwith- standing, maintain trespass against a stranger for taking them away from his possession. Bass v. Pierce, 16 Barb. 596. A sheriff or con- stable who has levied upon property by virtue of an execution may maintain trespass against a stranger who takes them away. Barker v. Miller, 6 Johns. 195 ; Barker v. Binninger, 14 IS". Y. 270. But the action must be brought by the sheriff himself, and the action cannot be maintained in the name of the deputy. Terwilliger v. Wheeler, 35 Barb. 620. And where an officer has seized property on an execution, or by virtue of an attachment, trespass will lie against a stranger who takes it or injures it, but the action must be brought in the name of the officer, and not in the name of the plaintiff in the process. Skinner v. Stewart, 39 Barb. 206 ; Barker v. Matthews, 1 Denio, 335. But see Code of Civil Procedure, § 677. A ministerial officer cannot, however, maintain trespass for goods levied upon by him without showing a valid judgment as well as an execution. An officer acting under process ap- parently valid but actually void may avail himself of the process for the purposes of a defense but not for aggression. "Where, therefore, an officer who, by virtue of a process valid upon its face but void for ACTIONS FOE TOETS OE WEONGS. 543 Trespass to personal property, "Want of jurisdiction in the court issuing it, has levied upon and taken possession of property, brings an action to recover the property against another officer, who by virtue of process against the owner, apparently valid, has taken it from the plaintiff's possession, the character of such possession is a subject of inquiry and attack, and the invalidity of the process under which the plaintiff acted may be shown ; but the defend- ant's process protects him, and its validity cannot be assailed. But the plaintiff's process and his possession under it establish, prima facie, a right of action. Clearwater v. Brill, 63 1^. Y. 627. See Seymour v. Newton, IT Hun, 30. "Where goods are in the .hands of an officer, wrongfully, but under a claim of right, they are in the custody of the law, and as the owner has neither the actual nor the constructive posses- sion of them he cannot maintain trespass de hotiis asportatis against a third person. Runt v. Pratt, 7 R. I. 283. Proof that the plaintiff is the absolute or general owner of the prop- erty, without proof of actual possession, is sufficient to maintain the action, for the general title or ownership of the property of chattels primafaoie draws to it the possession. Thorp v. Burling, 11 Johns. 285 ; Aihin v. Buck, 1 Wend. 466 ; Gordon v. Harper, 7 Term E. 9. And where the owner of a chattel has deposited the chattel with a bailee, with a right to the possession at any time, he may maintain trespass against one who wrongfully injures the chattel or takes it from the bailee. lb. ; Thomas v. Phillips, 7 Carr. & P. 573 ; Staples v. Smith, 48 Me. 470. If mortgaged chattels are wrongfully taken away, the mortgagee may maintain trespass therefor although the debt secured by tlie mortgage is not due. Foster v. Perkins, 42 Me. 168. A purchaser of personal property, who has purchased under a sale which transferred the title of the property to him, may maintain tres- pass against one -who wrongfully injures or takes it away. Parsons V. Dickvnson, 11 Pick. 352 ; Thomas v. Phillips, 7 Carr. & Payne, 573. A special property or interest of a limited or temporary nature is sufficient to sustain the action in some cases, as where a bailee holds it under an authority from the general owner, coupled with an interest in it. A factor, commission merchant, or consignee of goods, has such an interest as will maintain the action. Fowler v. Down, 1 Bos. & Pul. 45. So in the case of a simple bailment of a chattel, without reward, either trover or trespass may be maintained by either bailor or bailee, against one who wrongfully ta;kes it out of the bailee's possession. Nichols V. Bastard, 2 Cromp., Mees. & Eosc. 659. The lender of a chattel for a special purpose may maintain trespass against one who 544 ACTIONS FOR TOETS OR WRONGS. Trespass to personal property. takes it on an execution issued against the borrower. Boot v. Chand- ler, 10 Wend. 110. And see Nash v. Masher, 19 id. 431. Both the person who has the general property and lie who has the special property in goods may maintain trespass for taking and injur- ing them. But a recovery of damages by either will be a bar to an ac- tion by the other. Zuse r. Jones, 39 N. J. L. TOT. One who erects a tombstone may maintain trespass against another who wrongfully removes it from the churchyard and erases the in- scription. Spooner v. Brewster, 3 Bing. 136 ; S. C, 2 Carr. & Payne, 34. A landlord who wrongfully removes a tenant's door-plate from the front door of a house occupied by the tenant is , liable in trespass. Lane v. Dixon, 3 C. B. TT6. Chasing another person's cattle, in per- son or with a dog, is a trespass for which an action will lie, unless the defendant is justified in doing so, for the purpose of driving them from his premises or close where they were trespassing. But if a dog chases cattle in the absence of his master, no action of trespass will lie ; and an action on the case cannot be maintained against him unless that he knew that the dog was accustomed to chase cattle. Trespass will lie for wrongfully killing a dog, for a dog is a tame animal, and there may be a property in him as well as in other tame animals. If a person kills a dog which is on his premises but doing no damage, he will be liable to the owner of the animal in an action of trespass. Brent v. Kimball, 60 111. 211 ; S. C, 14 Am. Rep. 35. As has been shown, there are instances in which a dog may be justi- fiably killed as a nuisance. Ante, 452. An action has been maintained by the owner of a cat to recover damages against a person who killed it. Whittingham v. Ideson, 8 Up. Can. Law Jour. 14. If tame or domestic animals or fowls trespass upon the lands of another, it will be a trespass to kill them, even though they are tres- passing at the time on the lands of the person by whom they are killed. Matthews v. Fiestel, 2 E. D. Smith, 90. If goods which are given at one place are, at the time of the gift, in another place, and they are afterward converted by a stranger before the donee can take possession of them, an action will lie by the donee against such stranger for the conversion. Collis v. Bowen, 8 Blackf. 262. A person to whom goods are sent on a contract of sale or return is conditionally the owner and he may maintain trespass against one who wrongfully injures or takes them away. Colwill v. Beeves, 2 Camp. 5T5 ; ante, 23. Where the owner of horses and a carriage, or a livery-stable keeper ACTION'S FOE TORTS OR WRONGS. 545 Trespass to personal property. lets them out, and sends his own driver with them, he may maintain trespass for an injury done to them by a stranger. Deem v. Branth- waite, 5 Esp. 35. But if the exclusive possession of the thing is trans- ferred to the bailee for a particular time, and it is injured during that time, trespass will not lie, because the owner has no right of possession until the bailment is determined. Hall v. Piokard, 3 Camp. 187 ; Ward V. Macaidey, 4 Term R. 490 ; Gordon v. Harper, 7 id. 11 ; Pain V. WhittaTcer, 1 E. & M. 99. The reason why trespass will not lie is, that trespass is an action for an injury to the possession, and so long as a party is neither in possession, nor has any right of possession, at the time of the injury, there is no ground of action. But an action on the case may be maintained by the owner for such injury as he has sustained by the wrongful acts of the de- fendant, lb. See Mears v. London, etc., R. R. Co., 11 C. B. (N. S.) 850. An assignee of a judgment which is satisfied, who procures an exe- cution to be issued and levied upon the property of the defendant in the judgment, is a trespasser. MoGuinty v. Herrich, 5 Wend. 5^40. A sheriff or a constable who levies an execution after the return day is also a trespasser. Yail v. Lewis, 4 Johns. 450 ; Hathaway v. How- ell, 54 ."N". Y. 97 ; Smith v. Smith, 60 id. 161. But a writ of posses- sion issued upon a judgment in ejectment can lawfully be executed after return day. Witbeek v. Van Rensselaer, 64 N. Y. 27. A collector of a school district tax must fully execute the warrant for its collection within the time limited for its execution, unless it is re- newed, and though he levies within the time, he is a trespasser for sell- ing after its expiration. Stroud v. Butler, 1 8 Barb. 327. Assessors of taxes are liable as trespassers for a levy under their roll, upon the prop- erty of a non-resident of a town, assessed thereon by them upon his personal property. People v. Supervisors of CherMogo, 11 IST. Y. 563 ; Mygatt v. Washburn, 15 id. 316. See National Bank of Ghemung v. Gity of Elmira, 63 id. 49. A justice's attachment, when issued without proper proof, and secu- rity, is a nullity, and if executed by taking the property of the defend- ant named in the process, the plaintiff and the justice will both be tres- passers. Davis V. Marshall, 14 Barb. 96 ; Voshurghv. Welch, 11 Johns. 174; Adkins v. Brewer, 3 Cow. 206. The rule applicable to all in- ferior and limited tribunals is, that their jurisdiction is never presumed, but on the contrary must be alleged and proved. When the jurisdic- tion of the court or officer is made to depend on the return of process in a given form, or proof of a particular fact, and the return is not sub- 69 546 ACTIONS FOR TOETS OE WEONGS. Trespass to personal property. stantially in the form prescribed, or the fact is not proved, the court or officer does not acquire jurisdiction, and the proceedings are utterly void. Stone v. MilUr, 62 Barb. 430. Every unlavrful interference with the property of another is a trespass, although there is no manual seizing. Where property is within the reach of an officer with process, and he requires security that it shall be forthcoming, as a condition of his not taking it away, the mere act of levying and taking a receiptor will be a trespass if not lawfully done. Wint/ringham v. Lafoy, 7 Cow. 735 ; Phillips v. JBall, 8 Wend. 610. See Latimer v. Wheeler, 3 Abb. Ct. App. 35 ; S. C, 1 Keyes, 468; Corsen v. Oliver, 2 Abb. IST. C. 352. In an action of trespass it was shown that the defendant admitted that he had levied upon the property, and at the same time had exhib- ited the execution and stated the amount, and had refused to disclaim the levy ; this was held to be sufficient to charge him as a trespasser. Copley V. Rose, 2 N. Y. 115. When a person permits personal prop- erty, which has been seized under process irregularly executed, to be retained for his benefit, or refuses to give up the property, he will be liable although it was taken in his absence. Cooh v. Harper, 23 Mich. 411; Alfred v. Bray, 41 Mo. 484; Lewis v. Johns, 34 Cal. 629. And see Brainerd v. Dunning, 30 N". Y. 211; Smith v. Felt, 50 Barb. 612. A mere levy upon personal property by an officer, where it is not authorized by law, without either a sale or a removal, is a trespass. Stewart v. Wells, 6 Barb. 79. See Alvord v. Llaynes, 13 Hun, 26. If a wrongful levy is made by the direction of the plaintiff, both he and the officer are trespassers. Stewart v. Wells, 6 Barb. 79. And where the plaintiff directs the officer who execittes the process to do the acts complained of, he cannot set up that the process and not the direction influenced the officer. Goats v. Darhy, 2 N. Y. 517. And it is no defense that one acted in aid of an officer, if the officer was himself a trespasser. Durling v. Kelly, 113 Mass. 29. And see Wallard v. Worthman, 84 lU. 456. The president of a bank, being applied to by a constable for instruc- tions as to a levy made on an attachment for the bank upon certain property, advised with an attorney, and directed the attorney to do what he thought best, and the attorney instructed the constable to sell, and the constable sold the property ; this was held to render the presi- dent a trespasser in the taking as well as in the saxe of the property. Judson V. Goolc, 11 Barb. 642. A party who directs, and the officer who makes an oppressive levy is responsible for the unlawful act. ACTIONS FOR TORTS OR WRONGS. 547 Trespass to personal property. Cantine v. OLarh, 41 Barb. 629. As to the officer the rule is, that where a ministerial officer does any thing contrary to the duty of his office, and damage thereby accrues, an action lies. lb. But to render a party liable for a previous trespass committed by another in his name, and for his benefit, it ought to be proved that he assented to the trespass, or ratified it with a full knowledge of the facts. Fox V. Jackson^ 8 Barb. 355. But if A. sues out an attachment or an execution and delivers it to a constable, who wrongfully levies upon the goods of B., and A. afterward, and with a knowledge of the facts of B.'s claim, promises to indemnify the constable, or does indemnify him, he will be liable for the trespass. lb. ; Herring v. Hoppock, 15 N. T. 409 ; S. C, 3 Duer, 20 ; Boot v. Chandler, 10 Wend. 110 ; Fonda v. Van Home, 15 id. 631 ; Davis v. Newkirk, 5 Denio, 92. There cannot be a trespass by relation, when the act was lawful at the time when it was committed. Tharpe v. Stallwood, 5 Man. & Grang. 760 ; Pratt v. Potter, 21 Barb. 589. To maintain an action the plaintiff mnst prove that the trespass was committed by the defendant, or by his order, or at his instigation. If the defendant himself did the act, or was present aiding and abetting in its commission, or if, before the trespass was done, he ordered, in- cited, or advised the party, who afterward did it, to commit it, proof of these or of any of these will be sufficient to sustain the action. If an officer under a warrant against the goods of one person levies npon the goods of another, the party for whom the warrant was issued will not be liable for the trespass unless it is shown that he authorized the wrongful act. Mere causing the process to issue, and setting the proper officers in motion in the execution of the process will not render him liable ; nor will the fact that his attorney directed the seizure have that effect in the absence of proof of special authority in the attorney. Welsh V. Cochran, 63 N. Y. 181 ; S. 0., 20 Am. Rep. 519. On the other hand, if an attorney, by the direction of his client, issues an execu- tion on a paid judgment he is liable as a trespasser, and the fact that he acted as attorney is no defense. Mooney v. Manghan, 25 Up. Can. (0. P.) 244. The fact that a person who has assisted an officer in the execution of a lawful writ acted wrongfully in obtaining the writ does not render him liable to an action of trespass. Osgood v. Carver, 43 Conn. 24. And the subsequent approval of a trespass by a third person will not render him liable unless the act was originally done in his name or for his use. Grund v. Van Vleek, 69 111. 478. In actions of trespass the plaintiff is not bound to join all the wrong- doers as defendants. He may do so or not at his election. See Parties 548 ACTIONS FOE TOETS OE WEONGS. Trespass to personal property. to Actions. All the persons who direct or assist in the commission of a trespass are liable as principals ; and an agent or servant is liable as a principal to the plaintiff, whether such servant did the act by the authority of his master or not. Olsen v. Upsahl, 69 111. 273. Trespass lies in some cases for an injury or wrongful act which is done to a personal chattel, while it is in the lawful adverse possession of the wrong-doer, as where the act done is such as to render the defendant a trespasser ab initio, or from the beginning. This is illustrated by those cases in which a person acts with propriety in the first instance, when he acts under an authority or license given by the law, but he afterward abuses it, in which case the taking will be illegal as well as the subsequent acts. If property is taken damage feascmt, as it law- fully may, still if the party taking it subsequently injures or destroys it, he will be liable in trespass. Reynell v. Champemoon, Cro. Car. 228 ; Bagshawe v. Goward, Cro. Jac. 147 ; Oxley v. Watts, 1 Term E. 12 ; Dye v. Leatherdale, 3 Wils. 20. A defendant, whether a natural person or a corporation, is not liable for a willful act of his servant, which amounts to a trespass. Chandler V. Broughton, 1 Cromp. & Mees. 29 ; Yanderbilt v. Richmond Turn- pike Co., 2 N. Y. 479. But if the master directs his servant to do an act, the natural consequence of which is a trespass, he will be liable if the servant does the act, even though he directed the servant not to trespass. Gregory v. Piper, 9 Barn. & Cress. 591. So, where the act done is a part of the appointed and regular duty of the defendant's agent, the defendant will be liable, although the agent may have done the act maliciously instead of negligently. Meyer v. Second Ave. It. R. Co., 8 Bosw. 305 ; Green v. London General Omnibus Co., 7 C. B. (N. S.) 290. The owner of animals of a tame nature, such as horses, cattle, etc., is liable in trespass for such injuries as they may do in pursuance of a natural propensity, such as trespassing upon the lands of another, even though there is no proof that he had notice of their propensity to do such mischief. And see further as to this, title Negligence. Trespass will not lie for an injury to personal property, if the act is the result of an unavoidable accident. Wakeman v. Robinson, 1 Bing. 213. But in such a case it must appear that the accident was un- avoidable, and that no blame was imputable to the defendant. Center V. Finney, 1 7 Barb. 94 ; Dygert v. Bradley, 8 Wend. 469. And see Harvey v. Dimlop, Hill & Denio, 193. An action of trespass to personal property is founded upon an injury to the possession, and where the plaintiff has no possession, or where ACTIONS FOE TOETS OE WEONGS. 549 Trespass to personal property. lie is not entitled to possession of the property at the time of the injury to it, he cannot maintain this action. But it does not follow that he is remediless, for an action of trover, or of replevin, or for the value of the property as upon a sale, is generally as desirable a remedy. And at all events, it is clear that the law will give some remedy, even if trespass cannot be maintained. In trespass, the party is liable to an action, even if he takes the prop- erty for a single moment, though in trover there must be a conversion. Price V. Helyar, 4 Bing. 597. Where the taking is wrongful, trespass lies, even though the property be returned and accepted, for the return merely goes in mitigation of damages. Hanmer v. Wilsey, 17 Wend. 91; OtisY. Jones,^].\A.Z%^; Hihhard v. Stewart, 1 Hilt. 207; Brown V. Feeter, 7 Wend. 301 ; Bowman v. Teall, 23 id. 306. The defendant had a quarrel with a negro boy in a street in a city, and then pursued the boy with a pickaxe, when the boy, in his terror, fled into the plaintiff's store, and in his endeavor to keep out of the defendant's way, he ran against a cask of wine, broke the faucet, and caused a portion of the wine to run out and be lost, and the defendant was held liable in trespass for the injury, Yandenburgh v. Truax, 4 Denio, 464. The defense in an action of trespass will be governed by the answer interposed. If a general denial of the complaint is made, the plaintiff will have to prove all the facts necessary to constitute a cause of action against the defendant. If the defendant relies upon an affirmative defense, he must set it up in his answer, and prove it on the trial. There are numerous cases in which an action of trespass 3annot be maintained, either because of a want of possession at the time of the injury, or because the law does not give a right of action under the cir- cumstances of the case. In trespass, it is no defense that the title to the property is in a stranger. Demieh v. Chapman, 11 Johns. 132; Cook v. Howard, 13 id. 276 ; Aikin v. Buck, 1 Wend. 466. See Stowell v. Otis, 71 N. Y. 36. A mere bailee of goods for keeping them cannot maintain an action of trespass against an officer who takes them on an execution against the owner, even though the property is exempt from execution. Mioklesv. Tousley, 1 Cow. 114. The exemption is a personal privilege, of which the owner alone can avail himself. lb. The owner could main- tain the action, if he chose to bring one. Livor v. Orser, 5 Duer, 501 ; see case stated Yol. I, 278, 279. If the owner of the injured property caused the injury, or contrib- uted to it by willfulness, negligence, or otherwise, he cannot maintain trespass. Tonawanda It. E. Go. v. Munger, 5 Denio, 255 ; Ilott v. 550 ACTIONS FOR TOETS OE WEONGS. Trespass to personal property. Wilkes, 3 Earn. & Aid. 304 ; Brownell v. Flagler, 5 Hill, 282. Nor can he maintain an action in any form. See Negligence. So, where a dog is a public nuisance, an action of trespass will not lie for killing him. Dunlap v. Snyder, 17 Barb. 561 ; Putnam v. Payne, 13 Johns. 312; Hinckley y. Emerson, ^ Cow. 351; ante, 4:52. And where a domestic animal does an injury to personal property of another, and the injury done is one which is not usually committed by such animals, as where the defendant's sow and pigs tore and injured the plaintifl's cow and calf so that they died, it was held that no action lay unless it was shown that the defendant had notice of the vicious propensity. Van Leuven v. LyJce, 1 N. Y. 515 ; S. C, 4 Denio, 127. But if the defendant's animals had been trespassers upon the plaintiff's land at the time of committing the injury, an action of trespass would lie without alleging or proving knowledge by the defendant. lb. But the action ought to be for a trespass to the plaintiff's close, and alleging the injury to his cattle, as matter in aggravation of the trespass. lb. And see Dunckle v. Cocker, 11 Barb. 387, to the same effect. If property is levied upon by an officer on an execution, the plaintiff in the execution cannot maintain trespass against the wrong-doer ; the ac- tion must be brought by the officer. Barker v. Mathews, 1 Denio, 335 ; Skinner v. Stuart, 39 Barb. 206. A mere ministerial officer who executes process directed and deliv- ered to him, and which is regular on its face, is not liable in trespass for executing it according to its commands. Alexander v. Soyt, 7 "Wend. 89 ; Abbott v. Yost, 2 Denio, 86 ; Savacool v. Boughton, 5 Wend. 170 ; Coon v. Congden, 12 id. 496 ; Henry v. Lowell, 16 Barb. 268 ; Imbert v. Hallock, 23 How. 456. Where the court or officer has jurisdiction of the subject-matter, and the process is regular on its face, the officer need not inquire whether there was jurisdiction in fact ; for an officer is not bound to inquire into the validity of the pro- ceedings, nor into the regularity of the process. lb. ; Beach v. Fur- man, 9 Johns. 229 ; Warrier v. Shed, 10 id. 138 ; Snydarn v. Keyes, 13 id. 444. If a justice of the peace has jurisdiction of the subject- matter, and he issues an attachment which is regular on its face, it will protect the constable who executes it ; and proof that he knew facts which rendered it void is not admissible. Webber v. Gay, 24 Wend. 485 ; People v. Warren, 6 Hill, 440. If the process is fair on its face, the officer will be justified in executing it, even though he kijew facts which rendered it void. Thomas v. Clapp, 20 Barb. 165. A consta- ble will be protected in the execution of process, regular and legal on its face, though issued upon a judgment rendered without jurisdiction. ACTIONS FOR TOETS OR WRONGS. 55I Trespass to personal property. Cornell v. Barnes, Y Hill, 35. And see Bacon v. Cropsey, TE". Y. 195, 199. A constable is protected in executing a justice's execution, whicli is valid on its face, even though the execution is actually void. Lewis V. Palmer, 6 Wend. 36Y. Process, regular on its face, and ema- nating from a court or a body of men having jurisdiction of the sub- ject-matter, protects the ministerial officer executing it. Sheldon v. Yan BusTii/rh, 2 N. Y. 4Y3. Taking an indemnity does not deprive the officer of the protection which his process affords. Horton v. Hendershot, 1 Hill, 118. If the process is valid on its face, it will not only protect the officer, but also all others who act in his aid in execut- ing it. Henry v. Lowell, 16 Barb. 268. The warrant of a justice of the peace is a protection to the officer who executes it, though the law under which the proceedings are taken is unconstitutional. Hallock v, Dominy, 69 N. Y. 238 ; reversing S. C, 7 Hun, 52. And where a warrant shows a case within the jurisdiction of the justice issuing it, although it does not recite a legal offense, the officer executing it will be protected in so doing. Smith v. Warden, 4 Hun, 787. And, in general, an execution though irregular, if not void, is a full protection to all persons acting under it. Rosenfield v. Palmer, 5 Daly, 318 ; Field v. Parher, 4 Hun, 342 ; Bovee v. King, 11 id. 250 ; S. C. affirmed, 75 JST. Y. 609 ; Miller v. Adams, 7 Lans. 131 ; S. 0. affirmed, 52 N. Y. 409. But if the process shows on its face that the officer or persons who issued it had no jurisdiction of the subject-matter or of the process, the officer will be a trespasser if he executes it. Castellanos v. Jones, 5 N. Y. 164 ; Stroud v. Butler, 18 Barb. 327. A search-warrant, void upon its face, is no protection to the parties acting under it. Johnson v. ComstocJe, 14 Hun, 238. A requisition to a sheriff in an action for the claim and delivery of personal property only authorizes the taking of chattels specified, from the defendant named in the action, or his agent ; it is no protection when he takes them from another, in an action of trespass brought by the latter. Otis v. Williams, 70 N. Y. 208. Nor is a writ of attachment a protection to the sheriff, if he take the property of a third person. Deutsoh v. Reilly, 57 How. 75. So, a United States marshal, who seizes the goods of a third person, under process issued by the court of bankruptcy, is as much of a wrong-doer as if acting in a private capacity, and the act is not different from any other trespass. Mollison v. Eaton, 16 Minn. 426 ; Doyle v. Sha/rpe, 9 Jones & Sp. 312 ; S. C. affirmed, 74 N. Y. 154. An officer who is sued for taking property need only produce his exe- cution, and he is not bound to produce or prove the judgment on which 552 ACTIONS FOE TORTS OR WRONGS. Treepaas to personal property. it was issued, when the action is brought by the defendant in the exe- cution. Holmes v. Wuncaster, 12 Johns. 395. Where an officer is sued by a stranger for taking his goods on an execution, he must prove both the judgment and execution in his defense. High v. Wilson, 2 Johns. 46; Jachson v. Hashrouck, 12 id. 213 ; Burt v. Place, 4 Wend. 591. The owner of property cannot maintain trespass against one who injures it while it is in the custody of the law. Va/n Brunt v. ScheneJc, 11 Johns. 377. And, therefore, if property is properly levied upon or seized by an officer by virtue of an attachment, replevin process, execu- tion, tax warrant or other legal process, the owner cannot maintain trespass for any injury which may be done to the property while so in custody of the law. In such cases, the owner has neither the possession nor the right to immediate possession, and, therefore, trespass will not lie. But the owner has an ample remedy in an action on the case, or in trover or replevin, by pursuing the regular practice in relation to those forms of action, which will be elsewhere explained. The action of trespass is almost invariably founded upon a wrongful talcing of personal property by the defendant from thej?(9ss^«si(?w of the plaintiff. And when the taking was lawful, or when the property was not in the actual or the constructive possession of the plaintiff at the time of the injury, there is no ground of action in trespass. But there are very numerous cases in which an action lies for a wrongful injury to property, notwithstanding the taking may originally have been lawful, or even when the plaintiff was not entitled to the possession at the time of the wrongful acts done by the defendant. If a landlord leases premises, including personal property or furniture, and an injury is done to it during the continuance of the term for which it was leased, here, although trespass will not lie, yet the landlord may maintain an action on the case for the injury done to his reversionary interest. Ward v. Maoauley, i Term R. 489; Gordon v. Harper, 7 id. 9. So, where chattels are bailed either for hire or gratuitously, the owner may maintain an action on the case for any injury done to them whiM in the possession of the bailee, whether the chattels were bailed for a definite time or indefinitely. Hall v. Pickard, 3 Camp. 187. In all such actions on the case for an injury to personal property, it will be sufficient for the plaintiff to show that he had a legal interest in the property as owner, and that it was wrongfully injured by the defendant. ACTIONS FOE TOETS OE WEONGS. 553 Trover. § 16. TroTer. The Code has abolished all forms of actions, but it has not abrogated those remedies which formerly existed when actions were classified under different forms. And as convenient a mode as any of presenting the subject under consideration will be to discuss the matter in the same manner that would have been proper had no change been made as to the forms of actions. An action of trover is one of the remedies which the law gives to recover damages for the wrongful taking and detention, or the conver- sion of the personal goods or chattels of another. It is a concurrent remedy with trespass, where there has been a wrongful taking as well as a wrongful detention or conversion ; and in such cases the plaintiff may waive the trespass if he will, and bring trover. These actions are distinguished in some particulars ; trespass will lie for a wrongful tak- ing of goods, although they may have been returned ; but trover will not, unless they have been previously used or otherwise converted, or treated in a manner equivalent to a conversion. And trover will lie where there is a wrongful detention after a rightful taking ; but tres- pass will not. The essential requisites of an action of trover are, that the plaintiff has & property in the articles or chattels ; that he has a right of posses- sion over them at the time of their conversion ; that such property or chattels be of & personal nature, and that the defendant has wrongfully converted them to his own use. •Wherever trespass will lie for a wrongful taking of chattels, trover will also lie ; for a tort may be qualified, but not increased. But the con- verse of the proposition does not hold good, because trover may- fre- quently be brought where the trespass could not ; as where goods or chattels are lent or delivered to another to keep, and he refuses to re- turn them, on demand, as he ought to do, here trespass would not lie, because the taking was lawful ; but trover may be maintained, because the refusal to return the goods is unlawful. If A. forcibly takes B.'s horse and converts it to his own use, B. may bring either trespass or trover thereon ; but if A. takes the horse and delivers it to C, who converts it, B. can only maintain trover against C, because he did not forcibly take the horse from B. So, if A. forcibly takes B.'s goods, and removes them to another place but does not afterward exercise or claim to exercise any control or do- minion over them, he is liable to B. in trespass for his wrongful inter^ meddling with the goods, but trover will not lie against him because he has not converted them to his own use or assented to their conver- sion by another. FalTc v. Fletcher, 18 0. B. (N. S.) 403. And see Ire- 70 554 ACTIONS FOE TORTS OR WRONGS. Trover — By whom brought. Icmd y. Horseman, 65 Mo. 51. A wrongful conversion is the gist of the action of trover. Waring v. Penn. R. R. Co., 76 Penn. St. 491 ; Freeman v. Underwood, 66 Me. 229. And whenever that can be estab- lished, and the plaintiff maintains his right to the immediate possession of the property, the action will lie. Burke v. Savage, 13 Allen, 408 ; Coolc V. Patterson, 35 Ala. 102 3 Landon v. Emmons, 97 Mass. 37. By whom. Possession is a sufficient title as against a mere wrong- doer, in trover, as well as in trespass ; and if goods are wrongfully taken or obtained from their possessor, by one who is a mere wroug- doer, the proof of possession is entirely sufficient to maintain the ac- tion, as against every one but the real owner, or those claiming law- fully under him. A bailee of chattels may maintain the action, Bur- ion V. Hughes, 2 Bing. 173 ; Sutton v. Buck, 3 Taunt. 302 ; even though he be merely a gratuitous bailee. Nicolls v. Bastard, 2 Or. M. & R. 659 ; Brown v. Fenner, 40 Barb. 383. And where one per- son is intrusted with goods by the owner, to take charge of them, though without compensation, he has a special property in them, and may maintain trover against a third person who converts them. Faulkner V. Brown, 13 "Wend. 63. A factor who has charge of goods, and who is responsible for their value, may maintain the action. Gorum V. Carey, 1 Abb. 285. So the finder of goods may recover their value from a wrong-doer, who subsequently converts them. Mathsws v. Harsell, 1 E. D. Smith, 393. A person who is in possession of estrays is entitled to maintain the action against any one who takes them away, unless it be the true owner. Hendricks v. Decker, 35 Barb. 298. And see Kissam v. Roberts, 6 Bosw. 154. Either the owner of goods, or a bailee, having a special interest or property therein, may recover for a conversion of the property, but a recovery by the former is a bar to any subsequent action by the latter. Oreen v. Clarke, 12 N. T. 343. And see Alt v. Weidenberg, 6 Bosw. 176 ; Marsden v. Cornell, 62 N. Y. 215. If the owner of chattels has the absolute right of property, and the right to immediate possession, he may maintain trover, even although he has never been in actual possession. To maintain trover, the plaintiff must have a property in the goods or chattels converted, and the actual possession of them, or a right to the possession, at the time of the conversion. Clements v. Yturria, 81 N. Y. 285. The plaintiff's right to recover depends upon his right to the property in presenti, and if he has no such right, he cannot re- cover. Forth V. Pursley, 82 111. 152 ; Ayres v. French, 41 Conn. 150 ; Clark V. Adam, 1 CI. & Fin. 242. And this right must have existed at the time when the action was brought. Burton v. Tannerhill, 6 ACTIOlN^S FOR TOETS OR WRONGS. 555 Trover — By whom brought. Blackf. (Ind.) 470 ; Caldwell v. Cowcm, 9 Yerg. (Teun.) 262 ; Brad- ley V. Copley, 1 0. B. 685. The plaintiff's property in the goods may be either general or spe- cial. A general property is that which exists where goods belong to one absolutely as owner ; and to this title possession is always annexed by construction of law. A special property is such as exists when one holds goods or chattels as bailee, or when he has a temporary interest therein, either for his own use and in his own right, or by authority of law for legal purposes. Possession is either actual or constructive. It is actual when the thing is in the immediate occupancy of the party. It is con- structive when a man claims to hold by virtue of some title, without having the actual occupancy. A constructive possession is one made up of acts short of possession in fact, that by relation to the real legal title amount in law to a possession in fact. But they are nothing with- out they relate to and rest upon the legal title. Until that title is proven, they, though proven, show no right to take immediate actual possession. A constructive possession is one that depends upon the contract that confers title ; and if the contract is void, there can be no constructive possession under it which will confer any rights which the law win recognize. ClemenU v. Yturria, 81 N". Y. 285. To maintain trover, the plaintiff must show that he was entitled at least to the pos- session of the goods at the time of the alleged conversion. WMtcomb V. Hungerford, 42 Barb. 177. An executor may maintain trover, although the goods have never been in his possession. Oobiett v. Clutton, 2 Carr. & Payne, 471. An action for the wrongful conversion of the property of a testator, in his life-time, must be brought by the executors,- and can be enforced by them only. Whiim,ey v. Coapman, 39 Barb. 482. A legatee cannot main- tain an action in such a case. lb. An administrator may maintain trover for an unlawful taking of the goods of the deceased after his death, but before administration granted. Rockwell v. Saunders, 19 Barb. 473, 480. "Where the conversion was complete during the intes- tate's life-time, it is necessary for the administrator to show, in the com- plaint, that he acts in a representative character. lb.; Sheldon, v. Soy, 11 How. 11. But for a conversion after the testator's death, even be- fore administration, this is not necessary. lb. Where goods are ordered to be manufactured, the purchaser does not acquire any property in the articles until delivered, even when paid for in advance, ante, 54, 55; and in such cases the purchaser cannot maintain this action. So, where a contract is made for the purchase of 556 ACTIONS FOE TOKTS OE WEONGS. Trover — By whom brought. goods then in existence, but some act is to be done by the vendor for ascertaining their identity, such as weighing, measuring, counting and the like, no title will pass until this is done, ante, 15 ; and therefore trover will not lie by the purchaser. A factor, to whom goods have been consigned for sale on commission, who has made no advances on the credit of the shipment, and has no general lien for previous advances, has no title to the goods consigned, and cannot maintain trover against a sheriff who levies upon and sells, the goods under an execution against 'the consignor. Beebe v. Mead, 33 N. T. 587. Nor can a purchaser of goods, which remain in the possession of the vendor, subject to the vendor's lien for unpaid pur- chase-money, maintain trover against a wrong-doer. Lord v. Price, L. E., 9 Exch. 54 ; S. C. 8 Eng. Eep. 505. "Where a sale of goods is procured by the fraud of the purchaser, the vendor may rescind the contract, and maintain trover against such pur- chaser for the goods. Ante^ 55; Sohmidty. Kattenhorn, 2 Hilt. 157. And the action will lie in favor of the vendor against the general assignee of the purchaser. Ante, 56. And it will also lie against one who has pur- chased such goods of the fraudulent vendee with knowledge of the fraud, although the defendant parted with the goods before action brought. Meaoham v. OolUgnon, 7 Daly, 402. Where property has been stolen, the true owner may maintain trover against any person who has sold it, however innocently, even as an auctioneer ; or against any person who has it in his possession and refuses to deliver it up on demand to tlie owner, even though the person having the property may have been a purchaser in good faith and for value. Ante, 33, 60, 62. And see Pease v. i^mith, 61 N. T. 477 ; Collins v. Ralli, 20 Hun, 246. A sheriff or constable who has levied upon goods by virtue of an exe- cution, attachment or replevin process may maintain trover against any person who wrongfully takes them away. Barher v. Binninger, 14 N. T. 270 ; Lookwood v. Bull, 1 Cow. 322 ; Bezell v. Odell, 3 Hill, 215 ; ante, 542, Trespass. And where a constable has levied upon personal property, he may maintain an action against a sheriff who sub- sequently levies upon the same property and removes and sells it. Belts V. Hoyt, 19 Barb. 412. See Clearwater v. Brill, 63 N. T. 627. Where the officer brings the action against the defendant in the exe- cution, for a conversion of the goods levied upon, it will be sufficient to produce the execution, without proving the judgment on whicli it was issued. Ante, 434. So, too, if the action is brought by the defendant in the execution against the officer, it will be sufficient to produce the execution without proving the judgment. Ante, 551 ; Horton v. Sem^ ACTIONS FOE TORTS OE WEONGS. 557 Trover — By whom brought. dershot, 1 Hill, 118. But if an action is brought against the plaintiff in the execution for directing a levy and sale of property, he must show both a valid judgment and a proper and legal execution. Under- hill V. Reinor, 2 Hilt. 319 ; Britton v. Cole, 1 Salk. 408. In an action by the plaintiff in an execution to recover money col- lected by the oiHcer, it is not necessary to produce and prove the judgment, for the officer is estopped from denying the existence and validity of the judgment. ElUotr. QronFs Adminisl/rators, 13 Wend. 35, 40. S6, in an action by the officer to recover the amount of a bid at the sale on the execution, the officer need not prove the judgment. It will be sufficient to produce the execution and prove the sale under it to the defendant. If an action is brought by a constable for taking property levied upon by him on an execution, and he has not taken actual possession of the property, and the action is brought for the benefit of the plaintiff in the execution, the plaintiff must prove a judgment, as well as an exe- cution, if required by the defendant to do so. Pryne v. Westfall, 3 Barb. 496. Where an officer sues a mere wrong doer, who has no pretense of title to the property, it will be sufficient to prove the execution and a levy and possession under it, without proving the judgment. Barker V. MiUer, 6 Johns. 195 ; Bl'aoMey v. Sheldon, 7 id. 32. And where an officer is sued for levying an execution, and the action is brought by one who is a stranger to the process, it will be sufficient for such officer to produce and prove the execution, unless the plaintiff establishes a title to the property which would have been valid as against the de- fendant in the execution. Parker v. Walrod, 16 Wend. 514. But, where an officer attempts to overthrow a sale by the debtor on the ground of fraud, he must go back of his process, and show authority for issuing it. If he acts under an execution, he must show a judgment ; and if he seizes under an attachment, he must show the attachment regularly issued. Noble v. Holmes, 5 Hill, 194. And where property has been sold on a foreclosure of a chattel mort- gage, and an officer by direction of the plaintiff in an execution levies upon it and sells it, they will be compelled to prove a judgment as well as the execution, if the action is brought by the purchaser under the mortgage sale. Gelhaar v. Boss, 1 Hilt. IIY; Underhill v. Beinor, 2 id. '319. If the defense is that the title of the plaintiff is fraudu- lent as against creditors, by reason of the invalidity of the mortgage, it is clear that the judgment must be proved as well as the execution. lb. But in an action by the voluntary assignee of the judgment debtor, 558 ACTIONS FOE TOETS OE WRONGS. Trover — By whom brought. it will be sufficient to produce and prove a valid execution and levy, without proving the judgment, because the assignee is not a stranger within the rule requiring proof of a judgment in case of an action by a stranger to the judgment and execution. Heath v. Westervelt, 2 Sandf. 110. Where' an action is brought by a purchaser at a sale under an execu- tion, whether it be the plaintiff in the execution, or an innocent third person, the plaintiff must prove a judgment as well as an execution. Earl V. Camp, 16 Wend. 562. But, where no objection is taken in the court below, on account of the omission to prove a judgment, the objec- tion will be waived, and cannot be heard on an appeal. Smith v. Hill, 22 Barb. 656. And where an officer sues any one but a mere wrong-doer without a pretense of right, he must prove both a valid judgment and execution ; although if he had been sued for the levy under the process, that alone would have been a sufficient protection. lb. ; Hunlap v. Hunting, 2 Denio, 648 ; Horton v. Hendershot, 1 Hill, 118. If the officer takes possession of the property levied upon, his indorsement of the levy will be sufficient evidence of his levy and possession. Harl v. Camp, 16 Wend. 562, 569; Cornell v. Ooolc, 7 Cow. 310; Spoor y. Holland, 8 Wend. 445. Neither the plaintiff in the execution nor a receiptor of the goods can maintain trover against a person who takes away the property levied on, and converts it to his own use. Ante, 542 ; Dillenhack v. Jerome, 7 Cow. 294; BarTcer v. Mathews, 1 Denio, 335 ; Skinner v. Stuart, 39 Barb. 206. Where goods have been wrongfully pledged by one who had no legal authority to pledge them, the pledgee will be liable in trover, if he re- fuses to deliver them to the true owner, on his demand. Henry v. Marvin, 3 E. D. Smith, 71. A.nd the rule is the same where the pledgee converts the goods by a sale of them. lb. A power to sell is not a power to pledge to secure money borrowed. An agent to sell is not an agent to pledge. Merchants' BanJc v. LiAjingston, 74 N. Y. 223. And where goods are sold by the owner, which, at the time of the sale, are in the possession of a third person, the latter will be liable to trover, if he refuses to deliver them to the purchaser, on demand. Hall v. Robinson, 2 N. Y. 293 ; McGinn v. Worden, 3 E. D. Smith, 355. Where stock is pledged as a collateral security for a usurious loan, the pledgor may maintain trover for it, after a demand and refusal by the pledgee to deliver it. Oousland v. Davis, 4 Bosw. 619. So it will lie by the owner of stock which has been sold without his authority, even though a valuable consideration was paid for it by the holder, in good faith, to a person whose possession was wrongful. Anderson v. ACTIONS FOR TORTS OR WRONGS. 559 Trover — Against whom brought. Nicholas, 5 Bosw. 121. So it lies by a purchaser under a mortgage foreclosure sale, against the n3ortgagor for severing fixtures which were annexed by him after giving the mortgage, and before the foreclosure sale. Gardner v. Finley, 19 Barb. 317. Or, by a lessor of furniture in a building, against his lessee, for its wrongful removal. Davidson V. Donadi, 2 E. D. Smith, 121. Or, by the bailor of property against an assignee of the bailee. Hyde v. Cookson, 21 Barb. 92. Trover will not lie unless the plaintiff has a present right of posses- sion. And, therefore, if it appears that the property was pledged by the plaintiff's vendor before the sale, for the purpose of securing a debt or duty to a third person, the plaintiff cannot recover unless lie shows that the debt or duty has been discharged, or that the operation of the pledge has ceased in some other way. Bush v. Lyon, 9 Cow. 52. And see Bradley v. Copley, 1 C. B. 685. Where there is an executory sale of chattels by which the title is not to pass until the purchase-price is paid, the purchaser cannot maintain trover against the vendor until he has made the payment. Whitoorrib y. Hungerford, 42 Barb. 177. Where the plaintiff let a house and furniture for a term, it was held that he could not maintain trover against a person who wrongfully took them on an execution during the term, because the plaintiff was not entitled to the possession during the term. Gordon v. Harper, 7 Term R. 9. And see Benjamin v. Bank of England, 3 Camp. 417 ; Pain v. Whittaker, R. & M. 99 ; Bloxam v. Sanders, 4 Bam. & Cress. 941 ; Miles V. Gorton, 2 Cr. & M. 504; Milgate v. Kebhle, 3 Man. & Grang. 100. While property is let to a third person, the general owner cannot main- tain trover, for the right to the possession is in the hirer. Forth v. Pursley, 82 El. 162. But an action on the case would lie for the recovery of such damages as the landlord might have sustained by the wrongful acts of the de- fendants. And see ante, 552. And under the present system of plead- ings every action is an action on the case, in the sense that it requires a statement of the facts constituting a cause of action, instead of a state- ment of the ground of action according to some established form of pleadings. Against whom. The action must be brought against the person who has been guilty of the conversion, or by whose orders or directions it has been done ; or it may be brought against a person for whose benefit it has been done, if he has subsequently recognized it and adopted it, in the same manner as in actions of trespass. Ante, 546. 560 ACTIONS FOR TORTS OR WRONGS. Trover — Against whom brought. And the action will lie, not only against individuals, but against corpora- tions also, when the acts are done by their officers or agents or servants, within the scope of their employment or business. Vol. 1, 493, and cases cited. A person who hires a horse to go a specified distance, or to a par- ticular place, will be liable for the injury which results from going be- yond it, and the act amounts to a conversion of the property. Fisli v. Ferris, 5 Diier, 49 ; Disbrow v. Tenbroech, 4 E. D. Smith, 397 ; Vol. I, 590. And in such a case infancy will not be any defense to the action, lb. ; Campbell v. Stakes, 2 Wend. 137. And even in those States where, by statute, contracts made upon the Sabbath are declared in- valid, or traveling upon the Sabbath is prohibited, a recovery may be had, if the bailment is exceeded. Woodman v. Hubbard, 25 N. 11. 67 ; Morton v. Oloster, 46 Me. 520 ; EuU v. Corcoran, 107 Mass. 251 ; S. 0., 9 Am. Rep. 30; Frost v. Plumb, 40 Conn. Ill; S. C, 16 Am. Rep. 18. But see Smith v. Rollins, 11 R. 1. 464 ; S. C, 23 Am. Rep. 509 ; Parker v. Latner, 60 Me. 528 ; S. C, 11 Am. Rep. 210. The hirer of a chattel acquires only the right to use, and not the do- minion of the property, and for this reason if he alters or changes its character, the bailment is at an end, and he is liable for its conversion. Farrant v. Thompson, 5 Barn. & Aid. 826 ; Fenii v. Brittleton, 7 Exch. 159. And generally, a bailee of property for one purpose is guilty of a conversion thereof if he applies it to another or inconsistent use. The reason of this is, that a bailment arises only from a contract, express or implied, and the bailee has a right to the custody or use of the property only so long as he abides by the terms of the contract. Crocker v. GulUfer, 44 Me. 491. And see Lucas v. Trumbull, 15 Gray, 306; Richardson y. Dingle, 11 Rich. (S. C.)415; Graves v. Smith, 14 Wis. 5 ; Rohbins v. Packard, 31 Vt. 570. Where the plaintifEs had hired out their barge to be used only as a receiving barge in the dock, and it was used by the defendants as a transporting barge, and was thereby sunk, the defendants were held to be liable in an ac- tion in the nature of trover for the value of the barge, independent of any question of negligence in their manner of using the same. Beach v. Raritan, etc., R. R. Co., 37 N. Y. 457. Trover may be maintained in a justice's court, against a postmaster who improperly detains a newspaper, although the detention may be under color of the laws of the United States and the regulations of the post-office department. Teall v. Fdton, 1 N. Y. 537, affirmed 12 How. (U. S.) 284. If a postmaster assumes to charge letter postage on a newspaper, because there is an initial on the wrapper, he does not ACTION'S FOR TORTS OR WRONGS. 561 Trover — Against whom bronglit. act judicially ia such a sense that it will protect him from an action for improperly detaining the paper, although neither fraud nor malice is alleged or proved. lb. A person who has a lien upon goods or chattels may detain them until the lien is discharged or satisfied. Yol. I, 650, 662. And the bailee may maintain trover against any person who takes them from his possession, or converts them, without first satisfy- ing such lien. lb. The maker of a negotiable promissory note may maintain an action for its conversion against any person who wrongfully negotiates it before it has any legal inception. Decker v. Mathews, 12 N. T. 313 ; S. C, 5 Sandf . 439. Where goods have been obtained by fraud, and have then been transferred to a lonafide holder for value, it is entirely settled that the vendor cannot recover their value from such honafide holder. Ante, 35-59. But the vendor may maintain trover against a voluntary assignee of such fraudulent purchaser, or against his creditors who have taken the property on execution. Ante, 56, 58. And whenever trespass will lie for wrongfully taking goods, amte, 553, trover will also lie, as a general rule, with the exceptions already stated. Ante, 549. The hability in this form of action is not confined to those who have deliberately and intentionally committed a wrong. The rule is clear that trover may be maintained against one who converts an other's prop- erty, although he came into the possession lawfully, and believed it to be his own. Garrard v. Pittsburgh, etc., JR. R. Co., 29 Penn. St. 154 ; Crocker v. Qullifer, 44 Me. 471 ; Morrill v. Moulton, 40 Yt. 242. And this is so, even though he shared the property, or its pro- ceeds, with a third person under that understanding. Johnson v. Powers, 40 Yt. 611. Nor will the fact that the property was taken by mistake operate to shield the defendant from liability. Hdbart v. Hackett, 12 Me. 67 ; Caldwell v. Farrell, 28 111. 438 ; Piatt v. Tut- tU, 23 Conn. 233. One who, having purchased stolen goods in the ordinary course of business in good faith, before knowledge of the own- er's rights sells and delivers them to a third person, is liable to the owner without demand ; and this, although the goods were never in his actual possession. Pease v. Smith, 61 N. Y. 477; affirming S. C, 5 Lans. 519. And see Cooper v. Newman, 45 N. H. 337 ; Taylor v. Pope, 5 Coldw. (Tenn.) 413; Dixon v. Caldwell, 15 Ohio St. 412; Gilmore v. JSFewton, 9 Allen, 171; aark v. Wells, 45 Yt. 4; S. C, 12 Am. Rep. 187. But one whose money is wrongfully converted can- not recover property bought with such money from one who has pur- chased it in good faith from the party who was guilty of the conversion. 71 562 ACTIONS FOR TOETS OE WEONGS. Trover — For what property. Marsh V. Mchards, 3 Hun, 550 ; S. C, 6 Sup. Ct. (T. & C.) 29. Where possession of property is obtained hy a trustee, as such, and he refuses to deliver up the same on demand to the cestui que trust, who is entitled to the possession, the trustee is liable in trover as for an unlawful conversion. Smith v. Frost, 70 N. T. 65 ; aflSrming 7 Jones & Sp. 389 ; 10 id. 87. Trover may be maintained against a personal representative, as such, though the goods never came into his hands. Ferrill v. Brewis, 25 Gratt. (Va.) 765. And the action will lie for the unlawful intermeddling with personal property against the owner's consent, although before the suit the property has been returned to him. Arnold v. Kelly, 4 W. Va. 642. "Where posts belonging to the plaint- iff had, without his consent, been used by contractors in building a fence belonging to the defendant, the latter was held liable in trover for the value thereof. St. Louis, etc., R. H. Co. v. Kaulbrumer, 59 111. 152. One who purchased lands converted to his own use, with- out knowledge of the true ownership, certain fence-rails which had been borrowed and placed upon the land by a tenant under the vendor, and it was held that the remedy of the true owner of the rails was by action of trover. Ogden v. Lucas, 48 HI. 492. So, trover lies against a person who removes a quantity of fence from the land of its owner, although such person was acting at the time under the direction of town officers, and mistakenly supposed the fence to be upon the land of the town. Smith v. Colby, Q^ M.q. 169. And see Yost y. Stout, 4 Coldw. (Tenn.) 205; Dawson v. Powell, 9 Bush (Ky.), 663; S. C, 15 Am. Eep. 745 ; Ford v. Surget, 18 Alb. L. J. 493. And generally any person aiding or assisting in the conversion of property is liable for his act, whether he acted for himself, or for another, or merely out of motives of friendship for one who had the property, or merely as the servant of a person who directed him to do the act. Oreenway v. Fisher, 1 Carr. & Payne, 190 ; Nations v. Hcmkins, 11 Ala. 859. For wliat property. It must be proved that the chattels for tlie conversion of which the action is brought are personal property or chattels, for the action does not lie for things which are a part of the freehold, nor for any injury to real estate. As to what is real estate, see Fixtures, ante, 226 ; Sales of Land, etc., ante, 237. Trover lies for all personal chattels ; as for bank bills where the holder has not used due caution in receiving them. Snow v. Peacock, 3 Bing. 406; Snow v. Leatham,, 2 Carr. & Payne, 314; Fasley v. Grochford, 10 Bing. 243 ; Vol. I, 767, 797. So it lies for bills of ex- change, promissory notes, checks or other negotiable instruments ; Todd V. CrooTcsha/nks, 3 Johns. 432 ; Tru-ettd v. Barandon, 1 Moore, 534 ; ACTIONS FOE TORTS OR WRONGS. 563 Trover — For wliat property. Goggerley v. CuMert, 5 Bos. & Pul. (2 N. R.) 170 ; Lovell v. Martin, 4 Taunt. Y99 ; Knight v. Legk, 4 Bing. 589 ; Morrison v. Buchanan, 6 Carr. & Payne, 18 ; Jones v. Fort, 9 Barn. & Cress. 764 ; Decker v. Mathews, 12 N. T. 313 ; S. C, 5 Sandf. 439 ; for a policy of insurance, or any other valuable paper, whether it be an evidence of indebtedness or of title to things real or personal ; Stewart v. Martin, 49 Yt. 266 ; Stephenson v. Feezer, 55 Ind. 416 ; Powell v. Powell, 71 N. Y. 71 ; People V. Banli of North America, 75 id. 547 ; Ayres v. French, 41 Conn. 151. It lies for papers and exhibits filed as evidence in a case on trial before a justice of the peace. Yates v. Pelton, 48 Yt. 341. Also for boots of account, vouchers, manuscript drawings, or copies. Ayres v. French, 41 Conn. 451. Also for certificates of stock in an incorporated company. lb. ; Fisher v. Brown, 104 Mass. 259 ; Neiler V. Kelley, 69 Penn. St. 403 ; Freeman v. Earwood, 49 Me. 195 ; Cousland v. Davis, 4 Bosw. 619. For gold or silver coins. Chapman V. Cole, 12 Gray, 141 ; or for money in a bag, letter, or sealed package. Moody V. Keener, 7 Port. (Ala.) 218. It lies for domestic animals, or for wild animals which have been reclaimed, ante, 471 ; or for coal severed from the mine ; or for trees after they have been cut down and become personal property. Ante, 469. It lies for sand, gravel, ore, or any thing pertaining to the freehold after it has been severed there- from, Riley v. Boston Water Power Co., 11 Cush. 11 ; Northam v. Bowden, 11 Exch. 70, such as growiag crops, grass, trees, etc. Forsyth V. Wells, 41 Penn. St. 291 ; Whidden v. Seelye, 40 Me. 247. It lies for a building that has been severed from the freehold and removed ; Pullen V. Bell, 40 Me. 314 ; Adams v. Qoddard, 48 id. 212 ; Hinckley v. Baxter, 13 Allen, 139 ; Dame v. Dame, 38 N. H. 429 ; Davis v- Taylor, 41 111. 405 ; or for a building upon the defendant's land, by agreement between the parties considered as not affixed to the freehold, which the defendant has wrongfully fenced in. Lyon v. Kramer, 24 Hun, 231 ; or for manure that is severed from the freehold and carried to other premises ; Fay v. Muzzey, 13 Gray, 53 ; or that is not in- corporated with the soil Noble v. Sylvester, ' 42 Yt. 146 ; Strong v. Doyle, 110 Mass. 92; Haslem \ . Lockwood, 37 Conn. 500; S. C, 9 Am. Rep. 350. Thus, if a person rakes the accumulated manure of a public street into a heap, with the intention of removing it, he may main- tain trover against a person who carts it away. lb. So a land-owner or his licensee may maintain trover against one who has purchased, and received possession of wild berries from trespassers who picked them upon his land. Freeman v. Underwood, %6 Me. 229. Trover lies for a whale, killed, anchored and marked. Bourne v. Ashley, 1 Low. Dec. 564 ACTIONS FOR TORTS OR WRONGS. Trover — For what property. 27 ; Tdber v. Jenny, Sprague (C. C), 315. And where a person has cut and piled wood, grass, rushes, etc., on public or vacant lands, with the intention of removing the same, he acquires such title thereto by the yeyj act of severance as will uphold an action of trover against any person converting the property severed. Northam v. Bowden, 11 Exch. 70 ; Rome v. Hrenton, 8 B. & Sm. 327 ; Haslem v. LocJcwood, 37 Conn. 500 ; S. C, 9 Am. Rep. 350. Trover will lie for an undivided part of a chattel, as for three-fourths of a ship, or one-eighth of a sloop. Watson v. King, 4 Campb. 272 ; White v. Osborn, 21 Wend. 72. And see Tyler v. Taylor, 8 Barb. 585. The general doctrine is well established, that one tenant in com- mon cannot sue his co-tenant for his part of the joint property or its proceeds, until it is divided, or the co-tenant has done some act incon- sistent with the ownership in common, or amounting to a denial of his right. Bertrand v. Taylor, 32 Ark. 470 ; Hewlett v. Owens, 51 Cal. 570; Estey v. Boardman, 61 Me. 595; Oshorn v. Solienck, 18 Hun, 202. But where one co-tenant applies the common property exclu- sively to his own use to the total exclusion of his co-tenant, and refuses to sever, where a severance is possible trover, will lie against him. Fiquet V. Allison, 12 Mich. 328 ; Strickland v. FarJcer, 54 Me. 263 ; Agnew v. Johnson, 17 Penn. St. 377 ; Lobdell v. Stowell, 51 N. Y. 70; Stall v. Wilbur, 77 id. 158. Where property owned by tenants in common is separable in respect to quantity or quality by weight or measure, each tenant in common may demand his share of his co-tenant having possession of the whole, and upon a refusal or a conversion by such co-tenant, may sue in his own name without joining all the other CO tenants. lb. ; Ghannon v. Lusk, 2 Lans. 211. The sale or destruc- tion, by one tenant in common, of the whole property, in defiance and denial of the right of his co-tenant, is such a conversion as will sustain an action in the nature of trover. White v. Oshorn, 21 Wend. 72; Wil- son V. Reed, 3 Johns. 175 ; Hyde v. Stone, 9 Cow. 230 ; Sheldon v. Skinner, 4 Wend. 525, 530 ; Brightman v. Eddy, 97 Mass. 478 ; Boston V. Morris, 25 N. J. L. 173 ; White v. Brooks, 43 N. H. 402 ; Turner v. Waldo, 40 Vt. 51 ; Green v. Ediok, 66 Barb. 564. Where the property owned in common consists of shingle mills or machines, a clapboard or siding mill, an engine, etc., which are used in a building for manufacturing lumber, and one co-tenant removes the property from the building where it was used, and carries it several miles distant, and puts it into a building of his own, and uses it for the purpose of manu- facturing his own lumber, this is such a destruction of the property as will sustain an action of trover against hirn by his co-tenant. Benedict ACTIONS FOR TORTS OR WRONGS. 565 Trover — For what property. V. Howard, 31 Barb. 569. In the case cited the mill was not actually destroyed, but it was so annexed by the defendant to his lands as to change its character from personal property to realty, and located where the plaintiff could not repossess himself of it without committing a trespass. See Oshorn v. Schench, 18 Hun, 202, 205. It is not necessary for one part-owner, in an action against his co- owners for a conversion, to show that the property has been destroyed, but it is enough if it appear that they have sold it as their own exclu- sive property, ignoring his right to it. Weld v. Oli/oer, 21 Pick. 559, 563 ; Dyckman v. Valiente, 42 N. Y. 549. Nor is the remedy con- fined to an action against the co-tenants. The tenant whose property has been sold may, in case the purchaser should also sell and deliver the property as his own, maintain trover against such purchaser for the subsequent conversion. lb. Or, if opportunity offers he may retake possession of the property. White v. Osborn, 21 Wend. 72. So, if one tenant in common changes the quality, character or form of the property by manufacturing it without the consent of his co-tenant, ex- press or implied, he is liable in trover. Allen v. Harper, 26 Ala. 686 ; Yamhill Bridge Co. v. Newly, 1 Oregon, 174; Reddingtony. Chase, 44 N. H. 36 ; Kilgore v. Wood, 56 Me. 154. But it is held that tro- ver will not lie by one tenant in common of a chattel against another, simply because the latter claims to be the exclusive owner, and locks up the property ; and that a loss, destruction or sale must be shown. OUhert V. Dickerson, 7 Wend. 449. But it will be seen from the cases cited above that an action for trover will lie against a co-tenant where there has been no loss, sale or destruction of the common prop- erty, if there has been such an exclusion of the co-tenant from its enjoy- ment as to have the same effect. One joint owner of a cliattel — as, for instance, of machinery used in working an oil-well — may maintain trover against his fellow, if the lat- ter so dismantles or disposes of the property as to render it unfit for the use for which it was designed. Given v. Kelly, 85 Penn. St. 309. Where the mortgagee of the interest of one tenant in common of a chattel causes the whole chattel to be sold at a public sale, by virtue of his mortgage, one who purchases and takes possession of the chattel at such sale, with notice of the rights of the other tenant in common thereof, is liable to the latter in an action by him for the conversion of his inter- est therein. Yan Daren v. Baity, 11 Hun, 239. See Osborn v. SchenoTc, 18 id. 202. One joint owner of a ship or a chattel, who has its exclusive possession and use, is not responsible to his co-owners for carelessness in the use 566 ACTIONS FOE TOETS OE WEONGS. Trover — For what property. of it. Moody v. Buck, 1 Sandf. 304. If the other owners are not satisfied to have it in his care, they must themselves look to the protection of their own property. lb. Each owner of a ship has a distinct and sepa- rate interest as tenant in common, and each owner may or may not, as he deems fit, insure his particular share. MoGready v. Woodhull, 34 Barb. 80, 82. As a general rule, the property held in common cannot be divided, unless by the consent of all the owners. One tenant in common cannot set apart a portion of the common property for his co-tenant, and hold the remainder as his own, however just may be the division. Sheldon V. Skinner, 4 Wend. 525, 530 ; Fohes v. Shattuok, 22 Barb. 568-570. This must be the rule when the property held in common consists of several things of different qualities or value, or where it embraces but one thing, which cannot be divided without destroying its nature or identity. But where the property is severable in its nature, is kept in common bulk, and is of the same quality and value, each tenant may sever and appropriate his share, if it can be ascertained by measurement or weight, without the consent of his co-tenants, and may sell or destroy it without being liable to them in an action for the conversion of the common property. lb. The title to property, or the right of action for an injury to it, or for a conversion of it, sometimes depends upon a title by accession. This is a species of title by which a person acquires a right' to property, or a property in it, in consequence of its 'belonging to another thing ; as, by growing out of it, or being added to or combined with it. It is a mode of acquiring property which is founded upon the principle that an ac- cessory thing follows or belongs to its principal thing. And this rule is carried so far, that the owner of the principal thing becomes absolute proprietor of all that belongs to it or is added to or connected with it as an accessory thing ; whether such addition be by its own increase, as the fruits of the earth, the young of animals, or the operation of natural causes, as the gradual deposit made upon land by a stream ; or by the voluntary act of another, who unites his property with it, as by the interweaving of materials, welding of iron, painting on another's tablet, writing on his parchment, building or planting on his soil, or by the mixing together of things dry or liquid, or by manufacturing new articles out of old materials. This principle of law entitles the owner of property to all that it produces, either naturally or artificially, by the skill or labor of another, even where such addition extends to a change of form or materials ; and by which, on the other hand, the possessor of property becomes entitled to it, as against the oi-iginal owner, where ACTIONS FOR TORTS OR WRONGS, 567 Trover — For what property. tlie addition made to it by his skill and labor is of greater value than the property itself, or where the change effected in its form is so great as to render it impossible to restore it to its original shape. The origi- nal owner of any thing which receives an accession, either by natural or by artificial means, as by the growth of vegetables, the pregnancy of animals, the embroidering of cloth, or the conversion of wood or metal into vessels or utensils, is entitled not only to his title to the property, but also to the possession of it, in its improved state or condition. But the owner must be able to prove the identity of the original materials, for if wine, oil or bread be made out of another man's grapes, olives or wheat, they belong to the new operator, who is bound to make compensation or satisfaction to the former proprietor for the materials which he has so converted. But it is only in cases in which property is converted into a different species by an innocent holder or purchaser, that the true owner is deprived of his title to the property, and com- pelled to accept of satisfaction or compensation for it, in place of the original materials. Belts v. Lee. 5 Johns. 348 ; Curtis v. Groat, 6 id. 168; Chandler v. Mson, 9 id. 362; BahooeJc v. Gill, 10 id. 287. A willful trespasser or wrong-doer cannot acquire any title to the property of another, by any change which can be made in it by his labor and skill, however great the change may be, provided it can be proved that the changed or improved article was made from the original materials, lb.; Silsbury v. McCoon, 3 K Y. 379 ; Barry v. Brune, 8 Hun, 395 ; S. C. affirmed, 71 N. Y. 261 ; Firmin Y.Firmin, 9 Hun, 571 \-Snyder V. Vaux, 2 Rawle, 423 ; Wellard v. Rice, 11 Mete. 193 ; Wingiate v. Smith, 20 Me. 287; Wetheriee v. Green, 22 Mich. 311. Thus where a quantity of corn was taken from the owner by a willful trespasser and converted by him into whisky, it was held that the property was not changed, and that the whisky belonged to the owner of the original materials ; and that a creditor having an execution against the owner of the corn might, in such a case, seize and sell the whisky to satisfy his debt. Silsbury v. MoCoon, 3 N. Y. 379. See Newton v. Porter, m id. 133; S. C, 25 Am. Rep. 152. A party who takes the property of another in good faith and in re- liance upon a supposed right, and not intending to commit a wrong, and expends thereon money or labor, thereby working as great a trans- formation as timber undergoes in being transformed from standing trees into hoops, acquires a property therein that cannot be followed into his hands and reclaimed by the owner of the trees. Wetherhee v. Green, 22 Mich. 311 ; S. C, 7 Am. Rep. 653. And see Isle Roijal Mining 568 ACTIONS FOE TOETS OR WEOJSTGS. Trover — For what property. Co. V. Eertm, 37 Mich. 332; S. 0. 26 Am. Eep. 520, and note at the end of the case. The title by accession is somewhat similar to that of title by confusion of goods, chattels or property belonging to different owners. By the rules of the common law, a confusion of goods occurs when the goods of two or more persons become so intermixed that they cannot be dis- tingnished or separated. There was originally a difference between confusion, and a commixtion of goods. By the former was intended such an intermixture or interfusion as that of liquids, fluids, or metals, while by the latter was meant an intermixture of dry articles, such as wheat, corn or other grain, or similar things. The distinction which formerly existed is not observed, and the term " confusion " relates to an intermixture of any kind of goods or chattels. The general rule of law in relation to confusion of goods is, that when it is done by mutual consent, the owners become tenants in common of the property ; but, if it is done otherwise, the whole belongs to the innocent owner, unless the goods can be easily distinguished and sepa- rated, as in the case of furniture, or other similar things ; in which case no change of ownership takes place. If grain or flour are mixed together by consent, and are of equal value, the owners will share equally. And where the wheat of the plaintiff was mixed with that of the defendant, by being put into a common bin, with the consent of both parties, and the defendant afterward sold the whole, it was held that the intermixture created a tenancy in common between them, and that the sale by the defendant rendered him liable to the plaintiff in trover. Nowlen v. Colt, 6 Hill, 461 ; German National Bank v. Meadowcroft, 95 111. 124 ; S. C, 35 Am. Eep. 137. There is not properly a confusion of goods, if they can be distinguished and identified, as in the case of a wrongful taking of logs by one man from another, and mixing them with his own. But, if he should fraudulently or wrongfully take such logs, and manufacture them into boards, and then intermix them with his own in a common pile or stack of boards, so that they could not be distinguished, this would constitute a confusion of goods ; and the owner of the logs thus wrongfully taken may maintain replevin or trover for the whole pile of boards. Wingate v. Smith, 7 Shep. 287. The gen- eral rule is, that if one person willfully mixes his money, grain, chattels or property with that of another man, without his approbation or knowledge, the law, to guard against fraud, will give the entire prop- erty to the innocent party, without any compensation or account. There may be cases in which confusion takes place without the consent or negligence of either party, as in the case of an unavoidable accident. ACTIONS FOE TOUTS OE WEONGS. 569 Trover — For what property. In such a case the just rule would be to hold the parties tenants in common, with interests proportionate to the quantity of property thus casually contributed by each of them. If a freshet floats the wood of different owners into a river where the property of one is mingled with and undistinguishable from that of the other, the owners become tenants in common. And if one owner gather and take possession of the whole, he is not liable for conversion, but he holds it subject to the other's right to take his portion, and is entitled to compensation for his labor. Moore v. Erie Railway Go., 7 Lans. 39. And see Vining v. Baker, 53 Me. 544 ; Hill v. Rdbison, 3 Jones (N. 0.) 501. If A. turns his cattle into the pasture of B., and they become mingled with B.'s cattle, and B. refuses to let A. have his cattle back again, A. may maintain trover for them, because the cattle can be identified and distinguished from B.'s. Leonard v. Belknap, 47 Yt. 602. And see Alley v. Adams, 44 Ala. 609. But if the owner of goods willfully and wrongfully mixes them with those of another, of a differ- ent quality and value, so as to render them undistinguishable, he will not be entitled to any part of the intermixture. The Idaho, 93 U. S. (3 Otto) 575. And see Weil v. Silverstone, 6 Bush (Ky.j, 698 ; Thomas V. Colton, 27 Iowa, 425. A confusion of goods which results from the acts of a duly authorized agent is the same in its results to the principal as though he did the acts himself. But if the acts done by his agent are unauthorized, the principal will not be bound by them. Yol. I, 386. A sale of the true owner's wheat by one who has possession of it for the mere purpose of shipping it to such owner's consignee, is void, as against such owner, and does not pass any title, although the person selling it may have sold it innocently in the belief that it was his own, and although the purchaser bought and received it in good faith, for value, and on the faith that the seller was the true owner. Williams V. Mason, 4 Bosw. 156, 1,68. And where a person has possession of grain for transportation or shipment, and he mixes the owner's wheat with other wheat of the same description and quality, whether it be- longs to himself or to other persons without the consent of the owner, the latter will not lose his title to his wheat ; and he may call for a division of the grain ; or, when the other part owners have received their share from the common mass, he may claim and recover the re- mainder as his separate parcel. lb. Where the owner of goods em- ploys an intermediate agent for the sole purpose of forwarding them to their destination, and necessity or convenience requires that the property should be placed temporarily in the agent's possession, that will not 72 570 ACTIONS FOE TORTS OR WRONGS. The conversion. anthorize the agent to sell or pledge the property, if he is not intrusted with any of the documents of apparent ownership. And if he wrong- fully appropriates the goods, and an honest and innocent purchaser obtains them from him, that will not divest the owner of his original property, nor deprive him of the power of reclaiming them or their avails or value. lb. ; ante, 34. The right of the owner in such a case does not depend upon an identification of the very grains of wheat formerly owned by him. lb. A commission merchant who re- ceives such wheat, and makes advances thereon, does not stand in any better position than an innocent purchaser. lb. Where a sale of grain was made on the terms that the cash was to be paid on the delivery of the grain at a specified store-house, and the grain was delivered and mixed with other grain of the same kind, but with- out any waiver of the cash payment, which was duly demanded and insisted upon by the vendor, it was held that this was not such an ad- mixture as to make the owners of such grain tenants in common of the entire mass ; and that the vendor did not lose his ownership, but re- mained the owner of the quantity delivered as though it had not been so mixed. Morgan v. Gregg, 46 Barb. 183. In such a case the vendor has a right, as against the purchaser, to take that amount from the com- mon bulk, and if the purchaser refuses to allow this to be done he will be guilty of a conversion of the vendor's grain, and liable in trover therefor. lb. Where the plaintiff cut timber on the defendants' land and inter- mingled it with his own, marking it with the same mark, and the de- fendants not being able to identify the timber cut from their land, and intending in good faith only to retake their own timber, actually took more ; it was held that the defendants would not be liable as wrong-doers, until the plaintiff had pointed out his property and de- manded it of them. Smith v. Morrill, 56 Me. 566. The conTersion. In an action of trover it is indispensable that the plaintiff should show that the defendant has been guilty of an unlawful conversion of the property in question. In law, conversion consists in an unlawful turning or applying of the personal goods or chattels of the owner to the use of the taker, or of some other person than the owner ; or the unlawful destroying or altering of their nature. Conversion is an unauthorized act which deprives another of his property permanently or for an indefinite time. Hiort v. Bott, L. R., 9 Exch. 86 ; Pease v. Smith, 61 N. Y. 477, 481. When a party takes away or wrongfully assumes a right to goods which belong to another, it will, in general, be sufficient evidence of a ACTIONS FOE TOETS OE WEONGS. 571 Conversion by a wrongful taking. conversion ; but where the origmal taking was lawful, as where the party found the goods, and their detention alone is illegal, it is absolutely necessary to make a demand of the goods, and there must also be a re- fusal to deliver them before the conversion will be complete. If. the original taking was xinlawful, that will of itself be a conversion. To constitute a conversion there must be an intention on the part of the defendant to take to himself the property of the goods, or to de- prive the plaintiff of it. If the entire article is destroyed, as, for in- stance, by burning it, that would be a taking of the property from the plaintiiT and depriving him of it, although the defendant might not be considered as appropriating it to his own use. A conversion, then, may be evidenced by a wrongful taking of the goods of him who has a right to the immediate possession of them ; or by the fact that the defendant has destroyed the goods in question, or has participated in their desti-uetion ; or it may be evidenced by the fact that the defendant has wrongfully and unlawfully asserted title to the chattel, or assumed dominion over it ; and in cases like the preced- ing, no formal demand of the goods and a refusal to deliver them need be shown in order to support an action for their recovery, or their value in damages. A. demand and refusal are, however, necessary in all cases where the defendant became in the first instance lawfully possessed of the goods, and the plaintiff is not prepared to prove some distinct actual conversion of them. There are some cases in which a party is not necessarily guilty of a conversion, merely because he does not at once restore the chattel in dispute, as where it is not at the moment of demand in his possession, or under his immediate control; or where he desires to ascertain whether the demand is made by one who is lawfully entitled to the property. MoEntee v. New Jersey Steamboat Co., 45 N. Y. 34 ; Whitney v. Slauson, 30 Barb. 278 ; MoGormick v. Pennsylvania Central R. R. Co., 80 IST. Y. 353, 356. From what has been thus far said, it is evident that the action of trover is one which is peculiarly adapted for trying the title to goods and chattels. And in most of tlie actions of trover which are brought, the principal question litigated is that relating to the title to the property in dispute. Actions in the nature of trover are frequently brought too, for the reason that this form of action will often lie where trespass will not. Ante, 649. Conyersion toy a wrongful taking. As a general rule, proof by a plaintiff that the defendant has wrongfully and unlawfully taken his goods and chattels is, of itself, proof of a conversion, and not merely evi- 572 ACTIONS FOR TOETS OR WRONGS. Conversion by a wrongful assumption of the property. dence of it, and generally, whenever trespass will lie for a wrongful taking of goods, so will trover. Ireland v. Horseman, 65 Mo. 51. There may, however, be a wrongful taking or removing of goods, which is aetionable, although trover will not lie ; as where the owner of a ferry refused to take a passenger's horses, and removed them from the boat, and set them at large on shore, which was held not to be in itself conversion. Fouldes v. WillougJiby, 8 Mees. & Wels. 540. It has never yet been held that the single act of removing a chattel, independent of any claim over it either in favor of the person himself or any one else, amounts to a conversion of the chattel. There must be either an assertion of dominion over the property, or an act incon- sistent with the right of the plaintiff to constitute conversion. Fouldes V. Willoughhy, 8 Mees. & Wels. 540 ; Heald v. Garey, L. R., 7 Q. B. 61G ; McCormicIc v. Pennsylvania Central B. R. Co., 80 N. T. 353. If a railroad company receive oats for transportation in a sealed car which is not to be opened until it reaches its place of destination, and, while in transit, for its own convenience, opens the car and transfers the oats to another car, this interference with the car and its contents will not sustain an action of trover. Tucker v. Housatonio R. JR. Co., 39 Conn. 447. And see Garland y. Carlisle, 2 Cr. & M. 31. A servant who without permission takes away his master's goods on leaving his service is guilty of an unlawful taking which is of itself a conversion, for which an action will lie without any previous demand. Pilsbury v. Webb, 33 Barb. 213. After such a taking his possession is not that of a servant, but of a wrong-doer. lb. Where property is wrongfully taken from the possession of the owner, he can maintain an action to recover the possession from the wrong-doers, or its value in damages, without a previous demand. New Yo^'k Qa/r Oil Co. v. Richmond, 6 Bosw. 213. Conversiori by a wrongful assumption of tlie property. If one party claims the goods or chattels of another as his own, or if he asserts the rights of another person to them as owner, this will be evidence of a conversion. The very act of assuming to one's self the property and right of disposing of another man's goods is a conversion. Burroughs V. Bayne, 5 Hurlst. &. Norm. 296; Webber y. Z>avis, 44 Me. 147 ; Car- ter V. Kvngmam,, 103 Mass. 519. Thus, where the defendant received a number of firkins of butter, a part of which he was notified belonged to the plaintiff, but notwithstanding this he shipped them all as his own, this was held to be a conversion of the plaintiff's property, for which he was liable. Boyce v. Brochway, 31 N. T. 490. So, where the holder of two promissory notes purporting to be made by the plaint- ACTIONS FOR TORTS OR WRONGS. 573 Conversion by a wrongful assumption of the property. iff, under the pretext of counting the money which the plaintiff had sent by an agent to pay them, and with knowledge of the fact that the plaintiff did not intend to pay the notes except on their being surren- dered, took the money up from the table where it lay, and putting it in his pocket, without the consent of the plaintiff's agent, seized the notes and refused to surrender either of them, it was held that the taking of the money was tortious and wrongful, that no title to it passed to the defendant, and that he was liable for its conversion. McNaughton v. Cameron, 44 Barb. 406. And see Gordon v. Hos- Utter, 37 N. Y. 99 ; S. C, 4 Abb. (N. S.) 263. One who purchases property from another who asserts title thereto inconsistent with the owner's right is equally as chargeable for the conversion as the seller if he sells or disposes of the property, or refuses to deliver it to the owner after a lawful demand made by him ; ClarTc v. Wilson, 103 Mass. 219; S. 0., 4 Am. Rep. 532; and so of any person aiding or abetting the same. Billiter v. Young, 6 El. & Bl. 1. If a person pledges the property of another without authority. Carpenter v. Hale, 8 Gray, 157 ; Thrall v. Lathrop, 30 V"t. 307, or having it with author- ity to sell for cash, sells it and takes a note, or exchanges it for other property, Haas v. Damon, 9 Iowa, 589, or uses it for another purpose, Crocker v. OuUifer, 44 Me. 491, it is a conversion. See, also, Hol- Uns V. Fowler, L. R., 7 H. L. 767; Hiort v. Bott, L. R., 9 Exch. 86 ; S. C, 8 Eng. Rep. 529. A clerk, servant or agent who converts the goods of another for the benefit of his employer is liable in trover as much as though done for his own benefit. Stephens v. Elwall, 4 Maule & Selw. 259. So, where a man intrusted with the goods of another puts them into the hands of a third person, without orders, it is a conversion ; as where the owner of goods, on board of a vessel, directed the captain not to land them on a wharf, against which the vessel was moored, which he promised not to do, but afterward delivered them to the wharfinger for the owner's . use, under the idea that the wharfinger had a lien upon them for the wharfage fees, because the vessel was unloaded against the wharf, it was held that the owner, upon a demand and refusal, might maintain trover against the captain, unless he could establish the wharf- inger's right ; for by putting the goods into the custody of the wharf- inger it brought a charge upon the plaintiff, and it was therefore a conversion by the defendant. Syeds v. Hay, 4 Term R. 260. So, if the holder of a bill of exchange for a specific purpose, gets it discounted and receives money upon it, this is a conversion of the whole bill, even though he may have received only a part of the money due upon it. 574 ACTIONS FOE TOETS OE WEONGS. Conversion by a wrongful assumption of the property. AUager v. Close, 10 Mees. & "Wels. 576. So the maker of a negotia- ble promissory note may maintain trover against one who wrongfully negotiates it before it has any legal inception. Decker v. Mathews, ■12]Sr. Y. 313 ; S. C, 5 Sandf. 439. See Gomstooh v. Hier, 73 N". Y. 269. Where one person makes use of a thing found by him, or delivered to him, against the owner's consent, it will be a conversion ; as if a car- rier should draw out a part of the contents of a vessel containing liquor and then fill it up with water, this would be a conversion of all the liquor. Richardson v. Atkinson, 1 Strange, 576 ; Bench v. Walker, 14 Mass. 500. So if a person having possession of a cask of wine, as carrier or bailee, takes or consumes a part of the wine, it is a conversion of the whole if the owner so elects to treat it. Philpott v. Kdley, 3 Ad. & El. 106. The case would be the same if a carrier or wharfinger should break open a box containing goods and sell them. So if a per- son comes into possession of land, and he finds chattels there which he removes to a great distance, that will be a conversion. Forsdick v. Collins, 1 Stark. 173. The plaintiff, being the owner of a quantity of saw-logs, lying upon the land of the defendant, went to take them away, but was forbidden by the defendant, who threatened to sue him if he did, and afterward sold a part of them ; and this was held to be a con- version of all the logs. Sherman v. Way, 56 Barb. 188. In another case, the defendant, under pretense that he wanted the plaintiff to do his threshing, induced him to move his threshing machine into the defendant's barn. The defendant then notified the plaintiff that he did not wish him to do his threshing ; claimed the wheels of the wagon upon which the machine was transported ; and gave notice that he should retain them, but offered to allow the machine to be taken with- out the wheels. In an action of trover it was held that the defendant was guilty of converting not only the wheels, but the machine. Bowen v. Fenner, 40 Barb. 383. See Clark v. Wells, 45 Yt. 4. Where one acts as an agent for another in the sale of property, he will be liable to the true owner for the value of the property, if the person employing him to sell had no title to the property, nor any right to sell it ; as where the defendant, a jeweler, received from A. a set of diamond ear-rings and pin, in the belief that A. was the owner, and acting on such belief he sold the jewelry to B., and received the pro- ceeds from him which he paid over to A. in ignorance of the plaintiff's title, and without any charge for services, but he was held liable, in trover, for the full value in an action by the true owner. BudZey v. Hawley, 40 Barb. 397 ; S. C. affirmed, 39 JST. Y. 441. He Avho assumes ACTIONS FOE TOETS OE WEONGS. 575 Conversion by a wrongful assumption of the property. to deal or intermeddle with chattels not his own must see to' it that he has a warrant therefor from the owner or from one who has authority from the owner to confer such warrant. lb. To constitute a conversion it is not necessary to show a manual tak- ing of the thing in question, nor that the defendant has applied it to his own use ; the assumption of a right to dispose of it, or the exercising of a dominion over it, to the exclusion of the plaintifE's right, or in defiance of it, is a conversion. Bristol v. Burt, 7 Johns. 254 ; Murray V. Burling, 10 id. 172; Reynolds v. Shahr, 5 Cow. 323 ; Peases. Smith, 61 ]Sr. Y. 477, 481 ; Lyon v. Kramer, 24 Hun, 231. So the action lies where property is levied upon, and an inventory and appraisal made, with a declared intention to sell. Oonnah v. Hale, 23 Wend. 462; Policy N.Lenox Iron Works, 2 Allen, 182; Alvordv. JIaynes, 13 Hun, 26. One who has converted property by means of a wrongful levy cannot relieve himself from liability by an offer to relinquish the levy. The injured party may refuse to accept the offer and recover the value of the property. Livennore v. Northrop, 44 N. Y. 107. A defendant in trover can mitigate damages by a return of the property only where the owner has accepted its return or has resumed domin- ion over it as owner. People v. BanTc of North America, 75 N. Y. 547. See McGormick v. Pennsylvania Central E P., 80 id. 353. If a sheriff seBs more goods than are necessary to satisfy an execution, he is liable for a conversion in respect to the excess. Aldred v. Constable, 6 Q. B. 381. And a landlord incurs the same liability by distraining and selling more goods than are necessary to satisfy the rent in arrears. Evans V. Wright, 2 Hurlst. & Norm. 527. But the mere seizure of more goods than are necessary to satisfy an execution or a distress, if the surplus is seasonably returned after the sale, is not a conversion. lb. A very slight agency or interference with property will make one liable in trover ; as, where a person acted as interpreter for the owner of the freehold, in forbidding the removal of a fixture by a purchaser of it under an execution, and afterward, in behalf of the former, forbade ' its removal. F-a/rra/r v. Chauffetete, 5 Denio, 527. It is not every interference with property, however, that will amount to a conversion of it. And merely taking a chattel mortgage upon per- sonal property, from a person who is in possession of it, is not a conver- sion, where tlie mortgagee never had possession of the property, or had any thing to do with it, except merely taking such mortgage to secure a debt due from the mortgagor to the mortgagee. Matteawan Go. v. Bentley, 13 Barb. 641. The mere mortgaging of a chattel by one of two joint owners thereof 576 ACTIONS FOR TORTS OR WRONGS. Conversion by demand and refusal. does not amount to a conversion of the chattel. Osborn v. Sohenclc, 18 Hun, 202. Nor does a removal of the property by the mortgagee, in the absence of proof of any assertion of an exclusive ownership, amount to a conversion. lb. And where mere words are relied upon to constitute a conversion, they must be uttered in proximity to the property, under such circumstances, as to show a determination to exercise dominion and control over it, and a defiance of the owner's rights. Gillet v. Roberts, 57 N. Y. 28. Conversion by demand and refusal. Where there has been an actual wrongful taking of goods or chattels^ no demand of them, before action, is necessary. The wrongful taking is of itself a conversion ; and there- fore a demand and refusal would be unnecessary for the purpose of constituting a conversion, or in strictness, serving as the proof of a conversion. Tomkins v. Haile, 3 Wend. 406 ; Esmay v. Fanning, 9 Barb. 176 ; S. C, 5 How. 228. But where goods or chattels have come to the possession of a person lawfully, the general rule is, that a demand of such property must be made of him before he can be guilty of a conversion of the property. Myerson v. Kauffield, 13 Hun, 387 ; Arosemena v. Hinckley, 11 Jones & Sp. 43. This rule, however, applies to those cases only in which the person has the property at the time of making the demand. For, if he received the property ever so innocently, but has converted it by a sale to some other person, he will be liable to the true owner for its value, without a demand and refusal before suit. Pease v. Smith, 61 N. T. 477; Esmay v. Fanning, 9 Barb. 176 ; Glassner v. Wheaton, 2 E. D. Smith, 352 ; Marine Bank v. Fiske, 71 N. Y. 353 ; ante, 561. Where, however, there has not been an act done which amounts to a conversion, there the general rule prevails that a demand is necessary before action is brought. Ryerson v. Kauffield, 13 Hun, 387 ; Rail v. Robinson, 2 N. Y. 293. It is held that where goods are wrongfully taken, and they after- ward come into the possession of another, he will be as much a wrong- doer as the original taker. But there is an exception to this rule ; for, if the second person received them innocently from the wrong-doer, and he proves that fact on the trial, it will be necessary for the plaint- iff to show that a. demand was properly made before the action was brought. Gillet v. Roberts, 57 N. Y. 28 ; Cormier v. Batty, 9 Jones & Sp. 70 ; Tallman v. Turck, 26 Barb. 167 ; Millspaugh v. Mitchell, 8 id. 333; Barrett v. Warren, 3 Hill, 348, 350. The same rule is applicable to the case of a purchase from a fraudulent. vendee. ACTIONS FOR TORTS OR WRONGS. 577 Conversion by demand and refusal. lb. It is to be remembered, however, that no purchase though en- tirely innocent, and for value, can deprive the true owner of his goods if they were stolen from him. Ante, S3. And, therefore, if he makes a proper demand of his property, it will be a conversion, if there is a refusal to give it up, even by an innocent purchaser for value. The rule is well settled that until demand and refusal trover will not lie against an innocent bona fide purchaser of chattels from a wrong- doer. But when the plaintiffs title and an original tortious taking ap- pear, the burden is cast upon the purchaser to show that he is free from fault, and came into possession of the property in a lawful manner, for a lawful purpose, and in perfect good faith. If he knew or had any reason to suspect or believe that he was dealing with one who had ac- quired the property unlawfully, he may be treated as a wrong-doer, without any demand by the true owner. Cormier v. Batty, 9 Jones & Sp. 70 ; Pierce v. Tan Dyck, 6 Hill, 613 ; Salomon v. Van Praag, 6 Hun, 529 ; Pease v. SmUh, 61 N. Y. 477. Trover will lie for the wrongful destruction of a promissory note without a demand and refusal. Powell V. Powell, 71 N. Y. 71. A larceny of goods in consequence of the negligence of a warehouseman constitutes a conversion by virtue of the wrongful taking, and no demand by the owner is necessary after notice to the warehouseman of the loss. Glafiin v. Meyer, 11 Jones & Sp. 1. Where goods have been converted by a bailee, it is presumed to be wrongful ; and trover may be maintained without a previous de- mand, although, in the first instance, the property came lawfully to the defendant. Wa7%ng v. Pennsylvania R. P. Co., 76 Penn. St. 49 1 ; Kyle V. Gray, 11 Ala. 233. Where property is delivered to two bailees jointly, a demand must be made of each before both can be made liable in trover. Mitchell v. Williams, 4 Hill, 13. But the rule is different in relation to partners, for the law makes each partner an agent for the other, and the acts of one will bind the entire firm in such a case. lb. And see Yol. I, 541 ; Ball V. LarJcin, 3 E. D. Smith, 555. But after a dissolution of the partnership, the demand must be made of all the partners. Sturges v. Keith, 51 111. 451. Generally, a demand to be valid and effectual must be made of the person who is sought to be charged with a conversion. The case of partners is an exception, as we have just seen. And there may be cases in which a demand and refusal by an agent would be suffi- cient, though such instances are exceptions to the general rule ; or, rather, the demand made upon the agent is regarded in law as a de- mand upon the principal. Cass v, W. Y. and New Saven B. R., 1 E. D. Smith, 522 ; Thompmn v. Sisxspenny Savings Bank of New YorTc, 73 578 ACTIONS FOE TORTS OR WRONGS. Conversion by demand and refusal. 5 Bosw. 293. Where one claims the ownership and possession of chattels, it is not necessary that he should have actual possession of them before he can be charged with their conversion. The possession of his agent is his possession, and if, on demand, he refuses to permit his agent to deliver the chattels, he is liable for a conversion the same as though such chattels had been in his own possession, and he himself had refused to deliver them. Rogers v. Weir, 34 N. Y. 463. But it is held that the plaintiff in an execution under which an oiEcer has seized personal property cannot be sued in trover, without a de- mand made upon him, and a refusal ; Mulheisen v. Lane, 82 111. 117 ; and that a demand on the officer who has made the seizure is insuffi- cient, lb. A married woman is not, from the mere relation of wife, such an agent of her husband as to render him liable in trover, for a conversion of goods on account of her refusal to deliver them up on demand. Livingston v. Stoessel, 3 Bosw. 19 ; Storm v. Livingston, 6 Johns. 44. And this rule has been carried so far as to hold that a husband is not liable in trover, without a demand upon him, even where his wife knowingly received stolen goods, when there was no evidence that the husband had any such knowledge. Ourney v. Kenny, 2 E. D. Smith, 132. Though a demand must be made upon the person sought to be rendered liable, it is not indispensable that the demand should be made actually and literally upon him in proper person, for a written demand will be sufficient, if left at his residence with some proper person. Logan v. Houlditch, 1 Esp. 22 ; Wathins v. Woolley, 1 Gow. 69. If the demand is a written one, it must be proved by the writing, or its absence must be accounted for, as in other cases. But if a verbal demand and a demand in writing are made at the same time, for the purpose of sustaining an action of trover, and neither notice has any reference to the other, evidence of the verbal demand will be sufficient ■without the production of the written notice. Smith v. Young, 1 Camp. 439. If a written demand is sent by mail, the burden is upon the plaintiff to show that the defendant received it long enough before the suit was brought, to enable him to deliver the property, and that he absolutely refused to deliver. Pattee v. Gilmore, 18 N. H. 460. So a demand in writing, left at the defendant's house, is insufficient, unless the circum- stances proved are such as to raise a presumption that he received it before suit brought. Wldte v. Demary, 2 id. 546. When a person is in lawful possession of personal property, which is demanded of him, he may, at the time of the demand, require reason- ACTIONS FOR TOETS OR WRONGS. 579 C!on version by demand and refusal. able evidence of the authority to make the demand, and a refusal to make such a delivery thereof , without such proof, is not sulficient evidence of a conversion. Tuttle v. Gladding, 2 E. D. Smith, 157. Where the demand is made by the person entitled to receive the property, and the refusal to deliver is absolute and unqualified, such refusal is ordinarily conclusive evidence of a conversion. But, if the re- fusal is qualified, the question is whether the qualification is reasonable ; and if reasonable and made in good faith, it is no evidence of a con- version. McEntee v. New Jersey Steamboat Co., 45 N. Y. 34 ; S. C, 6 Am. Rep. 28 ; Alexander v. Southey, 5 Barn. & Aid. 247 ; JSol- Irodk V. Wight, 24 Wend. 169 ; Rogers v. Weir, 34 JST. Y. 463 ; Mount V. Derick, 5 Hill, 455. If, at the time of the demand, a reason- able excuse is made in good faith for non-delivery, the goods being kept with a view to deliver them to the true owner, there is no conversion. McEntee v. New Jersey Stearnhoat Co., 45 N. Y. 34 ; S. C, 6 Am. Rep. 28. And see McCormicJc v. Pennsylvania Central M. R. Co., 80 N. Y. 353, 356. A bailee of property, to which there ai-e adverse claimants, has the right to refuse to deliver the same for such reasonable time as will en- able him in good faith to investigate the facts as to the real ownership thereof. But after such time has elapsed, and after the owner has offered to give a bond of indemnity satisfactory to the bailee, a refusal to deliver the property is a conversion. Roll v. Liney, 48 N. Y . 6 ; S. C, 8 Am. Eep. 511. Where the demand is made by an agent the defendant may require reasonable proof of his authority to receive the property, and unless reasonable proof is furnished, the demand and refusal afford no evi- dence of a conversion. Blankenship v. Berry, 28 Tex. 448. But if goods have been illegally seized and taken from a person, and a demand for them is made by a third person, the latter is not bound to show his authority, unless he is required to do so by the person in possession of the goods ; if no such requisition is made and the refusal is placed upon other grounds, the authority is admitted, and the objec- tion of a want of authority cannot be raised at the trial. Connah v. Hale, 23 Wend. 462. The defendant cannot attach any unreasonable conditions to a deliv- ery of goods on demand. If the clerk of a corporation, duly author- ized to act for his principal, refuses to deliver goods on demand without a written order for their delivery, his refusal is a conversion by the company, as such a condition cannot properly be attached to a delivery. Ba/mett v. Chrystal Palace Go., 1 B. & Sm, 984. And where the 580 ACTIONS FOE TOETS OE WEONGS. Conversion by demand and refusal. owner of property has made a contract with his bailee whereby the lat- ter is not bound to deliver the property except on the written order of such owner, the bailee cannot justify a refusal to deliver to a person succeeding to the ownership on the ground of the non-production of the written order of the former owner. Willner v. Morrell, 8 Jones & Sp. 222. A demand of satisfaction or of payment for the value of goods or chattels which have been lost is a sufficient demand to maintain trover. LaPlace v. Aupoix, 1 Johns. Gas. 407. The same rule obtains where the goods have been disposed of by the defendant. Thompson v. Shir- Icy, 1 Esp. 31. The demand must relate to the goods to which the party lays claim. A demand of fixtures is not a sufficient demand of articles which are not fixtures. Golegrave v. Dias Santos, 2 Barn. & Cress. 76. If a demand is made on the behalf of the plaintiff by a third person, it must be shown on the trial that such third person was au- thorized by the plaintiff to make the demand. An authorized demand is incapable of ratification. Vol. I, 401. It is not every wrongful act which deprives a party of the possession of his goods that amounts to a conversion. And where the plaintiff's goods and servants were on land which the defendant had recovered in an action of ejectment, and the defendant, on entering into possession of the land under a writ of possession, turned the plaintiff's servants off the land, and would not let them remain for the purpose of removing the goods, it was held that, in the absence of proof of a subsequent demand and refusal, the verdict of a jury that there was no conversion was conclusive. Thorogood v. Robinson, 6 Ad. & E. (N. S.) 769. In such a case neither the plaint- iff nor his servants had any right to remain upon the land, and the act of turning them off was lawful. And if the plaintiff desired to make ^ case of a conversion of the goods, he ought to have demanded them before action. And if the defendant had refused to deliver them he would have been guilty of a conversion. lb. "Where property is deposited by several joint depositors, a demand by all of them, or on behalf of all of them, is necessa.ry before an action can be maintained. Vol. I, 564; May v. Harvey, 13 East, 197. When a complete and perfect right of action exists in favor of one person against another for the wrongful conversion of personal property, this right of action may be assigned so as to give the assignee a right of action in his own name ; and in such a case no demand need be made by the assignee before bringing his action. McKee v. Jvdd, 12 N. Y- 622. An assignment for the benefit of creditors confers upon the assignee such a right of action in his own name. lb. ACTIONS FOE TORTS OR WRONGS. 581 Conversion by demand and refusal. But if, at the time of the assignment, the cause of action is not per- fect, as where personal property is wrongfully in the hands of another, but no demaind has been made for it previous to a sale or assignment of the property, the assignee must make a proper demand of the property before he can recover. Van Hassdl v. Borden, 1 Hilt. 128 ; McGinn v. Worden, 3 E. D. Smith, 355; Cass Y.New York and New Ha- ven R. R., 1 id. 522; Robinson v. Weeks, 6 How. 161 ; JTowell v. Kroose, 4 E. D. Smith, 357 ; Sherman v. Elder, 1 Hilt. 178. The assignee, in order to maintain his action,- must show either that a perfect cause of action existed and was assigned to him, or that the property was sold or assigned to him, and that a proper demand has been made therefor, lb. So in every other case, if the assignor was bound to do any act or make any demand before a right of action could exist, it must be shown that either the assignor did such act or made such demand befo2"e the making of the assignment, or that the assignee did it afterwards and before his action was brought. lb. Wben property is sold or assigned, which had been converted by another by a* sale thereof before the assignment, no a:ction can be main- tained by such assignee for such conversion. Duell v. Cudlipp, 1 Hilt. 166. And if the property has passed out of the hands of the person ' who sold it before the assignment was made, a subsequent demand of the property of him by the assignor, will not give a right of action. lb. In such a ease, the cause of action is perfect at the time the assign- ment is madfe, and the cause of action itself for such conversion, and not the property, is the proper subject of the assignment. lb.; Hill V. Oavell, 1 N. Y. 522. There may sometimes be a neglect or refusal to deliver goods on de- mand, and still not be a conversion of them. To render a demand and refusal of them equivalent to direct proof of a conversion of them, it must appear that the defendant had the actual possession at the time of the demand, and thus haid' the power to comply with it ; or tha,t before that time he had fraudulehtly parted with the goods with a view to evade the demand, or for his own benefit. Andrews v. Shattuolc, 32 Barb. 396. If, at the time wh&nthe demand is made, the'goods are in the actual possession of another, and the person of whom the demand is made has not, and never had, any control over them, the mere fact that he claims the; goods, and declares that they are his property, will not amount to a conversion. lb. To sustain an action of troter, the plaint- iff must show, affirmatively, such facts as are requisite to constitute a conversion. He must show a wrongful detention, alter a proper de- mand, if the case is one in which the defendant came lawfully into pos- 582 ACTIONS FOR TOETS OR WRONGS. Conversion by demand and refusal. session of the goods. Whitney v. Slauson, 30 Barb. 276. A mere neglect on the part of the defendant to deliver the goods on demand does not operate as a conversion of them, unless they are then in pos- session of the defendant. lb. The ability of the defendant to comply with the demand when made is an essential part of the proof, on the part of the plaintiff, to sustain an action for a wrongful conversion. lb. And without such proof, the action cannot be maintained. lb. ; Bowman v. Eaton, 24 Barb. 628. "Where there has not been an actual conversion of property, a demand and refusal cannot lay a foundation for an ac- tion of trover, unless, at the time of the refusal, the party has the prop- erty demanded in his possession, so that he can comply with the de- mand. Kelsey v. Griswold, 6 Barb. 436. See Tinker v. Morrie, 39 Yt. 477; Davis v. Buffum, 51 Me. 160; Johnson v. Couillard, 4 Allen, 446 ; Fillmore v. Horton, 31 How. 424. A demand and refusal to deliver do not establish a conversion, where, at the time of the demand, the property in question is not in existence. The accidental loss or destruction of an article by one lawfully in its possession is not a conversion. Salt Springs Nat. Bank v. Wheeler, 48 N. Y. 492 ; S. C, 8 Am. Rep. 564. Trover will lie where goods have been lost to the owner by the act of a carrier, though there may not have been any intentional wrong ; as, where goods are by mistake, or under a forged order, delivered to the wrong person. Hawkins y. Hoffman, %WiS!i,^'i^\ Packard w. Oetman, 4 Wend. 613. But this action will not lie for the mere omission of the carrier ; as, where the property has been stolen, or lost through his negligence, so that they cannot be delivered to the owner. lb. Mere nonfeasance does not work a conversion of the property ; and although the owner may have another action, he cannot maintain trover. lb. A demand and refusal does not make any difference in such a case, for that will not add any thing to the right of action. lb.; Magnim. v. Dins- more, 70 N. T. 410; S. C, 26 Am. Rep. 608 ; Scoville v. Griffith, 12 N. Y. 509. And see Westeott v. Fargo, a third party. Practicidly, negligence is the want or absence of the care and attention required by aU the circumstances of each particular case. It is not absolute or intrinsic, but is always relative to some circumstance of time, place or person. Richa/rdson v. Kiev, Si Cal. 63. And see Mowry v. Central City Railway, 66 Barb. 43 ; Railroad Co. v. Jones, 95 U. S. (5 Otto) 439 ; Cleveland v. Spier, 16 C. B. (N. S.) 399. The gist of the action of negligence is th.e fault of the defendant in neglecting to exercise such a reasonable degree of skill or diligence, or caution, and prudent foresight as under the cir- cumstances might have avoided the injury. Tally v. Ayres, 3 Sneed (Tenn.), 677 ; Garmon v. Bangor, 38 Me. 443 ; Carroll v. Staten Island R. R. Co., 65 Barb. 32 ; S. 0. affirmed, 58 N. Y. 126 ; S. C, 17 Am. Eep. 221 ; State v. Meager, 44 Mo. 356. Negligence is a vio- lation of that obligation which enjoins care and caution in what we do ; but even when gross, it is merely an omission of duty. Tonawanda R. R. V. Hunger, 5 Denio, 255, 266 ; S. C, 4 N. Y. 349 ; Carroll v. New Torh and New Raven R. R., 1 Duer, 571, 683. Whatever may be the grade of negligence, there is in it no intention to do a wrongful act, or to omit the performance of a duty. One may act in entire good faith and still be guilty of gross negligence. Lincoln v. Buckmaster, 32 Vt. 652. Whether a party has been guilty of negligence is said to be a mixed question of law and of fact. But in every case it must be a question of fact as to what acts or omissions actually occurred. And when those facts are clearly established, it may or may not be a question of law, whether the acts or omissions constitute such negligence in the one case as to render the defendant liable, or on the other hand to defeat the plaintiff's action. In courts of record, where a charge is given to the jury, it might be said that in some aspects of the matter the ques- tion of negligence is a mixed one of law and of fact. But it does not in reality amount to more than this ; the jury are instructed to find the facts from the evidence submitted to them, and they are then directed to apply the law to those facts as it may be laid down by the court. The ques- tion of negligence will not be withdrawn from the jury when the facts are disputed and the evidence is conflicting. Oagg v. Yetter, 41 Ind. 228 ; S. C, 13 Am. Eep. 322 ; Pennsylvania Canal Co. v. Bentley, ACTIONS FOE TORTS OR WRONGS. 587 Negligence. — What is such negligence as to be actionable. 66 Penn. St. 30 ; Eagan v. Fitchburg R. R. Co., 101 Mass. 315 ; Dol- finger v. Fishhaok, 12 Bush (Ky.), 474 ; Van Lien v. Scoville Manuf. Co., 4 Daly, 554; S. C, 14 Abb. (N. S.) 74. In some cases negligence is peculiarly a question of fact. It is a question of fact and should be decided as such, whenever men of ordinary prudence and discretion might differ as to the character of the act, under the circumstances of the case, and the positions and condition of the parties. Wlien tbe inferences to be drawn from the proof are not certain and incontro- vertible it cannot be decided as a question of law by directing a verdict or nonsuit, but must be submitted to the jury. Thurber v. Harlem Bridge, etc., R. R. Co., 60 N. Y. 326; Hayes v. Miller, 70 id. 112 ; Maker v. Central Park, etc., R. R. Co. , 67 id. 52 ; Cornwall v. Mills, 12 Jones & Sp. 45 ; Stachus v. Wew York Central <& Hudson River R. R. Co., 79 N. Y. 464 ; Massoth v. Delaware c& Hudson Canal Co., 64 id. 524. In a justice' s court, all questions of this sort are genei'ally submitted to the jury in the first instance, and they thus pass upon both the questions of law and of fact. To render the discharge of their duties plain and certain, it wUl be useful to illustrate the subject by some of the decided cases. It is an established maxim of the law, that every man must use his own property in such a manner as not to injure that of another person. And it has 'therefore been held, that an action lies against a party for so negligently constructing a hay rick on the extremity of his land, that in consequence of its spontaneous ignition, his neighbor's house was burnt down ; and in such a case the proper criterion for the guid- ance of the jury is, whether the defendant has been guilty of gross negligence, viewing his conduct with reference to the caution which a prudent man would, under the given cii'cumstances, have observed. Vaughan v. Menhve, 3 Bing. N. C. 468 ; Turbermlle v. Stampe, 1 L. Raym. 264 ; S. C, 1 Salk. 13. Every land-owner has the right to clear up his lands for cultivation, and for that purpose he may lawfully burn up logs, brush or rubbish, or burn fallows, if he does it at a proper time and in a proper manner ; but if, by reason of his carelessness and negligence, as by kindling of the fire at an improper time, or its subsequent careless management, it extends to his neighbor's lands, and burns his fences, his buildings, or other property, he will be liable for the damages caused by his negli- gent act. Olarh v. Foot, 8 Johns. 421 ; Stuart v. Hamley, 22 Barb. 619 ; Simons v. Monier, 29 id. 419 ; Hays v. Miller, 6 Hun, 320 ; S. C. affirmed, 70 N. Y. 112 ; Hervey v. Nourse, 54 Me. 256 ; Simonton V. Loring, 68 id. 164 ; Miller v. Ma/rtin, 16 Mo. 508 ; Gilson v. North 588 ACTIONS FOR TORTS OR WRONGS. Negligence. — What is such negligence as to be actionable. Grey, etc., 33 Up. Can. (Q. B.) 128 ; Webl^. Rome, Watertown da Og- denshv/rgh R. R. Co., 49 N. T. 420. A person building a fire upon his own premises cannot be made liable if it escapes upon his neigh- bor's premises and does him damage without proof of negligence. Clark V. Foot, 8 Johns. 421 ; Stuart v. Ilawley, 22 Barb. 619 ; Calkins V. Barger, 44 id. 424 ; Lansing v. Stone, 37 id. 15 ; S. C, 14 Abb. 199 ; Ba/rnard v. Poor, 21 Pick. 378 ; Tov/rtellot v: Rosebrook, 1 Mete. 460 ; BatcJielder v. Heagan, 18 Me. 32; Losee v. Buchana/n, 51 N. Y. 476, 487; S. C, 10 Am. Rep. 623. In one case the defendants were engaged, under a contract with the State authorities, in removing a sunken boat from the chailnel of the canal, bj means of a steam dredging machine, in the vicinity of the plaintiffs farm buildings. They used wood for fuel, and without any spark-catcher or screen upon the smoke-stack . A high wind blew the sparks and cinders to the farm buildings and over them, and the defend- ants were notified by the plaintiffs agent or servant of the danger to such buildings ; but, notwithstanding this notice, the defendants con- tinued to use their dredging machine, and to keep up the fire therein, ■without putting on a spark-catcher, or using any precaution to prevent injury from fire. The plaintiffs- buildiings were burned in consequence of a fire which originated from sparks that were blown into a pile of straw, which ignited and occasioned the fire ; and this was held to be such negligence as renderisd the defendants liable for the damages re- sulting from the fire. Teall v. Barton, 40 Barb. 137. The liability of the owners of the machine or engine turns upon the question of actual negligence in its use, and not upon the question whether it was constructed upon the form generally adopted, and used in the ordinary manner with the usual precautions. Mind& v. Bcvrton, 25 N. Y. 544. This case and the last one preceding it appear to- be the same, except that they are in different court&. In actions to recover damages for injuries sustained by one person from the alleged negligence of another, it must be shown that the injury was the legal and the natural consequence of the defendant's acts. And where the injury sustained was that which resulted from defend-ant's mismanagement of the pMntiff's business, which was the sale of lottery tickets, it was held that the injury was too vague to sustain an action, where the sole ground of complaint was that public con- fidence was lost by reason of such mismauagement. Bixtler v. Kent, 19 Johns. 223. Negligence is not actionable, unless it is theproxi- miafe cause of tlie injury complained of. LanA v. Atlantic Works,. Ill Mass. 136. And in determining what is proximate catise, the ACTIONS FOR TOETS OE WEONGS. 589 Negligence. — What is eucli negligenee as to be actionable. rule is, that the injury must be the natural and probable consequence of the negligence — such a consequence as, under the surrounding circumstances of the case might and ought to have been foreseen by the wrong-doer as likely to flow • from his act. Perm. R. B. Co. V. Kerr, 62 Penn. St. 353; S. C, 1 Am. Eep. 431; Penn. B. B. Co. v. Eope, 80 Penn. St. 3Y3 ; S. C, 21 Am. Eep. 100. And see J)el., etc., B. B. Go. v. Salmon, 10 Vroom (N. J.), 299 ; S. C, 23 Am. Eep. 214. In other words, the injury will not be considered too remote if, accordins: to the usual experience of mankind, the result ought to have been apprehended. Milwaukee, etc., B. B. Co. V. Kellogg, 94 U. S. (4 Otto ) 469 ; Lame v. Atlantic Works, 111 Mass. 136. And it is held that a person injured by the negligence of another may recover for the natural and probable consequences thereof, although the injury, in ihe^precise form in which it resul'ted, was not foreseen. Hill v. Winsor, 118 Mass. 251. The owners of a steamboat which is engaged in the business of tow- ing boats are liable for such injuries as result from gross negligence in managing the steamboat, notwithstanding they agreed to tow a boat " at the risk of the master and owners thereof." Alexam,der v. Greene, 7 Hill, 533; Wells y. Steam Navigation Co., 8 JST. Y. 375. Every presumption is against an intention to contract for immunity for not exercising ordinary diligence in the transaction of any business, and hence the general rule is that contracts will not be so construed, unless expressed in unequivocal terms. Magnin v. Dinsmore, 56 JST. Y. 168 ; Steinweig v. Erie BailwoA/, 43 id. 123 ; S. C, 8 Am. Eep. 673. Accordingly, where, by a contract of shipment, a carrier — railway com- pany — in consideration of a reduced rate, was released from all claims for any damage or injury " from whatsoever cause arising," it was held that the exemption did not include a loss arising from the carrier's negligence ; and that for such a loss it was liable. Mynard v. Syracuse, etc., B. B. Co., 71 N. Y. 180; reversing S. 0., 7 Hxm, 399. ^qq Arctic Fire Ins. Co. v. Austin, 69 N. Y. 470 ; S. C, 25 Am. Eep. 221. A merchant who sends goods to his customer upon his order is answerable for his neglect to pack and secure tbem in the usual man- ner of the trade, where there are no express instructions. Didkey v. Grant, 6 Cow. 310. A person who prepares and sells medicines, and yet is so negligent as to label deadly poisons as harmless remedies, will be answerable for such injuries as may result to an innocent purchaser who uses them as a medicine, Thomas v. Wmehester, 6 N. Y. 397; ante, 423. 590 ACTIONS FOR TOUTS OR WRONGS. Plaintiff's own negligence as a bar to his action. Where an act of negligence is eminentlj' dangerous to the lives of others, the guilty party is liable to any person injured thereby, whether there exist any privity between them or not. Cougfitry v. Globe Woolen Co., 56 N. Y. 124 ; S. C, 15 Am. Rep. 387 ; Burke v. i)e Castro, 11 Hun, 354. Otherwise the negligent party is liable only to the person with whom he contracts. lb.; Loop v. Litchfield, 42 N. Y. 351; S. C, 1 Am. Rep. 543. "Where an employee in a mill was injured by the fall of a privy which was attached thereto in an insecure and dangerous manner, it was held that she was entitled to recover damages from the employer for his negligence in leaving the privy so unsafe. Ryan v. Fowler, 24 N. Y. 410. To entitle a plaintifE to recover, it must appear that the injury occurred by reason of the negligence alleged and testified to on the part of the plaintifE, although it is not necessary that the injury should, in the opinion of the juxy, have occurred in the precise manner alleged. PoUa/rd v. New Haven R. R. Co., 7 Bosw. 437. There can be no recovery, unless the defendant's act of negligence contributed to the injury sustained. Cosgrove v. Wew York Central R. R. Co., 13 Hun, 329 ; Barringer v. New York Central R. R. Co., 18 id. 398. The fact that the defendant has been guilty of negligence followed by an injury does not render him liable, unless the injury was occasioned bj^ that negligence. Harlem v. St. Louis, etc., R. R. Co., 65 Mo. 22. Plaintiff's own negligence as a bar to his action. A plaintiff who sues another for his culpable fault or negligence must himself have been free from fault or misconduct, and must have used ordinary care. For, if the injury has resulted from the negligence of both parties, and, more especially, if it occurred without any wanton or intentional wrong on the part of either party, no action can be maintained. The cases illustrative of this principle are very numerous, and, there- fore, but a few of them can be noticed. An action for damages caused by the defendant's negligence cannot be sustained, if negligence on the part of the plaintiff co-operated with the defendant's misconduct to produce the injury. Tonawanda R. R. V. Hunger, 5 Denio, 255 ; S. C, 4 N. Y. 349 ; Brownell v. Flagler, 5 Hill, 282 ; Glendening v. Sharp, 22 Hun, 78 ; Haley v. Earle, 30 N. Y. 208 ; Arctic Fire Ins. Co. v. Atistin, 69 id. 470 ; S. C, 25 Am. Rep. 221. The rule generally adopted by the courts is, that, whenever there is negligence on the part of the plaintiff, contributing directly, or as a proximate cause, to the occurrence from which the injury arises, such ACTIONS FOE TORTS OR WRONGS. 591 Plaintiff's own negligence as a bar to Lis action. negligence will prevent the plaintiff from recovering, either at law or in equity. Murphy v. Deane, 101 Mass. 455 ; S. C, 3 Am. Rep. 390 ; Tuffy. Warman, 5 0. B. (N. S.) 573 ; Grippen v. Mew York Cent. E. E. Co., 40 N. Y. 34. Any degree of contributory negligence which immediately conduced to the injury is a complete defense. Keese v. New York Gent. E. E. Co., 67 Barb. 205 ; Bunn v. Del., etc., E. E. Co., 6 Hun, 308; Gray v. Second Ave. E. E. Co., 2 Jones & Sp. 519; S. 0. affirmed, 65 N. T. 561. The question on which the right to damages depends in an action to recover for injuries sustained by reason of the defendant's negligence is not which party was most to blame, but has one party suffered dam- ages from the fault of the other, without having contributed thereto by his own fault, or want of ordinary care and prudence. Clark v. 'Kirioan, 4 E. D. Smith, 21. But the contributory negligence which will defeat a recovery must be ihepersonM act of the party injured, or of some one whose fault is imputable to him. The negligence of a mere stranger contributing to the injury furnishes no excuse for the negligence of the defendant, and no reason why he should not respond in damages. Webster v. Hudson Eiver E. E. Co., 38 N. Y. 260; Lackhart v. Lichtenthaler, 46 Penn. St. 151 ; Burrows v. March Gas Co., L. R., 5 Exch. 67. Thus a woman who has accepted an invitation to ride with a person in every way competent and fit to manage ahorse is not chargeable with the negligence of her escort ; and his contributory negligence will not defeat an action brought by her to recover damages for injuries received through the negligence of a railway company. Eobinson v. New York Central <& Hudson Eiver E. E. Co., 66 N. Y. 11 ; S. C, 23 Am. Rep. 1 ; Dyer v. Erie Eailway Co., 71 N. Y. 228. See Cosgrove v. New York Central <& Hudson Eiver E. E. Co., 13 Hun, ^'ii'd ; Perry Y.LoMsmg, 17 id. 34; Metcalf v. Baker, 11 Abb. (N. S.) 431 ; S. C, 2 Jones & Sp. 10 ; affirmed, 52 N. Y. 649 ; 57 id. 662. Negligence on the part of the person injured which in no way con- tributed to the accident, or which was in no proper sense the im- mediate or proximate cause of the accident, will not defeat an action to recover damages for injuries sustained through the negligent acts of the defendant, Ha/wks v. Winans, 10 Jones & Sp. 451 ; S. C, 74 N. Y. 609 ; Wasmer v. Delaware, Lackawana and Western E. E. Co., 80 id. 212 ; Omaha Horse Eailway Co. v. Doolittle, 7 Neb. 481 ; Hoffman v. Union Ferry Co., 47 N. Y. 176 ; S. C, 7 Am. Rep. 435 ; Haley v. Earle, 30 N, Y. 208. A party injured need not be a passive 592 ACTIONS FOE TOETS OE WEONGS. Plaintiflfs own negligence as a bar to his action. recipient of the injury in order to establish a right to recover of the wrong-doer for the injury. (MyofWyaiidotte v. White, 13 Kans. 191. If he sees his property endangered by the negligence of another, it is his right and duty to do what he reasonably and prudently can to save and protect it; and if in so doing he is injured, the person guilty of the negli- gence is liable. Mexter v. Sta/rin, 73 N. Y. 601. See Wasmer v. Dela- ware, LacTcawana and Western R. JR. Co., 80 N. Y. 212. So if a person, actuated by fears of apparent danger, is injured in his endeavors to avoid it, that will not of itself relieve the defendant from liability. Morrison v. N. T. Gent. R. R. Co., 63 N. Y. 643 ; Coulter v. Am. Meroham.ts' TJn. Ex. Co., 56 id. 685 ; Larrahee v. Bewail, 66 Me. 376 ; Wesley City Coal Co. v. Healer, 84 lU. 126. And where one is placed by the negligent acts of another in such a position that he is compelled to choose upon the instant, and in the face of apparently grave and impending peril, between two hazards, and he makes sueh a choice as a person of ordinary prudence placed in the same situation might make, and injury results therefrom, the fact that if he had chosen the other hazard, he would have escaped injury, does not prove contril)- utory negligence. Twomley v. Central Park, etc., R. R. Co., 69 N. Y. 168 ; S. C, 25 Am. Eep. 162 ; Roll v. Nm-th. Cent. R. R. Co., 15 Hun, 496. Thus, the mere fact that a person jumps from a vehicle in which he is traveling, where there is imminent danger of its coming in collision with an approaching train at a crossing, does not bar a recovery against the railway company, although it appears that he made a mistake and would have escaped injury had he remained quiet. Dyer v. Erie Railway Co., 71 1^. Y. 228. Nor will the intoxication of the plaintiff at the time he received the injury constitute contribu- tory negligence, unless its degree was such as to justify the jury in finding that the party was thereby disqualified from the exercise of or- dinary care and prudence. CHagan v. Dillon, 10 Jones & Sp. 456. A turnpike company is not liable for the damages sustained by the plaintiff in jumping from a wagon, in an emergency created by the acts of third persons. Wilson v. Susquehanna Turnpike Co., 2L Earb. 68. The cases in which the general principles above given have been applied are innumerable, and a few only can be given. The defendant negligently left maple syrup in his uninelosed shed, and the plaintiff's cow, while running at large, drank it and died, and it was held that the defendant was not liable. Bush v. JBrainard, 1 Cow. 78. And so the owner of a cow who suffers her to go at large on the public street of a city, or a railroad track, at a time when cars are passing, with no one to take charge of her, is guilty of negligence ; ACTIONS FOE TOETS OR WEONGS. 593 PlaintiffB own negligence as a bar to his action. and in the absence of gross negligence on the part of the railroad, can- not recover for injuries to tlie cow. Bowmom r.Troy and Boston B. B., 37 Barb. 516. So, where a horse of the plaintiff escaped from his sta- ble at night, and fell into a cut in the public highway, through which the railroad track of the defendant passed, it was held that it was the duty of the plaintiff so to secure his horse that he could not stray into the public streets, and that the plaintiff must suffer the consequences of his escaping. Mentges v. N. Y. mid, Ea/rlem B. B., 1 Hilt. 425. The plaintiff permitted his cow to go in charge of a boy into an open lot adjoining a railroad track and near a highway crossing ; and at the time, the railroad fences were temporarily down for the purpose of enabling the railroad company to make improvements. The boy, with- out the permission or knowledge of the plaintiff, left the cow for a short time, and while he was absent she strayed on the railroad track and was killed by a passing train ; and it was held that the railroad fences and cattle-guards being out of repair, the company was liable for the loss of the cow, and the negligence of the plaintiff would be no de- fense. Brady v. Bensselaer, etc. , B. B. Co., 3 Sup. Ct. (T. & C.) 637 ; S. 0., 1 Hun, 378. A person who sustains an injury through the negligence of another may recover therefor if he could not have avoided the collision by the- use of ordinary care. If the plaintiff uses ordinary care, he cannot be deemed to have contributed to the result by his negligence. Center v. Finney, 17 Barb. 94 ; EaTcin v. Brown, 1 E. D. Smith, 36 ; Omaha Horse Baihoay Co. v. DooUttU, 7 Neb. 481 ; Fero v. Buffalo da State Line B. B. Co., 22 IST. T. 209 ; Illinois, etc., B. B. Co. v. Hethering- ton, 83 111. 510; Baxter v. Second Avenue B. B. Co., 3 Eob. 510; S. C, 30 How. 219. On the other hand if the plaintiff by his own negli- gence exposes himself to injury from a passing vehicle, it is of no con- sequence that the driver of the vehicle was clearly and grossly negligent, and he will have no remedy. Mangam v. BrooMyn City B. B. Co., 3(i Barb. 230. But if there is time for the plaintiff to cross the road before an approaching vehicle could arrive, he is not bound, in order to avoid the charge of negligence, to wait until the vehicle has passed, be- cause there might be danger of his slipping or falling. Baxter v. Second Avenue B. B. Co., 3 Eob. 510 ; S. C, 80 How. 219. See Hoffman v. New Yorlc Central & Hudson Biver B. B. Co., 13 Hun, 589 ; S. C. affirmed, 75 N. Y. 605. And it is no defense to an action to recover damages for an injury received from being run over by the defendant's horse upon the highway, that the plaintiff was using the ■highway in a manner .net justified by law, provided no negligence or 75 594 ACTIONS FOE TOETS OE WEONGS. Liability of one person for the acts of another. want of ordinary care on his part contributed to produce the injury. Bigelow v. Reed, 51 Me. 325. And see Davis v. Mann, 10 Mees. & W. 545. A child of tender years, who is not sui juris, who is negligently suffered by his parents to run at large, and thereby is placed in the way of being harmed, cannot recover for injuries received through the neg- ligence of others. The want of care and omission of duty of parents are regarded as contributory to the injury, and this neglect is imputed to the child and there is no redress for him. This want of care on the part of the parent or guardian furnishes the same answer to an action by the child as would the omission of proper care on the part of the plaintiff, in an action by an adult. McLain v. Van Zandt, 7 Jones & Sp. 347 ; Wright v. Maiden, etc., R. R. Co., 4 Allen, 283 ; Lafayette, etc., R. R. Go. V. Huffman, 28 Ind. 287 ; Wait v. North-eastern Rail- way Co., Ell., Bl. & El. 719. If parents knowingly allow a child of less than four years of age to go at large in a public street, without a protector, it is such negligence in his parents or guardians, as will, if unexplained, prevent a recovery by the infant for a personal injury. Mangam v. BrooTclyn City R. R., 36 Barb. 230 ; Hartfield v. Roper, 21 Wend. 615 ; Lynch v. Nurdin, 1 Ad. & Ell. (N. S.) 29. But in order to defeat an action on the ground of the negligence of the parents, there must be an omission of such care as persons of ordinary prudence exer- cise and deem adequate in the care of children. Schmidt v. Milwaukee, etc., R. R. Co., 23 Wis. 186 ; Miarisville, etc., R. R. Co. v. Wolf, 59 Ind. 89 ; Chicago, etc., R. R. Co. v. Becker, 84 111. 483 ; Chicago V. Hesing, 83 id. 204 ; C Flaherty v. Union Railway Co., 45 Mo. 70. And negUgence on the part of the parents is no defense where it ap- pears that the child has not committed or omitted any act which would constitute contributory negligence in a person of years of discretion. Negligence can only be imputed to the child through the parents, but when the child has done no neghgent act, the conduct of the parents is imniaterial. McOarry v. Loomis, 63 K T. (18 Sick.) 104; S. C, 20 Am. Eep. 510. And BQQKeffe v. Milwaukee, etc., R. R. Co., 21 Minn. 207; S. C, 18 Am. Eep. 393; Reynolds v. N. T. Cent. R. R. Co., 58 N. T. 248 ; Prendegast v. New York, etc., R. R. Co., id. 652. And the contributory negligence of an infant of tender years will not excuse gross want of care on the part of the defendant's servants. Kenyon v. New York, etc., R. R. Co., 5 Hun, 479 ; Evansville, etc., R. R. Co. V. Wolf, 59 Ind. 89. Liability of one person for the acts of another. The law fre- quently holds individuals liable for acts of negligence, although such ACTIONS FOR TOETS OE WEONGS. 595 Liability o£ one person for the acts of anotlier. acts were not committed by them in person. And the negligence of a clerk, servant, or agent, is frequently held to be sufficient to render the employer or principal liable, whether such principal be a natural person or corporation. The liability to make compensation for an injury arising from the negligent act of another attaches only on the person doing this act, or on the person employing him. The liability of any one other than the party actually guilty of any wrongful act proceeds on the maxim that he who does an act through the medium of another is, in law, consid- ered as doing it himself. Vol. I, 435. The party employing another has the selection of the agent employed ; and it is but reasonable and just that he who has made choice of an unskillful or careless person to execute his orders should be responsible for any injtiry resulting from his want of skill or want of care. The rule recognized in all the recent cases is that for the acts of the servant, within the -general scope of his employment, while engaged in his master's business, and done with a view to the furtherance of that business and the master's interest, the master will be responsible, whether the act be done negligently, wantonly, or even willfully. Mott v. Gon- sumers' Ice Co., 73 N". T. 543. The test of the master's liability is whether the act was done in the prosecution of the master's business, and not whether it was done in accordance with the instructions of the master to the servant. If it was, the master is liable although the servant deviated from the instructions of his master as to the manner of doing his business. Cosgrove v. Ogden, 49 N. Y. 255 ; S. C, 10 Am. Rep. 361. But neither the principle of the rule, nor the rule itself, can apply to a case where the party sought to be charged does not stand in the char- acter of employer to the person by whose negligent act the injury has been occasioned. City of Buffalo v. HoUoway, 7 N. Y. 493. And where A. bought a box of B., which was in the upper part of the store of the latter, and A. sent a porter for it, who, in using B.'s fall, by his consent, for letting the box down to the sidewalk, negligently let the box drop into the street, and thus injured the plaintifif, it was held that B. was not liable for the injury. Stevens v. Armstrong, 6 N. Y. 435. So the owner of land, who has contracted with per- sons of competent skill to build a house thereon, is not liable for the negligence of the contractor's servants in the course of the work. Oil- lert V. Beach, 6 Bosw. 445; O'Rourke v. Hart, 7 id. 511. But one who directs his servant to remove the snow and ice from the roof of his house is responsible for an injury received by a passenger in the street from such snow and ice, whether the negligence was that 596 ACTIONS FOE TOETS OE WEONGS. Liability of one person for tlie acts of anotfaet. of the servant, or that of a stranger whom he employed, or who vol- unteered to assist him. Altb^rf v. Wolfe, 22 N. Y. 355 ; S. C, 2 Hilt. 344. Any one who casts ice, snow, or other missiles from the roof of a house upon the sidewalks of a city street, without stationing some one below to warn passers-by, is guilty of gross negligence. And if a per- son passing underneath is injured by the act, it will not be presumed that such person was negligent so as to defeat a recovery of damages for the injuries. lb. If the owner of a building employs a servant to remove the roof from his house and directs him to throw the materials upon his lot, where no one could be endangered, and the servant, disregarding this direction, should carelessly throw them into the street causing an injury to a passer-by, the master would be responsible therefor, although done in violation of his instructions. But should the servant, for some pur- pose of his own, intentionally throw material upon a passenger, the master would not be responsible for the injury, because it would not bo an act done in his business, but a departure therefrom by the servant to affect some purpose of his own. G-eovee, J., in Gosgrove v. Ogden, 49 N. Y. 255 ; S. C, 10 Am. Eep. 361. See Ochsetibein v. Shapley, 85 IST. Y. 214, 220. "Where the roof of a building is so constructed that the snow accumu- lating thereon is liable to slide off and fall upon the sidewalk, the owner of the building will be liable to any foot passenger upon the street who is injured by snow so falling from the roof, although the building is at the time in the occupation of a tenant who is bound to make all needful repairs. Walsh v. Mead, 8 Hun, 387. A gas company will be liable for damages resulting from an ex- plosion caused by the negligent act of an agent sent to stop a leak and make repairs in the pipes, in the house of a consumer. Lannen v. Albany Gas-light Co., 46 Barb. 264 ; S. C. affirmed, 44 N. Y. 459. And see Schemerhorn v. Metropolitan Gas-light Qo., 5 Daly, 144; Lanigan v. New York Gas-light Co., 71 N. Y. 29. And the occu- pants of an upper tenement will be liable for damages to the occupants of the lower tenement caused by water flowing from a faucet accident- ally left open by the servants of the former. Si-numton v. Loring «8 Me. 164 ; S. C, 28 Am. Eep. 29. The act of a driver or brakeman of a street car in assisting passen- gers to get on board of the cars is an act done in the course of his em- ployment, and the principal is liable for the negh'gence of such agent in the performance of that dtity. Drew v. Sixth Avenue R. R. 26 N. Y. 49. See Peck v. N. Y. Ctnt. & E. R. R. R. Co., 70 ' id. ACTIONS FOE TORTS OR WRONGS. 597 Liability of one person for the acts of another. 687. It is the duty of the conductor of a street car to give passengers a reasonably safe opportunity to alight. He mnst stop the car a rear sonable time for this purpose ; and if he starts it before the passenger has stepped down, or had reasonable time for that purpose, it is negli- gence for which the railway company will be liable if injury results to the passenger. Mulhado v. BrooMyn City H. R. Go., 30 N. Y. 37o ; Poulin v. Broadway, etc., B. R. Co., 2 Jones & Sp. 296 ; S. C. affirmed, 61 N. T. 621 ; Keating v. N. Y. Cent., etc., R. R. Co., 49 ISr. Y. 673 ; Colt v. Sixth Avenue R. R. Co., id. 671. So, if the driver of a railway car starts it with a sudden jerk before a passenger is safely on board, the company will be liable for an injury resulting to the passenger. Eppendor v. Brooklyn, etc., R. R. Co., 69 IS. Y. 195. And, although the passenger is a boy about eight years of age, it will not be adjudged as a matter of law, that it was negligence in the parent to send him on the oars without a' protector. Drew v. Siseth Avenue R. R. Co., 26 N. Y. 49. The proprietor of a stage or an omnibus line is liable for an injury which results either from-tlie negligence of a driver who is in his em- ploy, or from the defective construction of a stage or omnibus used on his line. Harpell v. Curtis, 1 E, D. Smith, 78. See Sawyer v. Saner, 10 Kans. 466 ; Sawyer v. Dulany, 30 Texas, 479 ; Keith v. PinTcham, 43 Me. 501. So, where a servant negligently omits to tie or restrain his employer's horse, and a third person carelessly frightens him, the employer, owner or master is liable to one who, without any fault on his part, is injured by the horse in running away. MoCahill v. Kipp, 2 E. D. Smith, 413. In such a case it is not material what frightened the horse, if he was not properly taken care of so as to prevent his running. lb. Nor does it affect the defendant's liability, whether the person who frightened the horse was responsible or not. lb. But there is no absolute rule of law that requires one who has a horse in the street to tie him, or hold him by the reins. And while it would doubtless be careless to leave a horse in a street, wholly unattended, without tying him to something, it seems that it is a question of fact, to be determined by ,a jury from all the circumstances, whether leaving a horse standing untied, in the immediate presence of the driver, and within such distance from him that the driver might reasonably expect to control the animal in an emergency, is a negligent act or not. See Wasmer v. Delaware, Lack- awanna and Western R. R. Co., 80 N. Y. 212. The mere fact that the defendant's horse ran away and injured the plaintiff's horse proves no wrongful act on the part of the defendant, and will not sustain an 598 ACTIONS FOR TOETS OR WRONGS. Liability of one person for the acts of another. action for damages. Quintan v. Sixth Avenue M. S. Co., 4 Daly, 487 ; Qotmald v. BernJieimer, 6 id. 212. Under the provisions of the statutes of this State requiring railroad companies to erect and maintain fences on the sides of their roads, if a fence is thrown down, or if it becomes defective from any cause, it then becomes the duty of the railroad company to restore if within a reason- able time. And although a fence is thrown down, and an opening left therein, by a trespasser, yet if it is suffered to remain in that condition for an unreasonable length of time, a jury has a right to find that this is negligence in the railroad company. Munch v. N. Y. Central M. R. Go., 29 Barb. 647. And when a railroad company is in default for not repairing a gap in such a fence and a horse passes through the gap, on the railroad track, and is there killed, the mere negligence of the owner in permitting, the horse to ran at large in the highway, or to trespass upon a neighbor's premises, will not constitute a defense to an action against the railroad company to recover the value of the horse. II). ; Corwin v. iV". T. c& Erie R. R., 13 N. Y. 42. See Spinner v. JV. T. Central c& R. R. R. R. Co., 67 id. 153 ; Crawford v. W. Y. Central & H. R. R. R. Co., 18 Hun, 103 ; Purdy v. Wew YorTc & Nexo Haven R. R. Co., 61 N. Y. 353 ; ante, 506. Where a servant, employed to work on a farm by the month, directs his son, an infant under his control, to do an act upon the farm, which is within the scope of the servant's employment, such act will be considered the act of the servant, and if another person sustains damage by the negligent manner in which the act was performed, the master is liable. Simons v. Monier, 29 Barb. 419. And see Althorf v. Wolfe, ante, 596. So, where a party, having obtained permission from a municipal cor- poration to lay gas pipes in a street, makes a contract with another per- son to do the work, he is liable for the negligence of the servants of the latter, in consequence of which an injury is sustained by an indi- vidual. McCamus v. Citizens' Gas-light Co., 40 Barb. 380. It is the duty of such party to restore the street to a condition which vsdll allow passengers to cross over it in safety ; and he cannot avoid the consequences of a failure to do so, by showing that he con- tracted with others to perform his duty for him. lb. See Clifford v. Dam, 81 N. Y. 52. A railroad corporation cannot relieve itself from liability for the negligent acts of those operating it by leasing its load to an individual without the consent of the legislature. If .It does lease its road without such consent, it remains responsible to the public for the manner of operating the road, and the lessee, as to the public, will ACTIONS FOE TOETS OE WEONGS. 599 Liability of one person for the acts of anotlier. be regarded as the agent of the corporation. Abhott v. Johnstown, OloversviUe and Kingsboro Horse B. R. Co., 80 JS". Y. 27. See Railroad Co. v. Brown, 17 Wall. 445-450 ; Nelson v. Vermont <& Canada R. R. Co., 26 Vt. 717 ; Macon c& Augusta R. R. Co. v. Mayes, 49 Ga. 355 ; S. 0., 15 Am. Eep. 678 ; Mahoney v. Atlantic cfe 8t. Lawrence R. R. Co., 63 Me. 68. Nor can the lessee of a railroad corporation escape liability for injuries resulting from his negligence in not keeping and maintaining the road in a safe condition merely upon the ground that he is the lessee. Wasmer v. Delaware, Lackawanna <& Western R. R. Co., SO N. Y. 212. Where a railroad ticket office is not kept open as is required by law, no extra fare can be charged to a person who was ready and willing to get a ticket, but could not do so for the reason that the office was closed. JVellis v. N. Y. Central R. R. Co., 30 N. Y. 505 ; Porter v. N. Y. Central R. R. Co., 34 Barb. 353. And if a conductor of a train of cars demands and receives extra fare in such a case from such pas- senger, he may recover the penalty given by law for the extortion. lb. The act of the conductor in such a case is the act of the company. lb. But the rules above stated apply only where the statute gives to the company power to charge an additional sum when no ticket is purchased, and not where full fare is charged when payment is made on the cars, and an abatement • made when a ticket is purchased at the ticket office. Bordeaux v. Erie Railway Co., 8 Hun, 579 ; State v. Ooold, 53 Me. 279. But notwithstanding the law holds a principal liable for the acts of his agent, and a master for the acts of his servant, there are still cases in which a person may employ another to do work, and the employer not be hable for his negligence. The general rule is that where the work is done under a contract, and an injury occurs to an individual from the act or negligence of the servants of the contractors, and not those of the owner, the owner is not responsible. Vanderpool v. Husson, 28 Barb. 196 ; Blake v. Ferris, 5 N. Y. 48 ; Pack v. Mayor of New York, Sid. 222; Kelly y . Mayor of New York, 11 id. 432; King V. N. Y. Central <& H. R. R. R. Co., 66 id. 181 ; S. C, 23 Am. Eep. 37; Town of Pierrepont v. Loveless, 72 E". Y. 211. There are some exceptions to this general rule, as where the work or erection is itself a nuisance, or where the injury was itself a necessary result of the contract. Stevens v. Armst/rong, 6 N. Y. 436 ; City of Buffalo V. Holloway, 7 id. 493 ; Mayor of New York v. Bailey, 2 Denio, 442 ; Congreve v. Morgan, 5 Duer, 495 ; King v. N. Y. C (& R. B. R. B. Co., m N. Y. ISl, 185; S. C, 23 Am. Eep. 37. 600 ACTIONS FOR TORTS OE WRONGS. Where acts of negligence are not actionable. The rule of respondeat superior is based upon the right which the employer has to select his servants, to discharge them if not competent, skillful or well behaved, and to direct and control them while in his employ. The rule has no application to a case in which this power doesnotexist. Kelly ^. Mayor of New Torh,il'^. Y. 432; Maxamilian V. Mayor, 62 id. 160 ; S. C, iiO Am. Rep. 468 ; Ham v. Mayor, YON. Y. 459. The plaintiff and the defendant were owners of adjoining lots, and the latter built a wall upon his lot, along the boundary line between them. The wall was built by D. and C. under a written contract. The defendant furnished nothing but the materials for the wall, but he did not employ any workmen, nor did he exercise any control over them, and it was held that the defendant was not liable to the plaintiff for the damages caused by the blowing down of the wall before it was com- pleted, because the relation of master and servant, or that of principal and agent, did not exist between the defendant and those by whom the wall was constructed. Benedict v. Maortin, 36 Barb. 288-. So, where an owner of land was about to erect a building on his lot, and he contracted with a person to furnish and set the marble for the front thereof, according to certain specifications, and for a definite sum which was agreed upon, and such owner of the land neither interfered: with the work, nor reserved any right of interference or direction, it was held that the owner was not liable to a third person for any injury which he might have sustained in consequence of the negligence of the contractor's employees who were engaged in setting the marble, for in STich a case those employees are not the owner's servants. Potter v. Seymour, 4 Bosw. 140; Gourdier v. Cormach, 2 E. I>. Smith, 254. A municipal corporation, while within the operation of the general rule that the superior or employer must answer civilly for the negli- gence or want of skill of an agent or servant in the course of his em- ployment by which another is injured, is not liable, if the act done is without the scope of the corporate powers, whether its officers directed its performance, or it was done without any express direction or command. Smith V. City of Boohester, 76 N. Y. 506. Where acts of negligence are not actionable. There are some in- stances in which no action can be maintained against a principal for negligent acts of his servants. And where a principal has several persons in his employment, and one of them is injured by the negli- gence of another, no action lies against the principal. The whole law upon this subject cannot be more concisely stated than to give the language of the court, by Allen, J., in Wright v. New TorTi Central ACTIONS FOR TORTS OR WRONGS. 601 Where acts of negligence are not actionable. E. E. Co., 25 N. T. 564 to 567, adding thereto, for convenience of reference, some of the more recent cases sustaining in whole or in part the language quoted. " Certain principles touching the liability of the master to the servant for injuries sustained by the latter in the course of his employment have, by the decisions in this State and several sister States, as well as in England, become so well settled that they, need only to be stated. They cannot be disturbed, neither can their authority be disregarded. " 1. A master is not responsible to those in his employ for injuries resulting from the negligence, carelessness or misconduct of a fellow servant engaged in the same general business." Malone v. Hathaway, 64 N. T. 5 ; S. C, 21 Am. Rep. 573 ; Henry v. Staten Island Ey. Co., 81 N. Y. 373 ; Hofnagle v. N. 7. Cent. & H. E. R. E. Co., 55 id. 608 ; Sullivam, v. Toledo, etc., Ey. Co., 58 Ind. 26 ; Valtez v. Ohio, etc., Ey. Co., 85 111. 500 ; Lovell v. Howell, 1 C. P. Div. 161 ; S. 0., 16 Eng. Rep. 501 ; Chicago, etc., E. E. Co. v. Doyle, 18 Kans. 58 'y Crispin v. BalUtt, 81 N. Y. 516. " 2. The rule exempting the master is the same, although the grades of the servants or employees are difEerent, and the person injured is inferior in rank, and subject to the directions and general control of him by whose act the injury is caused." Malone v. Hathaway, 64 N. Y. 5 ; S. C, 21 Am. Rep. 673 ; ^¥arner v. Erie Ey. Co., 39 N. Y. 468 ; Feltham v. England, L. R., 2 Q. B. 33 ; Crispin v. Bahlitt, 81 N. Y. 516 ; Albro v. Agawam Canal Co., 6 Gush, 75 ; Conway v. Belfast Ey. Co., 11 Irish C. L. 353. " 3. Neither is it necessary, in order to bring a case within the gen- eral rule of exemption, that the servants — the one that suffers and the one that causes the injury — should be at the time engaged in the same operation or particular work. It is enough that they are in the; employment of the same master, engaged in the same common enter- prise, both employed to perform duties and services tending to ac- complish the same general purposes, as in maintaining and operating a railroad, operating a factory, working a ujine, or erecting a building. The question is whether they are under the same general control," Eoss V. JSr. T. Cent. c& H. E. E. E. Co., 5 Hun, 488. See Murphy V. Boston and Albany E. E. Co., 88 N. Y. 146, 152. " 4. The master is liable to his servant for any injury happening to him from the misconduct or personal negligence of the master ; and this negligence may consist in the employment of unlit and incompetent servants and agents ; or in the furnishing for the work to be done, or for the use of the servants, machinery or other implements and facilities 76 602 ACTIONS FOE TORTS OR WRONGS. Where acts of negligence are not actionable. impropei' and unsafe for the purposes to whicli they are to be applied. The employer does not undertake with each or any of his employees for the skill and competency of the other employees engaged in and about the same service, or for the suflSciency and safety of the materials and implements furnished for the work, or for the convenience or com- fort of the laborer ; since neglect and want of due care in the selection and employment of the agent or servant through whose want or skill or competency an injury is caused to a fellow servant must be shown in order to charge the master ; and if the injury arises from a defect or insufficiency in the machinery or implements furnished to the servant by th'e master, knowledge of the defect or insufficiency must be brought home to the master, or proof given that he was ignorant of the same, through his own negligence and want of proper care ; in other words, it must be shown that he either knew, or ought to have known, the de- fects which caused the injury. Personal negligence is the gist of the action. It is not enough that the foreman and general superintendent of the work is guilty of negligence, causing injury to the subordinates." DeForesi v. Jewett, 19 Hun, 509 ; Leonard v. Collins, 70 N. Y. 90 ; Cons V. Delaware, Laohawa/nna <& Western It. R. Co., 81 id. 206 ; Baulec v. New TarTc cfe Harlem E. E. Co., 59 id. 356 ; S. C, 17 Am. Rep. 325 ; Chapman v. Erie Ey. Co., 55 N. Y. 579 ; Raskvn v. N. Y. Gent. & H. E. E. E. Co., 65 Barb. 129 ; S. C. affirmed, 56 N. Y. 608 ; Spelmam, v. Fisher Iron Co., 56 Barb. 151 ; Sizer v. Syracuse, etc., E. E. Co., 7 Lans. 67 ; Warner v. Frie Ey. Co., 39 N. Y. 468. " 5. If the servant sustaining an injury through the unskillfulness or insufficiency in numbers or otherwise, of his fellow laborers, or defects in the machinery or conveniences furnished by his employer, has the same knowledge or means of knowledge of the unskillfulness and de- ficiencies referred to as his employer, he cannot sustain an action for the injury, but will be held to have voluntarily assumed all the risks of the employment, incurred, as they were, by the want of skill and the in- competency of those employed with him, or the defective machinery used in the work." Cruty v. Erie Ey. Co., 3 Sup. Ct. (T. & C.) 244. See DeGraff v. N. Y. Central & H. E. E. E. Co., 76 N. Y. 125; Eawley v. Northern Central Ey. Co., 82 id. 370 ; BeForest v. Jewett, 88 id. 264. " 6. It is not sufficient to charge the master for injuries to his servant, that others of his employees were unskillful or incompetent, or the machinery, etc., unsafe and unfit for the purpose, unless the injury complained of resulted from those causes. If it was occasioned, not- withstanding such defects, by the negligence of a fellow servant, the ACTIONS FOR TOETS OE WEONGS. 603 Where acta of negligence are not actionable. master is not responsible." See Henry v. 8taUn Island H. B. Co., 81 N. Y. 373. Stringham v. Stewa/rt, 27 Hun, 562 ; Murphy v. Boston, and Albany li. E. Co., 88 N. Y. 146. The doctrine of the principal case cited ( Wright v. N. Y. Central E. E. Co.), while repeatedly affirmed by the courts, needs explanation to adapt it to all cases in which the servant has been injured through negligence while in the discharge of his duties to his employer. Any act which the master, as such, is bound to perform :^or the safety and protection of his employees, cannot be delegated so as to exonerate the master from liability to a servant who is injured by the omission to perform the act or duty, or by its negligent performance, whether the non-feasance or mis-feasance is that of a superior officer, agent or servant, or of a subordinate or inferior agent or servant to whom the doing of the act or the performance of the duty has been committed. In either case, in respect to such act or duty, the servant who undertakes or omits to perform it, is the representative of the master, and not a mere co-servant with the one who sustains the injury. Fuller V. Jewett, 80 N. Y. 46. Where the servant by whose acts of negligence or want of skill other servants of the common master have received injury is the " alter ego " of the master, to whom the employer has left every thing, then the middle-man's negligence is the negligence of the employer for which the latter is liable. The servant in such case represents the master, and is charged with the master's duty. Malone v. Hathaway, 64 N". Y. 5 ; S. 0., 21 Am. Eep. 573 ; Corcoran v. Hdlhrook, 59 E". Y. 517; S. C, 17 Am. Eep. 369; Murphy v. Smith, 19 C. B. (N. S.) 361 ; Eagan v. Tucker, 18 Hun, 347 ; Fort v. Whipple, 11 id. 586. When the middle-man or superior servant employs and discharges the subalterns, and the principal withdraws from the management of the business, or the business is of such a nature that it is necessarily com- mitted to agents, as in the case of corporations, the principal is liable for the neglects and omissions of duty of the one charged with the selection of other servants in employing and selecting such servants and in the general conduct of the business committed to his care. Malone v. Hathaway, 64 N. Y. 5 ; S. C, 21 Am. Eep. 573 ; Lanmg V. N. T. Central E.E. 6'o., 49 IST. Y. 521 ; FiTkeY. Boston & Albany E. E. Co., 58 id. 549 ; Frazier v. Pennsylvania E. E. Co., 38 Penn. St. 104 ; Coombs v. New Bedford Cordage Co., 102 Mass. 572 ; Ford V. Fitchburg E. E. Co., 110 id. 240 ; Booth v. Boston dh Albany E. E. Co., 73 N. Y. 38 If a master furnishes defective machinery for use in his business, he 604 ACTIONS FOR TORTS OR WRONGS. Where acts of negligence are not actionable will not be excused by the negligence of a servant in using it from liability for an injury to a co-servant whicli could not have happened had suitable machinery been furnished. Cone v. D., L. c§ W. R. R. Co., 81 N. Y. 206. See Kain v. Smith, 80 id. 458. So, if a railroad company furnish an insufficient number of brake- men upon a train, and injury to a servant results therefrom, the com- pany is liable although the immediate negligence in starting the train without sufficient brakemen was that of a co-servant. Booth v. Boston (& Albany R. R. Co., 73 IST. Y. 38. It would be idle to attempt to specify the rank or position of the employee, wlio would be deemed a " fellow servant " under the rules above given. The liability of the master does not depend upon the grade or rank of the employee whose negligence causes the injury, but rather upon the character of the act in the performance of which the injury arises. A superintendent of a factory, although having power to employ men, or represent the master in other respects, is in the management of the machinery a fellow servant of the other operatives. Albro V. Agawam Comal Co., 6 Gush. 75 ; Conway v. Belfast, etc., Ry. Co., 11 Irish 0. L. 353 ; Crispin v. Babbitt, 81 IST. Y. 516. On the same principle, however low the grade or rank of the employee, the master is liable for injuries caused by him to another servant, if they arise from some omission of duty of the master which he has con- fided to such inferior employee. If the act of such employee is one per- taining to the duty the master owes to his servants, he is responsible to them for the manner of its performance. But if the act is one which pertains only to the duty of an operative, the employee performing it is a mere servant, and the master, although liable to strangers, is not liable to a fellow servant for its proper performance. lb. An individual who conveys land to a railroad company for the pur- pose of building a railroad track makes the grant subject to all the con- sequences which naturally and necessarily attend such a use of the land. Rood V. A^. Y. and Erie R. R., 18 Barb. 81. And, if the railroad company exercise ordinary care and diligence in the manner of using the road, it will not be liable to the grantor for such injuries as he may sustain by reason of fires which originate from the use of engines upon the road. lb. By making a grant of land for the purposes of a road, he is bound by the legal rule that every grant is so construed that when a thing is granted for a particular purpose, all the means to attain the result, and all the fruits and effects of it are also granted. lb. An authority to use a steam engine for the purpose of propelling ears upon railroad is an authority to emit sparks from the engine ; and if the ACTIONS FOR TOETS OR WRONGS. 605 Where acts of negligence are not actionable. most approved means which scieace and skill have invented are applied to prevent sparks from causing injury the railroad company is not lia- ble for damages occasioned by fire communicated in that manner. lb. See GolUm v. JY. Y. Cent. c& H. R. R. R. Co., 5 Hun, 503 ; B. 0. affirmed, 71 N. Y. 609 ; McCaig v. Erie Ry. Co., 8 Hun, 599. The rule is the same in a case where the title of the railroad company is acquired by an appraisal. Such appraisal and payment of the sum awarded give as complete a title to the company, and its right to use it is as extensive as it is when derived by a conveyance from the owner, and the presumption that all such risks are included in the appraisement is equally strong. Matter of Utica, etc., R. R. Co., 56 Barb. 456, 464; Matter of JST. T. Cent., etc., R. R. Co., 15 Hun, 63 ; Matter of Rrospeot Rark, etc., R. R. Co., 13 id. 345. See Vaughan v. Taff Vale R. R., 5 Hurlst. & Norm. 679. So, where a landlord having at least an implied license to go into a chamber of the demised tenement with a lighted candle, for the pur- pose of looking after or of getting property whicli he is permitted to keep there, thus enters the chamber, and soon after, the house takes fire and is consumed with its contents, no action will lie by the tenant against the landlord to recover the value of the goods destroyed, unless there is proof of negligence or carelessness on the part of the landlord which caused the fire. Lansing v. Stone, 37 Barb. 15. There can be no presumption in such a case that the landlord did not exercise ordinary care, and the presumption, without proof to the con- trary, is that he did use ordinary care. lb. The Enghsh statute of 6 Anne, chap. 3, as altered and re-enacted by 14 Geo. Ill, which provides that no action, suit or process shall be had against any person whose house, chamber, stable, barn or other building, or on whose estate any fire shall accidentally begin, nor shall any recompense be made by any such person for any damage done thereby, is a part of the common law of New York, having been introduced into the colony by the col- onists, and not having since expired, or been repealed or altered. lb. But such a statute has no application to those cases in which the fire originates or is produced by negligence, and in that case an action lies by the common law against the party by whose negligence, or that of his servants, a fire arises on his premises and damages the property of another. Filliter v. Phippard, 11 Ad. & Ell. (N. S.) 347. So the statute does not apply where the fire is lighted intentionally, and mis- chief or injury happens to result. lb. If, while a street is being graded, an embankment is thrown up for that purpose, which leaves sufficient space, though slightly inconvenient, 606 ACTIONS FOR TORTS OR WRONGS. Negligence in relation to the law of the road. for travelers to pass along the usual road, and the embankment is not made for a path, a traveler who uses it for that purpose is guilty of negligence, and cannot recover damages for any injury which he incurs by reason of the giving way of the embankment beneath him. Carolus v. Mayor, etc., of New York, 6 Bosw. 15. "Where a note is placed in the hands of an attorney for collection, he must use due diligence for that purpose. Buckinghmn v. Payne, 36 Barb. 81. But before he can be charged with the amount of the note by reason of a loss of its amount, it mnst be established, as a mat- ter of fact, that the loss of the sum due upon it was owing to his neg- ligence, or consequent upon it. lb. In an action against an attorney for negligence, the burden is generally upon the plaintiff to prove the act negligent, or at least to state and prove circumstances from which negligence is implied by necessary legal inference. Purves v. Lan- dell, 12 CI. & Fin. 91. If an attorney employs another person to prosecute a claim placed in his hands for collection, he is liable to his client for the negligence of the person so employed by him, and the fact that such person is himself a competent lawyer does not relieve the attorney employing him from liability to his client on account of such negligence. WalTcer v. Stevens, 79 111. 193. See WicJcersham v. Lee, No. 1, 83 Penn. St. 416. A director of a corporation who merely contracts to have work done for the company cannot be held personally responsible for the negligent acts of the person so employed. The work is that of the corporation, which is alone responsible instead of the director. O'Rourhe v. Hart, 7 Bosw. 511. A party may always renounce a benefit which the law gives him, even when the right is created by statute. And where lands adjoined a railroad track in such a manner that the corporation would have been required to maintain cattle-guards, etc., and the owner of the lands contracted with the corporation to build such guards, which work was so carelessly and negligently done that the cattle of such owner after- ward got upon the track and were killed, it was held that the cor- poration was not liable. Tomhs v. Rochester and Syracuse B. E., 18 Barb. 583. And see Marsh v. N. T. and Erie B. B., 14 id 364. Negligence in relation to the law of the road. There are several sections of the statute which fix and regulate the law relating to the manner of traveling public roads. A single section, however, is all that need be given here : " Whenever any persons traveling with any carriages shall meet on ACTIONS FOR TOETS OR WRONGS. 607 Negligence in relation to the law of the road. any turnpike road or public highway in this State, the persons so meet- ing shall seasona'bly turn their carriages to the right of the center of the road so as to permit such carriages to pass without interference or interruption, under the penalty of $5 for every neglect or offense, to be recovered by the party injured." 2 R. S. 965, § 1, 5th ed. The language employed by the legislature is explicit, and there can be no difficulty in its application. The statute requires carriages to keep to the right of the center of the worked part of the road, and that it may be more difficult for one party to turn out than the other does not affect the rule. It is not the center of the smooth or most traveled part of the road, but the center of the worked part, that is the dividing line, although the whole of the smooth or traveled part may be upon one side of that center, unless the situation of the road is such that it is impracticable or extremely difficult for the party to turn out. Earing v. Lansingh, 7 Wend. 185. In case of a collision it will not be any defense that the defendant liad no design to offend, that he attempted to prevent the collision, that the road on his side was rough and rutty, and that it was more difficult for him than for the other party to turn out, for unless the obstacles to turning out are insuperable or extremely difficult, he is without legal excuse. lb. N or will the case be affected by the circumstance that the plaintiff was driving fast, while the defendant was driving slow, since any party may lawfully drive fast or slow to suit his convenience, if he keeps upon his own side of the road, and uses ordinary care in his manner of driving. lb. The rule that the center of the worked part of the road is the center of the highway within the meaning of the statute has no application in the winter, when the ground is covered with snow, and when it is diffi- cult, if not impossible, to ascertain the center of the worked part of the road. And, therefore, in winter, the center of the road means the cen- ter of the heaten or traveled track, without any reference to the worked part. Smith v. Dygert, 12 Barb. 613. Guided by this line, the rights of travelers are certain, well understood, and no difficulty or mistake can arise. lb. It cannot be presumed that any traveler has a previous knowledge of the precises center of the worked part of all or of any considerable por- tion of the road he may travel, and hence to extend the statute as con- strued in Earing v. Lansingh, ante, to all seasons and circumstances would be to require in the seasons of deep snows an observance of a rule under a penalty when the rule itself was entirely impracticable. lb. It would be wholly impossible for the traveler to ascertain where the 608 ACTIONS FOE TOETS OR WEONGS. Negligence in relation to the law of the road. center of the worked part of the road is, and, therefore, he could not drive with reference to it. lb. The statute relates in express terms to traveling in carriages or other vehicles ; and, therefore, where a traveler on horseback meets another horseman, or a vehicle on a public highway, he is not required to turn out in any particular direction to avoid a collision ; all that is required of him is that he shall exercise prudence and care under the circum- stances, and when he does that he may turn out on the right or on the left of the road. Dudley v. BolUs, 24 Wend. 465, 472. A person on foot or on horseback cannot compel a teamster who has a heavy draft to leave the beaten part of the road, if there is sufficient room to pass ; and this rule applies where a person on horseback meets a buggy carrying three persons, drawn by a single horse. Beach v. Parmeter, 23 Penn. St. 196. And see Orier v. Sam,pson, 27 id. 183. The " law of the road " does not apply to one driver seeking to pass another on the same road. Bolton v. Colder, 1 Watts (Penn.), 360 ; Avegno v. Hart, 25 La. Ann. 235 ; S. C, 13 Am. Eep. 133 ; nor does it apply to buildings that are being moved through a public highway. Graves v. ShattuoTc, 35 N. H. 257 ; nor does it have any application in favor of persons crossing or turning into the road. Lovejoy v. Dolan, 10 Gush. 495. The statute has no application to cases in which there is a meeting of railroad cars with common vehicles. The former run upon a track which prevents them from turning either to the right or to the left ; while the statute refers to cases in which there is an equal ability to turn out. Hegan v. Eighth Avenue R. R., 15 N. Y. 380. A cart, carriage or other vehicle which is about to meet a raih'oad car must yield the whole track. lb. But it may turn out on either side of the track, and if it turns out on the left side that will not, as a matter of law, prevent the owner of the carriage from recovering dam- ages for an injury which is sustained in consequence of driving or pro- pelling the cars at an improper rate of speed. lb. Where railroads are laid lengthwise upon a street or highway, it is not unlawful for common vehicles to travel upon the track, either across it or lengthwise. The company has the exclusive right to the track while its cars are passing, but its right is not otherwise exclusive. Other carriages must keep out of the way of the cars, and if they are hit, when the latter are proceeding at a reasonable and lawful rate of speed, and with all such care as, considering the subject, can be reasonably used, the owner cannot maintain an action against the company. Eut the company have no right to drive their cars immoderately, and it is ACTIONS FOE TORTS OR WRONGS. 609 Negligence in relation to the law of the road. in the highest degree dangerous for them to do so in the streets of a large city or town. Still, if they ofEend in that respect, and the driver of a common carriage or vehicle will negligently or willfully place him- self or remain upon their track and in their path, he has no right to claim damages. It is not, however, unreasonable for the private trav- eler to assume that the railroad cars will be driven moderately and pru- dently ; and he can then calculate distances and the time required to effect his own change of position, in order to prevent injury in such cases. But if he encounters a car which is driven furiously tlu-ough a crowded street, and he makes a mistake as to time in attempting to get off the way, culpable negligence is not necessarily to be imputed to him. And where a plaintiff's cart was struck by a car of the defendants, as the plaintiff was turning off the track to the left, it was held that this did not of itself put him in the wrong, where the jury found that the defendants' cars were negligently driven at an improper rate of speed. Megan v. Eighth Avenue R. B., 15 E". T. 380 ; Wilhrand v. Eighth Avenue B. B., 3 Bosw. 314. It is the duty of the driver of a street car to keep such a distance behind a vehicle in front, and to keep his horses and car under such control that they will not collide with the vehicle when it attempts to turn off the track. Adolph v. Cent. Park, etc., B. B. Co., 11 Jones & Sp. 199. But in an action to recover damages occasioned by a collision of vehicles in a highway, it appeared that the collision was caused by the plaintiff's unwisely and unnecessarily turning his horse so as to throw the rear part of his cart against the defendant's cars, and it was held that the plaintiff was not entitled to recover, and that a verdict in his favor must be set aside. Suydam v. Ground Street, etc., B. B. Co., 41 Barb. 375 ; S. C, 17 Abb. 304. When a collision does occur, in such a case, the presumption of negligence is always against the driver of the cart, and not against the conductor of the railway car, for the obvious reason that the former can deviate from the track, which the latter cannot do. lb. So, too, the mere fact that a car of a railroad company in the city of New York is proceeding upon the left-hand track will not, of itself, charge the company with fault or negligence, and subject them to damages which may result from a collision. Altreuter v. Hudson River B. B., 2 E. D. Smith, 151. In determining his own manner of using the public highway, a party has a right to rely upon ordinary prudence in the use of it by others, not to justify carelessness in himself, but to warrant him in pursuing his own business in a convenient manner. And, therefore, the proprie- 77 610 ACTIONS FOR TORTS OR WRONGS. Negligence in relation to the law of the road. tor of an omnibus line is liable for an injury wliicli results either from the negligence of a driver in his employ, or from the defective con- struction of a stage used on the line, where the party injured has not contributed to it by his own fault. Harpell v. Curtis, 1 E. D. Smith, 78. A traveler having before him the whole road free from obstructions, and having no notice of any vehicle behind him in season to stop or change his course, is at liberty to occupy any part of the road that he pleases. Foster v. Goddard, 40 Me. 64 ; Daniels v. Glegg, 28 Mich. 32. And when two persons, each without any better right than the other, strive to occupy the same place in the public highway, he is in the wrong who first uses force. Goodwin v. Avery, 26 Conn. 585. An action may be maintained for an injury received by being run against in the highway, though it may have been done accidentally, where the defendant was not otherwise blamable or negligent, than by merely driving on the wrong side of the road in a dark night. Lemne V. Bray, 3 East, 593 ; 'Williams v. Holland, 10 Bing. 112. So a person must use due care in the choice of a horse, carriage and harness, as well as in their management while on the road ; and if he drives an unbroken or too high-spirited horse, or pulls the wrong rein in driving, or if he uses imperfect harness, and the horse, by taking fright, runs away and kills another horse, or does other damage, the owner will be liable, if he has been negligent in any of tliose things which required care on his part. Wakeman v. Sohinson, 1 Bing. 213. But no action will lie, if the injury resulted from an unavoidable acci- dent. Id. And see Harvey v. Dunlop, Hill & Denio, 193; Sullivan V. Scripture, 3 ARen, 564; Holmes v. Mather, L. R., 10 Exch. 261 ; S. C, 14 Eng. Rep. 548 ; Brown v. Collins, 53 N. H. 442 ; S. C, 16 Am. Rep. 372 ; Bennett v. Ford, 47 Ind. 264. The law of the road is not so inflexible as to govern every case with- out reference to circumstances. In the crowded streets of a large city, situations and circumstances may frequently arise where a deviation from what is called the law of the road may not only be justifiable, but absolutely necessary. Wayde v. Carr, 2 Dowl. & Ryl. 255. In such cases the jury or the justice must determine the question of negligence from all the circumstances of the -case, and not merely by the law of the road. lb. Though the law of the road is not to be adhered to, if, by departing from it, an injury can be avoided, yet in cases in which parties meet on a sudden, and an injury results, the party on the wrong side of the road should be held answerable, unless it clearly appears that the party on the right side of it had ample means and opportunity to prevent the ACTIONS FOE TOETS OR "WEONGS. 611 Injuries by domestic and other animals. collision. Chaplin t. Mawes, 3 Garr. & Payne, 552. And see Handaysyde v. Wilson, id. 528. The act of exploding fire-crackers in the public streets, or in a public highway, is wrongful and unlawful ; and if any injury results there- from either to the persons of individuals or to their property, whether animate or inanimate, the wrong-doer is liable for the resulting dam- ages. Gonhlin v. Thmnpson, 29 Barb. 218. And, if a horse is so frightened thereby as to die in consequence, the wrong-doer will be liable to pay his value to the owner. lb. Infancy is no defense to such an action. lb. § 18. Injuries Iby domestic and other animals. When an action will lie for such injuries. The rights of property in domestic or in wild animals has already been noticed. Ante, 470. But this right of property is limited by a general rule, which requires every person so to use his property as not to injure another in his prop- erty or in his person. The liabiHty which attaches to the owner of animals varies according to the species of animal owned. There are some animals which do not usually injure persons, although they are inclined to roam about and commit trespasses unless restrained. In such cases the subject has already been sufficiently discussed. Ante, 501. The cases which will be here noticed are such as relate to injuries to human beings or to animals. A person has a right to keep a fierce dog for the protection of his property, but he must not keep such an animal in the avenues or approaches to his house, so that persons who are exercising a lawful right in coming to the house, or in passing it, are liable to be injured. Sarch v. Blackbwrn, 4 Oarr. & Payne, 297 ; S. C, Mood. & M. 505. But the owner of mischievous, or even of dangerous animals is not always, and under all circumstances, liable for the injuries committed by them. The owner of domestic and other animals not necessarily inclined to commit mischief, as dogs, horses, oxen and swine, is not liable for any injury committed by them to the person or the personal property or animals of another, unless it is shown that the owner had previous notice or knowledge of the vicious propensity of the animal, or that the injury was attributable to some other neglect on his part ; for the general rule is, that it is necessary, in an action to recover damages for an injury done by such animals, to prove a scienter on the part of the defendant. If a man keeps a vicious animal, which he knows to be such, and he 612 ACTIONS FOE TORTS OR WRONGS. Injuries by domestic and other animals. does not take sufficient measures to prevent it from doing mischief, he will be answerable for any injury which it may do to the property or person of another. In one case the plaintiff recovered damages in an action for injuries which were inflicted by a vicious bull, although it appeared that the bnU was attracted by a cow, in a particular state, which the plaintiff was driving past the field in which the bull was, and that the plaintiff first struck the bull on the head to drive him away from the cow. Blackman v. Sirnvmons, 3 Carr. & Payne, 138. In the case last cited the defendant had notice that the bull had run at a man previously, and yet at the time when the plaintiff was injured the only security against injury was a strap and chain fastened round the bull's neck, but not in such a manner as to prevent him from run- ning. So, too, the defendant had notice at the time he purchased the bull that he was very mischievous, which he said would suit him all the better. In such a case the defendant is bound to secure the ani- mal at all events, and he will be liable in damages to a party subse- quently injured if the mode of fastening or securing proves insufficient, lb. So, in another action against the owner of a bull for an injury in- flicted upon the plaintiff by the animal while it was being driven along the highway, it appeared, in evidence, that the plaintiff, who was passing along the road, wore a red handkerchief, which irritated the animal and caused the attack on the plaintiff; it also appeared that after the accident the defendant said that the red handkerchief caused the injury, as he knew that a bull would run at any thing red, or that the bull would do so ; and this was held to be sufficient evidence to go to the jury on the question of knowledge. Hudson v. Roberts, 6 Exch. 697. A man who keeps a dog which he knows is accustomed to bite sheep and lambs or other animals, and which is of a ferocious or mischievous disposition to his knowledge, will be liable for the mischief which such dog may do. Hartley v. Harriman, 1 Barn. & Aid. 620. So, one who keeps a dog which is accustomed to bite mankind is answerable for in- juries done by him ; and proof that the defendant had warned a per- son to beware of the dog lest he should be bitten by him is evidence to go to a jury on the question of knowledge. Judge v. Cox, 1 Stark. 285. So, in an action for not sufficiently securing a fierce dog kept by the defendant, and by which the plaintiff was bitten, the plaintiff may re- cover, notwithstanding he had on a previous day been warned against going near the dog, if the jury think that the accident was not occar ACTIONS FOE TORTS OE WRONGS. '613 Injuries by domestic and other animals. sioned by the plaintiff's own. carelessness and want of caution. Curtis V. Mills, 5 Carr. & Payne, 489. Where a dog has once bitten a man, to the knowledge of the owner, -who afterward lets him go about and lie at his door, such owner will be liable, if he again bites a man, though it happened by such person's accidentally treading on the dog's toes. Smith y. Pelah, 2 Strange, 1264. So, where it was shown that it was reported that the defendant's dog was mad, and that the defendant had tied him up in a cellar, but that the dog had broken loose and had bitten the plaintiff's child, which subsequently died of hydrophobia, it was held that the fact of tying the dog up was evidence of knowledge which must be submitted to the jury, who found for the plaintiff. Jones v. Perry, 2 Esp. 482. But, in another case, it was held that proof that the dog was of a fierce and savage disposition, and that the defendant generally kept him tied up, and that he promised the plaintiff a pecuniary satisfaction after she had been bitten, was not sufficient proof to submit to the jury, on the question whether the dog was accustomed to bite mankind to the knowledge of the defendant. Beck v. Dyson, 4 Camp. 198. But this last case is not followed by the later cases. And where it was shown that the defendant, on being informed that his dogs had bitten the plaintiff's cattle, offered to settle for the injury, if "it could be proved that his dogs had done it ; this was held to be evidence which must be submitted to the jury, although it was entitled to but little weight. Thomas v. Morgan, 2 Cromp., Mees. & Rocs. 496. But merely proving that the dogs were of a savage disposition, and that they had bitten the cattle of other persons, is not sufficient evidence that the defendant knew that they were accustomed to bite cattle, lb. A person who keeps an animal which is accustomed to attack and bite mankind, with a knowledge that it is so accustomed to bite, is prima facie Hable in an action on the case, at the suit of any person who is attacked and injured by such animal, without any averment in the complaint of negligence or default in the plaintiff in not taking care of or securing it. The gist of the action is the keeping of the animal after knowledge of its mischievous propensities. May v. Bur- dett, 9 Ad. & El. (N. S.) 101. The right of action does not depend upon the question of negligence by the defendant, because the gravamen is the keeping of a ferocious animal, with a knowledge of its propensities, and the consequent injury to the plaintiff. > Card v. Case, 5 Man., Grang. & Scott, 622 ; Lynch V. MoNally, 73 K Y. 347; Mailer v. McKesson, id. 195. It may 614 ACTIONS FOE TOETS OR WEONGS. Injuries by domestic and other animals. be that in a certain sense an action against the owner for an injury by a dog or other animal is based upon negligence; but such negli- gence consists not in the manner of keeping and confining the animal, or the care exercised in respect to confining him, but in the fact that he is ferocious, and that the owner knows it ; and proof that he is of a savage and ferocious nature is equivalent to express notice. lb. The owner is bound to keep the animal secure at his peril, and if it does mischief, negligence is presumed. This presumption cannot be rebutted by proof of care on the part of the owner in keeping or restraining the animal ; and he is absolutely liable, unless relieved by some act or omission on the part of the person injured. lb. In an action to recover for injuries inflicted by a ferocious animal, an allegation in the com- plaint that it was the duty of the defendant to use due and reasonable care and precaution in keeping the animal is an immaterial averment. Card V. Case, 5 Man., Grang. & Scott, 622. It is no defense to an action against the owner of a vicious and ferocious dog, to recover for injuries received by the plaintiff, that the injury is the first actually inflicted by the animal. Rider v. White, 65 IS". T. 54. Nor is con. tributory negligence a defense. Lynch v. McNally, 73 N. T. 347. To constitute a defense, it must be established that the person injured did some act from which it may be alfirmed that he brought the injury upon himself. lb. ; Muller v. McKesson, 73 N. Y. 195. If a dog has bitten persons, and his owner has notice of the fact but afterward suffers him to run at large, he will be liable if he bites another person, although the animal is generally inoffensive. Buckley Y.Leon- ard, 4 Denio, 500. Where a dog has a vicious habit of attacking and biting other dogs, without being incited to so do, of which the owner has knowledge, and he then permits such dog to go at large, when he attacks and kills the dog of a person who has lawfully come upon the defendant's premises, such defendant will be liable to the owner of the dog so killed. Wheeler V. Brant, 23 Barb. 324. If an individual knows that his dog is in the habit of following teams driven by him, and of watching them after they are hitched and left by him ; and if he also knows that the dog is accustomed to attack and bite strangers who approach the teams so watched, he will be liable for any injury which the dog may do to any person who lawfully approaches the team for the purpose of unhitching it. Fair child v. Beniley, 30 Barb. 147. A man who owns such a dog, and who knows his character, must secure it at home so that it will not or cannot follow him. If it follows him and bites a person who is rightfully going to rem6ve the ACTIONS FOE TOETS OE WEONGS. 615 Injuries by domestic and otlier animals. team from the shed of an inn where the owner left it, and where the dog is watching it, such owner is liable in damages, lb. A man may keep a dog for the necessary defense of his house, his garden, or his fields, and may cautiously use him for that purpose in the night time ; but if he permits a fierce and mischievous dog to be at large on his premises with a knowledge that he has bitten persons, and a person is afterward bitten by him in the day time, the owner will be liable in damages, even though the person bitten was trespassing on the defendant's grounds by hunting in his woods without license. Loomis V. Terry, 17 Wend. 496. But where the defendant kept a dog which he let loose for the pur- pose of watching his house and yard in the night time, it was held that he was not liable to an action in favor of one who had incautiously or Imprudently gone into the yard in the night time. Brook v. Copeland, 1 Esp. 203; Saroh v. Blackburn, 4 Oarr. & Payne, 297. It is not merely the owners of dogs or other animals who are liable for their acts ; for in an action against a person for keeping a dog which was accustomed to bite mankind, it is not essential that the dog should be his ; if he harbors the dog or allows it to be at his premises, or to resort to them, that will be sufficient to render him liable as though he were owner. MoKone v. Wood, 5 Carr. & Payne, 1. There are some exceptions to the rule which requires proof that the defendant knew of the mischievous character of his dog or other animal before he can be made answerable. For, although the owner of a domestic animal is not, in general, liable for an injury committed by it, unless it is alleged and proved that he had notice of its vicious pro- pensities, yet, if the animal is unlawfully in the close of another, and commits the mischief there, the owner is liable without alleging or proving knowledge. Van Leuven v. Lyhe, 1 JST. Y. 515. In such cases the complaint ought to be in trespass for breaking and entering the plaintiffs close, and the particular mischief done ought to be set out in aggravation of the trespass. lb. Where the sow and pigs of the de- fendant went wrongfully and unlawfully upon the plaintiff's land, and there destroyed a calf belonging to the plaintiff, the defendant was held to be liable ; but the complaint must allege either a trespass on lands with the injuries done, or it must allege a scienter, or the action will not be maintained. lb.; S. 0., 4 Denio, 127. So, in an action which is founded upon a trespass by the defendant's horses. upon the plaintiff's lands, and there kicking and breaking the collar bone of the plaintiffs horse, it is not necessary to allege in the complaint or to prove on the trial that the defendant had notice or 616 ACTIONS FOE TORTS OR "WRONGS. Injuries by domestic and other animals. knowledge of the vicious propensity. Dunckle v. KocJcer, 11 Barb. 387. In such cases the action is for the trespass to the real estate, and the other matters are merely in aggravation, and the sci'ewfe/" is entirely immaterial, since the owner of the animal is liable for all damages, whether he knew of any vicious propensity or not. lb. The statute also makes an exception in the case of sheep which are injured or killed by dogs. " The owner or possessor of any dog that shall kill or wound any sheep or lamb shall be liable for the value of such sheep or lamb to the owner thereof, without proving notice to the owner or possessor of such dog, or knowledge by him that his dog was mischievous or dis- posed to kill sheep." 2 R. S. 975, § 9 (5th ed.). It will be observed that the language of the statute does not include any case but that of wounding or killing sheep or lambs ; and the courts do not extend its scope by construction. Where the action is brought for merely chasing and worrying sheep, the plaintiff must allege and prove knowledge on the part of the defendant, or he will not be liable. Auchmuty v. Ham, 1 Denio, 495. So, too, the provision of the statute which renders a person in possession of a dog, or one who suffers a dog to remain about his house for twenty days, etc., liable as owner for his mischievous acts, does not render an employer liable for mischief done by the dog of his hired laborer, where the dog was in the habit of following his master daily to his work on the farm of the employer, and of returning and staying each night at his master's house, which was distinct from that of his employer. lb. A person who is prosecuted for injuries done by his dog in such case is not liable to pay exemplary damages, where he has no knowledge of the mischievous propensities of his dog since the statute limits the recovery to the value of the sheep. lb. In an action for such injuries it will be sufBcient for the plaintiff to prove that his sheep, while upon his own premises, were bitten and killed by the defendant's dog, and he will be entitled to recover with- out further proof. Fish v. Skut, 21 Barb. 333. And the owner may resort to his action without making any application to the fence-viewers to inquire into the matter. lb. Possession of the sheep \&pri7nafacie evidence of title to them, and is sufficient to entitle the plaintiff to re- cover, lb. A joint action cannot be maintained against the separate owners of several different dogs which have killed and worried the sheep of the plaintiff. Van Steenlurgh v. Tobias, 17 "Wend. 562. "Where dogs belonging to several owners are found in company, engaged in killing sheep, each owner is responsible for the injury done by his own dog, ACTIONS FOR TOETS OE WEONGS. 617 Injuries by domestic and other animals. and for no more. AuchmutyY. Hctmi, 1 Penio, 495. So, where cows belonging to several owners are found in the garden of an individual committing a trespass, each owner is liable at common law for the dam- age done by his own cow, and for no more. Partenheimer v. Yan Order, 20 Barb. 479. And in the absence of all proof as to the amount of damages done by each cow, the law will infer that the cattle did equal damage. lb. But this is now regulated by statute in cases where a special proceeding is commenced against estrays trespassing from high- ways. Code of Civil Procedure, § 3109. When an action will not lie. There are numerous cases in which no action can be maintained against the owner of domestic ani- mals which do injuries to other persons or to their property. It has already been seen, ante, 611, that it was essential to a right of action to show that the owner knew of the propensity of his domestic animals to do injury. And it may be stated as a general rule, that no owner of such animals will be liable for any injuries which they may commit, except for ordinary trespasses to land, unless it is clearly shown in some manner that the owner had notice or knowledge of such propen- sity, or that they had previously done similar injuries. If a man keeps a dog upon his premises for their protection, and another person comes upon the premises in the night, without any legal authority to do so^ and he is bitten by the dog, he is in that case injured by his own fault or negligence, and the owner of the dog is not an- swerable. SarcJi V. Blaokburn, 4 Carr. & Payne, 29Y ; S. C, M. & M. 505. To render the owner of a dog liable for an injury committed by him, it must appear by the evidence that the dog was vicious and that the owner knew it, or that he was a trespasser at the time of doing the in- jury. Fairchild v. Bentley, 30 Barb. 147. But, as has been shown, proof that the dog was of a savage and ferocious nature is equivalent to express notice to the owner. Ante, 614. The statute now requires the owners of wild animals used for ex- hibition to give notice to travelers of the approach of such animals. Laws of 1862, chap. 112. Where an injury happened to the plaintiff in consequence of his horse taking fright at an elephant passing along the highway, in the charge of a keeper, prior to the enactment of this statute, it was held that to render the owner of the animal liable for the damages sustained, it would be necessary to show, not only that such is the effect of the appearance of an elephant upon horses in general, but also that the owner knew or had notice of it. Soribner v. Kelley, 38 Barb. 14. It is 78 618 ACTIONS FOR TORTS OR WRONGS. Injuries by domestic and other animals. not in itself unlawful for a person to keep wild beasts, even though they may be such as are by nature fierce, dangerous, and irreclaimable ; but the propensity of such animals to do dangerous mischief being in- herent and well known, the owner or keeper is required to exercise such a degree of care in regard to them as will absolutely prevent the occurrence of an injury to others through such vicious acts as he is nat- urally inclined to commit. lb. To maintain an action for an injury caused by the vicious acts of such animals, it is not necessary to prove that it occurred through the actual negligence of the owner or keeper, because the negligence upon which his responsibility rests will be presumed. lb. Proof that an animal is of a savage and ferocious nature is equiva- lent to proof of express notice, for in such cases notice is presumed. Earl V. Yan Alstyne, 8 Barb. 630. But, if damage is done by any do- mestic animal which is kept for use or convenience, the owner is not liable to an action, unless he had notice that it had previously done mischief. And, therefore, the owner of bees, which are kept in hives, is not liable, at all events, for any incidental injury which they may happen to do. lb. And where, in an action against the owner of bees, for an injury done to the plaintiff's horses, while traveling along the highway past the place where the bees were kept, it appeared that the bees had been kept in the same situation for eight or nine years, and there was no proof that any injury had ever been done by them, but, on the contrary, witnesses residing in the neighborhood testified that they had been in the habit of passing and repassing the place frequently, without having been molested, it was held that this rebutted the idea of any notice to the defendant, either from the nature of the bees or otherwise, that it would be dangerous to keep them in that situation, and that he could not be made liable. lb. Where two dogs fight and one of them kills the other, and the owner of the killed dog brings an action against the owner of the vic- torious dog, the plaintiff must prove that the defendant's dog was the aggressor, or in the wrong in that particular fight, no matter what may have been the character and habits of the dog on other occasions. If the plaintiff's dog provoked the quarrel and caused the fight, the de- fendant, as owner of the dog, cannot be made responsible for the con- sequences. Wiley V. Slater, 22 Barb. 606. The cases in which dogs have attacked human beings, although they were trespassers, and in which their owners have been held liable, are not applicable in those cases in which one dog attacks another. lb. A distinction is to be ob- served between keeping a dog which is dangerous to human life, and ACTIONS FOE TORTS OE WEONGS. 619 Frauds in sales, exchanges, or otherwise. one which is iin willing to have strange dogs upon his master's premises, and which he is in the habit of attacking and driving off. lb. Where two dogs fight and one of them is killed, there is no general rule of law that the owner of the defeated animal can have satisfaction for his loss from the owner of the victorious dog. lb. At page 510, the court said : " Owners of valuable dogs should take care of them proportional to their value, and keep them within their own precinct, or under their own eyes. It is very proper to invest dogs with some discretion while upon their master's premises, in regard to other dogs, while it is palpably wrong to allow a man to keep a dog who may or will, under any circumstances, of his own volition, attack a human being. If owners of dogs, whether valuable or not, suffer them to visit others of their species, particularly if they go uninvited, they must be content to have them put up with dog fare, and that their reception and treatment shall be hospitable or inhospitable, according to the nature of the particular mood and temper at the time of the dog visited. The courtesies and hospitalities of dog life cannot well be regulated by the judicial tribunals of the land." § 19. Frauds in sales, exchanges, or otherwise. It would be ex- tremely difficult to give a definition of fraud which would include every possible case. And in courts of equity it has long been a rule with them never to lay down any general proposition as to what shall constitute a fraud, nor to adopt any general rule beyond which they will not go in cases of fraud, lest some means of avoiding such rule should be found out. Mortloch v. Buller, 10 Vesey, Jr., 306 ; Lawley V. Hooper, 3 Atk. 279. Courts of law do not in all cases take cognizance of acts which would be treated as a fraud in a court of equity. But there are some general rules which are observed in courts of law in relation to frauds which are simple and easily applied. Though in the first place it may not be amiss to notice some of the general definitions of fraud which have been given, for, so far as they go, they are equally as applicable to a court of law as to a court of equity. Pothier says the word fraud is applied to every artifice made use of by one person for the purpose of deceiving another. Labeo defines fraud to be any cunning, deception or artifice used to circumvent or deceive another. There may be other definitions which will be of service in determin- ing some cases, and therefore the following is submitted : Fraud is any act, sign, or language, which is resorted to or employed by one person to obtain an unfair and illegal advantage over another, whether the re- €20 ACTIONS FOR TORTS OR WRONGS. Frauds in sales, exchanges, or otherwise. suit be obtained by active misrepresentations, or by the illegal suppres- sion of such facts, circumstances or truths as the law requires to be dis- closed. When any party intentionally, or by design, misrepresents a material fact, or produces a false impression in order to mislead another, or to entrap or cheat him, or to obtain undue advantage of him ; in every such case there is a positive f raad*n the truest sense of the term. WilUnTc V. Vanderveer, 1 Barb. 599, 607. Frauds in relation to property are almost invariably connected with • some form of contract, though there may be eases of frauds which are actionable, though not connected with a contract ; for, as we have already seen, ante, 424, 425, fraud accompanied by damage is a good ground of action. Fraud vitiates every contract, and the defrauded party may always rescind the contract, or he may recover such damages as he has sus- tained thereby. Wheaton v. Baker, 14 Barb. 594; Lindsleyy. Fer- guson, 49 N. Y. 623. Fraud in obtaining a promissory note is a good defense to an action brought for its collection. Bwrber v. Kerr, 3 Barb. 149. Fraud by a purchaser in making a purchase of personal property will render the contract void, and the vendor may imme- diately sue for the purchase-money. Wtilson v. Foree, 6 Johns. 110. And see omte, 55, 65. The law abhors fraud as well as crime, and, therefore, it is always a legal presumption that a party is innocent of either until it is properly established by legal evidence. By this is to be understood that there is no presumption of fraud, as a matter of law. but that fraud, when established, is a conclusion or inference of fact from competent evi- dence, introduced in the particular case. The law never construes an instrument to have an unlawful meaning, as a legal implication or inference, when it is equally susceptible of an innocent intention. Momn V. Witleck-, 17 Barb. 388. It is not sufficient to avoid a contract on the ground of fraud merely because the party bound by it is illiterate, and that it was not read over to him, provided it was explained to him in substance, and there was no omission, concealment or misrepresentation of any of its obligations. Ellis r. MoOormick, 1 Hilt. 313. And the presumption of innocence extends so far that it will be sufficient to prove the signature of a person who cannot write, by showing that he directed his name to be affixed to the instrument without showing affirmatively that it was read over to him before execution, or that he knew its contents. Harris v. Siory, 2 E. D. Smith, 364 ; Kallenheok v. Dewitt, 2 Johns. 404 ; Moron v. McLa/riy, 75 N. Y. 25 ; Savings Institution v. Biir- ACTIONS FOE TORTS OR WROI^GS. 621 Frauds in sales, exchanges, or otherwise. dich, 20 Hun, 104; Upton v. TriUlcoGk, 91 U. S. 50. Fraud is always a question of fact for a jury, or the justice, where there is any evidence to establish it. Erwin v. Voorhees, 26 Barb. 127. But whether the evidence tends to establish fraud, or not, is always a ques- tion of law for the court. lb. But, notwithstanding it is a question of fact to determine whether a fraud is proved ; yet, it is still a question of law, whether the evidence given legally tends to make out a fraud ; and if fraud is found as a conclusion of fact, when there is no evidence tending to such conclusion, the verdict will be «et aside on appeal. Oage v. Parker, 25 Barb. 141. But when there is competent evidence upon the question whether a fraud has been committed, it is a question of fact, and if a jury is impaneled, the question cannot be taken from them and decided by the court as a mere question of law. Oa/rdner v. McEwen, 19 N". Y. 123. As a general rule, there must be a fraudulent intent to constitute an actionable fraud, ante, 428, though, as has already been seen, there may be a legal fraud which will render a party liable, even though he may not have been guilty of a moral fraud. But in actions involving questions of fraud, the intent is always a material inquiry ; and for the purpose of establishing the intent, other acts of a similar character, done about the same time, may always be shown. Ainsden v. Man- chester, 40. Barb. 158 ; Miller v. Barber, 66 N. T. 558 ; Eersey v. Benedict, 15 Hun, 382. And see amie, 57. It is a frequent remark that fraud must be proved, and that it cannot be presumed. Jackson v. King, 4 Cow. 207, 220 ; Fleming v. Slocum, 18 Johns. 403 ; Starr v. Feck, 1 Hill, 270 ; Marsh v. Falker, 40 N. T. 566; Wakemam, v. Dalley, 51 id. 27; S. C, 10 Am. Rep. 551. This proposition is true in the sense that fraud must be proved, and that the law does not presume fraud in the absence of due proof of its existence. But fraud is proved precisely like any other question of fact. It is not possible to prove fraud except by proving those facts and circumstances which constitute the fraud, or which are attendant upon it. When the evidence given is such as to authorize a jury or justice to find the existence of fraud in a given transaction, they are to draw such inferences from the evidence as are legal and proper under the circumstances. And, in every case, the question of intent must be a mere matter of inference from all the facts established by the evidence. And when a jury or the justice finds, upon competent evidence, that a party has been gvdlty of a fraud in a given case, the fraud is proved in the true sense of the rule requiring a fraud to be established by 622 ACTIONS FOE TOETS OE WEONGS. Frauds in sales, exclianges, or otherwise. evidence. Fraud is not established by that direct kind of evidence which is generally resorted to, to prove a written instrument, as a bond, a bill of exchange, or a promissory note. To establish a fraud requires a full development of all the facts, circumstances and incidents of the transaction. It is not always the case that a fraud is perpetrated by actual misrepre- sentations, or by acts calculated to produce false impressions, or to mislead the injured party. And a jury may be authorized to infer fraud, as a matter of fact, not merely from such affirmative acts, but they may also take into account every fact, circumstance and incident in tJie ease; and though these separate incidents may not, when standing alone, produce a full conviction as to the existence or non-existence of the alleged fraud, yet, when all the circumstances are combined and duly considered, they may have an overwhelming force in their influ- ence upon the judgment ; so much so, indeed, as to produce the same conviction that can be attained by the most positive evidence. But notwithstanding a fraud may be thus legally established by facts .and circumstances, it does not by any means follow that every case fur- nishes such circumstances as will warrant a jury in finding the existence -of fraud. The law abhors fraud, and for that reason it presumes a man to be innocent of it, until that presumption is overcome by legal evidence. And since the law confers so large a discretion upon a jury in weigh- ing evidence, it is the duty of jurors to consider the entire evidence with care, with dUigenee and deliberation, so that their verdict shall not, on the one hand, charge an innocent man with a fraud ; nor, on the other hand, deprive an injured party of that redress which the law intends he shall obtain. It is a recognized and established maxim of the law that no man .shall take any advantage from his own wrongful acts. And the rule .admits of illustrations from every branch of legal procedure. A party who obtains a venire from a justice, and then suppresses it, will not be allowed to object, on appeal, that the cause was not tried by a jury. Coon V. Snyder, 19 Johns. 384. So, a lender of money cannot avoid his own contract on the ground that it contains a usurious reservation in his own favor. Elwell v. Chamberlain, 4 Bosw. 320. So, a person whose duty it is to pay up a mortgage upon real estate wUl not be permitted to neglect that duty, and then purchase the mortgaged prop- erty on the foreclosure sale, and thus hold the same for his own benefit. Van Home v. Everson, 13 Barb. 526. So, a party who voluntarily obtains an irregular judgment, will not be heard on an appeal for its ACTIONS FOE TORTS OE WEONGS. 623 Frauds in sales, exchanges, or otlierwise. reversal, on the ground that the judgment is void by reason of his own acts. Fairbanks v. Corlies, 1 Abb. 150 ; S. C, 3 E. D. Smith, .'582. And it may be laid down as a general rule that a party cannot entitle himself to substantiate a claim, or to force a defense, by reason of any acts or misrepresentations which proceeded from himself, or were adopted or acquiesced in by him after full knowledge of their nature and quality ; and further, that where misrepresentations have been made by one of two litigating parties, in his dealings with the other, a court of law will either decline to interfere, or will so adjust the equities between the plaintiff and defendant, as to prevent an undue advantage from accruing to that party who is unfairly endeavoring to take advant- age of his own wrong. And where a party is not permitted to take advantage of his own wrong, he will not be allowed to take any advantage from the wrong- ful or fraudulent acts of his agent. Ante 6 ; Vol. T, 443. In a case of fraud it is always implied that the injured party has been deceived; and where there is no deception of any kind, there can be no fraud. For this reason it will be a good defense to an action of fraud to show that the complaining party had full knowledge of the matters which he alleges as the ground of fraud. And where the plaintifE gave two watches in exchange for a rifle, and subsequently sued the defendant, and declared in fraud, by alleging a fraudulent repre- sentation by the defendant at the time of the exchange, it was held to be a sufficient defense to show that the plaintiff Tcnew before the exchange that the defendant did not own the gun. Edick v. Crim, 10 Barb. 445. And see Gowen v. Simpson, 1 Esp. 290. And the cases go still further, for in some cases it is held that where the complaining party could readily inform himself of the truth by making inquiries, and he neglects to do so, he will not be entitled to recover on the ground that the representations were false and fraudulent. Babcoch v. Xibhey, 53 How. 255 ; Slaughter' s Administrators v. Oersmi, 13 Wall. 383 ; Long v. Warren, 68 N. T. 426 ; Savings Institution v. Burdick, 50 Hun, 104 ; Bayley v. Merrel, Cro. Jac. 386 ; Davis v. Sims, Hill ■& Denio, 234 ; White v. Seamer, 25 Barb. 236. The case last cited "was one in which it was alleged that the vendor of lands had made false statements in relation to his title to the lands in question ; but it appeared that the plaintiff knew that the title of the defendant was to come from a third person, who Hved near the plaintiff, that he did not make any inquiries as to the rights or title of the defendant, and it was ield that no action could be maintained. It is eminently just and wise to hold that there cannot be a fraud 624 ACTIONS rOE TOETS OE WEONGS. Frauds in sales, exchanges, or otherwise. where a party has full knowledge of the entire transaction which he alleges to be a fraud upon him. And there may be cases in which a party may be deprived of a right of action for fraud, where it appears that he had such knowledge as ought to put him on inquiry, especially where such inquiry may be readily and easily made. In such a case the principle may be somewhat analogous to that which deprives a party of a remedy in case his own negligence contributed to the injury which he has sustained. But such cases extend the rule quite far enough ; and if a party is guilty of a false and fraudulent representation or concealment, he ought not to be permitted to take any advantage of his own wrong, when the opposite party was really deceived by placing confidence in his statements. There ought to be such a thing as a right to confide in the statements of other persons, when deliberately made in a business transaction, and a legal liability on the part of the deceiving party, even though it is possible that the injured person might have ascertained the falsity of the pretenses before he was injured by them. See Sher- TThom, v. Johnson, 56 Barb. 59 ; Van Ejyps v. Harrison, 5 Hill, 63 ; Smith V. Countryman, 30 N. Y. 655 ; Mead v. Burm, 32 id. 275 ; Blossom V. Barrett, 3Y id. 434 ; S. C, 5 Trans. App. 434 ; Clark V. RanTcin, 46 Barb. 570. But there may be false statements which will not invalidate a con- tract. And where goods are sold, if the vendor is not induced to enter into the contract of sale, by reason of the false representations made by the vendee, the mere fact that the latter made such representations during the negotiation of the contract will not, of itself, avoid the contract of sale. Branson v. Wimam, 8 N. T. 182 ; S. C, 10 Barb. 406. And where one party alleges that the other was guilty of a fraud in the contract of sale, the declarations of the complaining party, which were made subsequently to the sale, may be proved, for the pur- pose of showing his afiirmance of the contract, with a full knowledge of all the facts. lb. And where, there is an attempt to impeach the good faith of a vendee, on the ground that he obtained the contract of sale by means of the fraudulent suppression of information obtained from a letter, the vendee may show the contents of the letter in evi- dence to rebut the presumption of fraud. lb. Fraud is always a suificient ground for rescinding a contract. Ante, 62. But a party who has been defrauded may reaffirm a contract, and if he does so with a full knowledge of all the facts, his express adoption of it will preclude him from afterward disaffirming it. Branson y. Wiman, ACTIONS FOR TORTS OR WRONGS. 625 Frauds in sales, exclianges, or otherwise. 8 JSr. Y. 182; S. C, 10 Barb. 406; Adams v. Sage, 28 K Y. 103; Lindsley v. Ferguson, 49 id. 623. This principle is illustrated by a great variety of cases, a few of ■whicb will be noticed. If a party is induced to purchase an article by reason of the fraudulent misrepresentations of the seller respecting it, and after discovering the fraud, he continues to deal with the article as his own, he cannot recover back the purchase-money from the seller. Campbell v. Fleming, 1 Ad. & El. 40. And, in such a case, the right to repudiate the contract is not afterward revived, even by the dis- covery of another incident in the same fraud. Where a vendee pur- chases goods upon a credit, with a fraudulent intention, at the time of the purchase, not to pay for them, and the vendor sues for the purchase- price of the goods before the term of credit has expired, he will fail in the action ; for, notwithstanding his right to repudiate the contract as a nullity for the fraud, and to maintain trover or replevin for the goods, yet, by suing upon the contract of sale, he affirms the contract and is bound by its terms. Ferguson v. Carrvngton, 9 Earn. &, Cress. 59. And see ante, 65, 69, Y3, 74 ; Read v. Hutchinson, 3 Camp. 351. So, where A. agreed to convey away certain rubbish for B., at a specified sum, under a fraudulent representation by B. as to the quantity of rubbish which was to be conveyed, it was held that if A. brought an action for the work actually done, he could recover only according to the terms of the special contract, although he had a righf, on the discovery of the fraud, to repudiate the contract, and sne B. for the deceit. Selway v. Fogg, 5 Mees. & Wels. 83. But it must be remembered that a defrauded party will not be barred of his right of action for fraud by any act tending to an affirmance of the contract, unless he had at the time of such act knowledge of the facts constituting the fraud. A bare suspicion, not founded upon facts or upon any investigation, is not sufficient. Baker v. Spencer, 47 N. Y. 562 ; Baher v. Lever, 67 id. 304 ; S. C, 23 Am. Rep. 117. Mere delay in discovering tlie fraud will not deprive him of the right. Tb. Actions are so frequently brought for fraudulent concealments in sales and exchanges of property, that it may be desirable to give the views of some of the standard law writers, as well as some of the de- cisions of the courts. ' ' If the seller knows of a defect in his goods, which the buyer does not know, and if he had known, would not have bought the goods, and the seller is silent, and only silent, his silence is nevertheless a moral fraud, and ought, perhaps, on moral grounds to avoid the transaction. But this moral fraud has not yet grown into a legal fraud. In cases of 79 626 ACTIONS FOE TOETS OE WEONGS. , Frauds in sales, exclianges, or otherwise. this kind there may be circumstances which cause this moral fraud to be a legal fraud, and give the buyer his action on the implied warranty, or on the deceit. And if the seller be not silent, but procure the sale by means of false representations, then the rule of caveat emptor does not apply, and the seller is answerable for his fraud. But the weight of authority requires that this should be active fraud. The common law does not oblige a seller to disclose all that he knows, which lessens the value of the property he would sell. He may be silent, leaving the purchaser to inquire and examine for himself, or to require a warranty. He may be silent and be safe, but if he be more than silent, if by acts, and certainly if by words, he leads the buyer astray, inducing him to suppose that he buys with warranty, or otherwise preventing his ex- amination or inquiry, this becomes a fraud of which the law wiU take cognizance." 1 Pars, on Cont. 461. " The writers of the moral law hold it to be the duty of the seller to disclose the defects which are within his knowledge. But the common law is not quite so strict. If the defects in the article sold be open equally to the observation of both parties, the law does not require the vendor to aid and assist the observation of the vendee. Even a war- ranty will not cover defects that are plainly the objects of the senses ; though if the vendor says or does any thing whatever, with an inten- tion to divert the eye, or obscure the observation of the buyer, even in relation to open defects, he would be guilty of an act of fraud. A de- diiction of fraud may be made, not only from deceptive assertions and false representations, but from facts, incidents and circumstances which may be trivial in themselves, but decisive evidence in the given case of a fraudulent design. "When, however, the means of information relative to facts and circumstances affecting the value of the commodity be equally accessible to both parties, and neither of them does or says any thing tending to impose upon the other, the dis- closure of any superior knowledge which one party may have over another, as to those facts and circumstances, is notrequisitetothe valid- ity of a contract. There is no breach of any implied confidence that one party will not profit by his superior knowledge, as to facts and circumstances open to the observation of both parties, or equally within the reach of their ordinary diligence ; because neither party reposes in any such confidence, imless it be specially tendered or required. Each one in ordinary cases judges for himself, and relies confidently, and perhaps presumptuously, upon the sufficiency of his own knowledge, skill and diligence. The common law afEords to every one reasonable protection against ACTIONS FOR TORTS OR WRONGS. 627 Frauds in sales, exchanges, or otherwise. fraud in dealing ; bnt it does not go to the romantic length of giving indemnity against the consequences of indolence and folly, or a care- less indifference te the ordinary and accessible means of information. It reconciles the claims of convenience with the duties of good faith, to every extent compatible with the interests of commerce. This it does by requiring the purchaser to apply his attention to those particu- lars which may be supposed within the reach of his observation and judgment ; and the vendor to communicate those particulars and defects which cannot be supposed to be immediately within the reach of such attention. If the purchaser be wanting of attention to these points, where attention would have been sufficient to protect him from surprise or imposition, the maxim ca/oeat emptor ought to apply." 2 Kent's Com. 48i, 485. As to the meaning of this maxim, see ante, 90. According to the views thus expressed by these authors, either party may, there- fore, be innocently silent as to the grounds or matters which are open to both to exercise their judgment upon, and in this case, aliud est celare, aliud taoere, or in other words, silence is by no means equivalent to concealment. In one ease the plaintiff purchased a bull for the use of his cows, and the defendant knew that the plaintiff bought him for that purpose. When the bull was a yearling, he got no calves. The defendant knew this fact, and did not communicate it to tlie plaintiff, nor had the plaint- iff any knowledge of it. But it was held that these facts did not fur- nish any ground of action, and a judgment in favor of the plaintiff was reversed. Paul v. Eadley, 23 Barb. 521, 527. The court, by Rose- KRANS, J., said : " In cases of executory sales, the common-law rule is, I conceive, that the vendor is not liable for damages arising from the latent defects known to him, and unknown to the purchaser, except in cases where the vendor has warranted the article sold, or has made false representations, or has used some active means to conceal such defects, or some artifice to mislead or deceive the purchaser in regard to such defects, and that, if the vendor is merely silent, he is not re- sponsible for damages by reason of such defects." In the case last cited, it does not appear from the report that the defendant said or did any thing to deceive the plaintiff ; he merely remained silent. And see Gage v. Parker, ante, 6. But it would take very slight acts, or very few words to turn such a case into a fraud. For, where the de- fendant, upon an exchange of horses with the plaintiff, told the plaint- iff that the horse had balked once with S., who had formerly owned him, but that S. whipped him and made him go ; but the defendant did not disclose the fact that the horse was purchased by the defendant 628 ACTIONS FOE TORTS OR WRONGS. Frauds in sales, exchanges, or otherwise. as a halky horse, and that he and his brother had used him carefully, as they would have used any horse that was balky, while the defendant owned him, and that S. had so used the horse before he sold him to the defendant, this was held to be a fraudulent concealment of ma- terial facts, in relation to the defect, which rendered the defendant liable for damages. Nicldey v. Thomas, 22 Barb. 652. In this case the defendant stated to the plaintiff that the horse had balked once,\m.\. that he was made to go by whipping. Such a statement of the tran- saction, connected with an intentional concealment of the other mate- rial facts, could scarcely fail to mislead the purchaser. And when the defendant assumed to say any thing upon the subject, he was bound to disclose fully such material facts as he knew ; because, by expressly mentioning that fact, and not stating more, he left the inference that there had been a full and fair statement given. And it is a legal maxim that the express mention of one thing implies the exclusion of another. Broom's Leg. Max. 505. So, in another case, the plaintiff had lost a flock of sheep, and had made search and inquiry for them without effect. The sheep were sub- sequently taken up in the highway by one D., who informed one of the defendants thereof. The other defendant then went to the plaintiff, and, concealing from him his knowledge that the sheep had been found, he inquired of the plaintiff whether he had found them. The plaint- iff replied that he had not, when the defendant said "^^ supposed he never would find them," and he then offered the plaintiff $5.00 for the sheep, which the plaintiff accepted, and gave a bill of sale of them. The defendants then went to D. and claimed the sheep and their fleeces, which were delivered to them. And in an action by the plaintiff against the defendants to recover the value of the sheep and the wool, on the ground that they had been obtained by fraud, it was held that the action was maintained, because the expression of a belief by one of the defendants to the plaintiff that he would never find the sheep, when he himself knew where they were at that time, was such an act of deceiving and misleading the plaintiff as amounted to a fraud. Bench v. Sheldon, 14 Barb. 66, 74. The court said, by Johnson, J. : " Here the defendant, who negotiated the purchase, after ascertaining that the plaintiff had not been able to find his sheep, told him that he did not believe that he ever would find them. The object of this was clearly to discourage the plaintiff from making further search or inquiry for his property, to induce him to sell it, as property which might never be discovered, for a mere nominal price, and to create the impression in the plaintiff's mind that he, the purchaser, did not know where the ACTIONS rOK TOETS OR WRONGS. 629 Frauds in sales, exchanges, or otherwise, sheep were, or that any one had taken them up. It was equivalent to saying I have not found them, and do not know of any one wlio has, and am of opinion that you will not be able to find them. The fact of their having been found was a material circumstance affecting the price ; and the attempt to mislead and create a false impression in regard to the situation of the property was a fraud of which the law justty takes cognizance." The opinion of the court is equally explicit, that if the defendants had merely remained silent, and had purchased the sheep without disclosing the fact that they had been found, there would not have been an actionable fraud committed. And see Hill v. Gray, 1 Stark. 434; and ante, 55 to 62. These cases which have been cited furnish an admirable exposition of the law, and they serve as well to show its practical application when the question relates to a concealment of facts, as to a misrepresentation of them. It is a general principle that every man is bound to know the law, and that his ignorance of it is not any excuse, nor does it give him any advantage. Carpentier v. Minturn, 65 Barb. 293 ; Curtis v. Brooks, 37 id. 476 ; Silliman v. Wing, 7 Hill, 159 ; Supervisors of Onondaga Y. Briggs, 2 Denio, 40. But if a party is induced to enter into a con- tract by reason of the fraudulent representations of the other party as to its legal effect, the party induced to contract, relying upon these rep- resentations, may insist upon the fraud as a defense to an action brought by the other party upon the contract. Cooke v. Nathan, 16 Barb. 342. And see Barker v, Clark, 12 Abb. (N. S.) 106 ; Champlin V. Laytin, 18 Wend. 422, 423. As mere silence does not imply a warranty, or constitute a fraud, so any remarks by way of simple commendation cannot be construed to amount to a fraud. Such remarks will, in most cases, be regarded merely as an invitation to custom, since every vendor will naturally aifirm that his own wares are good, and unless it appears from the evidence, or from the words used, that the affirmation at the time of the sale was intended as a warranty, or that such must be its necessary meaning, it is, therefore, laid down that, in a purchase witliout a warranty, a man's eyes, taste and senses must be his protection ; and that where the affirmation is mere matter of opinion, and the vendee may himself in- stitute inquiries into the truth of the assertion, the affirmation must be considered a nude assertion, and it is the vendee's own fault from his own laches that he is deceived. Before a fraud can be actionable, or be available as a defense, it must appear that the fraud related to a material matter, and that it had some influence on the dealing or transaction. Branson v. Wiman, 8 N. Y. 630 ACTIONS FOE TOETS OE WEONGS. Replevin. 182 ; S. C, 10 Barb. 406. So, too, if the action is founded upon rep- resentations made by the defendant, it must be made to appear that he l)elieved, or had reason to believe, at the time he made them, that the representations were false, or that, without knowledge, he assumed or intended to convey the impression that he had actual knowledge of their truth, and that the plaintiff relied upon them to his injury. Wakeman v. Bailey, 51 N". T. 27 ; S. C, 10 Am. Eep. 551 ; Indian- apolis, Peru. & Chicago R. R. Co. v. Tyng, 63 K. Y. 653. § 20. Replevin. Under the Code of Civil Procedure the remedy formerly termed " replevin '.' is called " an action to recover a chattel." But the old name is familiar, and is quite as convenient as the new one, and it is, therefore, preferred. This is one of the oldest forms of actions, though it has been greatly modified in the course of time, and it has but recently been made applicable to justices' courts. This action originally lay in only one instance, which was in case of a distress wrongfully taken, without sufficient cause ; and its object was to re-de- liver the pledge or thing taken as a distress, and to restore it, if the right to it were adjudged against him. The action took its name from the object of the process. In this State the action of replevin has been greatly modified, and it is now extended by statute to all cases of wrongful taking or detention of goods or chattels. It has usurped the place of the old action of detinue, and may now be said to lie in all cases not merely of wrongful distress, but of any wrongful taking or detention of chattels ; its object being the specific recovery of the identical property, and also such damages as have been sustained by reason of the wrongful taking or detention. The remedy known in England as an action of replevin was some- what modified in this State by the Eevised Statutes. See 2 E. S. 522 ; 3 E. S. (5th ed.) 845. In 1848, the Code of Procedure was adopted containing a chapter intended to provide a substitute for the former action of replevin. This act, although incomplete in its provisions, did provide a remedy substantially like the former action. By the general repealing act of 1880, both these statutes were repealed, so far as they related to the remedy in question, and new provisions, intended to harmonize, amend and consolidate the former statutes, were given by the Code of Civil Procedure. See Code of Civil Procedure, §§ 1689- 1692. These new provisions are made applicable to justices' courts (See Code of Civil Procedure, § 2919) ; and in connection with the provisions as to jurisdiction (Code of Civil Procedure, § 2862, subd. 7), furnish the statutory restrictions upon the general right to maintain this form of action in such courts. ACTIONS, FOR TORTS OR WRONGS. 631 When replevin lies. When the action lies. It may be laid down as a general rule that replevin may always be maintained by the true owner of property, when he is entitled to its immediate possession, and when it has been wrongfully taken, or is wrongfully detained from him. If the plaintiff was in the actual possession of personal property, which was coupled with an equitable interest therein, at the time of its seizure by a sheriff, this will be sufficient to enable the plaintiff to maintain an action, and to entitle him to a return of the property, not- withstanding the general property and the right of immediate posses- sion is at tbe same time in a stranger, if the defendant does not show any privity between himself and such stranger. Johnsooi v. Oarnly, 10 N. T. 570 ; Frost v. Mott, 34 id. 253. A purchaser of property, to whom the title is actually transferred, may maintain the action, although lie has not paid for the goods. Johnson v. Ca/rnly, 10 N. Y. 570. Replevin will lie by a vendor against a purchaser who has obtained goods or chattels by fraudulent representations. Ants, 65, 56. So where property is sold conditionally, upon an agreement that the title shall not pass until the property is paid for, or upon any other condi- tion, the vendor may maintain replevin for the property if it is not paid for as agreed, or if the conditions are not performed. Ante, 23. A person who has a valid lien upon goods and chattels may re- cover their possession from their actual owner, for the purpose of re- taining them until bis claim is satisfied, if such owner obtained posses- sion of them unlawfully or fraudulently. Yol. I, 661 ; Bak-er v. Hoag, 7 Barb. 113 ; S. C, 7 N. Y. 555. But a voluntary surrender of the possession will waive the lien. Yol. I, 661. A mere levy upon personal property, by an officer, where it is not authorized by law, without either a sale or a removal is a trespass, and replevin lies against the officer who made the levy, and against the plaintiff who directed it. Stewart v. Wells, 6 Barb. 79 ; Alvord v. Haynes, 13 Hun, 26 ; Latimer v. Wheeler, 1 Keyes, 468 ; S. C, 3 Abb. Ct. App. 35 ; omte, 546. So, an actual levy and sale of personal property which belongs to a person who is not defendant in the execu- tion is a trespass, even though there was no actual interference with the property, and replevin will lie against both the officer and the pur- chaser, especially when the plaintiff in the execution is the purchaser. NeffY. Thompson, 8 Barb. 213. An actual possession by the owner, at the time of the wrongful sale, is not, necessary to shpport an action of replevin, provided he has a right of immediate possession. lb. See Code of Civil Procedure, § 1690. So replevin lies by A. for his property which is taken from his 632 ACTIOiTS FOE TOETS OE "WRONGS. When replevin lies. possession by virtue of a warrant, attachment, or execution against B. Judd V. Fox, 9 Cow. 259. So, where A. owns the general property in chattels, and he has the constructive possession of them, though they are in the actual possession of B. at the time they are taken by an officer under an execution against B., this is sufficient to entitle A. to main- tain the action. Dunham v. WyoTcoff, 3 Wend. 280. So replevin lies against a plaintiff by whose direction an execution in his favor is levied upon articles which turn out to be the property of a third person. Allen V. Crary, 10 Wend. 349 ; Fonda v. Van Home, 15 id. 631 ; Knapp V. Smith, 27 N. T. 277. And so, a receiptor of goods may maintain replevin for them, if they are wrongfully taken from his possession and custody. Miller v. Adsit, 16 "Wend. 335. "Where all the joint owners of property which stood in the name of one of them, upon the insolvency of the others, agree that the one in whose name it stands shall hold it for the payment of their debt which was contracted in purchasing it, he acquires such an ownership in the whole as will enable him to maintain replevin against a subsequent purchaser from the insolvent owners, but with notice of the agi-eement. Beecher v. Bennett, 11 Barb. 374. Where chattels are leased for a term, the lessor cannot, before its expiration, maintain replevin for them against a third person. Bruce v. Westermlt, 2 E. D. Smith, 440. It has been held in a number of cases that replevin for a wrongful taking of goods and chattels will lie whenever an action for trespass can be maintained for such wrongful taking. Stewart v. Wells, 6 Barb. 79 ; Rogers v. Arnold, 12 Wend. 30 ; Chapman v. Andrews, 3 id. 240 ; Marshall v. Bamis, 1 id. 109 ; Olarh v. Skinner, 20 Johns. 465 ; Cresson v. Stout, 17 id. 116 ; Pamghurn v. PatHdge, 7 id. 140. And see Stowell v. Otis, 71 N. Y. 36. But this is not universally true. In trespass the plaintiff may recover the damages he has sustained by reason of the wrongful taking of a chattel from his possession by the defendant although at the time the action is commenced the defendant is the owner or has acquired the right to the possession of the chattel. But as the action of replevin is partly in rem, the plaintiff, to maintain it, must show a right to have delivery of the chattel at the time the action is commenced. Sharp v. Whittenhall, 3 Hill, 576 ; Wood v. Orser, 25 ¥. Y. 348 ; Wheeler v. Train, 3 Pick. 255, 268. If the plaintiff has no title to the chattel and no right to its possession at the time when the action is commenced, he has no right to take it from the possession of the defendant, no matter how imperfect his title is. Black Rinwr Ins. Go. v. Wew York Trust c& Loan Co., 73 N. Y. 282 ACTIONS FOR TORTS OR WRONGS. 633 When replevin lies. 291. The action for the recovery of specific chattels is f ouaded upon the right of property, and to maintain it the plaintiff must show that he is the owner of the property claimed, or that it has been wrongfully taken from his possession by the defendant. Johnson v. Elwood, 53 N. Y. 431. If the chattel has been taken from the possession of the plaintiff by a mere wrong-doer, and no change in the title or right of possession has taken place between the wrongful taking and the com- mencement of the action, the prior possession of the chattel by the plaintiff will hQ prima faoie evidence of a right, which, if not rebutted, will entitle hitn to recover. See Stowell v. Otis, 71 N. Y. 36 ; Rogers V. Arnold, 12 Wend. 30. Replevin lies at the suit of the owner of a chattel, against a sheriff, constable or other officer, who has taken it from the owner's servant or agent, while employed in the owner's business, by virtue of an execu- tion against such servant or agent ; the actual possession of the property, in such a case, being considered as remaining in the owner, and not in the defendant in the execution. Glarh v. Skinner, 20 Johns. 465. And see Hall v. Tuttle, 2 Wend. 475. Where replevin is brought for the unlawful taking of personal prop- erty, it is essential for the plaintiff to establish that he was either in the actual possession, or that he was entitled to the immediate possession of the property, at the time it was taken. Where the plaintiff's title is founded upon a chattel mortgage, which is not due, and when, by the terms of the mortgage, the mortgagor was to retain possession and enjoyment of the property until default in payment, the plaintiff cannot maintain replevin against the defendant for a wrongful taking of the property, if he took it by virtue of an execution or other process, before any default occurred in the mortgage payment. Redman v. Hendricks, 1 Sandf. 32. And see Vol. I, 285. But where a chattel mortgage provides that the mortgagor shall have the possession of the mortgaged property until default in payment, unless the mortgagee should sooner demand the same, the mortgagor may maintain replevin against the mortgagee for the property, where the latter took the property without the knowledge or consent of the mortgagor, before any default occurred, and without any demand of the possession having been made. Newsam v. Finch, 25 Barb. 175. And see Vol. I, 286. If, however, the mortgagor is in default in not paying the mortgage debt, the mortgagee has a right to take the property into his possession and dispose of it at his pleasure. Talmam, v. Smith, 39 Barb. 390. And see Vol. I, 283. If, after forfeiture, the mortgagee sells the prop- 80 634 ACTIONS FOR TOETS OE WEONGS. Wlien replevin lies. erty to a third person, with the consent of the mortgagor, this will be equivalent to a formal foreclosure of the equity of redemption ; and the purchaser may maintain replevin against a sheriff or constable who levies upon and takes possession of the property, by virtue of an execu- tion against the mprtgagor, when the judgment on which execution was issued was not rendered until some time after such sale by the mortgagee. lb. The title of such purchaser cannot be assailed by creditors of the mortgagor, if they had no lien upon the mortgage property at the time of such sale. lb. After a default in a chattel mortgage, the mortgagee's title and right of possession are sufficient to enable him to maintain replevin for a wrongful taking against any one who may wrongfully take the property from the mortgagor. Fuller v. Acker, 1 Hill, 473. In replevin for the wrongful taking of a span of horses, proof that the plaintiff purchased and took possession of the horses in August, and that in the following month the defendant had them in his posses- sion, and took them to the stable of a third person, where they were left to be kept, is prima facie evidence of a tortious or unlawful taking, which, if unanswered, will entitle the plaintiff to a verdict. Morris v. DanielsoTb, 3 Hill, 168. As a general rule, replevin will not lie for a wrongful talcing, unless an action of trespass could have been maintained for the same taking. And the action does not lie against one who innocently and without fault obtained the goods from the wrongful taker. Barrett v. Warren, 3 Hill, 348 ; Nash v. Kosher, 19 Wend. 431 ; Marshall v. Davis, 1 id. 109. It has been held that a defendant cannot be made liable, either in trespass or in any other form of action, for simply receiving the goods of another, wrongfully delivered to him by the person in actual possession, unless he afterward does some act amounting to a conversion or asportation. Dudley v. Hawley, 40 Barb. 397. See Rogers v. Weir, 34 IST. T. 463, 470. But it has been held that if goods, are wrongfully taken by A., and they afterward come into the posses- sion of B., he will be considered as much a wrong-doer as A., unless he proves affirmatively that he came into possession of such goods in good faith, and for a lawful purpose. Tollman v. Turch, 26 Barb. 167. In the absence of such proof, no demand is necessary before bringing the action. lb. And see Fly v. Ehle, 3 N. Y. 506. Where the taking is wrongful, and an action of trespass could be maintained for the taking, no demand will be necessary before bring- ing an action of replevin. Pierce v. Van Dyke, 6 Hill, 613 ; Stillman ACTIONS FOE TORTS OE WEONGS. 635 Replevin — For what property. V. Squire, 1 Denio, 327; Gummingsy. Forcf, 3 Hill, 282 ; Zachrisson V. Ahman, 2 Sandf. 68. But where the taking was not wrongful, and the action is founded upon a wrongful detention of the property, a demand must be made before replevin can be maintained. lb. ; Barrett v. Warren, 3 Hill, 348; Fuller Y. Lewis, Z Ahh. 383; S. C, 13 How. 219; Jlowell v. Kroose, 2 Abb. 167; S. C, 4 E. D. Smith, 357 ; Treat v. Eathorn, 3 Hun, 646 ; Rawley v. Brown, 18 id. 456 ; Twlnam v. Swart, 4 Lans. 263 ; Stevens v. Hyde, 32 Barb. 171. It cannot be true that a defendant wrongfully detains a chattel from the plaintiff unless the latter has a general or special property in the chattel, and the right of immediate possession. Soofield v. Whitelegge, 49 IS". Y. 259. Before replevin can be maintained the plaintiff must prove that the legal title to the property is in himself, or that he has a special property in it with a right to the possession of it at the time of com- mencing the action. Dodworth v. Jones, 4 Duer, 202 ; Tuslca v. O'Brien, 68 E". Y. 446. For what property. The Code of Civil Procedure, in creating a substitute for the action of replevin, gives an action for the recovery of a chattel, that term being intended to embrace every description of personal property which is capable of being wrongfully taken and de- tained. It is not always easy to determine whether an article is to be con- sidered personal property, or a part of the realty. The subject has already been somewhat discussed. Ante, 226 to 239, and 273 to 284. It would be sufEcient to show that the statute did not authorize the taking of any thing but personal property ; for a justice's court cannot take cognizance of any action or subject-matter, unless jurisdiction is conferred by the statute. At the common law this action did not lie for any thing but per- sonal chattels ; and therefore it would not lie for trees growing ; F. N. B. 68 ; nor for things fixed to the freehold. Dalton v. Whittem, 3 Ad. & El. (]Sr. S.) 961 ; Darly v. Harris, 1 id. 895 ; ante, 226 to 239. Nor will it lie for animals feroe natures, unless they have been re- claimed. Ante, 470, etc. But whenever the plaintiff is the owner of any personal property for which he might maintain trespass for its taking, he may also, as a general rule, maintain replevin for its re- covery. The statute contemplates that the subject of an action of replevin shall have some value as property, and therefore the action will not lie for a check made by the plaintiff after it has been presented to and paid 636 ACTIONS FOE TORTS OE WEONGS. Replevin for property taken by virtue of a tax, fine, aaseBsment, etc. by the drawee, and returned as a voucher to the maker. Barnett v. Selling, 70 K Y. 492; S. C, 54 How. 118. Nor will the action lie in favor of a principal to recover from his agent the unissued negotiable obligation of theprincipal. Western R. R. Go. v. Bayne, 11 Hun, 166. Where the title to a chattel has been transferred to a person after it has been wrongfully taken, or while it is wrongfully detained, the transferee may maintain an action to recover it, with or without dam- ages sustained by the taking, withholding or detention, in any case where, except for the transfer, such an action might be maintained by the per- son from or through whom the plaintiff derives title, but not otherwise. Code of Civil Procedure, § 1692. Yol. I, 18. Property taken by virtue of a tax, fine, assessment, or execu- tion, etc. An action to recover a chattel cannot be maintained where the chattel was taken by virtue of a warrant against the plaintiff for the collection of a tax, assessment or fine, issued in pursuance of a statute of the State, or the United States, unless the taking was im- lawful by reason of defects in the process, or for some other cause, or unless the detention is unlawful by reason of the facts occiirring since the taking. Code of Civil Procedure, §§ 1690, 1695; Yol. I, 18, 19. So the action cannot be maintained to recover a chattel which was seized by virtue of an execution or a warrant of attachment against the property of the plaintiff, unless it was legally exempt from such seizure, or unless by reason of facts occurring since its seizure, its de- tention is unlawful. lb. Nor can the action be maintained where the chattel was seized by virtue of an execution, or warrant of attachment, against a person other than the plaintiff, and at the time of the seizure, the plaintiff had not the right to reduce it into his possession. lb. If a tax collector illegally seizes the property of A. to satisfy the tax of B., A. can maintain an action of replevin for its recovery. Lake Shore dh Michigan Southern Ry. Co. v. Roach, 80 N. Y. 339 ; Dubois v. Welster, 7 Hun, 371 ; Hallock v. RuTnsey, 22 id. 89. But if a warrant for the collection of a tax or assessment, pursuant to a statute of this State, on its face authorizes the officer to collect the tax or assessment, replevin will not lie for property taken by virtue of the warrant, although the warrant may have been issued erroneously or irregularly. Troy & Lansingburgh R. R. Co. v. Kane, 72 N. Y. 614 ; Hudler v. Golden, 36 id. 446 ; S. C, 2 Trans. App. 316. And see O'Reilly v. Oood, 42 Barb. 521. Where the property of a stranger is illegally taken to satisfy a tax against another person, the property is not taken by virtue of a war- rant for the collection of a tax, in pursuance of any statute of this State. ACTIONS FOE TORTS OE WEONGS. 637 Keplevin for property taken by virtue of a tax, fine, assessment, etc. Dubois V. Webster, 7 Hun, 371 ; Lake Shore dc Michigan Southern By. Go. V. Roach, 80 N. Y. 339. A town collector may seize not only the goods and chattels of the person taxed, but any goods and chattels in his possession, and no claim of property by any other person can prevent a sale, nor can such third person maintain replevin. Sheldon v. Vam, BuskirTc, 2 'N. Y. 473. To bring a case within the provisions of the statute, forbidding a re- plevin in the case of property taken by virtue of a tax, assessment or line, the property seized must be either the property of the person assessed, or the goods must be actually in the possession of such per- son. StocTcweU V. Veitoh, 15 Abb. 412. If goods are consigned to a jRrm for sale by the owner, and a tax is as- sessed against one of the members of the firm , and an officer with a tax war- rant seizes the goods which are in the possession of a warehou seman , where they were placed by the firm, an action of replevin may be maintained by the true owner, against the officer, for the recovery of the property. lb. And, notwithstanding the statute, before cited, the rightful pos- sessor of goods which are unlawfully seized and taken from his agent's possession, under a warrant against another person, for the non-payment of taxes, may prosecute an action for replevin to recover the possession of such goods. lb. In those cases which fall within the provisions of the statute, for- bidding a replevin of goods seized for a tax, fine or assessment, no action of replevin can be maintained ; but, as has just been seen, the case must clearly fall within the statute, or the action can be maintained. And where an attachment or execution is levied upon the goods of the plaintiff, which merely happen to be in the actual possession of the defendant in the execution, at the time of seizure, this will not prevent the real owner from maintaining replevin for his goods, either against the officer who took them, or against the plaintiff in the process, wlio directed such taking. ThoTnpson v. Button, 14 Johns. 84 ; Judd v. Fox, 9 Cow. 259 ; Clarh v. Shinner, 20 Johns. 465 ; Aliens, Crary, 10 Wend. 349; Fondas. Van Rome, 15 id. 631; Stewart \. Wells, 6 Barb. 79 ; JYeff v. Thompson, 8 id. 213 ; Marsh v. Backus, 16 id. 483. So, if the judgment or determination on which the process was issued was void for want of jurisdiction to pronounce it, replevin lies for the property taken by virtue of such process. Mills V. Martin, 19 Johns. 7. It is otherwise, however, when the process was issued upon proceedings, or upon a judgment, which was merely irregular, but not void. People v. Albany Com. Fleas, 7 Wend. 485. The object of the legislature in preventing a replevin in the case 638 ACTIONS FOE TORTS OR WRONGS. When replevin does not lie. of taking property for a tax, assessment, etc., was, no doubt, to prevent delay in collecting the money ; and if any error or irregularity occurs in the proceedings, the complaining party must resort to some other form of action. lb. But the reason of the rule does not apply in the case of individuals, where one party takes, or directs an officer to take, the property of one person to pay the debt or judgment of another ; and for that reason an action of replevin will lie in such cases by the true owner of the property, to recover its possession from the officer, or from the plaintiff in the process, who has directed its seizure. Where goods and chattels have been taken by virtue of a justice's attachment, and they are left by the constable In the hands of a de- positary, an action of replevin will not lie in favor of such defendant in the attachment against the depositary, unless the goods taken are exempt from an attachment or execution. Keyser v. Waterbury, 1 Barb. 650. Neither would the action lie against the constable. lb. And the facts that the defendant in the attachment action has appealed from the judgment to the County Court, and that a proper certificate has been served upon the constable holding the execution will not make any difference. lb. So, replevin does not lie for property taken by virtue of a warrant issued by the collection of a fine imposed by a coart martial ; for the court cannot inquire into the regularity of the proceedings upon which the warrant was issued. People v. Albany Com. Pleas, 7 Wend. 485. And if the property is unlawfully taken, as where the property of a society is taken upon a warrant issued to collect a fine against one of its members, replevin will not lie, because the statute has forbidden a re- sort to that remedy, but any other legal action may be maintained as trespass or trover. lb. When the action does not lie. It has, already been seen when the action will not lie for property taken for a tax, assessment or fine, etc. Ante, 636. But there are some other instances in which this action cannot be maintained. To maintain the action the plaintiff must show a right to have the property delivered to him at the time of commenc- ing his action, and of issuing the replevin process, and, therefore, the action will not lie in a case in which the property was originally wrong- fully taken by an officer, but where he had levied upon the property by virtue of a legal execution before the action of replevin was brought against him. Sharp v. Whittenhall, 3 Hill, 576. So the action cannot be maintained against a receiptor of goods, where he took them from a constable or a sheriff who had wrongfully taken them, if the receiptor took them at the request of the owner, who was the defendant in the ACTIONS FOR TORTS OR WRONGS. 639 When replevin does not lie. execution, notwithstanding replevin could have been originally main- tained against the officer for his wrongful taking. Chapman v. Andrews, 3 Wend. 240. So a defendant in a replevin suit cannot maintain replevin to recover the possession again. He is confined to the remedy given to the statute, and if he fails to comply with its requirements, he must await the issue of the action. Edgerton v. Boss, 6 Abb. 189 ; Morris v. De Witt, 5 Wend. Yl. So, where the owner of land is wrongfully ousted, and the disseizor continues in the possession and occupation of the land, followed by a cutting and removal of the crops, though they were sown by the owner, yet replevin will not lie for the crops. J)e MoU v. Hagerman, 8 Cow. 220. His remedy is by ejectment to recover the possession, and for the recovery of the mesne profits, or by an action of trespass for a breach of his close. lb. Where a party is in possession of land, claiming adversely to all others, and he sells to a third party hay cut therefrom during such occupancy, the legal title to the hay passes to his vendee, as against a party who claims title to the premises but who is not in possession of them. Stookwell v. Phelps, 34 N. T. 363. Although the claimant who is out of possession is the true owner of the land, he must regain legal possession, by ejectment or otherwise, before he can maintain re- plevin for the crops which were cut by the party then in possession ; and if he brings replevin for the hay against the purchaser from the possessor, before regaining possession, he will fail in the action, since replevin will not lie for the unlawful taking, unless trespass could be maintained, and that action will only lie for an injury to land when tlie plaintiff was in possession at-the time of the injury. lb. See Samson V. Base, 65 K T. 411 ; Van Mten v. Currier, 4 Abb. Ct. App. 475 ; S. C, 3 Keyes, 329. So, one partner cannot maintain replevin against another partner for the partnership property. Azel v. Betz, 2 E. D. Smith, 188. Nor does the action lie in favor of one tenant in common against his co- tenant, or his co-tenant's bailee. Russell v. Allen, 13 N". T. 173 ; Bavis V. Lottioh, 46 id. 393 ; Hart v. Fitzgerald, 2 Mass. 509 ; Walker V. Spring, 5 Hun, 107. So no recovery can be had in replevin for property of which the defendant never had possession, nor where the legal title is in the defendant, he holding it as trustee for the plaintiff. Wheeler v. Allen, 51 N". T. 37. ISTor can the action be maintained against a freight agent of a railroad company for a refusal to deliver freight to the consignees until the charges thereon have been paid, where the agent makes no claim to, and has no possession or control of 640 ACTIONS FOR TORTS OR WRONGS. When replevin does not lie. the property except as the agent or servant of the company. McDougall V. Travis, 24 Hun, 590. So, where the property is lent to B. by A., who afterward sells it to C, who then sells it to D., though the property has all the time re- mained in the possession of B., no action of replevin can be maintained by D. against B., for an unlawful detention of the property, without proof of a demand by the plaintiff himself, or by some one authorized by him, nor without notice to B. that D. has acquired the title to the property. Wilson v. Cook, 3 E. D. Smith, 252. Before the Revised Statutes, an action of replevin could not have been maintained, if the taking was lawful, but the detention was unlaw- ful. Marshall v. Davis, 1 Wend. 109. But, as the law now stands, the action lies for a wrongful detention, even though the taking were lawful. In one case it appeared that calicoes were furnished by the plaintiff to A., who printed them under an agreement with the plaintiff that the goods were to be sold, and that the proceeds, after reimbursing the plaintiff's advances and commissions and the original cost of the cloth, were to be paid to A. While the goods were in the hands of a factor, for sale, the sheriff, having an attachment against A., served notice thereof on the factor, and required of him a certificate of the advances for which the factor claimed a lien, and left them in his pos- session, and he sold them. It was held, that if it were assumed that the general property in the goods was in the plaintiff, there was not such an assumption of control over the goods by the sheriff as to render him liable as a trespasser; and also, that the plaintiff could not maintain replevin because the factor had a right of possession, with a lien for his advances. Wood v. Orser, 25 N. Y. 348, 351. " The decision in the last case was mainly put upon the ground that the goods in question were in the possession of the plaintiff's factors who were entitled to hold them for their advances. In such a case, the plaintiff was not enti- tled to the immediate possession of the goods, and, therefore, replevin could not be maintained. But it is not merely in these cases in which a lien by a third person is a defense ; for it is held by numerous cases, that it is always a good defense in replevin, for the defendant to show that the title to the property is in a third person, and that he is entitled to the possession ; and this is the rule, although the defendant does not make any claim under such third person, nor in any manner connect himself with such title. Mochwell v. Saunders, 19 Barb. 473; IngrahainY. Hammond, ACTIONS FOR TORTS OR WRONGS. 641 Wlien replevin does not lie. 1 Hill, 353'; Anstioe t. Holmes, 3 Denio, 244. See Stowell v. Otis, 71 N. Y. 36 ; Code of Civil Procedure, § 1720 ; id., § 1723. In relation to a demand before bringing an action, a few words will suffice. Whenever the defendant has wrongfully and unlawfully taken the property, so that an action of trespass could be maintained for the wrongful taking, there no demand is necessary before suit brouglit. But, on the other hand, whenever the defendant came law- fully into possession of the property, and the detention alone is claimed to be unlawful, there a demand must be made, before commencing the action. Where the property was originally taken wrongfully, and it has been transferred by the wrong-doer to an innocent purchaser, for value, a demand is necessary before an action will lie against such innocent purchaser. The rule is the same where the purchase was made in good faith at a sale under an execution levied on goods in possession of the judgment debtor. Eawley v. Brown, 18 Hun, 466. And, although it is said that, in such a case, the innocent purchaser must show affirmatively that he purchased innocently before there need be proof of a demand, yet it is always the safest rule to prove the demand in the first instance. Ante, 634, 635. And in any event, a demand is indis- pensable, if the proof shows that the defendant purchased innocently, or that he came lawfully into possession of the property for a just and legal purpose. The cases are conflicting upon the question, whether replevin can be maintained in those cases in which the defendant has. wrongfully dis- posed of the property to another person before the action is com- menced. That the action will lie is decided in the following cases, viz. : Brockway v. Burnap, 16 Barb. 309 ; reversing S. C, 12 id. 347 ; Van Neste v. Conover, 20 id. 547 ; S. C, 8 id;.. 509 j Savage v. Per- kins, 11 How. 17 ; Drake v. Wakefield, id. 106 ; NtGhds v. Michael, 23 N. Y. 269, 271, opinion ; Ward v., Woodhurn^ 27 Barb. 353, opinion ; Gary v. Hotailing, 1 Hill, 311 ;■ Allen v. Crary, 10 Wend. 349 ; Boss v. Cassidy, 27 How. 416 ;, Barnett v.. Selling, 70 N. Y. 492 ; S. C, 54 How. 118; Mlis v. Lersner, 48, Barb. 539. That the action will not lie is maintained in Roberts v. Bandel, 3 Sandf . 707 ; Elwood v. Smith, 9 Haw. 529 ; Beimer v. Nagel, 1 E. D. Smith, 256 ; Merrick v. Suydam^ 1 Code R. (N. S.) 212. But these cases are opposed to the current- af authority, and must be considered as overruled. Although the defendant is not in the actual possession of goods and chaittels, vet, if he is in the constructive possession of them at the time 81 642 ACTIONS FOE TORTS OE WE0:N'GS. When replevin does not lie. of the demand and refusal to deliver them, this will be sufficient to sustain the action. Latimer v. Wheeler, 30 -Barb. 485. So, where the original taking was wrongful, and the defendant parted with the pos- session of the property after demand and refusal, this is sufficient to sustain the action. Drake v. Wakefield, 11 How. 106. And if the defendant parts with the goods wrongfully or fraudulently, even though before the action is brought, that will not defeat the action. Brock- way V. Burnap, 16 Barb. 309; Savage v. Perkins, 11 How. 17; Nichols V. Michael, 23 N. Y. 269. But this action cannot be maintained where the defendant offered, before the commencement of the action, to restore the property uncon- ditionally, although he did not offer to pay damages for the detention. Samage v. Perkins, 11 How. 23. Nor can it be maintained, where the defendant never had possession or control pf the property. Elwood v. Smith, 9 How. 529 ; Latimer v. Wheeler, 30 Barb. 485 ; Wheeler v. Allen, 51 N. Y. 37. After an action of replevin has been commenced, by the service of a summons, a voluntary taking of the property, not from the defendants themselves, but by the plaintiff s picking it up where he chanced to find it, does not extinguish his right of action. Tracy v. N. 7. da Harlem B. B. Co., 9 Bosw. 396. If it affirmatively appears that a purchaser of goods from a wrong- doer purchased and took them by delivery, in good faith, and with the belief that he would acquire a good title, he will not be liable to the true owner in replevin for a wrongful taking, until he has had an opportiinity to restore them. Millspaugh v. Mitchell, 8 Barb. 333 ; Tollman v. Turck, 26 id. 167 ; Barrett v. Wa/rren, 3 Hill, 348. And see ante, 634. In an action of replevin to recover the possession of specific personal property, or the value thereof, in case a return cannot be had, and for damages, the plaintiff may recover such damages as arise from a depre- ciation of the goods during the wrongful detention by the defendant. Young V. Willett, 8 Bosw. 486 ; Bowley v. Qibhs, 14 Johns. 385 ; Suydam v. Jenkins, 3 Sandf . 614, 644. The Code of Civil Procedure provides that " where the plaintiff recovers a chattel which was injured or otherwise depreciated in value while it was in the possession or under the control of the defendant, under such circumstances that the plaintiff might recover damages for the injury or depreciation in an action brought against the defendant therefor, he may recover the same damages in an action brought as prescribed in this article. In that case he must set forth the facts in his complaint and demand judgment for damages accordingly." Code of Civil Procedure, § 1722. Yol. ACTIONS FOE TORTS OE WEONGS. 643 When replevin does not lie. I, 24, note. See Smith v. Orser, 43 Barb. IST ; Brewster \. SilUman, 38 N. Y. 423. The verdict, or decision, must fix the damages, if any, of the pre- vailing party. Code of Civil Procedure, § 1726. If it awards to the plaintiff a chattel which has not been replevied, or which has been replevied and afterward delivered by the constable to the defendant, or a person not a party, it must also fix the value of the property at the time of the trial. Id. So, if it awards to the defendant a chattel wIi^aIi liaa Ko"" - — levied, and afterward delivered by the constable to i H * ■ • fix the value of the chattel at the time of the **" \ owing cases : iff is the general owner of the chattel, but it was ■^ ' •*; ' doing damage, and its value is greater than the V J^_» >'^"^ • '^^''■'"^^Lr *^® defendant by the injury for which it was ?^>'''''Sr^ i c~v^ damages must be fixed by the verdict, or decision, "^K^^^V^'^ V''^*W^""X» e chattel must not. Code of Civil Procedure, V . ■••b^^^.'^ ^ *'\. ■ intiff is the general owner of the chattel, but the % ' "^^'''J^oA "W "^ V«»- ^^ property in it, and the value of the chattel is 1-^.^fep '^■/■^•"''O ^V.i' ' 'ue of the special property, or the sum charged \ ■'^.'ti i3*J'^' 'vir*- **> reason of the special property, then the value of ^•'^ Ki-*""'l «^ •>* '^' '•- ^^ *^® ^"™ ®*^ chargjsd, must be fixed by the ver- * '^S"^^"" ^' '■ *^® value of the chattel must not. lb. "*■ ■ ■ that section 1726 of the Code of Civil Procedure t^ jHV /St'. ' s *^^ •diet, or decision, shall fix the value of the chattel , oecified in section 1727. The former section, with ipplied to justices' courts, while the latter, contain- '^n . » S) is not. See Code of Civil Procedure, § 2931; \ .*is not to be presumed that the legislature intended to •» '-* '"^ ^ of verdict in a court of record, and another form in i-ecord. Neither is it necessary that the latter section u,^^^^^ lyc uccmjd to apply to justices' courts in order to maintain the rule requiring the value of the special property to be assessed by the jury or justice in the case specified, as it has long been held that where the interest of the party entitled to the possession of personal property is of a limited nature, and it is less than the actual value of the prop- erty replevied, the jury or the justice, in an action of replevin between the actual owner and the party entitled to the possession, should assess the value of the property at such a sum only as wiU be equivalent to the limited interest of the prevailing party. Rhoads v. Woods, 41 644 ACTIONS FOR TORTS OR WRONGS. Actions under the Civil Damage Act. Barb. 471, 476; DeWiU v. Mm-ris, 13 Wend. 496, 499; Russell^. ButterfieU, 21 id. 300. And see Allen v. Judaon, 71 N. T. 77. But, although one has only a special property in a chattel, he may, nevertheless, recover its full value of a person who wrongfully takes or converts it, if such person is not the general owner, or a person acting under his authority. Alt v. Weidenherg, 6 Bosw. 176. Where a constable levies upon property by virtue of an execution, he has a special interest therein, as against the owner, to the amount due upon the execution, including his fees. And if the debtor brings replevin against the officer, and the latter has a verdict in his favor, the jury or the justice should assess the value of the property at that amount. Seaman v. Luce, 23 Barb. 240. Although an absolute title in a stranger is a defense, am,te, 640, yet where the plaintiff proves an equitable interest in the property, with a prima facie right to its possession, and the defendant does not show any privity between himseH and the stranger whose title he sets up, this rule wiU not be applied. Johnson v. Carnley, 10 N. Y. 570. Where a lien is set up as a defense in an action of replevin, the lien must be a legal and sufficient one, or the defense will be unavailable. Moffatt V. Van Doren, 4 Bosw. 609. The practice and proceedings in actions in the nature of replevin will be fully discussed in a subsequent volume. § 21. Actions under the Civil Bamage Act. In the year 1873, the legislature of this State passed an act entitled " An act to suppress in- temperance, pauperism and crime," more generally known as the Civil Damage Act. The object of the act sufficiently appears from its title ; the mode of accomplishing that object is somewhat peculiar. The act provides as follows : " Every husband, wife, child, parent, guardian, employer, or other person who shall be injured in person, or property, or means of support by any intoxicated person, or in conse- quence of the intoxication, habitual or otherwise, of any person, shall have a right of action, in his or her name, against any person or persons who shall, by selling or giving away intoxicating liquors, have caused the intoxication, in whole or in part, of such person or persons ; and any person or persons owning, or renting, or permitting the occupation of any building or premises, and having knowledge that intoxicating liquors are to be sold therein, shall be liable severally or jointly with the person or persons selling or giving intoxicating liquors aforesaid, for all damages sustained and for exemplary damages ; and all damages recovered by a minor under this act shall be paid either to such minor or to his or her parent, guardian or next friend, as the court shall direct • ACTIONS FOR TOETS OR WRONGS. 645 Actions under the Civil Damage Act. and the unlawful sale or giving away of intoxicating liquors shall work a forfeiture of all rights of the lessee or tenant under any lease or con- tract of rent upon the premises." Laws of 1873, chap. 646, § 1. " In any action arising for violations of the provisions of this act, any justice of the peace in the county where the offense is committed shall have jurisdiction to try and determine the same, providing the amount of damages claimed do not exceed $200, in which case and where the dam- ages claimed do not exceed $500, the justice of the peace before whom the action is commenced shall associate with himself any other two justices of the peace in the same county, who shall have jurisdiction to try and determine the same." Id., § 2. " This act shall take effect immediately." Id., § 3. This act has been declared constitutional and valid. Beriholf v. O'lteilly, 74 N. T. 509 ; affirming S. C, 8 Hxm, 16. A civil remedy similar to that provided by the statute quoted exists in Maine, Connecticut, Indiana, New Hampshire, Kansas, Iowa, Michi- gan, "Wisconsin, Illinois and Ohio. In Maine, Connecticut, Indiana and New Hampshire the remedy is limited to cases of illegal sale, but, in the other States named, it extends to all cases. In other respects the statutes are substantially alike. These statutes, in plain language, give a right of action in two classes of cases. In the one case an action is given for direct injui'ies inflicted " by an intoxicated person ; " and in the other, for such damages as may arise " in consequence of the intoxication." King v. Haley, 86 111. 106 ; S. C„ 29 Am. Rep. 14. For example, if an intoxicated person, in flourishing a pistol, shoots and wounds another, the latter has a cause of action against the person causing the intoxication by selling spiritu- ous liquors to the person doing the injury. lb. This action falls under the first class of cases. So, if a person, because of being intoxicated, lies down or falls upon a railroad track, and is unavoidably run over and killed by a passing train of cars, his death is " in consequence of the intoxication," and his widow may maintain an action under this act both against the seller of the liquor which intoxicated him, and the owner of the premises where it was sold, and who leased them for the purposes of such sale, for injury to her means of support. Schroeder v. Crawford, 94 111. 357 ; S. C.j 34 Am. Rep. 236 ; Emory v. Addis, 71 111. 273; Smith v. Beynolds, 8 Hun, 128. This action falls under the second class of cases. Both direct and consequential injuries are plainly included in the remedy given. Volans v. Owen, 74 N. Y. 526 ; Mead v. Stratton, 87 id. 493, 496. In some cases it has been held that where an intoxicated person is 646 ACTIONS FOE TOETS OE WEONGS. Actions under the Civil Damage Act. run over and killed by a train of cars, the intoxication is not the cause of the injury and the seller is not liable. Collier v. Farley, 54 Ind. 559; Bmis v. Justice, 31 Ohio St. 359 S. C, 27 Am. Eep. 514. Upon the same principle it was held that if an intoxicated person, while lying in a wagon driven by another who is also intoxicated, is fatally injured by a barrel falling over him, there can be no recov- ery against the person causing the intoxication. Krach v. Heihna/n, 53 Ind. 526. So it has been held that if an intoxicated person is killed by a person to whom he is using abusive language, the person causing the in- toxication will not be liable to the widow of the deceased under this act. Shugart v. Egan, 83 111. 56 ; S. C, 25 Am. Eep. 359. And in this State it has been held that where the death of a person is caused by intoxication, the person causing the intoxication is not liable under this act to the widow for the damages she has sustained by the loss of her customary support. Broohmire v. Monaghan, 15 Hun, 16 ; Hayes v. Fhelan, 4 id. 733 ; 5 id. 335. See, also, Kirchner v. Myers, 35 Ohio St. 85 ; S. C, 35 Am. Eep. 598. These decisions were based upon a construction of the statute limiting the right of action under it to cases where a right of action would also lie against the intoxicated person. But it has been held that this is not the true construction of the statute. Yolans v. Owen, 74 N". T. 526 ; Quain v. Russell, 8 Hun, 319 ; S. C, 12 id. 376. That the case of a husband having a wife and family dependent upon hiin for support, and who by reason of in- toxication becomes incapacitated to labor, and neglects to provide for them or squanders his substance, and thereby reduces his family to penury and want, is within the act, although the facts would not con- stitute an actionable injury before the statute, and although no action would lie against the intoxicated person. Hill v. Berry, 75 N. T. 229 ; Yolans V. Owen, 74 id. 526 ; Quain v. Mussell, 8 Hun, 319 ; 12 id. 376. And it is also held that a widow may maintain an action for loss of support from the death of her husband, against the person who sold him liquor, causing his intoxication and consequent death. Damis V. Standish, 26 Hun, 608 ; Mead v. Stratton, 87 N. T. 493 ; Jackson v. BrooTcins, 5 Hun, 530. See Aldrich v. Sager, 9 id. 539, BocKEs, J. ; Smith v. Reynolds, 8 id. 128 ; Roose v. PerTci/ns, 9 Xeb. 304; S. C, 31 Am. Eep. 409. If an injury results to a person in con- sequence of his intoxication which disables him for life, or incapaci- tates him for labor, and for earning a support for his family, the case is undoubtedly within the meaning and intent of the statute ; and a stiU stronger case is presented where death ensues in consequence of the intoxication. The statute was designed to embrace, cover and include ACTIONS FOR TOETS OR WRONGS. 647 Actions under the Civil Damage Act. all injuries produced by the intoxicatiou, and which legitimately re- sult from it. If it is an injury which can be repaired by damages, as that arising from a temporary disability, or one where death comes as a natu- ral and legitimate consequence of the intoxication, a case is made out within the statute' which entitles the injured party to recover such dam- ages. Mead v. Stratton, 87 N. Y. 493. The liability does not depend upon a finding by the court or jury that the intoxicating liquor was the immediate cause of death. If it was the jproximate cause, it cre- ates a liability for the resulting damages. Damis v. Standish, 26 Hun, 608. " It is safe to say, that if the proof in any case under this law shows that the intoxication was to such an extent as to deprive the man of the normal use of his faculties, either physical or mental, so that he is rendered incapable of caring for himself and of protecting him- self from the results of accidents or circumstances to which he is sub- jected, and by reason of such deprivation of his natural powers of body or of mind his death is produced by his inability to protect or defend himself against circumstances which threaten his life, it may be said, in those cases, in general terms, that such intoxication is the proxi- mate and direct cause of death." Id. 611, 612. It is sufficient to give the right of action that the wife, through the intoxication of her husband, has been injured in her means of support within the meaning of the statute. Quain v. jRussell, 8 Hun, 319. The words " means of support," in the first section of the act quoted, are new in legal enactments, and have no settled legal meaning. The court of last resort in this State, while declining to define in advance the cases to which the words apply, has expressed the opinion that where in- jury to " means of support " is the gravamen of the action, the plaintiff, in order to maintain the action, must show that by, or in consequence of the intoxication, or the acts of the intoxicated person, his accustomed means of maintenance have been cut off or curtailed, or that he has been reduced to a state of dependence by being deprived of the support which he had before enjoyed; and that diminution of income, or loss of property, does not constitute an injury to means of support within the fair intend- ment of the statute, if the plaintiff, notwithstanding, has adequate means of maintenance from accumulated capital or property, or if his remaining income is sufficient for his support. Volam^ v. Owen, 74 N. Y. 526. If the husband, when sober, is physically incapable of performing any labor or work, or of attending to any business or profession, or was of such indolent and shiftless habits that he in fact made his wife support him, then, perhaps, his intoxication might not take away any of her resources in this particular, and the wife would suffer no damage from 648 ACTIONS EOE TOETS OE "WEONGS. Actions under the Civil Damage Act. his intoxication. SchTieider v. Hosier, 21 Ohio St. 102 ; Wightman v. Devere, 33 Wis. 570. As to what constitutes an injury to the person within the meaning of this act is not clear. A wife is "injured in person" when injured in health by- care and watching with a husband made'sict by intoxicar tion. Wightman v. Devere, 33 Wis. 570. But it is also held that the anxiety, mortification and sorrow of the wife, and her loss of her husband's society form no item of damage in an action under the statute ; Koerner v. Oherly, 56 Ind. 284 ; S. C, 26 Am. Eep. 34 ; and that threatening language and vulgar conduct on the part of the hus- band, not impairing the health of the wife, furnish no ground for recovery. Calloway v. Laydon, 47 Iowa, 456 ; S. C, 29 Am. Eep. 489. Where a wife was forced to abandon her husband's house through fear of her husband, who was delirious and dangerous in consequence of intoxication, this, in one case, was held not to be within the statute, Mulford V. Clewell, 21 Ohio St. 191, and in another was held to be sufficient to give a right of action. Peterson v. Knoble, 35 Wis. 80. Where a married woman is injured by being thrown from a wagon, recklessly driven by an intoxicated person, her husband may recover, under the statute, for the loss of her services, medical attendance, nursing, etc., from the person who sold the liquor causing the intoxica- tion of the driver. Aldrich v. Soger, 9 Hun, 537. So, where a span of horses are over-driven and injured by a person while in a state of intoxication, an action lies in behalf of their owner to recover the dam- ages sustained against the person selling the liquor causing the intoxi- cation, or the owner of the premises where the liquor was sold, and who leased them with knowledge that they were to be used for the purpose of such sales. Bertholfy. O'Reilly, 74 N. Y. 509. The liability of the lessor of premises for the result of intoxication caused by sales of liquor by his lessee is purely statutory. This liability does not depend upon the nature of the act of the lessee, but exists irrespective of the question whether the sale was authorized or un- authorized by the license laws of the State. Nor does the liability de- pend upon any question of negligence of the landlord or lessor in the selection of the tenant, or of the tenant in selling the liquor. Although the person to whom the liquor is sold is at the time apparently a man of sober habits, and, so far as the vendor knows, one whose appetite for strong drink is habitually controlled by his reason and judgment, yet if it turns out that the liquor sold causes or contributes to the in- toxication of the person to whom the sale or gift is made, under the influence of which he commits an injury to person or property, the ACTIONS rOE TORTS OR WRONGS. 649 Actions under the Civil Damage Act. seller and his landlord are by the act made jointly and severally re- sponsible. The element of care or diligence on the part of the seller or landlord does not enter into the question of liability ; and there is no way by which the owner of real property can escape possible liability for the result of intoxication where he leases or permits the occupation of his premises, with the knowledge that the sale of liquors is to be carried on on the premises, whether alone or in connection with other merchandise, or whether they are sold to be drank on the premises, or to be carried away and used elsewhere. Bertholf v. O^Reilly, 74 N. Y. 509. The permission to occupy, with knowledge that intoxicating liquors are to be sold on the premises, constitutes the basis of the liability of the owner of the premises imposed by the act. Neither the permission nor the knowledge are to be presumed or inferred, but should be established by clear and satisfactory proof. Mead v. Stratton, 8 Him, 148 ; S. C, affirmed, 87 K. T. 493. See State v. BalUngall, 42 Iowa, 87 ; State v. AbraTiam, 6 Ind. 117. While a, joint action may be maintained against both landlord and tenant for injuries resulting from intoxication caused by the sale of liquor by the tenant, subject to the rules above stated, it will not lie against two or more persons who separately, at different times and at different places, have sold liquor to the same person, each quantity of liquor sold having contributed to produce the intoxication that caused the injury. JaoTcson v. BrooKns, 5 Hun, 530 ; Morenus v. Crawford, 15 id. 45. But see Fountain v. Drajper, 49 Ind. 449 ; La France v. Krayer, 42 Iowa, 143 ; Badge v. Hughes, 53 N. Y. 618 ; Emory v. Addis, 71 111. 273 ; Kearney v. Fitzgerald, 43 Iowa, 580. The statute of 1873 does not in terras give a right to maintain a joint action against several persons who have each contributed to the particular intoxication causing the injury ; and whether separate actions could be maintained successively against each of such persons for his separate instrumentality in producing such intoxication has not been directly decided in this State. Under the Ohio statute giving the injured party a right of action " in his or her own name, severally or jointly against any person or persons who shall, by giving or selling intoxicating liquors, have caused the intoxication, in whole or in part, of such person or persons," it is held that if two sellers, though wholly independent of each other, contributed by their unlawful sales to the same intoxication, whether of long or short duration, a wife injured thereby in her means of sup- port can recover damages for the whole injury in a joint action against them ; and she can recover against either or both of them in a separate action or actions, the same amount of damages, though she could have 8ii 650 ACTIONS FOR TOETS OR WRONGS. Actions under the Civil Damage Act. but one satisfaction. See Kirchner v. Myers, 35 Ohio St. 85 ; S. 0., 35 Am. Rep. 598 ; ETnory v. Addis, 71 111. 273 ; Kearney v. Fitzgerald, 43 Iowa, 580. But where separate actions are brought by the same person against different defendants, the fact that the plaintiff in one case receives a sum of money in satisfaction and discharge of her cause of action is no defense in the other cases, if in fact the intoxications were separate and distinct. Miller v. Patterson, 31 Ohio St. 419. The statute gives a right of action against " any person or persons, who shall by selling," etc., have caused the intoxication. This statute embraces equally any person who actually makes the sale, whether he is the owner, clerk, son or servant of such owner. Worley v. Spv/rgeon, 38 Iowa, 465. And the principal is liable, although the act of the subordinate is without the knowledge or authority of his employer, or even in violation of his instructions. Smith v. Reynolds, 8 Hun, 128 ; Peterson v. Kndble, 35 Wis. 80. While the legislature doubtless intended to give a single right of action and single damages to one person, the language of the statute is so broad as to give a right of action to a wife, and to each of her cliil- dren for the damages they have separately sustained by reason of the intoxication of the husband and father. Therefore, in an action by the wife under the statute, the damages she may recover will be limited to her proportionate share of the entire damages proved to have been caused by the intoxication of the husband, if there are others depend- ■ing upon him for support who would also be entitled to maintain a similar action. Franklin v. Schemerhorn, 8 Hun, 112. A jury in this class of cases have power to award exemplary damages, but should award them only where there are circumstances of abuse or aggravation on the part of the vendor of the liquor. lb. See Ganssly v. PerTcins, 30 Mich. 492. After proof of damage has been given, evidence of notice not to sell may be given to enhance the dam- ages. MoFvoy V. Humphrey, 77 111. 388 ; Kellermam, v. Arnold, 71 id. 632 ; Schneider v. Rosier, 21 Ohio St. 98. On the other hand the defendant may prove any fact tending to mitigate damages, as for example, that the sale was made in violation of the instructions of the defendant ; Kreiter v. Nichols, 28 Mich. 496 ; that the liquor was pro- cured by artifice ; Bates v. Damis, 76 111. 222 ; or that some of the liquor causing the intoxication was procured elsewhere ; FramMvn v. Schemerhorn, 8 Hun, 115 ; Hemmens v. Bentley, 32 Mich. 89 ; or that the wife purchased liquors for or drank with her husband. See Kearney v. Fitzgerald, 43 Iowa, 580; HacTcettY. Smelsley, 77 III. 109, PART IV. THE LAW EELATING TO DEFENSES. CHAPTER I. GENEEAL CONSIDERATIONS. In stating the law relative to defenses, nothing more will be attempted here than to state some of those general rules of law which are applicable to defenses in actions in justices' courts. The practice and the rules of pleading will be explained in a subsequent volume of this work. There is one branch of defenses, however, which needs explanation in this place, since it naturally falls within the law of defenses, as well as within the rules of practice. And for that reason a brief notice will be taken of those defenses which may be interposed under a general or a special denial of the allegations in the complaint. Section 1. General denial. In actions in justices' courts, a general de- nial is so generally interposed that it may be considered the usual, if not the invariable, defense in these courts. There are, of course, other affirmative defenses introduced when they exist ; but a general denial almost invariably precedes any other defense where the pleadings of the parties are unverified. Where a verified complaint is served ■with. the summons, and the facts constituting a cause of action are truly stated therein, a general denial cannot, of course, be interposed, and the defendant must rely upon such other defenses as will defeat the plaint- iff's case, or reduce the amount of his recovery. The legal effect of a general denial is to require the plaintiff to prove every fact which is essential to his cause of action. It puts in issue every material allegation in the complaint, and therefore imposes upon the plaintiff the burden of substantiating every part of his case by legal, competent evidence. And the effect of the denial is not confined merely to putting in issue all the facts which are directly alleged in the 652 DEFENSES. Qeneral denial. complaint, for it also puts in issue every application or conclusion of law which arises out of the facts stated therein. PrmdleY. Caruthers, 15 E". T. 425, 429, opinion ; Academy of Music v. Hachett, 2 Hilt. 218 ; Bellinger v. Craigue, 31 Barb. 534 ; Mach v. Burt, 5 Hun, 28; Boomer r. Koon, 6 id. 645. See Blair r. Bartlett, 75 K Y. 150, 155. A denial need not necessarily extend to all the allegations contained in the complaint, but may apply specifically to one or more of them, and, in case of a verified answer to a verified complaint, may be m the form of a general or specific denial of any knowledge or information sufficient to form a belief of the material allegations of the complaint. Code of Civil Procedure, § 2938 ; Laws of 1881, chap. 414, § 2. But it must be remembered that a denial of knowledge or information sufficient to form a belief is not authorized by the Code of Civil Pro- cedure, and is admissible only in case of a verified answer to a verified complaint in an action arising on contract for the recovery of money only, or on an accoimt. See Code of Civil Procedure, § 2938 ; Laws of 1881, chap. 414; Dennison v. Carnahan, 1 E. D. Smith, 144; Yol. I, 80, 178. No denial need be interposed if the defendant is willing or desirous of determining his rights under an affirmative defense alone. The rules relating to such a defense will be explained in the title " Pleadings." In pleading a denial the form prescribed by the statute must be ob- served. A party is permitted to deny all or any of the facts alleged in the complaint, and the denial will put all or a part of those facts in issue, according as the denial is general or special. A denial that the party has any information as to the truth of the facts alleged in the complaint is not a proper or sufficient denial in a justice's court ; and 80 as to a denial of information and belief, or of an allegation of ignor- ance in relation thereto. A mere denial of a conclusion of law, without controverting the facts from which that conclusion legitimately flows, will be a nullity. De Sanies v. Searle, 11 How. 477 ; Brown v. Itychman, 12 id. 313; Witherspoon v. Vam, Dolar, 15 id. 266; Fosdich V. Oroff, 22 id. 158 ; Brake v. Cochroft, 4 E. D. Smith, 34 ; Saunders v. Chamberlain, 13 Hun, 568, 570 ; Plant v. Schuyler, 4 Abb. (N. S.) 146; S. C, 7 Bob. 271 ; White v. Brake, 3 Abb. N. C. 133 ; Turnlull v. Oslorn, 12 Abb. (N. S.) 200. But where the allegations in the complaint are mere allegations of a conclusion of law, a denial of such allegations will be both admissible and sufficient. Morrow v. Cougan, 3 Abb. 328 ; McKnight v. Hunt, 3 Duer, 615 ; Davis v. Hoppoch, 6 id. 254 ; Walrod v. Bennett, 6 DEFENSES. 653 General denial. Barb. 144. See Mayor v. James, 17 Hun, 588. See also Molntyre v. Ogden, id. 604. A denial of immaterial allegations in the complaint will be wholly unnecessary. Sam,ds v. St. John, 23 How. 140 ; Fry v. Bennett, 5 Sandf. 54 ; Parshall v. Tillou, 13 How. Y, 8. Nor it is necessary to interpose a denial to allegations which the plaintiff must prove under any circumstances, as for instance, the amount of damages. Connoss v. Meir, 2 E. D. Smith, 314 ; Oilbert v. Rounds, 14 How. 46 ; Moloney V. Dows, 15 id. 261, 265 ; McKenzie v. Fa/rrell, 4 Bosw. 192, 202 ; Thompson v. JJumley, Y Daly, 74. An allegation in a pleading, of an amount of unliquidated damages or a value, is not to be taken as true by an omission to deny it, except to sustain jurisdiction or show the performance of a contract requiring such value, or the like. Stua/rt v. Binsse, 10 Bosw. 436, 446. In replevin, however, the value of the property as alleged by the plaintiff is a traversable fact. Archer v. Boudinet, 1 Code K. (N. S.) 372. A denial of fraud which is alleged in a complaint will not amount to a defense, when there is no denial of the facts from which such fraud may be legally inferred. Robinson v. Stewart, 10 N. T. 189 ; Churchill V. Bennett, 8 How. 309; Dykers v. Woodward, 7 id. 313. So, if the answer admits the facts, but merely denies the legal conclusion of fraud, or other legal inference arising from such admitted facts, the de- fense will be unavailing. lb. One of the prominent rules relating to the proofs admissible under a general denial is, that under such a denial the defendant may introduce any evidence which goes to controvert the facts which the plaintiff is bound to establish in order to maintain his action. Andrews v. Bond, 16 Barb. 633, 642. And, therefore, in an action to recover for labor and services, the defendant, under an answer which contains merely a general denial of the complaint, may introduce evidence to show that the work was unskillfully performed and that it was worth less than the amount claimed. Raymond v. Richardson, 4 E. D. Smith, 171. So in an action by a physician or siirgeon to recover for services ren dered in setting a broken limb, the defendant under a general denial may give evidence showing that the plaintiif was guilty of malpractice in rendering the services, and thus defeat a recovery. See Bellinger v. Craigue, 31 Barb. 534; Blair \. Bartlett, 75 N. Y. 150. So in an action by an attorney to recover compensation for his ser- vices, and for disbursements and counsel fees paid by him, the defendant, under a general denial of each and every allegation in the complaint, 654 DEFENSES. Oeneial denial. and denying that he is justly indebted to the plaintiff, may prove any circumstances tending to show that he never was indebted at all, or that he owes less than is claimed. Schermerhorn v. Van Allen, 18 Barb. 29, 31. In the last case cited, the defendant offered to prove that the plaintiff agreed that his costs and fees should depend upon his success in the actions, and that in one of them he was to have $25 of the defendant, in case of failure; but that in the other, he was to have nothing in case the appeal failed ; but this evidence was excluded ; and on appeal, where the judgment was reversed, the court, by Paekee, J., said : " Under a general allegation of indebt- edness, the plaintiff had proved certain services rendered, and their value. It was snrely competent for the defendant, under a denial of such indebtedness, to prove that he never incurred or owed the debt. He had a right to prove that the services were rendered as a gratuity, either as to the whole or in part ; or that the plaintiff himself had fixed a less price for their value than he claimed to recover. The services being proved the defendant might show that they were rendered not for him, bnt on the credit of some other person ; or that the plaintiff himself undertook to run the risk of the litigation. It was not an attempt to show an extinguishment of the alleged indebtedness by payment, release, or otherwise ; but it was an offer to show that such indebtedness never existed. The defendant was at liberty to prove any circumstances tending to show that he was never indebted at all, or that he owed less than was claimed. Suppose, under such a general complaint, a merchant had proved he had sold ten yards of cloth worth $5 a yard ; can it be doubted but the defendant would have been at liberty to prove that when he sold it, he fixed the price at $3 a yard, or that he gave it to the defendant, or agreed to look to some other person or friend for his pay ? I have no doubt it would have been competent in this case for the plaintiff to have proved that he had agreed on a certain sum as compensation for the whole or for any por- tion of the services rendered ; and I cannot see why it was not equally the right of the defendant to prove, on his part, an agreement as to the rate of compensation." A general denial is sufficient to authorize a defense under the statute of frauds, as for instance, that the agreement was not to be performed within a year from the time of making it. Amburger v. Marvin, 4 E. D. Smith, 393 ; Little v. Wilson, id. 422. But the defense will not be available unless the contract is denied, or the facts are set up which brings the case within the statute. Duffy v. O^Donovwn, 46 K Y. 223 ; Marston v. 8wett, 66 id. 206 ; S. C, 23 Am. Eep. 43. But it DEFENSES. 655 General denial. is only where the complaint sets forth a contract, and the answer admits that allegation, that the "defendant must plead the statute. Alger v. Johnsm, 4 Hun, 412 ; S. C, 6 Sup. Ct. (T. & 0.) 632. Under a general denial the defendant may show that the contract under which the plaintiff seeks to recover is immoral and against public policy ; Russell v. Bwrton, 66 Barb. 639 ; or, if the action is brought upon a promissory note, that it has been altered since its execution ; Schwarz v. OppoU, 74 N. T. 30Y ; Booth v. Powers, 56 id. 22 ; Boomer v. Koon, 6 Him, 645 ; or, if it is brought for goods sold and delivered, that the authority of the agent making the alleged purchase for the defendant had been revoked, and notice of the revocation given to the plaiatifl prior to the sale ; Hier v. Grant, 47 N. T. 278 ; or, that the plaintiff contracted to deliver certain articles of merchandise, and has only delivered a part ; Manning v. Winter, 7 Hun, 482 ; or, that the action was prematurely brought. Mack v. Burt, 5 id. 28. In an action by a common carrier to recover freight, the defendant may show, under a general denial, that the goods carried were destroyed by a failure on the part of the carrier to perform his contract. Bun- ham V. Bower, 77 N. T. 76. There are some cases in which questions have arisen as to the evi- dence admissible under a partial denial of the allegations of the complaint. In an action upon a promissory note, the defendant alleged in his answer that he never gave to the plaintiff" the note declared on ; and this was held to be a denial of the complaint, so far as making a note constitutes a delivery of it, and also of any delivery of the note to the plaintiff. Sawyer v. Warner, 15 Barb. 282. Such a denial amounts to a denial of any indebtedness on the note ; and the defendant is at lib- erty, in support of his side of the issue, and independently of other modes of proof, to prove facts inducing a presumption that no delivery was made, and in that way to overcome the presumption arising from the plaintiff's proof of his possession of the note, and of the signature of the defendant. lb. He is, therefore, entitled to give in evidence any facts calculated to satisfy the jury or the justice, by fair and direct inference, that the note was never delivered by him. Thus, he may introduce evidence which discloses conduct, on the part of the plaintiff, that is whoUy inconsistent with the fact of any indebtedness by the defendant upon the note. lb. Where, in an action upon an agreement for personal services, the only issue raised in an answer by the defendants is, that they did not employ the plaintiff, by themselves or their agents, it is proper to admit proof 656 DEFENSES. AflBrmative defenses. on ttie part of the defendants, which shows payment by the alleged agents, if such evidence is not admitted to prove payment, but to show that the plaintiff considered such agents, and not the defendants as his employers ; provided the payment is made in such a manner as to afford some evidence of the intention of the parties in respect to the question at issue. Gilmore v. Atlantic c& Pacific R. R. Go., 35 Barb. 279. In an action for an injury to property which waa alleged in the com- plaint to have been caused by the negligence of the defendant's agents, an answer which denies every allegation in the complaint puts in issue the defendant's liability, and it is not necessary to aver in the answer that the injury was done by other persons, who were responsible there- for, and not the defendant. Schular v. Hudson River R. R., 38 Barb. 653. And proof of such facts is admissible under a general denial of the complaint. lb. The cases already cited will illustrate the principles which govern in relation to proofs under a general or a special denial, the whole scope and extent of which is to permit the defendant, under a general denial, to prove any facts which will meet and rebut the proofs given by the plaintiff to sustain his case, and to show that the defendant was never liable to an action such as the complaint sets forth. So, under a special denial, the defendant may give in evidence any facts which will meet and rebut any proofs which the plaintiff is bound to introduce to sustain his action^ under the issues made by the denial. But, whenever the defense in any manner becomes affirmative, or is founded upon facts which constitute a defense, even if the plaintiff's allegations in the complaint are taken as true, then an entirely different rule prevails, and the defense must be set up in the answer, or evidence to prove it will not be admissible. The next section will be devoted to a brief notice of the cases as to affirmative defenses. § 2. Affirmative defenses. Whenever the defendant cannot truly or successfully deny the allegations in the complaint, or when the plaintiff's evidence is overwhelmingly strong in support of his complaint, and the defendant insists that he has a legal and sufficient defense not- withstanding the allegations in the complaint are true, the defense so interposed will be an affirmative defense, or one founded upon new matter, and which may be valid and successful even though the facts in the complaint are conceded, or are substantiated by evidence. And whenever the defendant relies upon any defense except merely con- troverting the truth of the plaintiff's evidence, he must, as a general rule, set up such defense in his answer. There are numerous instances in which the plaintiff would be entitled to recover if the allegations in DEFENSES. 657 Affirmative defenses. the complaint were conceded to be true, and no further defense were interposed. But it is equally true that there are many cases in which there are acts, facts and circumstances connected with the facts alleged in the complaint, which, if all truly and fully stated, would show that the plaintiff was not entitled to maintain his action. So, too, it is frequently the ease that a cause of action which was once valid and available has become barred by some subsequent matter or agreement. In all such cases the general and almost invariable rule is, that the defense must be set \ip in the answer to render it available and effectual. The law relating to defenses in general will be discussed in the follow- ing pages. But, before proceeding to that duty, it will be proper to notice some of the cases which show in what cases a defense must be interposed by answer to prevent a waiver of it. Under the old system of pleadings, infancy was available as a defense under the general issue. • Wailing v. Toll, 9 Johns. 141. But it is doubtful whether such a defense would not have to be interposed by answer now. See Van Santvourd's Pleadings, 399, 400, 465, 466. And see Treadwell v. Bruder, 3 E. D. Smith, 59T ; Schermerhorn v. Jenkins, 7 Johns. 373 ; Slocum v. Hooker, 13 Barb. 636. And the cases just cited hold that infancy is not available as a ground of non- suit at the trial, but must be pleaded in abatement, and also that the defense is personal to the defendant, who alone can interpose it, even when he is sued together with adults. Where the defendant relies upon the coverture of a female plaintiff, the defense must be set up in the answer to be available. Dillaye v. Parks, 31 Barb. 132. And when the complaint in an action against a married woman does not disclose the fact of coverture, she must plead the fact in order to avail herself of the defense. Smith v. Dunning, 61 N. T. 249 ; Frackling v. Holland, 53 id. 422. But where the complaint shows that the obligation sued on is that of a married woman, and there is no allegation showing that it was given for any purpose which would make it binding upon her, the complaint does not state a cause of action, and is demurrable. Broome v. Taylor, 76 N. Y. 564. A former re- covery must be pleaded to be available, it cannot be proved under a general denial. Hendricks v. Decker, 35 Barb. 298 ; DaVrymrple v. Hunt, 5 Hun, 111. Recoupment was not admissible under the old system of pleading, unless pleaded or interposed under a notice in the nature of an answer. Ives V. Van Epjps, 22 Wend. 155 ; Van Epps v. Harrison, 5 Hill, 63 ; Barber v. Ease, id. 76 ; Eldridge v. Mather, 2 N. Y. 157 ; Dei/en- dorff V. Gage, 7 Barb. 18. 83 658 DEFENSES. Affirmative defenaes. Recoupment is the setting ofE of one distinct claim against another. Oillespie v. Torrance, 25 N. Y. 306. And it is very clear that such a defense must now be set up in the answer to be available. See Code of Civil Pro., § 2947; Vol. I, 28. The statute of limitations must always be pleaded to be available, as the statute expressly declares that the objection that the action was not commenced within the time limited can be taken only by answer. Code of Civil Pro., § 413 ; Williams v. Willis, 15 Abb. (JST. S.) 11 ; Cot- ton V. Maurer, 3 Hun, 552 ; S. C, 5 Snp. Ct. (T, & C. ) 575. A release presupposes that there once was a good cause of action and it must be pleaded to be available. So an arbitrament and award must be properly pleaded. Gihon v. Levy, 2 Duer, 176. And when this defense is interposed, it must be set out in substance if not in terms so that the court can judge of its validity. lb. To entitle a defendant to insist upon an award as a bar to an action, he must, since the Code, allege it as such in his answer. Brazill v Isham, 12 !N". Y. 9 ; S. C, 1 E. D. Smith, 437. Such a defense is not admissible under a general denial alone. lb. A tender must have been pleaded under the former system of plead- ings, and the rule is the same now under the provisions of the Code. A partial want or failure of consideration cannot be proved under a general denial, but must be set up in the answer, or a notice given of it. EldridgeY. Mather, '2,1^. Y.l^^. So, payment in full or in part must be stated in the answer as a ground of defense, for it cannot be proved under a mere denial of the complaint. MoKyring v. Bull, 16 N. Y. 297 ; Texier v. Gouin, 5 Duer, 389 ; Calkins v. Packer, 21 Barb. 275, 282 ; Grosvenor v. Atlantic Fire Ins. Co., 1 Bosw. 469 ; Morrell v. Irving Fire Ins. Co., 33 N. Y. 429, 443; Bassett v. Lederer, 1 Hun, 274 ; S. C, 3 Sup. Ct. (T. & C. ) 671. If, however, the complaint merely alleges that the defendant is in- debted to the plaintiff in a specified amount for services rendered, being the balance remaining due after sundry payments made by the defend- ant to the plaintiff, without setting forth the value or extent of the ser- vices rendered, the defendant under a general denial may show what payments were made so as to enable the court or jury to determine what is in fact the amount or balance of the defendant's debt. Quin V. Lloyd, 41 ]Sr. Y. 349. A license to enter upon real estate is not available unless pleaded. Haight v. Badgeley, 15 Barb. 499. So of a license to take personal property. Beaty v. Swarthout, 32 id. 293 ; Kissam v. Roberts, 6 Bosw. 154. Such a defense cannot be introduced under a general DEFENSES. 659 Another action pending. denial. lb. So usury must be proved under a defense, setting up the facts which constitute usury. Fay v Grimsteed, 10 Barb. 321 ; Oould V. Segee, 5 Duer, 260 ; Haywood v. Jones, 10 Hun, 500 ; Meohanics' Bank of WiUiamshurgh r. Foster, 4:4: Barb. 87 ; S. C, 29 How. 408; 19 Abb. 47. If, however, the conaplaint is so framed that an answer setting up usury would be no defense, and the plaintiff is permitted to travel outside of the pleadings to establish a cause of action against the defendant, the latter is entitled to the benefit of the defense of usury, or any other defense which the evidence discloses, although such de- fense is not pleaded. Arnold v. Angel, 62 N. T. 508. In all actions for torts it is a general rule that any defense in justi- fication or excuse must be specially pleaded by setting it up in the answer, or it will not be available. 'No such defense is admissible under a mere general denial. Fly v. Fhle, 3 N. Y. 506, 511. In one case the answer simply denied the trespass set forth in the com- plaint ; and the defendant offered on the trial to prove a settlement of the damages, but this was overruled, on the ground that it had not been set up in the answer. Holmes v. Anderson, 18 Barb. 420, 424. In noticing the cases which have been cited, it was not intended to give all the cases, but merely to notice some of those more usually cited in practice. And in giving these, the general principles of affirm- ative defenses, and the necessity of pleading them, will have been sufficiently illustrated for the purpose of a work like this. And, in conclusion of the subject, it may be said generally, that any defense which does not rest entirely in negation, or in matter going strictly in disproof of the plaintiff's case, but which depends, on the contrary, on the proof, in whole or in part, of affirmative matter, it must be set up in the answer to be available. § 8. Another action pending. The remedies which the law has provided were intended to aid every person in the collection of all just claims or demands. And these remedies are obtained by means of an action at law or in equity for that purpose. But, while the law thus favors a party in the prosecution of every just claim, it does not permit its process to be turned into a means of annoyance or op- pression. Where the claims arise upon contract, several separate causes of action may frequently or generally be joined in the same action. So, if the cause of action arises upon a tort, several separate causes of ac- tion may be joined in one action. There are some cases where a party is compelled to sue for all his claims in one action, though in others he may join them all in one action, or he may sue any of them separately, as in torts. But, whatever the rule may be in relation to the joinder 660 DEFENSES. Another actioa pending. of separate claims or causes of action in one suit, it is entirely clear that no plaintiff can maintain several separate actions at the same time for the same claim or cause of action. And it is a general principle that the pendency of one action, for a particular cause of action, is a bar to another action at the same time for that same cause of action. Davis V. Grainger, 3 Johns. 259 ; Lewis v. Moloney, 12 Hun, 207 ; GrosKon v. Lyon, 16 Barb. 461 ; Batzer v. Batzer, 2 Abb. N. C. 461. But the answer is one in abatement of the second action, and not in bar to a right to recover upon the cause of action. Davis v. Grainger, 3 Johns. 259. The pendency of the former suit cannot be given in evidence under a general denial. Percival v. Rickey, 18 Johns. 25T ; White v. Tal- mage, 3 Jones & Sp. 223 ; Wright v. Maseras, 56 Barb. 521. In courts of record the objection may be taken by demurrer if it appears upon the face of the complaint. Code of Civil Pro., § 488 ; Horn- fager v. Hornfager, 6 How. 279 ; Bishop v. Bishop, 7 Eob. 194. But the Code has not made this objection a ground of demurrer in justices' courts, and consequently the objection must be taken by an- swer. See Code of Civil Pro., § 2939 ; Vol. I, 26. To render the plea available it must show that the former action is between the same parties as those in the second action. And, therefore, in an action upon contract against A., an answer that there is another action pending against B. for the same cause of action is not a valid matter in abatement, even though A. and B. are jointly liable. Henry V. Goldney, 15 Mees. & "Wels. 494. In such a case a recovery against B. in the action against him would not be a judgment against A ., and, therefore, he would not be twice vexed by the same action. As to the effect of a former recovery against B. in such a case, see Former Ke- covery. A judgment recovered by one of several joint debtors cannot be pleaded as a defense to a subsequent action against the other joint debtors in respect of the same cause, unless the plea shows that the judgment was recovered on a ground which operated as a discharge of all. Phillips V. Ward, 2 Hurlst. & Colt. 717. But a judgment against one of two joint debtors is a bar to an action against the other ; though the rule is otherwise where the debt is joint and several. King V. Hoare, 13 Mees. & "Wels. 494. In an action of ejectment brought by the heirs at law of a deceased person, the pendency of a prior action, brought by the plaintiffs and the widow of the deceased, to recover two of the lots in question, may be properly set up by the defendant. BitUr V. Worth, 58 N. Y. 627. "Where a party has a valid charge against several debtors, the pendency of an action against one of them DEFENSES. 661 Another action pending. is no defense to an action against another. OridUy v. Bowlcmd, 1 E. D. Smith, 670. And a proceeding under the mechanic's lien law against the owner is no defense to an action against the contractor at the same time. lb. So filing a notice of a claim under that law, and creating a lien upon the building for the materials furnished to the owner, is not such an action as to be a bar to a distinct personal action against him at the same time for the price or value of such materials. Pollock v. JShle, 2 E. D. Smith, 541 ; Maxey v. Larhin, id. 540. But Ogden v. Bodle, 2 Duer, 611, at Special Term in the Superior Court, is opposed to the two preceding decisions at General Term in the Common Pleas. The defense that a former action is still pending between the parties for the same subject-matter will not be avoided by a discontinuance of the former action, unless the discontinuance is perfected by the time that issue is joined in the second action. Swart v. Borst, 17 How. 69 ; Averill v. Patterson, 10 id. 85. In a court of record if the defendant pleads the pendency of a former suit, the plaintiff may discontinue, and his reply of discontinuance will be a good bar to the answer. lb. The plea that another action is pending is an allegation that such other action was pending at the time the action was commenced in which the plea was put in ; and therefore if the prior action was at that time terminated by final judgment upon a demurrer, it was no longer pending, and the plea is not good, although after the commence- ment of the second action, the plaintiffs have taken an appeal from the judgment on demurrer dismissing their complaint in the prior action. Porter v. Kingsbury, 13 Hun, 33. See Owens v. Loomis, 19 id. 606. But see Peck v. Hotchkiss, 52 How. 226. In a justice's court it will be sufficient if the former action is discon- tinued at any time before an issue is actually joined in the second action. Where a justice of the peace has erroneously dismissed an action against the remonstrance of the plaintiff, the action is at an end ; and an appeal to the County Court will not restore it, so as to enable the plaintiff to plead its pendency as a bar to an action subsequently com- menced by the defendant to recover a demand which he would have been bound to interpose as a set-off if the first action were still pending before the justice. Lordy. Ostrander, 43 Barb. 337. In one case tried in the Marine Court, the plaintiff was nonsuited at the close of his evidence ; from the judgment entered thereon an appeal was taken to the General Term of that court, where the judgment was affirmed ; from the judgment of the General Term an appeal was taken to the General Term of the Court of Common Pleas, where the judgment of 662 DEFENSES. Infancy. "Who ia an infant. the lower court was reversed ; and from this judgment the defendant appealed to the Court of Appeals, where the judgment of the Common Pleas was affirmed. In a second suit brought upon the same cause of action it was given as the opinion of the court that had this second action been brought while the appeal to the Court of Appeals was pend- ing the defendant could have pleaded the pendency of the action begun in the Marine Court. Worster v. Forty-second St., etc., li. R. Co., 6 Daly, 528, 531; S. C, 71 IsT. Y. 471. But this question was not in the case decided, and was not passed upon by the Court of Appeals. A plea of another action pending, for the same matter, in a foreign State or country, is no bar to an action here, either in law or equity. Willicmis V. Ayrault, 31 Barb. 364 ; Walsh v. Durkin, 12 Johns. 99 ; Bowne V. Joy, 9 id. 221 ; Osgood v. Maguire, 61 N. T. 524. See Trubee v. Alden, 6 Hun, 78. The pendency of a prior suit in the courts of the United States, or the courts of a sister State, is no defense to an action, and the Code has not changed the rule in that respect. Goolc V. Litchfield, 5 Sandf. 330. But where two or more tribunals have concurrent jurisdiction over the same subject and the parties, a suit commenced in any one of them may be pleaded in abatement to an action for the same cause in any other. Shelby v. Bacon, 10 How. (IT. S.) 56, 6S ; Feale v. Phihhs, 14 id. 368 ; Freeman v. Howe, 24 id. 451, 457. In an action before a justice, a prior suit by the de- fendant against the plaintiff before a justice is a good plea in bar. Wentworth v. Barnum, 10 Johns. 238. § 4. Infancy. Who is an infant. The relation of parent and child, as well ^s the corresponding rights and duties resulting from that relation, has been sufficiently noticed. Ante, 333 to 345. The present discussion will relate exclusively to the legal rights and duties of infants, either when they attempt to enforce contracts made with them, or when they attempt to avoid or evade a performance of them. And this will include those cases in which they are liable upon implied promises as well as those founded upon express promises. Infancy, in the common acceptation of the term, relates to that infantile and helpless condition of the mere infant. But the common law extends the rule far beyond this limit. And, considering the imma- turity of judgment, the want of competent experience, and the hability of youth to be deceived by experience or fraud, the law regards every person under the age of twenty-one years as an infant, and therefore entitled to reasonable protection. There are statutes which have changed the common-law rule, so that for some purposes a person DEFENSES. 663 Infancy. — What acts are void, or voidable. under twenty-one years is of age for those purposes. Those statutes, however, do not relate to the matters here considered. A person is of full age at the beginning of the last day of his twenty-first year, or tho day before his twenty-first birthday. This rule is founded upon an ancient authority, and upon the principle that the law recognizes no parts of a day, and therefore when the last day of the last year begins, it is considered as ending. Herbert v. Turhall, Keb. 589; S. C, Sid. 162; 1 Salk. 44; 2 id. 625; Ld. Raym. 480. An infant naay be of such tender years as to be incapable of making a contract in fact, though in ordinary cases a child of a few years of age may have intelligence enough to know something of the nature of a contract. But the law does not regard them as fully competent to make a binding contract until they arrive at the age of twenty-one years. But this rule of law is not inflexible, for it was adopted as a means of protection to them, and when their contracts can be enforced, and their rights protected at the same time, such contracts will be en- forced, as in the case of necessaries furnished to them. This rule of protection will be so applied as to render it a means of defense, but not as a sword or a means of attacking the right of others. What acts are Toid, or voidable. The general rule is, that the contract of an infant is voidable, and not absolutely void. For that reason he may, either during his minority, or within a reasonable time after becoming of age, avoid the contract if he will ; or, when he ar- rives at full age, he inay, if he chooses, affirm and enforce the contract. See Cha^n v. Shafer, 49 N". Y. 407 ; Henry v. Boot, 33 id. 526, 543 ; Taft V. Sargeant, 18 Barb. 320. There are few, if any, executory contracts of an infant, except for necessaries, which are not voidable at his election. If he makes a con- tract to serve a specified time, and then performs the agreement in part, he may abandon the contract and recover the value of the service rendered, without being liable to a recoupment of the damages sus- tained by his employer for the breach of the agreement. Whitmarsh V. HqM, 3 Denio, 375. So, he may rescind a sale of his personal property, even before he arrives at full age. If an infant who has a general guardian sells a horse belonging to him, and there is no proof that he delivered it with his own hand, he may maintain trover against the vendee for a conversion of the horse if he ofliers to sell it as his own, without any demand of the horse from such vendee. Stafford v. Boof, 9 Cow. 626. But it has been held that if the purchase-price has been paid to such infant, he cannot disaffirm the contract, and maintain such an action without first restoring, or offering to restore, 664 DEFENSES. Infancy. — Right to diaafBrm a contract. the purchase-money. Bartholomew v. Finnemore, 17 Barb. 4 28; Gray v. Lessington, 2 Bosw. 257. This doctrine, however, if not wholly overruled, has no application to a case where the infant has wasted the purchase-money, and has no other property with which to replace it. In such case the infant may rescind the contract witliout restoring, or offering to restore, the purchase-money. Green y. Green, 69 K Y. 553 ; S. C, 25 Am. Kep. 233. A negotiable promissory note given by an infant in the course of carrying on his trade cannot be enforced against him, even though the payee took it in the course of business, without any notice of such in- fancy. Van Winlde v. Ketcham, 3 Caines, 323. Such a note, how- ever, is not absolutely void, but merely voidable at the election of the infant, and it may be ratified by a new promise after he arrives at full age. Everson v. Carpenter, 17 Wend. 419 ; Delano v. Blalte, 11 id. 85; Goodsell v. Myers, 3 id. 479; Bay v. G'unn, 1 Denio, lOS. Infancy is a defense to an action for a breach of marriage promise. Right to disaffirm a contract. Most contracts made by an infant may be disaffirmed at his election, except in the case of a contract for necessaries. The cases are quite numerous, though but few of them will be cited, and those will be given for the purpose of illustration. Where an infant enters into a contract for the purchase of real estate, and he performs labor in part payment of the purchase-price and he elects to avoid the contract on arriving at full age, he may recover the value of his services on a quantum meruit, provided he has not received a conveyance of the land, nor had possession of it. Medbury v. Watrous, 7 Hill, 110, overruling McCoy v. Huffman, 8 Cow. 84. So where an infant makes a usurious loan of money, he may, on com- ing of age, treat the contract as a nullity, and recover back the money, notwithstanding the usurious agreement. Millard v. Hewlett, 19 Wend. 301. This right of disaffirmance is not entirely absolute and arbitrary un- der all circumstances. For, though the law will permit such an act for the advantage of the infant, and therefore allow him to use it as a shield, he will not be permitted to use it as a sword. But there are cases in which an infant may avail himself of a defense which would be denied to an adult. And, therefore, an infant may in- terpose the defense of infancy, although, at the time of making the con- tract, he may have falsely represented that he was of full age. Brown V. McCune, 5 Sandf. 224 ; Conroe v. Birdsall, 1 Johns. Cas. 127. The rule is the same, whether the infant affirmatively represented himself to be of full age, or whether he merely remained silent upon the DEFENSES. 665 Infancy. — What is an affirmance or ratification. subject. lb. The law does not recognize any difference in principle between a direct or an inferential falsehood ; because the one is as fraudulent, in law, as the other. lb. Fraudulent representations made by an infant to induce another to enter into a contract with hiin will not give it validity. Studwell v. Shapter, 54 N. Y. 249 ; Reath v. Mahoney, 7 Hun, 100. The time of disaffirming a contract is sometimes a matter of im- portance ; and there is a distinction between rights relating to real estate and those pertaining to personal property. A deed of lands, executed by an infant, cannot be avoided until he arrives at full age, although he may enter and take the proiits in the mean time. Zouch V. Parsons, 3 Burr. 1794 ; Bool v. Mix, 17 Wend. 120 ; Stafford v. Hoof, 9 Cow. 626. But, although an infant may have sold, and actually delivered personal property with his own hand, he may still disaffirm the contract and reclaim the property before be becomes of full age. lb. And see Fonda v. Gross, 16 Wend. 628, 636. What is an affirmance or ratification. The law permits an infant to disaffirm his contracts for the purpose of conferring a benefit upon him ; and this advantage continues until he arrives at full age. But, M'^hen he attains his majority, with a full knowledge of his rights and advantages, he will then be free to ratify or affirm such conti-acts as he may have made during his infancy. As a general rule there must be some affirmative act to amount to a ratification of a sale of real estate ; and a mere acquiescence for a time will not be enough. Jackson v. Carpenter, 11 Johns. 539; Jackson v. Burchin, 14 id. 124; Yoor- hies V. Voorhies, 24 Barb. 150 ; Green v. Green, 69 IST. Y. 553 ; S. C, 25 Am. Rep. 233. If an infant purchases land and sells it again during infancy, the retention of the proceeds of such sale after he becomes of a^e will not be such a ratification of his contract as to render valid an obligation given by him as a consideration for the land. Walsh v. Powers, 43 N. Y. 23 ; S. C, 3 Am. Eep. 654. But if an infant pur- chases real estate and has taken and continued in possession after be- coming of full age, exercising acts of ownership over the property, he will be deemed to have ratified the contract of purchase, and will not be allowed to plead infancy to avoid the payment of the purchase- money. Henry v. Root, 33 N. Y. 526. A continuation in possession of the property, the conveyance of which constitutes the consideration of the infant's contract, and a sale of the same after arriving at full age, will be such a ratification of the transaction by which the infant derived title as to render him liable on his contract for the purchase-money. Walsh V. Powers, 43 N. Y. 23 ; S. C, 3 Am. Eep. 654; Lynde v. Budd, 84 666 DEFENSES. Infancy. — What is an affirmance or ratification. 2 Paige, 191 ; Bryden v. Bryden, 9 Mete. 519. So the retention of the property, and an omission to disaffirm within a reasonable time after arriving at majority, will operate as an affirmance of the contract, and be an answer to the defense of infancy when set np in an action to re- cover the purchase-money. lb.; Kitchen v. Lee, 11 Paige, 107; Kline V. Beehe, 6 Conn. 494 ; Cecil v. Salisbury, 2 Vernon, 324. Where an action is brought upon a promissory note, and the defend- ant sets up infancy as a defense, the plaintiff, if he relies upon a new promise after the infant became of full age, must sliow that the prom- ise was made to him or to his lawfully authorized attorney or agent, because such a promise or acknowledgment to a stranger will not be sufficient to give a right of action. Bigelow v. Orannis, 2 Hill, 120 ; Goodsell V. Myers, 3 Wend. 479. See Henry v. Hoot, 33 N. Y. 526, 545. But when such a promise is made to the attorney of the plaintiff, who has the note for collection, thi,s will be sufficient to entitle the plaintiff to recover as clearly as though the promise had been made to the plaintiff in person. Hodges v. Hunt, 22 Barb. 150 ; Taft v. Sergeant, 18 Barb. 320. Where infancy is interposed as a defense, and the plaintiff proves a new promise to him at any time after making the original contract, this will be sufficient to entitle him to recover. Bigelow v. Grannis,^ Hill, 206 ; Bay v. Gunn, 1 Denio, 108 ; BorthwicJc v. Carruthers, 1 Term E. 648. If the defendant would defeat the effect of such evidence, on the ground that he was not of full age at the time of such new promise and ratification, the affirmative of the proof is on him to show that fact. lb. But if the new promise, after coming of age, is not made until after the commencement of the action, that will not be sufficient to sustain it, and the plaintiff will be nonsuited. Thornton v. llling- worth, 2 Barn. & Cress. 824. And a refusal to grant a nonsuit on a proper motion would be an error for which the judgment would be' reversed on an appeal. Where an infant makes a note, and after he becomes of full age he promises to pay it in a particular manner, which he omits to do, he will be liable to pay the amount in money. And where an infant made a negotiable promissory note, for $125, jointly with other parties, and after he became of age he promised the holder of the note to pay it, by turning out the note of a third person for $50, and to pay the balance in money, this was held to be a sufficient ratification or new promise to render him liable to pay the amount in money if he did not deliver the note as agreed, and also pay the balance in money. Taft v. Sergeant, 18 Barb. 320. In such a case the holder need not demand the note DEFENSES. 667 Infancy. — Disaffirmance of contract. agreed to be turned out before the action. lb. In the absence of proof to the contrary, it will be presumed that the defendant knew his legal rights, and that he knew the facts necessary to establish his exemption frona any legal liability on the note, at the time he made such prom- ise, lb. If the promise is conditional, it must be shown affirmatively that the condition has been performed, and if a promise is made to pay as soon as the defendant can, the promise is conditional and ability to pay must be proved before an action can be maintained. Everson v. Carpenter, 17 Wend. 419. Bisafflrmance of contract. Where an infant has conveyed real estate, and he would disaffirm the act after he comes of age, it will not be necessary in all cases for him to make an entry upon the lands to accomplish the object. Where the conveyance was by deed of bargain and sale, and the lands are vacant and uncultivated, an open and public conveyance, properly recorded, is sufficient notice to all the world of such disaffirmance. Jackson v. Carjpenter, 11 Johns. 539; Jackson v. JBurc/iin, 14 id. 124. But where the land is occupied under the prior deed, the infant can- not avoid it after coming of age, except by an entry upon the land, or some other act of equal notoriety. Bool v. Mix, 17 Wend. 119. The deed of an infant, whether it is a conveyance at the common law, or under the statute of uses, or a statutorj' grant, is not void but merely voidable. It may be avoided by the infant when he attains his full age, and by those who are privy in blood or in estate, but it passes a title which a stranger is never permitted to impeach. Dominick v. Michael, 4 Sandf. 376. The deed of an infant is not, as a matter of course, superseded and annulled by the mere execution of another conveyance to a purchaser for value, after he has attained his majority. lb. So, in relation to per- sonal property, there must be some act of disaffirmance to entitle an infant to avail himself of the advantage of his disaffirmance. And, where an infant took the note of a third person in payment for work done, and he retained it for eight months after he became of age, and he then offered to return it and demanded payment for his work iu money, it was held, in an action to recover for such work and labor, that his retention of the note for such a length of time was such a ratifi- cation of the contract made during his infancy, as precluded him from recovering. Delano v. Blake, 11 Wend. 85. Liability for torts or wrongs. Although the law allows an in- fant to avoid his ordinary contracts on the ground of infancy, unless in the case of necessaries, or some other excepted instances, it neverthe- 668 DEFENSES. Infancy. — Liability for torts or wrongs. leas does not permit him to shield himself from an action for his tres- passes, or other wrongful acts or torts. Conway v. Reed, 66 Mo. 346 ; S. C, 27 Am. Rep. 354 ; Morgan v. Cox, 22 Mo. 374 ; Yasse v. Smith, 6 Cranch, 226. Nor will a plea of infancy be allowed to defeat an action on a promissory note given by the infant in settlement of a claim of damages occasioned by his tort where no fraud or imposition was practiced in obtaining it. Bay v. Tubbs, 50 Vt. 688 ; S. C, 28 Am. Eep. 519. Where one infant negligently injured another by means of the negli- gent use of a bow and arrow, by reason of which the plaintiff lost an eye, it was held that infancy was no defense, although the defendant was but twelve years of age, and the plaintiff was but nine years old. Bulloch V. Bahoock, 3 Wend. 391. So, if an infant hires a horse to go on a journey, and he willfully drives it with such violence, or he otherwise so cruelly treats it that it dies, he will be liable in an action of trespass for the wrongful acts, and infancy will not constitute any defense. Campbell v. Stakes, 2 "Wend. 137. But, if the injury hap- pens through the unsldllfulness, want of knowledge, discretion and judgment of the defendant, then infancy will be a good defense to an action of trespass which alleges a wrongful and violent driving, and cruel treatment. lb. So, where an infant hires a horse to go a fixed distance, and he intentionally goes beyond it, the act is, in judgment of law, a dispossession of the owner, and a conversion of the property to his own use ; and in an action bronght against him by the owner of the horse to recover damages for the conversion, the action will not be re- garded as one founded upon a breach of the hiring, but upon the un- lawful conversion, and, therefore, infancy will not constitute any de- fense to the action. Fish v, Ferris, 5 Duer, 49. And, if an infant should sell, or otherwise dispose of, or con vert a horse or other property which is bailed to him, that would also be a conversion of it, and infancy would not be any defense to an action for such conversion. So in action for torts to personal property, which are occasioned by the wrongful acts of the defendant, his infancy at the time will not pro- tect him from an action ; and he will be held lo be as fully liable for the damages sustained as though he were an adult. Conklin v. Thomp- son, 29 Barb. 218. In the case last cited the defendant was held liable for the value of a valuable horse which was killed by reason of the sud- den fright caused by the wrongful explosion of a fire-cracker, thrown under him by the defendant. Whether such death was caused by the fright is a question of fact, which will be conclusively settled by the verdict of the jury, if decided upon competent evidence. lb. But where DEFENSES. 669 Infancy. — Liability for torts or wrongs. the fraud or tort consists in the mere breach of his contract, an infant is not liable in an action sounding in tort, because a mere change in the form of pleading would frequently change a cause of action from con- tract to tort, which the law docs not allow. Jennings v. Rundall, 8 Term R. 335. See 2 Kent's Com. 241. Infancy is a good defense to an action on the case for deceit and false warranty in the sale of goods, as the false representations are a part of the contract. Presoott v. N orris, 32 N. H. 101 ; West v. Moore, 11 Yt. 447 ; Morrill v. Aden, 19 id. 505 ; Wilt v. Welsh, 6 Watts, 1 ; Green v. Qreenlomh, 2 Marsh. 485 ; S. C, 4 Eng. C. L. 375. See Peojple Y. Kendall, 25 "Wend. 399. Where an action is brought to re- cover damages for false and fraudulent representations made by an infant upon the sale of a horse, and it is alleged that the fraudulent rep- resentations were made in a warranty contained in a contract of sale, with intent to deceive and defraud the plaintifE, there can be no recovery unless it is shown that the plaintifE has disaffirmed the contract and re- turned or offered to return the horse, llewett v. Warren, 10 Hun, 560. And where a complaint set forth an agreement between the parties, by which the defendant promised to take and vend certain goods be- longing to the plaintifE, at certain stipulated prices for all the goods that he should sell, and that he should receive for his services all sums which might be realized upon such sale, over and above the stipulated " prices, and should return to the plaintifE those goods which he was unable to sell, in good order ; b\it there was no allegation in the com- plaint of a conversion of any of the goods ; but there was an allegation of a demand for a return of the goods, or for their avails, according to the agreement. ai;id that the defendant had neglected and refused to account ; it was held that a finding which established such a demand, and also that the defendant had not returned the goods, did not amount to a finding of a conversion, and that such facts would not justify such a finding. Munger v. Hess, 28 Barb. 76. Under such circumstances there is no ground for an application of the principles of confirmation or ratification, after the defendant became of age, where it does not appear that he did any act whatever, or that any demand was made of h'im after he attained his full age, or that the unsold goods were not in his possession, safe and uninjured, at the time when the action was commenced. lb. In such a case the action will be held to be one upon contract, and not for a tort, and therefore infancy will constitute a good defense. lb. Though an infant is not estopped from setting up infancy as a defense to his contract, even when he purchased goods under a representation 670 DEFENSES. Infancy. — Liability for necessaries. that he was of full age, Brown v. MoCune, 6 Sandf . 224 ; yet, if he fraudulently obtains goods upon credit, with an intention not to pay for them, he will be liable in tort to the party injured, and infancy will not be any defense. Wallace v. Moras, 5 Hill, 391. And see the com- ments on this case in Campbell v. Perkins, 8 N. Y. 440. Where an infant obtains property by falsely representing himself to be of full age, an action of tort may be maintained against him, either to recover the property back, or to recover damages, upon the ground that he obtained the possession of it wrongfully. Eclcstein v. Franh, 1 Daly, 334. See Schunemann v. Paradise, 46 How. 426. In an old case it was said : " If an infant is old and cunning enough to contrive and carry out a fraud, he ought to make satisfaction for it." 2 Eq. Gas. Abr. 515. Infancy will not be any defense to an action upon a bastardy bond which was executed by the defendant as the putative father of a bas- tard, in pursuance of the statute. People v. Moores, 4 Denio, 518. Where an infant is under a legal obligation to do an act, he may, in general, bind himself by a contract for its performance, which will be valid notwithstanding his infancy. lb. Liability for necessaries. The contract of ah infant for necessaries is never void or voidable. He is permitted to make such contracts because it is for his own advantage that he should, because if the rule were otherwise, he might not be able to obtain food, shelter, or raiment. This class of cases, however, is founded upon an exception to the gen- eral rule, and the exception itself has some qualiiications, as will be subsequently seen. The word " necessaries " cannot be used in an absolute sense, because some articles may be considered necessaries for one person when they would not be so considered in relation to other persons. It is always proper to take into account the social position of the defendant, his means or resources, and those of his parents, before it can be properly determined whether particular articles are necessaries for him or not. Peters v. Fleming, 6 Mees. & Wels. 42, 46, 47, 48. If the infant is wealthy and he occupies a high social position, necessaries for him are such things as he ought properly to have, and not merely those things which are indispensable to the preservation of life, or the securing of some bodily comfort. And since so much depends upon the particular cir- cumstances of each case, it is difficult to lay down any positive unbend- ing rule which shall govern every case. There are some things, how- ever, which are always regarded as necessaries. And it is entirely clear that proper food, clothing, lodging, and needful medicines and medical DEFEN'SES. 671 Infancy. — Liability for necessaries. attendance are such necessaries. And an infant may contract for such necessaries on credit, even though he has ready money in his possession at the time. Burghart v. Hall, 4 Mees. & "Wels. 727. So, proper in- struction in matters of education comes within the definition of neces- saries. And, here, as in other cases, the condition of the infant may influence the decision as to what kind of education is proper, under tlie circumstances of the case. A good common school education is one of the things which may be regarded as necessary to every person. And, in some cases, a knowledge of the languages will be held to fall within the class of necessaries. Aldeeson, B., in Peters v. Fleming, 6 Mees. & Wels. 48. Eut a regular collegiate education for one in the ordinary station and circumstances of life has been held, in Vermont, not to be within the class of " necessaries." Middlebury College v. Chandler, 16 Vt. 683. The same case, however, declares that a good " common school " education would be necessary for every one, because such an education is essential to the intelligent discharge of ci\nl, political and religious duties. Manhy v. Scott, 1 Sid. 113, is to the same effect And see Jiaymond v. Loyl, 10 Barb. 489. There are cases in which an infant is liable for necessaries which are furnished to others than himself. If necessaries are furnished for his wife or children, he will be liable in the same manner, and to the same extent, that he would be were they furnished to himself, provided he omits or refuses to furnish them. And, at the common law, as enforced in this State, an infant would formerly have been compelled to pay a debt contracted by his wife, while single, and before marriage. Roach v. Quick, 9 Wend. 238. And as the law now stands in this State he would be liable to the extent of the property which he may have received from such wife. Ante, 325. An infant is not liable for money borrowed, although it was borrowed by him for necessaries, unless it was actually so applied. Randall v. Sweet, 1 Denio, 460. But, when the lender lays out the money him- self, or sees that it is laid out for necessaries, for an infant, at his request, such infant will then be liable to the lender in the same manner as though he had furnished the necessaries. lb. ; Smith v. Ollphant, 2 Sandf . 306. Where an infant lives with his parent, and is properly maintained by him, such infant cannot bind himself even for necessaries. Wailing v. Toll, 9 Johns. 141 ; Bainbridge v. Pickering, 2 W. Bla. 1325. So, where an infant is under the care of a guardian who is able and willing to furnish necessaries, such infant cannot make a binding con- tract for necessaries. Eline v. L^Amoreux, 2 Paige, 41 9. Though an 672 DEFENSES. Infancy. — Actions against infants. infant is bound in some cases for the value of necessaries furnished to him, it must not be understood that even such contracts are entirely conclusive upon the infant. He is made liable to pay for necessaries because that may be for his advantage, ante, 670 ; but he cannot make such a contract for necessaries as will bar him from an inquiry into the actual and just value of the articles furnished. The law per- mits persons to supply him with necessaries, and to recover against the infant for the full fair value of them ; but it does not permit an infant to make an absolute and conclusive bargain as to the price, on account of his presumed inability to take proper care of his own interests ; and in every such case it is for the justice or a jury to say from the evidence what was a fair price. And this is the rule, even though the infant should state an account, or give a bill of exchange, or a promissory note, or even a sealed instrument, because he is not legally capable of bind- ing himself by any such a^ts. Actions against infants. The disability which arises from infancy is a personal privilege of which no one can take advantage but tlie in- fant, or his personal representatives. Yan Bramer v. Cooper, 2 Johns. 279 ; Hartness v. Thompson, 5 Johns. 160 ; Slocum v. Hooker, 13 Barb. 536. And in actions against partners, where one of them is an infant, the non-joinder of the infant defendant will be a good answer in abatement. lb. So in an action against two persons as partners, if one of them is an infant, and is not served with process, the other de- fendant cannot, at the trial, give evidence of the infancy of his co-de- fendant, because that is a personal defense of which the infant alone can take advantage by a proper answer. lb. The subject of new prom- ises has been already noticed. Ante, ^^'o. Infancy ought to be pleaded, if the defendant desires to avail himself of the defense. Ante, 657. The admissions of an infant are competent evidence against him in both civil and criminal cases, where they relate to a matter for which the law holds him accountable. HaiU v. Lillie, 3 Hill, 149. And where, in an action by an infant to recover for his work and labor, he gives evidence tending to show a settlement between the defendant and himself, his admission that no settlement had taken place is com- petent evidence against him. lb. So in an action to recover for money lent to the defendant, his ad- missions of the amount lent to him, though made during his infancy, are admissible as evidence of the sum loaned. Ackerman v. Runyon, 1 Hilt. 169 ; S. C, 3 Abb. 111. § 5. Lunacy, idiocy, and unsoundness of mind. As has been already seen, Vol. 1, 211, the assent of the parties is an essential part of DEFENSES. 673 Lunacy, idiocy, and unsoundness of mind. every valid contract. If an assent in fact is wanting owing to a mis- understanding of tlie parties in relation to the terms of the contract, there will not be a valid contract. And where one of the parties is legally incapable of giving his assent by reason of mental imbecility, there cannot be a valid contract founded upon his assent. It does not follow, however, that a person of unsound mind may not incur a legal liability under some circumstances. It is rarely the case that a person is found who has no use whatever of his reasoning faculties, even if they are impaired, and so, too, it is not frequently the case that an adult is found who never had any reason or judgment. If a person is a lunatic, in the sense that he has no use of his reason, he cannot, of course, make an ordinary contract which will be obligatory upon him. And it is not with such persons that contracts are usually entered into. But, where the mind of a person is impaired, although he may be able to employ his reason to some extent, a contract may be made with him which will raise a different question. Although a person may be a lunatic, yet, if he goes about in society, like other persons, and he orders articles of tradesmen or merchants or others, which are proper and necessary for a person in his station in life, or for his family, the value of such articles may be recovered, and lunacy will not constitute a valid defense to an action. Baxter v. Portsmouth, 5 Bam. & Cress. 170 ; S. C, 2 Carr. & Payne, 178. The recovery is not put upon the groimd of a binding contract, but upon the ground that a person who furnishes necessaries in such a case is en- titled to recover their value upon the same principle that he might re- cover against an infant. lb. An ordinary executory contract of a differ- ent nature would not be enforced by the courts in such a case. lb. But unsoundness of mind will not vacate a contract, if it be unknown to the other contracting party, and no advantage be taken of the luna- tic, especially when the contract is executed in whole or in part, so that the parties cannot be restored to their original position. Molten v. Gariiroux, 4 Exch. 17 ; S. C, 2 id. 487. Therefore, where a lunatic purchased certain annuities for his life, of a company which at the time had no knowledge of his unsoundness of mind, and the transaction was in the ordinary course of human affairs, and fair and hona fide on the part of the company, it was held that, after the death of the lunatic, his personal representatives could not recover back the premiums. lb. And see Fitzhugh v. Wilcox, 12 Barb. 237, opinion. A person who has been an idiot from his birth is liable for neces- saries suitable to his circumstances and condition, unless some unfair ad- vantage has been taken of him. Barnes v. Hathaway, 66 Barb. 452 ; 85 674 DEFENSES. Lunacy, idiocy, and unsoundness of mind. &• Skidmore v. Bomaine, 2 Bradf. 122. See Ex parte Shaper, 2 Hun, 671 ; S. C, 5 Sup. Ct. ( T. & C. ) 693. To constitute a defense to an action for the use and occupation of a house taken by the defendant under a written agreement, at a stipu- lated sum per annum, it is not enough to show that the defendant was a lunabic, and that the house was unnecessary for her, but it must also be shown that the plaintiff knew this, and took advantage of the defend- ant's situation ; and if that is shown, tlie jury should find for the de- fendant, though if tliey find for the plaintiff on such facts, they must render a verdict for the sum specified in the agreement. Dane v. Kirk- wall, 8 Carr. & Payne, 679. In the case just cited, the jury found for the defendant, and the finding was sustained by the full court. A person weak in body, and feeble in mind, may make a valid mort- gage, although it be afterward adjudged by inquisition that he was at the time of unsound mind. Hirsch v. Trainer, 3 Abb. N. C. 274. A mortgage by a lunatic is voidable only and not void. Ingraham v. Baldwin, 9 IS". Y. 45. But see Van Deusen v. Sweet, 51 N. Y. 378. And where there has been no inquisition, the insanity of a mortgagor which was unknown to the mortgagee, is no defense to the mortgage if it was founded upon a full and valuable consideration. Mutual Life Ins. Co. V. Hunt, 14 Hun, 169. Courts of law as well as of equity afford all the protection in their power to persons of unsound mind, and they endeavor to draw a line between sanity and insanity, but it is extremely difficult to distinguish different degrees of intelligence, and to found a legal determination upon the result, of the investigation. Against the consequences of mere imprudence, folly, or that deficiency of intellect which renders mistake easy, but does not amount to unsound or disordered intellect, no court interferes to give relief, unless the other party has made use of this want of intelligence to do an act which is clearly wrongful or fraudulent. But, though courts relieve lunatics and other persons of unsound mind from the performance of ordinary executory contracts, a different rule prevails in relation to torts. The law interferes for their protec- tion against the acts of others, but at the same time it provides that lunatics shall not avoid a liability for their wrongful acts, even though of imsound mind. And, therefore, an action of trespass lies against a lunatic, notwithstanding he is incapable of any evil design, for, where- ever one person receives an injury to his person or property from the vohmtary or involuntary act of another, this is a trespass, although there was no design to do an injury. Weaver v. Ward, Hob. 134 ; Cross v. Andrews, Cro. Eliz. 622. DEFENSES. 675 Drunkenness or intoxication. In such a case lunacy is no defense, because the absence of a wrong- ful motive does not in the least afEect the right of action, though a wrongful motive might, in some cases, enhance the damages, when the act is done by a sane person. Krom v. Schoonmdker^ 3 Barb. 647. See Baihbun v. liathbun, 40 How. 328. Lunacy must be established by competent legal evidence, and it can- not be proved by hearsay and common reputation. Teates v. Heed, i Blackf. 463. See Evidence, title Sanity. Although some of the old cases held that a party could not stultify himself, by showing that he was of unsound mind at the time of entering into the contract, such a defense is now a well-settled right. Hice v. Peet, 15 Johns. 503. § 6. Drunkenness or intoxication. The defense of intoxication is analogous to that of infancy, lunacy and the like cases, if it is not iden- tical with it. In all such cases the defense is founded upon the princi- ple that there cannot be a legal consent when the agreeing party was an infant, a lunatic, or an intoxicated person, for the reason that the ability to give an intelligent assent is wanting. The rule in relation to such cases is now well settled ; though it is proper to mention that it was formerly held, in some cases, that the intoxication of a contracting party did not furnish any legal ground for repudiating a contract which he had made while in that condition. But the present well-settled rule declares that any person who enters into a contract while in a state of SQch complete intoxication as to be deprived of his reason, or not to know the consequences of his act, may successfully dispute his liability in respect to such transaction, whether the contract be a bill or note, or a bond or other written instrument, or a special verbal or written agree- ment. In short, such a state of intoxication enables the intoxicated party to repudiate and avoid any contract which he may have entered into while in that condition. It will not be understood, however, that such a defense is available without any reference to the degree of intoxication, for a party may be partially intoxicated and yet possess so much intelligence and judgment as to be bound by his contracts precisely as though he was sober. And therefore a state of mere partial intoxication, which is not so complete as has been already described, will not, in the absence of fraud and un- fair dealing on the part of the other party, afford any ground of defense to an action upon a contract made in that condition. Cooke v. Clay- worth, 18 Ves. 15, 16; Wagle v. Baylor, 3 Dr. & W. 64, 65 ; Shaw V. Thackray, 17 Jur. 1045 ;. S. C, 1 Smale & G. 537 ; Miller y. Finley, 26 Mich. 249 ; S. 0., 12 Am. Eep. 306 ; CaulUns v. Fry, 35 Conn. 170. 676 DEFENSES. DrunkeDness or intoxication. Tlie leading case in relation to this defense is Gore v. Oibson, 13 Mees. & Wels. 623. In that case, which was an action by an indorsee against an indorser of a bill of exchange, the defendant pleaded, that when he indorsed the bill he was so intoxicated, and thereby so entirely deprived of sense, understanding, and the use of his reason, as to be un- able to comprehend the meaning, nature or effect of the indorsement, or to contract thereby, of which the plaintiff had notice at the time of the indorsement, and this was held to be a good defense to the action. The court said, among other things, by Pollock, C. B., ""With regard, however, to contracts which it is sought to avoid on the ground of in- toxication, there is a distinction between express and invplied contracts. Where the right of action is grounded upon a specific distinct contract, requiring the assent of both parties, and one of them is incapable of assenting, in such a case there can be no binding contract ; but in many cases the law does not require an actual agreement between the parties, but implies a contract from the circumstances ; in fact, the law itself makes the contract for the parties. Thus, in actions for money had and received to the plaintiff's use, or money paid by him to the defend- ant's use, the action will lie against the defendant, even though he may have protested against such a contract. So, a tradesman who supplies a drunken man with necessaries may recover the price of them if the party keeps them when he becomes sober, although a count for goods bargained and sold would fail. In this case the defendant is still lia- ble for the consideration for his indorsement, althoiigh the indorsement itself can give the plaintiff no title." Paekee, J3., said : " With respect' to the authorities cited for the plaintiff, in which courts of equity have refused to relieve parties against contracts made by them when in a state of intoxication, those authorities may possibly have reference to a case of partial drunkenness. But where the party, when he enters into the contract, is in such, a state of drunkenness as not to know what he is doing, and particularly when it appears that this was known to the other party, the contract is void altogether, and he cannot be com- pelled to perform it. A person who takes an obligation from another under such circumstances is guilty of actual fraud. The modem decis- ions have modified the old doctrine, that a man shall not be allowed to allege his own lunacy or intoxication ; and total intoxication is now held to be a defense." Aldeeson, B., said : " A party, even in a state of complete drunkenness, may be liable in cases where the contract is necessary for his preservation, as in the case of a supply of actual nec- essaries ; so, also, where he keeps the goods when he is sober. The ground of his liability then is, that an implied contract to pay for the DEFENSES. 677 Drunkenness or intoxication. goods arises from his conduct when sober ; although I doubt much whether, if he repudiated the contract when sober, any action could be maintained upon it. Here the action is necessarily brought upon the contract itself ; and when it is shown that the contract of indorsement was made when the defendant was in such a state of drunkenness that he did not know what he was doing, and especially when it appears that the plaintifE knew it, I cannot doubt that the contract is void alto- gether. It is just the same as if the defendant had written his name upon the bill in his sleep, in a state of somnambulism." The same general principles are declared in Pitt v. Smith, 3 Camp. 33 ; Fenton V. HoUoway, 1 Stark. 126 ; Barrett v. Buxton, 2 Aik. 167 ; Pren- tice V. Achorn, 2 Paige, 30. In a comparatively recent English case it was held that the contract of a man too drunk to know what he is about is voidable only and not void, and is capable of ratification by the person when sober. Mathews V. Baxter, 28 L. T. E. ( N. S.) 169 ; L. R, 8 Exch. 132. And in Indiana such contracts are held voidable merely, and the party making the contract while intoxicated is not permitted to defend on the ground of drunkenness without rescinding the contract by restoring what was received as its consideration. Joest v. Williams, 42 Ind. 565 ; S. 0., 13 Am. Rep. 377; MoGuire v. Callahan, 19 Ind. 128. In Penn- sylvania, drunkenness of the maker is no defense to a negotiable note in the hands of an innocent holder for value. State Bank v. McCoy. 69 Penn. St. 204 ; S. C, 8 Am. Rep. 246. The legal representatives of a party who made a contract while in such a state of intoxication have the same right to avoid the contract that the deceased party would have had. Wigglesworth v. Steers, 1 Hen. & M. 70. It is of no consequence how it happened that the party became so much intoxicated, for, although the intoxication resulted from the voluntary act of the party himself, that will not deprive him of the defense. Sanity is the normal condition of the mind, and it is to be presumed; and, therefore, long- continued inebriety, although resulting in occasional insanity, does not require proof of a lucid inter- val to give validity to the acts of the drunkard, as is required where general insanity is proved. Gardner v. Gardner, 22 Wend. 526. But, while a drunken person may be relieved from his contracts, he is not relieved from his liability for his acts while drunk. And, therefore, he will be liable for his crimes, or for his trespasses or wrongful acts, pre- cisely as though he was entirely sober. Voluntary intoxication does not furnish any excuse or immunity for crime ; and so long as the offender is capable of conceiving a design, 678 DEFENSES. Coverture. lie will be presumed, in the absence of contrary proof, to have intended the natural consequences of his own acts. Kenny v. People, 31 N. Y. 330. This rule is eminently just and wise, and it ought to be enforced more strictly than in the case of lunatics or infants. Such persons are held liable for their tortious acts, even though they have no actual in- tention to do wrong, and even when they do not know the act done to be illegal or wrong. But if a man voluntarily depri ves himself of the use of liis reason by getting drunk, he is not entitled to any favor at the hands of a court or jury for such wrongful acts as he may have done while in that condition. Prentice v. Achorn, 2 Paige, 30, 31. § 7. Coverture. The rights, duties and obligations of married women have been already so fully discussed, ante, 657 to 667, that little more need be said on that subject. There are, however, some few points in relation to actions against married women that may need a few words of explanation. Under the old law a husband was entitled to the personal property and to the earnings of his wife, and for that reason he was held liable to pay her debts, including those incurred be- fore marriage. But as the law now stands, a married woman has the same control over her property that she would have if she had remained a single female. Ante, 30 1, 302. So, too, she may carry on a separate business in her own name, and retain the profits arising from such busi- ness, and from her labor and services. Ante, 304. And she may now be sued alone upon any contract which she may make in relation to her separate business, and coverture will not constitute any defense in such a case. Ante, 305, 312. A judgment recovered against her in such an action may also be enforced against her property'-, precisely as though she were a single woman. Ante, 306, 312. But, where she lives with her husband, who maintains the family, the husband will be liable for the necessaries furnished for the family use, unless the wife makes an express agreement for such purchases upon her own personal credit. But the husband is not to be rendered liable to any extent which his wife may choose to run him in debt; nor, in any case, for any amount, when he himself has furnished a sufficient quantity of proper articles. Ante, 325. A husband may, however, be liable for necessaries furnished to his wife in some cases, even though the existence of an agency or assent whether express or implied, is disproved as a matter of fact, upon the ground that there may be an agency implied in law, though none can be presumed in fact. Cromwell v. Benjamin, 41 Barb. 558. A hus- band is legally bound to supply his wife the necessaries of life, so DEFENSES. 679 Alteration or modification of contract by consent. long as she does not violate her duties as a wife ; and he may discharge this obhgation by supplying her with necessaries himself, or by his agents, or by giving her an adequate allowance in money ; and in such cases he is not liable to a tradesman or merchant who supplies her with necessaries without his authority. lb. But if he does not himself thus provide for lier support, he is legally liable for such necessaries as have been furnished to her by tradesmen or merchants even though against his orders. lb. Where there is some evidence to sustain the finding of the court below upon these questions, the decision will be conclusive. lb. An action may be maintained by a borrower against a husband and wife jointly, to recover back money which has been paid as usuri- ous interest, where the money loaned and the security taken therefor belonged exclusively to the wife as a part of lier legal estate, and where the money taken for the loan and forbearance was paid to, and received by her, and the husband, so far as he participated in the transaction, acted for her, and with her knowledge and assent. Porter v. Mount, 41 Barb. 561. § 8. Alteration or modification of contract by consent. All con- tracts, whether verbal or written, sealed or unsealed, may be altered or modified at the pleasure of the contracting parties, when all of them agree to make such change in the original contract. Such altei'ation must, however, be made in a legal manner or the law will not regard the attempted change. And one of the first principles which relates to this subject is the rule that a written sealed executory agreement cannot be modified, rescinded or released by a mere verbal agreement, before there has been a breach of such agreement. Coe v. Hobby, 72 N. Y. 141 ; French v. New, 28 id. 147 ; S. C, 2 Abb. Ct. App. 209 ; OI,ough V. Murray, 3 Eob. 7 ; Kuhn v. Stevens, 7 id. 544 ; S. C, 36 How. 275 ; Ducker v. Rapp, 9 Jones & Sp. 235. And where a land- lord executed a sealed lease of a store, and in such lease he covenanted to make certain specified alterations in the premises, but the decay of the building forced him to change his plan, and he accordingly took down the old building and erected a new one in its place, which he fitted up for a store for the tenant, who verbally assented to the change, it was held, in an action by the tenant, against the landlord, for a breach of the covenants in the original sealed lease, that evidence of the ver- bal assent of the tenant was not competent, because the sealed instru- ment could not be varied or released, before breach, by a mere parol agreement or assent. Delacroix v. Bulkley, 13 "Wend. 71. So, where a written sealed lease had been executed and delivered, by virtue of which a term for several years had been created, at a 680 DEFENSES. Alteration or modification of contract by consent. specified rent, and during the term, and about two years after the execution and delivery of the lease, a verbal agreement was made be- tween the landlord and the tenant, by the terms of which the tenant agreed to leave upon the premises, at the expiration of the term, cer- tain temporary buildings which he had put thereon, but which he had a right to remove, and in consideration of which the landlord agreed that the tenant should be discharged from paying the two quarters' rent then next accruing, it was held, in an action for the recovery of such two quarters' rent, that this verbal agreement was no defense to the action, although the said buildings were then upon the premises. Lawrence v. Woods, 4 Bosw. 354. This agreement was held to be void on the ground that it was void by the statute of frauds, because it was not to be performed within oue year, and also because the agree- ment was for the sale of property of more than $50 in value. But it was equally void because it was a mere verbal agreement to modify a written sealed lease. But, notwithstanding it is not competent to the parties to change a written sealed executory agreement before breach, yet, after there has been a breach of such an instrument, there may be a new parol agree- ment in relation to it, which will be entirely valid. Delacroix v. Bulk- ley, 13 Wend. Tl ; Keeler v. Salisbury, 27 Barb. 485 ; Esmond v. Van Benschoten, 12 id. 366 ; Dodge t. Crandall, 30 N. Y. 294, 307; Clough V. Murray, 3 Eob. 7. And so, too, where a written sealed agreement fixes the time for its performance, that time may be ex- tended by a parol agreement. Flynn v. McKeon, 6 Duer, 203; Burt v. Saltan, 1 Hun, 551; S. C, 4 Sup. Ct. (T. &C.) 109; Newton v. Wales, 3 Eob. 453 ; Clarh v. Bales, 20 Barb. 42. And it has also been held that an executed parol agreement, if founded upon a suffi- cient consideration, may operate to discharge the stipulations of a sealed contract. Townsend v. Emfire Stone Dressi/ng Co., 6 Duer, 208 ; Lattimore v. Harsen, 14 Johns. 330 ; Dearborn v. Cross, 7 Cow. 48'; Jenhs v. Robertson, 2 Sup. Ct. (T. & C.) 255; S. C. afiirmed, 58 N. Y. 621 ; City of BrooUyn v. Brooklyn City E. B. Co., 57 Barb. 497. And where written sealed articles of agreement for the sale of real estate do not specify any place for the deli very of the deed, the parties may subsequently appoint a place by parol for that purpose. Esmond v. Van Benschoten, 12 Barb. 366. The cases already cited were those in which a sealed instrument was attempted to be modified by a subsequent parol agreement. But an entirely different question is presented when the parties to a sealed in- strument all agree that an alteration may be made in the original in- DEFENSES. 681 Alteration or modification of contract bv consent. strument. In such cases, if all the parties consent, the sealed instru- ment may be altered so as to read as the parties desire it should, and, if the alterations are actually made with such consent, the instrumfent will be entirely valid in its altered condition. Woolley v. Constant, 4 Johns. 54 ; Penny v. Corwithe, 18 id. 499 ; Tomphins v. Corwin, 9 Cow. 255. Where the instrument is in writing, but not under seal, it is clear that it may be modified in any manner that a sealed instrument may. And, where the law does not require any writing, but treats a verbal agreement in relation to the subject-matter of the contract as valid as a written instrument, then a written unsealed agreement may be modified or altered by a verbal agreement, if founded upon a suffi- cient legal consideration. A familiar illustration of this may be seen in the case of a payment of money upon a note before it became due, upon an agreement by the holder to extend the time of payment of the balance, in consideration of the payment of a part of the money before it became due. Such an agreement is entirely valid, and will be enforced by the courts. Newsam v. Finch, 25 Barb. 175. Where the original agreement is by parol, it may be modified by parol at the pleasure of the parties, provided the agreement is one which is founded upon any legal and sufficient consideration. The principle of the decisions maybe stated thus: a written sealed agreement cannot be modified by a subsequent executory verbal agreement. But, if such agreement is execxuted with the consent of the parties, and is founded upon a sufficient legal consideration, then the agreement will be valid. And, when the original agreement is not under seal, but is in writing, because some statute or rule of law requires a written instrument, then such agreement cannot be modified by a parol agreement, unless the subsequent agreement is an executed one. If the original agreement was merely verbal, or in writing not under seal, it may be modified at the pleasure of the parties by parol, if it is not a case in which the law requires a written agreement. But little need be said in relation to the effect of the new agreement upon the original one. If such new agreement is valid it will super- sede or nullify the original one in those respects in which it varies the terms of it. And from the time when the new agreement becomes operative the old one ceases to have any effect in the particulars which are modified or abrogated. And if the original agreement is modified or abrogated before any breach of it occurred, no action can be main- tained upon it so far as it relates to the modified or abrogated portions of it; but the remedy, if any, and the rights of the parties will have to be determined altogether by the new agreement. And, in such a 86 682 DEFENSES. Alterations or erasures without consent. case, therefore, if an action is brought upon the original agreement, the new one will be a complete answer to the action, so far as it has changed or canceled the former one. Thus much has been said for the purpose of exhibiting the rule in those cases in which there is an alteration or a modification of the original contract by the consent of the parties. It now remains to treat of those cases in which there is an alteration of the agreement by one of the parties without the con- sent of the other, and of its effect upon the original agreement. § 9. Alteratious or erasures without consent. One of the prin- cipal objects in requiring certain agreements to be reduced to writing was to secure the rights of the parties by preventing frauds and per- juries. Ante, 239. And when any agreement has been reduced to writing, whether the law requires a written instrument or not, it is the policy of the law to prevent any alteration of such instrument, unless it is done with the consent of all the parties, and especially with the consent of the party whose interests may suffer from the change. Whatever the parties have once deliberately agreed upon and reduced to writing must stand as the agreement until they consent to a change in its terms. The law enforces this rule with great strictness, and with sufficient penalties. In the first place, the party who makes an unau- thorized alteration of a written agreement is not permitted to take any advantage from his wrongful act. But this rule extends still further, and, as we shall presently see, it frequently deprives him of all benefit or advantage conferred by the original instrument. This rule, with its exceptions, will be noticed fully in a subsequent place. Altera^ tions by consent stand upon an entirely different footing as we have already seen. Ante, 679. Alterations of sealed instruments, deeds, etc. If a sealed instru- ment, or deed, after it had been signed, sealed and delivered is altered in any material part, with the privity and consent of the parties, a new contract is created, which puts an end to the first contract. Ante, 681. But if an alteration, whether it be by interlineation, addition, drawing a line through the words, or writing new letters on the old ones, has been made without the consent of the parties against whom the contract is sought to be enforced, either by the plaintiff, who sues upon the con- tract, or by some other person, while the instrument was in the posses- sion or custody of the plaintiff, the alteration will discharge the original instrument without- substituting any new contract in its place. Lewis V. Payn, 8 Cow. 71. If, after the sealing and delivery of a deed, a schedule is added to the deed, describing certain property upon which the deed is to operate, DEFENSES. 683 Alteration of written unsealed contracts. and the deed is insensible and inoperative without the schedule, the subsequent addition of such schediile avoids the deed. Weeks v. Mal- lairdet, 14 East, 573. So, if the holder of a bond and mortgage alters the condition thereof, so as to make them payable on demand, instead of after a term of years, this will avoid them, so that neither he nor his assignee, nor any one claiming under him, can maintain an action upon them. Waring v. S^nyth, 2 Barb. Ch. 119. If a mortgage is altered without the knowledge and consent of the mortgagor, by eras- ing the name of the mortgagee and inserting the name of another person, the alteration will render it void. Smith v. bellows, 9 Jones & Sp. 36. So, where a general release is given which releases all demands to the day of the date of such release, and the releasee alters the date of the release so as to change the date from an earlier to a later one, this is a material alteration, and if made by the releasee, after the execu- tion and delivery thereof by the releasor, and without his consent, it will avoid the release. Maybee v. Sniffen, 2 E. D. Smith, 1. There is an important qualification in relation to alterations which deserves notice. If a written sealed instrument is executed in duplicate, each part is an original, and a fraudulent alteration of one counterpart will not avoid the other. Lewis v. Payn, 8 Cow. 71 ; S. C. , 4 Wend. 423, 426. An immaterial alteration made in a written sealed instrument by a person standing in the position of a stranger to the parties claiming under it will not invalidate the instrument, and it may be enforced ac- cording to its original terms. Casoni v. Jerome, 58 JST. Y. 315. If a mortgage is executed in blank, and the name of the mortgagee is inserted by the agent of the mortgagor, under a parol authority, it is valid and binding. Hemmenway v. Mxdock, 56 How. 38. And if a lease is executed with blanks, not material to render it valid, the fill- ing of the blanks will not be a material alteration. Kinney v. Schmitt, 12 Hun, 521. Alteration of written unsealed contracts. The same general rules apply to these contracts in the same manner that they do to sealed in- struments. And, Avhen a simple unsealed contract in writing has been finally completed and signed, if it is altered in anymaterial part, either by interlineations, additions, or otherwise, without the consent of the party against whom it is sought to be enforced, such contract will be entirely void, and no action can be maintained upon it, and if the al- teration was fraudulently made it will release the party not consenting to the alteration from all liability upon the consideration for which it 684 DEFENSES. Alteration of bills or notes. was made. Trow v. Olen Cove Starch Co. , 1 Daly, 280. If the al- teration is made by a stranger, withont the plain tifE's consent, and while the contract was out of the plaintiff's hands, such alteration will not have any effect as against the plaintiff, but the contract will remain as it originally stood, provided the nature and extent of the alteration can be clearly ascertained, and it can be seen what the contract was at the time it was executed. Waugh v. BiosseU, 5 Taunt. 707; Hemming V. Trenery, 9 A.d. & El. 934: ; Henfree v. Bromley, 6 East, 310 ; Raper v. Birkheolc, 15 id. 17 ; Trow v. Olen Cove Starch Co., 1 Daly, 280. And see Casoni v. Jerome, 58 N. Y. 315. But if the alteration is of such a nature as to render this a matter of doubt, the contract is extinguished and destroyed as effectually as if the writing had been obliterated. The cases are very numerous, and but a few of them will be cited, and those are given as mere illustrations of the rule. A writ- ten contract will be avoided if the plaintiff affixes a seal to the defend- ant's signature to a simple contract, and it is done while the contract is in the possession or under the control of the plaintiff. Davidson v. Cooper, 13 Mees. & "Wels. 352. So, after the delivery of a brokei-'s bought-and-sold note, the insertion of a stipulation to the effect that damaged articles are to be taken at a valuation, whether done by the vendor himself, or by the broker at his request, will avoid the contract. Powell V. Dlvett, 15 East, 29. So, an alteration of the sold note by a purchaser, to the effect that the articles sold were to be of the vendor's own manufacture, will avoid the contract. Mollett v. WaoJcerbarth, 5 Man. Grang. & Scott, 181, 191. Where the postscript of a letter con- tains matter which is material to the body of it, and such postscript is torn off withoxit the consent of the defendant, this is such a material alteration as to destroy the letter, and to prevent its introduction in evi- dence by the plaintiif. Tillou v. Clinton c& Essex Mv,t. Ins. Co., 7 Barb. 564. Alteration of bills or notes. The same general principles which re- late to the alteration of sealed or unsealed written instruments are equally appheable and controlling when the question relates to the alteration of a bill or note, since that is but one species of written in- struments. Bills and notes are in such common and extensive use that the questions in relation to alterations in them are more frequently raised than in any other class of cases. And, since they are so exten- sively used, and their validity is so generally sustained, it is of the ut- most importance that their credit should remain unimpaired by any unauthorized alterations. For the purpose of showing clearly how the courts enforce the rule, that such instruments cannot properly be DEFENSES. 685 Alteration of bills or notes. altered, and the effects which result from an alteration, some of the numerous cases will be cited. In relation to bills and notes, it is always an important inquiry whether a particular alteration is a material one. For there may be alterations of the instrument which do not, in any manner, affect its validity, nor change the liability of the parties thereto. And if the alteration is of that immaterial character, it will not affect the rights or liabilities of the parties. Thus, if the maker of a note, or the drawer of a bill, makes a mere memorandum under his name, that will not discharge the indorsers. If a bill is indorsed in blank by the payees, and it is then left by them in the hands of the drawer, who transfers it without the knowl- edge of the indorsers, with the following words written by the drawer under his name : " Left with Mr. B. (the plaintiff) as collateral," this is not such a material alteration as will render the bill void as to the indorsers. Baohellor v. Priest, 12 Pick. 399. So if words which are senseless and inoperative are added which cannot affect any one, this will not render the bill or note invalid. Granite R. JR. Co. v. Bacon, 15 Pick. 239. So when, at the foot of an accommodation bill, there was a memorandum signed by the last indorser, directing the pro- ceeds of the bill to be credited to the drawer, and in a suit by the last indorser against a prior one, it appeared that the memorandum had been cut off, it was held that the memorandum did not con- stitute any part of the bill, and that its removal did not in any man- ner affect the rights of the parties. Hubbard v. Williamson, 5 Ired. 397. Words, other than indorsements of names, written upon the back of a bill or note do not ordinarily constitute any part of it, and, there- fore, an erasure or alteration of them need not be explained before pursuing a remedy solely connected with the body of the note. Tap- pam, V. Ely, 15 Wend. 362. If, however, the memorandum on the back of the bill or note is of snch a character as to be incorporated with the body of it, and to become a part of the contract, then an alteration or an erasure of such memorandum is a material alteration. And where a note was drawn payable " with lawful interest," and after it was signed there was added, in a corner of the note, words expressing a different rate of interest, without the assent of the maker, but with the consent of the holder, this was held to render the note void. War- rington V. Early, 2 Ell. & Bl, Y63. The figures in the margin of the bill or note are regarded as a mere index for reference as to the amount and not as a part of the instrument, and, therefore, an alteration of such figures will not impair the paper. Smith v. Smith, 1 E. I. 398. 686 DEFENSES. Alteration of bills or notes. So, where a note is written in pencil-marks, it will not invalidate the instrument to write over in ink what was written with a pencil. Iteed V. Roark, 14 Texas, 329. If, after a note has been delivered to the payee, a particular place of payment be inserted therein by interlinea- tion, without the maker's consent, he will be discharged. Niagara Dist. Bank v. Fairman, etc., Toot Co., 31 Barb. 403; Bank of America v. Woodworth, 18 Johns. 315; S. 0., 19 id. 391 ; White v. Bass, 32 Ala. 430 ; Oakey v. Wiloox, 3 How. (Miss.) 330 ; Burchfield V. Moore, 3 Ell. & Bl. 683. And the rule is the same even though the note subsequently comes into the hands of a hona fide indorser for value. Nazro v. Fuller, 24 Wend. 374. But if a note is delivered with a blank space after the word " at " left for the place of payment, the leaving of this blank gives an implied authority to the lawful holder to fill it up by designating a place of payment. Waggoner v. Millington, 8 Hun, 142 ; Kitchen v. Place, 41 Barb. 465 ; Bedlich V. Doll, 54 N. T. 234 ; S. C, 13 Am. Eep. 573 ; McOrath v. Clark, 56 N. T. 34; S. C, 15 Am. Rep. 372. See Shuler y. Gillette, 12 Hun, 278. Vol. I, 712. So where the memorandum relating to the place of payment does not constitute any part of the note, but is a mere memorandum for the convenience of the maker, or holder, the rule applied to alterations in the note itself does not apply. And, therefore, where a note was made payable to the order of the maker, and by him indorsed in blank, it was held that it might be treated as a note payable to bearer, notwithstand- ing there was a memorandum at the foot of it, indicating a particular place of payment. Masters v. Barretto, 8 C. B. 433. If the sum or amoimt payable in a note is altered without the consent -oi the maker, this will render the note void. Mills v. Starr, 2 Bailey, 359 ; Ogle v. Oraham, 2 Barr. 132; Pankey v. Mitchell, 1 Breese, 301; Ramkin\. Blackwell, 2 Johns. Cas. 198 ; Bailey v. Taylor, 11 Conn. 531 ; Bank of Commerce v. Union Bank, 3 N". Y. 230 ; Henman v. Dick- inson, 5 Bing. 183. But where a note was drawn, signed and indorsed with the amount partly in blank, so that it read, "I promise to pay," etc., "eight for value," and the maker, without the indorser's knowledge, inserted " hundred dollars," and the jury found that the note was intended by the maker and indorser to have been drawn for that amount, it was held that an action against the indorser could be sustained. Boyd v. Brotherson, 10 "Wend. 93. And see Clute v. Small, 17 id. 238. Where a note is payable in goods or chattels, an alteration which changes the articles specified to others is material. It will not make DEFENSES. 687 Alteration of bills or notes. any difference that the actual value to be paid remains the same, be- cause one of the kinds of articles may be much more easily and readily obtained than the other. And where a note was payable in "merchant- able neat stock" and the note was altered by inserting the word "young" after " merchantable," this was held to vitiate the note. Martendale v. Follet, 1 N. H. 95. So, where a note is payable with interest from a specified date, any alteration or erasure of the words fixing the time for paying interest, or changing the rate of interest, is material and will avoid the note. Brown v. Jones, 3 Port. (Ala.) 420 ; Lubhering v. Kohlbrecher, 22 Mo. 596; Whitmer v. Frye, 10 id. 348; Trigg v. Taylor, 27 id. 245; Waterman v. Vose, 43 Me. 504. Such an alteration, though ma- terial, is binding if done with the consent of the maker, or indorser, or other party to be charged on the instrument. Sutton v. Toomer, 1 Barn. & Cress. 416 ; Warrington v. Early, 2 Ell. & Bl. 763. The addition of the words " with interest " is a material alteration ; and if made by the maker after indorsement by a third person and be- fore delivery to the payee, it will render it void as against the indorser, in the absence of proof of authority to make the addition. MoGrath V. Glarh, 56 IST. Y. 34 ; S. C, 15 Am. Eep. 372. So an alteration in the time of payment is material. Master v. Miller, 4 Term R. 320 ; Paton v. Winter, 1 Taunt. 420 ; Aldersonr. Langdale, 3 B. & Ad. 660 ; Knight v. Clements, 8 Ad. & El. 215 ; Atkinson v. Hawdon, 2 id. 628 ; Qliffordv. Parker, 2 Man. & Grang. 909 ; Upstone v. Merchant, 2 Barn. & Ores. 10 ; Williams v. Jarrett, 5 B. & Ad. 32. It is of no consequence what the change is which is effected, whether it varies the day specified for maturity, by changing the date to an earlier or a later period, and thus making the instrument fall due later or earlier than was agreed, or whether it alters tlie time of payment in any other manner. Nor will it make any difference tliat by the alter- ation the maker is apparently benefited. An alteration by which the time of payment is retarded or postponed is as fatal as one by which it is shortened, and equally vitiates the note, even in the hands of an in- nocent indorsee for value. Bathe v. Taylor, 15 East, 412 ; Bank of TJ. S. V. Pussel, 3 Yeates, 391 ; Miller v. Gilleland, 19 Penn. St. 119 ; Heffner v. Wenrich, 32 id. 423 ; Lisle v. Rogers, 18 B. Monr. 528 ; Rogers v. Voslurgh, 87 N. Y. 228. The reason why such an alteration is material is, that if the aay of payment is accelerated, the debtor loses a part of the sum for which he stipulated, and if the note carries interest, that is affected ; if it is re- 688 DEFENSES. Alteration of bills or notes. tarded the bar of the statute of limitations, or the presumption of pay- ment, is also postponed. And besides that, the date of a note payable a certain time after date is material, and hence an alteration therein destroys the identity of the note. But whether the alteration is bene- ficial or prejudicial, the alteration makes the note different from that made by the promisor, and he may say, I never entered into this agree- ment, and thus discharge himself from all obligations. But an alteration of the date of a promissory note, made by the agent of the maker, under an erroneous belief that he had authority to do so, does not render the note void, although done in the presence of the plaintiff, and in the absence of the defendant, where there is no evidence of a fraudulent intent on the part of the agent, or of the plaintiff. Van Brmit v. Eoff, 35 Barb. 501. Adding a seal to the signature of the promisor is a material alter- ation, because it changes a simple note of hand to a specialty, which is binding on the maker, although executed without adequate considera- tion, and it therefore relieves the plaintiff from proving the considera- tion when the onus of that proof might otherwise be shifted on him. Davidson v. Cooper, 13 Mees. & "Wels. 343 ; TJ. S. v. Lmn, 1 How. [U. S.] 104; Biery v. Haines, 5 Whart. 563. Adding the name of another drawer or maker to a bill or note is a material alteration, such as will discharge the original parties not con- senting thereto. And when one person signs a joint aud several note with another, as surety, and a third name is afterward added as surety, without the consent of the first surety, the note will be vitiated as to him, and he will be discharged. Gardner v. Walsh, 5 Ell. & Bl. 82. So, where the payee of a note, before its matiirity, transferred it to an- other, and for the purpose of giving his own personal security to the purchaser, and without any fraudulent intent, wrote his own name under the names of the makers, but adding to his own name the word "surety," this was held to be a material alteration of the note, which rendered it void as to the makers. ChappeU v. Spencer, 23 Barb. 584. Mo Yean v. Scott, 46 id. 379. See Robinson v. Reed, 46 Iowa, 219. On the other hand it has been held that the addition of the name of another person, as maker, to a several note, without the knowledge and consent of the original signer, is not such a material alteration as will avoid the note. Broionell v. Winnie, 29 IST. Y. 400 ; S. C, 29 How. 193 ; Denick v. Hublard, 27 Hun, 347. And see MoCaughey v. Smith, 27 N. T. 39. Whatever may be the effect of the addition of names to a bUl or note after its dehvery as a completed contract it is clear tha^ the law does not DEFENSES. 689 Alteration of bills or notes. permit an alteration by erasing the name of one of the makers, or by the substitution of any other name in its place ; and every such unauthor- ized alteration will discharge the other makers of the note. Cumher- land Bank v. Hall, 1 Halst. 215 ; Smith v. Weld, 2 Barr. 54 ; Damis v. Coleman, 7 Ired. 424 ; State v. Polke, 7 Blackf. 27 ; Richmond Manuf. Co. V. Davis, id. 412; Mason v. Bradley, 11 Mees. & Wels. 590; Gillett V. Sweat, 1 Gilman, 475. But the erasure of a surety's name, by an agreement between the surety and the payee of the note, has been held not to be such an altera- tion as discharges the principal. Broughton v. West, 8 Ga. 248 ; Hunt- ington V. Finch, 3 Ohio St. 445 ; People v. Call, 1 Denio, 120, But an alteration of a joint and several note to one which is joint, or the change of a joint note to a joint and several one, wiU destroy the validity of the note. Clerh v. BlackstocTc, Holt's N. P. 474; Humphreys v. Quillow, 13 N. H. 385 ; Hemmenway v. Stone, 7 Mass. 58 ; Herring v. Hone, 4 Bing. 28 ; 2 Carr. & Payne, 401. The right of a surety to be protected against alterations in his con- tract is guarded with the greatest care. And where a surety has signed an accommodation note for another person's benefit, and the note is full in form as to sum, time of payment, place where payable, and the like, his liability is limited by the terms of his contract, and any addi- tion or alteration as to the time or place of payment, or the addition of the words " with interest," or the like, will invalidate the paper. Wood- worth V. Bank of America, 19 Johns. 391 ; Waterjnan v. Yose, 43 Me. 504; Lisle v. Sogers, 18 B. Monr. 528; Marsh v. Griffin, 42 Iowa, 403 ; Hart v. Clouser, 30 Ind. 210 ; Locknane v. Emmerson, 11 Bush (Ky.), 69 ; Kountz v. Hart, 17 Ind. 329. So where a note, payable with interest, and executed by a surety, was after the execution thereof, by agreement between the principal and the payee, but witli- out the knowledge or assent of the surety, altered by an addition thereto, making the interest payable semi-annually, it was held that this was a material alteration, which rendered the instrument void as against the surety. Dewey v. Eeed, 40 Barb. 16 ; Neff v. Horner, 63 Penn. St. 327 ; Fulmer v. Seitz, 68 id. 237. So the substitution of a particular consideration in the place of the usual words " for value received " will have the same effect. Knill v. Williams, 10 East, 431. So an interlineation of the words " or order," or the words " or bearer " in a promissory note will render it void, even in the hands of an inno- cent holder, because such words would render a note negotiable when it was not so without them. Bruce v. Westcott, 3 Barb. 374 ; Johnson 87 690 DEFENSES. Alteration of bills or notes. V. Bank of U. S., 2 B. Monr. 310 ; Fepoon v. Stagg, 1 Nott & Mc5- Cord, 102; Scott v. Walker, Bndlej (Ga.), 24:3: If a blank space is left in a promissory note for the insertion of words of negotiability, the filling up of such blank will not vitiate the note, because the intentional leaving of such a blank space for that purpose is equivalent to an authority to fill it up. Cluie v. Small, 17 Wend. 238, 243 ; Kershaw v. Cox, 3 Esp. 246. And see Cariss v. Tattersall, 2 Man. & Grang. 890. But if a note is perfect when delivered, no alteration can be made except by consent ; and, therefore, since a non-negotiable note is as complete as any other, the law will not imply an authority to the holder to make it negotiable. Bruce v. Westcott, 3 Barb. 374. If the maker of a note or the drawer of a bill consents to an altera- tion of the instrument after its delivery, that will render it as valid an alteration as in the case of the alteration of any other instrument. Ante, 679. If there are two signers to a note, and one of them con- sents to an alteration of it, and it is accordingly altered, the party con- senting will be bound, while the other party will be discharged. Broughton v. Fuller, 9 Vt. 373 ; Sweetmg v. Halse, 9 Barn. & Cress. 365 ; Sutton v. Toomer, 7 id. 416 ; Downes v. Richardson, 5 Barn. & Aid. 674 ; Paton v. Winter, 1 Taunt. 420 ; Peojple v. Gall, 1 Denio, 120. The question of consent isalways a question of fact for the jury, or for a justice sitting in their place. Words which the law would supply or annul may be added to a bill or note, and yet not constitute a material alteration. Thus, if a bill is made payable on a specified day "in the of our Lord, 1805," omit- ting the word yea/r, this may be supplied. Waugh v. Bussell, 5 Taunt. 707; S. C, 1 Marsh. 214; Kincannon- v. Carroll, 9 Yerg. 11 ; Blair v. Bank of Tenn., 11 Humph. 84 ; Rale v. Russ, 1 Greenl. 334. So mistakes in a bill or note may be corrected, and the alteration will not vitiate ; and, therefore, the insertion of either words or figures which have been left out by mistake is no defense. And where a bill was payable "twenty-four after date," it was held that the word " months " might be inserted by the holder of the bill, without impair- ing the validity of the instrument. Conner v. Rputh, 7 How. (Miss.) 176. So, when a note is intended to be made for $800, and is indorsed by the payee for the maker's accommodation, and by mistake the words " hundred dollars " are omitted, the maker, without the indorser's consent, may lawfully insert them. Boyd v. Brotherson, 10 Wend. 93. What words were intended to be inserted is, of course, a question of fact upon DEFENSES. 691 Alterations, by whom made. the evidence. But when the evidence shows that the proper words were inserted, that will be sufficient. Alterations, by whom made. This rule, which prohibits the altera- tion of written instruments, was intended to prevent fraud and fraudu- lent practices. And, therefore, where the holder of a bill or note in- tentionally alters it in a material part, he avoids the security and loses all remedy upon it. And the same rule prevails as to other written in- struments whether sealed or unsealed. But an alteration by accident, mistake, or by the act of a stranger, after the right of the party upon the bill or note is complete, will not prevent his recovering upon it. An alteration in the date of a promissory note, made by an agent of the maker, under the erroneous supposition that he had authority to make such alteration, when in fact he had not, will not render such note void, in the absence of proof of a fraudulent intent in doing the act. Van Brunt v. Eoff, 35 Barb. 501. An instrument which is mutilated by a stranger is not thereby avoided, but an action may still be maintained upon it, and where an instrument is lodged in the hands of a third person for the benefit of both parties, it will not be destroyed from' the fact that such third party tore off the seals by mistake. Mees V. Overhaugh, 6 Cow. 746. So where an award had been made under the hand of an umpire, and ready for delivery, pursuant to the terms of reference, of which notice had been given to the parties, it was held that an alteration of the terms of the award by the umpire, by drawing his pen through the sum of £57, and inserting in lieu thereof the sum of £66j but leaving the original figures still legible, was void for the larger sum, but it was also held that the award was good for the origi- nal sum, because the alteration was made by a mere stranger, without the privity or consent of the party interested. Uenfree v. Bromley, 6 East, 309. And see Jackson v. Malin, 15 Johns. 293; MalinY. Malin, 1 Wend. 625, 659 ; ante, 683, 684. And it is a general rule that any alteration which may be made by the defendant, or by some third party, without the plaintifPs consent, and while the instrument was out of his hands, vdllnot have any effect, but the contract will remain as it originally stood, provided the nature and extent of the alteration can be clearly ascertained, and it can be seen what the contract was at the time when it was executed. Waugh V. Bussell, 5 Taunt. 710 ; Hemming v. Trenery, 9 Ad. & El. 934 ; Henfree v. Bromley, 6 East, 310; Baper v. Birhheck, 15 id. 17; Waring v. Smyth, 2 Barb. Ch. 119. The cases which have been already cited clearly show that it is a ma- terial alteration alone that affects the validity of written instruments. 692 DEFENSES. Alteration — Presumption as to the time when made. And where the alteration is such that it does not in any manner affect the legal effect or the validity of the instrument, the alteration will be harmless. There are so few cases of this character, however, that no prudent person will risk the validity of the entire instrument by making any alterations. Presumption as to the time when alteration was made. There are few questions which have been left in greater doubt by the decisions than that relating to the burden of proof in the case of altered instru- ments. And even now it is difficult to declare with entire certainty what the true rule is, when an instrument is offered in evidence, which shows clearly on its face that it has been at some time altered, but there is no evidence to show whether it was done before or after the execu- tion and delivery of the instrument. Some cases hold that the plaint- iff is bound to explain or account for the alteration before he can recover, if the alteration is suspicious and for the benefit of the holder. So other cases declare that where there is an alteration which is not valid, the first presumption is that the alteration was made afterward. "While still other eases assert, that when the alteration is against the interest of the party who appears to have made it, or who claims under the instru- ment, or where the alteration is immaterial, or where there are other cir- cumstances which rebut the presumption of alteration, the whole qiies- tion is one for a jury, or the justice, as a question of fact. The cases upon such questions will be found collected in 1 Smith's Lead. Cases, 458, etc., in a note to Master v. Miller ; and in 2 Parsons on Notes, and Bills, 576, 5Y7, 578, 579, and notes. A few of the cases decided in this State will show how much is settled law here. There is no principle of the common law which requires a deed or other instrument to be written throughout with the same colored ink. The fact that ink of different colors is used may or may not afEord evi- dence of a fraudulent alteration of an instrument. It may often be an important item of evidence on that question. And it may be consistent with the utmost honesty. There is nothing in the fact, considered in itself, which will require the court to exclude the instrument for that reason, as a matter of law, though it may be a proper matter for the consideration of the jury, in connection with the other facts in the case, on the question of a fraudulent alteration. Smith v. MoGowan, 3 Barb. 404, 406. The fact that the name of the grantee in an assignment of a lease is written upon an erasure of another name does not of itself render the assignment a nullity ; nor is itprima facie evidence of the invalidity of the assignment. lb. But the existence of an erasure in a material DEFENSES. 693 Alteration — Presumption as to the time when made. paxt of a deed, or other instrument, is a suspicious circumstance, requir- ing explanation on the part of the party producing it ; and it is the province of the jury to determine whether tlie explanation given is satisfactory. lb. The defendant cannot properly object to the admis- sion of the deed or other instrument for any purpose, on the ground that writing the name of the grantee upon such erasure made the in- strument a nullity ; because the order of proof on the trial is a-matter of discretion with the court, which may determine whether the deed or the explanation shall be first given in evidence. lb. When nothing appears but the mere fact of an erasure or interlinea- tion in a material part of the deed, of which no notice is taken at the time of the execution, it is a suspicious circumstance, which requires some explanation on the part of the plaintiff ; but whether the explana- tion given is satisfactory or not is for the jury to determine. Jackson V. Oshmme, 2 "Wend. 555, 559. Tliere is no presumption and no rule of law which authorizes a court or jury to infer that an instrument has been altered, or that it does not appear in the same form that it was when it was executed, from the mere fact that the body of the instrument, or of an indorse- ment, is not in the handwriting of the signer. Small v, Sloan, 1 Bosw. 352. But when circumstances of suspicion are proved, the party claiming under the paper may, properly, be required to satisfy a jury that it was signed in the form in which it appears ; but in all other cases, -the plaintiff is merely bound to prove the signature of the defendant, which is sw&Lciea.t prima facie evidence that he assumed the obligation im- ported by the instrument. lb.; O'Dmvnell v. Ha/rmon, 2 Daly, 424. In the case of Mayhee v. Sniffen, 2 E. D. Smith, 1, 10, the decisions were carefully and fully reviewed, and the result thus summed up by WooDKUFF, J. J " In this conflict of opinion, it appears to me that the sensible rule, and the rule most in accordance with the decisions of our own State is, that the instrument, with all the circumstances of its his- ory its nature, the appearance of the alteration, the possible or prob- able motives to the alteration or against it, and its effect upon the par- ties respectively, ought to be submitted to the jury ; and that the court cannot presume, from the mere fact that an alteration on the face of tlie instrument (whether under seal or otherwise) that it was made after the signing. " And see TUlou v. Clinton <& Essex Mut. Ins. Go., 1 Barb, 564 ; Newell v. Salmons, 22 id. 64T ; Warimg v. Smyth, 2 Barb. Ch. 119 ; Acker v. Ledya^d, 8 Barb. 514. There may be instances in which it may be material which party as- 694 DEFENSES. Illegality of contract. sumes the burden of proof, but in this State, where all the parties may- be witnesses, the determination of the rule, by making it a question of fact for the jury, is perhaps as just as any. If the plaintiff produces, and seeks to recover upon an instrument which has evidently been altered at some time, any rule which im- poses an explanation upon his part, is founded on a presumption that he has been guilty of a crime, or at least of a fraud, or that he is cogniz- ant of it; and such a presumption violates one of the first principles of the law, which is that innocence is to be presumed until guilt is proved. And if the whole question is left to the jury, the practical effect must be the same as though left with the court. No plaintiff would fail to explain the matter to a jury to their satis- faction, if in his power to do so, since he would stand a chance of failing in the action in the absence of such explanation. And, on the other hand, the defendant would prove the alteration if possible, since that would establish as a fact that which he claims to improve to his advantage as a presumption. It is one of the most common occurrences of our daily experience to see writings which have erasures and interlineations, which were inno- cently and legally made, while it is but occasionally that a fraudulent alteration is even alleged, and therefore the presumption as a presump- tion of fact would naturally be in favor of the fairness and innocence of the alteration. But whether that be so or not, the whole matter is a mere question of fact, except so far as it relates to the matter of where the burden of proof lies. And when it is settled that the whole matter is a question for the jury on such evidence as may be given, the rule of practice will be certain, while the question of fact will be submitted to a proper tribunal for its final decision. See Artisans' Bank v. Backus, 31 How. 242. § 10. Illegality of contract. General principles. That iHegahty in a contract will render it void is as clearly settled as any rule of law can be. And where the law declares that any particular contract is void it must of necessity refuse all assistance in aid of its enforcement, for it would be extremely inconsistent to hold a contract entirely illegal and void, and then enforce its performance, or give damages for its non-perform- ance. And, consequently, the law does not only excuse a party from performing a contract which was illegal when it was made, but it also excuses a party from performing a contract which was legal when made, but which has become illegal in consequence of a subsequent act of the legislature ; and so, where one covenants not to do a thing which it was lawful for him to do at the time of promising, and an act of the legis- DEFENSES. 695 Illegality of contract. lature afterward is passed which compels him to do it, this act will re- peal the covenant and excuse his subsequent acts which are done in pur- suance of the act of the legislatm-e. Presb. Church v. Qity of New York, 5 Cow. 538. Whenever a contract has been entered into for the performance of an immoral act, or an act which is contrary to the provisions of an act of the legislature or to the public policy of the common law, the courts will not lend their assistance for the enforcement of the contract, whether it be a simple contract or even a contract under seal. For- sythe V. State, 6 Ham. 21 ; Toler v. Armstrong, 11 "Wheat. 258 : Scudder v. Andrews, 2 McLean, 464 ; Spalding v. Preston, 21 Vt. 9 ; Merrick v. Trustees, 8 Gill, 59 ; Saratoga Covmty BamJe v. King, 44 N. Y. 87 ; Knowlton v. Congress and Empire Spring Co., 57 id. 518 ; Smith v. City of Albany, 7 Lans. 14 ; S. C. affirmed, 61 JS". Y. 444 ; Pratt v. Adams, 7 Paige, 615. So, where from the plaintiff's own statement of his case or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, then the courts will refuse their as- sistance in enforcing such claim by action. Holman v. Johnson, 1 Oowp. 341; Fivaz v. Nichols, 2 C. B. 501; Otis v. Harrison, 36 Barb. 210. There is a marked and settled distinction between execu- tory and executed contracts of a fraudulent and illegal character. Whatever the parties to an action have executed for fraudulent or illegal purposes, the law refuses to lend its aid to enable either party to disturb. Whatever the parties have fraudulently or illegally contracted to exe- cute, the law refuses to compel the contractor to execute or pay damages ior not executing, but in both cases leaves the parties where it finds them. The object of the law in the latter case is, as far as possible, to prevent the contemplated wrong ; and in the former to punish the wrong-doer by leaving him to the consequences of his own folly or mis- conduct. Smith V. Eubbs, 10 Me. 76 ; Nellis v. Clarh, 4 Hill, 424, 429 ; Knowlton v. Congress and Empire Spring Co., 57 N. Y. 518, 534; Wew Tork State Loan and Trust Co. v. Helmer, 77 id. 64, 72. If the illegality appears upon the face of the contract, no proof of illegality will be wanting, and the action thereon will at once fail ; but if such illegality does not so appear on the face of the instrument, it may still be shown, through the medium of parol or oral testimony whether the contract be under seal or a mere simple unsealed written agreement. Brown v. Brown, 34 Barb. 533. But whenever the act which is the subject of tho contract may, according to the circumstances 696 DEFENSES. Contracts in restraint of trade. be lawful or unlawful, it will not be presumed that the contract was to do the unlawful act. lb. And see Lewis v. Davison, 4 Mees. & Wels. 654, 65Y, per Abin&ee, C. B. Illegality is never presumed ; on the contrary, every thing must be presumed to have been legally done till the contrary be proved. Bennett v. Olough, 1 B. & Aid. 463 ; Ormes v. Bauchy, 82 N. T. 443 ; Curtis v. OoJcey, 68 id. 300. The law will never presume an agreement void as illegal, or against public policy, when it is capable of a construction which will make it lawful and valid. lb. But when illegality is shown, that wiU invalidate the transaction; and therefore all bonds, agreements and guarantees to indemnify persons against the consequences of their illegal acts are absolutely null and void, whether the parties giving the bond of indemnity did or did not know of the illegaUty of the transaction. Dv/oergier v. Fellows, 10 Barn. & Cress. 826 ; Ives v. Jones, 3 Ired. 538. But when the act to be done is a mere private trespass, as in the case of a levy on goods by an officer, and the promisee did not know the act to be a trespass at the time of accepting the bond or of doing the act, such bond of indem- nity will be valid. Coveni/ry v. Barton, 17 Johns. 142 ; Stone v. Hooker, 9 Cow. 154. And see Vol I, 253, 670. But a bond to indemnify a man against the consequences of publish- ing a libel would be void. Shackell v. Hosier, 2 Bing. N. C. 634. So of a bond given to a sheriff or constable to indemnify him against the consequences of permitting his prisoner to go at large, or for com- mitting any other breach of duty. Featherston v. Hutchinson, Cro. Eliz. 199 ; Morris v. Chapmam., Jones, 24 ; Hodson v. Wilkins, 7 Greenl. 114 ; Ayer v. Hutchins, 4 Mass. 370 ; Churchill v. Perkins, 5 id. 541. So of a promise to pay a man a sum of money "in con- sideration that he will beat another out of such a close ; " Allen v. Hescous, 2 Lev. 174 ; or of a promise to save him harmless if he wiU confine and imprison another person. Fletcher v. Harcot, 2 Hut. 55. Contracts in restraint of trade. Among those contracts which from a very early date have been held void by the principles of the common law, none are more familiar than those relating to restraints of trade. And it is a general rule, most conclusively established, that a bond, covenant or agreement for a total restraint of trade, or of trade generally, is illegal and void, though it is equally well settled that a contract for a partial restraint of trade may be valid, if founded upon an actual lona fide consideration, and provided, also, that an unreasona^ ble degree of restriction is not imposed. The law favors trade, and DEFENSES. 697 Contracts in restraint of trade. therefore auy contract for the total restraint of trade will be absolutely void. Contracts in partial restraint of trade, if nothing more appears, are presumed to be bad ; but if the circumstances of the transaction are set forth they may be sufficient to rebut that presumption, and from those circumstances the court will determine whether the particular con- tract submitted for consideration is valid or not. Mitchel v. Beynolds, 1 P. "Wms. 181 ; Boss v. Sadgbeer, 21 "Wend. 166 ; Weller v. Hersee, 10 Hun, 431. And therefore if there be a stipulation, even in an in- strument under seal, that a trade or profession shall not be carried on in a particular place, and there are no recitals in the deed nor any aver- ments in the pleadings, showing circumstances which render such a con- tract reasonable, the contract is void. But if there are circumstances recited in the instrument, or if they appear by proper averments, it will then be a question for the court to determine whether the contract in question is reasonable or not ; and the true test is whether or not the contract is prejudicial to the public interest, for it is upon grounds of public policy alone that these contracts are upheld or avoided. "When contracts for the partial restraint of trade are upheld it is not because they are advantageous to the individual with whom the contract is made, and a sacrifice pro tanto of the rights of the community, but because it is for the benefit of the public at large that they should be enforced. Many of these partial restraints on trade are perfectly con- sistent with public convenience and the general interest, and they have therefore been supported ; such is the case of disposing of a shop or a store in a particular place, with a contract on the part of the vendor not to carry on a trade or business in the same place. This is in effect the sale of a good-will, and offers encouragement to trade by allowing a party to dispose of all the fruits of his industry, and such a contract is valid. Prugnell v. Gosse, Aleyn, 67 ; Broad v. Jollife, Cro. Jac. 596 ; Jelliet v. Broad, Noy, 98. An agreement made upon the disso- lution of a copartnership and the purchase by one of the iirm of the stock in trade, that the retiring partner shall not engage in the business for a specified time, or so long as the other shall continue in the same business, is not in restraint of trade and is valid. Curtis v. GoTcey, 68 N. Y. 300 ; Nobles v. Bates, 7 Cow. 307 ; Dunlap v. Gregory, 10 N. T. 241 ; Mott v. Mott, 11 Barb. 127. A retiring partner, who releases and assigns all his interest in the good-will of the business to his copartner does not thereby relinquish the right to establish and carry on a business similar to that of the late firm, so long as he does no act to mislead customers into the belief that he is carrying on business as the successor of the old firm : or, that. 88 698 DEFENSES. Contracts in restraint of trade. when dealing with him, they are dealing with such successor. White V. Jones, 1 Abb. (N. S.)328. So, too, there is a frequent class of cases in which a tradesman, manu- facturer, or professional person agrees to take a clerk or servant into his employment, upon an agreement by the clerk or servant that he will not carry on the same trade, profession or business within certain speci- fied limits. In such a case the public derives an advantage from the enforcement of such a contract, because the employer is then free to select able assistants whom he may instruct, and to whom he may commu- nicate the secrets of his trade, or the results of his skill and experience without any fear that such clerk or servant will afterward become a rival in his business. Such being the general reasoning now recognized with regard to con- tracts in partial restraint of trade, the next inquiry will be as to the conditions essential to their validity ; that is, under what circumstances such contracts will be deemed fair and reasonable by the courts. In the first place every contract in restraint of trade must have some legal consideration to support it. Weller v. Hersee, 10 Hun, 431 ; Ross V. Sadgbeer, 21 Wend. 166. If there is no consideration what- ever for it, or if the consideration is of no real value, the contract will be regarded either as a fraud upon the rights of the party restrained, or as a mere voluntary contract, a nudum pactum, and therefore void. The court, however, will not inquire into the adequacy of the considera- tion. Hitchcodk v. Colter, 6 Ad. & El. 438 ; Sainter v. Ferguson, Y 0. B. 730. The court can have no judicial perception of the ratio of the consideration to the restriction, and if there was a legal consideration of value passing to the contractor, the contract will be enforced with- out reference to the amount of that value. lb. ; Tallis v. TalUs, 1 El. &B1. 410. If the restraint of trade contemplated by the agreement between the parties be unreasonable, such agreement is void altogether ; if not, it is lawful, the only question being whether there is a consideration to support it, and the court will not inquire into the adequacy of the con- sideration, but will leave the parties to make the bargain for themselves. Pilkington v. Scott, 15 Mees. & Wels. 660 ; Beg. v. Welsh, 2 El. & Bl. 363 ; Hartley v. Cummings, 5 C. B. 24Y. Assuming that there is some consideration to support an agreement in restraint of trade, the reasonableness and the validity of the contract will have to be deter- mined mainly by reference to the degree of restraint which it seeks to impose and which may be considered in regard, as well to its duration, as to the superficial area over which it is intended to be operative. DEFENSES. 699 Contracts in restraint of trade. In regard to the duration of fbe restriction, it is now settled that it may continue during the life of the contractor, and that it is limited neither to the period during which the contractor may carry on his busi- ness, nor even to the term of his life-. Hitchcock v. Goker. 6 Ad. & El. 454 ; Elves v. Crofts, 10 C. B. 259 ; MaUan v. May, 11 Mees. & Wels. 653 ; Rcmnie v. Irvine, 7 Man. & Grang. 969 ; Pemherton v. Yaughqn, 10 Q. B. 87 ; Bastings v. Whitley, 2 Exch. 611 ; AtTcyns v. Kin- nier, 4 id. 776; Tallis v. Tallis, 1 El. & Bl. 391. In determining as to the reasonableness of a contract in restraint of trade, regard being had to the extent of area over which it is to be in force, the court will consider whether the restraint in question, to which some limit must be assigned, is larger and wider than the pro- tection of the party with whom the contract is made can possibly require, and if it is so, such restraint must be deemed unreasonable in law, and the contract which would enforce it will be void. The re- straint is reasonable when it imposes no shackles upon one party which are not beneficial, to the other. Weller v. Hersee, 10 Hun, 431 ; Moss v. Sadgbeer, 21 Wend. 166. Sometimes difficulty may be felt in applying the general principle just stated to particular facts, and where the question turns upon the reasonableness or the unreasonableness of the restriction of the party from carrying on trade or business within a certain space or district, the answer may depend upon various circumstances that may be brought to bear upon it ; such as the nature of the trade or profession, the pop- ulousness of the neighborhood, the mode in which the trade or profession is usually carried on, and other matters with which the court cannot in reason be supposed to be conversant. From the decided cases, however it will be seen that the interest of the party claiming protection has been held to extend very widely. In Horner v. Ora/oes, 7 Bing. 743, Tindall, Ch. J., said : " We do not see how a better test can be appHed to the question, whether reasonable or not, than by considering whether the restraint is such only as to afford a fair protection to the interests of the party in favor of whom it is given, and not so large as to interfere with the interests of the public. Whatever restraint is larger than the necessary protection of the party can be of no benefit to either ; it can only be oppressive, and if oppressive, it is in the eye of the law unreasonable. Whatever is injurious to the interest of the public is void, on the grounds of public policy. No precise boundary can be laid down within which the restraint would be reasonable, and beyond which excessive. In DoAjis V. Mason, 5 T. E. 118, where a surgeon had restrained himself 700 DEFENSES. Contracts in restraint of trade. not to practice within ten miles of the plaintiff's residence, the con- tract was held reasonable, and in one of the cases one hundred and fifty miles was considered as not an unreasonable distance, where an attorney had bought out the business of another who had retired from his profession. But it is obvious that the business of an attorney re- quires a limit of a much larger range, as so much may be carried on by correspondence or by agents. And, unless the case were such that the restraint was plainly and obviously unnecessary, the court would not feel itself justified in interfering. It is to be remembered, however, that contracts in restraint of trade are, if nothing more appears to show them reasonable, bad in the eye of the law." And see Boss v. Sadgheer, 21 Wend. 166, 167. "Where the plaintiff and defendant were competitors in running packet boats on the Erie canal, between Rochester and Buffalo, and the defendant, for the consideration of $12,500 was induced to sell out to the plaintiff his boats and other property connected with the business, and to enter into a bond in the penal sum of $25,000 that he would not at any time thereafter own, run or be interested in any line of packet boats on the canal within the limits before occupied by him, this was held to be a valid bond, and an action thereon was sustained. Ghapjpel v. Brochvmy, 21, "Wend. 157, 159. And the court, by Beonson, J., said : " The common law will not permit individuals to oblige themselves by a contract when the thing to be done or omitted is injurious to the public. Contracts in restraint of trade are for the most part contrary to sound pohcy and are consequently held void. This is the general rule. There may be cases where the contract is neither ' injurious to the public nor the obKgor, and then the law makes an exception and declares the agree- ment valid. The general presumption is against all contracts in restraint of trade, and consequently it lies upon him who seeks to enforce such an obligation to show that it is free from objection. Contracts which go in total restraint of trade, as that a man will not pursue his occupation or carry on business anywhere in the State, are void, upon whatever consideration they may be made. They must be injurious to the public, and no good reason can be shown why one in- dividual should thus fetter himself, or another individual should con- tract for the restraint. The obligation is injurious to one party without being beneficial to the other. But there may be good reasons for allow- ing parties to contract for a limited restraint, as that a man will not exercise his trade or carry on business in a particular place, and when such reasons are shown the contract will be upheld and enforced." DEFENSES. 701 Contracts in restraint of trade. When the defendant for a suflScient consideration covenanted that he would desist from selling mattresses, etc., " in all the territory of the State of New York west of the city of Albany," it was held that his contract embraced too large a territory, and that it was consequently void. Lawrence v. Kidder, 10 Barb. 641, 650, 651. Selden, J., said : " If the party bound be excluded only from a single town or a district of moderate dimensions, leaving the residue of the country open to him, he has still an ample field left for his industry and exertions in the way in which they may be made most available. There is no necessary loss of profit to the public arising from such a contract. Why, then, it may be asked, does the law annex any other condition to the validity of such a contract than that there should be territory enough left to afford the party bound ample room for the exercise of his vocation. It is because, as I have already said, the law regards the convenience of the public not less than its profit. It is for the convenience of the community, not only that all the various arts and trades should be followed, but that their pursuit should be distributed throughout the different sections of the country, so that every locality should have its appropriate accommodation. Hence the law will not tolerate a contract which excludes one individual from carrying on his trade in a particular locality, unless the circumstances show that his place is to be supplied by some other person of the same trade. This reason harmonizes with those principles of public policy upon which the whole doctrine concern- ing contracts of this description rests. It makes the whole turn upon questions affecting the public alone, without that mixing up of private with public interests to which much of the language before referred to tends. It accounts perfectly also for the rule that if the restriction cover more territory than is necessary for the business of the obligee, that is, if it cover a territory over the whole of which the obligee can not reasonably be expected to extend his business, it is void — not, however, for the reason that it is an unreasonable restriction upon the obh'gor, or party bound, but because it embraces a portion of territory from which one party is excluded, and which the other cannot supply." The general principles having been stated, a few illustrations will show in what cases such contracts have been held void, as well as those which were regarded as valid. A coal merchant's clerk and traveler bound himself " not to follow or be employed in the business of a coal merchant for the space of nine months after he should have left the service of his employer, and the bond was held void. Ward v. Byrne 6 Mees. & Wels. 548. By a contract between a brass-founder at Birmingham and certain persons carrying on the business of com- 702 DEFENSES. Contracta in restraint of trade. mission agents in the brass trade at that place, in partnership, it was stipulated and agreed that the firm should employ the brass-founder in executing orders received by them for brass work, and that the latter should not at any time work for, execute the orders of any other persons without the consent of the firm, but the firm was at liberty to employ any other person if it should think fit, and the brass-founder was also to be at liberty to execute the order of any person residing in the city of London, or within six miles thereof; and it was held that as the em- ployers were under no obligation to find the workman in work, the contract was void. Young v. Timmins, 1 Or. & J. 340. If, however, a contract of hiring and service exists between the parties, if the one is bound to employ and pay wages, as well as the other to serve ex- clusively, there is no unreasonable restraint of trade, and the contract is valid. Pilkington v. Scott, 15 Mees. & Wels. 660. Contracts re- straining the exercise of a trade or profession in particular localities are good in some instances, as has already been seen. Ante, 697. And so, too, it must be confined within reasonable limits. Ante, 698. In applying this rule, it has been held that the limits of a provincial town, and ten or twenty miles around it, is not too large for such a profession as a surgeon, apothecary, and man-midwife ; Da/ois v. Mason, 5 Term Kep. 118 ; Athyns v. Kvnnier, 4 Exch. T76 ; or five miles from Northampton square in the county of Middlesex, in the case of a milkman and cow -keeper; Proctor v. Sargent, 2 Man. & Grang, 20 ; or one mile, in the case of a fruiterer. Peniberton V. Vaughan, 10 Ad. & El. (K S.) 87. A person who has covenanted not to trade within certain reasonable limits is bound by his covenant, although the covenantee may have ceased, both by himself and his agents, licensees or assigns to carry on the trade. Alves v. Crofts, 10 C. B. 241. And where a vendor has sold out his business upon an agreement not to set up, embark in, or carry on a trade within certain specified limits, he will be liable if he serves customers residing within that district, although he has no resi- dence, warehouse, or place of business therein, if he procures such customers by soliciting their orders within the district, and then sup- plies them with the goods at a place without such district. Turner v. Eoans, 2 El. & Bl. 512. Upon a sale of the good-will of a drapery and hosiery business for £170, the vendor covenanted that he would not carry on or assist in the carrying on of a business such as that car- ried on upon the premises assigned, within two miles, imder a forfeiture of £200, to be recovered as liquidated damages, and it was held that this covenant was broken by the vendor's supplying, from a place be- DEFENSES. 703 Illegality of contract. — Corrupting legislation. yond the prescribed limits, goods to the amount of £150, to customers residing within the district, although done at their solicitation. Bramp- ton V. Beddoes, 13 J. Scott (JST. S.), 538 ; Sander v. Hoffman, 64 JST. Y. 248. And, finally, the exercise of a trade or profession in the pro- hibited district must be shown to have been done in opposition to the will of the covenantee ; for if it is done at his request, to aid and assist him, there is no breach of the covenant. Rawlinson v. Clarke, 14 Mees. & Wels. 191. Contracts of this character will be stxictly construed. If a physician binds himself not to locate in a certain locality to practice, it must be shown not only that he practiced in that locality, but also that he lo- cated there, in order to establish a breach of his covenant. Amedon v. Gannon, 6 Hun, 384. The agreement should be contained in a deed or contract in writing, and expressed in clear and distinct terms. Courts of equity will not specifically enforce a parol contract in re- straint of trade, when it does not rest on any distinct consideration and is in dispute. Stephens v. Aulls, 3 Sup. Ct. (T. & C.) 781. Corrupting legislation. Every person who has interests which may or will be affected by legislation, may, both morally and legally, use all fair and just means of persuasion with the members of the legislature for the protection or advancement of such interests. A contract for procuring papers, for furnishing information or memoranda, for producing evidence, for making arguments before the legislature, or a committee of that body, in regard to matters of legislative cogni- zance, properly before them, is legal and valid. Sedgwick v. Stanton, 14 N. Y. 289 ; Jenkins v. Hooker, 19 Barb. 435 ; Russell v. Burton, ^% id. 539. And see Bohm v. Goldstein, 53 N. Y. 634 ; Bigelow V. Law, 5 Abb. 456. But a contract for lobby services, for personal influence, for mere importunities to members of the legislature, or other official body, for bribery or corruption, or for seducing or influencing them by any other arguments, persuasions or inducements than such as directly or legiti- mately bear upon the merits of the pending application, is illegal, against public policy, and void. Brown v. Brown, 34 Barb. 533, 537 ; Harris v. Roof's Fxrs., 10 id. 489. An agreement in respect to lobby services, and in effect providing for the sale of an individual's personal influence to procure the passage of a private law by the legislature, is void, as being inconsistent with public policy, and will not support an action. lb. ; Rose v. Truax, 21 Barb. 361, 374 ; Marshall v. Baltimore <& O. R. R. Co., 16 How. (U. S.) 314 ; Clippinger v. Hepbaugh, 5 Watts & S. 315 ; Mills v. 704 DEFENSES. Sunday laws. Mills, 40 N. Y. 543 ; McKee v. Gheney, 52 How. 144. A coDtract to pay a sum of money in consideration of the plaintiff's using his in fluence with the commissioners of docks to procure a certain lease at a rent not exceeding a specified sum is contrary to public policy and void. Pease v. Walsh, 49 How. 269 ; S. C, 7 Jones & Sp. 514. An agreement to influence the directors of a corporation for the benefit of others, to the prejudice of the company, is of the same character. Bliss V. Matteson, 45 N. Y. 22. So is an agreement to pay a sum of money for the use of personal interest with a railroad corporation to obtain a contract for building the road. Da/oison v. Seymour, 1 Bosw. 88. Wagers, betting and gaming, etc. The law in relation to this sub- ject has already been fully discussed so far as it relates to the statutes and decisions of this State. Anie, 403, 404. Sunday laws. It will not be necessary to discuss the common-law rules at length in relation to contracts made on the Sabbath, because our statute has substantially provided for most of the cases which will ordinarily arise in practice. " There shall be no shooting, hunting, fishing, sporting, playing, horse-racing, gaming, frequenting of tippling-houses, or any unlawful exercises or pastimes, on the first day of the week called Sunday ; nor shall any person travel on that day, unless in cases of charity or necessity, or in going to or returning from some charch or place of worship within the distance of twenty miles, or in going for medical aid or for medi- cines and returning, or in visiting the sick and returning, or in carrying the mail of the United States, or in going express by order of some public officer, or in removing his family or household furnitui-e, when such removal was commenced on some other day ; nor shall there be any servile laboring or working on that day, excepting works of necessity and charity, unless done by some person who uniformly keeps the last day of the week, called Saturday, as holy time, and does not labor or work on that day, and whose labor shall not disturb other per- sons in their observance of the first day of the week as holy time Every person, being of the age of fourteen years, offending against the provisions of this section shall forfeit one dollar for each offense." 2 li. S. 936, § 66 (5th ed). " No person shall expose to sale any wares, merchandise, fruit, herbs, goods or chattels on Sunday, except meats, milk and fish, which may be sold at any time before nine of the clock in the morning ; and the articles so exposed for sale shall be forfeited to the use of the poor, and may be seized by virtue of a warrant for that purpose, which any DEFENSES. 705 Sunday laws. justice of the peace of the county, or mayor, recorder or alderman of the city is hereby authorized to issue upon a conviction of the offender. "When seized they shall be sold on one day's notice being given, and the proceeds shall be paid to the overseers of the poor of the town or city." 2 E. S. 936, § 67, 5th ed. An agreement to work on the Sabbath will be void under this stat- ute ; and no compensation can be recovered for labor performed on that day, unless it comes within the exception as work of necessity or charity. S%m, etc., Association v. Tribune Association, 12 Jones & Sp. 136. And where an attorney's clerk was employed at a weekly salary, and he performed services on Sunday upon a promise of extra com- pensation, it was held that he could not recover for the labor done on that day. Watts v. Van Ness, 1 Hill, 76. ' Traveling on Sundays, except for special purposes and in specified cases, is prohibited by statute, and therefore a contract for the hiring of horses and a carriage, made with a knowledge that they are to be used for the purpose of riding on Sunday to a place of resort for pleasure, is illegal, and the owner cannot recover compensation for the use of the property so hired. Nodine v. Doherty, 46 Barb. 59. But if the hirer willfully injures the property, or suffers it to be injured through his negligence, the owner may recover the damages he has thereby sustained. lb. /See Bertholf v. O^Eeilly, 8 Hun, 16. Where a contract is to be performed on demand, the demand, if made on Sunday, will not be sufficient to put the other party in default. Delamater v. Miller, 1 Cow. 75. If a magistrate is unlawfully re- quired to do public service on Sunday, his compliance does not entitle him to compensation. Palmer v. Mayor, etc., of New Yorh, 2 Sandf. 318. When, from accident or mutiial error, the day for the perform- ance or fulfillment of a contract falls wpon Sunday, the party bound to perform it may defer performance until the next day, and a performance on Monday will be a discharge from liability, or a proper fulfillment of the contract. Camphell v. International Life Ass. Co., 4 Bosw. 298, 319. , This was so held in a case where the last of thirty days, within which there was a right to pay a premium, expired on Sunday, and the premium was tendered on the Monday following, which was held to be in time, and sufficient to continue the policy in force. lb. When neither the common law nor any statute forbids any act to be done on Sunday, all such acts are as valid if done on Sunday, as though they were done on any other day in the week. Sayles v. Smith, 12 Wend. 57. The prohibition of the statutes of this State, relative to the 89 706 DEFENSES. Sunday laws. observance of the Sabbath, and against exposing goods and chattels for sale on that day, extends to those cases only in which there is a public exposure of the commodities for sale in the streets or stores, shops, warehouses, or market-places ; and it has no reference to mere private contracts for the sale of personal property, which are made without violating or tending to produce a violation of the public order and solemnity of that day. Boynton v. Pa^e, 13 "Wend. 425. And see Drury v. Defontaine, 1 Taunt. 131 ; Bloxsome v. Williams, 3 Bam. & Cress. 232 ; Batsford v. Eoery, 44 Barb. 618. And, therefore, a mere private sale of such property on that day is as valid as a sale on a week day. lb. In Fennell v. Ridler, 5 Bam. & Cress. 406, it was held that a horse dealer conld not maintain an action upon contract for a breach of warranty made on Sunday upon a sale of a horse. But the English statute is materially different from ours, and the decision was founded upon the language of the statute. This statute, after prohibiting vari- ous other acts, declares that no tradesman, artificer, workman, laborer or other person whatever shall do or exercise any worldly hibor, husi- ?iess, or worh of their ordinary callings, etc. It will be observed that this statute forbids the transaction of any worldly business, which our statute omits. Ante, 704. In a case in this State it was held that the sale of a horse on Sunday was not void under our statute, unless it was made affirmatively to appear that the animal was publicly exposed for sale in violation of the statute. Batsford v. Emery, 44 Barb. 618 ; Miller v. Eoessler, 4 E. D. Smith, 234. In the case last cited it appeared that the sale was concluded on a Sunday in a drug store, in New York city, but there was no evidence that the horse was shown at the time of the sale. And, although it appeared that the parties drove the horse on the day of the sale, there was no evidence as to the object of the drive, nor that it was accompanied or followed by any negotiation, and this was held to be insufficient to invalidate the contract. And see Qreenhury v. Wilkins, 9 Abb. 206, note. In an action against a bailee for negligently using a chattel and injur- ing it, it will not be any defense that the contract of hiring was made on Sunday. Harrison v. Marshall, 4 E. D. Smith, 271, 272. The court said : " The action, however, is not for the proceeds of the hir- ing, but for damages for a wrong done, and for such wrong I suppose the plaintiffs may recover, although they could not recover the price agreed to be paid for the hiring." The compromise or settlement of an action will be valid although DEFENSES. 707 Contracts tending to promote prostitution, etc. made on Sunday. Shank v. Shoemaker, 18 N. Y. 489. If prop- erty is exposed to imminent danger, it is not a violation of the statute prohibiting labor on the Sabbath, to preserve it on Sunday, and remove it to a place of safety. Parmelee v. Wilks, 22 Barb. 540. As to a carrier's contract which is made on Sunday, see Vol. I, 626. In an action to recover damages for an injury to the person of the plaintiff, by an unlawful and malicious act of the defendant, it is neither a defense nor matter in mitigation that the plaintiff was en gaged in an unlawful game upon the Sabbath at the time of the injury. Mchberr'y v. Levielle, 2 Hilt. 40. The statute forbids the transaction of business by courts on Sunday. Yol. I, 105, § 6. Sunday, in this State, commences and ends at midnight. Pulling V. People, 8 Barb. 384. Contracts tending to promote prostitution, etc. All contracts which have for their object the promotion of fornication or prostitu- tion are absolutely null and void, as being contra honos mores. If, therefore, a man gives a woman a bond, covenant, promissory note, or any other security for the payment of money, in order to induce her to commit fornication or to live with him in a state of concubinage or prostitution, the contract or security is entirely void, and no action can be maintained upon it. Robinson v. Vox, 9 Mod. 263 ; Walker v. Perkins, 3 Burr. 1568. But there is no immorality or illegality in providing for a woman with whom a man has been previously living in a state of concubinage and prostitution. If, therefore, a man cov- enants to pay an annuity to a woman in consideration of past cohabi- tation, or gives her a bond to secure to her the payment of money for her support, or the support of her children, the contract is valid, and an action may be maintained upon it. Gibson v. Dickie, 3 M. & S. 463 ; Turner v. Yaughan, 2 Wils. 339 ; Nye v. Moseley, 6 Barn. & Cress. 133. But if it appears that the bond or covenant was given for the purpose of inducing the woman to continue to live in a state of pros- titution, or to continue a life of prostitution and fornication, it will be void. Friend v. Harrison, 2 Carr. & Payne, 584 ; Trovinger v. Mc- Burney, 5 Cow. 253. Every such contract or engagement, however, which is intended to secure the payment of money, or to make provis- ion for past cohabitation or seduction, must be by deed or instrument under seal, because the consideration arising from past seduction or prostitution is not sufficient to support an action, even upon an express promise, made orally, or by an instrument not under seal. Beaumont V. Reeve, 8 Ad. & El. (N. S.) 483 ; Binnington v. Wallis, 4 Barn. & 708 DEFENSES. Contracts tending to promote prostitution, etc. Aid. 650. And see Fisher v. Bridges, 3 EU. & Bl. 650. But where the defendant acknowledged himself to be the father of an illegitimate child, which was the issue of a carnal intercourse between the plaintiff and the defendant, and the defendant promised by a letter to pay to the mother a specified annuity if she would maintain the child and keep their connection a secret, it was held that the maintenance of the child was a sufficient consideration to sustain an action for the recovery of the annuity. Jennings v. Brown, 9 Mees. & Wels. 496, 501. The court said : " The father might have had the child affiliated on him, and the consideration must be understood to be for ordinary provision. "We think that a sufficient consideration." See, also, Hook v. Pratt, 78 K y. 371 ; S. C, 34 Am. Eep. 539. And see Vol. I, 254, 257. In some of the cases it is held that a woman who has been seduced may main- tain an action upon a bond or sealed instrument which is given as a satisfaction for the injury, or as a provision for her, while no action would lie upon a promissory note or other unsealed instrument ; and the reason assigned is, that a bond or covenant is under seal, which im- plies a consideration. But, in this State, a sealed instrument may be impeached for want of consideration, precisely like an instrument not under seal. Vol. I, 129, 189, 210. "Whether an action would lie upon a bond in such a case, under our statute, if the proof showed clearly that there was no consideration but the past seduction, does not appear to have been decided. It is settled that the evidence would have to be clear and full that no other con- sideration existed, if the presumption arising from the seal is to be successfully rebutted. Childs v. Barnuin, 11 Barb. 14. A promise of marriage in consideration that the promisee should before marriage have sexual connection with the promisor, is void. ■ Hanks v. Naglee, 54 Cal. 51 ; S. C, 35 Am. Eep. 67 ; Steinfelt v. Levy, 16 Abb. (N. S.) 26. If a landlord, who has let lodgings to a woman, knowingly permits her to carry on the trade of prostitution under his roof, and does not take the earliest opportunity of evicting her and putting a stop to her trade, the courts will not give him any assistance for the recovery of his rent. Jennings v. Throgrnorton, E. & M. 251 ; Girardy v. Rich- ardson, 1 Esp. 13. But " a prostitute must have a lodging as well as any other people ; " and if she merely uses the lodgings to live in, and plies her trade else- where, the prostitution of her person upon other people's premises forms, of course, no answer to the landlord's claim for rent. Grisp v. Churchill, cited 1 Bos. & Pul. 340. To defeat an action for the price of silks, satins, and wearing ap- DEFENSES. 709 Contracts against public policy. parel, furnished to a prostitute, " it must not only be shown that the plaintiff knew that the defendant was a prostitute, but that he expec- ted to be paid from the profits of her prostitution, and that he sold the clothes to enable her to carry it on." Bowry v. Bennet, 1 Camp. 348. Where an action was brought for the charges of washing a variety of expensive dresses and numerous gentlemen's nightcaps, and it ap- peared that the dresses were used by the defendant for the purpose of enabling her to decoy gentlemen to her bed, and the nightcaps for those gentlemen to sleep in when she got them there, and the plaintiff was aware of the uses to which the dresses and nightcaps were applied, it was held that the plaintiff was nevertheless entitled to recover for the washing. " This unfortunate woman, " (the defendant) observed BaLLEE, J., " must have clean hnen, and it is impossible for the court to take into consideration which of the articles were used for an im- proper purpose and which were not. " Lloyd v. Johnson, 1 Bos. & Pul. 340. A shop-keeper or dealer cannot recover the price of immoral or obscene prints and libels sold by him. Fores v. Johnes, 4 Esp. 97. And a printer cannot maintain an action against a publisher for the price agreed to be paid for printing an indecent, libelous and immoral history, setting forth the amours and intrigues of a prostitute. Every servant and workman, " to the lowest, " knowingly engaged in putting forth such a work to the public, is prevented from suing for compensa- tion. Poplett v. StocJcdale, 2 Carr. & Payne, 200. And see Stockdals V. Onwhyn, 5 Bam. & Cress. 173. In an action by a tenant against a landlord to recover damages for a refusal to give possession of the demised premises, it is no defense that the plaintiff hired the premises with an intention of keeping a house of prostitution therein, if the landlord had no knowledge of such in- tention at the time of letting the premises. O'Brien v. Brietenbach, 1 Hilt. 304. And the mere avowal by the plaintiff that she intended to use the premises for such a purpose does not entitle the landlord to repudiate his contract. lb. Contracts against public policy. There are numerous instances in which contracts are held to be void, because their influence is calculated to interfere with great public rights or interests, or to have a tendency to corrupt public officers or to impair or destroy public morals. The law in relation to corrupting legislation has been stated sufficiently. Ante, 703. All contracts which have for their object a violation of the election laws will be void. And the rule is not limited to those cases in which officers are to be chosen by ballot ; for an agreement for a corrupt ap- 710 DEFENSES. Contracts against public policy. pointment to an office will be as invalid as that relating to an elective office. An agreement between two citizens, who are applicants for office, by which one stipulates to withdraw his application for appoint- n)ent so as to increase the chance of the appointment of the other, and tlie other stipulates to pay the former a portion of the emoluments of the office in consideration thereof, and of his aid in obtaining the office, is void, as against public policy, and no action can be maintained for the recovery of such share of the emoluments. Gray v. Hook, 4 N. T. 449 ; EoUnson v. Kalbfleisch, 5 Sup. Ct. (T. & C.) 212 ; S. C, 2 Hun, 683. The same construction has been put upon an agreement by a person named as executor in a will, made prior to the death of the testator, and contrary to his expressed wishes, by which, for a valuable consideration, he agrees to renounce the office. Staunton y. Parker, 19 Hun, 65. So, where a person receives a deputation to a public office which en- titles him by statute to a certain percentage upon the fees and emolu- ments of the office of his principal, and he, on receiving this appoint- ment, enters into an agreement to perform the duties of his office at a fixed salary, such agreement being in violation of the act against buy- ing and selling office, is void, although it is not certain that the stipula- ted sum would be less than the percentage allowed by law. Tajypan V. Brown, 9 Wend. 175. When such corrupt agreement has been en- tered into, although the duties of the office have been faithfully per- formed by the deputy, no actioa lies by him against his principal for the recovery of his portion of the fees and emoluments received by the principal. lb. But, in relation to sheriffs, there is no law regulating the amount of compensation which a deputy shall receive, and for that reason the sheriff may reserve out of the fees of the office such sum as he may deem proper, and agree to give the balance to a deputy, for his services, whicli will be a valid agreement. Mott v. Bobbins, 1 Hill, 21. But where a sheriff, on appointing a deputy, takes an agreement from him for the payment of a gross sum, which is not to come out of the profits of the office, the contract is void. lb. An agreement between the plaintiff and the defendants, by which the plaintiff undertook to attempt to procure from the treasury of the United States a return of duties which had been illegally exacted from the defendants by the collector of the port, for a share of the amount recovered, the plaintiff being at the time of rendering the services an officer in the custom-house, was held to be illegal and void, as imply- ing extortion, leading to abuse, and contrary to public policy. Satter- DEFENSES. 711 Contracts against public policy. lee V. Jones, 3 Duer, 102. A note given in consideration of a promise, by the payee, to use his influence with a city officer to procure a favor- able settlement of the maker's claims against the city, is void. Devlin V. Brady, 32 Barb. 518. There is no distinction in principle between a contract for the use of uiidue influence with members of a legislature and one for the same influence with directors of a corporation. And where the plaintiff was employed by the defendant's firm to procure from a railroad company a contract for building their road, and agreed to pay him for his services, if he should succeed ; but the plaintiff con- cealed his own agency, and procured the contract for the defendant's firm, through the influence of a third person with the directors of the company, while such third person was acting for the plaintiff, under an agreement for a pecuniary reward, it was held that the contract, if not from its terms, yet from the nature of the means that were to be used to influence the directors, was void, as contrary to morality and public policy. Da/oison v. Seymour, 1 Bosw. 88, 94. The court said of this contract : " There was in it most of those elements of a vicious con- tract, which have avoided similar obligations in the leading cases cited . There was secrecy, applications to individuals, a concealed promise of compensation, and utter ignorance and recklessness as to the compe- tency of the party whose cause he was promoting, and whose reward he was to receive." lb. An agreement between different sets of bidders for a public contract, by which one agrees, in consideration of a sum of money to be paid by the other, to withdraw his bid, and to assist the latter to obtain the con- tract, is against public policy, and no action will lie to recover back the money paid upon such contract. Sharp v. Wright, 35 Barb. 236. The rule is that agreements, which in their necessary operation upon the action of the parties to them, tend to restrain their natural rivalry and competition, and thus to result in the disadvantage of the public, are against the principles of sound public policy and are void. Atoheson V. Mallon, 43 N. Y. 147 ; S. C, 3 Am. Eep. 678 ; Mills v. Mills, 40 N. Y. 543 ; Oulioh v. Ward, 5 Halst. 87 ; Gardiner v. Morse, 25 Me. 140 ; People v. Lord, 6 Hun, 390. If an insolvent gives his note for the debt to his creditor, upon the understanding that such creditor is to sign the insolvent's petition, the note will be void, because it is against public policy and in fraud of the law. Payne v. Eden, 3 Caines, 213. And the rule is the same where the note of a third party is given in part payment of the debt. Teomans V. Chatterton, 9 Johns. 295. The defendant being indebted to the plaintiff and other creditors, in 712 DEFENSES. Contracts against public policy. order to induce the plaintifE to accept a composition, agreed to pay him an additional composition, which was secured by a bill of exchange drawn by the plaintiff upon, and accepted by, the defendant's brother. The bill being dishonored, and the plaintiff having threatened legal proceedings, the defendant, by indenture, assigned to the plaintiff a policy of insurance as a security for the payment of the bill, but it was held that the indenture was tainted with the illegality of the original transaction, and, therefore, could not be enforced. Oeere v. Mare, 2 riurlst. & Colt. 339. So, a note which is given by a debtor to his creditor, to induce him to withdraw opposition to his obtaining a discharge, is void in the hands of the payee, or of any holder without value, or with notice. Wiggin V. Bush, 12 Johns. 306. Such a note, being absolutely void, it cannot be revived by a subsequent promise. Payne v. Eden, 3 Gaines, 213. A promise by the defendant to pay the plaintiff the costs of a suit which he had settled, in consideration of the plaintiff's withdrawal of his opposition to the defendant's discharge under the insolvent act, is founded on an illegal consideration, and is void. Waite v. Harper, 2 Johns. 386. And the rule is the same where a bond is given by a third person to the creditor for the delivery to him of the debtor's notes, in case the debtor should be discharged. Bruce v. Lee, i Johns. 410. The seal does not preclude an inquiry into the consideration, and the fact that the bond was given by a third party makes no difference. lb. A bond which is given to the agent or attorney of creditors, who is opposing the granting of an insolvent debtor's discharge, in considera- tion of his promise to withdraw such opposition, is illegal and void. Tuxbury v. Miller, 19 Johns. 311. So a security given to a creditor of a bankrupt, in consideration of his withdrawing opposition to a dis- charge, is void, though the opposing creditors had valid claims to more than the amount of the note, and though the debtor had no knowledge that the note was given. Bell v. Leggett, 7 N. Y. 176. Such a trans action is against the policy of the bankrupt law and void. lb. An agreement which has for its object, or which tends to prevent competition at a sale on an execution, is against public policy and void. Thompson v. Davies, 13 Johns. 112 ; Jones v. Caswell, 3 Johns. Gas. 29 ; Hawley v. Cramer, 4 Cow. Y18. So, an agreement between judg- ment creditors not to bid at a sale for the foreclosure of a mortgage which is prior to their judgments is against public policy and void. Brackett v. Wymam, 4S IST. Y. 667. And a collusive arrangement to prevent competition at a judicial sale, to the prejudice of an infant, is a fraud at law, whether with or without the concurrence of the guardian DEFENSES. 713 Contracts against public policy. ad litem, and a sale in pursuance of such arrangement will be set aside. Howell v. Mills, 53 N . Y. 322. An agreement having the effect to prevent competition at a judicial sale is void as against public policy and incapable of ratification. Wheeler v. Wheeler, 5 Lans. 355. So of an agreement between two persons not to bid against each other at an auction sale. Doolin v. Ward, 6 Johns. 194. A contract for making a road was put up for sale at auction, and the plaintiff and defendant agreed that if the job should be bid off to either of them, it should be divided between them ; this was held to be illegal and void, and a judgment for a breacb of the contract was reversed. Wil- hur V. How, 8 Johns. 44:4. All contracts which tend to obstruct or to interfere with the admin- istration of public justice and of the laws are contrary to public policy, and utterly void. A promise or contract to pay a specified sum as liquidated damages, in the event that, in a suit then pending, the court shall fail to make an order, with a specified provision, affecting substantial interests, is con- trary to public policy, and therefore void. Oowdrey v. Carpenter, 19 Abb. 373. If the order stipulated for be such as it has been usual to make in like cases, then the contract is a wager, that, in the case covered by the contract, the court will decide in a particular manner, and such a contract is void. lb. An agreement by which a person is to be paid a stipulated sum for giving testimony, on the condition that it leads to the termination of a suit favorably to the other contracting party, who is a party to such suit, is illegal and void. Pollah v. Gregory, 9 Bosw. 116. But an agreement vsdth one jointly indicted with others, that in case he will testify fully and candidly, the facts will be presented to the court, with a recommendation by the pubKc prosecutor that a nolle prosequi be entered as to him, is not against public policy. NicTcelson v. Wilson, 60 N. T. 362 ; reversing S. 0., 1 Hun, 615 ; 4 Sup. Ct. (T. & C.) 105. An agreement to pay money as an inducement to a person to sup- press evidence, or to give evidence on one side only, or not to appear as a witness in a civil action or a criminal proceeding or action, is abso- lutely void. Collins v. Blantern, 2 Wils. 347. So of an agreement for compounding a felony ; and where money was paid for the pur- pose of compounding a prosecution for a supposed felony, it was held that it could not be recovered back. Baimouth v. Bennett, 15 Barb. 541 ; Haynes v. Rudd, 83 N. Y. 251. And where notes were given in pursuance of a contract that they should be deposited with a 714 DEFENSES. Acts or sales by unlicensed persons. third person until certain prosecutions against one of the parties should be " discontinued," and that the payee should not cause the arrest of the party " on any process whatever," and should " cease all proceed- ings against him," it was held that such notes were void, as having been made in consideration of an obstruction of public justice. Porter V. Ha/vens, 37 Barb. 343. And it will not make any difference to the case, that the payee had commenced civil as well as criminal proceed- ings against such maker of the note. lb. So, too, it is immaterial whether the agreement was carried out or not, since it is the corrupt intent which vitiates the contract. lb. A person was arrested and committed to jail on the charge of obtaining money under false pre- tenses. Before his examination several persons agreed with the com- plainant to give him their note for the amount of his claim, including constable's fees and some items the accused owed other parties which the claimant was to assume, and have the prisoner released so that he could go to work and pay up the note. This arrangement was carried out. In an action on the note it was held that the note was void for the reason that it was given to settle or compound a crime, and to abandon a pending criminal prosecution ; and that it was not necessary for the defendants to prove that the complainant, in terms, agreed to compound the crime, so long as it appeared that such was the intention of the parties, and the agreement was such as to carry out that intent. Conderman v. TreTiohard, 40 How. 71 ; S. C, 58 Barb. 165 ; 3 Lans. 108. There are cases, however, in which there may be a compromise of an assault and battery, or other misdemeanor, when the party has a remedy by a civil action, and he acknowledges satisfaction in writing. 3 E. S. 1021, § 70, 5th ed. Acts or sales by unlicensed persons. There are several statutes which require that a license shall be obtained before a party can le- gally perform certain specified acts, or discharge the duties of particular professions. Some of these statutes have been sufficiently noticed. See ante, 368. There were, at one time, certain provisions in the stat- utes of the United States requiring persons carrying on a trade, business or profession to take out a hcense under certain specified penalties. These statutes were intended to provide internal revenue to support the government, and to pay interest on the public debt and have been subsequently repealed. An examination of the cases de- cided under these and similar statutes would be of little value to a justice of the peace or to an attorney practicing before him, and are therefore, omitted. The excise law of this State is not a mere revenue act, but is in- DEFENSES. 715 Usurious agreements or contracts. tended as a protection against the consequences of an unlimited traffic in strong liquors, and, therefore, one who sells liquor without a license, in violation of the excise law, cannot recover against the purchaser. Oriffiih V. Wells, 3 Denio, 226 ; Turck v. Eichmond, 13 Barb. 583. In a civil action to recover the price of liquors sold to the defendant, the plaintiif need not produce a license in the first instance, as the ex- istence of a license will be presumed. Smith v. Joyce, 12 Barb. 21. On an indictment the rule is otherwise, and the defendant must show a license if he relies upon that as a defense. lb. A party who sues for an injury to a business which cannot lawfully be carried on without a license must prove that he had a license at the time of the alleged injury, or he cannot recover. Kane v. Johnston, 9 Bosw. 154. Where a licensed lessee of a hotel agrees to lease the bar to a third party, and to sell him the right of selling liquor under such lessee's license, the agreement is illegal and void, and a note given by such third person, in pursuance of such agreement, is also void and cannot be enforced by action. Sanderson v, Ooodrich, 46 Barb. 616. A party who takes such a note with full knowledge of the facts cannot main- tain an action upon it. lb. A pilot who is not licensed according to the laws of this State can- not recover a penalty of a master of a vessel who refuses to accept his services as the first pilot offering his services. Hopkins v. Wycko^, 1 Daly, 176. When the law requires every person to obtain a license if he prac- tices any profession, or carries on any trade or business, and imposes a penalty for a violation of the law by carrying on such trade or busi- ness, or exercising such profession without being duly licensed, it will be presumed, in every action by such person to recover compensation for his services, that he has duly complied with the law ; and, there- fore, he need not, in the first instance, produce any license therefor. MoPherson v. CheadeU, 24 Wend. 15 ; Pearce v. Whale, 5 Barn. & Cress. 38. And see Sissons v. Dixon, id. 758 ; ante, 369. Usurioaa agreements or contracts. Usury is frequently interposed as a defense to . actions upon written instruments, such as bills, notes, bonds, and the like ; and the law on the subject is generally treated of under the head of defenses. But a very full examination of the sub- ject in a previous part of this work renders any further discussion unnecessary. See ante, 156 to 189. Violation of statutes. Where a contract which a plaintiff seeks to enforce is expressly, or by implication, forbidden by a statute, no court 716 DEFENSES. Contracts in violation of statutes. will lend its assistance to give it effect. Lomgton v. Hughes, 1 M. & S. 596 ; De Begins v. Armistead, 10 Bing. 110 ; Wetherell v. Jones, 3 B. & Ad. 226 ; Cope v. Rowlands, 2 Mees. & Wels. 157 ; Norivich v. Wew Berlin, 18 Johns. 382 ; Seneca County Bank v. Lamb, 26 Barb. 595; New Yorh Trust and Loan Co. v. Helmer, 12 Hun, 35; Mul- laly V. Mayor, 3 id. 661; S. C. 6 Sup. Ct. (T. & C.) 168; affirmed, 62 JSr. T. 636 ; Swords v. Owen, 43 How. 176 ; S. C. 2 Jones & Sp. 277. All contracts which are made in violation of a statute, or which have for their object the violation of a statute, are void ; and it makes no difEerence whether it is the consideration of the agreement, or the act agreed to be done, which contravenes the provisions of the statute. Harris v. Runnels, 12 How. (U. S.) 83. And where the contract sought to be enforced arises out of a violar tion of the statutes of the State, the court will leave the parties to si;ch a contract precisely where it finds them, and will not aid either of them in enforcing it. Seneca Co. BanTc v. Lamb, 26 Barb. 595 ; Tyle^ v. Yates, 3 id. 228. A conti'act which is expressly within the prohi- bition of a statute is void although the statute is only prohibitory in its terms, and does not declare in so many words that all contracts therein forbidden shall be void. Barton v. Rort Jackson, etc., P. R. Co., 17 Barb. 397 ; Best v. Bauder, 29 How. 489 ; Woods v. Armst/rong, 54 Ala. 150 ; S. C, 25 Am. Rep. 671 ; Foster v. Taylor, 3 ISTev. & Mann. 244 ; Bank of U. S. v. Owens, 2 Pet. 527. And where a statute prohibits the directors of a plankroad com- pany from being concerned in any contract for the making or the work- ing of the road, or any part thereof, any contract made between a plankroad company and a portion of its directors, for the construction of a part of the road by such directors, will be absolutely void. Barton V. Port Jackson, etc., P- R. Co., 17 Barb. 397. A sale of lands, which, at the time of the execution of the deed, are in the actual possession of another person who claims title thereto, is void by statute. Pepper v. Haight, 20 Barb. 429. A mortgage given for the purchase-money, in such a case, is absolutely void. lb.; Whit- aker v. Cone, 2 Johns. Cas. 58. Where the consideration of a con- tract is morally good, but the contract is made in violation of a statute prohibiting such agreements, a repeal of the prohibitory statute will render the contract valid. Central Bank v. Empire Stone Dressing Co., 26 Barb. 24. And where a statute prohibited the circulation of bank notes or bills of a denomination of less than $5, and a contract was made in violation of the statute, it was held that a repeal of the DEFENSES. 717 Divisible contracts, part beiug good and part bad. prohibitory statute rendered the contract valid. lb. And see Curtis V, Zeavitt, 15 N. Y. 9. Diyisible contracts, part being good and part bad. Where there are both legal and illegal considerations for the same entire promise or contract, the general rule is, that the whole contract is void. And if there is an entire consideration for two several contracts, and one of these contracts is for the performance of an illegal act, the whole is void. But if there are several considerations for separate and distinct contracts, and one is good and the other bad, the one may stand and be enforced although the other fails. The invalidity of the one will not necessarily induce the destruction of the other. And in this State the rule is, that if the good is mixed with the bad it shall nevertheless stand, provided a separation can be made ; and the exceptions to this rule are : 1. Where a statute, by its express terms, declares the whole deed or contract void, on account of some provision which is unlawful ; or, 2. Where there is some all-pervading vice, such as fraud, which is - condemned by the common law, and avoids all parts of the transaction, because all are alike infected. Curtis v. Leavitt, 15 IN". Y. 9 ; Merrill V. Agricultural Ins. Co., 73 id. 452, 466. And see Yol. I, 207. Where the law declares a contract entirely void, it enforces the rule to its utmost limits. And, therefore, if the original contract is void for illegality, any new contract which seeks to carry out any of its provis- ions is also void, although the new contract is founded upon a new, further, distinct and valid consideration. Gray v. Hook, 4 N. Y. 449. And where G. and H. were both applicants for an office, and they mu- tually agreed that H. should withdraw and use his influence in behalf of G. and that they would mutually divide the emoluments of the of- fice; and under this arrangement G. was appointed, and on his giving H. a note for a sum due under the illegal agreement, he required from H. a covenant to pay one-half of the expenses of a suit agaiust G. touching his right to the office ; and it was held that this covenant was void. lb. The courts will attempt the separation of the good consideration from that which is illegal, only in those cases where the party seeking to enforce the contract is not the wrong-doer, or the denial of relief would benefit the guilty party at the expense of the innocent. Saratoga 'County Banh v. King, 44 IST. Y. 87. If a contract contains cov- enants which are void because in restraint of trade, and these enter into ' and form a part of the entire consideration, the contract will be held wholly void as between parties equally in fault as to those covenants. If the illegal consideration appears upon the face of the contract, an 718 DEFENSES. Divisible contracts, part being good and part bad. assignee of one of the parties will be in no better position than the party himself. lb. There may be cases in which a valid contract is not avoided by a con- temporaneous void agreement. And where a written sealed agreement is executed, and on the same day the parties make a supplementary agree- ment on a separate paper, but not under seal, which refers to the sealed instrument as executed by them, and this second agreement contains il- legal provisions, the contracts will be held to be severable, and the prior one will be valid, while the subsequent one will be void. Ogden v. Barker, 18 Johns. 87. So, one who borrows money which was obtained by the lender by an illegal transaction cannot resist payment on the ground of that illegal- ity, if that transaction was fully ended before the loan and not con- nected with it. Hamilton v. Oanfield, 2 Hall, 526. The fact that one party has mere knowledge of an illegal intent on the part of the other is not such a guilty participation in the subse- quent illegal act of the other as will deprive the former of his remedy. Thus the vendor of stocks to a corporation, who has knowledge that the corporation purchase for the purpose of selling again as a specular tion, contrary to a prohibition in their charter, may recover the value of the stocks on an implied assumpsit. Tracy v. Talmadge, 14: N. Y. 162; Curtis v. Leavitt, 15 id. 9. It would be otherwise, how- ever, if the contract provided for the illegal use of the stocks, or if the vendor did any thing beyond the sale in furtherance of it. lb. So where a vendor sells property in the ordinary course of his business, a bare knowledge on his part that the buyer intends to put the goods to an illegal use, which intention may or may not be carried out, will not vitiate the sale, or deprive the vendor of all remedy for the purchase- money. Kreiss v. Seligman, 8 Barb. 439. But where a party sells goods or advances money to another with a knowledge of a design on the part of the latter to put the goods or his money to an unlawful use, and he does any act whatever beyond the bare sale, etc., in aid or fur- therance of the unlawful object, he cannot recover. lb. ; Ruckman v. Bryan, 3 Denio, 340 ; Morgan v. Oroff, 5 id. 364. And see ante, 377. A contract is void when it depends upon a statute which is itself un- constitutional and void. Newell v. People, 7 IST. T. 9 ; Sherman v. Barnard, 19 Barb. 291. If a contract is not only void but is also illegal, no recovery can be had for the value parted with on such contract. Peck v. Burr 6 Seld. 294; Rose v. Truax, 21 Barb. 361. But where although the contract is void it is not illegal, as where there is a mere parol agreement for DEFENSES. 719 Impossible contracts. the purchase of land, which is to be paid for by the rendition of per- sonal services, here if the vendor refuses to convey, the laborer may recover the value of his services upon a quantum meruit. King v. Brown, 2 HiU, 485. And see cmte, 279, 280. The right to object to the illegality of a transaction is not confined solely to the parties to the illegal agreement. A third person, whose obligation was valid in its inception, and against which there could be no valid defense while in the hands of a hona fide holder, may defend himself on the ground of the illegality through which the plaintiff de- rives his title. Dewitt v. Brisbarve, 16 JST. T. 508, 513 ; Johnson v. Bush, 3 Barb. Ch. 207. § 11. Impossible contracts. General principles. Nothing is more familiar legal learning than the general rule that parties must , perform their contracts or respond in damages for their nonperform ance. And yet there are several exceptions to this general rule. Among others is the rule which excuses performance of a contract when that is physically impossible, or when it is prevented by the act of God, or by some act of the law. But, while there are cases in which such matters may excuse performance, the courts generally re- quire that a case shall be clearly brought within the rule before the excuse is permitted to operate as a defense to an action for the non- performance of a deliberate agreement. Act of God. There are eases in which causes beyond human con- trol intervene to prevent the performance of a contract which seemed possible at the time when the agreement was made. In such cases, when the cause does not arise from the act of man, it is generally termed the act of God. When the performance of an agreement becomes impossible by the act of God, that is, by a cause -which could not possibly be attributed to the promisor, and this impossibility was not among the probable contingencies which a prudent man should have foreseen and provided for, this will generally constitute a sufficient legal defense. Worth v. Edmonds, 52 Barb. 40 ; Scully v. Kirkpatrich, 79 Penn. St. 324 ; S. 0., 21 Am. Rep. 62. But to make the act of God a defense, it mtist amount to an impos- sibility of performance by the promisor ; mere hardship or difficulty will not constitute a defense. The non-performance of a contract is not excused by the act of God, where it may be substantially carried into effect, although the act of God makes a literal and precise performance impossible. Williams v. YanderUlt, 28 N". T. 217; affirming S. C, 29 Barb. 491. Where a 720 DEFENSES. Impossible contracts. — Act of God. common carrier of passengers agrees to carry a passenger from one place to another distant place, by a particular vessel, and that vessel is not in existence at the time, it having been destroyed, without the car- rier's knowledge, by being wrecked, this loss, if considered as an act of God, will not excuse the carrier from performing his contract, which was, substantially, that he M-ould carry the passenger ; and, as this may be done by another vessel, the carrier is bound to use due dili- gence in procuring another vessel for carrying the plaintiff ; and, for that purpose, he must use all the means that a diligent, careful man exercises in regard to his own affairs, and if he neglects to do this, he will be liable to the passenger for the resulting damages. lb. By the " act of God " is meant something which operates without any aid or interference from man. "When the loss is occasioned, or is the result in any degree of human aid or interference, the case does not fall within the exceptions of a carrier's liability. Merritt v. Earle, 29 N. Y. 115. See Mynard v. Syracuse, eto., B. E. Co., 71 id. 180, 187 ; Worth v. Edmonds, 52 Barb. 40, 43 ; liedpath v. Vaughrv, id. 489 ; S. C, affirmed, 48 K Y. 655. Where sureties enter into a recognizance for the appearance of a party in court at a specified time, and the party dies before that day, the sureties will be discharged. People y. Manning, 8 Cow. 297. See People V. Tubbs, 37 N. Y. 586 ; Scully v. EirhpaVrick, 79 Penn. St. 324 ; S. G. 21 Am. Eep. 62 ; Steelman v. Mattix, 9 Vroom (N. J.), 247 ; S. 0., 20 Am. Eep. 389, 393. Formerly, when a living animal had been taken by virtue of a re- plevin process and there was a judgment for the return of the property which was not complied with, it was a good defense to an action on the replevin bond for a breach of its condition, that the animal died be- fore the judgment in the replevin action without fault of the party who replevied it. Carpenter v. Stevens, 12 Wend. 589. But this has been changed by statute. Code of Civil Procedure, § 1735 ; Vol. I, 25. Fires and floods are not usually considered any excuse for the non- performance of a contract. See Booth v. Spuyten Duyvil Rolling Mill Co., 60 N. Y. 487 ; Sacon v. Coll, 45 111. 47; Steele v. BucJc, 61 id. 343 ; S. C, 14 Am. Eep. 60. A tenant who covenants generally to repair is bound to rebuild if the house is burned by an accidental fire. Bullock v. Dommitt, 6 Term Eep. 650. And see Vol. I, 351. So where there is a covenant to build a bridge in a substantial man ner, and to keep it in repair for a specified time, the party covenanting is bound to rebuild the bridge, although it was broken down by an un- DEFENSES. 721 Act of law, or legal impossibility. usual and extraordinary flood. Jirecknoch, etc., Oo. v. PritcJiard, 6 Term Eep. Y50. The principle upon which a habihty exists in such cases is that if a party, by his own express contract, creates a duty or a charge upon him- self, he is bound to make it good if he can, notwithstanding any acci- dent by inevitable neccessity ; for if he had chosen to guard against any loss of this kind, he should introduce it into the contract by way of exception, and, accordingly, an exception of accidents by fire and tempests is now usually introduced into leases, in order to protect the lessee. And see Yol. I, 351. Common carriers are legally bound to carry goods in most instances. Vol. I, 616. And their liabilities extend to every case except the act of God or of public enemies. Yol. I, 626. But where the loss or damage arises from the act of God, as by storms, tempests, and the like, the loss falls upon the owner and not upon the carrier. Amies v. Stevens, 1 Strange, 128 ; Trent Navigation v. Wood, 3 Esp. 127 ; Forwa/rd v. Pittard, 1 Term Eep. 2T, 33 ; Boss v. Bill, 2 C. B. 890. Act of the law, or legal impossibility. There are cases in which a contract was entirely legal in all its terms and conditions at the time of its execution ; but some subsequent act of the legislature renders the performance of it illegal, or it causes the consideration to become illegal, and therefore void. In such cases the statute repeals the covenant so far as it relates to the illegal portion of it, and the party is not bound to perform it. Brewster v. Kitchell, 1 Salk. 198 ; Doe d. Ma/rquis of AngleseaY. Church-wardens of Bugeley, 6 Q. B. 107, 114. See, also, Doe d. Gramtley v. Butcher, id. 115, note a. But, if a man covenants not to do a thing which was then unlawful, and an act then comes and makes it lawful to do it, such act of the legislature does not repeal the covenant. lb. Where existing laws pre- vent the legal possibility of the performance of a contract by some particular persons, they must be careful and not agree to do what is a legal impossibility on their pai't ; and if they neglect this precaution, they must abide the consequences. If the performance of the covenant is within the possibility of performance, however improbable or absurd it may be, the covenant will be upheld. To excuse non-performance it must appear that the thing to be done cannot by any means be ac- complished. And where the defendant covenanted to perfect a patent right in England for the plaintiff's benefit, it was held that the fact that, under the British statute, this could not be done, did not excuse him, it not being shown that it could not be effected by an act of parlia- 722 DEFENSES. Physical impossibility of performance. ment. Beebe v. Johnson, 19 Wend. 500. And see Paradine v. Jane, Aleyn, 27 ; Beale v. Thompson, 3 Bos. & Pnl. 420. Where a contract is entered into in pursuance of the terms of a statute which authorizes it, and before the completion of the contract the statute is repealed, this will absolve the parties from a further performance. Jones v. Judd, 4 N. T. 411. And where, by the terms of such a contract for work and labor, the full price is not to be paid until the work is completed, and a complete performance becomes impossible in consequence of the repeal of such law, the con- tractor may recover for the work actually done at the full prices agreed on. lb. When the performance of the condition of a bond becomes impossible by act of law, the default is excused. And where a bond was given for the appearance of A. at the next general sessions of the county of L., to answer an indictment, etc., and intermediate the date of the bond and the sitting of the court A. was arrested and committed to the jail of another county, and kept in confinement until after the day for appearance, this was held to be a good defense to an action upon the bond. People v. Bartlett, 3 Hill, 570. Where a surety enters into a recognizance for the appearance at court of a principal, to answer an indictment, and subsequently the principal voluntarily enlists as a soldier in the United States army, where he is detained by military authority when the recognizance is called and forfeited, the surety is not liable upon his recognizance. People V. CooJc, 30 How. 110 ; People v. Cushney, 44 Barb. 118. The act of the law which will excuse a failure to comply with the terms of a bail bond must be the act of a law operative in the State where the obligation was assumed, and obligatory in its effect upon her authori- ties. Taylor v. Taintor, 16 Wall. 366. Therefore the detention of the principal in the recognizance in another State is no defense to an action on the bond. When a covenant is legally senseless and impossible, no action will lie upon it, as where (1 covenants to pay a sum of money to A., B., and himself C, or the survivor or survivors of them. Faulkner v. Lowe, 2 Exch. 595. In such a case the covenant provides for the pay- ment of money by a man to himself, which is said to be a legal impos- sibility, lb. The covenant is not to pay A., B. or C, but to pay A., B. and C. on their joint account. lb. Physical impossibility. Few contracts are made when the parties know that its performance is an utter impossibility. But if such an agreement should be made, and the impossibility of the performance is not only certain but perfectly obvious to the promisor, such contract DEFENSES. 723 Physical impossibility of performance. will be absolutely void for its inherent absurdity. Illustrations of such contracts would be, to build a fine large building in a single day, or to cross the Atlantic, or to go from New York to San Francisco in a day. But there are numerous instances in which the performance of a contract b}' the promisor becomes impossible to him, and yet he is held liable for the non-performance. Except in such instances as have just been specified, the general rule or principle of law is, that whenever a party enters into an absolute and unqualified contract to do some particular act, the impossibility of performance occasioned by inevitable accident, or some unforeseen occurrence over which he had no control, will not release him from the obligation of his contract, because the casualty or accident might have been provided against by the contract. And where the defendant agreed to transport merchan- dise from the city of New York and to deliver it at Independence, in Missouri, in twenty-six days, which he failed to accomplish within that time, it was held that the fact that a public canal, upon which the goods were intended to be transported a part of the distance, was ren- dered impassable by an unusual freshet, and that this occasioned the detention, was no legal excuse therefor. Harmony v. Bingham, 12 N; Y. 99. And so, if a party has covenanted and agreed to ship any particular sort of cargo, such as a cargo of guano, a cargo of corn, or of timber, on board a vessel at a specified port, the circumstance that no guano, corn or timber was to be procured at that port, or that its exportation had been prohibited by a foreign government, or that the loading of it on board was prevented by an embargo, or an infectious disorder, will constitute no answer to an action brought to recover damages for the non-performance of the contract. Sjoerds v. Lus- combe, 16 East, 201 ; Barker v. Hodgson, 3 M. & S. 267 ; Hills v. Sughrue, 15 Mees. & Wels. 261. So, where there is a contract to de- liver " prime " or " first-class " teas, it will be no defense to show that no such teas could be procured at the season of the year when they were to be delivered, because none were to be found in the market. Oilpins v. Consequa, 1 Peters' C. C. 86, 91. If the impossibihty of the performance has been occasioned by the act of a stranger, or by the act of the defendant himself, it consti- tutes no defense to an action. Thorribarrow Y.'Whitacre, 2 Ld. Raym. 1164 ; Hoohster v. De La Tour, 2 Ell. & Bl. 678 ; Warjield v. iVal- hinsj 30 Barb. 395. If a married man exchanges mutual promises of marriage with a single woman, it is no answer, to an action by the latter to recover dam- ages for non-performance, to set up the impossibility of performance, 724 DEFENSES. Higher security, merger, extinguisliinent etc. or the illegality of the second marriage, unless the fact of the existing marriage of the promisor was known to the woman at the time of the making of the contract, in which case it would be an illegal and void contract. Wild \. Harris, 7 C. B. 1005 ; Millward v. Littlewood, 5 Exch. 775 ; BlaUmacker v. Saal., 29 Barb. 22. When sickness or death renders the performance impossible, and when that is a sufficient excuse for the non-performance, see Vol. I, 234. § 12. Higher security, merger, extinguisliment, etc. In actions upon contracts, it is sometimes the case that a defense is interposed which insists that a subsequent agreement has been made between the parties which merges the original contract in it, or that the subsequent agreement is a substitute for it, or an extinguishment of it. And when the original contract has been merged in a subsequent one, or has been extinguished by it, no action can be maintained upon such origi- nal agreement. If, after a simple promise has been made, or a simple contract has been entered into, a new contract under seal is executed for the performance of the same act or duty as that stipulated for by the simple contract, the simple contract becomes merged in the higher security, and can no longer be enforced. If, therefore, a man borrows a sum of money, and gives a promise in writing to repay the money by a day named, and he afterward executes an obligation or bond un- der seal for the repayment of the same money, the simple promise in writing under hand is merged and extinguished. Schaoh v. Anthony, 1 M. & S. 573 ; Roosevelt v. MarTi, 6 Johns. Ch. 266. There cannot be a contract under seal, and a simple contract between the same parties for the payment of the same debt. There will be a merger of the simple contract, whether the parties wish it or not, for the two contracts are incompatible, and the higher must prevail. Price V. Moulton, 10 C. B. 561, 574. For instance, by the acceptance of a bond for a simple contract debt, such as an account, or a bill or note, or the like, the debt will merge in the higher security ; and if a cov- enant be entered into to pay a sum of money actually due, the remedy thenceforth must be upon the covenant, and not upon the original cause' of action. lb . It is said, however, that the specialty does not, strictly speaking, merge or extinguish the debt; but that it merges the remedy by way of proceeding upon the simple contract. lb. In order to trace out the full operation of the doctrine of merger, let us suppose that A., being indebted to B., in the sum of $100, for goods sold and delivered, accepts a bill of exchange drawn upon him by B., at a date certain for that amount, the effect of that transaction will be to suspend or postpone, until the bill falls due, B.'s right of ac- DEFENSES. 725 Higher security, merger, extinguisliment, etc. tion against A., in regard to the goods sold. Let us next suppose that the bill thus given is dishonored at maturity, and that B., in lieu of then proceeding against A., as he would be entitled to do, in respect either of this original demand or upon the bill, agrees to take A.'s bond in the penal sum of $200, conditioned for the payment to B. of $100 and interest thereupon, at some . future day. Now, if default be made in the payment thus secured, the only remedy at law available to B. against A. will be by an action upon the bond, his right of action, whether in respect of his original claim or of the bill, having become merged in and extinguished by the instrument under seal. To pursue this inquiry a step further, let us suppose that B. recovers judgment in an action upon the bond against A. , the sole mode of obtaining satisfac- tion from his debtor thenceforth available to B. will be upon the judgment in which the bond debt will itself have become merged. But, when a judgment is confessed by a mortgagor to the mort- gagee for the same debt secured by a chattel mortgage, the mortgage is not merged in or extinguished by the judgment, where the parties expressly agree that the judgment is taken as a collateral security. JButler V. Miller, 1 N. Y. 496 ; S. C, 5 Denio, 159. And see Day v. Leal, 14 Johns. 404. According to the common law of this State, a judgment against one of several joint debtors, obtained in an action against him alone, is a bar to an action against the others. It is held to be a bar upon the ground that, by the recovery of the judgment, the promise or cause of action, as to the party sued, has been merged and extinguished in the judgment by operation of law at the instance of the creditor. Suydam v. Barber, 18 IST. Y. 468, 470 ; Olmstead v. Webster, 8 id. 413 ; Peters v. Sanford, 1 Denio, 224 ; Pierce v. Kearney, 5 Hill, 82 ; Robertson v. Smith, 18 Johns. 459 ; Benson v. Paine, 9 Abb. 28. The principle that a judgment against one of several partners or joint debtors for a partnership or joint debt extinguishes that debt is not applicable to a case where one partner or joint debtor unites with a. third person in giving a note for such debt, which note, by agree- ment, is made and accepted by the creditor as a mere collateral security ; and in such a case a judgment on the note does not affect the original indebtedness, even as to the partner who signed it. Hawks v. Hinchcliff, 17 • Barb. 492 ; Butler v. Miller, 1 Comst. 496. And where, in an action on a judgment, the creditor recovers a second judgment for the amount of the first, and one which is of no liigher nature than the first, as when a judgment is obtained in a justice's court, upon a judgment rendered in a justice's court the latter judgment is 726 DEFENSES. Higher security, merger, extinguisliment, etc. no bar to a new action upon the first judgment, since it does not work any extinguishment. Andrews v. Smith, 9 Wend. 53 ; Mil- larg v. Whitaker, 5 Hill, 408. And the same rule is equally applicable to judgments in courts of record. Jackson v. Shaffer, 11 Johns. 513, As to the restrictions now imposed by statute upon frequent actions upon justice's judgments, see amte, 222. Where the securities are the same in nature and degree there is no merger, since the principle of merger is that a contract of an inferior degree is merged in one of a superior degree, as where a bond is taken to secure an ordinary account, or a bill or note. And if a party takes several securities of the same degree from the same person, there will not be any merger of the former securities by those given at a later period. Andrews v. Smith, 9 Wend. 53, 54 ; Millard v. Whittaker, 5 Hill, 408. Receiving a debtor's promissory note for his debt does not merge or extinguish the demand. And where a chattel mortgage is given to se- cure the payment of such note, the taking of a new chattel mortgage upon the same property will not extinguish the first mortgage. Hill V. Beebe, 13 IST. Y. 556; Gregory v. Thomas, 20 Wend. 17; Shider V. Boutwell, 18 Hun, 171. So taking a bond and mortgage as security for sealed notes will not extinguish them. Phelps v. Johnson, 8 Johns. 54, 58. A creditor has a right to take as many securities as his debtor is will- ing to give. And where a mortgagor, after the delivery of a chattel mortgage, gives his promissory notes for the same debt, the acceptance of such notes by the mortgagee is not a waiver of the mortgage secu- rity. Westcott V. Gunn, 4 Duer, 107. And see Oahn v. Niemcewicz, 11 Wend. 212 ; S. C, 3 Paige, 614. The holder of a note may take a mortgage of the maker as a security for the payment of the note, and this will not discharge an indorser of the note, if the time of payment is not extended. Artisans' Bank, v. Backus, 31 How. 242. Where a note is given upon a settlement and compromise between the parties, all anterior matters are merged in it. Leland v. Manning, 4 Hun, 7. But when a sum of money is secured by a deed and a bal- ance is struck for the purpose of ascertaining how much remains due thereon, and the obligor admits the correctness of the account and promises to pay it, an action will not lie on this account and promise, but the action must be brought on the security . A simple contract is merged in a bond, covenant or other contract by deed or record, but the greater security is not merged in the lesser. Young v. Hill, 67 DEFENSES. • 727 Higher security, merger, extinguisliment, etc. N. Y. 162 ; S. C, 23 Am. Eep. 99 ; Middleditch v. Ellis, 2 Exch. 623 ; Wood V. Edwards, 19 Johns. 205 ; Landis v. JJrio, 10 S. & R. 316; Oilson V. Stewart, 7 "Watts, 100 . There is one instance in which a sealed instrument does not merge or extinguish a simple parol contract. If the amount of the simple contract debt is entirely indefinite, and the bond or other sealed instrument is for a sum certain, and is taken as a collateral security, there will not be any merger of the simple contract debt. Day y. Zeal, 14 Johns. 404; Norfolk E. It. Co. v. MoNamara, 3 Exch. 628. And see Bank of Chenango v. Hyde, 4 Cow. 667 ; Jackson v. Shaffer, 11 Johns. 513. A bond and mortgage when given as collateral security for the pay- ment of a promissory note does not extinguish the note, even though there is a prodso against personal liability on the mortgage. AinsUe V. Wilson, 7 Cow. 662. So the acceptance of a mortgage or other collateral security for the payment of a debt neither satisfies the original demand, nor suspends the right of action to enforce it. Tag- gard v. Ourtenius, 15 "Wend. 155 ; Palmer v. Gurnsey, 7 id. 248. If a vendor, at the time of delivering a deed of lands, promises that if the vendee will accept the deed and pay the purchase-money, he, the vendor, will pay an assessment upon the premises when due, this agreement is not merged in the deed. Remington v. Palmer, 62 N. Y. 31. Nor would an agreement by the grantee to assume a mort- gage on the premises be merged in the deed. Taintor v. Hemming- way, 18 Hun, 458. See Barker v. Bradley, 42 N. Y; 316 ; Slawson V. Watkins, 2 Abb. N. C. 366, n.; Smith v. Holbrook, 1 Sheld. 474; Supervisors of Schenectady v. McQueen, 15 Hun, 551. When the debt of a principal is a mere simple contract debt, and a third person as a surety enters into a sealed covenant for the payment of such debt, this sealed instrument will not, by mere operation of law, extinguish the simple contract debt. White v. Cuyler, 6 Term E. 176 ; Hohnes v. Bell, 3 Man. & Grang. 213 ; Twopenny v. Young, 3 Barn. & Cress. 211. So, if one of two makers of a joint and sev- eral promissory note executes to the holder a mortgage to secure the amount, and covenants therein to pay it, the other maker is not dis- charged ; the remedy given by the specialty being confined to one of the debtors only, and, therefore, not co-extensive with that which the creditor had upon the note. Ansell v. Baker, 15 Q. , B. 20 ; Solly v. Forles, 2 Brod. & Bing. 38. Where a judgment is recovered in one of the courts of this State, upon a cause of action arising out of a tort, the judgment is a merger 728 • DEFENSES. Performance. — Prevention and dispensation. of the original cause of action, and tlie defendant cannot be arrested in an action upon such judgment. Ooodrich v. Dunbar, 17 Barb. 644 ; McBuU V. Hirsch, 4 Abb. 441 ; Mallory v. Leach, 14 Abb. 419, note ; S. 0. , 23 How. 507. As to tbe effect of a judgment rendered in an- other State, see Warner v. De Baun, 1 E. D. Smith, 261 ; Besley v. Palmer, 1 Hill, 482 ; Suydam v. Barber, 18 N. T. 468 ; Mahamey v. Penman,, 1 Abb. 34 ; Arthurian v. Dalley, 20 How. 311. § 13. Performance. Prevention and dispensation. It is a prin- ciple of law that he who prevents a thing from being done shall not avail himself of the non-performance which he himself has occa- sioned. Kingsley v. City of Brooklyn, 78 N". Y. 200 ; Hochstsr v. Be La Tour, 20 Eng. L. & Eq. 157, 160; S. C, 2 El. &B1. 678; Burtis V. Thompson, 42 N.T. 246. And where one party, bj doing a previous act, would acquire a right to any debt or duty, and the other party prevents him from doing it, he acquires the right as completely as though it had been actually done. Where there is a written contract for the performance of a particular job of work by a specified time, and the completion of the work is de- layed by making changes and alterations in the work at the request of the party for whose use and convenience the work is done, this will be such an extension of the time of performance as will relieve the con- tractor from damages for not completing the work within the specified time. Van Buskirk v. Stow, 42 Barb. 9. When one of two contracting parties so conducts himself as to hinder the performance of the contract by the other, or to subject the latter to an action at the suit of some third person, if he duly performs the contract, no action will lie for the non -performance. Europeama/nA Australian Royal Mail Go. v. Royal Mail Steam, Packet Co., 10 J. Scott (N. S.), 860. If one man is to pay money to another, upon an act being done, and the other is ready and offers to do the act, and the party hinders him, this is tantamount to performance, and the party acquires a complete right to the money, because it is a principle that he who prevents a thing from being done shall not avail himself of the non-performance which he has occasioned. Thus, where an agreement was entered into between the plaintiff and the defendant, that the plaintiff should pull down and prostrate the walls of three houses, and erect on the site thereof a malt-house and other buildings, and receive a certain sum of money for his pains, and the plaintiff showed that he was ready and offered to do the work, but that the defendant prevented him, it was held that the defendant DEFENSES. 729 Performance. — Prevention and dispensation. was bound to pay the money, and that he ought not to take advantage of his own wrong. Peters v. Opie, 1 Vent. 177 ; Qollins v. Price, 5 Bing. 132 ; Ferry v. Williams, 8 Taunt. 70. If the obligee of a bond has himself prevented the obligor from ful- filling the condition of the bond, he shall never take advantage of the non-performance of the condition, for that would be enabling him to benefit by his own wrong. Hay ward v. Benneit, 3 0. B. 423 ; Holme V. Oujppy, 3 Mees. & Wels. 389. And where a manufacturer, by a contract of sale, had agreed to manufacture and deliver to a purchaser certain goods and chattels by a day certain, and the purchaser, before the time appointed for the de- livery, told the manufacturer he need not manufacture them, as he had no occasion for them, and would not accept or pay for them, perform- ance by the manufacturer was held to have been prevented and dis- pensed with, for performance may be prevented by word of mouth as well as by downright physical force ; and it was held that the manu- facturer might, without making or tendering the goods, maintain an action against the purchaser for the breach of the contract, and that he was entitled to a verdict on an issue denying the allegations that he was ready and willing to perform the contract, but that the defendant re- fiised to accept the goods, and prevented and discharged the plaintiff from manufacturing and delivering them. Gort v. Amber gate, eta., R. R., 17 Q. B. 127; Ripley v. J!/cC^w7'e,4Exch. 345 ; Jones v. BarUey, 2 Doug. 684. And see Yol. I, 237-239. "Whenever one party has absolutely refused to perform, or has ren- dered himself incapable of performing his part of the contract, he puts it in the power of the other party, either to sue for a breach of it, or to treat the contract as rescinded or abandoned, and to sue on a quantum meruit, for the work actually done. De Bernardy v. Harding, 8 Exch. 822 ; Planche v. Golburn, 8 Bing. 14. Where two parties enter into a contract which is to be performed at a future day, and, before the day for performance arrives, one of them gives the other notice that he does not hold himself bound by it, the other is at liberty to treat such renunciation as a breach of the contract, without waiting the arrival of the day fixed for its performance. Danube and Black Sea, etc., R. R. Go. v. Xenos, 11 J. Scott (K S.), 152 ; Burtis v. Thompson, 42 N. Y. 246 ; Hochster v. De La Tom^, 2 El. & Bl. 678 ; Shaw v. Republic Life Ins. Go., 69 K Y. 289 ; How- ard y. Daly, 61 id. 362; S. C, 19 Am. Eep. 285. See Freer v. Denton, 61 N. Y. 492. 92 730 DEFENSES. Default in doing the first act. Default in doing the first act. Sometimes the performance of a contract by one party depends upon something which is to be previously done by the other ; and when it appears, from the terms of the agree- ment or the nature of the case, that the things to be done were not in- tended to be concurrent acts, but the performance of one party was to precede that of the other, then he who was to do the lirst act may be sued, although nothing has been done or offered by the other party. Morris v. Slite^ 1 Denio, 59 ; Meriden Britannia Go. v. Zingsen, 48 N. Y. 247 ; S. C, 8 Am. Eep. 549. But no action will lie in favor of the party who is to do the first act for non-performance of the contract by the other until he has put the other in default by performing his part of the contract or being ready and willing to perform it. Every possible condition which, according to the terms of the bargain, is in the nature or order of things precedent to be performed by the plaintiff, must be duly accomplished, or must be dispensed with on sufficient ground, before an action can be maintained ; for, when the action is brought, it must appear that the condition has been performed, if not literally, at least substantially, or that by reason of some default in the opposite party, the performance of the condition has been pre- vented, which dispenses with that performance. Yol. I, 216. Where chattels are purchased, and they are to be paid for on deUv- ery, the purchaser must tender the price and demand the chattels be- fore he can maintain an action against the vendor for not delivering the chattels. Aikin v. Davis, 45 Barb. 44. Where, by the express terms of a contract, it is to be performed " on notice" generally, or on some specific notice, it is indispensable to a right of action that such notice should have been duly given. Yyse v. Wakefield, 6 Mees. & Wels. 442; S.C., 7 id. 126. The same rule applies in those cases in which a demand is required by the terms of the contract, or by its legal construction. Cumulative and alternative stipulations. If a party engages to do two things, the one is cumulative upon the other, and he miist per- form both of the things agreed to be done ; but if the contract is in the alternative for the performance of one or the other of two different acts, the liability is discharged by the performance of one of the acts. Where the shareholders of an incorporated company neglect or refuse to pay such calls as are legally made, the company has an alternative remedy ; there may be a forfeiture of the shares of stock, or an action to recover the amount due. But if the corporation, in pursuance of this right of election, determines to forfeit the stock of a subscriber for the non-payment of calls, this forfeiture operates as a rescission of DEFENSES. 731 Cumulative and alternative stipulations. the contract, and after that time or act, no subsequent action can be maintained against such stockholder on his subscription. Small v. HerUmer Manuf. Co., 2 N. T. 330; Buffalo and W. T. City R. R. V. Dudley, 14 id. 336, 347. And see Vol. I, 471. Under an agreement to do one of two things, the right of election is in the party who is to do either the one or the other of the two things. Smith v. Sanhorn, 11 Johns. 59; Layton v. Pierce, 1 Doug. 16. And see Norton v. Wehh, 36 Me. 270. So if one contracts in the alternative to do one of two things by a certain day, he has until the day is past to elect which he will perform, but if he suffers the day to elapse without performing either, his contract is broken and his right of election lost. MoNitt v. Clarh, 7 Johns. 465 ; Choice v. Moseley, 1 Bailey, 136. If a vendor of corn agrees to deliver to the purchaser fifty or one hundred bushels of corn by a day named, at so much a bushel, and the purchaser agrees to pay the price on the delivery of the corn to him, the vendor will have to do the first act, and he will, therefore, have his election whether to deliver and demand payment for either the fifty or the one hundred bushels. Penny v. Porter, 2 East, 2. KnA see ante, 46. So if the defendant has bound himself to do otie of two things at the choice of the plaintiff, he must, in pleading the perform- ance of his engagement, show that he was ready and offered to do either of them. Therefore, if he is to deliver $500 or a span of horses, at the option of the plaintiff, he does not perform his contract by tendering the horses without the money. Fordlexfs Case, 1 Leon, 68 ; Chippendale v. Thurston, 4 Carr. & Payne, 98. If one branch of the alternative becomes impossible, so that the promisor has no longer an election, this does not destroy his obligation, unless the contract expressly so provides ; but he will then be bound to perform the other alternative. Stevens v. Wehh, 7 Carr. & Payne, 60. If goods are delivered to a party and received by him, on the terms of "sale or return," he who receives the goods must make his election to return them within a reasonable time ; and if the return is not thus made, the contract stands as an absolute sale. Ante, 23, 24. Time of performance. When the time of performance is not speci- fied by the contract, the thing must be done within a reasonable time. Sansom v. Rhodes, 6 Bing. N. 0. 261. And there may be a breach of the contract, even before the time fixed for its performance. If a man agrees to marry a particular female on or before a specified day, and before that time he marries another woman, he thus puts it out of liis power to perform his agreement, and he may be sued 732 DEFENSES. Time and mode of performance. at once for a breach of his agreement. Short v. Stone, 8 Q. B. 358 ; Lovelock V. FranMyn, id. 378 ; Ford v. Tiley, 6 Barn. & Cress. 325 ; Bowdell v. Pa/rsons, 10 East, 359. See Burtis v. Thompson, 42 N. T. 246 ; S. C, 1 Am. Eep. 516. The time for the perform- ance of some particular act or duty is frequently of the very essence of the contract, such as the time appointed for the sailing of a vessel, or for receiving cargo, or for efiEecting an insurance, or for the manu- facture and delivery of goods and chattels, or the conveyance or trans- fer of property, or for the commencement and completion of work, so that a person who has agreed to pay down a sum of money on per- formance by the time specified may, in case of non-performance, refuse payment ; and a person who has paid his money in advance may recover it back, and sue for damages, and refuse to accept perform- ance at any subsequent period. See Vol. I, 217, 593. The time of performance of a contract may be extended. But an extension of time for performance is not performance ; and where the contract has been modified in this particular, the party seeking to enforce the contract must show performance of the contract as modified, or that performance was excused in the same manner as if the action had been solely upon the original agreement. Wallman v. Society of Concord, 45 N. T. 485. A party to a contract may, however, waive a right to claim a forfeiture of the contract by permitting the other party to go on after the time limited has expired and expend time and money in its completion. Gallagher v. Nichols, 60 JST. Y. 438 ; S. C. 16 Abb. (K S.) 337. A contract to do a thing directly " does not mean that it is to be done instanter / but there must be no delay in performance, and such a con- tract requires a much more speedy fulfillment than a contract to do a thing within a reasonable time. Duncan v. Topham, 8 (J. B. 225. Mode of performance. A party who is bound by contract to do any act or thing may accomplish it in any manner that is most convenient and least burdensome to himself. Reade v. Meniaeff, 7 C. B. 162. But the performance itself must be a substantial honafide performance, in accordance with the true meaning of the parties, and not a mere compliance with the letter of the engagement, in violation of the spirit and intent of the compact. If a man enters into an engagement to de- liver up a lease or a bond, he does not fulfill his contract by returning it canceled, or with the seal torn ofE. Richardson v. Barnes, 4 Exch. 128. If payment is to be made, it must be a true and effectual pay- ment to the right party. If something is to be done according to the advice and direction of a third party, the party bound to do the act must procure the necessary advice and direction. If the concurrence DEFENSES. 733 Mode of performance. of a stranger is essential, he must procure such concurrence. If he is to deliver grain or property on board of a ship, at a particular port, on a specified day, he must go in search of the ship, and must not wait for notice that the ship is ready. When the contract is founded upon the personal skill and peculiar talents of one party, the latter cannot per- form the contract through the medium of an inferior agent. Vol. I, 599; Mondel v. Steel, 8 Mees. & Wels. 858 ; Rigge v. Burhridge, 15 id. 599 ; Bobson v. Drummond, 2 B. & Ad. 303. As to the skill required for a proper performance of a contract, see Vol. I, 599. Where there is an agreement to convey property, there must be a full and substantial performance of the contract. An agreement to convey lands by " a good and sufficient deed " is not performed when a deed is executed, which is good and legal in form, unless it also is legally sufficient to convey a good title to the property described in the deed. Pomeroy v. Drury, 14 Barb. 418 ; Fletcher v. Button, 4 !N. T. 396 ; Judson V. Wass, 11 Johns. 525 ; Clute v. Rdbison, 2 id. 595. Where the certificate of a third person is requisite upon the question of performance, such certificate must generally be procured. Yol. I, 224. Where a corporation agrees to pay for labor at a fixed time, in its own stock, and no place of payment is designated, the contract is to be performed at the office of the company, and they are not bound to seek the other party and make a tender of performance. Moore v. Hudson Rimer R. R. Co., 12 Barb. 156. A substantial performance of a contract is sufficient. And mere inadvertent and unimportant omissions or variances from the terms of the contract will not deprive the contractor of his right to compensation. Yol. I, 221 ; Sinclair v. Tallmadge, 35 Barb. 602 ; Olacius v. Black, 50 ]Sr. T. 145 ; S. C, 10 Am. Eep. 449 ; Phillips v. Oallamt, 62 ¥. Y. 256; Johnson v. De Peyster, 50 id. 666. The recovery may, however, be limited to the contract price, less the damages sustained by the other party by reason of the absence of a strict performance of the contract. Id. A contract to sell and deliver an article of a particular brand, where there is in fact no brand precisely like that specified, will be performed when the vendor delivers, or offers to deliver, an article with a brand having two of the names of the firm who made such article, if it is the article which the parties intended to contract for, and the question of intention is for the jury. Pollen v. Le Roy, 10 Bosw. 38 ; S. C affirmed, 30 N. Y. 550. A covenant to assign a bond and mortgage is satisfied by a delivery 734 DEFENSES. Excuses for non-performance. of an assignment thereof, with the bond attached, although without the mortgage, where the mortgage has been recorded and afterward lost. Clement v. Cash, 21 IST. Y. 253. It is to be observed, however, that the cases in which a substantial performance of a contract has been held sufficient to entitle a party to recover have, for the most part, been cases in which a builder has sought to recover the contract price of a building erected by him under a contract embracing many particulars which could not, without great difficulty, be complied with, with entire exactness. The rigor of the general rule has been relaxed in such cases. But parties may, by the terms of their agreement, render the right to payment depend on the literal performance of an act on the part of the person to receive it ; and when that appears to be the case, payment cannot be enforced without literal performance according to the terms of the agreement, if no dispensation of the condition be shown. OrayY, Gannon, 4 Hun, 57; S. C, 6 Sup. Ct. (T. &C.) 245. Excuses for non-performance. The law will generally furnish an excuse for the non-performance of any contract which it will not enforce on account of the illegality of its provisions. What contracts are illegal has been fully discussed. Ante, 694. So, when the act of God, of the law, or of the opposite party prevents performance, this will generally constitute a legal defense to an action for non-performance. Ante, 719. If the performance of a condition becomes impossible by the opera- tion and effect of a statute, that is, becomes illegal, the performance is excused, and the rights of the parties will be preserved. Shellington V. Rowland, 53 N. Y. 371 ; Gohen v. Mutual Life Ins. Co., 50 id. 610; Semms v. Hartford Ins. Co., 13 "Wall. 158; Sanger v. Abbott, 6 id. 532. The non-performance of a condition precedent by the plaintiff is also a successful defense, by furnishing an excuse for a neglect of perform- ance until the condition precedent has been performed. Yol. I, 217. Of part performance. Where there is a special contract which specffies that particular acts or things are to be done, it is a general rule that a part performance of the contract, by doing a part of the acts and leaving the rest unperformed, is not a legal performance of the contract. Yol. I, 222. There may, however, be a waiver of strict per- formance, and this may sometimes constitute a defense to an action for not performing the contract fully as originally agreed. Yol. 1, 236. And where there is but a partial performance of an entire contract, the party in default will generally be liable in damages for his non-per- formance, or such non-performance will constitute a legal bar to his DEFENSES. 735 Former adjudication. right to compensation for what he has done under the contract, nnless there is some subsequent modification of the original agreement. But where the contract is divisible, as for example, where a person agrees to sell and deliver all the coal another may want for his use for a year at a specified price per ton, deliveries to be made as required, there may be recovery for a part performance of the contract, subject, however, to a recoupment of the damages sustained by reason of a failure of full performance. Per Lee v. Beebe, 13 Hun, 89 ; Talmage v. White, 3 Jones & Sp. 218. § 14. Former adjudication. The law favors a just and final de- termination of all disputes between contending or litigant parties. And when such difficulties cannot be amicably adjusted by the parties themselves, the law offers its remedies as a peaceful, a just and a final termination of the matter. And for the purpose of securing a full and fair trial of all such questions, the law has provided ample remedies, which are open and free to all who are entitled to them, and who desire to employ them. But, while it is the policy of the. law to furnish sufficient modes for obtaining justice, it is also a settled principle that a fair and full hearing, with a final decision, is conclusive upon the rights of the parties, unless the future remedy is obtained by review in the nature of an appeal. Interest revpublicce ut sit finis litium, — it is for the public good that there be an end to litigation — is a well-estab- lished legal maxim. And whenever a question has once been fully and fairly tried, and a judgment rendered thereon, such judgment will generally be conclusive as to the same matter, and between the same parties or their privies. A brief review of the cases relating to this subject will materially aid the student or the justice in applying these principles to practice. F^ormer recovery by the plaintiif. Where a party has brought an action and recovered a judgment in his favor, he will be precluded from bringing another action for the same cause of action, against the same defendant. After a reco^^ery by process of law, there must be an end of litigation ; if it were otherwise, there would be no security for any person, and great oppression might be done under color and pre- tense of law. Where a defendant relies upon the defense of a former recovery by the plaintifi" against him, he is generally bound to prove the facts estabhshing such defense, though occasionally the plaintiff's evidence may be sufficient for that purpose. Where, in an action on contract for the recovery of the value of goods, wares and merchandise sold to the defendant, he relies upon a former recovery for the same cause of action, between the same parties, 736 DEFENSES. Former recovery by the plaintiff. and lie sets this matter np as a defense, a record of a recovery in a for- mer suit in favor of a plaintiff and against a defendant of the same name, where the complaint in each suit alleges, as the only cause of action stated, the sale of goods, wares and merchandise by the plaintiff to the defendant, during periods ending on the same day, and claims the same sum to be due, iurnishes ^rimayacie evidence of the truth of the defense. Agate v. Richards^ 5 Bosw. 456. The identity of the names of the parties, taken in connection with the same or a like subject-matter, furnishes presumptive evidence of identity of persons and of demand. lb. And if the plaintiff does not rebut this presump- tion a judgment in his favor will be reversed. Id. And see Hatcher v. Eocheleau, 18 ]S". Y. 87, 90 ; People v. Smith, 45 id. 772. A former recovery and a satisfaction of the judgment may, in some cases, be a bar to another action, even when the defendants are not the same. And where several persons were liable for a tort, but the plaint- iff sued one of them and obtained a judgment against him, which was paid and satisfied, it was held that the plaintiff could not maintain an action against any of the other wrong-doers after such payment. Dex- ter V. Broat, 16 Barb. 337. Payment of the money to the justice before whom the judgment was rendered is a good payment to the plaintiff in such a case. lb. So where a plaintiff elects to sue one of the seve- ral joint debtors, and to take a judgment against him separately, that will bar his action against any of the other joint debtors. Ante, 725. But a judgment in favor of the plaintiff, and against the title of the defendants as to a claim of title from the plaintiff, will not bar a title which was subsequently derived from other persons, and inter- posed in the second action. Rider v. Union India Rubher Co., 4 Bosw. 169. An action of tort can be maintained against a person, or his personal representatives, for deceit, in making false representations as to the sol- vency of a mercantile firm of which he was a member, although a judgment has already been recorded against the firm, and of course, against him jointly with his copartners, for the price of the goods sold to the firm on the strength of such false representations. Morgan v. Skidmore, 55 Barb. 263; S. C, 3 Abb. N. C. 92; Goldlerg v- Dougherty, 7 Jones & Sp. 189 ; Johnson v. Luxton 9 id. 481. Former suit, when plaintiff set off demand. If a demand has once been allowed as a set-off, it can never afterward form the subject of an action. And this rule is not limited to those cases alone in which the matter set off is strictly a matter of set-off ; for if a claim is offered and allowed as a set-off, it will be extinguished as a claim, even though it DEFENSES. 737 Former eait, -wlien plaintiff set off demand. could not properly be insisted upon as a set-off. If a claim for damages for fraud in the sale or exchange of horses or other property is offered and passed upon by a jury or the justice without objection, this will bar any subsequent action upon the claim. King y. duller, 3 Caines, 152. So where damages have been done by cattle, and the claim is not objected to by the plaintiff at the trial, the allowance will be legal, and if the verdict is in favor of the defendant for the amount of his claim, or even more than that specified in the pleadings, the judgment will not be disturbed. Wilso7i v. Zarmouth, 3 Johns. 433. If damages for a conversion of personal property are allowed as a set-off, that will bar any subsequent action for the same demand. McLean v. Hugarin, 13 Jolms. 184. And see Skelding v. Whitney, 3 "Wend. 154 ; Curtis V. Groat, 6 Johns. 168. Where a defendant presents a demand as a set-off to the plaintiff's claim, and the demand is legal and proper to be allowed, if duly proved, and the jury or the justice pass upon it and disallow it, such demand cannot be set off in another action between the parties, nor will an action lie upon it. Hatch v. Benton, 6 Barb. 28. But, when it appears affirmatively that the claim was such that it could not be le- gall}'' allowed or passed upon under the circumstances of the case, such former action will not bar the claim, nor defeat an action upon it. lb. Where a claim has been interposed in a former action by way of set- off, and has been duly passed upon and rejected in such action, the claim is 7;es adjudicata, and the former action is a bar to a new action by the party who was defendant in that action, against the plaintiff therein, for the recovery of the amount thus rejected as a set-off. Rogers v. Rogers, 1 Daly, 194. The allowance or disallowance of claims by way of set-off is a frequent subject of litigation. And the court have settled the practice on that point. If a party to an action, whether plaintiff or defendant, presents a demand which is legal and proper to be allowed, if supported by sufficient evidence, and the jury or the justice pass upon it and disallow it, such demand cannot be recovered in another action. The verdict is conclusive, unless it appears affirma- tively that the claim rejected by them could not legally have been al- lowed. McOuinty v. Herrick, 5 Wend. 240, 244 ; Hatch v. Benton, 6 Barb. 34; Beebe v. Bull, 12 Wend. 504, 506; 7w«v. Goddard, 1 Hilt. 434. In an action upon contract, if the defendant offers a set-off aris- ing out of a tort, and the plaintiff objects to this claim, or to the intro- duction of evidence of it, and the claim is rejected, this will not bar an action upon such claim. lb. To bar any claim by a former judgment, it must appear that the matter of set-off was such as to be properly 93 738 DEFENSES. Former suit, and neglect to interpose counter-claim. and legally allowable whether the plaintiff consented or not ; or that such claim, if not legally allowable as a set-off, was nevertheless re- ceived by the plaintiffs without objection. Tb. And see Miller v. Man- ice, 6 Hill, 114. If the claim is litigated, and the matter is permitted to be received by way of defense, although not as a set-off, this will still be a bar to any further action upon it. Wilder v. Case, 16 Wend. 583 ; Broakway v. Kinney, 2 Johns. 210. But where it is alleged by the answer that a demand was set off in a previous action, it will be a suf- ficient answer to show that the demand could not legally be set off, and that it was rejected on the former trial, on the objection of the party making such defense. Babcooh v. Peek, 4 Denio, 292. The term " counter-claim," used in the Code of Civil Procedure, in- cludes a demand which under the old practice could have been set off against the cause of action set forth in the plaintiff's complaint. See Code of Civil Procedure, §§ 501, 502, 2945. That act provides that where a counter-claim is established which equals the plaintiff's demand, the judgment must be in favor of the defendant. Where it is less than the plaintiff's demand the plaintiff must have judgment for the residue only. Where it exceeds the plaintiff's demand, the defendant must have judgment for the excess, or so much thereof as is due from the plaintiff, unless it is more than the sum of $200. If it is more than $200, or if no part of it is due from the plaintiff, the justice must, at the election of tlie defendant, either set off so much of the counter- claim as is sufficient to satisfy the plaintiff's demand, and render judg- ment for the defendantjor his costs, or render a judgment of discon- tinuance, vdth costs. If the justice sets off so much of the counter- claim as will satisfy the plaintiff's demand, the defendant may maintain an action for the residue ; and if he does not set off enough of the counter-claim to satisfy the plaintiff's demand, but simply renders a judgment of discontinuance with costs, the defendant may afterward maintain aii action for the whole. If part of the excess of the defend ant's counter-claim over the plaintiff's demand is not due from the plaintiff, the judgment will not prejudice the defendant's right to recover from another person so much of his counter-claim as the judgment does not cancel. See Code of Civil Procedure, § 2949 ; Inslee v. Ham,p- ton, 11 Hun, 156. Vol. I, 27, 28, 29. Former suit and neglect to interpose a counter-claim. Where the defendant, in an action to recover damages upon or for a breach of contract, neglects to interpose a counter-claim, consisting of a cause of action in his favor to recover damages for a like cause, which might have been allowed to him upon the trial of the action, DEFENSES. 739 Former suit and neglect to interpose counter-claim. he and every person deriving title thereto through or from him are forever precluded from maintaining an action to recover the same or any part thereof, unless, (1) the amount of the counter-claim is $200 more than the judgment which the plaintiff recovers ; or (2) the coun- ter-claim consists of a judgment rendered before the commencement of the action m which it might have been interposed ; or (3) of a claim for unliquidated damages ; or (4) of a claim upon which another action was pending at the time when the action was commenced ; or (5) the case is one where judgment is taken against the defendant without personal service of the summons upon him, or a-n appearance by him. Code of Civil Pro., §§ 2947, 2948. Yol. I, 28, 29. If the action is not founded upon contract, but is for a tort, as in ac- tions of trespass, trover, replevin and the like, no set-off is then ad- missible, and of course the demand could not be set off, nor could an omission to set it off be any bar to a subsequent action upon it, or to offering it as a set-off in a proper action. And when a defense is interposed, which is founded upon an omission to set off a demand, the answer must show that the former action was upon contract, and that it was such that a set-off was allowable. Dygert v. Coppernoll, 13 Johns. 210 ; Moore v. Davis, 11 id. 144; Bean v. Alleii, 8 id. 390; Allen V. Horton, 7 id. 23. See Stone v. Miller, 7 Barb. 368. It should show that the set-off was due and that it might have been set off. £ull V. HojpTcins, 7 Johns. 22. If the defendant fails to show affirmatively by his answer that the demand might have been set off, he fails to state facts sufficient to constitiite a defense to the action. Stone V. Miller, 7 Earb. 368. And see Baldwin v. Walsworth, Hill & Denio, 340. If the set-off was rejected on the former trial, on the objection of the party who alleges an omission to set off the demand, it will be a full answer to show that the omission to set off arose from its rejec- tion on his objection. Phinney v. Earle, 9 Johns. 352. "Where the right of set-off accrues from a breach of contract, the set-off must be offered whenever an opportunity offers, or the i-ight will be lost. The maker of a promissory note paid $100 thereon to the payee, who omitted to indorse or give credit therefor, but sued the maker and surety, and recovered the full amount of the note, the suit not being defended, and issued an execution thereon ; whereupon the surety paid the judgment, and taking an assignment of the principal's claim, brought an action to recover back the payment of the $100, but it 740 DEFENSES. Former action aud judgment for the defendant. was held that the action would not lie. Bmck v. Wood, 43 Barb. 315 ; overruling Smith v. Weehs, 26 id. 463. Where the defendant had agreed to remove his goods from a store in May, 1803, but neglected to do so, in consequence of which the plaintiff was obliged to pay damages to the person to whom the store had been sold by him, it was held that the cause of action accrued at the time when the defendant neglected to remove the goods in 1803, and not at the time when the plaintiff had to pay damages in 1806, and that, consequently, the plaintiff, who was sued by the defendant in 1806, before a justice of the peace, was bound to set off this demand for damages on the agreement. Mc Kerr as v. Gardner, 3 Johns. 137. In such a case the cause of action accnies at the time of the breach of the agreement, and not at the time of paying the consequent damages. The law requires a party to set off his demands at the first opportunity. And if two actions are brought against the same defendant, by the same plaintiff, and the summons in each action is returnable at the same time, the defendant must set off his demand in the action which is first called and a complaint put in, or he will lose his right. Serjeant v. Holmes, 3 Johns. 423. Former action and judgment for the defendant. After a cause had been tried upon its merits and a judgment has been rendered in favor of the defendant, that judgment will be conclusive evidence in his favor upon all questions subsequently arising in a new action re- lating to the same subject-matter. Kent v. Hudson River M. R. Co., 23 Barb. 278. And if such suit was commenced by the plaintiff's agent, without authority, the rule will be the same if the plaintiff has ratified the agent's acts. lb. A judgment in favor of a defendant and another, jointly, when they are sued together, is not a bar to an action against one defendant separately for the same subject-matter. 0'' Connor v. jBagley, 3 E. D. Smith, 149. And where a judgment was rendered in favor of the de- fendants, in an action upon contract, against two persons who were sought to be charged as joint contractors, or as partners, and in which a joint liability was denied, it was held that such judgment was no bar to an action by the same plaintiff, on the same contract, against one of the former defendants, in which he is charged as sole contractor. lb." Lawrence v. Hunt, 10 "Wend. 80, 83. In such cases the fact that there was not a joint liability does not decide that there was not a separate liability of one of the defendants. lb. But if the judgment in the first action was rendered upon an answer of payment or other defense which when established would be equally a defense in the second suit theq DEFENSES. 741 Former judgment when a bar, and how far conclusive. such judgment is conclusive against the plaintiff. lb. If, however, a judgment is rendered against the plaintiff in an action for the price or value of goods or personal property which was delivered upon an alleged contract of sale, such judgment will not be a bar to an action by the same plaintiff against the same defendant, for damages for the wrongful detention of the property, when the latter action is founded upon the ground that there was no sale of the property, and that the defendant has wrongfully converted, or that he wrongfully detains it. Ball V. LarMn, 3 E. D. Smith, 555. If the prior judgment was rendered on the ground that there was no contract of sale between the parties, the latter action also assumes the same thing, and therefore the finding in the prior action does not de- termine the question involved in the latter one. Defenses must be pleaded. All of these various defenses of a former recovery by the plaintiff, amte, 735, a former judgment in favor of the defendant, ante, 740, a neglect to set off the demands, ante, 738, and all similar defenses must be set up in the answer, or they will not be available as a defense or a bar to the action. Hendricks v. Decker, 35 Barb. 298. Judgment when a bar, and how far conclusiTe. The rule in relation to the conclusiveness of a judgment has long been settled ; and it is thus stated by the Supreme Court in this State. The judgment of a court of concurrent jurisdiction, or one in the same court directly on the point, is a plea in bar, and as evidence in certain cases, conclusive between the same parties upon the same matter directly in question in another court or suit ; but is no evidence of matter which comes col- laterally in question merely, nor of matter incidentally cognizable, or to be inferred only by argument or construction from the judgment. Lawrence v. Hunt, 10 Wend. 80, 83, 84; Duchess of Kingston's Case, 2 Smith's Lead. Cas. 424, and note. The rule thus enunciated is not limited in its application to those cases in which the cause of action in the successive suits is exactly the same, and where the decision in the prior case proceeded exclusive!}'' upon a question of fact. JSirMead v. Brown, 5 Sandf. 134; S. C, 2 Denio, 375. The general proposition, deducible from a full exami- nation of the authorities, is, that as between the parties and privies a prior judgment is conclusive as to every question it embraced and determined, and upon which, in a subsequent suit, the right of the plaintiff to recover, or the validity of the defense, is found to depend, lb. And, therefore, the judgment of a court of competent jurisdic- tion upon a question directly involved in the action is conclusive in a 742 DEFENSES. Former judgment when a bar, and how far conclusive. second action between the same parties, and depending upon the same question, although the subject-matter of the second action is different from that in the first action. Doty v. Brown, 4 N. Y. 71. Thus, where A. took from B. a bill of sale of certain personal property, and C. afterward levied upon the property by virtue of attachments in favor of B.'s creditors, and A. subsequently took and converted to his own use apart of the property, for which C. sued him and recovered judgment in a justice's court, on the ground the bill of sale was fraudu- lent and void as to creditors, and it was held that the judgment was conclusive upon the question of fraud, in an action of replevin after- ward brought by A. against C, in the Supreme Court, to recover the residue of the property. lb. The rule that a judgment of a court of competent jurisdiction upon litigated questions between the same parties is conclusive in all subse- quent controversies where the same matters come in question, either directly or collaterally, applies not only to the judgment of courts, but to all judicial determinations whether made by courts in ordinary actions, or in summary or special proceedings, or by judicial officers in matters properly submitted for their determination. It applies not only to judgments rendered after a litigation of the matters in con- troversy, but to judgments rendered upon default or confession. Oates V. Preston, 41 N. Y. 113 ; Newton v. HoucTc, 48 id. 676 ; Brown V. Mayor, 66 id. 385 ; Jarvis v. Driggs, 69 id. 143 ; Demarest v. Da/rg, 32 id. 281, 290; S. C, 29 How. 266; Yonhers (& New York Fire Ins. Co. v. Bishop, 1 Daly, 449 ; Sage v. ITarpending, 49 Barb. 166 ; Bowers v. Witty, 42 How. 352. And the rule is especially ap- plicable to judgments of justices' courts where the plaintiff has not served a verified complaint with his summons. Blair v. Bartlett, 75 N. Y. 150. As a general rule, too, the judgment of a court having jurisdiction of the subject-matter and of the parties is final and con- clusive not only as to the matters actually litigated and decided, but also as to matters necessarily involved in the litigation and which might have been litigated. Dunham v. Bower, 77 N. Y. 76 ; Emhury v. Conner, 3 id. 511; Collins \. Bennett, 46 id. 490; Tushax. O'Brien, 68 id. 446. "Where, in an action to recover possession of personal property, the plaintiff claims under a chattel mortgage alleged by the defendant, a purchaser under an execution against the mortgagor, to have been fraudulent as to creditors, a judgment, against the now defendant in the former suit in which he was plaintifE, and a servant of the now plaint- iff was defendant, and in which suit the validity of the same chattel DEFENSES. 743 Former judgment when a bar, and how far conclusive mortgage was in question, estops the defendant in this action. And it is immaterial that such judgment is shown to have been based upon other grounds than the validity of the mortgage. Casils v. Noyes, 14 IST. Y. 329. The facts in the last case cited were as follows : The now defendant sued one Ronk for removing a portion of the property bouglit by him at an execution sale. The now plaintiff defended that suit, and justified the removal by Epnk, as his servant, claiming title under a mortgage from the execution debtor, which mortgage was alleged by the then plaintiff to be fraudulent as to creditors. But judgment was rendered against the then plaintiff on the ground that he failed to prove the judgment on which the execution was issued ; and it was held that the judgment in that suit was conclusive against the title of the defendant in this, whether the validity of the mortgage was determined in that suit or not; and it was further held that the now plaintiff and Konk stood in such privity to each other as to bring the case within the rule laid down in Doty v. Brown, ante, 742. So, where, in an action of trover, the defendant justifies the taking, by the command of a third person, and under the title of the latter, he is to be regarded as a privy of such third person, and the record of a former recovery by the plaint- iff, against such third person, for the same taking of the property, is admissible in evidence against the defendant, and is conclusive as to the plamtiff's title to the property, and as to his right to the possession thereof. Calkins v. AUerton, 3 Barb. 171. But it is not enough to show that the person against whom the former judgment was rendered was the servant of the party against whom the record is offered in evidence, and that such person had at- tempted to defend as such servant, in the first action. Alexander v. Taylor, 4 Denio, 302. It must appear that the alleged master and present defendant assumed to defend the acts of the pretended agent, or he will not be estopped by the judgment. lb. And see Castle v. Ifoyes, 14 N. T. 332, opinion. A judgment is conclusive as a bar to a second action concerning, the same matter, even though it was rendered upon an erroneous view of the law. Morgan v. Plumb, 9 Wend. 287; Stevnhaoh v. Relief Fire Ins. Co., 77 N. T. 498, 501. And where a judgment was rendered against a plaintiff upon an erroneous assumption that his cause of action had not accrued at the time of bringing his action, it was nevertheless held to be conclusive in a second action. Morgam, v. Plumb, 9 "Wend. 287. The correct method of correcting such an erroneous decision is by an exception, and an appeal. But if this is omitted, the judg- ment will be conclusive. 744 DEFENSES. Former j udgment when a bar, and how far conclusive. In order to bring a case within the rule that whatever was deter- mined in a prior action concludes the parties and can never again be brought into litigation between them so long as the judgment therein remains in force, the second suit must be founded upon substantially the same cause of action as the first ; and the test of that is that the same evidence will support both actions. The rule is the same although tlie two actions are different in form. Steinhach v. Relief Fire Ins. Co., n N. Y. 498, 601 ; Gregory v. Burrall, 2 Edw. Oh. 417 ; Rice V. King, 7 Johns. 20 ; Johnson v. Smith, 8 id. 383. "Where a judgment is reversed on appeal, upon mere technical grounds, not in any way affecting the merits of the action, such judg- ment of reversal will not be any bar to a second or new action for the same cause. Onderdonk v. Ranlett, 3 Hill, 323 ; Close v. Stuart, 4 Wend. 95. If the reversal, however, is upon the law of the case upon the merits, such judgment will be conclusive in a new or second action. Where a judgment is reversed upon an appeal, the reversal will de- stroy the efficacy of the judgment below as an estoppel. Wood v. Jack- son, 8 Wend. 9 ; Smith v. Frankfield, 77 N. T. 414. In the case of continuous injuries, as in the case of a nuisance, one recovery for an injury will not bar a second action to recover such damages as may have resulted from a continuance of the nuisance after the judgment in the prior action. Beckwith v. Griswold, 29 Barb. 291. But the recovery of damages in the second action will be limited to the time of the commencement of the prior action. lb. An adjudication in a former action is conclusive, so far as it relates to the rights of the parties at the time of the adjudication ; but if the defense to the claim, which they could not then legally interpose, sub- sequently arises and accrues to the defendant, he is not estopped by the former judgment from interposing the defense thus subsequently accruing. Smith v. McCluskey, 45 Barb. 210. Where there has been a contract for the sale of real estate, but the purchaser was not entitled to the possession by the terms of the contract, and the vendor requires the purchaser to surrender up the possession of the premises, which is done, and subsequently the building, which is the chief value of the property, is destroyed by fire, this will discharge the purchaser from the payment of any installments still unpaid ; and if any installments have been recovered and collected by judgment prior to the fire, the purchaser may recover back the amount, notwithstanding the judg- ment, lb. A judgment recovered in a justice's court is as conclusive upon the DEFENSES. 745 Splitting demands. rights of the parties as though it were rendered by the Supreme Court. Doty V. Brown, 4 N. Y. 71 ; Castle v. Noyes, 14 id. 329 ; Bellinger V. Oraigue, 31 Barb. 536. Splitting demands. The law does not permit a party to prosecute two actions at the same time for the same demand. Ante, 659, 660. And when the question has once been determined, that is conclusive between parties and privies. And the same principle which controls in such cases also forbids a party from severing a single cause of action, and bringing separate suits upon each part. And if a single cause of action, whether arising upon contract, or for a tort, is split or severed, and an action brought and a judgment recovered for a part of the entire claim or demand, that will operate as a bar to any subsequent action for any portion of the residue of such demand. But while the law prohibits the splitting or severing of a single cause of action, there is no principle, and no decision which requires a party to join several separate and distinct causes of action in the same action. These general principles are well understood, and are not often questioned, but there is frequently a difficulty in applying the prin- ciples to practice, for it is not always easy to determine whether a particular item is a part of another claim or a distinct and separate matter. A few of the more important cases which are recognized as sound authorities will be given for the purposes of illustration. Splitting demands arising on contract. In a leading case the facts were as follows : The business of ship-carpenters was carried on by the plaintiflEs in one part of a building, under the direction of two of the partners of the firm, and the business of ship-chandlers was carried on in another part of the same building, under the direction of the third partner. Separate books of account were kept by different clerks in the two branches, and the partners confined themselves respectively to the management of one of the branches, without per- sonally taking part in the other. Work was done and materials fur- nished from the carpentry branch of the business, in the repairing and equipping of a brig, upon the order of her captain, to the amount of $139, and immediately thereafter goods and articles of ship-chandlery were furnished to the same brig, and on the order of the same captain, at different times through a period of a month, amounting to $521 ; and it was held that the two accounts did not constitute an entire claim, but, on the contrary, formed two separate causes of action. Secor v. Sturgis, 16 N". Y. 548, 558. On the latter page the court said : "The true distinction between demands or rights of action which are single and entire and those which are several and distinct is that the former im- 94 746 DEFENSES. Splitting demands arising on contract. mediately arise out of one and the same act or contract, and the latter out of different acts or contracts. Perhaps as simple and safe a test as the subject admits of, by which to determine whether a case belongs to one class or the other, is by in- quirinj^ whether it rests upon one or several acts or agreements. In the case of torts, each trespass or conversion, or fraud, gives a right of action, and but a single one, however numerous the items of wrong or damage may be; in respect to contracts, express or implied, each contract affords one and only one cause of action. The case of a con- tract containing several stipulations to be performed at different times is no exception; although an action may be maintained upon each stip- ulation as it is broken, before the time for the performance of the others, the ground of action is the stipulation which is in the nature of a several contract. Where there is an account for goods sold, or labor performed, where money has been lent or paid for the use of a party at different times, or several items of claim spring in any way from contract, whether one only or separate rights of action exist, will in each case depend upon whether the case is covered by one or by separate contracts. The several items may have their origin in one contract, as on an agreement to sell and deliver goods, or pei-form work, or ad- vance money, and usually in the case of a running account, it may be fairly implied that it is in pursuance of an agreement, that an account may be opened and continued, either for a definite period or at the pleasure of one or both of the parties. But there must be either an express contract, or the circumstances must be such as to raise an im- plied contract, embracing all the items to make them, where they arise at different times, a single or entire demand or cause of action." If two separate bills of goods are sold at different times, and a credit of six months or other credit is given on the first bill, but none is given on the other, these are separate and distinct demands, and a recovery upon the first bill will not bar an action upon the second one. Staples V. Ooodrich, 21 Barb. 317. The law does not compel a cred- itor to join both claims in one action in such a case. lb. And see Cashman v. Bean, 2 Hilt. 340. But where several different articles are sold in an entire indivisible sale, there cannot be a separate action for any of the articles separately, and if a recovery is had for one or more of the articles, no action can be maintained for the residue. Mil- ler V. Covert, 1 Wend. 487 ; Smith v. Jones, 15 Johns. 229 ; Phil- lips V. jBerick, 16 id. 136. A promissory note is an entire indivisible demand, and there cannot be several separate actions maintained upon it. And if several sepa- DEFENSES. 747 Splitting demands for torts. rate actions are founded upon it, and a judgnaent rendered in favor of the plaintiff in eaeli action, the judgments will all be reversed. Wil- lard V. Sperry, 16 Johns. 121. But, vsrhere a promissory note is made payable by installments at different times, a former recovery for a pre- vious installment will not be any bar to a second or other action for an installment subsequently falling due. Butler v. Wright, 2 Wend. 369. All debts or demands which are already actually due by the same contract make but an entire demand within the rule as to splitting demands. And, therefore, a judgment in an action for breaches of one covenant is a bar to an action for a breach of another covenant in the same instrument, when such breach was committed before the lirst action was brought. Bendernagle v. Cocks, 19 Wend. 2U7 ; Cog- gins V. BulwinMe, 1 E. D. Smith, 434. And see Fish v. Folley, 6 Hill, 54. But when a covenant is entered into for keeping a gate in repair, and there is a breach of the covenant, an action may be main- tained for any new breaches of it, although a prior recovery might be a bar for all causes "of action existing at the time of bringing the first action. Grain v. Beach, 2 Barb. 120 ; S. C, 2 Comst. 86. Personal services performed at different times, under distinct con- tracts, form separate causes of action, and a recovery for the prior ser- vices in one action will be no bar to a subsequent action for the other services. Phillips v. BericTc, 1^ Johns. 136. And to consti- tute a bar to a second action even where the goods are all sold at one time, there must have been a prior recovery of a judgment. If an ac- tion is commenced for a part of a claim, and the defendant appears before the trial and pays the amount, upon which such action is dis- continued, this is not such a judgment as will bar a second action for the residue of the demand. Cashman v. Bean, 2 Hilt. 340. And see Carlisle v; McGall, 1 id. 399. If a party brings an action for a part only of an entire demand, and obtains judgment thereon, he cannot subsequently avail himself of the residue of his demand by way of set-off in an action against him by the opposite party. Miller v. Covert, 1 "Wend. 487 ; Ilopf v. Myers, 42 Barb. 470. Splitting demands for torts. The same general rules prevail in these cases as well as in actions upon contracts. And, therefore, where there has been a trespass or a conversion of personal property by one single indivisible act, in relation to the several chattels, the plaintiff cannot split his claim for damages, and bring separate actions for each particular article. A recovery for one article in such a case is a good and legal bar to any action for the recovery of damages for the taking 748 DEFENSES. Subject of Becond suit, matter of defense in former action. or conversion of any of the others. Famngton v. Payne, 15 Johns. 432. And where a bed and bed-quilts were taken at the same time and by the same act, it was held that a recovery for the quilts was a bar to an action for taking the bed. lb. But where an action was brought for the recovery of damages for the conversion of several articles, and on the trial the plaintiff ascer- tained that a portion only of the articles had been converted, it was held that he might withdraw his claim as to the articles not then con- verted, and that a judgment for those already converted would not bar a second action for such of the articles as were converted after the com- mencement of the first action. Doty v. Brown, 4 Comst. 71. So where the injury is a continuing one, as in the case of a nuisance, a recovery of damages in an action will not bar an action for injuries accruing subsequently to the time of bringing the first action. Beck- with V. Griswold, 29 Barb. 294. Subject of second suit, matter of defense in former action. There are some transactions which are so connected that any litigation upon the merits wiU finally dispose of the entire matter. A common illustration may be seen in the case of labor performed, and a payment of the laborer in full. If the laborer should sue the employer for such wages, after having been paid in full, it would be the duty of the employer to set up the defense of payment in his answer, and to prove it on the trial. And if he should omit to do this, but should permit a recovery against him without making any defense, he would be entirely remediless, since no subsequent action could be maintained for the pur pose of obtaining justice. And where a promissory note is given, which is not transferred until after it is due, and the maker has paid the note in full to the payee before its transfer, such maker must set up payment as a defense when sued by the holder of the note, and if he neglects to do so he cannot afterward maintain an action against the payee to recover the amount paid to him. Loomis v. Pulver, 9 Johns. 244. So if a note is given without any consideration, or there is any other legal defense to an action upon it, the maker must interpose such defense at the first opportunity. And if he omits to do this, he can- not maintain a subsequent action to recover back the amount, on the ground that he has since discovered evidence to prove his defense to the first action. White v. Aylesworth, 9 Johns. 232. In the case last cited, A. had lost a bridle, and he accused B. of having taken it, altliough he was innocent of the charge. A. threatened to bring an action against B., who, to avoid trouble, gave his note for $12 to A. on a promise by the latter to give the note up, if B. could show his DEFENSES. 749 Former recovery. — Must have been on the merits. innocence, or it' tlie bridle should be found. A. afterward brought an action upon the note, recovered judgment, and received the money upon it. And after that B, sued A. to recover back the money on the ground that A. had found his bridle, but the first action was held to be a bar to this second one on the ground that the subject of the second action was matter of defense to the first action. Whenever the judgment rendered in the first action necessarily involves and determines the question or matter which is the foundation of the subsequent action, then the first judgment will be a bar to the second action. Where a physician brought an action for his services as such in treat- ing a broken limb, and the defendant put in a general denial, but the defendant withdrew all claims for malpractice in the treatment of his limb, it was held that a verdict in favor of the plaintiff for his ser- vices was a bar to a subsequent action for such alleged malpractice. Blair V. Bartlett, 75 N. T. 150; Gates v. Preston, 41 id. 113; Bel- linger V. Craigue, 31 Barb. 534. In such a case the two claims can- not co-exist, and a recovery by either party will effectually bar the other party. lb. Where, however, the first action does not necessarily dispose of the subject of a second action, it will not be a bar, as in the case of re- couping damages, where a party is permitted to litigate the matter in the first action, or to reserve his claim for a subsequent action in his own favor, as we shall soon see under the title Recoupment. Post, 755. Former recovery mnst have been on the merits. Although a former adjudication between the parties is conclusive between them in a subsequent htigation of the matters involved in the former action, yet it must be understood that this rule does not apply in those cases in which the prior decision was not made upon the merits of tlie cause. If the prior action failed on the sole ground that it was prematurely brought, because the right of action was not then perfect, such judg- ment will be no bar to a subsequent action for the same matter, after the cause of action has become complete. Wilcox v. Lee, 26 How. 418 ; Quachenbush v. Ehle, 5 Barb. 469. A judgment of nonsuit because the plaintiff's evidence did not make out a case on the first trial is not a bar to a second action for the same cause. Tattersall v. Hass, 1 Hilt. 56; Elwell^ McQueen, 10 Wend. 519 ; Seaman v. Wa/rd, 1 Hilt. 52. And see Dexter v. Clark, 35 Barb. 271; S. C, 22 How. 289; Coit v. Beard, 33 Barb. 357; S. C, 22 How. 2 ; 12 Abb. 462 ; PeopU v. Vilas, 3 Abb. [IST. S.] 252 ; S. C, 36 N. T. 459 ; 1 Trans. App. 209 ; Wheeler v. Rxickman, 35 How. 750 DEFENSES. Former recovery. — Must be between same parties. 350; S. C, 7 Roh. 447; affirmed, 51 K Y. 391; Reynolds -r. Garner, 66 Barb. 310. A judgment on demurrer, which decides nothing in respect to the merits, but merely that the complaint does not set forth a cause of action, and that the plaintiff shall pay costs, is no bar to a subsequent ■ action in which the complaint sets up sufficient facts. Stowell V. Ghamlerlain, 3 Sup. Ct. [T. & C] 374. But see People v. Stephens, 51 How. 235. A former judgment, even though rendered on the merits, is no bar to a second action, when such first judgment is reversed upon an appeal before the trial of a second action. Wood v. Jackson, 8 Wend. 10 ; Close V. Stewart, 4 id. 95 ; Onderdonh v. Ranlett, 3 Hill, 323. Must be between same parties. It is a general rule that no one is bound by a former verdict or judgment unless he was a party to the action, or unless he is in privity with such party. If, therefore, the former judgment is between substantially dilferent parties, the judg- ment will not be a bar to a subsequent action between different parties in relation to the same subject-matter. A mere recovery against one of several joint-trespassers, without satisfaction, is no bar to an action against any of the other trespassers. Livingston v. Bishop, 1 Johns. 290. So a judgment in favor of one of several trespassers is no bar to an action against the others. Lansing v. Montgomery, 2 Johns. 382. For a joint trespass, committed by two persons, the party injured has his election to prosecute both in one action, or to sue them sepa- rately ; and in the latter case, if he recovers, he has the further election, which damages he will collect, in either of the actions. Kasson v. People, 44 Barb. 347. If he elects to sue the wrong-doers separately, and recovers in both actions, and then sues out an execution upon one of the judgments upon which the defendant is committed to jail, and then the assignee of both judgments gives a written direction to the sheriff to discharge that defendant from custody, the imprisonment of such defendant and his discharge therefrom by the assignee will oper- ate to discharge not only the judgment upon which such defendant was charged in execution, but also the judgment against the other joint trespasser ; and the remedy upon both judgments is gone. lb. In such a case the plaintiff in the judgments is entitled to but one satis- faction for the injury he has sustained by the trespass committed by the defendants in the two judgments ; and he has that satisfaction by the imprisonment of one of them, and by discharging him therefrom, lb. If an action is brought upon a promissory note, by the holder against the maker, for the consideration upon which the note was given, and a DErEN"SES. 751 Former recovery. — Same subject-matter. verdict and judgment are given in favor of the defendant, that will be no bar to a subsequent action upon the same note by the holder against the maker. Slauson v. Englehart, 3i Barb. 198. Such a judgment, to constitute a bar, must be upon the very point in issue. Both actions must be in substance and in point of law identical, and the same evidence admissible, and to some extent controlling in both. If the second action involves no inquiry into the merits of the former judgment, and is sustainable on grounds entirely independent of such former judgment, it will not be barred. lb. Where property is sold conditionally, on the condition that title shall not pass to the vendee until the purchase-price is paid, a recovery by such vendee against a wrong-doer for the value of the property, and a payment of the judgment, will not bar an action by the vendor against such wrong-doer for the value of the same property, if the ac- tion is brought afterward, and after the time for performing the con- dition by payment has passed. HasbroucTcY. Lounsbury, 261^. Y. 598. But where the judgment in the prior action is between the same parties as those in the subsequent one, the first judgment, if on the merits, and relating to the same matter, will be entirely conclusive. And by the term " same parties " is not intended that the parties need be identical, for there may be cases in which either of two differ- ent parties may bring an action, as in the case of bailor and bailee, either of whom may sue a wrong-doer. Ante, 543, 554. So, in an action by the owner of goods against a carrier for their non-delivery, if a general denial is interposed, and a verdict and judg- ment pass in favor of the carrier, on the merits, this will bar a subse- quent action for the same cause, by a forwarder of the goods. Oreen V. Clark, 5 Denio, 4.97; S. C, 12'lSr. T. 343; 13 Barb. 57. Same subject-matter. A verdict and judgment for the satne cause of action between the same parties is absolutely conclusive. And, ap a general rule, the cause of action is the same when the same evidence will support both actions. Rice v. King, 7 Johns. 20; Johnson v. Smith, 8 ]Sr. Y. 383; MiUer v. Manice, 6 Hill, 114; Steinbaoh v. Belief Fire Ins. Co., 77 N". Y. 498. If an action of trespass is brought for wrongfully taking chattels, and a verdict and judgment are rendered in favor of the defendant, this will bar a subsequent action by the same plaintiff against the same defendant, for the same goods as upon a sale by contract, express or implied. Rice v. King, 7 Johns. 20. But if the prior action was founded upon an alleged contract of sale of property, which was not established, and a judgment therefore passed 752 DEFENSES. Former recovery. — Same subject matter. for the defendant, this judgment will be no bar to an action for a sub- sequent conversion of the same property by the defendant, founded upon a refusal to return it on demand. Ball v. LarJcin, 3 E. D. Smith, 555. In such a case the causes of action are entirely different. In the first action the right of recovery is founded upon the fact that there has been a sale of the property by the plaintiff to the defendant, which is negatived by the judgment. And the second action, instead of denying the decision in the first action, aflSrms it, and is founded upon the fact that the plaintiff is the owner of the property which was not negatived in the first action. But where the cause of action is identical, the first action will be conclusive m a second one between the same parties. And if an action of trespass is brought for taking personal property, and a verdict and judgment reported in favor of the defendant, this will be conclusive in an action of trover for the same matter. Johnson v. Smith, 8 Johns. 383. And see liice v. King, 7 id. 20 ; Birkhead v. Brown, 5 Sandf. 134 ; Miller v. Manice, 6 mil, 114. Where a physician brought an action to recover for his services in treating a broken limb, and the defendant defended the action by an answer of a general denial, but the plaintiff recovered a judgment for the services rendered, this was held to be a bar to an action by the defendant for malpractice in the rendition of such services. Bellinger V. Graigue, 31 Barb. 534; Blair v. Bartlett, 75 N. T. 150; Gates v. Preston, 41 id. 113. So, on the other hand, if the patient had first brought an action against the physician for malpractice, and had recovered judgment, that would have been a bar to an action for such physician's services. PJd- wards v. Stewart, 15 Barb. 67. Where two notes are given iipon a single consideration, and one of the notes has been put in suit, and a direct issue joined upon facts which affect both notes alike, if those facts are established by a verdict and judgment, such judgment will be conclusive evidence of those facts in a subsequent action between the same parties upon the other note. Treadwell v. Stebhins, 6 Bosw. 538, 547 ; Gardner v. BucJchee, 3 Cow. 120. And see Burt v. Sterrthurgh, 4 id. 559. A recovery in an action upon an agreement wherein the right to recover depends by the pleadings upon the truth of the allegations made in the com- plaint, and denied by the answer, is quite common. Where an action is brought upon an agreement by a plaintiff who alleges in his complaint that he has fully performed the agreement, but which allegations are denied by the answer, a recovery by the DEFENSES. 753 Former recovery. — Conclusiveness of judgment. plaintiff in that action will bar any subsequent action by such defend- ant against such plaintiff to recover damages for an alleged non-per- formance of the agreement by such first plaintiff. Davis v. Tallcot, 12 N. Y. 184. The record of recovery in the first action estops the defendant from controverting the truth of the fact that the plaintiff in that action had fully performed the contract. lb. And the rule is not changed by the fact that besides a general denial there was also an answer setting up alleged breaches of the contract by the plaintiff, and that on the trial no evidence was given thereon, but that the claim was expressly withdrawn, and that the second action was for the recov- ery of such damages. lb. And see Campbell v. Butts, 3 N. Y. 173. Where several distinct securities arise out of one single transaction, and a defense which goes to the whole transaction is successfully inter- posed in an action upon one of them, the judgment will be conclusive as to all the others. Gardner v. Buolcbee, 3 Cow. 120 ; Treadwell v. SteVbins, 6 Bosw. 538 ; Bouchaud v. Dias, 3 Denio, 238 ; BirMiead V. Brown, 5 Sandf . 134 ; Higgvns v. Mayer, 10 How. 363. But in an action upon one of two promissory notes, a failure to set up that the transaction upon which they were given was illegal does not pre- vent the defendant from setting up that defense in a subsequent action upon the other note. Hughes v. Alexander, 5 Duer, 488. Conclusiveness of judgment. A former judgment of the same court, or of a court of concurrent jurisdiction, directly upon the point in issue, is, as a plea in bar or evidence, conclusive between the same parties, or others claiming under them, upon the same matter in a sub- sequent proceeding, not only as to the matter actually determined, but as to every other matter which the parties might have litigated and have had decided as incident to the subject-matter of the litigation, as coming within the legitimate purview of the original action, both as to matters of claim and of defense. Ha.rris v. Harris, 36 Barb. 88, 94, 95 ; Gardner v. BucTcbee, 3 Cow. 120 ; Wood v. Jackson, 8 Wend. 9; Etheridge v. Osborn, 12 id. 399; Embury v. Conner, 3 IST. Y. 511 ; Doty v. Brovm, 4 id. Tl ; Ehle v. Bingham, 7 Barb. 494, Haire v. BaTcer, 5 N. Y. 357; Davis v. Tallcot, 12 id. 184; HoAjes v. lieese, 34 Barb. 156 ; Dunham v. Brower, 77 N. Y. 76 ; Collins v. Bennett, 46 id. 490 ; Tusha v. O'Brien, 68 id. 446. Where the grounds upon which the judgment proceeded do not ap- pear from the record itself, and where from the record itself it cannot be determined whether a particular claim, security or question was in- volved in the litigation, it is competent to prove that matter by parol evidence, provided it is such as might have been legitimately given in 95 754 DEFENSES. Former recovery. — Conclusiveness of judgment. evidence under the issue, and must have been directly and necessarily in question as the ground of the verdict or judgment. Wood v. Jacle- son, 8 Wend. 9 ; Lawrence v. Hunt, 10 id. 80 ; MoKnight v. Dunlop, 4 Barb. 36, 44; Young v. Eummell, 2 Hill, 481 ; Dunckd v. Wiles, 11 N. T. 420 ; McKnight v. Devlin, 52 id. 399 ; S. C, 11 Am. Eep. 715. Where, in an action in a justice's court, there is only a single indivisi- ble cause of action, which is for a breach of vi^arranty on a sale of chat- tels, the record of judgment in that action will be conclusive as to what was tried, and for what cause of action there was a recovery ; and, in a subsequent litigation between the same parties in the Su- preme Court, parol evidence will not be admissible to show that the recovery was for fraud in the sale of property, instead of being for the breach of warranty alleged. Royce v.. Burt, 42 Barb. 339. But where it appears doubtful from the pleadings in a justice's court, and from the docket of judgment, -what was really tried and passed upon by the justice, it is competent to prove, by evidence aliunde, that he tried and passed upon any facts and questions that might have been litigated under the pleadings. Royce v. Burt, 42 Barb. 655. It may be shown that under an indefinite pleading in the justice's court, any question was litigated which the law would, under the circumstances of the case, have allowed to be tried ; and, if the plaintiff might have recovered, under his complaint, with adequate proof, either for a breach, or upon the rescission of a contract, he, or any party interested, is at liberty to show upon which ground the recovery was in fact had. lb. Whether a claim presented by the pleadings in an action before a jus- tice of the peace was litigated and submitted, is a question which may be proved upon the trial of the second action. Burwell v. Knight, 51 Barb. 267. So where the terms of a submission to an arbitration are sufficiently broad to render a particular claim a proper subject for trial before the arbitrator, but the award does not show upon its face that the claim was passed upon, evidence showing that the claim was not passed upon by the arbitrator, and that proof of the claim was ex- cluded by him, may be shown in an action on the claim. Morss v. Oshorn, 64 Barb. 543. Where a complaint in a justice's court alleges a cause of action that the defendant wrongfully took away the plaintiff's horse and detained him for a liihited time, and injured him, and deprived the plaintiff of his use, and there is a recovery by the plaintiff, in which the judgment follows the cause of action stated in the complaint, the recovery will not have the effect of changing the property in the horse and vesting it in the defendant, even though the judgment is paid by the defend- DEFENSES. 755 Eecoupment. — What it is. ant. Thurst v. West^ 31 N. Y. 210. But, where such action is hti- gated in the justice's court, the parties may, by their course of pro- ceedings on the trial, change the cause of action to trespass or trover without any formal amendment of the pleadings ; and if such is the nature of the action, instead its being a mere action for damages for taking the horse away, the recovery and the payment of the judgment would change the title to the property and vest it in the defendant. And if such defendant afterward demands the horse of the plaintiff, who refuses to deliver him on demand, replevin will lie for his recovery, and on the trial of such action the plaintiff therein may show, by the justice's docket and minutes of the trial, what the real questions were that were litigated in the action before him, and if the jury in the latter action find that the recovery in the action before the justice was for the value of the horse, the title of the horse will be held to have been changed and vested in the defendant paying such judgment, and he will be entitled to recover the horse in replevin. lb. The minutes of the justice of the peace may be read in evidence in the replevin action to show what was really tried before him. lb. The fact that an appeal has been brought does not affect the con- clusive nature of the judgment as a bar, while it remains unreversed. Harris v. Hammond, 18 How. 123. And see Tyler v. Willis, 35 Barb. 213 ; S. C, 13 Abb. 369 ; Willard v. Fox, 18 Johns. 49Y. A reversal, however, would destroy its efficacy as an estoppel between the parties. Wood v. Jackson, 8 Wend. 9 • Onderdonk v. Ranlett, 3 Hill, 323. So, if the former judgment is void for want of jurisdiction, it will not be a bar to a subsequent action. SahooQiinaher v. Clearwater, 41 Barb. 200 ; S. C. affirmed, 1 Keyes, 310 ; 1 Abb. Ct. App. 341. To render a judgment conclusive as an estoppel as to a fact or title distinctly put in issue, in another action, between the same parties, it is essential that the tribunal which passed upon the question on the former action should have had jurisdiction. Gage v. Hill, 43 Barb. 44. § 15. Eecoupment. What it is. This is a right which the law gives to a defendant to retain or deduct from the plaintiff's claim, or deduct such sum as may be equitable in the adjustment of the matters between the parties, provided the defendant's claim arises out of the contract on which the plaintiffs action is founded. The law does not per- mit a recoupment by the defendant, unless the plaintiff's action is foun- ded upon contract, and unless also the claim or demand to recouped arises out of the contract upon which the action is brought. A claim by way of recoupment is included in the term " counter-claim " used in 756 DEFENSES. Recoupment. — What it is. the Code of Civil Procedure, but cannot always be set up in an answer where a counter-claim may be interposed. A counter-claim may consist of a demand which is entirely independent of the contract on which the action is founded. But recoupment is limited strictly to such de- mand as the defendant is entitled to have allowed on account of new matter arising out of the contract sued on. If an action is brought to recover the price due for building a steamboat, the defendant may re- coup such sum as will need to be expended in supplying defects in the vessel or its machinery, so as to make it conform to the contract for its construction. Blanohard v. Ely, 21 "Wend. 342. But it will not be permitted to deduct such damages as he has sustained by way of loss of trips and the profits resulting therefrom, where the loss arose from de- fects in the boat or its machinery. lb. The damages allowed are such only as will render the boat what the contract required it should be, but the rule does not extend to loss of profits arising from accidental matters not provided for in the original contract. lb. In an action upon a promissory note, by the payee, to recover the price of goods sold, for which the note was given, the defendant may recoup his damages which have arisen in consequence of the non- delivery of the goods by the vendor, at the time specified. Fabbriootti y. Launitz, 3 Sandf. 743. So, where an action is brought upon a note given for the purchase- price of standing trees, purchased for the purpose of cutting them into fire-wood, the defendant may recoup such damages as he may have sustained by reason of the burning of the wood, where the fire orig- inated from the burning of an adjoining fallow, if the vendor of the trees agreed, at the time of the sale and of giving the note, to indem- nify the purchaser from any loss by reason of any such fire. Batter- m-an v. Pierce, 3 Hill, 171. So, in an action to recover payment for services rendered under a contract which has not been fully performed, the defendant may recoup such damages as he has sustained by reason of the non-performance of the residue of the contract by the plaintiff. Sickels v. Pattison, 14 "Wend. 257. So, where a horse is hired to go a particular journey, if the horse is unable to perform the journey, without any fault of the hirer, and he is compelled to procure another horse to complete the jour- ney, he may recoup tlie expenses necessarily incurred for that purpose, out of any claim that the latter may make for the use of the horse. Harrington v. Snyder, 3 Barb. 380. The owner of goods, delivered to a common carrier by water, when sued for freight may recoup any DEFENSES. 757 Recoupment. — Damages for fraud. damages which he has sustained by reason of the breach on the part of the master or owner of the vessel of any of the provisions of the charter- party or bill of lading. See Elwell v. SUddy, 77 N. Y. 282. In an action npon a promissory note, given for the purchase of barrels, the defendant may recoup the damages resulting from the non-performance of the vendor's contract to make such barrels as would pass inspection iinder laws relating to that subject. Spalding v. Van- deroook, 2 Wend. i31. Breach of warranty. In an action to recover the price of goods sold and delivered the defendant may show that the goods sold were, by the terms of the contract, to be delivered in good shipping order, or that there was some other warranty in relation to them, either as to quantity or quality, and upon proof of a breach of such contract of warranty on the part of the plaintiff, may recoup damages therefor. Stewart v. Bock, 1 Hilt. 122 ; S. C, 3 Abb. 118 ; Eeah v. McAllister, 8 Wend. 109 ; S. C, 4 id. 483 ; Ives v. Van Epjps, 22 id. ] 55 ; Batter- man v. Pierce, 3 Hill, I7l. Where there is an express warranty of the description and quality of goods, and the warranty is broken, the purchaser is not bound to re- turn the goods, but may retain them, and in an action for the purchase- price, may recoup such damages as result from the breach of warranty. Warren v. Tan Pelt, 4 E. D. Smith, 202 ; Real v. McAllister, 8 Wend. 109 ; Norris v. La Farge, 3 E. D. Smith, 375 ; Harris v. ^er- nard,^\?Si. 195; Van Epps \. Harrison, 5 Hill, 63. See Hay v. Pool, 52 K Y. 416; S. C. 11 Am. Eep. 719; Nichols r. Town- send, 7 Hun, 375 ; Gurney v. Atlantic & Great Western By. Co., 58 K Y. 358. Where several articles of merchandise ai'e sold with a warranty of particular quality, and the purchaser gives three separate promissory notes for the purchase-price, he may recoup his damages for a breach of such warranty in relation to one of the articles, in an action upon the third note, even though the two former ones have been paid by liim. Judd V. Hennison, 10 Wend. 512. And the fact that a portion of the articles sold were conformable to the warranty, and that those articles formed a part of the consideration of each note, does not preclude the purchaser from i-ecouping the entire damages from the last note. lb. Damages for fraud. Where property is sold, and the vendor is guilty of a fraud in the contract of sale, the purchaser may recoup damages for the fraud, even though he retains possession of the prop- erty. Van Epps V. Ha/rrison, 5 Hill, 63 ; Burton v. Stewart, 3 Wend. 236 ; Beeoher v. Vrooman, 13 Johns. 302 ; Sill v. Rood, 15 id. 230. 758 DEFENSES. Recoupment. — Must arise out of contract sued on. There is no difference in the rule whether the fraud related to a sale of real or of personal property. White v. Seaver, 52 Barb. 236. There may be frauds, too, in other cases than those of a sale of prop- erty, and whenever the action is founded upon contract, and the defend- ant can show that the plaintiff has been guilty of a fraud on his part in relation to the same contract, such damages as may have been sustained by the defendant may be recouped. Negligence is also a subject of recoupment. And when an action is brought to recover compensation for services rendered, the employer may show that the plaintiff was guilty of a breach of orders, and of negligence in the use of the defendant's property, to his damage, and such damages may be recouped. Still v. Sail, 20 Wend. 51. So, want of skill, or a neglect to use it, if possessed, is a proper matter of recoupment in an action to recover compensation for work generally, or for the performance of a particular job under a special contract. Ives V. Van Epps, 22 "VYend. 155 ; Grant v. Button, 14 Johns. 3Y7. Must arise out of contract sued on. No rule is more iirmly set- tled than that which declares that in actions in justices' courts there cannot be any recoupment, iinless the matter of recoupment arose out of tlie contract sued on, whether such contract be express or implied. There may be contracts which are available as a defense, such as a promissory note, or bill of exchange, or an account for goods sold, and the like ; but these defenses are interposed by way of set-off, and not of recoupment. The right of recoupment is distinguishable from a mere right of set-off. It corresponds with the reconvention of the civil law, in which tlie defendant was permitted to exhibit his claim against the plaintiff, provided it arose out of or was incidental to the plaintiff's cause of action. McKnight v. Devlin, 52 N. Y. 399 ; S. C, 11 Am. Rep. 715. Counter-claims include both set-offs and recoup- ments. A set-off is a money demand by the defendant against the plaintiff, and refers to a debt or demand independent of and unconnec- ted with the plaintiff's cause of action. It may exceed the plaintiff's claim or fall short of it. Recoupment always implies that the plaintiff liad a cause of action, and is confined to damages for non-performance of the very contract sued upon ; and under the practice before the Code, a balance conld not be certified in favor of the defendant. But under the former Code it was held that if the demand of the defend- ant was sufficient, he might not only defeat the plaintiff's claim by re- coupment, but recover the excess. Boston Mills v. Eull, 6 Abb. (IST. S.) 319 ; S. 0., 37 How. 299 ; 1 Sweeny, 359; Ogden v. Coddington, 2 e'. D. Smith, 317 ; Gillespie v. Torrance, 25 N". Y. 306, 310. There can DEFENSES. 759 Recoupment. — Landlord and tenant. be no doubt about the right under the present practice. Code of Civil Pro., §2949; Vol.1, 29. Landlord and tenant. In an action to recover rent for the use and occupation of premises, the tenant may recoup such damages as he has sustained in consequence of the omission of the landlord to make such repairs as he agreed to make. Whiibech v. Skinner, 1 Hill, 53 ; Dor- win V. Potter, 5 Denio, 306 ; Nichols v. Dusenhury, 2 N. Y. 288. Such claim by the tenant is not a matter of set-off, but of recoupment, lb. But, as a matter of recoupment, the tenant can only deduct the amount which the repairs would cost, and not the special damages re- sulting from the want of such repairs. Darwin v. Potter, 5 Denio, 306. And see Blanohard v. Ely, 21 Wend. 342 ; Colley v. Streeton, 2 Bam. & Cress. 273 ; Yol. I, 29. In an action by a landlord for the recovery of rent, the tenant may recoup damages for a breach of the covenant for quiet enjoyment con- tained in the lease. Mayor of New York v. Mabie, 13 IST. Y. 151. But where there is a specified rent named in the lease, and the wrongful acts of the landlord are not done under a claim of right, but are acts of mere trespass or negligence, they do not form the subject of recoup- ment by the tenant in an action for the rent. Edgerton v. Page, 20 K Y. 281 ; S. C, 10 Abb. 119. So, in an action for the recovery of rent upon a lease which re- served to the landlord a right to enter upon the premises during the term for the purpose of making repairs, the tenant cannot recoup for damages sustained in consequence of the negligent and tortious acts of the landlord and liis servants in making such repairs. Gram, v. Dres- ser, 2 Sandf. 120. The reason why there cannot be a recoupment is because the injury in such a case does not arise from any breach of any covenant or stipulation of the landlord, nor does it grow out of the terms or the consideration of the contract entered into between the parties. It is as distinct and independent a wrong as any committed upon the tenant by a stranger. lb. An eviction by the landlord will suspend all claim of rent by the landlord. This subject has been fully explained. Yol. I, 366 to 373. In an action for rent, the tenant may show that he was induced to enter into the lease by the fraudulent representation of the landlord, or that the premises leased comprehended lands which were not in fact included ; and if this is established he may recoup the damages sus- tained by him in consequence. Allaire v. Whitney, 1 Hill, 484; Whitney v. Allaire, 1 JST. Y. 305 ; S. C, 4 Denio, 554. 760 DEFENSES. Becoupment. — Who may recoup. Who may recoup. The original parties to a contract may always recoup such damages as they may have sustained, and such as are al- lowed by law, if the opposite party brings an action upon the same contract for an alleged breach of its terms or conditions. The right to recoup, however, may be restricted in some particular cases, as in those of actions by infants whose contracts are voidable but not void. If an infant sues for wages, the defendant cannot recoup damages for the non-performance of the agreement by such infant. Yol. I, tiSi. And see Infancy, ante, 662. In the case of an assignment of the right of either party under a contract, the assignee will be entitled to all the advantages, and sub- ject to all the disadvantages of his assignor. And the right of recoup- ment will pass to the assignee as an incident to the contract assigned. The right to recoup does not depend upon the form of the agree- ment or the mode by which it is evidenced. And where one party gives a written promise on his part, as by giving a promissory note for the purchase-price of property, such purchaser may recoup his dam- ages, notwithstanding the promise of the vendor was merely oral. Batterman v. Pierce, 3 Hill, 171. And the rule is the same even where the contract is under seal on one side, and by parol or oral on the other. If an action is brought upon a sealed instrument, the defendant may show that the other party was guilty of an oral fraudulent representation in relation to such con- tract or its subject-matter, by way of recoupment. Johnson v. Miln, 14 Wend. 195 ; Van Epps v. Harrison, 5 Ilill, 63 ; Whitney v. Al- laire, 1 ISr.T. 305; S. C, 4 Denio, 554; 1 Hill, 484; Ives v. Tan Epps, 22 Wend. 155. A defendant may recoup upon a sealed as well as upon an unsealed instrument. lb. ; Yol. I, 210. A party may recoup his damages, although the damages on both sides are unliquidated, or if his own damages are not liquidated. Batterman v. Pierce, 3 Hill, 171 ; Ives v. Van Epps, 22 Wend. 155 ; Mayor of New YorTcY. Mabie, 13 JST. Y. 151, 154. Where a right of recoupment exists, a mere delay in the enforcement of it will not defeat or destroy it ; nor will an omission to notify the opposite party make any difEerence to the right or the rule, even though such omission consists in the retention of goods without any notice to the vendor of the claim to recoup damages against him for a breach of warranty or for a fraud in the sale. Muller v. Eno, 14 N. Y. 597. So, where work is to be done in a particular manner, or by a particular day, an acceptance of the work, after the time, or with its deficiencies, will DEFENSE8. 761 Kecoupment. — In what cases not allowed sureties. not prevent a recoupment. Bloodgood v. Ingoldsby, 1 Hilt. 388 ; Barber v. Hose, 5 Hill, 76. In what cases recoupment not allowed sureties. In all cases of recoupment it is the principal party to the contract alone that has the election whether to recoup. Aiid, therefore, a mere surety is not permitted to set up a defense by way of recoupment, even when sued upon the contract of Ins principal, for the performance of which he is surety. Lasher v. Williamson, 55 N. Y. 619 ; Emery v. Baltz, 22 Hun, 434 ; Henry v. Daley, 17 id, 210. If a surety sues his co-surety for contribution the defendant cannot set up by way of counter-claim,, recoupment, or set-off, a cause of action existing in favor of the principal against the plaintifi. CfBlenis v. Earing, 57 N. T. 649 ; Davis v. Toulmin, 77 id. 280. But if the principal and surety are sued together upon their contract, a successful recoupment by the principal will inure to the benefit of the surety, although he could not, if sued alone, avail himself of the defense. Springer v. Dwyer, 50 N. Y. 19. A recoupment is merely setting off one distinct cause of action against another, although both of them arose out of the same con- tract. Oillesjaie v. Torrance, 25 IST. Y. 306 ; S. C, 4 Bosw, 36. And, therefore, a mere accommodation indorser of a note, given for chattels sold, cannot, in an action at law against him on the note, avail himself of a breach of warranty as to the quantity of the goods or chattels, by way of recoupment as a defense, either total or partial. lb. The claim which may be recouped is a distinct cause of action, which the prin- cipal may bring an action upon, or he may use it by way of de- fense, and this right of election belongs exclusively to the principal, BO that the principal cannot do any act which will impair that right. lb. The defense of recoupment, in such a case, does not rest upon the principle of failure of consideration, but of setting off one distinct claim or cause of action asjainst another. lb. The sureties of a tenant cannot, in an action against them for the rent, avail themselves of an eviction of the tenant as a defense by way of recoupment, since that defense is available exclusively by the tenant. Lafa/rge v. Halsey, 1 Bosw. 171. Where goods sold fail to correspond with the description or warranty of them in the contract of sale, this does not constitute a defense by way of recoupment as a failure of consideration, or for the breach of warranty, where the action for the price is brought against a third party upon a promissory note given by him and accepted as payment for the goods. Delano Y. Rawson, 10 Bosw. 286. In such a case the right 762 DEFENSES. Recoupment. — Actions for torts. to recoup is exclusively that of the purchaser, and the third party who gave such note cannot avail himself of any such defense. lb. Actions for torts. We have already seen, ante, 755, that the de- fense of recoupment is not available in any actions but those arising on contract. And where the action is for a tort, there cannot be any recoupment, even though the claim is founded upon a contract relating to the same matter. Pattison v. Michards, 22 Barb. 143. And where, an action was brought against the defendant for the re- covery of damages for the diversion of a stream of water from the plaintiff's land, by cutting ditches through the defendant's land above the plaintiifs lot, it was held that it was no defense to show that the plaintiff had not performed, or that he had violated an agreement, made between the parties four years previously, relative to the deepen- ing of the channels of the stream through their respective lands, when it was not alleged or proved that there was any connection between that agreement and the cause of action sued on. lb. Such an agree- ment is not available by way of recoupment of damages. lb. So, in an action for a tort, the defendant cannot recoup damages sustained by him for another tort committed by the plaintiff. Murden V. Priment, 1 Hilt. 76. So, too, in an action for a tort there cannot be a recoupment even for a claim arising upon contract. Piser v. Stearns, 1 Hilt. 86 ; Drale v. Goehroft, 4 E. D. Smith, 34. But in an action upon notes given to the plaintiff for his wages as a workman in the defendant's iron works, it has been held that the de- fendant miglit recoup such damages as he had sustained from the plaintiff's acts in destroying and injuring drawings, plans, models, etc., in such factory, contrary to his duty. Allaire Works v. Guion, 10 Barb. 55. But since the damages which are allowed by way of recoup- ment are such only as arise out of the plaintiff's breach of his own contract, the deduction must be limited to the actual loss, and nothing can be allowed on account of the malice with which the acts were done. lb. So, where gold was delivered to a manufacturer to be wrought into jewelry, and he, instead of doing that, fraudulently made and de- livered articles merely plated upon base metal, and received payment for his labor, it was held that on discovering the fraud the party de- ceived might recover as damages the value of the gold delivered and the sum paid for the pretended manufacturing. Harris v. Bernard, 4 E. D. Smith, 195. But it was also held, that on proof that the base jewelry contained some gold, which was worth a specified sum, the DEFENSES. 763 Becoupment. — Election to recoup. value of such gold ought to be allowed in diminution of the plaintiff's damages. lb. Under the Code of Civil Procedure, a defendant may intei-pose a counter-claim which tends in some way to diminish or defeat the plaint- iff's recovery, if it consists of a cause of action between the proper parties arising out of the contract or transaction set forth in the com- plaint as the foundation of the plaintiff's claim, or connected with the subject of the action. Code of Civil Pro., § 501. If, therefore, the complaint sets forth a cause of action in tort, the answer may set up as a counter-claim a cause of action to recover damages sustained by the defendant by reason of the wrongful acts of the plaintiff, if it is connected with the subject of the action. Ca/rpenter v. Manhattan Life Ins. Co., 22 Hun, 49. See Glen <& Hall Manuf. Co. v. Hall, 61 ]Sr. Y. 226 ; S. C, 19 Am. Rep. 278. Election to recoup. Formerly, a defendant in an action on con- tract, who had a right of recoupment in that action, was obliged to decide before answering whether he should avail himself of his right to recoup, or should bring an independent action for the re- covery of his damages. It was alwaj's optional with him which remedy he should adopt. Ives v. Yan Ejyps, 22 Wend. 155 ; Batter- man^. Pierce, 3 Hill, 171 ; MoKnight v. Devlin, 52 N. Y. 399 ; S. C, 11 Am. Eep. 715; Dunham v. Bower, 77 E". Y. 76; Gillespie r. Torrance, 25 id. 306, If he elected to use his claim by way of recoup- ment, he must be content to have it limited to a partial diminution or a total abatement of the plaintiff's detaand, and could not recover a balance, if any, in his favor. Batterman v. Pierce, 3 Hill, 171 ; SicTcels V. Puttison, 14 Wend. 257 ; MoKnight v. Devlin, 52 E". Y. 399; Gillespie v. Torrance, 25 id. 306. So, if he used his claim by way of recoupment and his damages were more than sufficient to extinguish the plaintiff's demand, he could afterward maintain no action to re- cover the residue of the claim so used. McKnight v. Devlim,, 52 N. Y. 399, 402 ; Batterman v. Pierce, 3 Hill, 171, 174 a; Wilder v. Case, 16 Wend. 583 ; Stever v. Lamoure, Hill & Denio, 352 ; Britton v. Turner, 6 IST. H. 481. Under the present practice, the right to elect between recoupment and an independent action for damages, although apparently taken away by section 2947 of the Code of Civil Procedure, is in fact preserved by section 2948 of that act, which excepts from the operation of the preceding section a counter-claim consisting of a claim for unliquidated damages. See Yol. I, 28, 29. But if the defendant elects to recoup, he is not limited to the ex- tinguishment of the plaintiff's demand, but may have judgment for the 764 DEFENSES. Recoupment. — Election to recoup. excess, or so much thereof as is due from the plaintiff, unless it is more than $200. If it is more than $200, or if no part of it is due from the plaintiff, the justice must at the election of the defendant either first, set off so much of the counter-claim as is sutiicient to satisfy the plaintiff's demand, and render judgment for the defendant for costs, in which case the defendant may maintain an action for the residue ; or, secondly, render a judgment of discontinuance with costs, in which case the defendant may thereafter maintain an action for the whole. "Where part of the excess is not due from the plaintiff, the judgment does not prejudice the defendant's right to recover from another per- son so much thereof as the judgment does not cancel. Code of Civil Pro., § 2949. Vol.1, 29. The right of the defendant to elect between recoupment and an independent action is not defeated by a transfer of the claim against him and the bringing of a suit in the name of the transferee, except in cases where an indorsee or transferee of negotiable paper acquires a title discharged of all equities, and valid against all defenses. 'McKnight V. Devlin, 52 IST. Y. 399 ; S. C, 11 Am. Eep. 715. There may be cases in which the trial of the first action necessarily determines the whole question, including the right to any damages on the part of the defendant ; and in such cases the defendant will be compelled to litigate the question in the first action, or lose all remedy. Bellinger Y. Craigue, 31 Barb. 534; Edwards y. Stewart, 15 id. 67. And see ante, 752, Former Recovery. If the facts upon which the right of the plaintiff to recover depends necessarily negative any right of recoupment on the part of the defendant, so that a recovery on an issue raised by a mere general denial of those facts would determine that the defendant had no claim for damages arising out of a breach of the contract in suit, then the right of election does not exist, or at least will not survive a recovery by the plaintiff. See Dunham v. Bower, 77 N. Y. 76. And it would seem that where a substantial performance of a contract will authorize a recovery, although it will not determine that the defendant has no claim for damages for a failure to literally perform it, a recovery by the party claiming performance will bar a subsequent action for such damages. But these are exceptions to the general rule ; and although a pur- chaser, when sued for the price of goods, may set up a breach of war- ranty as a defense by way of recoupment or counter-claim, yet he is not bound to do so, or be precluded from maintaining any claim or action in respect to it. And he may, after the recovery of a judgment DEFENSES. 76." Becoupment. — Pleading. — Pendency of another action. — Damages. against him, for the price of the goods, bring an action against the ven- dor for a breach of his warranty. Barih v. Burt, 43 Barb. 628 ; 8. C, 17 Abb. 349. Where, goods are oought and a promissory note is given by tlie pur- chaser for the price, he may, in an action brought by the vendor upon the note, set up as a defense the fraud of tlie vendor upon the sale, and recoup his damages therefor ; and if he at first interposes such defense, but afterward, before the trial, withdraws it, before any adjudication takes place upon it, he may subsequently maintain an action against the vendor for the fraud, and the judgment on the note will not be any bar to the action. McDonald v. Christie, 42 Barb. 36. Defense must be pleaded. A defense, by way of recoupment of damages, must always be pleaded to be available. It is founded on the principle that the defendant has a right of action arising out of the con- tract on which he is sued, even though the plaintiff may also have a right of action which is founded upon the breach of some other branch of the same contract. Crillespie v. Torrance, 25 N. T. 306, 310. And, although the Code has introduced a new system of pleadings which requires all affirmative defenses to be pleaded, yet there is no new rule mtroduced in relation to this defense, which must have been introduced under a plea or notice, even before the enactment of the Code. Eldridge v. Mather, 2 N. Y. 157 ; Beiffendorff v. Gage, 7 Barb. 18 ; Stever v. Lairioure, Hill & Denio, 352 ; Barber v. Rose, 6 Hill, 76 ; Trowhridge v. Mayor of Albany, 7 id. 430. Pendency of another action. The pendency of another action, in favor of the defendant against the plaintiff, for the recoveiy of dam- ages for a breach of a contract, will not prevent a recoupment of the same damages by way of defense to a subsequent action, brought by the plaintiff against such defendant upon the same contract. Naylor v. SchencTe, 3 E. D. Smith, 135 ; Fabhricotti v. Launitz, 3 Sandf . 743 ; WilUie\. Northam, 2,^os^. 162; Fuller y. Read, 6Duer,697; S. C. reported, 15 How. 236. And see Harris v. Hammond, 18 id. 123. If, however, the defendant has recovered a judgment on his claim in a former action, he cannot then use the claim by way of recoupment in the second action, though he may use it by way of set-off in a proper case. Damages. The damages which may be recouped are such as neces- sarily arise from the plaintiff's breach of the agreement sued on, and it Is not proper to allow as damages such profits as the defendant might have made had the plaintiff performed his part of the agreement. Horner v. Wood, 16 Barb. 386. In an action by a tenant against a 766 DEFENSES. Set-off.— Nature of setoff. landlord, to recover damages for a refusal to give possession of the demised premises, the plaintiff may recover damages arising from ex- penses incurred in preparing to remove to the premises, together with the difference between the said value of the rent and the sum agreed to be paid ; but he is not entitled to the profits which he might have made in his business, had he occupied the premises. Giles v. 0^ Toole, 4 Barb. 261 ; Driggs v. Bwight, 17 Wend. Tl. So in an action for the price of building a steamboat, the defendant may recoup such damages as will supply defects in the boat, or make it what the contract speci- fied ; but he cannot recoup as damages the profits which he might have made had the boat not failed to perform its trip in consequence of the defective machinery. Blanchard v. JEly, 21 "Wend. 342. So, in an action by a landlord for rent, the tenant may recoup the amount it would have cost to put the premises in such repair as the landlord agreed to do, but he cannot recover damages for the injury or detriment which resulted to him for the want of such repairs. Darwin V. l-'otter, 5 Denio, 306. In an action by the plaintiff to recover for the use of steam power for manufacturing purposes, the defendant cannot recoup as damages such profits as he could have made by the sale of the manufactured articles to other persons, but which he was prevented from making by reason of the plaintiff's breach of the contract in not furnishing the former as agreed. Horner v. Wood, 16 Barb. 386. So, in an action for the price of building a house, the defendant may recoup the damages sustained by the non-completion of the house at the time specified, if such defendant was himself going to occupy it, and in such case the law will imply damages for the want of the use of it, and the rule is the same if it appear -that the defendant was deprived of an opportunity of renting the premises in consequence of his plaintiff's default. Wagoner v. Corkhill, 40 Barb. 1Y5. But if it appears that the building was put i;p for renting purposes, and that the defendant did not, in fact, lose any opportunity for renting it, by rea- son of the plaintiff's delay, the defendant cannot recoup the value of the rents and profits from the time when the building ought to have been completed. lb. §16. Set-off. Nature of set-off. A set-off is a counter or cross de- mand which a defendant sets up or interposes to the demand of the plaint- iff, for the purpose of reducing its amount, of extinguishing it altogether, or for the purpose of obtaining a judgment thereon in his own favor against the plaintiff. A set-off was unknown to the English common law, according to which mutual debts were distinct demands, upon which each party must sue, if he would enforce the collection of his DEFENSES. 767 Set-off. — Nature of set-off. claim ; and if either party brought an action for his claim against the other, the defendant could not set off his demand and thus terminate the controversy in a single action. To remedy this inconvenience, a statute was enacted which provided for the setting off of demands in actions arising upon contract. 2 Geo. II, chap. 22. The provision of that statute, or others of a similar nature, prevail quite generally in this country. In courts of record, a defendant may set off his demand or bring a separate action, at his election. But in justices' courts a different rule prevails ; and when a defendant may set off his demand, it is a general rule that he 'must do so or lose his demand. See Code Civil Pro., §§ 2947, 2948. Yol. I, 28, 29. It is the policy of the law to prevent unnecessary litigation, and therefore it favors the adjustment of mutual claims and demands by setting them off at the first opportunity. This rule extends so far that the courts will enforce the riglit of set-off, even in a case in which a promise has been made to pay in ready money, instead of adjusting the demands by way of set-off. Eland v. Karr, 1 East, 375 ; Corn- forth V. Hivett, 2 Maule & Selw. 510 ; Leehmere v. Hawhins, 2 Esp. 626 ; Downer v. Eggleston, 15 Wend. 61. In the last case cited, the court said, at pages 55, 56 : " Indeed, in every case of set-off under the statute, there is a technical violation of the defendant's promise to pay the plaintiff's debt in money when it became due ; but thei-e is, upon the other hand, a similar violation of the plaintiff's agreement to pay the debt which he owes to the defendant, which is also due. The law knows no difference in the obligation of one party to keep his promise more than the other. And the statute of set-off proceeds upon the equitable principle, that where both debts are justly due, hj the neglect of each party to perform his agreement, the one debt should compensate the other ; so that neither party shall be permitted to re- cover the money which is due from the other, while he continues to withhold that which is legally and equitably due from himself." The same case also holds, that a plaintiff, who can recover his claim or demand under the common counts, cannot deprive a defendant of his right to set-off, by declaring specially for his cause of action in the complaint. It will be observed that a defense, by way of set-off, differs materi- ally from that of recoupment. In the latter the defendant seeks to defend the action totally or partially, on the ground that the plaintiff is himself guilty of a breach of the same contract on which he has sued the defendant ; while in the former the demand of the defend- ant may be an entirely distinct claim, which has no relation or refer- 7G8 DEFENSES. Counter-claim. ence to the claim on which the plaiiiti£E's action is founded. See Re- coupment, ante, 755. The Eevised Statutes defined and limited the cases in which a set-off could be pleaded and also the cases iu which it must be pleaded to be available as a ground for judicial relief. See 2 R. S. 354, § 18, part 3, chap. 6, title 2. But the Code of Civil Procedure has embraced the defenses of set-off and recoupment in the counter-claim authorized by that act, and the provisions of the Revised Statutes relating to set-offs have been repealed. Laws of 1877, chap. 417. § 17. Counter-claim. There are but two forms of pleading on the part of the defendant authorized by the present system of practice, and these are an answer or demurrer. Code of Civil Pro., § 2935. The answer may consist of a general denial of each allegation of the com- plaint, of a specific denial of one or more of the material allegations thereof, or when verified under the act of 1881, a denial of knowledge or information sufficient to form a belief. It may also set forth in a plain and direct manner, new matter, constituting one or more defenses or counter-claims. Code of Civil Pro., § 2938 ; Laws of 1881, chap. 414. The term ' ' new matter " means matter extrinsic to the matter set up in the complaint as the basis of the cause of action. Manning v. Winter, 7 Hun, 482. "New matter constituting a defense" to an ac- tion on contract would be matter which admitted the contract but avoided its effect, such as a release, the statute of limitations, a dis- charge in bankruptcy, etc. Gilbert v. Oram, 12 How. 455 ; Brazill V. Isham, 12 N. T. 9, 17; Bellinger v. Craigue, 81 Barb. 534; Budde V. Buohgaber, 3 Duer, 684. There is a distinction between a counter- claim and a defense. A counter-claim is an affirmation of a cause of action against the plaintiff in the nature of a cross action, and upon which the defendant may have an affirmative judgment against the plaintiff. Fettretch v. McKay, 47 N. Y. 426 ; S. C, 11 Abb. (N. S.) 453 ; Williams v. Willis, 15 id. 11. A defense on the other hand is the assertion of matter which will not support an action, but must be used, if used at all, to defeat an action. Matter which shows that the plaintiff never had a cause of action against the defend- ant which the law would aid him in enforcing is no counter-claim. Prouiy v. Eaton, 41 Barb. 409. See Bogers v. King, 66 id. 495. The Code of Civil Procedure has also, in general language, pre- scribed the nature of the demand which may be interposed as a coun- ter-claim in an action in a justice's court. From an analysis of these provisions of the Code it will be seen that the counter-claim author- ized by that act must possess the following requirements : DEFENSES. 769 Counter-claim. 1. It must be of such a nature that, if made the subject of an inde- pendent action, a justice's court would have jurisdiction of the action. 2. It must, in some way, tend to diminish or defeat the plaintiff's recovery. 3. It must be a cause of action against the plaintiff or, in a proper case, against the person whom he represents. 4. It must be a cause of action in favor of the defendant, or of one or more defendants between whom and the plaintiff a separate judgment may be had in the action. 5. It must be either a cause of action arising out of the contract or transaction, set forth in the complaint as the foundation of the plaint- iff's claim, or connected with the subject of the action ; or, 6. In an action on contract, any other cause of action on contract existing at the commencement of the action. Code of Civil Pro., §§ 501, 2945. But the counter-claim specified in subdivision 6 of the above analy- sis is subject to the following rules : 1. If the action is founded upon a contract which has been assigned by the party thereto, other than a negotiable promissory note or bill of exchange, a demand existing against the party thereto, or an as- signee of the contract, at the time of the assignment thereof, and be- longing to the defendant, in good faith, before notice of the assign- ment, must be allowed as a counter-claim, to the amount of the plaint- iff's demand, if it might have been so allowed against the party, or the assignee, while the contract belonged to him. 2. If the action is upon a negotiable promissory note or bill of exchange, which has been assigned to the plaintiff after it became due, a demand existing against a person who assigned or transferred it, after it became dne, must be allowed as a counter-claim, to the amount of the plaintiff's demand, if it might have been so allowed against the assignor while the note or bill belonged to him. 3. If the plaintiff is a trustee for another, or if the action is in the name of a plaintiff who has no actual interest in the contract upon which it is founded, a demand against the plaintiff shall not be allowed as a counter-claim ; but so much of a demand existing against the per- son whom he represents, or for whose benefit the action is brought, as will satisfy the plaintiff's demand, must be allowed as a counter-claim, if it might have been so allowed in an action brought by the person beneficially interested. Code of Civil Pro., §§ 502, 2945. Yol. 1, 27, 28. A justice of the peace has no jurisdiction of an action against an executor or administrator, as such. Code of Civil Pro., S 2863; 97 - 770 DEFENSES. Counter-claim. — Jurisdiction. — Must tend to diminisU or defeat recovery by plaintitf. siibd. 5. But when an action is brought in his court against any other person in a representative capacity, the defendant may set fortli as a counter-claim a demand belonging to the person whom the defendant represents, where the person so represented would have been entitled to set forth the same in an action against him. Code of Civil Pro., §§ 505, 2946. But the defendant cannot take judgment against the plaintiff on such counter-claim for a sum exceeding $200. Code of Civil Pro., §2946. Vol. I, 28. In an action brought by an executor or administrator in his repre- sentative capacity, a demand against the decedent, belonging at the time of his death to the defendant, may be set forth by the defendant as a counter-claim, as if the action had been brought by the decedent in his life-time ; and if a balance is found to be due to the defendant, judgment for such balance must be rendered against the plaintiff in his representative capacity. But the judgment taken against the plaintiff on the counter-claim cannot exceed $200 ; and execution can issue on the judgment only in a case where it could be issued upon a judgment in an action against the executor or administrator. Code of Civil Pro., §§ 506, 2946. Jurisdiction of the counter-claim. The question whether the cause of action interposed as a counter-claim is of such a nature as to be within the jurisdiction of a justice's court is to be determined by those provisions of the statutes which define and limit the jurisdiction of a justice of the peace. See Vol. I, 1. The language of the statute does not seem to indicate that the right to interpose a counter-claim is to be determined by the amount, but rather by the nature, of the defendant's demand. Must tend to diminish or defeat a recoyery by the plaintiff. It is not every cause of action existing in favor of the defendant against the plaintiff, and arising upon contract, that can be made the subject of a counter-claim. The demand which can be used as a counter-claim must be a cause of action upon which something is due the defendant which can be applied in diminution of the plaintiff's claim. For instance, a cause of action for the specific performance of a contract in reference to real estate, though arising upon contract, cannot be set up as a counter-claim in any court unless it grew out of or was connected with the cause of action alleged in the complaint. Waddell v. Darling 51 N. T. 327. A counter-claim, when established, must in some way qualify or must defeat the judgment to which the plaintiff is otherwise entitled. National Fire Ins. Co. v. McKay, 21 N. Y. 191. DEFEKSES. 771 Counter-claim. — Must be a cause of action against the plaintiff, etc. Must be a cause of action against the plaintiff, etc. It is also essential to tlie right to interpose a cause of action as a counter-claim, that the cause of action is against the plaintiff or, in a proper case, against the person whom he represents. Vol. I, 28, § 501. If an executor or administrator brings an action in his representative capacity, the defendant in the action may set forth as a counter-claim any demand against the decedent which belonged to him at the time of the death of the plaintiff's intestate or testator, as if the action had been brought by the decedent in his life-time. Code of Civil Pro., § 506. Under the former statute of set-offs, the demand which could have been interposed by the defendant in an action by the administrator must have been due and payable in the life-time of the decedent. Whether the same rule applies to the demand interposed as a counter- claim under the Code of Procedure has not been expressly determined. See Jordan v. National Shoe and Leather Bank, T4 1^. Y. 467. Where an action, founded upon any contract except a negotiable promissory note or bill of exchange, is brought by an assignee of the contract, the defendant may interpose as a counter-claim any other cause of action on contract existing at the time of the commencement of the action against the original party to the contract in suit, or any assignee thereof who had title to it prior to the plaintiff, provided the cause of action sought to be interposed as a counter-claim, (1) existed against the original party to the contract, or the assignee of the con- tract, at the time of tlie assignment thereof, and (2) belonged to the defendant in good faith before notice of the assignment, and (3) is of such character that it might have been allowed against such party or assignee while the contract belonged to him. Code of Civil Procedure, §§ 501, 502 ; Yol. I, 2S. The cause of action so interposed by the defend- ant will be allowed only in extinguishment of the plaintiff's demand, and for the excess, if any, the defendant may still have his action against the person against whom the cause of action exists. Code of Civil Pro., §§ 502, 2949 ; Yol. I, 28, 29. Must be in favor of the defendant or one or more defendants, etc. The cause of action which may be interposed as a counter- claim must be in favor of the defendant or one or more defendants, between whom and the plaintiff a separate judgment may be had in the action. Yol. I, 28. Where an action is brought against a surety without joining his prin- cipal, the defendant cannot set up as a counter-claim a cause of action existing in favor of the principal against the plaintiff. Emery v. Baltz, 22 Hun, 434; Lasher v. Williamson, 55 N. Y. 619; O'Blenis v. 772 DEFENSES. Counter-claim. — Must be in favor of the defendant, etc. Karing, 57 id. 049 ; Sprubger v. Duoyer, 50 id. 19. But when the principal and surety are sued together, the principal may set up a claim in his favor against the plaintiff, and the successful recoupment of the principal will inure to the benefit of the surety. lb. In an action against a sole defendant tlae question as to the existence of a cause of action in his favor can be readily determined. A " cause of action " implies a right to bring an action, and some one who has a right to sue, and some one who may lawfully be sued. It is the right to prosecute an action with effect. Douglass v. Forrest, i Bing. 686 ; Patterson v. Patterson, 59 N. Y. 579 ; S. C, 17 Am. Rep. 384. It does not run from the making of the promise, if it is to do some thing at a future time, but only from the expiration of that time. Thorpe v. Coomhe, 8 Dow. & Ry. 347. It does not accrue or arise from the making of the contract alone, but out of the non-performance of it as well. Patter- son V. Patterson, 59 N". Y. 574, 578. It cannot be said to "exist" in favor of the defendant until he is entitled to bring and maintain an action to enforce it. But the defendant need not have been the original owner of the right of action in order to entitle him to enforce it by way of counter- claim. " "When a claim or demand can be transferred, the transfer thereof passes an interest which the transferee may enforce by an action or special proceeding, or interpose as a defense or counter-claim in his own name, as the transferor might have done, subject to any defense or counter-claim existing against the transferor, before notice of the transfer, or against the transferee. " Code of Civil Pro., § 1909. The word " transfer," used in the provision of the statute quoted, in- cludes not only a change of title by assignment, but also the various cases in which the title passes in invitum, or without a formal assign- ment, as by the appointment of a receiver. "Where a person is sued in a representative capacity he may set forth, as a counter-claim, a demand belonging to the person whom he repre- sents, if the person so represented would have been entitled to set up the demand as a counter-claim had the action been brought against him instead of liis representative. See Code of Civil Pro., § 505 ; Vol. I 28. Under the former statutes allowing the right of setoff in favor of an assignee of the demand, a purchased demand was not available as a set-off unless the purchase was absolute, for if the demand was pur- chased upon condition that the title should pass in case it is allowed as a set-off, but not otherwise, the demand was not available as a set-off. MUler V. Oilman, 7 Cow. 469; Satterlee v. Ten EyoTe, id. 480; Butler V. Mies, 26 How. 61. DEFENSES. 773 Counter-claim. — Distiuct independent demands. A demand arising upon contract was verbally assigned by a third party to the defendant in the action, in this language : " I assign this claim over to you, if there is any difficulty ; " but it was held that the demand was not available as a set-ofE or a counter-claim, because it was a mere conditional assignment, without consideration, and intended to further litigation. Arnold v. Johnson, 28 How. 249. But where the purchase was absolute and made before the commence- ment of the action, the demand was available as a set-off, although it bad not been paid for, if there was an agreement to pay. Everit v. Strong, 5 Hill, 163; S. C, 7 id. 5S5. See Cummirbgs v. Morris, 25 N. Y. 625 ; Hays v. Rathorn, T4 id. 486. Where there are several defendants to an action, and one of them sseks to interpose, as a counter-claim, a cause of action in his favor, the further question arises, whether a separate judgment may be had in the action between him and the plaintiff, and if so, the counter- claim may be pleaded, if otherwise authorized by the statute. But oae of two joint defendants cannot set up any matter as a counter- claim imless there can be, under the pleadings, a several judgment against him. National State Bank of Newairk v. Boylan, 2 Abb. N. 0. 216. It is sufficient, however, that a several judgment may be rendered in the action between the plaintiff and the defendant seeking to interpose the counter-claim ; and the fact that a joint judg- ment may be given does not exclude the allowance of the counter- claim. Bathgate v. Hashin, 59 JS". T. 533. Joint claims in favor of two out of a number of defendants cannot be counter-claimed, set off or recouped when the action is such that a joint judgment cannot be rendered against such two, separately from the others. Boohover v. Harris, 11 Jones & Sp. 548. See, also, AUgoever V. Edmunds, 66 Barb. 579. When a suit is brought against two or more persons as partners, a several claim in favor of one defendant only cannot be enforced as a counter-claim. Hurlhurt v. Post, 1 Bosw. 28 ; Peabody v. Bloomer, 3 Abb. Pr. 353 ; 6 Duer, 53 ; Mott v. Bur- nett, 2 E. D. Smith, 50. And where one defendant is sued upon an individual liability, he cannot set up as a counter-claim a claim which he holds jointly with another against the plaintiff. Baldwin v. Briggs 51 How. 477; S. C, 53 id. 80; Baldwin v. Berrian, id. 81; Camip- h U V. Genet, 2 Hilt. 291 ; Belknap v. Mclntyre, 2 Abb. 366 ; Ho;p, T&ins V. Lam, 87 N. T. 501. Distinct independent demands. Subject to the qualifications and limitations before mentioned, a defendant in an action on contract may interpose as a counter-claim any cause of action arising upon another 774 DEFENSES. Counter-claim. — Distinct independent demands. contract existing in his favor against the plaintiff at the commence- ment of the action. Parsons v. Sutton, 66 N. Y. 92 ; Code of Civil Pro., § 501. Thus, where an action is brought to recover the pur- chase-price of goods sold and delivered the defendant may set up a countei-claim for a breach of warranty in the sale of other goods by the plaintiff although they have been accepted and paid for by the de- fendant. Conor V. Dempsei/, 49 N. Y. 665. A counter-claim under the Code of Civil Procedure may be either for liquidated or unliqui- dated damages if they arise upon contract. Sohuiart v. Harteau, 34 Barb. 447 ; Boston Mills v. Eull, 6 Abb. (N. S.) 319 ; S. C, 1 Sweeney, 359 ; 37 How. 299. And it does not change the rule that the damages arise on a contract different from the contract on which the action is brought. lb. ; Lignot v. Redding, 4 E. D. Smith, 285. In an action upon a contract, a balance due the defendant upon an unsettled partnership account between the parties is a proper coun- ter-claim where the partnership was dissolved before the commence- ment of the action ; and the defendant can ask for an accounting and the application of the balance found due him in extinguishment of the plaintiff's demand. Waddell v. Darling, 51 N. Y. 327. But while a defendant may plead an unliquidated demand in his favor as a counter-claim, he is not obliged to do so at the risk of losing his demand. He may elect to rely upon other defenses or let judg- ment be taken against him, and afterward bring an action for' the re- covery of his damages. See Code of Pro., § 2948. The right to interpose a counter-claim in an action brought by an as- signee of a contract, or by one to whom the right of action has been ti-ansferred by assignment or otherwise, has been already noticed. Ante, 769. If the plaintiff is a mere trustee, or if he has no actual interest in the contract in suit, no demand against him can be allowed as a counter-claim, but so much of a demand existing against the person whom he represents, or for whose benefit the action is brought, as will satisfy the plaintiff's demand, will be allowed if it might have been so allowed in an action brought by the person beneficially interested. Code of Civil Pro., § 502 ; Yol. I, 28. In actions of tort, a defendant is not allowed to set forth as a coun- ter-claim a cause of action for a tort committed by the plaintiff which did not arise out of the transaction set forth in the complaint as the foundation of the plaintiff's claim, and which is in no way connected with the subject of the action. Murden v. Priment, 1 Hilt. 75 ; Askins v. Mea/rns, 3 Abb. 184 ; Ryan v. Lewis, 1 Hun, 429 ; S. C, 5 Sup. Ot. (T. & C.) 662 ; Barhyte v. Hughes, 33 Barb. 320. Nor DEFEITSES. 775 Counter-claim.- — Demands arising out of plaintiffs claim, etc. can a defendant in an action of tort set up as a counter-claim a cause of action upon contract in no way connected witli the subject of the action. Smith v. Hall, 67 N. Y. 48 ; Peoples. Dennison, 84 JST. T. 272. Thus, in an action for conversion the defendant cannot set up an in- debtedness of the plaintifE to him arising out of a breach of contract. Smith V. Hall, 67 N. Y. 48. So in an action to recover damages sus- tained by the plaintiffs by reason of a purchase of stock induced by the fraudulent representations of the defendants, the latter cannot set up as a counter-claim a demand arising out of another contract subse- quent to the sale in question. Miller v. Barber, 4 Hun, 802 ; affirmed, 66 N. Y. 558. In an action for an assault and battery the defendant cannot set up as a counter-claim an assault and battery committed upon him by the plaintiff just before the time of the assault complained of. Barhyte v. H^igheS, 33 Barb. 320 ; SohnaderhecJc v. Worth, 8 Abb. 37. So in an action for the obstruction of a miU-race the defendant cannot counter-claim damages sustained by him from an increased flow of water caused by the wrongful act of the plaintiff. Bloomer v. Morss, 68 N. Y. 623. Nor in an action for the diversion of a water-course can the defendant counter-claim damages sustained by him by reason of the non-performance by the plaintiff of an agreement made some four years prior to the diversion, to deepen the channel of the stream, there being no connection between the agreement and the cause or subject of the action. Pattison v. Richards, 22 Barb. 143. Demands arising out of or connected with the plaintiff's claim. The Code of Civil Procedure permits a defendant to interpose as a counter-claim a cause of action in his favor against the plaintifE arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action, where it will tend in some way to defeat or diminish the plaint- iff's recovery. Code of Civil Pro., § 501. VoLI,28. The language of the statute is general, and does not limit the cases in which the counter- claim may be interposed to actions on contract, nor does it prescribe the character of the cause of action which is the subject of the counter- claim further than to require that it shall tend to defeat or diminish the plaintiff's recovery, and arise out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim, or be con- nected with the subject of the action. A counter-claim which possesses these requisites may be interposed in an action for a tort. Chamhoret V. Cagney, 2 Sweeney, 378 ; S. C, 10 Abb. (N. S.) 31 ; 41 How. 125 ; S. C. again, 3 Jones & Sp. 474 ; Carpenter v. Manhattan Life Ins. Co., 22 Hun, 49. The term " subject of the action,'" as used in the statute, 776 DEFENSES. Counter-claim. — Demands arising out of plaintiflTs claim, etc. must be deemed to laean the facts constituting the plaintiff's cause of action. Chamboret v. Gagney, 2 Sweeney, 378 ; Lehmair v. Griswold, 8 Jones & Sp. 100. It is not easy to define what was intended by the general phrase "connected with the subject of the action." The lan- guage, however, plainly indicates a design to enlarge the scope of the old rule relating to set-off and recoupment, and to authorize an appli- cation of the equitable principle that cross-claims growing out of the same matter or controversy should be determined in one action, and the balance duly found to be due should be recovered. Garjpenter v. Manhattan Life Ins. Co., 22 Hun, 49. In an action to recover for the conversion of wood, an answer by the defendant alleg- ing that the wood in controversy was the product of trees growing upon lands upon which he had a mortgage ; that the plaintiff being a junior mortgagee in possession, knowing that the lands were an in- sufficient security, and that the mortgagor was insolvent, wrongfuUyand fraudulently, and with intent to cheat and defraud the defendant, and to impair the security of his mortgage committed waste on said premi- ses by cutting the said wood to defendant's damage, sets up a counter- claim connected with the subject of the action. lb. So where lands have been conveyed by the same grantor to two different persons, and the one receiving the first deed has gone into possession and brought an action against the other to set aside the second deed as a cloud upon title, the defendant may allege as a counter-claim that the plaintiff's deed was fraudulently procured and ask to have it set aside. The right to set aside the fraudulent conveyance is a cause of action arising out of the transaction set forth in the complaint, and constitutes a counter- claim within the meaning of the Code. Moody v. Moody, 16 Hun, 189. In an action by a guest against a keeper of a boarding-house or inn, to recover damages for the loss of the plaintiff's goods through the neg- ligence and carelessness of the defendant and his servants, the defend- ant may set up as a counter-claim the plaintiff's indebtedness to him for board, as the cause of action for board arises out of the contract for bailment which is the foundation of the plaintiff's claim. Harris v. Gwret, 9 Abb. (N. S.) 199. The defendant in such action could recoup the amount of his board bill, but could not plead it as a set-off. Classen V. Leopold, 2 Sweeney, 705. In an action on contract for work and materials, the defendant cannot set up as a counter-claim that the plaint- iff had fraudulently induced him to pay moneys falsely claimed under the contract in excess of the true value of the work and demand repay- ment. In order that these facts may be made available as a counter- claim, the defendant must waive the tort and seek the recovery of the t>EFEXSES. 777 Coanter-claim. — EflFect of tlie statute of limitations. — Pleading. moneys overpaid as on an implied contract ; and the answer must set forth facts showing the election to proceed on the implied contract and not for the wrong. The wrong in such case does not arise out of and is not connected with the claim set up in the complaint, but is an inde- pendent cause of action. Berrian v. Mayor of New YorTc, 15 Abb. (X. S.) 207. Etfect of the statate of limitations. A cause of action barred by the statute of limitations cannot be effectually interposed as a defense or counter-claim. Code of Civil Pro., § 397. If, however, the de- fendant has set up a counter-claim in an action before it was barred by the statute, and the complaint is dismissed, or the action is discontinued, or abates in consequence of the plaintiff's death, the time intervening between the commencement and termination of the action is not a part of the time limited for the commencement of an action by the defend- ant to recover for the cause of action set up as a counter-claim in his answer, or to interpose the same defense in another action brought by the same plaintiff or a person deriving title from or under him. See Code of Civil Pro., § 412. To determine whether a counter-claim is barred by the statute of limitations or not, a computation must be made of the period intervening between, the time when the defend- ant's right to relief by action or otherwise accrued, and the time when the claim to that relief is actually interposed by the defendant in the particular action. See Code of Civil Procedure, § 415 ; Yol. 1, 1 18. If the period so computed exceeds the time limited for the commencement of an action upon a demand of the nature of the proposed counter-claim, then the statute is a bar to the counter-claim. Pleading a counter-claim. A counter-claim must be pleaded in order to authorize the introduction of any evidence showing a cause of action in favor of the defendant against the plaintiff. It should be set up at the joining of issue, but may be interposed by way of amended answer upon any adjourned day in the same manner as any other de- fense. See Code of Civil Pro., § 2944 ; Vol. I, 27. Unless the complaint was verified and served with the summons, the pleading may be oral. If the complaint was verified, the answer must be in writing and verified also. It need not be in any particular form, but it must be so expressed as to enable a person of common understanding to know what was intended. Code of Civil Pro., § 2940. If the counter- claim is founded upon an account or an instrument for the payment of money only, it will be sufficient for the defendant to deliver the instru- ment or a copy of the account to the justice, and to state that there is due him, from the plaintiff upon the account or instrument, a specified 98 778 DEFENSES. Counter-claim. — Form of judgment. sura wliicli he claims to recover or to set off. Code of Civil Pro., § 2941. In pleading a counter-claim, the defendant should state the facts constituting his cause of action against the plaintiff in the same manner that he would if setting them up in a complaint in an action against the plaintiff. There is no statutory rule requiring a defendant to demand any particular judgment in his answer, except when plead- ing orally a counter-claim founded upon an account, or an instrument for the payment of money only. In courts of record, a defendant who deems himself entitled to an affirmative judgment against the plaintiff by reason of a counter-claim interposed by him must demand the judg- ment in his answer. Code of Civil Pro., § 509. But this pro- vision of the statute has not been applied to justices' courts. The statute directs what judgment shall be entered when the counter-claim has been established on the trial. In proving the counter-claim, the burden is on the defendant to establish a cause of action against the plaintiff. The facts constituting this cause of action should be proved by the same evidence that would be requisite were the defendant suing on the demand as plaintiff in an action. Form of jadgmeiit in case of counter-claim. When a counter- claim is established which equals the plaintiff's demand, the judgment must be in favor of the defendant. "When it is less than the plaintiff's demand, the plaintiff must have judgment for the residue only. "Where it exceeds the plaintiff's demand the defendant must have judg- ment for the excess, or so much thereof as is due from the plaintiff, unless it is more than the sum of $200. If it is more than $200, or if no part of it is due from the plaintiff, the justice must, at the election of the defendant, either set off so much of the counter-claim as is suffi- cient to satisfy the plaintiff's demand, and render judgment for the de- fendant for his costs, or render a judgment of discontinuance with costs. Vol. I, 29. If upon the trial of the action the sum total of the accounts of both parties proved to the satisfaction of the justice exceeds $400, judgment of discontinuance must be rendered against the plaintiff with costs. Id. See Laws of 1881, chap. 438, § 4 ; Vol. I, 181. Eifect of a failure to interpose a counter-claim. There are cases in which a defendant must interpose a counter-claim in his favor or be forever thereafter precluded from maintaining an action to recover the whole or any part of his demand. The statute clearly and explicitly states when a claim will be barred by a failure to interpose it as a counter-claim, and when it will not, and a repetition of its provisions in this place is unnecessary. See Vol. I, 28, 29. DEFENSES. 779 Statute of limitations. — General principles. § 18. Statute of limitations. General principles. That every man ought to pay his just debts is an acknowledged maxim ; and that every honest man will do so as fast as he is able is equally well settled. And when a debtor is not able to pay his debts within a reasonable time, the law makes it the duty of the creditor to secure such evidence of his demand as will enable him to establish it at any time when it becomes necessary to do so. It is the policy of the law to discourage litigations, and it forbids the bringing of several actions for the same cause of action, as has been already seen. Ante, 735. So, too, it requires a creditor to bring his action within a reasonable and prescribed period, or to take the risk of losing his demand. There is nothing unreasonable or unjust in this rule, since the creditor can either collect his debt or take proper evidence of its existence, while, on the other hand, a permission to litigate claims of long standing would always open the door for frauds and perjuries. The claim may be well or ill founded, but in either case the rule of law must be uni- form, for it is better that stale demands should be barred, than to per- mit their enforcement in all cases indiscriminately. A demand may be very old and be very just, but if such demands can be enforced, then every demand, however stale, must be enforced, which would per- mit the very evils which the lajv attempts to prevent. If a debt has been paid and a receipt taken, it is liable to be lost or mislaid ; and after preserving it for a reasonable time the law steps in and declares its absence a matter of no moment, since the debt is presumed to be paid. As to these general principles, see Clementson v. Williams, 8 Cranch, 72 ; Hellings v. Shaw, 1 Taunt. 608 ; A' Court v. Cross, 3 Bing. 329 ; Evans' Pothier, 404 ; Kames' Prin. Eq. 182. What actions are barred. The law limiting the time for the bring- ing of actions relates both to real and personal property. And so, too, it extends to every kind or form of action, whether arising upon con- tract or for a tort. The time allowed to a plaintiff within which he may bring his action varies according to the subject-matter of the liti- gation, and the necessities of the case, or the convenience of the public interests. The statute does not apply merely to actions as that word is techni- cally understood. The word " action," when used in the statute, is to be construed, when it is necessary to do so, as including a special pro- ceeding, or any proceeding therein or in an action. Code of Civil Pro., § 414, subd. 4; Yol. I, 118. Nor is the application of the statute limited to causes of action set forth by a plaintiff in his com- 780 DEFENSES. Statute of limitations. — Wliat aotiona are barred. plaint, but extends equally to a cause of action set up by answer as a counter-claim. Code of Civil Pro., § 397 ; omte., Yol. I, p. 114. Where the payee of a note assigns it, and an action is brought thereon by the assignee, he may raise the objection that a set-ofE which existed against the payee of the note, and which is interposed as a defense to the action on the note, is barred by the statute of limitations. Thomp- (on V. SicMes, 46 Barb. 49. The right which the payee of the note lias to interpose the statute of limitations as a defense passes as an in- cident of the note on its transfer, and the holder as assignee may set it up in the same manner that the payee might have done had he sued on the note. lb. The statute which prescribes the terms of limitation for each kind of action have been given at length in the first volume of this work. See Vol. I, p. 110. The statutes there given constitute the only rules of limitation applicable to a civil action or special proceeding, except as specified in section 414 of the Code of Civil Procedure. Id. 188. The first and most important exception to the general apphcation of the statute is " where a different limitation is specially prescribed by law, or a shorter limitation is prescribed by the written contract of the par- ties." It is well settled that the parties to a contract may provide for a shorter limitation to actions than tliat fixed by the general law. Such an agreement is not expressly or impliedly prohibited by the general statute of limitations, and is consistent with the policy upon which statutes of limitations are founded. Wilkinson v. First Nat. Fire Ins. Co., 72 ]Sr. Y. 499. Such contracts are frequently incorporated into contracts of insurance. There are a number of cases in which a rule of limitation is specially prescribed by statute different from that pre- scribed by the general statute. Among these are actions against sher- iffs and constables brought by a claimant of property seized under re- plevin process to recover the damages sustained by the claimant by reason of the taking or detention of the chattel, or its delivery by the ofiicer to the plaintiff in the action of replevin. See Code of Civil Pro., § 1710 ; Yol. I, p. 23, note. Actions to recover an animal seized under the provisions of the Code of Civil Procedure relating to strays, or to recover damages for the seizure, or for any act subsequent thereto, are among the excepted class. See Code of Civil Pi-o. , § 3107 ; Yol. I, p. 74. So are actions to recover a penalty under the statute relating to hawkers and peddlers. See 1 K. S. 577, § 11. The Bankrupt Act also limited the time within which an action could be commenced by an assignee in bankruptcy against any person claiming an adverse interest in the property assigned. Other DEFENSES. 781 Statute of limitations. — Computation of time. examples could be given of cases in which the period of limitation has been specially prescribed by law, but the most careful classification that could be made would in all probability be incomplete, and of doubt- ful value. The limitations prescribed by the Code erf Civil Procedure given in the first volume of this work apply alike to actions brought in the name of the people of the State,- or for their benefit, and to actions by private persons. Code of Civil Pro., § 389. But no statute of limitations en- acted by any State can in any way affect or limit the right of the United States to maintain an action as a party plaintiff in the courts of that State. Oibson v. Ghoteau, 13 Wall. 92. Computation of time. One of the first principles relating to the statute of limitations is, that the creditor shall have the full time allowed by law for the collection of his demand ; and, therefore, he is entitled to the full term allowed from the time when his cause of action is perfect, so that he could maintain an action upon it. And for this reason the statute never begins to run against a demand until a perfect right of action exists in favor of the plaintiff, upon which he is author- ized to commence and maintain an action. The statute provides that " the periods of limitation prescribed by this chapter, except as other- wise specially prescribed therein, must be computed from the time of the accruing of the right to relief by action, special proceeding, defense or otherwise, as the ease requires, to the time when the claim to that relief is actually interposed by the party as a plaintiff or a defendant, in the particular action or special proceeding. " Code of Civil Pro., §415. See Patterson v. Patterson, 59 K Y. 574, 5Y8 ; S. C, 17 Am. Eep. 384. If money is to be paid at a future specified period, or upon the hap- pening of a certain event, or the performance of a particular condition, it is entirely clear that the statute does not begin to run until the speci- fied period has elapsed, the certain event has occurred, or the particular condition has been performed, because until that time the cause of action is not perfect. Quackenhush v. Ehle, 5 Barb. 469 ; Patterson V. Patterson, 13 Johns. 379 ; Helps v. Wmteriottom, 2 Barn. & Ad. 431 ; Wells v. Norton, 4 Bing. 40 ; Dresser v. Dresser, 35 Barb. 573. But where a son renders services for his father under an agreement that he shall be paid therefor by a provision in thelatter's will, and the father subsequently gives notice that he rescinds the agree- ment and refuses to allow further services to be rendered thereunder, the rigl^t of action for damages for a breach of the agreement accrues immediately upon its rescission and the statute of limitations com- 782 DEFENSES. Statute of limitations. — Computation of -time. niences to run from tbat time. Bonesteel v. Yam, Etten, 20 Hun, 468. Whenever an executory contract is repudiated the right of action is immediate. lb.; Lee v. Decker, 6 Abb. (IST. S.) 392, 394 ; Dillon v. Anderson, 43 N. Y. 231; Howard v. Daly, 61 id. 362. And when the right of action exists the statute commences to run unless tliere is some feature in the case bringing it within some statutory exception. As a general rule where a right exists, but a demand is necessary to enable a person to maintain an action, the time within which the action must be commenced must be computed froni the time when the right to make the demand is complete. Code of Civil Pro., § 41 ; Yol. I, p. 117. To this rule there are two statutory exceptions. Where the right grows out of the receipt or detention of money or property by an agent, trustee or attorney, or other person acting in a fiduciary capacity, the time must be computed from the time when the person having the right to make the demand has actual knowledge of the facts upon which that right depends. lb. Where there was a deposit of money not to be repaid at a fixed time, but only upon a special demand, or a delivery of personal property not to be returned specifically or in kind, at a fixed time or upon a fixed contingency, the time must be computed from the demand. lb. Thus, a bank is not liable to depositors except after demand of pay- ment, and, therefore, as the money is not to be repaid at a fixed time, the statute of limitations does not begin to run against it until a de- ]nand is made. Hov^ell v. Adams, 68 N. Y. 314. Money kept by a husband at his wife's request is a deposit and not a loan, and therefore the statute of limitations will not run against the wife until after a de- mand. Boughton v. Flint, 74 IST. Y. 476 ; S. C, 5 Abb. N. C. 215. And where money is deposited with any individual not a banker, trus- tee or agent, upon an agreement that he shall pay interest thereon, and that the same shall not be withdrawn except by drafts payable thirty days after sight, the statute of limitations will not run against the debt \intil drafts drawn against the person, in pursuance of the agree- ment, have been presented and dishonored. Sullivan v. Fosdiok, 10 Hun, 173. The lapse of six years is not a bar to an action for a deposit. The statute begins to rnn only from the time payment is refused. Thomson -v. Bank of British North America, 82 K Y. 1. When the drawer of a check has no funds at the time in the hands of the drawer, the check is due immediately without presentment and demand DEFENSES. 783 Statute of limitations. — Computation of time. and the statute of limitations begins to run from its date. Brush v. Barrett, 82 N. Y. 400. Where a person after coming of age ratifies a contract made during infancy, the statute begins to run from the ratification. Halsey v. lieid, 4 Hun, Y77. It i3 sometimes important to determine whether the day on which the cause of action accrued is to be included or to be excluded from the computation of time. And in relation to bills and notes, the rule is well settled in this State, that the first day or the day on which the cause of action accrues is to be excluded. When a note became due on the 4:th day of October, 1852, it was held that an action commenced on the 5th day of October, 1858, was in time, and that the statute of limitations did not constitute any bar to the action. McOraw v. Walker, 2 Hilt. 404. In another case a note was dated on the 14th day of February, 1839, but no time of payment was specified. An action was commenced on the note on the 14th day of February, 1845, which was held to be in time, upon the principle that such a note was pay- able immediately, and that the day of the date was to be excluded from the computation of time. Cornell v. Moulton, 3 Denio, 12. And see Yol. I, 793. There can be no question that the preponderance of American authority is in favor of this rule. Bemis v. Leonard, 118 Mass. 502 ; S. C, 19 Am. Eep. 470 ; Blackman v. Wearing, 43 Conn. 56 ; S. C, 21 Am. Eep. 634 ; 7 Act. and Def. 231. Thus, a debt was due October 6, 1862 ; suit was brought October 6, 1868, and it was held that the action was not barred by the statute. Menges v. Frich, 73 Penn. St. 137; S. C, 13 Am. Eep. 731. So, where a statute pro- vided that every action on a judgment shall be brought within ten years next after the judgment was entered, and not afterward, and judgment was entered March 15, 1859, and an action was commenced on it March 15, 1869, it was held to have been commenced in time. Wam'en V. Slade, 23 Mich. 1 ; S. C, 9 Am. Eep. 70. In cases other than those upon bills and notes, the decisions are contradictory upon the question whether the day upon which the cause of action arose is to be excluded or included in the computation. But, in this State, when the period allowed for the doing of an act is to be reckoned from the making of a contract, or the happening of any other event, the day on which the event happened may be regarded as an entirety or a point of time, and so be excluded from the computation. Beonson, Ch. J. • Cornell v. Moulton, 3 Denio, 16. And see Snyder v. Warren, 2 Cow. 518 ; Jloman v. Liswell, 6 id. 659 ; Wilcox v. Wood, 9 Wend. 346 ; Fairbanks v. Wood, 17 id, 329. And see, also, Pearpoint v. Graham, 784 DEFENSES. Statute of limitations. — Computation of time. 4 Wash. C. 0. 232 ; Bellasis v. Hester, 1 Ld. Eaym. 280 ; Castle V. Burditt, 3 Term E. 623. The months of hmitation are, by the common law, to be taken as l/unar and not as calendar months. Parsons v. Ohamierlam, i Wend. 512 ; JSives v. Guthrie, 1 Jones (N. C.) L. 84. And where the plaint- iff made a contract with the defendant to do certain work which was " to be measured, estimated, and paid for, monthly, " it was held that the statute began to run at the end of each month, Robertson v. Bickrell, 77 N. C. 303. A promissory note, payable on demand, whether with or without interest, is due forthwith, so that the statute commences running from the date of the note. "Wheeler v. Warner, 47 ]Sr. Y. .519 ; S. C, 7 Am. Eep. 478 ; or from its delivery if without date. Palmer v. Palmer, 36 Mich. 487 ; S. C, 24 Am. Eep. 605 ; even where the contract indicates that immediate payment was not ex- pected. Id. And no special demand is necessary. Norton v. Ellam, 2 Mees. & Wels. 461 ; Savings Institution v. Weedon, 18 Md. 320 ; Larason v. Lamhert, 12 N. J. L. 247. A non-negotiable note, payable " thirty days after demand, " was held to be within the same principle. Palmer v. Palmer, 36 Mich. 487 ; S. C, 24 Am. Eep. 605. But see 7 Act. and Def . 246. The statute of limitations begins to run, as against the maker or against one who has indorsed his name on the back of a non-negotiable promissory note payable on demand, with interest from the time the note was made and delivered. McMullen v. Rafferty, 24 Him, 363. When the pledgee remains in possession of the pledge, the statute will not begin to run against the pledgor, until tender of the debt for which the pledge was given, and a refusal by the pledgee to restore the pledge upon demand by the pledgor. Roberts v. Berdell, 61 Barb. 37 ; S. C. affirmed, 52 N. Y. 644 ; 15 Abb. (N. S.) 177 ; Whelan v. Kinsley, 26 Ohio St. 131. On a promise, by one person, to indemnify another, the statute com- mences running from the time the damage is sustained, and not from the time when the promise was made. Hale v. Andrus, 6 Cow. 225. And see Yol. I, 251. Where a bond is conditioned that the sum secured is to remain in the hands of the obligor, without interest, until such time as the obli- gee shall demand payment, and then, if not paid, it is to be in full force and virtue, a demand of payment is necessary before the statute will commence running. Sweet v. Irish, 36 Barb. 467. Where goods are sold, and the vendor turns out the note of a third person in payment, Tinder his guaranty of its payment, the demand does not become due DEFENSES. 785 Statute of limitationa. — Computation of time. until tlie maturity of such note, and, therefore, the statute of Hmita- tions does not commence running until that time. Fowler v. Clear- water, 35 Barb. 143. Where a note is payable on demand, the statute begins to run from its date ; but where it is payable at a specified time after demand, it is not due until such demand, and the expiration of the time specified thereafter, and therefore the statute does not begin to run until that time. Wenmom v. Mohawk Ins. Co., 13 Wend. 267 ; De Lavallette v. Wendt, T5 E". Y. 579 ; Rerrick v. Wolverton, 41 id. 581 ; S. C, 1 Am. Rep. 461. Generally, the statute commences to run against an action upon a subscription to stock of a corporation, as to each installment called in, from the time when the directors make the call. Western B. B. Co. v. Avery, 64 N. C. 491. In a suit to recover back money paid upon a voidable contract, the statute begins to run from the time the contract is terminated by one party or the other, and not before. Collins v. Thayer, 74 111. 138. If the law makes it the duty of a public officer to pay over funds in his custody at stated times, no demand is necessary ; and the statute commences to run in his favor from the set time of payment irrespective of whether a demand was made or not. Moore v. State, 55 lud. 360. A note given to a mutual insurance company, organized under the general law, as one of the notes required to make up its capital, by which the maker promises to pay the specified sum to the company ''in such portions and at such time or times as the directors may re- quire," is in legal effect payable immediately, for the statute contem- plates an absolute liability. ISTo demand is necessary for the purpose of bringing an action upon it ; and the statute begins to run against it at the time it is given, and it is a good defense at the expiration of six years from that time. It does not make any difference in this respect, that the statute requires such notes to be payable " at the end of, or within twelve months from date." Rowland v. Edmonds, 24 N. T. 307; S. C, 23 How. 152. The note sued on in the case just cited was a capital-stock note, which differs materially from a premium note. Ante, 207. When a premium note is payable in " such portions and at such time or times as the directors may, agreeably to their charter and by-laws, require," the liability of the maker is not absolute, but conditional, de- pending upon the necessities of the company, and a demand by its officers. Rowland v. Cuykendall, 40 Barb. 320. The cause of action is not perfect until an assessment has been made upon such a note, and notice thereof given to the maker, and therefore tlie statute does not 99 786 DEFENSES. Statute of limitations. — Computatiou of time. begin to run until that time. lb. And see Savage v. Medbury, 19 IS". y. 32. Where a contract is made in contemplation of marriage, and in con- sideration thereof, the contract does not take effect until the marriage is consummated, and the statute does not begin to run upon such a contract until that time. De Pierres v. Thm'n, i Bosw. 266, 288. When work is done, or services rendered, without any agreement as to the time of payment, the cause of action arises as soon as the work or service is complete, and the statute begins to run from that time, and not from the time of rendering a bill or account of services. Peck V. iV. Y. c& 'Liverpool Steamship Co., 5 Bosw. 226, 234. And see Battley v. Faulkner, 3 Barn. & Aid. 288. Where a claim is made for services rendered during a long period of time, as for twenty-five years, it will all be barred by the statute except the items accruing within the last six years before the commencement of the action, unless it is shown that the demand was to be paid in some particular manner, as by a devise of land, or at some particular future time, as that of the death of the debtor. Raynor v. Robinson, 36 Barb. 128. So, where services are rendered in the management of a farm, and in the discharge of household duties under a general employment, with- out any express agreement as to the terms or the measure of compen- sation, or the term of employment, and such services continue for a series of years, without any payments being made, the law, for the purpose of determining when the statute begins to run, will not imply an agreement that the payment of the compensation shall be postponed nntil the completion of the service, or the termination of the employ- ment, but will regard the hiring as one from year to year, and the wao-es payable at the end of each year. Davis v. Gorton, 16 IST. Y. 255. The statute does not run against an attorney's claim for services rendered until the services contracted for have been performed by the termination of the action, or the contract of retainer has in some other way been determined. Walker v. Goodrich, 16 111. 341 ; Bathgate^. Easldn, 59 IST. Y. 533 ; Mygatt v. Wilcox, 45 id. 306 ; S. C, 6 Am. Eep. 90 ; Bavis v. Smith, 48 Vt. 52 ; Lichty v. Hugus, 55 Penn. St. 434. In other words, the statute commences to run whenever the attorney's services are so brought to an end that he could maintain an action founded upon them. Adams v. Fort Plain Bank, 36 N. Y. 255. In actions for torts the statute begins to run from the time when the wrongful act was done. See Northrup v. Hill, 57 1!*]^. Y. 351 ; S. C, 15 Am. Rep. 501. When an injury, however slight, is complete DEFENSES. 787 Statute of limitations — Computation of time. as a legal injury at the time of the act, the period of limitation at once commences. lb. But when the act is not legally injurious until cer- tain consequences occur, in other words, if tbe cause of action is not the doing of the thing, but the resulting of damage only, the period of limitation is to be coaiputed from the time when the party sus- tained the injury. Whitehouse v. Fellowes, 10 0. E. (N. S.) 765 ; BanTc of Hartford Co. v. Waterman, 26 Conn. 324. In an action of trover for the conversion of goods the statute com- mences running from the time of the conversion, and not from the time when the plaintiff learned of such conversion. Granger v. George, 5 Barn. & Ores. 149 ; Denys v. ShucJcburgh, 4 You. & 0. 42; Kel- sey V. Griswold, 6 Barb. 436. A demand and refusal is evidence of a conversion at the time of the refusal, and this statute begins to run against an action therefor at that time. Roberts v. Berddl, 52 N. Y. 644 ; S. C, 15 Abb. (N. S.) 177. When goods are taken under an execution which is set aside because it is a nullity, the cause of action accrues at the time of the first taking, and not from the time when the execution is set aside. Read v. MarMe, 3 Johns. 523. And see Par- sons V. Lloyd, 3 Wils. 345. Under the New York statute a cause of action accrues against a sheriff for not returning an execution in his hands the moment the time for re- turning it expires, and no attachment or notice to the sheriff to return the execution is necessary. Peck v. Murlburt, 46 Barb. 559. The seizure by a sheriff of property which he supposes to be that of a debtor against whom he has a lawful process is an act done in his official capacity, within the meaning of a statute limiting the time for commencing suit for such acts, notwithstanding that the property in fact belonged to another person. Gumming v. Brown, 43 N.Y. 514. The statute begins to run against a cause of action for false im- prisonment as soon as the imprisonment ceases. Dusenbury v. Keiley, 8 Daly, 537; Vanlngen v. Snyder, 24 Hun, 81. In actions for negligence, where the complaint alleges a breach of duty by the defendant, and a special consequential damage, tlie cause of action arises from the breach of duty, and not the consequen- tial damage, and, therefore, the statute begins to run from the time when the breach of duty was committed, and not from the time when the consequential damage accrued. Howell v. Young, 5 Barn. & Ores. 259 ; Morgan v. Plumb, 9 Wend. 287 ; Argall v. Bryant, 1 Sandf. 98. Thus, in an action against an agent for negligence or unskillfulness, the statute begins to run from the time the negligence or unskillful 788 DEFENSES. Statute of limitations — Absence from the State. act was committed, and it is held tliat the plaintiffs ignorance thereof cannot afiect the bar of the statute. Sinclair v. Bamh, 2 Strobh. (S. 0.) 344 ; Grcmford v. Goulden, 33 Ga. 173. A cause of action against an attorney for negligence or want of skill in the performance of his professional duties arises immediately, and the statute commences to run from the negligent act. White v. Reagan, 32 Ark. 281. In In- diana, an action for negligence in setting a broken arm is held to be an action arising ex contractu and not ex delicto, and is only barred by the statute limiting actions on contracts. Staley v. Jameson, 46 Ind. 159 ; 15 Am. Kep. 285. In this State the period of limitation would be the same, in either form of action, and the distinction is not important in this connection. But a cause of action against assessors for illegally assessing a tax upon the plaintiff accrues when the plaintiffs property is taken by the assessors for sale to satisfy the tax, and the statute begins to run from that time, and not from the time of making the assessment. Mygatt V. Washburn, 15 N". Y. 316. And see Roberts v. Read, 16 East, 215. And where A. is the owner of a house, and B. is the owner of a mine under it, and B., in working the mine, leaves an insuiBcient support to the house, which is not injured until some time after the workings have ceased, A. may bring an action at any time within six years after the injury is done to the house, and is not bound to bring it within six years after the work was done which led to the injury. Backhouse v. Bonomi, El. Bl. & El. 622 ; S. C. affirmed, 1 Best & S. 970. The statute provides a rule for the computation of time within which an action must be commenced in a court of this State by an executor or administrator to recover personal property taken after the death of the testator or intestate and before letters issued, or to recover damages for taking, detaining or injuring personal property within the same period. See Code of Civil Pro., § 392; Yol. 1, 113. Absence from the State. The provisions of the statute relating to absence from the State has been elsewhere given in full. Vol. 1, 116. If a non-resident, during ten hours of every business day, openly transacts business in this State for a period of seven years and five months after a cause of action on a draft has accrued against him, the statute of limitations will f ui-nish no defense to an action on the draft. If the statute runs at all during the presence of a non-resident within the State, such presence must in the aggregate amount to six years to render the defense available. Bennett v. Cooh, 43 JST. T. 537 ; S. C, 3 Am. Rep. 727. If the contract upon which the cause of action arises was made without the State, the defendant must show, in order to DEFENSES. 789 Statute of limitations — Absence from the State. avail himself of the statute, that he has resided in this State for six years before the commencement of the action. Mayer v. Friedman, 7 Hun, 218 ; S. C. affirmed, 69 N. Y. 608 ; Power v. Hathaway, 43 Barb. 214. Under the old Code of Procedure, before the amendment of 1867, both departure from and absence out of the State were necessary to suspend the running of the statute of limitations. But by the amend- ment referred to, an additional exception was created where the party ramains continuously absent from the State for one year or more. The Cade of Civil Procedure has enacted the statute as amended, and many cases giving construction to the former statute, before the amend- ment, have become obsolete and misleading. See Vol. I, 116, § 401. It has been held that a plea of the statute of limitations of the State or country where the contract is made is no bar to a suit brought in a foreign tribunal, and that the lex fori governs all questions arising under that statute ; Miller v. Branham, 68 N. Y. 83 ; and that the statute of limitations of another State or country is no bar to an action in the courts of this State, although each of the parties may have been a resident of that State or country until the statute had run, and the cause of action may have accrued therein. See Ruggles v. Keeler, 3 Johns. 263 ; Olcott v. Tioga E.E. Co., 20 N. Y. 224; Gans V. Frank, 36 Barb. 320 ; Power v. Hathaway, 43 id. 214 ; Tou- landon v. Lachenmeyer, 6 Abb. (N. S.) 215. But the Code of Civil Procedure has modified this rule to some extent in cases where the plaintiff is a non-resident, and the title to real property, or the pos- session thereof, is not involved in the action. It is now provided by that act, that, " where a cause of action, which does not involve the title to or possession of real property within the State, accrues against a person who is not then a resident of the State, an action can- not be brought thereon in a court of the State, against him or his personal representatives, after the expiration of the time limited by the laws of his residence for bringing a like action, except by a resi- dent of the State, and in one of the following cases : 1. "Where the cause of action originally accrued in favor of a resi- dent of the State. 2. Where, before the expiration of the time so limited, the person in whose favor it originally accrued was or became a resident of the State ; or the cause of action was assigned to, and thereafter continuously owned by, a resident of the State," Code of Civil Procedure, § 390 ; Vol. I, 113. A resident creditor may still pursue a non-resident debtor until 790 DEFENSES. Statute of limitations — Absence from the State. the demand is barred by the statutes of this State ; and as to him the rule of limitation is not changed. And therefore now, as before this statute, a note which is made in Massachusetts, by citizens of that. State, and payable to residents of this State, may be sued whenever the makers come into this State ; and the statute of limitations of Massachusetts will not be available to the defendants in an action here upon such demand. Carpenter v. Wdls^ 21 Barb. 593. It was held in an action on a note made in Pennsylvania, where the maker and payee resided at the time of its execution and delivery, that though the parties came to this State to reside, and the maker after a residence of three years returned to Pennsylvania, but frequently came back and was openly in the State to the knowledge of the payee, the statute ceased to run with the maker's return to his native State. Mtorray v. Fisher, 5 Lans. 98. In speaking of the statute of limitations as a bar to an action in case of absence from or residence out of this State, the statute of this State is referred to unless the contrary is expressed. If a debtor personally dwells out of the State the fact that his wife and family remain in it does not affect the question of his absence. Seymour v. Street, 5 Neb. 85. The statute docs not run in favor of one maker of a joint and several contract for the payment of money, during the time he may have been a resident out of the State, nor is the statute a bar as to him, although the statute may run and be a bar as to the other contractor, who is and has been a resident of the State. Bogert v. Vermilya, ION. Y. 4i7. And when the defendants are joint debtors, the absence of one of the joint debtors from this State will suspend the nmning of the statute as to him, notwithstanding his co-debtor has remained within the State. Denny v. Smith, 18 N. Y. 567 ; Fannin v. Anderson, 7 Q. B. 811. Where a debtor was a non-resident, and not within the State when the cause of action accrued, the statute does not begin to mn until he comes into the State ; and it is not a bar to the action until the debtor has been in the State for six years, after deducting all the time of residing abroad. Whether the absence is continuous, or made up of several distinct times of absence, is not material, for six full years must be spent in the State to create a bar. Gans v. Frank, 36 Barb. 320 ; Berrien v. Wright, 26 id. 208; Power v. Hathaway, 4:Z id. 214; Bell V. Zamphrey, 57 N. H. 168. And see Bennett v. Cook, 43 N. Y. 537 ; S. C, 3 Am. Eep. 727. Where a cause of action accrues against a resident of this State who subsequently removes to a foreign State, the statute of limitations does DEFENSES. 791 Statute of limitations. — Disabilities. not apply to any portion of the time he resides out of the State, not- withstanding he may frequently return to the State upon business. Burroughs v. Bloomer, 5 Denio, 532. The time spent in this State upon business while residing abroad is not to be taken into account, as was held where the debtor removed from Brooklyn, N. T., to Newark, N. J., where he resided for eight years, though having a place of business in the city of New York, which he visited frequently. lb. This case is approved in Cole v. Jessup, 10 N. Y. 96, 106 ; S. C, 10 How. 515. And see Ford \. BabcoGh, 2 Sandf. 518, which cases must be considered as overruling Randall v. Wilkins, 4 Denio, 577. But it has been held that where a debt is contracted abroad by a person residing out of the State, and the debtor afterward comes into the State publicly, in such a manner that the creditor, with ordinary diligence and due means, might have commenced an action against such debtor, it is a return into this State within the meaning of the statute, and that the statute begins to run from the time of such return. Fowler y. Hunt, 10 Johns. 464 ; Dldier v. Davidson, 2 Barb. Ch. 4T7, 486. These cases, however, must be controlled by the cases already cited, which hold that the statute is not a bar until it appears that the debtor has been in the State for full six years after deducting all absences. Ante, 790. The statute does not apply where a designation of a person upon whom a summons may be served has been made, as prescribed by the Code of Civil Procedure, and remains in force. See vol. 1, 116, § 401. Provision is also made for tlie case of a person dying without the State. Id., 113, § 391. Disabilities. In case a person entitled to maintain an action, other than for a penalty, forfeiture or escape, is at tlie time the action accrues either an infant, insane, imprisoned on a criminal charge or in execu- tion upon conviction of a criminal offense for a term less than for life, the period of disability is to be excluded from the computation of the time limited for commencing the action, except that the time limited cannot be extended more than five years by any such disability except infancy, or in any case more than one year after the disability ceases. See vol. 1, 114, § 396. For example, if a right of action upon a prom- issory note accrues while the holder is insane, the statute will not com- mence to run until five years have elapsed since the cause of action accrued, and the six years' period will be computed from the expiration of the preceding five. The lunatic will, therefore, have eleven years in which to commence his action on the note from the time the right accrued. If he becomes sane at any time after a year has expired 792 DEFENSES. statute of limitations. — Death of party. since the right of action accrued and less than five years from that time, then the six years ' period of limitation will commence to run at the ex- piration of one year from the time the disabihty ceased. If he becomes sane on the day after the right of action accrues, the action must be brought within six years from the day on which reason is restored. If after six years of insanity has expired, he should become sane on any day in the next four years, he would have but one year from that day in which to bring his action. See Acker v. Acker, 81 IST. Y. 143 ; Dunham v. Sage, 52 id. 229 ; Fletcher v. Updike, 67 Barb. 364 ; S. C, 5 Sup. Ct. ( T. & C.) 513 ; 3 Hun, 350. Formerly, coverture was a disability, having the same effect on the statute of limitations as in- sanity. But since the act of 1870, a married woman has no more time in which to enforce a right of action than a married man. The idiocy of a debtor does not operate as a disability. Sanford v. Sanford, 62 K T. 553. A person cannot avail himself of a disability, unless it existed when his right of action or of entry accrued. And where two or more dis- abilities co-exist when that right accrues, the limitation does not attach until all are removed. Vol. 1, 117, §§ 408, 409. For the effect of a disability created by war see vol. 1, 116, § 404. Death of party. The ordinary period for the commencement of an action has been enlarged by the Code of Civil Procedure, in cases where the person against whom a cause of action exists has died with- out the State, by excluding from the time limited for the commence- ment of an action against his executor or his administrator, the time which elapses between the death of such person and the expiration of eighteen months after the issuing of letters testamentary or of adminis- tration within the State. Yol. 1, 1 13, § 391. If a person against whom a cause of action exists has died within the State, the term of eighteen months after the death is not a part of the time limited for the commencement of an action against his execu- tor or administrator. And if letters testamentary or of administration upon his estate are not issued within the State at least six months be- fore the expiration of the time to bring the action, as extended by the addition of eighteen months to the ordinary time, then the action may be commenced within one year from the time such letters are issued. See Code of Civil Pro., § 403, vol. 1, 116. If a person entitled to maintain an action dies before the expiration of the time limited for its commencement, and the cause of action sur- vives, his representative may commence an action after that time and DEFENSES. 793 statute of limitations. — Commencement of prior action, etc. ■within one year after his death. Vol. 1, 116, § 402. See Scovil v. Sco- vU, 45 Barb. 517 ; S. C, 30 How. 246. Commencement of prior action, etc. The Code of Civil Procedure protects the rights of a party who has duly commenced an action and recovered a judgment therein which has been reversed on appeal with- out awarding a new trial, or whose action has been terminated in any other manner than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute, or a final judgment on the merits; or who has been restrained from commencing the action by injunction or statutory prohibition ; or who has entered into a written agreement to submit to arbitration, or to refer the cause of action, and the pro- ceeding has been rendered ineffectual by reason of certain specified acts; or who has set up a cause of action in an answer by way of counter-claim, and the action has been terminated without opportunity on his part to obtain the relief to which he was entitled. See vol. 1, 116, §§ 405, 406. Exceptions. The statute of limitations does not affect an action to enforce the payment of a bill, note, or otlier evidence of debt, issued by a moneyed corporation, or issued or put in circulation as money. Nor does it affect an action against a director or stockholder of a moneyed corporation, or banking association, to recover a penalty or forfeiture imposed, or to enforce a liability created by law ; but such an action must be brought within three years after the cause of action has accrued. Vol. 1. Mutual accounts. The Code of Civil Procedure provides that in an action brought to recover a balance upon a mutual, open, and current account, when there have been reciprocal demands between the parties, the cause of action is deemed to have accrued from the time of the last, item proved in the account on either side. Code, § 386, vol. 1, 112. To come within this provision of the Code the action need not be in form to recover a balance due upon an account, if such be its purpose and legal effect. Green, v. Disbrow, 79 N. Y. 1. The phrase " reciprocal demands " was not used in the statute of limitations before the Code, but was frequently used in decisions made prior to the Code to explain the meaning of the phrase " mutual accounts," and it means no more than was before meant by the latter phrase. It was introduced simply to settle definitely that there must be an account of mutual dealings, as distinguished from an account of items on one side only, or an account of items upon one side and upon the other mere pay- ments not made within six years. An account of items upon one side and payments merely upon the other is not a mutual account. The 100 794 DEFENSES. Statute of limitations. — Mutual accounts. payments in suah case do not enter into the account) but are at once applied and reduce it. But if goods are delivered by a debtor to his creditor, who has an account against him, it will not be presumed that they were delivered in payment, and to establish the fact of such de- livery, it must be shown that it was so intended, and that both parties so understood it. And where goods are delivered upon the one side, to offset or to be credited upon goods delivered upon the other side, the account being permitted to run for mutual convenience, and the balance to be paid by the party against whom on final adjustment it shall be found to exist, there is a mutual account of reciprocal demands between the parties, within the meaning of the statute. lb. Accounts are mutual where each party makes charges against the other. Hoss v. Hoss, 6 Hun, 80. If it be conceded that, to constitute a mutual account of reciprocal demands, a defendant when sued, must have an account against the plaintiff which he can interpose as a set-off to the extent thereof, still it is not essential that each party shall have an independent cause of action against the other. The cause of action upon such an account is really in law for the balance due, and that party only is debtor against whom the balance is found. If an action is brought to recover a balance due on a store account for goods sold and delivered, and it appears that the defendant has delivered to the plaintiff small quantities of butter and eggs at different times, to be credited upon the account, this will be an action " upon a mutual open and current ac- count where there have been reciprocal demands between the parties " within the meaning of the statute, and if the last item of the account was within six years the claim will not be barred. Qreen v. Dishrow, 19 N. Y. 1 ; S. C, 35 Am. Kep. 496. The simple presentation of an account containing credits will not have the effect of taking a ease out of the statute. CugJc v. QuaoJcenbush, 13 Hun, 107 ; Adams v. Carroll, 85 Penn. St. 209. And where the different claims of the parties are for independent matters, each resting upon its own merits, this does not constitute mutual open and current accounts, or " reciprocal demands " between the parties, within the ex- ception of the statute. Ashley v. James, 11 Mees. & Wels. 542; Huebner v. Roosevelt, 6 Daly, 337. Where one enters into the service of another, without an agreement, at the commencement of the service, as to the term of compensation, and such service continues many years, the master paying each year various sums of money and delivering goods, of which he keeps an account, the presumption is that the payments apply on the balance un- paid, and not upon the wages of any particular year ; and thus tlie DEFENSES. 795 statute of limitations. — Mutual accounts. entire balance is taken out of the opei'ation of the statute of limita- tions, and when the accounts have remained open and unliquidated, the employee is not limited to a recovery for six years' service. Smith V. Yelie, 60 N. Y. 106. So where a payment, larger than any one item thereof, is made upon a claim for professional services, with no directions for the special application thereof, and there are no circum- stances from which such direction can be inferred, such payment is effectual to avoid the operation of the statute of limitations, and an action may be maintained upon such claim at any time within six years of such payment. Bows v. Gano, 9 Hun, 6. Under the old statute it was held that one item of an account which was proved to exist within six years of the commencement of the action would not draw after it other items of more than six years' standing, so as to prevent the bar of the statute, unless there had been mutual aooounts and reciprocal demands between the parties. Kim- lall V. Brown, 7 Wend. 322 ; HallocTe v. Losee, 1 Sandf . 220. But it was held that where there were mutual accounts between the plaintiff and the defendant, an item of the account which accrued on either side within six years before the commencement of the action would draw after it all the items of the accounts on both sides, and prevent the attaching of the statute. Sickles v. Mather, 20 Wend. 72. So it was also held that where charges were made in the accounts as frequently, at the least, as once in six years, from the commencement to the termination of the accounts, and the last item was proved to be within six years previous to the commencement of the action, this was sufficient to save the entire account from the operation of the statute, although that was interposed as a defense. Chamherlin v. Ouyler, 9 Wend. 126. And where an action was brought against the defendant in the year 1829, on a demand which accrued in 1826, and the defend- ant proved an account against the plaintiff, by way of set-off, consisting of items which accrued in several different anterior years, some of them accruing in 1826, others in 1822, and still others in 1818, it was held that the items accruing in 1826 drew after them the previous charges and saved them from the operation of the statute. lb. It was also held that the fact that the transactions to which the charges related were of separate and distinct natures did not affect the question. lb. Under the former statute it was also held that the payment of a running account down to a particular period, and the taking of a receipt for such payment, was not such a transaction as amounted to mutual accounts, and therefore that an item of such account, although within six years of the commencement of the action, would not draw after it 796 DEFENSES. Statute of limitations. — Concealment of cause of action. items of more than six years' standing, and that such items would be barred. Edynond stone v. Thompson, 15 Wend. 554. Where it appeared that the parties had mutual accounts, and that the amount was adjusted on one side, accompanied by a written promise or note of the debtor to pay the amount after deducting offsets, and the opposite party also ga\^e a written stipulation that whenever it should be con- venient to make a final settlement the debtor might take up the note by giving a judgment, it was held that the statute was a bar to an action either upon the original indebtedness or upon the note, when the action was not commenced within six years of the adjustment. Rowes V. Woodruff, 21 Wend. 640. These cases, which were decided under the old statute, are still law, and in entire accordance with the provisions of the Code. Where a mutual, open and current account exists between parties, and one of them purchases from a third person and holds an open account against the other, without any notice to the latter or any recognition of its validity by him, it does not become a part of the mutual account between them, within the provisions of the statute relating to mutual accounts. Green v. Ames, 14 N. Y. 225. The demand so purchased and held becomes barred by the lapse of six years from the time it accrued to the assignor, notwithstanding it was assigned before the statute attached, and there existed then, and after- ward continued, a mutual account and reciprocal dealings between the assignee and the debtor, lb. The Code requires that there shall be "reciprocal demands" to con- stitute a mutual account. And where there is an account on one side upon which various payments have been made, such payments and the credits therefor do not constitute "reciprocal demands" within the meaning of the Code. Peck v. N. Y. da Liverpool U. 8. Mail Co., 5 Bosw. 226. And when a bill is presented within six years before the action is commenced, and the bill is paid with the exception of one item, which is promptly disputed, on the ground that no liability exists therefor, such payment will not prevent the statute from attaching and barring all right of action at the end of six years from the time when the alleged service was fully performed. lb. Payments made on an account, accompanied by a denial of any liability and a refusal to pay for particular items, do not prevent the statute from running as against such items, and barring them. lb. Concealment of cause of action. It is sometimes supposed that the fraud of the defendant may so operate as to extend the plaintiff's right DEFENSES. 797 Statute of limitations. — New promise. of action in those cases in which the defendant has fraudulently concealed the existence of a cause of action until after the statute would be a bar in ordinary cases. And there are some decisions which give countenance to such a view of the law. But, in this State, it has long been settled that fraud does not extend the right of action. And where an action was brought f or neghgence, want of skill, and fraud in the performance of work, to which the defendant interposed the statute of limitations as a defense, it was held that it was no answer to the bar created by the statute, to show that the defendant fraudulently concealed the badness of the work, so that the plaintiff did not discover the fraud until within six years before the commencement of the action. Troup v. Smith, 20 Johns. 33. So, in an action for fraudulent representations, made by a vendor in the sale of land, the action must be brought within six years after the representations were made ; and ignorance on the part of the vendee as to the defects in the title, and fraudulent concealments on the part of the vendor of Such defects until within six years before the com- mencement of the action, is no answer to the defense of the statute of limitations. Leonard v. Pitney, 5 Wend. 30. So, in an action of trover, it is no answer to the statute of limitations, to show that the cause of action was fraudulently concealed by the de- fendant until after the statute had attached, and that the action was brought within six years after the discovery of the right of action. Allen V. Mille, 17 "Wend. 202 ; Granger v. George, 5 Barn. & Ores. 149. So, in actions of trespass or trespass on the case for injuries to land, it will be no answer to the defense of the statute of limitations to show that the defendant had fraudulently concealed the cause of action from the plaintiff until within six years before the commencement of the action. Hunter v. Oibbons, 1 Hurlst. & Norm. 459 ; Imperial Gas Go. v. London Gas Go., 10 Exch. 39. These cases are sufficient to show that the plaintiff mtist bring his action within the time limited by law, and that a fraudulent concealment of the cause of action by the defendant will not be any answer to the defense of the statute of limitations, whatever the form or subject-mat- ter of the action may be, if the action is prosecuted in a court of law, which, of course, includes justices' courts. In courts of equity, a dif- ferent rule may prevail in some instances, but that subject is foreign to the object of this work. As to courts of equity, see the authorities re- ferred to in the last case cited ; and in the case of Troup v. Smith, 20 Johns. 33. New promise. Under the laws which existed in this State prior to the enactment of the Code, a debt barred by the statute of limitations 798 DEFENSES. Statute of limitations. — New promise. might have been revived by a mere oral promise or acknowledgment. But as the law now stands, such promise or acknowledgment must be in writing, and signed by the party to be charged thereby. Vol. 1, 114, § 395. The law as to reviving a debt by the payment of principal or interest remains unchanged. lb. Our statute is taken from the English statutes, and it is substantially like them, and, therefore, their decisions will be of service in gi'ving con- struction to our statute. It was not the intention of the legislature to change the law in relation to the nature and effect of a new promise or acknowledgment, but merely to prescribe a new rule of evidence in re- lation to the mode of proving the promise. In Haydon v. Williams, 7 Bing. 160, 167, Tindal, Oh. J., said: "That statute did not intend, as it appears to us, to make any alteration in the legal construction to be put upon acknowledgments or promises made by defendants, but merely to require a different mode of proof, substituting the certain evidence of a writing signed by the party chargeable, instead of the insecure and precarious testimony to be derived from the memory of witnesses." It being clear, then, that the principles of the older decisions are to govern the construction of the promises or acknowledgments under the new statute, it becomes important to determine what the old rule was. And in this State the rule was well settled, that to revive a debt which was barred by the statute of limitations, whether the statute theo- retically operates upon the debt itself or upon the remedy, there must be an express promise, or an acknowledgment of a present indebted- ness — a subsisting liability and a willingness to pay it. If the defend- ant denied the justice of the demand, or claimed the protection of the statute, or if the acknowledgment was accompanied by any suggestion which qualified or repelled the idea of a promise to pay, it destroyed the effect of what was said, and prevented an}' right of action from accruing on sucli statements. Cooks v. Weeks, 1 Hill, 45 ; Danforth V. Culver, 11 Johns. 146 ; Laurence v. Hopkins, 13 id. 288; /Sands y. Oelston, 15 id. 511 ; Purdy v. Austin, 3 "Wend. 187 ; Stafford v. Bryan, id. 532; Hancock v. Bliss, 7 id. 267; Allen v. Webster, 15 id. 284 ; Deyd's Ex'rs v. Jonei Ex^rs, 19 id. 491 ; Winchell v. Hicks, 18 ISr. Y. 560 ; S. C, 21 Barb. 448 ; Miller v. Baschore, 83 Penn. St. 356; S. C, 24 Am. Eep. 187; Shnonton v. Clark, 65 N, 0. 525 ; S. C, 6 Am. Rep. 752 ; Wackier v. Albee, 80 111. 47. A mere mention of an indebtedness, though without questioning it is not such an acknowledgment as will suspend the running of the statute. There must be an unqualified and direct admission of a present subsisting debt. Hanson v. Towle, 19 Kans. 273. The new DEFENSES. 799 Statute of limitations. — New promise. promise maybe express or implied. Waller w. Laoy, 1 Mann. & Gr. 64 ; Ross v. Boss, 20 Ala. 105 ; Phelps v. Williamson, 26 Vt. 230 ; Hall V. Bryan, 50 Md. 194. If it is an express promise, it must be clear and explicit, direct and positive. Strickland v. WalJcer, 37 Ala. 385 ; Yaw v. Kerr, 47 Penn. St. 333. Before examining the cases which relate to written signed promises or acknowledgments, it may be well to notice one class of cases in which a written promise is not necessary, because excepted from the operation of the statute. If the cause of action had accrued before the Code was adopted, a written promise is not required, and any promise which would have revived the debt under the old law will be a valid promise, although made since the Code took effect. Coe v. Mason, 41 Barb. 612; Gillespie v. Roselcrants, 20 id. 35; Winchell v. Hicks, 18 N. Y. 560; Lansing v. Blair, 43 id. 48; Van Allen v. Feltz, 4 Abb. Ct. App. 439 ; S. C, 1 Keyes, 332. But see Fletcher v. Updike, 67 Barb. 364. If a written promise or acknowledgment has been made in accord- ance with the statute, and the writing is subsequently lost, parol evi- dence of its contents may be given. HoAjdon v. Williams, 7 Bing. 163. The statute of this State does not require that the time when the acknowledgment or promise was made should appear in the writing, or be evidenced by writing. If, therefore, a writing containing either of the prescribed requisites is without date, or if the date stated is erroneous, parol evidence may be given of the time when it was executed. Kincaid v. Archibald, 10 Hun, 9 ; S. C. affirmed, 73 N. Y. 189. And see Handley v. Wharton, 11 Ad. & Ell. 934. The statute requires not only that the promise or acknowledgment shall be in writing, but also that it shall be signed by the party to be charged thereby. It will be observed that the language is signed, not subscribed, by the party. This distinction may not seem important to those who are not familiar with the course of adjudication here and in England ; but to those who have examined the matter, a very different impression may be produced. Before the adoption of the Kevised Statutes of 1830, the statute of frauds used the word signed in reference to the execution of writings containing promises required to be in writing. And under that statute it was well settled that the instrument need not be literally signed by subscribing the name of the promisor at the end of the writ- ing ; and it was held to be sufficient if his name was found anywhere in the writing, provided it was put there for the purpose of creating a liability on the part of the promisor. Davis v. Shields, 26 Wend. 341 ; 800 DEFENSES. Statute of limitations. — New promise. James v. Patten, 6 N. Y. 9. In these two cases the subject is fully discussed, and the distinction between signing and subscriiing an in- strument pointed out and enforced. The English statute, like ours, uses the word signed instead of sub- scribed ; and in two English cases, it has been held that a document which was written by the defendant, acknowledging his indebtedness, and containing his name written at the top of the instrument, was a sufficient signature to bind him. Hohnes v. Mackrell, 3 0. B. (N. S.) (3 J. Scott, N. S.) 789 ; Lobh v. Stariley, 5 Q. B. 574, and Bowe v. Thompson, 15 Abb. 377, is to the same effect. But passing these pre- liminary matters, and assuming that a written promise or acknowledg- ment exists which is sufficient in form, the next question will be, whether it is sufficient in substance to continue or revive a debt. And here again resort must be had to the English authorities, since they are generally in accordance with the decisions of the courts of this State ; and also because they are expositions of the law furnished by those from whom we have borrowed the statute itself. And first, then, let us notice those cases in which the written promise or acknowledgment was held to be sufficient. In Cornforth v. Smithard, 5 Hurlst. &Norm. 13, the following letter, subscribed by the defendant, was held to be an acknowledgment from which a promise to pay might be implied, so as to rebut the bar of the statute. " In reply to your statement of account received, I am ashamed the account has stood so long. I must beg to trespass on your kindness a short time longer, till a turn in trade takes place, as for some time things have been very flat." The court by Pollock, 0. B., said : " The letter is a clear admission of the debt un- accompanied by any condition as to payment. From that a promise to pay may be implied." Channbll, B., said : " The letter merely asks for indulgence in terms from which a promise to pay may be implied." In Godwin v. Culley, 4 Hurlst. & Norm. 373, the facts were as fol- lows : In 1847, the plaintiffs, who were solicitors, lent to the defendant £100 on a mortgage, £40 on a promissory note, and they also had a claim against him for costs. In 1857, the defendant wrote to the plaintiffs as follows : Sept. 26. I wish to inform you that I received yours this morning. I am going to leave my situation on the 1st November, 1857, and when the policy is paid on the 29th October, I hope you will have the whole of your accounts ready for me, as I hope to be with you on that day." " Oct. 25. Mr. Y., when here on Saturday, stated that the amount due against me was about £280. Of course this includes the £100 and interest that I had some years since, and the £40 promissory note that I jointly signed with the late Mr. B. Of course you are DEFENSES. 801 Statute of liiuitatious. — New promise. aware that you have £25 to my credit that Mr. Y. paid over when he could not complete the purchase in Iligh street," and these letters were held to be sufficient acknowledgments to take the case out of the statute. In Sldwell v. Mason, 2 Hurlst. & Norm. 306, the plaintiff sent in his bill to the defendant, who wrote an answer as follows : " I have received your bill. It does not specify sufficiently to which cottages the work was done ; for instance, you say, etc. (referring to some of the items of the bill). I do not know where all this is done. I shall feel obliged if you will more particularly explain, and take your agree- ments to Mrs. Heath's. It is my wish to settle your account immediately, but being at a distance I wish every thing very explicit and correct. I have asked Mrs. Heath to mark the agreements and send them to me, and I will return them by the first post, with instructions to pay, if correct." And this letter was held sufficient to take the case out of the statute. In Collis V. Stoolc, 1 Hurlst. & Norm. 605, the defendant, in answer to the plaintiff's application for payment, wrote as follows : " I shall repeat my assurance to you of the certainty of you being repaid your generous loan. Let matters remain as they are for a short time longer, and all will be right. The works I have been appointed to, but they are not yet worked with the full complement of labor ; this term will decide the matter." And this letter was held to be a sufficient ac- ktiowledgment to take the case out of the statute. The court said, by Pollock, C. B. : " But the letter may be taken by itself ; and it contains a distinct acknowledgment, with a promise to pay. No par- ticular form of words is required to constitute such a promise. ' All will be right,' must be understood by everybody to mean, ' you will be paid.'" Maetin, B., said: "In the letter of the 16th of April, the defendant says, ' all will be right ; ' that means, ' I will pay the money.' What follows does not qualify the promise." "Watson, B., said : " I am entirely of the same opinion ; and I will only add, with reference to an observation made during the argument, that the con- struction of letters of this kind is for the court." The case of McNamee v. Tenny, 41 Barb. 495, goes further than any of the preceding cases. The action was upon a promissory note, for $540.43, at six months after date, and dated March 21, 1854. The defense was the statute of limitations. To rebut this the plaintiff proved the following letters, which were written by the defendant, at the dates respectively mentioned. " Febmary 2d, 1859, I have been working at my matters since you was here, and find that I can get two-thirds of my indebtedness off; 101 802 DEFENSES. Statute of limitations. — New promise. but dreading to take the act for the name of it, I have come to the conclusion that I would borrow of my friends, providing that I can make a satisfactory arrangement. I propose to pay all of my creditors twenty per cent cash on the original notes or bills ; that is the best that I can do, and that is more than I can do without help. Answer immediately." The second letter read thus: " February 7th, 1859. Yours of the 5th inst. came to hand this morning, with one from Ames, Herrick & Barnes, 51 John street; they accept my proposition. I make the same offer to one and all alike. If I cannot make it a general thing, I shall try the other way. I have promise enough, full two-thirds without any of my N. T. creditors, but one iirm will sign the petition there ; but for the name of it I will borrow and get, and honorably if I possibly can. I have partly the promise of enough to pay twenty per cent on the original amount ; as I have a full list of every shilling of the amount I owe, I know just what it will take. I think I can get $1,000 ; that will not pay quite twenty per cent, but I can make up the difference in some way, and make a final settlement. Hoping you will consent and all the rest of my creditors, which I shall always remember with gratitude." There was a postscript in these words : " The amount to you at the above rate would be $108.09 cash." The third letter read thus : " September 24th, 1860. Tours of the 22d was this day received. In reply I hardly know what to say-; I expect to make some arrangement with my friends, who will be here during the fair, and then will write you, or rather I shall be in New York two weeks from to-day, if nothing happens, and will call and see you." At a general term, composed of three judges, it was held by two of the judges, against the opinion of the other, that these letters were sufficient to take the case out of the statute and to entitle the plaintiff to recover. It was held by a majority of the court that a mere written acknowledgment of the existence of the debt by the debtor was suffi- cient to revive the debt, although there was no intention expressed to pay the debt. This case certainly goes to the extreme limits to which any modern case has gone. And with great deference to the court which pronounced the judgment, it seems to me that it is not law. We have already seen, ante, 798, that it has long been settled in this State that the promise must be express, or there must be a plain inten- tion to pay, or that the statute is a bar. In this case the entire trans- action shows that the promise was a conditional one founded upon the contingency of a discharge by all the defendant's creditors, and that he DEFENSES. 803 Statute of limitations. — New promise. intended to obtain his discharge as an insolvent debtor, if he failed to get released otherwise. Every promise was based upon a condition which was not shown to have been performed, and there was nothing in the case from which any fair inference could be drawn showing an intention to pay the entire debt, or to pay any part of it, except upon the conditions specified. The case is directly opposed to the principle of the following authorities : Bloodgood v. Bruen, 8 IST. Y. 362 ; Win- chell V. Hicks, 18 id. 560; Laurence v. HopMns, 13 Johns. 288; Kennett v. MilbanTc, 8 Bing. 38 ; Rackham v. Marriott, 1 Hurlst. & Norm. 234; S. C, 2 id. 196. The English cases are all founded upon the principle that something more than a mere acknowledgment of the existence of the debt is necessary, and that there must be something which expresses a willingness to pay the debt, or that it cannot be en- forced, which is in entire accordance with the well-established rule in this State. See Turner v. Martin, 4 Hob. 661 ; Gommercial Mut. Ins. Go. V. Brett, 44 Barb. 4S9 ; Boss v. Eoss, 6 Hun, 80. Where a debtor, in a letter to his creditor, said, " I don't recollect when the bill was made, or when I had the powder, AviU 3^ou send the bill, and if it is all right, I will make it all satisfactory," and he then added that he had certain railroad bonds, which he hoped would be accepted in payment, " as money was out of the question," and this was held sufiicient to take the ease out of the statute of limitations. Loomis V. Decker, 1 Daly, 186. The makers of certain promissory notes were sued thereon, and they put in an answer, admitting that they made the notes, but alleging that they were insurance premium notes; that a loss had been sustained under the pohcy; and that the notes ought to be paid out of the insurance moneys; and it was held that this- was not a sufficient acknowledgment to revive a debt barred by the statute of limitations, since there was no admission of any pres- ent indebtedness, or of any willingness to pay the notes, from which a promise to pay might be inferred. Gommercial Mxit. Ins. Co. y. Brett, 44 Barb.' 489. In such a case, where the answer is a compul- sory statement under oath, the occasion when, and the circumstances under which, the admissions or statements in the answer are made, are sufficient to repel any implication of a promise to pay the notes, when the very object of the author was to avoid their payment. lb. Where a letter is written by a debtor, in which he in effect acknowl- edges the existence of an indebtedness, and therein proposes a compromise, but distinctly indicates an unwillingness to pay, and a determination not to pay any thing, if the offered compromise is re- 804 DEFENSES. Statute of limitations — New promise. jected, this is not such a recognition of the debt as wUl take it out of the statute of limitations. Oreuse v. Defiganiere, 10 Bosw. 122. In Collmson v. Margesson, 3 Hurlst. & Norm. 954, a letter was sent by the plaintiff to the defendant, applying for payment of a specified sum, to which the defendant answered by letters as follows: "I have sent your letter to Mr. Kell, and requested him to communicate with you ; he transacts my business in my absence. Siace my health broke down, which is some years ago, I have not attended to my business, but I am not conscious of ever having this bill of Mrs. CoUinson put before me until now, nor did 1 know that it was owing. I am much annoyed that her bill should have been so long unsettled," but this was held to be insufficient to take the case out of the statute. And the rule adopted by the court was, that a letter, the fair effect of which is, that the writer is uncertain whether the debt is owing, and will have the matter examined into, is not a sufficient acknowledgment in writing to take the case out of the statute, notwithstanding it contains expres- sions of regret that the debt should have been so long unpaid. In Eaokham v. Marriott, 2 Hurlst. & Norm. 196 ; S. C, 1 id. 234, the defendant, in answer to an application for the payment of a debt, wrote as follows : " I do not write to avail myself of the statute of limita- tions to refuse payment of the debt. I have not the means of pay- ment, and must crave a continuance of your indulgence. My situation as a clerk does not afford me the means of laying by a shilling ; but in time I may reap the benefit of my services in an augmentation of sal- ary that may enable me to propose some satisfactory arrangement. I am much obliged to you for your forbearance," and this was held not to be sufficient to take the case out of the statute. The court said: There is here an acknowledgment of a debt, but not an acknowledg- ment, coupled with a promise to pay, either on demand, or at a future period which has elapsed, or on a condition which has been fulfilled. An acknowledgment without a promise is not sufficient to take the case out of the statute of limitations. Looking to the current of authori- ties, and more especially to the last case on the subject, Smith v. Thome, 18 Q. B. 134, and being of opinion that the principle is applicable to the present case, we think that the acknowledgment must amount to a proanise to pay either on request or at a future period, or on a condi- tion. Here there is a mere expression of a hope to make some satis- factory arrangement, not an acknowledgment, coupled with a promise to pay." A case will not be taken out of the statute by a written ad- mission or acknowledgment of the debt, where the creditor at the same time executes a written signed paper, which purports to be a discharge DEFENSES. 805 Statute of litnitations. — New promise. of the debt, even though the discharge is inoperative in itself, and though it was given upon a condition which the defendant has failed to observe. Ooate v. Ooate, 1 Hurlst. & Norm. 29. The two docu- ments, when taken together, show that thongh there is an admission of a debt, it was the intention, on both sides, that the debt should never be paid. One party says : " I never will claim," and the other never intended to pay. lb. The defendant, in order to take a debt, pleaded as a set-off, out of the statute of limitations, put in evidence a letter written by the plaint- iff to Q., a third person, stating an account which showed the existence of a debt from the plaintiff to the defendant, but also showing that a balance was due from the defendant to the plaintiff, and proposing to settle the matter upon payment by the defendant to the plaintiff of a sum named. The defendant had not acceded to this proposal, and it was held that the letter was not a siifficient acknowledgment to take the case out of the statute. Francis v. HawJcesley, 1 El. & El. 1052. The court said : " Here the plaintiff merely made a proposal, that, if so much was allowed upon the one side, he would allow so much upon the other. It was only on that condition that he acknowledged the debt ; and that condition was never performed." An acknowledgment of a debt will not take it out of the statute, when it is made under circumstances or coupled with expressions which rebut that inference or presumption of a willingness to pay which nat- urally arises from an unqualified acknowledgment. Smith v. Thome, 18 Q. B. 134, 143 ; Tanne7- v. Smart, 6 Barn. & Ores. 603 ; Buck- master V. Bussell, 10 0. B. (N. S.) 745 ; ante, 798. To revive a debt, barred by the statute of limitations, there must be something more than a mere admission that the debt remains unpaid ; there must be something which shows that the party is willing to pay it. There need not be an express promise, but there must be such circumstances as will authorize the inference that the party is willing and intends to pay the demand. Winchell v. Hicks, 18 N. T. 560 ; ante, 798. Where the acknowledgment of the existence of the debt is made under such circumstances as to show that the admission was not voluntary, the bar of the statute will not be removed. When the answer or admission is drawn out of the party as a witness, it is not a voluntary statement, and will not revive a debt. Bloodgood v. Bruen, 8 N. Y. 362, 368. And see Arnold, v. Downing, 11 Barb. 554. Where the admission is voluntary and is made by the party on his own motion, it may be sufficient to remove the bar of the statute, even though made under oath. And if a party makes an inventory of his debts, with an 806 DEFENSES. Statute of limitatioQd. — New promise. accompanying affidavit of the existence of such debts, for the purpose of obtaining an insolvent's discharge, which is granted to him, this will be a sufficient acknowledgment to revive any of the debts mentioned in such inventory. Bryar v. Hillcocks, 3 Cow. 159. So, where a creditor had two promissory notes against the defendant, who made ont a statement of his affairs at the request of such creditor, and these two notes were insei-ted in the statement by the defendant, showing that he was liable upon these with other debts, it was -held that this was sucli an acknowledgment as took the case out of the statute. Holmes V. MaokreU, 3 C. B. (N. S.) 789. So, the publication of a statement showing the amount of unclaimed deposits remaining "in a bank, although made in pursuance of a statute, is an acknowledgment of indebtedness to the several persons named as depositors, from which a new promise will be implied, and it will operate to revive or continue the debt so as to prevent the operation of the statute of limitations. Adams v. Orange Co. Bank, 17 Wend. •514. If the bank claims that the amount has been paid, though the evidence of payment is lost, that fact should be contained in the pub- lished statement, and it would then rebut the presumption of a promise to pay. lb. "Where an executor included in his inventory of the estate a promis- sory note given by him to the testator, which was then outlawed, this was held to be a sufficient acknowledgment in writing, to remove the bar of the statute. Boss v. Boss, 6 Hun, 80 ; Morrow v. Morrow, 12 id. 386 ; Clark v. Van Amburgh, 14 id. 558. So, it was held tliat an acknowledgment of a debt by an assignor, made in an assignment for the benefit of his creditors, where he enumerated a certain debt as one of his Habilities, was a sufficient acknowledgment to take that debt out of the statute. Trustees of Kohnstaunn v. Foster, 28 How. 273 ; S. C, 18 Abb. 305. So an explicit admission in writing of an existing in- debtedness, and a promise to pay the interest thereon will be sufficient to remove the bar of the statute. Kincaid v. Archibald, 73 !N". Y. 189. An admission that a debt is unpaid, contained in a letter written on Sunday, has been held sufficient to remove the bar of the statute, and the letter was held to be admissible for that purpose. Ayres v. Bane, 39 Iowa, 518. See, also, TAomas v. ^wwfer, 29 Md. 406; 7 Act. and Def. 119. But see contra, Bumgardner v. Taylor, 23 Ala. 687. Where a debtor wrote to his creditor as follows : " I am well aware that I owe you for money borrowed. As you have the figures I wish you would at your leisure make out a statement of what you consider my indebtedness to you, and send it to me, resting assured that in all DEFENSES. 807 Statute of limitations. — New promise. money matters I wish to act honestly to everybody," it was held that the letter contained an acknowledgment of present indebtedness from which a promise to pay could be implied. Fiskey. Hibbard, 13 Jones & Sp. 331. So when the maker wrote a letter to the payee of a promissory note, inclosing $5 to be indorsed on the note, and stating: "My son James will wind up my business with instructions to pay you," it was held that the letter contained a written acknowl- edgment equivalent to a new promise within the statute of limitations. WeVb V. Carter, 63 Ga. 416. And see Bayliss v. Street, 61 Iowa, 627. The statute uses both words "promise" and "acknowledgment," and it is not to be presumed that the legislature intended that both words should be construed as meaning precisely the same thing. If a distinct and positive promise of payment is made, there could be no doubt about the liability of the party promising. But such promises are not always made, although there may be a clear and ex- plicit acknowledgment of the existence of the debt ; and if such an acknowledgment is made under circumstances which show a willing- ness and intention to pay the debt, this is such an admission of the debt as authorizes the presumption of a promise to pay the amount. This view is amply sustained by authority. In the case of Linsell v. Bonsor, 2 Bing. N. C. 241, 244, the defendant wrote a letter to the plaintifE, in which he acknowledged the existence of the debt, but the letter also contained an assertion that he would not have any thing to do with the plaintiff's claims; that he wished the plaintiff would make him a bankrupt ; and that he would rather go to jail than pay the plaintiff"; and this was held to be an insufficient acknowledgment to revive the claim. Tindal, Ch. J., said: "Was this an acknowledg- ment or a promise to take the defendant's case out of the statute of limitations ? The words of the statute are not only promise, but ack- nowledgment, and in applying the two words the legislature must have intended some distinction between them. There can be no difficulty in understanding what is a promise, and imder that statute it is clear that the letters in question contain no promise to pay the plaintiff's claim ; for in one of them tlie defendant, repudiating the demand made on him, desires the plaintiff to make him a bankrupt, and, in the other, says he will rather go to jail than pay. Then is there any acknowledg- ment ? A distinct and unqualilied acknowledgment would have the same effect as a promise, because from such an acknowledgment the law implies a promise to pay. But why should an aclmowledgment be construed as a promise, when it is accompanied with what is a con- 808 DEFENSES. Statute of limitations. — Conditional promises. tradietion of any promise ? " And see Smith v. Thorn, 18 Q. B. (N. S.) 134, 143 ; Bachham v. MarrioU, 2 Hurlst. & Norm. 196. An ofEer to pay a promissory note in a worthless currency, such as Confederate notes, unaccepted by the holder, wiU not revive a debt barred by the statute. Simonton v. Olarh, 65 N. C. 525 ; S. C, 6 Am. Kep. 752. Nor wiU a promise to settle with the claimant have that efiect. Belly. Crawford, 8 Gratt (Va.) 110; McClelland v. West, 59 Penn. St. 487. And a debtor who allows an account against him to become stated, by omitting to dispute it when pre- sented, does not thereby waive the defense of the statute. Bucklin V. Chopin, 1 Lans. 443. Conditional promises. A promise to pay may be clear and explicit, or an acknowledgment may be unequivocal as to the existence of the . demand, and yet the promise of payment, or the acknowledgment of indebtedness, may be limited by some condition, which practically nul- lifies its effect until the condition is performed. And it is a well-set- tled rule, that in every case of a conditional promise of payment, the plaintiff must show performance of such condition before he can recover. Where a defendant promises thus : " I cannot pay the debt at present, but I will pay it as soon as I can," this will not sustain an action unless the plaintiff proves that the defendant is able to pay. Tanner v. Smart, 6 Barn. & Ores. 603 ; Haydon v. Williams, 7 Bing. 163. So a promise to pay as soon as the defendant conveniently can will not support an action without proof that the defendant is able to pay. Cooks V. Weeks, 7 Hill, 45. A promise to pay a debt, if the defendant is successful in business, and that in such case he would commence payment at the end of one year, is a conditional promise ; and unless the plaintiff shows a performance of the condition he cannot recover. Wakeman v. Sherman, 9 N. Y. 85. It will not be sufficient to render the defendant liable, to prove that he is able to pay, unless the means were derived from the business mentioned. lb. A promise to pay when able requires proof of ability before there can be a recovery. Wait v. Morris, 6 Wend. 394. A promise to pay as soon as the defendant could, without distressing his family, requires proof that he can pay without distressing his family. Scouton v. Eis- lord, 7 Johns. 36. There may be other conditions than those of ability to pay ; and whatever the condition may be, if legal, it must be shown to have been performed before an action lies upon the promise. A promise to pay such creditors as should sign a discharge upon a part payment of their debts will not sustain an action unless the plaint- DEFENSES. 809 Statute of limitations. — New promise, by whom made. iff shows that he signed such discharge. Kennett v. Milbank, 8 Bing. 33. So, a promise by a debtor to pay his debt ia specific articles of personal property is not an absolute promise, and the plaintiff cannot recover unless he proves that he demanded the articles, and that he was ready to accept them, and that the defendant refused to deliver them in payment as promised. Hush v. Barnard, 8 Jolms. 407. There is no difference whatever in relation to the validity of the prom- ise, nor as to its le£:al effect, whether made before the debt has become barred by the statute, or whetlier made after that time. Shoemaker v. Benedict, 11 IST. Y. 176, 186 ; Winchell v. Hicks, 18 id. 558, 560. Promise, by whom made. The language of the statute is, that the promise or acknowledgment shall be signed hy the party to he charged thereby. It does not provide for the signing by an agent, as does the statute of frauds. And, in giving construction to the statute, it has been held that a letter written in the defendant's name, by his wife, and at his request, is not sufficient to take the case out of the statute, on the ground that the debtor must sign the paper in proper person, and that the signature of such person is not sufficient. Hyde V. Johnson, 2 Bing. N. C. 776. And see Whippy v. Hillary, 3 Barn. & Ad. 399. After a debt due from a partnership is barred by the statute of lim- itations and the partnership has been dissolved, a promise by one part- ner to pay the debt, or an acknowledgment of indebtedness by him, does not revive the debt against his copartners. Payne v. Slate, 39 Barb. 634 ; S. C. affirmed, 29 N. Y. 146 ; Newman v. McComas, 43 Md. 70. An acknowledgment of the debt by the personal representatives of the original debtor will not take the case out of the statute. Bunker V. Althearn, 35 Me. 364; Tazewell v. Whittle, 13 Gratt. (Ya.) 329; Phillips V. Beal, 32 Beav. 26. Nor will a debt barred by the statute at the death of the debtor be revived by the promise of his personal representative to pay it. Forney v. Benedict, 5 Penn. St. 225 ; Hanson V. Towle, 19 Kans. 273 ; Pitts v. Wooten, 24 Ala. 474; Huntington V. Babbit, 46 Miss. 528. But see Sharve v. Joyce, 36 N. J. L. 44 ; S. C, 13 Am. Eep. 417. A written acknowledgment of a debt, although made by an infant, is an answer to a defense of the statute of limitations, if the debt was incurred for necessaries supplied to him. Willins v. Smith, 4 El. & Bl. 180. A written signed agreement or promise made before the statute at- taches, that the party will not interpose the defense of the statute of 102 810 DEFENSES. Statute of limitations. — New, promise, to whom made. limitations, is a sufficient answer to that defense, if afterward set up in the defendant's answer, provided the plaintiff has acted upon it. Gaylord v. Van Loan, 15 Wend. 308 ; TTtica Ins. Co. v. Bloodgood, 4 id. 652. So, it has been held tliat when a defendant procures a written extension of time from his creditors, this is equivalent to a prom- ise not to plead the statute. lioioe v. Thompson, 15 Abb. 377. And it was also held that the operation of the statute was suspended during the time of such extension. lb. Promise, to whom made. Notwithstanding some of the cases de- cided by the Supreme Court that a promise made to a stranger would be sufficient to revive a debt barred by the statute, it is now settled by the Court of Appeals that iinless the promise is made to the creditor, or to some one in his behalf, it will not be sufficient to prevent the bar of the statute, nor will it revive the debt, ^¥a'keman v. Sherman, 9 N. Y. 86 ; Bloodgood v. Bruen, 8 id. 362 ; Nillack v. Goodman, 67 Ind. 174. A promise to an agent or attorney of the payee of a note will be suf- ficient to revive the note ; and any subsequent indorsee may avail him- self of sach promise, to enable him to recover upon the note. Pinher- ton V. Bailey, 8 Wend. 600 ; Dean v. Hewit, 5 id. 257. The law does not require that the acknowledgment of the debt shall be wholly and exclusively made by the debtor to the creditor. It is suf- ficient if it be made to the creditor's agent, or some person acting for him or in his interest who may be reasonably expected to communicate it to him, and on which communication he may be expected to repose. Winterton v. Winterton, 7 Hun, 230 ; Xirhj v. Mills, 78 JST. C. 124 ; S. C, 24 Am. Rep. 460. But, according to the decided weight of au- thority, a promise to pay a debt, made to a person not legally or equitably interested in the same, and who does not pretend to have any authority from the creditor to call upon the debtor in relation to the debt, will not avoid the bar of the statute. MoGrew v. Forsyth, 80 111. 596; Par- leer V. Shuford, 76 N. C. 219 ; Trousdale v. Anderson, 9 Bush, (Ky.), 276 ; Sibert v. Wilder, 16 Kans. 176 ; S. C, 22 Am. Rep. 280 ; Rivigs V. Oroohs, 26 Ark. 540 ; Cape Girardeau Co. v. Harbison, 58 Mo. 90 ; Fletcher v. Updike, 67 Barb. 364. And it is held that an acknowledg- ment made to the agent of the creditor, without the knowledge of the debtor that he was such agent, has no more force than if made to a stranger. Mc Kinney v. Snyder, 78 Penn. St. 497. To render the promise or acknowledgment available, it must be made before the action is commenced ; for if made after that time, it will not be any answer to the defense of the statute of limitations. Bateman v. Pinder, 3 Q. B. 574. The head-note to Danforth v. Cul/oer, 11 DEFENSES. 811 Statute of limitations. — Part payments. Johns. 146, to the contrary, is not sustained by the case, for the court did not pass upon the question, because the promise was held to be en- tirely insufficient, whenever it might have been made. And upon principle it is entirely clear that the promise ought to be made before the action is brought ; for, even upon the hypothesis that the action is founded upon the original debt, as the consideration for the promise, it is still true that no action could be maintained but for the promise ; and if such promise is not in existence at the time of the commencement of the action, then the cause of action is not perfect at its commencement. Hence it is held that a promise made after the commencement of a suit, or by admission in the pleadings, will not, in general, revive a right of action barred by the statute. Bradford v. Spyker, 32 Ala. 134. New promise, etc., as to tort. Although a new promise or an acknowledgment may continue or revive a cause of action arising upon contract, there is no such rule in relation to torts. And, therefore, where a cause of action for a tort is barred by the statute, a new promise is no answer to a defense of the statute, if pleaded. Oothout v. Thomp- son, 20 Johns. 277. A promise to do what is right or to make compen- sation is not a new tort, nor can it revive the old one so as to give a right of action for this original tort. lb. The most that such an acknowledgment shows is that the plaintiff had a cause of action more than six years before the action was brought, but that does not show a cause of action within six years, which must be shown or the action will fail. lb.; Hurst v. Parker, 1 Bam. & Aid. 92 ; S. C, 2 Chit. 249. Part payments. Although, as we have just seen, the law requires a written promise or acknowledgment when that alone is relied upon to take a case out of the operation of the statute, there is still one part of the law wliicli remains entirely unchanged. A part payment of either principal or interest will have the same effect now that it had before the enactment of the Code. Yol. 1, 114. For this reason the older decisions are as valuable expositions of the present state of the law as though the statute had not been adopted. Where a part payment is made upon a debt, whether the sum paid is principal or interest, it is a recognition of the existence and of the legality of the demand, and from tliis admission the law implies a promise to pay the remainder of the debt, though there are some quali- fieations of the rule. Harper v. Fairley, 53 N. Y. 442^ Smith v. Ryan, ject of an action. They may, in the submission, agree that a judgment of a court of record, specified in the instrument, shall be rendered upon the award, made pursuant to the submission. If the Supreme Court is thus specified, the submission may also specify the county in which the judgment shall be entered. If it does not, the judgment may be entered in any county. § 2367. Where a submission is made as prescribed in this title, an additional arbitrator or an umpire cannot be selected or appointed un- less the submission expressly so provides. Where a submission, made either as prescribed in this title or otherwise, provides that two or more arbitrators, therein designated, may select or appoint a person as an additional arbitrator or as an umpire, the selection or appointment must be in writing. An additional arbitrator or umpire must sit with the original arbitrators upon the hearing. If testimony has been taken before his selection or appointment, the matter must be reheard, unless a rehearing is waived in the submission, or by the subsequent written consent of the parties, or their attorneys. § 2368. Subject to the terms of the submission, if any are specified therein, the arbitrators, selected as prescribed in this title, must appoint a time and place for the hearing of the matters submitted to them ; and must cause notice thereof to be given to each of the parties. They, or a majority of them may adjourn the hearing from time to time, upon the application of either party, for good cause shown, or upon their own motion ; but not beyond the day fixed in the submis- sion for rendering their award, unless the time so fixed is extended by the written consent of the parties to the submission, or their attorneys. § 2369. Before hearing any testimony, arbitrators selected either as prescribed in this title or otherwise must be sworn, by an officer desig- nated in section 842 of this act, faithfully and fairly to hear and ex- amine the matters in controversy, and to make a just award, according to the best of their understanding ; unless the oath is waived, by the written consent of the parties to the submission, or their attorneys. § 2370. The arbitrators, selected either as prescribed in this title or otherwise, or a majority of them, may require any person to attend before them as a witness ; and they have, and each of them has, the the same powers, with respect to all the proceedings before them, which are conferred, by the provisions of title second of chapter ninth of this act, upon a board, or a member of a board, authorized by law to hear testimony. 8 2371. All the arbitrators, selected as prescribed in this title, must 105 834 DEFENSES. Arbitrament and award. meet together, and hear all the allegations and proofs of the parties ; but an award by a majority of thetn is valid, unless the concurrence of all is expressly required iu the submission. Unless it is otherwise expressly provided in the submission, the award may require the pay- ment, by either party, of the arbitrators' fees, not exceeding the fees allowed to a like number of referees in the supreme court ; and also their expenses. § 2372. To entitle the award to be enforced, as prescribed in this title, it must be in Avriting; and within the time limited in the sub- mission, if any, subscribed by the arbitrators making it ; acknowledged or proved, and certified, in like manner as a deed to be recorded ; and either filed in the oftice of the clerk of the conrt, in which, by the submission, judgment is authorized to be entered upon the award, or delivered to one of the parties, or his attorney. § 2373. At any time within one year after the award is made as pre- scribed in the last section, any party to the submission may apply to the court, specified in the submission, for an order confirming the award; and thereupon the court must grant such an order, unless the award is vacated, modified or corrected, as prescribed in the next two sections. Notice of the motion must be served upon the adverse party to the submission, or his attorney, as prescribed by law for service of notice of a motion upon an attorney in an action in the same court. In the Supreme Court the motion must be made within the judicial district, embracing the county where the judgment is to be entered. § 2374. In either of the. following cases, the court, specified in the submission, must make an order vacating the award, upon the appli- cation of either party to the submission : 1. Where the award was procured by corruption, fraud or other undue means. 2. "Where there was evident partiality or corruption in the arbitra- tors, or either of them. 3. Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon suflficient cause shown, or in refusing to hear evidence pertinent and material to the controversy ; or of any other misbehavior, by which the rights of any party have been preju- diced. 4. Where the arbitrators exceeded their powers, or so imperfectly executed them, that a mutual, final and definite award, upon the subject- matter submitted, was not made. Where an award is vacated, and the time, within which the submis- DEFENSES. 835 Arbitrament and award. sion requires the award to be made, has not expired, the court may, in its discretion, direct a rehearing by the arbitrators. § 2375. In either of the following cases, the court specified in the submission must make an order modifying or correcting the award, upon the application of either party to the submission : 1. Where there was an evident miscalculation of figures, or *an evi- dent mistake in the description of any person, thing or property re- ferred to in the award. 2. Where the arbitrators have awarded upon a matter not submit- ted to them, not affecting the merits of the decision upon the matters submitted. 3. Where the award is imperfect in a matter of form, not affecting the merits of the controversy, and, if it had been a referee's report the defect could have been amended or disregarded by the court. The order may modify and correct the award, so as to affect the in- tent thereof, and promote justice between the parties. § 2376. Notice of a motion to vacate, modify, or correct an award, must be served upon the adverse party to the submission, or his attor- ney, within three months after the award is filed or dehvered, as prescribed by law for service of notice of a motion upon an attorney in an action. For the purposes of the motion, any judge, who might make an order to stay the proceedings, in an action brought in the same court, may make an order, to be served with the notice of motion, staying the proceedings of the adverse party to enforce the award. § 2377. When the court vacates an award, costs, not exceeding twenty-five dollars and disbursements, may be awarded to the prevail- ing party ; and the payment thereof may be enforced, in like manner as the payment of costs upon a motion in an action. § 2378. TJpon the granting of an order confirming, modifying, or correcting an award, judgment may be entered in conformity there- with, as upon a referee's report in an action, except as is otherwise prescribed in this title. Costs of the application, and of the proceed- ings subsequent thereto, not exceeding twenty-five dollars and disbursements, may be awarded by the court, in its discretion. If awarded, the amount thereof must be included in the judgment. § 2379. Immediately after entering judgment, the clerk must attach together and file the following papers, which constitute the judgment- roll : 1. The submission ; the selection or appointment, if any, of an addi- tional arbitrator, or umpire ; and each written extension of the time, if any, within which to make the award. 836 DEFENSES. Arbitrament and award. 2. The award. 3. Each notice, afBdavit, or other paper, used upon an ap[)Hcation to confirm, modify, or correct the award, and a copy of each order of the court, upon such application. 4. A copy of the judgment. The judgment may be docketed, as if it was rendered in an action. § 2380. The judgment so entered has the same force and effect, in all respects, as, and is subject to all the provisions of law relating to, a judgment in an action ; and it may be enforced, as if it had been ren- dered in an action in the court in which it is entered. § 2381. An appeal may be taken from an order vacating an award, or from a judgment entered upon an award, as from an order or judg- ment in an action. The proceedings upon such an appeal, including the judgment thereupon, and the enforcement of the judgment, are governed by the provisions of chapter twelfth of this act, as far as tbey are applicable. § 2382. The death of a party to a submission, made either as pre- scribed in this title or otherwise, or the appointment of a committee of the person or property of such a party, as prescribed in title sixth of this chapter, operates as a revocation of the submission, if it occurs before the award is filed or delivered ; but not afterward. Where a party dies afterward, if the submission contains a stipulation, authorizing the entry of a judgment upon the award, the award may be confirmed, vacated, modified, or corrected, upon the application of, or upon notice to, his executor or administrator, or a temporary ad- ministrator of his estate; or, where it relates to real property, his heir or devisee, who has succeeded to his interest in the real property. Where a committee of the property, or of the person, of a party, is appointed, after the awai-d is filed or delivered, the award may be confirmed, vacated, modified, or corrected, upon the application of, or notice to, a committee of the property ; but not otherwise. In a case specified in this section, a judge of the court may make an order, extending the time within which notice of a motion to vacate, modify, or correct the award, must be served. Upon confirm- ing an award, when a party has died since it was filed or delivered, the court must enter a judgment in the name of the original party ; and the proceedings thereupon are the same, as where a party dies after a verdict. § 2383. A submission to arbitration, made either as prescribed in this title or otherwise, cannot be revoked by either party, after the alle- gations and proofs of the parties have been closed, and the matter DEFENSES. 837 Arbitrament and award. — The submission, etc. finally submitted to the arbitrators for their decision. A revocation, when allowed, must be made by an instrument in writing, signed by the revoking party, or his authorized agent, and delivered to the arbi- trators, or one of them ; and it is not necessary, in any case, that the instrument of revocation should be under seal. Any party to a sub- mission may thus revoke it ; whether he is a sole party to the contro- versy, or one of two or more parties on the same side. § 2384. Where a party expressly revokes a submission, made either as prescribed in this title or otherwise, any other party to the submis- sion may maintain an action against him, and also against his sureties, if any, upon the submission, or any instrument collateral thereto, in which action the plaintiff may recover all the costs and other expenses, and all the damages which he has incurred in preparing for the arbitra- tion, and in conducting the proceedings to the time of the revocation. Either of the arbitrators may recover, in an action against the revoking party, his reasonable fees and expenses. § 2385. A sum, penalty, forfeiture, or damages, shall not be recovered for a revocation of a submission to arbitration, made either as pre- scribed in this title or otherwise, except as prescribed in the last section ; notwithstanding any stipulated damages, penalty, or forfeiture, ex- pressed in the submission, or in any instrument collateral thereto. § 2386. This title does not affect any right of action in affirmance, disaffirmance, or for the modification of a submission, made either as prescribed in this title or otherwise, or upon an instrument collateral thereto, or upon an award made or purporting to be made in pursuance thereof. And, except as otherwise expressly prescribed therein, this title does not affect a submission, made otherwise than as prescribed therein, or any proceedings taken pursuant to such a submission, or any instrument collateral thereto. The subniission, and who may submit. The sections of the statute, which have just been cited, do not, in any manner, abrogate the right to submit matters to arbitration by a parol submission. The general rule is, that a parol submission of matters to arbitrators is valid ; and it is only when the parties desire to enforce the award according to the provisions of the statute, that a submission in writing is important. Diedrioh v. Richley, 2 Hill, 271 ; and see Wood v. Auiurn, etc., B. R., 8 K T. 160 ; Robertson v. McNiel, 12 "Wend. 578 ; Burnside v. Whitney, 21 K T. 148 ; Gay v. Waltman, 89 Penn. St. 453 ; Code of Civil Proc, § 2386. Statutory provisions do not supersede the com- mon law practice of arbitration, unless expressly so provided; and par- ties who do not choose to resort to the statutory method, may conform 838 DEFENSES. Arbitrament and award. — The aubmission, etc. to the requisites of the common law practice, and the award will be binding and operative. Pierce v. Kirby, 21 W is. 1 24 ; Conger v. Dean , 3 Iowa, 463. And see Wood v. Tunnidif, 7i N. Y. 38 ; Day v. Hammond, 57 id. 479; S. C, 15 Am. Eep. 522. At common law a parol submission is valid and binding except where the controversy relates to land, or to some matter in reference to which the parties could not bind each other bj parol. Titus v. ScantUvg, 4 Blackf. (Ind.) 89 ; French v. New, 28 N. Y. 147; S. C, 2 Abb. Ct. App. 209. Corporations may submit demands to arbitration in the same manner as individuals, unless there is something in their charter or some statute which prohibits them ; and the submission need not be under the cor- porate seal ; it may be done by resolution. Brady v. Mayor, etc., of Brooklyn, 1 Barb. 584. So, a submission has l)een held valid where it was made by the presi- dent and two of the trustees of the corporation, where all the trustees also attended before the arbitrators, and took part in the controversy as witnesses. Isaacs v. Beth Ham.edash Soc, 1 Ililt. 469. A municipal corporation, or any of its departments, may make a valid submission. Kane v. Fond Du Lac, 40 Wis. 495 ; Hemington V. Harrison County Court, 12 Bush (Ky.), 148. The board of super- visors of a county may submit to arbitration the validity and reason- ableness of a claim against the county. People v. Supervisors, 24 Hun, 413. And the select-men of a town may submit to arbitration any claim they have power to audit and adjust. Campbell v. Upton, 113 Mass. 67. The general rule is, where there is capacity to contract and liability to pay, there is power to arbitrete. People v. Supervis- ors, 24 Hun, 413. But an oiScer of the State or national govern- ment has no authority to submit matters on their behalf unless the power is given by the statute. United States v. Ames, 1 "Wood & M. (C. C.) 76. Executors or administrators have power to submit to arbitration dis- puted claims or demands in favor of or against the estate they re- present. Wood V. Tunnidif, 74 N. Y. 38 ; Wilkins v. Mitchel, 1 Ld. Eaym. 348; Barry y. Push, 1 Term. H. 691; Schoonmaker v. Roosa, 17 Johns. 301 ; Bean v. Farnam, 6 Pick. 269 ; Wheatley v. Martin, 6 Leigh, 62 ; Ailing v. Munson, 2 Conn. 691 ; Bennett v. Pierce, 28 id. 315. See Clark v. Hoyle, 52 HI. 427. The guardian of an infant may submit claims in behalf of his ward to arbitrators, and the award will bind the infant, even after he attains his full age. Weed v. Fills, 3 Caines, 253. As to the powers of partners in submitting matters to arbitration, see vol. 1, 536. DEFENSES. 839 Arbitrament and award. — The submission and who may submit. A mere general authority to collect claims, or even to compromise them, does not of itself carry with it the power to submit such claims to arbitration, unless the power arises from some general usage, or is given by a rule of coui-t. Alexandria Canal Co. v. Swann, 5 How. 83 ; BuoTcland v. Con.way, 16 Mass., 396 ; Henley v. Sqper, 8 Barn. & Cress. 16. But where claims are put into the hands of an attornej'^, and put into suit by direction of the owner, the attorney has power to refer or arbitrate the cause. Fihner v. Belber, 3 Taunt. 486 ; Wilson v. Young, 9 Barr. 101; Holker v. Parker, 1 Cvaxich., 436; TalhotY. McGee, 4. T. B. Mon. 377; Jenkins v. Gillespie, 10 Sme. & M. 31 ; Scarborough \. Reynolds, 12 Ala. 252; Faviell v. Eastern Counties Ry. Co., 2 Exch. 344 ; Morris v. Grier, 76 N. C. 410, Where a submission is made by an agent, without authority, the principal may ratify the act, by appearing before the arbitrators, and contesting the questions heard and decided by them. Hays v. Hays, 23 Wend. 366 ; Diedrick v. RioUey, 2 Hill, 271. And see Faviell v. Fastern Counties R. R., 2 Exuh. 344. If an agent enters into a sub- mission to arbitration in his own name, he will be personally bound to perform the award. Smith v. Van JVostrand, 5 Hill, 419. And the rule is the same when there is a submission by one person for him- self, and on behalf of others, for whom he is not authorized to act. lb. After a party has taken and enjoyed great benefits from an award, it is too late for him to object to the award upon the ground that his agent had no written or legal authority to bind him b}' the submission. Ferry v. Mulligan, 58 Ga. 479. There are some persons absolutely disqualified from submitting a controversy to arbitration either at common law or under the statute ; and these are infants, and persons incompetent to manage tlieir affairs by reason of lunacy, idiocy or habitual drunkenness. Code of Civil Pro., § 2365, ante, 832. A married woman could not submit a mattter to arbitration under the Revised Statutes. 8 E. S. (5th ed.) 855, § 1 ; Feep v. Feep, 17 Hun, 152. But her disability to become a party to a common-law arbitra- tion was removed by the married women acts. Palmer v. Bams, 28 N. T. 242 ; Smith v. Sweeny, 35 K Y. 291. And under the Code of Civil Procedure she may be a party to a statutory arbitration. See Code of Civil Pro., §§ 2365, 2366. Ante, 832. An agreement to refer matters in dispute to arbitration, will not form any bar to an action subsequently brought upon the same mat- ter, even though th« arbitration may then be pending. Kill v. Hollister, 840 DEFENSES. Arbitrament and award. — What questions may be submitted. 1 Wils. 129; Thompson v. GharnocJc, 8 Term, 139 ; Harris y. Reynolds, •7 Q. B. 71 ; Boggart v. Morgan, i Sandf. 198 ; S. C, 5 N. Y. 422- The courts cannot be ousted of their jurisdiction by any such agree- ment of the parties. lb. But, although such an agreement will not bar an action for the claim, yet it is so far valid, that an action will lie for its ■ breach. Livingston y. Halli, 5 Ell. & Bla. 132. And it has been held that an agreement that the amount of damasres recoverable in an action at law shall be determined by arbitrators before the trial, is binding, and that no action will lie until such arbitration is had. Avery v. /Scott, 8 Exch. 497; S. C. ,6 11. L. Cas. 811. The plaintiff and the defendants, having been partners in business, and having by mutual agreement, dissolved, the defendants by a writ- ten stipulation, agreed to pay the plaintiff for his interest in the good will of the business, such sum as it should be decided to be reasonably worth, by arbitrators to bo appointed by the parties. Under this agree- ment arbitrators were appointed, who were unable to come to any decision on the question submitted to them, and it was held that the plaintiff could not maintain an action to have the value of his interest de- termined and paid to him and that in the absence of bad faith on the part of the defendants, the rendering of an award by the arbitrators was a condition precedent to the plaintiff's right of action. Altman v. Altman, 5 Daly, 436. See Gibbs v. Continental Ins. Co., 13 Hun, 611 ; Lasher v. Northioest Ins. Co., 55 How. 318 ; S. C, 18 Hun, 98 ; 6 Act. & Def. 515. But a stipulation in a contract for work to be done on a railroad, that all matters in dispute, as to any matters con- nected with or growing out of the contract, shall be submitted to the chief engineer and the consulting engineers of the company, is no bar to an action upon the contract. Hart v. Lanman, 29 Barb. 410. What questions may be submitted. The statute expressly pro- hibits a submission of a controversy to arbitration when the controversy arises respecting a claim to an estate in real property, in fee or for life. And this prohibition applies to all arbitrations whether under the statute or otherwise. Ante, 832. This prohibition is imperative, and, therefore, a submission of a claim to a freehold estate in real property, is not merely voidable, but is absolutely void, and incapable of rati- fication. Wiles V. Peck, 26 IST. T. 42. But the statute does not prohibit the submission of a claim to an estate for years, or other interest for a term of years, or for one year or less, or of a contro- versy respecting the partition of real property between joint tenants or tenants in common, or of a controversy respecting the boundaries of DEFENSES. 841 Arbitrament and Award. — Form and construction of submission. land, or the admeasurement of dower. Ante, 832. Robertson v. Mg- Nwl, 12 "Wend. 678. The statute does not forbid a submission of claims to an estate in lands, unless it is in those cases in which the legal title is in controversy, and does not apply when nothing but the equitable title is in dispute. OIgoU v. Wood, 14 ]Sr. Y. 32 ; S. C, 15 Barb. 644. Disputes between partners relative to the partnership property or business, may be sub- mitted to arbitration. Backus v. Fobes, 20 N. T. 204. See Locke v. JF'iiley, 14 Hun, 139. And where a submission to arbitrators was made to determine in what manner the assets of the firm should be appropriated for the payment of the firm debts, and the submission required that the arbitrators should make a statement of the matters and accounts between the parties on the principle of partnership ; it was held that the provision did not require that a statement of the part- nership affairs should be incorporated into the award and made a ])art of it, -but that it merely prescribed the principle on which they should be stated. Backus v. Fobes, 20 N. Y. 204. It will be observed that the language of the statute is very broad in- deed, for it permits any matter to be arbitrated if it might be the sub- ject of an action at law, or a suit in equity, with certain restrictions as to real estate. Ante, 832. It extends also to all persons except infants, and persons of unsound mind. lb. But when parties consent to arbitrate matters of difference between them, they are not bound to submit all their difiiculties to ar- bitration. They may submit certain particular matters for adjudication in that manner, and adjust or settle the others themselves, or leave it open to litigation. And so, too, they may submit a part of a single transaction to arbitration ; and, therefore, it is a valid submission when but a single item of an account is thus submitted. McBride v. Hagan, 1 Wend. 326, 840 See Jones v. Welwood, 11 N. Y. 208. Form and construction of submission. If the parties desire to enforce an award in the manner prescribed by the statute, it is neces- sary that the submission should be by an instrument in writing. Ante, 832. But in all other cases a verbal submission is as valid as it was before the enactment of the statute. One of the most usual modes of submission is by mutual arbitration bonds specifying the terms of the submission, the matters submitted, the form and nature of the a-\vard, the time when that is to be made, and the authority to enter judgment upon the award, if that is intended. In short, the bonds will be so drawn as to express the intentions of the parties, which is all the law requires. 106 842 DEFENSES. Arbitrament and award. — Form and construction of Bubmiasion. Sometimes a submission is accompanied by the execution of promis- sory notes by both parties, and the delivery of them to the arbitrators with directions to indorse down such note to an amount which equals the sum found to be due to the opposite party, and then to deliver the note to him at the time of declaring off the award. In such cases each party executes a note equal in amount to the sum claimed by his an- tagonist, and the note is then so indorsed as to reduce the amount due upon it to the sum awarded by the arbitrators. A note thus made, and indorsed by the arbitrators, and then delivered to the party in whose favor the award is made, is k valid instrument, and an action may be maintained upon it. Shephard v. Watrous, 3 Gaines, 166 ; Battey v. Button^ 13 Johns. 187. And so a mere oral submission, unaccompanied by any writings whatever, is entirely valid, unless the dispute relates to a matter of real estate ; though it is always best to reduce such agree- ments to writing, so as to avoid those disputes which almost invariably grow out of mistakes honestly made, or arising from those fraudulent claims which an unscrupulous party can make. It is not necessary that there should be an express agreement to abide by an award made, the law will imply this, from the fact of submission itself. Valentine v. Valeniine, 2 Barb. Ch, 430, 437. Where, by the terms of arbitration bonds, the parties submitted all demands, this was held to include all questions concerning real as well as personal estate. Byers v. VanDeusen,^WGnA. 268 , Sellick v. Addawts, 15 Johns. 197. Such a submission includes a claim for a fraud in the sale of real estate. Be Long v. Stanton, 9 Johns. 38. A submission of " all the demands which either of the parties has against the other," is suiiicient to prevent either party from subse- quently maintaining an action for any demand which was in existence at the time of such submission, even though the party omitted, by mistake, to bring or present the claim to the arbitrators. Wheeler v. Van Houten, 12 Johns. 311; Owen v. Boerum, 23 Barb. 187; Fid- ler V. Cooper, 19 Wend. 285. But where it is shown that the subject of the action was not a matter in difference at the time of the sub- mission, and that the claim was not submitted to the arbitrators, the action will not be barred by the award made in pursuance of such submission. Bavee v. Farmer, 4 Term, 146 ; Golightly v. Jellicoe, id., note a. In the last case. Lord Mansfield said : " The only question is, whether a submission of all matters in difference is a submission of matters not hi difference /" and the court ordered judgment in favor of the plaintiff. And see Fidler v. Cooper, 19 Wend. 288. It must be remembered, however, that these remarks apply to those DEFENSES. 843 Arbitrament and award. — Form and construction of submission. cases only in which the siibmission does not, in terras or its legal scope, include the demand ; for, if the submission is broad enough to include it, parol evidence will not be admissible to show that the claim was not intended to be included or submitted. Wheeler v. Yan Houten, 12 Johns. 311 ; De Long v. Stanton, 9 id. 38. A submission to arbitrators of an action pending between the parties to the submission, and " of all ather actions or causes of action," and of " all other matters in controversy," is a general submission of all qiiestions and controversies between the parties. Jones v. Welwood, 9 Hun, 166 ; S. C, affirmed, 71 K Y. 208. In cases of doubt the presumption is in favor of an intention that all matters should be de- cided, lb. Where there is a general submission by partners, of all accounts, dealings, controversies, demands, etc., as well individually as partner- ship concerns and transactions, an award which gives the joint prop- erty to one of the partners, and directs him to pay a sum in gross to the other partner, and also to discharge and satisfy the debts owing by the firm, is valid, and will be supported, in the absence of any evi- dence showing that the arbitrators have decided matters not in dispute between the parties. Byers v. Van Deusen, 5 Wend. 268. A submission by several persons of all matters in difference between them imports a submission of all matters that either of them had against the othet, jointly or severally ; and, therefore, a submission by two parties on one side, and one on the other, includes not only the joint demands of the two, but also their individual demands against the opposite party; and if an award is made in pursuance of such submission, the award will be a bar to an action by one of the joint obligors against the other party. Fldler v. Gooj>er, 19 Wend. 285. But where there are several persons who make a special submission, the award will not be conclusive as to any thing but the matters sub- mitted ; and, therefore, where three partners submitted to arbitrators the power to determine upon what terms the partnership should be dis- solved, it was held that their award did not bar a right of action by one of the partners against the other two, on a note given by them to the other during the partnership, where there was no evidence that it was given for a partnership transaction, and where it was shown that such note was not presented to the arbitrators, or passed upon by them. Har- ris V. Wilson, 1 Wend. 511. Where several persons submit all claims and differences arising out of a mercantile partnership, for the purpose of obtaining a final settle- ment of all matters and differences between them, the award made will 844 DEFENSES. Arbitrament and award. — Revocation of submission. be sustained, although the arbitrators open an account which had been settled for twenty-three years, and notwithstanding objections were made thereto on the hearing. Emmet v. Hoyt, 11 Wend. 410. The submission in such a case is broad enough to include such an account; and it is discretionary with the arbitrators whether they will allow the account to be opened. lb. So a submission of the accounts between two parties, "and of the claims of each upon the other," embraces claims made by one of tho parties against the other for a wrongful dispossession of the former from certain demised premises, and for the wrongful conrersion of cer- tain personal property thereon, where such personal property might be regarded in either of two aspects — ■ first, as a claim for an account for the value of its proceeds ; or, second, as a charge for a tortious conver- sion. Owen V. Boerum,, 23 Barb. 187. Revocation. By the rules of the common law, either party might revoke his submission to arbitration at any time before the award was actually made. Allen v. Watson, 16 Johns. 205 ; Milne v. Gratrix, 1 East, 60S ; Green v. Fole, 6 Bing. 443 ; Warhurton v. Storr, 4 Barn. & Ores. 103 ; Marsh v. Packer, 20 Vt. 198; Curtis v. Barnes, 30 Barb. 225. But under the present statute a submission to arbitration, whether under the statute or otherwise, cannot be revoked by either party after the allegations and proofs of the parties have been closed, and the mat- ter finally submitted to the arbitrators for their decision. Code of Civil Proc, § 2383; ante 83G ; Blocnner v. Sherman, 5 Paige, 675 ; Banlc of Monroe v. Widner, 11 id. 529. A mutual agreement between the parties to submit their matters in difference to arbitration is a valid contract ; and the mutual promises form a sufficient legal consideration to sustain an action. Wood v. Tun- nicliff, 74 N. Y. 38 ; Yol. I, 202. If one of the parties revokes a sub- mission to an arbitration at common law or under the statute, any other party to the submission may maintain an action against him, and, also against his sureties if any, upon the submission or any instrument col- lateral thereto to recover his costs, expenses and damages ; and either of the arbitrators may recover, in an action against him, his reasonable fees and expenses. The extent of the recovery in such action has been regulated by statute. See Code of Civil Proc, §§ 2384, 2385; ante, 837. See, also, Curtis v. Barnes, 30 Barb. 225 ; Allen v. Watson, 16 Johns. 205. A revocation when allowed must be made by an instru- ment in writing, signed by the revoking party or his authorized agent, and delivered to the arbitrators or one of them. It is not necessary in DEFENSES. 845 Arbitrament and award. — Umpires. any case that the instrument of revocation should be nnder seal. Any party to the submission may thus revoke it, whether he is a sole party to the controversy, or one of two or more parties on the same side. Code of Civil Proc, § 2383. The revocation need not be expressed in any particular phraseology, or according to any given form. If the instrument shows clearly on its face that there is an intention to revoke the submission, that will be sufficient, even though the instrument does not declare, in tenns, that the submission is revoked. Freis v. Frets, 1 Cow. 335, 341. The effect of the death, or of the appointment of a committee of the person or property of a party to a submission, whether made under the statute or otherwise, is clearly stated in the statute quoted. See Code of Civil Pro., § 2382, ante, 836. The fact that one of the parties to a pending arbitration brings an action for the same subject-matter, does not revoke the submission. Knaus v. Jenhins, 11 Yroom (IST. J.), 288; S. C, 29 Am. Eep. 237. Umpires. The term umpire is sometimes applied to a single arbi- trator, chosen by the parties themselves, though this is not the usual signification of the word. Generally, an umpire is understood to be a person to whom is referred the final decision of a matter which has been submitted to arbitrators, in the event of their ultimate disagree- ment or failure to decide the matters submitted to them. Sometimes the umpire is named in the submission ; but, more generally, the sub- mission merely provides that he shall be appointed by the arbitrators. It has been held that there is a wide difference between the power and authority of an umpire and the power and authority of a person acting with others as an arbitrator ; that where an umpire has been duly appointed, and in consequence of a disagreement of the arbitra- tors, he has entered upon the performance of his duties, the authority to make a final decision on all the matters embraced in the submission is vested exclusively in him ; that thereupon the original powers of the arbitrators cease to exist ; that he is not bound to consult with them at all ; that it is only his act or decision that has or can have any val- idity ; and that if the arbitrators join in the award, they do so, not in the exercise of any remaining power, but as mere strangers, whose sig- natures, although they may not vitiate the award, are superfluous and unmeaning. But that when two arbitrators, unable to agree, exercise a power given by the submission by appointing a third, the authority to make an award is vested in them jointly ; and even when an award made only by two of them is good, it must be shown to be the result of their joint deliberations. Lyon v. Blossom, 4 Duer, 318. And 846 DEFENSES. Arbitrament and award. — Hearing, and proceedings thereon. see Day v. Hammond, 57 N. Y. 479, 484; S. C, 15i Am. Kep. 527; HawenY. Winnisimmet Co., 11 Allen, 377; Bassett v. Cwnningham, 9 Gratt.(Ya.) 684; Butterton v. Adams, 13 La. Ann. 334. But the Code of Civil Procedure has modified this rule somewhat by requiring the umpire as well as an additional arbitrator to sit with the original arbitrators upon the hearing. Code of Civil Pro., § 2367. Upon a submission imder the statute, an additional arbitrator or an umpire cannot be selected or appointed unless the submiission expressly so provides. And when a submission under the statute or otherwise provides that two or more arbitrators designated therein may select or appoint an additional arbitrator or an umpire, the selection or appoint- ment must be in writing. lb. Before this statute, the appointment of an umpire in a common-law arbitration might be by parol where the submission was by parol. Elm^ndorfY. Harris, 5 Wend. 516; S. C, 23 id. 628. But it was held that when the submission is in writing, and it is provided that the submission shall be made a rule of court, the umpire cannot be appointed by parol ; though, if the umpire who is ap- pointed by parol sits with the arbitrators, and they all hear the evi- dence together, and all unite in making the award, this will be sufficient evidence of the appointment, unless the submission requires the appoint- ment of an umpire previous to entering upon the hearing. lb. When the submission provides that if the arbitrators do not make an award within a limited time, the umpire shall then act, this is sufficient to authorize the umpire to act after the expiration of the time limited, although the arbitrators omitted to act within that time, and therefore there could not be a disagreement between them. In such a case the authority of the umpire to act is founded upon the omission of the ar- bitrators to make their award within the time limited. McKinstry v. Solomons, 2 Johns. 57, 60 ; S. C, 13 id. 27. Hearing, and proceedings thereon. It is a fundamental rule in every proceeding or transaction in the nature of a judicial hearing or trial, that the parties shall have an opportunity of being heard by giving evidence and by the arguments of counsel. And if arbitrators proceed to make an award without giving the party against whom the award is made, any notice of the proceedings on the hearing under the submis- sion, such award will be void, and no action can be maintained upon it. Mmendorf \. Harris, 23 Wend. 628, 632; Peters y. NewkirTe, 6 Cow. 103. Notice of the time and place of hearng is essential to the validity of any award, unless the parties expressly and clearly agree to waive such DEFENSES. 847 Arbitrament and award. — Hearing, and proceedings thereon. notice, or unless such waiver is clearly to be implied from the submis- sion, lb. ; Collins v. YanderhiU, 8 Bosw. 313. An award is entirely void if made without the appointment of a time and place for the hearing of the parties, and without notice to them, and an opportunity for them to be present with their witnesses, and of being heard before the arbitrators. Jordan v. Hyatt, 3 Barb. 275, 283, 284. See Day v. Hammond, 57 N. Y. 479. There is no legal rule declaring what is a sufficient notice of hearing, and that matter is left to the sound discretion of the arbitrators. Elmen- dorf V. Harris, 23 Wend. 628. But such discretion must be so exer- cised as to accomplish the object in view, which is a full and fair hear- ing of all parties. In all arbitrations, the arbitrators must take the oath prescribed by the statute, unless the oath is waived by the written consent of tlie par- ties or their attorneys. Code of Civil Pro., § 2369; ante, S33. See Day v. Hammond, 57 K Y. 479 ; S. C, 15, Am. Kep. 522. Under the Eevised Statutes it was held that the failure to take the statutory oath did not render the award a nullity ; but was an irregularity, which might be waived ; and if there was no waiver the objection might be taken by motion to set aside the award, or in an action on the award by an an- swer setting up the irregularity. Day v. Hammond, 57 N. Y. 479. See Howard v. Sexton, 1 Denio, 440 ; S. C, 4 IST. Y. 157 ; JTelsey v. Darrow, 22 Hun, 125. In the last case cited it was held that proceed- ing to trial before the arbitrators with full knowledge that no oath had been taken by them, and without request to have them sworn, was a waiver of the oath. But it should be remembered that this decision was rendered before the statute defined the act which would constitute a waiver. The oath may be taken before a judge, clerk, deputy clerk, or special deputy clerk of a court, a notary public, mayor, justice of the peace, surrogate, special county judge, special surrogate, county clerk, deputy county clerk, special deputy county clerk, or commissioner of deeds within the district in which the officer is authorized to act. Code of Civil Pro., §§ 842, 2369. The oath of the arbitrators must be to the effect that they will faithfully and fairly hear and examine the matters in controversy, and make a just award according to the best of their understanding. Id., § 2369. In all cases of arbitration, whether under the statute or otherwise, the arbitrators, or a majority of them, may require any person to attend be- fore them as a witness, and for that purpose may issue a subpoena under their hands, requiring such person to attend, and also, in a proper case, to bring with him a book or paper. Id., §§ 854, 2370. The subpoena 848 DEFENSES. Arbitrament and award. — Hearing, and proceedings thereon. must be served by exhibiting the original to the witness, delivering to him a copy or a ticket containing its substance, and paying or tender- ing to him his legal fees for travehng to and returning from the place of hearing, and for one day's attendance. Id., §§ 862, 854. The witness must obey this subpoena. If he fails to do so, he may be brought before the arbitrators on a warrant issued to the sheriff of the county, com- manding him to apprehend the defaulting witness and bring him before the arbitrators. This warrant will be issued by any judge of a court of record or not of record upon proof by affidavit of the failure to attend. Id., § 855. If the witness on appearing before the arbi- trators in obedience to the subpoena or warrant refuses, without reason- able cause, to be examined, or to answer a legal and pertinent question, or to produce a book or paper which he was directed to bring by the terms of the subpoena, he may be committed to jail and confined there until he submits to do the act required, or is discharged according to law. The warrant of commitment may be issued by a judge of a court of record or not of record, upon proof of the facts by affidavit. Id., § 856. It must be directed to the sheriff of the county where the witness is, and must be executed by him in the same manner as a similar mandate issued by a court of record in an action. Id., § 858. It was formerly held that upon a common-law arbitration, the arbi- trators had no power to administer oaths to the witnesses. People v. Townsend, 5 How. 315 ; Cape v. Gilbert, 4 Denio, 347, 348. It would seem, however, that such power is clearly conferred by section 843 of the Code of Civil Procedure. Where a witness is once regularly sworn, that will be sufficient, even though he may be examined at several different times at different hear- ings ; and the rule is the same in case of an enlargement of the time for making the award, and a hearing after such extension of time. Bulloch V. Koon, 9 Cow. 30 ; S. C, 4 Wend. 531. So, too, witnesses may be examined without any oath whatever, if the witness is examined without any objection at the hearing on accoimt of the want of an oath. Biggs v. Hansell, 16 C. B. 562. And in such a case, the award will be as valid as though the witnesses had been regularly sworn. lb. The arbitrators must be careful to complete the proceedings on the hearing before the expiration of the time limited for making their award. A bond of submission provided that the award must be in writing, and be ready for delivery on the first day of January following, 1848. The time for the delivery was extended from time to time until the first day of June, 1850, when it was agreed that " the DEFENSES. 849 Arbitrament aad award, — Award, when to be made. time for the parties to close their arguments on the arbitration under the annexed bond is hereby extended to the twelfth day of June in- stant, and the time for the arbitrators to make and deliver their award on said bond is hereby extended to the first Monday of July next. At a meeting of the arbitrators on the seventh day of June, it was agreed, by the respective parties, that both parties should close their arguments on the fourteenth day of June. The counsel of one of the parties summed up on the fourteenth of June specified, and the arbi- trators then adjourned the hearing until the nineteenth of June, and then heard the counsel for the other party sum up, but against the ob- jection of the opposite party, made at the proper time, and it was held that the arbitrators had exceeded their powers, and that the award was void. Gole V. Blunt, 2 Bosw. 116. The agreement of the parties as to the time when the summing up should be completed, prescribed a limit to the powers of the arbitrators in that respect, and when they heard the argument on the nineteenth of June, they transcended their authority, and their award was void, however just it might be upon principle. lb. Where arbitrators hear the statements of witnesses, in the presence of one party, but in the absence of the other, who had no notice of the hearing or examination, the award will be invalid and void as to' the absent party. Knowlton v. 3£ickles, 29 Barb. 465 ; Walher v. Fro- hisher, 6 Yes. Jr. 70; Pepper y. Oorham, 4t: S . B.Moore, 148; Matson V. Trower, 1 R. & M. 17. For the purpose of invalidating the award, it is not necessary to show that the arbitrators acted corruptly, or that they intentionally violated their duty. lb. Award, when to be made. "Where no time is limited for making an award, the arbitrators may make it any time, and it will be valid. Nichols V. Rensselaer Co. Mut. Ins. Co., 22 Wend. 126. Where ar- bitration bonds limit the time within which the award must be made, there may be a valid enlargement or extension of the time by a written sealed agreement between the parties. Freeman v. Adams, 9 Johns. 115. And it has been held that, where there is a submission by mutual bonds, and a time specified in the bonds within which the award is to be made, there may still be a valid extension of the time by a written unsealed agreement between the parties. Bloomer v. Sherman, 5 Paige, 575. ■ So, too, it has been held that where there was an unau- thorized extension of the time for the hearing, and the parties after- ward voluntarily proceed with the hearing, by swearing witnesses or 107 850 DEFENSES. Arbitrament and award. — Award, by whom made. taking part in the proceedings, this will be a waiver of the objection. In re Hich, 8 Taunt. 694 ; Wood v. TtmnicUff, 74 N. Y- 38. But where the arbitrators enlarge or extend the time against the wishes and under the objection of the parties, or either of them, the award subsequently made will be void as to the objecting party. Cole V. Blunt, 2 Bosw. 116 ; Mason v. Wallis, 10 Bam. & Cres. 107. An award is in the nature of a judicial act, and, therefore, it will be void if made and published on Sunday. Story v. Elliot, 8 Cow. 27. But see Sargent v. Butts, 21 Vt. 99; Crosly v. BlancJiard, 50 id. 696. Award, by whom made. If the submission is made under the pro- visions of the statute, an award may be made by a majority of the arbitrators, unless the submission requires a concurrence of all the ar- bitrators. Ante, 833 ; Locke v. Filley, 14 Hun, 139. And where a cause is submitted, under the statute, to three arbitrators, who hear the proofs and arguments of the parties, and the cause is finally sub- mitted to them for decision, and they adjourn to a specified time for the purpose of making their award, the absence of one of the arbitra- tors at that time will not affect the right of the other two arbitrators to proceed and make a valid awa.rd. Schultz v. Ilalsey, 3 Sandf. 405. And it will not make any difference what caused the third arbitrator to remain away ; whether it was because he believed the submission re- voked, or because he dissented from the views of the majority of liis associates. lb. It is only in cases of submission under the statute, that a majority can make a valid award, in the absence of an agreement or stipulation between the parties permitting that to be done. Under a common- law submission to several persons, all of them must join in making the award, or it will be void, unless it is expressly provided in the submis- sion that a less number may make the award. Oreen v. Miller, 6 Johns. 39 ; Co^pe v. Gilbert, 4 Denio, 347. In the case last cited, there was a parol submission to three arbitrators. Two of them agreed on an award, but the third refused to join in it, and in action upon the award made by such majority, it was held void, for the reason that it was not valid under the provisions of the statute, because the submis- sion was not in writing ; nor good at common law, because only two concurred in the award. A written submission of matters in dispute was made to three arbitra- tors, with a provision that the award should be made in writing under the hands of the arbitrators, " or any two of them," and be ready for delivery by a specified day. Only two of the three arbitrators met and heard the proofs and allegations of the parties, although the third DEFENSES. 851 Arbitrament and award. — Award, by whom made. had due notice of the time and place of hearing, and appeared there, but declined to take any part in the proceedings. An award was after- ward made by the two arbitrators who heard the proofs and allegations, and in an action upon the award it was held that the hearing had not been conducted in accordance with the statute, and that as it had not been sanctioned by the defendant, the award was a nullity, and no ac- tion could be maintained upon it. Bulson v. Lohnes, 29 N. Y. 291. And see Loohe v. Filley, ll Hun, 139. "Where the submission provides that the decision of " a majority " of the arbitrators shall be binding, and the bond provides that the award shall be subscribed ''by the said arbitrators," the submission and the land will be construed together, and an award made by a majority of the arbitrators wiU be vaUd. Isaacs v. Beth HaTnedash Soc, 1 Hilt. 469. "Where two arbitrators are appointed, and clothed with power to select a third one, and the decision of a majority is to be binding, a de- cision by a majority of them will be valid, and an award made by them binding, notwithstanding the fact that the first two appointed agree with the third one that his decision shall be binding, provided that agreement is abandoned, and all of the arbitrators in good faith exer- cise their own judgment upon the matters submitted. Haffy. Blossom, 5 Bosw. 559. Under a common-law submission to two arbitrators, who were au- thorized to choose a third one in case of a disagreement between them, if such third arbitrator is chosen, an award made by any two of them will be valid, although the third one may dissent and refuse to sign the award. Batty v. Button, 13 Johns. 187. Such a mode of submission necessarily implies an authority to two to make the award. lb. The signing of an award is of itself an actual concurrence in it ; and an arbitrator who has signed an award cannot be permitted to contra- dict his act, and say he did not concur. Campbell v. Western, 3 Paige, 124r. It is no defense to an action upon an award made by three arbi- trators, to show that after the award was published one of the three dissented, if the case is one in which two might make a valid award. . Winship V. Jewett, 1 Barb. Oh. 173. But if arbitrators, who are ap- pointed by an arbitration bond, decline to act, and resign their author- ity, which is accepted by the parties, any award subsequently made by such arbitrators will be void ; and in an action upon such an award, parol evidence is admissible to show such resignation and acceptance tor the purpose of showing the invalidity of the award. Eelyea v. 852 DEFENSES. Arbitrament and award. — Requisites of an award. Ramsay, 2 "Wend. 602. And such facts constitute a bar to an action upon the award. lb. EeQ[uisites of an award. It is indispensable to the validity of an award that it conforms to the terms of the submission. And for that rea- son the award ought never to include any matters but those submitted by the parties for adjudication, for if it embraces matters not included in the submission, it will, as a general rule, invalidate the entire award. Hilly. Thorn, 2 Mod. 309 ; Doyley v. Burton, Ld. Eaym. 533 ; Bon- ner V. Liddell, 1 Brod. & B. 80 ; Culver v. Ashley, 17 Pick. 98 ; In re WilUams, 4 Denio, 194 ; Pratt v. Hackett, 6 Johns. 14 ; Hisoock V. Harris, U IST. Y. 108. If, however, the portion of the award which exceeds the submission can be separated from the rest without affecting the merits of the award, it may be rejected as surplusage, and the rest will stand ; other- wise the whole is void. MoBride v. Ragan, 1 Wend. 326 ; Martin V. Williams, 13 Johns. 264 ; Cox v. Jagger, 2 Cow. 638 ; Gomez v. Oarr, 6 Wend. 583 ; 9 id. 649. The award should not only be limited to the matters submitted, but it ought also to relate solely to the parties to the submission. And, therefore, an award does not bind or affect strangers to the submission ; and if an award requires a stranger to do any act, it will be void, not only as to him, but it will also be void as to the parties, if the unau- thorized part of the award cannot be severed from the rest. Philips V. KnighUey, 2 Strange, 903 ; Martin v. WilUams, 13 Johns. 264 ; Turner v. Swainson, 1 Mees. & Wels. 572. But an award directing one party and otliers to convey certain premises to the other, or that he alone should pay a certain sum in money, is not invalid as to the last part. Thornton v. Oarson, 7 Cranch, 596. An award that one party shall cause a stranger to do a certain act, as to deliver possession of land, is void. Martin v. Williams, 13 Johns. 264. So an award is void if it requires the party should make a payment of money, or do any similar act to a stranger. Bretton v. Prat, Cro. Eliz. 758 ; Adams v. Statham, 2 Lev. 235 ; In re Laing and Todd, 13 C. B. 276. But if the stranger is mentioned in the award as a mere agent of one of the parties, which he actually is, or as a trustee, or as in any way paying for, or receiving for one of the parties, this does not inval- idate the award. Bird Y. Bird, Salk. 74; Bedam\. Clerkson, Ld. Kaym. 123 ; SnooJe v. Eellyer, 2 Chit. 43. An award ought to be complete, and include and decide all the ques- tions or matters specified in the submission. And if an award does not embrace all the matters within the sixbmission which were brought DEFENSES. 853 Arbitrament and award.— Hequisites of award. to the notice of the arbitrators, it is altogether void. Houston v. Pol- lard^ 9 Mete. 164; Moore v. Oookroft, 4Daer, 133; Wright v. Wright, 5 Cow. 197; Jones v. Welwood, 11 N. Y. 208. But where a party objects to an award, on the ground that it does not embrace all of the matters submitted, it will be a good answer to the objection, to show that such party himself withheld the question from the arbitrators. Page v. J^oster, Y N. H. 392 ; Sifiith v. Johnson, 15 East, 213. If it does not appear that any thing was in dispute in regard to the claims, beside what is comprehended in the award, or if the award necessarily includes every such claim and decides upon it, it is enough; and it is no objection that the submission shows that the parties were at liberty to bring forward claims not specified. Jackson v. Ambler, 14 Johns. 96. And arbitrators are presumed to have acted upon all matters submitted to them, until the contrary is shown. Emery v. Ritchoock, 12 Wend, 156; Parsons^. Aldrich, 6 IST. H. 264. But see King V. Bowen, 8 Mees. & Wels. 625 ; Pierce v. Morrison, 6 Hun, 235. The presumptions and intendments of the law are in favor of the validity of awards, and they are upheld unless it affirmatively' appears, either upon the face of the award or by extrinsic evidence, that the arbitrators exceeded their authority or failed to exercise the power con- ferred or to determine the questions submitted to them. Awards are not treated as strictly as formerly, and they are interpreted in a fair and liberal spirit for the purpose of sustaining them, and if they are fairly susceptible of two interpretations, that one will be adopted which will render them valid. Hiscoch v. Harris, Y4 N. Y. 108. Mutuality. An award, to be mutual, need not be equal ; nor is it necessary that the same acts, in the same unqualified manner, should be awarded on each side, to render the award mutual ; if it puts a final end to the controversy and awards mutual releases, it is mutual. Mvnroey. Alaire, 2 Oaines, 320. And it is no objection to the award, that one party is required to perform on his part, before the other party is to execute a release, when other things are awarded to be done by the latter, independently of the release. lb. Where a guardian submits a claim, made by his ward, to arbitration, and an award is made thereon, such award is a compliance with the rule as to mutual- ity, and bars the infant's action upon the original cause of action. Weed V. Ellis, 3 Caines, 253. So, an award which orders the payment of a sum of money, for an alleged trespass, carries on its face the evidence of mutuality, because the award will be held to be a satisfaction of the matters submitted. Pv/rdy v. Delavan, 1 Caines, 304. So, where a submission of a partnership matter to arbitration is 854 DEFENSES. Arbitrament and award. — Requisites of award. executed by one of three partners, in the name of the firm, with the assent of another partner, but without the knowledge or approval of the third, the award, although invalid, as to the firm, is binding upon the partner executing the submission, and upon the one assenting to it. Harrington v. Higham, 15 Barb. 524. The award is also valid, as to the opposite party to the submission; and there is, therefore, no want of mutuality or consideration in the agreement of submis- sion, notwithstanding the members of the firm are not all bound by it. lb. So, where the submission recited that there were certain infants who were not bound by the submission, and one of the adult parties covenanted that the infants should abide by the award and perform it, it was held that there was sufficient mutuality, and that though the submission was unauthorized as to the infants, yet the award was binding upon the adults. STnith v. Yan Nostrand, 5 Hill, 419. Reasonable. Every award ought to be reasonable; and if it di- rects or awards things which in themselves are of no value or advan- tage to the parties, or which are out of aU proportion to justice and the requirements of the case, or if it undertakes to determine for the parties what they ought to determine for themselves, as, where it re- quires that the parties should intermarry, it will be void. But, since the parties have made choice of their own judge in the matter, the courts will require a strong case of unreasonableness to be made out, before they will interfere and set aside the award. Wood v. Griffith, 1 Swanst. 43 ; Brown v. Brown, 1 Yern. 157 ; Waller v. King, 9 Mod. 63 ; Hardy v. Innes, 6 J. B. Moore, 574. And an award will not be set aside as unreasonable, merely because it lays a burden upon one of the parties, and does not require any thing of the other. Knality. An award ought to be final and conclusive. Hiscoch v. Harris, 74 N. T. 108. And the reason is evident, from the fact that the law favors the settlement of disputes instead of litigation, and an arbitration is a mere amicable adjustment through the intervention of arbitrators, although the matter assumes the form of a trial, in so far as the parties introduce evidence for the purpose of sustaining their claims, or of meeting those of the opposite party. But, if an arbitra- tion were to be regarded as a litigation, the rule would still be the same, since the law does not encourage litigation. Where a submission relates to a pending action, an award that the defendant shall pay a specified sum to the plaintiff, and that each party shall settle with his own witnesses, is final, and payment is a discharge of such demand. Weed v. JEllis, 3 Caines, 253. DEFENSES. 8r)5 Arbitrament and award. — Requisites of award. An award which directs the payment of a specific sum, by one party to the other, is iinal and sufficient, without requiring any release to be given. Solomons v. McKinsiry, 13 Johns. 27; S. C, 2 id. 57. And where the award required one party to pay to the other a certain sum, with Interest until paid, " as the plaintiff appeared to have a just claim on the defendant for that sum, or even more, if insisted on ;" and " that should any errors in addition or calculation of interest be found in the account, upon proof thereof being made by the defend- ant to the plaintiff, the plaintiff should immediately refund to the de- fendant the amount thereof," it was held that the award was final and vahd. lb. If an award requires the payment of a specific sum by one party to an- other, it will be valid and final, although it does not direct that releases shall be executed. Byers v. Yan Deusen, 6 Wend. 268. But it is essential to the validity of an award, that it should make a final dispo- sition of the matters embraced in the submission, so that they shall not become the subject or the occasion of future litigation ; and, there- fore, an award will be void where it directs the payment of a certain sum, after deducting what has been paid, without furnishing the means of determining the amount which has been paid. Waite v. Barry, 12 "Wend. 377. An award which leaves nothing to be done in disposing of the whole matter in controversy, except mere ministerial acts, such as the selection of articles equally good to supply any loss which might accrue in certain specified things, is final and valid. Owen V. Boerum, 23 Barb. 187. Upon a submission of ' ' all matters in difference between the par- ties," an award directing the discontinuance of certain actions between the parties, and that each party should pay his own costs, is valid and final. Blanchard v. LiUey, 9 East, 497. So of an award in a similar case, that all suits then pending between the parties should cease. Squire v. Grevell, 6 Mod. 33 ; Ld. Eaym. 961 ; Salk. 74. Or that a chancery suit should be dismissed. Knight v. Burton, 6 Mod. 232 ; Salk. 75. Certainty. An award ought always to be certain in the sense that it is so expressed, that no reasonable doubt can be entertained as to the meaning of the arbitrators, the effect of the award, or the rights and duties of the parties under it. The object of a submission, and the policy of the law in favoring arbitrations, is to reach a final set- tlement of disputes, and if the decision were not certain as well as final, the object of the law would not be accomplished. Hence, an award which is vague and uncertain is void, and will be set aside. 856 DEFENSES. Arbitrament and award. — Requisites of award. Jones V. Welwood, 71 N. Y. 208 ; Fallon v. Kelehar, 16 Hun, 266 ; Hiscock V. Harris, 74 N. Y. 108. But the law does not require an unreasonable or an impracticable degree of certainty, and the general rule is, that certainty to a common intent is sufficient. lb.; Purdy v. Delavan, 1 Gaines, 304 ; Jackson v. Anibler, 14 Johns. 96. And yet the terms of an award ought to be so clear and intelligible, that every one who reads it may comprehend it. Gratz v. Gratz, 4 Eawle, 411. An award must be so plainly expressed as to leave no uncertainty as to how it is to be executed. Each party ought not only to know what he is required to do, but he ought also to know what he may compel the other party to perform. And, although liberally construed, the award must be certain to a common intent. Sohuyler v. Yan Der Veer, 2 Gaines, 235. And where an award directed that the parties should " finish the house " between them, without specifying what house, and that if Y., one of the parties, kept " the stove," without saying what stove, it was held that the award was void for uncertainty. lb. So, where an award declared that one of the parties should deliver to the other " his right and claim of the said farm," but no farm had been mentioned in the submission or any previous part of the award, it was held void for uncertainty. Brown v. Hankerson, 3 Cow. 70. Where an award directs the payment of a sum of money, and re- quires the party to give "good and sufficient security for the payment," but does not define the nature of the security, nor declare whether it is to consist of real or personal security, nor to what extent, it will be void so far as it relates to the security. Jackson v. De Jjong, 9 Johns. 43. So of an award which directs one party to give a bond to the other, but without specifymg in what sum, Samon's case, 5 Rep. 77 ; Bacon v. Duharry, 1 Ld. Eaym. 246 ; or that one party should pay five pounds, and, other small things, Budston v Yates, Marsh. 144 ; or as much as should be due in conscience, Watson v. Watson, Styles, 2S ; or as much as certain land should be worth, Titus v Perkins, Skinner, 248 ; or as much as a quarter of malt should be worth, Hurst V. Bambridge, 1 EoU. Abr., tit. Arb. Q., pi. 7 ; that one party should give up a certain obligation, dated of a given date, but not otherwise iden- tifying it, Sheppard v. Stites, 2 Halst. 90 ; or to give up " several books." Cookson v. Ogle, 1 Lutw. 550. The foregoing cases show sufficiently what will not be sufficient cer- tainty. And* a few cases illustrative of the certainty which is sufficient, will now be noticed. If an award orders some extrinsic thing to be done, which may be certain, it wUl be intended to be certain until the contrary appears DEFENSES. 857 Arbitrament and award.— Requisites of award. and where the submission relates to partnership concerns, an award di- recting one party to pay the partnership debts is sufficiently certain. Case V. Ferns, 2 Hill, Y5. Where parties entered into an indenture reciting partnership transactions between them, and agreeing that one of them should assign their common property to the other, and that their accounts should be settled and the balance due between them paid ; and for the purpose of settling the partnership concern, and all demands between them, they appointed arbitrators, who awarded " that the said H. pay to the said E. $272.80, with interest, accord- ing to the principles of the within bond," the award was held to be sufficiently certain. Emery v. HitohGock, 12 "Wend., 156. And see Dunn V. Warlters, 9 Mees. & Wels. 293 ; Grey v. Owenna/p, 1 Bam. & Aid. 106. An award, like a deed, may be made certain by reference to extrin- sic circumstances ; and where an award referred to extrinsic circum- stances which were certain, it was held to be sufficiently certain. JacJcson v. ArribLer, 14 Johns. 96, 109, 111. So an award will be sufficiently certain for the piirpose of an adjust- ment of a loss on a policy, if data are given from which, by calculation, it can be rendered certain. Lvdlow v. Orosart, 3 Johns. Oas. 534. And where the time of payment is settled by the submission, the award will be sufficiently certain if it merely fixes the amount. OomeB V. Oarr, 6 "Wend. 583. So where one party claimed damages of another for injuries sustained by the overflowing of water by reason of a dam, and the matter was submitted to arbitrators, who made ati award showing a legal liability on the part of the person against whom the claim was made, and the award determined the amount to be paid, but did not, in words, direct payment of the amount to the injured party, it was held that the award was sufficiently certain and final, and that it was valid. Jones v. Ouyler, 16 Barb. 576. So under a general submission by partners, of all accounts, dealings, controversies, demands, etc., as well individually as partnership transactions and concerns, an award that one of the parties shall have a certain brewery jointly owned by the partners, near a specified place, is sufficiently certain although it was not mentioned in terms in the submission. Byers v. Van Deitsen, 5 AVend. 268. So an award on a question of boundary is sufficiently certain if it fixes the line, and shows enough to enable either party to determine whether his possession corresponds. Bacon V. WUber, 1 Cow. 117. An award which fixes the payment of a sum certain will not be held to be uncertain merely because it does not fix the time of payment, 108 858 DEFENSES. Arbitrament and award. — Requisites of award. for the law will adjudge it to he payable immediately, or within a reasonable time. Freeman v. Basjpoule, 2 Brownl.,309; Imla/y v. Wihoff, 1 South. 132 ; Blood v. SUne, 2 Fla. 127. Awards usually direct the performance of certain things, absolutely, and yet an award in the alternative is valid. And, if it directs one of two things to be done in the alternative, and either of the two is un- certain or impossible, it is incumbent on the party to perform the other of them. Simmonds v. Swaine, 1 Taunt. 549; Wharton v, Kmg, 2 Barn. & Ad. 528. When an award furnishes a substantial basis, by and through which* the parties can, by calculation or otherwise, work out the contemplated result, in accordance with the principles settled by, and the rights of the parties declared in the award, it will be regarded as suflBcient. Backus V. Fobes, 20 N. Y. 204 ; Locke v. Filley, 14 Hun, 139. And see Hiscock v. Harris, 74 N. Y. 108, 114. And it may be stated as a general rule, that if the award is sufficiently definite to be obligatory as a contract, it is sufficiently definite to be upheld as an award. Bush V. Davis, 34 Mich. 190 ; Cargey v. Aitcheson, 2 Bam. & Or. 170 ; Perkins v. Giles, 50 JST. Y. 228. Possible. The law does not attempt to enforce impossible contracts, nor does it give damages for their non-performance. Ante, 722. And the same principle is equally applicable to awards. For that reason, an award must always be possible. And an award which directs or re- quires an impossible thing to be done, is void. The impossibility, however, must be one which relates to the nature of the thins: to be done, and not that of a mere disability of the party at the time of the performance. An award, directing money to be paid on a day which is already past, or to give up a deed which the party never had, and never expects to have, is void. But an award, which directs the pay- ment of money, will not be invalid because the party has no money to pay with, at the time fixed for its payment ; because the award creates a valid debt against him, even though he may not be able to pay it at present. And a party cannot avoid an award, on the ground of impos- sibility, when such impossibility was created by himself, after the award was made, or, if it was done before that time, for the purpose of evad- ing an expected award. Com. Dig., tit. Arb. E. 12. The impossibil- ity may be actual, or it may be that created bylaw; for an award which requires that a party should do what the law forbids him to do, is void, either in the whole, or for so much as is thus against the law, if that can be severed from the rest. Turner v. Swainson, 1 Mees. & Wels. 572 ; Alder v. Savill, 5 Taunt. 454 ; Harris v. Curnow, 2 Chitty, 594. DEFENSES. 859 Arbitrament and award. — 'Form and execution of an award. Form and execution of an award. The common law does not re- quire that an award shall be in any particular form. If the submission is a verbal one, and it is not required that the award shall be in writing, a verbal award is valid. Valentine v. Valentine, 2 Barb. Ch. 430. And where the submission is in writing, and it requires the award to be in writing and to be subscribed by the arbitrators, there may be a valid waiver of such requirement. An award need not be under seal, unless the submission requires it ; and the mere fact, that the submission is under seal, does not, of itself, make it necessary that the award should be sealed. Owen v. Boerum, 23 Barb. 187. But where the bond of submission provides that the award shall be in writing, under the hands and seals of the arbitrators, an award under their hands, but without seals, is bad. Stanton v. Henry, 11 Johns. 133. Although notice of hearing is necessary, the award need not show on its face that the parties had notice of the hearing. Mayor, etc., of N. Y. V. Butler, 1 Barb. 325. So, where an award is made by two of three arbitrators, under a submission authorizing an award by a ma- jority, it is not necessary that the award should show on its face that all met and heard the arbitration, but this may be shown by extrinsic evi- dence. AcMey v. Finch, 7 Cow. 290 ; Shultz v. Ralsey, 3 Sandf . 405. Words written in the margin of an award, by the arbitrators in a dis- tinct sentence, and before the execution of the instrument, are to be considered as a part of the award, and the words are to receive the same construction as though inserted in the body of it. Piatt v. Smith, 14 Johns. 368. But where an award has once been completed and signed by the arbitrators, any memorandum in the way of an additional award will be invalid and no part of the original award ; and a written agree- ment of the parties adopting the memorandum will not make it a part of the award, but a mere additional agreement. Moore v. Cochcroft, 4 Duer, 133, 140. Separate awards are valid, even though there were not separate submissions ; but the awards will all be construed as one instrument, for the purpose of giving construction to the separate parts. Ott V. Schroeppel, 5 N. T. 482 ; reversing S. C, 7 Barb. 431. And see 3 id. 60 ; 4 id. 250. When the arbitrators have completed and delivered their award, tlieir power is exhausted, and a subsequent award will be entirely void. Dohe V. James, 4 N". Y. 568. A superfluous or unnecessary signa- ture of a person, who need not have signed the award, will not vitiate it, if it is otherwise valid. Ott v. Schroeppel, 4 Barb. 250 ; S. C, 5 N. T. 482 ; Mayor, etc., of N. Y. v. Butler, 1 Barb. 325. 860 DEFENSES. Arbitrament and award. — Delivery of award. Delivery of award. Where submission fixes a time for the delivery of an award, the arbitrators must complete it and have it ready for de- livery to the parties at that time, or it will be void, unless there has been a valid extension of the time for such delivery. Where the terms of the submission were that the award must be ready for delivery to the parties by a specified time, it must be ready for delivery to both parties at that time ; and if it is not, the award is void. Pratt v. Hachett, 6 Johns. 14. It is of no consequence that the award was ready for delivery to one of the parties, if it was not ready for both. lb. But this is no longer true of an award in an arbitration under the statute. Code of Civil Pro., § 2372. Ante, 834. Where a submission provided that an award should be ready for de- livery on or before a specified day, as either of the parties should desire the same ; and there was no proof that either party desired the award before -the day of its date, or that any demand was made for it upon the arbitrators on the day named for delivery, but it was proved that it was ready for the parties, and delivered when it was called for, it was held that the mere fact, that the award was dated after the time for its delivery, was not sufficient evidence to show that it was not ready for dehvery on the proper day. Owen v. Boerum, 23 Barb. 187, 196. In the absence of proof, the presumption will be, that the arbitrators performed their duty, and that the award was ready at the time fixed. lb. A submission which fixes a time for the delivery of an award by a specified day will be complied with, if the arbitrators have the award ready for delivery at the appointed time, but refuse to deliver it to the parties until their fees are paid. Ott v. Schroejopel, 3 Barb. 56. The time for making an award under a sealed submission may be extended by parol. Wood v. Tunnidiff, 74 N. Y. 38. Where arbitration bonds require the award to be in writing, ready for delivery to the parties on or before a given day, and the arbitrators make an award and deliver it to the prevailing party, but they do not make any counterpart for the opposite party, nor deliver any to him the award will be a nullity, unless such party in some manner waives his rights. Buch v. Wadsworth, 1 Hill, 321. The only mode of making a binding award under such bonds is for the arbitrators to execute two parts, so that each party shall liave one unless that method is in some manner expressly waived. lb. A notice by one of the parties to the arbitrators that they need not make a counterpart, as he will not receive it, will be a waiver. lb. So the ac- .ceptance of a sworn copy, instead of the original, will also be a waiver. DEFENSES. 861 Arbitrament and award. — Constructiou of award. lb.; Selick v. Addams, 15 Johns. 197. See, also, Oridleyy. Gridley, 65 N. Y. 169. So, where it appeared that, before the day fixed by the submission for the delivery of the award, the award was duly executed, and produced to the parties, and twice read, over to the defendant, who appeared satisfied with it, and promised to perform it, and also made a part payment upon it, but did not acquire the award or a copy of it, this was held to be a waiver by the defendant of the right to subse- quently demand a delivery of a duplicate or a copy of the award. PerhinsY. Wing, 10 Johns. 143. Where the matter submitted to arbitrators is to fix the value of work and services done by one party to the other, it will be sufficient to de- liver an award fixing such an amount, and it is not necessary to deliver a statement of the items taken into account by the arbitrators. Efner v, Shaw, 2 "Wend. 567. Construction. As a general rule of construction, awards are favored by the law, and they are enforced when this can justly and legally be done. It will be sufficient if the intention of the arbitrators can be as- certained from the award with reasonable certainty ; and if the intention of the award is not open to any legal objection, a very liberal construc- tion will be allowed either as to matters of form or of expression. The court will incline to that view which will render the award valid, instead of that which would declare it void; and it will be lib- erally construed, for the purpose of upholding it. Jaokson v. ATmhle-r, 14 Johns. 96, 103. Hiscooh v. Harris, 74 N. T. 108. If the words of an award are so comprehensive that they may include matters not within the submission, it will still be presumed that nothing was awarded beyond the authority conferred unless the contrary be ex- pressly shown. Solomon v. MoKinsi/ry, 13 Johns. 27 ; S. C, 2 id. 57 ; Alder v. Savill, 5 Taunt. 454. So if the words of the award are less comprehensive than those of the submission, it will be construed that what was omitted was not controverted, unless the contrary be also shown. Knight v. Burton, 6 Mod. 231 ; Middleton v. Weeks, Cro. Jac. 200 ; Vanvivee v. Yanmivee, Cro. Eliz. 177; Roberts v. Marriett, 3 Saund. 188. A misrecital does not, vitiate an award. And where the submission was special, of one matter only, but the award recited a general sub- mission of all matters, and though it directed payment of a sum of money in f uU of all differences expressed in the condition of the arbi- tration bond, it was held that the award was valid. Diblee v. Best, 11 Johns. 103. A variance is equally miiraportant. And where the sub- 862 DEFENSES. Arbitrament and award. — Action for breach of submission. luission stated that the controversy was on a contract dated March 20, and the award related to a contract dated Marcli 21, it was held that the award was valid, and the variance no injury, especially when there was no pretense that there was more than one contract or one con- troversy, between the parties. Schultz v. Halsey, 3 Sandf. 406. Where there is a contradiction in the wording of an award, so that the first and the last parts of the award are irreconcilable, the words in the latter part of the instrument will be rejected, and those of the first part prevail, especially where the former part is a final award, and the latter clause a mere conditional provision. Cox v. Jogger, 2 Cow. 638. If an award is bad in part and good in part, it will be wholly void, if the parts are so dependent that they cannot be separated. Sohuyler v. Van Der Veer, 2 Gaines, 235. So where an award is void in one par- ticular only, but that relates to the only act which one of the parties is to do, and it is the consideration intended for the act required on the other side, the whole is void. Brown v. HanTcerson, 3 Cow. TO. But where a part of an award is void, if it is not so connected with the rest of it as to affect the justice of the case, and the valid part may be separated, the award will be void so far only as the void part is con- cerned, lb.; Martin v. Williams, 13 Johns. 264 ; Jackson v. Ambler, 14 id. 96 ; Cox v. Jogger, 2 Cow. 638 ; Harrington v. Higmon, 15 Barb. 524. Action for breacli of submission. An action will not lie on the penalty of an arbitration bond, for the non-performance of an award, when the award was not made within the time specified in the bond, even though the parties, by an agreement under their hands and seals, indorsed upon the bond, had enlarged the time, and the award was made within such enlarged time. Freeman v. Adams, 9 Johns. 115 ; Myers v. Dixon, 2 Hall, 456. The proper remedy is on the submis- sion implied in the agreement to enlarge the time. lb. And the bond, the agreement to extend the time, the making of the award, and a breach of its requirements, may all be set out in the same complaint, and will constitute a valid cause of action. lb. "Where matters have been mutually and properly submitted to ar- bitrators under legal arbitration bonds, and one of the parties revokes the submission after the hearing has been commenced, but before the award has been made, and he then commences an action against the other party to the submission to recover the claims thus submitted, the defendant may set up as a counter-claim the damages which he has sustained by reason of the revocation. Curtis v. Barnes, 30 Barb. DEFENSES. 863 Arbitrament and award. — Fending actions. 226. Such claim would not be a matter of recoupment, but a counter- claim, of wbich a justices' court can now take cognizance. Ante, 768. If the action is brought in a justice's court, the defendant is not obliged to set forth his damages by way of counterclaim at the peril of losing his demand, as such damages are, from the nature of the case, necessarily unliquidated, and he may still have his remedy by bringing a cross action for the recovery of his damages. And, in such an action, the measure of damages is not the amount of the pen- alty of the bond, but merely the actual damages sustained, which will include witnesses' fees, and such other reasonable expenses as were in- curred in and about the prosecution of the arbitration. Allen v. Wat- son, 16 Johns. 205 ; Curtis v. Barnes, 30 Barb. 225 ; and see Cope v- Gilbert, 4 Denio, 347; Code of Civil Pro., §§ 2384, 2385. In fact a literal reading of the sections of the Code last cited would prohibit a party from setting up his damages by way of counter-claim, and compel him to seek his remedy by way of an independent action against the party revoking the submission. Where there lias been a submission of matters to arbitrators, under a contract which provided that the matters should be settled by impar- tial appraisers, and in pursuance thereof an award is made which is void, this will render the arbitrators incompetent to act further in the matter; and if one of the parties, then requests the other to submit the matter to new arbitrators, which is refused by the other party, the party so making such request may lawfully sue at law for the recovery of his demand. Mayor of N. Y. v. Butler, 1 Barb. 326. And the party sued cannot insist upon the agreement to arbitrate as a bar to the action, or a non-performance of a condition precedent, when he himself has caused the non-performance. lb. Pending actions. It is a rule of very extensive influence that a submission to arbitration of matters involved in a pending action will operate as a discontinuance of such action. And the mere submission of the cause to arbitrators is a discontinuance of it, although the arbi- trators never take or consent to take upon themselves the burden of the submission. Larhim, v. MoUbins, 2 Wend. 505 ; Camp v. Soot, 18 Johns. 22. And see Wells v. Lain, 1 5 Wend. 101 ; Baldwin, v. Bar- rett, 6 Sup. Ct. (T. & C.) 362 ; S. C, 4 Hun, 119. The effect will be the same even if the submission is void. Keep v. Keep, 17 Hun, 152. A submission to arbitrators of the matters and controversies involved in a partition action, is a discontinuance of such action. Jordan v. EyaU, 3 Barb. 275. The mere submission to arbitration, of a matter pending in a suit in 864 DEFENSES. Arbitrament and award. — Pending actions. a court of record, when it is not followed by an award, is not pleadable in bar, but at most, only operates as a discontinuance. Smith y. JBarse, 2 Hill, 387. And, in such a case, if the plaintiff attempts to proceed in the action after such submission, the defendant's remedy is by motion to the court, and not by answer. lb. But, in a justice's court, if a cause is submitted to arbitration after issue joined, the defendant may set that up in his answer in abatement by way of answer puis darrien continuance, which will be sufficient to defeat the action. Ressequie V. Brownson, 4 Barb, 541. If such an answer is overruled and disre- garded, on the ground that it cannot properly be interposed in a justice's court, the decision will be erroneous. lb. And if such answer is disregarded after a proper offer of it, the defendant will not waive his right to insist that the action was discontinued by the arbitration, even though he should appear at the trial and examine witnesses. lb. But, although a submission to arbitration is a discontinuance of a pend- ing action, the defendant may waive that matter as a defense to the action ; and if, after such submission, he voluntarily proceeds in the defense of the action, by appearing at the trial and defending it by cross-examining the plaintiffs witnesses and addressing the jury, with- out objecting either by motion or answer, he will be held to have waived the defense. People v. Onondaga C. P., 1 "Wend. 314. An oral submission of the subject matter of a pending action is valid and operates as a discontinuance, even when the action is pending in a court of record. Wells v. Lain, 15 Wend. 99. It is not a proceeding in a cause under the rule of the court, which requires written stipula- tions in relation to proceedings in an action. lb. "Where an appeal is pending in a county court from a judgment ren- dered by a justice of the peace, a submission to arbitrators, which provides " that the appeal " is discontinued, operates to discontinue the appeal ; but if the arbitrators do not make any award, the judgment rendered by the justice will remain in- full force. Miller v. Yan AnJcen, 1 Wend. 516. But where an appeal had been taken from a justice's judgment to the county court, and the parties afterward agreed to arbitrate the subject matter of the action, and the submission contained a clause providing that " all further proceedings in said suit at law are to be hereby stayed and ended, and the award or determination of the said arbitrators in the said matter is to be final," and the arbitrators finally failed to make any award, it was held that the submission not only put an end to the appeal, but extinguished the right to sue upon the jus- tice' s judgment. Ycm SlAjke v. Lettiee, 6 HiU, 610. Such a submission, DEFENSES. 865 Arbitrament and award. — Effect of an award. by bonds of arbitration, will be lield to blot out and end the suit at law, from its commencement before the justice to its termination in the county court, by the substituted arrangement to arbitrate. lb. ; and see Grosvenor v. Hunt, 11 How. 355 ; Baldwin v. Barrett, 6 Sup. Ct. (T. & C.) 362 ; S. C, 4 Hun, 119. The fact that an action has been discontinued by the submission to arbitration, so that no costs can there- after be recovered therein, does not prevent the arbitrators from allowing the amount of such costs to the party in whose favor their award is made. Boughton v. Seamans, 9 Hun, 392. Eifect of an award. After a fair and legal submission and award, the parties are precluded from litigating on the original matters sub- mitted, unless there has been corrupt or improper conduct on the part of the arbitrators. Shephard v. Watrous, 3 Caines, 166. A valid award merges the original cause of action, and bars an action thereon. Coleman v. Wade, 6 N. T. 44. Where there is a submission between a creditor and the principal debtor, in relation to a lease, and an award is made which extends the- time for payment by the debtor beyond that fixed in the lease, • such award will discharge the sureties, for the performance of the lease. lb. After a proper submission of a matter to an arbitrator, and a valid award by him thereon, such award is a bar to any action upon the mat- ter so submitted, even though the award has not been performed. Brazill v. Isham, 12 ]^. T. 9 ; S. C, 1 E. D. Smith, 437. Where there is a submission of all matters in difference between parties, and a legal award thereon, such award will have a more exten- sive influence in extinguishiug claims or demands between the parties than a verdict would upon any complaint, however broadly it may be drawn. An award settles and quiets forever all questions and mat- ters fairly withui the meaning and intention of the submission ; and this is so, even though the arbitrators neglected to pass upon some of the matters submitted to them. Such would be the effect of a judg- ment, and there is no difference in that respect between an award and a judgment. Lowenstein v. Mcintosh, 37 Barb. 251. It was agreed between two partners and a creditor of the firm, that • it should be submitted to arbitrators to divide and appropriate the assets for the payment of debts as they deemed fit, and that they should also determine which of the partners should pay the creditor, and that the other should be discharged ; and it was held, that such submission con- stituted a sufficient consideration for the creditor's agreement, and that an award discharging one of the partners was a bar to an action against him by such creditor. Backus v. Fdbes, 20 K T. 204. 109 866 DEFENSES. Arbitrament and award. — Impeaching awards. An award is conclusive as to any matter to wliich the submission ex- tends, wiiether it was laid before the arbitrators or not. Fidler V. Cooper^ 19 Wend. 285 ; Lov)enstein v. Mcintosh, 37 Barb. 251 ; Smith T. Van Nostrand, 6 Hill, 419. See Jones v. Welwood, 71 ]Sr. Y. 208. Where a defendant wishes to insist upon the defense that the matter in litigation has been determined by a previous arbitration and award, he must set up the defense in his answer or it will not be available. Brazill V. Isham, 12 N. Y. 9. And this is the rule, even though the fact, that there was an award, should appear from the plaintifE's evidence. lb. If a defendant relies upon an award as a defense, he must not only set it up in his answer, but also prove the execution of the submission by each party, or the agreement and promise by each, if there was no submission in writing, because the promise of one party is the considera- tion for the promise of the other. Antram v. Ghace, 15 East, 209 ; Houghton v. Houghton, 37 Me. 72. And see Vol. I, 202. Impeaching awards. An award may be regular in form, and ap- parently valid, so far as the instrument shows, and yet it may be liable to be set aside or held to be void. Wbere the submission is made under the provisions of the statute authorizing the entry of a judgment upon the award, there are various grounds upon which such court may set aside the award. These are clearly stated in the statute, ^ee ante, 834. But as these matters cannot be made the subject of any proceed- ing in a justice's court, an examination of cases upon this subject is un- necessary. There are cases, however, in which awards will be held invalid in any court in which the question may arise, and some of these cases may be appropriately considered. It may always be shown as a defense to an action upon an award? that the arbitrators exceeded their authority. Butler v. Mayor of New York, 7 Hill, 329 ; Briggs v. Smith, 20 Barb. 409 ; Borrowe v. Mil- tank, 5 Abb. 28 ; In re Williams, 4 Denio, 199. An oral evidence may be given to invalidate an award, by showing that the arbitrators exceeded their powers, even though the submission and award are in writing and under seal. lb. Although arbitrators may exercise a proper discretion as to the notice to be given of a hearing before them, this does not authorize them to hear and determine a cause without any notice of hearing. And an award which is made without any notice of hearing to the losing party is void ; and the defense may be set up in an action at law upon the DEFENSES. 867 Arbitrament and award. — Impeaching awards. boDd. Elmendorf v. Harris, 23 Wend. 628 ; Peters v. NewkirTt, 6 Cow. 103 ; Jorda/n v. Hyatt, 3 Barb. 275 ; Collins v. Vanderbilt, 8 Bosw. 313. And if a part of the evidence is taken in the absence of the los- ing party, and without notice to him that such evidence was to be taken, this will render the award invalid. Collins v. Yanderbilt, 8 Bosw. 318 ; Walker v. Frdbisher, 6 Ves. Jr. YO ; Knowlton v. Miohles, 29 Barb. 465. But, unless it is in some cases like those already noticed, or such as show fraud or corruption in making the award, the general rule is, that an award cannot be reviewed upon the merits, especially in a collateral action. It is a principle of extensive application that the court will not inquire at all into the merits of the matters arbitrated, nor take into consideration any such legal objections as appear upon the face of the award, except such objections as may go to show misbehavior on the part of the arbitrators. PerTcins v. Wing, 10 Johns. 143; New- land V. Douglass, 2 id. 62. In an action upon an award, parol evidence is not admissible to show that the arbitrators committed errors or mistakes in relation to the matters submitted to them, for the reason that such errors or mistakes cannot be corrected in a court of law. Briggs v. Smith, 20 Barb. 409. As to the power of the court to set aside or correct awards made in pursuance of the statute, see ante, 834. In an action upon an award it is no defense that the award is con- trary to law. Jackson v. Ambler, 14 Johns. 96, 105 ; Shephard v. Wat- irous, 3 Gaines, 166; Cranston v. Kenny, 9 Johns. 212; Mitchell y. Bush, 7 Cow. 185. The same rule prevails where the mistake relates to a matter of fact. lb. The decision of the arbitrators is con'clusive, as well in respect to questions of law as to those of fact. JEmmet v. Soyt, 17 "Wend. 410 ; Winship v. Jewett, 1 Barb. Ch. 173 ; FudicJcar v. Guardian Mut. Life Ins. Co., 62 N. Y. 392, 400 ; Perkins v. Giles, 50 id. 228 ; Morris Bun Coal Co. v. Salt Co., 58 id. 667. And this is especially true where the award has been accepted and executed. BeOastro v. Prett, 56 How. 484. And see Mitchell v. Carrone, 1 Mo. App. 453 ; Sherfy v. Graham, 72 111. 158 ; McDowell v. Thomas, 4 IsTeb. 542; Bean v. Macomher, 33 Mich. 127. Nor will an action at law be sustained for the purpose of recovering an amount which was awarded by the arbitrators in consequence of a mistake in the subtrac- tion of figures in making up their award. Newland v. Douglass, 2 Johns. 62. So where arbitrators made mistakes as to the measurements of work, and as to the prices allowed for it, this will not be a ground of impeaching the award in an action at law ; and the fact, that the party in whose favor the award was made, promised to correct such 868 DEFENSES. Arbitrament and award. — Impeaching awards. mistakes as might have been made by the arbitrators, does not change the rule. Efner v. Shaw, 2 "Wend. 567. The general rule that if arbitrators keep within their jurisdiction their award will not be set aside because they have erred in judgment either upon the facts or the law is subject to the qualification that awards may be set aside for palpable error of fact, such as a miscal- culation of figures, or mistake of that nature. The award may also be set aside for error of law, when the question of law is stated on the face of the award, and it appears that the arbitrators meant to decide according to the law but did not. In both these cases the award is not what the arbitrators themselves intended. It is not in fact their judgment ; for, except for the mistake, the award would have been different. But it must appear upon the face of the award that the ar- bitrators have mistaken the law, to enable the court to set it aside upon that ground. The party alleging error must be able to point to the award and say that the arbitrators, as appears from the award itself, intended to decide the base according to law, and have mistaken it, and that except for this mistake the award would have been different. Fudichar v. Guardian Mut. Life Ins. Co., 62 JST. Y. 392. The general rule that the decisions of arbitrators are not reviewable on the mere ground that they are erroneous applies only to their de- cisions on matters submitted to them ; and their construction of the submission is not conclusive. Halstead v. Seaman, 82 N. T. 27. Arbitrators may, unless restricted by the submission, disregard strict rules of law or evidence, and decide according to their sense of equity. Kleme v. Catara, 2 Gall. 61 ; Boston Water Power Go. v. Oray, 6 Mete. 132 ; Tyler v. Dyer, 13 Me. 41 ; Hazeltine v. Smith, 3 Yt. 535 ; Ouskman v. Wooster, 4.5 IST. H. 410; Fudickar v. Guardian Mut. Life Ins. Co., 62 N. T. 392, 400. But they cannot refuse to hear testimony which is pertinent and material without being guilty of misconduct which will vitiate the award. Halstead v. Seaman, 82 N. Y. 27. If arbitrators refuse to swear witnesses, but permit them to be heard without oath, this, at most, is mere error, and no defense to an action upon the award subsequently made. Dater v. Wellington, 1 Hill, 319. An award cannot be impeached collaterally by showing that the ar- bitrators erred in receiving evidence. Viele v. Troy and Boston H. .5., 21 Barb. 382. The fact that arbitrators took into consideration matters not sub- mitted to them is admissible as a defense in an action upon an award. Butler v. Mayor, etc., of New TorTc, 7 Hill, 329 ; Mayor, etc., of New DEFENSES. 869 Accord and satisfaction. Yorh V. Butler, 1 Barb. 326 ; In re Williams, 4 Denio, 194. And if they did so, and the court finds it impossible to distinguish between the valid and the invalid, the whole award is void. Briggs v. Smith, 20 Barb. 409. But every reasonable intendment will be made for the purpose of up- holding an award. Hiscock v. Harris, 74 N. Y. 108 ; Fudickar v. Guardian Mutual Life Ins. Co., 62 id. 392 ; Curtis v. Gokey, 68 id. 300 ; Locke v. Filley, 14 Hun, 139. And although its terms are not so comprehensive as those of the submission, the award will, nevertheless, be held valid, unless it appears that matters were brought before the arbitrators and submitted which are not embraced in the award. Ott v. Schroeppel, 5 N. Y. 482. Must be pleaded. This defense, like all other afiirmative defenses, must be interposed by answer, or it will not be available. § 21. Accord and satisfaction. Definition and general principles. An accord is an agreement, consent or concurrence of the minds and intentions of two or more individuals. It is an agreement between a party injuring and a party injured, to make satisfaction for the injury, which, when performed, is a bar to any action for the original claim, demand or cause of action. If A. is indebted to B. for an unliquidated amount, or if he is liable to him in an action for any cause, and he prom- ises or agrees to pay B. a specified sum, or to deliver him some other ascer- tained thing, which B. agrees to accept in satisfaction of his demand, tliis is an accord; and if the promise is performed by the dehvery and acceptance of the thing agreed, this is a satisfaction, and bars any action for the original cause. To render an accord and satisfaction valid, the thing agreed to be done must be legal; for if the thing to be done or the consideration is illegal, the accord will be void. Edgecombe v. liodd, 5 East, 294. The principle of an accord and satisfaction is, that a party who has a legal right of action against another may accept of some other legal thing in discharge of his claim or demand ; and the agreement to de- liver it is the accord, but the actual delivery and acceptance thereof is the satisfaction. And according to a very ancient rule the mere accord, without the requisite satisfaction agreed on, is not a bar to an action on a legal claim or demand. How far this satisfaction must be complete and perfect will be seen in a subsequent place. The terms and conditions of a composition deed must be strictly com- plied with by a debtor, to be a bar to an action by the creditor to re- cover the whole amount of his debt. It is not enough to show that the creditor may eventually receive the whole amount of his composition 870 DEFENSES. Accord and satisfaction. — Satisfaction, from wliom to move. claim from the debtor's property, if that is to be done bj violating the terms of the composition. Smythe v. Gray don, 29 How. 11. The creditors are also bound to abide by the terms of the composition deed, and cannot maintain an action for the amount of their debts, in violation of the terms of such deed. Smythe v. Graydon, 29 How. 224. A father entered into a composition agreement with the creditors of his insolvent son, by which he agreed to pay forty cents on a dollar of his son's debts, and the creditors respectively agreed to accept that amount in satisfaction of their debts ; and it was held that the payment of the stipulated sum by the father to one of the creditors, and its ac- ceptance by him, was a satisfaction of his entire demand, and that, in an action against the son to recover upon the original demand, he might plead the payment thus made, as an accord and satisfaction, and that it would be a bar to the action. Bahcock v. Dill, 43 Barb. 677. Satisfaction, from whom to move. According to a very old authority, a satisfaction moving from a stranger is, if accepted, a bar to an action for the demand thus satisfied. In Fitzherbert's Abridsr- ment, title Barre, pi. 166, it is stated that, " If a stranger does trespass to me, and one of his relations, or any other, gives any thing to me for the same trespass, to which I agree, the stranger shall have advantage of that bar to me ; for, if I be satisfied, it is not reason that I be again satisfied. Quod tola curia concessit." But, notwithstanding this authority, it is settled that an answer which sets up an accord and satisfaction moving from a stranger, or a third person, will not constitute a bar or a defense to a right of action. Clow y. Borst, 6 Johns. 37; Daniels v. Hallenbeoh, 19 Wend. 408. And see Jones v. Broadhurst, 9 C. B. 173, 196, 197, 198 ; Belshaw V. Bush, 11 id. 191, 207; James v. Isaacs, 12 id. 791, 797, 798; Keinp V. Balls, 10 Exch. 607 ; Lucas v. Wilkinson, 1 Hurlst. & Norm. 420. But, if such satisfaction is advanced by a stranger at the defendant's request, and it is then accepted by the plaintiflF, this will be a good accord and satisfaction. Busk v. Soutter, 67 Barb. 371. And there may be cases in which a previous request is not necessary; for, if a person makes the advance as the professed agent of the defendant, although he had no authority at the time, and the sum or thing is ac- cepted by the plaintiff, this will bar his action, if the defendant sub- sequently ratifies the unauthorized act of such assumed agent ; and the ratification will be sufficient, if made at the trial of the action. Simp- son V. Eggington, 10 Exch. 845. So, if a payment is made on account of the defendant's debt, and DEFENSES. 871 Accord and satisfaction. — Satisfaction, to whom. on his behalf, it will, if subsequently ratified by him, be a valid pay- ment and discharge of the debt ; and it will be sufhcient to adopt and ratify it at the time of answering in the action. Belshaw v. Bush, 11 C. B. 191, 207. And see Booth y. Smith, 3 Wend. 66. But, where a stranger volunteers to make such a payment, without authority, the mere adoption of the payment by the person benefited will not give a right of action against him, in favor of the person mak- ing such payment. Ingraham v. Gilbert, 20 Barb. 151. It is well settled that an accord and satisfaction, by one of several obligors or wrong-doers, is a satisfaction as to aU. Strang v. Holmes, 7 Cow. 224. And so a partial satisfaction, by one of several wrong- doers, is, so far as it goes, a satisfaction as to all. Merchants^ Bank V. Curtiss, 37 Barb. 317. It is a good defense in an action against a servant for a trespass committed by command of his master, that the plaintiff has accepted satisfaction from the master. Thurman v. Wild, 11 Ad. & Ell. 453; S. C, 3 P. & D. 489. A vested right of action in the holder against the acceptor of a bill of exchange can in general be destroyed only by a release, or an ac- cord and satisfaction, as between them. But, if the bill be an accom- modation bill, and the holder has notice of that fact when he receives it, payment by the drawer is a complete discharge. Cook v. Lister, 13 J. Scott (N. S.), 543. Satisfaction, to whom. Where a cause of action is due to several persons jointly, a satisfaction to one of the creditors is a discharge of the entire claim as to all the creditors. So, in an action by three plaintiffs for a joint demand, the defendant pleaded an accord and satisfaction with one of the plaintiffs, by a part payment in cash and a set-off of a debt due from that one to the de- fendant ; and this was held to be a good bar to the action, without alleging any authority from the other two plaintiffs to make the settle- ment. Wallace v. Kelsall, 7 Mees. & Wels. 264. And the thing de- livered in satisfaction need not be received by the creditor in person, for, if it is received by his duly authorized agent for that purpose, it will be entirely valid, and will bar any subsequent action. Andersons. Highland Turnjaike Co., 16 Johns. 86. Value of satisfaction. The matter or thing agreed to be received in satisfaction of a debt or demand must possess some legal value ; and it must be something to which the creditor was not before entitled. And if the thing given in satisfaction has no legal value whatever, it will not be available as a valid accord and satisfaction. In an action for wrongfully taking cattle, it is no answer that it was agreed that the 872 DEFENSES. Accord and satisfaction. — Value of satisfaction. plaintiff might have them again, for this is nothing more than the law would have given him ; and, therefore, the return of the cattle is not a satisfaction for the injury caused by the detention of them. Keeler v. Neal, 2 Watts, 424. And see Davis v. Nooks, 3 J. J. Marsh. 494, 497. Biit if the consideration be of some legal value, or if it be a transfer of some interest or right of action which vests in the creditor, and which he had not before, this is good and valid, even though it be of less value than the original debt or claim. And if it be proved that such matter or thing was agreed by the parties to be given and taken as a satisfac- tion of the previous debt or demand, this will constitute a valid accord; and will be a satisfaction, if subsequently executed, since it supplies the requisites of a legal bar, which is to show that there was a promise, on a valid consideration, to treat the old debt or demand as satisfied, and that this contract should be executed by the delivery and accept- ance of the consideration. And, therefore, the delivery and acceptance of some collateral thing of value, in accordance with such agreements, though of less value than the debt or demand, will be a bar to an action on such debt or demand. A delivery and acceptance of the promissory note or indorsement of a third person is sufficient. Booth v. Smith, 3 "Wend. 66 ; New York State Bank v. Fletcher, 5 Wend. 85 ; Frisbie V. La/rned, 21 id. 451; Maze v. Miller, 1 Wash. (C. C.) 328; Gordon v. Price, 10 Ired. (IST. 0.) 385 ; Pulliam v. Taylor, 50 Miss. 251; Pardee v. Wood, 8 Hun, 534; Babcoch v. Bill, 45 Barb. 577; and this is so, even though the note of such third person should be of less amount than the original debt. Boyd v. Hitchcock, 20 Johns. 76 ; Le Page v. McOrea, 1 Wend. 164; Kellogg v. Richards, 14 id. 116. So of an assignment by the debtor of all his stock in trade and his outstanding accounts. Wathinson v. Inglesby, 5 Johns. 386. If a creditor choose to accept any thing other than money in discharge of his debts he has a right to do so, and the debtor has an equal right to make such a compact if he can do so honestly. Grocers' Bank of New York v. Fitch, 1 Sup. Ct. (T. & C.) 651 ; S. C. affirmed, 58 N. T. 623. Not merely executory. It is not enough to constitute a bar that there was a clear agreement or accord, and a sufficient consideration, but the agreement or accord must be executed. Hall v. Smith, 10 Iowa, 45 ; Hearn v. Hiehl, 38 Penn. St. 147 ; Kromer v. Heim, 75 N. T. 574 ; Panzerheiter v. Waydell, 21 Hun, 1 61 ; Hammond v. Christie, 5 Rob. 160 ; S. C. affirmed, 51 N". Y. 270 ; Bay v. Both, 18 id. 448. The answer ought to allege that the mattter or thing was ac- cepted in satisfaction ; for mere readiness to perform the accord, or a DEFENSES. 873 Accord and satisfaction. — Not merely executory. tender of performance, will not do, and an answer of accord and a tender of performance is bad on demurrer. Russell v. Lytle, 6 Wend. 390 ; Hawley v. Foot, 19 id. 516 ; Brooklyn Bank v. De Grauw, 23 id. 342 ; Tilton V. AIgoU, 16 Barb. 598 ; Blaokhurn v. Ormsly, 41 Penn. St. 97 ; Gushing v. Wyman, 42 Me. 121 ; Simmons v. Clark, 56 111. 96. A defense of accord and satisfaction is not supported by proof of a ten- der .of satisfaction, without proof that the tender has been accepted or received. Pettis v. Ray, 12 K. I. 344. A mere verbal agreement to accept a future delivery of goods in satisfaction of a debt created by a sealed instrument is no defense to an action brought upon the latter. LoAJorence v. Woods, 4 Bosw. 354. It is also a rule that every part of the matter agreed to be received as a satisfaction must be effectual, so that if there is a partial failure of performance of the accord, or a part of it does not take effect, the whole agreement is void, and the entire accord fails. Nave v. Fletcher, 4 Litt. (Ky.) 242 ; Gockr. Honyohuroh, T. Eaym. 203; Wathinson-^. Inglesly, 5 Johns. 386. A part execution of an accord, and a tender of perform- ance of the residue is insufficient to sustain a plea of accord and sat- isfaction. Kromer v. Heim, 75 !N. Y. 574. The rule that a promise to do another thing is not a satisfaction is subject to the qualification that where the parties agree that the new promise shall itself be a satisfaction of the prior debt or duty, and the new agreement is based upon a good consideration and is accepted in satisfaction, then it operates as such, and bars the action. lb.; Evans v. Powis, 1 Exch. 601 ; Kinsler v. Pofe, 5 Strobh. 126. So an excep- tion to the general rule has been allowed in cases of composition deeds, or agreements between a debtor and his creditors ; and they have been held, upon grounds peculiar to that class of instruments, to bar an ac- tion by a separate creditor to recover his debt, although the composition agreement was still executory. Oood v. Gheeseman, 2 Barn. & Ad. 335 ; Bayley v. Roman, 3 Bing. N. 0. 915 ; Kromer v. Heim, 75 N. Y. 51i. See Blair v. Wait, 69 id. 113. The doctrine which has some- times been asserted that mutual promises, which give a right of action, may operate and are good as an accord and satisfaction of a prior obli- gation must, in this State, be taken with the qualification that the in- tent was to accept the new promise as a satisfaction of the prior obliga- tion. When the performance of the new promise was the thing to be received in satisfaction, then until performance there is no complete accord, and the original obligation remains in force. Kromer v. Heim, 75 JSr. T. 574 ; Russell v. Lytle, 6 Wend. 390 ; Daniels v. Hallenbeck, 19 id. 408 ; RoAJoley v. FooU, id. 516 ; Tilton y.' AlcoU, 16 Barb. 598. 110 874 DEFEJNSES. Accord and satisfaction. — When sutBcient. What is a sufficient accord and satisfaction. An accord and satisfaction by one of several obligors in a bond is valid. Strang v. Holmes, 7 Cow. 224. And a conveyance of lands in pursuance of a parol agreement to accept and receive it in satisfaction of such bond is a valid accord and satisfaction. lb. So a delivery by a debtor of his stock in trade, and an assignment of his outstanding debts, to his creditor, in pursuance of an agreement with the creditor to do so for his benefit, and as a satisfaction of his debts, is valid, and if accepted by the creditor, the court will not inquire into the value of the stock and debts, but hold the accord and satisfac- tion valid, complete and conclusive. Waikinson v. Ingleshy, 5 Johns. 386. So the acceptance by a creditor of the note of a third person for the debt due from his debtor, in full payment of his demand, when fol- lowed by the paj^raent of such note, is a valid accord and satisfaction of the original debt, although the sum received was less than that amount. Le Page v. MoOrea, 1 Wend. IGi; Brussell v. Williams, 51 Ala. 349. So if a debtor offers to give his own note, indorsed by a third person, for about one-half of the original debt, and this note is accepted by the creditor in pursuance of the offer, the note will consti- tute a valid accord and satisfaction of the original demand, even though it does not appear whether such note has been paid or not. Boyd v. Sitohooch, 20 Johns. 76. So if a partnership firm gives the note of a third person, which is indorsed by one of the partners, together with a small sum of money to a creditor as a satisfaction of his debt, and he receives it as such, and balances the account against the firm on hia books, this will be an accord and satisfaction of his claim. Frisbie v. Lamed, 21 "Wend. 450 ; St. John v. Purdy, 1 Sandf. 9. A distinct agreement by a creditor, upon a dissolution of a partner- ship, to accept the notes of the member or members continuing in busi- ness, in discharge of the retiring members, is a valid discharge of them, and may be pleaded in bar of an action brought against them. Sheehy v. Mandeville, 6 Cranch, 253. And see Luddvngton v. Bell, 17 N. T. 138 ; Waydell v. Zuer, 3 Denio, 410 ; 6 Act. and Def. 415. "Where a debtor settles the amount due from him to his creditor upon notes and drafts, by giving him in fuU satisfaction of the claim a draft on a third party for fifty per cent of the amount, payable m gold, which is subsequently paid, and the creditor accepts such draft, and surrenders and cancels the evidences of the indebtedness, this is a good accord and satisfaction. Stagg v. Alexander, 55 Barb. 70. So, if one party furnishes another money, and such other gives him his note therefor, with the understanding that tlie payor shall procure third par- DEFENSES. 875 Accord and satisfaction. — When sufficient. ties to assign to himself certain liens on land claimed by the payee, which liens the payor shall hold for the benefit of the payee, in satis- faction of the note, the agreement amounts to an accord and satisfac- tion, and is a payment of the note. Treadwell v. Uwnmelmann, 50 Cal. 9. "When a creditor agrees to take certain property of his debtor in satisfaction of his debt upon the faith of representations of the debtor as to its condition, and does take the property under the agreement after a full opportunity to test the truth of the representations, this will be a good accord and satisfaction. Williams v. Phelps, 16 Wis. 80. An accord and satisfaction may be shown by evidence of a discharge of the debt, without a sealed release, in consideration of payment of part of the amount of the debt by the check of a third person. Guild v. But- ler, 127 Mass. 386. Where two parties have cross actions pending against each other for false imprisonment, and they mutually agree to discontinue such actions, and do so, this will be a good accord and satisfaction. Foster v. Trull, 12 Johns. 656. And in an action for the recovery of damages for a nuisance, caused by the act of the defendant in putting his dead ani- mals in plaintiff's stream, the defendant proved that after the cause of action accrued, but before the action was commenced, he made a claim against the plaintiff for a trespass committed by the cattle belonging to the latter, and that the plaintiff was willing to pay therefor ; but the defendant exacted, as one of the terms of a settlement, that the plaintiff should give him a receipt for one dollar, " in full of all demands to date," which the plaintiff thereupon did, and paid the damages for the trespass, and took the defendant's receipt therefor. At the time of this settlement nothing was said about the particular demand for which the action was brought ; but it was held that there was a valid accord and satisfaction of the cause of action for the nuisance. Yedder v. Vedder, 1 Denio, 257. The rule that the payment of a less sum in satisfaction of a debt is not good as an accord and satisfaction applies to those cases only in which there is no dispute as to the existence or the amount of the debt. It does not apply to a case in which there is a dispute as to the amount of the debt, and where the parties finally agree that the payment of a part of the sum claimed shall be a full payment ; for, if such an agree- ment is made, and a payment is made in accordance with it, and a receipt in full given, that will constitute a valid accord and satisfaction of the entire claim. Palmerton v. Huxford, 4 Denio, 166 ; Pierce v. Pierce, 25 Barb. 243. Where the claim settled is not a money demand, or, if so, is unliquidated, or, if liquidated, is doubtful in fact or law, 876 DEFENSES. Accord and satisfactiou. — When sufficient. any sum, no matter how small, given and received in satisfaction of the demand, will legally satisfy it, however large. Warren v. Skinner, 20 Conn. 559; United States v. C/dlds, 12 Wall. 232; McCall v. Nave, 52 Miss. 494: ; Brooks v. Moore, 67 Barb. 393 ; Ogborn v. Hoffman, 52 Ind. 439. The com-t will not, in such cases, inquire into the adequacy of the consideration. Fisher v. May, 2 Bibb (Ky.), 449 ; lieid v. Bart- lett, 19 Pick. 273. Even where the claim is a money demand, and liquidated and not doubtful, although it cannot be satisfied with a smaller sum of money, yet if any other personal property is received in satisfaction, it will be good, no matter what the value. Bull v. Bull, 43 Conn. 455. A creditor may receive, in satisfaction and discharge of his demand, an account against a stranger. Willard v. Germer, 1 Sandf. 60. A. made a criminal charge against B., and they agreed that A. should write a letter to C. in exculpation of B. in full satisfaction of the mat- ter, and he did so, which was held to be a good accord and satisfaction of any claim by B. Smith v. Kerr, 1 Barb. 155. A. held three notes against B., and in settlement and discharge of them he accepted and received the note of a third person for a less sum, which was paid at maturity, and this was held a valid accord and satisfaction. Webb v. Goldsmith, 2 Duer, 413. But if the acceptance of the note of a third person is procured by a wiUful misrepresentation or suppression of any material fact in the statement of his affairs, it will render the accord void. Stafford v. Bacon, 1 Hill, 532. A receipt for a sum of money, " in full for damage done us by the stage accident," etc., signed by the party injured, is prima facie evi- dence of an accord and satisfaction ; and, in the absence of fraud in obtaining it, cannot be varied by parol evidence. Coon v. Knap, 8 N. Y. 402. But where, in an accounting and settlement, there has been a clear mistake by an omission to include a considerable sum of mone}', an action vidll lie to correct the mistake. MoDougall v. Cooper, 31 N. T. 498. Such a case differs from a compromise of a disputed claim where a specified sum is received in satisfaction of the claim. lb.; Lud- ington v. Miller, 6 Jones & Sp. 478. In an action for an injury sus- tained through a railway accident it appeared that the plaintiff, not sup- posing at the time that he had sustained any serious injury, had accepted from the company a trifling sum as compensation for damage to his clothing, and it was held that the receipt of this sum could not be set Tip as an accord and satisfaction for a severe injury to the brain or spine, Roberts v. Eastern Counties B. E. Co., 1 F. & F. 460. But it has been held that where it was agreed between the plaintiff DEFENSES. 877 Accord and satisfaction. — What is not sufficient. and defendant that the plaintiff should sell certain goods for the de- fendant and pay the debt due from the defendant to the plaintiff out of the proceeds of the sale, and goods more than sufficient to pay the debt ■were sold under the agreement and the proceeds received by the plaintiff before the commencement of the action, the transaction amounted to an accord and satisfaction. Hills v. Mesnard, 10 Q. B. 266. The same de- fense was held good in another case where it appeared that the defend- ant and the plaintiff accounted together respecting the 'plaintiff's cause of action, and all other claims and demands between them ; that on that accounting, a certain sum only was found to be due to the plaintiff, and that defendant paid that sum to the plaintiff, who accepted and received the same in full satisfaction and discharge, etc. Callander v. Howard, 10 C. B. 290 ; Sutton v. Page, 3 C. B. 204 ; Smith v. Page, 15 Mees. & Wels. 686. What is not sufficient, as an accord and satisfaction. An agree- ment by way of an accord executory, which is to be performed at a future day, with a complete tender of performance, is no bar to an action, unless such performance was accepted. Tilton v. Alcott, 16 Barb. 598. See ante. So an answer, which alleges that the creditor accepted, in satisfaction, the debtor's order on a third party for his note, is not sufficient, though it is also alleged that the creditor presented the order to the third party, and that he tendered the note, since that is no satisfaction unless the note was accepted. Hawley v. Foote, 19 Wend. 516 ; Brooklyn Hank v. De- Crrauw, 23 id. 342. So where the holder of an unaccepted draft, after its maturity, entered into a sealed agreement vidth the acceptor to take less than its face if paid within a specified time, and to transfer it to a third party, it was held that, although the sum agreed to be taken was tendered within the specified time, this would constitute no defense to an action on the draft. Yovm,g v. Jones, 64 Me. 563; S. C, 18 Am. Rep. 279. The owner's right of action for injuries to a chattel while in the possession of the bailee is not barred by a settlement between the owner and the bailee. Rindge v. Cdbraine, 11 Gray, 157. Saying " it is not enough, but there will be no trouble " at the time of the payment of a claim, is not an acceptance in full satisfaction. Willey v. Warden, 27 Yt. 655. And the payment by a debtor, and the acceptance by a creditor, of a smaller sum of money, in payment or satisfaction of a larger one, which is justly and actually due, is not a valid discharge, either as a payment or as an accord and satisfaction. Seymour v. Minturn, 17 Johns. 169 ; Ded&rick v. Lemon, 9 id. 333 ; Luddington v. Bell, 77 N. T. 138, 143 ; Brooks v. Moore, 67 Barb. 393 ; Miller v. Goates, 66 N. Y. 609 ; Oray v. Barton, 55 id. 68, 71. 878 DEFENSES. Accord and satisfaction. — What is not sufBcient. And if tte creditor, on receipt of such payment, gives his debtor a receipt in full, he will not be concluded from recovering the balance due, although the receipt was given with full knowledge, and there was no error or fraud. Myan v. Ward, 48 2T. T. 204 ; S. (1., 8 Am. Eep. 539 ; Luddington v. Bell, 77 JS". T. 138, 143. Nor is the rule in any way affected by the fact that the debtor was unable to pay his debt in full, and his creditor agreed that if the debtor would borrow from his friends and pay over to him a part of the sum admitted to be due, he would receive such sum in satisfaction of his demand, and that the money was borrowed and paid imder such agreement. Bunge v. Koop, 48 N. Y. 225 ; S. 0., 8 Am. Eep. 546 ; Harriman v. Ilarriman, 12 Gray, 341. Ifor is the effect of such payment changed by the fact that the part payment was made in checks received by the debtor from his friends instead of money, the agreement being for a payment in money. Bvm^e V. Koop, 48 IST. T. 225 ; Bliss v. Shwarts, 65 id. 444. But the rule would be otherwise if there had been any dispute as to the amount actually due, or if the creditor had agreed to accept the notes of third parties, or any specific personal property in satisfaction of his demand. lb. An agreement with one of two joint debtors, to accept a part of the debt from him, and to look to the other for the residue, with a payment of the agreed sum, is not a satisfaction of the entire demand, nor will it bar an action against both for the residue. Ha/rrison v. Close, 2 Johns. 448. So a receipt given to one of two joint and several debtors, in full of his obligation, in consideration of part payment, will not operate to discharge either of them. Buohmgham v. Oliver, 3 E. D. Smith, 129. But the rule that a part payment is no bar to an action for the residue of the debt applies in those cases only in which the demand is undis- puted, and is liquidated; for, if the sum is -disputed or the amount unliquidated, a payment of a part and an acceptance of it in satisfaction by the creditor will" bar an action for any further sum than that paid and accepted. Longridge v. Dorville, 5 Barn. & Aid. 117 ; Wilkinson V. Byers, 1 Ad. & El. 106 ; Atlee v. Backhouse, 3 Mees. & "Wels. 651 ; Palmerton v. Huxford, 4 Denio, 166 ; ante, 875. Where the plaintiffs had obtained a judgment before a justice of the peace, against several defendants, and one of them was about to bring an appeal, when the plaintiffs, in consideration of his agreement not to appeal, agreed that they would not take any proceedings to collect the judgment from him, but would look to the other defendants alone for the money, this was held not to be an accord and satisfaction, although DEFENSES. 879 Accord and satisfaction. — What is not sufficient. no appeal was brought, since nothing was received in satisfaction, and every thing rested in promises. Mitchell v. Hawley, 4 Denio, 414. But, in the case last cited, one of the reasons assigned for the de- cision was, that the judgment was in the nature of a record, and that the written agreement could not operate as a release of the judgment, because it was not under seal; nor as an accord and satisfaction, be- cause it was merely an executory agreement. And it was also held, that an accord and satisfaction by parol, or by a writing not under seal, cannot be set up as a bar to an action upon a record, or a judgment in the nature of a record. But where the demand is in writing, though not under seal, or where it is a demand not existing in writing, an accord which consists of mutual promises, although unperformed, having a new and valid consideration, is binding upon the parties, and an action will lie for a breach of it. Billings v. Vanderhech, 23 Barb. 546. But an answer which alleges that the plain tifi had an accounting, and that the defendant gave, and the plaintiff accepted his negotiable promissory note on account of such demand, is no bar to an action upon the original demand, unless the action is brought before the ma- turity of the note, or it is shown to be outstanding in the hands of a third person. Hughes v. Wheeler, 8 Cow. TT. And see Burdick v. Green, 15 Johns. 247 ; Pintard v. Tackington, 10 id. 104. An accord and satisfaction which is obtained by means of duress; will be void ; and where an employer, upon discharging an employee, in a foreign land, refused to make him any payments or to grant him a passage home in the employer's ship, pursuant to the contract be- tween them, unless he would accept less than the sum demanded, and also sign a receipt in full, which the employee did, while destitute of money and without the means of returning home, this was held to be no bar to an action for what was justly due. JRourlce v. Story, 4 E. D. Smith, 54. So an accord and satisfaction obtained by the fraiid and misrepre- sentation of the debtor is void. Baher v. Spencer, 58 Barb. 248 ', S. C. affirmed, 47 N. Y. 562. And a mutual mistake of fact will destroy the effect of an accord and satisfaction into which the mistake has entered. An accord is not a bar to the correcting of a mistake' by which the accord was induced. Calkins v. Oriswold, 11 Hun, 208. The receipt of part payment under protest, though the amount re- ceived is tendered as payment in full, is not an accord and satisfaction. People v. Supervisors of Cortland, 58 Barb. 139 ; S. C, 40 How. 63. But see Looby v. Village of West Troy, 24 Hun, 78. Nor can a plea 880 DEFENSES. Tender. — What it is. of accord and satisfaction be supported by proof of a tender made to the plaintiff's attorney, wbo declined to accept the thing tendered as a satisfaction. Noe v. Christie, 51 N. T. 270. Defense must be pleaded. To render an accord and satisfaction available as a defense, it must be pleaded, by setting it up in the an- swer. The defendant may, after suit is brought, settle the cause of ac- tion, and then, in his answer set up such settlement by way of defense. Willis V. Chipp, 9 How. 568. But there may be circumstances under which a defendant may avail himself of this defense although he has not set it up in his answer. Thus, if a person receives a sum of money in payment of a disputed claim, at the same time giving a receipt stating that the money was re- ceived in full and complete settlement and satisfaction of his claim, and afterward, in an action to recover the balance, as a part of his case proves the payment and the circumstances under which it was made, the defendant may rely upon the facts as constituting an accord and satisfaction, although he has not pleaded them ia his answer as such. Loohf V. Village of West Troy, 24 Hun, 78. § 22. Tender. What it is. When used in reference to contracts or pleadings, this word is understood to mean an offer to do or perform an act which the party offering is legally bound to perform to the party to whom the offer is made. In relation to money debts, it is an offer of a sum of money in satisfaction of the debt or claim, by proceeding and show- ing the amount to the creditor or party claiming, and expressing verbally a willingness to pay it. And the word imports not only a verbal offer, but a corresponding corporal act, as by produciag and showing the amount. The principle of a plea of tender is this, that the defendant has been ready at all times to pay upon request, and on a particular occasion of- fered the money. HesTceth v. Fawcett, 2 Dowl. (N. S.) 829 ; S. C, 11 Mees. & Wels. 356. At common law a tender could not legally be made in any case, un- less the debt or duty was certain, or was capable of being made certain ■ by computation, or other act of the party making the tender. For that reason a tender at common law was confined to those cases in which the thing tendered was a sum of money, or some specific chattel or thing. And in all actions, whether upon contract or for a tort, if the recovery was for .unliquidated damages, no tender could properly be made. Dunnim^ v. Humjphrey, 24 Wend. 31. The Revised Statutes made some changes in the doctrines of the com- mon law relating to tender, and provided among other things that DEFENSES. 881 Tender. — W-hat it is. " when any action at law sha,U be commenced for the recovery of 9. sum certain, or which may be reduced to certainty by calculation, or for a casual or involuntary trespass or injury, the defendant in a,ny stage of the proceedings, before trial in such cases, or before such damages shall have been assessed, or before judgment rendered in an action of debt, may tender to the plaintiff, or his attorney, any sum of money which such defendant shall conceive sufficient amends for the injury done, for which such action or proceeding was instituted, or sufficient to pay the plaintiff's demand, together with the costs of such action or pro- ceeding to the time of making such tender." 2 K. S. 574, § 20 ; .3 E. S. (5th ed.) 868 ; part 3, chap. 8, title 2. This provision of the Kevised Statutes was substantially re-enacted in the Code of Civil Procedure ; and under that act a tender may be made in an action to recover damages for a casual or involuntary personal injury, or a like injury to property, although the damages were unliquidated. See Code of Civil Pro., § 731 . The tender authorized by the Revised Statutes or by the Code can be made only after an action has been commenced, while a tender at common law must be made before snit ; and therefore the effect of every tender made before action is to be determined by the rules of the common law. See Kelly v. TTes^, 4 Jones & Sp. 304; Brown v. Ferguson, 2 Denio, 196 ; Suffolk Bank v. Woroester Bank, 5 Pick. 106. The provisions of the Revised Statutes relating to tender after suit were repealed upon the adoption of the Code of Civil Procedure. See Laws of 18Y7, chap. 417. The corresponding provisions of the Code of Civil Procedure do not apply to justices' courts ; and the subject of statutory tender has been so far noticed in this connection, for the sole purpose of preventing any confusion in the examination of cases by confounding the rules relating to tender under the statute with those relating to tender at common law. There will be very few cases in which a defendant can be prejudiced by being deprived of the right to make a tender after suit brought in justices' court, as he may have all the advantages of such tender with- out any corresponding disadvantages under an offer to allow judgment to be taken against him for a sum. specified, with costs. See Code of Civil Pro., §2892; Vol. I, 9. The manner of tendering chattels will be explained in a .fiubse- quent place. And see ante, 36 to 48. By whom made. If there is but one debtor, and he properly tenders the amount, there will be no question whether the tender was made 111 882 DEFENSES. Tender. — By whom made. by the right person. If there are several debtors, a tender by all or any of them is sufficient ; and the rule is the same whether the debtors are jointly, or jointly and severally liable. And a tender need not be made by the debtor in proper person, for he may employ an agent for that purpose, and a proper tender by an agent duly authorized will be entirely valid. And, if an agent is furnished with a specific sum of money for the purpose of making a tender, and he, at his own risk tenders a greater sum, such tender will be valid. Read v. Ooldring, 3 Maule & Selw. 86. A tender may be valid in some instances, even though made by a stranger. And where there was an interview between the plaintifE and the defendant, at which the defendant was willing to pay a specified sum, which a third person present ofEered to go up stairs in the house where they were and get, but was prevented by the plaintifE, who said she need not trouble herself, for he could not take it, and it also ap- peared that she had the money there, this was held to be a sufficient tender by the defendant himself, although he did not, at the time, take notice of what was done, because his subsequent pleading it afterward was a sufficient ratification of the act. Harding v. Davies, 2 Carr. & Payne, 78. But as a general rule a tender of money due under a contract cannot be made by a mere stranger to the contract so as to oblige the creditor to accept it. Harris v. Jex, 66 Barb. 232 ; McDougald v. Dougheriy, 11 Ga. 570. Any person may make a valid tender for an idiot, and the reason of the rule has been held applicable to a tender for an infant by a relative who was not his guardian. Co. Litt., 5 / Brown v. Dysinger, 1 Kawle, 408. So a tender may be made by an inhabitant of a school district, on behalf of such district, without any express authority, and this, if ratified by the district, is a good tender. Kincaid v. Brunswick, 2 Fairf. 188. To whom made. A tender to the creditor in person will always be made to the proper party. If the money is due to several persons jointly, it may legally be tendered to either of them, though it must be pleaded as a tender to them all. Douglas v. Patrick, 3 Term E. 683. To constitute a valid tender, it must be made to the creditor himself, or to some one authorized to receive it in his behalf. Hornby v. Cramer, 12 How. 490; Grussy ^.Schneider, 50 id. 134; S. C. af- firmed, 55 id. 188. And see King v. Finch, 60 Ind. 420. But where the money was due on a contract for the sale of lands, which specified a day, but no place for the payment of the purchase-money, DEFENSES. 883 Tender. — When to be made. and on inquiry by tlie vendee of the vendor, as to the place of pay- ment, she said she would be at home on the day fixed for payment, it was held that a tender on that day, at her residence, to her son, who was living with her, was valid, she having absented herself therefrom at that time. Smith v. Smith, 25 "Wend. 405 ; S. C, 2 Hill, 351. So, in such a case, if the creditor, knowing the day upon which a pay- ment ought to be made, voluntarily absents himself from home on that day, under circumstances indicating an intention to avoid the debtor, a tender by tbe latter to any proper member of the family whom he may find at the creditor's house at that time will be good. Judd v. Mi- sign, 6 Barb. 258. A tender to an assignee of a debt or demand is a good tender. And a tender to an agent authorized to receive payment is as good as a tender to the creditor in person. Goodland v. Blewith, 1 Camp. 477. If a clerk is authorized to receive money, but the creditor directs him not to receive a certain sum, if offered by a specified debtor, for the reason that the demand had been put into the hands of the creditor's attorney, and the money is afterward tendered by the debtor to the clerk, who refuses to receive it, and assigns his in- structions as the reason for the refusal, the tender will, nevertheless, be valid, as a tender to the principal. Moffat v. Parsons, 5 Taunt. 307 ; S. 0., 1 Marsh. 55. So a tender to a merchant's clerk, at the store for goods previously bought there, is good, although the claim had been left with an attorney for collection. Hoyt v. Byrnes, 2 Fairf. 475 ; Mclniffe v. Wheelooh, 1 Gray, 600. A tender is also valid if made to an attorney with whom the claim has been left for collection. Crozer v. Pilling, 4 Barn. & Ores. 26 ; Jackson v. Crafts, 18 Johns, 110. And if an attorney, vsdth whom a demand is left for collection, writes a letter demanding payment at his office, a tender by the debtor to any person in charge of the office, in the attorney's absence, is valid. KiHon V. Braithwaite, 1 Mees. & Wels. 310 ; Wilmot v. Smith, 3 Oarr. & Payne, 453. And see Barrett v. Deere, M. & M. 200. If, in such a case, the attorney had written a letter, demanding pay- ment to himself, instead of generally, at his office, a tender to a writ- ing clerk in the office would not have been valid. Watson v. Hethering- ton, 1 Carr. & Kir. 36. But a tender to a clerk of a sub-agent of the cerditor is insufficient, unless it is shown that such clerk had authority to receive the money. Ha/rgous v. Lahens, 3 Sandf. 213. When to be made. At common law a tender must be made on the very day on which the money is due, if that day is fixed or made certain 884 DEFENSES. Tender. — Where to be m&de. by the contract. But a statutory tender may be made after the day of payment, under certain circumstances and upon specified conditions. But a tender of money, before it is due, will be entirely ineffectual as a legal tender for any purpose. Mitchell \. Cook, 29 Barb. 24:3 ; TiUoit V. Britton, 4 Halst. 120 ; Saunders v. Frost, 5 Pick. 267. If the debt draws interest, a tender of the amount, before it is due, without also tendering interest up to the time of the matiu'ity of the debt, is clearly bad. lb. But if the debt does not draw interest, it has been held in one case, that a tender before the day of payment was valid. McHard V. Wheteroft, 3 Harris & McH. 85. When money is not to become due until demanded, no tender need be made before such demand, since the money will not be due before that time. But where money is to be due or payable on or before a specified day, a tender may be made at any time before the day fixed, because the debtor has an option to pay on that day or before that time, if he so elects. Where money is received by one person for the use of another, and it ought, by law, to be paid over without delay and without demand, a tender of the money may be made at any time. And it ought to be done promptly, if the person i-eceiving it would avoid the payment of interest and costs from the time it ought to have been paid or tendered. Stacy V. Graham, 14 N. T. 492 ; S. C, 3 Duer, 444. And see am,te, 405, 406. But the right to sue, without a previous demand, for money received will not be extended. And where a bank receives money on deposit, in the ordinary way, from one of its customers, the latter can- not maintain an action for its recovery, without a previous demand by check or otherwise. Dowries v. Phoenix Bank, 6 Hill, 297. A tender before an action is actually commenced is sufficient, even though the creditor has placed the demand in the hands of an attorney, who has made out the papers for commencing the action, and has also placed them in the sheriffs hands for service ; and it is not necessary to tender any costs ; and this is especially the case where the debtor does not know, and is not informed at the time of making the tender, that costs have been incurred. Hull v. Peters, 7 Barb. 331, overruling Petan v. Drew, 19 Wend. 304. And see Johnson v. Comstoch, 6 Hill, 10 ; Knight v. Beach, 7 Abb. (N. S.) 241, 249 ; Kelly v. West, 4 Jones & Sp. 304 ; PamdaU v. Bacon, 49 Vt. 20. Where to be made. Where fhe contract provides, in express terms, that payment of a sum of money shall be made at a particular plaice, a tender at that place will be sufficient, but it will not be valid at any other. But where no place of payment is mentioned, and the debt is DEFENSES. 885 Teodpr. — J(Ianner of tendering. due in monej, the debtor is bound to seek the creditor wherever he may be within the State, and make or tender payment to him there. Littell V. Jffichors A(lm,rs., Hardin, 66 ; Ohamlers v. Winn, Pr. Dee. 193 ; HaU v. Patton, 60 N. Y. 233, 236 ; Houhie v. Volhening, 49 How. 169 ; Hoag v. Parr, 13 Hun, 95. If, however, a contract is made in one State of the Union, for the payment of money, the debtor is not bound to go to another State to tender the money to the creditor. Allshouse v. Ramsay, 6 Whart. 331 ; R(Ae v. Patton, 60 N. Y. 233 ; S. C, 19 Am. "Rep. 168. If no place has been appointed for the payment of money, the general rule is, that a tender to the creditor, wherever he may be found, will be valid. SUngerland v. Morse, 8 Johns. 474. And this is the rule even as to rent, which may always be paid on the land, though a personal tender to the creditor is equally valid. Hunter v. Le Conte, 6 Cow. 728. A tenant, however, is not, in some casps, required to make a tender off of the demised premises. It is a well-settled prin- ciple, as to rent, payable in money or kind, that where the contract is silent as to the place of payment, a tender on the land is good, and it is not required of the lessee to make a tender to the person ; and the reason is, that rent issuing out of the land savors so far of the realty, that it is payable on the leased premises. Walter v. Dewey, 16 Johns. 222, 224. And where the rent reserved was to be payable in book accounts, which the tenant was to warrant to be good for collection, and which should then be due in cash, it was held that a tender of such book accounts, properly warranted, upon the demised premises, was a valid tender. lb. The law as to a tender in specific articles of property will be explained in a subsequent place. As to the payment or tender of articles on a chattel note, see Yol. I, 722-726. Manner of tendering. The defense of tender is allowed upon the principle that the creditor might have received his money without ac- tion if be would ; and, therefore, the law wiU neither encourage nor justify him in making unnecessary costs for his debtor to pay. Bat be- fore the debtoi will be permitted to avail himself of this defense, he must shov that he has fully complied with the requirements of the law in relation to a tender. A tender by a debtor must be evidenced by both words and acts. In addressing his creditor, he must employ language which explicitly offers to pay a specified sum of money upon some debt or demand which is theri mentioned, and which is recognized as being due to the extent of the sum tendered. See Potts v. Plmsted, 30 Mich. 149 ; Proctor y. Robinson, 35 id. 284. And there must be more than 886 DEFENSES. Tender. — Manner ol tendering. mere words, for the offer must be accompanied by an actual offer or a manual tender of tlie sum intended to be tendered. Bdkeman v. Pooler, 15 Wend. 637; Strong v. Blahe, 46 Barb. 227; Oashma/ii v. Martin, 50 How. 337. Where a tender is set up in the answer, it must be proved that there was a production of the money, and an actual offer of it to the creditor, unless it is shown that the latter dispensed with it by some positive act or declaration. Bakeman v. Pooler, 15 Wend. 637. In such a case, it is not enough to show that the debtor had the money in his pocket, and that he informed his creditor that the money was ready for him, and that he asked him to take the money, when it also appears that the money was not shown to the creditor. lb. Under such circumstances, a creditor is not bound to say whether he will take the money or not, until it is actually produced and offered to him. lb. It is not sufficient for the debtor to say that he is ready to pay, with- out offering to do so ; and if, at the time of making an offer to pay a specified sum, he retains the money in a bag under his arm, instead of offering it to the creditor, the tender will be invalid. Sucklmge V. Coney, Noy. 7i. And see Thomas v. Evams, 10 East, 101 ; Dickinson V. Shee, 4 Esp. 68 ; Kraus v. Arnold, 7 J. B. Moore, 59 ; Leatherdale V. Sweepstone, 3 Carr. & Payne, 342 ; Pinch v. BrooTc, 1 Scott, 70 ; Breed v. liurd, 6 Pick. 356. Nor is it sufficient that the money is contained in an envelope which the debtor retains in his own hands, while he shows it to his creditor, or shakes it at him. Strong v. Blahe, 46 Barb. 227. There must be an actual presentation or offer of the money, so that the creditor can take it. lb. ; Cashman v. Martin, 50 How. 337 ; Camp v. Simon, 34 Ala. 126 ; Englander v. Rogers, 41 Cal. 420. And having money in bank sufficient to meet a note will not support a plea of tender, unless the fund was in some way appro- priated to the note. Myers v. Byington, 34 Iowa, 205. A creditor may dispense with the production and offer of the money ; "and if, on an offer of a sufficient sum, he refuses to accept it, unless the debtor will also pay another demand, this will waive an actual offer of the money, and be a valid tender. Douglas v. Patrick, 3 Term E. 683. And see Cornwell v. Haight, 21 N. T. 462. But where a creditor refuses to receive the sum actually due, on the ground that he claims a larger sum, this will not dispense with an actual offer, by the debtor, of the amount really due. Dunham, v. Jack- son, 6 Wend. 22, 34 ; Kraus v. Arnold, 7 J. B. Moore, 59 ; Thomas V. Evans, 10 East, 101. And where a creditor, on being informed by a person that he had DEFENSES. 887 Tender. — Maimer of tendering. come to make a tender, referred him to his attorney, saying his oifice was open, and it was but a step, without, however, refusing to receive the money, or interposing any objection, or intimating in any way that the presentation of the money was not required, this was held not to be a waiver of the production and offer of the money. Btrorig v. Blake, 46 Barb. 227. So, if a creditor calls upon his debtor to receive payment, and while he is counting the money the debtor tells him that his claim is extortionate, he is justified in leaving the premises, and though the money is laid out before him, it is no tender. Harris v. Muloch, 9 How. 402. But a tender of money, which the person to whom it is tendered refuses to accept, but, upon it being left with him against his wish, af- terward refuses to give up, is sufficient. Rogers v. Butter, 11 Gray, 410. The general rule is, that a tender must be without qualifications or conditions ; and this is especially the case where the offer of the money is accompanied by qualifications, or clogged with conditions, to which the creditor may reasonably object. Flake v. Nuse, 51 Texas, 98 ; Cash- man V. Martin, 50 How. 337 ; Heelas v. Slevin, 53 id. 356 ; Roose- velt V. BuWs Head Bank, 45 Barb. 579. And, if a tender is made by a debtor to his creditor, of a specified sum, even by an actual produc- tion, and a manual offer of the money, it will be invalid if it is tendered in full settlement and discharge of all demands which the creditor holds against him. Wood v. Hitchcock, 20 Wend. 47 ; St/rong v. Sar- vey, 3 Bing. 304. So a tender of a certain sum, accompanied by a de- mand of a receipt in full of all demands, is clearly invalid. Glasscott v. Day, 5 Esp. 48 ; Thayer v. Brackett, 12 Mass. 450. The principle upon which a tender has so frequently been held invalid, when a receipt in full was demanded, is not for the reason that a mere receipt was de- manded, but because a particular sum was offered in full payment. And see Oheminant v. Thornton, 2 Carr. & Payne, 50 ; Peacock v. Dicker- son,, id. 51, note. And it is doubtful whether any case, or at least any well-considered case, has gone so far as to hold that a tender otherwise valid, would be bad, merely because a receipt was requested for the sum actually tendered. See Richardson v. Jackson, 8 Mees. & Wels. 298. Such a request cannot be construed into a condition or qualification to which any creditor could reasonably object ; and it, therefore, differs materially from a tender accompanied by a demand of a receipt in full, or a tender of a particular sum in full satisfaction of the creditor's claims or demands, even though no receipt be demanded. By accept- ing the money under such circumstances, the creditor would be barred from a further recovery, upon the ground of an accord and satisfaction. Ante^ 875. But a mere receipt for the sum actually paid could have 888 DEFENSES. Tender. — Manner of tendering. no such effect. Still, notwithstaading this view of the matter, the courts enforce the rule quite inflexibly, that there shall be no condi- tions accompanying the tender. And, therefore, a tender, upon condi- tion that certain securities, to which the debtor is not entitled, shall be surrendered to him, is defective. Broohlyn Bcmk v. De Orauw, 23 Wend. 342. So a tender of the amount due upon a note, made upon the condition that the holder will ratify an arrangement which has been made concerning another matter, is bad. Eddy v. G'B.a/ra, 14 Wend. 221, 224. And see Harris v. Muloole, 9 How. 402. A tender of the amount due upon a promissory note secured by a mortgage on real estate, made upon the condition that such mortgage shall be released or canceled, is insuflBcient. Storey v. Krewson, 55 Ind. 39T ; S. C, 23 Am. Eep. 668. So, a tender of the amount due upon a note, made upon the condition that the holder will dismiss an action against the maker in no way connected with the note, is bad. Itose v. Duncan, 49 Ind. 269. An exeeptioti to the rule, that a tender must be unconditional arises where the debt is upon negotiable paper ; and, therefore, the indorser of a negotiable note may insist upon a surrender of the note to him as a condition of its payment. Wilder v. Seelye, 8 Barb. 408. So the ac- ceptor of a bill of exchange is not bound to pay it unless the holder produces the biU, and offers to give it up on payment of the amount due upon it. Hansard v. R6bim,son, 7 Bam. & Ores. 90. So the maker of a negotiable promissory note may require its delivery to him as a condition of its payment. Smith v. Rockwell, 2 Hill. 482 ; Vol. I, T93. So where a negotiable note is made by two persons jointly, if either of them pays the note, he is entitled to the possession of the note on pay- ment thereof, so that he may use it as a voucher as against the other joint maker. Qahoon v. Bank of Utica, 7 K. Y. 486, 489. But where the holder of the bill of exchange has other claims upon it, against other parties than the one making the tender, the latter when making a ten- der can only require an exoneration of himself to be indorsed on the bin, and he is not entitled to its possession. Hargoiis v. Lahens, 3 Sandf. 218. Where a tender is acdOmpanied by a condition on which the debtor has a right to insist, and to which the creditor has no right to object, such a condition does not vitiate the tender. Wheelock v. Tanner, 39 N. Y. 481. And the question as to whether a tender was made condi- tionally or not is for the juiy. Marsden v. Goole, 2 Carr. & Kir. 133. An offer to pay under protest the sum claimed is held to be a good tender. Scott v. tfxbridge, etc., By. Co., L. E., 1 C. P. 596. DEFENSES. 889 Tender. — Manner of tendering. Where the debtor's indebtedness consists of one entire sum, he must tender the entire amount, since the creditor is not bound to receive a part of his debt. Bixon v. Glaric, 6 C. B. 366, 377. And the innocent mistake of a debtor in tendering a sum less than the actual debt is the debtor's misfortune, and does not affect the cred- itor's right to recover the balance unpaid. Patnote v. Sanders, 41 Yt. 66. And see Helphrey v. Chicago, etc., H. li. Co., 29 Iowa, 480. This rule, however, does not compel a debtor to tender all that he owes to his creditor, since he may owe him several distinct debts ; and if they are entirely separate, as in the case of several promissory notes, bills of exchange, bonds, or separate sums of money otherwise distinct, the debtor has a right to . elect such of them as he is willing to pay, and make a tender of them, omitting the others. The debtor must be careful to tender enough to satisfy the creditor's debt ; and where the debt draws interest, the entire sum due, either as principal or in- terest, must be tendered. Li/vingston v. Harrison, 2 E. D. Smith, 197. But if the contract is silent in respect to the payment of interest, a tender of the money without interest is good. Connell v. Mulligan, 21 Miss. 388. Where a tender is made t(5 a creditor upon an entire demand for a sum of money, the debtor cannot deduct from this sum the amount of a counter demand which he may have against the creditor and tender the balance which he may deem due. Searles v. Sadgrave, 4 Ell. & Bl. 639 ; 85 Eng. Com. L. E. 639. And see Hartley v. Tatham, 2 Abb. Ct. App. 333. An answer of set-off and a plea of tender are defenses differing widely in their nature and effect, and a plea of tender cannot be supported by proof of a tender of a promissory note due from the plaintiff to the defendant. Cary v. Bancroft, 14 Pick. 315. The lien of a mortgage cannot be discharged by the tender of a sum less than the whole amount due ; and this rule is not affected by the fact, that a part of the sum due upon the mortgage belongs to the person to whom the tender is made, and the residue to some other person for whom the mortgage is held in trust. Graham v. Linden, 50 N. T. 547. A tender of a gross sum upon several demands is sufficient, without designating the amount tendered upon each. Thetford v. HiMoj'd, 22 Yt. 440. And when a tender is made which is not entirely sufficient in amount and the amount due is not known to the person making the tender, but is within the exclusive knowledge of the person to whom the ten-der is made, and who refuses to make known the amount due, and there are facts tending to show a waiver of the actual production of a sum greater than that tendered, it is not error for the court to de- 112 890 DEFENSES. Tender. — Manner of tendering. cline to hold, as a matter of law, that the tender is insufficient. Nelson V. Mdbson, 17 Minn. 284. In making payments it is sometimes impos- sible to make the exact change, owing to the value and the divisions of the currency, and in such cases the law regards the fractions as trifles not to be taken into the account. But if the sum is large enough to be discharged by the current coin, or the legal currency in common use, it is not a trifle, and it cannot be disregarded, but must be tendered, or the tender will be invalid. JBoyden v. Moore, 5 Mass. 365. And see Sj>encer v. Tooker, 21 How. 333 ; S. C, 12 Abb. 353. A tender of a larger sum than the amount due may, in some cases, be valid ; and where the sum tendered consists of specie, the tender will not be rendered invalid by the fact that the sum tendered was larger than the debt. Subbard v. Chenango Banh, 8 Cow. 88 ; AsfLey v. Rey- nolds, 2 Strange, 916 ; Waders Case, 5 Eep. 115. But if the tender is made in paper money, a tender of a bill consider- ably larger in amount than the debt, and requiring the payment of the change by the creditor, has been held to be invalid. And a tender of a £5 bank note in payment of a debt of £3 10s., and requesting the creditor to make the change and return the balance, was held to be a bad tender. Betterbee v. Davis, 3 Camp. 70. And see Robinson v. Cook, 6 Taunt. 336 ; Blow v. Russell, 1 Carr. & Payne, 365. But if the creditor does not object to the request for change, but claims that more is due than the whole amount tendered, and refuses to receive the tender for that reason alone, the tender is good. BlacTe v. Smith, Peake, 88 ; Cadman v. Lubbock, 5 Dowl. & Pyl. 289 ; Saunders v. Graham, Gow. 121. And the rule is the same if the creditor refuses the tender merely on the gi-ound that the debtor will not pay another and distinct debt with the surplus, or because such debtor will not fix his own counter-claim against the creditor at a cer- tain sum. Bevans v. Rees, 5 Mees. & Wels. 306. And it is a general rule that if the creditor refuses to receive money tendered on account of some objection other than that relating to the manner in which it was made, as on the ground that the amount is insufficient, or any other similar ground, this will be deemed a waiver of any objections except those specifically made. Oole v. Blake, Peake, 179 ; Richardson v. Jackson, 8 Mees. & "Wels. 298 ; Bull v. Pa/rher, 2 Dowl. (N. S.) 345: A tender may be waived or dispensed with by words or acts, and may be excused by circumstances or by omissions of the party to whom it should otherwise have been made. Mattocks v. Young, 66 Me. 459. If a party designedly absent himself from home, for the fraudulent purpose of avoiding a tender, he cannot object that no tender DEFENSES. 891 Tender. — Manner of tendering. was made. Southworth v. Smith, 7 Cush. 391 ; Hoag v. Pa/rr, 13 Hun, 95. So, a party who declares positively, when an offer is made to pay him, that nothing is due him, and that he will accept no money, thereby effectually excuses any tender, and is not entitled afterward to object that money which he had declared iu advance he would not take, was not particularly counted out and presented to him. Lacy v. Wilson, 24 Mich. 479. And see Wesling v. Noonan, 31 Miss. 599 ; Brewer v. Fleming, 51 Penn. St. 102 ; Ashhurn v. Poulter, 35 Conn. 553. And the refusal to receive an amount proffered, on the ground of insufficiency, is a waiver of any informalities in a tender. Whelcm V. Reilley, 61 Mo. 565. And in general, when a party places his refusal to accept a tender on certain specific objections, he cannot, after action commenced, raise other objections, trifling in their character, and which could easily have been remedied at the time. Stokes v. Reohnagel, 6 Jones & Sp. 368 ; Adam,s V. Helm, 55 Mo. 468. But where a debtor offers to pay a debt, with the ability to do so, and the creditor proposes to let it remain, which proposal the debtor accepts, and retains the money, this is a waiver by the debtor of his tender, and he cannot set it up in his defense. Terrell v. Walker, 65 K C. 91. A strictly legal tender may be waived by an absolute refusal to receive the money, or to do the act required, upon the principle that no man is bound to perform a nugatory act. Stone v. Sprague, 20 Barb. 509 ; Bellvnger v. Kitts, 6 id. 273. If a carrier of goods, refuses to deliver them until his freight is paid, and claims a lien greater in amount than he is entitled to, the mere assertion of this lien, un- accompanied by any other act, will not obviate the necessity of a ten- der, for it may be that the right amount would be accepted ; but where the carrier absolutely refuses to deliver up the goods unless a claim to which he is not entitled is discharged, saying, in effect, " Do what you will ; tender any amount you please ; unless it be the whole of my un- lawful demand, I will not accept it, nor surrender your property," then the law dispenses with the idle ceremony of making a tender which the claimant, in advance, declares he will not accept. Hoyt v. Sprague, 61 Barb. 497. It is not sufficient that the debtor was at one time ready and willing to pay the debt, but he must show that he always since has been, and that he still is willing to pay ; and therefore the effect of a tender will be effectually destroyed if the creditor can show a demand of a fulfillment of the contract, at the proper time, and a refusal by the debtor to com- 892 DEFENSES. Tender. — The thing tendered. ply with the deinaud. Dixon v. Clark, 5 0. B, 365 ; Cotton v. God- wwiy 7 Mees. & "Wels. 147 ; Manny v. Harris, 2 Johns. 24 ; Car7' v. Miner, 92 111. 604. And where a proper tender is made by two joint debtors, wbich was refused, yet it was held that a subsequent demand of the amount from one of the debtors, invalidated the tender as to both. Pei/rse v. Bowles, 1 Stark. 323. But a demand by a creditor for more than the real debt will not affect the tender, where the excess demanded was for another debt justly due to him from the debtor. Diooon v. Clarh, 5 C. B. 378 ; Brandon V. Newington, 3 Q. B. 915 ; HesTeeth v. Fawcett, 11 Mees. & Wels. 356. The thing tendered. "When a debt is payable in money, nothing else is a lawful tender in discharge of the obligation. The Constitution of the United States provides that no State shall make any thing but gold and silver coin a tender in payment of debts. Const. TJ. S., art. 1, § 10. The act of Congress of the 2d of April, 1792, provides that all gold and silver coins struck at the mint shall be lawful tender in all payments. 1 U. S. Stat, at Large, 250, § 16. By the act of Congress of the 3d of March, 1843, the following foreign gold coins are receiv- able by weight for the payment of all debts and demands, at the rates following, viz. : The gold coins of Great Britain, of not less tnan nine hundred and fifteen and one-half thousandtbs in fineness, at ninety- four and six-tenths cents per pennyweight; and the gold coins of France, of not less than eight hundred and ninety-nine thousandths in fineness, at ninety-two and nine-tenths cents per pennyweight. And by the same act, the following foreign silver coins are receivable by tale, for the payment of all debts and demands, at the rates following, viz. : Tlie Spanish pillar dollars, and the dollars of Mexico, Peru, and Bolivia, of not less than eight hundred and ninety-seven thousandths in fineness, and four himdred and fifteen grains in weight, at one hundred cents each ; and the five-franc pieces of France, of not less than nine hun- dred thousandths in fineness, and three hundred and eighty- four grains in weight, at ninety-three cents each. 5 id. 607. But, notwithstanding the prohibition in the Constitution of the United States which declares that no State shall have the power to make any thing but gold and silver a legal tender for the payment of debts, the same language does not apply, in terms, to the government of the United States. And the enormous expenditure of money required for the purpose of carrying on the late war rendered it necessary for the government to employ some other means of payment than gold and silver, in the discharge of its current expenses. DEFENSES. ' 893 Tender. — The tiling tendered. By an act of Congress, passed February 25, 1862, Laws of Con- gress of 1862, chap. 33, the secretary of the treasury of the United States was authorized to issue $150,000,000 of United States treasury notes, not bearing interest, payable to bearer, at the treasury of the United States and of a denomination of not less than $5 each. The act further provides, that such notes shall be receivable in pay- ment of all taxes, internal duties, excises, debts and demands of every kind due to the United States, except duties upon imports, and of all claims and demands against the United States of every kind whatso- ever, except for interest upon bonds and notes, which shall be paid in cash, and shall also be lawful money and a legal tender in payment of all debts, public and private, within the United States, except duties upon imports and interest as aforesaid. This act has been held by the courts of this State to be valid and constitutional. And it has been held that a tender of this currency in payment of a debt due from one individual to anothei", or by a bank- ing corporation in payment of its debts to individuals, is a valid tender. Metropolitan BanTc v. Yan Dych, 27 N". Y. 400. And the rule is the same even though the debt was incurred prior to the passage of the act of Congress, on the 25th February, 1862. Hague v. Powers, 89 Barb. 427 ; Meyer v. Moos^elt, 27 N". Y. 400 ; see Meyer v. Roosevelt, 1 "Wall. 512 ; Knox v. Lee, 12 id. 457 ; Hepburn v. Griswold, 8 id. 605 ; Harris v. Jex, 55 N. Y. 421 ; S. C, 14 Am. Eep. 285 ; Bodes V. Bronson, 34 N. Y. 649 ; By another act of Congress, passed June 30, 1864, Laws of Con- gress, 1 864, chap. 172, the secretary of the treasury was further author- ized to issue $200,000,000 in treasury notes, of any denomination not less than $10, payable at any time not exceeding three years from date, or, if thought more expedient, redeemable at any time after three years after date, and bearing interest not exceeding the rate of seven and three-tenths per centum, payable in lawful money at maturity, or, at the discretion of the secretary, semi-annually. And such of those notes as shall be made payable, principal and in- terest, at maturity shall be a legal tender to the same extent as United States notes for theil* face value, excluding interest, and may be paid to any creditor of the United States at their face value, excludino' interest or to any creditor willing to receive them at par, including interest. The same act further provides, nor shall any treasury note bearing in- erest, issued under this act, be a legal tender in paiyment or redemp- 894 DEFENSES. Tender. — The thing tendered. tion of any notes, issued by any bank, banking association, or banker, calculated or intended to circulate as money. Section five of the same act provides for a fractional currency, as follows : " The secretary of the treasury may issue notes of the frac- tions of a dollar as now used for currency, in such form, with such in- scriptions, and with such safeguards against counterfeiting as he may judge best, and provide for the engraving and preparation, and for the issue of the same, as well as of all other notes and bonds, and other obligations, and shall make such regulations for the redemption of such fractional notes and other notes when mutilated or defaced, and for the receipt of said fractional notes in payment of debts to the United States, except for customs, in such sums, not over $5, as may appear to him expedient ; and it is hereby declared that all laws and parts of laws applicable to the fractional notes engraved and issued as herein authorized apply equally and with like force to all the frac- tional notes heretofore authorized, whether known as postage currency, or otherwise, and to postage stamps issued as currency ; but the whole amount of all notes or stamps less than $1 issued as currency shall not exceed $50,000,000. " According to the laws of Congress, and the decisions of the courts of this State, any of the treasury notes, or of the fractional currency issued by authority of the United States general government, is a legal tender for such debts as it declares may be paid in such currency. But where a contract by its terms clearly implies that the payment should be made in gold or silver, or coined money, a tender of United States treasury notes on such a contract is not a vahd tender. Vilhac v. Bwen, 23 Cal. 410; Rankin v. Demott, 61 Penn. St. 263 ; McGoon V. Shirh, 54 111. 408 ; S. C, 5 Am. Rep. 122 ; Trebilcock v. Wilson, 12 Wall. 687 ; Maryland v. BalUmore, etc., R. R. Co. 22 id. 105. Since the passage of the legal-tender acts, when a person promises, for any valid consideration, to return gold or silver instead of the National currency, he is bound to return those specific things precisely as he would be boimd to return a specific quantity and quality of any other commodity, if he had promised to do so for a valid consideration. Bamk of GommoTmoeaUh v. Ya/ri/ Yleck, 49 Barb. 508. And see 7 Act. and Def. 586. It is sometimes said that a tender of solvent bank bills is a good tender; and that impression is founded upon the language sometimes used by the courts. In the case of the U. 8. Bank v. Bank of Georgia, 10 Wheat. 333, 347, Stoet, J., said : " Bank notes constitute a part of the common currency of the country, and •ordinarily pass as money. DEFENSES. 895 Tender. — The thing tendered. When they are received as payment, the receipt is always given for them as money. They are a good tender as money, unless specially objected to." This language, however, is very far from declaring bank bills a legal tender in payment of debts. It is said that they are good if not specially objected to ; but that does not at all show that they are a legal tender. If gold or silver is tendered, that will be a legal tender, "whether objected to or not ; and nothing is strictly a legal tender unless the party offering it can insist that it is a valid and legal tender of itself, as^ in the case of a tender in gold or silver, or, in a proper case, in treasury notes or fractional currency, under the acts of Congress. Thorn- dike V. United States, 2 Mason, 1. It is true that a tender in bank bills has sometimes been held to be valid, but it was not upon the ground that such bills are of themselves a legal tender. A tender in solvent current bank bills may be sufficient in case the party to whom they are tendered makes no objection to the kiud of money offered, but puts his objection upon a different ground, as that it is not enough, or some other similar objection. In such a case the tender may be sustained upon the principle that the party has waived any objection as to the kind of money, by putting his objection upon another ground. And see ante, 891 ; £all v. Stanley, 5 Yerg. 199 ; Wheeler v. Knaggs, 8 Ohio, 172 ; Brown v. Dysinger, 1 Kawle, 408 ; Snow v. Perry, 9 Pick. 542. And a tender of a bank check in payment of a debt, where there is a waiver of all objection to the medium of payment and the only objection is to the amount, is a good tender. Jennings v. Mendenhall, 7 Ohio St. 257 ; Jones v. Arthur, 8 Dowl. P. 0. 442 ; Mitchell v. Vermont Copper Mining Co., 8 Jones & Sp. 406; .S. C. affirmed, 67 N. T. 280. So there may be an agreement which will relieve a party from ten- dering specie. And where A. covenanted to pay B. $300 on a speci- fied day, on which B. covenanted to convey a farm to A., and before the day for the payment B. agreed with A., to receive the $300 in bank bills, which A. tendered on the day according to the agreement, but which B. refused to receive on the ground that such bills were not a legal tender ; but in an action by A. against B. for his refusal to convey the land as agreed, it was held that the agreement to receive the bank bills was a waiver of a tender in gold or silver, and that the tender in bank bills was valid. Warren v. Mains, 7 Johns. 476. A creditor is not bound, nor is he even at liberty, to accept in pay- ment money which the debtor has fraudulently obtained; and, there- fore, a tender of money, obtained by the president of a bank by em- 8'96 DEFEKSES. Tender of chattels. bezzlement, is not a lawful tender by him to his creditor. Reed v. Bank ofNewhurgh, 6 Paige, 337. Tender of chattels. The law in relation to a tender of articles, payable by the terms of a chattel note, has been sufficiently discussed already. Yol. I, T22-727. And the same general principles are appli- cable to any other contract, by virtue of which a party is bound to deliver chattels. Where the article to be tendered is not separate, but mixed with other articles of like kind, there must be such a separation as will en- able the creditor to make his own. What is such a separation as to pass the title, when that is necessary, see cmte, 15 to 18. The gen- eral rule is, that the tender will not be valid unless it is made in such a manner that the creditor need not do any thing more than to accept the property to vest the title in him. But still it is not necessarj' in all cases that the property should be so separated that it could be de- scribed and identified in an action of replevin or trover ; because if a party agreed to deliver twenty-five bushels of grain at a specified time and place, and he carried fifty bushels in one mass, in his sleigh or wagon, to his creditor, for the purpose of measuring out the proper quantity, this would be sufficient if the creditor was present, so that a delivery could be made to him ; and in such a case he could properly allege in his answer, " that he always has been and now is ready " to deliver such grain. Like a tender of money, a tender of chattels ought to be without qualifications or conditions or it will be invalid ; and the tender should be made in such a way that the party may have a reasonable opportunity of inspecting the chattels and of ascertaining whether what he has bar- gained for is presented for his acceptance. Isherwood v. Whitmore, 10 Mees. & Wels. 757; 11 id. 347. :So, too, like a tender of money, it may be made by an agent ; though if such agent has instructions from his principal not to deliver the chattels to the other party unless he will cancel and deliver up the con- tract, this is not a good tender, even though the agent had the chattels at the right time and the proper place. Robinson v. Batohelder, 4 N. H. 40. It is a good defense, pro tanto, to such a contract, that the plaintiff accepted a part of the articles before the day specified in the contract ; or that there was an agreement between the parties, which may be by parol, that the chattels should be delivered at another time and place, and that the plaintiff was there, wholly ready to deliver tliem. lb. Or, that the party knew that the articles were delivered at an- DEFENSES. 897 Tender of chattels. other time and place, and did not dissent or object. Flagg v. Dryden, 7 Pick. 53. Where the promise is in the alternative, either to pay a specified sum, or to deliver certain chattels, at a particular time, the right of election belongs to the promisor ; and he may pay the money or deliver the chattels at his option, provided he makes his election and the pay- ment or delivery before the day for performance has passed. Plowman V. Riddle, 7 Ala. 775 ; Stewwrt v. Donelly, i Yerg. 177 ; Orr v. Wil- liams, 5 Humph. 423; Oilman v. Moore, ■I'i: Vt. 457. But, if that day is permitted to pass without any election by the promisor, this right of election is gone, and the promisee has an absolute right to the money, and may maintain an action for its recovery. lb. So, where chattels are to be dehvered on a specified day, at a desig- nated place ; or where the promisor is boimd to tender the chattels to the promisee, if he neglects or refuses to do so, the right to insist upon a payment in chattels will be lost, and the promisee may recover the money instead. Yol. I, 722 ; Townsend v. Wells, 3 Day, 327. A contract to deliver a particular quantity of chattels, at a specified time and place, requires the promisor, as a general rule, to deliver the entire quantity at that time. And where the delivery is to be made upon the happening of a specified event, as the arrival of a particular vessel in port, with the chattels, the rule is the same, provided the chat- tels are brought by such vessel ; but if a part only of the chattels arrive, tlie promisor is not boimd to deliver, nor the promisee to receive, a portion of them. Ante, 4A. Where, by the terms of the contract, certain specific articles are to be delivered at a certain time and place, in payment of an existing debt, this contract is fully discharged, and the debt is paid by a complete and legal tender of the articles at the time and place, although the promisee was not there to receive them, and no action can be thereafter maintained upon the contract. Slingerland v. Morse, 8 Johns. 474 ; Mitchell V. Merrill, 2 Blackf . 87 ; Coit v. Houston, 3 Johns. Cas. 243. And see Lamh v. Lathrop, 13 Wend. 95. But the mere absence of the promisee will not, of itself alone, dis- pense with a legal tender of the articles, which is made by separating and designating the articles so that the promisee can distinguish them from all others of a similar character. Newton v. Qalhraith, 5 Johns. 119 ; Barns v. Oraham, 4 Cow. 452. In the case of chattels which are to be delivered at a time and place certain, the tender may be made at the proper time and place, even though the promisee be absent at the time ; but the articles must be properly separated and set apart as in 113 898 DEFENSES. Tender. — Keeping tender good. any other case, or the tender will be invalid, lb. As to the quality of articles which must be delivered, much will depend upon the nature of the contract. If articles of a particular style or quality are specified in the contract, such articles must be delivered or tendered. And, un- der a contract to deliver a cow with a calf by her side, a tender of a cow with calf is not sufficient. Spencer v. Tilden, 5 Cow. 14i. As to the articles required in the absence of a special agreement, see ante, 49, 50. So, where the contract is to deliver goods or wares, which are articles of merchandise, and belong to a certain trade, this will be construed to mean goods or wares of the kind, fashion and quality in common use in that trade, and not such as are antiquated and unsalable. Dennett v. Short, 7 Greenl. 150. And tlie kind and quality of the goods must be such as would be requisite to make a sale of them legal ; and if a statute requires all leather to be stamped in a particular manner, a tender of unstamped leather will be invalid. Elhins V. Parkhurst, 17 Yt. 105. And the rule is the same where the statute requires that the article shall be packed in a specified manner. Clark V. Pvnney, 7 Cow. 681. Where a contract provides for the payment of a debt in specific articles, as by the note of a third person, and the debtor makes a valid tender of the articles agreed, such tender transfers to the creditor the title of the articles tendered, and discharges the debt notwithstanding the creditor refused to accept the property. Des Arts v. Leggett, 16 N. Y. 582 ; Coit v. Houston, 3 Johns. Cas. 243 ; Lamb v. Lathroj>, 1 3 "Wend. 95 ; Billings v. Vanderieck, 23 Barb. 546. But such ten- der and refusal do not discharge the debtor from all responsibility as to the care of the articles ; for he will be held to have them as a bailee, at the risk and expense of the creditor. lb. ; Sheldon v. Skinner 4 Wend. 525. Bulky articles will not be permitted to be brought into court, even on a plea or answer of tender. Shotwell v. Wendover, 1 Johns. 65. Keeping tender good. The question whether a tender is of any effect where the money tendered was afterward used by the party making the tender, or mingled with his own money, depends upon the purpose for which the tender was made and the nature of the relief sought to be derived from the act. Where a tender has been duly made of the full amount due upon a mortgage, it will discharge the lien of the mortgage and be a good de- fense against its enforcement without the tender being kept good, TuthiU V. Morris, 81 E". T. 94, But where the mortgagor comes into a court of equity asking, as affirmative relief, that the mortgage be de- DEFENSES. 899 Tender. — EfEect of a tender. creed to be surrendered or extinguished because of a tender of the full amount due thereon, he must show that he has kept his tender good from the time it was made. lb. See Dodge r. Fearey, 19 Hun, 277. In one case it was doubted whether a tender was good when it appeared that the money was afterward used by the debtor in his own business and mingled with his other money ; and it was said that the debtor should l^eep the money always ready to pay when demanded, and if the tender was in bills and not objected to, that the same bills should be brought into court; that this would not be necessary to discharge a lien, but it might be to deprive a creditor of interest on his debt. Roose- velt V. BulVs Head Bank, 45 Barb. 579. See, also, Gray v. Angler, 62 Ga. 596. Other cases hold that it is the duty of the debtor to keep the money safely so as to be prepared at all times to produce it when required to keep his tender good. Bulsifer v. Shepard, 36 111. 513 ; Call T. Scott, 4 Call (Va.) 402. But that the debtor is at liberty to use it as his own, provided he is at all times ready to pay the debt in cur- rent money when requested. Ourtiss v. Greenbacks, 24 Yt. 536. And that it is not necessary to prove, under a plea of tender, that the identi- cal money tendered was brought into court. Colby v. Stevens, 38 N". H. 191. So it is held that in tendering back money for the purpose of rescinding the arrangement under which it had been received it is im- material whether the bills tendered back are the identical ones or not, since in law one dollar in money is the equivalent of any other dollar. Michigan, etc., B. B. Co. v. Dunham, 30 Mich. 128. After a tender of chattels it is not necessary for the debtor to have the property always ready. Smith v. Loorms, 7 Conn. 110 ; LebaUster V. Nash, 24 Me. 316. Effect of a tender. There are some cases of a tender of chattels, in which a proper tender of the articles wiU discharge the debt, so that the debtor will afterward retain them as a mere bailee. Ante, 898. But a different rule prevails in relation to the tender of money in pay- ment of a money debt. And in such a case, a tender, however formal and legal, will not extinguish the debt, though it wiU stop the running of interest, and protect the debtor from subsequent costs. Baymond V. Bearnard, 12 Johns. 274; Manny v. Harris, 2 Johns.' 24; Kelly V. West, 4 Jones & Sp. 304; Knight v. Beach, 7 Abb. (K S.) 241; Hills V. Place, 36 How. 26 ; S. C, 5 Abb.(N. S.) 18 ; 7 Eob. 389 ; 48 N. Y. 520;8 Am. Eep. 568. 'Q^it eeQ Canastota and Morrisville Plank- road Co. V. Pa/rkill, 50 Barb. 601. In those cases in which a tender does not extinguish the debt, nor bar an action upon itj the debtor must pay the money into court, with his plea or answer of tender, or 900 DEFENSES. Tender. — Manner of pleading tender. the defense will be unavailing so far as liability for interest and costs is concerned. Oray v. Green, 9 Hun, 334 ; Simpson v. French, 25 How. 464 ; Roosevelt v. New York and Harlem R. R. Co., 45 Barb. 554 ; S. C, 30 How. 226; Becher v. Boon, 61 N. T. 31 Y; Gilhe-son v. Smith, 15 W. Va. 44. The object of payment into court is to place the money tendered where the plaintiff will be sure to get it. It then becomes the plaintiff's money, and the defendant cannot dispute his right to it. If the tender is established, judgment goes against the plaintiff, and he takes the money tendered for his claim, and the de- fendant recovers costs of the action. Becker v. Boon, 61 N. T. 317, 322. When a tender has once been properly made before the commence- ment of an action, which was unsuccessful, and a second action is commenced for the same cause, a second tender is not necessary. Thompson v. Wood, 1 Hilt. 93. Where a tender is necessary, for the purpose of enabling the tender- ing party to maintain an action, the law will regard the tender as equivalent to a performance, for the purpose of sustaining an action, but not for the pui-pose of establishing the measure of damages. Shan- non V. Comstock, 21 Wend. 457. A tender of money is an admission of a debt to the extent of the amount tendered, and the party tendering it will generally be liable for the amount tendered. Eaton v. Wells, 82 N. T. 576 ; Johnston v. Columbian Ins. Co., 7 Johns. 315 ; Spalding v. Yandercook, 2 Wend. 431 ; Roosevelt v. New York and Harlem R. R. Co., 45 Barb. 554; Fisher v. Moore, 19 Iowa, 84 ; Monroe v. Chaldeck, 78 111. 429. And see Sweetland v. Tuthill, 54 111. 215. Manner of pleading tender. When a tender is relied on as a de- fense to an action for the breach of a contract to deliver chattels, it is sometimes the case that the defendant relies upon a tender as a perfect defense to any cause of action, as in those cases in which a tender ex- tinguishes the debt. Ante, 898. In other cases, as in those for the payment of money, the object of the defense is to relieve the party from the payment of damages and costs, and, in some cases, to recover the costs incurred in the defense. This defense, like that in every other case, must show such facts as will legally constitute a defense, so far as it is pleaded as such. And the facts alleged must be such as to show that the particular tender re- lied on was properly made. If the tender was one of chattels or specific articles, it ought to appear what the contract was, and then such facts should be alleged as show a performance or compliance with DEFENSES. 901 Tender. — Manner of pleading tender. the terms of the contract set out in the answer. A proper precedent will be given in a subsequent part of this work. An answer of tender should show not only that the money was properly tendered, but that it has been kept good, or in other words, that the debtor was not only willing to pay at the time of tendering the money, but that he always has been and now is ready and willing to pay it. Wilder v. Seelye, 8 Barb. 408; Ealdenly v. Tuke, Willes, 632 ; Oiks V. Hart, Salk. 622; WMtlock v. Squire, 10 Mod. 81; Kortright V. Cady, 23 Barb. 490 ; Roosevelt v. BuWs Head Bank, 45 id. 579- And the allegation that the debtor has always been ready to pay is a material one, for if it is shown that the creditor demanded the money at a time subsequent to the tender, and payment was refused, this wUl be a perfect answer to the tender, lb. ; Kortright v. Oady, 23 Barb. 490 ; Oarr v. Miner, 92 111. 604. If the defense of tender is relied on because the money was tendered before the action was brought, the answer ought to be accompanied by a payment of the money into court, and if this is not done, the defense will be unavailing. Wilder v. Seelye, 8 Barb. 408 ; Sheriden v. Smith, 2 Hill, 538; Livingston v. Harrison, 2 E. D. Smith, 197; Kortright V. Cady, 23 Barb. 490 ; Roosevelt v. N. T. da H. R. R. Co., 45 id. 554 ; S. C, 30 How. 226 . Not only must the money be paid into court, but the answer must allege that fact ; and if it does not it will not state facts sufficient to constitute a defense and the plaintiff may avail himself of the objection upon the trial. Becker v. Boon, 61 N. Y. 317. And if money is thus paid into court, upon such an answer, it will belong to the plaintiff in all events, without any reference to the ultimate result of the action ; for if a verdict were rendered for the de- fendant, or if the plaintiff were to be nonsuited, the money would nevertheless belong to the plaintiff. Logue v. GiUick, 1 E. D. Smitli, 398; Wood v. Ferry, 1 Barb. 114; Slack v. Brown, 13 Wend. 390. Where a tender is set up in the answer, it will operate as an admis- sion of so much of the complaint as the answer applies to. If the right of action is founded upon the common counts, an answer of tender, with a payment of the amount into court, is an admission that the sum paid in is due on some contract, but not that the defend- ant is liable upon any particular contract upon which the plaintiff may choose to rely. KinghMm v. Robins, 6 Mees. & Wels. 94 ; Stapleton V. Nowell, 6 id. 9 ; Archer v. Mnglish^ 1 Man. & G. 873 ; Cha/rles v. Branker, 12 Mees. & Wels. 743. But, on the other hand, if the complaint is on a special contract, the answer of tender and the payment into court is an admission of the- 902 DEFENSES. Failure of couaideration. cause of action as set forth, though it does not admit the amount of damages which may be therein alleged. Stoveld v. Brewin, 2 Barn. & Aid. 116; Wnght v. Goddard, 8 Ad. & El. 144 ; Yate v. Willan, 2 East, 134 ; Bulwer v. Horne, 4 Barn. & Ad. 132 ; Bennetts. £'rancis, 2 Bos. ,ce, 11 Q. B. 112. It need not be a fear of personal injury to the party executing the contract, to render the contract void, where the relations of the parties DEFENSES. 931 Duress. — When it avoids a contract. are such as to operate like a threat of personal injury, and thus deprive the party of that freedom of will so necessary to a valid assent. A threat to prosecute a husband for an alleged criminal offense, such as embezzlement, and to have him immediately arrested, if made in the presence of the wife, and it so terrifies her as nearly to produce hysterics, will render void a transfer by her of her separate property to secure the amount so alleged to have been embezzled. Eadie v. Slim- mon, 26 N.T. 9. And as a general rule, obligation made by the husband to relieve the wife from duress, or by the wife to relieve the husband, may be avoided, as if the duress operated directly upon the contracting party. £rooJcs v. £erri/hiU, 20 Ind. 97 ; Green v. Seranage, 19 Iowa, 461. See Sharon v. Gager, 46 Conn. 189. But if a husband is justly charged with embezzlement, and his wife executes a conveyance of lands to the person defrauded under an understanding and implied agreement that the husband shall not be prosecuted for the crime, and without any compulsion or other duress than that arising from the circumstances, this will not amount to legal duress. STnith v. Rowley, 66 Barb. 502- On the other hand, if a wife is induced to execute a mortgage, to se- cure the debt of her husband, by means of false and fraudulent charges of embezzlement against the husband, and threats to institute criminal proceedings against him, the mortgage will be void. Singer Mamif- Co. V. Hawson, 50 Iowa, 634. A principal may avoid a deed made by his agent. Gumming v. Ince, 11 Q. B. 112, or by his bailee, Koehler v. Wilson, 40 Iowa, 183, while under duress. And where the wife's signature to an assignment of her interest in a policy of insurance upon the life of her husband was pro- cured from her, under duress of her husband, it was held that such as- signment gave no valid title thereto to the assignee. Fowler v. Butterly, 53 How. 471. See, also, Ban'ry v. Brune, 8 Hun, 395 ; S. C. affirmed, 71 N. Y. 261. And, generally, where the transfer of a chose in action is obtained from the owner by undue influence and coercion, a iona fide purchaser for value from the wrong-doer acquires no valid title thereto. Bmry y . Equit. Life Ass. Soc, 59 N. T. 587; 14 Abb. (K S.) 385, n. See Osborne v. SoVbins, 4 id. 15. There may be a duress of property as well as of the person, and a payment thus exacted can no more be treated as voluntary in the one case than in the other. Peyser v. Mayor, 70 N. Y. 497 ; S. C, 26 Am. Eep. 624. And, therefore, where a bailee is in possession of perishable merchandise, and he exacts more than is due to him as a condition of its delivery to the owner, the money so paid as the necessary means of obtaining the delivery may be recovered back, as a payment made under 932 DEFENSES. Duress. — What does not avoid a contract. duress. Harmony v. Bingham, 1 Duer, 210 ; S. C, 12 N. Y. 99. And see Baldwin v. Li/oerpool & Great Western Steamiship Co., 74 id. 125. The English cases sustained a recovery of the money under similar circumstances. Atlee v. Backhouse, 3 Mees. & Wels. 633, 642 ; Oats v. Hudson, 6 Exch. 346. See ante, 388, 400, 6Y2-5Y6. But they also hold that a duress of goods will not invalidate other contracts. Skeate v. Beale, 11 Ad. & El. 983. In this country, however, a different rule seems to prevail. See Sasportas v. Jennings, 1 Bay, 470 ; Collins v. Westbury, 2 id. 211 ; Nelson v. Sudda/rth, 1 Hen. & M. 350 ; Foshay V. Ferguson, 5 Hill, 158. And see 1 Pars, on Cont. 321, 322 ; Har- mony V. Bvngham, 1 Duer, 210 ; S. C, 12 N. Y. 99 ; Commercial Bank of Rochester v. Gity of Rochester, 41 Barb. 341. If a person is obliged to make a payment to free his goods from an attachment obtained for the purpose of extorting money by one who knows that he has no cause of action, the payment is under duress, and the money paid may be recovered back in an action for money had and received, without proof of the termination of the suit in which the attachment was had. Chandler v. Sanger, 114 Mass. 364 ; S. C, 19 Am. Eep. 367. And see Spaids v. Barrett, 57 Bl. 289 ; S. C, 11 Am. Kep. 10. What does not avoid a contract. "Where there is an actual im- prisonment, as has been already seen, ante, 929, that will be ground of avoiding a contract executed during such imprisonment. So, too, it has been seen that a threat of imprisonment or of personal injury may also be suflScient to produce the same result. But to render a contract void, on the ground of a threatened personal injury, the threat ought to be such as to excite a fear of some grievous wrong, as of death, or great bodily injury, or unlawful imprisonment. It is not every kind of threats, nor every degree of violence, that will invalidate a contract ; they must be such as would naturally oper- ate on a person of ordinary firmness, and inspire a just fear of great injury to person, reputation or fortune. But the age, sex, state of health, temper and disposition of the party, and other circumstances, calculated to give greater or less effect to the violence or threats, must be taken into consideration. The constraint which takes away free agency and destroys the power of withholding assent to a contract must be one which is imminent and without immediate means of prevention, and such as would operate on a person of reasonable firmness of purpose. Miller v. Miller, 68 Penn. St. 486. And see Radich v. Hutohvns, 95 TJ. S. (5 Otto) 210 ; 6 Act. and Def. 650, 656. If the threats were of some trifling injury, DEFENSES. 933 Duress. — What does not avoid a contract. or if under the circumstances they were improbable of execution, as where they were the menaces of a child, they could not justly be held duress. Twpley v. Ta/pley, 10 Minn. 448. So, payment made merely under the belief that it is demanded contrary to law, and under the ap- prehension of legal proceedings, is not compulsory. Town of Ligonier V. AcTcermcm, 46 Ind. 552 ; S. C, 15 Am. Eep. 323 ; Snyder v. Brci- den, 58 Ind. 143. So, mere threats to withhold the payment of a debt which can be recovered by action, Miller v. Goates, 2 Hun, 156; S. C, 4 Sup. Ct. (T. & C.) 429, or to do an injury which may be at once re- dressed by legal process. Miller v. Miller, 68 Penn. St. 486, is not du- ress, lb. Where, however, a seaman was induced to assent to his dis- cbarge upon the payment of a nominal sum from just appi-ehensions of future ill-treatment he was allowed to recover what was justly due him. Bates v. Seabury, 1 Sprague (C. C), 433. Tiiere is no rule of law which prevents a party who owes a debt which th« law will enforce from turning out property to pay it, even though in the contraction of the debt he was guilty of a crime. And where a person makes an agreement by which his property is to be ap- plied to the satisfaction of a debt so contracted it will be valid, where there was at the time no actual imprisonment, nor threat of an un- lawful one which would vitiate the transaction between the parties. KissooTc V. House, 23 Hun, 35 ; Knapp v. Hyde, 60 Barb. 80. Those contracts only which arc made under fear of unlawful imprisonment, and not those made under fear of imprisonment which would be legally justifiable, can be avoided for duress. Eddy v. Herrin, 17 Me. 338 ; Nealley v. Qreerhough, 25 N. H. 332 ; Waterman v. Barratt, 4 Harr. (Del.) 311. And more threats of criminal prosecution do not con- stitute duress without threats of immediate imprisonment. Lester v. Union Manuf. Co., 6 Sup. Ct. (T. & C.) 657; S. C, 1 Hun, 288; Plant V. Gunn, 2 Woods (C. C), 372 ; Baldwim, v. Murphy, 82 HI. 485. And the pressure of public opinion, unaccompanied with peril to life or limb, will not excuse a breach of duty. Hvmiphrey v. Hum- phrey, 78 IS. 0. 396. So, a threat to prosecute for an offense of which the party admits he is guUty is not legal duress which will avoid a contract. Voslurgh v. Brewster, 5 Alb. L. J. 198. But there are cases in which an imprisonment of a party is entirely lawful and justifiable ; and contracts executed, for the purpose of being released from such imprisonment, are entirely legal and will be enforced. A party who is legally arrested in a civil action will be bound by any bond or undertaking which he may execute for the purpose of being discharged from arrest. So, too, a lawful arrest upon an execu- 934 DEFENSES. Estoppel. — What it is. tion issued upon a judgment in a civil action is valid ; and a bond for the jail limits is entirely legal. A bond executed in bastardy cases is valid, even though the party is in custody at the time. Yol. I, 260. So the mere fact that a party was under arrest, on a charge of being the putative father of a bastard child, is not enough of itself to invalidate a marriage with the mother of such bastard. But when in bastardy proceedings, the warrant was returned before another justice than the one who issued it, and he ordered the respondent into custody till he gave a bond, it was held that the bond might be avoided. Fisher Y. ShatUicle, 17 Pick. 252. So, where in bastardy proceedings a justice issued a warrant to a constable in another county, and, being arrested, the defendant promised to marry the complainant, such promise is void. Foy v. Talbert, 5 Cranch (C. C), 124; Ferry v. Bv/rchard, 21 Conn. 598. Where a defendant is arrested in a civil action, and while under such arrest he agrees to submit the subject-matter of the action to ar- bitration as a condition of his discharge from arrest, this will not of itself render the submission void for duress, because the party may still litigate the matter on the merits before the arbitrators. Shephard v. Watrous, 3 Caines, 166. And see Smith v. Stcrm, 1 "Wend. 37; Farmer v. Walter, 2 Edw. Ch. 601. § 28. Estoppel. What it is. There are many instances in which a party is debarred from maintaining an action, or precluded from in- terposing some particular defense, in consequence of some previous acts or declarations on his own part. In such case, he is said to be es- topped from enforcing the action, or from making the defense. The great frequency of the cases in which this principle of law is avail- able will justify a notice of some of the more important cases upon the subject. Numerous definitions of the term may be found, but a practical illustration from the decided cases will generally be found most useful in practice. The most accurate definition of the term, perhaps, is that which declares an estoppel to be an impediment or bar, by which a man is precluded, in law, from alleging or denying a fact, in consequence of his own previous act, allegation or denial to the contrary. In Lovm,sbury v. Depew, 28 Barb. 48, 49, the court ex- pressed its views as follows : " The whole doctrine of estoppel rests upon this foundation, that a party has refused to speak when he ought to have done so, and has omitted to make known important facts, the knowledge of which would have induced a different course of action from what would have taken place if all the facts had been disclosed. Although the doctrine of estoppel is not always carefully expressed, DEFENSES. 935 Estoppel.— Kinds of. — By record. the cases all go upon the assumption that the party estopped is guilty of a false statement, or of a concealment of material facts, at a time when he has an opportunity and is called upon to speak, which repre- sentation or concealment has liad a material influence upon the con- duct of a third party who would now suffer injury without fault on his part, if the real truth were disclosed and allowed to have its legitimate effect." Per Hogeboom, J. See Hawhy v. Qriswold, 42 Barb. 18. The office of estoppels at law is like that of injunctions m equity, to preclude rights that cannot be asserted consistently with good faith and justice, and prevent wrongs from which there might be no adequate remedy. Yon Rensselaer v. Kearney, 11 How. (IT. S.) 297 ; Buck- ingham V. Hanna, 2 Ohio St. 551. And in more recent times, the principle of estoppel has come to be applied to all cases where one by words or conduct willfully causes another to believe in the existence of a certain state of things, and induces him to act on that belief or to alter his own previous position. Bocock v. Pa/vey, 8 id. 270 ; Titus v. Morse, 40 Me. 348 ; Freeman v. Coohe, 2 Exch. 654. Kinds of. An estoppel may arise in either of three different ways : 1. By matter of record, as in the case of an admission in a pleading, or a judgment as res adjudicata ; or, 2. By deed from the party, which is where a person has executed an instrument in writing, under his hand and seal, in which certain facts are stated or recited, and as to these recitals he will be concluded, and not permitted to contradict in a subsequent litigation ; 3. By matter in pais, that is matter of fact. It is in relation to the last-mentioned class that there will be most fre- quent occasions to examine the cases. But each class will be briefly noticed in its appropriate place. By record. The general rule is, that no person is permitted to con- tradict that which is contained in a record to which he was a party. A,. judgment in an action is conclusive on parties and privies ; and, as to real estate, persons who are made parties to a foreclosure suit are es- topped from denying the title of the purchaser at the sale subse- quently made therein. Jaokson v. Hoffman, 9 Cow. 271. But a judg- ment does not estop any but parties or privies to the action ; nor does it estop any fperson from raising, in a subsequent action, questions neither raised or passed upon in the former suit. Knauth v. BoBsOt, 34 Barb. 31 ; Tail v. Tail, 7 id. 228 ; Caiivpbell v. Hall, 16 N. T. 575 ; MasovH s Edcecutors v. Alston, 9 id. 28. A judgment against a party sued as an individual is not an estoppel in a subsequent action in which he appears in a representative capacity. Jennings v. Jones, 2 Kedf. 95 ; Raihbone v. Hooney, 58 llf . T. 463. And see 936 DEFENSES. Estoppel. — By deed. Scholey v. Halsey, 72 id. 578. Where a justice dismisses a cause, on the defendant's objection that the amount in dispute between the parties exceeds the justice's jurisdiction, the defendant is concluded by the decision, in a subsequent action in the Supreme Court, as to the question of costs. Kirk v. Blashfield, 6 Sup. Ct. (T. & C.) 509 ; S. C, 4 Hun, 269 ; Bradner v. Howard, 14 id. 420 ; S. 0. affirmed, 75 N. r. 417; Bailey v. Stone, 41 How. 346. An estoppel by judgment in a former action arises when the same matter was at issue therein and was either litigated by the parties and determined, or it might have been litigated and a decision had upon it. It is not necessary that it shall appear by the record of the prior suit that the particular controversy sought to be precluded was then neces- sarily tried and determined ; it is sufficient if there might have been a judgment in the first action for the same cause alleged in the second. Whether the matter might have been tried in the former action must appear from the record ; if it does so appear, oral testimony is compe- tent in the second action to show that it was litigated, passed upon and determined. Smith v. Smith, 79 N. Y. 634. An estoppel by a former action, effectual as between the parties, arises also in favor of or against those in privity with them. lb. The reversal of the judgment destroys its efficacy as an estoppel. Smith v. Fairfield, 77 K Y, 414. The effect and validity of a former adjudication has been sufficiently discussed in another place. Ante, 735-755. By deed. A person who has conveyed lands cannot claim them in opposition to his own deed, even though that does not amount to a technical estoppel. Jacksonx.Stevens, IQ Johns. 110. So a grantor of lands, with covenants of warranty, is estopped from claiming a re- sultitig trust in them for his own benefit. Mathbun v. Rathbun, 6 Barb. 98. And a deed which is void for maintenance, by reason of an adverse possession, is stOl effectual between the parties, and will estop the grantor, and bar his recovery of the lands by an action of eject- ment. Jackson v. Demsnt, 9 Johns. 55 ; Jackson v. Wheeler, 10 id. 164. Where sureties execute a bond to indemnify another against the consequences of a non-performance of a contract made by their prin- cipal, and the bond recites the execution of the contract, such sureties are estopped from denying the due execution of that contract. J^ee v. Clark, 1 Hill, 56. Recitals in deeds are evidence against the party making them ; and they estop the parties, and their privies, whether in blood, estate, or in \ law. Jackson v. Parkhurst, 9 Wend. 209 ; Hill v. Mill, 4 Barb. 419. DEFENSES. 937 Estoppel. — By deed. So the recital of a fact in a deed is, as against the grantee in such deed, and all persons claiming under him through that deed, evidence of the fact recited therein. The acceptance of the deed operates as an estop- pel upon the grantee and those who claim under him, as against the grantor and his assigns or representatives. Torrey v. JBanh of Orleams, 9 Paige, 649 ; Demeyer v. Legg, 18 Barb. 14 ; Jackson v. Willson, 9 Johns. 92. But the grantee in a deed, whether a quit-claim, a warranty, or a full covenant deed, is not estopped from showing that his grantor had no title. Bigelow v. Finch, 11 Barb. 498 ; Finn v. Sleight, 8 id. 401 ; AveriZl v. Wilson, 4 id. 180. And see Sparrow v. Kingmam,, 1 K Y. 242 ; S. C, 12 Barb. 201. And a recital in a deed is never allowed to operate as an estoppel, unless such recital is in the form of a direct and precise allegation. Dem/psey v. Tylee, 3 Duer, 73. A mere general recital in a deed does not conclude a party. BorstY. Corey, 16 Barb. 136; Huntington-^ . Ha/iiens, 5 Johns. Ch. 23. A grantee, who has assumed the payment of an existing mortgage, is estopped from disputing its existence or validity, Haile v. Nichols, 16 Hun, 3Y. And see Douglass v. Wells, 18 id. 88, or from asserting that his grantor was not personally liable therefor, Thayer v. Marsh, 11 Hun, 501, or that a payment by the holder to the mortgagee was a satisfaction, and not a purchase thereof. Johnson v. Parmely, 14 Hun, 398. "Where a matter is submitted to arbitration, and an award is duly made, the parties will be stopped from controverting it, unless it can be shown to be void. Garr v. Gomez, 9 Wend. 649. The parties who execute an undertaking required by law in the course of an action, will be estopped from denying or contradicting the recitals contained in the instrument. Coleman v. Sean, 14 Abb. 38 ; Levi v. Dorn, 28 How. 217. And where such undertaking was given by the plaintiff in an action, and the sureties were induced to execute it through the influence and fraud of a third person, but without the privity of the plaintiff, such fraud is no defense to an action against the sureties founded upon the undertaking. lb. See, also, Ha/rrison v. Wilkin, 6 Hun, 565 ; S. C. affirmed, 69 N. Y. 412. So, in an action upon an official bond, as in the case of an action by a sheriff upon his deputy's bond, the defendant will be estopped from denying his official character. Hall v. Luther, 13 Wend. 491. So a bond given by a party, who is charged as a putative father in a bastardy 118 938 DEFEXSES. Estoppel. — Not favored as ai- defense. proceeding, is conclusive as to the settlement of the child. Falls v. Belknap, 1 Johns. 486. But a mere recital in a bond cannot operate as an estoppel to the ex- tent of precluding the obligor or his sureties from showing that the bond is entirely void ; because whatever avoids the instrument also avoids the estoppel. Cadwell v. Colgate, 7 Barb. 253 ; Oermond v. PeopU, 1 Hill, 343. Where land is conveyed by a deed, with covenants of title, by a party who does not own it at the time of the conveyance, but who sub- sequently acquires title thereto, he will be bound by his deed, and will not be permitted to say that he had no title, and his privies will be equally bound. Jackson v. Bull, 1 Johns. Cas. 81 ; Jackson v. Murray, 12 Johns. 201 ; Jachson v. Stevens, 13 id. 316 ; Jackso^i v. HvJMe, 1 Cow. 613 ; Bank of TJtica v. MersereoM, 3 Barb. Ch. 528. But where the conveyance is a mere quit-claim deed, or a release, and the grantor subsequently acquires title to the land conveyed, he will not be estopped from enforcing the title subsequently acquired, because there is no estoppel, unless the prior deed contains covenants of warranty. Jackson v. Bradford, 4 "Wend. 619 ; Jackson v. Wright, 14 Johns. 193 ; Dwight v. Peart, 2i Barb . 55 ; Jackson v. Mubble, 1 Cow. 613. Not faTored as a defense. In some of the older books it is declared that this defense is odious. But this expression is quite strong ; and, at the present day, it will be sufficient to assert that the defense is not favored by the courts. The objection to the defense is, that it operates to exclude the truth from being shown ; and, therefore, a strict con- struction will be applied. Lounsiury v. JDepew, 28 Barb. 44. But the extent to which the courts will look with disfavor at this defense, will be to require a plain and full case to be made out. For, when the defense is fully established, by clear and conclusive evidence, its enforcement will operate most beneficially and powerfully in behalf of truth and of justice. And no defense which secures the legal rights of the parties, and at the same time subserves the ends of justice, ought to be looked upon with disfavor, either by individuals or by courts and juries. The cases in which the defense may properly be in- terposed are daily increasing, as the illustrations in this section will show ; and, therefore, the courts must enforce the law in such manner as the exigencies of each case, or the principles of the common law, may require. Reciprocal. The rule is well settled that estoppels must be recip- rocal or mutual ; and one who is not bound by an estoppel will not be DEFENSES. 939 Estoppel. — Keciprocal. — Who not bound by. permitted to take advantage of it. WdUmd Canal Go. v. 3aiha/way^ 8 Wend. 480 ; Dempsey v. Tylee, 3 Duer, 73 ; Lamdng v. Montgomery, 2 Johns. 382; BisseUy.KeUogg, 60 Barb. 617; S. C. aiErmed, 65 K T. 432. And a stranger, who is not bound by an estoppel, will not be permitted to take any advantage or benefit from it. Jackson v. Brinkerhoff, 3 Johns. Cas. 101 ; Jewell v. Harrington, 19 Wend. 471; SunderUn v. Siruthers, 47 Penn. St. 411 ; Murray v. Sells, 53 6a. 257 ; Simpson v. Pearson, 31 Ind. 1. So an admission made to A. in reference to a matter, when it was not made to B. nor made with any intention to influence B., will not operate as an estoppel as it respects the latter. Strong v. Strickland, 32 Barb. 284, 289 ; Reynolds v. Lovmsbury, 6 Hill, 534. And see Penndl v. Hi/nman, 7 Barb. 644. Who not bound by. As an estoppel is founded i;pon words or acts amounting to an agreement, there must be legal capacity to make a valid contract before a party can be estopped by his agreement. Tol. I, 211. An infant is one who is not legally capable of binding himself generally by contracts. Ante, 663. And, in an action founded upon contract, the defendant, if an infant at the time of making the contract, will not be estopped from interposing and availing himself of the defense of infancy, even though he, at that time, represented him- self to be of full age. Brown v. MoCwne, 5 Sandf. 224. So an in- fant who has acknowledged that he occupied premises as a tenant, and has given his note for rent, is not estopped in an action of ejectment from setting up title in himself, adverse to the plaintiff. MoCoon v. Smith, 3 Hill, 147. . So, where an infant's lands were sold under a surrogate's decree, an acceptance of the money arising from the sale, and a declaration of satisfaction was made, this was held not to estop such infant from asserting her title to the lands when she became of age, especially as no person's rights had been changed in consequence of the declarations. Ackley v. Dygert, 33 Barb. 176, 193. As to estoppels relating to married women, and to the marriage re- lation, see amte, 314 ; and as to infants, ante, 663. Estoppel in pais, or equitable estoppel. It is this class of estop- pels which is most frequently sought to be enforced. Where the de- fendant makes an admission, which is intended to influence the conduct of the man with whom he is dealing, and which actually leads him to adopt a line of conduct which must be prejudicial to his interests, unless the defendant be deprived of the power of retraction, this will be an estoppel, m^ais as to such defendant. Dezell v. Odell, 3 Hill, 216, 219; Pickard v. Sears, 6 Ad. &EI. 469; Cornish v. Ahlington, 4 Hurlst. & Norm. 549 ; Freeman v. Cooke, 2 Exch. 654. But before 940 DEFENSES. Estoppel in pais, or equitable estoppel. an estoppel in pais will exist against a party, it must appear, 1. That he has made admissions, statements, or representations which are clearly inconsistent with the evidence which he proposes to give, or to the title or claim which he proposes to set up ; 2. That the other party has acted upon such admissions or statements ; and, 3. That he will be injured by allowing the truth of such admissions or statements to be disproved. lb.; Plumb v. Cattaraugus Co.Mut.Ins. Co., 18 N. Y. 392, 395 ; Otis v. Sill, 8 Barb. 102 ; Martin v. Angell, 1 Barb. 40Y ; Truscott v. Davis, i id. 495 ; Winegar v. Fowler, 82 N. Y. 315. The representation or admission, to be binding as an estoppel, must have been made to the party who acted upon it, or must have been so made that he was legally authorized to act upon it ; for if the admis- sion is made to A., without any intention of influencing the conduct of B., and the latter assumes to act upon such statements, this will not estop the party making the admissions as against B. Reynolds v. Lounsbury, 6 Hill, 534 ; Strong v. Strichland, Z'ii Barb. 284, 289 ; Pennell v. Hinman, 7 id. 644. Again, before an omission or a representation can operate as an es- toppel in pais, it must appear that the statement was relied upon, and was the cause of the acts done by the party who claims the benefit of the estoppel. If such party would have acted in the same manner, in case no representation or admission had been made ; or if he did not place any reliance upon the statements, and did not in any manner act upon them, there can be no estoppel in pais, because the very point of such an estoppel is, that the party has been influenced in his conduct by the statements, and that he will be injured if the party making them is not held to abide by them. Fa/rrell v. Higley, Hill & Denio, 87 ; Lawrence v. Brown, 5 N. Y. 394 ; Cadwell v. Colgate, 7 Barb. 253 ; Permell v. Hinman, id. 644 ; Myerss v. Farwell, 9 id. 615 ; Griffith v. Beecher, 10 id. 432 ; Andrews v. Bond, 16 id. 633 ; Keeler v. Davis, 5 Duer, 507; Jewett v. Miller, 10 N. Y. 402; Catlin Y. 0-rote, 4 E. D. Smith, 296 ; Ackley v. Dygert, 33 Barb. 176 ; Corning v. Troy Iron, etc.. Factory, 39 id. 312. The principle underlying such estoppels is, that it would be a fraud in a party to assert what his previous conduct and admissions have denied, when, on the faith of that denial, others have acted. Horn v. Cole, 51 N. H. 287 ; S. C, 12 Am. Eep. Ill ; Simpson v. Pearson, 31 Ind. 1 ; Payne v. Burnham, 62 N. Y. 69 ; Blair v. Wait, 69 id. 113 ; affirming S. C, 6 Hun, 477. And the doctrine of equitable es- toppel is never applied to aid a fraudulent purpose. Royce v. Watrous, 73 N. Y. 597. And see 6 Act. and Del 681, 682. DEFENSES. 941 Estoppel. — By pleadings. There is no such thing as an estoppel by relation ; and where there is no statement or admission until after the act is done, there is no estoppel in pais. Pike v. Acker, Hill & Denio, 90. And see Young V. Bushnell, 8 Bosw. 1. It is not enough that the party believes an estoppel will be made in the future. Payne v. JBumham, 62 N. Y. 69. And no estoppel arises in respect to an agreement not otherwise binding, made to induce a party voluntarily to perform a contract which he could be compelled to perform, although he performed it relying upon the agreement. Orgam, v. Stewart, 60 N. Y. 413 ; reversing S. C, 1 Hun, 411 ; 3 Sup. Ct. (T. & C.) 598. But where it appears that the statement was relied upon, and that it induced the action taken by the party, who will be injured if the statement is not held conclusive, there will then be an estoppel in pais, which the courts will enforce. An attorney who issues an exe- cution upon which chattels are taken, and who refuses to state whether he directed the sale of particular chattels by the direction of his client, and challenges an action against himself personally, will be estopped from denying that he acted upon his own responsibility, if a suit is brought against him under such circumstances. Ford v. Williams, 24 N. Y. 359. By pleadings. Facts admitted in the pleadings in an action upon issues of fact are conclusive. Ballou v. Parsons, 11 Hun, 602. And it is not only conclusive in the same action, but where the pleadings are verified, it will be conclusive in another action between the same parties. Sheppard v. Hamilton, 29 Barb. 156 ; La Farge v. Eerier, 9 IST. Y. 241 ; S. C, 11 Barb. 159. But, where there is ho admission in the pleadings, there will be no es- toppel, as where the plaintiff declares in his complaint that he was servant of the defendant, and the answer denies this, there will be no estoppel in such a case which will prevent the plaintiff from showing on the trial that he was not the defendant's servant, even if the plead- ings are verified. Young v. N. Y. Gent. B. B., 30 Barb. 229. And see Bider v. Union India Bubber Co., 4 Bosw. 169 ; Beynolds v. Garner, 66 Barb. 310. A party may give in evidence an admission in the pleading of his adversary, without being estopped from questioning a portion of the pleading which is against him. Mott v. Consumers' Ice Co., 73 N. Y. 543. Admissions or assertions as to a matter of law. A party is never estopped by his admissions, or his assertions, in relation to a 942 DEFENSES. Estoppel. — Admissions or assertions as to a matter of law. — Sales of property. matter of law which arises upon undisputed facts. Brewster v. Stri- her, 2 N. T. 19. And see Griffith v. Beecher, 10 Barb. 432, 435 ; Oremvn v. ByrneSy 4 E. D, Smith, 756. So where a party to a cause is proved to have made admissions, he may defeat their effect by showing that they were made under a mis- take as to the law, provided the other party has not been induced to alter his condition in consequence. Newton v. Ziddiard, 12 Q. B. 925. And see Newton v. Belcher, id. .921. Where parties have by a motion for a nonsuit, or by resting their defense upon certain propositions of law, waived their right to go to jury, and have not requested to go to the jury after the motion for a nonsuit is denied or the law held adversely to them, they are estopped from taking the point in the appellate court that there were questions to be passed upon by the jury. ^ Ormes v. Bauchy, 82 JST. Y. 443 ; Trustees of East Hampton v. KirJc, QS id. 459, 464; Winchell v. Hichs, 18 id. 558 ; O'Neill v. James, 43 id. 84. Sales of property. Where the actual owner of goods stands by and voluntarily permits another person to treat them as his own, in conse- quence of which a third person is induced to purchase them in good faith, such owner will be estopped from subsequently claiming the goods of such purchaser. Thompson v. Blamchard, 4 N. T. 303 ; Gregg v. Wells, 10 Ad. & El. 90 ; Brewster v. Baker, 16 Barb. 613 ; Eider v. Union India Rubber (Jo., 4 Bosw. 169. And the rule is the same where he permits his property, under similar circumstances, to be mort- gaged or otherwise disposed of by another. Edgerton v. Thorr^as, 9 ]Sr. Y. 40 ; Rillard v. Stewart, 1 Hilt. 207 ; Tuttle v. Gladding, 2 E. D. Smith, 157. A sale or pledge of property by one who has no title, in the presence of the owner, who remains silent, estops the latter from impeaching the transaction on the ground of his better title. Hibbard v. Stewa/rt, 1 Hilt. 207 ; Mason v. Williams, 66 N. 0. 564 ; Meister v. Birney, 24 Mich. 435. So, if a party stands by and sees the defendant convert- ing his goods and material in any way to his own use, without protest, and such knowledge of their use can be shown, he is estopped from claiming the property. Hogan v. Brooklyn, 52 N. Y. 282. And see 6 Act. and Def . 705, 706. And where there are no misrepresentations, but mere silence and ac- quiescence in the claim made by another, the principle of estoppel is always enforced. This is founded upon the principle that he who is silent when conscience requires him to speak shall also be debarred from speaking when conscience requires him to be silent. Niven v. Belknap, 2 DEFEi^SES. 943 Estoppel. — Sales of property. Johns. 573, 589 ;• Freeman v. Cooke, 2 Exch. 654, 663 ; Gregg v. Wells, 10 Ad. «fe EL 97; Cornish v. Abmgton, 4 Hurlst. & Norm. 549, 556. But to sustain an estoppel because of omission to speak, there must be both the opportunity and the apparent duty to speak ; the party main- taining silence must have known that some one was relying thereon, and was either acting or about to act as he would not have done had the truth been told. Viele v. Judson, 82 N. T. 32. The silence of one party does not create an estoppel when the other party was fully ac- quainted with the true facts, and, therefore, could not be misled by the omission to speak. Frost v. Koon, 30 N. Y. 428 ; Edwards v. Evans, 16 Wis. 181 ; Plummer v. Mold, 22 Minn. 15. And the fact that a party who has an interest in having certain work well done and ma- terials of a certain quality used, stands by and sees work done and ma- terials used of a character inferior to that called for, will not operate as an estoppel or waiver of his right to thereafter object, where It does not appear that such party had sufficient knowledge to enable him to detect the defects and make the proper objections thereto. Hexter V. Knox, 7 Jones & Sp. 109 ; S. C. affirmed, 63 N. T. 561. A failure to remonstrate against the erection of a nuisance will not be held an estoppel. Burt v. Smith, 3 Phila. (Penn.) 363. And see Snow v. Willia/ms, 16 Hun, 468. And where the defendant opened a stone quarry on land he claimed to own, but which belonged to the plaintiif, and took stone therefrom, without objection on the part of the plaintiff, it was held that the plaintiff was not estopped from asserting title to such land. Jamison v. Cornell, 5 Sup. Ct. (T. & C.) 629 ; S. C, 3 Hun, 557. And see Roehrbom v. Schmidt, 16 Wis. 519. While silence may create an estoppel, a stiU stronger case is made where a party is guilty of active misrepresentations. And where a party represents to B. that certain property belongs to A., in conse- quence of which B. purchases it from A., this will be a conclusive answer to any claim to the same property which may be subsequently made by the party who made the representation. Breidert v. Yincent, 1 E. D. Smith, 542. To permit him to recover the property in such a case would be to encourage active and gross fraud. Execution sales. The same general principles that apply to ordi- nary sales between individuals are equally applicable to sales upon exe- cution. And where S., the owner of certain personal property, had sold one- fifth of it to B., under a conditional sale, and an officer with an execu- tion against the property of B. came to S. and inquired for property upon which to levy, when S. informed the officer that one-fifth of the 944 DEFENSES. Estoppel. — Execution Balea. property which he then pointed out belonged to B.j whereupon the officer levied upon and sold one-fifth of the property to a bona fide purchaser at the constable's sale, and it was held that such hona fide purchaser obtained a ralid title which neither S. nor his vendee nor as- signee could successfully assail. Stephens v. Baird, 9 Cow. 274. "Where A., with the intent to hinder and delay his own creditors, falsely and fraudulently holds out to the public and pretends that per- sonal property in his own possession, and purchased with his own money, belongs to B., in whose name the lease of the store for selling the property is taken, and whose name is painted upon the awning, he will be concluded by these representations, if the creditors of B. take the statements to be true, and levy upon and sell the property, as tlie property of B. Eigney v. Smith, 39 Barb. 383. • But the purchasers at such sales are also estopped from controverting matters assumed at the sale to be true. And where an execution creditor attends a sale at which the chattels of his debtor are sold upon an execution, and he purchases such chat- tels subject to a mortgage which the officer making the sale assumed to be a valid prior lien to both executions, he will be estopped from subsequently disputing the validity of such mortgage. Sorton v. Davis, 26 K T. 495. Where the property of a party is sold on an execution, he will not be estopped from questioning the power of the officer to sell it, even as against a purchaser at the sale, unless it appears that he had knowl- edge of the facts invalidating such sale, and that he in some manner misled such purchaser. The inquiry always is whether the party against whom an estoppel is alleged has, by his actions or words, influenced the conduct of others so that a wrong will be done to those so influ- enced, if the party should be permitted to show a state of facts incon- sistent with his actions and words. Carpenter v. Stillwell, 11 N. Y. 61 ; reversing S. C, 12 Barb. 128. But in these cases, as in all others, it is not only necessary to show that the party has misrepresented facts, but also that the other party has acted upon them. And where, at the time of a levy, the execution debtor told the constable having the execution that the property had been sold to another person, but, notwithstanding that statement, the constable took and sold the property, it was held that the debtor was not estopped from showing that the property belonged to himself, and that it was exempt from levy and sale under an execution. FarreU v. EigUy, Hill & Denio, 87. DEFENSES. 945 Estoppel. — Assigned claims, etc. Assigned claims, etc. Where a person takes an assignment of a bond, debt, or other chose in action, upon the faith of what the debtor says is due thereon, such debtor will subsequently be estopped from re- ducing the demand, either by set-ofEs or otherwise. Foster v. New- land, 21 Wend. 94. And where a debt is illegal, as in the case of a gaming debt, if the debtor declares that it is a valid debt, and that it will be paid, and a person takes an assignment of the demand upon the faith of such statement, the debtor will be estopped from asserting the illegality of the debt. Davison v. FranMrn,, 1 Bam. & Ad. 142. The ionafide holder of a note, purchased upon the written state- ment of the maker that it is business paper and will be paid at matu- rity, can recover against him, though the statement proves untrue. Lynch V. Kennedy, 34 N. Y. 151. So where a person,, who contemplates purchasing a bond and mort- gage, makes inquiries of the mortgagor in relation to the nature of the securities, and the mortgagor assures him that the matter is all right, and the securities are thereupon purchased, such mortgagor will be es- topped from setting up as a defense that the bond and mortgage were obtained by fraud. Hills v. Yaret, 3 N. T. Leg. Obs. 105. And see Watson's Executors v. McLa/ren, 19 Wend. 657. And it is not neces- sary that there should be any affirmative actions or representations by the debtor in order to estop him ; for if he remains silent when he ought to speak, he will be concluded. And if a party sees his obliga- tions, such as a promissory note, bond or mortgage, and the like, trans- ferred by the holder to a honafide purchaser, for a valuable considera- tion, without giving notice of any defense or set-off which he claims against it, he will be estopped from setting up such defense, or from availing himself of such set-off, as against such purchaser. Tylee v. Tates, 3 Barb. 222, 225; Watson^ s Executors v. McLaren, 19 Wend. 557. Where, on the assignment of a mortgage to the complainant, the mortgagor gave a written certificate that the mortgage was a valid lien upon the premises, that it was given for a part of the purchase-money, and that there then existed no legal or equitable defense thereto, it was held that he was estopped, by his own representation, from setting up the defense of usury in the transaction. Scott v. Sadler, 52 Penn. St. 211 ; Beal Estate Trust Co. v. Rader, 53 How. 231; Norris v. Wood, 14 Hun, 196 ; Smyth v. Lornba/rdo, 15 id. 415 ; Weil v. Fischer, 10 Jones & Sp. 32 ; Dinkenspeil v. FramMin, 7 Hun, 339 ; Diercks v. Kennedy, 16 N. J. Eq. 210. So, if one purchase a mortgage, relying upon an affidavit made by the mortgagor, in which he stated that the 119 946 DEFENSES. Estoppel. — Indorsements. mortgage was a good and valid lien on the premises for the full amount, and that there was no offset, counter-claim, or other matter affecting the validity of the mortgage and the whole amount secured thereby, the mortgagor and those claiming under him are estopped from contro- verting the truthfulness of the statements contained in the affidavit. Beal Estate Trust Co. v. Seagrave, 49 How. 489. And see Grissler V. Pmoers, 53 How. 194. See Wilcox v. Howell, 4A Barb. 396 ; S. C. affirmed, 44 IST. T. 398 ; Nichols v. Nussbaum, 10 Hun, 214. So where the obligor in a bond, which is subject to an equitable de- fense, consents to its assignment by the obligee to a third person, as a security for an existing debt, and for further advances made at that time to such obligee to the assignee, who also agrees to give further time of payment to the obligor, the latter will be estopped, by his con- sent, from availing, himself of such equitable defense as against the assignee, even though the assignee knew of it at the time of thus taking an assignment of it. DAmoreux v. ViscAer, 2 N. Y. 278. And see Baker v. Seely, 17 How. 297 ; Loomia v. Stuyvesamt, 10 Paige, 490. So an assignee of a chose in action will take it, subject to all previous equities, unless something is said or done to change the effect of the general rule. Indorsements. It is a familiar rule that negotiable paper, which is transferred before due to a hona fide holder, cannot be affected or im- peached by any prior equities between the parties to the paper. In- dorsers of such instruments are. as much bound by these principles as the makers of them. The drawer of a bill of exchange, who transfers it with a forged indorsement of the payee's name, is estopped from denying the genu- ineness of the indorsement. Goggill v. American Exchange BanJc, 1 N. T. 113. The indorser of negotiable paper will be estopped, by his indorsement, from denying, as to subsequent parties, the genuine- ness of the signatures of the makers, drawers, or antecedent indorsers, or their capacity to act as such. Troy Gity Bank v. Lawman, 19 N, T. 477, 479. So an indorser of a promissory note, which was made by married women, cannot deny that the makers were competent to make a contract, even as against a holder who knew of their coverture when he took the note, since the indorsement imports a contract that they were competent. Erwvn v. Downs, 15 N. T. 575. So where aa instrument purports on its face to be negotiable, and it is indorsed in blank and passed to the holder as a negotiable promissory note, such indorser will be estopped from denying that it is such a note. Hodges V. Shuler, 24 Barb. 68 ; S. C, 22 N. T. 114. So where a note has DEFENSES. 947 Estoppel. — Certificates of validity, etc. been protested, and is lying in a bank under protest, a consent by the indorsers that the bank may transfer the note to a third person with- out canceling it, and an advance of the money by such third person will estop the indorsers from disputing the validity of the transfer, and of the rights of the holder to recover the money due. Hartshorn v. Brace, 25 Barb. 126. The acceptor of a bill of exchange is estopped from raising objec- tions to the form of the bill, as, that it does not state the name of the drawee. Wheder v. Webster, 1 E. D. Smith, 1. So the acceptor of a bill drawn with a blank in it cannot set up forgery or fraud in the subsequent iilling up of the bill with too large a sum, as against a hona fide holder. Yan Duzer v. Howe, 21 N. T. 631. So where a bill of exchange is presented to the alleged acceptor, for the purpose of ascer- taining whether his signature is genuine, if he examines it and says, " "We wUl say nothing about it ; the bill will be paid," this will estop him from setting up the defense of forgery, as against the party who took the biU for value, upon the faith of the statements made. Power T. Pinherton, 1 E. D. Smith, 30. One who voluntarily signs, as maker, a negotiable promissory note, supposing he is binding himself to some other contract, and relying ou the representations of the payee as to the contents of the paper, with- out examining it sufficiently to ascertain the fact for himself, is estopped by his own negligence from setting up the invalidity of the note against a hona fide holder thereof. Chapman v. Rose, 56 N. Y. 13Y; S. C, 15 Am. Eep. 401 ; Kellogg v. Curtis, 65 Me. 59. And see Mosher v. Carpenter, 13 Hun, 602; Abbott v. Rose, 62 Me. 194; S. C, 16 Am. Hep. 427 ; Shirts v. Overjohn, 60 Mo. 305. And, as a general rule, if a person signs a written contract without acquainting himself with its con- tents, he is estopped by his own negligence from asking relief from his obligation, if his signature be procured without fraud or artifice. Rogers V. Place, 29 Ind. 57Y; Cormack v. Molhurg, 43 Iowa, 561. But the doctrine of estoppel has no application to a case where the party whom it was sought to estop was induced by the fraud of the other party to enter into the contract relied on as an estoppel. Rochester Ins Co. v. MaHin, 13 Minn. 59 ; Thome v. Mosher, 20 N. J. Eq. 257. Certificates of yalidity, etc. There are numerous instances in which defective or even illegal negotiable paper will be permitted to be collected, on the ground that the defendant has estopped himself from making the proposed defense. Certified checks are in common use, and are generally conclusive as against the bank upon which they are drawn, if subsequently certified. 948 DEFENSES. Estoppel — Official return, etc. — Landlord and tenant. Yol. 1, 750, 777. So a party who holds negotiable paper, which is void for usury, or the maker of it, will be estopped from interposing the defense of usury as against a person who takes the paper upon the faith of a certificate, that it is valid business paper. Ante, 182, 183. Official return, etc. It is a principle of very extensive application, that an officer is estopped from controverting or denying the truth of the facts which he has officially stated in any return required by law to be made by him. In an action against a sherifE, by the plaintiff in an execution, for the recovery of the moneys collected upon it, the return is conclusive evi- dence in favor of the plaintiff of the amount ; and although the return was made by a deputy sheriff, it is equally conclusive against the sheriff. Sheldon v. Payne, 7 N. Y. 453. See ante, 444, 445. But the principle of estoppel does not apply to the unauthorized acts of a predecessor in office, when the action is brought for the pur- pose of charging the successor in his official capacity. Mather v. Craw- ford, 36 Barb. 564, 569. And where a sheriff has levied upon goods, under an execution, upon the supposition that they belonged to the defendant therein, he may relinquish the levy as soon as he discovers the fact that he is not the owner ; and if he is sued for a false return in returning nvlla hona, he will assume the burden of showing property out of the defendant in the execution ; but he will not be estopped from showing that fact, nor from showing that he had previously sold the same property on a prior execution against the same defendant, and paid over the surplus moneys to the purchaser at the sale, who also claimed to be the owner of the property at the time, by virtue of a bill of sale from the de- fendant in the execution, which is the foundation of the action against such sheriff. Blwin v. Bleakley, 23 How. 124, 128, 129. Landlord and tenant. There are many cases illustrative of the principle that a tenant may be estopped from disputing his landlord's title, as well as that of the rule that the landlord himself is also some- times estopped. Vol. I, 335, 336. A tenant who continues in possession, and pays rent, after the expi- ration of a parol demise, without any new agreement, is estopped from disputing the title of his landlord. Osgood v. Dewey, 13 Johns. 240. Nor can he deny the title of the person under whom he ac- knowledges he entered, by showing that the premises belong to the State. Jaohson v. Ha/rper, 5 Wend. 246. A tenant is estopped from setting np a title which is hostile to that DEFENSES. 949 Estoppel. — Landlord and tenant. of his landlord at the time of the demise by showing a title under a tax sale before the demise. Sharge v. Kelley, 5 Denio, 431. But the rule that a tenant is precluded from denying the title of his landlord is not extended so far as to estop him from denying the validity of rights which could have had no existence when he took possession. Despard v. Walhridge, 15 N. Y. 3Y4 ; Vol. I, 335 ; Byerss V. Fa/rwell, 9 Barb. 615. So the acceptance of a lease, and the payment of rent in ignorance of the rights of the lessee making the payment, do not estop him, after the expiration of his term, from asserting his right to use the premises without the consent of the lessor. Child v. Cho/ppell, 9 N. T. 246. A tenant is not estopped from showing that his landlord's title has expired. JSatzel v. Barber, 69 N. T. 1 ; Ryder v. Mansdl, 66 Me. 167. And a tenant may set up the title of one who has purchased the fee of the land at a sheriff's sale on execution against the landlord, in defense of the landlord's action for rent accruing after the sale ; for the purchaser, as assignee of the reversion, is entitled to the after-accruing rent. JLancashire v. Mason, 75 N. 0. 455. And see Christie v. Gage, 71 N. Y. 189 ; Eiggins v. Turner, 61 Mo. 249. So in an action against a surety for the payment of rent under a lease, where it does not appear that the lessee was or could have been in pos- session of the premises, the defendant may deny the title of the lessor. A.udriot v. Lawrence, 33 Barb. 142. But the rule is otherwise where the answer discloses the fact that the tenant had entered upon and en- joyed the demised premises, even though the complaint is founded upon the contract and not for use and occupation. Yernam v. Smith, 15 K Y. 327. So in summary proceedings for the recovery of the possession of de- mised premises, the tenant will be estopped from denying the title of his lessor, if the relation of landlord and tenant is proved to have ex- isted at the time when the tenant went into possession. People v. Kelsey, 14 Abb. 373 ; Jackson v. Spea^, 7 Wend. 401. But in such proceedings the tenant may show, under a denial of the facts set up by the landlord, that the alleged lease was executed under and in pursu- ance of an usurious agreement, and is void, and therefore that the re- lation of landlord and tenant does not exist. The rule that the tenant cannot dispute his landlord's title does not apply to such a case. People V. Howlett, 76 N. Y. 674. But one who takes possession of land by the consent of the mort- gagee thereof, not for the purpose of paying rent, but to keep it in re- pair, and enjoy the profits, and with a knowledge on both sides that the 950 DEFENSES. Estoppel. — Performance of condition precedent. mortgagee has no title except as mortgagee, is not estopped from deny- ing the existence of an absolute title in the latter. Sahler v. Signet; 37 Barb. 329. Former adjudication. This subject has been already so fully dis- cussed, that a mere reference to the cases cited will be sufficient. Ante, 735-755. Partnership. When partners are liable to third persons, see Yol. I, 508, 509, 510. And when all the members of the firm are bound by the acts of one partner, or by a less number than the whole firm, see id., 528, 536. Principal and agent. The cases in which a principal will be bound by the acts of his agent wiU be found in the preceding volume. See Yol. I, 435-443. The same cases will also notice in what instances the principal is not concluded by the acts of his agent, or by those of a person assuming to act as his agent. Corporations. When corporations are bound by the acts of their agents or officers ; when they are not permitted to deny their corpo- rate existence ; when persons dealing with them are estopped from denying the validity or regularity of their incorporation, and like in- stances, see Yol. I, title. Corporations. Performance of condition precedent. The law does not permit a person to prevent the performance of a contract or condition, and theu allow him to afterward complain of the non-performance. Ante, 728. Neither is he permitted to complain of a non-performance when he is in default, by not performing a precedent act which he is bound to do before he could call upon the other party. Ante, 730. So where a party is bound to perform a contract in a particular manner, the party for whom it is to be performed may waive a strict performance, or may consent to a change in the mode ; and if he does so, he cannot subse- quently complain of the non-performance according to the original terms. Clinton v. Brown, 41 Barb. 226. And so where the party, by a wrongful act on his own part, prevents a performance of a con- tract according to its terms, he will be estopped from alleging such non-performance. Kidd v. Belden, 19 Barb. 266. Waiver of exemption laws. The exemption of real estate from sale upon execution, created by filing a notice under the " Homestead Ex- emption " act, is not an incumbrance, claim, or lien on the premises ; and, therefore, an owner who has filed a notice of a claim of exemp- tion, and who subsequently obtains a credit, by representing tliat there is no incumbrance, claim or lien upon the property, is not thereby estopped from subsequently insisting upon the exemption of the prem- DEFENSES. 951 Estoppel. — Waiver of exemption laws. ises from sale, upon a judgment recovered for the debt contracted upon the faith of such representation. Robinson v. Wiley, 19 Barb. 167 ; S. C, 15 N. Y. 489, approving this principle but reversed upon other grounds. A promissory note, given by a debtor, for a specific sum, and con- taining a clause like the following, " hereby waiving the benefit of all and every exemption of property from sale on execution, under the laws of this State," does not operate so as to justify a seizure of the debtor's exempt property upon an execution subsequently issued upon a judgment rendered upon such note. Crawford v. Lookwood,^ How. 547 ; Harper v. Leal, 10 id. 276 ; Kneettle v. Newcomh, 31 Barb. 169 ; S. C, 22 IST. T. 249. In such a case the waiver is inoperative, because there is nothing upon which it can operate at the time of giving the note. In this respect it is like a release which cannot operate upon a right not then in existence. Ante, 823. Again, the principle of an estoppel in pais does not apply, because there is no fact involved in the transaction of which the creditor was ignorant ; and he will be presumed to know the law and the legal effect of his agreement. lb. Receiptor. A receiptor's agreement to return property is generally conclusive upon him. Yol. I, 662, 664. Error of party making assertion. Before noticing those cases which are founded upon an innocent error, it may be proper to say a word or two in relation to fraudulent assertions. And where a party is guilty of a fraudulent and intentional misrepresentation, upon which another acts, and is injured in consequence, he will be concluded by his statements, and compelled to make the injured party good. Ante, 424, 425. But there may be cases in which there was no actual intention to mislead another, and yet there may be such a state of facts as wiU estop the asserter from denying the truth of the facts stated. In the case of warranty of goods on a sale, the vendor wiU be held to answer for the defects warranted against, whether he knew of them or not. Ante, 74, 76. So there may be other instances in which a party makes an assertion with honest intentions, but under an erroneous im- pression as to the facts, and yet he may be held to abide by the state- ments. If the assertion is made with the intention that another shall act upon it, which is accordingly done, the party making the assertion will be estopped from correcting the statement for his own benefit, however innocently he may have acted ; for if he must suffer, or there must be a loss by the party who was misled by him, he will be com- pelled to abide by his statements. 952 DEFENSES. Estoppel. — Error of party making assertion. But where the statement is not willfully false to the knowledge of the party making it, it must be a representation which he means shall be acted upon by the other party, and it must then be acted upon in good faith before there will be any estoppel. But, whatever a man's real intentions may be, if he so conducts himself that a reasonable man would take his representation to be true, and believe that it was in- tended that he should act upon it, and he does accordingly act upon it as true, the party making the representation wUl be precluded from con- testing its truth, equally as in a case of a willful misrepresentation. Freeman v. Cooke, 2 Exch. 654, 663 ; Oraig v. Ward, 36 Barb. 378 ; Bennett v. Judson, 21 IST. T. 238 ; ante, 427, 428. And where the indorser of a bill of exchange had received notice of protest, upon receiving which he had gone to take up the bill, but was informed by the holder, that it had been paid, and by such information the indorser was prevented from collecting it of the drawer, who sub- sequently became insolvent, and the acceptor being at the time insol- vent, it was held that the indorser was discharged from liability, al- though such information proved to be erroneous, and was honestly given. Kingsley v. Yernon, 4 Sandf . 361. And see Pebrie v. Feeter, 21 "Wend. 172. The holder is estopped, in such a case, not upon the ground of fraud, or willful misrepresentation, in making the statement, but upon the ground that it will be a fraud to show that it is untrue to the prejudice of one who has acted upon the statement. lb. In this case the party making the inquiry had a right to ask for the informa- tion sought, and the party inquired of was bound to state such facts as he knew, and if he assumed to know that the bill was paid, there was no injustice in holding him accountable for the loss which must fall upon him or upon one whom he had misled. But where there is no such right to demand correct information, and the answer given is believed to be true by the party giving it, there ought to be clear evidence that he intended that the information given should be acted upon by the other party, before any legal liability will attach. Ante, 427, 428. And where the information given, or the statement made, is merely the expression of an opinion honestly enter- tained, it would be difficult to find any legal principle which would es- top the party giving such opinion from showing that he was mistaken. Ante, 428. Release. As to the effect of a release as an estoppel, see ante, 821. Tender. As to the effect of a tender, see ante, 880. INDEX. ABATEMENT. page. Of nuisances 455 Who may abate 456 Damages arising from 457 ACCEPTANCE. Of part of property purchased cannot be compelled by vendor 9 Effect of acceptance of order for delivery of property 14 Of part of property purchased and waiver of delivery of the remainder. . 47 Of an inferior article by vendee, defeats his claim for damage 49, 66 As a waiver of fraud in a contract of sale 50, 73 Question of acceptance, a question of fact 50, 119 Marking logs as evidence of acceptance 53 Procured by artifice or fraud is not binding on acceptor 66 And receipt of part of property purchased, satisfies statute of frauds 114 May be a receipt without acceptance 114 Acceptance of goods, when necessary to satisfy the statute 115 What amounts to acceptance under statute of frauds 115, 118 Time of accepting goods purchased 115, 121 By one of several joint purchasers, acceptance by all 117 By agent of the buyer 117, 118 By a common carrier 38, 117 Evidence of acceptance 119, 120 Constructive acceptance 120 Effect of 120 ACCESSION. Title by 566-568 ACCORD AND SATISFACTION. Definition and general principles 869 From a stranger, when a bar 870 By one of several obligors or wrong-doers 871 To one of several joint creditors 871 Value of satisfaction 871 Must be executed 873 Not supported by mere proof of tender 873 Executory agreement between debtor and creditor 873 What is a suflScient accord and satisfaction 874 What is not sufficient 877 Defense must be pleaded 880 120 954 INDEX. ACCOUNT. PAGE. When interest is collectible on an open account 142, 143, 155 When statute of limitations runs against 793 ACCOUNT STATED. Defined 411 Requisites of stating an account 411 Failure to object to account presented 411, 413, 413 Is a mere admission and not an estoppel 413 Effect of stating an account 413 May be impeached for fraud or mistake 413, 416 Must be between parties competent to contract 413 May be as to account of one party only 414 May relate to a single transaction 414 May be evidenced by an I. O. U 414 Criving of note presumptive evidence of accounting 414 Effect of objection to specific items of account rendered 414, 415 Qualified or conditional admission of indebtedness , 415 Oeneral acknowledgment of indebtedness without specifying amount. . . . 415 Illegality or immorality of consideration 415 Proof of items of account not required 415 Abandoning account stated and recovering upon account 416 When opened 416 Burden of showing fraud, mistake or error in 416 Usurious items in account stated 416 If opened as to one party opened as to both ,. 416 ACTIONS. For goods bargained and sold 345 For goods purchased and refusal to deliver 347 For breach of warranty of chattels 349 To recover for labor and services 351 For work, labor and materials furnished 373 For money lent and advanced 376 For money paid, laid out and expended 378 For money had and received 391 For use and occupation 407 Upon an account stated or balance struck 411 For torts generally 418 For fraudulent representations as to credit 434 For ofiicial neglect or misconduct 430 For injuring or enticing away a servant 436 For an escape 438 For a false return 443 For a nuisance 445 Nuisance affecting personal health or comfort. 449 Nuisance affecting real estate 453 For penalties 45g For trespass to property 467 For trespass upon real estate 473 For trespass to personal property 54j INDEX. 95& ACTIONS -- Continued. • page. For injuries to water and water-courses , . 507 For diverting water of streams, etc 509 For diversions of subterranean water 513 For obstruction of water, etc 517 For flowing lands above 530 For flooding lands below 531 For back water upon mill above 533 For interference with surface water 533 For violation of fish and game laws 535 Of trover 553 Of negligence 585 For collisions on the highway 606 For injuries by domestic and other animals 611 For fraud in sales, exchanges or otherwise 61^ Of replevin 630t Under the civil damage act 644 By wife against husband 311 By infant for injuries 343, 343, 344 When barred by the statute of limitations 779 What included in the term " acti6n" 779 For breach of submission to arbitration 863 Discontinuance of, by submission to arbitration 863, 864 ACT OF GOD. Excuses non-performance 719 Meaning of the term 730 ADMimSTEATOR. (See Executor.) ADMISSIONS. Of infants are binding 673 Of indebtedness by plea of tender 900 In pleadings as an estoppel 941 Of matters of law do not create estoppel 941 ADULTERY. Of husband justifies wife in leaving 338 Of wife justifies husband in turning her away 330 Effect of cohabitation of husband and wife ' 330 AGENT. Contracts of sale by agents 8 Liability of undisclosed principal for goods purchased by agent 8 Action by principal on warranty made to his agent 8 Power of agent to warrant 85 Sales procured by fraud practiced by agent 56 May stop goods in transit to protect advances, etc 105 May insure property in own name 19a Waiver of payment of insurance premiums by 199 When insurer bound by acts of 300, 301 When insured bound by acts of 300 Person cannot be agent for both insurer and insured 300 956 INDEX. AGENT — Continued. page. Child as agent of parent 338 Payment to agent when payment to principal 911^ 913 When subscription by an agent satisfies the statute of frauds 374 When liable to action for money had and received 405y 406 Authority of agent to convey or to agree to convey lands 375 Implied promise to pay moneys to principal 405 When presumed to have received proceeds of sale 406 Agent cannot subject principal to penalties 464 Power of agent to bind principal by arbitration 839 Exacting a bonus as a condition of making a loan 166 Principal bound by representations of agent as to character of negotiable paper 183 Husband as agent of wife 314, 323, 324 Wife as agent of husband 323„ 335 ALTERATION. Of contracts, by consent 679 Of contracts, without consent 683 Of sealed instruments, deeds, etc . ^j. 683 Of written, unsealed contracts 683 Of bills and notes 684 By whom made 691 Presumption as to time of 692 Presumption of alteration 692: ANIMALS. When a nuisance 451, 452 Property in 470^ Animals _/eroE naturae , 470' Eights of hunter in animals hunted , , . 471 Ownership of bees 472 Injuries by animals upon adjoining premises 474 Special proceedings against animals straying in highways 496-500 Liability of owner of cattle for their trespasses 501 'Cattle damage feasant 506 When chasing with dogs is a trespass 544 Xilling trespassing animals . . 544 Agister of cattle may maintain trespass 542 Injuries by domestic and other animals ,611 When an action lies for injuries by animals 611 Liability of owner of dogs for injuries by 611-617 Knowledge of vicious propensities of animals 611-615 Statutes relating to the killing of sheep 616 Joinder of defendants 616 When an action will not lie 617,. 61S ANOTHER ACTION PENDING. Nature of the defense 659 Must be set up by answer 660 When defense is available 660 Effect of discontinuance 661 INDEX. 95Y ANSWER. (See Pleadings ; OoTOiTKB-CLArM ; Recoupment, etc.) fade. ' May consist of denials or new matter 768 Denials 651-656 What is new matter 768 When to be verified 768 Affirmative defenses 656, 659 Defendant must answer or demur 768 APPLICATION OF PAYMENTS. By debtor 933 Time of making application 923 Presumption of intent 93S By creditor 923 Presumption as to intent 924 Time of making the application ' 925 Application once made conclusive 935 By the court 926v938 APPRENTICE. Actions for enticing away an apprentice 436, 437 ARBITRATION. Under the Revised Statutes 831 Provisions of the Code relating to 882-837 Parol submission valid 837 ■Common-law practice may be resorted to 837 Who may submit demands to arbitration 833, 838, 839 Who are disqualified from arbitrating 833, 839 What questions may be submitted 840 Form and construction of submission 841 -Revocation of submission 844 Time of revoking submission 836, 844 Liability for revocation 837, 844 Form of revocation 837, 844, 845 Umpires 845 How chosen 845 Must act with the arbitrators 833, 846 Hearing and proceedings thereon 846 Appointment of time and place of hearing 838, 846, 847 Arbitrators must be sworn 833, 847 Waiver of oath 847 Compelling attendance of witnesses 833, 847, 848 Administering oath to witnesses 848 Parties should be present 849 The award 849 When to be made 849 By whom made 834, 850 Requisitesof 85^ Mutuality 853 Must be reasonable ; 854 Must be final and conclusive 854 jyiust be certain 855 958 INDEX. • ARBITRATION— Continued. page. Must be possible 858 Form and execution of 834, 859 Delivery of 860 Subsequent award void 859 Construction of 851 Action for breach of submission 863 Discontinues pending actions 863 Effect and conclusiveness of an award 865 Impeaching awards 884, 866 Oral evidence to impeach 866 What will invalidate an award 834, 866, 867 Errors committed by arbitrators on the hearing 868 When a condition precedent to a right of action 840 ARCHITECTS. Right to compensation 365 Certificate of performance of contract 373, 374 EfEect of withholding certificate 374 ASSENT. Of parties to a contract of sale 7 ASSIGNEE. (See Assignment.) Of fraudulent vendee may be sued jointly with his assignor 56 Recovery of goods from assignee for benefit of creditors 65, 71 Tender of money or goods to, on rescission of sale 71 Takes goods subject to right of stoppage in transitu 107 May interpose defense of usury 178 ASSIGNMENT. Of right of borrower to recover back excess of interest 188 Of right of action to cancel usurious security, etc 180 Based upon usurious consideration, void 188 Fraudulent assignments 288 Made with intent to hinder, delay or defraud creditors 388 Made in trust for the assignor, void as against creditors 388 Right of insolvent to assign with preferences 389, 390 Fraudulent intent, how shown 390 When fraud will not be presumed 290 Absence of participation by assignee in fraud of assignor 390 Subsequent fraud will not afiect a valid assignment 291 Subsequent acts and declarations as evidence of fraudulent intent 291 Failure to file inventory of insolvent's estate 391 Providing for payment of surplus to assignor 291 Exempting the assignee from liability for losses, etc 392 Provisions as to compensation of agents and counsel 393 Provisions authorizing assignee to declare preferences 393 Provision as to completion of assignor's business 293 Provision allowing sales on credit 394 Retention of assigned property by assignor , 294 Validity of, when a question of law or fact 295 Construction of general assignments 395 INDEX. 959 ATTORNEYS. page. Attorneys may recover for professional services 357 Amount recoverable 357, 358, 359 May prove value of his services 358 May agree upon sum payable 359 Must show retainer 359 Must possess skill and use it 360 Cannot recover pay if negligent 360 Negligence must be affirmatively shown to defeat his recovery 361 Liable for gross blunders 361 Liability for want of sldll 361 Liability for allowing judgment by default 363 Promise to conduct cause gratuitously is a defense to action for fees. . . . 363 Agreement to take fees collected of opposite party 363 Liability of, for directing a levy 547 Has power to arbitrate 839 When payment to attorney is valid 913 AWARD. (See Abbitration.) By arbitrators 849-869 BAILMENT. Contracts deemed sales and not bailments 1 What is a bailment instead of a sale 4 Test of bailment as distinguished from sale 5 Bailor or bailee may maintain trespass against wrongful taker 548 Eight of bailee to maintain trover 554, 556 Liability for use of chattel inconsistent with bailment 560 Conversion of goods by pledgee 558 BANKS. Statutes relating to usury 163 Charge by banker for effecting a loan 164 Discounts by 167, 168, 169 BARTER. Distinguished from a sale , 1 BASTARDY BONDS. Liability of infant on 670 BETTINC AND GAMING. Recovery by employer of money won from clerk 393 Statutes relating to 403 Recovery of money deposited with stakeholder 403 Right to recover money lost rests on contract 404 Assignment of right of action 404 Loan of money for 404 Liability of stakeholder 404 Under cover of a contract of sale H When a transaction is a mere wager and not a sale 12 BILLS, NOTES, Etc. Consideration of note from husband to wife 307 Alteration of 684 Belease of one of several parties to 837 960 INDEX. BILLS, NOTES, 'EA.c.—OonUnmd. page. Payment by note of third person 129, 914, 919 Payment by debtor's own note 131, 918 When interest is recoverable on 139, 145 What interest is recoverable on 137, 138 When interest is payable on 150 BOARD OP HEALTH. Conclusiveness of an adjudication by, in respect to a nuisance 447 BONA FIDE PURCHASER. Who are deemed 'bona fide purchasers 59 From fraudulent vendee obtains a good title 35, 59, 399 From a thief obtains no title 33, 60 From vendee to whom goods have been delivered conditionally 25 Prom vendee to whom the goods have been sold conditionally 26, 31, 33 When note void for usury in the hands of 173 BOND. Interest, when recoverable upon a bond 139 When interest becomes payable on 150, 151 BROKERS. (See Pactobs and Brokers.) Sales by, how affected by statute of frauds 112 BUILDINGS. (See Fixtures.) May be personal or real property 468, 469> BURDEN OP PROOF. Of a sale of property, lies with the party claiming a sale 8 That a delivery was conditional 39' Of usurious character of contract 159, 160 CARRIER. (See Common Carrier.) When a delivery of goods to a carrier is a delivery to vendee 38 CATTLE. (See Animals.) CAVEAT EMPTOR. Meaning and application of the maxim 90-93 CBRTIFIOATE OP ARCHITECT. (See Arohitbct.) CHARTER. Of insurance company, alteration of 316' CHATTELS. Statutes as to usury do not apply to loan of chattels 171 CHATTEL NOTE. Interest recoverable on 144 CHECK. Payment by 917 Effect of drawing and delivering 91g Suits on , 918 CIVIL DAMAGE. Actions under the Civil Damage Act 644 Terms of the statute 644, 645 Injuries inflicted by intoxicated person 645 Injuries in consequence of intoxication 645. INDEX. 961 CIVIL DAMAGE — Continued. page. Action lies for direct and consequential injuries 645 Injuries causing death 646 Bight of widow to sue 646 Right of wife to sue 646, 647 "Means of support " construed 647 "Injured in person " construed 648 Mental suflEering, etc., not an item of damage 648 Liability of lessor 644, 648 Negligence of landlord and lessee not material 648, 649 Knowledge of lessor must be proved 649 Joinder of defendants 649 Liability of master for act of servant 650 Separate actions by parent and child 650 Exemplary damages 650 Mitigation of damages 650 CLAIM AND DELIVERY. (See Replevin.) COMMON CARRIER: Amount of compensation recoverable 370, 371 Delivery of goods essential to right of compensation 370 When actual delivery excused 371 COMMON COUNTS. Goods bargained and sold 346-347 Goods purchased and refusal to deliver 347-349 Warranty on sale or exchange o 349-351 Actions to recover for labor and services 351-372 Work, labor, and materials furnished 373-375 Money lent and advanced 376-378 Money paid, laid out and expended 378-391 Money had and received 391-407 Use and occupation 407-411 Accounts stated or balance struck 411-417 COMMON SCHOOLS. (See School Distbicts.) COMPLAINT. (See Pleadings.) On policy of fire insurance 191, 193 On judgment of justice of the peace 233 On obligations of married women 320 CONDITIONAL SALES. (See Sales.) Rights of vendor after sale on condition 25 CONDITIONS PRECEDENT. Non-performance of, as a defense 905 CONFESSION. Judgment by 222 CONFUSION OF GOODS. Title by 568-570 CONSENT. Of mother to binding infant as apprentice 340 121 962 INDEX. CONSIDERATION. page. When required by the statute of frauds to be expressed 239'-241 (See Statute op Fbatjds.) Past consideration will not support new promise 383 If illegal or void will not support account stated 415 For release. ... . .... . ," ., . .....,.,...,... 831, 833 Failure of consideration as a defense 903-904 CONSTABLE. Liability for neglect to collect, an execution 433 May justify under process issued hj de facto justice 433 May justify under process.issued upon, judgment without jurisdiction 483 When not required-to show valid judgment.in justification 438, 551, 556 Protected in. the service of process. regular on its face 438, 550 Not protected in serving process irregular, on itsiace 483, 551 Right of action to enforce illegal levy 434 When required to .show valid judgment 434, 553, 557 Cannot require others to do an illegal act. 434 Liability for executing process not directed to him 435 Liability for serving process after return day 486 Taking property of the wrong person 436 Liability for an escape 438 (See Escape.) May recover fees from party requesting service 371 Fees in criminal cases must be recovered from county 876 May maintain trespass for goods levied upon 543 Must show judgment as well as execution 543 Invalidity of process may be attacked by defendant 543 Eight to maintain trover after levy 556 When liable in trover 575 Liability in replevin for wrongful levy 631, 633 Amount of recovery for failure to return execution 153 Recovery for moneys collected and not paid over 153, 405 Concluded by his own return 444 Liable for false return 444 Has insurable interest in property taken by process 193 CONSTRUCTION. Of penal statutes 463 Of release 834 Of submissions to arbitration 841 Of an, award 861 Of contracts of sale 11-15 Of contracts purely personal, as to law of place 138 Of general assignments 395 CONTRACTS, When required by the statute of frauds to be in writing,. 110, 339 Contracts not to be performed within one year 345 Promises to answer for the debt, default or miscarriage of another 257 For the sale of interests in lands, etc 273 Leases for a longer term than one year 287 IKDEX. 963 CONTRACTS — Continued. pagb. For the sale of chattels for more than $50 110 When not within the statute of frauds 284 Leases for one year , 287 Entered into to hinder, delay or defraud creditors 288 When avoided by intoxication 677 Alteration or modification of, by consent 679 Alteration of, without consent 683 Illegality of 694 In restraint of trade 696 For corrupting legislation 703 Wagering, betting and gaming 403, 404, 704 Violation of Sunday laws . . 704 Tending to promote prostitution 707 Against public policy 709 Usurious 156-189, 715 In violation of statute 715 Divisible contracts, part being good' and part bad 717 Impossible contracts 719 Act of G-od as- a defense; 719 Act of the law or legal impossibility , 721 Physical impossibility. 732 Higher security, merger, extinguishment, etc ., as a defense 734 Performance of 728 Prevention and dispensation; 728 Default indoing first act. 730 Cumulative and altiernative stipulations 730 Time of' performance 73I Mode of performance 732 Excuse for non-performance-. 734 Part performance. 734 Limiting time of' commencement of actions , 730 When a breach of contract becomes actionable in tort 421 To pay for services, when implied 352 353 When not implied , 354 355 When avoided by duress 939 Marriage a mere civil contract 398 Of married woman. 311-323 Of infant, generally voidable gg3 Right of infant'to disaffirm 664 667 Afiirmance or ratification of, by infant 665 Liability of infants on contra;cts for necessaries. 667 Of insurance 190 By parol, valid I94 Construction of personal contracts, by what law governed! . . ., 138 185 When void for usury igg ^57 Not to interpose defense of usury are void 184 CONTEIBUTION. When right of contribution exists 383-386 964 INDEX. CONTRIBUTORY NEGLIGENCE. (See Negligence.) page. When a bar to an action for injuries 590 CONVERSION. (See Tbovbb.) Wrongful conversion the gist of trover 554 What constitutes 570 By wrongful taking 271 By wrongful assumption of property 573 By demand and refusal 676 By unauthorized use of chattel bailed 5 Interest recoverable in action of 146 CORPORATION. Cannot interpose the defense of usury 158, 180 Fraudulent representations by officers of 426 Liability of stockholder for frauds of officers, etc 436 May submit demand to arbitration 838 COSTS. In action upon justice's judgment 223, 333 COUNTER-CLAIM. What is included in the term 738 Distinguished from a defense 768 Must consist of new matter 768 What is new matter 768 Must be within jurisdiction of justice 770 Must tend to diminish or defeat a recovery 770 Must be a cause of action against the plaintiff 771 Must be in favor of the defendant or one or more defendants 771 In actions against a surety 771 May be interposed by assignee 772 May be interposed by administrator or executor 773 By one of several defendants 773 May consist of distinct, independent demands 773 In actions of tort 763, 774 Demands arising out of, or connected with plaintiff's claim 775 Effect of statute of limitations on 777 Must be pleaded 777 How pleaded 777, 778 Form of judgment in case of counter-claim 778 Effect of neglect to interpose, in prior suit 738, 778 For tort, not allowed in action on contract 739 Set-off must be pleaded at first opportunity 739 Set-off rejected on former trial under objection of adverse party 739 Includes recoupment 755 COVENANTS. Liability of married women on 319 COVERTURE. (See Hubbakd and Wipe, etc.) As a defense , 678 CREDIT. Fraudulent representations as to credit 424 Sale of credit allowed, when 169 INDEX. 965 CREDITORS. PAGE. When sales, assignments, judgments, etc., are fraudulent as to 288 CROPS. Sale of crops to grow 10 Mortgage of crop to be raised 10 DAMAGE. To plaintiff, how far essential to a recovery for tort 418-431 In action for fraud 435 Measure of, on fraudulent transfer of paid note 439 DAMAGES. Measure of, in action for goods bargained and sold 345, 346 In actions for goods sold and delivered 345 In action against vendor for non-delivery of goods sold 348, 349 Measure of, for breach of warranty 350 Measure of, in action by surety against principal 380 Special damage essential to action for public nuisance 447 Recoverable in action for nuisance 457, 458 Unauthorized entry upon land carries at least nominal damages 473 Exemplary damages may be given for deliberate and intentional trespass. . 475 When treble damages given for cutting trees 482, 483 ' Inreplevin 642, 643 Under the Civil Damage Act 644-650 DECEIT. (See Featjd.) DEED. From wife to husband 308 Estoppel by deed ;, 936 DEFENSES. Distinguished from counter-claims 768 General denial, what defenses may be established under 651 What are aflSrmative defenses 656 Affirmative defenses must be pleaded 657 Another action pending '..... 659 Infancy 652 Lunacy, idiocy, and, unsoundness of mind 672 Drunkenness or intoxication 675 Coverture -. 673 Alteration or modification of contract by consent 679 I Alterations or erasures without consent 683 Illegality of contract 694 Impossible contracts 719 , Act of God 719 Higher security, merger, extinguishment, etc 734 Performance 728 Default in doing first act 730 Former adjudication 735-755 Former recovery by plaintiff 735 Former suit when plaintifi" set off demands, 736 Former suit and neglect to interpose counter-claim 738 Former action and judgment for defendant 740 966 INDEX. DEFENSES — Continued. page. Becoupment ». 755-766 Breach of warranty 757 Set-off 766 Counter-claim 768 Statute of Umitations 779-821 Belease 821 Arbitrament and award 730-869 Accord and satisfaction 869-880 Tender 880-902 Failure of consideration 902 Parol discharge from sealed contract 904 Non-performance of condition precedent 905 Payment 907 Duress , 928 Estoppel , 934 Justification by officer by virtue of process 433, 435, 436, 550 In action for an escape 439, 440, 441, 442 To action for false return 444 License as a defense in action of trespass 483 Neglect of plaintiff to keep division fence in repair 501, 504 Involuntary trespass ^ 505 Title in a stranger 549, 644 Eight of lien as a defense in replevin 644 Want of license in plaintiff 714 DEFINITIONS OP WOEDS AND PHEASES. Accessions 366 Accord 869 Agreement 249 Action ^..- 779 Actual possession 655 Cause of action •. 772 Glauswn 473 Collateral promise 258, 259 Confusion of goods 568 Constructive possession S55 Conversion 570 Counter-claim 738, 768 Damage feasant 506- Defense 768 Duress 928 Escape 438 Estoppel 934 Fence 500 Fixture 226 Forthwith 201, 202 General property 555 Hereditament 468 Incorporeal property 468 Injury to the person 648 INDEX. 967 DEFINITIONS OF WORDS AND PHRASES — Cmtihtted. page. Insolvency 106 Interest 137 Land. 468, 508 Machinery ■. 205 Means of support 647 Mutual accounts 793 Necessaries 386, 670, 671 Negligence 586 New matter 768 NuiSaince 445 Occupied 196 Reciprocal demands 796 Recoupment 755 Release 821 Sale 1 Sale or return 23 Set-oflE 766 Special property 555 Tender. 880 Tenement 468 Tort 418 Transfer 772 tTmpire 845 Unoccupied 196 Usury 156 Vacant 196 Water-course 507 DELIVERY. Of goods sold 16, 36 When title to .goods sold does not pass before delivery. .... .. 15, 18, 22, 23 When actual delivery not necessary to pass title 16, 17, 19, 36 When payment and delivery deemed concurrent acts. . 18 Conditional delivery of goods sold 20, 25, 28, 31, 32 Burden of proving a conditional delivery 20, 21, 33 Mode of delivery 36, 41 Of ponderous or bulky articles 36 To a carrier, when delivery to the vendee 38 Time of delivery Sb, 41 Place of delivery 42 Quantity or number of articles to be delivered 44 In parcels 46 Procured by fraud 55 Of insurance policy 198 DEMAND. For goods sold, when necessary to put vendor in default-. 347, 348 When necessary before action for money had and received. , . , . 405, 406 When necessary before bringing action of trover 571, 576 When not necessary in trover 571, 576 968 INDEX. DEMAND — GonUnued. page. When demand must be made on all defendants 577 Upon whom made 678 How proved 578 In case of assigned demands 580 By agent 579 Sufficiency of demand 580, 584 Effect of refusal to deliver on demand 579-583 When necessary before bringing replevin 634, 635, 641 When statute of limitations runs from 785 When interest runs from time of making 141, 143, 145, 146, 153 DENIAL. What may be proved under a general denial 651-656 Effect of a general denial 651 Of knowledge or information sufficient to form a belief 653 Of conclusions of law 653 Of immaterial allegations 653 What may be shown under a special denial 656 DEUNE:eNNESS. (See Intoxication ; Civil Damage.) DURESS. Defined 938 By imprisonment 938 By threats 928 When it avoids a contract 939 Of property 981 What does not avoid a contract 933 Recovering back money paid under 388, 389, 398 Marriage may be declared void for • . . . 300 EARNINGS. Of wife, who entitled to 308, 309, 310 Father entitled to earnings of child 339 When child entitled to his own earnings 340, 341 ESCAPE. Defined 438 May be negligent or voluntary 438 On mesne or final process 438 Of defendant taken under execution, what constitutes 438 Of prisoner who has given bond for jail liberties 438, 443 Taking prisoner from officer under other process 439, 441, 443 Discharge of prisoner by direction of plaintiff's attorney 439 Discharge by plaintiff's consent in action for penalty 439 Discharge from arrest by justice of the peace , 439 Justifying discharge under order of the court 439, 440 Defense to the action 440, 441 Retaking prisoner after escape 440 Procured by plaintiff in execution 440 Extent of liability of officer for 443, 443 INDEX. 969 ESTOPPEL. PAGE. Defined 934 Kinds of 935 By record , 935 Judgments 935, 936 By deed 986 Recitals in deeds 936, 937 Eecitals in undertakings 937 Kot favored as a defense 938 Must be reciprocal or mutual 938 Who not bound by 939 Equitable estoppel or estoppel in pais 939 What constitutes 939-941 By pleadings 941 Admissions or assertions as to matters of law 941 Upon sales of property 942 Upon execution sales 943 In case of assigned claims, etc 945 Indorsements 946 Certificates of validity, etc '. 947 Official returns 948 As between landlord and tenant 948 As against corporations 950 Waiver of exemption laws 950 Error of party making assertion 951, 953 When a vendor is estopped from questioning title of goods sold 30, 35 Owner of goods not estopped by acts of tortious taker 36 When insurance company estopped from setting up breach of policy 198 Married women 814 Account stated not an estoppel : 413 ESTRATS. (See Aotmals ; Tkbspass, etc.) EVIDENCE. Declarations of assignor as evidence against assignee S91 In actions on justice's judgment 224, 225 EXCHANGE. Distinguished from a sale 1 Rules of law as to sales, apply to an exchange 1 EXECUTION. Levy after return day 436 Care of property seized under execution 430 Seizure of the property of the wrong person 436 Neglect to arrest defendant under execution agdnst the person 431 Neglect to collect money under execution 432 Justification of levy orsale under execution 433 When valid judgment must be shown in support of 433, 434 EXECUTORS. When executor may maintain trover 555 May submit to arbitration 838 Payment to one of several executors is valid 911 Payment to administrator of living person 911 122 970 INDEX. FACTORS AND BROKERS. page. Right to compensatioa for services 362 Essentials to broker's right of actioa. 303 When entitled to commissions 363 Presumption that dealings are according to customs of . 363 When real estate brokers entitled to commissions 363, 864 Seller may employ two or more brokers .-...-.-. 364 Acting for, and charging commissions against both parties^.. 364, 365 Has sufficient interest to maintain trespass •548 FALSE EETURK Liability of justice for 443 Liability of sheriff or constable for 444, 445 FENCES. Where to be located 500 Ownership of party walls , 501 At common law owner must fence in but need aot fence out 501 Trespasses by cattle through division fences 501, 503, 503 Right of towns to prescribe wha;t shall be lawful fence 503, 504 When party bound by prescription to maintain 504, 505 Statutes relating to division fences 491-495 Amount of fence each owner is required to build 495 Fence viewers, who are 495 FIRE INSURANCE. (See Instjkance.) Actions on contracts of 190 FISH AND GAME. Statutes for the protection and, preservation of 525, 541 Election of game constable 538 Duties of game constable 539 Jurisdiction of action for penalties 536-539 FIXTURES. What are, between heirs, executors, etc. , 336 The test 227 Annexation a question of fact 238 Water wheel, etc., of mill 337, 228 Grass and fruit 227 Growing crops 227, 238 Hop-poles 228 Pump and pipe, balances and scales and beer pump 328 Erections by life tenant .... 228 What are between landlord and tenant 228, 229 When right to remove must be exercised , 229, 230 Building erected by tenant -. 230 Ball room 330 Cider mill and press 330 Hea;ter 330 Copper stills, kettles, steam tubs, etc 230 Engines and machinery v > . . . . 230 231 Gas fixtures 230 INDEX. 971 FIXTURES -- GonUnued. page. Gas pipes 230, 231 Sitting stools 330 Rails 280 Posts and boards ^, 231 Mirrors .^. ........ . 231 Wine plants 231 Nurseiy trees and shrubs 231 What are, between vendor and purchaser of real estate 283 General rule 233 Gas fixtures and mirrors 283 Machinery 333, 284 Buildings 284 Wine plants .284 Nursery trees .^ 234 Fencing material _ 234 Growing crops 235 Stoves 235 Steam, engine and boiler 285 What are, between mortgagor and mortgagee. . . 235 General rule 236 Agreement as to chattels affixed 286 Engine and boiler 236, 237 Salt-pans 236 Looms in woolen factory. 286 Growing crops 237 Hop-poles 237 Furnace 287 Statue 237 Platform scales 387 Manure 237 How far subject to mechanic's lien 237 When liable to an execution 238 FORFEITURE. Of insurance policy ..,,, 198 FORGED PAPER. Payment in, no payment S15, 916 FORMER ADJUDICATION. Law favors settlement of disputes 735 Former lecoverj by plaintiff as a defense 785 Former suit when plaintiff set off demand 736 Former suit and neglect to interpose counter-claim 738 Former action and judgment for defendant 740 Defense must be pleaded 741 Judgment when a bar, and how far conclusive 741 Splitting demands arising on contract 745 Splitting demands for torts 747 Subject of second suit matter of defense in former action 748 Former recovery must have been on the merits 749 972 INDEX. FORMER ADJUDICATION— Co?i«mM«i. page. Must be between same parties 750 Must be for same subject-matter 751 Conclusiveness of judgment 753 Proof of subject-matter of former suit 753-755 Want of jurisdiction in court 755 FRAUD. (See Statute op Fbauds.) Defined 619 Fraudulent representations as to credit of a third person 424 When not actionable without resulting damage 425, 426 Essentials to a right of action for false representations 425 When a person may recover upon misrepresentations made to the public. 426 When officers of a corporation are liable for misrepresentations 426 Knowingly representing insolvent person as solvent 427 Misrepresentations made without knowledge of the facts 427 False statements made under mistake as to the facts 427 False statements recklessly made without knowledge 437 Expressions of opinion as to credit or character 428 Intent to defraud or deceive essential to liability 427, 428 Advantage to defendant not essential to liability for 428 Concealment of important facts 428 Reliance on representations made, a question of fact 438 Knowledge or negligence on part of the plaintifE 633 Transfer of paid note as a valid demand 428 Compromise procured by false representations 429 Prevention of performance of contract by third person 429 Damages for loss of sales caused by false representations 439 In sales, exchanges or otherwise 619 Not presumed 620, 621, 623 Vitiates every contract 630 Good defense to promissory note 620 Innocence of fraud presumed 630 Always a' question of fact 621 Intent a material inquiry 621 Proof of fraud 631, 623 Party not allowed to take advantage of his own fraud 632 No deception, no fraud 633 Negligence of plaintifiE in not making inquiries 623 Right of plaintiff to rely on statements of defendant 634 Reafflrmance of contract after knowledge of fraud 624 Fraudulent concealments in sales and exchanges 625 When silence of vendor not fraud 625 636 629 Fraudulent representations as to effect of contract 629 Fraud, to be actionable, must relate to material matters 629 Knowledge on part of defendant of falsity of statements 630 Liability of infant for 668 Recoupment of damages for 757 Title to goods purchased from fraudulent vendee 35 Sale or delivery of goods procured by fraud 55 raDEX. 973 FRAUD — Continued. page. Fraudulent vendee acquires no title as against vendor 55 Vendor may maintain trover or replevin against vendee 55, 56, 65 How the right of defrauded vendor to reclaim goods can be defeated. . 56 What representations will avoid a sale 56 Purchase by insolvent vendee with intent not to pay 56 Sale procured by fraud of agent of vendee 56 Duty of insolvent purchaser to disclose his insolvency 56, 57 By concealment of the truth 57 Declarations of vendee to show fraudulent intent 57, 58 Creditors of fraudulent vendee can acquire no title as against vendor . . 58 Eight of defrauded vendor to reclaim his goods 55, 56, 58 Title acquired by ionajide purchaser from fraudulent vendee 59 Rescinding contract of sale for fraud 63 Credit given to vendee is avoided by fraud " 65 Eight of action for breach of warranty and for fraud distinguished 75 FBAUD, STATUTE OF. (See Statute of Fbatos.) General principles , 239-245 Contracts not to be performed within one year 245-257 Promises to answer for debt, default, etc., of another 257-273 Sales of interests in land, etc 273-284 Agreenients not within the statute 284-287 Leases for one year or upwards 287-388 Sales of chattels, etc., for more than $50 110-126 Fraudulent sales, assignments, judgments, etc 288-297 PEAUDULENT REPRESENTATIONS. (See Fkatid.) By vendee, as to his solvehcy or credit, avoids sale 55 Character of the representations made 56 Representations made to third parties when evidence 57, 58 As to character of negotiable paper, etc 183, 183 When amounting to an estoppel 184 GAME. (See Fish and Game.) GAME CONSTABLE. Election 538 Duties 539 GAMING CONTRACTS. (See Betting and Gaming.) GENERAL DENIAL. (See Denials; Pleadd^gs, etc.) GIFT. How distinguished from a sale 1 From husband to wife 307, 311 From father to minor son, of time and future earnings 341 GOODS BARGAINED AND SOLD. Action for 345 Must be contract of sale 345 Delivery need not be shown 345 Title must have passed 345 Vendor may retain possession until paid 346 May recover price 346 974 mDEX. GOODS BARGAINED AND SOLD — Omtinued. page. May sue for price or resell and sue for difference 346 Vendor must show performance on his part. 346 Must Show vendee in default - 346, 347 Rescission of sale by vendor 347 Notice of arrival 347 Vendor in position to deliver, regarded as owner 347 At what day vendee may be required to perform 347 GOODS PURCHASED AND REFUSAL TO DELIVER. Actions for 347 Valid contract of sale must be shown 347 Performance or readiness to perform must be shown 348 Tender and demand 348 Measure of damages . 348, 349 GOODS SOLD AND DELIVERED. (See Sales.) GUARANTY. Statement of the consideration 242 HIGHWAYS. Obstruction of 447, 448 Unguarded excavations adjoining 448 Penalty for obstructing 466 Title of owner of fee in 479 Trespass for carrying away soil from. , 480 Erecting stalls upon the side of 480 Highway as a boundary 480 HUSBAND AND WIFE. Marriage a mere civil contract 298 Requires no form or ceremony 298 Is conclusive upon the parties 298 Presumptions as to 298, 299 Proof of. 299 Age of parties '. 299 Consent of parents 299 Idiots or lunatics cannot contract 299 Procured by fraud, etc., void 300 Duress ' 300 Rights of married women 300 At common law 300 Husband and wife no longer one person 301 Marriage does not operate upon property 301, 306 Statutes relating to 301-306 Actions by and against 306 May carry on trade or business 306 In what business may engage 316 May enter into contracts' '. . 806 Liabilities incurred in business 307 May purchase property upon credit 307 Liability for consideration money 307 INDEX. 9'75 HUSBAND AND WIFE — Continued. page. Power of disposition absolute , 307 Conveyance to, by liusband. . . ., 307, 308 Loans to husband 307 Gifts to, from husband ..,..■ 307 Conveyance of land directly to husband 308 Services and earnings 308-310 Services of husband in management of her business 310 Partnership with husband 310 Jewelry and ornaments presented to her 311 Action by, against husband 311 Liability of married women on contract , ,. . . 311 Judgment against, may be rendered and enforced, in any court 312 When personally liable 313, 313 For, purchase-price of property , 313, 319, 321 On contract implied by law 313 On contract made by husband or agent in her business 314, 315 Estoppel ; 314 Presumptions against 314 For acts of agent in excess of authority 314 Ratification of purchase for benefit of her estate 315 Carrying on separate business, what is 315, 316 In what business may engage 316 For services of husband 316 On contracts with persons other than husband 316, 317 When contract for benefit of separate estate 317 For improvements on her land under contract with husband 317, 318 For rent of property leased to her 318, 319 On covenants in her deed 319 To pay mortgage assumed by her 319 When intent to charge separate estate is expressed in instrument 319 Intent must be expressed in original contract 819, 323 Charge may be created by parol 319 May ■ be inferred 333 Liability on note, when must be shown 319, 320 Instrument' charging separate estate, when construed with note ; 320 On undertaking on appeal ,. 320 Requisites of complaint on obligation of 330 Coverture as a.defeuse must be pleaded 331 Assurpty.,., , 323 On .promise to pay joint note..,,^ 323 For debt contracted by. her as agent of, husband 333 LiabjUty of maiTJed .women for wrongs 333 In .management .and .control of separate estate-i 333, 334 Wife may be agent. of husband . 335 Liability of husband for support of .wife.... 335 For necessaries 335, 337, 331 Not liable if, g.o.o.ds. furnished wife on her. separ.ate credit; 325 Eqi: goods above station in. lifo; 336 Mu9t properly clothe wife, ...., , 336 976 INDEX. HUSBAND AND WIPE — Continued. page. EfiEect of forbidding credit to wife 327 Turning wife away gives credit for necessaries 328 Abandonment by wife rendered necessary 328 Abandonment by wife not justifiable 329 Pending proceedings for limited divorce 328 Adultery of wife 330 Separation by agreement and support paid 330 Elopement of wife 330 Must pay stipulated sum 331 Tradesman selected by husband ; 331 Holding out woman as wife 381 Necessaries furnished during his insanity 331 Liability for torts of wife 331, 832 Actions under Civil Damage Act ■ 644-649 IDIOTS. (See Lxjhatics.) ILLEGALITY. Of contract sued on, as a defense 694 Courts will not enforce illegal contract 695 Distinction between executed and executory contract 695 Is never presumed 696 Of contracts in restraint of trade , 696 Of contracts tending to corrupt legislation 703 Of wagering, betting and gaming contracts 403, 404, 704 Of contracts in violation of Sunday laws 704 Of contracts tending to promote prostitution 707 Of contracts against public policy 709 Of acts or sales by unlicensed persons 714 Of usurious agreements or contracts 156-189, 715 Of contracts in violation of statute 715 When illegality goes to part of contract only 717 INDORSEE. May charge for indorsing note 169 Action against, and amount of recovery 170 May interpose defense of usury 178 INFANCY. (See Pakekt and Child.) Who are infants 663, 663 What acts are void or voidable 668, 664 Eight of infant to disaffirm contract 73, 664, 667 Duty to refund on disaffirmance 73 False representations as to age 664, 670 Time of disaffirming 665 Affirmance or ratification by infants 665 What amounts to an affirmance or ratification 665 New promise 666 Liability for torts or wrongs 667 No defense for a tort 668 As a defense to torts springing from contracts 669 No defense on abastardy bond 670 INDEX. 977 INFANCY — Continued. page. Liability for necessaries 670 What are necessaries 670, 671 Necessaries furnished wife or children 671 When not liable for necessaries 671 Actions against infanta 673 Admissions by infants 673 Must be pleaded 673 INFANT. (See Infancy.) Who is an infant ^ 663 May marry 399 Actions by, for services 341 Actions by, for injuries 343, 344 Cannot submit to arbitration 833, 839 Guardian of, may submit to arbitration 838 INSOLYENCY. Sales procured through false representations as to solvency 55 Purchases by insolvent vendee with intent not to pay 56 Concealment of, when not a fraudulent act 56, 57 Defined 106 Eight of stoppage in transitu as against insolvent vendee 106 INSURANCE. Insurable interest 190, 191, 193, 193 Who may sue on policy 190 Action by assignee of policy 190, 191 By mortgagor 190 By mortgagee 191 By assignee of policy as collateral 191, 193 On goods sold at sheriff's sale 193 On property held in trust 193 By one partner 193 What interest covered by policy 193 Action lies before delivery of policy 193 Parol contract 194 Risk incident to repairs _ _ 194 What statements by insured a warranty 194, 195 Conditions in policy 196, 197 Breach of conditions, effect of 197 Discrepancy between written and printed parts of policy 197 Waiver of forfeiture, estoppel 198 Condition as to time of suing 199 Agreement for renewal, waiver of premium 199 Agents, acts of, bind insurer 200 When bind applicant 200 Authority of, in taking risks 300, 301 Notice of loss 201 Proof of loss 303, 303 Loss, when payable 204 Transfer of right of recovery 204 123 978 INDEX. mSUEANCE— Continued. page. Subsequent insurance 204, 305 Notice of 205 What covered by policy 205, 206, 207 Negligence of insured 206 Piemium notes 207 Form of 208 Liability on subscription note 208 On premium note 209 On stock note 209 Note of third person for premium 209 Deductions from premium notes 209, 210 Note in renewal of premium note 310 Canceling policy, cfEect of 310 Surrender of notes 310, 311 Note to increase capital stock 210 Negotiable premium notes 311 Transfer of, when valid 211 Notes made to give company credit, valid 211 What operates to cancel note 313 May insure for fixed premium instead of note 213 How long member liable for losses 312, 213, 214 Alienation of property does not avoid liability 213 Diversion of notes 314 Insured cannot deny corporate existence 314 Premium note for too large amount is void 215 Set-ofE in actions by receiver 215 Stock note due immediately 316 Altering charter 316 Difference between stock and premium notes 216 Assessment of notes for losses 315, 317 Notice of 218 No action lies until conditions performed 218, 219 In case of insolvency 219 Liability of maker not increased by insolvency 219 Diversion of premium note 220 Company bound by statements of agent 220 Order of court that receiver make assessments, effect of 220 Assignment by company for benefit of creditors 220 Loss, to whom payable 230 INTENT. To hinder, delay and defraud creditors 288 Benders conveyance, assignment, etc., void 288 Unlawful intent of assignee not material 390 Intent of mortgagor does not aSect tona fide mortgagee 290 Corrupt intent essential to constitute usury 160, 161 INTEEBST. (See Ustjby; Damages, etc.) Defiued 137 Statutes fixing the rate of interest 137 IKDEX. 979 INTEREST — Continued. page. Less than statutory interest may be stipulated for 137 Presumption as to rate, in absence of agreement 138 By the laws of what State governed 138 Express agreements to pay interest 189 Maybe reciDverable in absence of express promise to pay 139, 140 Upon covenants to pay rent 139 When allowed in action upon unliquidated demands 139, 141, 143 Upon legacy, how computed 140 Upon moneys due under policy of insurance 141 Upon unliquidated demand for work, etc 141 Upon account for goods sold ■ 143, 143 Upon a balance of account 148, 144 Upop a compromise of a disputed claim 144 When allowed from the commencement of the action 144 Upon a chattel note 144 Upon a premium note , 145 Upon a contract for the sale of lands , 145 Upon a cash sale 145 Upon promissory notes, bills of exchange, etc 145, 146 As damages, in cases of trover, trespass and replevin 146, 147 Upon value of property lost or negligently destroyed, etc 147, 148 Upon a judgment 138, 148 Compound interest, when allowed 148-150 When due and payable '150 EfEect of including in mortgage interest not legally collectible 151 When payment of principal bars action for interest 151 Recovery of interest on penal bond 153 Upon what items a cominission merchant may charge 153 When a demand is necessary to set interest running 153, 153 Upon recovery against a constable 153 Rule for computing interest 153, 154, 157 Upon mutual accounts 155 Tender of payment of principal to stop running of interest 155 Does not run while the payment of principal is enjoined 155 INTOXICATION. (See Civil Damage.) What injuries are in consequence of 645 As a defense to actions on contract 675 As a defense to actions on torts 677 JOINT DEBTORS. Judgment against 333 JOINT TENANT. May insure his interest separately. 193 JUDGE. Liability of, for judicial acts 430 Judges of election are judicial oflScers 431 JUDGMENT. Jurisdiction in actions upon 233 By confession. 233 980 INDEX. JUDQcUE^T: — Continued. page. Actions upon 232, 223 Costs 222, 223 Requisites of complaint 223 Proof of jurisdiction of justice rendering judgment 224 Evidence 225 Against joint defendants 223 Filing transcript 223 Actions upon 223 When fraudulent as to creditors 288 Bears interest from date of entry 148 Rate of interest recoverable upon a judgment 138 As an estoppel 935 For defendant, conclusive evidence in his favor 740 In favor of two defendants, when a bar to action against one 740 When a bar, and how far conclusive 741-755 JURISDICTION. Of justice in action on judgment 222 Proof of, of justice who rendered judgment 223, 224 Of inferior tribunals, never presumed 545 When not acquired 545, 546 Want of jurisdiction as affecting ministerial officers 550 Liability of parties, justice and officers for acts void for want of, 432, 434, 435 Statutory mode of acquiring, must be followed 435 Impeaching jurisdiction 435 JUSTICE OF THE PEACE. Not liable to action for judicial acts within jurisdiction 430 Liability for issuing criminal warrant, when not de jure 431 Liability for acts done without jurisdiction 432, 435 May recover fees from party requesting the service 371 LANDLORD AND TENANT. Action for use and occupation 407-411 (See Use and Occupation.) Liability of lessor and lessee for nuisance 453, 455 Landlord cannot dispossess tenant by force 482 Action by landlord for injury to reversionary interest 552 Recoupment by tenant in action for rent. 759 When tenant estopped from denying landlord's title 948 LAW OF THE ROAD. Statutes in relation to 606, 607 Construction of statute 607, 608 Actions for collisions on highways 607-610 Injuries caused by runaways 610 LEASE. (See Landlord and Tenant.) Oral leases for one year are valid 257, 274, 287 Lease for more than one year must be in writing 274, 280, 287 Action will not lie for refusal to give possession under void lease ... 287 Liability of tenant in possession under a void lease 287 Lease of a pew for more than one year must be in writing 277 INDEX. 981 LKASE — Continued. pagb. To married woman 318 Of personal property, when deemed a sale 3 Of farm with stock, when a sale of the stock 3 Of chattels with agreement to sell, etc 3, 31 LEQAOT. rrom what time interest runs 140 LESSOR AND LESSEE. (See Landlokd and Tenant.) Liability of lessor for negligence of lessee 598, 599 Lessor cannot maintain replevin during lease 633 Liability under the Civil Damage Act 644, 688 LICENSE. When proof of a license essential to recovery 357 In actions by school teachers 366 In actions by physicians and surgeons 368 Of physician to practice presumed 369 Penalties for selling liquors without 463, 464 Person not liable as trespasser for acts done under 483 Implied license to enter lands 488, 484, 488, 489 A justification until revoked 484 Parol license will not give permanent interest in land 484 Easement cannot be created by parol license 484 Implied authority arising from express license 485 Distinction between license and easement 485 Every license revocable 485 To occupy land, how revoked 486, 487 Not a justification for acts after revocation 486 Is a mere personal privilege 487 When irrevocable 487 Given to one person cannot be extended to another 488 Abuse of license makes party a trespasser 489, 490 LIMITATION. (See Statute of Limitations.) Of time of commencing action to recover back usury paid 157 Of time to commence action on policy of insurance 199 LUNATICS. Lunacy as a defense 672, 674 Incapable of giving assent 673 Cannot contract valid marriage 299 Liability on contracts generally 673 Liability for necessaries 673 Mortgage by lunatic voidable but not void 674 Lunacy no defense in actions for torts 674 Proof of lunacy 675 Cannot submit to arbitration 832, 839 MARRIAGE. (See Husband and Wife.) Nature of contract 298 MARRIED WOMEN. (See Husband and Wifb.) Rights, duties and liabilities of. 300-324 Eight of action under Civil Damage Act 644-649 , 982 INDEX. MARRIED WOMEN— Continued. page. Have power to arbitrate 839 MASTER AND SERVANT. Actions for enticing away servants 436 Election as to form of action 437 Essentials to the right of action 437 Actions to recover for labor and services 351 When contract to pay for services will be implied 353 When not implied 354, 355 When master not liable for willful acts of servants 548 Liability of master for injuries to servant 600-604 Liability of master for negligence of servant 595-600 Right of action by employer under Civil Damage Act 644 Liability of master for sales of liquor by servant 650 MEMORANDUM. Of contract of sale required by the statute of frauds 110, 239 Form and contents of the memorandum 110, 111 Subscription to the memorandum Ill, 113, 113, 339, 382-284 MERGER. By substitution of new contract for original 734 Simple contract merged in contract under seal 734 No merger where security is taken as collateral 735 No merger between securities of same nature and degree 736 Debt not merged in debtor's note 736 Sealed notes not merged in bond and mortgage 736 Taking mortgagor's note no waiver of mortgage 736 Taking security from maker does not discharge indorser 726 Prior matters merged in compromise 726 When parol contracts do not merge in sealed instrument 727 MISTAKE. Contracts entered into under mutual mistake of facts are invalid 6 As to the person virith whom a contract is made 7 Of facts as to a sale 7 As to subject-matter of sale distinguished from mistake as to collateral matter 7 As to existence of subject-matter of a sale 9, 10 In computation of interest, does not render transaction usurious 167 Recovery of money paid under a mistake of fact 394, 395, 396 Recovery of money paid under a mistake of law 397 Mistake of foreign law is a mistake of fact 395 MONET HAD AND RECEIVED. Nature of action for 391 What may be shown as defense to action for 391 Action must be for money which defendant ought to refund 391 Presumption of promise to refund money 391 Recovering back moneys paid under illegal contract 391, 392 Money paid for services not rendered 391, 393 Employer may recover moneys won from clerk 392 Moneys advanced for unlawful purpose 393 INDEX. 983 MONEY HAD AND 'KECMVED — Continued. page. No recovery for voluntary payments and gratuities 393 Action by paying indorser against prior indorsers 392 When the action lies between mortgagees 392 Action by surety for moneys paid on judgment. 392 Presumption of promise to pay moneys received for use of another. . 393, 394 Action against receiver of money for use of another 393 Actions to recover over-payments 394 Moneys paid under mutual mistake of fact 894, 395 Payment of forged paper 395, 396 Over-payments for lands in consequence of erroneous survey 395 When an indorser may maintain the action 395 Ignorance of foreign laws is ignorance of facts , . 395 When moneys paid under a mistake of fact cannot be recovered 396 What must appear to authorize recovery of moneys paid by mistake 396 Negligence of plaintiff no bar to the action 396 Payments made in ignorance of the law ; 397 Moneys obtained by oppression, imposition, extortion or deceit 397 Moneys obtained from intoxicated person 398 Payment under duress of just demand 398 (See DuBBSs.) Payments made under protest 398, 399 Kecovery of moneys misapplied 399 Collection of debts by partner after assignment of interest. .■ 399 Recovery of illegal fees exacted by public officers 399, 400 Moneys paid sheriff after illegal levy 400 Illegal costs exacted on settlement of action 400 Implied promise to repay money on failure, etc., of consideration. . . 400, 401 Kecovery by vendee on default of vendor 401 Recovering back money after rescission of contract 402 Recovering back money paid on illegal contract , 402 Recovery of money deposited with stakeholder 408 (See Wagkb; Betting ahd Gaming.) Action by tenant in common against co-tenant 405 Action between principal and agent 405 Action against sheriff or constable for moneys collected 405 When demand necessary before suit 406, 407 When no demand necessary 407 MONET LENT AND ADVANCED. If at request, action lies for 876 Need not be advanced to person liable to pay it 376 Fraud in procuring loan may be waived and action brought for 876 Must be affirmative proof of loan 376 Money received presumed to be payment 376 On illegal draft 376, 377 By one partner to firm 377 Check or note no payment of 877 Extension of time for payment procured by fraud void 877 Money deducted by agent from collections 377 984 INDEX. MONET LENT AND ADVANCED— Continued. page. For illegal purposes 377 To agent of firm 378 On agreements to substitute notes 378 On consigned goods, how repaid 378 MONEY PAID, LAID OUT AND EXPENDED. Must be at request, actual or implied 378 By surety 379 Unnecessary expenses cannot be recovered 379 Is entitled to reimbursement 379 Cannot maintain action for, on giving bond to discharge liability 380 Exchanging notes 380 No right of action on mere liability to pay 380 Payment need not always be in money 380 By negotiable note or bill 380 In consequence of wrongful act of defendant 381 By broker 381 By accommodation acceptor in action on accommodation paper 381 . For legacy duty, by executor 381 ' Without consent 382 When action will not lie on promise to repay 383 By request of agent 383 Voluntary payments 383, 384 Upon disputed claim 384 For erroneous tax 384 Contribution by sureties 384 Express agreement between sureties 384 How discharged from contribution 385 No contribution among joint tort-feasors 385, 386 For funeral expenses of wife 386, 387 Of testator, executor's liability for 386 To wife of defendant 387 Upon illegal agreement 388 Under compulsion 388, 389 On contract afterward rescinded 389 On contract for sale of real estate 390 On agreement within statute of frauds 390 For taxes, etc., by tenant 390 Interest on 390 Invalidity of claim paid no defense to action for 390 MORTGAGE. Based upon usurious consideration, is void 188 MORTGAGEE. May maintain trespass against wrongful taker before mortgage due 543 Liable in replevin for taking property before default 633 When entitled to replevy the mortgaged property 634 When may maintain action on insurance policy 190 MORTGAGOR. Has insurable interest in mortgaged property 191 INDEX. 985 MUTUAL ACCOUNTS. (See Statute of Limitations.) page. When cause of action is deemed to have accrued on 793 What are or are not 793, 794 When action on, barred by the statute of limitations 793-796 NECESSARIES. (See Parent and Child ; Husband and Wife.) What are necessaries 670 Liability of infant for 670 Liability of husband for 825, 331 Liability of parent for 333-339 Furnished to lunatics, or idiots, liability for 673 NEaLIGENCB. Defined 585, 586 A question of mixed law and fact 586, 587 In the kindling of flres 587, 604, 605 Of insured, no defense to action on insurance policy 206 Not actionable unless proximate cause of injury 588 Contracts against liability for 589 In the preparation and sale of medicines 589 Defendant's negligence must contribute to injury 590 Plaintiff's own negligence a bar to his action 590 Plaintiff must be free from contributory negligence 590 Any degree of contributory negligence a defense 591 Negligence of stranger no defense 591 Of plaintiff not contributing to the injury 591, 593, 694 Attempts to avoid injury to person or property 592 Intoxication of plaintiff at time of injury 592 Permitting cattle to stray from highway 592, 593 Of parents and guardians, when a defense 594, 597 Contributory negligence of infants , 594 Liability of one person for acts of another 594 Liability of master for negligence of servant 595-600 Failure of railroad companies to maintain fences 598 Liability of lessor for acts of lessee 598, 599 Liability of owner for negligence of servants of contractor 598, 599 Liability of master for injury to servant by fellow-servant 600-602 Liability of master for furnishing defective machinery 602-604 Want of care in selection of servants 602, 603 Of attorneys, in the collection of demands 606 In relation to the law of the road 606-611 When the statute of limitations commences to run against 787 When interest allowed as damages in action for 147 Of attorneys, bars right to compensation 360 Liability of attorney for 361, 362, 606 Of physician, bars right to compensation 869 NEW PROMISE. By infant, effect of 666 To revive action barred by the statute 797 Must be in writing 798 Must be signed by the party 799, 124 986 INDEX. NEW PROMISE — Continued. page. Conditional promise. 808 By whom made. 809 To whom made 810 Will not revive an action for tort 811 NOTICE. To insurer, of loss 203 Of subsequent insurance 204 To vendor to defend suit aginst his vendee 102 Or knowledge of vicious propensities of animals 611, 615 NUISANCE. Defined 445 May be public or private 445 Lawful business may be a nuisance 446 Acts expressly authorized by statute are not 446 Abuse of statutory right may become 446 Plaintiff must prove special damage in action for public nuisance 447 Obstructions of highways 447 Obstructions of sidewalks 448 Unguarded excavations on private property 448 AfEecting personal health or comfort 449 Ofiensive odors 449, 450 Pat-boiling establishments 449 Hog-pens and cattle-yards in a city or town 449 Pollution of water _ 449, 450 Livery-stables in cities 450, 451 Jails and pest-houses near dwellings 451 Persons sick of an infectious disease 451 Bowling alleys 451 Dangerous animals 451, 452 Barking and howling dogs 453 Noise 453 AfEecting real estate 453 Overhanging eaves, cornices, gutters, etc 453 Discharging water on adjoining premises 453 Overhanging trees 458 Liability of occupant of leased premises for 453, 454 Liability of lessor of premises for 454, 455 Maintaining nuisance created by another 454 Every continuance is a fresh nuisance 454 Liability of purchaser of lands for existing nuisance 454 Eequeats to abate, when required 454, 455 Remedy by abatement 455 Who may abate 455-457 Unnecessary injuries in abating nuisance 457 Amount of damages recoverable 457, 458 When statute of limitations runs against 458 OATH. Of arbitrators 847 INDEX, 987 OATH — Continued. page. Of witnesses on arbitration 848 OFFICE AND OFFICER. (See Sheriff; Constable; Justice o* THE Peace, etc.) Actions against officers for official neglect or misconduct 430 Liability of sheriff for injury to property levied upon 430 Liability of judicial officers for judicial acts 430, 431 Liability of judicial officers for ministerial acts 431, 432 Liability of de facto officers for official acts 481 De facto officer cannot be compelled to act 431 Neglect of duty or abuse of trust by ministerial officer 431 Neglect to make arrest 431 Neglect to collect execution 433 Liability for acts done ■without jurisdiction 433 Liability for exacting illegal fees 399 Ministerial officer not liable for executing process regular on its face. 433 550, 551 Executing process issued by de facto officers 483 Liability for executing irregular, illegal, or void process 433, 435, 551 Distinction betvsreen evidence in justification and in support of action. . . 433 When an officer must go back of process and show valid judgment 433 484, 553, 557 Actions for injuries arising from void proceedings .'. 435 Officer not protected in executing warrant not directed to him 435 Justice acting without jurisdiction, liable to party 435 Statutory mode of acquiring jurisdiction must be followed 435 Impeaching judgment for want of jurisdiction 435 Liability for taking property of the wrong person 486, 551 False representations by officers of corporations 436 Failure to file oath does not affect compensation 372 An office not property 373 Payment of salary to de facto of&cer 372 Bights of person wrongfully kept out of office 372 When ministerial officer may maintain trespass 543 When levy by officer a trespass 545, 546 When not liable for levying upon exempt property 549 Liability of officer in replevin for wrongful levy 631 PAEENT AND CHILD. Parent must maintain child 333 How long liability to support continues 833, 386 Not to allow wandering in streets , 333 Liability for necessaries furnished by third person 334 Not liable if he supplies necessaries 834 Parent to judge of wants 8S4 Not liable when living with relatives against consent 835 If child leaves, not liable even in sickness 335 Nor when he is willing to support 335 Must be in default tobe liable 336 I Age and physical condition of child as affecting liability 836 988 INDEX. PARENT AND CHILD— Cmtinued. page. Liability after permitting child to purchase on his credit 335 Necessaries, a question of fact 336 Ratification by mother of purchase on credit 335 Husband cannot recover for support in his family of infant granddaughter of wife 335 Child's estate sometimes applied to support 336, 337 Mother, when not liable for support of child 337 Statute aa to support applies only to relatives by blood 337 Husband''s liability for wife's children 337, 341 Son-in-law not liable for wife's mother 337 Support of grandparents , 337 When express promise creates no liability 338 Agency of child as ground of liability . 338 Infant liable for torts 338 Remedy of injured party against child alone 338 Father liable for negligence of son while acting for him Education of children 333, 338 Rights of parents 389 May enforce discipline Entitled to custody and earnings 339 OfEset to action for wages , 340 Mother's consent to bind out 340 Proof of paternity in action for services 340 Services for parent after twenty-one 340, 341 Services for step-parent 341 Emancipation of child Neglecting to provide for, cannot claim wages 341, 343 Notice under statute of claims to wages 343 Contract by parent for services of himself and child , 343 Recovery for injury to child 343 Action for indecent assault on daughter 343 For seduction of daughter 343 For seduction of step-daughter 343 No action for expelling from school 343 Action by infant 343, 344 Negligence of parent, when imputed to child 594 Right of action under Civil Damage Act 644-649 PARTIES. Who to bring action on fire insurance policy 190, 191 Joinder of husband and wife 333 Remedy of party for wrongful levy upon property 434, 435 Liability of party for illegal acts of officers 435, 436 Liability for taking goods under void attachment 545 When liable for irregular execution of process 546 Liable for directing wrongful levy 546 Must assent to or ratify the trespass 547 Not liable for merely causing process to issue 547 Joinder of defendants in trespass 547 INDEX. 989 PARTIES — Continued. page. PlaiDtiffs in trover 554 Defendants in trover 659 Plaintiffs under Civil Damage Act 644-649 Joinder of defendants under Civil Damage Act 644, 649 PARTNERSHIP. Between husband and wife 310 Replevin does not lie between partners for partnership property 639 Release of partnership debts 826 Release of one of several partners 829 Insurance of partnership property by one partner 193 PART PAYMENT. (See Payment.) When it "will remove the bar of the statute of limitations 811 Implied promise from 811 By whom made 813 To whom made 815 How made 816 By bill or note 818 In goods, chattels, etc 819 Must be voluntary 819 Oral admissions of payment 819 When not a discharge of the debt 821, 832, 873, 874, 875, 913 PAYMENT. Of purchase-price of goods, when to be made on delivery 15, 18 Title to goods purchased may pass without 17, 19 Recovering back overpayment for goods purchased 6 When title to goods purchased will not pass before 18 When vendee acquires no right in goods before payment 18 Agreement that title shall pass before payment, when implied 19 Presumption of waiver of condition as to payment 20 Contracts that title shall not pass before payment 25 Place of payment of a chattel note 43 When delivery must be complete before vendor can demand payment 46, 47 Time of payment for goods sold 138, 129 To give validity to a contract of sale within the statute of frauds 121 Time of payment 131, 132 Extending time on usurious consideration 176 Payment by purchaser's note or check 133 By application upon existing debt 133 To agent of the vendor 124 By note of third person 129 Return of note received in payment on rescission of sale 71 By vendor's own notes 131 Proof of, or tender, in action against vendor 133, 135 When payment cannot be demanded before delivery 135 Presumption as to the place of payment of a debt 138 As a defense 907 Of debt after suit, but without costs 907 By taking possession of mortgaged chattels 908 990 INDEX. PAYMENT — Continued. page. By sale of mortgaged chattels 908 By conversion of collaterals into money 908 By acceptance of devise of real estate 908 By application of money to use of creditor 908 Other than in money 808, 809 Must be accepted by creditor 910 When it does or does not extinguish the debt 910 By whom 911 ■ To whom 911 When part payment will or will not discharge the debt 821, 822, 872, 874 875, 913 By letter 914 In forged paper 915 In bank bills 916 By check 917 By note or bill 918 Application of payments 933 (See Application of Payments.) Must be pleaded 938 Money paid, laid out, expended, etc 378 Voluntary payments cannot be recovered back 383, 393, 398 Of disputed claims, how far conclusive 383 Of money, under protest 383, 384, 398 Under void agreement 388, 390 Under duress 388, 389, 398 Upon illegal contract cannot be recovered back .* 403 PENALTIES. Jurisdictipn of a justice in actions for - 458 Provisions of Code in relation to 459, 460 Plaintiffs in action for 461 Penalty cannot be raised by implication 461 Construction of penal statutes 463 Statutory penalty does not affect common-law remedy 463 When one penalty only recoverable 463, 463, 467 When several defendants may be joined 463 When separate actions must be maintained 463 Qui tarn actions •. 463, 466 Repeal of statute giving penalty 464 Agent cannot subject principal to penalties 464 For forcibly or fraudulently passing toll-gate 46S, 466 For selling strong or spirituous liquors 467 For violation of flsh and game laws 525-541 PERFORMANCE. (See Contracts.) Party preventing performance cannot complain of non-performance 728 Default in doing first act . . . 730 Of cumulative and alternative stipulations 730 Time of 731 Mode of 732 INDEX. 991 PERFORMANCE— Continued. pagk. Substantial performance sufficient 733 Excuses for non-performance 734 Part performance 734 Non-performance of conditions precedent as a defense 905 PEWS. Rights in church pews 470 Remedy for disturbance of possession 470 PHYSICIANS AND SURGEONS. May maintain action for professional services 368 Prohibited from practicing without license or diploma 368 Rights and liabilities of unlicensed practitioners 368 Statutes relating to registration 368 License presumed .^ 369 Implied contract for skill 369 Presumption of skill and diligence 369 Liability for negligence 369 PLACE OF TRIAL. Of actions for trespass 473 PLEADINGS. (See Counter-claim.) Denials 651-656 Affirmative defenses 656, 659 What defenses must be pleaded 656 Statute of frauds 654 Infancy 657, 673 Coverture 657 Former recovery 657, 741 Recoupment 657, 765 Counter-claim 777 Statute of limitations , 658 Release '. 658 Arbitrament and award 658, 869 Tender 658 Failure of consideration 658 Payment 658 License 658 Usury 659 Justification in tort 659 Another action pending 660 Accord and satisfaction 880 Defendant must answer or demur 768 Answer may consist of denials or new matter 768 What is new matter. 768 When answer must be verified ', . 768 Mode of pleading tender 900 Estoppel by 841 Requisites of complaint in action on fire insurance policy 191, 193 On justice's judgment 333 On obligation of married woman 830 992 INDEX. PLEDGE. PAGE. Based upon a usurious consideration is void 188 Refusal to deliver pledge to owner when a conversion , . 558 Wrongful pledge of property a conversion 573 When replevin lies to recover pledge 188 POLICY. (See Insurance.) Actions on policies of fire insurance 190 POSSESSION. When sufficient to maintain trespass to lands 475-483 When sufficient to maintain trespass to personal property 541 A sufficient title in trover as against wrong-doer 554 May be actual or constructive 555 How far essential to action of trover 554, 555 PREMIUM NOTES. (See Insubance.) Nature and object of 307 Difference between, and stock notes 316 Interest recoverable on 145 PRESUMPTIONS. Of a promise to pay for services rendered 353, 353 As between parent and child 354 That physician is skillful and has not been negligent 369 That money received was a payment and not a loan 376 Contract to indemnify indorser or surety presumed 379 Of promise to refund money equitably belonging to another 391 That agent has received proceeds of sale 406 Fraud not presumed 630, 631, 633 Innocence of fraud presumed 630 No presumption of knowledge of the intended use of leased premises .... 649 Of inability of infant to contract 673 That person intended the consequences of his act 678 Sanity presumed 677 As to time of alteration of instrument 693 Illegality not presumed 696 Of fraud from retention by debtor of property sold 395 That a sale of goods was for cash 15 As to conditions attached to delivery of goods sold 30, 31, 35 As to the rate of interest payable upon a loan 138 As to the place of payment 138 Of knowledge of customs 142 PRINCIPAL AND SURETY. Contract that principal will indemnify surety presumed. , 379 Payment by surety necessary to action against principal 380 Amount recoverable by surety 380 Right of contribution 384, 385 PRIVITY. Not essential to a right of action for a tort 433, 423 PUBLIC POLICY. Contracts against, are void 709-714 INDEX. 998 PURCHASER. (See Bona Fide Ptjkchabbb.) pagbl When purchaser oi land may defend against usurious mortgage... 178, 179 180 Under judgment and execution may contest usurious lien or incumbrance. 181 Of notes on representation that, they are business paper 183 At sheriffs or constable's sale, when required to show valid judgment .... 434 RECEIPT. Conclusiveness of receipt in full 822 How distinguished from a release 830, 831 Is a mere evidence of payment 831 May be impeached or explained 831 RECEIVER. Of insurance company 215 RECORD. Estoppel by , 935 RECOUPMENT. (See Countek-Claim.) Defined , , , , . ^ . .. ...,......,......,.....,,, ^ . , 755 Included in counter-claim , ,.,».... ,,.. , ,.»..., 755 Distinction between set-off and recoupment. ,...,.,..,., ................. 767 Must arise out of the contract sued on ,...., ,,,,,,.,... .756. 758 In actions on notes , ....,, 756 Of damages for failure to fully perform-. ....,.., ^....... ......,,,... , 756 Of damages for breach of warranty ....,...,,.,...,..., »,,... , 757 Of damages for fraud , , ,,.,.,...,..,,.... .^ ... . 757 In actions for rent, etc .,.,.,,....,......,....., 759 Who may recoup ...,»...,, ,^.... .... .,.,.... 760 When not allowed sureties ..,,.,....,.,..,.,. 761 In actions for torts .,,.,, 762 Election to recoup ....._ ^. . .,..,, ,....,,...,,.,.....,.... 763 Effect of recoupment on defendant's right of action ....... .......... 763, 764 Defense must be pleaded ,...,,,..,.,....,.,..., 765 How affected by pendency of another action ...,..,.,......,., 765 What damages may be recouped. , ^ 763, 766 RELEASE. Defined , ,. , . . . 821 Must be under seal , ...... 821 Terms of , . , . . 821 Consideration presumed ,.,...,„..,.,,..., 821 If unsealed and without consideration, void .....,.,..,,...,., 821 Receipt in full will not take place of , , , , , 822 Instruments not amounting to releases ,. . 822 Upon what a release operates . 823 Upon present rights and existing interests 823, 831 Operation of general rele:^ , ....,....,.,,,. 823 Upon condition... ,.>..^ . ,.. 823 Construction , 824 Who may execute .,,..,...... 825 135 994 INDEX. RELEASE — Gmtinued. page. Of one of several parties 826 Of one of several joint debtors 836, 839 Of one of several joint and several debtors 837 Of one of several parties to bills and notes 837, 838 Of one of several wrong-doers 838 When implied by law 833, 838 Covenants not to sue 828, 839 Effect and conclusiveness of 830 May be impeached for fraud 830 Distinguished from a receipt 830, 881 Parol evidence to contradict 831 REPLEVIN. History of the action 630 When the action lies 631 When plaintiff had possession and equitable interests 631 Purchaser of property with title 631 By vendor against fraudulent purchaser 631 By vendor of property sold conditionally 631 ' By pledgor of property for usurious loan 188 ' By person having lien upon goods 631 ■ By officer after levy 631 By owner of property taken under process against another 631, 633 By receiptor of property 633, 638 ; Trespass and replevin not concurrent remedies 633 By mortgagor or mortgagee of chattels 633, 634 I Against innocent purchaser, etc 634 Demand before suit 634, 635, 641 For what property 635 Property taken by virtue of tax, fine, assessment or execution 636 When the action does not lie 638 For the wrongful taking 634 " By a defendant in replevin 639 When not the proper remedy to recover crops 639 Between partners or tenants in common 639 Where defendant never had possession or had the title 639 Against freight agent 639 For wrongful detention 640 Where defendant has wrongfully disposed of the property 641 Where the defendant offered to restore the property before suit 643 Damages recoverable 643, 643 Recovery of interest as damages 140 Assessment of damages by verdict 643 Recovery where plaintiff has only a special property 644 Title in a stranger as a defense 644 Lien as a defense , 644 RESCISSION. Of contracts of sale 63-74 Upon what the right to rescind depends 62 INDEX. 995 RESCISSION— Continued. page. EflEect of rescission 63, 74 Recovery back of money paid under a special contract 63 Breach of warranty will not authorize a rescission of the sale 65 Restoring benefit received on rescission of sale 67 Return of notes received from fraudulent vendee 70 By an infant 72 Must go to the entire contract 73 REVOCATION. Of submission to arbitration 844 SALE. (See Vendor and Vbndek.) What constitutes a sale 1 Distinction between a sale, barter or bailment 1 Distinction between a sale and a contract to sell , 12, 13 What is a bailment instead of a sale 1-5 Sales in gross 5 Requisites of a valid sale , 7 Assent of parties 7 Subject-matter of sale 9 Agreement as to price, time of payment, etc 8 Mistake of facts as affecting sales 7, 9 Mistake as to quantity, weight, etc 6 Death or destruction of the property before sale 9, 10 Contracts for sale of goods to be purchased by vendor 11 Subsequently acquired title by vendor 10 Contracts by agents 8 What property maybe the subject of sale 10, 11 Property not in existence 9, 10 Wool to grow 10 Crops not sown 10 Fish to be caught 10 , Property to be purchased by vendor. 11 Of credit 169 Construction of contracts of sale 11 Distinction between a wagering contract and a valid sale 11, 12 Intention of the parties, how determined 12 Contracts for sale of goods " to arrive " 12, 13 . Acceptances of orders for property 14 Absolute or conditional contracts 13, 14 Executed or executory contracts 12, 14 Sales for cash and sales on credit 15 Contracts of sale of return 23 Sales on trial 24 Sales by sample 92-95 When the title passes on a contract of sale 15 When the parties have stipulated as to vesting of title ,15, 25, 31, 32 When some act of the vendor is necessary to complete the delivery .... 15 Where no act of the vendor is to precede delivery 17 When no title passes before delivery 18, 22, 23, 36 996 wjy^x. BALE — Continued. ■---■- page. Whqn (Jelivery is ijpt essential to vesting title. , ,,,.,,,. 17, 19, 36 When delivery and payment are deemed Bimultaneavts acts. , , , , , . 18 When the property sold is mingled with a larger nidm- ,..,.,.....» 15, 16 Inadvertent loss of possession by vendor. .,..,.,..,., , . . . 18 Title may pass without payment. ,,,,..,.,.,,., . , ,,.,,.. 19 Title of third person making advances to vendee ..,,.,,... 19 Title of Jona^de purchaser from vendee. ..,,...,.,,,.,,. ,.,,,... 20, 35 Condition that no title shall pass until payment , . 20, 25 Presumption of waiver of condition as to payment . , , .... 30, 21, 25 Tender of the goods by vendor vests title in vendee 21 Title to property to be purchased or manufactured by vendor 33, 54 Conditional sales, and sales by vendors without title 25 How far a vendee may give title to goods delivered conditionally 25 When the purchaser takes no better title than that of his vendor. 26, 37, 34 Effect of tender of purchase-money to vendor 38 When deemed fraudulent as against creditors of vendee 29 When vendor is estopped from questioning title of purchaser ft-om his vendee 80, 35 Purchase with notice of vendor's title 30 Condition as to property in and possession of goods, distinguished. 30, 81, 33 Lease of chattel, with agreement for sale 3, 31 Mortgage or sale by vendor after conditional sale 33 Distinction between conditional delivery and conditional sale 33 Waiver of condition as to payment, a question of fact 33 Thief can transfer no title to stolen property 83, 84, 60 Possession not a warranty of ownership as against true owner 34 Title by purchase from apparent owner 85 Title by purchase from fraudulent vendee 35, 59 Title by purchase from tortious taker 36, 63 Subsequently acquired title by vendor vests in his vendee 10 Delivery of the property sold 36 Manner of delivery 86, 41 Delivery of ponderous or bulky articles 36, 37, 51, 58, 54 Delivery to a carrier, when a delivery to vendee 37, 38 Burden of proving a delivery conditional 39 Time of delivery 39-41 Place of delivery 43-44 Quantity or number of articles delivered 44 Waiver of complete delivery , 47 Condition of the thing delivered , 48 Delivery of goods mingled with others 48, 49 Delivery of goods of inferior quality 48, 49 Acceptance of the goods by the vendee 49, 50 Delivery of bill of sale or evidence of title 51, 53 Constructive delivery 31, 32, 54 Delivery of shares of stock 53 Marking logs 53, 54 Delivery of property in possession of a third person 51, 64 Delivery procured by fraud 55 INCEX. 99? SALE — Continued. f'AGH. Sale of articles to be maniifactil^ed 54 Delitely and accfeptaiiCe Of manufactm-ed articles 54 When the title passes 54, 55 Sale or delivery procured by fraud 55 Fraudulent vendee obtains no title as against vendor 55 False representations as to sol'^ency of vendee 55 Trover or replevin lies against fraudulent vendee 55, 56, 65 Right of action agfainst fraudulent vendee or his assig&ee 56, 65 Character of the act justifying vendor to rescind 56 Purchase by insolvent vendee with design not to pay 56, 57 Fraud of vendee's agent vitiates the sale 56 Evidence of fraud in purchase of goods 57, 58 Levy and sale under execution In favor of creditbr 6f a fraudulent vendee 58 Mortgage, sale or assignment by fraudulent vendee 58 Rights of hmafide purchaser from fraudulent Vendee 58, 59 Who are deemed honafiHe purchasers -. « 59 Burden of proof in action against purchaser from fraudulent Vendee. .69, 60 Rights of bdnajide mortgagee or consignee 69, 60 Kghts of indorsee of bill of lading obtained by fraud 61 Rescinding contract of sale 62 Eightto rescinedv 63, 63, 65 Effect of rescission i 63, 73 Resale by vendor, when vendee fails to perform 64 Vendor may treat as valid a sale procured by fraud ^ 65, 74 Within what time the right to rescind must be exercised 66, 67, 68 Rescission must go to the entire contract 67, 73 Party rescinding must restore money or property reeeived 67 When party rescinding is not compelled to restore money or pr&perty received » . . . 69 Return of note of fraudulent vendee . . , » i «.. v t ....>>... t.i.w ;. 70 Tender of the thing received to assignee of frauduleJit vendeB* 71 Rescission by an infant ».. 4 73 Rescission of sale with a warranty-. ..... ^ .. ^ .. k > 66, 66, 74 Warranty of the thing sold » 74-104 (See Warrastt.) Stoppage in transitu 104-110 When vendor may resume possession of goods sold 104 Origin of the right of stoppage in trandtu ^ .> ..<....>! < 104, 105 Who may exercise the right ..>. 1, ...... ^ 105 Against whom the right exists 106, 107 When the right ceases ^ .<,.<.. 1, .... 1 . . ......... 106) 107 Assignees for the benefit of creditors liable to........ >........... .«.. 107 Right may be defeated by a sale of the goods <, lt)8, 109 Seizure by creditors of insolvent vendee. ...... k >>..> t ...>.>...•«..» > 109 Demand of goods from carrier ...».>...........,..»,... 109 Effect of the statute of frauds upon sales. . i .......... ............ . 110-'138 (See Statute op Fbacds.) 998 INDEX. SALE — Continued. page. Eights and remedies of parties to contracts of sale 128 Payment or tender of purchase-money, when essential to right of posses- sion 128 Beadiness to perform, as a condition precedent to action 18, 129, 132 • Payment by note of vendee, or of third person 139, 130, 133 Eight of vendor to disregard the term of credit in case of fraud. . 130, 131 Owner of goods converted may waive tort and sue in assumpsit 131 Tender of vendor's own notes in payment for goods sold 1 31 Tender of performance before action 132, 133. 134 Eight to recover damages for non-delivery 133-135 When delivery must be complete before the right to payment arises. . . . 135 Eight of parties to a completed sale 135 Enforcement of vendor's lien after delivery and default 20 Eight of action for purchase- money on sale of stocks 20 Action against subsequent purchaser of goods sold conditionally 28 Application of the maxim caveat emptor 90 Mutual mistakes as to quantity 101 Vendee not obliged to accept more or less goods than ordered 101 Want of title in vendor as a defense to action for purchase-money.. 101, 103 Notice of suit by true owner against vendee 102 Duty of vendor to indemnify vendee 102 What may be recovered in an action for non-deliveiy of goods sold 145 When interest may be recovered on purchase-price of goods sold. 142, 143, 145 Nature of a sale of credit 169 Of credit, stocks, etc., as a cover forusury 169, 173 Of negotiable business paper for less than its face 173 Of accommodation notes for less than value 173 When declared fraudulent as against creditors 288-297 Executors, administrators, receivers, etc., may disaffirm fraudulent sales. . 297 SAMPLE. What contract arises on a sale by sample 92 Sales by average sample 95 SCHOOL DISTRICTS. Eight of trustees to contract with teacher 366, 307 Liability for teacher's services 366, 367 Penalty for failure of trustee to account, etc 463 Levy by collector after return day of warrant , ... 545 SEAL. Eelease should be under seal 821 Consideration for sealed release presumed 821 Necessary only to technical release 823 When award of arbitrators must be under seal 859 Parol discharge from sealed contract 904 SEDUCTION. Father may maintain action for 343 Cannot, if daughter bound out 343 Showing right to daughter's services, sufficient 343 If of full age actual service must be shown 343 INDEX. 999 8EDVCTI0'N— Continued. \ page. Step-fatber, -when may maintain action 343 When may not 343 SERVICES. (See "Wokk; Labor, etc.) Of wife, to whom belong 308, 309 Husband may sue wrong-doer for loss of, of wife 309 Of husband for wife 316 Father entitled to service of child 339 SET-OFF. (See Counteb-Claim.) Once allowed cannot afterward be subject of action 736 By insured, of claims due for losses 215 SHERIFF. (See Office and Officer.) Liability for injuries to property in his custody 430 Duty of sherifE in respect to care of property seized 430 Neglect to arrest judgment debtor under execution ' 431 ' Liability for an escape 438 Neglect to collect money on execution , 433 Liability for false return 444 Cannot compel others to do an illegal act 434 Return generally conclusive upon sheriff 444 Liability for executing process not directed to him 435 Liability for serving process after return day 436 Liability for taking the property of the wrong person 436 Liability for an escape. (See Escape.) 438 May recover fees from party requesting service 371 Cannot recover fees for void arrest 371 May maintain trespass for goods levied upon 543 Must show judgment as well as execution 543 Invalidity of process may be attacked by defendant.. 543 May maintain trover after levy 556 When liable in trover 575 Has an insurable interest in property seized 193 STATUTES. (See Statute OP Fbauds ; Statute op Limitations.) Contracts in violation of, are void 715 Bepeal of prohibitory statutes 716 Contracts depending upon an unconstitutional statute 718 STATUTE OF FRAUDS. Terms of the statute 339 All the terms of the agreement must be in writing 239, 340, 245 Statement of the consideration for the agreement 240-344 Agreements partly in writing and partly by parol 245 Signature to contracts by agents, auctioneers, clerk of council, etc 345 Parol contracts not to be performed within a year 245 Examples of cases within the statute 248-253 Effect of part performance 253 Full performance by one party does not bind the other 253 Kecovery for services rendered under void contract 252, 253, 254 What contracts do not come within the statute 254, 355, 356, 257 A parol agreement which may be performed within the year, valid . . 355 1000 INDEX, STATUTE OF FBAJTDS—Oontimied. page. Oral contracts for the leasing of real estate 257 iJPromises to answer for the debt, default or miscarriage of another 257 Terms of the statute * 339 Original and collateral contracts discussed . , , 258 Consideration for the promise 359-265 When the oral promise is binding on the promisor 363, 264 Where the promise is based upon a new original consideration 364 When the promise is not to pay the debt of another. ..... ... 365, 366, 267 When the promise is in effect to pay the promisor's own debt , 266, 367 When the promise is to apply the debtor's property to the debt .... 365, 367 Promise to indemnify a surety 368 Promises to pay for goods delivered to another 260, 369, 270 Promises to pay for services rendered for another 366, 269, 370, 371 Promises in the nature of guaranties 358, 366, 267, 368, 271, 273 Sale of an interest in lands, etc 273 Terms of the statute ....... 374 Parol settlement of disputed boundaries, I'alid ■ 373 Distinction between conveyances and agreements to convey 375 Authority of agent to sell and convey must be in writing 375 Authority of agent to make executory contract may be by parol 375 Proof of agent's authority 375 Purchase or leasing of church pews 276, 277 Agreements to purchase for benefit of mortgagor in foreclosure. 277 Oral agreements in respect to the sale of lands under execution. . ..... 378 Oral agreements as to cutting growing timber, etc 378 Title to crops put in by purchaser under parol contract 378 Effect of part execution of void contract. . . ^ 379, 381 Agreements for the sale of growing trees, grass, etc., must be in writing. 379 Oral contracts for the sale of growing grain, etc., are valid 279 Oral agreements to pay for services in land 279) 380 Eecovering back purchase-moneys paid under oral contracts. 280 Agreements to exchange lands must be in writing 381 Surrender of an interest in land must be in writing 381 Miscellaneous cases held to be within the statute 381, 282 Sheriff's sales within the statute 383 Agreement to sell must be subscribed by vendor 383, 283 Kequisites as to the subscription of the memorandum of sale . . S83, 383, 384 Agreements not within the statute 284-387 Leases for more than one year must be in writing 274, 287 Consideration of the lease must be expressed 287 Oral lease for one year, valid 387 Rights of parties to a lease void under the Statute 387, 288 Sales Of chattels, etc., for more than fifty dollars 110 Terms of the statute 110 Contracts for sale of chattels for more than fifty dollars must be in writ' ing.. 110 Kequisites of the memorandum of sale 110 Subscription to the note or memorandum , Ill ^ INDEX. 1001 STATUTE OF FRAUDS— Cmtinued. ' Page. Signature by broker acting for both partieBs..» ....w. >.... 113 Entry of sale in broker's books . . . . . ^ 4 . . % . ^ . . k > . ..«.. 1 .. ^ ...... . 113 Signature of clerk of telegraph company ..4 .,..»....,..... i . . 113 Subscription must be at end of memorandum. , . 113 What mode of signing vrill satisfy the statute •.,.., 113 Statute applies to exchanges of personal property .... ................ 114 Effect of receipt and acceptance of part of the property purchased ...... 114 Must be both receipt and acceptance^ ........................... 114, 115 Time of acceptance i 115, 116, 121 ESect of partial delivery and acceptance ............... ^ ... . 116, 120, 124 Delivery to and acceptance by one of several joint purchasers. 117 Acceptance and receipt by agent of purchaser .........<.. ........... 117 Receipt and acceptance by carrier. 88, 117 A trespass cannot be turned into an acceptance ..... . .. 117 What constitutes delivery and acceptance 118, 120 Evidence of receipt and acceptance 119, 130 Acceptance, how far a question of fact. 119 Part payment of purchase-price, effect of . , 121 Time of payment 131, 122 Part payment by note or check 122 Agreements to apply pric6 On debt due vendee , . . 122 Promise to pay creditor of vendor 123 Payment to agent of vendor 124 Upon what goods the payment must be made 13^ Wh«n the contract deemed entire and part delivery sUffiCieiit. .......... 134 When the contract deemed divisible 125 Agreements void in part are void in toto 125 Application of the statute to executory sales 135 Contracts for work and labor not within the statute 126 Fraudulent sales, assignments, judgnlents, etft , 288 Terms of the statute 288 Rights of 'bona fide purchaser from fraudulent vendee 296 Deeds of gift, etc., when void as against creditors. 288 Conveyances, etc., made t-o hinder and defraud creditors 288 Chattel mortgages given with intent to hinder and defraud creditors. . . 288 289 Right of insolvent debtor to make assignment 289 Fraudulent assignments 290^295 Impeaching fraudulent assignments 390, 391 ' (See AssiGNMENtB.) JudgtaeHtS confefssed for the purpose of deftaading, etc., Cfeditrtifs 295 Purchases made with intent to defraud judgment creditor , 295 Impeaching eales for fraud 296, 297 Fraudulent sale binding on vendor. S96 STATUTE OF LIMITATIONS. Policy of the law 779 Applies to special proceedings as well, as actions 'J'79 Applies to counter-claims 777, 779 126 1002 INDEX. STATUTE OF LIMITATIONS — Continued. ,page. Actions excepted from the statute 780 Parties may contract for shorter limitations 780 Applies to actions by the people 781 Does not affect the general government 781 Computation of time 781 When the statute commences to run 781 Where a demand is necessary before action 782, 784, 785 When an executory contract is repudiated 782 From ratification of contract made in infancy 783 When a cause of action accrues 783 Against pledgor 784 On a promise of indemnity 784 Upon contracts in consideration of marriage 786 In actions for work, labor and services 781, 786 In actions for torts 786-788 Effect of absence from the State 788 Effect of statutes of other States 789 Where plaintiff is under a disability 791 After death of party 792 After commencement of prior action 793 Does not apply to obligations of moneyed corporations 793 Actions against directors, stockholders, etc 793 Actions upon mutual, open and current accounts 793 Effect of concealment of cause of action 796 Revival of right of action by new promise 797 Conditional promises 808 By whom made 809 To whom made 810 Does not revive tort 811 Acknowledgment of indebtedness, effect of 797-811 When part payment revives right of action „ 811 By whom made 813 To whom made 815 How made 816 By bill or note ,818 Payment in goods or chattels 819 Payment must be voluntary 819 Oral admissions of payment ., , 819 Must be made before commencement of action 821 STOCK NOTES. (See Insubakce.) Difference between, and premium notes 316 STOPPAGE /iV TBANSITU. Nature of the right to stop goods in transit ^ 104 Effect of the exercise of the right 105 Who may exercise the right 105 Against whom the right exists 106 When the right ceases 106, 107 Assignee for benefit of creditors takes goods subject to 107 INDEX. 1003 STOPPAGE m TRANSITU— Continued. page. When defeated by hmajide sale of goods 108 Seizure by creditors of vendee does not affect the right 109 Right of stoppage, how exercised 109 SUBSCRIPTION. To the note or memorandum required by the statute of frauds. 282-384, 111-113 SUNDAY. Recovery for work done on 356, 866 Contracts in violation of Sunday laws void 704 SURETY. May interpose defense of usury 178 Statement of consideration in contract of 243 Liability of married woman as 323 TEACHERS. Right to compensation 366 Statute restricting right to employ 366 TENANTS IN COMMON. Action for money had and received between 405 When trover may be maintained between 564, 565, 566 Replevin cannot be maintained between 639 Release by 826 May insure their interests separately 193 TENDER. Definition, nature and object of 880 At common law 880 Under the Revised Statutes 881 Provisions of Code does not apply to justice's court 881 By whoin made 881 To whom made 883 When to be made 888 Where to be made 884 Manner of tendering 885 Must be evidenced by words and acts 885 Must be production and offer of tne money 886 Must be without qualifications or conditions 887 Must be of the amount of the debt 889 Waiver of actual tender 886, 890, 891 The thing tendered 893 Tender of chattels 896 Keeping tender good 898 Effect of tender 899 Manner of pleading tender 900 Payment of money into court 901 By vendor of goods, passes title to vendee 21 Of a warehouse receipt, when a delivery of the goods in store 36 Of money or goods to an assignee on rescission of sale 71 Of note of third person in payment for goods 129 Of principal to stop running of interest 155 1004 INDEX. TlMIl. PASE. Limited for commencement of actions i •, TYQ Oomputatiioii of time. 781 TITLE. Wlien title passes on a contract of sale 15 Sales by vendors without title -. S5 Thief cannot transfer title to stolen property 33 Cannot be trajisf erred witiiout authority of owner, , .......... ......... 34 Under a contract of " sale or return ".....►...»»,.....«•............... S3 When a sale or delivery of goods has been procured by fraud , , 55 By levy and sale on goods purchased by fraudulent vendee. 68 Acquired by tonajide purchaser from fraudulent vendee 59 Implied warranty of, on sale of chattels ^ . . . _ .....* 98 TORTS. (See Trespass; Trover, etc.) General principles relating to torts !..<..... 418 General nature of torts w .«.. .^ ........... ....^ .... 418 When an action for a tort will lie ....>....>...... 418 Invasion of a legal right 418 Violation of a public duty 419-420 Breach of private duty, obligation or contract. 421 Torts springing from contract , 421, 422 Privity between parties as an essential to right of action 432, 423 Fraudulent representations as to credit of a third person 424 (See Fraud.) Official neglect or misconduct 480 (See Ofpicbh.) Injuring or enticing away a servant , 436 (See Master and Servant.) Escape i 438 (See Escape.) False returns <. 443 (See Justice op the Peace; Constable; RbttjbNj etc.) ITuisance-. ,-.,>>«.>>....>............ t, 445 (See NutSANCE.) Penalties-. •...<>•..>....><......■... % ........................ 458 (See Penalties.) Trespass to property 467 (See Trespass.) Division and other fences 490 (See Fences.) Damage feasant, 606 (See Damage Feasant; Animals; TliEspAes, btoO Injuries to water and Water-courses 607 (See Water and Watbk-Coxibses ; Basements, etc.) Violation of fish and game laws 635 (See Game; Penalties, bto,) nTDix. ioo§ TOUTS — Continued. page. Trover.,,..,,,,,,,,,,,,,,, ,,,.,,,,,,..,. ,.....,., , 553 (See Tkovbb ; Conversion, bto.) Negligence 585 (See Negligence.) Injuries by domestic and other animals ....,..,,.,.,.,,,,•,,, 611 (See Animals; Nuisance, etc.) JVauds in, sales, exchanges, or otherwise ....,.,,,..,,.,.,,.,,.,.,...... 619 (See Fbaud.) Replevin 630 (See Replevin.) Actions under the Civil Damage Act , ,.,...,.,,..,.., 644 (See Civil Damage Act.) Liability of married woman for 333 Of husband for personal torts of wife 336, 331 Liability oi infant for 838, 667 When statute of limitations runs against , . 786 New promise does not remove bar of the statute of limitations 811 TREES. Presumption as to ownership 469 Ownership of line trees 469 Remedy for destruction of line trees 469 Rights in overhanging trees 469 Remedy for cutting down and removing growing trees , 469 When cut are personal property 469 When treble damages given for cutting 483, 483 TRESPASS. Against tenant in common for cutting line trees . . , , 469 For removal of trees severed from the freehold , 469 Uisturbance of possession of pew , , 470 In respect to animals /eroe naturm 471, 473 Trespass upon real estate 473 Place of bringing the action , , 473 What constitutes 473, 473 Proof of damage not essential to action 473 Every unauthorized entry a trespass , 473 Throwing rock upon land of another , 473, 475 Acts done upon adjoining premises , , , , 474 What possession by the plaintiff will support the action 475-483 Acts done under a license will not constitute a trespass „ 483-490 (See LicjiHSB,) By cattle, through division fences ,.,.,,..., 496, §01, 508, 603 Involuntary trespass by eattla. ,...,,.,..,....,...,.,.,... 605 Liability of owner of cattle for their trespasses, ..,...,,,,.,..,.,., 505, 507 For injuries to water and water-courses. .. , ,,,.,,.,.,,,....,.... 507 (See, Water amp Wateb-Couhses.) 1006 INDEX. TRESPASS — Continued. page. Penalty for trespass by hunting, etc 529 To personal property 541 When the action lies , 641-553 Who may maintain the action 641-545 Against whom the action lies 644-553 Recovery of interest as damages in 146, 147 TROVER. When either trover or trespass will lie 553 Wrongful conversion the gist of the action 554 Who may maintain the action 654 Possession sufficient title against wrong-doer 654 Bailee of chattels 554, 561 Title to, or possession of, the chattel converted .' 554 Actual or constructive possession 555 Action by executor, legatee or administrator 555 By purchaser, before title passes 565, 556, 569 By factors > 554, 556 By vendor, after rescission of contract of sale 556 By sheriff or constable after levy 556 By pledgor of stock for usurious loan 188, 668 By purchaser under mortgage, against mortgagor 569 By lessor of chattels against lessee 559 By bailor of property , 559 By maker of note 661 Against whom the action may be maintained 559 Fraudulent purchaser of goods 666 Against seller or purchaser of stolen property 656, 661 Against bailee of property for specified purposes 660 Against postmasters 660 Against person wrongfully negotiating note 561 Persons acting in good faith, or under mistake of fact 561 Trustees and personal representatives 563 Against tenants in common •. 664, 565 For what property trover lies 662-570 When owner may recover value of property in improved form 666-568 When owner may recover value of goods commingled with his own. . 568-570 The conversion 670 What constitutes conversion , 570, 571 Conversion by wrongful taking 671 Conversion by wrongful assumption of property 672 Conversion by demand and refusal 576 When demand is necessary before action 676-585 When demand is not necessary before action 576-585 When trover cannot be maintained 585 When statute of limitations commences running against 787 Recovery of interest as damages 146 UMPIRES. (See Abbitbation.) How appointed 845 INDEX. 100? UNDERTAKING ON APPEAL. page. Liability of married women on 330 UNLIQUIDATED DEMANDS. Eecovery of interest upon 139, 140, 141, 143, 143 USE AND OCCUPATION. Provisions of the statute relating to the recovery of rent 407 Assumpsit for rent at common law 407 Relation of landlord and tenant must exist 408 Will not lie against person entering under contract to purchase 408 When trespass the proper remedy 409 Against tenant holding over • 409 Against tenant under lease void by statute of frauds 409 Action for, where lease is under seal 409, 410 Will not lie Where tenant never went into possession 409 Lies where tenant has abandoned the premises 409 Where defendants are in possession under lease to. outside parties .... 409, 410 Where plaintiff has repudiated the relation of landlord and tenant 410 Where plaintiff has elected to treat defendant as a trespasser. 410 Lease is admissible to determine amount of recovery 410 Amount of the recovery 411 USURY. (See Iktbkbst.) Defined 156 Laws of New York relating to usury 156-158 Taking of illegal interest prohibited 156 Time in which to recover back illegal interest 157, 164 Examination of plaintiff as to usury 157 Corporations cannot interpose defense of usury 158 What constitutes usury 158 Must be a loan of money 158 Essentials of a loan 158 Burden of showing usurious character of the transaction 159, 160 Unlawful and corrupt intent and agreement essential 160, 161 Knowledge of the facts constituting usury 160 Ignorance of the law does not excuse the taking of usury 161, 167 Intent to violate the statute 161 New security taken in place of usurious note 160 Illegal interest taken by mistake or accident , 160 Transactions based on an exchange of notes 170 Purchases of notes at a discount greater than lawful interest 178 Contracts not usurious 159 Loans which may be discharged by punctual payment of lawful interest. 159 Incidental advantages arising out of the loan , 159, 160, 166 Purchase of outstanding demands . 159 New security innocently taken in place of usurious note. 160, 174, 184, 185 Dealings in ignorance of facts constituting usury 160 Loan of money after date of interest bearing security 161 Including in a note a gift from borrower to the lender 161 Taking unlawful interest through mistake or accident 161, 167 Profits received by partner for moneys advanced firm 163 1008 INDEX U8UEY — Continued. page. Contracts for compound jjiterest. .. „., „ , 16^, 177 Quarterly payments of interest ,...,.,,,..,,, ,.,. 168 Discounts of commercial paper , , , l^J, 163, 163, 167 Taking interest in advance ,.,..,,,., 163 Compensation for accepting and paying bills, .,.,..,,,,..., 164 Charges for trouble and services •,...,,. 164,, 165, 169, 170 Interest on advances made by commission merchants .,,,,.., 166 Bonus paid to agent of lender , 166 Sales of stock in connection with loans of money .,..,....,,.,., ^ ... . 169 . Sales of credit ,...,,,...., 169, 170 Loans of chattels ,.,..... , 171 Purchases of securities , , , , , 173, 182 Valid securities are not affected by subsequent usurious transactions. . . . , , 174 IJsurer cannot sue on usurious security and recover on original debt. , , . . . 175 Borrovf^er cannot defeat, a valid debt by alleging invalidity of subsequent contract, ..,.,...,.,,,,.,.. , ,,, ^ ,,,.,..,..,.,., , 175 Effect of usurious extension of time of payment of a valid contract, ., , , , 175 IJsurer not permitted to take adva,ntage of his usury ...,,...,..,..,, 175., 176 Collateral securities given to secure payment of usurious debt,, voiid. , , , , , 177 Eeformation of usurious agreement , 177 Effect of repayment to borrower of the unlawful interest exacted 177 Who may interpose the defense of usury , ,,..... 177 Borrower may defend upon the ground of usury , ,.,....,. 177 Who are " borrowers " within the meaning of the statute ... . 177, 178, 179 Stranger to the usurious contract cannot defend on ground of 178 Corporations , , 180, 181 Accommodation indorsers .' , 178 Judgment creditors , , 181 Gruarantor of a note 178, 183 Surety , ' 178^ 181 Assignees and receivers , 178 180 Purchasers of lands incumbered with usurious mortgage 178, 179 Privies of the borrower may defend against usurious contract 180 Assignment of right of action to recover back usurious interest 180 Corporations precluded from interposing the defense of usury. 180 Bona fide purchasers of negotiable paper tainted with usury 172, 182 When a party is estopped by his own act or representation from alleging usury 183, 183, 184 Contracts not to interpose usury as a defense are void 184 Law of place, as affecting the question of usury. ,.,... ^ 185-187 Proof of the unlawful agreement and loan 187 Evasion of the usury laws, how far a question of fact 188 Recovery of property pledged to secure usurious loan 188 VALUE. What is meant by market value of goods . , . , , 146 VENDOR AND VENDEE. (See Sales.) Remedy of vendor for gpods. bargained and sold.,..,,,, , , 345 Resale by vendor of goods not delivered .,.,.,.. ^ .,.,..,,,. 346 INDEX. 1009 VENDOR AND VENDEE— Continued. page. Action by vendor for purchase-price of goods 345 Remedy of vendee for goods purchased but not delivered 347, 401 For failure to convey real estate 401 Replevin for goods sold conditionally 631 WAIVER. Of breach of insurance policy 198 Of condition in insurance policy 199 WARRANTY. On sales or exchange of property 75, 849 Distinction between a warranty and a fraudulent representation 75 Need not be in any particular form of words 76, 86 Assertions of fact which amount to warranties 76 Expressions of vendor's opinion, or description of thing sold 77, 81 Intention of the vendor to warrant, not essential. 77 Whether a warranty was given, a question of fact 77 Representations not contained in written contract of sale 78 May accompany an executory contract of sale 78 May relate to quality, condition or character of thing sold 78 May be oral or written 79 Upon a sale of a horse 79, 80, 81, 84, 85 What constitutes unsoundness in a horse 80 (Description of thing sold by its commercial name 83 Must generally be made at the time of sale 83 Made after sale, must be supported by new consideration 83 Representations made during negotiations for a sale 83 Does not extend to open and visible defects 83, 84, 85 When vendor will be estopped from alleging that defects were visible 84 Against defects not capable of discovery by mere examination 85 Power of agent to warrant 85 Proof of breach of warranty '. 85, 86 Damages for breach of warranty 86, 144 Upon a sale of garden seeds 86, 87 Recovery for gains prevented and losses sustained 86, 87 Upon sale of material to be manufactured 87, 88 Upon sale of property for a particular use 87, 88, 91 Upon a sale by the manufacturer 89, 91, 96 Cannot be inferred from a sound price 89 Written warranty excludes a parol warranty 89 AUj express warranty excludes any implied warranty 89 Custom or usage to show implied warranty 89, 90 Meaning of the maxim, ' ' caveat eimptor " 90 Application of the maxim 90-92 No implied warranty of value on sale of stocks 91 When there is no implied warranty of quality, or that goods are merchant- able 91, 100 When there is no implied warranty of condition 91 When there is no implied warranty of fitness for a specified purpose 91 When there is an implied warranty of fitness 91 127 1010 INDEX. WARRANTY— Continued. page. When there is an implied warranty that goods shall be merchantable. 93, 96 97 In case of sales by sample 92 In case of sale by average sample 95 On sales of provisions 97, 98 On sale of promissory note or negotiable bond. . . . ; 97, 100 On sale of a judgment 97 On sale of a chose in action 100 When there is an implied warranty of title 98, 100 Effect of an implied warranty of title 101, 103 Parol evidence of warranty, when admissible 103, 104 Action by principal on warranty made to his agent 8 Statements by applicant for insurance, when a warranty 194, 195 Infancy as a defense for breach of 669 Recoupment of damages for breach of 757 On sale or exchange of property 348, 349 Proofs by plaintifE under general denial 349 Allegations of complaint 849, 351 Express and implied warranty, how stated 349 Proof that part of representations were false and actionable sufficient. . . . 349 Action for false warranty 349 Need not prove fraud if alleged 850 No recovery for breach of warranty when fraud is basis of complaint .... 850 Retaining property with knowledge of faults 350 Damages, measure of 350 Price paid may be shown as an element 850 Must be some proof as to 351 What recoverable by assignee of claim. . , , 851 Allegations in pleadings to be true 351 WATER AND WATER-COURSES. Pollution of 449, 450 Property in running streams 507 What is a water-course 507 Water included in the term " land " 508 Ownership of bed of stream 508 Boundaries upon streams 508 509 Rights in water 509 Diverting water in streams, etc 509 Use of water for irrigation 510, 511 512 Water-power, of what it consists 513 Diversions of subterranean waters, etc 513 Right of owner to fill marsh 513 Right of owner to drain his land 514 Liability for interference with under-ground currents 514 515 Diverting water from neighbor's well 514-516 Obstruction of water 517 Right to dam streams 517^ 518 Corrupting and polluting water 518, 519 INDEX. 1011 WATER AND W ATER-GOUHSES— Ocmtinued. page. Flowing lands above , 530 Flooding lands below 521 Backing water upon mill above 533 Interference with surface water 533 Collecting and concentrating surface water to injury of another 524, 525 WOEK, LABOR AND SERVICES. Must be some contract, expressed or implied 351 Request and compliance with it sufficient 351 Express request need not always be shown 352 Request and pro^mise sometimes implied 353 Permitting service without objection 352 Service by compulsion 353 Service induced by fraud 353 Keeper of county poor-house liable on promise to pay paupers for services. 352 Involuntary depositary of chattel entitled to compensation 352 Service must be of some value 358 Need not if employer chooses unprofitable business 353 In absence of agreement law will give reasonable wages 353 Workmen to possess skill 353 Must use it, and with due care 353 Wages, when payable 353 Services need not be rendered in person 354 All classes of laborers may recover pay 354 When complaint in action for, should be special 354 No action lies for gratuitous services 354 No promise to pay for, as between parent and child 354 When rendered by an intruder, no ground for a recovery 355 Recovery for services rendered for another without his knowledge 355 Services rendered for a person in last illness, not gratuitous 355 Recovery by a concubine for such services .■ 355 Right of wife to recover for, after decree declaring marriage void 355 No recovery for illegal services 356 Recovery for labor performed on Sunday 356 Contribution of services to an illegal purpose 356, 357 Want of a license as a bar to a recovery for services 357 Action for services by particular persons. . .'. 357 Attorneys 357 (See Attorneys ; Negligence.) Factors or brokers 362-365 (See Factobs.) Architects 365 Printers 365 Clerks... 366 Servants 366 (See Master and Servant.) Teachers 366-367 (See Teacher.) 1012 INDEX. WORK, LABOR AND SERVICES— Continued. page. Authors and editors 367 Physicians or surgeons 368, 369 (See Physicians asd Stjkgbons.) Clergymen 369 Carriers 870, 371 (See Common Cakkibk.) Manufacturers and mechanics 371 Officers 371, 372 (See Shbbifp ; Constable, etc.) Referee 372 (See Rbfbrbb.) Stenographer 372 Witness 372 Of infant, when parent may recover for 340, 341 When infant entitled to earnings 341 Parents' liability for, to child 340, 341 When statute of limitations runs against 786 When contracts for, are void under statute of frauds 250, 251 Recovery for work done imder void contract 251-254 Agreements to pay for, in lands, must be in writing 279, 280 WORK AND MATERIALS FURNISHED. Contracts for, not contracts of sale 372, 373 Contract to furnish, must be substantially performed , 373 Actions on written contracts for work and materials furnished 373 When a certificate of performance is indispensable 373, 374 Certificate, how far conclusive 374 When production of certificate excused 374^ 375 Plaintiff may declare generally for value of work 375 Excess of materials furnished will not defeat action for contract-price 375 When right of action suspended by terms of contract for 375