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Cornell University 
 Library 
 
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 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924018805865 
 
THE DOCTRINES 
 
 OV THB 
 
 LAW OF CONTEACTS, 
 
 nr 
 
 THEIK PRINCIPAL OUTLINES, 
 
 STATED, ILLUSTRATED, AND CONDENSED. 
 
 BT 
 
 ,#*ir^,; 
 
 JOEL PRENTISS BISHOP. '% ^^^"^-^"^(p 
 
 v '■■.-« 
 
 1870 -./ 
 
 ■*^<!?b ■ .^ 
 
 .W 
 
 ■s .■■' 
 
 ST. LOUIS: 
 
 F. H. THOMAS AND COMPANY. 
 
 1878. 
 
Entered according to Act of Congress, in the year 1878, by 
 
 JOEL PRENTISS BISHOP, 
 In the Office of the Librarian of Congress at Washington. 
 
 St. Louis: Press of G I. Jones and Compant/. 
 
PREFACE. 
 
 This book is the outgrowth of a plan to collect, in 
 simple and compact language, and arrange in an 
 order of my own, the essential doctrines of the law of 
 contracts ; referring mainly to the larger books, which 
 the reader was expected to consult as he had occasion, 
 for illustrations and the adjudged cases. But on pro- 
 ceeding to do what I had thus undertaken, I found the 
 plan impossible with me, though doubtless it would 
 not be with an author of greater ability. When I 
 felt, in those books, for the ribs in the body of the law 
 of contracts, and for the spinal column, I could not 
 distinguish rib or backbone from muscle. 
 
 Should I abandon altogether what I meant? That 
 I would not do. So I have travelled through the 
 adjudged cases, collected the leading doctrines, and 
 arranged from them what I deemed to be a skeleton 
 of the law of the subject, put with it so much of flesh 
 in the form of illustrations as seemed imperative, and 
 draped the whole with as thin a gauze of needless 
 words as I deemed the public taste would bear. My 
 object has been to present the body of the law of con- 
 tracts, without its bloat, in form to be examined and 
 reexamined, by old and young, the learned and the 
 unlearned, — the student, the practising lawyer, the 
 
IV PREFACE. 
 
 judge, tlie man of business, — as any skeleton is, by 
 all classes of enquirers. 
 
 But why refer to so many cases ? Because, first, 
 the foot-notes are in nobody's way, — they do not 
 injure the book for those who do not wish to use 
 them. Secondly, those who have occasion to look 
 beyond the general doctrines, which the text supplies, 
 into their minuter forms, or to see further illustra- 
 tions of them, have here the directions provided for , 
 ready use. Thirdly, practitioners who, in arguing 
 before a court, desire to rely on a proposition in the 
 book, have thus the means in hand for making the 
 proposition good. 
 
 The references are mostly, but not exclusively, to 
 our ow]\ American cases. In determining what ones 
 and how many to make, I have not been guided by a 
 general rule, but by the diflPering requirements of the 
 several paragraphs. At one place, the authorities 
 would be conflicting ; hence many cases should be 
 referred to, and they should be chiefly American. At 
 another place, the sub-doctrines, under the general 
 one in the text, would be numerous ; therefore cases 
 representing each minor form should be cited, — a 
 proposition which I had not always the audacity to 
 carry out in full, so multiplied were the citations 
 which occasionally would have been necessary. At 
 another place, the doctrine of the text would be a con- 
 densation from many authorities, no one of which sus- 
 tained it alone, but all in combination did ; therefore 
 these must all be cited. Such are some of the vary- 
 ing reasons ; but, where no special reason impelled, 
 the citations have beeil sparse. 
 
PREFACE. V 
 
 In conclusion, this small book is committed to all 
 who are acquiring a knowledge of the law of contracts, 
 or who have occasion to review what they already 
 know, or to be referred to adjudications on the lead- 
 ing doctrines, not as containing the whole of what is 
 known on the subject, but as condensing, into small 
 space, in plain terms, and in a new order, what is 
 most needful for all. 
 
 J. P. B. 
 
 Caubbicqe, Mass., Janusuy, 1878. 
 
COISTTEI^TS. 
 
 <^"*:k Bbotion 
 
 I. The Elements of a Contkact 1-13 
 
 II. Contracts under Seal 14-38 
 
 III. Contracts of Record 39-46 
 
 rv. Oral Contracts 47-56 
 
 V. Simple Contracts in Writing ^7-66 
 
 VI. Contracts implied as of Fact 67-71 
 
 Vn. Contracts implied as of Law 72-94 
 
 5 72, 73. General Doctrine aijd Introduction. 
 
 74-88. Illustrations of the Doctrine. 
 
 89-93. Limits of the Doctrine. 
 
 94. Doctrine of the Chapter restated. 
 
 Vin. Contracts implied from Express ones . . . 95-106 
 
 IX. Further of the Implied Contracts of the last 
 
 two Chapters 107-125 
 
 2 107,108. Introduction. 
 
 109-120. Created by Law where none in Fact. 
 
 121-124. Grafted by Interpretation on Express. 
 
 125. Doctrine of the Chapter restated. 
 
 X. Estoppel as a Species of Contract created 
 
 BT Law 126-137 
 
 XI. Contracts distinguished as Executory and 
 
 Executed 1G8-150 
 
 XII. Von) AND Voidable in Contracts 151-163 
 
 2 151-153. Introduction. 
 
 154-157. Void. 
 
 - 158-162. Voidable. 
 
 163. Doctrine of the Chapter restated. 
 
VUl CONTENTS. 
 
 Chapter Section 
 
 XIII. Formalities attending the Creation of the 
 
 Contract 164-173 
 
 XIV. The Mutual Assent 174-184 
 
 XV. Fraud, Mistake, and Duress 185-249 
 
 J 185-189. General Principles and Introduction. 
 
 190-227. Fraud. 
 
 228-238. Mistake. 
 
 239-248. Duress. 
 
 249. Doctrine of the Chapter restated. 
 
 XVI. The Parties required 250-259 
 
 XVII. Infants 260-280 
 
 XVIII. Married Women 281-283 
 
 XIX. Insane Persons 284-299 
 
 XX. Drunken Persons 300-306 
 
 XXI. Corporations 307-317 
 
 XXII. Contracts made through. Agents .... 318-391 
 
 I 318-326. General Views and Introduction. 
 
 327-343. Creation and Termination of Agency. 
 
 344-351. Express and Implied Powers of Agent 
 
 352-367. Execution of Contract by the Agent. 
 
 368-374. Pilling Blanks. 
 
 375-385. Agent departing from his Authority. 
 
 386-390. Frauds by and to Agents. 
 
 391. Doctrine of the Chapter restated. 
 
 XXIII. Contracts by Persons in Partnership . . 392-402 
 
 XXrV. The Consideration 403-454 
 
 § 403-408. Introductory Explanations. 
 
 409-427. General View of the Consideration. 
 
 428-431. Where the Contract is wholly executoi^. 
 
 432-437. Wholly executed. 
 
 438, 439. Executed in Part. 
 
 440-445. Consideration executed. 
 
 446-453. Waiver as to Consideration. 
 
 454. Doctrine of the Chapter restated. 
 
CONTENTS. IX 
 
 Chaptbk Sbctioh 
 
 XXV. Contracts illegal, immoral, and contkart 
 TO THE Policy op ihe Law and to Public 
 Policy 455-497 
 
 J 455; Introduction. 
 456-472. General Doctrine. 
 473-496. Some Particular Contracts. 
 
 497. Doctrine of the Chapter restated. 
 
 XXVI. Contracts voidable under the Statute ov 
 
 Frauds unless evidenced by Writing . 498-546 
 
 2 498-501. Statute of Frauds and Introduction. 
 502-513. Rules Common to this Class. 
 514-516. Promise by Executors and Adminis- 
 trators. 
 517-524. Contract of Guaranty. 
 525-529. On Consideration of Marriage. 
 530-535. Por the sale of Lands. 
 536-545. Not to be performed within a Tear. 
 546. Doctrine of the Chapter restated. 
 
 XXVn. Sales of Goods void by the Statute op 
 
 Frauds 547-558 
 
 XXVIII. Other Contracts as requiring Special 
 
 Forms or not 559-567 
 
 XXIX. Contracts as affected by Particular and 
 
 General Custom and Usage .... 568-573 
 
 XXX. The Interpretation of the Contract . 574-609 
 
 § 574. Introduction. 
 575-602. Rules to determine the Meaning. 
 603-608. Rules to determine the Effect. 
 609. Doctrine of the Chapter restated. 
 
 XXXI. Impossibilities connected with the Con- 
 tract 610-631 
 
 XXXII. The Unauthorized Altering op Written 
 
 Contracts 632-642 
 
 vyyTTT. The Altering op Contracts by Mutual 
 
 Consent 643-654 
 
CONTENTS. 
 
 Ohaptbr 
 XXXIV. Waiter 
 
 Section 
 655-664 
 
 XXXV. Rescission and Ebleasb of the Executokt 
 
 Contract 665-686 
 
 J 665, 666. Introduction. 
 
 667-672. By Mutual Consent 
 
 673-681. By one Party for the Other's Fault 
 
 682-685. By one Party wrongfully. 
 
 686. Doctrine of the Chapter restated. 
 
 XXXVI. The Breach and Performance of Con- 
 tracts 687-703 
 
 XXXVII. Third Persons 704-716 
 
 XXXVIII. The Conflict of Laws as to Contracts 717-744 
 
 J 717,718. Introduction. 
 
 719-736. The Law. 
 
 737-743. The Procedure. 
 
 744. Doctrine of the Chapter restated. 
 
 XXXIX. Collateral and Supplemental Questions 745-767 
 
 I 745-746. General Views and Introduction. 
 
 747-752. The Element of Time. 
 
 753-755. Damages liquidated for the Violation. 
 
 756-759. Penalties in Contr.acts. 
 
 760-766. Delivery of the Written Instrument 
 
 767. Doctrine of the Chapter restated. 
 
 Index of Subjects . . 
 IiTOEX TO the Cases Cited 
 
 PAOB 
 
 287 
 333 
 
ELEMENTS OF CONTRACT. § 2 
 
 THE LAW OF 0OE"TEA0TS. 
 
 CHAPTER I. 
 
 THE ELEMENTS OF A CONTRACT. 
 
 § 1 . Contract Defined. — A contract is a promise from 
 one to another, either made in fact or created by the law, to 
 do or refrain from some lawful thing ; being also under the 
 seal of the promisor, or being reduced to a judicial record, 
 or being accompanied by a valid consideration ; and not 
 being, from want of writing, or other lack of form, violative 
 of any special rule of law governing the particular trans- 
 action. In actual affairs, the promise is often more com- 
 plex ; being made by or to more persons than one, or being 
 mutual between two or more. But still, in essence and 
 general idea, the contract i^emains the same.^ More in 
 detail, — 
 
 § 2. Kinds of Contract. — A contract may be — 
 
 Specialty. — A specialty; that is, an instrument under 
 seal.^ Or, — 
 
 Record. — It may be by matter of record.^ Or, — 
 
 Parol. — It may be a parol contract. 
 
 * I preferred to make the definition reasonably exact, rather than attempt 
 impossible brevity. Our books have no standard definition of contract, 
 approved by all. It is often defined, in form too short to be helpful, as "an 
 agreement in which a party undertakes to do, or not to do, a particular thing.'' 
 Met. Con. 1 et seq. And see the other books on Contracts. My definition 
 fails to notice the exception to the rule that generally a sealed instrument 
 does not require a consideration. Post, g 23. 
 
 ' Post, i 14 et seq. 
 
 » Post, j 39 et seq. 
 
 1 
 
§ 5 LAW OF CONTRACTS. 
 
 § 3. How Parol Contracts divided. — Parol contracts 
 are divided into — 
 
 "Written. — Written contracts not under seal,^ and — 
 
 Oral. — Contracts by mere spoken words. ^ But — 
 
 § 4. Explanation as to Parol. — The term parol prop- 
 erly means by word of mouth ; '^ and it is employed by legal 
 writers to distinguish what is spoken from what is written, 
 whether sealed or not. Thus, it is said that parol evidence 
 is inadmissible to vary a contemporaneous writing.* For- 
 merly there was no distinction, in legal effect, between 
 a written contract not under seal and an oral one ; and 
 the term parol, as applied to either, was not misleading. 
 Now there are many statutes requiring what might then 
 have been done by word of mouth to be in writing ; there- 
 fore, at this day, if a legal writer would avoid being 
 misunderstood, he should genei-ally designate what used 
 to be termed a parol contract by the word ' ' oral ' ' or 
 "written," as the fact in the particular instance maybe. 
 Again, — 
 
 § 5. Implied. — Sometimes a contract is implied where 
 there is no direct proof of any, or, in fact, none has been 
 made. The term " implied " is vague, and contracts under 
 that name differ greatly. Of implied, — 
 
 Created by Law. — There are contracts, commonly termed 
 implied, which, to speak more accurately, are created by 
 the law to establish justice between the parties. They do 
 not require mutual consent, but may even bind a party 
 against his will.^ Or, — 
 
 Implied as of Fact. — In other circumstances, the pre- 
 sumption, in the absence of rebutting proof, is that the 
 
 ' Post, ? 57 et seq. 
 
 ' Post, I 47 et seq. See Met. Con. 3, 4. 
 
 » Toml. Law Diet. "Parol." 
 
 « 1 Greenl. Ev. J 275. 
 
 ' Post, ? 72 et seq. 
 
 2 
 
ELEMENTS OF CONTRACT. § 8 
 
 parties really consented ; and it is a good defence for one 
 to show that, in fact, he did not consent. This contract, 
 also, is termed implied.^ Or, — 
 
 Implied from Express. — A contract may be implied by 
 the law out of the terms of an express one, viewed in con- 
 nection with the circumstances and the subject.* 
 
 § 6 . Executory and Executed. — These various contracts 
 are contemplated as executory or executed, or as in part 
 executory and in part executed.^ Many consequences grow 
 out of this distinction. 
 
 § 7. Parties. — As one cannot sue himself,* or, conse- 
 quently, enter into any obligation enforcible by law with 
 himself, there must be two or more parties to every contract." 
 And, unless it is a contract which the law has created, — 
 
 Of Sound Mind. — A party, to be bound, must be of suf- 
 ficiently sound mind to give the needful mental assent.' 
 Also, — 
 
 Of Adequate Age. — He must be of such age as the law 
 requires.' And — 
 
 No Legal Disability. — He must not be under any such 
 legal disability as avoids the contract. A familiar but not 
 the only illustration of this, is a married woman, where the 
 common-law rules prevail.* 
 
 § 8. Minds in Accord. — Except where the contract is 
 created or implied by law, the minds of the parties must 
 come into complete accord, the one consenting to exactly 
 the same thing to which the other does.' 
 
 ' Post, § 67 et seq. 
 
 2 Post, I 95 et seq. 
 
 ' Post, 2,138 et seq. 
 
 ' Moffat V. Van Millingen, 2 B. & P. 124, note. 
 
 " Post, 2 250 et seq. 
 
 « Post, I 284 et seq., 197 et seq. 
 
 ' Post, I 200 et seq. 
 
 " Post, I 281 et seq. 
 
 9 Post, i 174 et seq. 
 
§ 13 LAW OF CONTEACTS. 
 
 § 9. Consideration. — Except in contracts by specialty 
 or by record, there must be, in connection with the promise, 
 an adequate consideration for it, or it will not be enforced 
 by the courts. Even, it is believed, the law will not create 
 or imply a contract without a consideration.^ Also, — 
 
 § 10. Subject. — The contract must be for something 
 which the law permits to be contracted for, — not contrary 
 to the law or its policy.^ Finally, — 
 
 § 11. Liaw's Forms. — In some circumstances, the law 
 has made a particular form necessary ; as, by specialty,' or 
 by writing not under seal,* or by written words prescribed 
 by a statute. A mere oral undertaking, or a written one 
 not conforming to law, will then, of course, be inadequate. 
 
 § 12. Course of the Discussion. — These elements of 
 contract, and some others not necessary here to be men- 
 tioned, will occupy us through a series of chapters. We 
 shall then proceed with such further unfoldings as will ren- 
 der this outline of the law of contracts in some reasonable 
 degree complete. 
 
 § 13. The Doctrine of this Chapter restated. 
 
 To sum all up, a contract is a promissory obligation from 
 one person or more to another or to others, or a mutual 
 promissory obligation, in such form, and founded on such 
 reasons, as the justice or policy of the law has>prescribed to 
 render it binding. In general, this obligation is not forced 
 upon persons, except as they consent ; for, by this rule, the 
 justice and policy of the law are in most instances best 
 promoted. And none can consent without legal and actual 
 capacity. But there are cases in which, if a party resists the 
 
 • Post, I 403 et seq. 
 ' Post, i 455 et seq. 
 ■■ Post, \ 560. 
 
 ' Post, 5 498 et seq., \ 547 et seq. 
 4 
 
ELEMENTS OF CONTEA.CT. § 13 
 
 justice of the law, or is destitute of capacity to consent, and 
 the general or individual weal requires that there should be a 
 contract, the law will imply it as of fact, or create it by 
 indisputable presumption. 
 
 5 
 
51 § LAW OF CONTRACTS. 
 
 CHAPTER II. 
 
 CONTBACTS UNDER SEAL. 
 
 § 14. Meaning of Terms. — A contract under seal is 
 called a specialty; that is, a special contract, in distinction 
 from a simple one,^ which is another term for a parol con- 
 tract.^ The word deed means substantially the same as 
 specialty;^ but, being commonly employed to designate a 
 conveyance of land, it is practically less distinct when 
 applied to any other sort of sealed instrument. A bond is 
 a particular kind of specialty ; the word alone, or " obliga- 
 tion," or " writing obligatory," generally implying, ex vi 
 termini, a seal,* yet possibly not always.* The term cov- 
 enant, also, ordinarily denotes a sealed instrument ;* but 
 not necessarily in every connection, or so conclusively as the 
 other words.' An "indenture" is a particular sort of 
 sealed contract.^ 
 
 § 15. How Specialty defined. — A contract under seal, 
 or specialty, is an executory or executed undertaking in 
 
 • 2 Bl. Com. 464, 465, and Chitty's notes. 
 2 Ante, 2 2, 3. 
 
 ' 2 Bl. Com. ut sup. 
 
 * Toml. Law Diet. "Bond;" Cantey v. Duren, Harper, 434 ; Taylor v. Gla- 
 ser, 2 S. & R. 502 ; Denton v. Adams, 6 Vt. 40 ; Deming v. Bullitt, 1 Blaclif. 241 ; 
 Skinner v. McCarty, 2 Port. 19 ; Harman v. Harman, Bald. 129 ; Harden v. 
 Webster, 29 Ga. 427. ^ 
 
 5 Stone V. Bradbury, 14 Maine, 185. 
 
 « Toml. Law Diet. " Covenant ;" MeVoy v. "Wheeler, 6 Port. 201 ; Davis v. 
 Judd, 6 Wis. 85 ; Bobbins ii. Ayres, 10 Misao. 538. 
 
 ' 1 Saund. Wms. ed. 291, note ; Van Stanwood b. Sandford, 12 Johns. 197; 
 Hays V. Lasater, 8 P ike, 565. See Graves v. Smedes, 7 Dana, 344. 
 
 8 Spencer, J., in Van Stanwood v. Sandford, supra ; Cabell v. Vaughan, 1 
 Saund. Wms. ed. 291, note 1. 
 6 
 
CONTRACTS UNDER SEAL. § 18 
 
 writing, made solemn by the seal of the party. It must be, 
 not on wood,^ but on paper or parchment. 
 
 § 16. What the Seal. — The seal is an impression on 
 any impressible substance. In early times it was always 
 wax ; but a wafer is as good, and so is any other tenacious 
 material on which an impression is made.^ In apart of our 
 States, not in others, even a scroll formed with the pen, or 
 the word " seal," written or printed, if employed as a seal, 
 is adequate.^ But the existence of a seal, on an instrument, 
 if not meant to be employed as such, does not make it a 
 specialty ; * nor can there be a specialty without some sort 
 of seal .® One seal will answer for any number of signatures, 
 if each signer adopts it as his own." 
 
 § 17. Signing. — One who executes a specialty commonly 
 signs it the same as he does an instrument not sealed. But 
 the signing was early held not to be necessary, where the 
 party puts upon the parchment his seal ; for the seal creates 
 the deed.' , There is probably no modern authority contrary 
 to this early doctrine, which seems still to prevail.^ 
 
 § 18. Delivery. — An instrument, to be a deed, must be 
 delivered ; not merely as an escrow, but absolutely.^ 
 
 1 Pollock Con. 125 ; Smith Con. 2d Eng. ed. 5. 
 
 2 Tasker v. Bartlett, 5 Cush. 359 ; Warren v. Lynch, 5 Johns. 239 ; Beardaley 
 V. Knight, 4 Vt. 471. 
 
 ^ Underwood v. DoUins, 47 Misao. 259; Groner v. Smith, 49 Misso. 818, 
 322 ; Cromwell v. Tate, 7 Leigh, 301 ; 4 Kent Coin. 457. 
 
 • Clement v. Gunhouse, 5 Esp. 83; Add. Con. 7th Eng. ed. 20; Black- 
 well V. Hamilton, 47 Ala. 470. 
 
 5 The State v. Thomson, 49 Misso. 188 ; Vance v. Punk, 2 Scam. 268 ; Chilton 
 V. People, 66 111. 501. 
 
 » Tasker v. Bartlett, supra ; Ball v. Dunsterville, 4 T. R. 813. 
 
 ■ Cromwell i;.Grunsden,2 Salk. 462; Smith Con. 2d Eng. ed. 5. 
 
 8 Cooch 17. Goodman, 2 Q. B. 580; Jeflfery v. Underwood, 1 Pike, 108; 
 Taunton v. Pepler, 6 Madd. 166 ; Ex parte Hodgkinson, 19 Ves. 291, 296 ; 
 Wright V. Wakefield, 17 Ves. 454 a, 459. 
 
 9 4 Kent Com. 454; Smith Con. 2d Eng. ed. 6 ; 1 Chit. Con. 11th Am. 
 ed. 4; Cannon v. Cannon, 11 C. E. Green, 316; Hawkes v. Pike, 105 Mass. 
 560 ; Watkins v. Nash, Law Kep. 20 Eq. 261. 
 
 7 
 
§ 23 LAW OF CONTRACTS. 
 
 § 19. Date and Place. — On the completion of its execu- 
 tion by delivery it takes effect.^ No date is essential ; and 
 it is good with an impossible date, or one diifering from 
 that of the delivery, which will be its date in law ; nor need 
 it mention the place where it is executed.^ 
 
 § 20. Form of Words. — As in other instruments, the 
 form of words is immaterial if the meaning is distinct.* 
 Thus,— 
 
 § 21. Name of Obligor. — The obligor's name need not 
 be in the body of the instrument ; or, if it is there, and it 
 differs from the name signed it will be good.* But, — 
 
 § 22. Void if Uncertain — Blank. — If the name of the 
 obligee or grantee is left in blank, ^ or if, from any other 
 defect, the meaning of the parties cannot be ascertained, 
 the instrument will be null.* 
 
 § 23. The Oo)isideration: — 
 
 Generally unnecessary. — As a general rule, a sealed 
 instrument is binding, though no consideration is mentioned 
 in it, and though there is none in fact. The seal is said to 
 import a consideration, and to estop the party from denying 
 it.' But, — 
 
 1 Browne v. Burton, 5 Dowl. Sa L. 289, 2 Bail Court, 220. 
 
 ' Anonymous, 7 Mod. 38 ; "Willion ». Berkley, 1 Plow. 223, 281 ; Dodson v. 
 Kayes, Telv. 193 ; Cromwell v. Grimsdale, Comb. 477 ; s. c. nom. Cromwell v 
 Grunsden, 2 Salk. 462, 1 Ld. Raym, 335 ; Pierce v. Richardson, 37 N. H. 106 ; 
 Fournier v. Cyr, 64 Maine, 32 ; Armote v. Bream, Holt, 212 ; Goddard's Case, 
 2 Co. 4 6, 3 Leon. 100 ; Add. Con. 7th Eng. ed. 18. 
 
 3 Taylor v. Preston, 29 Smith, Pa. 436 ; Bedow'a Case, 1 Leon. 25, 3 lb. 
 119; Cromwell u. Grumsdale, 12 Mod. 193; Dobson v. Keys, Cro. Jac. 361! 
 s. o. nom. Dodson v. Kayes, Yelv. 193 ; Saunders v. Hanes, 44 N. Y. 353. 
 
 * 'Williams d. Greer, 4 Hiiy w. 235, 239 ; Smith v. Crooker, 5 Mass. 538 ; 
 Pournier «. Cyr, 64 Maine, 32, 35 ; Ex parte Pulton, 7 Cow. 484. 
 , 6 Preston B. Hull, 23 Grat. 600; Wunderlin v. Cadogan, 50 Cal. 613; Bar- 
 den V. Southerland, 70 N. C. 528; Viser v. Kice, 33 Texas, 139; Chase v. 
 Palmer, 29 111. 306. See Bishop v. Morgan, 11 Mod. 275. 
 
 ^ Worthington v. Hylyer, 4 Mass. 196, 205; Swain v. Ransom, 18 Johns. 
 107; post, ?581. 
 
 ' Harris v. Harris, 23 Grat. 737; Van Valkenburgh v. Smith, 60 Maine, 97; 
 8 
 
CONTRACTS UNDER SEAL. § 26 
 
 § 24. lixceptions. — To this proposition there are excep- 
 tions; as, — 
 
 Illegal — Against Public Morals — Fraud, etc. — If the 
 
 sealed undertaking is to do a thing unlawful, or against 
 public policy or morals, or if the unexpressed consideration 
 for it is in fact thus tainted, or if it was obtained by fraud or 
 duress, the seal will not serve as a screen for the wrong ; but 
 the real nature of the transaction, though it does not appear 
 on the face of the instrument, may be shown, and a party 
 may avail himself of this matter, the same as though there 
 were no seal.' If the law were not so, the seal " would," 
 in the words of Lord Ellenborough, " be a cover for every 
 species of wickedness and illegality." ^ Thus, — 
 
 § 25. Compounding. — A bond, the real consideration 
 of which is, though not stated, that the obligee will not 
 appear as prosecutor and witness against another in a 
 criminal cause, will be held void on the fact appearing.* 
 Or,— 
 
 § 26. Unlawful Arrest. — If one gives a bond to procure 
 his discharge from an unlawful arrest, the consideration and 
 duress may be shown, when it will be adjudged void.* 
 
 Sharington v. Strotton, 1 Plow. 298, 309; Page v. Trufant, 2 Mass. 159, 162; 
 Fallowes v. Taylor, 7 T. R. 475 ; Cooch v. Goodman, 2 Q. B. 580, Denman, 
 C. J., observing, " that a covenant, being under seal, does not by law require 
 any consideration to support it; and, though an illegal consideration maybe 
 shown, and will vitiate it, and if a consideration be stated on the face of a 
 deed a different one may be proved in order to raise a legal defence, yet a 
 mere failure of consideration which once existed may have no more effect than 
 a total want of consideration in the first instance," p. 599 ; Douglass v. How- 
 land, 24 Wend. 35; Burkholder v. Plank, 19 Smith, Pa. 225. 
 
 1 Cases in last note; also Smith Con. 2d Eng. ed. 12-16; Logan v. Plum- 
 mer, 70 K. C. 388; Mitchell «. Reynolds, 10 Mod. 130, 134; Hodson ». Ingram, 
 Aleyn, 60; Hacket v. Tilly, 11 Mod. 93; Beawfage's Case, 10 Co. 99; Car- 
 penter V. Beer, Comb. 246 ; Burkholder v. Plank, 19 Smith, Pa. 225 ; Eeniger 
 V. Fogossa, 1 Plow. 1, 19; Hazard M.Irwin, 18 Pick. 95, 106; Obert v. Ham- 
 mel, 3 Harrison, 73. 
 
 2 Paxton V. Popham, 9 Bast, 408, 421. See Hartshorn v. Day, 19 How. 
 U. S. 211, 222. 
 
 3 Collins V. Blantern, 2 Wils. 341 ; Goudy v. Gebhart, 1 Ohio State, 262. 
 
 * Bowker v. Lowell, 49 Maine, 429 ; Greathouse v. Dunlap, 3 McLean, 308. 
 
 9 
 
§ 27 LAW OF CONTRACTS. 
 
 § 27. i:xceptional Reasons. — There are sealed instru- 
 ments resting on exceptional reasons, therefore requiring a 
 consideration, the same as if not under seal. Among these 
 the principal and perhaps the only ones are — 
 
 Conveyances of Land. — It was an early rule that, under 
 the statute of uses, " an use," observes Lord Coke, " can- 
 not be raised by any covenant or proviso, or by bargain and 
 sale, ui3on a general consideration;" "for it doth not 
 appear to the court that the bargainor hath quid pro quo, and 
 the court ought to judge whether the consideration be 
 sufficient or not, and that cannot be when it is alleged 
 in such generality."^ A somewhat different statement 
 of the doctrine is, that, by the rules of the equity tri- 
 bunals, which had the sole jurisdiction of uses before the 
 statute, a use could not.be enforced without a consideration, 
 and the statute only made legal what before existed in 
 equity.^ It became, therefore, and still remains a rule of 
 law that, in conveyances which derive their force from the 
 statute of uses, the seal does not supersede the necessity of 
 a consideration otherwise appearing.^ And these compre- 
 hend most of the conveyances commonly employed in our 
 States.* Of course, there may be, by deed as well as parol, 
 executed gifts of lands, the ^ame as of other things, which 
 will be good between the parties without any consideration 
 in fact ; * but the views here presented would seem to indicate, 
 that, for the deed to be adequate in form, it must mention 
 
 ' Mildmay's Case, 1 Co. 175 a, 176 a; and see the notes, with the authorities 
 collected, by Thomas. 
 
 ' Hudson V. Alexander, 3 Johns. 484, 488, 491. 
 
 ' Smith Con. 2d Eng. ed. 12; Springs v. Hanks, 5 Ire. 30; Bolton v. Car- 
 lisle, 2 H. Bl. 259; Sargent v. Reed, 2 Stra. 1228, 1229; 1 Chit. PI. 8th Am. 
 ed. 366 ; 2 lb. 576 et seq. ; Thomas's note to 1 Co. 176 a; Allen «. Florence, 
 16 Johns. 47 ; 3 Washb. Real Prop. 4th ed. 368. 
 
 ' Hudson V. Alexander, supra; Wallis v. Wallis, 4 Mass. 135; Parker v. 
 Nichols, 7 Pick. Ill ; Gale v. Coburn, 18 V\A. 397, 400; Horton v. Sledge, 29 
 Ala. 478 ; Piatt v. Brown, 30 Conn. 336. 
 
 5 4 Kent Com. 462; I'outy v. Fouty, 34 Ind. 433; Shaw v. Bran, 1 Stark. 
 319. 
 
 10 
 
CONTRACTS UNDER SEAL. § 28 
 
 a consideration, which may be a mere fictitious one. And 
 such is the doctrine of some courts/ but others hold that 
 no consideration need be even expressed.^ On the former 
 view, perhaps a "good consideration," in distinction from 
 a " valuable " one,^ may suffice.* On the conveyance of a 
 chattel, a seal imports a consideration, and none need be 
 either expressed or shown in evidence.^ 
 
 § 28. In Restraint of Trade A contract in restraint 
 
 of trade is, in general, void as against public policy.* It is 
 equally so, therefore, whether under seal or by parol.' But 
 where the restraint contemplated is only partial, the agree- 
 ment is in many circumstances good ; provided — so are the 
 authorities from the earliest time downward — there is for it 
 a valuable consideration.* Therefore, as the common law 
 holds that there ^must be in fact a consideration, it follows 
 — and so, also, are the authorities — that it must appear, 
 equally whether the instrument is under seal or not.** If 
 this reasoning seems technical, still such is the established 
 law. Finally, — 
 
 ' Howell V. Delancey, 4 Cow. 427; Saunders u. Cadwell, 1 Cow. 122; Grout 
 V. Townsend, 2 Hill, N.-Y. 554, 557; Coxe v. Sartwell, 9 Harris, Pa. 480. 
 
 = Rogers v. Hillhouse, 3 Conn. 398 ; Randall v. Ghent, 19 Ind. 271 ; Croft v. 
 Bunster, 9 "V^is. 503. See Peacock v. Monk, 1 Ves. sen. 127. 
 
 ' Post, J 285, note. It is not my purpose to enquire, with minute accuracy, 
 how the law is on this point in our various States. In Smith Con. 2d Eng. 
 ed. 12, in brackets, it is said : " There are some deeds deriving their effect from 
 the statute of uses — that is, a bargain and sale, and a covenant to stand seized 
 to uses — both of which are void without a consideration ; the first requiring a 
 pecuniary one, and the latter a consideration of blood or marriage." Referring 
 to Shep. Touch. 510; and 2 Bl. Com. 338. And see Kirkpatrick v. Taylor, 43 
 ni. 207; Ford v. EUingwood, 3 Met. Ky. 359 ; Pennington v. Gittings, 2 Gill 
 & J. 208. 
 
 * The practitioner will, of course, examine and follow the decisions in his 
 own State, on this question and all others where opinions are conflicting. 
 
 5 Bunn V. Winthrqp, 1 Johns. Ch. 329. 
 
 6 Post, § 478. 
 
 ' Alger V. Thacher, 19 Pick. 51 ; Saratoga County Bank v. King, 44 N. Y. 
 87, 91 ; Allsopp v. Wheatcroft, Law Rep. 15 Eq. 59. 
 
 8 Gunmakers v. Fell, Willes, 384 ; Smith Con. 2d Eng. ed. 133. 
 
 9 1 Chit. PI. 8th Am. ed. 366 ; Met. Con. 2, 233 ; Tomlinson v. Dighton, 1 P. 
 Wms. 149, 196, 197. 
 
 11 
 
§ 34 LAW OF CONTRACTS. 
 
 § 29. liocal Usage or Statute. — "By local usjige in some 
 of the States of the Union, and by statute in others, the 
 want or failure of consideration is a valid defence to a suit 
 on a sealed contract."^ And in other States a seal is by 
 statute rendered always unnecessary ; so that an instrument 
 without seal is equally effectual with a sealed one.^ 
 
 § 30. Jligh Ifafure of Specialty: — 
 
 Superior to other Contracts. — An instrument under 
 seal is deemed by the law of a higher nature than one not 
 sealed . Therefore , — 
 
 § 31. Merger. — If the parties to a simple contract enter 
 into one on the same matter under seal, the former is 
 merged in and extinguished by the latter.' Again, — 
 
 § 32. Varied or Abrogated. — A specialty cannot be 
 varied or abrogated by words not under seal.* Thus, — 
 
 § 33. Parol Liicense. — A mere verbal license to one to 
 do a thing contrary to his covenant will not avail the doer 
 in defence of an action on the covenant.^ But, — 
 
 § 34. Accord and Satisfaction. — As a specialty under- 
 taking can be performed without seal, so also without seal 
 there can be accord and satisfaction of it.* And, — 
 
 1 Met. Con. 161, 162. And see Pierce v. Wright, 33 Texas, 631 ; Great- 
 house V. Dunlap, 3 McLean, 303; Kinnebrew «. Kinnebrew, 35 Ala. 628; 
 Stovall V. Barnett, 4 Litt. 207 ; 1 Pars. Con. 6th ed. 429. 
 
 2 McKinney v. Miller, 19 Mich. 142, 151. 
 
 3 Chit. Con. 11th Am. ed. 9 ; Smith Con. 2d Eng. ed. 19 ; Robbing v. Ayres, 
 10 Misso. 538 ; Banorgee v. Hovey, 5 Mass. 11. See Witbeck v. "Waine, 16 
 N. Y. 532 ; Charles v. Scott, 1 S. & R. 294. 
 
 * Rutland's Case, 5 Co. 25 b ; Parker v. Ramsbottom, 5 D. & R. 138, 3 B. & 
 C. 257 ; Miller v. Hemphill, 4 Eng. 488 ; Harper v. Hampton, 1 Har. & J. 622 ; 
 Delacroix v. Bulkley, 13 "Wend. 71 ; Sinard v. Patterson, 3 Blackf. 353 ; Thom- 
 son V. Brown, 1 Moore, 358, 7 Taunt. 656 ; Rogers v. Payne, 2 Wils. 376 ; 
 Neal V. Sheaffield, Cro. Jac. 254 ; Vaughn v. Ferris, 2 Watts & S. 46 ; Perry 
 V. Clymore, 3 McCord, 245. 
 
 s West V. Blakeway, 2 Man. & G. 729; Chapman v. McGrew, 20 HI. 101. 
 See Parley v. Thompson, 15 Mass. 18. 
 
 « Alden v. Blague, Cro. Jac. 99 ; Gilson v. Stewart, 7 Watts, 100. And see 
 Moody V. Leavitt, 2 N. H. 171 ; Lawall v. Rader, 2 Grant, Pa. 426 ; Reed v. 
 MoGrew, 5 Ohio, 376, 381. 
 12 
 
CONTKACTS UNDER SEAL. § 38 
 
 § 35. Engraft Parol on It. — An agreement not under 
 seal may be engrafted on a prior sealed one ; but, by this, 
 the whole is reduced in law to a simple contract,^ Or, — 
 
 § 36. Substitute Parol. — A parol contract may be sub- 
 stituted for a sealed one.^ Also, — 
 
 § 37. Rescind by Executed Parol. — If a parol agree- 
 ment rescinding a specialty is fully executed, it will be 
 effectual.^ 
 
 § 38. The Doctrine of this Chapter restated. 
 
 An instrument under seal has received, from the ancient 
 law, a dignity superior to any other. In conclusiveness, it 
 occupies a middle ground between a simple contract and a 
 judicial record. But the courts have in modern times 
 abated something — it is difficult to say just how much — of 
 their former respect for it ; and, in a few of our States, it 
 has ceased to be more, or much more, than a simple con- -r 
 tract. There is a little uncertainty in the doctrines at some 
 points, or in some of the States ; and practitioners should 
 acquaint themselves specially with the decisions of the 
 courts of their own State relating to this subject. 
 
 1 Hydeville Co. v. Eagle Railroad and Slate Co., 44 Vt. 395 ; French v. New, 
 28 N. T. lil ; Archer v. Burden, 33 Ala. 230 ; Vaughn v. Ferris, 2 Watts & 
 S. 46 ; Aikin v. Bloodgood, 12 Ala. 221 ; Whiting v. Heslep, 4 Cal. 327. 
 
 » McGrann v. North Lebanon Railroad, 5 Casey, Pa. 82 ; Low v. Forbes, 18 
 m. 568 ; Byrd v. Betrand, 2 Eng. 321 ; Baird v. Blaigrove, 1 Wash. Va. 170. 
 
 » Phelps V. Seely, 22 Grat. 573; Green v. Wells, 2 Cal. 584; Townsend ». 
 Empire State Dressing Co., 6 Duer, 208 ; Dearborn v. Cross, 7 Cow. 48 ; Dick- 
 erson v. Ripley, 6 Ind. 128. And see Brown v. Brine, 1 Ex. D. 5; John- 
 ston V. Salisbury, 61 111. 316; Lawrence v. Dole, 11 Vt. 549. See further, as 
 to distinctions in the last few sections, post, J 651-653. 
 
 13 
 
§ 43 LAW OF CONTRACTS. 
 
 CHAPTER III. 
 
 CONTRACTS OF RECORD. 
 
 § 39. How defined. — A contract of record is one made 
 and entered of record before a judicial tribunal. But, — 
 
 § 40. Not with Us. — With, perhaps, exceptions in some 
 of our States, we have no contracts of record other than 
 recognizances, and it is believed to be the same now in 
 England. 1 
 
 § 41. Statutes Merchant and Staple. — Formerly, in 
 England, there were very familiar bonds of record, known 
 as statutes-merchant and statutes-staple. They were a 
 species of recognizance.^ In rare instances they may have 
 been resorted to in some of our States in early times ,^ but 
 they are now unknown with us. 
 
 § 42. Kecognizance. — The recognizance, with us, is 
 most frequently, but not exclusively, employed in criminal 
 causes, to bind the pai'ties and witnesses, with the bail and 
 other sureties, for the appearance of the former in court, to 
 prosecute, defend, pay adjudged costs, testify, and the like. 
 
 § 43. How Recognizance defined. — As defined in the 
 English books, it is " an obligation of record, which a man 
 enters into before some court of record, or magistrate duly 
 authorized, with condition to do some particular act ;* as, to 
 appear at the assizes, to keep the peace," etc.* 
 
 » Smith Con. 2d Bng. ed. 3. 
 
 " 2 Bl. Com. 160; 4 lb. 426, 428; 2 Tidd Pr. 1132. 
 » As, see Kilty Eep. Stats. 143. 
 » 2 Tidd Pr. 1131. 
 
 " Toml. Law Diet. " Recognizance." 
 14 
 
CONTRACTS OF RECORD. § 46 
 
 § 44. Incidents of Recognizance. — The incidents of 
 a recognizance are not in eveiy minute particular the same 
 in all our States ; being, in some degree, regulated by 
 differing statutes. But, in general, since it is a record, it 
 can be discharged only by a record or by a sealed instru- 
 ment.^ The court, on proper grounds, can order it dis- 
 charged or compounded.^ The Massachusetts court laid 
 down the doctrine that, after it is forfeited, the tribunal has 
 no power to relieve the conusor against its penalty, as on a 
 hearing in equity upon a bond ; ^ but a statute afterward 
 provided for a remission of the penalty in proper cases.* It 
 may bind an infant.* 
 
 § 45. Enforcement. — Like any other record, it proves 
 itself. It may be enforced by ^^ scire facias, — a writ which 
 lies on a record only, and consequently cannot be made use of 
 for the purpose of enforcing any other description of con- 
 tract." ® Other methods of suing upon it need not here be 
 mentioned. 
 
 § 46. The Doctrine of this Chapter restated. 
 
 When partips enter into a contract of record before a 
 court, the undertaking becomes itself a sort of judgment 
 in advance against him who may afterward prove to be in 
 default. It does not admit of the same freedom of enquiry 
 ■ into the merits of a case as do other forms of contract. 
 Hence, in general, the law does not suffer parties to resort 
 
 1 Sewall V. Sparrow, 16 Mass. 24, 26 ; The State v. Moody, 69 N. C. 529 ; 
 Barker v. St. Quintin, 12 M. & W. 441. 
 
 ' In re Fellow, 13 Price, 299; s. c. nom. Ex parte Fellow, MeClel. Ill; 2 
 Chit. Gen. Fr. 396, 897 ; Rex v. Hankins, MoClel. & Y, 27. 
 
 ' Johnson ti. Eandall, 7 Mass. 340 ; Merrill v. Prince, 7 Mass. 39G. 
 
 * Commonwealth v. Dana, 14 Mass. 65. 
 
 ' Ex parte "Williams, McClel, 493, 13 Price, 673. But see Patchin v. Cro- 
 mach, 13 Vt. 330. 
 
 « Smith Con. 2d Eng ed. 4. 
 
 15 
 
§ 46 LAW OF CONTRACTS. 
 
 to it. The ordinary recognizance, by which some simple 
 thing, like an appearance, is agreed to be done in the 
 presence of the court itself, is not open to this objection, 
 and is, therefore, permitted. 
 16 
 
ORAL CONTRACTS. § 49 
 
 CHAPTEE IV. 
 
 ORAL CONTRACTS. 
 
 § 47. How formerly. — Speech, in the order of time, 
 preceded writing. Even pleadings in court were once, in 
 England, oral ; and we have, at the present day, in our own 
 country, remnants of oral pleas.^ In like manner, it would 
 appear that there was a period in our law when contracts of 
 nearly or quite every sort could be made orally, with the 
 same effect as by writing. Thus, for a long time after the 
 Norman Conquest, a deed was not an essential part of a 
 feoffment, but the feoffor could explain his intent orally, 
 while making livery of seisin upon the land.^ Since then, — 
 
 § 48. Changes effected. — The convenience of business 
 has introduced contracts which, in their nature, could not 
 be oral, — as, for example, oral words for a bill of exchange 
 cannot be transmitted through the mails, or endorsed on 
 its back, — and the needful perpetuation of some other 
 contracts can be secured only by writing. Moreover, legis- 
 lative policy has, on one ground and another, rendered 
 writing essential to some contracts. Thus exceptions to 
 the general doctrine have been created. Hence, — 
 
 § 49. All Contracts, except. ^- Every contract, on what- 
 ever subject, may be in oral words, which will have the 
 same effect as if written, except where some positive rule 
 of the common or statutory law has provided otherwise.* 
 Thus,— 
 
 1 1 Bishop Crim. Proced. J 340, 788-790, 848. 
 = Deane Conv. 300 ; 4 Kent Com. 450. 
 
 3 Mallory v. Gillett, 21 N. Y. 412 ; Wyman v. Goodrich, 26 "Wis. 21 ; Barron 
 V. Benedict, 44 Vt. 518 ; Besshears v. Eowe, 46 Misso. 501 ; Coleman v. Eyre, 45 
 
 2 17 
 
-1 
 
 § 54 LAW OF CONTEACTS. 
 
 § 50. Insurance. — A contract of insurance, which in 
 practice is usually by written policy, is equally good if 
 verbally made ;^ except where, as in some of our States, a 
 statute provides to the contrary. And, — 
 
 § 51. Assignment. — Thoiigh an assignment of a debt is 
 commonly by writing, yet a verbal assignment is good.^ 
 So,— 
 
 § 52. Ajrbitration. — A verbal submission of a contro- 
 versy to arbitration is valid ; except that neither it nor the 
 award can extend to what the parties could not themselves 
 do verbally.' Even — 
 
 § 53. Acceptance. — A verbal acceptance of a bill of 
 exchange,* or of a non-negotiable order ,^ is, if there is no 
 statute to the contrary, good. 
 
 § 54. Equal In Grade with Written. — While a verbal 
 contract is not of the same high nature as a specialty,* it is, 
 when valid, on exactly the same footing as a written one 
 unsealed.' It differs m-erely in the methods of proof. 
 Both are termed — 
 
 N. T. 38; Green v. Brookins, 23 Mich. 48; White v. Maynard, 111 Mass. 250; 
 Parsons o. Loucks, 48 N. Y. 17; Selma v. Mullen, 46 Ala. 411 ; Bardwell v. 
 Koberts, 66 Barb. 433. 
 
 ' Sanborn v. Fireman's Ins. Co., 16 Gray, 448 ; Walker v. Metropolitan Ins. 
 Co., 56 Maine, 371 ; First Baptist Church v. Brooklyn Fire Ins. Co., 19.N. Y. 
 805; Heningu. United States Ins. Co., 2 Dillon, 26; Strohn ». Hartford Fire 
 Ins. Co., 33 Wis. 648; Gerrish v. German Ins. Co., 55 N. H. 355 : Westchester 
 Fire Ins. Co. v. Earle, 33 Mich. 143. 
 
 2 Simpson v. Bibber, 59 Maine, 196, 199; Ponton v. Griffin, 72 N. C. 362; 
 Currier v. Howard, 14 Gray, 511, 513 ; Spafford u. Page, 15 Vt. 490 ; Garnsey 
 V. Gardner, 49 Maine, 167 ; Porter v. Ballard, 26 Maine, 448 ; Crane v. Gough, 
 4 Md. 316 ; Cleveland v. Martin, 2 Head, 128; Eollison v. Hope, 18 Texas, 446; 
 post, J 563. 
 
 s French v. New, 28 N. Y. 147; Thomasson v. Eisk, 11 Bush, 619; Copeland 
 -!). Wading Kiver Eeservoir, 105 Mass. 397; Peabody u. Eice, 113 Mass. 31; 
 Phelps V. Dolan, 75 111. 90; Stockwell v. Bramble, 8 Ind. 428. ^ 
 
 * Pierce v. Kittredge, 115 Mass. 374; Scudder v. Union National Bank, 91 U. 
 8. 406 ; Barnet v. Smith, 10 Fost. N. H. 256 ; Stockwell v. Bramble, 3 Ind. 428. 
 
 6 Bird V. McElvaine, 10 Ind. 40. 
 
 « Ante, 2 30. 
 
 ' Ante, I 2 ; Chit Con. 11th Am. ed. 5. 
 18 
 
ORAL CONTRACTS. § 56 
 
 § 55. Simple Contracts. — All contracts, not under seal, 
 — that is, all parol contracts, whether written or unwrit- 
 ten, — are known as simple contracts.^ 
 
 § 56. Ttie Doctrine of this Chapter restated. 
 
 Since oral words preceded written ones, contracts on 
 every subject, created by mere word of mouth, were origin- 
 ally good. And such is still the general rule. The excep- 
 tions are contracts which, in their nature, can be made only 
 in writing ; and those which, by a usage which has grown 
 to be common law, or by some statute, are specially required 
 to be written. Prima facie, we look upon an oral contract 
 as good ; but, in the particular sort of case, writing may 
 be found to be necessary. 
 
 1 Add. Con. 7th Eng. ed. 2. 
 
 19 
 
§ 59 LAW OF CONTBACTS. 
 
 CHAPTER V. 
 
 SIMPLE CONTRACTS IN WRITING. 
 
 § 57. How defined. — A written contract is one which, 
 in all its terms, is in writing.^ A simple contract in writing 
 differs from a specialty in not being under seal. 
 
 § 58. Partly in Writing. — A contract partly in writing 
 and partly oral is an oral contract.^ But this can be only 
 in the case of an imperfect writing,^ or where there is first 
 a written contract, and afterward it is changed orally ; * for 
 oral evidence of what occurred when or before a written 
 contract was made is not admissible to vary its terms,* all 
 such matter being deemed to be merged in the writing.* 
 But,— 
 
 §59. Separate Writings. — If there are separate writings , 
 on one piece of paper, or several attached pieces, or on 
 separate papers referring to one another, whether made 
 simultaneously or on different occasions and days, all may 
 be regarded as one contract, when this view of them is just, 
 
 ' What is a writing, see post, § 94. 
 
 » Ante, 2 31 ; Vicary v. Moore, 2 Watts, 451 ; Wright v. Weeks, 25 N. T. 
 153 ; Brooks v. Wheelock, 11 Pick. 439 ; Dwight v. Pomeroy, 17 Mass. 303, 
 328 ; Lang v. Henry, 54 N. H. 57 ; Dana v. Hancock, 30 Vt. 616 ; Briggs o. Ver- 
 mont Central Railroad, 31 Vt. 211. 
 
 3 Post, I 62. 
 
 * Post, 2 647. 
 
 ' Quartermous w. Kennedy, 29 Ark. 544 ; Woodall v. Greater, 51 Ind. 539. 
 
 • Kelly V. Roberts, 40 N. Y. 432 ; Morse v. Low, 44 Vt. 561 ; Giraud v. Rich- 
 mond, 2 C. B. 835. See Meredith v. Salmon, 21 Grat. 762 ; Hilb v. Peyton, 
 21 Grat. 386 ; Shepard v. Haas, 14 Kan. 443. 
 
 20 
 
WRITTEN CONTEACT8. § 63 
 
 and accords, witli the intent of the parties ; and, whether so 
 or not, all should be interpreted together.^ Yet, — 
 
 § 60. One Contract or more. — As foundation for suing, 
 what thus appears to be one contract may in law constitute 
 more contracts than one ; this will depend upon the words, 
 the subject, and the other facts and the justice of the case.'* 
 Within the same principle, — 
 
 §61. Simultaneous — (Oral — Written). — Two or more 
 contracts may be simultaneously entered into between the 
 same parties, both in writing or both oral, or one in writing 
 and the other oral.^ Again, — 
 
 § 62. Writings as Memoranda, etc. — Parties entering 
 into an oral contract may employ written memoranda in aid 
 of it ; in which case, and in others wherein there are writ- 
 ings evidently not meant to be complete, the contract is 
 oral, and as such is not prevented from being good by 
 what is written.* 
 
 § 63. Keceipts. — In general, receipts of payment, 
 whether embodied in written instruments or not, are 
 deemed to be of the imperfect sort, which maybe explained 
 or contradicted orally.' And — 
 
 1 Post, ? 577; Bobbett v. Liverpool, etc., Ins. Co., 66 N. O. 70; Patch ». 
 Phcenix, etc., Ins. Co., 44 Vt. 481 ; Wildman v. Taylor, 4 Ben. 42 ; Heath v. 
 Williams, Ind. 495; Taylor v. Cornelius, 10 Smith, Pa. 187; Pillow v. 
 Brown, 26 Ark. 240, 249; Bradley v. Marshall, 54 111. 173, 174; Smith v. Tur- 
 pin, 20 Ohio State, 478 ; Crop v. Norton, 2 Atk. 74, 9 Mod. 233 ; 1 Chit. Con. 
 11th Am. ed. 146, 147. 
 
 ' More V. Bonnet, 40 Cal. 251 ; Davidson v. Peticolas, 34 Texas, 27. 
 
 8 Phillips V. Preston, 5 How. U. S. 278 ; Garrow v. Carpenter, 1 Port. 359 ; 
 Berryman v. Hewit, 6 J. J. Mar. 462 ; Page v. Sheffield, 2 Curt. C. C. 377 ; 
 Price V. Sturgis, 44 Cal. 591. 
 
 * Mobile Marine, etc., Co. v. McMillan, 31 Ala. 711 ; The Alida, 1 Abb. Adm. 
 173 ; Pacific Iron Works v. Newhall, 34 Conn. 67 ; Buggies v. Swanwick, 6 
 Minn. 526; Pinney-i). Thompson, 3 Iowa, 74. 
 
 5 EollinsB. Dyer, 16 Maine, 475; Marston v. Wilcox, 1 Scam. 270; Walters ». 
 Odom, 53 aa. 286 ; Smith v. Holland, 61 N. T. 635; Kyan v. Ward, 48 N. Y. 
 204 ; Hannan v. Oxley, 23 Wis. 519 ; Bryant v. Hunter, 6 Bush, 75. See 
 Grumley v. Webb, 48 Misso. 562. 
 
 21 
 
§ 65 LAW OF CONTRACTS. 
 
 § 64. Date. — The same applies to the date of the writ- 
 ing. Prima facie it is the true date, but the real fact may 
 • be shown. ^ 
 
 § 65. Consideration. — In like manner, the considera- 
 tion, which is not the promise of the parties with its special 
 terras and limitations, but merely the thing of value whereby 
 they were moved to make the promise,^ ought always to be 
 open to enquiry by oral evidence. The better doctrine, 
 certainly in principle, holds it to be so.^ But the adjudi- 
 cations are confused and variable, perhaps all admitting 
 that, in general,* where a deed require's a consideration, it 
 may be shown by parol, though not expressed ; others hold- 
 ing, yet still others denying, that the same rule applies to 
 simple contracts in writing; and, lastly, another class 
 maintaining, what the better doctrine rejects, that, though 
 this is so where the writing is silent as to a consideration, 
 if it expresses one, no evidence can be received to explain 
 or contradict the written words. Now, according to what 
 is deemed the just view, the reason of the rule which forbids 
 oral evidence to control a written instrument does not extend 
 to the consideration, therefore the rule itself should not.* 
 
 1 Smith V. Porter, 10 Gray, 66 ; ante, J 14 ; Perrin «. Broadwell, 3 Dana, 
 596. See Seldonridge v. Connable, 32 Ind. 875; Richards ». Betzer, 53 III. 466. 
 
 2 Post, I 406. 
 
 ' As, for example, in Holmes's Appeal, 29 Smith, Pa. 279 ; Wilkinson v. 
 Scott, 17 Mass. 249, 257 ; Kinzie v. Penrose, 2 Scam. 515 ; Eockhill v. Spraggs, 
 9 Ind. 80; Jones v. Jones, 12 Ind. 889; Lawton v. Buckingham, 15 Iowa, 
 22 ; Emmons v. Littlefield, 18 Maine, 238 ; Kumler v. Ferguson, 7 Minn. 
 442 ; Morris Canal, etc., Co. v. Kyerson, 3 Dutcher, 457 ; "Wooden v. Shot- 
 well, 3 Zab. 465 ; Jack v. Dougherty, 3 "Watts, 151 ; Curry v. Lyles, 2 Hill. 
 S. C. 404 ; Holbrook v. Holbrook, 30 "Vt. 432 ; Hannah u. 'Wadsworth, 1 
 Eoot, 458 ; Strawbridge v. Cartledge, 7 Watts & S. 394. But see Murphy 
 V. Mobile Branch Bank, 16 Ala. 90 ; Morse v. Shattuck, 4 N. H. 229 ; Schem- 
 erhorn v. Vanderheyden, 1 Johns. 139; Emery v. Chase, 5 Greenl. 232. Where 
 the expression is, "for divers good considerations," the real consideration may 
 be shown. Johnson v. Boyles, 26 Ala. 576. 
 
 * See ante, ? 23. 
 
 5 Ante, I 28 ; Ely v. Wolcott, 4 Allen, 506, 507 ; Peacock v. Monk, 1 Ves- 
 22 
 
WRITTEN CONTRACTS. § 66 
 
 § 66. The Doctrine of this Chapter restated. 
 
 All contracts which are good when orallj made, may, if 
 the parties choose, be in writing. But, unless they are 
 sealed, they rank in law only as parol contracts ; in other 
 words, as simple contracts. Some contracts are, by special 
 provisions of law, required to be in writing. To these the 
 parties may affix their seals if they choose ; and, though 
 they are thus made specialties, they are still written, within 
 the laws which require writing.^ A writing may constitute 
 a part of an oral contract ; as, where it is a mere accompany- 
 ing memorandum, or where what was once a written con- 
 tract has been varied orally, or the like. Whether a trans- 
 action or form of words has created one contract or more 
 than one will depend upon the intent of the parties, the 
 subject, their words, and the construction of law thereon. 
 
 sen. 127 ; Llanelly Railway, etc., v. London, etc.. Railway, Law Rep. 7 H. L. 
 550, 556, 8 Ch. Ap. 942 ; Goward v. Waters, 98 Mass. 596, 599 ; Kirkham v. 
 Boston, 67 HI. 509 ; Coggeshall v. Coggeshall, 1 Strob. 43 ; Arms v. Ashley, 4 
 Pick. 71 ; Attixti. Pelan, 5 Iowa, 386 ; Tingley v. Cutler, 7 Conn. 291 ; Mou- 
 ton V. Noble, 1 La. An. 192 ; Cumminga v. Dennett, 26 Maine, 397 ; Patohin v. 
 Swift, 21 Vt. 292 ; Thompson v. Blanchard, 3 Oomst. 335 ; Long v. Davis, 
 18 Ala. 801 ; Pettibone v. Roberts, 2 Root, 258 ; Smith v. Brooks, 18 Ga. 440 ; 
 Herrick v. Bean, 20 Maine, 51 ; Newton v. Jackson, 23 Ala. 335 ; Marsh v. 
 Lisle, 34 Missis. 173 ; Warren v. Walker, 23 Maine, 453 ; Haynes v. Rogillio, 20 
 La. An. 238; Collier v. Mahan, 21 Ind. 110; Aurora v. Cobb, 21 Ind. 492; 
 Swope V. Forney, 17 Ind. 385 ; Burrill v. Saunders, 36 Maine, 409. As to the 
 consideration in cases within the statute of frauds, see post, ^ 512. 
 1 McKensie v, f'arrell, 4 Bosw. 192. 
 
 23 
 
§ 70 LAW OF CONTEACTS, 
 
 CHAPTEE VI. 
 
 CONTRACTS IMPLIED AS OF FACT. 
 
 § 67. Not differ from Express. — A contract which, as 
 a question of fact, not of law, is implied, does not differ 
 from an express one except in form of proof. But it is so 
 often spoKen of in our books as an implied contract as to 
 render this separate mention of it desirable. Moreover, — 
 
 § 68. Presumptions of Fact and Law^ mingle. — In 
 numerous cases, as actually presented to the tribunal, where 
 the parties are capable, and are not affirmatively shown to 
 ^have been averse to contracting, the two questions blend, — 
 Did they enter into a contract in form ? In the absence of 
 any fonnal contract, shall one be presumed by the law? 
 Therefore, in such a case, the jury passes upon the whole 
 issue, under proper instructions from the court as to the 
 law involved in the latter question.^ But — 
 
 § 69. Actual Contract presumed. — There -are many 
 cases, not here to be particularized, — since we are discussing 
 the law, not the evidence of contract, — in which an express 
 agreement, in distinction from an implied one, will be pre- 
 sumed by the jury as of fact.^ An illustration of this occurs 
 where the question is whether or not there has been a — 
 
 § 70. Marriage. — The marriage status is created only 
 where the parties expressly agree to assume it. No court 
 
 1 Chamberlin v. Donahue, 44 Vt. 57 ; "Whaley v. Peak, 49 Misso. 80 ; Cauble 
 V. Eyman, 26 Ind. 207 ; Davenport v. Mason, 15 Mass. 85 ; Belden v. Meeker, 47 
 N. Y. 307, 311 ; Cock v. Oakley, 50 Missis. 628 ; Boyle v. Parker, 46 Vt. 343. 
 
 2 Boothby v. Scales, 27 Wis. 626. 
 
 24 
 
IMPLIED AS OF FACT. § 71 
 
 ever imposed it on them as of law. Yet, more often than 
 otherwise, it is shown in proof, not by witnesses to the con- 
 tract, but by circumstantial evidence.^ 
 
 § 71. The Doctrine of this Chapter restated. 
 
 The contract treated of in this chapter is an express one,, 
 ^^ proved by circumstantial evidence. And, should the ques- 
 tion whether it was in writing, or even whether it was under 
 seal, be important, there are cases in which the affirmative 
 of this also may be shown by the like evidence. Thus, to 
 draw another illustration from the proof of marriage, its 
 existence may be presumed from circumstances, even under 
 laws which require minute formalities in its constitution. 
 
 1 1 Bishop Mar. & Div. I 218, 219, 237, 482-518, 538. 
 
 25 
 
§ 72 LAW OF CONTHACTS. 
 
 CHAPTEE Vn. 
 
 CONTRACTS IMPLIED AS OF LAW. 
 
 2 72, 73. General Doctrine and Introduction. 
 74r-88. Illustrations of the Doctrine. 
 89-93. Limits of the Doctrine. 
 
 94. Doctrine of the Chapter restated. 
 
 § 72. The Doctrine, with Distinctions and Simili- 
 tudes. — Those implied contracts whicli are to be treated 
 of in this chapter are pure creations of law, not depending 
 for their existence upon any presumptions of fact. They are 
 never known in a form entirely executory ; but, in some 
 circumstances, not all, after one party has received a benefit 
 from another, the law commands payment, though there 
 was truly no bargain between them, and no promise of pay- 
 ment was made in any form. And the law's method of 
 doing this is by creating a contract ; in other words, by 
 presuming that one existed, and refusing to receive proof 
 that it did not. Now, these implied contracts are alike in 
 this, that all are creations of the law where none existed in 
 fact. In some instances, there is no proof whether there 
 was an express contract or not. But the test is, — Would 
 affirmative proof that none existed alter the case? If it 
 would, the contract, if any, is not created by law ; if it 
 would not, it is. But, in another particular, the contracts 
 of this chapter differ. In some of them the party might 
 avoid being bound by a timely disclaimer ; and he is holden 
 simply because he remained silent while receiving a benefit. 
 In others, the implied promise of payment grows out of a 
 26 
 
IMPLIED AS OF LAW. § 77 
 
 duty quite distinct from his will; and, though he should 
 protest he would not pay, and do all he could to avoid the 
 contract, still the law would impose it upon him. 
 
 § 73. How the Chapter divided. — The distinction last 
 stated would seem to indicate a line on which to divide 
 the discussions of this chapter. But, in the facts of cases, 
 the one class is found mingled with the other ; and the line, 
 which is theoretically so plain, is practically indistinct. 
 We shall, therefore, bring to view, I. Illustrations of the 
 Doctrine ; II. Limits of the Doctrine. 
 
 I. Illustrations of the Doctrine. 
 
 § 74. Groods ordered. — If one orders goods from a 
 trader, but says nothing of pay, a promise to pay for them 
 will be implied by law.^ Or, — 
 
 § 75. "Work and Services. ^ If he procures work or 
 services from a person under no special ties of relationship 
 or the like, or even receives knowingly the benefit of them, 
 the law raises the presumption that he promised to pay for 
 what he accepted to his own advantage.^ But, — 
 
 § 76. Volimtary. — If it is shown in the particular case ] 
 that the services were not rendered for pay, but were volun- ' 
 tary, no payment for them can be recovered, however great 
 the benefit conferred.^ Nor will the hope of a bequest or 
 gift from the party served change this result.* Or, — 
 
 § 77. Relationship. — Should the parties be father and I 
 
 1 Met. Con. 4. 
 
 2 Moreland v. Davidson, 21 Smith, Pa. 371 ; Ford u. Ward, 26 Ark. 360 ; 
 James v. Bixby, 11 Mass. 35, 37; In re Scott, 1 Eedf. 234; Parmington 
 Academy.^;. Allen, 14 Mass. 172, 176 ; St. Patrick's Church v. Abst, 76 111. 252 ; 
 Camfrancq v. Pilie, 1 La. An. 197 ; Dougherty v. Whitehead, 31 Misso. 255. 
 
 ' Force »; Haines, 2 Harrison, 385 ; White v. Jones, 14 La. An. 681 ; James v. 
 O'Driscoll, 2 Bay, 101 ; Watson u. Ledoux, 8 La. An. 68 ; Bartholomew v. 
 Jackson, 20 Johns. 28. 
 
 " Davison v. Davison, 2 Beasley, 246 ; Little v. Dawson, 4 Dall, 111 ; Lee v. 
 Lee, 6 Gill & J. 316 ; Kenuard v. Whitson, 1 Houston, 36. 
 
 27 
 
§ 82 LAW OF CONTRACTS. 
 
 son, or other near relatives, the presumption of a contract to 
 pay for the services on the one hand, and for board on the 
 other, will not ordinarily arise.^ Again, — 
 
 § 78. Sure'tyslup. — One who bec6mes surety for another 
 is, if compelled to pay, entitled to recover the amount of 
 him on a contract which the law will imply, though nothing 
 on the subject was said when the suretyship was entered into.^ 
 And, — 
 
 § 79. Joint Promisors. — In a case not of suretyship, if 
 two have jointly undertaken to pay a particular sum, one 
 who pays the whole can recover half of it from the other.^ 
 
 § 80. Cases distinguished. — In the foregoing cases 
 there is no improbability that, in fact, the party may have 
 promised payment. But, in other cases, plainly he did not. 
 Thus,— 
 
 § 81. Money wrongfully obtained. — If, by fraud, du- 
 ress, or any trespass, a man gets possession of another's 
 money or other property, the law raises the promise to 
 return the same, though plainly he did not mean to do it, 
 and could not have so contracted in fact.* Or, — 
 
 § 82. Labor of Apprentice. — If a man knowingly 
 entices away, or takes by force, or harbors another's 
 apprentice, the law creates a promise from him to the 
 
 ' Harris v. Currier, 44 Yt. 468 ; Mariner v. Collins, 5 Harring. Del. 290 ; 
 Cauble v. Eyman, 26 Ind. 207 ; Hertzog v. Hertzog, 5 Casey, Pa. 465 ; Hayes 
 V. McConnell, 42 Ind. 285 ; Daubenspeck v. Powers, 32 Ind. 42. 
 
 ■' Copis V. Middleton, Turn. & E. 224 ; Gibbs v. Bryant, 1 Pick. 118, 121 ; 
 Powell V. Smith, 8 Johns. 249 ; Hassinger v. Solms, 5 S. & E. 4, 8 ; Ward v. 
 Henry, 5 Conn. 595 ; Appleton v. Bascom, 3 Met. 169. 
 
 » Owens V. Colfinson, 3 Grill & J. 25. And see Snyder v. Kirtley, 35 Misso. 
 423. 
 
 * Gilbert v. Eoss, 1 Strob. 287 ; Hinsdill v. White, 34 Vt. 558 ; Pheteplace 
 V. Eastman, 26 Iowa, 446 ; Swatara Eaiboad v. Brune, 6 Gill, 41 ; Gorman v. Car- 
 roll, 7 Allen, 199 ; Jamison v. Moon,- 43 Missis. 548 ; Gordon v. Bruner, 49 Misso. 
 570; Hagaman v. Neitzel, 15 Kan. 383; McDonald v. Todd, 1 Grant, Pa. 17; 
 McDonald v. Peacemaker, 5 W. Va. 439 ; Allen v. Burlington, 45 Vt. 202 ; 
 Wilson V. Short, 6 Hare, 366. 
 28 
 
IMPLIED AS OF LAW. § 85 
 
 master to pay the latter for the services rendered by the 
 apprentice.^ In these cases, and those mentioned in the 
 last section, there is generally a concurrent remedy by an 
 action for the tort, which the injured party may elect if he 
 chooses. Again, — 
 
 § 83. Duty done — (Husband and Wife — Parent and 
 
 Child) There are duties which the law or good conscience 
 
 casts on men ; and, on their performance, a promise from 
 the person benefited to pay is created, or not, according to 
 the nature of the case. The relation of husband and wife 
 is so intimate and mutually dependent that no promise is 
 implied by either to pay for services rendered by the other.' 
 And so it is generally of the relation of parent and minor 
 child.' But, where there is no such mutual dependence, 
 and one discharges a duty to another, expecting to be paid 
 for it, conferring on him a benefit which necessity required 
 him to have, the law will create a promise to pay. Thus, — 
 § 84. Medical Aid In Emergency. — Should a medical 
 practitioner be called by an unauthorized person to a man 
 deprived of his senses by a blow, rendering immediate relief 
 necessary to save life, duty would require that the relief be 
 given. Andjif the practitioner gave it, not in charity but 
 expecting to be paid, the law would create, a promise of 
 payment from the patient, who, in fact, not even asked for 
 the aid, or consented to its being rendered ; being incapable 
 of asking or consenting.* So, — 
 
 § 85. STecessaries, etc., to Insane Person. — In any 
 case of insanity, one who, by formal agreement with the 
 insane person, not knowing of the mental unsoundness, or 
 otherwise acting in good faith at the call of an emergency, 
 
 1 Poster V. Stewart, 3 M. & S. 191 ; Lightly v. Clouston, 1 Taunt. 112 ; Bades 
 V. Vandeput, 5 East, 39, note, 4 Doug. 1. 
 
 2 1 Bishop Mar. Women, g 883, 886, 887 ; 2 lb. g 438, 456, and other places. 
 2 2 Kent Com. 189 et seq.; ante, J 77. 
 
 * Arguendo, in Kichardson v. Strong, 13 Ire. 106, 107. 
 
 29 
 
§ 86 LAW OF CONTRACTS. 
 
 supplies him with what the law terms "necessaries," — 
 being things needful to his sustenance or comfort, and suit- 
 able to his means, condition, and habits of life, — can 
 recover a reasonable compensation for them, on a promise 
 implied by law. " If the law were not so, the insane might 
 perish."^ Even expenditures and services for the protec- 
 tion of the insane person's estate may be included in this 
 class. ^ And the cases go to the extent that, though a con- 
 tract with such person is, as a contract, void or voidable, 
 yet, if the other party does not know of the insanity, and 
 confers on him or his estate a substantial benefit by execute 
 ing what was in good faith supposed to be a valid agreement^, 
 and the parties cannot, on a rescission of such agreement,' 
 be placed in statu quo, he may be compelled to pay what 
 the benefit conferred was worth .^ 
 
 § 86. Necessaries to Infants. — Though an infant (being 
 any person under twenty-one years of age) has not the same 
 power of contract as an adult, yet, if he is not provided for 
 by his parents, and is in want, one who, in response to his 
 request, supplies him with necessaries can recover of him 
 what they are worth, on a conti-act which the law will 
 create.* The drawing of a tooth by a dentist, when decayed 
 and giving him pain, is within this rule.^ By the doctrine 
 of some courts, denied by others, an infant in need, not 
 emancipated or deserting his home, may in like manner 
 charge his father for reasonable necessaries ; ^ in many cir- 
 
 1 Sawyer v. Lufkin, 56 Maine, 308 ; Richardson v. Strong, 13 Ire. 106 ; Pearl 
 V. McDowell, 3 J. J. Mar. 658 ; Skidmore o. Eomaine, 2 Brad. 122 ; Leach v. 
 Marsh, 47 Maine, 548 ; Baxter v. Portsmouth, 5 B. & C. 170. 
 
 ' Williams v. Wentworth, 5 Beav. 325. 
 
 ' "Wilder 1). Weakley, 34 Ind. 181 ; Matthiessen & Weichers Kefining Co. v. 
 McMahon, 9 Vroom, 537 ; Lancaster National Bank v. Moore, 28 Smith, Pa. 
 407; Behrens «. McKenzie, 23 Iowa, 333; Ballard v. McKenna, 4 Rich. Eq. 
 358 ; Sims v. McLure, 8 Rich. Eq. 286 ; Dodds v. Wilson, 1 Tread. 448. 
 
 * Parsons v. Keys, 43 Texas, 557 ; Met. Con. 69. 
 
 6 Strong V. Poote, 42 Conn. 203. 
 
 ' 2 Bishop Mar. & Div. ? 528. 
 30 
 
IMPLIED AS OF LAW. V § 90 
 
 cumstances, by all opinions, he will be presumed to have 
 authority from the parent.^ 
 
 § 87. N^ecessaries to Wife. — Whatever be the rule 
 between parent and child, the duty of the husband to sup- 
 port the wife, while she is in the path of duty, is by all 
 opinions absolute. And if, not being herself in the wrong, 
 she is destitute through his neglect or refusal, the law will 
 create a promise by him to pay any third person who may 
 furnish necessaries to her, at her request, directing them to 
 be charged to him.^ Again, — 
 
 § 88. Saving Property. — The duty to save the property 
 of a third person is so absolute that he "who does it in an 
 emergency when otherwise it would be lost, not in mere 
 voluntary kindness,^ but expecting to be paid, can recover 
 from the owner compensation for his outlay or labor, on a 
 contract created by law. If the owner had abandoned the 
 article, and did not seek to reclaim it, the rule would be 
 otherwise ; for then it would belong to the finder.* 
 
 II. Limits of the Doctrine. 
 
 § 89. Ifo Contract in Fact. — As already observed,* tte 
 doctrine of this chapter proceeds on the hj^iothesis that, in 
 fact, no contract existed between the parties ; either there 
 being, none in form, or a formal one being invalid. And 
 the absence of proof as to how this was, is equivalent to a 
 showing that there was none. But, — 
 
 § 90. Express Contract. — If there was an express con- 
 
 1 And see Stanton o. "Willson, 3 Day, 37; Keaton v. Davis, 18 Ga. 457; 
 Gordon v. Potter, 17 Vt. 348 ; "Weeks v. Morrow, 40 Maine, 151 ; Towneend v. 
 Burnham, 33 N. H. 270; Kelly v. Davis, 49 N. H. 187. 
 
 ' 1 Bishop Mar. & Div. | 553, 555, 565, 568 et seq., 578. 
 
 ' Watson V. Ledoux, 8 La. An. 68. 
 
 * 2 Kent Com. 356 ; Chase v. Corcoran, 106 Mass. 286. See Perkins v. 
 Ladd, 114 Mass. 420; Boothe v. Pitzpatrick, 36 Vt. 681. 
 
 5 Ante, ? 72. 
 
 31 
 
§ 91 LAW OF CONTEACTS. 
 
 tract, and it was valid, the case is different. The acts of 
 the parties having been done under it, and its terms not 
 departed from, it will .furnish the limit of their respective 
 rights, and no contract will be implied.^ There is authority 
 for the qualification, that, if the express contract is not 
 under seal, and embraces only what the law would imply, 
 a party suing may proceed on it or on the implied contract 
 at his election.^ But this is contrary to reason, for it 
 imputes to the law the folly of creating a useless thing, — 
 that is, a contract for which there is no occasion, — audit 
 is believed not to be the better doctrine.^ When work has 
 been done, or anything delivered and accepted, that creates 
 an implied promise to pay for it ; and the rule is the same, 
 though it was in execution of an express contract,* or partly 
 in execution of such contract, which was in part departed 
 from.* 
 
 § 91. Express Contract void. — Where there is an 
 express contract, which is voidable or void, and there- 
 upon the law creates a contract, — as, where fiecessaries 
 are furnished to a minor or insane person on a formal 
 agreement, — the terms of such contract are not control- 
 ling, though they may be looked to, but the party is to 
 recover what the thing furnished was reasonably worth.* 
 
 ' Toussaint v. Martinnant, 2 T. R. 100 ; North v. Nichols, 37 Conn. 375 ; 
 Whiting u. Sullivan, 7 Mass. 107 ; Draper v. Randolph, 4 Harring. Del. 454 ; 
 Voorhees ». Combs, 4 Vroom, 494. 
 
 ^ Gibbs V. Bryant, 1 Pick. 118 ; Princeton, etc., Turnpike v. Grulick, 1 Harri- 
 son, 161. 
 
 3 And see Walker v. Brown, 28 HI. 878 ; Dermott v. Jones, 2 Wal. 1 ; Hyde 
 V. Liverse, 1 Cranch C. C. 408; Haupin v. Pic, 2 Cranch C. C. 38; Brockett. 
 V. Hammond, 2 Cranch C. C. 56 ; Brown v. Perry, 14 Ind. 32 ; Eggleaton v. 
 Buck, 24 111. 262 ; Western v. Sharp, 14 B. Monr. "l77 ; Chandler v. The State, 
 5 Har. & J. 2S4. 
 
 * Draper v. Randolph, supra ; Elder v. Hood, 38 111. 533 ; Met. Con. 7. 
 
 ^ Adams v. Cosby, 48 Ind. 153 ; Watchman v. Crook, 5 Gill & J. 239. 
 
 6 Parsons v. Keys, 43 Texas, 557 ; Ballard v. McKenna, 4 Rich. Eq. 358 ; 
 Hyer v. Hyatt, 3 Cranch C. C. 276. 
 32 
 
IMPLIED AS OF LAW. § 94 
 
 § 92. Payment originaUy expected We have seen,^ 
 
 that, if services are rendered gratuitously, pay cannot after- 
 ward be claimed. And it is believed that no contract will 
 be implied where the consideration was originally intended 
 for a gift.^ Thus, — 
 
 § 93. Charity — Relief by Town to Pauper What is 
 
 given to the poor cannot be recovered back ; and, if a town, 
 under the poor laws, bestows immediate relief on a person 
 having a lawful settlement, it cannot afterward, in the 
 absence of fraud, make him pay for the relief, as on an 
 implied promise, though he is able.' 
 
 § 94. The Doctrine of this Chapter restated. 
 
 When a duty is cast upon one by a statute,* or by what 
 is sometimes termed " equity and good conscience" (the 
 standard whereof is to be found in the books of the law 
 rather than in those on moral science ) ,® or in any way by 
 the law, whether statutory or common,® — or, when one has; 
 been benefited by another who was discharging such a 
 duty,^ or responding to an imperative social call,' under the 
 
 1 Ante, I 76. 
 
 2 Whaley v. Peak, 49 Misso. 80; Schnell </. Schroder, 1 Bailey Bq. 834; 
 Safety Deposit Life Ins. Co. b. Smith, 65 111. 309; Eockford, etc., Eailroad 
 V. Sage, 65 111. 328 ; Watson v. Ledouz, 8 La. An. 68 ; Davenport v. Mason, 
 15 Mass. 85, 90. 
 
 ' Stow V. Sawyer, 3 Allen, 515, 517. 
 
 * Waller v. Kentucky Bank, 3 J. J. Mar. 201, 205 ; Bath v. Freeport, 5 
 Mass. 325 ; Brigham v. Eveleth, 9 Mass. 538 ; Hillsborough v. Londonderry, 43 
 N. H. 451. 
 
 * Howe ». Buffalo, etc., Eailroad, 37 N. T. 297; Turner u. Jones, 1 Lans. 147 
 Thompson v. Thompson, 5 W. Va. 190 ; Allen v. McKean, 1 Sumner, 276, 317 
 Wilson V. Sergeant, 12 Ala. 778 ; Gardner Manuf. Co. u. Heald, 5 Greenl. 381 
 Brinckerhoff ». Wemple, 1 Wend. 470; Wilby ». Phinney, 15 Mass. 116; Stuart 
 V. Lake, 33 Maine, 87. 
 
 « Baker v. Thayer, 3 Met. 312, 315; ante, ? 83. 
 ' Camden v. Mulord, 2 Dutcher, 49. 
 
 * Hewett V. Bronson, 6 Daly, 1. 
 
 33 
 
 3 
 
§ 94 LAW OF CONTRACTS. 
 
 anticipation of being paid, — or, again, has knowingly 
 accepted something of value from another, who may be pre- 
 sumed to have been expecting compensation,^ the law creates 
 a promise from him to do the thing or pay for the benefit. 
 Yet these propositions are to be accepted as in some degree 
 limited and defined by what has been the course of the 
 courts heretofore. In other words, the law creates a 
 promise from one person to another, though none was in 
 fact made, whenever such assumed promise is necessary as 
 a foundation on which to enforce so miich of natural, statu- 
 tory, or common-law justice as comes within judicial cog- 
 nizance. Hence, in the application of these principles, the 
 court takes into view the equities of the individual case, 
 what has been decided before, and the analogies to be drawn 
 from the entire statutory and unwritten law ; being, how- 
 ever, in the main, guided by past decisions in like cases. 
 
 1 Day V. Caton, 119 Mass. 513. 
 34 
 
IMPLIED FROM EXPRESS. § 97 
 
 -t 
 
 CHAPTER VIII. 
 
 CONTRACTS IMPLIED FROM EXPRESS ONES. 
 
 § 95. Nature of. — Men, when they speak, and even 
 when they write, do not put all their meaning into words. 
 From this fact grows the proposition that, in law, thejrwill 
 often be understood to mean, while contracting, more than 
 they say. Thus, — 
 
 § 96. Title to Thing sold — (Warranty). — If one sells 
 an article of personal property in his possession, as his own, 
 and for a fair price, in law he also warrants the title.^ But 
 when he has it not in possession,^ and in some other circum- 
 stances,^ there is no warranty of title implied. Also, — 
 
 § 97. Quality. — The warranty by implication of law 
 does not ordinarily extend to the quality of a chattel sold, 
 even where the full price for a good article is paid.* But, 
 
 ' 2 Kent Com. 478 ; 'Williamson v. Sammons, 34 Ala. 691 ; Linton v. Por- 
 ter, 31 HI. 107 ; Chancellor v. Wiggins, 4 B. Monr. 201 ; Defreeze v. Trumper, 
 1 Johns. 274; Cozzins v. Whitaker, 3 Stew. & P. 322; Boyd v. Whitfield, 19 
 Ark. 447 ; Sherman v. Champlain Transp. Co., 31 Vt. 162 ; Costigan v. Hawk- 
 ins, 22 Wis. 74; Fawcett v. Osborn, 32 111. 411 ; Word v. Cavin, 1 Head, 506. 
 See Sparks v. Messici, 65 N. C. 440. 
 
 " Lackey v. Stouder, 2 Ind. 376 ; Huntington u. Hall, 36 Maine, 501 ; Scranton 
 V. Clark, 39 N. Y. 220 ; Scott v. Hix, 2 Sneed, Tenn. 192 ; Long v. Hicking- 
 bottom, 28 Missis. 772. 
 
 3 Richardson v. Tipton, 2 Bush, 202 ; The Monte Allegre, 9 Wheat. 616 ; Yates 
 V. Bond, 2 McCord, 882. 
 
 * 1 Bishop Crim. Law, 6th ed. g 11; post, | 219; Preston?;. Dunham, 52 
 Ala. 217; West v. Cunningham, 9 Port. 104; Mason v. Chappell, 15 Grat. 
 572 ; Weimer v. Clement, 1 Wright, Pa. 147 ; Beninger v. Corwin, 4 Zab. 
 257; Johnston v. Cope, 3 Har. & J. 89; Penniman v. Pierson, 1 D. Chip. 394; 
 Dean v. Mason, 4 Conn. 428 ; Boit v. Mavbin, 52 Ala. 252 ; G-ossler v. Eagle 
 
 35 
 
§ 100 LAW OF CONTRACTS. 
 
 OH this question, judicial opinions are not quite harmonious ; 
 some accepting the doctrine of the civil law, contrary to the 
 commons-law rule, that the taking of a sound price warrants 
 the article sound.^ And the implied warranty of soundness 
 may extend to things at sea, or otherwise not in a position 
 to be inspected by the purchaser, and to sales by sample.* 
 
 § 98. Warranty of Note. — If one sells a promissory 
 note, the law implies the warranty that it is not forged, but 
 genuine and binding on the parties,^ and not subject to any 
 legal defence.* So — 
 
 § 99 . Faithfulness and Capacity. — A person who under- 
 takes a particular business contracts also, by implication, 
 with his employer to integrity, care, and reasonable skill." 
 Again, — 
 
 § 100. Warranty of Agency. — One who enters into a 
 contract with another as the agent of a third person, agrees 
 also with the other, in matter of law, that he is such agent.* 
 
 Sugar Refinery, 103 Mass. 331 ; .(Jaylord Manuf. Co. v. Allen, 53 N. Y. 515; 
 Jones V. Murray, 3 T. B. Monr. 83 ; Emerson v. Brigham, 10 Mass. 197 ; Moses 
 1). Mead, 1 Denio, 378, 5 lb. 617; Bartlett u. Hoppock, 34 N. T. 118 ; Gold- 
 rich V. Eyan, 3 E. D. Smith, 324; "Wright v. Hart, 18 Wend. 449; s. c. in 
 court below, nom. Hart v. Wright, 17 Wend. 267 ; Holden v. Dakin, 4 Johns. 
 421. 
 
 • Champneys v. Johnson, 2 Brev. 268 ; Rose v. Seattle, 2 Nott & McC. 538 ; 
 Crawford v. Wilson, 2 Mill, 353 ; Barnard v. Yates, 1 Nott & MoC. 142 ; Lester 
 V. Graham, 1 Mill, 182 ; Missroon v. Freeman, 2 Nott & McC. 76 ; Mitchell «. 
 Duhose, 1 Mill, 360; Thompson v. Lindsay, 1 Tread. 236, 3 Brev. 305; Toris 
 V. Long, Taylor, 17. ' 
 
 2 Moore v. McKinlay, 5 Gal. 471 ; Getty v. Rountree, 2 Chand. 28 ; Fish v. 
 Koseberrj', 22 111. 288; Howard v. Howey, 23 Wend. 350; Hanks v. McKee, 2 
 Litt. 227 ; Waring v. Mason, 18 Wend. 425 ; Whitaker «. Hueske, 29 Texas, 
 355; Phelps v. Quinn, 1 Bush, 375. 
 
 » Lohdell V. Baker, 1 Met. 193 ; Merriam v. Wolcott, 3 Allen, 258 ; Bell v. 
 Cafferty, 21 Ind; 411. And see Presbury v. Morris, 18 Misso. 165. 
 
 * Pake V. Smith, 2 Abb. Ap. Dec. 76. And see Thomas v. Bartow, 48 
 N. Y. 193. 
 
 5 Met. Con. 5 ; Stevens v. Walker, 55 111. 151 ; Zulkee v. Wing, 20 Wis. 408 ; 
 Waul V. Hardie, 17 Texas, 553. 
 « CoUen V. Wright, 7 Ellis & B. 801, 8 lb. 647; Baltzen v. Nicolay, 53 N. Y. 
 36 
 
IMPLIED FROM EXPRESS. § 106 
 
 § 101. In Conveyances of Land. — In conveyances of 
 land, warranties are implied.^ Generally they may exist 
 though' there are express warranties also, but they cannot 
 have an effect contrary to what is expressed.^ It will not 
 be well here to enter into this learning ; but, — 
 
 § 102. Land bounded on Street. — Where a deed 
 bounds the land on one side by a way, it creates by implica- 
 tion the covenant that there is such a way.^ 
 
 § 103. Implications from Particular Terms. — In the 
 illustrations thus far, the implied contract has, in the main, 
 grown out of the general nature of the express one, or of 
 the sort of transaction. In other instances, it depends more 
 on the particular terms of the express contract. As, — 
 
 § 104. " House " — " Mill." — In a gra^t or reservation, 
 the word "house" or "mill" carries by implication the 
 land on which it stands, being necessary to the enjoyment 
 of the thing expressed.* 
 
 § 105. General Doctrine. — The foregoing are but illus- 
 trations of a general doctrine ; namely, that, from an 
 expressed undertaking, the law will also imply whatever 
 the parties may be reasonably supposed to have meant, and 
 what is essential to render the transactipn fair and honest. 
 
 § 106. The Doctrine of this Chapter restated. 
 
 When parties enter into a contract in terms, the law pre- 
 sumes each of them to be acting in good faith toward the 
 
 467 ; Spedding v. Nevell, Law Rep. 4 C. P. 212 ; Richardson v. Williamson, 
 Law Rep. 6 Q. B. 276. 
 1 4 Kent Com. 473. 
 
 * Roebuck v. Duprey, 2 Ala. 535 ; Blair v. Hardin, 1 A. K. Mar. 231 ; 
 Morris V. Harris, 9 Gill, 19 ; Gates v. Caldwell, 7 Mass. 68 ; Sumner v. "Wil- 
 liams, 8 Mass. 162, 201; Vanderkarr v. Vanderkarr, 11 Johns. 122; Kent «. 
 Welch, 7 Jonns. 258; Crouch v. Powle, 9 N. H. 219. 
 
 3 Parker u. Smith, 17 Mass. 413 ; Emerson v. Wiley, 10 Pick. 310, 315 ; 
 Tobey v. Taunton, 119 Mass. 404. 
 
 * Bacon v. Bowdoin, -22 Pick. 401, 406 ; Webster ■». Potter, 105 Mass. 414, 415. 
 
 37 
 
§ 106 LAW OP CONTRACTS. 
 
 other ; and it binds each to the other, to whatever good 
 faith requires. The implication may be derived from the 
 words employed, from the acts of the parties viewed in con- 
 nection with the thing contracted about, or from the nature 
 of the transaction. But herein, as in all other things, the 
 law proceeds on its own reasons, and follows its own prece- 
 dents ; so that, in a particular case, the question whether 
 or not a contract is to be implied, enlarging or limiting the 
 express one, and, if so, what it shall be, must be answered 
 by a resort to the adjudications, rather than to natural 
 reason and the books of ethics. 
 38 
 
FURTHER OF IMPLIED. § 109 
 
 CHAPTER IX. 
 
 FURTHER X3F THE IMPLIED CONTRACTS OF THE LAST TWO 
 
 CHAPTERS. 
 
 2 107,108. Introduction. 
 
 109-120. Created by Law where none in Pact. 
 
 121-124. Grafted by Interpretation on Express. 
 
 125. Doctrine of the Chapter restated. 
 
 § 107. Distinctions — What for this Chapter. — The 
 
 contracts of the last two chapters — namely, those created 
 by law where there is none in fact, and those which are 
 grafted by interpretation on express ones — constitute two 
 classes differing from each other, and each differing from 
 the express contract, while in leading features all contracts 
 are alike. It is the purpose of this chapter to call attention 
 to some differences and similitudes. 
 
 § 108. How the Chapter divided. — We shall consider, 
 
 I. Contracts created by Law where there is none in Fact ; 
 
 II. Contracts grafted by Interpretation on Express ones. 
 
 I. Contracts created by Law where there is none in Fact. 
 
 § 109. Word "Contract." — Frequently, and perhaps 
 more often than otherwise, a legal person, employing the 
 word contract, means by it an undertaking voluntarily 
 entered into between the parties ; not drawing into con- 
 templation any creation of the law.^ And such is nearly, or 
 quite, the universal popular meaning. Therefore, — 
 
 1 Indeed, the more common definitions in our books are so; as, "an agree- 
 
 39 
 
§ 112 LAW OF CONTRACTS.. 
 
 § 110. In Statutes and Private Writings. — When the 
 ■word " contract " is employed in a statute, or in a written 
 agreement between parties, it is generally interpreted as 
 exclusive of creations and acts of the.law. For example, — 
 
 §111. Statute of Frauds. — The statute of frauds ,^ under 
 which contracts on some particular subjects are required to 
 be in writing, is construed as not extending to those which 
 are created by law or by special statutes, not depending on 
 the will of the parties.^ "Within this rule are — 
 
 § 112. Resulting Trusts. — When land is bought and 
 paid for with the money of one man and the deed is made 
 to another, and there is no evidence or presumption that a 
 gift was intended, the law will imply a promise by the 
 grantee to hold it in trust for the person whose money pro- 
 cured the conveyance. This is called a resulting trust.' 
 Now the statute of frauds, in force, with slight variations, 
 in England and all our States, requires agreements affecting 
 interests in lands to be in writing. Some forms of the 
 statute expressly except resulting trusts ; but, whether the 
 exception is in the statute or not, the consequence is the 
 same ; namely, that the trust thus created by law is good, 
 though there is tio writing declaring it, and it -may be even 
 shown by verbal evidence.* By a like construction, — 
 
 ment in which a party undertakes to do," etc. Ante, § 1, note. And, in this 
 sense, oftener than in its full meaning, the word is used in our treatises on 
 contracts. So the popular dictionaries of the language limit the significa- 
 tion of the word in the same way. 
 
 ' As to which see post, J 498. 
 
 2 Thompson u. Blanchard, 3 Comst. 335 ; Doolittle v. Dininny, 31 N. Y. 350; 
 Smith V. Bradley, 1 Koot, 150 ; Goodwin v. Gilbert, 9 Mass. 510. 
 
 » 2 Bishop Mar. "Women, § 118 et eeq. ; Follansbe v. Kilbreth, 17 111. 522 ; 
 Chastain o. Smith, 30 Ga. 96 ; Brown v. Dwelley, 45 Maine, 52 ; Smith v. 
 Boquet, 27 Texas, 507 ; Gee v. Gee, 32 Missis. 190; Hatton v. Landman, 28 Ala. 
 127 ; Partridge v. Havens, 10 Paige, 618 ; Douglass v. Brice, 4 Rich. -Eq. 322 ; 
 Shepherd v. White, 10 Texas, 72. 
 
 * 4 Kent Com. 305, 306 ; Caple v. McCollum, 27 Ala. 461 ; Cook v. Ken- 
 nerly, 12 Ala. 42 ; McGuire v. Ramsey, 4 Eng. 518 ; Dean v. Dear, 6 Conn. 285; 
 
 40 
 
FURTHER OF IMPLIED. § 118 
 
 § 113. Bankruptcy as to Assignmeiit of Policy. — An 
 
 insurance policy, with a clause making it void if assigned 
 without the consent of the party insuring, does not become 
 so on an assignment in bankruptcy, executed by the register 
 in pursuance of law.^ So, — 
 
 § 114. Condition in Covenant. — A lease with condition 
 that the lessee shall not " let, set, assign, transfer, make 
 over, barter, exchange, oij otherwise part with the indent- 
 ure," does not prevent the leased premises being taken in 
 execution, even though the judgment was confessed on a 
 warrant of attorney from the lessee. By express words, 
 it would be in the power of the parties to prevent this 
 result.^ Therefore, — 
 
 § 115. Not Written or Unwritten. — A contract created 
 by law — not merely presumed,^ but created* — constitutes 
 a class by itself ; being deemed neither written nor unwritten. 
 
 § 116. Mental and Legal Capacity. — While an express 
 contract requires tnental and legal capacity in the party, 
 the law can create one without. We have seen illustrations 
 of this in cases of infants and insane persons.' Thus, — 
 
 § 117. Infant for "Wife's Ante-nuptial Debts. — An 
 infant cannot contract to pay the debts of another.* Yet, 
 if he marries, the law creates for him the contract to pay 
 the ante-nuptial debts of his wife.'' Again, — 
 
 § 118. Ijuplied in Infant's accepting Deed-poll. — As 
 
 Peabody v. Tarbell, 2 Cush. 226 ; Hanff v. Howard, 3 Jones Bq. 440 ; James 
 V. Fulcrod, 5 Texas, 512 ; Leakey v. Gunter, 25 Texas, 400; Cloud v. Ivie, 28 
 Misso. 578; Farrington. v. Barr, 38 N. H. 86; Benson v. Matsdorf, 11 Johns. 
 90; Malin v. Malin, 1 Wend. 625; Slaymaker v. St. Johns, 5 "Watts, 27. 
 
 » Starkweather v. Cleveland Ins. Co., 2 Abb. U. S. 67. 
 
 2 Mitchinson v. Carter, 8 T. R. 57. 
 
 » Ante, 2 67, 70. 
 
 * Ante, § 72 et seq. 
 
 s Ante, I 85, 86. 
 
 6 Maples ii. "Wightman, 4 Conn. 376 ; Nightingale v. "Withington, 15 Mass. 
 272, 274. 
 
 ' Butler V. Breck, 7 Met. 164. 
 
 41 
 
§ 120 LAW OF CONTEACTS. 
 
 an infant has the capacity to accept an estate, he is bound 
 by any conditions in the deed conveying it to him.' Plainly, 
 therefore, if the deed has recitals of things to be done by 
 the grantee, the law, which would found a promise upon 
 them were he of age, will do it equally in the case of an 
 infant. But, further, — 
 
 § 119. Continued — Law's Promise not a Specialty. — 
 Though a promise created by the law comes through a 
 specialty, it is not itself deemed to be such ; just as, we 
 have seen,^ it is not either written or oral. If one accepts 
 a deed-poll conveying lands, and it recites that he shall do 
 such and such things, the law creates a promise in him to 
 do them ; but the promise is not, like the deed-poll, under 
 seal. It is not a covenant, but a simple-contract promise, 
 on which the action of assumpsit, but not of covenant, may 
 be maintained.' Neither is the promise deemed to be in 
 writing, for it is not within the statute of frauds ; it is, let 
 us repeat, simply a promise in law.* 
 
 § 120. Similitudes. — In most other respects, these 
 implied contracts do not differ from express ones. As just 
 said, the action of assumpsit will lie upon them.® And they 
 are declared upon in the same manner as express contracts. 
 For example, the allegation of a promise is necessary.^ 
 Indeed, the suit appears to be in every particular the same 
 as upon any other contract not under seal. 
 
 ' Parker v. Lincoln, 12 Mass. 16, 18. 
 
 « Ante, i 115. 
 
 ' Harriman v. Park, 55 N. H. 471 ; Mellen v. Whipple, 1 Gray, 317 ; Brewer 
 V. Dyer, 7 Cush. 337, 340; Guild v. Leonard, 18 Pick. 511 ; Nugent v. Kiley, 1 
 Met. 117; Newell v. Hill, 2 Met. 180. 
 
 * Goodwin v. Gilbert, 9 Mass. 510, 514; Harriman ». Park, supra, Smith, J., 
 at p. 472. 
 
 5 Johnson v. Eeed, 3 Eng. 202 ; Eidgeway v. Toram, 2 Md. Ch. 303 ; Wyman 
 V. American Powder Co., 8 Cush. 168, 180; Pawlet v. Sandgate, 19 Vt. 621; 
 Stimpson v. Sprague, 6 Greenl. 470; Downing v. Freeman, 13 Maine, 90; Wood 
 V. O'Kelley, 8 Cush. 408 ; Monson v. Williams, 6 Gray, 416. 
 
 « Wingo V. Brown, 12 Rich. 279. 
 42 
 
FURTHER OF IMPLIED. § 125 
 
 II. Contracts grafted by Interpretation on Express^ Ones. 
 
 § 121. The differing Prtaciple. — Though these con- 
 tracts, like those discussed imder the last sub-title, are 
 implied by the law, yet the principle governing them after 
 they^are created is different. It is, that what is implied in 
 an express contract is as much a part of it as what is 
 expressed.^ Therefore, — 
 
 § 122. The Rule. — What comes from an express con- 
 tract by construction of law is to be deemed a part of it ; 
 and it takes the degree of a specialty, of a written contract 
 not under seal, or of an oral one, according to the degree of 
 the contract whence it was derived. Thus, — 
 
 § 123. Statute of Frauds. — Implications, created by 
 construction, may be added to the words of a contract, to 
 render it a sufficient writing under the statute of frauds.* 
 Again, — 
 
 § 124. Implied Covenants. — Where covenants are im- 
 plied in a deed — that is, come by construction from it — 
 they are to be deemed as parts of the deed. The action for 
 the breach of them is to be covenant and not assumpsit, and 
 they are to be set out in the declaration in the same manner 
 as if they were expressed .^ 
 
 § 125. The Doctrine of this Chapter restated. 
 
 Those implied contracts which come from express ones 
 are, in fact, parts of the express contracts themselves ; 
 though, upon some of them, not upon all, separate suits 
 
 - Hudson Canal o. Pennsylvania Coal Co., 8 "Wal. 276. It is the same of 
 what is implied in a statute. 2 Bishop Mar. Women, 2 63. 
 
 2 Smith Con. 2d Eng. ed. 53; Hawes o. Armstrong, 1 Bing. N. C. 761; 
 Fessenden B. Mussey, 11 Cush. 127. 
 
 3 Grannis u. Clark, 8 Cow. 36 ; Barney v. Keith, 4 Wend. 502 ; Shaeffer v. 
 Geisenburg, 11 Wright, Pa. 500; Wood v. Hardisty, 2 Collyer, 542. 
 
 43 
 
§ 125 LAW OF CONTRACTS. 
 
 may be maintained. The other class of implied contracts, 
 which more emphatically the law creates, have a distinct 
 status of themselves. In pleading, where things are set out 
 according to their legal effect, this promise is alleged in the 
 same manner as an express promise, while in real fact it may 
 be the reverse of what the party expressed. And persons 
 having no capacity to make a promise — such as insane 
 people and infants — have this promise created for them, 
 the same as those who have the capacity. Its grade is that 
 of a simple contract, never a specialty ; yet it is not deemed 
 to be written, nor is it treated as oral. The law, having 
 created it, enforces it without reference to artificial distinc- 
 tions. 
 44 
 
ESTOPPEL AS A CONTRACT. § 127 
 
 CHAPTEE X. 
 
 ESTOPPEL AS A SPECIES OF CONTRACT CREATED bV LAW. 
 
 § 126. What for this Chapter. — Estoppels are of sev- 
 eral sorts, not all of which have any relation to contracts. 
 We shall consider only, in brief, some which are related. 
 
 § 127. How defined. — An estoppel, of the sort now 
 under consideration, is where one, in violation of legal or 
 social duty, does, omits, or says something, implying or 
 affirming what is not true ; and another, relying upon it, 
 takes some step he otherwise would not, to his injury ; in 
 which case the former is not permitted to deny the assumed 
 fact, in any controversy with the latter, to his prejudice. 
 What is really false, is, as between the parties, when thus 
 acted upon, to be conclusively taken as true.^ Thus, — 
 
 1 In a late English case, Brett, J., stated the doctrine as follows: " If, in the 
 transaction itself, which is in dispute, one has led another into the belief of a 
 certain state of facts, by conduct of culpable negligence calculated to have 
 that result, and such culpable negligence has been the proximate cause of 
 leading, and has led, the other to act, by mistake, upon such belief, to his prej- 
 udice, the second cannot be heard afterwards, as against the first, to show that 
 the state of facts referred to did not exist." Carr v. London, etc., Railway, 
 Law Eep. 10 C. P. 307, 318. And see Phillips v. Im Thurn, Law Eep. 1 C.;P. 463 ; 
 Continental Bank v. Commonwealth Bank, 50 N. Y. 575 ; Helmsley v. Loader, 
 2 Camp. 450; Lipscombe u. Holmes, 2 Camp. 441 ; O'Brieno.Wetherell, 14Kan. 
 616 ; Gotham v. Gotham, 55 N. H. 440 ; Richmond v. Dubuque, etc., Railroad, 
 33 Iowa, 422; Carroll v. Manchester, etc.. Railroad, 111 Mass. 1 ; Connihan v. 
 Thompson, 111 Mass. 270; Mercer Mining andManuf. Co. v. McKee, 27 Smith, 
 Pa. 170; Hooker o. Hubbard, 102 Mass. 239; Eaton v. Winnie, 20 Mich. 156; 
 Kuhl V. Jersey City, 8 C. E. Green, 84 ; Payne v. Burnham, 62 N. Y. 69; Con- 
 rad c. Gallery, 22 La. An. 428 ; Barnard v. Campbell, 55 N. Y. 456 ; Baltes v. 
 Ripp, 1 Abb. Ap. Dec. 78 ; Lacy v. Wilson, 24 Mich. 479. 
 
 45 
 
§ 130 LAW OF CONTRACTS. 
 
 § 128. Own Property sold. — If one discovers that his 
 own property, whether real or personal, is being sold by a 
 third person to another, who is about to purchase it in 
 ignorance of any defect in the title, common duty, due 
 from every man to every other, demands of him to make 
 known to the purchaser his claim. Then, if he does not, 
 and especially if he entices the purchaser to buy, or if he is 
 guilty of any other deceit or neglect amounting to a fraud, 
 in consequence of which the purchase is made, he is estopped, 
 as the phrase is, — that is, forbidden bylaw, — to set up 
 his claim in a court afterward ; so that the purchaser prac- 
 tically gets a good title. ^ 
 
 § 129. Compared, with Contract as of Law. — In 
 another form of words, the estoppel is, that the law creates 
 a contract of warranty, of a limited nature, between the 
 person misleading and the other who is misled. The war- 
 ranty is that the fact shall be as represented. Yet this 
 contract of estoppel is so far of an executed nature that a 
 suit cannot be maintained upon it. And perhaps the true 
 distinction is that, when a contract created by law is in 
 the executed form, it is called an estoppel in pais; when it 
 is executory, it is known by the other name. But, to pro- 
 ceed with illustrations, — 
 
 § 130. Division Line. — If two adjoining proprietors 
 recognize a j)articular line as the true dividing one, and 
 one of them erects improvements and maintains undisputed 
 possession for many years, the other will be estopped 
 thereby though the line was erroneous, and the statute of 
 limitations has not fully run.^ Moreover, — 
 
 ' 2 Bishop Mar. 'Womeii, § 487 ; "Winchell «. Edwards, 57 HI. 41 ; Leeper v. 
 Hersman, 58 111. 218; Davidson v. Silliman, 24 La. An. 225; Miller ». 
 Springer, 20 Smith, Pa. 269 ; Dean ». Martin, 24 La. An. 103 ; Trowbridge o. 
 Matthews, 28 Wis. 656; Sweezey o. Collins, 40 Iowa, 540. See Brown v. 
 Tucker, 47 Ga. 485. 
 
 ' Majors v. Rice, 57 Misso. 384. See Day v. Caton, 119 Mass. 513 ; Caluna- 
 bet V. Pacheco, 48 Cal. 395. 
 46 
 
ESTOPPEL AS A CONTRACT. § 135 
 
 § 131. Erecting House on Parol Promise. — It has been 
 held that a father who promises his son to convey to him a 
 piece of land on his erecting a house upon it, is, when the 
 house is erected, estopped from claiming title to the premises 
 as against the son.^ Again, — 
 
 § 132. Existence of Corporation. — On^ cannot, in the 
 same transaction, both affirm and deny the existence of a 
 corporation ; as, if he gives a note running to a corporation, 
 he is estopped, when called on for payment, to deny the 
 existence of the corporate body.* And — 
 
 § 133. Under Will. — One accepting a benefit under a 
 will is estopped from asserting a claim repugnant to its 
 provisions.' 
 
 • §134. Promotion of Justice — Favored or not. — These 
 illustrations show tlie ground on which equitable estoppels, 
 as they are called, proceed. There are estoppels of another 
 sort, which are said to be not favored in the law, because 
 they exclude the truth ; * but these equitable estoppels admit 
 the truth, and they are favored because they prevent fraud 
 and establish justice.® And the courts will not allow them 
 where their effect would be otherwise.® 
 
 § 135. Between whom. — They operate only between 
 parties and their privies ; strangers not being permitted to 
 take advantage of them.' 
 
 ' Campbell v. Mayes, 38 Iowa, 9. 
 
 ' Nashua Pire Ins. Co. v. Moore, 55 N. H. 48 ; Tarleton v. Kennedy, 21 La. 
 An. 500; "White v. Koss, 4 Abb. Ap. Dec. 589. See Aller v. Cameron, 3 Dillon, 
 198; McCuUough v. Talladega Ins. Co,, 46 Ala. 876; Hungerford National 
 Bank v. Van Nostrand, 106 Mass. 559 ; Mud Creek Draining Co. v. The 
 State, 43 Ind. 236. 
 
 ' Cox V. Rogers, 27 Smith, Pa. 160. And see Scholay v. Rew, 23 Wal. 331. 
 
 * Leicester v. Rehoboth, 4 Mass. 180 ; Owen v. Bartholomew, 9 Pick. 520, 
 527; Abbot v. "Wilbur, 22 La. An. 368. 
 
 s The State v. Pepper, 31 Ind. 75 ; Buckingham v. Hanna, 2 Ohio State, 551. 
 
 • Mills V. Graves, 38 111. 455. 
 
 ' Simpson v. Pearson, 31 Ind. 1 ; GriflSn v. Richardson, 11 Ire. 439; Massure 
 V. Noble, 11 ni. 531. 
 
 47 
 
§ 137 LAW OF CONTRACTS. 
 
 § 136. Wide Effect — (Lands conveyed by). — The effect 
 of these estoppels is sometimes very sweeping; as, for 
 instance, real estate, which can only be directly conveyed 
 by deed, may indirectly, as already appears, be made to 
 pass by matter in pais, without any writing, under the 
 operation of an estoppel.-^ 
 
 § 137. Tlie Doctrine of this Chapter restated. 
 
 Estoppels and contracts created by law are, when properly 
 viewed, to be ranked among what are called legal fictions. 
 A legal fiction is something which the law, for the promo- 
 tion of justice, or for the convenience of litigation, or for 
 some other sufficient reason, assumes as true, contrary to 
 the real fact ; and it will be given such form and so restricted 
 as not to work injustice, or contravene the purpose of its 
 creation.^ An estoppel, therefore, takes place whenever, 
 without it, the justice or order of the law would fail ; and, 
 where the matter pertains to contract, it operates as a species 
 of contract created by the law. And, as the law creates 
 contracts which the parties have no capacity to enter into 
 voluntarily,^ so, by an estoppel, it may accomplish what 
 they could not do voluntarily, even by deed.* 
 
 ' Brownu. Wheeler, 17 Conn. 345; Irion u. Mills, 41 Texas, 310. 
 
 2 Co. Lit. 150 a; Mostyn v. Pabrigas, Cowp. 161, 177; Bennett v. Is'aac, 10 
 Price, 154; 3xxx&v. Canon, 10 Casey, Pa. 286; "Weisenfeld v. Mispelhorn, 5 
 W. Va. 46. 
 
 ' Ante, g 84 et seq. 
 
 * 2 Bishop Mar. Women, J 488. 
 48 
 
EXECUTORY AND EXECUTED. § 140 
 
 CHAPTEK XI. 
 
 CONTRACTS DISTINGUISHED* AS EXECUTORT AND EXECUTED. 
 
 § 138. The Terms defined. — A contract is executed 
 ■when the thing agreed has been done.^ It is executory, 
 when the thing has not been done.^ If one party has per- 
 formed his part, but the other has not his, the contract is 
 executed on the one side and executory on the other. Some- 
 times one who is to do a thing has commenced the doing, 
 but not finished ; then his undertaking is executed in part 
 and in part executory. 
 
 § 139. Effect of Executed. — When a contract is exe- 
 cuted, — if it was valid, between competent parties, and 
 the execution was in exact accordance with its terms, — it 
 has ceased to be of interest in the law. Indeed, it no longer 
 exists. If it was invalid in substance, or between incom- 
 petent parties, or if the execution was defective yet accepted 
 as good, the case may be difierent, or it may not, according 
 to the facts. Thus, — 
 
 § 140. Executed Contract against Law. — If parties 
 mutually agree to do a thing contrary to law or public 
 policy, neither can enforce the undertaking against the 
 other ; still, should they proceed voluntarily and perform 
 what they have unlawfully agreed, it is the same as though 
 the contract had been originally good. Neither can recover 
 of the other what was thus voluntarily parted with.^ The 
 
 ' Frazer v. Bobinson, 42 Missis. 121 ; Eobison v. Kobison, 44 Ala. 227. 
 » Fletcher v. Peck, 6 Cranch, 87, 136. 
 
 ' Greenwood D.Curtis, 6 Mass. 858; Levet ». Creditors, 22 La. An. 105; 
 Morris V. Hall, 41 Ala. 510; Green v. Hollingsworth, 5 Dana, 173; Ingersoll ». 
 
 49 
 
§ 144 LAW OF CONTEACTS. 
 
 reason assigned for this is, that, the parties being equally in 
 fault, the law will help neither. "Whence it follows, that, — 
 
 § 141. Unlawful in One If, as in some special cases 
 
 it happens, the contract was unlawful in one of the parties 
 only, the other may recover back what he has paid under 
 it.^ And this principle is sometimes even carried to the 
 extent that, — 
 
 § 142. One less in Fault. — If both are in fault, yet 
 not equally so, and especially if the one more in the wrong 
 has taken any unconscientious advantage of the other, the 
 more culpable party may be compelled to refund what the 
 less culpable has paid.^ 
 
 § 143. Voluntary and not Illegal. — Where neither 
 party has committed a violation of law or public policy, 
 and there is no fraud, duress, or anything of the sort, the 
 rule is, that a voluntary payment which one with full 
 knowledge of the facts has made to the other cannot be 
 recovered back, though he was not compellable to make it, 
 and he did it under protest. The executed transaction 
 stands.^ 
 
 § 144. Mistake of Iiaw. — As all persons are conclu- 
 sively presumed to know what the law is,* one who makes a 
 
 Campbell, 46 Ala. 282 ; Markabury v. Taylor, 10 Bush, 519 ; Myers v. Meinrath, 
 101 Mass. 366; Barnard v. Crane, 1 Tyler, 457; Burt v. Place, 6 Cow. 431; 
 Babcock v. Thompson, 3 Pick. 446; "Worcester v. Eaton, 11 Mass. 368; Mer- 
 win V. Huntington, 2 Conn. 209; Groton v. "Waldoborough, 2 Fairf. 306; 
 Jacobs V. Stokes, 12 Mich. 381;. Spalding v. Muskingum, 12 Ohio, 544; Tyler 
 ■a. Smith, 18 B. Monr. 793; Liness v. Hesing, 44 HI. 113; Arter v. Byington, 
 44 111. 468; Boutelle v. Melendy, 19 N. H. 196. 
 
 1 Jaques v. Grolightly, 2 W.Bl. 1073, 1075, and other English and American 
 cases cited by Selden, J., in Tracy v. Talmage, 4 Kernan, 162, 183 et seq. And 
 see Curtis v. Leavitt, 15 N. Y. 9; post, ? 465, 466. 
 
 2 Smith 1). Bromley, 2 Doug. 695, note; "Worcester u. Eaton, 11 Mass. 368, 
 376; Tracy u. Talmage, 4 Kernan, 162, 181. 
 
 * Await v. Butaw Building Association, 34 Md. 435; "Williams v. Colby, 44 
 Vt. 40; Commercial Bank v. Reed, 11 Ohio, 498; Patterson v. Cox, 25 Ind. 
 261 ; Benson v. Monroe, 7 Cush. 125 ; Cook v. Boston, 9 Allen, 393. 
 
 * Bishop Crim. Law, ? 294 et seq. 
 
 50 
 
EXECUTORY AND EXECUTED. § 148 
 
 payment supposing himself compellable wMe he is not — 
 that is, pays under a mistake of law — cannot recover the 
 money back. In legal contemplation, his act was volmi- 
 tary.^ But, — 
 
 § 145. Mistake of Fact — Fraud — Duress of Groods. — 
 If he paid under a mistake of fact,** or through fraud or 
 other constraint from the other party ,^ or to^ prevent being 
 dispossessed of his property, though he knew the demand 
 to be illegal,* he may have his money again. 
 
 § 146. The Principle — (Implied Promise). ^ — Though; 
 in these cases where a payment back is enforced, the original 
 payment was in the nature of an executed contract, still, 
 as it was not purely voluntary, and was received in the 
 other party's wrong, the law creates a promise to refund, 
 and on this implied promise the suit is founded. 
 
 § 147. Void Oral Contracts. — If persons enter into a 
 contract which cannot be enforced because not in writing, 
 yet they execute its provisions, neither can undo what has 
 thus been done.* Even, — 
 
 § 148. Executed on One Side. — If such a contract has 
 been executed on one side only, the party of the other side 
 cannot be compelled to refund what he has received under 
 it, so long as he stands ready to execute it on his side. If 
 he refuses, he must refund. The law creates the promise 
 that he will.® 
 
 1 Elliott V. Swartwout, 10 Pet. 137 ; Mowatt v. "Wright, 1 Wend. 355; Bran- 
 ham V. San Jos6, 24 Cal. 585 ; Silliman v. Wing, 7 Hill, N. T. 159. 
 
 ' Manchester v. Burns, 45 N. H. 482 ; Bank of Commerce v. Union Bank, 3 
 Comst. 230; North v. Bloss, 30 N. Y. 374 ; Pearson v. Lord, 6 Mass. 81 ; Bond 
 V. Hays, 12 Mass. 34, 36 ; Lazell v. Miller, 15 Mass. 207 ; Morrell v. Wright, 1 
 Wend. 355 ; Burr v. Veeder, 3 Wend. 412 ; Dickens v. Jones, 6 Yerg. 483. 
 
 3 Ante, J 81. 
 
 ' Maxwell v. Griswold, 10 How. U. S. 242 ; Harmony v. Binham, 2 Kernan, 
 99, 109 ; White v. Heylman, 10 Casey, Pa. 124 ; Beckwith u. Prisbie, 32 Vt. 
 559; Elston v. Chicago, 40111. 514; Harvey «. Olney, 42 HI. 336; Quinnettu. 
 Washington, 10 Misso. 63. 
 
 ' Cocking V. Ward, 1 C. B. 858 ; Freeman v. Headley, 4 Vroom, 523. 
 
 Beaman v. Buck, 9 Sm. & M. 207; Richards v. Allen, 17 Maine, 296; 
 
 51 
 
§ 150 LAW OF CONTRACTS. 
 
 § 149. In General. — Such are some of the distinctions 
 between executed and executory contracts. It follows that 
 the executory ones will chiefly occupy us in these pages. 
 Indeed, the word contract alone, though properly enough 
 employed to denote both sorts, is oftener used in our books 
 as signifying an agreement which is executory, at least on 
 one side. If two persons mutually promise that the one 
 shall buy of the other, who shall sell, a piece of land, we call 
 this a contract while it remains executory ; but not after 
 the money is paid and the deed is delivered. 
 
 § 150. The Doctrine of this Chapter restated. 
 
 In general, when a thing contracted for is performed, the 
 contract is ended. And we call this an executed contract. 
 Before performance, we term the contract executory. But, 
 in some circumstances, after execution, a remnant remains 
 for the law to operate upon ; as, if the contract was illegal 
 on one side, but good on the other ; or, if there was fraud, 
 duress, mistake of fact, or the like. Even in these cases, 
 the contract, strictly speaking, is at &n end ; and the law 
 implies, what it does not in ordinary circumstances, a new 
 contract in compensation for violated rights, or to adjust 
 equities between the parties. ' 
 
 Congdon v. Perry, 13 Gray, 3; Bennett ». Phelps, 12 Minn. 326; Marsh o. 
 Wykoflf, 10 Bosw. 202 ; Clancy v. Craine, 2 Dev. Eq. 363. 
 52 
 
VOID AND VOIDABLE. § 155 
 
 CHAPTER XII. ' 
 
 VOID AND VOIDABLE IN CONTRACTS. 
 
 J 151-153. Introduction. 
 
 154-157. Void. 
 
 158-162. Voidable. 
 
 163. Doctrine of the Chapter restated. 
 
 § 151. Uncertainty of Meaning. — The words void and 
 voidable are, in law writings, often used in a way to render 
 the meaning doubtful or confused. Nor is the difficulty all 
 in the language ; it extends also to the idea to be conveyed, 
 which, though at times plain and simple, is at other times 
 refined and even complex. 
 
 § 152. How defined. — A contract is void when it is 
 without any legal effect.^ It is voidable when it has Bome 
 effect, but is liable to be made void by one of the parties or 
 a third person.^ 
 
 § 153. How the Chapter divided. — We shall consider, 
 I. Void; II. Voidable. 
 
 . I. Void. 
 
 § 154. One Meaning. — In exact legal language, as now 
 understood, there is but one meaning for the term void, 
 being as above defined. But, — 
 
 § 155. Consequences of Void — (Executed). — While a 
 
 1 Zouch V. Parsons, 3 Bur. 1794, 1805 ; Baker v. Painter, Law Rep. 2 C. P. 
 492, 496 ; Manning v. Gill, Law Rep. 13 Eq. 485, 489. 
 * Pearsoll v. Chapin, 8 Wright, Pa. 9. 
 
 53 
 
§ 157 LAW OF CONTRACTS. / 
 
 void contract cannot, by any subsequent act, be confirmed,^ 
 nor Avill it constitute an adequate consideration ff)r a new 
 contract ; ^ still, in the voluntary performance of it, conse- 
 quences may be produced which will not be void. Thus, 
 within a principle already stated,^ if one voluntarily pays 
 money on a void contract, knowing the fact's which render 
 it void, whether mistaking the law or not, he cannot recover 
 the money back.* A void deed of lands conveys nothing.^ 
 And a void sale of goods passes no title, though they are 
 delivered.* 
 
 § 156. Executory. — ^A void executory contract cannot, 
 of course, be enforced by either party .^ 
 
 § 157T Word "Void" used as "Voidable." — Notunfre- 
 quently in our books the word void is inaccurately used in. 
 the sense of voidable;^ and, in some instances, where at 
 the first impression it might seem so, the use is correct. 
 For an example of the latter, an agreement to marry 
 
 ' Perkins, J 154, as cited by Lord Mansfield in Zouch v. Parsons, 3 Bur. 
 1794, 1805 ; Lowrie, C. J., in PearsoU v. Chapin, 8 Wright, Pa. 9, 15. 
 
 2 Murphy v. Jones, 7 Ind. 529 ; Ehle v. Judson, 24 Wend. 97 ; Jarvis v. 
 Sutton, 3 Ind. 289. 
 
 3 Ante, i 143, 144. 
 
 * Post, 5 433, 434; Woodburn v. Stout, 28 Ind. 77. 
 
 5 Manning v. Gill, Law Rep. 13 Eq. 485. 
 
 8 Com. Dig. "Enfant," C. 2. What void. — As to what particular con- 
 tracts are void, Lowrie, C. J., in PearsoU v. Ohapin, supra, at p. 14, 15, said : 
 " Contracts and acts that are absolutely void are contracts to do an illegal act, 
 or omit a legal public duty; usually bonds of married women ; contracts in 
 a form forbidden by law; oflBcial acts of persons having no recognized de facto 
 or dejure title to the office ; contracts to do an impossible thing, or that leave 
 uncertain the thing to be done, and such like. These are absolutely void, 
 because they have no legal sanction, and establish no legitimate bond or rela- 
 tion between the parties, and even a stranger may raise the objectiop. 2 Leon. 
 218 ; Moore, 105. The law cannot enforce that, the doing of which would be 
 a wrongto itself or to public order." In the following pages the reader will 
 see various other illustrations of void contracts. 
 
 ' Post, J 195, 274. 
 
 8 PearsoU o. Chapin, 8 Wright, Pa. 9, 13 ; Matthews v. Baxter, Law Kep. 
 8 Ex. 132, 133. 
 54 
 
VOID AND VOIDABLE. S 159 
 
 between an infant and an adult is voidable;'^ but tlie 
 expression void at the election of the infant would be equally- 
 good law-English, and more precise. "Provisions in 
 leases," said Lowrie, C. J., " are very common, that, if the 
 tenant shall not, with due promptness, perform his cove- 
 nants to build, repair, insure, pay rent, and such like, the 
 lease shall be void, or utterly null and void, to all intents 
 and purposes, or expressions of similar import ; yet these 
 terms are very often, perhaps generally, held to mean void- 
 able, and not void." ^ It is believed by the writer, however, 
 that, if the phrase ' ' at the election of the lessor "is incor- 
 porated by construction into such a form of words, they 
 will thereby be rendered strictly accurate. 
 
 II. Voidable. 
 
 § 158. Some Effect. — We have seen,^ that a voidable 
 contract, instead of being a mere nullity, has, till avoided, 
 some effect. Now, as the reader travels over the following 
 pages, he will observe that this effect is not uniform. If there 
 is any force in the contract, yet the power exists in the 
 hands of some person — as, one of the parties, or a creditor, 
 in the case of a conveyance to defraud creditors * — to avoid 
 the contract, we term it voidable ; so that the sorts of void- 
 able contracts vary greatly. And our language has no 
 terms to distinguish the sorts from one another ; hence, in our 
 books, ambiguities on this subject arise. To illustrate, — 
 
 § 159. Voidable in Fraud, Infancy, Insanity. — In a 
 
 ^ Holt V. Clarencieux, 2 Stra. 937, 939. The expression in this case, how- 
 ever, is, "voidable at his election." Voidable is what may be avoided; con- 
 sequently this expression is good, meaning that the contract may be avoided 
 at his election. But the expression, "void at his election," would be equally 
 good; meaning that, when his election had been made and executed, the con- 
 tract would be void, though it was only voidable before. 
 
 ' Pearsoll v. Chapin, ut sup. pt p. 18, 
 
 3 Ante, ? 152. 
 
 * See observations of Lowrie, C. J., in Pearsoll c. Chapin, 8 "Wright, Pa. 9. 
 
 55 
 
§ 161 LAW OF CONTEACTS. 
 
 large part of the cases, not all (a matter to be explained in 
 subsequent chapters), a contract is, not void, but voidable, 
 for fraud,^ infancy,'' or insanity.^ The effect of voidable, in 
 each of these instances, is that, for example, a deed con- 
 veying lands, or a sale of personal goods accompanied by 
 delivery from the incapable or defrauded person, transmits 
 to the other the seisin or ownership ;* but, while in all the 
 avoiding of the contract reinvests the seller with the prop- 
 erty if it has not passed into the hands of an innocent third 
 person, the effect as to such third person is otherwise in 
 cases of fraud ,^ yet essentially the same in infancy,^ and 
 insanity.' Again, — 
 
 § 160. Voidable Marriage. — In matrimonial law, a 
 voidable marriage has, while it remains voidable, the same 
 effect as a perfect one ; and it can be avoided only, during 
 the lives of both parties, by a judicial sentence, pronounced 
 in a suit instituted for the very purpose.^ But, — 
 
 § 161. Compared with "Voidable Contracts — (Katifica- 
 tion). — Most voidable contracts may, as we shall see in 
 subsequent chapters, be avoided by the mere will of the 
 parties entitled to avoid them. Yet there are some which 
 cannot. Especially in States where the English distinctions 
 between law and equity still prevail, there are some which 
 can be avoided only in an equity proceeding. Generally, a 
 voidable contract, imlike a void one, may be made good by 
 ratification ; ^ and probably all such contracts can be, when 
 the proper circumstances concur. But it is believed that 
 
 ' Post, ? 198. 
 
 ' Post, I 264, 272. 
 
 " Post, g 296. 
 
 ' Post, I 199, 264, 267. 
 
 5 Post, ? 199. 
 
 6 Post, I 277. 
 » Post, i 297. 
 
 » 1 Bishop Mar. & Div. ? 105. 
 
 s Matthews v. Baxter, Law Eep. 8 Ex. 132 ; Benedict ii. National Bank, 4 
 Daly, 171. 
 
 56 
 
VOID AND VOIDABLE. § 163 
 
 no voidable marriage — using the term voidable in the strict 
 sense of the matrimonial law^ — can be ratified, except per- 
 haps by judicial decree.^ 
 
 § 162. In General. — These are only illustrations of 
 many different sorts of voidable. But, as the attention of 
 the reader has now been directed to this class of distinc- 
 tions, and further illustrations will appear at various places 
 throughout this volume, the object of the chapter is accom- 
 plished. 
 
 § 163. The Doctrine of tins Chapter restated. 
 
 There is but one sort of void contract, as the term void is 
 properly employed ; though, improperly, the books some- 
 times speak of voidable contracts as void. Any contract 
 which has some legal effect, yet which one of the parties or 
 a third person is authorized in law to make void, is termed 
 voidable. But the effect of this contract, and the methods 
 of avoiding it, differ. There are, therefore, many sorts of 
 voidable, yet our language has no words distinguishing 
 them. 
 
 1 See 1 Bishop Mar. & Div. J 113 and note, 115. 
 
 57 
 
§ 167 LAW OF CONTEACTS. 
 
 CHAPTEK Xin. 
 
 FORMALITIES ATTENDING THE CEEATION OF THE CONTRACT. 
 
 § 164. Oral Contract. — Where the contract is oral, it, 
 of course, will not necessarily be attended by any formali- 
 ties ; and the proof of it will be guided by rules of evidence, 
 not for discussion here. 
 
 § 165. Written:^ — 
 
 What the Writing. — A writing, in law, need not be 
 made with the pen, though in most transactions it generally 
 is. If with a lead pencil, it is sufficient.^ And printed 
 matter, when employed as a writing, is equally good as if 
 done with a pen.* 
 
 § 166. The Signature. — Almost anything which the 
 parties mean for a signature is such in law ; as, if the 
 initials only of the name are written,* or if the name is 
 printed.* Nor need it be at the foot of the matter which it 
 attests.® Such is the strict law ; but, practically, the name 
 ought to be at the foot of the matter, written in full. 
 
 § 167. Whether Signature Necessary. — The statute of 
 frauds expressly requires the memorandum or contract, 
 
 ^ As to contracts under seal, see ante, § 14 et seq. 
 
 * Geary v. Physic, 7 D. & R. 653, 5 B. & C. 234 ; Reed v. Roark, 14 Texas, 
 829; McDowel v. Chambers, 1 Strob. Eq. 347; Lucas v. James,. 7 Hare, 410, 
 419. 
 
 3 2 Bishop Crim. Law, 6th ed. ? 525, 526. 
 
 * Palmer v. Stephens, 1 Denio, 471 ; Sanborn v. Plagler, 9 Allen, 474, 478. 
 
 ' 2 Bishop Crim. Law, ut sup. ; Commonwealth v. Ray, 3 Gray, 441 ; 
 Schneider v. Norris, 2 M. & S. 286. 
 
 * Knight V. Crockford, 1 Esp. 190 ; Lemayne v. Stanley, 8 Lev. 1 ; Saunder- 
 son V. Jackson, 2 B. & P. 238 ; Coddington v. Goddard, 16 Gray, 436, 444. 
 
 58 
 
FORMALITIES AT CKEATION. § 169 
 
 which is within it, to be signed by the party to be charged ; 
 but, in cases governed by the common law, or by a statute 
 silent as to the signing, a signature would not seem to be 
 universally necessary. There are numerous valid writings, 
 not signed, which may be the subjects of forgery.^ And it 
 would appear that among these may be contracts.^ Indeed, 
 it has been held that a writing orally assented to by the 
 parties may constitute a contract between them ;^ or, if one 
 signs and the other orally accepts it, both will be bound.* 
 
 § 168. Manner of Signing. — One signing a contract 
 commonly writes his name with his oAvn hand ; but, if 
 another writes it for him in his presence and at his request,* 
 or especially if he holds the top of the pen while the other 
 writes it,® or makes his mark to his name which the other 
 has written,' or if he acknowledges the signature, however 
 made, to be his own,^ this is sufficient, even in specialties. 
 
 § 169. Reading at the Signing. — One is always entitled 
 to read the instrument, or, if illiterate,^ have it read to hinj, 
 before signing. But, should he choose to waive this privi- 
 lege, his signature will bind him, even though he cannot 
 read.^" Still, if it is fraudulently read to him in terms dif- 
 
 1 2 Bishop Crim. Law, 6th ed. g 529 et seq. 
 
 " And see Selby v. Selby, 3 Meriv. 2 ; Marshall v. Hann, 2 Harrison, 425 ; 
 Grove v. Hodges, 5 Smith, Pa. 504 ; Paige v. Pullerton "Woolen Co., 27 Vt. 
 485; Stearns v. Haven, 16 Vt. 87; Pooley v. Driver, 5 Ch. D. 458, 468, 469. 
 
 3 Butch V. Mead, 36 N. Y. Superior, 427. 
 
 * Brandon Manuf. Co. v. Morse, 48 Vt. 322. 
 
 s Jansen v. McCahill, 22 Cal. 583 ; Frost v. Deering, 21 Maine, 156 ; Pierce 
 V. Hakes, 11 Harris, Pa. 231; Rex v. Longnor, 1 Nev. & M. 576; Bird ». 
 Decker, 64 Maine, 550. 
 
 " Helshaw v. Langley, 11 Law J. N. s. Ch. 17. 
 
 ' Baker v. Dening, 8 A. & E. 94; Zimmerman v. Sale, 3 Bich. 76. 
 
 8 Powell V. Blackett, 1 Esp. 97 ; Pequawkett Bridge v. Mathes, 7 N. H. 230 ; 
 McLityre v. Park, 11 Gray, 102 ; Rhode v. Louthain, 8 Blackf. 413 ; Hill v. 
 Scales, 7 Terg. 410 ; Speckels v. Sax, 1 B. D. Smith, 253 ; Hawkins v. Chaoe, 
 19 Pick. 502. 
 
 9 Manser's Case, 2 Co. 2 b. 
 
 '" Thorough good's Case, 2 Co. 9 a; Chapman v. Rose, 56 N. Y. 137; Rex v. 
 Longnor, 1 Nev. & M. 576 ; School Committee v. Kesler, 67 N. C. 443. 
 
 59 
 
§ 173 LAW OF CONTRACTS. 
 
 ferent from its real ones, or, not being read, its contents are 
 fraudulently misrepresented, and he cannot himself read or 
 is otherwise without laches, his signature will not bind him.^ 
 
 § 170. Intent in the Signing. — The signing must be 
 done T^fith intent to execute the instrument as a contract, 
 else it will not bind the parties.^ Hence, — 
 
 § 171. All the Signatures. — If by parol,' or, a fortiori, 
 if by the writing itself,* it is disclosed that the contract was 
 not to be deemed complete until other signatures should be 
 attached, it will not bifid those who have signed it. But, if 
 nothing of this sort appears, the parties signing will be 
 holden, though even on the face of it the signatures of still 
 others were contemplated by the draughtsman.^ 
 
 § 172. Delivery. — We have seen * that a specialty, to be 
 binding, must be delivered. It is the same with a promis- 
 sory note, or any other written contract.^ 
 
 § 173. Tlie Doctrine of this Chapter restated. 
 
 In the absence of a statutory direction, or other special 
 reason, a written contract may be good though it is not 
 formally signed. But the parties must in some way express 
 their consent to be bound by it, and there is no method 
 practically so conVenient and easily shown in evidence as by 
 
 1 lb. ; Sims v. Bice, 67 111. 88 ; Suffernn v. Butler, 3 0. E. Green, 220; Green 
 V. North Buffalo, 6 Smith, Pa. 110; post, § 192-196. 
 
 2 Grierson o. Mason, 60 N. Y. 394 ; Armstrong v. McGhee, Addison, 261 ; 
 Morrill v. Tehama Consolidated Mill, etc., Co., 10 Nev. 125 ; Bamaley v. 
 Leland, 6 Bob. N. T. 358. 
 
 3 Butler V. Smith, 35 Missis. 457. 
 
 * Waggeman v. Bracken, 52 111. 468 ; Sharp v. United States, 4 Watts. 21 
 (which compare with People v. Johr, 22 Mich. 461) ; Bean v. Parker, 17 Mass. 
 591, 605. 
 
 5 Haskins v. Lombard, 16 Maine, 140 ; "Webb v. Baird, 27 Ind. 368 ; Adams 
 o. Bean, 12 Mass. 137 ; Cutter v. "Whittemore, 10 Mass. 442 ; Hallett v. Collins, 
 10 How. U. S. 174 ; Scott v. Whipple, 5 Greenl. 336 ; Dillon v. Anderson, 43 
 St. Y. 231. 
 
 « Ante, 2 18. 
 
 ' Burson v. Huntington, 21 Mich. 416. 
 60 
 
FORMALITIES AT CREATION. § 173 
 
 signing, A mark, the recognition of the signature when 
 written by another, the writing of the mere initials of the 
 name, — with pen and ink, a pencil, printers' types, or 
 anything else which will leave a legible impression, — will 
 constitute a signing. If no fraud is practised, it will be 
 valid though not read ; but it must be delivered. In some 
 of the States there are statutes which require witnesses to a f 
 few special instruments ; but, where there is no such statute, 
 a witness adds nothing in legal effect. 
 
 61 
 
§ 177 LAW OF CONTRACTS. 
 
 CHAPTER XrV. 
 
 THE MUTUAL ASSENT. 
 
 § 174. Essential — What it is. — If one person consents 
 to a thing, and another to a thing in any degree different, 
 so that their wills do not completely coincide, this does not 
 create a contract between them. Each must consent to 
 exactly the same thing to which the other does, and at the 
 same instant of time.^ For illustration, — 
 
 § 175. Writing signed. — If the thing to be done is 
 written, and the parties sign the writing, both do thereby 
 consent to the same thing, at the same instant. Also, — 
 
 § 176. Proposition accepted. — If one makes to the 
 other an offer, whether verbally, by letter, or by telegraph, 
 and the offer is of a sort which implies nothing to be done 
 by the latter exce^jt to assent or decline, and he accepts it, 
 adding no qualification, here is a mutual consent to the 
 same thing and at the same time. A contract is, in these 
 circumstances, made.^ Again, — 
 
 § 177. Offer of Reward, etc. — If one offers a reward 
 for the doing of a particular thing, — as, for example, the 
 arrest of a person accused of crime, — and another does the 
 thing in a reasonable time, and while the offer is not with- 
 
 1 Dickinson v. Dodds, 2 Ch. D. 463, 472; Cooke v. Oxley, 3 T. E. 653; 
 Jordan v. Norton, 4 M. & W. 155 ; Allis v. Read, 46 N. Y. 142, 149 ; Hazard 
 V. New England Marine Ins. Co., 1 Sumner, 218. 
 
 2 Wells V. Milwaukee and St. Paul Railway, 30 Wis. 605; Abbott v. Shep- 
 ard, 48 N. H. 14 ; Hart v. Bray, 50 Ala. 446 ; Calhoun ». Atchison, 4 Bush, 
 261 ; Duble v. Batts, 38 Texas, 312. 
 
 62 
 
MUTUAL ASSENT. § 181 
 
 drawn, here the two minds assent to the same thing at the 
 same time, and the obligation to pay is complete. ^ But — 
 
 § 178. Offer not accepted. — A mere oflFer or promise, 
 not accepted, involves no concurrence of wills, and it can 
 never constitute a contract.^ Or, — 
 
 § 179. Imperfect Acceptance. — Though there is an 
 acceptance, if it is not to the exact thing offered, or if it is 
 accompanied by any conditions or reservations however 
 slight, in time or otherwise, no contract is made.' 
 
 § 180. Offer withdrawn. — Since an offer is not a con- 
 tract, the party making it may withdraw it at any time 
 before acceptance.* Even though it is in writing, and by 
 its terms is to stand open for a specified period, the result 
 is the same. With no money consideratiou,^ and no cor- 
 responding promise from the person to whom the offer is 
 made, the promise not to withdraw it has no binding force.^ 
 K a consideration for the promise to leave the offer open is 
 given and accepted, this constitutes of itself a contract, and 
 the offer cannot be withdrawn. 
 
 § 181. Methods of Withdrawal. — If the one who has 
 made the offer disposes, to another person, of the thing to 
 
 * Janvrin v. Exeter, 48 N. H. 83 ; Davis v. Munson, 43 Vt. 676 ; Thatcher v. 
 England, 3 C. B. 254 ; Loring v. Boston, 7 Met. 409, 411 ; Tamer v. Walker, 
 Law Bep. 2 Q. B. 801 ; England v. Davidson, 11 A. & E. 856 ; Shuey v. United 
 States, 92 U. S. 73. See fiabcock v. Eaymond, 2 Hilton, 61. 
 
 2 Bower v. Blessing, 8 S. & K. 243 ; Bieber v. Beck, 6 Barr, 198 ; McKinley 
 V. "Watkins, 18 111. 140; Esmay v. Gorton, 18 111. 483 ; Brown v. Rice, 29 Misao. 
 322 ; Tuttle v. Love, 7 Johns. 470 ; Demoss v. Noble, 6 Iowa, 580 ; Bruce v. 
 Pearson, 3 Johns. 534 ; Corning v. Colt, 5 Wend. 253 ; Peru v. French, 55 
 HI. 317. 
 
 ' Rommel v. Wingate, 103 Mass. 327 ; Barrow v. Ker, 10 La. An. 120 ; Bel- 
 fast, etc., Railway v. Unity, 62 Maine, 148 ; Crossley v. Maycock, Law Rep. 18 
 Eq. 180 ; Bruner v. Wheaton, 46 Misao. 363 ; Eliason v. Henshaw, 4 Wheat. 
 225 ; Carr v. Duval, 14 Pet. 77 ; Moxley v. Moxley, 2 Met. Ky. 309. 
 
 * Cooke V. Oxley, 3 T. E. 653. 
 
 s Cherry v. Smith, 3 Humph. 19. 
 
 ^ Eoutledge v. Grant, 3 Car. & P. 267, 4 Bing. 653 ; Dickinson v. Dodds, 2 
 Ch. D. 463 ; Cheney v. Cook, 7 Wis. 413. 
 
 63 
 
§ 184 LAW OP CONTRACTS. 
 
 which it relates, this is a withdrawal ; and he need not 
 expressly notify the other party. It is enough that the 
 latter knows the fact, and perhaps, even if he does not know 
 it, his acceptance during the time limited will be of no avail.^ 
 
 § 182. Reasonable Time. — Though a proposition is not 
 formally withdrawn, still it is not to be construed as open 
 forever. It is limited to a reasonable time. And wliat is a 
 reasonable time, it appears, will depend on the particular 
 case and its circumstances.'' 
 
 § 183. Overt Act of Acceptance. — A mere determina- 
 tion of the will to accept an offer does not constitute an 
 acceptance ; there must be words, written or spoken, or 
 some other overt act.* The doing of a thing pursuant to an 
 offer may be both an acceptance and performance.* 
 
 § 184. Tlie Doctrine of this Chapter restated. 
 
 The entire doctrine is embraced in the simi)le statement 
 that, to constitute a contract, the wills of the parties must, 
 together with the other elements, simultaneously concur ; 
 each meaning exactly what the other does, both in substance 
 and in form, and at the same moment. The other formali- 
 ties, however essential, cannot supply the place of this ele- 
 ment. Yet, undoubtedly, one who does not in fact concur 
 in his inner puriDose may so act as to be estopped to deny 
 that he does. If he employs oral words of contract j or 
 signs his name to written ones, under circumstances justly 
 to induce the belief that he assents, in the other party who 
 
 • Dickinson ». Dodds, 2 Ch. D. 463. 
 
 * Loring v. Boston, 7 Met. 409 ; Martin ». Black, 21 Ala. 721 ; Chicago and 
 Great Eastern Railway v. Dane, 43 N. Y. 240; Mactier t;. Frith, 6 Wend. 103; 
 McCurdy v. Roger, 21 Wis. 199. 
 
 « White V. Corlies, 46 N. Y. 467; Trevor v. Wood, 36 N. Y. 307; Hough- 
 wout V. Boisauhin, 3 C. E. Green, 315. 
 
 « Ante, I 177 ; Brusle v. Thomas, 7 La. An. 349 ; Woodworth ». Wilson, H 
 La. An. 402 ; Street v. Chapman, 29 Ind. 142. 
 64 
 
MUTUAL ASSENT. § 184 
 
 acts upon such belief, no mental reservation or undisclosed 
 purpose will prevent his being bound by his own words or 
 signature. But, while we carry this element of contract in 
 our minds, we should not forget the other elements, without 
 which this one, however perfect, will be of no avail. 
 
 65 
 
§ 187 LAW OF CONXEACT8. 
 
 CHAPTEK XV. 
 
 FRAUD, MISTAKE, AND DURESS. 
 
 J 185-189. General Principles and Introduction. 
 
 190-227. Fraud. 
 
 228-238. Mistake. 
 
 239-248. Duress. 
 
 249. Doctrine of the Chapter restated. 
 
 § 185. General Doctrine. — Though the mutual consent, 
 discussed in the last chapter, is given in form, it may not be 
 in fact; because prevented by fraud, mistake, or duress, — 
 three things similar in nature and consequences. The prin- 
 ciple is, — 
 
 § 186. On what Principle. — Since, to constitute a con- 
 tract, each of the parties must mean what the other does, 
 and what the words employed express, and their wills must 
 go with their act, as already explained ; if, in any case, the 
 will of one of them is enthralled by fraud or by duress 
 proceeding from the other, or from some third person 
 acting on behalf of the other, — or, even, if what is done 
 comes from an innocent mistake of facts, — so that the 
 outward act of contracting does not truly represent the 
 inward intent, there is no contract. The element of consent 
 is wanting. But this principle, as thus expressed in theo- 
 retical form, has its practical limitations ; namely, — 
 
 § 187. By wliat limited. — If good faith to an innocent 
 party, or some needful rule of trade, or some other public 
 interest would be violated by permitting one to rely on the 
 defence thus brought to view, he will be estopped^ from 
 setting it up. Again, — 
 
 ' Ante, 2 126 et seq. 
 66 
 
PKAUD MISTAKE DURESS. § 192 
 
 § 188, Batification. — Though the consent is thus insuf- 
 ficient at the time when the contract appears to be made, 
 still, tlie form being then gone through with, a party may 
 afterward, if he chooses, add to it the ratification of his will, 
 when the contract will therefore become complete.^ 
 
 § 189. Of tlie further Discussion — How divided. — 
 The foregoing sections embrace the whole doctrine of this 
 chapter. Yet, for practical purposes, some minuter views, 
 and views as to how the doctrine, is shaped by the courts, 
 are important. We shall consider, I. Fraud ; II. Mistake ; 
 III. Duress. 
 
 I. Fraud. 
 
 § 190. How defined. — Fraud, of the sort now imder 
 discussion, is some spoken or acted falsehood whereby one 
 is induced to believe that a contract which he is executing 
 is a different thing from what it is, or that there is for exe- 
 cuting it a motive which does not in truth exist. 
 
 §191. Two Objects. — We see, therefore, that the fraud 
 may have either one of two distinct objects ; namely, first, 
 to seduce its victim into signing, or otherwise formally 
 assenting to, written or spoken words of contract to which 
 he does not understand himself as assenting, and to which 
 he would not in fact assent ; or, secondly, to allure him 
 into an actual assent, which, but for the falsehood, he would 
 not arive. This distinction is sometimes ignored or muddled 
 in the books ; but, on the whole, it is sufficiently established 
 in authority, while it is ^bvious in principle. It is of the 
 utmost practical importance. 
 
 § 192. First. Luring to a Formal Contracting not 
 meant : — 
 
 Deceit as to Contents of Writing — If, as in cases already 
 mentioned,^ one is by fraud induced to execute a formal 
 
 1 Bishop Mar. & Div., ? 139-142, 214, 215^ ante, ? 161 ; post, ? 206. 
 
 Ante, §169. 
 
 d7 
 
§ 196 LAW OF CONTRACTS. 
 
 contract believing it to be something else, he is not in law 
 bound thereby.^ Or, — 
 
 § 193. Deceit in Sale of Goods. — If one bids at an 
 auction for goods, and they are not the goods which he 
 understands them to be, no contract for their purchase is 
 created, though in form he is declared the purchaser.* 
 And — 
 
 § 194. Void — (Innocent third Person). — Such a con- 
 , tract is not merely voidable, it is void.^ Not even innocent 
 third persons can take any benefit from it.* This rule is 
 absolute, and without exception. Thus, — 
 
 § 195. Negotiable Paper. — Though the law goes far to 
 protect the rights of innocent third persons in negotiable 
 paper which would be valueless as between the original 
 parties, yet bills and notes brought into existence by the 
 fraud now under consideration , and without laches in their 
 makers, are, like forged paper, void as well in the hands of 
 an innocent holder as of the original payee.® Negligence in 
 the maker, in putting his name to such paper, will, how- 
 ever, estop him from setting up this defence when sued by 
 a holder who is without fault.* 
 
 § 196. The Principle. — The reader perceives that, in 
 these cases, there is no consent to what is in form a con- 
 tract. Hence it can have no effect. Whether the words 
 are oral or written, under seal or not, they are not consented 
 
 ' Jones V. Austin, 17 Ark. 498 ; Byers v. Daugherty, 40 Ind. 198 ; Laidla v. 
 Loveless, 40 Ind. 211 ; Selden v. Myers, 20 How. U. S. 506. 
 
 » Phillips V. Bistolli, 2 B. & C. 511. 
 
 " Hunter v. Walters, Law Kepr 7 Ch. Ap. 75, 81 ; Stacy v. Ross, 27 Texas, 
 3 ; Rovegno v. Defferari, 40 Cal. 459.'«i»- 
 
 * Thoroughgood's Case, 2 Co. 9 o; Poster v. Mackinnon, La^Rep. 4 C.'P. 
 704. 
 
 ■i^' Kellogg V. Stein^r, 29 Wis. 626 ; "Whitney v. Snyder, 2 Lans. 477 ; Corby 
 V. Weddle, 67 Misso. 452 ; Munson v. Nichols, 62 111. Ill ; Butler v. .Cams, 87 
 "Wis. 61 ; Briggs v. Ewart, 51 Misso. 245 ; Woods v. Hynes, 1 Scam. 103. 
 
 ' Nebeker v. Cutsinger, 48 Ind. 436. And see Foster v. Mackinnon, Law 
 Bep. 4 C. P. 704 ; Spugin v. Traub, 65 III. 170. 
 68 
 
FRAUD MISTAKE DURESS. § 200 
 
 to by the party, and, as a contract, are as absolutely null as 
 if they never existed. But, — i 
 
 § 197. Secondly. Fraud in the Inducement to a real 
 Consent : — 
 
 The Common Case. — The common case is where the 
 party understands well enough what contract he is making, 
 yet is induced to make it by some falsehood addressed to 
 him as a motive. Here, the reason of the law being differ- 
 ent, the rule also is- different. Hence, — 
 
 § 198. Kot Void — 'Voidable. — Where the party makes 
 the contract he means to, being moved thereto by fraudulent 
 representations, rights vest under it. The other party, who 
 has perpetrated the fraud, cannot take them away. As to 
 him, the contract is perfect. The defrauded party, on dis- 
 covering the fraud, has his election, where the principles of 
 equity will permit its exercise, to reject the contract ; or, if 
 he will, he can confirm it. .Therefore it is not void. The 
 legal term for it is voidable.^ 
 
 § 199. Fraudulent Purcliase. — If a purchase of goods 
 is effected by this kind of fraud, the property in them 
 passes, the same as though the seller had not been imposed 
 upon.^ 
 
 § 200. Purchase from the Purchaser. — Then, should 
 a third person, not knowing of the fraud, and not being put 
 on his enquiry,^ buy them of the fraudulent purchaser for 
 an adequate, valuable consideration, he will hold them ; the 
 title having been, it is seen, in his vendor.* Yet, if the 
 
 1 Oakes v. Turquand, Law Rep. 2 H. L. 325, 346, 375, 376 ; .Pearsoll v. 
 Chapin, 8 Wright, Pa. 9 ; Benedict v. National Bank, 4 Baly, 171 ; post, ? 206. 
 
 2 Clough V. London and Northwestern Railway, Law Rep. 7 Ex. 26, 34. 
 The same of land. Somers v. Pumphrey, 24Ind. 231. 
 
 ' Cooper V. Newman, 45 N. H. 339. j. 
 
 * Jennings v. Gage, 13111. 610; Rowley d. Bigelow, 12 Pick. 307, 312; Hoff- 
 man V. Noble, 6 Met. 68 ; Sinclair v. Healy, 4 Wright, Pa. 417 ; Sharp v. Jones, 
 18 Ind. 314 ; Hutchinson v. Watkins, 17 Iowa, 475. The same rule applies to 
 
 69 
 
§ 203 LAW OF CONTRACTS. 
 
 third person, when making his purchase, has knowledge of 
 the fraud, ^ or if lie receives the goods in payment of a pre- 
 existing debt,* or otherwise without consideration,^ he stands 
 in no better position than thQ_ original purchaser. And it 
 is the same with one who attaches them as the first pur- 
 chaser's, on legal process against him.* Again, — 
 
 § 201. Negotiable Paper. — Contrary to the rule in the 
 other kind of fraud,* a bona fide holder of negotiable paper, 
 originally obtained by the fraud now under consideration, 
 may enforce payment against the maker. ^ 
 
 § 202. Between the Parties. — As between the parties, 
 the efiects of this kind of fraud are less unlike those of the 
 other, still they are different. Theoretically, when the de- 
 frauded party elects to avoid the contract, they become the 
 same ; but, in some circumstances, there is practically a dif- 
 ference. Thus, — 
 
 § 203. Rescission. — The avoiding of a voidable con- 
 tract is termed rescission. And the party who finds him- 
 self defrauded may — it is in general phrase correct to say — 
 rescind the contract if he chooses.^ But as the rights of 
 
 lands. Collins v. Heaths, 34 Ga. 443; Chouteau ». Jones, 11 HI. 300; Scarlett 
 V. Grorham, 28 111. 319 ; Bartlett v. Henry, 10 Johns. 185 ; Coleman v. Sattei^ 
 field, 2 Head, 259. See post, § 297. 
 
 • Crocker v. Crocker, 31 N. Y. 507 ; Shewmake v. Williams, 54 G-a. 206. 
 And see Justh v. National Bank of Commonwealth, 56 N. T. 478. 
 
 2 Root V. French, 13 Wend. 670 ; Wood v. Eobinson, 22 N. Y. 564. But see 
 Shufeldt V. Pease, 16 Wis. 659 ; Butters v. Haughwout, 42 HI. 18. 
 » Wade V. Saunders, 70 N. C. 270. 
 
 • Wiggin V. Day, 9 Gray, 97 ; Hoffman v. Strohecker, 7 Watts, 86. 
 6 Ante, 2 195. 
 
 • Davis V. West Saratoga Building Union, 32 Md. 285 ; Hamilton ». Vought, 
 5 Vroom, 187; Park Bank v. Watson, 42 N. Y. 490; Eiley v. Schawacker, 50 
 Ind. 592; Clark v. Thayer, 105 Mass. 216; Strough v. Gear, 48 Ind. 100; In 
 re Great Western Telegraph, 5 Bis. 363. 
 
 ' Dauchy v. Silliman, 2 Lans. 361 ; Gates v. Bliss, 43 Vt. 299; Hall -u. Pul- 
 lerton, 69 111. 448 ; Holbrook v. Burt, 22 Pick. 546 ; Poster v. Gressett, 29 Ala. 
 393 ; Cook v. Moore, 39 Texas, 255. 
 70 
 
FRAUD MISTAKE DURESS. § 204 
 
 innocent third persons, acquired for value, cannot be affected 
 thereby,^ if they have attached he is too late to rescind.* 
 Even to the defrauding party he must return, or offer to 
 return, whatever of any value to himself or the other he has 
 received iinder the contract? but not a thing absolutely 
 worthless and without possible benefit. This is termed 
 placing the parties in statu quo.^ To illustrate, — where 
 worthless lime was sold for good^ in casks, it was held that, 
 though the lime was of no importance, the casks must be 
 returned.* Moreover, — 
 
 § 204. Time of Rescission — Notice. — The language of 
 most of the cases is that the rescission must be prompt, or 
 within a reasonable time after the fraud is discovered ;° and, 
 sometimes it is added, with notice to the other party .^ 
 Doubtless, if anything is to be returned, it should be with 
 a statement of the reason ; but, in other circumstances, no 
 notice in advance of judicial proceedings is universally or 
 even generally required.' And in a late English case it was 
 
 » Ante, 2 200. 
 
 ' Oakes v. Turquand, Law Rep. 2 H. L. 325 ; ante, ? 200. So in other cases 
 where the parties cannot be placed in statu quo. Potter v. Titcomb, 22 Maine, 
 300. 
 
 3 Post, g 668; Lane v. Latimer, 41 Ga. 171 ; Sanborn v. Batchelder, 51 N. H. 
 426; Perley v. Balch, 23 Pick. 283 ; Thurston v. Blanchard, 22 Pick. 18, 20; 
 Beetem ». Burkholder, 19 Smith, Pa. 249; Underwood v. West, 52 111. 397; 
 Manahan v. Noyes, 52 N. H. 282. For an exception, see Clough v. London and 
 Northwestern Railway, Law Kep. 7 Ex. 26. 
 
 * Conner v. Henderson, 15 Mass. 319. 
 
 5 Manahan v. Noyes, 52 N. H. 232 ; Hall v. Pullerton, 69 HI. 448 ; Oakes v. 
 Turquand, Law Kep. 2 H. L. 325; Williams v. Ketchum, 21 Wis. 432; Pratt 
 V. Piske, 17 Cal. 380; Barfield v. Price, 40 Cal. 635 ; Shaw v. Barnhart, 17 Ind. 
 183 ; Fisher v. Wilson, 18 Ind. 133 ; Cook v. Gilraan, 34 N. H. 556 ; Desha v. 
 Robinson, 17 Ark. 228 ; Lawrence v. Dale, 3 Johns. Ch. 23 ; Gates v. Bliss, 43 
 Vt. 299 ; Bruce v. Davenport, 1 Abb. Ap. Dec. 233. But a party is allowed 
 time to enquire intp and ascertain his legal rights. Torrance v. Bolton, Law 
 Rep. 8 Ch. Ap. 118, 124. 
 
 6 Beetem v. Burkholder, 19 Smith, Pa. 249. 
 
 ' Clough o. London and Northwestern Railway, Law Rep. 7 Ex. 26, 35, 36 ; 
 Schofieldi). Holland, 37 Ind. 220; Landauer ». Cochran, 54 Ga. 633; Thurston 
 V. Blanchard, 22 Pick. 18. 
 
 71 
 
§ 208 LAW OF CONTRACTS. 
 
 deemed, that mere delay in rescinding the fraudulent con- 
 tract does not take away the right, being material only as 
 it furnishes evidence of an election to affirm.^ 
 
 § 205. Recover back. — One who thus rescinds a con- 
 tract may recover back whatever he has paid or delivered 
 under it, whether money or goods. ^ Again, — 
 
 § 206. How Ratify. — Though a defrauded party cannot 
 both rescind a contract and affirm it, he may, as we have 
 seen,^ elect between the two ; and, if he chooses, do the 
 latter. Any act by which, after knowledge of the fraud, 
 he treats the contract as subsisting, will be an affirmance. 
 There can be no rescission afterward.* The party in the 
 wrong cannot set up his own fraud ; ® the contract, there- 
 fore, is perfected. But, — 
 
 § 207. Other Remedies for the Fraud. — Though the 
 contract is thus affirmed, so that it cannot be declared void, 
 or though the right to rescind is defeated by intervening 
 rights of third persons, or because the parties could not be 
 put in statu quo, still the law has remedies for the fraud. 
 For example, — 
 
 § 208. Make the Representation good. — A court of 
 equity will, if the circumstances allow, compel the defraud- 
 ing party so to act that his representations shall be realized 
 by the other.* As, if partners persuade a third person to 
 become a member of their association, by representing that 
 a certain amount of stock, exceeding the truth, has been 
 
 ' Clough «. London and Northwestern Eailway, supra. 
 
 ' Thurston v. Blanchard, 22 Pick. 18 ; Stevens v. Austin, 1 Met. 557 ; Mann o. 
 Stowell, 3 Chand. 243; ante, J 38 ; post, § 515, and other places. 
 
 3 Ante, § 188, 198. 
 
 * Cobb V. Hatfield, 46 N. Y. 533; Jackson v. Jackson, 47 Ga. 99; Evans v. 
 Foreman, 60 Misso. 449; Dauchy »;. Silliman, 2 Lans. 361; Gray ». Fowler, 
 Law Rep. 8 Ex. 249 ; Higgs v. Smith, 3 A. K. Mar. 388 ; Moffat v. "Winslow, 
 7 Paige, 124. See post, I 656, 678. 
 
 5 Roberts u. Lund, 45 Vt. 82 ; Jones v. Hill, 9 Bush, 692 ; Fisher v. Saylor, 
 28 Smith, Pa. 84. 
 
 ^ Hammersley v. Baron de Biel, 12 CI. & F. 45. 
 
 72 
 
FRAUD MISTAKE DURESS. § 213 
 
 subscribed and paid in, the equity tribunal will see that they 
 personally make good the deficiency.^ Or — 
 
 § 209. Damages at Law. — The defrauded party may 
 recover of the other damages in the proper action at law.* 
 Or,— 
 
 § 210. Relief in Equity. — In proper circumstances, he 
 may have relief in equity, though the contract is not re- 
 scinded.^ Or, — 
 
 § 211. Reform. — In some cases, the court of equity 
 will reform the contract, leaving it to stand in its amended 
 condition.* Again, returning to the doctrine of rescis- 
 sion, — 
 
 § 212. Rescinding in Equity. — The court of equity will 
 in proper cases order the formal rescinding of the fraudulent 
 contract.^ And the plaintiff need not have offered, before 
 the bringing of the suit, to restore what had been received." 
 
 § 213. Defence at Law. — If one is sued at law, on a 
 contract, and the parties are or can be placed in statu quo 
 (and, it would seem from some of the cases, contrary to 
 sound principle and to other cases, even if they cannot), 
 and it has not been affirmed by the defendant, he may in 
 general rely on the fraud as a perfect defence.' In other 
 
 1 Moore's Case, Law Rep. 18 Eq. 661 ; Rawlins v. "Wickham, 3 De G. & J. 
 304. 
 
 2 "Ward V. Wiman, 17 Wend. 193; Coon v. Atwell, 46 N. H. 510; Newell v. 
 Horn, 45 N. H. 421. See Jackson v. Jackson, 47 Ga. 99. 
 
 ' Brizicko. Manners, 9 Mod. 284, 285; Holland v. Anderson, 38 Misso. 55; 
 Pringle v. Samuel, 1 Litt. 43 ; Moore «. Clay, 7 Ala. 742 ; Miner v. Medbury, 
 6 Wis. 295 ; Blacks v. Catlett, 3 Litt. 139 ; Stapler v. Hurt, 16 Ala. 799. 
 
 * EUinger v. Growl, 17 Md. 361 ; Scott ». Duncan, 1 Dev. Bql 407 ; Rider v. 
 Powell, 4 Abb. Ap. Dec. 63. 
 
 s Boyce v^ Grundy, 3 Pet. 210 ; Hough v. Richardson, 3 Story, 659 ; Fisher 
 V. Probart, 5 Hayw. 75; Johnson v. Pryor, 5 Hayw. 243; Oswald u. McGehee, 
 28 Missis. 340 ; Camp v. Camp, 2 Ala. 632 ; Greenlee u. Gaines, 13 Ala. 198 ; 
 Stark V. Henderson, 30 Ala. 488 ; HalL v. Perkins, 3 Wend. 626 ; Moreland v. 
 Atchison, 19 Texas, 303; Franklin v. Greene, 2 Allen, 519; Wray u. Wray, 
 32 Ind. 126. 
 
 " Martin v. Martin, 35 Ala. 560. 
 
 ' Wyman 0. Heald, 17 Maine, 329; Cullum v. Branch Bank, 4 Ala. 21; 
 
 73 
 
§ 215 liAW OF CONTEACT8. 
 
 circumstances, the fraud may be relied on in reduction of 
 damages.^ And the general doctrine is, that, in questions 
 of fraud, courts of equity and courts of law have concurrent 
 jurisdiction.^ But — 
 
 § 214. Except — Equity. — The jurisdictions of equity 
 and law, in fraud, are not in all respects concurrent. And 
 some frauds may be availed of in equity which cannot at 
 law. The authorities are not quite uniform as to where 
 the distinction runs.^ 
 
 § 215. What Fraud is sufficient: — 
 
 Inducement actually moviug. — Whatever falsehood 
 enters into a negotiation, the contract is not impaired there- 
 by unless, in fact, it produced the consent. The presump- 
 tion is that it did ; still, if the representation appears by , 
 the evidence to have been known by the other party to be 
 false, or otherwise not believed, or not acted upon, it is 
 without legal effect. To move a court, injury must attend 
 the fraud.* Again, — 
 
 Jeter V. Tucker, 1 S. 0. 245; Wilson v. Cromwell, 1 Oranch C. C. 214; Bay v. 
 Virgin, 12 111. 216; Winslow v. Bailey, 16 Maine, 319; Irving b. Thomas, 18 
 Maine, 418 ; Curtis u. Hall, 1 Southard, 361 ; Block v. Elliott, 1 Misso. 275 ; 
 Pemberton v. Staples, 6 Misso. 59. 
 
 1 Jackson v. Jackson, 47 Ga. 99 ; Brown v. North, 21 Misso. 528. 
 
 » Smith V. Mclver, 9 Wheat. 532 ; 1 Story Bq. Jur. J 184 ; Skrine v. Simmons, 
 11 Ga. 401 ; TumbuU v. Gadsden, 2 Strob. Bq. 14; Anderson v. Hill, 12 Sm. 
 &M. 679; Tomlin v. Cox, 4 Harrison, 76; Gilbert ». Burgott, 10 Johns. 457. 
 
 = Bogers v. Colt, 1 Zab. 704 ; Stryker v. Vanderbilt, 1 Dutcher, 482 ; Wood 
 V. Goodrich, 9 Yerg. 266 (which cases compare with ante, ^ 24); Higgs v. 
 Smith, 3 A. K. Mar. 338 ; McKnight v. Kellett, 9 Ga. 532 ; Willett v. Porman, 
 
 3 J. J. Mar. 292 ; Hazard u. Irwin, 18 Pick. 95 ; Burrows v. Alter, 7 Misso. 
 424 ; Met. Con. 27 ; Denton u. McKenzie, 1 Des. 289 ; Purguson v. Coleman, 5 
 Heisk. 378. 
 
 * Cunningham v. Shields, 4 Hayw. 44, 46 ; Casey v. Allen, 1 A. K. Mar. 465; 
 Meyer v. Tesser, 32 Ind. 294 ; Bailey ii. Smock, 61 Misso. 213 ; People v. Cook, 
 
 4 Selden, 67, 79 ; Castleman v. GrifiSn, 13 Wis. 535 ; Anderson «. Burnett, 5 
 How. Missis. 165; Ely v. Stewart, 2 Md. 408 ; Pollock Con. 480, and English 
 cases cited by him ; as Attwood v. Small, 6 CI. & P. 232, 395, 444 ; Smith v. Kay, 
 7 H. L. Cas. 750, 775, 776; Horsfall u. Thomas, 1 H. & C. 90, mentioned in 
 Smith V. Hughes, Law Eep. 6 Q. B. 597, 605 ; Williams's Case, Law Bep. 9 
 £q. 226, note ; Watson v. Charlemont, 12 Q. B. 856, 864 ; and some others. 
 
 74 
 
FRAUD MISTAKE DURESS. § 219 
 
 § 216. Relevant to Subject. — The misrepresentatious 
 must relate to the subject of the contract ; mdepeudent 
 ones, as to some disconnected thing, not being sufficient.^ 
 Also, — 
 
 § 217. False. — What is said must be false. And its 
 falsity, as viewed by the law, will depend, not on the mere 
 words employed, in their literal sense ; but on the eflFect 
 which, in their just interpretation, in connection with the 
 conduct of the defrauding party, and the circumstances, 
 they were adapted to produce on the mind addressed. The 
 literal truth may be a falsehood, because not the whole 
 truth ; in which case, and others of the like sort, it will be 
 sufficient on a charge of fraud.'' • Hence — 
 
 § 218. Concealment. — The concealment of a fact which 
 one ought, as a legal duty, to disclose, is in law a fraudulent 
 representation .^ 
 
 § 219. Continued — Lying in Trade. — The law, for the 
 purpose, it would seem, of sharpening people's wits,* tol- 
 erates a good deal of lying in trade, when in the nature of 
 merely puffing one's own goods or depreciating those of 
 another ; ^ provided the thing bargained about reveals its 
 own qualities, and is open to the parties' equal inspection.* 
 But if there is in a chattel,' or in the title to real es- 
 
 1 Ingram v. Jordan, 55 Ga. 356. See, also, Pollock Con.' 484-486. 
 
 2 Oakes v. Turquand, Law Kep. 2 H. L. 325, 342, 843 ; Mulligan v. Bailey, 28 
 Ga. 507; Denny v. Gilman, 26 Maine, 149 ; Buford v. Caldwell, 3 Misso. 477. 
 
 s Smith V. Mtna Life Ins. Co., 49 N. T. 211 ; Mitchell v. McDougall, 62 HI. 
 .498 ; Wintz v. Morrison, 17 Texas, 372 ; Belden v. Henriques, 8 Cal. 87 ; Grove 
 V. Hodges, 5 Smith, Pa. 504 ; Van Arsdale v. Howard, 5 Ala. 596 ; Barnett v. 
 Stanton, 2 Ala. 181 ; Truebody v. Jacobson, 2 Cal. 269^ Aortson v. Eidgway, 
 18 HI. 23 ; Junking v. Simpson, 14 Maine, 364 ; McAdams v. Cates, 24 Misso. 
 223 ; Trigg v. Bead, 5 Humph. 529 ; Dickenson v. Davis, 2 Leigh, 401. 
 
 * 1 Bishop Crim. Law, 6th ed. | 11. 
 
 6 Met. Con. 34; ante, g 97; Barlow v. "Wiley, 3 A. K. Mar. 457. 
 
 « Hill V. Bush, 19 Ark. 522 ; Bell v. Henderson, 6 How. Missis. 311 ; Arm- 
 strong V. Huffstutler, 19 Ala. 51. 
 
 ' Turner v. Huggins, 14 Ark. 21; Hanks v. McKee, 2 Litt. 227; Patterson 
 V. Kirkland, 34 Missis. 423; Bigler v. Plickinger, 5 Smith, Pa. 279. 
 
 75 
 
§ 220 LAW OF CONTRACTS. 
 
 tate,^ some defect not open to inspection, the seller should 
 disclose it to one who proposes to buy ; and, if to gain an 
 advantage he forbears to do this, the sale is voidable for the 
 fraud. And the same effect is produced by a fraudulent 
 representation concerning some specific fact, which could be 
 ascertained by examination or enquiry ; if it is positively 
 uttered, and the purchaser relies on it, and consequently 
 forbears to examine or enquire, the transaction becomes 
 voidable for the fraud.^ The distinction, in such a case, is 
 between positive lying and mere silence ; for, if a fact, or 
 the quality of a thing offered for sale, lies equally within the 
 power of the parties to ascertain, the law does not require 
 the seller to disclose what he knows, though he is informed, 
 and is aware that the other party is not. But often a single 
 positive word will carry the case across the line, and establish 
 fraud .^ One party is not even required to answer what the 
 other asks ; but, if he does, he must speak truly.* Again, — 
 § 220. Fact or Law — Opinion — Promise. — The mis- 
 representation must be of some fact ; what is falsely said of 
 the law not being sufficient, unless the parties are in confiden- 
 tial relations. Nor will a misstatement of the speaker's 
 mere opinion, or a mere false promise, render a sale or other 
 contract voidable.^ Yet, — 
 
 ' Bryant v. Boothe, 30 Ala. 311 ; Glasscock v. Minor, 11 Misso. 655 ; Hays 
 V. Bonner, 14 Texas, 629. See Wardu. Wiman, 17 Wend. 193; Moreland v. 
 Atchison, 19 Texas, 303. 
 
 ^ Venezuela Railway v. Kisch, Law Rep. 2 H. L. 99 ; Lord Ellenborough in 
 Vernon «. Keys, 12 East, 632, 637; Hazard v. Irwin, 18 Pick. 95; Pringle v. 
 Samuel, 1 Litt. 43; Holland o. Anderson, 38 Misso. 55; Newell u. Horn, 45 
 N. H. 421 ; Rosevelt v. Fulton, 2 Cow. 129 ; LitcMeld v. Hutchinson, 117 Mass. 
 195 ; Mead v. Bunn, 32 N. Y. 275. 
 
 » Laidlaw v. Organ, 2 Wheat. 178 ; Dillard v. Moore, 2 Eng. 166 ; Smith v. 
 Hughes, Law Rep. 6 Q. B. 597 ; Harris v. Tyson, 12 Harris, Pa. 347 ; Hobbs v. 
 Parker, 31 Maine, 143 ; Bell v. Byerson, 11 Iowa, 283. 
 
 * Blydenburh v. Welch, Bald. 331; Gartner v. Barnitz, 1 Teates, 307; 
 Kintzing v. McElrath, 5 Barr, 467 ; Butler's Appeal, 2 Casey, Pa. 63. 
 
 ' People V, San Francisco, 27 Cal. 655 ; Townsend n- Cowles, 31 Ala. 428 ; 
 Russell V. Branham, 8 Blackf. 277 ; Gatling v, Newell, 9 Ind. 672 ; Sims v. 
 76 
 
FRAUD — MISTAKE DURESS . § 2 23 
 
 § 221. Intent not to pay — Misrepresenting Ability — 
 Promise. — If a man buys goods intending not to pay for 
 them, his contract of purchase is fraudulent though he also 
 promises.^ So it is if he misrepresents his ability. But if 
 he merely promises, while he knows he cannot pay, there is 
 no legal fraud.* Still, — 
 
 § 222. Deceitful Promise. — There is a deceitful prom- 
 ise, not meant to be performed, which is deemed a fraud. ^ 
 
 §223. Intent — Knowledge of Falsity. — The fraud 
 which will vitiate a contract is of various sorts ; and, in 
 most of the instances arising, it is not one thing, but a 
 combination of things. And as the remedy is civil, not 
 criminal, it need not be such a false pretence as would 
 justify all indictment. Always, therefore, the consideration 
 is important, and it is often the controlling one, that the 
 party knew his representations to be false, if such was the 
 fact ; * but, on the other hand, if he did not care, or even if 
 he was innocently misinformed, there are many circum- 
 stances in which they will be adequate.* 
 
 Ferrill, 45 Ga. 585 ; Vernon v. Keys, 12 East, 632 ; Fenwick v. Grimes, 5 
 Cranch C. C. 439; Payne v. Smith, 20 Ga. 654; Hall v. Thompson, 1 Sm. & 
 M.443. ' 
 1 Dow V. Sanborn, 3 Allen, 181 ; "Wiggin v. Day, 9 Gray, 97 ; Hall v. Naylor, 
 
 6 Duer, 71; King v. Phillips, 8 Bosw. 60S; HoflFman ■». Strohecker, 7 Watts, 
 86 ; Mackinley v. McGregor, 8 Whart. 369. 
 
 ' Bellv. Ellis, 33Cal. 620; Buffingtont). Gerrish, 15 Mass. 156; Klopenstein 
 V. Mulcahy, 4 Nev. 296; Nichols v. Pinner, 18 N. Y. 295; Hennequin v. Nay- 
 lor, 24 N. Y. 139; Backentoss v. Speicher, 7 Casey, Pa. 324; Griffin v. Chubb, 
 
 7 Texas, 603; Powell v. Bradlee, 9 Gill & J. 220. 
 
 » Miller v. Howell, 1 Scam. 499 ; Dowd v. Tucker, 41 Conn. 197 ; Kinard 
 V. Hiers, 3 Kich. Eq. 423; Richardson v. Adams, 10 Yerg. 273; Parrar v. 
 Bridges, 3 Humph. 566. 
 
 * Hubbell V. Meigs, 50 N. Y. 480 ; "Wakeman v. Dalley, 51 N. Y. 27 ; Hall v. 
 Bradbury, 40 Conn. 32 ; Miller «. Mutual Benefit Ins. Co., 31 Iowa, 216 : Hopper 
 V. Sisk, 1 Ind. 176; Campbell v. Hillman, 15 B. Monr. 508; Ball w. Lively, 4 
 Dana, 369; McDonald v. Trafton, 15 Maine, 225; Stone v. Denny, 4 Met. 151. 
 
 * Stone V. Covell, 29 Mich. 359; Prenzel v. Miller, 37 Ind. 1 ; Elder v. Alli- 
 son, 45 Ga. 13 ; Smith v. Richards, 13 Pet. 26 ; Smith v. Babcock, 2 Woodb. 
 
 77 
 
§ 227 LAW OF CONTEACTS. 
 
 § 224. Quantum of the Fraud. — There is no rule as to 
 how much fraud will be required to avoid a contract. That 
 will d^end somewhat on the circumstances, but chiefly on 
 its efiect. Did the false representation, and not the valua- 
 ble consideration which actually passed, or any independent 
 circumstance, operate as the moving cause to the consent? 
 If so, the fraud is adequate.^ Hence, — 
 
 § 225 . Weak Mind. — If the mind of the person to whom 
 the fraud was addressed was weak, and especially if it ^as 
 verging toward insanity, or if he was drunk, that circum- 
 stance may render the fraud complete when otherwise it 
 would not be.* And — 
 
 § 226. Ignorant. — The like consideration applies when 
 the person is ignorant, either generally, or of the i^articular 
 subject.* Also — 
 
 § 227. Confidential '.Relations. — It is the same where 
 the parties are in confidential relations ; less of fraud will 
 be required than in other circumstances.* 
 
 & M. 246; Foster v. Kennedy, 38 Ala. 359; Terhune v. Deyer, 36 Ga. 648; 
 Harding J). Eandall, 15 Maine, 332 ; Bennett v. Judson, 21 N. Y. 238 ; Hubbard 
 V. Briggs, 31 N. Y. 518, 540 ; Bacon v. Bronson, 7 Johns. Ch. 194 ; D'onelson v. 
 Young, Meigs, 155 ; Graves v. Lebanon National Bank, 10 Bush, 23. 
 
 1 Duncan v. Hogue, 24 Missis. 671 ; Story v. Norwich, etc., Eailroad, 24 
 Conn. 94; Slidell v. Eightor, 3 La. An. 199; Peter v. Wright, 6 Ind. 183; 
 Central Bank v. Copeland, 18 Md. 305; Smith v. Eichards, 13 Pet. 26; Ehea 
 V. Yoder, Pr. Dec. 2d ed. 88; Shackelford v. Hendley, 1 A. K. Mar. 496. 
 
 2 Owings' Case, 1 Bland, 370; Dodds v. Wilson, 1 Tread. 448, 3 Brev. 389; 
 Somes V. Skinner, 16 Mass. 348, 358; Neely v. Anderson, 2 Strob. Eq. 262; 
 Cadwallader v. West, 48 Misso. 483 ; Cain v. Warford, 33 Md. 23 ; Callo- 
 way V. Witherspoon, 5 Ire. Eq. 128 ; Bifdsong v. Birdsong, 2 Head, 289. 
 
 s Keller v. Equitable Fire Ins. Co., 28 Ind. 170 ; Nevitt v. Bank of Port 
 Gibson, 1 Freeman, Missis. 438 ; Decker v. Hardin, 2 Southard, 579 ; Smith 
 ». Click, 4 Humph. 186 ; Turner v. Johnson, 2 Craneh C. C. 287. 
 
 * Ypsti V. Laughran, 49 Misso. 594 ; Harkness v. Frasa-, 12 Fla. 336 ; Shaeffer 
 V. Sleade, 7 Blackf. 178 ; Mullins v. McCandless, 4 Jones Eq. 425 ; Birdsong v. 
 Birdsong, 2 Head, 289 ; Whelan v. Whelan, 3 Cow. 537 ; Conant v. Jackson, 
 16 "Vt. 335 ; Kennedy v. Kennedy, 2 Ala. 571. 
 78 
 
FRAUD MISTAKE DURESS. § 234 
 
 II. Mistake. 
 
 § 228. The Principle A mistake avoids a contract on 
 
 much the same principle as fraud. If the parties do not 
 mean what they do ; or, if one of them does not, and the 
 circumstances are not such as to estop him to set up his 
 mistake against the other, who is innocent ; there is no 
 assent in fact to what in form is declared between them, 
 and they, or the one not in fault^^will not be held to the 
 undertaking. 
 
 § 229, Void or voidable. — Whether the contract is to 
 be deemed void or voidable must depend on principles 
 brought to view in our last sub-title, though the question 
 does not seem to admit of entirely the same classification. 
 Yet,— 
 
 § 230. In the Formal Execution. — Plainly, if, through 
 mistake as to the terms, or the thing contracted about, the 
 formal agreement is not binding because not what the party 
 meant, it is not merely voidable, but void, — the same rule 
 prevailing here as in fraud. ^ And, — 
 
 § 231. Want of Consideration. — If the mistake is such 
 that there is no consideration for the contract, it will be 
 void,^ like all other simple agreements without considera- 
 tion. But, — • ' 
 
 § 232. Voidable. — In other circumstances, the contract 
 will be voidable only, on principles discussed under the 
 head of fraud. Hence, — 
 
 § 233. Two Kinds. — There are two kinds of effect pro- 
 duced by mistake, the same as by fraud. ^ 
 
 § 234. In the Inducement.-^— Mistake in the inducement 
 to the contract is . inseparable in principle, and not distin- 
 
 ' Ante, 2 193, 194. 
 ' Eovegno v. Defferari, 40 Cal. 459. 
 
 ' And see the distinction stated by Earl, Com. in Pitcher v. Hennessey, 48 
 N. T. 416, 423. 
 
 79 
 
§ 236 LAW OP CONTRACTS. 
 
 guished io tlie books by any distinct line, from the honest 
 misapprehension mentioned under the head of fraud, con- 
 stituting a fraud in law.^ Thus, — 
 
 § 235. Counterfeit Money — Thing not existing. — An 
 illustration of it occurs where one passes counterfeit money 
 believing it to be good, which, though accepted, is not a 
 payment;^ or where, contrary to the belief of parties, a 
 thing contracted about does not exist, whereby the con- 
 trsjct has no binding force.* 
 
 § 236. Beform In Equity. — If the parties orally agree 
 to a thing, then reduce their agreement to writing, intend- 
 ing that the writing shall merely express this oral agree- 
 ment ; but, by some mistake of the draughtsman, or their 
 own misapprehension as to the effect of the words em- 
 ployed, or otherwise,' the writing, when executed, is found 
 not to contain or mean what both meant, yet still one insists 
 on standing upon its terms ; the other may have it reformed, 
 in a court of equity, to express their real agreement, or in 
 proper cases declared void. But, to come within this prin- 
 ciple, the mistake must generally be mutual, and it must 
 be clearly established by the proofs, which may be either 
 oral or written.* On other principles, the writing, where 
 
 1 Ante, ? 142 ; Phillips u. HoUister, 2 Coldw. 269 ; Cooper v. Phibbs, Law 
 Eep. 2 H. L. 149. 
 
 ' Met. Con. 31. 
 
 ' Marvin v. Bennett, 8 Paige, 312. 
 
 * Druiff V. Parker, Law Rep. 5 Eq. 131, 139 ; In re De La Touche, Law Eep. 
 10 Eq. 599 ; "White v. White, Law Eep. 15 Eq. 247 ; Huss v. Morris, 13 Smith, 
 Pa. 367 ; Shay v. Pettes, 35 111. 360 ; Lyman v. United States Ins. Co., 17 Johns. 
 373 ; Clayton v. Bussey, SO Ga. 946 ; Rogers v. Atkinson, 1 Kelly, 12 ; Greer v. 
 Caldwell, 14 Ga. 207 ; Scales v. Ashbrook, 1 Met. Ky. 358 ; Harrison v. .lameson, 
 3 J. J. Mar. 232 ; Eigsbee v. Trees, 21 Ind. 227 ; Lanier v. Wyman, 5 Eob. N. 
 Y. 147; Bvants v. Strode, 11 Ohio, 480; Hull v. Cunningham, 1 Munf. 330; 
 Argenbright v. Campbell, 3 Hen. & M. 144; Waterman v. Dutton, 6 Wis. 265; 
 Nevius V. Dunlap, 33 N. Y. 676 ; Proctor v. Thrall, 22 Vt. 262 ; Montville v. 
 Haughton, 7 Conn. 542 ; Garner v. Garner, 1 Des. 437 ; Lanning v. Carpen- 
 ter, 48 N. Y. 408 ; Schwear v. Haupt, 49 Misso. 226 ; Mead v. Westchester Fire 
 Ins. Co.,64 N. Y. 453. 
 
 80 
 
FRAUD MISTAKE DURESS. § 240 
 
 there is a mistake in the motive to it, may be reformed ; ^ 
 but there are various distinctions on this subject, obvious 
 in reason, and traceable in the books of equity. 
 
 § 237. How. — Tlie reformation is properly on an appli- 
 cation to the equity tribunal for the express purpose ; but 
 if, in any suit in equity, a contract is set up, the court 
 may reform it.^ And where, as in some of our States of 
 late, equitable claims and defences are maintainable in suits 
 at law, the court of law may in like manner reform the con- 
 tract collaterally.' But, — 
 
 § 238. Uncliangeable at Law. — In a court of law, under 
 the common-law rules, though it is always a question whether 
 or not a particular contract in writing has been so executed 
 as to bind the parties;* yet, if it has, not what they in- 
 tended, as explained by parol,' but its terms, as interpreted 
 by the court, will prevail ; nor can the writing be reformed, 
 though in some circumstances it may be shown to be void 
 for fraud, duress, or mistake.* There may, therefore, be 
 contracts, not so imperfect through mistake that the courts 
 of law will pronounce them void, which an equity tribunal 
 will reform ; while others, which would be reformed in 
 equity, will be void at law. 
 
 III. Duress. 
 
 § 239. How defined. — Duress is any unlawful, physical 
 force, applied or threatened to the person of the party, by 
 reason of which he, in form, consents to what he otherwise 
 would not. 
 
 § 240. Voidable. — If, therefore, one under duress agrees 
 
 ' Pitcher v. Hennessey, 48 N. Y. 415, 424. 
 
 ' Shelby v. Smith, 2 A. K. Mar. 504 ; Smith v. Allen, Saxton, 43. 
 
 " Pitcher v. Hennessey, 48 N. Y. 415 ; Var/Dusen v. Parley, 40 Iowa, 70. 
 
 * Ante, 2 170-172; 1 Greenl. Ev. g 284. 
 
 5 Ante, g 24, 58, 213 ; Shankland v. Washington, 5 Pet. 390, 394 j Caldwell 
 V. May, 1 Stew. 425; Sanford o. Howard, 29 Ala. 684; Griswold u. Scott, 13 
 Ga. 210 ; Fits v. Brown, 20 N. H. 393. 
 
 6 81 
 
§ 243 LAW OF CONTBACTS. 
 
 to a thing, whether verbally or in writing, the consent is 
 imperfect, and the contract is voidable as already explained.^ 
 It is not void.^ Yet, — 
 
 § 241 . Void. — If he should not really agree to the thing, 
 but sign a writing or employ oral words expressing agree- 
 ment, because compelled through duress, this would not be 
 voidable. It would be void. 
 
 § 242. Unlawful — (Judicial Process). — If one is ar- 
 rested, imprisoned, or threatened by judicial process, not 
 abused but fairly conducted without malice, this is not 
 duress ; and any agreement, otherwise lawful, made to free 
 himself from this, or for any other purpose, is good.^ But 
 an abuse of process, — as where, for example, it is malicious 
 and without probable cause, or where a lawful imprison- 
 ment is carried to an unlawful degree, or, it appears, any 
 other abuse of a sort /which the law recognizes,* — will be 
 deemed duress, vitiating a contract entered into under its 
 influence.* A fortiori this is so when the process is void.* 
 
 § 243 . Other Forms of Duress. — Any unlawful imprison- 
 ment, actual or threatened, is duress.* Such likewise is 
 any threat of bodily harm, reasonably calculated to move 
 the fears.' 
 
 1 Ante, I 198-201. 
 
 " "Whelpdale's Case, 5 Co. 119 a; Veach v. Thompson, 15 Iowa, 380 ; Clark v. 
 Pease, 41 N. H. 414. See Loomis v. Kuck, 56 N. Y. 402. 
 
 » "Waterman v. Barratt, 4 Harping, Del. 311 ; Bates v. Butler, 46 Maine, 387; 
 Holmes u. Hill, 19 Misso. 159 ; Kelley v. Noyes, 43 N. H. 209 ; Eddy ». Herrin, 
 17 Maine, 338 ; Wilcox v. Howland, 23 Pick. 167 ; Taylor ». Cottrell, 16 HI. 
 93; Soule «. Bonney, 37 Maine, 128; Stebbins v. Niles, 25 MisMs. 267; Nealley 
 I). Greenough, 5 Post. N. H. 325; Knapp v. Hyde, 60 Barb. 80; Kelsey v. 
 Hobby, 16 Pet. 269; Smith ». Atwood, 14 Ga. 402. 
 
 ♦ Osbom V. Bobbins, 36 N. Y. 365 ; Shaw v. Spooner, 9 N. H. 197 ; Meadows 
 ». Smith, 7 Ire. Eq. 7 ; Breck v. Blanchard, 2 Post. N. H. 303 ; Stouffer ». Lat- 
 Bhaw, 2"Watts, 165, 167 ; Whitefleld ii. Longfellow, 13 Maine, 146 ; Pay d. Oatley, 
 6 "Wis. 42 ; Gumming v. Ince, 11 Q. B. 112 ; Phelps v. Zuschlag, 34 Texas, 371. 
 
 5 Alexander v. Pierce, 10 N. H. 494. 
 
 « Whitefleld «. Longfellow, 13 Maine, 146 ; Bowker v. Lowell, 49 Maine, 429. 
 
 ' Baker v. Morton, 12 Wal. 150; Burr «. Burton, 18 Ark. 214; Bosley v. 
 Shanner, 26 Ark. 280; Miller v. Miller, 18 Smith, Pa. 486. 
 82 
 
FRAUD MISTAICE DURESS. § 247 
 
 § 244. To tlie Person. — The duress must be to the per- 
 son ; and to that of the party, not of another.^ Also, — 
 
 § 245. One's Goods. — It is a general rule that duress of 
 one's goods will not suffice.^ Plainly, therefore, — 
 
 § 246. Law Suit. — The threat of levying an execution, 
 or of a law suit affecting goods,' even though the party is in 
 need, and the opposing party is the government,* will not 
 constitute duress. Still — 
 
 § 247. Further as to Law Suits and Goods. — There 
 are circumstances, not easily arranged and condensed to a 
 rule, and on which the courts are not quite harmonious, 
 wherein the unlawful detention of personal property, or the 
 threat to take it unlawfully, even though under the forms 
 of law, will authorize at least the recovering back of what 
 is paid or given to gain or regain the possession ; ^ or, as a 
 necessary legal consequence, avoid a contract for such pay- 
 ment;® or, in cases of special hardship, operate as general 
 duress, like an unlawful arrest of the person.' Of course, 
 a payment to get control again of goods lawfully attached 
 on a just demand cannot be recovered back.* 
 
 1 Eobinson v. Gould, 11 Cush. 55, 57 ; McClintick v. Cummins, 3 McLean, 
 158; Spaulding v. Crawford, 27 Texas, 155. 
 
 2 Skeate v. Beale, 11 A. & E. 983, 990 ; Lehman v. Shackleford, 50 Ala. 437 ; 
 Bingham v. Sessons, 6 Sm. & M. 13 ; Hazelrigg ti. Donaldson, 2 Met. Ey. 445. 
 
 ' Mayhew v. Phcenix Ins. Co., 23 Mich. 105 ; Miller v. Miller, 18 Smith, Pa. 
 486; Wells v. Harnett, 7 Texas, 584; Wilcox v. Howland, 23 Pick. 167. 
 
 * United States v. Child, 12 Wal. 232, 243. 
 
 6 Mariposa Co. v. Bowman, Deady, 228 ; Hendy v. Soule, Deady, 400 ; Sartr 
 well u. Horton, 28 Vt. 370 ; Ogden v. Maxwell, 3 Blatch. 319 ; People ». 
 Vischer, 9 Cal. 365 ; Maxwell v. Griswold, 10 How. U. S. 242 ; Harmony v. 
 Bingham, 2 Kernan, 99 ; Beckwith v. Frisbie, 32 Vt. 559 ; Harvey v. Olney, 42 
 111. 336 ; Laterade v. Kaiser, 15 La. An. 296 ; Dakota v. Parker, 7 Minn. 267 ; 
 Chase v. Dwinal, 7 Greenl. 134; Quinnett v. Washington, 10 Misso. 53. 
 
 8 Bennett v. Pord, 47 Ind. 264 ; Crawford v. Cato, 22 Ga. 594. 
 
 ' Collins V. Westbury, 2 Bay, 211 ; Sasportas v. Jennings, 1 Bay, 470. See 
 Williams v. Phelps, 16 Wis. 80. 
 
 8 Kohler v. Wells, 26 Cal. 606. And see McMillan v. Vischer, 14 Cal. 232 f 
 Dickerman v. Lord, 21 Iowa, 338. 
 
 83 
 
§ 249 LAW OP CONTRACTS. 
 
 §248. Remedies — Consequences. — The remedies in 
 duress are like those in fraud. So are the consequences. 
 
 § 249. The Doctrines of this Chapter restated. 
 
 The discussions of this chapter pertain only to voluntary 
 contracts, as distinguished from those which the law creates. 
 Where, as in ordinary circumstances, it is the policy of the 
 law to leave the parties to make a contract or not as they 
 will , — the ' ' will ' ' of each of them must accompany the act,, 
 or there is no contract. And, except in cases governed hy 
 the rules of estoppel, any form of contract is a mere void 
 thing, and not voidable, where the will of either party is 
 lacking. If both wills consent in fact, yet the will of one 
 of them is lured into the consent by fraud, or conducted to 
 it through mistake, or compelled by duress, then, the will of 
 the other having freely accepted the contract, this one, on 
 his will becoming likewise free, may accept or reject it 
 as he pleases. The other has no election, for his original 
 choice was free and voluntary. Hence this contract, which 
 is good or not as one of the parties may determine, is 
 called voidable. 
 
 In the application of these principles, as of any others, the 
 courts look also at such other principles of the law as con- 
 cern the particular question. If, for example, two persons 
 who know all the facts which concern their interests meet ; 
 and one of them tells the other, who believes the tale, that, 
 having walked three times around the latter' s cornfield 
 blowing a fish-horn, the law gives him in compensation 
 three-fourths of the corn ; whereupon a bargain is in due 
 form made that the former shall have of the latter the whole 
 crop for a price estimated at one-fourth its value, such bargain 
 is good. And the reason is, because, of necessity, the law is 
 always administered on the basis that every man knows 
 its provisions ; so that, though the owner of the corn was 
 84 
 
FRAUD MISTAKE DURESS. § 249 
 
 in fact defrauded, there was no fraud in law. The other 
 paid him his own price, and the law binds him to a bargain 
 which, as legally viewed, was fair. But if the cheat had 
 been accomplished by some falsehood as to a fact — as, for 
 example, if the law really were that the blowing of the fish- 
 horn would entitle the one blowing it to the corn, yet the 
 pretence that this one had blown it were false — the con- 
 clusion would have been the other way ; because, while the 
 law presumes itself to be known to every man, it has no 
 such presumption as to a fact. Truly, therefore, the law of 
 this chapter is such, and such only, as judicial determinations 
 have wrought out, by comparing the simple proposition that 
 people make contracts or not as they choose, with the other 
 established principles of our jurisprudence. 
 
 85 
 
§ 253 LAW OF COMTEACTS. 
 
 CHAPTEE XVI. 
 
 THE PARTIES EEQUIBED. 
 
 § 250. Contracting with Self. — One cannot contract 
 with himself.^ Even — 
 
 § 251. Different Capacities. — A man in a fiduciary 
 relation — as, for example, a trustee, or an agent to sell or 
 to buy, or the agent of such an agent, or of such other 
 person — cannot, in this capacity, buy of or sell to, or other- 
 wise deal with, himself in his individual capacity.^ Again, — 
 
 § 252. Sue Self. — One cannot sue himself.^ There- 
 fore, — 
 
 § 253. Self and Another. — If there are more parties 
 than one, he cannot in a common-law court be a plaintiff or 
 defendant on the one side, against himself and another on 
 the other side ;* nor is the rule different though on the one 
 
 1 Ante, 2 7. 
 
 ' Bain v. Brown, 56 N.T. 285, 288 ; Button v. "Willner, 52 N. Y. 312; Rogers 
 V. Lockett, 28 Ark. 290; Eingo v. Binns, 10 Pet. 269; Whitcomb v. Minchin, 
 5 Madd. 91 ; Bent v. Cobb, 9 &ray, 397 ; Mifchoud v. Girod, 4 How. U. S. 503 
 De Caters v. Le Ray de Chaumont, 8 Paige, 178 ; Child v. Brace, 4 Paige, 309 
 Griffin V. Marine Co., 52 111. 180; Campbell o. Johnston, 1 Sandf. Ch. 148 
 Boyd V. Hawkins, 2 Ire. Eq. 304 ; Mathews v. Dragaud, 8 Des. 25 ; Thorp v. 
 McCulIum, 1 Gilman, 614 ; Cram v. Mitchell, 1 Sandf. Ch. 251 ; Davis v. Simp- 
 son, 5 Har. & J. 147 ; Saltmarsh «. Beene, 4 Port. 283 ; Renew v. Butler, 30 
 Ga. 954; Rpmick v. Butterfleld, 11 Fost. N. H. 70; Rickey v. Hillman, 2 Halst. 
 180 ; Wright v. "Wright, 2 Halst. 175 ; Sheldon v. Sheldon, 13 Johns. 220 ; Obert 
 0. Hammel, 3 Harrison, 73; Bank of Orleans v. Torrey, 7 Hill, N. T. 260; 
 Colden v. Walsh, 14 Johns. 407 ; McCarty v. Van Dalfsen, 5 Johns. 43 ; Tynes 
 V. Grimstead, 1 Tenn. Ch. 608. And see Armor v, Cochrane , 16 Smith, Pa. 
 308. 
 
 5 Ante, g 7; Koagv. Hoag, 55 N. H. 172. 
 
 • McMahon v. Rauhr, 47 N. T. 67 ; Moffatt v. Van MuUingen, 2 Chit. 539. 
 86 
 
PARTIES REQUIRED. § 258 
 
 side he appears in a fiduciary capacity, and on the other 
 side individually.^ Consequently, — 
 
 § 254. More than One. — More parties than one are 
 essential to every contract. 
 
 § 255. Death. — One, after he is dead, has no power of 
 contract.' For example, a deed to him conveys nothing.^ 
 But, — 
 
 § 256. Funeral Expenses. — Since his body must not lie 
 unburied, if the burial and other fiyieral arrangements are 
 not made by the executor, any friend may order them, 
 according to the station in life and means of the deceased ; 
 then, should the executor come into possession of assets, 
 the law will raise a promise from him, not from the dead 
 man, to pay for them.* A. post mortem examination is not 
 a funeral expense, and not within this rule.^ 
 
 § 257. Capacity of Parties. — The parties must have the 
 legal capacity, not only to enter into the contract, as will 
 be explained in chapters following this, but likewise to do 
 that for which the contract provides.® Thus, — 
 
 § 258. To take. — A valid conveyance of a thing, or 
 bequest or devise of it,' can be made only to one capa- 
 
 1 McElhanon v. McBlhanon, 63 HI. 457. 
 
 ' Bank of Port Gibson v. Baugh, 9 Sm. & M. 290. There are readers -who 
 deem it absurd and puerile for an author to lay down a proposition so simple 
 and obvious. But the more simple and obvious a proposition is, the more apt 
 are some to overlook it. I remember a very good lawyer who advised a widow 
 client, whose husband had once been a partner with persons still living, that 
 she must get them to advertise the dissolution of the firm, to save the deceased 
 or herself harmless from future debts of their contracting! Nor would he be 
 convinced of this error ; he persevered in it and still insisted, till the thing, for 
 the sake of peace, had to be done — and it was done ! 
 
 3 Hunter v. Watson, 12 Cal. 363. 
 
 * Tugwell v. Heyman, 3 Camp. 298 ; Shelly's Case, 1 Salk. 296 ; Rodgers v. 
 Price, 3 Y. & J. 28 ; Green v. Salmon, 8 A. & B. 348 ; Brice v. Wilson, 3 Nev. 
 & M. 512. See Newcombe v. Beloe, Law Kep. 1 P. & M. 814. 
 
 6 Smith V. McLaughlin, 77 111. 596. , 
 
 ' Musselman v. Cravens, 47 Ind. 1. 
 
 I Meade v. Beale, Taney, 839, 369. 
 
 87 
 
§ 259 LAW OF CONTRACTS. 
 
 ble in law of being invested with it, and in the particular 
 form.^ 
 
 § 259. The Doctrine of this Chapter restated. 
 
 One cannot make a contract with himself alone ; two, at 
 least, are required, and there may be more. It will be valid 
 in law only when the parties are, in law, competent to make 
 it. Whatever their capability in fact may be, they must 
 have legal capacity. They must, at the same time, have 
 capability in fact ; because this is a main element in legal 
 capacity. Indeed, it would be the only element were it not 
 for some technical rules, necessary for the orderly working ~ 
 of the legal system ; such, for example, as that the capa- 
 bility of children shall be conclusively presumed to be in- 
 complete until the full age of twenty-one years is attained. 
 
 1 Holden v. Smallbrooke, Vaugh. 187, 199; "Winslow v. Winslow, 52 Ind. 8; 
 Methodist Episcopal Church v. Hoboken, 4 Vroom, 13 ; The State v. Killian, 
 61 Misso. 80. 
 88 
 
INFANTS. § 263 
 
 CHAPTER XVII. 
 
 INFANTS. 
 
 § 260. "Who are. — All persons, male and female, under 
 the age of twenty-one years, are, by the common law, 
 mfants. And such is the law in our States generally ; but, 
 in a few of them, females are by statute made of age at 
 eighteen.^ 
 
 § 261. How the Age computed. — In the computation, 
 fractions of a day are disregarded, and one day is allowed 
 to the infant ; so that a child born during any part of the 
 twenty-four hours of the first of January, counting from 
 midnight, will be of age during the whole of the last day 
 of December, from midnight.^ 
 
 § 262. Incapable of Perfect Contract. — An infant has 
 no complete capacity of contract. The authorities on this 
 subject are in a degree both indistinct and discordant ; yet 
 the following propositions harmonize with the general cur- 
 rent, and may be deemed on the whole to be sound, at least 
 in principle. 
 
 § 263. Capacity to receive and hold. — An infant may 
 receive and hold property, real and personal, the same as 
 
 1 1 Parsons Con. 294; and the cases cited to the next section. 
 
 ' Co. Lit. 171 b; Bac. Ahr. Infancy, A. ; Howard's Case, 2 Salk. 625; Fitz- 
 hugh o. Bennington, 2 Ld. Eaym. 1094, 1096; Anonymous, 1 Ld. Raym. 
 480 ; Hehert v. Turhatt, 1 Keb. 589 ; 2 Kent Com. 233 ; "Wells v. Wells, 6 Ind. 
 447 ; Hamlin v. Stevenson, 4 Dana, 597,- The State v. Clarke, 3 Harring. 
 Del. 557. See post, g 749. 
 
§ 266 LAW OP CONTRACTS. 
 
 an adult ;^ except, perhaps, in cases where it is attended 
 with a burden which may prove prejudicial.^ 
 
 § 264. Convey. — He may convey away his reaP and per- 
 sonal * property, by deed or other suitable form of transfer, 
 if delivery of the property accompanies the act ; ® and the 
 ownership will vest in the transferee, except that, always as 
 to real estate, and in most circumstances as to personal, he 
 may afterward avoid the conveyance. 
 
 § 265. Executory Promise in Fact. — ^Whatever execu- 
 tory undertaking an infant may assume, and though the 
 consideration for it has been paid to him, and he has neither 
 returned nor offered to return it,* he will not be compelled 
 to perform such promise.^ But — 
 
 § 266'. Promise in Law — (Ifecessaries). — The law may 
 create a jDromise by an infant, as well as by an adult ; and, 
 when it does, — for example, when necessaries are supplied 
 him , — he may be sued on this promise . Still , as the pro mise 
 comes from the law, and not from his volition, the sum to 
 be recovered will be the value of the necessaries, not what 
 he agreed to pay for them.* Again, — 
 
 1 Crymes v. Day, 1 Bailey, 320 ; Tate v. Tate, 1 Dev. & Bat. Eq. 22 ; Hears v. 
 Bickford, 55 Maine, 528; Spencer v. Carr, 45 N. Y. 406, 410; De Levillain o. 
 Evans, 39 Cal. 120; Knotts v. Stearns, 91 U. S. 638; McClosky v. Cyphert, 3 
 Casey, Pa. 220; Taylor v. Mechanics' Savings Bank, 97 Mass. 340. ^ 
 
 ' Skinner v. Maxwell, 66 N. C. 45. 
 
 ' Irvine v. Irvine, 9 Wal. 617 ; Spencer v. Caxr, 45 N. Y. 406 ; Zouch i). Par- 
 sons, 3 Bur. 1794, 1 W. Bl. 575 ; 2 Kent Com. 236. 
 
 * Baker v. Lovett, 6 Mass. 78 ; Fonda v. Van Home, 15 Wend. 631. 
 6 Stafford v. Roof, 9 Cow. 626. ■ 
 
 ' Craighead v. "Wells, 21 Misso. 404. 
 
 ' This, being a negative proposition, is consequently not provable aflSrma- 
 tively by the cases; but, I believe, there is no sufScient authority against it. 
 And see Met. Con. 42, 43 ; 1 Chit. Con. 11th Am. ed. 194 ; Ware v. Cartledge, 24 
 Ala. 622; Hunt v. Peake, 5 Cow. 475; Wilt v. Welsh, 6 Watts, 9; Westi). 
 Gregg, 1 Grant, Pa. 53; Handy v. Brown, 1 Cranch C. C. 610; Clark v. God- 
 dard, 39 Ala. 164 ; Vinsen v. Lockard, 7 Bush, 458 : Story v. Pery, 4 Car. & 
 P. 526 ; McCoy v. Huffman, 8 Cow. 84 ; Dilk v. Keighley, 2 Esp. 480. 
 
 * Ante, 2 86, 91. The judges sometimes speak of this contract as an express 
 one, but obviously it is not. And see Stone v. Dennison, 13 Pick. 1 ; Earle v. 
 
 90 
 
INFANTS. § 269 
 
 § 267. Executed — (Kesclsslon ^). — When the contract 
 has been executed, difficulties as to its rescission arise, and 
 the rule of law is somewhat obscure, and not quite uniform. 
 If the parties can be placed in statu quo,^ the infant may 
 return what he received, and take back what he parted 
 with ; and, since he is liable like an adult for fraud and 
 other similar wrongs,^ he cannot, of fraud, have again the 
 one, without restoring the other.* Within this principle, if 
 money or other thing is paid him, he cannot recover it over 
 again after becoming of age.* The mere repudiating of his 
 agreement is not deemed a legal fraud ; * and, if he has con- 
 sumed the consideration of his deed, his inability to restore 
 it will not prevent a disaffirmance.' 
 
 § 268. Contracts not beneficial — (Void). — Any con- 
 tract of an infant which, the court can see, cannot in any j 
 event be beneficial to him, is in law absolutely void : ® as,- 
 
 § 269 . Unequal. — Of this sort is a one-sided agreement, 
 by which the infant is to work a certain time for wages, yet 
 the master may stop the work at pleasure, and retain the 
 wages during the stoppage ; ' or, — 
 
 Keed, 10 Met. 387; Hyer v. Hyatt, 3 Cranch C. C. 276; Commonwealth ». 
 Hantz, 2 Pa. 333; Bouchell v. Clary, 3 Brev. 194; Fairmount, etc., Passenger 
 Railway v. Stutler, 4 Smith, Pa. 375 ; Gay v. Ballou, 4 Wend. 403 ; Hyman 
 V. Cain, 3 Jones, N. C. Ill ; Kobinson v. Weeks, 66 Maine, 102. 
 
 * And see post, ^ 275. 
 ' See ante, J 203. 
 
 s Shaw V. Cuffin, 58 Maine, 254 ; School District v. Bragdon, 3 Fost. N. H. 
 607 ; Oliver v. McClellan, 21 Ala. 675 ; 2 Kent Com. 241. 
 
 * Kerr v. Bell, 44 Misso. 120; Bryant u. Pottinger, 6 Bush, 473; Williamj 
 V. Brown, 34 Maine, 594 ; Smith v. Evans, 5 Humph. 70 ; Heath v. West, 8 
 Fost. N. H. 101 ; Riley v. Mallory, 33 Conn. 201. 
 
 5 Holmes v. Blogg, 2 Moore, 552; Parker v. Elder, 11 Humph. 646; Ta£l«. 
 Pike, 14 Vt. 405. See Riley v. Mallory, supra. 
 
 6 Burns v. Hill, 19 Ga. 22. 
 
 ' Green v. Green, 7 Hun. 492; Chandler v. Simmons, 97 Mass. 508, 514; 
 Bartlett v. Drake, 100 Mass. 174, 177 ; Manning v. Johnson, 26 Ala. 446. 
 " Robinson v. Weeks, 56 Maine, 102. 
 « Reg. V. Lord, 12 Q. B. 757. 
 
 91 
 
§ 272 LAW OF CONTRACTS. 
 
 § 270. Suretyship. — A contract as surety for another ;^ 
 or,— 
 
 § 271. Obligation with Penalty. — An obligation with a 
 penalty.' But — 
 
 § 272. Beneficial — (Voidable). — Most contracts are 
 such as, on their face, may be beneficial to the infant ; and 
 these, and all of which it cannot be said whether they will 
 be or not, are not void but voidable.* It is immaterial 
 whether they are in form promissory notes,* or other nego- 
 tiable paper, or an exchange^ or sale^ of property, or an 
 agreement to marry,' or to go as a mariner on a whaling 
 
 1 Maples V. "Wightman, 4 Conn. 876. In Fetrow v. "Wiseman, 40 Ind. 148, 
 an infant's contract of suretyship was held to be voidable only, and therefore 
 capable of ratification on his coming of age. The learned judge who delivered 
 the opinion admitted that it had been adjudged void in various cases, on the 
 ground that it could not be beneficial to the infant. But he deemed the dis- 
 tmction between contracts beneficial and not beneficial to be overturned by 
 the "modern doctrine," which, he said, "may be regarded as settled, that all 
 contracts of an infant, not in themselves illegal, or appointing an agent, are 
 voidable only." Now, if there is a modern doctrine which has discarded this 
 distinction, I submit that it ought itself to be discarded, as a departure, without 
 reason, from established landmarks of the law. The distinction was accepted 
 in England as of full force as late as 1868. Lumsden's Case, Law Eep. 4 Ch. 
 Ap. 31, 33, 34. And I have seen no case discarding it there. In Massachu- 
 setts, in 1873, the court refused to pronounce an infant's contract of surety- 
 ship to be, in "matter of law," "necessarily not beneficial to him," and there- 
 fore void; but this was on the express ground that "his contract might bo 
 beneficial to him." Owen v. Long, 112 Mass. 403, 404. And I submit that 
 there is on this subject no general American doctrine in departure from the 
 ancient and modern English law. Some differences will necessarily occur in 
 the application of this general doctrine, the same as of most others. 
 
 ' Baylis v. Dineley, 3 M. & S. 47T; Fisher v. Mowbray, 8 East, 830. 
 
 » Strain v. Wright, 7 Ga. 568; Bryan ». Walton, 14 Ga. 185; Oliver o. 
 Eoudlet, 13 Mass. 237 ; Whitney v. Dutch, 14 Mass. 457 ; Thompsons. Hamil- 
 ton, 12 Pick. 425 ; Wheaton v. East, 5 Terg, 41 ; Radford d. Westcott, 1 Des. 696. 
 
 « Young V. Bell, 1 Cranch C. C. 342 ; Buzzell v. Bennett, 2 Cal. 101 ; Wright v. 
 Steele, 2 N. H. 51 ; Keed v. Batchelder, 1 Met. 559 ; Earle v. Eeed, 10 Met. 387. 
 
 ' Williams v. Brown, 34 Maine, 594 ; Grace v. Hale, 2 Humph. 27. 
 
 » Baker v. Lovett, 6 Mass. 78; Bdgerton v. Wolf, 6 Gray, 453; Stafford v. 
 Eoof, 9 Cow. 626. 
 
 ' Hunt V. Peake, 5 Cow. 475 ; Cannon v. Alsbury, 1 A. K. Mar. 76; Willard 
 V. Stone, 7 Cow. 22 ; Warwick v. Cooper, 6 Sneed, Tenn. 659. 
 
 92 
 
INFANTS. § 275 
 
 Yoyage,^ or to work on land ;'' and the same doctrine applies 
 to bonds, deeds, and other specialties as to contracts not 
 under seal.'* Still a promissory note,* for example, or an 
 instrument under seal,^ may be of a sort to be void, as 
 already explained. Again, — 
 
 § 273. Infant Feme Covert — (Void — Voidable). — The 
 deed of an infant /ejwe covert is void, not voidable;* but 
 this is because she is a, feme covert, not because she is an 
 infant. In most of our States, the statutes permit wives to 
 convey their lands by deed executed jointly with their 
 husbands, or sometimes even alone ; therefore such a deed, 
 by an infant ye»we covert, is, the disability of coverture being 
 thus removed, voidable.' 
 
 § 274. Adults contractlng'wltli Infants — (As to Void). — 
 A contract which is void as to the infant is void also as to 
 the adult, neither being bound.* But — 
 
 § 275. As to Voidable. — A voidable contract is binding 
 on the adult, so long as the infant is in the fulfilment of his 
 
 ' Vent V. Osgood, 19 Pick. 572. 
 
 ' Judkins v. "Walker, 17 Maine, 38 ; Lowe v. Sinklear, 27 Misso. 308 ; Thomas 
 V. Dike, 11 Vt. 273; Hoxie v. Lincoln, 25 Vt. 206; Francis v. Felmit, 4 Dev. & 
 Bat. 498. 
 
 ' "Weaver v. Jones, 24 Ala. 420 ; Parsons v. Hill, 8 Misso. 135 ; Mustard v. 
 "WoUford, 15 Grat. 329 ; Jenkins v. Jenkins, 12 Iowa, 195 ; Slaughter v. Cun- 
 ningham, 24 Ala. 260 ; Harrod v. Myers, 21 Ark. 592 ; "Wallace v. Lewis, 4 
 Harring. Del. 75 ; Moore v. Abernathy, 7 Blackf. 442 ; Johnson v. Ecckwell, 12 
 Ind. 76 ; Chapman v. Chapman, 13 Ind. 396 ; Lowe v. Gist, 5 Har. & J. 106, 
 note ; Boston Banku. Chamberlin, 15 Mass. 220 ; Kendall v. Lawrence, 22 Pick. 
 540; Bool v. Mix, 17 "Wend. 119; Cook v. Toumbs, 36 Missis. 685; Ferguson 
 V. Bell, 17 Misso. 347; Cummings v. Powell, 8 Texas, 80; Fant u. Cathcart, 8 
 Ala. 725. 
 
 * Maples V. "Wightman, 4 Conn. 376. 
 
 5 "Waples V. Hastings, 3 Harring. Del. 403. 
 
 « Mackey v. Proctor, 12 B. Monr. 433 ; Magee v. "Welsh, 18 Cal. 155 ; Schrader 
 V. Decker, 9 Barr, 14 ; Cronise v. Clark, 4 Md. Ch. 403 ; Chandler v. McKinney, 
 6 Mich. 217 ; Adams v. Boss, 1 Vroom, 505. 
 
 ' 2 Bishop Mar. "Women, J 515. 
 
 8 Oliver v. Houdlet, 13 Mass. 237, 239 ; "Warwick v. Bruce, 2 M. & S. 205, 
 206. 
 
 93 
 
§ 276 LAW OF CONTRACTS. 
 
 part, and does not avoid it.^ If the infant avoids it with- 
 out returning the consideration, when it is an article of 
 property capable of being laid hold of, the doctrine ought 
 to be, and it is plainly deducible from foregoirig principles,^ 
 that the adult may retake the article ; as, for example, by a 
 writ of replevin. There is perhaps no sufficient authority 
 for saying that this is established in adjudication.^ 
 
 § 276. Time and Manner of Avoiding and Confirming.* 
 — The cases are obscure and discordant as to what is an 
 avojidance and what a confirmation of a voidable contract, 
 and at what time the one or the other should be made. On 
 principle, and it is believed on satisfactory authority,* if the 
 contract is executed, it is good until avoided, because the 
 interest under it has already vested ; * and the avoidance may 
 be either before^ majority or reasonably soon after. It 
 should be by some distinct and positive act, leaving no 
 doubt as to the intent ; but any such act will do. If the 
 contract is executory, so that nothing has vested under it, 
 no act of avoidance is required ; and, to perfect it after 
 majority, it must be confirmed. But any act recognizing! 
 its continued existence will suffice. Should the cases ever 
 
 1 Bruce v. Warwick, 6 Taunt. 118; "Warwick v. Bruce, 2 M. & S. 205; 
 Nightingale v. "Withington, 15 Mass. 272 ; Thompson o. Hamilton, 12 Pick. 
 425; Holt v. Clarencieux, Stra. 937. 
 
 2 Ante, ? 267. 
 
 3 See Badger v. Phinney, 15 Mass. 359 ; Skinner t>. Maxwell, 66 N. C. 45. 
 * Compare with ante, g 267. ^ 
 
 ' Zouch V. Parsons, 3 Bur. 1794. 
 
 « Ante, § 263, 264. 
 
 ' That it cannot be before majority, see the able argument of Lord Mansfield 
 in Zouch v. Parsons, supra. His lordship well observes, that the privilege of 
 infancy "is given as a shield and not as a sword," p. 1802. Now, if, at a very 
 immature age, an infant should make a voidable disposition of all his estate for 
 a consideration inadequate in amount, or of a sort not available for his support, 
 then, on becoming older, should discover his folly, but must wait till he was 
 twenty-one years old, and the purchaser had dissipated all, so that no practica- 
 ble redress could bo had, this, it seems to me, would be making the shield per- 
 form the service of the sword. I cannot think that such is, or ought to be, 
 94 
 
INFANTS. § 277 
 
 be reconciled, and those which cannot be brought into line 
 with the rest overruled, doubtless these distinctions indicate 
 the way in which it will be done.^ 
 
 § 277. Interests vested in Third Person. — From some 
 doctrines stated in the chapter before the last ^ it might seem 
 to follow, that, if an infant makes a voidable conveyance of 
 his property, real or personal, to one who sells it to a third 
 person without notice and for an adequate consideration, 
 the title will be complete in the latter, and the infant cannot 
 recover it back. If this is so, the way to strip an infant is 
 easy, and the law's protection is valueless. There are cases / 
 which hold that the infant may have back again his real 
 estate from an innocent third person, and so much indeed .' 
 appears to be established ; ^ but perhaps he cannot thus 
 
 uniTersally the rule. Yet perhaps there may be cases in which the courts 
 should restrain the infant from thus avoiding his voidable contract during 
 minority. No sound reason appears why there may not be a diversity, of sorts 
 in the voidable contracts of infants. See Stafford v. Eoof, 9 Cow. 626. 
 
 1 1 Chit. Con. 11th Am. ed. 218, 219, and notes; Irvine v. Irvine, 9"Wal. 
 617; Skinner v. Maxwell, 66 N. C. 45; Spencer v. Carr, 45 N. Y. 406; Shrop- 
 shire V, Burns, 46 Ala. 108; Robinson v. Weeks, 56 Maine, 102; Tucker v. 
 Moreland, 10 Pet. 58; Judkins v. Walker, 17 Maine, 38; Lowe v. Sinklear, 27 
 Misso. 308 ; Thomas v. Dike, 11 Vt. 273 ; Hoxie v. Lincoln, 25 Vt. 206 , Zouch 
 V. Parsons, supra, p. 1804; Harris v. Cannon, 6 G-a. 382; Harrison v. Adcock, 
 8 Ga. 68 ; Phillips v. Green, 3 A. K. Mar. 7 ; Derrick v. Kennedy, 4 Port. 41 ; 
 Jefford V. Ringgold, 6 Ala. 544; Thomasson v. Boyd, 13 Ala. 419; Phillips v. 
 Green, 5 T. B. Monr. 344; Murray v. Shanklin, 4 Dev. & Bat. 289; Smith v. 
 Mayo, 9 Mass. 62, 64; Pord i>. Phillips, 1 Pick. 202; Thompson v. Lay, 4 
 Pick. 48; Proctor v. Sears, 4 Allen, 95; Wilcox v.'Ro&th, 12 Conn. 550; 
 Goodsell o. Myers, 3 Wend. 479; Bdgerlyu. Shaw, 5 Post. N. H. 514; Mil- 
 lard V. Hewlett, 19 Wend. 301 ; Armfield v. Tate, 7 Ire. 258 ; Reed v. Boshears, 
 4 Sneed, Tenn. 118; Buckner v. Smith, 1 Wash. Va. 295; Stokes v. Brown, 4 
 Chand. 39 ; Whitney v. Dutch, 14 Mass. 457, 461 ; Orvis u. Kimball, 3 N. H. 
 314; Hoit v. Underbill, 10 N. H. 220; Empions v. Murray, 16 N. H. 385; 
 Richardson if. Boright, 9 Vt. 268; Wright v. Germain, 21 Iowa, 585; Deason 
 V. Boyd, 1 Dana, 45 ; and multitudes of other cases, in absolute discord. 
 
 ' Ante, I 199-201. And see ante, g 159. 
 
 " Myers v. Sanders, 7 Dana, 506, 521 ; Somers v. Pumphrey, 24 Ind. 231, 
 239; Moore v. Abemathy, 7 BJackf. 442; Hovey v. Hobson, 53 Maine, 451; 
 456; Dunbar i;. Todd, 6 Johns. 257; Hill v. Anderson, 5 Sm. & M. 216, 224. 
 See Black v. Hills, 36 111. 376< Compare with post, § 297. 
 
 95 
 
§ 280 LAW OF CONTRACTS. 
 
 have again, from such third person, every kind of prop- 
 erty.^ 
 
 § 278. Other Points — (What the Law would compel — 
 Fraud — Rescinding Rescission). — There are some other 
 points, — such as the obvious one that the infant will be 
 bound by any voluntary act which the law woiild compel;^ 
 that if, when making a contract, he pretends to be of age, 
 he may still plead infancy against it;^ that, after he has 
 rescinded a contract, he cannot take back the rescission,* — 
 but the foregoing doctrines are the chief and leading ones. 
 
 § 279. Authorities contradictory. — Doubtless there is 
 not a word in this chapter which may not be contradicted 
 by something in the books ; yet if accords with what, on the 
 whole, may be deemed the current of modem decision. 
 
 § 280. The Doctrine of this Chapter restated. 
 
 One is an infant until he attains the age of twenty-one 
 years ; which, as the period of freedom from the restraints 
 required for nurture and education, is necessarily arbitrary, 
 yet on the whole just. In natural reason, an intelligent 
 young man who lacks a day only of being twenty-one 
 should not stand on the same footing, as to the power of 
 contract, with a boy of four.. And we cannot say affirma- 
 tively that he does in law. Indeed, it is plain that he does 
 not. Yet if, in these extremes of age, we can separate the 
 two, we cannot say at what points between, the diversities 
 vary or end. In the criminal law, one under seven years 
 cannot become punishable, and one over fourteen is as liable 
 to punishment as an adult, while between those ages evi- 
 
 1 Welch «. Welch, 103 Mass. 562; Frazierc. Massey, 14 Ind. 382; Nightin- 
 gale V. Withington, 15 Mass. 272. 
 
 ' Bavington v. Clarke, 2 Pa. 115; Kilcrease v. Shelby, 23 Missis. 161; 
 Zouch V. Parsons, 3 Bur. 1794, 1801. 
 
 ' Merriam v. Cunningham, 11 Gush. 40 ; Burley v. Russell, 10 N. H. 184. 
 
 * Edgerton v. Wolf, 6 Gray, 453. 
 
 96 
 
INFANTS. § 280 
 
 deuce of actual capacity may be submitted to the tribunal.^ 
 In the matrimonial law, a boy and girl of seven may enter 
 into such an "inchoate and imperfect marriage," that, if 
 she becomes a widow at nine, the common law will give her 
 dower ; and a boy of fourteen and a girl of twelve may 
 marry as effectually as at their majority, — ages which have 
 been varied by statutes in some of our States.^ A boy under 
 fourteen, as the law is generally held, cannot become legally 
 guilty of rape, whatever ravishment he may in fact perpe- 
 trate.^ But refinements like these have not been carried 
 into the ordinary law of contracts. The law may bind an 
 infant, like any other person, by a contract to which he does 
 not consent. But the infant cannot, by any consent, bind 
 himself. The books sometimes speak of his doing the latter ; 
 but the cases, on being looked into, are found to be those 
 in which the law creates the contract. A contract which 
 cannot be beneficial to the infant is void ; that is, it transfers 
 nothing, and it cannot be enforced against either party. 
 One which may be beneficial, even though the court cannot 
 foresee whether it will be or not, binds the adult party, but 
 the infant may avoid it or not at his election. Hence it is 
 termed voidable. Practically, most contracts of infants are 
 found to be of the latter sort. 
 
 <■ 1 Bishop Crim. Law, § 368 et seq. 
 
 2 1 Bishop Mar. & Div., ^ 143-153. 
 
 3 2 Bishop Crim. Law, g 1117. 
 
 97 
 
§ 283 LAW OP CONTRACTS. 
 
 CHAPTEE XVin. 
 
 MARRIED WOMEN. 
 
 §281. Complications of Doctrine. — The rights and 
 disabilities of married women in the matter of contract are, 
 under the unwritten rule, not the same in courts of law and 
 courts of equity. And they have been greatly changed by 
 statutes, particularly of late. The decisions under the 
 unwritten rule differ somewhat in ^ur various States, — the 
 statutes differ, — the constructions under them are not uni- 
 form in the several States or even in the same State at 
 different dates, — there is a mingling, in some of the 
 States, of law and equity, so that the two somewhat contra- 
 dictory things constitute the rule for decision in one and 
 the same cause. These, and other reasons which might be 
 added, render it impossible to state the powers and disa- 
 bilities as to contract in any short way, harmonious with 
 these discussions. 
 
 § 282. Kesult of Complications. — These complications 
 do not render the subject intrinsically so difficult as might 
 appear. But they have made it, in another view, a great 
 one, — great in the number of decisions, of distinct doctrines, 
 of different blendings of doctrine with doctrine ; requiring a 
 careful tracing of lines over long and continuous paths. 
 This work the present wi'iter has done in two volumes on 
 the "Law of Married Women," and he does not propose 
 to himself the useless attempt at abridgment here. 
 
 § 283. Importance. — If the importance of the subject, 
 instead of its intrinsic impossibilities, were considered, this 
 98 
 
MAEEIED WOMEN. § 283 
 
 chapter would be made very full. Scarcely a day passes 
 with any lawyer in practice when he does not have occasion 
 to advise upon it. And he cannot draw the necessary learn- 
 ing from the general fountain of his reading, since its 
 principles are to a considerable extent peculiar. He must, 
 therefore, resort to the discussions of the special topic. 
 
 99 
 
§ 285 LAW OF CONTRACTS. 
 
 CHAPTER XIX. 
 
 INSANE PERSONS. 
 
 § 284. In Brief — ( Some Power — Liimited). — Persons 
 who are insane have no complete power of contract. Yet 
 their acts of this sort are not, in general, absolute nullities. 
 To reduce to definite form these two propositions is the 
 object of this chapter. 
 
 § 285. Name of Insanity — Source. — The name and 
 source of the insanity are, as respects the discussions of this 
 chapter, immaterial. One who is an idiot,^ lunatic,'' or in 
 any other form non compos mentis,^ — in all his faculties, or 
 a monomaniac as to the particular thing,* — of intellect in a 
 sufficient degree weak,* imbecile from age,^ or deranged, — 
 is equally incapable of executing a perfectly valid contract. 
 On the Qther hand, — 
 
 • Millison v. Nicholson, Conference, 499. 
 
 ' Merritt v. Gumaer, 2 Cow. 552 ; Carr v. HoUiday, 5 Ire. Eq. 167 ; Ward 
 t!. Kelly, 1 Ind. 101. 
 
 ' Taylor v. Dudley, 5 Dana, 308; In re Livingston, 84 N. Y. 555; Van 
 Deusen v. Sweet, 51 N. T. 378. 
 
 • Alston 11. Boyd, 6 Humph. 504 ; Bond v. Bond, 7 Allen, 1 ; Boyce v. Smith, 
 9 Grat. 704. 
 
 ' Sentance v. Poole, 3 Car. & P. 1; Johnson v. Chadwell, 8- Humph. 145; 
 Beller v. Jones, 22 Ark. 92 ; McPaddin v. Vincent, 21 Texas, 47 ; Hale v. Brown, 
 11 Ala. 87; James v. Langdon, 7 B. Monr. 193; "Wilson v. Oldham, 12 B. 
 Monr. 55; Owings's Case, 1 Bland, 370; Dodds v. Wilson, 1 Tread. 448; 
 Somes V. Skinner, 16 Mass. 348 ; CoAant v. Jackson, 16 Vt. 336. 
 
 • Coleman v. Prazer, 3 Bush, 800; Jeneson v. Jeneson, 66 Dl. 259; Keeble 
 V. Cummins, 5 Hayw. 43; Parris v. Cobb, 5 Bich. Eq. 450; Hiuchman v. 
 Bmans, Saxton, 100; Parnam v. Brooks, 9 Pick. 212, 220. ^ 
 
 100 
 

 OCT 
 
 INSANE PERSONS. 
 
 § 
 
 L\ 
 
 § 286. liucid Interval. — A person habitually insane has 
 the power of contract in a lucid interval.^ 
 
 § 287. Own Fault — Drunkenness. — If the insanity 
 proceeded from his own fault, — as, if it is the effect of 
 habitual and long-continued drunkenness, — it is the same 
 as though proceeding from the more direct visitation of 
 God.'' 
 
 § 288. As to the Particular Subject. — In a sort of 
 general way, we say that a man is sane or insane, without 
 enquiring for what particular purpose the insanity is to be 
 set up. But one maybe able to dispose of his property 
 judiciously to near friends by a will, yet possess too little 
 intellect to comprehend the relations required for the com- 
 mand of an army. And, in the law, a person is not unfre- 
 quently deemed to have capacity to do one binding act, yet 
 not another.^ 
 
 § 289. Insanity as to Contracts defined. — In the law of 
 contracts, insanity is such disease, weakness, or other im- 
 perfection or derangement of the mind as disqualifies it, 
 when entering into the form of a contract,* to comprehend 
 the subject of it, and its nature and probable consequences.* 
 Hence — 
 
 § 290. Degree and Kind. — There may be delusions, on 
 independent .subjects, not adequate to impair a contract.* 
 
 1 Toser v. Saturlee, 3 Grant, Pa. 162; Jones v. Perkins, 5 B. Monr. 222; 
 Hall V. Warren, 9 Ves. 605 ; Lilly v. Waggoner, 27 111. 395. 
 
 * Bliss V. Connecticut, etc.. Railroad, 24 Vt. 424; MenkinsB. Lightner, 18 111. 
 282. 
 
 " 1 Bishop Mar. & Div. 1 126-128; Howard v. Coke, 7 B. Monr. 655; Con- 
 verse V. Converse, 21 Vt. 168 ; Kinne v. Kinne, 9 Conn. 102 ; Stubbs v. Houston, 
 83 Ala. 655; Hall v. Hall, 18 Ga. 40; Gaither v. Gaither, 20 Ga. 709. 
 
 * Lewis V. Baird, 3 McLean, 55; Beckwith v. Butler, 1 Wash. Va. 224; Jen- 
 ners v. Howard, 6 Black£ 240. 
 
 6 Lozear v. Shields, 8 C. B. Green, 509; 1 Chit. Con. 11th Am. ed. 185; 
 Bond V. Bond, 7 Allen, 1, 8 ; Brown v. Brown, 108 Mass. 386 ; Henderson ». 
 McGregor, 30 Wis. 78 ; Musselman v. Cravens, 47 Ind. 1. 
 
 6 Lozear v. Shields, 8 C. E. Green, 509. 
 
 101 
 
§ 291 LAW OF COKTRACT8. 
 
 To have this effect, they, or the imbecility, or derangement, 
 must be such as to cover the particular matter of the con- 
 tract, and be sufficient in degree to come within the definition 
 just given .^ 
 
 § 291. Insanity prompting the Contract or not. — What- 
 ever be the theories of medical experts, there are persons 
 who,"'to common observation, are neither completely insane 
 nor completely sane. Many or most of their acts appear 
 to be both rational in themselves and prompted by the 
 normal faculties, while, in others, the mind is perhaps more 
 or less clouded. The law recognizes this, which common 
 observation discloses ; and, where the mental disorder is 
 not far advanced or of a positive character, looks at the 
 nature of the contract, and the influences leading to it, in 
 determining whether or not it should be sustained. Is it 
 fair and just? Was the consideration adequate? Did the 
 other party know of the mental derangement ? Did he seek 
 any advantage in consequence of such knowledge ? Was 
 undue influence used — is there any taint of fraud? Did 
 the person alleged to be insane have any friendly advice, 
 and what was its nature, and from whom? Enlightened by 
 the answers to questions like these, as well as those which 
 bear more directly on the mental condition, the court or 
 jury are to determine whether the contract was the offspring 
 of insanity, or of the competent, normal mind. If the 
 former, it is ill ; if the latter, it is good.'' 
 
 ' Hovey v. Hobson, 55 Maine, 256 ; Miller v. Craig, 86 HI. 109 ; Speers v. 
 Sewell, 4 Bush, 239 ; Hovey v. Chase, 52 Maine, 304 ; Dennett v. Dennett, 44 
 N. H. 531 ; Odell v. Buck, 21 Wend. 142 ; OsterhoutB. Shoemaker, 3 Hill, N. Y. 
 513 ; Eippy v. Gant, 4 Ire. Eq. 443 ; Samuel v. Marshall, 3 Leigh, 567 ; Smith 
 V. Elliott, 1 Pat. & H. 307 ; Farnam v. Brooks, 9 Pick. 212; Somes v. Skinner, 
 16 Mass. 348, 358; Siemou v. Wilson, 3 Edw. Ch. 36; Smith v. Beatty, 2 Ire. 
 Eq. 456. 
 
 ' See and compare ante^ ? 225-227 ; "Wray v. Wray, 32 Ind. 126 ; Jeneson v. 
 Jeneson, 66 111. 259 ; Behrens v. MoKenzie, 23 Iowa, 333 ; Waters v. Barral, 2 
 Bush, 598; Owings's Case, 1 Bland, 370; Jones v. Perkins, 5 B. Monr. 222; Hol- 
 land V. Miller, 12 La. An. 624; Dodds v. Wilson, 1 Tread. 448, 3 Brev. 389; 
 102 
 
INSANE PERSONS. § 295 
 
 § 292. Executory or Executed. — It is believed that no 
 mere executory contract, which proceeded from an insane 
 mind, is binding on the insane person.^ But, — 
 
 § 293. Created by Law. — As we have seen,^ where 
 necessaries are furnished to such a person, and perhaps in 
 some other cases of executed contracts, where a benefit is 
 actually conferred (not where it is not^), the law will create 
 a promise from him to pay what the benefit is reasonably 
 worth.* And, — 
 
 "§ 294. Knowledge of the Insanity. — In considering 
 questions of the sort last mentioned, it is sometimes deemed 
 a material circumstance that the sane person contracting 
 with the insane one did not know of the insanity.* Yet in 
 strict law, at least by the better doctrine, this is never abso- 
 lutely controlling ; for, if insanity exists, though unknown 
 to the other, and the case is not one of a contract created 
 by law, it is not binding.® 
 
 §295. Allege own Insanity — Rescission. — Contrary 
 to a doctrine formerly held by the courts, it is the modern 
 law that a party may set up his own insanity to avoid a con- 
 
 Hinchman v. Emans, Saxton, 100; Neely v. Anderson, 2 Strob. Eq. 262; 
 Conant v. Jackson, 16 Vt. 335 ; Keeble v. Cummins, 5 Hayw. 43 ; Parris v. 
 Cobb, 5 Rich. Eq. 450; McEaddin v. Vincent, 21 Texas, 47; Hale ii. Brown, 11 
 Ala. 87 ; James v. Langdon, 7 B. Monr. 193 ; Wilson v. Oldham, 12 B. Monr. 
 55; Johnson v. Johnson, 10 Ind. 387; Niell o. Morley, 9 Ves. 478; Evans d. 
 Blood, 3 Bro. P. C. 632 ; Sergeson v. Sealy, 2 Atk. 412 ; s. c. nom. Sergison v. 
 Sealey, 9 Mod. 870; Clerk v. Clerk, 2 Vern. 412, 414; Stockley v. Stockley, 1 
 Ves. & B. 23; Osmond v. Fitzroy, 8 P. Wms. 129. 
 
 1 1 Chit. Con. 11th Am. ed. 191; Musselman v. Cravens, 47 Ind. 1 ; Bice v. 
 Peet, 15 Johns. 503 ; Eitzgerald ». Heed, 9 Sm. & M. 94; Crowther ». Eow- 
 landson, 27 Cal. 376; Maddox v. Simmons, 31 Ga. 512; Burke v. Allen, 9 
 Post. N. H. 106. 
 
 2 Ante, ? 85. 
 
 ' Lincoln v. Buckmaster, 82 Vt. 652. 
 
 * And see Carr v. HoUiday, 5 Ire. Eq. 167; Kendall v. May, 10 Allen, 59. 
 
 * Behrens v. McKenzie, 23 Iowa, 833 ; Succession of Smith, 12 La. An. 24 ; 
 Carr v. HoUiday, 1 Dev. & Bat. Eq. 344 ; Molton v. Camroux, 2 Bxch. 487, 
 4 Exch. 17 ; Beavan v. McDonnell, 9 Exoh. 309. 
 
 « Seaveri). Phelps, 11 Pick. 304; Hovey v. Hobson, 53 Maine, 451, 453. 
 
 103 
 
§ 297 LAW OF CONTRACTS. 
 
 tract. ^ Nor, though the contract is executed, is it always 
 necessary that, in avoiding it, he should return the consid- 
 eration.^ 
 
 § 296. Void OP Voidable — Conveys Seisin, etc. — 
 There are cases which seem to hold, or in which the judges 
 incautiously state the doctrine to be, that, where a contract 
 is impeachable for insanity, it is absolutely void.^ And 
 perhaps there may be circumstances in which this is so by 
 the better doctrine.* If the insanity is complete and pro- 
 found, the law ought, in reason and justice, to be so held. 
 But in most of the cases the insanity is, on the facts, only 
 partial ; and the contract is generally adjudged to be merely 
 voidable by the insane person or his legal representatives ; 
 and, while not so avoided, binding on the other party. It 
 may be ratified by the insane person on his restoration to 
 reason. But, before ratification, if, for example, it is a deed 
 of real estate, it conveys a seisin to the grantee.^ 
 
 § 297. Innocent Third Persons. — We have seen,* that, 
 where a contract is voidable for fraud in the inducement to 
 it, if it becomes executed by a conveyance to the defrauding 
 party, then this party for a full consideration conveys the 
 thing to a third person ignorant of the fraud, the title is 
 thereby perfected in the latter, and he cannot be divested 
 
 ' Seaver v. Phelps, 11 Pick, 304 ; Eice v. Peet, 15 Johns. 503 ; Ballew v. 
 Clark, 2 Ire. 23 ; Bensell v. Chancellor, 5 Whart. 371 ; Morris v. Clay, 8 Jones, 
 N. C. 216; Mitchell v. Kingman, 5 Pick. 431 ; Webster v. "Woodford, 3 Day, 
 90; Grant v. Thompson, 4 Conn. 203 ; Lang v. Whidden, 2 N. H. 435; Thorn- 
 ton V. Appleton, 29 Maine, 298 ; Tolsons v. Gamer, 15 Misso. 494. 
 
 ' Gibson v. Soper, 6 Gray, 279 ; Foss v. Hildreth, 10 Allen, 76, 80. 
 
 8 Ante, ? 157. 
 
 ' Van Deu^en v. Sweet, 51 N. Y. 878 ; Marvin v. Lewis, 61 Barb. 49 ; Burke 
 V. Allen, 9 Post. N. H. 106. 
 
 5 Matthews B.Baxter, Law Eep. 8 Ex. 132; Allis u. Billings, 6 Met 415; 
 Merritt v. Gumaer, 2 Cow. 552; Crouse v. Holman, 19 Lid. 30; Breckenridge 
 V. Ormsby, 1 J. J. Mar. 236; Somera v. Pumphrey, 24 Lid. 231; Gates v. 
 Woodson, 2 Dana, 452 ; Hovey v. Hobson, 53 Maine, 451 ; Arnold v- Rich- 
 mond Iron Works, 1 Gray, 434 ; Ingraham v. Baldwin, 5 Selden, 45. 
 
 « Ante, g 198-201. 
 104 
 
INSANE PERSONS. § 299 
 
 of it. If we look for the true reason why, when a man has 
 but a voidable title, he can make, what he has not, a com- 
 plete one in his grantee, we shall probably find it in the 
 equitable view that he who suffered his own weakness to be 
 imposed upon, and was therefore in a measure to blame, 
 should bear a loss rather than the meritorious third person 
 who was clear of every fault.^ In a case of insanity, the 
 considerations are reversed. To the insane person, not even 
 carelessness can be attributed. And the third person was in 
 a degree careless ; because, insanity being usually a perma- 
 nent condition, he could ascertain its existence by enquiry, 
 as a third person could not a fraud. Therefore the rule 
 ought to be, that, if real estate, for example, has by the 
 deed of an insane man passed to a grantee who has conveyed 
 it to a third person, though for its full value, and without 
 notice, this third person should have a mere defeasable seisin, 
 like his grantor's. And so it is held.^ 
 
 § 298. Statutory GuardiansUps, etc. — The foregoing 
 sections relate to cases in which the insane person is not 
 under guardianship or a commission of lunacy. There are 
 in our States differing statutory regulations on this subject, 
 not to be considered here. 
 
 § 299. The Doctrine of this Chapter restated. 
 
 Like an infant, an insane person cannot bind himself by 
 a contract; though, in some circumstances, the law will 
 bind him. But, as one may be insane, yet not ordinarily 
 appear so, or only partially insane, and practically have the 
 care of himself and his affairs, it is generally not unjust that 
 
 » See Eawls v. Deshler, 4 Abb. Ap. Dec. 12. 
 
 ' Hovey v. Hobson, 53 Maine, 451 ; Somers «. Pumphrey, 24 Ind. 231, 238. 
 See Gates v. "Woodson, 2 Dana, 452 ; ante, ? 180 ; Tuentes v. Montis, Law Eep. 
 3 C. P. 268, 276, 277 ; Cole v. Northwestern Bank, Law Bep. 10 C. P. 354, 362, 
 863. 
 
 105 
 
§ 299 LAW OF CONTEACTS. 
 
 a sound-minded person, who enters into a formal contract 
 with such a person, should be bound thereby. And the 
 insane person ought to have the benefit of such a contract, 
 should it be beneficial to him . Now, if the law were to hold 
 the contract void, the sane party would not be bound by it, 
 nor could the insane take under it any benefit.^ Conse- 
 quently, and justly, the law generally holds the contract in 
 such circumstances to be voidable, — the insane party may 
 avoid it ; but, if he does not, it binds the sane. Yet, when 
 it is avoided, the avoidance, like an infant's of his contract, 
 operates more strongly against an innocent third person 
 than the avoidance, by a party defrauded, does of the 
 fraudulent contx'act. 
 
 > Ante, i 155, 156, 274. 
 106 
 
DKUNKEN PERSONS. § 303 
 
 CHAPTEE XX. 
 
 DgUNKEN PERSONS. 
 
 § 300. When, cannot contract. — Intoxication in a con- 
 tracting party, like insanity, renders the contract imperfect, 
 when so deep as to take away the agreeing mind.^ But, — 
 
 § 301 . Degree — Sober Interval. — If it is less in degree, 
 the contract is not made invalid by it, though the party is a 
 drunkard. ** And even where his drunkenness has become 
 habitual, his contract is good if -made in a sober interval.^ 
 
 § 302. Making Drunk. — For drunkenness to produce 
 the effect thus stated, the party need not be made drunk by 
 the other.* But a less degree will suffice where it is pro- 
 duced by the artifice of the other party, to gain an undue 
 advantage ; for then fraud mingles with it.® So — 
 
 § 303. Undue Advantage. — Undue advantage taken of 
 a drunken man may render void a contract which, if he 
 were sober, would be good.® 
 
 » 1 Bishop Mar. & Div. ? 131 ; 2 Kent Com. 451, 452; Pitt v. Smith, 3 Camp. 
 33; Penton v. HoUoway, 1 Stark. 126; Dulany v. Grreen, 4 Harring. Bel. 285; 
 Drummond v. Hopper, 4 Harring. Del. 327 ; Cummings v. Henry, 10 Ind. 109; 
 Berkley v. Cannon, 4 Kich. 186; Johns v. Pritchey, 39 Md. 258; Williams v. 
 Inabnet, 1 Bailey, 343; Wilson v. Bigger, 7 Watts & S. 111. 
 
 " Pickett V. Sutter, 5 Cal. 412 ; Woods v. Pindall, Wright, Ohio, 507 ; Belcher 
 V. Belcher, 10 Yerg. 121; Morris v. Nixon, 7 Humph. 579; Lightfoot». Heron, 
 3 T. & Col. Ex. 586 ; Hutchinson v. Brown, Clarke, N. Y. 408 ; Henry v. Rite- 
 nour, 31 Ind. 136 ; Eeinicker v. Smith, 2 Har. & J. 421 ; Caulkins v. Fry, 35 
 Conn. 170, 172. 
 
 ' Eitter's Appeal, 9 Smith, Pa. 9. 
 
 * Donelson v. Posey, 13 Ala. 752 ; Freeman v. Staats, 4 Halst. Ch. 814 ; 
 French v. French, 8 Ohio, 214; Wigglesworth v. Steers, 1 Hen. &M. 70. 
 
 6 Say V. Barwick, 1 Ves. & B. 195. 
 
 ^ Henry v. Bitenour, 31 Ind. 136 ; Burroughs v. Eichman, 1 Green, N. J. 233 ; 
 
 107 
 
§ 306 LAW OF CONTRACTS. 
 
 § 304. Voidable — Ratify. — The contract is not void, 
 but voidable, and it may be ratified by the party vrhen 
 sober.-' 
 
 § 305. How ratify. — One method of ratification is to 
 keep the consideration received.^ 
 
 § 306. Tlie Doctrine of this Chapter restated. 
 
 Drunkenness, carried to a sufficient d^^ee, operates, in 
 civil jurisprudence, as a sort of insanity. In the criminal 
 law, it is regarded in the nature of a crime ; so that, if a man 
 wilfully makes himself drunk, then commits an act of wrong 
 of the class which is indictable when done from general 
 malevolence not requiring a specific criminal intent, he is 
 punishable the same as though he were sober .^ But this 
 doctrine has no application in the law of contracts. Or, 
 exactly, a contract requires a specific intent, — a determina- 
 tion of the mind to enter into the particular agreement 
 which the words express. Consequently the party would 
 not be bound even under the rules of the criminal law. The 
 reasons mentioned under the title insanity * show that the 
 drunkard's contract, when not valid, must generally be — 
 a^d so the courts hold it — voidable, and not void. 
 
 Birdsong v. Birdsong, 2 Head, 289 ; Mansfield v. "Watson, 2 Iowa, 111 ; White 
 V. Cox, 3 Hayw. 79. 
 
 ' Mitthews V. Baxter, Law Rep. 8 Ex. 132. See Caulkins v. Pry, 35 Conn. 
 170. 
 
 2 Williams v. Inabnet, 1 Bailey, 343; Joest v. Williams, 42 Ind. 565. But 
 see EeinskoflF v. Kogge, 37 Ind. 207. 
 
 5 1 Bishop Crim. Law, ? 397-416. 
 
 « Ante, I 299. 
 108 
 
CORPOKATIONS. § 309 
 
 CHAPTER XXI. 
 
 COEPOKATIONS. 
 
 § 307. Power of Contract. — The powers of a corpora- 
 tion come solely from its charter, or incorporating act; 
 being either expressed therein, or implied.^ And as indi- 
 viduals cannot live without continually entering into con- 
 tracts, so cannot a corporation. Therefore, — 
 
 § 308. When implied. — If the power of contract is not 
 specially given to a corporation, <it is always, to some extent, 
 implied ; and, if it is given, but not in adequate measure, 
 the deficiency may be made up from implication.^ 
 
 § 309. Extent of Implication. — At common law, a cor- 
 poration has, within its sphere, the same power of making 
 contracts as a natural person.^ Therefore, though the books 
 contain some intimations that, to justify a contract through 
 a power implied, it must be necessary to the carrying out 
 
 1 Head v. Pro-vldence Ins. Co., 2 Cranch, 127; Beaty u. Knowler, 4 Pet. 152; 
 Straus V. Eagle Ins. Co., 5 Ohio State, 59; White's Bank v. Toledo Ins. Co., 
 12 Ohio State, 601; McMasters v. Eeed, 1 Grant, Pa. 36; Burr v. McDonald, 
 3 Grat. 215 ; Madison, etc.. Plank Road v. "Watertown, etc.. Plank Boad, 5 
 Wis. 173; Weckler v. First National Bank, 42 Md. 581 ; Matthews v. Skinner, 
 62 Misso. 329. 
 
 ' People V. Mauran, 5 Denio, 389 ; Blanchard's Gun-stock Turning Factory 
 t>. Warner, 1 Blatch. 258 ; Bennington Iron Co. v. Eutherford, 3 Harrison, 467 ; 
 Moss V. Averell, 6 Selden, 449 ; Cincinnati, etc., Kailroad v. Clarkson, 7 Ind. 
 595; Abbott v. Baltimore, etc.. Steam Packet, 1 Md. Ch. 542; Beynolds v. 
 Stark, 6 Ohio, 204 ; Barry v. Merchants' Exchange, 1 Sandf. Ch. 280. Whether 
 or not the cases cited come fully up to supporting the latter clause in the text, 
 it is plainly correct in principle ; for, otherwise, a part of the act of incorpora- 
 tion would be rendered practically null. 
 
 • Eiche V. Ashbury Eailway Carriage, etc., Co., Law Kep. 9 Ei. 224, 264; 
 and cases in the last note. 
 
 109 
 
§ 314 LAW OF CONTRACTS. 
 
 of express powers, such is not the true rule;^ but, if the 
 subject of the contract is within the corporate sphere, and 
 the contract itself is such as an individual might make, it 
 will be good. Thus, — 
 
 § 310. Take and coHvey. — A corporation may, within 
 its sphere, take and convey real estate and other property ;^ 
 but not outside of its general power and purposes.^ So — 
 
 § 311. Negotiable Paper. — Corporations, acting within 
 their sphere, not otherwise, may issue and receive negotia- 
 ble paper .^ Also — 
 
 § 312. Appoint Agent. — They may appoint an agent 
 and provide for his compensation.* Also — 
 
 §313. Borrow — Mortgage. — They may borrow nloney ® 
 and mortgage their property to secure their debts.' 
 
 § 314. Mode of contracting: — 
 
 Wlien prescribed in Charter. — When corporations have 
 prescribed to them in their charters ' ' a mode of contracting, 
 they must," said Marshall, C. J., " observe that^ mode, or 
 the instrument no more creates a contract than if the body 
 had never been incorporated."* This is perhaps generally 
 
 1 Met. Con. 156. 
 
 » Sutton's Hospital, 10 Co. 23 a, 80 h; Blanchard's Gun-stock Turning 
 Factory v. Warner, 1 Blatch. 258; Barry v. Merchants' Exchange Co., 1 Sandf. 
 Ch. 280; Phillips Academy v. King, 12 Mass. 546; Eehoboth v. Eehoboth, 23 
 Pick. 139 ; Bennington Iron Co. ». Rutherford, 8 Harrison, 467 ; Leazure v. 
 Hillegas, 7 S. & E. 313, 320; Buell ®. Buckingham, 16 Iowa, 284; Indiana ». 
 Woram, 6 Hill, N. T. 33. 
 
 ' Lynch v. Hartwell, 8 Johns. 422 ; Oecum Co. v. Sprague Manuf. Co., 34 
 Conn. 529 ; First Parish in Sutton «. Cole, 3 Pick. 232. 
 
 * Met. Con. 158; Attorney General v. Life and Fire Ins. Co., 9 Paige, 470; 
 Moss V. Avefell, 6 Selden, 449 ; Ketchum v. Buffalo, 4 Kernan, 156 ; Good- 
 rich ©.Reynolds, 31 BI. 490; Hardy v. Merriweather, 14 Ind. 203; Came v. 
 Brigham, 39 Maine, 35 ; Baton v. Mississippi Ins Co., 31 Missis. 116 ; Moss e. 
 Oakley, 2 Hill, N. Y. 265; McOuUough v. Moss, 5Denio, 567; In re Great 
 "Western Telegraph, 5 Bis. 363. 
 
 ' Cincinnati, etc., Railroad v. Clarkson, 7 Ind. 595; Beits and Dauphin 
 Turnpike Road v. Myers, 6 S. & R. 12, 16. 
 
 ' Union Gold Mining Co. v. Rocky Mt. Nat. Bank, 2 Col. T. 248. 
 
 ' Gofdon ». Preston, I Watts, 885 ; People v. Brown, 5 Wend. 590. 
 
 « Head V. Providence Ins. Co., 2 Cranoh, 127, 169. 
 110 
 
COKPORATIONS. § 316 
 
 SO ;^ but sometimes a provision of the sort is construed as 
 directory only,* and contracts not in the prescribed mode 
 are held to be valid.' But, — 
 
 § 315. Wlien not prescribed — (Under Common Seal, 
 or not). — When the form is not prescribed in the charter, 
 it is the American doctrine, contrary in part to the English, 
 that a corporation can make aiiy contract within its power 
 in the same manner as a natural person would do.* If 
 it is required by the general laws to be by deed under 
 seal , it must be under the common seal of the corporation 
 affixed by one authorized.' But where a parol contract 
 would be valid if made by a natural person, the corporation 
 may contract by parol.^ Within this principle it may, with- 
 out seal, make a binding contract in writing to sell real 
 estate.' And — 
 
 § 316. Implied. — Contracts may be implied against cor- 
 porations the same as against natural persons.* 
 
 1 Holland i>. San Francisco, 7 Cal. 361 ; Osborne v. Tunis, 1 Butcher, 633; 
 Talmadge v. Korth American Coal, etc., Co., 3 Head, 337. 
 
 ^ Southern Life Insurance, etc., Co. v. Lanier, 5 Pla. 110. 
 
 s "Witte V. Derby Fishing Co., 2 Conn. 260; Bulkley v. Derby Fishing Co., 
 2 Conn. 252. 
 
 * Blunt D. "Walker, 11 "Wis. 334. 
 
 & Hatch V. Barr, 1 Ohio, 390 ; Koehler v. Black Kiver Falls Iron Co., 2 Black, 
 715 ; Osborne v. Tunis, 1 Dutcher, 633 ; Eagle Woolen Mills t>. Monteith, 2 Ore- 
 gon[ 277. See Union Bank «. Call, 5 Fla. 409 ; Johnston v. Crawley, 25 Ga. 316 ; 
 Phillips V. Coffee, 17 Bl. 154 ; Tenney v. East Warren, etc., Co, 43 N. H. 343; 
 Josey V. Wil. etc., Kailroad, 12 Rich. 134; University of Michigan v. Detroit, 
 etc., Soc, 12 Mich. 138 ; Kinzie v. Chicago, 2 Scam. 187. In Haven v. Adanas, 
 4 Allen, 80, the following form -was adjudged good: "In testimony whereof, said 
 party of the first part have caused these present? to be signed by their president, 
 and their common seal to be hereto affixed, and said parties of the second 
 part have hereto set their hands ahd se^s, the day and year first above written. 
 
 " Sam'l S. Lewis, President (seal), 
 "KoBBBT G. Shaw (seal)," etc. 
 
 • Selma v. Mullen, 46 Ala. 411 ; Bank of Columbia v. Patterson, 7 Cranoh, 
 299; Chesapeake and Ohio Canal v. Knapp, 9 Pet. 541. 
 
 I The Banks v. Poitiaux, 3 Band. 136 ; Legrand v. Sidney College, 5 Munfc 
 
 824. 
 8 Board of Education v. Greenebaun, 89 Bl. 609; Boss v. Madison 1 Ind. 
 
 Ill 
 
§ 317 LAW OP CONTRACTS. 
 
 § 317. The Doctrine of this Chapter restated. 
 
 A corporation, being an artificial person, can, like an 
 individual man, enter into contracts. But, being created 
 for specific purposes, and being endowed with only a part 
 of what pertains to individuals, its powers of contract are 
 limited by the objects for which it was brought into exist- 
 ence. Yet, while it must follow its charter, it may, if not 
 restrained thereby, exercise its powers of contract by the 
 same forms and methods which are permitted to individuals. 
 
 281 ; Merrick v. Burlington, etc., Plank Boad, 11 Iowa, 74; Petrie v. Wright, 
 6 Sm. & M. 647 ; Buckley v. Briggs, 80 Misso. 452 ; Canal B^ridge t>. Gordon, 
 1 Pick. 297 ; McMasterB v. Keed, 1 Grant, Pa. 36. 
 112 
 
CONTEACTING THKOUGH AGENTS. § 319 
 
 CHAPTEE XXII. 
 
 CONTRACTS MADE THROUGH AGENTS. 
 
 2 318-326. General Views and Introduction. 
 
 827-343. Creation and Termination of Agency. 
 
 344-351. Express and Implied Powers of Agent. 
 
 352-367. Execution of Contract by the Agent. 
 
 368-374. Pilling Blanlcs. 
 
 375-385. Agent departing from his Authority. 
 
 386-390. Frauds by and to Agents. 
 
 391. Doctrine of the Chapter restated. 
 
 § 318. Same as Personal. — An act performed through 
 an agent is the same in law as if done in person. Quifacit 
 jper alium facit per se. And this principle applies to con- 
 tracts.^ 
 
 § 319. Diverse Sorts of Agents. — There are many 
 kinds of agents, to some of whom si^ecific names are 
 attached by law or custom, while others are known simply 
 as agents. Of the former are — 
 
 1 Broom Leg. Max. 2d Eng. ed. 645 et seq. ; Story Agency, ? 2. To illus- 
 trate : A notice to an agent, while acting in the agency, is notice to the princi- 
 pal. Pringle v. Dunn, 37 Wis. 449; Mountford v. Scott, 3 Madd. 34; Vermont 
 Mining and Quarrying Co. v. Windham County Bank, 44 Vt. 489. And a pay- 
 ment to the agent is payment to the principal. McCrary v. Ashbaugh, 44 Misso. 
 410; Ely v. Harvey, 6 Bush, 620; Yates s.Freckleton, 2 Doug. 623. Likewise 
 the possession of a servant is the possession of his master. Goodwin v. Garr, 
 8 Cal. 615. When one has done a thing by his agent, it may be charged in 
 pleading as done by the principal, the agent not being mentioned. 1 Bishop 
 Crim. Proced. 2 332. But if a pleader needlessly states, that, for example, an 
 endorsement which in fact was by procuration was made by the defendant's 
 "own proper hand writing being thereto subscribed," this will be ill for the 
 variance. Levy v. Wilson, 5 Esp. 180. 
 
 113 
 
§ 323 LAW OF CONTRACTS. 
 
 § 320. Factors. — A factor, or commission merchant, is 
 one to whom goods are consigned for sale on commission, — 
 who is authorized to buy (when his agency extends to pur- 
 chasing) and sell either in his own name or in the name of 
 his principal, — and in whom the law vests a special property 
 in the goods .^ 
 
 § 321. Brokers. — A broker deals for a commission, or 
 brokerage ; but the thing dealt in is not always in his hands, 
 and he has no special property therein. His business is 
 that of a middle man.; making bargains for others ; or, at 
 least, bringing the parties together. He acts, not in his 
 own name, but in that of his px-incipal.^ 
 
 §322. Other Kinds — (Auctioneers — Common Car- 
 riers). — There are various other agents with distinguishing 
 names ; such as common carriers,^ who are not generally 
 authorized to contract ; auctioneers,* who, more than most 
 others, are to make contracts of sale, particularly at public 
 auction ; these two sorts differing in several other respects, 
 but being alike in this, that they have a special property in 
 the goods entrusted to them. Again, — 
 
 § 323. Attomeys-at-Law. — Attorneys-at-law are agents 
 
 1 Story Agency, § 33-34 a; Puentes v. Montis, Law Rep. 3 C; P. 268, 4 C. P. 
 93; Cole v. Northwestern Bank, Law Kep. 9 C. P. 470, 10 C. P. 354; Hopkirk 
 V. Bell, 4 Cranoh, 164; Taylor v. Wells, 3 "Watts, 65; Rapp u. Palmer, 3 
 "Watts, 178 ; Smart v. Sandars, 3 C. B. 380. 
 
 2 Story Agency, g 28-32; Xenos v. "Wickham, Law Rep. 2 H. L. 296 ; Tairlie 
 V. Fenton, Law Rep. 6 Ex. 169 ; Calder v. Dobell, Law Rep. 6 G. P. 486 ; Baxter 
 V. Duren, 29 Maine, 434 ; Touro v. Cassin, 1 Nott & McO. 173 ; McG-avock v. 
 Woodlief, 20 How. U. S. 221 ; Colvin v. Williams, 8 Har. & J. 38 ; Higgins v. 
 Moore, 34 N. Y. 417 ; Kock v. Bmmerling, 22 How. U. S. 69 ; Bailey v. Chap- 
 man, 41 Misso. 536 ; Shepherd v. Hedden, 5 Dutcher, 334. ^ 
 
 8 Redf. Carriers, J 20-23; Thurman v. Wells, 18 Barb. 500; King v. Shep- 
 herd, 3 Story, 349 ; Hooper v. Wells, 27 Cal. 11 ; Klauber v. American Express, 
 21 Wis. 21; Liver Alkali Co. v. Johnson, Law Rep. 7 Ex. 267, 9 Ex. 338; 
 Scaife v. Parrant, Law Rep. 10 Ex. 358. 
 
 * Story Agency, ^ 27; Beller v. Block, 19 Ark. 566; Hulse v. Young, 16 
 Johns. 1; Minturn v. Main, 3 Selden, 220; Blood v. French, 9 Gray, 197; 
 Boinest v. Leignez, 2 Rich. 464 ; McMechen v. Baltimore, 3 Har. & J. 534. 
 114 
 
CONTRACTING THROUGH AGENTS. § ^27 
 
 of another kiud.^ Though their chief business is to conduct 
 and avftid litigation, they have some incidental power of 
 contracting for their clients. 
 
 § 324. Still other Agents. — There are stiU other agents 
 with distinguishing names and differing functions ; and there 
 are ordinary persons, employed in the one instance, with 
 authority specially defined.^ A further parti cularizatiou is 
 not desirable here ; but — 
 
 § 325. DifferingPowers of Contract. — The reader should 
 bear in mind the foregoing distinctions, while considering 
 the authority of the agent to piake a contract. Where this 
 authority is given in terms by the principal, and these terms 
 are full and precise, and nothing is left to implication, they 
 will furnish the measure and limit of it, in all controversies 
 between the two. But where it is not thus definite, or where 
 the interests of other persons are involved, it may be impor- 
 tant to consider what sort of agent he is who made the 
 contract, and what is the law governing agents of his class. 
 
 § 326. Wliat for this Chapter — How divided. — The 
 subject of agency is too large to be minutely explained in 
 this chapter ; but we shall call to mind its leading doctrines 
 as to, I. The Creation and Termination of the Agency; 
 n. The Express and Implied Powers of the Agent ; III. 
 The Execution of the Contract by him ; IV. Filling Blanks ; 
 V. The Agent departing from his Authority ; VI. Frauds 
 by and to Agents. 
 
 I. The Creation and Termination of the Agency. 
 
 § 327. Under Seal, Written, Oral, etc.: — 
 Specialties. — An authority to an agent to execute an 
 
 • Spinks V. Davis, 32 Missis. 152 ; Ingraham v. Leiand, 19 Vt. 304 ; Valentine 
 V. Stewart, 15 Cal. 387 ; Ex parte Rogers, Law Rep. 3 0. P. 490. 
 
 ^ Towson 0. Havre do Grace Bank, 6 Har. & J. 47 ; Emerson v. Miller, 3 
 Casey, Pa. 278. 
 
 115 
 
§ 330 LAW OF CONTRACTS. 
 
 instrument under seal, in the absence of the principal, must, 
 in all instances, be itself under seal. It can be conferred 
 in no other way .^ But — 
 
 § 328. In Presence of Principal. — An act done by the 
 agent, in the presence of the principal, is the act of the 
 latter ; and any person whom the principal permits to do 
 the act is his agent, within this rule. Therefore, in such a 
 case, a verbal authorization to execute the sealed instrument, 
 or a tacit consent, is all that is required.^ Again — 
 
 § 329. Corporation Deed. — A corporation has no bodily 
 presence, and it can act only by its officers and other agents. 
 Consequently, when it makes its deed,^ the authority to the 
 person who affixes the common seal need not be under seal ; 
 since all the presence it is capable of is with its agent 
 through whom it is acting. It could in no other manner 
 put its seal to a power of attorney.* 
 
 § 330. Simple Contracts in Writing. — Any written 
 contract not under seal, whether required by statute — as, 
 for example, the Statute of Frauds — to be in writing, or 
 not, may be executed by an agent verbally authorized, with 
 precisely the same effect as though the authority was in 
 
 1 Harshaw v. McKesson, 65 N. C. 688 ; Rowe v. Ware, 30 Ga. 278 ; Maus 
 V. Worthing, 3 Scam. 26 ; Rhode v. Louthain, 8 Blackf. 413 ; MoMurtry v. 
 Prank, 4 T. B. Monr. 39 ; Mitchell v. Sproul, 5 J. J. Mar. 264 ; Wheeler v. 
 Nevins, 34 Maine, 54 ; Baker v. Freeman, 35 Maine, 485 ; Shuetze v. Bailey, 
 40 Misso. 69; Smith v. Perry, 5 Butcher, 74; Kime v. Brooks, 9 Ire. 218; 
 Gage V. Gage, 10 Post. N. H. 420; Butterfield v. Beall, 3 Ind. 203; Cain v. 
 Heard, 1 Coldw. 163 ; Hanford v. McNair, 9 Wend. 54 ; Gordon v. Bulkeley, 
 14 S. & K. 331 ; Blood v. Goodrich, 9 Wend. 68 ; Cooper v. Eankin, 5 Binn. 
 613; Banorgee v. Hc|vey, 5 Mass. 11; Spurr v. Trimble, 1 A. K. Mar. 278; 
 Worrall v. Munn, 1 Selden, 229; Tappan v. Kedfield, 1 Halst. Oh. 339; Smith 
 ■u. Dickinson, 6 Humph. 261 ; Berkeley v. Hardy, 8 D. & R. 102, 5 B. & C. 
 355. 
 
 2 Ante, § 16, 17, 168 ; Harshaw v. McKesson, 65 N. C. 688 ; Ball ». Dunste> 
 ville, 4 T. R. 313 ; Mackay v. Bloodgood, 9 Johns. 285. \\ W *w<\ — 
 
 3 Ante, ? 315; Stow v. Wyse, 7 Conn. 214. 
 
 * See, for illustration, Burrill v. Nahant Bank, 2 Met. 163. 
 116 
 
CONTRACTING THROUGH AGENTS. § 335 
 
 writing.^ The authority may even he inferred from circum- 
 stances.^ 
 
 § 331. Who may he Agent: — 
 
 Not Insane Person. — An insane person cannot be an 
 agent,^ because incapable either of exercising a disjjretion or 
 following instructions. But — 
 
 § 332. Any Capable Person — (Married Woman — 
 Minor). — Any capable person may be ;* as, 2, feme covert^ 
 or a minor.^ The civil disabilities do not disqualify. 
 
 § 333. Functions compatible and incompatible : — 
 
 Agent for Two or More. — One may be an agent for two 
 or more persons, when not required to do incompatible 
 things;^ as — 
 
 § 334. Auctioneer — Broker. — An auctioneer, who is 
 the agent of the seller, becomes also the agent of the buyer 
 whose bid he accepts, to the extent that he can make for 
 both parties the memorandum required by the Statute of 
 Frauds.^ And it is the same with a broker.^ But — 
 
 § 335. Party, and Agent for Opposite Party. — One 
 cannot be both a party and agent for the opposite party ; 
 
 ' Heard v. Pilley, Law Eep. 4 Ch. Ap. 548 ; Long «. Hartwell, 5 Vroom, 116 ; 
 Terby v. Grigsb'y, 9 Leigh, 387 ; Emerson v. Providence Hat Manuf. Co., 12 
 Mass. 237, 240; Shaw v. Nudd, 8 Pick. 9; Small v. Owings, 1 Md. Ch. 363; 
 Deverell v. Bolton, 18 Ves. 605, 509 ; Mortlock 0. Buller, 10 Ves. 292, 311 ; 
 Kemeys t>. Proctor, 3 Ves. &. B. 57 ; Emmerson v. Heelis, 2 Taunt. 38 ; Eucker 
 V. Cammeyer, 1 Esp, 105 ; Coles v. Trecothick, 7 Ves. 234, 250. 
 
 2 Truudy v. Earrar, 32 Maine, 225. 
 
 = Story Agency, g 7. 
 
 "■ Lea V, Bringier, 19 La. An. 197. 
 
 s 1 Bishop Mar. Women, g 701; 2 lb., g 400-414; Hopkins v. MoUinleux, 4 
 "Wend. 465 ; Singleton v. Mann, 8 Misso. 464 ; Butler v. Price, 110 Mass. 97. 
 
 8 Talbot V. Bowen, 1 A. K. Mar. 436. 
 
 ' Hinckley v. Arey, 27 Maine, 362 ; Scott v. Mann, 36 Texas, 157 ; Oottom 
 V. Holliday, 59 111. 176. See Walker v. American National Bank, 49 N. Y. 659. 
 
 8 Simon v. Motives, 3 Bur. 1921, 1 W. Bl. 599 ; Eairbrother 0. Prattent, 
 Dan. 64 ; Kemeys v. Proctor, 3 Ves. & B. 57 ; Emmerson v. Heelis, 2 Taunt. 38 ; 
 Walker v. Herring, 21 Grat. 678; White v. Proctor, 4 Taunt. 209; Pike v. 
 Balch, 88 Maine, 802 ; Horton v. McCarty, 53 Maine, 394. 
 
 * Eucker v. Cammeyer, 1 Esp. 105. 
 
 117 
 
§ 339 LAW OF contracts". 
 
 as, to sign for the latter, as well as himself, the memo- 
 randum required by the Statute of Frauds. ^ And, though 
 he is an auctioneer, if he is selling goods in which he has an 
 interest, the rule is the same.^ Therefore, also, — 
 
 § 336. Agent dealing with Self. — A factor or other 
 agent to sell cannot buy of himself the goods of his princi- 
 pal, which he has for sale.^ And, -r- 
 
 § 337. Agent for both Parties, with Discretion. — K 
 there is a discretion to be exercised in a dealing, the same 
 person cannot be the agent of both parties ; for it is incon- 
 sistent that a man should bargain with himself.* 
 
 § 338. Termination of the Agency: — 
 
 At Pleasure. — An agent may generally withdraw from 
 the service at pleasure ;^ though, if he thereby violates his 
 contract, he will be liable to the iDrincipal in damages.* In 
 like manner, as general doctrine, the principal may dis- 
 charge the agent at will.'' And he may even do it by parol, 
 though the agency is conferred by an instrument under 
 seal.^ Nor is the rule different, though, on the face of the 
 instrument, the authority to the agent is irrevocable.' 
 But,— 
 
 § 339. Interest in the Agent. — If the agent has a pecu- 
 niary interest of his own in the execution of the agency, — 
 
 1 Sharman v. Brandt, Law Eep. 6 Q. B. 720. 
 
 2 Bent V. Cobb, 9 Gray, 397. 
 
 » KeigWer v. Savage Manuf. Co., 12 Md. 383 ; Martin u. Moulton, 8 N. H. 
 504; Scott c. Mann, 36 Texas, 157; ante, g 250, 251. 
 
 * Ex parte Bennett, 10 Ves. 381 ; Copeland o. Mercantile Ins. Co., 6 Pick. 
 198, 204 ; Utica Ins. Co. u. Toledo Ins. Co., 17 Barb. 132 ; New York Central 
 Ins. Co. V. National Protection Ins. Co., 4 Kernan, 85. 
 
 ^ Coffin V. Landis, 5 Philad. 176 ; Conrey v. Brandegee, 2 La. An. 132. See 
 post, I 682. 
 
 * Story Agency, ^ 478 ; United States v. Jarvis, Daveis, 274. 
 
 ' Smart v. Sandars, 3 C. B. 380; Trumbull v. Nicholson, 27 HI. 149 ; Brook- 
 sbire ». Voncannon, 6 Ire. 231. 
 
 8 Brookshire v. Brookshire, 8 Ire. 74 ; Blackstone v. Buttermore, 3 Smith, 
 Pa. 266. 
 
 ' MacGregor v. Gardner, 14 Iowa, 326. 
 118 
 
CONTRACTING THROUGH AGENTS. § 341 
 
 as, "where by letter of attorney he is to sell property of the 
 principal's, or where he is to collect money due the princi- 
 pal, and, in either case, is to reserve out of what he receives 
 payment for a debt which the principal owes him ; or, if 
 his interest is in the thing itself to which the agency 
 relates, — as, where he is mortgagee under a power of sale 
 mortgage (such agency being termed, when of the latter 
 sort, and by some also when of the former, an agency 
 coupled with an interest), — the principal cannot revoke it 
 to the injury of the agent, who, in spite of an attempted 
 revocation, may, for his own protection, still perform the 
 act.^ 
 
 § 340. Death. — The death of either party terminates the 
 agency ; ^ that of the agent, because a dead man can perform 
 no act ; that of the principal, because his earthly existence 
 has ceased, and in the nature of things there can be no 
 agent without a principal.^ Even — 
 
 § 341. Unknown to Agent. — Though the death of the 
 principal is unknown to the agent, so that the latter executes 
 in good faith what he believes to be a continuing agency, 
 such execution is void.* But, — 
 
 ' Hunt V. Eousraanier, 8 Wheat. 174 ; Varnum v. Meserve, 8 Allen, 158 ; 
 Watson V. King, 4 Camp. 272 ; Gaussen «. Morton, 10 B. & C. 731 ; Bromley 
 V. Holland, 7 Ves. 328; Smart v. Sandars, 3 0. B. 380; Hutchins v. Hebbard, 
 34 N. Y. 24; Wheeler v. Knaggs, 8 Ohio, 169, 172; Marziou v. Poiche, 8 Cal. 
 522 ; Posten v. Rassette, 5 Cal. 467 ; Hynson v. Noland, 14 Ark. 710 ; Barr v. 
 Schroeder, 32 Cal. 609 ; Bonney v. Smith, 17 111. 531 ; Hartley's Appeal, 3 
 Smith, Pa. 212 ; Blackstone v. Buttermore, 3 Smith, Pa. 266. 
 
 2 See ante, g 255. 
 
 ' Saltmarsh v. Smith, 32 Ala. 404 ; Boone v. Clarke, 3 Cranch C. C. 389; 
 Scruggs V. Driver, 31 Ala. 274 ; McDonald v. Black, 20 Ohio, 185 ; Michigan 
 Ins. Co. V. Leavenworth, 30 Vt. 11 ; Gale v. Tappan, 12 N. H. 145. 
 
 " Davis o. Windsor Savings Bank, 46 Vt. 728 ; Gait v. Galloway, 4 Pet. 
 332, 344 ; Bank of Washington v. Brent, 2 Cranch C. C. 685 ; Travers v. Crane, 
 15 Cal. 12 ; Wilson v. Edmonds, 4 Tost. N. H. 517 ; Eigs v. Cage, 2 Humph. 
 350 ; Peries v. Aycinena, 3 Watts & S. 64 ; Lewis v. Kerr, 17 Iowa, 73 ; 
 Cleveland v. Williams, 29 Texas, 204 ; Blades v. Clark, 9 B. & C. 167 ; Smout 
 V. Hbery, 10 M. & W. 1. 
 
 119 
 
§ 343 LAW OF CONTEACTS. 
 
 §342. Coupled with Interest. — If the agency is coupled 
 with an interest, as already explained,^ the death cannot, on 
 just principles, take from the agent his rights. Still, in a 
 court of law, it will necessarily be held to terminate the 
 agency, notwithstanding the interest, in all those circum- 
 stances in which the act of agency can be performed only in 
 the name of the principle ; for, exclaimed Lord EUenborough, 
 ' ' How can a valid act be done in the name of a dead man ? " ^ 
 But where, by the rules of law, the agency can be executed 
 in the agent's own name, — as, where he has a general or 
 special ownership in the thing, — death, the agency being 
 thus coupled with an interest, does not end the agent's 
 power. And in other circumstances equity ought to furnish 
 relief, thoiigh it is difficult to say on the authorities when it 
 will : thus, if A, who has agreed to sell land to B, dies, 
 equity will compel B's heirs to fulfill the agreement;^ in 
 like manner, if, for a valuable consideration, A had given 
 B a power of attorney to convey the land, equity should, as 
 a question of just legal principle, compel B's heirs to renew 
 the power, or make the conveyance to the person designated 
 by A.* 
 
 § 343. Other Methods. — There are other methods of 
 terminating au agency ; as, performance by the agent,* the 
 conveying away, by the principal, of the thing to which 
 the agency relates,® the bankruptcy of the principal," his 
 
 1 Ante, ? 339. 
 
 2 Watson V. King, 4 Camp. 272, 274. 
 
 = 1 Story Eq. Jur. ? 788, 789; Barnard v. Macy, 11 Ind. 636; Newtoni). 
 Swazey, 8 N. H. 9 ; Tilton v. Tilton, 9 N. H. 385 ; Hill v. Eessegieu, 17 Barb. 162. 
 
 * On the entire subject of this section, consult Stow Agency, g 483, 488- 
 490 ; Hunt v. Rousmanier, 8 Wheat. 174 ; Lepard v. Vernon, 2 Ves. & B. 51 ; 
 Varnum v. Meserve, 8 Allen, 158 ; McGriff «. Porter, 5Pla. 373 ; Houghtaling 
 ■V. Marvin, 7 Barb. 412 ; Bergen v. Bennett, 1 Gaines Cas. 1 ; Robertson v. 
 Paul, 16 Texas, 472; Buchanan v. Monroe, 22 Texas, 537; Van Bergen v. 
 Demarest, 4 Johns. Ch. 37 ; Speer v. Hadduok, 31 HI. 439. 
 
 5 Antoni v. Belknap, 102 Mass. 193. 
 
 8 Trumbull v. Nicholson, 27 III. 149. 
 
 ' Story Agency, § 482. 
 120 
 
CONXRACXING XHROUGH AGENXS. § 349 
 
 insanity or the agent's,^ where the agency is not coupled 
 with an interest ; but these and yet other obvious methods 
 need not be dwelt upon further. 
 
 II. The Express and Implied Powers of the Agent. 
 
 § 344. Express. — When an agent is instructed in express 
 words, requiring no interpretation, no question can arise as 
 to his powers. But not often, in the transactions of life, is 
 he thus instructed ; even where his authority is in writing, 
 more or less is generally left to implication. Therefore this 
 sub-title chiefly concerns powers which are — 
 
 § 345. Implied. — The implications are derived either 
 from the words employed, or from the nature of the agency. 
 
 § 346. Implications from the Words conferring the Au- 
 thority : — 
 
 Carry out what Is Expressed. — The law implies what- 
 ever is necessary to the power expressed. For example, — 
 
 § 347. From Authority to Sell. — If a letter of attorney 
 authorizes one to sell real estate and receive the purchase 
 money, he can, therefore, execute the proper instruments 
 of conveyance; for, without them, a sale cannot be made 
 complete, and the money received.^ And the power to seU 
 a manufactured article carries with it the power to warrant 
 the quality.^ So — 
 
 § 348. From Authority to Purchase. — A power to pur- 
 chase goods necessarily implies an authority to direct as to 
 their delivery.* Yet — 
 
 § 349 . Submit to Arbitration. — An agent to settle 
 
 ' Davis V. Lanej 10 N. H. 156 ; Story Agency, ^ 481, 487. 
 
 2 Valentine v. Piper, 22 Pick. 85. And see HoUaday v. Daily, 19 Wal. 606 ; 
 Lumpkin v. Wilson, 5 Heisk. 555 ; Dupont v. Wertheman, 10 Cal. 354 ; Borel 
 V. KoUins, 30 Cal. 408 ; Heath v. Nutter, 50 Maine, 378 ; Watts's Appeal, 28 
 Smith, Pa. 370. 
 
 ' Boothhy v. Scales, 27 Wis. 626. 
 
 * Owen V. Brockschiliidt, 54 Misso. 285. 
 
 121 
 
§ 352 LAW OP CONTRACTS. 
 
 claims against his principal cannot, therefore, submit them 
 to arbitration.^ 
 
 § 350. Implications from the Nature of the Agency : — 
 Delegate to Sub-agent, or not. — Whenever there is a 
 discretion in the agent, the agency is a personal trust, and 
 he cannot delegate it to another.^ But a merely ministerial 
 power may be delegated.* 
 
 § 351. Kind of Agency — (Broker — Factor — Auction- 
 eer.) — The powers of the agent often depend on the sort of 
 agency in which he is engaged. Thus, if a broker is em- 
 ployed to sell goods, he must sell them as the principal's, 
 and at private sale, not at auction ; nor has he any implied 
 authority even to receive payment for what he sells.* But 
 a factor, thus employed, usually takes the goods into his 
 own possession ; he has then a special property in them, he 
 may sell them if he chooses in his own name, at private 
 sale, not at auction; and, if he pleases, on credit.^ An 
 auctioneer sells at auction.* _ 
 
 m. The Execution of the Contract hy the Agent. 
 
 § 352. Distinctions. — The manner of executing con- 
 tracts by agents diflPers in some degree with the sort of con- 
 tract and the subject to which it relates. 
 
 ' Michigan Central Eailroad ». G-ougar, 56 HI. 503. 
 
 ^ Grady v. American Cent. Ins. Co., 60 Misso. 116 ; Brewster v. Hobart, 15 
 Pick. 302 ; Emerson v. Providence Hat Manuf. Co., 12 Mass. 237 ; Paul v. 
 Edwards, 1 Misso. 30 ; Hunt «. Douglass, 22 Vt. 128 ; "Warner v. Martin, 11 
 How. U. S. 209, 224 ; Loomis v. Simpson, 13 Iowa, 532. 
 
 ' Grady D. American Cent, Ins. Co., supra; Ex parte Sutton, 2 Cox, 84; 
 Commercial Bank v. Norton, 1 Hill, N. Y. 501 ; Grinnell v. Buchanan, 1 Daly, 
 538 ; Eldridge v. Holway, 18 HI. 445. 
 
 ^ Ante, g 321 ; Higgins v. Moore, 34 N. T. 417. 
 
 s Ante, \ 320; West Boylston Manuf. Co. u. Searle, 15 Pick. 225 ; Goodenow 
 V. Tyler, 7 Mass. 36; Goldthwaite v. McWhorter, 5 Stew. & P. 284; Byrne ». 
 Schwing, 6 B. Monr. 199. 
 
 « Ante, g 322. 
 122 
 
CONTRACTING THROUGH AGENTS. § 354 
 
 § 353. Specialties. — If the contract is under seal, and 
 the words of covenant, grant, or the like are on the face 
 of it the agent's, and the seal purports to be his, the instru- 
 ment will bind him personally, though he describes himself 
 therein as agent, and adds the word ' ' agent ' ' to his signa- 
 ture ; and it will not bind the principal. To have the latter 
 effect, it must appear strictly on its face to be the princi- 
 pal's, and the seal must purport to be his ; and then the 
 agent will not be personally bound.^ "If," says Metcalf, 
 "it be executed in the principal's name, it is not material 
 by what form of words such execution is denoted ; whether 
 it be « for A B, C D,' or 'A B by C D his attorney,' or « C 
 D attorney for A B.' " ^ And, in strict law, it is probably 
 sufficient for the agent to affix the principal's name and seal, 
 or even the seal alone, ^ without writing his own name.* 
 
 § 354. Simple Contracts: — 
 
 Commercial TJsagre. — ' ' The law of merchants is part 
 of the law of the land." *• And this law, much erf which is 
 of modem growth, regards, in general, the substance of a 
 transaction rather than its formalities. Combining with 
 certain principles, not all of which are recognized as appli- 
 
 1 Berkeley v. Hardy, 8 D. & K. 102, 5 B. & C. 365; Appleton v. Binks, 5 
 East, 148; Carter v. Chaudron, 21 Ala. 72; Echols «. Cheney, 28 Cal. 157; 
 Morrison v. Bowman, 29 Cal. 337 ; Bogart v. De Bussy, 6 Johns. 94 ; Locke v. 
 Alexander, 1 Hawks, 412 ; The State v. Jennings, 5 Eng. 428 ; Palmer v. Ees- 
 pass, 5 T. B. Monr. 562 ; Pryor v. Coulter, 1 Bailey, 517 ; Barger v. Miller, 4 
 "Wash. C. C. 280; Eedmond v. Coffin, 2 Dev. Bq. 437; Grubbs v. Wiley, 9 
 Sm. & M. 29; Martin v. Flowers, 8 Leigh, 158 ; Love v. Sierra Nevada Lake 
 Water, etc., Co., 32 Cal. 639. But see Rogers «. Bracken, 15 Texas, 564; 
 Rogers v. Frost, 14 Texas, 267. 
 
 ' Met. Con. 105, referring to Combes's Case, 9 Co. 75 a, 76 ; WJlks v. Back, 
 2 East, 142; Elwell v. Shaw, 16 Mass. 42, 1 Greenl. 339 ; Fowler v. Shearer, 7 
 Mass. 14; Brinley v. Mann, 2 Cush. 337; Mussey v. Scott, 7 Gush. 215; Jones 
 V. Carter, 4 Hen. & Munf. 184 ; Wilburn v. Larkin, 3 Blackf. 55 ; Hunter v. 
 Miller, 6 B. Monr. 612 ; Eckhart v. Reidel, 16 Texas, 62. 
 
 ' Ante, 2 17. 
 
 * Devinney v. Reynolds, 1 Watts & S. 328. 
 
 * Lord Kenyon in Harrison v. Jackson, 7 T. R. 207, 210. 
 
 123 
 
§ 356 LAW OF CONTRACTS. 
 
 cable to sealed instruments, it has, step by step, proceeded 
 to the establishment of rules quite unlike the foregoing, for 
 all contracts, whether oral or written, not under seal. 
 Thus, — 
 
 § 355. The Principles. — 1. All acquisitions which an 
 agent makes in his agency, beyond his compensation, belong 
 to the principal.^ Hence, — 
 
 2. If an agent, acting in his agency, obtains a contract, 
 though in his own name, the contract interest is the princi- 
 pal's.^ 
 
 3. While, on the one hand, a principal may thus take the 
 avails of a contract made by his agent, though in the agent's 
 name ; he must also, on the other hand, bear its burdens, 
 being responsible for the agent's acts.^ 
 
 4. The right to maintain a suit at law follows a legal 
 interest.* 
 
 5. A written contract cannot be contradicted by oral 
 evidence.* 
 
 From these propositions we derive the following results : — 
 § 356. Who sue and he sued. — If A and B are prin- 
 cipals, and X is the agent of A, and Y the agent of B, — 
 then, if X and Y, each acting in his agency, but not dis- 
 closing it to the other, make a contract, whether oral or 
 written, each is holden to the other ; for so each understood 
 it, and such are its terms. But the law has vested in A the 
 apparent interest of X, and in B the apparent interest of Y ; 
 therefore, also, A is holden to B, and B is holden to A ; for 
 such is the legal effect of the transaction. Still further, 
 each principal may stand, if he chooses, or be placed, if the 
 
 1 Lafferty v. Jelley, 22 Ind. 471 ; Denson v. Stewart, 15 La. An. 456. 
 
 ' Messier v. Amery, 1 Yeates, 533 ; Von Hurter v. Spengeman, 2 0. E. Green, 
 185 ; Audenried v. Betteley, 8 Allen, 302 ; Damon v. Osborn, 1 Pick. 476, 481. 
 
 ' Bast India Co. v. Hensley, 1 Esp. 112 ; Elwell v. Chamberlin, 31 N. T. 611. 
 
 * Heald v. "Warren, 22 Vt. 409 ; Townsend v. Townsend, 5 Harring. Del. 127. 
 And see Stoddard v. Mix, 14 Conn. 12. 
 
 5 Ante, ? 58. 
 
 124 
 
CONTRACTIN» THROUGH AGENTS. § 357 
 
 Other chooses, in the shoes of his agent ; so that A may sue- 
 either B or Y, and B may sue either A or X. Again, X, if 
 his priuciiial does not interfere, may sue either B or Y ; and 
 Y, if his principal does not object, may sue either A or X. 
 Other deductions will appear further on ; but we shall first 
 proceed to some propositions established by the courts, 
 within these deductions. 
 
 § 357. Agent holden. — If the agent does not disclose 
 his agency, or if he mentions it in mere general terms but 
 does not name his principal ,i or if his principal resides \ 
 abroad,^ the agent will, in the absence of any contrary show- 
 ing, be bound as on his own personal contract. Or, if an 
 agent executes a written contract in his own name, he will 
 be bound by its terms, if adequate, though he is known to 
 be acting as agent ; and the mere appending of the word 
 " agent " to his signature will not save him.^ But, — 
 
 1 Merrill v. Wilson, 6 Ind. 426 ; "Wheeler v. Eeed, 36 111. 81 ; Pierce v. John- 
 son, 34 Conn. 274; Mithoff v. Byrne, 20 La. An. 363 ; McClellan v. Parker, 27 
 Misso. 162 ; MoComb v. "Wright, 4 Johns. Ch. 659 ; Forney v. Shipp, 4 Jones, 
 N. C. 527 ; Meyer v. Barker, 6 Binn. 228 ; Davenport v. Biley, 2 MoCord, 
 198; Conyers v. McGrath, 4 McCord, 392; Bacon v. Sondley, 3 Strob. 542; 
 Boyce v. Allen, 28 "Vt 234; Baldwin v. Leonard, 39 "Vt. 260. 
 
 ' Elbinger Actien-Gesellschaft v. Claye, Law Eep. 8 Q. B. 313 ; Armstrong 
 ». Stokes, Law Eep. 7 Q. B. 598, 605. It will bind the foreign principal, and 
 not the domestic agent, where such appears to have been the intention. Eogers 
 V. March, 33 Maine, 106 ; Bray v. Kettell, 1 Allen, 80. See, also, Hutton v. 
 Bulloch, Law Eep. 8 Q. B. 331, 9 Q. B. 572. 
 
 " Higgins V. Senio't, 8 M. & "W. 834 ; Sayre v. Nichols,' 5 Cal. 487 ; Hall v. 
 Cockrell, 28 Ala. 507 ; Andrews v. Allen, 4 Harring. Del. 452 ; Blckford o. 
 First National Bank, 42 111. 238; Doming v. Bullitt, 1 Blackf. 241; "Wiley v. 
 Shank, 4 Blackf. 420; Crum v. Boyd, 9 Ind. 289; Scott v. Messick, 4 T. B. 
 Monr. 535; McBean v. Morrison, 1 A. K. Mar. 545; Nugent v. Hickey, 2 La. 
 An. 358; Forster v. Fuller, 6 Mass. 5S; Thaeher v. Dinsmore, 5 Mass. 299; 
 Sumner v. Williams, 8 Mass. 162; Whiting v. Dewey, 15 Pick. 428; Hastings 
 c.Lovering, 2 Pick. 214; Stackpole v. Arnold, 11 Mass. 27; Mayhew v. Prince, 
 11 Mass. 54; Arfridson v. Ladd, 12 Mass. 173 ; Seaver v. Coburn, 10 Gush. 324; 
 Bass V. Eandall, 1 Minn. 404 ; Eollins v. Phelps, 5 Minn. 463 ; Bingham v. 
 Stewart, 13 Minn. 106 ; Fratt v. Beaupre, 13 Minn^ 187 ; Chouteau v. Paul, 3 
 Misso. 260 ; Sheldon v. Dunlap, 1 Harrison, 245 ; Stone v. Wood, 7 Cow. 453 ; 
 Bank of Eochester v. Monteath, 1 Denio, 402 ; Cabre v. Sturges, 1 Hilton, 160; 
 
 125 
 
§ 359 LAW OF CONTRACTS. 
 
 § 358. Not holden. — Where the execution of the instru- 
 ment is in such form that the agent would not be holden 
 were it under seal,^ and in various cases where he would, 
 but evidently on the face of it he was understood as acting 
 merely for his principal,^ he incurs no personal responsibility, 
 yet the principal will be bound as party.' 
 
 § 359. Principal holden — (Agent also). — Although, 
 where the principal and the agency are known when the con- 
 tract is made, both principal and agent will not be bound, 
 because then is the time for the other contracting party to 
 elect between them ; * yet, if such party does not then know 
 that he is dealing with an agent, or if the agent declines 
 to name the principal, he may, on learning the facts, hold 
 the latter as the party, if he chooses.* " For it is a general- 
 rule, that, whenever an express contract is made, an action 
 ' is maintainable upon it, either in the name of the person with 
 I whom it was actually made, or in the name of the person, 
 
 Blafcemau v. Mackay, 1 Hilton, 266; Collins v. Buckeye Ins. Co., 17 Ohio 
 State 215 ; Fash v. Koss, 2 Hill, S. C. 294 ; Hodges v. Green, 28 Vt. 858 ; Allen 
 V. Pegram, 16 Iowa, 163 ; Steele v. McElroy, 1 Sneed, Tenn. 341 ; McWilliama 
 0. "Vfillis, 1 "Wash. Va. 199. 
 
 1 Ante, 2 353. 
 
 2 McCall V. Clayton, Busbee, 422 ; Smith v. Alexander, 31 Misso. 198 ; Detroit 
 V. Jackson, 1 Doug. Mich. 106; Many v. Beekman Iron Co., 9 Paige, 188; 
 Traynham v. Jackson, 15 Texas, 170 ; Eastern Eailroad v. Benedict, 5 Gray, 
 561; Sayre v- Nichols, 7 Cal. 535; Seery v. Socks, 29 111. 313; Ogden v. Ray- 
 naond, 22 Conn. 379 ; Baker v. Chambles, 4 Greene, Iowa, 428 ; Tuttle v. Ayres, 
 2 Penning. 682 ; Shotwell v. McKown, 2 Southard, 828 ; Kathbon v. Budlong, 
 15 Johns. 1 ; Meadows v. Smith, 12 Ire. 18 ; Powell v. Pinch, 5 Yerg. 446 ; 
 Hall v.. Huntoon, 17 Vt. 244 ; Harkins v. Edwards, 1 Iowa, 426 ; Eogers v. 
 March, 33 Maine, 106; Bank of Cape Pear u. Wright, 8 Jones, N. C. 876; 
 Abbott V. Cobb, 17 Vt. 593. 
 
 ' Lyon V. Williams, 5 Gray, 557. 
 
 ' Post, I 364 ; Coxe v. Devine, 5 Harring. Del. 375 ; Paterson v. Gandasequi, 
 15 East, 62. 
 
 5 Thomson v. Davenport, 9 B. & C. 78, 2 Smith Lead. Cas. 212, and see Mr. 
 Smith's note ; Kaymond u. Crown and Eagle Mills, 2 Met. 319 ; Prench v. 
 Price, 24 Pick. 13 ; Violett v. Powell, 10 B. Monr. 347 ; Hubbert v. Borden, 6 
 Whart. 79 ; Higgins v. Senior, 8 M. & W. 834 ; Beckham v. Drake, 9 M. & 
 W. 79; Briggs v. Partridge, 64 N. Y. 357; post, § 394. 
 126 
 
CONTRACTING THROUGH AGENTS. § 362 
 
 with whom, in point of law, it was made." ^ On the other 
 hand, — 
 
 § 360. Principal sue on Agent's Contract. — The prin- 
 cipal can, if he chooses, maintain an action in his own name 
 on a contract which thus, he being unknown, his agent has 
 made for him in the agent's name, whether oral or in 
 writing ; and there is some reason, while also there is some 
 authority, for saying that this is so even though he was 
 known to the other contracting party at the making of the 
 contract.^ But — 
 
 § 361. Agent sue. — ^The agent, also, if the principal 
 does not interfere, may sue, in his own name, on a contract 
 which he has thus made in his own name ; yet not on one in i 
 the name of his principal.' 
 
 § 362. Rights of Third. Persons, etc. — These doctrines 
 are not carried to the extent of interfering with the legal 
 and equitable rights of any persons. Though the principal 
 sues or is sued in his own name, third persons, the agents, 
 and the parties will have all their just claims, whether legal 
 or equitable, respected, — too numerous to be here particu- 
 larized.* 
 
 1 Cothay v. Fennell, 10 B. & C. 671, 672. 
 
 2 Brooks V. Mintum, 1 Cal. 481 ; Eastern Bailroad v. Benedict, 5 Gray, 561 ; 
 Machias Hotel v. Coyle, 35Mame, 405; Barry v. Page, 10 Gray, 398; Ford 
 V. Williams, 21 How. TJ. S. 287 ; New Jersey Steam Navigation Co. v. Mer- 
 chants' Bank, 6 How. IT. S. 344, 381 ; Euiz v. Norton, 4 Cal. 355 ; Woodruff d. 
 McGehee, 30 Ga. 158 ; Oelrichs v. Ford, 21 Md. 489 ; Ames v. St. Paul, etc., 
 Eailroad, 12 Minn. 412 ; Elkins v. Boston, etc., Railroad, 19 N. H. 337 ; Taintor 
 V. Prendergast, 3 Hill, N. Y. 72 ; Van Lien v. Bjrrnes, 1 Hilton, 133 ; Erickson 
 V. Compton, 6 How. Pr. 471 ; Merrick's Estate, 2 Ashm. 485 ; Huntington v. 
 Knox, 7 Cush. 371 ; Gilpin v. Howell, 5 Barr, 41. 
 
 » Oolbum V. Phillips, 13 Gray, 64; Sharp v. Jones, 18 Ind. 314; Ackerman 
 V. Cook, 34 Missis. 262 ; Crosby v. Watkins, 12 Cal. 85 ; Devers v. Becknell, 1 
 Misso. 333; Gunn v. Cautine, 10 Johns. 387; Brackney v. Shreve, Coxe, 33; 
 Coggburn v. Simpson, 22 Misso. 351 ; Doe v. Thompson, 2 Post. N. H. 217. 
 
 * Merrick's Estate, 2 4.shm. 485 ; Foster v. Smith, 2 Coldw. 474 ; Waring 
 V. Favenck, 1 Camp. 85 ; Kymar v. Suwercropp, 1 Camp. 109 ; Thomson v. 
 Davenport, 9 B. & C. 78 ; Smyth v. Anderson, 7 C. B. 21, 39 ; Violett v. Powell, 
 
 127 
 
§ 364 LAW OF CONTKACTS. 
 
 § 363. Express Words of Contract — (Parol Evidence). — 
 
 It is competent for the parties to vary the foregoing results 
 by express words in their written contract, and the words 
 cannot be contradicted by oral evidence.^ Where it is in 
 the ordinary terms of such an instrument between princi- 
 pals, no contradiction of its words is involved in receiving 
 oral proof of the agency, and thus permitting the real prin- 
 cipals to sue and be sued upon it. This " does not," said 
 Parke, B., " deny that it is binding on those whom, on the 
 face of it, it purports to bind ; but shows that it also binds 
 another, by reason that the act of the agent, in signing the 
 agreement, in pursuance of his authority, is in law the act 
 of the principal. ' ' ^ But where, in a charter-party, the agent 
 declared himself to be the "owner " of the vessel, the court 
 held that parol evidence was not admissible to prove this 
 declaration false, and so let in the true owner, being the 
 real principal, to be the party to a suit.^ 
 
 § 364. ISTot both Agent and Principal. — As already 
 intimated,* the principal and agent are neither joint nor 
 several contractors, nor is the one a surety for the other; 
 I but, where the election to make either the principal or the , 
 I agent a party in the suit is permitted, it is because the agent 
 ^ is the party in fact, and the principal is the party in law.) 
 Therefore, when, with knowledge of the facts, the opposite 
 party has made his choice, he is bound by it ; and he cannot 
 proceed either jointly or severally against both, or, discon- 
 tinuing proceedings against one, hold the other.* Still, — 
 
 10 B. Monr. 347 ; Burnham «. Holt, 14 N. H. 367 ; Kelley v. Munson, 7 Mass. 
 319 ; Kingman v. Pierce, 17 Mass. 247 ; Merrill v. Bank of Norfolk, 19 Pick. 
 32; Selkirk v. Cobb, 13 Gray, 313; Prazier v. Erie Bank, 8 "Watts & S. 18; 
 Hall V. Williams, 27 Vt. 405. \ 
 
 1 Ante, ? 355. 
 
 ^ Higgins V. Senior, 8 M. & "W. 834, 844. 
 
 » Humble v. Hunter, 12 Q. B. 310, 316. 
 
 * Ante, ? 359. 
 
 ' Smith Con. 2d Eng. ed. 320 et seq., and cases there cited; namely, Pater- 
 
 128 
 
CONTEACTING THROUGH AGENTS. § 368 
 
 § 365. Custom of a Trade. — "By the custom of the 
 particular trade," observes Pollock, "the agent may be 
 treated as a contracting party, and personally bound, as 
 well as his principal."^ Finally, — 
 
 § 366. Government Agent. — Aa agent for the govern- 
 ment, though he contracts in his own name, is not personally 
 holden, but the principal is bound. ^ 
 
 § 367. Concevning the Authorities. — On the subject of 
 this sub-title, there is some difference between the earlier 
 and later decisions ; and, even among the later, some real 
 or apparent conflict. While, therefore, the foregoing doc- 
 trines are all well established, at least in the modern law, 
 there may be dicta, and perhaps adjudications, to be found 
 in the books contrary to some of them, or qualifying them. 
 Possibly slight qualifications, at one or two points, may 
 properly be admissible ; yet none of much importance. A 
 minuter delineation .would not accord with the plan of this 
 work. 
 
 rV". Filling Blanks. 
 
 § 368. Distractions. — The doctrine of- the execution of 
 instruments in blank, and the filling of the blanks by agents, 
 is not alike in simple contracts and specialties.^ And the 
 rules as to both derive some apparent modifications from 
 the doctrine of estoppel. The cases are in some conflict, 
 particularly as to the filling of blanks in deeds ; but the 
 principles on which they ought to proceed are plain. 
 
 son v. G-andasequi, 15 East, 62 ; Addison v. G-andasequi, 4 Taunt. 573 ; Thomson 
 V. Davenport, 9 B. & C. 78. The facts of these cases do not cover all the 
 ground of the propositions in the text, which I have purposely made as broad 
 as the principle on which they rest. 
 
 1 Pollock Con. 431, referring to Humfrey v. Dale, 7 Ellis & B. 266 : Dale v. 
 Humfrey, Ellis, B. & E. 1004 ; Fleet v. Murton, Law Eep. 7 Q. B. 126, 129 ; 
 and Hutchinson v. Tatham, Law Eep. 8 C. P. 482. 
 
 ' Macbeath v. Haldimand, 1 T. E. 172 ; Hodgson v. Dexter, 1 Cranch, 345. 
 
 3 In re Tahiti Cotton Co., Law Eep. 17 Eq. 278. 
 
 129 
 
§ 370 LAW OF CONTKACTS. 
 
 §369. In Specialties: — 
 
 Wlien certainly good. — If an instrument under seal is 
 signed and sealed, but not delivered, with blanks for the 
 names of parties, sums, description of the premises, or the 
 like, the blanks may be filled by any person in the presence 
 of the maker, with his authority, though only verbal, ^ — or, 
 in his absence, with his authority under seal,^-^and, on its 
 delivery, it will be equally good as if they had been filled 
 before sealing.' And, within this doctrine, an agent author- 
 ized under seal, or the party himself, may fill the blank and 
 redeliver the instrument, after it has been delivered.* But 
 a redelivery is necessary.^ Again, as the mere date is not 
 an essential part,* plainly a blank for it may at any time be 
 filled, in the absence of the maker, by parol authority.' 
 But, beyond this, the right to fill blanks in specialties does 
 not, in principle, extend; and such also are the prevailing 
 adj udications . Thus , — 
 
 § 370. lilmit of the Doctrine. — As the authority of an 
 agent to execute a sealed instrument in the absence of the 
 principal must be under seal,* and as the blanks — for 
 example, where the name of the grantee is in blank' — . 
 leave the writing a nullity though formally sealed and de- 
 livered, the English^" and better American" doctrine holds, 
 
 1 Ante, ? 168, 328. 
 
 2 Ante, I 327. 
 
 » Parry v. Dale, Yelv. 95, 96, and Metoalf's note. 
 
 * See Gibbs v. Frost, 4 Ala. 720. 
 
 » MoNutt V. McMahan, 1 Head, 98. 
 
 6 Ante, I 19. 
 
 ' See, Whiting v. Daniel, 1 Hen. & Munf. 891 ; Bell v. Quick, 1 Green Ch. 
 312 ; Pournier v. Cyr, 64 Maine, 32 ; Commonwealth Bank u. McChord, 4 
 Dana, 191. 
 
 8 Ante, I 327. 
 
 9 "Wunderlin v. Cadogan, 50 Oal. 613 ; Preston v. Hull, 23 Grat. 600 ; ante, g 22. 
 
 •» In Burns v. Lynde, 6 Allen, 305, 307, et seq., the principal English authori- 
 ties are collected and considered ; as, Hibblewhite v. McMorine, 6 M. & "W. 
 200 ; Davidson v. Cooper, 11 M. & W. 778, 793. 
 
 " Burns u. Lynde, supra; Wunderlin v. Cadogan, supra; Preston v. Hull, 
 130 
 
CONTRACTING THROUGH AGENTS. § 373 
 
 that, therefore, what could not be originally made in whole 
 by an agent not authorized by seal cannot be made as to its 
 essential part. Still, — 
 
 § 371. Some Effect. — Though a sealed instrument, the 
 blanks of which have thus been filled by parol authority, is 
 not a specialty, it may have the effect of a simple contract 
 in writing ; the seal being deemed a mere excess of the 
 agent's power, and, as a seal, but no more, void."^ 
 
 § 372. In Simple Contracts: — 
 
 Always valid. — As any form of authority, oral or in 
 writing, express or implied,^ will sustain a simple contract 
 executed by the agent ; so any person thus authorized may 
 fill a blank in such contract. And where one, to charge 
 himself, signs a paper writing, with a blank in it evidently 
 meant to be filled, and delivers it to a third person, or in 
 general even to the party, an authority is implied in the 
 person to whom it is delivered to fill the blank.' But — 
 
 § 373. Alteration. — The act of filling the blank must 
 not extend to unauthorized- alterations of o^her parts of the 
 instrument, so as to change its legal effect. And, if the 
 holder of a blank bill of exchange thus converts it into a 
 promissory note, he thereby makes it void.* 
 
 supra ; Viser v. Kice, 33 Texas, 139 ; Cross v. State Bank, 5 Pik?, 525 ; Pennsyl- 
 vania Ins. Co. V. Dovey, 14 Smith, Pa. 260 ; Davenport v. Sleight, 2 Dev. & Bat 
 381 ; Byers v. McCIanahan, 6' G-ill & 3. 250. The reader will find various other 
 cases, on both sides of this question, in the digests. Those which have affirmed 
 the power which the text denies, proceed on an ignoring of the principle in- 
 volved. 
 
 1 McCown V. Wheeler, 20 Texas, 372; Viser v. Rice, 33 Texas, 139; Crozier 
 V. Carr, 11 Texas, 376 ; post, g 377. 
 
 2 Ante, g 330. 
 
 s In re Tahiti Cotton Co., Law Rep. 17 Eq. 273 ; Spitler v. James, 32 Ihd. 
 202 ; Commonwealth Bank v. McChord, 4 Dana, 191 ; Wiley v. Moor, 17 S. 
 &R. 438; Smiths. Crooker, 5 Mass. 538; Duncan v. Hodges, 4McCord, 239; 
 Jordan v. Neilson, 2 Wash. Va. 164 ; Boardman «. Gore, 1 Stew. 517 ; South 
 Berwick v. Huntress, 53 Maine, 89. 
 
 * Luellen v. Hare, 32 Ind. 211. And see Bainbolt v. Eddy, 34 Iowa, 440; 
 Arrington v. Burton, 19 Ala. 114. 
 
 131 
 
§ 376 LAW OF CONTRACTS. 
 
 § 374. Estoppel: — 
 
 In Oeneral. — There may be circumstances in which, 
 though the blanks have been unlawfully filled, the party 
 will by his conduct make the instrument binding upon him 
 under the doctrine of estoppel already considered.^ A mere 
 naked declaration of the principal, approving of what has 
 been done in filling the blanks in a specialty without sealed 
 authority, will not have this effect ; ^ but, it would seem in 
 principle, and probably it is the doctrine in authority, that, 
 if one has led another to suppose that the blanks in his 
 deed have been duly filled, and to act in a way to be 
 defrauded were this not so, he will be estopped to deny the 
 validity of the deed.' 
 
 V. The Agent departing from his Authority. 
 
 § 375. Must exactly pursue Authority. — Subject to the 
 rights of third persons, acquired by a sort of estoppel, an 
 agent binds his principal only when he pursues exactly the 
 authority conferred;* "although," adds Story, "a cir- 
 cumstantial variance in its execution will not defeat it."* 
 And, — 
 
 § 376. Exceeding Authority. — Should he do more than 
 he is authorized, this will not vitiate what is properly done, 
 if the two are separable ; otherwise, it will.® Thus, — 
 
 1 Ante, 1 126 et seq. 
 
 « Davenport v. Sleight, 2 Dev. & Bat. 381. 
 
 ' See, and compare, Khode v. Louthain, 8 Blackf. 413 ; Hill v. Scales, 7 Terg. 
 410; Byers v. MoOlanahan, 6 Gill & J. 250; Owen v. Perry, 25 Iowa, 412. 
 
 * Baxter i;. Lament, 60 lU. 237; Towle v. Leavitt, 3 Post. N. H. 360; Batty 
 ■u. Carswell, 2 Johns. 48; Allen v. Ogden, 1 Wash. 0. 0. 174; Nixon •». Hyse- 
 rott, 5 Johns. 58 ; Angel v. Pownal, 3 Vt. 461, 463 ; MoOonnell v. Bowdry, 4 T. 
 B. Monr. 392 ; Rawson u. Curtiss, 19111. 456 ; Hayden r. Middlesex Turnpike, 10 
 Mass. 897, 403 ; Adams v. Bourne, 9 Gray, 100 ; Howard v. Brainthwaite, 1 
 Tes. & B. 202. 
 
 ' Story Agency, ? 165 ; Boykin v. McLauchlin, 35 Ala. 286. 
 
 * Story Agency, g 166 ; Drumwright v. Philpot, 16 Ga. 424; Crozier v. Carr, 
 
 132 
 
CONTRACTING THEOUGH AGENTS. § 381 
 
 § 377. Seal or not. — A written authority, not under 
 seal, will not qualify the agent to execute a sealed instru^ 
 ment for his principal;^ but, should he do this, the seal 
 only, which is separable from the rest, is void, and the 
 instrument will take effect as a simple contract.^ Again, — 
 
 § 378. Authorized Sale and Unantliorized Covenants. — 
 If an agent makes an authorized sale, but adds unauthorized 
 covenants, the former will bind the principal, but the latter 
 will not. As, however, the purchaser can be compelled 
 only to what he agreed, he has his election, if the principal 
 will not ratify the covenants, either to affirm the sale without 
 them, or to reject the whole.' On the other hand, — 
 
 § 379. Unauthorized Credit. — A purchase of goods and 
 an actual or agreed payment for them are inseparable ; so 
 that, if a special agent to buy them is provided with the 
 money, but, contrary to instructions, he pledges his princi- 
 pal's credit for them, the latter is to no extent whatever 
 bound.* Likewise, — 
 
 § 380. Price limited. — If a special agent is authorized 
 to sell land or goods at a fixed price, yet, in violation of 
 instructions, sells at a different price, he does not bind the 
 principal.* 
 
 §381. Agency general or special. — The distinction 
 
 11 Texas, 376; Moore u. Thompson, 32 Maine, 497; Jesup v. City Bank, 14 
 "Wis. 331. 
 
 1 Ante, 2 327. 
 
 » Ante, ^ 371 ; Morrow v. Higgins, 29 Ala. 448 ; Baum v. Dubois, 7 "Wright, 
 Pa. 260, 265 ; Long v. Hartwell, 5 Vroom, 116 ; Button v. Warschauer, 21 Cal. 
 609; Worrall v. Munn, 1 Selden, 229; "Wood c. Auburn, etc., Kailroad, 4 
 Selden, 160. 
 
 3 Vanada i>. Hopkins, 1 J. J. Mar. 285; Smith v. Tracy, 36 N. Y. 79. And 
 see Brady v. Todd, 9 C. B. n. s. 592. 
 
 * Boston Iron Co. v. Hale, 8 N. H. 363 ; Jaques v. Todd, 3 "Wend. 83 ; 
 Patton V. Brittain, 10 Ire. 8. And see Lansdale v. Shackelford, "Walk. Missis. 
 149 ; Tate v. Evans, 7 Misso. 419 ; "White v. Cooper, 3 Barr, 130. 
 
 5 National Iron Armor Co. v. Bruner, 4 C. E. Green, 331 ; Anonymous, 
 cited 15 East, 407. And see Adams v. Flanagan, 36 Vt. 400 ; Hopkins v. Blane, 
 1 Call, 361 ; Blane v. Proudfit, 3 Call, 207 ; "Whitehead v. Tuckett, 15 East, 400. 
 
 133 
 
§ 384 LAW OF CONTRACTS. 
 
 should be borne in mind, that these are cases of special 
 agents, whose transactions are confined to the particular 
 instances ; not of general agents, acting within an accus- 
 tomed sphere, concerning whose authority third persons are 
 justified in drawing inferences. For, — 
 
 § 382. Principal's Representations to Public. — Within 
 a doctrine considered under "Estoppel,"^ if one repre- 
 sents to another, or to the public, directly or by conduct, 
 that a particular person is authorized to act as his agent in a 
 transaction, and this person so acts, he is bound ; though, 
 in fact, there was no authority, or the authority did not 
 extend to the doing of what was done.^ And most of the 
 actual transactions under real or assumed agencies come 
 within this proposition. Thus, — 
 
 § 383. Usage of Particular Bustaess. — Agents employed 
 in a particular business, of a known and established kind, 
 are presumed to have the authority generally entrusted to 
 such agents ; and, though in fact they have not, third per- 
 sons, without notice, are protected in dealing with them as 
 though they had.^ But what is done beyond the usage, and 
 not within the authority in fact, does not bind the principal.* 
 And — 
 
 § 384. Former Dealings through the Agent. — A course 
 
 1 Ante, I 126 et seq. 
 
 2 Lewis V. Bourbon, 12 Kan. 186 ; Dodge v. McDonnell, 14 Wis. 553. See 
 Ish V. Crane, 8 Ohio State, 520. On this principle, payment to a, person 
 found in a merchant's counting-room, ostensibly entrusted <with the conduct of 
 business therein, operates as payment to the merchant, though in fact the 
 person was not employed. Barrett v. Deere, Moody & M. 200. Por one who 
 places another in a position to mislead a third person to believe there is an 
 agency is bound by the other's act therein. De Baun v. Atchison, 14 
 Misso. 543 ; Dunham v. Jackson, 6 Wend. 22 ; Linsley v. Lovely, 26 Vt. 123. 
 
 s Minor?). Mechanics' Bank, 1 Pet. 46, 70; Pickering v. Busk, 15 East, 38; 
 Whitehead v. Tuckett, 15 East, 400; Wright v. Solomon, 19 Cal. 64; Chou- 
 teaux V. Leech, 6 Haftis, Pa. 224 ; York County Bank v. Stein, 24 Md. 447 ; 
 Williams v. Getty, 7 Casey, 461 ; Mount Olivet Cemetery v. Shubert, 2 
 Head, 116. 
 
 * Pope V. Albion Bank, 57 N. Y. 126. And see Browning v. Owen, 44 Indi 11. 
 
 134 
 
CONTEACTING THROUGH AGENTS. § 386 
 
 of dealing by the particular agent, sanctioned by the prin- 
 cipal, — as, for example, in paying bills without denying 
 the authority, — will enable the same agent to charge his 
 principal in other similar cases, even though, in fact, the 
 authority never existed, or has been withdrawn.^ And, — 
 §385. Notice of Withdrawal. — If the authority has 
 once existed, in fact or by implication, the principal on 
 withdrawing it must give notice that it has ceased ; or he 
 will be holden to any innocent third person who may deal 
 with the former agent, believing the agency to continue.^ 
 Anything adequate to put one on enquiry will be deemed 
 notice ; ^ for, where the agent is not authorized in fact, a 
 third person, to maintain a claim against the supposed prin- 
 cipal, must himself have conducted in good faith.* 
 
 VI. Fraud by and to Agents. 
 
 § 386. A^ent Authorized. — It is a universal pjinciple 
 that one who commits a wrong, whether civil or criminal, 
 through the agency of another, bears the same responsibility 
 as if he did it by his own direct volition.^ Plainly, there- 
 fore, a party who inspired his agent to procure a contract 
 by fraud, sustains the same relation to it as if the fraud 
 were his personal act.* Again, — 
 
 1 Watts V. Devor, 1 Grant, Pa. 267 ; Farmers' Mutual Ins. Co. «. Taylor, 23 
 Smitli, Pa. 342 ; Davis v. Lane, 10 IT. H. 156 ; Miller v. Moore, 1 Cranoh C. 0. 
 471. 
 
 '' Lamothe v. St. Louis Marine Railway and Dock Co., 17 Misso. 204; Han- 
 cock V. Byrne, 5 Dana, 514 ; Beard v. Kirk, 11 N. H. 397 ; Diversey o. Kel- 
 logg, 44 HI. 114; Longworth v. Oonwell, 2 Blackf. 469; Baltimore u. Esch- 
 bach, 18 Md. 276 ; Planters Bank ». Cameron, 3 Sm. & M. 609 ; Munn o. 
 Commission Co., 15 Johns. 44 ; Trueman v. Loder, 11 A. & E. 589. 
 
 -'■ Williams v. Birbeck, Hoffman, 359. 
 
 " Hodge V. Combs, 1 Black, 192 ; National Life Ins. Co. v. Minch, 53 N. T. 
 144. 
 
 5 United States v. Yoss, 1 Cranoh 0. C. 101 ; 1 Bishop Crim. Law, ? 631 ; 
 Moir V. Hopkins, 16 111. 313 ; Exum v. Brister, 35 Missis. 391. 
 
 « Lunday -u. Thomas, 26 Ga. 537-544 ; Lewis v. The State, 21 Ark. 209 ; 
 Kelly V. Troy Pire Ins. Co., 3 Wis. 254. 
 
 135 
 
§ 391 LAW OF CONTRACTS. 
 
 § 387. Unauthorized Fraud in Authorized Agency. — 
 
 In civil jurisprudence, the doctrine goes still further. If, 
 while the agent is acting in his agency, he makes fraudulent 
 representations, the principal is responsible for them as his 
 own, though he did not authorize or expect them. Having 
 employed the agent to do the thing, he must bear whatever 
 comes from the manner of doing.^ 
 
 § 388. BTot in L-ine of Agency. — For an independent 
 fraud, by a special agent, not within the scope of his agency, 
 the principal is not responsible.^ But, — 
 
 § 389. Ratified by Principal. — If one, however inno- 
 cently, accepts the benefit of a contract made for him or for 
 his advantage by another, or otherwise ratifies it, he then 
 becomes responsible for any fraud which entered into its 
 procurement, the same as though committed in person.^ 
 , § 390. Fraud on Agent. — A fraud practised on an agent 
 is, in law, a fraud upon his principal.* 
 
 § 391. The Doctrine of this Chapter restated. 
 
 Men, living in communities, are necessarily agents and 
 principals in their own and each other's transactions, almost 
 continually. There never was a person, of adequate capac- 
 ity, who has not been both. Hence the relation of principal 
 and agent comes often under review by our courts. And, 
 to it, the following propositions apply : — . 
 
 ' "Willis .;. Martin, 4 T. E. 39, 66 ; Locke v. Stearna, 1 Met. 560 ; Robinson 
 V. Walton, 58 Misso. 380 ; Durst v. Burton, 47 N!. Y. 167 ; Jeffrey v. Bigelow, 
 13 Wend. 518; Smith v. Tracy, 36 N. Y. 79; Johnson •«. Barber, 5 Gilman, 
 425; Henderson v. Railroad, 17 Texas, 560; Wright v. Calhoun, 19 Texasj 
 412; Morton v. Scull, 23 Ark. 289; Union Bank v. Campbell, 4 Humph. 
 394. 
 
 2 Kennedy v. Parke, 2 0. B. Green, 415; Pellows v. Oneida, 36 Barb. 655; 
 Echols V. Dodd, 20 Texas, 190; Kelly v. Troy Fire Ins. Co., 3 Wis. 254. 
 
 » National Life Ins. Co. v. Minch, 53 N. Y. 144 ; Elwell v. Chamberlin, 31 
 N. Y. 611. 
 
 * May V. Magee, 66 111. 112. 
 136 
 
CONTRACTING THROUGH AGENTS. § 391 
 
 First, any act of contracting, which a man can do per- 
 jonally, he can do, in some form, by agent. 
 
 Secondly, no formal authorization of the agent is neces- 
 sary, unless made so by some special rule of law ; but, in 
 !'act, he must be authorized, or his act must be afterward 
 ratified by the assumed principal, or the conduct of the 
 principal must have been such as to estop him to deny the 
 igency. 
 
 Thirdly, the agent stands in the place of the principal ; 
 who, therefore, is bound by his contracting, and is entitled 
 bo avail himself of it, the same as though done by himself. 
 
 Fourthly, if the agent acts as a principal, he is personally 
 bound ; otherwise, doing no more than is incumbent on him 
 as agent, he incurs no individual liability. 
 
 Fifthly, if persons deal with an agent, justly supposing 
 turn to be a principal, they may still have their remedies 
 against the principal, when informed of their mistake ; but, 
 if they know how the fact is while making the contract, yet 
 Bhoose to deal with the agent as principal, they cannot after- 
 pirard recede from their own voluntary bargain, and come 
 upon the principal. 
 
 Sixthly, by the common law, some exceptions to these 
 rules have been established for specialties ; and, by stat- 
 utes, there have been some as to simple contracts. 
 
 137 
 
§ 394 LAW OP CONTBACTS. 
 
 CHAPTER XXin. 
 
 CONTRACTS BY PERSONS IN PARTNERSHIP. 
 
 § 392. On what Principle. — The principle on which 
 contracts by persons in partnership proceed is, that, within 
 the scope of the business of the firm, the partner who makes 
 the contract is the agent for the rest, while he acts person- 
 ally for himself.^ And this doctrine of agency, precisely as 
 described in the last chapter, pervades and controls the 
 entire subject. Thus, — 
 
 § 393. One Partner's Power. — As to third persons, s^ 
 single partner can alone bind the firm by any simple con- 
 tract within the sphere of its operations as presented to the 
 public.^ But, as between its members, the authority may 
 be withheld, or it may be revoked by a dissenting member ; 
 and then a third person, who has notice of this, cannot 
 make with the disqualified partner a contract by which the 
 firm will be bound.^ But these are mere deductions from the 
 law of agency as elucidated in the last chapter. Again, — 
 
 § 394. Undisclosed Partners. — We there saw, that, if 
 an agent making a contract in his own name does not dis- 
 close his agency, his principal, if afterward discovered, is 
 
 > Smith Con. 2a Eng. ed. 339; Baird's Case, Law Rep. 5 Ch. Ap. 725, 783; 
 Teager v. Wallace, 7 Smith, Pa. 365; Loudon Savings Fund Society v. 
 Hagerstown Savings Bank, 12 Casey, Pa. 498; Bowrman v. Cecil Bank, 3 
 Grant, Pa. 33. 
 
 ' Catlin V. Gilders, 8 Ala. 536 ; Frost v. Hanford, 1 B. D. Smith, 640 ; LiV' 
 ingston v. Roosevelt, 4 Johns. 251. 
 
 3 Langan v. Hewett, 13 Sm. & M. 122; Johnston v. Dutton, 27 Ala. 245; 
 Leavitt v. Peck, 3 Conn. 124 ; Bull v. Hairis, 18 B. -Monr. 195. 
 138 
 
CONTRACTS BY PARTNERS. § 397 
 
 liable to be sued tbereou.^ In like manner, therefore, when 
 a man contracts with a member of a firm about a partner- 
 ship matter, but does not know of the partnership, and 
 supposes himself to be giving credit merely to the individ- 
 ual, — or deals with an ostensible firm while there is in fact 
 a silent partner, — he may, if he chooses, on discovering 
 the facts, sue the firm in the one case, or the whole firm 
 including the silent partner in the other, upon the contract.* 
 In like manner, — 
 
 § 395. Continued. — A suit on behalf of the firm,^ in 
 such a case, against the man contracting, may be brought 
 either in the name of the entire firm, or of the individual, 
 or part of the firm, with whom the contract was in fact 
 made.* So, — 
 
 § 396. STotice on Retiring. — As an ordinary principal 
 must, on putting an end to an agency, give notice thereof 
 in order to avoid liability to third persons dealing with the 
 agent ^^ in like manner, a retiring partner must give notice, 
 in order to avoid a like liability to those who subsequently 
 deal with the remaining members of the firm.® 
 
 § 397. How Sign. — A partner, in executing a simple 
 contract in writing to bind the firm, usually signs the firm' a 
 name. But it is equally good in law, if, instead of this, he 
 writes the names of the individual partners.' For practical 
 
 1 Ante, 2 356, 359. 
 
 2 Beckham v. Drake, 9 M. & W. 79; Holden v. Bloxum, 85 Missis. 381; 
 Beynolds v. Cleveland, 4 Cow. 282 ; Both v. Moore, 19 La. An. 86 ; Tucker v._ 
 Peaslee, 36 N. H. 167 ; Baxter «. Clark, 4 Ire. 127 ; Given v. Albert, 5 Watts 
 & S. 333 ; Bisel v. Hobbs, 6 Blackf. 479 ; Griflth v. Buffum, 22 Vt 181 ; Dishon 
 V. Schorr, 19 111. 59. 
 
 ' Ante,. 2 856, 360, 361. 
 
 * Cothay v. Fennell, 10 B. & C. 671 ; Ward v. Leviston, 7 Blackf. 466 ; Wood 
 V. O'Kelley, 8 Cush. 406 ; Clarkson v. Carter, 8 Cow. 84 ; Clark v. Miller, 4 
 Wend. 628 ; Rogers v. Kichline, 12 Casey, Pa. 298 ; Curtis v. Belknap, 21 Vt 
 433 ; Trott v. Irish, 1 Allen, 481. 
 
 6 Ante, g 268. 
 
 * Kenneyi). Altvater, 27 Smith, Pa. 34; Carmichaelc. Greer, 55 Ga. 116. 
 
 » Patch V. Wheatland, 8 Allen, 102 ; Holden v. Bloxum, 35 Missis. 381 ; 
 
 139 
 
§ 399 LAW OF CONTKACTS. 
 
 reasons, a seal should not be attached unless required by- 
 law ; and, when it is, the, proper formalities should be 
 observed, as will now be explained. 
 
 §398. Instntments under Seal: — 
 
 How practically. — Whatever be the stnct law as to the 
 various possible methods of executing a specialty by a 
 partnership, practically the individual names of the partners 
 should be given in the body of the instrument, with the 
 recitation that they are partners composing a firm which 
 should be named ; and each partner should with his own 
 hand subscribe his name opposite his several seal. This 
 method is certainly right, the proof is easy, and no un- 
 pleasant questions of law or fact can follow. 
 
 § 399. Power of One Partner. — Since a partner, who 
 acts for the rest of the firm as well as himself, does so merely 
 because he is the agent of the other members, who are his 
 principals,^ the result necessarily follows that he cannot 
 bind them by a sealed instrument unless his authority is 
 under seal.^ Nor is it different though the partnership 
 articles are sealed; "unless," said Lord Kenyon, «' a par- 
 ticular power be given for that purpose." ^ If the partners 
 are together, and one with the concurrence of the rest signs 
 
 McGregor v. Cleveland, 9 Wend. 475. And see Maynard «. Fellows, 43 N. H. 
 255. 
 
 > Ante, 2 392. 
 
 2 Ante, I 327. 
 
 ' Harrison v. Jackson, 7 T E. 207, 210 ; McCuUough v. Somerville, 8 Leigh, 
 415 ; Gerard v. Basse, 1 Ball. 119 ; Trimble v. Coons, 2 A. K. Mar. 375 ; JJamb- 
 den V. Sharp, 9 Humph. 224 ; Hart u. Withers, 1 Pa. 285 ; McDonald v. 
 Eggleston, 26 Vt. 154; Pierson v. Hooker, 3 Johns. 68; Donaldsons. Kendall, 
 2 Ga. Dee. 227 ; Napier v\ Catron, 2 Humph. 534 ; Morris v. Jones, 4 Harring. 
 Del. 428 ; Henry v. Gates, 26 Misso. 315. On the other hand, not quite con- 
 sistently with this doctrine or other sound legal principle, there are cases which 
 seem to hold, that, if there is a prior oral authority or snihsequent oral ratifica- 
 tion from the other partners, the instrument will constitute the firm's deed. 
 Grady v. Robinson, 28 Ala. 289 ; Herbert v. Hanriok, 16 Ala. 581 ; Drumwright 
 V. Philpot, 16 Ga. 424; Shirley- v. Pearne, 33 Missis. 653 ; Haynes v. Seaohrest, 
 140 
 
CONTRACTS BY PApTNEES. § 400 
 
 the firm's name opposite several seals or one, it is good;^ 
 because, by reason of the presence,^ the act of the one is the 
 act of all.^ 
 
 § 400. Not so executed as to be Firm's Deed. — ^The 
 adjudications are discordant as to the effect of an instrument 
 executed by one member as the deed of the firm, yet not bind- 
 ing the others as a deed for the want of sealed authority. We 
 have seen,* that an unauthorized seal may be rejected as sur- 
 plusage, leaving the instrument good as a simple contract. 
 And a written instrument will always be construed, if possi- 
 ble, in a way to carry out the purpose of the parties and give 
 it legal effect.® Applying these principles, therefore, if the 
 instrument is one to which the law requires a seal, it will be 
 void as to the parties not signing it, but valid as the sole 
 deed of the other party ; if no seal is required by law, then 
 it will be the simple contract of, at leasts the parties not 
 signing. As to the party signing, the difference between a 
 simple contract and a specialty is so great, and the incon- 
 gruity of a part of a firm contracting by deed and the rest 
 by parol is so considerable, that his seal should also be 
 
 13 Iowa, 455; Ely v. Hair, 16 B. Monr. 230; Pike v. Bacon, 21 Maine, 280; 
 Cady V. Slieperd, 11 Pick. 400 ; Clement v. Brush, 3 Johns. Cas. 180 ; Swan v. 
 S'Cedman, 4 Met. 548 ; Pox v. Norton, 9 Mich. 207 ; Gwinn v. Eooker, 24 Misso. 
 290 ; Smith v. Kerr, 3 Comst. 144 ; Gram v. Seton, 1 Hall, N. T. 262 ; Bond 
 V. Aitkin, 6 "Watts & S. 165; Johns v. Battin, 6 Casey, 84; Lowery v. Drew, 
 18 Texas, 786 ; Wilson v. Hunter, 14 Wis. 683. 
 
 1 Ball V. Dunsterville, 4 T. E. 313 ; Day v. Lafferty, 4 Ark. 450 ; Lee v. Onstott, 
 
 1 Aik. 206; Henderson v. Barbee, 6 Blackf. 26; Price v. Alexander, 2 Greene, 
 Iowa, 427. 
 
 2 Ante, 2 328. 
 
 ' And see United States v. Astley, 3 Wash. C. 0. 508 ; Fleming v. Dunbar, 
 
 2 Hill, S. C. 532 ; Modisett v. Lindley, 2 Blackf. 119; Posey v. Bullitt, 1 Blackf. 
 99; Pichthom v. Boyer, 5 Watts, 159; Mackay v. Bloodgood, 9 Johns. 285; 
 Little V. Hazzard, 5 Harring. Del. 291., 
 
 * Ante, ? 377. 
 
 '5 2 Saund. Wms. ed. 96, note ; Bandel v. Chesapeake and Delaware Canal, 
 1 Harring. Del. 151 ; Stockton v. Turner, 7 J. J. Mar. 192 ; Bush v. Watkins, 
 
 14 Beav. 425; Milboumu. Simpson, 2 Wils. 22; post, g 582. 
 
 141 
 
§ 402 LAW OP CONTRACTS. 
 
 rejected; leaving the whole to be treated as an unsealed 
 instrument. So the question is in principle ; some of the dis- 
 cordant decisions are referred to in a note.^ 
 
 § 401. Release. — A release by one of two joint obligees 
 discharges the obligation. And, on this principle, if one 
 partner signs and seals a composition deed, it will be 
 effectual.^ 
 
 § 402. The Doctrine of this Chapter restated 
 
 Partners bind one another by contract on the same prin- 
 ciple, and substantially in the same manner, as does an 
 ordinary agent his principal. The partnership itself con- 
 fers the agency. But such agency does not extend to 
 the making of specialties ; which, therefore, though relating 
 to the business of the firm, should be executed in the same 
 manner as if the parties were not partners. Undoubtedly, 
 however, it is competent for a business firm, in their articles 
 of copartnership, by express provision to authorize each 
 partner, or a particular one only, to make contracts under 
 seal in behalf of the firm, provided the articles are them- 
 selves under seal. This would not be convenient for 
 persons dealing with the firm ; because, in matter of pru- 
 dence, he who accepts a sealed instrument, executed by 
 any agent, should have under his own control the means of 
 proving the agency, 
 
 ^ Banorgee v. Hovey, 5 Mass. 11; Dillon «. Brown, Jl Gray, 179; Milton «. 
 Mosher, 7 Met. 244 ; Schmertz v. Shreeve, 12 Smith, Pa. 457 ; Lucas «. Darien 
 Bank, 2 Stew. 280 ; Human v. Cuniffe, 32 Misso. 316 ; Gunter ». Williams, 40 
 Ala. 561 ; MoCullough v. Somerville, 8 Leigh, 415 ; Daniel v. Toney, 2 Met. Ky. 
 528; Hoskinson v. Eliot, 12 Smith, Pa. 393; Dodge v. McKay, 4 Ala. 346; 
 Scott V. Dansby, 12 Ala. 714; Massey v. Pike, 20 Ark. 92 ; Smith v. Tupper, 4 
 Sm. & M. 261 ; Turbeville v. Ryan, 1 Humph. 113. 
 
 « Met. Con. 125, 126 ; Bruen v. Marquand, 17 Johns. 58 ; Smith v. Stone, 4 
 Gill & J. 310 ; Pierson v. Hooker, 3 Johns. 68 ; Morse o. Bellows, 7 N. H. 549; 
 Crutwell v. DeRosset, 5 Jones, N. C. 263 ; McBride v. Hagan, 1 "Wend. 326 ; 
 Wells V. Evans, 20 Wend. 251 ; Evans v. Wells, 22 Wend. 824. 
 142 
 
THE CONSIDERATION. § 404 
 
 CHAPTEE XXIV. 
 
 THE CONSIDERATION. 
 
 I 403-408. Introductory Explanations. 
 409-427. General View of the Consideration. 
 428-431. Where the Contract is wholly executory. 
 432-437. Wholly executed. 
 438, 439. Executed in Part. 
 440-445. Consideration executed. 
 4J6-453. Waiver as to Consideration. 
 
 454. Doctrine of the Chapter restated. 
 
 § 403. How differs from Motive. — The motives to 
 promises are numerous. One motive, for example, is to 
 confer a benefit on the promisee ; springing from particular 
 affection, or from general benevolence. Another is to 
 obtain the quid pro quo; that is, the consideration, in 
 exchange for which the promise is given. So that, though 
 the consideration may be deemed a motive, it is one only 
 among many motives.^ 
 
 § 404. "Value. — In a suit at law, the judgment for a 
 successful plaintiff is, that he recover of the defendant a 
 specified number of dollars and cents ; or that he be put in 
 possession of the thing in controversy, but it must be of a 
 sort which can be estimated in money. Even equity does 
 not take jurisdiction of things which capnot be thus valued. 
 A divorce suit might seem to be a partial exception ; but its 
 leading purpose is to determine a status, and a status is 
 deemed to have a value in the currency of the country. An 
 
 ' And see Philpot v. Gruninger, 14 Wal. 570; Rockwell «. Brown, 54 N. Y. 
 210. 
 
 143 
 
§ 407 LAW OF CONTBACTS. 
 
 action, as for slander, to redress' an injury to the character, 
 proceeds chiefly on the pecuniary view of the case ; and a 
 judgment that the plaintiff recover his lost character was 
 never known. So that a consideration, in the law of con- 
 tracts, must be a thing, in some sense, of pecuniary value. 
 
 § 405 . " Good " — " Valuable " — " Moral Obligation," 
 etc. — We have, from the bench, respectful mention of a 
 "moral obligation," and of "love and affection;" each of 
 which may in some instances have led the courts to depart 
 from established principle, and each of which is in various 
 circumstances justly deemed important as repelling any 
 presumption of fraud, and making gifts prompted by. it 
 good. But, in general, and probably by the better view 
 universally, a consideration must be something capable of 
 being reduced to a money value, though such value may be 
 indefinite and even slight.-' To define, therefore, — 
 
 § 406. How defined. — A consideration is something, 
 deemed in the law of pecuniary value, in exchange for 
 which the promise in a contract is made. And — 
 
 § 407. Tbe Doctrine. — The doctrine, to be illustrated 
 in this chapter, is, that no simijle contract is valid without 
 a consideration.^ We have already seen' how it is with 
 
 * Law books frequently speak of a good consideration, in distinction from a 
 valuable one; meaning, by the former, blood relationship, or natural affection. 
 Chittysays, that a "good" consideration maybe available in a deed of real 
 estate, under some circumstances ; but it will never support a simple contract. 
 1 Chit. Con. 11th Am. ed. 27. And see Schnell v. Nell, 17 Ind. 29 ; Kirkpatrick 
 ■0. Taylor, 43 HI. 207 ; Ford v. EUinwood, 3 Met. Ky. 359 ; Pennington v. Git- 
 tings, 2 Gill & J. 208 ; Hayes v. Kershow, 1 Sandf. Ch. 258 ; Coggeshall v. 
 Coggeshall, 2 Strob. 51 ; Killough u. Steele, 1 Stew. & P. 262. We shall not, 
 therefore, have occasion to speak of any other than a "valuable" considera- 
 tion in the present chapter. Something of "moral obligation" will appear in 
 our next chapter. And see post, J 453. 
 
 2 Travis v. Duffau, 20 Texas, 49; Doebler v. Waters, 30 Ga. 344; Loweu. 
 Bryant, 32 Ga. 235 ; Aldridge v. Turner, 1 Gill & J. 427; Tenney v. Prince, 4 
 Pick. 385, 7 Pick. 243; Bailey v. Walker, 29 Misso. 407; Lang v. Johnson, 4 
 Post N. H. 802. 
 
 ' Ante, 2 23 et seq., 405, note. 
 144 
 
THE CONSIDERATION. § 409 
 
 contracts under seal. The contracts here treated of are 
 express ones, in distinction from those created by law ; but 
 probably the law never creates a contract without a consid- 
 eration.^ 
 
 § 408. How the Chapter divided. — Our discussion will 
 be in the following order : I. General View of the Con- 
 sideration ; II. Where the Contract is wholly executory (as 
 depending on Mutual Promises) ; III. Where the Contract 
 is wholly executed ; IV. Where the Contract is executed in 
 part ; and, especially, V. Where the Consideration is exe- 
 cuted ; VI. The Waiver of Imperfections in the Considera- 
 tion. 
 
 I. General View of the Consideration. 
 
 § 409. Amount of Value. — As we have seen,^ the con- 
 sideration must be a thing of value. Where an exact sum 
 of money is given, or to be given, by the one party, in return 
 for something not money by the other, or where the thing 
 on neither side is money, the law will not interfere with 
 their estimates of value, but will hold the contract good 
 though the judge or jury should deem the value to be greatly 
 more or less than the parties did. Only on a question of 
 fraud will the real values be taken into the account ; then, 
 in a gross case, they may become the controlling circum- 
 stance.^ But, — 
 
 1 Ante, J 9. 
 
 2 Ante, J 404, 405. 
 
 s Newhall v. Paige, 10 Gray, 866 ; Earl v. Peck, 64 N. Y. 596 ; Hunter v. 
 McLaughlin, 43 Ind. 38 ; Herriman v. Lacefield, 4 Heisk. 209 ; McMullen o. 
 Gable, 47 HI. 67 ; Comstock v. Purple, 49 HI. 158 ; Duncan u. Sanders, 50 111. 
 475; Nash v. Lull, 102 Mass. 60; Wortli v. Case, 42 N. T. 862; Callaghan v. 
 Callaghan, 8 CI. & F. 374 ; Groves v. Perkins, 6 Sim. 576 ; Stilwell v. "Wilkins, 
 Jacob, 280, 282 ; Taylor v. Obee, 3 Price, 83 ; "Western v. Russell, 3 Ves. & B. 
 187; Murray u. Palmer, 2 Sch. & Lef. 474, 488; Clarkson v. Hanway, 2 P. 
 "Wms. 203; Griffitln). Spratley, 1 Cox, 383; Hough v. Hunt, 2 Ohio, 495; 
 Green v. Thompson, 2 L-e. Eq. 365; White v. Plora, 2 Tenn. 426; Hardeman 
 ■u. Burge, 10. Yerg. 202 ; £nobb v. Lindsay, 5 Ohio, 468 ; Osgood v. Franklin, 
 2 Johns. Ch. 1; Hallett v. Collins, 10 Ho'ir. U. S. 174; Odineal». Barry, 24 
 Missis. 9 ; Haines v. Haines, 6 Md. 435 ; McCormick v. Malin, 5 Blackf. 509. 
 
 ^ 145 
 
§ 413 LAW OF CONTRACTS. 
 
 § 410. Two Values fixed by Law. — Where the law has 
 established the values, as it has of coin and some other 
 things, a particular sum of money, or another thing thus 
 made equal in worth to such sum, is not a consideration for 
 a greater sum, or for a thing which the law has made to be 
 worth more.^ Thus, — 
 
 § 411. Fees of Officer. — If a statute has prescribed an 
 exact fee for the performance of a specified duty by an officer, 
 an agreement with him to pay more is void.'' Or, — 
 
 § 412. Taking less than due — (Compositions with 
 Creditors). — If a man owes another a sum of money ascer- 
 tained and due, and the creditor accepts a less sum in full 
 satisfaction,^ or promises to take less,* the payment in the 
 one instance is a discharge of only so much as it amounts 
 to, and in the other the promise is void. This is the law of 
 simple contracts ; but, — 
 
 § 413. Release under Seal. — As a seal implies a con- 
 sideration,^ a release under seal to the debtor, or even to 
 one of several joint debtors, without actual payment, will 
 bar a suit for the debt.* And, — 
 
 1 Schnell v. Nell, 17 Ind. 29; Bailey v. Day, 26 Maine, 88. See Braehan v. 
 Griffin, 3 Call, 433. 
 
 2 Burk V. "Webb, 32 Mich. 173; Morrell v. Quarles, 35 Ala. 544; Territory 
 V. King, 1 Oregon, 106; Evans v. Trenton, 4 Zab. 764; Smith v. AVhildin, 10 
 Barr, 39; Kernion v. Hills, 1 La. An. 419. 
 
 ' Fitch V. Sutton, 5 East, 230; Bunge ti.Koop, 48 N. Y. 225; Bliss v. Swartz, 
 7 Lans. 186 ; Bryan v. Poy, 59 N. C. 45 ; Rea v. Owens, 37 Iowa, 262 ; Crawford 
 V. Millspaugh, 13 Johns. 87; Heathcote v. Crookshanks, 2 T. K. 24; Smith*. 
 Bartholomew, 1 Met. 276; Pearson v. Thomason, 15 Ala. 700; Bailey v. Day, 
 26 Maine, 88 ; Harriman v. Harriman, 12 Gray, 841. 
 
 * McKenzie v. Culbreth, 66 N. C. 534; Line v. Nelson, 9 Vroom, 358; Eose 
 V. Daniels, 8 E. L 381 ; Moore v. Hylton, 1 Dev. Eq. 433. , 
 
 5 Ante, g 23 ; Eutherford v. Baptist Convention, 9 Ga. 54 ; Patton v. Ashley, 
 
 3 Bng. 290; Wing v. Chase, 35 Maine, 260; Brewer c. Bessinger, 25 Missis. 86. 
 8 Schuylkill Navigation Co. u. Harris, 5 Watts «& S. 28 ; Bender v. Sampson, 
 
 11 Mass. 42, 44, 45; Valentine v. Foster, 1 Met. 520; Walker v. McCuUoch, 
 
 4 Greenl. 421; Lee v. Lancashire, etc., Eailway, Law Eep. 6 Ch. Ap. 527, 534; 
 Payler v. Homersham, 4 M. & S. 423; Willing v. Peters, 12 S. & E. 177; 
 Willoughby v. Backhouse, 4 D. & E. 539, 2 B. & C. 821. But see Bruton v. 
 Wooten, 15 Ga. 570. 
 
 146 
 
THE CONSIDERATION. § 417 
 
 § 414. Xot under Seal — (Consideration of Value not 
 fixed). — ^Though a release is not under seal, if, to a partial 
 payment, some consideration however small is added, of a 
 soi"t the value whereof is not, like money or a fee, fixed by 
 law,^ or if the whole payment is of a like sort,^ this, when 
 accepted m full discharge of the debt, will be valid. Thus 
 (a distinction very thin), — 
 
 §415. Payment guaranteed. — Thougli tlie payment of 
 a part, wliich is accepted in full, will not be adequate, even 
 where the debtor is in failing circumstances ; yet a guaranty 
 of such part from a responsible third person,^ or the pay- 
 ment of such part in the third person's notes, which are 
 afterward paid,* will operate in law, the parties so agree- 
 ing, as a discharge of the whole. So, — 
 
 § 416. Payment before due — At Different Place. — If 
 a part is paid before the debt is due,* or at a different place 
 from that originally agreed upon,* the discharge will be 
 good. Or, — 
 
 § 417. Sum in Dispute. — If there is a dispute or doubt 
 as to how much is due, the payment of a sum which the 
 parties agree upon will be adequate in discharge.' 
 
 1 "Williams u. Stanton, 1 Root, 426; Blinn v. Chester, 5 Day, 359. 
 
 ' Arnold v. Park, 8 Bush, 3 ; McKenzie v. Culbreth, 66 N. C. 534. 
 
 » Maddux v. Bevan, 39 Md. 485 ; Little v. Hobbs, 34 Maine, 57 ; Boyd v. 
 Hitchcock, 20 Johns. 76; Le Page v. McCrea, 1 "Wend. 164; Kellogg v. 
 Richards, 14 "Wend. 116 ; Gunn v. McAden, 2 Ire. Eq. 79. There are cases which 
 put this upon the ground that to permit the creditor to sue the debtor would be 
 a fraud on the surety and the other creditors. Steinman v. Magnus, 11 Bast, 
 390 ; Smith v. Bartholomew, 1 Met 276, 278. See a similar principle, in Poague 
 V. Spriggs, 21 Grat. 220. See, also. Brooks v. "White, 2 Met. 283 ; Goodnow v. 
 Smith, 18 Pick. 414 ; Fellows o. Stevens, 24 "Wend. 294 ; Keeler v. Salisbury, 
 33 N. Y. 648. 
 
 * Sanders v. Branch Bank, 13 Ala. 353 ; "Webb v. Goldsmith, 2 Duer, 413 ; 
 Frisbie v. Lamed, 21 "Wend. 450 ; Booth v. Smith, 3 "Wend. 66. 
 
 * Arnold v. Park, 8 Bush, 3 ; Bowker v. Childs, 3 Allen, 434. 
 
 6 McKenzie v. Culbreth, 66 N. C. 534; Smith v. Brown, 3 Hawks, 580; 
 Jones V. Bullitt, 2 Litt. 49 ; Penwick v. Phillips, 8 Met. Ky. 87 ; Jones v. Per- 
 kins, 29 Missis. 139 ; Eeid v. Hibbard, 6 "Wis. 175. 
 
 ' Simmons v. Almy, 103 Mass. 33 ; Stearns v. Johnson, 17 Minn. 142 ; Eiley 
 
 147 
 
§ 420 LAW OF CONTRACTS. 
 
 § 418. Illegal — Against Public Policy. — The courts, 
 being established to conserve the law, good motals, and the 
 due order of society, cannot lend their aid to parties con- 
 spiring to impede these objects. Therefore a consideration 
 immoral, illegal, or contrary to public policy will not sup- 
 port a contract.^ But this subject will be more minutely 
 examined in the next chapter. 
 
 '§ 419. What concerns the Parties. — If a consideration, 
 however adequate in itself, in no way concerns the parties 
 either personally or as representing the interests of others, — 
 or, if it is procured neither by one of them nor by any 
 other person in behalf of such one, — it will not support a 
 contract.^ The common form of this doctrine is, that — 
 
 §420. Benefit or Disadvantage. — The consideration 
 must be something beneficial to the one party, or disad- 
 vantageous to the other, or to persons whom the parties 
 represent.^ Thus, — 
 
 V. Kershaw, 52 Mlsso. 223 ; Wehrum v. Kuhn, 61 N. Y. 623 ; Snow v. Grace, 
 29 Ark. 131 ; Palmertou v. Huxford, 4 Denio, 166 ; Taylor v. Nussbaum, 2 
 Duer, 302. And see Sheldon v. Eice, 30 Mich. 296. 
 
 1 Tucker®. West, 29 Ark. 386; Taylor v. Chester, Law Rep. 4 Q. B. 309; 
 Porter 1). Jones, 52 Misso. 399; Harwoods. Knapper, 50Misso. 456; Stouten- 
 burg V. Lybrand, 13 Ohio State, 228; Sternberg v. Bowman, 103 Mass. 325; 
 Bailey v. Bussing, 28 Conn. 455 ; Acheson t>. Miller, 2 Ohio State, 203 ; Widoe 
 V. "Webb, 20 Ohio State, 431 ; Hennessey v. Hill, 52 111. 281 ; Pearce v. Brooks,- 
 liaw Eep. 1 Ex. 213 ; Deans v. McLendon, 30 Missis. 343 ; Bly v. Second National 
 Bank, 29 Smith, Pa. 453 ; Ives v. Bosley, 35 Md. 262 ; Brown v. Brine, 1 Ex. 
 D. 5. 
 
 ^ And see Stewart v. Hamilton College, 2 Denio, 403 ; Salmon v. Brown, 6 
 Blackf. 347 ; Bingham v. Kimball, 17 Ind. 396 ; Fugure v. Mutual Society, 46 
 Vt. 362; Philpot v. Gruninger, 14 Wal. 570; Page v. Becker, 31 Misso. 466. 
 
 3 1 Chit. Con. 11th Am. ed. 28; Met. Con. 163; Edgeware Highway v. 
 Harrow Gas. Co., Law Eep. 10 Q. B. 92, 95, 96 ; Currie v. Misa, Law Eep. 10 
 Ex. 153, 162 ; Buchanan v. International Bank, 78 HI. 500 ; Coleman v. Eyre, 
 45 N. Y. 38; Glasgow v. Hobbs, 32 Ind. 440; Greene v. Bartholomew, 34 Ind. 
 236} Pitt V. Gentle, 49 Misso. 74; "Williamson v. Clements, 1 Taunt. 623; 
 Sanfordi). Huxford, 32 Mich. 313; Neal v. Gilmore, 29 Smith, Pa. 421; Con- 
 over V. Stillwell, 5 "Vroom, 54 ; McCarty v. Blevins, 6 Yerg. 195 ; Tompkins v. 
 Philips, 12 Ga. 62 ; Molyneux v. Collier, 17 Ga. 46 ; Doyle v. Knapp, 3 Scam. 
 148 
 
THE CONSIDERATION. § 422 
 
 § 421. Extending Time. — If one owes money to another, 
 and the latter simply promises the former, who accepts the 
 promise, to extend the time of payment, nothing beneficial 
 or detrimental passes from the one to the other, and 
 the promise is void.^ But an agreement by the debtor to 
 pay an increased rate of interest,^ or his paying the interest 
 in advance,^ will support an undertaking by the creditor to 
 extend the time. On the other hand, an extension of time 
 is an adequate consideration for a promise.* Again,- — 
 
 § 422. Gratuitous Bailment. — If a man promises an- 
 other to carry and deliver for him to a third person, without^ 
 compensation, an article of personal property, this promise 
 is void because there is no consideration for it.° But if he 
 takes the article into his possession, he is then under legal 
 obligation to deliver it ; because, should he keep it, he would 
 derive a benefit to himself and cause a disadvantage to 
 another, contrary to his promise.^ 
 
 334; "Warren v. Whitney, 24 Maine, 561; Hildreth w. Pinkerton Academy, 9 
 Fost. N. H. 227 ; Brown v. Brine, 1 Bx. D. 5, 7. 
 
 1 Kellogg V. Olmsted, 25 JST. Y. 189 ; Bates v. Starr, 2 Vt. 536 ; First National 
 Bank v. Church, 3 Thomp. & C. 10; Van Allen v. Jones, 10 Bosw. 369 ; Par- 
 melee 17. Thompson, 45 IT. Y. 58. 
 
 ' Beckner v. Carey, 44 Ind. 89; Knapp v. Mills, 20 Texas, 123; Clarkson v. 
 Creely, 35 Misso. 95. See Kiusey v. "Wallace, 36 Cal. 462. 
 
 3 Dickerson v. Ripley, 6 Ind. 128 ; "Wright v. Bartlett, 43 N. H. 548. And 
 see "Warner v. Campbell, 26 111. 282 ; Harbert v. Dumont, 3 Ind. 346. 
 
 * Hockenbury o. Meyers, 5 Vroom, 346; Mechanics', etc., Bank i). "Wixson, 
 42 N. Y. 438 ; Cary v. "White, 52 N. Y. 138 ; Underwood v. Hossack, 38 111. 
 208; Raymond d. Smith, 5 Conn. 555; Russell v. Babcock, 14 Maine, 138 
 Cook V. Duvall, 9 Gill, 460. Forbearance "for a short time" is too indefinite 
 but, "for a reasonable time," is good. Lonsdale v. Brown, 4 "Wash. C. C. 148 
 Sidwell V. Evans, 1 Pa. 385. 
 
 5 Coggs V. Bernard, 2 Ld. Raym. 909, 911, 919. And see Elsee v. Gatward, 5 
 T. R. 143; Dartnall v. Howard, 4 B. & C. 145. 
 
 * The correctness of this doctrine is settled by the authorities beyond dis- 
 pute, but the same reason is not always given as in the text. Graves v. Tick- 
 nor, 6 N. H. 537 ; Colyar v. Taylor, 1 Coldw. 372 ; Beardslee v. Richardson, 11 
 "Wend. 25; Bland v. "Womack, 2 Murph. 373 ; Delaware Bank v. Smith, Edm. 
 Sel. Cas. 351 ; Lloyd v. Barden, 8 Strob. 343; Clark v. Gaylord, 24 Conn. 484; 
 
 , Jenkins c. Motlow, 1 Sneed, Tenn. 248; Persch v. Quiggle, 7 Smith, Pa. 247; 
 Gulledge v. Howard, 23 Ark. 61 ; Dart v. Lowe, 5 Ind. 131 ; Johnson v. Rey- 
 
 149 
 
§ 426 LAW OF CONTRACTS. 
 
 § 423. other Illustrations. — The books are full of 
 illustrations of what is, and what is not, a consideration for 
 a promise. Thus» — 
 
 § 424. Marriage. — Marriage is deemed a thing of value, 
 and is therefore an adequate consideration for a promise ;^ 
 but, if a man has already agreed to marry a woman, her 
 mere expectation that he will fulfill his agreement will not 
 support a fresh promise from him.^ 
 
 § 425. Mistake. — A deed supposed to convey land, but 
 conveying nothing ;* forbearance to one, when the supposed 
 cause of action is without foundation in law ; * an obligation 
 believed to be legal, but not so in truth, and the question 
 not even doubtful;^ a patent apparently good, but really 
 void for the want of novelty and utility ; * — these are 
 specimens of apparent considerations, without substance, 
 and therefore not adequate to support a promise.'' If a suit 
 on the promise is brought, the defence is based on what is 
 termed a — 
 
 § 426. Failure of Consideration. — And, in these and 
 
 nolds, 3 Kan. 257 ; Coggs v. Bernard, supra ; Met. Con. 164-166, and cases 
 there cited. 
 
 1 1 Bishop Mar. Women, J 775, 776 ; "Wright v. "Wright, 54 N. Y. 437 ; "Wall 
 V. Scales, 1 Dev. Eq. 476. 
 
 2 Eaymond v. Sellick, 10 Conn. 480, 483. 
 
 ' Murphy v. Jones, 7 Ind. 529. See Campbell v. Medbury, 5 Bis. 33 ; Prier- 
 woodi). Pierce, 17 Ind. 461 ; Sheldon «. Harding, 44 HI. 68; Elleryu. Cunning- 
 hajn, 1 Met. 112. 
 
 * Palfrey v. Portland, etc., Eailroad, 4 Allen, 55, 67 ; Sharps v. Rogers, 12 
 Minn. 174; Strahn v. Hamilton, 38 Ind. 57. 
 
 5 Logan V. Mathews, 6 Barr, 417 ; Jarvis v. Sutton, 3 Ind. 289. See Fleming 
 V. Ramsey, 10 "Wright, Pa. 252 ; Allen v. Prater, 30 Ala. 458 ; Ott «. Garland, 
 7 Misso. 28. 
 
 " Pirst National Bank v. Sturgis, 8 Kan. 660 ; Bierce v. Stocking, 11 Gray, 
 174; Lester v. Palmer, 4 Allen, 145; Cross v. Huntley, 13 "Wend. 385; Geiger 
 V. Cook, 3 Watts & S. 266 ; "Vaughan v. Porter, 16 Vt. 266 ; Clough v. Patrick, 
 37 Vt. 421 ; Dickinson v. Hall, 14 Pick. 217. 
 
 ' For otlier illustrations, see Hocker v. Gentry, 3 Met. Ky. 463 ; Wentworth 
 V. Wentworth, 5 N. H. 410; Cabot ti. Haskins, 3 Pick. 88; Long v. Towl, 42 
 Misso. 545; Bhle v. Judson, 24 Wend. 97; Crosby u.Wood, 2 Selden, 869; 
 Wood V. Schlater, 24 La. An. 284 ; Strong v. Courtney, 6 Mod. 265. 
 150 
 
THE CONSIDERATION. § 428 
 
 other like cases, where the supposed consideration has failed, 
 any money paid during the continuance of the mistake may 
 be recovered back.^ But, — 
 
 § 427. Absence of Mistake — Subsequent Deprecia- 
 tion. — If the parties are in no degree mistaken, and the 
 thing is exactly what they supposed it to be, — and there is 
 no fraud, — the law, not undertaking to interfere with their 
 bargain,^ will hold the consideration to be good. Especially 
 will this be so though there is a subsequent depreciation of 
 value, or failure in the thing ; ' as, where during slavery one 
 bought a slave on credit, but before the time of payment 
 arrived slavery was abolished, his liability was adjudged not 
 to be extinguished.* So, if one gives his note to the mother 
 of a bastard child, in discharge of an obligation for its sup- 
 port, the note remains good thoHigh the child dies.^ And 
 if, after a patent is sold on credit, improvements are made 
 rendering it valueless, this is no defence to a suit for the 
 purchase money .^ 
 
 II. Where the Contract is whoUy Eocecutory. 
 
 § 428 . What. — The only case of a contract wholly execu- 
 tory — that is, executory on both sides — is where there are — 
 Mutual Promises. — A promise of a thing of value is 
 
 1 Met. Con. 219; Add. Con. 7th Eng. ed. 232; 2 Chit. Con. 11th Am. ed, 
 921; Chapman v. Brooklyn, 40 N. Y.' 372 ; Poss v. Eichardson, 15 Gray, 303; 
 Darst V. Brockway, 11 Ohio, 462 ; Spring v- CoflBn, 10 Mass. 31 ; Wharton v. 
 G'Hara, 2 Nott & McC. 65; Pettibone v. Roberts, 2 Eoot, 258 ; Steele v. Hobbs, 
 16 m. 59 ; "Woodward a. Fels, 1 Bush, 162 ; Griggs v. Morgan, 9 Allen, 37 ; 
 Hotchkiss V. Judd, 12 Allen, 447 ; Leach o. Tilton, 40 N. H. 473 ; Putnam v. 
 "Westcott, 15 Johns. 73 ; Eice v. Peet, 15 Johns. 503 ; Smith v. McCluskey, 45 
 Barb. 610; French v. Millard, 2 Ohio State, 44. 
 
 2 Ante, I 407. , 
 
 ' Smith V. Gower, 2 Duvall, 17 ; Pollard v. Lyman, 1 Day, 156 ; Gore v. 
 Mason, 18 Maine, 84; Kerr v. Lucas, 1 Allen, 279; Perry v. Buckman, 33 Vt. 
 7 ; Byrne «. Cummings, 41 Missis. 192 ; Pay v. Richards, 21 Wend. 626. 
 
 * Dowdy V. McLellan, 52 Ga. 408. 
 
 5 Potter V. Earnest, 45 Ind. 416. 
 
 6 Harmon v. Bird, 22 Wend. 113. 
 
 151 
 
§ 431 LAW OF CONTRACTS. 
 
 itself valuable when made on a consideration ; so that, if 
 two persons simultaneously promise, each to the other, some 
 valuable thing, this constitutes a good contract. The promise 
 of the one is the consideration for that of the other .^ But — 
 
 § 429. By one only. — A promise by one, with nothing 
 in return, is void ;^ as, if he undertakes in writing to convey 
 land to another who neither agrees to buy nor pays anything 
 for the promise,^ or to remain with and learn a trade of 
 another who does not agree to teach.* But, — 
 
 § 430. Botli bound or neither. — If the former makes 
 an offer and the latter accepts it, the contract becomes 
 thereby perfected.' In other words, a contract resting on 
 mutual promises will bind both parties or neither.^ 
 
 § 431. Simultaneous. — If the promise of each is made 
 at a different time from that of the other, though on the 
 same day, and the two are not connected, both are void. In 
 form or effect they must be simultaneous.' 
 
 III. When the Contract is wholly Executed. 
 
 § 432. In General. — A contract executed on both sides 
 is ended ; and, in general, no questions concerning it remain. 
 
 ' Punck V. Hough, 29 HI. 145 ; Downey v. Hinchman, 25 Ind. 453 ; Phillips 
 V. Preston, 5 How. U. S. 278 ; Leach v. Keach, 7 Iowa, 232 ; Eippey v. Priede, 
 26 Misso. 523 ; Hartzell v. Saunders, 49 Misso. 433 ; Coleman v. Eyre, 45 N. Y. 
 38; Nunnally v. "White, 3 Met. Ky. 584; Baboock v. Wilson, 17 Maine, 372; 
 Whitehead u. Potter, 4 Ire. 257 ; Appleton v. Chase, 19 Maine, 74 ; Byrd v. 
 Pox, 8 Misso. 574 ; Congregational Society v. Perry, 6 N. H. 164 ; George o. 
 Harris, 4 N. H. 533 ; Briggs v. Sizer, 30 N. Y. 647 ; Porney v. Shipp, 4 Jones, 
 N. 0. 527; Nott v. Johnson, 7 Ohio State, 270; Abrams v. Suttles, Busbeei 99; 
 Barringer v. Warden, 12 Oal. 311 ; Missisquoi Bank v. Sabin, 48 Vt. 239. 
 
 ^ Thome «. Deas, 4 Jqjins. 84. 
 
 ' Bean v. Burbank, 16 Maine, 458 ; Burnet v. Bisco, 4 Johns. 235. 
 
 * Lees V. Whitcomb, 5 Bing. 34, 2 Moore & P. 86, 3 Car. & P. 289. 
 
 ' Goodpaster v. Porter, 11 Iowa, 161 ; Thomason v. Dill, 30 Ala. 444 ; Boies 
 V. Vincent, 24 Iowa, 387. 
 
 <^ Townsend v. Pisher, 2 Hilton, 47 ; Ewins v. Gordon, 49 N. H. 444. And 
 see Jenkins v. Williams, 16 Gray, 158. 
 
 ' Livingstone v. Rogers, 1 Caines, 583 ; Keep v. Goodrich, 12 Johns. 397 ; 
 Tucker v. Woods, 12 Johns. 190 ; James ti. Pulcrod, 5 Texas, 512. 
 152 
 
THE CONSIDERATION. § 435 
 
 But sometimes implied promises grow out of what has been 
 done under express ones. This subject has already been 
 considered under other heads ; ^ yet a few words further, 
 partly by way of repetition, seem desirable. 
 
 § 433. Without Consideration. — Though a contract is 
 without consideration, yet, if it is voluntarily and with full 
 knowledge of the facts'* executed, the property in the thing, 
 whether money or a chattel, is transferred, and it qannot be 
 reclaimed.^ Of this, a common illustration is a — 
 
 § 434. Gift — (Delivery.) — A mere promise of a thing to 
 one is void for want of consideration, and words of present 
 gift are only a promise.* But when the promise is executed 
 by the delivery of the thing, the imperfection in the con- 
 tract of gift is cured, and the thing cannot be reclaimed.'' 
 And, — 
 
 ' § 435. Under Seal without Delivery. — As delivery is 
 not essential to a sale of personal property where no rights 
 of third persons are concerned ; * so it is not to a gift, if 
 made by a writing under seal, which imports a considera- 
 tion.' But, — 
 
 ' See ante, § 95 et seq., 138 et seq., 185 et aeq., 425-427. 
 
 2 Ante, 2 407, 427. 
 
 ' Matthews v. Smith, 67 N. C. 374 ; Newell v. March, 8 Ire. 441 ; Hubbard v. 
 Hickman, 4 Bush, 204. 
 
 * Bremer u. Harvy, 72 N. C. 176 ; Irons v. Smallpieoe, 2 B. & Aid. 551 ; 
 Madison v. Shockley, 41 Iowa, 451 ; Morse v. Low, 44 Vt. 561 ; Pfearson v. 
 Pearson, 7 Johns. 26 ; Phelps v. Pond, 23 N. Y. 69 ; Thompson v. Dorsey, 4 
 Md. Ch. 149 ; Johnson v. Stevens, 22 La. An. 144 ; Spencer v. Vance, 57 
 Misso. 427. 
 
 5 Faxon v. Durant, 9 Met. 839 ; Camp's Appeal, 36 Conn. 88 ; Succession of 
 DePouilly, 22 La. An. 97; Eockwoodi). "Wiggin, 16 Gray, 402; Gardner v. 
 Merritt, 32 Md. 78 ; Ellis v. Secor, 31 Mich. 185 ; Smith v. Smith, 7 Car & P. 
 401 ; Bond v. Bunting, 28 Smith, Pa. 210 ; Marsh u. Puller, 18 N. H. 360 ; 
 Hillebrant v. Brewer, 6 Texas, 45. 
 
 « McCoy u. Moss, 5 Port. 88 ; "Visher v. Webster, 13 Cal. 58 ; Sidwell a. 
 Lobly, 27 HI. 438 ; Ingersoll v. Kendall, 13 Sm. & M. 611 ; Burt v. Dutcher, 
 34 N. Y. 493 ; Hooban v. Bidwell, 16 Ohio, 509 ; Ludwig v. Puller, 17 Maine, 
 162 ; post, ? 547. 
 
 ' McCutchen u. McCutchen, 9 Port. 650; Irons v. Smallpieoe, 2 B. & Aid. 
 651, 553 ; Horn v. Gartman, 1 Fla. 63 ; Hannon v. The State, 9 Gill, 440. See 
 
 153 
 
§ 441 LAW OP CONTBACTS. 
 
 §436. Mistake. — If no gift was intendeij, and the 
 whole transaction grew out of a mistaken belief that there 
 was a consideration, the result, we have already seen,^ will 
 be different. Also, — 
 
 § 437. Illegal, against Public Policy, etc. — If the con- 
 sideration was illegaP or against public policy, distinctions 
 will arise, already explained.^ 
 
 IV- Where ike Contract is Executed in Part. 
 
 § 438. New Consideration. — If a contract, imperfect for 
 want of consideration, is in part executed, — then, if the 
 contract is renewed on sufficient consideration, — the past 
 as well as the future is thereby made secure.* . Thus, — : 
 
 § 439. Past and Future Support. — An agreement to 
 pay for the support of a child, both past and future, in con- 
 sideration of a promise to continue the child's nurture, is 
 binding equally as to board already fiirnished and to future 
 board.® 
 
 V. Where the Consideration is .Executed. 
 
 § 440. Distinction important. — Of contracts executed 
 in part, those in which the consideration is executed, but 
 not the rest, require the most careful attention. The dis- 
 tinction is of the first importance. 
 
 § 441. Gift not a Consideration. — If a man makes a 
 gift of a thing to another, he cannot go back on his own act 
 and compel payment." Therefore what has been given, or 
 
 Butler V. Soofield, 4 J. J. Mar. 139 ; Gordon v. "Wilson, 4 Jones, N. C. 64 j 
 McEwen v. Troost, 1 Sneed, Tenn. 186; Abbott d. Williams, 2 Brev. 38. 
 
 1 Ante, I 425, 426. 
 
 ' Kerr v. Birnie, 25 Ark. 225. 
 
 s Ante, g 140-146. 
 
 * Met. Con. 201 ; Loomis v. Newhall, 15 Pick. 159; Andrews v. Ives, 8 Conn. 
 368. 
 
 ' Wiggins V. Keizer, 6 Ind. 252. 
 
 * University «. McNair, 2 Ire. Eq. 605. 
 
 154 
 
THE CONSIDERATION. § 445 
 
 otherwise voluntarily paid, or transferred, with full knowl- 
 edge of the facts, without expectation of any thing further 
 in return, as already explained,^ or with no legal liability 
 assumed at the time on the other side, can be no considera- 
 tion for a fresh promise.'' Therefore — 
 
 § 442. Past Consideration. — It is a sort of general doc- 
 trine that a pij,st and executed consideration will not sustain 
 a promise.'* But the past and present may be so connected 
 that it will. Thus, — 
 
 § 443. At Request. — If what has been done was at the 
 request of the promisor, it will sustain the promise ; * be- 
 cause, as the reader perceives, though the request, the 
 doing, and the proniise may have been on different days, or 
 even in diflFerent years, the whole thus becomes one trans- 
 action. And, — 
 
 § 444. Implied Request. — Where the evidence or cir- 
 cumstances do not clearly show that the executed considera- 
 tion was a gratuity, or was something else which cast no 
 legal obligation on the promisor, and out of which the law 
 created no promise, the jury under direction of the court 
 may infer, as of fact or of law, a previous request, to satisfy 
 the justice of the particular case.^ Of course, — 
 
 § 445. Previous Obligation. — If, under the circum- 
 stances, the law had created a promise when the considera- 
 tion passed,^ — as, if a benefit had been confen-ed on the 
 
 1 Ante, ? 427, 433, 434. 
 
 ' Watson V. Dunlap, 2 Cranch C. C. 14; Bulkley v. Landon, 2 Conn. 404; 
 Eastwood V. Kenyon, 11 A. & E. 438. 
 
 3 Ante, 2 431 ; Mills ». Wyman, 3 Pick. 207 ; Loomis v. Newhall, 15 Pick 
 159 ; Barlow v. Smith, 4 Vt. 139 ; Ootastock v. Smith, 7 Johns. 87 ; Tomlinson 
 V. Smith, 2 Iowa, 39. 
 
 * Hunt V. Bate, 3 Dy. 272 a ; Lampleigh u. Brathwait, Hob. 105 * ; Carson 
 V. Clark, 1 Scam. 113 ; Comstock v. Smith, 7 Johns. 87 ; Allen v. "Woodward, 
 2 Post. N. H. 544; Alcinbrook v. Hall, 2 Wils. 309; Tappin u. Broster, 1 Car. 
 & P. 112. 
 
 5 Oatfield V. Waring, 14 Johns. 188 ; Hicks v. Burhans, 10 Johns. 243 ; Wil- 
 son V. Edmonds, 4 Post. N. H. 517 ; Doty v. Wilson, 14 Johns. 378. 
 
 » Ante, g 72 et seq. ; Exall v. Partridge, 8 T. K. 308. 
 
 155 
 
§ 447 LAW OF CONTKACTS. 
 
 promisor and accepted, with no evidence of its being a 
 gratuity,^ — or, if the promise is made in discharge of a 
 subsisting legal obligation, however it may have origmated 
 in some prior transaction,^ — the consideration will require no 
 previous request to make it adequate ; though, in mere 
 form of technical pleading, such an allegation may be neces- 
 sary.^ 
 
 VI. The Waiver of Imperfections in the Consideration. 
 
 § 446. Waiving Legal Rights ta General. — The doc- 
 trine is familiar, that no man is compellable to stand on a 
 right which the law gives him. He can always waive it, if 
 he chooses. And the rule applies equally to a right con- 
 ferred by the common law, by a statute, and by a written 
 constitution.* Therefore, — 
 
 § 447. Bar of Statute of Liimitations. — If the right to 
 sue upon a violated contract is barred by the statute of 
 limitations, the delinquent may waive this defence.^ One 
 
 1 Ante, § 74-77 ; Seymour v. Marlboro, 40 Vt. 171 ; Kenan v. HoUoway, 16 
 Ala. 53. 
 
 2 Beadle v. 'Whitlook, 64 Barb. 287 ; Jennings v. Brown, 12 Law J. N. s. Ex. 
 86 (which compare with Beaumont v. Keeve, 8 Q. B. 483) ; Allen c. Davison, 
 16 Ind. 416 ; Maurer v. Mitchell, 9 Watts & S. 69 ; Spaulding v. Crawford, 27 
 Texas, 155 ; Cook v. Bradley, 7 Conn. 57 ; Bailey v. Bussing, 29 Conn. 1 ; 
 Merrick v. Bank of the Metropolis, 8 Gill, 59; Swift v. Crocker, 21 Pick. 241 ; 
 "Warner v. Booge, 15 Johns. 238. In Beaumont v. Keeve, supra, Lord Denman, 
 0. J., at p. 487, said : "An express promise cannot be supported by a considera- 
 tion from which the law could not imply a promise, except where the express 
 
 , promise does away with a legal suspension or bar of a right of action which, 
 but for such suspension or bar, would he valid;" adding: "This result we 
 arrived at, after much deliberation, and we now adhere to it." See Kunna- 
 maker v. Cordray, 54 Bl. 303. 
 
 ' Met. Con. 193 et seq. 
 
 * 1 Bishop Grim. Law, ^ 995-1007; 1 Bishop Grim. Proced. I., I 117-125; 
 post, g 655 et seq. 
 
 ' The reason of the doctrine is not always put in these terms ; but the views 
 in text accord, if not with the language of the modern decisions, with the deci- 
 sions themselves. The old notion, that the lapse of the statutory period 
 created a presumption of payment, consequently that payment would be en- 
 156 
 
THE CONSIDERATION. § 450 
 
 method of waiver is to neglect to plead the statute when 
 sued.i But the common method, which is sufficient, is by 
 an express promise to pay, or by such an acknowledgment 
 of present indebtedness as implies a promise.^ Again, — 
 
 § 448. Bankruptcy, etc. — If a debt is discharged under 
 bankruptcy or insolvency laws, the debtor, by a promise to 
 pay it, waives the benefit of those laws, and payment may 
 be compelled.^ Once more, — 
 
 § 449. Endorser — Demand and N'otice. — An endorser 
 of a note or bill, who is released from liability by the holder's 
 neglecting demand and notice, may waive this advantage. 
 And he does waive it if he promises payment with full 
 knowledge of the facts.* But, — 
 
 § 450. Release by Party. — If the party, claiming under 
 a contract, or to whom a debt is due, voluntarily, for a suf- 
 
 forced whenever this presumption is rebutted by the evidence, is exploded. A 
 late English writer, speaking of these and the other like cases, says: "The 
 efficacy of such promises is now referred to the principle that a person may 
 renounce the benefit of a law made for his own protection.'' Leake Con. 317. 
 And he cites Earle v. Oliver, 2 Bxch. 71, 89 ; Flight v. Keed, 1 H. & C. 703, 
 713, 716; note to Wennall v. Adney, 3 B. & P. 247, 249. Among American 
 decisions, see Shepard v. Rhodes, 7 K. I. 470. 
 
 1 1 Saund. Wms. ed. 283, notes ; 2 lb. 63 a. 
 
 2 Chasemore v. Turner, Law Eep. 10 Q. B. 500, 14 Eng. Rep. 304, and 
 Moak's note at p. 326 ; Johns v. Lantz, 13 Smith, Pa. 324 ; Georgia Ins. Co. v. 
 EUicott, Taney, 130; Chambers v. Rubey, 47 Misso. 99; Simonton v. Clark, 
 65 N. C. 525; Harper v. Fairley, 53 N. Y. 442; Turner v. Smart, 6 B. & C. 
 608; Norton v. Colby, 52 El. 198. See Shapley v. Abbott, 42 N. Y. 443; 
 Beardsley v. Hall, 36 Conn. 270. 
 
 ' Penn v. Bennet, 4 Camp. 205 ; Trueman v. Fenton, Cowp. 544 ; Roberts v. 
 Morgan, 2 Esp. 736 ; Lang v. Mackenzie, 4 Car. & P. 463 ; "Williams v. Dyde, 
 Peake, 68 ; Besford v. Saunders, 2 H. Bl. 116 ; Fleming v. ;Hayne, 1 Stark. 
 370; Lerow v. "Wilmarth, 7 Allen, 463; Williams «. Bugbee, 6 Cush. 418; 
 Eitzgerald v. Alexander, 19 "Wend. 402 ; Kenyon v. "Worsley, 2 R. L 341 ; Balti- 
 more, etc.. Railroad v. Clark, 19 Md. 509 ; Smith v. Richmond, 19 Cal. 476 ; 
 Earnest u. Parke, 4 Rawle, 452 ; Scouton v. Eislord, 7 Johns. 36 ; Turner v. 
 Chrisman, 20 Ohio, 332 ; Farmers, etc., v. Flint, 17 "Vt. 508. 
 
 * Sigerson v. Mathews, 20 How. U. S. 496 ; Thornton v. "Wynn, 12 "Wheat. 
 183 ; Ladd v. Kenney, 2 N. H. 840 ; Arnold v. Dresser, 8 Allen, 485 ; Low v. 
 Howard, 10 Cush. 159; First National Bank v. Crittenden, 2 Thomp. & C. 118. 
 
 157 
 
§ 453 LAW OP CONTRACTS. 
 
 ficient consideration, or under seal with no consideration in 
 fact, releases his claim, the obligation thus released will not 
 support a fresh promise of payment, nor is it in any way 
 revived thereby. And — 
 
 § 451. Why the Distinction. — The reason for the differ- 
 ence is, that this is not a case wherein the law has tendered 
 to the party an advantage, which he may therefore waive ; 
 but, by the act of the parties, the contract or debt has 
 ceased to exist. There is nothing to waive.^ 
 
 § 452. Contrary Opinions. — Contrary to this view, there 
 are some cases ,^ not very recent, which put a release under 
 seal, where no actual consideration lor it passes, on the 
 same ground as a discharge in bankruptcy ; holding, as to 
 both, that the new promise rcAdves the debt, not as a 
 waiver of a legal right, but on the now exploded doctrine 
 of a — 
 
 § 453. Moral Obligation. — It was once held, that, if one 
 under what was termed by the courts a moral obligation to 
 do a thing, promised to do it, this was a consideration 
 rendering the promise valid in law.' Such a doctrine, 
 carried to its legitimate results, would release the tribunals 
 from the duty to administer the law of the land ; and put, 
 in the place of law, the varying ideas of morals, which the 
 changing incumbents of the bench might from time to time 
 entertain. It does not, therefore, now prevail in England,* 
 nor probably to any wide extent in our States ; * though 
 
 ' Valentine v. Poster, 1 Met. 520 ; Montgomery v. Lampton, 3 Met. Ky. 519 ; 
 "Warren v. "Whitney, 24 Maine, 561; Snevily v. Kead, 9 Watts, 396. 
 
 * Willing V. Peters, 12 S. & E. 177 (perhaps overruled by Snevily v. Read, 
 9 Watts, 396) ; Stafford v. Bacon, 25 Wend. 384. 
 
 2 Lee V. Muggeridge, 5 Taunt. 37 ; Vance v. Wells, 8 Ala. 399. 
 
 * Eastwood i;. Kenyon, 11 A. & E. 438; Beaumont v. Reeve, 8 Q. B. 483, 
 487; Jennings v. Brown, 9 M. & W. 496; note to Wennall v. Adney, 3 B. & 
 P. 247, 249. 
 
 5 Dodge u. Adams, 19 Pick. 429 ; Ehle v. Judson, 24 Wend. 97 ; Waters v. 
 Bean, 16 Ga. 358 ; Updike v. Titus, 2 Beasley, 151. 
 158 
 
THE CONSIDERATION. § 454 
 
 there are States in which it has been adhered to so recently 
 that we could not say it is not there the law now.^ 
 
 § 454. The Doctrine of this Chapter restated. 
 
 In morals, one who creates an expectation in another, by 
 a promise, is bound to make the expectation good.^ And, 
 if we look into the reason, this case does not, in a just view, 
 differ essentially from a class of legal ones in which the 
 courts 'hold that there is a consideration.^ The promise was 
 a gift, which indeed the promisor was not bound to make ; 
 but having made it, he has morally no more right to reclaim 
 it than to take back any other delivered gift. If he does 
 reclaim it, he inflicts a mental wrong, and often a pecuni- 
 ary one also. The promisee may have so acted on the 
 strength of the promise that the withdrawal of it will be 
 his ruin. Still, as the law of the land cannot redress all 
 wrongs, it is doubtless wise in requiring a pecuniary consid- 
 eration for those promises which it will enforce. Whatever 
 has a market value, however small, in dollars and cents, is 
 an adequate consideration ; but a thing without such value 
 is not. Thus it is with contracts which are executory. 
 But an executed contract may be good though it was with- 
 out consideration. 
 
 ' Montgomery v. liampton, 3 Met. Ky. 519 ; Masser v. Ferguson, 5 Smith, 
 Pa. 475. I forbear to cite the body of the American authorities on either side 
 of this question, since they would occupy space to little purpose. Each prac- 
 titioner must determine the question, for his own State, upon an examination 
 which could be but little aided by anything further here. 
 
 2 Paley Moral Phil. b. 3, pt. 1, c. 5. 
 
 3 As, for example, ante, | 422, 423. 
 
 159 
 
§ 458 LAW OF CONTRACTS. 
 
 CHAPTER XXV. 
 
 CONTRACTS ILLEGAL, IMMORAL, AND CONTKAKT TO THE POLICY 
 OF THE LAW AND TO PUBLIC POLICT. 
 
 5 455. Introduction. 
 456-472. General Doctrine. 
 473-496. Some Particular Contracts. 
 
 497. Doctrine of the Chapter restated. 
 
 § 455. How the Chapter divided. — We shall consider, 
 I. The General Doctrine ; II. Some particular Contracts. 
 
 I. The General Doctrine. 
 
 § 456. Indirect Means. — The law will not permit the 
 accomplishment, by indirect means, of a thing which it for- 
 bids the doing of directly.^ Hence — 
 
 § 457. Overturn what the Liaw would establish. — If 
 parties agree to do, or promote the doing of, a thing which 
 the law forbids, or which is indirectly subversive of what 
 the law was ordained to establish, their contract will not be 
 enforced by the courts ; as, — 
 
 § 458. Directly forbidden. — • Any act which is forbidden 
 either by the common or the statutory law — whether it is 
 malum in se, or merely malum prohibitum; ^ indictable,^ or 
 only subject to a penalty or foreiture ; * or however otherwise 
 
 1 Booth V. Bank of England, 7 CI. & F. 509, 540. 
 
 ' Cannan «. Bryce, 3 B. & Aid. 179, 183, 184; White v. Buss, 3 Cush. 448, 
 450. 
 
 ' Poplett V. Stockdale, Ryan & Moody N. P. 337 ; Fores v. Johnes, 4 Esp. 
 97; Gale v. Leokie, 2 Stark. 107. 
 
 *■ Bartlett v. Vinor, Carth. 261. 
 160 
 
AGAINST LAW, MORALS, POLICY. § 460 
 
 prohibited by a statute^ or the common law^ — cannot be 
 the foundation of a valid contract ; nor can anything auxil- 
 iary to, or promotive of, such act.^ 
 
 § 459. Immoral. — Prominent among the interests which 
 the law protects, are the public morals.* Therefore a con- 
 tract to commit an immoral act, or do what will be prejudicial 
 to the morals of the community, — contra bonos mores, as 
 the phrase is, — is void.^ But there are still other interests 
 equally cherished by the law ; the consequence whereof is, 
 that — 
 
 § 460. Against Public Policy. — A contract invading any 
 
 one of the other interests which the law cherishes, though 
 
 •the thing to be done or promoted is not indictable, and 
 
 not prohibited by any statute, termed a contract against 
 
 public policy (or sound policy) , is likewise void.* Finally, — 
 
 1 Peck V. Butt, 6 Selden, 294 ; Hathaway v. Mgran, 44 Maine, 67 ; Lord v. 
 Chadbourne, 42 Maine, 429; Cook v. Phillips, 56 N. Y. 310; Gaslight, etc., 
 Co. V. Turner, 8 Scott, 609, 6 Bing. N. C, 324 ; Yeates v. "Williams, 5 Pike, 
 684; Bemis v. Becker, 1 Kan. 226. 
 
 2 Carpenter v. Beer, Comb. 246 ; Cope v. Rowlands, 2 M. & W. 149, 2 Gale, 
 231. 
 
 ' Stanley v. Nelson, 28 Ala. 514; Milton v. Haden, 32 Ala. 30; Madison Ins. 
 Co. V. Porsyth, 2 Ind. 483; Siter v. Sheets, 7 Ind. 132 ; Ellsworth v. Mitchell, 
 31 Maine, 247; Hall v. Mullin, 5 Har. & J. 190, 193; Bayley v. Taber, 5 Mass. 
 286 ; Wheeler v. Kussell, 17 Mass. 258 ; Parrar v. Barton, 5 Mass. 395 ; Eoby «. 
 "West, 4 N. H. 285 ; Nourse w. Pope, 13 Allen, 87; Solomon v. Dreschler,-* 
 Minn. 278 ; Downing v. Kinger, 7 Misso. 585 ; Carleton v. "Whitcher, 5 N. H. 
 196 ; Brackett v. Hoyt, 9 Post. K. H. 264 ; Bell v. Quin, 2 Sandf. 146 ; Seiden- 
 bender v. Charles, 4 S. & E. 159 ; Mitchell v. Smith, 1 Binn. 110, 118 ; Maybin v. 
 Coulon, 4 Ball. 298 ; Biddis v. James, 6 Binn. 321 ; Hale v. Henderson, 4 
 Humph. 199 ; Elkins v. Parkhurst, 17 Yt. 105 ; Spalding v. Preston, 21 Vt. 9 ; 
 Territt v. Bartlett, 21 Vt. 184 ; Eutland Bank v. Parsons, 21 Vt. 199 ; Bancroft 
 V. Dumas, 21 Vt. 456 ; Armstrong v. Toler, 11 "Wheat. 258. 
 
 * 1 Bishop Grim. Law, g 500. 
 
 5 2 Kent Com. 466 ; Pores v. Johns, 4 Esp. 97 ; Jones v. Eandall, Cowp. 37, 
 89 ; Porsythe v. The State, 6 Ohio, 19, 21 ; Dumont v. Dufore, 27 Ind. 263 ; 
 Merrick v. Bank of the Metropolis, 8 Gill, 59. 
 
 6 2 Kent Com. 466; Met. Con. 229; Pollock Con. 251; Jones v. Eandall, 
 Cowp. 37, 39; Printing, etc., Co. u. Sampson, Law Eep. 19 Bq. 462; Martini;. 
 Bartow Iron "Works, 35 Ga. 320, 329 ; Guenther v. Dewien, 11 Iowa, 133 ; Rey- 
 nolds V. Nichols, 12 Iowa, 398 ; Odineal v. Barry, 24 Missis. 9. 
 
 11 161 
 
§ 465 LAW OF CONTRACTS. 
 
 § 461. Policy of the Law. — The term " policy of the law " 
 is> sometimes employed in the same sense as public policy, 
 and perhaps the distinction between the two is not well 
 established. But what is here meant is, that the law, for 
 its own good order, as well as for the good of the com- 
 munity, has established certain channels within which all 
 rights of property must flow, and parties cannot by their 
 contracts create new channels. For example, — 
 
 § 462. Conveyances to Husband and Wife. — Under 
 the common law, a husband and his. wife cannot, by any 
 form of contract, or by any other means, become tenants 
 by entireties of personal property ; neither, according to 
 respectable opinions, though not by universal doctrine, can 
 real estate be so conveyed to them as to render them either 
 joint tenants or tenants in common of it, but when the 
 attempt is made the law Avill declare them to be tenants by 
 entireties.^ Other illustrations are numerous. 
 
 § 463. Repeal of Statute. — If a contract is void as 
 contrary to a statute, the repeal of the statute does not 
 make it good, but it remains void.^ Neither will a subse- 
 quent promise render it valid, being without consideration ;^ 
 nor will any new statute.* 
 
 § 464. New Statute. — Where the agreement was good 
 when made, but a subsequent enactment has rendered it ille- 
 gal, things done under it before the enactment remain valid.' 
 A § 465. Intent — Mistake of Fact and Law. — The ele- 
 mentary principles of the criminal law apply to'the contracts 
 now under consideration. For, as in the criminal law one 
 who intentionally does a forbidden thing is punishable though 
 
 1 1 Bishop Mar. Women, § 211, 616-619. 
 
 » Q-illiland v. Phillips, 1 S. 0. 152; Eobinson «. Barrows, 48 Maine, 186; 
 Banchor v. Mansel, 47 Maine, 58 ; Milne v. Huber, 3 McLean, 212. 
 
 8 Dever v. Corcoran, 3 Allen, N. B., referred to in Kobinson v. Barrows, 
 supra, at p. 189. 
 
 * Mays V. Williams, 27 Ala. 267. 
 
 " Bennett v. Woolfolk, 15 Ga. 213 ; Bradford v. Jenkins, 41 Missis. 328. 
 And see Tucker «. Stokes, 3 Sm. & M. 124 ; post, \ 628. 
 162 
 
.AGAINST LAW, MORALS, POLICY. § 468 
 
 not aware that the law forbids it ; ^ so, to reader a contract 
 void as against public policy, it is not required that the 
 parties should understand this to be its character and effect.* 
 And as, in the criminal law, one who through an innocent 
 mistake of facts does an apparently indictable act, escapes 
 punishment ; ^ so a man is not civilly to suffer by his con- 
 tract being declared void as against law or public policy, if 
 ignorant of the facts which make it void.* Consequently, — 
 
 § 466. Innocent Party. — A father, who lets .his minor 
 son to service, may recover compensation, though, unknown 
 to him, the son has been employed in selling liquor contrary 
 to a statute which rendered the sales indictable.® And if an 
 actor, who plays in a theatrical exhibition which is unlaw- 
 ful because not licensed, does not know that it is not licensed, 
 he may recover for his services.^ On this principle, — 
 
 § 467. Indemnity to Ofllcer Serving Process. — When ' 
 an officer is called upon to arrest one or attach his goods, 
 and there is doubt as to the identity of the person or the 
 ownership of the goods, he may demand a bond of in- 
 demnity ; ' then, though the seizure proves to be unlawful, 
 the bond is valid if the parties acted in good faith, not 
 knowing the real facts ; otherwise it is invalid.* And — 
 
 § 468. Indemnity to Private Person. — An indemnity to 
 a private person, who assists in taking property under a 
 claim of right, is likewise valid, when the act is in good 
 faith, though it turns out to be a trespass.' 
 
 1 1 Bishop Crim. Law, ? 294, 300, 309. 
 
 2 Saratoga County Bank v. King, 44 N. Y. 87, 92. 
 ' 1 Bishop Crim. Law, g 301, 303. 
 
 * Quirk V. Thomas, 6 Mich. 67. 
 
 ' Emery v. Kemp^on, 2 Gray, 257. 
 
 ' Eoys V. Johnson, 7 &ray, 162. See ante, J 141. 
 
 ' Drake Attach, g 189. 
 
 8 Marsh v. Gold, 2 Pick. 285; Anderson v. Farns, 7 Blackf. 343; Lanjpton 
 V. Taylor, 5 Litt. 273 ; Davis v. Tibbats, 7 J. J. Mar. 264 ; Stark v. Baney, 18 
 Cal. 622; McCartney v. Shepard, 21 Misso. 573 ; Ives v. Jones, 3 Tie. 538. 
 
 » Avery v. Halsey, 14 Pick. 174 ; Stone v. Hooker, 9 Cow. 154. And see 
 MoLauren v. Graham, 26 Missis. 400. 
 
 163 
 
§ 472 LAW OF CONTKACTS. 
 
 § 469. Indemnity for Neglect of Duty. — An under- 
 taking to indemnify an officer for neglecting Ids duty is, 
 within the principle under consideration, void.^ But, — 
 
 § 470. Taking Security. — It is not a neglect in him, 
 when making an attachment, to take security for the debt ; 
 so that a note given him on consideratioh of his releasing 
 or forbearing an attachment is good.^ 
 
 § 471. In Part illegal. — A contract illegal in part and 
 legal as to.the residue, is void as to all, when the two parts 
 cannot be separated ; when they can be, the good will stand 
 and the rest fall. One entire consideration cannot, within 
 this rule, be separated, though composed of distinct items, 
 some of which are legal and others illegal.^ 
 
 § 472. General and Particular Views. — Some of the 
 particular views, to be presented under our next sub-title, 
 might be so generalized as to find a place here. And while 
 the foregoing doctrines are general, they have also their 
 particular applications ; also, while the following proposi- 
 tions are particular, they are likewise of general applicability. 
 
 1 Hodson V. Wilkins, 7 Greenl. 113 ; Ayer v. Hutchins, 4 Mass. 370; Churchill 
 V. Perkins, 5 Mass. 5il. 
 
 2 Poster V. Clark, 19 Pick. 329 ; Shotwell v. Hamblin, 23 Missis. 156; Eandle 
 V. Harris, 6 Yerg. 509. See Webber v. Blunt, 19 Wend. 188 ; Winter v. Kinney, 
 1 Comst. 365; Hunter v. Agee, 5 Humph. 57 ; Prewitt v. Garrett, 6 Ala. 128. 
 
 3 Yale V. Rex, 6 Bro. P. C. 27, 31 ; KImbrough v. Lane, 11 Bush, 556 ; 
 Saratoga County Bank v. King, 44 N. Y. 87 ; Chandler v. Johnson, 39 Gra. 85; 
 Braitch v. Guelich, 37 Iowa, 212 ; Bixby v. Moor, 51 N. H. 402 ; Paokler v. 
 Pord, McCahon, 21; Hanauer v. Gray, 25 Ark. 350; Widoe u. Webb, 20 
 Ohio State, 431 ; Jones's Case, 1 Leon. 203j Mason v. Watkins, 2 Vent. 109 ; 
 Valentine v. Stewart, 15 Cal. 387 ; Dean v. Emerson, 102 Mas^. 480 ; More v. 
 Bonnet, 40 Cal. 251 ; Newbury Bank v. Stegall, 41 Missis. 142. Where a 
 
 f promissory note is given in part payment of a running account, consisting of 
 items some of which are legal and others illegal, it has b§en held that, if the 
 legal items do not exceed the amount of the note, it is good ; because the 
 payee could not have applied it on the illegal ones. Warren v. Chapman, 105 
 Mass. 87. A running account, therefore, before it is made the consideration 
 for a new promise, is separable ; not afterward. And Bixby v. Moore, supra, 
 holds, that one cannot recover anything ou a quantum meruit for an entire 
 service, where a small part of his labor consisted in selling liquor contrary to 
 law. 
 
 164 
 
AGAINST LAW, MORALS, POLICY. § 475 
 
 Divisions, made by an author, are for practical convenience 
 only; the law itself is seamless.^ 
 
 II. Some Particular Contracts. 
 
 §473. Compouiiding. — Any agreement to compound 
 an offence or a penal action, of a sort to be indictable,^ is, 
 therefore, void as against law.' But — 
 
 § 474. Amends. — This doctrine does not render void a 
 promise or security given as mere amends for the civil 
 wrong* involved in the criminal transaction.^ 
 
 § 475. Obstructing Judicial Justice. — So, though a con- 
 tract does not amount to compounding an offence, if it tends 
 in any way to obstruct judicial proceedings, and especially 
 criminal justice, it is void;^ as, improperly to stifle a 
 criminal prosecution,' to abstain from testifying as a wit- 
 ness in a suit,^ to procure a witness to swear to a particular 
 thing,' or to pay a witness more if the party succeeds than 
 if he does not.^" 
 
 ' And see Jones v. Eandall, Cowp. 37, 39. 
 
 ' 1 Bishop Crim. Law, g 709 et seq. 
 
 ' Ante, 2 458 ; Osbaldeston v. Simpson, 7 Jur. 734 ; Williams v. Bayley, 
 Law Kep. 1 H. L. 200 ; Soule v. Bonney, 87 Maine, 128 ; Commonwealth v. 
 Pease, 16 Mass. 91; Bell v. Wood, 1 Bay, 249; Mattocks v. Owen, 5 Vt. 42; 
 Plumer v. Smith, 5 N. H. 653 ; Cameron v. McFarland, 2 Law Repos. 415 ; 
 Corley v. Williams, 1 Bailey, 588 ; Hinesburgh v. Sumrier, 9 Vt. 23 ; State Bank 
 B.Moore, 2 Southard, 470; Bailey v. Buck, 11 Vt. 252; Kimbrough ». Lane, 
 11 Bush. 556. 
 
 * Catlin V. Heuton, 9 Wis. 476 ; Mathison v. Hanks, 2 Hill, S. C. 625 ; 
 Puckett V. Eoquemore, 55 Ga. 235. 
 
 5 1 Bishop Crim. Law, g 264-278. 
 
 ^ See, for illustrations, Dixon v. Olmstead, 9 Vt. 310 ; Douville v. Merrick, 
 25 Wis. 688 ; Stoutenburg v. Lybrand, 13 Ohio State, 228 ; Porter v. Jones, 52 
 Misso. 399 ; Price v. Caperton, 1 Duvall, 207. 
 
 ' Shaw V. Reed, 30 Maine, 105 ; Ward v. Allen, 2 Met. 53 ; Baker v. Farris, 
 61 Misso. 389 ; Barclay v. Breckinridge, 4 Met. Ky. 374 ; Snyder v. Willey, 
 38 Mich. 483 ; Southern Express Co. v. Duffey, 48 Ga. 358 ; Soule v. Bonney, 
 37 Maine, 128 ; Keir v. Leeman, 6 Q. B. 308. 
 
 8 Valentine v. Stewart, 15 Cal. 387; Badger ». Williams, 1 D. Chip. 187. 
 
 ' Patterson v. Conner, 48 Cal. 369. 
 
 "> Dawkins v. Gill, 10 Ala. 206. 
 
 165 
 
§ 478 LAW OF CONTEACT8. 
 
 § 476 . Settling Private Suit — Bastardy. — It is 
 
 commendable to compromise a private suit ; and, within this 
 principle, an agreement not to prosecute under the bastardy 
 act is a good consideration for a promise.^ 
 
 § 477. Champertous Contracts — are void at the com- 
 mon law. The old doctrines on this subject have been 
 greatly modified in later times, and the present rulings 
 differ in our States. In some States, this impediment to the 
 enforcing of a contract has almost ceased to exist ; in others, 
 it remains in something near its original vigor.^ 
 
 § 478. Restraint of Trade. — An agreement not to carry 
 on a particular trade, which is lawful, and beneficial to the 
 community and to the individual, is void as against public 
 policy.' But neither public nor private interests are preju- 
 diced where persons in an employment divide, one conduct- 
 ing it in one place and another in another. Therefore, if, 
 on good reason, and for a valuable consideration,* a man 
 promises not to carry on a specified business within a defined 
 locality of reasonable extent, either generally, or especially 
 where the restriction is also to a limited number of years, — 
 and perhaps, in some very exceptional cases, under unusual 
 
 1 Burgen v. Straughan, 7 J. J. Mar. 583; Hays v. McParlan, 32 Ga. 699; 
 "Weaver v. Waterman, 18 La. An. 241 ; Howe v. Litchfield, 3 Allen, 443 ; Eice 
 0. Maxwell, 13 Sm. & M. 289; Stephens v. Spiers, 25 Misso. 886; Sharp v. 
 Teese, 4 Halst. 352 ; Payne v. Eden, 3 Caines, 213 ; Maxwell v. Campbell, 8 
 Ohio State, 265 f Knight v. Priest, 2 Vt. 507; Robinson v. Crenshaw, 2 Stew. 
 & P. 276. 
 
 2 2 Bishop Crim. Law, J 121-140; Evans v. Bell, 6 Dana, 479 ; McMahan ». 
 Bowe, 114 Mass. 140 ; Martin v. Clarke, 8 R. 1. 389 ; Brown v. Beauchamp, 5 
 T. B. Monr. 413; Arden v. Patterson, 5 Johns. Ch. 44; McMicken v. Perin, 
 18 How. U. S. 507; Byrd v. Odem, 9 Ala. 755 ; Scobey v. Ross, 13 Ind. 117 ; 
 Coquillard v. Bearss, 21 Ind. 479 ; Slade v. Rhodes, 2 Dev. & Bat. Eq. 24 ; 
 Weedon v. "Wallace, Meigs, 286 ;. Burt v. Place, 6 Cow. 431 ; Nichols v. Bunt- 
 ing, 3 Hawks, 86 ; Martin v. Amos, 13 Ire. 201. 
 
 3 Alger V. Thacher, 19 Pick. 51; Hilton «. Eckersley, 6 Ellis & B. 47, 66; 
 Mitchel V. Reynolds, 1 P. "Wms. 181; Homer v. Ashford, 3 Bing. 328; Dean 
 V. Emerson, 102 Mass. 480; Ross v. Sadgbeer, 21 "Wend. 166; Heichew v. 
 Hamilton, 3 Greene, Iowa, 596. 
 
 * Ante, § 23 ; Met. Con. 233. 
 
 166 
 
AGAINST LAW, MORALS, POLICY. § 479 
 
 circumstiinces, where the restriction is for a short time with 
 no bound of space, — the undertaking is binding upon him.^ 
 And one may lawfully agree, that, during a given time, he 
 will manufacture for the person with whom he is contract- 
 ing, and no other .^ 
 
 § 479. Meaning of "Reasonable Space." — What is a 
 reasonable space, within the foregoing doctrine, cannot 
 perhaps be defined ; except that it may be large enough to 
 render the contract effectual for its lawful purpose, yet not 
 palpably larger. Always the full extent of the State will 
 be too great.^ And what is reasonable will depend much 
 on the nature of the territory, its demands, and the sort of 
 business.* A physician may restrict himself from a particu- 
 lar town and its vicinity.® And the like principle applies 
 to other callings.® > 
 
 ' Perkins v. Clay, 54 N. H. 518 ; Saratoga County Bank v. King, 44 N. T. 
 87, 91; Guerand v. Bandelet, 32 Md. 561; Jenkins v. Temples, 39 Ga. 655; 
 Treat v. Shoninger Melodeon Co., 35 Conn. 543 ; Hatcher v. Andrews, 5 Bush. 
 561 ; Jones v. Heavens, 4 Ch. D. 636 ; Leather Cloth Co. v. Lorsont, Law Rep. 
 9 Eq. 345; McAlister v. Howell, 42 Ind. 15; Grasselli «. Lowden, 11 Ohio 
 State, 349; Holmes u. Martin, 10 Ga. 503; Chappel v. Brockway, 21 "Wend. 
 157 ; Kellogg v. LarMn, 3 Chand. 133 ; Beard v. Dennis, 6 Ind. 200 ; Pierce v. 
 ■Woodward, 6 Pick. 206. 
 
 2 Schwalm ». Holmes, 49 Cal. 665. 
 
 ' More V. Bonnet, 40 Cal. 251 ; Dean v. Emerson, supra ; Nobleg v. Bates, 
 7 Cow. 307; Taylor i). Blanchard, 13 Allen, 370. 
 
 * Duffy t>. Shockey, 11 Ind. 70; Whitney v. Slayton, 40 Maine, 224; Gilman 
 ■V. Dwight, 13 Gray, 356 ; Hitchcock v. Coker, 6 A. & E. 438, 454. 
 
 5 Warfield v. Booth, 33 Md. 63 ; McClurg's Appeal, 8 Smith, Pa. 51 ; Butler 
 V. Burleson, 16 Vt. 176 ■; Davis v. Mason, 5 T. E. 118. 
 
 « Grundy v. Edwards, 7 J. J. Mar. 368 ; Archer v. Marsh, 6 A. & E. 959; 
 California Steam Nav. Co. v. "Wright, 6 Cal. 258 ; Dunlop v. Gregory, 6 Seld. 
 241 ; Bowser v. Bliss, 7 Blackf. 344 ; Clark v. Crosby, 37 "V^t. 188 ; Lauben- 
 heimer v. Mann, 17 "Wis. 542 ; Pierce v. Puller, 8 Mass. 223 ; Perkins v. Lyman, 
 9 Mass. 522 ; Allsopp v. "Wheatcroft, Law Eep. 15 Eq. 59 ; Horner v. Graves, 7 
 Bing. 735 ; Grasselli v. Lowden, 11 Ohio State, 349, 357 ; Bunn v. Guy, 4 East, 
 190. A patent being a monopoly, perhaps the general doctrines are qualified 
 when applied to the sale of patented articles. And see Kinsman v. Park- 
 hurst, 18 How. U. S. 289 ; Billings o. Ames, 32 Misso. 265 ; Costar v. Brush, 
 25 "Wend. 628 ; Morse Twist Drill, etc., Co. v. Morse, 103 Mass. 73. 
 
 167 
 
§ 481 LAW OF CONTRACTS. 
 
 § 480. Conspiring to defraud Third Person. — If two 
 
 persons agree to defraud a third, whether at an auction or 
 elsewhere, such executory agreement is void as being unlaw- 
 fiil.^ Beyond this, — 
 
 § 481. Auction Sales. — Sales by auction are a means of 
 converting lands and chattels into money under urgent cir- 
 cumstances, of settling estates of deceased persons, and the 
 like ; so that the public interests require them to be con- 
 ducted with freedom and fairness. Therefore agreements 
 distinctly repugnant to these interests are void as against 
 public policy. The decisions are perhaps not minutely in 
 accord as to what cases are within this principle ; but, if 
 two persons, really competing for an article, agree that one 
 shall abstain from bidding and the profits shall be divided, 
 this is void.^ And so are all agreements, in whatever form, 
 to stifle fair competition.' On the other hand, partners, or 
 persons contemplating a partnership as to the particular 
 thing ; several, who each want a part, and not the whole, of 
 the thing, and are to divide it between themselves ; and 
 others, whose object is not an undue advantage but a fair 
 purchase, may enter into a valid arrangement for one to bid 
 and the rest abstain.* 
 
 1 Sternburg v. Bowman, 103 Mass. 326 ; Harwood v. Knapper, 50 Misso. 456 ; 
 Heineman ». Newman, 55 Ga. 262 ; Powell v. Inman, 8 Jones, N. C. 436 ; Bliss 
 V. Matteson, 45 N. Y. 22 ; Davison v. Seymour, 1 Bosw. 88 ; Jackson v. 
 Duchaire, 3 T. K. 551; McKewan v. Sanderson, Law Rep. 15 Eq. 229, 234; 
 Hamilton v. Scull, 25 Misso. 165 ; Penton v. Ham, 85 Misso. 409. 
 
 ' Doolin V. Ward, 6 Johns. 194 ; Wilbur v. How, 8 Johns. 444 ; National 
 Bank of Metropolis v. Sprague, 5 0. B. Green, 159 ; Jenkins v. Prink, 30 Cal. 
 586 ; Loyd v. Malone, 23 111. 43 ; Wooton v. Hinkle, 20 Misso. 290 ; Sharp v. 
 Wright, 85 Barb. 236. On this point the English doctrine appears to be the 
 other way. Galton v. Emuss, 1 Collier, 243. 
 
 ' Gardiner v. Morse, 25 Maine, 140 ; James v. EuloTod, 5 Texas, 512 ; Hunt 
 V. Frost, 4 Gush. 54 ; Hook«. Turner, 22 Misso. 333 ; Jones v. Caswell, 8 Johns. 
 Cas. 29; Thompson v. Davies, 13 Johns. 112; Ingram v. Ingram, 4 Jones, N. 
 0. 188 ; Martin «. Eanlett, 5 Rich. 541 ; Brisbane v. Adams, 3 Comst. 129 ; 
 Atcheson v. Mallon, 43 N. Y. 147 ; Gibbs v. Smith, 115 Mass. 592. 
 
 * Breslin v. Brown, 24 Ohio State, 565; National Bank of Metropolis ». 
 168 
 
AGAINST LAW, MORALS, POLICY. § 484 
 
 § 482. Liquor Laws. — If a statute prohibits the sale of 
 intoxicating liquors except under specified circumstances, 
 an executory contract of sale contrary to its provisions, or a 
 promise to pay the purchase money, is, therefore, void.^ 
 
 § 483. Lord's Day. — Statutes making punishable or 
 penal the violation of the Lord's Day, or Christian Sab- 
 bath, prevail in all our States. And wherever an act of 
 contracting is within their penalties, the executory contract 
 is void.^ But where the act is not within their penalties, — 
 as, for example, a sale of goods by one whose " ordinary 
 calling ' ' is not the selling of goods , — the contract is valid ; ' 
 that is, the making of a contract on Sunday does not violate 
 the common law,* consequently it must violate the statute 
 to be invalid. 
 
 § 484. Ratiflcatlon of Sunday Contract — Xew Con- 
 tract. — The contract is sometimes spoken of by the courts 
 as susceptible of " ratification " on a subsequent week-day.* 
 But the better form of expression is, that, as it is void and 
 not voidable, there can be no technical ratification of it ; yet 
 
 Sprague, supra ; Jenkins -o. Prink, supra ; SmuU v. Jones, 6 Watts & S. 122 ; 
 McMinn». Phipps, 3 Sneed, Tenn. 196; James v. Fulcrod, supra; Bellows ». 
 Eussell, 20 N. H. 427 ; Kearney v. Taylor, 15 How. U. S. 494 ; Smith v. Green- 
 lee, 2 Dev. 136 ; Switzer «. Skiles, 3 Gilman, 529 ; Goode «. Hawkins, 2 Dev. 
 Eq. 393. 
 
 1 Ante, 2 458 ; Creekmore v. Chitwood, 7 Bush, 317 ; Hubbell v. Flint, 13 
 Gray, 277. And see, for a minute statement, with a large collection of author- 
 ities. Bishop Stat. Crimes, | 1030, 1031. 
 
 » Chestnut 'i!. Harbaugh, 28 Smith, Pa. 473; Pike v. King, 16 Iowa, 49; 
 Sayre v. Wheeler, 31 Iowa, 112 ; Tucker v. West, 29 Ark. 386 ; Clough v. 
 Goggins, 40 Iowa, 325 ; Sayre v. Wheeler, 32 Iowa, 559 ; Hussey v. Roque- 
 more, 27 Ala. 281 ; Hill v. Sherwood, 8 Wis. 343 ; Love v. Wells, 25 Ind. 503 ; 
 Pattee v. Greely, 13 Met. 284 ; Merriam v. Steams, 10 Cush. 257 ; Sellers v. 
 Dugan, 18 Ohio, 489. 
 
 » Drury v. Defontaine, 1 Taunt. 131 ; Merritt v. Barle, 31 Barb. 38 ; Sanders 
 V. Johnson, 29 Ga. 526 ; Kaufman v. Hamm, 30 Misso, 387 ; Allen u. Gardiner, 
 7 K. I. 22 ; Moore v. Murdoch, 26 Cal. 514. 
 
 ' Bloom v. Richards, 2 Ohio State, 387 ; Batsford v. Every, 44 Barb. 618. 
 
 » Tucker v. West, 29 Ark. 386 ; Harrison v. Colton, 31 Iowa, 16 ; Smith v. 
 Case, 2 Oregon, 190 ; Perkins v. Jones, 26 Ind. 499 ; Banks ■». Werts, 13 Ind. 203. 
 
 169 
 
J 487 LAW OF CONTRACTS. 
 
 a new contract, express or implied, may be made on the 
 same subject, as though nothing had been done on Sunday .^ 
 So, if there is a void promise by one on Sunday to pay to 
 another a specific indebtedness, the other may recover on the 
 original consideration.^ 
 
 § 485. Date. — The dating of a contract on a week-day, 
 when it is really executed on Sunday, does not make it 
 good.^ Nor, if entered into on a week-day, is it ill because 
 dated or to be performed on Sunday,* unless something 
 unlawful is then to be done.^ 
 
 § 486. Delivery. — As the delivery of a legal instrument 
 gives it efficacy, it may be good though written and signed 
 on Sunday, if delivered on another day.® 
 
 § 487. Executed, — When a Sunday contract has been 
 executed, — that is, performed, —money paid and goods 
 delivered under it cannot be recovered back.' And money 
 paid on Sunday in discharge of a debt, and retained after- 
 ward, is effectual for the purpose.* 
 
 1 Day V. McAllister, 15 Gray, 433 ; Ladd v. Rogers, 11 Allen, 209 ; Bradley 
 «. Kea, 14 Allen, 20; Tucker v. "West, supra; Meriwether v. Smith, 44 Qt&. 
 
 "541 ; Byno v. Darby, 5 C. B. Green, 231 ; Finn v. Donahue, 35 Conn. 216 ; 
 Pate V. Wright, 30 Ind. 476; Bradley v. Bea, 103 Mass. 188 ; Butler r. Lee, 11 
 Ala. 885 ; Eainey v. Capps, 22 Ala. 288 ; Pope v. Linn, 50 Maine, 83 ; Beeves 
 V. Butcher, 2 Vroom, 224 ; Kountz v. Price, 40 Missis. 341. 
 
 2 Sayre v. Wheeler, 31 Iowa, 112. See Miller v. Lynch, 38 Missis. 344. 
 » Heller v. Crawford, 37 Ind. 279. 
 
 * Stacy V. Kemp, 97 Mass. 166 ; Aldridge v. Decatur Branch Bank, 17 Ala. 45. 
 
 » Smith V. Wilcox, 24 N. Y. 353. 
 
 " Prather v. Harlan, 6 Bush, 185; Dohoney v. Dohoney, 7 Bush, 217; Sher- 
 man V. Boberts, 1 Grant, Pa. 261 ; Goss v. Whitney, 24 Vt. 187 ; Hilton v. 
 Houghton, 35 Maine, 143. See McCalop v. Hereford, 4 La. An. 185 ; Bryant 
 V. Booze, 55 Ga. 438 ; Tuckerman v. Hinkley, 9 Allen, 452 ; Dickinson v. 
 Bichmond, 97 Mass. 45; Stackpole v. Symonds, 3 Post. N. H. 229; Clough ». 
 Davis, 9 N. H. 500. 
 
 ' Chesnut v. Harbaugh, 28 Smith, Pa. 473 ; Finn v. Donahue, 35 Conn. 216 ; 
 Uhler V. Applegate, 2 Casey, Pa. 140; Greene v. Godfrey, 44 Maine, 25; Shu- 
 man V. Shuman, 3 Casey, Pa. 90. But see Tucker v. Mowrey, 12 Mich. 878; 
 Smith V. Bean, 15 N. H. 577 ; Sumner v. Jones, 24 Vt, 317. 
 
 ' Johnson v. Willis, 7 Gray, 164. 
 170 
 
AGAINST LAW, MORALS, POLICY. § 490 
 
 § 488. Violation of Lord's Day as Consideration. — If 
 
 the consideration of an executory contract is something 
 unlawfully done on the Lord's Day, it cannot be enforced.^ 
 
 § 489. Wagers. — A wager has no legitimate connection 
 with any affair of life. It is merely a plan by which one 
 man gains and another loses money or its value, without 
 any real consideration, or any benefit to the individual or 
 the community. On a just view of things, a judge would 
 better serve the state, and more adorn his office, to go round 
 with blacking and brush " shining " the boots of the officers 
 of his court, than to sit on the bench enforcing a wager. ^ 
 Still it is held in England, that, at common law, a wager is 
 recoverable by suit when not illegal, injurious to third per- 
 sons, of a tendency to disturb the peace, or "against 
 morality or sound policy ; " admitting that the " policy " of 
 wagers may sometimes be " soimd." * In our own country, ) 
 some courts have followed this English doctrine, while others \ > 
 have held that no wagers are recoverable.* However the ^ 
 common law may be, by statutes in England and our States 
 nearly or quite all wagers and wagering contracts have be- 
 come unlawful. 
 
 § 490. Gaming — is closely connected with wagers, which 
 commonly form of it a part. As a crime, it rests on old 
 statutes, together with modern ones ; it is not indictable 
 under the earlier common law.* There are statutes against ! 
 it in all our States ; and they more or less modify the invalid L 
 civil contract and the remedy. But, for exact doctrines, 
 
 1 Slade V. Arnold, 14 B. Monr. 287. 
 
 ' And see post, g 611. 
 
 » Good V. Elliott, 3 T. K. 693 ; Da Costa v. Jones, Cowp. 729 ; Ramloll 
 Thackoorseydass v. SoojumnuU DhonmuU, 6 Moore, P. C. 300, 310. 
 
 * Met. Con. 239. And see Wilkinson v. Tousley, 16 Minn. 299 ; Hill v. Kidd, 
 43 Oal. 615; Merchants' Savings, etc., Co. u. Goodrich, 75 HI. 554; Bishop 
 Stat. Crimes, I 85, note, 848, 870, 871, etc. 
 
 ° Bishop Stat. Crimes, § 846, in which work, at the proper places, may be 
 found a full discussion of the subject. 
 
 171 
 
§ 492 LAW OF CONTRACTS. 
 
 the practitioner should consult the statutes and decisions of 
 his own State. 
 
 § 491. Choosing GoTemmental Ofllcers. — Obviously, a 
 contract to promote an election fraud, of the indictable kind, 
 is void as against law. But the rule of public policy extends 
 further, and renders void every contract in any way calcu- 
 lated to obstruct the free and unbiased selection of the best 
 men for positions of public trust : as, where a candidate for 
 office, in consideration of money to help his election, 
 promises that the person furnishing it shall share in the 
 profits of the office ; ^ or, where money is promised a mail 
 contractor on consideration that he will repudiate his con- 
 tract for carrying the mail, even though he has given bonds 
 which will secure the government against loss ; ^ or, where 
 a candidate for office promises to pay for food and liquor 
 furnished to his " friends." ^ 
 
 § 492. Influencing Official Conduct. — ^A contract to pay a 
 person — as, for example, a lawyer — openly to present facts 
 and make appeals to an officer in the regular course of his 
 official business — as, to appear before a court, or at an ap- 
 pointed hearing before a legislative committee — is legitimate 
 and enforceable.* But all private efforts to influence public 
 
 1 Martin v. Wade, 37 Gal. 168. And see, of the like sort, O'Rear v. Kiger, 
 10 Leigh, 622 ; Gray v. Hook, 4 Comst. 449. See also Eddy v. Capron, 4 R. L 
 394 ; Haas v. Penlon, 8 Kan. 601 ; Stroud v. Smith, 4 Houston, 448 ; Ferris 
 e. Adams, 23 Vt. 136. 
 
 •■ "Weld V. Lancaster, 56 Maine, 453. See Gulick v. Ward, 5 Halst. 87. 
 
 ' Duke V. Asbee, 11 Ire. 112. 
 
 * Winpenny u. Trench, 18 Ohio State, 469 ; Price v. Caperton, 1 Duvall, 
 207 ; Wildey v. Collier, 7 Md. 273 ; Sedgwick v. Stanton, 4 Keman, 289 ; 
 Bryan v. Reynolds, 5 Wis. 200. Pardon. — I cannot see that every effort to 
 procure a pardon should be deemed contrary to public policy, rendering a 
 promise to pay for it void; but, favoring such efforts, there are some Georgia 
 cases, which, to their full extent, it is difficult to approve. Formby v. Pryor, 
 15 Ga. 258 ; Meadow v. Bird, 22 Ga. 246 ; Bird v. Meadows, 25 Ga. 251. On 
 the other band, in the Pennsylvania case of Bowman v. Coffroth, 9 Smith, Pa. 
 19, 23, Read, J., said : " The cases cited by the defendant in his paper book, to 
 which may be added Marshall v. Baltimore, etc., Railroad, 16 How. U. S. 814, 
 172 
 
AGAINST LAW, MORALS, TOLICY. § 494 
 
 officers, however honest and fair in themselves, being con- 
 trary to what ought to be the known and established course 
 in every office, — and all attempts, however open, by ad- 
 dressing to the officer other than public considerations, — 
 are detrimental to the public interests ; therefore contracts 
 founded upon them are void. Examples of these are lobby- 
 ing^ and other contracts to employ private influence with a 
 public officer.^ And , — 
 
 § 493. Contracts with the Officer On the like reason, 
 
 a contract between an officer and another person, by which 
 the former undertakes to do anything of official duty, right 
 or wrong, in accord with such duty or contrary to it, is 
 void.* This does not, as we have seen,* prevent a ministerial 
 officer, in proper circumstances, demanding and receiving a 
 bond of indemnity. Nor does it prevent the officer's taking 
 compensation fqr services not within the requirements of his 
 office,^ or the legal compensation for official acts. 
 
 §494. Unlawful Cohabitation. — All illicit commerce 
 
 establish, that a contract to procure a pardon from the governor, of a convict, 
 would now be held illegal, whether improper means were used or not. So, to 
 procure the passage of a private statute, or to procure an appointment to office 
 by private influence, or to purchase the right of administration, are all held to 
 be illegal and void." And see Kribben v. Haj'craft, 26 Misso. 396 ; Hatzfield 
 V. Gulden, 7 Watts, 152 ; Chadwick v. Knox, 11 Post. N. H. 226. 
 
 1 Mills V. Mills, 40 N. Y. 543 ; Trist v. Child, 21 Wal. 441 ; Frost v. Bel- 
 mont, 6 Allen, 152 ; Marshall v. Baltimore, etc.. Railroad, 16 How. U. S. 314 ; 
 Gil V. Williams, 12 La. An. 219 ; Clippinger v. Hepbaugh, 5 Watts & S. 315; 
 Powers V. Skinner, 34 Vt. 274 ; Usher v. McBratney, 3 Dillon, 385. 
 
 2 Maguire v. Smock, 1 Wils. Ind. 92 ; Hutchenv. Gibson, 1 Bush, 270; Cook 
 V. Shipman, 51 111. 816. And see Devlin v. Brady, 36 N. Y. 531 ; Dudley 
 V. Butler, 10 N. H. 281 ; Smith v. Appelgate, 3 Zab. 352 ; Winpenny v. 
 French, 18 Ohio State, 469. 
 
 ' Satterlee v. Jones, 3 Duer, 102 ; Odineal v. Barry, 24 Missis. 9 ; Callagan 
 V. Hallett, 1 Caines, 104 ; Randolph v. Jones, Breese, 103 ; Richardson v. Cran- 
 •dall, 48 N. Y. 348 ; Newsom v. Thighen, 30 Missis. 414. 
 
 * Ante, ? 467. 
 
 ^ See 2 Bishop Crim. Law, ^ 395 ; Converse v. United States, 21 How. U. S. 
 463, 469 ; Morrell v. Quarles, 35 Ala., 644 ; Evans v. Trenton, 4 Zab. 764; Bona 
 o. Davant, Rilev Eq. 44; Massing v. The State, 14 Wis. 502. 
 
 173 
 
§ 495 LAW OF CONTRACTS. 
 
 between the sexes being immoral, a promise to pay for it, 
 made before it takes place, is void even where the act is not 
 indictable,^ and even though the promise is the virtuous one 
 
 ) of marriage.^ Nor does a seal help the promise ; because, 
 though it implies a consideration, the true consideration 
 
 ] vitiates what else would be adequate.^ After the intercourse 
 has been had, a promise to pay for it is void, not because it 
 is immoral to repair a wrong, but because the consideration 
 is past;* and, in a case like this, the law cannot imply a 
 prior request.^ But a sealed undertaking in* reparation of 
 the wrong will be good ; for this is not immoral.* And, — 
 § 495. Beparation. — In various circumstances, after a 
 cohabitation has taken place, some collateral matter may be 
 brought in for a consideration, to enable one to make a valid 
 promise not under seal, the leading motive to which is 
 reparation for the wrong.^ If the case is within the bas- 
 tardy acts, a forbearance to prosecute under them will 
 be a good consideration.* And a promise to a husband, in 
 
 ' Walker v. Gregory, 36 Ala. 180 ; "Winebrinner v. "Welaigir, 3 T. B. Monr. 
 35; Sherman v. Barrett, 1 McMullen, 147 ; Singleton v. Bremar, Harper, 201; 
 Trovinger v. McBurney, 5 Cow. 253. 
 
 " Baldy v. Stratton, 11 Barr, 316 ; Goodall v. Thurman, 1 Head, 209. 
 
 = Ante, g 23, 65 ; Walker v. Perkins, 3 Bur. 1568 ; Friend v. Harrison, 2 Car. 
 & P. 584. 
 . * Beaumont v. Beeve, 8 Q. B. 483. 
 
 6 Ante, J 443-445. 
 
 « Gray v. Mathias, 5 Ves. 286 ; Met. Con. 222. See Cusack v. White, 2 
 Mill, 279 ; Shenk v. Mingle, 13 S. & K. 29. And, for the law on several of the 
 propositions in the text, Ayerst v. Jenkins, Law Rep. 16 Eq. 275. 
 
 ' Self V. Clark, 2 Jones Eq. 309 ; Flanegan v. Garrison, 28 Ga. 136 ; Trov- 
 inger V. McBurney, 5 Cow. 253. 
 
 8 Ante, J 474; Burgen v. Straughan, 7 J. J. Mar. 583 ; Hays v. McEarlan, 32 
 Ga. 699 ; Weaver v. Waterman, 18 La. An. 241 ; Howe ». Litchfield, 3 Allen, 
 443; Eioe v. Maxwell, 13 Sm. & M. 289; Stephens v. Spiers, 25 Misso. 386; 
 Sharp !>. Teese, 4 Halst. 352 ; Maxwell v. Campbell, 8 Ohio State, 265; Knight 
 V. Priest, 2 Vt. 507 ; Payne v. Eden, 3 Caines, 313 ; Robinson v. Crenshaw, 2 
 Stew. & P. 276 ; Ashburne v. Gibson, 9 Port. 549 ; Coleman v. Prum, 3 Scam. 
 378 ; Abshire v. Mather, 27 Ind. 381 ; Thompson v. Nelson, 28 Ind. 431 ; Clarke 
 V. McParland, 6 Dana, 45. 
 174 
 
AGAINST LAW, MORALS, POLICY. § 497 
 
 settlement of a claim for the seduction of his wife, will be 
 valid .^ 
 
 § 496. Prostitution — Bawdy-house. — Any contract en- 
 couraging prostitution, or auxiliary to the keeping of a 
 bawdy-house, ^ or, in the language of Pollock, C. B., 
 " supplying a thing with the knowledge that it is going to 
 be used for that purpose," — is void.^ This includes the 
 letting of a house for bawdry,' letting a carriage to a pros- 
 titute as a part of her equipage to entice men,* and in some 
 circumstances furnishing her with board ^ and clothing.* 
 But, in the application of the doctrine, there are some nice 
 distinctions ; and not on all of them are the courts quite 
 agreed.^ 
 
 § 497. The Doctrine of this Chapter restated. 
 
 The law, like all other sciences and arts, has, for con- 
 venience, for adaptation to our infirmities, and to some 
 extent from necessity, technical rules, and something be- 
 yond, which may be termed a technical policy. It cannot, 
 therefore, enforce a contract violating any of these ; in 
 other words, the contract is void. A fortiori, therefore, it 
 cannot recognize any validity in an agreement to do what 
 the legal rule directly forbids, or an agreement the act of 
 making which was a violation of the law. All promises, 
 
 1 See McGrowen v. Bush, 17 Texas, 195. 
 
 ' Pearce v. Brooks, Law Kep. 1 Ex. 213, 217 ; Smith v. White, Law Kep. 1 
 Eq. 626. 
 
 ' Crisp V. Churchill, cited 1 B. & P. 340 ; Jennings a. Throgmorton, Kyan 
 & Moody N. P. 251. See 1 Bishop Crim. Law, J 1090-1096. 
 
 * Pearce a. Brooks, supra ; Girardy v. Richardson, 1 Bsp. 13. 
 
 * Mackbee v. Griffith, 2 Cranch C. C. 836. Compare with Lloyd v. Johnson, 
 1 B. & P. 340 ; 2 Chit. Con. 11th Am. ed. 981. 
 
 ^ Bowry v. Bennet, 1 Camp. 348. 
 
 ' Compare with the foregoing cases Armfleld v. Tate, 7 be. 258 ; Hanauer 
 V. Doane, 12 Wal. 342 ; McGavock v. Puryear, 6 Coldw. 34 ; Michael v. Bacon, 
 49 Misso. 474 ; Taylor v. Chester, Law Kep. 4 Q. B. 309. 
 
 175 
 
§ 497 LAW OF CONTKACTS. 
 
 therefore, to overturn — or promises in evasion of — what 
 the law has established, or what it aims to promote; all 
 promises interfering with the workings of the machinery of 
 the government in any of its departments, or obstructing or 
 corrupting its officers in their official acts ; all, made to 
 promote what the law holds to be wrong ; all, contrary to 
 any rules which it has prescribed, — are void. If a court 
 should enforce them, it would employ its functions in un- 
 doing what it was established to do. The act would be in 
 the nature of suicide. 
 176 
 
VOIDABLE UNLESS WRITTEN. § 498 
 
 CHAPTEE XXVI. 
 
 CONTRACTS VOIDABLE UNDER THE STATUTE OF FRAUDS 
 UNLESS EVIDENCED BT WRITING. 
 
 g 4S8-501. Statute of Frauds and Introduction. 
 
 502-513. Rules Common to this Class. 
 
 514^16. Promise by Executors and Administrators. 
 
 517-524. Contract of Guaranty. 
 
 525-529. On Consideration of Marriage. 
 
 530-535. Por the Sale of Lauds. 
 
 536-545. Not to be performed within a Year. 
 
 546. Doctrine of the Chapter restated. 
 
 § 498. In General, of the Statute of Frauds Just 
 
 one hundred years prior to the Declaration of our National 
 Independence, the parliament of the mother country gave 
 being to the most important statute ever enacted in either 
 country, relating to civil affiiirs. It is 29 Car. 2, c. 3, a. d. 
 1676, entitled " An Act for Prevention of Frauds and Per- 
 juries." With only slight amendments, and after a lapse 
 of two hundred years, during which its influence has been 
 constantly present in every avenue of business, it is stiU in 
 force in England. It came subsequently to the settlement 
 of the earlier American colonies, but it was accepted as law 
 in Maryland^ and probably in some of the others.* And, 
 in all our States, with perhaps one or two exceptions, 
 statutes have been enacted on the pattern of this one, yet 
 with enough of slight differences from it and from one 
 
 1 Glayland v. Pearce, 1 Har. & McH. 29 ; Kilty Rap. Stats. 240. 
 » Bishop First Book, g 54, 56, 58. 
 
 177 
 
§ 501 LAW OF CONTRACTS. 
 
 another to admonish every practitioner to consult and be 
 guided by the statute-books of his own State.^ This statute, 
 whether spoken of as it exists in England or in any one of 
 our States, is, in short phrase, termed the " Statute of 
 Frauds." 
 
 § 499". Changes effected. — In its original English form, 
 it is in twenty-five sections, extending to some things besides 
 contract. We have seen," that, by the prior common law, 
 any ordinary agreement between parties might be made by 
 oral words with the same effect as by written ones. This 
 statute works a change as to some objects of contract, not 
 as to all. It provides four or more different classes of rules, 
 each to govern things particularized as within its class ; and 
 all requiring, to some extent, writing where oral words were 
 before adequate. The class of rules and objects to be con- 
 sidered in this chapter depend on the — 
 
 § 500. Fourth Section — as follows : — 
 
 " No action shall be brought whereby to charge any executor or administra- 
 tor, upon any special promise, to answer damages out of his own estate; or 
 whereby to charge the defendant upon any special promise to answer for the 
 debt, default, or miscarriages of another person; or to charge any person upon 
 any agreement made upon consideration of marriage ; or upon any contract or 
 sale of lands, tenements, or hereditaments, or any interest in or concerning 
 them ; or upon any agreement that is not to be performed within the space of 
 one year from the making thereof: unless the agreement upon which such 
 action shall be brought, or some memorandum or note thereof, shall be in 
 writing, and signed by the party to be charged therewith, or some other person 
 thereunto by him lawfully authorized." 
 
 § 501. How the Chapter divided. — It is perceived that 
 here are five different objects of contract, governed by the 
 
 1 Bowman v. Conn, 8 Ind. 58; Violett u. Patton, 5 Cranoh, 142; Sorrell v. 
 Jackson, 30 Ga. 901 ; D' Wolf v. Rabaud, 1 Pet. 475 ; Westheimer o. Peacock, 
 2 Iowa, 528; Dunn v. Tharp, 4 Ire. Eq. 7; Thornton ». Corbin, 3 Call, 384; 
 Ball V. Ball, 2 Bibb, 65 ; Badon u. Bahan, 4 La. An. 467 ; Riddle ». Ratliff, 8 
 La. An. 106 ; Allen v. Moss, 27 Misso. 854; Gibson v. Chouteau, 39 Misso. 536; 
 Monroe v. Searcey, 20 Texas, 348. 
 
 ' Ante, I 49. 
 178 
 
VOIDABLE UNLESS WRITTEN. § 503 
 
 same rules. We shall, therefore, consider, I. The Eules 
 common to this Class ; II. The Promise by Executors and 
 Administrators ; III. The Contract of Guaranty ; IV. The 
 Agreement on Consideration of Marriage ; V. The Contract 
 for the Sale of Lands ; VI. Agreements not to be Performed 
 within a Year. 
 
 I. The Rules common to this Class. 
 
 § 502. Executed. — If the reader will carefully note the 
 terms of this statutory provision, he will see that they can 
 have no application to contracts which are fully executed on 
 both sides. All such, therefore, even though they were 
 once executory, and thus within the statute, stand precisely 
 as if the statute did not exist.^ 
 
 § 503. Executed on one Side. — There is a distinction 
 between the consideration for an agreement and the agree- 
 ment itself. ConsequenJ;ly if one has voluntarily done the 
 thing which, being within the statute, he could not have 
 been compelled to do, he may enforce payment for it — that 
 is, recover the consideration orally agreed — from the 
 other.* But if it is the consideration which has been thus ) 
 voluntarily paid or performed, whether partly or even fully, 
 this will not enable the person paying or performing to 
 maintain a suit against the other who refuses performance ; -i 
 because the statute expressly declares that no such action; 
 shall be maintained.* If the latter, who promised orally,? 
 
 1 Stone V. Dennison, 13 Pick. 1 ; Bolton v. Tomlin, 5 A. & E. 856 ; Swanzey 
 V. Moore, 22 111. 63 ; Nutting v. McCutcheon, 5 Minn. 382 ; Slatter v. Meek, 
 35 Ala. 528 ; McCue v. Smith, 9 Minn. 252 ; "Westfall v. Parsons, 16 Barb. 645 ; 
 Shaw V. Woodcock, 7 B. & C. 73. See Sanderson v. Graves, Law Eep. 10 Ex. 
 234, 238, 241. 
 
 « Sims V. McEwen, 27 Ala. 184; McGlucky v. Bitter, 1 E. D. Smith, 618; 
 Bay i>. Young, 13 Texas, 550; Zabel v. Schroeder, 35 Texas, 308 ; Philbrook v. 
 Belknap, 6 Vt. 889 ; Knowlman v. Bluett, Law Rep. 9 Ex. 1. See post, § 535, 
 545. 
 
 ' Kidder v. Hunt, 1 Pick. 828 ; Pierce v. Paine, 28 Vt. 34; Wood v. Jones, 
 
 179 
 
§ 505 LAW OF CONTKACTS. 
 
 has performed in part, even as to almost the whole, he may 
 there stop, and rely on the statute as to the residue.^ 
 
 § 504. Remedies after Part Performance. — When a 
 part or all of the consideration has been paid, either in 
 money or anything else, and the other party relying on the 
 statute refuses performance, the money, or the value of the 
 other thing, may be recovered back from him in a suit at 
 law ;^ but not, if he stands ready to perform.' There are 
 cases of hardship, less simple in their facts, to which this 
 sort of remedy is not adapted, and for some of them our 
 forms of judicial procedure furnish no remedy ; but, — 
 
 § 505. In Equity. — Before this Statute of Frauds was 
 adopted, courts of equity, with forms more flexible than 
 those of the common law, had a jurisdiction, which they 
 still retain, to establish justice between parties one of whom 
 has been defrauded by the other. And it is a palpable 
 fraud for one man to entice another with promises to change 
 his course of action and part with his eflPects or his serv- 
 ices, and then fall back on the statute to avoid performing 
 what he had led the other to expect. Therefore, in cases 
 within this principle, and not remediable at the common 
 law, equity will compel performance, or compel some other 
 proper adjustment. On this, as on other questions, the courts 
 of the present day follow the precedents, and the line of 
 precedent is not at every point exactly what it should be ; 
 though, as a whole, it has been wisely drawn.* This is not, 
 
 35 Texas, 64; Plenner v. Plenner, 29 Ind. 564 ; Davis v. Moore, 9 Kich. 215 ; 
 Osborn v. Phelps, 19 Conn. 63 ; Hawley v. Moody, 24 Vt. 608. 
 
 1 Baldwin v. Palmer, 6 Selden, 232. 
 
 ' Hawley v. Moody, 24 Vt. 603 ; Marquat v. Marquat, 7 How. Pr. 417 ; Bald- 
 win V. Palmer, 6 Selden, 232, 235 ; Montague i>. Garnett, 3 Bush, 297. 
 
 ' Coughlin V. Knowles, 7 Met. 57 (which compare with King v. "Welcome, 5 
 Gray, 41, 44) ; Swanzey ». Moore, 22 HI. 63 ; Plummer v. Bucknan, 55 Maine, 
 105. 
 
 * The fraud for which relief is given need not be actual fraud, but it is often 
 constructive, — not fraud in fact, but in equitable law. And it has thus become 
 a sort of leading doctrine, that, if the oral contract has been partly or fully 
 180, 
 
VOIDABLE UNLESS WRITTEN. § 506 
 
 as the non-professional reader might deem, a violation of 
 the statute ; for every statute, even a written constitution, 
 is, and ought to be, interpreted as subject to qualifications 
 and exceptions derivable from principles outside itself, else 
 no written law could be safely made, and unintended injus- 
 tice could not be avoided.^ 
 
 § 506. Not void — "No Action," etc. — Though, in the 
 books, the mere verbal contract is sometimes spoken of as 
 void ,^ it is not so in fact . "No action ' ' shall be maintained to 
 " charge ' ' one upon it, but for all other purposes it is good.' 
 
 performed by him from whom the consideration proceeds, equity will compel 
 its performance on the other side. But the exceptions are numerous; or, 
 properly, an equity judge often declines to call that a part or full performance 
 which every uneducated person would. Consult, as to this and the text, the 
 books on equity jurisdiction; also, Browne Stat. Frauds, J 437-502; Nunn v. 
 Fabian, Law Eep. 1 Ch. Ap. 35; Coles v. Pilkington, Law Kep. 19 Bq. 174; 
 Caton V. Caton, Law Eep. 2 H. L. 127, 136, /I Ch. Ap. 137 ; Jervis v. Berridge, 
 Law Eep. 8 Ch. Ap. 351 ; Burnett v. Blackmar, 43 Ga. 569 ; Freeman v. 
 Cooper, 14 G-a. 238 ; Gupton v. Gupton, 47 Misso. 37 ; Annan v. Merritt, 13 
 Conn. 478 ; Pugh v. Good, 3 "Watts & S. 56 ; Watkins v. Watkins, 24 Ga. 402 ; 
 Watson V. Mahan, 20 Ind. 223 ; Cole v. Potts, 2 Stock. 67 ; Malins v. Brown, 
 4 Comst. 403; Eyan i>. Dox, 84 N. Y. 307; Coyle v. Davis, 20 Wis. 564; 
 Blanchard v. McDougal, 6 Wis. 167; Parke v. Leewright, 20 Misso. 85; 
 Brashier v. Gratz, 6 Wheat. 528 ; Brewer v. Brewer, 19 Ala. 481 ; Weber ». 
 Marshall, 19 Cal. 447 ; Farrar v. Patton, 20 Misso. 81 ; Dickerson v. Chrisman, 
 28 Misso. 134 ; Ham v. Goodrich, 33 N. H. 82 ; Pinckard o. Pinckard, 23 Ala. 
 649 ; Davis v. Moore, 9 Eich. 215 ; Meach v. Stone, 1 D. Chip. 182 ; Osbom v. 
 Phelps, 19 Conn. 63 ; Harder v. Harder, 2 Sandf. Ch. 17 ; Ehodes v. Ehodes, 3 
 Sandf. Ch. 279 ; Brizick v. Manners, 9 Mod. 284, 285 ; Taylor v. Luther, 2 
 Sumner, 228 ; Brandies v. Neustadtl, 13 Wis. 142 ; Fox v. Longly, 1 A. K. 
 Mar. 388. 
 
 1 Bishop Stat. Crimes, J 74, 82, 86, 88-90, 92, 102, 103, 123, 131. 
 
 2 See ante, g 157. 
 
 ' Leroux v. Brown, 12 C. B. 801 ; Fowler v. Burget, 16 Ind. 341 ; Crane v. 
 Gough, 4 Md. 816 ; Sims v. Hutohins, 8 Sm. & M. 328 ; Minns v. Morse, 15 
 Ohio, 568 ; Potts v. Merrit, 14 B. Monr. 406 ; Philbrook v. Belknap, 6 Vt. 383 ; 
 Swanzey v. Moore, 22 111. 63 ; Gray v. Gray, 2 J. J. Mar. 21 ; Harrow v. John- 
 son, 3 Met. Ky. 578 ; McCampbell o. McCanqpbell, 5 Litt. 92 ; Comellison v. 
 Cornellison, 1 Bush, 149 ; Lucas v. Mitchell, 8 A. K. Mar. 244. And see 1 
 Bishop Mar. Women, J 807, 810, 811. 
 
 181 
 
§ 511 LAW OF CONTEACTS. 
 
 The party may perform it if he will ; ^ or, being sued, he 
 may rely on the statute or not at his pleasure. He cannot 
 be compelled.* Privies succeed to his right, yet the defence 
 of the statute cannot be made by a stranger.^ But — 
 
 § 507. Actions otlier than on Contract. — The party 
 may plead the statute in bar of a collateral action, based on 
 the contract, as well as of a direct action on the contract 
 itself.* Again, — 
 
 § 508. Rescission. — A contract which the statute re- 
 quires to be written may be rescinded orally.^ 
 
 § 509. The ^^ Memorandum or Note" of the Agree- 
 ment : — 
 
 Dlstinguislied. from "Agreement" — Informal. — The 
 statute distinguishes between the "agreement" and "some 
 memorandum or note thereof," and declares the latter to 
 be sufficient.* It may, therefore, be merely informal.'' 
 Hence — 
 
 § 510. Subsequent Recognition. — A subsequent recog- 
 nition, in writing, of a verbal agreement, will be adequate.* 
 But it must be before the suit is brought.' 
 
 § 511. Signed. — It must be " signed by the party to be 
 charged therewith, or some other person thereunto by him 
 lawfully authorized." ^^ To be merely in the handwriting of 
 
 1 Aicardi v. Craig, 42 Ala. 311 ; Godden v. Pierson, 42 Ala. 370; "Wliitney 
 V. Cochran, 1 Scam. 209, 210. 
 
 » Jacob V. Smith, 5 J. J. Mar. 380; Cahill ». Bigelow, 18 Pick. 369 ; Kirksey 
 V. Kirksey, 30 Ga. 156. 
 
 ' Chicago Dock Co. v. Kinzie, 49 111. 289, 293 ; Bohannon u. Pace, 6 Dana, 194. 
 
 ' Davis V. Moore, 9 Eich. 215 ; Banks u. Crossland, Law Kep. 10 Q. B. 97, 
 100. 
 
 ^ Arrington v. Porter, 47 Ala. 714 ; Guthrie v. Thompson, 1 Oregon, 353. 
 
 » Ante, § 500. 
 
 ' Hurley ». Brown, 98 Mass. 545, 546. 
 
 » Gale i>. Nixon, 6 Cow. 445. See Adams v. McMillan, 7 Port 73. 
 
 " Bill V. Bament, 9 M. & W. 36 ; Webster ». Zielly, 52 Barb. 482. 
 
 i" Ante, I 500 ; Washington Ice Co. v. Webster, 62 Maine, 841 ; Barry v. 
 185i 
 
VOIDABLE UNLESS WEITTEN. § 513 
 
 such party is not sufficient.^ But, if signed by him, the 
 signature of the other party is unimportant.^ 
 
 § 512. Consideration. — To be binding, this contract, 
 like any other, must proceed on a consideration.^ But, in 
 principle, if at common law a written contract need not 
 express the consideration, which may be proved by oral 
 evidence as already explained,* the result seems to follow, 
 that the written memorandum under this statute need not 
 mention it. The English courts, however, reasoning from 
 the word " agreement," in this section of the statute, 
 require the consideration to be expressed, or to be infera- 
 ble from what is expressed ; ^ but, under the section relating 
 to the contract for the sale of goods, which does not employ 
 the same word, they hold that the memorandum need not 
 state the considei'ation.^ A part of our American tribunals 
 hold to the English interpretation, while others do not 
 require the consideration to be expressed in any case ; ' and 
 the statutes of our States differ. Therefore, for further 
 explanations, the reader should consult the authorities in 
 his own State. Finally, — 
 
 § 513. Substantial Requisites. — The memorandum, 
 
 Law, 1 Cranch 0. 0. 77 ; Sanborn v. Sanborn, 7 Gray, 142. As to what is a 
 signing, see ante, ? 95, 96. As to the authorization of the agent, see ante, g 
 219, 223, 224. 
 ' Champlin v. Parish, 11 Paige, 405. 
 
 2 Keuss V. Picksley, Law Eep. 1 Ex. 342 ; Shirley v. Shirley, 7 Blackf. 452; 
 Douglass V. Spears, 2 Nott & MoC. 207; Morin v. Martz, 13 Minn. 191; Mc- 
 Crea v. Purmort, 16 "Wend. 460 ; Davis v. Shields, 26 Wend. 341 ; "Waul v. 
 Kirkman, 27 Missis. 823 ; Justice v. Lang, 42 N. Y. 493. 
 
 3 Tenney v. Prince, 4 Pick. 385, 387 ; post, § 524. 
 * Ante, g 65. 
 
 5 "Wain V. "Warlters, 5 Bast, 10 ; Smith Con. 2d Bng. ed. 41. 
 
 6 Egerton v. Mathews, 6 Bast, 307 ; Pollock Con. 141. 
 
 ' Steadman v. Guthrie, 4 Met. Ky. 147 ; Shively v. Black, 9 "Wright, Pa. 
 345 J Britton v. Angier, 48 N. H. 420 ; Bean v. Valle, 2 Misso. 126 ; Sorrell v. 
 Jackson, 30 Ga. 901; Cummings v. Dennett, 26 Maine, 397; Lent v. Padel- 
 ford, 10 Mass. 230 ; Sears u. Brink, 3 Johns. 210; Thompson . u. Blanchard, 3 
 Comst. 335 ; Violett v. Patton, 5 Cranch, 142. 
 
 183 
 
 -I 
 
§ 516 LAW OF CONTRACTS. 
 
 which may be on one piece of paper, or on moi-e pieces than 
 one, attached, or the one referring to the other, must, 
 while it may be informal, still contain in substance the com- 
 plete agreement in terms sufficiently plain to be understood.^ 
 
 II. The Promise hy Executors and Administrators. 
 
 § 514. Consideration. — If an executor or adminis- 
 trator should, in writing, promise to pay personally a debt 
 of the deceased, this promise, though it fulfilled the terms 
 ^ of the statute, would not bind him unless made on some 
 fresh consideration.^ And, — 
 
 § 515. Form of the Promise. — To bind him personally, 
 the form of the undertaking must show this intent ; a mere 
 written promise as executor not being adequate. But he 
 may be thus bound though he adds the word " executor" 
 or "administrator" to his signature.^ 
 
 § 516. Original Obligation. — Executors and adminis- 
 trators, in the discharge of their duties, enter into various 
 original obligations, as well as incur responsibilities for 
 torts, which are personal in their inception ; binding them, 
 and not the estate, though sometimes they may charge over 
 to the estate what they thus pay out. With these, the 
 
 1 Whelan v. Sullivan, 102 Mass. 204 ; McG-uire v. Stevens, 42 Missis. 724 ; 
 EileyB. Famsworth, 116 Mass. 223 ; Lee v. Mahoney, 9 Iowa, 344; McConnell 
 V. Brillhart, 17 HI. 354 ; O'Donnell u. Leeman, 43 Maine, 158 ; Rhoades v. 
 Castner, 12 Allen, 130 ; Bailey o. Ogden, 3 Johns. 399 ; Abeel v. EadcliflF, 13 
 Johns. 297 ; Dodge v. Lean, 13 Johns. 508 ; Parkhurst v. Van Cortlandt, 1 
 Johns. Ch. 274 ; Patterson v. Underwood, 29 Ind. 607 ; Boardman b. Spooner, 
 13 Allen, 353 ; Hazard «. Day, 14 Allen, 487 ; "Wright v. "Weeks, 25 N. Y. 153 ; 
 Murdook v. Anderson, 4 Jones, Bq. 77 ; Ellis ». Deadman, 4 Bibb, 466; Horsey 
 V. Graham, Law Rep. 5 C. P. 9 ; Sale v. Lambert, Law Rep. 18 Eq. 1 ; Potter 
 V. Duffield, Law Rep. 18 Eq. 4 ; Gommins v. Scott, Law Rep. 20 Eq. 11. 
 
 " 1 Chit. Con. 11th Am. ed. 372. 
 
 ' Treadwell v. Herndon, 41 Missis. 38 ; "Winter v. Hite, 3 Iowa, 142 ; Lock- 
 wood V. Q-ilson, 12 Ohio State, 526 ; Stoudenmeier v. "Williamson, 29 Ala. 558 ; 
 Sieokman v. Allen, 3 E. P. Smith, 561. • 
 184 
 
VOIDABLE UNLESS WRITTEN. § 519 
 
 statute has nothing to do.^ But any mere verbal promise 
 to pay a debt of the deceased is within the statute, and it 
 will not bind the administrator personally.^ 
 
 V 
 
 III. The Contract of Guaranty. 
 
 § 517. Statutory Terms. — Within the statute is "any 
 special promise to answer for the debt, default, or miscar- 
 riage of another."^ 
 
 § 518. Three Parties required. — The statute, there- 
 fore, contemplates three parties, and it is applicable only 
 where there are three ; namely, a creditor, his debtor, and 
 a person who guarantees to the former the latter' s debt. 
 And simply to this contract of guaranty do the statutory 
 terms apply. Thus, — 
 
 § 519. Principal to be holden. — The leading doctrine 
 is, that, to render it necessary for the promise to be in 
 writing, the principal must be and remain holden ; that is, 
 the debt must be due, not from the promisor, but from 
 "another," to whom the promisor sustains the relation of 
 surety;* as, — 
 
 ' Beaty v. Gingles, 8 Jones, N. 0. 302 ; Williams v. Davis 18 "Wis. 115 ; Tay- 
 lor V. Mygatt, 26 Conn. 184 ; Farrelly v. Ladd, 10 Allen, 127 ; Luscomb v. Bal- 
 lard, 5 Grray, 403 ; Devane v. Boyal, 7 Jones, N. 0. 426 ; Bowman v. Tall- 
 man, 2 Rob. N. T. 385 ; McGloin v. Vanderlip, 27 Texas, 366 ; Hackleman v. 
 Miller, 4 Blackf. 322 ; Stebbins v. Smith, 4 Pick. 97. 
 
 * Smithwick o. Shepherd, 4 Jones, N. C. 196. 
 
 » Ante, I 500. 
 
 ' Mallet V. Bateman, Law Kep. 1 C. P. 163 ; Lakeman v. Mountatephen, 
 Law Kep. 7 H. L. 17, 24, 7 Q. B. 196, 5 Q. B. 613 (at the place first cited, Lord 
 Selborne observing: "There can be no suretyship unless there be a princi- 
 pal debtor, . . . nor can a man guarantee anybody's else debt unless 
 there is a debt of some other person to be guaranteed ") ; Eddy v. Koberts, 17 
 HI. 505 ; Wainwright v. Straw, 15 Vt. 215 ; Mease v. Wagner, 1 McCord, 395 ; 
 Bronson v. Stroud, 2 McMuUen, 372 ; Hill v. Doughty, 11 Ire. 195; Connerat«. 
 Goldsmith, 6 Ga. 14; Billingsley v. Dempewolf, 11 Ind. 41^; Aldrioh v. 
 Jewell, 12 Vt. 125 ; Olive v. Lewis, 45 Missis. 203 ; Townsley v. Sumrall, 2 
 Pet. 170, 181 ; Floyd v. Harrison, 4 Bibb, 76 ; Wakefield v. Greenhood, 29 Cal. 
 597 ; Eichardson v. Williams, 49 Maine, 558 ; Parker v. Barker, 2 Met. 423 ; 
 Smith u. Montgomery, 3 Texas, 199. 
 
 185 
 
§ 522 LAW or CONTEACTS. 
 
 § 520. Goods bought. — If A has goods which B wishes 
 to buy, and X promises to pay for them, or to pay unless 
 B does, then, in either case, if A delivers the goods and 
 charges them deliberately to B, whom he intends to hold, 
 while he also holds X as surety, or thus deliberately charges 
 them to the two jointly, still X is not liable unless his 
 promise is in writing.^ But if the promise of X is in such 
 form that the charge maybe made directly to him, and it is 
 so made, and no claim is retained against B, then X maybe 
 compelled to pay though there is no writing.'* Again, — 
 
 § 521. Existing Debt. — If a debtor, creditor, and third 
 person agree together, that the debtor shall be discharged 
 and the creditor look to the third person for his pay, this 
 arrangement is valid though not in writing ; because the 
 debt, in being cast upon the third person, is taken off from 
 the '• other." And the release of such other furnishes a 
 consideration for the new promise.^ But if the old debt is 
 not lifted, the new promise must be in writing, and a fresh 
 consideration must be'-added.* 
 
 § 522. Promise must be to Creditor, not to Debtor. — 
 In the foregoing illustrations, the promise was to the Creditor. 
 And no case in which it is not to him, or to some person 
 representing him, is within the statute. If, therefore, one, 
 on an adequate consideration, promises a debtor to pay 
 
 1 Matthews v. Milton, 4 Terg. 576 ; Matson v. "Wharam, 2 T. K. 80; Ander- 
 son V. Hayman, 1 H. Bl. 120 ; Jonea -u. Cooper, Cowp. 227 ; Hill v. Baymond, 
 3 Allen, 540; Swift v. Pierce, 13 Allen, 136. 
 
 2 Wallace v. 'Wortham, 25 Missis. 119; Graham v. O'Niel, 2 Hall, 474; 
 Cahill V. Bigelow, 18 Pick. 369. 
 
 ' Meriden Britannia Co. v. Zingsen, 48 N. T. 247 ; Barringer v. Warden, 12 
 Cal. 311; Corbett v. Cochran, 3 Hill, S. C. 41; Day*. Cloe, 4 Bush, 563; 
 Woods. Corcoran, 1 Allen, 405; Warren v. Smith, 24 Texas, 484; Gleasonv. 
 Briggs, 28 Vt. 135 ; Watson «. Jacobs, 29 Vt. 169 ; Mead v. Keyes, 4 B. D. 
 Smith, 510; Bill v. Barker, 16 Gray, 62. 
 
 * Beall V. Eidgeway, 18 Ala. 117 ; Comstock v. Breed, 12 Cal. 286 ; Cutler v. 
 Everett, 33 Maine, 201 ; Aldridge v. Turner, 1 Gill & J. 427 ; Chaffee v. Thomas, 
 7 Cow. 358 ; Parker v. Carter, 4 Munf. 273 ; Stone v. Symmes, 18 Pick. 467 ; 
 Brown v. Hazen, 11 Mich. 219 ; Noves v. Humphreys, 11 Grat. 636. 
 186 
 
VOIDABLE UNLESS WRITTEN. § 524 
 
 what the latter owes generally, or what he owes a particular 
 person, this is valid though not in writing. The debt is not 
 *' another's," but the very person's to whom the promise is 
 made.^ An application of this doctrine occurs where there 
 is a — - - ""~"*\^ 
 
 § 523. Promp<fof Indemnity. — If a man promises one 
 to see him harmless should he become surety for a third 
 person, or shodld he do anjiihing else, this is a mere 
 arrangement between promisor and promisee. The promise { 
 is to pay what ihe person to whom it is made may become) 
 liable for, ■ — not " another's " debt, but his. Therefore it 
 is not within the statute of frauds, and is valid though oral.^ 
 
 § 524. Consideration. — Though a contract of guaranty 
 is in writing, it must still, like any other, be founded on a 
 consideration, or it will be invalid.^ Therefore a mere 
 
 1 Eastwood V. Kenyon, 11 A. & E. 438; Hawes v. Wooloook, 26 Wis. 627; 
 firitton V. Aiigier, 48 N. H. 420; Brown v. Brown, 47 Misso. 130; Barker v. 
 Bradley, 42 N. Y. 316 ; Brown v. Strait, 19 111. 88 ; Presbyterian Society v. 
 Staples, 23 Conn. 544 ; Colt v. Root, 17 Mass. 229 ; Tibbetts v. Planders, 18 
 N. H. 284; Harwood v. Jones, 10 Gill & J. 404; Alger v. Seoville, 1 Gray, 
 391; Maxwell v. Haynes, 41 Maine, 559; Decker v. Schaffer, 3 Ind. 187; 
 Howard v. Coshow, 33 Misso. 118 ; Kutzmeyer ». Ennis, 3 Dutcher, 371 ; Jen- 
 nings V. "Webster, 7 Cow. 256 ; Barker v. Bucklin, 2 Denio, 45. 
 
 2 Aldrich v. Ames, 9 Gray, 76 ; Wildes v. Dudlow, Law Kep. 19 Bq. 198 ; 
 Dunn ». West, 5 B. Mour. 376 ; Mills v. Brown, 1 1 Iowa, 314 ; Jones v. Shorter, 
 1 Kelly, 294; Lucas v. Chamberlain, 8 B. Monr. 276; Perley v. Spring, 12 
 Mass. 297 ; Chapin v. Lapham, 20 Pick. 467 ; Holmes u. Knights, 10 N. H. 
 175; Harrison v. Sawtel, 10 Johns. 242; Chapin v. Merrill, 4 Wend. 657; 
 Sanborn v. Merrill, 41- Maine, 467; Blount v. Hawkins, 19 Ala. 100; Wyman 
 V. Smith, 2 Sandf. 331 ; Seaman v. Whitney, 24 Wend. 260; Perkins v. Little- 
 fleld, 5 Allen, 370 ; Plemm v. Whitmore, 23 Misso. 430 ; Prather v. Vineyard, 
 4 Gilman, 40; Stack v. Eaney, 18 Cal. 622 ; Marcy v. Crawford, 16 Conn. 549; 
 Bohannon v. Jones, 30 Ga. 488; Tindal u. Touchberry, 3 Strob. 177; Myers v. 
 Morse, 15 Johns. 425 ; Conkey v. Hopkins, 17 Johns. 113 ; Beaman v. Eussell, 
 20 Vt. 205 ; Walker v. Norton, 29 Vt. 226 ; Soule v. Albee, 31 Vt. 142 ; Dorwin 
 V. Smith, 35 Vt. 69; Goodspeed v. Fuller, 46 Maine, 141. More or less dis- 
 tinctly opposed to the text, and to the foregoing and many other like decisions, 
 are Easter v. White, 12 Ohio State, 219; Kelsey v. Hibbs, 13 Ohio State, 340; 
 Brush V. Carpenter, 6 Ind. 78; Draughan v. Bunting, 9 Ire. 10; Simpson «. 
 Nance, 1 Speer, 4 ; Bissig v. Britton, 59 Misso. 204. 
 
 ' Ante, g 512, 519, 521; Thomas v. Delphy, 33 Md. 373; Barrell v. Trussell, 
 4 Taunt 117. 
 
 187 
 
§ 527 LAW OP CONTRACTS. 
 
 naked promise to pay an existing debt of a third person 
 cannot, though in writing, be enforced.^ If the contract of 
 the surety is simultaneous with that of the principal, the 
 consideration which supports the one will sustain also the 
 other ; but, if subsequent, it must be on some fresh con- 
 sideration.^ Forbearance to sue, for example, is sufficient.^ 
 So is the release of a remedy.* 
 
 IV. The Agreement on Consideration of Marriage. 
 
 § 525. At Common Law — Under the Statute. — Mar- 
 riage is, at common law, an adequate consideration for a 
 promise.* And the statute of frauds merely provides, that 
 " any agreement made upon" this consideration shall, to 
 be valid, be in writing.® 
 
 § 526. Defined. — A " consideration of marriage " is an 
 actual marriage, in exchange for which the promise is 
 made ;' as, — '^ 
 
 § 527. Marriage Settlement, etc. — If a man settles 
 property on a woman in consideration that she shall marry 
 him, then she does marry him ; this " consideration of mar- 
 riage " renders the settlement valid even as against his 
 creditors.* And it is the same with a promise to settle 
 
 1 Starr v. Barie, 43 Ind. 478; Beall v. Eidgeway, 18 Ala. 117; Osborne v. 
 Farmers' Loan, etc., Co., 16 "Wis. 35. j 
 
 2 Bebee v. Moore, 3 McLean, 387 ; How v. Kemball, 2 McLean, 103 ; Colbum 
 V. Tolles, 14 Conn. 341 ; Lines v. Smith, 4 Fla. 47 ; Ware v. Adams, 24 Maine, 
 177; Q-iliighan v. Boardman, 29 Maine, 79; Cook v. Elliott, 34 Misso. 586 j 
 Brewster «. Silence, 4 Seld. 207 ; Snevily v. Johnston, 1 "Watts & S. 307. 
 
 3 Smith V. Finch, 2 Scam. 321 ; Martin v. Black, 20 Ala. 309 ; Sage v. Wilcox, 
 6 Conn. 81; Kean «. McKinsey, 2 Barr, 80; Thomas v. Croft, 2 Kich. 113; 
 McCelvy v. Noble, 13 Rich. 330 ; King v. Upton, 4 Greenl. 387 ; Elting v. 
 "V^anderlyn, 4 Johns. 237 ; "Vinal v. Richardson, 13 Allen, 521. 
 
 ' Ante, § 521 ; Kershaw v. Whitaker, 1 Brev. 9 ; Killian v. Ashley, 24 Ark. 
 511; Taylor v. Meek, 4 Blackf. 388; Corbett v. Cochran, 3 Hill, S. C. 41. 
 5 Ante, § 424. 
 « Ante, I 500. 
 ' Ante, \ 406. 
 
 * 1 Bishop Mar. Women, J 777-784; Mountacue v. Maxwell, 1 Stra. 236; 
 188 
 
VOIDABLE UNLESS WRITTEN. § 530 
 
 property, or any other promise which he makes to her or 
 for her benefit, of a sort not to be extinguished by the mar- 
 riage.^ But, by the statute of frauds, such promise must 
 be in writing. Or, — 
 
 § 528. By third Person. — If a third person, by a writ- 
 ing which he has signed, promises a woman, or the man, 
 that he will do a particular thing on their marriage, then <( 
 they marry, tliis promise binds him, being founded on the 
 « ' consideration of marriage.' ' ^ But, — 
 
 § 529. Promise to Marry. — A mere promise to marry is 
 not of this sort. Such a promise is generally mutual, so 
 that the promise of one party is the consideration for that 
 of the other ; but, whether in a particular case this is so or 
 not, it is not a promise on " consideration of marriage,"^ 
 and it need not be in writing.* 
 
 V. The Contract for the Sale of Lands. 
 
 § 530. Executory — (Executed — Seal). — The executed 
 contract for the sale of land — that is, the deed conveying 
 it — must be in writing and under seal, for reasons other 
 than those within this sub-title.^ What we are here to con- 
 sider is the executory " contract or sale of lands, tenements, 
 or hereditaments, or any interest in or concerning them," 
 
 Potts V. Merrit, 14 B. Monr. 406; Pinch u. Pinch, 10 Ohio State, 501; 
 Andrews o. Jones, 10 Ala. 400 ; Naill v. Maurer, 25 Md. 532 ; Pratt v. "Wright, 
 5 Misso. 192 ; Woodward v. "Woodward, 5 Sneed, Tenn. 49. 
 
 1 Eivers v. Thayer, 7 Rich. Bq. 136; Marshall i). Morris, 16 Ga.368; Naill w. 
 Maurer, supra ; Miller v. Goodwin, 8 Gray, 542 ; SuUings v. Bichmond, 5 
 Allen, 187; Tarhell v. Tarbell, 10 Allen, 278; Kimbrough v. Davis, 1 Dev. 
 Eq. 71 ; Boatright v. Wingate, 3 Brev. 428. 
 
 2 1 Bishop Mar. "Women, J 785-787; Ogden v. Ogden, 1 Bland, 284. 
 
 ' Ante, I 428-431; Standiford v. Gentry, 32 Misso. 477; Espy u. Jones, 37 
 Ala. 379 ; AUard v. Smith, 2 Met. Ky. 297. 
 
 * Cork t). Baker, 1 Stra. 34 ; Harrison v. Cage, 1 Ld. Baym. 386 ; Clark v, 
 Pendleton, 20 Conn. 495; Ogden o. Ogden, 1 Bland, 284. 
 
 ' Post, § 560. 
 
 189 
 
§ 533 LAW OF CONTRACTS. 
 
 j_ which the statute requires to be in writing.^ This erecntory^ 
 contract, the reader perceives, need not be under seal.* 
 
 § 531, Questions numerous. — The questions under this 
 head are very many; and it is not possible, as under 
 some others, so to manipulate the subject that all, or nearly 
 all, shall be comprehended in a few larger propositions. 
 The statute embraces — 
 
 § 532. Every Interest in Land — (liCtting — Liicense). 
 
 Under a previous section of this statute of frauds,* a tenancy 
 at will — ^which is a sort of interest in land — may be created 
 without ^writing, where the tenant actually enters by pep- 
 mission ; * but, under this section, there can be no valid oral 
 agreement for such tenancy, not accompanied by possession.' 
 Even for the occupancy of a particular lodging-room in a 
 house, the contract, to bind the parties, must be in writ- 
 ing ; ® but, for board and lodgings genei-ally in the house, 
 it need not be.' And a license to do a thing on land is not 
 necessarily, while it may be, for an " interest in or concern- 
 ing" the land, which requires a writing.^ Thus, — 
 
 § 533. Trees. — Though standing trees are of the realty, 
 and a contract for any interest in them must be in writing,' 
 
 1 Ante, J 500 ; Hairston v. Jaudon, 42 Missis. 380 ; Lumpkin v. Johnson, 27 
 Ga. 485. 
 
 » "Wheeler v. Newton, Free. Ch. 16; Martin ». Weyman, 26 Texas, 460; 
 "Worrall v. Munn, 1 Seld. 229. 
 
 = 29 Car. 2, c. 3, § 1. 
 
 * "Withers v. Larrabee, 48 Maine, 570; Ellis v. Paige, 1 Pick. 43 ; Hingham 
 V. Sprague, 15 Pick. 102; Mhoon v. Drizzle, 3 Dev. 414; Clark v. Smith, 1 
 Casey, Pa. 137. 
 
 ' McMuUen v. Riley, 6 Gray, 500 ; Vaughan v. Hancock, 3 C. B. 766 ; Hardy 
 V. "Winter, 38 Misao. 106 ; Duke v. Harper, 6 Yerg. 280. Contra, under the 
 New York statute, Young v. Dake, 1 Seld. 463 ; under the Indiana statute, 
 HuflFman v. Starks, 31 Ind. 474 ; and under the New Jersey statute, Birckhead 
 V, Cummins, 4 Vroom, 44. 
 
 * Inman v. Stamp, 1 Stark. 12 ; Add. Con. 7th Eng. ed. 145. 
 
 ' "Wright V. Stavert, 2 Ellis & E. 721. See "Wilson v. Martin, 1 Denio, 602 ; 
 Spinner v. Halstead, ,1 Denio, 606. 
 
 * 1 Chit. Con. 11th Am. ed. 418 ; Houston v. Laffee, 4^ N. H. 505. 
 
 » Owens V. Lewis, 46 Ind. 488 ; Hutchins v. King, 1 "Wal. 53 ; Olmstead v. 
 190 
 
VOIDABLE UNLESS WRITTEN. § 534 
 
 it is otherwise where one undertakes to cut them mto cord- 
 wood, and deliver it to the owner at so much a cord.^ 
 And, — 
 
 § 534. Distinction. — Though the cases are not all recon- 
 cilable with one another, and the construction in a few of 
 them is palpably contrary to the statute, the true distinction 
 is, that, if any legal or equitable ownership, however slight, 
 in anything which either at common law or in equity is 
 deemed real estate, is the subject of the contract, or 
 intended to pass by it, the statute of frauds requires it to be 
 in writing ; while, on the other hand, a license or agreement 
 to do anything on, with, or about the realty need not be in 
 writing, where no interest is to pass to the party.^ 
 
 NUes, 7 N. H. 523 j Kingsley v. Holbrook, 45 N. H. 313 ; Green v. Armstrong, 
 1 Denio, 550; McGregor v. Brown, 6 Selden, 114; Harrells. Miller, 35 Missis. 
 700 ; Teakle v. Jacob, 9 Casey, Pa. 376. But see Byassee v. Beese, 4 Met. Ky. 
 372 ; Cain v. McGuire, 13 B. Monr. 340 ; Whitmarsh v. Walker, 1 Met. 313 ; 
 Claflin V. Carpenter, 4 Met. 580 ; Nettleton v. Sikes, 8 Met. 34. 
 
 1 KiUmore v. Hewlett, 48 N. Y. 569. See Sterling v. Baldwin, 42 Vt. 306 j 
 Forbes v. Hamilton, 2 Tyler, 356 ; Freeman v. Headley, 4 Vroom, 523. 
 
 ^ Asno legal doctrine is or can be the subject of a direct adjudication, so 
 this was never thus adjudged ; but, like other doctrines, it depends upon a 
 just consideration of a combination of decisions, statutes, and reasons. Consult, 
 among such other cases as the reader may have access to, the following: 
 Angell V. Duke, Law Eep. 10 Q. B. 174; Sanderson v. Graves, Law Rep. 10 
 Ex. 234 ; Davis v. Walker, 4 Hay w. 295 ; Pitman v. Poor, 38 Maine, 237 ; Love 
 V. Cobb, 63 N. C. 324; Riddle?;. Brown, 20 Ala. 412; Copper Hill Mining Co. o. 
 Spencer, 25 Cal. 18 ; Bowman v. Conn, 8 Ind. 58 ; Scoggin v. Slater, 22 Ala. 
 687 ; Rhodes v. Otis, 33 Ala. 578 ; Gore «. McBrayer, 18 Cal. 582 ; Bostwick v: 
 Leach, 3 Day, 476 ; Frear v. Hardenbergh, 5 Johns. 272 ; Onderdonk v. Lord, 
 Hill & D. 129 ; Howard u. Baston, 7 Johns. 205 ; Phillips v. Thompson, 1 
 Johns. Ch. 131 ; Finch v. Finch, 10 Ohio State, 501 ; Hogg o. Wilkins, 1 
 Grant, Pa, 67 ; Richards v. Richards, 9 Gray, 313 ; Bamet v. Dougherty, 8 
 Casey, Pa. 371 ; Trammell v. Trammell, 11 Rich. 471; Carroway v. Anderson, 
 1 Humph. 61 ; May v. Baskin, 12 Sm. & M. 428 ; Buck v. Pickwell, 27 Vt. 157 ; 
 Barnard u. Whipple, 29 Vt. 401 ; Bliss v. Thompson, 4 Mass. 488, 491 ; Cook 
 V. Stearns, 11 Mass. 533 ; Hall v. McLeod, 2 Met. Ky. 98 ; Wright v. DeGroff, 
 14 Mich. 164 ; Folsom v. Great Falls Manuf. Co., 9 N. H. 355 ; New Orleans, etc.. 
 Railroad v. Moye, 39 Missis. 374 ; Keyser v. School District^ 85 N. H. 477 ; Fisher 
 V. Fields, 10 Johns. 495 ; Benedict v. Bebee, 11 Johns. 145 ; Smith v. Burnham, 
 8 Sumner, 485; Henley, «. Brown, 1 Stew. 144; Chambliss v. Smith, 30 Ala. 
 
 191 
 
§ 537 LAW OF CONTRACTS. 
 
 § 535 . Consideration, — Returning to a distinction already 
 mentioned,^ if a conveyance bargained for is actually made, 
 any oral promise regarding the consideration — as, to pay 
 for the land — is good.^ But, even then, if the considera- 
 tion itself is something concerning lands, within this statute 
 of frauds, the promise to perform the thing must be in 
 writing to be valid. ^ 
 
 VI. Agreements not to he performed within a Year. 
 
 § 536. Terms of the Provision. — Though an agree- 
 ment may not be within any one of the four classes already 
 considered, yet, if it "is not to be performed within the 
 space of one year from the making thereof," it must, to 
 bind the parties, be in writing.* The reader perceives, that, 
 by these express words, unless the terms of the agreement 
 affirmatively carry the completed doing of the thing beyond 
 the year, it is not a case in which a writing is required. 
 Therefore — 
 
 § 537. May or must. — The leading doctrine under this 
 head is, that a writing is essential or not according as the 
 
 366 ; Hammond v. Cadwallader, 29 Misso. 166 ; Graves o. Graves, 45 N. H. 
 323 ; Newnan v. Carroll, 3 Terg. 18 ; Ledford v. Perrell, 12 Ire. 285 ; Bryant 
 V. Hendricks, 5 Iowa, 256 ; Bannon v. Bean, 9 Iowa, 395 ; Owen v. Bstes, 5 
 Mass. 330; Bruce o. Hastings, 41 Vt. 380; James v. Drake, 39 Texas, 143; 
 White V. Butt, 32 Iowa, 335 ; Gould v. Mansfield, 103 Mass. 408 ; Copelsmd «. 
 "Wading River Eeservoir, 105 Mass. 397; Thayer v. Bock, 13 "Wend. 53; 
 Detroit, etc., Eailroad v. Forbes, 30 Mich. 165. 
 
 1 Ante, I 503 ; post, I 545. 
 
 2 -Price V. Sturgis, 44 Cal. 591 ; "Whitbeck v. "Whitbeck, 9 Cow. 266; Nutting 
 V. Dickinson, 8 Allen, 540; Basford v. Pearson, 9 Allen, 387 ; Mason v. Mason, 
 8 Bush, 35 ; Mott v. Hurd, 1 Root, 78 ; Gillet v. Burr, 1 Root, 74; Bradley ». 
 Blodget, Kirby, 22 ; Nickerson o. Saunders, 36 Maine, 413 ; Thayer v. Viles, 
 23 "Vt. 494 ; Brackett v. Evans, 1 Cush. 79 ; Preble v. Baldwin, 6 Cush. 549 ; 
 Smith V. Goulding, 6 Cush. 154 ; Short v. "Woodward, 13 Gray, 86 ; Trow- 
 bridge V. "Wetherbee, 11 Allen, 361. And see Lower v. "Winters, 7 Cow. 263. 
 
 ' Townsend u. Townsend, 6 Met. 319 ; Patterson v. Cunningham, 3 Pairf. 
 606. 
 
 * Ante, I 500. 
 
 192 
 
VOIDABLE UNLESS WRITTEN. § 539 
 
 completed doing of the thing must, by the terms of the 
 agreement, necessarily be postponed beyond the year, or 
 may fall within it : as, if the performance depends on the 
 death of a person, or the coming in of a ship, or any other 
 contingent event which may or may not transpire within the 
 year, no writing is required ; otherwise, if there is a fixed 
 date, forward more than a year.^ Thus, — 
 
 § 538. Agreement to marry. — An agreement in genera] 
 words to marry, or to marry Avithin three years, need not 
 be in writing, because it can be performed within a year ;* 
 but a promise to marry after the lapse of a year is void if 
 oral.^ Again, — 
 
 § 539. Ante-nuptial Contract. — If, in a particular in- 
 stance, an ante-nuptial contract concerning the disposition 
 of property to heirs is not required to be in writing as 
 founded on the consideration of marriage,* neither need it 
 be, by force of the present clause ; because the parties may 
 marry and die within a year.* And — 
 
 > Souch V. Strawbridge, 2 0. B. 808 ; Knowlman v. Bluett, Law Bep. 9 Ex. 
 1; Bussell ». Slade, 12 Conn. 455; Burney ». Ball, 24 Ga. 505; Wiggins o. 
 Keizer, 6 Ind. 252 ; Ellicott v. Peterson, 4 Md. 476 ; Peters v. "Westborough, 19 
 Pick. 364 ; Soggins v. Heard, 31 Missis. 426 ; Foster v. McO'Blenis, 18 Misso. 88 ; 
 Suggett V. Cason, 26 Misso. 221; Blanding v. Sargent, 33 N. H. 239; Esty o. 
 Aldrich, 46 N. H. 127; Moore v. Pox, 10 Johns. 244; Lockwood v. Barnes, 8 
 Hill, N. T. 128 ; Broadwell v. Getman, 2Denio, 87 ; Gadsden v. Lance, 1 McMuL 
 Bq. 87; Izard o. Lsard, 1 Des. 116; Thompson v. Gordon, 3 Strob. 196; 
 Thouvenin v. Lea, 26 Texas, 612; Sherman v. Champlain Transp. Co., 31 Vt. 
 162 ; Blanchard v. "Weeks, 34 Vt. 589 ; Rogers v. Brightman, 10 "Wis. 55 ; "White 
 V. Hanchett, 21 "Wis. 415; Packet Co. v. Sickles, 5 "Wal. 580; Harris v. Porter, 
 2 Harring. Del. 27; Comstock v. "Ward, 22 111.248; Herrin v. Butters, 20 
 Maine, 119; Summerall v. Thorns, 3 Pla. 298; Shipley v. Patton, 21 Ind. 169; 
 Holbrook v. Armstrong, 1 Fairf. 31 ; First Baptist Church v. Brooklyn Fire 
 Ins. Co., 19 N. T. 305. 
 
 ' Paris V. Strong, 51 Ind. 339 ; Withers v. Richardson, 5 T. B. Monr. -94. 
 
 ' Nichols V. "Weaver, 7 Kan. 373 ; Derby v. Phelps, 2 N. H. 515. 
 
 « Ante, 2 527. 
 
 ' Houghton V. Houghton, 14 Ind. 505. "Within the same principle, see Hill 
 V. Jamieson, 16 Ind. 125 ; Richardson v. Pierce, 7 R. I. 330 ; Lyon v. King, 11 
 Met 411 ; "Worthy v. Jones, 11 Gray, 168; Doyle v. Dixon, 97 Mass. 208. 
 
 193 
 
§ 545 LAW OF CONTBACT8. 
 
 § 540. Support during Iiife. — An undertaking to sup- 
 port one during his life is of the same sort ; it need not be 
 in writing, because he may die before the year is ended.* 
 So — 
 
 § 541. Wort during Anotlier's Life. — An agreement 
 to work for another while he lives, need not be in writing ; 
 because death may end it within the year.^ 
 
 § 542. Other Labor Agreements. — If one agrees to 
 labor for another more than a year, though to be paid at 
 intervals of less, he cannot be required to do any part of the 
 work, or to respond in damages for not doing it, unless the 
 agreement is^in writing." And it is the same with any other 
 form of undertaking to work for more than a year.* But, — 
 
 § 543. WMle in Employ. — If the agreement is to work 
 for a company while a particular agent is in its employ, this 
 is not within the statute of frauds ; for perhaps the agent 
 may cease to serve the company before the year closes.* 
 Also, — 
 
 § 544 . By AVill. — A promise to pay for services by a 
 bequest is good, though oral ; because the promisor may not 
 live a year.® 
 
 § 545. Executed on One Side. — If services have been 
 rendered, or goods or lands delivered, under an oral con- 
 
 ' Bull V. McCrea, 8 B. Monr. 422 ; Howard v. Burgen, 4 Dana, 137 ; Hutchin- 
 6oa V. Hutchinson, 46 Maine, 164 ; Dresser v. Dresser, 35 Barb. 573. But see 
 the argument of counsel and authorities cited in Enowlman v. Bluett, Law 
 Kep. 9 Ex. 1, 3. 
 
 " Updike V. Ten Broeck, 3 Vroom, 105. 
 
 " Emeiy v. Smith, 46 N. H. 151; Tuttle v. Swett, 31 Maine, 555; Hill v. 
 Hooper, 1 Gray, 131 ; Giraud v. Eiohmond, 2 C. B. 835. On the same princi- 
 ple, see HoUoway v. Hampton, 4 B. Monr. 415. 
 
 * Kelly V. Terrell, 26 Ga. 551 ; Scoggin v. Blackwell, 36 Ala. 351 ; Nones v. 
 Homer, 2 Hilton, 116; Amburger v. Marvin, 4 E. D. Smith, 393; Little v. 
 Wilson, 4 B. D. Smith, 422; Squire, v. "Whipple, 1 Vt. 69; Hinckley v. South- 
 gate, 11 Vt. 428 ; Pitcher v. Wilson, 5 Misso. 46 ; Drummond v. Buirell, 13 
 Wend. 807. 
 
 ' Boberts v. Bockbottom Co., 7 Met 46. 
 
 ' Jilson V. Gilbert, 26 Wis. 687. 
 194 
 
VOIDABLE UNLESS WRITTEN. § 546 
 
 tract, which, within this clause, ought to have been in 
 writing, the party benefited must pay for them, as we have 
 already seen.* But, if the payment is executory, and by 
 the terms of the contract^ is not to be made until after a 
 year, some courts hold that this part of the agreement is 
 void, though the other is executed;^ while other courts 
 accept the oral promise as good.^ It is easy to see, that, 
 in such a case, the court should not permit the defendant to 
 set up the fact of this express promise being oral to annul 
 any promise of payment which the law would imply ; * but 
 difficult to perceive how an action could be maintained on 
 the express promise itself, contrary to the inhibition of the 
 statute.® The true question, therefore, is, — Will the law 
 imply a promise, in exact terms with an express one, to be 
 relied on in the stead of the express one, which the statute 
 declares to be void? If it will, then the doctrine must be, 
 that an implication — a mere fiction of the common law — 
 may override the words of a statute. 
 
 § 546. The Doctrine of this Chapter restated. 
 
 The Statute of Frauds, in the section under consideration 
 in this chapter, has no relation to contracts which are exe- 
 cuted on both sides. Its words are, " No action shall be 
 brought," etc.* If, therefore, the thing agreed is done, so 
 that there is no occasion for an action, the case is not within 
 the statute. Again, the doing, pursuant to an oral agree- 
 
 ' Ante, ^ 603, 536; Montague v. Garnett, 3 Bush, 297; Harwood u. Jones, 
 10 Gill & J. 404; Hill v. Smith, 12 Rich. 698; Tatterson v. Suffolk Manuf. Co., 
 106 Mass. 66. 
 
 ' Marcy v. Marey, 9 Allen, 8. 
 
 " Berry v. Doremus, 1 Vroom, 399 ; Jilson v. Gilbert, 26 Wis. 637. 
 
 * See King v. Welcome, 5 Gray, 41 ; Compton v, Martin, 5 Rich. 14 ; S wanzey 
 «. Moore, 22 111. 63. 
 
 ' Sheehy v. Adarene, 41 Vt. 541. 
 
 • Ante, I 500. 
 
 195 
 
§ 546 LAW OF CONTKACTS. 
 
 ment, of a thing within the statute, is a good consideration 
 for a promise to perform something not within it ; and, on 
 this mere oral promise, an action may be maintained. But, 
 on the other hand, where the thing orally promised is within 
 the statute, no action will lie on this promise, whatever the 
 nature of the consideration, and though it has been paid or 
 performed. Once more, the statute does not abrogate any- 
 thing in the common law of contracts ; it merely provides, 
 that, in some cases, and to some extent, common-law 
 requisites shall be reduced to writing. Consequently, 
 though a contract is in writing, and within all the statutory 
 requirements, it will be invalid if it would have been so 
 before the enactment of the statute. 
 
 Such is the general doctrine, running through the entire 
 section. Descending to the specific clauses, it is believed 
 that no appended statement can make plainer what is laid 
 down in the foregoing expositions. They are all of prime 
 importance, and a careful reperusal of the last five sub- 
 titles will be more helpful than could be anything further 
 in this place. 
 196 
 
SAIiES OF GOODS. § 547 
 
 CHAPTER XXVII. 
 
 SALES OF GOODS VOID BT THE STATUTE OP FRAUDS. 
 
 § 547. Formalities aside from Statute. — Aside from 
 the statute of frauds, an executory contract for the pur- 
 chase and sale of goods does not difier from any other ; 
 requiring only the mutual consent of the parties, expressed 
 either orally or in writing, and a consideration. To com- 
 plete the sale, so that the title will pass to the buyer, the 
 goods must be separated from the bulk of which they are a 
 part, or in some other way be so distinguished or specified 
 that they can be known ; and the terms must be definitively 
 agreed upon. But neither actual delivery nor payment is 
 indispensable.^ The buyer may then take possession of 
 them, " on payment or tender of the price, and not other- 
 wise," where nothing had been arranged as to the time of 
 payment or of delivery, or without payment if there had 
 been an affirmative agreement for credit.^ A third person, 
 who has attached the goods as the seller's, or bought them 
 of him, occupies a different position ; and, as against him, 
 
 1 2 Kent. Com. 492 ; 1 Chit. Con. 11th Am. ed. 618-528 ; De Ponclear i». Shot- 
 tenkirk, 3 Johns. 170 ; Carter v. Jarvis, 9 Johns. 143 ; Gardiner v. Suydam, 3 
 Seld. 357 ; McClung v. Eelley, 21 Iowa, 508 ; Tome v. Dubois, 6 Wal. 548 ; Fol- 
 som V. Moore, 19 Maine, 252 ; Stone u. Peacock, 35 Maine, 385 ; McCoy v. 
 Moss, 5 Port. 88 ; Cockrell v. "Warner, 14 Ark. 145 ; Walden a. Murdock, 23 
 Cal. 540 ; Wilson v. Stratton, 47 Maine, 120 ; Sweeney v. Owsley, 14 B. Monr. 
 413; Doremus v. Howard, 3 Zab. 390; Connor v. Williams, 2 Rob. N. Y, 
 46 ; Dunlap v. Berry, 4 Scam. 327 ; Wing ». Clark, 24 Maine, 366 ; Q-oodrum 
 V. Smith, 3 Humph. 542 ; Broyles y. Lowrey, 2 Sneed, Tenn. 22 ; Hudson v. 
 Weir, 29 Ala. 294; Riddle u. Varnum, 20 Pick. 280; McLaughlin u. Piatti, 
 27 CaL 451. 
 
 ' 2 Kent Com. 492; Atwoodo. Lucas, 53 Maine, 508. 
 
 197 
 
§ 550 LAW OF CONTRACTS. 
 
 to render the title of the first purchaser complete, they are 
 required to have been paid for, or delivered, or both, or 
 neither, according to the circumstances, and the varying 
 adjudications of the different tribunals.^ 
 
 § 548, What for tMs Chapter. — These views are intro- 
 ductory, and the topic will not be further pursued. Through 
 the remainder of this chapter, we are to consider the effect 
 of the statute of frauds upon sales of personal property and 
 executory agreements for its sale. 
 
 § 549. Terms of the Statute. — By the parent statute 
 of frauds, in a section distinct from the one explained in the 
 last chapter,^ it is provided, that — 
 
 "No contract for the sale of any goods, wares, and merchandise, for the 
 price of ten pounds sterling or upwards, shall be allowed to be good ; except 
 the buyer shall accept part of the goods so sold, and actually receive the same, 
 or give something in earnest to bind the bargain, or in part payment, or that 
 some note or memorandum in writing of the said bargain be made, and signed 
 by the parties to be charged by such contract or their agents thereunto law- 
 fully authorized." ' 
 
 § 550. "Goods, Wares," etc. — This statute does not 
 extend to every personal thing which is the subject of sale, 
 but only to "goods, wares, and merchandise;" which 
 words, while they comprehend most of what is classed as 
 personal property, do not all.* They have been interpreted 
 
 ' Caster v. Davies, 8 Ark. 213 ; Davis v. Bansom, 4 Mich. 238 ; "Woodbum 
 V. Cogdal, 39 Misso. 222 ; Samuels v. Gorham, 5 Cal. 226 ; Jorda v. Lewis, 1 
 La. An. 59 ; Vining v. Gilbreth, 39 Maine, 496 ; Barr v. Eeitz, 3 Smith, Pa. 256 ; 
 Pierce v. Chapman, 8 Vt. 334, 337 ; Poster v. "Wallace, 2 Misso. 231 ; Ludwig 
 V. Puller, 17 Maine, 162; Kendall v. Hughes, 7 B. Monr. 368; Veazie v. Som- 
 erby, 5 Allen, 280 ; Lake o. Morris, 30 Conn. 201 ; Marshall v. Morehouse, 14 
 La. An. 689; Short v. Tinsley, 1 Met. Ky. 397 ; Howland v. Harris, 4 Mason, 
 497; Sawyer v. Nichols, 40 Maine, 212; Tanneret v. Edwards, 18 La. An. 
 606; Eockwood v. Collamer, 14 Vt. 141; Stephenson v. Clark, 20 Vt. 624; 
 Berry v. Bnsell, 2 Grat. 333; Parsons v. Dickinson, 11 Pick. 352. 
 
 « Ante, 2 498-500. 
 
 3 29 Car. 2, c. 3, J 17. 
 
 * See, as to statutory terms of this sort in the criminal law. Bishop Stat. 
 Crimes, g 209, 345. 
 198 
 
SALES OF GOODS. § 551 
 
 liberally ; even, by some American courts, to include cor- 
 poration stocks,^ bank notes," and promissory notes.' Other 
 of our courts * and the English stop short of this ; and, in 
 the latter, they are held not to extend to stocks.* In actual 
 usage among the dealers in various sorts of personal prop- 
 erty, it is believed that the instruments of trade and 
 commerce, such as bank bills and promissory notes, and 
 g'^«ls^■-partnership interests in corporate enterprises, called 
 stocks, ar^ not often designated as "goods, wares, and 
 merchandise ;" though, like men's souls, they are not unfre- 
 quently in the market, and bought and sold. Again, — 
 
 § 551. liabor and Materials. — Labor and materials are 
 not within these statutory words ; therefore an agreement 
 with a mechanic to manufacture an article, furnishing what- 
 ever is to be used about the work, need not be in writing.® 
 But if the contract is for merchandise, as distinguished from 
 a special bargain to make and deliver a particular article, 
 the case is within the statute, though the thing bargained 
 for is to be delivered in the future, and it does not affirma- 
 tively appear to be yet manufactured, and it is not in fact.^ 
 Again, — 
 
 1 Tisdale v. Harris, 20 Pick. 9; North v. Forest, 15 Conn. 400; Southern 
 Ins., etc, Co. v. Cole, 4 Fla. 359 ; Colvin v. 'Williams, 3 Har. & J. 38. 
 
 ' Eiggs V. Magruder, 2 Cranch C. C. 148. 
 
 " Baldwin v. "Williams, 3' Met. 365; G-ooch v. Holmes, 41 Maine, 523. 
 
 * Whittemore v. Gibbs, 4 Fost. N. H. 484 ; Beers v. Crowell, Dudley, Ga. 
 28; Hudson v. "Weir, 29 Ala. 294. 
 
 5 Bowlby V. Bell, 8 C. B. 284; Humble v. Mitchell, 11 A. & E. 205; "Watson 
 V. Spratley, lOExch. 222; Tempest ». Kilner, 3 C. B. 249; Knights. Barber, 
 16 M. & W. 66 ; Heseltine v. Siggera, 1 Exch. 856. 
 
 " Parsons v. Loucks, 48 N. Y. 17; Cummings i;. Dennett, 26 Maine, 897; 
 Finney v. Apgar, 2 Vroom, 266 ; Crookshank v. Burrell, 18 Johns. 58 ; Abbott 
 V. Gilchrist, 38 Maine, 260; Allen v. Jarvis, 20 Conn. 88; Mixer v. Howarth, 
 21 Pick. 205; Spencer v. Cone, 1 Met. 288; Phipps v. McFarlane, 3 Minn. 109. 
 And, as relating to this principle, consult Eentch v. Long, 27 Md. 188 ; Bird v. 
 Muhlinbrink, 1 Rich, 199; Bichelberger v. McCauley, 5 Har. & J. 218; Gads- 
 den V. Lance, 1 McMul. Eq. 87 ; Woodford v. Patterson, 32 Barb. 630; Suber v. 
 Pullin, 1 S. C. 278 ; "Whitehead v. Root, 2 Met. Ky. 584. 
 
 ' Lamb V. Crafts, 12 Met. 358, 356 ; Edwards v. Grand Trunk Railway, 54 
 Maine, 105 ; Waterman v. Meigs, 4 Cush. 497 ; Jackson v. Covert, 5 Wend. 
 
 199 
 
§ 554 LAW OP CONTEACTS. 
 
 § 552. Price. — The contract is not within the statute, 
 therefore is governed by the common-law rules, where the 
 price is less than a certain sum. We have seen, that, in 
 England,^ this sum is ten pounds ; in Massachusetts,* In- 
 diana,^ and New York* respectively, it is fifty dollars, which 
 is probably not uncommon with us. In Maine* and New 
 Jersey* it is thirty dollars. If several articles are sold 
 together, no one of which amounts to the statutory sum, 
 yet collectively they do, the case is within the statute.' 
 
 § 553. Memorandum. — What was said of the memo- 
 randum in the last chapter* will answer also for this. But 
 no writing is necessary where any one of the things about to 
 be mentioned occurs ; namely, — 
 
 § 554. "Accept and Receive." — If the "buyer shall 
 accept part of the goods so sold, and actually receive the 
 same," or the whole, no other formality is necessary; 
 though, of course, there must still be a contract of sale, 
 valid at common law.' And it is immaterial that the trans- 
 fer is on a day subsequent to the making of the oral bargain." 
 There are some nice questions as to what amounts to a 
 delivery.^^ 
 
 139; Sawyer v. Ware, 36 Ala. 675; Newman v. Horris, 4 Har. & McH. 421 ; 
 Garbutt v. Watson, 5 B. & Aid. 613. 
 
 I Ante, I 549. 
 
 » Mass. Gen. Stats, c. 105, ? 5. 
 
 » Smith V. Smith, 8 Blaokf. 208. 
 
 * Dykers v. Townsend, 24 N. Y. 57. 
 ' Bucknam v. Nash, 3 Fairf. 474. 
 
 • Carman v. Smiok, 3 Green, N. J. 252. 
 ' Gilman v. Hill, 36 N. H. 311. 
 
 » Ante, I 509-513. 
 
 ' Outwater v. Dodge, 7 Cow. 85 ; Denny u. Williams, 5 Allen, 1 ; Cutwater 
 V. Dodge, 6 Wend. 897; Houghtaling w. Ball, 19 Misso. 84; Ross v. Welch, 11 
 Gray, 235 ; Vincent v. Germond, 11 Johns. 283 ; McTaggart v. Eose, 14 Ind. 
 230; Denmead v. Glass, 30 Ga. 637 ; Davis v. Eastman, 1 Allen, 422 ; Chamber- 
 lin V. Robertson, 31 Iowa, 408; Malone «. Plato, 22 Cal. 103. 
 
 I" Bush V. Holmes, 53 Maine, 417 ; McKnight v. Dunlop, 1 Seld. 537; Field 
 t>. Runk, 2 Zab. 525; Yeazie v. Holmes, 4Q Maine, 69; Maish v. Hyde, 3 Gray, 
 331. 
 
 " See the last two notes ; also 1 Chit. Con. 11th Am. ed. 554 et seq. 
 200 
 
SALES OF GOODS. § 557 
 
 § 555. "Earnest." — The statute distinguishes between 
 giving a thing in " earnest," and giving it in part payment ; 
 so that, though part payment may be deemed one form of 
 earnest, and the delivery of a part of the goods another 
 form, the meaning of the word here is any money or other , 
 article of value, however small in worth, which the buyer/, 
 passes to the seller by whom it is abeepted in token of good j 
 faith.^ But it must be retained by the latter, or it is not 
 "earnest."'' "It has fallen," says Kent, "into very 
 general disuse in modern times, and seems rather to be 
 suited to the manners of simple and unlettered ages, before 
 the introduction of writing, than to the more precise and 
 accurate habits of dealing at the present day. It has been 
 omitted in the New York Eevised Statutes."" Therefore, 
 instead of earnest, where there is neither a writing nor a 
 delivery of goods, the buyer commonly resorts to the other 
 alternative ; namely, — 
 
 § 556. Part Payment. — The bargain, in such a case, is 
 good if the "buyer" shall "give something in part pay- 
 ment ;" * otherwise, it is not.* And, — 
 
 § 557. Void. — When there is any non-compliance with 
 the section of the statute of frauds discussed in this chapter, 
 the contract is not, as under the section examined in the 
 last, voidable,^ but it is void.^ The difference appears in 
 the statutory words themselves. 
 
 ' See and compare, in connection with the terms of the statute itself, the word 
 "Earnest" in the law dictionaries ; also 2 Kent Com. 495 and note ; 2 Bl. Com. 
 447, 448 ; Add. Con. 7th Eng. ed. 449, 450 ; 1 Chit. Con. 11th Am. ed. 519, 520, 
 564, 565 ; Blakey v. Dinsdale, Cowp. 661, 664 ; Bach v. Owen, 6 T. E. 409, 410 ; 
 Langfort v. Tiler, 1 Salk. 113. 
 
 » Blenkinsop v. Clayton, 1 Moore, 328, 7 Taunt. 597. 
 
 ' 2 Kent Com. 495, note. 
 
 * Ante, I 549 ; Pierce v. Gibson, 2 Ind. 408. 
 
 ' Kirby v. .lohnson, 22 Misso. 354. 
 
 « Ante, I 506. 
 
 » Alderton v. Buchoz, 3 Mich. 322; Daniel v. Frazer, 40 Missis. 507; Head ». 
 Goodwin, 37 Maine, 181. 
 
 201 
 
§ 558 LAW OF CONTEACTS. 
 
 § 558. The Doctrine of this Chapter restated. 
 
 The section of the Statute of Frauds considered in this 
 chapter differs from the one before discussed in the follow- 
 ing particulars : A contract not conforming to its provisions 
 is void, instead of voidable as under the other section; 
 and, while, under the other, a writing is always required, 
 under this it is but one among alternative methods by which 
 the contract is made good. On the other hand, this 
 section, like the other, renders no contract valid which was 
 not so at the common law. 
 202 
 
OTHER CONTRACTS. § 563 
 
 CHAPTER XXVm. 
 
 OTHER CONTRACTS AS REQUIRING SPECIAL FORMS OR NOT. 
 
 § 559. General Rule, etc. — Still remembering that, in 
 the absence of any special rule, an oral contract is equally 
 effective with a Written one,^ let us see how the question 
 stands as to a few other particular contracts. 
 
 § 560. Conveyances of Land. — As we have already inci- 
 dentally seen,* a deed of real estate conveying the freehold 
 must be in writing under seal, irrespective of the statute of 
 frauds.^ This statute is silent as to the seal ; but it requires 
 every sort of conveyance of land (except leases for three 
 years or less, reduced, in some of our States, to one year), 
 and all contracts for any interest in land, to be in writing.* 
 But — 
 
 § 561. Receive Seisin. — The authority to receive seisin 
 may be orally conferred.® Again, — 
 
 § 562, Trusts. — By the parent statute of frauds, ex- 
 press trusts in real estate can be created only by writing, 
 but this does not extend to implied trusts.* This provision 
 has been generally adopted in our States.' 
 
 § 563. Assignment. — The contract termed an assign- 
 
 1 Ante, 2 49, 499. 
 » Ante, 27, 47, 530. 
 
 ' Crowell V. Maughs, .2 Gilman, 419 ; McCabe v. Hunter, 7 Misso. 355 ; 
 Switzer v. Knapps, 10 Iowa, 72 ; Arms v. Burt, 1 Vt. 303. 
 
 * Ante, I 630, 535 ; 4 Kent Com. 450 et seq. ; Steel v. Payne, 42 Ga. 207; 
 Crowell V. Maughs, supra ; "Whitney v. Swett, 2 Fost. N. H. 10 ; Veghte v. 
 Earitan Water Power Co., 4 C. E. Green, 142 ; Sicard v. Davis, 6 Pet. 124, 135. 
 
 » Pratt ». Putnam, 13 Mass. 361 ; Keed v. Marble, 10 Paige, 409. 
 
 • 29 Car. 2, c. 1, § 7-9; Throop«. Hatch, 3 Abb. Pr. 23. 
 
 ' 4 Kent Com. 305.; Ready v. Kearsley, 14 Mich. 215 ; Kane v. Gott, 24 
 Wend. 641 ; Church ©.Sterling, 16 Conn. 388; Moore v. Moore, 38 N. H. 382 ; 
 Fleming v. Donahoe, 5 Ohio, 255 ; Kasdall v. Rasdall, 9 Wis. 379. 
 
 203 
 
§ 565 LAW OF CONTEACTS. 
 
 1 ment, and the contract-interest thereby transferred, are 
 distinct things ; so that, though the latter was created by a 
 writing, or even by an instrument under seal, the former 
 may be oral.^ Even a judgment may be orally assigned.* 
 These propositions include another, namely, that a record 
 or specialty may be assigned by writing without seal.' Yet 
 an assignment, like any other contract, may, by a distinct 
 provision of law, be required to be under seal. Thus, — 
 
 § 564. Interest in Laud. — By the statute of frauds, as 
 we have seen,* there can be no valid conveyance even of an 
 equitable interest in real estate except by writing. Whence 
 it follows, that, if one has a bond for a deed, he cannot make 
 a valid oral assignment of it, as between himself and his 
 assignee ; though, as the defence under the fourth section 
 is personal only,^ the maker of the bond could not plead 
 the statute in bar of a suit to compel its specific perform- 
 ance.^ 
 
 §565. Notes and Bills. — ' ' By the custom of merchants, 
 bills of exchange and promissory notes, and other similar 
 negotiable instruments, must be reduced into writing, and 
 signed by the parties thereto.'" But this results equally 
 
 • Ante, I 49; Currier v. Howard, 14 Gray, 511, 513; Alien v. Pancoast, 
 Spencer, 68 ; Mitchell o. Mitchell, 1 Gill, 66 ; Sexton ». Fleet, 2 Hilton, 477 ; 
 Galway v. Fullerton, 2 C. E. Green, 389 ; Vose v. Handy, 2 Greenl. 322 ; Lit- 
 tlefieldi). Smith, 17 Maine, 327. 
 
 " Ford V. Stuart, 19 Johns. 342. And see Brewer v. Franklin Mills, 42 N. 
 H. 292. 
 
 ' Dawson v. Coles, 16 Johns. 51 ; Howell o. Bulkley, 1 Nott & McO. 249, 
 250 ; Becton v. Ferguson, 22 Ala. 599 ; Gotten v. "Williams, 1 Fla. 37 ; Morange 
 V. Edwards, 1 E. D. Smith, 414; Moore v. Waddle, 34 Cal. 146. 
 
 « Ante, i 530, 532, 534, 560. 
 
 ' Ante, i 606. 
 
 • The authorities to this plain proposition are less distinct and direct than 
 one might desire, but the reader may consult the following : Bullion v. Camp- 
 hell, 27 Texas, 653 ; Newnan v. Carroll, 3 Yerg. 18 ; Currier v. Howard, 14 
 Gray, 511 ; Robinson v. "Williams, 3 Head, 640; Bichards v. Richards, 9 Gray, 
 813; Finch v. Pinch, 10 Ohio State, 501, 608, 509; Millard v. Hathaway, 27 
 Cal. 119 ; Love v. Cobb, 63 N. C. 324 ; Durst ti. Swift, 11 Texas, 273 ; Chadsey 
 V. Lewis, 1 Gilman, 153. 
 
 ' 1 Chit. Con. 11th Am. ed. 91. 
 204 
 
OTHER CONTRACTS. § 567 
 
 \ 
 
 also from the necessity of the case . Words are air, and there 
 could be no endorsement written on the back of oral words. 
 Yet we have seen^ that an oral acceptance of a bill is good. 
 § 566. Other Contracts. — There are probably, in every 
 one of our States, some other contracts required to be in 
 special forms. But they depend on statutes differing in the 
 different States, or not in constant use, or on statutes of 
 the United States ; not, therefore, within the scope of these 
 pages. 
 
 § 567. The Doctrine of this Chapter restated. 
 
 The Statute of Frauds is tlie only one of constant use, 
 prevailing in all our States, by which special forms have 
 been added to the common-law rules for certain specific 
 sorts of contract. Yet by the common law, in its later 
 period, and irrespective of this statute, a seal is necessary 
 to a conveyance of land, transferring the seisin. Prima 
 facie, any contract, by mere oral words, is good. One who 
 claims that a particular contract, other than a conveyance 
 of land, or a bill or note, is not good without writing, must 
 support his claim by showing the statute. And there are 
 instances, not mentioned in the preceding chapters, in which 
 he can do so ; as, in some of our States, an insurance policy 
 is by statute required to be in writing,* and perhaps even 
 under seal.* 
 
 » Ante, I 53. 
 » Ante, I 50. 
 • Lindauer v. Delaware Ina. Co., 18 Ark. 461. 
 
 205 
 
§ 570 LAW OF CONTEACTS. 
 
 CHAPTEE XXIX. 
 
 CONTRACTS AS AFFECTED BY PARTICULAR AND GENERAL 
 CUSTOM AND USAGE. 
 
 § 568. Law as Part of Contract. — The law is deemed 
 to be a part of every contract.^ Thus, — 
 
 § 569. Partnership. — If parties enter into a contract 
 which the court construes to be a partnership, the law of 
 partnership is resorted to by the judge on questions not 
 settled by its terms. ^ 
 
 § 570. Custom and Usage as IJaw. — The common law 
 is to a large extent made up of usage lipened into custom.' 
 In the English books, particularly the older ones, there are 
 distinctions between "usage," "custom," and " prescrip- 
 tion," not necessary to be considered in this connection.* 
 But, in our States, whenever custom has become universal 
 X through the State, and from its long standing is presumed 
 to be known by all, — if it is reasonable, and not repugnant 
 to any rule of law,® — the courts take judicial cognizance of 
 it, though in the first instance it may or may not have 
 been shown in evidence ; for, said Caton, C. J., they " will 
 not pretend to be more ignorant than the rest of mankind." * 
 
 » "Webster ». Rees, 23 Iowa, 269; Clark v. Pinney, 7 Cow. 681; Rogers t». 
 Allen, 47 N. H. 529 ; The State v. AUis, 18 Ark. 269. 
 
 " Ludlow V. Cooper, 4 Ohio State, 1 ; Livingston v. Cox, 6 Barr, 860; Kramer 
 V. ArthujPs, 7 Barr, 165; Honore v. Colmesnil, 1 J. J. Mar. 506; Allen v. Davis, 
 13 Ark. 28. 
 
 » 1 Bl. Com. 68. 
 
 * And see Lowry v. Read, 8 Brews. 452. 
 
 ' See post, I 571. 
 
 ' Munn V. Burch, 25 111. 35, 38. 
 206 
 
CUSTOM AND USAGE. § 572 
 
 The custom is then accepted as a part of the general law of 
 the State ; and, in ordinary legal language, is no more 
 known by the name custom. It is simply law.^ But — 
 
 § 571. Custom and Usage proper. — The terms "cus- 
 tom" and " usage " are commonly applied where the thing 
 signified by them has not ripened or expanded into general 
 law. If it pertains to a particular city or neighborhood 
 only, and is general there, it is law in such locality ; yet 
 the courts do not take judicial notice of it, therefore it must 
 be proved.^ And whatever its nature, — whether it is local 
 to some place, or relates to a special trade or business, and 
 whether it be deemed law or not, it being duly shown to the 
 court, — the rule is, that, — 
 
 § 572. Effect on Contract. — If, when and where the 
 contract is made, the custom or usage is known to both the 
 parties, either in fact or presumptively from its notorious 
 character, — if it is of a sort applicable to the contract, — 
 if it is legal, as not conflicting with the law or its policy, 
 and is reasonable and uniform, — it will be accepted, like 
 the general law, not in contradiction of written stipulations, 
 but as explaining what is indistinct in them, and furnishing 
 the rule where they are silent.^ Some illustrations of this 
 doctrine will appear in the next chapter. 
 
 ' Bishop First Book, J 64, 55 ; Columbia Bank v. Fitzhugh, 1 Har. & Q. 
 239 ; Branch v. Bumley, 1 Call, 147, 159 ; Cook v. Renick, 19 111. 598. See Watt 
 V. Hoch, 1 Casey, Pa. 411 ; Commonwealth v. Mayloy, 7 Smith, Pa. 291. 
 
 » 1 Saund. PI. & Ev. 3d Am. ed. 899 ; Scales v. Key, 11 A. & E. 819 ; GrifBii 
 V. Blandford, Cowp. 62 ; Parkm v. Eadcliffe, 1 B. & P. 282 ; Winton v. Wilks, 
 2 Ld. Kaym. 1129, 1134, 1135; Kingsmill v. Bull, 9 East, 185; Leuckart v. 
 Cooper, 7 Car. & P. 119. But see Watt v. Hoch, 1 Casey, Pa. 411. 
 
 3 Macomber v. Parker, 13 Pick. 175, 182 ; Columbia Bank v. Fitzhugh, 1 
 Har. & G. 239 ; Walsh v. Mississippi Valley Transp. Co., 52 Misso. 434 ; South- 
 western Freight, etc., Co. v. Stanard, 44 Misso. 71 ; Chenery v. Goodrich, 106 
 Mass. 566 ; TTimlriTia v. Warren, 115 Mass. 514 ; Mears o. Waples, 4 Houston, 
 62 ; Butterworth v. Volkening, 4 Thomp. & C. 650 ; McMasters v. Pennsylvania 
 Railroad, 19 Smith, Pa. 374 ; Appleman v. Fisher, 34 Md. 540 ; Luce v. Dor- 
 chester Mutual Fire Ins. Co., 105 Mass. 297 ; Sullivan v. Thompson, 99 Mass. 
 259; Boardman v. Spooner, 13 Allen, 353; Eaton v. Smith, 20 Pick. 150, 156; 
 
 207 
 
§ 573 LAW or CONTKACTS. 
 
 § 573. The Doctrine of this Chapter restated. 
 
 Law is the atmosphere of life in communities, without 
 which they cannot exist. It surrounds and pervades the 
 whole social fabric. And it furnishes the rule for all trans- 
 actions. But when parties wish to be governed by a 
 different or additional rule, or to render the law's rule 
 distinct and certain, they enter into a contract. By express 
 stipulations, and within certain restrictions, they may thus 
 vary or give shape to the rule of the law. But still, on 
 points where they are silent, the law remains and furnishes 
 the rule ; and, where they speak, it qualifies, contracts, and 
 expands their language by inter^jretation. And they are 
 presumed to mean that this consequence shall follow their 
 express agreement. But a usage or custom is a law local 
 to a particular place or business. Hence, in forming a con- 
 tract, the parties become by implication bound by it, the 
 same as by the general law. Yet no custom, usage, or other 
 law will bind them in opposition to an express stipulation of 
 a sort which the courts hold to be valid. Should the law 
 allow this, it would contradict itself. 
 
 Hursh t). North, 4 "Wright, Pa. 241 ; Thomas v. Graves, 1 Mill, 308 ; Dixon ». 
 Dunham, 14 111. 324; Leach v. Beardslee, 22 Conn. 404; Shaw v. Mitchell, 2 
 Met. 65; Cooper o. Kane, 19 Wend. 386; Holford v. Adams, 2 Duer, 471; 
 Dodd D. Parlow, 11 Allen, 426 ; Tremble v. Crowell, 17 Mich. 493 ; Strong v. 
 Grand Trunk Kailroad, 15 Mich. 206; Hinton D.Locke, 5 Hill, N. T. 437; 
 Jordan o. Meredith, 3 Yeates, 318 ; Alabama, etc.. Railroad u. Kidd, 29 Ala. 
 221 ; Burton v. Blin, 23 Vt. 151 ; Chapman v. Devereux, 32 Vt. 616 ; Knox ». 
 Artman, 3 Rich. 283 ; Holmes v. Johnson, 6 "Wright, Pa. 159 ; Greene v. Tyler, 
 3 "Wright, Pa. 361; Cadwell v. Meek, 17 111. 220; Renner v. Columbia Bank, 
 9 "Wheat. 581 ; Perkins v. Jordan, 35 Maine, 23 ; "Van Ness v. Paoard, 2 Pet. 
 137, 148 ; Gordon v. Little, 8 S. & R. 533 ; Lee v. Kilburn, 8 Gray, 594 ; Soutier 
 V. Kellerman, 18 Misso. 509 ; Munn v. Burch, 25 HI. 35 ; Power v. Kane, 5 
 "Wis. 265; Rindskoffu. Barrett, 14 Iowa, 101; Sanderson v. Columbia Ins. Co., 
 2 Oranch C. C. 218. 
 208 
 
INTEEPKETATION. § 576 
 
 CHAPTER XXX. 
 
 THE INTERPRETATION OF THE CONTRACT. 
 
 2 674. Introduction. 
 
 575-602. Kules to determine the Meaning. 
 
 603-608. Rules to determine the Effect. 
 
 609. Doctrine of the Chapter restated. 
 
 §574. Scope of this Chapter — How divided. — The 
 
 interpretation of a contract is the ascertaining, not only of 
 its verbal meaning, but also of its legal effect. We shall, 
 therefore, consider, I. Eules to determine the Meaning of a 
 Written Contract ; II. Rules to determine the Effect of 
 a Contract, whether written or oral. 
 
 I. Mules to determine the Meaning of a Written Contract. 
 
 § 575. Intent of Parties. — The leading rule is, that a 
 written contract shall be so interpreted as, if possible, to 
 carry out what the parties meant .^ And interpretation is to 
 be resorted to only when the intent is doubtful.^ Hence, — 
 
 § 576. Evidence of Surroundings, etc. — Though the 
 writing cannot be orally contradicted,^ except when it is to 
 be reformed in equity as not expressing what both the 
 
 » Collins V. Lavelle, 44 Vt. 230; Browning v. Wright, 2 B. & P. 13, 26; 
 Hunter v. Miller, 6 B. Monr. 612 ; Wolfe v. Scarborough, 2 Ohio State, 361 ; 
 Higgins V. Wasgatt, 34 Maine, 305. 
 
 " Noyes v. Nichols, 28 Vt. 159 ; Means v. Presbyterian Church , 3 Watts & 
 S. 303. 
 
 ' Ante, 2 58 ; G-lendale Woolen Co. v. Protection Ins. Co., 21 Conn. 19 ; 
 Griswold v. Scott^ 13 Ga. 210 ; Clark v. Lillie, 39 Vt. 405. 
 
 209 
 
 14 
 
§ 578 LAW OF CONTEACT8. 
 
 parties intended, or under equitable rules is to be treated as 
 thus reformed,^ yet the parties' surroundings, their relations 
 to each other, and the like, may be shown as helps to the 
 understanding of their written stipulations.* And — 
 
 § 577. All the Writing — Other Writings. — The entire 
 written instrument, whether upon one piece of paper or on 
 detached pieces referring to one another, and whether con- 
 stituting one contract or several contracts on one subject, 
 executed simultaneously,' or even sometimes when executed 
 on different days, should be looked at in interpreting each 
 particular part.* And — 
 
 § 578, Inaccuracies. — No inaccuracy of language, 
 whether from false grammar, from emplojdng a word in 
 a wrong meaning, omitting a word or even a clause plainly 
 meant to be inserted, inserting a word not meant, using the 
 wrong word, or otherwise, will be permitted to defeat the 
 intent, where it can thus be distinctly ascertained.* Yet, 
 
 > Ante, i 150 ; Greenl. Bv. g 296 a. 
 
 ' 1 Greenl. Ev. J 297; Add. Con. 7th Lond. ed. 164; Maryland v. Railroad, 
 22 Wal. 105 ; Dodge v. Gardiner, 31 N. T. 239 ; Pollard v. Maddox, 28 Ala. 
 321; Sumner v. Williams, 8 Mass. 162, 214; Price v. Evans, 26 Misso. 30; 
 Codman v. Johnson, 104 Mass. 491; Masters v. Freeman, 17 Ohio State, 323; 
 Hutchins v. Hebbard, 34 N. Y. 24 ; Webster v. Blount, 39 Misso. 500 ; Salis- 
 bury V. Andrews, 19 Pick. 250, 253 ; Knight v. New England Worsted Co., 2 
 Cush. 271; Farmers' Loan, etc., Co. v. Commercial Bank, 15 Wis. 424; Wil- 
 liamson V. McClure, 1 Wright, Pa. 402 ; Tracy v. Chicago, 24 111. 600. 
 
 s Ante, 2 59-61. 
 
 * Collins V. Lavelle, 44 Vt. 230; Northumberland «. Errington, 5 T. K. 522, 
 526 ; Hesse v. Stevenson, 3 B. & P. 565 ; Wildman v. Taylor, 4 Ben. 42 ; New 
 Hampshire Bank u. Willard, 10 N. H. 210; Thomas o.' Austin, 4 Barb. 265; 
 Holmes v. Martin, 10 Ga. 503 ; Stover v. Metzgar, 1 Watts & S. 269 ; White- 
 hurst V. Boyd, 8 Ala. 375 ; Casey v. Holmes, 10 Ala. 776 ; Stacey t>. Eandall, 
 17 m. 467 ; Makepeace v. Harvard College, 10 Pick. 298, 302 ; Hunt v. Frost, 4 
 Cush. 54; Craig v. Wells, 1 Kernan, 315; Berry v. Wisdom, 3 Ohio State, 
 241 ; Dibol v. Minott, 9 Iowa, 403 ; Berryman v. Hewit, 6 J. J. Mar. 462 ; 
 Payler v. Homersham, 4 M. & S. 423, 426 ; Morss v. Salisbury, 48 N. T. 636. 
 
 5 Wilson V. Wilson, 5 H. L. Cas. 40, 66; Kelley v. Upton, 5 Duer, 336; 
 
 Thayer v. Lapham, IS Allen, 26 ; Oliver v. Brown, 3 Bur. 1629, 1634, 1635 ; 
 
 Leach v. Micklera, 6 Bast, 486 ; Stockton v. Turner, 7 J. J. Mar. 192 ; De Soto 
 
 V. Dickson, 34 Missis. 150 ; Kincannon v. Carroll, 9 Yerg. 11 ; Pannell o. Mill, 
 
 210 
 
INTEKPKETATION. § 581 
 
 excepting these and other like cases, the general rule is, 
 that — 
 
 § 579. Every Part and Word. — Every clause and even 
 every word of a contract should, when possible, have 
 assigned to it some meaning, and a harmonious whole be 
 made to appear ; for so the parties plainly intended, nor 
 especially would they wilfully insert in their contract a mere 
 idle provision.^ But, — 
 
 § 580. Repugnant. — After efforts at interpretation have 
 failed, what is still found repugnant to the rest may be 
 rejected as surplusage.* Or, — 
 
 § 581. Void for Uncertainty. — If the meaning of the 
 parties cannot be ascertained from the interpreted writ- 
 ing, — and the case is not one of a latent ambiguity, which, 
 being created by oral testimony, may be orally explained,^ — 
 the contract will be void for uncertainty.* 
 
 3 C. B. 625, 638; Salmon Falls Manuf. Co. v. Portsmouth Co., 46 N. H. 249; 
 Fowle V. Bigelow, 10 Mass. 379, 383 ; Saunders v. Hanes, 44 N. T. 358 ; Caldwell 
 ». Layton, 44 Misso. 220 ; Atlanta and West Point Railroad v. Speer, 32 Ga. 
 550 ; Moray v. Homan, 10 Vt. 565 ; Bennehan v. Webb, 6 Ire. 57 ; Iredell v. 
 Barbee, 9 Ire. 250 ; Whitsett v. Womack, 8 Ala. 466. 
 
 • Shelley's Case, 1 Co. 93 a, 95 b ; Heywood v. Heywood, 42 Maine, 229 ; Baron 
 ». Placide, 7 La. An. 229 ; Metcalf v. Taylor, 36 Maine, 28 ; Hydeville Co. v. 
 Eagle Railroad and Slate Co., 44 Vt. 395 ; Churchill v. Reamer, 8 Bush, 256, 
 260 ; Randel v. Chesapeake and Delaware Canal, 1 Harring. Del. 151 ; Buck c. 
 
 .Watkins, 14 Beav. 425; Corbin v. Healy, 20 Pick. 514; Herrick v. Hopkins, 23 
 Maine, 217. 
 
 ' Lambe v. Reaston, 5 Taunt. 207 ; Cooley v- Warren, 53 Misso. 166 ; She- 
 waiter 1^. Pirner, 55 Misso. 218; Wells v. Wright, 2 Mod. 285; Phillips v. 
 Porter, 3 Pike, 18; Eldridge v. See Tup Co., 17 Cal. 44; Gibson v. Bogy, 28 
 Misso. 478 ; Eiherson v. White, 9 Fost. N. H. 482. 
 
 « 1 Greenl. Ev. § 297 ; Cubberly ». Cubberly, 7 Halst. 308 ; McCullough v. 
 Wainright, 2 Harris, Pa. 171 ; Hisoocks v. Hiscocks, 5 M. & W. 363, 368 ; 
 Clark V. Powers, 45 ^1. 283 ; Leonard v. Carter, 16 Wis. 609 ; Murray v. Black- 
 ledge, 71 N. C. 492 ; Bulkeley v. Wilford, 2 Car. &P. 173, 8 D. & R. 549. 
 
 • Garnett v. Garnett, 7 T. B. Monr. 545; Grand Gulf Railroad and Banking 
 Co. V. Bryan, 8 Sm. & M. 234 ; Winslow v. Winslow, 52 Ind. 8 ; Church, etc.^ 
 Soc. V. Hatch, 48 N. H. 393 ; Kleinpeter v. Harrigan, 21 La. An. 196 ; Tolhurst 
 V. BricMnden, Cro. Jac. 250; Webster v. Bla, 5 N. H. 540; Price v. Griffith, 
 15 Jur. 1093; Brooklyn Life Ins. Co. v. Bledsoe, 52 Ala. 538; Buokmaster v. 
 Consumers' Ice Co., 5 Daly, 313 ; ante, | 22. 
 
 211 
 
§ 585 LAW OF CONTRACTS 
 
 § 582. Uphold the Transaction. — It follows from the 
 foregoing views, that, if possible, the contract must be so 
 construed as to render it operative, and effectual to carry 
 out the purpose of the parties, instead of being void.^ 
 Thus, — 
 
 § 583. liawftU. — If the terms admit of two meamngs, 
 or of having effect in two ways, by one of which the thing 
 would be unlawful and by the other lawful, the latter con- 
 struction must be adopted.^ For illustration, — 
 
 § 584. Statutory Bond. — If a statutory bond has matter 
 which the statute does not authorize, this will be rejected 
 as surplusage to make it good.' And an instrument meant 
 to be a statutory bond, yet void as such for not conforming 
 to the statute,* may take effect as a valid bond at the com- 
 mon law.^ Again, — 
 
 § 585. Imperfect Deed. — If an instrument in the form 
 of a deed of land cannot take effect as such for the want of 
 a seal, or from lack of due authority in an agent executing 
 it to affix the seal, or from the nature of the interest which 
 it attempts to convey, or from not being recorded and it is 
 lost, or from any other like cause, it may be construed as 
 an agreement to. convey, where there is no obstacle to its 
 going into operation as such agreement.® 
 
 1 Ante, 2 282; Pray v. Pierce, 7 Mass. 381, 384; Marshall u. Fisk, 6 Mass. 
 24, 32; Eeilly v. Chouquette, 18 Misso. 220; Milbourn v. Simpson, 2 Wils. 22; 
 Thrall v. Newell, 19 Vt. 202 ; Anderson v. Baughman, 7 Mich. 69 ; Gano v. Ald- 
 ridge, 27 Ind. 294. 
 
 ' Merrill ti. Melchior, 30 Missis. 516 ; Crittenden v. French, 21 HI. 598. 
 
 ' Hall V. Gushing, 9 Pick. 394, 404; United States v. , 1 Brock. 195; 
 
 Dixon V. United States, 1 Brock. 177; "Walker v. Chapman, 22 Ala. 116. 
 Woods V. The State, 10 Misso. 698 ; Shunk v. Miller, 5 Barr, 250. 
 
 * Lawton v. The State, 5 Texas, 272. 
 
 ' Lane v. Kasey, 1 Met. Ky. 410 ; Eowlet v. Eubank, 1 Bush, 477 ; Gathwright 
 V. Callaway, 10 Misso. 663; Hester v. Keith, 1 Ala. 316; Burroughs v. Lowder, 
 8 Mass. 878. 
 
 * McCaleb v. Pradat, 25 Missis. 257 ; Bayler v. Commonwealth, 4 Wright, 
 Pa. 37; Porter «. Bead, 19 Maine, 363; Blight v. Banks, 6 T. B. Monr. 192 
 Cummings v. Coe, 10 Cal. 629; Yarick v. Edwards, Hoffman, 382; Johnson 
 V. Houghton, 19 Ind. 359. 
 
 212 
 
INTERPRETATION. - § 589 
 
 § 586. The Subject. — The subject of the contract, and 
 the nature of the transaction, should be considered ; and, 
 in some circumstances, they will influence the interpreta- 
 tion,^ Thus, — 
 
 § 587. Words of Inheritance, or not. — A deed of land 
 will in general convey a fee only when it runs to the grantee 
 and his " heirs ;"^ but it is otherwise with an executory 
 agreement, which may bind the party to convey a fee though 
 the word heirs is not employed.** 
 
 § 588. Keasonable and Just. — The court will endeavor 
 to give to the contract a construction which shall make it 
 reasonable and just.* Hence, — 
 
 § 589. Mutual Promises — (Dependent or Independent). 
 Where it consists of mutual promises, the promise on the one 
 side being the consideration for that on the other ,^ the court 
 will incline to the construction which renders them depend- 
 ent, rather than independent, so that neither party can sue the 
 other unless himself ready to perform ; because the contrary 
 would be neither reasonable nor just.® But this rule, like 
 all others, must yield to the real intention of the parties 
 when it is apparent, and to the nature of their agreement.' 
 
 ■^ Robinson v. Fiske, 25 Maine, 401; Higgins u. "Wasgatt, 34 Maine, 305; 
 Phelps V. Bostwick, 22 Barb. 314. 
 
 ^ Hogan V. Welcker, 14 Misso. 177 ; Martin v. Long, 3 Misso. 391. 
 
 ' Bodley v. Ferguson, 30 Cal. 511 ; Gaule v. Bilyeau, 1 Casey, Pa. 521 ; 
 Defraunce v. Brooks, 8 Watts & S. 67; Bower v. Cooper, 2 Haie, 408. 
 
 * Halloway v. Lacy, 4 Humph. 468; Baron v. Placide, 7 La. An. 229; Bicfc- 
 ford V. Cooper, 5 Wright, Pa. 142 ; Boyalton v. Boyalton, etc., Turnpike, 14 
 Vt. 311. 
 
 5 Ante, 2 428-431. 
 
 « Mecum v. Peoria, etc.. Railroad, 21 HI. 533; Peques ■«. Mosby, 7 Sm. & 
 M. 340 ; Liddell v. Sims, 9 Sm. & M. 596 ; Clopton v. Bolton, 23 Missis. 78. 
 
 ' Pordage v. Cole, 1 Saund. Wms. ed. 319 1, and the notes ; ' McCrelish v. 
 Churchman, 4 Rawle, 26 ; Tileston v. Newell, 13 Mass. 406, 411 ; Johnson v. 
 Eeed, 9 Mass. 78 ; Howland v. Leach, 11 Pick. 151, 154 ; Gardiner v. Carson, 15 
 Mass. 500 ; Bean v. Atwater, 4 Conn. 3 ; Todd v. Summers, 2 G-rat. 167 ; Evans 
 V. Pegely, 17 Smith, Pa. 370 ; Kunkle v. Johnson, 80 111. 328 ; Gillum v. Dennis, 
 4 Ind. 417 ; Sewall v. Wilkins, 14 Maine, 168 ; Hutchings v. Moore, 4 Met. Ky. 
 
 213 
 
§ 594 LAW OF CONTRACTS. 
 
 § 590. Meaning of the Words. — The language and terms 
 of the contract will be understood in the ordinary, popular 
 sense ;^ unless they relate to some technical subject, — as, 
 a particular trade or science, the law, or a custom, — in 
 which case their technical meaning will be given them.^ 
 
 § 591. Grammatical Construction — Punctuation. — 
 Nor will the strict grammatical construction, or the punc- 
 tuation, ever prevail over the evident intent of the parties.* 
 
 § 592. Technical or not. — Where technical words are 
 proper, still a contract without them is, if plain in meaning, 
 equally valid.* 
 
 § 593. General and specific. — Words and phrases of 
 wider import are restrained by those of narrower, and the 
 more general by those which are specific and exact, where 
 all cannot stand together in their proper significations, but 
 not where all can ; unless the plain intent of the parties 
 requires a difierent construction.* Thus, — 
 
 § 594. Description of Land conveyed. — If land in a 
 deed is described by metes and bounds, or by other visible 
 objects, they, being specific and exact, will restrain and 
 
 110; Kettle v. Harvey, 21 Vt. 301; Booth «. Tyson, 15 Vt. 515; Stangbury v. 
 rringer, 11 Gill & J. 149. 
 
 ' Hawes v. Smith, 3 Fairf. 429 ; Mansfield, etc., Kailroad v. Veeder, 17 Ohio, 
 385. 
 
 " Pindley v. Pindley, 11 Grat. 434 ; Kindskoff v. Barrett, 14 Iowa, 101 ; Bogera 
 V. Danforth, 1 Stock. 289 ; MoAvoy v. Long, 13 111. 147 ; Wayne i;. The General 
 Pike, 16 Ohio, 421; Eaton v. Smith, 20 Pick. 150; Bllmaker v. Ellmaker, 4 
 Watts, 89 ; Eobinson v. Piske, 25 Maine, 401. 
 
 » Morey v. Homan, 10 Vt. 565 ; Nettleton i>. Billings, 13 N. H. 446 ; English 
 o. McNair, 34 Ala. 40; White v. Smith, 9*T^y, Pa. 186; Ewingu. Burnet, 11 
 Pet. 41 ; Reeves v. Topping, 1 Wend. 388; Hancock v. Watson, 18 Cal. 137. 
 
 * Barney v. Worthington, 37 N. Y. 112 ; Chesapeake, etc., Canal v. Balti- 
 more, etc., Railroad, 4 Gill & J. 1; Levering v. Levering, 13 N. H. 513; 
 Polhemijs v. Heimau, 45 Cal. 573. 
 
 » Browning v. Wright, 2 B. P. 13 ; Hesse o. Stevenson, 3 B. & P. 565 ; Barton 
 
 V. Fitzgerald, 15 East, 530; Holmes v. Martin, 10 Gt&. 503; Heywood v. Hey- 
 
 wood, 42 Maine, 229 ; Field v. Huston, 21 Maine, 69 ; Moore v. GriflSn, 22 Maine, 
 
 850 ; Huntington v. Havens, 5 Johns. Ch. 23 ; Herrick v. Hopkins, 23 Maine, 217. 
 
 214 
 
INTERPRETATION. § 599 
 
 control all words of general description.^ Yet even this 
 rule may perhaps yield to others in a particular instance ; 
 for no one rule is universally supreme over all.'' And — 
 
 § 595. General after Particular. — A sweeping clause, 
 foUowing a specific enumeration, will generally be restricted 
 by interpretation to things of a like sort with those enume- 
 rated.' 
 
 § 596. Derogation of Law. — Terms in a contract in 
 derogation of law — that is, establishing for the particular 
 instance a rule contrary to what the law would provide — 
 are construed strictly.* For instance, — 
 
 § 597. Liimituig Carrier's Liability. — It is so when a 
 common carrier undertakes to limit his liability by a special 
 agreement with the party ; he can claim nothing beyond 
 what is plainly within the words.* 
 
 § 598. Parties' Interpretation. — In a doubtful case, 
 the interpretation which the parties themselves have, by 
 -their conduct, practically given their contract, will pre- 
 vail.^ 
 
 § 599. Written and Printed. — If the contract is made 
 from a printed blank, the printed matter is as much a part 
 
 1 Emery v. Fowler, 38 Maine, 99 ; Bosworth c. Sturtevant, 2 Cush. 392 ; 
 Dawes v. Prentice, 16 Pick. 435 ; Butler v. "Widger, 7 Cow. 723 ; "Whiting v. 
 Dewey, 15 Pick. 428 ; Dalton v. Rust, 22 Texas, 133 ; Kicliardson v. Chicker- 
 ing, 41 N. H. 380; Blasdell v. Bissell, 6 Barr, 258. 
 
 s Hamilton v. Foster, 45 Maine, 32; Sawyer v. Kendall, 10 Cush. 241, 246; 
 Bradford v. Pitts, 2 Mill, 115. 
 
 ' Anonymous, Lofft, 398 ; Pollock Con. 409, referring to Kooke v. Kensing^ 
 ton, 2 Kay & J. 753, 771 ; and Bulkley v. Wilford, 8 D. & R. 549. 
 
 * Duflef V. Boykin, 9 La. An. 295 ; Delaware, etc.. Tow-boat Co. v. Starrs, 
 19 Smith, Pa. 36. 
 
 * Menzell v. Railway, 1 Dillon, 531 ; Baltimore, etc.. Railroad v. Brady, 32 
 Md. 333 ; Lamb v. Camden, etc.. Railway, 46 N. T. 271 ; The City of Norwich, 
 4 Ben. 271. 
 
 ^ French v. Pearce, 8 Conn. 439 ; Jakeway v. Barrett, 38 Vt. 316 ; Chicago 
 V. Sheldon, 9 Wal. 50, 54; Parrar v. Rowly, 2 La. An. 475; D'Aquin v. 
 Barbour, 4 La. An. 441; Casey v. Pennoyer, 6 L. An. 776; Coleman ». 
 Grubb, 11 Harris, Pa. 393. See Dunn v. Mobile Bank, 2 Ala. 152 ; Hutchings 
 V. Dixon, 11 Md. 29. 
 
 215 
 
§ 602 LAW OF CONTEACTS. 
 
 of it as the written ;^ still, where printed and written Words 
 conflict, the latter will prevail." 
 
 § 600. Grrantor's "Words. — Another rule, not of much 
 importance, but resorted to when all other means of inter- 
 pretation fail,^ is, that, in a deed-poll, or other writing of 
 the like sort, the words shall be taken in their strict 
 sense against the grantor, or him who employs them, and 
 liberally in favor of the other party.* This rule is, by 
 perhaps the better authorities, not applicable to indentures 
 and simple contracts in like form; "because," in them, 
 "the law makes each party privy to the speech of the 
 other." ^ But, by other authorities, the rule seems to be 
 applicable equally to them.* 
 
 § 601. Made certain. — In all cases the maxim applies, 
 that what can be made certain is certain ; as, though a 
 deed to the "heirs" of a living person is void, because 
 there can be no heirs until the ancestor dies ; ' yet a deed 
 may be valid to the heirs of a person deceased, for now 
 there are heirs, and, though not named, they can be ascer- 
 tained.* So a conveyance to a living person's " children " 
 is good, if, on enquiry, such person is ascertained to have 
 children.' Another universal rule is, that, — 
 
 § 602. Know the Law. — In, the interpretation of every 
 contract, the parties are conclusively presumed to know the 
 
 > "Wallwork v. Derby, 40 lU. 527. 
 
 ' Hernandez v. Sun Mutual Ins. Co., 6 Blateh. 317 ; American Express Co. 
 ^. Pinckney, 29 111. 392 ; Howard Pire Ins. Co. v. Bruner, 11 Harris, Pa. 50. 
 
 » Palley v. Giles, 29 Ind. 114. 
 
 * Green's Case, 1 Leon. 218 ; Drinkwater v. London Assurance Co., 2 "Wilj. 
 363; Beeson v. Patterson, 12 Casey, Pa. 24; Bennehan v. Webb, 6 Ire. 57; 
 Wells V. Pacific Ins. Co., 44 Cal. 397 ; Aurora, etc., Ins. Co. t>. Eddy, 49 HI. 
 106; Winslow v. Patten, 34 Maine, 25; Salisbury ». Andrews, 19 Pick. 250, 
 253. 
 
 ^ Staunford and Walsh in Browning v. Beston, 1 Plow. 131, 134 ; Say's Case, 
 10 Mod. 40, 47; Met. Con. 312. 
 
 6 1 Chit. Con. 11th Am. ed. 136 ; Browning v. Wright, 2 B. & P. 13, 22. 
 
 ' Winslow V. Winslow, 52 Ind. 8. 
 
 ° Shaw V. Loud, 12 Mass. 447 ; Boone v. Moore, 14 Misso. 420. 
 
 ' Hamilton v. Pitcher, 53 Misso. 334. And see Adams v. King, 16 HI. 169. 
 216 
 
INTERPRETATION. § 605 
 
 law, and a construction based on the assumption of their 
 ignorance of it, or of the effect of their language, is never 
 permitted .1 They are bound by whatever terms they volun- 
 tarily employ.^ 
 
 n. Rules to determine the Effect of a Contract, 
 
 § 603. Governed by Law, Custom, Usage. — The most 
 important proposition under this head appears in the eluci- 
 dations of the last chapter ; namely, that an express contract 
 merely qualifies, alters, or affirms the law, custom, or usage 
 otherwise governing the parties, or brings them within the 
 same, which still remains their rule of action and responsi- 
 bility in all other respects.^ Thus, — 
 
 § 604. Promissory Note. — If one executes a promissory 
 note, he brings himself within the law-merchant governing 
 this species of contract : as, for example, he maybe required 
 to pay it to any person to whom it is lawfully transferred,* 
 and he is entitled to the customary days of grace.® But, — 
 
 § 605. Common Carrier. — If a common carrier, in 
 words corresponding to those which constitute a promissory 
 note, undertakes to deliver to the order of another a package 
 of merchandise which he receives, he incurs a different sort 
 of liability. No days of grace are allowed him , but the work 
 must be promptly done ; ^ and any right of action against 
 him is, not in one to whom his promise has been assigned, 
 but in the consignor, or consignee, or person acting for the 
 
 ' Boner o. Mahle, 3 La. An. 600. 
 
 ' Strobecker v. Farmers' Bank, 6 Barr, 41 ; Holmes v. Hall, 8 Mich. 66 ; 
 Furbush v. Goodwin, 5 Eost. N. H. 425. 
 
 » Ante, \ 568, 570-572, 596. 
 
 •■ Fleckner w. United States Bank, 8 Wbeat. 338 ; Guild v. Eager, 17 Mass. 
 615; Harlow o. Boswell, 15111. 56; Holeman ». Hobson, 8 Humph. 127. 
 
 6 Craft ». State Bank, 7 Ind. 219 ; Wood v. Corl, 4 Met. 203. 
 
 6 Scovill u. Griffith, 2 Kern. 509, 515 ; Price u. Hartshorn, 44 Barb. 655 ; 
 Smith V. Whitman, 13 Misso. 352 ; Nettles v. South Carolina Eailroad, 7 Rich. 
 190: Cleveland, etc., Eailroad v. Perkins, 17 Mich. 296; Philleo v. Sanford, 17 
 Texas, 227. 
 
 217 
 
§ 609 LAW OF CONTRACTS. 
 
 one or the other, as determined by the principles governing 
 ordinary contracts.^ His obligations are fixed by the law 
 applicable to him.''' For example, he is the insurer of the 
 goods in his care against fire, robbery, other thefts, and all 
 casualties short of those which proceed from the act of God 
 or the public enemy, as will be explained further on,^ though 
 not a word on the siibject has passed between him and the 
 owner.* In like manner, — 
 
 § 606. Insurance. — An insurance policy, especially of 
 marine insurance, is but an imperfect guide to the real con- 
 tract between the insurer and the insured. Very much 
 depends on usage and special rules of law.* And, — 
 
 § 607. In General. — In carrying into effect every sort 
 of contract, the courts, after determining its meaning, are 
 compelled to consider also and be guided by such lawful 
 usages and customs as are shown in connection with it, and 
 the law applicable to the particular case. In few instances, 
 if any, do the mere interpreted words furnish the sole rule. 
 Hence, — 
 
 § 608. Implied. — In all contracts, there is something 
 implied, as well as something expressed. But this matter 
 has already been considered.® 
 
 § 609. The Doctrines of this Chapter restated. 
 
 In language, written or spoken, various meanings and 
 shades of meaning are given to words, to be determined by 
 
 ' Sanford v. Housatonic Railroad, 11 Cush. 155; Price v. Powell, 3 OomsL 
 322 ; Stimpson v. Gilchrist, 1 Greenl. 202 ; D'Anjou v. Deagle, 3 Har. & J. 
 206; Elliins v. Boston, etc., Railroad, 19 N. H. 337; Green v. Clark, 13 
 Barb. 57. 
 
 « Thurman ti. "Wells, 18 Barb. 500; Hooper d. "Wells, 27 Cal. 11. 
 
 s Post, 2 612, 614. 
 
 * 2 Kent Com. 597; Graff u. Bloomer, 9 Barr, 114; £lauber t>. American 
 Express, 21 "Wis. 21 ; Joyce v. Kennard, Law Eep. 7 Q. B. 78. 
 
 6 See, for example, Kankin «. Potter, Law Kep. 6 H. L. 83, 101, 110, 155 j 
 Parkhurst v. Gloucester Mutual Fishing Ins. Co., 100 Mass. 301. 
 
 « Ante, 2 67-106, 345-351. 
 218 
 
INTERPRETATION. § 609 
 
 their connection with other words, by the place they occupy 
 in the sentence, by the subject under discussion, and by 
 some other minor considerations. And, if this were not 
 allowable, even Infinite Wisdom could not construct any lan- 
 guage sufficiently voluminous, yet comprehensible by men, 
 to serve as a vehicle for their ever-changing and still pro- 
 gressing thoughts. It is by taking advantage of these 
 varying meanings, effected by unlimited diversities of com- 
 bination, that we are able to convey new ideas ; and, but 
 for this, no fresh form of thought could be expressed. It 
 is, therefore, neither desirable nor possible that every word 
 should have one only established meaning. In the law, a 
 few words have such meanings, when employed to convey 
 legal ideas ; but this is not the general rule, even in the 
 law. Now, — 
 
 These views will furnish the key to all verbal interpreta- 
 tion of contracts ; it being borne in mind that the object of 
 interpretation is simply to ascertain what the parties meant. 
 The only rule, strictly technical, governing this subject is, 
 that, when the contract is in writing, the written words are 
 not to be expanded or qualified by any oral expressions, but 
 the intent of the parties is to be drawn from them alone, 
 examined in connection with the surroundings, the subject, 
 and the laws of the language. Some rUles, as the reader 
 has seen, have been established in subordination to this rule, 
 and in aid of it ; but they are not carried to the extent of 
 subverting what, the court can discern, the parties really 
 meant. 
 
 The legal eflfect of an interpreted contract will depend on 
 the particular laws and customs governing the subject to 
 which it relates. 
 
 219 
 
§ 612 JjAW op CONTRAC3T8. 
 
 CHAPTEE XXXI. 
 
 IMPOSSIBILiriES CONNECTED WITH THE CONTEACT. 
 
 § 610. Authorities and Dicta. — On the subject of this 
 chapter, the adjudications are at some points in discord, 
 quite beyond the possibility of reconciliation. And not 
 unfrequently there is a want of harmony between the lan- 
 guage of judges and their actual decisions, of which they 
 appear to be themselves unconscious. It would not comport 
 with the plan of this work to discuss these differences at 
 length ; hence the only practical method will be to lay down 
 such leading doctrines as are best sustained by the combined 
 force of authority and principle. 
 
 § 611. Impossibility known when Contract made. — If 
 parties agree to do an impossible thing, knowing it to be 
 such, this is a vain and idle act, destitute of the essential 
 elements of a contract. And though it is perhaps not to 
 be deemed void as contrary to law,^ which it does not seem 
 strictly to be, yet to take jurisdiction of it would be beneath 
 the dignity of any court.^ Therefore the doctrine of the 
 common law always has been, and still is, that every such 
 contract is void.^ But, — 
 
 § 612. Nature of the Impossibility. — Between the im- 
 possibility here and elsewhere in this chapter spoken of, 
 
 » Ante, I 458, 465, 466. 
 
 ' Compare ■with ante, J 489. 
 
 ' 1 Britton, Nioh. ed. 158, 239 ; Nerot v. ■Wallace, 3 T. E. 17, 22 ; Met. Con. 
 211; 1 Chit. Con. llth Am. ed. 64; 2 lb. 1073. See Gilmer v. Gilmer, 42 
 Ala. 9. 
 
 220 
 
IMPOSSIBILITIES. § 613 
 
 and an inconvenience, there is a wide distinction ; for a man 
 may bind himself to what it is inconvenient for him to do, 
 or even to what may prove to be beyond his capacity.^ The 
 impossibility must be such, and such only, as, in the lan- 
 guage of the books, proceeds from "the act of God or the 
 king's enemies." 2 The meaning of this is, some manifesta- 
 tion of nature to which man has not contributed and which 
 he cannot overcome, such as lightning and the fire it kindles 
 or a tempest, but not a fire from an ordinary accident ;^ or, 
 the ravages or restraints of war, but not of a robber or a 
 mob.* We shall see further illustrations of the distinction 
 as we proceed. 
 
 § 613. Legal Duty becoming: Impossible. — If one is 
 under a duty created by law, and then the doing of the thing 
 becomes in the sense just explained impossible, he is ex- 
 cused ; * for no man can be required to contend successfully 
 with the Almighty, or in his private capacity to overcome 
 
 ' Butler's note to Co. Lit 206 a; Dermott v. Jones, 2 Wal. 1; Eeid v. Ed- 
 wards, 7 Port. 508; The Harriman, 9 Wal. 161; Stone v. Dennis, 3 Port. 231. 
 
 ' Jonea Bailm. Am. ed. of 1807, p. 120. 
 
 ' Nichols ». Marsland, Law Rep. 10 Ex. 255; Chicago, etc., Bailroad v. 
 Sawyer, 69 111. 285; Price v. Hartshorn, 44 N. T. 94; Forward v. Pittard, 1 
 T. B. 27; Brousseau v. Hudson, 11 La. An. 427 ; Alsept v. Byles, 2 H. BL 
 108, 113 ; Trent Navigation v. "Wood, 8 Esp. 127 ; Rex ». Somerset, 8 T. R. 312 j 
 Amies v. Stevens, 1 Stra. 128 ; Bird v. Astcock, 2 Bulst. 280 ; Mouse's Case, 
 12 Co. 63. "The books generally mention a promise to go from London 
 to Rome in three hours, as a promise that would be void because impossible 
 to be performed." Met. Con. 214. The impediment in this case, the reader 
 perceives, is an "act of God," within our definition; it is Inherent in the 
 nature which God has given to man, rendering such rapidity of locomotion 
 impossible to any one; or, in the language of our definition, it is a "man- 
 ifestation of nature to which man has not contributed, and which he cannot 
 overcome." 
 
 * Forward v. Pittard, supra, at p. 34; Elliott v. Norfolk, 4 T. R. 789; Trent 
 Navigation v. Wood, supra ; Gordon v. Eimmington, 1 Camp. 123 ; Sugarman 
 V. The State, 28 Ark. 142. , 
 
 « Mosely ». Baker, 2 Sneed, Tenn. 362 ; Rex t>. Somerset, 8 T. R. 312 ; Nichols 
 II. Marsland, Law Rep. 10 Ex. 255; Cassady v. Clarke, 2 Eng. 123; Eylands v. 
 Fletcher, Law Rep. 3 H. L. 330, 340, 342. 
 
 221 
 
§ 616 LAW OF CONTRACTS. 
 
 the public enemy. All the authorities affirm this. For 
 example, — 
 
 § 614. Common Carrier. — The law, by implication from 
 the contract of a common carrier, casts upon him the duty 
 to carry the goods safely. If they are destroyed by fire, he 
 is responsible.^ But if their destruction is caused by the 
 act of God or of a public enemy, and he is himself using 
 due diligence to preserve them and carry them in safety," 
 he is excused,' while no obstacles short of these will suffice.* 
 On the other hand, — 
 
 § 615. Performance of Express Contract Impossible. — 
 The books contain numerous dicta of judges and text 
 writers to the effect, that, though the act of God or of a 
 public enemy will justify the non-performance of a duty 
 created by law, or implied from a contract, it will furnish no 
 excuse for not fulfilling the terms of an express stipulation." 
 But not many of the cases sustain this distinction in actual 
 adjudication, however they may^in dicta, though doubtless 
 some do. Thus, — 
 
 § 616. Destroyed by Fire. — On the strength of this 
 assumed distinction, it has been held, that, if one promises 
 to build a house on land of another ; and , before the house is 
 completed, it is consumed by fire ; he is not therefore 
 released from his contract.^ And plainly this result is s'o, 
 yet plainly this reasoning is unsound; because the fire is 
 the act neither of God nor of the public enemy ,^ and, if it 
 
 » Ante, g 605; Forward v. Pittard, 1 T. K. 27. 
 
 ' HoUaday v. Kennard, 12 Wal. 254. 
 
 ' Southern Express v. Womack, 1 Heisk. 256; Strohn v. Detroit, etc., Rail- 
 road, 23 Wis. 126; Lewis v. Ludwick, 6 Coldw. 868; "Wallace v. Sanders, 42 
 Ga. 486. 
 
 * Illinois Central Railroad v. McClellan, 54 Dl. 58, 70. 
 
 * Cassady v. Clarke, 2 Eng. 123 ; Clancy v. Overman, 1 Dev. & Bat 402 ; 
 School District v. Dauchy, 25 Conn. 530. 
 
 « Adams v. Nichols, 19 Pick. 275. See Boyle v. Agawam Canal, 22 Pick, 
 381 ; Dermott v. Jones, 2 Wal. 1. 
 ' Ante, 2 612. 
 222 
 
IMPOSSIBILITIES. § 619 
 
 was, still another house would answer the contract equally 
 well, so that the fire did not compel the non-fulfilment of 
 what was agreed. Again, — 
 
 § 617. Ijease, etc. — It is held, that, if a man takes a 
 lease of a house and land, and then he is driven oflf by the 
 public enemy, or the house is destroyed by the act 6f God, 
 he is not released from his covenant to pay rent.^ And, for 
 this sound rule of law, there are two excellent reasons : first, 
 the lease creates a vested estate in the realty, and the 
 covenant to pay rent simply specifies by what instalments 
 the consideration is to be given ; ^ secondly, the act of God 
 interfered in no manner with paying the money, it did a 
 thing entirely different. Yet, — 
 
 § 618. Failure of Consideration. — If the consideration 
 for a promise fails through the act of God, this will discharge 
 the promisor ; as, where one agreed to pay a sum for tuition 
 during a specified quarter, but was sick, the court refused 
 to enforce the payment. The sickness, which in law is the 
 act of God, did not prevent the performance of the 
 promisee's part, but it took away the foundation for the 
 promise.* 
 
 § 619. True Doctrine — Performance of Contract ^Ex- 
 cused. — The true doctrine of the law, therefore, deducible 
 both from reason and from all but a few of the actual deter- 
 minations of the courts, is, that the act of God or of a 
 public enemy will excuse the performance of an express 
 contract, the same as all admit that it will of an implied 
 promise or of a duty created by law.* Thus, — 
 
 » 4 Kent Com. 465-467 ; 1 Chit. Con. 11th Am. ed. 1074. 
 
 ' See, as illustrative, Calloway v. Hamby, 65 N. C. 631 ; "Wilkinaon v. Oook, 
 44 Missis. 367 ; Dowdy v. McLellan, 52 Ga. 408. 
 
 ' Stewart v. Loring, 5 Allen, 306. See Anglo-Egyptian Nav. Co. ». Bennie, 
 Law Kep. 10 C. P. 271. 
 
 * Morrow v. Campbell, 7 Port. 41 ; The Eliza, Daveis, D. C. 316 ; Miller v. 
 Phillips, 7 Casey, Pa. 218 ; Brown t>. Dillahunty, 4 Sm. & M. 713 ; Crawford 
 c. Hamilton, 3 Madd. 251, 254; Selden v. Preston, 11 Bush, 191. See Ide v. 
 Faasett, 45 Vt. 68. 
 
 223 
 
§ 623 LAW OF CONTEACTS. 
 
 § 620. Personal Services, Apprenticeship, etc. — If one 
 
 stipulates to serve another in person, or to do a thing which 
 cannot be done by proxy, and by the act of God in the form 
 of sickness or death he is prevented from doing it, no action 
 can be maintained against him or his administrator as for a 
 breach of contract.^ A contract of apprenticeship is a 
 familiar illustration of this." And the death of the master 
 or employer terminates the obligation, the same as of the 
 apprentice or the employed.^ Again, — 
 
 § 621. Appearance Bond. — If one becomes bound for 
 the appearance of an arrested person in court, and before 
 the day the person dies, performance is excused by this act 
 of God.* On the other hand, — 
 
 § 622. By Proxy. — Where one undertakes to ^o what 
 can be done by others who may be employed, — as, for 
 example, the carpenter work of a house, — personal inability 
 from sickness does not render the doing impossible, and he 
 is not excused.* And it is the same if he dies, where the 
 contract is of a sort which may be carried out by his per- 
 sonal representatives ; they must fulfil, or respond in 
 damages.* But, — 
 
 § 623. Sickness deterring Workmen. — If, at the place 
 where a contract for labor is to be performed, there prevails, 
 during the entire period, a fatal and contagious disease, 
 rendering it imprudent for a man to work there and conse- 
 quently impossible to procure suitable help, this will dis- 
 charge the party from the duty to perform. And if, before 
 
 > Knight V. Bean, 22 Maine, 531 ; Bobinson v. Davison, Law Rep. 6 Ex. 269; 
 Stubbs V. Holywell Railway, Law Bep. 2 Ex. 311 ; Poussard v. Spiers, 1 Q. B. 
 D. 410, 414. 
 
 ^ Boast 1). Eirth, Law Bep. 4 C. P. 1. And see Davenport v. Gentry, 9 B. 
 Monr. 427. 
 
 " Whincup V. Hughes, Law Bep. 6 C. P. 78 ; Farrow v. Wilson, Law Bep. 4 
 C. P. 744. See Martin v. Hunt, 1 Allen, 418 ; Hayes v. "Willio, 4 Daly, 259. 
 
 * Scully II. Kirkpatrick, 29 Smith, Pa. 324. 
 
 ' Caasady v. Clarke, 2 Eng. 123. 
 
 « Hawkins ■!). Ball, 18 B. Monr. 816. 
 224 
 
IMPOSSIBILITIES. ' § 626 
 
 the contagion came, he did a part of the work, he may 
 recover pay for it on a quantum meruit} 
 
 § 624. Assuming Besponsibility for the Inevitable. — 
 
 Obviously, and within doctrines already stated,^ an express 
 agreement to pay any damage arising from the act of God 
 or a public enemy is valid. A familiar illustration is a 
 policy of marine insurance, wherein the underwriter promises 
 to compensate the owner in money for damages from " perils 
 of the sea," which are construed to include a tempest.' 
 This sort of contract is every day enforced in our courts.* 
 The true distinction is, that, — 
 
 § 625. Distinction. — If the promise is to do a thing, 
 and then the act of God or the public enemy interposes, 
 rendering the doing, not merely inconvenient, but impossi- 
 ble, the promisor is not compellable to respond in damages. 
 But, if the undertaking is to answer in damages, — or, in 
 the alternative, either to do or to answer in damages,® — 
 this may be enforced. In some of the cases, by what would 
 seem to be an oversight, the distinction thus stated has not 
 been observed, and defendants have been compelled to pay 
 money because they could not contend successfully with 
 the Almighty or with the public enemy.* 
 
 §626, Great Inconvenience. — Great inconvenience, 
 therefore, is not a valid excuse for non-performance.^ 
 And, — 
 
 ' Lsikemau v. Pollard, 43 Maine, 463. And see Sickles v. United States, 1 
 Ct. CI. 214. 
 
 » Ante, I 616, 617. 
 
 » Ante, 1 612. 
 
 * Taylor v. Dunbar, Law Kep. 4 C. P. 206 ; Baker v. Manufacturers' Ins. Co., 
 12 Gray, 603 ; Fleming v. Marine Ins. Co., 4 "Whart. 59. 
 
 6 See post, g 478. 
 
 ' See, and compare, Crawford v. Hamilton, 3 Madd. 250, 254; Howell v, 
 Coupland, 1 Q. B. D. 258 ; Booth v. Spuyten Duyvil EoUingMill Co., 3 Thomp. 
 & C. 368; Bryan v. Spurgin, 5 Sneed, Tenn. 681 ; "West v. The Uncle Sam, 1 
 Mc Al. 505 ; Jemison v. McDaniel, 25 Missis. 83 ; Hore v. Whitmore, Cowp. 784. 
 
 ' Duncan v. Gibson, 45 Misso. 352; Lomis v. Ruetter, 9 "Watts, 516; Huling 
 V. Craig, Addison, 342; Anspach v. Bast, 2 Smith, Pa. 356; Cobb v. Harmon, 
 23 N. Y. 148; Dodge v. Van Lear, 5 Cranoh C. C. 278. 
 
 16 ■ 225 
 
§ 630 LAW OF CONTRACTS. 
 
 § 627. Substantial Performance. — If there may be a 
 substantial performance, though not in the exact terms of 
 the contract, this will be required.' And where the under- 
 taking is to do one of two things, the impossibility of doing 
 the one does not excuse the doing of the other .** 
 
 § 628. Performance forbidden by Law. — In a previous 
 chapter,^ we saw that a contract forbidden by law is void, 
 and something was said of the effect of a statute making 
 performance illegal. And it is within the doctrine of that 
 chapter to add, that, if a contract is lawful when made, but 
 it becomes unlawful afterward, — as, for example, through 
 a new statute, — this is an impossibility which, like the act 
 of God, excuses performance.* So — 
 
 § 629. Prevented by Judicial Process. — A process from 
 court, interrupting and rendering impossible the doing of 
 the thing, will fiimish the like excuse.® 
 
 § 630. Conditions. — Conditions in contracts are either 
 precedent or subsequent. But whether a condition is the 
 one or the other, if it is impossible, yet not otherwise 
 unlawful, when the contract is made, it, only, is void ; and 
 the rest of the contract takes effect, or is enforceable, as 
 though it contained no condition.* Yet if a condition pre- 
 cedent is not known to be impossible when the contract is 
 made, and it becomes impossible by the act of God, still 
 the other party cannot be placed in default while the con- 
 dition remains, even for this cause, unperformed.'' There 
 
 1 White V. Mann, 26 Maine, 361; 'Williams v. Vanderbilt, 28 N. Y. 217; 
 Chase v. Barrett, 4 Paige, 148. 
 
 ' Da Costa v. Davis, 1 B. & P. 242. See Erie Railway v. Union Locomotive, 
 etc., Co., 6 Vfoom, 240. 
 
 » Ante, 2 458, 463. 
 
 * Brown v. Dillahunty, 4 Sm. & M. 718 ; Brick Presbyterian Church v. New 
 York, 5 Cow. 538. 
 
 6 Walker v. Pitts, 24 Pick. 191, 195; Lord v. Thomas, 64 N. Y. 107; Bain v. 
 Lyle, 18 Smith, Pa. 60; Ohio, etc.. Railway v. Yohe, 51 Ind. 181. 
 
 « Co. Lit. 206; Hughes v. Edwards, 9 Wheat. 489; Merrill v. Bell, 6 Sm. & 
 M. 730. See Barksdale v. Elam, 30 Missis. 694. 
 
 » Mizell V. Burnett, 4 Jones, N. 0. 249; Poussard u. Spiers, 1 Q. B. D. 410; 
 226 
 
IMPOSSIBILITIES. § 631 
 
 are some nice and curious questions connected -with con- 
 ditions rendered impossible by matter subsequent, but it is 
 best not to enter into them further here.^ 
 
 § 631. The Doctrine of this Chapter restated. 
 
 It is a general principle of our law that no one shall suffer 
 from the inevitable .'^ For example, if a man, without care- 
 lessness, lawfully keeps an animal not known to be vicious, 
 he will not be responsible for an injury to the person or 
 property of another done by the animal.'* On this principle, 
 if a party promises to do a thing, then is prevented from 
 the doing by overwhelming necessity, or by the law having 
 made it unlawful, he will not be compelled to suffer as for 
 a breach of contract. Yet if his undertaking is to pay the 
 damages which may come from a possible necessity not 
 foreseen, this contract may be enforced ; for, where a loss 
 \W11 fall on a person should a contingent event happen, it 
 is lawful and just for another person, on receiving a consid- 
 eration, to undertake to bear the loss. 
 
 But there are, both in natural reason and in the law, 
 various degrees of necessity. And, within the present 
 topic, the standard of necessity is what comes from the act 
 of God, the act of a public enemy, or the forbidding of the 
 thing by law. 
 
 Bettini v. Qye, 1 Q. B. D. 183; Howell v. Knickerbocker Life Ins. Co., 44N. 
 T. 276. 
 
 » Co. Lit. 206 ; Irion v. Hume, 50 Missis. 419, 426 ; Bain v. Lyle, 18 Smith, 
 Pa. 60 ; Merrill v. Emery, 10 Pick. 507; People v. Manning, 8 Cow. 297; H '- 
 land V. Bouldin, 4 T. B. Monr. 147. 
 
 2 Australasian Steam Nav. Co. v. Morse, LawKep. 4 P. C. 222, 228 ; 1 Bishop 
 Crim. Law, g 346, 351 , Terry v. New York, 8 Bosw. 504 ; Newton v. Pope, 1 
 Cow. 109. 
 
 » Dearth v. Buker, 22 Wis. 73 ; Decker v. Gammon, 44 Maine, 322 ; Meredith 
 V. Keed, 26 Ind. 334. "^ 
 
 227 
 
§ 634 LAW OF CONTKACTS. 
 
 CHAPTER XXXn. 
 
 THE UNAUTHORIZED ALTERING OF WRITTEN CONTRACTS. 
 
 § 632. Concerning the Authorities. — On the subject of 
 this chapter, as on that of the last, the judicial utterances and 
 decisions are to some extent conflicting, and not at all points 
 quite satisfactory. Still, on the whole, the doctrine is plain, 
 and it is rational. It is, in general terms, and keeping in 
 mind the reason of the law, and following the better adjudi- 
 cations where they differ, that, — 
 
 § 633. The Doctrine. — If a party to a written contract 
 so alters it, while it remains executory, as to vary its legal 
 effect to his advantage, whether he meditates a fraud or 
 not, — or, if, with the positive intent to defraud, he makes 
 in it any alteration whatever, — or, if another thus alters it 
 under authority from him, — or, if one to whose custody he 
 commits it makes in it a material alteration advantageous to 
 him, though without express authority, — then, at the 
 election of the other party, he is estopped from relying 
 upon it in a court of justice. 
 
 § 634. Keason of the Doctrine. — This doctrine rests, 
 in the main, on the technical reason, that it is essential to 
 the protection of honest parties against the frauds of the 
 dishonest.^ And it has a further support from the consid- 
 eration, that one should not blow hot and cold at the same 
 time : after he has altered the contract, he cannot in common 
 decency pretend that it remains in its old form ; he can 
 
 > Master v. Miller, 4 T. R. 820, 329, 330. 
 228 
 
UNAUTHORIZED ALTERING. § 638 
 
 claim nothing of the other party under the new form, 
 because, to this, such party has not consented. Hence — 
 
 § 635. Election by other Party. — The rule ought to be, 
 and injudicial reason it is, but hitherto the decisions seem 
 not to have spoken distinctly concerning it, that, after a 
 written contract has been wrongfully altered in the interest 
 of a party, the other party shall have his election to repu- 
 diate it, to maintain it in force in its old form, or to accept 
 the altered form ; but not, with knowledge of the facts, to 
 do the one as to some of its stipulations and the other as to 
 others.^ Plainly, on authority as well as reason, he may 
 still rely on the contract as it stood before the alteration, if 
 he will.^ Hence, — 
 
 § 636. Voidable. — Though, in the language, not quite 
 accurate, often employed in the books, the altered contract 
 may, be spoken of as void, it is truly voidable, and so 
 it should be termed, within distinctions already explained.' 
 
 § 637. Alteration by Stranger. — One not a party, a 
 custodian, or otherwise connected with a written contract, 
 does not impair the rights of any party, if, without authority, 
 he alters or destroys it, provided its original contents can 
 be proved.* But — 
 
 §638. By Custodian. — The custodian of an instrument 
 stands, in a measure, in the place of him for whose benefit 
 he holds it ; rendering an alteration by him, though withoiit 
 specific evidence of authority, in a general way and perhaps 
 indenticaUy, the same as if done by the party's own hand.* 
 
 * See Pattinson v. Luckley, Law Kep. 10 Ex. 330. 
 
 " Hemming v. Trenery, 9 A. & E. 926, 934 ; United States «. Spalding, 2 
 Mason, 478 ; Cutts i>. United States, 1 Gallis. 69. 
 
 * Ante, § 151 et seq. 
 
 * Henfree v. Bromley, 6 East, 309, 311 ; Piersol v. Grimes, 30 Ind. 129 ; Davis 
 V. Carlisle, 6 Ala. 707 ; Croft v. White, 36 Missis. 455 ; Medlin v. Platte, 8 
 Misso. 285 ; Lubbering v. Kohlbrecher, 22 Misso. 596 ; Nichols v. Johnson, 
 10 Conn. 192 ; Bigelow v. Stilphen, 35 Vt. 521 ; Terry v. Hazlewood, 1 Duvall, 
 104 ; Eees v. Overbaugh, 6 Cow. 746 ; EuUerton v. Sturges, 4 Ohio State, 529. 
 
 * Pattinson v. Luekley, Law Eep. 10 Ex. 330, 333 ; Morrison v. Welty, 18 
 Md. 169. See Bigelow v. Stilphen, 35 Vt. 521. 
 
 229 
 
§ 640 liAW OP CONTRACTS. 
 
 § 639. By the Party. — When a party himself alters the 
 written contract, whether acting personally or through an 
 agent whom he thereto authorizes, if his motive is not dis- 
 honest, and the alteration is such as does not vary the 
 interpretation to the prejudice of the other party ,^ its 
 validity is not impaired.^ If, however, he means an actual 
 fraud, the consequence is, in reason, supported sufficiently 
 by authority, though on this point the adjudications are not 
 as distinct as on some others, that the other party will be 
 discharged ; even where, on a critical examination, the legal 
 construction of the contract is found not to have been 
 changed.^ An alteration which, to any degree, varies the 
 legal effect of the instrument, to the prejudice of the other 
 party, releases the latter from it. No actual fraud need be 
 meditated in making such an alteration ; it is a fraud in law, 
 where it is not in fact.* 
 
 § 640. Executed. — If, before the alteration is made, the 
 
 • Ogle V. Graham, 2 Pa. 132; Montgomery Kailroad v. Hurst, 9 Ala. 513; 
 Broughton v. "West, 8 Ga. 248 ; Huntington v. Pinch, 3 Ohio State, 445, 448; 
 Brownell v. Winne, 29 N. Y. 400 ; Union Bank v. Cook, 2 Cranch C. C. 218. 
 It seems, however, to he the doctrine of some courts, that a material alteration, 
 though notprejudicial to the other party, discharges him. Bowers v. Briggs, 
 20 Ind. 139; Chadwick v. Eastman, 53 Maine, 12. 
 
 " Hunt V. Adams, 6 Mass. 519; The State v. Cilley, cited 1 N. H. 97; 
 Khoades v. Castner, 12 Allen, 130; Park v. Glover, 23 Texas, 469; Nichols v. 
 Johnson, 10 Conn. 192 ; Pequawket Bridge v. Mathes, 8 N. H. 139 ; Burnham 
 V. Ayer, 35 N. H. 351 ; Langdon v. Paul, 20 Vt. 217 ; Reed v. Kemp, 16 Bl. 
 445 ; Dunn v. Clements, 7 Jones, N. C. 58 ; The State v. Dean, 40 Misso. 
 464 ; Shelton v. Deering, 10 B. Monr. 405 ; Aldous v. Cornwell, Law Eep. 3 
 Q. B. 573; Major v. Hansen, 2 Bis. 195; Huntington v. Pinch, 3 Ohio State, 
 445; 
 
 ' 1 Greenl. Ev. g 578 ; Montgomery Eailroado. Hurst, 9 Ala. 513 ; Adams v. 
 Prye, 3 Met. 103 ; Nunnery v. Cotton, 1 Hawks, 222 ; Lewis v. Payn, 8 Cow. 
 71 ; Wright v. Wright, 2 Halst. 175 ; Malin v. Malin, 16 Johns. 293. Con- 
 tra, Moye V. Hemdon, 30 Missis. 110. 
 
 * Porter v. Dohy, 2 Eich. Eq. 49 ; Washington Savings Bank v. Bcky, 51 
 Misso. 272 ; Boston v. Benson, 12 Cush. 61 ; Eichmond Manuf. Co. v. Davis, 7 
 Blackf. 412 ; Mollett v. Wackerharth, 5 C. B. 181 ; Wheelock v. Preeman, 13 
 Pick. 165, 168 ; Stoddard v. Penniman, 108 Mass. 366 ; Schwalm v. Molntyre, 
 17 Wis. 232; Smith v. Mace, 44 N. H. 553; Hirsohman v. Budd, Law Eep. 8 
 Ex. 171 ; Hirschfeld v. Smith, Law Eep. 1 C. P. 340, 353. 
 
 230 
 
UNAUTHOEIZED ALTERING. § 642 
 
 contract has had its effect and is ended, — as, if it is a deed 
 of lands, and the deed is delivered, and the title has vested 
 in the grantee, — an alteration, however fraudulently in- 
 tended, does not undo what has thus been done } But where 
 any executory part remains, it cannot be enforced.^ 
 
 § 641. All Forms of Written Contract. — The doctrines 
 of this chapter apply equally to all written contracts, whether 
 simple or under seal, and whatever their subjects. Con- 
 trary intimations, in some of the older cases, are not sound 
 in principle, and they are now discarded.^ 
 
 § 642. The Doctrine of this Chapter restated. 
 
 When a written contract has been made, common duty 
 and prudence require that the party in possession of the 
 writing should carefully preserve it. If, without his fault, 
 another gets unlawful possession of it and destroys it, — or, 
 if with innocent purpose he makes in it some alteration 
 which does not vary it to the prejudice of the other party, — 
 this will not imjDair his rights under it. But if he commits 
 its custody to one who alters it in his interest, — or, if he 
 authorizes another so to alter it, and it is done, — or, if he 
 does it himself, — he forfeits, by this bad faith or want of 
 due care, all his rights under it. Yet if it has already 
 taken effect, and his rights have become vested, no altera- 
 tion of the defunct contract can revest them in another. 
 Bad faith, acted upon by the defrauded party, may operate 
 as an estoppel ; but, not acted upon, as in the cases now 
 supposed, it cannot.* 
 
 1 Collier v. Jacoby, 9 Cow. 125 ; Kendall v. Kendall, 12 Allen, 92 ; Speer v. 
 Speer, 7 Ind. 178; Chessman ■». Whlttemore, 23 Pick. 231; Lewis v. Payn, 8 
 Cow. 71; G-illespie v. Reed, 3 McLean, 377. See "Wallace v. Harmstad, 8 
 Wright, Pa. 492. 
 
 * Arriaon v. Harmstead, 2 Barr, 191 ; "Wallace v. Harmstad, 3 Harris, Pa. 
 462; "Waring B. Smyth, 2 Barb. Ch. 119. 
 
 ' Aldous V. Cornwell, Law Eep. 3 Q. B. 573. 
 
 * Ante, I 127 et seq. 
 
 231 
 
645 IaAW or contbacts. 
 
 CHAPTER XXXm. 
 
 THE ALTEEING OF CONTKACTS BY MUTUAL CONSENT. 
 
 § 643. Simple Written Contract altered by Writing. — 
 
 If, after a simple contract in writing is executed, the parties 
 mutually consent to any alteration in the Writing, this, when 
 made, creates a new contract,^ consisting of the old one and 
 the altered part. The transaction is valid.'* But — 
 
 § 644. Party not consenting. — A surety,^ or a third 
 party,* not consulted about the alteration or not consenting, 
 is thereby discharged. It is good as to those who do con- 
 sent.' 
 
 § 645. Oral Altering o£ Simple Written. — As oral and 
 written contracts, not under seal, are of equal grade,* if the 
 parties to a simple contract in writing agree orally to any 
 change in it, and it is not of a sort which the statute ot 
 frauds or any other statute or technical rule of law requires 
 to be in writing, the change thus orally made is valid.' 
 And — 
 
 1 Ante, § 31, 58; Vicary v. Moore,2 Watts, 451; Dana v. Hancock, 30 Vt 
 616 ; Brigg3 v. Vermont Central Eailroad, 31 Vt. 211 ; Lawall v. Rader, 12 Har- 
 ris, Pa. 283. 
 
 ^ Wilson «. Henderson, 9 Sm. &M. 375; People v. Call, 1 Denio, 120. 
 
 ' Grardiner v. Harback, 21 HI. 129 ; Ryan v. Parker, 1 Ire. Eq. 89 ; Darwin v. 
 Rippey, 63 N. C. 318. 
 
 * Crockett v. Thomason, 5 Sneed, Tenn. 342 ; Goodnaan v. Eastman, 4 N. H. 
 455; King v. Hunt, 13 Misso. 97; Pay v. Smith, 1 Allen, 477; Prettyman e. 
 Goodrich, 23 111. 330. 
 
 6 Warring v. Williams, 8 Pick. 822 ; Broughton v. Puller, 9 Vt. 878 ; The 
 State V. Van Pelt, 1 Ind. 304; Smith v. Weld, 2 Barr, 54. And see Harper v. 
 The State, 7 Blackf. 61 ; Brigga v. Glenn, 7 Misso. 572. 
 
 « Ante, ^ 54. 
 
 ' Westchester Fire Ins. Co. v. Earle, 33 Mich. 143 ; Cartright r. Clopton, 
 
 232 
 
ALTERING BY CONSENT. § 647, 
 
 § 646. Effect of Clause not to alter. — Such oral altera- 
 tion is valid even though the parties have in their writing 
 agreed not to make it, or declared that an oral alteration 
 would be void ; for, by word of mouth, they can waive the 
 written agreement.^ 
 
 § 647. Becomes all Oral — New Contract — Considera- 
 tion. — Such written contract, thus orally altered, becomes, 
 in law, all oral, as we have already seen.^ Consequently 
 the oral alteration is the making of a new contract, which, 
 like any other, must be founded on a consideration. But 
 the transaction constitutes also the annulling of the old 
 contract, and this is ordinarily an adequate consideration 
 for the new ; the doctrine being general, that the surrender 
 of one valid contract (not of an invalid one^) will, as a con- 
 sideration, make valid another.* Where there is a mere 
 promise by the one party, and no relinquishment or waiver 
 of anything by the other, then, of course, the promise is 
 
 26 Ga. 85; Langford v. Cummings, 4 Ala. 46; Miles v. Roberts, 34 N. H. 245; 
 Bichardson v. Cooper, 25 Maine, 450; Grafton Bank v. Woodward, 5 N. H. 
 99; Frost v. Everett, 5 Cow. 497; Keating v. Price, 1 .Johns. Cas. 22; Rhodes 
 V. Thomas, 2 Ind. 638. 
 
 » McFadden v. O'Donnell, 18 Cal. 160; Westchester Fire Ins. Co. v. Barle, 
 supra; Smith o. Gugerty, 4 Barb. 614. Contra, White v. San Rafael, etc., 
 Railroad, 50 Cal. 417. See Barker v. Troy and Rutland Railroad, 27 Vt. 766. 
 
 = Ante, 2 58, 643. 
 
 ' Louisville Bank v. Young, 37 Misso. 398 ; Holden v. Cosgrove, 12 Gray, 
 216 ; Crosby v. Wood, 2 Seld. 369 ; Van Allen v. Jones, 10 Bosw. 369. 
 
 * Weld V. Nichols, 17 Pick. 638, 643; Munroe v. Perkins, 9 Pick. 298, 305; 
 Scott V. McKinney, 98 Mass. 344, 348 ; Woodward v. Miles, 4 Fost. K H. 289; 
 Connelly v. Devoe, 37 Conn. 570 ; Montgomery v. Morris, 32 Ga. 173 ; Taylor 
 V. Meek, 4 Blackf. 388; Perry v. Buckman, 33 Vt. 7; Hildreth v. Pinkerton 
 Academy, 9 Fost. N. H. 227 ; Doyle v. Dixon, 97 Mass. 208 ; Calhoun v. Cal- 
 houn, 37 Missis. 668 ; Spann v. Baltzell, 1 Fla. 301. In Thurston v. Hays, 6 
 Ohio State, 1, this obvious view of the question of the consideration was over- 
 looked by the learned judge who delivered the opinion of the court; but, 
 though we should deem his reasoning to be in a measure unsound, still the 
 conclusion was unquestionably correct. There are two or three grounds for 
 this ; one being, that, by the statute of frauds, the contract, if made oral, would 
 have become void. But the evidence was distinct, that both the parties deemed 
 it to be subsisting in some form. 
 
 233 
 
§ 649 LAW OF CONTRACTS 
 
 void for the wanjt of consideration.^ And there may be 
 cases, where, in fact, as the law views the transaction, while 
 nominally the parties concur, it amounts only to a promise 
 on one side, nothing being relinquished on the other ; when, 
 of course, to be valid, there must be a fresh considera- 
 tion.^ 
 
 § 648. Altering where lil^riting is Essential to Valid- 
 ity. — We have seen that the central object of interpretation 
 is to ascertain and carry out the meaning of parties, so that 
 even particular words are made to give way to the ascer- 
 tained intent.' And, in pursuance of this rule, where 
 plainly their purpose is to bind themselves by contract, 
 every possible eflFort will be put forth so to shape their 
 meaning as to render their undertaking valid.* The result 
 of which is, that, if, in writing, parties have entered into a 
 contract of a sort to be good only in the written form, and 
 then they interchange such oral words as would ordinarily 
 be understood to vaxy the contract ; still, if the change 
 would make it void, and it is plain they mean it shall remain 
 v^lid, such words, not being reconcilable with the rest of 
 the transaction, will be rejected as repugnant and of no 
 effect.^ Thus,— 
 
 §649. Promissory Note. — By the law-merchant, an 
 oral promissory note is impossible ; it must be in' writing.* 
 Consequently an oral agreement varying such a note is 
 
 ' Bobbins v. Potter, 98 Mass. 532; Bichardson v. Williams, 49 Maine, 558; 
 Styron v. Bell, 8 Jones, N. C. 222; Bixler v. Beam, 3 Pa. 282. And see Col- 
 lins V. Baumgardner, 2 Smith, Pa. 461. 
 
 ' Ante, 2 412, 414, 421; McDugald v. McPadgin, 6 Jones, N. C. 89; Peel- 
 man V. Peelman, 4 Ind. 612; Colcock v. Louisville Bailroad, 1 Strob. 329; 
 Clark u. Small, 6 Yerg. 418; Whitson v. Powlkes, 1 Head, 533; Hawley v. 
 Farrar, 1 Vt. 420; Barlow v. Smith, 4 Vt. 139; Clifton v. Litchfield, 106 Mass. 
 34. 
 
 8 Ante, 2 575, 578. 
 
 * Ante, ? 582, 583, 585. 
 / s Ante, I 580. 
 
 6 Ante, I 587. 
 234 
 
ALTERING BY CONSENT. § 651 
 
 repugnant to the whole transaction, and it must be rejected 
 as void.^ Again, — 
 
 § 650. Statute of Frauds. — Agreements which, to be 
 valid, must by the statute of frauds be in writing, cannot 
 be orally varied. The admission of the evidence would 
 introduce a repugnancy, and it must be rejected ; ^ or, in 
 another form of the proposition, the oral agreement is 
 invalid, and what is invalid cannot vary or annul what is 
 valid.* Still there are cases in which the intent to depart 
 from the writing and substitute a new and oral contract is 
 so evident as to render the rejection of the latter impossible ; 
 and then, the written contract being gone, the oral will 
 come under the condemnation of the statute.* On the other 
 hand, if the oral variation stojDS at a point which leaves a 
 sufficient memorandum in writing to answer the require- 
 ments of the statute, it may have effect, the same as in a 
 case where no writing was originally necessary. On this 
 ground, some courts hold that the time of performance may 
 be orally varied,^ while others maintain the contrary.* 
 
 § 651. Specialties. — We have seen, in general, what the 
 doctrine is as to instruments under seal.' The adjudications 
 on the subject appear in great confusion ; but, if we look 
 into the principle which should govern them, we shall find 
 the result to be as follows : — 
 
 First. Wtere Sealing is not Essential. — If, in the 
 particular instance, an oral agreement, or a written one not 
 
 1 Adler v. Friedman, 16 Cal. 138. The proposition of the text is obvious, 
 and needs no authority to sustain it. In mere authority, I should not deem 
 this case adequate ; for, neither by necessary implication, nor by any distinct 
 utterance, does it exactly cover the proposition. 
 
 ' Ante, 2 647, note ; Giraud v. Richmond, 2 C. B. 835 ; Moore v'. Campbell, 
 10 Bxch. 823. 
 
 ' Noble V. Ward.^aw Eep. 2 Ex. 135, 138. 
 
 * Sanderson :;. Graves, Law Bep. 10 Ex. 234. 
 
 » Stearns v. Hall, 9 Cush. 31. 
 
 » Stead V. Dawber, 10 A. &E. 57; Noble v. Ward, Law Rep. 1 Ei. 117, 2 
 Ex. 135. 
 
 ' Ante, I 30-37. 
 
 235 
 
§ 653 LAW OF CONTRACTS. 
 
 sealed, would be good in l3,w, there is no objection to vary- 
 ing the specialty by words without seal, and thus reducing 
 the transaction to a simple contract. But even then the 
 presumption will be violent that this is not meant, and the 
 change will be held to take place only where the intent is 
 clear.^ And never, where a sealed instrument is altered 
 without seal, will it remain a specialty.^ 
 
 § 652. Secondly. Where Sealing is Essential. — If the 
 instrument would be void, for the purpose meant, without 
 a seal, then the doctrine of some previous sections,^ together 
 with that of the last, will apply. As, in such a case, the 
 intention of the parties is, on the very face of their act, not 
 to annul their contract, and as the alteration if held effectual 
 would annul it, — as, therefore, their whole act cannot 
 stand, because one part is repugnant to the rest, — the 
 courts should adjudge the part void which does not overturn 
 the whole purpose of the parties. Since, if the alteration 
 took effect, there would cease to be a contract, such altera- 
 tion should be adjudged null. 
 
 § 653. Form of Altering Specialty by Consent. — The 
 foregoing views apply to cases where plainly the altered 
 matter cannot be deemed incorporated with that under 
 seal, so as to constitute a part of it. But, by writing, — 
 as, by an interlineation, — after an instrument is sealed, and 
 even after it is delivered, there may be a valid alteration of 
 it, where due formalities are observed. There is a difference 
 of opinion, with some confusion in the cases, as to what 
 must be the formalities. By all opinions, if, while the 
 delivered contract is in its executory condition, the parties 
 are together, and then the instrument is handed back to him 
 who sealed it, and then the latter alters it by consent of 
 the other, or assents to an alteration made by a third per- 
 
 1 See Burns v. Allen, 9 Ire. 870. 
 
 ' Vaughn V. Perria, 2 Watts &_S. 46 ; Eddy v. Graves, 23 Wend. 82 ; Bobbins 
 tj. Ayres, 10 Misso. 538. 
 ' Ante, § 648-650. 
 236 
 
ALTERING BY CONSENT. § 654 
 
 son in his presence, and redelivers it, tlie transaction will be 
 valid. And it appears to be the doctrine of some of the 
 cases that nothing short of this will do.^ Indeed, such 
 seems to be the result of principles already brought to view ; * 
 or, at least, the equivalent of this would seem to be required. 
 Some of the American cases, however, appear to concede 
 the validity of proceedings.less strict, but it would be difficult 
 to derive from them any exact rule.^ 
 
 § 654. The Doctrine of this Chapter restated. 
 
 Every agreement may be varied by the parties before 
 performance ; for, where they can agree, they can agree 
 
 ■ In Add. Con. 11th Eng. ed. 288, the statement of the author, with his 
 authorities, is as follows : "If, after a deed is executed, material blanks pur- 
 posely left in it are filled up with the assent of all the parties to the instrument, 
 or if a schedule is added to the deed describing certain property upon which 
 the deed is to operate, and the deed is insensible and inoperative without the 
 schedule (Weeks v. Maillardet, 14 East, 568, 572), or if a new covenantor is 
 added (Gardner v. "Walsh, 5 Ellis & B. 83, 24 Law J. n. s. Q. B. 285), the deed 
 must be redelivered (Markham v. Gonaston, 9 Bast, 354, note; Hudson v. 
 Eevett, 5 Bing. 368; Hall ». Ohandless, 4 Bing. 123; Keele v. "Wheeler, 13 
 Law J. K. s. C. P. 170, 8 Scott N. B. 323 ; Enthoven v. Hoyle, 21 Law J. if. s. 
 C. P. 100), and must have a fresh stamp (Prench v. Patton, 9 Bast, 351) ; but 
 blanks left for filling in dates previously agreed upon, or the names of persons 
 not being parties to the deed, may be filled up after the execution of the 
 instrument. Adsetts v. Hives, 33 Beav. 66. And a bond remaining in the 
 hands of the agent of the obligor as an escrow, is not avoided by the addition 
 of another obligor, with the assent of the agent, before the delivery of the in- 
 strument of the obligee. Matson v. Booth, 5 M. & S. 223, 226 ; Hudson v. 
 Eevett, 2 Moore & P. 691. Nor, when a deed inter partes is in progress of 
 execution, and an alteration is made to meet the wishes of the parties who are 
 about to execute it, does such alteration, if it does not alter the operation of 
 the deed with respect to the parties who have previously executed it, avoid the 
 deed. Lewis v. Bingham, 4 B. & Aid. 672, 676 ; Hall u. Chandless, 12 Moore, 
 316, 4 Bing. 123." 
 
 ' Ante, 1 16-18, 30-37, 168, 169, 370, 397-400. 
 
 ' See, as representing various American views. Gotten v. Williams, 1 Pla. 
 37; Thompson «. Williams, 1 Pla. 56; Mclntvre v. Park, 11 Gray, 102; 
 Cleaton v. Chambliss, 6 Band. 86; Ex parte Decker, 6 Cow. 60; Speake v. 
 United States, 9 Cranch, 28; Boardmani7. Williams, 1 Stew. 517; Woolley w. 
 Constant, 4 Johns. 54 ; Ex parte Kerwin, 8 Cow. 118. 
 
 237 
 
§ 654 LAW OF CONTEACT8. 
 
 over again. But, if the law has provided special forms for 
 the original contract, the new one cannot be made in utter 
 disregard of those forms. Out of this plain proposition, 
 and out of attempts which parties sometimes make to 
 reagree in disregard of it, grow the difficulties connected 
 with the subject of this chapter. They do not require to be 
 repeated. 
 238 
 
WAIVBE. § 656 
 
 CHAPTER XXXrV. 
 
 AVAIVER.^ 
 
 § 655. What — How defined. — Waiver pertains, not 
 merely to the law of contracts, but also to judicial proceed- 
 ings, and to nearly every other department of the law, civil 
 and criminal.^ The doctrine is not quite free from techni- 
 calities ; but, in a general way, waiver may be said to occur 
 wherever one, in possession of a right conferred either by 
 law or by contract, and knowing the attendant facts, does 
 or forbears to do something inconsistent with the existence 
 of the right, or of his intention to rely upon it ; in which 
 case, he is said to have waived it, and he is estopped from 
 claiming anything by reason of it afterward. Thus, in the 
 law of contracts,^ — 
 
 -§ 656. liandlord and Tenant — Forfeiture. — Where a 
 lease of lands provides, that the lessee shall forfeit his estate 
 in them if he assigns it, or permits an auction on the 
 premises, or neglects to pay rent due, or the like ; then, 
 should a forfeiture occur, it will be waived by the landlord, 
 who can never afterward insist upon it, if he takes pay for 
 subsequent rent, or does anything else, by which in legal 
 effect he recognizes the continued existence of the lease.* 
 AgaiQ, — 
 
 1 Consult ante, ? 446-453. 
 
 = See 1 Bishop Crim. Proced. g 117 et seq. 
 
 ' See, for illustrations of the doctrine of -waiver, the follo\7ing cases not 
 referred to elsewhere in this chapter: Bosler v. Reheem, 22 Smith, Pa. 54 
 Bryant v. Wilcox, 49 Cal. 47 ; Chiniquy v. People, 78 111. 570 ; Moore v. Reed, 
 2 Ire. Eq. 580 ; Luske v. Hotchkiss, 37 Conn. 219 ; Detroit v. 'Whittemore, 
 27 Mich. 281 ; Long Island Terry v. Terbell, 48 N. Y. 427. 
 
 * Coon V. Brickett, 2 N. H. 163 ; Western Bank v. Kyle, 6 Gill, 343 ; Clark 
 
 239 
 
§ 660 LAW OP CONTRACTS. 
 
 § 657. Time and Manner of Performance. — One by 
 
 standing by and not objecting, or by words, may so ac- 
 quiesce in changes in the time and manner of performing a 
 contract, as to be estopped to deny that it has been per- 
 formed according to its terms ; though, in strictness, it has 
 not been.^ The distinction between this sort of case, and 
 that in which the change will be held to constitute a new 
 contract, is not quite so plainly drawn in the adjudged cases 
 as we might desire ; still its existence, in point of legal doc- 
 trine, is well established.^ The waiver may be by act sub- 
 sequent to a default, the same as before ; as, where one ac- 
 quiesces in the doing to-day of what ought to have been 
 performed yesterday.^ 
 
 § 658. With Knowledge. — Knowledge of the facts is of 
 the essence of waiver, which does not take effect by any- 
 thing done in ignorance of them.* Thus, — 
 
 § 659. Breach of Condition. — If one has broken a con- 
 dition in his contract, the other does not waive it by what- 
 ever act, unless he knows of the breach.® And — 
 
 § 660. Defect in Manufacture. — The acceptance of an 
 article manufactured under a contract, if the article contains 
 
 V. Jones, 1 Denio, 516 ; McGlynn u. Moore, 25 Gal. 384 ; McKildoe v. Daira- 
 cott, 13 Grat. 278; Toleman v. Portbury, Law Eep. 6 Q. B. 245, 248; Mitchell 
 V. Steward, Law Rep. 1 Eq. 541 ; Grimwood v. Moss, Law Eep. 7 C. P. 360. 
 See ante, ^ 206. 
 
 1 See post, I 662. 
 
 ' McCombs V. McKennan, 2 "Watts & S. 216 ; Wilhelm v. Caul, 2 Watts & 
 a. 26; Pisher v. Smith, 48 111. 184; Stead u. Dawber, 10 A. & E. 57, 64; 
 McNaughter v. Cassally, 4 McLean, 530; Ex parte Booker, 18 Ark. 338; Bur- 
 rill V. Saunders, 36 Maine, 409 ; Vroman v. Darrow, 40 HI. 171 ; Cuff v. Penn, 
 1 M. & S. 21 ; Chicago, etc. , Railway v. Van Dresar, 22 "Wis. 511 ; ■ Adams v. 
 Hill, 16 Maine, 215; Palmer v. Stockwell, 9 Gray, 237; Shaw v. The Turn- 
 pike, 2 Pa. 454 ; Dare v. Spencer, ^ ifelackf. 491. 
 
 ' Jordan v. Rhodes, 24 Ga. 478 ; Nibbe v. Brauhn, 24 111. 268 ; MoCord v. 
 West Peliciana Railroad, 3 La. An. 285; Lagrave v. Fowler, 4 La. An. 243; 
 Pox 0. Harding, 7 Cush. 516; Lawrence v. Davey, 28 "Vt 264; Baldwin v. 
 Parnsworth, 1 Pairf. 414. 
 
 * Darnley v. London, etc., Railway, Law Rep.,2 H. L. 43, 57 ; Benedict v. 
 Miner, 58 111. 19. 
 
 ' Gray v. Blanchard, 8 Pick. 284, 292. 
 
 240 
 
WAIVER. § 663 
 
 a latent defect unknown to him who accepts it, is not a 
 waiver which will preclude his recovering damages for the 
 defect.^ Again, — 
 
 § 661. Stoppage in Transitu. — Under the law of sales, 
 if a man sells goods on credit to another, who, while they 
 are undelivered in the possession of warehousemen and 
 common carriers, becomes insolvent, he may reclaim and 
 hold them, unless the insolvent purchaser will pay for them. 
 This is termed stoppage in transitu.'^ But the right thus to 
 reclaim them may be waived ; as, if the seller, instead of 
 exercising it, attaches them as the property of the buyer.' 
 StiU if, when he takes legal steps inconsistent with the 
 exercise of this right, he is ignorant of the facts, he may 
 stop the goods and decline to press his suit, on the truth 
 coming to his knowledge.* 
 
 § 662. Consideration — (Withdrawing Waiver — !Exe- 
 cuted). — If, in terms, one waives his right, but receives no 
 consideration for the waiver, and no step has been taken 
 under it, this mere license may be withdrawn at the pleasure 
 of him who gave it.^ But if the thing has been done, how- 
 ever destitute of consideration the waiver was, the case is 
 like that of any executed gift, or other executed contract 
 not founded on a consideration ; that is, what is performedA^ 
 throusrh mutual consent cannot be recalled.® So — 
 
 § 663. Simultaneous with Performance. — A waiver 
 which is simultaneous with the transaction to which it 
 pertains, cannot be recalled ; as, if a man when applied to 
 refuses to do what his contract requires, but does not make 
 an objection which he might to time and manner ; this is a 
 
 1 CasBidy v. Le Fevre, 45 N. Y. 562 ; Strawn v. Oogswell, 28 El. 457; Moul- 
 ton V. McOwen, 103 Mass. 587. 
 
 2 2 Kent Com. 540. 
 
 » "Woodruff V. Noyes, 15 Conn. 335. 
 
 * Calahan v. Baboock, 21 Ohio State, 281, 294. 
 
 ' Dunning v. Mauzy, 49 HI. 868 ; Boutwell v. O'Eeefe, 32 Barb. 434. 
 
 • Lawrence v. Dole, 11 Vt. 549. 
 
 241 
 
§ 664 LAW OF CONTRACTS. 
 
 waiver of the objection, which afterward he is too late to 
 bring forward, nor can he claim that the waiver was without 
 consideration.^ Or, if there is an agreement to do a thing 
 in a particular time or manner, an acceptance of the doing in 
 another time and manner, proceeding from no separate con- 
 sideration, will be good.^ 
 
 § 664. The Doctrine of this Chapter restated. 
 
 A party may waive any right under a contract ; but, while 
 the waiver remains without consideration, and nothing has 
 been done under it, he can withdraw it at pleasure. After 
 steps under it have been taken or forborne -by the other 
 party, he is estopped to withdraw it ; or, in another view, 
 the taking or omitting of the steps may be deemed a con- 
 sideration, which will render the waiver binding. 
 
 An executory contract, in the form of a waiver, cannot 
 be withdrawn when founded on a consideration. But, in 
 legal language^ the term waiver is not employed to designate 
 such a contract. 
 
 1 Dimlap V. Hunting, 2 Denio, 643; Merritt v. Cotton States Life Ins, Co., 
 65 Ga. 103; Morgan v. Stearns, 40 Cal. 434; Dresel v. Jordan, 104 Mass. 407; 
 Stover i». Flack, 30 N. Y. 64 ; Connelly v. Devoe, 87 Conn. 570 ; Pullman v. 
 Corning, 5 Selden, 93 ; Corbitt v. Stonemetz, 15 Wis. 170. 
 
 2 Porter v. Stewart, 2 Aikens, 417 ; "Warren v. Mains, 7 Johns. 476 ; O'Ban- 
 num V. Eelf, 7 Bana, 320 ;. Lawrence v, Davey, 28 Vt. 264 ; Haskell v. Blair, 8 
 Gush. 534; ante, J 657. 
 
 242 
 
KE8CISSION AND RELEASE. § 667 
 
 CHAPTER XXXV. 
 
 RESCISSION AND RELEASE OP THE EXECUTORT CONTRACT. 
 
 J 665-666. Introduction. 
 
 667-672. By Mutual Consent. 
 
 673-681. By one Party for the other's Fault 
 
 682-685. By one Party wrongfully. 
 
 686. Doctrine of the Chapter restated. 
 
 § 665. Course of the Discussion. — In the chapter before 
 the last, one way of putting an end to a contract was con- 
 sidered ; namely, substituting another for it. In the chapter 
 next preceding that one, we saw how, where it is in writing, 
 a party may discharge the other by making in it an unau- 
 thorized alteration. In the next chapter, we shall discuss 
 the ordinary breach of contracts and their performance. A 
 breach may furnish ground for rescission ; but that wiU be 
 considered, in connection with the other causes for rescission, 
 in this chapter. 
 
 § 666. How the Chapter divided. — Three methods of 
 terminating a contract will be brought to view in this 
 chapter, in the following order ; namely, I. By Mutual 
 Consent; II. Rightfully, by one Party, because of some 
 Incapacity, Wrong, or Default in the other ; III. Wrong- 
 fully, by one Party, without the other's consent. 
 
 I. By Mutual Consent. 
 
 § 667. Beversing Act of Formation. — What parties can 
 do they can undo. If, therefore, they have entered into a 
 contract founded in mutual promises, whether verbal or in 
 writing, — or, if in writing, whether the law requires it to 
 
 243 
 
^ 
 
 § 669 LAW OF CONTRACTS. 
 
 be so or not, — they can jointly, before anything is done 
 under it, withdraw these promises ; and, whether the with- 
 drawal is in writing or by oral words, that is the end of the 
 contract.^ Or, if it was under seal, they can mutually do 
 the same thing with the same effect, merely adding the 
 destruction of the seal.^ And if a consideration in money or 
 other valuables was given, it can be returned to the giver, 
 and all will stand as before. So much is clear : but difficul- 
 ties may arise where the acts claimed to constitute a 
 rescission have not progressed so far ; for it may take place 
 where, to outward appearance, less is done. Thus, — 
 
 § 668. ImpUed — (Both Parties in Fault). — The mutual 
 consent to a rescission need not be by express words, being 
 equally valid if implied.*' It is sufficiently implied, for 
 example, where both paities are in'^efault, so that neither 
 can sue the other ; or where both discard the contract.* 
 
 § 669. Return of Consideration. — We have seen, that, 
 where the rescission proceeds from one party alone as of 
 right, he must return, or offer to return, whatever he received 
 from the other under the contract.* If it is by mutual con- 
 sent, doubtless the one party can make to the other a 
 present of any money or other thing originally paid as con- 
 
 ' Stead V. Dawber, 10 A. & E. 57, 65 ; Coles v. Trecothick, 9 Ves. 234, 250 ; 
 Forbes v. Smiley, 56 Maine, 174 ; Waugh v. Blevins, 68 N. C. 167 ; Goman v. 
 Salisbury, 1 Vern. 240; Gatlin v. "Wilcox, 26 Ark. 309; Cutler v. Smith, 43 
 Vt. 577; Guthrie v. Thompson, 1 Oregon, 353; Ward v. "Walton, 4 Ind. 75; 
 Beach v. Covillard, 4 Cal. 315 ; Natchez v. Minor, 9 Sm. & M. 544 ; Moore v. 
 Shenk, 3 Barr, 13 ; Lauer v. Lee, 6 "Wright, Pa. 165 ; Borum v. Garland, 9 
 Ala. 452 ; Mills v. Eiley, 7 Ind. 137. 
 
 ' Matthewson «.Jjydiate, Cro. Eliz. 546 ; Cross v. Powel, Cro. Eliz. 483, 
 See further, as^to annulling a sealed instrument, ante, g 30-37 ; McDonald v. 
 Mountain Lake Water Co., 4 Cal. 335 ; Union Bank v. Call, 5 Ela. 409. 
 
 » "WheedenB. Eiske, 50 N. H. 125; Fine v. Rogers, 15 Misso. 513; Jones v. 
 Neale, 2 Pat. & H. 339. 
 
 * Harris v. Bradley, 9 Ind. 166 ; Ford v. Smith, 25 Ga. 675. 
 
 s Ante, 2 203. That was where the rescission is for the fraud of the other 
 party, but the same rule applies in other oases. Hunt v. Silk, 5 East, 449; 
 Jarrett v. Morton, 44 Misso. 275; Johnson v. "Walker, 25 Ark. 196; Ellington 
 i>. King, 49 111. 449 ; Young v. Stevens, 48 N. H. 133 
 
 244 
 
RESCISSION AND RELEASE. § 671 
 
 sideration for the agreement, or this may be made a consid- 
 eration for the rescission ; but, in the absence of any express 
 stipulation, the party who paid can recover back the pay- 
 ment.^ 
 
 § 670. Xixecnted. — Where a contract has been fally 
 executed, having accomplished its mission, there is plainly 
 nothing to rescind. A reversing of what was done would 
 be merely the making and carrying but of a new agreement. 
 For example, — 
 
 § 671. Cancelling Deed of Land. — As the title of land 
 can pass only by deed, if a grantee in whom the estate has 
 vested delivers back his deed, or it is cancelled by mutual 
 consent, this, while it may constitute an agreement to 
 reconvey, does not reinvest the original grantor with the 
 title.^ There may be circumstances varying the effect ; as, 
 if the deed has not been recorded, a subsequent conveyance 
 from the original grantor to a third person will transmit the 
 title to the latter.^ And, in some of the States, the rule 
 seems to prevail, that the surrender of an unrecorded deed 
 will transfer the seisin back to the grantor.* But the gen- 
 eral doctrine is as above stated. 
 
 ' Barbers. Lyon, 8 Blackf. 215; Clark v. King, 2 Car. & P. 286; Jenkins v. 
 Thompson, 20 N. H. 457 ; Carter v. Carter, 14 Pick. 424 ; Lebanon v. Heath, 
 47 N. H. 353; Kelsey v. United States, 1 Ct. 01. 374; Bales v. Weddle, 14 
 Ind. 349 ; Harris o. Bradley, 9 Ind. 166 ; Chapman v. Shaw, 5 Greenl. 59 ; 
 Smith V. Lamb, 26 HI. 396; Blood v. Bnos, 12 Vt. 625. See Jones v. Loggins, 37 
 Missis. 546. 
 
 2 Kearsing v. Kilian, 18 Cal. 491 ; Lawton v. Gordon, 34 Cal. 36 ; Parshall 
 B. Shirts, 54 Barb. 99, 104 ; Linker v. Long, 64 N. C. 296 ; Holbrook ». Tirrell, 
 9 Pick. 105 ; Steel v. Steel, 4 Allen, 417, 422 ; Van Hook v. Simmons, 25 Texas, 
 Supp. 323; Fawcetts v. Kimmey, 33 Ala. 261; Gimon v. Davis, 36 Ala. 589; 
 Killey v. Wilson, 33 Cal. 690 ; Jordan v. Pollock, 14 Ga. 145 ; "Wilson v. Hill, 
 2 Beasley, 143; Raynor v. "Wilson, 6 Hill, N. T. 469; Connellys Skelly, 8 
 Blackf, 320; Morgan v. Elam, 4 "Terg. 375; Graysons ». Richards, 10 Leigh, 
 57 ; Parker v. Kane, 4 "Wis. 1. And see ante, g 640. 
 
 ' Holbrook v. Tirrell, supra. 
 
 * Sawyer v. Peters, 50 N. H. 143; Tomson v. "Ward, 1 N. H. 1 ; Nason v. 
 Grant, 21 Maine, 160; Parker v. Kane, 22 How. U. S. 1. 
 
 245 
 
§ 675 LAW OF CONTRACTS. 
 
 § 672. Performed on one Side — Broken. — If the con- 
 tract has been performed on one side, and only money 
 remams to be paid on the other, the case is like that of any 
 other debt, and the discharge must be made in like manner. 
 The same also may be said of a breach, resulting in damages.* 
 
 II. Rightfully, by one Party, because of some Incapacity, 
 Wrong, or Default in the other. 
 
 § 673. Originally voidable. — It is within doctrines dis- 
 cussed in earlier parts of this volume to say, that, if a 
 contract is originally voidable by one of the parties, — as, 
 where it is illegal only in the other party ,^ or it is oral and 
 within the statute of frauds,' or it was procured by the 
 fraud of the other party,* — the party not in fault may 
 avoid it, or treat it as void. So, — 
 
 § 674. Voidable by Matter subsequent. — If the consid- 
 eration has failed,* the party whose promise was made on 
 the strength of it can avoid the contract.® And, in other 
 circumstances, where it was not voidable from the begin- 
 ning, one of the parties may so conduct himself as to give 
 the other the right to have it rescinded. Therefore, by 
 whatever name we now call the contract, it has become 
 really voidable, the same as though it were originally so. 
 Not improperly, therefore, it may be termed voidable ; that 
 is, voidable because of matter subsequent. This sort of 
 voidable contract forms the principal topic under our present 
 sub-title. 
 
 § 675. iElection to avoid or not — (Successive Steps — 
 
 » Nesbitt V. McGehee, 26 Ala. 748; Cutler v. Smith, 43 Vt. 577: Palmer v. 
 Green, 6 Conn. 14 ; Kidder i>. Kidder, 9 Casey, Pa. 268. 
 ' Ante, I 465, 466; Lafferty v. Jelley, 22 Ind. 471. 
 ' Davis V. Townsend, 10 Barb. 333. 
 
 * Ante, I 203. 
 " Ante, \ 426. 
 
 • Eobinson v. Bright, 3 Met. Ky. 80. 
 
 246 
 
RESCISSION AND RELEASE. § 678 
 
 Breach). — When parties have entered into a contract re- 
 quiring successive steps to be taken by each, if one declines 
 or is unable to take his step while the other is ready and 
 willing, the latter may proceed against the former for 
 damages by reason of this breach ; or, in some circumstances, 
 not in all, he may, should he prefer, rescind the contract. 
 He cannot do both.^ 
 
 § 676. Ifature of the Breach. — The breach, to justify 
 a rescission, must be of a dependent covenant, or wilful, or 
 in a substantial part and going to the root of the matter. 
 That it will sustain an action by the injured party is not 
 always sufficient.* It may proceed from either — 
 
 § 677. Inability or Refusal. — Where one of the parties 
 disposes of the thing contracted about or otherwise dis- 
 qualifies himself or becomes unable to perform,^ or in words 
 or by their equivalent in act declines to go on,* the other 
 party may rescind the contract. 
 
 § 678. Kescission before Aflarmance. — One cannot 
 rescind a contract, which, with knowledge that it has been 
 broken, he has affirmed by doing anything in recognition 
 of its continued existence.* 
 
 1 Coddington v. Paleologo, law Eep. 2 Ex. 193 ; Boults v. Mitchell, 3 Harris, 
 Pa. 371; Powell v. Sammons, 31 Ala. 562; Dodge v. Greeley, 31 Maine, 343; 
 Eogers v. Hanson, 35 Iowa, 283 ; Cromwell v. Wilkinson, 18 Ind. 365 ; G-ood- 
 rich V. Lafilin, 1 Pick. 57 ; Pierce v. Duncan, 2 Post. N. H. 18; Mansfield v. 
 Trigg, 113 Mass. 350. 
 
 2 Wright V. Haskell, 45 Maine, 489; Miller v. Phillips, 7 Casey, Pa. 218; 
 Pletcher v. Cole, 23 Vt. 114; Gatlin v. Wilcox, 26 Ark. 309; Selby v. Hutchin- 
 son, 4 Gilman, 319 ; Dodge v. Greeley, 31 Maine, 343 ; Webster v. Enfield, 5 
 Gilman, 298 ; Eeid v. Davis, 4 Ala. 83 ; Simpson v. Crippin, Law Eep. 8 Q. B. 
 14; Luey v. Bundy, 9 N. H. 298; Allen v. Webb, 4 Post. N. H. 278; Preble 
 V. Bottom, 27 Vt. 249 ; Townsend v. Hurst, 87 Missis. 679. 
 
 ' Post, 2 690; Pratt v. Philbrook, 41 Maine, 132; Miller v. Phillips,' 7 Casey, 
 Pa. 218; In re Phoenix Bessemer Steel Co., 4 Ch. D. 108. 
 
 * Bloomer v. Bernstein, Law Rep. 9 C. P. 588 ; Chamber of Commerce v. 
 SoUitt, 43 HI. 519 ; Morgan v. Bain, Law Eep. 10 C. P. 15 ; Suber v. PuUin, 1 
 S. C. 273. 
 
 6 Brinley v. Tibbets, 7 Greenl. 70; Pratt v. Philbrook, 41 Maine, 132 ; Akerly 
 p. Vilas, 21 Wis. 88; ante, 2 206, 656, 658. 
 
 247 
 
§ 681 LAW OF CONTRACTS. 
 
 § 679. statu Quo. — The party rescinding must return 
 the consideration or whatever else he has received under 
 the contract, and otherwise do what will put him and the 
 other party in statu quo, as already explained ; ^ and, if he 
 cannot do this, — as, if he has derived some benefit from 
 the contract, not of a sort to be refunded, — he cannot 
 rescind.* 
 
 § 680. Recover back. — If the case is one permitting 
 rescission, and it has been lawfully made, by the party not 
 in fault, — or, unlawfully, by the other party, — the former 
 may recover back from the latter the consideration, or what- 
 ever else he has paid on the contract ; including compensa- 
 tion for work done, goods delivered, and the like, prior to 
 the rescission.^ But — 
 
 § 681. fey Party in Fault. — A party abandoning his 
 contract without justification,* or for whose fault the other 
 has lawfully rescinded it, stands in a different position. 
 Strictly, he can recover nothing ; because he does not come 
 
 ' Ante § 203, 676 ; California Steam Nav. Co. v. Wright, 8 Cal. 585; Jennings 
 1). G-age, 13 HI. 610 ; Tisdale v. Buckmore, 33 Maine, 461 ; Conner v. Henderson, 
 15 Mass. 319 ; Brown v. Witter, 10 Ohio, 142 ; Croft v. Wilbar, 7 Allen, 248. 
 
 " Barber v. Lyon, 8 Blackf. 215; Barnett v. Stanton, 2 Ala. 181; Desha v. 
 Eobinson, 17 Ark. 228 ; Moore v. Bare, 11 Iowa, 198 ; Burge «. Cedar Bapids, 
 etc.. Railroad, 32 Iowa, 101. 
 
 = Brown v. Mahurin, 39 N. H. 156 ; Drew v. Claggett, 39 N. H. 481 ; Sher- 
 burne ■». Puller, 5 Mass. 133, 139; Kidder v. Hunt, 1 Pick. 328; Crossgrove«. 
 Himmelrich, 4 Smith, Pa. 203 ; Fitch v. Casey, 2 Greene, Iowa, 300 ; Dill ». 
 Wanham, 7 Met. 438; Eandlet v. Herren, 20 N. H. 102; Nash v. Towne, 5 
 Wal. 689; Weatherly «. Higgins, 6 Ind. 73; Hickock v. Hoyt, 33 Conn. 553; 
 Barle v. Bickford, 6 Allen, 549 ; Byers v. Bostwick, 2 Mill, 75 ; Kimball v. 
 Cunningham, 4 Mass. 504; Dubois v. Delaware, etc., Canal, 4 Wend. 285; 
 Barickman v. Kuykendall, 6 Blackf. 22 ; Butts v. Huntley, 1 Scam. 410 ; Cham- 
 berlin v. Scott, 33 Vt. 80; Canada v. Canada, 6 Cush. 15; Feay v. Decamp, 15 
 S. & E. 227 ; Martin v. Eames, 26 Vt. 476 ; Bayliss ». Prictura, 24 Wis. 651. 
 
 * Haslack v. Mayers, 2 Dutcher, 284 ; Plummer v. Bucknam, 55 Maine, 105 ; 
 Wooten o. Head, 2 Sm. & M. 585; Olmstead v. Beale, 19 Pick. 528; Rounds o. 
 Baxter, 4 Greenl. 454; Faxon v. Mansfield, 2 Mass. 147; Ketchum v. Evertson, 
 13 Johns. 359, 365 ; Clark v. School District in Pawlet, 29 Vt. 217; Larkin v. 
 Buck, 11 Ohio State, 561 ; Robinson v. Eaynor, 28 N. Y. 494. 
 248 
 
RESCISSION AND RELEASE. § 682 
 
 into court, as the phrase is, with " clean hands." ^ Yet, in 
 various exceptional circumstances, in spite of this general 
 rule, the other party, who has accepted from him a benefit, 
 must pay for it, though not in fault, and though he who is 
 demanding payment is in the wrong. The limits of this 
 exception are not at all points well defined, and the adjudi- 
 cations are in some measure conflicting ; so that the prac- 
 titioner should carefully examine the decisions in his own 
 State, as he would the statutes, and on this ground tread 
 with caution.* We have seen,* that, in some circumstances, 
 the party in the wrong has a protection in the rule which 
 requires the rescinding party to refund the consideration. 
 
 m. Wrongfully, by one Party, without the other's Fault or 
 
 Consent. 
 
 § 682. Power of the one Party. — It is a proposition 
 sound in principle, and sufficiently supported by authority, 
 though more or less may be found in the books against it, 
 that one party alone, with no consent from the other, who 
 is in no fault, has, at law, the power — not to be exercised 
 without liability for damages , but still the power — to rescind 
 any executory contract. If this were not so, one might be 
 ruined by an undertaking of which a change in circum- 
 stances rendered the performance highly inexpedient or 
 practically impossible.* Thus, — 
 
 1 See post, I 688. 
 
 2 Cardell v. Bridge, 9 Allen, 355 ; Bee Printing Co. v. Hichbom, 4 Allen, 63; 
 Hariston o. Sale, 6 Sm. & M. 634; Clayton v. Blake, 4 Ire. 497; Britton «.' 
 Turner, 6 N. H. 481; Downey v. Burke, 23 Misso. 228; Carroll v. "Welch, 26 
 Texas, 147; Pixler v. Nichols, 8 Iowa, 106; Patrick v. Putnam, 27 Vt 759; 
 Cahill ■». Patterson, 30 Vt. 592 ; Veazie v. Hosraer, 11 Gray, 396 ; Hartwell v. 
 Jewett, 9 N. H. 249; Byerlee v. Mendel, 39 Iowa, 382; Goodwin i>. Merrill, 13 
 Wis. 658 ; Wade v. Haycock, 1 Casey, Pa. 382 ; Lomax v. Bailey, 7 Blackf. 
 699. 
 
 s Ante, ? 679. 
 
 * See cases cited to the next two sections; also New Orleans v. Church of St. 
 Louis, 11 La. An. 244. 
 
 249 
 
§ 686 LAW OF CONTRACTS. 
 
 § 683. Services for Specified Time. — If one employs 
 another for an agreed period, but turns him off before the 
 time has expired, the latter may recover damages for this 
 breach of contract,^ — or, accepting the unauthorized rescis- 
 sion, for what the work is ^orth,^ — yet he cannot lie by 
 and refuse other employment, and compel payment as 
 though the full services were rendered.' 
 
 § 684. Duty of Party not in Fault. — One who receives 
 from the other party to a contract notice of its rescission, is, 
 while entitled to damages if the notice proceeds only from 
 such party's pleasure or necessities, still not justifiable in 
 allowing anything further to be done to bring needless 
 expense. He is even to take affirmative action, if the 
 interests growing out of the rescinded contract so require.* 
 
 § 685. Specific Performance. — The doctrines of this 
 sub-title are to some degree modified in courts of equity, 
 where, in some circumstances, as to some contracts, not all, 
 a specific performance of the thing agreed is enforced.' 
 
 § 686. The Doctrine of this Chapter restated. 
 
 By mutual consent, persons who have made a contract 
 can unmake it ; but one party, without the concurrence of 
 the other, cannot undo what it required two to do. One 
 
 ' Nations v. Cudd, 22 Texas, 550; Fowler i;. Armour, 24 Ala. 194; Davis v. 
 Ayres, 9 Ala. 292t Miller v. Goddard, 34 Maine, 102. 
 
 * Sherman v. Champlain Transp. Co., 31 Vt. 162 ; Britt v. Hays, 21 Ga. 157; 
 Rogers V. Parham, 8 Ga. 190. And see Moulton v. Trask, 9 Met. 577. 
 
 » Ricks V. Yates, 5 Ind. 115 ; Prichard v. Martin, 27 Missis. 305 ; Sherman ». 
 Champlain Transp. Co., supra ; Walworth v. Pool, 4 Eng. 394 ; King v. Steiren, 
 8 Wright, Pa. 99 ; Jones v. Jones, 2 Swan, Tenn. 605 ; Costigan ii. Mohawk, 
 etc.. Railroad, 2 Denio, 609; McDaniel v. Parks, 19 Ark. 671; Children of 
 Israel v. Peres, 2 Coldw. 620. This I understand to be established doctrine, yet 
 it is not recognized in all the cases. See, on this question, besides the above 
 cases, Bradshaw v. Branan, 5 Rich. 465; Cox v. Adams, 1 Nott & McC. 284; 
 Webster v. Wade, 19 Cal. 291 ; Britt v. Hays, 21 Ga. 157 ; Colburn v. Wood- 
 worth, 31 Barb. 381 ; Byrd v. Boyd, 4 McCord, 246. 
 
 * Dillon V. Anderson,' 43 N. Y. 231. 
 ' 1 Story Eq. ^ 712-793. 
 
 250 
 
RESCISSION AND RELEASE. § 686 
 
 party alone, however, can break a contract, by becoming 
 disqualified to perform it, or by refusing. And, though 
 some of the cases seem to hold that, after such refusal or 
 disqualification, and even after notice to the other party that 
 the contract will not be performed, the latter may elect to 
 treat it as continuing, this is contrary to sound reason, to 
 natural justice, and the better adjudications. At law, if a 
 man has broken his agreement, he will be liable to the 
 other party to the extent of what has been suffered, and no 
 more. In equity, there are circumstances in which a specific 
 performance may properly be, and is, enforced. 
 
 When one party has broken his contract without the 
 other's fault,^ the latter may sue the former for the damages 
 suffered ; or, if the parties can be placed in statu quo, 
 he may, should he prefer, return what he has received, and 
 recover in a suit the value of what he has paid or done.. The 
 pursuing of the latter alternative is called a rescinding of the 
 contract. 
 
 251 
 
688 LAW OF CONTRACTS. 
 
 CHAPTER XXXVI. 
 
 THE BREACH AND PERFORBIANCE OF CONTRACTS. 
 
 § 687. Distinctions ^ Wliat for this Chapter. — In the 
 
 last chapter, we saw that there may be rights growing 
 indirectly out of a contract which the parties have rescinded, 
 or which is rescinded by the one seeking their enforcement. 
 They are not for consideration in this chapter. Again, in 
 preceding chapters, we have seen that while a contract is 
 in progress of fulfilment it may be varied by the parties ; 
 so that what is done is not strictly under the original under- 
 taking, but under a new one. In such a case, the new 
 contract^ is the one for contemplation here. The breach 
 and performance, therefore, to be here discussed, are such 
 as take place under a contract, new or old, which the parties 
 treat as subsisting. 
 
 § 688. Elements justifying Suit. — Two elements are 
 essential in every sort of lawsuit by a private person against 
 another ; namely, a right in the plaintiff, and a correlative 
 wrong in the defendant. And the plaintiff must be without 
 fault in the thing of which he complains, and the defend- 
 ant must be infault.^ This, therefore, is the rule in actions 
 upon contracts, — there miist be a performance^ or readiness 
 to perform,* as the particular contract may require, by the 
 plaintiff, and a breach by the defendant. 
 
 1 Hughes V. Prewitt, 5 Texas, 264. 
 ' 1 Bishop Grim. Law, 1 11 ; 2 Bishop Mar. & Div., ? 75. 
 ' Long V. Hartwell, 6 Vroom, 116 ; Allen v. Atkinson, 21 Mich. 351 ; Brown 
 V. Pitch, 4 Vroom, 418 ; Pullman v. Coming, 5 Selden, 93. 
 * Noble V. Edwards, 5 Ch. D. 378, 393 ; Hapgood v. Shaw, 105 Mass. 276 ; 
 252 
 
BREACH AND PEEFOEMANCE. § 692 
 
 § 689. Inability or Befusal. — A common breach is 
 where one is unable or declines to go on with his contract ; ^ 
 or, where, after the other party has performed, he cannot 
 or will not pay the agreed price. ^ Again, — 
 
 § 690. Disqualify Self. — If one voluntarily puts it out 
 of his power to do what he has agreed, he breaks his con- 
 tract, and is immediately liable to be sued therefor, without 
 demand, even though the time specified for performance has 
 not arrived.' Or, — 
 
 § 691. Disqualified wlien Contract made. — If, when 
 he makes a contract, he is, unknown to the other party, 
 disqualified to fulfil it, the breach is simultaneous with the 
 promise, and he may be sued immediately.* In like man- 
 ner, — 
 
 § 692. Wrongful Kescindlngr — Refusal absolute. — 
 When a party exercises the power, already spoken of,* to 
 rescind his contract without right, — that is, declares to the 
 other party his intention not to abide by it, — this is a 
 breach on which the other may bring an immediate suit, 
 without demanding performance, though by the terms of 
 the contract the performance was to be in the future.® To 
 illustrate, — 
 
 Carpenter v. Holcomb, 105 Mass. 280; Bradford v. "Williams, Law Eep.,7 Ex. 
 459; Smith v. Lewis, 24 Conn. 624; Seymour v. Bennet, 14 Mass. 266, 268. 
 
 1 Ante, § 682-684 ; Thompson a. Laing, 8 Bosw. 482 ; Davis v. Crawford, 2 
 Mill, 401. 
 
 » Shackelford v. Barrow, 2 Bay, 91. 
 
 ' Ante, I 677; Boyle v. Guysiger, 12 Ind. 473; Dalamater ». Miller, 1 Cow. 
 75; Lovering o. Lovering, 13 K H. 513; "Webster v. Coffin, 14 Mass. 196; 
 Cooper V. Mowry, 17 Mass. 5, 7 ; Bassett u. Bassett, 55 Maine, 127 ; Smith v. 
 Jordan, 13 Minn. 264; Crist v. Armour, 34 Barb. 378. See McDonald d. 
 Williams, 1 Hilton, 366. 
 
 * Post, 2 693 ; Woods v. North, 6 Humph. 309 ; Harrington t>. Wells, 12 Vt. 505. 
 s Ante, 2 682. 
 
 * Prost V. Knight, Law Kep. 7 Ex. Ill ; HoUoway v. Griffith, 32 Iowa, 409; 
 Bunge V. Koop, 48 N. Y. 225; Crabtree ». Messersmith, 19 Iowa, 179. If, 
 however, the disability is involuntary, it will not be deemed a breach until the 
 time for performance arrives. Heard v. Bowers, 23 Pick. 455. 
 
 253 
 
§ 695 LAW OF CONTHACTS. 
 
 § 693. Breach of Marriage Promise. — If parties are 
 engaged to be married, and it turns out that one of them 
 was, at the time of the engagement, under the disabilities of 
 a prior marriage,^ — or, if one marries afterward another 
 person,* — or breaks off the engagement before the time 
 for its fulfilment,* — the party not in the wrong may 
 immediately sue the other for the breach of promise. 
 Or,— 
 
 § 694. Make Conveyance. — The agreement being that 
 the one party shall convey lands or goods to the other, if 
 the former parts with them to a third person or destroys 
 the goods, the latter may sue him without waiting for the 
 contract time to elapse, and without demanding the convey- 
 ance.* 
 
 § 695. Hindering or Preventing Performance. — For 
 the like reason, a party who prevents the other from per- 
 forming the contract, or hinders him therein, violates it. 
 And the doctrine, which is sound in some circumstances, is 
 often laid down quite broadly, that the one who prevents 
 fulfilment by the other must pay the same as though it were 
 fulfilled.* Also, if performance is a condition precedent, 
 he who prevents it waives the condition.® Even a mere 
 
 1 Blattmacher v. Saal, 29 Barb. 22. If the disability is known to both 
 parties, the promise is void, and no action will lie. Haviland v. Halstead, 34 
 N. Y. 643. For an explanation of this distinction, see ante, g 336-339. And 
 see Blossom i>. Barrett, 37 N. Y. 434. 
 
 > Short V. Stone, 8 Q. B. 358 ; King v. Kersey, 2 Ind. 402 ; Clements v. 
 Moore, 11 Ala. 35. 
 
 » Foster v. Knight, Law Bep. 7 Ex. Ill ; Holloway v. Griffith, 32 Iowa, 409; 
 Burtis V. Thompson, 42 N. Y. 246. See Coil v. Wallace, 4 Zab. 291. 
 
 ' Newcomb v. Brackett, 16 Mass. 161; Heard v. Bowers, 23 Pick. 455, 460; 
 Griffith V. Goodhand, T. Jones, 191 ; Hopkins v. Young, 11 Mass. 302, 306. 
 
 » Majors v. Hickman, 2 Bibb, 217; Carrell v. Collins, 2 Bibb, 429; Marshall 
 tJ. Craig, 1 Bibb, 379. See Blood v. Enos, 12 Vt. 625 ; Devlin v. Second Avenue 
 Railroad, 44 Barb. 81 ; "Wallman v. Society of Concord, 45 N. Y. 485 ; St. Louis 
 r. McDonald, 10 Misso.,609. 
 
 " Dodge V. Rogers, 9 Minn. 223; Jones v. "Walker, 13 B. Monr. 163; Camp 
 V. Barker, 21 Vt. 469 ; Williams v. United States Bank, 2 Pet. 96, 102. 
 254 
 
BREACH AND PERFOBMANCE. § 697 
 
 hindrance maj' be a waiver as to time.^ And plainly one 
 cannot maintain a suit against another for not doing what 
 he put it out of the other's power to do.* But-i- 
 
 § 696. liimits of the Doctrine. — This doctrine cannot 
 properly be carried so far as to work palpable injustice. It 
 needs no argument to show, that, if a man who had promised 
 to pay for a thousand bushels of wheat on delivery, should 
 refuse. to accept it, he could not be made to pay the entire 
 agreed sum, and the other party be permitted to keep his 
 wheat. Or, if one was to have ten thousand dollars for 
 building a house on another's land, the latter, on ordering 
 him off the premises, could not be compelled to pay the 
 whole ten thousand dollars with no benefit conferred.* The 
 true doctrine-, in such a case, has, it is believed, been stated 
 in a previous chapter.* 
 
 § 697. Simultaneous Acts. — If, by the terms of the 
 contract, or its legal construction, the acts of the parties 
 are to be simultaneous, — as, for example, if one is to con- 
 vey land to the other who is to pay for it, — neither can 
 maintain a suit against the other until he has done his part, 
 or offered to do it on performance by the other; and, in 
 some circumstances, or according to some of the authorities, 
 performance by the other must also be demanded.* On 
 principle, a tender of the deed, money, or other thing, and 
 
 1 Ketchum ». Zeilsdorff, 26 Wis. 514. 
 
 * Stewart v. Keteltas, 36 N. Y. 388; McKee v. Miller, 4 Blackf. 222; Parker 
 Vein Coal Co. v. O'Hern, 8 Md. 197; Gibson v. Dunnam, 1 Hill, S. C. 289; 2 
 Chit. Con. 11th Am. ed. 1087. 
 
 ' See, and query, Clendennen v. Faulsel, 3 Misso. 230. 
 
 * Ante, I 682-684. 
 
 6 Fuller V. Hubbard, 6 Cow. 13; Ishmael v. Parker, 13 El. 324; Small v. 
 Beeves, 14 Ind. 163 ; Puller v. Smith, 7 Cow. 53 ; Kanev. Hood, 13 Pick. 
 281 ; Kunkle v. Johnson, 30 111. 328 ; Stokes v. Burrell, 3 Grant, Pa. 241 ; Dana 
 V. King, 2 Pick. 155 ; Brown v. Gammon, 14 Maine, 276 ; Howe v. Huntington, 
 15 Maine, 350 ; Hunt v. Livermore, 5 Pick. 395 ; Perry v. "Wheeler, 24 Vt 286; 
 Savage Manuf. Co. ». Armstrong, 19 Maine, 147 ; Leaird v. Smith, 44 N. Y. 
 618. 
 
 255 
 
§ 699 LAW OF CONTRACTS. 
 
 the keeping of the tender good, should be deemed enough ; 
 unless, from the nature of the thing to be done by the other 
 party, time is required, and then the needful time should be 
 offered also.^ 
 
 § 698. Every Step. — In more general terms, when, on 
 the one side, every step which the contract requires on that 
 side before something is done on the other has been taken, 
 the party of the other side breaks it if he simply neglects to 
 take his step, though no demand on him is made ; but, 
 while any thing, however slight, remains unperformed by 
 the former party, there is no breach by the latter.^ Thus, — 
 § 699. Pay in Specific Articles. — Where one promises 
 another to pay him a sum in such specific articles, or in specific 
 articles at such a time or place, as the latter may determine, 
 or at an indefinite time, the promisee must take the first 
 step, until which the promisor has no occasion to make a 
 tender, and is not suable.^ These conditions attend most 
 contracts in the form of promissory notes payable in specific 
 articles ; whence it has become a soi"t of general rule that 
 such a note does not become payable in money, and the 
 ■^ foundation of a suit, until there have been a demand and 
 refusal.* But the note is sometimes so drawn as not to be 
 
 ' See Gushee v. Eddy, 11 Gray, 502, 503 ; Cobb v. Hall, 33 Vt. 233 ; Biggers 
 V. Pace, 5 Ga. 171 ; Hammond v. Gilmore, 14 Conn. 479. 
 
 ^ Adams v. New York, 4 Duer, 295 ; Helm v. "Wilson, 4 MissO. 41 ; Burke v. 
 Wells, 50 Cal. 218; Watson v. Walker, 3 Fost. N. H. 471; Brewer v. Tysor, 
 3 Jones, N. C. 180; Wagenblast o. McKean, 2 Grant, Pa. 393; Downer v. 
 Frizzle, 10 Vt. 541 ; McCarren o. McNulty, 7 Gray, 139 ; Pratt v. Law, 9 
 Cranch, 456 ; Bersch v. Sander, 37 Misso. 104 ; Niblett v. Herring, 4 Jones, 
 N. C. 262; Bishop v. Newton, 20 111. 175; Abbott v. Gatch, 13 Md. 314; Noble 
 V. James, 2 Grant, Pa. 278; Hill v. Smith, 82 Vt. 433. 
 
 5 Baker b. Stoughton, 1 Oregon, 227; Corbitt v. Stonemetz, 15 Wis. 170 j 
 Newton v. Wales, 3 Rob. N. Y. 453 ; Hambel v. Tower, 14 Iowa, 530; Wear 
 V. Jacksonville, etc., Bailroad, 24 111. 593 ; Morey v. Enke, 5 Minn. 392. But 
 see Bixby v. Whitney, 5 Greenl. 192. 
 
 * Greenwood v. Curtis, 6 Mass. 358, 364 ; Smith v. Leavensworth, 1 Root, 
 209; Deanti. Woodbridge, 1 Root, 191; Johnson v. Baird, 3 Blackf. 153; 
 Stevens v. Adams, 45 Maine, 611; Lobdelln. Hopkins, 5 Cow. 516; Dunni). 
 
 256 
 
BREACH AND PERFORMANCE. § 700 
 
 within this principle, and then an action without demand 
 may be sustained on it, when the time of payment has 
 elapsed, unless the defendant has duly tendered the articles.^ 
 The adjudged cases on this question are not uniformly con- 
 sistent with one another. 
 
 § 700. Pay Money — ("On Demand") K, without 
 
 qualification, one promises to pay money to another, either 
 generally^ or "on demand,"* the money becomes due 
 simultaneously with the promise, — or, if the payment is to 
 be on a future day, it becomes due then, — and, in either 
 case, there being nothing for the promisee to do, the 
 .promisor must find him* if within the State," and tender 
 him the money ; in default whereof a suit may be maintained 
 against him, and no demand in fact is necessary.* 
 
 Marston, 34 Maine, 379 ; Chandler v. Windship, 6 Mass. 310 ; "Wilmouth v. 
 Patton, 2 Bibb, 280; Chambers v. "Winn, Pr. Dec. 2d ed. 166; Gushee v. 
 Eddy, 11 Gray, 502. But see Cobb v. Keed, 2 Stew. 444. 
 
 1 Bernards. Bernard, 1 Lev. 289; Marshall ». Ferguson, 23 Gal. 65 ; Wheeler 
 c. Ga.rsia, 5 Bob. N. Y. 280; Stewart v. Morrow, 1 Grant, Pa. 204; "Wiley v. 
 Shoemak, 2 Green, Iowa, 205; Plowman v. Kiddie, 7 Ala. 775; Miller v. Mo- 
 Clain, 10 Yerg. 245; Vanhooser v. Logan, 3 Scam. 389; Hardeman v. Cowan, 
 10 Sm. & M. 486; Deel v. Berry, 21 Texas, 463; Perry v. Smith, 22 Vt. 301; 
 Fleming v. Potter, 7 Watts, 380; Orr v. Williams, 5 Humph. 423; Peck v, 
 Hubbard, 11 Vt. 612; Chambers v. Harger, 6 Harris, Pa. 15. 
 
 ' Purdy V. Philips, 1 Duer, 369 ; Payne v. Mattox, 1 Bibb, 164 ; Thompson 
 o. Ketcham, 8 Johns. 189 ; Columbia Bank v. Hagner, 1 Pet. 455 ; Bailey v. 
 Clay, 4 Band. 346. 
 
 ' 2 Saund. Wms. ed, 63 d, note ; Omohundro v. Omohundro, 21 Grat. 626 ; 
 Capp V. Lancaster, Cro. Eliz. 518; Cotton v. Beavill, 2 Bibb, 99; Pullen o. 
 Chase, 4 Pike, 210 ; Thomson v. Butler, Cro. Eliz. 721 ; Kingsbury v. Butler, 
 4Vt. 458; Brett v. Ming, 1 Pla. 447. The distinction in the books is, that, 
 "where a mere duty is promised to be paid upon request, there needs no actual 
 request; but, where a collateral sum is promised to be paid upon request, 
 there must be an actual request." Birks v. Trippet, 1 Saund. Wms. ed. 32, 
 83 b. And see Blackwell v. Posters, 1 Met. Ey. 88. 
 
 * Kidwelly v. Brand, Plow. 69, 71; Sage v. Kanney, 2 Wend. 532; Sanden 
 V. Norton, 4 T. B. Monr. 464 ; Pomeroy v. Ainsworth, 22 Barb. 119. 
 
 6 Co. Lit. 210 J; 2 Chit. Con. 11th Am. ed. 1069 ; Littell v. Nichols, Hardin, 
 2d ed. 71 ; Gill v. Bradley, 21 Minn. 15. 
 
 • Langston v. South Carolina Bailroad, 2 S. C. 248 ; O'Connor v. Dingley, 
 26 Cal. 11 ; McDonald v. Gray, 11 Iowa, 508 ; Wheeler v. Garsia, 5 Rob. N. T. 
 280. And see Trinity Church v. Higgins, 48 N. Y. 532. 
 
 " 257 
 
§ 703 LAW OF CONTEACTS. 
 
 § 701. Payable Sunday. — The rule is familiar, that, 
 where a bill or note having days of grace falls due, grace 
 included, on Sunday, it is payable on Saturday.^ But in 
 ordinary contracts, where the element of grace is not recog- 
 nized, the rule, by most opinions, is reversed; Sunday is 
 not counted, and the performance or breach takes place on 
 Monday,'' though some courts hold Saturday to be the day.* 
 
 § 702. Wlien Suit. — To maintain any suit at law, there 
 must be a consummated cause of action when it is com- 
 menced.* And one who is to pay money or do anything 
 else on a particular day, ha^ the whole day to do it in ; so 
 that a suit for the breach cannot be instituted till the next 
 day.* Negotiable paper furnishes a partial exception to this 
 rule ; for, if payment is demanded at a reasonable hour on 
 the last day of grace, and refused, an action may then be 
 commenced ; though, without such demand, it cannot be.* 
 This exception does not extend to money promised on any 
 other sort of contract.' 
 
 § 703. The Doctrine of this Chapter restated. 
 
 If a party is simply unable to perform his contract, — as, 
 if he has not the money to pay, and has no means of getting 
 it, — this does not constitute a breach, justifjdng a suit by the 
 other party, until the time to perform, specified in the con- 
 tract, has elapsed. Inability to do a thing to-day is not the 
 
 ' Famum v. Fowle, 12 Mass. 89 ; Barlow v. Planters' Bonk, 7 How. Missis. 
 129 ; Sanders v. Ochiltree, 5 Port. 73 ; Sheppard v. Spates, 4 Md. 400. 
 
 » Salter v. Burt, 20 Wend. 205 ; Stryker v. Vanderbilt, 3 Dutoher, 68 j 
 Stebbius v. Leowolf, 3 Cush. 137 ; Carothers v. Wheeler, 1 Oregon, 194. 
 
 • Kilgour ti. Miles, 6 Gill & J. 268. 
 
 * Wadley v. Jones, 55 Ga. 329 ; Nickerson v. Babcock, 29 IlL 497 ; Bleviss 
 V. Alexander, 4 Sneed, Tenn. 583. 
 
 6 Estes V. Tower, 102 Mass. 65 ; Davis t>. Eppinger, 18 Cal. 878 ; Thomas v. 
 Shoemaker, 6 Watts & S. 179. 
 
 ' Greeley v. Thurston, 4 Greenl. 479; Bstes t>. Tower, supra; Ammidownii. 
 Woodman, 31 Maine, 580. 
 
 ' Harris v. Blen, 16 Maine, 175. 
 258 
 
BREACH AND PERFOKMANCE. § 703 
 
 sort of demonstration which the law requires of inability to 
 do it to-morrow. But, if one agrees to do what he has not 
 the legal capacity to perform, and the other party is not a 
 partaker with him in the attempt to violate the law, — or 
 if, having the capacity at the time,, he aftei*ward does what 
 takes away the capacity, — or, if he puts the thing con- 
 tracted about beyond his control, so that his inability to 
 perform at the appointed time is now demonstrated in 
 matter of fact, — or, if he signifies to the other party that 
 he will not fulfil his agreement, — in any one of these cases, 
 a breach is committed, and an action may be maintained on 
 behalf of the other party, though the contract time has not 
 arrived. In the ordinary case, as just stated, the ftill 
 period specified by the contract for taking the particular 
 step, a failure in which is alleged as the breach, must have 
 elapsed ; and the suit cannot be commenced until the day 
 after the day of performance. Where the acts are to be 
 simultaneous, so that one party is in equal default with the 
 other when they are not done, neither can maintain a suit 
 till he has taken some step which puts him in the right and 
 the other in the wrong. 
 
 259 
 
§ 706 I^W OF CONTBACIS. 
 
 CHAPTEK XXXVn. 
 
 THIRD PEESONS. 
 
 § 704. In General. — Persons who are not parties to a 
 contract have generally no concern with it, and it has none 
 with them. Each is as though the other were not. But, 
 in the intimate relations which men sometimes sustain to 
 one another, it may be possible for two, in their transactions, 
 to injure a third ; and then, if the injury has proceeded far 
 enough, the law will interfere. Or, a third may assume to 
 act, without authority, for one or both of the parties ; and, 
 out of this, rights may grow. Thus, — 
 
 § 705. Paying supra Protest. — One who accepts and 
 then pays, or pays without accepting, supra protest, a dis- 
 honored bill of exchange, has his remedy over against the 
 drawer or other party for whose honor he interposed, though 
 he was not requested, and was not the agent of such party .^ 
 But this is a peculiarity of the law-merchant. 
 
 § 706. Otherwise paying another's Debt. — In all other 
 contracts, one cannot make another his debtor by paying 
 unauthorized the latter's debt.* At the same time, if the 
 
 » 8 Kent Com. 87; Bayley Bills, 5th Eng. ed. 178, 325, 326 ; Byles Bills, 150- 
 164 ; Leake v. Burgess, 13 La. An. 156. 
 
 ' South Scituate v. Hanover, 9 Gray, 420 ; Junkins v. Union School District, 
 89 Maine, 220; Bancroft v. Abbott, 3 Allen, 524 ; Little v. Gibbs, 1 Southard, 
 211; Jones v. Wilson, 3 Johns. 434; Menderbaok v. Hopkins, 8 Johns. 436; 
 Munroe v. Easton, 2 Johns. Cas. 75 ; Beach v. Vandenburgh, 10 Johns. 361 ; 
 Richardson ». "Williams, 49 Maine, 558 ; "Woodford n. Leavenworth, 14 Ind. 
 811; Oden «. Elliott, 10 B. Monr. 313; Winsoru. Savage, 9 Met. 846; Lewis 
 0. Lewis, 3 Strob. 530 ; Blanchard o. Pirst Association of Spiritualists, 59 
 Maine, 202. 
 260 
 
THIRD PERSONS. § 708 
 
 payment is accepted by the creditor in discharge of the debt, 
 it has that effect in law.^ The doctrine seems to be, that 
 this is a gift from the person paying to the debtdr. 
 § 707. Ratification of Unauthorized Contract: — 
 Makes it good. — But, in this and all other cases wherein 
 one does an unauthorized act for another, if he claims to be 
 the agent of the other, and the act is in a form which would 
 bind the principal were he truly agent, the assumed princi- 
 pal may ratify it, and then it will have the same effect as if 
 the authority had been given in advance." If not performed 
 by the agent as agent, it will not bind the principal ; for a j_ 
 ratification cannot do what a previous authority could not.' 
 Hence, also, a principal cannot ratify an act which he was 
 not himself competent to do when it was done.* 
 
 § 708. With Knowledge. — For a ratification to be effect- 
 ual, it must be either with full knowledge of what has been 
 done ; * " or , " in the words of Willes , J. , " with intention to 
 adopt it at all events and under whatever circumstances ;'" 
 
 * Martin ». Quinn, 37 Cal. 55. In matter of mere pleading, it is said that 
 suicord and satisfaction, where the satisfaction is laid as, from a stranger, is not 
 good. Edgcombe v. Bodd, 6 East, 294 ; Clow v. Borst, 6 Johns. 37 ; Grymeg 
 1!. Blofleld, Cro. Eliz. 541; Daniels v. Hallenbeck, 19 Wend. 408; Stark v. 
 Thompson, 3 T. B. Monr. 296, 302. As to which, and supporting the text, 
 see 2 Chit. Con. 11th Am. ed. 1133. 
 
 * Grant v. Beard, 50 N. H. 129 ; Ryan v. Doyle, 31 Iowa, 53 ; Bronson o. 
 Chappell, 12 "Wal. 681 ; Dresser v. Wood, 15 Ean. 844; Workman ». Camp- 
 bell, 57 Misso. 53 ; Bryan v. Robert, 1 Strob. Eq. 334; Hammond o. Hannin, 
 21 Mich. 374; Wright v. Burbank, 14 Smith, Pa. 247; Williams v. Butler, 35 
 111. 544; Mclntyre v. Park, 11 Gray, 102; Bragg v. Eessenden. 11 HI. 544. But 
 vested rightrof third persons will not be divested. Wood v. McCain, 7 Ala. 
 800; Taylor 1). Robinson, 14 Cal. 396; Eiske v. Holmes, 41 Maine, 441. 
 
 ' Collins V. Suau, 7 Rob. N. Y. 623 ; Commercial, etc., Bank v. Jones, 18 
 Texas, 811. 
 
 * MoCracken u. San Francisco, 16 Cal. 591 ; Ashbury Railway, etc., Co. o. 
 Riche, Law Rep. 7 H. L. 653, 674, 679. 
 
 * Rowan v. Hyatt, 45 N. Y. 138 ; Clarke v. Lyon, 7 Nev. 75; Bray v. Gunn, 
 53 Ga, 144; Owings ». Hull, 9 Pet. 607; Dickinson o. Conway, 12 Allen, 487; 
 Pittsburgh, etc.. Railroad o. Gazzam, 8 Casey, Pa. 340; ante, g 658. 
 
 * Phosphate of Lime Co. v. Green, Law Rep. 7 C. P. 43, 57. 
 
 261 
 
§ 711 LAW OF CONTRACTS. 
 
 lacking which, it may be avoided, at least to the extent of 
 the misapprehension.^ So, — 
 
 § 709! In FuU In the absence of any consent by the 
 
 other party, the ratification must be of the entire unauthor- 
 ized act or of none. ^ Even, — 
 
 § 710. Fraud. — If the act of the unauthorized person 
 was fraudulent, the ratification extends to the fraud, binding 
 the ratifier to its consequences.^ 
 
 § 711. How Ratify The methods of ratification are 
 
 multitudinous. One method is by express authority to do 
 the thing, in terms as though it had not been done.* 
 Another is by accepting and using the avails of the assumed 
 agency ; ^ or by any other conduct, involving rights and in- 
 terests, based on the existence of the assumed agency, and 
 inconsistent with its non-existence.* Hence, bringing a suit 
 on the unauthorized contract is a ratification ; ' and such, in 
 some circumstances, is the consequence of a neglect to 
 repudiate the agent's act.* 
 
 • Miller v. Sacramento, 44 Cal. 166. 
 
 ' Southern Express v. Palmer, 48 G-a. 85; Crawford v. Barkley, 18 Ala. 270; 
 Henderson v. Cummings, 44 111. 325; "Widner v. Lane, 14 Mich. 124; Coleman 
 V. Stark, 1 Oregon, 115. See Bangor Boom Corp. u. Whiting, 29 Maine, 123. 
 
 ' Crans v. Hunter, 28 N. Y. 389 ; Law v. Grant, 37 Wis. 548. See Brook t>. 
 Hook, Law Kep. 6 Ex. 89. 
 
 * Kice V. McLarren, 42 Maine, 157. 
 
 " Ketchum v. Verdell, 42 Ga. 534 ; L3'man v. Norwich University, 28 Vt. 
 560. 
 
 » Maddux v. Bevan, 39 Md. 485 ; Hankins v. Baker, 46 N. Y. 666 ; Doughaday 
 V. Crowell, 3 Stock. 201 ; Skinner v. Dayton, 19 Johns. 513 ; Perkins v. Mis- 
 souri, etc.. Railroad, 55 Misso. 201. See Fried v. Royal Ins. Co., 50 N. Y. 243 ; 
 White V. Sanders, 32 Maine, 188. 
 
 ' Beloit Bank v. Beale, 34 N. Y. 473 ; Sutton v. Cole, 3 Pick. 232 ; Dodge ». 
 Lambert, 2 Bosw. 570; Hampshire v. Eranklin, 16 Mass. 76, 87; Corser v. Paul, 
 41 N. H. 24; Franklin v. Bzell, 1 Sneed, Tenn. 497; Walker v. Mobile, etc., 
 Railroad, 34 Missis. 245. See St. Mary's Bank v. Calder, 3 Strob. 403. 
 
 8 Brigham v. Peters, 1 Gray, 139; Lindsley v. Malone, 11 Harris, Pa. 24; 
 Bray v. Gunn, 53 Ga. 144; Ward v. Williams, 26 HI. 447; Law v. Cross, 1 
 Black, 533 ; Owsley v. Woolhopter, 14 Ga. 124. See Clarke v. Meigs, 10 Bosw. 
 337 ; Reese v. Medlock, 27 Texas, 120. 
 262 
 
THIRD PERSONS. § 713 
 
 § 712. Conveyances to defraud Creditors: — 
 Between the Parties. — If two persons conspire to cheat 
 a third, or the creditors of one of them, this conspiracy, may 
 be even indictable ; ^ and, whether in a particular instance 
 it is or not, it is against good morals and the policy of the 
 law. Therefore a court will not enforce it.* On this prm- 
 ciple, where one conspirator conveys goods to another to 
 defraud the former's creditors, neither the goods can be 
 reclaimed nor can an executory promise to pay for them be 
 enforced ; but, the parties being equally in the wrong, the 
 law will not interpose to assist either.^ By some courts, 
 however, this doctrine is qualified to the extent, that, as 
 the creditors alone are entitled to complain, while they 
 acquiesce, the contract, whether executory or executed, will 
 be deemed good between the parties.* The latter view is 
 supported by reasoning of considerable strength, and per- 
 haps by the greater number of adjudged cases.* It practi- 
 cally concerns only executory promises. By either view, 
 the executed conveyance is good as between the parties.* 
 
 § 713. As to the Creditor. — A creditor may always 
 avoid a conveyance which his debtor has made to a co-con- 
 spirator, to cheat him." Such is the doctrine of the common 
 law, and it is confirmed, if not extended, by the — 
 
 1 2 Bishop Grim. Law, | 185, 198-214. 
 " Ante, g 457 et seq. ; 480. 
 
 ^ Ante, I 348 ; Ager v. Duncan, 50 Cal. 325 ; Heineman v. Newman, 65 Ga. 
 262; Harwood v. Knapper, 50 Misso. 456 ; Burleigh a. White, 64 Maine, 23. 
 
 * Harvey v. Vamey, 98 Mass. 118 ; Van "Wy ». Clarlt, 50 Ind. 259 ; Dietrich 
 V. Koch, 35 "Wis. 618; Eoberts v. Lund, 45 Vt. 82; Hess v. Final, 32 Mich. 
 515. And see Noble v. Noble, 26 Ark. 317. 
 
 ^ I have not deemed it necessary to refer to any considerable proportion of 
 the numerous cases, as the reader will necessarily consult those of his own 
 State. 
 
 * And see Fivaz v. NichoUs, 2 C. B. 501 ; Begbie v. Phosphate Sewage Co., 
 Law Eep. 10 Q. B. 491, 499, 500. 
 
 ' Lowiy V. Pinson, 2 Bailey, 824 ; Ludlow v. Gill, 1 D. Chip. 49 ; Fitzsim- 
 mons V. Joslin, 21 Vt. 129 ; Drummond v. C'ouse, 39 Iowa, 442 ; Bowden v. Bow- 
 den, 75 111. 143 ; Means v. Feaster, 4 S. C. 249. And see Loeschigk u. Bridge, 
 42 N. Y. 421 ; Smith v. Rumsey, 33 Mich. 183 ; Barber ». Terrell, 54 Ga. 146. 
 
 2(53 
 
§ 716 LAW OF CONTRACTS. 
 
 §714. Statutes against Fraudulent Conveyances. — The 
 
 principal one of these statutes, of English origin, is 13 Eliz. 
 c. 5, and it is common law in our States.^ But this subject 
 is not quite within the scope of the present volume. 
 
 § 715. Other Interests of Third Persons. — A minute 
 examination might bring to view some other interests of 
 third persons in contracts to which they are not parties. 
 But the foregoing are the leading ones ; and, at least, are 
 sufficient in illustration of the general doctrine. 
 
 § 716. The Doctrine of this Chapter restated. 
 
 In general, persons who are not parties to a contract have 
 no concern with it. But privies — such as heirs, executors, 
 grantees, and the like^ — stand, for many purposes, in the 
 shoes of the original party. And, though one is not a 
 privy, — as, in the case of a creditor, and a conveyance 
 made to defraiid him, — he may be injuriously affected by 
 the contract, so that he can even avoid it. But one who 
 has no interest cannot interfere with the contracts of other 
 people. Men may do voluntary acts of benevolence, which, 
 when accepted, the law will confirm. Therefore, if one 
 voluntarily, and without authority, undertakes to confer a 
 benefit on another by acting as his agent, the latter may 
 accept the benefit and ratify the agent's act. All things are 
 then the same, at least between the parties, as though the 
 authority had existed when the contract was made. 
 
 1 See, for a considerable discussion of this subject, 1 Bishop Mar. Women, 
 g 735-761 ; and, of 27 Eliz. c. 4, see lb. § 762-774. 
 
 2 " There are several kinds of privies ; namely, privies in blood, as the heir 
 is to the ancestor ; privies in represeptation, as is the executor or administrator 
 to the deceased ; privies in estate, as the relation between the^ doner and donee, 
 lessor and lessee; privies in respect to contracts; and privies on account of 
 estate and contract together." Bout. Law Diet., "Privies." And see Toml. 
 Law Diet., "Privies," 
 
 264 
 
CONFLICT OF LAWS. § 719 
 
 CHAPTER XXXVm. 
 
 THE CONFLICT OF LAWS AS TO CONTRACTS. 
 
 J 717,718. Introduction. 
 719-736. The Law. 
 737-743. The Procedure. 
 
 744. Doctrine of the Chapter restated. 
 
 § 717. Nature of the Subject. — The subject of the con- 
 flict of laws is of wide extent iu our legal system . But of 
 the doctrines which pertain specially to the law of contracts, 
 the leading ones are simple, and they maybe shortly stated. 
 
 § 718. How the Chapter divided. — There is, on this 
 topic, a broad distinction between law and procedure. We 
 shall, therefore, consider, I. The Law ; II. The Procedure. 
 
 I. The Law. 
 
 § 719. licx Loci — Lex Fori. — A court, called upon to 
 enforce a contract entered into in another State or country, 
 looks to the law of the place where it was made to determine 
 its validity,^ — to the law of the locality in which it was 
 meant to be performed to ascertain its meaning,^ — and to 
 the law under which the tribunal sits for the procedure and 
 whatever else is connected therewith.^ But these proposi- 
 tions are subject to exceptions and explanations, which, 
 
 J 
 
 ' Evans v. Anderson, 78 Dl. 558 ; Collins Iron Co. v. Burkam, 10 Mich. 283 ; 
 
 Evans v. Kittrell, 83 Ala. 449. 
 2 Post, I 731-733. \ 
 
 ' Ex parte Melboum, Law Eep. 6 Ch. Ap. 64, 69 ; Trimbey v. Vignier, I 
 
 Bing. N. C. 151, 158; post, g 737-743. 
 
 265 
 
§ 723 LAW OF CONTRACTS. 
 
 together with a more exact statement of the doctrine itself, 
 will now be given. 
 
 § 720. Valid where made: — 
 
 Valid everywliere. — A contract valid by the laws of the 
 State or country in which it is made, is, as a general rule, 
 subject to some exceptions, held to be good also in any 
 other State or country whose courts are called upon to 
 enforce it ; even though it would be void had it been entered 
 into, under the same forms, in the latter locality.^ Thus, — 
 
 § 721. Usury. — The rates of interest and the conse- 
 quences of taking too much vary in the different States. 
 And, if a contract reserving interest on money is good in 
 the State wherein it is made, it will be enforced by the 
 courts of another State in which, had it there been entered 
 into, it would be void for usury.* So, — 
 
 § 722. Written or Oral. — If, in the State or country 
 where a contract is made, it is good though not in writing, 
 it will be enforced in another State or country by whose 
 statutes such a contract, to be valid, must be written.^ 
 
 § 723. Exceptions. — The exceptions to the rule ex- 
 plained in the last three sections are, "that," in the lan- 
 guage of Fowler, J., "contracts which are in evasion or 
 fraud of the laws of a country, or of the rights or duties of 
 its subjects ; which are against good morals, or against relig- 
 ion, or against public rights ; and those opposed to the 
 national policy or national institutions ; are deemed nullities 
 
 ' Greenwood v. Curtis, 6 Mass. 358 ; Carnegie v. Morrison, 2 Met. 381, 387, 
 889; Stebbins v. Leowolf, 8 Cush. 187; Blanchard v. Russell, 13 Mass. 1, 4; 
 In re Murray, 3 Bankr. Eeg. 765 ; Adams v. Gay, 19 Vt. 358 ; Crosby v. Berger, 
 3 Bdw. Ch. 538 ; Groves v. Nutt, 13 La. An."ll7 ; Huey's Appeal, 1 Grant, 
 Pa. 61. 
 
 ' Philadelphia Loan Co. v. Towner, 13 Conn. 249 ; De "Wolf o. Johnson, JO 
 "Wheat. 367 ; Commercial Bank v. King, 2 La. An. 457 ; Eobb v. Halsey, 11 
 Sm. & M. 140; Bavis v. Garr, 2 Seld. 124; Levy v. Levy, 28 Smith, Pa. 507. 
 
 ' Scudder v. Union National Bank, 91 U. S. 406 ; Forward v. Harris, 30 
 Barb. 338 ; Denny v. "Williams, 5 Allen, 1 ; Carrington v Brents, 1 McLean, 
 167. See post, J 729. 
 266 
 
CONFLICT OF LAWS. § 726 
 
 in every country affected by such considerations, though 
 they may be valid by the laws of the place where they are 
 made."^ And, — 
 
 § 724. Meant to be perfonned In another State. — In 
 a matter of ordinary contract, contrary in some degree to 
 the rule in marriage,* no court will allow the laws under 
 which it sits to be intentionally evaded or overridden. If, 
 therefore, parties in one State make a contract which in its 
 nature must be performed in another, — or which, in fact, 
 they mean shall be so performed, as shown by its terms, or 
 by any permissible oral evidence, — the tribunals of the 
 latter locality will not give it effect, unless it is valid as 
 tested by their own domestic laws.' Still it should be 
 remembered, that — 
 
 § 725. Such Contract under Liex Ijoci. — Even such a 
 contract cannot be enforced unless it is valid — or, perhaps 
 more accurately, unless it is not invalid — by the law of the 
 place where it is made.* But it is not ordinarily invalid 
 there, though contrary to the general law there prevailing.' 
 For example, — 
 
 § 726. Usury. — If, in State A, it is contrary to law to 
 pay more than six per cent interest, so that a promise to 
 pay more is void, this does not render void a promise, made 
 in State A, to pay more in State B, whose laws permit more. 
 
 1 Bliss ». Brainard, 41 N. H. 256, 261. And see 2 Bishop Mar. "Women, J 
 577 ; Commonwealth v. Aves, 18 Pick. 193 ; Smith v. Godfrey, 8 Fost. N. H. 
 379 ; Davis v. Bronson, 6 Iowa, 410; Phinney v. Baldwin, 16 111. 108 ; Chewning 
 V. Johnson, 5 La. An. 678; Greenwood v. Curtis, 6 Mass. 358, 877; Windsor 
 V. Jacoh, 2 Tyler, 192. 
 
 " 1 Bishop Mar. & Div., g 355-389 ; 2 Bishop Mar. "Women, g 579 et seq. 
 
 ' Lewis V. Headley, 36 HI. 433 ; Carneal v. Day, Litt. Sel. Cas. 492 ; Maguiro 
 V. Pingree, 30 Maine, 508 ; Kanaga v. Taylor, 7 Ohio State, 134, 142 ; Thompson 
 V. Ketcham^ 4 Johns. 285 ; McCandlish v. Cruger, 2 Bay, 377 ; Jewell v. "Wright, 
 SON. T. 259; Touro v. Cassin, 1 Nott & McC. 173; Strieker v. Tinkham, 35 
 Ga. 176 ; "Wooten v. Miller, 7 Sm. & M. 380. 
 
 * Post, g 561 ; Dacosta v. Davis, 4 Zab. 319. 
 
 » 2 Bishop Mar. "Women, g 581. 
 
 267 
 
§ 728 LAW OF CONTRACTS. 
 
 Hence such a promise, in a fair transaction, not made in 
 evasion of any law, is good in both States.^ 
 
 § 727. Invalid where made: — 
 
 Invalid everywhere. — If a contract is really invalid in 
 the State or country where it is made, and not merely 
 so in appearance, it is invalid everywhere. And this 
 rule, unlike its counterpart,^ does not admit of 'exceptions.' 
 Thus, — 
 
 § 728. Unstamped — (Revenue Lavps). — If, in the coun- 
 try where a written contract is made, it is void for the want 
 of a stamp, it will be void in any other country in whose 
 courts it is sought to be enforced.* True, statutes requiring 
 stamps are revenue laws ; and the doctrine is sometimes 
 stated brpadly, that the courts of one country will not take 
 cognizance of the revenue laws of another.* This is not so 
 universally ; while yet it is probably established, that, if a 
 contract, entered into in one country to take effect in 
 another, is violative of the revenue laws of the latter, but 
 not otherwise immoral or against public policy, it will be 
 upheld in the former country.® As to a promissory note. 
 
 ' Junction Kailroad v. Ashland Bank, 12 Wal. 226 ; Parham v. Pulliam, 5 
 Coldw. 497; Martin v. Martin, 1 Sm. & M. 176; Senter v. Bowman, 5 Heisk. 
 14, 16; Duncan v. Helm, 22 Las An. 418; Miller v. Tiffany, 1 Wal. 298; Pratt 
 V. Adams, 7 Paige, 615 ; Roberts v. McNeely, 7 Jones, N. C. 506 ; Smith ». 
 Muncie National Bank, 29 Ind. 158 ; Arnold v. Potter, 22 Iowa, 194 ; Kennedy ». 
 Knight, 21 Wis. 340; Eobb v. Halsey, 11 Sm. & M. 140. 
 
 = Ante, 2 720. 
 
 ' Bliss V. Brainard, 41 N. H. 256, 261 ; Dunscomb v. Bunker, 2 Met. 8 ; Palmer 
 V. Tarrington, 1 Ohio State, 253, 261 ; Shelton v. Marshall, 16 Texas, 344, 353; 
 Morris Run Coal Co. v. Barclay Coal Co., 18 Smith, Pa. 173 ; Ford v. Buckeye 
 State Ins. Co., 6 Bush, 133 ; Moore v. Clopton, 22 Ark. 125; McAllister v. Smith, 
 17 m. 328; Titus v. Scantling, 4 Blackf. 89; Pearl v. Hansborough, 9 Humph. 
 426; Thompson v. Ketcham, 8 Johns. 190. 
 
 * Alves V. Hodgson, 7 T. E. 241, 2 Esp. 528; Bristow v. Sequeville, 5 Ex ch. 
 275. See Wynne v. Jackson, 2 Russ. 351 ; Skinner v. Tinker, 34 Barb. 333. 
 
 5 Ivey V. Lalland, 42 Missis. 444 ; Kohn «. The Renaisance, 5 La. An. 25. 
 
 ' 2 Parsons Con. 5th ed. 754; 2 Chit. Con. 11th Am. ed. 987; Merchants' 
 Bank v. Spalding, 5 Seld. 53, 63 ; Kohn v. The Renaisance, supra. 
 268 
 
CONFLICT OP LAWS. § 731 
 
 executed abroad without a stamp, for which reason it was 
 void where made, Lord Kenyon, C. J., observed: "It is 
 said that we cannot take notice of the revenue laws of a 
 foreign country ; but I think we must resort to the laws of 
 the country in which the note was made ; and, unless it be 
 good there, it is not obligatory in a court of law here."^ 
 Agam, — 
 
 § 729. Void as Verbal. — If, where an agreement is 
 made, it is void by the statute of frauds because not in 
 writing, it will be also adjudged void in another State, by 
 whose differing statute it would not have been condemned 
 had it been entered into there. ^ And, — 
 
 § 730. Foreign Endorsement. — Where a bill of exchange 
 has been endorsed abroad, in a form which would pass the 
 title to the holder if it had been done here, yet which was 
 inadequate by the foreign law, the holder cannot maintain 
 upon it a suit in our courts.^ 
 
 § 731. The Interpretation: — 
 
 By Law of Place of Performance. — The meaning and 
 operation of every contract are to be determined by the law 
 of the State or country in which, when it was made,* it was 
 by its terms," or in the contemplation of the parties, to be 
 performed. This rule applies equally to contracts entered 
 into in a locality other than that of the intended perform- 
 
 * Alves B. Hodgson, supra, at p. 243 of 7 T. K. 
 
 * AUshouse v. Ramsay, 6 Whart. 331. See ante, \ 728. 
 
 » Trimbey ». Vignier, 1 Bing. N. C. 151, 4 Moore & S. 695, 6 Car. & P. 25. 
 SeeKoosa v. Crist, 17 111. 450; "Woods «. Ridley, 11 Humph. 194; Hirschfeld 
 V. Smith, Law Rep. 1 C. P. 340; Levy v. Levy, 28 Smith, Pa..507; Dundas v. 
 Bowler, 3 McLean, 397 ; Carlisle v. Chambers, 4 Bush, 268 ; Trabue v. Short, 
 18 La. An. 257; Dow v. Rowell, 12 N. H. 49; Lee v. Selleok, 83 N. Y. 615; 
 Hatcher v. McMorine, 4 Dev. 122 ; King o. Doolittle, 1 Head, 77 ; Stanford ». 
 Pruet, 27 (Ja. 243 ; Young i>. Harris, 14 B. Monr. 556. 
 
 * HoUomon v. Hollomon, 12 La. An. 607. 
 
 * Ooddin v. Shipley, 7 B. Monr. 575; Broadhead v. Noyes, 9 Misso. 56; 
 Dorsey v. Hordesty, 9 Misso. 157 ; Sherman v. G-assett, 4 G-ilman, 521. 
 
 269 
 
§ 733 LAW OF CONTKACTS. 
 
 ance,' and in the same locality.^ Prima facie, and in the 
 absence of express terms, the performance is, within this 
 rule, to be where the making has been;^ but, contrary to 
 this, the rules of evidence will, in some circumstances, 
 permit another place to be shown as within the contempla- 
 tion of the parties, or to be presumed.* 
 
 § 732. Part by One Law, and Part by anotber. — A 
 contract, therefore, may be such that it will be interpreted 
 in' part by the law of one State and in part by that of 
 another.* As, if, being made in one State, it is for the 
 purchase and sale of land in another, — and the money is 
 to be paid in the former State, while the conveyance is 
 necessarily in the latter, — the law of the latter will regulate 
 the question of title, and of the former the question of the 
 effect of a failure of consideration.^ 
 
 § 733. Real and Personal, distinguisbed — Infancy 
 and Majority. — The title to lands depends on the law 
 of the State in which they are situated,^ but personal 
 property has no situs.^ Now, in most of our States, girls 
 are infants until twenty-one years old, as at common law ; 
 but, in some, their majority is by statute fixed at eighteen.' 
 Plainly a girl at eighteen, in a State of the latter sort, 
 
 ' Cox V. United States, 6 Pet. 172, 202, 203 ; De La Vega v. Vianna, 1 B. & 
 Ad. 284 ; Carnegie v. Morrison, 2 Met. 881, 389 ; Howard v. Branner, 28 La. 
 An. 369; Allen v. Bratton, 47 Missis. 119; Herschfeld v. Dexel, 12 Ga. 582; 
 Boyd V. Ellis, 11 Iowa, 97. 
 
 ' Benners v. Clemens, 8 Smith, Pa. 24 ; Golson ». Ebert, 52 Misso. 260. 
 
 ' De Sobry v. De Laistre, 2 Har. & J. 191 ; Benners v. Clemens, supra. 
 
 • See the foregoing cases cited to this section ; also Fisher v. Otis, 8 Chand. 
 83; Brown v. Freeland, 34 Missis. 181. 
 
 ' Pomeroy v. Ainsworth, 22 Barb. 118. 
 
 • Glenn v. Thistle, 23 Missis. 42. 
 
 ' Brodie v. Barry, 2 Ves. & B. 127, 131; Elliott o. Minto, 6 Madd. 16; Kling 
 V. Sejour, 4 La. An. 128; Clopton v. Booker, 27 Ark. 482; 2 Bishop Mar. 
 Women, § 575. 
 
 " Partee v. Silliman, 44 Missis. 272. 
 
 » Ante, 2 260, 261. 
 270 
 
CONFLICT OF LAWS. § 736 
 
 cannot make a valid deed of real property lying in a State 
 of the former sort ; ^ yet she can convey her personal effects 
 there.'' The principle on which this distinction rests, is of 
 wide application, and of prime importance. But, as affect- 
 ing real estate, there are many contracts which are deemed 
 personal ; to be governed, therefore, by the law of the State 
 where made, and to be enforced in any locality.' 
 
 § 734. Discharge of Contract: — 
 
 At Place where made. — A contract, discharged by the 
 laws of the State or country in which it was made, and 
 where it was meant to be performed, is no longer binding 
 elsewhere.* But, — 
 
 § 735. At another Place. — Under some circumstances, 
 not all, a discharge in another State or country will not be 
 elsewhere valid.' * 
 
 § 736. In General — (Bankruptcy Laws). — This is one 
 of the questions under the bankruptcy and insolvency 
 laws, — not here to be discussed.* 
 
 ' Bamum v. Barnum, 42 Md. 251. And see White v. Howard, 46 N. T. 144. 
 
 * Huey's Appeal, 1 Grant, Pa. 51. 
 
 3 Gardner v. Ogden, 22 N. T. 327; Mott v. Coddington, 1 Bob. N. Y. 267j 
 Jackson v. Hanna, 8 Jones, N. C. 188 ; New York v. Dawson, 2 Johns. Gas. 
 835; Low v. Hallett, 2 Gaines, 374; Henwood o. Gheeseman, 8 S. &K. 500, 
 £03; Osmond v. Flournoy, 34 Ga. 509; Doulson v. Matthews, 4 T. E. 503. 
 
 * "Warder v. Arell, 2 Wash. Va. 282; Blanchard v. Kussell, 13 Mass. 1; 
 Green v. Sarmiento, Pet. G. C. 74 ; Poe v. Duck, 5 Md. 1 ; Le Boy v. Grown- 
 inshield, 2 Mason, 151. 
 
 ' Prentiss v. Savage, 13 Mass. 20; Ingraham v. Qeyer, 13 Mass. 146 ; Tappan 
 r. Poor, 15 Mass. 419. 
 
 6 See Met. Gon. 317 et seq. In Ellis v. McHenry, Law Eep. 6 C. P. 228, 234, 
 Bovill, C. J., states the English doctrine to be, that, first, "a debt or liability- 
 arising in any country may be discharged by the laws of that country, and that 
 such a discharge, if it extinguishes the debt or liability, and does not merely 
 interfere with the remedies or course of procedure to enforce it, will be an 
 effectual answer to the claim, not only in the courts of that country, but in 
 every other country. This is the law of England, and is a principle of private 
 international law adopted in other countries." Beferring to Burrows v. Je- 
 iiiino,2Stra. 733; Ballantineu. Gelding, Cooke's Bk. Law, 499; Potter v. Brown, 
 
 271 
 
§ 738 LAW OF CONTRACTS. 
 
 II. The Procedure. 
 
 § 737. Lex Fori. — Every court has its own course of 
 procedure, to which all litigants must conform, whether the 
 cause of action arose at home or abroad. Hence the rule is 
 universal, that, though the lex loci, as it is termed, regulates 
 the right under a contract, for the remedy we look to the 
 lex fori; in other words, the proceedings to enforce it are 
 regulated by the laws of the country in which they are car- 
 ried on.^ And if, from the peculiar nature of the right, 
 there is no adequate procedure known to the court, the con- 
 tract will practically be nuU.^ To illustrate, — 
 
 § 738. Specialty or Simple. — If a contract is in a form 
 to be a specialty in the State where made, but not in the 
 State where its enforcement is sought, or if it is the 
 reverse of this, — as, where the signature is followed by a 
 scroll, which in some States is deemed a seal and in others 
 
 5 East, 124 ; Odwin v. Forbes, Buck, 57 ; Quinlin v. Moisson, 1 Knapp, 265, 
 266, note ; Gardiner v. Houghton, 2 B. & S. 743 ; Phillips -u. Eyre, Law Bep. 
 
 6 Q. B. 1, 28. " Secondly, as a general proposition, . . . the discharge of a 
 debt or liability by the law of a country other than that in which the debt arises, 
 does not relieve the debtor in any other country." Referring to Smith o. 
 Buchanan, 1 East, 6 ; Lewis v. Owen, 4 B. & Aid. 654 ; Phillips v. Allan, 8 B. & 
 C. 477 ; Bartley v. Hodges, 1 B. & S. 375. " But, thirdly, where [as in the case of 
 England and her colonies] the discharge is created by the legislature or laws of a 
 country which has a paramount jurisdiction over another country in which the 
 debt or liability arose, or by the legislature or laws which govern the tribunal 
 in which the question is to be decided, sUch a discharge may be effectual in both 
 countries in the one case, or in proceedings before the tribunal in the other 
 case." 
 
 ' Laird v. Hodges, 26 Ark. 356 ; Alexandria Canal v. Swann, 5 How. U. S. 
 83 ; Smith v. Atwood, 3 McLean, 545 ; McKissick v. MoKissick, 6 Humph. 
 75 ; Partee v. Silliman, 44 Missis. 272 ; Don v. Lippman, 5 CI. & P. 1 ; Scoville 
 V. Canfield, 14 Johns. 338 ; Mathuson v. Crawford, 4 McLean, 540 ; Broadhead 
 I).' Noyes, 9 Misso. 56. 
 
 » 2 Bishop Mar. 'Women, J 565, 567 ; Commonwealth v. HoUoway, 1 S. & K. 
 392. And see Lessley ti. Phipps, 49 Missis. 790. 
 272 
 
CONFLICT OF LAWS. § 743 
 
 is not, — the suit upon it must be adjusted to the sort of con- 
 tract which it is by the rules prevailing in the State where 
 the action is brought.^ Or, — 
 
 § 739. Arrest. — If, by the law of the place of the con- 
 tract, the party to be sued cannot be arrested or imprisoned, 
 or if he has there been freed from his original liabilty to 
 arrest, — as, under insolvent laws which discharge the per- 
 son of the debtor but not the debt, — he may be arrested in 
 a suit upon it in another State or country, where arrest is 
 permitted by the general law.'' Again, — 
 
 § 740. Corporation or Partners. — Persons are to be 
 sued as a corporation or as partners according as they are 
 the one or the other by the law of the place of the suit, 
 rather than of the place of the contract.* And, — 
 
 § 741. iDterest. — If interest is adjudged as damages, — 
 not speaking now of interest payable under the contract, — 
 the rate will be governed by the law of the place of the suit.* 
 So — 
 
 § 742. Set-off. — A set-oflf, not allowable by the law of 
 the place of the contract, may be introduced in defence 
 when such proceeding accords with the law of the forum.* 
 Also — - ' 
 
 § 743. litmitations. — The statute of limitations of the 
 State where the suit is carried on, not of the State of the 
 contract, prevails ; so that, though the action is barred by 
 lapse of time in the latter locality, it is maintainable in any 
 
 » Le Eoy v. Beard, 8 How. U. S. "JSl ; McClees v. Burt, 6 Met. 198 ; Andrews 
 V. Hemot, 4 Cow. 508; Trasher v. Everhart, 3 Gill & J. 234; "Warren v. 
 Lynch, 5 Johns. 239 ; United States Bank v. Donally, 8 Pet 361 ; Douglas v. 
 Oldham, 6 N. H. 150. And see "Watson v. Brewster, 1 Barr, 381 ; Adam o. 
 Kerr, 1 B. & P. 360. 
 
 2 Ayres v. Audubon, 2 Hill, S. C. 601 ; "Whittemore v. Adams, 2 Cow. 626; 
 De La Vega v. Vianna, 1 B. & Ad. 284; Imlay v. EUefsen, 2 East, 453. 
 
 s Liverpool Ins. Co. v. Massachusetts, 10 "Wal. 566; Taft v. "Ward, 106 Mass. 
 518. See Bullock v. Caird, Law Eep. 10 Q. B. 276. 
 
 * Goddard v. Foster, 17 "Wal. 123, 143. 
 
 ' Davis V. Morton, 5 Bush, 160, 164. 
 
 273 
 
 18 
 
§ 744 LAW OP CONTEACTS. 
 
 other State or country by whose laws it is not likewise 
 barred.^ We have seen, however,* that, if the contract has 
 been discharged by the law of the place where made, — an 
 effect not produced by ordinary statutes of limitation,* — 
 it cannot be enforced elsewhere.* 
 
 § 744. The Doctrine of this Chapter restated. 
 
 A' judicial tribunal should, in the decision of every ques- 
 tion, follow the laws prescribed for it by the governmental 
 power under which it sits. But there is a comity of nations, 
 as the term is, by which it has become customary for the 
 various governmental powers to respect one another's laws ; 
 so that, if a contract made in one country is drawn in ques- 
 tion in another, the tribunals of the latter will, in the absence 
 of an express statutory inhibition, accept the foreign law as 
 the doniestic rule by which the foreign contract is to be 
 measured and its validity determined.* But the foreign 
 procedure cannot prevail ; because courts must have their 
 own forms, and it would be both inconvenient and subver- 
 sive of domestic justice to adopt the foreign forms. Nor 
 will they follow the foreign law in any case where such fol- 
 lowing would be subversive of the domestic. In the inter- 
 pretation of a contract, the place of intended performance, 
 whether at home or abroad, will furnish the rule ; because 
 thus the real intent of the parties will be carried into effect. 
 
 • British Linen Co. v. Drummond, 10 B. & C. 903 ; Jones ». Jones, 18 Ala. 
 248; Buggies v. Keeler, 3 Johns. 261 ; Pegram v. Williams, 4 Rich. 219; Wat- 
 son V. Brewster, 1 Barr, 381. See Norton v. Sterling, 15 La. An. 399 ; Petchell 
 V. Hopkins, 19 Iowa, 531 ; Hale v. Lawrence, 1 Zab. 714. 
 
 ' Ante, g 568. 
 » Ante, i 447. 
 
 * 2 Parsons Con. 5th ed. 691 and note. 
 » 1 Bishop Mar. & Div. J 867. 
 
 274 
 
CfOLLATERAL AND SUPPLEMENTAL. § 747 
 
 CHAPTEE XXXIX. 
 
 COLLATERAL AND SUPPLEMENTAL QUESTIONS. 
 
 J 745-746. General Views and Introduction. 
 
 747-752. The Element of Time. 
 
 753-755. Damages liquidated for the Violation. 
 
 756-759. Penalties in Contracts. 
 
 760-766. Delivery of the "Written Instrument. 
 
 767. Doctrine of the Chapter restated. 
 
 § 745. In General. — The elucidations of the foregoing 
 chapters have brought to view most of the distinctive prin- 
 ciples of the law of contracts. But, this department of the 
 law being connected with other departments, not unfre- 
 quently questions arise as to the application of the principles 
 at the points of connection. And, in the pure law of con- 
 tracts, there are further questions as to the application of 
 the principles to particular complications of facts. There 
 also remain a few doctrines of a general nature, not ex- 
 plained in the foregoing chapters. Let us here call to mind 
 some further doctrines ; not attempting, however, absolutely 
 to exhaust the subject. 
 
 § 746. How the Chapter divided. — We shall consider, 
 I. The Element of Time in a Contract ; II. Contracts with 
 Liquidated Damages ; that is, specifying what Damages 
 shall be paid for their Violation; III. Penalties in Con- 
 tracts ; IV. The Delivery of the Written Instrument. 
 
 I. The Element of Time in a Contract. 
 
 § 747. How Time computed:^ — 
 
 Year — 29th Feb. — The English statute of 21 Hen. 3, 
 
 * See, in connection with the text, Bishop Stat. Crimes, J 105-111. 
 
 275 
 
§i748 LAW OF CONTRACTS. 
 
 entitled De Anno et Die Bissextili, is common law in our 
 States.^ It provides, that the 29th day of February, in leap 
 year, "and the day next going before, shall be accounted 
 for one day." Hence, among other consequences, if there ' 
 could be any doubt under the prior law, a year in a contract, 
 alike in leap year and in other years, is measured by the 
 calendar and varies with it.^ Still, like other words, this 
 word year may be modified in meaning by the connection 
 in which it is iised, and the subject.* Coke tells us, that a 
 half year consists of one hundred and eighty-two days, and 
 a quarter year of ninety-one days ; "for the odd hours, in 
 legal computation, are rejected."* 
 
 § 748. Montli. — As our law had a beginning before the 
 present calendar, and then the word month meant a lunar 
 month of twenty-eight days,^ neither in popular acceptation 
 nor in legal interpretation was its meaning at once com- 
 pletely changed. Even at the present day, by the English 
 courts, this word in a contract is taken as a lunar month, 
 where there is no custom, and nothing in the subject, or in 
 the other terms employed, to indicate the contrary.* Yet 
 the intention of the parties is accepted as the test of the 
 sort of month ;'' and, in mercantile paper, under the custom 
 of merchants, it is interpreted to be calendar.* In our own 
 country, and as to all sorts of contract, a calendar month 
 is generally understood to be meant, unless the contrary 
 appears.' As some months are by the calendar longer than 
 
 » Swift V. Tousey, 5 Ind. 196; Craft v. State Bank, 7 Ind. 219; Kohler v. 
 Montgomery, 17 Ind. 220 ; Kilty Rep. Stats. 208 ; Report of Judges, 3 Binn. 
 595, 600. 
 
 * And see Co. Lit. 135 a; 2 Inst. 320; Englemau ». The State, 2 Ind. 91; 
 Anonymous, 1 Ld. Raym. 480. 
 
 ■I Thornton v. Boyd, 25 Missis. 598 ; Paris v. Hiram, 12 Mass. 262. 
 
 « Co. Lit. 135. 
 
 ' Catesby's Case, 6 Co. 61, 62 a; Tullet v. Linfield, 3 Bur. 1455. 
 
 • Simpson ».' Margitson, 11 Q. B. 23. 
 ' Lang V. Gale, 1 M. •& S. 111. . 
 
 » 2 Chit. Con. 11th Am. ed. 1064. 
 
 » Sheets «. Selden, 2 Wal. 177, 190; Hardin v. Major, 4 Bibb, 104; Shapley 
 276 
 
COLLATERAL AND SUPPLEMENTAL. § 749 
 
 others, so they appear also to be in a contract, each par- 
 ticular month being measured by the part of the calendar 
 to which it applies.* 
 
 § 749. Day. — In general, a day, in our law, consists of 
 twenty-four hoiirs, beginning and ending at midnight.* 
 But, in computing time, fractions of a day are, as a rule, 
 disregarded;' though they are taken into the account in 
 exceptional instances, where justice requires.* But, if a 
 man promises to do a thing in a specified number of days, 
 the day of the promise and the day of the performance are 
 not both counted as full days against him, — one is counted 
 and the other rejected ; as, if his promise is, on Monday, 
 to pay money in seven days, payment is due the next 
 Monday.* Yet the particular form of words, viewed in 
 connection with the subject to which they relate, may 
 operate to carry the performance a, day backward or for- 
 ward, — a subject upon which there are many distinctions, 
 and some differences of judicial opinion. It would be 
 difficult to derive from the cases a rule other than that the 
 interpretation is to depend on the matter of the contract, 
 the reason of the thing, and the words employed.* 
 
 V. Qarey, 6 S. & R. 539 ; Satterwhite v. Burwell, 6 Jones, N. C. 92 ; Lefflngwell 
 t>. White, 1. Johns. Cas'. 99; Thomas v. Shoemaker, 6 "Watts & S. 179. As to 
 what is half of a month, see Grosvenor v. Magill, 37 111. 239. 
 
 ' Toml. Law Diet. "Month ;" Titus v. Preston, 1 Stra. 652 ; Watson v. Peara, 
 2 Camp. 294; Webb v. Fairmaner, 8 M. &. W. 473; Lang v. Gale, 1 M. & 8. 
 111. 
 
 2 Ante, ? 261 ; 2 Bl. Com. 141. 
 
 ' Anonymous, 1 Ld. Baym. 480. 
 
 * Bishop Stat. Crimes, I 28, 29, 108, 111; 1 Saund. 6th ed. by Wms. 148 d, 
 note ; Tufts v. Carradine, 3 La. An. 430. 
 
 ' Bigelow V. Willson, 1 Pick. 485, 496; Wiggin v. Peters, 1 Met. 127, 129; 
 Homes v. Smith, 16 Maine, 181, 183 ; Henry v. Jones, 8 Mass. 453 ; Buttrick v. 
 Holden, 8 Cush. 233 ; Parwell v. Eogers, 4 Gush. 460. 
 
 6 Wiggin V. Peters, supra; Lester v. Garland, 15 Ves. 248; Dakins r. 
 Wagner, 3 Dowl. P. 0. 635 ; Brown v. Johnson, Oar. & M. 440 ; Pugh v. Leeds, 
 Cowp. 714; Isaacs v. Koyal Ins. Co., Law Rep. 5 Ex. 296; Commercial Steam- 
 ship Co. V. Boulton, Law Rep. 10 Q. B. 346 ; Page v. Weymouth, 47 Maine, 
 238; The State v. Schnierle, 5 Rich. 299. 
 
 277 
 
§ 752 LAW OF CONTKACTS. 
 
 § 750. Time of the Essence of the Contract or not: — 
 
 In General. — An agreement to do a thing on a par- 
 ticular day is broken if, when the day arrives and has 
 passed, it is not done.^ And, in general, in a court of law, 
 the time within which a contract is to be performed is as 
 much the essence of it as any other part." But, like any 
 other stipulation, that as to time may be waived.' To 
 illustrate, — 
 
 § 751. Election between Two Things. — When a con- 
 tract is for the performance of one or the other of two things, 
 the right to elect which of the two it shall be, is with him 
 who is to take the first step.* If, therefore, a man who has 
 promised to do one of two things, lets the agreed time pass 
 without making his election by doing either, he is too late 
 to elect, and the other party, who is then to take the first 
 step by enforcing payment, may demand whichever he will.' 
 But,— 
 
 § 752. In Equity. — In equity, the court will often grant 
 the relief prayed, — as, on a bill to enforce the specific per- 
 formance of a contract, and in some other cases, — where 
 the applicant has committed a lapse as to time, if his cause 
 is meritorious and he has acted in. good faith.* Yet, even in 
 equity, time will be regarded as of the essence of the con- 
 tract, should the parties, by the language they employed, 
 have made it such, or should the justice of the particular 
 case require that it be so treated.' 
 
 1 Ante, i 700, 702. 
 
 > "Warren v. Bean, 6 Wis. 120, 124; Barrett v. Hard, 23 La. An. 712; 
 O'Donnell v. Leeman, 43 Maine, 158; Cromwell v. "Wilkinson, 18 Ind. 365; 
 Hill V. School District, 17 Maine, 316 ; Allen v. Cooper, 22 Maine, 133. 
 
 » Ante, 2 657. 
 
 ' Layton v. Pearce, 1 Doug. 15. 
 
 ' McNitt V. Clark, 7 Johns. 465; Nesbitt v. Pearson, 33 Ala. 668. 
 
 • 1 Story Bq. ? 776 et seq. ; Hill «. Fisher, 34 Maine, 143 ; MagofSn ti. Holt, 
 1 Duvall, 95; Brashier v. Gratz, 6 "Wheat. 528; HaJI «i>. Delaplaine, 5 "Wis. 206. 
 
 ' Shaw V. Turnpike, 2 Pa.- 454; Usher v. Livermore, 2 Iowa, 117; Young v. 
 Daniels. 2 Iowa, 126 ; Sneed v. "Wiggins, 3 Kelly, 94 ; Liddell v. Sims, 9 Sm. 
 & M. 596 ; Tyler v. MoCardle, 9 Sm. & M. 230; Kemp v. Humphreys, 13 ni 
 278 
 
<X)LLATEKAL AND SUPPLEMENTAL. § 754 
 
 n. Contracts with Liquidated Damages ; that is, specify- 
 ing what Damages shall be paid for their Violation. 
 
 § 753. In O-eneral. — A contract with liquidated damages 
 is where the parties stipulate, in it, what damages the one 
 who may violate it shall pay to the other.^ Such a stipula- 
 tion, if not inconsistent in its terms with the main agreement, 
 and not contrary to the law or its policy, and if free from 
 fraud, will be enforced by the courts ; ^ otherwise, not.* 
 But — 
 
 § 754. Distinguished from Penalty. — It is often a nice 
 question of interpretation whether a particular provision is 
 for liquidated damages or for the sort of penalty to be treated 
 of under our next sub-title. For, as observed by Keating, 
 J., not unfrequently the contracting parties "could not 
 have meant what they have apparently said," in which case 
 the courts will give effect to their obvious intent ; as, 
 " where a number of things are stipulated to be done, it 
 has been held that the parties could not have meant that a 
 large sum should be payable as liquidated damages for a 
 failure to perform one or more of them." The sum men- 
 tioned, therefore, is interpreted in such a case to be, not 
 liquidated damages, but a penalty.* Though the very 
 words ' ' liquidated damages ' ' are employed, the courts, when 
 
 673; Kirby v. Harrison, 2 Ohio State, 326; Potter v. Tuttle, 22 Conn. 512; 
 Stow V. Eussell, 36 111. 18. 
 
 1 See 2 Story Bq. Jur. I 1818. 
 
 2 Lea V. Whitaker, Law Rep. 8 C. P. 70; Carter v. Corley, 23 Ala. 612; 
 Beale v. Hayes, 5 Sandf. 640 ; Cotheal v. Talmage, 5 Seld. 551 ; Hinton v. Sparkes, 
 Law Rep. 3 C. P. 161 ; Crisdee v. Bolton, 3 Car. & P. 240; Hardee v. How- 
 ard, 33 Ga. 533. 
 
 * Pitzpatrick o. Cottingham, 14 Wis. 219 ; Sutton u. Howard, 33 Ga. 536 ; 
 Browne. Maulsby, 17 Ind 10; Sessions v. Richmond, 1 R. L 298; "Wambaugh 
 B. Bimer, 25 Ind. 368 ; Gower v. Carter, 3 Iowa, 244 ; Bright v. Rowland, 3 
 How. Missis. 398. 
 
 * Lea V. Whitaker, Law Eep. 8 C. P. 70, 74; Chase v. Allen, 13 Gray, 42; 
 Glowen v. Gerrish, 15 Maine, 273 ; Higginson v. Weld, 14 Gray, 165 ; Watts v. 
 
 279 
 
§ 756 liAW OF COHTEACTS. 
 
 necessary, in carrying into effect the true intent of the 
 parties, will construe them as providing a penalty;^ and, 
 on the other hand, a provision with the word " penalty" is 
 sometimes held to mean liquidated damages.^ The leaning 
 of the tribunals is to the interpretation which makes the 
 provision a penalty ; because thus the sum to be paid may 
 be rendered commensurate with the injury suffered.* 
 
 § 755. In Equity. — A court of equity will not relieve & 
 party from legal liability, under his contract, to pay liqui- 
 dated damages;* "provided always," says Story, "the 
 damages do not assume the character of gross extravagance, 
 or of wanton and unreasonable disproportion to the nature 
 or extent of the injury." * But if the agreement is of a sort 
 of which the equity tribunal enforces specific performance, 
 there is no principle, and probably no authority, for dis- 
 tinguishing the liquidated damages from a penalty, on a bill 
 to enforce such performance ; and it will be enforced, alike 
 in the one case and in the other, where a contrary intent of 
 the parties does not appear in the contract.* 
 
 in. Penalties in Contracts. 
 
 § 756. Under the old Common Law. — Under the old 
 common law, a contract with a penalty, whether under seal 
 or not, could be sued in a court of common law, in an action 
 
 Sheppard, 2 Ala. 426 ; Berry v. "Wisdom, 3 Ohio State, 241 ; Carpenter ». 
 Lockhart, 1 Ind. 434 ; Thoroughgood v. "Walker, 2 Jones, N. C. 15. 
 
 1 Magee v. Lavell, Law Eep. 9 C. P. 107 ; Davis c;. Freeman, 10 Mich. 188; 
 Moore v. Platte, 8 Mlsso. 467. 
 
 2 Duffy V. Shockey, 11 Ind. 70 ; "Watts v. Sheppard, 2 Ala. 425. And sea 
 Chamberlain v. Bagley, 11 N. H. 234 ; Jackson v. Baker, 2 Edw. Oh. 471. 
 
 ' Wallls V. Carpenter, 13 Allen, 19, 25. And see Ktzpatrlck v. Cottlngham, 
 14 "Wis. 219. 
 
 * "Westerman v. Means, 2 Jones, Pa. 97 ; Skinner v. "White, 17 Johns. 857, 
 369. 
 
 5 2 Story Eq. Jur. g 1318. 
 
 « 1 Story Eq. Jur. § 751 ; Hull v. Sturdivant, 46 Maine, 34. 
 280 
 
COLLATERAL AND SUPPLEMENTAL. § 758 
 
 of debt ; and, if any one of the promises or covenants was 
 shown to have been broken, the plaintiff could recover of 
 the defendant the full amount of the penalty.^ But, — 
 
 § 757. Relief in Equity. — On application to a court of 
 equity, the party in default might obtain relief on paying 
 the money due or otherwise fulfilling 'the contract.'' 
 
 § 758. English liegislation as Common Law witli us — 
 American Legislation. — Upon this, in 1697, the English 
 statute of 8 & 9 Will. 3, c. 12, § 8, provided, that, on 
 the recovery of judgment for a penal sum in any court of 
 record, enquiry should be made by a jury as to the amount 
 of damages from breaches already suffered, on payment of 
 which the judgment should simply remain a security against 
 further breaches.. And, if there were further breaches, the 
 actual damage should, on scire facias, be in like manner 
 ascertained.^ Then, in 1705, Stat. 4 Anne, c. 16, § 13, 
 provided, that, upon an action on a bond with a pen- 
 alty, for the payment of money, if "the defendant shall 
 bring into the court where the action shall be depending all 
 the principal money, and interest due on such bond, and 
 also all such costs as have been expended in any suit or suits 
 in law or equity upon such bond, the said money so brought 
 in shall be deemed and taken to be in full satisfaction and 
 discharge of the said bond." The date of these statutes is 
 subsequent to the earliest settlements in this country ; * still, 
 being highly remedial and beneficial, they were accepted as 
 common law in Maryland^ and Pennsylvania;^ and, it is 
 
 ' Gainsford v. Griffith, 1 Saund. 51 and notes ; Coates v. Hewit, 1 "Wils. 80 ; 
 Thompson v. Hunt, 3 Lev. 368 ; SKaw u. Worcester, 6 Bing. 385, 389. And 
 see stat. 8 & 9 Will. 3, c. 12, J 8, which provides equally for contracts not under 
 seal as for those which are ; showing that, in the opinion of Parliament, there 
 was before the statute no distinction. 
 
 2 2 Story Eq. Jur. g 1313, 1314 ; Peachy v. Somerset, 1 Stra. 447, 453. 
 
 ' Such is the substance of a verbose provision. And see further as to it, the 
 notes to Gainsford v. Griffith, 1 Saund. Wms. ed. 51, 57, et seq. 
 
 • Bishop First Book, g 56. 
 
 5 Kilty Eep. Stats. 244, 246. 
 
 « Eeport of Judges, 3 Binn.595, 599, 625. 
 
 281 
 
§ 761 LAW OF CONTRACTS. 
 
 believed, in nearly' all our States. And there has been 
 more or less American legislation to the like effect.^ 
 
 § 759. Damages greater than Penalty. — If damages 
 are suffered beyond the penalty, they will be recoverable or 
 not, according to the 'nature of the case, and the form of 
 the action. As to this, there are various distinctions, and 
 the cases seem not to be quite harmonious.* 
 
 IV. The Delivery of the Written Instrument. 
 
 § 760. In General. — We have already seen,* that a 
 written instrument, whether under seal or not, takes effect 
 as a contract only on delivery ; and that such delivery must 
 be absolute, not as a mere escrow.* 
 
 § 761. Absolute: — 
 
 The Elements. — The elements of a delivery are, that the 
 writing must be meant, by the maker, to take immediate 
 effect ; and be presumably, or in fact, accepted by the other 
 party. 
 
 '■ Not in Massachusetts, Sevey v. Blacklin, 2 Mass. 541, or Maine, Bailey v. 
 Rogers, 1 Greenl. 186, 190; because of early colonial legislation superseding 
 these English provisions. The Massachusetts court, speaking of another sec- 
 tion of this statute of Anne, observes, that "this statute has always been prac- 
 tised upon here." Bond v. Cutler, 10 Mass. 419, 421. 
 
 ' See, and as to the form of the j udgment, Campbell v. Pope, Hemp. 271 ; Gar- 
 nett V. Toe, 17 Ala. 74 ; Toles v. Cole, 11 HI. 662 ; Stose v People, 25 111. 600; 
 Bggleston v. Buck, 31 111. 254; Wales v. Bogue, 31 HI. 464; Cameron v. Boyle, 
 2 Greene, Iowa, 154 ; Whitney v. Slayton, 40 Maine, 224 ; Rubon v. Stephan, 
 25 Missis. 253 ; Fontaine v. Aresta, 2 McLean, 127 ; Hoy v. Hoy, 44 Bl. 469; 
 Blakemore ■«. Wood, 3 Sneed, Tenn. 470; Cairnes v. Knight, 17 Ohio State, 
 68; Trice u. Turrentine, 13 Ire. 212; Walcott v. Harris, 1 R. I. 404; Warren 
 V. Gordon, 10 Wis. 499. 
 
 ' Lyon V. Clark, 4Selden, 448; Arnold ». United States, 9 Cranch, 104; 
 Mower v. Kip, 6 Paige, 88 ; Sweem v. Steele, 5 Iowa, 352, 10 Iowa, 374, 
 376; Parrer v. Christy, 24 Misso. 453; Carter «. Thorn, 18 B. Monr. 613; 
 Baker v. Morris, 10 Leigh, 284. 
 
 * Ante, i 18, 172, 173. 
 
 ^ Hopper V. Eiland, 21 Ala. 714; Carter v. MoClintock, 29 Misso. 464; 
 Lansing v. Gaine, 2 Johns. 300 ; Fay v. Richardson, 7 Pick. 91 ; MoPherson v. 
 Meek, 30 Misso. 345 ; Freeman v. Peay, 23 Ark. 439. 
 282 
 
COLLATERAL AND SUPPLEMBNTAI,. 763 
 
 § 762. The Possession. — It is possible there should be 
 a valid delivery of an instrument while yet it does not pass 
 out of the hands of the maker ; as, if the obligor in a bond, 
 after signing and sealing it, holds it out in his hand and 
 says to the obligee, " Here is your bond, what shall I do 
 with it? " this is a delivery though it is not transferred to 
 the latter's manual possession. But probably, in such a 
 case, a simultaneous intent of the latter to accept the con- 
 tract or conveyance must distinctly appear.^ Thus, — 
 
 § 763. Acceptance. — If the writing, after it is signed, is 
 merely left in the hands of a third person, who does not 
 undertake to act as the agent of the party to whom it runs, 
 and this party, by no word or deed, signifies his acceptance 
 of it, there is no delivery.^ Yet in most cases the law will 
 presume, in the absence of proof to the contrary, that the 
 third person did undertake the office of agent in the partic- 
 ular instance ; and that the other party to the instrument, 
 
 ' Polly V. Vantuyl. 4 HaUt. 153; "Waddell v. Hewitt, 1 Ire. Eq. 475; Gar- 
 nona v. Knight, 5 B. & C. 671 ; Farrar v. Bridges, 5 Humph. 44 ; Harris v. 
 Saunders, 2 Strob. Eq. 370; Xenos v. Wickham, Law Kep. 2 H. L. 296. I do 
 not think it quite certain that all courts will hold to the full proposition of the 
 text ; there being, in some, a palpable leaning to the doctrine, that, in order to 
 render the delivery complete, the writing must in some way pass beyond the 
 control of its maker. Johnson v. Farley, 45 N. H. 505; Eivard v. Walker, 89 
 111.413; Cook «. Brown, 34 N. H. 460. See Canfield v. Ives, 18 Pick. 258; 
 Butledge v. Montgomery, 30 Ga. 899. Still, the general doctrine is accepted 
 by all, that the writing need not pass into the manual possession of the party 
 to be benefited by it, and that there may be an adequate delivery by words or 
 by actions. McLure v. Colclough, 17 Ala. 89 ; MaHett v. Page, 8 Ind. 364 ; 
 Stevens v. Hatch, 6 Minn. 64 ; Warren v. Swett, 11 Fost. N. H. 332 ; Floyd v. 
 Taylor, 12 Ire. 47 ; Dayton v. Newman, 7 Harris, Pa. 194 ; Goodright v. Gregory, 
 Lofft. 839. There are cases which hold, that a man can make a valid convey- 
 ance of his estate by a deed, not only which never passes out of his own hands, 
 but also which never comes to the knowledge of the grantee. Exton v. Scott, 
 6 Sim. 31' Lloyd v. Bennett, 8 Car. &P. 124. See Grugeon v. Gerrard, 4 Y. 
 & Col. Ex. 119. Such a doctrine is dangerous, and in conflict with some other 
 established principles of the law. 
 
 ' Johnson v. Parley, 45 N. H. 605; Curtis v. Gorman, 19 HI. 141 ; Carey v. 
 Dennis, 18 Md. 1 ; The State v. Oden, 2 Har. & J. 108, note. 
 
 283 
 
§ 765 LAW OF CONTRACTS. 
 
 if it was of a beneficial nature, accepted it. In this way 
 one may take land as a grantee, who does not even know of 
 the existence of the deed, or of the grantor's intent to make 
 the conveyance.^ And within this principle, the mere 
 putting of a deed or promissory note into the post office, 
 directed to the grantee, is a delivery to him.'' 
 
 § 764. Escrow: — 
 
 "What. — An escrow is a written instrument delivered to 
 a third person, to take efiect on the happening of a con- 
 tingency. The term is generally, in the books, applied to a 
 deed ; but it would seem to be equally applicable to other 
 written contracts.^ 
 
 § 765. Third Person. — If the deed is delivered into the 
 manual possession of the grantee, it cannot operate as an 
 escrow, though the parties may both have meant it should. 
 It will take effect, discharged of the condition.* But the 
 
 ' In Johnson v. Farley, supra, Bellows, J., speaking of a deed of land, where 
 the manual delivery was not directly to the grantee but to a third person for 
 him, said : " It must be delivered to such third person as the agent of the 
 grantee, and received by him in that capacity ; and then, if the law will, from 
 the beneficial nature of the conveyance, presume the assent of the grantee, the 
 delivery is complete and the estate passes at once. There are cases where, 
 upon this ground, such assent has been presumed. Among them are Brooks v. 
 Marbury, 11 "Wheat. 78, 96-98 ; Tompkins v. Wheeler, 16 Pet. 106, 113 ; Gar- 
 nons V. Knight, 5 B. & C. 671 ; Grove v. Brien, 8 How. U. S. 429; Merrills v. 
 Swift, 18 Conn. 257; "Woodward v. Camp, 22 Conn. 457, 461 ; Pintard ». Bodle, 
 20 Johns. 184. In some of these cases it has been held tHat sending to the reg^ 
 istry, to be recorded, a deed clearly beneficial to the grantee, is a good deliv- 
 ery ; but the law is otherwise in New Hampshire, unless the register receive 
 it as agent of the grantee. Barns v. Hatch, 8 N. H. 304 ; Derry Bank o. 
 Webster, 44 N. H. 264, 268, and cases cited," p. 509, 510. See, also, Lloyd v. 
 Bennett, 8 Car. & P. 124 ; Foley v. Howard, 8 Iowa, 56 ; Ward v. Ward, 2 
 Hayw. 226; Burt v. Cassety, 12 Ala. 734 ; Stewart v. Weed, 11 Ind. 92. 
 
 » MoKinney u. Khoads, 5 Watts, 343 ; Mitchell v. Byrne, 6 Rich. 171 ; Kirk- 
 man V. Bank of America, 2 Coldw. 397. 
 
 » Worrall v. Munn, 1 Selden, 229; Badoock v. Steadman, 1 Boot, 87. 
 
 * Miller u. Fletcher, 27 Grat. 403; Foley v. Cowgill, 5 Blackf. 18; Holford 
 
 V. Parker, Hob. 246 ; Morice v. Leigh, 1 Dy. 34 6 ; Badcock v. Steadman, 1 
 
 Root, 87 ; Jordan v. Pollock, 14 Ga. 145; Graves v. Tucker, 10 Sra. & M. 9; 
 
 Worrall v. Munn, 1 Selden, 229 ; Braman v. Bingham, 26 N. Y. 483 ; Gibson 
 
 284 
 
COLLATERAL AND SUPPLEMENTAL. § 767 
 
 attorney of the grantee is competent to hold the deed as an 
 escrow.^ 
 
 § 766. "Wlien takes Effect. — If the condition on which 
 the deed was delivered tran^spires, it then becomes absolute, 
 either on delivery of it by the custodian to the grantee,'^ or 
 without, * according to the circumstances and the nature of 
 the cQndition. There are some nice questions as to whether, 
 after the deed has thus been made absolute, it shall operate 
 as from the original delivery, or from the performance of 
 the condition, and second delivery where the latter is neces- 
 sary. If the grantee dies between the first delivery and the 
 deed becoming absolute, "the deed," says Coke, "is 
 good ; for there was traditio incJioata in the life of the par- 
 ties, sed postea consummata existens by the. performance of 
 the condition, takes its effect by force of the first delivery, 
 without any new delivery."* There are cases other than 
 of death open to the like construction, but the general rule 
 appears to be that the effect of the deed dates back no fur- 
 ther than the second delivery.^ 
 
 § 767. The Doctrine of this Chapter restated. 
 
 In this chapter are brought to view some incidents of a 
 contract not necessary to be repeated here. The general 
 
 V. Partee, 2 Dev. & Bat. 530 ; Hagood v. Harley, 8 Rich. 325. Yet the 
 person taking under the instrument is by some courts held competent to 
 act as an agent to transmit it to the third person who is to hold it as an escrow. 
 Browne. Reynolds, 5 Sneed, Tenn. 639. And see Braman v. Bingham, supra. 
 
 » Watkins v. Nash, Law Rep. 20 Eq. 262. 
 
 ' Gratz V. Catlin, 2 Johns. 248 ; Bushel v. Pasmore, Holt, 213 ; Carter v. 
 Turner, 5 Sneed, Tenn. 178. 
 
 ' Perryman's Case, 5 Co. 83 b ; Peck v. Goodwin, Kirby, 64. 
 
 * Perryman's Case, 5 Co. 836, 84 J. 
 
 ' Williams's note to Holford v. Parker, Hob. 246 ; Wells u. Ramsbottom, 6 
 Taunt. 12 ; Price v. Pittsburgh, etc., Railroad, 34 HI. 13 ; Teneick v. Plagg, 5 
 Dutcher, 25; Russell v. Rowland, 6 Wend. 666; Keirsted v. Avery, 4 Paige, 1. 
 
 285 
 
§ 767 LAW OF CONTRACTS. 
 
 result is, that every incident has its place in the one har- 
 monious system. 
 
 In conclusion of the whole subject, the law of contracts is 
 founded substantially on natural reason and abstract justice. 
 But in it, as in all other departments of our jurisprudence, 
 some technical rules have found a place by virtue of imme- 
 morial usage and the adjudications of the courts, and by 
 force of statutes. Nor is it a mere array of decided points ; 
 it is a system of doctrines resting in natural and juridical 
 reason, and reducible to rule. 
 286 
 
INDEX OF SUBJECTS. 
 
 Note. — The references are to the sections. 
 
 ABANDONED PROPERTY, 
 
 belongs to finder, 88. 
 ABILITY, 
 
 contract to do -what exceeds one's, valid, 612. 
 
 misrepresentation of one's own, as fraud, 221. 
 ACCEPT AND RECEIVE, 
 
 how, in sale under statute of frauds, 554. 
 ACCEPTANCE, 
 
 of bill, etc., whether good without writing, 53. 
 
 of ofFer, what is, and sufficient or not, 176-179, 183. 
 
 of manufactured article, effect of, 660. 
 
 whether, necessary to delivery of writing, 762, 763. 
 ACCORD AND SATISFACTION, 
 
 barring specialty by, 34. 
 
 a sufficient consideration, 417 
 
 how plead, 706, note. 
 ACCOUNT, 
 
 when legal and illegal items in, separable, 471, note. 
 ACQUISITIONS, 
 
 agent's, belong to principal, 355. 
 ACT OP GOD, 
 
 how defined, 612. 
 
 as excusing performance of duty or contract, 610-631. 
 
 agreement to pay damages arising from the, valid, 624. 
 
 distinctions as to this sort of agreement, 625. 
 
 ACTOR, 
 
 may enforce pay if he did not know theatre not licensed, 466. 
 ADJUDICATIONS. See Dkcisiom. 
 
 ADMINISTRATOR, 
 
 promise by, to answer personally for debt of deceased, 614-616. 
 original undertakings by, 616. 
 
 287 
 
INDEX OF SUBJECTS. 
 
 ADULTERY. See Illicit Commekcb. 
 
 ADVANTAGrE. See Benefit or Disadvau-taqb — Undub Advantage. 
 
 ADVICE, 
 
 effect of, on contract by insane person, 291. 
 AFFIRMANCE, 
 
 after, with knowledge, no rescission, 678. 
 AGENCY, 
 
 one contracting as agent, warrants that he is authorized, 100. 
 
 right to vary contract by proof of, restricted, 362, 363. 
 AGENT, See Authority — Government Agent — Katification — Un- 
 authorized Person. 
 
 cannot deal with self, 251. 
 
 corporation may appoint and pay an, 312. 
 
 contracting partner is, of rest of firm, 392. 
 Contracts made through, discussed ; as to — 
 
 introductory views, with explanations of the different sorts of agents, 
 318-326. 
 
 how agents for different purposes are constituted, 327-830. 
 
 who may be agents, 331, 332. 
 
 compatible and incompatible functions, 333-337. 
 
 termination of the agency, 338-343. 
 
 agency coupled with interest or not, 339-342. 
 
 powers of, express or implied, 344, 345. 
 
 implied from terms of the authority, 346-349. 
 
 implied from nature of agencj% 350, 351. 
 
 execution of the contract by the agent, — specialties, simple contracts, 
 whether principal or agent or both are bound, who sue or be sued, etc., 
 352-367. 
 
 filling blanks in specialties and simple contracts in writing, 368-374. 
 
 departing from his authority, 375-384. 
 
 acting after authority withdrawn, 384, 385. 
 
 frauds by and to, 386-390. 
 
 doctrine of the chapter restated, 391. 
 AGREEMENT, See Contract. 
 
 effect of the word, in statute of frauds, 512. 
 AGREEMENT TO CONVEY, See Sale op Lands. 
 
 lands, forms of, 585. 
 
 AGREEMENT TO MARRY, See Promise to Marry. 
 
 infant's, with adult, voidable, 157. 
 ALLEGATION. See Pleading. 
 ALTERATION, 
 
 of specialty by parol, 32-37. 
 
 oral, of written contract, makes it oral, 58. 
 
 unauthorized, in filling blank, avoids contract, 373. 
 
 28a 
 
INDEX OF SUBJECTS. 
 
 ALTERED CONTKACT, 
 
 consented to, is in law a new contract, 643. 
 
 not consented to, surety, etc., discharged, 644. 
 ALTERING WRITTEN CONTRACT, 
 
 unauthorized, disczissed, 632-642. 
 
 by mutual consent, discussed, 643-654. 
 AMBIGUITY. See Latent Ambiguity. 
 AMENDS, 
 
 promises to make, not void, 474, 476. 
 
 for illicit commerce, 495. 
 ANIMAL, 
 
 when keeper of, responsible for damage by, 681. 
 ANOTHER'S DEBT, 
 
 unauthorized paying, effect of, 705, 706. 
 ANSWER QUESTIONS, 
 
 whether party must, while making bargain, 219. 
 ANTE-NUPTIAL CONTRACT, See Mareiagb Settlement. 
 
 when, must be iii writing as not to be performed within a year, 539. 
 APPEARANCE BOND, 
 
 death of principal in, 621. 
 
 APPRENTICE, See Trade. 
 
 one who entices another's, must pay for services of, 82. 
 ARBITRATION, 
 
 verbal submission to, whether good, 52. 
 
 agent to settle claims cannot submit them to, 349. 
 
 ARREST, 
 
 bond to procure release from unlawful, void, 26. 
 
 right to" reward for, 177. 
 
 effect of contract compelled by, 242. 
 
 right to have indemnity bond on making, 467. 
 
 discharge from, in one State, does not free from, in another, 739. 
 
 ARTIFICE, See Fraud. 
 
 effect of drunkenness brought about by, 302. 
 ASSENT. See Mutual Assent. 
 ASSIGNMENT, 
 
 oral, is good, 51. 
 
 by bankruptcy, not violate agreement not to assign, 118. 
 
 of promissory note, effect of, 404. 
 
 even of specialty, may be oral, 563. 
 
 how, of interest in land, 564. 
 ASSUMPSIT, 
 
 lies on promise created by law, 119, 120. 
 
 not, on promise implied in specialty, 124. 
 
 289 
 i» 
 
INDEX OF SUBJECTS. 
 
 ASSURANCE. See Insurance. 
 ATTACHMENT, 
 
 money paid to procure relinquishment of, 247. 
 
 indemnity to officer on taking or releasing, 467, 470. 
 
 how, on goods being sold, 547. 
 
 effect of, on stoppage in transitu, 661. 
 ATTORNEY, 
 
 of party, may hold deed as escrow, 765. 
 
 ATTORNBY-AT-LA"W 
 
 is agent with special duties, 823. 
 
 AUCTION, 
 
 effect of bidding at, under mistake, 193. 
 
 rules concerning, stated, 481. 
 AUCTIONEER, 
 
 duties of, 322. 
 
 when, agent for both seller and purchaser, 334, 835. 
 AUTHORITIES. See Decisions. 
 AUTHORITY, See Agent. 
 
 one partner has not, to use firm's seal, 899, 402. 
 
 how this may be conferred, 399, 402. 
 
 but objectionable, and why, 402. 
 
 to do a thing, ratifies it if already done, 711. 
 AUTHORITY TO PURCHASE, 
 
 carries power to direct as to delivery, 848. 
 AUTHORITY TO SELL, 
 
 carries power to execute conveyances, 847. 
 
 also carries power to warrant, 347. 
 
 BAILMENT, 
 
 though gratuitous, is a consideration, 422. 
 
 gratuitous promise of, void, 422. 
 BANK-NOTE, 
 
 whether, "goods, wares, and merchandise," 550. 
 BANKRUPTCY, 
 
 assignment in, does not violate agreement not to assign, 113. 
 
 terminates agency, 343. 
 
 effect of new promise on debt discharged by, 448. 
 
 when, in one country, discharges contract made in another, 736 and note. 
 BASTARD, 
 
 death of, not avoid note for support of, 427. 
 BASTARDY, 
 
 agreement not to prosecute for, may be good, 476. 
 
 forbearance to prosecute for, as a consideration, 495. 
 
 290 
 
INDEX OF SUBJECTS. 
 
 BAWDT-HOUSE, 
 
 contract of letting, void, 496. 
 BENEFIT, 
 
 law creates a promise by insane person to pay for, 293. 
 
 accepting a, under assumed agency, ratifies it, 711. 
 
 BENEFIT OR DISADVANTAGE, 
 
 rules as to the consideration being a, 420-422. 
 
 BEQUEST, 
 
 effect of expectation of, on contract, 76. 
 good only to one who can take, 258. 
 
 BILL OP EXCHANGE, See Negotiable Papbr — Notes and Bills. 
 
 oral, not good, 48. 
 
 executed through fraud, void in hands of innocent holder, 195. 
 
 contra, if fraud in the inducement, 201. 
 
 unauthorized conversion of, into note, avoids it, 373. 
 
 accepting and paying, supra protest, 705. 
 BLANK, See Filling Blanks. 
 
 effect of, in name of grantee, 22. 
 BOARD, 
 
 to prostitute, whether recoverable, 496. 
 
 whether agreement for, must be in writing, 532. 
 
 BOND, See Appearance Bond — Specialty — Statutory Bond. 
 meaning of the term, 14. 
 with penalty, 756-759. 
 
 BORROW, 
 
 corporations may, 313. 
 BOtJNDS. See Metes and Bounds. 
 
 BREACH, See Suit. 
 
 rescinding contract for, 675, 676, 683. 
 
 damages for, 683, 684. 
 
 rescission without cause is a, 684. 
 
 when agreed thing is not done and the day is passed, 750. 
 
 whether rescission after, 672. 
 
 by disqualifying one's self, 686. 
 
 essential to a right to sue, 688, 702. 
 BREACH AND PERFORMANCE, 
 
 of contracts, discussed, 687-703. 
 BREACH OF MARRIAGE PROMISE, See Marriage. 
 
 what is — already married — refusal before the time, etc., 693. 
 
 BROKER, 
 
 who, and duties of, denned, 321. 
 
 as agent for both seller and purchaser, 334. 
 
 how, must sell, 851. 
 
 291 
 
INDEX OF SUBJECTS. 
 
 BURDEN, 
 
 law doea not cast, on infant, 263. 
 
 one must bear the, whoi takes benefit through agent, 365. 
 
 CALENDAR, 
 
 how, followed in computations of time, 747, 748. 
 
 CANCELLING, 
 
 deeds ana other contracts, effect of, 669-671. 
 
 CAPACITY, 
 
 contracting parties must have, 257, 259. 
 
 must have, to take, 258. 
 
 when contract implies warranty of, 99. 
 
 CAPACITY OP CONTRACT, See Insani: Person. 
 how, and defined, 288-290. 
 
 CARELESSNESS, 
 
 of statement, may constitute fraud, 223. 
 
 CARPENTER WORK, See Sbktices. 
 
 promisor to perform, though personally sick, 222. 
 not, when local sickness deters all workmen, 623. 
 
 CARREER. See Cmjmon Cakkibr — Limiting Carsiek's Liabilitt. 
 
 CASES. See Decisions. 
 
 CERTAIN, 
 
 what can be made certain is, in contract, 601. 
 CHAMPERTY, 
 
 how, as vitiating contract, 477. 
 CHARACTER, 
 
 on what ground the law vindicates, 404. 
 CHARITY, 
 
 what is given in, not recoverable back, 93. 
 CHARTER, 
 
 of corporation, carries the power of contract, 307. 
 CHARTER-PARTY, 
 
 effect of agent describing himself as owner in, 363. 
 CHATTEL. See Personal Property. 
 CHILDREN,- See Parent and Child. 
 
 deed to, may be good, 601. 
 CLAUSE, 
 
 when every, will have effect, 579-581. 
 
 general, restrained by Specific, 593. 
 CLOTHES, 
 
 sold to prostitute, whether price recoTerable, 496. 
 
 292 
 
INBEX OF SUBJECTS. 
 
 COMMERCIAL USAGE, 
 
 viewed as law, 354. ^ 
 
 COMMISSION MERCHANT, 
 
 who, and duties of, defined, 320. 
 COMMON CARRIER, 
 
 duties of, what— determined by law, 322, 605. 
 
 how, excused by act of God or public enemy, 614. 
 
 not excused by ordinary fire, 614. 
 COMMON LAW, 
 
 requirements of, not superseded by statute of frauds, 512, 514, 524, 525, 
 546, 558. 
 
 how, in part, composed of custom and usage, 570. 
 COMMON SEAL, 
 
 whether corporation must contract under, 315, 316. 
 
 form of such contract, 315, note. 
 COMPEL, 
 
 infant bound by voluntary act which the law would, 278. 
 COMPOSITION WITH CREDITORS, 
 
 rules as to, 412-417. 
 COMPOSITION DEED, 
 
 good, signed and sealed by one partner, 401. 
 COMPOUNDING, 
 
 bond or other agreement for, void, 25, 473. 
 COMPROMISE, 
 
 a consideration for a surrender, 417. 
 COMPUTATION OP TIME. See Time. 
 CONCEALMENT, 
 
 when, a fraud, 217-219. 
 CONDITION, 
 
 not broken by act of law, 114. 
 
 impossible, effect of, 630. 
 
 how breach of, waived, 659. 
 
 hindering performance of, a waiver, 695. 
 CONDUCT OP PARTIES, 
 
 under contract, how affects interpretation, 598. 
 CONFIDENTIAL RELATION, See Piduciaet Relation. 
 
 fraud by person sustaining, 227. 
 CONFIRMATION. See Ratificatign. 
 CONFLICT OP LAWS, 
 
 doctrine of, as to contracts, discussed, 717-744. 
 CONSCIENCE. See Equity and Good Conscibncb. 
 CONSENT, See Mutual Assent. 
 
 no contract without, 196, and see 174 et seq. 
 
 infant's capacity of, to contract, imperfect, 262, 280. 
 
 293 
 
INDEX OF SUBJECTS, 
 
 CONSENT, Continued. 
 
 effect of, to alteration of contract, 643, 644. 
 
 rescission by mutual, considered, 667-672. 
 CONSIDERATION, See Failure of Considbration— Statu Quo. 
 
 essential in contracts created by law, 9. 
 
 in specialties, 23-29. 
 
 illegal, fraud, etc., 24-26. 
 
 in conveyances of land, 27. 
 
 in specialties in restraint of trade, 28. 
 
 whether, must be stated, may be contradicted, etc., 65. 
 
 offer without, may be withdrawn, 180. 
 
 mistake preventing, contract void, 231. 
 
 reclaiming the, when infant avoids contract, 275. 
 
 returning the, by infant disaffirming cqntract, 265, 267, 277. 
 
 adequacy of, in contract by insane person, 291. 
 
 whether insane person must return the, to avoid contract, 295. 
 
 retaining the, a ratification of drunkard's contract, 305. 
 
 legal and illegal parts of, when separable, 471 and note. 
 
 distinguished from agreement, under statute of frauds, 503. 
 
 whether, must appear and ho w, in memorandum under statute of frauds, 512. 
 
 what, for contract of guaranty, 524. 
 
 in writing, or not, under statute of frauds, 585. 
 
 for thing required by statute of frauds to be in writing, recoverable though 
 oral, 545. And see 546. 
 
 required for written contract within statute of frauds, 546. 
 
 the, where contract is altered by consent, 647. 
 
 how disposed of, on rescission, 667, 669. 
 
 whether any and what, in waiver, 662-664. 
 
 must be return of, on rescission, 679. 
 
 recovering back, after rescission, 680. 
 Doctrine of the, discussed ; as to — 
 
 distinguished from motive — value — "good " — "valuable " — "moral ob- 
 ligation" — how defined, etc., 403-408. 
 
 general view of the, 409-427. 
 
 mutual promises, 428-431. 
 
 where the contract is wholly executed, 432-437. 
 
 where the contract is executed in part, 438, 439. 
 
 where the, is executed, 443-445. 
 
 waiver of imperfections in the, — statute of limitations and new promise, 
 bankruptcy and new promise, new promise by discharged endoreer, same 
 after release by party, moral obligation, etc., 446-453. 
 
 doctrine of the chapter restated, 454. 
 
 CONSIDERATION OF MARRIAGE 
 
 meaning of term, defined, 526. 
 
 contract on, to be in writing, explained, 525-529. 
 CONSPIRACY, 
 
 contract by, to defraud, void, 480, 712. 
 294 
 
INDEX OF SUBJECTS. 
 
 CONSTITUTION, 
 
 modified by principles outside itself, 505. 
 
 CONSTRUCTION. See Intekpeetation. 
 
 CONTRACT, See Agent — Altering "Written Contract — Created by 
 Law — Executed Contract — Execittort Contract — Express 
 Contract — Implied Contract — Implied Power — Impossible Con- 
 tract — Joint Promisors — Lobbying Contract — Mutual Assent 
 — Oral Contract — Signing — Simple Contract — Unuqual Con- 
 tract — Unlawful Contract — Vendor and Purchaser — "Writ- 
 ten Contract. 
 
 defined, 1, 13, 109-111, 149. 
 
 elements of, 2-11. 
 
 one, or many, 58-62, 66. 
 
 how executed by agent, 352-367. 
 
 nature of the law of, 767. 
 
 CONTRACT OP RECORD, 
 doctrine of, stated, 39-46. 
 
 CONVEY, 
 
 infant has power to, 264. 
 
 CONVEYANCE OF LAND, See Deed or Land — Sale op Lands — 
 Title — Vendor and Purchaser. 
 
 oral, formerly good, 47. 
 
 warranties implied in, 101-104. 
 
 effected by estoppel, 128, 130, 131, 136, 137. 
 
 void, no interest passes, 155. 
 
 can be only to one who can take, 258. 
 
 by insane persons, 296, 297. 
 
 what, by corporations, 310. 
 
 mode of executing, by corporation, 314, 315. 
 
 must be by deed in writing, 560, 564, 567. 
 CONVEYANCES TO DEFRAUD. See Creditors. 
 COPARTNERS. See Partnershep. 
 
 CORD-WOOD, 
 
 agreement to cut, whether in writing, 533. 
 
 CORPORATION, 
 
 existence of, established by estoppel, 132. 
 what authorization to agent to afiix common seal of, 329. 
 party to be deemed, or partner, according to law of forum, 740. 
 power of, to make contracts, and how, discussed, 307-317. 
 
 COUNTERFEIT MONEY, 
 
 passing, not operate as payment, 235. 
 
 COURSE OF DEALING, 
 
 as giving authority to agents, 384. 
 
 295 
 
INDEX OP SUBJECTS. 
 
 COVENANT, 
 
 meaning of the term, 14. 
 
 action of, not on promise created by law, 119. 
 
 lies on promise implied in specialty, 124. 
 
 CREATED BY LAW, 
 
 why contracts are, 13. 
 
 promise to refund money paid, 146. 
 
 infant's promise to pay for necessaries is, 266, 280. 
 
 contract may be, with insane person, 293, 299. 
 
 promise, foundation for express promise, 445. 
 
 impossibility excuses duty, 613. 
 Contracts created by law, discussed; as, — 72-94, 109-120. 
 
 explained in general, 72, 94. 
 
 goods ordered, 74. 
 
 work and services, 75, 76. 
 
 affected by relationship, 76, 77. 
 
 suretyship, 78, 79. 
 
 money obtained of wrong, 81. 
 
 labor enticed from another's apprentice, 82. 
 
 husband support wife ; parent, child, 83, 87. 
 
 medical aid in emergency, 84. 
 
 necessaries and other benefits to insane, 86. 
 
 necessaries to infants, 86. 
 
 saving property, 88. 
 
 how, where there is express contract, 89, 90. 
 
 express contract void, 91. 
 
 payment originally expected, 92. 
 
 relief to the poor, 93. 
 
 the doctrine in brief, 94. 
 
 limit of the word " contract," 109-111. 
 
 resulting trusts as, 112. 
 
 assignment of policy in bankruptcy, 113. 
 
 condition in covenant, 114. 
 
 deemed neither written, unwritten, or sealed, 115, 119. 
 
 mental and legal capacity in, 116, 117 
 
 accepting deed-poll, 118, 119. 
 
 how far, like express, 120. ' 
 
 CREDITOES, See Composition with Creditors. 
 
 promise to, to pay another's debt, must be in writing, 522. 
 
 conveyances to defraud, doctrine stated, 712-714. 
 
 not strictly privies, 716. 
 
 CEIMINAL CONVERSATION, 
 
 promise to settle claim for, valid, 495. 
 
 CUSTODIAN, 
 
 effect of, altering written contract, 638, 642. 
 296 
 
INDEX OF SUBJECTS. 
 
 CUSTOM AND USAGE, 
 
 may render both principal and agent liable, 365. 
 
 effect of, on presumption of agency, 383. 
 
 what, and effect of, in law of contracts, explained, 568-573, 603, 607. 
 
 DAMAGES, See LiQinDATED Damages — Penalty. 
 
 recoverable for fraud, 209. 
 
 for the inevitable, — distinction, 625-631. 
 
 whether, in excess of penalty, 759. 
 DATE, 
 
 wrong, or omitted, 19, 64. 
 
 filling blank for, by parol authority, in specialty, 369. 
 
 as of Sundaj', or as of week-day, 485. 
 DAY, See Ebactions OF Day — Midnight. 
 
 in law, begins at midnight, 261. 
 
 fractions of, regarded, 261. 
 
 what — fractimjs — how days computed, 749. 
 DEATH, 
 
 power of contract ends at, 255. 
 
 agency, when terminated by, 340-842. 
 
 failure of performance through, 621, 622. 
 
 of grantor, while the deed is an escrow, 766. 
 DEBT. See Another's Debt. 
 
 DEBTOR, 
 
 promise to pay debt of, need not be in writing, 522. 
 
 must find his creditor and tender the money, 700. 
 DECEIT. See Fhaud. 
 DECEITFUL PROMISE, 
 
 may constitute fraud, 222. 
 DECISIONS, 
 
 the, as to negative propositions, 265. 
 
 as to infancy, contradicting, 279. 
 
 tJie, do not pass direct'y on legal doctrine, 534, note. 
 DEED, See Lost Deed — Specialty. 
 
 meaning of the term, 14. 
 
 sealed by agent not authorized, 585. 
 DEED OE LAND, See Conveyance or Land— Land. 
 
 whether, must express consideration, 27. 
 
 implied warranty in, 101-104. 
 
 to dead man, void, 255. 
 
 by insane person, conveys seisin, 296. 
 
 insane person's, as to third person, 297. 
 
 no consideration if void, though believed good, 425. 
 
 how description of land in, interpreted, 594. 
 
 297 
 
INDEX OF SUBJECTS. 
 
 DEED OP LAND, Continued. 
 
 effect of altering, after title vested under, 640. 
 
 effect of annulling, 671. 
 
 agreement to make, broken by conveying to a third person, 694. 
 
 made to one ignorant of it, may be good, 763. 
 DEED-POLL, 
 
 infant who accepts, bound by, 118. 
 
 promise implied by accepting, 118, 119. 
 DEFAULT, 
 
 both parties in, operates as rescission, 668. 
 DEFECTS m MANUFACTURE, 
 
 how, waived, 660. 
 DEFENCE, 
 
 fraud as a, at law, 218. 
 DEFENDANT, 
 
 in suit, must be in the wrong, 688. 
 
 must have broken contract, 688. 
 DELAY, 
 
 effect of, in rescission, 204. 
 
 DELIVERY, 
 
 essential to contract in writing, 172, 173, 760. 
 
 whether second, after blank is filled, 369, 370, 372. 
 
 of goods, not essential to sale, 547. 
 
 what is, of goods, 554. 
 
 contract written on Sunday good if delivered another day, 486. 
 Of the Written Instrument, discussed ; as to — 
 
 absolute, 761-763. 
 
 escrow, 764-766. 
 DEMAND, 
 
 specific articles payable on, 699. 
 
 money payable on, 699. 
 
 of performance of contract to sell lands, 694, 697. 
 
 as to, in other cases, 690, 692, 698-700. 
 
 DENTIST, 
 
 may recover pay from infant, 86. 
 DEPENDENT, 
 
 when provisions to be interpreted as, 589. 
 DEPRECIATION, 
 
 subsequent, in consideration, 427. 
 
 DEROGATION OF LAW, 
 
 contract provisions in, construed strictly, 596. 
 DISABILITY. See Disqualification — Involuntary Disability. 
 DISADVANTAGE. See Bknefit or Disadvantaqb. 
 298 
 
INDEX OF SUBJECTS. 
 
 DISAPPIKMANCE. See Ebscission. 
 DISCHAEGE OP CONTEACT, 
 
 by law of what State, to be valid, 734-736. 
 DISCRETION, 
 
 one cannot be agent with, for both parties, 337. 
 
 agent with, cannot delegate agency, 350. 
 DISPOSAL OP THING, 
 
 contracted about, entitles other party to rescind, 677. 
 
 or to sue immediately for damages, 694, 703. 
 DISQUALIFICATION, 
 
 of contracting party, entitles other party to rescind, 677, 686. 
 
 is a breach, justifying suit, 690. 
 
 how where, exists at time of contract, 691. 
 DIVISION LINE, 
 
 established in pais, by estoppel, 130. 
 DIVISION OF SUBJECT, 
 
 by an author, nature of, 472. 
 DOCTRINE. See Ligal Doctrine. 
 DEUNKEN PEESON, 
 
 fraud practised on, 225. 
 
 power of, as to contract, discussed, 800-306. 
 DEUNKENNESS, 
 
 insanity from, same effect as from other causes, 287. 
 
 supplying place of criminal intent, 306. 
 
 as to which, how in contracts, 306. 
 DURESS, See Threats. 
 
 how, defined, 239. 
 
 money obtained by, recoverable back, 81. 
 
 as impairing a contract, discussed, 185-188, 239-249. 
 DURESS OF GOODS, 
 
 whether money obtained through, recoverable back, 145. 
 DUTY, See Legal Dutt. 
 
 one who does a, whether entitled to pay, 83-88, 94. 
 
 EAENEST, 
 
 what is, and law of, under statute of frauds, 555. 
 EFFECT, 
 
 how to determine the, of contract, 603-608. 
 EFFECTUAL. See Operation. 
 EIGHTEEN, 
 
 as age of majority in females, 260. 
 ELECTION, 
 
 concerning, between making principal or agent party in suit, 856, 359-361. 
 364. 
 
 299 
 
INDEX OF SUBJECTS. 
 
 ELECTION, Continued. 
 
 to rely, or not, on a contract altered by th& other party, 635. 
 
 to rescind contract, or not, 675. 
 
 where, between two things, the one who takes first step elects, 751. 
 
 how, where time for, has gone by, 751. 
 
 ELECTIONS, 
 
 contracts as to, 491. 
 
 EMANCIPATION, 
 
 not, avoid promise to pay for slave sold before, 427. 
 
 EMPLOYMENT, See Sbkticbs. 
 
 one wrongfully turned off must seek other, 683. 
 
 ENDORSEMENT, 
 
 void where made, the same elsewhere, 730. 
 
 ENDORSEE, 
 
 fresh promise by, after release of, 449. 
 
 ENTIRETIES, 
 
 no tenancy by, in goods, 462 
 how, in lands, 462. 
 
 EQUITY, See Ebporm in Equitt. 
 relief in, from fraud, 208, 210-212. 
 relief in, to agent on death of principal, 342. 
 specific performance in, after death of contracting party, 342. 
 how, relieves against statute of frauds, 505. 
 time, how considered in, 752. 
 whether, relieves from liquidated damages, 755. 
 relieves from penalty, 757. 
 
 EQUITY AND GOOD CONSCIENCE, 
 pay for acts done under, 94. 
 
 EQUITY AND LAW, 
 
 concurrent jurisdiction of, in ftaud, 213, 214. 
 ESCROW, 
 
 how, may be lawfully altered, 653, note. 
 
 what, and doctrine of, discussed, 764-766. 
 ESTOPPEL, 
 
 consent to a contract may be by, 184, 187. 
 
 of defrauded maker of negotiable paper by negligence in signing, 195. 
 
 as curing unduly authorized filling of blanks, 374. 
 
 waiver amounting to an, 655, 657, 664. 
 Doctrine of, in its relation to contracts, discussed, 126-137. 
 
 how defined, 127. 
 
 species of contract created by law, 129, 137. 
 
 favored or not, 134. 
 
 EVASION, 
 
 contract made abroad in, of our laws, invalid here, 723, 724. 
 300 
 
INDEX OF SUBJECTS. 
 
 EXECUTED, See Bxkctjtbd Consideration — Exkcuted Contract. 
 
 contracts viewed as, when without consideration, 483. 
 
 including gifts, 434, 436. 
 
 througli mistake, 436. 
 
 illegal, against policy, etc., 437. 
 
 renewal of contract after part execution, 438, 439. 
 
 statute of frauds, g 4, no relation to contracts which are, 502, 546. 
 
 how under the statute where, on one side, 503, 545. 
 
 the, agreement for sale of lands not within statute of frauds, 530, 535. 
 
 recovering consideration for what is, under statute of frauds, 545. 
 
 when Sunday contract has been, how, 487. 
 
 effect of altering written contract after it is, 640, 642. 
 
 effect of a waiver being, 662. 
 
 no rescission after contract is fully, 670, 672. 
 EXECUTED CONSIDEEATION, 
 
 doctrine of, explained, 440-445. 
 EXECUTED CONTRACT, See Executed. 
 
 how, defined, 138, 150. 
 
 effect of, when valid; 139. 
 
 when against law, effect of, 140-142. 
 
 voluntary but not illegal, 143. 
 
 performed under mistake of law or fact, 144, 145. 
 
 void because oral, 147. 
 
 executed on one side, 148. 
 
 all contracts which the law creates are, on one side, 72. 
 
 concerning, when void while executory, 155. 
 
 rescission of infant's, 267. 
 
 law may create, with insane person, 293. 
 EXECUTED AND EXECUTORY, 
 
 distinguished, as to conveyances in fraud of creditors, 712. 
 
 distinction of, in contracts, explained, 138-150. 
 
 EXECUTION, 
 
 lease may be taken on, though it has condition not to transfer, 114. 
 
 EXECUTOR, 
 
 how, responsible for funeral expenses, 256. 
 
 promise by, to personally pay deceased's debt, 514-516. 
 
 original obligation by, 511. 
 
 EXECUTORS, 
 
 are privies, and how related to contract, 716. 
 
 EXECUTORY CONTRACT, 
 how, defined, 138, 150. 
 
 word contract alone meaning executory, 149. 
 never created by law, 72. 
 concerning, when void, 157. 
 infant not bound by, 265. 
 not bind insane person, 292, 293, 299. 
 
 301 
 
INDEX OF SUBJECTS. 
 
 EXISTENCE. See Non-Existkitcb. 
 
 EXPRESS CONTRACT. See Contract. 
 excludes implied, 90. 
 how when void, as to implied, 91-93. 
 infant's contract for necessaries is not, 266. 
 
 whether performance of, excused by act of God or the public enemy, 
 615-631. 
 
 EXPRESS POWER, 
 
 effect of, conferred on agent, 325. 
 
 EXTENSION OF TIME, 
 
 as a consideration, 421. And see 416. 
 agreements for the, 421. 
 
 PACT, See Mistake of Pact. 
 
 distinguished from opinion, in false representation, 219-223. 
 not necessarily presumed to be known, 249. 
 
 FACTOR, 
 
 who, and duties of, defined, 320. 
 how, must sell, 351. 
 
 FAILURE OF CONSIDERATION, See Cousidkkation. 
 effect of, 23, note, 425, 426. 
 caused by act of G-od, 618. 
 rescission by reason of, 674. 
 effect of, determined by law of State of payment, 732. 
 
 FALSE, 
 
 in fraud, representation must be, 217. 
 what the elements of falsity, 217. 
 
 FALSE GRAMMAR, 
 
 disregarded in interpretation, 578, 591. 
 
 FALSE IMPRISONMENT, See Imprisonment. 
 
 effect of contract compelled by, 248. 
 FALSE PRETENCE, 
 
 not justifying indictment, may be actionable fraud, 223. 
 
 by infant, of being of age, effect of, 278. 
 
 FATHER. See Parent and Child. 
 
 FAULT. See Dbtault. 
 
 FAVORED IN LAW, 
 
 whether estoppels are, 134. 
 
 FEE, 
 
 doing official duty no consideration for promise to pa.y more than statu- 
 tory, 411. 
 
 FEMALES, 
 
 when, arrive at majority, 260. 
 302 
 
INDEX OP SUBJECTS. 
 
 FEME COVERT. See Married Women. 
 FICTION OP LAW, 
 
 doctrine of, stated, 137. 
 FIDUCIAIIY RELATION, See Confidbntial Relation. 
 
 one in, not buy of self, 251. 
 
 or, at law, sue self, 253. 
 FILLING BLANKS IN CONTRACTS, See Blank. 
 
 distinction whether under seal or not, 868. 
 
 how in specialties, 369-371, 653, note. 
 
 how in simple contracts, 372, 373. 
 
 estoppel as qualifying the doctrine, 374. 
 
 doctrine of, discussed, 368-374. 
 
 FIRE, 
 
 from ordinary causes, not act of God, 612. 
 
 not excuse common carrier, 614. 
 
 destruction by, of building being erected on contract, 616. 
 
 same of house under lease, 617. 
 
 FORBEARANCE, 
 
 on claim void in law, no consideration, 425. 
 
 a consideration for contract of guaranty, 524. 
 FORBIDDEN, 
 
 law enforces nothing which it has, 457, 458. 
 FORFEITURE, 
 
 how, in lease, waived, 656. 
 FORGERY, 
 
 seller of promissory note, warrants against, 98. 
 
 may be of writing not signed, 167. 
 
 FORMALITIES, See Methods of Contracting. 
 
 what, essential in the creation of contract, discussed, 164-173; among 
 which are — 
 
 what constitutes a sufficient writing, 165. 
 
 what of the signature, 166. 
 
 whether any signature necessary, 167. 
 
 manner of signing, 168. 
 
 reading at the signing, 169. 
 
 with what intent the signing, 170. 
 
 all or part of the names, 172. 
 
 delivery, 172, — discussed, 760-766. 
 FORNICATION. See Illicit Commerce. 
 FOURTEEN, 
 
 age of, as to rape, 280. 
 
 at age of, full capacity for crime, 280. 
 
 how as to marriage, 280. 
 FRACTIONS OF DAY, See Day. 
 
 how, considered in computation, 261, 749. 
 
 303 
 
INDEX OF SUBJECTS. 
 
 PEAUD, See Artifice — Statftm of Fkatjds. 
 how, defined, 190. 
 
 consideration in specialties procured by, 24. 
 what is obtained through, recoverable back, 81, 145. 
 some contracts voidable for, others void, — the sort of voidable, 159. 
 in misreading contract before signing, 169. 
 infant liable for his, 267. 
 mingling with insanity, 291. 
 practised by and on agents, 386-390. 
 element of value on question of, 409. 
 jurisdiction of equity in, 505 and note, 
 attempted, by altering written contract, 639. 
 one adopts the, of assumed agent, by ratifying the contract, 710. 
 US impairing a contract, discussed, 185-227, 249. 
 
 PKESH CONSIDERATION, See CoNsroBRATiON. 
 on personal promise to pay deceased's debt, 514. 
 
 FRESH PROMISE, 
 
 new liability created by, 445. 
 statute of limitations waived by, 447. 
 when, not make good a void contract, 463. 
 
 FUNERAL EXPENSES, 
 
 what are, and who may incur, 256. 
 
 GAMING, 
 
 how, as a crime, etc., 490. 
 
 GENERAL, 
 
 the, in contract, restrained by the specific, 593. 
 following particular, how, 595. 
 
 GENERAL AGENT, 
 
 powers of, distinguished from those of special, 381-885. 
 
 GIFT, 
 
 how, under seal, without consideration, 27. 
 effect of hope of, on contract, 76. 
 agreement to pay not implied from a, 93. 
 invalid before delivery, 434. 
 not recoverable afterward, 434, 441. 
 under seal, good without delivery, 435. 
 executed, not a consideration for a promise, 441. 
 promise viewed as a, as to consideration, 454. 
 by paying another's debt without authority, 706. 
 
 GOOD CONSIDERATION, See Considkration. 
 when adequate or not, 405 and note. 
 
 GOOD FAITH, 
 
 implied in contract, 106. 
 304 
 
INDEX OF SUBJECTS. 
 
 GOODS, See Personal Property — Salb of Goods. 
 meaning of the word, 550, 551. 
 ordered, one presumed to agree to pay for, 74, 90. 
 duress of, whether avoids contract, 245, 247. 
 
 GOTERNMBNT, 
 
 threats hy the, whether avoid contract, 246. 
 GOVERNMENT AGENT, 
 
 not personally liable on contract, 366. 
 
 GKACB, 
 
 days of, on promissory note, 604. 
 
 note, on undertaking of common carrier, 605. 
 
 GKAMMAE. See False Grammar. 
 
 GEANTEE, 
 
 effect of delivering back deed, 671. 
 grantees are privies — rights of, 716. 
 cannot hold deed as escrow, 765. 
 
 GEANTOE'S WOEDS, 
 
 taken strongly against him, 600. 
 
 GEATUITOUS SERVICES. See Sbrviobb. 
 GUAEANTT, 
 
 of part of debt, supports discharge of the rest, 415. 
 
 formalities in contract of, discussed, 517-524. 
 GUAEDIANSHIP, 
 
 effect of statutory, of insane person, 298. 
 
 HALF YEAR, 
 
 how computed in contract, 7\17. 
 HEIRS, 
 
 word, necessary in deed, not in agreement to convey, 587. 
 
 when deed to, valid and when not, 601. 
 
 are privies, and how related to contract, 716. 
 HmDEEING PERPOEMANCE, 
 
 is a breach, — waiver, etc., 695, 696. 
 
 HOLDING OUT, 
 
 effect of, one as agent, 379-385. 
 
 HOURS, See Fractions ot Day. 
 
 generally rejected in legal computation, 747, 749. 
 
 HOUSE, 
 
 word, in deed, includes the land, 104. 
 
 HUSBAND AND WIFE, See Married Women. 
 
 either supporting the other, whether entitled to pay, 83. 
 husband liable for necessaries to wife, 87. 
 
 305 
 
INDEX OF SUBJECTS. 
 
 HUSBAND AND "WIFE, Continued. 
 
 infant husband compellable to pay wife's debts, 117. 
 no tenancy by entireties in goods, 462. 
 whether any other between, in lands, 462. 
 
 IDIOT, See Insane Person. 
 
 inability of, to contract, 285. 
 IGNORANCE, See Mistake. 
 
 of fact of insanity, eflect of, on contract with insane person, 85. 
 
 fraud practised on, 226. 
 
 no waiver by what is done in, of the facts, 658-661. 
 ILLEGAL. See Part Illegal. 
 ILLEGAL CONSIDERATION, See Consideration. 
 
 is void, 418. 
 ILLEGAL CONTRACT, See Illegal ok Immoral — Policy of the Law. 
 
 void, 155, note. 
 ILLEGAL OR BIMORAL, See Part Illegal. 
 
 contracts which are, discussed, 455—497. 
 ILLICIT COMMERCE, 
 
 between the sexes, contracts relating to, 494-496. 
 IMBECELB, See Insane Person. 
 
 inability of, to contract, 285. 
 IMMORAL, See Illegal or Immoral. 
 
 contracts made abroad, not enforceable here, 723. 
 IMMORAL CONSIDERATION, See Consideration. 
 
 is void, 418. 
 IMPERFECT DEED, 
 
 construed to have other effect, 585. 
 IMPLICATION, 
 
 rescission may be by, 668. , 
 
 IMPLIED, 
 
 what powers are, in agent, 345-351. 
 
 something is, in all contracts, 608. 
 
 IMPLIED AUTHORITY, 
 
 simple contract executed by, 330. 
 IMPLIED CONTRACTS, See Implied. 
 
 various sorts of, 5. 
 
 why the law of, 18. 
 
 may be, against corporation, 316. 
 
 as of fact, discussed, 67-71. 
 
 as of law, discussed, 72-94, 109-120. See Crbated by Law. 
 
 implications in express contracts, discussed, 95-106, 121-124. 
 
 estoppels as, discussed, 126-137. 
 
 306 
 
INDEX OF SUBJECTS. 
 
 IMPLIED POWEE, 
 
 corporation has, of contract, and what, 308-313, 317. 
 DEPLIED TRUSTS. See Kesultinq Trusts. 
 IMPOSSIBILITY, 
 
 contract to do an, void, 155, note. 
 
 connected with contract, discussed, 610-631. 
 
 IMPOSSIBLE CONTRACT, See Impossibility. 
 
 void, 611. 
 
 what is an, 612 et seq. 
 IMPRISONMENT, 
 
 effect of contract compelled by, 242. 
 INABILITY, 
 
 of contracting party, entitles other party to rescind, 677, 686. 
 
 also, entitles other party to sue, 689, 690, 703. 
 
 rNACCTIRACY, See Palse Gkammak. 
 
 of language, disregarded in interpretation, 578. 
 INCONVENIENGE, 
 
 contract to do an, valid, 612. < 
 
 does not excuse non-performance, 626. 
 
 INDEMNITY, 
 
 promise of, to the creditor, must be in writing ; not, to debtor, 523. 
 
 INDENTURE, 
 
 meaning of the term, 14. 
 
 whether rule of taking grantor's words strongly against him, applicable 
 to, 600. 
 
 INDEPENDENT, , 
 
 when provisions to be interpreted as, 589. 
 
 INDIRECT MEANS, 
 
 law sustains nothing accomplished by, 456 
 
 INFANCY, See Infant. 
 
 liability of infant for necessaries, 86. 
 
 parent for necessaries to infant, 86. 
 
 contract pf infant created by law, 117, 118. 
 
 some contracts voidable for, others void, — the sort of voidable, 159. 
 
 want of legal capacity during, 259. 
 
 one not of age where lands are situated cannot make good title, though of 
 
 age at place of domicile, 733. 
 contra, as to personal effects, 738. 
 doctrine of, discussed, 260-280. 
 
 INFANT, See Infancy. 
 
 who is, and how age computed, 260, 261. 
 
 may be agent, 332. i 
 
 INPLUBNCE. See Undue Influfnce. 
 
 307 
 
INDEX OF SUBJECTS. 
 
 INITIALS, 
 
 signature may be by the, 166, 173. 
 IN JURY, 
 
 no legal fraud without, 215. 
 INSANE PERSON, See Insanity — "Weak Mind. 
 
 payment for what relief to, enforceable, 85. 
 
 contract by, may be created by law, 116. 
 
 cannot be agent, 331. 
 
 insanity of agent or principal terminates agency, 343. 
 
 capacity of, to contract, discussed, 284-299. 
 INSANITY, See Insane Person. 
 
 some contracts voidable for, others void, — the sort of voidable, 159. 
 INSOLVENCY, See Bankkottct. 
 
 effect of new promise on debt discharged by, 448. 
 
 when, in one country, discharges contract made in another, 736 and note. 
 
 INSPECTION, 
 
 effect of possibility of, on validity of sale, 219. 
 
 INSURANCE, 
 
 against "perils of the sea," valid, 624, 631. 
 
 INSURANCE POLICY, 
 
 whether, good without writing, 50. 
 required, by statute, to be in writing, 567. 
 assignable in bankruptcy, 113. 
 how, interpreted, 606. 
 
 INSURER, 
 
 how far common carrier is, 605. 
 
 INTEGRITY, 
 
 when contract implies warranty of, 99. 
 
 INTENT, 
 
 what, must accompany signature to bind, 170. 
 
 to accompany the act of contracting, 249. 
 
 how affects contracts against law, 465-470. 
 
 interpretation to accord with the parties', 400. 
 
 to ascertain the, the object of interpretation, 575, 589, 591, 609. 
 INTEREST, 
 
 in agent, when prevents withdrawal of agency, 339. 
 
 as damages, follows the law of the forum, 741. 
 
 INTERPRETATION OP CONTRACT, See Parties' Interpret ation — 
 Rule of Interpretation. 
 separate writings interpreted together, 59. 
 to be what will give the instrument legal effect, 400. 
 to be by law of place of intended performance, 731-733, 744. 
 as to whether a provision is for liquidated damages or a penalty, 754. 
 doctrine, governing the, discussed, 674-609. 
 
 308 
 
INDEX OP SUBJECTS. 
 
 INVALID EVERYWHERE, 
 
 that a contract is, if invalid where made, 727-730. 
 INVOLUNTARY DISABILITY, 
 
 not entitle other party to sue till contract time elapsed, 692, note, 703. 
 IRREVOCABLE, 
 
 agency expressed as, terminated at pleasure, 338. 
 
 JOINT PROMISORS, 
 
 presumed promise between, 79. 
 JUDGMENT, 
 
 may be assigned orally, 563. 
 JUDICIAL PROCEEDINGS, 
 
 agreements to obstruct, void, 475. 
 JUDICIAL PROCESS, 
 
 eifect of contract compelled by, 242. 
 
 performance of contract prevented by, 628. 
 JURISDICTION, 
 
 value essential to, 404. 
 JUST, 
 
 contract to be so interpreted as to be, 588. 
 
 KING'S ENEMIES. See Public Enemy. 
 KNOW THE LAW, See Law. 
 
 interpretation on presumption that the parties do, 602. 
 KNOWLEDGE, Sec Pact — Law. 
 
 of the facts essential in waiver, 658-661. 
 
 essential to ratification, 708. 
 KNOWLEDGE OE INSANITY, 
 
 how affects party dealing with the insane person, 291, 294. 
 
 LAND, See Contkyance or Land — Deed or Land — Lease — Title — 
 Vendor and Purchaser. 
 
 corporation may contract to sell, without seal, 315. 
 
 promise to sell, with no promise to buy, 429. 
 
 contract to convey, — what a breach of, 697. 
 
 payment and deed for, in different States, 732. 
 LANGUAGE, 
 
 how, made to convey new ideas, 609. 
 
 LATENT AMBIGUITY, 
 
 nature of, explainable by parol, 581. 
 
 LATENT DEFECT, 
 
 in manufactured article, how, 660. 
 
 309 
 
INDEX or SUBJECTS. 
 
 LAW, See Common Law — Derogation or Law— Equity aub Law- 
 Know the Law — Mistake of Law — Poliot of the Law. 
 what is established by decision as, to be followed, 94, 106. 
 effect, on contract, of misrepresenting the, 220. 
 presumed to be known, 249. 
 jurisdiction of, to reform contract, 237, 238. 
 constitutes a part of every contract, 568, 573, 603. 
 no existence without, 573. 
 
 LAW OF PLACE. See Conflict of Laws. 
 LAW SUIT, 
 
 threat of, not avoid contract, 246, 247. 
 LAWFUL, 
 
 contract to be so interpreted as to be, 583. 
 LAWYER, 
 
 contract for services of, valid, 492. 
 LEAD PENCIL, 
 
 writing and signature with, 165, 173. 
 LEAP TEAK, 
 
 how the 29th Feb. in, computed, 747. 
 LEASE, 
 
 effect of word "void " in, 157. 
 
 of lands, must be in writing, 532. 
 
 buildings under, destroyed by act of God or public enemy 617. 
 
 by what act forfeiture of, waived, 656. 
 LEGAL DOCTRINE, 
 
 how, comes from decisions, 534, note. 
 LEGAL DUTY, See Duty. 
 
 ■ excused by act of God or public enemy, 613. 
 LEGAL FICTIONS. See Fiction of Law. 
 LEGISLATIVE COMMITTEE, 
 
 contract of advocacy before, 492. 
 LETTERS, 
 
 contracting by, discussed, 176-184. 
 LETTING, 
 
 house, carriage, etc., to promote bawdry, void, 496. 
 LEX FORI, 
 
 how, governs in contracts, 719, 737 et seq. 
 LEX LOCI, 
 
 how, governs in contracts, 719 et seq., 744. 
 LICENSE, 
 
 oral, not vary specialty, 33. 
 
 to enter on lands, whether must be in writing, 532-534. 
 
 may be withdrawn, 662. 
 310 
 
INDEX OF SUBJECTS. 
 
 LIGHTNING, 
 
 deemed act of God, 612. 
 
 LIMITATIONS. See Statute of Limitations. 
 LIMITING CARRIER'S LIABILITY, 
 
 provisions in contract, interpreted strictly, 597. 
 LIQUIDATED DA;MAGES, 
 
 what are, 753. 
 
 words, may be construed as penalty, 754. 
 
 provision for, in contracts, discussed, 753-755. 
 LIQUOR SELLING, 
 
 employment la illegal, rendering contract void or not, 466, 471, note. 
 
 contracts contrary to the statutes against, void, 482. 
 LOBBYING CONTRACTS, 
 
 void as against sound policy, 492. 
 LOCOMOTION, 
 
 impossibility of supernatural, deemed act of God, 612, note. 
 LODGmG-ROOM, 
 
 whether agreement for, must be in writing, 532. 
 LORD'S DAY, See SmnDAT. 
 
 contracts violating statutes for observance of, void, 483-488. 
 
 same as a consideration, 488. 
 LOST DEED, 
 
 how, when not recorded, 585. 
 LOyE AND AFFECTION, 
 
 how of, as a consideration, 405. 
 LUCID INTERVAL, See Sober Intbeval. 
 
 insane person's contract in, 286. 
 LUNATIC, See Insane Person. 
 
 inability of, to contract, 285. 
 LYING nsr TRADE, 
 
 how far, tolerated by the law, 219. 
 
 MAIL, 
 
 agreement to repudiate contract for carrying, 491. 
 MAJORITY, 
 
 at what period, commences, 260, 261. 
 
 how age of, computed, 261. 
 MANNER OE PERFORMANCE, 
 
 how, waived, 657, 663. 
 MANUFACTURE, See Defects in Mantjfacturk. 
 
 one may agree to, for particular person and no other, 478. 
 
 agreement for, not a sale, 551. 
 
 not, "goods, wares, and merchandise," 551. 
 
 311 
 
INDEX OF SUBJECTS. 
 
 MARK, 
 
 executing written contract by, 168, 173. 
 
 MAKKIAGB, See Breach op Marriagb Promis]5 — CoifsrDKRATloir 07 
 Markiaqb — Marriage Settlement. 
 when, presumed, 70, 71. 
 what is a voidable, 160. 
 ratification of voidable, 161. 
 as a consideration, 421. 
 
 promise of, on consideration of illicit intercourse, 494. 
 an adequate consideration, 525. 
 when the promise must be in writing, 525, 529. 
 
 MARRIAGE AGREEMENT. See Agreement to Marry. 
 
 MARRIAGE PROMISE. See Promise to Maert. 
 
 MARRIAGE SETTLEMENT, 
 
 when, must be in writing, 527, 528, 539. 
 good, against creditors, 527. 
 
 MARRIAGE STATUS, 
 
 deemed, in law, of value, 404. 
 
 MARRIED WOMEN, 
 
 bonds of, void, 155, note. 
 
 may be agents, 332. 
 
 views of the law of, 281-283. 
 
 MARRY. See Pkomisb to Marrt. 
 
 MEANS. See Indirect Means. 
 
 MEDICAL AID. See Physician. 
 
 MEMORANDUM, 
 
 written, as part of oral contracts, 62, 66. 
 what, under statute of frauds, 509-513. 
 in sale of goods, 553. 
 
 MERCANTILE PAPER, See Negotiable Paper. 
 month in, calendar, 748. 
 
 MERCHANDISE, 
 
 meaning of the word, 550, 551. 
 
 MERGER, / 
 
 of simple contract, in specialty, 31. 
 
 METES AND BOUNDS, 
 
 description by, in deed, controls general words, 594. 
 
 METHODS OP CONTRACTING, See Pormalities. 
 what, by corporation, 314-317. 
 
 MIDNIGHT, See Day. 
 
 a day begins and ends at, 749. 
 312 
 
INDEX OP SUBJECTS. 
 
 MILL, 
 
 •word, In deed, includes the land, 104. 
 
 MINISTEKIAL POWER, 
 may be delegated, 350. 
 
 MmOE. See Infant. 
 
 MISTAKE, 
 
 when, equivalent to fraud, 223, 234. 
 
 effect of, on consideration, 425-427. 
 
 payment under, as to consideration, recoverable back, 416. 
 
 as impairing a contract, discussed, 185-188, 228, 238, 249. 
 MISTAKE OF FACT, See Tact. 
 
 available in defence, 145. 
 
 may prevent contract being void as against law, 465, 466. 
 MISTAKE OF LAW, See Law. 
 
 all presumed to know the law, 144. 
 
 recovering back payment made under, 144, 146. 
 MONET, See CouNTEErEiT Monbt. 
 
 recovering back, paid under contract, 81, 144-148, 150. 
 
 paid to infant, not recoverable over again, 267. 
 
 smaller sum of, not support promise to pay larger sum of, 410. 
 
 recoverable back on failure of consideration, 426. 
 
 when suit lies for, — " demand," etc., 700. 
 MONOMANIAC, See Insane Person. 
 
 inability of, to contract, 285. 
 MONOPOLY. See Eestbaint or Tbade. 
 MONTH, See Time. 
 
 whether, computed as calendar or lunar, 748. 
 
 what is a lunar, and what calendar, 748. 
 
 MOKAL OBLIGATION, 
 
 as a consideration, exploded, 405, 453. 
 
 MOKALITY, 
 
 contracts contrary to, invalid, 459. 
 contracts to violate, not enforceable, 494. 
 
 MOETGAGE, 
 
 corporations may, 813. 
 
 MOPvTGAGBE, 
 
 right of, to sell, 339. 
 
 MOTIVE, 
 
 how, distinguishable from consideration, 403. 
 
 MUTUAL ASSENT, See Consent. 
 
 necessity of, what, and how given, discussed, 174-184. 
 
 313 
 
INDEX OF SUBJECTS. 
 
 MUTUAL PROMISBS, 
 
 as a consideration, 428-431. 
 how, interpreted, 589. 
 
 NAMES OP PARTIES, 
 
 how, in specialties, 21, 22. 
 NATURE OF TRANSACTION, 
 
 to be considered in interpretation, 586. 
 NECESSARIES, 
 
 niiture of infant's promise to pay for, 266. 
 NECESSITY, 
 
 excusing performance of contract, 631. 
 NEGATIVE PROPOSITION, 
 
 how established, by decisions, 265, note. 
 NEGLECT, 
 
 may be a breach of contract, 698. 
 NEGLECT OF DUTY, 
 
 contract for, void, 469. 
 NEGLECT TO REPUDIATE, 
 
 may be ratification of assumed agent's act, 711. 
 NEGLIGENCE, 
 
 estopping defrauded maker of negotiable paper, 195. 
 
 NEGOTIABLE PAPER, See Bill or Exchange— Mekcantilb Papbb- 
 Promissobt Note — Notes and Bills. 
 
 corporations have power to issue, Sll. 
 
 how suit on, may be brought the day it falls due, 702. 
 NEW CONSIDERATION, See Consideration. 
 
 rendering contract good when old imperfect, 488, 439. 
 NINE, 
 
 age of, as to do'i'er, 280. 
 
 NON COMPOS MENTIS, See Insane Pekson. 
 
 inability of, to contract, 285. 
 NON-EXISTENCE, 
 
 of thing, avoids contract, 215. 
 NOTE, See Promissory Note. 
 
 payable in specific articles, how, 699. 
 NOTES AND BILLS, See Bill of Exchaxgb. 
 
 must be in writing, 565, 567. 
 NOTICE, 
 
 of withdrawing offer, 181, 182. 
 
 whether must be. In rescission, 204. 
 
 314 
 
INDEX OF SUBJECTS. 
 
 JTOTICE, Continued. 
 
 giving, of withdrawal of agency, 385. 
 
 what constitutes, 386. 
 
 what, of dissolution of partnership, 396. 
 
 OBLIGATION, See Moral Oblioatiom — Pbbtiotjs OBLiaATioir — Spb- 
 
 CIALTT. 
 
 meaning of the terra, 14. 
 
 void i;i law, no consideration, 425. 
 OBSTRUCTING JUSTICE, 
 
 agreements for, void, 475. , 
 
 OPFER, 
 
 and acceptance of, as constituting a contract or not, 176-184. 
 OFFICE, 
 
 agreement to share profits of, 491. 
 OFFICER, 
 
 when contract of indemnity with, good, 467, 469, 470. 
 
 private eftbrts to influence, when permissible or not, 492, 493. 
 
 contracts with, as to official things, and fees, 493. 
 ONE OF TWO THINGS, 
 
 one impossible, how, 627. 
 
 election, — by which party, 751. 
 OPERATIVE, 
 
 contract to be made, by interpretation, 582, 585. 
 OPINION, 
 
 misrepresenting one's own, as fraud, 220. 
 ORAL, See Parol. 
 
 effect of executing void, promise, 147, 148. 
 ORAL AUTHORITY, See Filling Blanks. 
 
 blanks may be filled by, in written contracts, 372. 
 ORAL CONTRACT, 
 
 eflect of, on specialty, and specialty on it, 30-37. 
 
 no formalities required in executing, 164. 
 
 if good where made, enforceable where writing is required, 722. 
 
 not valid where made, not enforceable in State where writing not required, 
 729. 
 
 doctrine of, and when writing not necessary, discussed, 47-56. 
 
 ORAL EVIDENCE, 
 
 not, contradict writing, 58, 576. 
 OTHER WRITINGS, 
 
 compared with this, in interpretation, 577. 
 
 OWNER, 
 
 eflect on charter party of agent describing himself as, 363. 
 
 315 
 
INDEX OF SUBJECTS. 
 
 PAKDON, 
 
 contracts to procure, good or not, 492 and note. 
 
 PAEENT AND CHILD, 
 
 either supporting the other, whether entitled to pay, 83. 
 liability of parent for necessaries to child, 86. 
 
 PAROL, See Oral Contract — Parol Contract. 
 meaning of the word, 4. 
 contracts by, explained, 2-4, 54, 55, 66. 
 written contract not varied by, 58, 61, 63, 65. 
 
 PAROL CONTRACT, 
 
 by corporation, may be good, 315. 
 PART ILLEGAL, See Illegal or Immoral. 
 
 contract, when good, when not, 471. 
 
 PART PAYMENT, See Payment. 
 how, under statute of frauds, 556. 
 
 PART PERFORMANCE, See Performance. 
 effect of, under statute of frauds, 503-505. 
 
 PARTIES, See Names of Parties — Party. 
 
 whether all, must sign, 171. 
 
 must have interest in the consideration, 419. 
 
 general doctrine as to the requisite, stated, 250-259. 
 PARTIES' INTERPRETATION, 
 
 when, prevail with court, 598. 
 
 PARTITION. See Division Line. 
 
 PARTY, See Parties. 
 
 may allege own insanity, 295. 
 
 cannot be agent for opposite, 335. 
 
 may be agent of opposite, to fill blanks in simple contract in writing, 872. 
 
 effect of, altering written contract, 639, 642. 
 
 not consenting, discharged by alteration of contract, 644. 
 
 PARTNER, See Partnership — Retikinq Partner. 
 
 falsifj'ing as to stock taken, must make representation good, 208. 
 
 party to be deemed, or corporation, according to law of forum, 740. 
 PARTNERSHIP, 
 
 law of, adjusts rights of partners, 569. 
 
 contracts by persona in, discussed, 392-402. 
 
 PAST CONSIDERATION, 
 
 when and how far, will sustain a promise, 442-445. 
 
 PATENT, 
 
 no consideration, if void, 425. 
 
 adequate consideration, though afterward valueless, 427. 
 
 whether doctrines as to restraint of trade extend to, 479, note. 
 
 316 
 
INDEX OF SUBJECTS. 
 
 PAUPER, 
 
 one relieved as a, not compellable to pay, 93. 
 PATMENT, See Part Payment — Place or Payment. 
 
 to infant is good, 267. 
 
 in creditor's counting-room, to one only apparently authorized, 382, note. 
 
 presumption from, of bills contracted by one as agent, 384. 
 
 bow, on Sunday, 487. 
 PENAL ACTION, 
 
 agreement to compound, void, 473. 
 PENALTY, 
 
 relieving from, of recognizance, 44. 
 
 infant's obligation under, void, 271. 
 
 word, may be construed as liquidated damages, 754. 
 
 effect of, in contract, discussed, 756-759. 
 PENCIL. See Lead Pencil. 
 
 PERFORMANCE, See Breach and Performance — Hindering Per- 
 formance — Manner of Performance — Part Performance — Prb- 
 YBNTIN& Performance — Specific Performance — Time of Pbr- 
 formance. 
 
 substantial, where exact, impossible, 627. 
 
 where, forbidden by law, 628. 
 
 prevented by judicial process, 629. 
 
 whether time of, may be waived orally, 650. 
 
 refusal of, ground of suit, 689. 
 
 before time of, may be breach, 690, 703. 
 
 whether, in place of making or not, 731; 
 
 in part, by each of two laws, 732. 
 PERSONAL PROPERTY, See Goods. 
 
 conveyance of, by specialty, good without consideration, 27. 
 
 has no situs, 733. 
 
 PHYSICIAN, 
 
 aid from, in emergency, to be paid, 84. 
 
 how, restrict his practice by agreement, 479. 
 PLACE, .See Conflict of Laws. 
 
 not essential, in contract, 19. 
 PLACE OP PAYMENT, See Payment. 
 
 change of, as to part of debt, a consideration for discharge of rest, 416. 
 PLAINTIFF, 
 
 in suit, to be without fault, 681, 688. 
 
 must be ready to perform, etc., 688, 698. 
 PLEADINGS, 
 
 as to oral, 47. 
 
 things done by agent, how, 318, note. 
 POLICY. See Instjbance Policy. 
 
 317 
 
INDEX OF SUBJECTS. 
 
 POLICY OF THE. LAW, See Illegal ok Immoral. 
 
 meaning of the term, 461. 
 
 contracts contrary to, invalid, 461, 462. 
 POSSESSION, 
 
 servant's, is iixxster's, 318, note. 
 
 whether delivery of writing possible while, remains in maker, 762. 
 POST-MORTEM EXAMINATIOlSr, 
 
 not a funeral expense, 256. 
 POST-OFFICE, 
 
 putting a writing into, a delivery, 763. 
 POWER OF ATTORNEY, 
 
 practical views as to, 402. 
 
 PRECEDENTS, 
 
 .to be followed, 94, 106. 
 PRESCRIPTION, See Custom and Usaqb. 
 
 how as to, 570. 
 PRESUMPTIONS, 
 
 of fact and law, mingle, 68. 
 
 actual contract, presumed, 69. 
 
 marriage presumed, 70, 71. 
 
 of agent's authority for course of dealing, 384. 
 PRETENCE. See False Peetbnce. 
 PREVENTING PERFORMANCE, 
 
 is a breach, — waiver, etc., 695, 696. 
 PREVIOUS OBLIGATION, 
 
 as foundation for fresh promise, 445. 
 
 PRICE, 
 
 what, brings sale within statute of frauds, 552. 
 
 how, where several articles sold together, 552. 
 PRINCIPAL, See Agent. 
 
 being abroad, effect on contract by agent, 357. 
 
 agent's acquisitions are principal's, 355. 
 
 when, and when agent, maintain suit or be sued, 353-366. 
 
 effect of agent not disclosing name of, 357, 359, 360. 
 
 how far, responsible for frauds of agent, 386-388. 
 
 ratification of unauthorized act by, as to agent's fraud, 389 
 
 fraud practised on agent is fraud on, 390. 
 
 must be holden, for guarantor's promise to be within statute of frauds, 519. 
 PRINCIPAL AND AGENT. See Agent. 
 PRINTED, 
 
 parts of contract, how regarded, 599. 
 PRINTED MATTER, 
 
 deemed, in law, written, 165, 173. 
 
 318 
 
INDEX OF SUBJECTS. 
 
 PEIVIES, 
 
 who are, and how relaited to a contract, 716 and note. 
 PEOCEDUEE, 
 
 though contract was made abroad, law of the forum regulates the, 737-744. 
 PEOCESS. See Judicial Process. 
 PEOHIBITED THINGS. See Porbiddbn. 
 
 PEOMISE, See Contract — Pkbsh Promise — Marriage — Mutital 
 Promises. 
 
 false, as fraud, -220-223. 
 
 varying from contract, when binding, 647. 
 PEOMISE TO MAKKY, See Agri!ement to Marry. 
 
 whether, must be in writing, 529. 
 
 when, must be in writing as not to be performed within a year, 538. 
 PEOMISOE. See Joint Promisors. 
 
 PEOMISSOEY NOTE, See Negotiable Paper— Notes and Bills. 
 
 what warranty of, implied in sale, 98. 
 
 delivery essential to, 172. 
 
 executed through fraud, void in hands of innocent holder, 195. 
 
 contra, of fraud in the inducement, 201. 
 
 effect of, on account partly illegal, 471, note. 
 
 whether, "goods, wares, and merchandise," 550. 
 
 interpreted by the law-merchant, 604. 
 
 assignment of, — grace, 604. 
 
 not oral alteration of, 649. 
 
 how, if void where made for want of stamp, 728. 
 PEOPERTY, See Abandoned Property — Land — Personal Property — 
 Sat^ing Property. 
 
 where third person sells one's, who does not interpose his claim, 128. 
 
 infants may take and hold, 263. 
 PEOPOSAIi ACCEPTED, 
 
 when, constitutes contract, 176 et seq. 
 PEOPOSITIONS. See Negative Propositions. 
 PEOSTITUTION, 
 
 contract to encourage, void, 496. 
 PUBLIC ENEMY, 
 
 how defined, 612. ' 
 
 as excusing performance of duty or contract, 610-631. 
 
 agreement to pay damage for the, valid, 624. 
 
 distinction as to the sort of agreement, 625. 
 PUBLIC OEPICEE. See Oppicbr. 
 
 PUBLIC POLICY, 
 
 contracts contrary to, invalid, 460. 
 
 though not understood to be contrary to, 465. 
 
 319 
 
INDEX OF SUBJECTS. 
 
 PUFFING, 
 
 own goods, right of, 219. 
 PUNCTUATION, 
 
 how regarded, in interpretation, 591. 
 PURCHASE, See Sale. 
 
 of goods, brought about by fraud, effect of, 199. 
 
 as to purchaser of purchaser, 200. 
 
 QUALITY, 
 
 of thing sold, when implied warranty of, 97. 
 QUANTITY, 
 
 as to the, of fraud, 224. 
 QUARTER YEAR, 
 
 how, computed in contract, 747. 
 QUESTIONS. See Answer Questioot. 
 
 RAPE, 
 
 not, by boy under fourteen 280. 
 RATIFICATION, 
 
 of voidable contract, how, 161. 
 
 of contract yoidable for fraud, etc., 188, 206. 
 
 when and how, of infant's voidable contract, 276. 
 
 by insane person, of his contract, 296. 
 
 by drunken person, of his contract, 305. 
 
 by principal, of agent's unauthorized covenants, 378. 
 
 how, of Sunday contract, 484. 
 
 of unauthorized contract, how, and effect of, 707-711, 716. 
 READING, 
 
 how far essential before signing, 169, 173. 
 REASONABLE, 
 
 contract to be so interpreted as to be, 588. 
 REASONABLE SPACE, 
 
 defined, in reference to restraint of trade, 479. 
 REASONABLE TIME, 
 
 meaning of, 182. 
 RECEIPT, 
 
 effect of written, and whether orally contradicted, 63. 
 RECEIVER. See Accept and Receive. 
 RECOGNIZANCE, 
 
 what, and doctrine of, 40, 42-46. 
 RECORD, 
 
 may be assigned orally, 563. 
 
 contracts of, discussed, 39-46. 
 
 320 
 
INDEX OF SUBJECTS. 
 
 RECOEDING, 
 
 neglected, and deed lost, 685. 
 
 effect of, as delivery, 763, note. 
 
 of deed, as to cancelling, 671. 
 RECOVERING BACK, 
 
 money paid under contract, 81, 144-148, 150. 
 
 after rescission, 205. 
 
 money paid and consideration failed, 426. 
 
 not, what has been paid on Sunday contract, 487. 
 
 payment on contract within statute of frauds, 504. 
 
 consideration on rescission, 669. 
 
 consideration, etc., after rescission, 680. 
 REFORM IN EQUITY, 
 
 of contract, doctrine of, 236-238. 
 REFUSAL, 
 
 of party, entitles other party to rescind, 677. 
 
 or to maintain suit, 689, 703. 
 
 RELATIONS OF PARTIES, 
 
 considered, in interpretation, 576. 
 RELATIONSHIP, 
 
 effect of, as to presumed contract to pay for services and board, 77. 
 RELEASE, See Rescission. 
 
 effect of, — no consideration, — by one partner, 401. 
 
 by party and by law, differing effects of, 449-452. 
 
 after, by party, fresh promise does not revive debt, 450- 
 
 RELEASE UNDER SEAL, 
 
 good without consideration, 413. 
 REMEDY, 
 
 release of, consideration for guarantor's promise, 524. 
 REPEAL OF STATUTE, 
 
 does not make good a contract which was void under it, 463. 
 
 REPLEVIN. 
 
 reclaiming consideration by, where contract rescinded, 275. 
 
 REPRESENTATION, 
 
 equity compelling parties to make, good, 208. 
 REPUGNANT, 
 
 rejecting part of contract as, 580. 
 
 REQUEST, 
 
 as making valid a past consideration, 443, 444. 
 when, before suit, 700 and note. 
 
 RESCISSION, See Statu Qto. 
 
 as to, of contract with insane person, 85. 
 of offer, how and when, 180-182. 
 
 321 
 
 31 
 
INDEX OF SUBJECTS 
 
 RESCISSION, Continued. 
 
 how, defined, 203. 
 
 when and how, for fraud, 203-205. 
 
 not, after ratification, 206. 
 
 in equity, how, 212. 
 
 by infant, of contract, 267, 276, 277. 
 
 by infant, not itself to be rescinded, 278. 
 
 power of, in Insane person, 295. 
 
 may be oral, of contract required to be in writing, 508. 
 
 when may be, of waiver, 662, 664. 
 
 wrongful, entitles other party to sue, 692. 
 
 of a ratification, 708. 
 
 and release of executory contract, discussed, 665-686. 
 RESTRAINT OP TRADE, 
 
 specialty in, requires consideration, 28. , 
 
 generally void as against public policy, 28. 
 
 how contracts in, regarded, 478, 479 
 
 RESULTING TRUSTS, 
 
 need not be evidenced by writing, 112. 
 
 doctrine of, stated, 113. 
 
 may be created, without writing, 562. 
 
 RETIRING PARTNER, 
 
 notice by, to avoid liability, 396. 
 
 REVENUE LAWS, 
 
 how, far our, respected in other states and countries, 728. 
 
 contract violative of the, of another State, 728. 
 REWARD, 
 
 offer of, and acceptance, constituting contract, 177. 
 
 ROBBERY, 
 
 not, deemed from public enemy, 612. 
 RULE OF INTERPRETATION, See Interpkbtation of Contract. 
 
 no one, supreme over all, 594. 
 
 SABBATH-BREAKING. See Lord's Day. 
 
 SALE, See Authority to Sell — Purchase — Sale or Goods — Sale op 
 Laitds. 
 
 of one's property, by third person, — effect of owner not giving notice, 128. 
 
 eff"ect of, with covenants, by agent authorized only to sell, 378. 
 
 on credit, to agent furnished with the money to paj', 879. 
 
 by agent for less than price authorized, 379. 
 
 takes away agency concerning thing sold, 343. 
 
 whether promise by third person on, is within statute of frauds, 520. 
 SALE OP GOODS, See Sale. 
 
 void, passes no title, 155, 
 322 
 
INDEX OF SUBJECTS. 
 
 SALE OF GOODS, Continued. 
 
 under mistake as to the goods, 198. 
 
 how, aside from statute of frauds, 547. 
 
 as to stoppage in transitu, 661. 
 
 agreement for, broken by selling to third person, 694. 
 
 damage for refusing to accept, 696. 
 
 through what formalities, under statute of frauds, discussed, 547-558. 
 SALE OF LANDS, See Agreement to Contey — Land — Sale — Vendor 
 
 AND PtJKCHASER. 
 
 what agreements fqj the, must be in writing, 530-535 
 SALE OF LIQUOE. See Liquor Sbllinq. 
 SAMPLE, 
 
 warranty implied in sales by, 97. 
 SAVING PROPERTY, 
 
 pay recoverable for, 88. 
 SCHEDULE, 
 
 adding, to specialty, 653, note. 
 
 SCIRE FACIAS, 
 
 recognizance enforced by, 46. 
 
 SCROLL, 
 
 when, a sufficient seal, 16. 
 
 deemed a seal or not, according to law of forum, 758. 
 SEAL, See Common Seal — Specialty. 
 
 what is sufficient, in specialty, 16. 
 
 when necessary to agent's authority to fill blanks in specialt}', 369-371. 
 
 affixed without sealed authority, mere surplusage, 371, 377. 
 
 not best to use, in partnership contracts, 397. 
 
 when used in them, how in form, 898, 399. 
 
 efiect of informalities as to, in firm's deed, 400. 
 
 one partner only cannot use firm's, 399, 402. 
 
 not essential in contract for sale of land, 530. 
 SEALED INSTRUMENT. See Specialty. 
 SEDUCTION. See Criminal Conversation. 
 
 SEISIN, 
 
 is conveyed by insane person's deed, 296. 
 authority to receive, may be oral, 561. 
 
 5ELP, 
 
 cne cannot contract with, 250-253, 259. 
 
 agent cannot deal with, 336, 337. 
 SEPARATE "WRITINGS, 
 
 may be construed as one, 59. 
 SEPARATION FROM BULK, 
 
 essential in sale of goods, 547. 
 
 SERVANT, 
 
 possession of, is master's, 318, note. 
 
INDEX or SUBJECTS. 
 
 SERVICES, See Cakpbntbr Work— Emplotmbnt. 
 
 when party receiving, presumed to agree to pay for, 75-77, 84, 88, 90, 94. 
 
 no compensation for gratuitous, 88, 94. 
 
 contract for, implies warranty of capacity, etc., 99. 
 
 infant's contract for, void if unequal, 269. 
 
 innocent father may recover for illegal, by son, 466. 
 
 during life, agreement for, need not he in writing, 541. 
 
 when agreement for, must be in writing, 542, 543. 
 
 not, "goods, wares, and merchandise," 551. 
 
 act of God as excusing performance of, or not, 618, 620, 622, 623. 
 
 pay for, rendered on rescinded contract, 680, 681, 688. 
 
 not always pay for, which one is merely ready to render, 683, 686. 
 SET-OFF, 
 
 allowable or not, according to law of forum, 742. 
 SEVEN, 
 
 no capability of crime under the age of, 280. 
 
 how between, and fourteen, 280. 
 
 age of, as to marriage, 280. 
 SICKNESS, 
 
 is act of God, 618. 
 
 failure of performance through, 618, 620, 622, 623. 
 SIGNATURE, See Signing. 
 
 how many signatures required, 171. 
 
 what is, of firm, 397, 398. 
 
 to memorandum under statute of frauds, 511. 
 SIGNING, See Signatttkb. 
 
 whether, essential to written contract, 166, 173. 
 
 what is, and how done, 166-171. 
 
 mutual consent evidenced by, 175. 
 
 effect of procuring, by fraud, 192-196. 
 SILENCE, 
 
 extent of right of, while bargaining, 219. 
 SILENT PARTNER, 
 
 liable to be sued for firm's debt, 394. 
 
 firm including, may sue, 395. 
 
 SIMPLE CONTRACT, See Oral Contract — Written Contkact; 
 
 meaning of the term, 14. 
 
 what, and oral and written compared, 54, 55. 
 
 promises implied and created are, 117, 120, 122. 
 
 when, in one country enforced as specialty in another, 738. 
 
 by writing, doctrine of, discussed, 57-66. 
 SIMULTANEOUS, 
 
 mutual promises should be, 431. 
 
 SIMULTANEOUS ACTS, 
 
 breach of contract to perform, how, 697, 703. 
 324 
 
INDEX OP SUBJECTS. 
 
 SLANDER, 
 
 on what ground the action for, 404. 
 
 SOBEE INTEEVAL, See DRuiTKBaf Pkrsok — Drunkenness — Lucid 
 Interval. 
 drunken person's contract in a, 301. 
 
 SOCL^L DUTY, 
 
 pay for acts done in discharging, 94. 
 
 SOUND POLICY, See Illegal Contract. 
 contracts contrary to, invalid, 460. 
 
 SPECIAL PEOPEETY, 
 
 factors have ; brokers, not, 320, 321. 
 auctioneers and common carriers have, 322, 
 
 SPECIALTY, See Deed— Dbee or Land. 
 
 how, defined, 14, 15. 
 
 on what material written, 15. 
 
 what seal required in, 16. 
 
 whether, must be signed, 17. 
 
 delivered, 18. See Delivery. 
 
 date and place of making, 19. 
 
 form of words, 20, 22. 
 
 names of obligor and obligee, 21, 22. 
 
 when consideration required, or not, 23 et seq. 
 
 illegal consideration, 24-26. 
 
 consideration in conveyances of land, 27. 
 
 same in deeds in restraint of trade, 28. 
 
 statutes and local usage as to consideration, 29. 
 
 high nature of, 80, 38. 
 
 rescinding, altering, merger, etc., 31-37. 
 
 views of, restated, 38. 
 
 still deemed written contracts, 66. 
 
 promise created by law not implied promise in, is, 119, 120, 122. 
 
 formalities in executing, 168-171. 
 
 authority of agent to execute, in absence of principal, must be under seal, 
 327. 
 
 but not in presence of principal, 328. 
 
 how of corporation deed, 329. 
 
 agency created by, terminated by parol, 338. 
 
 in what form executed by agent, 353. 
 
 how blanks in, may be filled or not, 369-371, 374. 
 
 reduced to simple contract-by agent filling blank under parol authority, 
 871. 
 
 writing executed as, by agent not authorized to affix seal, is a simple con- 
 tract, 377. 
 
 form of signing and sealing, by partnership, 398-400. 
 
 gift by, good without delivery, 435. 
 
 325 
 
INDEX OF SUBJECTS. 
 
 SPECIALTY, Continued. , 
 
 effect of new promise after release by, 450-452. 
 
 may be assigned orally, 663, 564. 
 
 unauthorized altering of, same as of writing not sealed, >641. 
 
 formalities for altering, with consent, 651-653. 
 
 how the parties inay mutually rescind, 667. 
 
 when, in one country enforced as simple contract in another, 738 
 
 SPECIFIC, 
 
 in contract, restrains the general, 593, 595. 
 SPECIEIO ARTICLES, 
 
 how contracts to furnish or pay in, construed, 699. 
 SPECIFIC PERFORMANCE, 
 
 of some contracts enforced in equity, 685, 686. 
 
 may be enforced, though lapse as to time, 752. 
 
 sometimes time the essence in, 752. 
 
 where contract provides liquidated damages, 755, 
 STAMP. See Unstamped Instrtjments. 
 STATU QUO, See Consideration — REseissiON. 
 
 placing parties in, 203. 
 
 remedies where there can be no, 207. 
 
 how, before suit in equity to rescind, 212. 
 
 whether, in defence of fraud, at law, 213. 
 
 as to rescinding infant's contract, 265, 267, 277. 
 
 putting in, by rescinding insane person, 295. 
 
 placing parties in, on rescission, 679, 686. 
 STATUS. See Marriage Status. 
 STATUTE, See Statutory Duty. 
 
 how contract void as under, affected by repeal, new promise, new statute, 
 463. 
 
 good under, when made, illegal by subsequent, 464. 
 
 modified by principles outside itself, 505. 
 STATUTE OF FRAUDS, See Oral Contract — Sale — Sale op Goods — 
 Sale oe Lands — Written Contract. 
 
 not interpreted to include implied contracts. 111, 112. 
 
 promise created by construction sufficient under, 123. 
 
 effect of, avoided by estoppel, 130, 131. 
 
 effect of executing promise void under, 147, 148, 
 
 how instrument executed under the, 167. 
 
 writing not necessary to authorize agent under, 330. 
 
 memorandum under, made by auctioneer or broiler, 334. 
 
 opposite party cannot be agent to sign memorandum under, 335. 
 
 agreement under, to convey lands, 585, 
 
 contracts in writing under, whether orally altered, 650. 
 Discussed, 498-558 ; namely, — 
 
 history and general view of the, 498-600. 
 326 
 
INDEX OF SUBJECTS. 
 
 STATUTE OF FKAUDS, Continued. 
 
 general doctrine as to contracts voidable if not in writing, 502-513. 
 1 with views as to the memorandum, 509-513. 
 promise by executor and administrator, 514-516. 
 contract of guaranty, 517-524. 
 agreement on consideration of marriage, 525-529. 
 contract of sale of lands, 530-535. 
 agreements not to be performed within a year, 536-545. 
 foregoing doctrines restated, 546. 
 sale of goods void by, 547-558. 
 
 STATUTE OP LIMITATIONS, 
 
 on what principle, a bar, and how waived, 447 and note. 
 
 pleadable or not, according to law of forum, 743. 
 STATUTOET BOND, 
 
 words in, rejected to conform to statute, 584. 
 
 invalid, may be good at common law, 584. 
 
 STATUTORY DUTY, 
 
 one compellable to perform, — pay for performing, 94. 
 
 STOCKS, 
 
 whetlier, "goods, wares, and merchandise," 550. 
 
 STOPPAGE IN TRANSITU, 
 doctrine as to, 661. 
 
 STRANGER, See Thied Person. 
 
 accord and satisfaction from a, 706 and note. 
 STREET, 
 
 implied from bounding land on, 102. 
 
 SUB-AGENT, 
 
 when agent may appoint, or not, 350. 
 
 SUBJECT, 
 
 to be considered in interpreting contract, 586. 
 
 SUE, 
 
 one cannot, himself, 252, 2 
 
 one may, who has legal interest, 355. 
 
 who, on simple contracts though agents, 354-366. 
 SUIT, See Breach — Breach and Performance. 
 
 commencement of, as to stoppage in transitu, 661. 
 
 when, may be commenced, 702. 
 
 on unauthorized contract, ratifies it, 711. 
 
 SUNDAY, See Lord's Day. 
 
 money falling due on, when payable, 701. 
 SUPPORT, 
 
 for life, agreement for, need not he in writing, 540. 
 
 SUPPORT OV CHILD, 
 
 agreement for future, with past, 439. 
 
 327 
 
INDEX OF SUBJECTS. 
 
 SUPRA PROTEST, 
 
 doctrine of accepting and paying, stated, 705. 
 SURETY, See Statute of Frauds. 
 
 presumed promise to indemnify, 78. 
 
 ■when, discharged by alteration of contract, 645. 
 SURETYSHIP, 
 
 ■whether infant's contract of, void, 270 and note. 
 SURPLUSAGE, 
 
 ■words and clauses of contract rejected as, 578, 580, 581, 584. 
 SURRENDER, 
 
 of a contract, a consideration for a new one, 647. 
 SURROUNDINGS, 
 
 of parties, considered in interpretation, 576, 609. 
 
 SWEEPING CLAUSE, 
 
 restrained by ■what goes before, 595. 
 
 TAKE, 
 
 one accepting conveyance, must have capacity to, 258. 
 infants may, 263. 
 
 TECHNICAL LANGUAGE, 
 not essential in contract, 592. 
 
 TELEGRAPH, 
 
 contracting by, discussed, 176-184. 
 
 TEMPEST, 
 
 deemed act of God, 612. 
 TENANCY AT WILL, 
 
 not, by mere oral ■words, 532. 
 
 TENDER, 
 
 as to, on contract, for specific articles, 699. 
 
 of deed or money, on agreement to convey, 697. 
 
 debtor finding creditor and making, 700. 
 
 THIRD PERSON, 
 
 estoppels as to, 128, 135. 
 
 no rescission for fraud after rights of, attached, 203. 
 duress to, not avoid contract, 244. 
 effect as to, of infant's avoiding his conveyance, 277, 
 insane person's conveyance, as to, 297, 299. 
 rights of, protected in contracts through agents, 362. 
 protected as to acts of apparent agents, 881-385. 
 ■when not protected in dealing -with one partner, 393. 
 cannot set up statute of frauds, 506. 
 when, holden, on promise to pay debt, 521. 
 . promise by, on marriage, to be in writing, 528. 
 claim of, to goods sold, 547. 
 
 328 
 
INDEX OF SUBJECTS. 
 
 THIRD PERSON, Continued. 
 
 effect of, altering a contract, 636, 642. 
 
 writing delivered to a, 763. 
 
 delivered to, as an escrow, 765. 
 
 relations of, to a contract, discussed, 704-716. 
 THREATS, See Duress. 
 
 effect of contract compelled by, 243, 246. 
 TIME, See Extension of Time. 
 
 paying part of debt before, supports discharge of rest, 416. 
 
 of performance, whether varied orally, 650. 
 
 giving, to fulfil contract, 697. 
 
 how computed in a contract, discussed, 747-749. 
 
 of the essence of the contract or not, discussed, 750-752. 
 TIME OP PERFORMANCE, 
 
 how, waived, 657, 663. 
 TITLE, See Conveyance or Laotd. 
 
 when implied warranty of, 96. 
 
 to land, depends on law where situated, 732, 738. 
 
 not good, where grantor not there of age, 733. 
 
 TORTS, See Trespass to Property. 
 
 infant liable for his, 267. 
 TRADE, See Restraint or Trade. 
 
 promise to remain and learn a, void without promise to teach, 429. 
 TRANSACTION. See Nature or Transaction — Uphold the Transac- 
 tion. 
 TREAT, 
 
 agreements to, at elections, 491. ^ 
 
 TREES, 
 
 standing, are real estate, 533. 
 
 what contracts concerning, must be written, 533. 
 
 TRESPASS, 
 
 money obtained by, recoverable back, 81. 
 
 TRESPASS TO PROPERTY, 
 
 when promise ef indemnity good to one aiding in a, 467, 468. 
 
 TRUST, See Resulting Trusts. 
 
 express, in lands, created only by writing, 562. 
 
 TRUSTEE, 
 
 cannot deal with self, 251. 
 
 TRUTH, 
 
 may be an element of fraud, 217. 
 
 TWELVE, 
 
 age of, as to marriage, 280. 
 
 TWENTT-ONB, 
 
 as age of majority, 260, 261, 280, 
 
 329 
 
INDEX OF SUBJECTS. 
 
 UNAUTHOEIZED PERSON, 
 
 paying another's debt, 705, 706 
 msrCEETAINTY, 
 
 of meaning, may render contract void, 581. 
 UNDISCLOSED PARTNER. See Silent Paktitee. 
 UNDUB ADVANTAGE, 
 
 effect of, on contract of drunken person, 302, 303. 
 UNDUE INFLUENCE, 
 
 in contract with insane person, 291 
 UNEQUAL CONTRACT, 
 
 between infant and adult, void, 269. 
 
 UNLAWFUL, 
 
 contract becoming, performance excused, 628, 631. 
 UNLAWFUL AGREEMENT, 
 
 not made valid bj' being under seal, 24. 
 UNLAWFUL COHABITATION. See Illicit Commerce. 
 UNLAWFUL IMPRISONMENT. See False Imprisonment. 
 UNLICENSED EMPLOYMENT, 
 
 one innocently engaged in, may enforce pay for services, 466. 
 UNSOUND MIND. See Insane Person. 
 UNSTAMPED INSTRUMENTS, 
 
 void where made, how elsewhere, 728. 
 UNWRITTEN, 
 
 contract created by law not deemed, 115. 
 UPHOLD THE TRANSACTION, 
 
 contract to be so interpreted as to, 582, 584, 585. 
 USAGE, See Custom and Usage. 
 
 how, under contracts made in one State and drawn in question in another, 
 721, 726, 741. 
 
 VALID EVERYWHERE, 
 
 contract is, if valid where made, 720-726. 
 VALUE, 
 
 what is meant by, 404. 
 
 the vital element in a consideration, 4047-406. 
 
 distinction whether, if consideration is fixed by law or not, 409-412. 
 VENDOR AND PURCHASER, See Convetancb of Land — Sale op 
 Lands. 
 
 contract by corporation to sell land, not under common seal, 315. 
 VERBAL. See Oral Contract. 
 VERBAL AUTHORITY, 
 
 suflScient for executing written contract, 330. 
 VICIOUS ANIMAL. See Animal. 
 330 
 
INDEX OF SUBJECTS. 
 
 VOID, 
 
 meaning and effect of the term as applied to contracts, 152, 154, et seq. 
 
 use of term, for "voidable," 157. 
 
 what contracts are, through fraud, mistake, duress, 194, 229-231, 241, 249. 
 
 what contracts by infants are, 265, 268-271, 273, 280. 
 
 effect of infant's contract when, 274. 
 
 whether insane person's contract is, 296, 299, 306. 
 
 drunkard's contract is not, 304. 
 
 contracts within statute of frauds, § 4, not, but voidable, 506. 
 
 agreement of sale of goods is, if contrary to statute of frauds, 557, 558. 
 
 contract not, but voidable, after being wrongfully altered, 636. 
 VOID AND VOIDABLE, 
 
 in contracts, discussed and defined, 151-163. 
 VOIDABLE, 
 
 meaning and effect of the term, as applied to contracts, 152, 158, et seq. 
 
 what contracts are, through fraud, mistake, duress, 198, 232, 240, 249. 
 
 what contracts by infants are, 264, 267, 272, 273, 280. 
 
 effect of, 275-277. 
 
 different kinds of, in infant's contract, 276, note. 
 
 insane person's contract as, 296, 297, 299, 306. 
 
 drunkard's contract is, 304. 
 
 contract within g 4, statute of frauds, 506. 
 
 contract is, after being wrongfully altered, 636. 
 
 rescission of contract which is, 673, 674. 
 
 by matter subsequent, 674. 
 
 "WAGER, 
 
 whether, enforceable, 489. 
 WAIVER, 
 
 of right to have contract read before signing, 169. 
 
 of right to sue principal or agent, 364, 365. 
 
 of imperfection in the consideration, 446-453. 
 
 doctrine of, stated, 446. 
 
 of written agreement by oral words, 646. 
 
 doctrine of, discussed, 655-664. 
 WAR, 
 
 losses by, deemed from public enemy, 613. 
 WARES, 
 
 meaning of the word, 550, 551. 
 WARRANTY, 
 
 when and what, implied from sale of goods and lands, 96-98, 101-104. 
 
 implied in acting as agent, contracting to do work, etc., 99, 100. 
 
 estoppel operating as, 129. 
 WAY. See Street. 
 WEAK MIND, See Insane Person. 
 
 fraud practised on, 225. 
 
 inability of, to contract, 285. 
 
 331 
 
INDEX OF SUBJECTS. 
 
 WIPB. See Husband and Wipe — Married Women. 
 WILL, See Tenancy at 'Will. 
 
 estoppel as to, 133^ 
 
 less capacity required to make, than do other acts, 288. 
 
 agreement to pay by, need not he in writing, 544. 
 
 WITNESSES, 
 
 whether, essential to written contract, 173. 
 
 agreement for, to withhold testimony, etc., void, 475. 
 WOOD, 
 
 specialty written on, not good, 15. 
 
 WOEDS, 
 
 interpreted according to meaning intended, 678. 
 
 when all, have some effect, 579. 
 
 when part of the, rejected as surplusage, 580, 681. 
 
 meanings of the, 590, 592, 593, 602. 
 
 how, variable in meaning, 609. 
 WORK. See Services. 
 WRITING, See Other WKiirNGS. 
 
 what is, 165. 
 
 all the, considered in interpretation, 577. 
 WRITING OBLIGATORY, See Specialty. 
 
 meaning of the term, 14. 
 WRITTEN, 
 
 contract created by law not deemed, 115, 119, 125. 
 
 implied by accepting deed-poll, not, 119. 
 
 how far parts, distinguished from printed, 599. 
 WRITTEN CONTRACT, See Deliv^bry. 
 
 how distinguishable from oral, 4. 
 
 not under seal, defined, 57. , 
 
 how, signed and delivered, 165-173. 
 
 writing not required to authorize agent to execute a simple, 330. 
 
 simple, how executed by agent, 354-366. 
 
 not orally contradicted, 355. 
 
 filling blanks in simple, 372, 373. 
 
 oral altering of, where contract invalid without writing, 648-650. 
 
 not under seal, may be orally altered by the parties, 645, 654. 
 
 even though it contains a clause forbidding, 646. 
 
 all is thus made oral, 647. 
 
 how the parties may mutually rescind, 667. 
 
 doctrine of, discussed, 67-66. 
 WRONGS, 
 
 infant liable for, inflicted by him, 267. 
 
 TEAR, 
 
 not to be performed within a, 536-545. 
 how, computed in contract, 747. 
 
 332 
 
Iin)EX TO THE OASES OITED. 
 
 Note. — The name of tlie plaintiff stands first, except wliere the State, Com- 
 monwealth, Begina, or the like, is plaintiff; then the name of the defendant 
 is put first. The references are to the sections. 
 
 
 Section 
 
 ' TT-.;4.«.J G4-a4.«« — 
 
 584 
 
 Abbot V. Wilbur, 
 
 184 
 
 Abbott V. Baltimore, etc., 
 
 Steam 
 
 Packet, 
 
 308 
 
 Abbott V. Cobb, 
 
 858 
 
 Abbott V. Gatch, 
 
 698 
 
 Abbott 1!. Gilchrist, 
 
 551 
 
 Abbott V. Shepard, 
 
 176 
 
 Abbott V. "Williams, 
 
 435 
 
 Abeel v. Eadcliff, 
 
 513 
 
 Abrams i;. Suttles, 
 
 428 
 
 Abshire v. Mather, 
 
 495 
 
 Acheson v. Miller, 
 
 418 
 
 Ackerman v. Cook, 
 
 361 
 
 Adam v. Kerr, 
 
 738 
 
 Adams v. Bean, 
 
 171 
 
 Adams ». Bourne, , 
 
 375 
 
 Adams v. Cosby, 
 
 90 
 
 Adams v. Flanagan, 
 
 380 
 
 Adams v. Frye, 
 
 639 
 
 Adams v. Gay, 
 
 720 
 
 Adams v. Hill, 
 
 657 
 
 Adams v. King, 
 
 601 
 
 Adams v. McMillan, 
 
 510 
 
 Adams v. New York, 
 
 fi98 
 
 Adams v. Nichols, 
 
 616 
 
 Adams v. Ross, 
 
 273 
 
 Addison v. Gandasequi, 
 
 364 
 
 Adler v. Friedman, 
 
 649 
 
 Adsetts V. Hives, 
 
 653 
 
 Ager V. Duncan, 
 
 712 
 
 Seotiok 
 
 Aicardi v. Craig, 506 
 
 Aikin v. Bloodgood, 35 
 
 Akerly v. Vilas, 678 
 Alabama, etc., Eailroad v. Kidd, 572 
 
 Alcinbrook v. ^all, 443 
 
 Alden v. Blague, 34 
 
 Alderton v. Buchoz, 557 
 
 Aldous V. Cornwell, 639, 641 
 
 Aldrich v. Ames, 523 
 
 Aldrioh v. Jewell, 519 
 Aldridge v. Decatur Branch Bank, 485 
 
 Aldridge v. Turner, 407, 521 
 
 Alexander v. Pierce, 242 
 
 Alexandria Canal v. Swann, 737 
 
 Alger V. Scoville, 522 
 
 Alger V. Thacher, 28, 478 
 
 Alida, The, 62 
 
 Allard v. Smith, 529 
 
 Allen V. Atkinson, 688 
 
 Allen V. Bratton, 631 
 
 Allen V. Burlington, 81 
 
 Allen V. Cooper, 750 
 
 Allen V. Davis, 569 
 
 Allen V. Davison, 445 
 
 Allen V. Florence, 27 
 
 Allen V. Gardiner, 483 
 
 Allen V. Jarvis, 551 
 
 Allen V. McKean, 94 
 
 Allen V. Moss, 498 
 
 Allen V. Ogden, 375 
 
 Allen V. Pancoast, 563 
 333 
 
INDEX TO CASES CITED. 
 
 
 Section 
 
 Allen V. Pegram, 
 
 357 
 
 Allen V. Prater, 
 
 425 
 
 Allen V. Webb, 
 
 676 
 
 Allen V. Woodward, 
 
 443 
 
 Aller V. Cameron, 
 
 132 
 
 Allis V. Billings, 
 
 296 
 
 Allis V. Read, 
 
 174 
 
 Allis, State v. 
 
 568 
 
 AllsbQuse V. Ramsay, 
 
 729 
 
 AUsopp V. Wheatcroft, 
 
 28, 479 
 
 Alsept V. Eyles, 
 
 612 
 
 Alston V. Boyd, 
 
 285 
 
 Alves V. Hodgson, 
 
 728 
 
 Amburger v. Marvin, 
 
 542 
 
 American Express Co. v. Pinck- 
 
 ney, 599 
 Ames V. St. Paul, etc., Railroad, 360 
 
 Amies u. Stevens, 612 
 
 Ammidown-B. Woodman, 702 
 
 Anderson v. Baughman, 582 
 
 Anderson v. Burnett, 215 
 
 Anderson v. Parns, 467 
 
 Anderson v. Hayman, 520 
 
 Anderson v. Hill, 213 
 
 Andrews v. Allen, 367 
 
 Andrews v. Herriot, 738 
 
 Andrews v. Ives, 438 
 
 Andrews v. Jones, 527 
 
 Angel V. Pownal, 375 
 
 Angell V. Duke, 534« 
 Anglo-Egyptian Nav. Co. v. Ren- 
 
 nie, 618 
 
 Annan v. Merritt, 505 
 
 Anonymous (15 East, 407), 380 
 Anonymous (1 Ld. Raym. 480), 261, 
 747, 749 
 
 Anonymous (Lofft, 398), 595 
 
 Anonymous (7 Mod. 38), 19 
 
 Anspach v. Bast, 626 
 
 Antoni v. Belknap, 343 
 
 Aortson v. Ridgway, 218 
 
 Appleman v. Pisher, 572 
 
 Appleton V. Bascom, 78 
 
 Appleton V. Binks, 353 
 
 Appleton V. Chase, 428 
 
 Archer v. Burden, 35 
 334 
 
 Section 
 
 Archer v. Marsh, 479 
 
 Arden v. Patterson, 477 
 
 Arfridson v. Ladd, 357 
 
 Argenbright D. Campbell, 236 
 
 Armfleld v. Tate, 276, 496 
 
 Armor v. Cochrane, 251 
 
 Armote v. Bream, 19 
 
 Arms V. Ashley, 65 
 
 Arms V. Burt, 560 
 
 Armstrong v. Huffstutler, 219 
 
 Armstrong v. McGhee, 170 
 
 Armstrong v. Stokes, 357 
 
 Armstrong v. Toler, 458 
 
 Arnold v. Dresser, 449 
 
 Arnold v. Park, 414, 416 
 
 Arnold v. Potter, 726 
 Arnold v. Richmond Iron Works, 296 
 
 Arnold v. United States, 759 
 
 Arrington v. Burton, 373 
 
 Arrington v. Porter, 508 
 
 Arrison v. Harmstead, 640 
 
 Arter v. Byington, 140 
 
 Ashburne v. Gibson, 495 
 Ashbury Railway, etc., Co. v. 
 
 Riohe, 707 
 
 Astley, United States v. 399 
 
 Ateheson v. Mallon, 481 
 Atlanta and West Point Railroad 
 
 V. Speer, 578 
 
 Attix V. Pelan, 65 
 Attorney General v. Life Ins. 
 
 Co., 311 
 
 Attwood V. Small, 215 
 
 Atwood V. Lucas, 547 
 
 Audenried v. Betteley, 355 
 
 Aurora v. Cobb, 65 
 Aurora, etc., Ins. Co. v. Eddy, 600 
 Australasian Steam Nav. Co. v. 
 
 Morse, 631 
 Avery 1). Halsey, 468 
 Aves, Commonwealth v. 723 
 Await V. Eutaw Building Asso- 
 ciation, 143 
 Ayer v. Hutchins, , 469 
 Ayerst v. Jenkins, 494 
 Ayres v. Audubon, 739 
 
INDEX TO CASES CITED. 
 
 
 Section 
 
 Babcock «. Kaymond, 
 
 177 
 
 Babcock v. Thompson, 
 
 140 
 
 Babcock v. "Wilson, 
 
 428 
 
 Bacb V. Owen, 
 
 557 
 
 Backentoss v. Speicher, 
 
 221 
 
 Bacon v. Bowdoin, 
 
 104 
 
 Bacon t». Bronson, 
 
 223 
 
 Bacon v. Mississippi Ins. 
 
 Co., 311 
 
 Bacon v. Sondley, 
 
 357 
 
 Badcock v. Steadman, 
 
 765 
 
 Badger v. Phinney, 
 
 275 
 
 Badger v. Williams, 
 
 485 
 
 Badon v. Bahan, 
 
 498 
 
 Bailey v. Buck, 
 
 473 
 
 Bailey v. Bussing, 
 
 418, 445 
 
 Bailey v. Chapman, 
 
 321 
 
 Bailey v. Clay, 
 
 700 
 
 Bailey v. Day, 
 
 410, 412 
 
 Bailey v. Ogden, 
 
 513 
 
 Bailey v. Rogers, 
 
 758 
 
 Bailey v. Smock, 
 
 215 
 
 Bailey i>. "Walker, 
 
 407 
 
 Bain v. Brown, 
 
 251 
 
 Bain v. Lyle, 
 
 629, 630 
 
 Baird's Case, 
 
 392 
 
 Baird v. Blaigrove, 
 
 36 
 
 Baker v. Chambles, 
 
 358 
 
 Baker v. Dening, 
 
 168 
 
 Baker v. F arris, 
 
 475 
 
 Baker v. Preeman, 
 
 327 
 
 Baker v. Lovett, 
 
 264, 272 
 
 Baker v. Manufacturers' 
 
 Lis. Co., 624 
 
 Baker v. Morris, 
 
 759 
 
 Baker v. Morton, 
 
 243 
 
 Baker v. Painter, 
 
 152 
 
 Baker v. Stoughton, 
 
 699 
 
 Baker v. Thayer, 
 
 94 
 
 Baldwin v. Parnsworth, 
 
 657 
 
 Baldwin v. Leonard, 
 
 857 
 
 Baldwin v. Palmer, 
 
 508, 504 
 
 Baldwin v. "Williams, 
 
 550 
 
 Baldy v. Stratton, 
 
 494 
 
 Bales V. Weddle, 
 
 669 
 
 Ball V. Ball, 
 
 498 
 
 Ball V. Dunsterville, 
 
 16, 328, 399 
 
 Ball V. Lively, 
 
 223 
 
 Ballantine v. Goldlng, 
 Ballard v. McKeuna, 
 Ballew V. Clark, 
 Baltes V. Ripp, 
 Baltimore v. Bschbacb, 
 
 Section 
 736 
 85, 91 
 295 
 127 
 385 
 
 Baltimore, etc., Railroad «. Brady, 597 
 Baltimore, etc.. Railroads. Clark, 448 
 Baltzen v. Nicolay, 100 
 
 Banchor v. Mansel, 463 
 
 Bancroft v. Abbott, 706 
 
 Bancroft v. Dumas, * 458 
 
 Bangor Boom Corp. u. "Whiting, 709 
 Bank of Cape Pear v. "Wright, 358 
 Bank of Columbia v. Patterson, 315 
 Bank ofCommercei). "Union Bank, 145 
 Bank of Orleans v. Torrey, 251 
 
 Bank of Port Gibson t>. Baugh, 256 
 Bank of Rochester v. Monteath, 357 
 Bank of "Washington v. Brent, 341 
 Banks v. Crossland, ' 506 
 
 Banks, The v. Poitiaux, 315 
 
 Banks v. "Werts, 484 
 
 Bannon v. Bean, 534, 
 
 Banorgee v. Hovey, 31, 327, 400 
 
 Barber v. Lyon, 669, 679 
 
 Barber v. Terrell, 713 
 
 Barclay v. Breckinridge 475 
 
 Barden v. Southerland, 22 
 
 Bardwell v. Roberts, 49 
 
 Barfleld v. Price, 204 
 
 Barger v. Miller, 353 
 
 Barickman v. Kuykendall, 680 
 
 Barker v. Bradley, 522 
 
 Barker v. Bucklin, 522 
 
 Barker v. St. Quintin, 44 
 
 Barker v. Troy and Rutland Rail- 
 road, 646 
 Barksdale v. Elam, 630 
 Barlow v. Planters' Bank, 701 
 Barlow v. Smith, 442, 647 
 Barlow v. "Wiley, 219 
 Barnard v. Campbell, 127 
 Barnard v. Crane, 140 
 Barnard v. Macy, 342 
 Barnard v. "Whipple, 534 
 Barnard v. Yates, 97 
 
 335 
 
INDEX TO CASES CITED. 
 
 Sbctiok 
 
 Bamet v. Dougherty, 534 
 
 Barnet v. Smith, 63 
 Bamett v. Stanton, 218, 679 
 
 Barney v. Keith, 124 
 
 Barney v. 'Worthington, 692 
 
 Barns v. Hatch, 763 
 
 Bamum v. Barnum, 783 
 Baron v. Placide, 679, 588 
 
 Barr v. Keitz, 547 
 
 Barr v. Schroeder, 339 
 
 Barren i>. Trussell, 524 
 
 Barrett v. Deere, 382 
 
 Barrett v. Hard, 750 
 Barringer v. "Warden, 428, 521 
 
 Barron v. Benedict, 49 
 
 Barrow v. Ker, 179 
 Barry u. Merchants' Exchange, 308, 
 
 310 
 
 Barry v. Page, 360 
 
 Bartholomew v. Jackson, 76 
 
 Bartlett v. Drake, 267 
 
 Bartlett v. Henry, 200 
 
 Bartlett v. Hoppock, 97 
 Bartlett v. Vinor, ' 458 
 
 Bartley v. Hodges, 786 
 
 Barton v. Fitzgerald, 593 
 
 Basford v. Pearson, 635 
 
 Baas V. Randall, 357 
 
 Bassett v. Bassett, 690 
 
 Bates V. Butleii 242 
 
 Bates V. Starr, • 421 
 
 Bath V. Freeport, 94 
 
 Batsford v. Every, 483 
 
 Batty V. Carswell, 375 
 
 Baum V. Dubois, 377 
 
 Bavington v. Clarke, 278 
 
 Baxter v. Clark, 394 
 
 Baxter v. Duren, 321 
 
 Baxter v. Lamont, 375 
 
 Baxter v. Portsmouth, 85 
 
 Bayler v. Commonwealth, 585 
 
 Bayley v. Taber, 458 
 
 Baylis v. Dinely, 271 
 
 Bayliss v. Pricture, 680 
 
 Beach «. Covillard, 667 
 
 Beach v. Vandenburgh, 706 
 336 
 
 
 Section 
 
 Beadle v. Whitlock, 
 
 
 445 
 
 Beale v. Hayes, 
 
 
 753 
 
 Beall V. Bidgeway, 
 
 621 
 
 542 
 
 Beaman v. Buck, 
 
 
 148 
 
 Beaman v. Kussell, 
 
 
 523 
 
 Bean v. Atwater, 
 
 
 589 
 
 Bean v. Burbank, 
 
 
 429 
 
 Bean v. Parker, 
 
 
 171 
 
 Bean v. Valle, 
 
 
 612 
 
 Beard v. Dennis, 
 
 
 478 
 
 Beard v. Kirk, 
 
 
 385 
 
 Beardslee v. Richardson, 
 
 
 422 
 
 Beardsley v. Hall, 
 
 
 347 
 
 Beardsley v\ Knight, 
 
 
 16 
 
 Beaty v. Gingles, 
 
 
 516 
 
 Beaty v. Knowler, 
 
 
 307 
 
 Beaumont v. Reeve, 
 
 445, 453 
 
 494 
 
 Beavan u. McDonnell, 
 
 
 294 
 
 Beawfage's Case, 
 
 
 24 
 
 Bebee v. Moore, 
 
 
 524 
 
 Beckham v. Drake, 
 
 359 
 
 394 
 
 Beckner v. Carey, 
 
 
 421 
 
 Beckwith v. Butler, 
 
 
 289 
 
 Beckwith v. Prisbie, 
 
 145 
 
 247 
 
 Becton v. Ferguson, 
 
 
 663 
 
 Bedow's Case, 
 
 
 20 
 
 Bee Printing Co. v. Hichbom, 681 
 
 Beers v. Crowell, 550 
 
 Beeson v. Patterson, 600 
 
 Beetem v. Burkholder, 203, 204 
 Begbie v. Phosphate Sewage Co., 712 
 
 Behrens v. McKenzie, 85, 291, 294 
 
 Belcher v. Belcher, 301 
 
 Belden v. Henriques, 218 
 
 Belden v. Meeker, 68 
 Belfast, etc.. Railway v. Unity, 179 
 
 Bell V. Byerson, 219 
 
 Bell V. Cafferty, 98 
 
 Bell V. Ellis, 221 
 
 Bell V. Henderson, 219 
 
 Bell V. Quick, 369 
 
 Bell V. Quin, 458 
 
 Bell V. Wood, 473 
 
 Beller v. Block, 322 
 
 Beller v. Jones, 285 
 
 Bellows V. Russell, 481 
 
INDEX TO CASES CITED. 
 
 Beloit Back v. Seale, 
 Bemis v. Becker, 
 Bender v. Sampson, 
 Benedict v. Bebee, 
 Benedict v. Miner, 
 
 Section 
 711 
 458 
 413 
 534 
 658 
 
 Benedict v. National Bank, 161, 198 
 Beninger v. Corwin, 97 
 Bennehan v. Webb, 578, 600 
 Benners v. Clemens, 731 
 Bennett, Ex parte 337 
 Bennett v. Ford, 247 
 Bennett v. Isaac, 137 
 Bennett v. Judson, 223 
 Bennett v. Phelps, 148 
 Bennett v. Woolfolk, 463 
 Bennington Iron Co. v. Ruther- 
 ford, 308, 310 
 Bensell v. Chancellor, 295 
 Benson v. Matsdorf, 112 
 Benson v. Monroe, 143 
 Bent V. Cobb, 251, 335 
 Bergen v. Bennett, 342 
 Berkely v. Hardy, - 327, 353 
 Berkley v. Cannon, 300 
 Berks and Dauphin Turnpike 
 
 Koad V. Myers, 312 
 
 Bernard v. Bernard, 699 
 
 Berry v, Doremus, 545 
 
 Berry v. Ensell, 547 
 
 Berry v. Wisdom, 577, 754 
 
 Berryman v. Hewit, 61, 677 
 
 Bersch v. Sander, 698 
 
 Besford v. Saunders, 448 
 
 Besshears v. Eowe, 49 
 
 Bettini v. Gye, 630 
 
 Bickford v. Cooper, 588 
 Bickford v. First National Bank, 357 
 
 Biddis V. James, 458 
 
 Bieber v. Beck, 178 
 
 Bierce v. Stocking, 425 
 
 Bigelow V. Stilphen, 637, 638 
 
 Bigelow V. Willson, 749 
 
 Biggers v. Pace, 697 
 
 Bigler v. Flickinger, 219 
 
 Bill V. Bament, 510 
 
 Bill V. Barker, 621 
 
 Section 
 
 Billings V. Ames, 479 
 
 Billingsley v. Dempewolf, 519 
 
 Bingham v. Kimball, 419 
 
 Bingham v. Sessions, 245 
 
 Bingham v. Stewart^ 857 
 
 Birckhead v. Cummins, 532 
 
 Bird V. Astcock, 612 
 
 Bird V. Decker, 168 
 
 Bird V. McElvaine, 53 
 
 Bird V. Meadows, 492 
 
 Bird V. Muhlinbrink, 551 
 Birdsong v. Birdsong, 225, 227, 303 
 
 Birks V. Trippet, 700 
 
 Bisel V. Hobbs, 394 
 
 Bishop V. Morgan, 22 
 
 Bishop V. Newton, 698 
 
 Bissig V. Brittou, 623 
 
 Bixby V. Moor, 471 
 
 Bixby V. Whitney, 699 
 
 Bixler v. Ream, 647 
 
 Black V. Hills, 277 
 
 Blacks V. Catlett, 210 
 
 Blackstone v. Buttermore, 338, 339 
 
 Blackwell v. Fosters, 700 
 
 Blackwell v. Hamilton, 16 
 
 Blades v. Clark, 341 
 
 Blair v. Hardin, 101 
 
 Blakeman v. Mackay, 357 
 
 Blakemore v. Wood, 758 
 
 Blakey v. Dinsdale, 555 
 Blanchard v. First Association of 
 
 Spiritualists, 706 
 
 Blanchard v. McDougal, 505 
 
 Blanchard v. Russell, 720, 734 
 
 Blanchard v. Weeks, 637 
 Blanchard' s Gun-stock Turning 
 
 Factory v. Warner, 308, 310 
 
 Bland v. Womack, 422 
 
 Blanding v. Sargent, 537 
 
 Blane v. Proudflt, 380 
 
 Blasdell v. Bissell, 594 
 
 Blattmacher v. Saal, 693 
 
 Blenkinsop v. Clayton, 555 
 
 Blevins v. Alexander, 702 
 
 Blight V. Banks, 685 
 
 Blinn v. Chester, 414 
 337 
 
INDEX TO CASES CITED. 
 
 Section 
 Blisa V. Brainard, 723, 727 
 Bliss V. Connecticut, etc., Kail- 
 road, 287 
 Bliss V. Matteson, 480 
 Bliss V. Swartz, 412 
 Bliss V. Thompson, 534 
 Block V. Elliott, 213 
 Blood V. Enos, 669, 695 
 Blood V. French, 322 
 Blood V. Goodrich, 327 
 Bloom V. Eichards, 483 
 Bloomer v. Bernstein, 677 
 Blossom V. Barrett, 693 
 Blount V. Hawkins, 523 
 Blunt V. Walker, 315 
 Bly V. Second National Bank, 418 
 Blydenburh v. Welch, 219 
 Board of Education v. Greene- 
 
 baum, 316 
 
 Boardman v. Gore, 372 
 
 Boardman v. Spooner, 513, 572 
 
 Boardman v. Williams, 653 
 
 Boast V. Eirth, - 620- 
 
 Boatright v. Wingate, 627 
 Bobbett V. Liverpool, etc., Ins. 
 
 Co., 59 
 
 Bodley v. Ferguson, 587 
 
 Bogart V. De Bussy, 353 
 
 Bohannon v. Jones, 523 
 
 Bohannon v. Pace, 506 
 
 Boies V. Vincent, 430 
 
 Boinest v. Leignez, 322 
 
 Boit V. Maybin, 97 
 
 Bolton V. Carlisle, 27 
 
 Bolton V. Tomlin, 502 
 
 Bona V. Davant, 493 
 
 Bond V. Aitkin, 399 
 
 Bond V. Bond, 285, 289 
 
 Bond V. Bunting, 434 
 
 Bond V. Cutler, 758 
 
 Bond V. Hays, 145 
 
 Boner v. Mahle, 602 
 
 Bonney v. Smith, 339 
 
 Booker, Ex parte 657 
 
 Bool V. Mix, 272 
 
 Boone v. Clarke, 340 
 338 
 
 Section 
 
 Boone v. Moore, 601 
 
 Booth V. Bank of England, 456 
 
 Booth V. Smith, 415 
 Booth V. Spuyten Duyvil Rolling 
 
 Mill Co., 625 
 
 Booth V. Tyson, 589 
 
 Boothby v. Scales, 69, 347 
 
 Boothe V. Eitzpatrick, 88 
 
 Borel V. Eollins, 347 
 
 Borum v. Garland, 667 
 
 Bosler v. Eeheem, 655 
 
 Bosley v. Shanner, 243 
 
 Boston V. Benson, 639 
 
 Boston Bank v. Chamberlin, 272 
 
 Boston Iron Co. v. Hale, 379 
 
 Bostwick u.. Leach, 534 
 
 Bosworth V. Sturtevant, 594 
 
 Bouchell V. Clary, 266 
 
 Boults V. Mitchell, 675 
 
 Boutelle v. Melendy, 140 
 
 Boutwell 0. O'Keefe, 662 
 
 Bowden v. Bowden, 713 
 
 Bower v. Blessing, 178 
 
 Bower v. Cooper, 587 
 
 Bowers v. Briggs, 639 
 
 Bowker v. Childs, 416 
 
 Bowker v. Lowell, 26, 243 
 
 Bowlby V. Eell, 550 
 
 Bowman v. Cicil Bank, 392 
 
 Bowman v. Coffrqth, 492 
 Bowman v. Conn, 498, 534 
 
 Bowman v. Tallman, 516 
 
 Bowry v. Bennet, 496 
 
 Bowser v. Bliss, 479 
 
 Boyce v. Grundy, 212 
 
 Boyce v. Smith, 285 
 
 Boyd V. Ellis, 731 
 
 Boyd V. Hawkins, 251 
 
 Boyd V. Hitchcock, 415 
 Boyd V. Whitfield, , 19, 96 
 
 Boykin v. McLauchlin, 375 
 
 Boyle V. Agawam Canal, 616 
 
 Boyle V. Guysiger, 690 
 
 Boyle V. Parker, 68 
 
 Brachan v. Griffin, 410 
 
 Brackett v. Evans, 535 
 
INDEX TO CASES CITED, 
 
 Section 
 
 Brackett v. Hoyt, 458 
 
 Brackney v. Shreve, 361 
 
 Bradford v. Jenkins, 463 
 
 Bradford v. Pitts, 594 
 
 Bradford i>. "Williams, 688 
 
 Bradley v. Blodget, 535 
 
 Bradley v. Marshall, 59 
 Bradley v. Kea (14 Allen, 20), 484 
 Bradley v. Kea (103 Mass. 188), 484 
 
 Bradshaw v. Branan, 683 
 
 Brady v. Todd, 378 
 
 Bragg V. Pessenden, 707 
 
 Braitch v. Guelioh, 471 
 
 Braman v. Bingham, 765 
 
 Branch v. Burnley, 570 
 
 Brandies v. Neustadtl, 505 
 Brandon Manuf. Co. v. Morse, 167 
 
 Branham v. San Jos^, 144 
 
 Brashier v. Gratz, 505, 752 
 
 Bray v. G-unn, 708, 711 
 
 Bray v. Kettell, ' 357 
 
 Breck v. Blanchard, 242 
 
 Breckenridge v. Ormsby, 296 
 
 Bremer v. Harvy, 484 
 
 Breslin v. Brown, 481 
 
 Brett i>. Ming, 700 
 
 Brewer v. Bessinger, 413 
 
 Brewer v. Brewer, 505 
 
 Brewer v. Dyer, 119 
 
 Brewer v. Franklin Mills, 563 
 
 Brewer v. Tysor, 698 
 
 Brewster v. Hobart, 850 
 
 Brewster v. Silence, 524 
 
 Brice v. Wilson, 256 
 Brick Presbyterian Church d. Ne w 
 
 York, 628 
 Briggs V. Ewart, 195 
 Briggs V. Glenn, 644 
 Briggs V. Partridge, 359 
 Briggs V. Sizer, 428 
 Briggs v. Vermont Central Kail- 
 road, 58, 643 
 Brigham v. Bveleth, 94 
 Brigham v. Peters, 711 
 Bright V. Kowland, 753 
 Brinekerhoff v. "Wemple, 94 
 
 Section 
 
 Brinley v. Mann, 858 
 
 Brinley v. Tibbetts, 678 
 
 Brisbane v. Adams, 481 
 
 Bristow V. Sequeville, 728 
 British Linen Co. v. Drummond, 748 
 
 Britt V. Hays, 683 
 
 Britton v. Angier, 512, 522 
 
 Britton v. Turner, 681 
 
 Briziok v. Manners, 210, 505 
 
 Broadhead v. Noyes, 781, 737 
 
 Broadwell v. Getman, 537 
 
 Brookett v. Hammond, 90 
 
 Brodie v. Barry, 733 
 
 Bromley v. Holland, 339 
 
 Bronson v. Chappell, 707 
 
 Bronson v. Stroud, 519 
 
 Brook V. Hook, 710 
 Brooklyn Life Ins. Co. v. Bledsoe, 581 
 
 Brooks V. Marbury, 763 
 
 Brooks V. Minturn, 360 
 
 Brooks V. Wheelock, 58 
 
 Brooks V. White, 415 
 
 Brookshire v. Brookshire, 388 
 
 Brookshire v. Voncannon, 388 
 
 Broughton v. Puller, 644 
 
 Broughton v. West, 639 
 
 Brousseau v. Hudson, 612 
 
 Brown v. Beauchamp, 477 
 Brown ■•». Brine, 37, 418, 420 
 Brown v. Brown (108 Mass. 386), 289 
 
 Brown v. Brown (47 Misso. 180), 522 
 
 Brown v. Dillahunty, 619, 628 
 
 Brown v. Dwelley, 112 
 
 Brown v. Fitch, 688 
 
 Brown v. Preeland, 731 
 
 Brown v. Gammon, 697 
 
 Brown v. Hazen, 621 
 
 Brown v. Johnson, 749 
 
 Brown v. Mahurin, 630 
 
 Brown v. Maulsby, 753 
 
 Brown v. North, 213 
 
 Brown, People v. 313 
 
 Brown v. Perry, 90 
 
 Brown v. Keynolds, 765 
 
 Brown v. Rice, 178 
 
 Brown v. Strait, 522 
 339 
 
INDEX TO CASES CITED. 
 
 
 Section 
 
 Brown v. Tucker, 
 
 128 
 
 Brown v. Wheeler, 
 
 136 
 
 Brown v. "Witter, 
 
 679 
 
 Browne v. Burton, 
 
 19 
 
 Brownell v. Winne, 
 
 639 
 
 Browning v. Beston, 
 
 600 
 
 Browning v. Owen, 
 
 383 
 
 Browning v. Wright, 
 
 675, 593, 600 
 
 Broyles v. Lowrey, 
 
 547 
 
 Bruce v. Davenport, 
 
 204 
 
 Bruce v. Hastings, 
 
 534 
 
 Bruce v. Pearson, 
 
 178 
 
 Bruce v. Warwick, 
 
 275 
 
 Bruen v. Marquand, 
 
 401 
 
 Bruner v. Wheaton; 
 
 179 
 
 Brush V. Carpenter, 
 
 523 
 
 Brusle v. Thomas, 
 
 183 
 
 Bruton v. Wooten, 
 
 413 
 
 Bryan v. Foy, 
 
 412 
 
 Bryan v. Reynolds, 
 
 492 
 
 Bryan v. Eobert, 
 
 707 
 
 Bryan v. Spurgin, 
 
 625 
 
 Bryan v. Walton, 
 
 272 
 
 Bryant v. Boothe, 
 
 219 
 
 Bryant v. Booze, 
 
 486 
 
 Bryant v. Hendricks, 
 
 534 
 
 Bryant v. Hunter, 
 
 63 
 
 Bryant v. Pottinger, 
 
 267 
 
 Bryant v. Wilcox, 
 
 • 655 
 
 Byassee v. Eeese, 
 
 533 
 
 Byerlee v. Mendel, 
 
 681 
 
 Byers v. Bostwick, 
 
 680 
 
 Byers v. Daugherty, 
 
 192 
 
 Byers v. McClanahan, 
 
 370, 374 
 
 Byrd v. Betrand, 
 
 36 
 
 Byrd v. Boyd, 
 
 683 
 
 Byrd v. Pox, 
 
 428 
 
 Byrd v. Odem, 
 
 477 
 
 Byrne v. Cummings, 
 
 427 
 
 Byrne v. Schwing, 
 
 851 
 
 Buchanan v. International Bank, 420 
 
 Buchanan v. Monroe, 842 
 
 Buck V. Pickwell, 534 
 
 Buck V. Watkins, 679 
 
 Buckingham v. Hanna, 134 
 
 Buckley ». Briggs, 316 
 340 
 
 Section 
 Buckmasteru. Consumers' Ice Co., 581 
 Bucknam v. Nash, 552 
 Buckner v. Smith, 276 
 Buell V. Buckingham, 310 
 Buffington v. Gerrish, 221 
 Buford V. Caldwell, 217 
 Bulkeley v. Wilford, 581, 595 
 Bulkley v. Derby Fishing Co., 314 
 Bulkley v. Landon, 441 
 Bull V. Harris, 393 
 Bull V. McCrea, 540 
 Bullion V. Campbell, 564 
 Bullock V. Caird, 740 
 Bunge V. Koop, 412, 692 
 Bunn V. Guy, 479 
 Bunn V. Winthrop, 27 
 Burge V. Cedar Bapids, etc., Kail- 
 road, , 679 
 Burgen v. Straughan, 476, 495 
 Burk V. Webb, 411 
 Burke v. Allen, 292, 296 
 Burke v. Wells, 698 
 Burkholder v. Plank, 28, 24 
 Burleigh v. White, 712 
 Burley v. Eussell, 278 
 Burnham v. Ayer, 639 
 Burnham v. Holt, 362 
 Burnet v. Bisco, 429 
 Burnett v. Blackmar, 505 
 Burney v. Ball, 537 
 Bums V. Allen, 651 
 Burns B.^Hill, 267 
 Burns v. Lynde, 370 
 Burr V. Burton, 243 
 Burr V. McDonald, 307 
 Burr V. Veeder, 145 
 Burrill v. Nahant Bank, 329 
 Burrill u. Saunders, 65, 657 
 Burrows v. Jemino, 736 
 Burroughs v. Lowder, 584 
 Burroughs v. Bichman, 303 
 Burrows v. Alter, 214 
 Burson v. Huntington, 172 
 Burt«. Cassety, 763 
 Burt V. Dutcher, 435 
 Burt V. Place, 140, 477 
 
INDEX TO CASES CITED. 
 
 
 Section 
 
 Burtis V. Thompson, 
 
 693 
 
 Burton v. Blin, 
 
 572 
 
 Bush V. Holmes, 
 
 554 
 
 Bush V. Watkins, 
 
 400 
 
 Bushel V. Pasmore, 
 
 766 
 
 Butler's Appeal, 
 
 219 
 
 Butler V. Breck, 
 
 117 
 
 Butler V. Burleson, 
 
 479 
 
 Butler V. Cams, 
 
 195 
 
 Butler V. Lee, 
 
 484 
 
 Butler V. Price, 
 
 332 
 
 Butler V. Scofield, 
 
 435 
 
 Butler V. Smith, 
 
 171 
 
 Butler V. "Widger, 
 
 694 
 
 Butterfield v. Beall, 
 
 327 
 
 Butters v. Haughwout, 
 
 200 
 
 Butterworth v. Volkening, 
 
 572 
 
 Buttrick v. Holden, 
 
 749 
 
 Butts V. Huntley, 
 
 680 
 
 Buzzell V. Bennett, 
 
 272 
 
 Cabell V. Vaughan, 
 
 14 
 
 Cabot V. Haskins, 
 
 425 
 
 Cabre v. Sturges, 
 
 357 
 
 Cadwallader v. West, 
 
 225 
 
 Cadwell v. Meek, 
 
 572 
 
 Cady V. Sheperd, 
 
 399 
 
 Cahill V. Bigelow, 
 
 506, 520 
 
 Cahill V. Patterson, 
 
 681 
 
 Cain V. Heard, 
 
 327 
 
 Cain V. McGuire, 
 
 533 
 
 Cain V. Warford, 
 
 225 
 
 Cairnes v. Knight, 
 
 758 
 
 Calahan v. Babcock, 
 
 661 
 
 Calder v. Dobell, 
 
 321 
 
 Caldwell v. Layton, 
 
 578 
 
 Caldwell v. May, 
 
 288 
 
 Calhoun v. Atchison, 
 
 176 
 
 Calhoun v. Calhoun, 
 
 647 
 
 California Steam Nav. Co 
 
 V, 
 
 Wright (6 Cal. 258), 
 
 419 
 
 California Steam Nav. Co 
 
 V, 
 
 Wright (8 Cal. 585), 
 
 679 
 
 Call, People v. 
 
 643 
 
 Callagan v. Hallett, 
 
 493 
 
 Callaghan v. Callaghan, 
 
 409 
 
 
 Section 
 
 Calloway v. Hamby, 
 
 617 
 
 Calloway v. Witherspoon, 
 
 226 
 
 Calumbet v. Pacheco, 
 
 130 
 
 Camden v. Mulord, 
 
 94 
 
 Came v. Brigham, 
 
 311 
 
 Cameron v. Boyle, 
 
 758 
 
 Cameron v. McFarland, 
 
 473 
 
 Camfrancq v. Pilie, 
 
 75 
 
 Camp's Appeal, 
 
 434 
 
 Camp V. Barker, 
 
 695 
 
 Camp V. Camp, 
 
 212 
 
 Campbell v. Hillman, 
 
 223 
 
 Campbell v. Johnston, 
 
 261 
 
 Campbell v. Mayes, 
 
 131 
 
 Campbell v. Medbury, 
 
 426 
 
 Campbell v. Pope, 
 
 758 
 
 Canada v. Canada, 
 
 680 
 
 Canal Bridge v. Gordon, 
 
 316 
 
 Canfield v. Ives^ 
 
 762 
 
 Cannan v. Bryce, 
 
 468 
 
 Cannon v. Alsbury, 
 
 272 
 
 Cannon v. Cannon, 
 
 18 
 
 Cantey v. Duren, 
 
 14 
 
 Caple V. McCoUum, 
 
 112 
 
 Capp V. Lancaster, 
 
 700 
 
 Cardell v. Bridge, 
 
 681 
 
 Carey v. Dennis, 
 
 763 
 
 Carleton v. Whitcher, 
 
 458 
 
 Carlisle v. Chambers, 
 
 730 
 
 Carman v. Smick, 
 
 552 
 
 Carmichael v. Greer, 
 
 396 
 
 Carneal v. Day, 
 
 724 
 
 Carnegie v. Morrison, 
 
 720, 731 
 
 Carothers v. Wheeler, 
 
 701 
 
 Carpenter v. Beer, 
 
 24, 458 
 
 Carpenter v. Holcomb, 
 
 688 
 
 Carpenter v. Lockhart, 
 
 754 
 
 Carr v. Duval, 
 
 179 
 
 Carr v. Holliday, 285 
 
 293, 294 
 
 Carr v. London, etc.. Railway, 127 
 Carrell v. Collins, 695 
 Carrington v. Brents, 722 
 Carroll «. Manchester, etc.. Kail- 
 road, 127 
 Carroll v. Welch, 681 
 Carroway v. Anderson, 534 
 
 341 
 
INDEX TO CASES CITED. 
 
 
 Section 
 
 Carson v. Clark, 
 
 
 443 
 
 Carter v. Carter, 
 
 
 669 
 
 Carter v. Chaudron, 
 
 
 353 
 
 Carter v. Corley, 
 
 
 753 
 
 Carter v. Jarvis, 
 
 
 547 
 
 Carter v. McClintock, 
 
 
 760 
 
 Carter v. Thorn, 
 
 
 759 
 
 Carter v. Turner, 
 
 
 766 
 
 Cartright v. Clopton, 
 
 
 645 
 
 Cary v. White, 
 
 
 421 
 
 Casey v. Allen, 
 
 
 216 
 
 Casey v. Holmes, 
 
 
 577 
 
 Casey v. Pennoyer, 
 
 
 598 
 
 Cassady v. Clarke, 613 
 
 615 
 
 622 
 
 Cassidy v. Le Pevre, 
 
 
 660 
 
 Caster v. Davies, 
 
 
 547 
 
 Castleman v. Griffin, 
 
 
 215 
 
 Gates V. Woodson, 
 
 296 
 
 297 
 
 Catesby's Case, 
 
 
 748 
 
 Catlin V. Gilders, 
 
 
 393 
 
 Catlin V. Henton, 
 
 
 474 
 
 Caton V. Caton, 
 
 
 505 
 
 Cauble v. Eyman, 
 
 68 
 
 77 
 
 Caulkins v. Pry, 
 
 301 
 
 ,304 
 
 Central Bank v. Copeland, 
 
 
 224 
 
 Chadsey v. Lewis, 
 
 
 564 
 
 Chadwick v. Eastman, 
 
 
 639 
 
 Chadwick v. Knox, 
 
 
 492 
 
 ChaflFee v. Thomas, 
 
 
 521 
 
 Chamber of Commerce v. SoUitt, 677 
 
 Chamberlain v. Bagley, 754 
 
 Chamberlin v. Donahue, 68 
 
 Chamberlin v. Eobertson, 554 
 
 Chamberlin v. Scott, 680 
 
 Chambers v. Harger, 699 
 
 Chambers v. Eubey, 447 
 
 Chambers v. Winn, G99 
 
 Chambliss v. Smith, 534 
 
 Champlin v. Parish, 511 
 
 Champneys v. Johnson, 97 
 
 Chancellor v. Wiggins, 96 
 
 Chandler v. Johnson, 471 
 
 Chandler v. McKinney, ^273 
 
 Chandler v. Simmons, 267 
 
 Chandler v. State, 90 
 
 Chandler v. Windship, 699 
 
 342 
 
 Section 
 Chapin v. Lapham, 523 
 Chapin v. Merrill, 623 
 Chapman v. Brooklyn, 426 
 Chapman v. Chapman, 272 
 Chapman v. Devereux, 572 
 Chapman v. McGrew, 33 
 Chapman v. Eose, 169 
 Chapman v. Shaw, 669 
 Chappell V. Brockway, 478 
 Charles v. Scott, 31 
 Chase v. Allen, 764 
 Chase v. Barrett, 627 
 Chase v. Corcoran, 88 
 Chase v. Dwinal, 247 
 Chase v. Palmer, 22 
 Chasemore v. Turner, 447 
 Chastain v. Smith, 112 
 Chenery v. Goodrich, 572 
 Cheney v. Cook, 180 
 Cherry v. Smith, 180 
 Chesapeake, etc.. Canal v. Balti- 
 more, etc., Eailroad, 592 
 Chesapeake and Ohio Canal v. 
 
 Knapp, 315 
 
 Chessman v. Whittemore, . 640 
 Chestnut v. Harbaugh, 483, 487 
 
 Chewning v. Johnson, 723 
 
 Chicago V. Sheldon, 598 
 
 Chicago Dock Co. v. Kinzie, 506 
 Chicago and Great Eastern Eail- 
 
 way V. Dane, 182 
 Chicago, etc.. Railroad v. Sawyer, 612 
 Chicago, etc., Eailway v. Van 
 
 Dresar, 667 
 
 Child V. Brace, 251 
 
 Child, United States v. 246 
 
 Children of Israel v. Peres, 688 
 
 Chilton V. People, 16 
 
 Chiniquy v. People, 655 
 
 Chouteau v. Jones, 200 
 
 Chouteau v. Paul, 357 
 
 Chouteaux v. Leech, 383 
 
 Church V. Sterling, 562 
 
 Church, etc.. See. v. Hatch, 681 
 
 Churchill v. Perkins, 469 
 
 Churchill v. Beamer, 679 
 
INDEX TO CASES CITED. 
 
 Cilley, State v. 
 Cincinnati, etc., Railroad u. 
 
 son, 
 City of Korwich, The 
 Claflin V. Carpenter, 
 Clancy v. Craine, 
 Clancy v. Overman, 
 Clark V. Crosby, 
 Clark V. &aylord, 
 Clark V. Goddard, 
 Clark V. Jones, 
 - Clark D. King, 
 Clark V. Lillie, 
 Clark V. Miller, 
 plark V. Pease, 
 Clark '0. Pendleton, 
 Clark V. Pinney, 
 Clark V. Powers, 
 Clark V. School District in ] 
 Clark V. Small, 
 Clark V. Smith, 
 Clark V. Thayer, 
 Clarke v. Lyon, 
 Clarke v. McFarland, 
 Clarke v. Meigs, 
 Clarke, State v. 
 Clarkson v. Carter, 
 Clarkson v. Creely, 
 Clarkson v. Hanway, 
 Clayland v. Pearce, 
 Clayton v. Blake, 
 Clayton v. Bussey, 
 Cleaton v. Chambliss, 
 Clement v. Brush, 
 Clement v. Gunhouse, 
 Clements v. Moore, 
 Clendennen v. Paulsel, 
 Clerk V. Clerk, 
 Cleveland v. Martin, 
 Cleveland v. Williams, 
 Cleveland, etc.. Railroad 
 
 kins, 
 Clifton V. Litchfield, 
 Clippinger v. Hepbaugh, 
 Clopton V. Bolton, 
 Clopton V. Booker, 
 
 Section 
 
 
 Section 
 
 639 
 
 Cloud V. Ivie, 
 
 112 
 
 . Clark- 
 
 Clough V. Davis, 
 
 486 
 
 308, 312 
 
 Clough V. Goggins, 
 
 483 
 
 597 
 
 Clough V. London and Northwest- 
 
 533 
 
 ern Railway, 199, 
 
 203, 204 
 
 148 
 
 Clough V. Patrick, 
 
 425 
 
 615 
 
 Clow V. Borst, 
 
 706 
 
 479 
 
 Coates V. Hewit, 
 
 756 
 
 422 
 
 Cobb V. Hall, 
 
 697 
 
 265 
 
 Cobb V. Harmon, 
 
 626 
 
 656 
 
 Cobb V. Hatfield, 
 
 206 
 
 669 
 
 Cobb V. Reed, 
 
 699 
 
 576 
 
 Cock V. Oakley, 
 
 68 
 
 395 
 
 Cocking V. Ward, 
 
 147 
 
 240 
 
 Cockrell v. Warner, 
 
 547 
 
 529 
 
 Coddington «. Goddard, 
 
 166 
 
 568 
 
 Coddington v. Paleologo, 
 
 675 
 
 581 
 
 Codman v. Johnson, 
 
 576 
 
 Pawlet, 681 
 
 Coffin V. Landis, 
 
 338 
 
 647 
 
 Coggburn v. Simpson, 
 
 361 
 
 532 
 
 Coggeshall v. Coggeshall, 
 
 65, 405 
 
 201 
 
 Coggs V. Bernard, 
 
 422 
 
 708 
 
 Coil V. Wallace, 
 
 698 
 
 495 
 
 Colburn v. Phillips, 
 
 361 
 
 711 
 
 Colburn v. ToUes, 
 
 524 
 
 261 
 
 Colburn v. Woodworth, 
 
 683 
 
 395 
 
 Colook V. Louisville Railroad, 647 
 
 .421 
 
 Coldon V. Walsh, 
 
 251 
 
 409 
 
 Cole 0. Northwestern Bank, 
 
 297, 320 
 
 498 
 
 Cole V. Potts, 
 
 505 
 
 681 
 
 Coleman v. Byre, 49 
 
 420, 428 
 
 236 
 
 Coleman v. Prazer, 
 
 285 
 
 653 
 
 Coleman v. Prum, 
 
 496 
 
 399 
 
 Coleman v. Grubb, 
 
 598 
 
 16 
 
 Coleman v. Satterfield, 
 
 200 
 
 693 
 
 Coleman v. Stark, 
 
 709 
 
 696 
 
 Coles V. Pilkington, 
 
 505 
 
 291 
 
 Coles V. Trecothick, , 
 
 330, 667 
 
 51 
 
 Collen V. Wright, 
 
 100 
 
 341 
 
 Collier v. Jacoby, 
 
 640 
 
 u. Per- 
 
 Collier v. Mahan, 
 
 65 
 
 605 
 
 Collins V. Baumgardner, 
 
 647 
 
 647 
 
 Collins ■!>. Blantern, 
 
 25 
 
 492 
 
 Collins V. Buckeye Ins. Co., 
 
 357 
 
 589 
 
 Collins V. Heaths, 
 
 200 
 
 733 
 
 Collins V. Lavelle, 
 
 575, 577 
 
 343 
 
INDEX TO CASES CITED. 
 
 Section 
 Collins V. Suau, 707 
 
 Collins V. Westbury, 247 
 
 Collins Iron Co. v. Burkam, 719 
 
 Colt V. Koot, 622 
 
 Columbia Bank v. Fitzhugh, 570, 572 
 Columbia Bank v. Hagner, 700 
 
 Colvin V. Williams, 321, 550 
 
 Colyar v. Taylor, 22 
 
 Combes's Case, 353 
 
 Commercial Bank v. King, 721 
 
 Commercial Bank v. Norton, 850 
 
 Commercial Bank v. Eeed, 143 
 
 Commercial, etc., Bank o. Jo^es, 707 
 Commercial SteamsMp Co. v. 
 
 Boulton, 749 
 
 Commins v. Scott, 513 
 
 CommonwealtiiBankw.McChord, 369, 
 
 372 
 Compton V. Martin, 546 
 
 Comstock V. Breed, 521 
 
 Comstock V. Purple_, 409 
 
 Comstock V. Smith, 442, 443 
 
 Comstock V. Ward, 637 
 
 Conant v. Jackson, 227, 285, 291 
 
 Oongdon v. Perry, 148 
 
 Congregational Society v. Perry, 428 
 Conkey v. Hopkins, 523 
 
 Connelly v. Devoe, 647, 663 
 
 Connelly v. Skelly, 671 
 
 Conner v. Henderson, 203, 679 
 
 Connerat v. Goldsmith, 519 
 
 Connihan v. Thompson, 127 
 
 Connor v. Williams, 547 
 
 Conover v. Stillwell, 420 
 
 Conrad v. Callery, 127 
 
 Conrey v. Brandegee, 338 
 
 Continental Bank ■«. Common- 
 wealth Bank, 127 
 Converse v. Converse, 288 
 Converse v. United States, 493 
 Conyers v. McGrath, 357 
 Cooch V. Goodman, 17, 23 
 Cook V. Boston, 143 
 Cook V. Bradley, 445 
 Cook V. Brown, 762 
 Cook V. Duvall, 421 
 344 
 
 
 Section 
 
 Cook«. Elliott, 
 
 524 
 
 Cook V. Gilman, 
 
 204 
 
 Cook V. Kennerly, 
 
 112 
 
 Cook V. Moore, 
 
 203 
 
 Cook, People v. 
 
 215 
 
 Cook V. Phillips, 
 
 458 
 
 Cook V. Renick, 
 
 570 
 
 Cook V. Shipman, 
 
 492 
 
 Cook V. Stearns, 
 
 534 
 
 Cook V. Toumbs, 
 
 272 
 
 Cooke V. Oxley, 
 
 174, 180 
 
 Cooley V. Warren, 
 
 580 
 
 Coon V. Atwell, 
 
 209 
 
 Coon V. Brickett, 
 
 656 
 
 Cooper V. Kane, 
 
 572 
 
 Cooper V. Mowry, 
 
 690 
 
 Cooper V. Newman, 
 
 200 
 
 Cooper V. Phibbs, 
 
 235 
 
 Cooper V. Kankin, 
 
 327 
 
 Cope V. Rowlands, 
 
 458 
 
 Copeland v. Mercantile Ins. 
 
 Co., 337 
 
 Copeland v. Wading River Reser- 
 
 voir, 
 
 52, 534 
 
 Copis V. Middleton, 
 
 78 
 
 Copper Hill Mining Co. v. 
 
 Spen- 
 
 cer. 
 
 534 
 
 Coquillard v. Bearss, 
 
 477 
 
 Corbett v. Cochran, 
 
 521, 524 
 
 Corbin v. Healy, 
 
 579 
 
 Corbitt V. Stonemetz, 
 
 663, 699 
 
 Corby v. Weddle, 
 
 195 
 
 Cork V. Baker, 
 
 529 
 
 Corley v. Williams, 
 
 473 
 
 Cornellison v. Comellison, 
 
 506 
 
 Corning, u. Colt, 
 
 178 
 
 Corser v. Paul, 
 
 711 
 
 Costar V. Brush, 
 
 479 
 
 Costigan -u. Hawkins, 
 
 96 
 
 Costigan v. Mohawk, etc 
 
 , Rail- 
 
 road, 
 
 683 
 
 Cothay v. Pennell, 
 
 359, 395 
 
 Cotheal v. Talmage, 
 
 753 
 
 Gotten V. Williams, 
 
 563, 653 
 
 Cottom V. HoUiday, 
 
 333 
 
 Cotton V. Reavill, 
 
 700 
 
 Coughlin V. Knowles, 
 
 604 
 
INDEX TO CASES CITED. 
 
 
 Section 
 
 Oox V. Adams, 
 
 688 
 
 Cox V. Rogers, 
 
 133 
 
 Cox V. United States, 
 
 731 
 
 Coxe V. Devine, 
 
 359 
 
 Ooxe V. Sartwell, 
 
 27 
 
 Coyle V. Davis, 
 
 505 
 
 Cozzins V. Whitaker, 
 
 96 
 
 Crabtree v. Messersmith, 
 
 692 
 
 Craft V. State Bank, 
 
 602, 747 
 
 Craig V. "Wells, 
 
 577 
 
 Craighead v. Wells, 
 
 265 
 
 Cram v. Mitchell, 
 
 251 
 
 Crane v. Gough, 
 
 51, 506 
 
 Crans v. Hunter, 
 
 .710 
 
 Crawford v. Barkley, 
 
 709 
 
 Crawford v. Cato, 
 
 247 
 
 Crawford v. Hamilton, 
 
 619, 625 
 
 Crawford v. Millspaugh, 
 
 412 
 
 Crawford v. Wilson, 
 
 97 
 
 Creekmore v. Chitwood, 
 
 482 
 
 Crisdee v. Bolton, 
 
 753 
 
 Crisp V. Churchill, 
 
 496 
 
 Crittenden v. French, 
 
 583 
 
 Crist V. Armoury 
 
 690 
 
 Crocker v. Crocker, 
 
 200 
 
 Crockett v. Thomason, 
 
 644 
 
 Croft V. Bunster, 
 
 27 
 
 Croft V. White, 
 
 637 
 
 Croft V. Wilbar, 
 
 679 
 
 Cromwell v. G-rimsdale, 
 
 19 
 
 Cromwell v. Grumsdale, 
 
 20 
 
 Cromwell v. Grunsden, 
 
 17, 19 
 
 Cromwell v. Tate, 
 
 16 
 
 Cromwell v. Wilkinson, 
 
 675, 750 
 
 Cronise v. Clark, 
 
 273 
 
 Crookshank v. Burrell, 
 
 551 
 
 Crop V. Norton, 
 
 59 
 
 Crosby v. Berger, 
 
 720 
 
 Crosby v. Watkins, 
 
 861 
 
 Crosby v. Wood, 
 
 425, 647 
 
 Cross V. Huntley, 
 
 425 
 
 Cross V. Powell, 
 
 667 
 
 Cross V. State Bank, 
 
 870 
 
 Crossgrove v. Himmelrich, 
 
 680 
 
 Crossley v. Maycock, 
 
 179 
 
 Crouch V. Fowle, 
 
 101 
 
 
 Section 
 
 Grouse v. Holman, 
 
 
 296 
 
 Crowell V. Maughs, 
 
 
 560 
 
 Crowther v. Eowlandton 
 
 
 292 
 
 Crozier v. Carr, 
 
 371 
 
 ,376 
 
 Crum V. Boyd, 
 
 
 357 
 
 Crutwell V. DeEosset, 
 
 
 401 
 
 Crymes v. Day. 
 
 
 263 
 
 Cubberly v. Cubberly, 
 
 
 581 
 
 Cuff B. Penn, 
 
 
 657 
 
 CuUum V. Branch Bank, 
 
 
 213 
 
 Cumming v. Ince, 
 
 
 242 
 
 Cummings v. Coe, 
 
 
 585 
 
 Cummings v. Dennett, 
 
 65, 512 
 
 551 
 
 Cumnlings v. Henry, 
 
 
 800 
 
 Cummings v. Powell, 
 
 
 272 
 
 Cunningham v. Shields, 
 
 
 215 
 
 Currie v. Misa, 
 
 
 420 
 
 Currier v. Howard, 
 
 51, 563 
 
 ,564 
 
 Curry v. Lyles, 
 
 
 65 
 
 Cusack V. White, 
 
 
 494 
 
 Curtis V. Belknap, 
 
 
 895 
 
 Curtis V. Gorman, 
 
 
 763 
 
 Curtis V. Hall, 
 
 
 213 
 
 Curtis V. Leavitt, 
 
 
 141 
 
 Cutler V. Everett, 
 
 
 521 
 
 Cutler V. Smith, 
 
 667 
 
 ,671 
 
 Cutter V. Whittemore, 
 
 
 171 
 
 Cutts V. United States, 
 
 
 636 
 
 Da Costa v. Davis (IB. &P.242), 627 
 Dacosta v. Davis (4 Zab. 319), 725 
 Da Costa v. Jones, 489 
 
 Dakins v. Wagner, 749 
 
 Dakota v. Parker, 247 
 
 Dalamater v. Miller, 690 
 
 Dale V. Humfrey, 865 
 
 Dalton V. Bust, 594 
 
 Damon v. Osbom, 355 
 
 Dana, Commonwealth v. 44 
 
 Dana v. Hancock, 58, 643 
 
 Dana v. King, 697 
 
 Daniel v. Prazer, 557 
 
 Daniel v. Toney, 400 
 
 Daniels v. Hallenbeck, 706 
 
 Dare v. Spencer, 657 
 
 Darnley v. London, etc., Kailway, 658 
 345 
 
INDEX TO CASES CITED. 
 
 
 Section | 
 
 
 SECnOM 
 
 Darst t). Brockway, 
 
 
 426 
 
 Dean v. Emerson, 471, 
 
 478, 479 
 
 Dart V. Lowe, 
 
 
 422 
 
 Dean v. Martin, 
 
 128 
 
 Dartnall v. Howard, 
 
 
 422 
 
 Dean v. Mason, 
 
 97 
 
 Darwin v. Bippey, 
 
 
 644 
 
 Dean, State v. 
 
 639 
 
 Daubenspeck v. Powers, 
 
 
 77 
 
 Dean v. "Woodbridge, 
 
 699 
 
 Dauchy v. Silliman, 
 
 203, 
 
 206 
 
 D'Anjou V. Deagle, 
 
 605 
 
 Davenport v. Gentry, 
 
 
 620 
 
 D'Aquin v. Barbour, 
 
 598 
 
 Davenport v. Mason, 
 
 68 
 
 92, 
 
 Deans v. McLendon, 
 
 418 
 
 Davenport v. Riley, 
 
 
 357 
 
 Dearborn v. Cross, 
 
 37 
 
 Davenport v. Sleight, 
 
 370 
 
 374 
 
 Dearth v. Baker, 
 
 631 
 
 Davidson v. tJooper, 
 
 
 370 
 
 Deason v. Boyd, 
 
 276 
 
 Davidson v. Peticolas, 
 
 
 60 
 
 De Baun v. Atchison, 
 
 382 
 
 Davidson v. Silliman, 
 
 
 128 
 
 De Caters v. Le Ray de Chaumont, 251 
 
 Davis V. Ayres, 
 
 
 683 
 
 Decker, Ex parte 
 
 653 
 
 Davis V. Bronson, 
 
 
 723 
 
 Decker v. Gammon, 
 
 631 
 
 Davis V. Carlisle, 
 
 
 637 
 
 Decker v. Hardin, 
 
 226 
 
 Davis V. Crawford, 
 
 
 689 
 
 Decker v. Schaffer, 
 
 522 
 
 Davis V. Eastman, 
 
 
 554 
 
 Deel V. Berry, 
 
 699 
 
 Davis V. Eppinger, 
 
 
 702 
 
 De Eonclear v. Shottenkirk, 
 
 547 
 
 Davis V. Freeman, 
 
 
 754 
 
 Defraunce v. Brooks, 
 
 687 
 
 Davis V. Garr, 
 
 
 721 
 
 Defreeze v. Trumper, 
 
 96 
 
 Davis V. Judd, 
 
 
 14 
 
 Delacroix v. Bnlkley, 
 
 32 
 
 Davis V. Lane, 
 
 343 
 
 384 
 
 De La Touehe, In re 
 
 236 
 
 Davis V. Mason, 
 
 
 479 
 
 De La Vega v. Vianna, 
 
 731, 739 
 
 Davis V. Moore, 
 
 503, 505 
 
 506 
 
 Delaware Bank v. Smith, 
 
 422 
 
 Davis 1). Morton, 
 
 
 742 
 
 Delaware, etc., Tow-boat Co. v. 
 
 Davis V. Munson, 
 
 
 177 
 
 Starrs, 
 
 596 
 
 Davis V. Eansom, 
 
 
 547 
 
 De Levillain v. Evans, 
 
 263 
 
 Davis V. Shields, 
 
 
 512 
 
 Deming v. Bullitt, 
 
 14, 357 
 
 Davis V. Simpson, 
 
 
 26X 
 
 Demoss v. Noble, 
 
 178 
 
 Davis V. Tibbats, 
 
 
 467 
 
 Denmead v. Glass, 
 
 554 
 
 Davis V. Townsend, 
 
 
 673 
 
 Dennett v. Dennett, 
 
 290 
 
 Davis u. Walker, 
 
 
 534 
 
 Denny v. Gilman, 
 
 217 
 
 Davis V. "West Saratoga 
 
 Building 
 
 Denny v. "Williams, 
 
 554, 722 
 
 Union, 
 
 
 201 
 
 Denson u. Stewart, 
 
 355 
 
 Davis V. "Windsor Savings Bank, 
 
 341 
 
 Denton v. Adams, 
 
 14 
 
 Davison v. Davison, 
 
 
 76 
 
 Denton v. McKenzie, 
 
 214 
 
 Davison v. Seymour, 
 
 
 480 
 
 De Pouilly, Succession of 
 
 434 
 
 Dawes v. Prentice, 
 
 
 594 
 
 Derby v. Phelps, 
 
 538 
 
 Dawson v. Coles, 
 
 
 563 
 
 Dermott v. Jones, 90, 612, 616 
 
 Day V. Caton, 
 
 94, 130 
 
 Derrick v. Kennedy, 
 
 276 
 
 Day V. Cloe, 
 
 
 521 
 
 Derry Bank v. "Webster 
 
 763 
 
 Day V. Lafferty, 
 
 
 399 
 
 Desha v. Robinson, 
 
 204, 679 
 
 Day V. McAllister, 
 
 
 484 
 
 De Sobry v. De Laistre, 
 
 731 
 
 Dayton v. Newman, 
 
 
 762 
 
 De Soto V. Dickson, 
 
 578 
 
 Dean v. Dear, 
 
 
 112 
 
 Detroit v. Jackson, 
 
 358 
 
 346 
 
 
 
 
 
INDEX TO CASES CITED. 
 
 Section 
 Detroit v. Whittemore, 655 
 Detroit, etc., Eailroad v. Forbes, '534 
 Devane v. Koyal, 516 
 Dever v. Corcoran, 463 
 Deverell v. Bolton, 330 
 Devers v. Becknell, 361 
 Devlin v. Brady, 492 
 Devlin v. Second Avenue Bail- 
 road, 695 
 Devinney v, Reynolds, 353 
 De Wolf V. Johnson. 721 
 D'Wolf u. Eabaud, 498 
 Dibol V. Minott, 577 
 Dickens v. Jones, 145 
 Dickenson v. Davis, 218 
 ■ Dickerman v. Lord, 247 
 Dickerson v. Chrisman, 505 
 Dickerson v. Ripley, 37, 421 
 Dickinson v. Conway, 708 
 Dickinson v. Dodds, 174, 180, 181 
 Dickinson v. Hall, 425 
 Dickinson v. Richmond, 486 
 Dietrich v. Koch, 712 
 Dilk V. Keighley, 265 
 Dill V. "Wanham, 680 
 Dillard v. Moore, 219 
 Dillon V. Anderson, 171, 684 
 Dillon V. Brown, 400 
 Dishon v. Schorr, 394 
 Diversey v. Kellogg, 385 
 Dixon V. Dunham, 572 
 Dixon V. Olmstead, 475 
 Dixon V. United States, 684 
 Dobson V. Keys, 20 
 Dodd V. Farlow, 572 
 Dodds V. "Wilson, 85, 225, 285, 291 
 Dodge V. Adams, 453 
 Dodge V. Gardiner, 576 
 Dodge V. Greeley, 675, 676 
 Dodge V. Lambert, 711 
 Dodge V- Lean, 513 
 Dodge V. McDonnell, 882 
 Dodge V. McKay, 400 
 Dodge V. Rogers, 695 
 Dodge V. Van Lear, 626 
 Dodson V. Kayes, 19, 20 
 
 
 Section 
 
 Doe I). Thompson, 
 
 361 
 
 Poeblert;, Waters, 
 
 407 
 
 Dohoney v. Dohoney, 
 
 486 
 
 Don V. Lippman, 
 
 737 
 
 Donaldson v. Kendall, 
 
 399 
 
 Donelson v. Posey, 
 
 302 
 
 Donelson v. Young, 
 
 223 
 
 Doolin V. "Ward, 
 
 481 
 
 Doolittle V. Dininny, 
 
 111 
 
 Doremus v. Howard, 
 
 547 
 
 Dorsey v. Hardesty, 
 
 731 
 
 Dorwin v. Smith, 
 
 623 
 
 Doty V. "Wilson, 
 
 444 
 
 Doughaday v. Crowell, 
 
 711 
 
 Dougherty ^). Whitehead,' 
 
 75 
 
 Douglas V. Oldham, 
 
 738 
 
 Douglass V. Brice, 
 
 112 
 
 Douglass V. Howland, 
 
 23 
 
 Douglass V. Spears, 
 
 512 
 
 Doulson V. Matthews, 
 
 783 
 
 Douville V. Merricli, 
 
 475 
 
 Dow V. Rowell, 
 
 730 
 
 Dow V. Sanborn, 
 
 221 
 
 Dowd V. Tucker, 
 
 222 
 
 Dowdy V. McLellan, 
 
 427, 617 
 
 Downer v. Frizzle, 
 
 698 
 
 Downey v. Burke, 
 
 681 
 
 Downey v. Hinchman, 
 
 428 
 
 Downing v. Freeman, 
 
 120 
 
 Downing v. Ringer, 
 
 458 
 
 Doyle V. Dixon, 
 
 639, 647 
 
 Doyle V. Knapp, 
 
 420 
 
 Draper v. Randolph, 
 
 90 
 
 Draughan v. Bunting, 
 
 523 
 
 Dresel v. Jordan, 
 
 663 
 
 Dresser v. Dresser, 
 
 640 
 
 Dresser v. Wood, 
 
 707 
 
 Drew V. Claggett, 
 
 680 
 
 Drinkwater v. London Assurance 
 
 Co., 600 
 
 Druiffjj. Parker, 236 
 
 Drummond v. Burrell, 542 
 
 Drummond v. Couse, 713 
 
 Drummond v. Hopper, 300 
 
 Drumwright b. Philpot, 376, 899 
 
 Drury v, Defontaine, 483 
 
 347 
 
INDEX TO CASES CITED. 
 
 
 Section 
 
 Duble V. Batts, 
 
 176 
 
 Dubois V. Delaware, etc. 
 
 Canal, 680 
 
 Dudley v. Butler, 
 
 492 
 
 Duflefj). Boykin, 
 
 596 
 
 Duffy V. Shockey, 
 
 479, 754 
 
 Duke M. Asbee, 
 
 491 
 
 Duke V. Harper, 
 
 632 
 
 Dulany v. Green, 
 
 300 
 
 Dumont v. Dufore, 
 
 459 
 
 Dunbar 1). Todd, 
 
 277 
 
 Duncan v. Gibson, 
 
 626 
 
 Duncan v. Helm, 
 
 726 
 
 Duncan v. Hodges, 
 
 372 
 
 Duncan v. Hogue, 
 
 224 
 
 Duncan v. Sanders, 
 
 409 
 
 Dundas v. Bowler, 
 
 730 
 
 Dunham v. Jackson, 
 
 382 
 
 Dunlap V. Berry, 
 
 547 
 
 Dunlap V. Hunting, 
 
 663 
 
 Dunlop V. Gregory, 
 
 479 
 
 Dunn «. Clements, 
 
 639 
 
 Dunn V. Marston, 
 
 699 
 
 Dunn V. Mobile Bank, 
 
 598 
 
 Dunn V. Tharp, 
 
 498 
 
 Dunn V. West, 
 
 523 
 
 Dunning v. Mauzy, 
 
 662 
 
 Dunscomb v. Bunker, 
 
 727 
 
 Dupont V. 'Wertlieman, 
 
 347 
 
 Durst V. Burton, 
 
 387 
 
 Durst 17. Swift, 
 
 564 
 
 Dutch V. Mead, 
 
 167 
 
 Dutton V. "Warschauer, 
 
 377 
 
 Dutton v. Willner, 
 
 251 
 
 Dwight V. Pomeroy, 
 
 58 
 
 Dykers v. Townsend, 
 
 552 
 
 Eades v. Vandeput, 
 
 82 
 
 Eagle "Woolen Mills v. Monteith, 315 
 
 Earl V. Peek, 
 
 409 
 
 Earle v. Bickford, 
 
 680 
 
 Earle v. Oliver, 
 
 447 
 
 Earle v. Reed, 266, 272 
 
 Earnest v. Parke, 448 
 
 East India Co. v. Hensley, 355 
 
 Easter v. "White, 523 
 
 Eastern Eailroad v. Benedict, 358, 360 
 348 
 
 Sectiok 
 Eastwood V. Kenyon, 441, 453, 522 
 Eaton V. Smith, 572, 590 
 
 Eaton V. "Winnie, 127 
 
 Echols V. Cheney, 353 
 
 Echols V. Dodd, 388 
 
 Eckhart v. Eeidel, 353 
 
 Eddy V. Capron, 491 
 
 Eddy V. Graves, 651 
 
 Eddy V, Herrin, 242 
 
 Eddy V. Eoberts, 519 
 
 Edgoombe v. Rodd, 706 
 
 Edgerly v. Shaw, 276 
 
 Edgerton v. Wolf, 272, 278 
 
 Edgeware Highway v. Harrow 
 
 Gas Co., 420 
 
 Edwards v. Grand Trunk Railway, 551 • 
 Egerton v. Mathews, 512 , 
 
 Eggleston v. Buck, 90, 758 
 
 Ehle V. Judson, 155, 425, 453 
 
 Eichelberger v. McCauley, 651 
 
 Elbinger Actien-Gesellschaft v. 
 
 Claye, 367 
 
 Elder v. Allison, 223 
 
 Elder v. Hood, 90 
 
 Eldridge w. Holway, 360 
 
 Eldridge v. See Tup Co., 580 
 
 Eliason v. Henshaw, 179 
 
 Eliza, The 619 
 
 Elkins V. Boston, etc.. Railroad, 360, 
 
 605 
 Elkins V. Parkhurst, 458 
 
 EUery v. Cunningham, 425 
 
 Ellicott V. Peterson, ' 537 
 
 EUinger v. Crowl, 211 
 
 Ellington v. King, 669 
 
 Elliott «. Minto, 733 
 
 Elliott V. Norfolk, 612 
 
 Elliott V. Swartwout, ' 144 
 
 Ellis V. Deadman, 513 
 
 Ellis V. McHenry, 736 
 
 Ellis V. Paige, 632 
 
 Ellis V. Secor, 484 
 
 EUmaker v. EUmaker, 690 
 
 Elsee V. Gatward, 422 
 
 Elston V. Chicago, 145 
 
 Ellsworth V. Mitchell, 458 
 
INDEX TO CASES CITED. 
 
 
 Section 
 
 Elting V. Vanderlyn, 
 
 524 
 
 Elwell V. Chamberlin, 
 
 355, 889 
 
 Elwell V. Shaw, 
 
 353 
 
 Ely V. Hair, 
 
 399 
 
 Ely V. Harvey, 
 
 318 
 
 Ely V. Stewart, 
 
 215 
 
 Ely V. "Wolcott, 
 
 66 
 
 Emerson v. Brigham, 
 
 97 
 
 Emerson v. Miller, 
 
 324 
 
 Emerson v. Providence Hat Manf. 
 
 Co., 330, 350 
 Emerson v. White, 580 
 Emerson v. "Wiley, 102 
 Emery v. Chase, 65 
 Emery v. Powler, 594 
 Emery v. Kempton, 466 
 Emery v. Smith, 541 
 Emmerson v. Heelis, 330, 334 
 Emmons v. Littlefield, 65 
 Emmons v. Murray, 276 
 England v. Davidson, 177 
 Engleman v. State, 747 
 English V. McNair, 591 
 Enthoven v. Hoyle, 653 
 Erickson v. Compton, 360 
 Erie Kallway v. Union Locomo- 
 tive, etc., Co., 627 
 Esmay v. Gorton, ^ 178 
 Espy V. Jones, 529 
 Estes V. Tower, 702 
 Esty V. Aldrich, 537 
 Evans v. Anderson, 719 
 Evans v. Bell, 477 
 Evans v. Blood, 291 
 Evans v. Pegely, 589 
 Evans v. Foreman, 206 
 Evans ». Kittrell, 719 
 Evans v. Trenton, 411, 493 
 Evans v. "Wells, 401 
 Evants v. Strode, 236 
 Ewing V. Burnet, 691 
 Bwins V. Gordon, 430 
 Exall V. Partridge, 445 
 Exton V. Scott, 762 
 Exum V. Brister, 886 
 
 Section 
 
 Eackler v. Eord, 471 
 
 Pairbrother v. Prattent, 334 
 
 Eairlie v. Eenton, v 321 
 Pairmount, etc.. Passenger Eail- 
 
 way V. Stutler, 266 
 Pake V. Smith, 98 
 Palley v. Giles, 600 
 Pallowes V. Taylor, 23 
 Pant V. Cathcart, 272 
 Parley v. Thompson, 33 
 Parmers, etc., o. Plint, 448 
 Parmers' Loan, etc., Co. v. Com- 
 mercial Bank, 576 
 Parmers' Mutual Lis. Co. v. Tay- 
 lor, 384 
 Parmington Academy v. Allen, 75 
 Parnam v. Brooks, 285, 290 
 Parnum v. Powle, 701 
 Parrar v. Barton, 458 
 Parrar v. Bridges, 222, 762 
 Parrar v. Patton, 505 
 Parrar v. Eowly, 598 
 Parrelly v. Ladd, 516 
 Parrer v. Christy, 759 
 Parrington v. Barr, 112 
 Parrow v. Wilson, 620 
 Parwell v. Rogers, 749 
 Pash V. Boss, 857 
 Pawcett V. Osborn, 96 
 Fawcetts v. Kimmey, 671 
 Faxon v. Durant, 434 
 Faxon v. Mansfield, 681 
 Fay V. Oatley, 242 
 Pay V. Richards, 427 
 Fay V. Richardson, 760 
 Fay V. Smith, 644 
 Peay v. Decamp, 680 
 Fellows V. Oneida, 388 
 Fellows V. Stevens, 415 
 Fenton v. Ham, 480 
 Penton v. HoUoway, 800 
 Penwick v. Grimes, 220 
 Fenwick v. Phillips, 416 
 Ferguson v. Bell, 272 
 Ferris v. Adams, 491 
 
 349 
 
INDEX TO CASES CITED. 
 
 Section 
 
 Fessenden v. Mussey, 123 
 
 Fetrow v. Wiseman, 270 
 
 Pichthorn v. Boyer, 399 
 
 Field V. Huston, 593 
 
 Field V. Runk, 554 
 Finch V. Pinch, 527, 534, 564 
 
 Pindley v. Findley, 590 
 
 Pine V. Rogers, 668 
 
 Finn v. Donahue, 484, 487 
 
 Finney v. Apgar, 551 
 First Baptist Church v. Brooklyn 
 
 Fire Ins. Co., 50, 537 
 
 First National Bank v. Church, 421 
 First National Bank u. Crittenden, 449 
 
 First National Bank v. Sturgis, 425 
 
 First Parish in Sutton v. Cole, 310 
 
 Pish V. Roseberry, 97 
 
 Fisher v. Fields; 534 
 
 Fisher v. Mowbray; 271 
 
 Fisher v. Otis, 731 
 
 Fisher v. Probart, 212 
 
 Fisher v. Saylor, 206 
 
 Fisher v. Smith, 657 
 
 Fisher v. Wilson, 204 
 
 Fiske V. Holmes, ' 707 
 
 Fitch V. Casey, 680 
 
 Fitch V. Sutton, 412 
 
 Pits V. Brown, 238 
 
 Fitzgerald v. Alexander, 448 
 
 Fitzgerald v. Reed, 292 
 
 Fitzhugh V. Dennington, 261 
 
 Fitzpatrick v. Cottingham, 753, 754 
 
 Pitzsimmons v. Joslin, 713 
 
 Fivaz V. Nicholls, 712 
 
 Flanegan v. Garrison, 495 
 
 Pleckner v. United States Bank, 602 
 
 Fleet V. Murton, 365 
 
 Fleming v. Donahoe, 562 
 
 Fleming v. Dunbar, 399 
 
 Fleming v. Hayne, 448 
 
 Fleming v. Marine Ins. Co., 624 
 
 Fleming v. Potter, 699 
 
 Fleming v. Ramsey, 425 
 
 Flemm v. Whitmore, 523 
 
 Flenner v. Plenner, 503 
 
 Fletcher v. Cole, 676 
 350 
 
 
 Section 
 
 Fletcher v. Peck, 
 
 138 
 
 Flight V. Reed, 
 
 47 
 
 Floyd V. Harrison, 
 
 519 
 
 Floyd V. Taylor, 
 
 762 
 
 Foley V. Cowgill, 
 
 765 
 
 Foley V. Howard, 
 
 763 
 
 Follansbe v. Kilbreth, 
 
 112 
 
 Polsom V. Great Falls Manuf. Co., 534 
 
 Folsom V. Moore, 547 
 
 Fonda v. Van Home, 264 
 
 Fontaine v. Aresta, 758 
 
 Forbes v. Hamilton, 533 
 
 Forbes v. Smiley, 667 
 
 Force v. Haines, 76 
 Ford V. Buckeye State Ins. Co., 727 
 
 Ford V. Ellin wood, 27, 405 
 
 Ford V. Phillips, 276 
 
 Ford V. Smith, 668 
 
 Ford V. Stuart, 563 
 
 Ford V. Ward, 75 
 
 Ford V. Williams, . 360 
 
 Fores v. Jbhnes, 458, 459 
 
 Forraby v. Pryor, 492 
 
 Forney v. Shipp, 357, 428 
 
 Forster v. Fuller, 357 
 
 Forsythe v. State, 459 
 
 Forward v. Harris, 722 
 
 Forward v. Pittard, 612, 614 
 
 Foss V. Hildreth, - 295 
 
 Foss V. Richardson, 426 
 
 Foster v. Clark, 470 
 
 Foster v. Gressett, 203 
 
 Foster v. Kennedy, 223 
 
 Foster v. Knight, 693 
 
 Foster v. Mackinnon, 194, 195 
 
 Poster V. McO'Bleuis, 537 
 
 Poster V. Smith, 362 
 
 Poster V. Stewart, 82 
 
 Pogter v. Wallace, 547 
 Pournier v. Cyr, 19, 21, 369 
 
 Pouty V. Polity, 27 
 
 Fowle V. Bigelow, 578 
 
 Fowler v. Armour, 683 
 
 Fowler v. Burget, 506 
 
 Fowler v. Shearer, 353 
 
 Fox V. Harding, 657 
 
INDEX TO CASES CITED. 
 
 
 Section 
 
 Fox V. Longly, 
 
 505 
 
 Fox V. Norton, 
 
 899 
 
 Francis v. Felmit, 
 
 272 
 
 Franklin v. Ezell, 
 
 711 
 
 Franklin v. Greene, 
 
 212 
 
 Fratt V. Fiske, 
 
 204 
 
 Frazer v. Robinson, 
 
 138 
 
 Frazier v. Erie Bank, 
 
 362 
 
 Frazier v. Massey, 
 
 277 
 
 •Frear v. Hardenbergh, 
 
 534 
 
 Freeman v. Cooper, 
 
 505 
 
 Freeman v. Headley, 
 
 147, 533 
 
 Freeman v. Peay, 
 
 760 
 
 Freeman v. Staats, 
 
 302 
 
 French v. French, 
 
 302 
 
 French v. Millard, 
 
 426 
 
 French v. New, 
 
 35, 52 
 
 French v. Patton, 
 
 653 
 
 French v. Pearce, 
 
 598 
 
 French v. Price, 
 
 359 
 
 Frenzel v. Miller, 
 
 223 
 
 Fried D.^Eoyal Tns. Co., 
 
 711 
 
 Friend v. Harrison, 
 
 494 
 
 Prierwood v. Pierce, 
 
 425 
 
 Frisbie v. Lamed, 
 
 415 
 
 Frost V. Belmont, 
 
 492 
 
 Frost V. Deering, 
 
 168 
 
 Frost V. Everett, 
 
 645 
 
 Frost V. Hanford, 
 
 393 
 
 Frost V. Knight, 
 
 692 
 
 Fuentes v. Montis, 
 
 297, 320 
 
 Fugure v. Mutual Society, 
 
 419 
 
 Fuller «. Hubbard, 
 
 697 
 
 Fuller V. Smith, 
 
 697 
 
 Fullerton v. Sturges, 
 
 637 
 
 Fulton, Ex parte 
 
 21 
 
 Funck V. Hough, 
 
 428 
 
 Furbush v. Goodwin, 
 
 602 
 
 Furguson v. Coleman, 
 
 214 
 
 Gadsden v. Lance, 
 
 537, 551 
 
 Gage V. Gage, 
 
 327 
 
 Gainsford v. Griffith, 
 
 756, 758 
 
 Gaither v. Gaither, 
 
 288 
 
 Gale V. Coburn, 
 
 27 
 
 Gale V. Leckie, 
 
 458 
 
 Section 
 
 Gale V. Nixon, 510 
 
 Gale V. Tappan, 840 
 
 Gait V. Galloway, 841 
 
 Galton V. Bmuss, 481 
 
 Galway v. Fullerton, 563 
 
 Gano V. Aldridge, 682 
 
 Garbutt v. Watson, 551 
 
 Gardiner «. Carson, 589 
 
 Gardiner v. Harback, 644 
 
 Gardiner v. Houghton, 736 
 
 Gardiner v. Morse, 481 
 
 Gardiner ». Suydam, 647 
 Gardner Manuf. Co. v. Heald, 94 
 
 Gardner v. Merritt, 434 
 
 Gardner v. Ogden, 733 
 
 Gardner v. Walsh, 653 
 
 Garner v. Garner, 236 
 
 Garnett v. Garnett, 581 
 
 Garnett v. Toe, 758 
 Garnons v. Knight, 762, 763 
 
 Garnsey v. Gardner, 61 
 
 Garrow v. Carpenter, 61 
 
 Gartner v. Barnitz, 219 
 
 Gaslight, etc., Co. v. Turner, 458 
 Gates V. Bliss, 203, 204 
 
 Gates V. Caldwell, 101 
 
 Gathwright v. Callaway, 584 
 Gatlin v. Wilcox, 667, 676 
 
 Catling V. Newell, 220 
 
 Gaule V. Bilyeau, 587 
 
 Gaussen v. Morton, 339 
 
 Gay V. Ballou, 266 
 
 Gaylord Manuf. Co. v. Allen, 97 
 
 Geary v. Physic, 165 
 
 Gee V. Gee, 112 
 
 Geiger v. Cook, 425 
 
 George v. Harris, 428 
 
 Georgia Ins. Co. v. BUicott, 447 
 
 Gerard v. Basse, 399 
 
 Gerrish v. German Ins. Co., 50 
 
 Getty V. Bountree, 97 
 Gibbs ». Bryant, 78, 90 
 
 Gibbs V. Frost, 369 
 
 Gibbs V. Smith, 481 
 
 Gibson v. Bogy, 580 
 
 Gibson v. Chouteau, 498 
 351 
 
INDEX TO CASES CITED. 
 
 
 Section 
 
 Gibson v. Dunnam, 
 
 695 
 
 Gibson v. Partee, 
 
 765 
 
 Gibson V. Soper, 
 
 295 
 
 Gil V. Williams, 
 
 492 
 
 Gilbert v. Burgott, 
 
 213 
 
 Gilbert v. Eoss, 
 
 81 
 
 Gill V. Bradley, 
 
 700 
 
 Gillespie v. Beed, 
 
 640 
 
 Gillet V. Burr, 
 
 535 
 
 Gillighau v. Boardman, 
 
 524 
 
 Gilliland v. Phillips, 
 
 463 
 
 Gillum V. Dennis, 
 
 589 
 
 Gilnian v. Dwight, 
 
 479 
 
 Gilman v. Hill, 
 
 552 
 
 Gilmer v. Gilmer, 
 
 611 
 
 Gilpin V. Howell, 
 
 360 
 
 Gilson V. Stewart, 
 
 34 
 
 Gimon v. Davis, 
 
 671 
 
 Girardy v. Kichardson, 
 
 496 
 
 Giraud v. Kichmond, 
 
 58, 541, 650 
 
 Given v. Albert, 
 
 394 
 
 Glasgow V. Hobbs, 
 
 420 
 
 Glasscock v. Minor, 
 
 219 
 
 Gleason v. Briggs, 
 
 521 
 
 Glendale Woolen Co. v. Protec- 
 tion Ins. Co., 576 
 Glenn v. Thistle, 732 
 Goddard's Case, 19 
 Goddard v. Foster, 741 
 Godden v. Pierson, 506 
 Goddin v. Shipley, 731 
 Goldrich v, Ryan, 97 
 Golson V. Ebert, 731 
 Goldthwaite v. McWhorter, 351 
 Goman v. Salisbury, 667 
 Gooch V. Holmes, 550 
 Good V. Elliott, 489 
 Goodall V. Thurraan, 494 
 Goode V. Hawkins, 481 
 Goodenow v. Tyler, 351 
 Goodman v. Eastman, 644 
 Goodnow V. Smith, 415 
 Goodpastor v. Porter, , 430 
 Goodrich v. Laflin, 675 
 Goodrich u. Reynolds, 311 
 Goodright v. Gregory, 762 
 
 352 
 
 Section 
 
 Goodrum v. Smith, 547 
 
 Goodsell V. Myers, 276 
 
 Goodspeed v. Puller, 523 
 
 Goodwin v. Garr, 318 
 
 Goodwin v. Gilbert, 111, 119 
 
 Goodwin v. Merrill, 681 
 
 Gordon v. Bruner, 81 
 
 Gordon v. Bulkeley, 327 
 
 Gordon v. Little, 572 
 
 Gordon v. Potter, 86 
 
 Gordon i). 'Preston, 313 
 
 Gordon v. Rimmington, 612 
 
 Gordon v. Wilson, . 435 
 
 Gore V. McBrayer, 534 
 
 Gore V. Mason, 427 
 
 Gorman v. Carroll, 81 
 
 Goss V. Whitney, 486 
 Gossler v. Eagle Sugar Refinery, 97 
 
 Gotham v. Gotham, 127 
 
 Goudy V. Gebhart, 25 
 
 Gould V. Mansfield, • 634 
 
 Goward v. Waters, 65 
 
 Gowen v. Gerrish, 754 
 
 Gower v. Carter, 653 
 
 Grace v. Hale, 272 
 Grady v. American Cent. Ins. Co., 350 
 
 Grady v. Robinson, 399 
 
 eras' u. Bloomer, 605 
 
 Grafton Bank v. Woodward, 645 
 
 Graham v. O'Niel, 520 
 
 Gram v. Seton, 399 
 Grand Gulf Railroad and Banking 
 
 Co. V. Bryan, 581 
 
 Grannis v. Clark, 124 
 
 Grant v. Beard, 707 
 
 Grant v. Thompson, 295 
 
 Grasselli v. Lowden, 478, 479 
 
 Gratz V. Catlin, 766 
 
 Graves v. Graves, 534 
 Graves U.Lebanon National Bank, 223 
 
 Graves v. Smedes, 14 
 
 Graves v. Ticknor, 422 
 
 Graves v. Tucker, 765 
 
 Gray u. Blanchard, 659 
 
 Gray v. Eowler, 206 
 
 Gray v. Gray, 506 
 
INDEX TO CASES CITED. 
 
 
 Section 
 
 
 Section 
 
 Gray v. Hook, 
 
 491 
 
 Grumley v. Webb, 
 
 63 
 
 Gray v. Mathias, 
 
 494 
 
 Grundy v. Edwards, 
 
 479 
 
 Graysons v. Eichards, 
 
 671 
 
 Grymes v. Blofleld, 
 
 706 
 
 Great Western Telegraph, 
 
 In re 201, 
 
 Guenther ■». Dewien, 
 
 460 
 
 
 311 
 
 Guerand v. Bandelet, 
 
 478 
 
 Greathouae v. Dunlap, 
 
 26, 29 
 
 Guild V. Eager, 
 
 602 
 
 Greeley v. Thurston, 
 
 702 
 
 Guild V. Leonard, 
 
 119 
 
 Green's Case, 
 
 600 
 
 Gulick V. Ward, 
 
 489 
 
 Green v. Armstrong, 
 
 533 
 
 Gulledge v. Howard, 
 
 422 
 
 Green v. Brookina, 
 
 49 
 
 Gunmakers v. Fell, 
 
 28 
 
 Green v. Clark, 
 
 605 
 
 Gunn V. Cantine, 
 
 361 
 
 Green v. Green, 
 
 267 
 
 Gunn V. McAden, 
 
 415 
 
 Green v, HoUingsworth, 
 
 140 
 
 Gunter v, Williams, 
 
 400 
 
 Green v. North Buffalo, 
 
 169 
 
 Gushee v. Eddy, 
 
 697, 699 
 
 Green v. Salmon, 
 
 256 
 
 Gupton V. Gupton, 
 
 505 
 
 Green v. Sarmiento, 
 
 734 
 
 Guthrie v. Thompson, 
 
 508, 667 
 
 Green v. Thompson, 
 
 409 
 
 Gwinn v. Booker, 
 
 399 
 
 Green v. Wells, 
 
 37 
 
 
 
 Greene v. Bartholomew, 
 
 420 
 
 Haas V. Penlon, 
 
 491 
 
 Greene v. Godfrey, 
 
 487 
 
 Hacket *. Tilly, 
 
 24 
 
 Greene v. Tyler, 
 
 572 
 
 Hackleman v. Miller, 
 
 516 
 
 Greenlee v. Gaines, 
 
 212 
 
 Hagaman v. Neitzel, 
 
 81 
 
 Greenwood-!). Curtis, 140, 699, 720, 723 
 
 Hagood V. Harley, 
 
 765 
 
 Greer u. Caldwell, 
 
 236 
 
 Haines «. Haines, 
 
 409 
 
 Grierson v. Mason, 
 
 170 
 
 Hairston v. Jaudon, 
 
 530 
 
 Griffin v. Blandford, 
 
 571 
 
 Hale V. Brown, 
 
 286, 291 
 
 Griffin v. Chubb, 
 
 221 
 
 Hale V. Henderson, 
 
 458 
 
 Griffin v. Marine Co., 
 
 251 
 
 Hale V. Lawrence. 
 
 743 
 
 Griffin v. Bichardson, 
 
 185 
 
 Hall V. Bradbury, 
 
 223 
 
 Griffith V. Buffum, 
 
 394 
 
 Hall V. Chandless, 
 
 653 
 
 Griffith V. Goodhand, 
 
 694 
 
 Hall V. Cockrell, 
 
 357 
 
 Griffith V. Spratley, 
 
 409 
 
 Hall V. Gushing, 
 
 584 
 
 Griggs V. Morgan, 
 
 426 
 
 Hall V. Delaplaine, 
 
 752 
 
 Grimwood v. Moss, 
 
 656 
 
 Hall V. Eullerton, 
 
 203, 204 
 
 Grinnell v. Buchanan, 
 
 350 
 
 Hall V. Hall, 
 
 288 
 
 Griswold v. Scott, 
 
 238, 576 
 
 Hall V. HuntooD, 
 
 358 
 
 Groner v. Smith, 
 
 16 
 
 Hall V. McLeod, 
 
 534 
 
 Grosvenor v. Magill, 
 
 748 
 
 Hall V. MuUin, 
 
 458 
 
 Groton v. Waldoborough, 
 
 140 
 
 Hall V. Naylor, 
 
 221 
 
 Grout V. Townsend, 
 
 27 
 
 Hall V. Perkins, 
 
 212 
 
 GroTe V. Brien, 
 
 763 
 
 Hall V. Thompson, 
 
 220 
 
 Grove v. Hodges, 
 
 167, 218 
 
 Hall 1!. Warren, 
 
 286 
 
 Groves v. Nutt, 
 
 720 
 
 Hall V. Williams, 
 
 862 
 
 Groves v. Perkins, 
 
 409 
 
 Hallett V. Collins, 
 
 171, 409 
 
 Grubbs v. Wiley, 
 
 853 
 
 Halloway v. Lacy, 
 
 588 
 
 Grugeon v. Gerrard, 
 
 762 
 
 Ham V. Goodrich, 
 
 505 
 353 
 
INDEX TO CASES CITED. 
 
 Hambel v. Tower, 
 Hamilton v. Foster, 
 Hamilton v. Pitcher, 
 Hamilton v. Scull, 
 Hamilton v. Vought, 
 Hamlin «. Stevenson, 
 Hammersley v. Baron de Biel, 
 Hammond v. Cadwallader, 
 Hammond v. Gilmore, 
 Hammond v. Hannin, 
 Hampshire v. Franklin, 
 Hampshire Bank v. Willard, 
 Hanauer v. Doane, 
 Hanauer v. Gray, 
 Hancock u. Byrne, 
 Hancock v. "Watson, 
 Handy v. Brown, 
 Hanff V. Howard, 
 Hanford v. McNair, 
 Hankins v. Baker, 
 Hankins, Eex v. 
 Hanks v. McKee, 
 Hannah v. WadSworth, 
 Hannan v. Oxley, 
 Hannon v. State, 
 Hantz, Commonwealth v. 
 Hapgood V. Shaw, 
 Harbert v. Dumont, 
 Hardee v. Howard, 
 
 Hardeman v. Burge, 
 
 Hardeman v. Cowan, 
 
 Harden v. "Webster, 
 
 Harder v. Harder, 
 
 Hardin v. Major, 
 
 Harding v. Randall, 
 
 Hardy v. Merriweathar, 
 
 Hardy v. "Winter, 
 
 Hariston v. Sale, 
 
 Harkins v. Edwards, 
 
 Harkness v. Fraser, 
 
 Harlow v. Boswell, 
 
 Harman v, Harman, 
 
 Harmon v. Bird, 
 
 Harmony v. Binham, 
 
 Harper v. Fairley, 
 
 Harper v. Hampton, 
 
 354 
 
 Section 
 699 
 694 
 601 
 480 
 201 
 261 
 208 
 534 
 697 
 707 
 711 
 577 
 496 
 471 
 385 
 591 
 265 
 112 
 327 
 711 
 44 
 97, 219 
 65 
 63 
 435 
 266 
 688 
 421 
 753 
 409 
 699 
 14 
 505 
 748 
 223 
 311 
 582 
 681 
 358 
 227 
 602 
 14 
 427 
 145, 247 
 447 
 82 
 
 Harper v. State, 
 Harreil v. Miller, 
 Harriman, The 
 Harriman v. Harriman, 
 Harriman v. Park, 
 Harrington «. Wells, 
 Harris v. Blen, 
 Harris v. Bradley, 
 Harris v. Cannon, 
 Harris v. Currier, 
 Harris v. Harris, 
 Harris v. Porter, 
 Harris v. Saunders, 
 Harris v. Tyson, 
 Harrison v. Adcock, 
 Harrison v. Cage, 
 Harrison v. Colton, 
 Harrison v. Jackson, 
 Harrison v. Jameson, 
 Harrison v. Sawtel, 
 Harrod v. Myers, 
 Harrow v. Johnson, 
 Harshaw v. McKesson, 
 Hart V. Bray, 
 Hart V. "Withers, 
 Hart V. "Wright, 
 Hartley's Appeal, 
 Hartshorn v. Day, 
 Hartwell v. Jewett, 
 Hartzell v. Saunders, 
 Harwood v. Jones, 
 Harwood v. Knapper, 
 Harvey ti. Olney, 
 Harvey v. Varney, 
 Haskell v. Blair, 
 Haskins v. Lombard, 
 Haskins v. "Warren, 
 Haslack v. Mayers, 
 Hassinger v. Solms, 
 Hastings v. Levering, 
 Hatch V. Barr, 
 Hatcher v. Andrews, 
 Hatcher v. McMorine, 
 Hathaway v. Moran, 
 Hatton V. Landman, 
 Hatzfield v. Gulden, 
 
 Section 
 644 
 533 
 612 
 412 
 119 
 691 
 702 
 668, 669 
 276 
 77 
 23 
 537 
 762 
 219 
 276 
 529 
 484 
 354, 399 
 236 
 523 
 272 
 506 
 327, 328 
 176 
 399 
 97 
 339 
 24 
 681 
 428 
 622, 545 
 418, 480, 712 
 145, 247 
 712 
 663 
 171 
 672 
 681 
 78 
 357 
 315 
 478 
 730 
 458 
 112 
 492 
 
INDEX TO CASES CITED. 
 
 Haven v. Adams, 
 Haviland v Halstead, 
 Hawes tj. Armstrong, 
 Hawes v. Smith, 
 Hawes v. W oolcock, 
 Hawkes v. Pike, 
 Hawkins v. Ball, 
 Hawkins v. Chace, 
 Hawley v. Parrar, 
 Hawley v. Moody, 
 
 Section 
 315 
 693 
 123 
 590 
 522 
 18 
 622 
 168 
 647 
 503, 504 
 
 Hayden v. Middlesex Turnpike, 375 
 Hayes v. Kershow, 405 
 
 Hayes v. McConnell, 77 
 
 Hayes v. Willio, 620 
 
 Haynes v. Kogillio, 65 
 
 Haynes v. Seachrest, 399 
 
 Hays V. Bonner, 219 
 
 Hays V. Lasater, 14 
 
 Hays V. McFarlan, 476, 495 
 
 Hazard v. Day, 513 
 
 Hazard v. Irwin, 24, 214, 219 
 
 Hazard v. New England Marine 
 
 Ins. Co., 174 
 
 Hazelrigg v. Donaldson-. 245 
 
 Head v. Goodwin, 557 
 
 Head v. Providence Ins. Co., 307, 314 
 Heald v. Warren, 855 
 
 Heard v. Bowers, 692, 694 
 
 Heard v. Pilley, 330 
 
 Heath v. Nutter, 347 
 
 Heath v. West, 267 
 
 Heath v. Williams, 59 
 
 Heathcote v. Crookshanks, 412 
 
 Hebert v. Turbatt, 261 
 
 Heichew v. Hamilton, 478 
 
 Heineman v. Newman, 480, 712 
 
 Heller v. Crawford, 485 
 
 Helm V. Wilson, 698 
 
 Helmsley v. Loader, 127 
 
 Helshaw v. Langley, 168 
 
 Hemming v. Trenery, 635 
 
 Henderson v. Barbee, 899 
 
 Henderson v. Cummings, 709 
 
 Henderson v. McGregor, 289 
 
 Henderson v. Bailroad, 387 
 
 Hendy v. Soule, 247 
 
 Section 
 
 Henfree v. Bromley, 637 
 
 Hening v. United States Ins. Co., 50 
 
 Henley v. Brown, 534 
 
 Hennequin v. Naylor, 221 
 
 Hennessey v. Hill, 418 
 
 Henry v. Gates, 399 
 
 Henry v. Jones, 749 
 
 Henry v. Ritenour, 301, 303 
 Henwood v. Cheeseman, - 733 
 
 Herbert v. Hanrick, 399 
 Hernandez v. Sun Mutual Ins. Co., 599 
 
 Herrick v. Bean, 65 
 
 Herrick v. Hopkins, 579, 593 
 
 Herrin v. Butters, 536 
 
 Hersohfeld v. Dexel, 731 
 
 Hertzog v. Hertzog, 77 
 
 Heseltine v. Siggers, 550 
 
 Hess V. Pinal, 712 
 
 Hesse v. Stevenson, 577, 593 
 
 Hester v. Keith, 584 
 
 Hewett V. Bronson, 94 
 
 Heywood v. Heywood, 579, 593 
 
 Hibblewhite v. McMorine, 370 
 
 Hickock V. Hoyt, 680 
 
 Hicks V. Burhans, 444 
 
 Higgins V. Moore, 321, 351 
 
 Higgins V. Senior, 357, 359, 363 
 
 Higgins V. Wasgatt, 575, 585 
 
 Higginson v. Weld, 754 
 
 Higgs V. Smith, 206, 214 
 
 Hilb V. Peyton, 58 
 Hildreth u. Pinkerton Academy, 420, 
 
 647 
 
 Hill V. Anderson, 277 
 
 Hill V. Bush, 219 
 
 Hill V. Doughty, 619 
 
 Hill V. Pisher, 752 
 
 Hill V. Hooper, 541 
 
 Hill V. Jamieson, 689 
 
 Hill V. Kidd, 489 
 
 Hill V. Raymond, 520 
 
 Hill V. Bessegieu, 842 
 
 Hill V. Scales, 168, 374 
 
 Hill V. School District, 750 
 
 Hill V. Sherwood, 483 
 
 Hill V. Smith, 545, 698 
 
 355 
 
INDEX TO CASES CITED. 
 
 Section 
 
 Hillebrant v. Brewer, 434 
 
 Hillsborough v. Londonderry, 94 
 
 Hilton V. Eekersley, 478 
 
 Hilton V. Houghton, 486 
 
 Hinchraan v. Bmans, 285, 291 
 
 Hinckley v. Arey, S33 
 
 Hinckley v. Southgate, 542 
 
 Hinesburgh v. Sumner, 473 
 
 Hingham v. Sprague, 532 
 
 Hinsdill v. White, 81 
 
 Hinton v. Locke, 572 
 
 Hinton v. Sparkes, 753 
 
 Hirschfeld v. Smith, 639, 730 
 
 Hirschman v. Budd, 639 
 
 Hiscocks V. Hiscocks, 581 
 
 Hitchcock V. Coker, 479 
 
 Hoag V. Hoag, 252 
 
 Hobbs V. Parker, 219 
 
 Hockenbury v. Meyers, 421 
 
 Hocker v. Gentry, 425 
 
 Hodge V. Combs, 385 
 
 Hodges V. Green, 357 
 
 Hodgkinson, Ex parte J 7 
 
 Hodgson V. Dexter, 366 
 
 Hodson V. Ingram, 24 
 
 Hodson V. "Wilkins, 469 
 
 Hoffman v. Noble, 200 
 
 Hoffman v. Strohecker, 200, 221 
 
 Hogan V. Welcker, 587 
 
 Hogg V. "Wilkins, 534 
 
 Hoit V. Underbill, 276 
 
 Holbrook v. Armstrong, 537 
 
 Holbrook v. Burt, 203 
 
 Holbrook v. Holbrook, 65 
 
 Holbrook v. Tirrell, 671 
 
 Holden v. Bloxum, 394, 397 
 
 Holden v. Cosgrove, 647 
 
 Holden v. Dakin, 97 
 
 Holden t>. Smallbrcoke, 258 
 
 Holeman v. Hobson, 602 
 
 Holford V. Adams, 572 
 
 Holford V. Parker, 765, 766 
 
 HoUaday v. Baily, 347 
 
 HoUaday v. Kennard, 614 
 
 Holland v. Anderson, 210, 219 
 
 Holland v. Bouldin, 630 
 
 356 
 
 
 Section 
 
 Holland v. Miller, 
 
 291 
 
 Holland v. San Francisco, 
 
 314 
 
 Hollomon v. Hollomon, 
 
 731 
 
 HoUoway, Commonwealth v 
 
 737 
 
 HoUoway v. GriflBth, 
 
 692. 693 
 
 Holloway o. Hampton, 
 
 541 
 
 Holmes' Appeal, 
 
 . 65 
 
 Holmes v. Blogg, 
 
 267 
 
 Holmes v. Hall, 
 
 602 
 
 Holmes v. Hill, 
 
 242 
 
 Holmes v. Johnson, 
 
 572 
 
 Holmes v. Knights, 
 
 523 
 
 Holmes v. Martin, 478 
 
 577, 593 
 
 Holt V. Clarencieux, 
 
 157, 275 
 
 Homer v. Ashford, 
 
 478 
 
 Homes v. Smith, 
 
 749 
 
 Honore v. Colmesnil, 
 
 569 
 
 Hooban v. Bidwell, 
 
 435 
 
 Hook V. Turner, 
 
 481 
 
 Hooker v. Hubbard, 
 
 127 
 
 Hooper v. "Wells, 
 
 322, 605 
 
 Hopkins v. Blane, 
 
 380 
 
 Hopkins v. MoUinieux, 
 
 332 
 
 Hopkins v. Young, 
 
 694 
 
 Hopkirk v. Bell, 
 
 820 
 
 Hopper V. Eiland, 
 
 760 
 
 Hopper V. Sisk, 
 
 223 
 
 Hore V. "Whitmore, 
 
 625 
 
 Horn V. Gartman, 
 
 435 
 
 Horner v. Graves, 
 
 479 
 
 Horsey v. Graham, 
 
 513 
 
 Horsfall v. Thomas, 
 
 215 
 
 Hortori V. McCarty, 
 
 834 
 
 Horton v. Sledge, 
 
 27 
 
 Hoskinson v. Eliot, 
 
 400 
 
 Hotchkiss V. Judd, 
 
 426 
 
 Hough V. Hunt, 
 
 409 
 
 Hough V. Eichardson, 
 
 212 
 
 Houghtaling u. Ball, 
 
 554 
 
 Houghtaling v. Marvin, 
 
 342 
 
 Houghton V. Houghton, 
 
 539 
 
 Houghwout V. Boisaubin, 
 
 183 
 
 Houston V. Laffee, 
 
 532 
 
 How V. ICemball, 
 
 524 
 
 Howard's Case, 
 
 261 
 
 Howard v. Brainthwaite, 
 
 375 
 
INDEX TO CASES CITED. 
 
 Howard v. Branner, 
 Howard v, Burgen, 
 Howard v. Coke, 
 Howard v. Coshow, 
 Howard v. Easton, 
 Howard v. Howey, 
 
 Section 
 731 
 540 
 288 
 522 
 534 
 97 
 
 Howard Pire Ins. Co. v. Bruner, 599 
 Howe V. Buffalo, etc., Bailroad, 94 
 
 Howe V. Litchfield, 476, 495 
 
 Howe V. Huntington, 697 
 
 Howell V. Bulkley, 563 
 
 Howell V. Coupland, 625 
 
 Howell V. Delancey, 27 
 Howell V. Knickerbocker Life Ins. 
 
 Co., 630 
 
 Howlaijd V. Harris, 547 
 
 Howland v. Leach, 589 
 
 Hovey v. Chase, 290 
 
 Hovey v. Hobson, 277, 290, 294, 296, 
 
 297 
 
 Hoxie V. Lincoln, 272, 276 
 
 Hoy V. Hoy, 758 
 
 Hubbard v. Briggs, 223 
 
 Hubbard v. Hickman, ,433 
 
 Hubbell V. Flint, 482 
 
 Hubbell V. Meigs, 228 
 
 Hubbert v. Borden, 359 
 
 Hudson V. Alexander, 27 
 
 Hudson V. Eevett, 653 
 
 Hudson V. "Weir, 547, 550 
 Hudson Canal v. Pennsylvania 
 
 Coal Co., 121 
 
 Huey's Appeal, 720, 733 
 
 Huffman v. Starks, 532 
 
 Hughes «. Edwards, 630 
 
 Hughes V. Prewitt, 687 
 
 Huling V. Craig, 626 
 
 Hull V. Cunningham, 236 
 
 Hull V. Sturdivant, 755 
 
 Hulse V. Young, 322 
 
 Human v. Cuniffe, 400 
 
 Humble v. Hunter, 363 
 
 Humble v: Mitchell, 650 
 
 Humfrey v. Dale, 365 
 Hungerford National Bank v. Van 
 
 Nostrand, 132 
 
 Seotios 
 
 Hunt V. Adams, 639 
 
 Hunt V. Bate, 443 
 
 Hunt V. Douglass, 350 
 
 Hunt V. Erost, 481, 577 
 
 Hunt V. Livermore, 697 
 
 Hunt «. Peake, 265, 272 
 
 Hunt V. Eousmanier, 339, 342 
 
 Hunt V. Silk, 669 
 
 Hunter v. Agee, 470 
 
 Hunter «; McLaughlin, 409 
 
 Hunter v. Miller, 853, 575 
 
 Hunter v. "Walters, 194 
 
 Hunter v. "Watson, 255 
 
 Huntington v. Einch, 689 
 
 Huntington v. Hall, 96 
 
 Huntington v. Havens, 698 
 
 Huntington v. Knox, 360 
 
 Hurley v. Brown, 509 
 
 Hursh V. North, 572 
 
 Huss V. Morris, 286 
 
 Hussey v. Koquemore, 483 
 
 Hutchen v. Gibson, 492 
 
 Hutchings v. Dixon, 598 
 
 Hutchings v. Moore, 589 
 
 Hutchins v. Hebbard, 389, 576 
 
 Hutchins v. King, 633 
 
 Hutchinson v. Brown, 301 
 
 Hutchinson v. Hutchinson, 640 
 
 Hutchinson v. Tatham, 365 
 
 Hutchinson v. "Watkins, 200 
 
 Hutton V. Bulloch, 357 
 
 Hyde v. Liverse, 90 
 Hydeville Co. v. Eagle Railroad 
 
 and Slate Co., 35, 579 
 
 Hyer v. Hyatt, 91, 266 
 
 Hyman v. Cain, 266 
 
 Hynson v. Noland, 339 
 
 Ide V. Eassett, 619 
 Illinois Central Eailroad v. Mc- 
 
 Clellan, 614 
 
 Imlay v. EUefsen, 739 
 
 Indiana v. "Woram, 310 
 
 IngersoU v. Campbell, 140 
 
 IngersoU v. Kendall, 436 
 
 Ingraham v. Baldwin, 296 
 357 
 
INDEX TO CASES CITED. 
 
 
 Section 
 
 
 Section 
 
 Ingraham v. Geyer, 
 
 
 735 
 
 Jenkins v. Prink, 
 
 481 
 
 Ingraham v. Leland, 
 
 
 323 
 
 Jenkins v. Jenkins, 
 
 272 
 
 Ingram v. Ingram, 
 
 
 481 
 
 Jenkins v. Motlow, 
 
 422 
 
 Ingram v. Jordan, 
 
 
 216 
 
 Jenkins v. Temples, 
 
 478 
 
 Inman v. Stamp, 
 
 
 532 
 
 Jenkins v. Thompson, 
 
 669 
 
 Iredell v. Barbae, 
 
 
 578 
 
 Jenkins v. "Williams, 
 
 430 
 
 Irion 1). Hume, 
 
 
 630 
 
 Jenners v. Howard, 
 
 289 
 
 Irion V. Mills, 
 
 
 186 
 
 Jennings v. Brown, 
 
 445, 453 
 
 Irons V. Smallpiece, 
 
 434 
 
 435 
 
 Jennings v. Gage, 
 
 200, 679 
 
 Irvine v. Irvine, 
 
 264 
 
 276 
 
 Jennings, State v. 
 
 353 
 
 Irving V. Thomas, 
 
 
 213 
 
 Jennings v. Throgmorton, 
 
 496 
 
 Isaacs V. Eoyal Ins. Co. 
 
 
 749 
 
 Jennings v. Webster, 
 
 522 
 
 Ish V. Crane, 
 
 
 382 
 
 Jervis v. Berridge, 
 
 505 
 
 Ishmael v. Parker, 
 
 
 697 
 
 Jesup V. City Bank, 
 
 376 
 
 Ives V. Bosley, 
 
 
 418 
 
 Jeter v. Tucker, 
 
 213 
 
 Ives V. Jones, 
 
 
 467 
 
 Jewell V. "Wright, 
 
 724 
 
 Ivey V. Lalland, 
 
 
 728 
 
 Jilson V. Gilbert, 
 
 544,545 
 
 Izard V. Tzard, 
 
 
 537 
 
 Joest V. "Williams, 
 Johns V. Battin, 
 
 805 
 399 
 
 Jack V. Dougherty, 
 
 
 65 
 
 Johns V. Fritchey, 
 
 300 
 
 Jackson v. Baker, 
 
 
 754 
 
 Johns V. Lantz, 
 
 447 
 
 Jackson v. Covert, 
 
 
 551 
 
 Johnson v. Bair'd, 
 
 699 
 
 Jackson v. Duchaire, 
 
 
 480 
 
 Johnson v. Barber, 
 
 387 
 
 Jackson v. Hanna, 
 
 
 733 
 
 Johnson v. Boyles, 
 
 65 
 
 Jackson v. Jackson, 
 
 206, 209 
 
 213 
 
 Johnson v. Chadwell, 
 
 285 
 
 Jacob V. Smith, 
 
 
 506 
 
 Johnson v. Farley, 
 
 762, 763 
 
 Jacobs V. Stokes, 
 
 
 140 
 
 Johnson v. Houghton, 
 
 585 
 
 Jakeway v. Barrett, 
 
 
 598 
 
 Johnson v. Johnson, 
 
 291 
 
 James v. Bixby, 
 
 
 75 
 
 Johnson v. Pryor, 
 
 212 
 
 James v. Drake, 
 
 
 534 
 
 Johnson v. Randall, 
 
 44 
 
 James v. Pulcrod, 
 
 112, 431 
 
 481 
 
 Johnson v. Reed, 
 
 «20, 589 
 
 James v. Langdon, 
 
 285 
 
 291 
 
 Johnson v. Reynolds, 
 
 422 
 
 James v. O'DriscoU, 
 
 
 76 
 
 Johnson v. Rockwell, 
 
 272 
 
 Jamison v. Moon, 
 
 
 81 
 
 Johnson v. Stevens, 
 
 434 
 
 Jansen v. McCahill, 
 
 
 168 
 
 Johnson v. "Walker, 
 
 669 
 
 Janvrin v. Exeter, 
 
 
 177 
 
 Johnson v. "Willis, 
 
 487 
 
 Jaques v. Golightly, 
 
 
 141 
 
 Johnston v. Cope, 
 
 97 
 
 Jaques v. Todd, 
 
 
 379 
 
 Johnston v. Crawley, 
 
 315 
 
 Jarrett v. Morton, 
 
 
 669 
 
 Johnston v. Dutton, 
 
 393 
 
 Jarvis v. Sutton, 
 
 155 
 
 425 
 
 Johnston v. Salisbury, 
 
 37 
 
 Jarvis, United States v. 
 
 
 338 
 
 John, People v. 
 
 171 
 
 Jeffery v. Underwood, 
 
 
 17 
 
 Jones's Case, 
 
 471 
 
 .Tefford v. Ringgold, 
 
 
 276 
 
 Jones V. Austin, 
 
 192 
 
 Jeffrey v. Bigelow, 
 
 
 387 
 
 Jones V. PuUitt, 
 
 416 
 
 Jpmison v. McDaniel, 
 
 
 625 
 
 Jones V. Carter, 
 
 853 
 
 JcTiesoii V. Jeneson, 
 
 285 
 
 291 
 
 Jones V. Caswell, 
 
 481 
 
 3.5S 
 
INDEX TO CASES CITED. 
 
 Section 
 
 Jones V. Cooper, 520 
 
 Jones V. Heavens, 478 
 
 Jones V. Hill, 206 
 
 Jones V. Jones (18 Ala. 248), 743 
 
 Jones V. Jones (12 Ind. 389), 65 
 Jones V. Jones (2 Swan, Tenn. 
 
 605), 683 
 
 Jones V. Loggins, 669 
 
 Jones V. Murray, 97 
 
 Jones V. Neale, 668 
 
 Jones V. Perkins, 286, 291, 416 
 
 Jones V. Kandall, 459, 460, 472 
 
 Jones V. Shorter, 523 
 
 Jones V. Walker, 695 
 
 Jones t!. "Wilson, 706 
 
 Jorda V. Lewis, 547 
 
 Jordan v. Meredith, 572 
 
 Jordan v. Neilson, 372 
 
 Jordan v. Norton, 174 
 
 Jordan v. Pollock, 671, 765 
 
 Jordan v. Rhodes, 657 
 
 Josey V. Wil., etc., Bailroad, 315 
 
 Joyce V. Kennard, 605 
 
 Judges, Keport of . 747, 758 
 
 Judkins v. Walker, 272, 276 
 
 Junction Railroad v. Ashland 
 
 Bank, 726 
 Junk V. Canon, 137 
 Junkins v. Simpson, 218 
 Junkins v. Union School District, 706 
 Justh V. National Bank of Com- 
 monwealth, 200 
 Justice V. Lang, 512 
 
 Kanaga v. Taylor, 724 
 
 Kane v. Gott, 562 
 
 Kane v. Hood, 697 
 
 Kaufman v. Hamm, 483 
 
 Kean v. McKinsey, 524 
 
 Kearney v. Taylor, 481 
 
 Kearsing v. Kilian, 671 
 
 Keating v. Price, 645 
 
 Keaton v. Davis, 86 
 
 Keeble v. Cummins, ' 285, 291 
 
 Keele v. Wheeler, 653 
 
 Keeler v. Salisbury, 415 
 
 Section 
 
 Keep V. Goodrich, 431 
 Keighler u. Savage Manuf. Co., 836 
 
 Keir v. Leeman, 475 
 
 Keirsted v. Avery, 766 
 Keller v. Equitable Pire Ins. Co., 226 
 
 Kelley v. Munson, 362 
 
 Kelley v. Noyes, 242 
 
 Kelley v. Upton, 578 
 
 Kellogg V. Larkin, 478 
 
 Kellogg V. Olmsted, 421 
 
 Kellogg V. Richards, 415 
 
 Kellogg V. Steiner, 195 
 
 Kelly V. Davis, 86 
 
 Kelly V. Roberts, 58 
 
 Kelly V. Terrell, 542 
 Kelly V. Troy Fire Ins. Co., 386, 388 
 
 Kelsey v. Hibbs, 528 
 
 Kelsey «. Hobby, 242 
 
 Kelsey v. United States, 669 
 Kemeys v. Proctor, 330, 334 
 
 Kemp V. Humphreys, 752 
 
 Kenan v. Holloway, 446 
 
 Kendall v. Hughes, 547 
 
 Kendall v. Kendall, 640 
 
 Kendall v. Lawrence, 272 
 
 Kendall v. May, 298 
 
 Kennard.'U. Whitson, 76 
 
 Kenney v. Altvater, 396 
 
 Kennedy v. Kennedy, 227 
 
 Kennedy v. Knight, 726 
 
 Kennedy v. Parke, 388 
 
 Kent «.• Welch, 101 
 
 Kenyon v. Worsley, 448 
 
 Kernion v. Hills, 411 
 
 Kerr v. Bell, 267 
 
 Kerr v. Birnie, 437 
 
 Kerr v. Lucas, 427 
 
 Kershaw v. Whitaker, 524 
 
 Kerwin, Ex parte 653 
 
 Ketchum v. Buffalo, 311 
 
 Ketchum v. Evertson, 681 
 
 Ketchum v. Verdell, 711 
 
 KetchuVn v. Zeilsdorff, 695 
 
 Kettle V. Harvey, 589 
 
 Keyser v. School District, 534 
 Kidder U.Hunt, 503,680 
 359 
 
INDEX TO CASES CITED. 
 
 Section 
 612 
 700 
 278 
 701 
 671 
 524 
 258 
 533 
 405 
 680 
 527 
 471, 473 
 327 
 222 
 578 
 730 
 644 
 693 
 221 
 322 
 683 
 411 
 524 
 504, 545 
 362 
 700 
 533 
 571 
 288 
 29 
 421 
 479 
 219 
 815 
 65 
 752 
 556 
 65 
 
 Kirkman v. Bank of America, 763 
 Kirkpatrick v. Taylor, 27, 405 
 
 Kirksey v. Kirksey, 506 
 
 Klauber v. American Express, 322, 605 
 Kleimpeter v. Harrigan, 581 
 
 Kling V. Sejour, 733 
 
 Klopenstein v. Mulcahy, 221 
 
 Knapp V. Hyde, 242 
 
 ' 360 
 
 Kidder v. Kidder, 
 Kidwelly v. Brand, 
 Kilcrease v. Shelby, 
 Kilgour ». Miles, 
 Killey v. Wilson, 
 Killian v. Ashley, 
 Killian, State ». 
 Killmore v. Hewlett, 
 Killough V. Steele, 
 Kimball v. Cunningham, 
 Kimbrough v. Davis, 
 Kimbrough v. Lane, 
 Kime v. Brooks, 
 Kinard v. Hiers, 
 Kincauuonw. Carroll, 
 King V. Doolittle, 
 King V. Hunt, 
 King V. Kersey, 
 King V. Phillips, 
 King V. Shepherd, 
 King V. Steiren, 
 King, Territory v. 
 King V. Upton, 
 King V. Welcome, 
 Kingman v. Pierce, 
 Kingsbury v. Butler, 
 Kingsley v. Holbrook, 
 Kingsmill v. Bull, 
 Kinne v. Kinne, 
 Kinnebrew v. Kinnebrew, 
 Kinsey v. Wallace, 
 Kinsman v. Parkhurst, 
 Kintzing v. McEIrath, 
 Kinzie v. Chicago, 
 Kinzie v. Penrose, 
 Kirby v. Harrison, 
 Kirby v. Johnson, 
 Kirkham v. Boston, 
 
 SBCTIOir 
 
 Knapp t). Mills, 421 
 
 Knight V. Barber, 550 
 
 Knight V. Bean, 620 
 
 Knight V. Crockford, 166 
 Knight V. New England Worsted 
 
 Co., ^ 576 
 
 Knight V. Priest, 476, 495 
 
 Knobb V. Lindsay, 409 
 
 Knotts V. Stearns, 263 
 Knowlman v. Bluett, 503, 537, 540 
 
 Knox V. Artman, 672 
 
 Kock V. Emmerling, 321 
 Koehler v. Black Eiver Falls Iron 
 
 Co., 315 
 
 Kohler v. Montgomery, 747 
 
 Kohler v. Wells, 247 
 
 Kohn V. The Eenaisance, 728 
 
 Kountz V. Price, 484 
 
 Kramer v. Arthurs, 569 
 
 Kribben v. Haycraft, 492 
 
 Kuhl V. Jersey City, 127 
 
 Kumler v. Eerguson, 65 
 
 Kutzmeyer v. Bnnis, 522 
 
 Kymar v. Suwercropp, 362 
 
 Lackey v. Stouder, 
 
 96 
 
 Lacy V. Wilson, 
 
 127 
 
 Ladd V. Kenney, 
 
 449 
 
 Ladd V. Rogers, 
 
 484 
 
 Lafferty v. Jelley, 
 
 355, 673 
 
 Lagrave v. Eowler, 
 
 657 
 
 Laidla v. Loveless, 
 
 192 
 
 Laidlaw v. Organ, 
 
 219 
 
 Laird v. Hodges, 
 
 737 
 
 Lake v. Morris, 
 
 547 
 
 Lakeman v. Mountstephep, 
 
 519 
 
 Lakeman v. Pollard, 
 
 623 
 
 Lamb v. Camden, etc.. Railway, 597 
 Lamb v. Crafts, 551 
 
 Lambden v. Sharp, 399 
 
 Lambe v. Reaston, 580 
 
 Lamothe v. St. Louis Marine Rail- 
 way and Dock Co., 385 
 Lampleigh v. Brathwait, 443 
 Lampton v. Taylor, 467 
 Lancaster National Bank v. Moore, 85 
 
INDEX TO CASES CITED. 
 
 Section 
 Landauer v. Cochran, 204 
 Lane i>. Kasey, 584 
 Lane v. Latimer, 203 
 Lang V. Gale, 748, 749 
 Lang V, Henry, 68 
 Lang V. Johnson, 407 
 Lang V. Mackenzie, 448 
 Lang V. Whidden, 295 
 Langan v. Hewett, 393 
 Langdon v. Paul, 639 
 Langford v. Cununings, 645 
 Langfort v. Tiler, 655 
 Langston v. South Carolina Bail- 
 road, 700 
 Lanier v. "Wyman, 236 
 Lanning v. Carpenter, 236 
 Lansdale v. Shackelford, 379 
 Lansing v. Gaine, 760 
 Larkin v. Buck, 681 
 Laterade v. Kaiser, 247 
 Laubenheimer v. Mann, 479 
 Lauer v. Lee, 667 
 Law V. Cross, 711 
 Law V. Grant, 710 
 LawaU ». Kader, 34, 643 
 Lawrence v. Dale, 204 
 Lawrence v. Davey, 657, 663 
 Lawrence vrHole, 87, 662 
 Lawton v. Buckingham, 65 
 Lawton v. Gordon, 671 
 Lawton v. State, 684 
 Layton v. Pearce, 751 
 Lazell V. Miller, 145 
 Lea V. Bringier, 332 
 Lea V. Whitaker, 753, 764 
 Leach v. Beardslee, 572 
 Leach v. Keach, 428 
 Leach v. Marsh, 85 
 Leach v. Micklem, 578 
 Leach v. Tilton, 426 
 Leaird v. Smith, 697 
 Leake v. Burgess, 705 
 Leakey v. Gunter, 112 
 Leather Cloth Co. «. Lorsont, 478 
 Leavitt v. Peck, 393 
 Leazure v. Hillegas, 310 
 
 Section 
 Lebanon v. Heath, ' 669 
 
 Ledford v. Perrell, 634 
 
 Lee V. Kilburn, 572 
 Lee V. Lancashire, etc., Kailway, 413 
 
 Lee V. Lee, 76 
 
 Lee V. Mahoney, 513 
 
 Lee V. Muggeridge, 453 
 
 Lee «. Onstott, 3G9 
 
 Lee V. Selleck, 730 
 
 Leeper v. Hersman, 128 
 
 Lees V. Whitcomb, 429 
 
 Leffingwell v. White, 748 
 
 Legrand v. Sidney College, 315 
 
 Lehman v. Shackleford, 245 
 
 Leicester v. Eehoboth, 134 
 
 Lemayne v. Stanley, 166 
 
 Lent V. Padelford, 512 
 
 Leonard v. Carter, 681 
 
 Le Page v. McOrea, 415 
 
 Lepard v. Vernon, 342 
 
 Leroux v. Brown, 506 
 
 Lerow v. Wilmarth, 448 
 
 Le Eoy v. Beard, 738 
 
 Le Eoy u. Crowninshield, 734 
 
 Lessley v. Phipps, 737 
 
 Lester v. Garland, 749 
 
 Lester v. Graham, 97 
 
 Lester v. Palmer, 425 
 
 Leuckart v. Cooper, 571 
 
 Levet V. Creditors, 140 
 Levy V. Levy, 721, 730 
 
 Levy V. "Wilson, 818 
 
 Lewis V. Baird, 289 
 
 Lewis V. Bingham, 653 
 
 Lewis V. Bourbon, 382 
 
 Lewis V. Headley, 724 
 
 Lewis V. Kerr, 841 
 
 Lewis V. Lewis, 706 
 
 Lewis V. Ludwick, 614 
 
 Lewis V. Owen, 736 
 Lewis V. Payn, 639, 640 
 
 Lewis V. State, 386 
 Liddell v. Sims, 689, 752 
 
 Lightfoot V. Heron, 301 
 
 Lightly V. Clouston, 82 
 
 Lilly V. "Waggoner, 286 
 361 
 
INDEX TO CASES CITED. 
 
 Section 
 Lincoln v. Buckmaster, 293 
 Lindauer v. Delaware Ins. Co., 567 
 Lindsley v. Malone, 711 
 Line v. Nelson, 412 
 Lines v. Smith, 524 
 Liness v. Hesing, 140 
 Linker v. Long, 671 
 Linsley v. Lovely, 382 
 Linton v. Porter, 96 
 Lipscombe v. Holmes, 127 
 Litchfield v. Hutchinson, 219 
 Littell V. Nichols, 700 
 Little V. Dawson, 76 
 Little V. Gibhs, 706 
 Little V. Hazzard, 399 
 Little V. Hobbs, 415 
 Little V. Wilson, 542 
 Littlefield v. Smith, 563 
 Liver Alkali Co. v. J6hnson, 322 
 Liverpool Ins. Co. v. Massachu- 
 setts, 740 
 Livingston, In re 285 
 Livingston v. Cox, 569 
 Livingston v. Roosevelt, 393 
 Livingstone v. Kogers, 431 
 Llanelly Railway, etc., v. London, 
 
 etc.. Railway, 65 
 
 Lloyd V. Harden, 422 
 Lloyd V. Bennett, 762, 763 
 
 Lloyd V. Johnson, 496 
 
 Lobdell V. Baker, 98 
 
 Lobdell V. Hopkins, 699 
 
 Locke V. Alexander, 353 
 
 Locke u. Steams, 387 
 
 Lockwood V. Barnes, 537 
 
 Lockwood V. Gilson, 515 
 
 Loeschigk v. Bridge, 713 
 
 Logan V. Mathews, 425 
 
 Logan V. Plummer, 24 
 
 Lomax v. Bailey, 681 
 
 Lomis V. Ruetter, 626 
 
 Long V. Davis, 65 
 Long V. Hartwell, 330, 377, 688 
 
 Long V. Hicklngbottom, 96 
 
 Long V. Towl, 425 
 Long Island Ferry v. Terbell, 656 
 362 
 
 SECTION 
 
 Longnor, Bex v. 168, 169 
 
 Longworth v. Conwell, 385 
 
 Lonsdale v. Brown, 421 
 
 Loomis V. Newhall, 438, 442 
 
 Loomis V. Ruck, 240 
 
 Loomis V. Simpson, 350 
 
 Lord V. Chadbourne, 458 
 
 Lord, Reg. v. 269 
 
 Lord V. Thomas, 629 
 
 Loring v. Boston, 177, 182 
 Loudon Savings Fund Society o. 
 
 Hagerstown Savings Bank, 392 
 
 Louisville Bank v. Toung, 647 
 
 Love V. Cobb, 534, 564 
 
 Love V. Sierra Nevada Lake 
 
 Water, etc., Co., 
 
 
 353 
 
 Love V. Wells, 
 
 
 483 
 
 Lovering v. Lovering, 
 
 592 
 
 690 
 
 Low V. Forbes, ' 
 
 
 36 
 
 Low V. Hallett, 
 
 
 733 
 
 Low V. Howard, 
 
 
 449 
 
 Lowe V. Bryant, 
 
 
 407 
 
 Lowe V. Gist, 
 
 
 272 
 
 Lowe V. Sinklear, 
 
 272 
 
 276 
 
 Lower v. Winters, 
 
 
 635 
 
 Lowery v. Drew, 
 
 
 399 
 
 Lowry v. Pinson, 
 
 
 713 
 
 Lowry v. Bead, 
 
 
 570 
 
 Loyd V. Malone, 
 
 
 481 
 
 Lozear v. Shields, 
 
 289 
 
 ,290 
 
 Lubbering v. Kohlbrecher, 
 
 
 637 
 
 Lucas V. Chamberlain, 
 
 
 528 
 
 Lucas V. Darien Bank, 
 
 
 400 
 
 Lucas V. James, 
 
 
 165 
 
 Lucas V. Mitchell, 
 
 
 506 
 
 Luce V. Dorchester Mutual Fire 
 
 Ins. Co., 
 
 
 672 
 
 Ludlow V. Cooper, 
 
 
 569 
 
 Ludlow V. Gill, 
 
 
 713 
 
 Ludwig V. Fuller, 
 
 43£ 
 
 ,547 
 
 Luellen v. Hare, 
 
 
 373 
 
 Luey V. Bundy, 
 
 
 676 
 
 Lumpkin v. Johnson, 
 
 
 530 
 
 Lumpkin v. Wilson, 
 
 
 347 
 
 Lumsden's Case, 
 
 
 270 
 
 Lunday v. Thomas, 
 
 
 386 
 
INDEX TO CASES CITED. 
 
 Section 
 
 Luscomb V. Ballard, 616 
 
 Luske V. Hotchkiss, 655 
 Lyman v. Norwich University, 711 
 Lyman v. United States Ins. Co., 236 
 
 Lynch v. Hartwell, 310 
 
 Lyoni). Clark, 759 
 
 Lyon V. King, 539 
 
 Lyon V. "Williams, 858 
 
 McAdams v. Cates, 218 
 
 MoAlister v. Howell, 478 
 
 McAllister v. Smith, 727 
 
 McAvoy V. Long, 590 
 
 McBean v. Morrison,' 357 
 
 Macbeath v. Haldimand, 366 
 
 McBride v. Eagan, 401 
 
 McCabe v. Hunter, 560 
 
 McCaleb v. Pradat, 585 
 
 McCall V. Clayton, 358 
 
 MeCalop v. Hereford, 486 
 McCampbell v. McCampbell, 506 
 
 McCandlish v. Cruger, 724 
 
 McCarren v. McNulty, 698 
 
 McCartney v. Shepard, 467 
 
 MoCarty v. Blevins, 420 
 
 McCarty v. Van Dalfsen, 251 
 
 McCelvy v. Noble, 524 
 
 McClees v. Burt, 738 
 
 McClellan v. Parker, 357 
 
 McClintick t!. Cummins, 244 
 
 McClosky V. Cyphert, 263 
 
 MoClung V. Kelley, 647 
 
 McClurg's Appeal, 479 
 
 McComb V. "Wright, 857 
 
 Macomber v. Parker, 672 
 
 McCombs V. McKennan, 657 
 
 McConnell v. Bowdry, 375 
 
 McConnell v. Brillhart, 613 
 McCord V. "West Feliciana Eail- 
 
 road, 657 
 
 McCormick v. Malin, 409 
 
 McCown V. "Wheeler, 371 
 
 McCoy V. Huffman, 265 
 McCoy V. Moss, 435, 547 
 McCraoken v. San Francisco, 707 
 
 MoOrary v. Ashbaugh, 818 
 
 Section 
 McCrea v. Purmort, 512 
 McCrelish v. Churchman, 589 
 McCue V. Smith, 502 
 McCuUough V. Moss, 311 
 McCuUough V. Somerville, 399, 400 
 McCullough V. Talladega Ins. Co., 132 
 McCuUough V. Wainright, 581 
 McCurdy v. Koger, 182 
 McCutohen v. McCutchen, 435 
 McDaniel v. Parks, 683 
 McDonald v. Black, 340 
 McDonald v. Eggleston, 399 . 
 McDonald v. Gray, 700 
 McDonald o. Mountain Lake "Wa- 
 ter Co., 667 
 McDonald v. Peacemaker, 81 
 McDonald v. Todd, 81 
 McDonald v. Trafton, 223 
 McDonald v. "Williams, 690 
 McDowel V. Chambers, 165 
 McDugald V. McFadgin, 647 
 McElhanon v. McElhanon, 253 
 McEwen v. Troost, 435 
 McFadden v. O'Donnell, 646 
 McFaddin v. Vincent, 285, 291 
 McGavocku. Puryear, 496 
 McGavock v. "Woodlief, 321 
 McGloin V. Vanderlip, 516 
 McGlucky v. Bitter, 503 
 McGlynn v. Moore, 656 
 McGoweii v. Bush, 495 
 McGrann v. North Lebanon Bail- 
 road, 36 
 McGregor v. Brown, 533 
 McGregor v. Cleveland, 397 
 MacGregor ». Gardner, 338 
 McGriff w. Porter, 842 
 MoGuire v. Kamsey, 112 
 McGuire v. Stevens, 513 
 Machias Hotel v. Coyle, 360 
 Mclntyre v. Park, 168, 653, 707 
 Mackay v. Bloodgood, 828, 399 
 Mackbee v. Griffith, 496 
 McKee v. Miller, 695 
 McKensie v. Farrell, 66 
 McKenzie v. Culbreth, 412, 414, 416 
 363 
 
INDEX TO CASES CITBD. 
 
 Section 
 McKewan v. Sanderson, 480 
 Mackey v. Proctor, 273 
 McKildoe v. Darracott, 656 
 Mackinley v. McGregor, 221 
 McKinley v. "Watkins, 178 
 McKinney v. Miller, 29 
 McKinney v. Khoads, 763 
 McKissick v. McKissick, 787 
 McKnight V. Dunlop, 554 
 MoKnight v. Kellett, 214 
 McLaughlin v. Piatti, 547 
 McLauren v. Graham, 468 
 McLure v. Colclough, 762 
 McMahan v. Bowe, 477 
 McMahon v. Eauhr, 253 
 McMasters v. Pennsylvania Bail- 
 road, 672 
 McMasters v. Keed, 307, 316 
 McMechen «. Baltimore, 322 
 McMicken v. Perin, 477 
 McMillan v. Vischer, 247 
 McMinn v. Phipps, 481 
 McMuUen v. Gable, 409 
 McMulIen v. Eiley, 532 
 McMurtry v. Prank, 327 
 MoNaughter v. Cassally, 657 
 McNitt V. Clark 751 
 McNutt V. McMahan, 369 
 MoPherson v. Meek, 760 
 MoTaggart v. Rose, 554 
 Maotieri;. Frith, 182 
 McVpy V. Wheeler, 14 
 McWilliams v. Willis, 357 
 Madison v. Shockley, 434 
 Madison Ins. Co. v. Forsyth, 458 
 Madison, etc.. Plank Boad v. Wa- 
 
 tertown, etc., Plank Boad, 307 
 
 Maddox v. Simmons, 292 
 Maddux v. Bevan, 415, 711 
 
 Magee v. Lavell, 754 
 
 Magee v. Welsh, 273 
 
 Magoffin V. Holt, 752 
 
 Maguire v. Pingree, 724 
 
 Maguire v. Smock, 492 
 
 Major V. Hanson, 639 
 
 Majors v. Hickman, 695 
 364 
 
 Sbction 
 
 Majors v. Bice, 130 
 
 Makepeace v. Harvard College, 577 
 
 Malin v. Malin, 112, 639 
 
 Malins v. Brown, 505 
 
 Mallet V. Bateman,- 519 
 
 Mallett'-». Page, 762 
 
 Mallory v. Gillett, 49 
 
 Malone v. Plato, 554 
 
 Manahan v. Noyes, 203, 204 
 
 Manchester v. Bums, 145 
 
 Mann v. Stowell, 205 
 
 Manning v. Gill, 152, 155 
 
 Manning v. Johnson, 267 
 
 Manning, People v. 630 
 
 Manser's Case, 169 
 
 Mansfield v. Trigg, 675 
 
 Mansfield v. Watson, 303 
 Mansfield, etc., Bailroad v. Vee- 
 
 der, 590 
 Many v. Beekman Iron Co., 358 
 Maples V. Wightman, 117, 270, 272 
 Marcy v. Crawford, 523 
 Marcy v. Marcy, 545 
 Mariner v. Collins, 77 
 Mariposa Co. v. Bowman, 247 
 Markham v. Gonaston, 653 
 Marksbury v. Taylor, 140 
 Marquat v. Marquat, 604 
 Marsh ». Puller, 434 
 Marsh v. Gold, 467 
 Marsh v. Hyde, 554 
 Marsh c. Lisle, 65 
 Marsh v. Wykoff, 148 
 Marshall v. Baltimore, etc.. Bail- 
 road, 492 
 Marshall v. Craig, 695 
 Marshall v. Ferguson, 699 
 Marshall v. Fislc, 682 
 Marshall v. Hann, 167 
 Marshall v. Morehouse, 647 
 Marshall v. Morris, 527 
 Marston v. Wilcox, 63 
 Martin v. Amos, 477 
 Martin v. Bartow Iron Works, 460 
 Martin v. Black, 182, 524 
 Martin v. Clarke, 477 
 
INDEX TO CASES CITED. 
 
 Section 
 
 Martin v. Eames, 680 
 
 Martin v. Flowers, 353 
 
 Martin v. Hunt, 620 
 
 Martin v. Long, 587 
 Martin v. Martin ^85 Ala. 560), 212 
 Martin v. Martin (1 Sm. &M. 176), 726 
 
 Martin v. Moulton, 336 
 
 Martin v. Quinn, 706 
 
 Martin v. Eanlett, 481 
 
 Martin v. Wade, 489 
 
 Martin v. Weyman, 530 
 
 Maryland v. Railroad, 576 
 
 Marziou v. Poiohe, 339 
 
 Marvin v. Bennett, 235 
 
 Marvin B. Lewis, 296 
 
 Mason v. ChappeU, 97 
 
 Mason v. Mason, 535 
 
 Mason v. Watkins, 471 
 
 Massey v. Piles, 400 
 
 Massing i>. State, 493 
 
 Massure v. Noble, 135 
 
 Masters. Miller, 634 
 
 Masters v. Freeman, 676 
 
 Mathews v. Dragaud, 251 
 
 Mathison v. Hanks, 474 
 
 Mathuson v. Crawford, 737 
 
 Matson v. Booth, 653 
 
 Matson v. "Wharam, 520 
 Matthews v. Baxter, 157, 161, 296, 304 
 
 Matthews v. Milton, 520 
 
 Matthews v. Skinner, 307 
 
 Matthews v. Smith, 433 
 
 Matthewson v. Lydiate, 667 
 Matthiessen & "Weichers Beflning 
 
 Co. V. McMahon, 85 
 
 Mattocks V. Owen, 473 
 
 Maupiu V. Pic, 90 
 
 Mauran, People v. 308 
 
 Maurer v. Mitchell, 445 
 
 Maus V. "Worthing, 327 
 Maxwell v. Campbell, 476, 495 
 Maxwell v. Griswold, 145, 247 
 
 Maxwell v. Haynes, 522 
 
 May V. Baskin, 534 
 
 May V. Magee, 390 
 
 Kaybin v. Coulon, 453 
 
 Section 
 Mayhew v. Phoenix Ins. Co., 246 
 
 Mayhew v. Prince, 357 
 
 Maloy, Commonwealth v. 570 
 
 Maynard v. Fellows, 897 
 
 Mays V. Williams, 463 
 
 Meach v. Stone, 505 
 
 Mead v. Bunn, 219 
 
 Mead v. Keyes, 521 
 
 Mead v. Westchester Fire Ins. 
 
 Co., 236 
 
 Meade v. Beale, 258 
 
 Meadow v. Bird, 492 
 
 Meadows v. Smith, 242, 358 
 
 Means v. Feaster, 713 
 
 Means v. Presbyterian Church, 575 
 Mears v. Bickford, 263 
 
 Mears v. Waples, 572 
 
 Mease v. Wagner, 519 
 
 Mechanics', etc., Bank v. Wixson, 421 
 Mecum v. Peoria, etc.. Railroad, 589 
 Medlin.T). Platte, 637 
 
 Melbourn, Ex parte 719 
 
 Mellen v. Whipple, 119 
 
 Menderback v. Hopkins, 706 
 
 Menkins v. Lightner, 287' 
 
 Menzel ». Railway, 597 
 
 Mercer Mining and Manuf. Co. v. 
 
 McKee, 127 
 
 Merchants' Bank v. Spalding, 728 
 Merchants' Savings, etc., Co. i>. 
 
 Goodrich, 489 
 
 Meredith v. Reed, 631 
 
 Meredith v. Salmon, ^ 58 
 
 Meriden Britannia Co. v. Zingsen, 521 
 Meriwether v. Smith, 484 
 
 Merriam v. Cunningham, 378 
 
 Merriam v. Stearns, 483 
 
 Merriam v. Wolcott, 98 
 
 Merrick's Estate, 360, 362 
 
 Merrick v. Bank of the Metropo- 
 lis, 445, 459 
 Merrick v. Burlington, etc.. Plank 
 
 Road, 316 
 
 Merrill v. Bank of Norfolk, 362 
 
 Merrill v. Bell, 630 
 
 Merrill v. Emery, 630 
 
 365 
 
INDEX TO CASES CITED. 
 
 
 Section 
 
 Merrill v. Melchior, 
 
 583 
 
 Merrill v. Prince, 
 
 U 
 
 Merrill v. "Wilson, 
 
 357 
 
 Merrills v. Swift, 
 
 ,763 
 
 Merriman v. Lacefield, 
 
 409 
 
 Merritt v. Cotton States Life Ins. 
 
 Co., 663 
 
 Merritt v. Earle, 483 
 
 Merritt v. Gumaer, 285, 296 
 
 Merwin v. Huntington, 140 
 
 Messier v. Amery, ' 355 
 
 Metcalf V. Taylor, 579 
 Methodist Episcopal Church 1). 
 
 Hotoken, 258 
 
 Moyer v. Barker, 357 
 
 Meyer v. Yesser, 215 
 
 Mhoon V. Drizzle, 532 
 
 Michael v. Bacon, 496 
 Michigan Central Bailroad v. 
 
 Cougar, 348 
 Michigan Ins. Co. v. Leavenworth, 340 
 
 Michoud V. Girod, 251 
 
 Milbourn v. Simpson, 400, 582 
 
 Mildmay's Case, 27 
 
 Miles V. Eoberts, 645 
 
 Millard v. Hathaway, 564 
 
 Millard 1). Hewlett, 276 
 
 Miller v. Craig, 290 
 
 Miller v. Fletcher, 765 
 
 Miller v. Goddard, 683 
 
 Millers. Goodwin, 527 
 
 Miller v. Hemphill, 32 
 
 Miller v. Howell, 222 
 
 Miller v. Lynch, 434 
 
 Miller v. McClain, 699 
 
 Miller v. Miller, 243, 246 
 
 Miller v. Moore, 384 
 Miller v. Mutual Benefit Ins. Co., 223 
 Miller v. Phillips, 619, 676, 677 
 
 Miller ». Sacramento, 708 
 
 Miller v. Springer, 128 
 
 Miller v. Tiffany, 726 
 
 Millison v. Nicholson, 285 
 
 Mills V. Brown, 623 
 
 Mills V. Graves, I34 
 
 Mills V. Mills, 492 
 366 
 
 Sectiom 
 667 
 442 
 463 
 458 
 400 
 210 
 506 
 383 
 322 
 428 
 97 
 478 
 763 
 97 
 295 
 218 
 563 
 24 
 458 
 327 
 656 
 114 
 357 
 651 
 630 
 
 Mobile Marine, etc., Co. v. Mc- 
 Millan, 62 
 Modisett v. Lindley, 899 
 Moffat V. Van Millingen, 7 
 Moffat V. "Winslow, 206 
 Moffatt V. Van MuUingen, 253 
 Moir V. Hopkins, 386 
 MoUett V. Wackerbarth, 639 
 Molton V. Camroux, 294 
 Molyneux v. Collier, 420 
 Monroe v. Searcey, 498 
 Monson v. Williams, 120 
 Montague v. Garnett, 504, 545 
 Monte AUegre, The 96 
 Montgomery ». Lampton, 451, 453 
 Montgomery v. Morris, 647 
 Montgomery Railroad v. Hurstj 639 
 Montville v. Haughton, 236 
 Moody V. Leavitt, > 84 
 Moody, State v. 44 
 Moore's Case, 2O8 
 
 Mills V. Riley, 
 Mills V. Wyman, 
 Milne v. Huber, 
 Milton V. Haden, 
 Milton V. Mosher, 
 Miner v. Medbury, 
 Minns v. Morse, 
 Minor v. Mechanics' Bank, 
 Minturn v. Main, 
 Missisquoi Bank v. Sabin, 
 Missroon v. Freeman, 
 Mitchel B. Reynolds, 
 Mitchell V. Byrne, 
 Mitchell V. Dubose, 
 Mitchell V. Kingman, 
 Mitchell V. McDougall, 
 Mitchell V. Mitchell, 
 Mitchell V. Reynolds, 
 Mitchell V. Smith, 
 Mitchell V. Sproul, 
 Mitchell V. Steward, 
 Mitchinson v. Carter, 
 Mithoff V. Byrne, 
 Mixer v. Howarth, 
 Mizell V. Burnett, 
 
INDEX TO CASES CITED. 
 
 
 Section 
 
 Moore v. Abemathy, 
 
 272 
 
 277 
 
 Moore v. Bare, 
 
 
 679 
 
 Moore v. Campbell, 
 
 
 650 
 
 Moore v. Clay, 
 
 
 210 
 
 Moore v. Clopton, 
 
 
 727 
 
 Moore v. Fox, 
 
 
 637 
 
 Moore v. GriflSn, 
 
 
 593 
 
 Moore v, Hylton, 
 
 
 412 
 
 Moore v. McKinlay, 
 
 
 97 
 
 Moore v. Moore, 
 
 
 562 
 
 Moore v. Murdoch, 
 
 
 483 
 
 Moore v. Platte, 
 
 
 754 
 
 Moore v. Bead, 
 
 
 655 
 
 Moore v. Shenk, 
 
 
 667 
 
 Moore v. Thompson, 
 
 
 376 
 
 Moore v. Waddle, 
 
 
 563 
 
 Morange v. Edvrarda, 
 
 
 563 
 
 More V. Bonnet, 
 
 60, 471 
 
 479 
 
 Moreland v. Atchison, 
 
 212 
 
 ,219 
 
 Moreland v. Davidson, 
 
 
 75 
 
 Morey v. Bnke, 
 
 
 699 
 
 Morey v. Homan, 
 
 
 578 
 
 Morgan v. Bain, 
 
 
 677 
 
 Morgan v. Elam, 
 
 
 671 
 
 Morgan v. Steams, 
 
 
 663 
 
 Morioe v. Leigh, 
 
 
 765 
 
 Morin v. Martz, 
 
 
 512 
 
 Morrell v. Quarles, 
 
 411 
 
 498 
 
 Morrell v. "Wright, 
 
 
 145 
 
 Morrill v. Tehama Consolidated 
 
 Mill, etc.,' Co., 170 
 
 Morris v. Clay, 295 
 
 Morris v. Hall, 140 
 
 Morris v. Harris, 101 
 
 Morris v. Jones, 399 
 
 Morris v. Nixon, 301 
 Morris Canal, etc., Co. v. Byerson, 65 
 Morris Bun Coal Co. v. Barclay 
 
 Coal Co., 727 
 
 Morrison v. Bowman, 353 
 
 Morrison v. Welty, 638 
 
 Morrow v. Campbell, 619 
 
 Morrow v. Higgins, 377 
 
 Morse v. Bellows, 401 
 
 Morse v. Low, 68^ 434 
 
 Morse v. Shattuck, 66 
 
 Section 
 
 Morse Twist Drill, etc., Co. v. 
 
 Morse, 479 
 
 Morss V. Salisbury, 677 
 
 Mortlock V. BuUer, 330 
 
 Morton v. Scull, 387 
 
 Mosly V. Baker, 613 
 
 Moses V. Mead, 97 
 
 Moss V. Averell, 308, 311 
 
 Moss i;. Oakley, 311 
 
 Mostyn v. Fabrigas, 137 
 
 Mott V. Coddington, 733 
 
 Mott V. Hurd, 535 
 
 Moulton V. McOwen, 660 
 
 Moulton V. Trask, 683 
 
 Mount Olivet Cemetery v. Shu- 
 
 bert, 383 
 
 Mountacue v. Maxwell, 527 
 
 Mountford v. Scott, 318 
 
 Mouse's Case, 612 
 
 Mouton t). Noble, 66 
 
 Mowatt V. Wright, 144 
 
 Mower v. Kip, 759 
 
 Moxley v. Moxley, 179 
 
 Moye V. Herndon, 639 
 
 Mud Creek Draining Co. v. State, 132 
 
 Mulligan v. Bailey, 217 
 
 Mullins V. MoCandless, 227 
 
 Munn V. Burch,' 570, 572 
 
 Munn V. Commission Co., 385 
 
 Munroe v. Easton, 706 
 
 Munroe v. Perkins, 647 
 
 Munson v. Nichols, 195 
 
 Murdock v. Anderson, 613 
 
 Murphy v. Jones, 155, 425 
 
 Murphy v. Mobile Branch Bank, 65 
 
 Murray, In re 720 
 
 Murray v. Blackledge, 581 
 
 Murray v. Palmer, 409 
 
 Murray v. Shanklin, 276 
 
 Musselman v. Cravens, 257, 289, 292 
 
 Musser v. Ferguson, 453 
 
 Mussey v. Scott, 353 
 
 Mustard v. Wohlford, 272 
 
 Myers v. Meinrath, 140 
 
 Myers v. Morse, 623 
 
 Myers v. Sanders, 277 
 367 
 
INDEX TO CASES CITED. 
 
 
 Section 
 
 Naill V. Maurer, 
 
 527 
 
 Napier v. Catron, 
 
 399 
 
 Nash V. Lull, 
 
 409 
 
 Nash V. Towne, 
 
 680 
 
 Nashua Fire Ins. Co. v. Moore, 132 
 Nason v. Grant, 671 
 
 Natchez v. Miner, 667 
 
 National Bank of Metropolis v. 
 
 Sprague, 481 
 
 National Iron Armor Co. u. Bru- 
 
 ner, 380 
 
 National Life Ins. Co. v. Minch, 385, 
 
 389 
 Nations v. Cudd, 683 
 
 Neal V. Gilmore, 420 
 
 Neal V. Sheaffieia, 32 
 
 Nealley v. Greenough, 242 
 
 Nebeker v. Cutsinger, 195 
 
 Neelyu. Anderson, 225, 291 
 
 Nerot t>. Wallace, 611 
 
 Neshitt V. McGehee, 671 
 
 Neshitt V. Pearson, 751 
 
 Nettles V. South Carolina Kail- 
 road, 605 
 Nettleton v. Billings, 691 
 Nettleton v. Sikes, 533 
 Nevitt V. Bank of Port Gibson, 226 
 Nevius V. Dunlap, 236 
 New Jersey Steam Navigation 
 
 Co. V. Merchants' Bank, 360 
 
 New Orleans v. Church of St. 
 
 Louis, 682 
 
 New Orleans, etc., Eailroad u. 
 
 Moye, 534 
 
 New York v. Dawson, 733 
 
 New York Central Ins. Co. v. 
 
 National Protection Ins. Co., 837 
 Newbury Bank v. Stegall, 471 
 
 Newcorab v. Brackett, 694 
 
 Newcombe v. Beloe, 256 
 
 Newell V. Hill, 119 
 
 Newell V. Horn, 209, 219 
 
 Newell V. March, 433 
 
 Newhall v. Paige, 409 
 
 Newman v. Morris, 551 
 
 Newnan v. Carroll, 534, 564 
 
 368 
 
 Sectiok 
 
 Newsom v. Thighen, 493 
 
 Newton v. Jackson, 65 
 
 Newton v. Pope, 681 
 
 Newton v. Swazey, 842 
 
 Newton v. Wales, 699 
 
 Nibbe v. Brauhn, 657 
 
 Niblett V. Herring, 698 
 
 Nichols V. Bunting, 477 
 
 Nichols V. Johnson, 637, 639 
 
 Nichols V. Marsland, 612, 613 
 
 Nichols V. Pinner, 221 
 
 Nichols V. Weaver, 538 
 
 Nickerson v. Babcock, 702 
 
 Nickerson v. Saunders, 535 
 
 Niell V. Morley, 291 
 Nightingale v. Withington, 117, 275, 
 
 277 
 
 Nixon V. Hyserott, 376 
 
 Noble V. Edwards, 688 
 
 Noble «- James, 698 
 
 Noble V. Noble, 712 
 
 Noble V. Ward, 650 
 
 Nobles V. Bates, 479 
 
 Nones v. Homer, 642 
 
 North V. Bloss, 145 
 
 North t>. Forest, 550 
 
 North V. Nichols, 90 
 Northumberland u. Errington, 577 
 
 Norton v. Colby, 447 
 
 Norton v. Sterling, 743 
 
 Nott V. Johnson, 428 
 
 Nourse v. Pope, 468 
 
 Noyes v. Humphreys, 621 
 
 Noyes v. Nichols, 675 
 
 Nugent V. Hickey, 357 
 
 Nugent V. Riley, 119 
 
 Nunn V. Fabian, , 505 
 
 Nunnally v. White, 428 
 
 Nunnery v. Cotton, 639 
 
 Nutting V. Dickinson, 635 
 
 Nutting V. McCutcheon, 602 
 
 Oakes v. Turquand, 198, 203, 204, 217 
 
 Oatfield D. Waring, 444 
 
 O'Bannum v. Relf, 663 
 
 Obert V. Hammel, 24, 251 
 
INDEX TO CASES CITED. 
 
 
 Section 
 
 O'Brien v. Wetherell, 
 
 
 127 
 
 Occum Co. V. Sprague Manuf. Co. 
 
 810 
 
 O'Connor v. Dingley, 
 
 
 700 
 
 Odell V. Buck, 
 
 
 290 
 
 Oden V. Elliott, 
 
 
 706 
 
 Oden, State v. 
 
 
 763 
 
 Odineal v. Barry, 409 
 
 460 
 
 493 
 
 O'Donnell v. Leeman, 
 
 513, 
 
 750 
 
 Odwin V. Forbes, 
 
 
 736 
 
 Oelrichs v. Ford, 
 
 
 360 
 
 Ogden V. Maxwell, 
 
 
 247 
 
 Ogden V. Ogden, 
 
 628 
 
 529 
 
 Ogden V. Raymond, 
 
 
 858 
 
 Ogle V. Graham, 
 
 
 639 
 
 Ohio, etc., Eailway v. Tohe, 
 
 
 629 
 
 Olive V. Lewis, 
 
 
 519 
 
 Oliver v. Brown, 
 
 
 578 
 
 Oliver v. Houdlet, 
 
 272 
 
 274 
 
 Oliver v. McClellan, 
 
 
 267 
 
 Olmstead v. Beale, 
 
 
 681 
 
 Olmstead v. Niles, 
 
 
 533 
 
 Omohundro v. Omohundro, 
 
 
 700 
 
 Onderdonk v. Lord, 
 
 
 534 
 
 O'Eear v. Kiger, 
 
 
 489 
 
 Orr V. "Williams, 
 
 
 699 
 
 Orvis V. Eimball, 
 
 
 276 
 
 Osbaldeston v. Simpson, 
 
 
 473 
 
 Osborn v. Phelps, 
 
 503 
 
 ,505 
 
 Osbom V. Bobbins, 
 
 
 242 
 
 Osborne v. Tunis, 
 
 314 
 
 ,315 
 
 Osborne v. Farmers' Loan, 
 
 etc. 
 
 I 
 
 Co., 
 
 
 524 
 
 Osgood V. Franklin, 
 
 
 409 
 
 Osmond v. Fitzroy, 
 
 
 291 
 
 Osmond v. Flournoy, 
 
 
 733 
 
 Osterhout v. Shoemaker, 
 
 
 290 
 
 Oswald V. McGehee, 
 
 
 212 
 
 Ott V. Garland, 
 
 
 425 
 
 Outwater v. Dodge, 
 
 
 554 
 
 Owen V. Bartholomew, 
 
 
 134 
 
 Owen ». Brockschmidt, 
 
 
 348 
 
 Owen V. Estes, 
 
 
 634 
 
 Owen V. Long, 
 
 
 270 
 
 Owen V. Perry, 
 
 
 374 
 
 Owens V. CoUinson, 
 
 
 79 
 
 Owens V. Lewis, 
 
 
 633 
 
 Section 
 
 Owings's Case, 225, 285, 291 
 
 Owings V. Hull, 708 
 
 Owsley V. Woolhopter, , 711 
 
 Pacific Iron "Works v. Newhall, 62 
 
 Packet Co. v. Sickles, 537 
 
 Page V. Becker, 419 
 
 Page V. Sheffield, 61 
 
 Page V. Trufant, 23 
 
 Page V. "Weymouth, 749 
 
 Paige V. Fullerton "Woolen Co., 167 
 Palfrey v. Portland, etc., Eail- 
 
 road, 426 
 
 Palmer v. Green, 671 
 
 Palmer v. Respass, 353 
 
 Palmer v. Stephens, 166 
 
 Palmer v. Stockwell, 667 
 
 Palmer v. Tarrington, 727 
 
 Palmerton v. Huxford, 417. 
 
 Pannell v. Mill, 678 
 
 Parham v. Pulliam, 726 
 Paris V. Cobb, 286, 291 
 
 Paris V. Hiram, 747' 
 
 Paris V. Strong, 538 
 
 Park V. Glover, 639 
 
 Park Bank v. "Watson, ^01 
 
 Parke v. Leewright, 505 
 
 Parker v. Barker, 619 
 
 Parker v. Carter, 621 
 
 Parker v. Elder, 267 
 
 Parker v. Kane, 671 
 
 Parker v. Lincoln, 118 
 
 Parker v. Nichols, 27 
 
 Parker v. Eamsbottom, 82. 
 
 Parker v. Smith, 102 
 
 Parker "Vein Coal Co. v. O'Hern, 695 
 Parkhurst v. Gloucester Mutual 
 
 Fishing Ins. Co., 606 
 
 Parkhurst v. "Van OorUandt, 513 
 
 Parkin 1). Eadcliffe, 571' 
 
 Parmelee v. Thompson, 421 
 
 Parry v. Dale, 369 
 
 Parshall v. Shirts, 671 
 
 Parsons v. Dickinson, 547 
 
 Parsons v. Hill, 272 
 Parsons v. Keys, 86, 90 
 369 
 
INDEX TO CASES CITED. 
 
 Parsona u. Loucks, 
 
 Partee v. Silliman, 
 
 Partridge v. Havens, 
 
 Patch V. Phoenix, etc., Ins. Co., 
 
 Patch V. "Wheatland, 
 
 Patchin v- Cromaeh, 
 
 Patehin v. Swift, 
 
 Pate V. Wright, 
 
 Paterson v. Gandasequi, 
 
 Patrick v. Putnam, 
 
 Pattee v. G-reely, 
 
 Patterson v. Cox, 
 
 Patterson v. Cunningham, 
 
 Patterson v. Kirkland, 
 
 Patterson v. Underwood, 
 
 Pattinson v. Luckley, 
 
 Patton V. Ashley, 
 
 Patton V. Brittain, 
 
 Paul V. Edwards, 
 
 Pawlet V. Sandgate, 
 
 Paxton V. Popham, 
 
 Payler v. Homersham, 
 
 Payne v. Burnham, 
 
 Payne v. Eden, 
 
 Payne v. Mattox, 
 
 Paytie v. Smith, 
 
 Peabody v. Rice, 
 
 Peabody v. Tarbell, v 
 
 Peachy v. Somerset, 
 
 Peacock v. Monk, 
 
 Pearce v. Brooks, 
 
 Pearl v. Hansborough, 
 
 Pearl v. McDowell, 
 
 Pearson v. Chapin, 152, 155, 157, 158, 
 
 Pearson v. Lord, 
 Pearson v. Pearson, 
 Pearson v. Thomason, 
 Pease, Commonwealth v. 
 Peck V. Burr, 
 Peck V. Goodwin, 
 Peck V. Hubbard, 
 Peelman v. Peelman, 
 Pegram v. Williams, 
 Pellow, Ex parte 
 Pellow, In re 
 370 
 
 Section | 
 
 
 Section 
 
 49 
 
 551 
 
 Pemberton v. Staples, 
 
 213 
 
 733 
 
 737 
 
 Penn v. Bennet, 
 
 448 
 
 
 112 
 
 Penniman v. Pierson, 
 
 97 
 
 >•, 
 
 59 
 
 Pennington v. Gittinga, 
 
 27, 405 
 
 
 397 
 
 Pennsylvania Ins. Co. v. 
 
 Dovey, 370 
 
 
 44 
 
 Pepper, State v. 
 
 134 
 
 
 65 
 
 Pequawket Bridge v. 
 
 Mathes 
 
 
 484 
 
 (8 N. H. 139), 
 
 639 
 
 359 
 
 364 
 
 Pequawkett Bridge v. 
 
 Mathes 
 
 
 681 
 
 (7 N. H. 230), 
 
 168 
 
 
 483 
 
 Peques v. Mosby, 
 
 689 
 
 
 143 
 
 Peries v. Aycinena, 
 
 341 
 
 
 535 
 
 Perkins v. Clay, 
 
 478 
 
 
 219 
 
 Perkins v. Jones, 
 
 484 
 
 
 513 
 
 Perkins v. Jordan, 
 
 572 
 
 635 
 
 638 
 
 Perkins v. Ladd, 
 
 88 
 
 
 413 
 
 Perkins v. Littlefield, 
 
 523 
 
 
 379 
 
 Perkins v. Lyman, 
 
 479 
 
 
 350 
 
 Perkins v. Missouri, etc.. 
 
 Railroad, 711 
 
 
 120 
 
 Perley v. Balch, 
 
 203 
 
 
 24 
 
 Perley v. Spring, 
 
 523 
 
 413 
 
 577 
 
 Perrin v. Broadwell, 
 
 64 
 
 
 127 
 
 Perry v. Buckman, 
 
 427, 647 
 
 476, 
 
 495 
 
 Perry v. Clymore, 
 
 32 
 
 
 700 
 
 Perry v. Smith, 
 
 699 
 
 
 220 
 
 Perry «. Wheeler, 
 
 697 
 
 
 52 
 
 Perryman's Case, 
 
 766 
 
 
 112 
 
 Persch v.' Quiggle, 
 
 422 
 
 
 757 
 
 Peru V. French, 
 
 178 
 
 27 
 
 , 65 
 
 Petchell V. Hopkins, 
 
 743 
 
 418 
 
 ,496 
 
 Peter v. Wright, 
 
 224 
 
 
 727 
 
 Peters v. Westborough, 
 
 537 
 
 
 85 
 
 Petrie v. Wright, 
 
 816 
 
 157, 
 
 158, 
 
 Pettibone v. Koberta, 
 
 65,426 
 
 
 198 
 
 Phelps V. Bostwick, 
 
 585 
 
 
 145 
 
 Phelps V. Dolan, 
 
 52 
 
 
 434 
 
 Phelps V. Pond, 
 
 434 
 
 
 412 
 
 Phelps V. Quinn, 
 
 97 
 
 
 473 
 
 Phelps V. Seely, 
 
 37 
 
 
 458 
 
 Phelps V. Zuschlag, 
 
 242 
 
 
 766 
 
 Pheteplace v. Eastman, 
 
 81 
 
 
 699 
 
 Philadelphia Loan Co. v 
 
 . Towner, 721 
 
 
 647 
 
 Philbrook v. Belknap, 
 
 503, 506 
 
 
 743 
 
 Philleo V. Sanford, 
 
 605 
 
 
 44 
 
 Phillips V. Allan, 
 
 736 
 
 
 44 
 
 Phillips V. BistoUi, 
 
 193 
 
INDEX TO CASES CITED. 
 
 Section 
 
 Phillips B. Coffee, 815 
 
 PhUlips V. Eyre, 736 
 
 Phillips V. Green, 276 
 
 Phillips V. Hollister, 236 
 
 Phillips V. Im Thurn, 127 
 
 Phillips V. Porter, 680 
 
 Phillips V. Preston, 61, 428 
 
 Phillips V. Thompson, 534 
 
 Phillips Academy v. King, 310 
 
 Philpot V. Gruninger, 403, 419 
 
 Phinney v. Baldwin, 723 
 
 Phipps V. McParlane, 551 
 Phoenix Bessemer Steel Co., In re 677 
 Phosphate of Lime Co. -a. Green, 708 
 
 Pickering v. Busk, 383 
 
 Pickett V. Sutter, 301 
 
 Pierce v. Chapman, 647 
 
 Pierce v. Duncan, 676 
 
 Pierce v. Puller, 479 
 
 Pierce v. Gibson, 656 
 
 Pierce v. Hakes, 168 
 
 Pierce v. Johnson, 357 
 
 Pierce o. Kittredge, 53 
 
 Pierce ». Paine, 603 
 
 Pierce u. Bichardson, 19 
 
 Pierce v. "Woodward, 478 
 
 Pierce v. Wright, 29 
 
 Piersol v. Grimes, 637 
 
 Pierson v. Hooker, 399, 401 
 
 Pike V. Bacon, 899 
 
 Pike V. Balch, 334 
 
 Pike V. King, 483 
 
 Pillow V. Brown, 59 
 
 Pinckard v. Pinckard, 506 
 
 Pinney v. Thompson, 62 
 
 Pintard ». Bodle, 763 
 Pitcher v. Hennessey, 233, 236, 237 
 
 Pitcher v. Wilson, 542 
 
 Pitman v. Poor, 534 
 
 Pitt V. Gentle, 420 
 
 Pitt V. Smith, 300 
 Pittsburgh, etc.. Railroad v. Gaz- 
 
 zam, 708 
 
 Pixler ». Nichols, 681 
 
 Planters' Bank v. Cameron, 885 
 
 Piatt ». Brown, 27 
 
 
 Section 
 
 Plowman v. Biddle, 
 
 
 699 
 
 Plumer v. Smith, 
 
 
 473 
 
 Plummer v. Bucknan, 
 
 504 
 
 681 
 
 Poague V. Spriggs, 
 
 
 415 
 
 Poe V. Duck, 
 
 
 734 
 
 Polhemus v. Heiman, 
 
 
 692 
 
 Pollard V. Lyman, 
 
 
 427 
 
 Pollard V. Maddox, 
 
 
 576 
 
 Polly V. Vantuyl, 
 
 
 762 
 
 Pomeroy v. Ainsworth, 
 
 700 
 
 732 
 
 Ponton V. Griffin, 
 
 
 51 
 
 Pooley V. Driver, 
 
 
 167 
 
 Pope V. Albioai Bank, 
 
 
 383 
 
 Pope V. Linn, 
 
 
 484 
 
 Poplett V. Stockdale, 
 
 
 468 
 
 Pordage v. Cole, 
 
 
 589 
 
 Porter v. Ballard, 
 
 
 51 
 
 Porter v. Doby, 
 
 
 639 
 
 Porter v. Jones, 
 
 418 
 
 476 
 
 Porter u. Bead, 
 
 
 585 
 
 Porter v. Stewart, 
 
 
 663 
 
 Posey V. Bullitt, 
 
 
 399 
 
 Posten V. Kassette, 
 
 
 339 
 
 Potter V. Brown, 
 
 
 736 
 
 Potter V. Duffield, 
 
 
 513 
 
 Potter V. Earnest, 
 
 
 427 
 
 Potter V. Titoomb, 
 
 
 208 
 
 Potter V. Tuttle, 
 
 
 752 
 
 Potts V. Merrit, 
 
 506 
 
 ,627 
 
 Poussard v. Spiers, 
 
 620 
 
 ,630 
 
 Powell V. Blackett, 
 
 
 168 
 
 Powell V. Bradlee, 
 
 
 221 
 
 Powell V. Pinch, 
 
 
 368 
 
 Powell V. Liman, 
 
 
 480 
 
 Powell V. Sammons, 
 
 
 675 
 
 Powell V. Smith, 
 
 
 78 
 
 Power V. Kane, 
 
 
 572 
 
 Powers V. Skinner, 
 
 
 492 
 
 Prather v. Harlan, 
 
 
 486 
 
 Prather v. Vineyard, 
 
 
 523 
 
 Pratt V. Adams, 
 
 
 726 
 
 Pratt V. Beaupre, 
 
 
 357 
 
 Pratt V. Law, 
 
 
 698 
 
 Pratt V. Philbrook, 
 
 677 
 
 ,678 
 
 Pratt V. Putnam, 
 
 
 661 
 
 Pratt V. Wright, 
 
 371 
 
 527 
 
INDEX TO CASES CITED. 
 
 
 Section 
 
 Pray v. Pierce, 
 
 682 
 
 Preble v. Baldwin, 
 
 535 
 
 Preble v. Bottom, 
 
 676 
 
 Prentiss v. Savage, 
 
 735 
 
 Presbury v. Morris, 
 
 98 
 
 Presbyterian Society «. 
 
 Staples, 522 
 
 Preston v. Dunham, 
 
 97 
 
 Preston v. Hull, 
 
 22, 370 
 
 Prettyman v. Goodrich, 
 
 644 
 
 Prewitt V. Garrett, 
 
 470 
 
 Price V. Alexander, 
 
 399 
 
 Price V. Caperton, 
 
 475, 492 
 
 Price V. Evans, 
 
 576 
 
 Price V. Griffith, 
 
 581 
 
 Price V. Hartshorn, 
 
 605, 612 
 
 Price V. Pittsburgh, etc. 
 
 Railroad, 766 
 
 Price V. Powell, 
 
 605 
 
 Price V. Sturgis, 
 
 61, 535 
 
 Prichard v. Martin, 
 
 683 
 
 Princeton, etc., Turnpike v. Gul- 
 
 ick, 
 
 90 
 
 Pringle v. Dunn, 
 
 318 
 
 Pringle v. Samuel, 
 
 210, 219 
 
 Printing, etc., Co. u. Sampson, 460 
 
 Proctor V. Sears, 
 
 276 
 
 Proctor V. Thrall, 
 
 236 
 
 Prj'or V. Coulter, 
 
 353 
 
 Puckett V. Roquemore, 
 
 474 
 
 Pugh V. Good, 
 
 505 
 
 Pugh V. Leeds, 
 
 749 
 
 Pullen V. Chase, 
 
 700 
 
 Pullman v. Corning, 
 
 663, 688 
 
 Purdy V. Philips, 
 
 700 
 
 Putnam v. Westcott, 
 
 426 
 
 Quartermous v. Kennedy, 58 
 
 . Quinlin v. Moisson, 736 
 
 Quinnetti). Washington, ,145, 247 
 
 ■Quirk V. Thomas, 465 
 
 Badford v. "Westcott, 272 
 
 Eainbolt v. Eddy, 378 
 
 Eainey v. Capps, 484 
 
 Eamaley v. Leland, 170 
 
 JRamloU Thackoorseydass v. Soo- 
 
 jumnuU DhonmuU, 489 
 372 
 
 Section 
 
 Eandall v. Ghent, 27 
 Eandel v. Chesapeake and Dela- 
 ware Canal, 400, 579 
 
 Eandle v. Harris, 470 
 
 Eandlet v. Herren, 680 
 
 Randolph v. Jones, 493 
 
 Rankin v. Potter, 606 
 
 Rapp V. Palmer, 320 
 
 Easdall v. Easdall, 562 
 
 Rathbon v. Budlong, 358 
 
 Rawlins v. Wickham, 208 
 
 Rawls V. Deshler, 297 
 
 Rawson v. Curtiss, 875 
 
 Ray, Commonwealth v. 166 
 
 Ray V. Virgin, 213 
 
 Ray V. Young, 503 
 Raymond v. Crown and Eagle 
 
 Mills, 359 
 
 Raymond v, Sellick, 424 
 
 Eaymond v. Smith, 421 
 
 Raynor v. Wilson, 671 
 
 Eea V. Owens, 412 
 
 Eeady v. Kearsley, 662 
 
 Redmond v. Coffin, 353 
 
 Reed v. Batchelder, 272 
 
 Reed v. Boshears, 276 
 
 Reed v. Kemp, 639 
 
 Reed v. McGrew, 34 
 
 Reed v. Marble, 661 
 
 Reed v. Roark, 165 
 
 Rees V. Overbaugh 637 
 
 Reese v. Medlock, 711 
 
 Reeves v. Butcher, 484 
 
 Reeves v. Topping, 691 
 
 Rehoboth v. Eehoboth, 310 
 
 Reid V. Davis, 676 
 
 Reid V. Edwards, 612 
 
 Reid V. Hibbard, 416 
 
 Reilly v. Chouquette, 682 
 
 Eeinicker v. Smith, 801 
 
 Reinskoff v. Eogge, 305 
 
 Eemick v. Butterfield, 251 
 
 Renew v. Butler, 251 
 
 Reniger v. Fogossa, 24 
 
 Renner v. Columbia Bank, 572 
 
 Rentch v. Long, 551 
 
INDEX TO CASES CITED. 
 
 Section 
 Reuss V. Picksley, 512 
 Reynolds v. Cleveland, 394 
 Reynolds v. Nichols, 460 
 Reynolds v. Stark, 308 
 Rhea v. Yoder, ■ 224 
 Rhoades v. Castner, 513, 639 
 Rhode 1). Louthain, 168, 327, 374 
 Rhodes v. Otis, 534 
 Rhodes v. Rhodes, 605 
 Rhodes v. Thomas, 645 
 Rice V. McLarren, 711 
 Rice t!. Maxwell, 476, 495 
 Rice V. Peet, 292, 295, 426 
 Richards v. Allen, 148 
 Richards ». Betzer, 64 
 Richards v. Richards, 634, 564 
 Richardson v. Adams, 222 
 Richardson v. Boright, 276 
 Richardson ». Chickering, 594 
 Richardson v. Cooper, 645 
 Richardson v. Crandall, 493 
 Richardson v. Pierce, 539 
 Richardson v. Strong, 84, 85 
 Richardson ». Tipton, 96 
 Richardson v. Williams, 519, 647, 706 
 Richardson v. "Williamson, 100 
 Riche V. Ashbury Railway Car- 
 riage, etc., Co., 309 
 Richmond v. Dubuque, etc., Rail- 
 road, 127 
 Richmond Manuf. Co. v. Davis, 639 
 Rickey v. Hillman, 251 
 Ricks V. Yates, 683 
 Riddle v. Brown, 634 
 Riddle v. Ratliff, 498 
 Riddle v. Varnum, 547 
 Rider v. Powell, 211 
 Ridgeway v. Toram, 120 
 Riggs V. Magruder, 550 
 Rigs V. Cage, 341 
 Rigsbee v. Trees, 236 
 Riley v. Tarnsworth, 513 
 Riley v. Kershaw, 417 
 Riley v. Mallory, 267 
 Riley v. Schawacker, 201 
 Rindskoff v. Barrett, 572, 590 
 
 
 Section 
 
 Ringo V. Binns, 
 
 251 
 
 Rippey v. Friede, 
 
 428 
 
 Rippy V. Gant, 
 
 290 
 
 Ritter's Appeal, 
 
 801 
 
 Rivard v. Walker, 
 
 762 
 
 Rivers v. Thayer, 
 
 527 
 
 Robb V. Halsey, 
 
 721, 726 
 
 Robbins v. Ayres, 
 
 14,31,651 
 
 Robbins v. Potter, 
 
 647 
 
 Roberts v. Lund, 
 
 206, 712 
 
 Roberts v. McNeely, 
 
 726 
 
 Roberts v. Morgan, 
 
 448 
 
 Roberts v. Roekbottom Co., 543 
 
 Robertson v. Paul, 342 
 
 Robinson v. Barrows, 463 
 
 Robinson v. Bright, 674 
 
 Robinson v. Crenshaw, 476, 495 
 
 Robinson v. Davison, 620 
 
 Robinson v. Piske, 585, 590 
 
 Robinson v. Gould, 244 
 
 Robinson v. Raynor, 681 
 
 Robinson v. Walton, 387 
 Robinson v. Weeks, 266, 268, 276 
 
 Robinson v. Williams, 564 
 
 Robison v. Robison, 138 
 
 Roby V. West, 458 
 Rockford, etc., Railroad v. Sage, 92 
 
 Rockhill V. Spraggs, 66 
 
 Rockwell V. Brown, 403 
 
 Rockwood V. Collamer, 547 
 
 Rockwood V. Wiggin, 434 
 
 Rodgers v. Price, 266 
 
 Rogers, Ex parte 323 
 
 Rogers v. Allen, 568 
 
 Rogers v. Atkinson, 236 
 
 Kogers V. Bracken, 353 
 
 Rogers v. Brightman, 537 
 
 Rogers v. Colt, 214 
 
 Rogers v. Danforth, 590 
 
 Rogers v. Frost, 363 
 
 Rogers v. Hanson, 675 
 
 Rogers v. Hillhouse, 27 
 
 Rogers v. Kichline, 395 
 
 Rogers v. Lockett, 251 
 
 Rogers i;. March, 357, 358 
 
 Rogers v. Parham, 683 
 
 373 
 
INDEX TO CASES CITED. 
 
 Section 
 Rogers v. Payne, 32 
 Eollins V. Dyer, 63 
 EoUina v. Phelps, 357 
 EoUison V. Hope, 51 
 Bommel v. Wlngate, 178 
 Eooke V. Kensington, 595 
 Eoosa V. Crist, 730 
 Eoot V. French, 200 
 Rose V. Beattie, 97 
 Eose V. Daniels, 412 
 Eosevelt v. Pulton, 219 
 Eoss V. Madison, 316 
 Eoss V. Sadgbeer, 478 
 Eogs V. "Welch, 554 
 Eoth V. Moore, 394 
 Eounds V. Baxter, 681 
 Eoutledge v. Grant, 180 
 Eovegno v. Defferari, 194, 231 
 Eowan v. Hyatt, 708 
 Eowe V. Ware, 327 
 Eowlett V. Eubank, 584 
 Eowley v. Bigelow, 200 
 Eoyalton v. Eoyalton, etc.. Turn- 
 pike, 588 
 Eoyce v. Allen, 357 
 Eoys V. Johnson, 466 
 Eubon V. Stephen, 758 
 Eucker v. Cammeyer, 330, 334 
 Euggles V. Keeler, 748 
 Euggles V. Swanwick, 62 
 Euiz V. Norton, 360 
 Eunkle v. Johnson, 589, 697 
 Eunnamaker v. Cordray, 445 
 Eussell V. Babcock, ' 421 
 Eussell V. Branham, 220 
 Eussell V. Rowland, 766 
 Eussell V. Slade, 537 
 Eutherford v. Baptist Convention, 413 
 Eutland's Case, 32 
 Eutland Bank v. Parsons, 458 
 Eutledge v. Montgomery, 762 
 Eyan v. Dox, 505 
 Eyan v. Doyle, 707 
 Eyan v. Parker, 644 
 Eyan v. "Ward, 63 
 Eylands v. Fletcher, 613 
 
 374 
 
 Eyno V. Darby, 
 
 SBCTIOH 
 
 484 
 
 Safety Deposit Life Ins. Co. v. 
 
 Smith, 92 
 
 Sage V. Eanney, 700 
 
 Sage V. Wilcox, 524 
 
 St. Louis V. McDonald, 695 
 
 St. Mary's Bank v. Calder, 711 
 
 St. Patrick's Church v. Abst, 75 
 
 Sale V. Lambert, 513 
 
 Salisbury v. Andrews, 576, 600 
 
 Salmon v. Brown, 419 
 
 Salmon Falls Manuf. Co. </. Ports- 
 mouth Co., 578 
 Salter v. Burt, 701 
 Saltmarsh v. Beene, 251 
 Saltmarsh v. Smith, 340 
 Samuel v. Marshall, 290 
 Samuels v. Gorham, 547 
 Sanborn v. Batchelder, 203 
 Sanborn v. Fireman's Lis. Co., 50 
 Sanborn v. Flagler, . 166 
 Sanborn v. Merrill, 523 
 Sanborn v. Sanborn, 511 
 Sanders v. Branch Bank, 415 
 Sanders v. Johnson, 483 
 Sanders v. Norton, 700 
 Sanders v. Ochiltree, 701 
 Sanderson v. Columbia Lis. Co., 572 
 Sanderson v. Graves, 502, 534, 650 
 Sanford v. Housatonic Railroad, 605 
 Sanford v. Howard, 238 
 Sanford v. Huxford, 420 
 San Francisco, People v. 220 
 Saratoga County Bank v. King, 28, 
 465, 471, 478 
 Sargent v. Eeed, 27 
 Sartwell v. Horton, >247 
 Sasportas v. Jennings, 247 
 Satterlee v. Jones, 493 
 Satterwhite v. Burwell, 748 
 Saunders v. Cadwell, 27 
 Saunders v. Hanes, 20, 578 
 Saunderson v. Jackson, 166 
 Savage Manuf. Co. v. Armstrong, 697 
 Sawyer v. Kendall 594 
 
INDEX TO CASES CITED. 
 
 
 Section 
 
 Sawyer t;. Lufkin, 
 
 85 
 
 Sa-wyer v. Nichols, 
 
 547 
 
 Sawyer v. Peters, 
 
 671 
 
 Sawyer v. "Ware, 
 
 551 
 
 Say's Case, 
 
 600 
 
 Say V. Barwick, 
 
 302 
 
 Sayre v. Nichols, 
 
 357, 358 
 
 Sayre v. "Wheeler (31 Iowa, 112), 483, 
 
 484 
 Sayre v. "Wheeler (32 Iowa, 559), 483 
 Scaife v. Farrant, 322 
 Scales V. Ashbrook, 236 
 Scales V. Key, 571 
 Scarlet v. Gorham, 200 
 Schemerhorn v. Vanderheyden, 65 
 Schmertz v. Shreeve, 400 
 Schneider v. Norris, 166 
 Schnell v. Nell, 405, 410 
 Schnell v. Schroder, " 92 
 Schnierle, State «. 749 
 Schofleld V. Holland, 204 
 Scholay v. Kew, 133 
 School Committee v. Kesler, 169 
 School District v. Bragdon, 267 
 School District v. Dauchy, 615 
 Schrader v. Dedker, 273 
 Schuylkill Navigation Co. «. Har- 
 ris, 413 
 Schwalm v. Holmes, 478 
 Schwalm v. Mclntyre, 639 
 Schwear v. Haupt, 236 
 Scobey v. Koss, 477 
 Scoggin V. Blackwell, 542 
 Scoggin V. Slater, 534 
 Scott, In re . 75 
 Scott V. Dansby, 400 
 Scott V. Duncan, 211 
 Scott V. Hix, 96 
 Scott V. McKinney, 647 
 Scott V. Mann, 333, 336 
 Scott V. Messick, 357 
 Scott V. "Whipple, 171 
 Scouton V. Eislord, 448 
 Scovill V. Griffith, 605 
 Scoville V. Canfield, 737 
 Scranton v. Clark, 96 
 
 Section 
 
 Scruggs V. Driver, 340 
 Scudder v. "Union National Bank, 53, 
 
 722 
 
 Scully V. Eirkpatrick, 621 
 
 Seaman v. "Whitney, 523 
 
 Sears v. Brink, 512 
 
 Seaver v. Coburn, 357 
 Seaver v. Phelps, 294, 295 
 
 Sedgwick v. Stanton, 492 
 
 Seery v. Socks, 358 
 
 Seidenbender v. Charles, 458 
 
 Selby V. Hutchinson, 676 
 
 Selby V. Selby, 167 
 
 Selden v. Myers, 192 
 
 Selden v. Preston, 619 
 
 Seldonridge v. Connable, 64 
 
 Self 1). Clark, 495 
 
 Selkirk v. Cobb, 362 
 
 Sellers v. Dugan, 483 
 Selma v. Mullen, 49, 815 
 
 Sentance v. Poole, 285 
 
 Senter v. Bowman, 726 
 
 Sergeson v. Sealy, 291 
 
 Sergison v. Sealey, 291 
 
 Sessions v. Richmond, 753 
 
 Sevey v. Blacklin, 758 
 
 Sewall V. Sparrow, 44 
 
 Sewall ». "Wilkins, 589 
 
 Sexton V. Fleet) 663 
 
 Seymour v- Bennet, 688 
 
 Seymour v. Marlboro, 445 
 
 Shackelford v. Barrow, 689 
 
 Shackelford v. Hendley, 224 
 
 Shaefferi). Geisenburg, 124 
 
 ShaefTer v. Sleade, 227 
 
 Shankland v. "Washington, 238 
 
 Shapley v. Abbott, 447 
 
 Shapley v. Garey, 748 
 
 Sharington v. Strotton, 23 
 
 Sharman v. Brandt, 335 
 Sharp V. Jones, 200, 361 
 Sharp V. Teese, 476, 495 
 
 Sharp V. United States, 171 
 
 Sharp V. "Wright, 481 
 
 Sharpe v. Eogers, . 425 
 
 Shaw V. Barnhart, 
 
 204 
 
 375 
 
INDEX TO CASES CITED. 
 
 
 Section 
 
 
 Section 
 
 Shaw V. Bran, 
 
 27 
 
 Shuetze v. Bailey, 
 
 827 
 
 Shawu. Cuffln, 
 
 267 
 
 Shuey v. United States, 
 
 177 
 
 Shaw V. Loud, 
 
 601 
 
 Shufeldt V. Pease, 
 
 200 
 
 Shaw V. Mitchell, 
 
 572 
 
 Shumau v. Shuman, 
 
 487 
 
 Shaw V. Nudd, 
 
 330 
 
 Shunk v. Miller, 
 
 584 
 
 Shaw V. Eeed, 
 
 475 
 
 Sicard v. Davis, 
 
 560 
 
 Shaw V. Spooner, 
 
 242 
 
 Sickles V. United States, 
 
 628 
 
 Shaw B. Turnpike, 
 
 657, 752 
 
 Sidwell V. Evans, 
 
 421 
 
 Shaw V. "Woodcock, 
 
 502 
 
 Sidwell V. Lobly, 
 
 435 
 
 Shaw V. "Worcester, 
 
 756 
 
 Sieckman v. Allen, 
 
 615 
 
 Shay V. Pettes, 
 
 286 
 
 Siemon v. "W^ilson, 
 
 290 
 
 fiheehy v. Adarene, 
 
 545 
 
 Sigerson v. Mathews, 
 
 449 
 
 Sheets v. Selden, 
 
 748 
 
 Sillimau v. "Wing, 
 
 144 
 
 Shelby v. Smith, 
 
 237 
 
 Simmons v. Almy, 
 
 417 
 
 Sheldon v. Dunlap, 
 
 857 
 
 Simon v. Motives, 
 
 334 
 
 Sheldon v. Harding, 
 
 425 
 
 Simonton v. Clark, 
 
 447 
 
 Sheldon v. Kice, 
 
 417 
 
 Simpson v. Bibber, 
 
 61 
 
 Sheldon v. Sheldon, 
 
 251 
 
 Simpson v. Crippin, 
 
 676 
 
 Shelley's Case, 
 
 579 
 
 Simpson v. Margitson, 
 
 748 
 
 Shelly's Case, 
 
 256 
 
 Simpson v. Nance, 
 
 628 
 
 Shelton v. Deering, 
 
 639 
 
 ' Simpson v. Pearson, 
 
 185 
 
 Shelton u. Marshall, 
 
 727 
 
 Sims V. Bice, 
 
 169 
 
 Shenkti. Mingle, 
 
 494 
 
 Sims V. Pen-ill, 
 
 220 
 
 Shepard'i). Haas, 
 
 58 
 
 Sims V. Hutchins, 
 
 506 
 
 Shepard v. Rhodes, 
 
 447 
 
 Sims V. McBwen, 
 
 503 
 
 Shepherd v. Hedden, 
 
 321 
 
 Sims V. McLure, 
 
 85 
 
 Shepherd v. White, 
 
 112 
 
 Sinard v. Patterson, 
 
 82 
 
 Sheppard v. Spates, 
 
 701 
 
 Sinclair v. Healy, 
 
 200 
 
 Sherburne v. Fuller, 
 
 680 
 
 Singleton v. Bremar, 
 
 •494 
 
 Sherman v. Barrett, 
 
 494 
 
 Singleton v. Mann, 
 
 332 
 
 Sherman v. Champlain 
 
 Transp. 
 
 Siter V. Sheets, 
 
 458 
 
 Co., 
 
 96, 537, 683 
 
 Skeate v. Beale, 
 
 245 
 
 Sherman v. G-assett, 
 
 731 
 
 Skidmore v. Komaine, 
 
 85 
 
 Sherman v. Eoberts, 
 
 486 
 
 Skinner v. Dayton, 
 
 711 
 
 Shewalter v. Pirner, 
 
 580 
 
 Skinner v. McCarty, 
 
 14 
 
 Shewmake v. "Williams, 
 
 200 
 
 Skinner v. Maxwell, 268 
 
 275, 276 
 
 Shipley v. Patten, 
 
 537 
 
 Skinner v. Tinker, 
 
 728 
 
 Shirley v. Pearne, 
 
 399 
 
 Skinner v. "White, 
 
 755 
 
 Shirley v. Shirley, 
 
 512 
 
 Skrine v. Simmons, 
 
 213 
 
 Shively v. Black, 
 
 512 
 
 Slade V. Arnold, 
 
 488 
 
 Short V. Stone, 
 
 693 
 
 Slade V. Ehodes, 
 
 477 
 
 Short V. Tinsley, 
 
 547 
 
 Slatter v. Meek, 
 
 602 
 
 Short V. "Woodward, 
 
 535 
 
 Slaughter i>. Cunningham, 
 
 272 
 
 Shotwell V. Hamblin, 
 
 470 
 
 Slaymaker v. St. Johns, 
 
 112 
 
 Shotwell V. McKown, 
 
 358 
 
 Slidell V. Eightor, 
 
 224 
 
 Shropshire v. Bums, 
 
 276 
 
 Small V. Owings, 
 
 330 
 
 376 
 
 
 
 
INDEX TO CASES CITED. 
 
 
 SECTION 
 
 Small V. Reeves, 
 
 697 
 
 Smart v, Sandars, 
 
 320, 338, 339 
 
 Smith, Succession of 
 
 294 
 
 Smith V. ^tna Life Ttib, 
 
 Co., 218 
 
 Smith V. Alexander, 
 
 358 
 
 Smith V. Allen, 
 
 287 
 
 Smith V. Appelgate, 
 
 492 
 
 Smith V. Atwood (14 Ga 
 
 . 402), 242 
 
 Smith V. Atwood (3 
 
 McLean, 
 
 545), 
 
 737 
 
 Smith V. Babcock, 
 
 223 
 
 Smith V. Bartholomew, 
 
 412, 415 
 
 Smith V. Bean, 
 
 487 
 
 Smith ». Beatty, 
 
 290 
 
 Smith V. Boquet, 
 
 112 
 
 Smith V. Bradley, 
 
 111 
 
 Smith V. Bromley, 
 
 142 
 
 Smith V. Brooks, 
 
 65 
 
 Smith V. Brown, 
 
 416 
 
 Smith V. Buchanan, 
 
 736 
 
 Smith V. Burnham, 
 
 634 
 
 Smith V. Case, 
 
 484 
 
 Smith V. Click, 
 
 226 
 
 Smith V. Crooker, 
 
 21, 372 
 
 Smiths. Dickinson, 
 
 327 
 
 Smith V. Elliott, 
 
 290 
 
 Smith V. Evans, 
 
 267 
 
 Smith V. Finch, 
 
 524 
 
 Smith V. Godfrey, 
 
 723 
 
 Smith V. Goulding, 
 
 535 
 
 Smith V. Gower, 
 
 427 
 
 Smith V. Greenlee, 
 
 481 
 
 Smith V. Gugerty, 
 
 646 
 
 Smith V. Holland, 
 
 63 
 
 Smith V. Hughes, 
 
 215, 219 
 
 Smith e. Jordan, 
 
 690 
 
 Smith V. Kay, 
 
 215 
 
 Smith V. Kerr, 
 
 399 
 
 Smith V. Lamb, 
 
 669 
 
 Smith V. Leavensworth, 
 
 699 
 
 Smith V. Lewis, 
 
 688 
 
 Smith V. McCluskey, 
 
 426 
 
 Smith V. Mace, 
 
 639 
 
 Smith V. Mclver, 
 
 213 
 
 Smith V. McLaughlin, 
 
 256 
 
 Smith V. Mayo, 
 
 276 
 
 Section 
 Smith V. Montgomery, 519 
 
 Smith V. Muncie National Bank, 726 
 Smith V. Perry, 827 
 
 Smith V. Porter, 64 
 
 Smith V. Richards, 228, 224 
 
 Smith u. Richmond, 448 
 
 Smith V. Rumsey, 713 
 
 Smith V. Smith (8 Blackf. 208), 652 
 Smith V. Smith (7 Car. & P. 401), 434 
 
 Smith V. Stone, 
 Smith V. Tracy, 
 Smith V. Tupper, 
 Smith V. Turpin, 
 Smith V. "Weld, 
 Smith V. Whildin, 
 Smith V. White, 
 Smith V. Whitman, 
 Smith V. Wilcox, 
 Smith wick v. Shepherd, 
 Smout V. Hbery, 
 SmuU V. Jones, 
 Smyth V. Anderson, 
 Sneed v. Wiggins, 
 Snevily v. Johnston, 
 Snevily v. Bead, 
 Snow V. Grace, 
 Snyder v. Kirtley, 
 Snyder v. Willey, 
 Soggins V. Heard, 
 Solomon v. Dreschler, 
 Somers v. Pumphrey, 
 
 Somerset, Rex v. 
 Somes V. Skinner, 
 Sorrell v. Jackson, 
 Souch V. Strawbridge, 
 Soule V. Albee, 
 Soule V. Bonney, 
 South Berwick v. Huntress, 
 South Scituate v. Hanover, 
 Southern Express v. Duffey 
 Southern Express v. Palmer, 
 Southern Express v. Womack, 
 Southern Lis., etc., Co. v. Cole, 
 Southern Life Insurance, etc., Co, 
 V. Lanier, 
 
 377 
 
 401 
 
 378, 387 
 400 
 69 
 644 
 411 
 496 
 605 
 485 
 616 
 841 
 481 
 362 
 752 
 524 
 
 451, 452 
 417 
 79 
 475 
 537 
 458 
 199, 277, 296, 
 297 
 
 612, 613 
 225, 285, 290 
 
 498, 512 
 637 
 623 
 242, 473, 475 
 372 
 706 
 
 475 
 709 
 614 
 550 
 
 314 
 
INDEX TO CASES CITED. 
 
 Southwestern Freight, etc., Co. 
 
 V. Stanard, 
 Soutier v. Kellerman, 
 Spafford n. Page, 
 Spalding V. Musltingum, 
 Spalding v. Preston, 
 Spalding, United States v. 
 Spann v. Baltzell, 
 Sparks v. Messick, 
 Spaulding v. Crawford, 
 Speake v. United States, 
 Speckles v. Sax, 
 Spedding v. Nevell, 
 Speer v. Hadduck, 
 Speer v. Speer, 
 Speers v. Sewell, 
 Spencer v. Carr, 
 Spencer v. Cone, 
 Spencer v. Vance, 
 Spinks V. Davis, 
 Spinner v. Halstead, 
 Spitler V. James, 
 Spring V. Coffin, 
 Springs v. Hanks, 
 Spugin V. Traub, 
 Spurr V. Trimble, 
 Squire v. Whipple, 
 Stacey v. Eandall, 
 Stack V. Eaney, 
 Stackpole v. Arnold, 
 Stackpole v. Symonds, 
 ' Stacy V. Kemp, 
 Stacy V. Boss, 
 Stafford v. Bacon, 
 Stafford v. Eoof, 
 Standiford v. Gentry, 
 Stanford v. Pruet, 
 Stanley v. Nelson, 
 Btansbury v. Pringer, 
 Stanton v. "Willson, 
 Stapler v. Hurt, 
 Stark V. Henderson, 
 
 Stark V. Eaney, 
 
 Stark V. Thompson, 
 
 Starkweather i>. Clevels 
 
 Starr v. Earle, 
 
 378 
 
 Section 
 
 
 Section 
 
 3to., Co. 
 
 State Bank v, Moore, 
 
 473 
 
 572 
 
 Stead V. Dawber, 650, 
 
 657, 667 
 
 572 
 
 Steadman ». Guthrie, 
 
 512 
 
 51 
 
 Stea-rns v. Hall, 
 
 .650 
 
 140 
 
 Stearns v. Haven, 
 
 167 
 
 458 
 
 Stearns v. Johnson, 
 
 417 
 
 ). 635 
 
 Stebhius V. Leowolf, 
 
 701, 720 
 
 647 
 
 Stebbins v. Niles, 
 
 242 
 
 96 
 
 Stebbins v. Smith, 
 
 616 
 
 244, 445 
 
 Steel V. Payne, 
 
 560 
 
 653 
 
 Steel V. Steel, 
 
 671 
 
 168 
 
 Steele v. Hobbs, 
 
 426 
 
 100 
 
 Steele v'. McElroy, 
 
 357 
 
 342 
 
 Steinman v. Magnus, 
 
 415 
 
 640 
 
 Stephens v. Spiers, 
 
 476, 495 
 
 290 
 
 Stephenson v. Clark, 
 
 547 
 
 263, 264, 276 
 
 Sterling ti. Baldwin, 
 
 538 
 
 551 
 
 Sternberg v. Bowman, 
 
 418, 480 
 
 434 
 
 Stewart v. Hamilton College 
 
 419 
 
 323 
 
 Stewart v. Keteltas, 
 
 695 
 
 532 
 
 Stewart v. Loring, 
 
 618 
 
 372 
 
 Stewart v. Morrow, 
 
 699 
 
 426 
 
 Stewart v. Weed, 
 
 763 
 
 27 
 
 Stevens v. Adams, 
 
 699 
 
 195 
 
 Stevens v. Austin, 
 
 205 
 
 327 
 
 Stevens v. Hatch, 
 
 762 
 
 542 
 
 Stevens v. Walker, 
 
 99 
 
 577 
 
 Stilwell V. Wilkins, 
 
 409 
 
 523 
 
 Stimpson v. Gilchrist, 
 
 605 
 
 357 
 
 Stimpson v. Sprague, 
 
 120 
 
 486 
 
 Stockley v. Stockley, 
 
 291 
 
 485 
 
 Stockton V. Turner, 
 
 400, 578 
 
 194 
 
 Stockwell V. Bramble, 
 
 52, 53 
 
 452 
 
 Stoddard v. Mix, 
 
 355 
 
 264, 272, 276 
 
 Stoddard v. Penniman, 
 
 639 
 
 529 
 
 Stokes V. Brown, 
 
 276 
 
 730 
 
 Stokes V. Burrell, 
 
 697 
 
 458 
 
 Stone V. Bradbury, 
 
 14 
 
 589 
 
 Stone V. Covell, 
 
 223 
 
 86 
 
 Stone V. Dennis, 
 
 612 
 
 210 
 
 Stone V. Dennison, 
 
 266, 502 
 
 212 
 
 Stone V. Denny, 
 
 223 
 
 467 
 
 Stone V. Hooker, 
 
 468 
 
 706 
 
 Stone V. Peacock, 
 
 547 
 
 idIns.Co., 113 
 
 Stone V. Symmes, 
 
 521 
 
 524 
 
 Stone V. Wood, 
 
 867 
 
INDEX TO OASES CITED. 
 
 Section 
 
 Story V. Norwich, etc., Railroad, 224 
 
 Story V. Pery, 265 
 
 Stose V. People, 758 
 
 Stoudenmeler v. Williamson, 515 
 
 Stouifer v. Latsliaw, 242 
 Stoutenburg v. Lybrand, 418, 475 
 
 Stovallu.Bamett, 29 
 
 Stover V. Flack, 663 
 
 Stover V. Metzgar, 577 
 
 Stow V. Russell, 752 
 
 Stow w. Sawyer, 93 
 
 StowD. "Wyse, 829 
 
 Strahn v. Hamilton, * 425 
 
 Strain v. Wright, 272 
 
 Straus V. Eagle Ins. Co., 807 
 
 Strawbridge v. Cartledge, 65 
 
 Strawn v. Cogswell, 660 
 
 Streets. Chapman, 183 
 
 Strieker v. Tinkham, 724 
 
 Strohecker v. Farmers' Bank, 602 
 
 Strohn V. Detroit, etc.. Railroad, 614 
 
 Strohn v. Hartford Fire Ins. Co., 50 
 
 Strong ». Courtney, 425 
 
 Strong V. Poote, 86 
 
 Strong V. Grand Trunk Railroad, 572 
 
 Stroud V. Smith, 491 
 
 Stroughi). Gear, 201 
 Stryker v. Vanderbilt, 214, 701 
 
 Stuart V. Lake, 94 
 
 Stubbs V. Holywell Railway, 620 
 
 Stubbs V. Houston, 288 
 
 Styron v. Bell, 647 
 Suber v. PuUin, 551, 677 
 
 Suffernn v. Butler, 169 
 
 Sugarman v. State, _ 612 
 
 Suggetti). Cason, 537 
 
 SuUings V. Richmond, 627 
 
 Sullivan v. Thompson, 572 
 
 Summerall v^ Thorns, 537 
 
 Sumner v. Jones, 487 
 Sumner v. Williams, 101, 357, 576 
 
 Sutton, Ex parte 850 
 
 Sutton's Hospital, 810 
 
 Sutton V. Cole, 711 
 
 Sutton V. Howard, 753 
 
 Swain v. Ransom, 22 
 
 Section 
 
 Swan V. Stedman, 899 
 
 Swanzey v. Moore, 502, 604, 606, 545 
 
 Swatara Railroad v. Brune, 81 
 
 Sweem v. Steele, 759 
 
 Sweeney v. Owsley, 547 
 
 Sweezey v. Collins, 128 
 
 Swift V. Crocker, 445 
 
 Swift V. Pierce, 620 
 
 Swift V. Tousey, 747 
 
 Switzer v. Knapps, 660 
 
 Switzeri). Skiles, 481 
 
 Swope V. Forney, 65 
 
 Taft V. Pike, 267 
 
 Taft V. Ward, 740 
 
 Tahiti Cotton Co., In re 868, 372 
 
 Taiutor v. Prendergast, 360 
 
 Talbot V. Bowen, 332 
 
 Talmadge v. North American 
 
 Coal, etc., Co., 814 
 
 Tanneret v. Edwards, 647 
 
 Tappan v. Poor, 735 
 
 Tappan v. Redfleld, 327 
 
 Tappin v. Broster, 443 
 
 Tarbell v. Tarbell, 627 
 
 Tarleton v. Kennedy, 132 
 
 Tamer v. Walker, 177 
 
 Tasker v. Bartlett, 16 
 
 Tate V. Evans, 379 
 
 Tate V. Tate, 263 
 Tatterson v. Suffolk M»nuf. Co., 646 
 
 Taunton v. Pepler, 17 
 
 Taylor v. Blanchard, 479 
 
 Taylor v. Chester, 418, 496 
 
 Taylor v. Cornelius, 69 
 
 Taylor v. Cottrell, 242 
 
 Taylor v. Dudley, 285 
 
 Taylor v. Dunbar, 624 
 
 Taylor v. Glaser, 14 
 
 Taylor v. Luther, 605 
 
 Taylor v. Mechanics' Savings 
 
 Bank, 263 
 
 Taylor v. Meek, 624, 647 
 
 Taylor v. Mygatt, 516 
 
 Taylor v. Nussba'uin, 417 
 
 Taylor v. Obee, 409 
 379 
 
INDEX TO CASES CITED. 
 
 Taylor v. Preston, 
 Taylor v. Eobinson, 
 Taylor v. "Wells, 
 Tempest v. Kilner, 
 Teneick v. Plagg, 
 
 Reotiost 
 20 
 707 
 320 
 550 
 766 
 Tenney v. East Warren, etc., 
 
 Co., 315 
 
 Tenney v. Prince, 407, 512 
 
 Terhune v. Dever, 223 
 
 Territt v. Bartlett, 458 
 
 Terry v. Hazlewood, 637 
 
 Terry v. New York, 631 
 
 Thacher v. Dinsmore, 357 
 
 Thatcher v. England, 177 
 
 Thayer v. Lapham, 578 
 
 Thayer v. Rock, 534 
 
 Thayer v. Viles, 535 
 
 Thomas v. Austin, 577 
 
 Thomas v. Bartow, 98 
 
 Thomas v. Croft, 524 
 
 Thomas v. Delphy, 524 
 
 Thomas v. Dike, 272, 276 
 
 Thomas v. Graves, 572 
 
 Thomas v. Shoemaker, 702, 748 
 
 Thoinason v. Dill, 430 
 
 Thomasson v. Boyd, 276 
 
 Thomasson v. Risk, 52 
 
 Thompson v. Blanchard, 65, 111, 512 
 Thompson v. Davies, 481 
 
 Thompson v. Dorsey, 434 
 
 Thompson v. Gordon, 537 
 
 Thompson v. Hamilton, 272, 275 
 
 Thompson v. Hunt, 756 
 
 Thompson v. Ketcham, 700, 727 
 
 Thompson v. Laing, 689 
 
 Thompson v. Lay, 276 
 
 Thompson v. Lindsay, 97 
 
 Thompson v. Nelson, 495 
 
 Thompson v. Thompson, 94 
 
 Thompson v. Williams, 653 
 
 Thomson v. Brown, 32 
 
 Thomson v. Butler, 700 
 
 Thomson v. Davenport, 359, 362, 364 
 Thomson, State v. 16 
 
 Thome v. Deas, 429 
 
 Thornton v. Appleton, 296 
 
 380 
 
 Thornton v. Boyd, 
 Thornton u. Corbin, 
 Thornton v. Wynn, 
 Thoroughgood's Case, 
 Thoroughgood v. Walker, 
 Thorp V. McCuUum, 
 Thouvenin v. Lea, 
 Thrall v. Newell, 
 Throop «. Hatch, 
 
 Section 
 747 
 498 
 449 
 169, 194 
 754 
 251 
 537 
 582 
 562 
 
 Thurman v. Wells, 322, 605 
 
 Thurston v. Blanchard, 203, 204, 205 
 Thurston v. Hays, 647 
 
 Tibbetts V. Flanders, 522 
 
 Tileston v. Newell, 589 
 
 Tilton V. Tilton, 342 
 
 Tindal v. Touchberry, 523 
 
 Tingley v. Cutler, 65 
 
 Tisdale v. Buckmore, 679 
 
 Tisdale v. Harris, 650 
 
 Titus V. Preston, 749 
 
 Titus V. Scantling, 727 
 
 Tobey v. Taunton, 102 
 
 Todd V. Summers, 589 
 
 Toleman v. Portbury, 656 
 
 Toles V. Cole, 758 
 
 Tolhurst V. Brickinden, 581 
 
 Tolsons V. Garner, 295 
 
 Tome V. Dubois, 547 
 
 Tomlin v. Cox, 213 
 
 Tomlinson v. Dighton, 28 
 
 Tomlinson v. Smith, 442 
 
 Tompkins v. Philips, 420 
 
 Tompkins v. Wheeler, 763 
 
 Tomson v. Ward, 671 
 
 Toris V. Long, 97 
 
 Torrance v. Bolton, 204 
 
 Toser v. Saturlee, 286 
 
 Touro V. Cassin, 321, 724 
 
 Toussaint v. Martinnant, 90 
 
 Towle V. Leavitt, 375 
 
 Townsend v. Burnham, 86 
 
 Townsend v. Cowles, 220 
 
 Townsend v. Empire State Dress- 
 ing Co., 87 
 Townsend v. Pisher, 430 
 Townsend v. Hurst, 676 
 
INDEX TO CASES CITED. 
 
 Section 
 Townsend v. Townsend (5 Har- 
 
 ring. Del. 127), 356 
 Townsend v. Townsend (6 Met 
 
 819), 535 
 
 Townsley v. Sumrall, 519 
 Towson V. Havre de Grace Baixk, 824 
 
 Trabue v. Short, 730 
 
 Tracy v. Chicago, 576 
 
 Tracy v. Talmage, 141, 142 
 
 Trammell v. Tramraell, 584 
 
 Trasher v. Everhart, 788 
 
 Travers v. Crane, 841 
 
 Travis v. Duffau, 407 
 
 Traynham v. Jackson, 358 
 
 Treadwell v. Herndon, 515 
 Treat v. Shoninger Melodeon Co., 478 
 
 Tremble v. Crowell, 572 
 
 Trent Navigation v. Wood, 612 
 
 Trevor v. "Wood, 183 
 
 Trice v. Turrentine, 758 
 
 Trigg V. Read, 218 
 
 Trimbey ». Vignier, 719, 730 
 
 Trimble v. Coons, 899 
 
 Trinity Church v. Higgins, 700 
 
 Trist V. Child, 492 
 
 Trott V. Irish, 395 
 
 Trovinger v. McBumey, 494, 495 
 
 Trowbridge v. Matthews, 128 
 
 Trowbridge v. "Wetherbee, 535 
 
 Truebody v. Jacobson, 218 
 
 Trueman v. Fenton, 448 
 
 Trueman v. Loder, 385 
 
 Trumbull v. Nicholson, 338, 343 
 
 Trundy v. Farrar, 330 
 
 Tucker v. Moreland, 276 
 
 Tucker v. Mowrey, 487 
 
 Tucker v. Feaslee, 894 
 
 Tucker v. Stokes, 464 
 Tucker v. West, 418, 483, 484 
 
 Tucker v. Woods, 481 
 
 Tuckerman v. Hinkley, 486 
 
 Tufts V. Carradine, 749 
 
 Tugwell V. Heyman, 256 
 
 TuUet V. Linfield, 748 
 
 Turbeville v. Ryan, 400 
 
 TurnbuU v, Gadsden, 213 
 
 
 Sbction 
 
 Turner v. Chrisman, 
 
 448 
 
 Turner v. Huggins, 
 
 219 
 
 Turner v. Johnson, 
 
 226 
 
 Turner v. Jones, 
 
 94 
 
 Turner v. Smart, 
 
 447 
 
 Tuttle V. Ayres, 
 
 858 
 
 Tuttle V. Love, 
 
 178 
 
 Tuttle V. Swett, 
 
 541 
 
 Tyler v. McCardle, 
 
 752 
 
 Tyler v. Smith, 
 
 140 
 
 Tynes v. Grimstead, 
 
 261 
 
 IThler v. Applegate, 
 
 487 
 
 Underwood v. DoUins, 
 
 16 
 
 Underwood v. Hossack, 
 
 421 
 
 Underwood v. West, 
 
 . 203 
 
 Union Bank v. Call, 815, 667 
 
 Union Bank v. Campbell, 887 
 
 Union Bank v. Cook, 639 
 
 Union Gold Mining Co. v. Rocky 
 
 Mt. Nat Bank, " 313 
 
 United States Bank v. Donally, 738 
 University v. McNair, 439 
 
 University of Michigan v. Detroit, 
 
 etc., Soc, " 315 
 
 Updike V. Ten Broeck, 541 
 
 Updike V. TitUs, 453 
 
 Usher V. Livermore, 752 
 
 Usher v. McBratney, 492 
 
 Utica Ins. Co. v. Toledo Ins. Co., 337 
 
 Valentine v. Foster, 418, 451 
 
 Valentine v. Piper, 347 
 
 Valentine v. Stewart, 323, 471, 475 
 
 Van Allen v. Jones, 421, 647 
 
 Van Arsdale v. Howard, 218 
 
 Van Bergen v. Demarest, 342 
 
 Van Deusen v. Sweet, 285, 296 
 
 Van Dusen v. Parley, 237 
 
 Van Hook v. Simmons, 671 
 
 Van Lien v. Byrnes, 860 
 
 Van Ness v. Pacard, 572 
 
 Van Pelt, State v. 644 
 
 Van Stanwood v. Sandford, 14 
 
 Van Valkenburgh v. Smith, 28 
 
 Van Wy v. Clark, 712 
 381 
 
INI>KX TO CASES CITED. 
 
 Section 
 Vanada v. Hopkins, 378 
 
 Vance v. Punk, 16 
 
 Vance v. "Wells, 453 
 
 Vanderkarr v. Vanderkarr, 101 
 
 Vanhooser v. Logan, 699 
 
 Varick v. Edwards, 585 
 
 Varnum v. Meserve, 389, 342 
 
 Vaughan v. Hancock, 532 
 
 Vaughan v. Porter, 425 
 
 Vaughn v. Ferris, 32, 35, 651 
 
 Veach v. Thompson, 240 
 
 Veazie v. Holmes, 554 
 
 Veazie v. Hosmer, 681 
 
 Veazie v. Somerby, 547 
 
 Veghte V. Raritan Water Power 
 
 Co., 560 
 
 Venezuela Railway v. Kisch, 219 
 
 Venti). Osgood, 272 
 
 Vermont Mining and Quarrying 
 
 Co. V. Windham County Bank, 318 
 Vernon v. K.eys, 219, 220 
 
 Vicary v. Moore, 58, 643 
 
 Vinal V. Richardson, 524 
 
 Vincent ». Germond, 554 
 
 Vining v. Gilbreth, 547 
 
 Vinsen v. Lockard, 265 
 
 Violett V. Patton, 498, 512 
 
 Violett V. Powell, 359, 362 
 
 Vischer, People v. 247 
 
 Viser v. Rice, 22, 370, 371 
 
 Visher v. Webster, 435 
 
 Von Hurter v. Spengeraan, 355 
 
 Voorhees v. Combs, 90 
 
 Vose V. Handy, 563 
 
 Voss, United States v. 386 
 
 Vroman v. Darrow, 657 
 
 Waddell v. Hewitt, 
 
 762 
 
 Wade V. Haycock, 
 
 681 
 
 Wade V. Saunders, 
 
 200 
 
 Wadley v. Jones, 
 
 702 
 
 Wagenblast*. McKean, 
 
 698 
 
 Waggeman ». "Bracken, 
 
 171 
 
 Wain V. Walters, 
 
 512 
 
 Wainwright v. Straw, 
 
 619 
 
 Wakefield v. Greenhood, 
 
 619 
 
 382 
 
 
 SECTIOir 
 
 Wakeman v. Dalley, 223 
 
 Walcott V. Harris, 758 
 
 Walden v. Murdock, 547 
 
 Wales V. Bogue, 758 
 Walker v. American National 
 
 Bank, 838 
 
 Walker v. Brown, 90 
 
 Walker v. Chapman, 584 
 
 Walker ». Fitts, ' 629 
 
 Walker v. Gregory, 493 
 
 Walker v. Herring, 384 
 
 Walker I). McCuUoch, 413 
 Walker v. Metropolitan Ins. Co., 50 
 Walker v. Mobile, etc.. Railroad, 711 
 
 Walker v. Norton, 523 
 
 Walker v. Perkins, 494 
 
 Wall V. Scales, 424 
 
 Wallace v. Harmstad (3 Harris, 
 
 Pa. 462), 640 
 Wallace v. Harmstad (8 Wright, 
 
 Pa. 492), 640 
 Wallace v. Lewis, 272 
 Wallace v. Sanders, 614 
 Wallace v. Wortham, 520 
 Waller v. Kentucky Bank, 94 
 Wallis V. Carpenter, 754 
 Wallis V. Wallis, 27 
 Wallman v. Society of Concord, 695 
 Wallwork v. Derby, 599 
 Walsh «. Mississippi Valley Trans- 
 portation Co., 572 
 Walters v. Odom, 63 
 Walworth v. Pool, 683 
 Wambaugh v. Bimer, 753 
 Waples V. Hastings, 272 
 Ward V. Allen, 475 
 Ward V. Henry, 78 
 Ward V. Kelly, 285 
 Ward V. Leviston, 395 
 Ward V. Walton, 667 
 Ward V. Ward, 763 
 Ward V. Williams, 711 
 Ward V. Wiman, 209, 219 
 Warder v, Arell, 734 
 Ware v. Adams, 624 
 Ware v, Cartledge, 265 
 
INDJEX TO CASES CITED. 
 
 Warfleld v. Booth, 
 Waring v. Favenck, 
 "Waring v. Mason, 
 Waring v. Smyth, 
 Warner v. Booge, 
 Warners. Campbell, 
 Warner v. Martin, 
 Warren v. Bean, 
 Warren v. Chapman, 
 Warren v. Gordon, 
 Warren v. Lynch, 
 Warren v. Mains, 
 Warren v. Smith, 
 Warren v. Swett, 
 Warren v. Walker, 
 Warren i>. Whitney, 
 Warring v. Williams, 
 Warwick v. Bruce, 
 .Warwick v. Cooper, 
 
 Section 
 
 479 
 
 362 
 
 97 
 
 640 
 
 445 
 
 421 
 
 850 
 
 750 
 
 471 
 
 758 
 
 16, 738 
 
 663 
 
 521 
 
 762 
 
 65 
 
 420, 451 
 
 644 
 
 274, 275 
 
 272 
 
 Washington Ice Co. v. Webster, 511 
 Washington Savings Bank v. Eckyj 639 
 Watchman v. Crook, 90 
 
 Waterman v. Barratt, 242 
 
 Waterman v. Button, 236 
 
 Waterman v. Meigs, 651 
 
 Waters ». Barral, 291 
 
 Waters v. Bean, 453 
 
 Watkins v. ISTash, 18, 765 
 
 Watkins v. Watkins, 505 
 
 Watson V. Brewster, 738, 743 
 
 Watson V. Charlemont, 215 
 
 Watson V. Dunlap, 441 
 
 Watson V. Jacobs, 521 
 
 Watson V. King, 339, 342 
 
 Watson V. Ledoux, 76, 88, 92 
 
 Watson V. Mahan, 605 
 
 Watson V. Pears, 749 
 
 Watson V. Spratley, 550 
 
 Watson V. Walker, 698 
 
 Watt V. Hoch, 570, 671 
 
 Watts's Appeal, 847 
 
 Watts V. Devor, 384 
 
 Watts V. Sheppard, 754 
 
 Waugh V. Blevins, 667 
 
 Waul V. Hardie, 99 
 
 Waul V. Kirkman, 512 
 
 Section 
 Wayne v. The General Pike, 590 
 Wear u. Jacksonville, etc., Bail- 
 road, 699 
 Weatherly v. Higgins, 680 
 Weaver v. Jones, 272 
 Weaver u. Waterman, 476, 495 
 Webb V. Baird, 171 
 Webb V. Fairmaner, 749 
 Webb V. Goldsmith, 415 
 Webber v. Blunt, 470 
 Weber v. Marshall, 505 
 Webster v. Bloimt, 576 
 Webster v. Coffin, 690 
 Webster v. Ela, 581 
 Webster v. Enfield, 676 
 Webster v. Potter, 104 
 Webster v. Bees, 668 
 Webster v. Wade, 683 
 Webster v. Woodford, 295 
 Webster v. Zielly, 510 
 Weckler v. First National Bank, 307 
 Weedon v. Wallace, 477 
 Weeks v. Maillardet, 653 
 Weeks V. Morrow, 86 
 Wehrum v. Kuhn, 417 
 Weimer v. Clement, 97 
 Weisenfeld v. Mispelhom, 137 
 Welch V. Welch, 277 
 Weld V. Lancaster, 491 
 Weld V. Nichols, 647 
 Wells V. Barnett, 246 
 Wells V. Evans, ' 401 
 Wells V. Milwaukee and St. Paul 
 
 Railway, 176 
 
 Wells V. Pacific Ins. Co., 600 
 
 Wells V. Kamsbottom, 766 
 
 Wells V. Wells, 261 
 
 Wells V. Wright, 680 
 
 Wennall v. Adney, 447, 453 
 
 Wentworth v. Wentworth, 425 
 
 West V. Blakeway, 33 
 
 West©. Cunningham, 97 
 
 West V. Gregg, 265 
 
 West V. The Uncle Sam, 625 
 West Boylston Manuf. Co. v. 
 
 Searle, 351 
 383 
 
INDEX TO CASES CITED. 
 
 Westchester Fire Ins. Co. v. 
 
 Westerman v. Means, 
 "Western v. Eussell, 
 Western v. Sharp, 
 Western Bank v. Kyle, 
 Westfall V. Parsons, 
 Westheimer v. Peacock, 
 Whaley v. Peak, 
 Wharton v. O'Hara, 
 Wheaton v. East, 
 Wheeden v. Fiske, 
 Wheeler v. Garsia, 
 Wheeler v. Knaggs, 
 Wheeler v. Nevins, 
 Wheeler v. Newton, 
 Wheeler v. Eeed, 
 Wheeler v. Eussell, 
 Wheelock v. Freeman, 
 Whelan v. Sullivan, 
 Whelan v. Whelan, 
 Whelpdale's Case, 
 Whincup V. Hughes, 
 Whitaker v. Hueske, 
 Whitbeck v. Whitheck, 
 Whitcomb v. Minchin, 
 White V. Buss, , 
 
 White V. Butt, 
 White V. Cooper, 
 White V. Corlies, 
 White V. Cox, 
 White V. Plbra, 
 White V. Hanchett, 
 White V. Heylman, 
 White V. Howard, 
 White V. Jones, 
 White V. Mann, 
 White V. Maynard, 
 White V. Proctor, 
 White V. Ross, 
 White V. Sanders, 
 White V. San Rafael, etc., 
 
 road, 
 White V. Smith, 
 White V. White, 
 White's Bank v. Toledo Ins. 
 384 
 
 Section 
 
 
 Section 
 
 Earle, 50, 
 
 Whitefleld v. Longfellow, 
 
 242 
 
 243 
 
 645, 646 
 
 Whitehead v. Potter, 
 
 
 428 
 
 755 
 
 Whitehead v. Root, 
 
 
 551 
 
 409 
 
 Whitehead v. Tuckett, 
 
 880 
 
 883 
 
 90 
 
 Whitehurst v. Boyd, 
 
 
 577 
 
 656 
 
 Whiting V. Daniel, 
 
 
 869 
 
 502 
 
 Whiting V. Dewey, 
 
 367 
 
 594 
 
 498 
 
 Whiting V. Heslep, 
 
 
 35 
 
 68, 92 
 
 AVTiiting v. Sullivan, 
 
 
 90 
 
 426 
 
 Whitmarsh v. Walker, 
 
 
 533 
 
 272 
 
 Whitney v. Cochran, 
 
 
 506 
 
 668 
 
 Whitney v. Dutch, 
 
 272 
 
 276 
 
 699, 700 
 
 Whitney v. Slayton, 
 
 479 
 
 758 
 
 839 
 
 Whitney v. Snyder, 
 
 
 195 
 
 827 
 
 Whitney v. Swett, 
 
 
 560 
 
 530 
 
 Whitsett V. Womack, 
 
 
 578 
 
 357 
 
 Whitsou V. Fowlkes, 
 
 
 647 
 
 458 
 
 Whittemore v. Adams, 
 
 
 739 
 
 639 
 
 Whittemore v. Gibbs, 
 
 
 550 
 
 513 
 
 Widner v. Lane, 
 
 
 709 
 
 227 
 
 Widoe V. Webb, 
 
 418 
 
 471 
 
 240 
 
 Wiggin V. Day, 
 
 200 
 
 221 
 
 620 
 
 Wiggin V. Peters, 
 
 
 749 
 
 97 
 
 Wiggins V. Keizer, 
 
 439 
 
 537 
 
 535 
 
 Wigglesworth v. Steers, 
 
 
 302 
 
 251 
 
 Wilbur V. How, 
 
 
 481 
 
 458 
 
 Wilburn v. Larkin, 
 
 
 353 
 
 534 
 
 Wilby V. Phinney, 
 
 
 94 
 
 379 
 
 Wilcox V. Howland, 
 
 242 
 
 246 
 
 183 
 
 Wilcox V. Roath, 
 
 
 276 
 
 303 
 
 Wilder v. Weakley, 
 
 
 85 
 
 409 
 
 Wildes V. Dudlow, 
 
 
 523 
 
 537 
 
 Wildey v. Collier, 
 
 
 492 
 
 145 
 
 Wildman ». Taylor, 
 
 59 
 
 577 
 
 783 
 
 Wiley V. Moor, 
 
 
 372 
 
 76 
 
 Wiley V. Shank, 
 
 
 357 
 
 627 
 
 Wiley V. Shoemak, 
 
 
 699 
 
 49 
 
 Wilhelm v. Caul, 
 
 
 657 
 
 334 
 
 Wilkinson v. Cook, 
 
 
 617 
 
 132 
 
 Wilkinson v. Scott, 
 
 
 65 
 
 711 
 
 Wilkinson v. Tousley, 
 
 
 489 
 
 Bail- 
 
 Wilks V. Back, 
 
 
 853 
 
 646 
 
 Willard v. Stone, 
 
 
 272 
 
 591 
 
 Willett V. Forman, 
 
 
 214 
 
 236 
 
 Williams's Case, 
 
 
 215 
 
 .Co., 807 
 
 Williams, Ex parte 
 
 
 44 
 
 v^ 
 
INDEX TO OASES CITED. 
 
 Williamg v. Bayley, 
 "Williams v. Birbeck, 
 Williams v. Brown, 
 'Williams v. Bugb'ee, 
 "Williams v. Butler, 
 "Williams t>. Colby, 
 "Williams v. Davis, 
 "Williams v. Dyde, 
 Williams v. Getty, 
 Williams ». Greer, 
 Williams v. Inabnet,' 
 Williams v. Ketclium, 
 Williams v. Phelps, 
 Williams v. Stanton, 
 Williams v. United States I 
 Williams v. "Vanderbilt, 
 Williams V. Wentworth, 
 Williamson v. Clements, 
 Williamson v. McClure, 
 Williamson v. Sammons, 
 Willing V. Peters, 
 "Willion V. Berkley, 
 Willis V. Martin, 
 Willoughby v. Backhouse, 
 Wilmouth V. Patton, 
 Wilson V. Bigger, 
 Wilson V. Cromwell, 
 Wilson V. Edmonds, 
 Wilson V. Henderson, 
 Wilson V. Hill, 
 Wilson V. Hunter, 
 Wilson V. Martin, 
 Wilson V. Oldham, 
 Wilson V. Sergeant, 
 Wilson V. Short, 
 Wilson V. Stratton, 
 Wilson V. Wilson, 
 Wilt V. Welsh, 
 Winchell v. Edwards, 
 Windsor v. Jacob, 
 Winebrinner v. Weisigir, 
 Wing V. Chase, 
 Wingi!. Clark, 
 Wingo V. Brown, 
 Winpenny v. French, 
 Winslow V. Bailey, 
 
 Sbction 
 
 
 Sbotiox 
 
 478 
 
 Winslow V. Patten, 
 
 600 
 
 886 
 
 Winslow V. Winslow, 258, 
 
 681, 601 
 
 267, 272 
 
 Winsor v. Savage, 
 
 706 
 
 448 
 
 Winter v. Hite, 
 
 616 
 
 707 
 
 Winter v. Kinney, 
 
 470 
 
 143 
 
 Winton V. Wilks, 
 
 671 
 
 516 
 
 Wintz V. Morrison, 
 
 218 
 
 ' 448 
 
 Witbeck v. Waine, 
 
 81 
 
 888 
 
 Withers v. Larrabee, 
 
 632 
 
 21 
 
 Withers v. Bichardson, 
 
 638 
 
 800, 305 
 
 Witte V. Derby Pishing Co., 
 
 814 
 
 204 
 
 Wolfe V. Scarborough, 
 
 675 
 
 247 
 
 Wood 0. Auburn, etc., Bailroad, 877 
 
 414 
 
 Wood V. Corcoran, 
 
 621 
 
 ink, 695 
 
 Wood V. Corl, 
 
 602 
 
 627 
 
 Wood V. Goodrich, 
 
 214 
 
 85 
 
 Wood V. Hardisty, 
 
 124 
 
 420 
 
 Wood V. Jones, 
 
 503 
 
 576 
 
 Wood V. McCain, 
 
 707 
 
 96 
 
 Wood V. O'Kelley, 
 
 120, 895 
 
 418, 452 
 
 Wood V. Eobinson, 
 
 200 
 
 19 
 
 Wood V. Sohlater, 
 
 426 
 
 887 
 
 Woodalli). Greater, 
 
 68 
 
 413 
 
 Weodburn v. Cogdal, 
 
 647 
 
 699 
 
 Woodburn v. Stout, 
 
 155 
 
 800 
 
 Wooden v. Shotwell, 
 
 65 
 
 213 
 
 Woodford V. Leavenworth, 
 
 706 
 
 841,444 
 
 Woodford V. Patterson, 
 
 661 
 
 643 
 
 Woodruff V. McG^hee, 
 
 860 
 
 671 
 
 Woodruff V. Noyes, 
 
 661 
 
 899 
 
 Woods V. Hynes, 
 
 195 
 
 532 
 
 Woods V. North, 
 
 691 
 
 285, 291 
 
 Woods V. Pindall, 
 
 SOI 
 
 94 
 
 Woods V. Bidley, 
 
 730 
 
 81 
 
 Woods V. State, 
 
 684 
 
 647 
 
 Woodward v. Camp, 
 
 763 
 
 678 
 
 Woodward v. Pels, 
 
 426 
 
 265 
 
 Woodward v. Miles, 
 
 647 
 
 128 
 
 Woodward v. Woodward, 
 
 627 
 
 723 
 
 Woodworth v. Wilson, 
 
 183 
 
 494 
 
 Woolley V. Constan^ 
 
 653 
 
 413 
 
 Wooten V. Miller, 
 
 724 
 
 647 
 
 Wooten V. Bead, 
 
 681 
 
 120 
 
 Wooton V. Hinkle, 
 
 481 
 
 •492 
 
 Worcester v. Eaton, 
 
 140, 142 
 
 213 
 
 Word V. Cavin, 
 
 96 
 
 385 
 
INDEX TO CASES CITED. 
 
 
 Section 
 
 
 Section 
 
 "Workman t>. Campbell, 
 
 707 
 
 Wyman ». Smith, 
 
 523 
 
 "Worrall v. Munn, 327, 377 
 
 530, 764, 
 765 
 409 
 
 Wynne v. Jackson, 
 
 728 
 
 Worth V. Case, 
 
 Xenos V. Wickham, 
 
 821, 762 
 
 Worthington v. Hylyer, 
 
 22 
 
 
 
 "Worthy V. Jones, 
 
 539 
 
 Tale V. Kex, 
 
 471 
 
 "Wray v. "Wray, 
 
 212, 291 
 
 "yates V. Bond, 
 
 96 
 
 Wright V. Bartlett, 
 
 421 
 
 Tates V. Freckleton, 
 
 318 
 
 "Wright V. Burbiink, 
 
 707 
 
 "Teager v. Wallace, 
 
 392 
 
 "Wright 17. Calhoun, 
 
 387 
 
 Yeakle v. Jacob,' 
 
 633 
 
 "Wright V. DeGroff, 
 
 534 
 
 Teates v. Williams, 
 
 458 
 
 Wright V. Germain, 
 
 276 
 
 Yerby v. Grigsby, 
 
 330 
 
 Wright V. Hart, 
 
 97 
 
 Yosti V. Laughran, 
 
 227 
 
 Wright V. Haskell, 
 
 676 
 
 Young V. Bell, 
 
 272 
 
 Wright V. Stavert, 
 
 532 
 
 Young V. Dake, 
 
 532 
 
 Wright V. Steele, 
 
 272 
 
 Young V. Daniels, 
 
 752 
 
 Wright V. Wakefield, 
 
 17 
 
 Young V. Harris, 
 
 730 
 
 Wright V. Weeks, 
 
 58,513 
 
 Young V. Stevens, 
 
 669 
 
 Wright V. Wright (2 Halst. 
 
 175), 251, 
 
 639 
 
 437), 424 
 
 York County Bank v. Stein, 
 
 383 
 
 Wright V. Wright (54 N. Y 
 
 Zabel V. Schroeder, 
 
 503 
 
 Wunderliu v. Cadogan, 
 
 22, 370 
 
 Zimmerman v. Sale, 
 
 168 
 
 Wyman v. American Powder Co., 120 
 
 Zouch V. Parsons, 162, 155, 
 
 264, 276, 
 
 Wyman v. Goodrich, 
 
 49 
 
 
 278 
 
 Wyman v. Heald, 
 
 213 
 
 Zulkee v. Wing, 
 
 99 
 
 386 
 
 
 • 
 
 
*a